Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF091532.
MURRAY, J.
Defendant Douglas Edward Lovelace entered a negotiated plea of no contest to two counts of willful child cruelty (counts 1 and 3). He also admitted an enhancement in connection with count 3 that he personally inflicted great bodily injury on a child under the age of five. In exchange, the trial court dismissed the remaining charges and enhancements. The plea did not include any stipulated sentence.
At the March 2010 sentencing hearing, the trial court imposed the upper term of six years on count 3 and the upper term of six years on the great bodily injury enhancement. The court also imposed the upper term of six years on count 1, but ran that term concurrently to the six-year term imposed on count 3. The aggregate term of imprisonment imposed was 12 years. Because the conviction on count 3 as enhanced was a violent felony, defendant accrued conduct credits at a rate of only 15 percent of actual custody. (Pen. Code, §§ 667.5, subd. (c)(8), 2933.1, subd. (a).)
On appeal, defendant argues his sentence reflects the impermissible dual use of the same fact to impose the upper term on both the base term offense and its enhancement. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Factual Summary
We draw our account from the preliminary hearing (which was the stipulated basis for defendant’s plea), except where noted.
The victim was defendant’s infant son, born in 2009. In his mitigation statement, defendant asserted that when the infant was born, he had recently returned from a tour of duty with the Air Force in Iraq, and was anticipating a deployment to Afghanistan. The infant became colicky about four weeks after birth.
On May 26, 2009, defendant’s wife went to the pharmacy to get a medication for colic, leaving defendant at home with the infant. Because the infant was running a high fever when defendant’s wife got home, they eventually took him to the emergency room.
The treating physician examined the infant both visually and through X-rays and a CT scan. He determined that the infant had numerous injuries, including a rug burn on his face, bruising, two fractured ribs, a fractured forearm, a fractured thumb, and injuries to his left eye and his brain that resulted in bleeding. The rug burn covered the left side of the infant’s face, from the eye down to the chin. One of the infant’s fractured ribs appeared to be a fresh injury and the other appeared to be healing. The infant had scratches in both ears and in front of the left ear. He also had a scratch on his neck. He had a serious bruise on the bottom of his tongue, as well as bruises on his chin and both shins and his back. He also had light bruising on both thighs. The CT scan revealed bleeding on the brain consistent with head trauma. While at the hospital, the infant suffered multiple seizures. The doctor believed the infant was the victim of Shaken Baby Syndrome.
After his transfer to another hospital for treatment, the infant’s brain continued to hemorrhage, and he had difficulty breathing. His seizures continued. A specialist there concluded that the infant’s head trauma and broken arm were consistent with Shaken Baby Syndrome.
When initially interviewed by the police, defendant made false statements about how the infant received his injuries. He said the rash on the infant’s face came from the crib. The scratches, defendant claimed, were from the infant scratching himself with his fingernails. Despite the fact the infant did not have teeth, defendant said the infant may have bit his own tongue, thereby causing the bruise to the tongue. He repeatedly denied shaking or hurting the infant.
When a detective told defendant that he was not being truthful, defendant admitted that he had lied. He said he “couldn’t take [the crying] anymore, ” he was “losing sleep” and “had done some stuff where the baby might have got hurt.” On the night before, he grabbed the infant, who was lying on his stomach, and dragged him across the carpet, causing the rug burns to the infant’s face. Defendant admitted that on other occasions he became angry and tried to get the infant to stop crying by wrapping an arm around the infant and forcing the infant’s face into his chest. He also said he squeezed the infant and dropped him into his bassinette from a height of about two feet. He confirmed that his wife did not have any knowledge of his actions.
When the detective described the infant’s injuries to defendant, his demeanor did not change. He did not react emotionally.
In a report admitted by stipulation at the sentencing hearing, a doctor noted that the infant’s brain size had dropped from the 75th to the 15th percentile. The infant at best might be able to live with some independence, and at worst would need full-time care.
Sentencing Proceedings
The probation report recommended an upper term for count 3, a consecutive sentence for count 1, and an upper term for the enhancement. It cited the aggravated nature of the offense, the particular vulnerability of the victim, and the advantage defendant had taken of a position of trust, as well as the serious danger defendant’s violent conduct presented to society. It acknowledged the mitigating factor of the lack of a prior criminal record.
Defendant had entered a waiver of his right to have a jury determine whether to impose an upper term on the enhancement. As of January 2010, this was not necessary. The statute has been amended to omit a presumption in favor of the middle term through 2011. (Pen. Code, § 1170.1, subd. (d); see Stats. 2009, ch. 171, § 5.)
There is a handwritten marginal note next to this factor in the report’s discussion of factors against probation that states, “Not really, ” and at sentencing the trial court stated that the position of trust factor did not apply.
At the outset of the sentencing hearing, the trial court noted it had reviewed the probation report and defendant’s statement in mitigation.
The gist of defense counsel’s argument referenced defendant’s abusive upbringing, admitted defendant’s anger management difficulties, noted the stress defendant was under at the time of the offenses, asserted defendant was devastated by what he had done, and cited his otherwise law-abiding character. Counsel argued that severely punishing defendant would not bring about any change in the circumstances of the infant. In his rebuttal, he also asserted that if the infant had died and defendant had been convicted of manslaughter, defendant would be subject to a less severe punishment than what was being recommended.
We observe that had the infant died, defendant could also have been convicted of assault on a child likely to produce great bodily injury resulting in death (Pen. Code, § 273ab, subd. (a)), in which case the sentence would have been 25 years to life.
The prosecutor emphasized that the injuries in the present case were at the far end of the spectrum for either willful child cruelty or the infliction of great bodily injury. He conceded that defendant did not take advantage of a position of trust to commit the offense. The prosecutor also pointed out the possibility that defendant might commit a similar offense under similar circumstances, which indicated he presented a serious danger to society.
In announcing its sentencing decision, the trial court noted that it did not think anyone would have been arguing for probation had defendant beaten an adult out of anger, and commented that any sympathy for defendant was dispelled when considering the infant’s circumstances. In denying probation, the court expressed the opinion that defendant “presents a danger to children, ” as well as “a danger to anybody who provokes him.” In imposing sentence, the trial court stated, “certainly the victim was vulnerable, ” and further stated, “[t]he crime does involve great violence, great bodily harm, no doubt about that, and he has engaged in violent conduct.” As for mitigating circumstances, the trial court found only the lack of a prior record. The court stated, “I don’t find that he voluntarily acknowledged wrongdoing prior to the arrest. At least if he did, it certainly is not a significant factor in mitigation. [¶]... He’s in denial until he’s in a box.”
Thus, the court found that the upper term was warranted “as to both the underlying crime as well as the enhancement. The enhancement does have a triad, and on a scale of great bodily injury, ... this is something that... short of death, this is probably the most serious injury one can inflict. So I think it’s an upper[-]term case both ways.” After imposing sentence, the trial court stated, “I want this community to know and the world to know that this type of behavior is not tolerated.”
Discussion
I. Standard of Review
A trial court’s sentencing choice is subject to review for an abuse of discretion. (People v. Moberly (2009) 176 Cal.App.4th 1191, 1196 (Moberly).) A trial court abuses its discretion when it relies upon circumstances that are not relevant to the sentencing decision or that otherwise constitute an improper basis for the decision. (Moberly, supra, at p. 1196.)
II. Dual Use
A trial court “‘is prohibited to some extent’” from using the same factor to support more than one sentencing choice. (Moberly, supra, 176 Cal.App.4th at p. 1197, quoting People v. Scott (1994) 9 Cal.4th 331, 350 & fn. 12 (Scott), italics added by Moberly.) Scott describes three such circumstances: (1) the fact of an enhancement cannot be a factor in support of an upper term for the underlying offense unless the court strikes the enhancement, (2) a fact that is an element of the crime upon which punishment is imposed cannot be used to impose the upper term, and (3) the same factor cannot support both imposition of the upper term and the choice to impose consecutive sentences for separate offenses. (Scott, supra, 9 Cal.4th at p. 350 & fn. 12; accord, Moberly, supra, 176 Cal.App.4th at pp. 1197-1198.)
However, evidence of conduct exceeding the minimum necessary to establish an offense or an enhancement that makes it distinctly worse than the base line is a proper basis for a court to impose an upper term. (People v. Castorena (1996) 51 Cal.App.4th 558, 562 (Castorena); People v. Weaver (2007) 149 Cal.App.4th 1301, 1322, fn. 22 (Weaver).) Also, if the record identifies more than one aggravating factor, any error can be harmless if it is not reasonably probable that the trial court would rule differently on remand (People v. Black (2007) 41 Cal.4th 799, 817-818 & fn. 7; People v. Avalos (1984) 37 Cal.3d 216, 233.) This would be particularly likely where a trial court has not identified any significant factors in mitigation to weigh against the aggravating factors.
Defendant chides the trial court and probation report for failing to differentiate between the offense and the enhancement in their focus on the degree of the infant victim’s injuries. He contends this resulted in an impermissible dual use of facts for more than one sentencing decision. Defendant is wrong. “[T]he dual use of a fact or facts to aggravate both a base term and the sentence on an enhancement is not prohibited.” (Moberly, supra, 176 Cal.App.4th at p. 1198.)
In support of his contention, defendant relies on People v. Velasquez (2007) 152 Cal.App.4th 1503 (Velasquez). However, defendant’s reliance on Velasquez is misplaced.
As relevant here, in Velasquez, the defendant was sentenced to the upper term for assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and to the upper term for a firearms use enhancement (Pen. Code, § 12022.5, subd. (a)), in addition to the mandatory term for a gang enhancement (Pen. Code, § 186.22, subd. (b)(1)). (Velasquez, supra, 152 Cal.App.4th at p. 1510.) On remand after the decision in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 857], the defendant contended that imposition of the upper term sentences for assault and the related firearm use enhancement, based on factual determinations made by the court, instead of the jury, violated his right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. (Velasquez, supra, at p. 1513.) In the course of discussing this issue (id. at pp. 1513, 1515-1517), the court noted in a footnote that two recidivist factors were necessary to avoid any constitutional violation in imposing both upper terms because “[t]he same fact cannot be used to impose an upper term on a base count and an upper term for an enhancement” (id. at p. 1516, fn. 12). The court erroneously cited Scott for this proposition. The use of the same fact to justify imposition of the upper term for both the crime and enhancement were not listed among the impermissible dual use scenarios in Scott. For this reason, Moberly rejected the footnoted observation in Velasquez as unsupported dicta. (Moberly, supra, 176 Cal.App.4th at p. 1198.) We agree, and decline to follow Velasquez for the same reason.
Instead, we find Moberly persuasive. In Moberly, the trial court used the same set of factors for the upper terms on the underlying base term offense and the enhancement. (Moberly, supra, 176 Cal.App.4th at p. 1196.) The court in Moberly concluded this was not any different than using the same fact or facts to impose upper terms on several different underlying offenses or to impose several consecutive sentences, a practice that other cases had sanctioned. (Id. at p. 1198, citing People v. Robinson (1992) 11 Cal.App.4th 609, 612, 615-616 [which remanded nonetheless because one factor improper and several mitigating factors]; People v. Williams (1984) 157 Cal.App.3d 145, 156; People v. Price (1984) 151 Cal.App.3d 803, 809, 811-812 & fn. 5, 815-816 (Price).)
Defendant contends the reasoning in Moberly is only dictum because the court could have upheld the sentence on the harmless error basis of multiple valid aggravating factors. However, that was not the path the Moberly court expressly chose to take, and in any event the availability of an alternative holding does not diminish the persuasive value of its reasoning.
In his reply brief, defendant references the holding in Price, the progenitor of the line of cases ending with Moberly. He asserts that Price is “distinguishable from the instant case, ” then accurately describes Price as involving a finding that “the trial court violated the dual use prohibition by using the same facts to select upper term[s] and sentence consecutively, but [finding] no error in the dual use of facts to select the upper term on the four different [offenses].” Like the court in Moberly, we view Price as analogous. We therefore agree with Moberly that using the same fact to impose the upper term on both the underlying base term offense and an enhancement is not any different than using it to impose more than one upper term for multiple offenses or to impose multiple consecutive sentences.
III. Multiple Aggravating Factors
In support of his major premise that it was impermissible for the trial court to use the same factor for both the offense and the enhancement, defendant also challenges the findings that the injuries were severe and the infant victim was vulnerable (claiming these were inherent in both the crime and enhancement), that his violent conduct posed a serious danger to society (claiming this is redundant of the degree of injury), and that he did not make a significant early acknowledgment of wrongdoing of his own volition. Presumably he thereby seeks to establish there are no aggravating factors or avoid application of the harmless error rule for multiple valid aggravating factors.
As his major premise is faulty, we do not need to consider these subsidiary contentions. Nevertheless, we conclude that the trial court did not abuse its discretion in determining that the degree of the infant’s injuries far exceeded that which was necessary to establish the great bodily injury enhancement. The injuries here were horrific, and we agree with the trial court’s observation that “short of death, this is probably the most serious injury one can inflict.” Nor did the trial court abuse its discretion in relying upon its observation that the crime involved “great violence” and that defendant engaged in “violent conduct.” Defendant’s conduct was of a degree far in excess of that required to establish the elements of the underlying offense. These circumstances could validly be considered aggravating factors. (Castorena, supra, 51 Cal.App.4th at p. 562; Weaver, supra, 149 Cal.App.4th at p. 1322, fn. 22.) Indeed, the trial court would also have been justified in finding that defendant’s conduct involved “acts disclosing a high degree of cruelty, viciousness, or callousness.” (Cal. Rules of Court, rule 4.421(a)(1).) And although stated as a reason for denying probation, it would not have been an abuse of discretion for the court to rely on its determination that defendant is a danger to children and “anybody who provokes him” as an aggravating factor justifying imposition of the upper term. (Cal. Rules of Court, rule 4.421(b)(1) [“The defendant has engaged in violent conduct that indicates a serious danger to society”].)
Finally, the record demonstrates that the court did not abuse its discretion when it determined that defendant’s admission of wrongdoing was an insignificant mitigating factor. (Cal. Rules of Court, rule 4.423(b)(3) [“The defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process”].) Defendant initially denied any wrongdoing here. Indeed, there was evidence of old injuries, and defendant did not admit any wrongdoing when those injuries were inflicted. He admitted wrongdoing only after the baby was taken to the hospital and then only when he found himself “in a box” during the interrogation by the detective.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, P.J., BUTZ, J.