Opinion
F083237
01-24-2023
THE PEOPLE, Plaintiff and Respondent, v. NATHAN HENRY CELIS, Defendant and Appellant.
Laura Arnold, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F20906767. Gary R. Orozco, Judge.
Laura Arnold, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Plaintiff and Respondent.
OPINION
MEEHAN, ACTING P. J.
INTRODUCTION
Following the hospitalization of his infant son for serious injuries, defendant Nathan Henry Celis was charged with and convicted by jury of assault on a child under the age of eight years by means of force likely to produce great bodily injury (GBI) and resulting in the child becoming comatose due to brain injury (Pen. Code, § 273ab, subd. (b); count 1), and felony child endangerment with an enhancement for personal infliction of GBI (§§ 273a, subd. (a), 12022.7, subd. (d); count 2). The trial court sentenced defendant to a mandatory term of life in prison with the possibility of parole on count 1. On count 2, the court imposed the middle term of four years with an additional upper term of six years for the GBI enhancement, stayed under section 654.
All further statutory references are to the Penal Code unless otherwise stated.
Concurrently, in a separate case resolved by plea agreement, defendant was sentenced to the middle term of three years for willful infliction of corporal injury, in violation of section 273.5, subdivision (a).
On appeal, defendant claims his conviction on count 1 is not supported by substantial evidence that his son was rendered comatose due to brain injury, and he requests we take judicial notice of three medical articles pertaining to that issue. Defendant also seeks remand for resentencing in light of the amendment to section 654 under Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill 518), effective January 1, 2022.
The People object to defendant's request for judicial notice and dispute entitlement to relief from his conviction on count 1. They concede that Assembly Bill 518 applies retroactively, but contend that remand for resentencing is unnecessary in this case.
As discussed herein, we deny defendant's request for judicial notice of the articles and find the jury's verdict on count 1 is supported by substantial evidence. With respect to Assembly Bill 518, we conclude that defendant is entitled to remand to seek relief under section 654 as amended. We otherwise affirm the judgment.
FACTUAL SUMMARY
I. Injuries to N.C.
N.C. was born in early August 2019 to defendant and his girlfriend, M.M. The family lived in a three-bedroom apartment with M.M.'s stepfather, R.S., and his longtime girlfriend, Y.T. Y.T.'s son, R.T., also lived in the apartment and his girlfriend, V.H., came and went. M.M. was a stay-at-home mother and defendant had a new job as a security guard working the nightshift. R.S., Y.T., and R.T. worked during the day, and R.T. also took evening classes. V.H. was a college student and, between school and work, was gone during the day.
Defendant and M.M. were the only ones who took care of N.C. and they spent most of their time in their bedroom with him, with the door shut. On rare occasions, the couple left N.C. with R.S. while they ran an errand or went for food. Y.T. and V.H. testified they had almost no contact with N.C. and only saw him a couple of times, and there was some tension between M.M. and Y.T. R.S., Y.T., and V.H. never heard anything out of the ordinary with regard to N.C., but R.S. intervened several times when M.M. and defendant were arguing. On one occasion, he entered their bedroom when he heard a thump that concerned him. Although M.M. looked upset, R.S. did not see any injuries or anything broken.
On the morning of September 4, 2019, V.H. left for school between 7:00 and 7:30 a.m. She did not see defendant or M.M., but she heard N.C. crying normally. By then, R.S., Y.T., and R.T. were already gone.
That afternoon, M.M. called R.S. at work, upset, and told him that N.C. was barely responding. R.S. was working approximately 45 minutes away and told her to call 911. As he headed home, he called Y.T., who was already on her way home from work. Y.T. arrived home several minutes ahead of paramedics. M.M. was on the phone with 911 at the time.
Y.T. entered M.M.'s and defendant's bedroom. Defendant was on the bed with N.C., crying, and N.C. was not responsive; he was not moving and his eyes were closed. Defendant told Y.T. he did not know what happened. She saw two bruises on N.C. 's face, and defendant told her they were from being burped. R.S. testified he previously noticed the bruises and when he asked, defendant also told him they were from burping, which R.S. thought was plausible because he had seen defendant burping N.C. by laying N.C. across his forearm with N.C. 's face in his hand. M.M., too, told one of the responding police officers that the bruises on N.C. 's face were from defendant burping him.
By the time R.S. arrived home, N.C. and M.M. were gone. Defendant and the police were there, and defendant appeared a little upset. He told R.S. he did not know what happened, but N.C. was not responding.
N.C. was taken by ambulance to the hospital. He had visible bruising on both cheeks, his chin and his chest; some redness to his abdomen, left eye and eyelid; and a scratch on the bridge of his nose.
II. Defendant's Statements
At the apartment, defendant told a police officer that he got home from work around 5:30 that morning, and M.M. left around 9:00 a.m. He was the only one at home, and he slept from 9:00 a.m. to 3:15 p.m. He woke up when M.M. returned home, and, several minutes later, she said N.C. was unresponsive and called 911.
Defendant appeared knowledgeable about and involved in N.C. 's care. He told the officer N.C. was fussy, had gas pains, and was not burping or pooping as he should be but otherwise, he had no medical issues. Defendant demonstrated that he burped N.C. by laying N.C. across his forearm, facedown, with N.C. 's face between his index finger and thumb. Defendant said that may have caused some bruising to N.C. 's face, so he had switched to the more traditional method of burping N.C. on his shoulder.
Less than one hour later, the officer spoke to defendant a second time at the hospital, after defendant was informed that N.C. had a brain injury and broken ribs. Defendant told the officer he did not know how N.C. was injured, but he stated that the week before, he was at a friend's house for a small barbecue. While he was outside on the patio, N.C. was inside on a recliner. There were two other children playing around inside the same room and he thought perhaps N.C. was stepped on or fell. However, N.C. was in his line of sight through the glass door, and he did not see anything happen. The officer testified that defendant was adamant he never let N.C. out of his sight and never let anyone else watch N.C., and he denied abusing N.C.
Approximately three weeks later, defendant met with detectives and gave a statement. Defendant said he did not know how N.C. 's face got bruised, but he demonstrated how he burped N.C. and held N.C. 's chin. He also mentioned the barbecue at his friend's house with other children present and playing near where N.C. was placed, but he reiterated that N.C. was not out of his sight and he did not see anything happen to N.C.
On the day N.C. was injured, only defendant and M.M. were home. Defendant denied being responsible for N.C. 's injuries and maintained that he did not know how N.C. was injured. He said M.M. left around 1:00 to pay a parking ticket and returned home around 3:15. She woke him up in panic because N.C. was not responding to her touch. Defendant said N.C. was limp, his eyes were closed, and he was not responding to them. Defendant retrieved a wet towel and when he put water on N.C. 's stomach, arms and legs, N.C. stiffened but still did not respond to their touch so M.M. called her father and then 911.
III. Medical Testimony
Dr. Kodali, a child advocacy pediatrician and pediatric hospitalist, saw N.C. at Valley Children's Hospital two days after his admission, following a referral from his treating physician. Dr. Kodali described N.C. as critically ill and encephalopathic. N.C. was on oxygen and oxygen support, and he had been prescribed a third-line medication, phenobarbital, for his seizures after the first- and-second-line medications did not work.
N.C. had 28 rib fractures, 25 of which were new and three of which were healing. Dr. Kodali testified that injuries of that type are caused by abusive, forceful squeezing. N.C. also had subdural hemorrhages, or bleeding inside his skull; multiple injuries to his brain tissue, some of which were new and some of which were old; a fractured skull; a ligamentous injury to his neck; hemorrhages to the retinal layer of both eyes; chest bruising; bleeding in the layers around his lungs; and injuries to his lung tissue and heart. Dr. Kodali testified that the skull fracture was caused by some sort of impact, and the chest area injuries were caused by serious, violent, blunt force trauma. The injury to N.C. 's neck was consistent with being shaken and subdural hemorrhages such as his result from either forceful shaking or whiplash from a car crash. In Dr. Kodali's opinion, N.C. 's injuries were diagnostic of child abuse, with the retinal hemorrhages being specific to child abuse.
Given the nature of N.C. 's injuries, Dr. Kodali testified that there were at least two mechanisms: one, squeezing and shaking, which can occur at the same time, and, two, blunt force trauma to the chest. In her opinion, the injuries to N.C. 's lungs probably occurred within approximately 30 to 60 minutes prior to his decompensation, or the point he began to display noticeable symptoms. The injuries to N.C. 's brain occurred within approximately 30 minutes to four hours of decompensation. The chest injuries would be marked by trouble breathing and the brain injuries would be marked by seizures, difficulty staying awake, lethargy and, sometimes, fussiness. Dr. Kodali testified that the blunt force trauma to the chest could have occurred at the same time as the shaking or a little bit later, but it could not have occurred earlier. She also testified that although it was possible the shaking could have occurred as many as 24 hours before decompensation, it was very unlikely. In her opinion, the shaking occurred within four hours of N.C. 's symptoms.
With respect to N.C. 's brain injury, Dr. Kodali testified N.C. was nonresponsive and in a comatose state when she saw him, primarily as a result of his brain injury. She explained that although comatose is not a medical term that is used, it is what she meant by encephalopathic. N.C. was an 11 on the Glasgow Coma Scale of 3 to 15, with normal being 15, but she explained that the scale is used once for an initial assessment on arrival, usually in an emergency room, and is a shorthand method of communicating information quickly among members of the treatment team. The assessment is not repeated and does not speak to change in a patient's mental status.
DISCUSSION
I. Substantial Evidence Challenge to Count 1
A. Background
Defendant was charged with violating section 273ab, subdivision (b), which provides, in relevant part, that "[a]ny person, having the care or custody of a child who is under eight years of age, who assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child becoming comatose due to brain injury ..., shall be punished by imprisonment in the state prison for life with the possibility of parole.. . ."
Defendant challenges the evidence supporting the jury's finding that N.C. became comatose due to brain injury. With respect to that element, the trial court instructed the jury as follows:
"An act causes a coma if:
"1. The coma was the natural and probable consequence of the act;
"2. The act was a direct and substantial factor in causing the coma; and
"3. The coma would not have happened without the act.
"A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence.
"A substantial factor is more than a trivial or remote factor, however it does not need to be the only factor that caused the coma."
Defendant did not object to the jury instruction for count 1 or request a pinpoint instruction, as he acknowledges, and he does not advance a claim of instructional error in this appeal.
Based on the newly submitted evidence subject to his request for judicial notice, discussed below, defendant claims Dr. Kodali's testimony is insufficient to support the jury's finding that N.C. was rendered comatose as a result of the brain injury. For the reasons that follow, we conclude otherwise.
B. Standard of Review
"The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense" (Carella v. California (1989) 491 U.S. 263, 265, citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio)). On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence "'is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) "The record must disclose substantial evidence to support the verdict-i.e., evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (Zamudio, supra, at p. 357.)
"In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (Zamudio, supra, 43 Cal.4th at p. 357.) "'[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt ....'" (People v. Nguyen, supra, 61 Cal.4th at pp. 1055-1056.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict" (Zamudio, supra, at p. 357), but "speculation, supposition and suspicion are patently insufficient to support an inference of fact" (People v. Franklin (2016) 248 Cal.App.4th 938, 951; accord, People v. Marshall (1997) 15 Cal.4th 1, 35; People v. Xiong (2013) 215 Cal.App.4th 1259, 1268).
C. Analysis 1. Request for Judicial Notice of Three Medical Articles
As an initial matter, we address defendant's request for judicial notice of the following three articles: Slooter et al., Updated nomenclature of delirium and acute encephalopathy: statement of ten Societies (Feb. 13, 2020) Springer Nature, an online article available at <https://doi.org/10.1007/s00134-019-05907-4> (as of Jan. 24, 2023); Wilson, What is the Difference Between Sedation and General Anesthesia (last updated Dec. 29, 2022) News Medical Life Sciences, an online article available at <https://www.news-medical.net/health/What-is-the-Difference-Between-Sedation-and-General-Anesthesia.aspx> (as of Jan. 24, 2023); and American Society of Anesthesiologists, Committee on Quality Management and Departmental Administration, Continuum of Depth of Sedation: Definition of General Anesthesia and Levels of Sedation/Analgesia (last amended Oct. 23, 2019) an online article available at <https://www.asahq.org/standards-and-guidelines/continuum-of-depth-of-sedation-definition-of-general-anesthesia-and-levels-of-sedationanalgesia> (as of Jan. 24, 2023). The People object to the request on the grounds that in reviewing a claim of insufficient evidence, it is not proper to take judicial notice of articles that were not before the trier of fact and that the contents of the articles are not judicially noticeable in any event.
Defendant advances no persuasive argument that this case presents an exception to the general principle that a defendant may not seek to overturn a jury's verdict based on a submission of evidence that was not presented to the jury. (People v. Peevy (1989) 17 Cal.4th 1184, 1207 ["[A]n appellate court generally is not the forum in which to develop an additional factual record, particularly in criminal cases when a jury trial has not been waived."]; accord, People v. Castillo (2010) 49 Cal.4th 145, 157.) Notably, the three articles predate the jury trial and defense counsel elected to rest on the prosecution's evidence rather than attempt to refute or undermine Dr. Kodali's testimony through a defense expert, a decision we must presume served a rational tactical purpose. (People v. Mickel (2016) 2 Cal.5th 181, 198.)
The foregoing, alone, is dispositive of defendant's request for judicial notice. In addition, however, the articles' contents do not meet the definition of "[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy." (Evid. Code, § 452, subd. (h).) To the contrary, experts within any given field commonly disagree with one another, and evidence of N.C. 's injuries and whether he was or was not comatose required testimony by a qualified expert witness. (Id., §§ 800, 801.)
We recognize that in Tokash and Delgado, the appellate courts took judicial notice that a Glasgow Coma Scale score of eight or less reflected a comatose state. (People v. Tokash (2000) 79 Cal.App.4th 1373, 1377 (Tokash); People v. Delgado (2013) 213 Cal.App.4th 660, 668 (Delgado).) Assuming without deciding that judicial notice was properly taken in those cases, defendant is not seeking judicial notice of a discrete, arguably commonly accepted medical fact. (See 1 Witkin, Cal. Evidence (5th ed. 2012) Judicial Notice, § 35 ["Judicial notice may be taken of medical facts that are commonly known, such as the nature and location of organs and the seriousness of certain diseases."].) Rather, defendant is seeking judicial notice of broader topical information suitable, potentially, for introduction through an expert witness and tested through cross-examination. (Evid. Code, § 721; People v. Nieves (2021) 11 Cal.5th 404, 448.) On these grounds, we deny defendant's request for judicial notice of the medical articles.
In the trial court, the articles would have been subject to objection on hearsay and other grounds (Evid. Code, §§ 1200, 350, 352), underscoring how ill-suited they are for judicial notice on review.
2. Verdict Supported by Substantial Evidence of Coma
Turning to defendant's substantive claim, section 273ab does not define "comatose," but defendant cites to three cases that address parallel language in section 12022.7, subdivision (b), in the context of substantial evidence challenges, Tokash, supra, 79 Cal.App.4th 1373, Delgado, supra, 213 Cal.App.4th 660, and People v. Cunningham (2016) 244 Cal.App.4th 1049 (Cunningham). In Delgado, the Court of Appeal explained, "Under the plain language of the statute, the fact the victim suffered a brain injury is not sufficient to impose the enhancement; the victim must be rendered comatose due to the brain injury. Although it is not necessary for the victim to become comatose permanently (People v. Galvan (2008) 168 Cal.App.4th 846, 855 ['enhancement applies to comatose victims, whether the state of their coma is permanent or not'; .. . Tokash[, supra,] at p. 1378 .. . [same]), there must be evidence showing the victim was comatose at some point. The statute does not define the meaning of the term 'comatose.' One dictionary defines it as 'of, resembling, or affected with coma' (Merriam-Webster's Collegiate Dict. (11th ed. 2006) p. 246), and a coma is defined as 'profound unconsciousness caused by disease, injury, or poison.' (Ibid.)" (Delgado, supra, at p. 667, fn. omitted; accord, Cunningham, supra, 244 Cal.App.4th at p. 1054.)
Section 12022.7, subdivision (b), provides: "Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. As used in this subdivision, 'paralysis' means a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism." (Italics added.)
Defendant recognizes that "[t]he comatose state must have been directly caused by the brain injury or must have been indirectly caused by the assaultive act," but argues that "[b]ecause substantial evidence does not establish that N.C., while encephalopathic and heavily sedated, was ever, even temporarily, profoundly unconscious or 'comatose', the guilty verdict as to count one must be reversed." Further, he argues that "[e]ven if substantial evidence does support a finding that N.C. was in a comatose state, it does not establish that the state was attributable to the brain injury inflicted two days prior." We disagree with defendant that Dr. Kodali's testimony on this issue was as limited as he suggests.
During oral argument, defendant's counsel questioned the statutory language of and legislative intent underlying section 273ab, and Dr. Kodali's qualifications to opine on the issue of coma. However, these issues were not raised in the trial court and did not form the bases for legal claims advanced on appeal. (People v. Carrasco (2014) 59 Cal.4th 924, 990 ["'Obvious reasons of fairness militate against consideration of an issue raised initially' at oral argument."]; People v. Stanley (1995) 10 Cal.4th 764, 793 ["'[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.'"].) Defendant's challenge is necessarily limited to the sufficiency of the evidence supporting his conviction on count 1 and, as explained herein, the testimony of Dr. Kodali, who is a pediatrician personally involved in N.C. 's case, is sufficient to support the jury's verdict.
With respect to the Glasgow Coma Scale, Dr. Kodali testified that the scale ranges from 3 to 15, with 3 being the lower end and 15 being normal. N.C. was assessed at an 11, but Dr. Kodali explained that "the Glasgow Coma Scale is used immediately on arrival" and is "used primarily in the emergency room or by neurosurgeons or critical care doctors so they can quickly communicate to another doctor what is happening with the patient." She also explained that after the initial Glasgow Coma Scale assessment, the patient is not usually reassessed and, therefore, the absence of a later score does not indicate the patient's mental state is unchanged.
Dr. Kodali testified that comatose is not really a medical term, but it is what she meant when she used the term encephalopathic. She testified separately that N.C. was encephalopathic when she saw him in the pediatric intensive care unit two days later, and that he became nonresponsive and appeared to be in a comatose state. When the prosecutor asked if N.C. 's coma was medically induced or the result of the injuries themselves, she answered it was primarily the result of his injuries, with the medication needed to control his seizures probably adding to it. She also later explained that the seizure medicine had a sedating effect, in contrast with medication used to put someone to sleep by sedating them.
Prior to N.C. 's transportation to the hospital, M.M. described him as nonresponsive or unconscious during her call to 911 and said he was not waking up. Y.T. testified that N.C. was nonresponsive when emergency medical services arrived at the apartment, and defendant told detectives that N.C. was nonresponsive. While we do not suggest that evidence N.C. was unresponsive or would not wake up at the apartment would suffice to support a finding that he was comatose, the evidence is consistent with Dr. Kodali's testimony that N.C. decompensated following the injuries to his brain and was comatose primarily as a result of his brain injuries.
In Delgado, cited by defendant, testimony by the victim's brother that the victim "was not 'conscious' at first" did not constitute substantial evidence that the victim was rendered comatose, but in that case, the doctor also testified the victim was conscious while in the intensive care unit and refused to say the victim was in a coma. (Delgado, supra, 213 Cal.App.4th at p. 668.)
There are some inconsistencies in Dr. Kodali's testimony. For example, although she testified that N.C. was encephalopathic, or in a coma in laymen's terms, primarily as a result of his brain injuries, she also later testified that it was hard to know whether it was the medication or his injuries but due to some combination of the two, he was unresponsive. The existence of inconsistencies, however, does not undermine the jury's verdict, as "'[r]esolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact' [citation] in the 'absence of patent falsity, inherent improbability, or other reason to question [the testimony's] validity [citation].'" (People v. Gomez (2018) 6 Cal.5th 243, 281; accord, People v. Young (2005) 34 Cal.4th 1149, 1181.) Moreover, N.C. was given the medication with a sedating effect to stop his seizures, which Dr. Kodali testified were severe and were the result of the brain injuries he suffered.
In sum, Dr. Kodali described N.C. 's brain injuries, opined that they were caused by shaking that occurred within four hours of his decompensation, and described him as encephalopathic, or comatose. Further, to whatever extent the seizure medication was a contributing factor to N.C. 's comatose state, the medication was necessary to treat the severe seizures caused by his brain injuries. (See Cunningham, supra, 244 Cal.App.4th at p. 1054 [although a lay term, victim's brain injuries necessitated placement in a "'medically induced coma'"]; Tokash, supra, 79 Cal.App.4th at pp. 1377-1378 [necessity of medically induced coma sufficient to support finding the defendant inflicted GBI causing victim to become comatose].) Under these circumstances, a reasonable trier of fact could well have credited Dr. Kodali's testimony that N.C. was comatose primarily as a result of his brain injuries, which is sufficient to support the verdict in this case. (Cf. Delgado, supra, 213 Cal.App.4th at pp. 664, 668 [evidence insufficient where trauma surgeon who treated victim expressly declined to describe victim as comatose and confined himself to victim's Glasgow Coma Scale score, and there was no evidence doctors induced a coma].) Therefore, we reject defendant's contrary claim and affirm the conviction.
II. Assembly Bill 518
Finally, the trial court sentenced defendant to the mandatory term of life in prison with the possibility of parole on count 1 and stayed the aggregate 10-year term on count 2 under section 654. At the time of sentencing, former section 654 provided, in relevant part, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (Id., former subd. (a), italics added.) As amended by Assembly Bill 518, effective January 1, 2022, section 654 now provides, in relevant part, "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision." (Id., subd. (a), italics added.)
Pursuant to In re Estrada (1965) 63 Cal.2d 740 (Estrada), "[n]ewly enacted legislation lessening criminal punishment or reducing criminal liability presumptively applies to all cases not yet final on appeal at the time of the legislation's effective date." (People v. Gentile (2020) 10 Cal.5th 830, 852, citing Estrada, supra, at pp. 744-745; accord, People v. Esquivel (2021) 11 Cal.5th 671, 673 &675-676.) "This presumption 'rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.'" (People v. Gentile, supra, at p. 852; accord, People v. Esquivel, supra, at p. 675.)
The parties agree that Assembly Bill 518 applies in this nonfinal case pursuant to Estrada. However, the People dispute that remand for resentencing is required. They acknowledge that '"[defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,'" and where the defendant has been sentenced in the absence of informed discretion, "the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez); accord, People v. Flores (2020) 9 Cal.5th 371, 431-432 (Flores).) Nevertheless, they contend that based on the court's express comment regarding the vulnerability of the victim and the court's selection of the upper term for the enhancement, remand for resentencing is unnecessary.
The People attempt to analogize the record in this case to that in People v. McVey (2018) 24 Cal.App.5th 405 (McVey). In McVey, the Court of Appeal found that remand "would serve no purpose but to squander scarce judicial resources." (Id. at p. 419, citing People v. Fuhrman (1997) 16 Cal.4th 930, 946 &People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) The defendant in McVey shot a homeless man multiple times, killing the victim, and he received an aggregate sentence of 16 years 8 months. (McVey, supra, at pp. 409-410.) The Court of Appeal noted that in imposing a 10-year term for the firearm enhancement, the trial court "described [the defendant's] attitude as 'pretty haunting'" and the trial court stated, "'[T]his is as aggravated as personal use of a firearm gets,' and 'the high term of 10 years on the enhancement is the only appropriate sentence on the enhancement.'" (Id. at p. 419, fn. omitted.)
More recently, the California Supreme Court found remand unnecessary in Flores, concluding, "The record in this case demonstrates with unusual clarity that remand would be an idle act." (Flores, supra, 9 Cal.5th at p. 432, citing People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) The high court explained, "At sentencing, the trial court said, '[Q]uite frankly, based on what I know about the defendant and based on what I know the defendant did . . . I think [the defendant] does fall into the category of the worst of the worst offenders thereby deserving the ultimate sentence of death.' It 'believe[d] that in this situation the punishment does fit the crimes based on the senseless murders of four separate individuals, three being charged in the information in this case.' [The d]efendant, the court remarked, 'show[ed] absolutely no remorse'; '[i]t's as if he has no soul.' In the court's 'opinion[,] justice will be served' by a death sentence. Given that the trial court explicitly said it thought it 'just[]' for [the] defendant to receive a death sentence-the most severe sentence available under California law-it is clear the trial court would not have exercised its discretion to eliminate the firearm enhancements 'in the interest of justice,' had such discretion been available to it at the time of sentencing (Pen Code., § 12022.53, subd. (h)). Under these circumstances, a remand is not required." (Flores, supra, at p. 432, fn. omitted.)
The sentencing record in this case is not analogous to that in either Flores or McVey. A one-month old infant has no ability to defend himself or herself and is unquestionably among the most vulnerable of victims, a fact noted by the trial court in commenting that N.C. was probably the most vulnerable victim to come before the court. N.C. was also seriously injured. However, defendant was only 21 years old at the time of the crime; he had no prior criminal record, which the court noted; and the record reflects he had family support. Further, although the court imposed the upper six-year term for the GBI enhancement, as recommended by the probation officer, it did not discuss its selection of the upper term and it selected the middle term for the underlying offense. Notwithstanding the People's contrary argument, these circumstances do not amount to a clear indication that remand would be futile. (Flores, supra, 9 Cal.5th at p. 432.)
Based on the record, at the time of sentencing, N.C. fortunately appeared to be doing well and was a happy child in the care of his grandmother, but the possibility for long-term effects from his injuries remained unknown.
Defendant did not seek relief under Senate Bill No. 567 (2021-2022 Reg. Sess.) and given our determination that remand is appropriate under Assembly Bill 518, we express no view on that matter. Defendant is not precluded from raising the issue on remand.
The trial court had no discretion to sentence defendant to anything other than life in prison on count 1 and, at the time of sentencing, it had no discretion to stay the sentence under section 654. This is a sad and difficult case involving abuse against a very young infant, but nothing in "'the record "clearly indicate[s]" that the trial court would have reached the same conclusion "even if it had been aware that it had such discretion."'" (Flores, supra, 9 Cal.5th at p. 432, quoting Gutierrez, supra, 58 Cal.4th at p. 1391.) Just as the Legislature determined that a mandatory life sentence is appropriate for violation of section 273ab, subdivision (b), the Legislature also more recently determined that affording the trial court discretion to select which sentence to stay under section 654 is appropriate. In light of the ameliorative amendment to section 654 under Assembly Bill 518 and the absence of any clear indication from the record that remand would be futile, defendant is entitled to be sentenced by a court exercising discretion informed by the law as it now stands. While we express no view on how the trial court should exercise its sentencing discretion under Assembly Bill 518, remand for resentencing is the appropriate remedy in this case.
DISPOSITION
This matter is remanded for resentencing in light of Assembly Bill 518's amendment of section 654. The judgment is otherwise affirmed.
WE CONCUR: SNAUFFER, J., DeSANTOS, J.