Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F05901163-6, David Gottlieb, Judge.
Grace Lidia Suarez, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Gomes, J. and Kane, J.
INTRODUCTION
Appellant Ramon Jose Curiel contends the trial court violated his Sixth Amendment rights when it sentenced him to the upper term of imprisonment. Applying People v. French (2008) 43 Cal.4th 36 (French), we conclude (1) Curiel has not forfeited his right to raise this issue, and (2) the upper term properly was imposed.
FACTUAL AND PROCEDURAL SUMMARY
Twenty-one year old Curiel was babysitting his girlfriend’s one-year-old son while she was at work. The child had no physical or mental disabilities at that time. Curiel inflicted severe injuries on the child, primarily to the child’s head. The injuries left the child with permanent brain damage and other physical disabilities, including paralysis of his right arm and leg. He is unable to walk or talk; he is able to crawl, using his left arm and leg and dragging his right side. He also suffers seizures.
Curiel pled guilty to the offense and enhancement charged, specifically, one count of felony child abuse (Pen. Code, § 273a, subd. (a)) and admitted that he personally inflicted great bodily injury on a child under the age of five years (§ 12022.7, subd. (d)) in exchange for an indicated sentence of six years. At the time he entered his plea, Curiel stipulated that the police reports provided a factual basis for the plea.
All further statutory references are to the Penal Code unless otherwise specified.
Subsequently, the trial court notified the parties that it would not accept the plea agreement with a sentencing lid of six years. The trial court offered Curiel an opportunity to withdraw his plea. He declined to withdraw his guilty plea, even after the trial court notified him that he could be sentenced to a maximum of 12 years in prison and that the court intended to impose a sentence of at least 10 years in state prison.
At the sentencing hearing, the People argued that Curiel should receive an aggravated sentence because of his increasing criminality. At the time of sentencing, Curiel was 22 years old and had an extensive criminal record consisting of juvenile adjudications for burglary, possession of controlled substances, auto theft, arson, and violation of probation.
In pronouncing sentence, the trial court stated, “the Court certainly can consider Mr. Curiel’s prior criminal history as an aggravating circumstance.” The trial court further noted, “Based upon all the medical information and other information that the Court has reviewed, those actions must have been of a severe nature.” Additionally, the trial court stated, “you can’t get more severe in terms of the nature of the injury that was caused here.” The trial court also considered Curiel’s relatively young age at the time of the offense. The trial court imposed the middle term on the underlying offense and imposed the six-year upper term for the enhancement.
The total term imposed was 10 years.
DISCUSSION
Curiel contends his Sixth Amendment rights were violated when the trial court imposed the aggravated term. The aggravated term was imposed for the section 12022.7, subdivision (d) enhancement, but the middle term was imposed on the underlying offense.
The People contend Curiel has forfeited this contention and, alternatively, the sentence imposed complies with constitutional requirements.
The California Supreme Court recently decided French, supra, 43 Cal.4th 36. The court in French held that a defendant who pled guilty need not obtain a certificate of probable cause before filing an appeal of his or her sentence challenging imposition of the upper term. (Id. at p. 45.) French also held that failure to object at the time of sentencing did not forfeit the claim if it was based on a constitutional right to trial by jury. (Id. at p. 47.)
In French, the upper term had been imposed on the underlying offense, not an enhancement. (French, supra, 43 Cal.4th at p. 43.) For purposes of this appeal we will assume, without deciding, that the principles set forth in French are equally applicable to imposition of the upper term on an enhancement. Therefore, we reject the People’s position that Curiel has forfeited this contention and conclude that Curiel may raise this claim in this appeal.
Having concluded Curiel properly has asserted this contention on appeal, we turn now to the merits of his claim. Curiel contends the trial court based its decision to impose the upper term on the seriousness of the child’s injuries, facts which were not proven beyond a reasonable doubt or admitted by him.
The factors warranting imposition of an aggravated sentence are numerous and are set forth in California Rules of Court, rule 4.421. Rule 4.421(b)(2) provides that an aggravated sentence may be imposed when the defendant’s sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness. Here, the record demonstrates that Curiel had numerous sustained petitions as a juvenile, including burglary and arson. Curiel’s prior record also established that he had an unsatisfactory record of performance on probation in that he had violated probation. Rule 4.421(b)(5) states that the defendant’s prior unsatisfactory performance on probation or parole is a basis for imposing an aggravated term.
All further rule references are to the California Rules of Court unless otherwise noted.
Under Cunningham v. California (2007) 549 U.S. 270, the fact of a prior conviction is an exception to the requirement that aggravating circumstances must be found true by a jury or admitted by the defendant. Curiel’s prior sustained juvenile petitions and unsatisfactory performance on probation were sufficient to warrant imposition of the upper term. (People v. Black (2007) 41 Cal.4th 799, 819-820 (Black).)
Curiel’s prior criminal record was established consistent with Sixth Amendment principles; therefore, the trial court’s reference to any other aggravating factors is irrelevant. (Black, supra, 41 Cal.4th at p. 813.) A single aggravating factor is sufficient to support imposition of the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.)
Furthermore, in Washington v. Recuenco (2006) 548 U.S. 212 [126 S.Ct. 2546], the United States Supreme Court made clear that the denial of a Sixth Amendment right to a jury trial on sentencing factors was subject to harmless error analysis. (Id. at p. ___ [126 S.Ct. at p. 2553].) The failure to submit a sentencing factor to a jury may be found harmless if the evidence supporting that factor is overwhelming and there is no evidence that could lead to a contrary finding. (French, supra, 43 Cal.4th at p. 53.)
When a defendant pleads guilty, a prejudice assessment may be problematic because the record generally does not contain a full presentation of evidence. (French, supra, 43 Cal.4th at p. 53.) A sentencing hearing does not require an evidentiary proceeding and any evidence presented at a sentencing hearing is subject to a preponderance of the evidence standard of proof, not a standard of beyond a reasonable doubt. (Ibid.)
Even if the trial court had relied on factors other than Curiel’s prior record in imposing the aggravated term, there was overwhelming evidence supporting other factors that warranted imposition of an aggravated term. When entering his plea, Curiel stipulated to the facts as presented in the police reports as the factual basis for the plea. Those facts included that the victim was one year old; the victim had been entrusted to Curiel’s care while the child’s mother was in school; and Curiel was the only person with the victim at the time the injuries occurred. The police reports also included statements from the physicians indicating that the injuries to the child were due to nonaccidental trauma, including shaking and impact; the trauma was causing the victim to suffer seizures; the victim’s brain was swollen; and the victim had suffered subdermal hematoma and retinal hemorrhaging. Factors warranting an aggravated sentence include that the victim was particularly vulnerable and that the defendant took advantage of a position of trust. (Rule 4.421(a)(3), (11).) Here, it is undisputed that the victim, at one year of age, was particularly vulnerable. It also is undisputed that the victim’s mother had entrusted Curiel with the care of this child.
Additionally, rule 4.421(a)(1) provides that the aggravated term may be imposed when the acts disclose a high degree of viciousness, callousness, or cruelty. It was apparent from the police report that the injuries the victim received were potentially fatal, thus establishing that the victim had been viciously beaten. It also was apparent from that report that Curiel reacted somewhat callously to the child’s injuries. Curiel initially and repeatedly claimed the child received the injuries accidentally and claimed he would not have been charged if he had been the child’s father, instead of the mother’s boyfriend.
On the record before us, there appears no violation of Curiel’s Sixth Amendment rights. Furthermore, if any violation occurred, it was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.