Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara No. 1218241, George C. Eskin, Judge
Gilbert W. Lentz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, William H. Shin, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Joshua R. Guggenmos appeals the judgment entered after a jury convicted him on two counts of child abuse (Pen. Code, § 273a, subd. (a)). The jury also found true allegations that appellant personally inflicted great bodily injury in committing the offenses (§ 12022.7, subd. (d)). He contends the trial court erred in denying probation, sentencing him to nine years in state prison. We affirm.
All further undesignated statutory references are to the Penal Code.
STATEMENT OF FACTS
On February 14, 2007, appellant was living at his parents' house with his girlfriend S.B., their five-month-old son T., their two-year-old daughter, and S.B.'s five-year-old daughter. At about 4:30 p.m., appellant called B. at work and told her T. had bumped his head. B. repeatedly asked whether T. was okay, and appellant assured her that medical attention was unnecessary. When B. came home from work, however, she observed bruises on T.'s face, forehead, arm, ear and head. She also noticed that his fontanel was bulging. B. immediately took T. to the hospital, while appellant stayed home with the other children.
S.B. worked full-time while appellant stayed home with the children.
The fontanel is the soft area on the top of an infant's head, commonly referred to as the "soft spot," where there is only tissue because the skull has not yet fused together.
T. was treated in the emergency room by Dr. John Vowels. A CAT scan revealed that T. had a fractured skull and bleeding in his brain. The blood had to be drained through a needle inserted in his skull. Dr. Vowels also observed bleeding and bruising that had occurred a few days or weeks earlier. T. also had multiple bruises on his forehead and an abrasion above his left eyebrow. The doctor diagnosed T. as suffering from nonaccidental trauma, the term used to describe potential child abuse.
Santa Barbara Police Officer Douglas Klug responded to the hospital the following morning. After the officer spoke to Dr. Vowels, B., and appellant's mother, he went to appellant's house. Appellant agreed to be interviewed by Officer Klug at the police station. During the interview, appellant said he first noticed the bump on T.'s head after appellant came out of the shower. He recalled T. hitting his head when appellant placed him on his swing. He also said he had "tossed" T. into his chair, and called B. to tell her he "may have hurt our son."
The day after the incident, Detective Jaycee Hunter asked B. to make a recorded, pretext telephone call to appellant asking him what had happened. During the call, appellant said T. hit his head while swinging on his swing. He also said he put T. down on the ground hard when he changed him. He claimed he was in the shower for about 30 minutes while T.slept, and noticed the bump on his head when he came back downstairs. He later added that he had "bobbled" T. while carrying him downstairs in an infant carrier, and admitted becoming frustrated with T.'s crying.
Detective Hunter went to appellant's house and asked him to conduct a videotaped demonstration of how T. had been injured. After the demonstration, appellant was arrested and transported to the police station. Appellant gave another interview and signed a statement admitting he had forcibly placed T. on the floor and shaken him while he was in his car seat due to his frustration with the child's crying.
T. was examined by Dr. Mark Silverberg, an ophthalmologist. Based on his observation of bleeding behind T.'s eyes and bruising in his eye socket, the doctor diagnosed him with shaken baby syndrome. Dr. Silverberg also watched appellant's videotaped demonstration and concluded it was inconsistent with T.'s injuries. The same conclusions were testified to by Dr. Curtis Pickett, the medical director of the hospital's intensive care unit.
Dr. James Benzian, a radiologist who examined T.'s x-rays and CT scans, observed a linear fracture in the child's skull and two hemorrhages around his brain. Dr. Benzian opined that these injuries were caused by a significant blunt force trauma to the head.
Martha Guggenmos, appellant's mother, briefly testified on his behalf. She described T., who had been living with her since the incident, as a "[t]ypical one-year-old" who was "in perfect health." She also recalled that T. had been taken to the hospital for a viral infection in November 2006.
DISCUSSION
Appellant contends the court abused or failed to properly exercise its discretion in denying probation and sentencing him to nine years in state prison. He claims the record reflects the court's failure to consider all relevant sentencing factors, in particular rule 4.408 of the California Rules of Court, and that the court should have either granted probation, stricken the great bodily injury enhancement, or otherwise imposed a lesser sentence. He further asserts that the court's failure to consider all relevant sentencing factors amounts to a violation of his due process rights. There is no merit in any of these claims.
All further rule references are to the California Rules of Court. Rule 4.408(a) provides that "[t]he enumeration in these rules of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made. Any such additional criteria must be stated on the record by the sentencing judge."
Background
Prior to sentencing, the court referred appellant to the California Department of Corrections and Rehabilitation (CDCR) for a diagnostic evaluation of his mental health pursuant to section 1203.03. At the beginning of the sentencing hearing, the court stated it had read and considered (1) the probation officer's report; (2) the parties' sentencing memoranda; (3) the section 1203.03 diagnostic report and the accompanying sentencing recommendation prepared by the associate warden at Wasco State Prison, the facility where appellant's diagnostic evaluation was conducted; and (4) appellant's request for judicial notice. The probation officer recommended that probation be denied and that appellant be sentenced to nine years in state prison. The diagnostic report contained both a psychologist's recommendation that probation be granted, and a correctional counselor's recommendation that probation be denied. The associate warden agreed with the probation officer and correctional counselor in recommending that probation be denied. S.B. and appellant's mother Martha Guggenmos both offered testimony urging the court to grant probation.
After hearing argument, the court adopted the probation officer's recommendation and sentenced appellant to nine years in state prison. The court recognized that appellant had no criminal record and had demonstrated "profound" remorse for this actions, yet concluded, "I can't legally justify finding a basis for determining that this is an unusual case in which the interests of justice would be served by a grant of probation.... I have to make such a finding before I could consider [appellant's] candidacy for probation. This is not an unusual case. Although I will say that [appellant] has demonstrated unusual and callous behavior despite these extenuating circumstances. [¶] I think that where we have to keep the focus is on a Rule of Court that states the general objectives in sentencing. And success on probation is not one of the sentencing objectives. The psychologist at Wasco and others may feel that [appellant]... will perform well on probation, but the general objectives in sentencing don't include that. [¶] The primary focus of sentencing considerations by a Court are the nature of the crime, punishment for the crime and deterrence of others by demonstrating the consequences of this kind of behavior. In other words, the crime was so bad that even though [appellant] may do very well on probation, his conduct deserves a prison sentence so that he is punished appropriately and society can see this type of horrendous behavior will result in very serious consequences."
The court continued: "I am going to adopt the recommendation of the probation officer in this case, Mr. Ingraham. He has taken into consideration, I believe, mitigating factors. The circumstances in aggravation clearly outweigh the circumstances in mitigation and he has recommended the midterm. And I embrace the midterm. [¶] We have a choice between concurrent terms and consecutive terms with regard to the two counts. And as Mr. Ingraham has recommended, the Court will adopt a concurrent sentencing. The enhancement, alleged pursuant to Penal Code section 12022.7, subdivision (d), requires a five-year consecutive term. I do not believe the circumstances justify striking it." The court proceeded to sentence appellant to nine years in state prison, consisting of the midterm of four years on count I plus five years for the great bodily injury enhancement.
Legal Principles
Trial courts possess broad discretion to grant or deny probation, and their decisions will not be set aside unless they are unreasonable. (People v. Warner (1978) 20 Cal.3d 678, 683.) The defendant bears the burden of establishing that the denial of probation was unreasonable or arbitrary. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) "'In reviewing [a trial court's determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court's order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.' [Citation.]" (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.) To make such a showing, the defendant must demonstrate that the result "is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.) In the absence of such a showing, we must presume the court properly exercised its discretion to achieve legitimate sentencing objectives. (Id. at pp. 376-377.) Trial court rulings on a motion to strike an enhancement in the interests of justice pursuant to section 1385 are also reviewed for an abuse of discretion and will be affirmed unless the ruling is irrational or arbitrary. (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.)
Analysis
Appellant contends the court "was mistaken in the scope of its discretion" to grant probation or impose a lesser term because it "limit[ed] itself to the objectives... contained in Rule 4.410." The record belies this assertion. The court expressly stated it had read and considered the probation officer's report, the parties' multiple sentencing memoranda, and the CDCR diagnostic report, all of which contain numerous references to the aggravating and mitigating circumstances to be considered in imposing a sentence. In adopting the probation officer's recommendation, which identifies six mitigating circumstances, the court stated, "[h]e [the probation officer] has taken into consideration, I believe, mitigating factors. The circumstances in aggravation clearly outweigh the circumstances in mitigation...."
The rule identifies the general objectives of sentencing to include (1) the protection of society; (2) punishment of the defendant; (3) encouraging the defendant to comply with the law in the future and deterring him or her from committing future offenses; (4) deterring others from committing crimes; (5) isolating the defendant for the period of incarceration to prevent him or her from committing new crimes; (6) obtaining restitution for victims; and (7) the achievement of uniform sentencing. (Rule 4.410(a).)
The report lists the following mitigating circumstances: (1) appellant's lack of a prior record; (2) his willingness to comply with the terms of probation; (3) his ability to comply with the terms of probation; (4) imprisonment of appellant would negatively impact him and his dependents; (5) appellant would suffer adverse collateral consequences as a result of a felony conviction; and (6) he expressed remorse for his conduct.
Appellant nevertheless contends that the court did not consider all relevant mitigating circumstances because in sentencing him the court said it was required to "keep the focus" on the sentencing objectives provided in rule 4.410, then stated that
"success on probation is not one of the sentencing objectives." According to appellant, this comment demonstrates that the court failed to exercise its discretion to consider "additional criteria reasonably related to the decision being made," as provided in rule 4.408. We disagree.
Appellant's ability and willingness to perform well on probation were among the express criteria the probation officer (and, by extension, the trial court) considered in denying probation. (See rule 4.414(b)(3) & (4).) The statement with which appellant takes issue merely reflects the court's recognition that the general objectives in sentencing, i.e., the individual and societal goals that sentencing is theoretically designed to achieve, were of primary importance and that success on probation is not one of them. Rule 4.410(b) expressly provides that "[b]ecause in some instances [the stated] objectives may suggest inconsistent dispositions, the sentencing judge must consider which objectives are of primary importance in the particular case." In making that determination, the court "should be guided by statutory statements of policy, the criteria in these rules, and the facts and circumstances of the case." (Ibid.)
The court's reference to "focusing" on the sentencing objectives of punishment and deterrence is therefore simply an expression of its determination that those objectives are of primary importance under the facts and circumstances of the case. In other words, the remark cannot be reasonably construed as a reflection of the court's belief that appellant's potential for success on probation was not among the relevant criteria to be considered in reaching a sentencing decision, but rather was outweighed by sentencing objectives that could not be achieved if probation were granted.
The balance of appellant's brief relating to the denial of probation is essentially a list of various mitigating factors he believes the court either ignored or failed to properly consider. Because the record fails to affirmatively establish that the court did not consider any of the criteria appellant identifies, the claim fails. (Rule 4.409; People v. Weaver, supra, 149 Cal.App.4th at p. 1313.)
Appellant's attempt to establish that the court abused its discretion in denying his motion to strike the great bodily injury enhancement is similarly infirm. As appellant acknowledges, the court could not grant probation unless it either exercised its discretion to strike the great bodily injury enhancement in the interests of justice or found that the case was an unusual one in which the interests of justice would best be served if appellant were granted probation. (§ 1203, subd. (e)(3); People v. Jones (2007) 157 Cal.App.4th 1373, 1382-1383.) The record does not support appellant's assertion that the court was compelled to exercise its discretion in either regard. The probation officer's recommendation to deny probation, which the court expressly adopted, is particularly apt: "The question of sentencing in this matter is an extremely difficult one. The fact that the defendant has no prior record and reports that the victim appears to have fully recovered from his injuries are arguments for a grant of probation, as well as the needs of the defendant's wife and children. Arguments against a grant of probation include the complete and utter vulnerability of the victim, and the serious injuries he suffered. In addition, it is disappointing that the defendant initially spent several hours concocting various implausible theories about how T. could have been injured, when in fact the defendant must have known from the beginning what he had done. As there are not sufficient circumstances to overcome the presumptive prison sentence, the undersigned recommends a sentence to state prison. Whatever love and devotion the defendant may express toward his children and partner, society simply cannot tolerate such extreme victimization of its most vulnerable members. It is hoped that while the defendant is incarcerated, he will take an open and honest look at who he is and what he has done, and learn to deal with his anger and frustration in a less destructive manner."
Appellant's claim that the sentence violates his federal due process rights is forfeited because it was not raised below. (People v. Partida (2005) 37 Cal.4th 428, 435.) In any event, the claim fails in light of our conclusion that appellant's sentence was a proper exercise of the court's discretion.
The judgment is affirmed.
We concur, GILBERT, P.J., COFFEE, J.