Opinion
D074063
10-30-2018
THE PEOPLE, Plaintiff and Respondent, v. DANIEL JO HAMILTON, Defendant and Appellant.
Carl J. Fabian, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Steve Oetting, Warren J. Williams and Daniel J. Hilton, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1405592) APPEAL from a judgment of the Superior Court of Riverside County, Randall Donald White, Judge. Affirmed. Carl J. Fabian, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Steve Oetting, Warren J. Williams and Daniel J. Hilton, Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted Daniel Jo Hamilton of involuntary manslaughter, a lesser included offense of murder (Penal Code, § 192, subd. (b); count 1) and assault causing death to Hayden, a child under eight years old (§ 273ab, subd. (a); count 2). The court denied probation and sentenced Hamilton to 25 years to life on count 2 and stayed his count 1 sentence under section 654.
All statutory references are to the Penal Code.
Hamilton contends: (1) his trial counsel provided ineffective assistance by failing to impeach the prosecution's medical experts; (2) the court erroneously failed to instruct the jury on its own motion on section 273ab's lesser included offenses of assault (§ 240) and assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)); and (3) we should remand the matter for resentencing because the court misunderstood its discretion to grant him probation. We affirm the judgment.
FACTUAL BACKGROUND
Prosecution Case
In December 2013, Hamilton started dating R.H., when Hayden, R.H.'s daughter with another man, was about one month old. In February 2014, Hamilton and R.H. moved in together. By around April 20, 2014, R.H. was seven weeks pregnant with Hamilton's child.
On April 23, 2014, at around 5:15 p.m., R.H. went to the grocery store, leaving Hamilton to care for Hayden at home. At around 5:40 p.m., Hamilton telephoned R.H. and, sounding scared and panicked, said Hayden had rolled off the couch and "wasn't breathing that good." Hamilton said Hayden might have hit a soda can that was on the floor. He asked R.H. to come home immediately so they could take Hayden to the hospital. When R.H. reached home, Hayden's eyes were open, and she was silent but appeared to be breathing and looked "fine." Hayden never recovered from her injuries and she was taken off life support about nine days later.
A Riverside Police Department detective specializing in sexual assault and child abuse testified that on the day of the incident he spoke briefly with R.H. and Hamilton at the hospital. Afterwards, detectives went to the couple's apartment and ascertained that the distance from the couch to the floor, which was carpeted with padding underneath, was 19 inches.
The next day, detectives recorded their separate interviews with R.H. and Hamilton at the police station. The recordings were played for the jury. According to an interview transcript, Hamilton agreed with a detective that up to the time that R.H. went to the store, Hayden was "100 [percent] fine." While Hamilton babysat Hayden, he had to go to the bathroom that was located about 10 feet away from a couch where he placed her with pillows around her. He kept the bathroom door open to be able to hear her. However, about "three to four minutes" later, when he returned to the couch, she was on her back on the floor. Her arms were limp, her eyes were not moving, and her breathing was not "right;" rather, "it was like a gargle, making a gargle noise." Hamilton called R.H., told her what had happened, and asked her to return home immediately. He put Hayden in a car seat and R.H. drove them to the hospital in her car. On the way there, Hamilton called 911 and administered compressions to Hayden's chest.
Hamilton told a detective Hayden was not able to roll over yet: "She's more of laying on her back and trying to get her feet and play with her feet and maybe go on her side and that's about it," adding, "No actually rolling, picking herself up." A detective asked Hamilton, "If [Hayden] would have fallen off the couch at all you probably would have heard her?" He replied, "I would have heard her, absolutely." Hamilton added, "I don't understand how she got hurt and why she's hurt as bad as she is. I don't understand." When a detective expressed his disbelief that Hayden's fall could have caused her injuries, Hamilton agreed: "I don't think the fall off the couch did it either. I didn't think she was hurt. I thought she knocked the wind . . . out of herself or knocked herself out." A detective asked Hamilton if R.H. had hurt Hayden before she left for the store, and Hamilton responded, "I've never seen [her] hurt the baby. Or be mean to either one of her kids."
A detective testified he initially considered R.H. a primary suspect for causing Hayden's injuries but later eliminated her as a suspect. Detectives investigated further, and video cameras from the store and phone records corroborated R.H.'s account of her going there. A detective testified they did not investigate Hayden's prior rib fractures that were consistent with Hayden's more recent injuries because they believed Hamilton had caused them too.
Forensic pathologist Dr. Chanikarn Changsri testified she performed the autopsy on Hayden and concluded she had suffered five fractured ribs that were caused by blunt force trauma. The injuries probably occurred approximately three months earlier, as they were almost completely healed. The fractures had occurred at the same time and were caused by compression. More recently, Hayden had suffered a broken bone in the left forearm and had an acute fracture on a rib. Hayden had suffered extensive bleeding in the brain and in the scalp. Her skull was broken in two areas, one on the top right side of her head and another on the back of the head. One of the fractures was caused by multiple blows. Dr. Changsri testified Hayden's death was not accidental; rather, the cause of death was blunt force trauma to the head, and the manner of death was homicide.
On cross-examination, defense counsel asked Dr. Changsri if she knew what specific object caused Hayden's injuries, and whether they likely were caused by a soda can. Dr. Changsri answered both questions in the negative. She testified Hayden's head injuries could have been caused by forceful contact with a hammer, a wall, or a door. Dr. Changsri excluded the possibility Hayden had died from being shaken.
Dr. Clare Sheridan-Matney, a forensic pediatrician specializing in child abuse and neglect evaluations, concluded Hayden had three fractured ribs that were in the last stage of healing. She also determined Hayden had suffered more recent fractured ribs and she had blood and bruising in the lung. She ruled out that Hayden's injuries were accidental or resulted from a couch fall. Instead, Dr. Sheridan-Matney agreed with the prosecutor that the arm injury could have been caused "if somebody was picking a baby up out of the bassinet, grabs her and just tosses her to the side, bending her arm[.]" Dr. Sheridan-Matney added, "You have to have—exceed the ability of the bone to withstand the trauma, so it's probably quite a fast movement." She concluded, "[T]here really isn't an impact that will fracture three lateral ribs in a tiny baby—without any major history like a car crash or something. So, therefore, that tells me that Hayden's ribs were broken by somebody, most probably by squeezing." Dr. Sheridan-Matney found it significant that both R.H. and Hamilton had reported that Hayden "apparently had a good day and the mom fed [Hayden] two ounces of formula and a strawberry yogurt before she went to the store, so that tells me that [Hayden] did not have a major head injury at that time." Dr. Sheridan-Matney explained: "[Y]ou can't have a lethal head injury and behave normally. It's as simple as that. You know, you can't be sucking and swallowing and doing coordinative activities. Never mind the pain you would get from just the fracture."
Dr. Sheridan-Matney concluded Hayden had suffered significant head injuries that were "consistent with blunt force trauma," and not caused by a fall from a couch. She elaborated: "[W]hen we're doing these evaluations we look at the totality of the case, and, basically, one fall is one impact; right? But here there's at least two impacts, so that's not consistent . . . . [¶] The other part of it is that this is such a major fracture that it requires a high degree of force, and a two-foot fall does not generate enough force to do that. I mean, it's very common that babies fall off sofas. People are always leaving them on the sofa and they're always falling off. [¶] . . . [T]his whole episode has to be enough to cause a global brain damage. [Hayden] didn't die just because she has a fracture. She died because of brain injury." Dr. Sheridan-Matney concluded Hayden was physically abused because she had "at least two skull fractures or two impacts, anyway, and then she's got a broken arm, and she has multiple healing rib fractures, and then she also has a fresh fracture on her rib."
Dr. Sheridan-Matney testified that Hamilton's description of finding Hayden not breathing properly and making gurgling sounds were expected symptoms from Hayden having suffered blunt force trauma: "Well, after the impact [Hayden would be] symptomatic right away. I mean, she would take a gasp and maybe cry. It would take a few minutes for everything to be observable. . . . [I]t's not coordinated breathing. It's a different type of breathing. It's called agonal breathing. . . . [T]hat would kick in after a couple of minutes."
Defense Case
Hamilton's sister, A.S., testified she knew R.H. from childhood but it was "hard to stay friends with somebody that was so untrustworthy and a manipulator. [R.H.] would lie constantly about everything." A.S. testified that while at the hospital in the days before Hayden died, she never saw R.H. become emotional or touch or interact with Hayden. Rather, R.H. spent much time on social media and chatting with her family and friends. A.S. testified R.H. did not express emotions while reading Hayden's graphic autopsy report. A.S. once saw R.H. administer as much as two milliliters of Advil to Hayden despite A.S.'s protest. R.H. told A.S. it was the only way to make Hayden stop crying.
Hamilton's sister, C.H., also testified she knew R.H from childhood: "You could always tell that you can't really trust [R.H.] because she is a very good storyteller. She always makes herself look better." C.H. saw R.H. shake Hayden's car seat on multiple occasions, and once excessively so, as R.H. told Hayden, "[S]hut up, just shut up." C.H. said that every time Hayden went to R.H.'s mother's house, Hayden "would come back hurt" with black eyes, bite marks, and red marks from being hit. C.H. never saw R.H. take Hayden to the doctor for those injuries.
Hamilton's mother, K.H., testified R.H. became like a daughter to her. K.H. saw bite marks on Hayden's arm, and asked R.H. about them. R.H. said her sister had bitten Hayden. R.H. ignored K.H.'s advice to take Hayden to the hospital. K.H. recounted that in February 2014, following an argument with Hamilton at K.H.'s house, R.H. became upset and left the house with Hayden in the car seat, which hit against the door frame. R.H. tossed the car seat in the car without securing Hayden's seatbelt and said, "I'm going to kill me and the baby, I'm going to run us off the riverbed." R.H. returned to the house within 30 minutes, left Hayden in her car seat on the porch, and drove off hastily. Hayden was screaming hysterically. K.H. said R.H. lacked patience with Hayden, and R.H. was jealous of Hamilton's good relationship with Hayden. On cross-examination, K.H. admitted she never reported these claims to law enforcement officials, explaining R.H. had threatened to "kill the baby that I have in the belly that is your grandson."
S.D., who dated R.H. briefly, testified he met her when she was approximately four months pregnant with Hayden. They developed a romantic relationship and she moved into his apartment approximately a month after they met. R.H.'s mother and sister also moved into S.D.'s apartment. R.H. was not working or contributing financially to the household. R.H. did not want to keep the baby; however, her mother had convinced her otherwise. R.H. also initially told S.D. that Hayden's father did not want anything to do with Hayden. Later, she told him she did not know exactly who Hayden's father was. Perceiving that R.H. was using him, S.D. ended the relationship and R.H. moved out of his apartment.
R.C., a private investigator, reviewed the discovery in this case, interviewed various witnesses, and concluded that the police investigation of Hayden's death was inadequate; specifically, it was unclear where she experienced her preexisting injuries. R.C. testified both R.H. and Hamilton should have been arrested initially.
Dr. Martin Williams, a forensic psychologist, testified as an expert that Hamilton had made "false admissions," which he defined as statements made in a legal context that go against one's penal interests: "People confess to crimes or admit to crimes that they did not do." Defense counsel asked Dr. Williams if his review of the record disclosed "any information which could lead one to believe that the fatal injury suffered by [Hayden] could not be caused by a fall off the couch[.]" Dr. Williams replied: "Yes. There were numerous pages of medical reports and explanations saying that the child had sustained injuries, I think, not older than injuries that preceded the fall and also injuries that could not be explained by that fall, so the medical findings and conclusions make clear that the story that Mr. Hamilton told was a false admission." In explaining Hamilton's decision to make that statement, Dr. Williams stated: "One possible theory is that [R.H.], his partner at the time and who was pregnant with his child at the time, one possibility is that Mr. Hamilton did this to save [R.H.] from going to prison if, indeed, she's the guilty party, and this way she gets to stay out, free, and raise his child."
On Dr. Williams's cross-examination, this exchange occurred:
"[Prosecutor:] How do you know [Hamilton's testimony] was false?
"[Dr. Williams:] Oh. Just as I said earlier, the description of how the baby got the injuries was found by the medical reports to be impossible.
"[Prosecutor:] So, in your professional opinion, the defendant lied.
"[Dr. Williams:] Right.
"[Prosecutor:] Okay. It's—because it's not possible, in your opinion, that—based on the medical evidence, that it could have happened the way [Hamilton] said.
"[Dr. Williams:] Right."
The prosecutor asked Dr. Williams, "[H]ow does a false confession work if you're not actually taking responsibility?" Dr. Williams replied: "Well, it's trying to have the best of both worlds; take the heat off of his partner, who was pregnant with his child at the time, so that the partner and the child could grow up free, and at the same time, not take responsibility for the crime, just come up with a story to protect the partner and hoping that it works out for both of them."
Defense Counsel's Closing Arguments
Defense counsel argued the police investigation was inadequate: "[A detective] testified when I asked her, well, we've heard about these preexisting injuries, and you'd want to get the bad guy, so to speak, as to who committed and caused those preexisting injuries. And you understand that we're talking about the fractured ribs and everything else that was in the healing stage. Wouldn't you want to get the perpetrator that did that? Well, defendant did it. How do you know that? Did you do any investigation? Did you do any follow up? Did you go check it out? Did you—anything? What'd she say? What was that word? Nothing. What did you do to determine the cause or source of those preexisting injuries? Nothing. Counsel asked her, why not? Well, the similarities, of course. What does that mean, similarities? A fracture is a fracture? I call that a rush to judgment. I call that a rush to judgment."
Defense counsel pointed to the lack of physical evidence in this case: "What evidence do we have, I asked [a detective]. What evidence do we have to link Mr. Hamilton to this offense? We've got photographs. We've got a picture of a couch. Remember that? Okay. How about physical evidence, do we have any physical evidence? What's that? Well, you know, like samples of hair or skin or blood or DNA or body floods or anything. An impact that forceful must leave some impression somewhere. You have an armed, uniformed officer at the scene, bingo-bango [sic] to secure the scene. Make sure nobody comes and goes to preserve the evidence. We go inside with ID techs, investigators, uniformed officers. We combed that residence. What did we find? Zip. Nada. Zilch. Nothing. I'm thinking, how can that be? On the one hand, we have this physical violence, this physical force, this impact that is beyond imagination and belief. And, on the other hand, there's no trace of anything in there. Did it happen here? I don't know. I don't know. It doesn't look like a crime scene. Nothing broken. Nothing dented. Nothing damaged. There's no trace of anything. House looked well-kept."
Defense counsel argued no evidence showed Hamilton was responsible for Hayden's earlier injuries: "Based on the timeline of Hayden's brief life, the defendant would not have had—at least, there's nothing we've seen in evidence—I can't think of anything—which he would have exposure and opportunity to inflict any of those injuries, those painful injuries that I'm talking about, the preexisting injuries. And it's important because Detective Cobb made the assumption, well, if he did this one, he must have done those. Well, let's look at it the other way. Whoever done [sic] those preexisting injuries must have done the fatal injury. Makes just as much sense, doesn't it?"
Defense counsel conceded that for a while Hamilton shared a home with R.H. and Hayden, but he argued: "When was he alone with that child? Well, he went to work every day, got home late, had a mouthful of other kids to feed. Go to the gym at night. No. Defies—defies logic. Defies reasonableness." Defense counsel shifted the blame to R.H: "But [she] certainly was alone with that child. Matter of fact, seems that she may have had a temper issue, anger management issue, slamming the baby in that car seat around through the house, banging her back and forth, probably not causing these significant injuries at that time. Probably not, but somebody that does that to could they have, perhaps, acted likewise in another situation in which those injuries also occurred? She talked about killing herself and throwing the kid in the back seat of the car without securing her and driving off. It doesn't sound like—well, as Madam Prosecutor put it, like she deserved mother of the year award. That's for sure."
Defense counsel in closing arguments raised "this critical question[:] What time did this incident occur?" He elaborated: "We saw some video this morning purporting to show [R.H. at the store] at a particular time. Okay. I can accept that at some time [she was there]. How long she was there, I don't know. Video inside. What about video exiting or leaving? I don't know. Didn't see that. But the point is, within all of this April 23rd date, when did the incident occur, and did [R.H.] go to the store before the incident? Did she go during the incident? Did she go after the incident? I don't know because we don't know what time the incident occurred."
Defense counsel referred to Hayden's other injuries: "What do we find when [R.H.] brings [Hayden] home? Black eye, swollen lip, several bite marks, whatever else. Fracture rib? I don't know. Timing's sure right. And it's not on Mr. Hamilton's watch. And if those injuries are consistent, as Detective Cobb said, and it's not on his watch, then what does it do to our proof beyond a reasonable doubt as to the charged offense that the prosecutor wants to highlight? Does that cause any questions?"
Defense counsel challenged R.H.'s testimony that while Hamilton was incarcerated she maintained contact with him because she wanted their son to know his father: "What kind of mother would allow her son to be exposed to the murderer of her daughter? Who would do that? Just doesn't make sense, does it? " Counsel argued that in her letters to Hamilton, R.H. referred to herself 98 percent of the time.
Defense counsel suggested that R.H. and Hamilton had agreed for Hamilton to assume responsibility for Hayden's death. He quoted R.H. stating in a letter to Hamilton: "Our family will be complete when you come home." He argued: "What is it that [R.H.] knows that we don't? What's the true story of her involvement with the treatment made or imparted or given upon this poor child? What has [R.H.] done?" Counsel added, "Sounds to me like [R.H.] is maintaining, and working hard at it, a relationship of favor with Mr. Hamilton taking the fall, taking the hit, not saying anything else."
DISCUSSION
I. Ineffective Assistance of Counsel Claim
Hamilton contends that because trial counsel failed to rebut the testimony of the prosecution's medical experts, he provided ineffective assistance under the state and federal Constitutions. Hamilton specifically argues defense counsel could have impeached Dr. Sheridan-Matney's trial testimony with her testimony in other cases involving child abuse injuries, and with studies challenging the validity of an abusive head trauma diagnosis. Hamilton also argues trial counsel failed to introduce evidence of scientific studies challenging the diagnosis of abusive head trauma. He explains trial counsel's failures were prejudicial as the case was close; therefore, "[i]n the absence of contradictory evidence, the jury was essentially forced into the conclusion that [his] actions, which were not clearly established by any of the evidence, led to Hayden's death." Hamilton claims "[t]he evidence against [R.H.] was so damning, even the prosecution was forced to concede [she] was not a suitable person to be a caregiver for an infant."
We decline Hamilton's request to take judicial notice of People v. McGee (April 16, 2015, G050402) [nonpub. opn.]), an unpublished case in which Sheridan-Matney testified about shaken baby syndrome. That case is not relevant for our resolution of this case.
All defendants in criminal proceedings have a constitutional right to effective assistance of counsel. (Gideon v. Wainwright (1963) 372 U.S. 335.) To establish ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient such that it "fell below an objective standard of reasonableness" and that the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692.) To show prejudice, a defendant must establish by a reasonable probability that if counsel's performance was not deficient, he would have received a more favorable result. (Id. at p. 694.) In considering a claim of ineffective assistance of counsel, it is not necessary to determine " 'whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.' " (In re Fields (1990) 51 Cal.3d 1063, 1079, quoting Strickland, at p. 697.) "In general, reviewing courts defer to trial counsel's tactical decisions in assessing a claim of ineffective assistance, and the burden rests on the defendant to show that counsel's conduct falls outside the wide range of competent representation. [Citations.] In order to prevail on such a claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission." (People v. Ray (1996) 13 Cal.4th 313, 349.)
We conclude Hamilton has not met his burden of showing his trial counsel's conduct falls outside the wide range of competent representation. As set forth in detail above, defense counsel's rational tactic was to suggest that R.H. caused Hayden's fatal injuries. Accordingly, he elected to present expert testimony regarding false confessions. Moreover, he argued to the jury that the police investigation was inadequate, there was a lack of physical evidence, unanswered questions remained regarding the timeline of R.H.'s activities on the day Hayden suffered her fatal injuries, and R.H. and Hamilton likely agreed to let Hamilton take responsibility for the crimes. On this record, it would have been counterproductive for defense counsel to simultaneously argue R.H. could have caused Hayden's injuries and attack the medical experts' testimony regarding how those injuries were caused. Considering defense counsel's rational trial tactic, we reject Hamilton's claim that his trial counsel provided ineffective assistance of counsel by failing to challenge the medical doctors' testimony.
II. Instructional Error Claim
Hamilton contends the court erred by failing to instruct the jury on its own motion on assault (§ 240) and assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)), which are lesser included offenses of section 273ab. He argues: "Had the jury been properly instructed on lesser offense theories, it is reasonably probable the jury would have found [Hamilton] inflicted some harm, but that harm was not the cause of Hayden's death. Hayden had injuries that were current but not life threatening, such as a broken 11th rib and a buckle fracture of her arm. [¶] Under that scenario, the jury could have found appellant guilty of either one of the two lesser included offenses for causing some harm to Hayden, but not her death." In arguing the error was not harmless, he states that "from the prosecution's own case there was evidence from which a reasonable juror could have concluded [he] was guilty of the lesser (assault, aggravated battery) offenses. The jury could have relied on either the older or the more recent injuries for this finding. [¶] The jury could have likewise concluded Hayden's head injuries were caused by being repeatedly shaken by [R.H.] Evidence at trial showed [R.H.] had vigorously shook [sic] Hayden the day before she was taken to the hospital."
A court is required to instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial. (People v. Moon (2005) 37 Cal.4th 1, 25.) The obligation extends to lesser included offenses if the evidence "raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense." (Ibid.) "An offense is necessarily included in a greater offense when, for present purposes, under the statutory definition of the offenses the greater offense cannot be committed without necessarily committing the lesser." (People v. Basuta (2001) 94 Cal.app.4th 370, 392.)
In determining whether the trial court erred in not giving a lesser included offense instruction we consider whether substantial evidence supports a verdict for the lesser included offense. (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1367.) We review independently the question of whether the trial court failed to instruct on a lesser included offense. (People v. Avila (2009) 46 Cal.4th 680, 705.)
Simple assault under section 240 is a lesser included offence of child assault homicide under section 273ab. (People v. Wyatt (2012) 55 Cal.4th 694, 698.) Aggravated assault under section 245 is also a lesser included offense of section 273ab (People v. Basuta, supra, 94 Cal.App.4th at p. 392.)
No substantial evidence supported these instructions regarding the lesser included offenses. No evidence showed Hamilton assaulted Hayden but without inflicting her fatal injuries. Hamilton denied inflicting Hayden's fatal injuries, claiming only that Hayden fell while she was in his exclusive care. But Hamilton's own expert concluded that Hamilton had deliberately lied about that issue. Both medical doctors testified regarding the causes and effects of Hayden's injuries and concluded they were not accidental but rather were caused by blunt force trauma shortly before she was taken to the hospital. One of the doctors pointed out that R.H. had indicated Hayden ate without trouble before R.H. went to the store. Therefore, the weight of the evidence showed that in the approximately 25 minutes when R.H. went to the store, Hayden did not merely suffer an assault. Instead, she suffered fatal injuries caused by blunt force trauma.
III. Claim of Sentencing Error
Hamilton contends he was statutorily eligible for probation, but the court did not know his correct legal status and was therefore unable to exercise its informed discretion on whether to grant him probation. He therefore argues we must remand this matter for a new sentencing hearing.
The People concede the probation department erroneously concluded Hamilton was ineligible for probation; however, they argue that no remand is necessary because the trial court did not rely on the presumption of ineligibility in denying probation.
A first probation report stated: "Statutory provisions limiting or prohibiting a grant of probation in this matter do not exist." It next lists probation suitability criteria under Rules of Court rule 4.414(b).
A modified probation report issued the next day stated: "Pursuant to the provisions of [] section 1203[, subdivision] (e)(3), the defendant is ineligible for a grant of probation unless an unusual case can be found, in that the defendant willfully inflicted great bodily injury in the perpetration of the crime." It adds: "A review of the facts or circumstances demonstrating the existence of an unusual case does not indicate this is an unusual case, in that no criteria of the Judicial Council Rules apply." The probation report next lists circumstances in aggravation under California Rules of Court, rule 4.421 and circumstances in mitigation under California Rules of Court, rule 4.423.
At the August 26, 2016 sentencing hearing, the court stated: "I do intend to follow the probation officer's report." The court denied probation without further explanation.
We review a trial court's decision to grant or deny probation under the deferential abuse of discretion standard. (People v. Ferguson (2011) 194 Cal.App.4th 1070, 1091.) We generally do not disturb a sentencing determination unless the appellant demonstrates that the trial court exercised its discretion in an arbitrary or capricious fashion. (People v. Edwards (1976) 18 Cal.3d 796, 807.)
A defendant is presumptively ineligible for probation under section 1203, subdivision (e)(3) if he or she "willfully inflicted great bodily injury or torture in the perpetration of the crime[.]" This court in People v. Lewis (2004) 120 Cal.App.4th 837, stated that the word "willfully" in that section of the statute "requires the defendant's intent to cause great bodily injury or torture, not merely that the crime resulted in great bodily injury or torture." (Id. at p. 853.) We concluded: "It seems to have been assumed by both parties, the probation officer and the trial court [that] appellant was presumptively ineligible for probation. The trial court was not asked to find and did not state on the record appellant intended to inflict great bodily injury on [the victim.] Only if the trial court finds that appellant intended to inflict great bodily injury on [the victim] would appellant be presumptively ineligible for probation under section 1203, subdivision (e)(3). Given the serious nature of the offense, the lack of clarity in the law on this issue before this opinion and the importance of a clear record, we remand for the trial court for a new probation and sentencing hearing at which the court should determine whether appellant is presumptively ineligible for probation." (Lewis, supra, at p. 854.).
A court is "presumed to have been aware of and followed the applicable law" when imposing a sentence. (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) Therefore, the burden is on Hamilton to demonstrate that the court misunderstood its sentencing discretion. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523.)
We conclude that "in light of the presumption on a silent record that the trial court is aware of the applicable law, including statutory discretion at sentencing, we cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of that discretion." (People v. Gutierrez (2009) 174 Cal.App.4th 515, 527.) We must presume the court carried out its official duties correctly with full regard for the law regarding probation as set forth in the California Rules of Court, and in this specific case, our conclusion in People v. Lewis, supra, 120 Cal.App.4th 837. No evidence shows the court was unaware of its discretion to grant probation or was otherwise inclined to grant Hamilton probation.
In any event, "Where sentencing error involves the failure to state reasons for making a particular sentencing choice . . . reviewing courts have consistently declined to remand cases where doing so would be an idle act that exalts form over substance because it is not reasonably probable the court would impose a different sentence." (People v. Coelho (2001) 89 Cal.App.4th 861, 889; see also People v. Blessing (1979) 94 Cal.App.3d 835, 838-839 [no remand necessary solely for a recital of reasons where record supported court's sentence choice].) Based on the record in this case, although the court did not explain its reasons for denying probation, it is not reasonably probable that the court's sentencing choice would be different on remand, as there is no evidence to support a finding that circumstances existed to justify a grant of probation. Resentencing is not required.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: HALLER, Acting P. J. IRION, J.