Opinion
Super. Ct. No. CM026462
NOT TO BE PUBLISHED
SIMS, Acting P.J.
Defendant Lisa Ann Maroney entered guilty pleas to two counts of inflicting corporal injury on a child (Pen. Code, § 273d, subd. (a)), and one count of felony dissuading a witness (§ 136.1, subd. (c)(1)). The court sentenced defendant to 10 years and four months in state prison and imposed various fines and fees.
Undesignated statutory references are to the Penal Code.
As part of the plea agreement, the court dismissed two counts of criminal threats (§ 422) and single counts of corporal injury to a child and dissuading a witness on the People’s motion, all subject to a waiver under People v. Harvey (1979) 25 Cal.3d 754.
On appeal, defendant contends: 1) the court abused its discretion in denying her application for probation; 2) her upper term for corporal injury to a child was an abuse of discretion; 3) the upper term and consecutive sentences violated her rights to jury trial and due process; and 4) assessments and fees were improperly imposed on a restitution fine. We shall strike a child abuse restitution fine (§ 294, subd. (a)), strike several fees and assessments associated with that fine, order corrections to the abstract, and otherwise affirm.
BACKGROUND
The facts of defendant’s crimes are taken from the probation report.
L. M., her twin sister R. M., their mother D. R., defendant, her boyfriend C. P., defendant’s daughter R., and the three children defendant had by C. P. lived together in a three bedroom mobile home. L. M. viewed C. P. as her father, defendant like a second mother, and all of the other children as her siblings.
Defendant, D. R. and C. P. frequently physically abused L. M., R. M. and R. Defendant often punished R. One time defendant, who weighed over 300 pounds at the time of her guilty plea, sat on top of R. while hitting her with a coat hanger.
After L. M. once forgot to take defendant’s soda out of the freezer, defendant accused her of wasting the soda and threw the frozen bottle at L. M., hitting her wrist and making it feel as if it were broken. When L. M. accidentally stepped on a puppy’s foot, defendant pushed her to the ground, stomped on her legs, and asked how it felt. L. M. told a social worker her legs hurt badly and it was hard to walk after this incident.
Once after L. M. was bathing defendant’s boys and forgot to drain the water, defendant got mad and told L. M. to get in the tub. She grabbed L. M. by the back of her head and pushed her head under water, while yelling the boys could have drowned. L. M., who could not breathe, pushed herself out of the water. Defendant pushed her back down, but L. M. swung her arm, hitting defendant and breaking free. Defendant, now angrier, called for C. P., who put his hands around L. M.’s throat and said, “Have you ever seen your life flash before your face?” As C. P. squeezed tighter, L. M. saw lights flashing. He told L. M. not to hit defendant again, or he would not stop the next time.
Defendant and C. P. would spank R. M., L. M., and R. with belts, wooden spoons, spatulas, and anything else that was handy. The girls would often get in trouble for trivial matters, such as not playing with the dog long enough or not finishing the dishes on time. Defendant and C. P. allowed them to eat only Top Ramen noodles, and the girls knew they were in trouble when there was a lot of hot sauce in the noodles.
Defendant and C. P. once told R. M. to put a leash on the family dog and go play with it. Defendant then got mad and started down the stairs, but slipped and fell on her stomach. Defendant miscarried, and told R. M. it was her fault the baby was dead. D. R. learned of the incident and severely beat R. M.
Defendant and C. P. taped R. to a toilet and took turns hitting her with a paddle. Defendant would hit her with wood and belts, and watched as C. P. taped R. to a toilet and hit her with a rope.
Defendant would squeeze R.’s breasts very tightly, causing big bruises. She initially refrained from disclosing the bruises because defendant and C. P. told her “not to say anything about what happens in the house. Keep your mouth shut or . . . you’ll get hot sauce in your food.”
C. P., D. R., and defendant informed L. M. not to disclose what happened in the house. Defendant told L. M. and R. M. that she would “kill” them and bury them near their house if they ever told. C. P. told the girls “if we ever went to the cops he was going to cut us up into little pieces and shove us into the walls where they could never find us.” Defendant said to them “whatever is said in the house stays in the house” and if they ever told anything, defendant would have C. P. take them into the bathroom and spank them.
D. R. and C. P. frequently sexually abused the girls. C. P. would also viciously beat the girls, taking them into the bathroom, pulling down their pants, and whipping them with a belt or other instrument until they bled. He would spank them until they stopped screaming or moving, “ten to twenty times, if not more.”
C. P. sometimes shot BB guns at the girls when they were outside or would chase them out of the house with a BB gun. Both defendant and D. R. knew about this and laughed. Defendant also knew about at least some of the sexual abuse of the girls.
When interviewed by the police, defendant denied abusing the children or knowing they had been molested. In a letter to the court requesting probation, she expressed remorse for inflicting her “anger management problem” on the girls.
L. M. indicated the sexual abuse started to occur every day when she was about 13. R. M. said C. P. started having sex with her when she was nine. R. was 11 when interviewed by a Child Abuse Response team on March 7, 2007.
I
Defendant asked the court to be placed on probation. Denying the request, the court invoked the “Nature, serious[ness], and circumstances of the crime, the vulnerability of the victims and the degree of harm or loss to the victims, the defendant was armed with or used weapons, defendant inflicted bodily injury and allowed others to do so to the children, the defendant planned and was an active participant in the crimes.” The court also declared that any one of the factors would justify denying probation.
Defendant contends this was an abuse of discretion as the court did not address the factors favoring probation, and the majority of the aggravating factors cited by the court were impermissible elements of the offense. Her point is not well taken.
We begin by recognizing defendant has forfeited her claim by not objecting to the reasons given for the denial of probation. (People v. Scott (1994) 9 Cal.4th 331, 353.) Defendant argues the failure to object constitutes ineffective assistance of counsel.
In order to find defendant suffered prejudicial ineffective assistance of counsel, defendant must show: (1) counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms, and (2) absent counsel’s error, it is reasonably probable that the result would have been more favorable to him. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) Defendant’s argument fails because it is clear counsel’s performance was not deficient, since there were no valid grounds for objecting to the court’s refusal to grant probation.
“The trial court enjoys broad discretion in determining whether a defendant is suitable for probation.” (People v. Lai (2006) 138 Cal.App.4th 1227, 1256.) “To establish abuse, the defendant must show that, under the circumstances, the denial of probation was arbitrary or capricious. [Citations.] A decision denying probation will be reversed only on a showing of abuse of discretion. [Citation.]” (Id. at p. 1257.)
When the underlying offense by its nature presumes a vulnerable victim, care must be taken to separate the elements of the offense from the vulnerability of the victim aggravating factor. (People v. McNiece (1986) 181 Cal.App.3d 1048, 1058-1059 [great bodily injury and vulnerability inherent in felony driving under the influence], disapproved on other grounds in People v. McFarland (1989) 47 Cal.3d 798, 804-805; People v. Bloom (1983) 142 Cal.App.3d 310, 322 [same].) However, this rule does not preclude a finding of great vulnerability or other factors for a particular offense, even if a vulnerable victim is inherent to the crime. (See McNiece, supra, at pp. 1059-1060; Bloom, supra, at p. 322.)
While inflicting corporal injury on a child presupposes a vulnerable victim, defendant’s victims were particularly vulnerable even for this crime. Section 273d, subdivision (a), applies to “any person who willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition . . . . ” Although the Legislature did not define the term “child”, the courts have found this synonymous with “minor,” and therefore applied the statute to the infliction of corporal injury on anyone under the age of 18. (People v. Thomas (1976) 65 Cal.App.3d 854, 857-858.)
Defendant’s victims were much younger than 18, with R. interviewed about the crimes when she was 11, and R. M. and L. M. having related to being molested by defendant at the respective ages of nine and 13. Their youth thus renders them particularly vulnerable in the context of section 273d.
The long-term physical abuse at the hands of defendant, D. R., and C. P., and sexual abuse by C. P. and D. R. also left the girls particularly vulnerable. Defendant, who was R.’s mother, like a mother to L. M., and a resident caretaker of R. M., knew about their physical and sexual abuse at the hands of C. P. and D. R., but did not help the girls, instead exploiting her position of power to commit her crimes against them, rendering them more vulnerable than the standard victim contemplated under section 273d.
Defendant also used weapons on the girls, including a frozen soda bottle, belts, spatulas, and other implements which were handy. Although it is true the crime of corporal injury to a child presupposes some harm, defendant’s extended physical abuse of her victims far exceeds the norm for this crime. Likewise, there is substantial evidence showing she actively participated in the prolonged abuse of the girls.
The court’s decision to deny probation was not an abuse of discretion. Indeed, it would have been an abuse of discretion to grant probation under these circumstances. Counsel was not ineffective for failing to object.
II
The court imposed an upper term for the principal offense, one of the counts of inflicting corporal injury on a child, and imposed consecutive terms for the subordinate offenses. In support of the upper term, the court stated: “the crime involved great bodily injury, great violence or threat of great bodily injury, the victims were particularly vulnerable, the defendant used or was armed with weapons, the defendant took advantage of a position of trust, the victims were children, the crimes occurred over a substantial period of time.”
Defendant contends the upper term sentence was an abuse of discretion and the upper term and consecutive sentences violated her rights to jury trial and due process as recognized in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham). She is mistaken.
A.
Defendant claims her upper term was an abuse of discretion because the court relied on aggravating factors which are inherent in the crime of corporal injury to a child. Most of the factors upon which the court relied were the same as those invoked in the denial of probation. As we have already discussed, the factors relating to the victim’s vulnerability, the crime involving great bodily injury, and the use of weapons are clearly present to a much greater degree than what may be inherent in defendant’s crimes.
Defendant, the mother of one victim, like a mother to another, and a resident caregiver to the third, was in a position of trust over the victims more than what is inherent in the crime of corporal injury to a child. The record also shows that defendant’s abuse of the girls took place over a long period of time, a factor not inherent in her crime.
The court did err in citing “the victims were children.” Because injury to a child is an element of the offense of corporal injury to a child, being a child cannot be used as an aggravating factor for the crime. (People v. Burbine (2003) 106 Cal.App.4th 1250, 1261.) However, the court’s invocation of a single improper factor is harmless when it also relied on several other valid aggravating factors. “When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.” (People v. Price (1991) 1 Cal.4th 324, 492.)
Defendant also argues the court failed to give proper weight to her mitigating factors. The court is not obligated to explain why it rejected or minimized any mitigating factors. (People v. Johnson (1988) 205 Cal.App.3d 755, 758.) It was well within the court’s discretion to conclude any mitigating factors did not warrant a lower sentence.
B.
In Cunningham, the United States Supreme Court held California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments” to the extent it allows a judge to impose an upper term sentence “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].) Applying Cunningham, the California Supreme Court has held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 816.)
Defendant argues her upper term sentence is invalid because none of the aggravating factors cited by the court were found by a jury or are related to her nonexistent criminal record.
The determinate sentencing law (§ 1170) was amended by Statutes 2007, chapter 3, section 2 (Senate Bill 40), in response to Cunningham. Senate Bill 40 amended section 1170 so that: (1) the middle term is no longer the presumptive term absent aggravating or mitigating facts found by the trial judge; and (2) a trial judge has the discretion to impose an upper, middle or lower term based on reasons he or she states. As amended, section 1170 now provides as pertinent: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . The court shall set forth on the record the reasons for imposing the term selected . . . .” (§ 1170, subd. (b).) This amended version of section 1170 became effective on March 30, 2007. (Stats. 2007, ch. 3, § 2.) The trial court’s sentence, which was imposed on October 18, 2007, followed these directives.
In People v. Sandoval (2007) 41 Cal.4th 825, the Supreme Court stated that it was “arguable” whether the amendments to the DSL are procedural in nature and therefore applicable to any sentencing proceedings conducted after the effective date of the amendments. (Id. at p. 845.) However, instead of deciding this question, the Court invoked its own discretionary power to modify procedural laws to conform to constitutional principles and did so consistent with the terms enacted by Senate Bill 40. (Id. at pp. 845-846.) In so doing, the court found application of the procedural terms of Senate Bill 40 to resentencing procedures for crimes committed before its passage violates no principle of ex post facto protection. (Id. at p. 855.) It further found that application of those modified procedures to the defendant’s crimes does not violate due process. (Id. at pp. 856-857.)
Defendant, recognizing we are bound to follow Sandoval, argues it is wrongly decided and applying the procedure of Senate Bill 40 when sentencing her violates the ex post facto clause. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Following Sandoval, we conclude defendant’s upper term did not violate the rights to jury trial and due process recognized in Cunningham.
C.
Defendant argues imposition of consecutive terms violated her right to jury trial. She acknowledges People v. Black, supra, 41 Cal.4th 799, which is binding on this court, held imposition of consecutive terms upon facts not found by a jury does not violate the Sixth Amendment right to trial by jury. (Id. at p. 822.) She summarily challenges Black in order to preserve the issue for further review.
III
Pursuant to section 294, subdivision (a), the court imposed a $1,000 child abuse restitution fine on all three counts. Attendant to the fines, the court also imposed the following: a $200 court surcharge (§ 1465.7, subd. (a)), a $500 construction fund fee (Gov. Code, § 70372, subd. (a)), a $1,000 state penalty assessment (§ 1464), a $700 county penalty assessment (Gov. Code, § 76000, subd. (a)(1)), a $100 DNA fee (Gov. Code, § 76104.6), a $100 DNA fund fee (Gov. Code, § 76104.7) and a collection fee (§ 294, subd. (d)).
Defendant contends and the Attorney General agrees that several of these fees and assessments cannot be imposed on the child abuse restitution fine. We agree.
Under recently enacted legislative amendments, the penalty assessment and surcharge provisions cited above, with the exception of the collection fee, do not apply to restitution fines. (People v. Walz (2008) 160 Cal.App.4th 1364, 1371-1372; § 1464, subd. (a)(3)(A); § 1465.7, subd. (a); Gov. Code, § 70372, subd. (a)(3)(A); Gov. Code, § 76000, subd. (a)(3)(A); Gov. Code, § 76104.6, subd. (a)(3)(A); Gov. Code, § 76104.7, subd. (c)(1).) As they reduce a defendant’s punishment, the amendments operate retroactively, and apply to this case. (People v. McCoy (2007) 156 Cal.App.4th 1246, 1257.)
We shall modify the judgment to strike the $200 court surcharge (§ 1465.7, subd. (a)), $500 construction fund fee (Gov. Code, § 70372), $1,000 state penalty assessment (§ 1464), a $700 county penalty assessment (Gov. Code, § 76000), $100 DNA fee (Gov. Code, § 76104.6), and the $100 DNA fund fee (Gov. Code, § 76104.7) as applied to the child abuse restitution fines.
Section 1465.7 does not state it is inapplicable to restitution fines, but the provision is a surcharge on the section 1464 state penalty assessment, which explicitly does not apply to restitution fines.
There are two other errors not identified by the parties. The court imposed the child abuse restitution fine along with the improper fees and assessments for all three counts. While the fine applies to defendant’s convictions of corporal injury to a child (§ 273d), the fine does not apply to count 43, dissuading a witness (§ 136.1, subd. (c)(1)). (§ 294, subd. (a).) Also, the abstract incorrectly refers to count 43 as count 41. We shall strike the fine as applied to count 43 and order the abstract corrected.
These issues seem noncontroversial and the court has resolved them summarily in this opinion, in the interest of judicial economy. Any party aggrieved by this procedure may petition for rehearing. (Gov. Code, § 68081.)
DISPOSITION
The judgment is modified to strike the child abuse restitution fine (Pen. Code, § 294, subd. (a)) in count 43 and to strike the $200 court surcharge (Pen. Code, § 1465.7, subd. (a)), $500 construction fund fee (Gov. Code, § 70372), $1,000 state penalty assessment (Pen. Code, § 1464), $700 county penalty assessment (Gov. Code, § 76000), $100 DNA fee (Gov. Code, § 76104.6), and the $100 DNA fund fee (Gov. Code, § 76104.7) as applied to the child abuse restitution fines in counts 39 and 40. The court shall prepare an amended abstract reflecting these modifications and that defendant’s conviction for dissuading a witness (Pen. Code, § 136.1, subd. (c)(1)) is on count 43 and shall forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: DAVIS, J., HULL, J.