From Casetext: Smarter Legal Research

People v. Pardo

California Court of Appeals, Fourth District, Second Division
Mar 11, 2008
No. E041675 (Cal. Ct. App. Mar. 11, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. GEORGE BRET PARDO, Defendant and Appellant. E041675 California Court of Appeal, Fourth District, Second Division March 11, 2008

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County Super.Ct.No. SWF009854. Rodney L. Walker, Judge.

Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Scott Taylor and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAMIREZ, P. J.

INTRODUCTION

Defendant George Bret Pardo appeals his upper term prison sentence as a violation of his Sixth and Fourteenth Amendment constitutional rights to trial by jury. He also argues that the abstract of judgment must be corrected to reflect the stay of his sentences on counts 5 and 6. We agree as to the necessary corrections to the abstract of judgment, but will otherwise affirm his sentence.

FACTS AND PROCEDURAL HISTORY

On October 21, 2004, defendant, who was on probation for a 2003 domestic violence conviction (Pen. Code, § 273.5), was babysitting his girlfriend’s daughter, 14-month-old “Jane Doe.” Defendant had known Jane Doe since she was six months old; she called him “da-da” and frequently slept between him and her mother. During the hours she was in defendant’s care on October 21, Jane Doe sustained a depressed skull fracture, tears to her anal and vaginal orifices, an injury to her mouth, and scratches and petechiae to her neck. Defendant had different stories about how the head injury occurred. At first, he said she had bumped her head on his truck when he bent over to retrieve a dropped bottle while holding her in his arms; later, he said she had been injured when he threw her up in the air and she fell on the garage floor; at his trial, he said that both of these things had happened. Defendant said the infant’s neck injuries occurred when he removed her unbuttoned shirt over her head. He denied knowing how she had received the vaginal and anal injuries, but speculated that she may have received them by trying to climb out of her playpen.

Dr. Sandra Murray, a child abuse specialist physician who examined Jane Doe on October 22, 2004, described the injuries, pictured in multiple photographs and diagrams admitted into evidence, as “very, very, fresh . . . .” The skull fracture appeared to be the result of a forceful blow to the head; the neck petechiae looked like the result of a strangulation injury; and the genital injuries were the result of forceful sexual penetration. “[A] simple fall,” Dr. Murray said, “would not cause the depressed skull fracture nor would it cause a fracture [like Jane Doe’s] that crosses the suture line.” Such a fracture required “a fair amount of force.” It would not have been caused by a short fall onto a flat concrete surface. The genital and anal injuries involved multiple lacerations and “extensive bruising,” and would not have been caused by straddling a padded playpen railing in a diaper. The likely cause of the combination of injuries seen—skull fracture, neck petechiae, injuries to the genital and anal areas—was that the child had suffered multiple events in an attack by another individual.

Defendant’s mother testified in his defense, but admitted that she had once seen defendant hit his father during an argument and said that he had once been ordered to take a 52-week anger management class after an incident involving a former girlfriend.

Defendant testified too. He described his interactions with two former girlfriends. He had grabbed one of them, injured her, and punched a hole in the bedroom door of her apartment with his fist when he found her with another man. He entered the home of a second former girlfriend at about 3:00 a.m., climbed the stairs and let himself into her room where he found her with a male friend; this incident led to another encounter with police. Defendant repeated his version of how Jane Doe’s head injuries occurred. He insisted that both the bumping of her head on his truck and her fall when he was tossing her up in the air had been accidents.

On September 29, 2006, a jury convicted defendant of two counts of aggravated sexual assault (Pen. Code, § 269, subd. (a)(5), counts 2 & 3); the infliction of cruel and inhuman corporal punishment and injury on a child (Pen. Code, § 273d, subd. (a), count 4); willful and unlawful infliction of physical pain and mental suffering upon a child (Pen. Code, § 273a, subd. (a), count 5); and the commission of a lewd and lascivious act upon a child under the age of five (Pen. Code, § 288, subd. (b)(1), count 6). In addition, the jury found that in the commission of the offenses in counts 4 and 5, defendant personally inflicted great bodily injury on a child under the age of five. (Pen. Code, §§ 12022.7, subd. (d), 1192.7, subd. (c)(8).)

On October 27, 2006, the court sentenced defendant to concurrent terms of 15 years to life in prison for counts 2 and 3. On counts 4, 5, and 6, the court sentenced him as follows: to consecutive upper terms of six years each, for a total of 12 years, for count 4, and the enhancement related to count 4, the principal count; to concurrent terms of 4 years each for count 5 and the enhancement related to count 5; and to another concurrent term of six years for count 6. Defendant’s final sentence was a determinate term of 12 years to be followed by two concurrent terms of 15 years to life.

In explaining its choice of the upper terms for count 4 and its enhancement, the court found a number of aggravating factors related to the crime and to the defendant. (Cal. Rules of Court, rule 4.421.) Aggravating factors related to the crime were, first, that they were committed with great violence: “This child suffered a blow to the back of her head slightly above and behind her left ear, which, although not breaking the skin, nonetheless resulted in a depressed skull fracture at the impact site and a radiating linear fracture from that site about a quarter of the way around her skull down toward the back of her skull.” Second, the 14-month-old victim was particularly vulnerable: “[M]ore vulnerability is hard to imagine in another crime victim.” Third, defendant, a babysitter who had been “left in the total charge and responsible for the care of this child,” took advantage of a position of trust to commit the offense.

Aggravating factors related to defendant included, first, that he had engaged in previous violent conduct. Even though his prior convictions were misdemeanors, they involved “entry into somebody else’s home in the night, climbing of stairs, and the forcing or breaching of doors in order to intimidate or assault . . . .” Behavior of this kind demonstrated “a significant level of anger or lack of control” such that anyone with these problems would reasonably be seen as a danger to society.

The second factor related to defendant was that his crimes were of increasing seriousness: whatever the precise nature of his previous convictions as an adult or in juvenile delinquency proceedings, his current offenses were worse. “To say that the crimes that the defendant was convicted of are increasingly serious over what he had been convicted of is probably to engage in an understatement.” Third, defendant was on probation when he committed the current offenses; in view of his current convictions, the court was compelled to conclude that his performance had been unsatisfactory.

Defendant apparently had a sealed record of juvenile offenses.

In mitigation, the court found that his prior convictions included only misdemeanors. (Cal. Rules of Court, rule 4.423.) Considering the “recency and frequency” of his offenses, however, the court could not see that this factor provided much of a “positive nature” for defendant.

DISCUSSION

Defendant contends that the court erred in selecting the upper term on count 4 and its related enhancement because the factors the court used to increase his term were neither found by the jury nor proven beyond a reasonable doubt. His sentence, he argues, violates his Sixth and Fourteenth Amendment constitutional rights to trial by jury as interpreted by the United States Supreme Court in Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham); Blakely v. Washington (2004) 542 U.S. 296 (Blakely); and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).

Cunningham, Blakely, and Apprendi:

In Cunningham,the Supreme Court made it clear that its earlier holdings in Blakely and Apprendi apply to the imposition of the upper terms available under California’s determinate sentencing law. As a result, the Supreme Court overruled our own high court’s decision to the contrary in People v. Black (2005) 35 Cal.4th 1238. (Cunningham, supra, 127 S.Ct. at pp. 869, 871.) “‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” (Blakely, supra, 542 U.S. at p. 301, citing Apprendi, supra, 530 U.S. at p. 490.) “Our precedents make clear . . . that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Blakely, supra, at p. 303.) In People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), the California Supreme Court revisited the issue of aggravating factors and upper term selection in light of Cunningham. In Black II, the court determined that “[I]mposition 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.” (Black II, supra, at p. 816.) An aggravating circumstance is one that makes the offense distinctly worse than the ordinary. (Id. at p. 817, citing People v. Moreno (1982) 128 Cal.App.3d 103, 110.)

The court in Sandoval made it clear that the denial of the right to trial by jury on aggravating circumstances is reviewed under the Chapman v. California (1967) 386 U.S. 18 “harmless error” standard of review. (Sandoval, supra, 41 Cal.4that pp. 835-836, 838.) The court could not be certain that the Sandoval jury would have found the victims there particularly vulnerable, but noted that such might be the case where the victim was “very young . . . or otherwise obviously and indisputably vulnerable.” (Id. at p. 842.)

Analysis:

Here, the requirement of “legally sufficient aggravating circumstance” necessary to make defendant eligible for the upper term sentence was satisfied by the fact that he was on probation for a prior violent offense (Pen. Code, § 273.5) when he committed the present crimes. (Black II, supra, 41 Cal.4th at p. 816.) In addition, defendant admitted the details of the prior offenses: he entered the apartment of one former girlfriend, grabbed her, injured her, and punched a hole in her bedroom door. He had another encounter with police after he entered a different girlfriend’s house in the wee hours of the morning, climbed the stairs, and went into her room to find her with someone else.

Beyond his priors, there were at least three other aggravating circumstances either reflected in the jury’s verdict or admitted by defendant that supported the court’s term selection: the victim was particularly vulnerable; defendant took advantage of a position of trust; and the crime involved great violence. First, Jane Doe’s age was reflected in the jury’s finding that defendant had inflicted pain and committed lewd acts on a child under the age of five; and her extreme youth was a “clear-cut” fact that made her “obviously and indisputably vulnerable.” (Sandoval, supra, 41 Cal.4that p. 842.) Second, defendant was babysitting Jane Doe at the time she received her injuries; she called him “da-da”; and she frequently slept between him and her mother. All of these circumstances admitted and described by defendant on the stand demonstrated that he held a position of trust in relationship to the victim and her mother.

Finally, the jury’s verdicts reflected the fact that the crimes were committed with great violence. Defendant was convicted of aggravated sexual assault (Pen. Code, § 269, subd. (a)(5)); the infliction of cruel and inhuman physical pain and suffering upon a child (Pen. Code, § 273d, subd. (a)); and the infliction of great bodily injury upon the victim (Pen. Code, §§ 12022.7, subd. (d), 1192.7, subd. (c)(8)). Even assuming, arguendo, that great violence was not directly reflected in these verdicts and that the court somehow erred in so concluding, any purported error was harmless because a jury applying the beyond-a-reasonable-doubt standard of proof would unquestionably have found this circumstance. (Chapman, supra, 386 U.S. at p. 24; Sandoval, supra,41 Cal.4th at p. 838.) Using photographs and standard diagrams, Dr. Murray showed that Jane Doe’s skull fracture, for instance, was no ordinary fracture and that it could not have been caused by a simple fall onto flat cement in the way that defendant had described. “[A] simple fall,” Dr. Murray said, “would not cause the depressed skull fracture nor would it cause a fracture [like Jane Doe’s] that crosses the suture line.” Such a fracture required “a fair amount of force.” The court’s description of the precise characteristics of the injury merely reiterated the doctor’s testimony: “This child suffered a blow to the back of her head slightly above and behind her left ear, which, although not breaking the skin, nonetheless resulted in a depressed skull fracture at the impact site and a radiating linear fracture from that site about a quarter of the way around her skull down toward the back of her skull.” Similarly, Dr. Murray, again using photographs of the victim’s injuries, testified to the “blunt-force trauma”—the violence—necessary to produce the tears to her vagina and anus.

In sum, defendant’s sentence did not violate his constitutional rights to trial by jury because the aggravating circumstances, which the court relied on in selecting the upper term, were either admitted by him or reflected in the jury’s findings.

Correction to the Abstract of Judgment:

Defendant contends that the abstract of judgment does not reflect the court’s stay of his sentence on counts 5 and 6, pursuant to Penal Code section 654, and must be corrected. The People agree. So do we.

If the abstract of judgment fails to reflect the judgment as set forth by the court, the error is clerical and can be corrected by this court or by the trial court. (People v. Little (1993) 19 Cal.App.4th 449, 451-452.)

At the beginning of the sentencing hearing, the court noted that the head injury convictions, in counts 4 and 5 “must be considered basically as one event and probably subject to the limitations of [Penal Code section] 654.” The district attorney agreed that the head injury convictions together were subject to the limits of Penal Code section 654. Counts 4 and 5 (injuries to a child), the court later reiterated, “are subject only to single punishment.” Similarly, the court found that count 6 (lewd act by force) was just “another way of alleging with lesser import the crimes” in counts 2 and 3 (penetration by force).

Initially, the court referred to counts 2, 3, and 4, but later acknowledged that because defendant had been acquitted of count 1 (a torture charge) there was a discrepancy between the numbering in its file and the numbering of the actual convictions.

It is evident from the court’s statements that it intended to stay the concurrent sentences on counts 5 and 6, but the abstract of judgment does not reflect this. Accordingly, we will order the abstract of judgment corrected to reflect that the sentences imposed for counts 5 and 6 are stayed pursuant to the provisions of Penal Code section 654.

DISPOSITION

The trial court is ordered to correct the abstract of judgment to reflect that the sentences imposed for counts 5 and 6 are stayed pursuant to the provisions of Penal Code section 654 and the clerk is directed to send a copy of the corrected abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

We concur: HOLLENHORST, J., GAUT, J.


Summaries of

People v. Pardo

California Court of Appeals, Fourth District, Second Division
Mar 11, 2008
No. E041675 (Cal. Ct. App. Mar. 11, 2008)
Case details for

People v. Pardo

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GEORGE BRET PARDO, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Mar 11, 2008

Citations

No. E041675 (Cal. Ct. App. Mar. 11, 2008)