Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. Peter M. Schultz, Judge. Super. Ct. No. 05CM4803
Paul R. Kraus, 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, Janis Shank McLean and Clayton S. Tanaka, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Gomes, J., and Dawson, J.
Appellant Nathaniel Willis Smith was charged by information with willful infliction of cruel or inhuman corporal punishment or injury on a child, resulting in traumatic condition (Pen. Code, § 273d, subd. (a); count 1), and willful infliction of corporal injury on a spouse or cohabitant, resulting in traumatic condition (Pen. Code, § 273.5, subd. (a); count 2). A jury convicted appellant on the count 2 offense, and the court declared a mistrial as to, and thereafter dismissed, count 1. The court imposed a prison term of three years.
On appeal, appellant contends the sentencing court erred in considering the facts underlying count 1, notwithstanding that appellant agreed that the court be allowed to consider such facts, because they were not supported by substantial evidence. We will affirm.
FACTUAL AND PRODEDURAL BACKGROUND
Facts
On the evening of November 10, 2005, Maribel Vallero returned home from work and found A., her seven-month-old son, in bed with appellant, the boy’s father, who was sleeping. Vallero picked up A. and took him into another room, where she noticed swelling, redness and what appeared to be a bruise on the boy’s head, and a mark on his shoulder.
Vallero went back into the room where appellant was sleeping, woke him and asked him about the apparent injuries to A. Appellant became irritated; stated, “ ‘Here’s your fucking keys’ ”; and threw a ring of keys at Vallero. The keys struck Vallero, who was holding A. on her hip at the time, on the neck, causing a cut approximately two inches in length.
Procedural Background
On March 16, 2006, the prosecutor informed the court, and defense counsel confirmed, that the People would move “to dismiss [count 1] with a Harvey waiver.” Thereafter, the court dismissed count 1.
In People v. Harvey (1979) 25 Cal.3d 754), the court held that in the absence of any “contrary agreement,” a court cannot consider at sentencing the facts underlying, and solely pertaining to, counts dismissed as part of a plea agreement. (Id. at pp. 758-759.) The “contrary agreement” noted in Harvey has become known as a Harvey waiver.
On April 25, 2006, in imposing sentence, the court stated: “With regard to the issue of granting or denying probation, a grant of probation does not appear to be appropriate based on Mr. Smith’s prior performance on probation; that prior performance being entirely unsatisfactory. [¶] It’s particularly significant in a case like this where he was on probation for a similar offense for violating the same Penal Code Section and followed [sic], he failed to follow the terms of probation specifically designed to prevent the recurrence of the crime, mainly attending the counseling that was ordered.” Immediately thereafter, the court imposed sentence.
DISCUSSION
As indicated above, appellant argues that the sentencing court relied on the facts of the dismissed count, these facts were not supported by substantial evidence and therefore the sentence must be vacated and the matter remanded for resentencing. There is no merit to this contention.
Respondent argues this claim is waived because appellant failed to raise it below. We assume without deciding that appellant’s claim is cognizable on this appeal.
As appellant points out, any fact relating to a dismissed count upon which a sentencing court relies, pursuant to a Harvey waiver, must be supported by a preponderance of the evidence. (People v. Leung (1992) 5 Cal.App.4th 482, 506 [“The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance of the evidence”].) “We will uphold a trial court’s sentencing determination where it is supported by substantial evidence.” (People v. Downey (2000) 82 Cal.App.4th 899, 917.)
The major premise of appellant’s challenge to the sentence imposed is the claim that the court relied on the facts of the dismissed count. The record does not support this claim. In stating its reasons for imposing a prison sentence, the court cited only appellant’s poor performance on probation and, in particular, appellant’s failure to attend court-mandated counseling. The court made no mention of the facts of the dismissed count. The mere fact, upon which it appears appellant relies, that the sentencing judge also presided over the trial, establishes no more than that the court was aware of the facts of the dismissed count. There is nothing in the record to suggest the court relied on those facts. On this record, appellant has not met his burden of establishing error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [“ ‘[a]ll intendments and presumptions are indulged to support [the judgment] on matters as to which the record is silent, and error must be affirmatively shown’ ”].)
DISPOSITION
The judgment is affirmed.