P. v. Diego
Filed 2/6/13 P. v. Diego CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
LUCERO DIEGO,
Defendant
and Appellant.
E053553
(Super.Ct.No.
RIF146164)
OPINION
APPEAL
from the Superior Court
of
County. Michele D.
Levine, Judge. Affirmed with directions.
Allen
G. Weinberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and
Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
Lucero Diego appeals from the sentences she received after a jury convicted her
of murder (Pen. Code, § 187, subd.
(a))
actions in shaking and suffocating her two-month-old son, Romeo. Specifically, defendant argues: 1) this court
should reverse her upper-term sentence for child abuse likely to produce great
bodily injury (§ 273a, subd. (a)) because the trial court failed to state its
reasons for imposing the aggravated term; and 2) this court should reverse her
25-years-to-life term for child abuse resulting in death (§ 273ab) as constituting
cruel and unusual punishment because
the conviction is based on second-degree murder rather than first-degree
murder. As discussed below, we hold that
defendant’s first argument was waived and reject the second argument. We also order the abstract of judgment
amended to reflect that the trial court ordered the determinate term to be
served concurrent with, rather than consecutive to, the indeterminate term.
and Procedure
About
8:00 am on the morning of September 19, 2008, emergency
personnel went to a home after a 911 caller reported that a two-month-old baby,
defendant’s son Romeo, was not breathing.
When paramedics arrived, Romeo was not breathing, his heart was not
beating, and his lips were blue. By 9:45 that morning, the medical team at the
hospital where Romero was taken had declared Romeo brain dead. The autopsy revealed numerous fractured ribs
near the spinal cord that had been healing for two to four weeks, along with a
subdural hemorrhage. Romeo also had two
broken clavicle bones and other injuries both old and new. Romeo’s injuries were consistent with someone
having held Romeo with their fingers near his spinal cord and thumbs on his
chest or clavicles and shaking him violently.
Defendant
admitted during a law enforcement interview that, on the morning of Romeo’s
death, she had become frustrated with his crying. She stated she shook Romeo violently by
holding his chest, and then smothered him by placing him face down on a pillow. Defendant admitted that she intended to just
“end it†because of her extreme frustration.
On
March 15, 2010, the People
filed an amended information charging defendant in count 1 with murder, in
count 2 with child abuse resulting in death, and in count 3 with child abuse
likely to produce great bodily injury.
With regard to count 3, the information also alleged that defendant
personally inflicted great bodily injury on a child under the age of 5 (§
12022.7, subd. (d)).
On
November 8, 2010, a jury
found defendant guilty as charged, fixed the degree of murder in count 1 as
second-degree, and found true the great bodily injury allegation as to count 3.
On
March 11, 2011, the trial
court imposed the mandatory sentence of 25 years to life on count 2. On count 3, the court imposed the upper term
of six years, plus five years for the great bodily injury enhancement, and ran
them concurrent with the term on count 2.
The court imposed a term of 15 years to life for count 1, but stayed it
pursuant to section 654. This appeal
followed.
1.
Defendant Waived any Objection to the Upper Term Sentence on Count 3
Defendant argues
her sentence for count 3—child abuse likely to produce great bodily
injury—should be reversed because the trial court failed to state its reasons
for imposing the aggravated term of six years.
We agree with the People that defendant waived the right to appeal this
issue. This is because she did not raise
it in the trial court, despite being given both notice of the upper term via
the probation report and the express opportunity by the trial court to state
any objections before the sentence was imposed.
In People
v. Scott (1994) 9 Cal.4th 331 (Scott),
the California Supreme Court held that a defendant may not, for the first time
on appeal raise “claims involving the trial court’s failure to properly make or
articulate its discretionary sentencing choices†if he or she did not first
object in the trial court. (
the defendant argues on appeal that the trial court “failed to state any
reasons or give a sufficient number of valid reasons†for the sentence
imposed. (Id. at p. 354.) This is
because “counsel is charged with understanding, advocating, and clarifying
permissible sentencing choices at the hearing.
Routine defects in the court’s statement of reasons are easily prevented
and corrected if called to the court’s attention.†(Id.
at p. 353.) The court went on to qualify
this waiver rule by specifying that “there must be a meaningful opportunity to
object to the kinds of claims otherwise deemed waived by today’s decision. This opportunity can occur only if, during
the course of the sentencing hearing itself and before objections are made, the
parties are clearly apprised of the sentence the court intends to impose and
the reasons that support any discretionary choices. (Id.
at p. 356.)
Here, defendant
argues that, because the trial court did not make a tentative ruling before
imposing the upper term for count 3, she was deprived of a “meaningful
opportunity to object†under Scott. However, this ignores the Supreme Court’s
later clarification of this exception to the Scott waiver rule in People
v. Gonzalez (2003) 31 Cal.4th 745 (Gonzalez). The court in Gonzalez expressly stated that the trial court need not issue a
tentative decision before the sentencing hearing in order to fulfill
object†requirement. Rather, “Under
California law, information pertinent to sentencing is frequently contained in
the presentence probation report, thus enabling the parties to anticipate the
trial court’s sentencing choice and its reasons. [Citation.]â€
(Id. at p. 754.)
Here, as the People point out, the
probation report expressly weighed the circumstances in aggravation and
mitigation and recommended an upper-term sentence for count 3. In addition, the trial court stated that it
had read and considered the probation report before it sentenced appellate. Further, the trial court invited comments from
the parties before it proceeded with sentencing. Defense counsel, after clarifying that the
court was “inviting remarks,†first stated that “there’s not a great deal that
an attorney can say that could change these kinds of things in this
forum.†Defense counsel then described
defendant’s remorse and sorrow at the death of her infant son and concluded
with “And I guess with that, I’ll just have a seat. Thank you.â€
Thus, despite having been given access to the probation report that
recommended the upper term sentence, and then being asked by the trial court to
make any comments he felt were necessary, defense counsel failed to object at
all to the upper term sentence for count 3.
For this reason, under both Scott
and Gonzalez, defendant waived the right
to appeal this issue.
Sentence of 25 Years to Life Is Not Cruel and Unusual
Defendant argues
that the sentence of 25 years to life imposed for her conviction for child
abuse resulting in death is cruel and unusual because it is based on a finding
of second-degree murder rather than first degree murder, and based on the facts
of the case. We emphatically disagree.
As provided by
section 273ab, the trial court sentenced defendant to a prison term of 25 years
to life. Defendant contends the
particular circumstances of this case make the sentence cruel and unusual
punishment as applied to her. (
In a similar case
involving a youthful defendant, the court rejected a cruel and unusual
claim: “Section 273ab describes a very
serious offense. Not only does the crime
require the killing of an extremely vulnerable child, it requires an assaultive
act of great violence by one charged with the child’s care. [¶]
Central to appellant’s claim his punishment is cruel or unusual is that
it is the same as the punishment for first degree murder when, he contends, his
offense was less serious and more like assault by means of force likely to
cause great bodily injury (§ 245, subd. (a)) or involuntary manslaughter (§
192, subd. (b)). While it is true
section 273ab does not require an intent to kill or any other form of malice
aforethought, neither does first degree felony murder [citation] and neither
does the three strikes law.
[Citation.] [¶] The Legislature could reasonably conclude
given the particular vulnerability of the victim, the relationship of the
victim to the defendant, the violent and purposeful nature of the act involved
and the fact a death results, the crime described in section 273ab is a very serious
one and a term of 25 years to life was appropriate.†(People
v. Lewis (2004) 120 Cal.App.4th 837, 855-856 (Lewis); People v. Norman
(2003) 109 Cal. App.4th 221, 230-231.)
As applied to the
Lewis defendant, the court said: “Appellant is a relatively young man without
a criminal record. Still, the amount of
force required to cause four-month-old Jace’s fatal head injuries and the
amount of anger and loss of control that led to the assault all lead us to conclude
while the punishment imposed is harsh, it is not disproportionate to
appellant’s culpability.†(
856.) The same analysis operates here
where defendant inflicted violent fatal injuries on her infant son because his
crying frustrated her. We reject the claim
of cruel and unusual punishment.
3.
As the People
point out, at the sentencing hearing
the trial court clearly indicated its intent that the determinate term be served
concurrently with the indeterminate term, noting first that “the Court will
order that [this] is served concurrently or that [c]ount 2 is served
concurrently with that time imposed in [c]ount 3, which means that it will be
served at the same time[,]†and later that the “time period [on the
enhancement] will run concurrently again with that imposed in [c]ount 2.†Based on these statements, it appears the
trial court misspoke when it later indicated, while setting the aggregate
sentence that “the 11 years [is] to run consecutively to the time imposed in
[c]ount 2.†However, it was this final
misstatement that was set forth in the minutes and the abstract of judgment.
“Where there is a
discrepancy between the oral pronouncement of judgment and the minute order or
the abstract of judgment, the oral pronouncement controls. [Citations.]â€
(People v. Zackery (2007) 147
Cal.App.4th 380, 385.) Accordingly, we
order the abstract of judgment amended to reflect the concurrent determinate
term imposed during the trial court’s oral pronouncement of sentence.
Disposition
The trial court
is directed to correct the abstract of judgment to reflect the concurrent
determinate term imposed during the trial court’s oral pronouncement of
sentence. The trial court is further
directed to forward a certified copy of the corrected abstract of judgment to
the Department of Corrections and
Rehabilitation. In all other
respects, the judgment is affirmed.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
RICHLI
J.
KING
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
