P. v. McCloud

Filed 9/27/07 P. v. McCloud CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Christopher G. Estes, Judge. Affirmed.

Marilee Marshall & Associates, Marilee Marshall and Janet R. Gusdorff for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie A. Miyoshi and April S. Rylaarsdam, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *

Yolanda McCloud appeals from a conviction of felony child abuse (Pen. Code,  273a, subd. (a))^[1]and the finding that she inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). She contends that the trial court abused its discretion in sentencing her to state prison instead of granting probation and in refusing to strike the punishment for the great bodily injury enhancement. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Conviction for Felony Child Abuse

An information filed on September 15, 2004 alleged that on April 20, 2003 appellant abused S.M., a minor, in violation of section 273a, subdivision (a), a felony, and that she personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). The information further alleged that appellant was ineligible for probation pursuant to section 1203, subdivisions (e)(3) and (e)(10).^[2]

We state the evidence in a manner supporting the judgment. (People v. Snow (2003) 30 Cal.4th 43, 66.) Eight-year-old S.M. is appellants stepson and the biological son of her present husband, Simon. During a court ordered visitation with Simon at the home he shared with appellant in Palmdale, appellant burned S.M.s hand as punishment for his having allegedly stolen money at a party the day before. Appellant held S.M.s right hand above a gas burner on the kitchen stove for 15 to 20 seconds. She removed his hand from the flame after S.M. screamed and cried, but then returned his hand to the flame two more times. Appellant told S.M. that hell was 20 times hotter than the stove fire. Appellant then took S.M. to the upstairs bathroom, ran cold water over his hand, peeled off the blisters from the burn with tweezers, and treated his hand with cream. Simon entered the bathroom, but did not ask what happened, and S.M. did not tell him that appellant burned him. Neither appellant nor Simon took the boy to the hospital.

Later that day, appellant and Simon drove S.M. to Simons sisters house, which was designated as the pick-up and drop-off for visitations. During the drive appellant spoke with S.M.s biological mother by telephone and told her she had burned S.M.s hand, explaining that because the Bible contains stories of thieves and liars being burned in hell, she wanted S.M. to understand how hell felt. Upon learning of the incident, Simons sister told appellant that burning S.M. could constitute child abuse and she may go to jail. Appellant replied that she would go to jail if it would help straighten S.M. out.

S.M.s mother took him directly to the sheriffs office after picking him up from his aunts house. She then took him to the hospital, where his second and third degree burns were treated with pain medication and his hand was bandaged. S.M. was later given antibiotics when his hand became infected and he was also instructed to exercise his hand to keep full extension of his fingers.

The first two days after the incident, S.M. acted uncharacteristically sheltered, isolated and quiet. He suffered considerable pain after the burning and during the healing process. He had limited movement in his burned fingers for a number of months. By the time of trial, two and one-half years after the incident, S.M. had regained use of his hand but scar tissue remained, and the shape of his fingers was somewhat distorted.

The jury found appellant guilty of felony child abuse, in violation of section 273a, subdivision (a). The jury further found that appellant had personally inflicted great bodily injury upon S.M. within the meaning of section 12022.7, subdivision (a).

Sentencing

At the initial sentencing hearing, Simons sister testified that appellant told her that she had punished her biological infant son K. for playing with her cigarette lighter by placing his hand over the flame. Appellant told Simons sister that she did not believe there was anything wrong with disciplining a child in that manner. Appellant called two defense witnesses, including her pastor, who testified to her good work as a volunteer teacher in her churchs childrens program. Appellant also submitted 18 letters attesting to her good character. The court continued sentencing to allow time for a section 1203.03 diagnostic report on the advisability of probation.

At the continued sentencing, the court considered a June 2004 probation report and a supplemental probation report prepared after the verdict, both of which recommended state prison. The court also considered the section 1203.03 diagnostic report, which contained three professional recommendations of probation. Sentencing memoranda, statements by both parties and testimonial evidence were also considered. The court noted that probation was available only if the case were deemed unusual under section 1203, subdivision (e) given the jurys finding of the infliction of great bodily injury. The court applied the factors outlined in California Rules of Court, rule 4.413,^[3]discussed in greater detail post, to make its determination that appellant failed to demonstrate hers was an unusual case. The court characterized appellants conduct as cruel and callous.

Probation was denied and appellant was sentenced to state prison for seven years, consisting of the midterm of four years for felony child abuse, plus three years for the great bodily injury enhancement.

DISCUSSION

I. Contentions on Appeal and Standard of Review

Appellant contends that the trial erred in sentencing her to state prison instead of granting probation. Alternatively, she assigns error to the courts refusal to strike the punishment for the great bodily injury enhancement.

We review both contentions for an abuse of discretion, which we will find only if the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that results in a manifest miscarriage of justice. [Citation.] (People v. Roldan (2005) 35 Cal.4th 646, 688; People v. Valdivia (1960) 182 Cal.App.2d 145, 147; People v. Meloney (2003) 30 Cal.4th 1145, 1155; People v. Rivas (2004) 119 Cal.App.4th 565, 571.)

II. The Trial Court Did Not Abuse Its Discretion by Sentencing Appellant to State Prison Instead of Probation

Section 273a, subdivision (a) provides for punishment of one year in county jail or two, four, or six years in state prison. Section 12022.7, subdivision (a) requires an additional and consecutive term of imprisonment in the state prison for three years. Section 1203, subdivision (e) provides a list of persons for whom probation should not be granted [e]xcept in unusual cases where the interests of justice would best be served if the person is granted probation . . . . Among persons enumerated are those who willfully inflicted great bodily injury or torture in the perpetration of the crime of which he or she has been convicted or who inflicts great bodily injury in the perpetration of a felony. ( 1203, subds. (e)(3) & (10).)

Rule 4.413 sets forth a list of criteria for assessing whether a case is unusual and probation may be allowed under section 1203, subdivision (e)(3). Generally, a case may qualify as unusual if the facts upon which the statutory limitation on probation is based indicate that, although technically present the statutory limitation is, nevertheless, not fully applicable to the case or if there are facts that limit the defendants culpability. (Rule 4.413 (c)(1) & (2).) That the limitation on probation is not fully applicable can be shown if the circumstances of the crime are substantially less serious than is typical and the defendant has no recent record of a similar criminal act. (Rule 4.413(c)(1)(A).) Facts that may limit a defendants culpability are those showing the defendant acted under duress or provocation, was afflicted by a mental condition or was youthful or aged. (Rule 4.413(c)(2)(A-C).) Courts are to interpret and apply the rule 4.413 factors conservatively. (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1229 [i]f the statutory limitations on probation are to have any substantial scope and effect, unusual cases and interests of justice must be narrowly construed].)

Because the jury found that appellant inflicted great bodily harm within the meaning of section 12022.7, she was presumptively ineligible for probation unless the trial court found her case unusual under the rule 4.413 criteria. In undertaking that analysis, the trial court noted that although appellant had no prior convictions, she was a mature adult with significant life experience and had burned S.M.s hand while she was in a position of trust and confidence and S.M. was in a vulnerable position as a visitor in her home. The court characterized the conduct as cruel and callous. . . . The court highlighted that the crime was not committed under provocation, coercion or duress and that there was no evidence of a mental condition amounting to a defense. These were all legitimate considerations for the trial courts assessment under rule 4.413.

Appellant contends that the trial court abused its discretion by placing undue weight, on the evidence presented during the sentencing hearing that she also burned her biological infant son with a cigarette lighter as a means of disciplining him and on the fact that she injured S.M. while she was in a position of trust and confidence. She argues that the fact that she has no criminal record and that the circumstances in this case were substantially less serious than those typically present in cases involving great bodily injury findings weigh in her favor. Appellant also argues that the diagnostic study recommended that she be granted probation.

But our task in reviewing the trial courts denial of probation is not to reweigh the evidence or the various factors under rule 4.413. We look only to whether the court abused its discretion. (People v. Superior Court (Du)(1992) 5 Cal.App.4th 822, 831.) We find no such abuse of discretion here. The trial courts characterization of appellants deliberate and repeated burning of her then eight-year-old stepsons hand as cruel and callous and the probation reports description of sadistic are supported by the record. Appellant was not provoked in any way, nor was there any evidence she suffered from a mental condition that could have mitigated the seriousness of her crime. We also note that the supplemental probation report reported that appellant is licensed and trained in childcare. (See rule 4.408(a) [court may consider any matter in the record reasonably related to sentencing decision].) Even without considering the evidence of her disciplining an infant child in a similarly cruel manner, there was a sound basis for the trial court to exercise to deny probation in this case.

III. The Trial Court Did Not Abuse Its Discretion by Failing to Strike the Great

Bodily Injury Enhancement and Appellant Has Not Demonstrated Ineffective Assistance of Counsel

For the first time on appeal, appellant argues that the trial court abused its discretion by failing to strike the punishment for the great bodily injury enhancement. Under section 1385, subdivision (c), a court may exercise its discretion to strike or dismiss an enhancement or to strike an additional punishment imposed based on an enhancement. (1385, subd. (c).) The parties do not dispute that the courts discretionary powers extended to the great bodily injury enhancement in this case under section 12022.7. (See People v. Rivas, supra, 119 Cal.App.4th at p. 568.)

But appellant raised no objection in the trial court to the imposition of further punishment based on the jurys finding of great bodily injury. She has, therefore, waived that claim on appeal. (People v. Scott (1994) 9 Cal.4th 331, 348356.) Nevertheless, appellant contends that even if her argument is deemed waived, her trial counsel should have objected and the failure to do so demonstrates that her counsel was ineffective.

Appellant bears the burden of proving ineffective assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 216.) To establish constitutionally inadequate assistance of counsel, she must prove deficient performance by counsel and a reasonable probability that, but for the deficiency, she would have obtained a more favorable outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687696; In re Cudjo (1999) 20 Cal.4th 673, 687.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington, supra, at p. 694.) A claim of ineffective assistance of counsel based on a trial attorneys failure to make a motion or objection must demonstrate not only a lack of tactical reason for the omission but also that the objection would have been meritorious had it been made. (People v. Mattson (1990) 50 Cal.3d 826, 876.)

We disagree that appellants counsel was ineffective in failing to object to the trial courts enhanced sentence. We believe that such an objection would have been unsuccessful and that appellant suffered no prejudice by virtue of the omission.

Under section 1385, a trial court has the authority to strike an enhancement in furtherance of justice. (People v. Rivas, supra, 119 Cal.App.4th at p. 571.) Such a determination requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People . . . . [Citations.] [Citations.] (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530.) Appellant offers no explanation as to how her constitutional rights outweigh the interests of society except to reincorporate her earlier arguments purporting to show an abuse of discretion in imposing a prison sentence instead of granting probation. Having already addressed those arguments in detail, we do not reiterate our complete analysis here. We do note, however, that the court balanced mitigating factors such as the section 1203.03 diagnostic study and appellants lack of a criminal record against aggravating factors such as her maturity and life experience, her position of supervision over her stepchild, her placing S.M.s hand over an open flame three separate times, and the serious second and third degree burns that resulted. The court concluded that S.M.s injuries cannot be minimized. Moreover, appellant has failed to admit that what she did was wrong and apparently continued to believe that her conduct was an appropriate means of disciplining a child, a fact evidenced by her similar cruel treatment of her infant child. We see no indication in the record that the court would have stricken the enhancement had appellants counsel interposed an objection to the enhanced sentence. Nor would we find any abuse of discretion had the court refused to strike the enhancement for the reasons already stated.

Appellant has failed to demonstrate the ineffective assistance of counsel.

DISPOSITION

The trial courts judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

DOI TODD

We concur:

____________________________, P. J.

BOREN

____________________________, J.

ASHMANN-GERST

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Section 1203, subdivision (e) provides that probation shall not be granted to certain enumerated criminals except in unusual cases where the interests of justice would best be served by probation.

^[3] All further citations to rules are to the California Rules of Court.