P. v. Luevano

 

 

 

 

 

Filed 7/18/14 
P. v. Luevano CA5

 

 

 

 

 

 

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT

 

 
>

THE PEOPLE,   Plaintiff and Respondent,                           v.   SERJIO LUEVANO,   Defendant and Appellant.

F065562   (Super. Ct. No. BF134317A)     >OPINION

 

            APPEAL from
a judgment of the Superior Court of Kern
County.  John R. Brownlee, Judge.

            Eileen S. Kotler,
under appointment by the Court of Appeal, for Defendant and Appellant.

            Kamala D.
Harris, Attorney General, Michael P. Farrell, Assistant href="http://www.mcmillanlaw.us/">Attorney General, Catherine Chatman and
Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and
Respondent.

-ooOoo-

On December
22, 2010, defendant Serjio Luevano was charged with second degree murder (Pen.
Code, § 187; count 1)href="#_ftn1"
name="_ftnref1" title="">^[1] and assault resulting in the death of a child
under eight years of age (§ 273ab; count 2).  On July 9, 2012, following a jury trial, he
was acquitted of second degree murder, convicted of the lesser included offense
of involuntary manslaughter (§ 192, subd. (b)), and convicted as charged
with respect to count 2.  On August 14,
2012, the trial court found defendant
ineligible for probation and sentenced him to a term of 25 years to life
pursuant to section 273ab, subdivision (a).href="#_ftn2" name="_ftnref2" title="">^[2]

            On appeal,
defendant makes two contentions.  First,
the trial court failed to sua sponte instruct that the phrase “‘beyond a
reasonable medical certainty,’” which was mentioned by one of the prosecution’s
medical experts in his
testimony regarding the victim’s cause of death, does not equate to a finding
of guilty “beyond a reasonable doubt.” 
Second, the court incorrectly ruled that defendant was ineligible for
probation on the basis of section 1203, subdivision (e)(3).  We conclude the court properly instructed the
jury on the prosecution’s burden of proving guilt beyond a reasonable doubt,
but erroneously determined that defendant was statutorily ineligible for
probation.  Therefore, we remand the
matter for resentencing.

STATEMENT OF FACTS

>I.                  
Prosecution
case-in-chief

On October 11, 2010, at 8:22 p.m.,
defendant called 911 and reported that his two-month-old daughter Kiera was
nonresponsive.  Under the direction of
the dispatcher, he performed cardiopulmonary resuscitation (CPR) until
emergency medical services arrived at his residence in Bakersfield,
California.  Paramedics diagnosed cardiac
arrest, administered advanced life support, restored Kiera’s pulse, and
transported her to Kern Medical Center.

Kiera was transferred to Children’s
Hospital Central California in Madera, California, on October 12, 2010.  That morning, Dr. Adam Holmes, a pediatric
intensive care physician, examined her and noted abnormal href="http://www.sandiegohealthdirectory.com/">breathing patterns and other
signs of severe brain and neurological dysfunction.  Holmes consulted with Dr. Philip Hyden, a
pediatrician and medical director of the hospital’s Guilds Child Abuse
Prevention and Treatment Program.  Hyden
examined Kiera and agreed with Holmes’s findings.  By October 13, 2010, Kiera was intubated and
needed mechanical ventilation.  A
computed tomography (CAT) scan of her brain exhibited edema and subdural
hematoma.  An ophthalmologist also found
extensive bilateral retinal hemorrhage.  Kiera’s blood tests and medical history did
not reveal any infections, genetic disorders, blood disorders, or preexisting
conditions.

Detectives from the Kern County
Sheriff’s Office interviewed defendant on October 13, 2010.  Defendant recalled that on October 11, 2010,
around 5:30 p.m., Brandy Arrellano, his fiancée and Kiera’s mother, went to
work and left the child in his care. 
While he was watching television, he rocked Kiera, who was sitting in her
baby bouncer, for about an hour.  Defendant
later picked up the infant and noticed she “didn’t wake up” and “didn’t startle
or nothing.”  Frightened, he shook Kiera
“real hard” more than once “[f]or like a minute or two” to revive her, but to
no avail.href="#_ftn3" name="_ftnref3" title="">^[3]  Defendant attempted CPR, “patted her,” “smacked
her,” and splashed water on her in the bathtub. 
When Kiera remained nonresponsive, defendant called 911.>

On October 15, 2010, after two
independent examinations confirmed lack of brain stem reflexes, unassisted
respiratory movement, and response to stimuli, Kiera was declared brain
dead.  On October 17, 2010, her organs
were harvested.  The following day, Dr.
Thomas Beaver, a forensic
pathologist, conducted an autopsy and observed bilateral subdural hematoma
and subarachnoid hemorrhage.  He
testified that Kiera’s subdural hematoma was “caused by mechanical forces
applied to small blood vessels in the brain.”href="#_ftn4" name="_ftnref4" title="">^[4]  In turn, the hematoma “exerted pressure on
the brain, causing the arachnoid to hemorrhage beneath it, and then the brain
to swell,” leading to “a vicious cycle” of increased pressure, swelling, and
bleeding.  Beaver highlighted additional
evidence of mechanical forces, including cerebral contusions, cerebral edema,
and optic nerve sheath hemorrhage.  He
opined:

“[T]his is a death from blunt force trauma to the head,
and [the] manner of death is homicide. 
[¶] … [¶]  The injuries, the
abnormalities to the brain, are all from blunt force.  So there’s really no other way that … all
those injuries could occur, all those findings could happen without blunt
force.  [¶]  And then since I don’t have any other
explanation, I think it’s a homicide, because she didn’t do it to herself.”

At trial, Hyden described abusive
head trauma, also known as shaken baby syndrome:

“[L]ittle babies don’t have neck muscula[ture], which
enables them to stabilize their head when there is quick forward and backward
movement to the head.  [¶] … [¶]  [A] child can be in the individual’s arms and
then vigorously, i.e., violently, shaken back and forth so the head is going
forward and backward in such a manner that it is causing the brain itself to go
backward and forward inside the skull and strike the skull back and forth and
cause the gray and white matter inside the brain to tear with violent shaking.

“[The] vessels which are going from a covering over the
brain called the dura mater into the brain itself.  These are called bridging cerebral
veins.  [¶]  They are also deformed during the shaking
back and forth to where they split and tear and cause bleeding into a space,
which is not a real space, it’s a potential space, which means it doesn’t
really show in a normal brain unless there’s fluid inside of it, and then it
fills up.  That’s called the subdural
space.  [W]hen this happens, the brain is
going back and forth, the blood is released into that space, which usually just
indicates that something’s happened violently enough to also injure the
brain.  [¶] … [¶]

            “And
then when we look at the brain, we can see that [there are] changes in the
brain where the gray matter and the white matter start to look almost the same,
because there’s necrosis going on in the brain, there’s lack of oxygen going on
in the brain, and then there’s swelling going on in the brain, which is called
edema.  And all that together can make a
child not be able to breathe because that swelling causes pressure to be put on
the part of the brain that breathes, that controls breathing, which is a
respiratory center of the brain stem. 
And then that can cause the baby to go into what’s called
cardiopulmonary arrest, depending upon the severity of the shaking.”

Hyden added that, in many shaken baby syndrome cases, the
victim did not sustain skull fracture or any injuries below the neck.

Concerning bilateral retinal
hemorrhage, Hyden remarked:

            “They’re
caused by the same forces, the accelerative, decelerative forces which … are
exerted on the head.  Amount of force
applied to the head, the brain, are the same forces applied to the back of the
eye ….  [¶]  [Y]ou get increased int[ra]ocular pressure,
which means pressure inside the eye, … causing more force application by the
retina itself, … which is multilayered, and in it are vessels going
horizontally and vertically.  And this
causes them to tear and pull so that you get layers of bleeding or hemorrhaging
inside the different layers of the retina, caused by the same extreme forces.”

Hyden affirmed that Beaver’s
autopsy findings, namely subdural hematoma, subarachnoid hemorrhage, cerebral
contusions, cerebral edema, and retinal hemorrhage, were “consistent with a
violent, abusive shaking.”  He concluded
Kiera sustained “[s]evere abusive head trauma, resulting in death to a
reasonable degree of medical certainty.”

Dr. Frank Sheridan, a forensic
pathologist and chief medical examiner for the County of San Bernardino,
commented on the debate in the forensic community over whether shaking alone
could result in traumatic head injuries to a child:

            “The
so-called shaken baby syndrome, as the term is frequently used, … traditionally
has implied the concept of an adult picking up a child and shaking it
vigorously backwards and forwards, producing severe and sometimes fatal head
injury.  [¶]  The argument … in the forensic field centers
around whether or not that alone can produce fatal injuries.  [¶] 
There are many who say that you can’t shake a child to death.  You have to do more than that.  You have to shake it and hit its head against
something.

            “ … I’m
not on either end of the spectrum when it comes to this argument.  This is a very heated argument in
forensics.  You’ve got people saying
absolutely yes and others saying absolutely no. 
[¶]  I think it’s possible,
definitely, in very small children. 
Certainly when they get older and heavier, it’s not possible.  And it’s not just the weight, but they get
better neck control, which prevents some of the effects of the shaking.  [¶] 
But I do think in very small children, like children in the first few
months of life, it is possible.”href="#_ftn5"
name="_ftnref5" title="">^[5]

            Sheridan
also offered an explanation for the absence of external bruising:

“[I]f you do an autopsy on a child who has the other
features … like retinal hemorrhage, subdural hemorrhage and brain injury, if
you do an autopsy, as I’ve done many on a child like this, in the majority of
the cases you will see evidence of an impact. 
You’ll see it in the form of a bruise in the scalp, typically at the
back.  [¶]  But there are cases, not uncommon[], where
you don’t see a bruise.  In other words,
there’s no evidence that the child’s head was actually hit against something.

            “The
two possibilities here, one is that, in fact, … the shaking alone was enough to
do the damage to the brain.  But the
alternative[,] and this is supported by various studies … done on either models
or other animals, … when you do not find evidence of an impact is that there
was an impact, but it was against something relatively soft, something padded,
such as, for example, … the back of a sofa or something like that.  [¶] … [¶]

            “ … When
I see cases that have all the other features of shaken baby syndrome but don’t
have an impact, … I’m not sure.  In any
given case I’m not necessarily sure.  But
either they are simply being shaken to death or they’ve been shaken and slammed
against something soft.  So it does not
leave an actual impact, but it does cause enough [gravitational] forces to
damage the brain.”

Sheridan reviewed and agreed with Beaver’s autopsy findings:

            “The
combination of findings in this child, the subdural hemorrhage with small
amount of associated subarachnoid hemorrhage …. 
[¶]  That, in combination with …
the severe type of retinal hemorrhage we have here, plus the fact the child
presented neurologically damaged and, in fact, comatose.  That combination of things indicates an
acceleration/deceleration injury.  It
doesn’t … absolutely have to be an abusive one, but that combination is
indicative of an acceleration/deceleration phenomenon.

“[I]n this case there was no history of a major
traumatic event just before the child was brought to the hospital.  There was also no sign of an impact in the
scalp, which with an accidental one you would expect.  Pretty much every case of accidental head
trauma is going to have an impact on the head, a physical impact.

            “So
putting all that together, I believe, first and foremost, it’s an
acceleration/deceleration injury.  [¶] …
[¶]

            “Basically,
the child was shaken violently and possibly impacted against something that was
soft enough not to leave an impact bruise. 
[¶]  But given the fact that we’re
talking about a very small child here, a two-month-old, approximately, this is
the kind of case that if there is such a thing as pure shaking, … this is the
size of the child where it will happen. 
The age and size.  [¶]  So … to reiterate, either the child was
shaken very violently and that was all there was to it or shaken violently and
then slammed against some surface that was relatively soft.”

>II.               
Defense case-in-chief

Dr. John Plunkett, a general and
forensic pathologist, testified that shaken baby syndrome, which was first
coined in the early 1970’s, was derived from misinterpretation of studies
testing the effects of whiplash on the brain. 
In the late 1980’s, experiments conducted at the University of
Pennsylvania established that “a human being simply cannot attain a level of force
required to cause brain injury by shaking”:

“[T]he fastest that you can shake a ten-pound model is
about three or four times a second back and forth.  [¶] 
And in order to exceed any established injury threshold, you need to
shake at about nine to eleven times per second. 
[¶]  So it’s just purely a study
of motion and it doesn’t really matter whether you’re shaking a doll or a model
or a chimpanzee or whatever.   [Y]ou’re
just looking at how fast back and forth it will go with various neck hinges from
a stiff rod-like hinge to one that looks like a hinge on a door.”

Plunkett pointed out that the
University of Pennsylvania experiments also established the need for an impact
and listed common physical signs:

“[T]ypically, not always, … by that I mean 90, 95
percent of the time, if someone has an impact against an object, even a
carpeted floor, you’re going to see evidence for a bruise.  Not necessarily [o]n the outside, but if
someone dies you’re going to see evidence for it on the inside of the scalp….  [¶] … [¶] 
You’re going to see bruising [o]n the scalp on the part of the scalp
that’s right next to the skull itself. 
[I]t’s very easy to see.  You may
not see it from the outside in part because the … hair gets in the way of your
ability to see it.  But you will see it
on the inside.  [¶] … [¶]

            “If you
were to shake somebody with anywhere near a frequency that would be capable of
causing brain damage, you’d have to exert a similar force to the chest.  Might be a hundred pounds, might be
200 pounds, whatever it happens to be. 
[¶]  And if you’re exerting a
200-pound force or a 100-pound force to the chest of a two-month-old, you’re
going to crush the chest.  It’s just like
having a hundred-pound person stand on the chest of a two-month-old baby who’s
on the floor[.]  [¶] … [¶]  If you are going to exert a force that is
anywhere near the force required to cause brain injury, you’re going to cause
things like skull fractures.”

Plunkett reviewed Beaver’s autopsy findings and did not
observe any evidence of cerebral contusions or impact.

            Based on
his assessment of the medical file, Plunkett opined that shaking did not
contribute to Kiera’s injuries.  He
identified other possible causes, including superficial cortical vein
thrombosis, spontaneous subdural bleeding, central sleep apnea, or late onset
vitamin K deficiency.href="#_ftn6"
name="_ftnref6" title="">^[6]  Plunkett concluded, “I think the cause of
death … is something equivalent to a closed head injury ….  [¶] … [¶] 
In terms of manner of death, I would list it as being undetermined.  I can’t tell.”

Arrellano testified that defendant
loved and cared for Kiera.  On one
occasion, Kiera stopped breathing following a bath.  Arrellano “smacked [Kiera’s] back” and the
child “caught her breath.” Arrellano denied telling law enforcement on May 9,
2010, that defendant assaulted her.

Angelica Luevano, defendant’s
sister, testified that defendant was an affectionate father.  Elizabeth Luevano, defendant’s aunt,
testified that defendant and Kiera were happy.

>III.            
Prosecution
rebuttal

Christopher Wong, a deputy with the
Kern County Sheriff’s Office, testified that he was dispatched to defendant’s
residence on May 9, 2010, in response to a domestic violence call.  At the scene, Arrellano, who was pregnant,
told Wong that defendant “grabbed a folding chair or table and struck her once
in the head and also once in the left arm” and “grabbed her by her hair and
shoved her face into a couch.”  Wong did
not observe any visible injuries.

DISCUSSION

I.                  
The trial
court properly instructed the jury on the prosecution’s burden of proving guilt
beyond a reasonable doubt.

>a.                 
>Background

After close of evidence, the trial court read the
following instructions to the jury:

            “CALCRIM
[No.] 220.  The fact that a criminal
charge has been filed against the defendant is not evidence that the charge is
true.  You must not be biased against the
defendant just because he has been arrested, charged with a crime or brought to
trial.

            “A
defendant in a criminal case is presumed to be innocent.  This presumption requires that the People
prove a defendant guilty beyond a reasonable doubt.  Whenever I tell you the People must prove
something, I mean they must prove it beyond a reasonable doubt.

            “Proof
beyond a reasonable doubt is proof that … leaves you with an abiding conviction
that the charge is true.  The evidence
need not eliminate all possible doubt, because everything in life is open to
some possible or imaginary doubt.

            “In
deciding whether the People have proved their case beyond a reasonable doubt,
you must impartially compare and consider all of the evidence that was received
throughout the entire trial.

            “Unless
the evidence proves the defendant guilty beyond a reasonable doubt, he is
entitled to an acquittal and you must find him not guilty.”

            “CALCRIM
[No.] 332.  Witnesses were allowed to testify
as experts and to give opinions.  You
must consider the opinions but you are not required to accept them as true or
correct.  The meaning and importance of
any opinion are for you to decide.  In
evaluating the believability of an expert witness, follow the instructions
about the believability of witnesses generally, which I just gave you.^[href="#_ftn7" name="_ftnref7" title="">^[7]]

                “In
addition, consider the expert’s knowledge, skill, experience, training and
education, the reason the expert gave for any opinion and the facts or
information on which the expert relied in reaching that opinion.

            “You
must decide whether the information on which the expert relied was true and
accurate.  You may disregard any opinion
that you find unbelievable, unreasonable or unsupported by the evidence.  [¶] … [¶]

            “If the
expert witnesses disagree with one another, you should weigh each opinion
against the others.  You should examine
the reasons given for each opinion and the facts or other matters on which the
witnesses relied.  You may also compare
the expert’s qualifications.”

>b.                 
>Analysis

            “California
law imposes a duty on the trial court to instruct the jury in a criminal case
on the presumption of innocence in favor of the defendant and the prosecution’s
burden of proving guilt beyond reasonable doubt.”  (People
v. Aranda (2012) 55 Cal.4th 342, 352 (Aranda);
see People v. Runnion (1994) 30
Cal.App.4th 852, 855, quoting In re
Winship (1970) 397 U.S. 358, 364 [“Due process ‘protects the accused
against conviction except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged.’”].)  “The prosecution’s burden of proof in a
criminal case is controlled by section 1096 of the Penal Code” (>Aranda, supra, at p. 353, fn. omitted), which states:

            “A
defendant in a criminal action is presumed to be innocent until the contrary is
proved, and in case of a reasonable doubt whether his or her guilt is
satisfactorily shown, he or she is entitled to an acquittal, but the effect of
this presumption is only to place upon the state the burden of proving him or
her guilty beyond a reasonable doubt. 
Reasonable doubt is defined as follows: 
‘It is not a mere possible doubt; because everything relating to human
affairs is open to some possible or imaginary doubt.  It is that state of the case, which, after
the entire comparison and consideration of all the evidence, leaves the minds
of jurors in that condition that they cannot say they feel an abiding
conviction of the truth of the charge.’” 
(§ 1096.)

“In charging a jury, the court may read to the jury Section
1096, and no further instruction on the subject of the presumption of innocence
or defining reasonable doubt need be given.” 
(§ 1096a.)

In the instant case, the trial
court read CALCRIM No. 220 verbatim. 
“[T]he substance of [section 1096] has … been incorporated into the
standard reasonable doubt instructions, CALJIC No. 2.90 and CALCRIM No.
220.  Tracking the language of section
1096, the standard instructions describe the presumption of innocence and the
requirement of proof beyond a reasonable doubt, and provide the legislatively
approved definition of reasonable doubt. 
A court satisfies its statutory obligation to instruct on these
principles by giving CALJIC No. 2.90 or CALCRIM No. 220.”  (Aranda,
supra, 55 Cal.4th at p. 353, fn.
omitted.)  “With respect to the
principles that a defendant is accorded the presumption of innocence and the
prosecution bears the burden of proving guilt beyond a reasonable doubt,
instruction with CALJIC No. 290 or CALCRIM No. 220 also satisfies the
long-established rule requiring sua sponte instruction on ‘those principles
closely and openly connected with the facts before the court, and … necessary
for the jury’s understanding of the case.’ 
[Citation.]”  (>Id. at p. 354.)  Thus, in view of Aranda, we conclude the court fulfilled its statutory duty to
instruct the jury on the prosecution’s burden of proving guilt beyond a
reasonable doubt.

Defendant claims the court was
required to sua sponte “modify CALCRIM No. 220 to inform the jury that the
phrase ‘to a reasonable medical certainty[’] was not the same as [‘]beyond a
reasonable doubt’” because “the jury likely believed … [‘to a] reasonable
medical certainty[’] equaled [‘]beyond a reasonable doubt[’]” and, “[w]ithout
this clarification, the jury could not understand the import of Dr. Hyden’s
opinion on the ultimate issue in this case.” 
We cannot countenance this assertion. 
“Generally, a party may not complain on appeal that an instruction
correct in law and responsive to the evidence was too general or incomplete
unless the party has requested appropriate clarifying or amplifying
language.”  (People v. Andrews (1989) 49 Cal.3d 200, 218; see >People v. Lawrence (2009) 177
Cal.App.4th 547, 553-554, fn. 11 [distinguishing between claim that challenged
instructions not “‘correct in law’” and claim that such instructions were
“merely incomplete”].)  Defendant admits
he did not request clarification or amplification of CALCRIM No. 220
below.  As a result, he forfeited the
issue.href="#_ftn8" name="_ftnref8" title="">^[8]

II.               
The trial
court erroneously determined that defendant was statutorily ineligible for
probation.

>a.                 
>Background

In a report dated July 31, 2012, the probation officer
identified defendant’s “limited record of prior criminal conduct” as a
circumstance in mitigation and Kiera’s vulnerability “in that she was only two
months of age” as a circumstance in aggravation.  He further detailed:

            “Probation
Eligibility:  [¶]  The defendant is statutorily ineligible for a
grant of felony probation, except in unusual circumstances, pursuant to [section]
1203[, subdivision ](e)(3), in that the defendant inflicted injury on the
victim resulting in death.  Upon review
of [California] Rule[s] of Court[, rule] 4.413, this case will not be
cited as unusual.

            “Probation
Suitability:  [¶]  The defendant is considered unsuitable for a
grant of felony probation.  In the
instant matter, the defendant violently shook the two-month-old infant allowing
the head to snap back and forth thereby causing catastrophic brain injury
resulting in the death of the infant.  Common
sense would inform the average person that to allow an infant’s head to snap
back and forth would be extremely dangerous to the infant and could cause
significant injury.  Given the above and
the tragic results of the defendant’s action, a grant of probation would be
inappropriate and would significantly depreciate the seriousness of the crime.

            “Sentencing
Justification:  [¶]  As Count Two, [section] 273ab carries
the greater term of imprisonment, it will be the principal term in this
case.  [¶] … [¶]

            “It is
respectfully recommended that probation be denied and the defendant be
sentenced to the Department of Corrections for the term prescribed by law of 25
years to Life.”

Defendant filed a statement in mitigation on August 8, 2012,
challenging the finding that he was statutorily ineligible for probation.

On August 14, 2012, the trial
court, after considering the probation officer’s report and defendant’s
statement in mitigation, concluded:

            “[Defendant]’s
ineligible for a grant of felony probation except in unusual circumstances,
pursuant to [section] 1203[, subdivision ](e)(3) of the Penal
Code.  [¶]  However, upon review of [California] Rule[s]
of Court[, rule] 4.413, this case will not be cited as unusual.

“[D]efendant is considered unsuitable for a grant of
felony probation, because in the instant matter the defendant violently shook a
two-month-old infant, allowing the head to snap back and forth causing
catastrophic brain injury, resulting in death to the infant.

            “It
seems that the average person would know that allowing the infant’s head to
snap back and forth would be extremely dangerous to the infant and could cause
significant injuries, obviously, cause[d] significant tragic results in this
case, and a grant of probation would be inappropriate, would significantly
depreciate the seriousness of the crime. 
[¶] … [¶]

            “As a
result the Court sentences defendant as follows:  As to Count 2, a violation of Penal Code
Section 273ab, probation will be denied, and the defendant will be sentenced to
the Department of Corrections for the term prescribed by law of 25 years to life.”

>b.                 
>Analysis

“Probation is generally reserved
for convicted criminals whose conditional release into society poses minimal
risk to public safety and promotes rehabilitation.”  (People
v. Welch (1993) 5 Cal.4th 228, 233.) 
“All defendants are eligible for probation, in the discretion of the
sentencing court, unless a statute provides otherwise.”  (People
v. Bruce G. (2002) 97 Cal.App.4th 1233, 1247.)  Probation is “absolutely unavailable as a
sentencing choice in many serious felony cases and presumptively unavailable in
others unless ‘unusual’ circumstances are present and the ‘interests of
justice’ are best served thereby.”  (>People v. Welch, supra, at p. 233.)

“A defendant is presumptively
ineligible for probation under section 1203, subdivision (e)(3), if he or
she ‘willfully inflicted great bodily
injury or torture in the perpetration of the crime [of which he or she has been
convicted].’”  (People v. Lewis (2004) 120 Cal.App.4th 837, 852, italics added; see
People v. Aubrey (1998) 65
Cal.App.4th 279, 282.)  “The word
‘willfully’ as generally used in the law is a synonym for ‘intentionally,’
i.e., the defendant intended to do the act proscribed by the penal
statute.  Section 1203, subdivision
(e)(3), so read requires the defendant intentionally
inflicted great bodily injury or torture in the commission of the crime.”  (People
v. Lewis, supra, at p. 852.)

We find the trial court erroneously
determined that defendant was ineligible for probation on the basis of section
1203, subdivision (e)(3).  In the instant
case, the jury acquitted him of second degree murder.  In other words, it could not find that
defendant either “‘manifested a deliberate intention to take away the life of a
fellow creature’” (People v. Knoller (2007)
41 Cal.4th 139, 151) or “acted with conscious disregard of the danger to human
life” (id. at p. 156).  Instead, he was convicted of offenses whose
mens rea do not trigger the statute’s presumption of ineligibility:  (1) involuntary manslaughter (see >People v. Brito (1991) 232 Cal.App.3d
316, 321, fn. 4 [“An essential distinction between second degree murder based
on implied malice and involuntary manslaughter based on criminal negligence, is
that in the former the defendant subjectively realized the risk to human life
created by his conduct, whereas in the latter the defendant’s conduct
objectively endangered life, but he did not subjectively realize the risk.”]);
and (2) assault resulting in the death of a child under eight years of age (see
People v. Wyatt (2010) 48 Cal.4th
776, 781 [“[A] defendant may be guilty of an assault within the meaning of
section 273ab if he acts with awareness of facts that would lead a reasonable
person to realize that great bodily injury would directly, naturally, and
probably result from his act.  [Citation.]  The defendant, however, need not know or be
subjectively aware that his act is capable of causing great bodily injury.  [Citation.] 
This means the requisite mens rea may be found even when the defendant
honestly believes his act is not likely to result in such injury.”]).

            The
Attorney General concedes the trial court erroneously declared defendant
statutorily ineligible for probation, but nevertheless argues that remand for
resentencing is unnecessary.  We
disagree.  “[W]hen … the sentencing court
bases its determination to deny probation in significant part upon an erroneous
impression of the defendant’s legal
status, fundamental fairness requires that the defendant be afforded a new
hearing and ‘an informed, intelligent and just decision’ on the basis of the
facts.”  (People v. Ruiz (1975) 14 Cal.3d 163, 168; cf. People v. Alvarez (2002) 95 Cal.App.4th 403, 407, 409; >People v. Manriquez (1991) 235
Cal.App.3d 1614, 1620.)  Therefore, we
remand the matter for resentencing.

DISPOSITION

The trial court’s determination
that defendant was not eligible for probation is set aside and the matter is
remanded for resentencing.  In all other
respects, the judgment is affirmed.

 

                                                                                                __________________________

Kane, J.

WE CONCUR:

 

 

__________________________

Hill, P.J.

 

 

__________________________

Gomes, J.