Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF027135 Albert J. Wojcik, Judge.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Pamela Ratner Sobeck and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
Defendant Christie Lee Pouder was found guilty of savagely beating Shelby Fonda, hitting her in the head with a rock, and then biting her nose, causing a permanent scar.
Defendant was found guilty of mayhem (Pen. Code, § 203; count 1) and assault with a deadly weapon or by means of force causing great bodily injury (§ 245, subd. (a)(1); count 2). The special allegation that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)) on count 2 was found true by the jury. Defendant was sentenced to five years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant now claims as follows:
1. The trial court violated her Fifth and Sixth Amendment rights to present a defense by excluding evidence of the victim’s character when she is drunk.
2. The trial court abused its discretion and violated her Fifth and Sixth Amendment rights when it permitted two photographs of the victim taken immediately following the crime that showed her face covered in blood.
3. Her conviction for assault with a deadly weapon and by means of force likely to cause great bodily injury should be reversed as it is a lesser included offense of mayhem.
4. The great bodily injury enhancement on count 2 should have been stayed.
5. The trial court abused its discretion when it denied her probation.
I
FACTUAL BACKGROUND
A. People’s Case-in-chief
Shelby Fonda was 19 years old at the time of trial. When she was 18 years old, in December 2008, she lived with her mother and brother in Canyon Lake. Shelby met defendant and Adam Davenport through other friends on her Internet MySpace site. In November 2008, Shelby met up with defendant and Davenport in a trailer in Hemet. They all three engaged in sexual relations.
On December 6, 2008, Shelby was picked up by Davenport near a bus station. She was drinking alcohol (she thought it was rum) from a bottle. She thought she had about three to four shots. They d picked defendant up at the Hemet trailer and went to a nearby concert. Shelby drank at the location; possibly two shots. She did not feel drunk. She observed defendant also drink from the bottle on their way back to the trailer from the concert. Shelby fell asleep in the trailer while watching a movie, despite the fact she had a midnight curfew.
Shelby told police that night that she took two more shots of rum before she fell asleep.
Shelby woke up at 1:00 a.m. She woke up Davenport and defendant to ask to use their telephone. Davenport told Shelby to “shut the fuck up” and go back to sleep. Defendant also told her to just go to sleep. Shelby used their telephone and called her mother, Teri Fonda. Defendant and Davenport agreed that they would drive Shelby to meet her mother. Defendant was very angry that they had to drop off Shelby. She kept telling Shelby that she was stupid and that she should just go back to sleep.
Before they left, defendant put on her boots and clothes. Defendant drove, Davenport was in the passenger seat, and Shelby was in the back seat. Defendant yelled at Shelby in the car because she was mad she had to drive her. Shelby responded that she did not care because they had perviously agreed to take her home before her curfew.
Defendant stopped the car near an open field at the intersection of Gilbert and Latham streets in Hemet. Defendant opened the back door and pulled Shelby by her hair out of the car onto the sidewalk. Defendant got on top of her and hit her in the face and head. Shelby fought back by trying to push defendant off of her. Defendant was cussing at Shelby. Davenport stood behind defendant “egging her on” by yelling that she should “beat” Shelby’s “ass.” They continued to struggle, and the altercation moved onto the grass. At one point, defendant picked up a sharp rock and hit Shelby in the head with it. Shelby lost consciousness.
Shelby came to when she felt a sharp pain on her nose. Defendant was holding her hair and biting her nose. Defendant clenched onto her nose and would not let go. The pain made Shelby snap back, and she was able to get free. Shelby then just lay on the ground in pain. Defendant got up and started kicking her but finally left.
Shelby was screaming throughout the altercation. At one point, someone came out of a nearby house and yelled something about calling 911. Shelby responded, “Yes, someone help me.” A nearby resident had heard a girl yelling for help and called the police. Shelby stayed on the ground in pain until the police arrived.
Shelby was in a lot of pain at the hospital. Shelby estimated she received 11 to 13 stitches on her nose. She still had a one and one-half inch scar. She also had a scar on her scalp. She wanted to see a cosmetic surgeon, but she could not afford one.
Shelby admitted at the trial that she was yelling obscenities at Davenport and defendant during the drive, although at the preliminary hearing she testified she was sitting quietly in the back seat of the car. Shelby was not intoxicated while riding in the car to meet her mother. Shelby denied that she ever bit defendant. She had no idea why defendant attacked her; the only reason she could think of was that she was prettier than defendant. She also denied that she grabbed the steering wheel while defendant was driving.
Hemet Police Officer Elpidio Ybarra was dispatched to a field at 2:35 a.m. When Officer Ybarra arrived on the scene, he found Shelby sitting on the ground alone. She was upset and crying. There was no one else around. Shelby was bleeding from the top of her head and from her nose. Officer Ybarra took photographs of Shelby at the scene. Shelby had a cut on the top of her head.
Shelby appeared somewhat intoxicated. She had blood on her arms and bruises. She had dirt and grass on her clothing. She had blood covering her face and a cut on her nose. Officer Ybarra looked in the field but did not see any rocks with blood on them. He did find blood in the field. Officer Ybarra also took photographs of Shelby’s injuries at the hospital after she was cleaned up by the nurse.
Dr. Bruce Bullias was an emergency room doctor. In December 2008, he was working for the Hemet Valley Medical Center and saw Shelby at approximately 4:00 a.m. Shelby had a one-inch laceration on her scalp, a laceration on her lip, and scrapes all over her body. Dr. Bullias put four or five staples in the laceration on her scalp. It was consistent with being cut with a sharp rock. The laceration on Shelby’s nose was about one and one-quarter inch in length and was very irregular and jagged. It required approximately 11 stitches. Shelby also likely suffered from a concussion because she reported that she lost consciousness at the time she was attacked. She was given a referral to a plastic surgeon. The suturing to the nose was difficult due to the nature of the injury. Shelby had no fractures either on her head or nose.
Defendant was detained on December 15, 2008. Steel-toed boots were found in the trunk of her car. There was what appeared to be blood on the toe of one of the boots, but it was never tested. Defendant had marks on her foot. She also had a bruise on her upper thigh and upper arm and a mark on her finger.
B. Defense
Teri Fonda, Shelby’s mother, smelled alcohol on Shelby when she met her at the hospital.
On March 26, 2009, defendant went to the emergency room complaining of pain and numbness in her right index finger. She claimed she had sustained the injury approximately three months prior due to a human bite. It was not broken, and there was no redness or swelling.
Defendant testified on her own behalf. At the concert, she observed Shelby taking drinks from a large bottle of alcohol. Shelby became belligerent, obnoxious, and was stumbling around.
Davenport and defendant went back to her trailer; Shelby was not with them. When they arrived back at the trailer, Shelby was there, asleep on the couch. About 1:30 a.m., Shelby woke them up. They tried to get her just to go back to sleep. Shelby was cussing and appeared to still be affected by alcohol.
Defendant put on her slippers to take Shelby to meet her mom. As they were driving, Shelby complained about the music. She started telling Davenport, “F you, ” and calling defendant a bitch. At one point, Shelby reached over the back seat and tried to grab the steering wheel. Defendant stopped the car and told Shelby to get out. Shelby refused to get out of the car. Shelby hit Davenport and continued cussing.
Defendant got out and opened Shelby’s door. Shelby immediately rushed at defendant swinging her arms. Defendant grabbed Shelby’s hair and wrestled her down to the ground. They wrestled in the field. Each time defendant tried to get up to leave, Shelby would run after her and hit her and grab her. Davenport was still in the car. While they were struggling, Shelby bit defendant’s finger. Defendant felt a lot of pain. Defendant had no choice but to bite Shelby’s nose in order to get free. At this point, a neighbor came running down the street. Defendant grabbed Shelby’s purse and threw it at her. Davenport and defendant then drove off.
Defendant’s finger was swollen. Defendant admitted to the police who interviewed her after the incident that she pulled Shelby from the car by her hair, bit Shelby’s nose, and threw a dirt clod at her. Defendant received antibiotics and pain medication for her finger the night she was arrested. Defendant surmised that Shelby got cut on her scalp by rocks that were on the ground while they were wrestling.
Defendant claimed that Shelby’s face was not covered with blood when she left; she only had a bloody nose. Shelby claimed the bruises she had suffered and scrapes on her foot were caused by the altercation. Defendant denied that she was jealous of Shelby.
II
CHARACTER EVIDENCE PURSUANT TO EVIDENCE CODE SECTION 1103
Defendant contends the trial court erred by refusing to introduce testimony that after the instant altercation Shelby had showed up at her mother’s house intoxicated and was cussing and being belligerent with her.
A. Additional Factual Background
At the hearing on the motions in limine, the People sought to exclude an incident involving Shelby and Teri. It was the People’s understanding that after the crime in this case, Shelby had gotten into an argument with Teri and that she may have pushed or hit Teri. Police were called to the house, but no arrests were made. The People contended the evidence was not relevant and that it was highly prejudicial under Evidence Code section 352.
Defense counsel asked for an Evidence Code section 402 hearing, which the trial court granted. The trial court noted that it was interested in whether the incident involved the use of violence.
Teri testified outside the presence of the jury. She initially denied that any type of altercation occurred between her and Shelby after the crimes in the instant case. She then testified that about one year prior to trial, Shelby was pounding on her door trying to get in the house, and Teri called the police. Shelby was intoxicated. Teri did not want Shelby in her house when she was intoxicated. Shelby was yelling at Teri, cussing at her and calling her vulgar names, such as “cunt, ” “bitch, ” and “stupid.” Teri finally opened the door when the police arrived. Shelby never hit or pushed her that night.
After her testimony, defendant argued that the incident should be allowed into evidence because it showed Shelby’s conduct when she drinks. The People argued it could only come in if there had been acts of violence to support the self-defense claim, but the testimony showed there was no violence.
The trial court noted that if there was a self-defense claim, acts of violence by Shelby would be relevant to that claim. The trial court noted: “It’s a long stretch, I think, that one is cussing and acting up and pounding on doors when under the influence to a self-defense defense. I just don’t see how it’s relevant and material. So evidence about that incident is not going to be allowed. It just is not relevant and material. [¶] If we had evidence that she started pushing her mother or stuck the mother, it would be admissible. And I think that the probative value would probably not be outweighed by any prejudice to that witness. But... it’s just too much of a stretch. Too much of a stretch. [¶] The probative value is quite minimal, that she was drunk, pounded on the door and cussed her mother out.” When defendant countered that Shelby pounded on the door so much that Teri called the police, the trial court felt that Teri “overreacted” and that the evidence was just not relevant.
Defendant again asked the court how the evidence was not relevant when in the crimes charged, Shelby got drunk and yelled obscenities. This was the same action. The trial court responded: “Did she hit her mother a couple months later? If she did, hey, it’s relevant, it’s material.” Defendant argued that she would have if Teri had opened the door.
The trial court reiterated: “Well, I’ve made my ruling. But the old saying, sticks and stones. It is just not relevant because I don’t equate that to an act of violence rising to the level of allowing somebody to exercise self-defense. She could have cussed your client out, could have called her every bad name that one could imagine, could have been screaming at her and hollering at her. Does not justify your client using violence against her[?] If, in fact, there [are] acts of violence perpetrated by the alleged victim, completely different story. And I haven’t heard it.”
B. Analysis
Evidence Code section 210 defines relevant evidence: “‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”
Evidence Code section 1103 provides, in pertinent part: “(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by [Evidence Code] Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.” (See also People v. Myers (2007) 148 Cal.App.4th 546, 552.) In general, a defendant in a prosecution for a homicide or an assaultive crime who has raised self-defense is authorized under Evidence Code section 1103 to present evidence of the violent character of the victim via the victim’s subsequent acts of violence, as well as prior acts of violence, to show the victim was the aggressor. (People v. Shoemaker (1982) 135 Cal.App.3d 442, 446-448.)
Evidence Code section 1103 evidence is subject to exclusion under Evidence Code section 352. “Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124; see also People v. Hillhouse (2002) 27 Cal.4th 469, 496.) A determination under Evidence Code section 352 will not be overturned except upon a finding the trial court exercised its discretion “‘in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues, supra, at pp. 1124-1125.) Evidence is substantially more prejudicial than probative if it “poses an intolerable ‘risk to the fairness of the proceedings or the reliability of the outcome’” (People v. Waidla (2000) 22 Cal.4th 690, 724) and “uniquely tends to evoke an emotional bias against the defendant” without regard to relevance (People v. Killebrew (2002) 103 Cal.App.4th 644, 650).
Here, the evidence was properly found not to be relevant by the trial court. It is clear that when self-defense is raised, evidence of the victim’s aggressive and violent behavior is generally admissible to show the victim was more likely the aggressor. (People v. Wright (1985) 39 Cal.3d 576, 587.) There was absolutely no evidence that Shelby acted violently toward Teri during the incident following the instant crimes and was not relevant to support defendant’s self-defense claim.
Defendant now claims on appeal that the evidence was admissible to show generally Shelby’s character when she was drunk. She claims this would have bolstered her credibility and version of the events that night. While this may have been marginally relevant to why defendant pulled Shelby from the car, it does not show why she violently hit Shelby over the head with a rock and bit her nose. The only possible defense that defendant had was that she acted in self-defense. No matter how defendant characterizes the evidence she sought to admit, the fact of the matter is that the only relevant evidence is that which involved acts of violence by Shelby. That she was a belligerent drunk was not relevant to explain why defendant brutally injured Shelby. The evidence simply had no relevance to defendant’s defense.
Moreover, even if the trial court erred, any error in failing to introduce the challenged evidence was clearly harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; Cal. Const., art. VI, § 13.)
Defendant contends her due process rights were violated and the error here must be evaluated under the federal constitutional standard of Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705]. We disagree, as generally “violations of state evidentiary rules do not rise to the level of federal constitutional error.” (People v. Benavides (2005) 35 Cal.4th 69, 91.) Defendant has not shown that her federal constitutional rights were violated.
Here, the evidence was substantial that defendant was the aggressor and brutally attacked Shelby. Although defendant claims the evidence Shelby was a belligerent drunk was relevant to her claim that this was an act of mutual combat, even with such evidence, the jury would not reasonably conclude that Shelby was the initial aggressor. Based on the injuries alone, the jury could reject that this was an act of mutual combat. Shelby had a gash on her forehead, a slit on her nose, and was covered in blood. Defendant claimed she was bit on the finger but had no real injuries. Further, as noted by the People in closing argument, if this was an act of mutual combat, why did Davenport fail to intervene while his girlfriend was in a fight? That Shelby may have been a belligerent drunk does not negate the evidence that defendant, accompanied by Davenport, seriously injured Shelby and left her at the location with two gashes on her forehead and covered in blood. We cannot conclude that the exclusion of the evidence of Shelby’s actions at her mother’s house after the incident was relevant to the instant case or that its exclusion somehow impacted the verdict.
III
GRUESOME PHOTOGRAPHS
Defendant complains the trial court erred by admitting two photographs taken of Shelby immediately following the incident showing her bloody face.
A. Additional Factual Background
Prior to trial, defendant sought to exclude People’s exhibits 14 and 15 as too prejudicial. People’s exhibit 14 is a photograph of Shelby’s upper torso and face. She has blood on her entire face and on her hair. People’s exhibit 15 is a close-up photograph of her nose with the hook slit and blood covering her entire face.
The People argued that the photographs were an accurate and true representation of how Shelby looked when the officer arrived at the scene. Other photographs that would be admitted showed her wounds with the blood cleaned off. The People argued that the photographs were highly probative and relevant to how Shelby looked at the scene and that defendant left her at the location covered in blood.
Defendant argued they should be excluded as there were other photographs of the injuries with blood on them, but not covering her entire face. Further, “[t]he fact that the defendant left the complaining witness at the scene with a neighbor is irrelevant as to the prejudicial effect of those photos of blood being all over her face.... I think the People have enough to show the actual size of the wound and all its characteristics.”
The trial court ruled: “I’m going to let them in. I don’t think they are overly gross or overly prejudicial. The jury has been forewarned that certain strong photographs would be admissible.... [¶] I know these wrestlers, when you get these wrestlers in the ring, I know they have a gimmick where they have a little razor, and they just cut their forehead a little bit and get blood oozing down. Okay? And that’s to depict there’s been an injury in that wrestling match, a fake injury, nonetheless. And I don’t think that’s overly graphic. [¶]... You get a bad bloody nose, and although the blood would not be in these areas, but from the nose down, yeah.... I think the probative value of these two photographs is not outweighed, substantially outweighed by the probability that they would create any danger of undue influence, or would prejudice the jury against the defendant. I don’t see where the evidence would uniquely tend to evoke any emotional bias against the defendant. There’s certain photographs in the past I have excluded in certain kind of cases. I don’t think these fall in that category.”
B. Analysis
Photographs are admissible if they are relevant and their probative value outweighs the probability that their admission creates a substantial danger of undue prejudice. (People v. Heard (2003) 31 Cal.4th 946, 972-973.) Photographs of a crime scene are relevant to show that a crime was committed and to corroborate or illustrate witness testimony about the crime. (People v. Scheid (1997) 16 Cal.4th 1, 15, 18; see also People v. Michaels (2002) 28 Cal.4th 486, 532 [“[a]lthough photographic evidence is often cumulative of testimonial evidence, that fact does not require its exclusion, ‘[b]ecause the photographic evidence could assist the jury in understanding and evaluating the testimony’”].)
Even relevant evidence should be excluded under Evidence Code section 352, however, if the potential for prejudice outweighs probative value. “‘The admission of photographs of a victim lies within the broad discretion of the trial court when a claim is made that they are unduly gruesome or inflammatory. [Citations.] The court’s exercise of that discretion will not be disturbed on appeal unless the probative value of the photographs clearly is outweighed by their prejudicial effect. [Citations.]’ [Citation.]” (People v. Scheid, supra, 16 Cal.4th at p. 18; People v. Crittenden (1994) 9 Cal.4th 83, 133-134, called into doubt on other grounds in People v. Manzo (2011) 192 Cal.App.4th 366; Evid. Code, § 352.)
Here, the way that Shelby looked when the officer first arrived at the scene was relevant to both negate that the instant crime was committed in self-defense and to show her injuries. These were the only two photographs showing her at the scene. Although other photographs were admitted that showed Shelby at the hospital, and although Shelby showed her scar to the jury, that did not foreclose the People from seeking to admit an accurate depiction of Shelby at the scene of the crime. Additionally, the photographs corroborated Officer Ybarra’s testimony as to Shelby’s condition at the scene.
Further, we have reviewed the photographs and they are not overly gruesome or inappropriate so as to render them overly prejudicial. They do not show gaping wounds and are not unnecessarily gory.
Moreover, even if the trial court erred by admitting the photographs, we conclude it is not reasonably probable admission of the photographs affected the jury’s verdict. (People v. Scheid, supra, 16 Cal.4th at p. 21.) The photographs here did not present evidence that was not already before the jury. As noted, ante, there were only two photographs, and they were not particularly gruesome. Moreover, the evidence of defendant’s guilt was overwhelming. Defendant’s only defense was that she acted in self-defense. However, she had little or no injuries, while Shelby had two large gashes on her nose and one her head and was left stranded in an open field. Defendant was accompanied by Davenport, who either remained in the car during the incident or egged on defendant. Even given the evidence that Shelby was drunk and belligerent, the results would have been the same. We conclude that any error was harmless.
IV
LESSER OFFENSE OF ASSAULT WITH A DEADLY WEAPON AND MEANS OF FORCE LIKELY TO CAUSE GREAT BODILY INJURY TO MAYHEM
Defendant contends she could not be convicted of both mayhem and assault with a deadly weapon or by means of force likely to cause great bodily injury because an assault is necessarily included in mayhem where the assault is a continuing event and the mayhem results during the course of the assault.
A single act or course of conduct can lead to multiple convictions. (§ 954; People v. Sloan (2007) 42 Cal.4th 110, 116.) However, a defendant cannot be convicted of both a greater and lesser included offense. (People v. Montoya (2004) 33 Cal.4th 1031, 1034.) “[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.” (People v. Lopez (1998) 19 Cal.4th 282, 288.) The elements test is properly considered in deciding whether multiple charged convictions resulting from a single course of conduct is proper. (People v. Reed (2006) 38 Cal.4th 1224, 1229-1230.)
Mayhem includes three elements: “(1) an unlawful act by means of physical force; (2) resulting in an injury which ‘deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip...;’ and (3) done ‘maliciously, ’ defined as ‘an unlawful intent to vex, annoy, or injure another person.’ [Citations.]” (People v. Ausbie (2004) 123 Cal.App.4th 855, 861, disapproved of on other grounds in People v. Reed, supra, 38 Cal.4th 1224.) “‘To prove a violation of Penal Code section 245, subdivision (a), the prosecution must establish that a person was assaulted and that the assault was committed by the use of a deadly weapon or instrument or by means of force likely to produce great bodily injury. Assault with a deadly weapon is a general criminal intent crime [citation] and requires proof only of an attempt to commit a violent injury upon the person of another. It does not require proof that an injury occurred. [Citation.]...’” (People v. Griggs (1989) 216 Cal.App.3d 734, 739-740.)
In People v. Quintero (2006) 135 Cal.App.4th 1152, Division One of this appellate district concluded, applying the elements test, that assault with a deadly weapon or by means of force likely to cause great bodily injury was not a necessarily lesser included offense of mayhem because the “disfiguring injury or disability may be inflicted without the use of a deadly weapon or by use of force not necessarily likely to cause great bodily injury.” (Id. at p. 1168; see also People v. Ausbie, supra, 123 Cal.App.4th at pp. 860-862.) We see no reason to depart from the reasoning in Quintero and adopt it here. Defendant was properly convicted of both mayhem and assault with a deadly weapon or by means of force likely to cause great bodily injury.
V
SENTENCING ISSUES
Defendant makes two claims in relation to her sentence. First, defendant claims the trial court should not have imposed the great bodily injury enhancement on the assault with a deadly weapon conviction on count 2 because the sentence on the substantive charge was stayed pursuant to section 654. Defendant also contends the trial court abused its discretion by refusing to grant her probation.
A. Stay of Enhancement
The People sought in the trial court that defendant be sentenced to eight years consisting of four years on count 1, plus one year on count 2, plus three years for the great bodily injury enhancement.
At the time of sentencing, the trial court imposed the following sentence: “On Count 1, Penal Code [section] 203, the Court is going to deny probation, impose the low term of two years in state prison. Count 2, the [section] 245[, subdivision] (a)(1) of the Penal Code, it’s not a lesser-included offense, but I think it’s a serious [section] 654 issue. I think what happened in Count 1 would not have occurred without Count 2. [¶] So in Count 2, I’m going to likewise impose the low term of two years in state prison; however, I’m going to stay the term imposed in Count 2. So the defendant is ordered to serve two years in state prison. [¶] The special allegation, the [section] 12022.7[, subdivision] (a) allegation, the great bodily injury allegation, the defendant is ordered to serve the enhancement of three years. The three years shall be served consecutive to the two years imposed in Count 1. The defendant is ordered to serve a term of five years [in] state prison.”
The People agree that defendant could not be sentenced to three additional years for the great bodily injury enhancement on count 2 because the trial court stayed the sentence on count 2. We also agree. (People v. Bracamonte (2003) 106 Cal.App.4th 704, 711 [“‘an enhancement must necessarily be stayed where the sentence on the count to which it is added is required to be stayed [under section 654]’”], disapproved on another ground in People v. Gonzalez (2008) 43 Cal.4th 1118, 1130, fn. 8.) However, the parties disagree as to the appropriate remedy, defendant asking this court to stay the enhancement and the People requesting that we remand the case so that the trial court can impose sentence on the assault in count 2 as the principal term in place of the mayhem conviction.
Section 654, subdivision (a) provides as follows: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” In People v. Kramer (2002) 29 Cal.4th 720, the Supreme Court concluded that the longest potential term of imprisonment includes any enhancements. (Id. at pp. 723-725.)
The potential term of imprisonment for mayhem is two, four, or eight years. (§ 204.) The term of imprisonment for assault with a deadly weapon or by means of force likely to cause great bodily injury is two, three, or four years. (§ 245, subd. (a)(1).) The term of imprisonment for the great bodily injury enhancement is an additional three years. (§ 12022.7, subd. (a).) Hence, the longest potential term of imprisonment is the upper term of eight years for the mayhem conviction, even assuming the upper term on the assault plus the great bodily injury enhancement, which would only result in a sentence of seven years, was imposed.
People v. Palacios (2007) 41 Cal.4th 720 is instructive. In that case, which involved a section 12022.53 enhancement, the court found that since the enhancement statute used the language that the enhancement was to be imposed “‘[n]otwithstanding any other provision of law, ’” the imposition of the enhancement was not subject to section 654. (Palacios, at pp. 727-728, italics omitted.) Section 12022.7 does not have such language. If section 12022.7, when combined with the substantive crime, provides a shorter term of potential imprisonment, it can be stayed under section 654. (See also People v. Eck (1999) 76 Cal.App.4th 759, 763.)
As such, the trial court should have stayed the punishment on the great bodily injury enhancement. By staying the great bodily injury enhancement, defendant’s sentence is greatly reduced. It is unclear whether the trial court would have imposed the same sentence had it been aware that it should have stayed the great bodily injury enhancement as the invalidity of this component “necessarily infects the entire sentence.” (People v. Savala (1983) 147 Cal.App.3d 63, 69, overruled on another ground in People v. Foley (1985) 170 Cal.App.3d 63, 68-69.) When a case is remanded for resentencing, the court is free to increase the base term so long as the new aggregate term does not exceed the original aggregate term. (Savala, at p. 69.) We will reverse defendant’s sentence and remand to the trial court for resentencing.
B. Probation
Defendant additionally contends the trial court erred by refusing to find that hers was the extraordinary case warranting probation.
Defendant’s record in the probation report reflects a burglary offense suffered in August 22, 2006, as a juvenile, and that the petition was subsequently dismissed. In the probation report, the probation department noted: “Although the instant offense appears to be serious when compared to others of the same caliber, to the defendant’s credit she has no prior history of criminal conduct, is youthful, and contends to have been attempting to defend herself against the victim who she reported was drunk, belligerent, and flailing her arms out of control.” The probation department also recognized that defendant was respectful during the interview and that she expressed a willingness to comply with the probation terms. The probation department found that she was suitable for a grant of probation but also suitable for a substantial term of custody.
The People argued at sentencing that the trial court should not follow the probation department’s recommendation for probation. The only mitigating factor was her youth. In aggravation, she had a juvenile adjudication, she committed a serious current offense, and she had shown no remorse. Shelby testified at the sentencing hearing that she remained terrified and emotionally scarred from the incident. She was afraid to go to Hemet for fear she would encounter defendant or her friends.
Defense counsel presented testimony that defendant was pregnant and that she felt bad for what happened. Counsel also argued in mitigation that defendant was young and had no significant criminal history, the crime was a result of provocation by Shelby, it was not a serious mayhem, she was willing to comply with the terms of probation, she was remorseful, and she had not committed any other offenses while out on bail. Defendant made a statement to the trial court and stated that the incident had “probably” been harder on her than Shelby. Defendant was young and just got into a fight. She was scared that she was going to prison and would not know her child.
The trial court ruled: “I’ve heard the statements from numerous people. I’ve read various statements. I presided over the trial. I’m aware of the verdict reached by the jury. I heard today, again, that the defendant was acting in self-defense. The jury was not convinced by that argument. I’ve heard that the defendant is suffering more than the victim. That, I can’t believe. [¶] Some of the comments that I heard were extremely inconsistent with the evidence I heard during the trial and with the verdict of the jury. If I accept some of what I heard today, [Shelby] is guilty; she’s the miscreant, and [defendant] is the victim. That’s not what the jury found. They found quite the opposite. I hear [defendant] is remorseful. And as somebody once said, it’s not so much because you saw the light, but because you felt the heat.” The trial court denied probation, finding that although defendant was youthful and had no criminal background, she had committed a vicious, cruel, and callous crime requiring that Shelby get five staples to the scalp and at least 11 stitches to the nose, Shelby was particularly vulnerable during the attack because she was on the ground unconscious at one point, and defendant’s conduct showed she was a danger to society. Such a denial of probation was not an abuse of the trial court’s discretion.
Section 1203, subdivision (e) prohibits a grant of probation to defendants who have been convicted under certain circumstances “[e]xcept in unusual cases where the interests of justice would best be served if the person is granted probation....” Because defendant caused great bodily injury, she was presumptively ineligible for probation. (§ 1203, subd. (e)(3).)
When a defendant is presumptively ineligible for probation, the trial court is required to use the criteria set forth in California Rules of Court, rule 4.413 to determine whether the presumption is overcome and the interests of justice would be served by a grant of probation. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 830.)
All further references to rules are to the California Rules of Court.
Rule 4.413(c) lists factors for the court to consider in evaluating whether the statutory limitation on probation is overcome: “The following facts may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate: [¶] (1) Facts relating to basis for limitation on probation [¶]... [¶] (A) The fact or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence; and [¶] (B) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense. [¶] (2) Facts limiting defendant’s culpability [¶] A fact or circumstance not amounting to a defense, but reducing the defendant’s culpability for the offense, including: [¶] (A) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence; [¶] (B) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and [¶] (C) The defendant is youthful or aged, and has no significant record of prior criminal offenses.”
A grant or denial of probation is a matter within the discretion of the trial court. (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1225 [Fourth Dist., Div. Two]; People v. Superior Court (Du), supra, 5 Cal.App.4th at p. 831.) The trial court’s discretion in determining whether to grant probation is broad. (People v. Stuart (2007) 156 Cal.App.4th 165, 178-179.)
Defendant contends the trial court should have found this was an unusual case in which the interests of justice would be served by a grant of probation because (1) she committed her crime due to Shelby’s provocation, (2) she was still quite young, and (3) she lacked a significant criminal record.
Defendant also refers to factors in rule 4.414. However, since the court found this was not an unusual case under rule 4.413, we need not apply the criteria in rule 4.414 for granting or denying probation. (People v. Superior Court (Du), supra, 5 Cal.App.4th at p. 830.)
The trial court was well aware of the factors in rule 4.413 and rejected that this was an unusual case. Defendant continues to labor under the misconception that she was convicted of a crime in which she was merely provoked by Shelby and that she was forced to commit the instant offense due to Shelby biting her finger. However, the jury rejected this evidence, and the trial court chastised defendant for making herself the victim in this case.
The trial court additionally denied probation because although defendant was youthful and had no criminal background, she had committed a cruel and callous crime, Shelby was particularly vulnerable during the attack, and defendant’s conduct showed she was a danger to society. Defendant’s case, based on the crime she committed and her personal background and characteristics, did not warrant granting probation.
We cannot find, based on the record before this court, that the trial court abused its discretion by denying probation to defendant.
VI
DISPOSITION
Defendant’s sentence is reversed, and the matter is remanded for resentencing in the informed discretion of the trial court. In all other respects, the judgment is affirmed.
We note that defendant’s surname is incorrectly spelled “Pounder” on the abstract of judgment. We caution the clerk of the court to correct the error when preparing a new abstract of judgment.
We concur: MILLER, J., CODRINGTON, J.