Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino County No. FV1800133, John M. Tomberlin, Judge. Affirmed as to defendant Woods
AARON, J.
I.
INTRODUCTION
A jury found Vanessa Woods and her boyfriend, Riginald Bernard Hardin, Jr., guilty of torture (count 1) (Pen. Code, § 206), child abuse (count 2) (§ 273a, subd. (a)), unlawful driving or taking of a vehicle (count 3) (Veh. Code, § 10851), and receiving stolen property (count 4) (§ 496, subd. (a)). In addition, with respect to count 2, the jury found that Woods and Hardin each personally inflicted great bodily injury on a child under the age of five years old (§ 12022.7, subd. (d)).
Although Hardin's name is spelled "Reginald" in his briefing, the information and verdicts in this case refer to Hardin's first name as "Riginald."
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
The trial court imposed the same sentence as to both defendants. The court sentenced the defendants to an aggregate determinate sentence of 12 years eight months, and to an indeterminate term of life in prison, to be served consecutively to the determinate term. With respect to the determinate term, the court sentenced the defendants to 12 years on count 2, consisting of an upper term of six years on the underlying offense (§ 273a, subd. (a)) and an upper term of six years on the great bodily injury enhancement (§ 12022.7, subd. (d)). In addition, the court sentenced the defendants to eight months on count 3, to be served consecutively to the sentences on count 2, and stayed execution of the sentence on count 4 pursuant to section 654. The court also sentenced each defendant to an indeterminate term of life in prison on count 1.
On appeal, Woods raises several claims of error with respect to her sentence on count 2 (§ 273a, subd. (a)). Woods claims that the trial court erred in failing to stay execution of the sentence pursuant to section 654, in refusing to consider various mitigating factors, and in imposing upper term sentences on both the underlying offense (§ 273a, subd. (a)) and the great bodily injury enhancement (§ 12022.7, subd. (d)). Woods also claims that the court violated her constitutional right to a jury trial by imposing an upper term sentence on the great bodily injury enhancement. We find no reversible error, and therefore affirm the judgment as to Woods.
Hardin claims that the trial court erred in failing to provide a limiting instruction, sua sponte, concerning the jury's consideration of certain domestic violence propensity evidence that the People offered against him at trial. In the alternative, Hardin contends that his defense counsel provided ineffective assistance by failing to request such an instruction. In addition, Hardin claims that the trial court erred in failing to stay execution of the sentence on count 2 (§ 273a, subd. (a)) pursuant to section 654. Finally, Hardin maintains that the trial court erroneously awarded him 439 days of presentence custody credits, rather than the 440 days of presentence custody credits to which he was entitled, and that the abstract of judgment should be modified to clarify that he is to serve the determinate term of imprisonment prior to serving the indeterminate term. We modify the judgment to award Hardin 440 days of presentence custody credits and direct the trial court to modify the abstract of judgment to specify that Hardin is to serve his determinate term of imprisonment prior to his indeterminate term. As so modified, the judgment is affirmed as to Hardin.
II.
FACTUAL AND PROCEDURAL BACKGROUND
We restrict our discussion of the lengthy factual record in this case to the facts that are relevant to an understanding of the errors claimed on appeal.
At trial, the People presented evidence that Hardin and Woods inflicted numerous severe injuries on Woods's 21-month-old daughter, N.M. On January 21, 2008, when N.M. was taken to the hospital, she had second and third degree burns to her anus, vagina, and feet, and deep cuts on her calves. The burns to N.M.'s anus and vagina were contact burns that doctors believed had been inflicted within the previous two to three days. The burns to N.M.'s feet were scald burns caused by a hot liquid. The cuts on N.M.'s calves, and the pattern and severity of the burns on N.M.'s feet, suggested that someone had held N.M.'s feet under a running hot liquid. The burns to N.M.'s feet also appeared to have been inflicted within two or three days of January 21.
Doctors discovered numerous other burns on N.M.'s body, including burns on her chin, arms, and chest. According to Dr. Amy Young-Snodgrass, one of the doctors who treated N.M., the burn on N.M.'s chin was likely "a little bit older" than a few days, one burn on her left arm was potentially several weeks old, and two other burns on her arm were weeks to months old. In addition to the burns, N.M. had suffered severe blunt force trauma throughout her abdomen. The abdominal injuries appeared to have been inflicted within a few days prior to January 21. N.M. also had a subconjunctival hemorrhage in her eye, which suggested that she had suffered blunt force trauma to her head. The blunt force trauma to the head was likely inflicted weeks prior to January 21. N.M. was also extremely underweight and was severely malnourished.
In addition to evidence of the defendants' commission of the offenses against N.M., the People presented evidence, pursuant to Evidence Code section 1109, that Hardin physically and sexually assaulted a former girlfriend. (See pt. III.B.1., post.)
Evidence Code section 1109 provides for the admission of evidence of a defendant's commission of uncharged acts of domestic violence in a case in which a defendant is accused of an offense involving domestic violence.
During closing argument, the prosecutor argued that Hardin and Woods had abused N.M. (count 2) (§ 273a, subd. (a)) by burning her arms, chest, chin, and abdomen, and inflicting blows to her abdomen and face. The prosecutor also argued that Woods and Hardin had caused N.M. to fail to thrive. With respect to count 1 (torture) (§ 206), the prosecutor argued that Hardin and Woods were guilty based on their having burned N.M.'s feet, anus and vagina.
The jury found Woods and Hardin guilty of torture (count 1) (§ 206) and child abuse (count 2) (§ 273a, subd. (a)). With respect to count 2, the jury found that Woods and Hardin each personally inflicted great bodily injury on a child under the age of five years (§ 12022.7, subd. (d)).
At sentencing, Woods's counsel requested that the court take into consideration the fact that Woods had no prior criminal record. Counsel also requested that the court consider that Woods was only 22 years old, that the victim was her first child, and that Woods was "suffering under the hands of Mr. Hardin."
Hardin's counsel argued:
"I would ask that the Court find that Count 2 is [section] 654, that Count 1 is the allegation of torture. [¶] Count 2 is the willful cruelty [child abuse], and I believe that the torture and willful cruelty [child abuse] are one and the same, that they are essentially the same act and same conviction and that they merge into one another, so I would ask the Court to stay the sentence on Count 2 and the enhancements to Count 2 based upon Penal Code section 654."
Woods's counsel joined in Hardin's counsel's argument regarding the applicability of section 654.
The prosecutor opposed the defendants' contention that the trial court should stay execution of their sentences on count 2 pursuant to section 654. The prosecutor argued that count 1 (torture) (§ 206) was premised on the burns to N.M.'s anus, vagina, and feet, while count 2 (child abuse) (§ 273a, subd. (a)) was premised on separate burns to other parts of N.M.'s body, injuries to N.M.'s face, and the injury to N.M.'s abdomen. The prosecutor further argued that the injuries comprising the torture count were "much more acute" than those comprising the child abuse count. As to both defendants, the prosecutor requested that the court impose upper term sentences on both count 2 (child abuse) (§ 273a, subd. (a)) as well as on the related great bodily injury enhancement (§ 12202.7, subd. (d)) based on the nature and severity of N.M.'s injuries, the defendants' callousness in inflicting those injuries, N.M.'s vulnerability, and the defendants' abuse of their position of trust vis-á-vis N.M.
In response, Hardin's counsel argued that if the trial court were to reject his section 654 argument, then the court should impose a midterm sentence on count 2. Hardin's counsel noted that Hardin had only a minimal criminal record prior to his arrest in this case.
The court rejected defense counsels' section 654 argument, and sentenced Woods and Hardin each to an aggregate term of 12 years eight months to life in prison, which included upper term sentences on count 2 on both the underlying offense and the great bodily injury enhancement.
In explaining the reasons for the defendants' sentences, the court stated in part:
"[W]hat's hard to believe in this case is that this child could have been forced to suffer as much as this child was forced to suffer over such a long period of time, both in the custody of Mr. Hardin and Ms. Woods and neither of you did anything to help this child. Neither of you did anything to try to stop this, and the Court is thoroughly convinced that both of you are equally responsible for the damage done to this child, damage which covered the period of months. This Court saw the pictures. This Court saw the medical reports and the condition of how this child steadily deteriorated from the cruelty and the viciousness with which you treated the child.
"The burns, the degree of the burns and location of the burns[, ] is absolutely unfathomable to me how someone can do this. The cigarette burns to the chest, the black eye, the hitting someone in the stomach so hard that it caused internal injury requiring 18 inches of this child's small intestine to be removed, a child under two years old. This Court is certainly going to agree with [the prosecutor], having heard the evidence, the torture, the events involved with the torture, that's one thing, but there were child abuse crimes that were committed separate from the torture.
"There was great bodily injury suffered by this child separate from the torture, and this Court believes that it does support and requires that I sentence consecutive, that is not subject to [section] 654 because there were so many acts, all of which are separate from the torture, that can support the conviction [on count 2] and the great bodily injury finding, and the fact that there was no record of-minimal record on behalf of either Mr. Hardin or Ms. Woods is of no moment as far as I am concerned because of the severity and the longevity of the abuse of this child.
"You had plenty of a chance to do something, and I am really astounded at the resiliency of this child and the fact that the child survives today. It's marvelous, but it's certainly no thanks to either of you.
"If I could sentence you to longer time in custody, I would do so.
"If I could give you a higher restitution fine, I would do so."
The court explained its reasons for selecting the upper term on the underlying offense in count 2 (child abuse) (§ 273a, subd. (a)) as follows: "[The court] [s]elected the aggravated term for both Mr. Hardin and Ms. Woods because of the factors included in the probation report specifically, the age, and the vulnerability of the child and the degree of callousness exhibited by each of the defendants." The court did not expressly state its reasons for imposing the upper term on the great bodily injury enhancement (§ 12022.7, subd. (d)) on count 2.
III.
DISCUSSION
A. Woods's appeal
Woods raises several claims challenging the sentence imposed on count 2 (child abuse) (§ 273a, subd. (a)) and/or the sentence on the related great bodily injury enhancement (§ 12022.7, subd. (d)) on count 2.
1. The trial court did not err in failing to stay execution of the sentence on count 2
Woods claims that the trial court erred in failing to stay execution of the sentence on count 2 (child abuse) (§ 273a, subd. (a)) pursuant to section 654. Woods maintains that the trial court was required to stay execution of the sentence imposed on count 2 in light of the court's imposition of a sentence on count 1 (torture) (§ 206), because both crimes were committed pursuant to a single criminal objective-to cause great bodily injury to N.M.
Although Woods claims that the trial court erred in failing to stay imposition of the sentence on count 2 pursuant to section 654, it is clear that she intends to argue that the trial court erred in failing to stay execution of the sentence on count 2. (See People v. Alford (2010) 180 Cal.App.4th 1463, 1472 ["A trial court must impose sentence on every count but stay execution as necessary to implement section 654"].)
a. Governing law and standard of review
Section 654 provides in relevant part: "(a) 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
Section 654 prohibits multiple punishment where a single criminal act or omission violates more than one penal statute. This statutory prohibition has also been extended to cases in which the defendant engages in an indivisible course of conduct with a single objective, violating several different penal statutes in the process. (See Neal v. State of California (1960) 55 Cal.2d 11, 19.) "If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. [Citation.] If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.]" (People v. Perry (2007) 154 Cal.App.4th 1521, 1525.)
In addition, a defendant may be found to have harbored separate objectives for purposes of section 654, even if the defendant's objective is similar during each criminal offense. (See People v. Massie (1967) 66 Cal.2d 899, 908 ["A defendant may not bootstrap himself into section 654 by claiming that a series of divisible acts, each of which had been committed with a separate identifiable intent and objective, composes an 'indivisible transaction' "]; People v. Britt (2004) 32 Cal.4th 944, 952 ["[C]ases have sometimes found separate objectives when the objectives were... consecutive even if similar"]; accord People v. Surdi (1995) 35 Cal.App.4th 685, 689 [multiple offenses were not subject to § 654 where "they were separated by considerable periods of time during which reflection was possible"].) For example, sentences for robberies that are committed at "different locations, separated by time, " are not subject to section 654. (People v. Akins (1997) 56 Cal.App.4th 331, 340.)
In reviewing a defendant's claim that the court erred in failing to stay a sentence pursuant to section 654, the "defendant's intent and objective present factual questions for the trial court, and its findings will be upheld if supported by substantial evidence." (People v. Andra (2007) 156 Cal.App.4th 638, 640.)
b. Application
The record contains substantial evidence that Woods and Hardin committed numerous acts of child abuse (count 2) at times distinct from the occasions on which the two committed the acts that form the basis of the torture charge (count 1). For example, while the People presented evidence that Woods and Hardin committed all of the acts of torture within two to three days prior to January 21, the trial court could reasonably have found that the defendants inflicted burns on N.M. weeks before that date. The trial court could therefore reasonably have found that Woods and Hardin entertained separate objectives during these different occasions of abuse and torture, even if their objectives were similar on each occasion.
In addition, the acts of abuse constituting the child abuse count were not committed to facilitate the acts of torture (see People v. Perry, supra, 154 Cal.App.4th at p. 1525), and the trial court could have reasonably found that the acts of child abuse and torture "were separated by considerable periods of time during which reflection was possible." (People v. Surdi, supra, 35 Cal.App.4th at p. 689.) Woods's contention that she may not be separately punished for count 2 (child abuse) (§ 273a, subd. (a)) on count 1 (torture) (§ 206), because the acts underlying both count 1 and count 2 were committed in order to cause great bodily injury, is unpersuasive. Even assuming that Woods's objective in inflicting great bodily injury was identical during the commission of count 1 and count 2, she is not entitled to escape punishment for one of these crimes, because Woods had separate objectives in committing counts 1 and 2, for purposes of section 654, even if her objective-to inflict bodily injury-was the same on each occasion. (See People v. Massie, supra, 66 Cal.2d at p. 908; accord People v. Akins, supra, 56 Cal.App.4th at p. 340.)
Accordingly, we reject Woods's contention that she may not be separately punished for acts of child abuse and torture that were undertaken on separate occasions, and thus conclude that the trial court did not err in failing to stay execution of the sentence on count 2 (child abuse) (§ 273a, subd. (a)).
2. The trial court did not refuse to consider the fact that Woods had no criminal record as a mitigating factor at sentencing
Woods claims that the court abused its discretion in refusing to consider the fact that she had no prior criminal record as a mitigating circumstance at sentencing.
a. Governing law and standard of review
"In response to[Cunningham v. California (2007) 549 U.S. 270, (Cunningham)] , the Legislature amended the [Determinate Sentencing Law (DSL)] effective March 30, 2007. [Citations.] Because of these amendments, trial courts now have the discretion under section 1170, subdivision (b), to select among the lower, middle, and upper terms specified by statute without stating ultimate facts deemed to be aggravating or mitigating under the circumstances and without weighing aggravating and mitigating circumstances. [Citation.]" (People v. Jones (2009) 178 Cal.App.4th 853, 866.)
In Cunningham, supra, 549 U.S. at page 274, the United States Supreme Court held that former section 1170 violates a defendant's Sixth Amendment right to a jury trial insofar as it allowed the trial court to impose an upper term sentence based upon facts not found by a jury.
"Even with the broad discretion afforded a trial court under the amended sentencing scheme, its sentencing decision will be subject to review for abuse of discretion. [Citations.] The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.' [Citation.]... A failure to exercise discretion also may constitute an abuse of discretion. [Citations.]" (People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval).)
b. Application
In support of her contention that the trial court abused its discretion by refusing to consider that she had no prior criminal record, Woods notes that the trial court stated at sentencing, "[T]he fact that there was no [criminal] record of... Ms. Woods is of no moment as far as I am concerned because of the severity and the longevity of the abuse of this child." Woods contends that this statement demonstrates that the trial court abused its discretion in sentencing her on count 2 by refusing to consider all relevant mitigating circumstances. We disagree. Contrary to Woods's suggestion in her brief, the trial court's statement does not indicate that the court "refused to consider" the fact that Woods had no prior criminal record. Rather, the court expressly acknowledged that Woods had no prior criminal record. The gravamen of the court's statement was that the circumstances of Woods's commission of the offenses charged in this case far outweighed the fact that she had no prior record. Accordingly, we reject Woods's claim that the trial court refused to consider her lack of a prior record as a factor in mitigation.
In addition, the probation report stated as a factor in mitigation that Woods had no criminal record, and the trial court indicated that it had read and considered the probation report.
Woods also asserts that the trial court should have considered as factors in mitigation that she had "been a good mother, and had a job until she met and began living with Hardin." Wood did not raise either of these purported factors in mitigation in the trial court, and has therefore forfeited any claim based on such alleged factors on appeal. (See People v. Kelley (1997) 52 Cal.App.4th 568, 582.) In any event, the allegation that Woods had been a "good mother" and the fact that she had held a job before she met Hardin, clearly would not merit reversal of the upper term sentences on count 2 and the associated great bodily injury enhancement.
In a supplemental opening brief, Woods contends that the trial court erred in failing to find as mitigating factors that she was a passive participant or that she played a minor role in the abuse, and that she participated in the offense under coercion or duress. Assuming that trial counsel's brief reference to Woods having "suffer[ed] under the hands of Mr. Hardin" preserved these objections, the trial court did not abuse its discretion in refusing to find the existence of these mitigating factors, particularly in light of the jury's finding that Woods personally inflicted great bodily injury on N.M. (§ 12022.7, subd. (d)).
3. Woods forfeited her claim that the trial court erred in relying on improper grounds for sentencing her to the upper terms on count 2 (child abuse) (§ 273a, subd. (a)) and the related great bodily injury enhancement (§ 12022.7, subd. (d)); Woods's related ineffective assistance of counsel claim also fails
Woods claims that the trial court relied on improper grounds in sentencing her to an upper term on count 2 (child abuse) (§ 273a, subd. (a)) and to an upper term on the related great bodily injury enhancement (§ 12022.7, subd. (d)). Specifically, Woods contends that the trial court erred in relying on the same facts to impose the upper term on both the underlying offense (child abuse) (§ 273a, subd. (a)) and the great bodily injury enhancement (§ 12022.7, subd. (d)). In addition, Woods maintains that the court could not impose an upper term on the underlying offense based on the "fact of the [great bodily injury] enhancement." Woods also claims that the trial court erred in imposing the upper term sentence on the great bodily injury enhancement (§ 12022.7, subd. (d)) because aggravating facts such as those that the trial court cited are inherent in the enhancement. In the alternative, Woods argues that defense counsel provided ineffective assistance by failing to raise these objections in the trial court.
a. Governing law
(i) Forfeiture
In People v. Scott (1994) 9 Cal.4th 331, 353 (Scott), the Supreme Court held that a party who does not object to a trial court's "failure to properly make or articulate its discretionary sentencing choices, " forfeits the right to raise the claim on appeal. The Scott court explained, "Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (Ibid.)
(ii) Ineffective assistance of counsel
To establish ineffective assistance of counsel, a defendant must demonstrate both that counsel's performance was deficient and that it is reasonably probable that a more favorable result would have been reached absent the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) A reasonable probability is one that is "sufficient to undermine confidence in the outcome." (Id. at p. 694.) A court may reject an ineffective assistance of counsel claim if it finds either that counsel's performance was reasonable, or that the defendant has failed to demonstrate prejudice. (Id. at p. 687.)
b. Application
Woods did not object in the trial court to the court's imposing the upper term on both the underlying offense in count 2 (child abuse) (§ 273a, subd. (a)) and the related great bodily injury enhancement (§ 12022.7, subd. (d)) on these grounds. These claims are thus forfeited. (Scott, supra, 9 Cal.4th at p. 354.)
With respect to her claim of ineffective assistance of counsel, Woods appears to contend that remand is required because it is reasonable probably that the trial court would have imposed a more favorable sentence absent the alleged error. We disagree, for two reasons. First, the trial court's statements at sentencing make clear that the court would have imposed the aggravated terms regardless of any arguments that defense counsel might have made. At sentencing, the court referred to the "cruelty" and "viciousness" of both defendants' actions, noted that the injuries that N.M. suffered were "unfathomable, " and remarked that it was "astound[ing]" that N.M. had survived in light of the "severity and... longevity" of the defendants' abuse. The court concluded, "If I could sentence you to longer time in custody, I would do so." Second, in light of the evidence of the extent of N.M.'s injuries (see pt. III.A.4., post.), which greatly exceeded the minimum necessary to establish the offense (§ 273a, subd. (a)) and the enhancement (§ 12022.7, subd. (d)), there is no reasonable probability that the trial court would have imposed anything other than upper terms on either the underlying offense (§ 273a, subd. (a)) or the enhancement (§ 12022.7, subd. (d)).
Woods raised this contention in connection with her underlying claim that the court's purported errors in imposing upper term sentences require reversal. Woods did not present any additional argument as to prejudice in the section of her brief in which she contends that her counsel provided ineffective assistance at sentencing.
" '[W]here the facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime, the trial court can use such evidence to aggravate the sentence. [Citation.]' " (People v. Weaver (2007) 149 Cal.App.4th 1301, 1322, fn. 22.)
4. The trial court's imposition of an upper term on the great bodily injury enhancement on count 2, while in violation of Cunningham, does not require reversal because it is clear beyond a reasonable doubt that a jury would have found true at least one aggravating circumstance
Woods claims that the trial court's imposition of an upper term sentence on the great bodily injury enhancement (§ 12022.7, subd. (d)) on count 2 violated her constitutional rights to a jury trial and due process under Cunningham, supra, 549 U.S. 270. The People concede that the trial court committed Cunningham error in sentencing Woods to an upper term on the great bodily injury enhancement on count 2. (See People v. Lincoln (2007) 157 Cal.App.4th 196, 205 [explaining that former § 1170.1, subd. (d), which established a presumption of the middle term for enhancements "suffers from the identical constitutional infirmities identified by the United States Supreme Court in Cunningham, supra, 549 U.S. 270, and is similarly unconstitutional"].) However, the People contend that the error was harmless under the standard of prejudice for reviewing such errors, as set forth in Sandoval, supra, 41 Cal.4th at page 839.
After Woods was sentenced, section 1170.1, subdivision (d) was amended to remove the presumption of the middle term for enhancements. (Stats. 2009, ch. 171, § 5.) The statute now states in relevant part, "If an enhancement is punishable by one of three terms, the court shall, in its discretion, impose the term that best serves the interest of justice, and state the reasons for its sentence choice on the record at the time of sentencing." (§ 1170.1, subd. (d).)
In Sandoval, supra, 41 Cal.4th 825, the California Supreme Court established the following standard of prejudice for reviewing courts to apply in considering whether a trial court's error in imposing an upper term sentence based on facts not found by a jury requires reversal:
" '[S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.' [Citation.] By the same reasoning, if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless." (Id. at p. 839; see People v. Lincoln, supra, 157 Cal.App.4th at p. 202 [applying Sandoval in considering whether Cunningham error required reversal of the imposition of an upper term on an enhancement].)
Although we are usually reticent to affirm an upper term sentence based on our analysis of what a jury would have found (see Sandoval, supra, 41 Cal.4th at pp. 839-841), in light of the horrific nature of the victim's injuries in this case, we conclude, beyond a reasonable doubt, that a jury would have found at least one aggravating circumstance. Specifically, we conclude that a jury unquestionably would have found that Woods acted with "a high degree of cruelty, viciousness, or callousness." (Cal. Rules of Court, rule 4.421(a)(1).)
The People presented evidence that Woods inflicted the following injuries upon N.M: a contact burn to her chin; cigarette burns on her right nipple and right shoulder; a large burn on her left arm; a burn on her belly button; bruising on her cheek; bleeding in her eye likely caused by blunt force trauma to the head; and multiple blunt force injuries to her abdomen.
The injuries to N.M.'s abdomen were extremely severe. When N.M. was brought to the hospital, she had bruising on the outside of the abdomen, and her abdomen was "massively distended." Her abdominal injuries required immediate surgery. During surgery, doctors discovered that N.M.'s abdomen "was full of blood, " and that she had bruising along much of her intestine, and tearing of her mesentery. The nature of the injuries to N.M.'s abdomen indicated that she had suffered "multiple impacts." Doctors had to remove a large portion of N.M.'s small intestine and create a colostomy bag using her large intestine.
The mesentery holds a person's intestines inside the abdominal cavity.
N.M. had to use the colostomy bag for almost two months.
In addition to inflicting severe physical injury on N.M., Woods also subjected N.M. to severe "nutritional neglect." Upon her initial hospitalization, N.M. weighed just 18 pounds-the average weight of an eight-month-old child.
In addition to these injuries, Woods also inflicted the injuries as to which the jury found her guilty of torture (count 1) (§ 206). However, we do not base our analysis on these injuries, to foreclose any argument that it would be improper for a jury to have used these injuries as the basis for imposing an upper term on the great bodily enhancement (§ 12022.7, subd. (d)) on count 2 (child abuse) (§ 273a, subd. (a)). (See Cal. Rules of Court, rule 4.420(d) ["A fact that is an element of the crime upon which punishment is being imposed may not be used to impose a greater term"].)
In light of this evidence, we conclude that there is no question that a jury would have found that Woods acted with "a high degree of cruelty, viciousness, or callousness." (Cal. Rules of Court, rule 4.421(a)(1).) Accordingly, we conclude that the trial court's Cunningham error in imposing an upper term on the great bodily injury enhancement on count 2 does not require reversal.
B. Hardin's appeal
1. The trial court did not err in failing to provide, sua sponte, a limiting instruction concerning the jury's consideration of domestic violence propensity evidence; Hardin has not demonstrated that defense counsel provided ineffective assistance in failing to request such an instruction
Hardin contends that the trial court erred in failing to provide a limiting instruction, sua sponte, concerning the jury's consideration of domestic violence propensity evidence. In the alternative, Hardin claims that his defense counsel provided ineffective assistance by failing to request such an instruction.
Hardin does not challenge the trial court's decision to admit the evidence.
a. Factual and procedural background
Prior to the jury portion of the trial, the prosecutor orally requested that she be permitted to introduce evidence of Hardin's commission of uncharged acts of domestic violence, pursuant to Evidence Code section 1109. The prosecutor stated that Hardin had committed "acts of domestic aggression" against his prior girlfriend, Crystal J. (Crystal), which were detailed in a January 1, 2007 police report. The prosecutor indicated that Crystal would testify at trial concerning the domestic violence. Defense counsel objected to the admission of the evidence, noting that no charges had been filed against Hardin in connection with the actions described in the police report. After further discussion among counsel and the trial court, the court ruled that the evidence was more probative than prejudicial, and that the court would admit the evidence pursuant to Evidence Code section 1109. In reaching this conclusion, the court reasoned in part:
The police report is not in the record.
The prosecutor also explained that Crystal was the alleged victim in count 3 (unlawfully driving or taking a vehicle) (Veh. Code, § 10851, subd. (a)) and count 4 (receiving stolen property) (§ 496, subd. (a)).
"So it's very, very close in proximity for the time. It's not overly similar. There is corroboration. At least in the reports it has been previously disclosed.... There aren't a lot of witnesses that are going to be called. It's not going to be a mini trial. [Crystal is] going to make her testimony, and really... about the only thing that you would be able to do is then impeach her, of course, with her report, which she may or may not-it may or may not require the person who took the [police] report being called as a witness."
The People alleged that count 1 (torture) (§ 206) and count 2 (child abuse) (§ 273a, subd. (a)) occurred on or about January 21, 2008, which was approximately one year after the uncharged domestic violence allegedly occurred.
Crystal testified on direct examination that Hardin was her former boyfriend, and that the two had broken up in approximately July 2007. Crystal testified that Hardin had physically and sexually abused her:
"[The prosecutor:] Was there ever incidents of physical violence from Mr. Hardin to yourself?
"[Crystal]: Yes.
"[The prosecutor]: And that's not something you really want to talk about, is it?
"[Crystal]: No.
"[The prosecutor]: And there-in fact there were incidents of sexual abuse from Mr. Hardin to yourself?
"[Crystal]: Yes.
"[The prosecutor]: And that's not something you wish to go into details either?
"[Crystal]: Correct."
During cross-examination by Hardin's counsel, Crystal testified that she had told the police on one occasion that Hardin had hit her, and that she had told the police on a separate occasion that Hardin had sexually abused her. Crystal admitted that she later told police detectives that she had lied about both incidents, and that Hardin had not in fact hit her or sexually abused her. Crystal acknowledged that Hardin had not been charged with a crime in connection with either incident.
On redirect examination, Crystal testified that the reason she told police that she had lied about Hardin physically and sexually assaulting her after having reported the abuse was because, "I thought I loved him."
During cross-examination by Wood's counsel, Crystal explained that she did not want to testify in this case because Hardin was the father of her child and she "still [had] feelings for him." Crystal stated that Hardin had never hit her with a closed fist, but said that he had slapped her in the face on occasion, and that on one of these instances, Hardin had given her a black eye. Crystal also stated that she had never seen Hardin physically abuse anyone else.
On further redirect examination, Crystal testified that Hardin had hit her in the stomach when she was pregnant with his child.
b. Governing law
(i) A trial court has no duty to provide a limiting instruction, sua sponte, with respect to the jury's consideration of evidence admitted pursuant to Evidence Code section 1109
In People v. Jennings (2000) 81 Cal.App.4th 1301, 1316 (Jennings), the court held that a trial court had not erred in failing to provide, sua sponte, a limiting instruction with respect to domestic violence propensity evidence admitted under Evidence Code section 1109. The Jennings court reasoned in part:
"In the absence of a request, a trial court generally has no sua sponte duty to give a limiting instruction. Under [Evidence Code] section 355, 'when evidence is admissible... for one purpose and is inadmissible... for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.' (Italics added.) Under this provision, a court has no duty to give a sua sponte instruction limiting the purpose for which evidence may be considered. [Citations.] This principle has been held specifically to apply to limiting instructions regarding the admission of a defendant's previous uncharged misconduct. [Citation.] We conclude it applies as well to a limiting instruction on the use of evidence admitted under section 1109. [Citation.]" (Jennings, supra, at p. 1316.)
(ii) Ineffective assistance of counsel
The Jennings court also considered the defendant's argument that his counsel had been ineffective in failing to request a limiting instruction concerning domestic violence propensity evidence that had been admitted under Evidence Code section 1109. (Jennings, supra, 81 Cal.App.4th at p. 1318.) The court outlined the following well-established law governing such claims:
"In order to prevail upon a claim of ineffective assistance of counsel, appellant 'must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. [Citation.] Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation...." [Citation.] Finally, prejudice must be affirmatively proved; the record must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." [Citations.]' [Citations.]" (Ibid.)
In applying this law, the Jennings court noted that the record in that case did not demonstrate why defense counsel had not requested a limiting instruction. Further, the Jennings court observed that defense counsel may have had a tactical reason for not having requested a limiting instruction. Specifically, the court reasoned, "Defense counsel could well have concluded it was not in appellant's interest to request an instruction..., believing it would merely emphasize appellant's prior domestic abuse of the victim without adding anything of significance to the reasonable doubt instructions given by the trial court." (Jennings, supra, 81 Cal.App.4th at p. 1319.)
c. Application
(i) The trial court did not err in failing to provide a limiting instruction sua sponte
Hardin claims that the trial court should have instructed the jury pursuant to a modified version of CALCRIM No. 852 concerning the domestic violence propensity evidence that the court admitted under Evidence Code section 1109. Hardin did not request that the trial court provide such a limiting instruction, and the trial court had no duty to provide a limiting instruction, sua sponte, in the absence of a request. (See Jennings, supra, 81 Cal.App.4th at p. 1316.)
CALCRIM No. 852 informs the jury how it is to consider evidence of a defendant's commission of uncharged domestic violence. Among other matters, the instruction informs the jury that the People must prove by a preponderance of the evidence that the defendant committed the uncharged domestic violence. The instruction also states that, if the jury decides that the defendant committed the uncharged domestic violence, the jury may conclude that the defendant was disposed to commit domestic violence.
We reject Hardin's contention that the trial court was required to provide an instruction, sua sponte, under People v. Collie (1981) 30 Cal.3d 43, 63. In Collie, the court stated, "There may be an occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose, " and that under such circumstances, the trial court might have a duty to provide a limiting instruction, sua sponte. (Id. at p. 64.) In this case, the uncharged offense evidence was not a dominant part of the evidence, was not highly prejudicial, and was not minimally relevant.
Crystal's testimony was not lengthy, and clearly was not the dominant part of the evidence against Hardin. Rather, the People's presentation of evidence concerning N.M.'s injuries, and the People's presentation of circumstantial and direct evidence that demonstrated Hardin's infliction of such injuries, constituted the bulk of the evidence against Hardin. In addition, the evidence of Hardin's alleged commission of domestic violence against Crystal, while worthy of condemnation, can hardly be considered to have been unduly prejudicial in light of the evidence of Hardin's infliction of torture upon N.M. Finally, Crystal's testimony had probative value in demonstrating Hardin's propensity to commit domestic violence, a purpose that the Legislature has endorsed in enacting Evidence Code section 1109. (See People v. Cabrera (2007) 152 Cal.App.4th 695, 705-706 ["in enacting Evidence Code section 1109, the Legislature found that in domestic violence cases evidence of prior acts is particularly probative in demonstrating the propensity of the defendant"].)
In People v. Dallas (2008) 165 Cal.App.4th 940, 942-943, the court held that a prosecution for child abuse pursuant to section 273a, subdivision (a) constitutes a "domestic violence" prosecution as the term is used in Evidence Code section 1109.
(ii) Hardin has not demonstrated that defense counsel provided ineffective assistance by failing to request a limiting instruction
As in Jennings, the record in this case does not disclose the reason that defense counsel did not request a limiting instruction concerning the jury's consideration of the domestic violence propensity evidence. (See Jennings, supra, 81 Cal.App.4th at p. 1318.) However, as in Jennings, defense counsel in this case may well have elected not to request such an instruction for fear of emphasizing the uncharged domestic violence evidence. (See ibid.) Hardin's counsel could have rationally concluded that in light of the brief nature of Crystal's testimony, as well as the impeachment of that testimony, it was to Hardin's tactical advantage not to risk highlighting the unfavorable portion of Crystal's testimony by way of a limiting instruction.
The jury instruction conference was not reported, and Hardin does not contend on appeal that the record demonstrates defense counsel's reason for not requesting a limiting instruction.
Accordingly, we conclude that Hardin has not demonstrated that defense counsel provided ineffective assistance.
In light of our conclusion that Hardin has not demonstrated that defense counsel provided deficient representation, we need not consider whether Hardin has demonstrated that he suffered prejudice from such allegedly deficient representation.
2. The trial court did not err in failing to stay execution of the sentence on count 2 (child abuse)
Hardin claims that the trial court erred in failing to stay execution of the sentence on count 2 (child abuse) (§ 273a, subd. (a)) pursuant to section 654 in light of the court's execution of a sentence on count 1 (torture) (§ 206), because, he maintains, both offenses were committed for a single criminal objective. We reject Hardin's claim for the same reasons that we that rejected Woods's claim in this regard in part III.A.1., ante.
3. The abstract of judgment must be corrected to reflect the proper amount of presentence credits, and to specify that Hardin is to serve the determinate term of imprisonment prior to serving the indeterminate term
Hardin claims that the trial court erroneously awarded him 439 days of presentence custody credits, rather than the 440 days of presentence custody credits to which he was entitled. The People concede the error.
Hardin also claims that the abstract of judgment should be modified to clarify that he is to serve the determinate term of imprisonment of 12 years eight months prior to serving the consecutive indeterminate term of life in prison. (§ 669 ["Whenever a person is committed to prison on a life sentence which is ordered to run consecutive to any determinate term of imprisonment, the determinate term of imprisonment shall be served first"].) The People do not object to the modification.
We direct the trial court to correct the abstract of judgment to state that Hardin is entitled to 440 days of presentence custody credits. We further direct the trial court to modify the abstract of judgment to specify that Hardin is to serve the determinate term of imprisonment of 12 years eight months prior to the consecutive indeterminate term of life in prison.
Hardin also joins in all of Woods's arguments that would affect the judgment in his case. We conclude that none of the arguments that Woods presents in her brief affect the judgment as to Hardin.
IV.
DISPOSITION
With respect to Woods, the judgment is affirmed.
With respect to Hardin, the judgment is modified to award Hardin 440 days of presentence custody credits. The trial court is directed to correct the abstract of judgment to state that Hardin is entitled to 440 days of presentence custody credits and to modify the abstract of judgment to specify that Hardin is to serve the 12-year-eight-month determinate term of imprisonment prior to a consecutive indeterminate term of life in prison. The trial court is directed to forward the corrected abstract of judgment to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed as to Hardin.
WE CONCUR: BENKE, Acting P. J., McINTYRE, J.