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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F065562
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF134317A)
                   v.

SERJIO LUEVANO,                                                                          OPINION
         Defendant and Appellant.



         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 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)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).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,



1      Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.
2     The court also sentenced defendant to the middle term of three years on count 1,
which was stayed pursuant to section 654.



                                            2.
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 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.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

3     When the detectives asked whether Kiera’s head “snap[ped] back and forth,”
defendant answered, “Yes it did.”



                                             3.
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.”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.



4      Beaver specified:
       “That fibrous capsule that sits on top of the brain, that encloses the brain. When
       you apply force to that, … there’s movement, and the brain moves relative to the
       dura and the skull. And it shears those veins, and then … they bleed and they
       form blood in that subdural space.”



                                            4.
       “[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.”



                                              5.
       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.”5
       Sheridan also offered an explanation for the absence of external bruising:

5      Sheridan later detailed:
              “Children vary in their speed of development. But as a rule of thumb,
       children under the age of six months do not have very good head control or neck
       control, and that’s why they … can’t sit up for several months. They can’t—their
       head will flop because their neck is limp.
               “When you, therefore, shake a baby, if you were to shake it violently or put
       it through any kind of rapid deceleration, we see some of these injuries we’re
       talking about here. [¶] … [¶]
              “So if you were going to shake a child like this violently, … the neck does
       not have the strength to stop the head [from] flopping backwards and forwards.
       So the head gets subjected to the full extent of the acceleration and the
       deceleration.
              “If you were to try to do that in an older child, say even a year-old child,
       but older, the child, at that point, has fairly good neck control. And if you were to
       shake them, … the head wouldn’t flop back[ward] and forward so much. The
       neck would be able to stabilize it to some extent.”



                                             6.
      “[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. [¶]


                                             7.
       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

                                              8.
         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.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.



6        Both Hyden and Sheridan rejected Plunkett’s alternative diagnoses.



                                               9.
                                      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.[7]

7    Earlier, the court instructed:
           “You, alone, must judge the credibility or the believability of
     witnesses. In deciding whether testimony is true and accurate, use your
     common sense and experience. You must judge the testimony of each


                                           10.
             “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



      witness by the same standard, setting aside any bias or prejudice you may
      have.
             “You may believe all, part or none of any witness’s testimony.
      Consider the testimony of each witness and decide how much of it you
      believe.
             “In evaluating a witness’s testimony, you may consider anything that
      reasonably tends to prove or disprove the truth or accuracy of that
      testimony.
              “Among the factors you may consider are the following: How well
      could the witness see, hear or otherwise perceive the things about which the
      witness testified; how well was the witness able to remember and describe
      what happened; what was the witness’s behavior while testifying; did the
      witness understand the questions and answer them directly; was the
      witness’s testimony influenced by a factor such as bias or prejudice, a
      personal relationship with someone involved in the case or a personal
      interest in how the case is decided; what was the witness’s attitude about
      the case or about testifying; did the witness make a statement in the past
      that is consistent or inconsistent with his or her testimony; how reasonable
      is the testimony when you consider all the other evidence in the case; did
      other evidence prove or disprove any fact about which the witness testified;
      has the witness engaged in other conduct that reflects on his or her
      believability.”



                                            11.
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


                                             12.
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.8


8      Alternatively, defendant claims he received ineffective assistance of counsel
because his attorney failed to request clarification or amplification of CALCRIM
No. 220. (See generally Strickland v. Washington (1984) 466 U.S. 668.) We reject this
contention. (See People v. Scott (1997) 15 Cal.4th 1188, 1212 [“If the record does not
shed light on why counsel acted or failed to act in the challenged manner, we must reject
the claim on appeal unless counsel was asked for and failed to provide a satisfactory
explanation, or there simply can be no satisfactory explanation.”]; see also People v.
Jones (2003) 29 Cal.4th 1229, 1254 [“‘“there is a ‘strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance’”’”].)



                                             13.
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.”



      As for defendant’s concern that the jury “could not understand the import of
Dr. Hyden’s opinion on the ultimate issue in this case,” we believe the trial court fully
addressed the matter by reading CALCRIM No. 332. (See § 1127b.)
       Lastly, because we do not find any instructional error, we need not address the
issue of prejudice.



                                             14.
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.)




                                               15.
       “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

                                              16.
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.




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