Filed 10/7/15 P. v. Padilla CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066128

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCE338244)

MELISSA LOUISE PADILLA,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Herbert J.

Exarhos, Judge. Affirmed.

         John Derrick, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa

Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

         Melissa Louise Padilla appeals a judgment following her jury convictions of one

count of elder abuse under circumstances likely to produce great bodily harm (Pen. Code,
§ 368, subd. (b)(1)),1 one count of assault by means of force likely to produce great

bodily injury (§ 245, subd. (a)(4)), and one count of assault with a deadly weapon (§ 245,

subd. (a)(1)). On appeal, she contends: (1) because the evidence is insufficient to support

a finding she committed elder abuse under circumstances likely to produce great bodily

harm or death, the trial court erred by denying her section 1118.1 motion for judgment of

acquittal on the section 368, subdivision (b)(1), charge against her; (2) the court

prejudicially erred by ordering her to be physically restrained while testifying without

any manifest need to do so; and (3) the court improperly penalized her for exercising her

constitutional right to a jury trial by imposing a greater sentence on her than it indicated it

would before trial.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In 2014, Padilla lived in a home in Santee with Beverly Cunningham (her

grandmother), Brent Cunningham (her uncle), Edwin Cunningham (her uncle), and her

two children. At about 12:30 a.m. on February 23, Padilla was sitting outside on a chair

on the patio with her daughter asleep on her lap. Padilla had been drinking alcohol on the

patio that evening. Brent had just returned home from work. Beverly went outside to

wake up Padilla. When Beverly tapped her on the arm, Padilla told her, "F you, waking

me up." Beverly told Padilla to bring her daughter inside the house. After about 30

seconds of arguing, Padilla slapped Beverly on the arm and pushed her backwards.

Beverly stumbled backwards, but regained her balance. Padilla pushed her a second


1      All statutory references are to the Penal Code.

                                              2
time. Padilla then took her daughter inside the house and locked Beverly outside.

Beverly was locked outside between 30 seconds and five minutes until Brent let her in

the house.

       Inside the house, Padilla and Beverly continued arguing. Padilla was screaming,

using profanity, and calling Beverly "nasty" names. When Beverly told Padilla to stop

because her daughter was scared and crying, Padilla placed both of her hands around

Beverly's throat and started choking her. Beverly gasped for breath and was "really,

really scared." After less than a minute, Brent came and tried to pull Padilla off Beverly.

Brent hit Padilla in the jaw with his fist to get her to let Beverly go. Padilla then grabbed

a child's gate and hit Brent in the right temple with it, causing him to bleed from his right

temple.

       Beverly called 911 to report the incident. She reported that "[s]he [i.e., Padilla]

just got me around the neck and was choking me." About that time, Edwin (also known

as Doug) woke up. He was recovering from a stroke and diabetic attack, and used a

walker. He went to the kitchen and saw Beverly was crying hysterically and had red

marks around her neck. Edwin asked Padilla, "What the hell is wrong with you?" He

and Padilla argued for about five minutes. Padilla was screaming, cussing, and calling

him names.

       Beverly called 911 a second time. Padilla tried to grab the telephone out of

Beverly's hand. Padilla yelled for help, screaming that Edwin would not let her out of the

house. She cursed at Edwin and pushed him to the floor. She grabbed a meat cleaver and

was threatening him with it while he lay on the floor. She opened the front door and

                                              3
screamed, "Let the whole damn world see this." She then approached Edwin, who was

still on the floor, and swung the meat cleaver at him, coming within two feet of him.

Edwin grabbed her wrist.

        San Diego Deputy Sheriff Troy Udvarhelyi arrived at the home and heard

screaming and commotion. He could see through the open front door into the kitchen.

Padilla was holding a meat cleaver inches from Edwin's head, and Edwin was trying to

push her away. San Diego Deputy Sheriff Felipe Guths also arrived at the scene and saw

Padilla holding a knife above her head. Udvarhelyi repeatedly told Padilla to drop the

cleaver. After five to 10 seconds, she dropped it. She appeared intoxicated and smelled

of alcohol. She was rambling and screaming random statements. Although Beverly

sustained injuries to her arm and wrist, she apparently did not have any injuries on her

neck.

        An information charged Padilla with one count of elder abuse under circumstances

likely to produce great bodily harm (§ 368, subd. (b)(1)), one count of assault by means

of force likely to produce great bodily injury (§ 245, subd. (a)(4)), and one count of

assault with a deadly weapon (§ 245, subd. (a)(1)). It also alleged that in committing

count 3, she used a deadly or dangerous weapon (i.e., a cleaver) within the meaning of

section 1192.7, subdivision (c)(23).

        At trial, the prosecution presented the testimonies of Beverly, Brent, Edwin,

Udvarhelyi, and Guths substantially as described above. The prosecution also presented

evidence of a prior incident in 2005 during which Padilla grabbed Beverly's hair and

pulled her down on the floor. She choked Beverly, saying "I'm going to kill the bitch."

                                             4
Brent told her to let Beverly go and punched Padilla in the face. Beverly sustained red

and purple marks on her throat and bruises on her arm. Padilla pleaded guilty to a charge

of battery against Beverly.

       Padilla testified in her defense. She stopped drinking alcohol at about 9:30 or

10:00 p.m. that evening. She was screaming to herself about what a jerk her ex-husband

was. Beverly came out and asked Padilla at whom was she yelling. She told Beverly to

"[g]et out my face [and] stop nagging me." Padilla walked inside the house, but did not

lock Beverly outside. Brent pushed or punched her and she "went out." When she "came

to," Brent was on top of her and she palmed him in the face to get him off of her. She

remembered being pushed against the refrigerator. Edwin had his hands around her

throat, choking her, and she had a meat cleaver in her hand. When deputies arrived and

told her to drop the cleaver, it was by her side and not above her head.

       The jury found Padilla guilty of all three charged offenses. The trial court

sentenced her to a total of six years in prison. Padilla timely filed a notice of appeal.

                                       DISCUSSION

                                              I

                              Denial of Section 1118.1 Motion

       Padilla contends the trial court erred by denying her section 1118.1 motion for

judgment of acquittal on the section 368, subdivision (b)(1), charge because the evidence

presented by the prosecutor was insufficient to support a finding that she committed elder

abuse under circumstances likely to produce great bodily harm. She argues the evidence



                                              5
did not support a finding that it was likely great bodily harm would be produced when

she placed her hands around Beverly's throat.

                                              A

         A defendant's motion for judgment of acquittal must be granted "if the evidence

. . . before the court is insufficient to sustain a conviction of such offense or offenses on

appeal." (§ 1118.1.) "An appellate court reviews the denial of a section 1118.1 motion

under the standard employed in reviewing the sufficiency of the evidence to support a

conviction." (People v. Houston (2012) 54 Cal.4th 1186, 1215.) In so doing, we focus

only on the evidence admitted at the time the motion is made. (Ibid.)

         Generally, when addressing a claim of insufficiency of the evidence, our task "is

to review the whole record in the light most favorable to the judgment to determine

whether it discloses substantial evidence—that is, evidence that is reasonable, credible,

and of solid value—such that a reasonable trier of fact could find the defendant guilty

beyond a reasonable doubt." (People v. Rodriguez (1999) 20 Cal.4th 1, 11, citing People

v. Johnson (1980) 26 Cal.3d 557, 578.) "Resolution of conflicts and inconsistencies in

the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless

the testimony is physically impossible or inherently improbable, testimony of a single

witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149,

1181.)

         The substantial evidence standard of review involves two steps. "First, one must

resolve all explicit conflicts in the evidence in favor of the respondent and presume in

favor of the judgment all reasonable inferences. [Citation.] Second, one must determine

                                               6
whether the evidence thus marshaled is substantial. While it is commonly stated that our

'power' begins and ends with a determination that there is substantial evidence [citation],

this does not mean we must blindly seize any evidence in support of the respondent in

order to affirm the judgment. . . . [Citation.] '[I]f the word "substantial" [is to mean]

anything at all, it clearly implies that such evidence must be of ponderable legal

significance. Obviously the word cannot be deemed synonymous with "any" evidence.

It must be reasonable . . . , credible, and of solid value . . . .' [Citation.] The ultimate

determination is whether a reasonable trier of fact could have found for the respondent

based on the whole record." (Kuhn v. Department of General Services (1994) 22

Cal.App.4th 1627, 1632-1633, fns. omitted.) The standard of review is the same in cases

in which the prosecution relies primarily on circumstantial evidence. (People v. Bean

(1988) 46 Cal.3d 919, 932.)

       Section 368, subdivision (b)(1), provides that "[a]ny person who knows or

reasonably should know that a person is an elder or dependent adult and who, under

circumstances or conditions likely to produce great bodily harm or death, willfully causes

or permits any elder or dependent adult to suffer, or inflicts unjustifiable physical pain or

mental suffering" is punishable by imprisonment in county jail for up to one year and/or a

fine up to $6,000, or in state prison for two, three, or four years. Great bodily injury or

harm has been defined as an "injury which is significant or substantial, not insignificant,

trivial or moderate." (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) For a

section 368, subdivision (b)(1), offense to occur, actual harm or injury is not required.

(Roman v. Superior Court (2003) 113 Cal.App.4th 27, 35.) Although "likely" often

                                               7
means probable or more likely than not, it also can mean a substantial danger or a serious

and well-founded risk. (People v. Wilson (2006) 138 Cal.App.4th 1197, 1201-1204;

People v. Russell (2005) 129 Cal.App.4th 776, 787.) To convict a defendant of elder

abuse, the jury is not required to unanimously agree on one circumstance or condition

likely to produce great bodily harm or death. (People v. Racy (2007) 148 Cal.App.4th

1327, 1334.)

                                              B

         Based on our review of the record, we conclude the prosecution presented

sufficient evidence at the time of Padilla's section 1118.1 motion to have supported a

finding by the jury that she committed elder abuse "under circumstances or conditions

likely to produce great bodily harm or death." (§ 368, subd. (b)(1).) The jury could have

reasonably found that when Padilla angrily placed her hands around Beverly's throat and

began choking her, it was likely her actions would produce great bodily harm or death.

At the time of trial, Beverly was 79 years old. As Padilla choked Beverly for less than

one minute, Beverly gasped for breath and was really scared. The jury could reasonably

infer Padilla's actions in choking Beverly were likely to produce great bodily harm or

death.

         The fact Beverly did not actually suffer any great bodily injury did not preclude a

finding Padilla's actions were likely to produce great bodily harm or death. Rather, the

jury could reasonably find Padilla's actions posed a substantial danger or a serious and

well-founded risk to Beverly of great bodily harm or death. (People v. Wilson, supra,

138 Cal.App.4th at pp. 1201-1204; People v. Russell, supra, 129 Cal.App.4th at p. 787.)

                                               8
Because there was substantial evidence to support a finding by the jury that Padilla's

elder abuse was committed "under circumstances or conditions likely to produce great

bodily harm or death," the trial court properly denied Padilla's section 1118.1 motion for

acquittal of the section 368, subdivision (b)(1), charge against her. To the extent Padilla

cites other evidence or inferences therefrom to support a contrary finding, she

misconstrues and/or misapplies the substantial evidence standard of review that we apply

in reviewing the denial of a section 1118.1 motion.

                                               II

                   Trial Court's Order for Physical Restraint of Padilla

       Padilla contends the trial court prejudicially erred by ordering she be physically

restrained while testifying without any manifest need for restraint.

                                               A

       During trial, the trial court raised the issue of restraining Padilla if she chose to

testify either with shackling or the immediate presence of a bailiff. The court expressed

concerns based on the configuration of its courtroom (i.e., the close proximity of the

witness stand to the jury box). The court stated:

          "[W]hat I have in the [witness stand] is an o-ring on the floor under
          the desk to which she can be shackled which is not visible from the
          jury box. I've sat in seats one and seven, it's not visible. If she is
          shackled to that, the bailiff need not accompany her. The jury is not
          present when she's placed in the jury box. She's able to stand and
          still not be visible so she can show her respects to the jury. At the
          end of her testimony, then we recess, the jury is then excused, the
          windows are blocked and she's released. Because of the nature of
          the charges—any defendant. I just have a problem with the
          proximity of the jury.


                                               9
           "Your choices are, one, to secure her in that fashion. I will give you
           an opportunity to examine it if you want to see how visible. I have
           done it before and it works. Or, to have the bailiff accompany her to
           the [witness stand]. I'm not going to let her go up there
           unaccompanied." (Italics added.)

Padilla's counsel objected to both alternatives for restraint, but the court replied either her

counsel would pick one or it would pick one. The court stated those security measures

would not have been necessary if Padilla was out of custody. The court explained:

           "The fact remains she's in custody. She's charged with three crimes
           of violence and . . . I have done it before, [testifying defendants are]
           three to five feet away from the jury and I will not allow it. I have
           done it in such a way that it does not disclose her custody status. I
           assume you want the latter. When there's a recess, you can examine
           it [i.e., the witness stand].

The court later explained:

           "In chambers, I mentioned what I consider the procedure if she
           chooses to testify. Ordinarily, in the past, the bailiff would
           accompany her to the witness stand and hover. The appellate courts
           have indicated their displeasure with that process. But they, at least
           in the TV shows I watch in other courtrooms, the witness stand is on
           the opposite side of the courtroom from the jury box. That is not the
           case in this courtroom. The jury box is maybe five feet away and the
           defendant is in custody. She's charged with a felony. I'm not going
           to make any specific finding of her propensity to commit violence or
           whatever. I'm not convince[d] I need to.

           "The choices are: The [witness stand] is equipped with an o-ring
           hidden under the desk to which she would be attached. I have
           checked from the number one and number seven jury seats and that
           is not visible and it does allow her to stand to show her respect when
           the jury enters." (Italics added.)

The court stated: "I emphasize, it's not directed to this particular defendant." (Italics

added.) The court then had the bailiff conduct a "dry run" by placing Padilla on the

witness stand to determine whether the restraint on her would be visible from the jury

                                              10
box. Padilla's counsel stated that although he could not see the o-ring, he could see the

chain and the "thing" around Padilla's ankle. The court then directed the bailiff to shorten

the chain, so Padilla's foot would be hidden farther under the desk. The court further

noted Padilla could keep her foot under the desk "to minimize any visibility."

       After the prosecution rested its case, the trial court revisited the issue of restraining

Padilla, stating:

           "I want the record to reflect that [during a recess] the Court went
           over and sat in the number 7 juror seat and could see, if it looked
           intentionally, if it looked into the [witness stand], it could see the
           securing of the defendant, but it was difficult to do so. However, . . .
           that is controlled by the defendant. If she simply moves her leg
           forward, it can't be viewed. That's up to her. I wanted to put on the
           record that there's a lot of room for her to move the cord. There's no
           restraint for her to move it forward, even in the standing position,
           she can keep that foot forward."

Padilla later testified in her defense, presumably with the physical restraint described by

the trial court.

                                               B

       "[A] defendant cannot be subjected to physical restraints of any kind in the

courtroom while in the jury's presence, unless there is a showing of a manifest need for

such restraints." (People v. Duran (1976) 16 Cal.3d 282, 290-291, fn. omitted (Duran).)

A "manifest need" for restraints is shown when a defendant has been unruly, announced

an intention to escape, or when the evidence shows the defendant would likely disrupt the

judicial process. (People v. Wallace (2008) 44 Cal.4th 1032, 1050; People v. Lewis and

Oliver (2006) 39 Cal.4th 970, 1031-1032; People v. Seaton (2001) 26 Cal.4th 598, 651.)

It is an abuse of a trial court's discretion to impose physical restraints in the absence of a

                                              11
showing on the record of violence or threat of violence or other nonconforming conduct.

(Wallace, at p. 1050; Lewis and Oliver, at p. 1032; Seaton, at p. 651.) "[T]he trial judge

must make the decision to use physical restraints on a case-by-case basis. The court

cannot adopt a general policy of imposing such restraints upon prison inmates charged

with new offenses [or other defendants] unless there is a showing of necessity on the

record." (Duran, at p. 293.) Furthermore, a court cannot justify the use of restraints

based solely on the layout of the courtroom and/or the fact the defendant has been

charged with a violent crime. (Seaton, at p. 652.)

       The due process clause of the United States Constitution prohibits the use of

visible shackles unless they are justified by an essential state interest (e.g., courtroom

security) specific to the defendant. (Deck v. Missouri (2005) 544 U.S. 622, 624, 632;

People v. McDaniel (2008) 159 Cal.App.4th 736, 742.) If a trial court requires a

defendant to wear shackles that will be seen by the jury without adequate justification, it

is federal constitutional error unless the People prove beyond a reasonable doubt the error

did not contribute to the verdict. (Deck, at p. 635; McDaniel, at p. 742; Chapman v.

California (1967) 386 U.S. 18, 24.) In contrast, if a trial court orders a defendant to be

restrained without a showing of manifest need for such restraints but the record does not

affirmatively show the jury saw the restraints, the error is subject to the harmless error

standard of People v. Watson (1956) 46 Cal.2d 818, 836 (i.e., the error is harmless unless

the defendant shows it is reasonably probable he or she would have obtained a more

favorable verdict in the absence of visible restraints). (People v. Jackson (1993) 14

Cal.App.4th 1818, 1829 (Jackson).) The California Supreme Court has "consistently

                                              12
held that courtroom shackling, even if error, was harmless if there is no evidence that the

jury saw the restraints, or that the shackles impaired or prejudiced the defendant's right to

testify or participate in his [or her] defense." (People v. Anderson (2001) 25 Cal.4th 543,

596; see also People v. Tuilaepa (1992) 4 Cal.4th 569, 583-584.)

                                             C

       Based on our review of the record, we conclude the trial court abused its discretion

by ordering that Padilla be restrained during her testimony without a showing of manifest

need for such restraint. The court made its decision to restrain Padilla based on the close

proximity of the witness stand to the jury box and the fact she was charged with a violent

crime and/or was an inmate. The court explained its basis for imposing the restraint

requirement, stating it was "[b]ecause of the nature of the charges—any defendant. I just

have a problem with the proximity of the jury." The court did not receive or consider any

information that Padilla posed a risk of violent or unruly conduct in court or had

threatened to escape. By apparently applying a general policy of restraining all

defendants charged with violent crimes regardless of showing of a manifest need that the

particular defendant be restrained, the court erred. "[T]he trial judge must make the

decision to use physical restraints on a case-by-case basis. The court cannot adopt a

general policy of imposing such restraints upon prison inmates charged with new

offenses [or other defendants] unless there is a showing of necessity on the record."

(Duran, supra, 16 Cal.3d at p. 293.)

       The court in this case apparently believed it was not required to consider whether

there was a manifest need for Padilla to be restrained, stating: "I'm not going to make any

                                             13
specific finding of her propensity to commit violence or whatever. I'm not convince[d] I

need to." (Italics added.) We hold that a trial court needs to make a specific finding that

there is a showing of manifest need for restraining a particular defendant (e.g.,

information showing a defendant poses a significant risk of violent conduct in the

courtroom) before it can order that defendant to be restrained. (Duran, supra, 16 Cal.3d

at pp. 290-291; People v. Wallace, supra, 44 Cal.4th at p. 1050; People v. Lewis and

Oliver, supra, 39 Cal.4th at pp. 1031-1032; People v. Seaton, supra, 26 Cal.4th at

p. 651.)

                                             D

       Although the trial court abused its discretion by ordering that Padilla be restrained

without considering whether there was a manifest need for such restraint, we nevertheless

conclude that error was not prejudicial under the Watson standard. Contrary to Padilla's

assertion, because the record does not affirmatively show the jurors saw Padilla's

restraints, we conclude there was no federal constitutional error requiring the application

of the more stringent Chapman standard of prejudicial error. (Jackson, supra, 14

Cal.App.4th at p. 1829.) Instead, the record shows there was, at most, a possibility jurors

could have seen her restraints. Furthermore, it was possible for jurors to have seen the

restraints only if she did not keep her foot forward and the attached chain or cord

adequately hidden or obscured by the witness stand's desk. Therefore, because the record

does not affirmatively show her restraints were seen by the jury, the court's error did not

violate her federal constitutional rights. (Deck v. Missouri, supra, 544 U.S. at p. 635;

Jackson, at p. 1829.)

                                             14
       Under the California standard of prejudicial error, it has been "consistently held

that courtroom shackling, even if error, was harmless if there is no evidence that the jury

saw the restraints, or that the shackles impaired or prejudiced the defendant's right to

testify or participate in his [or her] defense." (People v. Anderson, supra, 25 Cal.4th at

p. 596; see also People v. Tuilaepa, supra, 4 Cal.4th at pp. 583-584.) In this case, as

discussed above, there is no evidence the jury actually saw Padilla's restraints. Likewise,

contrary to Padilla's assertion, there is no evidence showing her right to testify or

participate in her defense was prejudiced. Padilla was restrained only when she was on

the witness stand. She, at most, speculates the hidden leg restraint resulted in

psychological effects that impaired her testimony or demeanor while on the witness

stand. However, it cannot be reasonably inferred from the record that either her

testimony or demeanor was adversely affected by that restraint. People v. Mar (2002) 28

Cal.4th 1201, cited by Padilla, involved a powerful electronic stun belt worn by the

defendant during his testimony and therefore is factually inapposite to this case and does

not persuade us to reach a contrary conclusion. Based on our review of the record, we

conclude it is not reasonably probable Padilla would have obtained a more favorable

verdict had she not been restrained during her testimony. (Jackson, supra, 14

Cal.App.4th at p. 1829; People v. Watson, supra, 46 Cal.2d at p. 836.) The court's error

in ordering that she be physically restrained during her testimony was not prejudicial.




                                             15
                                              III

               Imposition of Sentence Greater Than Indicated Before Trial

       Padilla contends the court improperly penalized her for exercising her

constitutional right to a jury trial by imposing a greater sentence on her than it indicated it

would before trial. She argues that because there was no new information the court

obtained during trial or at sentencing that could have supported a greater sentence, the

court must have wrongly penalized her for going to trial.

                                              A

       The prosecution's trial brief represented that Padilla had one prior felony

conviction (i.e., a § 496, subd. (a), conviction for receiving stolen property). It also

briefly described the events of the instant incident.

       At the pretrial hearing on in limine motions, the trial court raised the issue of plea

negotiations between the parties. The court stated:

          "I don't know what the People are offering in this case, but the court
          indicated its inclination that if she [Padilla] were to plead to the
          charges—they're currently not willing to make a plea agreement, but
          if she were willing to plead to the charges, at the time of sentencing,
          I would reduce counts 2 and 3 to misdemeanors, count 3 being the
          most significant because it is a serious felony and a strike. She
          would still face a felony charge on count 1 and the court has
          indicated its inclination to grant her probation.

          "You asked in chambers for the court to commit itself to a 180 day
          maximum sentence and local time. As I have reconsidered—the
          reason I'm not willing to do that, it may well end up that way. I don't
          know what her credits are, it may end up that way. The reason I'm
          not willing to do that is I don't know until I see the probation report
          what her attitude is going to be. If she goes to the probation and
          says 'This is a bunch [of] bull. This never happened. This is
          ridiculous.' If she has an attitude problem, then I'm not going to be

                                              16
          bound. It's that simple. That's where we stand. I assume you
          conveyed all of that except maybe those last comments?" (Italics
          added.)

The court continued: "My inclination is if she goes up there with a little bit of humility

and a little bit of humbleness never hurt anybody. But if I detect a certain amount of

denial? Arrogance? I don't know. But that would make the difference. That's why I'm

not willing to commit to the 180 days, but I'm willing to commit to the grant of

probation." (Italics added.) The court then asked Padilla whether she understood what it

was saying. Padilla replied, "Uh-huh. I'm not pleading."

       After trial, the probation report stated Padilla was presumptively ineligible for

probation pursuant to section 1203, subdivision (e)(4), because she had three prior felony

convictions. It further stated there was nothing unusual in this case to overcome that

presumption. It cited three factors supporting a denial of probation: (1) Padilla was

armed with a weapon (i.e., a metal baby gate and a meat cleaver); (2) she inflicted

personal injury on her grandmother and uncle; and (3) she had not expressed remorse for

the instant offense. It stated the probation officer had "considered making a

recommendation for 365 days in local custody followed by a three[-]year grant of formal

probation. However, the instant offense was violent and the defendant has shown no

remorse or interest in addressing the issues that contributed to her behavior. The

defendant is presumptively ineligible for probation pursuant to [section] 1203[,

subdivision] (e)(4), in that the instant offense is a felony and she has had three prior

felony convictions. She has two prior felony convictions related to possession [of]

methamphetamine and one for possession of stolen property." The probation officer

                                              17
recommended that probation be denied and Padilla be sentenced to a total term of four

years in prison.2

       At sentencing, the prosecution argued Padilla should be sentenced to the upper

term for the elder abuse count, noting she had not taken responsibility for her actions and

was unlikely to succeed on probation. The trial court denied Padilla probation, stating

she was presumptively ineligible for probation and there were no unusual circumstances

to overcome that presumption. The court then imposed a total term of six years in prison,

consisting of an upper four-year term for the elder abuse conviction and consecutive one-

year terms for each of the other two offenses.

                                             B

       A trial court may properly indicate before trial what sentence it would impose

based on a given set of facts, but it cannot engage in plea bargaining. (People v. Clancey

(2013) 56 Cal.4th 562, 570 (Clancey).) A court may not treat a defendant more leniently

because he or she forgoes the right to trial or more harshly because he or she exercises

that right. (Id. at p. 575.) In general, "the indicated sentence must be the same

punishment the court would be prepared to impose if the defendant were convicted at

trial." (Ibid.)




2      The probation report also stated that Beverly thought Padilla should serve at least
a year in local custody and then receive probation, Brent believed she should go to
prison, and Edwin believed she should be sentenced to prison and "however long she is
sentenced to jail or prison will not be long enough."

                                            18
          However, an indicated sentence is not a promise from the court. (Clancey, supra,

56 Cal.4th at p. 575.) By indicating a sentence, "the court has merely disclosed to the

parties at an early stage—and to the extent possible—what the court views, on the record

then available, as the appropriate sentence so that each party may make an informed

decision." (Ibid.) Accordingly, if the factual predicate underlying an indicated sentence

is disproved at trial, the court may withdraw that indicated sentence. (Id. at p. 576.)

Furthermore, the court retains broad discretion to modify an intended sentence even if its

factual predicate is not disproved. (Id. at pp. 576-577.) In particular, "[t]he development

of new information at sentencing may persuade the trial court that the sentence

previously indicated is no longer appropriate for this defendant or these offenses. Or,

after considering the available information more carefully, the trial court may likewise

conclude that the indicated sentence is not appropriate." (Id. at p. 576.) Therefore, a

court may sentence a defendant differently than an indicated sentence based on additional

new information or a reexamination of the relevant circumstances. (Ibid.) Clancey

stated:

             "[A]n indicated sentence is not a promise that a particular sentence
             will ultimately be imposed at sentencing. Nor does it divest a trial
             court of its ability to exercise its discretion at the sentencing hearing,
             whether based on the evidence and argument presented by the
             parties or on a more careful and refined judgment as to the
             appropriate sentence. . . . [T]he utility of the indicated-sentence
             procedure . . . depends to a great extent on whether the record then
             before the court contains the information about the defendant and the
             defendant's offenses that is relevant to sentencing." (Clancey, supra,
             56 Cal.4th at p. 576.)




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Therefore, a trial court retains its full discretion at sentencing to select a fair and just

punishment despite any previous indicated sentence. (Id. at p. 562.)

       It is unconstitutional for a court to penalize a defendant who chooses to exercise

his or her constitutional rights. (U.S. v. Jackson (1968) 390 U.S. 570, 581.) However,

the imposition of a greater sentence than an indicated sentence does not, in itself, support

an inference the court penalized the defendant for exercising his or her constitutional

right to a trial. (People v. Szeto (1981) 29 Cal.3d 20, 34-35.) Instead, the record must

show the court imposed a greater sentence as punishment for exercise of that right.

(People v. Angus (1980) 114 Cal.App.3d 973, 989-990.)

                                                C

       Based on our review of the record, we conclude Padilla has not carried her burden

on appeal to persuade us the trial court imposed a greater sentence than its indicated

sentence as punishment for her exercise of her constitutional right to a trial. Contrary to

her assertion, the court, at the time of its indicated sentence, did not have "every material

piece of evidence relating to the assault on Beverly." Instead, the court had the

information and the prosecution's trial brief, including its two-page description of the

instant incident and Padilla's one prior felony conviction and one prior misdemeanor

conviction. In contrast, at the time of sentencing, the court had additional information,

including the testimony of six witnesses and various photographic and other exhibits

admitted at trial, as well as the probation report. The probation report stated Padilla had

three prior felony offenses and not just the one prior felony offense described in the

prosecution's trial brief. It also showed Padilla was not remorseful for her criminal

                                               20
behavior. Accordingly, the court had new and/or additional information regarding the

circumstances of the instant offenses and Padilla's criminal record and attitude that could

have made it conclude its indicated sentence (i.e., grant of probation) was no longer

appropriate and a prison term (i.e., six years in prison) was now appropriate. (Clancey,

supra, 56 Cal.4th at pp. 576-577.) Likewise, the court may have considered more

carefully the initial information it had before trial and decided based on that information,

either by itself or together with the new information it received during trial and at

sentencing, that a grant of probation was no longer appropriate. (Ibid.) We conclude the

court did not abuse its discretion by imposing a six-year prison term rather than granting

Padilla probation. Contrary to Padilla's assertion, there is nothing in the record to support

a reasonable inference that the court imposed a greater sentence as punishment for her

exercise of her right to a trial. It is mere speculation that its imposition of a six-year term

rather than granting probation was, by itself, evidence that the court imposed a greater

sentence to punish her for exercising her right to a trial.

                                       DISPOSITION

       The judgment is affirmed.


                                                                             McDONALD, J.
WE CONCUR:


McCONNELL, P. J.


O'ROURKE, J.



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