Filed 8/26/13 P. v. Thompson CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                    F064843

                   v.                                                   (Super. Ct. No. BF134876A)

AMETHYST THOMPSON,                                                                OPINION

         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Kern County. William D.
Palmer, Judge.
         Julia J. Spikes, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
Tiffany J. Gates, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

        Before Cornell, Acting P.J., Gomes, J., and Franson, J.
       Appellant, Amethyst Thompson, pleaded no contest to two counts of felony child
abuse/neglect (Pen. Code, § 273a, subd. (a)1; counts 1, 2). The court imposed the four-
year midterm sentence on count 1 and a concurrent four-year midterm sentence on
count 2.
       On appeal, appellant contends the court erred in sentencing her to prison rather
than placing her on probation. We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND2
The Instant Offenses
       Appellant and her codefendant, Richard Thompson (the father), are the parents of
two children, to whom we refer, respectively, as Victim 1 and Victim 2.
       A Kern County Sherriff‟s Department (KCSD) report states the following: On
February 26, 2010 (February 26), deputies responding to a report of an injured infant
made contact with doctors at Mercy Southwest Hospital, and learned that Victim 1, age
four months, had suffered four to five broken ribs, a fracture of the left humerus, a
“questionable corner fracture [of] the right femur,” and “an acute subdural and
subarachnoid hemorrhage on the brain.” The doctors “felt the child [had] suffered „non-
accidental trauma.‟”
       Several weeks later, on April 9, 2010, Victim 1 was again examined by doctors,
who found that the child “had a blood mass (retinal hemorrhage) in his right eye that
completely obscured his vision.” This type of injury, the doctors stated, “is consistent
with Shaken Baby Syndrome.”




1      All statutory references are to the Penal Code.
2      Information in this section is taken from the report of the probation officer (RPO).


                                             2
       Appellant and the father told deputies that “earlier that evening,” on February 26
Victim 1 began screaming and gasping for air. The infant “went limp,” and a “family
member” took the child “over to a neighbor” who called 911.
       On March 22, 2010, doctors informed a KCSD detective that Victim 2, also age
four months on February 26, “had four, possibly five fractured ribs that were in the
process of healing” and “were estimated to be a few weeks old.”
       Appellant and the father, when questioned by KCSD detectives on February 26
“denied any wrong doing” and stated they did not know how Victim 1 had received his
injuries. “During a subsequent interview,” the father “indicated he may have
„accidentally‟ caused the injury while „playing‟ with the infant,” i.e., by throwing the
baby up in the air. He also stated “he may have „bounced‟ the infant too hard.”
       Family members questioned by detectives “indicated they had never seen either
parent physically mistreat or harm the infants,” but “many felt the infants were being
severely neglected.” Family remembers reported the following: Neither appellant nor
the father were employed and spent “most of the day” at home. “When the babies cried,
they would leave them in their car seats and allow them to cry for hours at a time”;
“[w]hen feeding the infants, they did not take them out of the car seat, but would prop the
bottles up using blankets”; and “[t]hey would also neglect to change [the infants‟] diapers
resulting in an extreme case of diaper rash.”
       “During the investigation, a polygraph was conducted. The results of the
polygraph indicated both parents knew the injuries had to be a result of their actions as
they were the sole caregivers. When confronted with this, both defendants admitted and
agreed the injuries had to be caused by one of them.”
Additional Background
       Appellant was 19 years old on February 26. She “has no known prior record of
criminal conduct.”

                                                3
Procedural Background
       The probation officer, in her RPO, found as “circumstances in aggravation”
(emphasis and unnecessary capitalization omitted) that both victims were “particularly
vulnerable” and that in committing the instant offenses appellant “took advantage of a
position of trust or confidence .…”
       In advance of the sentencing hearing, the prosecutor submitted a brief in which,
making specific reference to the criteria for denying probation set forth in California
Rules of Court, rule 4.414,3 she asserted, inter alia, the same points.4
       At the sentencing hearing, defense counsel argued that neither of these
circumstances “have been established by any proof .…” With respect to the question of
whether the victims were particularly vulnerable, she argued that such vulnerability was
“part and parcel of the charge itself .…” In response to this point, the prosecutor
countered that a four-month-old child would be far more vulnerable than, e.g., a 15-year-
old child.
       In denying probation, the court stated the following:
       “Let me just make a couple of comments.… Number one, in regard to the
circumstances in aggravation, and it is really not going to make any difference, but I
don‟t know that [the probation officer‟s finding that appellant took advantage of a
position of trust and confidence] is truly a -- as to this offense. It is a part of the offense.
So I can‟t see how it is an aggravating circumstance.

3      All rule references are to the California Rules of Court.
4       Rule 4.414 provides, “Criteria affecting the decision to grant or deny probation
include facts relating to the crime and facts relating to the defendant,” and lists nine facts
in the former category (rule 4.414(a)(1)-(9)) and eight in the latter (rule 4.414(b)(1)-(8)).
These facts include “The vulnerability of the victim” (rule 4.414(a)(3)) and “Whether the
defendant took advantage of a position of trust or confidence to commit the crime” (rule
4.414(a)(9)).


                                                4
       “I do agree with the People ... that there is a difference between a four month old
and a 17 year old.
       “[¶] ... [¶] ... The letters [submitted on behalf of appellant by family members] all
point to the defendant as being a young lady of trust. None of them refer in any way to
her parenting skills or to the children. And that ... I found telling.”
       After imposing sentence, the court further stated: “Ms. Thompson, the Court has
struggled with what to do on this case. In the Court‟s view, you have violated one of the
most sacred trusts that a human being is bestowed with.
       “Parenting is a very, very difficult proposition. But your children have to have the
parents that will protect them. I am hopeful that you will never allow this to happen
again. I am also hopeful that anyone who hears about this will realize how serious this
offense is.
       “In the Court‟s view, it is one of the most serious offenses that society faces. I
wish I had a magic wand to play back and undo what you‟ve done. I don‟t. So you are
going to have to pay the price for it.”
                                          DISCUSSION
Claim of Application of Incorrect Legal Standard
       Appellant argues that the trial court “fail[ed] ... to consider probation under the
correct legal standard.” This argument, as best we can determine, consists of three parts.
Section 1203, subdivision (e)(3)5
       First, relying on People v. Lewis (2004) 120 Cal.App.4th 837 (Lewis), appellant
contends the court incorrectly believed appellant was presumptively ineligible for
probation under section 1203(e)(3). We disagree.



5      We refer to section 1203, subdivision (e)(3) as section 1203(e)(3).


                                               5
       Preliminary, we note that as respondent concedes, the major premise of appellant‟s
argument is correct: She was not presumptively ineligible for probation under section
1203(e)(3). Section 1203, subdivision (e) provides that “Except in unusual cases where
the interests of justice would best be served if the person is granted probation, probation
shall not be granted” to any of the persons described in subdivision (e)(1) through (e)(13)
of section 1203. Appellant does not meet any of these descriptions.
       The probation officer thought otherwise, and stated in the RPO that appellant was
presumptively ineligible for probation under 1203(e)(3), which applies to “[a]ny person
who willfully inflicted great bodily injury or torture in the perpetration of the crime of
which he or she has been convicted.” However, in Lewis, the court held that section
1203(e)(3) is “applicable not merely when great bodily injury is the result of a crime but,
rather, when the defendant intended to cause great bodily injury.” (Lewis, supra, 120
Cal.App.4th at p. 853, fn. omitted.) And section 273a, though it requires that a
defendant‟s conduct be willful in order to constitute a violation of the statute, does not
require that the defendant intend that conduct to result in great bodily injury. (People v.
Sargent (1999) 19 Cal.4th 1206, 1216.) Moreover, under section 273a “there is no
requirement that the actual result [of the defendant‟s conduct] be great bodily injury.”
(People v. Jaramillo (1979) 98 Cal.App.3d 830, 835.) Therefore, as both parties agree,
appellant‟s no contest pleas to the two section 273a charges did not necessarily establish
that in committing those offenses she acted with the intent necessary to make section
1203(e)(3) applicable. On this point the probation officer was incorrect.
       However, contrary to appellant‟s contention, the record does not compel the
conclusion that the court held the same incorrect belief. “[I]n light of the presumption on
a silent record that the trial court is aware of the applicable law, including statutory
discretion at sentencing, [the reviewing court] cannot presume error where the record
does not establish on its face that the trial court misunderstood the scope of [its]

                                              6
discretion.” (People v. Gutierrez (2009) 174 Cal.App.4th 515, 527.) The court did not
state appellant was presumptively ineligible for probation and, indeed, made no reference
to section 1203(e)(3), the “unusual case[]” provision of section 1203, subdivision (e), the
probation officer‟s conclusion on this point, or the parties‟ arguments regarding section
1203 at the sentencing hearing.6
       Appellant notes that at the outset of the sentencing hearing the court stated it had
“reviewed the [RPO] and will consider it,” and argues this constitutes an affirmative
showing that the court reached the same conclusion as did the probation officer with
regard to appellant‟s presumptive ineligibility for probation. We disagree. That the court
“consider[ed]” the RPO does not establish that the court accepted all of the probation
officer‟s conclusions. Indeed, the court specifically stated that it rejected the probation
officer‟s conclusion that appellant took advantage of a position of trust constituted a
circumstance in aggravation.
       Here, neither (1) the probation officer‟s conclusion that appellant was
presumptively ineligible for probation under section 1203(e)(3), nor (2) the defense
counsel‟s response to the probation officer, nor (3) the prosecutor‟s possible references to
section 1203(e)(3), whether considered singly or in combination, is enough to overcome




6       With respect to this last point we note the following: Defense counsel responded
directly to the probation officer‟s conclusion with regard to section 1203(e)(3), arguing
there was no evidence appellant inflicted great bodily injury and that in any event the
case was an “unusual” one within the meaning of section 1203(e)(3). The prosecutor
made no explicit reference to this statute, but made what might possibly be construed as
two references to section 1203(e)(3). First, referring to defense counsel‟s arguments, she
stated, “I don‟t believe necessarily this is an unusual case she‟s relied on.” Second, she
stated, “ ... in concluding, I would say that the interest[s] of justice are not served by grant
of probation.” The overarching theme of her argument was that the aggravating factors
outweighed all mitigating factors.


                                               7
the presumption that the court understood that section 1203(e)(3) was inapplicable.
Therefore, appellant‟s claim to the contrary must be rejected.
       Appellant‟s reliance on Lewis is misplaced. In that case, the defendant, like
appellant, was convicted of violating section 273a. Both the prosecutor, in its sentencing
memorandum, and the probation officer, in his report, asserted that the defendant was
presumptively ineligible for probation under section 1203(e)(3). In addition, “[i]t is
clear” the trial court reached the same conclusion. (Lewis, supra, 120 Cal.App.4th at
p. 851.) In denying probation and imposing a prison sentence, the trial court, in an
obvious reference to the provision of section 1203 that a person described in subdivision
(e) of the statute could be granted probation only in an “unusual case[] where the interests
of justice would best be served” by probation, “stated ... the circumstances were not such
it could find the case an unusual one for purposes of section 1203, subdivision (e)(3).”
(Lewis, at p. 851.)
       The Court of Appeal, noting “It seems to have been assumed by both parties, the
probation officer and the trial court that appellant was presumptively ineligible for
probation,” and “The trial court was not asked to find and did not state on the record
appellant intended to inflict great bodily injury on [the victim],” held that remand for a
new probation and resentencing hearing was necessary, “[g]iven the serious nature of the
offense, the lack of clarity in the law on this issue before this opinion and the importance
of a clear record ....” (Lewis, supra, 120 Cal.App.4th at p. 854.)
       Thus, in Lewis it was “clear” (Lewis, supra, 120 Cal.App.4th at p. 851) the trial
court incorrectly believed the defendant was presumptively ineligible for probation under
section 1203(e)(3), in large part because the trial court found that the case before it was
not an unusual one for purposes of section 1203(e)(3). Had the court not believed section
1203(e)(3) was applicable, there would have been no reason for the court to make such a
finding. The trial court‟s “unusual case” finding was enough to overcome the

                                              8
presumption that the court correctly understood the law. Here, by contrast and as
demonstrated above, where the trial court made no such finding or in any way indicated it
believed section 1203(e)(3) was applicable, the showing in the record was not sufficient
to overcome this presumption and thereby establish that the court was operating under an
incorrect understanding of the law.
       In addition, it cannot be said that here, as in Lewis, there was a “lack of clarity”
(Lewis, supra, 120 Cal.App.4th at p. 854) in the law at the time of sentencing with
respect the meaning of “willfully inflicted great bodily injury” in section 1203(e)(3). The
Lewis court was referring to the fact that prior to Lewis, no case had held that in order to
show that a defendant “willfully inflicted great bodily injury” under section 1203(e)(3), it
had to be shown that the defendant intended to inflict great bodily injury. However, at
the time of sentencing in the instant case, the trial court had the benefit of Lewis, which
had been decided more than five years previously. Lewis does not support appellant‟s
position.
Consideration of California Rules of Court, Rule 4.414 Factors
       Appellant contends the trial court failed to consider the rule 4.414 “[c]riteria
affecting the decision to grant or deny probation .…” It appears appellant bases this
claim, in turn, on the following claims: “[t]he record contains no evidence that either the
probation department or the court considered [the rule 4.414 factors]”; “[s]everal of the
factors militate for a grant of probation”; and “[t]he court appeared to make a single
criterion,” viz., the seriousness of the offenses, “determinative.” Appellant‟s claim that
the court failed to consider the factors listed in rule 4.414 is without merit.
       As indicated above, the record shows the following: The prosecutor submitted a
brief in which, making specific reference to probation criteria set forth in rule 4.414, she
argued that probation should be denied. At the hearing, defense counsel addressed the
prosecutor‟s arguments as to two of these criteria, arguing that appellant did not take

                                               9
advantage of a position of trust or confidence (see rule 4.414(a)(9)) and that the victims
were not “particularly vulnerable” (see rule 4.414(a)(3)). In stating its reasons for
denying probation, the court specifically referred to both points.
       On appeal, it is the appellant‟s burden to affirmatively demonstrate error. (People
v. Battle (2011) 198 Cal.App.4th 50, 62 (Battle); rule 4.409 [“Relevant criteria
enumerated in [the rules of court] ... will be deemed to have been considered unless the
record affirmatively reflects otherwise”].) None of the factors cited by appellant
affirmatively establishes the court was unaware of and/or failed to consider the factors set
forth in rule 4.414. Indeed, as indicated above, the record suggests quite the opposite.
Appellant has not met her burden of affirmatively demonstrating the error she asserts.
Trial Court’s Understanding of the Full Scope of its Discretion
       Appellant argues, “To the extent the record reveals that the court here perhaps
understood that probation was an option, it does not appear from the record that the court
considered the full scope of its discretion in granting probation, including its ability to
impose conditions on probation, such as imprisonment „in a county jail for a period not
exceeding the maximum time fixed by law in the case[] (§ 1203.1, subd. (a)) .…” There
is no merit to this contention.
       There was no mention at the sentencing hearing of confinement in county jail as a
condition of probation, and nothing in the record to suggest the court did not understand
the “full scope” of its discretion with regard to this condition of probation, other
conditions of probation or any other matter. Therefore, appellant‟s claim fails. (People
v. Gutierrez, supra, 174 Cal.App.4th at p. 527 [“in light of the presumption on a silent
record that the trial court is aware of the applicable law, including statutory discretion at
sentencing, we cannot presume error where the record does not establish on its face that
the trial court misunderstood the scope of that discretion”]; Battle, supra, 198
Cal.App.4th at p. 62.)

                                              10
Claim of Absence of Services
       It appears appellant also contends the court abused its discretion in denying
probation because, she asserts, the California Department of Corrections and
Rehabilitation (CDCR) offers no services for prison inmates related to parenting skills
and child abuse.
       It appears appellant bases this claim on a discussion at the sentencing hearing of
the availability of programs for addressing parenting skills and child abuse issues, at the
conclusion of which the probation officer, in response to a question from the court as to
whether he (the officer) had “any knowledge in regard to [CDCR‟s] treatment programs,”
responded, “So I don‟t have a lot of reference points as to treatment options in the State‟s
facilities. I would believe that as they have many programs for substance abuse and
anger management, I would have to assume that they have some manner of treatment for
child abuse while in custody.” From that discussion appellant concludes, “The record
shows no one”—including, presumably, the court—“knew whether or not appellant
would receive any services related to child care or parenting skills while [in prison] .…”
       Appellant cites no authority for the proposition that the absence of certain services
in state prison renders a denial of probation an abuse of discretion. However, we need
not address the merits of such an argument because the record provides no support for
appellant‟s claim that child-abuse-prevention counseling, or any other rehabilitative
program for that matter, is unavailable to appellant in prison. (Battle, supra, 198
Cal.App.4th at p. 62 [error must be affirmatively shown].)
Weighing of Aggravation and Mitigating Factors
       Finally, appellant contends the court abused its discretion in denying probation
because, she asserts, the factors militating in favor of a grant of probation, such as
appellant not having any prior criminal history, outweighed the factors militating against
a grant of probation.

                                             11
       In support of this contention, she first argues that the court‟s apparent reliance on
the seriousness of the instant offenses was improper because although the injuries
inflicted on the victims were serious, they were not as serious—indeed, according to
appellant, “they do not compare”—with other instances of child abuse. (See rule
4.414(a)(1) [criteria affecting the decision to grant or deny probation include “The nature,
seriousness, and circumstances of the crime as compared to other instances of the same
crime”] (Italics added).) Under rule 4.414(a)(1), appellant argues, “this was not an
egregious example of child abuse/neglect.”
       We disagree. The record shows that the two extremely young victims suffered
multiple broken bones and other serious injuries. We cannot, and do not, second-guess
the trial court‟s implicit finding that appellant‟s conduct was more serious than other
offenses under same statute. (See People v. Weaver (2007) 149 Cal.App.4th 1301, 1317
(Weaver) [approving a trial court‟s implicit conclusion that “„other instances‟” of
vehicular manslaughter while intoxicated did not involve the same “egregious
circumstances” evident in the case before it—“and we cannot presume otherwise”].)
       Appellant also challenges the trial court‟s consideration of the victims‟
vulnerability as a factor in denying probation. She asserts “the element of vulnerability is
inherent in [section 273a],” and “[t]he statute does not contemplate that dependent
children, regardless of age, are more or less vulnerable by virtue of their chronological
age.” We disagree.
       As indicated above, rule 4.414(a)(3) lists “The vulnerability of the victim” among
the criteria affecting the decision to grant or deny probation, and rule 4.409 provides,
“Relevant criteria enumerated in these rules must be considered by the sentencing
judge.…” (Italics added.) There is nothing in section 273a that allows a court to ignore
the mandate of rule 4.409, or that in any way precludes a court from denying probation
based on the unremarkable conclusion that an infant, unlike an older child, is entirely

                                             12
dependent on others to fulfill his or her basic needs for food, clothing, and shelter, has no
ability to escape or evade acts of abuse or endangerment whether those acts are
intentional or the result of negligence, and is therefore particularly vulnerable.
“Circumstances in aggravation,” which sentencing courts consider in making a variety of
sentencing choices, include whether “The victim was particularly vulnerable.” (Rule
4.421(a)(3).) In determining the applicability of this circumstance where a defendant is
being sentenced for an “„age range offense,”‟ “[e]xtreme youth within a given age range
might also be viewed as making a victim „particularly vulnerable‟ in relation to others
within the age range .…” (People v. Ginese (1981) 121 Cal.App.3d 468, 477.) The same
applies to a determination of the applicability of rule 4.414(a)(3).
       „“The grant or denial of probation is within the trial court‟s discretion and the
defendant bears a heavy burden when attempting to show an abuse of that discretion.
[Citation.]‟ [Citation.] „In reviewing [a trial court‟s determination whether to grant or
deny probation,] it is not our function to substitute our judgment for that of the trial court.
Our function is to determine whether the trial court‟s order granting [or denying]
probation is arbitrary or capricious or exceeds the bounds of reason considering all the
facts and circumstances.‟ [Citation.]” (Weaver, supra, 149 Cal.App.4th at p. 1311.)
“California courts have long held that a single factor in aggravation is sufficient to justify
a sentencing choice .…” (People v. Brown (2000) 83 Cal.App.4th 1037, 1043.)
       When we apply the forgoing principles to the instant case, where the record
supports at least two factors supporting the denial of probation, we conclude the denial of
probation was well within the court‟s discretion.
                                       DISPOSITION
       The judgment is affirmed.




                                              13
