Filed 11/13/14 P. v. Wilder CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----




THE PEOPLE,                                                                                  C075606

                   Plaintiff and Respondent,                                     (Super. Ct. No. 62114530)

         v.

DENISE MARIE WILDER,

                   Defendant and Appellant.




         Defendant Denise Marie Wilder entered a negotiated plea of no contest to two
counts of child endangerment (Pen. Code, § 273a, subd. (a);1 counts one and two) and
admitted, in connection with count one, that she personally inflicted great bodily injury
resulting in death (§§ 12022.7, subd. (d), 12022.95), in exchange for a sentencing lid of




1   Further undesignated statutory references are to the Penal Code.

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10 years four months in state prison. The court denied defendant’s request for probation
and sentenced her to the lid.
       Defendant appeals. Her sole contention is that the trial court abused its discretion
in denying probation. We disagree and shall affirm the judgment, as modified to correct
an error in conduct credit computation.
                 FACTUAL AND PROCEDURAL BACKGROUND
       Factual Basis for the Pleas
       Defendant took her two daughters, five-year-old K.W. and two-year-old M.W., to
her parents’ home while her parents were away on vacation. While there (from Sunday,
April 1, 2012, until Wednesday, April 4, 2012), defendant drank alcohol and became
intoxicated and unable to care for her children. The girls had only limited food and they
drank alcohol. Friends and family were unable to contact defendant for days. When
located the evening of April 4, 2012, defendant’s blood-alcohol content was 0.23 percent.
M.W. was dead from acute alcohol toxicity with a 0.21 vitreous alcohol level. K.W. was
sick and had vomited several times.
       Probation Report
       The probation report described the events of early April in tragic detail.
Defendant was awake, wearing only socks and underwear, and “extremely intoxicated”
when located by a friend at her parents’ house. The children were found in bed together;
K.W. was lying next to her little sister’s dead body and was “freaking out.” She was
naked except for a shirt, crying while explaining that she had wet the bed and defendant
“took her clothes off because they were wet.” Defendant was unemotional and, although
standing and watching, showed no signs of being distraught as the responders attempted
to revive her dead child.
       There were “four large bottles of distilled spirits,” open and empty, on the kitchen
counter. K.W. told the responders that “her mommy was making [the girls] sleep all day”
and that “her mommy kept telling her to ‘shut up, and be quiet and go back to sleep.’ ”

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She added defendant had given her “bad tasting water” that made her throw up. At
several points during K.W.’s ordeal, defendant had been asleep and K.W. had been
unable to wake her; K.W. also tried (and failed) to wake up her little sister, who was “so
cold.”
         Defendant was interviewed later that same day. She told the police that she and
her daughters had “hung out” from their arrival at her parents’ house until the day the
police came, and had “watched television, ate, played, read books.” She then
acknowledged “with little emotion” that she had “lost [her] daughter.” She did not
acknowledge that she had been drinking except that she admitted she had drank rum the
night before she was found (Tuesday night), adding that all but one of the empty alcohol
bottles in the house had been left there by her parents. When specifically asked when she
last drank alcohol, she admitted she had “two drinks” on Sunday evening when she and
the girls first arrived at her parents’ house. She continued to deny drinking at all on
Monday, and would not tell the police when she had last fed her daughters. K.W. told of
eating nothing but dry cereal for three days. M.W.’s autopsy determined she had suffered
from acute malnutrition as well as acute ethanol toxicity at the time of her death.
         A year before her daughter’s death, defendant had been assessed “for drug or
alcohol dependency issues relating to her divorce and child custody dispute.” The
assessor found that “mother’s lifestyle includes social activities involving excessive
alcohol consumption” and recommended that defendant “not consume alcohol 24 hours
prior to and during parenting time.”
         The report noted that defendant was presumptively ineligible for probation and
found no unusual circumstances, noting that although defendant had no prior record, she
was neither youthful nor aged. It added that the nature of defendant’s crimes was more
serious than typical child endangerment--as defendant’s actions here resulted in the death
of her child--and pointed out the extreme vulnerability of the victims due to their young
age. The report also noted the infliction of both physical and emotional injury to both

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children, the degree of monetary loss (given the loss of a young life), defendant’s position
of trust, and that defendant was an active participant in the crimes, “culpable for her own
actions.” Among the factors reported that related to defendant were that she had no prior
criminal record, was willing to comply with terms of probation--although her ability to
comply was questionable due to her “history of alcohol consumption”--and was
remorseful.
        Circumstances listed in aggravation under California Rules of Court, rule 4.4212
included that defendant had inflicted great bodily injury resulting in death, that the
victims were vulnerable, and that defendant took advantage of a position of trust. The
sole circumstance in mitigation found by the probation officer was defendant’s lack of a
prior record. The report recommended the sentencing lid of 10 years four months.
        In a supplemental report, the probation officer noted that less than two months
before the current offenses, defendant was arrested for driving under the influence. She
had been involved in a collision. When interviewed, she told an officer that she had
consumed a fifth of vodka throughout the day. Her blood-alcohol content was 0.07
percent.
        Sentencing
        Defendant filed a sentencing brief which referenced an evaluation of defendant by
a doctor, Eugene Roeder. Dr. Roeder opined that “the combination of [defendant’s]
propensity for alcohol abuse, her heightened sensitivity to alcohol because of her gastric
bypass surgery and her combining alcohol with Paxil resulted in a situation in which
[defendant] literally did not know what she was doing, she drank to the point of
intoxication and blackout and remained at this level for several days, and as a result her
neglect of her parental responsibilities resulted in her daughter’s death.” The brief argued




2   Further undesignated rule references are to the California Rules of Court.

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for a probationary sentence, arguing that “[t]he only explanation for the events that [led]
to [M.W.’s] death is that [defendant], after months of constant family law battles and the
resulting mental and emotional trauma, finally had something amounting to a psychotic
break when she cleaned out her ex-husband’s belongings.” The brief discussed the
criteria in rule 4.414, comparing the facts in the instant case with those in other cases,
defendant’s lack of a prior criminal record, her acknowledgement of her drinking
problem, her positive prognosis for staying sober according to Dr. Roeder, defendant’s
remorse, and that the “people who know [defendant] best describe her as a kind and
loving mother, one who would never do anything to harm her children.” Defense counsel
submitted numerous documents associated with the family law case (including the report
of a mediator who expressed concerns about defendant’s risk for alcohol consumption
while parenting).
       The People requested the sentencing lid, arguing the case was an aggravated child
abuse case given defendant’s intoxication and failure to provide care for her two children
for three days, resulting in her children’s use of defendant’s alcohol and causing M.W.’s
death and K.W.’s illness.
       At the sentencing hearing, the trial court began by indicating that defendant’s case
“could be an aggravated case that could require more time in state prison than what was
agreed upon.” It commented on many of the facts of the case from the probation report
detailed ante, as well as the mediator’s report, concluding that defendant “was placed on
notice” as she had been “ordered by the court not to use alcohol in the presence of the
children,” as well as “warned about the risks and dangers of using alcohol in front of the
children.” It found that defendant had disregarded her children’s safety to the point of
meeting “almost every element of implied malice.” Ultimately, the court agreed to go
forward with sentencing pursuant to the plea agreement, indicating that it had received
and read the probation report.



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       After hearing from all witnesses and the parties, the trial court observed that the
children “were forced to drink a poison because [defendant] was unable to give them any
kind of nourishment or water,” adding, “And I don’t consider for a moment an excuse or
an accident that [defendant] was intoxicated. She had been warned . . . repeatedly about
the effects of alcohol on these children. And she chose to disregard that.”
       The court also rejected defendant’s claim that she had blacked out at her parents’
house, indicating that defendant had “lied to the investigators” and noting that she had
recalled and recounted some details of what had happened when first interviewed by the
police, and even had claimed the empty alcohol bottles were left on the counter by her
parents. The court emphasized that it did “not believe” defendant’s claim of memory
loss. Without making explicit findings as to probation eligibility and aggravating or
mitigating factors, the court denied probation, announcing the case was “absolutely
aggravated” and that it “would not grant probation given the facts and allegations and the
evidence that I have gone over here today.” It then imposed the sentencing lid of 10
years four months--the midterm of four years for count one plus five years for the
enhancement and a consecutive one-third the midterm (16 months) on count two.
                                      DISCUSSION
       Defendant contends the trial court abused its discretion when it “refused to find
unusual circumstances” and, accordingly, denied her request for probation. We disagree.
       In entering her plea, defendant admitted a great bodily injury enhancement which
rendered her ineligible for probation unless the court determined that her case was an
“unusual” one where the “interests of justice” would be served by a grant of probation.
(§ 1203, subd. (e)(3).) In determining whether a case is an unusual one, the court
considers but is not bound by the mitigating factors in rule 4.413(c).
       Rule 4.413 provides, in pertinent part, that:
       “(b) If the defendant comes under a statutory provision prohibiting probation
‘except in unusual cases where the interests of justice would best be served,’ or a

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substantially equivalent provision, the court should apply the criteria in (c) to evaluate
whether the statutory limitation on probation is overcome; and if it is, the court should
then apply the criteria in rule 4.414 to decide whether to grant probation.
       “(c) The following facts may indicate the existence of an unusual case in which
probation may be granted if otherwise appropriate:
       “(1) A fact or circumstance indicating that the basis for the statutory limitation on
probation, although technically present, is not fully applicable to the case, including:
       “(A) The fact or circumstance giving rise to the limitation on probation is, in this
case, substantially less serious than the circumstances typically present in other cases
involving the same probation limitation, and the defendant has no recent record of
committing similar crimes or crimes of violence; and
       [¶] . . . [¶]
       “(2) A fact or circumstance not amounting to a defense, but reducing the
defendant’s culpability for the offense, including:
       “(A) The defendant participated in the crime under circumstances of great
provocation, coercion, or duress not amounting to a defense, and the defendant has no
recent record of committing crimes of violence;
       “(B) The crime was committed because of a mental condition not amounting to a
defense, and there is a high likelihood that the defendant would respond favorably to
mental health care and treatment that would be required as a condition of probation; and
       “(C) The defendant is youthful or aged, and has no significant record of prior
criminal offenses.” (Emphasis added.)
       The language “unusual case” and “interests of justice” as used in section 1203,
subdivision (e) is narrowly construed and, applying the factors in rule 4.413, limits a
grant of probation to a case where the crime is either atypical or the defendant’s moral
blameworthiness is reduced. (People v. Stuart (2007) 156 Cal.App.4th 165, 177-178;
People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1229.) If the court

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determines that the case is an unusual one, the court then decides whether to grant
probation based on the criteria in rule 4.414. (People v. Superior Court (Du) (1992)
5 Cal.App.4th 822, 830.) The trial court’s determination whether the case is an unusual
one, like the court’s determination whether to grant probation, is reviewed for an abuse of
discretion. (Id. at p. 831.)
       Defendant argues that her offense was not “more egregious than other child abuse
or neglect cases where great bodily injury is proven or cases which involve a probation
limitation,” but that is not the test. We have described the relevant considerations ante;
they include whether the circumstances surrounding defendant’s criminal conduct were
“substantially less serious than the circumstances typically present in other cases
involving the same probation limitation.” (Rule 4.413(c)(1)(A), emphasis added.)
Defendant does not (and cannot) even attempt to argue in her briefing that her crimes
against her children were substantially less serious than other child abuse cases
concerning great bodily injury or otherwise involving a probation limitation. The trial
court found that the case was “absolutely aggravated” which reflected its finding that
defendant’s crimes were not substantially less serious than other similar cases. That
assessment was supported by the record.
       Defendant also argues the “totality of the circumstances” and her “out of
character” behavior warranted probation, in an apparent attempt to argue her case
presented unusual circumstances, but we have set forth the favored criteria for
consideration ante, and these are not among them. If defendant means to argue reduced
culpability pursuant to rule 4.413(c)(2)(A) through (C), she would need to show
“provocation, coercion, or duress” or a “mental condition” and a “high likelihood that
[she] would respond favorably to . . . treatment . . . ” or that she was “youthful or aged”
and had no prior record.
       The record reflects that the trial court rejected defendant’s argument that she was
under duress or had any other mental condition at the time of her crime, noting instead

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that she had “lied” and the court did “not believe” her. Given that the record showed
defendant had been warned about her tendency to drink to excess and told to refrain from
drinking alcohol while parenting her children, the trial court could reasonably come to
this conclusion and reject defendant’s argument that her culpability was somehow
significantly reduced by the combination of factors which she now argues again on
appeal. We see no abuse of discretion.
       Defendant also makes a number of arguments for probation based on rule 4.414.
Because the trial court did not err when it found defendant’s case was not unusual and did
not merit consideration for probation, we need not address these arguments. Similarly,
although defendant fleetingly claims her due process rights were violated, she does not
separately head and argue the due process issue and we decline to consider it. (Rules
8.360(a), 8.204(a)(1)(B); People v. Roscoe (2008) 169 Cal.App.4th 829, 840.)
       We have located an error not noted by either party which needs correction. The
trial court awarded 545 actual days and 544 conduct days pursuant to section 4019 for a
total of 1,089 days of presentence custody credits. Defendant’s conduct credits, however,
were limited to 15 percent pursuant to section 2933.1 because she was charged with and
admitted a great bodily injury enhancement. (§§ 667.5, subd. (c)(8), 12022.7.) Thus,
defendant was entitled to 81 days of conduct credits pursuant to section 2933.1 for a total
of 626 days of presentence custody credits. We will order the judgment modified
accordingly.3




3 In the interest of judicial economy, we have resolved this error without first requesting
supplemental briefing. Any party claiming to be aggrieved may petition for rehearing.
(Gov. Code, § 68081.)

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                                     DISPOSITION
       The judgment is modified, reducing conduct credits to 81 days pursuant to
section 2933.1 for a total of 626 days of presentence custody credits. The trial court is
directed to prepare an amended abstract of judgment and to forward a certified copy to
the Department of Corrections and Rehabilitation. As modified, the judgment is
affirmed.




                                                        DUARTE                , J.



We concur:



      NICHOLSON             , Acting P. J.



      HOCH                  , J.




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