Filed 10/17/14 P. v. Williams CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E060134

v.                                                                       (Super.Ct.No. FSB1300161)

JAMES AMBROSIA WILLIAMS,                                                 OPINION

         Defendant and Appellant.


         APPEAL from the Superior Court of San Bernardino County. Lorenzo R.

Balderrama, Judge. Affirmed.

         Thomas Owen, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

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

Tyler, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       A jury convicted defendant James Ambrosia Williams of child abuse (count 1;

Pen. Code, § 273a, subd. (a)).1 The jury also found true an allegation defendant

personally inflicted great bodily injury on the victim, a child under the age of five

(§ 12022.7, subd. (d)). The trial court found true allegations defendant had suffered a

prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), a prior serious

felony conviction (§ 667, subd. (a)(1)), and two prior prison terms (§ 667.5, subd. (b)).

The court sentenced defendant to an aggregate term of imprisonment of 22 years. On

appeal, defendant contends the court erred in using the same factor to impose sentence on

both the great bodily injury enhancement and the aggravated term on count 1. We affirm.

                                   FACTUAL HISTORY

       On December 28, 2012, S.W. allowed defendant, the father of one of her children,

to take the victim (born 2011), another one of her children, for a week so that defendant

could spend some time with the victim. Defendant said he was taking the victim to his

aunt’s house. When the victim left with defendant, he had no injuries other than a scratch

on his head.

       Defendant was supposed to bring the victim back on January 4, 2013, but failed to

do so. S.W. called defendant’s aunt who said defendant was not there. At some point,

S.W. spoke with defendant who said he was going to keep the victim for another week.

On January 7, 2013, Child Protective Services (CPS) called S.W. and told her the victim

was in the hospital. S.W. went to the hospital to see the victim. At the hospital,


       1   All further statutory references are to the Penal Code unless otherwise indicated.

                                              2
defendant informed her the victim had been burned on a space heater.

       Defendant’s girlfriend, S.C., testified defendant came to her apartment with the

victim on December 28, 2012. They stayed with her for a week. When they first arrived,

the victim had no discernible injuries. S.C. told detectives the victim’s hand was burned

on New Year’s Eve. However, at trial she testified she believed the victim was injured

on January 4, 2013.

       S.C. testified she made fried tacos using a skillet and grease. After she ate, she

went to lie down. Defendant was feeding the victim. She heard defendant telling the

victim to finish his food. At some point, S.C. heard the victim scream. When she woke

up the next day, she noticed the victim’s hand was burned.

       The victim’s arm, from hand to shoulder, was swollen. When S.C. cleaned the

burn, the skin came off the victim’s arm. Defendant told her the victim had been burned

by sleeping too closely to the space heater. S.C. told defendant to take the victim to the

doctor. Defendant said he first had to find out if S.W. had an open CPS case; however,

he could not call her because his cell phone was not working. They took the victim to the

hospital three days later.

       The victim was treated at the Arrowhead Regional Medical Center’s burn unit on

January 7, 2013. The victim had a bruise on his cheek. The victim had also sustained a

burn to the back of his hand: “This is a full thickness third-degree burn, which means

that the injury has basically taken the depths of the epidermis, the dermis, and down to

the fat of the hand.” “It just means that this is a very deep injury. Generally it’s

something you see with prolonged contact.”

                                              3
       The victim “underwent surgical excision, which means we took him to the

operating room and cut off all of the dead tissue . . . .” “[W]hen we debrided the burn [it]

was actually [down] to the tendons on the back of his hand . . . [so] we had to stop

because . . . we were not able to remove all of that tissue without getting into the

tendons.” On January 22, 2013, medical personnel were able to successfully complete a

skin graft with tissue taken from the victim’s thigh.

       “[W]ith something that is this deep and the prolonged contact that would be

needed to cause something like this, I can only imagine the pain at the time that this

occurred[]” would be extreme. The pain was described as “excruciating” and a “ten out

of ten.” The victim was admitted to the hospital on January 7, 2013, and discharged 21

days later.

       The injury was inconsistent with contact with a space heater. The injury would

have had to occur “from a prolonged exposure to a flat, very hot surface.” Holding a

skillet on the victim’s hand would be consistent with his injuries.

       Defendant testified the victim had the bruise on his face the day defendant picked

him up. The burn occurred around January 4, 2013. The victim was sleeping about a

foot and a half from the space heater. The victim woke up crying. At first defendant

thought the victim had sustained a spider bite; the wound was swollen, but did not look

burned. However, defendant later determined it was a burn which must have come from

the heater. Defendant treated the wound. Defendant told S.C. no one would believe the

heater burned the victim. Defendant took the victim to the hospital on January 6, 2014,

when his brother told him he should do so.

                                              4
                                       DISCUSSION

        Defendant contends the court impermissibly imposed both the enhancement and

the aggravated sentence on count 1 based on dual use of the fact that the victim sustained

great bodily injury. We disagree.

        “Although a single factor may be relevant to more than one sentencing choice,

such dual or overlapping use is prohibited to some extent. For example, the court

generally cannot use a single fact both to aggravate the base term and to impose an

enhancement, nor may it use a fact constituting an element of the offense either to

aggravate or to enhance a sentence. [Citations.]” (People v. Scott (1994) 9 Cal.4th 331,

350.)

        “‘[C]omplaints about the manner in which the trial court exercises its sentencing

discretion and articulates its supporting reasons cannot be raised for the first time on

appeal.’ [Citation.] ‘Included [within the (forfeiture) doctrine] are cases in which the

stated reasons allegedly do not apply to the particular case, and cases in which the court

purportedly erred because it double-counted a particular sentencing factor, misweighed

the various factors, or failed to state any reasons or give a sufficient number of valid

reasons.’ [Citation.]” (People v. De Soto (1997) 54 Cal.App.4th 1, 8.) “‘Improper dual

use of the same fact for imposition of both an upper term and a consecutive term or other

enhancement does not necessitate resentencing if “[i]t is not reasonably probable that a

more favorable sentence would have been imposed in the absence of the error.”’

[Citation.]” (People v. Osband (1996) 13 Cal.4th 622, 728.)



                                              5
       First, defendant forfeited the issue by failing to raise it below. Second, to the

extent the court erred, we find the error harmless. The court expressly found the

following aggravating factors in the instant case: the crime involved great bodily harm,

the victim was highly vulnerable, defendant’s prior convictions and sustained juvenile

delinquency petitions were numerous and increasing in seriousness, and defendant’s prior

performance on probation and parole were unsatisfactory. The court did not find any

circumstances in mitigation.

       Here, the juvenile court had sustained four separate juvenile delinquency petitions

alleging defendant had committed burglary, petty theft, robbery, attempted carjacking,

and taking a vehicle without the owner’s consent. The juvenile court had revoked

defendant’s prior grants of probation and parole. Defendant had incurred convictions as

an adult for twice driving without a license, possession of a firearm by a prohibited

person, burglary, and petty theft. Defendant was on misdemeanor probation when he

committed the instant offense. The probation officer recommended a sentence of 24

years’ imprisonment. The court struck imposition of punishment on defendant’s two

prior prison terms. On this record, there is no reasonable probability the court would

have imposed a more favorable sentence absent its apparent reliance on defendant’s

infliction of great bodily injury. (People v. Guitierrez (1992) 10 Cal.App.4th 1729, 1735-

1736 [Error harmless where “[o]ther aggravating circumstances, recited by the trial court,

support the court’s sentence choice.”]; People v. Black (2007) 41 Cal.4th 799, 813 [One

legally sufficient aggravating factor justifies imposition of the upper term.].)



                                              6
                                  DISPOSITION

      The judgment is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                CODRINGTON
                                                             J.

We concur:


RAMIREZ
                      P. J.


McKINSTER
                         J.




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