Filed 12/20/13 P. v. Renteria CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B243266

                         Plaintiff and Respondent,                   (Los Angeles County
                                                                      Super. Ct. No. TA120577)
                   v.

JESUS G. RENTERIA,

                         Defendant and Appellant.



         APPEAL from the judgment of the Superior Court of Los Angeles County.
Laura R. Walton, Judge. Affirmed.

         Jolene Larimore, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Tannaz
Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.


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       The sole question on appeal is whether the trial court abused its discretion in
denying probation to defendant and appellant Jesus G. Renteria. Defendant argues the
court erred in failing to consider a grant of probation in the interests of justice. We
conclude defendant has failed to establish reversible error in the court’s sentencing
choices, and therefore affirm.
       In October 2011, defendant and his wife brought their nine-month-old son to the
emergency room with a swelling on the side of his head. A CT scan was performed and
it was determined the infant had suffered a skull fracture and a subdural hematoma. The
parents denied knowing what caused the swelling. A hospital social worker and law
enforcement were called. During an interview with the investigating deputy sheriff,
defendant gave several different explanations for how his son might have been injured,
and then admitted he hit his son with a toy microphone containing two C batteries.
Defendant said he was tired, the baby would not stop crying and he hit him “pretty hard”
once with the microphone.
       Defendant was charged with one count of felony child abuse (Pen. Code, § 273a,
subd. (a)).1 It was also specially alleged defendant personally inflicted great bodily
injury on a child under the age of five (§ 12022.7, subd. (d)), and personally used a
dangerous weapon in the commission of the offense, the microphone (§ 12022,
subd. (b)(1)). Following trial by jury, defendant was convicted of the child abuse count
and the special allegations were found true.
       The sentencing hearing was held on August 14, 2012. At the outset of the hearing,
the prosecutor explained she had not filed a written sentencing memorandum, but stated
the case is “a mandatory state prison case based on the charges and allegations” with a
potential maximum sentence of 13 years.
       The court then allowed defendant to present numerous witnesses attesting to his
general character and his lack of any criminal record or history of violence. The



1      All further undesignated section references are to the Penal Code.


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witnesses included, among others, defendant’s employer who spoke of defendant’s good
work ethic and reliability as an employee; his siblings, who spoke of their admiration for
defendant who helped raised them; his stepdaughter, who said defendant had never hurt
her and she does not believe he ever would; and his wife, who attested to how much
defendant is needed to help with the family and that he is a good man who does not argue
or get angry easily.
       At the conclusion of the witness statements, defense counsel reiterated that
defendant had no prior record. Defense counsel stated his “recommendation” to the court
was for a grant of formal probation for five years, 52 weeks of parenting classes and any
other condition of probation deemed appropriate by the court.
       The court then heard additional argument from the prosecutor. She emphasized
the victim was just nine months old, vulnerable, and suffered a grievous injury at the
hands of his father. The prosecutor reiterated defendant was “not eligible for probation”
and that the “law require[d] the Court to sentence him to state prison.” The prosecutor
argued for imposition of the midterm on both the substantive offense and the great bodily
injury enhancement.
       When the court asked if there was anything further, both the prosecutor and
defense counsel said no. Defense counsel did not object to the prosecutor’s assertions the
court was required to sentence defendant to prison or that defendant was ineligible for
probation. Nor does the record reflect any objection by the defense to the probation
report which also stated defendant was ineligible for probation.
       In sentencing defendant, the court stated, in part, as follows: “The district attorney
is correct in this case. The defendant having been convicted of the charge of child abuse
with the additional allegations of causing great bodily injury on a child under five years
old and including the weapons allegation is ineligible for probation by law. [¶] I could
not give him probation if I wanted to because he is ineligible by law.” There is no
objection in the record by defense counsel to the court’s statement that defendant was
ineligible for probation.



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       The court acknowledged defendant’s lack of any criminal record and the
numerous character witnesses who spoke favorably of him as mitigating factors. But, the
court went on to emphasize that the victim was a vulnerable infant and, while the baby
had apparently recovered without suffering any permanent damage, he had nonetheless
suffered a “horrific” injury. On balance, the court determined those factors to be
significant and imposed the midterm of four years on the child abuse count. (§ 273a.)
The court, in its discretion, did not find the mitigating factors sufficient to warrant
imposition of the low term. As for the great bodily injury on a child enhancement
(§ 12022.7, subd. (d)), the court imposed the low term of four years, plus an additional
one-year term for the personal use of a dangerous weapon enhancement (§ 12022,
subd. (b)(1)). Defendant was sentenced to an aggregate state prison term of nine years.
       On appeal, defendant argues the prosecutor incorrectly asserted defendant was
ineligible for probation when defendant was in fact only presumptively ineligible.
Defendant contends, by law, the court had the discretion to consider a grant of probation
if it found “unusual circumstances” and that the interests of justice warranted such
disposition.
       Defendant is correct that one who is convicted of child abuse under section 273a
may be granted probation in the court’s discretion, but if probation is chosen as the
disposition, the statute mandates certain minimum conditions. (§ 273a, subd. (c).) And,
although the great bodily injury enhancement was found true, this case was governed by
section 1203, and not 1203.075 which bars probation where great bodily injury is
imposed in connection with certain enumerated felonies (a violation of section 273a not
being one of them).
       Section 1203, subdivision (e) makes defendants who are found to have inflicted
great bodily injury presumptively ineligible for probation, but provides the sentencing
court with the discretion to grant probation in unusual cases in the interests of justice.
(Ibid. [“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 following
persons: [¶] . . . [¶] . . . Any person who willfully inflicted great bodily injury or torture


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in the perpetration of the crime of which he or she has been convicted.”]; see also Cal.
Rules of Court, rules 4.413 and 4.414.)
       Respondent argues defendant forfeited the argument by failing to argue for
probation, or make an express objection to the assertion that defendant was ineligible for
probation. Defense counsel was obligated to advocate for the permissible sentencing
options, and to clarify that the court had the discretion to consider a grant of probation if
it found “unusual circumstances” warranted probation. (People v. Scott (1994) 9 Cal.4th
331, 353 [while “the court is required to impose sentence in a lawful manner, counsel is
charged with understanding, advocating, and clarifying permissible sentencing choices at
the hearing”].) However, it matters not whether defendant forfeited the claim for appeal,
because the record plainly shows no reversible error.
       The court was presented with extensive testimony regarding defendant’s lack of a
criminal record, his work history, and the other evidence of mitigating factors. This is the
same evidence upon which defendant argues the court could have found “unusual
circumstances” and a proper basis for granting probation in the interests of justice
pursuant to section 1203, subdivision (e)(3). However, despite having heard that
evidence, the court was not persuaded there were sufficient mitigating factors even to
warrant the low term prison sentence. Instead, the court selected the midterm,
emphasizing its grave concerns about the seriousness of the injuries sustained by a nine-
month-old baby. It is utterly unreasonable to assume the trial court might have found that
same evidence sufficient to show “unusual circumstances” warranted probation.
                                      DISPOSITION
       The judgment is affirmed.


                                                          GRIMES, J.
We concur:


              RUBIN, Acting P. J.                         FLIER, J.



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