P. v. Dishmon
Filed 7/10/13 P.
v. Dishmon CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
CLIFFORD DISHMON,
Defendant and Appellant.
D062205
(Super. Ct. No. SCD234692)
APPEAL from
a judgment of the Superior Court of
County, Charles R. Gill, Judge.
Affirmed.
Carl M.
Hancock for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, William M. Wood and Ifeolu E.
Hassan, Deputy Attorneys General, for Plaintiff and Respondent.
Clifford
Dishmon pled guilty to felony child abuse and admitted to inflicting great
bodily injury on a child under the age of five.
At the time of the plea, the court indicated it would place a seven-year
"lid" on Dishmon's sentence.
However, after considering Dishmon's remarks at the
the indicated sentence and stated it intended to impose a nine-year term. The court gave Dishmon the opportunity to
withdraw his guilty plea based on the new intended sentence. Dishmon declined to withdraw his plea. The court then imposed the nine-year sentence.
On appeal,
Dishmon contends the trial court abused its discretion in sentencing him to
nine years because it was greater than the initial seven-year-maximum indicated
sentence. We reject this contention and
affirm.
FACTUAL AND
PROCEDURAL BACKGROUND
name="_ftnref1" title="">[1]
Dishmon
punched his five-month-old son, causing a tear in his liver and rendering him
unconscious. Dishmon then forcefully
shook the infant. About one hour later,
Dishmon called 911. The child was
diagnosed with a subdural hematoma, bilateral retinal hemorrhages in his eyes,
and a lacerated liver. Dishmon initially
told police that his son had fallen from a changing table, but later admitted
punching and shaking the baby.
Dishmon was
charged with felony child abuse and a sentence enhancement for inflicting great
bodily injury on a child under the age of five.
Dishmon pled guilty to the charge and admitted the alleged
enhancement. Dishmon signed the plea
form which stated there were "no deals" from the prosecutor but that
the court had indicated a seven-year "Lid" on the sentence. The plea form also stated Dishmon
"understand[s] that I may receive" a "12 years
imprisonment" for the offense. At
the hearing, the court repeated the seven-year-lid indicated sentence, but
Dishmon also verbally acknowledged the maximum sentence could be 12 years.
After the
plea, Dishmon underwent a psychological evaluation by psychologist Dr. Erin
Ferma. Dr. Ferma concluded that Dishmon
did not present "violent or aggressive tendencies" and did not meet
the criteria for an antisocial personality disorder. She also opined that Dishmon appeared
"genuinely remorseful" for the injuries he had inflicted on his
son.
In a
mitigation statement, defense counsel requested the court to impose probation
or a two-year total sentence. In
support, defense counsel stated that Dishmon feels remorseful and takes full
responsibility for his actions, and that the incident occurred because Dishmon
was "feeling overwhelmed and frustrated" while serving as his son's
caregiver.
The
probation officer recommended a nine-year term, consisting of the midterm for
the child abuse count and the midterm for the great bodily injury
enhancement.
At the
outset of the sentencing hearing, the court said it had reviewed the entire
court file, including the change of plea form, the probation report, the
defense mitigation statement, Dr. Ferma's psychological evaluation, letters
supporting Dishmon, and a victim impact statement from the injured child's
mother. Based on its review of these
materials, the court stated it was inclined to sentence Dishmon to a six-year
term, but would consider counsels' arguments regarding the appropriate
sentence.
In his
argument, the prosecutor strongly objected to a six-year term. Emphasizing the seriousness of the offense
against a "defenseless" infant, the prosecutor asked the court to
follow the probation officer's recommended nine-year sentence.
The
infant's mother (Mother) then spoke about her son's recovery and the emotional
impact of the crime. She asked,
"What kind of a man punches a five-month-old baby, nonetheless [his] own
son . . . [and then] waits an hour to call for help while that baby is blacked
out?" Dishmon interrupted,
declaring the infant was "not [his] son." Amid requests from the court that he remain
silent, Dishmon interjected two more times, stating the infant was not his son
and adding that Mother was not his wife.
When she was allowed to continue, Mother discussed her continuing fear
of Dishmon and concern for the safety of her child and asked the court to
require Dishmon to remain financially responsible for the child. Mother additionally emphasized the severity
of the baby's injuries and her inability to comprehend Dishmon's actions,
asking "How could a man behave like a wild animal?" Mother also questioned what she should tell
her son when he started asking questions about his dad.
After
Mother's statement, the prosecutor requested the court to reconsider its
indicated sentence. The prosecutor said
he was "extremely concerned based upon the defendant's outburst[s]"
that Dishmon "feels no particular remorse over what he did and that there
may be some physical danger with regard to either [the child or
Mother]." The prosecutor said
"[t]hose are the types of comments that are danger signs. And we have to sentence based upon the
information we have available today."
In his
argument, defense counsel urged the
court to impose probation or the low term.
Defense counsel asserted that Dishmon's comments at the hearing
reflected merely his "frustration" arising from his difficult
relationship with Mother, and did not show that Dishmon intended to cause any
additional harm to Mother or to his son.
Defense counsel also focused on Dishmon's lack of prior criminality, the
isolated nature of the offense, his acceptance of responsibility, and his
remorse. Defense counsel concluded by
noting that Dishmon had expressed a desire to address the court, but counsel
had "advised him that it was not necessary" and "it might be
best for him if he just allows the Court to make its decision based on what
we've heard so far."
After the
court admonished "that any similar outbursts . . . would not be in
[Dishmon's] best interests," Dishmon chose to speak. The following colloquy then occurred:
"THE DEFENDANT:
I've been locked up for almost a year.
And before, prior to this to me it's very upsetting that [Mother] would
sit down, pretend like I didn't do anything.
I pay rent, I pay rent. When she
didn't have money coming in, I paid for everything. When the child was born, the father, the
brother, they treated me like dirt for no reason. I had a verbal disagreement with him on
Facebook even. I found messages from her
on Facebook because she has a habit of leaving the computer open, where I found
a lengthy message with her and her friend who have their own issues in her
relationship, talking negative about me.
And the person doesn't even know me.
"THE COURT:
Mr. Dishmon, the issue presented to me today is the injury to [the
child].
"DEFENDANT:
That's fine. I looked at it like
this: I'm going to prison. I can do the time. You want to give me 12 [years], that's fine,
I will do it.
"THE COURT:
Mr. Dishmon, I'm going to suggest—
"DEFENDANT:
I have no intention [of] even looking for her. It is not my son. She is not my wife. I don't believe it's my son. Every time I held him, he didn't feel like my
son.
"THE COURT:
I suggest you don't say anything else.
"DEFENDANT:
He is not my son.
"THE COURT:
I advise you not to speak anymore.
"DEFENDANT:
I have no intention of looking for her forever. I don't care what she does or who she goes
with. It's done I don't care.
"THE COURT:
Mr. Dishmon, I have heard enough.
Stop talking.
"DEFENDANT:
The feeling is mutual.
"THE COURT:
Stop talking.
"DEFENDANT:
Her statement does not move me at all.
"THE COURT:
Mr. Dishmon, if you continue to talk, I will have you removed from the
courtroom. Do you understand that?
"THE DEFENDANT:
That's fine. The feeling is
mutual.
"THE COURT:
Anything else, [defense counsel]?
"THE DEFENDANT:
Fucking liars."
After
further argument by counsel and a brief recess, the court informed the parties
that it had decided to modify its indicated sentence, explaining: "I placed a lid of seven years on
[Dishmon's] plea of guilty in his case and feel, based on [Dishmon's] outbursts
and his apparent lack of remorse, as well as his lack of understanding of the
seriousness of the charge to which he pled guilty, that I can no longer honor
the seven-year lid I gave." The
trial court then continued the sentencing hearing.
At the
continued hearing held several months later, the court stated it now intended
to follow the probation officer's recommendation of a nine-year sentence. The court gave Dishmon the opportunity to
withdraw his plea and return the case to the pretrial stage, but Dishmon
declined. Both counsel then submitted
the matter. After stating it had reread
all the relevant information in the file and considered counsels' prior
arguments, the court found the mitigating factors balanced the aggravating
factors and imposed a nine-year term, consisting of middle terms for the
offense and the enhancement.
DISCUSSION
Dishmon
contends the trial court erred because it refused to adhere to the indicated
seven-year-maximum sentence.
I. Applicable
Legal Principles
The
California Supreme Court recently reaffirmed the long-established rule that an
indicated sentence is not a promise of any particular sentencing result. (People
v. Clancey (2013) 56 Cal.4th 562, 576-577 (Clancey).) In an indicated
sentence, a defendant admits all charges and the trial court informs the
defendant " ' "what sentence [it] will impose if a given set of facts is confirmed . . . ." [Citation.]'
[Citation.]" (
1507, 1516.) Thus, if the factual
predicate underlying the indicated sentence is disproved, the court may
withdraw the indicated sentence. (
v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261, 1271.)
Additionally,
a trial court retains broad discretion to modify an intended sentence even if
the factual predicate is not disproved.
(Clancey, supra, 56 Cal.4th at
pp. 576-577.) For example, the court may
depart from an indicated sentence based on additional new information or based
on a reexamination of the relevant circumstances. (Id.
at p. 576.) "The 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." (Ibid.)
Thus, after
providing an indicated sentence, the trial court retains its full discretion at
the sentencing hearing to select a fair
and just punishment. (Clancey,
supra, 56 Cal.4th. 562.) "[A]n
indicated sentence is not a promise that a particular sentence
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, at p. 576; accord,
551, 555.)
Mindful of
the court's broad discretion in modifying an intended sentence, we consider
Dishmon's arguments that the court abused its discretion in this case.
II. Analysis
The trial
court stated it modified its indicated sentence based on new information
showing Dishmon was not remorseful and had not appreciated the seriousness of
his offense. These are appropriate
factors to consider in sentencing and the record fully supports the court's
factual conclusions.
At the
hearing, Dishmon expressed extreme anger at Mother, called Mother and the
prosecutor "[f]ucking liars," stated he does not care and was not
"move[d]" by Mother's emotional statements about the infant's
injuries, and indicated a complete disregard for the baby's welfare. These comments can be reasonably understood
as reflecting an absence of remorse and a refusal to take responsibility for
his actions. Likewise, repeatedly
interrupting the court and refusing to follow the court's directions
illustrates Dishmon's disrespect for the proceedings and supports that Dishmon
lacked appreciation for the seriousness of his conduct.
The court
reasonably relied on Dishmon's outbursts and conduct as the basis to modify the
indicated sentence. At the outset of the
hearing, the court stated it was basing its indicated sentence on the materials
reviewed, which included the opinions of the psychiatrist and defense counsel
that Dishmon felt remorse for the crime and that he understood the seriousness
of his offense. After considering
Dishmon's remarks, the court had a reasonable basis to disagree with these
opinions and conclude that Dishmon felt no remorse for his crime and did not
appreciate the serious nature of his actions.
As the California Supreme Court has noted, "the presence or absence
of remorse may be considered as relevant to the evaluation of mitigating
evidence and to the penalty determination." (People
v. Davis (2009) 46 Cal.4th 539, 620.)
Dishmon
does not argue that the court could not use the absence of remorse or the lack
of understanding of the seriousness of the offense as grounds to change the
indicated sentence. Instead, he
challenges the court's factual inferences and conclusions. He contends the trial court misconstrued his
outbursts and that he was merely attempting to respond to Mother's claims that
he was a " 'wild animal' " who did not financially support the family
and had resorted to " 'violent actions' to 'escape his responsibilities.'
"
However,
even assuming the court could have reached a factual conclusion that Dishmon's
statements constituted only an attempt to rebut false accusations against him,
the court was not required to do so.
Where, as here, the court's factual conclusions are reasonable and based
on the record before it, we credit those conclusions, even if other factual
inferences are possible. The experienced
trial judge was in the best position to evaluate the meaning of Dishmon's
statements, including by considering his words, the tone of his remarks, and
his facial expressions and body language.
Based on a totality of the circumstances, the court interpreted
Dishmon's statements as reflecting a lack of remorse and a lack of concern for
his criminal conduct and concluded that its prior assumptions about Dishmon
were false. The court's conclusions were
reasonable.
Dishmon's
suggestion that People v.
supports his arguments is without merit.
In Delgado, the trial court
withdrew the original indicated sentence because of an objectively demonstrable
change in facts (the court's learning of two prior prison terms). (Id.
at p. 553.) The reviewing court rejected
the defendant's arguments that the court erred, emphasizing that an "indicated
sentence is just that: an
indication. Until sentence is actually
imposed, no guarantee is being made."
(Id. at p. 555.)
This case
is indistinguishable. As in
indicated sentence because of information showing the relevant facts were
different than the court had previously believed. The fact that the new information was based
on the defendant's statements rather than on a documented prison sentence is a
distinction without a material difference.
In this case, as in Delgado,
the trial court properly exercised its discretion when it modified the
indicated sentence because it found the factual predicate underlying the
seven-year lid to be false.
Finally,
any error was waived because the trial court properly provided Dishmon the
opportunity to withdraw his plea when the court modified its indicated
sentence. Dishmon declined to do so,
knowing of the new indicated nine-year sentence and understanding he was facing
a maximum 12-year sentence. We reject
Dishmon's argument that the specific performance remedy is available under
these circumstances. As noted in
indicated offer was a guaranteed sentence,
which it was not, '[t]he goal in providing a remedy for breach of the bargain
is to redress the harm caused by the violation without . . . curtailing the normal sentencing discretion of the trial
judge. . . .' . . . To order the
court to specifically perform . . . would [improperly] 'curtail[] the normal
sentencing discretion of the trial judge.' " (People
v. Delgado, supra, 16 Cal.App.4th at p. 555.)
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
NARES, Acting P. J.
AARON, J.
name="_ftn1" title="">[1]
Our description of the offense is
based on information in the probation report.
(See People v. Breslin (2012)
205 Cal.App.4th 1409, 1412.)
