Filed 4/24/18 P. v. Mataele CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
RAYMOND HAAMEA MATAELE,
Defendant and Appellant.

A146730

(Contra Costa County
Super. Ct. No. 51507391)


A jury found defendant Raymond Haamea Mataele guilty of inflicting corporal injury on a cohabitant or parent of his child with a prior conviction for domestic violence, felony child endangerment, and violation of a protective order. Defendant contends there was insufficient evidence to support the conviction for felony child endangerment and, alternatively, the trial court abused its discretion in imposing the upper term for the offense. He also challenges the imposition of certain fees. The Attorney General concedes the domestic violence fee should be stricken.
We will strike the domestic violence fee, and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
At the time of trial, defendant and C.R. had dated for three or four years, starting when C.R. was around 16 years old. They had a daughter together, S., who was one-and-a-half years old at the time of the offenses. C.R. and S. lived with defendant’s mother in Pittsburg. During their relationship, defendant and C.R. had arguments, and each apparently suspected the other of cheating.
Current Incident of Domestic Violence
On the night of January 30, 2015, C.R. and defendant had an argument that became physical. C.R. was a reluctant witness at trial, and she testified she did not remember what happened that night because she had blocked it out. C.R. did testify that she had bruises on the side of her stomach as a result of defendant’s actions. She also agreed that she told the truth when she reported what happened to the police the next day.
The morning after the fight, C.R. called her aunt Sofia. C.R. was crying; she said she feared for her life and her child’s life and she wanted to leave Pittsburg. She asked her aunt to come get her, but Sofia was unable to pick her up at that time. C.R. then called her brother Antonio. She told her brother that defendant had hit her all night and she feared for her life.
Antonio went to defendant’s mother’s house, picked up C.R. and her daughter, and took them to his home. C.R. had a black eye and bruises on her cheek. Antonio then took C.R. to the police station at her request.
An officer at the police station interviewed C.R. about what happened the previous night with defendant, and a recording of the interview was played for the jury. The officer observed that she had a bruised left eye, swelling on the left side of her face, a cut on her lip, and “large bruising” on the left side of her body.
C.R. reported to the police that defendant struck her in the face with a closed fist many times and hit her on the side of her ribs. Their daughter S. was in the room during the fight. C.R. and defendant were sitting on the bed together, and he called her a bitch and said she was cheating on him. C.R. grabbed S. She told the officer, “I grabbed my daughter because she was crying, and [defendant] just, he kinda calmed down, but then he hit me again. But luckily [S.] was like, on my lap when he did it, so I thought he was gonna hit her. But he didn’t, he hit me.” Defendant continued to hit C.R. on the face with the baby on her lap. Then he started punching her on her side. At that time, C.R. was not holding S. C.R. said she put S. on the bed “[b]ecause I didn’t want her in the way.” Defendant hit C.R. in the ribs “pretty hard” with a closed fist. He continued to accuse her of cheating, saying, “are you gonna tell me what you did? I know what you did.”
C.R.’s aunt Sofia met her at the police station after the police interview, and took C.R. to her (Sofia’s) home. C.R. told her aunt she was beaten severely the previous night and defendant kicked her multiple times on her side. She said S. was in the room, and she felt like she had to cover S. and protect her from defendant’s rampage. C.R. further told Sofia that she did not want S. to get hurt and she was covering S. with her body to make sure defendant did not hurt her. C.R. was afraid because defendant was uncontrolled.
Prior Act of Domestic Violence
The parties stipulated that defendant had a conviction for assault upon C.R. by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) based on an incident that occurred in April 2013, and that a criminal protective order protecting C.R. was in place against defendant. They further stipulated that after the April 2013 incident, C.R. was treated at the hospital and suffered an orbital fracture, a jaw fracture, contusions to the cheek and eye, swelling to both lips, contusions to the forehead, bleeding from the nose and mouth, and contusions to the wrist and triceps.
C.R. testified that she was seven months pregnant at the time of the April 2013 incident. During that incident, defendant punched C.R. in the face with both hands “too many times for [her] to count.” She screamed at defendant to stop “because of the baby,” but he told her to shut up and did not stop. While defendant punched her, C.R. tried to protect herself and protect her belly. Defendant accused C.R. of cheating, and he kept saying, “are you gonna tell me?” When C.R. reported the incident to the police, she said she had been afraid for herself and for her unborn baby.
DISCUSSION
A. Sufficiency of the Evidence of Felony Child Endangerment
Penal Code section 273a, subdivision (a), provides: “Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.” (Italics added.)
“Violations of section 273a, subdivision (a), can occur in a wide variety of situations” (People v. Hansen (1997) 59 Cal.App.4th 473, 479 (Hansen)), and can include “both direct and indirect conduct” (Burton, supra, 143 Cal.App.4th at p. 454). “ ‘The number and kind of situations where a child’s life or health may be imperiled are infinite. . . . Thus, reasonably construed, the statute condemn[s] the intentional placing of a child, or permitting him or her to be placed, in a situation in which serious physical danger or health hazard to the child is reasonably foreseeable.’ ” (Hansen, at p. 479.) A parent may be convicted of child endangerment under section 273a “by engaging in serious domestic violence against the other parent while aware that his or her child is at the scene.” (Burton, at p. 450.)
Felony child endangerment involves acts or omissions “under circumstances or conditions likely to produce great bodily harm or death” (§ 273a, subd. (a), italics added), but causing actual harm to the child is not required. (People v. Valdez (2002) 27 Cal.4th 778, 784 (Valdez).) Further, “given the interest protected, i.e., the lives of highly vulnerable children, the definition of ‘likely’ in the context of section 273a is not that death or serious injury is probable or more likely than not.” (People v. Wilson (2006) 138 Cal.App.4th 1197, 1204.) Instead, “ ‘likely’ as used in section 273a means a substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death.” (Ibid.)
When felony child endangerment is based on direct infliction of unjustifiable physical pain, it is a general intent crime. (Valdez, supra, 27 Cal.4th at p. 786.) When felony child endangerment is not based on direct physical abuse of a child, the mens rea is criminal negligence. (Id. at p. 781.) Our Supreme Court has explained, “Criminal negligence . . . is a standard for determining when an act may be punished under the penal law because it is such a departure from what would be the conduct of an ordinarily prudent or careful person under the same circumstances. When that departure endangers the person or health of a child and is ‘under circumstances or conditions likely to produce great bodily harm or death,’ it constitutes a felony violation of the child endangerment statute. (§ 273a, subd. (a).)” (Id. at pp. 789–790.) Criminal negligence is based on a reasonable-person standard, and may be found even when the defendant believes his or her actions carry no risk. (Hansen, supra, 59 Cal.App.4th at p. 478.)
Defendant contends no substantial evidence supports his conviction of felony child endangerment. He asserts S. was not injured during the incident of domestic violence against C.R., there is no evidence that defendant intended to injure S., and “there is no evidence she was ever close to being injured.” He argues the record contains only C.R.’s “speculation” that defendant might try to injure the child, and speculation is not substantial evidence. We disagree.
“ ‘When a defendant challenges the sufficiency of the evidence, “ ‘[t]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” ’ [Citation.] . . . ‘Although a jury must acquit if it finds the evidence susceptible of a reasonable interpretation favoring innocence, it is the jury rather than the reviewing court that weighs the evidence, resolves conflicting inferences and determines whether the People have established guilt beyond a reasonable doubt.’ [Citation.] ‘ “ ‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’ ” ’ ” (People v. Casares (2016) 62 Cal.4th 808, 823–824.)
Here, the evidence shows defendant punched C.R. in the face repeatedly in an “uncontrolled” state. C.R. felt that she had to cover S., a defenseless baby, to protect her from defendant’s rampage. Defendant’s blows to C.R. were forceful enough to cause her to have a black eye, swelling on the left side of her face, and a cut on her lip. C.R. told the police she grabbed her daughter because she had started crying while defendant was hitting C.R. After C.R. placed one-and-a-half-year-old S. on her lap, defendant seemed to calm down, but then continued to hit C.R. in the face.
Evidence that defendant violently attacked C.R. while S. was sitting on her lap is sufficient to support the conviction of felony child endangerment. As the Attorney General posits, S. was “essentially in the midst of the physical attack on her mother,” and easily could have been injured had defendant missed his target or lost his balance. C.R. told the police she moved S. from her lap “because I didn’t want her to get in the way.” In other words, S.’s location (on C.R.’s lap) was “in the way” of defendant’s blows directed at C.R. An ordinarily prudent or careful person would have realized there was a well-found risk of great bodily harm to S. under the circumstances. Defendant’s criminally negligent conduct did not have to cause S. physical harm for him to be convicted of felony child endangerment. Accordingly, we reject defendant’s substantial-evidence challenge to his conviction.
B. Sentencing
The jury convicted defendant of domestic battery with a previous conviction for assault with force likely to produce great bodily injury (§ 273.5, subds. (a) and (e); count 1), felony child endangerment (§ 273a, subd. (a); count 2), and violation of a protective order (§ 166, subd. (c); count 3). The trial court also found defendant had a prior prison term. (§ 667.5, subd. (b).)
The court imposed the maximum sentence of eight years and four months in state prison calculated as follows: an upper term of six years for count 2, a consecutive 16 months for count 1 (one-third of the midterm of four years), one year for count 3 to be served concurrently with counts 1 and 2, plus a consecutive one-year term for the prior prison term. The court also ordered defendant to pay a parole fine, a court operations assessment, a criminal conviction assessment, and a probation report fee.
1. Upper Term
Defendant argues the trial court abused its discretion in sentencing him to the upper term for felony child endangerment.
In a sentencing brief and statement in aggravation, the prosecution asked the court to impose the maximum term. The prosecution stated that defendant previously beat the victim when she was seven months pregnant—fracturing bones in her face—and was sent to prison for that offense. Following his incarceration for assault and after he had been released in the community for only three months, he reoffended, “beating the same victim while she was two months pregnant [and] holding [his] child, at a time when a court protective order and his own release conditions prohibited him from even having contact” with the victim.
The prosecution argued the victim of felony child endangerment “was only a year and a half old and completely incapable of defense” and identified the following factors in aggravation: (i) the crime involved cruelty, viciousness, or callousness, (ii) the victim was vulnerable, (iii) defendant took advantage of the trust of C.R., (iv) his conduct indicated a serious danger to society, (v) his prior conviction shows increasing seriousness, (vi) he served a prior prison term, (vii) he was supervised by probation at the time of the crime, and (viii) his performance on probation or postrelease community supervision was unsatisfactory. (See Cal. Rules of Court, rule 4.421(a)(1), (3), (11) and (b)(1), (2), (3), (4), (5).)
At the beginning of the sentencing hearing, the trial court stated its tentative sentence was to follow the prosecution’s recommendation and rationale. The court then heard the parties’ arguments. Defense counsel asked for the midterm and argued defendant’s young age (he was 21 years old) and mitigating factors in his own life should be considered.
The prosecutor emphasized that defendant had a prior conviction for exactly the same type of abuse against the same victim. He urged the court to consider the ages of the victims, and argued defendant was endangering children. (C.R. had a second child with defendant at the time of sentencing. The prosecutor also stated that defendant was interviewed by the police following the crimes, and he said he had no idea how she got her bruises, so he lied to the police and showed no remorse.
After hearing counsels’ arguments, the trial court adopted its tentative ruling of imposing the maximum sentence. As to aggravating factors, the court stated, “The Court did take in to account that it was serious assault involving great violence with great bodily harm to his wife, the mother of his child, who was pregnant with his second child at the time. That this was a violation of a court order at a time when the defendant was also on parole. That the defendant took no responsibility for the crime, and has to date, expressed no remorse for that crime.” As to mitigating factors, the court noted that the probation officer found none, and it was a close question whether defendant’s youth was a factor in mitigation. The court observed the victims were also young, and these appeared to be offsetting factors.
When making sentencing decisions, trial courts have wide discretion in weighing aggravating and mitigating factors, and we affirm unless the sentencing choice is clearly arbitrary or irrational. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) A single factor in aggravation will support imposition of an upper term. (People v. Osband (1996) 13 Cal.4th 622, 728 (Osband).) “When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.” (People v. Price (1991) 1 Cal.4th 324, 492 (Price).)
Defendant argues the trial court improperly relied on factors that did not relate to the offense of felony child endangerment and one fact that was not supported by evidence. Specifically, he asserts the court relied on the seriousness of the assault upon C.R. and the fact that that she was pregnant, but these facts did not make his crime of child endangerment distinctively worse than the ordinary offense; the court relied on the fact defendant violated a court order, but he was separately charged with that conduct; and the court relied on defendant’s failure to take responsibility and lack of remorse, but there was no admissible evidence on this issue.
The Attorney General responds that the seriousness and violence of the assault was a proper consideration, and we agree. Defendant’s attack of C.R. while S. was extremely close by was the conduct that constituted felony child endangerment. The violence of the attack is therefore relevant to assessing the seriousness of the offense. We also agree with the Attorney General that the trial court could properly consider the lack of any evidence defendant was trying to address his ongoing problem with domestic violence (and his substance abuse problem, to which he at least partially attributed his violence), which resulted in endangering his own child. The trial court could rely on this to determine he was a continuing serious danger to society. (Cf. People v. Reyes (1987) 195 Cal.App.3d 957, 963 [“where the defendant has a pattern of substance abuse and addiction or alcoholism, where the defendant has failed to deal with the problem despite opportunities to do so, where he continues in criminal conduct to support his pattern of substance abuse, an aggravated or upper term is appropriate”; “the need to protect the public from further crimes by that individual suggests that a longer sentence should be imposed”].)
Further, defendant concedes that the trial court stated a proper factor in aggravation—that he was “on parole”—and a single aggravating factor is sufficient to impose the upper term. (Osband, supra, 13 Cal.4th at p. 728.) We also note that the trial court stated at the outset of the sentencing hearing that it relied on the prosecution’s rationale for imposing the maximum term, and the prosecution offered many proper factors in aggravation. Assuming for the sake of argument that some of the factors stated by the trial court were improper, we conclude it is not reasonably probable the trial court would have chosen a lesser term had it known some of its factors were improper. Accordingly, there is no reason to set aside the sentence. (See Price, supra, 1 Cal.4th at p. 492; People v. Avalos (1984) 37 Cal.3d 216, 233.)
2. Probation Report Fee
Defendant argues the probation report fee must be stricken because he objected to the imposition of the fee but no hearing on the matter was held. We find no reversible error.
The reporter’s transcript of the sentencing hearing shows that the trial court announced various fines and fees, and defense counsel objected on the ground defendant did not have the present ability to pay. The court responded that defendant was “entitled to appear, and he’ll have to appear before the CCU[ ] within 20 working days of today for an evaluation and recommendation by the court financial officer.” The courtroom clerk then set the hearing for November 16, 2015, at 8:30 a.m. in Department 29. Later in the hearing, the court asked the clerk about the date for hearing the fees issue. The clerk stated, “November 16th at 8:30, Department 29.” The court checked with defense counsel, and she stated the hearing date was fine.
The clerk’s transcript includes clerk’s minutes for November 16, 2015. The minutes indicate defendant did not appear, and a box is marked for “Bench Warrant to Issue.” The next entry in the clerk’s transcript is a request by defense counsel to add a hearing to the court calendar “re: fines/fees.” The request, approved by the clerk, is for a hearing at 8:30 a.m. on December 4, 2015, in Department 27. The next entry in the clerk’s transcript is clerk’s minutes for December 4, 2015, in Department 27. Counsel for defendant and the district attorney were present. The minutes indicate that defendant was in custody in state prison, and that the earlier bench warrant was recalled. A box is checked on the minutes next to the preprinted words “[n]o action taken,” and elsewhere is handwritten, “Case should be returned to Judge Baskin [the trial judge].” There are no further entries in the clerk’s transcript regarding a hearing on defendant’s ability to pay fees and fines.
Defendant argues, “Nothing in the record indicates the hearing was ever held,” and “Because the trial court has never resolved [defendant’s] objection [to] that fee, the Court should strike his obligation to pay that fee from the abstract of judgment.” The premise of defendant’s claim is that the trial court must have improperly denied him a hearing on his objection to the probation report fee. But the record does not support this premise. At the sentencing hearing, the trial court explained defendant’s rights regarding objecting to the probation report fee, and the clerk set a hearing. There is no explanation for why the first calendared hearing of November 16 did not take place, but there is indication that further proceedings on the issue were held on December 4. The last entry on the issue in the clerk’s transcript shows the case “should be returned to” the trial judge. There is no suggestion in the record that the court subsequently refused to consider defendant’s objection to the probation report fee. The court may have decided the issue, or defendant may have abandoned the issue. On this record, we cannot say defendant was denied a hearing. In short, defendant has failed to show reversible error.
3. Domestic Violence Fine
The abstract of judgment shows the imposition of a “Domestic Violence fine” of $500 pursuant to section 1203.097, subdivision (a)(5). The parties agree this fine should be stricken. We agree. The trial court did not impose the fine on the record at the sentencing hearing, and, in any event, such a fine would be unauthorized because defendant was not “granted probation.” (§ 1203.097, subd. (a); see also People v. Kirvin (2014) 231 Cal.App.4th 1507, 1520.) Accordingly, we will strike the $500 domestic violence fine.
DISPOSITION
The judgment is modified to strike the $500 domestic violence fine. The trial court is directed to prepare an amended abstract of judgment striking of the domestic violence fee and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.








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Miller, J.


We concur:


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Richman, Acting P.J.


_________________________
Stewart, J.