P. v. Smith

Filed 6/22/07 P. v. Smith CA

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. Peter M. Schultz, Judge.

Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janis Shank McLean and Clayton S. Tanaka, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Nathaniel Willis Smith was charged by information with willful infliction of cruel or inhuman corporal punishment or injury on a child, resulting in traumatic condition (Pen. Code, 273d, subd. (a); count 1), and willful infliction of corporal injury on a spouse or cohabitant, resulting in traumatic condition (Pen. Code,

273.5, subd. (a); count 2). A jury convicted appellant on the count 2 offense, and the court declared a mistrial as to, and thereafter dismissed, count 1. The court imposed a prison term of three years.

On appeal, appellant contends the sentencing court erred in considering the facts underlying count 1, notwithstanding that appellant agreed that the court be allowed to consider such facts, because they were not supported by substantial evidence. We will affirm.

FACTUAL AND PRODEDURAL BACKGROUND

Facts

On the evening of November 10, 2005, Maribel Vallero returned home from work and found A., her seven-month-old son, in bed with appellant, the boys father, who was sleeping. Vallero picked up A. and took him into another room, where she noticed swelling, redness and what appeared to be a bruise on the boys head, and a mark on his shoulder.

Vallero went back into the room where appellant was sleeping, woke him and asked him about the apparent injuries to A. Appellant became irritated; stated, Heres your fucking keys ; and threw a ring of keys at Vallero. The keys struck Vallero, who was holding A. on her hip at the time, on the neck, causing a cut approximately two inches in length.

Procedural Background

On March 16, 2006, the prosecutor informed the court, and defense counsel confirmed, that the People would move to dismiss [count 1] with a Harvey waiver.^[1] Thereafter, the court dismissed count 1.

On April 25, 2006, in imposing sentence, the court stated: With regard to the issue of granting or denying probation, a grant of probation does not appear to be appropriate based on Mr. Smiths prior performance on probation; that prior performance being entirely unsatisfactory. [] Its particularly significant in a case like this where he was on probation for a similar offense for violating the same Penal Code Section and followed [sic], he failed to follow the terms of probation specifically designed to prevent the recurrence of the crime, mainly attending the counseling that was ordered. Immediately thereafter, the court imposed sentence.

DISCUSSION

As indicated above, appellant argues that the sentencing court relied on the facts of the dismissed count, these facts were not supported by substantial evidence and therefore the sentence must be vacated and the matter remanded for resentencing. There is no merit to this contention.^[2]

As appellant points out, any fact relating to a dismissed count upon which a sentencing court relies, pursuant to a Harvey waiver, must be supported by a preponderance of the evidence. (People v. Leung (1992) 5 Cal.App.4th 482, 506 [The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance of the evidence].) We will uphold a trial courts sentencing determination where it is supported by substantial evidence. (People v. Downey (2000) 82 Cal.App.4th 899, 917.)

The major premise of appellants challenge to the sentence imposed is the claim that the court relied on the facts of the dismissed count. The record does not support this claim. In stating its reasons for imposing a prison sentence, the court cited only appellants poor performance on probation and, in particular, appellants failure to attend court-mandated counseling. The court made no mention of the facts of the dismissed count. The mere fact, upon which it appears appellant relies, that the sentencing judge also presided over the trial, establishes no more than that the court was aware of the facts of the dismissed count. There is nothing in the record to suggest the court relied on those facts. On this record, appellant has not met his burden of establishing error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [ [a]ll intendments and presumptions are indulged to support [the judgment] on matters as to which the record is silent, and error must be affirmatively shown ].)

DISPOSITION

The judgment is affirmed.

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^*Before Cornell, Acting P.J., Gomes, J., and Dawson, J.

^[1] In People v. Harvey (1979) 25 Cal.3d 754), the court held that in the absence of any contrary agreement, a court cannot consider at sentencing the facts underlying, and solely pertaining to, counts dismissed as part of a plea agreement. (Id. at pp. 758-759.) The contrary agreement noted in Harvey has become known as a Harvey waiver.

^[2] Respondent argues this claim is waived because appellant failed to raise it below. We assume without deciding that appellants claim is cognizable on this appeal.