Filed 1/2/18 P. v. Jensen CA5





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Plaintiff and Respondent,

v.

MARTHA NICHOLE JENSEN,

Defendant and Appellant.

F073671

(Super. Ct. No. 14CM5013B)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant Martha Nichole Jensen pled no contest to four counts of willful harm or injury to a child in violation of Penal Code section 273a, subdivision (a), in exchange for dismissal of other counts, including a first degree murder count, and a maximum term of imprisonment of 10 years. The trial court denied probation and imposed a sentence of 10 years total imprisonment, in accordance with the plea agreement.
Jensen contends the trial court abused its discretion in denying probation, relied upon impermissible factors and failed to consider some mitigating factors in imposing sentence, and defense counsel was ineffective. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
Because Jensen pled no contest, the facts are as shown in the probation report. Jensen is a high school graduate who also completed two years of college. Jensen was the mother of four children, M.J. age six, P.J. age five, F.J. age three, and R.J. age seven months. Jensen’s husband was stationed at Lemoore Naval Air Station and the family lived on base.
On July 17, 2014, R.J. was transported to a hospital emergency room where he was declared dead. The Naval Criminal Investigative Service (NCIS) believed R.J.’s death to be suspicious and notified the Kings County Sheriff’s Department. NCIS advised R.J. had suspicious injuries to his head.
Deputy S. Weimer drove to the Jensen home to investigate. Upon entering the home, Weimer could smell a strong smell of urine and feces. Dried urine was on the floor of the kitchen, dining room, and laundry room. Feces were on the floor of the laundry room and in various locations in the bedrooms. Food, trash, and articles of clothing were strewn throughout the living room. Several large piles of dirty laundry were on the floor of the laundry room. Child Protective Services was contacted to take custody of Jensen’s three surviving children.
Command Master Chief Robyn Pierce was waiting outside the residence to speak with Weimer. Pierce informed Weimer she was aware of at least five separate complaints to the base housing authority regarding the condition of Jensen’s home. The complaints reported dog feces and urine on the floors, old food, dirty clothing, and garbage all over.
Weimer contacted and interviewed Jensen. Jensen showed “very little emotion” regarding the death of her infant son. She claimed she was nursing R.J. and providing him with solid foods. She reported feeling “exhausted and frustrated” due to “constant chores and tending to all the children.” Jensen reported that she was laying on the floor, nursing R.J., when she fell asleep. When she awoke, R.J. was limp and unresponsive. She began CPR and called 911.
Jensen also reported that she was “accused of shaking her baby on multiple occasions.” Jensen changed her story and stated she found R.J. under the footrest of the recliner chair. She was unable to explain why R.J. had marks on his head, but then stated the footrest “accidentally” opened and “bonked” R.J. on the head. Jensen then changed her story again, reporting that she had closed the recliner on part of R.J.’s body when she failed to move him away from the recliner. Jensen stated she may have shaken R.J. and she may have smothered him. Jensen stated that R.J.’s injuries to his head probably occurred when the infant “bumped his head on the door knob” and “struck the back of his ear on the corner of the bannister.”
The three surviving children were taken for medical examinations on July 29, 2014. F.J. had dry, itchy skin that appeared irritated from scratching and contact dermatitis. She also had multiple small insect bites on her neck, face, and extremities; there was a scab on her face, which appeared to be healing insect bites. It was suggested that F.J. would benefit from hearing and language evaluations.
M.J. was at the first percentile for weight and second percentile for height for his age. It was “concerning” that M.J.’s weight was extremely low and he had non-specific facial blemishes on his cheeks. His language skills were “delayed for his age” and he was “difficult to understand.”
P.J. also had dry, itchy skin and multiple insect bites. There were scabs on his face that appeared to be healing insect bites; his physical health was a concern for neglect. P.J. did not enunciate well for his age and appeared to have a language delay. P.J. also was not completely toilet trained.
The final autopsy for R.J. indicated he was malnourished and weighed only 10.14 pounds at his death. He had weighed eight pounds at birth.
On December 9, 2014, the Kings County District Attorney’s Office filed an information charging Jensen in count 1 with first degree murder in violation of section 187, subdivision (a); in count 2 with assault of a child under eight by means of force likely to produce bodily injury and resulting in death, in violation of section 273ab, subdivision (a); and in counts 3, 4, 5, and 6 with violating section 273a, subdivision (a), willful harm or injury to a child, or endangering their person or health. As to count 3, it was alleged that Jensen personally inflicted great bodily injury on a child under the age of five years in violation of section 12022.7, subdivision (d).
On January 14, 2015, the trial court suspended criminal proceedings pursuant to section 1368 and appointed a medical professional to evaluate Jensen’s competence to stand trial. Criminal proceedings were reinstated on February 18, 2015, after Jensen was found competent to stand trial.
On April 20, 2015, the trial court again declared a doubt as to Jensen’s competence to stand trial, suspended criminal proceedings, and appointed a medical professional to evaluate Jensen. On July 6, 2015, the trial court committed Jensen to Patton State Hospital pursuant to section 1370 until her competency could be restored. On December 2, 2015, the trial court found Jensen competent to stand trial and reinstated criminal proceedings.
A plea agreement was reached on February 22, 2016. Jensen agreed to enter no contest pleas to four counts of violating section 273a, subdivision (a), in exchange for dismissal of the other counts. The stipulated factual basis for the plea was that the Jensen home was found to be in “disarray with food, clothing, and trash strewn about” and “urine and feces on the floor throughout the home.” The three surviving children, and the deceased infant, were all malnourished and underweight. The conditions of the home were extremely dangerous and a contributing factor in the infant’s death, and could contribute to the great bodily injury or death of the three surviving children.
The trial court informed Jensen that her “maximum exposure is ten years in state prison” under the plea agreement. The trial court notified Jensen of the consequences of her plea, advised her of her constitutional rights, and accepted a waiver of those rights. The trial court also verified that Jensen had sufficient time to discuss the plea with her attorney and that she had no questions about the plea agreement.
After this exchange, the trial court accepted a plea of no contest to counts 3, 4, 5, and 6. Counts 1 and 2 were dismissed. The trial court informed Jensen she could submit letters of recommendation to the probation department, prior to sentencing. Sentencing was set for April 2016.
Jensen’s letters to the court denied all responsibility for the infant’s death. Jensen claimed she was “still learning to be a parent.” In one letter, she claimed she should not have been convicted for something she did not do; and there was “no crime” just a “misunderstanding.” In a second letter, Jensen claimed the infant died “by the hands of his older brother.” This letter also states that the “children were never malnourished,” but suffered from a “family disorder.” She opined that this was all a “misunderstanding;” she “never killed anyone;” and should not go to prison.
When interviewed by the probation officer, Jensen stated, “she was still learning how to be a mother” and repeatedly described her deceased child as “fussy” and “annoying.” She also told the probation officer the house was not unkempt; the children were not malnourished; and the children suffered from a “disorder.” Jensen did not appear concerned about the death of her child.
The probation officer noted that Jensen expected to reside with her mother, the children’s guardian, if released on probation. The probation report noted several criteria affecting probation, including the seriousness of the crimes compared to other instances of the same crime; the victims were particularly vulnerable; Jensen was an active participant in the crimes; she took advantage of a position of trust; and the victims suffered physical and emotional injuries because of Jensen’s actions. The probation report also noted that Jensen had no prior record; showed no remorse and continued to blame an older sibling for the infant’s death; and would suffer “substantial” effects from imprisonment because of her inexperience with state prison.
As a circumstance in aggravation, the probation report stated that Jensen took advantage of a position of trust. In mitigation, the report noted she had no prior record and had acknowledged wrongdoing at an early stage of the proceedings.
The probation officer recommended probation be denied and terms for the various counts be consecutive. The recommended sentence was the middle term of four years for the primary offense, with consecutive 16-month terms for each of the three other offenses, for a total of eight years.
At the April 11, 2016, sentencing hearing, the trial court stated it had read and considered the probation department’s sentencing report. Defense counsel argued Jensen had mental health issues, was in a “situation that she could not handle,” and should receive probation, not prison.
The People argued this was “a very, very serious case,” and that Jensen had never accepted responsibility for her role and showed little to no remorse. The People argued that the death of one child, and the state of malnourishment and delayed development of the other three children, marked this as an “aggravated situation” that warranted an aggravated term of imprisonment.
The trial court noted the deceased infant had injuries to his head; the filthy conditions of the home; five separate complaints regarding the conditions of the home had been made; Jensen gave different stories about what had happened to the deceased child; Jensen showed little remorse; and Jensen blamed one of her other children for the infant’s death. The trial court noted the delayed development and physical condition of the other children, and that Jensen denied they were malnourished and denied her home was disorderly or unhealthy.
The trial court denied probation on the basis Jensen’s crimes were more serious than other similar crimes; a seven-month old infant was killed; all the children were in “deplorable conditions” leading to malnourishment and delayed speech; and the victims were vulnerable. The trial court also found Jensen was a danger to the community “based on her lack of insight.”
In imposing a term of imprisonment, the trial court stated the death of the infant, the vulnerability of the victims, and the great bodily harm or threat of great bodily harm to the other children were factors in aggravation. The trial court found Jensen’s early plea and lack of prior record to be factors in mitigation, noting however, that Jensen continued to deny wrongdoing despite her plea.
The trial court imposed the upper term of six years for the count 3 offense, and consecutive 16-month terms for each of the other three counts, for a total of 10 years in prison. Various fines and fees were imposed and custody credits awarded.
Jensen filed a notice of appeal on May 3, 2016.
DISCUSSION
Jensen contends the trial court relied upon “legally inapplicable aggravating factors” (capitalization omitted) when imposing the upper term and failed to consider all factors in mitigation. To the extent these claims are forfeited because no objection was raised in the trial court, Jensen claims defense counsel rendered ineffective assistance. She also contends the trial court abused its discretion in denying her request for probation.
No Abuse of Discretion in Denying Probation
At sentencing, defense counsel challenged the probation report’s recommendation that probation be denied and a term of imprisonment be imposed. On appeal, Jensen contends the trial court abused its discretion because it cited the same factors in denying probation that it later used to support imposition of the aggravated term of imprisonment. Jensen, however, cites virtually no authority for her position that this is an impermissible dual use or an abuse of discretion. Failure to cite authority for the proposition forfeits appellate review of the issue. (People v. Camel (2017) 8 Cal.App.5th 989, 999.) Regardless, the trial court did not abuse its discretion.
The trial court has broad discretion in matters involving probation and sentencing, and the party challenging a decision to grant or deny probation bears the burden of establishing the court abused its discretion. (People v. Catalan (2014) 228 Cal.App.4th 173, 179.) Furthermore, a grant of probation is an act of grace or clemency, and an offender has no right or privilege to be granted such release. Stated differently, “‘[p]robation is not a right, but a privilege.’” (People v. Moran (2016) 1 Cal.5th 398, 402.)
“‘In reviewing [a trial court’s determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court’s order … is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.’” (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311 (Weaver), disapproved on another ground in People v. Cook (2015) 60 Cal.4th 922, 934-935.)
California Rules of Court, rule 4.414 provides guidance and factors in determining when probation is appropriate. Factors to consider fall into two categories—those relating to the defendant’s crime and those relating to the defendant. (Rule 4.414.) A trial court may also consider factors not listed in the rules if the factors are reasonably related to the court’s decision. (Rule 4.408(a).) A judge is assumed to have considered all relevant factors, unless the record affirmatively reflects otherwise. (Rule 4.409.)
A trial court is required to state its reasons for denying probation and imposing a prison sentence. (Rules 4.406(b)(2), 4.408(a).) Generally, a court satisfies this obligation when it explains why it favored imprisonment over probation. (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1157-1158.) On appeal, we will find abuse of discretion only where there is not sufficient or substantial evidence to support the court’s application of the factors. (Weaver, supra, 149 Cal.App.4th at p. 1313.) The factors need only be established by a preponderance of the evidence. (People v. Leung (1992) 5 Cal.App.4th 482, 506.)
Here, the trial court affirmatively stated it had read and considered the probation report. The probation report addressed in detail the criteria in Rule 4.414 and their applicability to Jensen; attached to the report were letters from Jensen denying culpability, among other statements. The parties stipulated to a factual basis for the plea.
The trial court identified multiple criteria in Rule 4.414 applicable to Jensen that weighed against a grant of probation, including: she did not show remorse and blamed one of her children for R.J.’s death (Rule 4.414(b)(7)); the seriousness of the harm to the children as compared to similar crimes, in that the infant R.J. died (Rule 4.414(a)(1)); the vulnerability of the victims, in that all the children were six years old or under and dependent upon Jensen for their care (Rule 4.414(a)(3)); she took advantage of a position of trust, in that she was the children’s mother (Rule 4.414(a)(9)); she lacked insight in that she denied the conditions of the home contributed to the harm to the children or that the children were malnourished, thus she would be a danger to others if not imprisoned (Rule 4.414(b)(8)).
On this record, we cannot say the trial court abused its discretion in denying probation. There was ample evidence to support the trial court’s thoughtful analysis and factual conclusion that despite Jensen’s lack of a prior record and the potential effect imprisonment would have on her (Rule 4.414(b)(1), (5), (6)), a term of imprisonment was appropriate. The trial court was fully justified in denying probation and imposing a prison term. (Weaver, supra, 149 Cal.App.4th at p. 1313.)
Factors in Aggravation and Mitigation
Jensen argues the trial court relied upon aggravating factors that were elements of the crime, contrary to law, or unsupported by the evidence. She acknowledges, however, that no objection was made in the trial court to the aggravating factors relied upon by that court. The failure to object constitutes a forfeiture of the issue on appeal. (People v. Scott (1994) 9 Cal.4th 331, 356; People v. Steele (2000) 83 Cal.App.4th 212, 226.)
Jensen also contends the trial court failed to consider all factors in mitigation, specifically her mental health. The trial court obviously was aware of Jensen’s mental health issues; defense counsel reminded the trial court at sentencing that criminal proceedings had been suspended pursuant to section 1368 and argued for leniency on this basis at sentencing. As for mitigating factors, “[a] trial court ‘may minimize or even entirely disregard mitigating factors without stating its reasons.’” (People v. Lai (2006) 138 Cal.App.4th 1227, 1258, quoting People v. Salazar (1983) 144 Cal.App.3d 799, 813.) There is no requirement that the upper term be supported by aggravating factors that outweigh the mitigating factors. (Rule 4.420(b).)
No Ineffective Assistance of Counsel
Alternatively, Jensen argues that defense counsel rendered ineffective assistance by failing to object to the aggravating factors relied upon by the trial court. To establish ineffective assistance of counsel, Jensen must prove both (1) counsel’s performance was deficient and (2) the deficiency resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 667; People v. Mayfield (1993) 5 Cal.4th 142, 206; In re Wilson (1992) 3 Cal.4th 945, 956.) Jensen has not met this burden.
“When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.… The court shall set forth on the record the reasons for imposing the term selected .…” (§ 1170, subd. (b).) When “selecting one of the three authorized terms of imprisonment referred to in section 1170(b), the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision.” (Rule 4.420(b).)
As this court has explained, because “[n]either section 1170 nor the California Rules of Court attempt to provide an inclusive list of aggravating circumstances ... a trial court is free to base an upper term sentence upon any aggravating circumstance that (1) the court deems significant and (2) is reasonably related to the decision being made.” (People v. Moberly (2009) 176 Cal.App.4th 1191, 1196.) Consequently, a trial court is not limited only to those factors specifically listed in Rule 4.421; that rule does not provide a comprehensive list.
In this respect, “[t]he essence of ‘aggravation’ relates to the effect of a particular fact in making the offense distinctively worse than the ordinary.” (People v. Moreno (1982) 128 Cal.App.3d 103, 110.) “Circumstances in aggravation include factors relating to the crime and factors relating to the defendant.” (Rule 4.421.) A single aggravating circumstance is sufficient to make a defendant eligible for an upper term and for the trial court to impose an upper term sentence. (People v. Black (2007) 41 Cal.4th 799, 813, 815, overruled on other grounds by Cunningham v. California (2007) 549 U.S. 270.)
It is apparent from the record, the trial court relied upon at least one appropriate aggravating factor in imposing the upper term. The trial court cited as an aggravating factor that seven-month-old R.J. had died. The death of a child is not an element of the offense set forth in section 273a; the elements of the offense can be satisfied by conduct that does not endanger the life of a child. (People v. Sanchez (2001) 86 Cal.App.4th 970, 979.) Standing alone, the serious harm to R.J. resulting in his death is more than enough to warrant the upper term. (See People v. Brown (2000) 83 Cal.App.4th 1037, 1043.) R.J.’s death makes the offense “distinctly worse than the ordinary” case of felony child abuse. (People v. Moreno, supra, 128 Cal.App.3d at p. 110.)
Overall, the trial court enjoys broad discretion in its sentencing decisions, subject only to review for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) No abuse of discretion has been shown. The trial court relied upon at least one valid factor in aggravation in imposing the upper term, which is all that is required to uphold the trial court’s sentencing decision. (People v. Osband (1996) 13 Cal.4th 622, 730.)
Just as the trial court rejected the probation officer’s recommendation to impose the midterm, we have no doubt it would have rejected any argument from defense counsel to impose any term other than the upper, or aggravated, term. Consequently, Jensen cannot establish that defense counsel was ineffective for failing to challenge the trial court’s use of aggravating factors to impose an upper term of imprisonment because any deficient performance did not result in prejudice. (Strickland v. Washington, supra, 466 U.S. at p. 667.)
DISPOSITION
The judgment is affirmed.