1 Filed 2/11/15 P. v. Dowdell 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BADYR JABRON DOWDELL, Defendant and Appellant. A138140
(Mendocino County Super. Ct. No. SCUKCRCR1221781)

ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT

The petition for rehearing filed on January 30, 2015, is denied. The opinion filed on January 15 , 2015, is modified as follows: (1) On page 9 of the op inion, delete footnote 3. (2) On page 11, in the last paragraph, delete part of the third sentence beginning with: “obvious possibility that his sentence c ould have been far grea ter in that tragic
event. As” Replace the deleted sentence with the following, to read:
“fact that his sentence could have been the sa me or far greater in that tragic event. First, while appellant argues that, if the ch ild had died, the prosec utor could not have charged him with violating s ection 273a and also alleged an enhancement under section 12022.7, caselaw is to the contrary. In People v. Corban (2006) 138 Cal.App.4th 1111, 1118-1119, the defendant pleaded no contest to a count of involuntary manslaughter and2 a violation of section 273a, admitting a section 12022.7 e nhancement attached to the latter, then argued on appeal that the enhancement was im proper because only a section 12022.95 enhancement could apply where the victim died. The Corban court found “ ‘no indication that the Legislature intended’ s ection 12022.95 ‘to supplant, rather than supplement’ section 12022.7, subdivision (d), ” and held that whether to allege an
enhancement under section 12022.95 or u nder section 12022.7 was a matter of prosecutorial discretion even where the victim died. ( Corban , at pp. 1118-1119, quoting People v. Bertoldo (1978) 77 Cal.App.3d 627, 634; see also, People v. Martinez (2014) 226 Cal.App.4th 1169, 1181-1184 [section 12 022.7 enhancement properly attached to count of furnishing controlled substan ce where defendant also convicted of manslaughter].) Moreover, as . . .” (3) On page 12, at the top of the page , delete last sentence of this paragraph, which reads: “Appellant’s reply brief does not respond to this point.” Add new paragraphs immediately followi ng the above deletion and preceding the current first full paragraph, as follows: “Although appellant’s reply brief did not respond to th is point, he argues on a petition for rehearing that sec tion 273ab is not comparable to the offense he admitted— abusing or endangering the health of a child—because convicti on of section 273ab requires an assault by means of force likel y to produce great bodily injury, with awareness of that likelihood, while section 273a, subdivision (a), can be violated without subjective awareness of the risk of harm. ( People v. Valdez (2002) 27 Cal.4th 778, 790.) Valdez explained that violation of section 273a, subdivision (a ), by direct infliction of harm is a general intent crime, its mens rea “t he intent to perform the underlying injurious act.” ( Id. at p. 786.) When section 273, subdivis ion (a), is violated by indirect infliction of harm, the standard is criminal negligence ( id. at p. 788), with kn owledge of the risk “ ‘determined by an objective test: “[I] f a reasonable person in defendant’s position would have been aware of the risk involved, th en defendant is presumed to have had such an awareness.” ’ ” ( Id. at p. 783, quoting Williams v. Garcetti (1993) 5 Cal.4th 561, 574.)3 But subjective awareness is not required fo r conviction under section 273ab either. Consistent with [ People v. ] Williams [(2001) 26 Cal.4th 779], a defendant may be guilty of an assault within the meaning of section 27 3ab if he acts with awareness of facts that would lead a reasonable person to realize that great bod ily injury would directly, naturally, and probably re sult from his act. (See Williams
, at p. 788.) The defendant, however, need not know or be subjectively awar e that his act is capable of causing great bodily injury. ([ People v. ] Albritton (1998)] 67 Cal.App.4th [647,] 658–659.) This means the requisite mens rea may be found even when the defendant honestly believes his act is not likely to resu lt in such injury. (See Williams, at p. 788, fn. 3.)” ( People v. Wyatt (2010) 48 Cal.4th 776, 781.)” In the last sentence of first full paragraph, immediately after “charged” insert the following: “as he was, under sect ion 273a, subdivision (a), with an enhancement under section 12022.7, or”
The new full sentence should read: “Again, this argument ignores the fact th at if Damian had died appellant could have been charged, as he was, under sec tion 273a, subdivision (a), with an enhancement under section 12022.7, or under section 2 73ab, which carries a minimum 25 year and potential life sentence.”
In the last sentence of the second full paragraph, directly following “but it is” insert the following: “equal to or” In same sentence, replace “equally” with “as”
The new sentence should read: “His sentence may be longer than one which might have resulted from a prosecution based on the child’s death but it is equal to or far shorter than another that appears at least as likely to have resulted.” (4) On page 20, in first sentence of first full para graph, after “In sum,” delete the following: “the court reached a thoughtful an d balanced decision on sentencing.”4 Replace deleted text with the following: “while the court imposed a lengthy sentence, it is clear that it did so after careful thought and balancing of the relevant factors.”
At end of the last sentence of first full paragraph (“We find no abuse of discretion.”) add the following text as the new footnote 7: “In his reply to the Attorney Genera l’s response to appellant’s petition for rehearing, appellant suggests that Damian ’s follow-up x-rays may not support Dr. Crawford’s view of the severity of the child ’s injuries. Appellant’s counsel represents that he only recently obtained these x-rays, despite more than a year of efforts to do so,
and that he intends to ask Dr. Crawford an d radiologists at Children’s Hospital whether the follow-up x-rays show “signs of healing fractures associat ed with the area of bruising and whether, if there are any su ch signs, they are consistent with a violent assault and inconsistent with accidental dropping of the infant.” Depending upon the responses to these inquiries, counsel states, he may file a petition for writ of habeas corpus raising the issues of 1) the prosecution’s failure to obtain and disclose potentially exculpatory evidence; 2) ineffective assi stance of counsel in failing to obtain this evidence and consult with an independent ex pert before advising appellant to plead guilty as charged; and 3) the trial court’s reliance up on unreliable aggravating evidence.” There is no change in judgment.

Dated: _______________

__________ _______________ Kline, P.J.1 Filed 1/15/15 (unmodified version) 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. BADYR JABRON DOWDELL, Defendant and Appellant. A138140
(Mendocino County Super. Ct. No. SCUKCRCR1221781)

Badyr Jabron Dowdell appeals from a convi ction of abusing or endangering the life of his infant son, with an enhancement for inflicting great bod ily injury, entered upon his guilty plea. He contends his nine-yea r prison sentence constitutes unconstitutionally “unusual” punishment; the court’s reasons for imposing middle sentences on the offense and enhancement were unsupported by the record and irrational; and he received
ineffective assistance of counsel due to his atto rney’s failure to object to these sentencing errors and ask the court to strike the great bodily injury enhan cement. We affirm.
STATEMENT OF THE CASE Appellant was charged by information f iled on July 7, 2012, with abusing or endangering the health of an infant (Pen. C ode, § 273a, subd. (a)). It was alleged that during commission of the offense, appellant in flicted great bodily injury upon a child under the age of five years. (§ 12022.7, subd. (d).) On August 1, the court granted a defense request to continue the trial because its expert witness would need up to eight weeks to co mplete a full analysis and report.2 On October 23, appellant pled guilty a nd admitted the enhancement allegation. There was no plea agreement. The court explained to appellant that he could be sentenced to a total term of up to 12 years, that the court wo uld impose sentence based on the probation department’s r ecommendation, and that because the offense to which he was pleading guilty was a strike , he would not be entitled to half-time credit and would be required to serve at least 85 percent of his sentence. On February 5, 2013, appellant was senten ced to a total prison term of nine years, consisting of the middle term of four years on the offense and a consecutive middle term of five years on the enhancement. Appellant filed a timely notice of appeal on March 12, 2013.
STATEMENT OF FACTS Appellant and Caitlyn Hulbert are the parents of Damian Dowdell-Hulbert. At the time of the incident, appellant was 24 years ol d; Damian was two months old. As set forth in the probation report, Ukiah Police Detective Pintane contacted Hulbert on April 30, 2012, after receiving a referral from Ch ild Welfare Services. Hulbert told the detective that on April 26, she had left Dami an with appellant for the day. When she returned about 4:30 p.m., she noticed Damian was not acting normally: He would repeatedly fall asleep , then wake up and cry in appare nt discomfort, whereas he was usually happy and smiling. Sh e asked appellant what was wrong and he said Damian had been fine all day. She gave the baby Children’s Tylenol and a bottle and put him down to sleep, then had dinner with appellant a nd prepared to leave about 9:00 p.m. When Damian woke up, he started crying and acting fussy. Hulbert arrived at home in Lakeport about an hour later. Sh e undressed Damian and lay him on his back, and he started to cry again. She rolled him over and saw bruising covering most of his back. Hulbert took him to Sutter Hospital in Lakeport, where she was told they were not equipped to handle a small child and he would need to be flown to Children’s Hospital in Oakland. When Hulbert arrived at the hospi tal, medical staff told her Damian was not permanently injured and could be released. Hulbert spoke with a sp ecialist who told her3 that, in his opinion, the bruising was not th e result of an accident but most likely was from being hit too ha rd on the back. While at the hospital, Hulbert called appe llant. He admitted th at he had dropped Damian, picked him up and tried to comfort him by patting his back, and that maybe he had patted the baby too hard. Appellant told Hulbert he had lied to her because he was
scared. He said he felt bad because he realiz ed that he was being selfish by lying, and his child’s safety shou ld have been more important.
Hulbert told Detective Pintane she did no t think appellant would ever intentionally hurt Damian but she agreed he should have to ld her what happened right away. She sent Pintane photographs of Damian’s back she had taken that even ing, telling him that a dark mark on Damian’s right buttock was a birthm ark rather than a bruise. She gave the detective appellant’s address. On May 8, Pintane received a faxed copy of Damian’s medical records from Children’s Hospital, which stated Damian had been admitted for “bruising, nonaccidental trauma, and hematoma.” Damian had been treated and released on April 28, 2012, and it was recommended he have follow- up x-rays taken in about two weeks. Pintane spoke with D r. Crawford-Jakubiak, 1 the Medical Director at Children’s Hospital, on May 24. The doctor said Damian had been admitted with “serious injury to his muscles, severe bruising, and injury to his ba ck” and “appeared to be in a great deal of pain.” A specialist in the field of child ab use injuries for 17 year s, Crawford-Jakubiak said he believed the injuries resulted from being struck multiple times and added that
“these were some of the worst he has ever seen.” Crawford-Jakubiak had received follow-up x-rays taken at Davis Medical Center which he said revealed six fractured ribs. The probation report related th at follow-up x-rays had been required because there was no internal damage or obvious bone fractures, and it was felt it would be easier to detect any possible fractures after th e bones began to heal.

1 The probation report first refers to th e physician as Dr. Craw ford, then later as Dr. Crawford-Jakubiak. For consistency, we use the same surname throughout.4 On May 21, Pintane and Sergeant McQu eary went to appellant’s residence and questioned him about the incident . Appellant said he had finished feeding Damian, stood up to burp him and dropped him from about three feet off the floor. Damian began crying and appellant “ ‘panicked and freaked out.’ ” He put Damian over his shoulder and tried to comfort him by patting him on th e back, and believed everything was alright because he changed Damian’s di aper and the baby went to sl eep. Appellant then noticed
blood on the shoulder of his shirt where he had been patting Damian. Appellant eventually told Pintane he ha d probably caused his son’s in juries by patting him too hard. Appellant was arrested an d transported to jail. Defense counsel referred appellant to Dr. Kevin Kelly for psychological evaluation prior to sentencing. Kelly administ ered several tests and reviewed the arrest report and charging documents. His findings stated: “ ‘No diagnosis of acute mental health symptoms; No diagnosis of personality disorder; Cons ideration of substance abuse (alcohol and marijuana); Stressors include: Co nflicted relationships with the mother of the infant; Marginal ab ility to sustain stable housing, No employment, No high school diploma, No financial support, Injuries to his infant, Prosecution, Difficulty in social, occupational, or school functioning; Focus of counseling interven tion on child abuse perpetration and parenting education.’ ” Ke lly concluded: “ ‘The instant offense appeared to be the result of inexperience as a parent and social immaturity resulting in
failure to inform the child’s mother and failure to get medical attention for the infant. The injuries and [appellant’s] poor response might have occurred regardless of whether [appellant] was or was not intoxicated. . . . The prognosis for rehabilitation of [appellant] is good. He is capable of completion of hi gh school and he is capable of acquiring job skills. [Appellant] would benefit from coun seling to support personal growth and maturity . . . . [Appellant] should not be en trusted with unsupervised care of an infant until he has undergone personal counseling an d parent training for approximately one year or more . . . . [Appellant] would be nefit from alcohol and marijuana outpatient education through sources such as the co mmunity college and AA/NA meetings.’ ”5 Interviewed by the probation officer on De cember 3, 2012, appellant related that when he stood to burp Damian after feeding him, the baby wiggled and appe llant dropped him on the floor from about three feet up. Ap pellant panicked when the baby started to cry and tried to comfort him by putting him over his shoulder and patting his back, and he assumed Damian was okay when he stopped crying. He lied to Hulbert when she asked if Damian was alright, then when he found ou t about the injuries a nd that Damian had to be in the hospital, appellant was “ ‘very emo tional’ ” and confessed he had dropped him. Hulbert was angry with appellant because at first the medical staff had been blaming her for Damian’s injuries. Appellant denied bein g under the influence of anything at the time of the incident but admitted having smoked ma rijuana earlier in the day. He did not believe he had anger issues, “just a problem c ontrolling his impulses.” He said he did not hit his son in anger but might have caused the injuries by patting him too hard while trying to comfort him. Appellant said he was “sorry this ha ppened” and acknowledged guilt for not being truthful with Hulbert sooner; he knew he made a mistake and wanted to make up for it. He said he wanted to become a good father a nd, if granted probation, was willing to go to parenting classes and counseling. He said if he was sent to prison, “that would only be
time out of his son’s life.” In her report dated December 18, 2012, the probation officer st ated that Hulbert reported Damian was “ ‘doing great’ ” and seemed to have recovered completely. Hulbert had been told he would have no perm anent injuries and had no follow-up medical appointments planned. Asked about her recommendation for sentencing, she said she was confused because appellant told her one thing and the police told her another, but said she knew appellant better than the officers and believed he did not need punishment and should not go to prison. She believed appellant needed treatment for alcoholism, and stated that she had split up w ith him because when drunk he got angry and sometimes violent, and in the past had pulled her hair an d thrown her into a wa ll. When not drunk, he was “the sweetest, kindest, most respons ible person ever.” As a single mother,6 Hulbert wanted appellant to be placed on probation a nd wanted him to be able to help her
care for Damian. She thou ght he should have s upervised visitation. In an amended report subm itted on February 5, 2014, th e probation officer related
a more recent conversation wi th Hulbert, who stated that Damian was “ ‘doing fine, healthy and happy.’ ” She ha d not taken him back to Chil dren’s Hospital and the last medical attention to the injuries from this incident was when she took him for follow-up x-rays in May 2012. He had since had severa l well-baby checkups at a pediatric clinic and the medical staff had not expressed concer ns or asked questions about the injuries. Hulbert agreed with her prev ious recommendation about senten cing “ ‘110 percent’ ” and believed “the whole thing was ‘blo wn way out of proportion.’ ” The probation officer spok e with Dr. Crawford-Jakubia k in January 2013 to ask
about the child’s current medical condition, but was told that Damian had not returned for a follow-up. Asked whether appellant’s explan ation of what happened was possible, Dr.
Crawford-Jakubiak said that fractured ribs are most commonly caused by someone “squeezing the chest to the point of rib fr acture, or punching or kicking,” and that “ ‘nothing characterized as a pa t would be consistent with th ese injuries, they were very unusually serious.’ ” The doctor stated that the amount of force necessary to fracture a rib was difficult to quantify but would “def initely have come from blunt force or squeezing.” He described the injuries as “ ‘a violent assault’ ” such that “[i]f a bystander would have witnessed it, he or she would have been very upset and alarmed.’ ” Dr.
Crawford-Jakubiak did not believe Damian’s in juries were life-threatening. He said, “ ‘Luckily the person edited his behavior.’ ” The probation report stated, “In other words, he stopped what he was doing before the injuries ended the victim’s life. Fortunately, the baby’s head wa s not hit. ‘There was no immediate threat of death,’ but the assailant’s ‘behavior was very risky.’ ” The amended report also added comments from Detectives Pi ntane and Waidelich that had not been provided by the time the first report was prepared. Waidelich stated, “ ‘My concern with this case was that [appellant ] chose to try and conceal what he did at
the risk of the life of his own child.’ ” He related Dr. Crawford-Jak ubiak having told him7 “ ‘that for Damian’s age group, it was one of the worst cases of physical abuse he had EVER seen.’ ” Pintane stated, “ ‘The fact that he caused so much tr auma to this infant and refused to take responsib ility for it is inexcusa ble. Additionally, he risked his son’s welfare and lied about what had happened solely out of concern for himself, if caught. . . . The physician specializing in ch ild abuse and child abuse injuries told me this was one of
the worst cases he had seen in his career. If I remember right [appe llant] broke 12 of his infant son’s ribs, TWELVE. He could have killed the child a nd was content in stating he did not know what happened.’ ” Both officers urged a prison sentence. The probation report attached a number of letters from appellant’s family and friends that appellant had submitted. Appe llant’s mother, after describing challenges earlier in appellant’s life, stat ed that when she visited in April 2012, she had never seen appellant so happy, and that he was “very a ttentive with his son and genuinely loved his
life with his son and the mother of his son.” Appellant’s uncle asked for leniency, noting that being a first time father brought new responsibilities appellant was not used to and stating his belief that appellant could be a “loving father as we ll as a responsible parent.” A friend in whose home appellant had lived described him as “responsible, respectful, reliable, helpful and just an all round good guy” and stated that her daughter loved him and he could be a good father if given a chan ce. Appellant’s cousin said he had known appellant to be “a well-manne red and well-behaved individua l throughout his life” and had never seen appellant harm any of the 40 to 50 cousins who would play together at annual family reunions while they were gr owing up. The grandmother of appellant’s niece stated that appellant had lived with he r when he first moved to California and he had “always been kind, respectful and we ll mannered,” and “trustworthy with my granddaughter and my home.” Appellant had three prior felony convic tions from Florida: unarmed burglary of an unoccupied structure or co nveyance in 2006, grand theft of a vehicle in 2007, and resisting an officer with violence in 2008. He also had a 2011 misdemeanor conviction from Lake County for resist ing a public officer.8 DISCUSSION
I. Article I, section 17, of the California Constitution provides: “Cruel or unusual punishment may not be inflicted or excessive fines imposed.” Appellant contends that his nine-year sentence is unconstitutionally “unusual” within th e meaning of this provision because it is greater than the punishment he woul d have received if he had
committed the same act but Damian had died. 2 Appellant pled guilty to “abus ing or damaging the health of a child” in violation of section 273a, subdivision (a). This stat ute provides: “Any person who, under
circumstances or conditions likel y to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts th ereon unjustifiable physic al pain or mental suffering, or having the care or custody of any child, willfully ca uses 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 th e state prison for two, four, or six years.” Appellant admitted the special allegation under section 12022.7, subdivision (d): “Any person who personally inflicts great bod ily injury on a child under the age of five years in the commission of a felony or a ttempted felony shall be punished by an

2 We consider this argument despite appellant ’s failure to raise it in the trial court. Although failure to contemporan eously object has frequently been held to forfeit a claim that a sentence constitutes cruel and unusual punishment (e.g., People v. Speight (2014) 227 Cal.App.4th 1229, 1247; People v. Norman (2003) 109 Cal.App.4th 221, 229-230), appellant’s particular argument is not fact- bound in the way such claims often are. ( Speight
, at p. 1247; People v. Russell (2010) 187 Cal.App.4th 9 81, 993.) Appellant specifically disavows any attempt to make an “as applied” claim of cruel or disproportionate punishment, describing his cl aim as raising the pure ly legal issue that “regardless of the particular circumstan ces,” the statutory provisions for greater punishment for violating secti on 273a where the injury results in great bodily injury than where the injury results in death prescribe unconstitutiona lly unusual punishment. In any event, we would have to address the merits of appellant’s argument in the context of his ineffective assistance of counsel claim.9 additional and consecutive term of imprisonment in the state prison for four, five, or six years.” Appellant suggests that if Damian had di ed, he might have been charged with and convicted of involuntary manslaughter—not murder, because ther e was no evidence of malice aforethought, and not vo luntary manslaughter, because there was no evidence of intent to kill. Involuntary manslaughter carries a sentence of two, three, or four years. (§ 193, subd. (b).) In this event, he reasons , his sentence could no t have been enhanced under section 12022.7 because subdivision (g) of that statute provides that it does not apply to murder or manslaughter. His ma ximum sentence thus would have been four years rather than the 12-year maximum he fa ced under sections 473a , subdivision (a), and 12022.7, subdivision (d). And if the court di d not find aggravating circumstances (as he points out it did not in the present case), his sentence would have b een three years. Alternatively, if Damian had died, appella nt suggests he could have been charged, as he was, with violating section 273a, subdivision (a), a nd an enhancement under section 12022.95: “Any person convicted of a violation of Sec tion 273a, who under
circumstances or conditions likel y to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts ther eon unjustifiable physical pain or injury that results in death, or having the care or cust ody of any child, under circumstances likely to produce great bodily harm or death, willfully cau ses or permits that ch ild to be injured or harmed, and that injury or ha rm results in death, shall re ceive a four-year enhancement for each violation, in additio n to the sentence provided for that conviction.” His
maximum sentence in this case would have been 10 years, or, if the court did not find the offense aggravated, eight years. 3

3 Appellant offers several reasons why, if Damian had died, it would have been improper for the district attorney to charge a great bodily injury enhancement under section 12022.7. The first is that the Legislature’s enactment of section 12022.95 indicates it intended this more specific stat ute and not section 12022.7 to apply to a conviction of section 273a, subd ivision (a), resulting in death. Second, the exception for murder and manslaughter stated in sec tion 12022.7, subdivision (g), implies the Legislature did not intend section 12022.7 to apply where the victim is killed. Third,10 Appellant reasons that because “usually ” a more serious crime carries a more severe punishment, it is unconstitutionally “u nusual” to impose a greater sentence for a
less serious crime. In People v. Schueren (1973) 10 Cal.3d 553 ( Schueren ), the defendant was charged with assault with intent to commit murder but convicted of the lesser
included offense of assault with a deadly weapon. ( Id. at pp. 556, 558.) Under the laws then in effect, the penalty for assault with a deadly we apon was “imprisonment in the state prison for six months to life or a county jail term or fine” while the penalty for assault with a deadly w eapon with intent to comm it murder was “one to fourteen years in prison.” ( Id. at pp. 556-557.) As a result of being convicted of the lesser offense, the defendant faced a maximum term of life impr isonment rather than the maximum 14 years
he would have faced if co nvicted as charged.
Schueren explained that while earlier caselaw 4 had held a punishment could be deemed unconstitutionally “unusu al” only by means of a “ ‘disproportionate’ test,” the California Supreme Court had subsequently adopted anothe r method, giving “a literal interpretation to the word ‘unusual.’ ” ( Schueren
, supra , 10 Cal.3d at pp. 559-560, discussing People v. Anderson (1972) 6 Cal.3d 628, 654.) Schueren concluded: “Here had defendant pleaded guilty to the offense ch arged or been found guilty of that offense his prison term could not have exceeded 14 years but by asserting his constitutional rights against self-incrimination and to a jury tr ial and by successfully defending against the crime charged but not against an included offense, he is now faced with the possibility of life in prison. Under the circumstances we be lieve that a prison term exceeding 14 years is, literally, an ‘unusual’ puni shment—i.e., a punishment that in the ordinary course of
section 12022.7 refers to “g reat bodily injury ” without reference to “death,” and the Legislature has indicated that “great bodily injury” does not include death in the many statutes that expressly define offenses or enhancements with refe rence to both great bodily injury and death (e.g., § 273a, subd. (a) [child abuse under circumstances “likely to produce great bodily harm or death”]; § 422 [threat to commit crime “which will result in death or great bodily inju ry”]; § 12022.5, subd. (d) [use of firearm with “intent to inflict great bodily injury or death”]; § 12022.53, subd. (d) [discharge of firearm causing “great bodily injury . . . or death”].)

4 In re Finley (1905) 1 Cal.App. 198, 201-202.11 events is not inflicted. It would seem indisputable that an accused is normally not subject to an increased maximum prison term as a consequence of, inter alia, exercising his constitutional rights and successfully defending against the crime charged. In our opinion such a term under the circumstances is contrary to ‘the requirements of regularity and fairness’ embodied in article I, [form er] section 6 [now section 17] (see Furman v. Georgia , 408 U.S. 238, 276-277 [conc. opn. by Brennan, J.]).” ( Schueren
, at pp. 560- 561, fn. omitted.) Contrary to appellant’s argumen t, the present case is not like Schuerer. Appellant “has not been prejudiced by asserting his constitutional ri ghts to self-incrimination and trial by jury; did not successfully defend agai nst the charged crime; and, upon judgment, he did not suffer a greater sentence for a lesser included offense.” ( People v. Macias (1982) 137 Cal.App.3d 465, 476-477 [distinguishing Schuerer in rejecting claim that sentence for attempted second degree murd er was cruel and unusual because it was
identical to sentence for atte mpted first degree murder].) “[I]n our tripartite system of government it is the function of the legislative branch to define crimes and prescrib e punishments” and “such questions are in the first instance for the judgment of the Legislature alone.” ( In re Lynch (1972) 8 Cal.3d 410, 414.) Although “ ‘the final judgment as to wh ether the punishment it decrees exceeds constitutional limits is a judicial function,’ ” the Legislature is “ ‘a ccorded the broadest discretion possible in enacting penal statutes and in specifying pun ishment for crime’ ” ( ibid. , quoting People v. Anderson
, supra , 6 Cal.3d at p. 640) and “ ‘ “[s]tatutes must be upheld unless their unconstitutionality clearly, positively and unmistaka ble appears.” ’ ” ( Lynch , at p. 415, quoting In re Dennis M. (1969) 70 Cal.2d 444, 453.) Here, appellant’s sentence was a function of the prosecutor’s charging discretion and the court’s discretion in sentencing. He points to scenarios under which his sentence would exceed what it might have been if Damian had died. But he ignores the obvious possibility that his sentence c ould have been far greater in that tragic event. As respondent points out, if the ch ild had died and appellant ha d been charged and convicted under section 273ab, his senten ce would have been 25 year s to life. Section 273ab,12 subdivision (a), provides: “Any person, havi ng the care or custody of a child who is under eight years of age, who assaults the ch ild by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child’s death, shall be punished by imprisonment in the state pr ison for 25 years to life. ” Appellant’s reply brief does not respond to this point. Appellant further bases his claim of unconstitutionally “unusual” punishment on the fact that the great bodily injury enha ncement made his section 273a conviction a “violent felony” under section 667.5, subd ivision (c)(8). As a result, appellant is precluded from accruing more than 15 percent of worktime credit. (§ 2933.1, subd. (a).) Appellant argues that he will be required to se rve seven and two-thirds years of his nineyear sentence, whereas if Damian had died and appellant had been convicted under
section 273a with an enhancement unde r section 12022.95, his maximum 10-year
sentence could have been reduc ed by half with worktime cred it to only five years (or a middle term eight-year sentence reduced to four years). Again, this argument ignores the fact that if Damian had died appellant c ould have been charged under section 273ab, which carries a minimum 25 year and potential life term sentence. In short, the fundamental premise of ap pellant’s argument—that his sentence is unconstitutionally “unusual” because it is long er than what he would have received if Damian had died—is faulty. His sent ence may be longer than one which might have resulted from a prosecution based on the child’s death but it is far shorter than another that appears at least equally likely to have resulted.
II. Appellant next challenges the trial cour t’s reasons for imposing middle terms on
the offense and the enhancement. Under section 1170, subdivision (b), “W hen a judgment of imprisonment is to be imposed a nd the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . In determining the appropriate term, the cour t may consider the record in the case, the probation officer’s report, other reports, incl uding reports received pursuant to Section 1203.03, and statements in aggravation or mitigation submitted by the prosecution, the13 defendant, or the victim, or th e family of the victim if th e victim is deceased, and any
further evidence introduced at the sentencing hearing. The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set
forth on the record the reasons for imposing the term selected and the court may not impose an upper term by usin g the fact of any enhancem ent upon which sentence is imposed under any provision of law.” “The court shall state the reasons for its sentence
choice on the record at the time of sentencing.” (§ 11 70, subd. (c).) The sentencing judge may consider any factor “reasonably re lated to the sentencing decision.” (Cal. Rules of Court, rule 4.420(b); rule 4.408( a) [enumeration of criteria for discretionary sentencing decisions does not preclude application of ad ditional criteria “reasonably related” to decision].) The trial court’s de cision is subject to review for abuse of discretion. ( People v. Sandoval (2007) 41 Cal.4th 825, 847.) Appellant views the court as having chos en the middle term rather than a lower
term sentence on the offense because the first probation report “did not inform her of the nature of the injuries” and the second report “informed her th at they were ‘far more grave than they originally appeared . . . in the first proba tion report.’ ” This reason was unsupported, he argues, because the second report did not contain any information showing the injuries were more grave than origina lly reported. Appellant sees the court as having imposed the middle term on the enhancement because it was concerned about the credibility of Hulbert’s re port that Damian was doing well and argues that the court irrationally declined to impos e a mitigated term based on the lack of corroborating evidence. Instead, appellant ur ges, if the court felt current information from a medical professional was necessary, it should have requi red probation to obtain such information
from medical staff at the clinic wher e the child was seen for check-ups. A review of the transcript of the senten cing hearing shows that the court did not base its decisions on any one factor but on a considered weighing of a number of factors
relevant to the case. At the outset of the he aring, the court stated that it was not going to grant probation, as appellant was presumptivel y ineligible for proba tion due to his prior felony convictions (§ 1203, subd. (e )(4)) and there were no unusual circumstances to14 overcome the presumption, 5 but that it was not convinced it was an aggravated case as the probation department urged. The court note d that appellant was entitled to recognition of the mitigating factor that appellant gave an early plea, a point not mentioned in the probation report, questioned th e applicability of one of the aggravating circumstances the probation report had listed—that “the defenda nt engaged in violent conduct that may indicate a serious danger to society”—and no ted that appellant “may or may not have been on probation.” The court then listed the aggravating f actors that did apply: the victim was particularly vulne rable; appellant had numerous prior convictions (all “theftrelated . . . and/or driving, driver’s li cense-related”) and his prior performance on probation had been unsatisfactor y. The court pointed out th at “the victim is someone who can’t talk” and stated that it believed ap pellant had not been ho nest throughout the investigation “right up until to day.” The court stated it wa s “not happy about imposing
this sentence” but “there’s an infant who has been severely assaulted, violently assaulted if you believe the doctor at Children’s Hospital in Oakland, and I do believe him. He’s got no motive or reason to mischaracterize or add hyperbolae to the di alogue. [¶] And to break or fracture six ribs, either by a hand to the back or squeezing or something else in my view earns you a prison sentence. And I don’t think it is an aggravated case and I don’t think it’s a mitigated case either, so I am inclined to impose the midterm.” Regarding the enhancement, the court noted th at it could not “double up” on the conduct

5 The defense had argued for probation, ur ging that the case was “unusual” in that the incident was the result of the “immature and inappropriate response of a new and untrained father” who panicked in a stressful s ituation, not a deliberate act of violence, as well as that appellant was “you thful” and had no recent record of violence. As factors supporting probation, the defe nse asked the court to consid er the incident an unusual circumstance, unlikely to recur, noting Dr. Ke lly’s statement that appellant’s prognosis for rehabilitation was good and that there wa s good reason to believe he would cooperate with probation, and urging that appellant’s fe lonies were five years prior, when he was 18 to 19 years old, that his incarceration woul d have a detrimental effect on his child and Hulbert, and that probation’s assessment a nd the letters from a ppellant’s family and friends indicated it was unlikely he would be a danger to society.15 that constituted the offense and that the proba tion officer “misapplied the enhancement in recommending the aggravated senten ce or aggravated term.” There is no merit to appellant’s claim th at the only reason the court did not impose
a lower term was a mistaken view that the amended probation report demonstrated the injuries were more severe than first reporte d. True, the second report did not indicate a difference in the specific injuries—“serious in jury to his muscles, severe bruising and injury to his back” an d six fractured ribs. But it did provide more detail, in particular with regard to the doctor’s opi nion as to how the injuries we re inflicted. The first report related the doctor’s view that the injuries were the result of “being struck with a blunt object, namely a hand, and the baby had been st ruck multiple times,” and that “these were
some of the worst he has ever seen.” The second report added th e doctor’s response to the question whether appellant’s explanation of the incident was possible. The response both underscored the severity of the injuri es and indicated appellant was not being
truthful: The doctor stated that fractured ribs are most commonly causes by “squeezing the chest to the point of rib fracture” or punc hing or kicking, that “ ‘nothing characterized as a pat would be consistent with these injuri es, they were very unusually serious’ ” and that the injuries reflected “ ‘a violent assau lt.’ ” In light of this report, the court’s statement that “[t]he nature of the injuries are far more grave th an they originally appeared to me in the first probation report” is entirely unsurprising. The court noted at the hearing that it had wanted the second report because it felt “not fully informed as to the nature of the injuries, what the medical pr ofessionals assessed the injuries to be and what the medical professionals were going to opine as to the ca use of the injuries” because appellant’s explanation of the events was so different from the prosecution’s. The information contained in the second pr obation report amply supported the court’s conclusion that the injuries Da mian suffered were so severe that a mitigated term was not justified. 6

6 In addition to the new conversation wi th Dr. Crawford-Jakubiak, as described above, the second probation report added comments from Detectives Pintane and Waidelich, which stated in strong terms their concern about the severity of Damian’s16 Appellant argues that he claimed Da mian’s injuries were caused by his accidentally dropping the baby, not by his “patting,” and th e probation report suggests the doctor was not properly informed of appellant’s explanation or asked whether the injuries were consistent with a fall. This challenge to the significance of the doctor’s opinion is not persuasive. The statement in appellant’s brief that he “did not claim that patting the child caused the injuries” is dire ctly contrary to his statemen t to the probation officer as related in the probation report: “The defendant claimed he did not hit his son in anger, but did possibly pat him too hard while trying to comfort him, and in doing so, caused his injuries.” Similarly, the probation report states that a ppellant “eventually told Detective Pintane he had probably patted his son too hard and that is what caused his injuries.” Additionally, the probation officer’s evalua tion states that the doctor who examined Damian at the hospital “stated th e injuries were not caused by a fall, but were the result of being struck multiple times with a blun t object, namely, a person’s hand.” The court’s final explanatory statemen t makes clear that it considered the arguments for imposing either an aggravat ed term, as the pr obation department recommended, or a mitigated term, as the de fense requested, and concluded neither was appropriate. The court stated: “I don’t find the aggravated terms identified by probation is convincing that this meets the objective of sentencing. I do have the defendant’s age in mind. I don’t think this is a mitigated term because I think this was a violent assault on an infant and to which the inju ries cannot be explained by a nything other than intentional conduct of a very violent nature and the mitig ated term is definite ly not appropriate.” The court’s reasons for imposing the middle te rm are amply supported by the record. Appellant’s argument concerning the senten ce choice on the enhancement is also unavailing. Focusing on the co urt’s request for additional in formation about the current condition of the child, appellant argues that the court declined to impose a mitigated term because it did not believe Hulbert’s reports that the child was fine. This reason,

injuries and appellant’s attempt to conceal wh at happened despite the risk to the child. The court did not mention these comments.17 according to appellant, was irrational because it treated the lack of wh at the court deemed
credible evidence that Da mian was doing well as evidence that he was not doing well. At the hearing on January 11, 2013, the court declared that the probation officer’s report was “inadequate . . . [¶] . . . by the st andards that I expect in a case like this, especially given the amount of potential time that ’s to be imposed. . . . [¶] . . . [¶] In particular, I am going to send it back. And I wa nt the report to incorporate the findings or observations of Dr. Kelly. In particular, also , I want to see more reliable information
about the—what’s the current condition of this child.” With respect to Damian’s current cond ition, the first probation report related
Hulbert’s statements that the child was “ ‘doing great’ and seem[ed] to have recovered completely” and that she had been told he would have “ no permanent damage.” The second report stated that Dr. Crawford-Jakubi ak had been unable to provide information
on Damian’s current condition be cause the child had not return ed for any follow-up care. Hulbert, asked again about Da mian’s progress, told the probation officer that he was “ ‘. . . doing fine, healthy and happy’ ” and th at the medical staff who had seen him for well-baby check-ups had not expressed concer ns or asked questions about his previous injuries. As we have said, the probation depart ment in its amended report altered its position, recommending imposition of the aggrav ated term on both the offense and the
enhancement rather than the middle term s it originally recommended; the defense requested mitigated terms. At the beginni ng of the hearing, the court stated it was inclined to impose the middle te rm on the offense and either the middle or mitigated term on the enhancement. The prosecutor, emph asizing the amount of force necessary to break the baby’s ribs and a ppellant’s attempt to evade responsibility, requested an aggravated term on the offense and a mitigated term on the enhancement. The probation officer argued for “at least” the middle te rm on the enhancement because six fractured ribs, while possibly not rising to the le vel of “aggravated” because there was no permanent disfigurement and the child would recover, was “serious injury” justifying a
middle term “for the amount of pain and suffering” caused.18 These last comments were apparently pers uasive to the court, which explained its
sentence on the enhancement as follows: “I think [the probation officer’s] observations actually are pretty relevant. This is not an aggravated term, I have made that clear; however, this isn’t an instant [ sic ] where there is just bruising. At least six ribs were
fractured and the information that we have fr om the mother is that the child is doing well medically. It’s not been confirmed by any me dical professional. While I am not overly suspicious of her representation, I am concer ned about her ability to report objectively. So I think the middle term of five years is a ppropriate for a total confinement time of nine years.” Appellant likens this case to United States v. Weston (9th Cir. 1971) 448 F.2d 626 ( Weston ). There, after the defendant was found guilty of a drug offense, the trial court
indicated its view that the minimum senten ce of five years would be appropriate. ( Id. at p. 628.) The court then received a presentenc e report stating that federal narcotics agents
had advised that the defendant was the chie f supplier of heroin to the area, having
travelled to Mexico or Arizona as often as every two weeks to ob tain $60,000 worth of
heroin which she distributed to dealer s, earning approximately $140,000. ( Ibid. ) The defendant denied the allegations. ( Id. at pp. 629-630.) Based upon the report, the court imposed the maximum sentence of 20 years. ( Id. at p. 630.) Vacating the sentence, the reviewing court stated: “In essence, then, what we have is a conviction at a trial providing all of the safeguards required by th e Constitution, of an of fense warranting, in the opinion of the trial judge, th e minimum sentence of five years. This is followed by a determination, based on unsw orn evidence detailing otherwis e unverified statements of a
faceless informer that would no t even support a search warrant or an arrest, and without any of the constitutional safegua rds, that Weston is probably guilty of additional and far more serious crimes, for which she is then gi ven an additional sentence of fifteen years. [Citations.] To us, there is so mething radically wrong with a system of justice that can produce such a result. . . .” “In Townsend v. Burke [(1948) 334 U.S. 736], the Supreme
Court made it clear that a sentence cannot be predicated on false info rmation. We extend it but little in holding that a sentence cannot be predicated on information of so little19 value as that here involved. A rational pe nal system must have some concern for the probable accuracy of the informationa l inputs in the sentencing process.” ( Weston , at pp. 630-631, 634.) Appellant characterizes the presen t case as the “mirror image” of Weston , arguing that just as the court in Weston could not assume the truth of information damaging to the defendant that the defendant disputed and the evidence did not support, the trial court in the present case could not assume the falsity of information favorable to appellant in the absence of evidence contradicting it.
We do not view the court’s comments as indicating it would have imposed a mitigated term but for its c onclusion, based on its distrust of Hulbert’s report, that
Damian was not doing well medically, or even that it in fact concluded Damian was not doing well. We read the remarks as a partia l explanation why the court felt a mitigated term was not appropriate in light of the seriousness of the injuries. The court had previously expressed its concern about Hu lbert’s objectivity, noting her support of appellant despite his not being forthcoming with her about the incident, and, particularly, her comment to the probation officer that “this whole thing has been blown out of proportion.” This, the court felt, suggeste d Hulbert was “somebody not really looking out for their kid, that’s somebody looking at something else.” In our view, the court was not saying it was rejecting the mitigated term because it believed Damian was still suffering from his injuries but rather that it wa s not prepared to rely upon Hulbert’s report that the child was fully recove red as the basis for imposing a mitigated term despite the seriousness of the injuries inflicted. Appellant urges that the court should ha ve requested additional information if it did not believe Hulbert, stress ing that the court’s need fo r information about Damian’s
current condition was the reason it sent the case back for a new probation report after the January hearing. But this does not mean th at evidence from a medi cal professional that
the child had recovered would have persuaded the court to impose a mitigated term on the enhancement. In January , when the court asked for mo re reliable information about
the current condition of the child, it explained, “I have be en left with a certain impression20 that I am—I believe I may be wrong about. So instead of leaving me with an impression,
I want to know what the facts are.” At the February 5 hearing, the court remarked that it had requested the second report because the first one left it feeling “not fully informed as to the nature of the injuries, what the medical professionals as sessed the injuries to be and what the medical professionals were going to opine as to the cause of the injuries,” and that it now believed the injuries were “far more grave than they originally appeared to me in the first probation report.” It is obvious th at, after the first report, the court felt current
information was critical to confirm or refute its impression that the injuries were less significant. But after the second report, the c ourt’s view of the nature of the injuries was
different. Given the additional information about the injuries and, particularly, how they were caused, it is reasonable to infer that information about the child’s current condition became much less important. In sum, the court reached a thoughtful and balanced decision on sentencing. The court expressly considered m itigating factors, including appe llant’s age and Dr. Kelly’s
view that the incident was the result of his inexperience and immatu rity, but found them outweighed by the severity of the injuries , which indicated a violent assault, and appellant’s attempt to evade re sponsibility rather than seek immediate medical attention
for his child. 7 We find no abuse of discretion.
III. Appellant’s final contention is that he was denied his constitutional right to
effective assistance of counsel by his attorney’s failure to obj ect to the sentence imposed as constitutionally “unusual” and to the co urt’s reasons for imposing middle terms as unsupported by the record and irrational. He further urges that a reasonably competent attorney would have asked the court to dismi ss the enhancement in th e interests of justice pursuant to section 1385 in orde r to avoid double punishment.

7 The court expressly acknowledged its respect for Dr. Kelly and the weight it gave his opinion, but stated that it thought he “reached his conclusion without giving the proper weight to the na ture of the injuries.”21 “ ‘ “ ‘In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was “deficie nt” because his “representation fell below an objective standard of reasonableness . . . under prevailing professional norms.” [Citations.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof. [Citation.] Prejudice is shown when there is a “reasonable probability that, but for counsel’s unprofessional errors, the re sult of the proceeding would have been different. A reasonable probability is a prob ability sufficient to u ndermine confidence in the outcome.” ’ ” ’ [Citation.]” ( People v. Vines (2011) 51 Cal.4t h 830, 875-876, quoting People v. Lucas (1995) 12 Cal.4th 415, 436.) We have already concluded that appellant ’s challenges to his sentence based on the prohibition against “unusu al” punishment and the cour t’s reasons for imposing the middle term are unavailing. The only question remaining, therefore, is whether defense counsel’s representation was constitutionally de ficient based on his failure to ask the court to strike the great bodily injury enhanc ement. “Although section 1385 provides that a dismissal ‘in furtherance of justice’ may be ordered either on the motion of the district attorney, or on the court’s motion, a defendant may invite the court to exercise its power by an application to strike a count or allega tion of an accusatory pleading, and the court
must consider evidence offere d by the defendant in suppor t of his assertion that the dismissal would be in furtherance of justice.” ( Rockwell v. Superior Court (1976) 18 Cal.3d 420, 441-442.) Appellant’s argument that a competent a ttorney would have asked the court to
strike the enhancement is based on his view th at using the nature of the injuries both to establish the “great bodily injury” enhancement and to impose a higher sentence on the offense than would otherwise be imposed entailed “an element of double punishment.” 8

8 Appellant stops short of an actual doub le punishment argument. In the context of his cruel and unusual punishme nt argument, he stated that he “is not making a ‘double punishment’ argument, but the fact remains that he is being punished by an enhancement, based on the same fact on which his c onviction and punishment for the underlying offense are based.”22 Appellant urges that the injury “probably” would not have warrant ed a conviction under section 273a or a prison term for that offens e if it had not been a “possibly great bodily injury,” 9 so imposing middle terms for both the offense and the enhancement based on the nature of the injuries “was arguably ex cessive punishment.” But a violation of section 273a is not based on the severity of the injury; indeed, it ma y apply in the absence of any physical injury, if the child is subjecte d to “unjustifiable . . . mental suffering” or
the child’s “health is endangered.” The focus of the statute is on the conduct of the
defendant and circumstances involved. A fe lony offense under sec tion 273a, subdivision (a), is committed by a person who “ under circumstances or conditions likely to produce great bodily harm or death , willfully causes or permits a ny child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or perm its the person or health of th at child to be injured, or willfully causes or permits that child to be placed in a situa tion where his or her person or health is endangered . . . .” (Italics added .) The offense is a misdemeanor if committed
“under circumstances or conditions other than those likely to produce great bodily harm or death.” (§ 273a, subd. (b).) And, as we have explained, the court’s decision to impose
middle terms on the offense and on the enha ncement were not based solely on the aggravated nature of the injuries. Putting aside the question whether a reas onably competent atto rney would have asked the court to strike the enhancement, we are not convinced there is a reasonable probability appellant woul d have obtained a more favorable result if defense counsel had done so. Appellant argues it is reasonably probable the court would have stricken the great bodily injury enhancement if defens e counsel had raised the matter because the court’s remarks at sentencing demonstrat ed it recognized th e “double-punishment

9 Although he admitted the great bodily in jury enhancement, appellant argues on appeal that the rib fractures “may or may no t have constituted ‘great bodily injury,’ ” as reflected in the facts that they did not appear on the first se t of x-rays but only on the second and that Hulbert reporte d Damian having completely recovered and the doctors having said he would have no permanent damage.23 problem,” the court stated it was “not happy about imposing this sentence,” the child’s injuries were not severe and, if the defe nse had offered evidence that Damian had completely recovered, the court would have given appropriate weight to Hulbert’s report
of his condition and viewed the injuries as “not great.” The court’s comments regarding double pun ishment were part of its explanation why it disagreed with probation’s recomme ndation of an aggravated term on the enhancement. After describing Damian as ha ving been “severely assaulted, violently assaulted,” and declaring that the section 273a offense was neither aggravated nor mitigated, the court explained why the enhancement did not wa rrant an aggravated term:
“You have to take the conduct into account of the principal count to which he has been convicted and that is basically felony child a buse. So you don’t get to double it up on the enhancement. And the interp retation of what term to recommend on enhancement is based on severity, permanency a nd nature of the injury.” The court’s view that imposing an aggravated term on the enhancement in addition to the punishment fo r felony child abuse would amount to “doubling up on the enhancement” does not suggest it would have been receptive to an invitation to dismiss the enhancement altogether. First, the court’s observation was consistent with section 1170, subdivision (b), which provides that the court “may not impose an upper term by using the fact of any enhancement upon whic h sentence is imposed under any provision of law.” (Italics added.) Second, the cour t declined to impose a mitigated term on the
enhancement because of the se verity of the injuries. Ap pellant’s statement that the injuries were not severe utterly ignores D r. Crawford-Jakubiak’s st atements that they were “some of the worst he ha[d] ever seen,” “very unusually serious” and the result of “ ‘a violent assault.’ ” The court repeatedly expressed its view that the injuries were extremely serious.
The court’s comment that it was not ha ppy about the sentence it was imposing
does not alter this assessment. As we have said, the court took a balanced approach to this case; it expressly considered the mitig ating evidence of appellant’s age and Dr. Kelly’s view that the incident was the result of appellant’s inexperience and immaturity,24 as well as appellant having en tered an early plea. The court made clear that it believed the probation officer had overstated the ne gative, specifically in failing to mention appellant’s plea and in applying the aggravating factor that “[t]he defendant has engaged in violent conduct that may indicate a serious danger to society.” (Rule 4.421(b)(1).) “Nevertheless,” the court stated, “I have to lo ok at the overall result.” At this point, after remarking on the victim’s infanc y and appellant’s dishonesty about the incident, the court stated, “And that doesn’t mean that I happily impose this sentence. In fact, I am not happy about imposing this sentence. But th ere’s an infant who has been severely assaulted, violently assaulted . . . .” In cont ext, it is apparent that the court was remarking on the sadness of the case in its entirety, the fact that it called for so significant a punishment, not expressing unhappiness about being required to impose a harsher sentence than it felt appropriate. Nor is it reasonably probable appellant would have obtained a more favorable
result if defense counsel had offered eviden ce to corroborate Hulbert’s report that Damian was doing well medically. As we have said, while the court expressed skepticism about Hulbert’s obj ectivity, there is no indication it based its sentencing
decision on a conclusion that Damian had not recovered from his injuries. We recognize that the court considered, and even expre ssed inclination toward, imposing a mitigated term on the enhancement. Indeed, the court expressed this inclination immediately after its initial comments questioning Hulbert’s view of the case. But it then concluded the middle term was appropriate after further argument from the defense (stressing the absence of maliciousness in appe llant’s conduct), the prosecut or (emphasizing appellant’s attempts to evade responsibility and Hulbert’s statement that she and appellant were not together because of his beco ming violent when dr unk, yet requesting the mitigated term on the enhancement), and the probation offi cer (emphasizing the am ount of pain and suffering Damian was caused). Given the co urt’s focus on the aggravated nature of Damian’s injuries, we see no reasonable prob ability that evidence Damian was currently doing well would have pe rsuaded the court even to impose a mitigated term, much less to strike the great bodily injury enhancement.25 DISPOSITION The judgment is affirmed.26 _ ____________ ____________ Kline, P.J.

We concur:

_____________ ____________ Richman, J.

_____________ ____________ Stewart, J.