People v. Roman CA4/1 ( 2024 )

Filed 10/21/24 P. v. Roman CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D083171
Plaintiff and Respondent,
v. (Super. Ct. No. SCD292742)
JOSHUA ROMAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Eugenia A. Eyherabide, Judge. Affirmed.
David R. Greifinger, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Laura G.
Baggett and Robin Urbanski, Deputy Attorneys General for Plaintiff and
Respondent.
I
INTRODUCTION
A jury found Joshua Roman guilty of felony child abuse (Pen. Code,1
§ 273a, subd. (a)), after he violently shook his two-month-old son, causing the
infant to suffer from life-threatening brain bleeding and spinal injuries. The
jury also found true a sentencing enhancement allegation that Roman
personally inflicted great bodily injury on his son (§ 12022.7, subd. (d)). The
trial court found three aggravating factors to be true, struck the punishment
for the great-bodily-injury enhancement, and sentenced Roman to state
prison for the midterm of four years.
Roman appeals the judgment of conviction. He contends the trial court
improperly violated the ban on dual use of facts when it imposed the midterm
for the felony child abuse conviction, rather than the low term. In particular,
he claims the court erroneously imposed the midterm based, in part, on two
aggravating factors that overlapped with elements of the offense of felony
child abuse, the great-bodily-injury enhancement, and the third aggravating
factor. We reject this argument and affirm the judgment.
II
BACKGROUND
A. Factual Background
Roman and A.V. both served in the military. They got married and, a
few months later, had a child, E.R. E.R. experienced minor reflux and
breathing issues after his birth, but there were no concerns with his overall
health or well-being.
One day, when E.R. was two months old, Roman and A.V. learned that
neither of them had been “ranked up,” or promoted, within the military.
1 Further undesignated statutory references are to the Penal Code.
2
After they received this disappointing news, Roman told A.V. to have a
relaxing afternoon to herself. A.V. fed E.R. and left the family home at about
4:00 or 4:30 p.m. to enjoy her afternoon alone.
A few hours later, Roman called A.V. and told her she needed to return
home immediately because E.R. was nonresponsive. A.V. raced home and
told Roman to call 9-1-1. When she got home, E.R. was lying on the floor and
Roman was on the phone with 9-1-1. E.R. was nonresponsive and he looked
very pale. A.V. rubbed E.R.’s chest and he made grunting sounds. A.V.
believed the child was having a seizure.
Paramedics and other first responders arrived at the home shortly after
A.V. E.R. was still in distress and lying on the floor. He was not awake, his
complexion was gray and ashy, and his body went rigid. The paramedics ran
an electrocardiogram test, which confirmed E.R. had a heartbeat, and then
transported him to the hospital by ambulance. While en route, E.R.’s body
went rigid again and his arms flexed outward. The paramedics administered
an antiseizure medication and determined E.R. was experiencing posturing,
an abnormal positioning of one’s limbs caused by an internal brain injury.
E.R. was treated in the hospital’s emergency room trauma bay. He
continued to posture and did not respond normally to stimuli. He was
administered another antiseizure medication and a medication to prevent a
potentially fatal herniation. A CT scan showed E.R. suffered from
subarachnoid and subdural brain bleeds.
E.R. was admitted to the hospital’s pediatric intensive care unit and
diagnosed with traumatic brain injury most likely from nonaccidental
trauma, with a risk of cerebral deterioration. CAT scan images showed acute
subdural hemorrhaging along the right frontal and temporal lobes of the
brain. Other images showed bleeding on the left frontal lobe, bleeding in the
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subdural space, and bleeding deep in the brain tissue on both sides of the
brain, which was indicative of a high level of trauma. They also showed
subarachnoid hemorrhages in the back of the brain, which was consistent
with a shaking-type injury. MRI imaging showed abnormal fluid in the spine
from bleeding in the head that had tracked down along the back of the spine,
causing compression in the spinal cord. E.R. also had extensive retinal
hemorrhages in his eyes radiating around the optic nerve out to the periphery
in a pattern that was consistent only with nonaccidental trauma, or shaken-
baby syndrome.
The hospital’s section chief for child abuse pediatrics examined E.R.
and reviewed his medical records. Based on her patient examination and
review of the medical records, she concluded E.R.’s injuries were caused by
nonaccidental trauma.
E.R. was discharged from the hospital four days after he was admitted.
At the time of trial, he appeared to be a healthy 13-month-old toddler.
B. Procedural Background
The San Diego County district attorney charged Roman by information
with one count of felony child abuse in violation of section 273a,
subdivision (a). She alleged he personally inflicted great bodily injury on a
child under the age of five years within the meaning of section 12022.7,
subdivision (d). Further, she alleged three aggravating circumstances—
(1) the crime involved great bodily injury (Cal. Rules of Court,2 rule
4.421(a)(1)); (2) the victim was particularly vulnerable (rule 4.421(a)(3)); and
(3) the defendant took advantage of a position of trust or confidence to
commit the offense (rule 4.421(a)(11)).
2 Further references to rules are to the California Rules of Court.
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After a trial, the jury found Roman guilty of felony child abuse and
found true the great-bodily-injury enhancement allegation. In a bifurcated
proceeding, the court found the prosecution proved all three aggravating
circumstance allegations beyond a reasonable doubt. In finding the great-
bodily-injury aggravating factor true, the court stated it gave great weight to
E.R.’s doctors, who testified that “excessive” and “extreme force” caused the
injuries. For the vulnerable-victim aggravating factor, the court stated,
“[E.R.] was 2 months old. I don’t think the Court needs to say much more in
reference to that.” With respect to the aggravating factor concerning abuse of
a position of trust and confidence, the court opined that Roman was E.R.’s
father, Roman took care of E.R., and E.R. “was in his arms[] [and] trusted
him.”
At sentencing, the court denied probation, struck the great-bodily-
injury enhancement, and sentenced Roman to prison for the midterm of four
years. Roman filed a timely notice of appeal from the judgment.
III
DISCUSSION
A. Sentencing Principles
“The Determinate Sentencing Act has been in effect since 1977 and
prescribes the punishment to be imposed in most noncapital felony cases.”
(People v. Scott (1994) 9 Cal.4th 331, 349 (Scott).) “Where imprisonment is
imposed, the court typically selects a lower, middle, or upper term as the base
term for the underlying offense.” (Ibid.) “An enhancement may be
authorized or required depending on the circumstances of the crime.” (Ibid.)
“An enhancement is an additional term of imprisonment added to the base
term.” (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1517.) Under the
Determinate Sentencing Act, the “court often has broad discretion to tailor
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the sentence to the particular case,” including discretion to select the base
term and strike or stay certain enhancements. (Scott, at p. 349.)
When judgment is imposed and three possible terms of imprisonment
are specified, “the court shall, in its sound discretion, order imposition of a
sentence not to exceed the middle term, except … [¶] … when there are
circumstances in aggravation of the crime that justify the imposition of a
term of imprisonment exceeding the middle term and the facts underlying
those circumstances have been stipulated to by the defendant or have been
found true beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.” (§ 1170, subd. (b)(1)–(2); see rule 4.420(a), (b).) “In selecting
between the middle and lower terms of imprisonment, the sentencing judge
may consider circumstances in aggravation or mitigation, and any other
factor reasonably related to the sentencing decision.” (Rule 4.420(d).)
“Although a single factor may be relevant to more than one sentencing
choice, such dual or overlapping use is prohibited to some extent.” (Scott,
supra, 9 Cal.4th at p. 350.) For example, a court cannot use a single fact
“constituting an element of the offense” to aggravate the base term. (Ibid.;
see rule 4.420(h) [“A fact that is an element of the crime on which
punishment is being imposed may not be used to impose a particular term.”].)
The phrase “element of the offense” refers to “an essential component of the
legal definition of the crime considered in the abstract.” (People v. Zamora
(1991) 230 Cal.App.3d 1627, 1636.) Thus, “where the facts surrounding the
charged offense exceed the minimum necessary to establish the elements of
the crime, the trial court can use such evidence to aggravate the sentence.”
(People v. Castorena (1996) 51 Cal.App.4th 558, 562.) In other words, a court
may use “facts to aggravate a sentence when those facts establish elements
not required for the underlying crime.” (Ibid., italics omitted.)
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Similarly, a court “cannot use a single fact both to aggravate the base
term and to impose an enhancement ….” (Scott, supra, 9 Cal.4th at p. 350.)
“[W]hen an appellant claims the trial court made an impermissible dual use
of a fact as both an enhancement and an aggravating factor … the reviewing
court looks at whether the trial court could have based the aggravating factor
on evidence other than that which gave rise to the enhancement. If so, the
sentence may stand.” (People v. Garcia (1995) 32 Cal.App.4th 1756, 1775.)
“[I]f the court has discretion to strike the punishment for the enhancement
and does so,” the court may also use a fact charged and found as an
enhancement as a reason for imposing a particular term. (Rule 4.420(g);
People v. Black (2007) 41 Cal.4th 799, 808–809 [“The court may not consider
any fact that is an essential element of the crime itself [citation] and may not
consider a fact charged and found true as an enhancement unless it strikes
the punishment for that enhancement.”], italics added, superseded by statute
on other grounds, as recognized by People v. Lynch (2024) 16 Cal.5th 730,
756; see, e.g., People v. Towne (2008) 44 Cal.4th 63, 76, fn. 4 [“Because the
trial court struck the enhancements that were based upon defendant’s prior
prison terms, it was free to consider those terms as an aggravating factor.”].)
B. The Trial Court Did Not Violate the Ban on Dual Use of Facts
Roman’s sole contention on appeal is that the trial court violated the
ban on dual use of facts when it imposed the midterm for the felony child
abuse conviction. Specifically, he argues the court imposed the midterm
based on two aggravating factors—the fact the crime involved great bodily
harm (rule 4.421(a)(1)), and the victim’s particular vulnerability
(rule 4.421(a)(3))—that overlapped with an element of the offense of child
felony abuse, the great-bodily-injury enhancement, and the third aggravating
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factor found true by the court, i.e., Roman’s exploitation of a position of trust
or confidence to commit the offense. We are not persuaded.
Section 273a, subdivision (a), the felony child abuse statute, provides,
“Any person who, under circumstances or conditions likely to produce great
bodily harm or death, willfully causes or permits any child to suffer, or
inflicts thereon unjustifiable physical pain or mental suffering, or having the
care or custody of any child, willfully causes or permits the person or health
of that child to be injured, or willfully causes or permits that child to be
placed in a situation where his or her person or health is endangered, shall be
punished by imprisonment in a county jail not exceeding one year, or in the
state prison for two, four, or six years.” (§ 273a, subd. (a).)
The felony child abuse statute is “ ‘ “intended to protect a child from an
abusive situation in which the probability of serious injury is great.” ’ ”
(People v. Valdez (2002) 27 Cal.4th 778, 784 (Valdez).) It defines child abuse
to include conduct that “ ‘can occur in a variety of situations: the definition
broadly includes both active and passive conduct, i.e., child abuse by direct
assault and child endangering by extreme neglect.’ ” (People v. Odom (1991)
226 Cal.App.3d 1028, 1032.) Here, the prosecution proceeded under the
theory that Roman was guilty of felony child abuse because, under
circumstances or conditions likely to produce great bodily harm or death, he
willfully inflicted unjustifiable physical pain on E.R.
Neither of the challenged aggravating factors constituted an element of
this offense. To convict Roman, the jury was required to find that he inflicted
unjustifiable physical pain on E.R., under circumstances or conditions likely
to produce great bodily harm or death. But it was not required to find, as an
element of the offense, that he in fact inflicted great bodily harm on E.R.
(Valdez, supra, 27 Cal.4th at p. 784 [“ ‘ “[T]here is no requirement that the
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actual result be great bodily injury.” ’ ”]; People v. Lee (1991) 234 Cal.App.3d
1214, 1220 [“ ‘Occurrence of great bodily injury is not an element of the
offense.’ ”].) Thus, the court did not err when it aggravated the base term due
to the fact Roman caused E.R. to suffer great bodily harm in the form of life-
threatening brain bleeding, retinal hemorrhages, and spinal injuries.
The particular vulnerability of the victim is not an element of the
offense of felony child abuse either. To prove felony child abuse, the
prosecution must establish that the victim is a “child,” (§ 273a, subd. (a)),
meaning the victim is a person under the age of 18 years old. (See People v.
Thomas (1976) 65 Cal.App.3d 854, 857.) However, it need not prove the
victim is particularly vulnerable. “Case law has explained that for purposes
of finding the aggravating factor of particular vulnerability, ‘ “[p]articularly
... means in a special or unusual degree, to an extent greater than in other
cases. Vulnerability means defenseless, unguarded, unprotected, accessible,
assailable, one who is susceptible to the defendant's criminal act.” ’ ” (People
v. DeHoyos (2013) 57 Cal.4th 79, 154.) “Thus, a crime victim can be deemed
particularly vulnerable as an aggravating factor ‘for reasons not based solely
on age,’ ” including the victim’s physical or mental condition, intoxication of
the victim, the victim’s extreme youth within a given age range, the victim’s
relationship with the defendant, or the defendant’s abuse of a position of
trust. (Ibid.; see People v. Garcia (1985) 166 Cal.App.3d 1056, 1069–1070.)
Because victim vulnerability is not an element of the offense of felony child
abuse, the trial court did not err when it used E.R.’s unique vulnerability—
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namely, the fact he was a defenseless two-month-infant who could not walk,
talk, or even move on his own—to aggravate the base term.3
The court also did not contravene the ban against the dual use of facts
by using the same fact both to aggravate the base term and enhance the
sentence. In fact, the court did not use any fact to enhance the sentence.
Instead, it struck the punishment for the great-bodily-injury enhancement
altogether. Because the court struck the punishment for the great-bodily-
injury enhancement, it could use any fact charged and found true for the
enhancement as a reason to impose the midterm sentence. (Rule 4.420(g).)
Finally, the court did not double-count Roman’s paternal relationship
with E.R. in order to find that multiple aggravating factors (the particular
vulnerability of the victim (rule 4.421(a)(3)) and the defendant’s taking
advantage of a position of trust of confidence (rule 4.421(a)(11)) warranted
imposition of the midterm sentence. The court did not reference the
relationship between Roman and E.R., nor did it mention Roman’s status as a
father or caregiver, when it found E.R. was a vulnerable victim. Further,
there was ample evidence supporting the court’s finding that E.R. was a
particularly vulnerable victim, separate and apart from the evidence of his
filial relationship with his father. As noted, that includes evidence of E.R.’s
infancy and his inability to walk, talk, or defend himself against Roman’s
forceful infliction of violence upon him.
3 In his reply brief, Roman argues for the first time that the particular
vulnerability of the victim (rule 4.421(a)(3)) and the defendant’s taking
advantage of a position of trust or confidence (rule 4.421(a)(11)) are elements
of felony child abuse because the felony child abuse statute requires the
prosecution to prove, among other elements, the defendant “ha[s] the care or
custody of [the] child.” (§ 273a, subd. (a).) We do not consider arguments
raised for the first time in a reply brief. (Crawley v. Alameda County Waste
Management Authority (2015) 243 Cal.App.4th 396, 403, fn. 4; Ko v. Maxim
Healthcare Services, Inc. (2020) 58 Cal.App.5th 1144, 1147, fn. 3.)
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IV
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
IRION, J.
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