B227026 (Cal. Ct. App. Nov. 30, 2011)



THE PEOPLE, Plaintiff and Respondent, v. DESHAWNTE BUCK WADE, Defendant and Appellant.

David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. YA073521)

APPEAL from a judgment of the Superior Court of Los Angeles County, Alan B. Honeycutt, Judge. Affirmed.

David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Deshawnte Buck Wade of involuntary manslaughter (count 1; Pen. Code, § 192, subd. (b)), and assault on a child under eight years of age by means of force that to a reasonable person would be likely to cause great bodily injury and that did cause death (count 2; § 273ab). The trial court denied probation and sentenced Wade to an indeterminate term of 25 years to life on count 2, and to a determinate 3-year midterm on count 1. The court ordered execution of the sentence on count 1 stayed, with the stay to become permanent upon completion of the sentence imposed on count 2. We affirm.

All further section references are to the Penal Code.


In May 2008, Wade lived in an apartment on Chadron Avenue in Gardena with his wife, Brittney Portis, and her two sons, J.C. and Koby B. (the victim). At that time, Koby was 18 months old. On May 4, 2008, Portis took J.C. with her on errands to a local Walgreens. Before Portis left, Koby had asked for something to eat. Portis did not notice anything unusual about Koby; he had not fallen or been involved in any type of a car accident. Portis left shortly after giving Koby a pop-tart.

When Portis returned home, she saw Koby lying on the couch. He appeared to be asleep, which Portis thought was unusual. Wade was also on the couch, looking worried. When Portis picked up Koby, he was "lifeless." Portis immediately called 911. A neighbor in a nearby apartment, Manuel Holguin, heard Portis screaming that her baby was not breathing and came over to help. After Holguin entered the apartment, Wade said, "I got the penny out." Holguin saw a penny on the floor. Holguin performed CPR on Koby until Los Angeles County Sheriff's Department Deputy Kenneth Collins responded to the family home and took over. Deputy Collins performed CPR until paramedics arrived and took over. Paramedics transported Koby to Memorial Hospital of Gardena. Later on May 4, Koby was transferred to the pediatric intensive care unit at Miller Children's Hospital in Long Beach. On May 6, 2008, doctors determined that Koby was "clinically brain dead," and removed him from life support; at about 1:30 p.m., Koby was officially pronounced dead.

In March 2009, the People filed an information charging Wade in count 1 with murder (§ 187, subd. (a)), and in count 2 with assault on a child under eight years of age by means of force that to a reasonable person would be likely to cause great bodily injury and that did cause death (§ 273ab). The charges were tried to a jury from late March into April 2010, at which time the prosecution presented evidence establishing the general historical facts summarized above. Additional evidence established that Wade had made various statements at different times to different persons explaining that Koby choked on a penny and that he had slapped Koby on the back and performed the Heimlich maneuver to dislodge the penny. Other evidence established that Los Angeles County Sheriff Department Detective Rudy Acevedo, in the company of additional deputies, searched the family's apartment on the day Koby was hospitalized. The deputies found a penny on the floor that Wade identified as the penny that Koby had put in his mouth. The deputies also found a second penny on a kitchen counter and recovered it "just to be on the safe side." Both pennies were later tested for the presence of amylase, an enzyme in saliva. Both of the pennies tested negative for amylase. Beyond the evidence establishing the facts summarized here, Wade's trial consisted largely of medical testimony which we examine in more detail below in addressing Wade's claim on appeal that his aggravated assault conviction under section 273ab is not supported by substantial evidence.

On April 9, 2010, the jury returned verdicts finding Wade not guilty of murder as charged in count 1, but guilty of the lesser crime of involuntary manslaughter, and guilty of aggravated assault under section 273ab as alleged in count 2. On August 18, 2010, the trial court denied probation and sentenced Wade to the prescribed punishment of an indeterminate term of 25 years to life on count 2. The court sentenced Wade to a determinate three-year midterm on his involuntary manslaughter conviction in count 1. The court ordered execution of the sentence on count 1 stayed, with the stay to become permanent upon the completion of the sentence imposed on count 2.

Wade filed a timely notice of appeal.


I. Substantial Evidence

Wade contends that his aggravated assault conviction under section 273ab must be reversed because it is not supported by substantial evidence. More specifically, he argues the record does not disclose sufficient evidence supporting the jury's necessarily included finding that a reasonable person would have understood that the physical force he used on Koby would be likely to cause great bodily injury. We disagree.

A. The Standard of Review

In determining whether substantial evidence supports a conviction, a reviewing court examines the evidence in a light most favorable to the jury's verdict and presumes the existence of every fact the jury could reasonably deduce from the evidence. (People v. Crittenden (1994) 9 Cal.4th 83, 139.) The same standard is applied here where the prosecution's case primarily relied on circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) A reviewing court may not upset a jury's verdict based on a claim that it is not supported by substantial evidence unless it appears that upon no hypothesis is there sufficient evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.) A reviewing court may not reweigh the evidence nor re-assess the credibility of the witnesses. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)

"[A] defendant may be guilty of an assault within the meaning of section 273ab if he acts with awareness of facts that would lead a reasonable person to realize that great bodily injury would directly, naturally, and probably result from his act. [Citation.] The defendant, however, need not know or be subjectively aware that his act is capable of causing great bodily injury. [Citation.] This means the requisite mens rea may be found even when the defendant honestly believes his act is not likely to result in such injury." People v. Wyatt (2010) 48 Cal.4th 776, 781 (Wyatt).)

B. The Trial Evidence

Because the substantial evidence standard of review requires us to examine the evidence in a light favoring the jury's verdict, our primary focus is on the prosecution's medical evidence supporting guilt. We acknowledge that Wade presented significant medical evidence in his defense case challenging the prosecution's medical evidence, but the defense's medical evidence is of secondary importance for purposes of the substantial evidence test.

Mark Wagner, M.D., graduated UCLA Medical School in 1979 and was the emergency room physician on duty when Koby arrived at Memorial Hospital. Dr. Wagner had been an emergency room physician for more than 20 years and had "seen a lot of patients in the emergency room," including both children and adults, who had choked on an item. Koby was not breathing when he arrived in the emergency room. When Dr. Wagner examined the inside of Koby's mouth to determine what size of breathing tube to use for Koby, he saw no visible signs of injury or trauma inside Koby's mouth or throat. Dr. Wagner did not note any bruising on Koby's body, and the nurses who were assisting him reported that they saw no bruising. Dr. Wagner observed that Koby's eyes were fixed and nonreactive to light, indicating possible brain damage. He further observed "severe hemorrhaging" in both of Koby's eyes. A CAT scan of Koby's brain revealed "massive bleeding about the right frontal parietal" portion of the head from the forehead to the back of the head. Koby's brain was swollen, especially on the right side, and his brain "was shifting from the right to the left" due to the "[s]welling, blood, and edema." Koby's skull was not fractured.

After examining Koby and getting him on life support, Dr. Wagner talked with Wade. Wade said that he heard Koby in a bedroom, making choking sounds, ran in, put Koby over his arm and delivered three to four blows on his back, and a penny fell out. Wade estimated that Koby choked on the penny for about 15 seconds. Wade did not mention that he had performed the Heimlich maneuver. Based on his education and experience, Dr. Wagner concluded that Koby's injuries were "[a]bsolutely not" consistent with a child who had choked on a penny for 15 seconds. A person who merely choked on a penny would not have blood in the eyes, like Koby, and would not suffer massive brain swelling.

Dr. Wagner believed that Koby's injuries were more consistent with "shaken baby syndrome." The doctor explained in his trial testimony that the syndrome occurs when a young child is "shaken back and forth vigorously over and over." Dr. Wagner believed it significant that when the paramedics arrived at the apartment Koby was breathing, but by the time he arrived at the hospital, he had stopped breathing. The timing and physical symptoms indicated that Koby had been shaken before the paramedics arrived, causing pressure on the base of the brain and leading to swelling in the brain. Such swelling in the brain can cause a child to stop breathing over a period of time from 30 minutes to one hour. The bleeding in Koby's brain was both acute and chronic, meaning that he had been shaken within a 24-hour period before he was seen by Dr. Wagner. The CAT scan showed both fresh "acute" blood (under a week old), and darker "chronic or subacute" blood (older than a week). Dr. Wagner's first thought Koby's injuries were due to shaken baby syndrome based on the retinal bleeding. His belief that Koby was the victim of shaken baby syndrome was "verified" in the doctor's mind "beyond any reasonable doubt" after he reviewed Koby's CAT scan. On cross-examination, Dr. Wagner acknowledged that he did not know how many times a baby would have to be violently shaken in order to cause brain bleeding.

Kevin O'Brien, M.D., a physician at Miller Children's Hospital, transported Koby from Memorial Hospital to Miller with assistance from a nurse and respiratory therapist. Dr. O'Brien reviewed Koby's CAT scan taken at Memorial hospital. Upon arriving at Miller Children's Hospital, he took Koby for a second CAT scan ordered by the hospital's neurosurgeon. Dr. O'Brien determined Koby was in a coma. He was breathing with the assistance of a ventilator. Dr. O'Brien observed blood in Koby's retinas. Wade told Dr. O'Brien that he heard Koby choking, responded, and found him on the ground, choking. Wade picked up Koby, put him over his arm, and "applied back blows." When Koby would not stop choking, Wade "performed abdominal thrusts" at which point a penny came out of Koby's mouth. After the penny came out, Koby had

"twitching" spasms in his right arm. In Dr. O'Brien's opinion, Koby's injuries were not consistent with Wade's story because "back blows" would not normally cause the type of brain bleeding suffered by Koby. Koby had "severe, traumatic brain injury" that was not commonly seen in young choking victims.

At trial, Dr. O'Brien testified that such twitching could indicate a seizure.

Hosam Moustafa, M.D., a pediatric radiologist at Miller Children's Hospital, reviewed the CAT scan taken of Koby after he had arrived at Miller. Dr. Moustafa noted a large subdural hemorrhage in the right cerebral hemisphere, brain edema (bleeding), "midline shift," and areas of brain contusions (bruising). The hemorrhage was "acute," meaning it had happened within two or three days of the CAT scan. The injuries that Dr. Moustafa observed on Koby's CAT scan were "high impact injur[ies]," meaning they could have been caused by shaken baby syndrome or similar trauma such as a car accident.

Robert Clark, M.D., a pediatric ophthalmologist at Miller Children's Hospital, examined Koby's eyes on May 5, 2008. Koby was nonresponsive, so the examination was limited to an evaluation of the structures of the eye. Dr. Clark found "extensive retinal hemorrhages involving all layers of the retina in all four quadrants, meaning top, bottom, left, and right, inside of both eyes." There were 20 to 25 retinal hemorrhages in each eye. The "most likely cause" of the injuries was "a shaken injury," meaning the child was subjected to "a repetitive shaking motion" because a "single blunt trauma" would likely cause only "a few scattered hemorrhages in the very back portion of the eye." Dr. Clark had examined the eyes of "many thousands" of children, including children who had drowned or choked. Only "[v]ery, very rarely did they have any retinal hemorrhages of any kind." Victims of choking or drowning usually showed only "one or two small hemorrhages centered near the back of the eye where the blood vessels enter into the eye." Dr. Clark had "never seen a child have more than six or eight hemorrhages who was not a shaken injury child." Koby's injuries were too severe to have been caused by a fall or other "everyday" type of accident. In the absence of any history that a child had received "aggressive" CPR, e.g., broken ribs or bruising of the chest, retinal bleeding would not occur in "standard" CPR. Dr. Clark had seen drowning victims who had CPR performed for more than an hour, without any resulting retinal hemorrhaging. On cross-examination, Dr. Clark estimated that as few as four, "repetitive" shakes would be "getting up into the . . . range" that could produce the type of trauma that is associated with shaken baby syndrome.

Ramin Javahery, M.D., a pediatric neurosurgeon at Miller Children's Hospital, examined Koby on May 4, 2008, and also reviewed Koby's CAT scans. Koby had a large hemorrhage over the top and right side of the brain that was putting a significant amount of pressure on the brain. The brain was swollen and had been pushed from the right side of the cranial vault towards the left side because of the swelling and hemorrhage. The bright color of the blood on the CAT scan, and the swelling of the brain, indicated an acute injury. In the absence of other indications, Koby could have incurred his brain injuries up to three days earlier. However, Koby's history showed that he was normal the day before, and if the amount of brain swelling had been present three days earlier, he "would have been comatose . . . ." As Dr. Javahery explained: "To have a child who was normal the day before and now was comatose, that edema would have to be acute." Koby's injuries were not consistent with choking and attempts to dislodge a penny by hits to the back because the "presence of a subdural [injury] always requires trauma, direct trauma to the head." Such trauma could be caused by shaking a child so severely that the brain hits the sides of the skull.

Kevin Young, M.D. completed a four-year pathology residency at UCLA in 2007. He performed the autopsy on Koby's body on May 9, 2008. Dr. Young noted bruises on Koby's chest, abdomen, and groin. Upon "reflecting" Koby's scalp, Dr. Young saw three bruises to his head: one over his right brow, one at the top of his head, and one to the back of the head. Overlying the bruise on the top of the head were seven small bruises in a roughly circular pattern, each measuring about one-quarter to one-half inch in diameter. The bruise to the back of the head measured one inch by one-quarter inch; the bruise to the right brow measured one and one-half inches by one inch. The bruises were abnormal for a child of Koby's age. The bruises were inflicted before death. Upon removing and examining the top of Koby's skull, Dr. Young noted a subdural hemorrhage on the right side, weighing about 30 grams. Koby's brain was swollen and soft, which was abnormal. There was blood along the entire length of the spinal cord, which was not normal. Koby's lungs showed acute pneumonia. A person such as Koby who was on a ventilator would have been at a high risk for developing pneumonia.

Dr. Young was unable immediately to determine the cause of Koby's death. After reviewing reports from Dr. Hideo Itabashi and Dr. Narsing Rao, Dr. Young concluded that Koby's death was caused by blunt force injuries to the head. Such injuries in a baby can be caused by shaking. Koby's injuries were not consistent with choking on a penny. And neither blows to the back nor the Heimlich maneuver would cause the contusions present in Koby's head, the subdural hemorrhaging, and the retinal hemorrhaging. Dr. Young ruled out accident as the manner of death, because "accidental bruises to the head tend to be single and just on one surface. [T]hree bruises on three different surfaces of the skull . . . suggests inflicted injuries."

Hideo Itabashi, M.D., graduated from Boston University in 1954 and was a neuropathologist consultant at the Los Angeles County Coroner's Office. He received a sample of Koby's brain on June 10, 2008, and after examining the brain tissue, Dr. Itabashi observed "fragments of thin flakes of recent blood clots loosely attached to the subdural surfaces on the right side" of the dura, a "very tough membrane" that is "tightly applied to the under surface of the skull." The blood clots were "fresh," "subdural hemorrhage." There were no signs of a chronic subdural hematoma or hemorrhage.

Narsing Rao, M.D., director of the eye pathology laboratory at the University of Southern California's Doheny Eye Institute, examined eyes for the coroner's office and had been doing so since 1985. He had examined more than 400 cases from the coroner's office where child abuse was suspected. On March 4, 2009, Dr. Rao received Koby's eyes from the coroner's office. Dr. Rao did not observe any external abnormalities to the eyes. Both eyes were dissected, with tissue placed on slides, and examined under a microscope. The examination revealed internal hemorrhaging within both retinas, "significant blood in the optic nerve" behind the left retina and blood in the back part of the sclera. None of the bleeding that Dr. Rao found was "normal" in a child of Koby's age. Based on his training and experience, Dr. Rao concluded that "the extensive bleeding" in the retinas had been caused by "nonaccidental trauma," specifically "shaken baby syndrome." The injury that had caused the bleeding was less than 72 hours old prior to death. A child who choked on a penny would not have suffered such injuries to his eyes. A child who fell from a bed, crib, or stairs, or been hit over the head with a toy by another child would not suffer the type of injuries observed by Dr. Rao. CPR could cause "mild retinal hemorrhaging," but not the level of retinal bleeding present in Koby's eyes. CPR would not cause the bleeding in the optic nerve or the sclera seen in Koby's case. Multiple blows to the back to try to dislodge an item from his throat would not cause the injuries seen in Koby's case. The Heimlich maneuver would not cause Koby's injuries.

Donald Boger, M.D., a radiology consultant for the coroner's office, examined different sets of X-rays of Koby. In October 2009, Dr. Boger received Koby's CAT scan from Memorial Hospital. Upon reviewing the scan, Dr. Boger noted a "large right subdural hematoma" located on the peripheral part of the brain that was consistent with an acute or recent hemorrhage. He also saw "high density material consistent with clotted blood" in the middle part of the brain between the two lobes. The scan also showed brain swelling of the right hemisphere. There was displacement of the brain consistent with the swelling on the right side of the brain. In February 2010, Dr. Boger reviewed Koby's CAT scan from Memorial Hospital to the CAT scan from Miller Children's Hospital. In comparing the scans, which were taken approximately one and one-half hours apart, Dr. Boger saw changes that suggested "there was an active bleed, increasing blood in the subdural space, and filling of that mixed density, the heterogeneous density, with new blood." Based on what he saw, Dr. Boger became "more firm" in his opinion that what he was viewing was an acute bleed, with no chronic element, meaning the injury on the Memorial Hospital scan appeared to be between zero and six hours old.

C. Analysis

We do not accept Wade's contention that the evidence summarized above is not sufficient to support the jury's conclusion that a reasonable person in his position would have understood that the physical force he imparted on Koby was likely to cause great bodily injury. The evidence at trial, examined in a light favorable to the jury's verdict, established that Koby suffered death-causing injuries from shaken baby syndrome. The evidence showed that shaken baby syndrome involves the vigorous and repetitive shaking of a baby, i.e., a violent, injury-causing modality. The evidence further established that Wade invented a choking story, suggesting that he knew shaking Koby had been wrongful. In addition, Wade made a statement during an initial interview that he had not shaken Koby because, as he explained, he "knew" that shaking a child could "cause brain damage." We conclude that a reasonable trier of fact could have found, as it did, that a reasonable person in Wade's position would understand that the physical force he used on Koby was likely to cause great bodily injury. Wade's argument that Koby may have been injured by being "shaken as little as three or four times" does not persuade us to find the evidence less than sufficient. A reasonable trier of fact could find that a reasonable person in Wade's position would understand that the amount of physical force he used, even if it was only three or four vigorous and repetitive shakes, was likely to cause great bodily injury to an 18-month-old child.

Wade's reliance on People v. Stewart (2000) 77 Cal.App.4th 785 and Wyatt, supra, 48 Cal.4th 776 does not cause us to question our conclusion. Wade is correct the injuries suffered by the child victims in Stewart and Wyatt were significantly more severe than Koby's injuries. But it does not follow, because another person in another situation imparted more physical force on a child, that it was not possible for the jury to find that Wade or any reasonable person in his position would have understood that the amount of force Wade used was likely to cause great bodily injury. The evidence in Wade's case established the use of physical force of such intensity that the jurors rationally could have found that a reasonable person would have understood the force was likely to cause great bodily injury.

II. Probation

Wade contends the trial court abused its discretion in failing to grant probation. We disagree.

The decision to grant or deny probation is a matter of discretion for the trial court. (People v. Bolton (1979) 23 Cal.3d 208, 216.) In determining whether a trial court abused its discretion in denying probation, a reviewing court considers whether substantial evidence supports the trial court's finding that a particular factor for or against probation existed. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1313.) Beyond the historical facts, a reviewing court presumes that a trial court's decision to deny probation was made to achieve legitimate sentencing objectives, and will not reverse the trial court's decision in the absence of a showing that it was arbitrary or irrational. (People v. Giminez (1975) 14 Cal.3d 68, 72.)

Section 1203, subdivision (e), lists the persons who are presumptively ineligible for probation. Wade contends, and the People do not dispute, that he was presumptively eligible for probation because his convictions for involuntary manslaughter under section 192, subdivision (b), and aggravated assault under section 273ab did not qualify him as a probation-ineligible person listed in section 1203, subdivision (e). Accordingly, argues Wade, the trial court was required to apply the criteria in California Rules of Court, rule 4.414 (rule 4.414) in deciding whether to grant probation. Wade agrees the trial court understood that it had discretion to grant probation. And he acknowledges that the court did review materials relevant to the probation issue, including the defense motion for a grant of probation, the prosecution's sentencing memorandum, the probation report, and some 60 letters submitted in Wade's support. Wade also acknowledges the court heard multiple defense witnesses comprised of his friends, relatives and employer testify during trial regarding Wade's nonviolent character. Wade also recognizes that the trial court considered the criteria in rule 4.414. Wade's argument is that the trial court "misapplied the facts to the relevant criteria in reaching its decision" to deny probation. The full text of his argument shows he challenges the sufficiency of the evidence in support of various factors cited by the trial court in denying probation.

The People's first response to Wade's argument is that he "did not object to any of the trial court's stated reasons for rejecting probation." Thus, he has forfeited his attack on the trial court's decision to deny probation. The People's forfeiture argument is well-taken. "[T]he waiver doctrine should apply to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case . . . . [¶] Our reasoning is practical and straightforward. . . . Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention. As in other waiver cases, we hope to reduce the number of errors committed in the first instance and preserve judicial resources otherwise used to correct them. [¶] . . . [¶] . . . [C]laims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner." (People v. Scott (1994) 9 Cal.4th 331, 353-354 (Scott), italics added.)

Responding to the People's forfeiture argument in his reply brief, Wade argues the forfeiture rule articulated in Scott does not apply unless the trial court affords a defendant a meaningful opportunity to object before sentence was imposed. That is, only when the trial court describes the sentence it intends to impose and the reasons for the sentence, and the court considers objections before the actual imposition of sentence. (People v. Gonzalez (2003) 31 Cal.4th 745, 751-752.) Wade claims he had no such opportunity because the trial court in his case heard arguments on probation, but did not signal how it intended to rule, and then issued a ruling and imposed sentence without further consideration of any objections. Wade argues the record "lacks any affirmative indication the trial court was willing to consider objections to its probation factors findings." In the alternative, Wade argues we should consider his probation argument under the rubric of an ineffective assistance of counsel claim.

In our view, the record lacks any affirmative indication that the trial court was not willing to consider objections. On the contrary, the court listened to extensive arguments on probation. However, because Wade raises his argument regarding probation factors under an alternative claim of ineffective assistance of counsel, we find it proper to address his arguments on the merits. (See, e.g., People v. Em (2009) 171 Cal.App.4th 964, 971, fn. 5; People v. Norman (2003) 109 Cal.App.4th 221, 229-230.) The People in their respondent's brief acknowledge the efficacy of this approach.

The trial court found that the nature and circumstances of Wade's offense as compared to other instances of the same crime (rule 4.414(a)(1)) showed that his offense was more serious. Wade argues the evidence does not support this conclusion. We disagree. First, aggravated assault under section 273ab applies when the assaultive conduct is directed to a child under the age of eight years. Here, Wade assaulted an 18-month-old child. Second, Wade challenges the evidence in support of the trial court's findings regarding his inaction in assisting Koby, and the length of his inaction, but his argument is based largely on the evidence showing his statements about how the incident unfolded. The problem with a focus on Wade's story is that substantial evidence showed his story was false. The evidence, viewed in a light favorable to the judgment, shows that Koby did not choke on a penny, meaning that all parts of Wade's story may be rejected, including that he tried to assist Koby. Moreover, the undisputed evidence showed that when Koby's mother returned home, Koby was in a "lifeless" state on the sofa near Wade, and that Wade was making no effort to assist Koby at all. Regardless of whether Wade's inaction was fairly short-lived, as Wade says, or for a longer period, he still failed to act. This inaction element heightens the seriousness of Wade's offense. We do not believe the trial court ruled without a factual foundation in its finding that Wade's aggravated assault on Koby was more serious than an abstract aggravated assault under section 273ab.

In addition, Wade concedes that substantial evidence supports the trial court's findings that Koby was a vulnerable victim (rule 4.414(a)(3)), that he inflicted physical injury (rule 4.414(a)(4)), and that he was an active participant in the crime (rule 4.414(a)(6)). We accept these concessions.

Wade argues the trial court incorrectly found that he inflicted emotional distress on Koby (rule 4.414(a)(4)). The basic thrust of Wade's argument is that Koby did not have time nor the cognitive ability to become emotionally distressed by Wade's assault. In Wade's words: "Koby was only 18 months old and the medical and other evidence suggests that once the injuries were inflicted, Koby became semiconscious very quickly." We reject Wade's argument because we are unwilling to accept Wade's proposition that an infant cannot experience distress during an assault. In other words, the problem that we see in Wade's argument is that it states that, "once the injuries were inflicted, Koby became semiconscious very quickly." (Italics added.) Assuming this is true, it does not follow that Koby did not experience distress "during the infliction of his injuries."

Wade next argues the trial court incorrectly found that he had not expressed any remorse. (Rule 4.414(b)(7).) We are willing to accept Wade's argument that using lack of remorse as a factor under rule 4.414 is problematic where, as in his case, a defendant steadfastly denies guilt and the evidence of guilt is conflicting. (See, e.g., People v. Key (1984) 153 Cal.App.3d 888, 900-901.) Plainly, a defendant who acknowledges guilt but shows no remorse may be expected to engage in further criminal conduct, justifying the use of lack of remorse as a sentencing factor. But this common sense principle does not necessarily apply where a defendant does not acknowledge guilt, or where the evidence of his or her guilt is not so overwhelming that it persuades that any claim of innocence inherently shows a lack of remorse.

Finally, Wade argues the trial court incorrectly found that if he were not imprisoned, it is likely he will be a danger to others. (Rule 4.414(b)(8).) In the trial court's words: "[I]t is quite likely that a circumstance would arise again where Mr. Wade would be in the presence of a young child in a circumstance where he was upset with that child [and he would commit another assault]." We agree with Wade that the court's "danger" finding is not supported by evidence other than the nature of his current crime. The evidence at trial showed that, prior to his current crime, Wade was considered to be trustworthy and non-violent around children. There was no evidence that Wade had ever been involved in any prior criminal activity. For the sentencing hearing, Wade submitted 60 letters attesting to his character for nonviolence. Multiple witnesses testified at trial to Wade's nonviolent character. Wade's case was not, as the trial court suggested, similar to Wyatt, supra, 48 Cal.4th 776. The defendant in Wyatt "body-slammed" a 14-month-old child, repeatedly hit the child, and fell on the child while performing a professional wrestling move ("comin' off the top rope"), all to "toughen up" the child. (Id. at p. 782.) The defendant ignored warnings that he was being too rough; he "[d]idn't want a woman to be tellin' [him] how to raise [his] son." (Id. at p. 783.) In short, the defendant in Wyatt had a propensity for violence evidenced by his belief that it was appropriate to play professional wrestling with an infant. In Wade's case, apart from the crime itself, the evidence consistently showed he did not have violent tendencies around children or any other persons for that matter.

In sum, the lack of remorse factor cited by the trial court is problematic in its application, and the danger to others factor relied on by the trial court is not supported by the evidence. We are not persuaded this requires reversal for a new probation hearing. The mere conclusion that a trial court erroneously relied upon certain factors in making a decision on sentencing does not per se require reversal. Reversal is required only where it is reasonably probable that the trial court would resentence the defendant differently absent the erroneous factors. (See, e.g., People v. Weaver, supra, 149 Cal.App.4th at pp. 1318-1319.) We do not see any such probability. The trial court plainly understood its discretion and weighed several appropriate factors. In the end, it decided to deny probation due to the nature of Wade's crime. We see nothing in the record tending to suggest that the trial court's evaluation would change upon a new examination of the propriety of probation. The trial court's denial of probation plainly rested on the nature of Wade's offense. If the trial court were to reconsider the grant of probation, Wade's crime would remain what it is -- the killing of an 18-month child by shaking him to death. The trial court's decision to deny probation was not an abuse of discretion nor was it irrational.

III. Cruel and/or Unusual Punishment

Wade contends his sentence of 25 years to life amounts to cruel or unusual punishment prohibited under the federal and state Constitutions. We disagree.

At sentencing, Wade did not interpose an objection that the length of his sentence amounted to cruel or unusual punishment under constitutional precepts. The People argue that in the absence of an objection in the trial court, Wade has forfeited any right to argue his cruel or unusual punishment claim in our court. The People do not cite a case in support of the proposition that a cruel or unusual punishment claim is forfeited on appeal absent an objection on that ground in the trial court. Instead, we are referred to an earlier part of the People's respondent's brief which argues that a claim of error associated with a discretionary sentencing choice is forfeited on appeal absent an objection in the trial court. (See Scott, supra, 9 Cal.4th at pp. 353-354.) As we noted, the principle underpinning the Scott forfeiture rule is that if the error had been raised in the trial court regarding the sentencing choice, then the trial court could have exercised the opportunity to address the claimed error. Although this principle may not apply to a cruel or unusual punishment claim, forfeiture nonetheless appears proper here. A defendant's claim that a sentence in a particular case amounts to cruel or unusual punishment raises fact-driven issues on certain elements. For example, it requires a proportionality examination based on punishments for similar offenses in other jurisdictions and punishments within California for other comparably serious crimes. Absent the development of an adequate factual record upon such issues, a reviewing court may be precluded from a proper examination of the constitutional claim. (See, e.g., People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)

To avoid forfeiture, Wade argues his trial counsel provided ineffective assistance of counsel by failing to object in the trial court that his sentence amounted to cruel and/or unusual punishment. The People recognize the efficacy of this approach. Without deciding the forfeiture and ineffective assistance of counsel grounds, we will address the merits of Wade's cruel and/or unusual punishment claim. (People v. Em, supra, 171 Cal.App.4th at p. 971, fn. 5; People v. Norman, supra, 109 Cal.App.4th at pp. 229-230.)

Wade's argument does not persuade us that we must find his sentence amounts to cruel or unusual punishment. First, he concedes that a prescribed term of 25 years to life for the death of a child under the age of eight years does not, on its face, amount to a cruel or unusual punishment under the federal and state Constitutions. Basically, he implicitly concedes that such a punishment is not out of proportion with punishments in other states for similar crimes, nor out of proportion with punishments in California for similarly serious crimes. Instead, Wade argues factors related to him personally, as applied to him and his circumstances, makes the imposition of a term of 25 years to life a cruel or unusual punishment. We do not agree.

"To determine whether a sentence is cruel or unusual as applied to a particular defendant, a reviewing court must examine the circumstances of the offense, including its motive, the extent of the defendant's involvement in the crime, the manner in which the crime was committed, and the consequences of the defendant's acts. The court must also consider the personal characteristics of the defendant, including age, prior criminality, and mental capabilities." (People v. Hines (1997) 15 Cal.4th 997, 1078; see also People v. Dillon (1983) 34 Cal.3d 441 (Dillon).) The length of a particular sentence crosses the line to become a cruel or unusual punishment when it is "'so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.'" (See Dillon, at p. 478, quoting In re Lynch (1972) 8 Cal.3d 410, 424.)

Although the sentence imposed upon Wade may evoke a measure of sympathy, it does not "shock the conscience." Left alone to care for Koby, Wade shook the 18-month-old child so violently that he suffered brain injuries causing death. The crime involved a significant measure of violence on a particularly vulnerable victim. Wade is correct that he had no prior criminal history, and that his ability to cope with a young child may have been compromised by flu-like symptoms on the day he injured Koby, but these factors do not compel a conclusion that his sentence amounts to cruel or unusual punishment. The examination of factors under Dillon does not require that particular weight be given to any single factor, nor does any one particular factor necessarily outweigh any other particular factor. The test in the end is whether, considering all factors, does the sentence "shock the conscience?" Although the sentence imposed is lengthy, we cannot say that Wade's punishment violates the federal and state constitutional prohibitions against cruel or unusual punishment. It does not shock our conscience that a person who killed an 18-month child by violent shaking has been punished by a term of 25 years to life in state prison.


The judgment is affirmed.

BIGELOW, P. J. We concur: