P. v. Dishmon CA4/1

Filed 7/10/13 P. v. Dishmon 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D062205

Plaintiff and Respondent,

v. (Super. Ct. No. SCD234692)

CLIFFORD DISHMON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Charles R.

Gill, Judge. Affirmed.

Carl M. Hancock for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, William M. Wood and Ifeolu E.

Hassan, Deputy Attorneys General, for Plaintiff and Respondent.

Clifford Dishmon pled guilty to felony child abuse and admitted to inflicting great

bodily injury on a child under the age of five. At the time of the plea, the court indicated

it would place a seven-year "lid" on Dishmon's sentence. However, after considering
Dishmon's remarks at the sentencing hearing, the court withdrew the indicated sentence

and stated it intended to impose a nine-year term. The court gave Dishmon the

opportunity to withdraw his guilty plea based on the new intended sentence. Dishmon

declined to withdraw his plea. The court then imposed the nine-year sentence.

On appeal, Dishmon contends the trial court abused its discretion in sentencing

him to nine years because it was greater than the initial seven-year-maximum indicated

sentence. We reject this contention and affirm.

FACTUAL AND PROCEDURAL BACKGROUND1

Dishmon punched his five-month-old son, causing a tear in his liver and rendering

him unconscious. Dishmon then forcefully shook the infant. About one hour later,

Dishmon called 911. The child was diagnosed with a subdural hematoma, bilateral

retinal hemorrhages in his eyes, and a lacerated liver. Dishmon initially told police that

his son had fallen from a changing table, but later admitted punching and shaking the

baby.

Dishmon was charged with felony child abuse and a sentence enhancement for

inflicting great bodily injury on a child under the age of five. Dishmon pled guilty to the

charge and admitted the alleged enhancement. Dishmon signed the plea form which

stated there were "no deals" from the prosecutor but that the court had indicated a seven-

year "Lid" on the sentence. The plea form also stated Dishmon "understand[s] that I may

receive" a "12 years imprisonment" for the offense. At the hearing, the court repeated the

1 Our description of the offense is based on information in the probation report.
(See People v. Breslin (2012) 205 Cal.App.4th 1409, 1412.)
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seven-year-lid indicated sentence, but Dishmon also verbally acknowledged the

maximum sentence could be 12 years.

After the plea, Dishmon underwent a psychological evaluation by psychologist Dr.

Erin Ferma. Dr. Ferma concluded that Dishmon did not present "violent or aggressive

tendencies" and did not meet the criteria for an antisocial personality disorder. She also

opined that Dishmon appeared "genuinely remorseful" for the injuries he had inflicted on

his son.

In a mitigation statement, defense counsel requested the court to impose probation

or a two-year total sentence. In support, defense counsel stated that Dishmon feels

remorseful and takes full responsibility for his actions, and that the incident occurred

because Dishmon was "feeling overwhelmed and frustrated" while serving as his son's

caregiver.

The probation officer recommended a nine-year term, consisting of the midterm

for the child abuse count and the midterm for the great bodily injury enhancement.

At the outset of the sentencing hearing, the court said it had reviewed the entire

court file, including the change of plea form, the probation report, the defense mitigation

statement, Dr. Ferma's psychological evaluation, letters supporting Dishmon, and a

victim impact statement from the injured child's mother. Based on its review of these

materials, the court stated it was inclined to sentence Dishmon to a six-year term, but

would consider counsels' arguments regarding the appropriate sentence.

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 In his argument, the prosecutor strongly objected to a six-year term. Emphasizing

the seriousness of the offense against a "defenseless" infant, the prosecutor asked the

court to follow the probation officer's recommended nine-year sentence.

The infant's mother (Mother) then spoke about her son's recovery and the

emotional impact of the crime. She asked, "What kind of a man punches a five-month-

old baby, nonetheless [his] own son . . . [and then] waits an hour to call for help while

that baby is blacked out?" Dishmon interrupted, declaring the infant was "not [his] son."

Amid requests from the court that he remain silent, Dishmon interjected two more times,

stating the infant was not his son and adding that Mother was not his wife. When she

was allowed to continue, Mother discussed her continuing fear of Dishmon and concern

for the safety of her child and asked the court to require Dishmon to remain financially

responsible for the child. Mother additionally emphasized the severity of the baby's

injuries and her inability to comprehend Dishmon's actions, asking "How could a man

behave like a wild animal?" Mother also questioned what she should tell her son when

he started asking questions about his dad.

After Mother's statement, the prosecutor requested the court to reconsider its

indicated sentence. The prosecutor said he was "extremely concerned based upon the

defendant's outburst[s]" that Dishmon "feels no particular remorse over what he did and

that there may be some physical danger with regard to either [the child or Mother]." The

prosecutor said "[t]hose are the types of comments that are danger signs. And we have to

sentence based upon the information we have available today."

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 In his argument, defense counsel urged the court to impose probation or the low

term. Defense counsel asserted that Dishmon's comments at the hearing reflected merely

his "frustration" arising from his difficult relationship with Mother, and did not show that

Dishmon intended to cause any additional harm to Mother or to his son. Defense counsel

also focused on Dishmon's lack of prior criminality, the isolated nature of the offense, his

acceptance of responsibility, and his remorse. Defense counsel concluded by noting that

Dishmon had expressed a desire to address the court, but counsel had "advised him that it

was not necessary" and "it might be best for him if he just allows the Court to make its

decision based on what we've heard so far."

After the court admonished "that any similar outbursts . . . would not be in

[Dishmon's] best interests," Dishmon chose to speak. The following colloquy then

occurred:

"THE DEFENDANT: I've been locked up for almost a year. And
before, prior to this to me it's very upsetting that [Mother] would sit
down, pretend like I didn't do anything. I pay rent, I pay rent. When
she didn't have money coming in, I paid for everything. When the
child was born, the father, the brother, they treated me like dirt for
no reason. I had a verbal disagreement with him on Facebook even.
I found messages from her on Facebook because she has a habit of
leaving the computer open, where I found a lengthy message with
her and her friend who have their own issues in her relationship,
talking negative about me. And the person doesn't even know me.

"THE COURT: Mr. Dishmon, the issue presented to me today is the
injury to [the child].

"DEFENDANT: That's fine. I looked at it like this: I'm going to
prison. I can do the time. You want to give me 12 [years], that's
fine, I will do it.

"THE COURT: Mr. Dishmon, I'm going to suggest—

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 "DEFENDANT: I have no intention [of] even looking for her. It is
not my son. She is not my wife. I don't believe it's my son. Every
time I held him, he didn't feel like my son.

"THE COURT: I suggest you don't say anything else.

"DEFENDANT: He is not my son.

"THE COURT: I advise you not to speak anymore.

"DEFENDANT: I have no intention of looking for her forever. I
don't care what she does or who she goes with. It's done I don't care.

"THE COURT: Mr. Dishmon, I have heard enough. Stop talking.

"DEFENDANT: The feeling is mutual.

"THE COURT: Stop talking.

"DEFENDANT: Her statement does not move me at all.

"THE COURT: Mr. Dishmon, if you continue to talk, I will have
you removed from the courtroom. Do you understand that?

"THE DEFENDANT: That's fine. The feeling is mutual.

"THE COURT: Anything else, [defense counsel]?

"THE DEFENDANT: Fucking liars."

After further argument by counsel and a brief recess, the court informed the parties

that it had decided to modify its indicated sentence, explaining: "I placed a lid of seven

years on [Dishmon's] plea of guilty in his case and feel, based on [Dishmon's] outbursts

and his apparent lack of remorse, as well as his lack of understanding of the seriousness

of the charge to which he pled guilty, that I can no longer honor the seven-year lid I

gave." The trial court then continued the sentencing hearing.

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 At the continued hearing held several months later, the court stated it now

intended to follow the probation officer's recommendation of a nine-year sentence. The

court gave Dishmon the opportunity to withdraw his plea and return the case to the

pretrial stage, but Dishmon declined. Both counsel then submitted the matter. After

stating it had reread all the relevant information in the file and considered counsels' prior

arguments, the court found the mitigating factors balanced the aggravating factors and

imposed a nine-year term, consisting of middle terms for the offense and the

enhancement.

DISCUSSION

Dishmon contends the trial court erred because it refused to adhere to the indicated

seven-year-maximum sentence.

I. Applicable Legal Principles

The California Supreme Court recently reaffirmed the long-established rule that an

indicated sentence is not a promise of any particular sentencing result. (People v.

Clancey (2013) 56 Cal.4th 562, 576-577 (Clancey).) In an indicated sentence, a

defendant admits all charges and the trial court informs the defendant " ' "what sentence

[it] will impose if a given set of facts is confirmed . . . ." [Citation.]' [Citation.]" (Id. at

p. 570, italics added; People v. Allan (1996) 49 Cal.App.4th 1507, 1516.) Thus, if the

factual predicate underlying the indicated sentence is disproved, the court may withdraw

the indicated sentence. (Clancey, supra, 56 Cal.4th at p. 576; People v. Superior Court

(Ramos) (1991) 235 Cal.App.3d 1261, 1271.)

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 Additionally, a trial court retains broad discretion to modify an intended sentence

even if the factual predicate is not disproved. (Clancey, supra, 56 Cal.4th at pp. 576-

577.) For example, the court may depart from an indicated sentence based on additional

new information or based on a reexamination of the relevant circumstances. (Id. at p.

576.) "The development of new information at sentencing may persuade the trial court

that the sentence previously indicated is no longer appropriate for this defendant or these

offenses. Or, after considering the available information more carefully, the trial court

may likewise conclude that the indicated sentence is not appropriate." (Ibid.)

Thus, after providing an indicated sentence, the trial court retains its full discretion

at the sentencing hearing to select a fair and just punishment. (Clancey, supra, 56

Cal.4th. 562.) "[A]n indicated sentence is not a promise that a particular sentence will

ultimately be imposed at sentencing. Nor does it divest a trial court of its ability to

exercise its discretion at the sentencing hearing, whether based on the evidence and

argument presented by the parties or on a more careful and refined judgment as to the

appropriate sentence. . . . [T]he utility of the indicated-sentence procedure . . . depends to

a great extent on whether the record then before the court contains the information about

the defendant and the defendant's offenses that is relevant to sentencing." (Clancey,

supra, at p. 576; accord, People v. Delgado (1993) 16 Cal.App.4th 551, 555.)

Mindful of the court's broad discretion in modifying an intended sentence, we

consider Dishmon's arguments that the court abused its discretion in this case.

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 II. Analysis

The trial court stated it modified its indicated sentence based on new information

showing Dishmon was not remorseful and had not appreciated the seriousness of his

offense. These are appropriate factors to consider in sentencing and the record fully

supports the court's factual conclusions.

At the hearing, Dishmon expressed extreme anger at Mother, called Mother and

the prosecutor "[f]ucking liars," stated he does not care and was not "move[d]" by

Mother's emotional statements about the infant's injuries, and indicated a complete

disregard for the baby's welfare. These comments can be reasonably understood as

reflecting an absence of remorse and a refusal to take responsibility for his actions.

Likewise, repeatedly interrupting the court and refusing to follow the court's directions

illustrates Dishmon's disrespect for the proceedings and supports that Dishmon lacked

appreciation for the seriousness of his conduct.

The court reasonably relied on Dishmon's outbursts and conduct as the basis to

modify the indicated sentence. At the outset of the hearing, the court stated it was basing

its indicated sentence on the materials reviewed, which included the opinions of the

psychiatrist and defense counsel that Dishmon felt remorse for the crime and that he

understood the seriousness of his offense. After considering Dishmon's remarks, the

court had a reasonable basis to disagree with these opinions and conclude that Dishmon

felt no remorse for his crime and did not appreciate the serious nature of his actions. As

the California Supreme Court has noted, "the presence or absence of remorse may be

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considered as relevant to the evaluation of mitigating evidence and to the penalty

determination." (People v. Davis (2009) 46 Cal.4th 539, 620.)

Dishmon does not argue that the court could not use the absence of remorse or the

lack of understanding of the seriousness of the offense as grounds to change the indicated

sentence. Instead, he challenges the court's factual inferences and conclusions. He

contends the trial court misconstrued his outbursts and that he was merely attempting to

respond to Mother's claims that he was a " 'wild animal' " who did not financially support

the family and had resorted to " 'violent actions' to 'escape his responsibilities.' "

However, even assuming the court could have reached a factual conclusion that

Dishmon's statements constituted only an attempt to rebut false accusations against him,

the court was not required to do so. Where, as here, the court's factual conclusions are

reasonable and based on the record before it, we credit those conclusions, even if other

factual inferences are possible. The experienced trial judge was in the best position to

evaluate the meaning of Dishmon's statements, including by considering his words, the

tone of his remarks, and his facial expressions and body language. Based on a totality of

the circumstances, the court interpreted Dishmon's statements as reflecting a lack of

remorse and a lack of concern for his criminal conduct and concluded that its prior

assumptions about Dishmon were false. The court's conclusions were reasonable.

Dishmon's suggestion that People v. Delgado, supra, 16 Cal.App.4th 551 supports

his arguments is without merit. In Delgado, the trial court withdrew the original

indicated sentence because of an objectively demonstrable change in facts (the court's

learning of two prior prison terms). (Id. at p. 553.) The reviewing court rejected the

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defendant's arguments that the court erred, emphasizing that an "indicated sentence is just

that: an indication. Until sentence is actually imposed, no guarantee is being made." (Id.

at p. 555.)

This case is indistinguishable. As in Delgado, the court withdrew the original

indicated sentence because of information showing the relevant facts were different than

the court had previously believed. The fact that the new information was based on the

defendant's statements rather than on a documented prison sentence is a distinction

without a material difference. In this case, as in Delgado, the trial court properly

exercised its discretion when it modified the indicated sentence because it found the

factual predicate underlying the seven-year lid to be false.

Finally, any error was waived because the trial court properly provided Dishmon

the opportunity to withdraw his plea when the court modified its indicated sentence.

Dishmon declined to do so, knowing of the new indicated nine-year sentence and

understanding he was facing a maximum 12-year sentence. We reject Dishmon's

argument that the specific performance remedy is available under these circumstances.

As noted in Delgado, "Even if the first indicated offer was a guaranteed sentence, which

it was not, '[t]he goal in providing a remedy for breach of the bargain is to redress the

harm caused by the violation without . . . curtailing the normal sentencing discretion of

the trial judge. . . .' . . . To order the court to specifically perform . . . would

[improperly] 'curtail[] the normal sentencing discretion of the trial judge.' " (People v.

Delgado, supra, 16 Cal.App.4th at p. 555.)

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 DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

NARES, Acting P. J.

AARON, J.

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