Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050519405
Sepulveda, J.
Defendant Esther Perkins was found guilty by jury trial of felony child abuse. (Pen. Code, § 273a, subd. (a).) Her subsequent motion to reduce the felony to a misdemeanor (§ 17) was denied. Defendant challenges the denial of the motion to reduce, arguing that the trial court abused its discretion. We affirm.
All statutory references are to the Penal Code.
BACKGROUND
According to witnesses who testified at trial, in June 2005 defendant lived in Pittsburg with her three children: a six-year-old boy, a two-year-old girl, and a one-year-old boy. Defendant’s estranged husband (the father of the two younger children), E. Perkins, lived elsewhere.
On the evening of June 1, 2005, Mr. Perkins arrived unannounced to see his children. Defendant and Mr. Perkins began fighting after he accused her of seeing another man. The argument escalated to the point where defendant decided that she should leave and take the children away from the house.
The argument continued, and defendant put the two older children in the cab of her truck, which she started and left running. Defendant returned to the house and continued fighting with Mr. Perkins about whether he could remove items from the house. Mr. Perkins stated that if he could not take his things, he would take the children instead. He then placed the youngest child into the truck with the others. At some point, Mr. Perkins ran back into the house and locked defendant out.
When defendant threw a knife through a window in the front door in order to get inside the house, Mr. Perkins ran out of the house and got into the truck with the defendant’s three children. Defendant’s six-year-old son was sitting next to the passenger window. As Mr. Perkins started to drive away, defendant pulled a large piece of glass from the broken window frame and threw it at the truck. The broken glass flew through the open passenger window and hit the boy in the right cheek, causing a two-inch laceration.
Mr. Perkins drove the children to another location and left them there. The victim was taken by ambulance to the hospital, where treatment for his laceration required two layers of sutures: 11 to 12 on the inside and 20 to 25 on the outside. At the hospital, the victim told a police officer that defendant threw a large piece of glass that flew through the open window of the truck and struck him in the face.
Defendant was arrested at her home later that night. In her statement to police, defendant described how angry she was during the confrontation with Mr. Perkins, claiming that justified her throwing the glass.
Defendant was charged by information with a single count of felony child endangerment. (§ 273a, subd. (a).) The information included an enhancement allegation that defendant personally inflicted great bodily injury. (§ 12022.7, subd. (a).) Following a jury trial, jurors found defendant guilty as charged, but found not true the great bodily injury allegation.
Defendant’s husband was charged as a codefendant. During trial, the trial court granted his motion for acquittal under section 1118.1.
At sentencing, defendant sought a reduction of the conviction to a misdemeanor. (§ 17.) In denying the request, the trial court focused on defendant’s ongoing failure to create a safe home environment for her children, the gravity of the victim’s injury, and defendant’s reluctance to take responsibility for it. The trial court reasoned that defendant stayed on in a “hazardous[,] dangerous relationship,” causing the children “nothing but strife and physical harm and a scar,” and found the offense “too grave” to grant defendant’s request for immediate reduction to a misdemeanor. The court placed defendant on formal probation for four years, on the condition that she spend 90 days in county jail and participate in counseling. The trial court did indicate that defendant could apply for reduction of the offense to a misdemeanor after she “finished her 30 weeks classes and prove[d] she [had] done this.” Restitution fines also were imposed. (§§ 1202.4, subd. (b), 1202.44, 1203.97, subd. (a)(5).) Defendant timely appealed.
DISCUSSION
Defendant argues that the trial court abused its discretion in denying her motion to reduce. Child abuse (§ 273a, subd. (a)) is a “wobbler” offense, punishable in the court’s discretion as a felony or a misdemeanor. A trial court’s authority to reduce a wobbler offense is governed by section 17, subdivision (b).
Section 273a, subdivision (a) 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.”
Section 17, subdivision (b)(3) grants the trial court authority to reduce a wobbler to a misdemeanor following a grant of probation, if “at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.” “[S]ection 17(b), read in conjunction with the relevant charging statute, rests the decision whether to reduce a wobbler solely ‘in the discretion of the court.’ . . . The governing rules are well established: ‘This discretion . . . is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citations.]’ ” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977 (Alvarez).) The trial court’s exercise of this legal discretion must be “ ‘grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.’ ” (Ibid.) Section 17, subdivision (b) specifically leaves the nature of the conviction to be determined at sentencing in the discretion of the judge. (Alvarez, supra, at p. 975.)
Defendant cites section 17, subdivision (b)(1) for the proposition that a wobbler offense may be punished as a felony or a misdemeanor. That subdivision provides that a wobbler offense is a misdemeanor for all purposes “[a]fter a judgment imposing a punishment other than imprisonment in the state prison.” We note that here the trial court suspended the imposition of sentence and granted probation. Therefore, section 17, subdivision (b)(3) guides our analysis. (People v. Griffin (1962) 209 Cal.App.2d 125, 127-128.)
On appeal, two precepts operate. First, the burden is on the party attacking the trial court’s decision to clearly show that the decision was irrational or arbitrary. Absent this showing, the court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination may not be set aside. (Alvarez, supra, 14 Cal.4th at pp. 977-978.) Second, the decision will not be reversed merely because reasonable people might disagree. An appellate court is neither authorized nor warranted in substituting its judgment for that of the trial court. (Ibid.)
Factors to be considered by the trial court in exercising its discretion under section 17, subdivision (b)(3) include the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or traits of character as evidenced by the defendant’s behavior and demeanor at the trial. (Alvarez, supra, 14 Cal.4th at p. 978.) Judges should also consider, where appropriate, the general objectives of sentencing such as those set forth in the California Rules of Court. (Ibid.) Finally, any exercise of the trial court’s authority must be an intensely fact-bound inquiry duly considering all relevant factors, including the defendant’s criminal past and public safety, and the record must so reflect. (Id. at pp. 981-982.)
California Rules of Court, rule 4.410(a) sets forth the general objectives of sentencing, including the following: “(1) Protecting society; [¶] (2) Punishing the defendant; [¶] (3) Encouraging the defendant to lead a law abiding life in the future and deterring him or her from future offenses; [¶] (4) Deterring others from criminal conduct by demonstrating its consequences.” Rule 4.410(b) provides that “the sentencing judge must consider which objectives are of primary importance in the particular case . . . guided by statutory statements of policy, the criteria in these rules, and the facts and circumstances of the case.”
Defendant argues that the trial court failed to focus on the appropriate Alvarez criteria when denying her motion to reduce. (Alvarez, supra, 14 Cal.4th at pp. 977-978.) Defendant directs this court to evidence of what a good mother she is, including letters attesting to her love for her children and her efforts to provide a safe home for them. She contends that completion of training to become a pharmacy technician is evidence of her intent to better provide for her family. A letter from a social worker indicates compliance with the social services case plan instituted as a result of the incident, including counseling, domestic violence treatment, and parenting education classes. To demonstrate her appreciation of the seriousness of the offense, defendant points to evidence that after she learned of her son’s injury, she broke down crying.
Notwithstanding evidence of defendant’s parenting skills and apparent remorse over the outcome of her actions, there is also evidence in the record that she continued to deny personal responsibility for her conduct, claiming to the probation officer after trial that she threw the glass at the truck to stop Mr. Perkins from taking the children. In denying her section 17, subdivision (b) motion, the trial court concluded that defendant was not afraid of what her husband would do with the children, rather she was “really, really mad” at him as a result of their “knock-down, drag-out fight.” The trial court stated that defendant’s “tone” during her taped statement to police after the incident demonstrated that defendant, in the trial court’s words, was “not owning up to it.” Defendant claims that “there is no doubt that” she did not intend to hurt her son. Here, however, a conviction for child abuse requires only that defendant intended to commit the act of throwing the glass, thereby creating a circumstance or condition likely to cause the harm. Specific intent to harm the child is not required. (§ 273a, subd. (a); see People v. Kinkead (2000) 80 Cal.App.4th 1113, 1118, fn. 6 [the term “ ‘willfully’ ” in § 273a does not make it a specific intent crime].) Therefore, a lack of specific intent does not mandate a reduction of the offense to a misdemeanor.
Defendant claims on appeal that the trial court was “overly concerned” about the perception that she had not been trying hard enough to find employment. She argues on appeal, as she did below, that the felony conviction limited her opportunity to work as a pharmacy technician, and that she had tried to get a different type of job. The trial court responded that for over two years defendant had made only a few half-hearted efforts to find a job, using her pending sentencing as an excuse for not seeking and obtaining employment. We are unpersuaded that the trial court abused its discretion in relying on this factor. Moreover, this was only one of several factors the trial court relied on.
The sentencing objectives of the California Rules of Court include protecting society. (Cal. Rules of Court, rule 4.410(a)(1).) Defendant’s argument that society does not need to be protected from “a young mother with three children” ignores the fact that defendant’s own children deserve to be protected from, in the trial court’s words, their mother’s “hazardous[,] dangerous relationship.” At the time of sentencing, Mr. Perkins was again living with defendant, prompting the trial court to express serious concerns about possible future incidents.
In determining whether or not a wobbler offense is a misdemeanor, the trial court must make “a reasoned consideration of defendant’s background and circumstances.” (People v. Dent (1995) 38 Cal.App.4th 1726, 1731.) The burden is on defendant to show that the trial court’s reasoning was irrational or arbitrary. (Alvarez, supra, 14 Cal.4th at pp. 977-978.) The trial court considered defendant’s history of domestic violence, her present circumstances, the probation report indicating relatively recent encounters with law enforcement, and the grave nature of the victim’s injury. A reasoned examination was made of her behavior and attitude at the time of the incident and afterward. The trial court acknowledged defendant’s compliance with the family maintenance services provided through the juvenile dependency action instituted as a result of the incident, but questioned whether she was motivated more by fear of losing her children than by a desire to lead a law-abiding life.
The probation report described defendant’s prior misdemeanor conviction of resisting arrest (§ 148, subd. (a)(1)) arising out of an incident where defendant spit in an officer’s face.
Nothing in the record indicates that the trial court’s decision was anything other than rational and appropriate. Defendant fails to demonstrate an abuse of discretion warranting a reversal.
DISPOSITION
The trial court’s order is affirmed.
We concur: Ruvolo, P.J. Reardon, J.