Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA032401. Bob S. Bowers, Judge.
Heather J. Manolakas, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.
VOGEL, P.J.
Dora Lee Clark was convicted of two counts of assault with a deadly weapon, with true findings on allegations that she used a knife in the commission of both assaults. (Pen. Code, §§ 245, subd. (a)(1); 12022, subd. (b)(1).) She was sentenced to state prison for a term of nine years. On Clark’s earlier appeal from that judgment, we modified her sentence, remanded to permit the trial court to reconsider probation, and otherwise affirmed. (People v. Clark (Dec. 21, 2006, B188966) [nonpub. opn.].) On remand, Clark was sentenced to a term of four years. She appeals again, contending the trial court should have granted probation. We disagree and affirm the judgment.
There was a fight involving Clark’s family and the victims’ family, during which Clark used a steak knife to stab two women. At trial, her defense was that she thought the victims were armed and that she was acting to protect her granddaughter.
All section references are to the Penal Code.
BACKGROUND
Clark was charged with two counts of attempted murder (§§ 187, subd. (a), 664) and two counts of assault with a deadly weapon (§ 245, subd. (a)(1)); the attempted murder counts were accompanied by allegations that Clark had inflicted great bodily injury (§ 12022.7, subd. (a)) and used a knife (§ 12022, subd. (b)(1)), and the assault counts were accompanied by allegations that Clark had inflicted great bodily injury (§ 12022.7, subd. (a)).
The verdict forms submitted to the jury were incorrect. They asked for findings whether Clark had used a knife during the commission of the assaults (which was not alleged), but did not ask for findings whether she had inflicted great bodily injury (which was alleged). The jury acquitted Clark of both attempted murder counts, convicted her of the two assaults, and found true the allegation erroneously included on the verdict form (that she had used a knife during the commission of the assaults).
The trial court sentenced Clark to four years (upper term) for one assault plus a consecutive three-year term for a great bodily injury finding that was not made (and had only been alleged with regard to the attempted murder counts), plus a consecutive one-year term for the second assault, plus another consecutive year for the great bodily injury finding that had not been alleged or found true. The trial court rejected the notion of probation based solely on the purported great bodily injury finding.
On the earlier appeal, we struck the great bodily injury and knife use enhancements ancillary to both assault counts and, as modified, affirmed the judgment and remanded the cause to permit the trial court to reconsider probation. (People v. Clark, supra, typed opn. at p. 7.) On remand, the trial court denied probation and sentenced Clark to state prison for three years (midterm) on one assault, plus a consecutive one-year term (one-third midterm) for the other assault.
DISCUSSION
Clark contends the trial court abused its discretion by not granting probation. We disagree.
We summarily reject the Attorney General’s contention that Clark “expressly renounced probation and instead asked the trial court to impose a state prison sentence.” In her brief filed on remand, Clark reminded the trial court that it “retain[ed] the power to grant probation in this matter for the reasons cited in the original Sentencing Memorandum,” and suggested that probation “would seem not only the preferable mode of resolution in this matter, but also . . . the most enlightened.” In the alternative, she argued for a low term sentence on the base count plus one year on the second count, a total of three years (rather than the four-year term imposed). In context, there was no waiver.
The sentencing court has broad discretion to determine whether a defendant is suitable for probation (People v. Carbajal (1995) 10 Cal.4th 1114, 1120), and we will reverse only upon a finding of abused discretion -- that is, where the trial court’s decision is arbitrary or capricious (People v. Edwards (1976) 18 Cal.3d 796, 807). That is not the case here.
On remand, the trial court recited the factors to be considered under rule 4.414(a) of the California Rules of Court and concluded “there would not be a likelihood that [Clark] would succeed upon a grant of probation.” Clark’s argument on appeal -- that her age (55) and the particular facts of the assaults suggest it is unlikely that a similar incident would reoccur -- was considered and rejected by the trial court, which had before it evidence that Clark started the fight and stabbed the two victims. Clark’s other argument -- that the trial court believed Clark obtained a sufficient benefit as a result of the problems with the verdict forms and our earlier modification of her sentence -- is interesting but legally irrelevant. In short, there is nothing patently unfair, arbitrary or capricious with the trial court’s sentencing decision.
DISPOSITION
The judgment is affirmed.
We concur: ROTHSCHILD, J., JACKSON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.