Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM027876
HULL, J.In this matter, defendant entered a negotiated plea of guilty to one count of corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)) in exchange for dismissal of an earlier case in which he was charged with corporal injury to a cohabitant and injuring a utility line (Pen. Code, § 591). He was thereafter sentenced to state prison for the middle term of three years.
Defendant appeals, contending the trial court abused its discretion in refusing to grant probation. We disagree and affirm the judgment.
FACTS AND PROCEEDINGS
In light of defendant’s guilty plea, we take the facts from the probation report. In addition, because defendant entered a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754), thereby permitting the trial court to consider the facts in any dismissed charges in imposing sentence, we include the facts from defendant’s earlier offense.
At the time of the offenses described below, defendant was married to the victim. They had two daughters, ages four and 10.
On April 25, 2007, defendant and the victim got into an argument at their residence. Defendant pushed the victim onto a couch and slapped her. Their 10-year-old daughter witnessed the foregoing and went to the telephone to call her grandmother. However, defendant took the telephone from her and threw it out of the residence. The daughters fled the home. Defendant grabbed the victim by her hair and pulled her outside, kicking and hitting her. When the victim yelled at defendant to stop, he replied, “What did you say bitch?” As defendant began to drag the victim back toward the residence, a neighbor said something to him and he let the victim go. The victim ran to a neighbor’s house. Defendant followed and pounded on the windows and doors until the police arrived.
As a result of the foregoing, “[t]he victim sustained a small cut near her left eye and lower lip, a cut on her chin, skinned knuckles, scratches and redness on her back, abrasions and redness on her elbows, small cuts on her upper leg, numerous cuts and abrasions on her feet, and redness on her breast.” A felony complaint was filed on May 8, 2007, in case No. CM026842, charging defendant with corporal injury to a cohabitant and injuring a utility line.
On August 26, 2007, defendant again assaulted the victim. As later reported by the victim, defendant “punched her, kicked her, picked her up and slammed her against the ground,” and “threw her all over the residence and continued to throw her on the ground.” The victim could not recall how many times she was struck “but said her whole body was being hit and kicked throughout the assault.”
The children were in the residence at the time and witnessed the assault. One of the children later reported that defendant and the victim had been arguing and defendant started “hitting the victim, throwing her around the residence, pulling her hair, choking her, and slamming her against the ground.” While beating the victim, defendant looked at the daughter and asked, “do you like this?” According to the daughter, “every time the victim would cry the defendant would ask her ‘what are you crying about?’ and punch her in the face again.” The children eventually fled the residence to seek help, and the victim escaped by kicking out a window screen in the bedroom.
According to the police who arrived on the scene, the victim’s body was red and there were “scratches on her wrist, fresh bruises on her arm, scratches on her buttocks, her shorts were torn, and she also sustained scratches on her face.”
Defendant was charged in the present matter with corporal injury to a cohabitant. As noted above, he entered a negotiated plea of guilty to this charge in exchange for dismissal of all charges in case No. CM026842 with a Harvey waiver.
Prior to sentencing, defendant obtained release on bail and commenced Alcoholics Anonymous and family violence treatment programs. At the sentencing hearing, defendant requested a delay in sentencing in order to continue the treatment and to demonstrate to the court that he would comply with probation.
The trial court indicated it had not closed off the possibility of granting probation and asserted it was “willing to give [defendant] a chance to show his true colors for a while in [the family violence] program before sentencing.”
The prosecutor objected to a continuance. He further requested that defendant be remanded to custody, asserting defendant should never have been permitted to obtain release on bail after pleading guilty. The prosecutor also asked that, before the court consider granting a continuance or probation, it listen to two 9-1-1 tapes of calls made by defendant’s daughter in connection with the two incidents. The court agreed to hear the tapes.
The trial court thereafter denied probation and sentenced defendant to the middle term of three years in state prison.
DISCUSSION
Defendant contends the trial court abused its discretion in refusing to grant probation. He argues this was his first felony offense and, according to the probation report, he “had ‘an insignificant criminal record.’” Defendant further argues his prior conviction and the present offenses were related to his alcohol abuse. Defendant asserts he had acknowledged his problems with alcohol and controlling his anger while under the influence of alcohol and had sought out an Alcoholics Anonymous group to address the problem. Defendant also points out that he had enrolled in a family violence education program and had obtained release on bail in order to begin those programs. According to defendant: “By voluntarily enrolling in and attending these classes, [defendant] demonstrated his commitment to addressing the behavior that led him to commit the instant offense.”
Defendant further argues that, in denying probation, the trial court relied solely on factors relating to the crime and failed to give appropriate weight to mitigating factors relating to defendant, “such as [his] minor criminal record, his family support, the pernicious influence of alcohol on his behavior, and his efforts to redress those problems.”
“All defendants are eligible for probation, in the discretion of the sentencing court [citation], unless a statute provides otherwise.” (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) Here, neither party contends a statute precludes probation.
California Rules of Court, rule 4.414 lists criteria affecting the decision to grant or deny probation. It includes the following factors relating to the crime:
“(1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime;
“(2) Whether the defendant was armed with or used a weapon;
“(3) The vulnerability of the victim;
“(4) Whether the defendant inflicted physical or emotional injury;
“(5) The degree of monetary loss to the victim;
“(6) Whether the defendant was an active or a passive participant;
“(7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur;
“(8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant; and
“(9) Whether the defendant took advantage of a position of trust or confidence to commit the crime.” (Cal. Rules of Court, rule 4.414(a).)
It also includes the following facts relating to the defendant:
“(1) Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct;
“(2) Prior performance on probation or parole and present probation or parole status;
“(3) Willingness to comply with the terms of probation;
“(4) Ability to comply with reasonable terms of probation as indicated by the defendant’s age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors;
“(5) The likely effect of imprisonment on the defendant and his or her dependents;
“(6) The adverse collateral consequences on the defendant’s life resulting from the felony conviction;
“(7) Whether the defendant is remorseful; and
“(8) The likelihood that if not imprisoned the defendant will be a danger to others.” (Cal. Rules of Court, rule 4.414(b).)
In denying probation in this matter, the trial court explained: “Standing alone, either the April or August incident, that being the first conduct, the court would have given serious consideration to probation in this case, but it’s the combination of the two events, both of which were very serious within a short proximity of time, one from the other, court feels that the offense is more serious than usual, and a [Penal Code section] 273.5 done in front of a child. Defendant was on probation. [¶] Court does not feel under those circumstances he’s suitable for probation for this felony conviction. Probation will be denied.”
Rather than showing the trial court ignored factors relating to defendant, the foregoing demonstrates the court gave due weight to such matters. Otherwise, there would have been no reason for the court to say it would have given serious consideration to granting probation if there had been only one offense. Furthermore, defense counsel pointed out to the court the factors in defendant’s favor, and we presume the court considered those factors as required. (Evid. Code, § 664; People v. Frye (1994) 21 Cal.App.4th 1483, 1486; People v. Young (1991) 228 Cal.App.3d 171, 186.)
In any event, defendant overstates the factors in his favor. He asserts he signed up for treatment programs and was diligently pursuing those programs. However, it was probably not lost on the trial court that defendant’s attempts to turn his life around came one offense too late. An attempt to obtain treatment after being caught and while awaiting sentencing demonstrates more a desire to avoid prison than to turn one’s life around. In addition, defendant was on probation on a prior offense at the time he committed the present offense.
In reviewing a decision whether to grant probation, “‘it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court’s order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.’” (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.)
The defendant bears a heavy burden when attempting to show an abuse of discretion in denying probation. (People v. Marquez (1983) 143 Cal.App.3d 797, 803.) “In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)
In the present matter, we find no abuse of discretion in denying probation.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, Acting P.J., BUTZ, J.