Opinion
B160375.
7-23-2003
THE PEOPLE, Plaintiff and Respondent, v. ANDRES S. GARCIA, Defendant and Appellant.
Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Marc E. Turchin and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
We reject defendants claim that the trial court should have granted him probation.
BACKGROUND
Defendants girl friend (Rodriguez) has a young child by a former boyfriend (Solano). Solano had once been placed on misdemeanor probation for beating Rodriguez. Solano and Rodriguez brother had once teamed up in a fight against defendant.
Solano would routinely pick up the child for weekend visits. In February of 2002, Solano went to the Rodriguez home to return the child after a regular visit. An existing court order restrained Solano from bothering Rodriguez. Anticipating problems, Solano brought a friend with him. Solano parked in front of Rodriguez house and honked. Defendant came out, demanding the child. Solano refused. Rodriguez father came out and took the child. At this point, defendant was in front of the house and Solano was in the street. Defendant approached, holding a brick and uttering provocative comments. He threw the brick at Solanos car.
Defendant ran back into the house, yelling that he was about to be attacked. Solano and his friend got in the car and started to leave. Defendant returned with a baseball bat. Solano got out of the car and confronted defendant with a clenched fist. Defendant clubbed Solano in the forearm, the head, and twice in the ribs, opening a sizable gash in Solanos head and knocking him unconscious. Solano required numerous stitches to his head.
A jury found defendant guilty of felony assault and vandalism and sustained a great bodily injury enhancement. The trial court sentenced defendant to five years in prison.
DISCUSSION
Defendant claims the trial court abused its discretion in refusing to grant him probation. Defendant had no prior criminal record. Former supervisors submitted letters to the court showing that defendant "was employed and well respected at his job with Lenscrafters." A "family man," he provided Rodriguez and her children with financial and emotional support. The probation report recommended probation. Solano testified at the sentencing hearing and recommended probation. Solano pointed out that he had made his own mistakes and been given a second chance. He thought defendant deserved the same. Defense counsel pointed out that Solano had contributed some provocation to the incident.
A defendant who uses a weapon or inflicts great bodily injury is not eligible for probation "except in unusual cases where the interests of justice would best be served . . . ." (Pen. Code, § 1203, subd. (e).) Rule 4.413 of the California Rules of Court contains the criteria to be considered in resolving the issue. "The standard for reviewing a trial courts finding that a case may or may not be unusual is abuse of discretion. [Citations.] The standard is the same for review of an order granting [or denying] probation." (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)
"Our function [on appeal] is to determine whether the [trial] courts order is arbitrary or capricious, or exceeds the bounds of reason, all of the circumstances being considered. [Citation.] The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.]" (Ibid, internal quotation marks omitted.)
Defendant has failed to carry his burden. There was nothing arbitrary, capricious, or irrational about the trial courts decision. It listened to everything offered by both sides and specifically analyzed the situation under the factors listed in California Rules of Court, rule 4.413. It ultimately concluded that taking a baseball bat to someones head was vile enough to warrant prison.
We are not here to relitigate the merits of defendants probation arguments. We are here to review the trial courts resolution of those factors and to determine whether the trial court abused its discretion. We find no abuse of discretion in a five-year prison sentence for bludgeoning someone at least four times with a baseball bat, including splitting the head and rendering the victim unconscious.
DISPOSITION
The judgment is affirmed.
We concur: SPENCER, P.J., VOGEL (Miriam A.), J.