Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Diego County No. SCD216452, Michael T. Smyth, Judge.
AARON, J.
Phillip Earl Houseknecht III entered a guilty plea to assault causing serious bodily injury, and personally inflicting great bodily injury on the victim. (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a), 1192.7, subd. (c)(8).) The court denied Houseknecht's request for probation and sentenced him to the low term of two years for the assault, plus an additional consecutive three years for personally inflicting great bodily injury, for a total term of five years. The court recommended that the Department of Corrections and Rehabilitation (Department) immediately evaluate Houseknecht for placement in the state hospital system.
Unless otherwise specified, statutory references are to the Penal Code.
Houseknecht filed a notice of appeal on July 30, 2009.
FACTS
Houseknecht lived in a hotel in downtown San Diego. On September 26, 2008, Houseknecht left his room and approached Michelle Herron, who was also a resident of the hotel, with a knife in his hand. Houseknecht turned off the hallway light, knocked Herron to the ground, grabbed her hair and held her by the neck. He then cut Herron across the throat three or four times with the knife. Another hotel resident telephoned the police.
Herron suffered a one to one and a half inch laceration on the left side of her neck. Although she did not suffer a life-threatening injury, her carotid artery was damaged and she required surgery to close her external jugular vein. Herron did not know Houseknecht. Houseknecht denied that he pulled Herron's hair, and said that he thought that she was "nice." He told police that he did not believe he had cut her or hurt her.
Prior to sentencing, a Department evaluator concluded that Houseknecht's symptoms were consistent with a psychosis, most probably schizophrenia. The evaluator believed that Houseknecht's assault on Herron was likely precipitated by a hallucination, and was of the opinion that Houseknecht required a lengthy inpatient treatment regime. The Department concluded that Houseknecht was at high risk for reoffending, and that he posed a danger to anyone who might come into contact with him.
Based on the probation report, the Department's diagnostic report and Houseknecht's psychological evaluation, the court found that the case was not an unusual case in which the interest of justice would be best served by a grant of probation, as set forth in section 1203, subdivision (e)(2) and the California Rules of Court, rule 4.413(b) and (c).
Further rule references are to the California Rules of Court.
DISCUSSION
Houseknecht contends that the trial court abused its discretion when it denied his request for probation. Houseknecht argues that the case was unusual within the meaning of section 1203, subdivision (e)(2) and rule 4.413(b) and (c), and that the interests of justice would be best served by a grant of probation because he had no criminal record and he was young, was amenable to probation, and the crime was committed as a result of his mental health condition, which could be treated as a condition of probation.
Section 1203, subdivision (e)(2) provides, "[e]xcept in unusual cases where the interests of justice would be best served if the person is granted probation, " the court does not have the discretion to grant probation to "any person who used, or attempted to use, a deadly weapon upon a human being" in connection with the crime for which the person has been convicted. The factual circumstances that the court is to apply in evaluating whether the statutory limitation on probation is overcome are set forth in rule 4.413.
The facts showing that the case may be unusual include whether the case is "substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence[, ]" and "[t]he current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense." (Rule 4.413(c)(1)(A) & (B).)
We review a finding that a case may or may not be an unusual one for an abuse of discretion. (People v. Stuart (2007) 156 Cal.App.4th 165, 178; People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) If the trial court determines that the case is unusual, the trial court has broad discretion to determine whether to grant probation. (Du, at pp. 178-179; see rule 4.414.)
There is substantial evidence to support the trial court's finding that this case is not an unusual one that merits a grant of probation. (§ 1203, subd. (e); rule 4.413(c).) The record supports a finding that the offense was not less serious than in other cases of assault with a deadly weapon. (Rule 4.413(c)(1)(A).) Houseknecht attacked Herron, a woman he described as "a nice lady, " for no apparent reason. The assault was random and unprovoked. Houseknecht cut Herron's neck three or four times and sliced her carotid artery. It was simply fortuitous that Houseknecht did not inflict a more serious and life-threatening injury on Herron.
Although the trial court noted that Houseknecht's culpability for the offense was somewhat mitigated because the crime was a result of Houseknecht's mental condition, the diagnostic report stated that Houseknecht required a lengthy inpatient treatment program and that he could not be trusted to follow through with any type of outpatient treatment regime. The psychological evaluation reported that Houseknecht refused medication because he did not believe he needed it. The court could have reasonably concluded that there was not a high likelihood that Houseknecht would respond favorably to any mental health care or treatment that might be required as a condition of probation. (Rule 4.413(c)(2)(B).)
Houseknecht discusses a number of mitigating factors that are set forth in rule 4.414. These factors pertain to the court's broad discretion to grant or deny probation. However, Houseknecht pled guilty to an offense in which he admitted having used a deadly weapon. (§§ 245, subd. (a)(1), 12022.7, subd. (a), 1192.7, subd. (c)(8).) If the trial court finds that the crime was not unusual, as it did here, the trial court does not have the authority to grant probation. We therefore we need not consider Houseknecht's arguments under rule 4.414. (§ 1203, subd. (e)(2).)
The trial court fully considered the relevant mitigating factors in this case, including Houseknecht's age, his lack of any prior criminal record, and his mental health condition, and determined that the low term was appropriate in view of Houseknecht's circumstances.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., HALLER, J.
The court may also determine that a defendant's culpability for the offense is limited because "[t]he defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence, " or "[t]he crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation[, ]" and "[t]he defendant is youthful or aged, and has no significant record of prior criminal offenses." (Rule 4.413(c)(2)(A), (B) & (C).)