Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCN213753, Daniel B. Goldstein, Judge.
McINTYRE, J.
Carlos M. Lopez pleaded guilty to corporal injury to a spouse (Pen. Code, § 273.5, subd. (a); all statutory references are to Penal Code) and admitted he personally inflicted great bodily injury (§ 12022.7, subd. (e)), and personally used a deadly weapon (§ 1192.7, subd. (c)(23)). Lopez also pled guilty to misdemeanor cruelty to a child by endangering his/her health (§ 273(a), subd. (b)). The trial court imposed a five-year prison sentence: the low term of two years for the corporal injury count and the low term of three years for the great bodily injury enhancement.
Lopez appeals, contending the court abused its discretion by denying him probation.
FACTS
On the evening of June 24, 2006, Lopez, his wife Jennifer, and their two children were at a friend's house where they planned to spend the night. Lopez and Jennifer had been drinking and socializing with their friends. Between 2:00 and 2:30 a.m., Lopez decided he wanted to spend the night at home and told Jennifer to get the children ready to leave. Lopez and Jennifer argued about this and the argument continued while the family was driving home. At one point as Lopez was yelling at Jennifer, she turned toward the passenger window to ignore him. At a stoplight Lopez hit Jennifer in the face with an open hand as she tried unsuccessfully to get out of the car. Lopez pulled out a folding knife and stabbed Jennifer twice in the upper left arm. The children, who were in the back seat, thought their mother was going to die.
After the stabbing, Lopez drove back to the friend's house for help. The friend telephoned 911. Police arrested Lopez. An ambulance took Jennifer to a hospital and she was later airlifted to a hospital in San Diego for treatment. Jennifer sustained two long lacerations on her upper left arm. A doctor at the hospital estimated the wounds would require between 150 and 200 sutures to close. Jennifer also sustained swelling and bruising to her face and nose, and had dried blood around her mouth.
The children — an eight-year-old boy and a six-year-old girl — were taken into protective custody because the family did not have any relatives living in the area. The children told police and a social worker that in the past Lopez had hit Jennifer a lot and pulled her hair.
At the time of the incident, Lopez and Jennifer had been married one month shy of 10 years. Lopez, who had been a Marine for 12 years, was a staff sergeant (E6). After serving two tours in Iraq, Lopez was assigned as a drill instructor at the Marine Corps Recruit Depot.
Jennifer and Lopez said there had been no previous domestic violence incidents other than mutual pushing and shoving between them. Jennifer told a social worker that for the past six years she and Lopez had been verbally abusive to each other and that about one and one-half years ago the pushing and shoving began. Jennifer linked the escalation of their arguments to the stress Lopez experienced as a Marine who saw combat. Lopez said his duties as a drill instructor put a strain on his relationship with Jennifer.
On August 28, 2006, Lopez pleaded guilty to one count of corporal injury to a spouse, admitted he inflicted great bodily injury and personally used a deadly weapon. Lopez also pleaded guilty to a misdemeanor child endangerment count, and the balance of the information was dismissed.
Lopez's counsel filed a sentencing memorandum in which he argued that the court should dismiss the great bodily injury allegation. Counsel included, among other things, documentation that during Lopez's military career he received many honors, including a meritorious mast for duties performed, two Navy Meritorious Unit Commendations, and several Letters of Appreciation that were made part of his personnel file. Counsel also offered a letter from Jennifer's therapist, psychologist Claudia Goedde, opining that Lopez might have developed Post Traumatic Stress Disorder (PTSD) from his military experiences. Goedde, who said she had extensive experience treating trauma victims, observed:
"It is not uncommon for individuals with this condition to act out violently and to develop alcohol problems. It is also not uncommon to have a so called 'black-out' where the individual with PTSD becomes triggered and finds himself acting as if in combat again. Following such an episode, these individuals are often very remorseful and confused about how such an incident could have happened."
The probation department recommended Lopez be granted formal probation. The probation officer who wrote the report noted:
"Based on the nature of the offense, Mr. Lopez is presumptively ineligible for a grant of probation. While the undersigned strongly considered a recommendation for a prison sentence based on the serious nature of the charges, it ultimately appears that Mr. Lopez is quite suitable for a grant of probation. The defendant has no prior record of criminal conduct, and no apparent history of violence. The victim, while staunchly against a reconciliation with the defendant, is adamant the he deserves a chance at probation and the opportunity to better himself through appropriate counseling and treatment. It is obvious that Mr. Lopez is remorseful for his actions, and this officer believes he is sincere in his desire to prove to all concerned that this was, indeed, an isolated incident."
At the December 5 sentencing hearing, Lopez's counsel urged the court to grant Lopez probation, characterizing the case as extraordinary and noting Lopez's actions were consistent with PTSD caused by combat-related stress. The prosecutor called the case "extremely serious" and asked the court to impose the maximum sentence.
The trial court found Lopez was statutorily ineligible for probation, and this was not an unusual case where the interests of justice would best be served by a grant of probation. (§ 1203, subd. (e)(2).) The court rejected the notion that Lopez's actions were a result of PTSD. The court also noted that the assault was unprovoked and it was not the first time the couple engaged in domestic violence. The court selected the lower term of two years for the corporal injury to a spouse count and the lower term of three years for the great bodily injury enhancement, citing Lopez's honorable military service, his lack of a criminal record and his guilty plea at an early stage of the proceedings, which eliminated the need for the children to testify at trial.
DISCUSSION
Lopez contends the court abused its discretion by denying him probation; specifically, he claims that the court arbitrarily disregarded substantial evidence that the attack on Jennifer was the result of PTSD. The contention is without merit.
"Probation is an act of leniency, not a matter of right." (People v. Walmsley (1985) 168 Cal.App.3d 636, 638, disagreed with on other grounds in People v. Lafantasie (1986) 178 Cal.App.3d 758, 764.) The decision to grant or deny probation requires consideration of all the facts and circumstances of the case. (People v. Axtell (1981) 118 Cal.App.3d 246, 256.) Among the factors to be considered is whether the failure to incarcerate the defendant "would unduly depreciate the seriousness of the crime." (Id. at p. 255; see also, People v. Bolton (1979) 23 Cal.3d 208, 217.) The sentencing court has broad discretion to determine whether a defendant meets the statutory requirements for probation. (People v. Warner (1978) 20 Cal.3d 678, 683.) We review the court's denial of probation for abuse of discretion. (People v. Downey (2000) 82 Cal.App.4th 899, 909.) Under this standard, "[i]n the absence of a clear showing that [the] sentence choice was arbitrary or irrational, we must presume the sentencing court acted properly." (People v. Hubbell (1980) 108 Cal.App.3d 253, 260.) A decision that is "arbitrary or capricious" or "exceeds the bounds of reason," constitutes an abuse of discretion. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) The party challenging the sentence has the burden of showing an abuse of discretion. (Ibid.)
The trial court must first determine whether the defendant is eligible for probation. Because Lopez used a deadly weapon in connection with the assault, he was presumptively ineligible for probation. (§ 1203, subd. (e)(2).) This means that Lopez could be granted probation only if the court found it an "unusual case where the interests of justice would best be served" by granting Lopez probation. (§ 1203, subd. (e).) The court found that this was not such an unusual case. A trial court's finding on whether a case is unusual within the meaning of section 1203, subdivision (e) is reviewed for abuse of discretion — the same standard of review applied to the grant or denial of probation. (People v. Superior Court (Du), supra, 5 Cal.App.4th at p. 831.)
The basic premise underlying Lopez's appellate argument is that the court arbitrarily ignored substantial evidence that he was suffering from PTSD caused by his military experiences. This argument fails because there was no substantial evidence that Lopez suffered from PTSD; what was presented to the trial court was mere speculation. Speculation is not substantial evidence. (Pinell v. Superior Court (1965) 232 Cal.App.2d 284, 288 [conjecture and surmise are not valid substitutes for competent evidence].)
Psychologist Goedde was not Lopez's therapist; she was Jennifer's therapist. There was no showing that Goedde ever interviewed Lopez or even met him. "Evidence is substantial only if it ' "reasonably inspires confidence and is of 'solid value.' " (People v. Cluff (2001) 87 Cal.App.4th 991, 1002.) "By definition, 'substantial evidence' requires evidence and not mere speculation. In any given case, one 'may speculate about any number of scenarios that may have occured. . . . A reasonable inference, however, 'may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work" ' (Ibid.)
Lopez did not establish by competent evidence that he attacked Jennifer because he was suffering from PTSD. Accordingly, the court did not abuse its discretion by not finding this was an unusual case that rebutted his presumptive ineligibility for probation.
We also find the court properly exercised its discretion by denying probation. The court carefully considered and then rejected the factors Lopez argued should have led to a grant of probation. The court's decision was neither capricious, arbitrary or unreasonable. In light of the record as a whole, we cannot say the trial court abused its discretion by not granting probation. (People v. Lesnick (1987) 189 Cal.App.3d 637, 644.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., O'ROURKE, J.