Opinion
Sup. Ct. No. F04242
NOT TO BE PUBLISHED
MORRISON, Acting P.J.
Defendant Harry O’Neill attacked two men with a shovel, almost killing one of them. A jury convicted him of two counts of assault with a deadly weapon and sustained two allegations that he caused great bodily injury. (Pen. Code, §§ 245, subd. (a)(1); 12022.7, subd. (a).) The verdicts made defendant presumptively ineligible for probation. (Id., § 1203, subds. (e)(2)[for use of deadly weapon] & (e)(3)[for infliction of great bodily injury].) The trial court imposed the low term of two years, plus three years for the great-bodily injury enhancements as to each victim, but ran the sentences concurrently. On appeal, defendant asserts the trial court should have granted probation. We shall affirm.
STANDARD OF REVIEW
Defendant’s claim that the trial court abused its discretion by not finding this to be an unusual case is based almost entirely on his interpretation of the evidence. However, the trial court, not this court, had the duty in the first instance to weigh the evidence pertaining to probation. (See People v. Southack (1952) 39 Cal.2d 578, 591-592.) Further, it is not enough to show that the trial court could have found this to be an unusual case, or that another trial court might have so found: Defendant must show that the trial court abused its discretion, and we will not reverse unless the trial court’s decision is arbitrary, capricious, or exceeds the bounds of reason. (People v. Warner (1978) 20 Cal.3d 678, 683; People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831 (Du).)
BACKGROUND
A. Facts
Groups of individuals known collectively as the Rainbow Family gather each year around the Fourth of July to pray for world peace. In 2004 they camped in the Modoc National Forest. Many arrived early and set up camps according to their interests, such as a Sweat Lodge Camp and a Hare Krishna Camp. However, another group, not part of the Rainbow Family, set up “A Camp,” meaning “Alcohol Camp;” it was comprised of substance abusers and often belligerent partiers.
Defendant, a 47-year-old retired bricklayer, railed against alcohol and took action by seizing alcohol, pouring it out, and telling drinkers to leave. The victims were two A Camp drinkers.
The victims drove their truck too fast along the dirt road that led to defendant’s camp. Defendant was carrying a shovel when he saw the truck, and he ordered the driver to slow down; the driver stopped the truck, argued with defendant, and allegedly threatened him, before continuing down the road. Defendant said he was “‘going to break the fucking window.’”
The driver slowed his truck some distance away and turned around. When the truck was within range, defendant swung the shovel and smashed its windshield. The driver stopped the truck. The passenger climbed out and raised his hands; defendant struck him in the ribs with the edge of the shovel with such force that the victim’s spleen ruptured, and one of his lungs was punctured: If untreated he would have died. The driver seemed to be looking for something behind a seat. Defendant approached him and struck him on the head with a shovel, knocking him to the ground, and hit him with the shovel two more times, when the driver tried to get up.
B. Sentencing
Defendant asked the trial court to find this was an unusual case because the crime was committed under great provocation, he thought he had to defend himself, and defendant’s age (47), good record, steady employment and community service showed he was suitable for probation. The probation officer’s report acknowledged defendant’s good record, but concluded this was not an unusual case.
The trial court found defendant ineligible for probation. Although defendant appeared sorry that the victims were injured, the court said “I do think that the remorse is somewhat mixed up with what I believe to be Mr. O’Neill’s sincere but unreasonable belief that his actions were—the extent of his actions were justified.” Noting that “the seriousness of the injuries and the seriousness of the offenses that are charged, I think are dealt with in other portions of the sentencing,” the court found that the mitigating factors outweighed the aggravating factors, “primarily from the standpoint that Mr. O’Neill’s got virtually no criminal history. . . . And given his age, that’s quite a few adult years that Mr. O’Neill has been spending without problems with the law.” Therefore, the court imposed the low term of two years for each assault with a deadly weapon, enhanced by three years for inflicting great bodily injury, but the trial court imposed the terms concurrently as to each victim.
DISCUSSION
The presumption of ineligibility for probation can be overcome, among other ways, if the crime was committed “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 “The defendant is youthful or aged, and has no significant record of prior criminal offenses.” (Cal. Rules of Court, rule 4.413(c)(2)(A) & (C).)
The facts, viewed in favor of the trial court’s sentencing decision, shows that defendant instigated an argument, armed himself with a shovel and pursued the victims some distance and repeatedly and violently struck them in a manner calculated to cause great bodily injury. One victim could have died. These facts do not show that defendant acted under great provocation.
Nor was defendant’s insignificant criminal record a good reason to find this was an unusual case: California Rule of Court, rule 4.413(c)(2)(C) applies when a defendant is “youthful or aged”: Defendant is neither. (See People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1226-1227 (Dorsey).)
Much of defendant’s brief merely emphasizes positive facts, or claimed facts, appearing in the record, including letters from his relatives. That information does not show that the trial court acted arbitrarily or irrationally when it concluded this was not an unusual case warranting probation.
Du, supra,5 Cal.App.4th 822, cited by defendant, is inapposite. In Du, the appellate court upheld an order granting probation to a defendant convicted of voluntary manslaughter with a firearm, because the defendant was a shopkeeper who lawfully possessed the firearm, had no record of criminal violence, and acted under circumstances of great provocation. (Id. at pp. 825-829, 833.) The facts here, viewed with deference to the trial court’s decision, do not paint defendant in as favorable a light. Further, the appellate court in that case did not hold that probation was required in that case, only that the trial court did not abuse its discretion. For these reasons, the Du decision does not persuade us that the trial court in this case abused its discretion.
DISPOSITION
The judgment is affirmed.
We concur: ROBIE, J., BUTZ, J.