Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. BA315115, Leslie E. Brown, Judge.
Jennifer Peabody, under appointment by the Court of Appeal, for Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Steven E. Mercer, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
Gustavo Perez was convicted by jury of assault with a deadly weapon and sentenced to state prison for the middle term of three years. He appeals contending "I. There was insufficient evidence to support a finding that appellant assaulted the victim with a deadly weapon. II. The trial court abused its discretion when it refused to grant probation and instead sentenced appellant to three years in state prison." These contentions are without merit and we affirm.
We view the evidence in the light most favorable to the judgment as is required by the familiar rule governing appellate review. (E.g. People v. Gomez (2008) 43 Cal.4th 249, 265.) Appellant, who had been drinking, went into a restaurant owned by the victim. He had a glass bottle in his hand. He tried to buy a hamburger on credit. When the victim and his wife refused to honor this request a verbal argument ensued. Appellant slapped and spat on the victim's wife. When the victim intervened, appellant hit him with the bottle. The victim's wife gave the bottle to the police but it was not booked into evidence.
By way of defense, appellant testified that he did not enter the restaurant with the bottle, did not hit the victim's wife, did not hit the victim with a bottle, and was only defending himself when the victim assaulted him.
Appellant's first contention is without merit. By finding appellant guilty, the jury credited the victim's testimony that appellant struck him with the glass bottle. This testimony is not "inherently improbable" and supports the verdict. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Appellant's second contention is also without merit. Whether or not to grant probation is addressed to the sound discretion of the trial court and we will not disturb such a decision absent an abuse as a matter of law. (E.g. People v. Edwards (1976) 18 Cal.3d 796, 807; People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) Here, appellant had a 20 year plus history of abuse of alcohol and had been given chances in the past to address his alcohol problem. He had not done so and was adamant at the sentencing hearing that he did not have an alcohol problem. We cannot say, as a matter of law, that the decision to deny probation was arbitrary, whimsical, or capricious.
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J.