Opinion
NOT TO BE PUBLISHED
Sup.Ct.No. S0CRF0163
MORRISON, J.
During an exchange of custody of their son, defendant Angela Spencer got into an argument with her ex-husband and stabbed him several times. She pled no contest to willful infliction of corporal injury on a former spouse (Pen. Code, § 273.5, subd. (a)), admitting enhancements for personal use of a deadly weapon (Pen. Code, § 12022, subd. (b)(1)) and great bodily injury (Pen. Code, § 12022.7, subd. (e)), and to child endangerment (Pen. Code, § 273a, subd. (a)) with a personal use enhancement. After a diagnostic evaluation pursuant to Penal Code section 1203.03, the trial court denied probation and sentenced defendant to eight years four months in prison: the midterm of three years on the corporal injury count, with four years for the great bodily injury enhancement, and a consecutive term of one-third the midterm or one year four months on the child endangerment. The court struck the personal use enhancement.
On appeal defendant raises three sentencing errors. She contends the trial court abused its discretion in denying probation; the trial court erred in imposing consecutive sentences; and the imposition of consecutive sentences based on facts not found by a jury violated Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856]. We find no error and affirm.
FACTUAL BACKGROUND
Defendant met her ex-husband in a public parking lot to exchange custody of their 10-year-old son. When the ex-husband, Richard Spencer, refused to sign documentation regarding a change in visitation, defendant became enraged and began striking him. Richard attempted to protect his son, picking him up and turning his back on defendant. Defendant took a knife from her pocket and stabbed Richard several times.
Defendant was charged with assault with a deadly weapon, intentional infliction of corporal injury on a former spouse, and child endangerment. Personal use of a deadly weapon and great bodily injury enhancements were alleged.
Pursuant to a plea agreement, defendant pled no contest to the corporal injury and child endangerment counts, and admitted the enhancements. The assault charge was dismissed. As part of the plea agreement, it was stipulated the child endangerment count could never be used as a strike. Defendant explicitly waived her right to a jury or court trial on any sentencing factors.
The trial court directed defendant be sent to the Department of Corrections and Rehabilitation for a diagnostic evaluation pursuant to Penal Code section 1203.03.
The evaluation recommended that defendant be sentenced to state prison. It reported that defendant, who was a diabetic, had been witnessed not taking the extra food given to diabetics and the attending nurse and staff believed she might be manipulating her blood sugar levels. The evaluation noted defendant did not express remorse or anger at herself for subjecting her son to the attack. It concluded defendant would be an unsuccessful candidate for probation and a danger if released due to her anger at her ex-husband, her callous disregard for the well-being of her son, and the possibility that by having a knife in her pocket she subconsciously engineered a deliberate attack. Defendant needed a well-supervised, strongly structured environment, such as prison.
The probation report recommended denial of probation and a midterm sentence. The probation report noted the supervising psychologist at the prison found defendant to be manipulative and angry. “‘The manner in which Ms. Spencer is able to excuse herself for her actions, coupled with such strong negative feelings for the victim places her at high risk to re-offend. Given the ferocity of her attack, Ms. Spencer poses a threat to society until she is able to deal effectively with her anger and minimize her manipulative behavior.’”
In support of her application for probation, defendant submitted an evaluation from her treating psychiatrist, Dr. Regina Bahten. Defendant presented herself as depressed and anxious over custody issues with her ex-husband. She had been seen by another psychiatrist at the clinic a few days before the incident. At that time she was diagnosed with major depression with anxiety and some borderline personality traits. Treatment was continuation of psychotropic medications and psychotherapy. One year later she was diagnosed with bipolar disorder. In an addendum to her evaluation, Dr. Bahten offered several explanations for defendant’s violent outburst: her blood sugar level was difficult to control, her medications have been associated with agitated behavior in bipolar patients, and traumatized patients overreact in threatening situations.
At the sentencing hearing Dr. Bahten criticized the section 1203.03 evaluation, particularly the lack of medical reports to substantiate the claim of defendant’s manipulation of her blood sugar levels. She testified defendant was an excellent candidate for treatment because she self-presented before the out-of-control behavior. The doctor believed defendant’s impulse control could be handled psychiatrically with great success.
Several of defendant’s friends and family members wrote letters or testified on her behalf, stressing she was not a violent person. Richard Spencer and his wife testified to the horrific effect the attack had had on them and the son. Defendant testified she was sorry, but she was not in her right mind that day.
The defense submitted a statement in mitigation arguing for probation. Defendant, however, did not ask to be sent home, explaining: “I lost that right the minute I lost my mind that day.”
The trial court found “the most horrific thing about this” was what defendant had done to her son; the emotional consequence to him was unforgivable. The court did not doubt defendant knew she had a knife and found the crime impulsive but intentional.
The court denied probation, finding the factors against probation outweighed those in favor. The court detailed each factor against probation it found: it was not an unusual case so probation was statutorily prohibited; the nature, seriousness and circumstances of the offenses were significant compared to other instances of the same crime; defendant used a weapon; the victim was vulnerable; defendant inflicted physical and emotional injury; defendant was an active participant; the crime was likely to recur; and if not in prison, defendant would be a danger. The factors favoring probation were the lack of a criminal record, the lack of sophistication in the crime, defendant’s remorse and the effect on her family.
The court imposed consecutive sentences because the crimes and their objectives were independent and the crimes involved separate acts of violence.
Defense counsel objected to the consecutive sentencing, arguing there was one transaction and no separate act relating to the minor. The prosecutor argued consecutive sentences were appropriate because there were two victims. The court explained it chose consecutive sentences because the minor’s witnessing the attack on his father was a separate and distinct act from the endangerment of exposing him to a weapon.
DISCUSSION
I. Abuse of Discretion to Deny Probation
Citing only the evidence favorable to her, defendant contends the trial court abused its discretion in denying probation. She insists this is a very unusual case, an aberration that would never occur again.
Because defendant willfully inflicted great bodily injury, she was ineligible for probation unless the court found an unusual case where the interests of justice would best be served by a grant of probation. (Pen. Code, § 1203, subd. (e)(3).) Thus, the presumption was against probation.
“A denial of a grant of probation generally rests within the broad discretion of the trial court and should not and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner. [Citation.]” (People v. Edwards (1976) 18 Cal.3d 796, 807.) The same abuse of discretion standard applies to the review of the trial court’s determination of whether a case is an unusual one permitting probation. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) We will not interfere with the trial court’s exercise of discretion “when it has considered all facts bearing on the offense and the defendant to be sentenced. [Citations.]” (People v. Vargas (1975) 53 Cal.App.3d 516, 533.)
We find no abuse of discretion. As set forth above, the trial court carefully considered all the factors bearing on the decision whether to grant or deny probation, finding this case was “a state prison case on a variety of different levels.” Defendant attempts to reargue the findings made by the trial court, asserting the injuries she inflicted on her former husband were not that serious, although she admitted inflicting great bodily injury. Further, she ignores the court’s finding, supported by the Penal Code section 1203.03 evaluation, that the crime was likely to recur and defendant would be a danger if not in prison. A defendant bears a heavy burden in attempting to show an abuse of discretion in denying probation. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) Defendant has not come close to shouldering the burden.
II. Error to Impose Consecutive Sentences
Defendant contends the trial court erred in imposing consecutive sentences because the incident was a single course of conduct that was over quickly. Defendant contends that to the extent her counsel failed to object below, she received ineffective assistance of counsel.
The Attorney General contends the issue was forfeited by the failure to object below and defendant fails to show her counsel was ineffective.
Apparently neither appellate counsel read the record; defendant’s trial counsel did object to consecutive sentences below on the same ground asserted on appeal. The response to the objection shows there was no error.
The criteria applicable to the trial court’s discretion are set forth in California Rules of Court, rule 4.425 which states that in imposing consecutive sentences a trial court may consider: (1) whether the “crimes and their objectives were predominantly independent of each other[;]” (2) whether the “crimes involved separate acts of violence or threats of violence[;]” and (3) whether the “crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.” (Cal. Rules of Court, rule 4.425(a)(1)-(3).) These criteria, however, are not exclusive. “The enumeration in these rules of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made. Any such additional criteria shall be stated on the record by the sentencing judge.” (Cal. Rules of Court, rule 4.408(a).)
In response to defendant’s objection below, the prosecutor stated consecutive sentences were justified by the fact there were two victims. A trial court may use the fact of multiple victims to impose the upper term or consecutive sentences, although not both. (People v. Calhoun (2007) 40 Cal.4th 398, 408.) The trial court articulated the theory of separate crimes; the son was endangered by the exposure to the deadly weapon and he was emotionally harmed by witnessing the attack on his father by his mother. The trial court properly imposed consecutive sentences.
III. Cunningham
Defendant contends imposing consecutive sentences based on facts not found by a jury or admitted by defendant violated her Sixth Amendment rights under Cunningham v. California, supra, 549 U.S. ___ [166 L.Ed.2d 856]. In People v. Black (2007) 41 Cal.4th 799, 823, the California Supreme Court held the imposition of consecutive sentences does not implicate Sixth Amendment rights under Cunningham. Moreover, defendant waived the right to a jury trial on sentencing factors as part of her plea.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J. CANTIL-SAKAUYE, J.