Opinion
E075410
11-07-2022
THE PEOPLE, Plaintiff and Respondent, v. ABEL JOSUE GARCIA, Defendant and Appellant.
Spolin Law and Aaron Spolin, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Arlene A. Sevidal, Acting Assistant Attorney General, Collette C. Cavalier and Juliet W. Park, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FWV19001124 Michael A. Knish, Judge. Affirmed.
Spolin Law and Aaron Spolin, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Arlene A. Sevidal, Acting Assistant Attorney General, Collette C. Cavalier and Juliet W. Park, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON, J.
I.
INTRODUCTION
Defendant and appellant Abel Garcia was sentenced to 25 years to life after being convicted of felony assault with a deadly weapon for hitting his father-in-law with a shovel. He argues his conviction must be reversed because it is not supported by substantial evidence, the trial court erroneously instructed the jury, and the prosecution committed Brady error. He also argues the trial court erroneously denied his Romero motion and his motion to reduce his conviction from a felony to a misdemeanor. We reject defendant's contentions and affirm the judgment.
Brady v. Maryland (1963) 373 U.S. 83 (Brady).
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
II.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant's wife, Danielle W., kicked defendant out of the house because of his drug use. About two days later, she saw him on their home security cameras in the garage. Danielle thought defendant was trying to start a fire in the garage, so she and her parents, Carol and Christopher, went to the house.
When Danielle and her parents arrived, defendant was talking erratically and began yelling at them. Danielle thought defendant was on drugs. As they entered the garage, Christopher told defendant to leave. Because defendant refused and became angry, Danielle called 911.
Defendant then picked up his clothes and ran out of the garage. He ran back into the garage, grabbed a five-foot shovel with a metal end by the handle with two hands, and swung it at Christopher's head. Christopher was about two feet away and immediately held up his arms to protect himself. Defendant kept swinging, hitting Christopher's wrist at least twice.
Officer Jose Llamas responded to the scene and found defendant sitting on a curb across the street talking with other officers. Christopher's arm had "some redness" and "some slight, slight swelling," and later went to urgent care.
Danielle showed Officer Llamas the home security video recording of defendant in the garage, but told him that it did not capture defendant hitting Christopher. Danielle later deleted the video after showing it to Officer Llamas because she did not have enough memory on her phone.
Defendant was convicted of one count of felony assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) After a bifurcated trial, the trial court found that defendant had previously suffered three prior strike convictions. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The trial court denied defendant's Romero motion and his motion to reduce his felony conviction to a misdemeanor under section 17, subdivision (b), and sentenced him to an indeterminate term of 25 years to life.
All further statutory references are to the Penal Code.
III.
DISCUSSION
A. Substantial Evidence Supports Defendant's Conviction for Assaulting Christopher With a Deadly Weapon
Defendant contends there was insufficient evidence that he assaulted Christopher with a deadly weapon because there was no evidence that defendant used the shovel in a way that was likely to cause death or great bodily injury. We disagree.
1. Standard of Review
"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility." (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
"'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.'" (People v. Thomas (1992) 2 Cal.4th 489, 514.) We may reverse a conviction for a lack of substantial evidence only if it appears "'"that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]."'" (People v. Cravens (2012) 53 Cal.4th 500, 508.)
2. Analysis
"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) "For purposes of assault with a deadly weapon under section 245(a)(1), 'a "deadly weapon" is "any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury." [Citation.]'" (In re Raymundo M. (2020) 52 Cal.App.5th 78, 85 (Raymundo M.).)
On this record, the jury could reasonably conclude that defendant assaulted Christopher with a deadly weapon. Raymundo M., supra, 52 Cal.App.5th 78, is instructive. There, the juvenile "raised the knife from waist-high to head-high, indicating he intended to use it in an offensive manner. Then, rather than merely brandish the knife while standing still, [the juvenile] lunged and ran toward [the victim] from 10 to 12 feet away." (Raymundo M., supra, at pp. 87-88.) The victim ran away, and the juvenile unsuccessfully chased him. (Ibid.)
The Court of Appeal held there was substantial evidence that the juvenile committed assault with a deadly weapon. (Raymundo M., supra, 52 Cal.App.5th at pp. 87-88.) The court reasoned that the "evidence support[ed] the reasonable finding that, but for [the victim] fleeing in fear for his life, [the juvenile] actually used the knife in a way capable of producing, and likely to produce, death or great bodily injury-that is, as a deadly weapon." (Ibid.)
In reaching this conclusion, the Raymundo M. court relied on People v. Yslas (1865) 27 Cal. 630. In Ylas, the defendant approached the victim from about seven or eight feet away with a raised hatchet, but the victim ran to the next room and locked the door. (Id. at 634.) The Ylas court held that the defendant committed assault, even though he did not close the distance between himself and the victim or swing the hatchet. (Ibid.) The court rejected the defendant's argument that he did not commit assault because he did not get near the victim: "It is not indispensable to the commission of an assault that the assailant should be at any time within striking distance. If he is advancing with intent to strike his adversary and come sufficiently near to induce a man of ordinary firmness to believe, in view of all the circumstances, that he will instantly receive a blow unless he strike in self-defense or retreat, the assault is complete. In such a case the attempt has been made coupled with a present ability to commit a violent injury within the meaning of the statute. It cannot be said that the ability to do the act threatened is wanting because the act was in some manner prevented." (Id. at p. 634.)
Like the defendant in Ylas, the juvenile in Raymundo M. approached the victim with a raised weapon from a short distance away and, like the victim in Ylas, the victim in Raymundo M. escaped injury only by retreating. (Raymundo M., supra, 52 Cal.App.5th at p. 88.) In both cases, the courts held that the perpetrator committed assault with a deadly weapon even though neither of them got near their victims or swung a weapon at the victims. (Ibid.; Ylas, supra, 27 Cal. at p. 634.)
The jury heard evidence that defendant grabbed a five-foot-long shovel with a metal head and swung it at Christopher's head using both hands while standing only about two feet away. The only reason defendant did not hit Christopher in the head was because Christopher blocked the blows with his hands. Even then, defendant continued hitting Christopher with the shovel multiple times. From this evidence, the jury reasonably concluded that defendant assaulted, even if defendant did not cause Christopher to suffer serious injuries. (See Raymundo M., supra, 52 Cal.App.5th at p. 90 ["[S]ubstantial evidence supports the juvenile court's factual finding that, by lunging and running toward [the victim] with a raised switchblade-like knife from a distance of 10 to 12 feet away, [the juvenile] used the knife in a manner that likely would have caused great bodily injury to [the victim] had [the victim] not taken evasive actions"]; see also People v. Chance (2008) 44 Cal.4th 1164, 1173 ["[A]n assault may occur even when the infliction of injury is prevented by environmental conditions or by steps taken by victims to protect themselves"]; People v. Bernal (2019) 42 Cal.App.5th 1160, 1168 ["[A] jury could reasonably conclude that the [victim] would likely have been touched with the knife had he not moved out of the way"].)
The jury also could have reasonably found that defendant assaulted Christopher with a deadly weapon. A weapon is deadly if it is inherently deadly or used in a manner capable of producing and likely to produce, death or great bodily injury. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.)
The People do not contend the shovel defendant used was inherently deadly, but argue that he used it in a manner that was capable and likely to produce death or great bodily injury. We agree. Again, defendant used both hands to swing the five-foot-long shovel's head at Christopher's head from about two feet away, but ended up hitting only Christopher's hands because Christopher blocked the swings. The evidence thus supports the reasonable inference that but for Christopher's actions, defendant "actually used the [object] in a way capable of producing, and likely to produce, death or great bodily injury [to Christopher]-that is, as a deadly weapon." (See Raymundo M., supra, 52 Cal.App.5th at p. 88; see also In re B.M. (2018) 6 Cal.5th 528, 537 ["[A]n aggressor should not receive the benefit of a potential victim fortuitously taking a defensive measure or being removed from harm's way once an assault is already underway."].)
Substantial evidence thus supports the jury's finding that defendant assaulted Christopher with a deadly weapon. (See Raymundo M., supra, 52 Cal.App.5th at p. 88; accord, People v. Nguyen (2017) 12 Cal.App.5th 44, 48 [defendant, who pointed knife at police officers and took a step toward them from 10 to 15 feet away before they shot him, was liable for assault with a deadly weapon on peace officer]; People v. Bernal, supra, 42 Cal.App.5th at p. 1164 [defendant guilty of assault with a deadly weapon for displaying knife, asking victim "'Do you want to do this?,'" and running away]; People v. Vorbach (1984) 151 Cal.App.3d 425, 429 [brandishing knife in a threatening manner is sufficient evidence of assault with a deadly weapon].)
B. The Trial Court's Instructional Error Was Harmless
The trial court instructed the jury with CALCRIM No. 875, which defined a deadly weapon as "any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury." Defendant argues, the People concede, and we agree that the trial court erroneously instructed the jury because the shovel defendant used to assault Christopher was not inherently deadly. (See People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat) [holding trial court errs by instructing jury on inherently deadly weapons unless the weapon used in the assault was inherently deadly, and a knife is not inherently deadly].)
In Aledamat, supra, 8 Cal.5th 1, the defendant assaulted the victim with a deadly weapon by thrusting a box cutter at the victim from a few feet away while saying, "'I'll kill you.'" (Id. at p. 4.) The box cutter was not an inherently deadly weapon, yet the trial court instructed the jury with CALCRIM No. 875's language about inherently deadly weapons. (Ibid.)
Our Supreme Court held the trial court erred in doing so, but held that the error was harmless beyond a reasonable doubt for several reasons. (Aledamat, supra, 8 Cal.5th at p. 6.) First, the Aledamat court noted that CALCRIM No. 875 juxtaposed "'inherently deadly'" with "'used in such a way that it is capable of causing [injury] and likely to cause death or . . . great bodily injury,'" and therefore "at least indicate[d] what the 'inherently deadly' language was driving at." (Id. at pp. 13-14.)
Our Supreme Court also noted that "the jury necessarily found the following: (1) defendant did an act with a deadly weapon (either inherently or as used) that by its nature would directly and probably result in the application of force; (2) defendant was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and (3) defendant had the present ability to apply force with a deadly weapon to a person." (Aledamat, supra, 8 Cal.5th at p. 15.) The Aledamat court concluded that "'[n]o reasonable jury that made all of these findings could have failed to find' that defendant used the box cutter in a way that is capable of causing or likely to cause death or great bodily injury." (Ibid., citing People v. Merritt (2017) 2 Cal.5th 819, 832.)
The Aledamat court also considered a jury instruction, which was not given here, that directed the jury to "'consider all of the surrounding circumstances including when and where the object was possessed and any other evidence that indicates whether the object would be used for a dangerous rather than a harmless purpose.'" (Aledamat, supra, 8 Cal.5th at p. 14.) Given this instruction, our Supreme Court found that it was unlikely the jury improperly relied on the "inherently deadly" language of CALCRIM No. 875. (Ibid.) The court reasoned that the jury would have understood the box cutter the Aledamat defendant used to be deadly "in the colloquial sense of the term-i.e., readily capable of inflicting deadly harm-and [found that] defendant used it as a weapon." (Id. at p. 15.)
Next, the Aledamat court observed that in closing argument "no one ever suggested to the jury that there were two separate ways it could decide whether the box cutter was a deadly weapon. Defense counsel argued that defendant did not use the box cutter in a way that would probably result in the application of force, that is, that defendant did not assault the victim at all-an argument the jury necessarily rejected when it found defendant guilty of that crime. But counsel never argued that, if he did assault the victim with the box cutter, the box cutter was not a deadly weapon." (Aledamat, supra, 8 Cal.5th at p. 14.)
We conclude the trial court's error in instructing defendant's jury with CALCRIM No. 875 was harmless beyond a reasonable doubt for many of the same reasons the Aledamat court found the same instruction was harmless.
First, as in Aledamat, CALCRIM No. 875 juxtaposed "'inherently deadly'" with "'used in such a way that it is capable of causing [injury] and likely to cause death or . . . great bodily injury,'" and therefore "at least indicate[d] what the 'inherently deadly' language was driving at." (Id. at pp. 13-14.) The instruction suggested that an "inherently deadly" object means something different and deadlier than an object that can be used in a manner that could cause great bodily injury or death. (See id. at pp. 13-14 ["[t]his juxtaposition at least indicates what the 'inherently deadly' language was driving at"].) No reasonable juror would have concluded that a shovel, an everyday item used for yardwork, is inherently deadly.
Second, neither the prosecutor nor defendant's counsel never "suggested to the jury that there were two separate ways it could decide whether the [shovel] was a deadly weapon." (Aledamat, supra, 8 Cal.5th at p. 14.) Rather, the prosecutor repeatedly emphasized that defendant was guilty of assault with a deadly weapon because of how he used the shovel. The prosecutor told the jury, "Make no mistake that this [shovel] can be used as a deadly weapon." He argued that defendant was guilty of assault with a deadly weapon because he "wrapped his hands around the handle, and he swung that shovel back and forth at Christopher with a metal end towards Christopher's head." The prosecutor went on: "When [appellant] swung this shovel back and forth at Christopher's head, he lifted his left arm to protect his head, because you know the kind of blow a shovel to the head can deliver. You could crack a skull. You can get a concussion. You can knock someone unconscious. You could suffer internal/external bleeding. Christopher's reaction was a natural one when he's being attacked in the head by the metal end of this shovel." At no point did the prosecutor suggest that defendant was guilty as charged simply because he used a shovel or that a shovel is inherently deadly.
Third, even if the jury erroneously found that the shovel was inherently deadly, no jury who convicted defendant would have found that he did not use the shovel as a deadly weapon "in the colloquial sense of the term-i.e., readily capable of inflicting deadly harm." (Aledamat, supra, 8 Cal.5th at p. 15.) By convicting defendant under the instructions given, the jury found that "(1) defendant did an act with a deadly weapon (either inherently or as used) that by its nature would directly and probably result in the application of force; (2) defendant was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and (3) defendant had the present ability to apply force with a deadly weapon to a person." (Aledamat, supra, 8 Cal.5th at p. 15.) No rational jury would have made these findings while also finding that the shovel was an inherently deadly weapon. (Ibid.) As a result, we conclude the trial court's error in giving CALCRIM No. 875 was harmless beyond a reasonable doubt. (Ibid.)
C. There Was No Brady Violation
Defendant contends his conviction must be reversed because law enforcement violated Brady by failing to preserve a copy of the recording from Danielle's home security camera. We disagree.
The People argue defendant does not assert a Brady error, but rather a claim under California v. Trombetta (1984) 467 U.S. 479 and Arizona v. Youngblood (1988) 488 U.S. 51. In his reply, defendant maintains that he asserts only a Brady claim. We therefore determine whether there was Brady error only.
The People contend defendant forfeited this argument because he did not advance it in the trial court. We exercise our discretion to address the argument on the merits "to avert [defendant's] claim of inadequate assistance of counsel." (People v. Yarbrough (2008) 169 Cal.App.4th 303, 310.)
In Brady, the United States Supreme Court established that due process requires the prosecution to disclose evidence that is both favorable to the defendant and material on either guilt or punishment. (Brady, supra, 373 U.S. at p. 87.) A Brady violation occurs when three elements are met: (1) the evidence was "'favorable'" to the defendant, (2) the evidence was "'suppressed by the State, either willfully or inadvertently,'" and (3) the evidence was "material" (i.e., its suppression was prejudicial). (People v. Letner and Tobin (2010) 50 Cal.4th 99, 176.) We independently review whether a Brady violation has occurred while giving great weight to the trial court's factual findings if supported by substantial evidence. (Ibid.)
Defendant's Brady claim does not satisfy any of these elements. To begin with, "[d]efendant has failed to establish that the prosecution . . . suppressed any information." (People v. Zaragoza (2016) 1 Cal.5th 21, 52.) Danielle deleted the only copy of the video shortly after showing it to the responding officers; law enforcement did not delete the video. For this reason alone, defendant's Brady claim fails. (Ibid. ["To challenge a conviction on Brady grounds, defendant must show that the prosecution suppressed evidence ...."]; People v. Salazar (2005) 35 Cal.4th 1031, 1049 [Brady violation requires showing that the defendant could have discovered the favorable evidence with reasonable diligence but for the prosecution's suppression of it].)
Defendant also has not "discharged his burden to show that the evidence allegedly [destroyed] was favorable and material." (People v. Zaragoza, supra, 1 Cal.5th at p. 52 .) Danielle and Officer Llamas testified that the video recording did not show defendant's altercation with Christopher. Defendant speculates that the video recording might have been useful as impeachment evidence because it may have contradicted Danielle and Officer Llamas' testimony. "But speculation that favorable and material evidence might be found does not establish a violation of Brady." (Ibid.) At a minimum, defendant must point to something in the record that suggests the video Danielle deleted could have been used as impeachment evidence. (See ibid.; see also People v. Ashraf (2007) 151 Cal.App.4th 1205, 1214.) Because defendant cannot point to any favorable evidence that the prosecution suppressed, he necessarily cannot show that any material evidence was suppressed. His Brady claim thus fails.
D. Romero Motion
Defendant contends the trial court abused its discretion by denying his Romero motion to strike one of his prior strike convictions and then denying his motion to reconsider that decision. We disagree.
"As the Supreme Court explained in Romero, section 1385 permits a trial court to strike an allegation of a prior felony conviction in cases brought under the '"Three Strikes'" law, in the interests of justice." (People v. Thimmes (2006) 138 Cal.App.4th 1207, 1213, citing Romero, supra, 13 Cal.4th at pp. 529-530.) "[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation . . . the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
The purpose of the Three Strikes law is "to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of one or more serious or violent felony offenses." (§ 667, subd. (b).) The Three Strikes law "establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike," unless the trial court determines the defendant falls outside the scheme's spirit. (People v. Strong (2001) 87 Cal.App.4th 328, 337-338.) "[E]xtraordinary must the circumstance be by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack." (Id. at p. 338.) Thus, the Three Strikes law "not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm." (People v. Carmony (2004) 33 Cal.4th 367, 378.)
"The trial court is not required to state reasons for declining to exercise its discretion under section 1385." (People v. Gillispie (1997) 60 Cal.App.4th 429, 433.) The trial court "is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary." (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
A trial court's decision not to strike a prior conviction allegation is reviewed under the abuse of discretion standard. (People v. Carmony, supra, 33 Cal.4th at p. 371.) "This standard is deferential . . . it asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts." (People v. Williams, supra, 17 Cal.4th at p. 162.) "Under that standard an appellant who seeks reversal must demonstrate that the trial court's decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance." (People v. Myers, supra, 69 Cal.App.4th at pp. 309-310.)
The trial court explained at length its decision to deny defendant's Romero motion. The court thoroughly considered defendant's "significant" prior record, which includes felony convictions in 2001, 2006, 2008, and 2012, as well as a juvenile felony conviction that was "plea bargained down" to a misdemeanor. The court noted that all of defendant's convictions "involved either weapons, or violence, or a threat of violence," and the most recent one in 2012 involved "scary incident where he had a sharp weapon and randomly assaulted someone." The court also observed that defendant had violated his probation and parole many times, and that he committed his current offense about a year and one half after being released for his previous conviction.
The trial court explained that although defendant was a "nice person" and "respectful in court," there was "very little to show for him" other than "some employment evidence." The court noted, however, that defendant had made no serious efforts to treat his 20-year-long "meth problem," so the court had "very little confidence" that he would overcome his substance abuse issues.
Based on defendant's "recidivism . . . background, character, and prospects," the trial court denied defendant's Romero motion. Given defendant's extensive criminal history involving multiple violent felonies, his decades-long drug problem, and his recidivism and repeated violations of parole, the trial court's finding that defendant did not fall "outside the Three Strikes scheme" was not arbitrary or irrational. The trial court properly found that this was not an "extraordinary" case that justified granting defendant's Romero motion. The trial court thus did not erroneously deny the motion or defendant's motion to reconsider that decision.
E. Motion to Reduce Felony Conviction to a Misdemeanor
Defendant contends the trial court abused its discretion by denying his motion to reduce his felony assault with a deadly weapon conviction from to a misdemeanor under section 17, subdivision (b). We disagree.
Assault with a deadly weapon is a "wobbler," meaning that it may be a felony or a misdemeanor. (§ 245, subd. (a)(1); Raymundo M., supra, 52 Cal.App.5th at p. 90.) A trial court's reduction of a wobbler offense to a misdemeanor under section 17, subdivision (b) of section 17 is an act of leniency to which a convicted defendant is not entitled as a matter of right. (People v. Tran (2015) 242 Cal.App.4th 877, 892.) The statute "does not specify the criteria a court should consider, but California appellate decisions have indicated the pertinent factors may include those relevant to sentencing decisions, such as the circumstances of the offense, the defendant's appreciation of and attitude toward the offense, and the defendant's character as evidenced by the defendant's behavior and demeanor at the trial." (People v. Mullins (2018) 19 Cal.App.5th 594, 611.) The trial court also should consider the defendant's criminal history. (People v. Alvarez (1997) 14 Cal.4th 968, 979.)
Because a court has broad discretion when deciding to reduce a wobbler offense, the court's decision will not be disturbed on appeal unless it is clearly shown to be irrational or arbitrary. (People v. Tran, supra, 242 Cal.App.4th at p. 887.) "'Absent such a showing, we presume the court acted to achieve legitimate sentencing objectives.'" (Ibid.) A court exercises its discretion to impose misdemeanor punishment for a wobbler when rehabilitation does not require or would not be served by incarceration. (People v. Park (2013) 56 Cal.4th 782, 790.)
Defendant fails to show that the trial court's denial of his motion under section 17, subdivision (b) was arbitrary or irrational. The trial court denied the motion in part because of the nature of defendant's offense, noting that defendant used two hands to swing the shovel's metal end at Christopher's head and that Christopher likely did not suffer serious injuries only because he blocked the shovel with his hands. The court also considered defendant's extensive criminal history, including the fact that defendant assaulted Christopher about 17 months after being released from an eight-year prison term for another violent offense. Given the trial court's proper consideration of these factors, the court did not abuse its discretion by denying defendant's section 17, subdivision (b) motion.
IV.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P. J. McKINSTER J.