IN RE: ESTHER C. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Appellant Esther C. was charged with assault with a deadly weapon (Pen.Code, § 245, subd. (a)(1)) in a petition filed under Welfare and Institutions Code section 602.   The court sustained the petition, declaring the offense a felony.

Appellant challenges the trial court's refusal to reduce her felony finding to a misdemeanor pursuant to Penal Code section 17, subdivision (b).¹  We affirm.

FACTS

Prosecution Evidence

On February 26, 2010, shortly before 10 p.m., 11–year–old Cesar called 911 because he saw a knife in his mother's hand.   Cesar told the 911 operator that appellant was “handling the knife and that she was trying to kill her mom and stuff like that.” ²  There had also been a radio call to the same residence earlier in the evening regarding a father calling in violation of a restraining order.

At about 10 p.m. on February 26, Los Angeles Police Officers Paul Evleth and James Saxton responded to the assault call.   When the officers arrived, appellant was present along with her mother and Cesar.   The three individuals were embracing each other and were visibly in shock.   A knife was found in the house.³

Cesar spoke with the police that night and said appellant was “handling the knife and that she almost tried to kill her mom.”

Defense Evidence

Appellant testified that she made the first telephone call to the police on February 26, because Noelia, who lived with appellant's family, had a restraining order against her husband and he had violated the order by calling her.

Appellant's mother asked appellant to call her last foster home and see if there was a place for her to go.   Appellant got mad and felt rejected.   She picked up a knife and stepped into the living room with it.   Appellant did not intend to stab her mother and just wanted to scare her with the knife.   Eventually, her mother grabbed the knife.   Cesar came out of his room after appellant's mother took the knife from her.

In a written statement, appellant stated that she walked up to her mother and pointed the knife at her mother while screaming.

Rebuttal

Appellant's mother gave a written statement on March 1, 2010, stating that appellant got upset, said she hated her, and “lunged” at her with a knife.   Appellant's mother grabbed appellant by the hand and appellant let go of the knife.

DISCUSSION

Appellant contends that the trial court abused its discretion in declining to reduce the assault allegation to a misdemeanor.   We disagree.

In People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, the Supreme Court explained:  “[S]ection 17[, subdivision ](b), read in conjunction with the relevant charging statute, rests the decision whether to reduce a wobbler solely ‘in the discretion of the court.’   By its terms, the statute sets a broad generic standard.  [Citation.]  The governing canons are well established:  ‘This discretion ․ is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice.  [Citations.]’  [Citation.]  ‘Obviously the term is a broad and elastic one [citation] which we have equated with “the sound judgment of the court, to be exercised according to the rules of law.”  [Citation.]’  [Citation.]”  (Id. at p. 977.)   Thus, “ ‘[a] decision will not be reversed merely because reasonable people might disagree.  “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.”   [Citations.]’  [Citation.]”  (Id. at p. 978.)

In arguing that the offense should be a felony, the prosecutor noted that it was “a vicious, large, nasty knife,” “something that can do a lot of damage.”   He acknowledged that “[m]aybe mom shouldn't have said she was going to call her social worker and put her back in a group home.   There's a lot of things mom shouldn't have done prior to the minor in this case getting mad.   Maybe the minor had a righteous reason to be upset, but to open a drawer and pull out a knife this large and then lunge at your mother with that knife is felony conduct.  [¶] This isn't, you know — if the weapon was smaller, if the situation wasn't as volatile, if the environment wasn't as heated, I would said it's misdemeanor conduct․”  “If this was on the street against someone else, this would be attempted murder.   It would be filed as attempted murder instead of just a [Penal Code section] 245 with a meat cleaver.”

In response, defense counsel pointed out that “[j]ust looking through the preplea report, this is a child who has had no prior contact with the court, no prior contact with an enforcement otherwise in a positive way, no gang affiliation, no alcohol abuse, no drug abuse.   I guess she had had some problems at school.   Once she was transferred to Crenshaw High School attendance is good.   No complaints about her behavior.   Her mother will tell you that she's very, very, very calm in general, and that's why it's so shocking and surprising with the family.”

Defense counsel also indicated that appellant was previously in foster care because she was sexually abused and had been returned to the home about a month prior to this incident and was under a great deal of stress when the incident happened.

The record demonstrates that the trial court considered the nature and circumstances of the offense.   The court indicated that it believed that appellant and other family witnesses lied at the adjudication hearing.   The court stated “that credibility and integrity go a long way” showing that the court considered appellant's appreciation and attitude toward the offense and her behavior and demeanor at trial.  (People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 978.)

The court also indicated in exercising its discretion to make the “wobbler” offense a felony, that it might be inclined in the future to reduce the offense to a misdemeanor upon successful completion of probation.   There is nothing in the record that would warrant a finding of an abuse of discretion by the trial court.

DISPOSITION

The order is affirmed.

We concur:

FOOTNOTES

FN1. Penal Code section 17, subdivision (b), states in relevant part:  “When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:  [¶] (1) After a judgment imposing a punishment other than imprisonment in the state prison.  [¶] ․ [¶] (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.”.  FN1. Penal Code section 17, subdivision (b), states in relevant part:  “When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:  [¶] (1) After a judgment imposing a punishment other than imprisonment in the state prison.  [¶] ․ [¶] (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.”

FN2. At trial, Cesar testified that he lied to the 911 operator..  FN2. At trial, Cesar testified that he lied to the 911 operator.

FN3. The prosecutor referred to the knife as a “meat cleaver” without objection..  FN3. The prosecutor referred to the knife as a “meat cleaver” without objection.

WOODS, Acting P.J. ZELON, J.