P. v.
Antonsen
Filed 5/17/13 P. v. Antonsen CA3
NOT TO
BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
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>
THE PEOPLE, Plaintiff and Respondent, v. MARC LEE ANTONSEN, Defendant and Appellant. | C068739 (Super. Ct. Nos. 05F8308, 06F4080) |
Defendant Marc Lee Antonsen appeals
from a judgment imposing a state prison
sentence of seven years following the revocation of his probation. He contends (1) the trial court abused
its discretion in revoking his probation and imposing the prison sentence, and
(2) it was reversible error not to have the same judge who sustained the
probation violation petitions also conduct the
FACTUAL AND PROCEDURAL
BACKGROUND
Case No. 05F8308: Defendant became involved in a dispute with
William Bishop over a driveway Bishop had hired defendant to build. On July 1,
2005,
defendant demanded payment from Bishop, but Bishop refused because he did not
believe defendant had finished the job.
That night, defendant, accompanied by another person, went to Bishop’s
home to discuss payment. Upon being
invited in by Bishop, defendant struck Bishop twice in the face, knocking him
unconscious. When Bishop regained
consciousness, defendant told Bishop that if Bishop did not pay him by July
5th, he would burn the trailer in which Bishop lived and kill him.
Case No. 06F4080: On May 22, 2006, Steven Thorwaldson was
on a road walking home from the residence of an acquaintance when he saw
defendant, who told Thorwaldson that he was walking on defendant’s property. Thorwaldson replied that it was a public
thoroughfare. Defendant said, “You can’t
come on my property, or I’ll kill you.â€
Defendant hit Thorwaldson several times with a rock and kicked
Thorwaldson five to six times while Thorwaldson was on the ground. As Thorwaldson got up to walk away, defendant
told Thorwaldson that he would “kick [Thorwaldson’s] ass†if he came back on
defendant’s property.
On November 3,
2006,
defendant pled guilty in case No. 05F8308 to assault by means of force
likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1))
No. 06F4080, he pled guilty to assault with a deadly weapon (§ 245,
subd. (a)(1)) and admitted a sentence enhancement for being on bail
(§ 12022.1) and serving a prior prison term (§ 667.5, subd.
(b)). In exchange for his pleas and
admissions, defendant was sentenced to state prison for seven years, execution
of sentence was stayed, and he was granted probation for three years.
of Probation
Three petitions for violation of
probation are involved in this appeal.
The first petition was filed on February 3, 2010. It alleged that around January 21, 2010,
defendant was in possession of a stolen 1969 Firebird automobile attached to
which were VIN plates to conceal the stolen status of the vehicle.
The second petition was filed on
December 14, 2010, and alleged that on or about September 16, 2010,
defendant failed to report a prescription for Vicodin to his probation officer,
he had a methamphetamine pipe and two hypodermic needles in his possession, he
unlawfully used a police scanner, and he failed to submit monthly reports to
the probation department.
The third petition, filed on
May 2, 2011, alleged that around March 25, 2011, defendant unlawfully
took a 1969 Volkswagen and failed to report to the probation department the
following working day when released from jail.
On June 21, 2011, Judge James
Ruggiero sustained violation of probation petitions against defendant filed on
February 3, 2010, December 14, 2010, and May 2, 2011, and
continued the matter for sentencing. On
July 14, 2011, Judge Anthony A. Anderson conducted the sentencing
hearing. Judge Anderson revoked defendant’s
probation, declined defendant’s request to reinstate him on probation, and
imposed the previously suspended seven-year sentence.
DISCUSSION
and Imposition of Prison Sentence
Defendant contends it was an abuse
of discretion for the trial court to revoke defendant’s probation and impose
the seven-year prison sentence. We
disagree.
A trial court’s sentencing decision
is reviewed for abuse of discretion. (
825, 847.) “In reviewing for abuse of
discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party
attacking the sentence to clearly show that the sentencing decision was
irrational or arbitrary.
[Citation.] In the absence of
such a showing, the trial court is presumed to have acted to achieve the
legitimate sentencing objectives, and its discretionary determination to impose
a particular sentence will not be set aside on review.â€â€™ [Citation.]
Second, 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.Չۉ۪
[Citation.] Taken together, these
precepts establish that a trial court does not abuse its discretion unless its
decision is so irrational or arbitrary that no reasonable person could agree
with it.†(People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
Defendant claims he has a relatively
minimal criminal record. Defendant also attempts to mitigate the
record, claiming the underlying assaults were the result of “civil disputes†in
which he lost his temper and the “assaults at issue weighed in favor of
reinstating [him] on probation.â€
The record is not supportive of
defendant’s claim of a minimal criminal record.
In 1990, defendant was convicted of involuntary manslaughter, given a
four-year suspended sentence, and granted probation. He violated probation and was sent to state
prison. He was paroled but found in
violation of parole and ordered to complete his prison term. In 2002, defendant was convicted of an
alcohol or drug-related driving offense (Veh. Code, § 23103.5, subd. (a))
for which he was granted three years’ probation. And he committed the instant two felony
assaults in 2005 and 2006. This is not a
minimal prior criminal record.
Defendant next claims that during
his life, he had to deal with the deaths of his infant nephew and 19-day-old
son; he suffered a serious back injury from which he is in constant pain; and
while in jail on the probation violation petitions, he was assaulted, which
resulted in his having a stroke and being confined to a wheelchair. Following the probation revocation hearing
held on June 21, 2010, defendant “finally acknowledged that he had never
addressed these problems, but instead self-medicated by using marijuana,
alcohol and methamphetamines†and now has sought and been accepted into several
residential treatment programs.
Despite defendant’s belated
acknowledgment that he is in need of treatment, the record shows many of his
problems were brought on by his own behavior:
specifically, defendant’s commission of multiple criminal offenses and
his lengthy addiction to alcohol and drugs coupled with his failure to obtain
treatment for that condition.
Defendant’s assertion that addiction to drugs is a recognized mitigating
factor does not apply to his circumstances.
Here, defendant, who was 46 years old at the time of sentencing, has
failed to address his addiction problem.
Under these circumstances, defendant’s addiction to drugs and alcohol is
considered an aggravating sentencing factor.
(People v. Reyes (1987) 195
Cal.App.3d 957, 963.)
“Finally,†defendant claims “sending
him to prison for seven years will not serve the public interest.†Defendant’s record demonstrates he is a
danger to society. He is physically
assaultive, he is a thief, and he has continued to be a drug abuser. Contrary to defendant’s claim, sentencing him
to state prison will serve the public interest.
There was no abuse of discretion by
the trial court in refusing to reinstate defendant’s probation.
II
Sentencing Hearings
As previously noted, Judge Ruggiero
presided over the trial on defendant’s probation violation allegations and
sustained all three of the petitions.
Judge Anderson presided over defendant’s sentencing hearing wherein he
revoked and refused to reinstate defendant’s probation, and imposed the
previously stayed seven-year sentence.
Defendant contends Judge Anderson
committed reversible error when he, rather than Judge Ruggiero, conducted the
probation revocation and sentencing hearing.
We disagree.
Neither party has cited, nor has our
research disclosed, a statute, case, or rule of court providing a defendant the
right to have the same judge who conducted the trial on the defendant’s
probation violation hearing also conduct the probation revocation and
sentencing proceeding. Nevertheless, we
are not without guidance.
In People v. Jacobs (2007) 156 Cal.App.4th 728, Judge Champlin presided
over a jury trial that resulted in the defendant’s conviction of several felony
offenses. (Id. at pp. 730-731.)
Judge Champlin initially set a date for sentencing, but the defendant
requested more time to determine whether a Romero
motion (motion to have court strike a prior strike conviction) should be
filed. (Id. at p. 731.) When
the parties appeared for sentencing, Judge Kroyer was presiding. (People
v. Jacobs, supra, 156 Cal.App.4th at p. 731.) The defendant requested a continuance to a
date when Judge Champlin would be available, but Judge Kroyer denied the
request and sentenced the defendant to state prison. (Id.
at p. 732.)
On appeal, the defendant argued that
he had a right to be sentenced by “the trial judge.†(People
v. Jacobs, supra, 156 Cal.App.4th at p. 733.) The appellate court responded: “Unlike a defendant who enters into a plea
bargain with an implied term that the same judge who accepts the plea will
impose the sentence [citations], a defendant who has been convicted after trial
has no such right. [Citations.] As the California Supreme Court tersely
declared in [People v. Downer (1962)
57 Cal.2d 800], ‘It is settled that it is not error for a judge other than the
one who tried a criminal case to pronounce judgment and sentence.’ [Citation.] . . . In short,
defendant had no right to be sentenced by Judge Champlin.†(Ibid.)
The same reasoning applies
here. A defendant is not entitled to
have the judge who found him or her in violation of probation also determine
whether to revoke and reinstate probation or to impose a previously suspended
sentence.
DISPOSITION
The judgment is affirmed.
HOCH , J.
We concur:
BLEASE , Acting P. J.
DUARTE , J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Penal Code.
name="_ftn2" title="">[2] The seven-year term was imposed as follows: In case No. 05F8308, one year for the
felony assault; in case No. 06F4080, three years for the felony assault
plus two years for the on-bail enhancement, plus one year for serving the prior
prison term.
