P. v.
Melton
Filed 9/3/13
P. v. Melton 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NOT TO
BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(Butte)
----
THE PEOPLE,
Plaintiff
and Respondent,
v.
DION CHRISTIAN MELTON,
Defendant
and Appellant.
C070022
(Super. Ct. No. CM025695)
On February 27,
2007,
defendant Dion Christian Melton pled no contest to
§ 211
title="">[1]) and admitted personal
use of a firearm (§ 12022.5, subd. (a)) in exchange for dismissal of the
remaining allegations with a Harvey
an unusual case finding. (§ 1203, subd. (e)(2).)
Notwithstanding the recommendations
of both the probation officer and a diagnostic study (§ 1203.03) for a
found defendant’s case to be an unusual one.
On October 18, 2007, the court imposed a
seven-year state prison sentence, suspended execution, and granted defendant
probation for a term of four years.
After defendant’s third violation of
probation, the trial court lifted the stay and sentenced defendant to state
prison for the previously imposed term of seven years.
Defendant appeals. He contends the trial court abused its
discretion in revoking probation and lifting the stay of his prison
sentence. We reject defendant’s
contention.
FACTS
About 3:20
p.m.
on August 18, 2006, Benjamin H. and
Brandon B., who were walking on a bicycle path to Nord Avenue in Chico, were assaulted by five
individuals. One of the individuals,
later identified as 17-year-old defendant, wore a red bandanna on his head and
brandished a handgun, stating, “‘You know what the fuck this is’†and “‘[e]mpty
your pockets,’†chambering a round into the gun. Another individual hit Benjamin in the
face. Benjamin was wrestled to the
ground where another person kicked him several times. Brandon was “‘blind-sided’†and
knocked unconscious by one of the individuals.
Brandon fell to the ground
where he was kicked in the head by the individuals. A wallet, cell phone, a lighter, and $6 was
stolen from the victims. As the
individuals fled, defendant fired the gun into the air. Brandon suffered a laceration
and bruise on the back of his head. Brandon appeared to be
intoxicated and was unable to recall the assault but knew his wallet and cell
phone had been taken. He refused to be
transported to the hospital. A police
officer opined that Brandon had suffered a
concussion. Benjamin had an abrasion
under his left eye and some cuts to his legs.
The police detained three suspects, including defendant, who matched the
descriptions. Benjamin made an in-field identification
of defendant and the two others. One of
the suspects had Benjamin’s cell phone.
When interviewed, defendant stated
he had been drinking with his friends and encountered the victims on the bike
path. Defendant claimed one of his
friends said something, which started a fight.
Defendant denied he was involved in the fighting. He claimed he found a gun on the ground and
fired it into the air to stop the fight.
PROBATION VIOLATIONS
In July 2008, a petition alleged
defendant violated probation by failing to obey all laws (trespass on railroad
tracks), failing to report a law enforcement contact to his probation officer,
and terminating his participation in an anger management program. Defendant admitted to not reporting the law
enforcement contact and terminating his participation in the anger management
program. The remaining allegation
(trespass on railroad tracks) was dismissed with a
trial court lift the stay on the state prison sentence. Instead, the court reinstated defendant on
probation and ordered him to serve 90 days in jail and to reenroll in a 52-week
anger management class and a class in chemical dependency. The court later stayed for 90 days
defendant’s obligation to attend the anger management classes based on his
inability to pay for the classes.
In September 2010, a petition
alleged defendant violated probation a second time by testing positive for
alcohol on August 10, 2010, and September 13, 2010. On December 1, 2010, defendant admitted
violating probation by testing positive for alcohol on September 13, 2010,
and the remaining allegation (August 10, 2010, positive alcohol test) was
dismissed with a Harvey waiver. The probation officer again recommended that
the trial court lift the stay on the prison sentence. Over the recommendation of the probation
officer, the trial court reinstated defendant on probation.
In November 2011, a petition alleged
defendant violated probation a third time by testing positive for alcohol on
October 30, 2011. Defendant
admitted the allegation. The probation
officer again recommended that the trial court lift the stay on the prison
sentence.
At sentencing, the trial court stated its intent
to lift the stay of execution of the sentence, noting defendant had been to
state prison for the diagnostic study “so [he] could see what it was like†but
“got out and . . . committed three violations of probation.†Defense counsel sought reinstatement on
probation with a treatment program, arguing defendant’s current violation was
based on alcohol use, he had not committed any other crimes of violence, and he
had almost completed his grant of probation and all probation
requirements. The prosecutor agreed with
the court’s intended sentence, noting defendant not only continued to drink
alcohol but also failed to report his contact with law enforcement to the
probation officer, terminated his participation in an anger management program,
and used marijuana.
The trial court rejected defense counsel’s claim
that defendant needed treatment for alcohol, commenting: “I don’t think he needs a treatment
program. I don’t think he’s an alcoholic
and I don’t think he’s a drug abuser. He
just drinks when he wants to [sic] in
violation of the Court’s orders.†The
court terminated probation as unsuccessfully completed and lifted the stay,
ordering defendant to serve the previously imposed sentence of seven years in
DISCUSSION
In support of his contention that the trial
court abused its discretion in lifting the stay of sentence, defendant renews
some of the arguments he presented to the trial court and some of the facts
mentioned in the probation report.
Defendant argues reinstatement on probation would have been in the best
interests of society in view of his relative youth, the fact he had served
almost all of his probation term, he had complied with probation for the most
part, completing required classes and community service, furthered his
education, and had not committed any other crimes of violence. We conclude the trial court did not abuse its
discretion when it revoked probation and sentenced defendant to serve the
previously imposed seven-year prison term.
Probation is “an act of clemency and
grace.†(People v. Rodriguez (1990) 51 Cal.3d 437, 445.) A trial court has very broad discretion in
denying and revoking probation and an appellate court interferes with that
discretion “‘[o]nly in a very extreme case.’â€
(Id. at p. 443.) That case does not present itself here. Defendant’s robbery offense in which he
personally used a gun was a very serious offense. Defendant admitted he had been drinking
alcohol with his friends when the underlying offense was committed. Despite being presumptively ineligible for
probation, the trial court granted defendant probation. The court also granted defendant repeated
opportunities to complete probation.
Despite these opportunities, defendant continued to violate probation by
drinking alcohol. As the trial court
stated, defendant “just drinks when he wants to [sic] in violation of the Court’s orders.†The trial court’s decision to revoke
probation and to lift the stay on the state prison sentence was not
arbitrary. There was no abuse of discretion.
DISPOSITION
The judgment is affirmed.
HOCH , J.
We concur:
RAYE , P. J.
MURRAY , J.
name="_ftn1" title="">[1]
Undesignated
references are to the Penal Code.
name="_ftn2" title="">[2]
People v. Harvey (1979) 25 Cal.3d 754.
