Opinion
C081986
03-01-2017
THE PEOPLE, Plaintiff and Respondent, v. TY MILO MARTINOVICH, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. NCR95070)
Defendant Ty Milo Martinovich entered a negotiated plea of guilty to assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)—count II) and admitted that he personally used a firearm during commission of the offense (id., § 12022.5, subd. (a)) in exchange for dismissal of the remaining counts (discharging a firearm from a motor vehicle and unlawful possession of a firearm) and allegation (another allegation of personal use of a firearm), a stipulated, suspended state prison sentence of 12 years, and five years of formal probation subject to 270 days in county jail.
The court accepted the plea agreement, commenting it was a "very close call" given the facts of the underlying offense, and warned defendant that if there was any violation of the terms or conditions of probation, defendant would serve the 12 years in state prison. Defendant indicated that he understood. The court imposed the 12-year sentence, suspended execution, and granted probation subject to terms and conditions including that defendant was prohibited from using or possessing alcohol and requiring him to submit to alcohol and drug testing at any time.
A few months later, defendant admitted that he violated probation by possessing alcohol. The court imposed the previously suspended 12-year sentence.
Defendant appeals. He contends the trial court's imposition of the 12-year sentence was an abuse of discretion given the minor nature of the probation violation. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On July 14, 2015, defendant fired his semiautomatic firearm three times at his neighbor from a car. Defendant mistakenly believed that his neighbor had vandalized a car belonging to defendant's friend.
The original probation report reflects that defendant had a long history of drug and alcohol abuse. He admitted he had sold drugs. He claimed that he shot at his neighbor when " 'loaded on Norco and Xanax.' " His prior convictions included two misdemeanor battery convictions for which he was placed on probation. He had juvenile adjudications for possession of cocaine for sale and battery.
Defendant was presumptively ineligible for probation (Pen. Code, § 1203, subd. (e)(2)) but the trial court found unusual circumstances based on "the stipulated agreement and the facts therein." The court reluctantly granted probation, commenting that defendant's act of firing a gun at someone based on vandalism was "incredibly stupid," but defendant did not have a felony record. The court warned, "so there's no misconceptions here, if you come back in here on a violation of probation, new offense, etcetera, it is all but guaranteed that you're going to serve 12 years in state prison."
On March 14, 2016, a probation search of defendant's home revealed a bottle of beer, a bottle of wine, and a bag of synthetic urine.
The supplemental probation report described defendant's behavior on probation as "poor." In December 2015, defendant admitted to drinking alcohol. In late January and February 2016, defendant failed to report for scheduled probation visits. In early January 2016, defendant admitted to associating with Norteño gang members. Defendant covered his bedroom in red, the gang color, and wore red clothing.
The prosecutor sought imposition of the 12-year sentence, noting that defendant had been warned about the consequences of violating probation.
Probation noted that defendant was "quite fortunate" to receive an initial grant of probation. He was still unemployed, forgot about many appointments while on probation, and had issues with alcohol. Probation recommended state prison.
In denying a continued grant of probation and imposing the 12-year sentence, the court noted that when it originally granted probation, defendant was on "very thin ice" and that he had been admonished. The court concluded that defendant's noncompliance with probation conditions rendered him unsuitable for continued probation.
DISCUSSION
Defendant contends the trial court abused its discretion in imposing the previously suspended 12-year prison sentence rather than selecting an alternative for his minor violation of probation. We disagree.
When a trial court finds a violation of probation and revokes probation, the court may reinstate probation on the same terms or modified terms, or terminate probation and sentence the defendant to state prison. When a prison term is imposed but execution suspended with a grant of probation, and the court finds a violation of probation, the court has the discretion to impose the suspended punishment. When the trial court has considered all the facts and circumstances underlying the offense and those about defendant, the court has not abused its discretion unless it has exceeded the bounds of reason. (People v. Bolian (2014) 231 Cal.App.4th 1415, 1420-1421; People v. Parker (2013) 217 Cal.App.4th 498, 502; People v. Downey (2000) 82 Cal.App.4th 899, 909-910.)
Defendant has failed to demonstrate that the court abused its discretion. The facts underlying the offense are troubling and rendered defendant ineligible for a grant of probation in the first instance but for the plea agreement and the court's acceptance of same. Defendant fired a semiautomatic gun at his neighbor, whom defendant wrongly believed vandalized a friend's car. Defendant had a long history of drug and alcohol abuse. He admitted having previously sold drugs. He claimed he committed the underlying offense while "loaded" on drugs. His prior juvenile adjudications included possession of drugs for sale and battery. His adult record included two prior battery convictions resulting in a grant of probation. His probation conditions prohibited him from using or possessing drugs and alcohol and required him to submit to testing. He was admonished that any probation violation would result in being sent to prison. Nonetheless, he admitted drinking alcohol while on probation, failed to report for probation visits, associated with gang members and used their color for his clothing and to decorate his room, and remained unemployed. A search of his home revealed beer, wine, and synthetic urine which could be used to fraudulently pass a drug or alcohol test. The trial court did not exceed the bounds of reason in denying probation and lifting suspension of the previously imposed 12-year state prison sentence.
DISPOSITION
The judgment is affirmed.
BUTZ, Acting P. J. We concur: MAURO, J. DUARTE, J.