Opinion
2d Crim. No. B231747 Super. Ct. No. 2006004711
01-19-2012
THE PEOPLE, Plaintiff and Respondent, v. DONALD LEE MONTGOMERY, Defendant and Appellant.
California Appellate Project, Jonathan B. Steiner, Executive Director, Richard B. Lennon, Staff Attorney, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Corey J. Robins, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Ventura County)
Donald Lee Montgomery appeals the revocation of his probation and sentence to seven years eight months in state prison. He contends the trial court abused its discretion in revoking probation and sentencing him to prison. We affirm.
FACTS AND PROCEDURAL HISTORY
In March 2006, Montgomery was charged with attempted murder (Pen. Code, §§ 664/187, subd. (a)), inflicting corporal injury (§ 273.5, subd. (a)), false imprisonment (§ 236) and making criminal threats (§ 422). The victim of the offenses was his wife Hazel Theys. In a jury trial, he was acquitted of the attempted murder and convicted of the other three offenses. The jury also found true allegations that Montgomery personally used a knife in the offenses (§ 12022, subd. (b)(1)), and inflicted great bodily injury (§ 12022.7, subd. (e)). At sentencing, the trial court imposed a sentence of three years for the corporal injury offense, plus four years for the great bodily injury enhancement and eight months for the criminal threat offense. A two-year sentence for the false imprisonment offense was stayed pursuant to section 654. The trial court then suspended execution of the sentence and placed Montgomery on five years formal probation.
All statutory references are to the Penal Code.
In November 2010, a new charge of inflicting corporal injury (§ 273.5, subd. (a)) was filed against Montgomery, as well as a notice of violation of probation based on that charge. The new charge alleged that he pushed the same victim, Hazel Theys, as in his 2006 offenses causing her to fall into a kitchen cabinet. Montgomery and Theys had divorced prior to the 2010 offense. At a December 2010 hearing, Montgomery was found to be in violation of probation and his probation was revoked. At the January 2011 sentencing, he was sentenced to state prison for the previously-imposed but suspended prison term of seven years eight months.
DISCUSSION
Montgomery contends the trial court abused its discretion by revoking his probation and sentencing him to state prison. We disagree.
After finding that a defendant has violated probation, a trial court may either reinstate probation on the same or modified terms, or terminate probation and order the defendant committed to prison "if the interests of justice so require." (§ 1203.2, subd. (b); People v. Medina (2001) 89 Cal.App.4th 318, 321; People v. Harris (1990) 226 Cal.App.3d 141, 147.) In considering whether to reinstate or revoke probation, the court's inquiry is directed to the probationer's performance on probation and whether the defendant can conform his or her conduct to the law in the future. (People v. Beaudrie (1983) 147 Cal.App.3d 686, 691.) The trial court is vested with broad discretion in determining whether to reinstate or revoke probation, and its order is reviewed for abuse of discretion. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.) We will not interfere with the trial court's decision when the court has considered all facts bearing on the offense and the defendant. (People v. Downey (2000) 82 Cal.App.4th 899, 909-910; see also People v. Rodriguez (1990) 51 Cal.3d 437, 443.)
There was no abuse of discretion in this case. The record shows that, in placing him on probation for the 2006 offenses, the trial court stated that Montgomery had a serious drug problem involving methamphetamine, the offenses were serious, and that the probation department recommended denial of probation. The court also stated that the case was "particularly difficult" because Montgomery was a doctor and extremely intelligent. The court balanced these factors in favor of probation but warned Montgomery that any future incident would result in a prison sentence.
The record further indicates that, before reaching its decision to revoke probation in 2010, the trial court considered all of the circumstances surrounding the 2006 convictions, the 2010 offense, Montgomery's prior criminal record, and his prior performance on probation. The court considered testimony from victim Hazel Theys, the police officer who responded to the 2010 incident, and Montgomery himself. The trial court also considered the 2010 probation report which recommended revocation of probation.
Montgomery argues that reinstatement of probation was required because he is a 55-year-old doctor, and had remained clean and sober for several years following the 2006 offenses. He also argues that the injury to the victim in the 2010 incident was minor. We do not dispute any of the elements of this argument, but the same arguments were made and considered in and by the trial court. Based on the record as a whole, the trial court's decision to revoke probation and impose the original prison sentence was supported by the evidence and was not an abuse of discretion.
The judgment (order) is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P.J.
YEGAN, J.
David Hirsch, Judge
Superior Court County of Ventura
California Appellate Project, Jonathan B. Steiner, Executive Director, Richard B. Lennon, Staff Attorney, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Corey J. Robins, Deputy Attorney General, for Plaintiff and Respondent.