Opinion
NOT TO BE PUBLISHED
Superior Court County Nos. 1147767, 121406, of Santa Barbara Joseph Lodge, Judge
Richard Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, David Zarmi, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Christopher Lee Ventura was on probation for resisting a peace officer (Pen. Code, § 69) when he left the scene of an accident that resulted in the death of the victim. (Veh. Code, § 20001, subd. (a).) Ventura pled guilty to leaving the scene of an accident that resulted in death, and he was found in violation of his probation as a result. The trial court sentenced Ventura to four years for leaving the scene and a consecutive eight months for violating his probation.
On appeal, Ventura contends the trial court abused its discretion in denying his request for probation. We affirm.
FACTS
Prior Case - Probation Granted
On July 29, 2005, Ventura pled no contest to resisting a police officer. The court placed Ventura on three years probation on condition that he obey all laws and not drink or possess alcoholic beverages.
Officers received a complaint of a drunk person disturbing the peace. When officers arrived, Ventura was standing in the middle of the street. He ran back into his home. A neighbor told police Ventura pounded on her door and tried to break a window. Ventura also threatened to shoot her.
The police told Ventura to come out of his home. When he refused to come out, they went in after him. They found him in a closet. He was argumentative and uncooperative as they led him to the police car. On the way to the police station, he threatened to kill the police officers, blow up the jail and his neighborhood. At the station, he kicked one of the police officers in the leg.
Present Offense
In the early morning of August 18, 2006, Ventura was driving his car with Mark Herboldsheimer as a passenger. Ventura lost control of his car at the bottom of a freeway offramp. He crashed into two sign posts and a telephone pole before coming to a stop. Ventura fled the scene on foot, leaving Herboldsheimer, who was not wearing a seat belt, unconscious in the car. Herboldsheimer suffered a broken neck and died a few days later. Ventura turned himself into the Highway Patrol on August 21, 2006.
Diana Forsyth, a tenant of Ventura's mother and the wife of a friend of Ventura, testified at the sentencing hearing. Forsyth said she saw Ventura using alcohol on several occasions in the months prior to the accident. She also saw Ventura using cocaine since June of 2006. She had dinner with Ventura the day before the accident. She saw him take his medication, Klonopin.
The parties stipulated that on December 6, 2006, Ventura was arrested for public intoxication in violation of his probation and while out on bail.
Cheryl A. Smith, Ph.D. is a neuropsychologist. She reported that Ventura has been diagnosed as a schizophrenic. He is on Klonopin. When he is on his medications, he performs well. When he is not on his medication, he becomes erratic. Smith opined his behavior prior to the accident was consistent with him being off his medication. Smith also opined that probation would be appropriate. She said he needs treatment and would not get it in prison.
In denying probation, the trial court stated that Ventura has a serious mental illness, and that Ventura has a "track record" with the court, but he has not made progress. The court found that Ventura is a great danger to the public.
DISCUSSION
The grant or denial of probation rests within the broad discretion of the trial court. (People v. Downey (2000) 82 Cal.App.4th 899, 909.) The denial of probation will not be disturbed on appeal absent a showing that the court's decision is arbitrary or capricious. (Ibid.)
The criteria affecting the court's decision to place a defendant on probation includes: whether the defendant inflicted physical injury (Cal. Rules of Court, rule 4.414(a)(4)); the defendant's prior performance on probation (rule 4.414(b)(2)); the defendant's ability to comply with the terms of probation (rule 4.414(b)(4)); and the likelihood the defendant will be a danger to others if not imprisoned (rule 4.414(b)(8)).
All references to rules are to the California Rules of Court.
Here Ventura's prior performance on probation is alone sufficient to support the trial court's decision. Not only did Ventura violate probation by committing the instant offense, but there was evidence he violated his probation on other occasions by consuming alcohol and using cocaine. Indeed, even after the accident, he was arrested for public intoxication. There is little to suggest that Ventura would be successful on another grant of probation and much to suggest he would not be.
Ventura points to such factors as the lack of evidence that his leaving the scene of the accident caused Herboldsheimer's death, and that he has no history of violence. Ventura's argument amounts to nothing more than a request that we reweigh the factors considered by the trial court. We decline to do so. It is not our function to substitute our own judgment for that of the trial court. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.)
The evidence here paints a picture of a person who from time to time loses control of his impulses. As Herboldsheimer's death sadly demonstrates, one does not have to be intentionally violent to be a danger to others. The trial court did not abuse its discretion in denying probation.
The judgment is affirmed.
We concur: YEGAN, J., COFFEE, J.