The People v. Melton CA3

Filed 9/3/13 P. v. Melton CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C070022

v. (Super. Ct. No. CM025695)

DION CHRISTIAN MELTON,

Defendant and Appellant.

On February 27, 2007, defendant Dion Christian Melton pled no contest to second degree robbery (Pen. Code, § 2111) and admitted personal use of a firearm (§ 12022.5, subd. (a)) in exchange for dismissal of the remaining allegations with a Harvey waiver.2 Defendant was ineligible for probation absent an unusual case finding. (§ 1203, subd. (e)(2).) Notwithstanding the recommendations of both the probation officer and a diagnostic study (§ 1203.03) for a state prison sentence, the trial court found defendant‟s case to be an unusual one. On October 18, 2007, the court imposed a seven-year state

1 Undesignated references are to the Penal Code. 2 People v. Harvey (1979) 25 Cal.3d 754. 1

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.