People v. O'Brien CA1/4

Filed 5/22/14 P. v. O’Brien CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A139571 v. MICHAEL LANDON O’BRIEN, JR., (Alameda County Super. Ct. No. C160471) Defendant and Appellant.

After revoking probation, the trial court sentenced defendant Michael Landon O’Brien, Jr. to an aggravated, four-year prison term for assault likely to produce great bodily injury (former Pen. Code,1 § 245, subd. (a)(1), now subd. (a)(4)). Defendant asserts the trial court abused its discretion when selecting an aggravated term. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND A. Original Offense and Conviction On November 9, 2008, around 4:30 p.m., Antwan Robinson went to defendant’s home.2 During the visit, defendant became upset because he believed Robinson was telling people that he and defendant had been involved in a sexual relationship in the past. The men argued. Defendant punched Robinson in the mouth and knocked him to the ground. Defendant knocked out one of Robinson’s front teeth. Robinson punched defendant in self-defense and fled to his residence where he called the police. As a result 1 All further undesignated statutory references are to the Penal Code. 2 Because defendant pleaded no contest to the original charge, the underlying facts of that conviction are taken from the 2009 probation report.

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of the attack, Robinson lost a tooth and suffered abrasions to his upper lip and to the side of his head. Robinson required surgery to repair the injuries to his mouth. On February 17, 2009, defendant pleaded no contest to a single count of assault, with the trial court dismissing the great bodily injury enhancement. On March 17, 2009, the trial court suspended imposition of sentence and placed defendant on five years’ probation. B. Probation Violation Four years later, in February 2013, while still on probation, defendant accosted another acquaintance, Dineah Taha, in her apartment. Defendant pulled Taha’s hair and forced her to the ground. As defendant yelled at Taha, another man pointed a gun at her. Both men kicked her legs, thighs, ribs, and buttocks. After demanding Taha’s cell phone and learning that it had not been activated, the men ran out of the apartment. Hearing Taha’s screams, a neighbor called the police. Taha waited at the neighbor’s apartment for the police to arrive. Taha also talked to the 911 operator from the neighbor’s cell phone. C. Probation Revocation and Sentencing Following defendant’s arrest, the district attorney moved to revoke defendant’s probation. At the June 2013 probation hearing, defendant was found to be in violation of his probation and the matter was put over for receipt of a supplemental probation report and sentencing. At the revocation and sentencing hearing in July 2013, the trial court stated that it had carefully reviewed the supplemental probation report, together with the original probation report. The original probation report indicated that defendant had an extensive arrest history in the state of Louisiana, spanning nearly a decade (1999 through 2008) for offenses including trespassing, possession of marijuana, domestic violence, vandalism, resisting arrest, obstruction of justice, distribution of marijuana, illegal use of controlled substances, inciting a riot, drug paraphernalia, discharging of a firearm, and armed robbery. The supplemental probation report stated that defendant had a conviction in Louisiana for felony armed robbery and aggravated battery. It was further noted that