People v. Felix CA2/6

Filed 10/22/15 P. v. Felix CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B262409 (Super. Ct. No. 1291688) Plaintiff and Respondent, (Santa Barbara County)

v.

ROBERT FELIX,

Defendant and Appellant.

Robert Felix appeals from an order terminating probation and ordering him to serve a 13 year four month state prison term on his 2009 conviction for assault 1 with personal use of a deadly weapon (Pen. Code, § 245, subd. (a)(1)) , possession of a deadly weapon (§ 12020, subd. (a)(1), and false imprisonment (§ 236) with three prison prior enhancements (§ 667.5, subd. (b)). Appellant claims that the trial court abused its discretion in not reinstating probation and in ordering him to serve the state prison sentence. We affirm. In 2009, appellant pled no contest to assault with a deadly weapon, possessing a deadly weapon and false imprisonment, and admitted that he had suffered three prison prior terms (§ 667.5, subd. (b)) and a prior serious felony conviction for robbery (§ 667, subd. (a)(1).) The prosecution dismissed the prior serious felony

1 All statutory references are to the Penal Code.

conviction for sentencing purposes. On September 30, 2009, the trial court sentenced appellant to 13 years four months state prison, suspended execution of sentence, and granted five years probation with jail and drug/alcohol terms. In 2013 and 2014, appellant violated probation on two occasions. The trial court reinstated probation and ordered appellant to serve additional jail time. In September 2014, appellant was charged with beating a man with a deadly weapon. (§ 245, subd. (a)(1); Super.Ct. Case No. 1471073.) At the preliminary hearing, the prosecution elected to treat the matter as a probation violation and dismissed the new charge. The trial court found appellant in violation of probation, terminated probation, and ordered appellant to serve the 13 year four month prison sentence previously imposed. Termination of Probation Appellant argues that the trial court abused its discretion in revoking and terminating probation. Section 1203.2, subdivision (a) authorizes the trial court to revoke probation if it has reason to believe that the person has violated a condition of his or her probation. (See People v. Rodriguez (1990) 51 Cal.3d 437, 443.) "Probation is not a matter of right but an act of clemency, the granting and revocation of which are entirely within the sound discretion of the trial court. [Citations.]" (People v. Pinon (1973) 35 Cal.App.3d 120, 123.) Only in a very extreme case will an appellate court interfere with the discretion of the trial court in revoking probation. (People v. Rodriguez, supra, 51 Cal.3d at p. 443.) The preliminary hearing evidence shows that appellant beat George Calderon with a metal object. Calderon was on the ground and held onto appellant's leg. Yajaira Alarcon saw appellant punch Calderon in the head 10 to 15 times and get a "stick" and stab Calderon "like everywhere." Before the police arrived, appellant walked over to a trash can, took his shirt off, and put another shirt on. A blood-stained shirt and metal file wrapped in a washcloth were found in the trash can. The metal file had blood on both ends.