California Court of Appeal Sep 26, 2016 No. D069887Unpublished
Filed 9/26/16 P. v. Hansen CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D069887
Plaintiff and Respondent,
v. (Super. Ct. No. SCN327970)
ANDRE HANSEN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Harry L.
Powazek, Judge. Affirmed.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C.
Taylor, and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Andre Hansen pleaded guilty to one count of arson of a
structure or forest. (Pen. Code,1 § 451, subd. (c).) The trial court suspended the sentence
for three years, granted formal probation, and committed Hansen to local custody for 365
days. After finding Hansen violated the terms of his probation, the court revoked his
probation and sentenced him to four years in prison. On appeal, Hansen asserts the trial
court abused its discretion in imposing a four-year prison term based on his probation
violations. Affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On August 2, 2013, Hansen set several brush fires in Oceanside. He was
apprehended nearby with a lighter in his hand, and police found cans of gasoline in his
backpack. Hansen pleaded guilty to the arson charge, and the court ordered formal
probation.
Hansen served in the Marine Corps from 2004 to 2008. Post discharge, he was
diagnosed with post-traumatic stress disorder (PTSD) and bipolar disorder; Hansen
received medication and medical treatment from the Veterans Administration (VA). He
regularly used marijuana and alcohol prior to his arson arrest.
Specific terms of Hansen's probation included "not knowingly us[ing] or
possess[ing] any controlled substance" and submitting to a Fourth Amendment waiver
search that included his "computers[] and recordable media . . . at any time with or
1 All further statutory references are to the Penal Code unless otherwise specified. 2
without a warrant, and with or without reasonable cause." Hansen was also ordered to
take his doctor-prescribed psychotropic medications.
While on probation, Hansen's probation officer alleged that he violated the terms
of his probation. Hansen presumptively tested positive for marijuana use, and his phone
contained messages that appeared to arrange a marijuana purchase. Hansen suggested he
was possibly using marijuana medicinally in place of his prescribed medications.
Additionally, Hansen refused to give his probation officer his Facebook password. The
record includes evidence that Hansen voluntarily elected not to take his medication for
his diagnosed psychological disorders and that he resisted giving his probation officer
direct access to his doctors and medical information.
Although the court acknowledged Hansen's arguments that he had been failed by
the criminal justice system and the VA, the court noted the key issue was whether Hansen
had complied with the terms and conditions of his probation. The court found
insufficient evidence to establish that Hansen had failed to take his prescribed
medications or that he had failed to provide his probation officer with access to his
doctors and medical information. However, the court also found that Hansen's marijuana
use and failure to provide his Facebook password were violations of his probation and
that the gravity of the underlying arson offense justified a four-year prison sentence.
DISCUSSION
Hansen contends the trial court abused its discretion when it revoked his probation
and sentenced him to four years in state prison.
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A. Governing Law
"Section 1203.2(a) states that a 'court may revoke . . . probation if the court, in its
judgment, has reason to believe that the [probationer] has violated any of the conditions
of . . . probation . . . or has subsequently committed other offenses . . . .' (Italics added.)
It has long been recognized that the Legislature, through this language, intended to give
trial courts very broad discretion in determining whether a probationer has violated
probation. (See, e.g., People v. Lippner (1933) 219 Cal. 395, 400 ['. . . only in a very
extreme case should an appellate court interfere with the discretion of the trial court in
the matter of denying or revoking probation. . . .'].)" (People v. Rodriguez (1990) 51
Cal.3d 437, 443 (Rodriguez).)
"Sentencing choices such as the one at issue here, whether to reinstate probation or
sentence a defendant to prison, are reviewed for abuse of discretion. 'A denial or a grant
of probation generally rests within the broad discretion of the trial court and will not be
disturbed on appeal except on a showing that the court exercised its discretion in an
arbitrary or capricious manner.' [Citation.] A court abuses its discretion 'whenever the
court exceeds the bounds of reason, all of the circumstances being considered.'
[Citation.] We will not interfere with the trial court's exercise of discretion 'when it has
considered all facts bearing on the offense and the defendant to be sentenced.' " (People
v. Downey (2000) 82 Cal.App.4th 899, 909-910 (Downey).) "[T]he burden of
demonstrating an abuse of the trial court's discretion rests squarely on the defendant."
(People v. Urke (2011) 197 Cal.App.4th 766, 773 (Urke).)
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B. Analysis
Hansen argues that his probation violations were minimal in nature and that other
more reasonable means existed whereby he could be supervised on probation without
posing a threat to society. He specifically contends the finding he was using marijuana
was based on insufficient evidence because he drank copious amounts of water before he
took the drug test and because the text messages where he appeared to arrange for the
purchase of marijuana were inconclusive and, at best, ambiguous. Additionally, he
contends his failure to provide his Facebook password to his probation officer was an
insignificant Fourth Amendment waiver violation that could have also been handled with
a more appropriate response than a prison sentence.
The People contend that the court properly exercised its broad discretion in
revoking Hansen's probation and sentencing him to prison. The People further contend
that Hansen responded to the court's clemency by using marijuana and resisting his
probation officer's request for his Facebook password so she could monitor his social
media activity; that he has not provided any authority whereby a court must give a
defendant an additional opportunity to abide by the terms of his or her probation; and,
most importantly, that the four-year prison sentence was not imposed solely because of
Hansen's marijuana use and Fourth Amendment waiver violation but also because of the
gravity of the underlying arson offense.
We agree with the People that Hansen was not sentenced to four years in state
prison only because he violated the terms of his probation but, rather, because he violated
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probation in connection with a serious offense. It can hardly be disputed, as Hansen
concedes, that lighting brush fires involves "conduct that could have presented a serious
danger to persons or property, particularly in drought[-]stricken California." Although
Hansen argues the probation violations were minimal, they were nonetheless violations.
(See Rodriguez, supra, 51 Cal.3d at p. 440 [noting the court may revoke probation if
there is reason to believe the defendant violated any of the conditions of probation].)
Hansen does not, nor can he, argue that he complied with all the terms and
conditions of his probation. The only reason he was on probation was because he
pleaded guilty to arson, and the trial court stayed a prison sentence in favor of supervised
probation as an act of leniency so that Hansen would have an opportunity to reform his
conduct. (See Urke, supra, 197 Cal.App.4th at p. 773 [noting trial court granted
probation so that the defendant could reform conduct with support and supervision of law
enforcement and medical professionals].)
The record indicates that the trial court considered all the facts regarding the arson
offense, Hansen's conduct while on probation, and how Hansen had been treated by the
VA and the criminal justice system when deciding whether to reinstate probation. Based
on the record, we conclude the court properly exercised its broad discretion when it found
that Hansen violated his probation terms and sentenced him accordingly. (See Downey,
supra, 82 Cal.App.4th at p. 909.)
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DISPOSITION
The judgment of conviction is affirmed.
BENKE, Acting P. J.
WE CONCUR:
NARES, J.
O'ROURKE, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not abuse its discretion in revoking the defendant's probation and imposing a four-year prison sentence following probation violations, given the gravity of the underlying arson offense.
Issues
Did the trial court abuse its discretion in revoking probation and imposing a prison sentence based on the defendant's probation violations?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the court properly exercised its broad discretion when it found that Hansen violated his probation terms and sentenced him accordingly.”