P. v. Borg
Filed 4/26/13 P. v. Borg CA1/4
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opinion has not been certified for publication or ordered published for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,
v.
TYLER J.
BORG,
Defendant and Appellant.
A134306
(Sonoma
County
Super. Ct.
No. SCR506102)
Tyler
John Borg appeals from a judgment imposed following revocation of his
probation. He contends that the trial
court abused its discretion in imposing a previously suspended prison sentence
of eight years. We affirm.
On
April 17, 2007, defendant
pled no contest to one count of assault with a deadly weapon (Pen. Code,
245, subd. (a)(1)) and admitted the allegation that he inflicted great bodily
injury on the victim (§ 12022.7, subd. (b)). The factual basis for the plea stemmed from
defendant’s involvement in a fight with his brother. Defendant’s brother struck the windshield of
defendant’s car with a rake and fled to his car. As defendant’s brother was backing up his
car, defendant threw a large rock through the back window, striking the
brother’s girlfriend, who was seated in the passenger seat. The girlfriend was in a coma for one month, underwent
two brain surgeries, and remained in the hospital for two months. She endured months of therapy, numerous
procedures, and physical and emotional trauma.
On
June 14, 2007, the court
sentenced defendant to state prison for the aggregate term of eight years. It suspended imposition of sentence and
placed defendant on probation for three years on conditions including that he
serve one year in the county jail.
On February
4, 2010, defendant was charged in Case No. SCR-577810 with one
count of spousal abuse with a prior conviction of corporal injury on a
spouse. The incident involved an
argument between defendant and his then-wife in which defendant threw a
television remote control at his wife, striking her on the ankle which resulted
in a painful and large bruise.
Defendant’s wife threw the remote control at the television set and
shattered the screen. Defendant then
grabbed his wife around the throat and shoved her into the wall. A request to revoke probation based on the
spousal abuse allegation was thereafter filed.
On
March 2, 2010, defendant
pled guilty to a misdemeanor violation of spousal abuse. On April
2, 2010, the court sentenced defendant to 60 days concurrent on the
misdemeanor violation, extended his probation term an additional two years, and
imposed a term of seven months in the county jail. He was further ordered not to contact,
threaten or harass his wife.
On
September 10, 2010, a third
request to revoke probation was filed alleging that defendant violated the
probation condition that he have no contact with his wife. The probation department reported that
defendant had harassed his wife and had continued telephone and physical
contact with her in violation of probation.
A criminal protective order restraining defendant from contacting his
wife was entered on September 10, 2010. On February
10, 2011, defendant was reinstated on probation.
A
final request to revoke probation was filed on July 27, 2011, after defendant was involved in a traffic
collision in which he and his ex-wife
were injured. Defendant claimed he was
taking his ex-wife to the hospital when she grabbed the steering wheel and the
accident occurred. Defendant suffered a
concussion and a fractured neck.
Defendant’s ex-wife denied that she grabbed the wheel of the car and
claimed that they had gone shopping and to Taco Bell before the accident
occurred. She told the police that they
had argued because she told the defendant that she was seeing someone else.
On
August 22, 2011, defendant
admitted the probation violation. A
sentencing hearing was held on October
26, 2011; the court took the matter under submission.
On
November 18, 2011, the
court sentenced defendant to the previously suspended term of eight years in
state prison. The court found that
continuing defendant on probation would be inappropriate given defendant’s
numerous violations and extremely serious conduct. The court noted that the victim in the
underlying case continued to suffer ramifications from her injuries including
seizures. The court further found that
defendant had consistently shown a blatant disregard for court orders, and that
his current enthusiasm to meet the conditions of probation lacked credibility.
Defendant
contends that the trial court abused its discretion in sentencing him to serve
the previously suspended sentence of eight years.
The
court has discretion to revoke probation in the interests of justice when it
“has probable cause to believe that
the supervised person is violating any term or condition of his or her
supervision . . . .â€
(§ 1203.2, subd. (a).)
While the court’s discretion is very broad, the court may not act
arbitrarily or capriciously, and its determination must be based on the facts
before it. (People v. Angus (1980) 114 Cal.App.3d 973, 987–988.) A trial court’s decision is accorded great
weight on appeal, and it will not be reversed on appeal unless there is a
manifest abuse of discretion resulting in a miscarriage of justice. (Id. at
p. 988.)
Here,
defendant admitted that he violated the conditions of probation. The underlying conviction was a serious one
in which defendant caused the victim to suffer great bodily injury with
resulting complications including seizures she still endures. In addition, defendant continually violated
probation, including not only contacting his ex-wife, but violating other
conditions of probation including failing to complete community service hours
and not fully participating in a domestic violence program.
domestic violence program in July 2011, following reports that he acted
inappropriately during sessions with other group members, which reflected that
he was not taking the program seriously.
The
record thus fully supports the trial court’s exercise of discretion to deny
probation and order defendant to serve the previously imposed term. Probation is a privilege (see
608); defendant failed to abide by its conditions.
The
judgment is affirmed.
_________________________
Rivera,
J.
We concur:
_________________________
Reardon, Acting P.J.
_________________________
Humes, J.
name="_ftn1" title="">[1]
All further statutory references are to the Penal Code.
name="_ftn2" title="">[2] At
some point, defendant and his wife divorced.
