Filed 4/7/15 P. v. Hall 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B256624
                                                                            (Super. Ct. No. 1463429)
     Plaintiff and Respondent,                                               (Santa Barbara County)

v.

ROBERT VICTOR HALL,

     Defendant and Appellant.



                   Robert Victor Hall appeals an order granting formal probation with terms
and conditions following his nolo contendere plea to felony vandalism. (Pen. Code,
§ 594, subd. (b)(1).)1 We affirm.
                               FACTUAL AND PROCEDURAL HISTORY
                   On May 14, 2013, a felony complaint charged Hall with vandalizing the
windows in his former girlfriend's apartment and vehicle. On August 26, 2013, the trial
court held a preliminary examination during which two Lompoc police officers and Hall
testified.
                   Evidence at the preliminary examination established that Lydia Ybarra and
Hall were formerly in a romantic relationship and had a child together. Hall "had
problems accepting that they were no longer a couple." He visited Ybarra in the late
evening of April 12, 2013, and demanded entry into her apartment. When Ybarra

1
    All further statutory references are to the Penal Code.
refused, Hall broke several apartment windows. Frightened, Ybarra telephoned for police
assistance.
              Neighbors saw Hall break Ybarra's apartment windows with a hammer and
they threatened to call the police. Hall then broke the windshield and a side window in
Ybarra's vehicle before leaving the apartment complex.
              On April 19, 2013, Lompoc Police Detective Mark Powell interviewed Hall
who admitted breaking Ybarra's windows. Hall stated that he "had anger issues" and
would seek "anger counseling."
              Hall testified that Ybarra took his personal belongings and would not return
them. He was frustrated, "fed up," and "took [his] frustration out on her car." Hall also
stated that he had been drinking that evening and the "'stupid' light bulb in [his] head
went off." He added that he paid restitution for the damaged windows and obtained
counseling for his anger problems.
              Following receipt of evidence, the trial court declined to reduce the felony
vandalism charge to a misdemeanor pursuant to section 17, subdivision (b). The court
then decided the evidence was sufficient to hold Hall to answer for felony vandalism.
              On November 13, 2013, Hall pleaded nolo contendere to felony vandalism.
In his handwriting, Hall stated that the trial court could sentence him as a felon or reduce
his sentence to a misdemeanor according "to what is just and appropriate." Prior to
accepting Hall's plea, the trial judge stated his "intention to reduce this matter to a
misdemeanor at the sentencing hearing if things line up the way I think they are going to
line up. That is to say community support, the victim comes in and says she . . . doesn't
mind it getting reduced from a felony. But most importantly that we understand each
other, Mr. Hall. I'm not going to tolerate any nonsense like this in the future from you,
and I'm not going to tolerate any alcohol from you while on probation . . . ."
              On December 18, 2013, the trial court held a sentencing hearing during
which Hall's character witnesses and Ybarra testified favorably to Hall. Ybarra said she
was no longer concerned about her safety. Hall had paid full restitution. The trial judge
noted that Hall "basically pled open . . . to the felony with a possibility of reducing it to a

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misdemeanor." The judge noted that he had observed Hall's interaction with his attorney
and stated that Hall "has trouble dealing with his emotions," "exactly the conduct that got
him in trouble," and that Hall needs "very extensive counseling." The judge then
commented on Hall's "trouble[some]" response to Ybarra's sentencing testimony. The
judge decided that instead of reducing the matter to a misdemeanor at that time, he would
retain the matter as a felony for sentencing: "When Mr. Hall finishes the 52-week
batterers intervention program, I will reduce it to a misdemeanor. . . . That's his ticket to
get this matter reduced."
              The trial court then continued the sentencing hearing several times. At the
hearing of March 14, 2014, the trial judge stated that Hall appeared to have consumed
alcohol prior to the hearing ("smelling of alcohol on [his] breath that's noticeable"). On
April 21, 2014, Hall moved to withdraw his plea pursuant to section 1018, claiming that
the victim's testimony and that of his character witnesses supported a reduction of the
charge to a misdemeanor, as suggested earlier by the court. The court denied the motion,
suspended imposition of judgment, and granted Hall three years formal probation with
various terms and conditions, including attendance at a domestic violence counseling
program.
              Hall appeals and contends that the trial court breached the plea agreement
by not reducing the offense to a misdemeanor. The court granted Hall a certificate of
probable cause regarding appeal of the legality of his plea. (§ 1237.5.)
                                       DISCUSSION
              Hall argues that the trial court abused its discretion by not permitting him to
withdraw his plea based upon an asserted breach of the plea agreement. (People v.
Walker (1991) 54 Cal.3d 1013, 1024 [all parties must abide by the terms of a plea
agreement], disapproved on other grounds by People v. Villalobos (2012) 54 Cal.4th 177,
183.) He points out that Ybarra testified favorably at sentencing and supported reduction
of the offense to a misdemeanor. Hall contends that completion of a domestic violence
counseling program is an additional requirement that breaches the plea agreement.


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              It appears that Hall may have reasonably believed that at the time of
sentence the judge would make his sentencing decision, but instead the judge added a
new requirement and continued the sentencing hearing. This standing alone could well
provide a basis for setting aside the plea. But the judge observed Hall's behavior at the
sentencing hearing, his interaction with his attorney, and his reactions to Ybarra’s
testimony. The trial judge remarked that Hall “has a temper.” Indeed, the nature of
Hall's offenses flowed from that temper. Under these circumstances, the judge acted
within his discretion to continue the sentencing hearing and add the condition that Hall
attend anger management classes. Hall's behavior in court led the court to make a fair
and reasoned decision to continue the sentencing hearing. Hall, in essence, sabotaged his
chances of receiving the misdemeanor sentence he hoped for. The judge made no
promise that the matter would be reduced to a misdemeanor.
              Prior to accepting the plea, the trial court informed Hall that the reduction
to a misdemeanor was only "a strong likelihood" if Hall "stay[ed] out of trouble" and did
not use alcohol ("[A]ll bets are off [with alcohol consumption])." Hall's attorney stated
that "[t]here are no promises, and Mr. Hall understands that completely." Hall's attorney
also stated that he had explained possible sentencing outcomes to Hall, including a three-
year prison term for a felony conviction. The court did not promise to reduce the
conviction to a felony without imposition of any conditions. (People v. Martin (2010) 51
Cal.4th 75, 79 [defendant's sentence must be within negotiated terms of plea agreement
as approved by trial court].) As stated in a different context, "'"[t]he umpire ain't ruled
until he's ruled."'" (People v. Delgado (1993) 16 Cal.App.4th 551, 555, quoting baseball
great Yogi Berra.)
              The trial court properly considered Hall's behavior in the courtroom -- his
emotional state during Ybarra's testimony at sentencing and his consumption of alcohol
prior to attending the continued sentencing hearing. Hall's behavior occurred despite the
court's earlier warnings that Hall should refrain from all alcohol use.
              To the extent Hall challenges the probation condition of domestic violence
counseling, it is a reasonable condition of his probation. (People v. Rodriguez (2013) 222

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Cal.App.4th 578, 585 [trial court has broad discretion to impose probation conditions that
generally relate to defendant's criminal conduct or future criminality].) The trial court's
decision to sentence Hall's offense as a felony is neither unreasonable nor arbitrary and it
falls within the court's broad discretion. (People v. Sy (2014) 223 Cal.App.4th 44, 66.)
              The order is affirmed.
              NOT TO BE PUBLISHED.




                                           GILBERT, P.J.
We concur:



              YEGAN, J.



              PERREN, J.




                                              5
                                Rogelio R. Flores, Judge

                       Superior Court County of Santa Barbara

                           ______________________________


             Richard B. Lennon, under appointment by the Court of Appeal, for
Defendant and Appellant.


             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Yun K. Lee,
Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.




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