Filed 12/4/15 P. v. Nelson CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR


THE PEOPLE,                                                             B259730


         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No.GA091321)

         v.


GUY HERSHELL NELSON,


         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Teri
Schwartz, Judge. Affirmed.
         Roberta Simon, 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, Assistant Attorney General, Susan Sullivan Pithey and
Andrew S. Pruitt, Deputy Attorneys General, for Plaintiff and Respondent.
                                     INTRODUCTION
       Defendant Guy Hershell Nelson pleaded no contest to felony charges of vandalism
and petty theft. The trial court delayed sentencing and released defendant on his own
recognizance (O.R.) to attend a drug rehabilitation treatment program. Defendant
enrolled in one treatment program, but almost immediately left the program, and returned
to it under the influence of methamphetamine. He left treatment two more times, and
eventually was terminated from the program for failing to comply with its requirements.
The trial court revoked defendant’s O.R. release and sentenced defendant to prison.
       Defendant argues that that trial court abused its discretion by not giving him an
additional chance to complete treatment. We hold that the trial court did not abuse its
discretion and affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       On the evening of October 23, 2013, Barbara Carrillo was sitting on the front
porch of her house when she heard one terrified scream, and then a second, closer
scream. She witnessed defendant running across the sidewalk, and when she got up to go
inside the house, defendant began running toward her. Scared, Ms. Carrillo went inside
and she and her two brothers closed and bolted the front door. Defendant broke through
the front window, headfirst, shattering one pane of the window and cracking another
pane. With the screen covering defendant as he pushed his way through the window
headfirst, Ms. Carrillo testified, “[I]t looked like . . . my window was giving birth. . . . It
was really terrifying.” Defendant grabbed a mobile phone from the couch in the living
room, and began frantically moving through the house, turning off the lights, saying,
“Call the police, call the police. They’re after me. They’re going to get me.” He
appeared to be very scared. One of the brothers retrieved a handgun and pointed it at
defendant, telling him to “freeze.” Defendant then climbed onto the kitchen sink and
exited the house by breaking headfirst through another window. The entire encounter
lasted only a few minutes. The mobile phone defendant took from the couch was found
the following day in a neighbor’s yard.

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       The District Attorney charged defendant with felony vandalism under Penal Code
section 594, subdivision (a)1 (count 1) for damage to the windows, and felony petty theft
by a registered sex offender (§666, subd. (b)) (count 2) for taking the mobile phone. The
information also alleged that defendant previously had been convicted of two “strikes”
under the Three Strikes Law (§§ 667, subd. (d) and 1170, subd. (b)) and had served one
prior prison term under section 667.5.
       On the day trial was scheduled to begin, defendant told the court he was interested
in attending a drug treatment program. The trial court agreed that defendant was a good
candidate for treatment: “[I]f he wanted to do the program, I would take a plea and give
him no more than 32 months. But quite candidly, if he did the program and successfully
completed the program, I don’t think Mr. Nelson is necessarily deserving of actually
going to state prison.” The court added, “As long as he is getting treatment, I’m happy to
continue the sentencing.”
       Defendant pleaded no contest to the charges, and admitted the prior strikes and
prison term allegation. The trial court ordered defendant conditionally released to a
treatment program, telling defendant, “[T]hat’s going to be as a condition of your O.R.
release.” The court went on to say, “I want you to understand that you need to comply.
You need to do what the program tells you to do. You can’t leave the program for any
reason. You have to participate in the program. And you can’t use any drugs or
alcohol.” The court continued, “[I]f I find out that you have been kicked out and then
you don’t come to court, I’m going to have to issue a warrant for your arrest. And once I
get you into court, you’re just going to go to state prison.” Defendant asked, “For how
long?” The court replied, “32 months.” Defendant answered, “Oh, okay.”
       Defendant was admitted to a residential treatment program on June 5, 2014. He
left the facility on June 6, and returned the following day under the influence of
methamphetamine. He was placed in a hospital for supervision, where he stayed until


       1
           All further statutory references are to the Penal Code unless otherwise indicated.
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June 11. He again left treatment on June 13, and was discharged from the program on
June 17. The trial court noted that defendant had been discharged from the program, and
issued a bench warrant on June 23. However, the trial court recalled and quashed the
bench warrant on June 30, after Defendant returned to treatment on June 25. Defendant
again left treatment on July 2. On September 3, the trial court issued a bench warrant and
defendant subsequently returned to court on September 22, 2014.
       The trial court held a sentencing hearing on September 25. The court noted that
defendant “was not able to fulfill his obligation to do a program.” The court said it would
impose the previously discussed sentence of 32 months, “because . . . it does not appear
to me . . . that [defendant] can be supervised other than in state prison.” Defendant’s
counsel urged further leniency, saying, “[T]here were bed bugs at issue with the first
program and he left. And he immediately went to a second program, but then had issues
with his funding there.” Counsel added that defendant “has some paranoia issues” and
“is irrationally scared of the court,” so he “did not make the decision to come in and
speak to the court because he was afraid.” Counsel said defendant “would like the
opportunity to find himself an appropriate program that he believes he can stay in for the
year that the court would like.”
       The court rejected defendant’s arguments and proceeded to sentencing. The court
dismissed one of defendant’s prior strikes and the prison term prior pursuant to section
1385. It sentenced defendant to a term of 32 months on count 2 (petty theft), calculated
as the low term of 16 months, doubled pursuant to defendant’s previous strike. The court
sentenced defendant concurrently on count 1 (vandalism) to the low term of 16 months,
doubled pursuant to the strike. The sentence on count 1 was ordered stayed pursuant to
section 654. The court awarded defendant 464 days of custody credit, calculated as 232
days of custody and 232 days of good time/work time credit. The court also ordered
defendant to pay various fines and fees, including restitution to the victims.
       Defendant timely appealed.



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                                       DISCUSSION
       Defendant argues that the trial court should have afforded him an additional
opportunity to attend a drug treatment program. The parties agree that in general, a trial
court has “broad discretion to impose reasonable conditions of OR release.” (In re York
(1995) 9 Cal.4th 1133, 1145.) The California Constitution, article 1, section 12,
subdivision (c), provides in part: “A person may be released on his or her own
recognizance in the court’s discretion.” A court acts within its discretion “unless its
decision is so irrational or arbitrary that no reasonable person could agree with it.”
(People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
       Defendant argues that “[t]he issue is not whether the court abused its discretion in
originally releasing [defendant] on O.R., or giving him certain conditions for O.R.
[Defendant’s] argument is that it cannot be said that the trial court reached an impartial
decision in not following through with its earlier determination when [defendant] did not
initially meet the court’s condition.” In short, defendant argues that he “should have been
given another chance to succeed.”
       The trial court gave defendant ample opportunities to succeed. Defendant is a
registered sex offender with two prior strike convictions. He pleaded no contest to two
felonies that involved bizarre behavior and terrified innocent victims in their home. The
trial court was not required by any authority to delay sentencing, but nonetheless offered
defendant an opportunity to attend a treatment program instead of going to prison.
       Defendant left treatment three different times. The second time, the court issued a
bench warrant but recalled and quashed it when defendant returned to treatment,
providing defendant with another chance to complete treatment despite his failure to
comply with the requirements of his release. Defendant argues that he should have been
given yet another opportunity to comply, but we see no error with the court’s conclusion
that defendant was unable to comply with the conditions of his O.R. release. “‘The
burden is on the party attacking the sentence to clearly show that the sentencing decision



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was irrational or arbitrary.’” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968,
977-978.) Defendant has not met that burden here.
       Defendant also argues that the trial court abused its discretion by sentencing
defendant to prison rather than probation. He contends that the initial release was akin to
probation: “[T]he court below presumably found this to be a case of unusual
circumstances warranting a grant of probation, perhaps in implied consideration of the
factors set forth in rule 4.413 of the California Rules of Court. That’s why the court
made the offer it did.” According to defendant, “[T]he judge should have stuck with her
earlier and entirely appropriate resolve” rather than sentencing defendant to prison.
       This argument directly contradicts the record. The court held that defendant was
not eligible for probation: “I am going to deny probation. Mr. Nelson, because of the
strike offenses, does not appear to be eligible nor is he suitable for a grant of probation.”
(See § 1170.12, subd. (a)(2).) There is no support for defendant’s argument that the court
found probation to be appropriate, either before or after sentencing defendant to prison.
                                      DISPOSITION
       The judgment is affirmed.
                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


                                        COLLINS, J.


We concur:


EPSTEIN, P. J.


WILLHITE, J.




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