People v. Hebert CA2/6 ( 2021 )

Filed 4/21/21 P. v. Hebert 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B303767
(Super. Ct. No. 18F-07714)
Plaintiff and Respondent, (San Luis Obispo County)
v.
TYRELL PAUL HEBERT,
Defendant and Appellant.
Tyrell Paul Hebert appeals the judgment entered after a
jury convicted him of inflicting corporal injury on a spouse or
cohabitant (Pen. Code,1 § 273.5, subd. (a); count 1), misdemeanor
cruelty to a child (§ 273a, subd. (b); count 2), and attempted
criminal threats (§§ 422, subd. (a), 664; count 3). The trial court
suspended imposition of sentence and placed appellant on four
years probation with terms and conditions including that he
serve 240 days in county jail. Appellant contends the court
1 All statutory references are to the Penal Code.
abused its discretion in denying his motion to reduce counts 1
and 3 to misdemeanors pursuant to section 17, subdivision (b)(3).
We affirm.
FACTS AND PROCEDURAL HISTORY
Appellant and Jane Doe began dating in 2015 and
subsequently had a child together. On August 2018, appellant
and Doe were living together in Atascadero with their two-year-
old daughter, Doe’s 12-year-old daughter K., and appellant’s
three children from a prior relationship. That morning, Doe
called 911 and reported that “[my] boyfriend . . . stormed in[to]
my house, hit me, [and] threw me to the ground.” Doe also said
that appellant had just left in his van. When asked for
appellant’s name, Doe began crying, said “nevermind[,] I’m fine,”
and hung up.
Atascadero Police Officer Ronnie Overacker was dispatched
to Doe’s residence to investigate. Doe told Officer Overacker that
she and appellant had gotten into an argument the prior evening.
That morning, appellant became upset and threw a video game
console out the window, poured water on Doe’s laptop computer,
and ransacked their bedroom. Appellant left the house and Doe
“locked the door and said you need to go and calm down for a
little bit.”
Appellant re-entered the house through a window, woke up
his three eldest children, and said “let’s go.” Doe asked appellant
to give her the keys to a vehicle they had recently purchased with
her money. Appellant replied “no[,] fuck you” and pushed Doe,
causing her to fall on a couch. Doe asked, “this is how you are
going to act in front of the children?” Appellant punched her in
the legs with his fists and stepped on her toes. Doe stood up,
grabbed a toolbox in an attempt to block appellant from
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continuing to assault her, and told appellant to stop. The
children “were right there and he just was yelling and . . .
swinging” his fists at Doe. Appellant grabbed Doe’s neck, threw
her to the ground, and held by her by the throat as he said “don’t
fuck with me. You’re going to see what’s going to happen.”
Appellant eventually let go of Doe and left in his van with his
three eldest children. As a result of the assault Doe suffered
injuries to her foot, collarbone, elbow, and ribs.
K., who witnessed the altercation, testified and gave a
virtually identical account of the incident. K. added that when
appellant pushed Doe onto the couch, Doe’s elbow struck K.’s hip.
K. was crying and tried to prevent appellant from continuing to
assault Doe. Appellant and Doe’s two-year old daughter, who
was also present, was crying and screaming “stop.”
The day after the incident, Doe woke up and noticed that
the vehicle she had recently purchased was missing. When Doe
returned home from work later that day, she discovered that the
residence had been broken into and ransacked. Food was strewn
everywhere, her clothes were cut up and stuffed in the garbage
disposal, and her shoes were thrown away. Other clothing, shoes,
pictures and books had been thrown in the bathtub and some
type of oil had been poured on them. Her desktop computer was
smashed, and her laptop computers were missing. All of the
items belonging to appellant’s three eldest children were gone.
“I’m going to kill you” was written on a mirror in Doe and
appellant’s bedroom.
Prior to sentencing, appellant filed a motion to reduce
counts 1 and 3 to misdemeanors pursuant to section 17,
subdivision (b)(3). Appellant contended among other things that
the motion should be granted because he had no prior criminal
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history, reducing his convictions to misdemeanors would not
impact public safety, and felony convictions would negatively
impact his ability to gain employment in the future. Appellant
also disputed that the inflicting of corporal injury involved great
violence or bodily harm, which was identified in the probation
report as a factor in aggravation.
After indicating it had read and considered the probation
report, Doe’s victim impact statement, and appellant’s written
motion, the court stated: “I appreciate . . . the impact of a felony
conviction on [appellant’s] ability to work. . . . [T]here was a
17(b) motion made after the preliminary hearing, which I heard
. . . [and] denied. But this case went to a jury, there were
instructed on all the lesser included offenses, and all 12 of them
concluded that [appellant] had violated 273.5(a) as a felony and
the . . . attempted 422 as a felony.”
The court continued: “I appreciate that [appellant] has a
limited criminal history and that he’s always been to court and
that his demeanor has always been professional. I have no issues
with how he conducted himself here in the courtroom. The
challenge I have, though, . . . [is that] I heard the testimony from
Jane Doe. There was a 12-year-old girl . . . who also testified.
She’s the victim on Count 2 . . . . I recall testimony that there
were hands put on the neck. I would agree that the injuries
weren’t as egregious as I’ve seen in other cases, but the incidents
in question all occurred in front of children, and I believe a child
as young as two years old.” The court added: “I know that at
some point . . . [appellant] can petition the court for a 17(b)
reduction, depending on how well he does on probation, and
based on what you’re telling me, it sounds like he is taking this
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matter very seriously and he’s already enrolled in classes and has
taken some classes already.”
The prosecutor responded that appellant’s lack of a prior
criminal history was not particularly meaningful because Doe
indicated that appellant had abused her in the past. The
prosecutor also argued that the facts of the offenses were
sufficient to warrant felony convictions. The prosecutor went on
to note: “The only thing that changed between what the Court
heard at [the] prelim and at trial is Jane Doe’s explanation as to
why she minimized what had happened. And she had indicated
[at trial] that everything she told [the] officer . . . was true, so
only more evidence to support what had happened came out at
trial. So, I believe that this Court in properly denying the 17(b)
at [the] prelim[inary] only has more evidence to justify denying a
17(b) at this point.” The court proceeded to deny the motion.
DISCUSSION
Appellant contends the court abused it discretion in
denying his motion to reduce counts 1 and 3 to misdemeanors.
We disagree.
Section 17, subdivision (b), provides: “When a crime is
punishable, in the discretion of the court, either by imprisonment
in the state prison or imprisonment in a county jail under the
provisions of subdivision (h) of Section 1170, or by fine or
imprisonment in the county jail, it is a misdemeanor for all
purposes under the following circumstances: [¶] . . . [¶] (3) When
the court grants probation to a defendant [without imposition of
sentence] and at the time of granting probation, or on application
of the defendant or probation officer thereafter, the court declares
the offense to be a misdemeanor.”
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Trial courts possess broad discretion in determining
whether to reduce a “wobbler” to a misdemeanor pursuant to
section 17, subdivision (b). (People v. Bonilla (2018) 29
Cal.App.5th 649, 660-661.) The factors relevant to this inquiry
“may include those relevant to sentencing decisions, such as the
circumstances of the offense, the defendant’s appreciation of and
attitude toward the offense, and the defendant’s character as
evidenced by the defendant’s behavior and demeanor at the trial.”
(People v. Mullins (2018) 19 Cal.App.5th 594, 611.) A trial court
abuses its discretion “if it relies upon circumstances that are not
relevant to the decision or that otherwise constitute an improper
basis for decision.” (People v. Sandoval (2007) 41 Cal.4th 825,
847.) Our review of such decisions is highly deferential.
Appellant bears the burden of showing that the court’s decision
was irrational or arbitrary, and in the absence of such a showing
the decision will not be disturbed on appeal. (Bonilla, at p. 661.)
Appellant contends the challenged order was an abuse of
discretion because “[i]t is clear from the record . . . that the trial
court did not appreciate the power to grant [the motion] based
upon the erroneous finding that the jury found appellant guilty of
felony offenses.” We are not persuaded. When considered in
context, the court’s comments merely reflect its understanding
that the grounds for denying the motion brought at sentencing
were even stronger than the grounds for denying the motion
brought at the conclusion of the preliminary hearing. As the
prosecutor noted, Doe’s testimony at trial was significantly more
damaging to appellant’s position than her testimony at the
preliminary hearing.
Moreover, the court’s additional comments make clear its
understanding that it had the discretion to grant the motion
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notwithstanding the jury’s verdicts. In arguing to the contrary,
appellant minimizes the seriousness of the offenses as well as
their impact on Doe and the two young children who witnessed
the assault. Appellant also avoids any mention of the probation
report, which indicates that he had not accepted responsibility for
his actions and “did not exhibit any guilt or remorse regarding
the matter or the victim.” Because appellant has failed to meet
his burden of proving that the court’s decision to deny his motion
was irrational or arbitrary, his claim that the ruling amounts to
an abuse of discretion also fails. (People v. Mullins, supra, 19
Cal.App.5th at p. 612.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
YEGAN, J.
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Hernaldo J. Baltodano, Judge
Superior Court County of San Luis Obispo
______________________________
Earl E. Conaway, III, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and Lindsay Boyd, Deputy Attorney General,
for Plaintiff and Respondent.