People v. Hoppers CA2/6 ( 2021 )

Filed 9/20/21 P. v. Hoppers 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B307713
(Super. Ct. No. 19CR08851)
Plaintiff and Respondent, (Santa Barbara County)
v.
BRIAN TIMOTHY HOPPERS,
Defendant and Appellant.
Brian Timothy Hoppers appeals from the judgment
after the court sentenced him to three years in state prison.
Hoppers contends the trial court abused its discretion when it
denied his request for probation and sentenced him to the upper
term. We affirm.
FACTS AND PROCEDURAL HISTORY
Hoppers and R.M. were in a relationship for several
years. In June 2018, Hoppers was convicted of committing
battery against R.M. (Case No. 18CR02380). He was placed on
three years’ probation.
After their relationship ended, R.M. asked Hoppers
multiple times to stop contacting her, but he refused. Hoppers
contacted her several times a day. At times, he threatened to
hurt himself or leak nude photos of her to her family and
employer if she did not agree to meet with him. Between
November 2018 and October 2019, R.M. changed her place of
residence three times to evade Hoppers. Each time, Hoppers
would find out where she lived and show up at her door “almost
every day.” R.M. also changed her phone number four times, but
Hoppers would find her phone number and call or text her using
a different number. Hoppers also showed up at R.M.’s workplace
on four occasions. R.M. said she was “concerned for [her] safety.”
In September 2019, Hoppers was served with a criminal
protective order, which prohibited him from contacting R.M.
In January 2020, the Santa Barbara County District
Attorney charged Hoppers with four counts of various offenses
involving R.M. (i.e., stalking, prowling, domestic violence/
contempt of court, and dissuading a witness). In February 2020,
Hoppers pled guilty to one count of dissuading a witness (Pen.
Code,1 § 136.1, subd. (a)) and admitted a probation violation in
Case No. 18CR02380. The plea agreement provided that he
would return for sentencing on a later date. Hopper was released
pursuant to a Cruz2 waiver—he was informed that if he failed to
appear for sentencing or committed a new offense pending
sentencing, the court could impose any lawful sentence up to the
maximum of three years in state prison.
1 Further unspecified statutory references are to the Penal
Code.
2 People v. Cruz (1988) 44 Cal.3d 1247.
2
Hoppers violated the terms of the Cruz waiver. He
violated the protective order by contacting R.M., and was also
arrested for possession of methamphetamine.
Before the sentencing hearing, the trial court
considered Hoppers’s probation report. The report included his
criminal history, which included a 2009 conviction for possessing
a controlled substance (Health & Saf. Code, § 11350, subd. (a))
and driving under the influence (Veh. Code, § 23140, subd. (a)).
In June 2018, he was convicted of battery against R.M. and was
granted three years’ probation. The report noted that Hoppers
violated probation twice, and probation was reinstated after both
violations. In September 2019, he again violated probation, and
that violation was still pending. In September 2018, he was
convicted of shoplifting and was placed on three years’ probation.
He violated probation in that case twice.
The probation report also noted that while Hoppers
was in jail on the instant offense, he violated the protective order
on 15 separate occasions by attempting to call R.M. on the jail
telephone.
The probation report noted three factors in
aggravation: (1) Hoppers’s “prior convictions as an adult are
numerous or of increasing seriousness [Rule 4.421(b)(2)]”; (2) he
“was on probation when the crime was committed [Rule
4.421(b)(4)]”; and (3) his “prior performance on probation was
unsatisfactory [Rule 4.421(b)(5)].” No circumstances in
mitigation were listed.
The court denied probation. The court stated that it
had “absolutely no faith that [Hoppers] will be able to follow the
terms of probation and stay away from drugs and stay away from
the complaining witness in this case.” The court found that
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Hoppers was “obsessed” with R.M. and noted that he blamed
R.M. for violating the no-contact order. The court emphasized
Hoppers’s past incidents of domestic violence with R.M., his
behavior of “stalking” her, and his inability “to abide by [the] no-
contact terms” as reasons to deny probation.
The court imposed the upper term of three years.
The court stated: “And as far as the upper term is concerned, I’m
going to find that the factors in aggravation, as set forth in the
probation report, the additional factors in aggravation given your
conduct post-release, with the full understanding that you were
to have no contact and not to take drugs, outweigh the factors in
mitigation. Probation listed no factors in mitigation.”
DISCUSSION
Hoppers contends the trial court erred when it denied
probation and sentenced him to the upper term of three years.
He contends the court should have instead ordered treatment
such as a mandatory batterer’s program on probation. His
contentions lack merit.
“‘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.’ [Citation.]” (People v.
Downey (2000) 82 Cal.App.4th 899, 909-910.)
The trial court did not abuse its discretion. Hoppers
demonstrated his inability to follow the terms of probation—his
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prior performance on probation was unsatisfactory; he was on
probation when he committed the instant offense; and he violated
the terms while released pending sentencing. The court also
properly reasoned that Hoppers would not likely be successful on
probation as he demonstrated he was still “obsessed” with R.M.
Notably, he could not comply with the no-contact order, continued
to stalk her, and continued to blame her for his violations of the
no-contact order. Under these circumstances, the court properly
denied probation.
The trial court also did not err when it imposed the
upper term of three years in state prison. “When a judgment of
imprisonment is to be imposed and the statute specifies three
possible terms, the choice of the appropriate term shall rest
within the sound discretion of the court.” (§ 1170, subd. (b).) The
sentencing judge “may consider circumstances in aggravation or
mitigation, and any other factor reasonably related to the
sentencing decision. The relevant circumstances may be obtained
from the case record, the probation officer’s report, other reports
and statements properly received, statements in aggravation or
mitigation, and any evidence introduced at the sentencing
hearing.” (Cal. Rules of Court, rule 4.420(b).) “The court shall
state the reasons for its sentence choice on the record at the time
of sentencing.” (§ 1170, subd. (c).) In selecting an appropriate
term, the court has “‘wide discretion in weighing aggravating and
mitigating factors.’” (People v. Avalos (1996) 47 Cal.App.4th
1569, 1582.) “A single factor in aggravation will support
imposition of an upper term.” (People v. Carron (1995) 37
Cal.App.4th 1230, 1241.) We will affirm the court’s decision
unless there is a clear showing the sentencing choice was
arbitrary or irrational. (Avalos, supra, at p. 1582.)
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Here, the trial court did not abuse its discretion. The
probation report identified three aggravating factors (i.e., his
criminal history, that he was on probation when he committed
the instant offense, and his unsatisfactory performance on
probation) and no mitigating factors. (See Cal. Rules of Court,
rule 4.421(b)(2), (4), and (5).) The court also properly relied upon
Hoppers’s post-release conduct, including his repeated violations
of the protective order and drug possession. The trial court
clearly acted within its proper discretion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
YEGAN, Acting P. J.
PERREN, J.
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James E. Herman, Judge
Superior Court County of Santa Barbara
______________________________
Richard B. Lennon, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Steven D. Matthews and J. Michael
Lehmann, Deputy Attorneys General, for Plaintiff and
Respondent.