People v. Angus12/30/1980
COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION FOUR
Crim. No. 20472
1980.CA.40005 ; 171 Cal. Rptr. 5; 114 Cal. App. 3d 973
December 30, 1980
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
PAUL RAY ANGUS, DEFENDANT AND APPELLANT
Superior Court of Contra Costa County, No. 21479, E. Patricia Herron, Judge.
Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Deborah Long, Deputy State Public Defender, for Defendant and Appellant.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, William D. Stein and Stan M. Helfman, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Colvin, J., with Rattigan, Acting P. J., and Christian, J., concurring.
Colvin
Paul Ray Angus appeals from a judgment sentencing him to state prison following revocation of his preexisting probation. He contends (1) that the revocation and sentence constituted an abuse of the court's discretion and (2) that the sentence imposed improperly penalized him for demanding a revocation hearing.
Appellant was convicted, upon his guilty plea, of assault with a deadly weapon (Pen. Code, § 245, subd. (a)). On May 25, 1978, imposition of sentence was suspended and he was admitted to formal probation for five years upon several specified conditions. On May 22, 1979, upon the probation department's report and recommendation, the trial court by ex parte order revoked probation and ordered a bench warrant for appellant's arrest. Following a probation revocation hearing, on October 9, 1979, the trial court found that appellant had violated his probation and sentenced him to state prison. He filed a timely notice of appeal on November 7, 1979.
Facts
The essence of appellant's first contention is that the evidence did not warrant probation revocation or the prison sentence. He does not contest the admissibility of any of the documents or testimony presented to the trial court; this evidence contained a substantial number of pertinent facts.
A. The underlying conviction.
Appellant had been charged in February 1978 with two counts of aggravated assault (Pen. Code, § 245, subd. (a)), by an information which also alleged that he had suffered two prior felony convictions (for robbery and for possession of marijuana).
A probation report prepared in April 1978 indicates that the charges arose out of an incident at a bar: Appellant arrived late in the evening, apparently already drunk, and demanded and consumed three drinks in quick succession. When the bartender refused to serve him more alcohol, appellant reportedly threw a glass at the bartender (count two), knifed a customer (count one), and then was dragged out of the place by his companions.
At a pretrial hearing, appellant pleaded guilty to the knifing and admitted both priors. The plea was entered pursuant to a plea bargain for dismissal of the second count, and upon the condition that appellant be admitted to probation. The second count was dismissed.
B. Appellant's background.
The probation report reflects that appellant was a 28 year old with a noteworthy record of criminal (8 convictions including the 2 prior
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