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Filed 3/28/16 P. v. Nelson CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Butte)

——

THE PEOPLE,

Plaintiff and Respondent,

v.

SHELLIE WAYNE NELSON,

Defendant and Appellant.

C079444

(Super. Ct. No. CM036288)

After defendant Shellie Wayne Nelson violated probation, the trial court revoked 

and declined to reinstate him on probation, and sentenced him to prison. Defendant 

contends the trial court erred in refusing to reinstate him on probation without first 

ordering an investigation of his mental capacity. We find no abuse of discretion and 

affirm the judgment.
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FACTUAL AND PROCEDURAL BACKGROUND

In April 2012, homeowners Ann Vastine and Donald Love arrived home and 

noticed the door to their truck was open. Vastine opened the front door to their home and 

heard a noise coming from the bedroom. Love and Vastine investigated and saw 

defendant, their friend, leaving through the back door with a jewelry box. After a brief 

chase, they detained defendant. When law enforcement searched defendant, they found a 

portable telephone that belonged to Love and Vastine. Ultimately, officers discovered 

defendant had also stolen a gas weed eater, an extension cord, and a bottle of liquor from 

Love and Vastine. 

Defendant pleaded no contest to first degree burglary (Pen. Code, § 459)1 and 

admitted the allegation that there was a person present other than an accomplice (§ 667.5, 

subd. (c)). The remaining counts were dismissed.

The probation report noted defendant had three prior felony convictions for 

possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), which 

rendered him ineligible for probation unless the trial court found it an unusual case. 

Defendant’s most recent felony conviction was in 2002. Defendant informed the 

probation department he was intoxicated when he committed the burglary, and stated he 

was an alcoholic who consumed a 12-pack daily. His prior criminal history also revolved 

around substance abuse. He had never participated in any treatment programs, but had 

been accepted into the Salvation Army program. The probation department 

recommended the trial court suspend imposition of sentence and grant defendant 

probation. 

At the 2012 sentencing, the trial court found the case to be an unusual case, 

because based on defendant’s intoxication the offense was substantially less serious than 

 

1 Undesignated statutory references are to the Penal Code.
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the circumstances typically present in other cases, and defendant had no recent record of 

committing similar crimes. The trial court also found the interests of justice would be 

served, as defendant has a serious addiction issue and there was a high likelihood he 

would respond favorably to treatment. Accordingly, the trial court suspended imposition 

of sentence and granted defendant probation. The trial court also advised defendant that 

given his record and the charges he was convicted of, “if there’s any screw ups, you’re 

going to prison.” Among the conditions of probation, defendant was required to enter 

and complete a residential substance abuse program, and not leave the facility without 

permission of the program staff and the court or probation officer. 

In July 2014, the probation department filed a petition for violation of probation 

alleging defendant had not reported to the probation officer since June 2014. In June 

2014, a probation officer contacted the rehabilitation center and learned defendant had 

been discharged from the program in August 2012. The probation department sent 

defendant a notice of probation violation and defendant failed to report to the probation 

department. Defendant admitted he violated probation by failing to report as directed. 

The trial court remanded defendant to the custody of the sheriff. 

Defendant indicated he left the rehabilitation center on his own, as he was not 

comfortable in the environment, it was “ ‘too far away from home,’ ” and he was 

“ ‘scared of drive[-]by shooting and gangs.’ ” When he returned to Butte County, he was 

homeless and did not know who to be in contact with from the probation department. He 

stayed with family and lived on the streets. Shortly before he was arrested, he found a 

place to live. He stated he wanted “ ‘to just do all of his sentence and be done with it.’ ” 

He did not want probation and did not think he could complete three years of probation. 

The probation department concluded it could not adequately supervise someone who did 

not make himself available for supervision, and given his lack of interest in being on 
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probation, recommended the trial court terminate probation and sentence defendant to 

prison.

Defendant requested another interview and informed the probation department he 

wanted to be reinstated on probation so he could seek help from a residential treatment 

program. He indicated he was now ready to follow through with probation and comply 

with the terms. He changed his mind because he had been thinking about it, knew he 

could do it, and being in jail was no fun. The probation department noted defendant had 

been given an opportunity to address his substance abuse issues and only 11 days in, 

chose to leave the program. He never attempted to contact the probation department or 

otherwise address his addiction issues. The probation department continued to believe it 

could not adequately supervise defendant, and he had proven either unwilling or unable 

to comply with the terms of probation. Accordingly, the probation department reaffirmed 

its earlier recommendation that defendant be denied probation. 

At the 2015 sentencing hearing, defense counsel argued defendant had stayed 

crime-free since leaving the rehabilitation program over two years earlier. He also 

indicated defendant’s aunt stated that defendant “has always been, for lack of a better 

term, a very slow learner, not a high-functioning individual.” Counsel also relayed a 

conversation he had had with defendant which he believed supported the aunt’s 

statements. Counsel had spoken with defendant about the probation report. Counsel 

asked if defendant had received and read the report and defendant indicated he had, but 

could not tell counsel what the report said or what the probation department was 

recommending. Counsel argued the bulk of defendant’s record was based on possession 

of controlled substances, and “[i]f he’s had some learning disabilities, that might explain 

why he didn’t necessarily stay in a program in Oakland.” He argued it was significant

that defendant could “abscond for about two years without picking up a new charge . . . .” 

Counsel noted defendant’s three prior felonies were for an offense that is currently a 
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misdemeanor. Accordingly, counsel felt the risk of granting defendant probation was 

low. 

The trial court read and considered all three probation reports and attachments, as 

well as counsel’s argument. The court reviewed the unusual case criteria in California 

Rules of Court, rule 4.4132 and did not find that this case met the criteria. Accordingly, 

the trial court denied probation. Moreover, the court found, even if defendant met the 

criteria, it would deny probation due to the nature, seriousness, and circumstances of the 

case. The trial court revoked probation and sentenced defendant to the middle term of 

four years in state prison, and imposed various fines and fees.

DISCUSSION

Defendant contends the trial court erred “by not ordering investigation of 

[defendant’s] mental capacity prior to imposing a four-year sentence in state prison.” 

Specifically, he contends the trial court should have considered whether the probation 

violation was committed because of a mental problem not amounting to a defense, under 

rule 4.413(c)(2)(B). Defendant also contends the trial court did not properly consider the 

fact that his probation violation was less serious than his first degree burglary conviction 

under rule 4.413(c)(1)(A). In essence, defendant urges us to reweigh all the relevant 

factors. That is not our task. Rather, we review the trial court’s decision for an abuse of 

discretion.

In this case, as a result of both his conviction for a residential burglary (§ 459) and 

his three prior felony convictions (§ 1203, subd. (e)(4)), defendant was presumptively 

ineligible for probation unless the trial court found it to be an “unusual” case where the 

interests of justice would be served by granting probation (§ 462, subd. (a)). The 

decision whether the case is “unusual” under these sections is within the discretion of the 

 

2 Further rule references are to the California Rules of Court.
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trial court, using the criteria set forth in rule 4.413. (People v. Superior Court (Du) 

(1992) 5 Cal.App.4th 822, 831.) Even if any fact listed in rule 4.413 exists, this does not 

necessarily show that the case is unusual; and, while the trial court may find it so, it is not 

required to do so. (People v. Stuart (2007) 156 Cal.App.4th 165, 178.) When the trial 

court initially finds an unusual case and grants probation and that probation is later 

revoked, the determination whether or not to reinstate defendant on probation rests within 

the broad discretion of the trial court. The defendant has a heavy burden when 

attempting to show an abuse of that discretion. A reviewing court will not disturb the 

trial court’s determination on appeal if that determination does not exceed the bounds of 

reason and is based on the court’s consideration of all the circumstances relevant to the 

offense and to the defendant. (People v. Downey (2000) 82 Cal.App.4th 899, 909-910; 

People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) The burden is on the defendant to 

show an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376; see People 

v. Superior Court (Du), supra, 5 Cal.App.4th at p. 831.) Defendant has not met that 

burden here.

Defendant attempts to meet his burden by arguing that at least two provisions of 

rule 4.413(c) apply here. Defendant’s argument is premised on his claim that in 

considering whether this was an unusual case, the trial court should have been 

considering the facts and circumstances of the probation violation, not the original 

offense. Defendant has misread the statutory provisions.

Defendant argues the “current offense—being in violation of probation for 

departing from the Salvation Army facility without proper discharge and not reporting to 

the probation officer in regards to his departure—was less serious than his subject 

conviction of first degree burglary.” As such, defendant asserts this brings his conduct 

within rule 4.413(c)(1)(A). The plain language of the rule refutes this claim, providing 

that a case may be considered unusual where “[t]he fact or circumstance giving rise to the 
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limitation on probation is, in this case, substantially less serious than the circumstances 

typically present in other cases involving the same probation limitation, and the 

defendant has no recent record of committing similar crimes or crimes of violence.” 

(Ibid., italics added.) Here, the limitation on probation was based on defendant’s having 

committed burglary. Thus, it is the facts or circumstances of the burglary and 

defendant’s multiple prior felony convictions, not the probation violation, the trial court 

had to assess in determining whether this was an unusual case.

Defendant’s argument about his mental condition limiting his culpability suffers 

the same infirmity. He contends defense counsel’s assertion that defendant “could not 

understand the initial probation report after reading it” raised the implication defendant 

was so mentally impaired he could not understand the conditions of probation. 

Defendant asserts that that brings his case within rule 4.413(c)(2)(B), which provides a 

defendant’s culpability may be reduced if “[t]he crime was committed because of a 

mental condition not amounting to a defense, and there is a high likelihood that the 

defendant would respond favorably to mental health care and treatment that would be 

required as a condition of probation” (italics added). The crime committed in this case 

was the burglary, not the probation violation. Moreover, defense counsel did not seek 

any additional evaluation of defendant’s mental condition, nor did defense counsel 

suggest defendant had violated probation because he had not understood the terms of his 

probation. Counsel’s statements to the trial court reporting a conversation with 

defendant’s aunt and his own conversations with defendant regarding the probation report 

fall far short of suggesting a mental condition that would respond favorably to mental 

health care and treatment, let alone overcome defendant’s presumptive ineligibility.

Even if defendant were correct, and there were facts falling within rule 4.413, the 

trial court would have been within its discretion to find that these facts did not show an 

unusual case. (People v. Stuart, supra, 156 Cal.App.4th at p. 178.) The trial court read 
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and considered three probation reports detailing defendant’s history and the facts and 

circumstances of the offense and the probation violation. The trial court listened to and 

considered further argument from counsel regarding defendant’s apparent learning 

disabilities, that he had gone for over two years on probation without any additional 

charges, and that he appeared to be a low risk to the public given his record. The trial 

court considered all the facts and evidence presented and found defendant did not meet 

any of the criteria set for in rule 4.413. Where, as here, the trial has considered all the 

facts and evidence, we cannot find an abuse of discretion.

DISPOSITION

The judgment is affirmed.

 BUTZ , J.

We concur:

 ROBIE , Acting P. J.

 RENNER , J.