People v. Mitchell
| Decision Date | 16 November 1981 |
| Docket Number | Cr. 13119 |
| Citation | 125 Cal.App.3d 715,178 Cal.Rptr. 188 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Jerome MITCHELL, Defendant and Appellant. |
Darlene Weinhold, Fullerton, for defendant and appellant.
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Jay M. Bloom and Bernard A. Delaney, Jr., Deputy Attys. Gen., for plaintiff and respondent.
Jerome Mitchell, an alcoholic, was convicted of petty theft with a prior conviction of petty theft (Pen.Code, §§ 488/666) 1 and sentenced to a suspended three-year aggravated term. Probation conditions included his promise to abstain from the use of intoxicating beverages, undertake a program of antibuse, not to violate the laws of the State of California, etc.; and to report as directed by the probation office. He attacks the validity of violating his probation for failing to abide by the alcohol-related conditions, claiming his "disease" insured non-compliance.
On December 4, 1979, the date Mitchell appeared for sentencing on this charge, he was presently serving a year in custody on a drunk driving matter in Camp Viejas, where he was undergoing alcohol rehabilitation. During sentencing, Mitchell asked the court for probation and to be allowed to remain in the Camp Viejas alcohol treatment program. The sentencing court asked Mitchell if he understood the above conditions, and others, and he personally assured the court he fully understood them. More than that, he specifically and personally agreed to accept the grant of probation and to abide by each condition. Having obtained the beneficent result for which he importuned the court, he did not appeal the order. However, he now appeals from an order more than one year later revoking probation and committing him to state prison.
The number and variety of criminal charges arising from Mitchell's conduct in the short time between his release from Camp Viejas and the date of his current sentencing, both before being charged with probation violation and while on bail pending sentencing, is amazing. However, it seems clear Mitchell's initial probation violation resulted from his using alcohol, perhaps in celebration of his release from Camp Viejas, and being apprehended drunkenly driving on a public highway.
The only factor stated by the trial court for revocation of probation is Mitchell's numerous violations of the condition requiring him to totally abstain from the use of alcohol. However, testimony at the revocation hearing substantially shows one instance of driving under the influence of alcohol (Veh.Code, § 23102), a separate incidence of drunk in public (§ 647, subd. (f)), another incident of resisting arrest (§ 148), an incident of trespassing (§ 602, subd. (n)), and an additional arrest for drunk in public (for a litany of other offenses, see decision in 4 Crim. 13228, filed this date).
Mitchell unmeritoriously raises several supposed sentencing errors during the original sentencing. He mistakenly claims error because the sentencing judge specified any term of imprisonment whatsoever when suspending imposition of sentence. However, imposition of sentence was not suspended, merely its execution. There was no error.
He contends the term of imprisonment unlawfully exceeds twice the number of years of the base term. (§ 1170.1, subd. (f).) This claim is predicated on his contention that his petty theft, in violation of section 488 carries only a six-month maximum misdemeanor sentence. The felony sentence arises only by virtue of it being charged as one following his previous conviction of petty theft (§ 666), allowing imposition of a sentence more than twice six months, thus more than double the so-called base term. By its terms section 1170.1, subdivision (f), applies only to limit the aggregate term of multiple sentences or enhancements imposed consecutively, it has no relevance here.
The court is faulted for not considering facts and circumstances of mitigation. This is contrary to the record.
Additionally, each of the matters raised and discussed above, should have been raised on appeal from...
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Robert M., In re
...v. Georgia, supra, 461 U.S. at p. ----, fn. 9, 103 S.Ct. at p. 2070, fn. 9, 76 L.Ed.2d at p. 230, fn. 9; People v. Mitchell (1981) 125 Cal.App.3d 715, 719-720, 178 Cal.Rptr. 188; State v. Oyler (1968) 92 Idaho 43, 436 P.2d 709, 713.) Nor are we suggesting a court could not revoke probation ......
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People v. Hackler, No. F014589
...at the probation revocation hearing. We initially consider the waiver issue. A. Waiver. Respondent relies on People v. Mitchell (1981) 125 Cal.App.3d 715, 178 Cal.Rptr. 188 to support its waiver claim. In Mitchell the defendant, like Hackler, was convicted of violating section 666. He was s......
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People v. Lopez, A111691 (Cal. App. 3/13/2007)
...Cal.App.4th 307, 320; People v. Colado (1995) 32 Cal.App.4th 260, 262; People v. Latham (1988) 206 Cal.App.3d 27, 31; People v. Mitchell (1981) 125 Cal.App.3d 715, 718; People v. Olken (1981) 125 Cal.App.3d 1064, 1067; People v. Munoz (1975) 51 Cal.App.3d 559, 563; People v. Vest (1974) 43 ......
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People v. Kiddoo
...sentencing hearing operates as a waiver of the issue on appeal, but it does not actually so hold. (See also People v. Mitchell (1981) 125 Cal.App.3d 715, 718-719, 178 Cal.Rptr. 188, in which defendant failed to object to a condition of probation either at the sentencing hearing or on appeal......