P. v. Mitchell

Filed 2/13/07  P. v. Mitchell CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

            APPEAL from a judgment of the Superior Court of Tuolumne County.  Eleanor Provost, Judge.

            Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, J. Robert Jibson and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

            On January 17, 2006, appellant Harry Thomas Mitchell II stole approximately $3,500 from two women who were preparing to make a night deposit at a bank in Tuolumne County.  As a result, a jury convicted him of second degree robbery (Pen. Code, §  211), and he was sentenced to the upper term of five years in prison.  He now appeals, claiming imposition of the upper term violated his constitutional rights.^[1]  For the reasons that follow, we will affirm.

DISCUSSION^[2]

            At the sentencing hearing, the trial court denied probation, in large part due to appellant's record and the fact he was on probation at the time of the instant offense.  In aggravation, the court found that the crime involved a threat of great bodily harm, as the victims believed appellant was armed, although it turned out there was no weapon (Cal. Rules of Court,^[3] rule 4.421(a)(1)); the victims were particularly vulnerable, as the crime took place at a bank at night (rule 4.421(a)(3)); appellant threatened a witness (rule 4.421(a)(6)); the manner in which the crime was carried out indicated planning and premeditation (rule 4.421(a)(8)); the crime involved a taking of great monetary value (rule 4.421(a)(9)); appellant was a serious danger to others in society (rule 4.421(b)(1)); appellant had â€