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People v. Todd4/15/2003
THE COURT
FACTS AND PROCEEDINGS
On December 20, 2000, appellant Michael Wayne Todd pled nolo contendere to second degree burglary (Pen. Code, § 459, count one) and to petty theft with a prior felony conviction (Pen. Code, § 666, count two). Todd also admitted an allegation he served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). Prior to taking Todd's plea, the trial court admonished him that he faced a maximum prison term of four years eight months. Todd was placed on probation. On December 27, 2000, Todd was accepted into a drug court program. On February 27, 2001, Todd admitted a probation violation but was reinstated into the drug court program. On April 23, 2001, Todd was terminated from the treatment program at Pine Recovery for violating the medication policy.
On September 6, 2001, Todd was under the influence of alcohol during an appearance in drug court. The court warned Todd that he could be dropped from the program. On September 10, 2001, the probation department filed a request to revoke Todd's probation for appearing at drug court with a blood alcohol level of .15 percent. The court found Todd in violation of probation and revoked his probation on September 13, 2001.
On October 11, 2001, the trial court sentenced Todd to prison for the upper term of three years for second degree burglary, a consecutive term of eight months for petty theft with a prior conviction, and a consecutive term of one year for the prior prison term enhancement. Todd's trial counsel challenged the consecutive term for petty theft with a prior conviction because he argued it was barred by Penal Code section 654. Defense counsel filed a motion to recall sentence to also review errors in the probation report, including custody credit calculation.
A second supplemental probation report was filed prior to the second sentencing hearing. The report stated the sole mitigating factor was the defendant's voluntary acknowledgment of wrongdoing at an early stage of the proceedings (Cal. Rules of Court, rule 4.423(b)(3)). For aggravating factors, the probation officer noted the manner in which the crime was carried out indicated planning and premeditation (Cal. Rules of Court, rule 4.421(a)(8)), Todd was on parole when the instant offense was committed (Cal. Rules of Court, rule 4.421(b)(4)), and Todd's performance on probation was unsatisfactory (Cal. Rules of Court, rule 4.421(b)(5)).
According to the probation report, Todd admitted using heroin on January 8, 2001, and was found to have falsified a drug test. Todd was admitted to the Pine Recovery Residential Treatment Program on February 27, 2001, but was asked to leave on April 18, 2001, for violation of the medication policy. After being remanded into custody, Todd was reinstated into the Drug Court Program on May 2, 2001. On May 16, 2001, Todd returned to court for a review hearing and admitted using alcohol and heroin on May 8, 2001. Todd was placed into the Visalia Rescue Mission on May 24, 2001 until he was found under the influence of alcohol during a court appearance.
On February 13, 2002, the trial court reconsidered Todd's sentence. Defense counsel argued the court should keep Todd on probation, or, alternatively, impose only the mitigated sentence. Counsel also argued Todd suffered from a mental illness which was an additional mitigating factor. Counsel contended the crime was not sophisticated and that going into Wal-Mart to commit a theft was "part of the offense itself." Counsel asked the court to strike the prior prison term enhancement.
The court imposed the four-year term for second degree burglary, but stayed its eigh
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