Filed 9/25/23 P. v. Pace CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E080409
v. (Super.Ct.No. FSB22000431)
MITCHELL STEVEN PACE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson,
Jr., Judge. Affirmed.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Marvin
E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
1 INTRODUCTION
Defendant and appellant, Mitchell Steven Pace, appeals the trial court’s denial of
probation and imposition of a prison sentence. Defendant contends the trial court abused
its discretion in denying reinstatement of probation and imposing the middle term
sentence of three years after defendant violated the terms of his probation twice within
the first six months of his probationary period.1 We affirm.
PROCEDURAL BACKGROUND
On March 30, 2022, the People filed an information charging defendant with one
count of willful infliction of corporal injury. (Pen. Code, § 273.5, subd. (a),2 count 1.)
The information also alleged defendant committed assault by means of force likely to
produce great bodily injury. (§ 245, subd. (a)(4), count 2.) On April 26, 2022, pursuant
to a plea bargain, defendant pled guilty to count 1, a felony violation of section 273.5,
subdivision (a). Case No. MSB19012177, a misdemeanor domestic violence case, was
dismissed as part of the plea bargain. Defendant was placed on felony probation for 36
months. Defendant’s probation terms and conditions included having no contact with the
victim in this case. Defendant’s probation terms also required defendant to cooperate
with the probation officer and follow all reasonable directives of the probation officer.
1 Defendant does not claim the trial court erred in finding him in violation of probation. Defendant only claims the trial court erred in denying another opportunity on probation and alternatively imposing a prison sentence. As such, the standard of review is abuse of discretion. (People v. Urke (2011) 197 Cal.App.4th 766, 773 (Urke) [a probation violation decision is reviewed for substantial evidence].)
2 All further unlabeled statutory references are to the Penal Code.
2 Defendant received a copy of his terms and conditions of probation and initialed next to
each term. At his probation orientation, defendant was read his terms and conditions and
indicated he understood them.
A. Defendant’s First Violation of Probation
On June 10, 2022, defendant’s probation officer filed a petition to revoke
defendant’s probation. The petition alleges that on June 7, 2022, defendant was found at
the victim’s address and subsequently arrested for violating a domestic violence
restraining order. (§ 273.6, subd. (a).) Defendant’s probation officer interviewed
defendant about the circumstances of the probation violation. Defendant admitted to
having contact with the victim two or three times since his release from custody.
Defendant stated he understood the severity of his actions, accepted responsibility, and
apologized for being in contact with the victim. When asked if he would abide by the
court order to have no contact with the victim, defendant stated he would. In his
supplemental report, defendant’s probation officer recommended the trial court add a
probation term requiring a global positioning system (GPS) monitor to ensure defendant
did not return to the victim’s address.
On July 15, 2022, defendant pled no contest to a misdemeanor charge of violating
a domestic violence restraining order (§ 273.6, subd. (a)) and a misdemeanor charge of
trespass (§ 602.5, subd. (a)). The same day, defendant also admitted the violation of
probation stemming from the June 10, 2022 petition. At the probation revocation
hearing, the victim requested the protective order be terminated. The trial court denied
3 the victim’s request stating he would reconsider terminating the protective order if
defendant successfully complied with the terms and conditions of his probation and
attended ordered programs. Based on defendant’s admission and review of the probation
report, the trial court found defendant in violation of the terms of his probation. The trial
court reinstated defendant on probation on the original terms with several modifications.
One such modification ordered defendant to submit to continuous electronic monitoring
as directed by the probation officer and abide by all rules and restrictions of the program.
Defendant accepted the probation terms as modified.
B. Defendant’s Second Violation of Probation
On October 24, 2022, defendant’s probation officer filed a second petition to
revoke defendant’s probation. The petition alleges defendant violated three probation
terms: (1) defendant did not cooperate with the probation officer in a plan of
rehabilitation and follow all reasonable directives of the probation officer; (2) defendant
had contact with the victim; (3) defendant failed to submit to continuous electronic
monitoring. Defendant denied violating his probation. A probation revocation hearing
was conducted on December 20, 2022, and December 22, 2022.
C. Probation Revocation Hearing and Imposition of Sentence
At the probation revocation hearing, defendant’s probation officer testified about
the circumstances leading to the petition to revoke defendant’s probation. On September
26, 2022, defendant’s probation officer received a dead battery notice from defendant’s
GPS monitor. Defendant’s probation officer called defendant to inquire about the dead
4 battery issue. Defendant stated he didn’t have enough time to charge the monitor because
of work. Defendant’s probation officer instructed defendant to charge the monitor 30 to
45 minutes in the morning and evening. Defendant’s probation officer warned if
defendant allowed the battery to die again, defendant’s probation officer would issue a
citation. Defendant stated he understood.
On October 23, 2022, defendant’s probation officer received a notification that
defendant’s GPS monitor had a dead battery. Defendant had previously been instructed
to immediately contact his probation officer if the battery on his GPS monitor died.
Defendant did not immediately contact his probation officer. During the three months
defendant was ordered to wear the GPS monitor, his monitor died approximately 14
times.
On October 24, 2022, defendant’s probation officer conducted a home compliance
check at defendant’s reported address. While at defendant’s residence, the probation
officer had a colleague check the vehicle registration for a vehicle parked at the location.
The vehicle was registered to the victim. Defendant’s probation officer asked defendant
about the ownership of the vehicle. Defendant initially stated the vehicle belonged to a
client of the homeowner of the main residence. Defendant’s probation officer confronted
defendant about the victim being the registered owner. Defendant admitted to lying to
his probation officer. Defendant also admitted having contact with the victim.
Defendant initially stated he had spoken to the victim approximately one week prior to
his contact with his probation officer. Defendant’s probation officer reviewed
5 defendant’s call log and saw he had answered a call from the victim the day prior.
Defendant testified at the probation violation hearing acknowledging he was warned
during his prior probation violation hearing that he was to have no contact with the
victim, even if she reached out to him.
At the probation revocation hearing, the trial court heard evidence that defendant
was complying with several terms of his probation. Defendant was attending his 52-
week domestic violence batterer’s treatment program and had gainful employment.
Defendant was completing his jail time on the weekends. Defendant also had no pending
law violations.
Following the close of evidence and argument, the trial court again found
defendant in violation of his probation. The trial court found defendant in violation for
failing to cooperate with the probation officer in the plan of rehabilitation and for failing
to follow all reasonable directives of the probation officer. The trial court also found
defendant in violation for failing to submit to continuous electronic monitoring. The trial
court noted it was defendant’s second violation of probation.
Prior to indicating the sentence, the trial court commented defendant had been
given a prior opportunity on probation. Specifically, the trial court indicated when
defendant was previously reinstated, defendant acknowledged understanding the terms of
his probation, including having no contact with the victim. The trial court recited
applicable factors in aggravation. The trial court found the charged crime involved great
violence, great bodily harm, threat of bodily harm, and disclosing a high degree of
6 cruelty. The trial court also found defendant’s performance on probation was
unsatisfactory. The trial court did not find any factors in mitigation. The trial court
indicated it had reviewed all circumstances in aggravation and mitigation and found a
middle term sentence of three years state prison appropriate.
STATEMENT OF FACTS
A. Underlying Offense
On February 13, 2022, deputies were dispatched to a residence regarding a
domestic disturbance. When interviewed, the victim stated she and defendant had
engaged in a verbal argument in the garage of the residence. The argument turned
physical as defendant and the victim struggled over a glass of wine. Defendant then
grabbed the victim by the throat and strangled her. Upon contact with the police, the
victim had red marks on her neck and a scratch mark on her chin.
B. Defendant’s Criminal History
Defendant does not have any prior felony convictions. On August 23, 2003,
defendant was convicted of a misdemeanor violation of section 273.5 subdivision (a).
For that conviction, defendant was sentenced to 36 months of probation, 13 days in jail,
and a fine. Defendant was charged in 2019 with misdemeanor domestic violence against
a different victim in case No. MSB19012177. Case No. MSB19012177 was dismissed as
part of the plea bargain reached case No. FSB2200431.
7 DISCUSSION
A trial court’s exercise of its discretion in imposing sentence is reviewed for abuse
of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval), superseded by
statute on another point as stated in People v. Lewis (2023) 88 Cal.App.5th 1125, 1132.)
A trial court abuses its discretion “whenever the court exceeds the bounds of reason, all
of the circumstances being considered.” (People v. Giminez (1975) 14 Cal.3d.68, 72.) A
“ ‘decision will not be reversed merely because reasonable people might disagree. “An
appellate tribunal is neither authorized nor warranted in substituting its judgment for the
judgment of the trial judge.” ’ ” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th
968, 978 (Alvarez).) The trial court’s decision will be disturbed only if there is a clear
showing the sentence was arbitrary or capricious. (Sandoval, at p. 847.) The burden is
on the party attacking the sentence to clearly show the sentence was arbitrary or
capricious. (People v. Carmony (2004) 33 Cal.4th 367, 376 (Carmony).)
A trial court’s decision to grant or deny probation is discretionary. (People v.
Shenouda (2015) 240 Cal.App.4th 358, 368-369.) “Probation is not a matter of right but
an act of clemency, the granting and revocation of which are entirely within the sound
discretion of the trial court. [Citations.]” (People v. Pinon (1973) 35 Cal.App.3d 120,
123.) “Section 1203.2, subdivision (a), authorizes a court to revoke probation if the
interests of justice so require and the court, in its judgment, has reason to believe that the
person has violated any of the conditions of his or her probation.” (Urke, supra, 197
Cal.App.4th at p. 772.) “Many times circumstances not warranting a conviction may
8 fully justify a court in revoking probation granted on a prior offense. [Citation.]”
(People v. Vanella (1968) 265 Cal.App.2d 463, 469.) A defendant’s demonstrated lack
of commitment to carrying out the terms and conditions of probation coupled with the
need to protect public safety is an appropriate basis on which to refuse to reinstate
probation and sentence a defendant to prison. (People v. Downey (2000) 82 Cal.App.4th
899, 910 [second violation of probation].) “When the record reveals that a defendant’s
violation of the terms of probation was the result of irresponsible or willful behavior,
termination of probation and imposition of a prison sentence is no abuse of discretion.”
(People v. Kingston (2019) 41 Cal.App.5th 272, 278 (Kingston).)
A trial court abuses its discretion if it considers improper factors in imposing a
sentence. (Sandoval, supra, 41 Cal.4th at p. 847.) Improper considerations include
reliance on factors not relevant to sentencing objectives. (People v. Bolton (1979) 23
Cal.3d. 208, 216-217 [trial court abused its discretion in basing its sentence, in part, on
defendant’s children receiving welfare benefits and being born out of wedlock]; see
People v. Morales (1967) 252 Cal.App.2d 537, 545-546 [trial court abused its discretion
in imposing consecutive sentencing after defendant did not plead guilty and presented a
“frivolous” defense at trial].) It is also improper for the trial court to consider the
underlying facts of dismissed charges. (People v. Gutierrez (1980) 109 Cal.App.3d 230,
232-233.)
In making a sentencing decision, the sentencing judge may consider circumstances
in aggravation or mitigation, and any other factor reasonably related to the sentencing
9 decision. (Cal. Rules of Court, rule 4.420.) “The relevant circumstances may be
obtained from the case record, the probation officer’s report, other reports and statements
properly received, statements in aggravation or mitigation, and any evidence introduced
at the sentencing hearing.” (Cal. Rules of Court, rule 4.420(d).)
California Rules of Court, rule 4.421, enumerates factors in aggravation the trial
court may consider. One such factor is whether the crime involved great violence, great
bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty,
viciousness, or callousness. (Cal. Rules of Court, rule 4.421(a)(1).) Another factor is the
defendant’s prior performance on probation, mandatory supervision, post release
community supervision, or parole was unsatisfactory. (Cal. Rules of Court, rule
4.421(b)(5).) California Rules of Court, rule 4.423, enumerates factors in mitigation the
trial court may consider.
Here, after defendant’s second probation violation in the first six months of his
probationary period, the trial court denied defendant’s request to be reinstated on
probation and imposed a prison sentence. The first violation involved both a new law
violation and probation term violation. Defendant pled no contest to violating a domestic
violence restraining order (§ 273.6, subd. (a)) and a misdemeanor charge of trespass
(§ 602.5, subd. (a).) These violations occurred approximately 40 days after defendant
began his probation term.
10 At the hearing, the trial court warned defendant he was to have no contact with the
victim, even if she reached out to him. The trial court extensively admonished3
defendant. Despite the new law violation and probation term violation, the trial court
reinstated defendant on probation. In reinstating defendant’s probation, the trial court
modified defendant’s terms. Specifically, the trial court followed the probation officer’s
recommendation to modify the probation terms to include continuous GPS monitoring,
thus allowing probation to monitor whether defendant returned to the victim’s home. At
the conclusion of the hearing, defendant accepted the modified terms of his probation.
Approximately three months after defendant was reinstated on probation, his
probation officer filed another petition to violate defendant’s probation. This petition
alleges defendant violated three terms of probation: (1) defendant did not cooperate with
the probation officer in a plan of rehabilitation and follow all reasonable directives of the
probation officer; (2) defendant had contact with the victim; and (3) Defendant failed to
submit to continuous electronic monitoring.
Defendant characterizes the probation violations as minor in nature. Such a
characterization might be appropriate if the issue before the trial court were one instance
where the GPS device battery died. Defendant allowing the GPS device’s battery to die
14 times in three months is significant. It is particularly significant because the GPS
device was added to defendant’s probation terms as a tool to monitor whether he was
3 The exact language used during the admonishment is unknown as the transcript from the July 15, 2022 probation revocation hearing is not part of the record on appeal. However, the omission of this transcript did not hinder this court from conducting the appropriate analysis.
11 abiding by the order to have no contact with the victim. During his testimony at the
probation revocation hearing, defendant provided varying explanations for the GPS
device battery dying. Defendant stated the long commute to his job hampered his ability
to charge the GPS device. Defendant opined the sun, “overworking” the device, or
charging it too much may have caused the device’s battery to die. Defendant also
testified that he was having problems with the device charging. On cross-examination,
defendant opined dust or damage from being knocked around on the construction site
may have caused the GPS device’s battery to die.
Defendant’s probation officer testified that these issues, apart from the commute,
were not brought to his attention. When defendant’s probation officer discussed the
issues with him at the time of the dead battery notice, defendant simply stated he was
working and apologized. If defendant truly experienced valid problems with the GPS
device, it was his responsibility to bring that to the attention of his probation officer. His
failure to do so suggests a lack of responsibility and initiative. Defendant allowing the
device’s battery to die 14 times in three months was willful and irresponsible behavior.
Such behavior constitutes an appropriate basis for the trial court to refuse to reinstate
probation and impose a prison sentence. (Kingston, supra, 41 Cal.App.5th at p. 278.)
Defendant argues the trial court’s failure to find that he violated the probation term
forbidding him from contacting the victim acts as an acknowledgment that defendant did
not violate the protective order. However, by defendant’s own admission, he answered
the victim’s calls, despite being explicitly advised by the trial court against doing so.
12 Defendant’s probation officer also directed him to not have any contact with the victim.
Defendant did not follow his probation officer’s directive. Defendant relies on the victim
requesting the protective order be terminated as support for defendant’s repeated
violation of the no contact order. However, probation terms govern the behavior of the
defendant, not that of the victim. Defendant is capable of not answering the victim’s
calls and his repeated decision to do so is a willful violation of his probation officer’s
directives.
Defendant argues he was “fulfilling all of his obligations.” In support of this
argument, defendant points out that he maintained gainful employment, attended the
batterer’s treatment classes, and spent his weekends in jail. While those efforts are
laudable, they do not fulfill all of defendant’s obligations. Defendant consistently failed
to keep his GPS monitor charged as directed, failed to submit to continuous electronic
monitoring, and failed to follow his probation officer’s directive to have no contact with
the victim. Thus, defendant did not comply with all terms of his probation as required.
Defendant also alleges the trial court failed to consider several mitigating factors.
Specifically, defendant alleges the trial court failed to consider that defendant maintained
gainful employment, attended the batterer’s treatment classes, and spent his weekends in
jail. However, the record shows defendant’s trial counsel argued each of these issues to
the trial court in mitigation. Following this argument, the trial court explicitly indicates it
considered factors in mitigation and aggravation, ultimately determining the middle term
was appropriate.
13 Defendant’s characterization of the violations as minor demonstrates the
difference of opinion contemplated in Alvarez. (Alvarez, supra, 14 Cal.4th at p. 977
[distinguishing abuse of discretion from reasonable minds differing in opinion].)
Defendant and the trial court may disagree about the gravity of the violations and the
quality of defendant’s performance on probation. However, a difference of opinion does
not make the trial court’s decision arbitrary or capricious.
The burden rests on defendant to show the trial court’s decision was arbitrary or
capricious. (Carmony, supra, 33 Cal.4th at p. 376.) Defendant has failed to meet his
burden. The record is devoid of evidence the trial court considered improper factors in
making its decision. The record shows the trial court considered the nature of the
criminal conduct, defendant’s prior performance on probation, and the allegations
underlying the petition to revoke defendant’s probation. These are proper considerations
for sentencing. (Cal. Rules of Court, rules 4.420 & 4.421.) Thus, the trial court’s
decision was neither arbitrary, nor capricious. Based on these considerations, the trial
court found defendant in violation of his probation, denied defendant’s request for
reinstatement on probation, and imposed the middle term of three years. As such, the
trial court did not abuse its discretion in denying defendant’s request for reinstatement on
probation and imposing a prison sentence.
14 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J.
We concur:
MILLER J.
CODRINGTON J.