Opinion
A158074
03-09-2020
THE PEOPLE, Plaintiff and Respondent, v. GARY MITCHELL MUELRATH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CR944283)
Defendant Gary Mitchell Muelrath appeals the judgment imposed after the court found that he had violated his probation, revoked probation, and imposed a sentence of five years four months' imprisonment. The sentence comprises an upper term of four years for assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)), entered pursuant to a plea agreement in which he had pled no contest and been placed on probation, plus consecutive terms of eight months each on counts of failure to appear (§ 1320, subd. (b)) and receiving stolen property (§ 496, subd. (a)) for which he had been convicted in two subsequently filed cases. Muelrath's appointed counsel has submitted a brief in accord with People v. Wende (1979) 25 Cal.3d 436 (Wende) and has advised defendant of his right to submit a supplemental brief, which he has not done. This court's review of the record has disclosed no issues warranting further briefing.
All undesignated statutory citations are to the Penal Code.
Muelrath was arrested in Placer County in July 2013 after a violent altercation with his mother. The district attorney ultimately charged him, in Placer County case No. 62-123516, with felony counts of assault likely to produce great bodily injury (§ 245, subd. (a)(4)) and causing injury to an elder or dependent adult (§ 368, subd. (b)) and a misdemeanor count of damaging or removing a cell phone (§ 591.5). In October 2014, Muelrath pled no contest to violating section 245, subdivision (a)(4), pursuant to an agreement under which the court suspended imposition of sentence, the People dismissed the remaining counts, and Muelrath was placed on three years' probation subject to standard terms and conditions.
The order also imposed several fines and fees, but the Lake County Superior Court later vacated them. --------
In 2016, Muelrath moved to Lake County, and the Placer County Superior Court ordered his probation transferred to the Superior Court of that county, which assigned his case No. CR944283.
In early May 2017, Muelrath was arrested in Ukiah and charged in Mendocino County with attempted grand theft and receiving stolen property (§§ 487, 496, 664; Mendocino Super. Ct. No. SCUK-CRCR-17-89935). He was released on his own recognizance.
Later in May 2017, Lake County sheriff's deputies arrested Muelrath after finding him with methamphetamine during a traffic stop; he was charged with possessing a controlled substance and drug paraphernalia. The Lake County Superior Court summarily revoked his probation but in July reinstated probation and extended its term to January 2019, while imposing a 180-day jail commitment. The order reinstating probation required Muelrath to report to the probation department on "the 2nd Friday following his release from custody" and required him thereafter to report in writing each month to his probation officer.
Muelrath was released from the Lake County Jail on August 28, 2017, but, as the trial court subsequently found, he did not personally report to the probation office on the second following Friday. Although he filed the required written reports for several months, he failed to do so from December 2017 through March 2018. Muelrath also failed to satisfy probation terms requiring him to attend an anger-management course and perform community service.
In April 2018, Muelrath failed to appear at a hearing in Mendocino County in the 2017 case in which he had been charged with theft and receiving stolen property and been released on his own recognizance. He was thus charged in a new case with felony failure to appear (§ 1320, subd. (b)). In August 2018, Muelrath pled guilty in both Mendocino County cases to the charges of receiving stolen property (§ 496, subd. (a)) and failure to appear (§ 1320, subd. (b)). He was sentenced to two years eight months in jail.
Meanwhile, in June 2018, Lake County probation officers filed an affidavit alleging that Muelrath had failed to report in writing or in person as required by the 2017 order reinstating his probation, and the Lake County Superior Court summarily revoked his probation. In February 2019, Muelrath, who was still in custody in Mendocino County, demanded a hearing on the violation-of-probation charge. The Lake County Superior Court held an evidentiary hearing in May 2019 at which Muelrath, his father, and his probation officer testified.
The court accepted Muelrath's uncontradicted testimony that he had been in custody since March 22, 2018, excusing his subsequent failures to report, but it found not credible his testimony that he had gone to the probation office in September 2017 and had mailed written reports for the months of December 2017 through March 2018. The court thus held that Muelrath had violated his probation by failing to report. (At the ensuing sentencing hearing, the court further found that Muelrath had violated his probation by continuing to use drugs and by failing to participate in an anger-management course, community service, or AIDS treatment.)
The court received a supplemental probation report and held a sentencing hearing in June 2019 at which it permanently revoked Muelrath's probation. The court sentenced him to the upper term of four years for the assault likely to produce great injury (§ 245, subd. (a)(4)), which it deemed the principal count. The court denied probation on the counts for failure to appear (§ 1320, subd. (b)) and receiving stolen property (§ 496, subd. (a)), on which Muelrath had been convicted in Mendocino County, and sentenced Muelrath to one-third the midterm, or eight months, consecutive, on each of those counts. The court found that Muelrath was unable to pay any fines or fees, vacated those previously imposed in case No. CR944283, and awarded pre- and post-sentence credits. Muelrath filed a timely notice of appeal.
After counsel appointed for Muelrath submitted his Wende brief, we have reviewed the record on appeal and determined that it does not contain any arguable issues. Muelrath was represented by counsel throughout the proceedings, and the record reveals no issues that merit further briefing regarding the hearing on the violation-of-probation charge, the order revoking probation, the prison sentence imposed thereafter, or the other matters addressed at the May 2019 or the June 2019 hearings.
The judgment is affirmed.
/s/_________
POLLAK, P. J. WE CONCUR: /s/_________
STREETER, J. /s/_________
TUCHER, J.