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The People v. Dale Edward Mcmihelk


January 21, 2011


Super. Ct. No. CRF052393

The opinion of the court was delivered by: Robie ,j.

P. v. McMihelk CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

On December 21, 2004, Kenneth Gregory reported to the sheriff's department that defendant Dale Edward McMihelk had taken over $200,000 worth of hay from him but did not pay all that was due. Defendant had rented a portion of a barn from the victim as well but never paid rent either.

On February 22, 2007, defendant entered a plea of no contest to grand theft of agricultural products (hay) and admitted that the loss exceeded $150,000 in exchange for a grant of probation and, if evidence was insufficient at the restitution hearing, the trial court would strike the enhancement.

On February 25, 2008, the court imposed an aggregate term of four years (two years for the underlying offense and two years for the enhancement), suspended execution of sentence, and granted probation for a term of five years subject to certain terms and conditions including that defendant report to the probation officer and pay monthly restitution of no less than $3,550 per month to the victim for a total of $211,226.

A declaration of violation of probation filed March 12, 2009, alleged that defendant failed to meet with the probation officer on September 30, 2008, and again on January 12, 2009, and that he failed to make restitution to the victim. On October 2, 2009, defendant admitted that he failed to make restitution to the victim as alleged but contested the other allegation.

At the contested probation violation hearing, Deputy Probation Officer David Hollar testified, over defendant's hearsay objection, that based on case notes and computerized case records of Deputy Probation Officer Jaime Melgoza, who had previously supervised defendant, defendant had been notified by letter dated September 2, 2008, to meet on September 16, 2008. Defendant called and rescheduled to September 30, 2008. He failed to appear on the rescheduled date.

A second letter was sent to defendant ordering him to report on January 12, 2009. Defendant failed to do so. Deputy Hollar attempted to contact defendant by telephone. Deputy Hollar never received a call back, having left a voice mail message. Deputy Hollar contacted defendant's mother, asking defendant to call. Defendant never returned the call. Deputy Hollar prepared a declaration for violation of probation and sent it to defendant. Defendant called thereafter asking questions about the declaration.

Defendant testified that he never received appointment letters from probation. He spoke by phone with Deputy Melgoza about a returned check for insufficient funds. When defendant's mother gave him the message that probation was trying to contact him, defendant claimed he called Deputy Melgoza who referred him to Deputy Hollar. Defendant claimed he called Deputy Hollar who stated that the probation violation had already been filed.

The court found by a preponderance of the evidence that defendant violated probation by failing to contact probation as alleged as well as failing to make restitution payments. The trial court found defendant's credibility to be low.

On October 29, 2009, the court denied continued probation and lifted the suspension on the previously imposed four-year state prison sentence. Defendant appeals.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.*fn1


The judgment is affirmed.

We concur:


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