People v. Mitchell

Jerry Thomas Mitchell appeals from the denial of a motion brought by the Board of Prison Terms to recall the sentence imposed for his conviction of violating Penal Code section 211 (robbery) and a Penal Code section 12022.5 finding (gun use).

Appellant and two accomplices were responsible for the robbery of a Taco Bell fast food restaurant in Bakersfield. Appellant and one accomplice en tered the victim’s premises while a third waited in a getaway car. Appellant used a firearm during the commission of the offense.

Appellant was sentenced to the aggravated term of five years on the robbery, plus a two-year enhancement for the gun use, for a total of seven years. Subsequent to his commitment to prison, the Board of Prison Terms reviewed appellant’s sentence to determine if it was disparate, pursuant to the requirements of Penal Code section 1170, subdivision (f). The board did, in fact, find that appellant’s sentence was disparate in comparison to sentences received by others convicted of similar offenses and recommended that appellant be resentenced to a total term no greater than 60 months.

The board’s conclusion was the result of a process of comparison developed by…