Filed 4/15/22 P. v. Castillo CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. F. Brian Alvarez, Judge.

William P. Melcher, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Abner Ceasar Castillo was found guilty of assault, making criminal threats, dissuading a witness, and three counts of felony vandalism. On appeal, he contends (1) the trial court abused its discretion when it denied his Romero[1] motion to strike his prior strike conviction, and (2) we should vacate any remaining balance on the probation report fees imposed pursuant to former Penal Code section 1203.1b[2] because they are uncollectable and unenforceable pursuant to Assembly Bill No. 1869 (2019–2020 Reg. Sess.) (Assembly Bill 1896). The People disagree as to the first issue but agree as to the second issue. We vacate the portion of the judgment imposing probation report fees. As modified, we affirm.

PROCEDURAL SUMMARY

On May 19, 2020, the Fresno County District Attorney filed an information charging defendant with assault with a deadly weapon (§ 245, subd. (a)(1); count 1), making criminal threats (§ 422; count 2), dissuading a witness by force or threat (§ 136.1, subd. (c)(1); count 3), and three counts of felony vandalism (§ 594, subd. (a); counts 4–6). The information further alleged defendant had suffered a prior strike conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) and a prior serious felony conviction (§ 667, subd. (a)(1)).

On September 10, 2020, a jury found defendant guilty of simple battery on count 1 and guilty as charged on counts 2 through 6. On the same date, outside the presence of the jury, defendant admitted the prior conviction allegations.

On October 22, 2020, defendant requested that the trial court strike his prior strike conviction.

On November 6, 2020, the trial court declined to strike defendant’s prior strike conviction pursuant to Romero and section 1385. The court then sentenced defendant to 12 years four months in prison as follows: on count 3, six years (the middle term of three years doubled due to the prior strike conviction) plus a consecutive five-year serious felony conviction enhancement (§ 667, subd. (a)); on count 2, sixteen months (one-third of the middle term of four years), to be served consecutively to the term on count 3; and on counts 1, 4, 5, and 6, 180 days to be served concurrently with the term on count 3. The court also imposed various fines and fees, including a probation report fee pursuant to former section 1203.1b.

On December 11, 2020, defendant filed a notice of appeal.

FACTUAL SUMMARY

The People’s Case

Defendant’s father, Jamie C., lived with defendant’s mother, brother, and sister. Defendant had not lived with Jamie since August or September 2019 when Jamie kicked him out. Defendant’s sister, Karen, testified that Jamie physically restrained defendant in April 2019 but she had seen no other physical conflict between the two.

On or about November 16, 2019, Karen contacted defendant regarding the disappearance of their mother. Prior to her disappearance, she and Jamie had been involved in an argument.

On the evening of November 17, 2019, Jamie was alone at his home. Jamie began to exit his home through the back door when he saw defendant standing behind one of Jamie’s vehicles. Jamie did not go outside. Defendant had not been invited and Jamie had not expected to see him. Neither spoke to the other. Defendant then began breaking the windows of Jamie’s vehicle. Jamie could tell that defendant held something in his hands while breaking the windows, but he could not tell what it was. He demonstrated the grip in the courtroom—holding both fists together, parallel, “almost as if … he was holding a baseball bat ….” Jamie did not remember if defendant said anything while breaking the windows. After breaking windows on the vehicle, defendant broke three or four of the home’s windows.

After breaking windows on the car and home, defendant walked to a second of Jamie’s vehicles—approximately 20 feet from the first vehicle—and began throwing things at Jamie. Jamie then closed the door to the home and called 911. While Jamie was inside the home, defendant broke more windows to the home. Jamie exited the home via the front door and walked 40 or 50 feet to a third vehicle on the property, belonging to his employer. As Jamie reached the front driver’s side door, he saw that defendant had approached the third vehicle. Jamie ran from defendant. Defendant broke the rear driver’s side window and taillights of the third vehicle.

Defendant then walked toward the home next door to Jamie’s house. Jamie drove the third vehicle to his place of employment, approximately 200 feet from his home. He then either called 911 a second time or waited there for law enforcement to arrive.

When deputies arrived, at 6:38 p.m., Jamie told them what had happened. Deputies searched Jamie’s home and the surrounding property but did not find defendant. After, Jamie found one of the tools that was normally stored in the third vehicle in the garden near his home. The tool was a well key; a T-shaped metal tube. Jamie believed that defendant had used that tool to break the windows of the first and third vehicles and his home. Jamie estimated to the responding deputies that it would cost $1,800 to $2,000 to fix the damage to the first vehicle. He later reported the damage to his insurance company. The total cost of repair for the first vehicle was $2,600. Jamie repaired some of the damage to the third vehicle himself. The materials cost approximately $80 to $100. Jamie’s employer paid a company to replace the windows to Jamie’s home. It cost between $700 and $800.

Around the time the responding deputies left, at 8:14 p.m., Jamie’s daughter, Karen, returned home. Jamie told Karen what happened and began removing tools from the third vehicle to prevent defendant from using them to break any more windows if he returned. As Jamie was carrying some of the tools to his home, he reached the steps to his porch (approximately five or six feet from his front door) and noticed that defendant had returned. Karen also stood on the porch. Defendant shouted at Jamie from an exterior corner of the home, approximately six or seven feet from Jamie. Jamie turned to look at defendant and saw that he had something in his hand, approximately 18 inches to two feet in length, that Jamie thought was a knife. Defendant threw something at Jamie, that he later determined to be a hammer, striking him on the right hand. Defendant then stooped down, struck the ground with the object he was holding, and multiple times told Jamie that he would kill him and Karen. Jamie told Karen to go inside and call the police. Defendant told Karen that he would kill her if she called the police. Karen then ran to two neighboring houses to find help and to call 911.

Jamie stood on the stairs to the porch, holding the T-shaped tool that he believed defendant had used to break the windows. Defendant began to advance on Jamie. When defendant got near enough for Jamie to reach him, Jamie struck defendant on the left leg more than once with the T-shaped tool. Defendant fell to the ground and began to back away. Jamie told defendant to drop the object in his hand, that Jamie continued to believe to be a knife. Eventually, defendant dropped the object which Jamie saw to be a large screwdriver. Soon after, at about 8:23 p.m., sheriff’s deputies arrived and arrested defendant. At some point after the deputies arrived, defendant’s mother arrived at the home.

After defendant was arrested, law enforcement officers photographed Jamie’s right hand. His right pinky finger appeared to be swollen. The injury to his finger was not from broken glass or from his work.

Defendant’s Case

Defendant testified that Jamie had been physically violent with him “numerous times” over the “last couple of years.” Defendant had also seen Jamie be physically violent with his mother. Most recently, Jamie had been violent with his mother two or three weeks before the November 17, 2019, incident. In some of those instances of violence, defendant stood between Jamie and his mother so Jamie would not hit her. After those interactions, defendant would choose to leave the home. Jamie never threw him out of the house for drug use. Defendant did not use drugs. Rather, after defendant intervened in arguments between Jamie and defendant’s mother, his mother told him it was “better [he] just leave” so Jamie would not hit him. After at least one of the arguments between Jamie and defendant’s mother, his mother left to stay at his aunt’s house. Defendant never called the police to report Jamie’s conduct. Jamie told him not to because he feared being deported if he got in trouble.

On November 17, 2019, defendant had text message conversations with Karen and Jamie regarding his mother being missing. Defendant told Jamie by text message that he was coming over to the home that night. Defendant went to the home at sundown and shouted from the driveway in front of the home for Jamie to come outside. Jamie exited the front door with the well key in his hand. Defendant held a piece of cement containing rocks—“about softball size”—in his right hand. He then asked Jamie where his mother was and what had happened to her. Jamie and defendant then argued.

Jamie then chased defendant from the front of the home to the back of the home with the well key. As Jamie chased defendant, defendant began breaking windows on the mobilehome by striking it with the piece of cement. When defendant reached the back of the home and the first vehicle, he began breaking the windows to the vehicle using the same piece of cement. At that point, defendant lost sight of Jamie. He then went to the third vehicle and broke those windows. As he broke windows, he asked, “Where’s my mom at?” Defendant broke the windows because he thought his mother was dead. Defendant thought Jamie might be responsible because “[h]is abuse started getting really bad.”

After Jamie left the area, defendant also left the area. He ran through the almond orchard near Jamie’s home to a nearby canal.

Defendant took “a long period of time to catch [his] breath” and then returned to Jamie’s home. He explained that he returned to the home because he believed he had left his cell phone at the home, and he wanted to retrieve it and call law enforcement regarding his mother’s disappearance. When he arrived at the home, he saw Jamie and Karen on the porch. He told Jamie that he came to get his cell phone. Jamie had the well key. Defendant had nothing in his hands.[3] They again began to shout at each other. Defendant could not understand what Jamie was saying. Defendant did not throw anything at Jamie. Defendant did not tell Karen or Jamie that he was going to kill them. Jamie approached defendant, told Karen to call 911, and began hitting defendant with the well key. Defendant fell to the ground and did not fight back. When Jamie hit defendant, Karen ran away. As Karen ran away, defendant told Karen, “ ‘He’s going to kill you too.’ ” Soon thereafter, the deputies arrived.

Defendant admitted having suffered prior convictions for domestic violence and rape of a person prevented from resisting by an intoxicating or controlled substance.

DISCUSSION

I. Romero Motion

Defendant contends the trial court abused its discretion when it denied his Romero motion to strike his prior strike conviction. We disagree.

A. Additional Background

On October 22, 2020, defendant filed a Romero motion to strike his prior strike conviction, a 2014 conviction for rape of an intoxicated person. Defendant argued that: (1) the length of a sentence enhanced by a prior strike conviction would be unjust, (2) the current offense is different in nature than the prior strike conviction, (3) the prior strike conviction occurred nearly six years prior to the present conviction, (4) defendant’s substance abuse problems contributed to his criminality, (5) Jamie was physically and verbally abusive toward defendant, (6) the offense took place under circumstances unlikely to repeat, to wit, defendant’s belief that his father had harmed or killed his mother, (7) defendant may have been under the influence of narcotics at the time of the offense, and (8) defendant was successfully discharged from parole on the prior strike conviction.

The trial court denied defendant’s motion. The court provided a detailed explanation of the standard and its reasoning:

“Factors that this Court should consider include individualized character and considerations of [defendant’s] background, the nature of the present offenses, and other circumstances with regards to his rehabilitation, if at all. … [T]he California Supreme Court has repeatedly stated that the circumstances must be extraordinary by which a career criminal can be deemed to fall outside the spirit of the scheme for which he squarely falls once he commits a crime as part of a pattern of continuous criminal conduct, the continuation of which the law was meant to attack or end. And what we have is [defendant] presents with a history of violent criminal conduct. We’ve heard that he’s been convicted of rape, a violent felony. We’ve heard that he’s been convicted of domestic assault causing corporal injury to a spouse. In the Court’s way of thinking, it involves violence, likewise. And now we have a situation where he was convicted of threatening to kill his father and threatening to kill his sister if she called the police. … [Defendant], wherever he goes will have his criminal history following behind him for any new offense that he commits including these ones. That’s not to say that the Court’s not considering circumstances in mitigation, that’s to say that there are no circumstances for which the Court believes the furtherance of justice should afford him striking the prior convictions as requested. So, accordingly, his request under [section] 1385 would be denied him because the Court finds that the rape conviction itself is only six years old. He really hasn’t led a legally blameless life since that conviction. He continues to abuse alcohol and drive while under the influence. In fact, he was on probation for a DUI offense when he was alleged to have committed these new offenses and he was afforded an opportunity to program in rehab. He didn’t take that opportunity, unfortunately. As noted, these new convictions also involve violence and threats of violence. The Court also notes that his convictions now are numerous and getting increasingly serious and violent. He now has his third, fourth, fifth, sixth and seventh felony convictions. For those reasons, his request for Romero relief is den[ied].”

B. Applicable Law

Section 1385 grants trial courts limited discretion to strike prior convictions in Three Strikes cases. Trial courts may strike prior felony conviction allegations in cases brought under the Three Strikes law in the furtherance of justice. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529–530.) In deciding whether to strike a prior conviction, “the court in question must consider whether, in light of the nature and circumstances of [the defendant’s] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [Three Strikes] scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)

A trial court’s denial of a Romero motion is subject to review for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) The trial court’s decision “ ‘ “ will not be reversed merely because reasonable people might disagree.” ’ ” (Id. at p. 377.) “ ‘ “ ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ ” (Ibid.) In order to establish an abuse of discretion, the defendant must show the “decision is so irrational or arbitrary that no reasonable person could agree with it.” (Ibid.)

The Three Strikes law establishes that not striking a prior strike is the norm, and there is a “strong presumption that any sentence that conforms to [the] sentencing norm[ ] is both rational and proper.” (Carmony, supra, 33 Cal.4th at p. 378.)

C. Analysis

Here, the record reflects the trial court took the applicable factors into consideration before making its determination on the Romero motion. First, the trial court considered defendant’s prior offenses of conviction: a 2012 domestic violence conviction, a 2014 rape conviction, and driving under the influence (DUI) convictions in 2017 and 2018, among others. It considered the age of defendant’s prior strike conviction, roughly six years, and the fact that defendant had not since led a legally blameless life. It commented that the domestic violence and rape convictions were both violent offenses. It considered that defendant was on probation on the 2018 DUI conviction at the time he committed the present offenses. It also considered the facts pertaining to the present offense—that defendant threw a hammer at his father and threatened to kill his father and sister. It noted that the present offenses involved violence and the threat of violence. In short, the trial court considered the relevant factors and reached a decision that—in combination with the presumption that refusing to strike a prior strike conviction is rational and proper—is not so irrational or arbitrary that not a reasonable person could agree with it. Defendant’s arguments do not convince us to the contrary.

Defendant first argues that the trial court “placed undue focus” on his criminal history. It should have, he argues, focused more on the nature and circumstances of the present conviction and the concern he felt for his mother’s disappearance. We disagree on both accounts. The trial court discussed its consideration of defendant’s criminal history, the circumstances of the present offence, and the absence of mitigating circumstances “for which the [c]ourt believe[d] the furtherance of justice” required striking of the prior strike conviction. The trial court demonstrated that it understood and considered the relevant considerations. Defendant’s disagreement with the trial court’s conclusion does not undermine that conclusion.

Second, defendant argues that his prior strike conviction was remote because it occurred in January 2014. “In determining whether a prior conviction is remote, the trial court should not simply consult the Gregorian calendar with blinders on.” (People v. Humphrey (1997) 58 Cal.App.4th 809, 813; see People v. Solis (2015) 232 Cal.App.4th 1108, 1124 [a prior strike conviction is not properly stricken merely because it is 30 years old].) “To be sure, a prior conviction may be stricken if it is remote in time. In criminal law parlance, this is sometimes referred to as ‘washing out.’ [Citations.] The phrase is apt because it carries the connotation of a crime-free cleansing period of rehabilitation after a defendant has had the opportunity to reflect upon the error of his or her ways.” (Humphrey, at p. 813.) Here, as the trial court noted, defendant did not live a “ ‘legally blameless life’ ” after his prior strike conviction. (Ibid.) Defendant was convicted of driving on a suspended license in 2016, a DUI in 2017, and another DUI in 2018. Defendant also failed to appear for a hearing related to his 2018 DUI conviction on April 12, 2019. This factor did not weigh in favor of striking defendant’s prior strike conviction.

Third, defendant argues that the trial court failed to give sufficient weight to defendant’s history of substance abuse as a cause of his criminality. Again, we disagree. The trial court expressly noted that defendant was on probation for a DUI on the date of the current offenses. As part of that probation, “he was afforded an opportunity to program in rehab. He didn’t take that opportunity ….” The court was aware of defendant’s history of substance abuse. Because defendant had apparently done little to address his substance abuse despite the availability of treatment options, the trial court was not required to consider his substance abuse as a mitigating factor. (See Carmony, supra, 33 Cal.4th at pp. 378–379; People v. Williams, supra, 17 Cal.4th at p. 163; People v. Leavel (2012) 203 Cal.App.4th 823, 830.)

Defendant next argues that his current offenses were driven by concern for his missing mother and should therefore not have been punished pursuant to the Three Strikes law. We disagree. At trial, defendant testified that he had physically defended his mother against Jamie for years. He testified that the incidents were witnessed by Karen. However, Jamie and Karen both testified that, while there may have been multiple arguments between Jamie and his wife, physical violence between defendant and Jamie was rare. The only conduct mentioned was pushes between defendant and Jamie and Jamie holding defendant down. Moreover, at trial, defendant testified that he did not use drugs, had not used drugs on the date of the offenses, and none of the conflict between defendant and Jamie was a result of drug use. Defendant’s alternative sentencing report suggested the opposite—that defendant regularly abused alcohol and methamphetamine and had done so on the date of the current offenses. Defendant further testified at trial that he never called 911 to report his mother’s disappearance or any of the previous alleged incidents of domestic violence. From that evidence, the trial court could reasonably have concluded that defendant’s violent conduct in the current offenses was not, as defendant suggests, a result of abuse from Jamie and concern for his mother. The trial court could also have reasonably concluded that insofar as any abuse by Jamie or concern for his mother did play a role in defendant’s conduct, his violence was not justified and his violence and recidivism showed that he did not fall outside the spirit of Three Strikes law sentencing.

Finally, defendant argues that the current offenses were different in nature from his prior convictions. Defendant’s prior felony convictions were for domestic violence and rape. The trial court noted that both of those prior offenses were violent, as were the current offenses. Defendant displayed an inability to rehabilitate. The fact that defendant’s prior strike conviction was a sex offense, and the current offenses did not include any sexual component, does not convince us that the trial court abused its discretion in refusing to strike his prior strike conviction.

On the record before us, the trial court’s decision was not “so irrational or arbitrary that no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.) Thus, the trial court did not abuse its discretion when it denied defendant’s Romero motion.

II. Assembly Bill 1869

Effective July 1, 2021, Assembly Bill 1869 eliminated many fines, fees, and assessments that courts have imposed under a variety of statutes, including former section 1203.1b, previously allowing collection of probation report fees. (Stats. 2020, ch. 92, §§ 2, 11, 47, 62.) The parties agree, as do we, that the balance of any probation report fees ordered pursuant to former section 1203.1b are uncollectable and unenforceable as of July 1, 2021. (§ 1465.9, subd. (a).) We therefore vacate the portion of the judgment requiring payment of fees pursuant to former section 1203.1b. Any portion of those fees not collected before July 1, 2021, is unenforceable and uncollectable.

DISPOSITION

The portion of the judgment imposing fees pursuant to former section 1203.1b is vacated. In all other respects, the judgment is affirmed.

* Before Levy, Acting P. J., Peña, J. and Smith, J.

[1] People v. Superior Court (Romero) (1966) 13 Cal.4th 497.

[2] All further statutory references are to the Penal Code.

[3] Defendant later clarified that if he had anything in his hands, it was a white T‑shirt that he took off as he walked back from the canal.