P. v. Astengo

Filed 3/24/06 P. v. Astengo CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Anthony Astengo appeals from an order revoking probation and sentencing him to four years in state prison. Defendant contends the court improperly relied on his behavior while on probation in deciding to impose the middle term for each of his underlying offenses. We affirm.

BACKGROUND

Case No SC130163A^[1]

Defendant rented a house from Sherry Epley in February 2003. The first check he gave her, for $4,600, was returned unpaid by her bank. He gave her a second check to cover the first, and it was also returned unpaid. When Epley tried to contact defendant he was purported to be out of town on a family emergency. When Epley still had not heard from him by April 9, 2003, two months after he rented the house, she left a note on his door that asked him to call her. Defendant replied by e-mail that he was out of town but would send another check. When Epley received this third check, apparently signed by defendant's brother, Alan Astengo,^[2] she contacted the bank and learned it was written on a Discover card account that was closed in January 2001, after the card was reported lost or stolen.

A police investigation revealed that defendant opened the Discover card account with fraudulent information, and that the card company had incurred a loss on the account of $18,647.18. Astengo confirmed to police that his brother opened the account without his approval or assistance. He also told officers that the defendant had opened eight credit card accounts using Astengo's personal information since April of 1999 and charged approximately $58,800 to them. Defendant also opened several other unauthorized credit card accounts using his father's name.

Case No. CR129452A

On February 24, 2003, defendant attempted to cash a $25 check made out to his son, Devin. The check was given to Devin by his grandmother. Defendant stole the check from his son, changed the amount to $6,900 and attempted to open an account as Devin Astengo.

Devin's grandmother told police that Devin reported the check missing from his billfold. She also said the defendant was addicted to medication and alcohol. Devin's mother asked police to arrest defendant for the safety of her two sons.

The Grant of Probation

In case number SC130163A, defendant pled guilty to passing a bad check, identity theft, and possessing a fraudulent check. In case number CR129452A he pled guilty to second degree burglary. The court suspended imposition of sentence and placed defendant on five years' probation in both cases, to run concurrently. As a condition of probation he was ordered to serve consecutive terms of 90 days for passing a worthless check and 180 days for identity theft.

The Probation Revocation^[3]

On February 14, 2005, defendant passed a fraudulent check for $1,400 at a grocery store. The check was in his brother Alan's name.

The district attorney filed petitions to revoke defendant's probation in both underlying cases. Defendant admitted the allegations of the petitions and the court found defendant violated the terms of probation. The court declined to continue the defendant on probation, and found that while the circumstances of the case warranted an aggravated term, the court imposed the middle term sentence for each of the four offenses because the defendant had no prior criminal record. Defendant was sentenced to a total of four years in state prison.

DISCUSSION

Defendant contends the court erred by imposing the middle term because in doing so, he claims, the court relied on circumstances that occurred while he was on probation. The record does not support the defendant's claim.

At sentencing, his counsel asked the court to order the defendant into residential substance abuse treatment, perhaps impose county jail time, and reinstate the defendant on probation. She also pointed out that the court bear in mind California Rules of Court, Rules for Criminal Cases in the Superior Court, Rule 4.435(b)(1).^[4] Even though she didn't want her client sent to prison, the defendant's lawyer appeared to agree with the prosecution that in fixing a term, the mid-term sentence seemed appropriate. She stated, â€