Opinion
A158727
06-29-2020
THE PEOPLE, Plaintiff and Respondent, v. PRESCOTT CASTILLON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. SCN218329)
Prescott Castillon appeals from a judgment revoking probation and executing a previously imposed and stayed state prison sentence. His appellate counsel has filed a brief that raises no issue for appeal and asks this court for an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having conducted that review, we affirm the judgment.
SUMMARY OF RECORD ON APPEAL
I. The 2012 Robbery Conviction
In May 2012, Castillon was charged with second degree burglary of a commercial building (Pen. Code, § 459), receiving or buying stolen property (§ 496, subd. (a)), possession of tear gas by a felon (§ 22810, subd. (a)), possession of illegal drug paraphernalia (§ 11364.1, subd. (a)), and second-degree robbery (§ 211). The robbery charge included enhancement allegations for use of a deadly weapon (§ 12022, subd. (b)(1)) and having a recent prior felony for which a state prison term was served (§ 667.5, subd. (b)).
Statutory references are to the Penal Code. --------
In July 2012, Castillon agreed to a negotiated disposition pursuant to which he would plead guilty to second-degree robbery and the prosecutor would move to dismiss the other charges. At the plea hearing, defense counsel notified the court that he advised Castillon of the consequences of this plea, including that his conviction would be a strike, and that Castillon intended to enter the plea against the advice of counsel because it afforded the opportunity for him to receive a suspended sentence. The court conducted an inquiry to ensure that Castillon's decision was knowing and voluntary. The parties stipulated to a factual basis for the plea, and then Castillon pleaded guilty to second-degree robbery.
On August 1, 2012, the court imposed an upper-term sentence of five years in state prison and ordered execution of sentence suspended. Castillon was placed on probation for a period of three years, subject to terms and conditions, which Castillon accepted. These conditions included that Castillon "obey all laws."
II. Probation Violations Resulting in Modifications of Probation
In October 2012, the San Francisco Probation Department (the Department) filed a motion to revoke probation. The motion was based on evidence that four days after Castillon was placed on probation, he was arrested in Contra Costa County and charged with vehicle theft. Castillon's probation was administratively revoked after he failed to appear for a hearing. Following execution and return of a bench warrant, Castillon waived his rights and admitted the violation. In January 2013, probation was reinstated on original terms and conditions, with modifications. The court imposed an additional term that required Castillon to report to his probation officer monthly, or as directed, and provided: "Failure to report is a violation of the terms of your probation." In addition, Castillon was ordered to serve a six-month jail term, and his probation was extended until September 21, 2015.
In May 2013, the Department filed a motion to revoke probation, supported by evidence that, on May 18, 2013, Castillon was arrested in Contra Costa County for burglary, illegal drug possession and probation violations. Probation was administratively revoked after Castillon failed to appear for a hearing. Following execution and return of a bench warrant, Castillon waived his rights and admitted the probation violation. On July 26, 2013, probation was reinstated on original terms and conditions, with modifications. Castillon was required to serve a six-month jail term and to complete an Intensive Treatment Program. Probation was extended until September 23, 2015.
In August 2013, the Department filed a motion to revoke probation based on evidence that Castillon failed to appear for a progress report. Probation was administratively revoked, and a bench warrant was issued. Proceedings were suspended until March 2016, when the warrant was executed and returned. Castillon admitted his probation violation after waiving his constitutional rights. On April 14, 2016, probation was reinstated on the original terms with modifications. Castillon was required to serve a 14-day jail term and to participate in drug treatment and an Individualized Treatment Program. Probation was extended until May 16, 2018.
In June 2016, the Department filed a motion to revoke Castillon's probation for failure to report. Probation was administratively revoked after Castillon failed to appear. A bench warrant was issued and returned in April 2017. Castillon waived his rights and admitted the probation violation. On May 3, 2017, probation was reinstated on the original terms with modifications. Castillon was required to serve a 14-day jail term. Probation was extended until April 18, 2019.
In February 2018, the Department filed a motion to revoke probation based on evidence that Castillon had "never reported to the Adult Probation Department." Probation was administratively revoked after Castillon failed to appear. After a bench warrant issued and was returned, Castillon waived his rights and admitted the probation violation. On February 26, 2018, probation was reinstated on the original terms with modifications. Castillon was required to serve a 10-day jail term. Probation was extended until April 26, 2019.
III. The 2019 Motion to Revoke Probation
In March 2019, the District Attorney filed a motion to revoke Castillon's probation. The People alleged Castillon violated the terms of his probation based on a July 26, 2018, felony conviction for a burglary committed in Contra Costa County. Probation was administratively revoked, and Castillon was taken into custody.
In May 2019, Castillon was referred to Intensive Supervision Court (ISC). In June, Castillon was found eligible for ISC and given a placement plan. On July 12, Castillon agreed to comply with his ISC plan and to appear at all scheduled hearings. The following week, he was released on his own recognizance for participation in a treatment program.
In August 2019, Castillon was discharged from the ISC program. A bench warrant was issued after Castillon failed to appear at a hearing. The matter was continued to October 4, 2019, for a hearing on the People's motion to revoke probation.
On October 2, 2019, Castillon filed a motion for a continuance so defense counsel could review new evidence. The People filed written opposition. At the October 4 hearing, defense counsel withdrew her request for a continuance, explaining that she had assumed erroneously that the People were alleging Castillon committed an additional violation after the July 2018 burglary conviction.
At the probation revocation hearing, the People submitted documentary evidence establishing that on July 26, 2018, Castillon was convicted of felony burglary in Contra Costa County. The court took judicial notice of the evidence, which included an abstract of judgment reflecting that Castillon was sentenced to prison. The court found that the People carried their burden of establishing a probation violation occurred, and the evidence also showed that Castillon's violation was willful.
Next, the People argued that the court should revoke probation and lift suspension on execution of Castillon's sentence for the 2012 robbery conviction because repeated attempts to rehabilitate Castillon had failed. Defense counsel argued that efforts to rehabilitate Castillon had not been exhausted. According to counsel, even though Castillon has had a difficult life, has been shot many times, and suffers from drug addiction, he made an effort to participate in a treatment program through supervision court. But counsel acknowledged that the program did not work for Castillon and he was "kicked out."
Taking a different tack, defense counsel argued that a five-year sentence was too harsh a punishment, producing evidence that in March 2019, Castillon's probation officer had recommended reinstatement of probation with a "ten-day [f]lash incarceration." In rebuttal, the People pointed out that the March 2019 recommendation did not mention Castillon's recent burglary conviction. They produced evidence that the Department's subsequent report referencing the new conviction recommended revocation of probation.
The trial court observed that in 2012, Castillon made the informed decision to plead to a strike offense against the advice of his counsel so that he could receive a suspended sentence. But he repeatedly violated probation and then incurred another felony conviction for which he went to prison. In light of this evidence, the court found that Castillon was not amenable to probation supervision and revoked his probation.
The stay of execution of Castillon's suspended sentence for the 2012 robbery conviction was lifted. He was sentenced to a five-year prison term with 395 actual days credit and 59 days good conduct credit, for a total of 454 credit days. The court also lifted the stay of a probation revocation restitution fine and advised Castillon of his appellate rights.
DISCUSSION
The Wende brief filed by appellant's counsel does not draw our attention to any issues under Anders v. California (1967) 386 U.S. 738, 744. Castillon was apprised of his right to file a supplemental brief and to request to have his counsel relieved, but he did neither. (See People v. Kelly (2006) 40 Cal.4th 106, 110.) Following Wende guidelines, we have conducted an independent review of the record summarized above and conclude there are no meritorious issues to be argued on appeal.
Because Castillon pled guilty to the underlying conviction, the scope of reviewable issues is restricted to matters based on constitutional, jurisdictional, or other grounds going to the legality of the proceedings leading to the plea. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896.) The record shows that the trial court's admonitions to Castillon conformed to the requirements of Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. Castillon knowingly, intelligently and voluntarily waived his rights and understood the consequences of his 2012 guilty plea. (See People v. Howard (1992) 1 Cal.4th 1132, 1178.)
The record also supports revocation of probation. (§ 1203.2.) "We review a probation revocation decision pursuant to the substantial evidence standard of review [citation] and great deference is accorded the trial court's decision." (People v. Urke (2011) 197 Cal.App.4th 766, 773.) Here, the trial court's decision is supported by undisputed evidence of repeated probation violations culminating in the 2018 violation for incurring a felony burglary conviction for which a prison sentence was imposed.
Castillon was at all times represented by competent counsel who protected his rights and interests.
The sentence is consistent with Castillon's 2012 plea agreement and is authorized by law. Castillon was given actual time and conduct credits for time served.
Our independent review discloses no issue requiring further briefing.
DISPOSITION
The judgment is affirmed.
/s/_________
TUCHER, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
BROWN, J.