Opinion
D057907 Super. Ct. No. SCD226383
08-31-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSUE CASILLAS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Eugenia A. Eyherabide, Judge. Affirmed.
Josue Casillas pleaded guilty to five counts of robbery (Pen. Code, § 211; counts 1, 2, 3, 5 and 7) and two counts of attempted robbery (§§ 664, 211; counts 4 and 6), with use of a deadly or dangerous weapon (a knife) (§ 12022, subd. (b)(1)) in all of the counts except count 1 and with the offenses in counts 1 through 4 being committed when he was 16 years of age or older (Welf. & Inst. Code, § 707, subd. (d)(1)). The court sentenced Casillas to seven years eight months in prison: the three-year middle term on count 2, plus one year for the knife use; one year (one-third the middle term) on count 1; one year (one-third the middle term) plus four months (one-third the term) for knife use on counts 3 and 5; and concurrent terms on counts 4, 6 and 7. Casillas appeals, contending the court abused its discretion by denying probation. We affirm.
All further statutory references are to the Penal Code unless otherwise specified.
Respondent contends Casillas forfeited the right to raise this contention. Respondent asserts Casillas did not object to the sentencing court's findings regarding the factors supporting the probation denial and did not argue that the denial was an abuse of discretion. There was no forfeiture. The statement in mitigation requested probation and explained why the criteria affecting probation (Cal. Rules of Court, rule 4.414) supported the request. At the sentencing hearing, defense counsel repeated the request.
All further rule references are to the California Rules of Court.
BACKGROUND
This factual background is derived from the probation report. The factual basis for the plea was the following: Casillas unlawfully took personal property from another by force or fear and committed the crime at age 16 or older (count 1); unlawfully took personal property from another and personally used a knife and was age 16 or older when he committed that crime (counts 2 and 3); unlawfully attempted to take personal property from another by force or fear and committed the crime when he was age 16 or older and used a knife (count 4); unlawfully took personal property from another by force or fear and used a knife (counts 5 and 7); and unlawfully attempted to take personal property from another by force or fear and used a knife (count 6).
The crimes occurred between October 2009 and March 2010, when Casillas was 17 years old (counts 1 through 4) and 18 years old (counts 5 through 7).
On October 27, 2009, Casillas demanded money from a motel desk clerk (count 1). Casillas's hand was in his sweatshirt pocket and it appeared that he might have been holding a gun. The clerk gave Casillas $396.24.
On October 30, 2009, Casillas demanded money from a Valero gas station clerk (count 2). Casillas lifted his sweatshirt, displaying a large knife in the waistband of his pants. The clerk gave Casillas $585 from the cash register. Casillas also took a pack of gum.
On November 1, 2009, Casillas pulled a large kitchen knife from his waistband and demanded money from a Circle K clerk (count 3). The clerk placed $55 from the register on the counter. Casillas took the money, a bag of corn chips and a carton of cigarettes.
On November 2, 2009, Casillas went to a Shell gas station wearing a sweatshirt with the hood pulled low over his face (count 4). He selected a bag of chips and handed the clerk a $1 bill. As the clerk was giving him change, Casillas pulled a mask over his face, pulled what appeared to be a semiautomatic handgun from his waistband and demanded "the money." The clerk, who knew Casillas was a regular customer, thought Casillas was joking, and said "what money." Casillas pointed the gun at the clerk and again demanded money. The clerk said he had none. Casillas put the gun back in his waistband and said, "Okay, I'll get you next time." Several hours later, a discarded BB gun was found less than a mile away. The BB gun matched the clerk's description of the handgun used in the attempted robbery.
The probation report's description of count 4 does not mention knife use, although Casillas admitted using a knife in that offense.
On March 5, 2010, Casillas returned to the Circle K (count 5). He lifted his sweatshirt, displayed a large butcher knife tucked into his waistband and demanded money. The clerk threw $110 on the counter. Casillas took the money and a soda and left.
On March 12, 2010, Casillas returned to the Valero gas station, took out a knife and demanded money from the clerk (count 6). The clerk said he would not give him money and grabbed a stick to defend himself. Casillas threatened to jump over the counter and cut the clerk. Casillas demanded money a few more times before leaving the store.
A few minutes later, Casillas returned to the Circle K (count 7). He pulled out a knife and demanded money from the clerk. The clerk placed approximately $60 on the counter. Appellant took the money, a pack of cigarettes, a candy bar and an ice cream bar.
DISCUSSION
Casillas admitted using a deadly or dangerous weapon in all counts except count 1. "Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to . . . [¶] [a]ny person who used, or attempted to use, a deadly weapon upon a human being in connection with the perpetration of the crime of which he or she has been convicted." (§ 1203, subd. (e)(2).) "If the defendant comes under [this] statutory provision . . . , the court should apply the criteria in [rule 4.413](c) to evaluate whether the statutory limitation on probation is overcome; and if it is, the court should then apply the criteria in rule 4.414 to decide whether to grant probation." (Rule 4.413(b).)
Here, the court did not expressly discuss the criteria in rule 4.413(c).
"The standard for reviewing a trial court's finding that a case may or may not be unusual is abuse of discretion. [Citation.] The standard is the same for review of an order granting probation. 'Probation is an act of clemency which rests within the discretion of the trial court, whose order granting or denying probation will not be disturbed on appeal unless there has been an abuse of discretion.' [Citation.]. . . [¶] Our function is to determine whether the respondent court's order is arbitrary or capricious, or ' "exceeds the bounds of reason, all of the circumstances being considered." ' [Citation.] The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citations.]" (People v. Superior Court (Du)(1992) 5 Cal.App.4th 822, 831.)
In the instant case, the court read and considered the probation report, the statement in aggravation, the statement in mitigation and 14 letters of support attached to the statement in mitigation. The court also listened to Casillas's oral promise to comply with the terms of probation. In denying probation, the court cited Casillas's numerous "bad" and "scary" armed robberies (rule 4.414(a)(1), (2)); the fear he instilled in the victims (rule 4.414(a)(4)); his significant prior criminal record consisting of three misdemeanor true findings, one of which was for possessing a weapon (rule 4.414(b)(1)); the likelihood he would be a danger to others if not imprisoned (rule 4.414(b)(8)); and his use of drugs and failure to remain law abiding while on juvenile probation (rule 4.414(b)(2)). The court weighed those factors against Casillas's otherwise good performance on juvenile probation (ibid.),the positive statements in the probation report and the letters of support and his expressed willingness to comply with the terms of probation (rule 4.414(b)(3)).
Casillas contends the court abused its discretion by relying on the above criteria because he did not hurt the victims with the knife, his prior record consists of only three misdemeanors, his failure to remain law-abiding resulted from his drug problem and there is no evidence he would likely be a danger to others if not imprisoned. The fact that a defendant was armed is a criterion supporting denial of probation; moreover, Casillas threatened to cut the victim in count 6. (Rule 4.414(a)(2).) While Casillas's criminal history consists only of misdemeanor true findings, during the latest offense he pointed a gun at the victim. (Rule 4.414(b)(1).) While Casillas's ongoing substance abuse, despite treatment, was a factor in his failure on probation, it was not the only factor. Other factors were his desire to obtain money, even through illegal means, and his failure to appreciate the consequences of his actions. (Rule 4.414(b)(2).) The fact that Casillas committed a string of armed robberies, along with his threat to cut one of the victims, and his use of a gun in one of his prior offenses, supports the conclusion he would likely be a danger to others if not imprisoned. (Rule 4.414(b)(8).)
The court stated Casillas "[s]cared the heck out of these people, making people not want to work in those stores." Casillas claims this statement neglects the fact that one of the victims thought Casillas was joking, and there is no basis for the assumption the victims no longer wanted to work in the stores. Rather than a factual finding, the statement was an observation that the crimes were accomplished "by means of force or fear" (§ 211) and that clerks at gas stations, convenience stores and similar establishments are all too often victims of robberies.
Casillas also complains the court believed it could not grant probation because there were too many robberies. The court stated: "This is in no way a probation case. . . . Too many robberies. Too many armed robberies, scary ones that the court couldn't possibly grant you probation in this case." This statement does not show the court believed the number of robberies constituted an absolute bar to probation. Rather, it shows the court properly considered "[t]he nature, seriousness, and circumstances of the crime[s]" (rule 4.414(a)(1)) as a factor militating against a probation grant.
Casillas argues the sentencing court failed to appreciate the lower level of culpability arising from his youth, which meant that his brain was still developing and he was susceptible to peer pressure. The court did, in fact, mention peer pressure. The statement in mitigation cited Casillas's youth and lack of sophistication. The court read the statement in mitigation; its failure to make express mention of Casillas's youth does not mean the court failed to consider it.
Casillas also argues the court failed to appreciate the likelihood he would succeed on probation, given his attitude and extensive support. As noted above, however, the court listened to Casillas's promise to comply with probation and read the positive statements in the probation report, the statement in mitigation and the attached letters. The court did not abuse its discretion by denying probation.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR:
HALLER, Acting P. J.
IRION, J.