From Casetext: Smarter Legal Research

People v. Castillo

Court of Appeals of California, Fourth District, Division Two.
Nov 3, 2003
E032825 (Cal. Ct. App. Nov. 3, 2003)

Opinion

E032825.

11-3-2003

THE PEOPLE, Plaintiff and Respondent, v. ANTONIO ORTIZ CASTILLO, Defendant and Appellant.

Dabney B. Finch, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Anthony Da Silva and Erika Hiramatsu, Deputy Attorneys General, for Plaintiff and Respondent.


Defendant unsuccessfully challenges his three-year prison term.

FACTUAL AND PROCEDURAL BACKGROUND

On July 24, 2002, when Sherry Johnston got off a bus at the Montclair Transcenter in San Bernardino County she left her wallet on the bus seat. Passenger Roberto Paredes, who was getting off the bus behind Ms. Johnston, saw defendant take the wallet and leave the bus. After Paredes told the bus driver what he had seen, they both called after Ms. Johnston, "Hes got your wallet." Ms. Johnston checked and discovered her wallet was missing. She and Paredes followed defendant who was walking very quickly. Ms. Johnston repeatedly asked defendant to return the wallet, but he ignored her.

An unidentified man caught defendant and turned him around as Paredes arrived. The bus driver, who had followed defendant in the bus, got off to talk to him. Paredes and the bus driver asked defendant to return Ms. Johnstons wallet. Defendant emptied his pockets and said he did not have anything. When Paredes told defendant to return the wallet or he would call the police, defendant turned and ran. Paredes called 911 from his mobile phone and gave the dispatcher a detailed description of defendant. Officers arrested defendant and Paredes identified him, although defendant had removed his shirt. Defendants shirt and Ms. Johnstons wallet were never found.

Defendant testified that three days before the incident, he was released from West Valley Detention. He was in Montclair for an appointment with his probation officer when he saw Ms. Johnstons wallet and grabbed it. He did not know what to do with it when he got off the bus. He was half asleep and had his mind on the custody time he had served and the restraining order against him for felony spousal abuse. Hearing yelling and shouting and knowing he should not have taken the wallet, he dropped it and ran.

An information charged defendant with petty theft with a prior (Pen. Code, § 666) and alleged that he had suffered a prior strike conviction (Pen. Code, § 1170.12, subds. (a)-(d), § 667, subds. (b)-(i)). The court granted his motion to dismiss the strike allegation and a jury found him guilty of the charged offense. The court sentenced him to the three-year aggravated prison term.

DISCUSSION

Defendant appeals, contending the trial court abused its discretion by imposing the aggravated three-year prison term. We affirm.

"`Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in `qualitative as well as quantitative terms [citation] . . . ." (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) One aggravating factor is sufficient to support an upper term (People v. Osband (1996) 13 Cal.4th 622, 730) and a trial court may minimize or even entirely disregard mitigating factors without stating its reasons. (People v. Zamora (1991) 230 Cal.App.3d 1627, 1637.)

At the sentencing hearing, defense counsel urged the court to impose the two-year midterm for defendants felony petty theft conviction with a concurrent two-year low term for violating probation on his felony spousal abuse conviction (Pen. Code, § 273.5) since he had never before been to prison. The prosecutor objected and urged the court to impose the three-year aggravated term with a concurrent three-year midterm for the probation violation, as recommended by defendants probation report. The prosecutor argued that since defendant had been on probation for only five days following his felony spousal abuse conviction (Pen. Code, § 273.5), his "performance on probation was abysmal" and he had two prior felony convictions. The court agreed "the fact that hes on probation for just very few days and he goes out and commit[s] a new felony is a pretty good argument."

Imposing the three-year aggravated prison term, the court stated that "under the findings in the police report the circumstances in aggravation outweigh the circumstances in mitigation." The court also stated: "And again, defendant was on grant of probation at the time he committed the offense. In fact, just for a few days. His performance on his probation was unsatisfactorily [sic]. Convictions are increasing in seriousness. Arguably, I mean, the last two in [Penal Code section] 273.5 could be less serious than the theft [on] a bus, but they are numerous."

The courts statements indicate it attached aggravating significance to defendants unsatisfactory performance on probation as evidenced by his commission of the current felony theft shortly after he was placed on probation following a conviction for felony spousal abuse. California Rules of Court, rule 4.421 lists circumstances that may be considered to support an aggravated prison sentence. Rule 4.421(b)(4) and (b)(5) provide: "(b) Facts relating to the defendant, including the fact that: [¶] . . . [¶] (4) The defendant was on probation or parole when the crime was committed. [¶] (5) The defendants prior performance on probation or parole was unsatisfactory." Substantial evidence supports both of the aggravating circumstances and the trial court was entitled to act upon the finding of either one. (People v. Osband, supra, 13 Cal.4th at p. 731.)

Defendant claims there were three undisputed factors in mitigation which the court disregarded. He argues there were unusual circumstances as Ms. Johnston testified her wallet probably fell out of her bag onto the bus seat and defendants failure to return a lost item is unlikely to recur. He also argues he neither threatened nor harmed the victim and he was still sleepy and had not formed any intent regarding what to do with the wallet. None of these circumstances were raised in mitigation at the sentencing hearing and the court that imposed the sentence was familiar with the circumstances surrounding the crime as it had presided over the jury trial. Given all of the information that was before the court and considered by it, we reject defendants claim that mitigating circumstances existed which were not considered by the court.

As the foregoing indicates, the trial court stated sufficient reasons to support its sentencing choice and did not "exceed[] the bounds of reason, all of the circumstances being considered." (People v. Giminez (1975) 14 Cal.3d 68, 72.)

DISPOSITION

The judgment is affirmed.

We concur: WARD J., KING J. --------------- Notes: All further rule references are to the California Rules of Court.


Summaries of

People v. Castillo

Court of Appeals of California, Fourth District, Division Two.
Nov 3, 2003
E032825 (Cal. Ct. App. Nov. 3, 2003)
Case details for

People v. Castillo

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANTONIO ORTIZ CASTILLO, Defendant…

Court:Court of Appeals of California, Fourth District, Division Two.

Date published: Nov 3, 2003

Citations

E032825 (Cal. Ct. App. Nov. 3, 2003)