The People v. Castillo CA4/2

Filed 9/6/13 P. v. Castillo CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E056490
v. (Super.Ct.No. RIF135543)
JESUS ALBERT CASTILLO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge.
Affirmed as modified with directions.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney
General, and Peter Quon, Jr., and Seth M. Friedman, Deputy Attorneys General, for
Plaintiff and Respondent.
1
Defendant Jesus Albert Castillo’s original sentence required him to pay a $1,000
restitution fine (Pen. Code, § 1202.4) and a $1,000 parole revocation restitution fine (Pen.
Code, § 1202.45.)1 In a previous appeal, we modified various aspects of his conviction
and remanded for resentencing. (People v. Castillo (Sept. 27, 2011, E051070 [nonpub.
opn.].) On remand, the trial court sentenced defendant to pay a $2,000 restitution fine
and a $2,000 parole revocation restitution fine. Defendant now contends that the increase
violated state double jeopardy principles. (See People v. Hanson (2000) 23 Cal.4th 355,
360-367.)
The People concede the double jeopardy violation. They merely argue that
defendant’s trial counsel forfeited the issue by failing to raise it below.
If defense counsel did not forfeit the issue, we can reach it on the merits. But if
she did, defendant has a slam-dunk claim of ineffective assistance of counsel. Failure to
object to a sentence that violates double jeopardy falls below an objective standard of
reasonableness; moreover, it is manifestly prejudicial. (See generally People v. Vines
(2011) 51 Cal.4th 830, 875-876.) And “[i]f, indeed, double jeopardy applied, we can
conceive of no legitimate tactical reason for failing to raise it.” (People v. Morales
(2003) 112 Cal.App.4th 1176, 1185 [Fourth Dist., Div. Two].)
1 Defendant’s request for judicial notice of a portion of the reporter’s
transcript from his previous appeal is granted.
2
Defendant’s opening brief did not raise ineffective assistance of counsel.
Nevertheless, we have discretion to reach that issue in order to head off the inevitable
habeas petition. (People v. Holford (2012) 203 Cal.App.4th 155, 159, fn. 2.)
The sentence is hereby modified by reducing the restitution fine and the parole
revocation restitution fine to $1,000 each. The judgment as modified is affirmed. The
clerk of the superior court is directed to prepare an amended sentencing minute order and
an amended abstract of judgment and to forward a certified copy of the amended abstract
to the Director of the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P. J.
KING
J.
3