People v. Casillas CA2/4

Filed 7/6/21 P. v. Casillas CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B306432
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA101048)
v.
ALBERTO CASILLAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Michael Villalobos, Judge. Affirmed
Sarvenaz Bahar, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
This is the second appeal by appellant Alberto Casillas
following his conviction for kidnapping, injuring a girlfriend, and
criminal threats, arising from an incident with his former
girlfriend. In our prior, unpublished opinion, People v. Casillas
(Feb. 6, 2019, B286467) (nonpub. opn.), we affirmed appellant’s
convictions but stayed his sentence on the criminal threats count
pursuant to section 654. We also remanded the case to allow the
superior court to exercise its discretion regarding whether to
strike a five-year prior serious felony conviction enhancement
(Pen. Code, § 667, subd. (a)).1
On remand, the trial court denied appellant’s motion to
strike the prior conviction. This appeal followed. Appellant’s
counsel filed an opening brief that raised no issues and requested
independent review of the record pursuant to People v. Wende
(1979) 25 Cal.3d 436 (Wende). Appellant also filed a brief,
arguing that the court erred in denying his motion to strike. We
find no error. In addition, we have conducted an independent
examination of the entire record and conclude no arguable issues
exist. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts are discussed in detail in our prior
opinion. We summarize them here as relevant to the instant
appeal. An information charged appellant with the following
counts: kidnapping (§ 207, subd. (a); count one); injuring a spouse
or girlfriend (§ 273.5, subd. (a); count two); and criminal threats
1Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2
(§ 422, subd.(a); count three). The information further alleged
that appellant had a prior strike conviction (§§ 667, subd. (d),
1170.12, subd. (b)) and a prior serious felony conviction (§ 667,
subd. (a)(1)).
A jury found defendant guilty of all counts. Following a
court trial on the prior conviction allegations, the court found
those allegations true. The court also denied appellant’s Romero2
motion to strike the prior strike, a 2010 conviction for criminal
threats (§ 422, subd. (a)).
The trial court sentenced appellant to a total term of 16
years and four months in state prison, as follows: the mid-term
of five years on count one, doubled due to the prior strike
conviction, plus an additional consecutive five-year enhancement
due to the prior serious felony conviction; a concurrent term of
two years on count two, doubled due to the prior strike
conviction; and a consecutive term of eight months on count
three, doubled pursuant to the prior strike conviction.
In his first appeal, we affirmed appellant’s convictions, but
found that the trial court should have stayed the sentence on
count three under section 654. We also remanded the case with
directions to the trial court to determine whether to strike the
five-year enhancement for appellant’s prior serious felony
conviction under section 667, subdivision (a).3 We rejected
respondent Attorney General’s argument that remand was
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
3 SB 1393, which took effect on January 1, 2019 while
appellant’s first appeal was pending, amended sections 667 and
1385 to provide trial courts with discretion to strike prior serious
felony conviction enhancements in the interest of jus tice. (Stats.
2018, ch. 1013, §§ 1, 2.)
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unnecessary, finding that the record did not clearly indicate that
the court would have declined to strike the enhancement if it had
such discretion at the time of sentencing.
On remand, the trial court held a resentencing hearing on
May 30, 2019, which appellant attended with counsel. On the
issue of striking the prior serious felony conviction, appellant
incorporated the arguments made in his prior Romero motion.
He also argued that he had not had any disciplinary issues while
in prison, had been taking self-help classes, and was continuing
his education. Appellant’s counsel stated that appellant had the
support of his family and was “on his way to correcting whatever
behavior landed him in this court.” In opposition, the prosecutor
noted that the court previously found that the conduct of the case
was “severe and warranted significant punishment.” The
prosecutor also reviewed appellant’s criminal history, including a
misdemeanor criminal threats conviction under circumstances
indicating domestic violence, followed shortly afterward by the
prior strike conviction for felony criminal threats. The prosecutor
argued that, rather than learning from these convictions,
appellant “continued to rack up additional misdemeanor
convictions,” leading to the instant case, which was consistent
with his earlier convictions involving domestic violence and
criminal threats.
The court stated it had reviewed the entire record. The
court commended appellant for “attempting to improve himself
while in prison,” but recalled that at the time of sentencing, “I
deemed this case as a very aggravated circumstance of domestic
violence.” The court noted that in the instant case, appellant
“grabbed the victim, forcefully took her from her residence, . . .
forced her in the car, . . . and threatened her during the
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kidnap[ping].” The court also found that this conduct “fit a
pattern” of domestic violence by appellant. The court noted that
it based its prior decision to deny appellant’s Romero motion to
strike the prior strike on appellant’s criminal history, coupled
with the aggravated circumstances of the instant offense.
Further, “for those same reasons, I don’t believe that it would be
appropriate to strike the 667(a) prior.” Accordingly, the court
denied appellant’s motion to strike the prior serious felony
conviction. Appellant timely appealed.
On appeal, appellant’s appointed counsel filed a brief
requesting that we independently review the record for error.
(Wende, supra, 25 Cal.3d at p. 441.) We directed counsel to send
the record and a copy of the brief to appellant, and notified
appellant of his right to respond within 30 days. Appellant filed
a responding brief on March 22, 2021.
DISCUSSION
Appellant argues that the trial court erred by relying on
the same reasoning to impose two enhancements: doubling the
sentence based on the prior strike conviction under section 667,
subdivision (d) and the five-year enhancement for the prior
serious felony under section 667, subdivision (a). We find no
error.
We review a ruling upon a motion to strike a prior felony
conviction under a deferential abuse of discretion standard.
(People v. Williams (1998) 17 Cal.4th 148, 162.) Appellant bears
the burden of establishing that the trial court’s decision was
unreasonable or arbitrary. (People v. Superior Court (Alvarez)
(1997) 14 Cal.4th 968, 977–978 [presumption that trial court acts
to achieve lawful sentencing objectives].) We do not substitute
our judgment for that of the trial court. (People v. Myers (1999)
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69 Cal.App.4th 305, 310.) “[A] trial court does not abuse its
discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it.” (People v. Carmony
(2004) 33 Cal.4th 367, 377.)
Appellant contends that a trial court “cannot use the same
fact to justify imposing more than one enhancement,” citing
People v. Flores (1981) 115 Cal.App.3d 924 (Flores). Flores is
inapplicable to this case. In Flores, the court held that the trial
court improperly imposed the upper term on a conviction for oral
copulation with a person less than 16 years of age (§ 288a, subd.
(b)(2)), based on the fact that the victim was a minor and
“particularly vulnerable.” (Id. at pp. 926-927.) Because minority
was an element of the charged offense, it could not also be
considered as a factor in aggravation. (Id. at p. 927.)
That principle does not apply here, where the issue is the
trial court’s discretion in furtherance of justice to strike prior
conviction enhancements that were otherwise properly imposed.
(See §§ 667, subds. (a), (d), 1385.) Appellant cites no authority to
support his contention that the court could not consider the same
facts as a basis to decline to strike both a prior strike and a prior
serious felony conviction. (See, e.g., People v. Williams, supra, 17
Cal.4th at p. 161 [finding that when exercising discretion under
section 1385, “the court in question must consider whether, in
light of the nature and circumstances of [the defendant’s] present
felonies and prior serious and/or violent felony convictions, and
the particulars of his background, character, and prospects, the
defendant may be deemed outside the statutory scheme’s spirit,
in whole or in part”].)
The record reflects that the trial court weighed the
competing factors before denying appellant’s motion to strike the
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prior serious felony conviction. Appellant has therefore failed to
establish an abuse of discretion justifying reversal.
In addition, we have examined the entire record and are
satisfied no arguable issues exist in the appeal before us, and
that appellant has received effective appellate review of the
judgment entered against him. (Smith v. Robbins (2000) 528
U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 110; Wende,
supra, 25 Cal.3d at p. 443.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
WILLHITE, J.
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