People v. Castrellon CA4/2

Filed 12/22/20 P. v. Castrellon 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E074886
v. (Super.Ct.No. FVA1301796)
MICHAEL ANTHONY CASTRELLON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
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INTRODUCTION
Defendant and appellant Michael Anthony Castrellon appeals from an order
denying his “invitation” to strike his Penal Code1 section 12022.53 firearm
enhancements. (§ 12022.53, subd. (h).) Appointed appellate counsel filed an opening
brief that sets forth the facts of the case and asks this court to review the record and
determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25
Cal.3d 436 (Wende); Anders v. California (1967) 386 U.S. 738 (Anders).) We affirm.
PROCEDURAL BACKGROUND
A jury found defendant guilty of first degree murder (§ 187, subd. (a), count 1)
and found true firearm enhancement allegations under 12022.53, subdivisions (b), (c),
and (d). On March 11, 2016, a trial court sentenced him to 25 years to life on count 1 and
a consecutive term of 25 years to life on the section 12022.53, subdivision (d)
enhancement, for a total of 50 years to life in state prison. The court stayed the sentences
on the other firearm enhancements.
Defendant appealed his conviction, and this court affirmed the judgment. (People
v. Castrellon (July 3, 2019, E065592) [nonpub. opn.].) Following his appeal, the matter
was remanded for the court to consider whether to strike any or all of the firearm
enhancements.
On January 9, 2020, defendant filed a document entitled “Invitation to Strike
Enhancement Pursuant to Penal Code section 12022.53(h) and 1385.” He requested the
1 All further statutory references will be to the Penal Code unless otherwise
indicated.
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court to exercise its discretion in the interest of justice and “strike any and all firearm
enhancements,” alleging that he suffered from physical and mental health issues.
On January 10, 2020, the court held a hearing and declined defendant’s request to
strike his firearm enhancements. It stated that the sentence previously imposed would
remain. Defendant had an angry outburst and was removed from the courtroom. The
court then reimposed the same sentence.
Defendant filed a timely notice of appeal.
DISCUSSION
After the notice of appeal was filed, this court appointed counsel to represent
defendant. Counsel has filed a brief under the authority of Wende, supra, 25 Cal.3d 436and Anders, supra, 386 U.S. 738, setting forth a statement of the case, and identifying the
following potential arguable issues: (1) whether the trial court abused its discretion when
it “declined to strike the firearm enhancement altogether or otherwise consider its
discretion to impose sentence under one of the lesser firearm enhancements”; (2) whether
the trial court violated defendant’s constitutional right to be present when it announced its
resentencing decision after he was removed from the courtroom, following his outburst;
and (3) whether defense counsel rendered ineffective assistance when he declined the
court’s offer to have defendant brought back into the courtroom, without first obtaining a
valid waiver from defendant. Counsel requests that we independently review the record.
Defendant was offered an opportunity to file a personal supplemental brief, which
he has not done.
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While we understand that the appellate review procedures under Wende, supra, 25
Cal.3d 436 and Anders, supra, 386 U.S. 738, in which we review the record ourselves to
determine whether there are any arguable issues generally apply “only to a defendant’s
first appeal as of right” (People v. Thurman (2007) 157 Cal.App.4th 36, 45), we also
recognize that we still retain discretion to conduct a Wende/Anders review (see generally
Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544, fn. 7 [“The court may, of course,
find it appropriate to retain the appeal.”]). Because the matter was remanded for the
court to consider whether to strike the firearm enhancements, we exercise our discretion
to conduct an independent review of the record to determine if there are any arguable
issues resulting from the court’s hearing on the defendant’s invitation to strike the firearm
enhancement.
We have now conducted an independent review of the record and find no arguable
issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
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