People v. Casillas CA1/2 ( 2022 )


Menu:
  • Filed 1/19/22 P. v. Casillas CA1/2
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
    FIRST APPELLATE DISTRICT
    DIVISION TWO
    THE PEOPLE,
    Plaintiff and Respondent,
    A162338
    v.
    SALVADOR CASILLAS, JR.,                                                (Solano County
    Super. Ct. No. FCR345030)
    Defendant and Appellant.
    Defendant Salvador Casillas, Jr. appeals from his sentencing on the
    ground that the trial court failed to order a supplemental probation report
    before imposing sentence. Finding no prejudice, we affirm the judgment.
    FACTUAL AND PROCEDURAL BACKGROUND
    Defendant was charged with two felony counts of stalking (Pen. Code,1
    § 646.9, subd. (b)), 18 misdemeanor counts of disobeying a domestic relations
    court order (§ 273.6, subd. (a)), two misdemeanor counts of making annoying
    phone calls (§ 653m, subd. (b)), and one misdemeanor count of battery (§ 243,
    subd. (e)(1)). The alleged victim was his former girlfriend, G.K.
    1   All statutory references are to the Penal Code.
    1
    Defendant entered a plea of no contest to one count of felony stalking,
    with a maximum sentence of four years in state prison.2 The remaining
    counts were dismissed with a Harvey3 waiver, and no promises were made as
    to the sentence.
    Sentencing was initially scheduled for February 3, 2020, but was
    continued multiple times, first due to defense counsel’s motion to withdraw
    (which was granted) and, later, at the requests of new defense counsel.
    Defendant was eventually sentenced on February 26, 2021 to the midterm of
    three years in state prison.
    The Underlying Offenses
    We draw the essential facts of the offense from the probation
    presentence report prepared in early February 2020.
    G.K. ended a three-year relationship with defendant, moving to a
    location with her elderly mother that she believed defendant could not find.
    She feared for her safety after ongoing incidents of domestic violence
    throughout her relationship with defendant. Defendant then “continuously
    harassed” her with “pervasive” phone calls. He used tracking technology to
    track her whereabouts, and “identity hiding applications” on the phone he
    used to harass her.
    2 There were two felony counts of stalking. Count 1 alleged that
    between April 7 through April 23, 2019, defendant “did willfully, maliciously,
    and repeatedly follow and did willfully and maliciously harass G.K., and
    made a credible threat with the intent that she be placed in reasonable fear
    for her safety and the safety of her immediate family,” and that defendant
    was “subject to a temporary restraining order, injunction and other court
    order prohibiting the above described behavior against G.K.” Count 2 alleged
    the same conduct, but for the earlier period between March 1, 2019 and April
    6, 2019, and when there was no court order.
    3   People v. Harvey (1979) 
    25 Cal.3d 754
    .
    2
    On March 26, 2019, G.K. met with defendant, because he said that if
    she would see him, he would agree to end their relationship. When G.K.
    arrived, defendant was “ ‘acting extremely weird.’ ” He told her he needed to
    make a phone call and briefly left the vehicle where he and G.K. had been
    sitting and having a conversation. Moments later, Rio Vista police arrived,
    with sirens and lights. Defendant jumped out of the vehicle and yelled that
    G.K. was holding him at gunpoint in the vehicle, causing the police to place
    G.K. under arrest. His allegation against G.K. was unsubstantiated, and no
    charges were filed against her. G.K. later told police she knew then that she
    had been “set . . . up” by defendant.
    On April 2, 2019, defendant and G.K. each filed for temporary
    restraining orders; only G.K.’s was granted. Even though his temporary
    restraining order had been denied, defendant tried to “serve” the denied order
    on G.K. in a further effort to harass her.
    Although defendant was served in person on April 7, 2019, with the
    restraining order issued by the court to protect G.K., he did not stop
    contacting G.K. or her mother, who was also protected under the court order.
    On April 10, 2019, G.K. informed police that defendant was violating
    the restraining order. She indicated that as of that date he had harassed her
    “at least 150 times by continuously calling and texting her mother’s cell
    phone.” G.K. was so afraid that she slept with her clothes on and armed with
    a firearm, and had hired a security detail to escort her to and from court.
    Between April 11 and April 21 alone, G.K. reported at least 250 missed calls
    and text messages from defendant to her mother’s phone.4
    4 These contacts in violation of the restraining order included the
    following: on April 13, defendant sent text messages to a person “connected”
    to G.K. with a picture of the front of her residence and derogatory names; on
    April 14, there was a text message to G.K.’s mother’s phone stating “come out
    3
    On April 23, 2019, G.K.’s mother heard a strange noise outside in the
    middle of the night; she looked through the blinds and saw flames coming
    from the side of the garage. A witness reported that defendant’s son was
    “lurking around the complex sometime before the fire was set.”
    Later on in the morning of April 23, defendant was arrested at Family
    Court where he had been ordered to appear.
    Defendant told police G.K. was “crazy” and “lying to him.” He stated,
    “’I love [G.K.] What she did was wrong. She cannot just walk out on me like
    that. It has to do with the way she went about it. If [G.K.] would have told
    me, ‘Fuck you, I am leaving,’ it would have been a different story. She
    planned this since November. She used me and fucked me. None of it meant
    anything.” He blamed G.K. He admitted he had his son try to serve the
    temporary restraining order that had been denied. He denied making calls to
    G.K. or that he had access to license plate technology. He denied calling G.K.
    on April 21. He accused G.K. of having mental health issues and “repeatedly
    denied harassing” her.
    On April 23, defendant’s residence was searched pursuant to a
    warrant, and officers found the phone used to make the harassing calls and
    text messages described above.
    now, and wtf”; on April 15, a text message stating “no pay day”; on April 17,
    text messages to her mother’s phone stating, “bitch, I sorry, text back and I’ll
    stop by” and “hey”; on April 21, several text messages to her mother’s phone
    stating “I want you back,” and “I need you.” G.K. answered one phone call
    and recognized defendant’s voice saying “miss you,” “sorry” and crying
    throughout the call.
    4
    DISCUSSION
    Defendant contends on appeal that the court erred in failing to order
    and consider a supplemental probation report before sentencing him on
    February 26, 2021, and that he was prejudiced as a result.
    A.    The Trial Court Erred in Not Ordering a Supplemental Report
    Section 1203, subd. (b)(1) requires, with exceptions not applicable here,
    that if a person is convicted of a felony and eligible for probation, before
    judgment is pronounced the court shall “immediately refer the matter to a
    probation officer to investigate and report to the court, at a specific time,
    upon the circumstances surrounding the crime and the prior history and
    record of the person, which may be considered either in aggravation or
    mitigation of the punishment.”
    California Rules of Court, rule 4.411(a)(2)5 requires a “supplemental
    report if a significant period of time has passed since the original report was
    prepared.” The Advisory Committee Comment to rule 4.411 states:
    “Subdivision (a)(2) is based on case law that generally requires a
    supplemental report if the defendant is to be resentenced a significant time
    after the original sentencing, as, for example, after a remand by an appellate
    court, or after the apprehension of a defendant who failed to appear at
    sentencing. The rule is not intended to expand on the requirements of those
    cases.” The Advisory Committee comment continues that “The rule does not
    require a new investigation and report if a recent report is available and can
    be incorporated by reference and there is no indication of changed
    circumstances. This is particularly true if a report is needed only for the
    Department of Corrections and Rehabilitation because the defendant has
    5   All further references to rules are to the California Rules of Court.
    5
    waived a report and agreed to a prison sentence. If a full report was
    prepared in another case in the same or another jurisdiction within the
    preceding six months, during which time the defendant was in custody, and
    that report is available to the Department of Corrections and Rehabilitation,
    it is unlikely that a new investigation is needed.” Therefore, we look to case
    law to determine what constitutes a “significant period of time” requiring a
    supplemental report.
    At least one court has concluded that a “period of more than six months
    may constitute a significant period of time.” (People v. Dobbins (2005) 
    127 Cal.App.4th 176
    , 179-181 (Dobbins).) In Dobbins, there was an eight-month
    delay between the original probation report (which resulted in defendant
    being sentenced to probation) and the subsequent sentencing hearing at
    which the court found defendant violated probation, revoked probation, and
    imposed a previously suspended 16-month sentence. For two of those months
    after the initial sentencing, Dobbins had been out of custody. The Court of
    Appeal in Dobbins concluded that on these facts the trial court erred by not
    ordering a supplemental or updated report. (Id. at p. 181.)
    Here, defendant was out of custody during the year his sentencing was
    continued. The Attorney General has not offered any justification for the
    trial court’s failure in not ordering and reviewing an updated report. We can
    find no justification in the record and conclude that it was error.
    B.    Reversal is Not Warranted Because There is No Prejudice
    A trial court’s error in failing to order a supplemental report is a state
    law error only, and thus our review is governed by the Watson standard of
    harmless error. (Dobbins, supra, 127 Cal.App.4th at p. 182, citing People v.
    Watson (1956) 
    46 Cal.2d 818
    , 836.) That means that we will not reverse the
    judgment unless defendant establishes there is a reasonable probability he
    6
    would have obtained a more favorable result if a supplemental report had
    been prepared. (Dobbins, supra, at p. 182.)
    1.    The Presentence Report
    Considering the “criteria affecting probation,” under rule 4.414, the
    probation officer observed that “[t]he nature, seriousness, and circumstances
    of the crime as compared to other instances of the same crime appear
    significantly elevated in seriousness given the large number of violations of
    the Court’s orders in addition to the sustained and pervasive harassment.”
    The probation officer “also noted that during these events, [defendant]
    utilized the Rio Vista Police in March 2019 to escalate the harassment of the
    victim.” Additionally, the presentence report concluded that defendant
    “inflicted significant emotional injury upon the victim.”
    In considering circumstances in aggravation under rule 4.421(b), the
    probation officer stated that “defendant has engaged in violent conduct that
    indicates a serious danger to society.” The presentence report continued:
    “The defendant’s behavior throughout this series of events associated with
    the instant offense is egregious and indicative of a substantial public safety
    concern. Though he has a limited history of criminal conduct, it is noted that
    his one prior was for domestic violence, demonstrating a pattern of family
    violence related behavior that has apparently gone undetected and/or
    unreported.”6 Further, “[w]hen confronted about his behavior, [defendant]
    largely minimized his role in the events leading up to his arrest and
    maintained his narrative that the victim pulled a gun on him in Rio Vista.”
    6The probation officer was referring to a “misdemeanor conviction for
    domestic violence over fifteen years ago,” for which there was “no record of
    probation performance” given the age of the conviction.
    7
    The report continued, “It is that the defendant has a limited history of
    criminal conduct that probation appears even remotely reasonable in this
    matter. It is also noted that it appears the defendant has not attempted to
    contact the victim since the date of his arrest on 4/23/19. Nonetheless, a
    recommendation for imprisonment was heavily considered and would be
    justifiable. Given the highly marginal nature of appropriateness, it will be a
    highly guarded recommendation for probation with significant restrictions
    and a lengthy probationary period. . . .” (Italics added.)
    2.    The Sentencing Hearing
    At the sentencing hearing on February 26, 2021, the court heard from
    the victims. G.K. and her mother provided written statements. In her victim
    impact statement, G.K.’s mother described the toll defendant’s conduct had
    taken on her “mentally, emotionally, physically, financially and socially,” as
    well as G.K.’s mother having to experience the “worst nightmare for a mother
    is not being able to help her child in a situation that is beyond her control.”
    G.K. appeared at the sentencing hearing and spoke at length about how
    defendant’s actions had affected her. She described being in a relationship
    with defendant that was “very manipulative, very controlling.” She
    explained: “I would tell him often, I don’t belong here. And he would tell me
    you’re not going anywhere. I tried to get out . . . because I begged him, leave
    me alone, and he wouldn’t. That’s what he said, I promise you, I give you my
    word, you will never hear from me, you will never see me again, just meet me
    for five minutes. I was so desperate at that point for him to leave me alone.”
    Describing what ensued when she agreed to meet with defendant, G.K. told
    the court, “And then . . . everything else happened. He set me up. He lied.
    . . . It was just horrible. It totally destroyed my world, my professional world,
    my personal, my family, everything. [¶] I cannot reiterate what it’s like to be
    8
    the victim of a stalker. I have hired [an attorney]. . . . [A]fter [defendant] had
    me arrested, he called me crying, saying, I am so, so sorry. I’m so sorry,
    crying. Then he texts and said, what can I do to clean this mess up. When I
    wasn’t answering, that’s when I became the enemy. That’s when I because
    the focus of his stalking and his anger.”
    G.K. told the court that she was “terrified.” “We had to move a few
    times. I’m away from my family. I don’t get to see them. I don’t get to see
    friends. I still look over my shoulder.” G.K. told the court that defendant has
    “changed me as a person. Before I was confident, happy; now I’m not like
    that anymore.”
    G.K.’s written victim witness statement contained detailed recitals of
    what she experienced, how her life was affected, and the fear defendant’s
    conduct caused her on a daily basis. She described her two-year “plan” to
    “escape” from defendant, and his relentless conduct directed toward her
    before and after she obtained a temporary restraining order. She described
    defendant calling “my job my director my corporate office,” her daughter, her
    special needs grandson, her daughter’s 92-year-old great grandmother, her
    brother who she hadn’t spoken to in years. At one point he was calling and
    texting her “close to a hundred times a day.” He was “texting pictures of my
    front door ‘saying I’m 10 feet away’ ‘it’s time to come outside.’ ” She implored
    the court, “Imagine receiving threats like this a hundred times a day. This
    put me in panic mode. Fight or flight. Hypervigilant. I was not sleeping or
    eating. I had friends drive around to make sure I could go outside safely.”
    She concluded her written statement, “There are no words to truly explain
    the torment that the Defendant has caused to myself and my family. It will
    be a lifetime of counseling and courage to heal.”
    9
    At sentencing, the district attorney argued for the maximum sentence
    of four years in state prison.
    Defense counsel argued for probation. About one month prior to
    sentencing, defense counsel filed a Mitigation Statement.7 In this
    submission, defense counsel noted that this was defendant’s first felony
    conviction, and his only other conviction was a misdemeanor from “some 17
    years prior,” “for which he completed court probation.” Defense counsel also
    stated that defendant had “abided by all court orders since arrest.”
    At the sentencing hearing, defense counsel also addressed the court.
    She reiterated that while the criminal case was pending, defendant had not
    stalked G.K. She emphasized defendant’s various obligations to his family,
    his health status, and his employment.
    But defense counsel’s comments also made clear that defendant
    continued to deny some aspects of his conduct. Counsel attached as an
    exhibit to the Mitigation Statement defendant’s application for temporary
    restraining order against G.K., filed April 2, 2019, the very application the
    superior court denied in favor of issuing a temporary restraining order
    protecting G.K. and her mother. In response to a question on the application
    form asking “[w]hat other orders are you asking for,” defendant responded,
    “[f]or [G.K.] to do jail time for the crimes she has done to me.” (Italics added.)
    Defendant’s son spoke on behalf of his father at the sentencing hearing,
    stating that his father was a “great man” and a “real great guy,” and asked
    for leniency.
    After hearing from the parties and the victims, the court stated that it
    had “read these reports a number of times, and considered what’s in them,
    7One of the continuances in defendant’s sentencing date was based on
    his counsel’s desire to have additional time to prepare this statement.
    10
    which includes the statements from [G.K.] and her mother, includes the
    defendant’s statement, where he asks the Court to grant probation,
    indicating that he’s the sole provider in his home, and that he’s got medical
    issues, talks about his future plans. So I’ve looked at all of that, considered
    what both lawyers have said today.”
    The court then said it was denying probation “because of the
    seriousness of the offense as outlined in this case as related to me by [G.K.],
    what I know about this offense. I just don’t think [defendant will] be
    successful on probation.”
    The court sentenced defendant to the midterm of three years in state
    prison, explaining, “The mitigating factors that I’ve taken into your account
    are the defendant’s health situation, his lack of a serious criminal history,
    and the impact of imprisonment on him.
    “However there are circumstances in aggravation, including the
    conduct of the defendant in the offense, which I find to be serious, indicating
    the danger to society and to the victim in this case.
    “And based on that, I find the aggravating and mitigating factors
    balance each other out, which is why I’ve chosen the midterm of three years.”
    3.    There was No Prejudice
    Defendant contends he was prejudiced because of “[t]wo harms” that
    flowed from the trial court’s error. First, a supplemental probation report
    “likely would have provided evidence confirming defense counsel’s argument”
    that defendant had not made any attempt to contact the victims in the year
    since the report was written, and that “affirmation” would have made it
    “reasonably likely . . . [to] have persuaded the court to grant probation or at
    least impose the low term of imprisonment.” Second, the original report did
    not provide any “details or guidance” concerning defendant’s “performance on
    11
    a grant of probation years before.” Defendant speculates, “Assuming
    appellant successfully completed his one grant of probation,” this factor was
    “reasonably likely to persuade the trial court to impose the low-term” of
    imprisonment (2 years) rather than the midterm.
    Neither argument is persuasive.
    As to the first alleged harm, no one—not the victims, not the
    prosecutor—ever contested at the sentencing hearing or otherwise defense
    counsel’s report that defendant had not contacted the victims in the year
    since the original presentence report was prepared. Defense counsel
    mentioned defendant’s non-contact with G.K. in the Mitigation Statement,
    and stated it again at sentencing. In short, this fact was not kept from the
    court. And even had this apparent fact been stated in a supplemental
    probation report, in addition to in defendant’s own uncontested statements, it
    is not reasonably probable that it would have made a difference in the
    sentencing.
    As to defendant’s second “harm”—the asserted lack of information
    about the grant of probation “years before”—this was not the result of the
    trial court’s error in not requesting an updated presentence report. The
    reference to a grant of misdemeanor probation in 2003 was in the original
    presentence report, and the probation officer noted at the time of its
    preparation that records were unavailable due to the age of the conviction.
    Defendant amplified in his Mitigation Statement that this was “court”
    probation, which we take to mean not supervised by the probation office, and
    no one contested that assertion, either. Nor is the argument persuasive. It is
    a stretch to see how defendant’s conduct on a court probation sentence in a
    17-year-old misdemeanor conviction so remote that the probation officer did
    not find it to be an aggravating factor for this sentence, makes it reasonably
    12
    probable that the trial court would have reduced the sentence here.
    Regardless how defendant conducted himself on probation on the
    misdemeanor, he committed even more serious conduct in felony stalking
    G.K. 17 years later. In addition, the underlying fact of the misdemeanor
    conviction itself (leaving aside how defendant performed on court probation)
    did not figure much in the judge’s sentencing decision here; if anything, the
    court found defendant’s “lack of a serious criminal history” to be a mitigating
    factor. (Italics added.)
    In sum, the court was aware of all of the arguments that might militate
    in favor of a lesser sentence or probation, and defendant has failed to show
    prejudice from the failure to order a supplemental presentence report.
    DISPOSITION
    The judgment is affirmed.
    13
    _________________________
    Miller, J.
    WE CONCUR:
    _________________________
    Richman, Acting P.J.
    _________________________
    Kline, J.*
    A162338, People v. Casillas
    *Assigned by the Chief Justice pursuant to article VI, section 6 of the
    California Constitution.
    14
    

Document Info

Docket Number: A162338

Filed Date: 1/19/2022

Precedential Status: Non-Precedential

Modified Date: 1/19/2022