The People v. Kastner CA5

Filed 8/30/13 P. v. Kastner CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F065234 Plaintiff and Respondent, (Super. Ct. No. 1417155) v.

ASHLEY MARIE KASTNER, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A. McFadden, Judge. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Gomes, Acting P.J., Kane, J. and Detjen, J.

Appellant Ashley Marie Kastner entered a no contest plea to violating Penal Code section 289, subdivision (a)(1) (forcible sexual penetration by a foreign object).1 The court suspended imposition of sentence and placed appellant on formal felony probation, which she violated numerous times, resulting in the court revoking and reinstating probation until finally the court sentenced appellant to a six-year prison term (midterm). Appellant raises two arguments on appeal. First, she contends that the trial court violated California Rules of Court, rule 4.435(b), when it relied on appellant’s postoffense conduct in imposing the middle prison term.2 Second, she contends the court’s no-contact order was unlawful. We agree, as does respondent, that the no-contact order must be stricken, but otherwise affirm. DISCUSSION Procedural History At her original sentencing, the court suspended imposition of sentence and placed appellant on formal felony probation. Several months later, the probation officer filed a violation report with the court, after which the court released appellant and indicated the probation violation would be dismissed if she complied with the probation conditions. Two months later, another probation violation report was filed with the court, after which the court revoked and reinstated probation. Several months later, another probation violation report was filed and again the court revoked and reinstated probation. A few months later, the same scenario was repeated. A report of probation violation was filed and the court again revoked and reinstated probation. One month later, the probation officer filed yet another violation of probation report and the court set the matter for a hearing. Appellant admitted violating probation for the fourth time and the court