People v. Castillo CA6

Filed 7/13/16 P. v. Castillo CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H041972 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1349126)

v.

RACHELLE KATHERINE CASTILLO,

Defendant and Appellant.

After admitting a violation of her probation, defendant Rachelle Katherine Castillo was ordered to serve two months in jail and probation was reinstated. On appeal, she contends that the court should have designated one of her two convictions as a misdemeanor under Penal Code section 1170.181 without the requirement of a petition for recall and resentencing. We will affirm the order. Background On March 4, 2013, pursuant to a negotiated disposition, defendant pleaded no contest to one count of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and one count of resisting, delaying, and obstructing an officer (§ 148, subd. (a)(1)). The trial court suspended imposition of sentence and placed defendant on three years’ formal probation, conditioned on a term of eight months in county jail.

1 All further statutory references are to the Penal Code except as otherwise specified. Section 1170.18, part of the “Safe Neighborhoods and Schools Act,” was enacted by the voters on November 4, 2014 in passing Proposition 47. (Proposition 47, as approved by voters, Gen. Elec. (Nov. 4, 2014).

An additional charge, possessing controlled substance paraphernalia, was dismissed, along with an enhancement allegation that she was out of custody on her own recognizance for burglary when she possessed the methamphetamine. On May 22, 2014, the court revoked probation. According to the probation officer, she had failed to report for a scheduled office appointment, she had tested positive for amphetamine in February, she had failed to pay victim restitution or the previously ordered fines and fees, and she had failed to provide proof of enrollment in a substance abuse counseling program. On November 5, 2014, section 1170.18 became effective following the passage of Proposition 47 by the voters the previous day. On November 20, 2014, defense counsel announced that he had “a petition in hand” to reduce defendant’s offenses to misdemeanors under Proposition 47, given his understanding that he “cannot have this amended orally.”2 A hearing took place five days later, at which defendant admitted violating probation. The court reinstated probation and continued the matter for resolution of the Proposition 47 petition. At the continued hearing on December 19, 2014, the parties and the court discussed “what it means to be currently serving a sentence under . . . [section 1170.18],” as applied to several defendants then before the court. Defense counsel argued that there had to be an entry of final judgment for the filing of a petition to be required; a person on probation with imposition or execution of sentence suspended, on the other hand, has not had a “final judgment of conviction” entered and should not be viewed as “currently serving a sentence” within the meaning of section 1170.18. A probationer therefore was automatically entitled to a reduced sentence without the necessity of a petition.