P. v. Esquivel CA6

Filed 3/28/13 P. v. Esquivel CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H037937 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS101023)

v.

CAITLIN ESQUIVEL,

Defendant and Appellant.

Defendant Caitlin Esquivel entered a negotiated no-contest plea to second degree robbery and grand theft. The trial court suspended imposition of sentence and placed defendant on probation with conditions. Defendant later admitted violating probation, and the trial court revoked then reinstated probation with conditions. Defendant thereafter admitted violating her probation a second time. The trial court revoked probation and imposed a three-year mid-term sentence for robbery and a consecutive eight-month term for grand theft. On appeal, defendant contends that the trial court (1) abused its discretion by refusing to reinstate her probation, and (2) erred in awarding presentence credits. The People concede the credits issue, and we agree that the concession is appropriate. We otherwise disagree with defendant. We therefore modify and affirm the judgment. BACKGROUND Defendant persuaded a man to buy her a hamburger via entering her car and going through a restaurant’s drive-through window. When the man was in the car, defendant’s

accomplice, who was hidden in the back seat, put the man in a choke hold, pressed a knife to the man’s neck, and robbed the man of his wallet. Defendant drove a car near a man to whom her accomplice had called out. When the man approached the car, the accomplice grabbed the man, pressed a knife to his stomach, and robbed the man of eight $1 bills. Defendant then drove away. In reporting to her probation officer, defendant attempted to falsify a urine sample by having a plastic baggie of urine hidden in her vagina and then tested positively for opiates and methamphetamine. For this, defendant admitted violating probation and the trial court ordered defendant committed to the Department of Corrections (CDC) for diagnosis and recommendations. The CDC recommended placement in a structured residential treatment facility for defendant’s mental health and substance abuse needs. The trial court then revoked probation, reinstated probation, and ordered defendant transferred to a residential treatment facility. Defendant completed the treatment program. Six months later, she used heroin and tested positively for the use of opiates. The trial court then revoked probation, and defendant admitted that she violated probation. At the sentencing hearing, the trial court explained as follows: “Well, there’s no doubt in my mind that you do suffer from addiction and that that was certainly part and parcel of what caused you to participate in the robberies. [¶] But the Court has before it a situation where you participated in two armed robberies. And although there was someone else probably more sophisticated, you were an active participant in that. [¶] Then we have multiple, not just one, violations of probation. We have the attempting to falsify the urine sample in November, testing positive for opiates and methamphetamine. At that point, there was a violation of probation which you admitted, received an additional 60 days. We’re back on testing positive for opiates assuming, presumably, the use of heroin. [¶] So at this point, I’m going to sentence you to the [CDC]. [¶] Going back to the original probation report, the Court finds the following factors in aggravation: