Filed 6/30/16 P. v. Casler 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, H042864
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS111286A)
v.
GREGORY CASLER,
Defendant and Appellant.
In 2012, defendant Gregory Casler was convicted by jury of inflicting corporal
injury on a cohabitant, making a criminal threat, and battery (Pen. Code,1 §§ 273.5, subd.
(a); 422; and 243, subd. (d)). The jury also found true an allegation that defendant had
personally inflicted great bodily injury (§ 12022.7, subd. (e)). At sentencing, the court
imposed a seven-year prison sentence, suspended execution of that sentence, and granted
defendant four years probation. Defendant did not appeal that judgment.
In 2014, while on probation, defendant was charged in two new felony cases with
additional acts of domestic violence, assault, assault with a deadly weapon, and violating
a protective order (§§ 273.5; 245, subds. (a)(1), (4); and 166, subd. (c)(1)). Both times,
the prosecution filed a petition charging defendant with violating his probation based on
the new criminal charges and on other non-criminal acts. The court revoked probation.
After defendant pleaded no contest to some of the charges in the new cases, the court
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All further statutory references are to the Penal Code, unless otherwise stated.
found that he had violated his probation, lifted the suspension, and ordered that the
previously imposed seven-year sentence be executed. Defendant challenges that order in
this appeal.
We appointed counsel to represent defendant in this court. Appointed counsel
filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), which
stated the case and the facts but raised no specific issues on appeal. We notified
defendant of his right to submit written argument on his own behalf within 30 days. The
30 days have elapsed, and we have received no written argument from defendant. After
reviewing the entire record, we will conclude there is no arguable issue on appeal and we
will affirm the order lifting the suspension on the previously imposed prison sentence and
ordering execution of that sentence. We will also direct the clerk of the court to correct
clerical errors on the abstract of judgment and the minute order of the sentencing hearing.
FACTS
In December 2010, defendant and L. C. (Victim) met at a residential drug and
alcohol treatment program. They were both in recovery. Defendant was addicted to
prescription drugs. Victim abused alcohol.
Three months later, defendant moved in with Victim. Shortly thereafter,
defendant’s 17-year-old daughter (Daughter) moved in with them. Defendant and Victim
lived together for about three months and then broke up. Thereafter, defendant
maintained his sobriety, but Victim relapsed and started abusing alcohol again. After the
break up, defendant and Daughter moved out of Victim’s home, but because Daughter
preferred living with Victim, she returned to live with her.
On June 11, 2011, defendant went to Victim’s house. Defendant was angry
because Victim had broken her sobriety and was “sheltering” Daughter. He told Victim,
“If you don’t let me take my daughter, I’m going to kill you.” Defendant then punched
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Victim in the face, causing her to fall and hit her head on an unknown object. When
Victim was on the floor, defendant kicked her multiple times and said, “You don’t
deserve to live.”
Victim did not report the assault to the police, but she told her father about it.
Two days after the assault, Victim’s father asked the police to do a welfare check on
Victim. When police officers contacted Victim on June 13, 2011, they observed a golf-
ball-sized contusion on the back of her head, dried blood in her hair, a gash on her nose,
abrasions near her right eyebrow, lacerations near her right eye and on her right nostril,
and bruising and swelling of her right foot. At the hospital, Victim’s injuries were
diagnosed as (1) contusions to the back of her head, face, left foot, and right shoulder;
(2) a non-displaced fractured of her jaw; and (3) a closed head injury. Victim also
suffered post traumatic stress and required counseling.
PROCEDURAL HISTORY
Defendant was charged with three felonies: (1) inflicting corporal injury on a
cohabitant (§ 273.5, subd. (a), count 1), with an enhancement allegation that defendant
personally inflicted great bodily injury (§ 12022.7, subd. (e)); (2) battery with serious
bodily injury (§ 243, subd. (d), count 2); and (3) making a criminal threat (§ 422,
count 3). The case went to trial in May 2012. The jury found defendant guilty on all
three counts. The jury also found true the allegation that defendant personally inflicted
great bodily injury.
Defendant filed a motion for new trial, in which he argued there was insufficient
evidence to support the verdict on the criminal threats count. He contended that the
statement he had made––“You don’t deserve to live”––reflected his opinion of Victim
and was not a threat. The court denied the new trial motion.
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At sentencing, the probation department reported that defendant’s criminal history
included nine misdemeanor convictions between 1996 and 2007, the majority of which
resulted in grants of probation. His prior offenses included damaging or tapping a
telephone or cable television line (§ 591), violating a protective order (§ 273.6, subd. (a)),
public intoxication (§ 647, subd. (f)), driving under the influence (Veh. Code, § 23152,
subd. (b)), driving without a license (Veh. Code, § 12500, subd. (a)), and reckless driving
(Veh. Code, § 23103.5, subd. (a)). While this case was pending, defendant was arrested
in two separate incidents for: (1) misdemeanor theft, and (2) driving on a suspended
license and using a false registration.
The court imposed a seven-year prison sentence, which included: (1) a three-year
term for inflicting corporal injury on a cohabitant; (2) a consecutive four-year term for
the bodily injury enhancement; and (3) a concurrent two-year term for the criminal threat.
The court stayed the punishment on the battery count under section 654. The court then
found that there were “unusual circumstances” that warranted suspending execution of
the sentence and granting probation. The court granted four years probation with terms
and conditions that defendant agreed to, including one year in county jail, and no
possession or use of alcohol or other controlled substances. The court also imposed fines
and fees, including a restitution fine of $720 (§ 1202.4, subd. (b)), and reserved
jurisdiction to order victim restitution. Defendant did not appeal the judgment. At a later
hearing, the parties stipulated to victim restitution in the amount of $40,000.
On June 8, 2014, while on probation, defendant was once again arrested for
domestic violence. The prosecution filed a new felony complaint (case No. SS141456A)
charging defendant with corporal injury on a cohabitant (§ 273.5), assault with force
likely to cause great bodily injury (§ 245, subd. (a)(4)), and assault with a deadly weapon
(§ 245, subd. (a)(1)). The prosecution also charged defendant with probation violations
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(§ 1203.2) in this case based on the new criminal offenses and for possessing and
consuming alcohol.
In October 2014, defendant admitted that he had violated his probation by
possessing alcohol. The district attorney stated that she was satisfied with the admission
and would not prosecute the other alleged probation violations.
In November 2014, the prosecution filed a third felony complaint
(case No. SS142863A) charging defendant with: corporal injury on a cohabitant
(§ 273.5), assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)),
assault with a deadly weapon (§ 245, subd. (a)(1)), and 36 misdemeanor counts of
violating a protective order (§ 166, subd. (c)(1)). These new crimes occurred between
June 8 and November 4, 2014. The prosecution also filed a second petition in this case,
which charged defendant with probation violations based on his new offenses and alleged
that defendant had violated his probation by using methamphetamine in 2014.
In February 2015, defendant admitted a probation violation based on two counts of
violating a protective order. On July 20, 2015, the court held a hearing on the third
felony case (case No. SS142863A) and on the second petition alleging probation
violations. The parties entered into a plea agreement in the third felony case in which
defendant pleaded no contest to 18 counts of violating a protective order. (The remaining
counts in the third felony case were dismissed.) Based on defendant’s plea, the court
found that defendant had violated his probation in this case.
At sentencing on the probation violations on September 30, 2015, the court
revoked and terminated defendant’s probation, lifted the suspension on the execution of
his sentence, and sentenced defendant to the previously imposed seven-year prison term,
with credit for 795 days in jail (692 actual days, plus 103 good time credits). The court
also imposed the previously suspended $720 probation revocation restitution fine
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(§ 1202.44) and imposed and suspended a parole revocation restitution fine (§ 1202.45)
in the same amount.
DISCUSSION
We have independently reviewed the entire record under Wende, supra, 25 Cal.3d
436. Based upon that review, we conclude there is no arguable issue on appeal. The trial
court did not abuse its discretion when it revoked probation, lifted the suspension on
execution of defendant’s sentence, and ordered execution of the previously imposed
seven-year prison sentence after defendant admitted multiple probation violations. We
will therefore affirm the court’s September 30, 2015 order. During our review of the
record, however, we noted that the minute order of the September 30, 2015 sentencing
hearing and the abstract of judgment do not reflect the court’s disposition with regard to
count 2––battery with serious bodily injury (§ 243, subd. (d)). The jury found defendant
guilty of count 2 and the court stayed the punishment on that count pursuant to section
654. We will therefore direct the clerk of the court to amend the minute order and the
abstract of judgment to reflect the disposition on count 2.
DISPOSITION
The court’s order revoking and terminating probation, and lifting the suspension
on the execution of the previously imposed prison sentence, is affirmed. The clerk of the
court is directed to prepare (1) an amended minute order for the September 30, 2015
hearing and (2) an amended abstract of judgment. The amended minute order and
abstract of judgment shall reflect the jury’s guilty verdict on count 2 and the court’s order
staying the punishment on that count pursuant to section 654.
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_______________________________
Márquez, J.
WE CONCUR:
_____________________________________
Rushing, P. J.
______________________________________
Premo, J.
No. H042864
People v. Casler