Filed 8/5/16 P. v. Ochoa CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E065650
v. (Super.Ct.No. RIF1210193)
AUSTREBERTO CASTILLO OCHOA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant, Austreberto Castillo Ochoa, pled guilty to six counts of
lewd and lascivious acts by force against four victims under the age of 14 years (counts 1,
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4-7, & 9; Pen. Code, § 288, subd. (b)(1))1 and two counts of a lewd and lascivious act
upon a child under the age of 14 (counts 10-11; § 288, subd. (a)). Pursuant to his plea
agreement, the court sentenced defendant to an aggregate term of incarceration of 62
years and ordered that he pay a $1,000 restitution fine.
After defendant filed a notice of appeal, this court appointed counsel to represent
him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d
436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case
and identifying one potentially arguable issue: whether the court erred in denying
defendant’s motion for reduction of the court-ordered restitution fine. We affirm.
I. PROCEDURAL HISTORY
On February 14, 2013, the People charged defendant by felony information with
five counts of lewd and lascivious acts by force against four victims under the age of 14
years (counts 1, 5-7, & 9; § 288, subd. (b)(1)), four counts of sexual penetration against
two of the victims who were under the age of 10 years (counts 2-4 & 8; § 288.7, subd.
(b)), and two counts of lewd and lascivious acts against a child under the age of 14
(counts 10-11; § 288, subd. (a)). The People additionally alleged defendant had engaged
in sexual offenses against multiple victims. (§ 667.61, subd. (c).)
On April 29, 2013, defendant pled guilty, as described above, pursuant to a plea
agreement. In return, the remaining counts and allegation were dismissed. As part of his
plea agreement, defendant initialed a provision which reflected: “I will be ordered to pay
1 All further statutory references are to the Penal Code unless otherwise indicated.
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a restitution fine of at least $200 and not more than $10,000.” After sentencing, the court
ordered that defendant pay a restitution fine pursuant to former section 1202.4,
subdivision (b) in the amount of $1,000.
On March 1, 2016, defendant filed a motion for modification of sentence
requesting that the restitution fine be reduced to $200 because the court failed to consider
his ability to pay the fine it ordered. The same day, the court denied defendant’s motion.
II. DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, which
he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we
have independently reviewed the record for potential error and find no arguable issues.
(People v. Villalobos (2012) 54 Cal.4th 177, 181-182 [failure to object to restitution fine
at or before sentencing forfeits contention on appeal]; id. at pp. 183-185 [where specific
restitution fine not mentioned in plea agreement, restitution fine shall be set at the
discretion of the court].)
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
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People v. Ochoa CA4/2
Combined Opinion