                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-1647

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                     Robert Castillo,
                                       Appellant.

                                 Filed August 17, 2015
                                       Affirmed
                                    Johnson, Judge

                              Ramsey County District Court
                                File No. 62-CR-14-619

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Johnson, Presiding Judge; Peterson, Judge; and Ross,

Judge.

                         UNPUBLISHED OPINION

JOHNSON, Judge

         A Ramsey County jury found Robert Castillo guilty of second-degree assault

based on evidence that he beat a former girlfriend on her head and arms with a hammer.
The jury also found Castillo to be a dangerous offender based on his prior convictions of

felony offenses. The district court sentenced Castillo to the statutory maximum sentence

of 120 months of imprisonment. Castillo argues that his sentence is too long. We affirm.

                                         FACTS

        Castillo and the victim of his assault, A.C., were involved in a romantic

relationship in 2013. During that time, A.C. was married to a man with immigration

issues, which caused A.C. and her three children to lose their home. While A.C. was

homeless, Castillo’s sister, G.C., cared for A.C.’s infant son, M.C. M.C. continued to

live with G.C. even after A.C. and her husband and other children found an apartment.

        On January 24, 2014, G.C. had company at her home in St. Paul. Castillo and his

then-girlfriend stopped by G.C.’s house. An argument ensued between G.C. and Castillo

because Castillo said that he was going to take M.C. G.C. told Castillo that he could not

take the baby and called A.C. to tell her that Castillo was trying to take the baby from her

home.

        A.C. arrived at G.C.’s house approximately an hour after receiving the telephone

call. A.C. told Castillo that she did not want him to take the baby and that, if he did so,

she would call the police. A.C. also told Castillo that he would be risking a kidnapping

charge because of the possibility that M.C. is not his son. Castillo left the room. When

he returned, he struck A.C. in the head with a hammer. A.C. fell to the floor and raised

her hands to protect her head. Castillo then hit her forearms with the hammer. Castillo

continued to hit A.C. with the hammer until G.C. chased him out of the house.

Throughout the assault, A.C. could hear the baby crying as Castillo’s girlfriend held him.


                                             2
G.C. called 911. A.C. was transported to Regions Hospital’s emergency room, where a

physician determined that she had a superficial wound to her scalp, a fractured forearm, a

fractured wrist, and a laceration on her left hand that required stitches.

          The state charged Castillo with second-degree assault, in violation of Minn. Stat.

§ 609.222, subd. 2 (2012). In April 2014, the state moved for an increased sentence

pursuant to the dangerous-offender statute, see Minn. Stat. § 609.1095, subd. 2 (2012),

due to Castillo’s prior violent felonies and an aggravating factor, namely, the presence of

a minor child during the commission of the offense.

          A bifurcated trial was held on two days in April 2014. In the first phase, the jury

found Castillo guilty. In the second phase, the jury was asked to determine whether

Castillo is a dangerous offender for sentencing purposes. Castillo stipulated that he has

seven felony criminal convictions, including the conviction in this case. The jury found

that Castillo is a danger to public safety because of his past criminal behavior and the

existence of the presence-of-a-child aggravating factor.

          At sentencing in June 2014, the state asked the district court to impose the

statutory maximum sentence of 120 months because of Castillo’s criminal history and the

aggravating factor. Castillo’s attorney asked the district court to impose a presumptive

guidelines sentence of 57 months on the ground that Castillo did not intend to harm the

child and because only one aggravating factor is present. The district court imposed the

statutory maximum sentence of 120 months, a 63-month upward departure from the

middle of the presumptive guidelines range. In explaining its departure, the district court

stated:


                                               3
              The reasons for the departure are based upon the decisions of
              the jury that were submitted to them in a separate proceeding
              after they found you guilty of the offense. The jury found
              that you are a public safety risk, that you are a dangerous and
              repeat felony offender and you’ve been convicted of at least
              three prior felony crimes. This is your seventh felony and
              you have a long history of violent offenses and the use of
              weapons on prior occasions.

                     In addition, this offense was committed in the presence
              of your son. And while, I guess, it’s speculation to try to
              figure out what impact it might have on him, if any, your son
              was there, present when all that was going on. And it’s
              difficult to figure what type of impact that’s going to have on
              him as he grows up. Certainly, the idea that you could
              commit a crime like that against the child’s mother,
              disregarding the presence of your son, I think that’s a serious
              matter.

Castillo appeals.

                                     DECISION

       Castillo argues that the district court erred by imposing the statutory maximum

sentence of 120 months. Castillo does not dispute that he is a dangerous offender or that

the district court is authorized to sentence him pursuant to the dangerous-offender statute.

He argues merely that the imposition of the statutory maximum sentence is

“disproportionate, unreasonable, and unjustifiable” in the circumstances of this case.

       The district court relied on the jury’s finding that Castillo is a dangerous offender

under section 609.1095, subdivision 2. “The dangerous-offender statute is a sentencing

statute that permits durational departures not otherwise authorized by the sentencing

guidelines.” Neal v. State, 658 N.W.2d 536, 545 (Minn. 2003). A person is a dangerous

offender if (1) the offender was at least 18 years old at the time the felony was



                                             4
committed, (2) the offender has two or more prior convictions for violent crimes, and

(3) the factfinder determines that the offender is a danger to public safety. Minn. Stat.

§ 609.1095, subd. 2. The third requirement, that a defendant is a danger to public safety,

may be based on “(i) the offender’s past criminal behavior, such as the offender’s high

frequency rate of criminal activity . . . or long involvement in criminal activity . . . ; or

(ii) the fact that the present offense of conviction involved an aggravating factor that

would justify a durational departure under the Sentencing Guidelines.” Minn. Stat.

§ 609.1095, subd. 2(2)(i)-(ii). If the requirements of section 609.1095, subdivision 2, are

satisfied, the district court may impose an upward durational departure up to the statutory

maximum sentence, even if severe aggravating circumstances are not present. Id.; Neal,

658 N.W.2d at 545-46. This court applies an abuse-of-discretion standard of review to

the length of a sentence based on the dangerous-offender statute. See Neal, 658 N.W.2d

at 546-48; see also Vickla v. State, 793 N.W.2d 265, 269 (Minn. 2011) (reviewing

sentence imposed pursuant to Minn. Stat. § 609.1095, subd. 4 (2010)).

       Castillo relies on the supreme court’s admonition in Neal that, “to avoid

disproportionate sentences, courts should use caution when imposing sentences that

approach or reach the statutory maximum sentence.” 658 N.W.2d at 546. In Neal, the

appellant was convicted of kidnapping and aggravated robbery. Id. at 541. The district

court sentenced the appellant under the dangerous-offender statute to the statutory

maximum sentence of 480 months for the kidnapping conviction and 96 months for the

aggravated-robbery conviction. Id. at 541-42. The supreme court considered whether the

sentences were excessive and unreasonable. Id. at 543. The supreme court concluded


                                             5
that the 480-month kidnapping sentence, which was more than four times the

presumptive sentence, was excessive under the circumstances of the case, in which a

victim was confined briefly in a bathroom to facilitate the aggravated robbery of a store.

Id. at 547-48. In reaching its conclusion, the supreme court compared the 480-month

sentence to sentencing departures in other kidnapping cases, which indicated that the

appellant’s sentence was unduly long. Id. The supreme court cautioned that, “when

severe aggravating circumstances are not present, imposing more than a double

durational departure under the dangerous-offender statute may artificially exaggerate the

defendant’s criminality because the defendant’s criminal record is considered twice.” Id.

at 546.

          In this case, the 120-month statutory maximum sentence for second-degree assault

is approximately twice as long as the presumptive sentencing range based on Castillo’s

criminal history score of six and an offense severity level of six. To be specific, the

applicable range is 49 to 68 months, with a mid-point of 57 months. See Minn. Sent.

Guidelines 4.A. (Supp. 2013) (sentencing guidelines grid). Accordingly, the sentence

imposed is slightly more than twice the middle of the sentencing range and slightly less

than twice the high end of the range. In any event, the record indicates that the district

court used the requisite caution when it imposed the sentence. See Neal, 658 N.W.2d at

546. The district court expressly considered the jury’s finding that Castillo is a danger to

public safety because of his past criminal behavior. See Minn. Stat. § 609.1095, subd.

2(2)(i). The district court also considered the fact that Castillo’s conviction is his seventh

felony conviction. Castillo stipulated that he has three prior assault convictions. He also


                                              6
stipulated to prior convictions for the dangerous discharge of a weapon, possession of a

firearm by an ineligible person, and second-degree controlled substance crime. Castillo

committed these offenses between 2001 and 2014. At the time of sentencing, Castillo

had been incarcerated for 11 of the previous 12 years of his life. These facts indicate that

the statutory maximum sentence is not excessive and unreasonable.

       Our review of the question whether Castillo’s sentence unfairly exaggerates his

criminality is “guided by past sentences imposed on other offenders.”              State v.

McLaughlin, 725 N.W.2d 703, 715 (Minn. 2007) (quotation omitted); see also Vickla,

793 N.W.2d at 270 (stating that “appellate court[s] may consider, among other things,

comparable sentences in departure cases to determine if a sentence is unjustifiably

disparate”). In making that comparison, we focus on sentences imposed on similarly

situated offenders. Vickla, 793 N.W.2d at 270. Our review reveals only one case with

the same offense and the same type of departure. In State v. Whisonant, No. C8-02-1227,

2003 WL 21321434 (Minn. App. June 10, 2003), review denied (Minn. Aug. 19, 2003),

this court affirmed the imposition of the statutory maximum sentence for second-degree

assault in a case in which the appellant attempted to stab the victim with a sharp object

but did not inflict any injuries. Whisonant, 2003 WL 21321434, at *3. Castillo struck

A.C. with a hammer several times on her head and arms, causing two fractures, a scalp

injury, and a flesh wound requiring stitches. Castillo ended the assault only because his

sister intervened. The district court found the assault to be a “serious matter.” We are

convinced that Castillo’s assault was at least as egregious as the assault in Whisonant and




                                             7
probably more egregious. This comparison further indicates that the statutory maximum

sentence is not excessive and unreasonable.

       In light of our review of the record and our review of a sentence imposed in a

similar case, we conclude that Castillo’s 120-month sentence is not excessive and

unreasonable. Thus, the district court did not err by imposing the statutory maximum

sentence.

       Castillo also contends that the jury’s finding of an aggravating factor does not

justify the departure.   Because we have determined that the district court properly

sentenced Castillo based on the dangerous-offender statute, we need not consider whether

the departure is justified by the presence of the aggravating factor.

       Affirmed.




                                              8
