Filed 8/30/13 P. v. Kastner CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065234
         Plaintiff and Respondent,
                                                                                (Super. Ct. No. 1417155)
                   v.

ASHLEY MARIE KASTNER,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A.
McFadden, Judge.
         Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, William K. Kim and
Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Gomes, Acting P.J., Kane, J. and Detjen, J.
       Appellant Ashley Marie Kastner entered a no contest plea to violating Penal Code
section 289, subdivision (a)(1) (forcible sexual penetration by a foreign object).1 The
court suspended imposition of sentence and placed appellant on formal felony probation,
which she violated numerous times, resulting in the court revoking and reinstating
probation until finally the court sentenced appellant to a six-year prison term (midterm).
       Appellant raises two arguments on appeal. First, she contends that the trial court
violated California Rules of Court, rule 4.435(b), when it relied on appellant’s
postoffense conduct in imposing the middle prison term.2 Second, she contends the
court’s no-contact order was unlawful. We agree, as does respondent, that the no-contact
order must be stricken, but otherwise affirm.
                                       DISCUSSION
Procedural History
       At her original sentencing, the court suspended imposition of sentence and placed
appellant on formal felony probation. Several months later, the probation officer filed a
violation report with the court, after which the court released appellant and indicated the
probation violation would be dismissed if she complied with the probation conditions.
Two months later, another probation violation report was filed with the court, after which
the court revoked and reinstated probation. Several months later, another probation
violation report was filed and again the court revoked and reinstated probation. A few
months later, the same scenario was repeated. A report of probation violation was filed
and the court again revoked and reinstated probation. One month later, the probation
officer filed yet another violation of probation report and the court set the matter for a
hearing. Appellant admitted violating probation for the fourth time and the court

1      Unless otherwise indicated, all further statutory references are to the Penal Code.
2     Unless otherwise indicated, all further references to rules are to the California
Rules of Court.



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thereafter sentenced appellant to a six-year prison term (midterm sentence), ordered her
to register under section 290 upon her release, and reserved jurisdiction concerning
victim restitution.
       At sentencing, the trial court did not mention anything about contact with the
victim, but the abstract of judgment states “Do not contact victim.”

The Trial Court Did Not Err in Considering Appellant’s Performance on Probation
Before the Final Reinstatement of Her Probation, But Did Err to the Extent it
Considered Her Performance on Probation After the Final Reinstatement of Her Probation

       Rule 4.435(b)(1) states that when sentencing on revocation of probation:

       “The length of the sentence must be based on circumstances existing at the
       time probation was granted, and subsequent events may not be considered
       in selecting the base term .…”
       The court sentenced appellant to prison after she admitted a fourth violation of
probation. At the sentencing hearing, the probation officer and the prosecutor
emphasized her repeated violations of the terms and conditions of probation as well as
her failure to heed warnings regarding the consequences of her failure to comply with the
terms imposed by the court. Defense counsel asked the court to impose the mitigated
term, pointing out that appellant had no criminal history. At sentencing, the court noted
that other than lack of criminal history, there was nothing mitigating about the offense or
appellant. As far as aggravating circumstances, the court indicated that it was looking at
appellant’s history on probation and “how she’s followed through with probation. And
that’s a very big concern here.” The court further stated:

       “Court is denying probation because it doesn’t seem like [appellant’s]
       reasonably capable of following the probation rules. But the Court can
       consider a person’s past performance also in determining whether there’s
       mitigating or aggravating evidence.”
The court then imposed the middle term of six years.
       Appellant cites rule 4.435(b) and People v. Colley (1980) 113 Cal.App.3d 870
(Colley) in support of her contention that the trial court imposed an unlawful sentence


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when it considered appellant’s performance on probation as an aggravating factor. In her
reply brief, appellant acknowledges that People v. Black (2009) 176 Cal.App.4th 145
(Black) reaches a contrary conclusion, but contends that Black is wrongly decided and
should not be followed.
          In Black, the trial court relied on the defendant’s poor performance on probation to
justify imposing an aggravated prison term. After multiple probation violations,
revocations and reinstatements, the court ultimately revoked probation and imposed the
aggravated prison term. Relying on People v. Harris (1990) 226 Cal.App.3d 141
(Harris), the court recognized an exception to rule 4.435(b), namely, that a sentencing
court can consider a defendant’s poor performance on probation during the time period
between the original grant of probation and reinstatement. (Black, supra, 176
Cal.App.4th at pp. 150-151.) The Black court found the Harris decision to be well
reasoned, persuasive and directly responsive to the issue raised in the defendant’s appeal.
(Ibid.)
          The defendant in Black also argued that even if it was appropriate for the
sentencing court to consider the defendant’s poor performance on probation prior to
reinstatement, it was inappropriate to consider her poor performance subsequent to her
last reinstatement. The Black court noted that the “record is somewhat unclear on this
point” (whether the trial court did consider post-reinstatement performance), however it
concluded that it was not reasonably probable the trial court would have chosen a lesser
sentence had it known that some of its reasons were improper. (Black, supra 176
Cal.App.4th at pp. 151-152.)
          Black is directly on point. In the instant case and in Black, there were several
probation revocations and reinstatements that ultimately led to a prison sentence. Here,
the prison sentence was the midterm, not the aggravated term as in Black, but the trial
court did consider appellant’s poor performance on probation as an aggravating factor to
offset the mitigating factor of having had no criminal history. Appellant admitted to four

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violations of probation. Her probation was reinstated three times. Under Harris and
Black, the trial court was entitled to consider her poor performance on probation from the
time probation was initially granted until the last reinstatement as an aggravating factor
for sentencing purposes. As in Black, the record is not entirely clear that the trial court
specifically considered appellant’s poor performance after her last reinstatement on
probation when it imposed the midterm, but if it did so, this would have been improper
under rule 4.435(b)(1) and the Harris and Black line of cases.
       Colley, supra, 113 Cal.App.3d 870 does not help appellant. Colley violated
probation and was sentenced to the midterm for burglary. The sentence was recalled and
Colley was placed on probation. When probation was revoked, the trial court sentenced
Colley to the upper term on the burglary conviction. (Id. at p. 872.) The appellate court
concluded the aggravated term was improperly based on Colley’s performance on
probation in violation of former rule 435(b)(1) (now rule 4.435(b)(1)). (Colley, supra, at
pp. 872-873.) The Court of Appeal modified Colley’s sentence from the upper to the
midterm. (Id. at p. 874.) As explained in Black, the Colley court did not consider the
circumstances at issue in Harris or Black, because there was no reinstatement of
probation followed by another revocation. Thus, Colley is not pertinent to the
circumstances here, where there were multiple reinstatements of probation.
       In conclusion, to the extent that the trial court considered appellant’s poor
performance on probation from the time of her initial grant of probation through all of her
reinstatements, there was no error and no violation of rule 4.435(b)(1). (Harris, supra,
226 Cal.App.3d at pp. 145-147; Black, supra, 176 Cal.App.4th at p. 152.) However, it
would have been error for the court to have considered her poor performance following
her last reinstatement as an aggravating factor in selecting the base term.
The Trial Court’s Error, If Any, Was Harmless
       When a trial court gives both proper and improper reasons for a sentence choice, a
reviewing court will set aside the sentence only if it is reasonably probable that the trial

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court would have chosen a lesser sentence had it known that some of its reasons were
improper. (People v. Price (1991) 1 Cal.4th 324, 492 (Price); Black, supra, 176
Cal.App.4th at p. 152.) As in Black, we have found nothing in the record indicating that
there is a reasonable probability that the court would have chosen a lesser sentence had it
recognized that it was precluded by rule 4.435(b)(1) from considering appellant’s
performance during the relatively brief time period after the final reinstatement of
probation until probation was revoked for the last time.
       Here, appellant admitted to four probation violations. Probation was reinstated
three times. Several of the violations were only a couple of months apart. The record
indicates appellant was given multiple opportunities to remain on probation, but
continued to violate probation at every turn. Before her last reinstatement, appellant
admitted on three different occasions to violating probation over an eight-month period in
2011. She was first placed on probation in July 2010; her third and final reinstatement of
probation occurred in December 2011. During that period of time, her performance was
exceedingly poor. The last violation of probation report was filed on December 21, 2011,
and she admitted violating probation in May 2012. She was sentenced on June 26, 2012.
Of the approximate 23-month period between first being placed on probation and being
sentenced to prison, her performance on probation was abysmal. The court was well
within its lawful discretion to consider her performance from July 2010 until December
2011. It is only the post-December 2011 time period that the court was not permitted to
consider in selecting the base term. Assuming, without deciding, that the court did
consider appellant’s poor performance on probation both before and after the last
reinstatement, it is not reasonably probable that the court would have chosen a lesser
sentence had it excluded from its consideration her post-December 2011 performance
(Price, supra, 1 Cal.4th at p. 492). We conclude that if any error was committed, it was
harmless.



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No-contact Order On Abstract of Judgment Must Be Stricken
       Appellant contends and respondent agrees that the no-contact order that appears
on the abstract of judgment must be stricken because the transcript of the sentencing
proceeding does not include a no-contact order. Further, the court was not authorized to
make a no-contact order once it revoked probation and sentenced appellant to prison.
(People v. Robertson (2012) 208 Cal.App.4th 965, 996.)
                                     DISPOSITION
       The no-contact order on the abstract of judgment is ordered stricken. The trial
court is directed to send a corrected abstract of judgment to the California Department of
Corrections and Rehabilitation. The judgment is otherwise affirmed.




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