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F. C. L. v. Agustin

Court of Appeals of Oregon

May 13, 2015

F. C. L., Petitioner,
v.
Artemio Castillo AGUSTIN, aka Artemio Castillo-Agustin, Respondent. STATE OF OREGON, Plaintiff-Respondent,
v.
ARTEMIO CASTILLO AGUSTIN, aka Artemio Castillo-Agustin, Defendant-Appellant

Submitted March 16, 2015.

Page 483

C130814RO. Washington County Circuit Court. Donald R. Letourneau, Judge.

Peter Gartlan, Chief Defender, and Elizabeth Daily, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Pamela J. Walsh, Senior Assistant Attorney General, filed the brief for respondent.

Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.

OPINION

Page 484

[271 Or.App. 151] LAGESEN, J.

In this appeal from a judgment of punitive contempt for violation of a Family Abuse Prevention Act (FAPA) restraining order, we are asked to decide whether the trial court's remarks to defendant about the risks of testifying were so impermissibly coercive as to violate defendant's right to testify under Article I, section 11, of the Oregon Constitution and the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.[1] We conclude that the trial court's advice--which would have communicated to a reasonable person in defendant's position that the trial court would sentence defendant more harshly if defendant elected to testify--crossed the line from permissible warnings to [271 Or.App. 152] impermissible coercion, violating defendant's right under the Fourteenth Amendment. Accordingly, we reverse.

L, defendant's longtime domestic partner and the mother of his children, obtained a FAPA restraining order against defendant. The restraining order awarded temporary custody of the couple's four children to L, but provided defendant with parenting time three days a week, allowing defendant to go to the curb at L's residence on those days to pick up and return the children. Otherwise, the order prohibited defendant from, among other things, " intimidating, molesting, interfering with or menacing" L and the couple's children (or attempting to do so); being within 100 yards of L's residence or workplace; " knowingly be[ing] or stay[ing] within * * * 100 yards" of L; and " [c]ontacting, or attempting to contact, [L] by telephone, including cell phone or text messaging directly or through third parties." At the top of the

Page 485

order, a box entitled " NOTICE TO RESPONDENT" explained that the recipient of the order " must obey all of the provisions of this Restraining Order, even if the Petitioner contacts you or gives you permission to contact him/her."

Washington County Sheriff's Corporal Clifford Lascink served the order on defendant. Although defendant's primary language is Spanish, and defendant cannot read English, the order was written in English. Lascink explained, in English, " certain parts" of the order to defendant, " including that he couldn't be within 100 yards of the victim" and the portions of the order discussing parenting time. Lascink also discussed " the work aspect of it, and the no contact by third parties and the cell phone * * * [a]nd also not being allowed by the residence." Lascink was aware that defendant could not read the restraining order and told defendant " that basically he could go to the courthouse." Lascink also told defendant that it was defendant's responsibility to know the contents of the order. Defendant told Lascink that he had friends who could translate it for him.

A few months after Lascink served the order on defendant, L was stopped for a traffic violation. L called defendant and " told him I got pulled over and if he could, you know, just swing by." Upon receiving L's phone call, [271 Or.App. 153] defendant drove to L's location to provide her with assistance, but was unable to assist her " [b]ecause as soon as he got out of ...


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