People v. Castro CA2/6 ( 2023 )

Filed 7/17/23 P. v. Castro CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d. Crim. No. B322907
(Super. Ct. No. BF179839A)
Plaintiff and Respondent, (Kern County)
v.
JUAN MANUEL CASTRO,
Defendant and Appellant.
A jury convicted appellant Juan Manuel Castro of robbery
(Pen. Code, § 212.5, subd. (a)), possession of ammunition by a
convicted felon (Id., § 30305, subd. (a)(1)), and attempting to
dissuade a witness from reporting a crime (Id., § 136.1, subd.
(b)(1)). In a bifurcated bench trial, the court found true
allegations that appellant had two prior serious felony
convictions. It sentenced appellant to an aggregate term of 27
years, four months in state prison.
Appellant raises three issues. First, he contends the trial
court violated Evidence Code section 356 by denying his request
to play jurors the complete recordings of his two post-arrest
interviews with law enforcement. Second, he contends the court
erred by allowing a detective to testify about appellant’s alleged
gang ties. Third, he requests resentencing on his robbery
conviction pursuant to Penal Code section 1170, subdivision (b).1
We affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Irineo Mora called 911 on the night of January 18, 2020, to
report a robbery at his apartment in Bakersfield’s La Loma
neighborhood. A woman had knocked on his door and asked for
money. A man dressed in black then appeared from behind her
with a handgun. The suspects ordered Mora to kneel on the
ground while they searched his apartment for valuables. They
took a TV, laptop, stereo, cell phone, $500 in cash, a pair of pants,
and Mora’s immigration papers. They also demanded the pin
number for his Chase Bank debit card. Mora said the man
threatened to “put people from his gang” on him if he spoke to
police.
Deputy Jose Gamboa of the Kern County Sheriff’s Office
responded to the 911 call. He helped Mora contact Chase Bank to
cancel his debit card over the phone. The bank confirmed
someone had used the card moments earlier at a nearby
convenience store. Sheriff’s Detective Vidal Contreras later
obtained images from the store’s surveillance cameras. Mora
identified the suspects in one of the images. Deputy Gamboa
recognized the male suspect as appellant and arrested him soon
after. Appellant was carrying an air pistol and a gun magazine
with .38 caliber ammunition at the time of arrest.
1All further statutory references are to the Penal Code
unless otherwise stated.
2
Deputy Gamboa and Detective Contreras each interviewed
appellant after his arrest. Both interviews were recorded and
transcribed. Appellant said his ex-girlfriend, Diane Barona,
persuaded him to accompany her to Mora’s apartment. Barona
told him she had visited Mora on four prior occasions and knew
he liked to “[spend] money on women to do drugs with him.”
Appellant believed Mora would give them cash so they could
“make a run” for drugs in exchange for some beer. Appellant
insisted he did not plan to rob Mora because doing so would
violate the “rules” of the neighborhood. When they entered the
apartment, though, Barona brandished a plastic handgun and
began stuffing items into a duffle bag. Appellant admitted taking
$100 from Mora’s wallet but denied threatening him. They left
and Barona immediately withdrew $40 from a convenience store’s
ATM using the victim’s debit card. Appellant felt like Barona
“set [him] up” by not telling him in advance about her plan to rob
Mora.
The People disclosed that Deputy Gamboa and Detective
Contreras would testify at trial about the post-arrest interviews.
Appellant moved in limine under Evidence Code section 356 to
play the complete interview recordings to ensure jurors would
hear his admissions in context with other statements that
mitigated his guilt. The trial court denied the motion but
assured appellant he would have the opportunity to present
“exculpatory statements contained within the same interview or
the same conversation to those that are elicited by the People.”
Appellant argued at trial that Barona tricked him into
helping her with a robbery. While cross-examining Deputy
Gamboa, defense counsel asked whether appellant said Barona
knew the victim before the crime. Gamboa responded, “yes.”
3
Defense counsel followed up with questions about specific things
appellant claimed Barona told him in advance, like how she had
visited Mora on four occasions and knew he bought drugs for
prostitutes. The People objected to the statements as double
hearsay. Appellant responded that the statements were
admissible for their truth under section 356 to balance the
officer’s incomplete and misleading version of what appellant said
during his interview. Appellant renewed his request to play the
complete recordings to jurors. The trial court sustained the
People’s objections and denied the request. Later, Defense
counsel asked Detective Contreras on re-cross whether appellant
“knew for a fact . . . that Mr. Mora solicits girls to come and party
with him and he buys them drugs.” The court again sustained
the People’s objections.
Defense counsel also asked Deputy Contreras whether
appellant said he would not rob anyone in La Loma because it
was against the neighborhood’s rules. Contreras confirmed
appellant said “something like that” and interpreted the
statement as meaning he would face consequences from the local
gang. The People asked Contreras on redirect what he
understood appellant meant by “rules.” Contreras said this
meant gang rules against robbing people who were not involved
in drugs or the gang life. The People then asked whether
appellant saying he was subject to these “rules” caused Contreras
to “infer [appellant] was part of a gang?” Defense counsel’s
foundation objection was sustained and the People asked
Contreras to describe his background, training and experience
regarding gangs, which he did. The People then repeated their
question “And so my follow-up question is, based on his response
4
to the, quote-unquote, rules of this neighborhood, did you believe
that he was part of a gang?” Contreras answered “Yes.”
The jury found appellant guilty of robbery and not guilty of
burglary.2 The court denied his motion for new trial but granted
his motion to strike one of his prior convictions under People v.
Superior Court (Romero) (1996) 13 Cal.4th 497.3
DISCUSSION
Evidence Code section 356
Appellant contends the trial court violated Evidence Code
section 356 by denying his request to play his complete post-
arrest interviews to the jury. We disagree.
California’s version of the common law “rule of
completeness” is codified in Evidence Code, section 356.4 The
purpose of the rule is “‘to prevent the use of selected aspects of a
conversation, act, declaration, or writing, so as to create a
misleading impression on the subjects addressed.’” (People v.
Clark (2016) 63 Cal.4th 522, 600.) “We review the trial court’s
determination of whether or not to admit evidence under this
2The jury deadlocked on a single count of narcotics
possession.
3The trial court denied appellant’s earlier motion for
mistrial on the same grounds.
4 Evidence Code, section 356 states: “Where part of an act,
declaration, conversation, or writing is given in evidence by one
party, the whole on the same subject may be inquired into by an
adverse party; when a letter is read, the answer may be given;
and when a detached act, declaration, conversation, or writing is
given in evidence, any other act, declaration, conversation, or
writing which is necessary to make it understood may also be
given in evidence.”
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provision for abuse of discretion.” (People v. Cornejo (2016) 3
Cal.App.5th 36, 73, citing People v. Pride (1992) 3 Cal.4th 195,
235.)
We agree with the trial court’s remark that offering a
statement under section 356 does not mean “the remainder of the
evidence code is tossed aside.” Courts must balance the rules of
completeness and hearsay when deciding which evidence is
needed to complete a statement or place it in context. (See People
v. Armstrong (2019) 6 Cal.5th 735, 786-787, citing People v.
Melendez (2016) 2 Cal.5th 1, 26 [rule of completeness reflects the
principle that “a party seeking introduction of one part of a
statement cannot selectively object to introduction of other parts
necessary to give context”].)
The trial court acted well within its discretion when it
balanced the two rules here. It provided defense counsel wide
latitude to cross-examine Deputy Gamboa and Detective
Contreras about the exculpatory portions of appellant’s
interviews. Jurors heard testimony that Barona visited Mora’s
apartment prior to the alleged robbery; that appellant
accompanied Barona to the apartment so he could help Mora buy
drugs, not rob him; that Mora paid appellant $20 to procure the
drugs; and that Barona, not appellant, initiated the robbery by
pulling out a gun and packing items into a bag. The decision to
exclude testimony about the exact number of occasions Barona
had visited the apartment, or about Mora’s purported association
with prostitutes, did not leave appellant’s statements to law
enforcement incomplete or misleading. Appellant’s alternate
narrative, in fact, seems to have prevailed because the jury
acquitted him of burglary.
6
Gang Membership
Appellant contends his due process rights were violated
when Detective Contreras testified he believed appellant was a
gang member. We again disagree.
The testimony at issue flowed from questions by defense
counsel about statements appellant made to Contreras about
neighborhood “rules.” Defense counsel asked Contreras whether
appellant stated “there’s not supposed to be robberies of this
nature” in La Loma. Contreras responded appellant had “alluded
to something like that.” After reviewing the interview transcript
to refresh his memory, Contreras clarified appellant said “he
wouldn’t rob anyone like that, and if he did, he would wear a
mask, and alluded to [there] being consequences from gang
members if he did that.” Defense counsel asked again whether
appellant specifically mentioned there were “rules against that.”
Contreras responded, “Something to that [effect], yes.”
The issue arose again on redirect examination. The People
asked, “what are these rules that you understood [defense
counsel] was referring to?” Contreras responded that in the
context of the interview he understood the statement to mean
appellant “would not be able to commit robberies like that
because it would have consequences from the local gang of
robbing someone that wasn’t involved in drugs, or involved in the
gang life, that would somewhat be of a civilian stature.” This
response drew an objection from defense counsel as lacking
foundation. The People addressed the objection by eliciting
testimony about Contreras’s gang-specific training and
experience, then proceeded to ask whether he believed appellant
belonged to a gang based on the statements about neighborhood
rules. Appellant did not object. Contreras answered in the
7
affirmative. On recross examination he conceded appellant did
not use the term “gang” or expressly admit belonging to one.
Courts “must ‘carefully scrutinize’ gang-related testimony
before admitting it into evidence because the content of such
testimony ‘may have a highly inflammatory impact on the jury.’”
(People v. Flores (2020) 9 Cal.5th 371, 402, quoting People v.
Williams (1997) 16 Cal.4th 153, 193.) “The risk of injecting
undue prejudice is particularly high in cases where the
prosecution has not charged a gang enhancement and the
probative value of the gang evidence is minimal.” (Flores at
p. 402, citing People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
Detective Contreras’s brief testimony about appellant’s alleged
gang membership, however, did not unduly prejudice appellant.
The victim had already testified that appellant threatened to “get
his gang on me.” Defense counsel raised the issue again when he
asked Contreras about the “rules” in Mora’s neighborhood. The
People were entitled to ask on redirect how and why those rules
applied to appellant. The possible minimal prejudice that may
have resulted was outweighed by its probative value. (See e.g.,
Flores at p. 402 [prejudice resulting from gang evidence
outweighed by its probative value; expert testimony about gang
culture was “highly relevant to defendant’s possible motive for
the charged crimes”].)
Sentencing Error
The trial court imposed the upper term of six years on
appellant’s robbery conviction, which it then doubled based on a
prior serous felony conviction. (§§ 667, subd. (e), 1170.12, subd.
(c)(1).) Appellant contends, and the Attorney General concedes
both that Senate Bill No. 567’s amendments to Penal Code
section 1170, subdivision (b) apply retroactively to the sentence
8
on this charge and that its application requires remand for
resentencing. (Sen. Bill No. 567 (2021-2022 Reg. Sess.) § 1.)5 We
agree the law applies retroactively but disagree its application
requires resentencing
Former section 1170, subdivision (b) gave trial courts
discretion to decide which of the three terms specified for an
offense would best serve the interests of justice. Senate Bill No.
567 amended subdivision (b) to require imposing the middle term
as the presumptive sentence effective January 1, 2022. (§ 1170,
subd. (b)(1)-(2); Stats. 2021, ch. 731, § 1.3.) A court may now
impose the upper term only if “there are circumstances in
aggravation of the crime that justify the imposition of a term of
imprisonment exceeding the middle term, and the facts
underlying those circumstances have been stipulated to by the
defendant, or have been found true beyond a reasonable doubt at
trial by the jury or by the judge in a court trial.” (§ 1170, subd.
(b)(2).) Subdivision (b)(3) creates an exception, allowing the court
to “consider the defendant's prior convictions in determining
sentencing based on a certified record of conviction without
submitting the prior convictions to a jury.” (§ 1170, subd. (b)(3).)
The trial court cited five aggravating factors when it
imposed the upper term on appellant’s robbery conviction:
(1) appellant’s prior convictions as an adult were numerous (Cal.
Rules of Court, rule 4.421(b)(2)); (2) he had served four prior
prison terms (rule 4.421(b)(3)); (3) he was on Post-Release
Community Supervision when he committed the crime (rule
5We requested supplemental briefing regarding whether
the error was harmless. Appellant filed a letter brief,
Respondent did not.
9
4.421(b)(4)); (4) his prior performance on probation was
unsatisfactory in that he failed to comply with terms or
reoffended (rule 4.421(b)(5)); and (5) he had an active warrant for
his arrest at the time of the offense (rule 4.421(b)(5)).
The trial court found only one of the five aggravating
factors true beyond a reasonable doubt as required by amended
section 1170. Factor 1 was established by certified copies of
appellant’s prior felony convictions. The remaining factors were
evidenced only by the sentencing report. This was not a certified
record of conviction. (People v. Dunn (2022) 81 Cal.App.5th 394,
408–409 (Dunn), review granted Oct. 12, 2022, S275655.) Given
this error, we must determine whether it was harmless under
both federal and state standards. (People v. Zabelle (2022) 80
Cal.App.5th 1098, 1109–1110 (Zabelle)) [error alone not ground
for reversal].)
We apply a two-step analysis for determining whether the
error was harmless: (1) whether the court could impose the
aggravated term under the Sixth Amendment, applying the
standard set forth in Chapman v. California (1967) 386 U.S. 18,
in the manner described in People v. Sandoval (2007) 41 Cal.4th
825, 839; and (2) whether the court would impose the aggravated
term under section 1170 applying the standard set forth in People
v. Watson (1956) 46 Cal.2d 818. (Zabelle, supra, 80 Cal.App.5th
at p. 1112.)
In step one, we ask whether a jury unquestionably would
have found true beyond a reasonable doubt at least one of the
aggravating factors the trial court relied on in imposing the
aggravated sentence. (Zabelle, supra, 80 Cal.App.5th at pp.
1112-1113.) The answer here is “yes.” The trial court found,
beyond a reasonable doubt, that appellant suffered two prior
10
convictions after considering certified records of those
convictions. We have no doubt a jury would have reached the
same conclusion. Thus, there was no Sixth Amendment error.
In step two, we must consider whether it is reasonably
probable that the jury would have found each aggravating factor
“not true.” If any aggravating factors survive this inquiry, we
must then determine “whether it is reasonably probable that the
trial court would have chosen a lesser sentence” had it considered
these surviving factors. (Zabelle, supra, 80 Cal.App.5th at
p. 1112.) We conclude it is not reasonably probable the jury
would have found factors two through five not true. They are not
“vague” or “subjective,” (People v. Sandoval (2007) 41 Cal.4th
825, 840 [it is more difficult for a reviewing court to conclude a
jury would assess the aggravating fact in the same manner as the
trial court when the fact rests on a somewhat vague or subjective
standard]) and they were undisputed. (See People v. Epps (2001)
25 Cal.4th 19, 29 [finding the denial of a statutory right to a jury
trial on a prior conviction harmless where the only factual
question for the jury was whether the prior convictions occurred,
and the defendant did not question this fact].) Defense counsel
even admitted while arguing in a pre-sentence motion to strike
that his client had “numerous offenses.” His supporting
declaration stated appellant “suffered two strike prior
convictions” and had a long criminal history including “petty drug
offenses, misdemeanor spousal abuse, felony assault, receiving
stolen property, vehicle theft, passing false checks, and trespass.”
Finally, going beyond the two-step harmless error analysis,
we conclude “the record clearly indicates that the court would
have imposed an upper term under its new, circumscribed
discretion.” (People v. Lewis (2023) 88 Cal.App.5th 1125, 1137,
11
review granted May 17, 2023, S279147.) The trial court
ultimately struck one prior conviction, a 1991 robbery, but did
not strike more recent ones. It explained: “considering the
current circumstances, [appellant’s] criminal history, including
the age of the 1991 strike, including the circumstances of that
strike, including the sentence that was imposed, and including
consideration for the fact that it is still possible for the Court to
impose a significant and substantial sentence in this case.”
(Italics added.) The court added, “That does not mean I’m
striking [the prior 1991 strike] for purposes of imposition of the
667(a). That is, in fact, part of my consideration, that I still have
the opportunity to impose that five-year enhancement as part of
the overall sentence in this matter.” This shows the court
partially granted the motion to strike with the intention of
reaching a substantial sentence based upon the aggravated term.
“[T]he record clearly indicates that the trial court would have
imposed the same sentence under the new law.” (People v. Lewis
(2023) 88 Cal.App.5th 1125, 1137.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
CODY, J.
We concur:
YEGAN, Acting P.J. BALTODANO, J.
12
David R. Zulfa, Judge
Superior Court County of Kern
______________________________
Jeffrey S. Kross, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Senior Assistant
Attorney General, Eric L. Christoffersen, Supervising Deputy
Attorney General, and Ross K. Naughton, Deputy Attorney
General, for Plaintiff and Respondent.