People v. Castillo CA4/1

Filed 2/2/22 P. v. Castillo CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078680
Plaintiff and Respondent,
v. (Super. Ct. No. CR134015)
RUDOLPHO CASTILLO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Frederic L. Link, Judge. Reversed and remanded with directions.
Appellant’s request for judicial notice is denied.
Steven S. Lubliner, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Melissa Mandel, Acting Assistant Attorney General,
Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for
Plaintiff and Respondent.
In 1993, a jury convicted Rudolpho Castillo of first degree murder (Pen.
Code,1 § 187, subd. (a)) with the use of a firearm (§ 12022, subd. (a)) and
assault with a firearm with the personal use of a firearm (§ 12022.5,
subd. (a)). Castillo admitted a serious felony prior conviction. Castillo was
sentenced to an indeterminate term of 31 years to life in prison.
Castillo appealed and this court affirmed the judgment in an
unpublished opinion, People v. Castillo, D018563 (Feb. 9, 1994).
In 2019, Castillo filed a petition for resentencing under section 1170.95.
The court appointed counsel, received briefing, and ultimately held a hearing.
After reviewing the record and the evidence from the original trial, the court
determined Castillo was convicted as a direct aider and abettor who acted
with reckless disregard for human life. The court said:
“In looking at the evidence here, it is clear to this Court
that this defendant was a major participant in the
underlying felony, and he acted with reckless disregard, in
going over the evidence of the case and from the facts from
the Court of Appeal[ ].
“I find that in this case, it is very clear that he, with—even
with intent to kill, he assisted the actual[ ] killer. He
technically was a killer. He and his buddy went after him.
One has got a butcher knife. He has the gun. He is shooting
and misses. The other guy goes over and stabs him with the
butcher knife. Your guy goes around and gets the car, and
they all jump in and leave.
“I mean, if that is not a conspiracy to commit a felony, then
I don't know what it is. That definitely is implied malice.”
Castillo filed a timely notice of appeal.
Castillo contends the trial court erred in denying his petition at the
prima facie stage of review without issuing an order to show cause and
1 All further statutory references are to the Penal Code.
2
holding an evidentiary hearing. The Attorney General agrees with Castillo
and concedes we must reverse and remand for an evidentiary hearing. After
review of the record, we will accept the Attorney General’s concession.2
DISCUSSION3
In People v. Lewis (2021) 11 Cal.5th 952 (Lewis), the court clarified the
role of trial judges when conducting a prima facie review of a petition for
resentencing under section 1170.95. The court quoted from section 1170.95,
former subdivision (c), explaining:
“The court shall review the petition and determine if the
petitioner has made a prima facie showing that the
petitioner falls within the provisions of this section. If the
petitioner has requested counsel, the court shall appoint
counsel to represent the petitioner. The prosecutor shall
file and serve a response within 60 days of service of the
petition and the petitioner may file and serve a reply
within 30 days after the prosecutor’s response is served.
These deadlines shall be extended for good cause. If the
petitioner makes a prima facie showing that he or she is
entitled to relief, the court shall issue an order to show
cause.”
(Lewis, at p. 961.)
The trial court may consider the record of conviction in determining
whether the petitioner’s representations have been rebutted as a matter of
law. The court may not, however, engage in factfinding, making credibility
determinations, or weighing evidence at the prima facie review stage. (Lewis,
2 Given the Attorney General’s concession, we will deny Castillo’s
request for judicial notice of certain records from the jury trial. Such
additional records are not necessary for the proper resolution of this appeal.
3 The facts of the offense are fully set forth in our prior opinion. We will
not repeat them here.
3
supra, 11 Cal 5th at pp. 971-972; People v. Drayton (2020) 47 Cal.App.5th
965, 980-981.)
In this case, the jury was instructed originally on direct aiding and
abetting. However, during jury deliberations the jury was instructed on
liability based on natural and probable consequences arising from aiding a
“criminal act.” The prosecutor and the trial judge ignored the ambiguity
created by the new instruction. The court focused on the testimony from the
original trial. Based upon the court’s evaluation of the testimony from the
trial, the court independently concluded Castillo was convicted as a direct
aider and abettor who acted with reckless disregard for human life. Such
evidentiary analysis and weighing was not appropriate at the prima facie
stage of review. The court should not have denied the petition at that point;
thus, we will accept the parties’ agreement including the Attorney General’s
concession and reverse and remand the case with directions.
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DISPOSITION
The order denying Castillo’s petition for resentencing under
section 1170.95 is reversed. The case is remanded to the superior court with
directions to issue an order to show cause and to conduct an evidentiary
hearing as required by statute.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
DO, J.
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