People v. Castro CA2/4

Filed 12/11/20 P. v. Castro CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE, B304473
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA130990)
v.
ANTONIO FRANCISCO CASTRO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Raul A. Sahagun, Judge. Affirmed.
Janet Uson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Idan Ivri and Thomas C.
Hsieh, Deputy Attorneys General, for Plaintiff and
Respondent.
_____________________________________________________
INTRODUCTION
Antonio Francisco Castro appeals from the trial court’s
order denying his petition under Penal Code section 1170.95
(Section 1170.95) to vacate his conviction for first degree
murder. We affirmed his conviction in a prior, unpublished
opinion. (People v. Castro (Aug. 14, 2017, No. B262307)
[nonpub. opn.] 2017 Cal.App.Unpub. LEXIS 5578.) In his
petition, Castro requested the appointment of counsel, and
alleged he had been convicted under the felony murder rule
or the natural and probable consequences doctrine. In
response, the People submitted the jury instructions given at
Castro’s trial, which omitted any instruction on the felony
murder rule or the natural and probable consequences
doctrine. Without appointing counsel or allowing Castro
time to file a reply, the trial court denied Castro’s petition.
The court stated that neither of the specified theories had
been presented at his trial, and concluded that he had failed
to make a prima facie showing of entitlement to relief.
On appeal, Castro contends the court erred by denying
his petition without appointing counsel and allowing him to
file a reply. He neither disputes the authenticity of the jury
instructions submitted by the People, nor suggests any
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argument he might have made, with the assistance of
counsel, in the face of the instructions.
We affirm. The jury instructions conclusively
established that Castro could not make a prima facie
showing of entitlement to relief under Section 1170.95.
Accordingly, we need not decide whether the court erred by
failing to appoint counsel or by failing to allow Castro the
opportunity to file a reply, as any such error was harmless.
FACTUAL BACKGROUND
A. Castro’s Conviction1
In October 2012, Shane Cook was found beaten to
death in his kitchen. A medical examiner found that Cook
had died from multiple blunt force trauma to the head, and
that some of his injuries were consistent with being caused
by a long, hard instrument (such as a plumbing pipe). The
People charged Castro and a codefendant, Randy Daniel
Ortiz, with Cook’s murder, alleged that the crime was gang
related, and alleged that each defendant personally used a
deadly weapon in the commission of the crime. (Pen. Code,
§§ 187, subd. (a), 186.22, subd. (b)(1)(C), 12022, subd. (b)(1).)
At trial, Alicia Doolan testified that she spent the day
of Cook’s death at his house with him and Ortiz. Ortiz
argued with Cook about an iPad and phoned someone (later
1 The facts in this subsection are taken from our prior
opinion. (People v. Castro, supra, 2017 Cal.App.Unpub. LEXIS
5578, at *4-*9.)
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identified as Castro) to pick him up. Ortiz was holding a
piece of plumbing pipe during the argument, and there was a
similar piece of pipe on the kitchen table.2 Castro came to
the house and asked Doolan to excuse the three men so he
and Ortiz could speak to Cook. She went into the bathroom
but emerged after she heard arguing. She saw the men
fighting in the kitchen, and further saw Cook fall to his knee.
She went into the bathroom again but emerged a few
minutes later, and saw Cook on the floor of the kitchen,
where Castro and Ortiz were still present. She saw blood.
Ortiz demanded that she drive him and Castro elsewhere,
and she complied. In the car, Ortiz asked Castro if Cook was
still alive. Castro responded, “‘He was still breathing but I
cracked him pretty hard.’” Shortly thereafter, Doolan parted
ways with the two men.
The jury convicted Castro of first degree murder and
found true the gang and deadly weapon allegations. In a
bifurcated trial, the trial court found true an allegation that
Castro had one prior serious or violent conviction under the
three strikes law. (Pen. Code, §§ 667, subds. (a)(1) & (b)-(i),
1170.12, subds. (a)-(d).) Castro was sentenced to a total
term of 56 years to life.
2 Another witness testified that he unsuccessfully attempted
to connect Cook’s house to the city water supply the morning of
the murder (presumably with plumbing pipes). The plumbing
pipes described by Doolan were never found. No other weapons
were recovered.
4
On appeal, we concluded, inter alia, that although the
trial court erred by failing to instruct the jury on the
elements of the deadly weapon enhancement, this error was
harmless beyond a reasonable doubt with respect to Castro.
(People v. Castro, supra, 2017 Cal.App.Unpub. LEXIS 5578,
at *18.) We reasoned, in relevant part, “The physical
evidence undisputedly showed that Cook was repeatedly hit
on the head with one o[r] more objects consistent with
Doolan’s description of the pipes. . . . [T]he prosecutor
argued that either Ortiz and Castro both wielded the pipes,
or Castro hit Cook with both pipes. Importantly, the jury
was not presented with a theory that Castro was at the
scene but did not personally hit Cook. [¶] The jury’s finding
that both Ortiz and Castro were guilty of first degree murder
indicates that it rejected the[ir] misidentification defense,
placing them both at the scene of the crime. The jury’s
murder finding also shows the jury found either Ortiz or
Castro, or both, delivered the fatal blow or blows, and by
implication that one or both hit Cook; yet, a theory of
accomplice liability was presented only as to Ortiz.” (Ibid.)
We affirmed Castro’s judgment, as modified in manners
irrelevant to this appeal. (Id. at *37.)
B. Castro’s Petition
On November 27, 2019, Castro filed a petition for
resentencing pursuant to Section 1170.95. He requested
that the court appoint counsel for him. As an exhibit, he
submitted a jury instruction on first degree willful,
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premeditated, and deliberate murder (CALCRIM No. 521).
As another exhibit, he submitted two jury instructions on
aiding and abetting. The first (CALCRIM No. 400) provided
in relevant part, “A person is guilty of a crime whether he or
she committed it personally or aided and abetted the
perpetrator.” The second (CALCRIM No. 401) provided in
relevant part, “To prove that the defendant is guilty of a
crime based on aiding and abetting that crime, the People
must prove that: [¶] 1. The perpetrator committed the
crime; [¶] 2. The defendant knew that the perpetrator
intended to commit the crime; [¶] 3. Before or during the
commission of the crime, the defendant intended to aid and
abet the perpetrator in committing the crime; [¶] AND [¶] 4.
The defendant’s words or conduct did in fact aid and abet the
perpetrator’s commission of the crime.” Neither aiding and
abetting instruction articulated the natural and probable
consequences doctrine, which is the subject of different
CALCRIM instructions, viz., CALCRIM Nos. 402 and 403.
On January 16, 2020, the People filed a response to
Castro’s petition, arguing Castro was ineligible for relief as a
matter of law because the jury had not been instructed on
the felony murder rule or the natural and probable
consequences doctrine. As an exhibit, the People submitted
the jury instructions given at Castro’s trial, including
duplicates of the three instructions Castro had submitted
with his petition. First degree premeditated murder was the
only theory of first degree murder on which the jury was
instructed. The jury received no instruction on the felony
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murder rule or the natural and probable consequences
doctrine.
The next day (January 17, 2020), the trial court,
without appointing counsel or holding a hearing, issued an
order denying Castro’s petition. The court stated, “The
pertinent facts of the case, as set forth in the decision by the
Court of Appeal, are as follows: . . . Petitioner and Co-
Defendant beat the victim to death with blunt objects. The
Petitioner was convicted of first degree murder. [¶] The
People’s theory of the case was that Petitioner and Co-
Defendant beat the [v]ictim to death. Since it was unclear
who administered the fatal blow, the [P]eople’s theory was
that the Petitioner either administered the fatal blow or was
a direct aider and abettor to the killing. Neither [the] theory
of natural and probable consequences nor [a theory of] felony
murder was advanced.” The court concluded, “Since [Castro]
was not convicted under either the theory of natural and
probable consequences or [a theory of] felony murder,
[Castro] has failed to present a prima facie case for relief.”
Castro timely appealed.
DISCUSSION
Castro contends the trial court erred by denying his
Section 1170.95 petition without appointing counsel and
allowing him to file a reply.
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A. Principles
“Before Senate Bill No. 1437, the felony-murder rule
and the natural and probable consequences doctrine were
exceptions to the actual malice requirement [for murder
liability]. The felony-murder rule made ‘a killing while
committing certain felonies murder without the necessity of
further examining the defendant’s mental state.’ . . . The
natural and probable consequences doctrine made ‘a person
who aids and abets a confederate in the commission of a
criminal act . . . liable not only for that crime (the target
crime), but also for any other offense (nontarget crime)
[including murder] committed by the confederate as a
“natural and probable consequence” of the crime originally
aided and abetted.’” (People v. Johns (2020) 50 Cal.App.5th
46, 57-58.) Senate Bill No. 1437 (SB 1437) amended Penal
Code sections 188 and 189 to eliminate murder liability
under the natural and probable consequences doctrine, and
to narrow the felony murder rule. (See People v. Johns,
supra, 50 Cal.App.5th 46, 58-59; Pen. Code, §§ 188, subd.
(a)(3), 189, subd. (e); Stats. 2018, ch. 1015, §§ 2-3).
SB 1437 also enacted Section 1170.95. (See Stats. 2018,
ch. 1015, § 4.) This section permits a defendant who was
convicted of felony murder or murder under a natural and
probable consequences theory, but who could not be
convicted of murder following SB 1437’s changes to the law,
to petition the sentencing court to vacate the conviction.
(Pen. Code, § 1170.95, subd. (a).) After ascertaining that the
petition includes certain basic information, the court must
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engage in a two-step process to determine if it should issue
an order to show cause. (People v. Verdugo (2020) 44
Cal.App.5th 320, 327 (Verdugo), review granted March 18,
2020, S260493, citing Pen. Code, § 1170.95, subds. (b)(2), (c).)
First, the court must “determine if the petitioner has made a
prima facie showing that the petitioner falls within the
provisions of this section.” (Pen. Code, § 1170.95, subd. (c).)
Second, if the court determines that the petitioner has made
this initial prima facie showing, it must appoint counsel for
the petitioner (if requested), receive the People’s response to
the petition, allow the petitioner to file a reply, and
“determine, with the benefit of the parties’ briefing and
analysis, whether the petitioner has made a prima facie
showing he or she is entitled to relief.” (Verdugo, supra, at
330, rev.gr.) If the court determines the petitioner has made
this second prima facie showing, it must issue an order to
show cause. (Pen. Code, § 1170.95, subd. (c).) If the parties
do not thereafter stipulate that the petitioner is entitled to
relief, the court must hold a hearing and, if the prosecution
fails to prove the petitioner’s ineligibility for relief beyond a
reasonable doubt, vacate the petitioner’s murder conviction.
(Pen. Code, § 1170.95, subd. (d).)
Many Court of Appeal decisions have held that in
determining whether a Section 1170.95 petitioner has made
a prima facie showing of entitlement to relief, the trial court
may consider the record of conviction, including the jury
instructions given at the petitioner’s trial. (See, e.g., People
v. Soto (2020) 51 Cal.App.5th 1043, 1055 (Soto), review
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granted September 23, 2020, S263939; Verdugo, supra, 44
Cal.App.5th at 333, rev.gr.) This issue is currently under
review by our Supreme Court. (People v. Lewis (2020) 43
Cal.App.5th 1128, review granted March 18, 2020, S260598.)
Pending guidance from our Supreme Court, we join our
sister courts in concluding that the trial court may consider
the record of conviction in determining whether the
petitioner has made a prima facie showing of entitlement to
relief.
Error in depriving a defendant of a statutory right to
counsel is reviewed for prejudice under the standard
established in People v. Watson (1956) 46 Cal.2d 818,
requiring reversal only if it is reasonably probable that the
defendant would have obtained a more favorable result had
the error not occurred. (In re Melvin A. (2000) 82
Cal.App.4th 1243, 1252.) There is no constitutional right to
counsel on a Section 1170.95 petition. (See People v. Frazier
(2020) 55 Cal.App.5th 858, 865 [“the Sixth Amendment right
to counsel at critical stages of a criminal proceeding through
sentencing does not apply to postjudgment collateral
challenges [citations], including statutory petitions seeking a
more ameliorative sentence”]; People v. Perez (2020) 54
Cal.App.5th 896, 782-783 [SB 1437 “is not subject to a Sixth
Amendment analysis”]; People v. Anthony (2019) 32
Cal.App.5th 1102, 1156 [same].)3
3 Accordingly, we reject Castro’s contention that a trial
court’s error in failing to appoint counsel for a Section 1170.95
(Fn. is continued on the next page.)
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B. Analysis
We need not decide whether the trial court erred by
failing to appoint counsel for Castro and allowing him to file
a reply to the People’s response. Any such error was
harmless, as there is no reasonable probability that had
Castro filed a reply with the assistance of counsel, he would
have made a prime facie showing of entitlement to relief
under Section 1170.95. (See In re Melvin A., supra, 82
Cal.App.4th at 1252.) The People submitted the jury
instructions given at Castro’s trial, which omitted any
instruction on the felony murder rule or the natural and
probable consequences doctrine -- the only two theories of
murder liability affected by SB 1437.4 The instructions
petitioner, where required by the statute, is subject to either
automatic reversal or review for prejudice under the standard set
forth in Chapman v. California (1967) 386 U.S. 18. People v.
Rouse (2016) 245 Cal.App.4th 292, on which Castro relies, is
distinguishable. There, the Court of Appeal held that a
defendant who had successfully petitioned to recall his sentence,
and thus had “passed the eligibility stage,” was entitled to
counsel at his resentencing hearing. (Id. at 299-300.) That
holding does not support Castro’s position that he had a
constitutional entitlement to counsel in litigating his eligibility
for relief under Section 1170.95.
4 Castro does not dispute the authenticity of the instructions
submitted by the People, which included duplicates of the three
instructions submitted by Castro himself, viz., an instruction on
premeditated and deliberate murder and two instructions on
aiding and abetting. Neither of the aiding and abetting
instructions articulated the natural and probable consequences
doctrine. Instead, they stated the People were required to prove
(Fn. is continued on the next page.)
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established, as a matter of law, that Castro was not
convicted under the felony murder rule or the natural and
probable consequences doctrine. They thereby further
established, as a matter of law, that Castro is not entitled to
relief under Section 1170.95. (See Soto, supra, 51
Cal.App.5th at 1050, 1055-1059, rev.gr. [trial court properly
denied Section 1170.95 petition without issuing order to
show cause, where jury instructions, which omitted
instructions on felony murder rule and natural and probable
consequences doctrine, “demonstrate[d] as a matter of law
that [petitioner] could not make a prima facie showing”].)5
Accordingly, Castro was not prejudiced by the absence of an
opportunity to file a reply with the assistance of counsel.
(See People v. Edwards (2020) 48 Cal.App.5th 666, 674-675,
review granted July 8, 2020, S262481 [any error in trial
that the aider and abettor knew the perpetrator intended to
commit “the crime” charged, and that he intended to aid and abet
“the crime.”
5 Castro fails to suggest any argument he might have made,
with the assistance of appointed counsel, in the face of the jury
instructions. He merely implies that appointed counsel might
have objected to the trial court’s reliance on statements in our
prior opinion. But even had the court sustained such an objection,
the jury instructions would have conclusively refuted Castro’s
claim to relief. (See Soto, supra, 51 Cal.App.5th at 1055, rev.gr.
[“regardless of the trial court’s reliance on the facts in [Court of
Appeal’s] prior opinion to explain how the malice element of
murder may have been satisfied at [petitioner’s] trial, the jury
instructions themselves demonstrate[d] as a matter of law that
[petitioner] could not make a prima facie showing”].)
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court’s failing to appoint counsel or receive briefing before
denying Section 1170.95 petition was “harmless under any
standard of review,” where “a review of the readily available
record of conviction (charging information and jury
instructions) show[ed petitioner] could not meet the
statutory prerequisites”]; cf. People v. Tarkington (2020) 49
Cal.App.5th 892, 899-910, review granted August 12, 2020,
S263219 [affirming summary denial of Section 1170.95
petition at first prima facie review stage, reasoning, in part,
“The court’s ruling turned on one simple, easily
ascertainable, and undisputed fact: [petitioner] was the
actual killer. It is unclear how appointed counsel could have
assisted [petitioner] in any meaningful way”].)
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.
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