People v. Castro CA4/3

Filed 6/20/23 P. v. Castro CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061348
v. (Super. Ct. No. 00NF1636)
FIDEL ERNESTO CASTRO, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Michael A. Leversen, Judge. Affirmed.
Benjamin Kington, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
* * *
1
This is another of the burgeoning number of Wende filings occasioned by
recent legislative changes that are, not surprisingly, confusing to people who have not
received a legal education. Appellant Fidel Castro’s attorney has been unable to find an
issue to argue on behalf of his client, who misunderstood the change in the law. We have
reviewed the record and agree there is no arguable issue.
In 2019, in an attempt to make California law regarding murder more
reflective of actual culpability, our Legislature effectively renounced the theories of
“felony murder” and “reasonable and probable consequences liability” for murder and
attempted murder. First, the Legislature eliminated the natural and probable
consequences theory for that crime by providing that “[m]alice shall not be imputed to a
person based solely on his or her participation in a crime.” (Pen. Code, § 188, subd.
(a)(3) 2.) Second, it reined in the felony murder rule so that it can only be applied to
nonkillers if they aided and abetted the killer in committing first degree murder, or they
were a major participant in the underlying felony and acted recklessly indifferent to
human life. (§ 189, subd. (e).) It provided that people previously convicted could
petition to have their cases reviewed and relief granted if either of those theories was
employed against them and the facts of their case would not support a murder or
attempted murder conviction without resort to those theories.
In 2007, appellant was convicted by a jury of premeditated attempted
murder, shooting at an occupied motor vehicle, dissuading a witness, brandishing a
firearm, and street terrorism. It was found to be true that he had personally used and
discharged a firearm in connection with the attempted murder count. He was sentenced
to 38 years, 4 months to life in prison. The convictions were affirmed on appeal,
although the sentence enhancement for use of a firearm enhancement was stricken
1
People v. Wende (1979) 25 Cal.3d 436.
2
All further statutory references are to the Penal Code.
2
because he had also been convinced of personally discharging the firearm. (People v.
Castro (Oct. 23, 2007, G037208) [nonpub. opn.].)
In 2021, appellant filed this action, seeking relief pursuant to newly-enacted
section 1172.6.3 Section 1172.6 is the procedural mechanism for implementing the
legislative changes described above.
The trial court appointed counsel for appellant, heard appellant’s motion
under this section and denied it. He appealed and we appointed counsel to represent him
on appeal. Counsel reviewed the record in the case and concluded there was no issue he
could argue that had a reasonable chance of success. He did not argue against his client
but requested – as the law provides – that we independently review the case and see if we
could find an issue that might be arguable. (Wende, supra, 25 Cal.3d 436; People v.
Delgadillo (2022) 14 Cal.5th 216.) Appellant was given the opportunity to write to us
and tell us what issues he thought might be found in the record but did not do so.
To obtain relief under the new section, the appellant had to show 1) he was
prosecuted for murder or attempted murder under the felony murder rule or the natural
and probable consequences doctrine, 2) his case was ultimately resolved under one of
those concepts and 3) he would not be liable for his crime today because of how the
Legislature has redefined that offense. (§§ 1172.6; 188, 189.) Appellant’s petition fails
on two of these three requirements.
Most importantly, neither of the abandoned theories was employed here.
The charging document in his case (the first amended information) alleges that he “did
willfully, unlawfully, and with malice aforethought” attempt to murder the victim. It
goes on to allege that he did so “willfully, deliberately and with premeditation[.]” No
“felony murder” or “reasonable and probable consequence” allegation appears in the
information.
3 When appellant filed this action, the governing section for the relief he sought was section
1170.95. It has since been renumbered 1172.6.
3
The jury did not find that appellant took part in a crime in which someone
else did something and he was liable for it, they found that he personally discharged a
firearm at the person with the intent to kill. They found he did it with premeditation.
Those verdicts and finding establish that he was prosecuted as the perpetrator of the
offense and without reference to any theory of felony murder or natural and probable
consequences. They also establish that he would be liable for attempted murder under
present law.
The petition under section 1172.6 was properly denied and appellate
counsel’s concession under Wende was well-founded. The judgment is affirmed.
BEDSWORTH, ACTING P. J.
WE CONCUR:
MOORE, J.
GOETHALS, J.
4