People v. Castellano CA2/7 ( 2020 )

Filed 12/2/20 P. v. Castellano CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B296119
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA097909)
v.
LINDA LIZETT CASTELLANO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Laura C. Ellison and Victor L. Wright, Judges.
Affirmed as modified.
Jason Szydlik, 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, Assistant
Attorney General, David E. Madeo and Peggy Z. Huang, Deputy
Attorneys General, for Plaintiff and Respondent.
Linda Lizett Castellano appeals from the judgment of
conviction entered after a jury found her guilty of one count of
assault with a semiautomatic firearm. The jury also found true
the allegations Castellano committed the crime for the benefit of
a criminal street gang and used a firearm in the commission of
the crime.
On appeal, Castellano contends there was not sufficient
evidence the firearm was loaded to support her conviction. She
also argues the trial court erred in failing sua sponte to instruct
the jury on the lesser included offense of assault with a firearm.
She further requests we remand for the trial court to conduct a
hearing on her ability to pay the assessments and fines imposed
by the trial court, in accordance with our opinion in People v.
Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Finally, Castellano
contends, the People concede, and we agree the minute order
from the sentencing hearing reflects the imposition of a criminal
protective order that was not part of the trial court’s oral
pronouncement of judgment and should be stricken.
We order the minute order modified to strike the reference
to a criminal protective order and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People’s Case
1. The assault of Munoz
About 6:45 a.m. on March 14, 2018 Ismael Munoz
Rodriguez1 was standing on the sidewalk along Buford Avenue in
1 Following the parties’ practice at trial, we refer to Ismael
Munoz Rodriguez as Munoz.
2
the Lennox area of Los Angeles County. Munoz, who lives on
Buford Avenue, was preparing to cross the street to reach his
parked car to go to work. As Munoz was about to cross the street,
a four-door Nissan drove by, the rear window came down, and a
woman in a hooded sweatshirt said something Munoz could not
understand.
Munoz crossed the street, got into his car, and drove off.
The Nissan then turned around and pulled up next to Munoz’s
car while he was stopped at a stop sign. The woman in the rear
passenger seat of the Nissan, whom Munoz later identified as
Castellano,2 raised her arm, pointed a gun at Munoz through the
open window, and said, “Fuck Lennox[.] Tepas.” Munoz
understood Castellano’s statement was “gang talk,” and he was
frightened. Castellano was about six or seven feet from Munoz
when she pointed the gun at him. Munoz testified he “wasn’t
going to stand [t]here and let her fire it,” and after a few seconds,
he drove off.
Munoz testified Castellano’s gun “was a black color. It was
like a semi-automatic.” Asked what he meant when he said the
gun was a semiautomatic, Munoz testified, “It was the kind of
gun that police use.” When the prosecutor asked whether Munoz
knew what a revolver was, Munoz responded, “Yes.” Munoz
agreed a revolver looked “[l]ike those cowboy guns.” Munoz
described Castellano’s gun as flat, without a cylinder in the
middle like a revolver.
2 Munoz identified Castellano in a photographic lineup and
at trial.
3
2. The incident at Felton Elementary School
Sandra Marroquin was a teacher at Felton Elementary
School in the Lennox area of Los Angeles County. About
7:30 a.m. on March 14, 2018 Marroquin was walking toward the
school’s gate when she was approached by a woman who was
trembling and nervous. The woman told Marroquin she had just
seen some men get out of a car and “put[] a gun on this kid.”3
The woman asked for Marroquin’s cell phone number so she could
send Marroquin a photograph she had taken of the men’s car.
The woman sent Marroquin the photograph, which Marroquin
forwarded to the school principal and later showed it to the
police. The woman told Marroquin the driver of the car was
female.
3. The investigation
Shortly after 6:45 a.m. on March 14, 2018 Los Angeles
County Sheriff’s Department (LASD) Deputy Erik Felix
responded to a call regarding Munoz’s assault. Deputy Felix took
Munoz’s statement and photographed the scene on Buford
Avenue. About an hour later Deputy Felix was dispatched to
Felton Elementary School, about half a mile away, where he
interviewed Marroquin regarding the second incident.
Marroquin showed Felix the photograph of the vehicle she had
received from the unidentified woman. The vehicle was a Nissan
3 After an Evidence Code section 402 hearing, the trial court
ruled Marroquin’s testimony concerning the unidentified
woman’s statement was admissible under the hearsay except for
spontaneous statements (Evid. Code, § 1240). Castellano does
not challenge that ruling on appeal.
4
Maxima with a California license plate number that matched the
license plate of the vehicle owned by Castellano.
Later that night or early the next morning, Sheriff’s
Deputy Alex Partida stopped a silver Nissan Maxima matching
the description of the car involved in the Felton Elementary
School incident. Castellano’s sister Silvia was driving the car.
The car was towed and held for evidence and fingerprinting. On
March 22, Castellano called the LASD South Los Angeles station
and stated she wanted her car released to her. When Castellano
came into the station to retrieve her car, she was detained and
searched. A sheriff’s deputy recovered Castellano’s cell phone
during the search, and forensic detectives obtained photographs
and text messages from the phone.
4. Gang expert testimony
Detective David Chevez, a gang investigator for the LASD
South Los Angeles area, testified as the People’s gang expert.
Detective Chevez testified with respect to Hispanic street gangs
that upon initiation into a gang, the gang member operates as a
“soldier.” Once the soldier “put[s] in” work by committing crimes
for the gang, he or she can move up to a higher status, and “the
more violent the crimes you commit the higher status you’re able
to attain.” Respect from fellow gang members and fear within
the community are important to gangs and their members. Fear
within the community allows gangs to operate because it
discourages community members from reporting crimes out of
fear of retaliation. Gang members put in the work by committing
violent crimes like murder, attempted murder, and carjackings,
but also lesser crimes such as tagging with graffiti. A gang
5
member’s reputation for violence allows the member to commit
more crimes because victims will not want to come forward.
Respect from rival gangs is also important, and it allows
gangs to “protect their turf.” Sometimes gang members will
commit crimes in rival territory to show disrespect for the rival
gang. Detective Chevez explained, “[W]hen a rival goes into
enemy territory, it’s usually to put in work to commit crimes,
shoot people, rob people, tag, vandalize.” Members may even
“announce” these crimes by committing them in daylight in front
of witnesses. Rival gang members deem such intrusions as a “big
form of disrespect.”
Detective Chevez was familiar with the Tepa 13 gang and
had investigated crimes committed by its members, including
felony possession of firearms, burglaries, robberies, carjackings,
vehicle theft, assaults, attempted murders, and murders. Tepa
13 members sometimes use the shortened name “Tepa.” Tepa 13
operates principally within the City of Inglewood.
The Lennox 13 gang is Tepa 13’s biggest rival. Tepa 13 and
Lennox 13 have had an ongoing feud since the 1970’s, and rival
members “shoot at each other all the time.” Lennox 13’s territory
includes the Lennox area west of Hawthorne Boulevard—to the
west of Tepa 13’s territory. The attack on Munoz occurred “deep
within Lennox 13 territory.” Felton Elementary School is also
within Lennox 13 territory.
Detective Chevez opined Castellano was an active member
of Tepa 13 based on her tattoos and photographs recovered from
her phone showing her posing with gang members with weapons
displaying gang signs. Castellano was at the “soldier” level.
Detective Chevez testified based on a hypothetical mirroring the
facts of the case that the assault would have been committed to
6
benefit Tepa 13. Detective Chevez explained, “I believe someone
pointing a gun at someone else yelling, ‘Fuck Lennox. Tepas.’
That [victim] is probably going to tell his neighbor, his significant
other, his children, he’s probably going to tell of the incident, and
that alerts the community, ‘Hey, Tepas just banged on Lennox.’”
Further, committing a crime in broad daylight increases the
boldness of the crime and benefits the gang “because it gives the
gang [a] very violent reputation.” “[B]anging” on an individual in
rival territory would also “show[] the rival gang, which is Lennox
13 in this case, ‘Hey, this is your hood and we’re going to come
into your hood, and disrespect your hood, and we’re not scared of
you.’”
On cross-examination, Detective Chevez admitted that if a
gang member “banged on” someone in rival territory who was not
a member of the rival gang, the nonmember would typically be
able to walk away without further violence. However, on redirect
examination, Detective Chevez qualified his response and
testified that if the encounter with the nonmember were to occur
in rival gang territory and the non-member “were to just walk
away, or put up some type of resistance[,] then something would
happen.”
Detective Chevez also testified he and most police officers
carry a semiautomatic firearm, which is “the opposite of a
revolver” and “is automatically fed [ammunition] with a
magazine.” This is in contrast to a revolver, which shoots about
five or six shots and has a round cylinder.
B. The Defense Case
Castellano testified she had been a member of Tepa 13
when she was a child because the men in her family were
7
members, but she left the gang in 2013. Castellano admitted she
owned a Nissan Maxima matching the license plate number
shown in the photograph received by Marroquin. But she
testified she was asleep at home on the morning of March 14,
2018, and she denied driving through Lennox, displaying a gun,
threatening anyone, or saying, “F[uck] Lennox. Tepas.”
Castellano’s sister, Kristine Ramoz Perez, testified
Castellano lived with her, and when Perez left for work at
6:40 a.m. on March 14, 2018, Castellano’s car was parked on the
street. Further, Castellano was not a morning person and was
likely to have been sleeping. Perez also testified that in 2018
Castellano was not a gang member.
C. The Rebuttal Case
In rebuttal, Detective Chevez identified text messages sent
in March 2018 that had been retrieved from Castellano’s cell
phone, in which Castellano was greeted as “Tepa” and the death
of a Tepa 13 member was discussed. Detective Chevez also
identified a photograph taken of Castellano on November 12,
2017 in which Castellano did not have any tattoos on her face,
and a photograph taken on January 3, 2018 that showed
Castellano with Tepas 13 gang tattoos visible on her face. The
text messages and photographs were admitted into evidence.
D. Jury Instructions, Verdict, and Sentence
The trial court instructed the jury on assault with a
semiautomatic firearm, as follows: “In order to prove this crime,
each of the following elements must be proved: [¶] [1.] A person
was assaulted; [¶] and; [¶] [2.] The assault was committed
with a semiautomatic firearm. [¶] In order to prove an assault,
8
each of the following elements must be proved: [¶] [1.] A person
willfully committed an act which by its nature would probably
and directly result in the application of physical force on another
person; [¶] [2.] The person committing the act was aware of
facts that would lead a reasonable person to realize as a direct
natural and probable result of this act that physical force would
be applied to another person; [¶] and [¶] [3.] At the time the
act was committed, the person committing the act had the
present ability to apply physical force to the person of another.
[¶] A semiautomatic firearm is a firearm that extracts a fired
cartridge and chambers a fresh cartridge with each single pull of
the trigger.” Castellano’s attorney did not request an instruction
on the lesser included offense of assault with a firearm.
The jury found Castellano guilty of assault with a
semiautomatic firearm (Pen. Code,4 § 245, subd. (b); count 1) and
found true she committed the offense for the benefit of, at the
direction of, or in association with a criminal street gang
(§ 186.22, subd. (b)(1)(C)) and used a firearm in the commission of
the offense (§ 12022.5). On February 25, 2019 the trial court
sentenced Castellano to nine years in state prison comprised of
the middle term of six years for assault with a semiautomatic
firearm and the lower term of three years for the firearm
enhancement. The court imposed and stayed a 10-year sentence
for the gang enhancement. The court also imposed a $40 court
operations assessment (§ 1465.8, subd. (a)(1)), a $30 criminal
conviction assessment (Gov. Code, § 70373), a $300 restitution
fine (Pen. Code, § 1202.4, subd. (b)), and a parole/postrelease
4 All further undesignated statutory references are to the
Penal Code.
9
community supervision restitution fine in the same amount,
which the court suspended (Pen. Code, § 1202.45). Castellano did
not object to imposition of the fines and assessments or raise her
inability to pay.
The trial court’s February 25, 2019 minute order states the
criminal protective order that had been issued under section
136.2 on June 6, 2018 would remain in effect through June 6,
2021. However, the reporter’s transcript shows the trial court did
not address the protective order during the sentencing hearing.
Castellano timely appealed.
DISCUSSION
A. Substantial Evidence Supports Castellano’s Conviction of
Assault with a Semiautomatic Firearm
1. Standard of review
“When a defendant challenges the sufficiency of the
evidence for a jury finding, we review the entire record in the
light most favorable to the judgment of the trial court. We
evaluate whether substantial evidence, defined as reasonable and
credible evidence of solid value, has been disclosed, permitting
the trier of fact to find guilt beyond a reasonable doubt.” (People
v. Vargas (2020) 9 Cal.5th 793, 820; accord, People v. Penunuri
(2018) 5 Cal.5th 126, 142 (Penunuri) [“‘To assess the evidence’s
sufficiency, we review the whole record to determine whether any
rational trier of fact could have found the essential elements of
the crime or special circumstances beyond a reasonable doubt.’”].)
“‘“Conflicts and even testimony [that] is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the
10
credibility of a witness and the truth or falsity of the facts upon
which a determination depends. [Citation.] We resolve neither
credibility issues nor evidentiary conflicts; we look for substantial
evidence.”’” (Penunuri, at p. 142; accord, People v. Mendez (2019)
7 Cal.5th 680, 703.)
“‘“The standard of review is the same in cases in which the
prosecution relies mainly on circumstantial evidence.”’” (People
v. Vargas, supra, 9 Cal.5th at p. 820; accord, People v. Rivera
(2019) 7 Cal.5th 306, 324.) “‘We presume in support of the
judgment the existence of every fact the trier of fact reasonably
could infer from the evidence. [Citation.] If the circumstances
reasonably justify the trier of fact’s findings, reversal of the
judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding.’”
(People v. Westerfield (2019) 6 Cal.5th 632, 713; accord, Penunuri,
supra, 5 Cal.5th at p. 142 [“‘A reversal for insufficient evidence
“is unwarranted unless it appears ‘that upon no hypothesis
whatever is there sufficient substantial evidence to support’ ” the
jury’s verdict.’”].)
2. Assault with a semiautomatic firearm
“An assault is an unlawful attempt, coupled with a present
ability, to commit a violent injury on the person of another.”
(§ 240.)5 “Assault requires the willful commission of an act that
by its nature will probably and directly result in injury to another
(i.e., a battery), and with knowledge of the facts sufficient to
5 Section 245, subdivision (b) provides, “Any person who
commits an assault upon the person of another with a
semiautomatic firearm shall be punished by imprisonment in the
state prison for three, six, or nine years.”
11
establish that the act by its nature will probably and directly
result in such injury.” (People v. Miceli (2002) 104 Cal.App.4th
256, 269; accord, People v. Murray (2008) 167 Cal.App.4th 1133,
1139.) “To point a loaded gun in a threatening manner at
another . . . constitutes an assault, because one who does so has
the present ability to inflict a violent injury on the other and the
act by its nature will probably and directly result in such injury.”
(Miceli, at p. 269.) Conversely, “[a] long line of California
decisions holds that an assault is not committed by a person’s
merely pointing an (unloaded) gun in a threatening manner at
another person,” because without evidence the gun was loaded,
the proof is insufficient a defendant had the present ability to
inflict a violent injury. (People v. Rodriguez (1999) 20 Cal.4th 1,
11, fn. 3 (Rodriguez); Penunuri, supra, 5 Cal.5th at p. 147; Miceli,
at p. 269; People v. Lochtefeld (2000) 77 Cal.App.4th 533, 542
(Lochtefeld).)
“A defendant’s own words and conduct in the course of an
offense may support a rational fact finder’s determination that
[the defendant] used a loaded weapon.” (Rodriguez, supra,20 Cal.4th at p. 13; see People v. Mearse (1949) 93 Cal.App.2d
834, 837 [“The acts and language used by an accused person
while carrying a gun may constitute an admission by conduct
that the gun is loaded.”].) “[T]he fact that the gun was loaded
may be inferred from circumstantial evidence, and we will uphold
an assault conviction if the inference is reasonable.” (Penunuri,
supra, 5 Cal.5th at p. 147; see Rodriguez, at p. 11, fn. 3 [“[W]e
address the required quantum of circumstantial evidence
necessary to demonstrate present ability to inflict injury and thus
to sustain a conviction of assault with a firearm.”].)
12
Rodriguez is instructive. There, the defendant, a gang
member, threatened a witness to a shooting the defendant had
committed the previous day. (Rodriguez, supra, 20 Cal.4th at
pp. 7-8.) Confronting the witness, the defendant “raised his shirt,
revealing a gun in his waistband. When [the witness] remained
standing in place, defendant took out his gun, put the barrel just
under [the witness’s] chin, and told him to keep quiet because ‘I
could do to you what I did to them.’” (Id. at p. 7.) The Court of
Appeal reversed the defendant’s assault conviction, observing the
gun from the prior day’s shooting was never recovered, and
therefore the gun the defendant used must have been different
because the defendant would have logically disposed of the
murder weapon. (Id. at p. 12.) The Supreme Court reversed the
judgment of the Court of Appeal, criticizing the appellate court
for focusing “on what it found lacking in the prosecution’s case
and the strength of the inferences it drew from the evidence
presented, rejecting contrary (but, in our view, equally logical)
inferences the jury might have drawn.” (Ibid.) Because the
defendant told the witness “‘I could do to you what I did to
them,’” “the jury could reasonably have interpreted the warning
as an admission by defendant of his present ability to harm [the
witness].” (Ibid.) And while the absence of evidence the
defendant sought out the witness “might tend to support a
conclusion contrary to that reached by this jury, [that] absence
does not so undermine the jury’s reasoning as to warrant
overturning its verdict.” (Id. at p. 14.)
The Supreme Court in Rodriguez cited with approval
People v. Montgomery (1911) 15 Cal.App. 315, 317-319, in which
the Court of Appeal held that despite the absence of direct
evidence the gun used in an assault was loaded and defendant’s
13
testimony it was not, the jury could have reasonably found the
gun was loaded based on evidence the defendant was enraged
when he left a fight with the victim and later returned and
declared, “‘I have got you now,’” as he pointed a gun at the victim.
(Rodriguez, supra, 20 Cal.4th at p. 13; see Lochtefeld, supra,
77 Cal.App.4th at pp. 541-542 [defendant’s displaying the handle
of a gun and threatening to shoot a woman if she did not move,
then later pointing a gun at police officers with his finger on the
trigger was sufficient evidence from which the jury could infer
the gun was operable].)
3. Substantial evidence supports the jury’s conclusion
Castellano’s gun was loaded
Castellano contends there was not substantial evidence to
support an inference the gun used in the assault on Munoz was
loaded. The evidence was sufficient. As discussed, the People
presented evidence Castellano was a “soldier” in the Tepa 13
gang who entered “deep within Lennox 13 territory,” rolled down
her car window, and pointed a gun at Munoz while declaring her
gang affiliation and cursing the rival Lennox 13 gang. As
Detective Chevez testified, when a gang member goes into rival
territory, “it’s usually to put in work to commit crimes,” including
to shoot people. Further, Castellano made the threat openly
during the daytime, which would disrespect the rival gang. Tepa
13 and Lennox 13 were feuding archrivals whose members “shoot
at each other all the time.” Although Detective Chevez testified a
gang member would not generally fire a gun at someone who was
not a gang member, if the nonmember walked away or resisted,
“then something would happen.” Further, by disrespecting
Lennox 13, Castellano’s conduct could have provoked a violent
14
response from a member of Lennox 13 in the area at the time of
Castellano’s “banging” on Munoz. Based on this evidence, the
jury could reasonably have concluded Castellano would not have
entered Lennox 13 territory and confronted Munoz in a manner
that disrespected Lennox 13 by pointing an unloaded gun
because she needed to be prepared to respond to a possible
violent response. (See Rodriguez, supra, 20 Cal.4th at p. 13;
Lochtefeld, supra, 77 Cal.App.4th at p. 542.)
Castellano contends Rodriguez and Lochtefeld are
distinguishable because in those cases the defendants expressly
threatened to shoot the victims. But even if the absence of
specific threats to shoot could have supported a finding the gun
was not loaded, it does not mean there was not substantial
evidence to the contrary. (Rodriguez, supra, 20 Cal.4th at p. 14.)
B. The Trial Court Did Not Have a Duty To Instruct the Jury
on the Lesser Included Offense of Assault with a Firearm
1. Applicable law and standard of review
“Under California law, trial courts must instruct the jury
on lesser included offenses of the charged crime if substantial
evidence supports the conclusion that the defendant committed
the lesser included offense and not the greater offense.” (People
v. Gonzalez (2018) 5 Cal.5th 186, 196; accord, People v. Smith
(2013) 57 Cal.4th 232, 239 [even in the absence of a request, a
trial court must instruct “‘on lesser included offenses when the
evidence raises a question as to whether all of the elements of the
charged offense were present [citation], but not when there is no
evidence that the offense was less than that charged’”]; People v.
Breverman (1998) 19 Cal.4th 142, 154-156.) “The jury’s exposure
to ‘the full range of possible verdicts—not limited by the strategy,
15
ignorance, or mistake of the parties . . . ensure[s] that the verdict
is no harsher or more lenient than the evidence merits.’”
(Gonzalez, at p. 196; accord, Smith, at p. 239 [“‘[T]he rule
prevents either party, whether by design or inadvertence, from
forcing an all-or-nothing choice between conviction of the stated
offense on the one hand, or complete acquittal on the other.’”].)
“‘“[T]he existence of ‘any evidence, no matter how weak’ will
not justify instructions on a lesser included offense, but such
instructions are required whenever evidence that the defendant
is guilty only of the lesser offense is ‘substantial enough to merit
consideration’ by the jury.”’” (People v. Wyatt (2012) 55 Cal.4th
694, 698; accord, People v. Landry (2016) 2 Cal.5th 52, 96
[“‘Substantial evidence in this context is evidence from which a
reasonable jury could conclude that the defendant committed the
lesser, but not the greater, offense.’”].) “In this regard, the
testimony of a single witness, including that of a defendant, may
suffice to require lesser included offense instructions.” (Wyatt, at
p. 698.) However, the trial court has no duty to instruct on a
lesser included offense where “it would be speculative at best to
construe the trial evidence . . . as supporting a verdict of only [the
lesser offense].” (Id. at p. 704.)
We independently review whether the trial court
erroneously failed to instruct on a lesser included offense. (People
v. Trujeque (2015) 61 Cal.4th 227, 271; People v. Wang (2020)
46 Cal.App.5th 1055, 1069.) In determining whether the trial
court erred, we consider the evidence in the light most favorable
to the defendant. (People v. Cortez (2018) 24 Cal.App.5th 807,
811; People v. Brothers (2015) 236 Cal.App.4th 24, 30.)
16
2. The trial court had no duty to instruct the jury on
assault with a firearm because there was no evidence
Castellano committed an assault with a firearm that
was not semiautomatic
Castellano contends the trial court erred in not instructing
the jury sua sponte on the lesser included offense of assault with
a firearm (§ 245, subd. (a)(2)). Castellano is correct that assault
with a firearm is a lesser included offense of assault with a
semiautomatic firearm. (People v. Martinez (2012)
208 Cal.App.4th 197, 199.) But there was not sufficient evidence
to support a finding by the jury Castellano committed an assault
with a firearm that was not semiautomatic.
The record contains substantial evidence the gun used to
assault Munoz was semiautomatic. Munoz, who was only six or
seven feet from Castellano, testified Castellano’s gun was “like a
semi-automatic.” Asked what made him think the gun was
semiautomatic, Munoz explained, “It was the kind of gun that
police use.” Munoz testified he knew what revolvers looked like,
describing them as having a cylinder in the middle, “[l]ike those
cowboy guns.” By contrast, Castellano’s gun was flat and did not
have a cylinder in the middle. Munoz’s testimony was
corroborated by Detective Chevez, who testified he and most
police officers carry semiautomatic firearms. Detective Chevez
explained a semiautomatic gun is “the opposite of a revolver,”
which has a round cylinder. He added that a semiautomatic gun
automatically feeds ammunition from the magazine.
Castellano identifies no contrary evidence that the gun was
not semiautomatic, nor did his attorney expose weaknesses in
Munoz’s testimony through cross-examination. Instead,
Castellano argues Munoz’s testimony did not establish he had the
17
expertise to determine whether the gun “extracts a fired
cartridge and chambers a fresh cartridge with each single pull of
the trigger,” which is the definition of a semiautomatic firearm in
the jury instructions. But recourse to the technical definition of a
semiautomatic firearm was not necessary here because Munoz
testified the gun was semiautomatic based on his description of
the gun as flat, like those used by the police, without a round
cylinder, which Detective Chevez confirmed describes a
semiautomatic gun, not a revolver. Detective Chevez also
testified a semiautomatic firearm is one that “is automatically fed
[ammunition] with a magazine.”
Castellano also contends Detective Chevez did not testify
that all flat guns are semiautomatic, although he testified
semiautomatic weapons were the “opposite” of revolvers, which
have round cylinders. Had Castellano presented evidence that
flat guns could be nonsemiautomatic guns, this would be
sufficient to support a conclusion Castellano committed the lesser
offense of assault with a firearm and not the greater offense of
assault with a semiautomatic firearm. But she did not, nor did
she otherwise challenge Detective Chevez’s testimony. The
absence of an opinion by Detective Chevez as to the possibility of
a hypothetical flat, nonsemiautomatic gun is not evidence
“‘“‘substantial enough to merit consideration’ by the jury.”’”
(People v. Wyatt, supra, 55 Cal.4th at p. 698; accord, People v.
Landry, supra, 2 Cal.5th at p. 96.)
C. Remand Is Not Warranted for an Ability-to-pay Hearing on
the Fines and Assessments Imposed by the Trial Court
Castellano contends she is entitled to an ability-to-pay
hearing as to the fines and assessments imposed by the trial
18
court, relying on this court’s opinion in Dueñas, supra,
30 Cal.App.5th 1157. Castellano acknowledges Dueñas was filed
on January 8, 2019—six weeks before her sentencing hearing on
February 23, 2019—but she argues forfeiture should not apply
because her counsel was unaware of the decision and Dueñas
marked a dramatic change in the law implicating her
fundamental right to due process. Forfeiture is proper here.
In Dueñas, this court concluded “the assessment provisions
of Government Code section 70373 and Penal Code section
1465.8, if imposed without a determination that the defendant is
able to pay, are . . . fundamentally unfair; imposing these
assessments upon indigent defendants without a determination
that they have the present ability to pay violates due process
under both the United States Constitution and the California
Constitution.” (Dueñas, supra, 30 Cal.App.5th at p. 1168; accord,
People v. Belloso (2019) 42 Cal.App.5th 647, 654-655 (Belloso),
review granted Mar. 11, 2020, S259755.)6 In contrast to court
6 Several Courts of Appeal have applied this court’s analysis
in Dueñas (e.g., People v. Santos (2019) 38 Cal.App.5th 923, 929-
934; People v. Kopp (2019) 38 Cal.App.5th 47, 95-96, review
granted Nov. 13, 2019, S257844 [applying due process analysis to
court assessments]; People v. Jones (2019) 36 Cal.App.5th 1028,
1030-1035), or partially followed Dueñas (e.g., People v. Valles
(2020) 49 Cal.App.5th 156, 162-163, review granted July 22,
2020, S262757 [concluding due process requires ability-to-pay
hearing before imposition of court facilities fee, not restitution
fines]). Other courts have rejected this court’s due process
analysis (e.g., People v. Cota (2020) 45 Cal.App.5th 786, 794-795;
People v. Kingston (2019) 41 Cal.App.5th 272, 279-281; People v.
Hicks (2019) 40 Cal.App.5th 320, 326, review granted Nov. 26,
2019, S258946), or concluded the imposition of fines and fees
19
assessments, a restitution fine under section 1202.4, subdivision
(b), “is intended to be, and is recognized as, additional
punishment for a crime.” (Dueñas, at p. 1169; accord, Belloso, at
p. 655.)7 Section 1202.4, subdivision (c), expressly provides a
defendant’s inability to pay a restitution fine may not be
considered as a “compelling and extraordinary reason” not to
impose the statutory minimum fine. However, as this court held
in Dueñas, to avoid the serious constitutional questions raised by
imposition of such a fine on an indigent defendant, “although the
trial court is required by . . . section 1202.4 to impose a
restitution fine, the court must stay the execution of the fine until
and unless the People demonstrate that the defendant has the
ability to pay the fine.” (Dueñas, at p. 1172; accord, Belloso, at
p. 655.)
should be analyzed under the excessive fines clause of the Eighth
Amendment (e.g., People v. Cowan (2020) 47 Cal.App.5th 32, 42,
review granted June 17, 2020, S261952; People v. Aviles (2019)
39 Cal.App.5th 1055, 1061; Kopp, at pp. 96-97 [applying excessive
fines analysis to restitution fines]). The Supreme Court granted
review of the decision in Kopp to decide the following issues:
“Must a court consider a defendant’s ability to pay before
imposing or executing fines, fees, and assessments? If so, which
party bears the burden of proof regarding defendant’s inability to
pay?” (Supreme Ct. Minutes, Nov. 13, 2019, p. 1622; see Kopp,
supra, 38 Cal.App.5th 47.)
7 Our analysis of restitution fines under section 1202.4,
subdivision (b), also applies to parole/postrelease community
supervision restitution fines under section 1202.45, because these
fines must be imposed “in the same amount as that imposed
pursuant to subdivision (b) of Section 1202.4.” (§ 1202.45, subd.
(a).)
20
In People v. Castellano (2019) 33 Cal.App.5th 485, 489
(Castellano), we held a defendant’s failure to object to the
imposition of fines and fees before Dueñas was filed does not
constitute forfeiture of that issue. As we explained, “[N]o
California court prior to Dueñas had held it was unconstitutional
to impose fines, fees or assessments without a determination of
the defendant’s ability to pay. . . . When, as here, the defendant’s
challenge on direct appeal is based on a newly announced
constitutional principle that could not reasonably have been
anticipated at the time of trial, reviewing courts have declined to
find forfeiture.” (Castellano, at p. 489; accord, Belloso, supra,
42 Cal.App.5th at p. 662; People v. Santos (2019) 38 Cal.App.5th
923, 931-932; People v. Johnson (2019) 35 Cal.App.5th 134, 137-
138; contra, People v. Bipialaka (2019) 34 Cal.App.5th 455, 464
[defendant forfeited challenge by not objecting to the assessments
and restitution fine at sentencing]; People v. Frandsen (2019)
33 Cal.App.5th 1126, 1153-1154 [same].)
The People contend, and we agree, Castellano forfeited her
challenge because Castellano was sentenced six weeks after
Dueñas was decided. Unlike in Castellano, her challenge on
appeal is not “based on a newly announced constitutional
principle that could not reasonably have been anticipated at the
time of trial.” (Castellano, supra, 33 Cal.App.5th at p. 489.)
Additionally, there are no special circumstances or legal issues
that would warrant us to exercise our discretion to excuse
forfeiture. (In re S.B. (2004) 32 Cal.4th 1287, 1293 [“application
of the forfeiture rule is not automatic,” although “the appellate
court’s discretion to excuse forfeiture should be exercised rarely
and only in cases presenting an important legal issue”]; Unzueta
21
v. Akopyan (2019) 42 Cal.App.5th 199, 215 [“‘[N]either forfeiture
nor application of the forfeiture rule is automatic.’”].)
D. The February 25, 2019 Minute Order Must Be Corrected To
Strike Reference to a Continuing Criminal Protective Order
Castellano contends, the People concede, and we agree the
February 25, 2019 minute order must be corrected to strike any
reference to a criminal protective order extending through
June 6, 2021 because the order lacks statutory authorization and
is not reflected in the trial court’s oral pronouncements at the
sentencing hearing.
The trial court8 issued the criminal protective order at a
pretrial hearing on June 6, 2018 pursuant to section 136.2, which
permits a court to enter orders to protect witnesses and victims.
(§ 136.2, subd. (a)(1) [court may issue criminal protective order
“[u]pon a good cause belief that harm to, or intimidation or
dissuasion of, a victim or witness has occurred or is reasonably
likely to occur”]; People v. Selga (2008) 162 Cal.App.4th 113, 118.)
“[P]rotective orders issued under section 136.2 [are] operative
only during the pendency of the criminal proceedings and as
prejudgment orders.”9 (Selga, at pp. 118-119; accord, People v.
Ponce (2009) 173 Cal.App.4th 378, 382.) Thus, the statement in
the February 25, 2019 minute order that the criminal protective
order would continue in effect until June 6, 2021 was erroneous.
8 Judge Victor Wright.
9 Section 136.2, subdivision (i), allows a criminal protective
order to remain in place for up to 10 years in specified
circumstances not applicable here.
22
In addition, there is no reference to a protective order in
the reporter’s transcript of the February 25, 2019 sentencing
hearing. “The record of the oral pronouncement of the court
controls over the clerk’s minute order . . . .” (People v. Farell
(2002) 28 Cal.4th 381, 384, fn. 2, accord, People v. Sanchez (2019)
38 Cal.App.5th 907, 919.) Appellate courts may correct clerical
errors in a clerk’s minute order to reflect the court’s oral
pronouncement. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
Accordingly, we order the February 25, 2019 minute order
corrected to strike any reference to a criminal protective order.
DISPOSITION
We order the February 25, 2019 minute order corrected to
strike any reference to a criminal protective order. We otherwise
affirm.
FEUER, J.
I concur:
RICHARDSON, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
23
SEGAL, Acting P. J., Concurring and Dissenting.
I agree that, with the evidence Castellano declared her
gang affiliation and cursed a rival gang when she pointed a
firearm at Munoz, there was substantial evidence the gun
Castellano pointed was loaded (although I don’t think it matters
she made the gang challenge during the daytime) and that
Castellano committed the crime of assault with a semiautomatic
firearm. But without that evidence the question whether
substantial evidence supported the finding the gun was loaded is
a closer call. Absent evidence of the gang challenge, we would
essentially be holding that, any time a gang member points a
gun, jurors may presume it is loaded, at least when the gang
member is in rival gang territory.
In my view, however, the trial court erred in not
instructing the jury on the lesser included offense of assault with
a (not necessarily semiautomatic) firearm. Munoz did say that
the firearm he saw “was like a semiautomatic” gun and that he
thought it was semiautomatic because it looked more like the
guns he has seen police use than those he has seen cowboys use.
Hardly an expert opinion, but admissible and relevant to the
issue whether the firearm Castellano pointed at him was a
semiautomatic firearm. But there was no evidence Munoz had
any experience with firearms or riding the range; his opinion was
essentially speculation based on observing police officers and
watching movies and television shows about cowboys. In
addition, Munoz only saw the gun for a “matter of seconds” from
six to seven feet away. While Detective David Chevez did say
most police officers use semiautomatic firearms, he did not say all
of them do.10 By not instructing the jury on the lesser included
offense of assault with a firearm, the court improperly presented
“the jury with ‘an “unwarranted all-or-nothing choice”’” (People v.
Eid (2014) 59 Cal.4th 650, 657): convicting Castellano of assault
with a semiautomatic firearm or, even if the jurors believed the
People proved beyond a reasonable doubt the firearm Munoz saw
for a few seconds was a firearm but not a semiautomatic one,
acquitting her. (See People v. Vargas (2020) 9 Cal.5th 793, 827
[“A trial court must instruct a jury on lesser included offenses
when the evidence raises questions regarding whether every
element of a charged offense is present.”]; People v. Richards
(2017) 18 Cal.App.5th 549, 559-560 [trial court erred in not
instructing on a lesser included offense where the jury could have
found the People did not prove one or two elements of the greater
offense]; People v. Walker (2015) 237 Cal.App.4th 111, 116-117
[trial court erred in not instructing on possession of marijuana, as
a lesser included offense of possession of marijuana for sale,
where “[w]ithout a simple possession instruction, the jury had
only two choices: convict on the felony sales count or acquit
altogether,” which “is precisely the all-or-nothing choice [the
Supreme Court] concluded was improper,” and “the jury should
10 The official website for the Los Angeles Police Department
identifies the guns officers “are authorized to use, as their on
duty primary weapon.” (.) None of them appears to be a
revolver. But the statement on the website is carefully limited to
an officer’s “primary” weapon. As we all know from the movies
and television shows Munoz watches, officers often carry a
“secondary” weapon in an ankle holster, shoulder holster, or
other concealed area.
2
have been instructed on a third choice, to wit, simple
possession”].)
In concluding the trial court did not have a duty to instruct
on the lesser included offense of assault with a firearm, the
majority states the “record contains substantial evidence the gun
used to assault Munoz was semiautomatic.” (Maj. opn. ante, at
p. 17.) I agree with the latter statement, but the majority’s
conclusion does not follow from it. Certainly Munoz’s testimony
was substantial evidence the gun he saw was semiautomatic.
But that’s not the test for determining whether the trial court
has a duty to instruct on a lesser included offense. The correct
test is not whether there was substantial evidence to support the
verdict, but whether there was substantial evidence from which a
reasonable factfinder could have found the defendant guilty of
the lesser but not the greater offense. (See People v. Breverman
(1998) 19 Cal.4th 142, 178, fn. 25 [“That the jury chose the
greater over acquittal, and that the evidence technically permits
conviction of the greater, does not resolve the question whether,
‘after an examination of the entire cause, including the evidence’
(Cal. Const., art. VI, § 13), it appears reasonably probable the
jury would nonetheless have elected the lesser if given that
choice.”]; People v. Brown (2016) 245 Cal.App.4th 140, 155 [“‘it
does not matter that the jury chose to convict the defendant of
the greater offense over acquittal or that the defendant was
convicted of the greater offense on sufficient evidence’”]; People v.
Woods (2015) 241 Cal.App.4th 461, 475 [“the question is not
whether substantial evidence supports [the defendant’s]
conviction on the greater offenses,” but “whether, in assessing
and weighing the evidence independently, the jury could have
reasonably concluded that [the defendant] committed” the lesser
3
offense].) The two inquiries are quite different. Although there
was substantial evidence Castellano committed an assault with a
semiautomatic firearm, there was also substantial evidence she
committed an assault with a non-semiautomatic firearm. (See
People v. Huggins (2006) 38 Cal.4th 175, 215 [“‘When there is
substantial evidence that an element of the charged offense is
missing, but that the accused is guilty of a lesser included
offense, the court must instruct upon the lesser included offense,
and must allow the jury to return the lesser conviction, even if
not requested to do so.’”]; People v. Campbell (2020)
51 Cal.App.5th 463, 501 [same].)
I acknowledge the trial court does not have a duty to
instruct on a lesser included offense if “there is no proof, other
than an unexplainable rejection of the prosecution’s evidence,
that the offense was less than that charged . . . .” (People v. Kraft
(2000) 23 Cal.4th 978, 1063; see People v. Walker, supra,
237 Cal.App.4th at p. 117.) But rejection of the prosecution’s
evidence here was easily explainable. The prosecution did not
recover the firearm or present any expert testimony about
firearms in general, the difference between semiautomatic and
other kinds of firearms, or even what kind of firearm Castellano
may have used. There was only one witness—with no evidence of
his knowledge of or expertise in firearms—led by a prosecutor on
direct examination to say the gun was flat and not the kind of
gun used in the Wild West. The trial court did not instruct the
jury to consider, in determining whether Castellano used a
semiautomatic firearm, what kinds of guns cops and cowboys use.
The court instructed the jury that a “semiautomatic firearm is a
firearm that extracts a fired cartridge and chambers a fresh
cartridge with each single pull of the trigger,” and there was no
4
evidence of any of that. It does not take much to explain why one
or more jurors could have rejected this evidence as proving
beyond a reasonable doubt that Castellano used a semiautomatic
firearm.
Finally, on the issue of prejudice, there is a reasonable
probability the jury would have convicted Castellano of assault
with a firearm had the court instructed on that lesser included
offense. (See People v. Gonzalez (2018) 5 Cal.5th 186, 200, fn. 4
[“[People v. Watson (1956) 46 Cal.2d 818] applies to the failure to
instruct on lesser included offenses”].) Given the relatively weak
testimony about what the gun looked like, the absence of any
expert testimony about different kinds of firearms and how to tell
them apart, and the failure to recover the gun Castellano used,
the jury easily could have found that the People proved beyond a
reasonable doubt that the weapon Castellano pointed at Munoz
was a firearm, but that the People did not prove beyond a
reasonable doubt it was a semiautomatic firearm.
For these reasons, I would reverse the judgment with
directions to allow the People to retry Castellano on the charge of
assault with a semiautomatic firearm, with the court giving an
instruction on the lesser included offense of assault with a
firearm, or to accept a reduction of her conviction to the lesser
offense. (See People v. Richards, supra, 18 Cal.App.5th at
pp. 560-561 [“When a greater offense must be reversed, but a
lesser included offense could be affirmed, ‘we give the prosecutor
the option of retrying the greater offense, or accepting a reduction
to the lesser offense.’”].) Castellano would have an opportunity to
request a hearing on her ability to pay any fines or fees the court
imposes at resentencing.
SEGAL, Acting P. J.
5