People v. Castro CA4/1 ( 2023 )

Filed 5/16/23 P. v. Castro 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079230
Plaintiff and Respondent,
v. (Super. Ct. No. RIF1403674)
FRANCISCO ALEJANDRO CASTRO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Samuel Diaz, Jr., Judge. Affirmed.
Robert Boyce, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A.
Sevidal and Melissa Mandel, Deputy Attorneys General, for Plaintiff and
Respondent.
Francisco Alejandro Castro forcibly raped his biological daughter for
the first time when she was seven years old. Over the next five years, he
raped her countless times, committed other forcible sex acts upon her, and
tortured her. When Castro’s daughter began speaking out, he coerced her to
cut her wrists, then returned her to her mother in Mexico, falsely claiming
she had attempted suicide and that the injuries he caused were self-inflicted.
Castro’s initial trial resulted in the jury convicting him of torture
(Count 10; Pen. Code,1 § 206), but unable to reach a verdict on the rest of the
charged crimes, resulting in a mistrial on those charges. After a second trial,
the jury convicted him of the remaining charged crimes, including
perpetrating a forcible lewd act on a child (Count 1; § 288, subd. (b));
aggravated sexual assault of a child by rape (Counts 2, 4, 5, 7; § 269,
subd. (a)(1); § 261, subd. (a)(2) & (6)); aggravated sexual assault of a child by
sexual penetration (Count 3; § 269, subd. (a)(5); § 289, subd. (a)); aggravated
sexual assault of a child by oral copulation (Counts 6, 8, 9; § 269, subd. (a)(4);
§ 288a); and sexual intercourse or sodomy with a child under 10 (Counts 11,
12; § 288.7, subd. (a)).
On appeal from the judgment of conviction, Castro raises three claims
of error. First, he contends the trial court erred by admitting into evidence
journal entries he made six years before the charged offenses occurred, which
detailed his pursuit of his 16-year-old cousin when he was 24. Second, Castro
asserts the prosecutor committed prejudicial misconduct by telling the jury
that Castro’s daughter could not, as a matter of law, consent to the sex acts
committed against her. Finally, Castro argues the court erred by failing to
instruct on lesser included offenses, despite his tactical decision at trial to
waive those instructions in order to leave the jury with an all or nothing
1 All subsequent undesignated statutory references are to the Penal
Code.
2
choice on the charged offenses. We reject Castro’s arguments and affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Prosecution’s Case
Castro’s daughter, hereinafter Jane Doe, was born in Mexicali, Mexico
in late 1997. Doe met Castro for the first time around age five, when she
lived with her mother in Mexico and Castro lived in the United States. When
Doe was seven years old, her parents decided she should live with Castro.
Castro smuggled Doe across the border in the trunk of his car and Doe stayed
with him for several days. Doe became homesick, however, and went back to
live with her mother.
Later the same year, Doe returned to the United States to live with
Castro. She remained with Castro until she was 14 years old and the events
giving rise to the present case came to light. During her time with Castro,
Doe moved around a lot and attended many schools. She lived with Castro
and, for some of the time, with his girlfriend Blanca, who had a son with
Castro in 2009. Doe returned to Mexico in January 2012.
During her years in the United States, Doe was subjected to repeated
acts of sexual abuse and physical violence by Castro. The abuse began
shortly after Doe began living with Castro when she was in the third grade
and between seven and eight years old. At that time they lived at the Palm
Vista Apartments. The first incident of sexual abuse occurred in the living
room, when they were play fighting on the sofa. Doe recalled sitting on
Castro’s belly when he touched her chest and vagina. She pushed him away
and ran to her room. Castro followed her and taunted her, calling her a
chicken and a scaredy cat. Castro also told Doe that if she told anyone he
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would put her family in jail, or they would get in trouble, and he would tell
everyone she started it.
Doe also recalled in vivid detail that Castro raped her on the hallway
floor of the Palm Vista apartment. She testified that he held her hands down
and penetrated her vagina with his penis. Doe told Castro it hurt and tried
to fight him off. Castro ejaculated during this encounter and told her she
could not get pregnant because she had not yet gotten her period.
While they lived at the Palm Vista apartment, Castro had sex with Doe
in the hallway so often she could not remember the number of times it
occurred. During this timeframe, Castro began having Doe perform oral sex
on him and orally copulating Doe. Castro also told Doe she was not
experienced at kissing, so he began kissing her on the mouth, using his
tongue, as if they were a couple. Doe testified that during this time frame, on
multiple occasions she woke up from sleeping with Castro’s penis in her
vagina.
Doe also testified that in this time period, Castro told her that she was
the one who started the sexual acts. Doe would argue that she did not, but
Castro told her this so frequently that she began to believe it was true. Doe
testified that when Castro would get upset with her or ignore her or take
something away, she would engage in sex acts with Castro to make him
happy. In addition, Castro would punish Doe physically and sexually, and
Doe would offer sexual acts as a way to avoid punishment.
In addition to the sexual abuse, Castro also physically abused Doe
when they lived in the Palm Vista apartment. Once, he kicked her in the
chest while she was sitting on the floor, causing her to fall against a sharp
cabinet and cut her back. Another time he punched her so hard in the
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stomach it knocked the air out of her. He also used his knuckles to hit her
hard on the top of her head.
The abuse at the Palm Visa Apartments occurred between 2006 and
2007, when Doe was between eight and nine years old. During this period,
Castro had sex with Doe approximately three times per month, and she
remembered performing oral sex on him on at least twice.
When Doe was in fourth or fifth grade, she, Castro, and Blanca moved
into Castro’s sister Nellie’s condo, and Doe transferred to a different school.
The family spent time with Blanca’s niece, who is a year or two older than
Doe. Once, Castro, Doe, and Blanca’s niece were play fighting. Doe testified
that Castro went into Doe’s room with Blanca’s niece and closed the door, and
then came out and wiped his mouth, insinuating to Doe he had been kissing
the other child to make Doe jealous by saying the other child was better than
her. At the time, Doe felt like she was in a relationship with Castro, which
she thought was normal because Castro told her it was.
Also while living in Nellie’s condo, Castro introduced Doe to alcohol.
She would drink with Castro and by her herself, sometimes to the point of
passing out. While living in Nellie’s condo, Castro continued to engage in
sexual activity with Doe at least once a month. Doe testified that during this
time, she tried to enjoy the sex acts because it made her father happy, but
she was embarrassed. He wanted her to moan but she could not do it and she
would cover her face because she did not like him looking at her.
There were times when Castro had sex with Doe outside of the house.
Once, they went on a camping trip with others on the Baja peninsula in
Mexico. At night, Castro took Doe off-roading in his Jeep and parked in the
middle of the desert to have sex with her. She was scared because others
were driving nearby. On another occasion, Castro had sex with Doe in a
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hotel room when they were traveling for a soccer tournament. On the day
she got her green card, when she was nine years old, Castro had sex with her
in a hotel room in Juarez, Mexico.
After living in Nellie’s condo, Castro, Blanca, and Doe moved into a
house in Moreno Valley, where Doe’s brother was born. After that, the family
moved into a house in Corona with Blanca’s parents. In this house, Doe and
Castro shared a queen-sized bed in one bedroom, while Blanca and Edward
slept in another room. Doe testified that the bedroom door was locked most
of the time. This sleeping arrangement had become normal and no one spoke
about it. During this time, the frequency of the sexual abuse increased. Doe
estimated it occurred five times per month. Castro continued to give Doe
alcohol during this time.
At one point during this time period, Doe thought she might be
pregnant. Castro did not use any form of birth control and told Doe he
wanted to have a family with her. Castro brought Doe a pregnancy test,
which she used and got a negative result. Blanca testified that she found the
test and asked Castro about it; he told her he had gotten the test for Doe
because she said she had sex with two boys at a party.
On another occasion while they lived in Corona, Castro was mad at Doe
and so she cut her wrist with a steak knife because she thought it would
please Castro to see she was hurting herself for him. Another time in
Corona, Castro and Doe were in the bathroom when he hit Doe, causing her
to fall to the floor, and then he shoved her head against the toilet. Blanca
tried to come in to get Doe out of the bathroom, but Castro locked her out.
Around this time, Doe showed Blanca a small bruise on her cheek and said
Castro had punched her. Blanca testified that Castro admitted this abuse to
her.
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On Doe’s thirteenth birthday, she was sleeping on the floor in the room
next to the bedroom she normally shared with Castro and awoke to find
Castro next to her, hitting her all over. Doe began crying, hoping that Blanca
would find her and give her the chance to tell her about the ongoing abuse.
Castro then called Doe to come into their bedroom, she got into the bed with
him, and Castro apologized. Blanca then came into the room, and Castro told
Blanca he had been hitting Doe. This led to an argument between Castro
and Blanca, and they ended their relationship as a result. Blanca took Doe to
Castro’s sister Claudia’s house, and Castro eventually moved into Claudia’s
house with Doe.
Doe was heartbroken by the absence of Blanca from her life. Doe loved
Blanca like a mother, but was also angry because Blanca knew Castro
physically abused Doe, but did nothing to stop it.
When Doe started seventh grade at a new school, Castro drove her to
and from school and made her tell him every detail about her days. She
transferred to another school during her seventh grade year. During this
time, Castro continued to sexually abuse Doe. In Claudia’s house, Doe and
Castro lived there with Claudia and Castro’s mother. As in the prior home,
Doe and Castro shared a room and a bed. The sexual acts continued and
increased in frequency to at least once a week or more. Sometimes alcohol
was involved.
One time in this period, when Doe was 13 years old, she and Castro
were having sex in the bathroom when Castro’s mother tried to open the
door. They said something to her, she walked away, and they continued
having sex. Doe testified that in this period, Castro would initiate sex with
Doe while she was sleeping and she would pretend to remain sleeping and
cover her face with her hair so Castro could not see her. Around this time,
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Castro would have Doe “dance for him like a stripper.” Castro also showed
her videos he had taken of himself having sex with her when she was drunk
or passed out. Castro also had Doe pose for pictures naked and took pictures
of her vagina.
Castro was also controlling in other ways in this time period. At one
point, he insisted Doe carry a microphone to school so he could listen to her
conversations while he was parked outside. He also read her text messages.
Doe had few friends and her life revolved around school, soccer, and Castro.
Around this time, Doe began to take steps to protect herself from Castro. She
told Claudia about the sexual abuse, who responded that Doe was making up
the allegations because she was mad at Castro. The family did bring in a
priest to talk to Doe, but no protective measures were taken.
Then, one day after school, Castro saw Doe hug a boy. When Doe did
not tell Castro about the hug, he became angry and told Doe he wanted to
teach her a lesson. He gave her a choice; he would slap her or burn her. She
chose the slap. Castro slapped her hard in the face, causing her to fall to the
ground. Then, Castro told Doe that was not enough, and he grabbed a knife
and a lighter and took her downstairs.
Doe was crying and scared. Castro laid her face down, tied her hands
and legs with zip ties, and put a towel in her mouth. He then held the lighter
to the knife until the knife turned black-hot. Doe lay on the ground, begging
Castro not to burn her. He then sat on her lower back, put the hot knife to
her bare skin, and slowly counted to five. Castro then cut off the zip ties and
told Doe to go upstairs and act normal. He cleaned the burns on her butt
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with alcohol and gauze that would stick to the burned skin, which was
peeling off. The burn left a scar.2
Doe told Castro’s mother about the burn. The family, Castro’s mother
and two sisters, gathered to talk to Castro and told him that they had
contacted child protective services and a social worker was coming to the
house. The day after Castro’s family called child protective services,
January 17, 2012, Castro took Doe to her mother’s home in Mexico. Before
they left, Castro and Doe planned for Doe to tell her mother that she was
harming herself, including the burn.
Doe testified that before leaving for Mexico, at Castro’s instruction she
also cut herself using razor blades along her left arm. Castro took pictures of
the cuts, and Doe thought he seemed impressed.3 Castro also told Doe he
would erase the pictures and videos he had taken, and they went to the
desert and burned her diaries. Castro told her this was a fresh start and they
were leaving the past behind.
Castro drove Doe back to Mexico. Once there, Castro told Doe’s mother
she was depressed and misbehaving, and Doe went along with his story.
Castro said Doe had tried to kill herself and they showed Doe’s mother the
cuts.
A couple of months later, Castro came back to get Doe. Doe, however,
refused to go. Her mother came home and got mad that Castro was trying to
take Doe against her will. Castro, irate, threatened he had documents to
2 This incident was the basis for the torture conviction (count 10)
obtained by the prosecution at the first trial.
3 A forensic investigation of a hard drive found in Castro’s room
contained the photos, one photo of the cuts just after they occurred and
several taken a few days later.
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hurt the family, then left. Doe’s mother worried that she was suicidal, but
Doe told her it was all a lie. Doe told her mother that Castro had burned her
and cut her, and physically abused her. She reported the abuse to her
mother gradually. She showed her mother the burn and told her how Castro
had caused it. She also said the cuts on her arms were part of a punishment
by Castro, and that he would hit her if she did not play well in sports. Doe’s
mother confronted Castro about the physical abuse over the phone, and he
apologized.
Thereafter, Doe continued to talk to her father via phone, email, and
Facebook messages. Doe realized Castro had made her believe the sex was
her fault, and she began to realize the scope of his abuse. She threatened to
throw him in jail, to tell her mother, and claimed she had evidence of what he
had done. Castro, however, had her green card and would not give it back.
One night, after she had been back in Mexico for two months, Doe went into
her mother’s room while her mother was sleeping, woke her mother, and told
her for the first time about some of the sexual abuse perpetrated by Castro.
Her mother cried and felt guilty that she had not known.
During this time, Doe continued to communicate with Castro online, at
times confronting him about the abuse she suffered. In a Facebook message
to Castro, she wrote: “Hi dad. I know we haven’t talked for months and it’s
cause I didn’t want to and you know why. I’m only sending this message to
tell you that I want to see my brother Edward. You told me you can take him
to Mexicali and I would like you to call my mom to tell her. Then you can
leave him with my aunt Erika or someone and then I can see him. But just to
be clear that I don’t want to see you again ever. I regret everything I ever
did. I don’t want to tell you more. I miss my brother and I want to see him.
I know you can at least do that for me.” Doe testified that when she said she
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regretted everything, she meant the sexual acts and the lies she told to cover
for Castro.
Castro replied to the Facebook message, “I love you so much and miss
you even if you hate me and never want to see me. I’ll never stop loving you.
I hope that one day you forgive me and give me another chance to start over.
But this time it will be like never, maybe you’ll never do it, but I will not rest
in the attempt. I love [Jane Doe] and will never forget you. Never.” Castro
continued to message Doe, begging her to communicate and have a
relationship with him. Doe got upset and started threatening to throw
Castro in jail and tell on him. She engaged in written conversation with
Castro, at times expressing anger and other times stating she missed him.
In his messages, Castro admitted Doe had every reason to hate him,
and told her he was embarrassed about everything he had done. He told Doe,
“you need to always remember that I love you. I am so sorry that you had a
dad like me.” Castro also told Doe, “you should be happy that you are being
protected from the monster that I was.” He assured her that nothing bad
would happen to her brother after her mother talked to his family “about the
things I did to you.” He said his family had become watchful and things had
changed, and Blanca would protect Edward. He also wrote that he had been
suffering from guilt, that he broke Doe down and destroyed part of her soul,
that he was sorry, and that he would never heal. He told Doe, “I really hope
that the damage I have caused you can be healed so that you won’t be
tormented by it.”
Doe created a new Facebook account specifically to ask Castro
questions that she intended to turn over to the police. Her message from this
account to Castro asked seven questions. She wanted to know why Castro
first took her across the border without waiting for her passport; why he
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started touching her when she was little, and told her she started it; why he
hit her so much; why he started touching her and having sexual interactions
with her when she was little; why he raped her and told her things were
different; how was it possible he was in love with her if he was her dad; and
why he had burned her.
Castro responded to the seven questions. He said her mother was
going through personal problems and could not take care of Doe and they
thought Doe would be better off with Castro. In response to the second
question, he wrote, “you didn’t do anything wrong. I initiated everything and
I told you all of those things to make you feel guilty and so that you would
always feel that it was your fault.” In response to her question why did
Castro hit her, he wrote that he had a violent life and history repeats itself.
He did not know how to handle it when she misbehaved. He could not hit her
mother so he placed his anger on Doe. With respect to the sexual abuse,
Castro wrote that he and his sister were abused and that he kept having sex
with her because he was already feeling guilty. Castro also wrote that he
thought it was possible to be in love with Doe, stating, “[y]ou were an
obsession for me. At times I thought you were your mom and I know that is
not normal. It is my sick mind.” Finally, Castro wrote that he would never
forgive himself, that he hit her, that he was a monster with her, what he did
to her was “indescribable,” and that it was as if he was controlled by the
devil.
Thereafter, Doe’s mother again confronted Castro. Her mother testified
that Castro responded by threatening to harm her and Doe. After that,
Castro stopped having contact with them, though he did send money for child
support. Doe’s mother then reported Castro’s conduct first to Mexican
authorities, then to the police in Calexico, California.
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After Doe’s mother reported the abuse, police conducted a search of
Castro’s home. During the search, officers found a laptop, a hard drive, and
several journals. The laptop contained a thumb cache file that had been
deleted, which included six photos of a naked female. The hard drive
contained photos of arm injuries, one showed an arm with cuts that were
actively bleeding and others showed an arm with healing cuts. The first arm
picture was taken on January 16, 2012 in Riverside. The others were taken
on January 22, 2012 in Mexicali. The journals contained entries from when
Castro was 24 years old about his pursuit of a sexual relationship with his
16-year-old cousin.
The prosecution also offered the testimony of Jody Ward, a clinical
psychologist, about Child Sexual Abuse Accommodation Syndrome (CSAAS).
She told the jury there are five components to CSAAS: secrecy, helplessness,
entrapment and accommodation, delayed unconvincing disclosure, and
retraction or recantation. Ward stated that abused children keep the abuse
secret to keep their family together; they depend and rely on the abuser and
need them in their lives. Further, children believe they are to blame for the
bad things that happen around them. Ward stated it is common for children
to initiate the sexual acts as part of accommodation. Finally, she opined that
child victims can be loyal and loving towards a person who is abusing them
as a way of compartmentalizing or accommodating.
2. Defense Case
Castro’s mother testified on his behalf. She told the jury she frequently
visited Doe, Castro, and Blanca and never saw anything suspicious or
inappropriate. She testified that she was very close with Doe when she was a
child, and Doe never complained to her about Castro. Doe did show Castro’s
mother a burn on her left buttock, and Doe told her Castro had caused it. At
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the time, Castro’s mother confronted him and said they were going to have a
talk with Castro’s sister Claudia when she got back into town a few days
later. During this conversation, Claudia told Castro she was a counselor and
would report the incident. Castro admitted to his mother that he hit and
burned Doe.
Blanca’s niece testified that she would have sleepovers with Doe
because they are close in age. She did not notice any sexual touching or
physical violence, and Castro did not make any sexual advances towards her.
She testified that she did not recall the situation Doe described where she
and Castro were in a room and then Castro insinuated that he had been
kissing her.
Castro’s sister Claudia testified that she visited Castro and Doe often,
but never saw Castro physically discipline Doe or do anything sexual towards
her. Doe and Claudia spent time together and talked, but Doe never
complained to her about Castro. In 2012, Doe showed Claudia the burn and
told her Castro had caused it. Claudia reported the matter to child protective
services, and the family confronted Castro about the abuse.
In his closing argument to the jury, Castro’s defense counsel argued
that Castro could not be found guilty of Counts 2 through 9 because Doe’s
own testimony showed that she voluntarily engaged in the sex acts at issue.
Castro’s counsel also argued Doe was lying and focused on the evidentiary
standard, asserting the prosecution had failed to meet its burden to show
that Castro was guilty of the charged offenses beyond a reasonable doubt.
3. Verdict & Sentencing
After the conclusion of trial, the jury convicted Castro on all charges:
one count of forcible lewd act on a child (Count 1; § 288, subd. (b)); four counts
of aggravated sexual assault of a child by rape (Counts 2, 4, 5, 7; § 269,
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subd. (a)(1); § 261, subd. (a)(2) & (6)); one count of aggravated sexual assault
of a child by sexual penetration (Count 3; § 269, subd. (a)(5); § 289, subd. (a));
three counts of aggravated sexual assault of a child by oral copulation
(Counts 6, 8, 9; § 269, subd. (a)(4); § 288a); and two counts of sexual
intercourse or sodomy with a child under 10 years old (Counts 11, 12; § 288.7,
subd. (a)).
Thereafter, the court sentenced Castro to a determinate term of five
years plus 177 years to life. Castro timely appealed from the judgment of
conviction.
DISCUSSION
I
Castro first asserts that the conviction must be reversed because the
trial court erred by admitting into evidence entries from his journals showing
his seduction of his 16-year-old cousin when he was 24 years old,
approximately six years before the crimes in this case began to occur. The
Attorney General responds that the trial court did not err since the journal
entries were probative of Castro’s intent. Alternatively, the People contend
that even if the entries were improperly admitted, the error was harmless.
A
Additional Background
Prior to trial, the prosecutor brought a motion under Evidence Code
section 1108 to admit portions of Castro’s journals that discussed his
relationship with his 16-year old cousin when he was 24 years old. The
defense objected on multiple grounds, including that the conduct described in
the journal did not fall within an enumerated sex crime under Evidence Code
section 1108, and that its admission violated the corpus delicti rule because
there was no evidence corroborating the events described by Castro in his
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journal. At a hearing on the motion, the prosecutor responded that the
corpus delicti rule did not apply to uncharged crimes. Defense counsel stated
there was a conflict in authority and he wished to preserve the issue.
The court ruled the evidence was inadmissible under Evidence Code
section 1108 because it was too remote and prejudicial. But it found the
journal entries were admissible under Evidence Code section 1101,
subdivision (b) on the issue of intent, and that the evidence was not precluded
under Evidence Code section 352.
At trial, the prosecutor introduced several excerpts of Castro’s journal
entries, which were read to the jury by one of the detectives who investigated
the case. In the first entry, dated January 23, 2000, Castro wrote, “I know I
have done wrong by kissing you, dear cousin, but I like you truly. I miss you,
and I would like someday to take you to my bed. Eventually you shall be
mine. And with that lust, passions and the ... loot of your wits. Today we
spoke, my mother and I, about buying a house. We had a few arguments, but
nothing serious. What’s my reputation? What are my passions? I must work
on my wits, I must. Good night.”
In an entry dated August 13, 2000, also read into evidence by the
detective, Castro wrote: “Mexicali at my aunt Gabby’s house. It’s 6:14.
Ivonne, Ivonne, oh, yes indeed. Oh, sweet, sweet night.” The entry
continued,
“I had a sweet dream this morning. I was wakened by my
mistress. I felt a strange ... And I opened my eyes ... I got scared,
and there she was, Ivonne, trembling on her knees. She said she
was cold, so I removed my blanket, and I put it around her. After
a minute, I embraced her, no kisses, just an embrace. I removed
myself from her, and I saw her face. She said she had to go. She
went somewhere on the other side where the blanket divides the
house. She came back and sat on the sofa where I was lying. I
put the blanket on her again, and I embraced her strongly like a
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true father would like the father that she sadly does not have. In
that moment, I thought that she wanted me to kiss her or was
just testing me, but I continued with my ... embraces. I felt that
she was tranquil and happy, not a worry.”
“That I would try something out of my manners, in fact,
everything was so perfect that she removed the blanket in a way
that her chest was without protection. And it was there that I
realized that indeed that special moment was a summer night’s
dream. I introduced my hand on her back caressing it, and then I
reached her bosoms. Then we laid on the bed with devils playing
with our minds. The sun was coming out and she said to me that
she had to go, but she did not do it like she used to. This time she
just said it. I immediately stop and got her up and I did the
bottoms of her pajamas. I was kissing her while doing it. We
played for a while, and then she left. I went to her room, and
while walking towards the room, I saw that my aunt’s door of her
room was open. Therefore, I went back to the living room, and I
got the pillow and we entered Ivonne’s room. The door was open,
and I entered slowly. I was amazed to see that she was laying on
her bed flat like a princess in ... and she did not have on the
bottoms, only one which holds her bosoms. She said I was nuts,
and for me to retire from her room. And so I woke from my
dream. Is it only a desire, is it love, is it blinded love. I don’t
know what to do after.”
The prosecutor introduced seven additional journal excerpts through
the detective. The entries, spanning July and August 2000, were similar in
nature, consisting of flowery language expressing Castro’s sexual interest in
and pursuits of his younger cousin.
While the detective was on the stand testifying about the content of the
journals, the court gave limiting instructions to the jury. The court read
CALCRIM Nos. 303 and 375, which state:
“During the trial, certain evidence will or has been
admitted for a limited purpose. You may consider that evidence
only for that purpose and for no other. The People will present
evidence of other behavior by the defendant that is not charged in
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this case regarding Ms. Ivonne [L]. You may consider this
evidence only if the People have proved by preponderance of the
evidence that the defendant, in fact, committed the acts. Proof by
preponderance of evidence is a different burden of proof than
beyond a reasonable doubt. A fact is proved by a preponderance
of the evidence if you conclude that it is more likely than not that
the fact is true.
“If the People have not met this burden, you must
disregard this evidence entirely.
“If you decide the defendant committed the acts, you may,
but are not required to, consider that evidence for the limited
purpose of deciding whether:
“The defendant acted with the same sexual intent towards
children in this case.
“In evaluating this evidence, consider the similarity or lack
of similarity between the uncharged acts and the charged
offenses.
“Do not consider this evidence for any other purpose except
for the limited purpose of intent.
“Do not conclude from this evidence that the defendant has
a bad character or is disposed to commit crime.
“If you conclude the defendant committed the acts, that
conclusion is only one factor to consider with all the other
evidence. It is not sufficient by itself to prove that the defendant
is guilty of these charges. The People must still prove each charge
beyond a reasonable doubt.”
Before its deliberations, the jury was instructed pursuant to CALCRIM
No. 359 as follows: “The defendant may not be convicted of any crime based
on his out-of-court statements alone. You may rely on the defendant’s out-of-
court statements to convict him only if you first conclude that other evidence
18
shows that the charged crime or a lesser included offense was committed.
[¶] The other evidence may be slight and may only be enough to support a
reasonable inference that a crime was committed. [¶] This requirement of
other evidence does not apply to proving the identity of the person who
committed the crime. If other evidence shows that the charged crime or a
lesser included offense was committed, the identity of the person who
committed it may be proved by the defendant’s statements alone. [¶] You
may not convict the defendant unless the People have proved his guilt beyond
a reasonable doubt.”
The jury was also again instructed pursuant to CALCRIM No. 375.
Finally, during her closing argument, the prosecutor argued the limiting
instruction explicitly: “Now, one of the CALCRIMs that you’re going to get in
the back is CALCRIM 375. Now, that CALCRIM is in regards to uncharged
acts to prove the defendant’s intent. This has to do specifically with the
journal entries. Now, the journal entries can only be used for this purpose. If
I can– if I have proven to you by a preponderance of the evidence that the
uncharged conduct in the journals occurred, then you can conclude from that
that if you believe that that incident happened, and that the defendant
harbored the same intent on those occasions, then you can use that intent to
show he had a similar intent in this case. It can only be used for an intent.
It can’t be used for showing he has some proclivity towards children. It’s
specifically for the defendant’s intent. You can use it as a factor of his intent,
but it can’t be the end all, be all.” In his closing argument, Castro’s counsel
did not address the journal entries.
19
B
Legal Standards
Character evidence, also described as evidence of a propensity to
engage in a type of conduct, is generally inadmissible to prove a person’s
conduct on a specified occasion. (Evid. Code, § 1101, subd. (a); People v.
Villatoro (2012) 54 Cal.4th 1152, 1159.) This general rule against admitting
propensity evidence to prove conduct, however, “does not prohibit admission
of specific acts of misconduct to establish a material fact like intent, common
design or plan, or identity ([Evid. Code,] § 1101, subd. (b)), and does not affect
the admissibility of evidence regarding the credibility of a witness (id.,
subd. (c)).” (Villatoro, at p. 1159; see People v. Denis (1990) 224 Cal.App.3d
563, 567 (Denis) [propensity “evidence can nonetheless be admitted if it is
logically, naturally, and by reasonable inference probative of motive,
knowledge, identity, intent, opportunity, preparation, plan, or absence of
mistake or accident”].)
Under Evidence Code section 1101, subdivision (b), the trial court has
discretion to admit evidence of conduct committed by a defendant other than
the conduct for which he is charged, if such evidence is relevant to prove
some fact at issue, and if the probative value of the evidence is not
substantially outweighed by the probability its admission will create a
substantial danger of undue prejudice. (People v. Hawkins (1995) 10 Cal.4th
920, 951 (Hawkins), abrogated on other grounds as stated in People v. Lasko
(2000) 23 Cal.4th 101; People v. Daniels (1991) 52 Cal.3d 815, 856 (Daniels).)
Evidence of uncharged conduct may be admitted to prove any fact material to
the prosecution’s case. (People v. Ewoldt (1994) 7 Cal.4th 380, 407 (Ewoldt).)
The admission of evidence under Evidence Code section 1101,
subdivision (b), is addressed to the sound discretion of the trial court. (People
20
v. Memro (1995) 11 Cal.4th 786, 864.) Accordingly, on appeal, a trial court’s
admission of such evidence is reviewed under the deferential abuse of
discretion standard. (People v. Gray (2005) 37 Cal.4th 168, 202; Memro, at
p. 864.) The trial court’s ruling will not be disturbed on appeal absent a clear
showing that the court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice.
(People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1614.)
When a trial court misapplies Evidence Code section 1101, or Evidence
Code section 352, the applicable standard of prejudice is that for state law
error as set forth in People v. Watson (1956) 46 Cal.2d 818. (People v. Lopez
(2011) 198 Cal.App.4th 698, 716, citing People v. Malone (1988) 47 Cal.3d 1,
22.) Under Watson, a reversible “miscarriage of justice” can be declared only
when the reviewing court, after an examination of the entire cause, is of the
opinion that it is reasonably probable a result more favorable to the
appealing party would have been reached in the absence of the error.
(Watson, at p. 836.)
21
C
Corpus Delicti Rule
Castro first asserts the court erred by admitting the journal entries
because there was no other evidence corroborating his statements in the
journal lusting over and describing sexual contact with his minor cousin.
Castro asserts there is a conflict among our state’s Courts of Appeal as to
whether the corpus delicti rule should be applied to evidence of prior conduct
admitted under Evidence Code section 1101, subdivision (b). The Attorney
General responds there is no such conflict, and the corpus delicti rule does
not apply to this evidence.
The corpus delicti rule has been explained “ ‘ “this way: every crime
‘reveals three component parts, first the occurrence of the specific kind of
injury or loss (as in homicide, a person deceased; in arson, a house burnt, in
larceny, property missing); secondly, somebody’s criminality (in contrast, e.g.
to accident) as the source of the loss, —these two together involving the
commission of a crime by somebody; and thirdly, the accused’s identity as the
doer of this crime.’ ... [T]he first two without the third constitute the corpus
delicti.” ’ ” (People v. Davis (2008) 168 Cal.App.4th 617, 633, italics omitted.)
“ ‘In every criminal trial, the prosecution must prove the corpus delicti,
or the body of the crime itself—i.e., the fact of injury, loss, or harm, and the
existence of a criminal agency as its cause. In California, it has traditionally
been held, the prosecution cannot satisfy this burden by relying exclusively
upon the extrajudicial statements, confessions, or admissions of the
defendant.’ ... The purpose of the corpus delicti rule is to satisfy the policy of
the law that ‘one will not be falsely convicted, by his or her untested words
alone, of a crime that never happened.’ ” (People v. Miranda (2008) 161
Cal.App.4th 98, 107.)
22
Castro asks this court to extend the rule to his journal entries, which
he characterizes as uncharged crimes. However, “[t]he corpus delicti rule has
never been used to exclude evidence of prior crimes when offered not to prove
that defendant committed them but rather solely for the limited purpose of
showing defendant’s state of mind at the time of the charged offense.” (Denis,
supra, 224 Cal.App.3d at p. 569.) We decline to be the first to do so.
In support of his argument that the rule should be extended to this
evidence, Castro relies on a plurality opinion in People v. Robertson (1982) 33
Cal.3d 21 (Robertson), People v. Williams (1988) 44 Cal.3d 883 (Williams),
and People v. Hamilton (1963) 60 Cal.2d 105 (Hamilton). These cases,
however, do not support Castro’s argument. “In Robertson the uncharged
conduct was inadmissible because [it was] unduly prejudicial, so the court
explicitly declined to pass judgment on the People’s contention the corpus
delicti rule is inapplicable when the evidence of the defendant’s prior criminal
acts is offered for the limited purpose of showing facts in issue, rather than
for the purpose of proving the prior crime.[4] (People v. Robertson, supra, 33
Cal.3d 21, 41–42.) In Williams the corpus delicti rule was held satisfied by
independent evidence of the uncharged crimes. (People v. Williams, supra, 44
Cal.3d 883, 910–911.)” (Denis, supra, 224 Cal.App.3d at p. 569.)
Hamilton “involved the penalty phase of capital cases, and stand[s] for
the unassailable proposition that the prosecution, in proving a defendant’s
commission of other offenses as an aggravating circumstance warranting
imposition of the capital penalty, must prove the corpus of those other
4 Without deciding the issue of whether the corpus delicti rule applied to
the evidence, the plurality opinion commented that the testimony of the
victim that the defendant told her he committed two other murders was
“objectionable on the ground that no independent evidence of the corpus
delicti of those crimes was ever introduced.” (Robertson, supra, 33 Cal.3d at
p. 41.)
23
offenses.” (Denis, supra, 224 Cal.App.3d at p. 569.) None of these cases hold
that the corpus delicti rule requires exclusion of evidence admitted under
Evidence Code section 1101, subdivision (b); nor do the cases involve evidence
analogous to that at issue here. Robertson, Williams, and Hamilton do not
lead us to conclude the corpus delicti rule required exclusion of Castro’s
journal entries from evidence.
As the Attorney General points out, allowing Castro’s journal entries
into evidence for the purpose of corroborating that his state of mind was an
intent to abuse his daughter, and not to prove he committed other crimes,
does not offend the purpose of the corpus delicti rule. Rather, the rule exists
to prevent a conviction for an offense that never occurred. No such risk is at
play when a defendant’s own statements about prior conduct are admitted
into evidence to show a fact at issue, here Castro’s intent to commit various
crimes against Doe.
D
Evidence Code section 352
Castro next argues that even if properly admitted into evidence, the
journal entries should have been excluded under Evidence Code section 352
as unduly prejudicial, since there was no question that if Castro committed
the offenses, he intended to do so. The Attorney General responds the trial
court did not abuse its wide discretion by admitting the evidence.
To be admissible under Evidence Code section 1101, subdivision (b),
evidence must also meet the test of Evidence Code section 352. Specifically,
the probative value of the evidence must not be substantially outweighed by
the probability its admission will create a substantial danger of undue
prejudice. (Evid. Code, § 352; Hawkins, supra, 10 Cal.4th at p. 951; Daniels,
supra, 52 Cal.3d at p. 856.) The “prejudice” referred to in Evidence Code
24
section 352 is “ ‘evidence that uniquely tends to evoke an emotional bias
against a party as an individual, while having only slight probative value
with regard to the issues.’ ” (People v. Cole (2004) 33 Cal.4th 1158, 1197,
citing People v. Crittenden (1994) 9 Cal.4th 83, 134.) The trial court’s
decision under this provision is reviewed for abuse of discretion. (People v.
Thomas (2012) 53 Cal.4th 771, 806.)
“Painting a person faithfully is not, of itself, unfair.” (People v. Harris
(1998) 60 Cal.App.4th 727, 737.) “ ‘ “The prejudice which [Evidence Code
section 352] is designed to avoid is not the prejudice or damage to a defense
that naturally flows from relevant, highly probative evidence.’ [Citations.]
‘Rather, the statute uses the word in its etymological sense of “prejudging” a
person or cause on the basis of extraneous factors.” ’ ” (Id., at p. 737.)
Under Evidence Code section 352, the probative value of uncharged
acts evidence offered to prove intent “must be balanced against four factors:
(1) the inflammatory nature of the uncharged conduct; (2) the possibility of
confusion of issues; (3) remoteness in time of the uncharged offenses; and
(4) the amount of time involved in introducing and refuting the evidence of
uncharged offenses.” (People v. Branch (2001) 91 Cal.App.4th 274, 282, citing
Ewoldt, supra, 7 Cal.4th at p. 404.)
We agree with the Attorney General that the journal entries were
probative of Castro’s intent to abuse his daughter and the improbability of
Castro’s defense that Doe consented to the sexual contact. The statements he
wrote about his cousin were relevant to show his predatory intent towards
his daughter, and his lack of a reasonable belief that Doe consented to his
sexual abuse of her. The writings, which contained flowery overtures of his
love and desire of his cousin, showed Castro was capable of maintaining both
25
paternal feelings for a younger close relative and simultaneously capable of
the type of conduct that led to his arrest in this case.
On the other side of the equation, the factors considered by the trial
court do not show an abuse of discretion. The conduct described in Castro’s
journal was less inflammatory than the facts at issue in the case, the object of
his affection was his 16-year-old cousin not his young daughter, and Castro
himself was younger at the time of the journal entries. The cousin was not
reliant on Castro and did not live with him. This factor, the egregiousness of
the uncharged offenses, supported the court’s decision to allow the evidence.
In addition, there was little possibility of confusion between the conduct
described in the journals and that at issue in the trial; the journal entries
were not particularly remote in time, taking place just six years before
Castro’s abuse of Doe began; and presentation of the evidence was brief and
completely unrebutted by Castro. Each of these factors supported the court’s
decision to allow the evidence, which we conclude did not constitute an abuse
of discretion.5
5 Castro relies on People v. Balcom (1994) 7 Cal.4th 414 to support his
undue prejudice argument. In Balcom, the defendant was charged with
placing a gun to a stranger’s head to force her to engage in sexual
intercourse. The defendant testified that the victim consented. The Supreme
Court determined that the introduction of evidence about a prior rape also at
gunpoint was improperly admitted to prove intent (though properly admitted
to show common design or plan) because it was cumulative and unduly
prejudicial. (Id. at pp. 418, 426–427.) In so holding, the court explained that
on the facts of the case the defendant’s intent could not be reasonably
disputed because the primary issue was whether or not the defendant forced
the victim to engage in sexual intercourse by holding her at gunpoint. If he
did, the nonconsensual nature of the act was clear, and the prior act was
cumulative as to the issue of his intent. (Id. at p. 423.)
26
E
Harmless Error
Finally, even if the admission of the journal entries into evidence was
error, we would conclude the error was harmless. The evidence of Castro’s
guilt was substantial and largely undisputed. Doe’s testimony was that
Castro forcibly raped her when she was seven years old, then groomed her
and continued to abuse her for more than five years. Doe also testified that
Castro gave her alcohol and photographed her in sexually explicit poses while
she was drunk or unconscious. Further, files from Castro’s computer
contained sexually explicit photographs of Doe, and Castro admitted having
sex with her, admitted telling her it was her fault, and admitted that he was
a monster in his Facebook messages to her.
In addition, the potential for undue prejudice was limited by the trial
court’s instructions to the jury. (People v. Kipp (1998) 18 Cal.4th 349, 372;
People v. Barnett (1998) 17 Cal.4th 1044, 1118.) The jury was instructed with
CALCRIM Nos. 303 and 375 about the limited use of the journal evidence.
The jury was also instructed on the corpus delicti rule. Finally, the
prosecutor did not emphasize the journal evidence, except to remind the jury
of its limited purpose.
On this record, we cannot say that the introduction of the journal
entries into evidence prejudicially tipped the scales in any meaningful way.
Here, unlike Balcom, there was no specific fact that if true, eliminated
the issue of consent. While holding a stranger at gunpoint unquestionably
eliminates consent, here, Doe’s testimony provided the basis for Castro’s
consent defense. Castro’s writings about his cousin, including statements
showing he thought his conduct was wrong and his successful attempt to
overcome her will, were probative of his predatory intent and not cumulative
to any other specific piece of evidence negating the defense.
27
We conclude there was no reasonable probability that Castro would have
obtained a more favorable result absent this evidence.6
II
Castro next argues that the trial court committed reversible error by
allowing the prosecutor to state during her closing argument that when Doe
was eight, nine, and ten years old, Doe could not legally consent to the sex
acts that formed the basis for the crimes. The argument was made to counter
Castro’s defense that he could not be found guilty for many of the crimes
because Doe had voluntarily engaged in the sex acts. The Attorney General
responds there was no error because the prosecutor abandoned the argument
and Castro’s trial counsel was permitted to fully present Castro’s consent
defense.
A
Additional Background
During cross-examination of Doe, Castro’s attorney asked her if she
consented to have sex with Castro. The prosecutor’s objection to the question
was sustained and the parties went to a sidebar. The trial court then
overruled the objection and said it would give the defense limited leeway to
explore the issue of consent pending resolution of the legal issue.
Doe testified that as to the first incidents at the Palm Vista apartment,
she did not remember if she consented, but said it was possible. She then
6 Castro argues that this asserted error was prejudicial as a “matter of
fact” because the journal entry evidence was not admitted in the first trial,
and the jury was unable to reach a verdict on any of the sexual abuse
charges. This is an oversimplification of the issue and Castro provides no
legal or factual support for this contention; it is not this court’s role to engage
in such conjecture. We do note one critical difference illuminated in the
record, which is that in the first trial Castro did not pursue the consent
defense, rather his counsel argued only that Doe was dishonest and made up
the allegations to get back at her father for physically abusing her.
28
stated that during the first act of intercourse, she told Castro it hurt, but did
not know if she said stop. She also testified Castro was holding her hands
down, she was in pain, and she was trying to fight him. As discussed, Doe
also testified that when they lived at the Corona house, she would agree to or
suggest sex with Castro, and she volunteered sex acts at other times as well.
The jury was instructed on the crime of rape by force, fear, or threats,
sexual penetration by force, fear, or threats, and oral copulation by force,
fear, or threats. (CALCRIM Nos. 1000, 1045, and 1015.) Each instruction
specifically required the People to prove that “[t]he other person did not
consent” to the act and explained that “[i]n order to consent, a person must
act freely and voluntarily and know the nature of the act.” The instructions
also stated the defendant was not guilty if he actually and reasonably
believed the other person consented, and that the People had the burden of
proving beyond a reasonable doubt that the defendant did not actually and
reasonably believe the other person consented.
During her closing argument, the prosecutor stated: “The third
element is that the victim did not consent. So let’s talk about that. She’s
eight years old, nine, ten. She legally can’t consent.” Castro’s counsel
objected and requested a sidebar. The court expressed frustration that
Castro’s attorney had not briefed the issue and explained the court had
conducted its own research and had not discovered any law that would allow
Castro to assert he was not guilty because Doe consented to the conduct that
formed the basis for the charges. The court then stated that it was prepared
to remove language from the jury instructions indicating that consent was a
defense.
The prosecutor then expressed concern about modifying the jury
instructions. Castro’s attorney emphasized the risk, stating “If we leave [the
29
consent language] in and he’s convicted there’s no issue, if we take it out and
he gets convicted this is an issue.” After a brief recess for the prosecutor to
consult with her office, the parties agreed to leave the defense of consent in
the instructions. The court then stated, “We’ll leave it in then; we’ll let the
jury decide,” and told Castro’s counsel, “And you could argue consent, you
could argue whatever you want.”
Thereafter, the prosecutor did not argue that a minor could not consent
as a matter of law. Rather, she argued that even if Doe did not refuse
Castro’s sexual advances or even initiated sex acts with him, her conduct did
not constitute consent because of her age and because it was the result of
Castro’s manipulation and abuse.
B
Analysis
As the Attorney General argues, after Castro’s counsel objected and the
matter was discussed outside the presence of the jury, the prosecutor
abandoned the argument that Doe could not consent as a matter of law
because she was a minor. After the prosecutor’s initial statement, she did not
repeat her assertion that Doe could not give legal consent, instead arguing
that any consent by Doe, even if she was initiating the contact, was a result
of the force, fear, duress, and manipulation asserted over her by her father.
In sum, the prosecutor argued that Doe did not freely and knowingly
understand what Castro was doing to her.
Castro’s counsel then argued in his closing statement that Doe had
consented to many of the crimes at issue, and thus the prosecution had failed
to carry it’s burden to show Castro was guilty of those crimes. The jury was
given instructions that required it to consider whether Doe consented to the
acts. As noted, the consent element was not removed from the instructions as
30
the trial court initially suggested. As a result, the jury considered the
consent defense advanced by Castro at trial and flatly rejected that
characterization of the evidence. Given the prosecutor’s abandonment of her
brief, initial assertion that legal consent was not possible and Castro’s failure
to request any admonishment, Castro’s argument fails.7 (See People v. Caro
(2019) 7 Cal.5th 463, 512 [“the alleged misconduct was, in any event, so
minimal as to have no reasonable probability of affecting the outcome.”] and
People v. Osband (1996) 13 Cal.4th 622, 717 [“When argument runs counter
to instructions given a jury, we will ordinarily conclude that the jury followed
the latter and disregarded the former, for ‘[w]e presume that jurors treat the
court’s instructions as a statement of the law by a judge, and the prosecutor’s
comments as words spoken by an advocate in an attempt to persuade.’ ”].)
Castro asserts that the prosecution did continue to argue that Doe
could not legally consent. This is a mischaracterization of the prosecutor’s
argument. In her rebuttal closing statement, she did assert that Doe did not
“agree to having sex with her father in the legal way, the way that a person
needs to understand and have that capacity to weigh the costs and benefits,
the consequences of taking on this kind of adult situation.” However, we do
not view this statement as an assertion that Doe could not consent as a
matter of law. Rather, it was an appropriate argument that even if a child
does not object to sexual contact, she does not have the emotional ability to
7 In his reply brief, Castro asserts that requesting an admonition after
his objection was sustained was futile because “the trial court had ruled that
the prosecutor’s argument was not a misstatement of the law.” However, the
trial court accepted the parties agreement that consent was not lacking as a
matter of law and the parties made their respective arguments with that
understanding. In the end, the trial court agreed with the defense position,
negating Castro’s contention that a request for an admonition would have
been futile.
31
make such a decision, i.e. consent to the conduct. The prosecutor was
responding to the assertion of Castro’s counsel that a child of that age could
knowingly agree to such contact—the prosecutor’s statements did not
constitute error.
III
Finally, Castro contends his convictions must be reversed because the
trial court failed to instruct on the lesser included offenses for Counts 2
through 9. The Attorney General responds that the court did not err because
this is the rare case in which the trial court’s duty to instruct was obviated by
the defendant’s tactical decision to risk a conviction on the greater charges to
avoid facing the lessor ones as an alternative.
A
Additional Background
Each of the crimes charged in Counts 2 through 9 have non-forcible
lesser included offenses that do not require the acts to be against the victim’s
will. In Castro’s first trial, where he did not pursue the consent defense, the
court instructed the jury on the lesser included offenses. At the second trial,
however, Castro expressly requested the court not to instruct the jury on the
lesser included offenses. During a conference on the instructions, Castro’s
counsel stated, “The only lesser we’re requesting right now is for Count 1, the
[Penal Code section] 288, subdivision (a).” The court said, “And that is a
lesser included. The Court will give the lesser included offense.” Castro’s
counsel then added, “And for the record, I’ve spoken with Mr. Castro about
the lesser related offenses, and we both agree for tactical reasons not to
include them.” (Italics added.)
32
B
Analysis
As a general rule, courts must instruct on lesser included offenses that
are supported by the evidence, even over a defendant’s objection. “ “ “It is
settled that in criminal cases, even in the absence of a request, the trial court
must instruct on the general principles of law relevant to the issues raised by
the evidence. [Citations.] ...’ [Citation.] That obligation has been held to
include giving instructions 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. [Citations.] The obligation to instruct on lesser
included offenses exists even when as a matter of trial tactics a defendant not
only fails to request the instruction but expressly objects to its being given.” ’
[Citation.]” (People v. Medellin (2020) 45 Cal.App.5th 519, 525 (Medellin),
citing People v. Souza (2012) 54 Cal.4th 90, 114.)
Despite this policy, “ ‘the claim may be waived under the doctrine of
invited error if trial counsel both ‘ “intentionally caused the trial court to
err” ’ and clearly did so for tactical reasons. [Citation.] Invited error will be
found, however, only if counsel expresses a deliberate tactical purpose in
resisting or acceding to the complained-of instruction.’ ” (Medellin, supra, 45
Cal.App.5th at p. 525.) The invited error doctrine applies here.
In Medellin, the court applied the doctrine where the defense attorney
told the court the defense was not asking for lesser included offenses and
responded, “Yes, your honor” to the trial court’s question as to whether there
were legitimate strategic purposes for making the request. (Medellin, supra,
45 Cal.App.5th at p. 524.) Here, Castro’s counsel did not have to be asked.
Rather, he volunteered “for the record” that he had spoken to Castro about
33
the decision and offered that “we both agree for tactical reasons not to include
them.”
Castro’s reasons were logical in light of his reliance on the defense that
Doe consented—the difference between the crimes is the element of consent.
Thus, the lesser-included offense instructions would have exposed Castro to
substantial criminal liability even if the jury accepted his defense. Given the
weight he placed on Doe’s claims that the sexual activity was voluntary,
Castro reasonably decided the evidence of consent was strong enough to
create reasonable doubt and the possibility of a complete acquittal.
“Allowing the defense to cause the error, lose at trial, and automatically
obtain reversal on appeal would reward the defense’s failed gambit and
eliminate the rule’s purpose.” (Medellin, supra, 45 Cal.App.5th at p. 526.)
This case presents the textbook example of invited error in the context of
lesser included offense instructions. Accordingly, the trial court’s failure to
give the instructions did not constitute error.
DISPOSITION
The judgment of conviction is affirmed.
McCONNELL, P. J.
WE CONCUR:
DATO, J.
DO, J.
34