Opinion
F078108
08-04-2020
THE PEOPLE, Plaintiff and Respondent, v. RICHARD YANEZ CASTILLO, JR., Defendant and Appellant.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CR-00540B)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Merced County. Carol K. Ash and Ronald W. Hansen, Judges. Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Franson, J. and Peña, J.
Judge Ash ruled on defendant's February 13, 2018, motion to strike prior strike conviction; Judge Hansen presided at trial and sentenced defendant.
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INTRODUCTION
A jury convicted defendant Richard Yanez Castillo, Jr., of one count of assault with a deadly weapon with a gang enhancement and one count of gang participation after multiple inmates attacked a fellow inmate in their prison unit. The prosecution's theory of the case was that defendant, as a mid-level leader of the Norteños, orchestrated the attack despite not physically engaging. The court denied defendant's motion to strike his prior strikes and sentenced defendant to 25 years to life in prison for the assault conviction. This term was enhanced by an additional five years for one prior serious felony enhancement and another five years for a gang enhancement. The court also sentenced defendant to 25 years to life on the substantive gang conviction plus an additional five years for the prior serious felony enhancement, which it ordered to run concurrently with defendant's sentence for assault.
Defendant seeks a new sentencing hearing to permit the trial court to exercise its discretion and decide whether to strike his prior serious felony enhancements in light of Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393). He also argues the court erred by denying his motion to strike his prior strikes pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Finally, he contends the court should have stayed his sentence on the gang participation conviction rather than ordering it to run concurrently with his sentence on the assault charge.
We remand this matter for resentencing to permit the trial court to exercise its discretion regarding whether to dismiss defendant's prior serious felony enhancements in light of Senate Bill 1393 and order the court to prepare an amended abstract of judgment. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL
Varnell McFadden, the victim, was housed with Norteño gang members, including defendant, in the Merced County jail. In January 2017, some of McFadden's cellmates attacked him and, as a result, he suffered a head wound and multiple stab wounds in his back. Defendant was charged with assault and gang participation as a result of the attack.
A jail camera documented McFadden's attack. The People introduced the recorded footage at trial. It depicts multiple inmates attacking McFadden in one room of a two-room cell; an inmate can be seen watching the attack occur from the other room. At one point, that inmate appears to push another inmate towards the fight.
J.L. was housed in the same cell as defendant and McFadden in the Norteño unit of the jail. According to J.L., the Norteños were investigating McFadden because he did not show the cellmates his paperwork when he arrived at the jail unit. When the cellmates eventually received McFadden's paperwork, the documents reflected McFadden had "snitched" after the commission of a crime. The other cellmates were angry because McFadden had been there for four months without them knowing. They began to plan an assault on McFadden so he would be removed from the unit.
On the day of the assault, J.L. left the jail to go to court. Before he left, J.L. made "pruno," a form of alcohol made by inmates. When he returned from court, the cell was a mess, his pruno was gone, and his fellow cellmates, including Sergio Uriostegui and Michael Bonilla, were drunk. They told J.L. that McFadden had been removed. Defendant told J.L. that Uriostegui and Bonilla initially attacked McFadden; one began to stab him while the other "socked him." Then the other inmates joined in, but one hesitated. Defendant made fun of that inmate "because [defendant] had to push him in."
J.L. testified that he is a former Norteño gang member. He explained the Norteños are organized by rank. "Cs" or "carnales" are at the top of the gang hierarchy and they direct the other gang members. Under the carnales are the "Norteno soledados" or "Nsoles"; "they [educate and] help the Cs guide and govern the Nortenos." J.L. identified defendant as a "Norteno soledado" who acted as a teacher in J.L.'s cell. Defendant had held that position for years and he taught J.L. how to protect himself and obtain weaponry for assaults. J.L. explained that if defendant participated in an assault he would be "abandoning his position [as a teacher] and ... leaving everyone else without education so they'll be blind." However, inmates with status, like defendant, would coordinate assaults, including "whether or not disciplines were going to happen," "the best way to do [them] and ... what manpower to use."
Detective Tim Goncalves testified as a gang expert at trial. He discussed his knowledge of the Norteño street gang and he opined defendant and his cellmates were active Norteño gang members. Goncalves narrated what he believed to be occurring in the video camera footage based on his training and experience. He explained an inmate was sitting across from McFadden in one room while defendant spoke with Uriostegui and Bonilla in the other room before Uriostegui and Bonilla attacked McFadden. Goncalves opined the fact defendant was "dealing with" Uriostegui and Bonilla, the initial attackers, was indicative of defendant's influence. Goncalves opined defendant stayed at a distance during the attack so "he could keep eyes on the assault and then direct individuals who were intermittently participating." After the prosecutor presented Goncalves with a hypothetical mirroring the facts of this case, Goncalves testified it was his opinion an assault of that manner was "committed for the benefit of, at the direction of, or in association with a Norteno criminal street gang with a specific intent to promote criminal street gang activity."
Bonilla testified for the defense and admitted he pled no contest to an assault charge arising from McFadden's attack. He admitted drinking pruno on the day of the assault. He denied that anyone directed him to assault McFadden.
Another of defendant's cellmates, Ulises Monge, also testified for the defense and admitted he pled guilty to assault and a gang enhancement after the attack. He testified he tried to stop the attack and then McFadden called Monge a "bitch," so Monge punched and kicked him. According to Monge, defendant did not tell him to hit or kick anyone. Instead, defendant told Monge to stop the fight before everyone got in trouble.
The jury convicted defendant of assault with a deadly weapon with a gang enhancement and a substantive gang offense. Defendant admitted he had two prior serious felony convictions within the meaning of Penal Code section 667, subdivision (a)(1) that also qualified as strike offenses. The court denied defendant's Romero motion to strike his prior strikes and sentenced defendant to 25 years to life in prison for the assault conviction. This term was enhanced by an additional five years for one prior serious felony enhancement and another five years for the gang enhancement, for a total aggregate prison term of 35 years to life. The court also sentenced defendant to 25 years to life on the substantive gang conviction, plus an additional five years for the prior serious felony enhancement, which it ordered to run concurrently with defendant's sentence for assault.
DISCUSSION
On appeal, defendant challenges his sentence on multiple grounds.
I. Remand for Consideration of Senate Bill 1393
Senate Bill 1393, signed into law on September 30, 2018, amends Penal Code sections 667 and 1385 to provide the trial court with discretion to dismiss, in furtherance of justice, five-year prior serious felony enhancements imposed pursuant to section 667, subdivision (a)(1). The new law took effect on January 1, 2019. The law is applicable to those parties, like defendant, whose appeals were not final on the law's effective date.
Defendant first contends his case should be remanded to permit the court to exercise its newfound discretion and to consider whether to strike his prior serious felony enhancements imposed pursuant to Penal Code section 667, subdivision (a). The People agree remand is necessary on this basis and further contend the matter should be remanded because the court issued an unauthorized sentence. They assert defendant admitted he had two prior serious felony convictions under Penal Code section 667, subdivision (a), but the court only imposed one of the enhancements as to each count. However, at the time of sentencing, the court did not have discretion to strike these enhancements.
The California Supreme Court has held, when a court is unaware of the scope of its discretionary powers, "the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' [Citations.]" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
Here, as the parties note, defendant was sentenced in this case on September 10, 2018, before Senate Bill 1393 was passed and took effect. And the record does not "clearly indicate" the court would not have struck these enhancements had it been aware of its discretion to do so. Accordingly, we agree with defendant and accept the People's concession that remand is required on this basis. In so holding, we note as the People argued, though defendant admitted he had two prior serious felony enhancements pursuant to section 667, subdivision (a), the trial court only imposed one 5-year enhancement to defendant's sentence on count 1 and one 5-year enhancement to his sentence on count 2. However, the court did not have discretion at the time to strike the other prior serious felony enhancement. Thus, the sentence was unauthorized. Accordingly, we remand this matter for the trial court to set a resentencing hearing to exercise its discretion whether to dismiss the section 667, subdivision (a) enhancements and to resentence defendant accordingly. II. The Court Did Not Abuse Its Discretion in Denying Defendant's Romero Motion
The court did not state why it did not impose both five-year enhancements, instead it just stated, "[T]he Court's going to impose a five-year term, just one five-year term, even though he has two prior[s]."
Defendant next argues the court abused its discretion in refusing to strike his prior strikes.
A. Relevant Procedural Background
Defendant admitted he had two prior serious felony convictions within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (b)-(i) & 1170.12) and section 667, subdivision (a). One of these two prior convictions was for carrying a loaded firearm in public (id., former § 12031, subd. (a)) with a gang enhancement (id., § 186.22, subd. (b)) in 2005 (case No. MF41699), and the other was for assault with a deadly weapon (id., § 245, subd. (a)(1)) with a gang enhancement (id., § 186.22, subd. (b)) in 2008 (case No. MF48170A).
On February 13, 2018, defendant filed a motion to strike these prior strike convictions in furtherance of justice pursuant to Romero, supra, 13 Cal.4th 497. In case No. MF41699, defendant was stopped in a car with a female and a "backpack which was under the rear portion of the driver's seat contained a semi-automatic handgun with a bullet in the chamber," "a live 410-shotgun shell, and stolen credit cards and driver's license." Defendant pled guilty to carrying a loaded firearm on his person (Pen. Code, former § 12031, subd. (a)(1)) and admitted the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members, which made the plea a strike. (§ 186.22, subd. (b)(1)(A).)
Defendant filed an earlier motion to strike a prior under Penal Code section 1385 that the court granted, striking the conviction in defendant's prior case No. CRM011704 pursuant to People v. Rodriguez (2012) 55 Cal.4th 1125. --------
In case No. MF48170A defendant pled no contest to assault with a deadly weapon (Pen. Code, § 245, subd. (a)) and admitted a gang enhancement (id., § 186.22, subd. (b)(1)(A)) after an inmate was stabbed at the Merced County jail and identified defendant as one of his assailants. The plea also resulted in a strike.
In his Romero motion, defendant argued his first strike conviction in case No. MF41699 was "more than 12 years old," involved possession of a gun by a gang member, and "should not be used to make the defendant [eligible] for a 25 to life sentence." He further contended "the facts of his two pending cases [do not] factually support such a sentence." At the hearing on the motion, defense counsel also argued the video recording of the instant assault reflected that defendant "never touched the victim." Rather, the theory was "that he was in some way encouraging other people, pushing them into the fight." However, from defense counsel's perspective, "it could be interpreted as [defendant] was pulling them away or pushing them." She argued, given "the minimal actions" by defendant, this was "not the kind of case ... that should get a 25-to-life sentence."
The prosecutor responded the video depicts defendant "talking with both of the individuals who personally assaulted the [victim] right before they went and did it, and it is an aiding and abetting theory." She argued defendant "clearly has a very important role" in the criminal street gang and he "orchestrat[ed] the attack." The prosecutor noted this was "not the only case pending before the Court," and she urged the court to look at defendant's other charges in his other case, including charges for "assaulting peace officers." She explained that case "was an evading ... in which [defendant] ended up backing up towards [a]n officer who had to run away because he was in fear for his life and then ended up ramming a police vehicle that had two police officers in it that spun around on an embankment and went up on a fence." The prosecutor argued, these facts in addition to defendant's criminal history and his repeated imprisonment for offenses involving weapons and gang activity established defendant is "a clear example of why we have the Three Strikes Law. He's a very clear and present danger to society."
In denying defendant's Romero motion, the court noted one of the two strike offense cases involved another assault in prison in which defendant stabbed another inmate. The court further acknowledged defendant had "been in and out of prison since 2005" and he had "a history of violent crimes." It considered the current "assault in a jail" to be "a very serious offense even if [defendant] was just the instigator." Accordingly, the court did not "see where [it could] make a finding that [defendant] falls outside the scheme of the Three Strikes Law."
At the sentencing hearing, defense counsel again implored the court to consider striking one of defendant's strikes given his lack of physical involvement in the instant offense. The court concluded defendant did not fall outside of the intent of the three strikes law, which was intended to punish repeat violent offenders. In so holding, the court noted it could not "overlook [defendant's] criminal history. It dates back to November 1998. He—it involves gangs, violence, weapons, firearms, drugs, assaults, felony evading. [¶] ... [F]or the last 17 years, he's spent ten years in custody. And yet he continues to re-offend. He not only re-offends when he's out. He re-offends while he's in. [¶] And you look at the video in this case, and [defendant] is clearly urging another inmate, both verbally and physically, to get involved in the assault. In fact, he pushed one of the inmates in towards Mr. McFadden." Defendant "clearly has embraced the gang lifestyle. He's not giving it up. He's shown that he is a violent and dangerous person and has chosen that lifestyle even though it's resulted in years and years of incarceration." Accordingly, the court reiterated its decision to deny defendant's request to strike a prior strike.
B. Standard of Review and Applicable Law
"'[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts' discretion in sentencing repeat offenders.' [Citation.] To achieve this end, 'the Three Strikes law ... establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme."' [Citation.]" (People v. Carmony (2004) 33 Cal.4th 367, 377.) "[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Id. at p. 378.)
A trial court has discretion under Penal Code section 1385 to strike prior felonies alleged for sentence enhancement purposes. (Romero, supra, 13 Cal.4th at pp. 529-530.) In deciding whether to strike a prior felony allegation, the court must "consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [three strikes] scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
We review a trial court's decision to deny a motion to strike prior strike allegations for an abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 374.)
"In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, '"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' [Citations.] Second, a '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony, supra, at pp. 376-377.)
"Because the circumstances must be 'extraordinary ... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (People v. Carmony, supra, 33 Cal.4th at p. 378.)
C. Analysis
Defendant argues the court abused its discretion by refusing to strike at least one of his two prior strike convictions. He asserts he "never physically touched the victim" during the present assault, "but he only aided and abetted this offense with his words and actions," which "did not justify imposition of a 25 years to life sentence." He also argues his two prior serious felony convictions "were not so serious as to justify a 25 years to life sentence." He asserts the first prior conviction for carrying a loaded firearm in public "was only a serious felony because it was committed for the benefit of, or in association with, a criminal street gang," and the conviction was 12 years old. He notes his second prior strike conviction, committed in 2008, was for an assault with a deadly weapon on a jail inmate. The People respond the court did not abuse its discretion in refusing to strike one of defendant's prior strikes given his "entire criminal history and involvement in the underlying assault with a deadly weapon on a fellow inmate." They assert "[t]here is nothing in the record to suggest that [defendant] falls outside the spirit of the 'Three Strikes' Law." We agree with the People; the trial court did not abuse its discretion.
Here, the court was entitled to consider, as it did, defendant's lengthy criminal history and his involvement in the instant offense. (See People v. Williams, supra, 17 Cal.4th at p. 161.) As the court noted, defendant's criminal history dated back to November 1998 and involved an array of offenses including "gangs, violence, weapons, firearms, drugs, assaults, [and] felony evading." Indeed, in addition to an extensive juvenile record, defendant has been convicted of numerous crimes as an adult including but not limited to felony taking of a vehicle in 2001, felony drug possession, misdemeanor theft, and obstructing or resisting a police officer in 2003, carrying a loaded firearm with a gang enhancement in 2005, felony assault with a deadly weapon in 2008, and felony possession of a firearm in 2010. Though he spent the majority of his adult years incarcerated, including from 2013 to the present, defendant continued to reoffend, even while in custody, as evidenced by the instant convictions. Additionally, the evidence presented at trial, including the video documenting the offense, supported a conclusion that, though defendant may not have physically assaulted McFadden, he pushed another inmate into the fight and encouraged its perpetration. And the current assault was not trivial; it occurred in jail and resulted in significant injury to the victim.
In light of these factors, we cannot say the trial court's conclusion that defendant did not lie outside of the intent of the three strikes law was so irrational or arbitrary that no reasonable person could agree with it. (See People v. Carmony, supra, 33 Cal.4th at pp. 376, 378-379 [court properly balanced relevant factors including defendant's violent criminal record, prior convictions, spotty work history, and poor prospects for future in concluding defendant "fell within the spirit of the three strikes law"]; People v. Stone (1999) 75 Cal.App.4th 707, 717 [no abuse of discretion in refusing to vacate one of defendant's strikes because defendant "is an exemplar of the 'revolving door' career criminal to whom the Three Strikes law is addressed"]; see also People v. Gaston (1999) 74 Cal.App.4th 310, 320 [reversing order vacating 17-year-old strike given the defendant's "unrelenting record of recidivism"; "[defendant] is the kind of revolving-door career criminal for whom the Three Strikes law was devised"]; People v. Thornton (1999) 73 Cal.App.4th 42, 49 [reversing order dismissing two of three strikes, where defendant had long history of felonies, misdemeanors, drug use, and parole violations, which showed his background, character, and prospects were "dismal" and could not "be said to be outside the spirit of the three strikes law"]; People v. Barrera (1999) 70 Cal.App.4th 541, 554-555 [the court's refusal to dismiss one of defendant's two 14-year-old strikes was justified by defendant's "long-standing drug addiction," his criminal history, including 11 different misdemeanors within the seven years leading up to the instant offense, three prior felonies, and numerous probation and parole violations]; People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [reversing order dismissing prior robbery conviction that was nearly 20 years old where "the defendant has led a continuous life of crime after the prior," including drug use, two counts of burglary, robbery, and current conviction of grand theft].) Accordingly, we cannot conclude it abused its discretion in refusing to strike one of defendant's prior strikes.
We reject defendant's second contention.
III. Sentence for Substantive Gang Conviction Must Be Stayed Under Section 654
Defendant next argues, and the People concede, his sentence for the substantive gang offense (count 2) should have been stayed under Penal Code section 654 rather than ordered to run concurrently. We agree with the parties.
"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (Pen. Code, § 654, subd. (a).) In People v. Mesa (2012) 54 Cal.4th 191, the California Supreme Court held section 654 precludes punishing a defendant for active participation in a criminal street gang (§ 186.22, subd. (a)) where the only evidence of such prohibited participation was the commission of a charged offense for which the defendant was also convicted and sentenced. (People v. Mesa, supra, at pp. 197-198.)
Here, the jury convicted defendant of a substantive gang offense. (Pen. Code, § 186.22, subd. (a).) The trial court imposed a 25-year-to-life sentence enhanced by an additional five years for one prior serious felony conviction pursuant to section 667, subdivision (a). It ordered this sentence to run concurrently with defendant's sentence on count 1. However, defendant's conviction for active participation in a criminal street gang was based on his involvement in the assault of which he was convicted and sentenced. Accordingly, the trial court was required to stay defendant's sentence for the substantive gang offense, rather than run it concurrently with his other sentences. (See § 654, subd. (a).) Thus, we accept the People's concession and conclude the abstract of judgment must be amended to reflect the sentence imposed on count 2 is stayed pursuant to section 654.
DISPOSITION
We remand to the trial court for a new sentencing hearing to permit the trial court to exercise its discretion regarding whether to strike the prior serious felony enhancements in light of Senate Bill 1393. The trial court is also ordered to prepare an amended abstract of judgment reflecting that defendant's sentence on count 2 for gang participation is stayed and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.