P. v. Castillo

Filed 3/23/21 P. v. Castillo CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
HECTOR CASTILLO,
Defendant and Appellant.
B301982
(Los Angeles County
Super. Ct. No. BA438393)
APPEAL from a judgment of the Superior Court of
Los Angeles County, Ray G. Jurado, Judge. Affirmed as
modified.
John Steinberg, 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, Michael R. Johnsen and Yun K. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________

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Defendant Hector Castillo was convicted of one count of
first degree murder, one count of shooting at an occupied motor
vehicle, and two counts of unlawful possession of a firearm. The
jury found true gang enhancement allegations relating to all four
offenses, and it also found true firearm enhancement allegations
pertaining to the murder and shooting at an occupied motor
vehicle convictions. The trial court sentenced Castillo to an
aggregate prison term of 50 years to life, with a minimum parole
eligibility date of 15 calendar years. The lower court also
imposed, but stayed, certain prison terms, including two 10-year
gang enhancements.
On appeal, Castillo alleges claims of prosecutorial
misconduct, the erroneous exclusion of evidence supporting his
theories of imperfect self-defense and third-party culpability,
instructional error, the erroneous denial of his motion to
bifurcate the gang allegations from the trial of the underlying
substantive offenses, insufficiency of the evidence supporting the
gang allegations, and cumulative error. Castillo further contends
that the trial court erred in imposing the 15-year minimum
parole eligibility date and the two 10-year gang enhancements.
Castillo’s prosecutorial misconduct claims fail because he
has not demonstrated that he was prejudiced by the People’s
actions. We also reject his challenge to the trial court’s
evidentiary ruling and his claim of instructional error because his
characterizations regarding the excluded evidence giving rise to
those claims are unsupported by the record. His challenges to
the denial of his bifurcation motion and to the sufficiency of the
evidence fail because the People offered evidence showing that
Castillo shot a rival gang member in territory claimed by
Castillo’s gang in order to defend that territory and avenge the

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murder of Castillo’s brother, who was a member of his gang.
Castillo’s cumulative error claim does not warrant reversal
because, aside from his allegations of prosecutorial misconduct,
we explicitly pass upon and reject the merits of his claims of trial
error. Lastly, although we accept the parties’ concession that the
two 10-year gang enhancements should be stricken, we disagree
with Castillo’s contention that the trial court’s imposition of the
15-year minimum parole eligibility date was unauthorized.
We thus affirm the judgment as modified.
PROCEDURAL BACKGROUND
On September 28, 2016, the People filed an information
charging Castillo with one count of murder, in violation of Penal
Code1 section 187 (count 1); one count of shooting at an occupied
motor vehicle, in violation of section 246 (count 2); one count of
unlawful possession of a firearm, in violation of section 29805
(count 3); and another count of unlawful possession of a firearm,
in violation of section 29815, subdivision (a) (count 4). With
regard to counts 1 and 2, the information alleged that Castillo
personally and intentionally discharged a firearm causing great
bodily injury for the purposes of section 12022.53, subdivision (d).
Additionally, the information averred that Castillo committed all
four offenses 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.
Castillo later pleaded not guilty to all counts.
1 Undesignated statutory citations are to the Penal Code.

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On February 21, 2019, the jury found Castillo guilty of first
degree murder and of all other charged offenses, and found the
gang and firearm enhancement allegations to be true.
On October 22, 2019, the trial court sentenced Castillo to
an aggregate prison term of 50 years to life. The sentence is
comprised of a term of 25 years to life on count 1, with a
consecutive sentence of 25 years to life imposed on that count
pursuant to section 12022.53, subdivision (d); the court imposed,
but stayed pursuant to section 654, a 10-year concurrent
enhancement on count 1 pursuant to section 186.22,
subdivision (b)(1)(C). Pursuant to section 186.22,
subdivision (b)(5), the trial court ruled that Castillo could not be
paroled until he had served a minimum of 15 years of his prison
sentence. The court also imposed prison terms for counts 2, 3,
and 4, but stayed each of those sentences pursuant to section 654.
Of particular note for the instant appeal is the sentence imposed
for count 2, which was a 7-year prison term, along with: a
10-year enhancement pursuant to section 186.22,
subdivision (b)(1)(C); an indeterminate life sentence pursuant to
section 186.22, subdivision (b)(4); and a 25-year enhancement
pursuant to section 12022.53, subdivision (d).
Castillo timely appealed the judgment.
FACTUAL BACKGROUND
This part summarizes relevant portions of (a) testimony
offered by the People’s witnesses, and (b) the defense’s theory of
the case.

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1. The People’s Evidence
A. The Shooting and Its Aftermath
On March 21, 2015, Rosario Marban lived at a home on
Eastlake Avenue in Los Angeles (Marban residence) with his
family, including his son, Alberto Marban.2 A family gathering
was taking place at the house that evening. When Oscar Rivera
arrived at the Marban residence, he walked through an archway
and saw two persons sitting on chairs outside the house; Rivera
later made his way to the backyard, as did Rosario. While they
were in the backyard that evening, Rivera and Rosario heard
gunshots.
Christian Lepe was driving on Minnesota Street near
Eastlake Avenue when he heard gunshots and saw a car that had
flipped over. Lepe parked his vehicle and saw a man inside the
other car who was not moving.
At 6:54 p.m., two police officers responded to a shooting
reported at an address located near the Marban residence. After
arriving at that location, one of the officers saw a white sport
utility vehicle (SUV) that had flipped over onto its passenger
side. A Lincoln Heights gang member named David Cardiel was
the sole occupant of the SUV.3 Cardiel had sustained multiple
2 For the sake of clarity, and meaning no disrespect, we
will use first names when referring to members of the Marban
family. Additionally, we note there is no dispute that Castillo
was Alberto’s “childhood friend.”
3 The parties do not dispute the People offered evidence
that Cardiel had tattoos consistent with membership in the
Lincoln Heights gang.

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gunshot wounds to his face and body, and was pronounced dead
at the scene. Police found no firearms on Cardiel.
Officers thereafter canvassed the area north of the scene of
the shooting. The officers subsequently asked the occupants of
the Marban residence to exit the home, and then conducted a
sweep of the dwelling for suspects.
One of the officers went upstairs to Alberto’s bedroom,
where the officer found Castillo lying face down on a bed.
Castillo, who was breathing heavily and sweating, was taken into
custody.4
A detective entered a bathroom in the home, examined a
trash can, and found therein a pair of jeans, a Los Angeles
Dodgers baseball cap, and a damp shirt that had been turned
inside out. Inside the pocket of the jeans were three
identification cards that bore Castillo’s name, including a
California identification card. The detective used the same
gloves to remove each item of clothing from the trash can.
As Alberto saw the police remove Castillo from the Marban
residence, Alberto noticed that Castillo was wearing Alberto’s
shirt. At trial, Alberto claimed that although he had seen
Castillo on the morning of March 21, 2015, Castillo did not come
to family gathering. Alberto further claimed that he did not give
Castillo permission to wear Alberto’s shirt or enter his bedroom.
Alberto also insisted that the clothing found in the bathroom
trash can did not belong to him, and that he did not place those
articles of clothing in the trash can.
4 Police found a 7.62-caliber rifle bullet on the bedroom
floor. Alberto’s testimony indicates that he found the bullet at a
park prior to the shooting and placed it on the floor of the
bedroom.

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An officer conducted a protective sweep of the backyard of
the Marban residence, and found a rifle on the hill by the fence
line.5 The magazine contained four live bullets, and the chamber
contained one bullet. A glove was found under the rifle. An
opening along the fence led to a neighbor’s property. Police also
“recovered three cartridge casings, two of which were on the
landing between two staircases in front of the residence, a
Monster energy drink can in the front yard, and a red spray paint
can in a planter.”6
One of the officers investigating the shooting noticed that
the words “Eastlake 1” and “Swifty” appeared in red paint on a
wall across the street from the Marban residence. The officer
testified that he could smell paint in the air in the vicinity of the
wall, and that this smell indicated that someone had recently
spray-painted the graffiti.
5 For the purposes of this appeal, Castillo concedes that
this was the weapon that was used to shoot Cardiel. (See Artal v.
Allen (2003) 111 Cal.App.4th 273, 275, fn. 2 (Artal) [“ ‘[B]riefs
and argument . . . are reliable indications of a party’s position on
the facts as well as the law, and a reviewing court may make use
of statements therein as admissions against the party.
[Citations.]’ ”].)
6 The Attorney General asserts, and Castillo does not
dispute, that evidence to this effect was introduced at trial. (See
Reygoza v. Superior Court (1991) 230 Cal.App.3d 514, 519 & fn. 4
[criminal case in which the Court of Appeal assumed that an
assertion made by respondent was correct because the “defendant
did not dispute respondent’s claim in his reply”]; Rudick v. State
Bd. of Optometry (2019) 41 Cal.App.5th 77, 89–90 [concluding
that the appellants made an implicit concession by “failing to
respond in their reply brief to the [respondent’s] argument on
th[at] point”].)

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B. Forensic Evidence
The shell casings found at the scene of the shooting were
fired from the rifle found in the backyard of the Marban
residence. The weapon was a 7.62 by 39-millimeter caliber rifle.
Gunshot residue (GSR) is a group of microscopic particles
that are formed when a firearm is discharged. GSR is comprised
of three elements: lead, antimony, and barium. A “characteristic
particle” contains all three aforesaid elements. If a characteristic
particle is found on a person, then there are four possible
explanations for that phenomenon: (1) that person discharged a
firearm, (2) the individual was in the general vicinity of a firearm
being discharged, (3) the person touched something that had GSR
on it, or (4) something with GSR thereon touched that person.
For instance, “when a police officer handcuffs someone, [that
officer] could be a source of introducing . . . a characteristic
particle onto someone’s hands . . . .” Additionally, an “indicative
particle” typically contains only two of the three elements found
in GSR, and could “possibly come from . . . environmental
sources” other than the firing of a gun.
One characteristic particle was found on Cardiel’s left
hand. A characteristic particle was also found on Castillo.
Although no GSR was detected on Alberto, six indicative particles
were found on him.
Detectives obtained DNA samples from Castillo and
Alberto. DNA swabs were taken from the rifle, hat, shirt, and
jeans seized on March 21, 2015. The rifle’s trigger, trigger guard,
wood stock, wood grips, and bolt were swabbed for DNA.
Alberto was the major contributor of the DNA found on the
hat. Castillo was the major contributor of the DNA found on the
shirt and jeans, and he was the single contributor of the partial

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DNA profile found on the rifle. The People’s DNA examiner
testified that he could not ascertain which part of the rifle the
partial DNA profile came from, and that the DNA could have
come from any part of the weapon that had been swabbed.
Although the examiner could not say with certainty that direct
human contact with the rifle is the only means by which the DNA
could have been left thereon, he testified that “the easiest and
most common way that DNA transfers . . . is by direct, primary
handling of an item.”
The random-match probability of the profile from the rifle
was one in a hundred billion unrelated people.
C. Gang Evidence
Eastlake is a gang that had 75 documented members in
2015, 20 to 25 of whom lived in the area where the shooting
occurred. The Eastlake gang’s primary activities include
possession and sales of narcotics, possession of weapons, assaults
with a deadly weapon, shootings, and homicides. The shooting
occurred in territory claimed by the Eastlake gang.
Los Angeles Police Officer Juan Cobian testified as a gang
expert for the People. Officer Cobian testified that Castillo was a
self-identified Eastlake gang member who used the moniker
“Swifty.” Castillo also made recorded telephone calls from jail in
which he identified himself as “Swifty.” Castillo had tattoos with
the words “Lakers” and “East,” which were indicative of
membership in the Eastlake gang.
Castillo also has a tattoo that reads, “Rest in Peace, Little
Toker.” Castillo’s younger brother, Juan Castillo, was a member
of the Eastlake gang who had the moniker “Toker.” Juan Castillo
had been fatally shot in 2010. Rosa Ramirez, Castillo’s cousin,
testified that Castillo told her he believed that his brother, Juan,

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had been killed by the Lincoln Heights gang. No Lincoln Heights
gang member was prosecuted for the killing.
It is undisputed that Cardiel was a member of Lincoln
Heights, a gang that has approximately 120 members. Lincoln
Heights has a violent rivalry with the Eastlake gang. In March
2015, the two gangs “were fighting[, t]hey were shooting at each
other[, t]hey were attacking each other’s territory[,] and . . . .
going through each other’s territory and disrespecting each
other . . . .” In Officer Cobian’s opinion, an Eastlake gang
member would be expected to defend his gang’s territory from a
rival gang member who entered that territory. Officer Cobian
opined that the discovery of graffiti with the words “Eastlake”
and “Swifty” indicated that an Eastlake gang member was
claiming his territory.
In Officer Cobian’s opinion, the shooting benefited the
Eastlake gang because it created an atmosphere of intimidation
in the community, and because Castillo, an Eastlake gang
member, believed his brother had been killed by the Lincoln
Heights gang. Additionally, Officer Jorge Alfaro, another gang
expert called by the People, opined that the shooting was gang-
related because Cardiel had multiple Lincoln Heights tattoos, the
shooting occurred in territory claimed by the Eastlake gang, and
freshly painted graffiti was near the scene of the shooting.
2. The Defense’s Theory of the Case
At bottom, the defense theory was that Castillo was not the
assailant, others who were potentially responsible for the killing
were seen in front of the Marban residence prior to the shooting,
Alberto’s testimony was not credible, and the police’s
investigation, including the collection of forensic evidence, was
sloppy. Defense counsel cited several examples of the police’s

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purportedly deficient investigative practices, including a
detective’s failure to change his gloves between handling each
article of clothing found in the bathroom trash can. Additionally,
trial counsel suggested that the GSR found on Castillo could have
been transferred to him when he was handcuffed, and that his
DNA could have been transferred to the rifle without him
touching it.
Counsel also argued that although Alberto denied driving
Castillo to Baldwin Park and then back to the Marban residence
on the day of the shooting, Alberto admitted to a defense
investigator that he had driven Castillo that day. Trial counsel
further contended, among other things, that after Castillo
returned to the Marban residence, he entered Alberto’s bedroom
and went to sleep.
DISCUSSION
A. Castillo’s Claims of Prosecutorial Misconduct Do Not
Warrant Reversal
“A prosecutor’s misconduct violates the Fourteenth
Amendment to the federal Constitution when it ‘infects the trial
with such unfairness as to make the conviction a denial of due
process.’ [Citations.] In other words, the misconduct must be ‘of
sufficient significance to result in the denial of the defendant’s
right to a fair trial.’ [Citation.]” (People v. Harrison (2005)
35 Cal.4th 208, 242 (Harrison I).)
“A prosecutor’s misconduct ‘that does not render a criminal
trial fundamentally unfair’ violates California law ‘only if it
involves “ ‘the use of deceptive or reprehensible methods to
attempt to persuade either the court or the jury.’ ” ’ [Citations.]”
(Harrison I, supra, 35 Cal.4th at p. 242.) Although the cases

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defining prosecutorial misconduct under state law employ “such
adjectives as ‘intemperate,’ ‘reprehensible,’ ‘egregious,’ and
‘deceptive,’ the concept of ‘prosecutorial “misconduct” is
somewhat of a misnomer to the extent that it suggests a
prosecutor must act with a culpable state of mind. A more apt
description of the transgression is prosecutorial error.’ [Citation.]
No ‘showing of bad faith is required to establish prosecutorial
misconduct in argument to the jury.’ [Citation.]” (See People v.
Jasso (2012) 211 Cal.App.4th 1354, 1362.) “ ‘A defendant’s
conviction will not be reversed for prosecutorial misconduct
[under state law] . . . unless it is reasonably probable that a
result more favorable to the defendant would have been reached
without the misconduct.’ [Citation.]” (See Harrison I, at p. 244.)
Castillo contends that the cumulative effect of the People’s
misconduct at trial violated his “federal and state constitutional
rights to due process, requiring reversal.” Specifically, Castillo
identifies the following alleged instances of prosecutorial
misconduct: (1) The People (a) “sandbagg[ed]” the defense during
their rebuttal argument by contending that Castillo could have
called his grandmother as a witness to support Castillo’s theory
that he was at the Marban residence prior to the shooting, and
(b) failed to adhere to their obligations under Brady v. Maryland
(1963) 373 U.S. 83 (Brady), by not disclosing that they had
investigated Castillo’s grandmother’s whereabouts and
determined there was no record indicating she was deceased or
unavailable as a witness; (2) on the eve of trial, the People
indicated for the first time that they intended to call Rosa
Ramirez as a witness regarding statements Castillo made
concerning the murder of his brother and the gang that

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committed it;7 (3) the People showed several photographs to the
jury wherein Castillo was wearing jail wristbands; (4) the People
disclosed to Castillo in the midst of trial that their fingerprint
expert intended to testify that an item’s exposure to hot and/or
cold temperatures may prevent an analyst from recovering usable
prints therefrom; and (5) the People played for the jury a
recording of, and provided the jury with a transcript pertaining
to, Castillo’s interview with police, wherein Officer Alfaro stated
that Castillo did not want to provide the police with a DNA
sample.
We reject this claim of error because Castillo fails to
demonstrate that the cumulative effect of these purported
instances of prosecutorial misconduct warrants reversal.
First, Castillo has not shown that the People violated their
Brady obligations by failing to disclose that they had conducted
an investigation regarding the potential availability of his
grandmother as a witness. “A Brady violation occurs if three
conditions are met: ‘ “The evidence at issue must be favorable to
the accused, either because it is exculpatory, or because it is
7 Although Castillo seems to challenge “[t]he prosecutor’s
failure to . . . timely disclose [Castillo’s brother’s] murder book,”
which allegedly included a note memorializing the contents of
Ramirez’s anticipated testimony, Castillo does not identify any
other evidence in the book that the People were obligated to
produce during discovery. Thus, we need not address the
disclosure of the murder book itself further. (See People v.
Giordano (2007) 42 Cal.4th 644, 666 (Giordano) [“On appeal,
we presume that a judgment or order of the trial court is correct,
‘ “[a]ll intendments and presumptions are indulged to support it
on matters as to which the record is silent, and error must be
affirmatively shown[,]” ’ ” italics added].)

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impeaching; [the] evidence must have been suppressed by the
State, either willfully or inadvertently; and prejudice must have
ensued.” [Citation.] Prejudice, in this context, focuses on “the
materiality of the evidence to the issue of guilt or innocence.”
[Citations.]’ [Citation.]” (People v. Harrison (2017)
16 Cal.App.5th 704, 709 (Harrison II).)
Castillo seems to argue that the People “knew that
[Castillo’s] grandmother was a potentially favorable witness to
the defense, who could corroborate [Castillo’s] presence [at the
Marban residence].” (Italics added.) In response, the People
correctly point out that their “investigation did not reveal the
content of [Castillo’s grandmother’s] would-be testimony let alone
that her testimony would exculpate [Castillo].” Instead, the
record shows only that the People ascertained Castillo’s
grandmother’s potential whereabouts and that public records
suggest she is not deceased.
Nor did the People concede in their rebuttal argument that
Castillo’s grandmother would testify that she saw Castillo at the
Marban residence prior to the shooting. The prosecutor asserted
during the rebuttal argument: “If [Castillo] was there [(i.e., at
the Marban residence prior to the shooting)], the grandmother
would have known.” (Italics added.) Hence, the prosecutor
merely pointed out that Castillo’s factual theory lacked
evidentiary support that he could have easily supplied if his
theory were true. It follows that Castillo has not demonstrated
that the People violated Brady by withholding favorable (i.e.,
exculpatory or impeachment) evidence from him. (See
Harrison II, supra, 16 Cal.App.5th at p. 709.)
Further, Castillo fails to establish that the People
improperly sandbagged him by stating in their rebuttal argument

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that Castillo’s grandmother would have known whether Castillo
was at the Marban residence prior to the shooting. Castillo’s
briefing suggests he believes this remark was improper because it
was not “ ‘fairly responsive to argument of defense counsel’ ” and
was “withh[eld] . . . until rebuttal . . . .” Yet, Castillo concedes—
and the record reveals—that the People made this statement
after defense counsel argued to the jury that Alberto took Castillo
to the Marban residence, and that Castillo then went upstairs to
the bedroom to go to sleep. Thus, it is not apparent that the
People withheld this argument until their rebuttal, or that this
remark was not fairly responsive to Castillo’s closing argument.
Given that Castillo does not further expound upon the basis of
his allegation that the People sandbagged him, we reject his
claim that this remark constitutes prosecutorial misconduct.
(See Giordano, supra, 42 Cal.4th at p. 666 [“ ‘ “[E]rror must be
affirmatively shown[,]” ’ ” italics added].)
Moreover, the trial court granted continuances in an
attempt to mitigate any prejudice resulting from the
prosecution’s belated disclosure of anticipated testimony from
Rosa Ramirez and the People’s fingerprint expert, respectively.
After the defense informed the court that the prosecution had
revealed the contents of Rosa Ramirez’s prospective testimony
shortly before trial was scheduled to commence, the court
continued the trial from August 31, 2018 to January 23, 2019.
With regard to the People’s fingerprint expert, the trial court
authorized Castillo’s counsel to recall this expert for further
cross-examination and, after the expert testified, the proceedings
were continued for one day to afford the defense attorney an
opportunity to consult with another fingerprint expert. Given
these measures, it is not apparent that the People’s alleged

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misconduct relating to these two witnesses had any impact on
Castillo’s defense, nor has Castillo explained why the trial court’s
rulings failed to cure any purported prejudice.
Castillo’s reliance on Officer Alfaro’s recorded statement
that Castillo did not want to provide a DNA sample and on the
photographs showing Castillo’s jail wristbands is also unavailing.
We acknowledge that the prosecution had agreed to (but did not)
ensure that the aforesaid evidence was not presented to the jury.
Nonetheless, the trial court found that any prejudice resulting
from Officer Alfaro’s statement was “minimal” because this was a
“brief” statement in a lengthy interview and Castillo ultimately
provided a sample to the police. Similarly, the trial court found
that photographs depicting Castillo’s jail wristbands caused
Castillo no “undue prejudice” because the photographs were
shown for “no more than two seconds” without any comment and
the jail wristbands were “not readily identifiable” by anyone,
especially lay people. Castillo does not contest the trial court’s
characterizations regarding Officer Alfaro’s statement or the
photographs shown to the jury depicting Castillo’s jail
wristbands. We may thus consider them. (See Giordano, supra,
42 Cal.4th at p. 666.)
Instead, Castillo suggests that had the jury not known that
he declined to provide a DNA sample during his interview with
Officer Alfaro, then the jury would have rejected Alberto’s
testimony that he did not drive Castillo to the Marban residence
on the day of the shooting. In particular, Castillo claims that the
People elicited testimony from a detective that Alberto was
willing to provide a DNA sample, and that Alberto testified he
provided the sample “ ‘because [he] was not involved in
anything.’ ” Any claim that excluding Officer Alfaro’s statement

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from Castillo’s interview with police would have been fatal to
Alberto’s credibility is speculative, especially considering that the
People later elicited testimony from Detective Miguel Barajas
that Castillo “willing[ly] and cooperative[ly]” provided a DNA
sample to him in connection with this case.
In sum, assuming arguendo that (with the exception of the
People’s remark concerning Castillo’s grandmother and their
efforts to ascertain her availability, which we find do not amount
to misconduct), the People did perpetrate prosecutorial
misconduct in the manner Castillo alleges, the cumulative effect
of that purported malfeasance does not warrant reversal of the
judgment. As noted above, Castillo has not shown that the trial
court failed to cure any prejudice resulting from the late
disclosure of Rosa Ramirez’s and the fingerprint expert’s
anticipated testimony, or that the lower court erred in finding
that Officer Alfaro’s statement and the photographs of Castillo’s
jail wristbands had very little, if any, effect on the proceedings.
Indeed, these instances of purported misconduct seemed to have
no effect on the key evidentiary issues of this case, including the
discovery of Castillo’s DNA on the murder weapon, the GSR
found on him, the suspicious circumstances surrounding
Castillo’s presence at the Marban residence, his membership in a
gang that had a violent rivalry with Cardiel’s gang, and Castillo’s
belief that his brother was killed by that rival gang. Thus, we
find the alleged prosecutorial misconduct did not “ ‘infect[ ] the
trial with such unfairness as to make the conviction a denial of
due process[,]’ ” and “ ‘it is [not] reasonably probable that a result
more favorable to [Castillo] would have been reached without the

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misconduct.’ ”8 (See Harrison I, supra, 35 Cal.4th at pp. 242,
244.)
B. Castillo Fails to Establish the Trial Court Erred in
Excluding Vanessa Bonet’s Testimony
Castillo contends that the trial court erroneously excluded
Vanessa Bonet’s testimony under Evidence Code section 352,
and, in so doing, “violated [Castillo’s] federal and state
constitutional rights to present a defense and due process.” He
maintains that on the day of the shooting, Bonet heard gunshots
and observed that several people were near a black SUV,
including a person who “ ‘might have been holding’ ” a handgun.
Castillo insists that this evidence would have supported an
imperfect self-defense theory because “Bonet’s observation of a
man who appeared to be holding a gun near the overturned SUV
supported the defense theory that [Lincoln Heights] gang
members were shooting in the direction of the house, and that
Cardiel was fatally shot by return fire.” (Italics added.) Castillo
further contends that “[i]f the jury believed Bonet’s testimony, it
supported the alternative theory that a third-party shot Cardiel,
who came into the rival gang territory with other, armed gang
members, to carry out a ‘mission’ against [Eastlake].” (Italics
added.) Hence, Castillo’s challenge to the trial court’s ruling is
apparently predicated on his belief that Bonet would have
8 Castillo also contends that the cumulative effect of the
People’s alleged misconduct and the other instances of trial error
identified in his opening brief (e.g., the trial court’s denial of his
motion to bifurcate) warrants the reversal of the judgment. This
claim fails because we reject Castillo’s other claims of trial error
as well. (See Discussion parts B–E, post.)

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testified that she saw several persons near Cardiel’s SUV,
including an individual who may have been holding a handgun.
This theory is contradicted by the trial court’s findings
regarding Bonet’s expected testimony. In the course of excluding
Bonet from trial, the court stated: “With regard to Ms. Bonet’s
testimony, it appears to me that she was looking at a different
location when she heard these shots. Some time passed before
she even focused her attention on the vehicle where she saw
these individuals, and one person in a crouched position who may
have—may have or seemed to her to be holding a gun. [¶] My
impression at this point is that that was a separate and different
location from where it is alleged Mr. Castillo was when he
supposedly fired the shots, and where the decedent was when the
incident occurred.”
The trial court further stated: “[W]here it’s alleged the
defendant shot these shots were at least three houses away—at
least that’s the way it appeared to me on the diagram,[9] from
where the other location was where Ms. Bonet says that she said
she saw another SUV. That, to me, appeared to be entirely
unconnected, at least at this point, with this incident.” The court
then found that exclusion of Bonet’s testimony was appropriate
under Evidence Code section 352 on the ground that its
introduction would result in an “[undue] consumption of time,
create substantial danger of [undue] prejudice, confuse the issues
and possibly mislead the jury.” This ruling, and the findings
9 Attached to the People’s motion to exclude this evidence
was a diagram drawn by Bonet on June 1, 2018, which appears to
depict a black SUV, a curved roadway, and East Los Angeles
Park.

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supporting it, are presumed to be correct. (See Giordano, supra,
42 Cal.4th at p. 666.)
Castillo does not cite any evidence in the record to rebut
these findings. Rather, he seems to rely upon defense counsel’s
representations concerning Bonet’s anticipated testimony,
including his trial attorney’s assertion that “she saw the person
with the gun ‘perhaps within 25 feet’ of where the vehicle was
turned over.” As a consequence, his challenge to the trial court’s
exclusion of Bonet’s testimony fails. (See People v. Flint (2018)
22 Cal.App.5th 983, 1006, fn. 17 [“ ‘[C]ourts will decline to
consider any factual assertion unsupported by record citation at
the point where it is asserted[.]’ ”]; People v. Wallace (2004)
33 Cal.4th 738, 754, fn. 3 [“ ‘[I]t is axiomatic that the unsworn
statements of counsel are not evidence.’ ”].)
In arriving at this conclusion, we observe that Castillo’s
appellate counsel submitted a letter to the trial court clerk
requesting “Castillo’s motion in limine filed on August 30, 2019,
regarding testimony of Vanessa Bonet.” The clerk responded by
filing a certificate stating the following: “After a careful search of
the superior court file, I was unable to locate the Defendant
Castillo’s Motion in Limine filed on August 30, 2019.” It seems
that Castillo’s trial counsel actually filed the motion in question
on August 30, 2018. In any event, Castillo’s appellate counsel
does not clarify whether any evidence we could consider was
attached to the motion in limine (e.g., statements from Bonet).
C. Castillo’s Claims of Instructional Error Fail
In his reply, Castillo readily admits his argument that “the
trial court erred by failing to instruct the jury on the defenses of
imperfect-self defense and third-party culpability . . . depend on
the previous argument that Bonet’s testimony [was] improperly

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excluded.” Because Castillo’s appellate claim challenging the
exclusion of Bonet’s testimony fails, so too do his claims of
instructional error.
D. The Trial Court Did Not Err in Denying Castillo’s
Motion to Bifurcate the Criminal Street Gang
Enhancement from the Trial of the Underlying
Substantive Offenses
“Bifurcation of gang allegations is appropriate where the
gang evidence is ‘so extraordinarily prejudicial, and of so little
relevance to guilt, that it threatens to sway the jury to convict
regardless of the defendant’s actual guilt.’ [Citation.] In a case
not involving imposition of the gang enhancement, such ‘evidence
of gang membership is potentially prejudicial and should not be
admitted if its probative value is minimal.’ [Citation.] On the
other hand, ‘evidence of gang membership is often relevant to,
and admissible regarding, the charged offense.’ [Citation.] Given
the public policy preference for the efficiency of a unitary trial, a
court’s discretion to deny bifurcation of a gang allegation is
broader than its discretion to admit gang evidence in a case with
no gang allegation. [Citation.] Thus, ‘[e]ven if some of the
evidence offered to prove the gang enhancement would be
inadmissible at a trial of the substantive crime itself . . . a court
may still deny bifurcation.’ [Citation.]” (People v. Franklin
(2016) 248 Cal.App.4th 938, 952 (Franklin).)
“We review the trial court’s denial of the motion to
bifurcate for abuse of discretion, based on the record as it stood at
the time of the ruling. [Citations.] Our review is guided by the
familiar principle that ‘[a] court abuses its discretion when its
rulings fall “outside the bounds of reason” ’ ”—i.e., “ ‘ “the trial
court exercised its discretion in an arbitrary, capricious, or

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patently absurd manner that resulted in a manifest miscarriage
of justice[.]” ’ ” (See Franklin, supra, 248 Cal.App.4th at p. 952.)
Further, “[i]f the trial court’s ruling was correct on the record
before it, the ruling is subject to reversal only upon a showing
that ‘ “joinder actually resulted in ‘gross unfairness’ amounting to
a denial of due process.” ’ [Citation.]” (Id. at pp. 952–953.)
Castillo argues the trial court erred in denying his motion
to bifurcate the criminal gang enhancement from the trial of the
underlying offenses because “[e]vidence that [Castillo’s] brother
was fatally shot five years earlier was too remote to support a
motive of gang retaliation; . . . there was no evidence of a
confrontation of rival gang members before the shooting to
support the prosecution’s theory that the perpetrator identified
the victim as a rival gang member”; and “[t]he failure to bifurcate
the gang enhancement created the impermissible risk that the
jury would use evidence of [his] criminal propensity as a gang
member to substitute for proof of the charged crimes.” For the
reasons discussed below, we conclude Castillo has not established
that the trial court abused its discretion in denying his motion.
First, Castillo claims that “[t]he shooting of [Castillo’s]
brother was . . . too remote to supply a gang motive for the
charged crimes” because “[i]t is patently unreasonable to
conclude that a street gang would wait five years to pay back a
rival gang for the killing of a gang member in order to ‘get that
respect back’ for their gang,” and “[i]t is equally unreasonable to
conclude that a street gang would wait five years to prevent the
appearance that a rival gang is stronger.” Yet, Castillo concedes
the People offered evidence that Lincoln Heights and Eastlake
“were engaged in a violent rivalry” involving “many shootings.”
(Italics added.) Thus, the trial court did not act in “ ‘ “an

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arbitrary, capricious, or patently absurd manner” ’ ” in impliedly
finding there was evidence that Eastlake gang members had
engaged in violent skirmishes with Lincoln Heights on other
occasions prior to the shooting and did not “wait” five years to
retaliate against Lincoln Heights for the murder of Castillo’s
brother. (See Franklin, supra, 248 Cal.App.4th at p. 952.)
Further, the lower court acted within “ ‘ “the bounds of reason” ’ ”
in concluding that even after five years, Castillo would still want
revenge for the murder of a person who was his sibling and a
fellow Eastlake gang member. (See ibid.)
Next, Castillo argues that “[t]he prosecutor’s assertion that
the shooting resulted from a ‘confrontation’ between rival gang
members was . . . without any evidentiary support” because
“Cardiel . . . was driving alone[ ] in his . . . vehicle[ and] was shot
at long range with a high-powered rifle.” Nevertheless, Castillo
concedes that the “[p]olice found the rifle used in the shooting in
the back yard” and that “DNA on the rifle matched [Castillo’s]
DNA profile.” It is also undisputed the People offered evidence
that: Shortly after the shooting, the police found Castillo
breathing heavily and sweating in a bedroom inside the Marban
residence, and the police found casings fired from the rifle just
outside that building. In addition, the People introduced
evidence that Castillo was an Eastlake gang member, Cardiel
was a Lincoln Heights gang member who had tattoos indicating
he was a member of that gang, the shooting occurred in territory
claimed by the Eastlake gang, and across the street from the
Marban residence was recently spray-painted graffiti that
included Castillo’s gang moniker (Swifty) and the name of
Castillo’s gang. Thus, the trial court acted within the bounds of
reason in implicitly ruling that the People proffered

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circumstantial evidence that the shooting was a confrontation
between two rival gang members.
Lastly, Castillo’s assertion that the denial of his motion
“created the impermissible risk that the jury would use evidence
of [his] criminal propensity as a gang member to substitute for
proof of the charged crimes” appears to be predicated on his claim
that there was no “connection between [his] gang affiliation and
the charged crime . . . .” That premise fails because, as noted
above, the People offered evidence suggesting that Castillo’s gang
membership supplied a motive for the shooting. (See Franklin,
supra, 248 Cal.App.4th at pp. 952–953 [“Bifurcation of gang
allegations is appropriate where the gang evidence is ‘so
extraordinarily prejudicial, and of so little relevance to guilt, that
it threatens to sway the jury to convict regardless of the
defendant’s actual guilt.’ [Citation.] . . . [¶] [G]ang evidence is
‘relevant and admissible when the very reason for the underlying
crime, that is the motive, is gang related.’ [Citation.] ‘ “[B]ecause
a motive is ordinarily the incentive for criminal behavior, its
probative value generally exceeds its prejudicial effect, and wide
latitude is permitted in admitting evidence of its existence.” ’
[Citation.]”].)
In conclusion, we find the trial court did not err in denying
Castillo’s motion to bifurcate the gang enhancements from the
trial of the underlying charges.
E. The People Presented Substantial Evidence that
Castillo Perpetrated the Shooting for the Benefit of a
Criminal Street Gang
“ ‘In addressing a challenge to the sufficiency of the
evidence supporting a conviction, the reviewing court must
examine the whole record in the light most favorable to the

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judgment to determine whether it discloses substantial
evidence—evidence that is reasonable, credible and of solid
value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ ” (People v. Ochoa
(2009) 179 Cal.App.4th 650, 656–657 (Ochoa).) In conducting
this analysis, the reviewing court must “view[ ] all the evidence
in the light most favorable to the prosecution, and draw[ ] all
reasonable inferences in favor of the jury’s findings.” (See
People v. Perez (2017) 18 Cal.App.5th 598, 607 (Perez).)
“[W]e must begin with the presumption that the
evidence . . . was sufficient, and the defendant bears the burden
of convincing us otherwise. . . . [¶] . . . [A]n appellate court is ‘not
required to search the record to ascertain whether it contains
evidence that will sustain [the appellant’s] contentions.’
[Citation.] . . . [¶] . . . [T]he defendant must set forth in his
opening brief all of the material evidence . . . in the light most
favorable to the People, and then must persuade us that evidence
cannot reasonably support the jury’s verdict.” (See People v.
Sanghera (2006) 139 Cal.App.4th 1567, 1573–1574 (Sanghera).)
This substantial evidence standard applies to sufficiency-of-
the-evidence challenges to enhancements imposed pursuant to
section 186.22, subdivision (b). (See Ochoa, supra,
179 Cal.App.4th at pp. 656–657.) Section 186.22, subdivision (b)
authorizes the trial court to enhance a defendant’s prison
sentence if he or she committed a felony “for the benefit of, at the
direction of, or in association with any criminal street gang, with
the specific intent to promote, further, or assist in any criminal
conduct by gang members . . . .” (See § 186.22, subds. (b)(1)
& (b)(4).)

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Castillo alleges the People did not offer sufficient evidence
that he perpetrated the shooting for the benefit of a criminal
street gang. In support of this claim of error, Castillo seems to
argue that Detective Cobian’s and Officer Alfaro’s testimony10
that the shooting was gang-related was speculative because there
was no evidence “that a confrontation between rival gang
members precipitated the shooting.” For the same reasons we
found that the trial court did not act arbitrarily, capriciously, or
in a patently absurd manner in impliedly finding there was
circumstantial evidence that the shooting was a confrontation
between two rival gang members, a rational trier of fact could
have also drawn that inference as well. (See Discussion part D,
ante; Perez, supra, 18 Cal.App.5th at p. 607 [holding that, in
reviewing a sufficiency-of-the-evidence challenge, an appellate
court must “view[ ] all the evidence in the light most favorable to
the prosecution, and draw[ ] all reasonable inferences in favor of
the jury’s findings”].)
Further, Officer Cobian testified that an Eastlake gang
member would be expected to defend territory claimed by his
gang from a rival gang member who entered his gang’s territory.
Given the evidence identified in Discussion part D, ante, that
Castillo (an Eastlake gang member) confronted Cardiel (a Lincoln
Heights gang member) in Eastlake gang territory, the jury could
reasonably have relied upon Officer Cobian’s testimony to
10 Although Castillo actually contends that Detective
Cobian’s and Detective Ramirez’s expert opinions were deficient,
the Attorney General correctly points out that Castillo actually
intended to refer to Detective Cobian’s and Officer Alfaro’s trial
testimony.

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conclude that Castillo committed the instant offenses to defend
territory claimed by his gang.
Castillo also challenges Officer Alfaro’s testimony that the
presence of freshly painted Eastlake gang graffiti near the
shooting indicated that the killing was gang-related. Castillo
insists that under that logic, “any crime committed in gang
territory that had been sprayed with graffiti would be
transformed into a gang-related offense.” Castillo ignores the
evidence that the freshly-sprayed graffiti bore his gang moniker,
which suggests that he recently spray painted it. He also
overlooks Officer Cobian’s testimony that the presence of this
graffiti indicated that an Eastlake gang member had spray
painted the wall to claim his gang’s territory. Under these
circumstances, a rational factfinder could have considered the
graffiti to be evidence further indicating that Castillo shot
Cardiel for the purposes of defending Eastlake gang territory
from one of its rivals.
In sum, Castillo has not shown the jury’s finding that he
perpetrated the crimes in question to benefit his gang is
unsupported by substantial evidence. Accordingly, Castillo’s
insufficiency-of-the-evidence challenge to the gang enhancements
fails. (See Sanghera, supra, 139 Cal.App.4th at p. 1573 [“[W]e
must begin with the presumption that the evidence . . . was
sufficient, and the defendant bears the burden of convincing us
otherwise. . . .”].)
F. Although the Trial Court Did Not Err in Imposing
the 15-Year Minimum Parole Eligibility Date, the
10-Year Gang Enhancements Should Be Stricken
As we noted earlier, the trial court imposed the following
sentence for Castillo’s conviction for first degree murder:

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25 years to life, with a consecutive sentence of 25 years to life
imposed on that count pursuant to section 12022.53,
subdivision (d); and a 10-year concurrent enhancement on
count 1 under section 186.22, subdivision (b)(1)(C) that was
stayed pursuant to section 654. With regard to Castillo’s
aggregate prison term, the trial court ruled that, pursuant to
section 186.22, subdivision (b)(5), Castillo could not be paroled
until he had served a minimum of 15 years of his prison sentence.
Additionally, in respect to count 2, the trial court imposed, but
stayed, a 10-year enhancement pursuant to section 186.22,
subdivision (b)(1)(C).
Castillo claims that the trial court’s imposition of the
15-year minimum parole eligibility date was an unauthorized
sentence that must be stricken because he had been sentenced to
an indeterminate term of 25 years to life. Furthermore, the
parties agree that we should strike the 10-year gang
enhancements on counts 1 and 2, respectively. Although we
accept the parties’ concession regarding the 10-year
enhancements, (see Artal, supra, 111 Cal.App.4th at p. 275,
fn. 2), we reject Castillo’s request to strike the 15-year minimum
parole eligibility date for the reasons discussed below.
Section 186.22, subdivision (b)(1)(C) states in pertinent
part: “Except as provided in paragraph[ ] . . . (5), any person who
is convicted of a felony committed for the benefit of, at the
direction of, or in association with any criminal street gang, with
the specific intent to promote, further, or assist in any criminal
conduct by gang members, shall, upon conviction of that felony,
in addition and consecutive to the punishment prescribed for the
felony or attempted felony of which he or she has been convicted,
be punished as follows: . . . [¶] . . . [¶] If the felony is a violent

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felony, as defined in subdivision (c) of Section 667.5, the person
shall be punished by an additional term of 10 years.” (See
§ 186.22, subd. (b)(1)(C).)
As relevant here, subdivision (b)(5) in turn provides: “[A]ny
person who violates this subdivision in the commission of a felony
punishable by imprisonment in the state prison for life shall not
be paroled until a minimum of 15 calendar years have been
served.” (See § 186.22, subd. (b)(5).)
Although Castillo’s argument on this point is not
altogether clear, he apparently relies on People v. Herrera (2001)
88 Cal.App.4th 1353, for the proposition that, “[w]hen a
defendant is sentenced to 25-years-to-life for first degree murder,
the minimum fifteen-year parole eligibility of section 186.22,
subdivision (b)(5), does not apply.”11 In Herrera, a jury convicted
a defendant of first degree murder, and found true a firearm
allegation under section 12022.53, subdivision (d) and a gang
enhancement allegation under section 186.22, subdivision (b)(1).
(Herrera, at pp. 1356–1357.) The trial court imposed a prison
term of 25 years to life, along with a consecutive term of 25 years
to life for the firearm enhancement, and an additional term of
3 years for the gang enhancement. (See id. at p. 1357.)
11 Although Castillo cites People v. Harper (2003)
109 Cal.App.4th 520, for this proposition as well, Harper actually
arrived at the opposite conclusion. (See Harper, at pp. 522, 527
[“Because [the defendant] was sentenced to a life term [for first
degree murder], section 186.22 mandates that the alternate
punishment of a 15-year minimum parole eligibility be imposed.
In this case, the 15-year minimum parole eligibility has little
effect since it is subsumed in the 25-year minimum parole
eligibility imposed for the underlying murder conviction.
[Citation.]”].)

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On appeal, the Herrera court rejected the defendant’s
argument that the 3-year gang enhancement had to be stricken
and replaced with a minimum period of imprisonment prior to
parole of 15 years. (Herrera, supra, 88 Cal.App.4th at p. 1357.)
The Court of Appeal reasoned that section 186.22,
subdivision (b)(4) (which has since been moved to subd. (b)(5))
was inapplicable because certain amendments to section 190
barred a defendant convicted of murder from being paroled before
serving 25 years in prison. (See Herrera, at pp. 1357–1365 &
fns. 2–3.) As a consequence, Herrera affirmed the 3-year
enhancement and held that the 15-year minimum parole
eligibility date was inapplicable. (See id. at pp. 1363–1364.)
Our high court later rejected Herrera’s assumption that
section 190 renders section 186.22, subdivision (b)(5) inapplicable
to defendants convicted of first degree murder. In People v. Lopez
(2005) 34 Cal.4th 1002, the high court concluded there is no
inconsistency between these two provisions. Lopez explained
that “the . . . penalty set forth in section 190—i.e., 25 years to
life—is [a] proper punishment for [a] defendant’s first degree
murder conviction,” and “[t]he true finding under
section 186.22(b)(5), which provides for a lower minimum term,
‘is a factor that may be considered by the Board of Prison Terms
when determining a defendant’s release date, even if it does not
extend the minimum parole date per se.’ [Citation.]” (See Lopez,
at p. 1009.) “Thus, the fact that section 190 fixes a parole
eligibility date equal to or greater than that provided by
section 186.22(b)(5) is neither an absurdity nor an anomaly . . . .”
(See Lopez, at p. 1009.)
Because Lopez impliedly disapproved of Herrera’s
interpretation of the predecessor to section 186.22,

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subdivision (b)(5), it would be improper for us to strike Castillo’s
15-year minimum parole eligibility date. (See Tanguilig v.
Bloomingdale’s, Inc. (2016) 5 Cal.App.5th 665, 673 [“[A]s an
inferior state court, we are bound to follow the California
Supreme Court’s holding . . . under the doctrine of stare
decisis.”].)

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DISPOSITION
The judgment is modified as follows: (1) We strike the
10-year gang enhancement imposed on count 1 under Penal Code
section 186.22, subdivision (b)(1)(C); and (2) we strike the 10-year
gang enhancement imposed on count 2 under Penal Code
section 186.22, subdivision (b)(1)(C). As modified, the judgment
is affirmed.
Upon the issuance of our remittitur, the trial court is
directed to prepare a corrected minute order consistent with the
views expressed in this opinion, amend the abstract of judgment,
and send certified copies of the amended abstract of judgment to
the Department of Corrections and Rehabilitation. The clerk of
the court is directed to send a copy of the opinion and remittitur
to the Department of Corrections and Rehabilitation. (See
Cal. Rules of Court, rule 8.272(d)(2).)
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J. FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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