P. v. Castaneda

Filed 11/8/18 P. v. Castaneda CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JAIME MENDEZ CASTANEDA
et al.,
Defendants and Appellants.
B278764
Los Angeles County
Super. Ct. No. YA092302
APPEAL from judgments of the Superior Court of
Los Angeles County, Steven R. Van Sicklen, Judge. Affirmed in
part, reversed in part, and remanded with instructions.
James R. Bostwick, Jr., under appointment by the Court of
Appeal, for Defendant and Appellant Jaime Mendez Castaneda.
Linda L. Gordon, under appointment by the Court of
Appeal, for Defendant and Appellant Walter Maradiaga.
Julie Schumer, under appointment by the Court of Appeal,
for Defendant and Appellant Byron Zamora.

-- 1 of 23 --

2
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, William H. Shin and Mary Sanchez, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
After a three-defendant trial, a jury convicted Jaime
Mendez Castaneda of second degree robbery (Pen. Code, § 211),1
convicted Castaneda, Walter Maradiaga, and Byron Zamora of
assault with a deadly weapon (§ 245, subd. (a)(1)), and found true
that Zamora personally inflicted great bodily injury (§ 12022.7,
subd. (a)). All three defendants appeal. We strike the protective
orders naming the defendants, vacate Maradiaga’s sentence and
remand for resentencing, and otherwise affirm the judgments.
BACKGROUND
An information charged that on or about April 14, 2015,
Castaneda, Maradiaga, and Zamora robbed Michael W., in
violation of section 211 (count 1), and assaulted Michael W. with
a deadly weapon, in violation of section 245, subdivision (a)(1)
(count 2); and alleged all three defendants personally inflicted
great bodily injury on Michael W., under section 12022.7,
subdivision (a). The information alleged all three defendants had
prior felony convictions.
Castaneda, Zamora, and Maradiaga all pleaded not guilty.
Before trial, the court granted Castaneda’s motion to strike the
allegation that he had a prior serious felony conviction.
At trial, 51-year-old Michael W. (described by the
prosecutor as developmentally disabled) testified that on
1 All subsequent statutory references are to the Penal Code.

-- 2 of 23 --

3
April 14, 2015, he was riding his bike near the El Zorro market
when he saw a small dog. He chased the dog “by accident” (and
without meaning to hurt it), because dogs used to chase him
when he was younger, and one had bitten him. Castaneda,
Maradiaga, and Zamora (whom Michael W. had never seen
before) were outside the market. Castaneda said, “Don’t chase
my dog,” and ordered Michael W. not to run off. Michael W.
testified that Castaneda told him, “I had to get beer for them, or
he’s going to beat me, you know, crap out of me.” The prosecution
played a surveillance video for the jury.
Afraid all three men would beat him up if he did not buy
beer, and hoping to make Castaneda less angry, Michael W. went
inside the market, followed by Castaneda and Zamora, who stood
in line behind him. Michael W. bought three beers. The store’s
back doors were locked so he could not leave, and when he asked
to use the phone to call the police, the cashier said, “No.”
Maradiaga entered the market and asked Michael W. to buy him
a soda, but Michael W. responded he did not have enough money.
Michael W. went back to the cooler to get more beer for
himself, paid for two beers, and went outside. The defendants
were waiting, and sneaked up on Michael W. from behind.
Maradiaga said, “I want your money.” Michael W. pulled his
wallet out halfway and put it back in his pocket. Michael W.
testified, “Then he stabbed me.” Asked who stabbed him,
Michael W. first said either Zamora or Maradiaga stabbed him,
although maybe one held him down, or one or both stabbed him
and held him down. He then said Maradiaga stabbed him while
he said: “Don’t put the knife too far in . . . [b]ecause I don’t want
to die too fast. I don’t want to die.” The three men ran off.

-- 3 of 23 --

4
Michael W. went back inside the market and told the
cashier, “This guy stabbed me.” The cashier would not let him
use the phone to call 911. He rode his bike to a nearby auto parts
store, where someone called 911 for him. Police and paramedics
arrived and took Michael W. to the hospital. They tried to
interview him, but he could hardly talk.
Michael W. was in the hospital for about eight days. He
had 40 stitches in his stomach. Michael W. had a long surgical
scar from his chest to his belt line, and two knife marks on the
left side of his belly. Michael W. identified a prosecution exhibit
as the folding knife used to stab him. He had not seen the knife
handle at the time of the stabbing, but had seen the blade, which
was about three inches long.
On cross-examination, Michael W. testified Castaneda said
“[h]e was going to beat the living shit out of me.” Michael W.
volunteered to buy Castaneda a beer because he was afraid, and
Castaneda then asked him to buy a beer for his friends. After he
bought three beers for Castaneda, Maradiaga, and Zamora, he
went back into the store and bought two more beers for himself.
Michael W. testified that he saw the knife in Zamora’s hand, and
Zamora held him during the stabbing. He then said all three
were holding him.
Michael W. agreed the surveillance video did not show him
asking the cashier to call 911 when he bought beer for the men.
Outside, the three men had circled him like hawks or hyenas and
then he went down. Looking at the video, Michael W. said
Zamora stabbed him, and Castaneda stood apart during the
attack. When Michael W. went back into the store after the
stabbing, he asked for a bag for his beer and then told the
cashier, “This guy stabbed me.” Castaneda came up to him and

-- 4 of 23 --

5
asked, “Why did that guy grab you like that?” Michael W.
responded, “I don’t know.”
Michael W. agreed that new situations scared him and he
was a little afraid whenever he met new people, including the
first time he met the prosecutor. He said, “You want to ask me a
million questions, okay.”
An Inglewood Police Department officer testified she
responded to the 911 call and found Michael W. sitting outside
the auto parts store. Michael W. showed her the injuries on the
left side of his abdomen, and told her three male Hispanics were
involved (without saying who stabbed him). He described two of
the men by their clothing, and the third had a tattoo on his chin.
The officer detained Maradiaga and Castaneda. When she
searched Castaneda, she found the folding knife; the blade was
bent.
A detective testified he arrested Zamora in the course of the
investigation. Castaneda, Maradiaga, and Zamora all told the
detective they were at the El Zorro market, but gave no more
information.
The defendants rested without presenting any evidence.
The trial court granted Maradiaga’s and Zamora’s motions for a
judgment of acquittal under section 1118.1 on the robbery count,
finding there was insufficient evidence that Michael W. was
afraid of anyone other than Castaneda when he bought the beer,
or that the other defendants knew Castaneda had threatened
Michael W. The trial court also granted Maradiaga’s section
1118.1 motion on the great bodily injury enhancement (§ 120227,
subd. (a)), because the enhancement applied only to the
defendant who stabbed Michael W.

-- 5 of 23 --

6
The jury found Castaneda guilty of robbery and assault
with a deadly weapon, Maradiaga guilty of assault with a deadly
weapon, and Zamora guilty of assault with a deadly weapon, also
finding true that Zamora inflicted great bodily injury.
The trial court sentenced Castaneda to two years in state
prison (the low term) for robbery, with a concurrent term of two
years for assault with a deadly weapon.
In a bifurcated proceeding, Maradiaga admitted to a prior
felony conviction for assault with a deadly weapon, within the
meaning of section 667, subdivision (a)(1), and section 1170.12,
subdivision (b). The trial court sentenced Maradiaga to a total of
nine years in state prison, including enhancements.
In a bifurcated proceeding, Zamora admitted a prior felony
conviction for voluntary manslaughter (§ 192, subd. (a)), within
the meaning of section 667, subdivision (a)(1), and section
1170.12, subdivision (b). The trial court sentenced Zamora to a
total of 16 years in state prison, including enhancements.
All three defendants filed notices of appeal.
DISCUSSION
1. Castaneda
Castaneda argues insufficient evidence supports his
convictions for robbery and for assault with a deadly weapon.
On a challenge to the sufficiency of the evidence, we view
the evidence in the light most favorable to the prosecution to
determine whether any rational trier of fact could have found the
elements of the crime beyond a reasonable doubt. (People v.
Young (2005) 34 Cal.4th 1149, 1175 (Young).) We “ ‘ “presume in
support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.” ’ ” (Ibid.)

-- 6 of 23 --

7
“Robbery is the felonious taking of personal property in the
possession of another, from his person or immediate presence,
and against his will, accomplished by means of force or fear.”
(§ 211.) The defendant’s use of force or fear must be motivated by
an intent to steal. (People v. Anderson (2011) 51 Cal.4th 989,
994.)
Castaneda argues the evidence does not establish that he
took Michael W.’s personal property (the money to buy beer)
against his will. He admits he struck fear in Michael W. by
threatening to “beat the living crap” out of him, but denies he
demanded that Michael W. hand over any property, arguing it
was Michael W.’s idea to buy beer for Castaneda and the other
defendants. Substantial evidence thwarts this argument.
Michael W. testified he “had to get beer for them, or he’s going to
beat me.” Although on cross-examination he testified he
volunteered to buy the beer because he was afraid of Castaneda,
he added that Castaneda had asked him to buy the beer.
Viewing this testimony in the light most favorable to the jury’s
finding that Castaneda was guilty of robbery, sufficient evidence
supported the jury’s conclusion that Michael W. bought the beer
against his will.
Castaneda also argues he was motivated by anger at
Michael W. for chasing his dog, not by a desire to take Michael
W.’s property. While that is one possible interpretation of the
evidence, a rational jury also could have concluded that
Castaneda was motivated by a desire to take Michael W.’s money
to buy the beer.
As to his conviction for assault with a deadly weapon,
Castaneda argues the jury concluded that Zamora was the
stabber (by finding true that Zamora personally inflicted great

-- 7 of 23 --

8
bodily injury), and no substantial evidence shows he aided and
abetted Zamora. Here too we conclude the evidence supported
Castaneda’s conviction.
An aider and abettor is guilty as a principal. (§ 31.) A
defendant aids and abets when he acts “ ‘with knowledge of the
criminal purpose of the perpetrator and with an intent or purpose
either of committing, or of encouraging or facilitating commission
of, the offense.’ ” (People v. Chiu (2014) 59 Cal.4th 155, 161.)
Intent is rarely shown by direct proof and usually must be
inferred from the circumstances surrounding the offense.
(People v. Pre (2004) 117 Cal.App.4th 413, 420.) While mere
presence at the scene or failure to prevent a crime alone is not
sufficient, the jury may consider “ ‘presence at the scene of the
crime, companionship, and conduct before and after the offense.’ ”
(People v. Campbell (1994) 25 Cal.App.4th 402, 409 (Campbell).)
Here, Castaneda did not “independently happen by the scene of
the crime.” (Ibid.) Before the stabbing, he threatened Michael
W. with a beating, instructed him to get beer, and accompanied
him into the market with Zamora. He then waited outside the
market with Zamora and Maradiaga, circling Michael W. when
he exited (although not holding Michael W. down during the
stabbing).
After the stabbing, Michael W. testified Castaneda asked
him why “that guy grab[bed] you like that,” and Castaneda
argues the jury could infer Castaneda was surprised by the knife
attack. Yet the folding knife was in Castaneda’s possession when
he was arrested, which supports an inference that the knife may
have been his to begin with and that he gave it to Zamora to use.
Even when the circumstances shown by the evidence might also
reasonably be reconciled with a contrary finding, we nevertheless

-- 8 of 23 --

9
will not reverse a judgment for insufficient evidence. (People v.
Catlin (2001) 26 Cal.4th 81, 139.)
The evidence “reasonably indicates that [Castaneda] played
an affirmative supportive role in the [stabbing] and was not
simply an innocent, passive, and unwitting bystander.”
(Campbell, supra, 25 Cal.App.4th at p. 410.)
Sufficient evidence supports Castaneda’s convictions for
robbery and assault with a deadly weapon.
2. Maradiaga
a. Sufficient evidence supports Maradiaga’s conviction
Like Castaneda, Maradiaga argues insufficient evidence
supports his conviction for aiding and abetting assault with a
deadly weapon.
Michael W. testified that after he bought the beers for
Castaneda and Zamora, Maradiaga came into the market and
asked Michael W. to buy him a soda; Michael W. refused.
Maradiaga, like Castaneda, was outside the market with Zamora
when Michael W. exited, and Maradiaga said, “I want your
money.” At first Michael W. testified Maradiaga stabbed him,
but then said it was Zamora, and Zamora and/or Maradiaga held
him down. The video shows Maradiaga very close to Michael W.
during the stabbing. The jury could reasonably conclude that
Maradiaga engaged in concerted action with Castaneda and
Zamora before the stabbing, implying a common purpose, and
that, like Castaneda, Maradiaga intimidated and blocked
Michael W. from leaving after he exited the market. A jury could
also conclude that Maradiaga played an affirmative supportive
role in restraining Michael W. during the stabbing and was not
an unwitting bystander. “ ‘ “Liability attaches to anyone

-- 9 of 23 --

10
‘concerned,’ however slight such concern may be.” ’ ” (People v.
Swanson-Birabent (2003) 114 Cal.App.4th 733, 743.)
b. The record does not affirmatively show Maradiaga
voluntarily and intelligently waived his constitutional
rights when he admitted his prior conviction
Maradiaga also argues he did not voluntarily and
intelligently waive his constitutional right to trial before he
admitted his prior conviction.
The information alleged Maradiaga had a prior conviction
in April 2012 for assault with a deadly weapon (§ 245,
subd. (a)(1)). Maradiaga agreed to bifurcate trial on the
allegation. After excusing the jury to deliberate, the trial court
noted that both Maradiaga and Zamora had strike priors charged
against them, and asked counsel to “have a discussion, if [you]
haven’t already, with your clients about whether they want a
jury―this jury to decide that should the jury come back with a
verdict that could make these priors relevant. Or whether they
would allow me to determine whether these priors―the
convictions themselves occurred.” The court added: “Because,
gentlemen, you have the right to have a jury trial on that issue.
Priors were charged against the two of you as sentence
enhancements.” Zamora’s counsel stated Zamora would waive
jury trial, and Zamora agreed he was willing to have the court,
rather than a jury, decide whether the prior occurred.
Maradiaga’s counsel then stated Maradiaga agreed “to waive a
jury and let the court decide.” The court asked Maradiaga if he
agreed; he answered yes, and waived his right to trial by jury on
the prior.

-- 10 of 23 --

11
At sentencing six weeks later, the court advised Maradiaga:
“You have a right to a trial on whether or not
the prior that was charged against you . . . to
enhance your sentence occurred. It’s not the
underlying facts, but it’s the fact that either a
plea or verdict had occurred that’s in issue.
And if you’re willing to acknowledge that
indeed the prior that was charged against you
[under] Penal Code 245(a)(1) in case YA081756.
If you’re not contesting that you were convicted
of this and want to admit that, then you are
waiving your right to have a trial on the issue.
I’d hear the trial because you’ve already waived
a jury. And all I would determine is whether or
not there are documents in existence that
reflected that this conviction occurred. Do you
understand that?”
After counsel and Maradiaga conferred, counsel stated, “Your
honor, his issue is he’s on probation for the prior.”2 The court
responded: “Doesn’t matter. The only issue legally is whether
that prior [conviction] occurred on or about April 2nd, 2012, and
that the prior conviction alleged is a violation of Penal Code
section 245(a)(1), assault.” Again, counsel and Maradiaga
conferred. The court continued:
“If you admit the prior, then I would not ask to
look into the documents that the People would
2 There was some confusion about Maradiaga’s probation
status. Later, the prosecutor stated that Maradiaga had been off
probation for the prior strike only 12 days before he committed
the current offense in 2015.

-- 11 of 23 --

12
give me to determine whether this occurred.
You’d be waiving your right to a trial. And the
trial would simply be me essentially looking at
the documents. Are you willing to waive your
right to a trial and admit the prior conviction?”
After conferring again with Maradiaga, counsel asked the court
to repeat the question, and the court stated:
“You are now here on the issue of whether or
not you have a prior felony conviction on your
record. That’s the only thing we’re discussing
right now. And it’s alleged that on April 2nd,
2012, you either entered a plea or were found
guilty of violating Penal Code section 245(a)(1),
which is a felony assault charge.3 So I’m
simply asking whether you admit this prior
conviction or not?”
Maradiaga answered, “[y]es,” and the court found the prior
allegation true. The court imposed the low term of two years,
doubled the sentence to four years for the strike prior, and
imposed an additional consecutive five year enhancement under
section 667(a)(1) for a total sentence of nine years.
Before a defendant admits the truth of an allegation of a
prior conviction, the trial court must advise the defendant that by
admitting the conviction, he waives his constitutional rights to a
jury trial, the right to confront and cross-examine witnesses, and
the privilege against self-incrimination. (People v. Mosby (2004)
3 Three days before the sentencing hearing, Maradiaga filed
a motion to strike his prior strike conviction which he described
as a “plea to Penal Code, section 245 (A)(1) [sic].” There is no
other record evidence of a guilty plea.

-- 12 of 23 --

13
33 Cal.4th 353, 359-360 (Mosby).) The trial court must also
advise the defendant of the penal consequences of the admission,
but where “the only error is a failure to advise of the penal
consequences, the error is waived if not raised at or before
sentencing.” (People v. Wrice (1995) 38 Cal.App.4th 767, 770-771;
In re Yurko (1974) 10 Cal.3d 857, 864-865.)
Here, on the day the jury began deliberations, the court
advised Maradiaga of his right to a jury trial, and he waived that
right. Nevertheless, at Maradiaga’s sentencing six weeks later,
the court did not advise Maradiaga of his right against self-
incrimination and his right to confront adverse witnesses before
Maradiaga admitted the prior conviction, nor did the court advise
him of the penal consequences. His admission resulted in a
doubling of his two-year sentence to four years and an additional
five year enhancement.4 As the court advised Maradiaga of his
right to a jury trial, but not his right to remain silent and his
right to confront adverse witnesses, this is an “incomplete
advisement” case. (Mosby, supra, 33 Cal.4th at p. 363.) Mosby
held that when “immediately after a jury verdict of guilty, a
defendant admits a prior conviction after being advised of and
waiving only the right to trial . . . that admission [can] be
voluntary and intelligent even though the defendant was not told
of, and thus did not expressly waive, the concomitant rights to
remain silent and confront adverse witnesses . . . if the totality of
the circumstances surrounding the admission supports such a
conclusion.” (Id. at p. 356, italics added.) Mosby “had just
4 At Zamora’s sentencing hearing earlier the same morning
(at which Maradiaga was not present), the court did advise
Zamora of his right to confront witnesses and to testify in his own
behalf before Zamora admitted his prior conviction.

-- 13 of 23 --

14
undergone a jury trial at which he did not testify,” so “he not only
would have known of, but had just exercised, his right to remain
silent at trial,” and “had, through counsel, confronted witnesses
at that immediately concluded trial, [so] he would have
understood that at a trial he had the right of confrontation.”
(Id. at p. 364.) The defendant’s previous experience in the
criminal justice system also was relevant to whether he
knowingly waived his constitutional rights, and as Mosby’s prior
conviction had followed his plea of guilty, he would have been
advised of his rights in the earlier case and had experience in
waiving his trial rights. (Id. at p. 365.)
In People v. Lloyd (2015) 236 Cal.App.4th 49, 59 (Lloyd), as
here, when the jury began deliberations, the defendant waived
his right to a jury trial on his prior conviction and the court
advised him of his right to a court trial. His admission of his five
separate prior terms in state prison “was not made until more
than seven months later . . . . In the interim, defendant’s trial
counsel declared a conflict of interest and was relieved as counsel
of record, new counsel was appointed to represent defendant, and
the matter was continued a number of times for trial on the state
prison priors and sentencing.” (Ibid.) Sentencing did not occur
until seven months after trial, defeating an inference that the
defendant was aware of the rights he had exercised at trial.
(Ibid.) There was no information whether any of his prior
convictions were guilty pleas in which he would have received
advisements of his trial rights. (Id. at p. 60.) Under those
circumstances, the court of appeal held the totality of the
circumstances did not demonstrate a knowing and intelligent
waiver of the defendant’s rights. (Id. at pp. 59-60.)

-- 14 of 23 --

15
In People v. Christian (2005) 125 Cal.App.4th 688, 691-692
(Christian), the defendant (who had five previous convictions of
serious felonies) pleaded no contest to robbery and admitted one
prior strike conviction and two prior serious felony convictions,
for a total prison term of 20 years. Before the defendant accepted
the plea and admission, the trial court stated the district
attorney would apprise the defendant of his constitutional rights,
which applied not only to the robbery charge but also to the
allegations of a prior strike and two five-year priors. “All of the
rights in a jury trial apply to those also.” (Id. at p. 692.) The
prosecutor advised the defendant of his right to jury trial on both
the robbery and the priors, and explained that admitting to the
priors would mean in the future he would be treated as a third-
strike offender, with a minimum sentence of 25 years to life.
(Id. at pp. 692-693.) The trial court found he had expressly and
intelligently waived his rights and the plea and admission were
“freely and voluntarily made,” accepted the guilty plea and
admission, and imposed the 20-year sentence. (Id. at p. 693.)
On appeal, the defendant argued that because the court did
not advise him of his rights to confront witnesses and self-
incrimination, his plea to the substantive offense and the priors
was invalid. This division found the argument “persuasive.”
(Christian, supra, 125 Cal.App.4th at p. 693.) We pointed out
that the defendant had not just participated in a trial where he
might exercise his rights to confrontation and to remain silent;
instead, “he was forgoing a trial on the substantive charges as
well as on the prior allegations.” (Id. at p. 697.) The record
showed defendant had five prior convictions, but not whether
those convictions were reached by plea or trial, so “we cannot
infer that he would have received advisements in his prior cases.”

-- 15 of 23 --

16
(Ibid.) His most recent prior conviction was nine years before the
present charges. (Ibid.) We therefore could not infer that his
prior experience in the justice system “demonstrated his present
knowledge and understanding of his rights.” (Id. at p. 698.)
Although the defendant consulted with counsel about the plea
offer, the substance of that conversation was not in the record.
(Ibid.) While nothing mandates that the trial judge be the one to
advise a defendant of his constitutional rights (Lloyd, supra, 236
Cal.App.4th at p. 57, fn. 6), without a record of any conversations
with counsel “we will not presume appellant was informed of his
. . . rights in appellant’s conversation with his counsel.”
(Christian, supra, 125 Cal.App.4th at p. 698.)
Similarly, this record does not affirmatively show that
Maradiaga’s waiver of his trial rights to confrontation and to
remain silent was voluntary and intelligent. Maradiaga waived
his right to jury trial while the jury was deliberating, but did not
waive his right to a court trial until six weeks later. We thus do
not have the assurance that he had just exercised his rights to
remain silent and to confront witnesses as in Mosby, supra, nor
that he would understand that those rights adhered in a court
trial as well as in a jury trial. Maradiaga’s criminal history in
the probation report showed a felony conviction for possession of
a controlled substance in 2008, a misdemeanor conviction for
possession of a dangerous weapon in 2010, a misdemeanor
conviction for marijuana possession in 2011, and the prior alleged
in this case, the felony conviction for assault with a deadly
weapon in 2012. Maradiaga’s criminal history is not so extensive
or so recent that we may presume he understood his
constitutional rights at the time of sentencing in this case.
Although Maradiaga repeatedly consulted with trial counsel

-- 16 of 23 --

17
before admitting his prior conviction, we lack any information
about the substance of those consultations and have no assurance
that counsel informed Maradiaga of the rights he was about to
waive.
We cannot conclude the record “affirmatively shows that
defendant’s admission of the prior conviction constituted a
knowing and voluntary waiver of his constitutional rights.”
(People v. Howard (1992) 1 Cal.4th 1132, 1179, italics added.)
Maradiaga thus is entitled to reversal of the portion of his
sentence based on the prior conviction allegation. On remand,
the trial court may proceed to try the prior conviction allegation
or accept an admission to the allegation, after securing an
adequate waiver of Maradiaga’s right to a court trial and his
other constitutional rights.
3. Zamora
Zamora argues insufficient evidence establishes that he
stabbed Michael M., or aided and abetted in the stabbing. He
also argues CALCRIM No. 331, an instruction on evaluating the
testimony of a person with a developmental disability, is
unconstitutional, and insufficient evidence supported giving the
instruction in this case. Finally, he argues the court abused its
discretion when it failed to strike his prior strike conviction.
a. Sufficient evidence supports Zamora’s conviction
Zamora argues no forensic evidence connected him to the
actual stabbing, the video made it difficult to see who wielded the
knife, Michael W.’s trial identification of him as the stabber was
unreliable, and Castaneda, not Zamora, had the knife when the
defendants were arrested. Again, to determine whether the
evidence is sufficient we view the evidence in the light most
favorable to the judgment, presuming the existence of every fact

-- 17 of 23 --

18
the jury could reasonably infer from the evidence. (Young, supra,
34 Cal.4th at p. 1175.) We resolve neither witness credibility
issues nor evidentiary conflicts: “Resolution of conflicts and
inconsistencies in the testimony is the exclusive province of the
trier of fact,” and unless it is “physically impossible or inherently
improbable, testimony of a single witness is sufficient to support
a conviction.” (Id. at p. 1181.)
Taking into account the testimony and the video evidence,
the evidence is sufficient to establish that Zamora stabbed
Michael W. Michael W. testified that Zamora was with
Castaneda and Maradiaga outside the market, and Zamora and
Castaneda went into the market with him after Castaneda
threatened to beat Michael W. unless he bought them beer.
Zamora was outside with Castaneda and Maradiaga when
Michael W. exited the market. The men surrounded Michael W.,
who testified that either Maradiaga or Zamora stabbed him and
that he saw the knife in Zamora’s hand. After viewing the video,
Michael W. testified that Zamora stabbed him. Zamora calls
Michael W.’s credibility “suspect” and points to inconsistencies in
his testimony, but we resolve credibility issues and conflicts in
testimony in favor of the judgment. Viewing the surveillance
video in the light most favorable to the judgment, we conclude it
is consistent with the jury’s conclusion that Zamora stabbed
Michael W.
b. CALCRIM No. 331 is not unconstitutional, and
substantial evidence supported the instruction
The trial court gave CALCRIM No. 331 to the jury:
“In evaluating the testimony of a person
with a developmental disability, consider all of
the factors surrounding that person’s

-- 18 of 23 --

19
testimony, including his level of cognitive
development.
“Even though a person with a
developmental disability may perform
differently as a witness because of his level of
cognitive development, that does not mean he
is any more or less credible than another
witness.
“You should not discount or distrust the
testimony of a person with a developmental
disability solely because he has such a
disability.”
None of the three defendants objected to the instruction.
Section 1127g requires: “In any criminal trial or
proceeding in which a person with a developmental disability, or
cognitive, mental, or communication impairment testifies as a
witness, upon the request of a party, the court shall instruct the
jury” with language substantially identical to CALCRIM No. 331
as given to the jury in this case. In People v. Catley (2007) 148
Cal.App.4th 500, 508 (Catley), the court of appeal noted that
CALCRIM No. 331 “tracks the language of section 1127g,” and,
like the instruction advising a jury on the testimony of a child,
“ ‘provides sound and rational guidance to the jury in assessing
the credibility of a class of witnesses as to whom “ ‘traditional
assumptions’ ” may previously have biased the factfinding
process.’ ” (Catley, at p. 508.) The statutory history describes the
legislative intent of section 1127g as “ ‘protecting the rights of
developmentally disabled persons and other dependent persons
who are witnesses in criminal cases and ensuring that they are
given equal access to the criminal justice system,’ ” and the use of

-- 19 of 23 --

20
the instruction does not violate a defendant’s right to due process.
(Catley, at p. 508; People v. Keeper (2011) 192 Cal.App.4th 511,
520.) The use of the instruction does not “ ‘ “unduly inflate” ’ ”
the testimony of the witness. (Catley, at p. 507.) Instead, the
instruction corrects a bias: “ ‘Obviously a criminal defendant is
entitled to fairness, but just as obviously he or she cannot
complain of an instruction the necessary effect of which is to
increase the likelihood of a fair result. There was no denial of
due process.’ ” (Ibid.) We agree the instruction is not
unconstitutional.
Zamora also argues the evidence was insufficient to show
that Michael W. met the legislative description of “dependent
person.” (Catley, supra, 148 Cal.App.4th at p. 508.) We disagree.
“The Legislature defined a dependent person as ‘any person who
has a physical or mental impairment that substantially restricts
his or her ability to carry out normal activities or to protect his or
her rights, including, but not limited to, persons who have
physical or developmental disabilities or whose physical or
mental abilities have significantly diminished because of age.’ ”
(Ibid.) The prosecutor and all three defendants argued at trial
that Michael W. was developmentally disabled. The prosecutor’s
opening statement began: “. . . Michael [W.], the victim in this
case―he’s developmentally disabled. . . .” In closing, the
prosecutor asked the jury to take into account Michael W.’s
developmental disability when considering how he described the
events surrounding his stabbing. Zamora’s own counsel
described Michael W. as “gifted,” a “fragile witness-victim”
speaking with childlike innocence and not knowing how to lie or
manipulate. Maradiaga’s counsel stated Michael W. was
“developmentally delayed,” and Castaneda’s counsel stated

-- 20 of 23 --

21
Michael W. was “disabled.” At Maradiaga’s sentencing, the trial
court stated: “[W]hat the three defendants did to [Michael W.],
given his disability, was the equivalent . . . of what we might
otherwise call a hate crime,” and took advantage of Michael W.
The definition of “dependent person” includes anyone with
“ ‘a physical or mental impairment’ ” which “ ‘substantially
restricts his or her ability to carry out normal activities or to
protect his or her rights, including . . . persons who have . . .
developmental disabilities.’ ” (Catley, supra, 148 Cal.App.4th at
p. 508, italics added.) As a developmentally disabled person
whose disability restricted his ability to protect his rights,
Michael W. was included in the legislature’s definition.
c. The trial court did not abuse its discretion in
declining to strike Zamora’s prior strike conviction
The information alleged that in 1988, Zamora was
convicted of voluntary manslaughter (§ 192, subd. (a)), within the
meaning of the Three Strikes law (§§ 667, subds. (b)-(j), 1170.12).
Before trial, Zamora filed a motion to dismiss the prior strike
conviction under section 1385 and People v. Superior Court
(Romero) (1996) 13 Cal.4th 497. Zamora argued the 1988
conviction for manslaughter was “remote,” and he was remorseful
after the current crimes. At a hearing on the motion, the court
noted that Zamora had a racketeering and firearm case in Texas
10 years after his 1988 manslaughter conviction, a probation
violation in 2007 for which he was ordered to drug rehabilitation,
and a possession of drug paraphernalia case in 2015. Zamora
continued to engage in criminal activity, and at age 48 was a risk
to public safety. Nothing in Zamora’s “background, character,
and prospects” favored granting the motion. Counsel argued
Zamora had not had an opportunity to address his substance

-- 21 of 23 --

22
abuse. The court denied the motion: “[T]his is all on video. . . .
I do remember seeing evidence where the victim was ordered or
asked to go in and buy beer for these guys, and what he got for it
was basically a knife in the belly. So it’s―it’s a serious case, and
the three of them are lucky this person didn’t die.”
Zamora has the burden to show clearly that the ruling was
“irrational or arbitrary,” and if he does not make that showing,
we presume the trial court acted to achieve legitimate sentencing
objectives. (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
We see no irrationality or arbitrariness in the court’s denial of
the motion. The court considered the nature and circumstance of
Zamora’s current offense, felony assault with a deadly weapon;
his prior violent felony and his continued involvement in criminal
activity; and the particulars of his prospects (his remorse and his
need for substance abuse treatment), all of which had support in
the record. (People v. Williams (1998) 17 Cal.4th 148, 161.)
Zamora did not present to the trial court, and does not identify on
appeal, any reason why the denial of his motion to strike his prior
strike conviction was outside the bounds of reason. (People v.
Cluff (2001) 87 Cal.App.4th 991, 998.)
4. The criminal protective orders must be reversed
Castaneda, Maradiaga, and Zamora all challenge the
criminal protective orders, and respondent agrees the orders are
improper.
At the sentencing hearings, the trial court granted the
prosecution’s request for criminal protective orders restraining
Castaneda, Maradiaga, and Zamora from contact with Michael
W. for 10 years, without defense objection. The protective orders
were on a Judicial Council form stating the orders were under
section 136.2, subdivision (i)(1), which provides for restraining

-- 22 of 23 --

23
orders prohibiting contact with the victim “[i]n all cases in which
a criminal defendant has been convicted of a crime involving
domestic violence” or any crime requiring registration as a sex
offender. None of the appellants was convicted of a crime of
domestic violence or a crime requiring registration. The orders
thus are unauthorized sentences in excess of the court’s
jurisdiction, which may be challenged even without objection in
the trial court. (People v. Ponce (2009) 173 Cal.App.4th 378, 381-
382.) The protective orders must be stricken.
DISPOSITION
The criminal protective orders are stricken. Walter
Maradiaga’s sentence is vacated, and the matter is remanded for
a new court trial and resentencing on the prior conviction
allegation. In all other respects, the judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
DHANIDINA, J.

-- 23 of 23 --