P. v. Castro

Filed 4/22/21 P. v. Castro CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
CARLOS CASTRO,
Defendant and Appellant.
B303372
(Los Angeles County
Super. Ct. No. A375846)
APPEAL from an order of the Superior Court of
Los Angeles County. Drew E. Edwards, Judge. Reversed and
remanded.
Orrick, Herrington & Sutcliffe, James E. Thompson,
Lauren M. Kessler, Adrienne Knecht Tierney and Sarah Kate
Mullins for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Nicholas J. Webster,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________

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Thirty-seven years ago, appellant Carlos Castro was
charged along with three other men in the robbery-murder of
Arturo Hernandez-Guerrero. In 1983, he pled guilty to second
degree murder. In 2019, he filed a petition to vacate that
conviction pursuant to Penal Code1 section 1170.95. The trial
court found appellant made a prima facie case that he was
entitled to relief, issued an order to show cause, and then,
following a hearing which the court limited solely to argument by
the prosecutor and defense counsel, denied the petition. The trial
court found the record of conviction established appellant was a
major participant in the robbery of the victim and knowingly
engaged in criminal activities which he knew carried a great risk
of death.
Defendant appeals from the trial court’s order denying his
petition, contending the People failed to offer any evidence at the
hearing on the order to show cause. Alternatively, defendant
contends 1) the trial court violated his due process rights by
limiting the evidentiary hearing to oral argument; 2) if the trial
court considered the documents submitted as part of the initial
pleading process the trial court erred because key documents
contained unreliable and inadmissible hearsay; and 3) even if all
the evidence was properly admitted, it is insufficient to prove
beyond a reasonable doubt that he was a major participant in the
robbery who acted with reckless indifference to human life.
1 Further undesignated statutory references are to the Penal
Code.

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3
After briefing was complete in this matter, respondent filed
a letter brief alerting us to the newly decided case of People v.
Lopez (2020) 56 Cal.App.5th 936 (Lopez),2 which respondent
explains “is relevant to the instant case, as it discusses the
standard for eligibility under Penal Code section 1170.95,
subdivision (d)(3).” Several of defendant’s claims relate to the
standard for proving eligibility for resentencing at the
evidentiary hearing held pursuant to subdivisions (d)(3). We
agree with the reasoning of Lopez, and remand this matter for a
new hearing at which the trial court must act as an independent
fact-finder to determine whether the prosecutor has established
beyond a reasonable doubt that, under current law, defendant
was a major participant in the robbery who acted with reckless
disregard for human life.
BACKGROUND
The Legislature passed Senate Bill No. 1437 in 2018 to
“amend the felony murder rule and the natural and probable
consequences doctrine, . . . to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with
the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human
life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill No. 1437
amended section 188 to require that a principal “shall act with
malice aforethought. Malice shall not be imputed to a person
based solely on his or her participation in a crime.” (§ 188, subd.
(a)(3).)
2 The California Supreme Court granted review in Lopez on
February 10, 2021, S265974.

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4
The record in this case does not contain the complaint filed
against defendant or a transcript of his plea. As we discuss in
more detail below, the trial court stated that it was deciding
defendant’s petition on the basis of the record of conviction. It is
not entirely clear what the trial court believed was included in
the record of conviction as the trial court never named the
specific evidence upon which it relied. However, the trial court’s
memorandum of decision suggests it considered at least the
preliminary hearing transcript and defendant’s pre-plea
probation report. Accordingly, we set forth the facts as shown in
those two documents.
Testimony at the preliminary hearing in this matter
showed that the victim was shot and stabbed in the foyer of an
apartment building on 9th Street in downtown Los Angeles. Two
witnesses living nearby heard gunshots and looked out their
windows to see either two or three men getting into a light
colored sedan which was in front of the building with its engine
running. The car drove away. One of the witnesses, Benadino
Diaz, testified that one of the men was carrying a rifle and
another man had something shiny in his hand. Diaz also
testified that the car did not have a rear license plate.
Los Angeles Police Department Officer William Cymbalsky
was on patrol with a partner in Hollywood when he noticed a
brown four-door Chevette with no rear license plate. His partner
pulled in the lane behind the car, and the officers noticed that the
Chevette was lane straddling. Believing that the car might be
stolen or its driver under the influence of alcohol, the officers
activated their overhead lights. The Chevette sped away and the
officers pursued. After the Chevette made a right turn, Officer

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Cymbalsky observed a rifle protruding from the left rear door,
and someone in the car began firing the rifle at the officers.
As the pursuit continued, the rifle and a bandana, which
appeared to contain objects, was thrown out of the car. At some
point, the patrol car “t-boned” the Chevette. Defendant Frank
Owen remained in the driver’s seat and defendant Luis Gomez in
the left rear passenger seat. The right front and right rear
passengers exited the car and fled. The rear passenger,
defendant Robert Ramos was caught almost immediately.
Appellant, who was identified by Officer Cymbalsky as the front
seat passenger, was later located by a K-9 unit.
The bandana was retrieved and found to contain three
knives. The rifle, a .22 with a sawed-off barrel, was also
recovered. The victim’s wallet was found on the front seat of the
Chevette.
Further details of the events surrounding the crimes are
contained in defendant’s pre-plea probation report.3 The
3 We quote this probation report with some reluctance.
Although a probation report is an official record and presumed
reliable, we note that there are some problematic aspects to the
unauthenticated copy of the report offered by the prosecutor. On
the page following page 8 of the report, in the middle of a
sentence summarizing appellant’s oral statement to the
probation officer, the font of the report abruptly changes, and the
lines of text in the new font are at a slight diagonal to the earlier
text and are not lined up with the line numbers on the left-hand
side of the page. Although the preceding pages are clearly
numbered in the lower left hand side of the page, the page with
the font change is not numbered, nor are the subsequent pages in
the report (which are also in the new, changed font). The font-
changing page ends with the non-sequitur: “His girl friend
visits”. At a minimum, this raises a question about whether this

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probation officer summarized defendant’s oral statement to her
as follows: Defendant was in the Aliso Village neighborhood
drinking with Ramos and Gomez when Owen came by in his car.
“Gomez suggested that they go cruising to Hollywood. He does
not know who got the gun and had it when they got in the car.
He sat in the front with Owen. He and all the others have knives
because it is ‘dangerous’ to be on the street. They drove looking
for a store to buy beer when Gomez said ‘Stop’. They saw a man
walking. Gomez and Ramos got out of the car. Gomez had the
gun, although he is not sure since he was wearing a trench coat.
He did not know what they were going to do but then thought
they would probably rob the man. Defendant ‘wanted to see’ and
followed them. Ramos had the gun. Gomez had a knife and told
victim to give him his money. Victim had gone in a hallway.
Ramos opened the door and shot inside. Defendant heard the
victim yell. Gomez came out ‘real quick’. Owen came by in the
car. Gomez had victim’s wallet. Ramos had the gun. They all
‘took off.’ Defendant states that . . . he ‘didn’t do anything’, he
was ‘messed up’[.]”
Considerably more documentation was presented to the
court before it issued the order to show cause. In support of his
petition, defendant submitted a declaration and accompanying
letter from co-defendant Ramos in which Ramos stated he was
the shooter, he left the car without announcing his attentions,
and Castro reached him only after he had shot the victim. In its
opposition, the People attached three documents which were part
of the record of conviction: the preliminary hearing transcript,
is a draft version of the report or a final copy. We leave this
question to be resolved on remand if the People choose to offer
the report again.

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the autopsy report which was part of an exhibit offered at the
preliminary hearing, and an undated but apparent pre-plea
probation report for defendant. The People also attached five
additional documents (Exhibits 4 through 8), all of which appear
to be prepared by police personnel as part of their investigation of
the crimes in this matter.4 In reply, Castro submitted a
declaration giving his own account of events on the night of the
crime, properly authenticated pre-plea probation reports for
Ramos and co-defendant Owen, and a transcript of the 2015
parole hearing for co-defendant Gomez. Gomez testified at the
parole hearing that he was the person who stabbed the victim.
Other aspects of Gomez’s testimony were less helpful to
defendant, as the People later highlighted at the subdivision
(d)(3) hearing.
On August 14, 2019, after briefing on the initial petition
was complete, the trial court issued an order to show cause why
defendant’s petition should not be granted, and indicated its
intent to hold a hearing pursuant to section 1170.95,
subdivision (d)(1). The hearing was held on October 16, 2019.
The trial court began the hearing by asking the prosecutor
if he would like to be heard. When the prosecutor began making
a factual argument about the events in this matter, defense
counsel objected that “these facts are not in the record. The
documents—I believe most of the records that the District
Attorney is relying on here, are impermissible hearsay. They
4 The memorandum of points and authorities state that the
exhibits “attached hereto” are “true and correct” copies of the
documents. The record does not contain a declaration
authenticating the documents. There is nothing to indicate
Exhibits 4 through 8 were part of the court file in this matter.

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don’t have any reliability. This includes police reports and things
like that.” The court replied: “Your objection is noted for the
record. I am going to deem this to be argument. I have gone
through the pleadings. I will allow counsel to make his argument
regarding the issue.” The prosecutor then cited People v. Hall
(2019) 39 Cal.App.5th 831 in support of admissibility. The court
responded: “That is noted for the record. I would imagine I will
be looking at that case.” When it was defense counsel’s turn to
argue, he began by discussing the Hall case, contending that
under Hall and evidentiary rules in general, the prosecutor’s
documents would not be admissible.
At the end of argument, the court simply stated that it
would take the matter under submission and review the factual
arguments and the cases cited by both counsel. Defense counsel
stated: “One of the arguments I raised at the beginning is the
evidentiary issues. Here we made an objection to the District
Attorney’s office relying on certain evidentiary issues. We also
submitted declarations [and] a parole hearing transcript. I just
wanted to know, since those things have not come into evidence,
if I could put on the various witnesses live.” The court replied:
“Everything that counsel has submitted is part of the record for
these purposes. That is all coming in. That is part of the things I
will be considering in making my ruling.”
On October 24, 2019, the trial court denied defendant’s
petition without ruling on any evidentiary issues. In the
memorandum, the court referred to the “record of conviction” but
not to any evidence proffered by appellant.5
5 It is not clear whether the trial court viewed the police
documents as part of the record of conviction and so considered
them in ruling on the petition. There is nothing in the record on

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In denying the petition the trial court wrote a
memorandum of decision: “The record of conviction in this case
establishes that: 1) all of the participants including the
petitioner were involved in, and executed a plan to rob the victim
in this case; 2) the victim in this case was stabbed with a knife
and the petitioner was armed with a knife at the time of the
crime at issue in this case; 3) the petitioner was aware of the fact
that other participants in the crimes in this case were armed,
including the fact that at least one other participant who was
armed with a firearm; and 4) the petitioner fled the scene of the
crime, and additionally fled the getaway vehicle after being
approached by police officers. Unlike the defendants in [People v.
Banks] or [People v. Clark], the petitioner’s conduct in this case
demonstrated that he was not [simply] a planner or organizer of
the robbery at issue in this case, who had no role in the
immediate events leading up to the murder of the victim in this
case. To the contrary, the record of conviction in this case
established that the petitioner was a major participant in the
robbery of the victim in this case, and that he knowingly engaged
in criminal activities which he knew carried a grave risk of death.
[People v. Estrada] (1995) 11 Cal.4th 568.”
DISCUSSION
Appellant’s claims of error, as a whole, arise from the trial
court’s decision not to treat the hearing held after the order to
show cause as an evidentiary hearing. Rather, the trial court
limited the parties to arguing about the evidence proffered in
appeal to suggest that these documents were used in any prior
court proceedings or were ever seen by the court or defense
counsel in the original proceedings in this matter.

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their original briefing, completed before the trial court issued its
OSC. Ultimately, the trial court expressly based its denial of the
petition on the “record of conviction”, indicating that it did not
consider the evidence in the documents proffered by appellant in
his pre-OSC briefing.
I. The People May Stand on the Record of Conviction
We agree with appellant that the People were required to
establish beyond a reasonable doubt at the post-OSC evidentiary
hearing that appellant was a major participant in the robbery
and acted with reckless indifference to human life. (§ 1170.95,
subd. (d)(3); People v. Rodriguez (2020) 58 Cal.App.5th 227,
230-231, review granted Mar. 10, 2021, S266652 (Rodriguez).)
We do not agree that the People were required to introduce
any evidence at all at the evidentiary hearing. Subdivision (d)(3)
provides: “The prosecutor and the petitioner may rely on the
record of conviction or offer new or additional evidence to meet
their respective burdens.” (§ 1170.95, subd. (d)(3), italics added;
People v. Drayton (2020) 47 Cal.App.5th 965, 981.) Here, the
prosecutor properly relied on the record of conviction.6
6 The prosecutor clearly offered police investigative
documents to support its original opposition to the petition, but
did not argue they were part of the record of conviction. Police
reports “[do not] ordinarily form part of the record of conviction.”
(Draeger v. Reed (1999) 69 Cal.App.4th 1511, 1523.) There is no
reason to believe the trial court found the investigative reports in
this case to be an exception to that rule. None of the facts which
the court stated were established by the record of conviction are
found in the investigative reports alone, and none of the facts
found in the investigative reports alone are mentioned in the
memorandum of decision.

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To be clear, it is possible, if not likely, that mere reliance on
the record of conviction will not be sufficient to establish beyond a
reasonable doubt that the defendant was a major participant in
the underlying felony who acted with reckless indifference to
human life. That is an issue for the trial court to decide in light
of all the evidence introduced at a post-OSC evidentiary hearing.
II. The Defense is Entitled to Offer New and Additional
Evidence and to Challenge the People’s Evidence
We agree with appellant that he had at least a statutory
right to offer new and/or additional evidence at the subdivision
(d)(3) hearing, and to have the trial court consider that evidence.
(§ 1170.95, subd. (d)(3); People v. Anthony (2019) 32 Cal.App.5th
1102, 1153.) We agree that a defendant is not limited to
presenting only the (new and additional) evidence which has been
presented in pre-OSC briefing, which is what appears to have
happened here. A defendant is entitled to present live witness
testimony, documentary evidence, and reliable hearsay. (People
v. Williams (2020) 57 Cal.App.5th 652, 661 (rev. den. Feb. 20,
2021) [The “rules of evidence governing a section 1170.95
subdivision (d)(3) hearing should be no different than those
applied at other analogous postconviction resentencing
proceedings.”].) However, the trial court’s limitation had no
practical import, as the court’s memorandum of decision indicates
the trial court, in any event, did not consider the pre-OSC
evidence at all.
III. The Trial Court’s Did Not Act as Independent Fact-Finder
at the Evidentiary Hearing
The trial court offered no explanation for its decision to
limit the parties to oral argument on the evidence submitted in

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their pre-OSC briefing, or its subsequent failure to rule on the
hearsay objections which it took under submission, or its refusal
to consider the new and additional evidence concerning which it
entertained oral argument. The memorandum of decision
indicates the court did not understand that it was required to act
as an independent factfinder and determine whether the
prosecution had established beyond a reasonable doubt that
petitioner was guilty of murder under the law as of January 1,
2019.
At the time the trial court decided this matter, there were
no published opinions addressing the analysis to be undertaken
by a trial court in connection with a section 1170.95, subdivision
(d)(3) evidentiary hearing. The parties offered different
perspectives on that standard. The People argued for the trial
court to treat the petition as it would a section 1118.1 motion,
that is, to undertake a substantial evidence review. The
prosecutor stated: “In other words, if the People can prove that
the petitioner could be convicted of first or second degree murder,
that makes them ineligible and, therefore, the petition should be
denied. [¶] I looked at this similar to [a section] 1118 motion in
the People’s case in chief. If the court finds there is insufficient
evidence for a conviction in this case, at that point the court
basically pulls the rug on the case, dismisses the charge or the
entire case, and the jury never gets to hear the evidence. I
equated this similar to [a section] 1118.1 motion when it comes to
the analysis.” (Italics added.) A section 1118 motion is analyzed
using a standard similar to “the standard employed in reviewing
the sufficiency of the evidence to support a conviction.” (See
People v. Houston (2012) 54 Cal.4th 1186, 1215.)

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In his closing argument, the prosecutor stated: “At a
minimum, Your Honor, the evidence in this case shows that he is
a major participant and acted with reckless indifference. [¶]
Again, from the People’s perspective, it is not whether or not—
the question is could he be convicted of first or second degree
murder under current law? I think based on the evidence that
has been presented to this court, he certainly could be convicted
of first degree felony murder, robbery being the felony.”
In written briefing, defense counsel contended: “To
disqualify Mr. Castro from resentencing under the ‘major
participant’ theory, the People must prove, beyond a reasonable
doubt, both that Mr. Castro acted as a major participant in the
robbery, and that he acted with reckless indifference to human
life. They do neither.” At oral argument, defense counsel
repeatedly reminded the court that the People had the burden of
proof.
Since the evidentiary hearing, we now have the benefit of
various appellate opinions setting out the duties of the trial court
after a section 1170.95, subdivision (d)(3) hearing. In People v.
Duke (2020) 55 Cal.App.5th 113, review granted January 13,
2021, S265309, Division One of this District stated the
prosecution need only prove “that the defendant could still have
been convicted of murder under the new law—in other words,
that a reasonable jury could find the defendant guilty of murder
with the requisite mental state for that degree of murder [under
current law]. This is essentially identical to the substantial
evidence standard, in which the reviewing court asks ‘ “whether,
on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt . . . .” ’ ” (Id. at
p. 123.)

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A different duty is dictated by Lopez, which held the plain
language of section 1170.95 requires “the prosecutor to prove
beyond a reasonable doubt each element of first or second degree
murder under current law in order to establish ineligibility . . . .”
(Lopez, supra. 56 Cal.App.5th at p. 942, rev. granted.) The court
explained the substantial evidence standard is applied “by an
appellate court on appeal of a judgment of conviction. It is not a
standard of proof to be employed by a fact finder.” (Id. at p. 950.)
Rodriguez reached the same conclusion. The court
explained that the legislative goal of section 1170.95 is “best
effectuated by resentencing . . . if the evidence, whether from the
record of conviction alone or with new and additional evidence
introduced at the subdivision (d)(3) hearing, fails to establish
beyond a reasonable doubt [petitioners], in fact, acted during the
crime with the now-required mental state. To deny resentencing
simply because a jury could have found that they may have acted
with express malice would frustrate the legislation’s purpose.”
(Rodriguez, supra, 58 Cal.App.5th at p. 240, rev. granted.) The
court further noted that “beyond a reasonable doubt” is the
standard of proof considered by the independent factfinder in a
criminal trial. (Id. at p. 242)
The Rodriguez court also noted that, just two months
before the introduction of Senate Bill No. 1437, the California
Supreme Court held a prosecutor must prove beyond a
reasonable doubt a petitioner is ineligible for resentencing under
Proposition 36, the Three Strikes Reform Act of 2012. (See
People v. Frierson (2017) 4 Cal.5th 225, 236.) In light of this
context, the Rodriguez court found it unlikely the Legislature
would have used “beyond a reasonable doubt” language in Senate
Bill No. 1437 had it “intended only an appellate-type review of

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the sufficiency of the evidence of the petitioner’s guilt on a
still-viable theory, rather than requiring the prosecutor to
actually establish the petitioner’s guilt under the newly amended
statutes.” (Rodriguez, supra, 58 Cal.App.5th at p. 242, rev.
granted.)
We find the reasoning in Lopez and Rodriguez persuasive
and agree with their conclusions that a trial court must act as an
independent factfinder and determine whether the prosecution
has established beyond a reasonable doubt the petitioner is guilty
of murder under the law as of January 1, 2019. Our conclusion is
also consistent with the Supreme Court's recent decision in
People v. Gentile (2020) 10 Cal.5th 830, in which the high court
explained “section 1170.95 requires the superior court to
determine on an individualized basis, after considering any new
or additional evidence offered by the parties, whether the
defendant is entitled to relief.” (Id. at p. 855.)
The trial court never expressly discussed its role in
evaluating the petition following a subdivision (d)(3) hearing. In
its memorandum of decision denying the petition, as set out
above, the court simply summarized the facts it gleaned from the
record of conviction and then concluded: “[T]he record of
conviction in this case established that the petitioner was a major
participant in the robbery of the victim in this case, and that he
knowingly engaged in criminal activities which he knew carried a
grave risk of death.”
The trial court’s statement is ambiguous, but suggests it
did not act as an independent fact-finder to determine whether
the People had established beyond a reasonable doubt that
defendant was a major participant in the robbery who acted with
reckless disregard for human life. The trial court twice states

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that it is relying on the record of conviction, and twice uses the
verb “establish” without the modifier “beyond a reasonable
doubt.” The court does not appear to have looked beyond the
record of conviction to consider any of the new or additional
evidence offered by the defense as it would have done if it were
ruling as an independent fact-finder.7 The court’s narrow
reference to the record of conviction suggests that the court
adopted the prosecutor’s argument that the petition should be
treated like a section 1118.1 motion, and that the petition should
be denied if the prosecutor’s evidence “could” result in a murder
conviction under current law.
Because, as we have just explained, the trial court did not
clearly act as an independent fact-finder and did not afford
appellant the opportunity to present new and/or additional
evidence or to obtain rulings on its challenges to the evidence
that was presented, we remand this matter to the court to
conduct a new section 1170.95, subdivision (d)(3) hearing under
the standard set forth in this opinion. In light of this remand, we
need not and do not reach any remaining claims on appeal.
7 Without wading into issues which need not be decided on
this appeal, we note that appellant submitted a declaration
providing a substantially different account of the crimes than the
account attributed to him in the probation report. Appellant was
present in the courtroom and could have testified if the trial court
found his declaration to be inadmissible hearsay. Thus, the trial
court’s failure to look beyond the record of conviction cannot be
attributed to a lack of any evidence beyond that record.

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DISPOSITION
The trial court’s order denying defendant’s section 1170.95
petition is reversed and this matter is remanded for a new
hearing pursuant to subdivision (d)(3).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
BIGELOW, P. J.
GRIMES, J.

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