California Court of Appeal Jul 24, 2013 No. E054665Unpublished
Filed 7/24/13 P. v. Castillo CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E054665
v. (Super.Ct.No. RIF1102245)
EVA MARIE CASTILLO OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Eric G. Helgesen, Judge.
(Retired judge of the Tulare Mun. Ct. assigned by the Chief Justice pursuant to art. VI,
§ 6 of the Cal. Const.) Affirmed.
Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Lilia E. Garcia and Kristine
A. Gutierrez, Deputy Attorneys General, for the Plaintiff and Respondent.
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I. INTRODUCTION
A jury found defendant and appellant Eva Marie Castillo guilty of possession of
methamphetamine in violation of Health and Safety Code section 11377, subdivision (a)
not specified as such in either statute. However, both statutes also define serious or
violent felonies to include any felony in which the defendant inflicts great bodily injury
on a person other than an accomplice. (§§ 667.5, subd. (c)(8), 1192.7, subd. (c)(8).)
Thus, the crime of gross vehicular manslaughter while intoxicated will qualify as a
serious or violent felony—and a strike—if, in committing the crime, the defendant
inflicted great bodily injury on a person who was not an accomplice. (See People v.
Gonzales (1994) 29 Cal.App.4th 1684, 1694.)
Stated differently, if the only persons who suffered great bodily injury as a result
of defendant’s crime was an accomplice to the crime, the conviction for that crime does
not constitute a serious and violent felony for purposes of the Three Strikes law. If, for
example, the only victim of defendant’s vehicular manslaughter was a passenger in
defendant’s vehicle who aided and abetted defendant’s intoxication and encouraged her
to drive, the victim could, at least arguably, be an accomplice to defendant’s crime. (See
People v. Henley (1999) 72 Cal.App.4th 555, 561-562 [motorcycle passenger may have
been an accomplice to motorcyclist’s crime of evading police officer].)
In this case, the district attorney alleged that defendant had been convicted of the
crime of gross vehicular manslaughter, “a serious and violent felony . . . .” The district
attorney did not specifically allege the required qualification that, in the commission of
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the crime, defendant inflicted great bodily injury on a person who was not an accomplice.
Defendant admitted the allegation without seeking clarification of the allegation.
An analogous situation was presented in People v. Thomas (1986) 41 Cal.3d 837.
In that case, the information alleged that the defendant had been previously “‘convicted
of a serious felony, to wit: Burglary . . . within the meaning of sections 667 and 1192.7
. . . .’” (Id. at p. 841.) The defendant admitted the allegation. (Id. at pp. 841-842.)
However, not all burglaries qualified as serious felonies. At that time, burglary was a
serious felony only if it was a burglary of a residence, the defendant inflicted great bodily
injury on any person other than an accomplice, the defendant used a firearm, or the
defendant used a deadly weapon. (Id. at pp. 840, 843.) Instead of alleging merely the
conviction of a burglary as a serious felony, the court noted that the “better practice”
would be to allege the specific basis that made the burglary a serious felony. (Id. at p.
843.) The defendant could have demurred to the pleading for uncertainty on that basis
but, failing to do so, waived the defect. (Ibid.)
The Thomas court continued: “It is not the function of the information to state the
elements of an offense or enhancement. [Citations.] It is, instead, the role of counsel to
explain to his client the essentials of the charge. We recognize that in an occasional case
counsel may fail to do so, and a defendant may plead guilty or admit an enhancement
without having been informed of some critical matter, but that claim is best asserted by a
petition for a writ of habeas corpus.” (People v. Thomas, supra, 41 Cal.3d at pp. 843-
844.)
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On the record before it, the Thomas court applied the rule that a “plea of guilty
admits every element of the crime charged,” and stated that “this is no different from any
other case in which counsel explains to his client the basis of the charges, and the client,
in admitting the charges, knowingly admits each of the elements of that charge.” (People
v. Thomas, supra, 41 Cal.3d at p. 844 & fn. 6.) The court concluded that the defendant’s
admission that he had been previously convicted of burglary and that such burglary was a
serious felony within the meaning of the enhancement statutes was sufficient to establish
that allegation. (Id. at p. 845.) As our state Supreme Court explained more recently:
“Thomas establishes that a defendant’s admission of an alleged enhancement is valid
even if it does not include specific admissions of every factual element required to
establish the enhancement.” (People v. French (2008) 43 Cal.4th 36, 50.)
As suggested by Thomas, the “better practice” in this case may have been to allege
that the defendant had been convicted of gross vehicular manslaughter and, in the
commission of such crime, the defendant inflicted great bodily injury upon a person not
an accomplice to the crime, a serious and violent felony within the meaning of the Three
Strikes law. If the allegation was subject to demurrer for uncertainty, however, the defect
was waived. (See People v. Thomas, supra, 41 Cal.3d at p. 843.) By admitting the
allegation, the defendant admitted each element of the enhancement, including that the
prior crime was a serious felony for purposes of the Three Strikes law. (See id. at p. 845;
see also People v. Bowie (1992) 11 Cal.App.4th 1263, 1266 [“defendant’s guilty plea or
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admission of a sentence enhancement allegation is deemed to constitute a judicial
admission of every element of the offense charged . . . .”].)
Defendant contends we should apply a different rule—that a defendant is entitled
to withdraw a guilty plea when it was legally impossible he or she committed the crime.
(See, e.g., People v. Soriano (1992) 4 Cal.App.4th 781, 784.) In Soriano, for example,
the defendant pleaded guilty to violating section 115 by attempting “to file a ‘forged
instrument, to wit, a death certificate.’” (People v. Soriano, supra, at p. 783.) However,
a death certificate is not an “instrument” within the meaning of section 115. (People v.
Soriano, supra, at p. 783.) The Court of Appeal reversed the judgment, explaining:
“[W]hat we have here is a legal impossibility. [The defendant] could not have been
guilty of violating . . . section 115 by attempting to file a forged instrument because, as a
matter of law, the writing he was charged with and admitted forging, a death certificate,
is not an instrument within the meaning of section 115.” (Id. at p. 784.)
Similarly, if a defendant admits a sentence enhancement allegation that a prior
crime was a violent felony when, as a matter of law, the crime was not a violent felony,
the additional punishment cannot stand. (People v. Ibarra (1982) 134 Cal.App.3d 413,
425.) In Ibarra, the defendant admitted a sentence enhancement allegation that he had a
prior violent felony conviction for purposes of section 667.5, subdivision (a). (People v.
Ibarra, supra, at p. 416.) The prior conviction was for attempted murder. (Id. at p. 424.)
At that time, the crime of attempted murder was not a violent felony under section 667.5,
subdivision (a). (People v. Ibarra, supra, at p. 425.) In reversing the finding on the prior
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conviction, the Court of Appeal stated: “Just as the law grants relief to one who pleads
guilty where the statute under which he is convicted did not prohibit his conduct
[citations], so also must the law grant relief where there is an admission to an additional
punishment provision which is inapplicable to the admitted facts [citation]. In such a
case there is no legal basis for imposing the additional punishment.” (Ibid.)
Defendant contends that the rule in Ibarra applies here because she admitted the
strike prior allegation based upon her mistake or misapprehension that her prior crime
constituted a strike. The argument fails because, as explained above, the crime of
vehicular manslaughter can constitute a strike. Unlike the attempted murder conviction
in Ibarra, it is not legally impossible that her prior conviction was for a serious or violent
felony. Ibarra does not apply in this situation.
Defendant also relies on In re Crumpton (1973) 9 Cal.3d 463. That case is also
distinguishable. In Crumpton, the defendant pleaded guilty to the crime of kidnapping
for the purpose of robbery in violation of section 209. (In re Crumpton, supra, at p. 465.)
Our state Supreme Court held that the defendant’s plea was defective not because of the
allegations of the pleading, but because of facts adduced at the defendant’s preliminary
hearing. The court explained: “Once it is established on the basis of the preliminary
hearing testimony that no reasonable jury could have convicted [the defendant] of
kidnap[p]ing had he gone to trial, it follows that he should not be condemned to life
imprisonment simply because he pleaded guilty under a mistaken legal understanding of
the kidnap[p]ing statute.” (Id. at p. 468.)
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Crumpton would be applicable if, in the present case, the facts regarding the
underlying vehicular manslaughter conviction were sufficiently established such that no
reasonable jury could have found that the victim of defendant’s vehicular manslaughter
was not an accomplice. Here, however, no facts on the issue were ever adduced.
Defendant states that the prosecution provided a copy of defendant’s section 969,
subdivision (b) packet regarding the prior conviction, and that the packet does not show
the victim was not an accomplice. The prosecution was not, however, limited to that
packet to prove the allegation. Defendant’s suggestion that the prosecution would
produce no other evidence in support of the allegation is pure speculation.
Defendant asserts that the victim of her vehicular manslaughter was a passenger in
her vehicle who, like defendant, had been drinking alcohol, and might have been an
accomplice to her crime. She refers us to the unsworn statements by her attorney in her
written Romero motion and to statements in a probation report. In her Romero motion,
counsel represented that defendant “was the driver of a truck in which her best friend,
both of whom had been drinking alcohol, was a passenger, [defendant] lost control of the
vehicle, resulting in a crash in which her best friend was killed.” The probation report
states: “[Defendant] report[s] she lost control of her vehicle while under the influence of
alcohol. The vehicle plummeted down a cliff, killing her passenger, a close friend.”
These statements were never introduced as evidence on the issue of whether or not her
victim was an accomplice and do not come close to establishing that no reasonable jury
could find such fact, as Crumpton requires.
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For all the foregoing reasons, we reject defendant’s legal impossibility and
mistake of law arguments.
2. Ineffective Assistance of Counsel
In the alternative, defendant argues that the plea should be overturned because she
was denied the effective assistance of counsel. She contends she entered her plea as to
the strike prior allegation based on a mistaken understanding that the prior conviction
constituted a serious or violent felony under the Three Strikes law. She suggests that this
mistake was the result of acts or omissions of her trial attorney, and that but for the
ineffective assistance of her counsel, she would not have admitted the strike prior
allegation. We conclude that, based on our record, defendant has failed to satisfy her
burden of establishing ineffective assistance.
The two-part test announced in Strickland v. Washington (1984) 466 U.S. 668
applies to challenges to guilty pleas based on ineffective assistance of counsel (Hill v.
Lockhart (1985) 474 U.S. 52, 58). Under Strickland, the defendant has the burden of
establishing: (1) counsel’s performance was deficient, falling below an objective
standard of reasonableness under prevailing professional norms; and (2) the deficient
performance resulted in prejudice. (Strickland v. Washington, supra, at pp. 687-688.)
To prove that counsel’s performance was deficient, defendant must affirmatively
show counsel’s deficiency involved a crucial issue which cannot be explained on the
basis of any knowledgeable choice of tactics. (People v. Floyd (1970) 1 Cal.3d 694, 709,
disapproved on another point in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.)
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To establish prejudice, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at p.
694.) The defendant “must carry his burden of proving prejudice as a ‘demonstrable
reality,’ not simply speculation as to the effect of the errors or omissions of counsel.”
(People v. Williams (1988) 44 Cal.3d 883, 937.)
When the record on appeal sheds no light on why counsel acted or failed to act in
the manner challenged, the judgment will be affirmed unless counsel was asked for an
explanation and failed to provide one, or there simply could be no satisfactory
explanation. (People v. Ledesma (1987) 43 Cal.3d 171, 218.) The record does not
indicate that defense counsel was ever asked for an explanation as to any act or omission.
Defendant asserts there could be no satisfactory explanation for her counsel’s acts
or omissions. Initially, we note that defendant fails to specify what counsel did or did not
do to perform deficiently. She asserts that counsel was somehow deficient in advising
her with respect to her decision to admit the strike prior allegation. However, she does
not cite to any point in the record that indicates what advice, if any, she was given as to
the issues regarding the allegation. We are told only that defendant and her counsel had a
discussion in which they discussed going to trial on the allegation or admitting the
allegation. Based on our record, it is entirely possible that defendant’s counsel fully and
competently advised defendant regarding all issues pertaining to a trial on the allegation
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(including issues arising from the prosecution’s burden of proving that she inflicted great
bodily injury on someone who was not an accomplice), counseled her to go to trial on the
matter, and defendant simply decided to admit the allegation. A defendant may, of
course, admit an enhancement for a variety of reasons, including the defendant’s belief it
would be futile to dispute the allegation, “or simply because [s]he honestly knows the
allegation[] to be true.” (People v. Thomas, supra, 41 Cal.3d at p. 844.) In short,
because the record does not disclose the nature of counsel’s advice to defendant, we have
no basis for concluding the advice was deficient.
Even if defendant met the first Strickland prong of establishing counsel’s deficient
performance, she has made no showing that, but for counsel’s errors, there is a reasonable
probability that the result of the proceeding would have been different. (See Strickland v.
Washington, supra, 466 U.S. at p. 694.)
We therefore reject defendant’s ineffective assistance argument.
C. Trial Court’s Denial of Defendant’s Romero Motion
Prior to sentencing, defendant filed her Romero motion. At the hearing, the trial
court stated it “does not find that the defendant is someone that is outside the intended
scope of Three Strikes and doesn’t find any factors here which would go towards striking
a strike in the interest of justice.” Defendant contends the court’s ruling is an abuse of its
discretion. We disagree.
The “Three Strikes initiative, as well as the legislative act embodying its terms,
was intended to restrict courts’ discretion in sentencing repeat offenders.” (Romero,
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supra, 13 Cal.4th at p. 528.) The trial court’s discretion to strike a qualifying strike is
therefore guided by “established stringent standards” designed to preserve the legislative
intent behind the Three Strikes law. (People v. Carmony (2004) 33 Cal.4th 367, 377.)
“[T]he court . . . must consider whether, in light of the nature and circumstances of his
present felonies and prior serious and/or violent felony convictions, and the particulars of
his background, character, and prospects, the defendant may be deemed outside the
scheme’s spirit, in whole or in part, and hence should be treated as though he had not
previously been convicted of one or more serious and/or violent felonies.” (People v.
Williams (1998) 17 Cal.4th 148, 161.)
A court’s refusal to dismiss or strike a prior conviction allegation is reviewed for
an abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 374.) “In reviewing
for abuse of discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden
is on the party attacking the sentence to clearly show that the sentencing decision was
irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is
presumed to have acted to achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside on review.”’
[Citations.] Second, a ‘“decision will not be reversed merely because reasonable people
might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting
its judgment for the judgment of the trial judge.’”’” (Id. at pp. 376-377.)
Here, the record reveals that defendant was convicted of gross vehicular
manslaughter while intoxicated in 1998, when she was 25 years old. She was paroled in
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2001, and violated that parole the following year. Between December 2006 and July
2010, she was convicted of numerous counts involving transporting and possessing drugs
for sale and receiving stolen property. In April 2011, just prior to her arrest in this case,
she was convicted of theft, burglary, receiving stolen property, and possession of drugs.
This record of criminal convictions reveals that defendant “‘had been taught,
through the application of formal sanction, that [such] criminal conduct was
unacceptable—but had failed or refused to learn [her] lesson.’ [Citation.]” (People v.
Williams, supra, 17 Cal.4th at p. 163.) This failure is evident in defendant’s comments to
the probation officer in this case that drugs “were available so I got them. . . . I wasn’t
thinking about consequences.” She added that she was uncertain whether she would re-
offend if she was offered drugs while incarcerated.
The probation officer reported that defendant “has spent a significant portion of
her life on probation, parole, in jail, or in prison for unlawful behavior and should have
been well-versed in both institutional policies and consequences. Despite this, she
ignored the law and continued in her criminal activities, committing an unlawful act even
while serving time in jail pending sentencing on separate matters. . . . Furthermore, the
defendant expressed no penitence or interest in living a sober and lawful life, leading this
officer to believe she has no intention of discontinuing her self[-]destructive habits which
threaten not only her own well being, but the well being of others.” The probation officer
added: “The defendant appears to be a habitual criminal addicted to controlled
substances. It appears her extensive criminal history has not only included drug-related
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crimes, but several theft-related charges. When considering the defendant’s prior
criminal record, the nature of the instant matter, and admissions of drug and alcohol
addiction, it appears she has no intentions of living a law abiding life while incarcerated
or in the community. If allowed into the community, it is believed the defendant will
commit more criminal acts and continue to abuse controlled substances.”
In light of defendant’s lengthy criminal record and the probation officer’s report,
the trial court did not abuse its discretion by refusing to strike the prior serious felony
conviction allegation.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING J.
We concur:
RICHLI Acting P. J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that while the trial court erred in admitting evidence of a prior uncharged incident involving stolen sausage, the error was harmless given the strong evidence of guilt. The court further affirmed the defendant's admission of a strike prior and the denial of her Romero motion.
Issues
Did the trial court err in admitting evidence of two prior uncharged acts under Evidence Code section 1101, subdivision (b)?
Should the defendant be permitted to withdraw her plea admitting a strike prior allegation due to mistake or ineffective assistance of counsel?
Did the trial court abuse its discretion in denying the defendant's Romero motion to dismiss the strike prior allegation?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“We agree with defendant that the trial court erred by allowing evidence of one prior incident, but did not err in allowing evidence of a second incident. We conclude, however, that the error as to the evidence of the first incident was harmless.”
“We reject defendant’s arguments challenging her admission of the strike prior allegation. Finally, the court did not abuse its discretion in denying defendant’s Romero motion.”