People v. Castro CA5

Filed 4/22/16 P. v. Castro CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F069998 Plaintiff and Respondent, (Tulare Super. Ct. v. Case No. VCF027299-95)

SALVADOR CASTRO, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. Michael Cross, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Kane, Acting P.J., Peña, J. and Smith, J.

Appellant Salvador Castro appeals the denial of his petition to recall a sentence pursuant to Penal Code section 1170.126.1 Appellant claims that insufficient evidence exists in the record of conviction to support the trial court’s conclusion that appellant was armed with a firearm during the commission of his current offense. For the reasons set forth below, we affirm. FACTUAL AND PROCEDURAL BACKGROUND2 In 1997, appellant was convicted by a jury of being a felon in possession of a firearm (former § 12021, subd. (a)(1)), and subsequently found to have suffered two prior serious felony convictions. Appellant was sentenced to a term of 25 years to life, plus a one-year prior prison term enhancement. In his initial appeal, the following facts were recounted: “On January 31, 1995, there was a shoot-out at the intersection of Ben Maddox and Houston streets in Visalia. The shoot-out apparently occurred between rival gang members. A bystander, Kelly Scott, was killed by a stray bullet during the incident. The witnesses testified to various accounts, but all agreed that there was some kind of argument between two to three young men who were walking along the street and a number of men in a light colored car waiting for a light at the intersection. At some point the men began shooting at each other, although there was disagreement over who fired the first shot. “It was stipulated at trial that the appellant had been previously convicted of a felony. “Joe Mendoza, a witness to the shooting, testified that he saw two Hispanic young men on the street, one he later identified as Richard Alonzo, waiving [sic] a blue rag and