People v. Castro CA4/3

Filed 6/20/23 P. v. Castro CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent, G061348

v. (Super. Ct. No. 00NF1636)

FIDEL ERNESTO CASTRO, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Michael A. Leversen, Judge. Affirmed. Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. * * *

1 This is another of the burgeoning number of Wende filings occasioned by recent legislative changes that are, not surprisingly, confusing to people who have not received a legal education. Appellant Fidel Castro’s attorney has been unable to find an issue to argue on behalf of his client, who misunderstood the change in the law. We have reviewed the record and agree there is no arguable issue. In 2019, in an attempt to make California law regarding murder more reflective of actual culpability, our Legislature effectively renounced the theories of “felony murder” and “reasonable and probable consequences liability” for murder and attempted murder. First, the Legislature eliminated the natural and probable consequences theory for that crime by providing that “[m]alice shall not be imputed to a person based solely on his or her participation in a crime.” (Pen. Code, § 188, subd. (a)(3) 2.) Second, it reined in the felony murder rule so that it can only be applied to nonkillers if they aided and abetted the killer in committing first degree murder, or they were a major participant in the underlying felony and acted recklessly indifferent to human life. (§ 189, subd. (e).) It provided that people previously convicted could petition to have their cases reviewed and relief granted if either of those theories was employed against them and the facts of their case would not support a murder or attempted murder conviction without resort to those theories. In 2007, appellant was convicted by a jury of premeditated attempted murder, shooting at an occupied motor vehicle, dissuading a witness, brandishing a firearm, and street terrorism. It was found to be true that he had personally used and discharged a firearm in connection with the attempted murder count. He was sentenced to 38 years, 4 months to life in prison. The convictions were affirmed on appeal, although the sentence enhancement for use of a firearm enhancement was stricken