People v. Castellano
| Decision Date | 02 December 2020 |
| Docket Number | B296119 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. LINDA LIZETT CASTELLANO, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YA097909)
APPEAL from a judgment of the Superior Court of Los Angeles County, Laura C. Ellison and Victor L. Wright, Judges. Affirmed as modified.
Jason Szydlik, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
Linda Lizett Castellano appeals from the judgment of conviction entered after a jury found her guilty of one count of assault with a semiautomatic firearm. The jury also found true the allegations Castellano committed the crime for the benefit of a criminal street gang and used a firearm in the commission of the crime.
On appeal, Castellano contends there was not sufficient evidence the firearm was loaded to support her conviction. She also argues the trial court erred in failing sua sponte to instruct the jury on the lesser included offense of assault with a firearm. She further requests we remand for the trial court to conduct a hearing on her ability to pay the assessments and fines imposed by the trial court, in accordance with our opinion in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Finally, Castellano contends, the People concede, and we agree the minute order from the sentencing hearing reflects the imposition of a criminal protective order that was not part of the trial court's oral pronouncement of judgment and should be stricken.
We order the minute order modified to strike the reference to a criminal protective order and otherwise affirm.
About 6:45 a.m. on March 14, 2018 Ismael Munoz Rodriguez1 was standing on the sidewalk along Buford Avenue inthe Lennox area of Los Angeles County. Munoz, who lives on Buford Avenue, was preparing to cross the street to reach his parked car to go to work. As Munoz was about to cross the street, a four-door Nissan drove by, the rear window came down, and a woman in a hooded sweatshirt said something Munoz could not understand.
Munoz crossed the street, got into his car, and drove off. The Nissan then turned around and pulled up next to Munoz's car while he was stopped at a stop sign. The woman in the rear passenger seat of the Nissan, whom Munoz later identified as Castellano,2 raised her arm, pointed a gun at Munoz through the open window, and said, Munoz understood Castellano's statement was "gang talk," and he was frightened. Castellano was about six or seven feet from Munoz when she pointed the gun at him. Munoz testified he "wasn't going to stand [t]here and let her fire it," and after a few seconds, he drove off.
Munoz testified Castellano's gun Asked what he meant when he said the gun was a semiautomatic, Munoz testified, "It was the kind of gun that police use." When the prosecutor asked whether Munoz knew what a revolver was, Munoz responded, "Yes." Munoz agreed a revolver looked "[l]ike those cowboy guns." Munoz described Castellano's gun as flat, without a cylinder in the middle like a revolver.
Sandra Marroquin was a teacher at Felton Elementary School in the Lennox area of Los Angeles County. About 7:30 a.m. on March 14, 2018 Marroquin was walking toward the school's gate when she was approached by a woman who was trembling and nervous. The woman told Marroquin she had just seen some men get out of a car and "put[] a gun on this kid."3 The woman asked for Marroquin's cell phone number so she could send Marroquin a photograph she had taken of the men's car. The woman sent Marroquin the photograph, which Marroquin forwarded to the school principal and later showed it to the police. The woman told Marroquin the driver of the car was female.
Shortly after 6:45 a.m. on March 14, 2018 Los Angeles County Sheriff's Department (LASD) Deputy Erik Felix responded to a call regarding Munoz's assault. Deputy Felix took Munoz's statement and photographed the scene on Buford Avenue. About an hour later Deputy Felix was dispatched to Felton Elementary School, about half a mile away, where he interviewed Marroquin regarding the second incident. Marroquin showed Felix the photograph of the vehicle she had received from the unidentified woman. The vehicle was a NissanMaxima with a California license plate number that matched the license plate of the vehicle owned by Castellano.
Later that night or early the next morning, Sheriff's Deputy Alex Partida stopped a silver Nissan Maxima matching the description of the car involved in the Felton Elementary School incident. Castellano's sister Silvia was driving the car. The car was towed and held for evidence and fingerprinting. On March 22, Castellano called the LASD South Los Angeles station and stated she wanted her car released to her. When Castellano came into the station to retrieve her car, she was detained and searched. A sheriff's deputy recovered Castellano's cell phone during the search, and forensic detectives obtained photographs and text messages from the phone.
Detective David Chevez, a gang investigator for the LASD South Los Angeles area, testified as the People's gang expert. Detective Chevez testified with respect to Hispanic street gangs that upon initiation into a gang, the gang member operates as a "soldier." Once the soldier "put[s] in" work by committing crimes for the gang, he or she can move up to a higher status, and "the more violent the crimes you commit the higher status you're able to attain." Respect from fellow gang members and fear within the community are important to gangs and their members. Fear within the community allows gangs to operate because it discourages community members from reporting crimes out of fear of retaliation. Gang members put in the work by committing violent crimes like murder, attempted murder, and carjackings, but also lesser crimes such as tagging with graffiti. A gangmember's reputation for violence allows the member to commit more crimes because victims will not want to come forward.
Respect from rival gangs is also important, and it allows gangs to "protect their turf." Sometimes gang members will commit crimes in rival territory to show disrespect for the rival gang. Detective Chevez explained, "[W]hen a rival goes into enemy territory, it's usually to put in work to commit crimes, shoot people, rob people, tag, vandalize." Members may even "announce" these crimes by committing them in daylight in front of witnesses. Rival gang members deem such intrusions as a "big form of disrespect."
Detective Chevez was familiar with the Tepa 13 gang and had investigated crimes committed by its members, including felony possession of firearms, burglaries, robberies, carjackings, vehicle theft, assaults, attempted murders, and murders. Tepa 13 members sometimes use the shortened name "Tepa." Tepa 13 operates principally within the City of Inglewood.
The Lennox 13 gang is Tepa 13's biggest rival. Tepa 13 and Lennox 13 have had an ongoing feud since the 1970's, and rival members "shoot at each other all the time." Lennox 13's territory includes the Lennox area west of Hawthorne Boulevard—to the west of Tepa 13's territory. The attack on Munoz occurred "deep within Lennox 13 territory." Felton Elementary School is also within Lennox 13 territory.
Detective Chevez opined Castellano was an active member of Tepa 13 based on her tattoos and photographs recovered from her phone showing her posing with gang members with weapons displaying gang signs. Castellano was at the "soldier" level. Detective Chevez testified based on a hypothetical mirroring the facts of the case that the assault would have been committed tobenefit Tepa 13. Detective Chevez explained, Further, committing a crime in broad daylight increases the boldness of the crime and benefits the gang "because it gives the gang [a] very violent reputation." "[B]anging" on an individual in rival territory would also "show[] the rival gang, which is Lennox 13 in this case, 'Hey, this is your hood and we're going to come into your hood, and disrespect your hood, and we're not scared of you.'"
On cross-examination, Detective Chevez admitted that if a gang member "banged on" someone in rival territory who was not a member of the rival gang, the nonmember would typically be able to walk away without further violence. However, on redirect examination, Detective Chevez qualified his response and testified that if the encounter with the nonmember were to occur in rival gang territory and the non-member "were to just walk away, or put up some type of resistance[,] then something would happen."
Detective Chevez also testified he and most police officers carry a semiautomatic firearm, which is "the opposite of a revolver" and "is automatically fed [ammunition] with a magazine." This is in contrast to a revolver, which shoots about five or six shots and has a round cylinder.
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