Opinion
D070124
04-12-2017
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO CASTILLO, Defendant and Appellant.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS280318) APPEAL from a judgment of the Superior Court of San Diego County, Theodore M. Weathers, Judge. Affirmed. Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Armando Castillo of robbery (Pen. Code, § 211) and found that he personally used a dangerous or deadly weapon (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23).) Castillo contends: (1) insufficient evidence supports the robbery conviction; (2) the trial court erred in not including the portion of the aiding and abetting instruction explaining the significance of the defendant's mere presence at the scene of the crime (CALCRIM No. 401); and (3) the trial court erred in not instructing sua sponte on self-defense. Although we conclude there were instructional errors, they do not require reversal and we accordingly affirm the judgment.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of March 17, 2015, Castillo and another man, Fabian Casas, entered a store attached to a gas station. Castillo and Casas knew each other and sometimes spent time together. They both admitted to being alcoholics; Castillo was also a daily heroin user at the time.
A security camera at the store recorded the men as they entered, showing that they exchanged words with each other outside. Castillo walked to one door of the refrigerated cooler and selected two containers of malt liquor, which he brought to the cashier. Casas went to a different door of the cooler.
Castillo did not request, pursuant to California Rule of Court, rule 8.224, that the videos from the security cameras referred to during witnesses' testimony at trial be transmitted to this court as part of the appellate record. We therefore rely solely on the content of the witnesses' testimony for our understanding of what was depicted in the videos.
According to the cashier, as he was scanning the two containers Castillo asked him to wait for Casas, saying something like, "Wait. I'm waiting for him," while looking toward Casas. Casas then took two cases of Tecate beer from the cooler and walked out of the store with them. The security video shows Castillo putting his hand on his head as this happened, as if he was surprised.
The cashier asked Castillo whether he was going to pay for the beer that Casas took. Castillo said he was not going to pay. According to the cashier, Castillo was acting mad and nervous.
The cashier went to the door to see where Casas had gone. Not seeing Casas, he returned to Castillo and again asked if he was going to pay for the beer. Castillo again refused.
The cashier went again to the door with the intention of closing it and keeping Castillo inside the store until he could call the police. Castillo walked to the door, pushed the cashier's left shoulder and exited the store. According to the cashier, as Castillo pushed past him the cashier demanded that Castillo pay for the beer. Castillo then said something such as, "You want your money? Let's go." The cashier followed Castillo outside because he thought Castillo might be going to get money to pay for the beer.
According to the cashier, as he and Castillo reached the air and water machine in the gas station parking lot (which was not in view of the security cameras), he noticed that Casas had dropped some of the beer cans on the ground and was attempting to pick them up. The cashier told Castillo, "Give me my beer or give me my money, whatever you like." According to the cashier, Castillo then took a folding knife out of his pocket, opened it, pointed it at the cashier and waved it. The cashier backed away because he believed he was going to get stabbed. In doing so, he tripped and fell.
As Castillo approached him, the cashier picked up a beer can that was on the ground and threw it, but the can did not hit Castillo. Castillo then threw two beer cans at the cashier, but also missed. Meanwhile Casas had run off. The cashier yelled, "Cops, cops, cops," and Castillo walked away in the same direction as Casas.
The cashier called 911. When police arrived, they located three beer cans on the ground at the scene. The cashier eventually identified Castillo in a photographic lineup.
Both Castillo and Casas were charged with robbery (§ 211) and were tried together. As to Castillo, the information also alleged that he personally used a dangerous or deadly weapon (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)) and that he had two serious felony priors (§§ 667, subd. (a)(1), 668) and two prior strikes (§§ 667, subds. (b)-(i), 1170.12, 668).
At trial, Casas and Castillo both testified. According to Casas, he was hanging out in the park with Castillo's brother when he saw the brother give Castillo some money to buy alcohol. Wanting some alcohol for himself, he followed Castillo to the gas station. When Castillo reached the door to the gas station store, Casas called out to him to ask if he could borrow some money to buy a drink. Castillo refused. Casas became frustrated and decided to take beer from the store. As he was fleeing through the parking lot, one of the beer cases broke open. Casas was picking up the beer from the ground when he saw Castillo and the cashier coming toward him. Casas gathered up the beer and ran back toward the park, where he and his friends drank the beer. Casas denied telling Castillo he was going to steal beer from the store.
Castillo testified that he was visiting with his brother at the park when he offered to go get some beer. He walked to the gas station, but before he entered the store Casas called out to him and asked him for money to buy beer. Because he was involved in a dispute with Casas at the time, he refused. According to Castillo, he put his two malt liquor containers on the counter and was preparing to pay when he saw Casas walk out of the store with the beer. Castillo denied telling the cashier to wait for Casas. He put his hand on his head as shown in the video because he could not believe the situation that Casas had created by leaving with the beer.
Castillo recalled that the cashier repeatedly asked him to pay for the beer, and he kept refusing to do so. The situation made him mad and nervous. He walked out of the door as the cashier stated he was going to call the police. The cashier followed him into the parking lot, still insisting he pay for the beer. According to Castillo, he saw the beer cans on the ground and started picking them up to give to the cashier. Casas was not there. Castillo testified that while he was picking up the beer cans, the cashier hit him on the head with a beer can. Castillo stated, "When he hit me, I just reacted and I pulled a knife on him." Castillo admitted he got "mad" when the cashier hit him with the beer can and "just snapped." The cashier backed up and fell down. Castillo did not swing the knife at the cashier, charge at him, or try to stab him. He also claimed he did not throw any beer cans at the cashier. When the cashier yelled, "Cops, cops, cops," Castillo ran away.
During closing argument, the prosecutor asserted that Castillo was guilty of robbery as an aider and abettor because he pulled the knife to give Casas time to pick up the beers and leave.
The jury convicted both defendants of robbery (§ 211), and found that Castillo personally used a dangerous or deadly weapon (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)). Castillo admitted serious felony priors (§ 667, subd. (a)(1), 668) and two prior strikes (§§ 667, subds. (b)-(i), 1170.12, 668). At sentencing, the trial court struck one of Castillo's prior strikes and sentenced him to a prison term of 15 years.
DISCUSSION
A. Sufficiency of the Evidence
In considering a challenge to the sufficiency of the evidence, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 60.)
Section 211 defines robbery as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." Thus, as set forth in CALCRIM No. 1600, to find a defendant guilty of robbery, the jury must make the following findings: "1. The defendant took property that was not (his/her) own; [¶] 2. The property was in the possession of another person; [¶] 3. The property was taken from the other person or (his/her) immediate presence; [¶] 4. The property was taken against that person's will; [¶] 5. The defendant used force or fear to take the property or to prevent the person from resisting; [¶] AND [¶] 6. When the defendant used force or fear to take the property, (he/she) intended (to deprive the owner of it permanently/ [or] to remove it from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property)." (CALCRIM No. 1600.) Further, "[t]he defendant's intent to take the property must have been formed before or during the time (he/she) used force or fear. If the defendant did not form this required intent until after using the force or fear, then (he/she) did not commit robbery." (CALCRIM No. 1600.)
Castillo was prosecuted for robbery under the theory that he aided and abetted Casas in stealing the beer, using force or fear to do so. " 'A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.' " (People v. Hill (1998) 17 Cal.4th 800, 851.) Castillo asserts there was insufficient evidence to support the jury's determination that, knowing of Casas's purpose, he intentionally used force to facilitate the taking of the beer.
Castillo's argument focuses on the initial events when he and Casas entered the store. Castillo contends the evidence does not support a finding that before they entered the store, he and Casas agreed that Casas would take some beer while he (Castillo) distracted the cashier. Specifically, Castillo argues there is no evidence that he did anything to try to distract the cashier. To the contrary, he asserts, the evidence instead shows he drew attention toward Casas by telling the cashier to wait for Casas before he finished ringing up the sale. Further, Castillo points out that he is shown on the video looking surprised when Casas exits the store without paying for beer, and he also points out that the video shows him taking out his wallet to pay for the items he selected. Based on all of this evidence, Castillo contends it would be unreasonable for the jury to conclude that he knew Casas intended to take the beer without paying or that he helped Casas carry out that plan by distracting the cashier.
Castillo's argument is one way—but not the only way—to view the facts. We reject it because it asks this court to reweigh the evidence, which is not our function. The prosecutor relied heavily on various aspects of the video footage as being inconsistent with Castillo's and Casas's testimony that there was no plan to steal beer. It is a quintessential fact question for the jury to decide whether Castillo's interaction with the cashier was an intentional distraction or represented the reaction of a surprised customer.
Moreover, Castillo's later decision to pull out a knife is fully consistent with and supports the existence of a preexisting understanding between Castillo and Casas when they entered the store. On leaving the store, Castillo assumed Casas had already made good his escape. Surprised to find Casas still present with a broken box of beer attempting to retrieve some loose cans, Castillo may well have concluded that distraction would no longer suffice such that he resorted to force and fear. Again, this is a classic jury question.
Finally, Castillo's argument focuses on the initial portion of the incident, disregarding the evidence that clearly established he became aware of Casas's unlawful purpose when Casas ran from the store with the beer. Certainly the intent to aid and abet may be formed either "before or during the perpetrator's commission of the crime." (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1066, italics added.) Here, according to the testimony of the cashier, Casas had not yet reached a place of temporary safety when Castillo helped him get away with the beer by pulling a knife on the cashier. (See People v. Montoya (1994) 7 Cal.4th 1027, 1041.)
In his appellate argument, Castillo repeatedly refers to the version of events as described in his own testimony, such as his claim that he was picking up the beer cans to give them back to the cashier when the cashier hit him on the head with a beer can. The jury was entitled to credit the cashier's testimony over that of Castillo and, in determining whether substantial evidence supports the verdict, the testimony of a single witness is generally sufficient. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Accordingly, substantial evidence supports the jury's determination that Castillo intentionally used force and fear to aid and abet the wrongful taking of the beer by Casas. B. Instructional Error: Aider and Abettor Liability
The trial court instructed the jury on aider and abettor liability pursuant to CALCRIM No. 401:
"To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that:
"1. The perpetrator committed the crime;A bracketed portion at the end of the instruction was omitted: "If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him or her an aider and abettor." (CALCRIM No. 401.) With respect to this bracketed language, the bench notes indicate that "[i]f there is evidence that the defendant was merely present at the scene or only had knowledge that a crime was being committed, the court has a sua sponte duty to give the bracketed paragraph that begins with 'If you conclude that defendant was present.' "
"2. The defendant knew that the perpetrator intended to commit the crime;
"3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime;
"AND
"4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime.
"Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime.
"If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor."
Castillo contends this additional language was required because "the evidence . . . supported a conclusion that [Castillo] was merely present and failed to act when he saw Casas stealing beer from the [gas] station." We agree. The prosecution's primary theory was that Castillo entered the store with knowledge that Casas intended to steal some beer. As to this theory, there was substantial contrary evidence, based on the testimony of both Castillo and Casas, that Castillo was "merely present" and did not intentionally assist Casas. Even as to the later brandishing of the knife, the evidence would support an interpretation that Castillo's use of the weapon was for a purpose independent of assisting Casas. The evidence was thus sufficient to warrant sua sponte inclusion of the additional language.
The error, however, does not require reversal. "In determining whether the failure to instruct requires reversal, '[w]e apply the normal standard of review for state law error: whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given.' " (People v. McKinnon (2011) 52 Cal.4th 610, 679; see also People v. Northrop (1982) 132 Cal.App.3d 1027, 1041 [applying standard for state law error in determining whether the failure to give a "mere presence" instruction in an aiding and abetting prosecution was prejudicial].) "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction," and " '[t]he absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.' " (People v. Burgener (1986) 41 Cal.3d 505, 538-539.)
Here, in CALCRIM No. 401 the jury was instructed on all the required elements of aiding and abetting liability, including the requirement that defendant "knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime" (CALCRIM No. 401). It is presumed that the jury understood and followed the instructions. (People v. Butler (2009) 46 Cal.4th 847, 873.) In following the instructions given by the trial court, the jury could not have convicted Castillo based on his mere presence or mere failure to prevent the crime, as it would not have found that Castillo specifically intended to aid in Casas's commission of the crime. Thus, it was not prejudicial for the trial court to omit the bracketed portion of CALCRIM No. 401.
Further, as the People point out, the omitted portion of CALCRIM No. 401 also included language that would tend to make it more likely, rather than less, that the jury would find Castillo guilty under an aiding and abetting theory. Specifically, the first sentence of the omitted portion of the instruction informs the jury that it may consider the fact that the "defendant was present at the scene of the crime or failed to prevent the crime" in determining whether the defendant was an aider and abettor. Because Castillo was present at the scene of the crime and did fail to prevent it, the first sentence of the omitted portion of the instruction was more favorable to the People than to Castillo.
In sum, under the circumstances it is not reasonably probable that Castillo would have achieved a more favorable outcome at trial had the jury been instructed with the bracketed portion of CALCRIM No. 401. C. Instructional Error: Self-defense
Castillo's final argument is that the trial court prejudicially erred in failing to give a sua sponte instruction on the doctrine of self-defense. The trial court's duty to instruct sua sponte on defenses was explained in People v. Breverman (1998) 19 Cal.4th 142 (Breverman): "In the case of defenses, . . . a sua sponte instructional duty arises 'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' " (Id. at p. 157, quoting People v. Sedeno (1974) 10 Cal.3d 703, 716 (Sedeno), italics added by Breverman.) The Supreme Court in Breverman thus directed that "when the trial court believes 'there is substantial evidence that would support a defense inconsistent with that advanced by a defendant, the court should ascertain from the defendant whether he wishes instructions on the alternative theory.' " (Ibid., quoting Sedeno, at p. 717, fn. 7, italics added by Breverman.)
Here, Castillo did not specifically rely on a self-defense theory, but there was substantial evidence to support such an argument. Castillo testified he was reaching down to pick up some cans of beer so that he could hand them back to the cashier when he was hit with a can on the left side of his head. When questioned about his decision to pull the knife, Castillo testified, "You know what? When he hit me, I just reacted, and I pulled a knife on him." The fact that the cashier denied hitting Castillo does not make Castillo's testimony insubstantial.
The self-defense instruction in CALCRIM No. 3470 provides in relevant part: "Self-defense is a defense to <insert list of pertinent crimes charged>. The defendant is not guilty of (that/those crime[s]) if (he/she) used force against the other person in lawful (self-defense/ [or] defense of another). The defendant acted in lawful (self-defense/ [or] defense of another) if: [¶] 1. The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name of third party>) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully]; [¶] 2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger. [¶] . . . [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful (self-defense/ [or] defense of another). If the People have not met this burden, you must find the defendant not guilty of <insert crime(s) charged>." --------
Although Castillo did not rely on a self-defense theory, it is not at all clear that self-defense was inconsistent with his primary defense that he did not know of Casas's criminal purposes and did not intend to aid him. Indeed, displaying the knife only after being hit with a beer can was completely consistent with his theory that he did not intentionally assist Casas in stealing the beer. Moreover, even if the trial court was concerned that the self-defense instruction might somehow undermine defense counsel's primary argument, Breverman directs the judge to " 'ascertain from the defendant whether he wishes instructions on the alternative theory.' " (Breverman, supra, 19 Cal.4th at p. 157, quoting Sedeno, supra, 10 Cal.3d at p. 717, fn. 7 (italics added).) The choice is for the defendant and his counsel. Here, the trial court failed to make the inquiry required by Breverman.
Nonetheless, we cannot conclude it is reasonably probable the jury would have returned a different verdict had it been provided with a self-defense instruction. (Breverman, supra, 19 Cal.4th at pp. 176-177.) Even without understanding the particular elements of self-defense, the jury knew that Castillo could not be found guilty of robbery unless he used force or fear intending to assist Casas in taking the beer. Defense counsel thoroughly argued the lack of intent. Having found knowledge and an intent to assist, there is no reasonable likelihood the jury would have concluded that Castillo's use of the knife was a reasonable attempt to defend himself after being hit on the head by a can of beer.
DISPOSITION
The judgment is affirmed.
DATO, J. WE CONCUR:
HUFFMAN, Acting P. J.
AARON, J.