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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           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

1      All statutory references are to the Penal Code unless otherwise noted.
2      The facts are taken from the transcript of appellant’s preliminary hearing and from
our prior opinion in appellant’s direct appeal from his conviction which is a part of this
record.


                                             2.
talking to people in a white car in the intersection. He noticed someone get out through
the driver’s door of the vehicle and reach behind him for a gun. At that point, Richard
Alonzo started firing and the man ran back to the car. After the shooting stopped, he
noticed that Kelly Scott, a bystander, had been shot.
       “Esther Chavez, another witness testified that she was at the intersection waiting
for a light to turn green when she noticed approximately three men at a market at the
intersection yelling at men in a car behind her. She believed the yelling began from the
car. Ms. Chavez noticed a gun being pointed from the driver’s side window of the
vehicle and the driver attempted to get out but was pulled back into the car. There was
movement within the vehicle and the passengers could have been sharing the weapon.
Someone in the car fired first, and there could have been as many as 15 shots fired.
       “Rosemary Ornelas, who was with her mother and one year old son, testified that
she also witnessed the incident. According to Ms. Ornelas, she saw two boys at the
market, one of whom waived [sic] a bandanna. He looked like he was loading a gun and
then shot at the car. The back seat passenger on the driver’s side got out of the vehicle,
but retreated back into the car when the men on the street shot at him. When the shooting
stopped she followed the car. She saw it stop and let out a passenger who went over to an
apartment. She continued to follow the car, but then turned around to go back to the
intersection to see what had happened. On her way back she passed by the apartment and
noticed the passenger, later identified as Gilbert Castro,3 who had gotten out [sic] the of
the vehicle. She asked him what happened and he said that someone was trying to kill
him. She offered the man a ride which he accepted. Before he got into her car, he
retrieved a gun from the bushes and concealed it inside of his jacket.
       “A juvenile, Richard A., also testified. He stated that he was with Richard Alonzo
during the incident. According to Richard A., the men in the white car called him a


3      Gilbert Castro is not related to appellant.


                                              3.
‘scrapa’ which is a term of disrespect. He pulled out a knife and the passenger in the car
shot at him and he ran away. He also testified that the men in the car were ‘nortenos,’
members of a northern gang, and that he was a ‘sureno,’ and that he took the statements
as a gang challenge.
       “Officer Shear stated that he had spoken to Richard A. who gave him a
substantially similar statement after the incident. During his investigation, he was able to
locate a white AMC Concord, which belonged to the appellant’s live-in girlfriend, which
had bullet holes in the body on the driver’s side, a broken window, and blood stains on
the front passenger headrest. According to a stipulation, samples of the blood found in
the car and samples of appellant’s blood were sent to a lab for analysis and the two
samples matched. There is less than .05 percent of the population that would be expected
to have the same blood type as those submitted. In addition, it was stipulated that the
blood sample from the car did not match either Gilbert Castro or Adam Garcia, also
known as ‘Droopy.’
       “The officer’s testimony also established that approximately 10 nine-millimeter
shell casings were found in various locations near the market. In addition, a .25 caliber
shell casing and a live round were found in the intersection. Broken glass was found in
the intersection near the .25 caliber bullets, and glass was also found inside of the vehicle.
No .25 caliber bullets or shell casings were found inside of the car.
       “Later that day the officer became aware that appellant had been transported to the
hospital for treatment of a gunshot wound to the top of his head. Appellant initially told
the officer that he had been shot while walking in another area with his son. He stated
that men in a car yelled gang slogans at him and began shooting. After a few minutes,
appellant made another statement saying that he had been walking at the corner of Ben
Maddox and Houston when he was shot.
       “Criminalist Dean Gialmas testified that he analyzed samples taken from
appellant’s hands which contained gunshot residue. This could have resulted from firing

                                              4.
a gun, or being in the car when the gun was fired. It was stipulated that the samples were
indeed taken from appellant.
       “It was stipulated that if appellant’s five year old son were called to testify he
would state that he was in his mother’s white car on the day of the shooting with his
father. ‘Droopy’ was driving, and appellant was injured.
       “Testimony from Veronica Cabrera, appellant’s live-in girlfriend, established that
she owned the white AMC Concord in question [although not at the time of the shooting].
She stated that on January 31, 1995, she did not own the car, her mother owned it, but
that appellant had been using it to go to work, and that she had told appellant to sell it.
She also stated that appellant had told her he had been in the car on the day in question,
but she did not need to know more than that.
       “Officer Wightman testified appellant had told him that he was walking at the
intersection of Ben Maddox and Houston and saw an argument between people in the car
and pedestrians on the street and that shooting erupted from the car. Appellant later told
the officer that a man ran from a nearby house up to the car and someone in the car said
‘What’s up, you fucking scraps?’ One of the pedestrians waived [sic] a blue rag, the
driver of the car got out, and the pedestrian pulled out a gun. At that point appellant took
his son and ran away, but was shot.
       “Joseph Garcia testified that he was driving to the intersection on the day in
question when he heard the shots. He followed the white car, observed it stop and let out
a passenger.
       “Officer Chamberlain established that he was advised of a call for an ambulance
on the 700 block of East Houston. Appellant was taken to the hospital for his wounds.
Later, the officer went back to that address and spoke with Gilbert Castro.”
       Relevant to this appeal, Richard A. and Officer Shear were also called to testify at
appellant’s preliminary hearing. At that hearing, Richard A. testified that he did not
recall being with Richard Alonzo on the day of the shooting, could not recall making any

                                              5.
statements to Officer Shear, and directly disclaimed every statement allegedly made to
Officer Shear following the shooting except for one, that he could not identify anybody in
the car involved in the shooting.
       Officer Shear was then called to testify. He recounted Richard A.’s prior
statements to him, including that Richard A. had seen “the right front passenger” in the
car involved in the shooting “point a gun past the driver at both himself and Alonzo.”
Officer Shear also testified to other conversations from his investigation, including one
with appellant’s four-year-old son. Officer Shear testified that appellant’s son had
identified appellant as having the gun during the shooting. No objections were made to
Officer Shear’s testimony on these points.
       Appellant filed his petition for recall of sentence on February 22, 2013. After
many rounds of briefing, the trial court held a hearing on appellant’s eligibility for recall
of sentence on August 25, 2014, and denied appellant’s motion. This appeal timely
followed.
                                       DISCUSSION
       Appellant contends the trial court erred in finding he was ineligible for recall of
sentence because it lacked substantial evidence to support its determination. In
particular, appellant asserts the only evidence before the trial court demonstrating
appellant was armed with a firearm was the unreliable hearsay statement of appellant’s
four-year-old son, as recounted by Officer Shear at the preliminary hearing.
Standard of Review and Applicable Law
       Under the Three Strikes Reform Act of 2012 (the Act), “a prisoner currently
serving a sentence of 25 years to life under the pre-Proposition 36 version of the Three
Strikes law for a third felony conviction that was not a serious or violent felony may be
eligible for resentencing as if he or she only had one prior serious felony conviction.”
(People v. White (2014) 223 Cal.App.4th 512, 517.) To be eligible for resentencing, a
prisoner must satisfy the three initial criteria of section 1170.126, subdivision (e).

                                              6.
       “As cross-referenced in section 1170.126, subdivision (e)(2), a commitment
offense is ineligible for recall of sentence if ‘[d]uring [its] commission . . ., the defendant
used a firearm, was armed with a firearm or deadly weapon, or intended to cause great
bodily injury to another person.’ ” (People v. Elder (2014) 227 Cal.App.4th 1308, 1312.)
“ ‘[A]rmed with a firearm’ has been statutorily defined and judicially construed to mean
having a firearm available for use, either offensively or defensively.” (People v. Osuna
(2014) 225 Cal.App.4th 1020, 1029 (Osuna).)
       Appellant seeks resentencing through the Act on his conviction for being a felon
in possession of a firearm under former section 12021. “ ‘A defendant possesses a
weapon when it is under his dominion and control. [Citation.] A defendant has actual
possession when the weapon is in his immediate possession or control. He has
constructive possession when the weapon, while not in his actual possession, is
nonetheless under his dominion and control, either directly or through others.’ ” (Osuna,
supra, 225 Cal.App.4th at p. 1029.) “A firearm can be under a person’s dominion and
control without it being available for use.” (Id. at p. 1030.)
       “Because a determination of eligibility under section 1170.126 does not implicate
the Sixth Amendment, a trial court need only find the existence of a disqualifying factor
by a preponderance of the evidence.” (Osuna, supra, 225 Cal.App.4th at p. 1040.) “The
factual determination of whether the felon-in-possession offense was committed under
circumstances that disqualify defendant from resentencing under the Act is analogous to
the factual determination of whether a prior conviction was for a serious or violent felony
under the three strikes law. Such factual determinations about prior convictions are made
by the court based on the record of conviction.” (People v. Hicks (2014) 231 Cal.App.4th
275, 286.) In this analysis, “the court may examine relevant, reliable, admissible portions
of the record of conviction to determine the existence or nonexistence of disqualifying
factors.” (People v. Blakely (2014) 225 Cal.App.4th 1042, 1063.)



                                              7.
       On appeal, we review the evidentiary facts properly considered as part of the
entire record of conviction “in the light most favorable to the judgment below to
determine whether they disclose substantial evidence--that is, evidence which is
reasonable, credible and of solid value--such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Garrett (2001) 92 Cal.App.4th
1417, 1433; see also People v. Towers (2007) 150 Cal.App.4th 1273, 1277.)
Substantial Evidence Shows Appellant Was Armed With A Firearm
       In this case, we do not need to reach appellant’s contention that the testimony of
his four-year-old son was insufficiently reliable to support finding appellant ineligible for
resentencing. Although the trial court noted the boy’s testimony in pronouncing its
conclusion, it also expressly stated, in its oral pronouncement and the following order,
that it was relying on the “circumstances of the offense” and was “taking all evidence
into consideration.” There was substantial evidence before the trial court showing
appellant was armed with a firearm, even without the contested statement from
appellant’s son.
       As detailed in our opinion from appellant’s direct appeal of his conviction, there
was ample evidence that appellant was not only in the white car involved in the shooting,
but that he was the right front passenger in that car. Appellant admitted to his girlfriend
that he was in the white car during the shooting. And appellant’s son, through stipulated
and uncontested testimony, confirmed appellant was in the car, was not driving, and was
wounded in the shooting. With regard to his specific location, appellant suffered a bullet
wound to his head during the shooting. An analysis of blood found on the front
passenger’s side headrest of the white car showed appellant had been wounded while
seated there.
       Apart from merely being present, however, the trial court had substantial evidence
before it to conclude that appellant not only had a gun available for use, but that appellant
was the actual shooter. Multiple witnesses testified a gun was present within or shots

                                             8.
were fired from the white car. And gunshot residue was found on appellant’s hands,
which could have come from either firing the gun or being present in the car when the
gun was fired. At trial, Richard A. testified that “the passenger in the car shot at him.”
However, additional detail regarding the meaning of this statement was provided at the
preliminary hearing. There, Richard A. was confronted with statements made to Officer
Shear and given an opportunity to explain them, including one in which Richard A. stated
he “saw the driver of the vehicle of that car lean back in his seat and . . . saw the
passenger in the front point a small-caliber handgun, either a .25 or a .22 out the front and
over the driver of the vehicle.” When Richard A. denied any recollection of his prior
statements, Officer Shear testified regarding his investigation and Richard A.’s prior
statement that he “saw the right front passenger in that vehicle point a gun past the
driver.”
       Appellant raised no admissibility challenge to Richard A.’s statements before the
court hearing his petition or in his opening brief and, in reply, merely dismisses them as
“double hearsay.” However, a preliminary hearing transcript, per se, is part of the record
of conviction and not excluded by the hearsay rules. (People v. Reed (1996) 13 Cal.4th
217, 224-225.) And Richard A.’s prior inconsistent statements, proven by extrinsic
evidence after an opportunity to explain or deny the statements, were admissible under
Evidence Code sections 770 and 1235. Thus, appellant’s argument in reply would be
without merit, even if it had been timely raised and developed. Accordingly, reasonable,
credible, and solid evidence shows appellant was in the front right passenger seat of the
white car and shows the person in that seat possessed a gun.
       In light of our conclusion that the evidence is sufficient to find appellant had
physical possession of the gun during the shooting, appellant’s argument that he could
not be found ineligible for only having constructive possession of the gun is moot.
                                       DISPOSITION
       The order is affirmed.

                                              9.
