Filed 6/24/21 P. v. Castillo CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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,

v.

ABEL CASTILLO,

 Defendant and Appellant.

 G059693

 (Super. Ct. No. 02CF0796)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Maria D. 

Hernandez, Judge. Affirmed.

Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant 

and Appellant.

No appearance for Plaintiff and Respondent.
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After a gang-related intersection incident in which the passengers of one car 

fired upon the passengers of another, appellant Abel Castillo was convicted of two first 

degree murders. He was convicted as one of the two shooters. Special circumstances 

were found to be true, establishing that the killing was intentional, appellant was an 

active participant, and it was done to further the interests of his criminal street gang. 

(Pen. Code, §§ 190.2, subd. (a)(21) and 190.2, subd. (a)(22).) 

In 2019, appellant filed a petition seeking to vacate his murder convictions

pursuant to subsequently-enacted Penal Code section 1170.95. That petition was denied

by the trial court on the basis that there was no aiding and abetting and there was no 

felony murder. The statute provides relief only for petitioners convicted of murder under 

a felony murder or natural and probable consequences theory. Since the information filed 

against petitioner was not based upon either of those theories and neither was ever 

mentioned to the jury, the court ruled he was not entitled to relief.

Appellant appealed, and we appointed counsel to represent him. Counsel 

filed a brief which set forth the facts of the crime itself and the court’s ruling on 

appellant’s petition. Counsel did not argue against his client but advised us he could find 

no issues to argue on appellant’s behalf. Appellant was invited to express his own 

objections to the proceedings against him but did not do so. We reconsidered the 

application of Penal Code section 1170.95 to his case and have also scoured the record 

for any other mistakes, as we are required to do when appellate counsel reports an 

inability to find an appellate issue. (People v. Wende (1979) 25 Cal.3d 436.) It should be 

emphasized that our search was not for issues upon which appellant would prevail, but 

only issues upon which he might possibly prevail. 

We have examined the record and found no arguable issue. Appellant does 

not fall within the ambit of the statute because the prosecution was based not on a felony 

murder theory or a natural and probable consequences theory, but upon personal malice 

aforethought in a crime in which he was an active participant and intended to kill. There 
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is no relief available under Penal Code section 1170.95 for someone whose conviction is 

based on those findings. 

To his credit, very thorough appellate counsel went further than the denial 

of appellant’s petition in trying to find an arguable appellate issue. He considered the 

possibility it might have been error for the court below to deny the petition without 

appointing counsel for appellant. And it may have been. The statute says, “The court 

shall review the petition and determine if the petitioner has made a prima facie showing 

that the petitioner falls within the provisions of this section. If the petitioner has 

requested counsel, the court shall appoint counsel to represent the petitioner.” (Pen. 

Code, § 1170.95, subd. (c).)

That language is not clear as far as when the statutory right to counsel 

attaches. Some have argued the mere allegation of circumstances which bring the case 

within the rubrics of Penal Code section 1170.95 requires a hearing. Others believe the 

court can look at the record of conviction to decide whether a hearing is required.

But we need not determine whether failure to appoint counsel was error in 

this case because the issue has since been reviewed both by appointed appellate counsel 

and this court, and both have determined there was no prima facie case for application of 

the statute. Had counsel been appointed below, he/she could have done no more than we 

have done, and it would be an idle act to send the matter back now to appoint counsel to 

consider making an argument appellate counsel and this court have concluded to be 

legally insufficient.

We have been unable to find any other issues that might be argued in 

appellant’s behalf. Our review is limited to issues pertaining to his Penal Code section 
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1170.95 petition, and we can find nothing there that might lead to reversal. The judgment 

is therefore affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

THOMPSON, J.

GOETHALS, J.