Filed 3/23/21 P. v. Castillo CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

HECTOR CASTILLO,

Defendant and Appellant.

 B301982

 (Los Angeles County

 Super. Ct. No. BA438393)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Ray G. Jurado, Judge. Affirmed as 

modified.

John Steinberg, 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, Michael R. Johnsen and Yun K. Lee, Deputy 

Attorneys General, for Plaintiff and Respondent.

____________________________
2

Defendant Hector Castillo was convicted of one count of 

first degree murder, one count of shooting at an occupied motor 

vehicle, and two counts of unlawful possession of a firearm. The 

jury found true gang enhancement allegations relating to all four 

offenses, and it also found true firearm enhancement allegations 

pertaining to the murder and shooting at an occupied motor 

vehicle convictions. The trial court sentenced Castillo to an 

aggregate prison term of 50 years to life, with a minimum parole 

eligibility date of 15 calendar years. The lower court also 

imposed, but stayed, certain prison terms, including two 10-year 

gang enhancements.

On appeal, Castillo alleges claims of prosecutorial 

misconduct, the erroneous exclusion of evidence supporting his 

theories of imperfect self-defense and third-party culpability, 

instructional error, the erroneous denial of his motion to 

bifurcate the gang allegations from the trial of the underlying 

substantive offenses, insufficiency of the evidence supporting the 

gang allegations, and cumulative error. Castillo further contends 

that the trial court erred in imposing the 15-year minimum 

parole eligibility date and the two 10-year gang enhancements.

Castillo’s prosecutorial misconduct claims fail because he 

has not demonstrated that he was prejudiced by the People’s 

actions. We also reject his challenge to the trial court’s 

evidentiary ruling and his claim of instructional error because his 

characterizations regarding the excluded evidence giving rise to 

those claims are unsupported by the record. His challenges to 

the denial of his bifurcation motion and to the sufficiency of the 

evidence fail because the People offered evidence showing that 

Castillo shot a rival gang member in territory claimed by 

Castillo’s gang in order to defend that territory and avenge the 
3

murder of Castillo’s brother, who was a member of his gang. 

Castillo’s cumulative error claim does not warrant reversal

because, aside from his allegations of prosecutorial misconduct, 

we explicitly pass upon and reject the merits of his claims of trial 

error. Lastly, although we accept the parties’ concession that the 

two 10-year gang enhancements should be stricken, we disagree 

with Castillo’s contention that the trial court’s imposition of the 

15-year minimum parole eligibility date was unauthorized. 

We thus affirm the judgment as modified.

PROCEDURAL BACKGROUND

On September 28, 2016, the People filed an information 

charging Castillo with one count of murder, in violation of Penal 

Code1 section 187 (count 1); one count of shooting at an occupied 

motor vehicle, in violation of section 246 (count 2); one count of 

unlawful possession of a firearm, in violation of section 29805

(count 3); and another count of unlawful possession of a firearm, 

in violation of section 29815, subdivision (a) (count 4). With 

regard to counts 1 and 2, the information alleged that Castillo 

personally and intentionally discharged a firearm causing great 

bodily injury for the purposes of section 12022.53, subdivision (d). 

Additionally, the information averred that Castillo committed all 

four offenses for the benefit of, at the direction of, or in 

association with a criminal street gang with the specific intent to 

promote, further, or assist in criminal conduct by gang members. 

Castillo later pleaded not guilty to all counts. 

1 Undesignated statutory citations are to the Penal Code.
4

On February 21, 2019, the jury found Castillo guilty of first 

degree murder and of all other charged offenses, and found the 

gang and firearm enhancement allegations to be true. 

On October 22, 2019, the trial court sentenced Castillo to 

an aggregate prison term of 50 years to life. The sentence is 

comprised of a term of 25 years to life on count 1, with a 

consecutive sentence of 25 years to life imposed on that count

pursuant to section 12022.53, subdivision (d); the court imposed, 

but stayed pursuant to section 654, a 10-year concurrent 

enhancement on count 1 pursuant to section 186.22, 

subdivision (b)(1)(C). Pursuant to section 186.22, 

subdivision (b)(5), the trial court ruled that Castillo could not be 

paroled until he had served a minimum of 15 years of his prison 

sentence. The court also imposed prison terms for counts 2, 3, 

and 4, but stayed each of those sentences pursuant to section 654.

Of particular note for the instant appeal is the sentence imposed 

for count 2, which was a 7-year prison term, along with: a 

10-year enhancement pursuant to section 186.22,

subdivision (b)(1)(C); an indeterminate life sentence pursuant to 

section 186.22, subdivision (b)(4); and a 25-year enhancement 

pursuant to section 12022.53, subdivision (d).

Castillo timely appealed the judgment. 

FACTUAL BACKGROUND

This part summarizes relevant portions of (a) testimony 

offered by the People’s witnesses, and (b) the defense’s theory of 

the case.
5

1. The People’s Evidence

A. The Shooting and Its Aftermath

On March 21, 2015, Rosario Marban lived at a home on

Eastlake Avenue in Los Angeles (Marban residence) with his 

family, including his son, Alberto Marban.2 A family gathering 

was taking place at the house that evening. When Oscar Rivera 

arrived at the Marban residence, he walked through an archway 

and saw two persons sitting on chairs outside the house; Rivera 

later made his way to the backyard, as did Rosario. While they 

were in the backyard that evening, Rivera and Rosario heard 

gunshots. 

Christian Lepe was driving on Minnesota Street near 

Eastlake Avenue when he heard gunshots and saw a car that had 

flipped over. Lepe parked his vehicle and saw a man inside the

other car who was not moving. 

At 6:54 p.m., two police officers responded to a shooting 

reported at an address located near the Marban residence. After 

arriving at that location, one of the officers saw a white sport 

utility vehicle (SUV) that had flipped over onto its passenger 

side. A Lincoln Heights gang member named David Cardiel was 

the sole occupant of the SUV.3 Cardiel had sustained multiple 

2 For the sake of clarity, and meaning no disrespect, we 

will use first names when referring to members of the Marban 

family. Additionally, we note there is no dispute that Castillo 

was Alberto’s “childhood friend.” 

3 The parties do not dispute the People offered evidence 

that Cardiel had tattoos consistent with membership in the 

Lincoln Heights gang. 
6

gunshot wounds to his face and body, and was pronounced dead 

at the scene. Police found no firearms on Cardiel. 

Officers thereafter canvassed the area north of the scene of 

the shooting. The officers subsequently asked the occupants of 

the Marban residence to exit the home, and then conducted a 

sweep of the dwelling for suspects. 

One of the officers went upstairs to Alberto’s bedroom, 

where the officer found Castillo lying face down on a bed. 

Castillo, who was breathing heavily and sweating, was taken into 

custody.4

A detective entered a bathroom in the home, examined a

trash can, and found therein a pair of jeans, a Los Angeles 

Dodgers baseball cap, and a damp shirt that had been turned 

inside out. Inside the pocket of the jeans were three 

identification cards that bore Castillo’s name, including a 

California identification card. The detective used the same 

gloves to remove each item of clothing from the trash can. 

As Alberto saw the police remove Castillo from the Marban 

residence, Alberto noticed that Castillo was wearing Alberto’s 

shirt. At trial, Alberto claimed that although he had seen

Castillo on the morning of March 21, 2015, Castillo did not come 

to family gathering. Alberto further claimed that he did not give 

Castillo permission to wear Alberto’s shirt or enter his bedroom.

Alberto also insisted that the clothing found in the bathroom 

trash can did not belong to him, and that he did not place those 

articles of clothing in the trash can. 

4 Police found a 7.62-caliber rifle bullet on the bedroom 

floor. Alberto’s testimony indicates that he found the bullet at a 

park prior to the shooting and placed it on the floor of the 

bedroom. 
7

An officer conducted a protective sweep of the backyard of 

the Marban residence, and found a rifle on the hill by the fence 

line.

5 The magazine contained four live bullets, and the chamber 

contained one bullet. A glove was found under the rifle. An 

opening along the fence led to a neighbor’s property. Police also 

“recovered three cartridge casings, two of which were on the 

landing between two staircases in front of the residence, a 

Monster energy drink can in the front yard, and a red spray paint 

can in a planter.”6 

One of the officers investigating the shooting noticed that

the words “Eastlake 1” and “Swifty” appeared in red paint on a 

wall across the street from the Marban residence. The officer 

testified that he could smell paint in the air in the vicinity of the

wall, and that this smell indicated that someone had recently

spray-painted the graffiti.

5 For the purposes of this appeal, Castillo concedes that 

this was the weapon that was used to shoot Cardiel. (See Artal v. 

Allen (2003) 111 Cal.App.4th 273, 275, fn. 2 (Artal) [“ ‘[B]riefs 

and argument . . . are reliable indications of a party’s position on 

the facts as well as the law, and a reviewing court may make use 

of statements therein as admissions against the party. 

[Citations.]’ ”].)

6 The Attorney General asserts, and Castillo does not 

dispute, that evidence to this effect was introduced at trial. (See 

Reygoza v. Superior Court (1991) 230 Cal.App.3d 514, 519 & fn. 4

[criminal case in which the Court of Appeal assumed that an 

assertion made by respondent was correct because the “defendant 

did not dispute respondent’s claim in his reply”]; Rudick v. State 

Bd. of Optometry (2019) 41 Cal.App.5th 77, 89–90 [concluding 

that the appellants made an implicit concession by “failing to 

respond in their reply brief to the [respondent’s] argument on 

th[at] point”].)
8

B. Forensic Evidence

The shell casings found at the scene of the shooting were 

fired from the rifle found in the backyard of the Marban 

residence. The weapon was a 7.62 by 39-millimeter caliber rifle. 

Gunshot residue (GSR) is a group of microscopic particles 

that are formed when a firearm is discharged. GSR is comprised 

of three elements: lead, antimony, and barium. A “characteristic 

particle” contains all three aforesaid elements. If a characteristic 

particle is found on a person, then there are four possible 

explanations for that phenomenon: (1) that person discharged a 

firearm, (2) the individual was in the general vicinity of a firearm 

being discharged, (3) the person touched something that had GSR

on it, or (4) something with GSR thereon touched that person.

For instance, “when a police officer handcuffs someone, [that 

officer] could be a source of introducing . . . a characteristic 

particle onto someone’s hands . . . .” Additionally, an “indicative 

particle” typically contains only two of the three elements found 

in GSR, and could “possibly come from . . . environmental 

sources” other than the firing of a gun. 

One characteristic particle was found on Cardiel’s left 

hand. A characteristic particle was also found on Castillo. 

Although no GSR was detected on Alberto, six indicative particles 

were found on him. 

Detectives obtained DNA samples from Castillo and 

Alberto. DNA swabs were taken from the rifle, hat, shirt, and 

jeans seized on March 21, 2015. The rifle’s trigger, trigger guard, 

wood stock, wood grips, and bolt were swabbed for DNA. 

Alberto was the major contributor of the DNA found on the 

hat. Castillo was the major contributor of the DNA found on the 

shirt and jeans, and he was the single contributor of the partial 
9

DNA profile found on the rifle. The People’s DNA examiner 

testified that he could not ascertain which part of the rifle the 

partial DNA profile came from, and that the DNA could have 

come from any part of the weapon that had been swabbed. 

Although the examiner could not say with certainty that direct 

human contact with the rifle is the only means by which the DNA 

could have been left thereon, he testified that “the easiest and 

most common way that DNA transfers . . . is by direct, primary 

handling of an item.”

The random-match probability of the profile from the rifle 

was one in a hundred billion unrelated people. 

C. Gang Evidence

Eastlake is a gang that had 75 documented members in 

2015, 20 to 25 of whom lived in the area where the shooting 

occurred. The Eastlake gang’s primary activities include 

possession and sales of narcotics, possession of weapons, assaults 

with a deadly weapon, shootings, and homicides. The shooting 

occurred in territory claimed by the Eastlake gang. 

Los Angeles Police Officer Juan Cobian testified as a gang 

expert for the People. Officer Cobian testified that Castillo was a 

self-identified Eastlake gang member who used the moniker 

“Swifty.” Castillo also made recorded telephone calls from jail in 

which he identified himself as “Swifty.” Castillo had tattoos with 

the words “Lakers” and “East,” which were indicative of 

membership in the Eastlake gang. 

Castillo also has a tattoo that reads, “Rest in Peace, Little 

Toker.” Castillo’s younger brother, Juan Castillo, was a member 

of the Eastlake gang who had the moniker “Toker.” Juan Castillo 

had been fatally shot in 2010. Rosa Ramirez, Castillo’s cousin, 

testified that Castillo told her he believed that his brother, Juan, 
10

had been killed by the Lincoln Heights gang. No Lincoln Heights 

gang member was prosecuted for the killing. 

It is undisputed that Cardiel was a member of Lincoln 

Heights, a gang that has approximately 120 members. Lincoln 

Heights has a violent rivalry with the Eastlake gang. In March 

2015, the two gangs “were fighting[, t]hey were shooting at each 

other[, t]hey were attacking each other’s territory[,] and . . . . 

going through each other’s territory and disrespecting each 

other . . . .” In Officer Cobian’s opinion, an Eastlake gang 

member would be expected to defend his gang’s territory from a 

rival gang member who entered that territory. Officer Cobian 

opined that the discovery of graffiti with the words “Eastlake” 

and “Swifty” indicated that an Eastlake gang member was 

claiming his territory. 

In Officer Cobian’s opinion, the shooting benefited the 

Eastlake gang because it created an atmosphere of intimidation 

in the community, and because Castillo, an Eastlake gang 

member, believed his brother had been killed by the Lincoln 

Heights gang. Additionally, Officer Jorge Alfaro, another gang 

expert called by the People, opined that the shooting was gangrelated because Cardiel had multiple Lincoln Heights tattoos, the 

shooting occurred in territory claimed by the Eastlake gang, and 

freshly painted graffiti was near the scene of the shooting. 

2. The Defense’s Theory of the Case

At bottom, the defense theory was that Castillo was not the 

assailant, others who were potentially responsible for the killing

were seen in front of the Marban residence prior to the shooting, 

Alberto’s testimony was not credible, and the police’s 

investigation, including the collection of forensic evidence, was 

sloppy. Defense counsel cited several examples of the police’s 
11

purportedly deficient investigative practices, including a 

detective’s failure to change his gloves between handling each 

article of clothing found in the bathroom trash can. Additionally, 

trial counsel suggested that the GSR found on Castillo could have 

been transferred to him when he was handcuffed, and that his 

DNA could have been transferred to the rifle without him 

touching it. 

Counsel also argued that although Alberto denied driving

Castillo to Baldwin Park and then back to the Marban residence 

on the day of the shooting, Alberto admitted to a defense 

investigator that he had driven Castillo that day. Trial counsel

further contended, among other things, that after Castillo

returned to the Marban residence, he entered Alberto’s bedroom 

and went to sleep. 

DISCUSSION

A. Castillo’s Claims of Prosecutorial Misconduct Do Not 

Warrant Reversal

“A prosecutor’s misconduct violates the Fourteenth 

Amendment to the federal Constitution when it ‘infects the trial 

with such unfairness as to make the conviction a denial of due 

process.’ [Citations.] In other words, the misconduct must be ‘of 

sufficient significance to result in the denial of the defendant’s 

right to a fair trial.’ [Citation.]” (People v. Harrison (2005) 

35 Cal.4th 208, 242 (Harrison I).) 

“A prosecutor’s misconduct ‘that does not render a criminal 

trial fundamentally unfair’ violates California law ‘only if it 

involves “ ‘the use of deceptive or reprehensible methods to 

attempt to persuade either the court or the jury.’ ” ’ [Citations.]” 

(Harrison I, supra, 35 Cal.4th at p. 242.) Although the cases 
12

defining prosecutorial misconduct under state law employ “such 

adjectives as ‘intemperate,’ ‘reprehensible,’ ‘egregious,’ and 

‘deceptive,’ the concept of ‘prosecutorial “misconduct” is

somewhat of a misnomer to the extent that it suggests a 

prosecutor must act with a culpable state of mind. A more apt 

description of the transgression is prosecutorial error.’ [Citation.] 

No ‘showing of bad faith is required to establish prosecutorial 

misconduct in argument to the jury.’ [Citation.]” (See People v. 

Jasso (2012) 211 Cal.App.4th 1354, 1362.) “ ‘A defendant’s 

conviction will not be reversed for prosecutorial misconduct 

[under state law] . . . unless it is reasonably probable that a 

result more favorable to the defendant would have been reached 

without the misconduct.’ [Citation.]” (See Harrison I, at p. 244.)

Castillo contends that the cumulative effect of the People’s

misconduct at trial violated his “federal and state constitutional 

rights to due process, requiring reversal.” Specifically, Castillo 

identifies the following alleged instances of prosecutorial 

misconduct: (1) The People (a) “sandbagg[ed]” the defense during 

their rebuttal argument by contending that Castillo could have

called his grandmother as a witness to support Castillo’s theory 

that he was at the Marban residence prior to the shooting, and 

(b) failed to adhere to their obligations under Brady v. Maryland 

(1963) 373 U.S. 83 (Brady), by not disclosing that they had 

investigated Castillo’s grandmother’s whereabouts and 

determined there was no record indicating she was deceased or 

unavailable as a witness; (2) on the eve of trial, the People 

indicated for the first time that they intended to call Rosa 

Ramirez as a witness regarding statements Castillo made 

concerning the murder of his brother and the gang that 
13

committed it;7 (3) the People showed several photographs to the 

jury wherein Castillo was wearing jail wristbands; (4) the People 

disclosed to Castillo in the midst of trial that their fingerprint 

expert intended to testify that an item’s exposure to hot and/or 

cold temperatures may prevent an analyst from recovering usable 

prints therefrom; and (5) the People played for the jury a 

recording of, and provided the jury with a transcript pertaining 

to, Castillo’s interview with police, wherein Officer Alfaro stated

that Castillo did not want to provide the police with a DNA

sample.

We reject this claim of error because Castillo fails to 

demonstrate that the cumulative effect of these purported

instances of prosecutorial misconduct warrants reversal.

First, Castillo has not shown that the People violated their

Brady obligations by failing to disclose that they had conducted 

an investigation regarding the potential availability of his 

grandmother as a witness. “A Brady violation occurs if three 

conditions are met: ‘ “The evidence at issue must be favorable to 

the accused, either because it is exculpatory, or because it is 

7 Although Castillo seems to challenge “[t]he prosecutor’s 

failure to . . . timely disclose [Castillo’s brother’s] murder book,” 

which allegedly included a note memorializing the contents of 

Ramirez’s anticipated testimony, Castillo does not identify any 

other evidence in the book that the People were obligated to 

produce during discovery. Thus, we need not address the

disclosure of the murder book itself further. (See People v. 

Giordano (2007) 42 Cal.4th 644, 666 (Giordano) [“On appeal, 

we presume that a judgment or order of the trial court is correct, 

‘ “[a]ll intendments and presumptions are indulged to support it 

on matters as to which the record is silent, and error must be 

affirmatively shown[,]” ’ ” italics added].)
14

impeaching; [the] evidence must have been suppressed by the 

State, either willfully or inadvertently; and prejudice must have 

ensued.” [Citation.] Prejudice, in this context, focuses on “the 

materiality of the evidence to the issue of guilt or innocence.” 

[Citations.]’ [Citation.]” (People v. Harrison (2017) 

16 Cal.App.5th 704, 709 (Harrison II).)

Castillo seems to argue that the People “knew that 

[Castillo’s] grandmother was a potentially favorable witness to 

the defense, who could corroborate [Castillo’s] presence [at the 

Marban residence].” (Italics added.) In response, the People 

correctly point out that their “investigation did not reveal the 

content of [Castillo’s grandmother’s] would-be testimony let alone 

that her testimony would exculpate [Castillo].” Instead, the 

record shows only that the People ascertained Castillo’s 

grandmother’s potential whereabouts and that public records 

suggest she is not deceased. 

Nor did the People concede in their rebuttal argument that

Castillo’s grandmother would testify that she saw Castillo at the 

Marban residence prior to the shooting. The prosecutor asserted

during the rebuttal argument: “If [Castillo] was there [(i.e., at 

the Marban residence prior to the shooting)], the grandmother 

would have known.” (Italics added.) Hence, the prosecutor

merely pointed out that Castillo’s factual theory lacked 

evidentiary support that he could have easily supplied if his 

theory were true. It follows that Castillo has not demonstrated

that the People violated Brady by withholding favorable (i.e., 

exculpatory or impeachment) evidence from him. (See 

Harrison II, supra, 16 Cal.App.5th at p. 709.)

Further, Castillo fails to establish that the People 

improperly sandbagged him by stating in their rebuttal argument 
15

that Castillo’s grandmother would have known whether Castillo 

was at the Marban residence prior to the shooting. Castillo’s 

briefing suggests he believes this remark was improper because it 

was not “ ‘fairly responsive to argument of defense counsel’ ” and 

was “withh[eld] . . . until rebuttal . . . .” Yet, Castillo concedes—

and the record reveals—that the People made this statement 

after defense counsel argued to the jury that Alberto took Castillo 

to the Marban residence, and that Castillo then went upstairs to 

the bedroom to go to sleep. Thus, it is not apparent that the 

People withheld this argument until their rebuttal, or that this 

remark was not fairly responsive to Castillo’s closing argument. 

Given that Castillo does not further expound upon the basis of 

his allegation that the People sandbagged him, we reject his 

claim that this remark constitutes prosecutorial misconduct. 

(See Giordano, supra, 42 Cal.4th at p. 666 [“ ‘ “[E]rror must be 

affirmatively shown[,]” ’ ” italics added].)

Moreover, the trial court granted continuances in an

attempt to mitigate any prejudice resulting from the 

prosecution’s belated disclosure of anticipated testimony from

Rosa Ramirez and the People’s fingerprint expert, respectively.

After the defense informed the court that the prosecution had

revealed the contents of Rosa Ramirez’s prospective testimony 

shortly before trial was scheduled to commence, the court 

continued the trial from August 31, 2018 to January 23, 2019.

With regard to the People’s fingerprint expert, the trial court 

authorized Castillo’s counsel to recall this expert for further 

cross-examination and, after the expert testified, the proceedings 

were continued for one day to afford the defense attorney an 

opportunity to consult with another fingerprint expert. Given 

these measures, it is not apparent that the People’s alleged 
16

misconduct relating to these two witnesses had any impact on 

Castillo’s defense, nor has Castillo explained why the trial court’s 

rulings failed to cure any purported prejudice.

Castillo’s reliance on Officer Alfaro’s recorded statement

that Castillo did not want to provide a DNA sample and on the 

photographs showing Castillo’s jail wristbands is also unavailing. 

We acknowledge that the prosecution had agreed to (but did not) 

ensure that the aforesaid evidence was not presented to the jury. 

Nonetheless, the trial court found that any prejudice resulting 

from Officer Alfaro’s statement was “minimal” because this was a 

“brief” statement in a lengthy interview and Castillo ultimately 

provided a sample to the police. Similarly, the trial court found 

that photographs depicting Castillo’s jail wristbands caused 

Castillo no “undue prejudice” because the photographs were 

shown for “no more than two seconds” without any comment and 

the jail wristbands were “not readily identifiable” by anyone, 

especially lay people. Castillo does not contest the trial court’s 

characterizations regarding Officer Alfaro’s statement or the 

photographs shown to the jury depicting Castillo’s jail 

wristbands. We may thus consider them. (See Giordano, supra,

42 Cal.4th at p. 666.)

Instead, Castillo suggests that had the jury not known that 

he declined to provide a DNA sample during his interview with 

Officer Alfaro, then the jury would have rejected Alberto’s 

testimony that he did not drive Castillo to the Marban residence

on the day of the shooting. In particular, Castillo claims that the 

People elicited testimony from a detective that Alberto was 

willing to provide a DNA sample, and that Alberto testified he 

provided the sample “ ‘because [he] was not involved in 

anything.’ ” Any claim that excluding Officer Alfaro’s statement
17

from Castillo’s interview with police would have been fatal to 

Alberto’s credibility is speculative, especially considering that the 

People later elicited testimony from Detective Miguel Barajas 

that Castillo “willing[ly] and cooperative[ly]” provided a DNA 

sample to him in connection with this case. 

In sum, assuming arguendo that (with the exception of the 

People’s remark concerning Castillo’s grandmother and their 

efforts to ascertain her availability, which we find do not amount 

to misconduct), the People did perpetrate prosecutorial 

misconduct in the manner Castillo alleges, the cumulative effect 

of that purported malfeasance does not warrant reversal of the 

judgment. As noted above, Castillo has not shown that the trial

court failed to cure any prejudice resulting from the late 

disclosure of Rosa Ramirez’s and the fingerprint expert’s 

anticipated testimony, or that the lower court erred in finding 

that Officer Alfaro’s statement and the photographs of Castillo’s 

jail wristbands had very little, if any, effect on the proceedings. 

Indeed, these instances of purported misconduct seemed to have 

no effect on the key evidentiary issues of this case, including the 

discovery of Castillo’s DNA on the murder weapon, the GSR 

found on him, the suspicious circumstances surrounding 

Castillo’s presence at the Marban residence, his membership in a 

gang that had a violent rivalry with Cardiel’s gang, and Castillo’s 

belief that his brother was killed by that rival gang. Thus, we 

find the alleged prosecutorial misconduct did not “ ‘infect[ ] the 

trial with such unfairness as to make the conviction a denial of 

due process[,]’ ” and “ ‘it is [not] reasonably probable that a result 

more favorable to [Castillo] would have been reached without the 
18

misconduct.’ ”8 (See Harrison I, supra, 35 Cal.4th at pp. 242, 

244.) 

B. Castillo Fails to Establish the Trial Court Erred in 

Excluding Vanessa Bonet’s Testimony

Castillo contends that the trial court erroneously excluded 

Vanessa Bonet’s testimony under Evidence Code section 352,

and, in so doing, “violated [Castillo’s] federal and state 

constitutional rights to present a defense and due process.” He

maintains that on the day of the shooting, Bonet heard gunshots 

and observed that several people were near a black SUV, 

including a person who “ ‘might have been holding’ ” a handgun. 

Castillo insists that this evidence would have supported an 

imperfect self-defense theory because “Bonet’s observation of a 

man who appeared to be holding a gun near the overturned SUV

supported the defense theory that [Lincoln Heights] gang 

members were shooting in the direction of the house, and that 

Cardiel was fatally shot by return fire.” (Italics added.) Castillo 

further contends that “[i]f the jury believed Bonet’s testimony, it 

supported the alternative theory that a third-party shot Cardiel, 

who came into the rival gang territory with other, armed gang 

members, to carry out a ‘mission’ against [Eastlake].” (Italics 

added.) Hence, Castillo’s challenge to the trial court’s ruling is 

apparently predicated on his belief that Bonet would have 

8 Castillo also contends that the cumulative effect of the 

People’s alleged misconduct and the other instances of trial error 

identified in his opening brief (e.g., the trial court’s denial of his 

motion to bifurcate) warrants the reversal of the judgment. This 

claim fails because we reject Castillo’s other claims of trial error

as well. (See Discussion parts B–E, post.) 
19

testified that she saw several persons near Cardiel’s SUV, 

including an individual who may have been holding a handgun. 

This theory is contradicted by the trial court’s findings 

regarding Bonet’s expected testimony. In the course of excluding 

Bonet from trial, the court stated: “With regard to Ms. Bonet’s 

testimony, it appears to me that she was looking at a different 

location when she heard these shots. Some time passed before 

she even focused her attention on the vehicle where she saw 

these individuals, and one person in a crouched position who may 

have—may have or seemed to her to be holding a gun. [¶] My 

impression at this point is that that was a separate and different 

location from where it is alleged Mr. Castillo was when he 

supposedly fired the shots, and where the decedent was when the 

incident occurred.” 

The trial court further stated: “[W]here it’s alleged the 

defendant shot these shots were at least three houses away—at 

least that’s the way it appeared to me on the diagram,[9]from 

where the other location was where Ms. Bonet says that she said 

she saw another SUV. That, to me, appeared to be entirely 

unconnected, at least at this point, with this incident.” The court 

then found that exclusion of Bonet’s testimony was appropriate

under Evidence Code section 352 on the ground that its 

introduction would result in an “[undue] consumption of time, 

create substantial danger of [undue] prejudice, confuse the issues 

and possibly mislead the jury.” This ruling, and the findings 

9 Attached to the People’s motion to exclude this evidence 

was a diagram drawn by Bonet on June 1, 2018, which appears to 

depict a black SUV, a curved roadway, and East Los Angeles 

Park. 
20

supporting it, are presumed to be correct. (See Giordano, supra,

42 Cal.4th at p. 666.)

Castillo does not cite any evidence in the record to rebut 

these findings. Rather, he seems to rely upon defense counsel’s 

representations concerning Bonet’s anticipated testimony, 

including his trial attorney’s assertion that “she saw the person 

with the gun ‘perhaps within 25 feet’ of where the vehicle was 

turned over.” As a consequence, his challenge to the trial court’s 

exclusion of Bonet’s testimony fails. (See People v. Flint (2018) 

22 Cal.App.5th 983, 1006, fn. 17 [“ ‘[C]ourts will decline to 

consider any factual assertion unsupported by record citation at 

the point where it is asserted[.]’ ”]; People v. Wallace (2004) 

33 Cal.4th 738, 754, fn. 3 [“ ‘[I]t is axiomatic that the unsworn 

statements of counsel are not evidence.’ ”].)

In arriving at this conclusion, we observe that Castillo’s 

appellate counsel submitted a letter to the trial court clerk 

requesting “Castillo’s motion in limine filed on August 30, 2019, 

regarding testimony of Vanessa Bonet.” The clerk responded by 

filing a certificate stating the following: “After a careful search of 

the superior court file, I was unable to locate the Defendant 

Castillo’s Motion in Limine filed on August 30, 2019.” It seems 

that Castillo’s trial counsel actually filed the motion in question

on August 30, 2018. In any event, Castillo’s appellate counsel 

does not clarify whether any evidence we could consider was 

attached to the motion in limine (e.g., statements from Bonet). 

C. Castillo’s Claims of Instructional Error Fail

In his reply, Castillo readily admits his argument that “the 

trial court erred by failing to instruct the jury on the defenses of 

imperfect-self defense and third-party culpability . . . depend on 

the previous argument that Bonet’s testimony [was] improperly 
21

excluded.” Because Castillo’s appellate claim challenging the 

exclusion of Bonet’s testimony fails, so too do his claims of 

instructional error.

D. The Trial Court Did Not Err in Denying Castillo’s 

Motion to Bifurcate the Criminal Street Gang 

Enhancement from the Trial of the Underlying 

Substantive Offenses

“Bifurcation of gang allegations is appropriate where the 

gang evidence is ‘so extraordinarily prejudicial, and of so little 

relevance to guilt, that it threatens to sway the jury to convict 

regardless of the defendant’s actual guilt.’ [Citation.] In a case 

not involving imposition of the gang enhancement, such ‘evidence 

of gang membership is potentially prejudicial and should not be 

admitted if its probative value is minimal.’ [Citation.] On the 

other hand, ‘evidence of gang membership is often relevant to, 

and admissible regarding, the charged offense.’ [Citation.] Given 

the public policy preference for the efficiency of a unitary trial, a 

court’s discretion to deny bifurcation of a gang allegation is 

broader than its discretion to admit gang evidence in a case with 

no gang allegation. [Citation.] Thus, ‘[e]ven if some of the 

evidence offered to prove the gang enhancement would be 

inadmissible at a trial of the substantive crime itself . . . a court 

may still deny bifurcation.’ [Citation.]” (People v. Franklin

(2016) 248 Cal.App.4th 938, 952 (Franklin).)

“We review the trial court’s denial of the motion to 

bifurcate for abuse of discretion, based on the record as it stood at 

the time of the ruling. [Citations.] Our review is guided by the 

familiar principle that ‘[a] court abuses its discretion when its 

rulings fall “outside the bounds of reason” ’ ”—i.e., “ ‘ “the trial 

court exercised its discretion in an arbitrary, capricious, or 
22

patently absurd manner that resulted in a manifest miscarriage 

of justice[.]” ’ ” (See Franklin, supra, 248 Cal.App.4th at p. 952.) 

Further, “[i]f the trial court’s ruling was correct on the record 

before it, the ruling is subject to reversal only upon a showing 

that ‘ “joinder actually resulted in ‘gross unfairness’ amounting to 

a denial of due process.” ’ [Citation.]” (Id. at pp. 952–953.)

Castillo argues the trial court erred in denying his motion 

to bifurcate the criminal gang enhancement from the trial of the 

underlying offenses because “[e]vidence that [Castillo’s] brother 

was fatally shot five years earlier was too remote to support a 

motive of gang retaliation; . . . there was no evidence of a 

confrontation of rival gang members before the shooting to 

support the prosecution’s theory that the perpetrator identified 

the victim as a rival gang member”; and “[t]he failure to bifurcate 

the gang enhancement created the impermissible risk that the 

jury would use evidence of [his] criminal propensity as a gang 

member to substitute for proof of the charged crimes.” For the 

reasons discussed below, we conclude Castillo has not established

that the trial court abused its discretion in denying his motion.

First, Castillo claims that “[t]he shooting of [Castillo’s] 

brother was . . . too remote to supply a gang motive for the 

charged crimes” because “[i]t is patently unreasonable to 

conclude that a street gang would wait five years to pay back a 

rival gang for the killing of a gang member in order to ‘get that 

respect back’ for their gang,” and “[i]t is equally unreasonable to 

conclude that a street gang would wait five years to prevent the 

appearance that a rival gang is stronger.” Yet, Castillo concedes 

the People offered evidence that Lincoln Heights and Eastlake 

“were engaged in a violent rivalry” involving “many shootings.” 

(Italics added.) Thus, the trial court did not act in “ ‘ “an 
23

arbitrary, capricious, or patently absurd manner” ’ ” in impliedly 

finding there was evidence that Eastlake gang members had 

engaged in violent skirmishes with Lincoln Heights on other 

occasions prior to the shooting and did not “wait” five years to 

retaliate against Lincoln Heights for the murder of Castillo’s 

brother. (See Franklin, supra, 248 Cal.App.4th at p. 952.) 

Further, the lower court acted within “ ‘ “the bounds of reason” ’ ” 

in concluding that even after five years, Castillo would still want 

revenge for the murder of a person who was his sibling and a 

fellow Eastlake gang member. (See ibid.)

Next, Castillo argues that “[t]he prosecutor’s assertion that 

the shooting resulted from a ‘confrontation’ between rival gang 

members was . . . without any evidentiary support” because 

“Cardiel . . . was driving alone[ ] in his . . . vehicle[ and] was shot 

at long range with a high-powered rifle.” Nevertheless, Castillo 

concedes that the “[p]olice found the rifle used in the shooting in 

the back yard” and that “DNA on the rifle matched [Castillo’s] 

DNA profile.” It is also undisputed the People offered evidence 

that: Shortly after the shooting, the police found Castillo 

breathing heavily and sweating in a bedroom inside the Marban 

residence, and the police found casings fired from the rifle just 

outside that building. In addition, the People introduced 

evidence that Castillo was an Eastlake gang member, Cardiel 

was a Lincoln Heights gang member who had tattoos indicating 

he was a member of that gang, the shooting occurred in territory 

claimed by the Eastlake gang, and across the street from the 

Marban residence was recently spray-painted graffiti that 

included Castillo’s gang moniker (Swifty) and the name of 

Castillo’s gang. Thus, the trial court acted within the bounds of 

reason in implicitly ruling that the People proffered 
24

circumstantial evidence that the shooting was a confrontation 

between two rival gang members.

Lastly, Castillo’s assertion that the denial of his motion 

“created the impermissible risk that the jury would use evidence 

of [his] criminal propensity as a gang member to substitute for 

proof of the charged crimes” appears to be predicated on his claim 

that there was no “connection between [his] gang affiliation and 

the charged crime . . . .” That premise fails because, as noted 

above, the People offered evidence suggesting that Castillo’s gang 

membership supplied a motive for the shooting. (See Franklin, 

supra, 248 Cal.App.4th at pp. 952–953 [“Bifurcation of gang 

allegations is appropriate where the gang evidence is ‘so 

extraordinarily prejudicial, and of so little relevance to guilt, that 

it threatens to sway the jury to convict regardless of the 

defendant’s actual guilt.’ [Citation.] . . . [¶] [G]ang evidence is 

‘relevant and admissible when the very reason for the underlying 

crime, that is the motive, is gang related.’ [Citation.] ‘ “[B]ecause 

a motive is ordinarily the incentive for criminal behavior, its 

probative value generally exceeds its prejudicial effect, and wide 

latitude is permitted in admitting evidence of its existence.” ’

[Citation.]”].)

In conclusion, we find the trial court did not err in denying 

Castillo’s motion to bifurcate the gang enhancements from the 

trial of the underlying charges.

E. The People Presented Substantial Evidence that 

Castillo Perpetrated the Shooting for the Benefit of a 

Criminal Street Gang

“ ‘In addressing a challenge to the sufficiency of the 

evidence supporting a conviction, the reviewing court must 

examine the whole record in the light most favorable to the 
25

judgment to determine whether it discloses substantial 

evidence—evidence that 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. Ochoa

(2009) 179 Cal.App.4th 650, 656–657 (Ochoa).) In conducting 

this analysis, the reviewing court must “view[ ] all the evidence 

in the light most favorable to the prosecution, and draw[ ] all 

reasonable inferences in favor of the jury’s findings.” (See 

People v. Perez (2017) 18 Cal.App.5th 598, 607 (Perez).)

“[W]e must begin with the presumption that the 

evidence . . . was sufficient, and the defendant bears the burden 

of convincing us otherwise. . . . [¶] . . . [A]n appellate court is ‘not 

required to search the record to ascertain whether it contains 

evidence that will sustain [the appellant’s] contentions.’ 

[Citation.] . . . [¶] . . . [T]he defendant must set forth in his 

opening brief all of the material evidence . . . in the light most 

favorable to the People, and then must persuade us that evidence 

cannot reasonably support the jury’s verdict.” (See People v. 

Sanghera (2006) 139 Cal.App.4th 1567, 1573–1574 (Sanghera).)

This substantial evidence standard applies to sufficiency-ofthe-evidence challenges to enhancements imposed pursuant to 

section 186.22, subdivision (b). (See Ochoa, supra, 

179 Cal.App.4th at pp. 656–657.) Section 186.22, subdivision (b)

authorizes the trial court to enhance a defendant’s prison

sentence if he or she committed a felony “for the benefit of, at the 

direction of, or in association with any criminal street gang, with 

the specific intent to promote, further, or assist in any criminal 

conduct by gang members . . . .” (See § 186.22, subds. (b)(1)

& (b)(4).) 
26

Castillo alleges the People did not offer sufficient evidence 

that he perpetrated the shooting for the benefit of a criminal 

street gang. In support of this claim of error, Castillo seems to 

argue that Detective Cobian’s and Officer Alfaro’s testimony10

that the shooting was gang-related was speculative because there 

was no evidence “that a confrontation between rival gang 

members precipitated the shooting.” For the same reasons we 

found that the trial court did not act arbitrarily, capriciously, or 

in a patently absurd manner in impliedly finding there was 

circumstantial evidence that the shooting was a confrontation 

between two rival gang members, a rational trier of fact could 

have also drawn that inference as well. (See Discussion part D, 

ante; Perez, supra, 18 Cal.App.5th at p. 607 [holding that, in 

reviewing a sufficiency-of-the-evidence challenge, an appellate 

court must “view[ ] all the evidence in the light most favorable to 

the prosecution, and draw[ ] all reasonable inferences in favor of 

the jury’s findings”].)

Further, Officer Cobian testified that an Eastlake gang 

member would be expected to defend territory claimed by his 

gang from a rival gang member who entered his gang’s territory. 

Given the evidence identified in Discussion part D, ante, that

Castillo (an Eastlake gang member) confronted Cardiel (a Lincoln 

Heights gang member) in Eastlake gang territory, the jury could 

reasonably have relied upon Officer Cobian’s testimony to 

10 Although Castillo actually contends that Detective 

Cobian’s and Detective Ramirez’s expert opinions were deficient, 

the Attorney General correctly points out that Castillo actually

intended to refer to Detective Cobian’s and Officer Alfaro’s trial 

testimony.
27

conclude that Castillo committed the instant offenses to defend 

territory claimed by his gang.

Castillo also challenges Officer Alfaro’s testimony that the 

presence of freshly painted Eastlake gang graffiti near the 

shooting indicated that the killing was gang-related. Castillo 

insists that under that logic, “any crime committed in gang 

territory that had been sprayed with graffiti would be 

transformed into a gang-related offense.” Castillo ignores the 

evidence that the freshly-sprayed graffiti bore his gang moniker, 

which suggests that he recently spray painted it. He also 

overlooks Officer Cobian’s testimony that the presence of this 

graffiti indicated that an Eastlake gang member had spray 

painted the wall to claim his gang’s territory. Under these 

circumstances, a rational factfinder could have considered the 

graffiti to be evidence further indicating that Castillo shot 

Cardiel for the purposes of defending Eastlake gang territory 

from one of its rivals.

In sum, Castillo has not shown the jury’s finding that he 

perpetrated the crimes in question to benefit his gang is 

unsupported by substantial evidence. Accordingly, Castillo’s 

insufficiency-of-the-evidence challenge to the gang enhancements 

fails. (See Sanghera, supra, 139 Cal.App.4th at p. 1573 [“[W]e 

must begin with the presumption that the evidence . . . was

sufficient, and the defendant bears the burden of convincing us 

otherwise. . . .”].) 

F. Although the Trial Court Did Not Err in Imposing 

the 15-Year Minimum Parole Eligibility Date, the 

10-Year Gang Enhancements Should Be Stricken

As we noted earlier, the trial court imposed the following 

sentence for Castillo’s conviction for first degree murder: 
28

25 years to life, with a consecutive sentence of 25 years to life 

imposed on that count pursuant to section 12022.53, 

subdivision (d); and a 10-year concurrent enhancement on 

count 1 under section 186.22, subdivision (b)(1)(C) that was 

stayed pursuant to section 654. With regard to Castillo’s 

aggregate prison term, the trial court ruled that, pursuant to

section 186.22, subdivision (b)(5), Castillo could not be paroled 

until he had served a minimum of 15 years of his prison sentence. 

Additionally, in respect to count 2, the trial court imposed, but 

stayed, a 10-year enhancement pursuant to section 186.22, 

subdivision (b)(1)(C). 

Castillo claims that the trial court’s imposition of the

15-year minimum parole eligibility date was an unauthorized 

sentence that must be stricken because he had been sentenced to 

an indeterminate term of 25 years to life. Furthermore, the 

parties agree that we should strike the 10-year gang 

enhancements on counts 1 and 2, respectively. Although we 

accept the parties’ concession regarding the 10-year 

enhancements, (see Artal, supra, 111 Cal.App.4th at p. 275, 

fn. 2), we reject Castillo’s request to strike the 15-year minimum 

parole eligibility date for the reasons discussed below. 

Section 186.22, subdivision (b)(1)(C) states in pertinent 

part: “Except as provided in paragraph[ ] . . . (5), any person who 

is convicted of a felony committed for the benefit of, at the 

direction of, or in association with any criminal street gang, with 

the specific intent to promote, further, or assist in any criminal 

conduct by gang members, shall, upon conviction of that felony, 

in addition and consecutive to the punishment prescribed for the 

felony or attempted felony of which he or she has been convicted, 

be punished as follows: . . . [¶] . . . [¶] If the felony is a violent 
29

felony, as defined in subdivision (c) of Section 667.5, the person 

shall be punished by an additional term of 10 years.” (See 

§ 186.22, subd. (b)(1)(C).) 

As relevant here, subdivision (b)(5) in turn provides: “[A]ny 

person who violates this subdivision in the commission of a felony 

punishable by imprisonment in the state prison for life shall not 

be paroled until a minimum of 15 calendar years have been 

served.” (See § 186.22, subd. (b)(5).)

Although Castillo’s argument on this point is not 

altogether clear, he apparently relies on People v. Herrera (2001) 

88 Cal.App.4th 1353, for the proposition that, “[w]hen a 

defendant is sentenced to 25-years-to-life for first degree murder, 

the minimum fifteen-year parole eligibility of section 186.22, 

subdivision (b)(5), does not apply.”

11 In Herrera, a jury convicted 

a defendant of first degree murder, and found true a firearm 

allegation under section 12022.53, subdivision (d) and a gang 

enhancement allegation under section 186.22, subdivision (b)(1). 

(Herrera, at pp. 1356–1357.) The trial court imposed a prison 

term of 25 years to life, along with a consecutive term of 25 years 

to life for the firearm enhancement, and an additional term of 

3 years for the gang enhancement. (See id. at p. 1357.)

11 Although Castillo cites People v. Harper (2003) 

109 Cal.App.4th 520, for this proposition as well, Harper actually 

arrived at the opposite conclusion. (See Harper, at pp. 522, 527 

[“Because [the defendant] was sentenced to a life term [for first 

degree murder], section 186.22 mandates that the alternate 

punishment of a 15-year minimum parole eligibility be imposed. 

In this case, the 15-year minimum parole eligibility has little 

effect since it is subsumed in the 25-year minimum parole 

eligibility imposed for the underlying murder conviction. 

[Citation.]”].)
30

On appeal, the Herrera court rejected the defendant’s 

argument that the 3-year gang enhancement had to be stricken 

and replaced with a minimum period of imprisonment prior to 

parole of 15 years. (Herrera, supra, 88 Cal.App.4th at p. 1357.) 

The Court of Appeal reasoned that section 186.22, 

subdivision (b)(4) (which has since been moved to subd. (b)(5)) 

was inapplicable because certain amendments to section 190

barred a defendant convicted of murder from being paroled before 

serving 25 years in prison. (See Herrera, at pp. 1357–1365 & 

fns. 2–3.) As a consequence, Herrera affirmed the 3-year 

enhancement and held that the 15-year minimum parole 

eligibility date was inapplicable. (See id. at pp. 1363–1364.)

Our high court later rejected Herrera’s assumption that 

section 190 renders section 186.22, subdivision (b)(5) inapplicable 

to defendants convicted of first degree murder. In People v. Lopez

(2005) 34 Cal.4th 1002, the high court concluded there is no 

inconsistency between these two provisions. Lopez explained 

that “the . . . penalty set forth in section 190—i.e., 25 years to 

life—is [a] proper punishment for [a] defendant’s first degree 

murder conviction,” and “[t]he true finding under 

section 186.22(b)(5), which provides for a lower minimum term, 

‘is a factor that may be considered by the Board of Prison Terms 

when determining a defendant’s release date, even if it does not 

extend the minimum parole date per se.’ [Citation.]” (See Lopez, 

at p. 1009.) “Thus, the fact that section 190 fixes a parole 

eligibility date equal to or greater than that provided by 

section 186.22(b)(5) is neither an absurdity nor an anomaly . . . .” 

(See Lopez, at p. 1009.) 

Because Lopez impliedly disapproved of Herrera’s 

interpretation of the predecessor to section 186.22, 
31

subdivision (b)(5), it would be improper for us to strike Castillo’s

15-year minimum parole eligibility date. (See Tanguilig v. 

Bloomingdale’s, Inc. (2016) 5 Cal.App.5th 665, 673 [“[A]s an 

inferior state court, we are bound to follow the California 

Supreme Court’s holding . . . under the doctrine of stare 

decisis.”].) 
32

DISPOSITION

The judgment is modified as follows: (1) We strike the 

10-year gang enhancement imposed on count 1 under Penal Code 

section 186.22, subdivision (b)(1)(C); and (2) we strike the 10-year 

gang enhancement imposed on count 2 under Penal Code 

section 186.22, subdivision (b)(1)(C). As modified, the judgment 

is affirmed.

Upon the issuance of our remittitur, the trial court is 

directed to prepare a corrected minute order consistent with the 

views expressed in this opinion, amend the abstract of judgment, 

and send certified copies of the amended abstract of judgment to 

the Department of Corrections and Rehabilitation. The clerk of 

the court is directed to send a copy of the opinion and remittitur 

to the Department of Corrections and Rehabilitation. (See 

Cal. Rules of Court, rule 8.272(d)(2).)

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J. FEDERMAN, J.*

* Judge of the San Luis Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.