Filed 7/17/23 P. v. Castro CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

JUAN MANUEL CASTRO,

 Defendant and Appellant.

2d. Crim. No. B322907

(Super. Ct. No. BF179839A)

(Kern County)

A jury convicted appellant Juan Manuel Castro of robbery

(Pen. Code, § 212.5, subd. (a)), possession of ammunition by a 

convicted felon (Id., § 30305, subd. (a)(1)), and attempting to 

dissuade a witness from reporting a crime (Id., § 136.1, subd. 

(b)(1)). In a bifurcated bench trial, the court found true 

allegations that appellant had two prior serious felony 

convictions. It sentenced appellant to an aggregate term of 27 

years, four months in state prison.

Appellant raises three issues. First, he contends the trial 

court violated Evidence Code section 356 by denying his request 
2

to play jurors the complete recordings of his two post-arrest

interviews with law enforcement. Second, he contends the court 

erred by allowing a detective to testify about appellant’s alleged 

gang ties. Third, he requests resentencing on his robbery 

conviction pursuant to Penal Code section 1170, subdivision (b).1 

We affirm the judgment.

FACTS AND PROCEDURAL HISTORY

Irineo Mora called 911 on the night of January 18, 2020, to 

report a robbery at his apartment in Bakersfield’s La Loma 

neighborhood. A woman had knocked on his door and asked for 

money. A man dressed in black then appeared from behind her 

with a handgun. The suspects ordered Mora to kneel on the 

ground while they searched his apartment for valuables. They 

took a TV, laptop, stereo, cell phone, $500 in cash, a pair of pants, 

and Mora’s immigration papers. They also demanded the pin 

number for his Chase Bank debit card. Mora said the man

threatened to “put people from his gang” on him if he spoke to 

police.

Deputy Jose Gamboa of the Kern County Sheriff’s Office 

responded to the 911 call. He helped Mora contact Chase Bank to 

cancel his debit card over the phone. The bank confirmed 

someone had used the card moments earlier at a nearby 

convenience store. Sheriff’s Detective Vidal Contreras later 

obtained images from the store’s surveillance cameras. Mora 

identified the suspects in one of the images. Deputy Gamboa 

recognized the male suspect as appellant and arrested him soon

after. Appellant was carrying an air pistol and a gun magazine 

with .38 caliber ammunition at the time of arrest. 

1 All further statutory references are to the Penal Code 

unless otherwise stated.
3

Deputy Gamboa and Detective Contreras each interviewed

appellant after his arrest. Both interviews were recorded and 

transcribed. Appellant said his ex-girlfriend, Diane Barona,

persuaded him to accompany her to Mora’s apartment. Barona

told him she had visited Mora on four prior occasions and knew 

he liked to “[spend] money on women to do drugs with him.” 

Appellant believed Mora would give them cash so they could 

“make a run” for drugs in exchange for some beer. Appellant

insisted he did not plan to rob Mora because doing so would 

violate the “rules” of the neighborhood. When they entered the 

apartment, though, Barona brandished a plastic handgun and 

began stuffing items into a duffle bag. Appellant admitted taking

$100 from Mora’s wallet but denied threatening him. They left 

and Barona immediately withdrew $40 from a convenience store’s

ATM using the victim’s debit card. Appellant felt like Barona 

“set [him] up” by not telling him in advance about her plan to rob

Mora. 

The People disclosed that Deputy Gamboa and Detective 

Contreras would testify at trial about the post-arrest interviews. 

Appellant moved in limine under Evidence Code section 356 to 

play the complete interview recordings to ensure jurors would 

hear his admissions in context with other statements that 

mitigated his guilt. The trial court denied the motion but 

assured appellant he would have the opportunity to present 

“exculpatory statements contained within the same interview or 

the same conversation to those that are elicited by the People.” 

Appellant argued at trial that Barona tricked him into 

helping her with a robbery. While cross-examining Deputy 

Gamboa, defense counsel asked whether appellant said Barona 

knew the victim before the crime. Gamboa responded, “yes.”
4

Defense counsel followed up with questions about specific things

appellant claimed Barona told him in advance, like how she had 

visited Mora on four occasions and knew he bought drugs for 

prostitutes. The People objected to the statements as double 

hearsay. Appellant responded that the statements were 

admissible for their truth under section 356 to balance the 

officer’s incomplete and misleading version of what appellant said

during his interview. Appellant renewed his request to play the 

complete recordings to jurors. The trial court sustained the 

People’s objections and denied the request. Later, Defense 

counsel asked Detective Contreras on re-cross whether appellant 

“knew for a fact . . . that Mr. Mora solicits girls to come and party 

with him and he buys them drugs.” The court again sustained 

the People’s objections. 

Defense counsel also asked Deputy Contreras whether 

appellant said he would not rob anyone in La Loma because it 

was against the neighborhood’s rules. Contreras confirmed 

appellant said “something like that” and interpreted the 

statement as meaning he would face consequences from the local 

gang. The People asked Contreras on redirect what he 

understood appellant meant by “rules.” Contreras said this 

meant gang rules against robbing people who were not involved 

in drugs or the gang life. The People then asked whether 

appellant saying he was subject to these “rules” caused Contreras 

to “infer [appellant] was part of a gang?” Defense counsel’s 

foundation objection was sustained and the People asked 

Contreras to describe his background, training and experience 

regarding gangs, which he did. The People then repeated their 

question “And so my follow-up question is, based on his response 
5

to the, quote-unquote, rules of this neighborhood, did you believe 

that he was part of a gang?” Contreras answered “Yes.” 

The jury found appellant guilty of robbery and not guilty of 

burglary.2 The court denied his motion for new trial but granted 

his motion to strike one of his prior convictions under People v. 

Superior Court (Romero) (1996) 13 Cal.4th 497.3

DISCUSSION

Evidence Code section 356

Appellant contends the trial court violated Evidence Code 

section 356 by denying his request to play his complete postarrest interviews to the jury. We disagree.

California’s version of the common law “rule of 

completeness” is codified in Evidence Code, section 356.4 The 

purpose of the rule is “‘to prevent the use of selected aspects of a 

conversation, act, declaration, or writing, so as to create a 

misleading impression on the subjects addressed.’” (People v. 

Clark (2016) 63 Cal.4th 522, 600.) “We review the trial court’s 

determination of whether or not to admit evidence under this 

2 The jury deadlocked on a single count of narcotics 

possession. 

3 The trial court denied appellant’s earlier motion for 

mistrial on the same grounds. 

4 Evidence Code, section 356 states: “Where part of an act, 

declaration, conversation, or writing is given in evidence by one 

party, the whole on the same subject may be inquired into by an 

adverse party; when a letter is read, the answer may be given; 

and when a detached act, declaration, conversation, or writing is 

given in evidence, any other act, declaration, conversation, or 

writing which is necessary to make it understood may also be 

given in evidence.”
6

provision for abuse of discretion.” (People v. Cornejo (2016) 3 

Cal.App.5th 36, 73, citing People v. Pride (1992) 3 Cal.4th 195, 

235.)

We agree with the trial court’s remark that offering a 

statement under section 356 does not mean “the remainder of the 

evidence code is tossed aside.” Courts must balance the rules of 

completeness and hearsay when deciding which evidence is 

needed to complete a statement or place it in context. (See People 

v. Armstrong (2019) 6 Cal.5th 735, 786-787, citing People v. 

Melendez (2016) 2 Cal.5th 1, 26 [rule of completeness reflects the 

principle that “a party seeking introduction of one part of a 

statement cannot selectively object to introduction of other parts 

necessary to give context”].) 

The trial court acted well within its discretion when it 

balanced the two rules here. It provided defense counsel wide 

latitude to cross-examine Deputy Gamboa and Detective 

Contreras about the exculpatory portions of appellant’s 

interviews. Jurors heard testimony that Barona visited Mora’s 

apartment prior to the alleged robbery; that appellant

accompanied Barona to the apartment so he could help Mora buy 

drugs, not rob him; that Mora paid appellant $20 to procure the 

drugs; and that Barona, not appellant, initiated the robbery by

pulling out a gun and packing items into a bag. The decision to 

exclude testimony about the exact number of occasions Barona 

had visited the apartment, or about Mora’s purported association 

with prostitutes, did not leave appellant’s statements to law 

enforcement incomplete or misleading. Appellant’s alternate 

narrative, in fact, seems to have prevailed because the jury 

acquitted him of burglary. 
7

Gang Membership

Appellant contends his due process rights were violated 

when Detective Contreras testified he believed appellant was a 

gang member. We again disagree. 

The testimony at issue flowed from questions by defense 

counsel about statements appellant made to Contreras about 

neighborhood “rules.” Defense counsel asked Contreras whether 

appellant stated “there’s not supposed to be robberies of this 

nature” in La Loma. Contreras responded appellant had “alluded 

to something like that.” After reviewing the interview transcript

to refresh his memory, Contreras clarified appellant said “he 

wouldn’t rob anyone like that, and if he did, he would wear a 

mask, and alluded to [there] being consequences from gang 

members if he did that.” Defense counsel asked again whether 

appellant specifically mentioned there were “rules against that.” 

Contreras responded, “Something to that [effect], yes.” 

The issue arose again on redirect examination. The People 

asked, “what are these rules that you understood [defense 

counsel] was referring to?” Contreras responded that in the 

context of the interview he understood the statement to mean 

appellant “would not be able to commit robberies like that

because it would have consequences from the local gang of 

robbing someone that wasn’t involved in drugs, or involved in the 

gang life, that would somewhat be of a civilian stature.” This 

response drew an objection from defense counsel as lacking 

foundation. The People addressed the objection by eliciting 

testimony about Contreras’s gang-specific training and 

experience, then proceeded to ask whether he believed appellant

belonged to a gang based on the statements about neighborhood 

rules. Appellant did not object. Contreras answered in the 
8

affirmative. On recross examination he conceded appellant did 

not use the term “gang” or expressly admit belonging to one. 

Courts “must ‘carefully scrutinize’ gang-related testimony 

before admitting it into evidence because the content of such 

testimony ‘may have a highly inflammatory impact on the jury.’”

(People v. Flores (2020) 9 Cal.5th 371, 402, quoting People v. 

Williams (1997) 16 Cal.4th 153, 193.) “The risk of injecting 

undue prejudice is particularly high in cases where the 

prosecution has not charged a gang enhancement and the 

probative value of the gang evidence is minimal.” (Flores at 

p. 402, citing People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) 

Detective Contreras’s brief testimony about appellant’s alleged 

gang membership, however, did not unduly prejudice appellant.

The victim had already testified that appellant threatened to “get 

his gang on me.” Defense counsel raised the issue again when he 

asked Contreras about the “rules” in Mora’s neighborhood. The 

People were entitled to ask on redirect how and why those rules 

applied to appellant. The possible minimal prejudice that may 

have resulted was outweighed by its probative value. (See e.g., 

Flores at p. 402 [prejudice resulting from gang evidence 

outweighed by its probative value; expert testimony about gang 

culture was “highly relevant to defendant’s possible motive for 

the charged crimes”].) 

Sentencing Error

The trial court imposed the upper term of six years on 

appellant’s robbery conviction, which it then doubled based on a 

prior serous felony conviction. (§§ 667, subd. (e), 1170.12, subd. 

(c)(1).) Appellant contends, and the Attorney General concedes

both that Senate Bill No. 567’s amendments to Penal Code 

section 1170, subdivision (b) apply retroactively to the sentence
9

on this charge and that its application requires remand for 

resentencing. (Sen. Bill No. 567 (2021-2022 Reg. Sess.) § 1.)5 We 

agree the law applies retroactively but disagree its application 

requires resentencing

Former section 1170, subdivision (b) gave trial courts 

discretion to decide which of the three terms specified for an 

offense would best serve the interests of justice. Senate Bill No. 

567 amended subdivision (b) to require imposing the middle term 

as the presumptive sentence effective January 1, 2022. (§ 1170, 

subd. (b)(1)-(2); Stats. 2021, ch. 731, § 1.3.) A court may now 

impose the upper term only if “there are circumstances in 

aggravation of the crime that justify the imposition of a term of 

imprisonment exceeding the middle term, and the facts 

underlying those circumstances have been stipulated to by the 

defendant, or have been found true beyond a reasonable doubt at 

trial by the jury or by the judge in a court trial.” (§ 1170, subd. 

(b)(2).) Subdivision (b)(3) creates an exception, allowing the court 

to “consider the defendant's prior convictions in determining 

sentencing based on a certified record of conviction without 

submitting the prior convictions to a jury.” (§ 1170, subd. (b)(3).) 

The trial court cited five aggravating factors when it 

imposed the upper term on appellant’s robbery conviction: 

(1) appellant’s prior convictions as an adult were numerous (Cal. 

Rules of Court, rule 4.421(b)(2)); (2) he had served four prior 

prison terms (rule 4.421(b)(3)); (3) he was on Post-Release 

Community Supervision when he committed the crime (rule

5 We requested supplemental briefing regarding whether 

the error was harmless. Appellant filed a letter brief, 

Respondent did not.
10

4.421(b)(4)); (4) his prior performance on probation was 

unsatisfactory in that he failed to comply with terms or 

reoffended (rule 4.421(b)(5)); and (5) he had an active warrant for 

his arrest at the time of the offense (rule 4.421(b)(5)). 

The trial court found only one of the five aggravating 

factors true beyond a reasonable doubt as required by amended 

section 1170. Factor 1 was established by certified copies of 

appellant’s prior felony convictions. The remaining factors were 

evidenced only by the sentencing report. This was not a certified 

record of conviction. (People v. Dunn (2022) 81 Cal.App.5th 394, 

408–409 (Dunn), review granted Oct. 12, 2022, S275655.) Given 

this error, we must determine whether it was harmless under 

both federal and state standards. (People v. Zabelle (2022) 80 

Cal.App.5th 1098, 1109–1110 (Zabelle)) [error alone not ground 

for reversal].)

We apply a two-step analysis for determining whether the 

error was harmless: (1) whether the court could impose the 

aggravated term under the Sixth Amendment, applying the 

standard set forth in Chapman v. California (1967) 386 U.S. 18, 

in the manner described in People v. Sandoval (2007) 41 Cal.4th

825, 839; and (2) whether the court would impose the aggravated 

term under section 1170 applying the standard set forth in People 

v. Watson (1956) 46 Cal.2d 818. (Zabelle, supra, 80 Cal.App.5th 

at p. 1112.) 

In step one, we ask whether a jury unquestionably would 

have found true beyond a reasonable doubt at least one of the 

aggravating factors the trial court relied on in imposing the 

aggravated sentence. (Zabelle, supra, 80 Cal.App.5th at pp. 

1112-1113.) The answer here is “yes.” The trial court found, 

beyond a reasonable doubt, that appellant suffered two prior 
11

convictions after considering certified records of those 

convictions. We have no doubt a jury would have reached the 

same conclusion. Thus, there was no Sixth Amendment error.

In step two, we must consider whether it is reasonably

probable that the jury would have found each aggravating factor 

“not true.” If any aggravating factors survive this inquiry, we 

must then determine “whether it is reasonably probable that the 

trial court would have chosen a lesser sentence” had it considered 

these surviving factors. (Zabelle, supra, 80 Cal.App.5th at 

p. 1112.) We conclude it is not reasonably probable the jury 

would have found factors two through five not true. They are not 

“vague” or “subjective,” (People v. Sandoval (2007) 41 Cal.4th 

825, 840 [it is more difficult for a reviewing court to conclude a 

jury would assess the aggravating fact in the same manner as the 

trial court when the fact rests on a somewhat vague or subjective 

standard]) and they were undisputed. (See People v. Epps (2001) 

25 Cal.4th 19, 29 [finding the denial of a statutory right to a jury 

trial on a prior conviction harmless where the only factual 

question for the jury was whether the prior convictions occurred, 

and the defendant did not question this fact].) Defense counsel 

even admitted while arguing in a pre-sentence motion to strike 

that his client had “numerous offenses.” His supporting 

declaration stated appellant “suffered two strike prior 

convictions” and had a long criminal history including “petty drug 

offenses, misdemeanor spousal abuse, felony assault, receiving 

stolen property, vehicle theft, passing false checks, and trespass.” 

Finally, going beyond the two-step harmless error analysis, 

we conclude “the record clearly indicates that the court would 

have imposed an upper term under its new, circumscribed 

discretion.” (People v. Lewis (2023) 88 Cal.App.5th 1125, 1137, 
12

review granted May 17, 2023, S279147.) The trial court 

ultimately struck one prior conviction, a 1991 robbery, but did 

not strike more recent ones. It explained: “considering the 

current circumstances, [appellant’s] criminal history, including 

the age of the 1991 strike, including the circumstances of that 

strike, including the sentence that was imposed, and including 

consideration for the fact that it is still possible for the Court to 

impose a significant and substantial sentence in this case.” 

(Italics added.) The court added, “That does not mean I’m 

striking [the prior 1991 strike] for purposes of imposition of the 

667(a). That is, in fact, part of my consideration, that I still have 

the opportunity to impose that five-year enhancement as part of 

the overall sentence in this matter.” This shows the court 

partially granted the motion to strike with the intention of 

reaching a substantial sentence based upon the aggravated term.

“[T]he record clearly indicates that the trial court would have 

imposed the same sentence under the new law.” (People v. Lewis

(2023) 88 Cal.App.5th 1125, 1137.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

CODY, J.

We concur:

YEGAN, Acting P.J. BALTODANO, J.
David R. Zulfa, Judge

Superior Court County of Kern

______________________________

Jeffrey S. Kross, under appointment by the Court of 

Appeal, for Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Michael P. Farrell, Senior Assistant 

Attorney General, Eric L. Christoffersen, Supervising Deputy 

Attorney General, and Ross K. Naughton, Deputy Attorney 

General, for Plaintiff and Respondent.