Filed 12/2/20 P. v. Castellano CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

LINDA LIZETT CASTELLANO,

Defendant and Appellant.

 B296119

 (Los Angeles County

 Super. Ct. No. YA097909)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Laura C. Ellison and Victor L. Wright, Judges. 

Affirmed as modified.

Jason Szydlik, 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, David E. Madeo and Peggy Z. Huang, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

Linda Lizett Castellano appeals from the judgment of 

conviction entered after a jury found her guilty of one count of 

assault with a semiautomatic firearm. The jury also found true 

the allegations Castellano committed the crime for the benefit of 

a criminal street gang and used a firearm in the commission of 

the crime.

On appeal, Castellano contends there was not sufficient 

evidence the firearm was loaded to support her conviction. She 

also argues the trial court erred in failing sua sponte to instruct 

the jury on the lesser included offense of assault with a firearm. 

She further requests we remand for the trial court to conduct a 

hearing on her ability to pay the assessments and fines imposed 

by the trial court, in accordance with our opinion in People v. 

Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Finally, Castellano 

contends, the People concede, and we agree the minute order 

from the sentencing hearing reflects the imposition of a criminal 

protective order that was not part of the trial court’s oral 

pronouncement of judgment and should be stricken.

We order the minute order modified to strike the reference 

to a criminal protective order and otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The People’s Case

1. The assault of Munoz

About 6:45 a.m. on March 14, 2018 Ismael Munoz 

Rodriguez1 was standing on the sidewalk along Buford Avenue in 

1 Following the parties’ practice at trial, we refer to Ismael 

Munoz Rodriguez as Munoz.
3

the Lennox area of Los Angeles County. Munoz, who lives on 

Buford Avenue, was preparing to cross the street to reach his 

parked car to go to work. As Munoz was about to cross the street, 

a four-door Nissan drove by, the rear window came down, and a 

woman in a hooded sweatshirt said something Munoz could not 

understand.

Munoz crossed the street, got into his car, and drove off. 

The Nissan then turned around and pulled up next to Munoz’s 

car while he was stopped at a stop sign. The woman in the rear 

passenger seat of the Nissan, whom Munoz later identified as 

Castellano,2 raised her arm, pointed a gun at Munoz through the 

open window, and said, “Fuck Lennox[.] Tepas.” Munoz 

understood Castellano’s statement was “gang talk,” and he was 

frightened. Castellano was about six or seven feet from Munoz 

when she pointed the gun at him. Munoz testified he “wasn’t 

going to stand [t]here and let her fire it,” and after a few seconds, 

he drove off.

Munoz testified Castellano’s gun “was a black color. It was 

like a semi-automatic.” Asked what he meant when he said the 

gun was a semiautomatic, Munoz testified, “It was the kind of 

gun that police use.” When the prosecutor asked whether Munoz 

knew what a revolver was, Munoz responded, “Yes.” Munoz 

agreed a revolver looked “[l]ike those cowboy guns.” Munoz 

described Castellano’s gun as flat, without a cylinder in the 

middle like a revolver.

2 Munoz identified Castellano in a photographic lineup and 

at trial.
4

2. The incident at Felton Elementary School

Sandra Marroquin was a teacher at Felton Elementary 

School in the Lennox area of Los Angeles County. About 

7:30 a.m. on March 14, 2018 Marroquin was walking toward the 

school’s gate when she was approached by a woman who was 

trembling and nervous. The woman told Marroquin she had just 

seen some men get out of a car and “put[] a gun on this kid.”3 

The woman asked for Marroquin’s cell phone number so she could 

send Marroquin a photograph she had taken of the men’s car. 

The woman sent Marroquin the photograph, which Marroquin 

forwarded to the school principal and later showed it to the 

police. The woman told Marroquin the driver of the car was 

female.

3. The investigation

Shortly after 6:45 a.m. on March 14, 2018 Los Angeles 

County Sheriff’s Department (LASD) Deputy Erik Felix 

responded to a call regarding Munoz’s assault. Deputy Felix took 

Munoz’s statement and photographed the scene on Buford 

Avenue. About an hour later Deputy Felix was dispatched to 

Felton Elementary School, about half a mile away, where he 

interviewed Marroquin regarding the second incident. 

Marroquin showed Felix the photograph of the vehicle she had 

received from the unidentified woman. The vehicle was a Nissan 

3 After an Evidence Code section 402 hearing, the trial court 

ruled Marroquin’s testimony concerning the unidentified 

woman’s statement was admissible under the hearsay except for 

spontaneous statements (Evid. Code, § 1240). Castellano does 

not challenge that ruling on appeal.
5

Maxima with a California license plate number that matched the 

license plate of the vehicle owned by Castellano.

Later that night or early the next morning, Sheriff’s 

Deputy Alex Partida stopped a silver Nissan Maxima matching 

the description of the car involved in the Felton Elementary 

School incident. Castellano’s sister Silvia was driving the car. 

The car was towed and held for evidence and fingerprinting. On 

March 22, Castellano called the LASD South Los Angeles station 

and stated she wanted her car released to her. When Castellano 

came into the station to retrieve her car, she was detained and 

searched. A sheriff’s deputy recovered Castellano’s cell phone 

during the search, and forensic detectives obtained photographs 

and text messages from the phone.

4. Gang expert testimony

Detective David Chevez, a gang investigator for the LASD 

South Los Angeles area, testified as the People’s gang expert. 

Detective Chevez testified with respect to Hispanic street gangs 

that upon initiation into a gang, the gang member operates as a 

“soldier.” Once the soldier “put[s] in” work by committing crimes 

for the gang, he or she can move up to a higher status, and “the 

more violent the crimes you commit the higher status you’re able

to attain.” Respect from fellow gang members and fear within 

the community are important to gangs and their members. Fear 

within the community allows gangs to operate because it 

discourages community members from reporting crimes out of 

fear of retaliation. Gang members put in the work by committing 

violent crimes like murder, attempted murder, and carjackings, 

but also lesser crimes such as tagging with graffiti. A gang 
6

member’s reputation for violence allows the member to commit 

more crimes because victims will not want to come forward.

Respect from rival gangs is also important, and it allows 

gangs to “protect their turf.” Sometimes gang members will 

commit crimes in rival territory to show disrespect for the rival 

gang. Detective Chevez explained, “[W]hen a rival goes into 

enemy territory, it’s usually to put in work to commit crimes, 

shoot people, rob people, tag, vandalize.” Members may even 

“announce” these crimes by committing them in daylight in front 

of witnesses. Rival gang members deem such intrusions as a “big 

form of disrespect.”

Detective Chevez was familiar with the Tepa 13 gang and 

had investigated crimes committed by its members, including 

felony possession of firearms, burglaries, robberies, carjackings, 

vehicle theft, assaults, attempted murders, and murders. Tepa 

13 members sometimes use the shortened name “Tepa.” Tepa 13 

operates principally within the City of Inglewood.

The Lennox 13 gang is Tepa 13’s biggest rival. Tepa 13 and 

Lennox 13 have had an ongoing feud since the 1970’s, and rival 

members “shoot at each other all the time.” Lennox 13’s territory 

includes the Lennox area west of Hawthorne Boulevard—to the 

west of Tepa 13’s territory. The attack on Munoz occurred “deep 

within Lennox 13 territory.” Felton Elementary School is also 

within Lennox 13 territory.

Detective Chevez opined Castellano was an active member 

of Tepa 13 based on her tattoos and photographs recovered from 

her phone showing her posing with gang members with weapons 

displaying gang signs. Castellano was at the “soldier” level. 

Detective Chevez testified based on a hypothetical mirroring the 

facts of the case that the assault would have been committed to 
7

benefit Tepa 13. Detective Chevez explained, “I believe someone 

pointing a gun at someone else yelling, ‘Fuck Lennox. Tepas.’ 

That [victim] is probably going to tell his neighbor, his significant 

other, his children, he’s probably going to tell of the incident, and 

that alerts the community, ‘Hey, Tepas just banged on Lennox.’” 

Further, committing a crime in broad daylight increases the 

boldness of the crime and benefits the gang “because it gives the 

gang [a] very violent reputation.” “[B]anging” on an individual in 

rival territory would also “show[] the rival gang, which is Lennox 

13 in this case, ‘Hey, this is your hood and we’re going to come 

into your hood, and disrespect your hood, and we’re not scared of 

you.’”

On cross-examination, Detective Chevez admitted that if a 

gang member “banged on” someone in rival territory who was not 

a member of the rival gang, the nonmember would typically be 

able to walk away without further violence. However, on redirect 

examination, Detective Chevez qualified his response and 

testified that if the encounter with the nonmember were to occur 

in rival gang territory and the non-member “were to just walk 

away, or put up some type of resistance[,] then something would 

happen.”

Detective Chevez also testified he and most police officers 

carry a semiautomatic firearm, which is “the opposite of a 

revolver” and “is automatically fed [ammunition] with a 

magazine.” This is in contrast to a revolver, which shoots about 

five or six shots and has a round cylinder.

B. The Defense Case

Castellano testified she had been a member of Tepa 13 

when she was a child because the men in her family were 
8

members, but she left the gang in 2013. Castellano admitted she 

owned a Nissan Maxima matching the license plate number 

shown in the photograph received by Marroquin. But she 

testified she was asleep at home on the morning of March 14, 

2018, and she denied driving through Lennox, displaying a gun, 

threatening anyone, or saying, “F[uck] Lennox. Tepas.”

Castellano’s sister, Kristine Ramoz Perez, testified 

Castellano lived with her, and when Perez left for work at 

6:40 a.m. on March 14, 2018, Castellano’s car was parked on the 

street. Further, Castellano was not a morning person and was 

likely to have been sleeping. Perez also testified that in 2018 

Castellano was not a gang member.

C. The Rebuttal Case

In rebuttal, Detective Chevez identified text messages sent 

in March 2018 that had been retrieved from Castellano’s cell 

phone, in which Castellano was greeted as “Tepa” and the death 

of a Tepa 13 member was discussed. Detective Chevez also 

identified a photograph taken of Castellano on November 12, 

2017 in which Castellano did not have any tattoos on her face, 

and a photograph taken on January 3, 2018 that showed 

Castellano with Tepas 13 gang tattoos visible on her face. The 

text messages and photographs were admitted into evidence.

D. Jury Instructions, Verdict, and Sentence

The trial court instructed the jury on assault with a 

semiautomatic firearm, as follows: “In order to prove this crime, 

each of the following elements must be proved: [¶] [1.] A person 

was assaulted; [¶] and; [¶] [2.] The assault was committed 

with a semiautomatic firearm. [¶] In order to prove an assault, 
9

each of the following elements must be proved: [¶] [1.] A person 

willfully committed an act which by its nature would probably 

and directly result in the application of physical force on another 

person; [¶] [2.] The person committing the act was aware of 

facts that would lead a reasonable person to realize as a direct 

natural and probable result of this act that physical force would 

be applied to another person; [¶] and [¶] [3.] At the time the 

act was committed, the person committing the act had the 

present ability to apply physical force to the person of another. 

[¶] A semiautomatic firearm is a firearm that extracts a fired 

cartridge and chambers a fresh cartridge with each single pull of 

the trigger.” Castellano’s attorney did not request an instruction 

on the lesser included offense of assault with a firearm.

The jury found Castellano guilty of assault with a 

semiautomatic firearm (Pen. Code,4 § 245, subd. (b); count 1) and 

found true she committed the offense for the benefit of, at the 

direction of, or in association with a criminal street gang 

(§ 186.22, subd. (b)(1)(C)) and used a firearm in the commission of 

the offense (§ 12022.5). On February 25, 2019 the trial court 

sentenced Castellano to nine years in state prison comprised of 

the middle term of six years for assault with a semiautomatic 

firearm and the lower term of three years for the firearm 

enhancement. The court imposed and stayed a 10-year sentence 

for the gang enhancement. The court also imposed a $40 court 

operations assessment (§ 1465.8, subd. (a)(1)), a $30 criminal 

conviction assessment (Gov. Code, § 70373), a $300 restitution 

fine (Pen. Code, § 1202.4, subd. (b)), and a parole/postrelease 

4 All further undesignated statutory references are to the 

Penal Code.
10

community supervision restitution fine in the same amount, 

which the court suspended (Pen. Code, § 1202.45). Castellano did 

not object to imposition of the fines and assessments or raise her 

inability to pay.

The trial court’s February 25, 2019 minute order states the 

criminal protective order that had been issued under section 

136.2 on June 6, 2018 would remain in effect through June 6, 

2021. However, the reporter’s transcript shows the trial court did 

not address the protective order during the sentencing hearing.

Castellano timely appealed.

DISCUSSION

A. Substantial Evidence Supports Castellano’s Conviction of 

Assault with a Semiautomatic Firearm

1. Standard of review

“When a defendant challenges the sufficiency of the 

evidence for a jury finding, we review the entire record in the 

light most favorable to the judgment of the trial court. We 

evaluate whether substantial evidence, defined as reasonable and 

credible evidence of solid value, has been disclosed, permitting 

the trier of fact to find guilt beyond a reasonable doubt.” (People 

v. Vargas (2020) 9 Cal.5th 793, 820; accord, People v. Penunuri 

(2018) 5 Cal.5th 126, 142 (Penunuri) [“‘To assess the evidence’s 

sufficiency, we review the whole record to determine whether any 

rational trier of fact could have found the essential elements of 

the crime or special circumstances beyond a reasonable doubt.’”].) 

“‘“Conflicts and even testimony [that] is subject to justifiable 

suspicion do not justify the reversal of a judgment, for it is the 

exclusive province of the trial judge or jury to determine the 
11

credibility of a witness and the truth or falsity of the facts upon 

which a determination depends. [Citation.] We resolve neither 

credibility issues nor evidentiary conflicts; we look for substantial 

evidence.”’” (Penunuri, at p. 142; accord, People v. Mendez (2019) 

7 Cal.5th 680, 703.)

“‘“The standard of review is the same in cases in which the 

prosecution relies mainly on circumstantial evidence.”’” (People 

v. Vargas, supra, 9 Cal.5th at p. 820; accord, People v. Rivera

(2019) 7 Cal.5th 306, 324.) “‘We presume in support of the 

judgment the existence of every fact the trier of fact reasonably 

could infer from the evidence. [Citation.] If the circumstances 

reasonably justify the trier of fact’s findings, reversal of the 

judgment is not warranted simply because the circumstances 

might also reasonably be reconciled with a contrary finding.’” 

(People v. Westerfield (2019) 6 Cal.5th 632, 713; accord, Penunuri, 

supra, 5 Cal.5th at p. 142 [“‘A reversal for insufficient evidence 

“is unwarranted unless it appears ‘that upon no hypothesis 

whatever is there sufficient substantial evidence to support’ ” the 

jury’s verdict.’”].)

2. Assault with a semiautomatic firearm

“An assault is an unlawful attempt, coupled with a present 

ability, to commit a violent injury on the person of another.” 

(§ 240.)5 “Assault requires the willful commission of an act that 

by its nature will probably and directly result in injury to another 

(i.e., a battery), and with knowledge of the facts sufficient to 

5 Section 245, subdivision (b) provides, “Any person who 

commits an assault upon the person of another with a 

semiautomatic firearm shall be punished by imprisonment in the 

state prison for three, six, or nine years.”
12

establish that the act by its nature will probably and directly 

result in such injury.” (People v. Miceli (2002) 104 Cal.App.4th 

256, 269; accord, People v. Murray (2008) 167 Cal.App.4th 1133, 

1139.) “To point a loaded gun in a threatening manner at 

another . . . constitutes an assault, because one who does so has 

the present ability to inflict a violent injury on the other and the 

act by its nature will probably and directly result in such injury.” 

(Miceli, at p. 269.) Conversely, “[a] long line of California 

decisions holds that an assault is not committed by a person’s 

merely pointing an (unloaded) gun in a threatening manner at 

another person,” because without evidence the gun was loaded, 

the proof is insufficient a defendant had the present ability to 

inflict a violent injury. (People v. Rodriguez (1999) 20 Cal.4th 1, 

11, fn. 3 (Rodriguez); Penunuri, supra, 5 Cal.5th at p. 147; Miceli,

at p. 269; People v. Lochtefeld (2000) 77 Cal.App.4th 533, 542 

(Lochtefeld).)

“A defendant’s own words and conduct in the course of an 

offense may support a rational fact finder’s determination that 

[the defendant] used a loaded weapon.” (Rodriguez, supra, 

20 Cal.4th at p. 13; see People v. Mearse (1949) 93 Cal.App.2d 

834, 837 [“The acts and language used by an accused person 

while carrying a gun may constitute an admission by conduct 

that the gun is loaded.”].) “[T]he fact that the gun was loaded 

may be inferred from circumstantial evidence, and we will uphold 

an assault conviction if the inference is reasonable.” (Penunuri, 

supra, 5 Cal.5th at p. 147; see Rodriguez, at p. 11, fn. 3 [“[W]e 

address the required quantum of circumstantial evidence 

necessary to demonstrate present ability to inflict injury and thus 

to sustain a conviction of assault with a firearm.”].)
13

Rodriguez is instructive. There, the defendant, a gang 

member, threatened a witness to a shooting the defendant had 

committed the previous day. (Rodriguez, supra, 20 Cal.4th at 

pp. 7-8.) Confronting the witness, the defendant “raised his shirt, 

revealing a gun in his waistband. When [the witness] remained 

standing in place, defendant took out his gun, put the barrel just 

under [the witness’s] chin, and told him to keep quiet because ‘I 

could do to you what I did to them.’” (Id. at p. 7.) The Court of 

Appeal reversed the defendant’s assault conviction, observing the

gun from the prior day’s shooting was never recovered, and 

therefore the gun the defendant used must have been different 

because the defendant would have logically disposed of the 

murder weapon. (Id. at p. 12.) The Supreme Court reversed the 

judgment of the Court of Appeal, criticizing the appellate court 

for focusing “on what it found lacking in the prosecution’s case 

and the strength of the inferences it drew from the evidence 

presented, rejecting contrary (but, in our view, equally logical) 

inferences the jury might have drawn.” (Ibid.) Because the 

defendant told the witness “‘I could do to you what I did to 

them,’” “the jury could reasonably have interpreted the warning 

as an admission by defendant of his present ability to harm [the 

witness].” (Ibid.) And while the absence of evidence the 

defendant sought out the witness “might tend to support a 

conclusion contrary to that reached by this jury, [that] absence 

does not so undermine the jury’s reasoning as to warrant 

overturning its verdict.” (Id. at p. 14.)

The Supreme Court in Rodriguez cited with approval 

People v. Montgomery (1911) 15 Cal.App. 315, 317-319, in which 

the Court of Appeal held that despite the absence of direct 

evidence the gun used in an assault was loaded and defendant’s 
14

testimony it was not, the jury could have reasonably found the 

gun was loaded based on evidence the defendant was enraged 

when he left a fight with the victim and later returned and 

declared, “‘I have got you now,’” as he pointed a gun at the victim. 

(Rodriguez, supra, 20 Cal.4th at p. 13; see Lochtefeld, supra, 

77 Cal.App.4th at pp. 541-542 [defendant’s displaying the handle 

of a gun and threatening to shoot a woman if she did not move, 

then later pointing a gun at police officers with his finger on the 

trigger was sufficient evidence from which the jury could infer 

the gun was operable].)

3. Substantial evidence supports the jury’s conclusion 

Castellano’s gun was loaded

Castellano contends there was not substantial evidence to 

support an inference the gun used in the assault on Munoz was 

loaded. The evidence was sufficient. As discussed, the People 

presented evidence Castellano was a “soldier” in the Tepa 13 

gang who entered “deep within Lennox 13 territory,” rolled down 

her car window, and pointed a gun at Munoz while declaring her 

gang affiliation and cursing the rival Lennox 13 gang. As 

Detective Chevez testified, when a gang member goes into rival 

territory, “it’s usually to put in work to commit crimes,” including 

to shoot people. Further, Castellano made the threat openly 

during the daytime, which would disrespect the rival gang. Tepa 

13 and Lennox 13 were feuding archrivals whose members “shoot 

at each other all the time.” Although Detective Chevez testified a 

gang member would not generally fire a gun at someone who was 

not a gang member, if the nonmember walked away or resisted, 

“then something would happen.” Further, by disrespecting 

Lennox 13, Castellano’s conduct could have provoked a violent 
15

response from a member of Lennox 13 in the area at the time of 

Castellano’s “banging” on Munoz. Based on this evidence, the 

jury could reasonably have concluded Castellano would not have 

entered Lennox 13 territory and confronted Munoz in a manner 

that disrespected Lennox 13 by pointing an unloaded gun 

because she needed to be prepared to respond to a possible 

violent response. (See Rodriguez, supra, 20 Cal.4th at p. 13; 

Lochtefeld, supra, 77 Cal.App.4th at p. 542.)

Castellano contends Rodriguez and Lochtefeld are 

distinguishable because in those cases the defendants expressly 

threatened to shoot the victims. But even if the absence of 

specific threats to shoot could have supported a finding the gun 

was not loaded, it does not mean there was not substantial 

evidence to the contrary. (Rodriguez, supra, 20 Cal.4th at p. 14.)

B. The Trial Court Did Not Have a Duty To Instruct the Jury 

on the Lesser Included Offense of Assault with a Firearm

1. Applicable law and standard of review

“Under California law, trial courts must instruct the jury 

on lesser included offenses of the charged crime if substantial 

evidence supports the conclusion that the defendant committed 

the lesser included offense and not the greater offense.” (People 

v. Gonzalez (2018) 5 Cal.5th 186, 196; accord, People v. Smith 

(2013) 57 Cal.4th 232, 239 [even in the absence of a request, a 

trial court must instruct “‘on lesser included offenses when the 

evidence raises a question as to whether all of the elements of the 

charged offense were present [citation], but not when there is no 

evidence that the offense was less than that charged’”]; People v. 

Breverman (1998) 19 Cal.4th 142, 154-156.) “The jury’s exposure 

to ‘the full range of possible verdicts—not limited by the strategy, 
16

ignorance, or mistake of the parties . . . ensure[s] that the verdict 

is no harsher or more lenient than the evidence merits.’” 

(Gonzalez, at p. 196; accord, Smith, at p. 239 [“‘[T]he rule 

prevents either party, whether by design or inadvertence, from

forcing an all-or-nothing choice between conviction of the stated 

offense on the one hand, or complete acquittal on the other.’”].)

“‘“[T]he existence of ‘any evidence, no matter how weak’ will 

not justify instructions on a lesser included offense, but such 

instructions are required whenever evidence that the defendant 

is guilty only of the lesser offense is ‘substantial enough to merit 

consideration’ by the jury.”’” (People v. Wyatt (2012) 55 Cal.4th 

694, 698; accord, People v. Landry (2016) 2 Cal.5th 52, 96 

[“‘Substantial evidence in this context is evidence from which a 

reasonable jury could conclude that the defendant committed the 

lesser, but not the greater, offense.’”].) “In this regard, the 

testimony of a single witness, including that of a defendant, may 

suffice to require lesser included offense instructions.” (Wyatt, at 

p. 698.) However, the trial court has no duty to instruct on a 

lesser included offense where “it would be speculative at best to 

construe the trial evidence . . . as supporting a verdict of only [the 

lesser offense].” (Id. at p. 704.) 

We independently review whether the trial court 

erroneously failed to instruct on a lesser included offense. (People 

v. Trujeque (2015) 61 Cal.4th 227, 271; People v. Wang (2020) 

46 Cal.App.5th 1055, 1069.) In determining whether the trial 

court erred, we consider the evidence in the light most favorable 

to the defendant. (People v. Cortez (2018) 24 Cal.App.5th 807, 

811; People v. Brothers (2015) 236 Cal.App.4th 24, 30.)
17

2. The trial court had no duty to instruct the jury on 

assault with a firearm because there was no evidence 

Castellano committed an assault with a firearm that 

was not semiautomatic

Castellano contends the trial court erred in not instructing 

the jury sua sponte on the lesser included offense of assault with 

a firearm (§ 245, subd. (a)(2)). Castellano is correct that assault 

with a firearm is a lesser included offense of assault with a 

semiautomatic firearm. (People v. Martinez (2012) 

208 Cal.App.4th 197, 199.) But there was not sufficient evidence 

to support a finding by the jury Castellano committed an assault 

with a firearm that was not semiautomatic.

The record contains substantial evidence the gun used to 

assault Munoz was semiautomatic. Munoz, who was only six or 

seven feet from Castellano, testified Castellano’s gun was “like a 

semi-automatic.” Asked what made him think the gun was 

semiautomatic, Munoz explained, “It was the kind of gun that 

police use.” Munoz testified he knew what revolvers looked like, 

describing them as having a cylinder in the middle, “[l]ike those 

cowboy guns.” By contrast, Castellano’s gun was flat and did not 

have a cylinder in the middle. Munoz’s testimony was 

corroborated by Detective Chevez, who testified he and most 

police officers carry semiautomatic firearms. Detective Chevez 

explained a semiautomatic gun is “the opposite of a revolver,” 

which has a round cylinder. He added that a semiautomatic gun 

automatically feeds ammunition from the magazine. 

Castellano identifies no contrary evidence that the gun was 

not semiautomatic, nor did his attorney expose weaknesses in 

Munoz’s testimony through cross-examination. Instead, 

Castellano argues Munoz’s testimony did not establish he had the 
18

expertise to determine whether the gun “extracts a fired 

cartridge and chambers a fresh cartridge with each single pull of 

the trigger,” which is the definition of a semiautomatic firearm in 

the jury instructions. But recourse to the technical definition of a 

semiautomatic firearm was not necessary here because Munoz 

testified the gun was semiautomatic based on his description of 

the gun as flat, like those used by the police, without a round 

cylinder, which Detective Chevez confirmed describes a 

semiautomatic gun, not a revolver. Detective Chevez also 

testified a semiautomatic firearm is one that “is automatically fed 

[ammunition] with a magazine.”

Castellano also contends Detective Chevez did not testify 

that all flat guns are semiautomatic, although he testified 

semiautomatic weapons were the “opposite” of revolvers, which 

have round cylinders. Had Castellano presented evidence that 

flat guns could be nonsemiautomatic guns, this would be 

sufficient to support a conclusion Castellano committed the lesser 

offense of assault with a firearm and not the greater offense of 

assault with a semiautomatic firearm. But she did not, nor did 

she otherwise challenge Detective Chevez’s testimony. The 

absence of an opinion by Detective Chevez as to the possibility of 

a hypothetical flat, nonsemiautomatic gun is not evidence 

“‘“‘substantial enough to merit consideration’ by the jury.”’” 

(People v. Wyatt, supra, 55 Cal.4th at p. 698; accord, People v. 

Landry, supra, 2 Cal.5th at p. 96.)

C. Remand Is Not Warranted for an Ability-to-pay Hearing on 

the Fines and Assessments Imposed by the Trial Court

Castellano contends she is entitled to an ability-to-pay

hearing as to the fines and assessments imposed by the trial 
19

court, relying on this court’s opinion in Dueñas, supra,

30 Cal.App.5th 1157. Castellano acknowledges Dueñas was filed 

on January 8, 2019—six weeks before her sentencing hearing on 

February 23, 2019—but she argues forfeiture should not apply 

because her counsel was unaware of the decision and Dueñas

marked a dramatic change in the law implicating her 

fundamental right to due process. Forfeiture is proper here.

In Dueñas, this court concluded “the assessment provisions 

of Government Code section 70373 and Penal Code section 

1465.8, if imposed without a determination that the defendant is 

able to pay, are . . . fundamentally unfair; imposing these 

assessments upon indigent defendants without a determination 

that they have the present ability to pay violates due process 

under both the United States Constitution and the California 

Constitution.” (Dueñas, supra, 30 Cal.App.5th at p. 1168; accord, 

People v. Belloso (2019) 42 Cal.App.5th 647, 654-655 (Belloso), 

review granted Mar. 11, 2020, S259755.)6 In contrast to court 

6 Several Courts of Appeal have applied this court’s analysis 

in Dueñas (e.g., People v. Santos (2019) 38 Cal.App.5th 923, 929-

934; People v. Kopp (2019) 38 Cal.App.5th 47, 95-96, review 

granted Nov. 13, 2019, S257844 [applying due process analysis to 

court assessments]; People v. Jones (2019) 36 Cal.App.5th 1028, 

1030-1035), or partially followed Dueñas (e.g., People v. Valles

(2020) 49 Cal.App.5th 156, 162-163, review granted July 22, 

2020, S262757 [concluding due process requires ability-to-pay 

hearing before imposition of court facilities fee, not restitution 

fines]). Other courts have rejected this court’s due process 

analysis (e.g., People v. Cota (2020) 45 Cal.App.5th 786, 794-795; 

People v. Kingston (2019) 41 Cal.App.5th 272, 279-281; People v. 

Hicks (2019) 40 Cal.App.5th 320, 326, review granted Nov. 26, 

2019, S258946), or concluded the imposition of fines and fees 
20

assessments, a restitution fine under section 1202.4, subdivision 

(b), “is intended to be, and is recognized as, additional 

punishment for a crime.” (Dueñas, at p. 1169; accord, Belloso, at 

p. 655.)7 Section 1202.4, subdivision (c), expressly provides a 

defendant’s inability to pay a restitution fine may not be 

considered as a “compelling and extraordinary reason” not to 

impose the statutory minimum fine. However, as this court held 

in Dueñas, to avoid the serious constitutional questions raised by 

imposition of such a fine on an indigent defendant, “although the 

trial court is required by . . . section 1202.4 to impose a 

restitution fine, the court must stay the execution of the fine until 

and unless the People demonstrate that the defendant has the 

ability to pay the fine.” (Dueñas, at p. 1172; accord, Belloso, at 

p. 655.)

should be analyzed under the excessive fines clause of the Eighth 

Amendment (e.g., People v. Cowan (2020) 47 Cal.App.5th 32, 42, 

review granted June 17, 2020, S261952; People v. Aviles (2019) 

39 Cal.App.5th 1055, 1061; Kopp, at pp. 96-97 [applying excessive 

fines analysis to restitution fines]). The Supreme Court granted 

review of the decision in Kopp to decide the following issues: 

“Must a court consider a defendant’s ability to pay before 

imposing or executing fines, fees, and assessments? If so, which 

party bears the burden of proof regarding defendant’s inability to 

pay?” (Supreme Ct. Minutes, Nov. 13, 2019, p. 1622; see Kopp, 

supra, 38 Cal.App.5th 47.)

7 Our analysis of restitution fines under section 1202.4, 

subdivision (b), also applies to parole/postrelease community 

supervision restitution fines under section 1202.45, because these 

fines must be imposed “in the same amount as that imposed 

pursuant to subdivision (b) of Section 1202.4.” (§ 1202.45, subd. 

(a).)
21

In People v. Castellano (2019) 33 Cal.App.5th 485, 489 

(Castellano), we held a defendant’s failure to object to the 

imposition of fines and fees before Dueñas was filed does not 

constitute forfeiture of that issue. As we explained, “[N]o 

California court prior to Dueñas had held it was unconstitutional 

to impose fines, fees or assessments without a determination of 

the defendant’s ability to pay. . . . When, as here, the defendant’s 

challenge on direct appeal is based on a newly announced 

constitutional principle that could not reasonably have been 

anticipated at the time of trial, reviewing courts have declined to 

find forfeiture.” (Castellano, at p. 489; accord, Belloso, supra, 

42 Cal.App.5th at p. 662; People v. Santos (2019) 38 Cal.App.5th 

923, 931-932; People v. Johnson (2019) 35 Cal.App.5th 134, 137-

138; contra, People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 

[defendant forfeited challenge by not objecting to the assessments 

and restitution fine at sentencing]; People v. Frandsen (2019) 

33 Cal.App.5th 1126, 1153-1154 [same].)

The People contend, and we agree, Castellano forfeited her 

challenge because Castellano was sentenced six weeks after 

Dueñas was decided. Unlike in Castellano, her challenge on 

appeal is not “based on a newly announced constitutional 

principle that could not reasonably have been anticipated at the 

time of trial.” (Castellano, supra, 33 Cal.App.5th at p. 489.) 

Additionally, there are no special circumstances or legal issues 

that would warrant us to exercise our discretion to excuse 

forfeiture. (In re S.B. (2004) 32 Cal.4th 1287, 1293 [“application 

of the forfeiture rule is not automatic,” although “the appellate 

court’s discretion to excuse forfeiture should be exercised rarely 

and only in cases presenting an important legal issue”]; Unzueta 
22

v. Akopyan (2019) 42 Cal.App.5th 199, 215 [“‘[N]either forfeiture 

nor application of the forfeiture rule is automatic.’”].)

D. The February 25, 2019 Minute Order Must Be Corrected To 

Strike Reference to a Continuing Criminal Protective Order

Castellano contends, the People concede, and we agree the 

February 25, 2019 minute order must be corrected to strike any 

reference to a criminal protective order extending through 

June 6, 2021 because the order lacks statutory authorization and 

is not reflected in the trial court’s oral pronouncements at the 

sentencing hearing.

The trial court8 issued the criminal protective order at a 

pretrial hearing on June 6, 2018 pursuant to section 136.2, which 

permits a court to enter orders to protect witnesses and victims. 

(§ 136.2, subd. (a)(1) [court may issue criminal protective order 

“[u]pon a good cause belief that harm to, or intimidation or 

dissuasion of, a victim or witness has occurred or is reasonably 

likely to occur”]; People v. Selga (2008) 162 Cal.App.4th 113, 118.) 

“[P]rotective orders issued under section 136.2 [are] operative 

only during the pendency of the criminal proceedings and as 

prejudgment orders.”9 (Selga, at pp. 118-119; accord, People v. 

Ponce (2009) 173 Cal.App.4th 378, 382.) Thus, the statement in 

the February 25, 2019 minute order that the criminal protective 

order would continue in effect until June 6, 2021 was erroneous.

8 Judge Victor Wright.

9 Section 136.2, subdivision (i), allows a criminal protective 

order to remain in place for up to 10 years in specified 

circumstances not applicable here.
23

In addition, there is no reference to a protective order in 

the reporter’s transcript of the February 25, 2019 sentencing 

hearing. “The record of the oral pronouncement of the court 

controls over the clerk’s minute order . . . .” (People v. Farell

(2002) 28 Cal.4th 381, 384, fn. 2, accord, People v. Sanchez (2019) 

38 Cal.App.5th 907, 919.) Appellate courts may correct clerical 

errors in a clerk’s minute order to reflect the court’s oral 

pronouncement. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) 

Accordingly, we order the February 25, 2019 minute order 

corrected to strike any reference to a criminal protective order.

DISPOSITION

We order the February 25, 2019 minute order corrected to 

strike any reference to a criminal protective order. We otherwise 

affirm.

FEUER, J.

I concur:

RICHARDSON, J.*

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.
SEGAL, Acting P. J., Concurring and Dissenting.

I agree that, with the evidence Castellano declared her 

gang affiliation and cursed a rival gang when she pointed a 

firearm at Munoz, there was substantial evidence the gun 

Castellano pointed was loaded (although I don’t think it matters 

she made the gang challenge during the daytime) and that 

Castellano committed the crime of assault with a semiautomatic 

firearm. But without that evidence the question whether 

substantial evidence supported the finding the gun was loaded is 

a closer call. Absent evidence of the gang challenge, we would 

essentially be holding that, any time a gang member points a 

gun, jurors may presume it is loaded, at least when the gang 

member is in rival gang territory. 

In my view, however, the trial court erred in not 

instructing the jury on the lesser included offense of assault with 

a (not necessarily semiautomatic) firearm. Munoz did say that 

the firearm he saw “was like a semiautomatic” gun and that he 

thought it was semiautomatic because it looked more like the 

guns he has seen police use than those he has seen cowboys use. 

Hardly an expert opinion, but admissible and relevant to the 

issue whether the firearm Castellano pointed at him was a 

semiautomatic firearm. But there was no evidence Munoz had 

any experience with firearms or riding the range; his opinion was 

essentially speculation based on observing police officers and 

watching movies and television shows about cowboys. In 

addition, Munoz only saw the gun for a “matter of seconds” from 

six to seven feet away. While Detective David Chevez did say 

most police officers use semiautomatic firearms, he did not say all 
2

of them do.10 By not instructing the jury on the lesser included 

offense of assault with a firearm, the court improperly presented 

“the jury with ‘an “unwarranted all-or-nothing choice”’” (People v. 

Eid (2014) 59 Cal.4th 650, 657): convicting Castellano of assault 

with a semiautomatic firearm or, even if the jurors believed the 

People proved beyond a reasonable doubt the firearm Munoz saw 

for a few seconds was a firearm but not a semiautomatic one, 

acquitting her. (See People v. Vargas (2020) 9 Cal.5th 793, 827

[“A trial court must instruct a jury on lesser included offenses 

when the evidence raises questions regarding whether every 

element of a charged offense is present.”]; People v. Richards

(2017) 18 Cal.App.5th 549, 559-560 [trial court erred in not 

instructing on a lesser included offense where the jury could have 

found the People did not prove one or two elements of the greater 

offense]; People v. Walker (2015) 237 Cal.App.4th 111, 116-117

[trial court erred in not instructing on possession of marijuana, as 

a lesser included offense of possession of marijuana for sale, 

where “[w]ithout a simple possession instruction, the jury had 

only two choices: convict on the felony sales count or acquit 

altogether,” which “is precisely the all-or-nothing choice [the 

Supreme Court] concluded was improper,” and “the jury should 

10 The official website for the Los Angeles Police Department 

identifies the guns officers “are authorized to use, as their on 

duty primary weapon.” (<https://www.lapdonline.org/

i_want_to_know [as of Nov. 30, 2020], archived at 

<https://perma.cc/DEK8-KCU9>.) None of them appears to be a 

revolver. But the statement on the website is carefully limited to 

an officer’s “primary” weapon. As we all know from the movies 

and television shows Munoz watches, officers often carry a 

“secondary” weapon in an ankle holster, shoulder holster, or 

other concealed area.
3

have been instructed on a third choice, to wit, simple 

possession”].) 

In concluding the trial court did not have a duty to instruct 

on the lesser included offense of assault with a firearm, the 

majority states the “record contains substantial evidence the gun 

used to assault Munoz was semiautomatic.” (Maj. opn. ante, at 

p. 17.) I agree with the latter statement, but the majority’s 

conclusion does not follow from it. Certainly Munoz’s testimony 

was substantial evidence the gun he saw was semiautomatic. 

But that’s not the test for determining whether the trial court 

has a duty to instruct on a lesser included offense. The correct 

test is not whether there was substantial evidence to support the 

verdict, but whether there was substantial evidence from which a 

reasonable factfinder could have found the defendant guilty of 

the lesser but not the greater offense. (See People v. Breverman

(1998) 19 Cal.4th 142, 178, fn. 25 [“That the jury chose the 

greater over acquittal, and that the evidence technically permits 

conviction of the greater, does not resolve the question whether, 

‘after an examination of the entire cause, including the evidence’

(Cal. Const., art. VI, § 13), it appears reasonably probable the 

jury would nonetheless have elected the lesser if given that 

choice.”]; People v. Brown (2016) 245 Cal.App.4th 140, 155 [“‘it 

does not matter that the jury chose to convict the defendant of 

the greater offense over acquittal or that the defendant was 

convicted of the greater offense on sufficient evidence’”]; People v. 

Woods (2015) 241 Cal.App.4th 461, 475 [“the question is not

whether substantial evidence supports [the defendant’s]

conviction on the greater offenses,” but “whether, in assessing 

and weighing the evidence independently, the jury could have 

reasonably concluded that [the defendant] committed” the lesser 
4

offense].) The two inquiries are quite different. Although there 

was substantial evidence Castellano committed an assault with a 

semiautomatic firearm, there was also substantial evidence she 

committed an assault with a non-semiautomatic firearm. (See 

People v. Huggins (2006) 38 Cal.4th 175, 215 [“‘When there is 

substantial evidence that an element of the charged offense is 

missing, but that the accused is guilty of a lesser included 

offense, the court must instruct upon the lesser included offense, 

and must allow the jury to return the lesser conviction, even if 

not requested to do so.’”]; People v. Campbell (2020) 

51 Cal.App.5th 463, 501 [same].) 

I acknowledge the trial court does not have a duty to 

instruct on a lesser included offense if “there is no proof, other 

than an unexplainable rejection of the prosecution’s evidence, 

that the offense was less than that charged . . . .” (People v. Kraft

(2000) 23 Cal.4th 978, 1063; see People v. Walker, supra, 

237 Cal.App.4th at p. 117.) But rejection of the prosecution’s 

evidence here was easily explainable. The prosecution did not 

recover the firearm or present any expert testimony about 

firearms in general, the difference between semiautomatic and 

other kinds of firearms, or even what kind of firearm Castellano 

may have used. There was only one witness—with no evidence of 

his knowledge of or expertise in firearms—led by a prosecutor on 

direct examination to say the gun was flat and not the kind of 

gun used in the Wild West. The trial court did not instruct the 

jury to consider, in determining whether Castellano used a 

semiautomatic firearm, what kinds of guns cops and cowboys use. 

The court instructed the jury that a “semiautomatic firearm is a 

firearm that extracts a fired cartridge and chambers a fresh 

cartridge with each single pull of the trigger,” and there was no 
5

evidence of any of that. It does not take much to explain why one 

or more jurors could have rejected this evidence as proving 

beyond a reasonable doubt that Castellano used a semiautomatic 

firearm.

Finally, on the issue of prejudice, there is a reasonable 

probability the jury would have convicted Castellano of assault 

with a firearm had the court instructed on that lesser included 

offense. (See People v. Gonzalez (2018) 5 Cal.5th 186, 200, fn. 4 

[“[People v. Watson (1956) 46 Cal.2d 818] applies to the failure to 

instruct on lesser included offenses”].) Given the relatively weak 

testimony about what the gun looked like, the absence of any 

expert testimony about different kinds of firearms and how to tell 

them apart, and the failure to recover the gun Castellano used, 

the jury easily could have found that the People proved beyond a 

reasonable doubt that the weapon Castellano pointed at Munoz 

was a firearm, but that the People did not prove beyond a 

reasonable doubt it was a semiautomatic firearm. 

For these reasons, I would reverse the judgment with 

directions to allow the People to retry Castellano on the charge of 

assault with a semiautomatic firearm, with the court giving an 

instruction on the lesser included offense of assault with a 

firearm, or to accept a reduction of her conviction to the lesser 

offense. (See People v. Richards, supra, 18 Cal.App.5th at 

pp. 560-561 [“When a greater offense must be reversed, but a 

lesser included offense could be affirmed, ‘we give the prosecutor 

the option of retrying the greater offense, or accepting a reduction 

to the lesser offense.’”].) Castellano would have an opportunity to 

request a hearing on her ability to pay any fines or fees the court 

imposes at resentencing.

SEGAL, Acting P. J.