Filed 11/3/21 P. v. Castillo CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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.

MITCHELL CASTILLO,

Defendant and Appellant.

 B304930

 (Los Angeles County

 Super. Ct. No. BA463608)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Mildred Escobedo, Judge. Affirmed.

Derek K. Kowata, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Stacy S. Schwartz and Joseph P. Lee, Deputy 

Attorneys General, for Plaintiff and Respondent.

__________________________________
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Mitchell Castillo appeals from a judgment of conviction for 

first degree murder and carjacking, contending the trial court 

erred in admitting hearsay testimony and evidence of uncharged 

acts. We affirm.

BACKGROUND

Castillo stole a pickup truck from Ricardo Mota in a public 

parking structure, running over and killing Mota in the process.

He was arrested a few hours later in San Fernando Valley, 

standing next to the truck, and the parking attendant came to 

identify him. Mota’s DNA was found on Castillo’s clothing, the 

truck, and the parking structure. Castillo’s DNA was found in 

the truck.

At trial, Castillo’s defense was that he meant only to steal 

the truck, not to injure Mota.

Raul Infante, the parking attendant, testified that Mota 

often parked his truck in the public structure. At 5:46 p.m. on 

December 11, 2017, Infante observed Castillo walk past the 

parking booth to the elevator. The encounter was captured on 

time-stamped surveillance footage, which was played for the jury. 

Twelve minutes later, a catering van stopped at the booth prior to 

exiting and the driver said that two men were arguing and 

fighting on the roof. 

Infante saw Castillo exit the structure driving Mota’s truck. 

The surveillance footage showing that this occurred at 6:02:31 

p.m. Seven seconds later, at 6:02:38 p.m., a red Saturn with two 

construction workers stopped at the booth, and one of the 

workers pointed at Mota’s truck ahead of him and said that the 

driver had gotten into a fight with the truck’s owner and took the 

truck and ran over the owner. The construction workers were 

never identified or located. 
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Infante found Mota lying on the ground of the rooftop 

parking lot. Mota died at the scene from multiple blunt force 

injuries consistent with him having been hit by a truck. 

Castillo was convicted of first degree murder (Pen. Code, 

§ 187)1 and carjacking (§ 215), and it was found true that he had 

suffered two prior serious or violent strike convictions 

(§§ 1170.12, subd. (b); 667, subds. (b)-(j)) and two prior serious 

felony convictions (§ 667, subd. (a)), and had served four prior 

prison terms (§ 667.5, subd. (b)). The court sentenced him to an 

indeterminate term of 85 years to life, comprising 25 years to life 

for first degree murder, tripled pursuant to the “Three Strikes”

law, plus five years for each of the two prior serious felony 

convictions. The court stayed the sentence on the carjacking 

count pursuant to section 654 and imposed various fines and fees. 

DISCUSSION

A. Evidence of Uncharged Misconduct

Castillo contends the trial court erred in admitting 

evidence of four prior uncharged acts. We disagree.

1. Relevant Proceedings

During trial, the prosecution moved to admit evidence of 

five uncharged incidents where Castillo was observed either 

stealing or preparing to steal a car:

On October 9, 2011, a Beverly Hills police officer stopped 

Castillo while he was driving a stolen Lexis.

On October 24, 2012, a Los Angeles Police Department 

officer observed Castillo in a parking lot, carrying a backpack and 

looking into the driver’s side window of a black 1995 Chevy 

1 All undesignated statutory references will be to the Penal

Code.
4

Camaro. He had in his possession a pair of black gloves, a nail 

file, a pair of black brass knuckles, and a pair of pliers. 

On April 11, 2014, at around 4:00 a.m., a security guard for 

the Church of Scientology on Hollywood Boulevard and Ivar

Avenue observed Castillo “checking out cars” on Ivar. He 

eventually dropped his backpack behind a car, crossed the street, 

and put on brass knuckles to break a car’s window, backing away 

only after a street sweeper drove by. He was arrested nearby in 

possession of the brass knuckles.

On June 22, 2014, a security guard at a parking structure 

observed Castillo looking into multiple parked vehicles.

Castillo’s defense counsel objected to the evidence on the 

ground that its unduly prejudicial effect substantially outweighed 

its probative value. Counsel argued, “I am not contesting the 

intent aspect of the People’s [Evidence Code section] 1101(b) 

evidence because the car was taken, the witnesses saw 

purportedly my client driving the car out. So the taking is not an 

issue. That’s why I argue under [Evidence Code section] 352. [¶] 

The other aspect of it, the People argued common plan. And it’s 

the same argument. It’s not in issue. The People I think they’re 

going under felony murder. I don’t know for sure. [¶] Because if 

they can get the murder either by implied malice. I am going to 

argue implied malice; that he engaged in conduct that was 

dangerous and led to the victim’s death. He may argue felony 

murder. So my contention about the other crimes evidence is 

we’re not disputing that [Castillo] was there, because they have 

DNA evidence. The victim’s blood is on [Castillo’s] pants. 

[Castillo’s] DNA is in the car. Officers retrieve[d] car keys from 

[Castillo]. 
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The trial court found that the evidence was admissible 

under Evidence Code section 1101, subdivision (b), and did not 

contravene Evidence Code section 352, stating: “[The] Court is 

inclined to permit it. [The] Court is not inclined to permit Mr. 

Przelomiec to go on for days and days and days about these 

individual acts and inciden[ts] that he had. I think Mr. 

Przelomiec has the experience enough to know that he brings in 

whatever information he needs and leaves it at that. So I am 

inclined to introduce it and make use of it. That will be admitted 

and Court overrules the [Evidence Code section] 352 objection.” 

The court instructed the jury not to “conclude from this 

eviden[c]e that the defendant has a bad character or is disposed 

to commit crime,” and instructed that the evidence of prior 

actions was “not sufficient by itself to prove that the defendant 

[was] guilty of counts 1 and or 2.” 

2. Legal Principles

Absent a statutory exception, relevant evidence is 

admissible. Evidence is relevant if it has any tendency in reason 

to prove or disprove any disputed fact of consequence to the 

determination of an action. (Evid. Code, § 210.)

However, evidence of a specific instance of a person’s 

conduct is inadmissible when offered to prove his or her conduct 

on a specified occasion. (Evid. Code, § 1101, subd. (a).) But such 

evidence is admissible if relevant to prove some material fact 

other than the defendant’s disposition to commit a crime, such as 

intent. (Evid. Code, § 1101, subd. (b); People v. Kelly (2007) 42 

Cal.4th 763, 783.) Evidence of uncharged conduct is relevant to 

prove intent where the conduct is “sufficiently similar to support 

the inference that the defendant ‘ “probably harbor[ed] the same 
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intent in each instance.” ’ ” (People v. Ewoldt (1994) 7 Cal.4th 

380, 402.) 

Because evidence of an uncharged offense is highly 

prejudicial, it must have considerable probative value, and the 

trial court must carefully analyze it under Evidence Code section 

352 to determine whether its probative value is “substantially 

outweighed by the probability that its admission [would] . . . 

create substantial danger of undue prejudice, of confusing the 

issues, or of misleading the jury.” (Evid. Code, § 352; see People 

v. Ewoldt, supra, 7 Cal.4th at p. 404; see also People v. Humiston

(1993) 20 Cal.App.4th 460, 481 [“evidence of prior bad acts 

always involves the risk of prejudice regardless of its probative 

value”].)

A trial court’s admission or exclusion of evidence will not be 

disturbed on appeal “except on a showing that the court exercised 

its discretion in an arbitrary, capricious or patently absurd 

manner that resulted in a manifest miscarriage of justice.” 

(People v. Jordan (1986) 42 Cal.3d 308, 316.)

3. Application

Here, the prior incidents “have a direct logical nexus” to 

Castillo’s intent to steal Mota’s truck (People v. Demetrulias

(2006) 39 Cal.4th 1, 15), as they all involved Castillo either 

driving a stolen car or preparing to steal one. Castillo’s prior 

activities tended in reason to establish the absence of accident or 

mistake in taking Mota’s truck.

The unduly prejudicial impact of the evidence potentially 

arose from its tendency to imply that Castillo had a bad character 

or was disposed to commit crime. But the court instructed the 

jury not to consider the evidence for these purposes, and we 
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presume the jury understood and followed the instruction. 

(People v. Hinton (2006) 37 Cal.4th 839, 864.)

Further, admission of the evidence of prior incidents had 

little tendency to confuse the issues or inflame the jury. The 

incidents were recent, having occurred within six years of the 

current offenses, and were far less inflammatory than the 

carjacking and murder, reducing the possibility that the jury’s 

passions would be aroused by the uncharged conduct.

We therefore conclude that the trial court acted within its 

discretion in finding the probative value of the evidence of 

Castillo’s prior conduct was not substantially outweighed by any 

unduly prejudicial effect it might have had.

Castillo argues evidence of his prior conduct tended to 

prove only his intent to steal Mota’s truck, not to confront Mota 

or engage in violence. He argues that the probative value of the 

evidence was therefore nonexistent because he expressly declined 

to contest the issue of intent. We disagree.

Carjacking has five elements: (1) taking a motor vehicle 

while it is (2) in the immediate possession of another, (3) against 

his or her will, with (4) intent to permanently or temporarily 

deprive the person in possession of the car, by (5) using force or 

fear. (§ 215, subd. (a).) 

We acknowledge that Castillo’s defense counsel expressly 

declined to contest the issue of intent, stating he did so “because 

the car was taken, the witnesses saw purportedly my client 

driving the car out. . . . I am going to argue implied malice; that 

he engaged in conduct that was dangerous and led to the victim’s 

death. . . . [W]e’re not disputing that [Castillo] was there, 

because they have DNA evidence. The victim’s blood is on 
8

[Castillo’s] pants. [Castillo’s] DNA is in the car. Officers 

retrieved car keys from [Castillo].

But in pleading not guilty, Castillo put each of the elements 

of carjacking at issue notwithstanding his concession on the issue 

of intent to steal Mota’s truck. (People v. Balcom (1994) 7 Cal.4th 

414, 422-423; Estelle v. McGuire (1991) 502 U.S. 62, 69

[defendant’s decision not to contest one element of an offense does 

not relieve the prosecution of its burden to prove every element of 

the crime].) Therefore, although Castillo’s identity and intent to 

steal the truck were not contested, they were still at issue, and 

the evidence of uncharged offenses was probative on those issues. 

Because the evidence took little time to present, there was no 

probability that its admission necessitated undue consumption of 

time. Because the evidence was no more inflammatory than the 

evidence that Castillo ran over and killed Mota, we cannot 

conclude that any unduly prejudicial effect its admission may 

have had substantially outweighed its probative value.

B. Hearsay

Castillo contends the trial court erred in admitting an

unidentified construction worker’s statement—as related by

Infante—to the effect that Castillo ran over Mota. We disagree.

1. Relevant Proceedings

Before trial, the prosecution moved to admit a construction 

worker’s hearsay statement that the driver of the truck just 

ahead of him in the parking structure had taken the truck from 

the owner and then ran over him. The trial court concluded the 

statement was admissible under Evidence Code section 1240 as a 

spontaneous utterance. 

At trial, Infante testified that seconds after Castillo exited 

the parking structure, a red Saturn stopped at the parking booth 
9

and one of the occupants pointed at Mota’s truck and said that 

the guy driving it “actually drove the victim’s car[, and] had just 

gotten into a fight with him, took his car and, like, ran him over 

with the truck.” 

2. Legal Principles

Hearsay evidence is a statement made by a witness not 

testifying at the hearing and offered to prove the truth of the 

matter asserted. (Evid. Code, § 1200, subd. (a).) Hearsay is 

inadmissible unless an exception applies. (Evid. Code, § 1200, 

subd. (b).) 

“Evidence of a statement is not made inadmissible by the 

hearsay rule if the statement: [¶] (a) Purports to narrate, 

describe, or explain an act, condition, or event perceived by the 

declarant; and [¶] (b) Was made spontaneously while the 

declarant was under the stress of excitement caused by such 

perception.” (Evid. Code, § 1240.) “ ‘To render [statements] 

admissible [under the spontaneous declaration exception] it is 

required that (1) there must be some occurrence startling enough 

to produce this nervous excitement and render the utterance 

spontaneous and unreflecting; (2) the utterance must have been 

before there has been time to contrive and misrepresent, i.e., 

while the nervous excitement may be supposed still to dominate 

and the reflective powers to be yet in abeyance; and (3) the 

utterance must relate to the circumstance of the occurrence 

preceding it.’ ” (People v. Poggi (1988) 45 Cal.3d 306, 318.) 

Statements made under the immediate influence of an occurrence 

to which they relate are deemed sufficiently trustworthy to be 

presented to the jury based on the common understanding “ ‘that 

in the stress of nervous excitement the reflective faculties may be 

stilled and the utterance may become the unreflecting and 
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sincere expression of one’s actual impressions and belief.’ ” 

(Showalter v. Western Pac. R. Co. (1940) 16 Cal.2d 460, 468.)

Whether the requirements of Evidence Code section 1240 

have been met is a question of fact largely within the discretion of 

the trial court. (People v. Cowan (2010) 50 Cal.4th 401, 462.)

3. Application

Here, the construction worker saw Castillo fight with Mota, 

steal his truck, and run him over with it, which the worker 

related to Infante only moments later. A person being run over 

by a truck is an extreme and upsetting event. It was within the 

trial court’s discretion to find this to have been a recent event 

that was startling enough to produce nervous excitement in the 

worker, and therefore to allow his statements to go to the jury.

Castillo argues there was no evidence that the worker who 

spoke to Infante actually saw the events leading to Mota’s death, 

as he could have heard about them second-hand, either from the 

other occupant of the Saturn or someone else. We disagree.

DNA evidence and Castillo’s possession of Mota’s truck 

showed that Castillo stole the truck and ran over Mota before 

exiting the parking structure. The Saturn was literally seven 

seconds behind Castillo, who was still in view when the Saturn 

pulled up to Infante. The trial court could reasonably infer from 

this sequence of events that (1) any incident witnessed by the 

other occupant of the Saturn would have been witnessed by the 

speaker, and (2) there was no time for the speaker to have 

learned of the incident from some other third party.
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DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

BENDIX, Acting P. J.

CRANDALL, 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.