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Filed 3/2/21 P. v. Castro CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

HECTOR CASTRO,

Defendant and Appellant.

C089101

(Super. Ct. No. 17FE007268)

Defendant, Hector Castro, stands convicted of rape, sodomy, corporal injury on a 

cohabitant, false imprisonment, and making criminal threats. He appeals arguing that the 

convictions must be reversed because the prosecutor’s closing argument repeatedly 

misstated the inference the jury could draw from defendant’s alleged prior acts of 

domestic violence and sexual assault, thus violating his right to “due process, effective 

assistance of counsel, and a fundamentally fair jury trial.” We disagree with his 

contention, but remand the matter for the limited purpose of requiring the trial court to 
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select and impose a specific prison term for defendant’s conviction for criminal threats

and then to stay execution thereof pursuant to Penal Code section 654. (Statutory section 

references that follow are to the Penal Code unless otherwise stated.)

FACTS AND PROCEDURAL HISTORY

Because of the limited issues on appeal, we briefly recount the factual history of 

this matter with further facts to be provided as needed in the discussion section.

At trial, the People presented the testimony of the victim, S.D, who said that she 

began dating defendant in 2012, while she was a college student. Defendant introduced 

her to webcam “modeling” wherein defendant and the victim would engage in sexual 

activities, which would be broadcast to paying subscribers. He later convinced S.D. that 

she would be more profitable if she performed sexual activities on her own, which she 

did. 

The couple’s romantic relationship continued for a few more years, and they 

continued to live together thereafter. By 2017, they were no longer dating, but were 

living together with separate bedrooms in an apartment S.D. rented for them in 

Sacramento. S.D. financially supported defendant, who she thought was mentally 

unstable. For example, defendant claimed to suffer from penile cancer, although he had 

not seen a physician and had claimed he was Jesus and that the couple was living in a 

reality TV show. When S.D. disagreed with defendant, he accused her of being an actor. 

The People also presented S.D.’s testimony regarding uncharged domestic 

violence and sexual offenses when the couple lived in Arizona and also in Sacramento. 

When they lived in Arizona in 2016, S.D. paid for their 4,000 square foot house and 

otherwise supported defendant (who was unemployed) with her webcam pornography 

business. He threatened to tell her family about that business and also threatened to hurt 

her family. 
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Each day, S.D. would take breaks from her webcamming to prepare meals for 

defendant, who sometimes would throw the food on the ground and demand another 

meal. Around mealtimes and at other times, defendant would demand S.D. orally 

copulate him. If she refused, they would fight. Defendant also sodomized S.D. against 

her will. Defendant threatened that if S.D. did not consent by a designated time, he 

would “do it anyway.” One time, defendant stated, “todays [sic] the day, so get ready or 

not.” S.D. resisted., but eventually gave in so as to avoid more physical fighting. 

Also in Arizona, defendant threatened her with a gun, placing it in her mouth. He 

further physically abused her, causing injuries that S.D. documented in photos. These 

injuries included scratching and bruising from his strangling her, a bite mark on her 

shoulder, bruising on her arms from being punched, bruising on her legs from being 

kicked, bruising around her eye from being hit in the face, and a bump on her head from 

defendant punching her. S.D. worried she would die every time she fought with 

defendant. 

When they returned to Sacramento in 2017, S.D. selected the apartment she did 

because she knew a lot of people and thought if she and defendant fought, someone might 

help her or call the police. S.D. continued cooking, cleaning, and supporting defendant 

financially with her webcamming even though they were no longer dating. While in 

Sacramento, defendant forced S.D. both to orally copulate him and engage in sexual 

intercourse daily. S.D. did not want to engage in these acts, but defendant told her she 

had no choice because she “belonged to him.” In Sacramento, defendant became more 

physical when engaging in his physical abuse. He started hitting and kicking the same 

places so that S.D.’s injuries would not fully heal. S.D. would use make-up or special 

clothing to cover her injuries. She was only allowed to close her bedroom door when 

working and was forbidden from locking it. Defendant also threatened to kill S.D. and 

her family. 
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As to the charged conduct of April 2017, S.D. testified to playing a video game 

one evening online with a female and male friend. Defendant became angry after 

watching her delete a text from one of her friends. He took the phone and dragged her 

from her bed into the living room. S.D. told defendant she wanted to leave, and he 

responded by kicking, punching, slapping, and strangling her while telling her she was 

not allowed to leave. S.D. tried to fight back, but ended up curled up as this was the 

worst fight they had ever had. Defendant hit her with a closed fist four or five times and 

kicked her in the side and back. Defendant restrained S.D. by putting his foot on her face 

and then choked her, threatening to kill her. Defendant produced a loaded gun, which he 

held first against her head and then his own, threatening that he would kill them both. 

Eventually, defendant put the gun away and apologized. 

Defendant insisted S.D. accompany him to his room where they smoked marijuana 

and fell asleep. When she woke up, S.D. returned to her room. Approximately 30 

minutes later, defendant came to her room. He was naked, angry, and demanding that 

S.D. perform oral sex on him. S.D. did not want to comply and told him so. When he 

failed to respond, she acquiesced, performing the requested act. When she was done, 

defendant left the room and returned with a large kitchen knife. He pointed the knife at 

her vagina and threatened that he would stab her if she did not allow him to have anal sex 

with her. S.D. felt threatened and that she did not have a choice, so she allowed him to 

first penetrate her vagina for lubrication and then to penetrate her anus with his penis. 

Afterwards, S.D. told defendant she wanted to leave, but defendant blocked and then 

locked the door, telling her she could not leave and would be beaten if she did. 

Defendant later apologized and returned her phone. S.D. gathered some sheets 

and clothing and told defendant she was going to do laundry. After loading the washing 

machine, she grabbed a bag with her wallet, phones, and keys and fled the apartment. 

She called 911 from the car and eventually met an officer who transported her for a 

sexual assault exam. That exam disclosed injuries consistent with a “history of 
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penetrating assault” and also consistent with forcible sexual assault after being physically 

assaulted. Numerous physical injuries were observed on her person consistent with the 

abuse reported. 

Defendant testified in his own defense, admitting that he kicked, slapped, grabbed, 

and scratched S.D. on the day in question. He denied punching her with a closed fist or 

strangling her. Defendant also admitted prior physical abuse of S.D. when they lived in 

Arizona, but denied that he had ever placed a gun in her mouth While acknowledging

that neighbors had complained about loud noises coming from their apartment in 

Sacramento, he denied that the couple had fought in Sacramento with the exception of 

April 19, 2017. He also admitted some of his beliefs such as that the earth was flat, that

he was Jesus, that he was on a reality TV show, and that doctors and S.D. had conspired 

against him to prevent him from getting a biopsy for his penile cancer. 

Defendant further denied engaging in anything but consensual sexual activity with 

S.D. Their relationship was consensual and involved a degree of agreed upon violence 

including slapping, choking, spanking, biting, and the use of bondage toys such as a 

whip. On the morning of April 19, they had engaged in consensual vaginal and anal 

intercourse, although defendant admitted that he told investigating officers that his “dick 

has not worked for four years.” Defendant explained that he had been high on Xanax 

when he sent the victim threatening text messages after she fled. 

In rebuttal, the People offered testimony that defendant’s arresting officer did not 

see any signs that defendant was intoxicated, nor was he told defendant had been taking 

Xanax. Another officer testified that defendant had been housed separately at jail at his 

own request and was not required to be in the psychiatric unit. Finally, a third officer 

testified that S.D.’s webcamming website had terms and conditions related to extreme 

sadomasochism and bondage. 

The People’s August 31, 2017, information charged defendant with forcible rape 

(§ 261, subd. (a)(2); count one); forcible sodomy (§ 286, subd. (c)(2); count two);
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corporal injury resulting in a traumatic condition upon a cohabitant (§ 273.5, subd. (a); 

count three); false imprisonment (§ 236; count four); and criminal threats (§ 422; count 

five). It was further alleged that defendant used a knife in connection with count five. 

(§ 12022, subd. (b)(1).) The matter was tried to a jury which found defendant guilty on 

all counts and found the special allegation that he had used a knife true. 

Thereafter on March 1, 2019, defendant was sentenced to an aggregate prison term 

of 15 years and eight months. In arriving at that sentence, the court set the domestic 

violence count as the principle term and sentenced defendant to three years, plus eight 

months for the false imprisonment. The court stayed imposition of a sentence for the

criminal threats conviction pursuant to section 654. The court then imposed consecutive 

sentences of six years for the rape conviction and six years for the sodomy conviction as 

authorized by section 667.5. 

DISCUSSION

I

Prosecutorial Misconduct

As noted, ante, defendant argues the prosecutor’s closing argument repeatedly

misstated the inference the jury could draw from defendant’s prior acts of domestic 

violence and sexual assault thus violating his right to “due process, effective assistance of 

counsel, and a fundamentally fair jury trial.” Because his counsel failed to object to the 

prosecutor’s argument, defendant contends his counsel provided ineffective assistance of 

counsel. 

Defendant’s failure to object to the People’s argument forfeits this claim on appeal 

(People v. Centeno (2014) 60 Cal.4th 659, 674 (Centeno)); but we have discretion to 

decide an issue of constitutional importance. (People v. Marchand (2002) 

98 Cal.App.4th 1056, 1061 [appellate court may exercise discretion to consider 
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constitutional issues raised for the first time on appeal].) Given his ineffective assistance 

of counsel claim, we will address the merits of his contention.

First, we need not address the merits of defendant’s argument regarding effective 

assistance of counsel as to his domestic violence conviction. He could not have been 

prejudiced by his counsel’s performance as to that count since he testified he kicked,

slapped, pushed, and grabbed the victim, S.D., on the day in question causing bruising

and had physically assaulted her in the past. 

Addressing the merits of his remaining claim regarding his convictions for rape 

and sodomy, for the following reasons it is not reasonably likely the prosecutor’s 

argument confused the jury regarding the permissible inferences from defendant’s prior 

conduct and thereby caused that jury to misapply the reasonable doubt standard. 

Accordingly, this claim fails, too.

Before instructing the jury, the court allowed the parties to present their closing 

arguments. 

In the People’s initial argument, the prosecutor admonished the jury that a victim 

does not have to be perfect to be protected by the justice system. She argued that S.D. 

was a victim of both rape and sodomy because she allowed defendant to place his penis 

inside her vagina and anus only after he threatened her with a knife and had beaten her 

physically early that day. The physical evidence also supported S.D.’s version of events. 

The district attorney then explained the use of prior instances of sexual violence, 

about which defendant complains on appeal, stating:

“Domestic violence and sexual assault cases, there is [a] history, there is a 

relationship component and that complicates things. And the law says if, in the past, 

there has been nonconsensual sexual activity, you get to hear about that. You get to hear 

about that so when you judge the credibility of the witnesses again, it’s not in this one 

distinct moment in time, but it’s you’re hearing about their history. Okay.
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“So the law says it’s -- and it’s very, very specific when it comes to domestic 

violence and sexual violence. We’re still only talking about the sexual violent acts that 

are charged, Counts One and Two. But under the law if you believe [S.D.] about the 

prior incidents of nonconsensual sex where she submitted, performed oral copulation out 

of fear of physical violence or retribution, told her she had to get ready for anal sex 

because it was going to happen, and her submitting because she is afraid of a beating, if 

you believe her, not beyond a reasonable doubt which is the highest standard of the land, 

but actually by a preponderance of the evidence, you can find -- again, this is another 

piece of circumstantial evidence -- that the defendant was disposed or inclined to commit 

rape, that he was disposed or inclined to commit sodomy.

“You don’t have to stop there. And that the defendant was likely to commit and 

did commit the crimes that are charged in this case, okay, the crime of specifically rape 

and sodomy. [¶] That’s very powerful information and evidence, but it’s for a specific 

purpose. Again, you are not looking at the snapshot in time, you are looking at the 

history. It also takes into consideration that it sometimes is just the victim’s word, which, 

by the law, says if you believe beyond a reasonable doubt, it’s sufficient. So when it’s 

just the victim’s word, you can hear about other acts when you are judging whether or 

not, is this an aberration or is this how he behaves in this context? And I submit to you 

this is how he behaves.

“As I said, we have more. So again, just to like break it out for you, it’s -- the 

uncharged sexual acts that I’m referring to are the nonconsensual sexual activity of oral 

copulation and sodomy in Arizona, in Surprise. Remember, she would say he would 

demand oral sex. I felt that I had to perform that, otherwise I would get a beating.

“She also described nonconsensual activity, sexual activity prior to our charge date 

in Sacramento, again of oral copulation and rape. Okay. If you believe her testimony 

regarding these prior incidents by a preponderance of the evidence, you may find that he 

is predisposed or likely to -- as I said, predisposed or inclined to commit the crimes 
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charged, and that he likely did commit -- that he is likely to commit and did commit the 

crimes that are charged in this case.” The People’s arguments concerning prior acts of 

domestic violence tracked the arguments we have recounted concerning prior acts of 

sexual violence and highlighted that defendant’s testimony on the stand admitting

domestic violence. Defendant did not object to the People’s characterization of the 

inference associated with defendant’s prior bad acts. 

In summing up, the district attorney asked the jury to see that defendant’s conduct 

was consistent with someone who knew what they were doing and that he, in fact, 

intended to and knowingly committed the crimes charged. Finally, the district attorney

stated that beyond a reasonable doubt is not beyond all possible doubt, and that in light of 

the facts and the law, the jury had no choice but to find defendant was guilty of all crimes 

charged. 

In closing argument, the defendant’s counsel for the most part argued that the 

evidence did not prove that defendant acted with specific intent required by the law and 

that the victim of these offenses was not credible. He did not take issue with the 

prosecutor’s argument regarding inferences that might arise from evidence of prior

uncharged acts of sexual violence or acts of domestic violence.

Finally, in rebuttal, the People did not again refer to inferences that could arise 

from evidence of defendant’s prior bad acts. 

Following closing argument, the trial court properly instructed the jury in pertinent 

part that: “The People presented evidence that the defendant committed certain sex acts 

that are not charged in this case, specifically: One, in the second house in Surprise, 

Arizona, defendant committed oral copulation and sodomy against [S.D.]. Two, in 

Sacramento, California, prior to the conduct alleged in this case, defendant committed 

oral copulation and rape against [S.D.] The above referenced acts of oral copulation, 

sodomy, and rape are not charged in this case. The elements of those acts are defined for 

you in these instructions. You may consider this evidence only if, one, the People have 
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proved by a preponderance of the evidence that the defendant in fact committed the 

uncharged acts. Proof by a preponderance of the evidence is a different burden of proof 

from proof beyond a reasonable doubt. A fact is proved by a preponderance of the 

evidence if you conclude that it is more likely than not that the fact is true.

“If the People have not met this burden of proof, you must disregard this evidence 

entirely. [¶] And two, you all agree that the People have proved that the defendant 

committed at least one of these acts and you agree on which act he committed for each of 

the following charges: Count One, rape, and Count Two, sodomy.

“If you decide that the defendant committed the uncharged sex acts, you may, but 

are not required to conclude from that evidence that the defendant was disposed or 

inclined to commit sexual offenses, and based on that decision, also conclude that the 

defendant was likely to commit and did commit rape and/or sodomy as charged here.

“If you conclude that the defendant committed the sex acts, that conclusion is only 

one factor to consider along with all the other evidence. It is not sufficient by itself to 

prove that the defendant is guilty of rape and/or sodomy. The People must still prove the 

charge beyond a reasonable doubt. Do not consider this evidence for any other purpose.” 

The court also provided similar instructions concerning the defendant’s alleged 

prior acts of domestic violence, and again reminded the jury that “The People must still 

prove each charge and allegation beyond a reasonable doubt.” 

As the California Supreme Court has explained, “ ‘[I]t is improper for the 

prosecutor to misstate the law generally [citation], and particularly to attempt to absolve 

the prosecution from its prima facie obligation to overcome reasonable doubt on all 

elements [citation].’ [Citation.] Improper comments violate the federal Constitution 

when they constitute a pattern of conduct so egregious that it infects the trial with such 

unfairness as to make the conviction a denial of due process. [Citation.] Improper 

comments falling short of this test nevertheless constitute misconduct under state law if 

they involve use of deceptive or reprehensible methods to attempt to persuade either the 
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court or the jury. [Citation.] To establish misconduct, defendant need not show that the 

prosecutor acted in bad faith. [Citation.] However, [he] does need to ‘show that, “[i]n 

the context of the whole argument and the instructions” [citation], there was “a 

reasonable likelihood the jury understood or applied the complained-of comments in an 

improper or erroneous manner.” [Citation.]’ ” (People v. Cortez (2016) 63 Cal.4th 101, 

130 (Cortez).)

“Advocates are given significant leeway in discussing the legal and factual merits 

of a case during argument. [Citation.] However, ‘it is improper for the prosecutor to 

misstate the law generally [citation], and particularly to attempt to absolve the 

prosecution from its . . . obligation to overcome reasonable doubt on all elements 

[citation].’ [Citations.]” (Centeno, supra, 60 Cal.4th at p. 666.)

Here, we must decide whether “there was ‘a reasonable likelihood the jury 

understood or applied the complained-of comments in an improper or erroneous manner. 

[Citations.] In conducting this inquiry, we “do not lightly infer” that the jury drew the 

most damaging rather than the least damaging meaning from the prosecutor’s statements. 

[Citation.]’ ” (Centeno, supra, 60 Cal.4th at p. 667.)

Rather, “ ‘[w]e presume that jurors treat the court’s instructions as a statement of 

the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an 

attempt to persuade.’ [Citation.] ‘[P]rosecutorial commentary should not be given undue 

weight in analyzing how a reasonable jury understood . . . instructions. Juries are warned 

in advance that counsel’s remarks are mere argument, missteps can be challenged when 

they occur, and juries generally understand that counsel’s assertions are the “statements 

of advocates.” Thus, argument should “not be judged as having the same force as an 

instruction from the court.” ’ ” (Cortez, supra, 63 Cal.4th at pp. 131-132.)

Here, the People’s argument did not misstate the law, and in fact tracked the 

court’s later instructions regarding inferences that might arise from evidence of 

uncharged acts of sexual or domestic violence. While the prosecutor’s argument stopped 
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short of relaying the court’s entire instruction and therefore omitted that this evidence 

was only one piece of circumstantial evidence and that the People still had to prove every 

element of every offense beyond a responsible doubt, her failure to do so was not 

misconduct. Critically, the court’s jury instructions coming after the arguments of 

counsel accurately conveyed the law relating to circumstantial evidence, proof beyond a 

reasonable doubt and inferences that may be drawn from evidence of uncharged sexual 

and domestic misconduct. The court also instructed the jury that its instructions must 

prevail over any contrary statements of counsel and that the jury had to follow the court’s 

instructions. We presume the jury followed the court’s instructions. (People v. Sanchez 

(2001) 26 Cal.4th 834, 852.)

Under these circumstances, it is not reasonably likely the People’s argument

confused the jury regarding the permissible inferences from defendant’s prior conduct 

and caused that jury to misapply the reasonable doubt standard. (Cortez, supra, 

63 Cal.4th at p. 130.) Accordingly, this claim fails.

II

Failure to Identify a Term for Count Five Prior to the Section 654 Stay

It is well settled that when a court determines that a conviction is subject to section 

654, it must impose a sentence and then stay the execution of that sentence, the stay to 

become permanent upon defendant’s service of the portion of the sentence not stayed. 

(People v. Duff (2010) 50 Cal.4th 787, 796; People v. Relkin (2016) 6 Cal.App.5th 1188, 

1197-1198; People v. Alford (2010) 180 Cal.App.4th 1463, 1469; People v. Salazar

(1987) 194 Cal.App.3d 634, 640.) “This procedure ensures that the defendant will not 

receive ‘a windfall of freedom from penal sanction’ if the conviction on which the 

sentence has not been stayed is overturned.” (Salazar, at p. 640.) It is improper to 

simply stay the imposition of sentence. (Duff, at pp. 795-796; Alford, at p. 1468.) The 

court here imposed an unauthorized sentence by failing to impose a sentence on count 
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five prior to its staying execution of that sentence. (People v. Crabtree (2009) 

169 Cal.App.4th 1293, 1327.) Because the appropriate term to be imposed involves a 

discretionary choice (§ 422, subd. (a)), we will remand the matter to allow the trial court 

to exercise that discretion.

DISPOSITION

The matter is remanded for the limited purpose of allowing the trial court to select

and impose a term of imprisonment for count five, and then stay execution of that term 

pursuant to section 654. The judgment is otherwise affirmed. 

 

HULL, Acting P. J.

We concur:

 

MURRAY, J.

 

HOCH, J.