Filed 6/20/23 P. v. Castro CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

FIDEL ERNESTO CASTRO,

 Defendant and Appellant.

 G061348

 (Super. Ct. No. 00NF1636)

 O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, 

Michael A. Leversen, Judge. Affirmed.

Benjamin Kington, under appointment by the Court of Appeal, for 

Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *
2

This is another of the burgeoning number of Wende1filings occasioned by 

recent legislative changes that are, not surprisingly, confusing to people who have not 

received a legal education. Appellant Fidel Castro’s attorney has been unable to find an 

issue to argue on behalf of his client, who misunderstood the change in the law. We have 

reviewed the record and agree there is no arguable issue.

In 2019, in an attempt to make California law regarding murder more 

reflective of actual culpability, our Legislature effectively renounced the theories of 

“felony murder” and “reasonable and probable consequences liability” for murder and 

attempted murder. First, the Legislature eliminated the natural and probable 

consequences theory for that crime by providing that “[m]alice shall not be imputed to a 

person based solely on his or her participation in a crime.” (Pen. Code, § 188, subd. 

(a)(3) 2.) Second, it reined in the felony murder rule so that it can only be applied to 

nonkillers if they aided and abetted the killer in committing first degree murder, or they 

were a major participant in the underlying felony and acted recklessly indifferent to 

human life. (§ 189, subd. (e).) It provided that people previously convicted could 

petition to have their cases reviewed and relief granted if either of those theories was 

employed against them and the facts of their case would not support a murder or 

attempted murder conviction without resort to those theories.

In 2007, appellant was convicted by a jury of premeditated attempted 

murder, shooting at an occupied motor vehicle, dissuading a witness, brandishing a 

firearm, and street terrorism. It was found to be true that he had personally used and 

discharged a firearm in connection with the attempted murder count. He was sentenced 

to 38 years, 4 months to life in prison. The convictions were affirmed on appeal, 

although the sentence enhancement for use of a firearm enhancement was stricken 

1

People v. Wende (1979) 25 Cal.3d 436. 

2

All further statutory references are to the Penal Code. 
3

because he had also been convinced of personally discharging the firearm. (People v. 

Castro (Oct. 23, 2007, G037208) [nonpub. opn.].)

In 2021, appellant filed this action, seeking relief pursuant to newly-enacted 

section 1172.6.

3 Section 1172.6 is the procedural mechanism for implementing the 

legislative changes described above. 

The trial court appointed counsel for appellant, heard appellant’s motion 

under this section and denied it. He appealed and we appointed counsel to represent him 

on appeal. Counsel reviewed the record in the case and concluded there was no issue he 

could argue that had a reasonable chance of success. He did not argue against his client 

but requested – as the law provides – that we independently review the case and see if we

could find an issue that might be arguable. (Wende, supra, 25 Cal.3d 436; People v. 

Delgadillo (2022) 14 Cal.5th 216.) Appellant was given the opportunity to write to us 

and tell us what issues he thought might be found in the record but did not do so.

To obtain relief under the new section, the appellant had to show 1) he was 

prosecuted for murder or attempted murder under the felony murder rule or the natural 

and probable consequences doctrine, 2) his case was ultimately resolved under one of 

those concepts and 3) he would not be liable for his crime today because of how the 

Legislature has redefined that offense. (§§ 1172.6; 188, 189.) Appellant’s petition fails 

on two of these three requirements.

Most importantly, neither of the abandoned theories was employed here. 

The charging document in his case (the first amended information) alleges that he “did

willfully, unlawfully, and with malice aforethought” attempt to murder the victim. It 

goes on to allege that he did so “willfully, deliberately and with premeditation[.]” No 

“felony murder” or “reasonable and probable consequence” allegation appears in the 

information. 

3 When appellant filed this action, the governing section for the relief he sought was section 

1170.95. It has since been renumbered 1172.6.
4

The jury did not find that appellant took part in a crime in which someone 

else did something and he was liable for it, they found that he personally discharged a 

firearm at the person with the intent to kill. They found he did it with premeditation.

Those verdicts and finding establish that he was prosecuted as the perpetrator of the 

offense and without reference to any theory of felony murder or natural and probable 

consequences. They also establish that he would be liable for attempted murder under 

present law.

The petition under section 1172.6 was properly denied and appellate 

counsel’s concession under Wende was well-founded. The judgment is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

MOORE, J.

GOETHALS, J.