People v. Castillo CA2/4

Filed 11/25/20 P. v. Castillo CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR

THE PEOPLE, B302534

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. MA074962
v.

JOSE ROBERT CASTILLO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, David E. Hizami, Judge. Affirmed in part,
vacated in part.
Thomas T. Ono, 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, Senior
Attorney General, Noah P. Hill and Kathy S. Pomerantz, Deputy
Attorneys General, for Plaintiff and Respondent.
 INTRODUCTION

A jury convicted defendant and appellant Jose Robert
Castillo of seven sex offenses against three minors who were
members of his extended family. The trial court sentenced him to
an indeterminate sentence of 30 years to life in state prison, plus
a determinate term of 68 years. On appeal, Castillo raises four
arguments: (1) either count five or counts six and seven must be
vacated under Penal Code section 288.5, subdivision (c)1; (2)
counts five through ten are unsupported by substantial evidence;
(3) the sentence for either count five or count seven should be
stayed under section 654; and (4) the trial court prejudicially
erred by not giving a unanimity instruction on counts five, six,
and seven. We agree that count five must be vacated under
section 288.5, and that it is unsupported by substantial evidence.
In all other respects, the judgment is affirmed.

PROCEDURAL BACKGROUND

The Los Angeles County District Attorney filed an
information charging Castillo with five counts of lewd act on a
child (§ 288, subd. (a); counts three, four, seven, eight, and nine),
one count of continuous sexual abuse (§ 288.5, subd. (a); count
five), one count of oral copulation or sexual penetration with a
child 10 years old or younger (§ 288.7, subd. (b); count six), one
count of forcible lewd act on a child (§ 288, subd. (b)(1); count 10),
and one count of dissuading a witness from reporting a crime
(§ 136.1, subd. (b)(1); count 11). As to all counts, the information

1 All undesignated statutory references are to the Penal
Code.

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alleged Castillo sustained a prior strike conviction. (§§ 667, subd.
(d), 1170.12, subd. (b).) With respect to counts 5, 6, 10, and 11,
the information alleged Castillo sustained one prior serious
felony conviction. (§ 667, subd. (a)(1).)2
The trial court granted the prosecution’s motion to dismiss
counts 4 and 11. The jury found Castillo guilty on all remaining
counts. Castillo admitted he sustained the prior strike and prior
serious felony convictions. The trial court sentenced him to an
indeterminate sentence of 30 years to life in state prison, plus a
determinate sentence of 68 years, calculated as follows: (1) an
upper term of 16 years on count five, doubled to 32 years; (2) four
years each on counts three, seven, eight, and nine (one-third the
midterm, doubled); (3) an upper term of 10 years on count 10,
doubled to 20 years; and (4) a term of 15 years to life on count six,
doubled to 30 years to life. The court struck the prior serious
felony enhancements in the interest of justice.
Castillo timely appealed.

FACTUAL BACKGROUND

I. Prosecution case

A. Count three (victim – B.L.)

At the time of trial, B.L. was 16 years old. Castillo was
B.L.’s great-aunt’s husband.3 When B.L. was in junior high
school, Castillo stayed with her family. B.L. lived with her

2 The information did not include a first or second count.

3 Castillo’s wife N.C. was the aunt of B.L.’s mother, C.L.

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mother (C.L.), her sister (M.L., the victim of counts five, six, and
seven), her grandmother, and her two aunts. D.A. (the victim of
counts eight, nine, and ten) was B.L.’s cousin.
When Castillo lived with B.L. in Lancaster, his behavior
made B.L. feel uncomfortable. B.L. kept her distance from him.
After her family moved to Arizona, B.L. returned to visit her
grandmother during the summer. B.L. was sitting on the couch
watching television, and Castillo sat next to her. He rested his
hand on her upper knee and lower thigh. Because her mother and
grandmother sometimes did the same thing, she initially thought
it was okay. When Castillo moved his hand to her upper thigh,
she pushed him away. She told him never to do it again or she
would call the police. She walked out of the room.
B.L. was 13 when this incident occurred. She never spoke
to M.L. or D.A. about the incident. The first time she spoke with
her mother about it was years later, when J.F., who was married
to D.A.’s mother, called C.L. and told her Castillo had molested
D.A. C.L. asked B.L. and M.L. if anything had occurred between
them and Castillo, and that is when B.L. and M.L. first told
someone about the molestations.

B. Counts five, six, and seven (victim – M.L.)

M.L. was born in 2006. At the time of trial, she was 13
years old and in eighth grade. Castillo was her great-uncle. M.L.
lived in Lancaster with her mother, her older sister B.L., her
grandmother, and her two aunts. Castillo and his wife lived with
them when M.L. was about six or seven years old and in first or
second grade. According to C.L., Castillo began living with them
in 2012.

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 During the time Castillo lived with M.L.’s family, he
touched her inappropriately more than 20 times. The incidents
usually occurred in the living room as M.L. sat on Castillo’s lap.
No one else was in the room with them when it happened.
Castillo put his hand on M.L.’s vagina. Sometimes the
molestations occurred daily; other times, there was a break in
time between them. Castillo called it “uncle time” and threatened
M.L. that if she told anyone about it, her mother would get hurt.
M.L. also recounted a separate incident that occurred when
Castillo lived with her family. She was in the bathroom naked,
preparing to take a shower. Castillo came into the bathroom,
shut the door, and inserted his finger in her vagina. She did not
want him to do what he was doing, but she did not say anything.
Another incident occurred at Castillo’s house, before
Castillo lived with M.L.’s family. This was the first time Castillo
molested M.L. She had gone into his room to say goodbye because
she and her family were going home. Castillo took one of M.L.’s
hands, put it up his shorts, and put her hand directly on his
penis. M.L. did not say anything to him and did not try to get
away.
M.L. never talked to anyone about the incidents until J.F.
called C.L. and asked if Castillo had ever molested M.L. or B.L.

C. Counts eight, nine, and ten (victim – D.A.)

D.A. was born in 2007. At the time of trial, she was 12
years old and in sixth grade. Castillo, his wife, and his daughter
lived with D.A. and her family, including her mother M.F. and
M.F.’s husband J.F., in Lancaster when D.A. was nine or ten and
in the third grade. Castillo was J.F.’s stepfather. D.A. called

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Castillo “grandpa.” She testified about three different incidents
when Castillo sexually molested her.
One incident occurred in the bedroom D.A. shared with her
two brothers. She was in the room playing with her brothers
when Castillo “came out of nowhere.” It was dark outside, and
the light was on in the bedroom. D.A. sat on her bed, and her
brothers were on their beds on the other side of the room. She
was wearing a nightgown and underwear. Castillo sat on D.A.’s
bed with his back to D.A. He moved his hand behind his back, put
it under D.A.’s nightgown, and touched her vagina over her
underwear. Castillo moved his hand up and down. At first, D.A.
thought it was a joke, but then Castillo “started being serious
about it.” She did not say anything to her brothers as it was
happening, and she did not tell anyone about the incident
afterward.
A second incident occurred in the living room. J.F. was
cooking and M.F. was in her bedroom. D.A. was “play-fighting”
with Castillo. He pushed her down on the ground and put both of
her hands on his penis (over his clothes) while he softly punched
her in the chest. She tried to get up, but Castillo pushed her
down. D.A. told him to stop, but he continued with the assault.
No one else was in the living room with them. D.A. yelled out,
and Castillo eventually stopped.
The third and final incident occurred at a barbeque on
Father’s Day. D.A. was in the laundry room, which was near the
kitchen, at her house. She was playing hide-and-go-seek with her
brothers. With her eyes closed, D.A. counted to ten. When she
opened her eyes, Castillo was standing in front of her. She tried
to walk past him, but he blocked her from exiting. With his back
to D.A., Castillo reached back, touched her vagina over her

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clothes, and moved his fingers up and down. She tried to get
away. D.A. yelled, and Castillo moved out of the laundry room.
J.F. and M.F. came over to see what had happened. D.A. did not
initially tell anyone about the incident. She eventually told her
mother, shortly after the barbeque. After that, Castillo moved
out, and he never molested D.A. again.

D. Testimony from B.L.’s, M.L.’s, and D.A.’s parents

According to M.F., D.A.’s mother, Castillo lived with her
and her family in Lancaster from 2013 to 2016. D.A.’s family had
a Father’s Day barbeque at their house on June 19, 2016. D.A.
was nine years old. The day after the barbeque, D.A. asked M.F.
why Castillo touched her vagina. D.A. told M.F. that when she
and J.F. went to get food for the barbeque, Castillo pulled her
into the laundry room, pushed her behind him, put his hand
behind him, and grabbed her vagina. M.F. did not report the
incident to the police because she was terrified of Castillo.
Castillo had told her that he had “connections” and “could make
things happen.” D.A. told M.F. that Castillo had threatened to
kill M.F.’s siblings if D.A. told anyone about the molestations.
J.F. confronted Castillo about the molestations, and Castillo
moved out. Sometime later, Castillo called J.F. at work and
threatened to kill J.F. if he went to the police. He asked J.F. why
he cared about what happened to D.A. because she was not J.F.’s
biological daughter.
C.L., B.L., and M.L. moved to Arizona in 2016. Sometime
that summer, after D.A. had told her parents about the
molestations, J.F. called C.L. in Arizona and asked whether M.L.
and B.L. had experienced similar abuse by Castillo. B.L. told C.L.

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that Castillo tried to touch her but she told him to stop and to
never do it again. M.L. started to cry and told C.L. that Castillo
had been touching her. C.L. reported the incidents to the police in
Arizona, but they told her she had to file a report in Lancaster,
where the crimes had occurred. In May 2017, after C.L. returned
to Lancaster, she reported the incidents to the police.

II. Defense case

Castillo did not testify or present evidence in his defense.

DISCUSSION

I. Castillo’s Penal Code section 288.5, subdivision (c)
argument

Castillo contends Penal Code section 288.5, subdivision (c)
barred him from being convicted on all of the following counts:
five, six, and seven. He argues the proper remedy is a remand for
the trial court to either vacate count five, or vacate counts six and
seven. The Attorney General agrees there was error, but argues
only counts five and six are implicated by section 288.5,
subdivision (c). The Attorney General also disagrees with Castillo
about the proper remedy, arguing only count five should be
vacated. For the reasons discussed below, although we agree with
Castillo about the scope of the error, we agree with the Attorney
General that the proper remedy is to vacate count five only.

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 A. Procedural background

The information charged Castillo with continuous child
abuse (§ 228.5, subd. (a); count five), sexual penetration with a
child (§ 288.7, subd. (b); count six), and lewd act upon a child
(§ 288, subd. (a); count seven). These counts were not charged in
the alternative and involved the same victim (M.L.). Count five
covered the period from December 1, 2011 until December 31,
2014. Counts six and seven covered the period from March 24,
2012 until March 24, 2013.
The trial court sentenced Castillo to a 32-year determinate
term on count five, 30 years to life on count six, and a four-year
determinate term on count seven.

B. The error

Section 288.5, subdivision (c) provides in pertinent part:
“No other act of substantial sexual conduct, . . . with a child
under 14 years of age at the time of the commission of the
offenses, or lewd and lascivious acts, as defined in Section 288,
involving the same victim may be charged in the same proceeding
with a charge under this section unless the other charged offense
occurred outside the time period charged under this section or the
other offense is charged in the alternative. A defendant may be
charged with only one count under this section unless more than
one victim is involved in which case a separate count may be
charged for each victim.”4

4 Section 288.5, subdivision (c) “carves out an exception to
section 954’s general rule permitting joinder of related charges.”
(People v. Johnson (2002) 28 Cal.4th 240, 246 (Johnson).)

9
 Counts six and seven were both alleged to have occurred
within the time period over which the continuous conduct in
count five was alleged to have occurred. These counts were not
charged in the alternative and involved the same victim. The
charging document therefore did not comply with the
requirement of section 288.5, subdivision (c). As a result, under
the plain language of the statute, Castillo cannot stand convicted
of counts five, six, and seven. The question becomes which
convictions should be vacated. “[E]ither the continuous abuse
conviction [count five] or the convictions on the specific offenses
[counts six and seven] must be vacated.” (Johnson, supra, 28
Cal.4th at p. 245.)
Although in Johnson, our Supreme Court affirmed the
Court of Appeal’s decision vacating the convictions on the specific
counts, the court did not explain how courts are to determine
which convictions to vacate under which circumstances. In People
v. Torres (2002) 102 Cal.App.4th 1053 (Torres), the Court of
Appeal examined the legislative intent underlying section 288.5
and concluded it was appropriate, “in deciding which convictions
to vacate as the remedy for a violation of the proscription against
multiple convictions set forth in section 288.5, subdivision (c),
that we leave [the defendant] standing convicted of the
alternative offenses that are most commensurate with his
culpability.” (Id. at p. 1059.) Generally, this would translate to
upholding whichever conviction resulted in the greater aggregate
penalty and vacating the less serious convictions. (People v. Rojas
(2015) 237 Cal.App.4th 1298, 1309 (Rojas).) The reason is that
“[t]he intent of the Legislature in enacting section 288.5 was ‘to
provide additional protection for children subjected to continuing
sexual abuse and certain punishment.’” (Torres, supra,

10
102 Cal.App.4th at p. 1058, quoting Stats. 1989, ch. 1402, § 1,
p. 6138, emphasis omitted.) “It would be anomalous if section
288.5, adopted to prevent child molesters from evading
conviction, could be used by those molesters to circumvent
multiple convictions with more severe penalties and prior-strike
consequences than available for a conviction under section 288.5.”
(People v. Alvarez (2002) 100 Cal.App.4th 1170, 1177-1178.)
We agree with Torres and reject Castillo’s argument that it
was wrongly decided. The trial court sentenced Castillo to a 32-
year determinate term on count five, 30 years to life on count six,
and a four-year determinate term on count seven. We therefore
vacate Castillo’s conviction on count five. (See Rojas, supra, 237
Cal.App.4th at p. 1309; Torres, supra, 102 Cal.App.4th at pp.
1057-1061.)5

II. Castillo’s substantial evidence arguments

Castillo argues the record contains insufficient evidence to
sustain his convictions on counts five through ten, and that the
convictions therefore violated his constitutional right to due

5 The Attorney General argues count seven does not fall
under the statutory requirement of section 288.5, subdivision (c).
The plain language of the statute belies this argument – count
seven was alleged to have occurred within the time period over
which count five was alleged to have occurred. Even assuming
the Attorney General were correct with regard to count seven, the
proper remedy would still be to vacate count five because Castillo
faces a greater maximum penalty on count six (life in prison)
than on count five (32 years).

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process. We agree with Castillo’s argument relating to count five,
but reject his contentions relating to counts six through ten.6

A. General legal principles

In reviewing a judgment for sufficiency of the evidence, a
court must review the record in the light most favorable to the
judgment to determine if there is substantial evidence from
which any rational trier of fact could find each element of the
crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443
U.S. 307, 318-319 [99 S.Ct. 2781, 61 L.Ed.2d 560]; People v.
Staten (2000) 24 Cal.4th 434, 460.) Substantial evidence is
evidence that is “‘ . . . reasonable in nature, credible, and of solid
value.’ [Citations.]” (People v. Johnson (1980) 26 Cal.3d 557, 576.)
In reviewing a sufficiency claim, we “presume in support of the
judgment the existence of every fact that the trier of fact could
reasonably deduce from the evidence. [Citation.]” (People v.
Medina (2009) 46 Cal.4th 913, 919.)

6 Although we vacate Castillo’s count five conviction under
section 288.5, subdivision (c), we also address his sufficiency
argument on that count because the remedy for insufficient
evidence, unlike the remedy for his section 288.5 argument,
implicates his constitutional rights under the double jeopardy
clause.

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 B. Analysis

1. Count five

Castillo first challenges the sufficiency of the evidence
relating to his conviction on count five for continuous child abuse.
(§ 288.5, subd. (a).) We agree that count five is unsupported by
substantial evidence. Under the federal double jeopardy clause,
Castillo is barred from being retried on this count. (U.S. Const.,
5th Amend.; In re Johnny G. (1979) 25 Cal.3d 543, 546.)
Section 288.5, subdivision (a) provides: “Any person who
either resides in the same home with the minor child or has
recurring access to the child, who over a period of time, not less
than three months in duration, engages in three or more acts of
substantial sexual conduct with a child under the age of 14 years
at the time of the commission of the offense, as defined in
subdivision (b) of Section 1203.066, or three or more acts of lewd
or lascivious conduct, as defined in Section 288, with a child
under the age of 14 years at the time of the commission of the
offense is guilty of the offense of continuous sexual abuse of a
child and shall be punished by imprisonment in the state prison
for a term of 6, 12, or 16 years.”7 (Italics added.) Castillo argues
that because victim M.L. was “not able to provide specific dates or

7 A violation of section 288.5, subdivision (a) thus requires
proof of the following elements: (1) the defendant lived in the
same home with, or had recurring access to, the child; (2) the
defendant committed three or more acts of substantial sexual
conduct or lewd or lascivious conduct with the child; (3) three or
more months passed between the first and last acts; and (4) the
child was under the age of 14 at the time of the acts. (CALCRIM
No. 1120.)

13
her age when things happened[,]” the record contains insufficient
evidence that he engaged in three or more acts of substantial
sexual conduct with her over a period of time not less than three
months in duration. We agree.
The evidence showed M.L. was born in 2006, that Castillo
lived with her and her family from 2012 until 2014, and that
Castillo touched her vagina more than 20 times during that
period. Sometimes the molestations were daily; sometimes there
was a break in time from one molestation to the next. Most of the
molestations occurred in the living room as M.L. sat on Castillo’s
lap. M.L. also testified Castillo inserted his finger in her vagina
as she prepared to take a shower.
Although it is possible these incidents occurred over a
period that spanned three months or longer, the record is silent
on this factual point. M.L. testified the incidents all happened
closely in time to each other, but, perhaps because she was so
young when the incidents occurred, she unfortunately could not
recall when the molestations happened in relation to one another.
As a result, the record does not contain sufficient evidence from
which a reasonable trier of fact could conclude beyond a
reasonable doubt that three acts of molestation occurred over a
duration of three months or more as mandated by section 288.5,
subdivision (a).
The Attorney General argues the proper remedy is not an
acquittal on count five, but rather a reduction of the conviction to
a violation of section 288, subdivision (a). In support of this
argument, the Attorney General contends a section 288,
subdivision (a) violation is not a lesser included offense of a
section 288.5, subdivision (a) violation under the elements test,
but that it is a lesser included offense under the accusatory

14
pleading test. Castillo responds: “Without contesting whether a
violation of section 288, subd. (a), is a lesser included violation of
section 288.5, a reduction of the count 5 conviction to the lesser
charge is subject to section 654. Since the alleged violations of
section 288, subd. (a), in counts 5 and 7 involve the same victim,
the same acts, the same course of conduct, the same locations, the
same period of time, section 654 would bar multiple
punishments.” We need not resolve this matter, however,
because, as discussed above, count five must be vacated under
section 288.5, subdivision (c).

2. Count six

Castillo next challenges the sufficiency of the evidence
relating to his conviction on count six for sexual penetration with
a child 10 years or younger. (§ 288.7, subd. (b).) He argues the
record contains insufficient evidence that M.L. was 10 years or
younger when the shower incident occurred. We disagree. The
record shows M.L. was born in 2006, and Castillo lived with M.L.
and her family from 2012 until 2014. The record therefore
contains substantial evidence from which a jury could reasonably
infer M.L. was under 10 when the sexual penetration occurred.

3. Count seven

Castillo contends his conviction on count seven must be
reversed because the record contains insufficient evidence that
M.L. was under the age of 14 when he committed a lewd act on
her. (§ 288, subd. (a).) Count seven pertained to the incident
when Castillo put M.L.’s hand directly on his penis. M.L. was

15
born in 2006, and Castillo’s trial occurred in 2019, when M.L. was
13 years old. Count seven is supported by substantial evidence.

4. Counts eight, nine and ten

Castillo next challenges counts eight through ten. Count
eight pertained to the incident when Castillo touched D.A.’s
vagina in the laundry room of her house on Father’s Day,
June 19, 2016. Although Castillo’s argument is not entirely clear,
he appears to contend the record contains insufficient evidence
that D.A. was under 14 years old when the incident occurred. We
reject this contention. D.A. was born in 2007. The laundry room
incident occurred in 2016, when D.A. was in third grade.
Castillo’s trial occurred in 2019, when D.A. was 12 years old. The
jury could reasonably infer D.A. was under 14 years of age when
Castillo committed the lewd act. For these same reasons, we
reject Castillo’s contention that the record contains insufficient
evidence D.A. was under 14 years old when the incidents
underlying count 9 (the lewd touching in the bedroom) and count
10 (the lewd act on a child using force when Castillo pinned D.A.
down and put her hand on his genitals) occurred.
D.A. was 12 years old when the jury observed her
testimony at trial. The jury could thus reasonably infer she was
under 14 when all the charged acts occurred.

III. Castillo’s Penal Code section 654 argument

Castillo next argues section 654 precluded the trial court
from imposing sentence on both counts five and seven. The
Attorney General disagrees, arguing counts five and seven

16
involved separate criminal acts. Because we are vacating
Castillo’s conviction on count five, we need not address this
argument.

IV. Castillo’s unanimity instruction argument

Castillo next agues the trial court prejudicially erred by
failing to instruct sua sponte on the unanimity requirement with
respect to counts five, six, and seven. The Attorney General
contends the trial court did not have a sua sponte duty to give a
unanimity instruction on these counts, and that even assuming it
did, the error was harmless. We agree with the Attorney General.
Criminal defendants are guaranteed the right to a
unanimous jury verdict. (People v. Jones (1990) 51 Cal.3d
294, 321; see Cal. Const., art. I, § 16.) A unanimity instruction
avoids the possibility that “‘“the defendant will be convicted even
though there is no single offense which all the jurors agree the
defendant committed.” [Citation.]’” (People v. Norman (2007)
157 Cal.App.4th 460, 464-465.) “[W]hen the evidence suggests
more than one discrete crime, either the prosecution must elect
among the crimes or the court must require the jury to agree on
the same criminal act. [Citations.]” (People v. Russo (2001)
25 Cal.4th 1124, 1132.) We review de novo challenges alleging
the failure to provide a unanimity instruction. (People v.
Hernandez (2013) 217 Cal.App.4th 559, 568.)
We begin by addressing counts six and seven. As the
prosecutor explained to the jury, count six pertained to the
incident when Castillo inserted his finger in M.L.’s vagina, and
count seven pertained to the incident at Castillo’s house when he
put her hand on his penis. Because the prosecution elected to tell

17
the jury which specific acts constituted violations of counts six
and seven, there was no need for the trial court to instruct the
jury on the unanimity requirement in relation to those counts, as
there was no danger the jury might be confused or reach a non-
unanimous verdict on either count. For this same reason, we find
no merit in Castillo’s argument that the lack of a unanimity
instruction was in any way prejudicial.8

8 We need not address Castillo’s argument relating to count
five because, as discussed above, we are vacating the conviction
on that count.

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 DISPOSITION
Castillo’s conviction on count five is vacated. In all other
respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J.

We concur:

MANELLA, P.J.

COLLINS, J.

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