People v. Castro CA3

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C089101

Plaintiff and Respondent, (Super. Ct. No. 17FE007268)

v.

HECTOR CASTRO,

Defendant and Appellant.

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.

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