Filed 3/27/18 P. v. Castellano CA4/3





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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(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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

LEE CASTELLANO,

Defendant and Appellant.


G053831

(Super. Ct. No. 15CF0409)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found Lee Castellano guilty of second degree murder while personally armed with a knife. Castellano argues we should reverse his conviction because it rests on insufficient evidence. He also claims the trial court committed prejudicial error when it instructed the jury with CALCRIM No. 372, the flight instruction. We find his contentions lack merit, and affirm the judgment.
FACTS
Steve Jolly was a homeless man. Adan Ibarra, owner of a business at 1147 West Struck in Orange, testified he allowed Jolly to sleep in an old van parked in the alley behind his business. He also testified he had seen Castellano hanging around the area on several occasions and had once told Castellano to leave when he was caught sleeping in the van. Ibarra last saw Jolly alive on February 23, 2015.
On the evening of February 23, 2015, Castellano and a friend went to sleep in the bushes in front of 1070 North Batavia in Orange, about 835 feet from 1147 West Struck. Early in the morning of February 24, 2015, Ibarra found Jolly’s body in the alley behind his business in a pool of blood. The van door closest to Jolly’s body bore a boot print.
That same morning, one of Ibarra’s employees was riding his bike to work. The employee saw Castellano in front of another business at 1070 North Batavia, around the corner from 1147 West Struck. The police canvassed the area, based upon the employee’s report of seeing Castellano. Also that morning, an owner of one of the suites at 1070 North Batavia noticed what he thought was blood on his store window. The blood was not there the day before. Before the owner started to clean the blood, he saw a police officer walking in the parking lot, and showed the officer the blood. Further investigation revealed additional blood on or near 1070 North Batavia. Subsequent testing of the blood stains at 1070 North Batavia showed the presence of Castellano’s and Jolly’s DNA.
Castellano regularly rode the bus to Laguna Beach. Undercover detectives located and arrested Castellano in Laguna Beach on February 25, 2015. Castellano gave detectives a false name. Detectives observed cuts and swelling on Castellano’s right hand. Castellano gave various responses as to why his hand was injured. At one point he claimed the injuries were from punching a wall.
During a police interview, Castellano admitted he had known Jolly for several years and they were friends. Castellano eventually admitted he was angry with Jolly because he had scammed Castellano out of $100. Castellano also told detectives he “socked [Jolly’s] ass,” but had no recollection of what actually happened. When detectives informed him Jolly was dead, Castellano claimed to be shocked and dismayed. Castellano said he had a fixed daily routine, which involved waking up at about 6:00 a.m., going directly to Farmer Boys to use to the bathroom, and then to a local shelter at approximately 6:15 a.m. to shower. Castellano stated his routine did not vary on the morning of February 24, 2015. Surveillance footage from that morning showed Castellano at Farmer Boys just after 8:00 a.m.
When police interviewed Castellano, he was no longer wearing the clothes he had been wearing on February 24, 2015. Initially he told police someone stole the clothes, and then claimed he lost them. Police confiscated Castellano’s boots. The boots were spattered with Jolly’s blood. The blood spatter on the boots also contained blood from an unidentified minor contributor. Castellano left his own blood in at least four places at 1070 North Batavia. Castellano’s DNA was not found on any item that was analyzed at 1147 West Struck. Police did not find a murder weapon or bloody clothing in the area around and between 1147 West Struck and 1070 North Batavia.
An autopsy revealed Jolly’s cause of death was multiple stab wounds. There was also blunt force trauma to Jolly’s face, consistent with blows from a fist. The precise time of death was uncertain.
The operative information charged Castellano with murder (Pen. Code, § 187, subd. (a), all further statutory references are to the Penal Code) and alleged in the commission of the murder he used a deadly weapon (§ 12022, subd. (b)(1)). The information further alleged Castellano had served a prior prison term (§ 667.5, subd. (b)), suffered four prior strike convictions (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A)), and three prior serious felony convictions (§ 667, subd. (a)(1)). The jury found Castellano guilty of second degree murder and found true he used a knife. The court found true four strike priors and three serious felony priors. The court sentenced Castellano to a total indeterminate term of 61 years to life.
DISCUSSION
Castellano claims insufficient evidence supported the jury’s verdict. He also argues the trial court committed reversible error by giving the flight instruction over objection. Finding no error, we affirm.
I. Substantial Evidence Supported the Jury’s Verdict
In assessing a claim of insufficient evidence, “‘[t]he test on appeal is whether substantial evidence supports the conclusion of the trier of fact,’” not whether the reviewing court believes the evidence established guilt beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.) “We view the evidence in the entire record in the light most favorable to the respondent and we presume the existence of every fact in support of the judgment that the trier could reasonably deduce from the evidence. [Citation.] To be substantial, the evidence must be ‘“of ponderable legal significance . . . reasonable in nature, credible, and of solid value.”’ [Citation.]” (In re Jose P. (2003) 106 Cal.App.4th 458, 466; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) This standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Bean (1988) 46 Cal.3d 919, 932 (Bean).)
Castellano contends substantial evidence fails to show he was the killer. Not so. Direct and circumstantial evidence was presented to the jury, allowing a reasonable trier of fact to conclude beyond a reasonable doubt that Castellano murdered Jolly. Castellano and Jolly were friends, and Castellano knew where Jolly slept at night. Jolly swindled Castellano out of $100. Castellano was angry about the swindle, and even threated to “sock” Jolly for tricking him. Evidence showed Castellano was in close proximity to the murder scene and had opportunity to commit the crime. When detectives interviewed Castellano, 20 miles away from the crime scene, he gave a fake name and appeared to hide an injured hand. He had disposed of clothing he wore the day Jolly’s body was found. A jury could reasonably infer Castellano’s consciousness of guilt from his conduct. (People v. Williams (2000) 79 Cal.App.4th 1157, 1167-1168.) Additionally, physical evidence linked Castellano to the crime scene, as Jolly’s blood was splattered on Castellano’s boots.
Castellano argues the $100 swindle “seems insufficient to provoke murder, even among the homeless.” He further claims that even if he had opportunity to commit the murder, many video surveillance cameras in the area did not show him committing the crime. While a $100 swindle may seem insufficient to provoke murder, Castellano admitted the swindle caused a rift between him and Jolly. Viewing the record in the light most favorable to the People, this clash between the two men provided Castellano with motive. Furthermore, simply because video surveillance did not show Castellano committing the crime does not absolve him.
Castellano also claims the DNA evidence raised reasonable doubt. Jolly’s DNA was found in blood spatter on Castellano’s boots. DNA evidence also showed Castellano’s and Jolly’s blood together in a spot at 1070 North Batavia. Castellano argues the presence of blood spots on his boots that contained the DNA of Jolly and an unidentified person and the absence of Castellano’s DNA at the crime scene at 1147 West Struck raised reasonable doubt he was Jolly’s killer. We are not persuaded by Castellano’s argument.
Castellano concedes the evidence “is consistent with a scenario in which Castellano killed Jolly.” He also alleges the evidence could be consistent with “other scenarios.” Where the evidence justifies the jury’s findings, the mere fact that evidence might also be reconciled with a contrary finding does not warrant reversal. “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.” ““‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’” [Citations.]” (Bean, supra, 46 Cal.3d at p. 933.) “The conviction shall stand ‘unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” [Citation.]” (People v. Cravens (2012) 53 Cal.4th 500, 508.) Even if the evidence at trial was susceptible to more than one interpretation as to Jolly’s killer, that is insufficient for reversal. Because there was substantial evidence supporting the jury’s verdict, we affirm.
II. The Trial Court Did Nor Err By Giving the Flight Instruction
At trial, over Castellano’s objection, the court instructed the jury with the flight instruction (CALCRIM No. 372). The instruction advised the jury flight immediately after the commission of the crime “may show [Castellano] was aware of his guilt.” If the jury determined Castellano fled, it was the jury’s duty to decide “the meaning and importance of that conduct.” The jury was further instructed that “evidence that [Castellano] fled cannot prove guilt by itself.” Castellano claims the flight instruction was given in error because there was insufficient evidence to warrant the instruction. We disagree.
Claims of instructional error are reviewed de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 581.) “In general, a flight instruction ‘is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.’ [Citations.] ‘“[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.”’ [Citations.] ‘Mere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt [citations], but the circumstances of departure from the crime scene may sometimes do so.’ [Citation.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1055, italics omitted.) Evidence of flight need not be conclusive to warrant the instruction. (People v. Richardson (2008) 43 Cal.4th 959, 1020.) However, evidence that a defendant left the scene of a crime, by itself, is insufficient to require a flight instruction. (People v. Bonilla (2007) 41 Cal.4th 313, 328.)
Castellano argues the instruction was improper because the record was devoid of evidence showing a purpose to avoid being observed or arrested. Castellano claims he merely visited Laguna Beach as part of his daily routine, not to evade law enforcement. He further asserts he did not immediately flee, but rather remained near the crime scene until after 8:00 a.m. on the day Jolly was found dead. Castellano admits he went to Laguna Beach, some 20 miles away from the crime scene, in the morning of the murder. Police located him there the next day. Castellano was no longer wearing the clothing from the day before. He also gave law enforcement a false name and initially lied about his relationship with Jolly. Castellano’s routine the day of the murder did not match the daily timeline he described in his statement to police.
This evidence justified giving the flight instruction. The circumstances permitted a reasonable factfinder to conclude Castellano fled the crime scene to avoid arrest. Therefore, the court properly instructed the jury it could consider Castellano’s flight when determining his guilt or innocence. In any event, even if the trial court erred by giving the instruction, any error was harmless. Flight was a minor issue in the case and the instruction made no prejudicial difference to the outcome, given the nature of the remaining evidence.
DISPOSITION
The judgment is affirmed.



O’LEARY, P. J.

WE CONCUR:



BEDSWORTH, J.



ARONSON, J.