P. v. Castillo

Filed 10/11/06 P. v. Castillo CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

After a trial arising out of a bank robbery, a jury convicted defendant Joseph Castillo of conspiring to commit a robbery (Pen. Code, § 182; count 1)[1], two counts of unlawfully transporting a PWA AR-15 assault weapon (§ 12280; counts 2, 20), unlawfully taking or driving two vehicles (Veh. Code, § 10851; counts 4, 5), falsely and maliciously reporting bombs at three schools (§ 148.1; counts 6, 7, 8), assaulting two men with an assault weapon (§ 245, subd. (a); counts 9, 22), kidnapping four people for robbery (§ 209; counts 10, 11, 12, 14), and robbing five people (§ 211; counts 15, 16, 17, 18, 19). The assault, kidnapping, and robbery counts all involved personal use of an assault weapon. (§§ 12022.5, 12022.53, 12022.) The jury acquitted defendant of kidnapping a fifth person for robbery, but convicted him of the lesser offense of felony false imprisonment. (§ 236; count 13.)

At the sentencing hearing, the trial court granted the prosecutor’s motion to reduce the kidnapping counts (10, 11, 12, 14) to felony false imprisonment. This eliminated a mandatory life sentence. The trial court sentenced defendant, then age 25, to prison for 45 years as follows: the midterm of eight years for assaulting John Bruning (count 9) enhanced by six consecutive years for personal use of an assault weapon; plus eight months for vehicle theft (count 5); another eight months for false bomb threats (count 6); two consecutive terms of two years and eight months for false imprisonment (counts 10, 11) enhanced by personal use of an assault weapon; another two years eight months for assaulting Mike Clarke (count 22); and five consecutive terms of three years four months for robbery (counts 15-19) enhanced by personal use of a firearm. The court imposed the following concurrent terms: two 6-year terms for transporting an assault weapon (counts 2, 20); two years for vehicle theft (count 4); two 2-year terms for bomb threats (counts 7, 8); and two 8-year terms for felony false imprisonment (counts 13, 14). The conspiracy sentence (count 1) and one felony false imprisonment (count 12) were stayed pursuant to section 654.

Defendant’s sole argument on appeal is that there is insufficient evidence to support his conviction of count 2, specifically, there is no corroboration of his confession to transporting the AR-15 assault weapon that he used in the robbery from southern California to Santa Cruz. For the reasons stated below, we will affirm the judgment.

Trial evidence

In view of defendant’s limited argument on appeal, we will briefly summarize the evidence of the bank robbery and then focus on the evidence supporting defendant’s conviction of count 2, which the prosecutor argued was transporting a PWA AR-15 assault weapon from San Bernardino to northern California on November 28, 2003.

At trial there was ample evidence that, shortly after 11:00 a.m. on Monday, December 1, 2003, defendant, Nonu Randy Aluni, and Frank Otele robbed a Wells Fargo bank in Aptos. Photographs from a new bank security system and testimony from many bank customers and employees established that defendant was armed with a PWA Commando AR-15 assault rifle, a weapon some customers recognized as what the military calls an M16. As Otele stood guard at the bank’s door holding a Ruger Mini 14 rifle, defendant ordered two bank employees to produce the keys and combination to the ATM machines, from which he removed cartridges full of $20 bills. Defendant had been coached to make this request by a former teller at that bank, Kristen Swenson, who was the girlfriend of defendant’s younger brother, Anthony. During the robbery, Aluni jumped over a counter and removed currency and coins from the tellers’ drawers, carefully leaving behind the specially wrapped bait money.

The robbers left the bank’s parking lot in a blue-green Honda Civic that had been stolen earlier that morning from a Santa Cruz apartment complex. Police officers and sheriff’s deputies, who had been alerted by cell phone calls and a bank employee pressing an alarm button, gave chase onto and off of Highway 1. The robbers abandoned the car by Pot Belly Beach in Aptos. After a confrontation with Mike Clarke, a caretaker of the private beach property, defendant and Otele were apprehended sitting at a picnic table in a campground at New Brighton Beach. Aluni was arrested after he was found hiding on a cliff a few yards away. On the picnic table were, among other things, a PWA Commando AR-15 assault rifle with two 30 round magazines, a 40 round magazine for a Ruger Mini 14, and a backpack that contained $85,060 in cash and 155 stamp books. Nearby was another backpack containing $1,680 in currency and $80 in rolled coins. In defendant’s pockets were four loaded AR-15 magazine clips. A loaded Ruger Mini 14 rifle was recovered on a steep cliff about one hundred yards from the picnic table. Two more loaded bullet clips were found near the Ruger. The money recovered was $2,227 less than what the bank counting as missing.

In custody, defendant waived his Miranda rights and made a lengthy confession to Santa Cruz County Sheriff’s Deputy Robert MacAulay that he was the mastermind of the robbery and related crimes. This recorded interview was in evidence at trial. Defendant admitted that immediately prior to the robbery, he had called in bomb threats to three nearby schools, Soquel High School, Aptos High School, and Cabrillo College, in order to divert law enforcement. He also explained that they had stolen another car that morning, a silver Honda Civic, to use as a getaway car, but they left it behind because Otele, the driver, panicked.

Regarding the guns involved in the robbery, defendant said the following. Only two guns were involved. He obtained them around 4:00 or 5:00 p.m. on Friday, November 28, 2003, the day after Thanksgiving, by breaking into an apartment in Redlands, near San Bernardino, and taking the two guns, magazines, ammunition, and latex gloves. No one was with him when he went in through a bedroom window. It was the residence of a coworker, Luis. Luis and defendant were security guards who worked for a security firm called Men in Black (“MIB”). He knew Luis was a gun collector from prior conversations. Defendant had been to his apartment once before.

Defendant further stated that, on November 28, 2003, he drove from San Bernardino to Livermore with his girlfriend, Marisol Jara, and her son, because she insisted on coming with him. They traveled in her car, an Acura Integra. Three other men, Aluni, Otele, and Danny Solomona, traveled in defendant’s car, a white Honda Civic with a black hood. Aluni and Solomona were also MIB security guards. Defendant had not met Otele until November 28. Aluni brought Otele into their plan. Otele was a car thief.

Defendant further stated that the stolen guns were originally in his car. He hid them in Jara’s car when she was distracted by her son running off. He figured the police were more likely to stop his car due to its condition than her car. They all spent that Friday night in his grandfather’s house in Livermore. The next day, he switched the guns back to his car.

Jara testified as follows. She met defendant in August 2003 while he was working for MIB as a bouncer in a nightclub in San Bernardino. They began dating and he moved in with her, her son, and her parents. She met his coworkers, including Aluni, Solomona, and Luis Cervantes. They used to have meetings on Saturday nights after work at Denny’s restaurants.

On Wednesday, November 26, 2003, the day before Thanksgiving, Cervantes drove her and defendant to a liquor store. While she was talking on her cell phone, she heard them talking about guns. When she got off the phone, she asked what they were talking about. Defendant changed the subject and did not reply.

She knew defendant had plans to travel to northern California after Thanksgiving with Solomona and Aluni. On Friday after Thanksgiving, Jara insisted on accompanying defendant, so he acceded. She quickly packed her car. Meanwhile Aluni, Solomona, and Otele arrived. That was the first time she had met Otele. Defendant drove up in his car. He finished packing her trunk while she went inside to get ready.

As the group drove away in the two cars, defendant got a telephone call mentioning a screen. He said he needed to make a quick stop. Both cars stopped at Cervantes’ apartment complex for about five minutes. Defendant worked under the hood of Jara’s car, fixing an oil leak. Solomona stayed outside and talked with Jara while Otele and Aluni went into the apartment complex. She did not see them carrying anything back to the car. As they drove north, Jara overheard defendant speaking to Cervantes on his cell phone, saying they had stopped at his apartment.

Jara had no idea there were weapons in her car. She saw no guns or ammunition.

During an earlier police interview, Jara said that defendant and Cervantes had mentioned an M16 while talking about guns in a car. She also said, as they were leaving town the day after Thanksgiving, defendant received a telephone call from Cervantes. Cervantes said he had forgotten to check on a screen.

Some neighbors testified that they saw the men stop at Cervantes’s apartment the afternoon of November 28, 2003. One neighbor saw Otele carrying what appeared to be a plate wrapped in foil.

Telephone records showed that Cervantes and defendant exchanged 46 cell phone calls during November 2003. The last call from Cervantes to defendant was on the 28th at 5:26 p.m.

Around 9:35 p.m. on November 28, 2003, the Redlands police received a telephone report of a burglary at the residence of Luis and Dawn Cervantes. Corinne Lane, a community services officer, came out to take their report of missing guns, ammunition, jewelry, and other items. They reported eight stolen guns: a .22 long Ruger handgun, a 9 millimeter Ruger P95, a 40 caliber 23C Glock, a Ranch Mini 14 Ruger, an M77 .30-06 rifle with a scope, an M77 .22 long rifle with a scope, a Browning 338 semi auto rifle, and a “PAW” (presumably PWA) AR Commando T23. They suspected that the point of entry was a window in the master bedroom from which a screen had been removed.

Cervantes was arrested on December 4, 2003. He told the Redlands police that his brother had two of the guns he had falsely reported as stolen. Another of the reportedly stolen guns was found in Cervantes’s wife’s car.

Police officers testified that it is legal in California to own a Mini 14. The AR-15 rifle has never been registered. It could not be legally owned if not registered before 1991.

On December 5, 2003, Santa Cruz County Sheriff’s Deputy Robert Gidding participated in a search of defendant’s car, which was then secured in a warehouse. Among the items found in the car were defendant’s driver’s license, 352 .223 cartridges, some in boxes, a magazine clip loaded with .223 cartridges, and two soft-sided rifle cases.

Sufficiency of the evidence of the corpus delicti

Defendant contends that there was insufficient evidence to support his conviction of one of the two counts of transporting a PWA AR-15 assault weapon (§ 12280),[2] because there was no evidence corroborating his confession to stealing a PWA AR-15 rifle from Luis Cervantes’s residence in Redlands and bringing it to Santa Cruz.

The jury in this case was instructed that a PWA AR-15 is an assault weapon and that it is a crime to transport an assault weapon in California. The elements of the crime are transporting the weapon while knowing of its presence when a person knew or reasonably should have known it is an assault weapon.

The jury was also instructed, among other things, in terms of CALJIC No. 2.72: “No person may be convicted of a criminal offense unless there is some proof of each element of the crime independent of any confession or admission made by him or her outside of this trial.”

People v. Alvarez (2002) 27 Cal.4th 1161 explained: “In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself--i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant.” (Id. at pp. 1168-1169.) “We have said that the independent-proof rule ‘essentially precludes conviction based solely on a defendant’s out-of-court statements.’ [Citations.] In other words, as historically applied, the rule requires corroboration of the defendant’s extrajudicial utterances insofar as they indicate a crime was committed, and forces the People to supply, as part of their burden of proof in every criminal prosecution, some evidence of the corpus delicti aside from, or in addition to, such statements.” (Id. at p. 1178.) After enactment of the Truth-in-Evidence provision (Cal. Const, art. 1, § 28, subd. (d)), the corpus delicti rule retains vitality in two areas. It requires a jury instruction and “insufficient independent proof of the corpus delicti [is] a discrete ground for reversal on appeal.” (People v. Alvarez, supra, 27 Cal.4th at p. 1178.) “Only a ‘slight or prima facie showing, permitting the reasonable inference that a crime was committed, is sufficient.’ “ (People v. Ray (1996) 13 Cal.4th 313, 342.)

Defendant argues that Cervantes never reported that a PWA AR-15 was stolen from him and there was no corroboration that this weapon was in the trunk when defendant drove north. Defendant distinguishes the corpus delicti cases cited by the Attorney General, which do not involve transporting or possessing a weapon or a drug. (People v. Hawkins (2004) 124 Cal.App.4th 675 [conviction of maintaining a crack house]; People v. Jennings (1991) 53 Cal.3d 334 [convictions of robbery and rape]; People v. Jones (1998) 17 Cal.4th 279 [conviction of forcible oral copulation].)

Weapon possession cases establish that “the corpus delicti may be proven by circumstantial evidence and reasonable inferences drawn therefrom . . . .” (People v. Wilde (1947) 82 Cal.App.2d 879, 880-881.) People v. Reeves (1974) 39 Cal.App.3d 944 pointed out that the very existence of a sawed-off shotgun was proof that “someone sawed it off and someone possessed it.” (Id. at p. 946.) By the same logic, the existence of a gun in a location other than a gun-making factory tends to suggest that someone brought it to that location.

The robbers in this case obviously had the AR-15 and the Mini 14 before they brought them into the Wells Fargo bank. The question is where did the weapons come from. Although we see no testimony regarding the ownership of the Mini 14 found on December 1, 2003, near the location of defendant’s arrest, it seems highly likely that it was the same weapon that Otele used during that day’s robbery and that Cervantes, a coworker of defendant’s, reported stolen from his residence on November 28, 2003, shortly after defendant and his confederates visited the residence.[3]

We recognize that Cervantes did not report an AR-15 as stolen, but ownership of such a unregistered weapon was illegal, as a gun collector should have known. There was evidence that defendant and Cervantes had been discussing such a weapon, an M16, on November 26, 2003. Two bank customers recognized the AR-15 as what the military calls an M16. There was evidence that defendant helped pack the trunk of Jara’s car on November 28 while she was otherwise occupied. While no one testified to seeing an AR-15 in defendant’s or Jara’s car, two soft-sided rifle cases were found in defendant’s car after the robbery. Establishing the corpus delicti of transportation does not require proving in which car the weapons were transported. We believe that all these circumstances taken together amount to prima facie corroboration of the essence of defendant’s confession, that he obtained the weapons, including the AR-15, from Cervantes and brought them from San Bernardino to northern California on November 28, 2003. (Cf. People v. Ray, supra, 13 Cal.4th 313, 342.)

Disposition

The judgment is affirmed.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

__________________________

MIHARA, J.

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MCADAMS, J.

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[1] Unspecified section references are to the Penal Code.

[2] Section 12280 provides in part: “(a)(1) Any person who, within this state, . . . transports . . . any assault weapon . . . , except as provided by this chapter, is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for four, six, or eight years.”

[3] We do not infer that the weapons were necessarily taken during this visit. The neighbors did not see anyone carrying anything sizable. It is possible that defendant had already obtained the weapons and not by burglary. It is clear that defendant’s confession was not entirely truthful. For example, he originally claimed not to know the third man, Danny Solomona, in his car until the police pointed out his telephone number was in defendant’s cell phone. Eventually defendant acknowledged he was a coconspirator.