P. v. Castro 4/22/05 CA2/8

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B168064A

Case Date: 06/22/2005

Preview:Filed 4/22/05 P. v. Castro CA2/8 Opinion following rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

THE PEOPLE, Plaintiff and Respondent, v. RONAL ANTONIO CASTRO, Defendant and Appellant.

B168064 (Los Angeles County Super. Ct. No. BA232610)

APPEAL from a judgment of the Superior Court of Los Angeles County. Terry A. Green, Judge. Reversed as to sentence only and otherwise affirmed. Doris S. Browning, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jeffrey B. Kahan and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________ Defendant Ronal Antonio Castro appeals from the judgment entered following a jury trial that resulted in his conviction of two counts of lewd act upon a child under the age of 14 years. He contends: (1) he was denied due process as a result of the prosecutor's comments on defendant's exercise of the right to remain silent; (2) the trial court erred by allowing the victim's mother to sit with the victim while the victim testified; (3) the prosecutor committed various acts of prejudicial misconduct; and (4) to the extent defense counsel failed to object to the alleged misconduct, such failure constitutes ineffective assistance of counsel. In an opinion filed July 15, 2004, we affirmed the judgment. We subsequently granted defendant's petition for rehearing in light of the recent United States Supreme Court decision in Blakely v. Washington (2004) 542 U.S. ___, 124 S.Ct. 2531. 159 L.Ed.2d 403 (Blakely), and asked the parties to brief the issue. After considering the parties' supplemental letter briefs, we conclude that the trial court's selection of the high term violated the principles set forth in Blakely. Accordingly, we reverse the judgment as to sentence only and remand to the trial court for resentencing in accordance with Blakely. FACTUAL AND PROCEDURAL BACKGROUND Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence established that the victim, Daisy, also known by the name "Daniela," was 10 years old and in the fourth and fifth grades when she lived with her mother, brother and grandparents in the same apartment complex, on the same floor, as defendant, his wife and children.1 Sometime before Daisy's 11th birthday in December 2000, defendant sexually molested and then raped Daisy. Daisy did not report the crime until almost two years later.
1

Defendant's mother-in-law, Graciella, also lived in the apartment building with her son (defendant's brother-in-law), Noe. Defendant's wife, Lucila, and Daisy's mother were from the same town in Mexico and had known each other since childhood.

2

Daisy testified that, on a Friday when she was 10 years old, she was in the hallway talking to defendant's sister-in-law, Olivia, who was sitting on the stairs leading to the first floor. Defendant came up, grabbed Daisy by the arm, then started to touch her. Defendant touched Daisy's "private parts," including her breasts, buttocks and vagina. Defendant told Daisy not to tell her parents because, if she did, something bad would happen to her family. Daisy believed him and was afraid. When she went home after this encounter with defendant, Daisy felt sick to her stomach because defendant had touched her. Daisy's mother was not home, and in response to her grandmother's inquiry as to why she was crying, Daisy said she had fallen down. Daisy did not want her grandmother to know what had happened. When Daisy's mother returned home that night, Daisy did not tell her what had happened. It was either the next day or the following week, but definitely a Saturday, that Daisy recalled returning from throwing away some trash and encountering defendant standing at the screen door of his apartment. Defendant pulled Daisy into the apartment, closed the door behind them, threw her onto the bed, took off all her clothes and his own, then raped her. Daisy tried to scream, but defendant covered her mouth with his hand. When it was over, defendant repeated his warning not to say anything; this time he added a threat that he would kill her family if she told. Back in her own apartment, Daisy's grandmother asked why she had been crying. Daisy denied crying and went into the bathroom where she took a bath before going to bed. Daisy did not want to report the attack because she was afraid her mother would blame Daisy for what defendant did. After the incidents with defendant, Daisy tried to kill herself by taking 18 Benadryl pills. When she told the school psychologist that she tried to kill herself, she was admitted to a hospital for "crazy people." Although the doctors asked her why she had tried to kill herself, Daisy did not tell them about defendant. It was not until May 27,

3

2002, that Daisy told her grandmother what had happened.2 Defendant was arrested on June 10, 2002. Defendant was charged by information with commission of a lewd act upon Daisy, a person under 14 years of age and commission of a lewd act by use of force, violence or duress (Pen. Code,

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