Full title: THE PEOPLE, Plaintiff and Respondent, v. ANTHONY CASTELLANOS, Defendant and Appellant. B190581 California Court of Appeal, Second District, Seventh Division September 12, 2007
Court: California Court of Appeals, Second District, Seventh Division
Date published: Sep 12, 2007
Facts
On May 21, 2004, 11-year-old Joey Holguin and his 12-year-old brother Nicky went to Castellanos’s apartment with French fries to make chili fries. The Holguin family and Castellanos—a King Kobra gang member known as “Serio”—lived in the same Bell Gardens apartment building. The boys were not supposed to be in Castellanos’s apartment because their father (Nick Holguin, Sr.) knew Castellanos was a gang member. At that time, Castellanos had only been out of jail a few weeks and had tried to recruit both Nicky and another brother (Michael) for the King Kobras, but both had refused and Castellanos had called them derogatory names. Joey was afraid of him.
Nicky sat on the couch, but Joey stayed in the corner. After Castellanos started cooking the French fries, he came out of the kitchen. He locked both the front screen door and wooden door, looked out the peephole and then locked the back door. Then he walked over, pulled a gun from his waistband and pointed it at Joey with a “mean” expression. Scared and thinking he was going to get shot, Joey ducked, dropped his head and tried to cover himself with his hands.
Castellanos then turned toward Nicky and pointed the gun at him. Castellanos still had a “mean” expression, and Nicky looked scared. Castellanos clicked the hammer back with his thumb and with his finger on the trigger said, “What do you think about this?” He waited about three seconds and then fired the gun. Nicky’s head went back and he was bleeding from the top of his eyebrow. Castellanos said, “Oh, shit” and ran. Castellanos’s sister ran into the room. Joey told her what had happened and ran to get his father. A family friend (Ricardo Arroyo) heard the shot and saw Castellanos running away. Nick Sr., Michael and Arroyo found Nicky sitting on Castellanos’s couch, covered in blood. Nicky died from the gunshot wound to his head.
After the shooting, Castellanos went to the residence of Juan Pleitez, a former King Kobras gang member. Castellanos told Pleitez he had “fucked up” and “didn’t know what to do.” Pleitez saw the revolver in Castellanos’s pants. Pleitez didn’t want to get in trouble and told Castellanos to leave. Castellanos then went to Robert Nunez’s house. He said, “I shot Nick in the head,” and complained he was “going to jail for the rest of his life.” Nunez told Castellanos to leave and he did, dropping the gun outside.
The next day, Castellanos called Pleitez from “Puppet’s” house and told Pleitez to get the gun from where Castellanos had left it behind a dumpster. Pleitez retrieved the gun, brought it home, and unloaded it, noting one round had been fired. He put the empty shell casing in a drawer in his house. Pleitez then called his brother Felix and told him what had happened. Pleitez and his brother wrapped the gun in a shirt, and Felix took it to his house, but police later seized it.
On July 26, law enforcement authorities in Quinette County, Georgia, contacted Los Angeles Sheriff’s Detective Phillip Martinez and advised that Castellanos was in custody there. Martinez took over custody and returned Castellanos to California.
Castellanos was charged with murder, assault with a firearm, and recruiting criminal street gang activity, with firearm and gang allegations as to the first two counts.
Issue
Decision
As for CALJIC No. 8.45, Castellanos says the trial court erred in failing to instruct the jury that “a violation of section 245, subdivision (a)(2) of the Penal Code may also be charged as or result in a misdemeanor.” Because there was no factual support in the record for such an instruction or theory of involuntary manslaughter, the trial court did not err in failing to define assault as an unlawful act not amounting to a felony. (See People v. Benavides (2005) 35 Cal.4th 69, 102-103.)
The judgment is affirmed.