The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge United States District Court
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Fernando Casillas (Casillas or Petitioner), a California prisoner proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in this court (Petition). Petitioner contests his confinement and claims his fifth, sixth and fourteenth amendment rights to due process and a fair trial were violated because the trial court erroneously instructed the jury. Specifically, he argues that the trial court committed error when it instructed the jury on circumstantial evidence under CALCRIM No. 224 instead CALCRIM No. 225. Respondent filed an answer, arguing that the court should deny the Petition in its entirety because the state court determinations were not contrary to, or an unreasonable application of, clearly established federal law, and were not based on an unreasonable determination of the facts in light of the evidence presented. Petitioner filed a traverse. Both parties consented to magistrate judge jurisdiction. Pet'n at 11; Answer at 3.
This court has reviewed the Petition, answer, traverse, and the complete record in this case. After a thorough review, the court ORDERS that the Petition be DENIED in its entirety.
Casillas went through a first trial that resulted in a hung jury. Lodgment 2 at 282. In a retrial, a jury convicted Casillas of one count of robbery and one count of assault with a deadly weapon on April 22, 2008. Lodgment 2 at 400-402. For both counts, the jury found true that Casillas personally used a firearm and personally used a deadly weapon. Id. For the first count, the jury also found true an allegation that Casillas intentionally and personally discharged a firearm. Id.
On September 9, 2008, the trial court sentenced Casillas to 22 years in prison. Lodgment 2 at 520. Casillas timely appealed. Lodgment 1 at 193.
The California court of appeal denied Casillas' appeal and affirmed his convictions on November 10, 2009. Lodgment 6. Casillas filed a petition for review with the California Supreme Court on December 22, 2009. Lodgment 7. That court summarily denied without comment the petition for review. Lodgment 8.
Casillas filed this Petition on July 12, 2010. Respondent filed an answer, and Casillas filed a traverse.
On the night of April 27, 2007, Donald Freeman and Maria Hector were in Freeman's parked van watching a DVD movie. Freeman sat in the driver's seat while Hector was seated on the back seat. Two men, later identified as Casillas and Noe Perez, approached the passenger side of the van and signaled for Freeman to roll down the window. Freeman unlocked the doors and the two men rushed into the van. Perez tried to stab Freeman in the stomach. Freeman fought back but sustained a stab wound to his leg. Casillas fired a gun aimed at Freeman's head, but missed. Freeman was able to get out of the van and run away without being shot. As he ran, he heard a second shot being fired. Freeman watched from a distance and saw Casillas and Perez get out of the van and leave the immediate area. Freeman returned to the van. After confirming that Hector was unharmed, he picked up the keys to the van which were lying on the ground outside the passenger door, and proceeded to follow Casillas and Perez in the van. While driving, Freeman called 911. Freeman described his assailants as two Hispanic males wearing blue jeans with one assailant wearing a blue striped shirt and the other wearing a solid blue shirt.
Police officers Pollom and Nigro separately responded to the 911 call. As Officer Pollom approached the two suspects, he saw Casillas kneel beside the front tire of a parked car. After Officers Pollom and Nigro handcuffed the suspects, Officer Pollom found a gun where Casillas had been kneeling. Three of the six shells had been fired. Officer Pollom also impounded a folding knife he found wedged in a fence nearby. The officers retrieved from Perez a black bag containing Freeman's portable DVD player and DVDs.
After the arrest, Freeman identified Casillas as the individual who shot [at] him. He identified Perez as the individual who attacked him with the knife. Freeman did not identify Casillas or Perez at a preliminary hearing. At trial, Freeman identified the two men and explained that he had not identified them at the preliminary hearing because he was scared.
Hector testified that although she saw only one person get in the van, there could have been two people. She also testified to seeing a gun and hearing a gunshot. She said the individual had been wearing a blue striped shirt. Hector testified that the shirt Casillas had been wearing at the curbside lineup was not similar to the shirt worn by the man who she saw enter the van.
A ballistics expert testified that the bullet recovered from the driver's side door of Freeman's van matched the revolver that the officers found at the scene. DNA tests performed on the gun by a criminalist showed there were three different contributors. Perez and Freeman were excluded as having contributed to the sample, but Casillas could not be excluded as a contributor. The criminalist testified that 1 in 130 persons in the Hispanic population would be identified as possible contributors.
Casillas requested the court instruct the jury with CALCRIM No. 225, which focuses on circumstantial evidence to prove intent. After reviewing both CALCRIM No. 224 and CALCRIM No. 225, the trial court denied the request and instructed the jury on how to ...