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White v. McDowell

United States District Court, E.D. California

April 14, 2017

JAMES E. WHITE, Petitioner,
v.
NEIL MCDOWELL, Warden, Respondent.

          FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

          MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent, Neil McDowell, warden of Ironwood State Prison, is hereby substituted as the proper named respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Respondent is represented by Tami M. Krenzin of the office of the Attorney General.

         I. Procedural Background

         Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Merced, following his conviction by jury trial on May 31, 2011, for first degree murder, felon in possession of a firearm, and felon in possession of a prohibited weapon. (Clerk's Tr. at 628-31.) On August 16, 2011, Petitioner was sentenced to an indeterminate term of twenty-five (25) years to life. (Id.)

         Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate District, which affirmed the judgment on April 16, 2013. (Lodged Docs. 1-4.) Petitioner sought review from the California Supreme Court. (Lodged Docs. 5-6.) The California Supreme Court denied review on July 17, 2013.

         Petitioner did not file any collateral challenges to his conviction.

         On August 4, 2014 Petitioner filed the instant federal habeas petition. (Pet., ECF No. 1.) On May 31, 2016, Petitioner filed a second amended petition. (ECF No. 30.) Petitioner presents three claims in the second amended petition: (1) that evidence of vandalism of the victim's home should not have been admitted; (2) that the trial court erred in admitting evidence of Petitioner's domestic violence prior offense; and (3) that the prosecution committed misconduct by improperly arguing facts outside of evidence during closing statements. (Id.)

         Respondent filed an answer to the petition on March 30, 2016. (ECF No. 21.) As the second amended petition was filed after Respondent's answer, Respondent was provided an opportunity to amend his answer. Respondent notified the Court that amendment of the answer was not necessary. (ECF No. 33.) The matter stands ready for adjudication.

         II. Statement of the Facts[1]

         FACTS

In 2002, Mauree Lashe Castle (Castle) met defendant, and they started dating. In 2003, they moved into a house together in Merced.
In 2003 or 2004, Castle introduced defendant to Stephen Jackson. Jackson and Castle were long-time family friends. Jackson was a former college football player and worked as a carpenter and handyman. He was described as a stout, muscular man.[fn2] Jackson had a son, Khalil, who had lived with Jackson since he was four years old, and they were very close.
FN2: The coroner testified that Jackson was five feet eight inches tall and weighed 226 pounds. Jackson's driver's license stated that he was six feet one inch tall and weighed 245 pounds.
Defendant and Jackson became friends. Defendant, known as "Pedro, " occasionally worked for Jackson. Jackson and Khalil often saw defendant and Castle at family gatherings. Defendant and Jackson socialized, and Castle and Khalil testified they never saw any problems between them.[fn3]
FN3: By the time of trial, Khalil described defendant as his father's "ex-friend." Khalil was 11 years old when he saw defendant kill his father, and he was 16 years old when he testified. Khalil admitted he had been arrested for theft and the sale of marijuana. These incidents occurred after Jackson had been killed. Khalil testified he probably would not have committed those acts if his father had not been killed.
Defendant's relationship with Castle
Castle testified that in 2002, at the beginning of her relationship with defendant, they had a lot of fun together. However, the relationship subsequently became physically abusive. Castle testified that between 2003 and 2006, defendant was physically abusive toward her on four or five occasions. "It wasn't a constant thing. It didn't happen every day."[fn4]
FN4: In issue II, post, we will address defendant's contentions that the court improperly admitted the domestic violence evidence as relevant to motive, and that it should have excluded Castle's testimony as improper character evidence.
Castle testified that the first incident occurred in November 2003, after they had been at a friend's house and argued. As they walked to their car, defendant hit Castle. Castle hit him back, and defendant "continued to hit" her. He used an open hand, a closed fist, and also kicked her. Defendant slammed her hand into the car door. Castle did not call the police. Defendant later apologized, and Castle forgave him.
Castle testified the second incident occurred about a year later, and the third incident was six months after that. Defendant usually hit her in the face with a closed fist. She never called the police because she was afraid "he'd be much more upset and come after me even harder than the time before ...." Defendant threatened Castle, and told her that "wherever I went he would find me ...." Castle was afraid for herself and her daughter.
Castle testified about another incident when defendant was intoxicated, produced a gun, and placed it on her chest. Defendant said he loved her and he was not going to let her go. Castle left defendant three or four times, but she always returned.
Castle breaks up with defendant
Castle testified that she did not tell Jackson about defendant's physical abuse until late in 2006, just before she left defendant. Jackson was concerned about her safety.
Castle testified that in November 2006, defendant was intoxicated and wanted to drive his car. Castle told him not to drive. Defendant became upset and hit Castle in her daughter's presence. That was "the last straw" for Castle, and she decided to leave defendant.
Castle testified that she waited to leave defendant until he was out of town, because she knew defendant would never let her leave. On that particular day, defendant went to Oakland with Jackson. Castle left Jackson a phone message about what she was going to do and asked him to let her know when they were going to return. Castle packed up her belongings, and her mother picked her up from defendant's house. Castle left a note for defendant, saying that she was leaving him. Later that day, Jackson sent Castle a text message that they were driving back from Oakland.
After Castle left Jackson, she lived with her mother in Merced. Defendant contacted her and was very upset. He wanted to reconcile, but Castle refused. Castle testified that defendant "wasn't trying to hear it" and insisted they could work things out. Defendant repeatedly called Castle and tried to reconcile.
Castle moves in with Jackson
In December 2006, Khalil was eleven years old and in the fourth grade. Jackson and Khalil lived in a mobile home in Merced. At that time, Jackson and Castle realized they had feelings for each other, and they began a dating relationship. Soon afterwards, Jackson proposed to Castle.
At some point in January 2007, Castle and her child moved into Jackson's mobile home. Khalil testified that Jackson and defendant were no longer friends once Jackson and Castle began their relationship.
Castle testified about an incident which occurred after she moved in with Jackson. Jackson and Castle were at the home of Jackson's mother in Merced. Defendant arrived and again asked to reconcile with Castle. Defendant asked Castle if she was sleeping with Jackson, and he became angry.
The gathering at defendant's house
Joseph Coney, Jr., was married to Jackson's sister. Coney knew defendant, Jackson and Castle. He also knew that Castle had left defendant and moved in with Jackson.
Coney testified that he attended a gathering at defendant's house when everyone was drinking beer.[fn5] Defendant was angry about Jackson. Defendant said that he felt like he wanted to kill Jackson. Defendant said he felt "like hiding by his mom's house and shooting him or something of that sort." FN5: Coney testified this incident occurred before the vandalism at Jackson's mobile home, and before Jackson obtained the restraining order against defendant.
Coney did not take defendant's comment seriously. However, Coney told his wife (Jackson's sister) about defendant's comment.
Defendant's call; vandalism at Jackson's mobile home
On January 13, 2007, Jackson, Castle, and Khalil were in the San Francisco area. Castle testified that while they were out of town, she received a telephone call from defendant. Defendant was very angry and said his landlord had given him an eviction notice. Defendant blamed Castle and said it was her fault that he was being evicted. Defendant said that she "would pay for it."
When Jackson, Castle, and Khalil returned to the mobile home that night, they discovered that it had been vandalized. The windows were broken, the interior was "trashed, " the television was broken, and several things were missing. Jackson's car had been parked there, and the windows were also broken.
Castle testified that she immediately felt defendant was responsible because Jackson and Castle did not have any enemies, and "[t]here was no one else who I could even think about that, you know, would have done that." Castle had previously heard that defendant "talked about vandalizing [Jackson's] car because I was using one of his cars ...."[fn6]
FN6: In issue I, post, we will address defendant's contentions that the court improperly allowed the prosecution to introduce evidence about the vandalism of the mobile home as relevant to motive.
Castle and Jackson filed a police report about the vandalism. Castle told the police that she thought defendant was responsible, because she had ended their relationship and defendant had made telephone threats about the eviction notice.
Castle testified that Jackson was upset about the vandalism and "wanted to take matters into his own hands, but he decided not to. He prayed about it." Jackson was concerned about Khalil's safety because the child was frightened. They moved out of the mobile home because it was not safe to stay there. Jackson and Castle continued to live together for a short period of time, and then Castle moved back to her mother's house.
The restraining order
On or about February 6, 2007, Castle filed a request in superior court for a restraining order to keep defendant away from Castle, Castle's mother, Castle's daughter, Jackson, and Khalil. The request was based Castle's declaration about the vandalism incident, her belief that defendant was responsible for the vandalism, defendant's telephone threats, and his prior acts of domestic violence. [fn7]
FN7: The prosecution introduced the application and the restraining order as an exhibit.
The court granted Castle's request, and a temporary restraining order was issued against defendant with a notice for defendant to respond and appear for a hearing on further issuance of a restraining order.
At trial, Castle testified that she was frightened after the vandalism incident and believed defendant was responsible. Castle testified that she requested the restraining order as a result of the vandalism incident, to keep defendant away from Jackson, Khalil, Castle, and Castle's daughter. Khalil testified that he knew about the restraining order. Jackson never expressed any fear of defendant, but told Khalil to watch out and call him if anything happened.
Defendant complains and threatens Castle
Castle testified that shortly after the restraining order was issued, defendant saw her while he was driving. He stopped his car in the middle of the street and obstructed traffic. Defendant was upset and told Castle, "[O]h, you and [Jackson] got a restraining order on me ...." Defendant "kind of chased me around the car and he jumped back in [to his car] and drove off." Castle was frightened by the incident.
Castle testified about another incident when defendant called her and complained about the restraining order. Castle was in the grocery store when she received the call, and defendant said: "[B]itch you're dead ...."
The Wal-Mart incident and the text message
Joseph Coney, Jr., Jackson's brother-in-law, testified that he heard about the vandalism at Jackson's mobile home, and knew that Jackson and Castle believed defendant was responsible. Coney heard that Jackson had obtained a restraining order against defendant.
Coney testified that he also heard that defendant had a gun. Coney was concerned that the situation between defendant and Jackson was escalating. Coney told Jackson about defendant's prior statements, and that defendant had a gun. Jackson seemed to dismiss it.
In February 2007, Jackson and Khalil were driving out of Wal-Mart's parking lot. They passed defendant's white van as he traveled in the opposite traffic lane. Khalil thought defendant was about to make a turn, but instead defendant stopped in the middle of a busy intersection. Khalil testified that defendant held up the restraining order documents while he was still in his car. Defendant then got out of his car and walked up to the driver's side of Jackson's car. Defendant cursed at Jackson, and Jackson cursed back at him. Jackson stayed in the car. Jackson told defendant that they should go to the adjacent gas station and "get it on." Khalil thought they were going to fight, but defendant drove away. Jackson told Khalil not to worry and that everything would be okay.
Khalil testified that around the same time, Castle showed him a text message that Castle said she received from defendant. Khalil testified the text message threatened Castle, that he "wanted her head. He wanted to kill her."
THE DAY OF THE HOMICIDEAround 1:00 p.m. on March 8, 2007, Shdari Crane was at defendant's house in Merced for a short period of time. Defendant and Crane had been dating for a few months. Crane saw a small silver revolver on a master bedroom shelf. She picked it up and realized it was a real gun. Crane had never seen a weapon in defendant's house and asked him about it. Defendant said it was his gun, and that he carried it all the time.

On the afternoon of March 8, 2007, Jackson picked up Khalil from school and they went to the house of Jackson's mother in Merced. Jackson worked on a project at the house. Later in the afternoon, Jackson and Khalil drove to a nearby store to purchase parts. Jackson was driving a Suburban SUV.

Khalil testified that Jackson was driving on Highway 59 when they saw defendant driving a van in the opposite direction. Defendant swerved into Jackson's lane as if he was going to hit them head-on. Defendant then swerved back into his own lane and continued on his way. Jackson drove to the store, they purchased the parts, and then headed back to Jackson's mother's house.

Khalil testified that Jackson drove on Highway 59 and turned onto Cone Avenue. As Jackson made the turn, they saw defendant's van driving out of a mini-market. Jackson made a U-turn and drove back to defendant's van. Defendant stopped, cursed Jackson, and said, "[L]et's go finish this." Jackson and defendant exchanged curses, and they talked about fighting. Jackson pointed toward the mini-mart. Defendant disagreed about the mini-mart because there were cameras there. Defendant said: '"No, let's go over there to your mom's house.'" Jackson agreed and started to drive to his mother's nearby house. Khalil was worried that they were going to fight.

Khalil testified that during the encounter at the mini-mart, defendant raised his hand and gestured as if he was firing a gun. Khalil thought defendant meant he was going to shoot. He did not see defendant with a gun.

The fight

Khalil testified that Jackson was driving on Cone Avenue, heading for his family's house, when defendant's van drove in front of them and cut them off. Jackson had to hit his SUV's brakes to stop suddenly. Defendant's van stopped in the street at an angle, directly in front of Jackson's SUV.

Khalil testified that defendant got out of his van, left the driver's door open, and walked up to Jackson's SUV. Jackson got out of his SUV and closed his driver's door. Defendant was carrying a long, black baton, and hit Jackson in the forehead with it. Jackson tackled defendant, and defendant dropped the baton. Jackson got on top of defendant and punched him. Jackson and defendant were fighting toward the front of defendant's van, near the open driver's door.

Khalil testified that another man walked across the street and approached defendant and Jackson as they were fighting. The man looked right at them and said, '"Hey, stop fighting.'" Jackson continued to punch defendant as the unknown man stood near them.[fn8]

FN8: As we will explain, post, this man was later identified as Benito Aguirre, who lived in the area. Defendant testified at trial that Aguirre wrestled with him for the gun, and it accidentally discharged twice. However, Aguirre testified as a rebuttal witness for the prosecution, that he just told them to stop fighting, that he never touched the gun, and that defendant fired the gun at Jackson.

Khalil testified that defendant repeatedly asked Jackson to let him get up. Jackson finally stepped away, and defendant stood up.

The fatal shooting

Khalil had been watching the fight from inside Jackson's car. At some point, Khalil got out of the car and decided to run to his family's house for help. As he ran, he heard one gunshot. He looked back and saw defendant produce a gun and fire two shots into [Jackson]'s chest. "I seen [Jackson] on the ground and I heard the first shot, boom, I heard another one. My dad kind of stumbled. I seen him fall, and I just kept running, went to get [a neighbor for help]." Khalil had not seen defendant with a gun before he heard the shots."Q. [D]o you remember very clearly seeing this man [defendant] shoot your father twice?

"A. Yes."

Khalil knocked on a neighbor's door and asked for help. Khalil and the neighbor ran back to the scene of the fight. When Khalil and the neighbor returned to the scene, defendant had driven away.[fn9] Jackson was lying on the ground, and bleeding from his stomach and face. Khalil knew his father was badly hurt and tried to talk to him. Jackson told his son that it was going to be alright, and to stay in school and "do what you got to do."

FN9: At trial, Khalil insisted that defendant shot Jackson as Khalil ran for help. On the day of the homicide, however, Khalil told the police that defendant shot Jackson as Khalil ran back to the scene with the neighbor.

Homicide witnesses

Troy Edward Jones was the neighbor who Khalil asked for help. Jones was standing in his garage of his residence, located near the intersection of Cone Avenue and G Street, when he saw a van and a burgundy SUV traveling on Cone Avenue. The van pulled in front and cut off the SUV while the SUV was still moving. The two vehicles stopped, and the two drivers got out of their vehicles and started fighting. Jones thought one of the men briefly returned to the van during the fight.

Jones testified the fight was even until the van's driver produced a long, black stick. The van's driver hit the SUV's driver with the black stick. The SUV's driver fell to the ground and stayed there. Jones thought the van's driver reached under his shirt. Jones heard two gunshots, and saw the van's driver firing a gun toward the ground. Jones went into his house, called 911, and saw the van drive away from the scene.

As Jones was talking to the 911 operator, someone banged on his door. Jones opened the door and found Khalil, who was crying and hysterical, and said that his dad had been shot. Jones and Khalil rushed to the scene. Khalil tried to help his father, but Jones held him back until the police arrived. Jones noticed that a bus and other vehicles had stopped on the street.

Ricardo Munoz was driving a county bus along his regular route on Cone Avenue toward G Street. He saw an SUV and white van stopped on the side of the street. Munoz testified that the van was parked at an angle in front of the SUV. Munoz testified that it appeared the van had cut off the SUV. The driver-side door of the van was open. There were two men fighting in the street. Munoz could not drive around the two vehicles, and he called his dispatcher to contact the police.

As Munoz waited in his bus, he watched the two men as they continued to fight. One man appeared to be getting the better of the fight, and he was on top of the other man as they wrestled on the ground. The first man stood up and started to walk away, and Munoz thought the fight was over.

Munoz testified that a crowd had gathered on the street. A man from the crowd appeared to briefly speak to the man who was already standing up. In the meantime, the man on the ground started to get up, but he did not appear to be a threat to the first man. The first man suddenly turned around and pointed a gun at the other man, and fired two shots at him from 8 to 10 feet away. Munoz did not know where the gunman obtained the weapon, and thought he could have walked to the van and reached into the open door.

Munoz thought the gunman's first shot was into the victim's stomach, because the victim bent forward as if he had been punched in the stomach. The gunman fired the second shot, the victim was hit again, and the victim fell back to the ground. The gunman looked into the bus, and Munoz feared for the safety of his bus passengers. The gunman got into the van and immediately left the area.

Jackson's death

At 4:42 p.m., Merced Police Officer Brian Rinder responded to the scene and saw the bus and several other vehicles stopped at the intersection. He found Stephen Jackson lying on the street. Jackson's eyes were open, and he was bleeding from his mouth and the left side of his head. Rinder opened Jackson's shirt and found a bullet wound in his chest. Jackson had no pulse, and he was not breathing. Rinder found an expandable black baton, also known as an "asp, " about 10 to 20 feet from Jackson's body.

The paramedics arrived and attempted to treat Jackson. Jackson was transported to the hospital where he was pronounced dead.

Initial investigation

While the paramedics were treating Jackson, Officer Rinder spoke to Khalil at the scene. Khalil said that he was a passenger in his father's Suburban SUV. Jackson was driving on Cone Avenue near Highway 59 when he saw defendant driving a white van. Jackson turned and defendant followed them. Defendant pulled alongside of them, in the opposing traffic lane. Khalil said defendant held up his hand and moved his finger as if he was firing a firearm. Khalil said defendant cut them off and made them stop near the G Street intersection.

Khalil told Officer Rinder that defendant got out of the white van and walked up to the driver's side of the Suburban, where Jackson was still seated. Defendant was holding the black baton. Jackson got out of the SUV, and Jackson and defendant started fighting in the street.

Khalil said he ran out of the SUV to a nearby house and asked someone to call 911. As Khalil ran back to the two vehicles, he saw defendant holding a silver or chrome-colored handgun. Defendant was standing over Jackson, who was on the ground, and he shot Jackson.

Pathology report

The pathologist determined that Jackson suffered two gunshot wounds, and recovered two .32-caliber bullets from Jackson's body. One bullet entered Jackson's upper right arm, exited through his right shoulder, re-entered his body through the right side of his neck, and lodged in his temple and under the scalp. The other bullet entered Jackson's chest and traveled in a straight line, front to back, at ¶ 25-degree angle. It went through his heart and aorta and lodged in his spine. The gunshot to the chest inflicted fatal wounds, and Jackson would have died within seconds.

The pathologist believed the gunman could have been at least 18 inches away from Jackson when he fired. The pathologist could not determine which gunshot had been fired first. If the first shot had been into the chest, Jackson could have leaned forward in reaction to it, as if he had been punched in the chest. Jackson could have taken a few steps, tried to run, screamed or talked, and then collapsed; he would have died within 30 seconds. The gunshot which inflicted the shoulder/head/neck wounds could have been inflicted when Jackson was lying on the ground.

Jackson also suffered minor abrasions on his knees, torso, knuckles, and the back of his hands. These abrasions were consistent with someone hitting Jackson with an asp, or Jackson hitting someone, falling on the asphalt, and/or rolling around during an altercation. Jackson had an abrasion on his head, which could have been inflicted by an object hitting his head. Jackson was not under the influence of drugs or alcohol when he died.

The search for defendant

Defendant was the only suspect and fled the scene. On the morning of Saturday, March 10, 2007, defendant's white van was found in Stockton.

On or about March 11, 2007, defendant called Shdari Crane. Crane encouraged defendant to turn himself in. Defendant said he was going to do so.

On Monday, March 12, 2007, defendant turned himself in to the police at Highland Hospital in Oakland. The homicide weapon was never located.

Domestic violence expert

Detective Raquel Rios, a domestic violence investigator with the Merced Police Department, testified for the prosecution as an expert on domestic violence. [fn10]

FN10: In issue II, post, we will address defendant's contentions that Rios's testimony constituted inadmissible character and profile evidence.

Detective Rios testified about the cycle of violence in an intimate relationship, the various stages, and misconceptions about domestic violence situations.

Detective Rios testified that power and control play a role in an abusive relationship. The abusive partner may use both physical violence and emotional intimidation. An abused partner may not be able to leave the relationship because of financial dependence on the abuser, and the abused partner may also be afraid that the abuser's threats will become more volatile upon leaving.

Detective Rios testified while domestic violence is typically displayed from one partner toward the other partner, it can also extend to the other partner's child, parent, friend, or someone helping out that person. The abusive partner may direct his or her actions at other people to hurt the abused victim. "They ultimately could be put at risk because of the mere fact they've been helping them. And, I mean, there is a lot more followed up by that, of course, if there is other incidents that have clearly shown that's going to happen."

The prosecutor asked Detective Rios about the following hypothetical situation:"[T]here is a woman that was in an abusive relationship for approximately three years. She had tried to leave on a couple of occasions, and she attempted to leave, her abuser would threaten her. When she finally leaves - she was finally able to leave. She was assisted by a male friend of hers. Soon after that the male friend and her started dating and her abuser started threatening both of them. If I told you that the abuser was confronting the male friend would you have an opinion as to why that was occurring?"

Detective Rios replied that it depended on how many times the person confronted the victim and what actions occurred. The prosecutor asked Rios to assume the facts and circumstances from the police reports about Castle and Jackson. Rios testified that in her opinion, based on the history of domestic violence and subsequent threats, Jackson "was being stalked as much as Ms. Castle was" because of Jackson's relationship with Castle.

On cross-examination, defense counsel asked to assume further facts in the hypothetical, that the old and new boyfriends had known each other. Detective Rios conceded that the old boyfriend may have simply been angry at the new boyfriend because he ran off with his girlfriend, since the men had been friends.

DEFENSE EVIDENCE
Angela Romero[fn11] testified that on the afternoon of the homicide, she was at the home of Benito "Benny" Aguirre (Aguirre), located near the intersection of Cone Avenue and G Street.
FN11: Romero admitted she had misdemeanor convictions in 2005 and 2007 for petty theft and unlawfully taking or driving a vehicle.
Romero testified that she saw the van and the SUV parked on the side of the road. The two vehicles were lined up straight, one in front of the other. Romero insisted that the van had not cut off the SUV. The van's door was ajar. The bus was behind the SUV.
Romero saw two men fighting near the van's open door. The men were punching each other. She recognized Jackson, and he was on top of defendant. Jackson was punching and beating defendant, and Jackson was winning the fight. Defendant's back was against the van's open door, and he was trapped between the van and the open door while Jackson was beating him.
Romero testified that Aguirre crossed the street and approached the two men. Aguirre told them to "knock it off" and stop fighting. Jackson slowly got up and backed away from defendant.
Romero testified that something "silver-ish" fell out of defendant's pocket. Aguirre turned around and said, '"[H]e's got a gun, '" and ran away from the two men. Romero did not see any weapon.
Romero testified that she rushed back into Aguirre's house and did not see the actual shooting. She heard gunshots, turned around, and saw Jackson on the ground. Defendant jumped into the van and left.
On cross-examination, Romero conceded that she had previously told the police that she saw Jackson get shot while he was lying on the ground. Romero also conceded that she previously said that '"all of a sudden the guy was over [Jackson] and he just pow, pow, pow, pow ....'"[fn12]
FN 12: Romero admitted that her son was incarcerated in the main jail at the time of the trial. Romero testified that in the weeks prior to the start of the trial, she told a member of Jackson's family that she was afraid to testify because she felt it could endanger her son.
DEFENDANT'S TRIAL TESTIMONYDefendant testified at trial about his relationships with Castle and Jackson, and the homicide. His account was vastly different from the testimony of the prosecution witnesses.

Defendant denied that he hit or threatened Castle during their relationship and testified that Castle lied about all the domestic violence incidents. Defendant insisted that Castle would have filed some type of report if she had been beaten.

Defendant testified that he had relationships with other women while he was living with Castle and fathered a child with another woman. Defendant told Castle about these relationships, and they did not have any problems. Defendant further testified that Castle was also seeing other people.

Defendant testified that in November 2006, Jackson asked him to go to Oakland with him. When he returned to Merced, he discovered Castle had left him. However, Castle returned about one week later and gave him an ultimatum to stop seeing other women. Defendant said no and continued to see other women.

A few weeks later, Castle again left defendant. Defendant denied that Castle left him because he was an abusive bully. Defendant was not angry that she left. However, Castle used to contribute to the rent on defendant's house, and he was concerned about how he was going to pay by himself. Defendant concluded that he would have to "do a little more hustling" and sell "a lot of weed" to make rent. After Castle left him, defendant dated Shdari Crane and described their relationship as being "sex buddies."

The vandalism

In January 2007, defendant's landlord advised him that Castle's name had been removed from the rental agreement, he owed $3, 000 in back rent, and he had to move out by March. Defendant was surprised and called Castle about it, but she hung up. Defendant was upset about the rent issue.

Defendant learned that Castle was living with Jackson, but testified that he was not angry or jealous about it. However, defendant did not think it was "right" for Jackson and Castle to have a relationship because Jackson's son and Castle's daughter were cousins. [fn13]

FN13: Castle had a daughter; that child's father was the brother of Khalil's mother.

Defendant heard from mutual friends that Jackson blamed him for the vandalism of his residence. A friend dropped off defendant at the home of Jackson's mother, and defendant talked to Jackson about the vandalism. Defendant told him that he did not do it and asked Jackson to stop accusing him of it. Jackson told defendant that a red SUV was seen near the mobile home at the time of the vandalism. Defendant replied that he did not own a red truck. Jackson mentioned that defendant could have borrowed a mutual friend's red Cadillac Escalade SUV. Defendant admitted that he had borrowed the friend's red Escalade for 15 to 20 minutes on the day of the vandalism, but claimed he only used it to conduct a marijuana transaction in an alley.[fn14]

FN14: Defendant testified he was allowed to smoke marijuana because he had a "medical marijuana card" for a job-related back injury. Defendant admitted he also sold marijuana in Merced; that he carried a firearm when he sold drugs; that he was an ex-felon; that he knew the medical marijuana card did not allow him to sell drugs; and he knew he was committing a crime by selling drugs and carrying a weapon.

During that same visit, defendant also spoke to Castle about the overdue rent. Castle told defendant not to worry about it, that she would pay it, and to leave her alone. Defendant testified that he was only angry because Castle had failed to pay his landlord.

Defendant testified that everyone in Jackson's family blamed him for the vandalism and it hurt him "[d]eeply" because they had all been friends. However, defendant felt everything was "good" with Jackson after their conversation, and Jackson drove defendant back to his house.

The restraining order

Defendant testified that the police served him with a restraining order a few weeks later. Defendant was angry because none of the abuse or vandalism allegations were true.

Defendant testified that he saw Jackson at an intersection, stopped at the light, and asked him about the restraining order. Jackson told defendant to go about his business. Defendant admitted he briefly stepped out of his car and acknowledged that conduct violated the restraining order. Defendant drove away when the light turned green.

Defendant's gun and asp

Defendant testified that about a month before the homicide, he obtained a small, chrome-colored .32-caliber Derringer. He bought the gun and an asp from "a guy in an alley" to have protection, even though he thought things were "cool" with Jackson. He did so because a friend had told defendant that Jackson was asking around for a gun. Defendant began carrying both weapons with him, even though he knew that as a felon he could not possess a firearm.[fn15]

FN15: Defendant admitted that he had prior felony convictions in 1992 and 1993, including one for evading the police, and he knew that he could not possess a firearm.

Defendant testified that Joseph Coney lied when he testified that defendant said he was angry about Jackson and Castle, and that he wanted to kill Jackson. Defendant denied leaving any threatening messages for Castle after they separated.

The day of the homicide

Defendant testified that while Shdari Crane visited him several hours before the homicide, she lied when she claimed to have seen a gun because the weapon was hidden in a dresser drawer that day. However, defendant admitted that Crane had previously seen the gun and asp when he visited her house.

Defendant testified he was carrying his gun when he left his house on March 8, 2007. Later that day, defendant went to family court and filed his response to the restraining order. Defendant left the gun in the van when he went into the courthouse. When he returned to his van, he put his gun in his pocket. He went to a friend's house and they smoked marijuana. He later gave a ride to the friends' nieces and dropped them off at a house near Jackson's mother. Defendant denied that he went into that neighborhood to look for Jackson.[fn16]

FN16: Jacgueline Hill testified that defendant gave her and her sister a ride that afternoon. Louwanna Vaughn, their mother, testified that defendant dropped off Hill and her sister at her house around 4:00 p.m. Vaughn lived near Cone Avenue and G Street. Anywhere from 10 to 30 minutes later, Vaughn and Hill heard gunfire. Vaughn looked outside and just saw a crowd of people.

A police detective testified that he interviewed Vaughn on the day of the homicide because she lived in the neighborhood. Vaughn stated that she heard a couple of gunshots and then heard an engine "rev" and tires "burn rubber." However, Vaughn said she was home alone when she heard the gunshots; she never said her daughters were also home.

Defendant testified that he drove to a gas station and passed Jackson as he was driving in the opposite direction. Defendant denied that he was looking for Jackson or that he was angry about the restraining order. Defendant turned onto Cone Avenue, and Jackson turned behind him. Defendant stopped at the intersection to turn. Jackson was following him and did not pass on the side. Defendant admitted that he stopped in the middle of the street and "just bounced out" of his van to talk to Jackson about the restraining order. Defendant knew the restraining order was still in effect, it protected both Jackson and Khalil, and Khalil was in the car, but he still decided to violate the order and talk to Jackson.

Defendant disputed Khalil's account that defendant and Jackson spoke at the mini-mart, or that defendant gestured his hand like he was firing a gun. Defendant also denied that he said they should not go to the mini-mart because there were cameras there, or suggested they should go to Jackson's mother's house. When asked why he stopped in the middle of the intersection, defendant testified that he "felt like we could have that conversation right" there at the corner, instead of following Jackson to his mother's house.

The fight

Defendant denied that he cut off Jackson's SUV and disputed the testimony of the witnesses at the scene, that the van was parked at an angle in front of the SUV.

Defendant admitted that when he got out of the van to speak to Jackson, he had both the asp and gun in his pocket. Defendant insisted that he did not intend to fight with Jackson. Defendant testified that Khalil was wrong when he said that defendant was holding the asp when he got out of his van.

Defendant testified that Jackson got out of his vehicle, and they cursed and argued. Jackson punched him in the jaw. Defendant fell down and Jackson moved toward him. Defendant reached in his pocket for the asp and swung it at Jackson. Jackson blocked the asp with his arm, and it fell to the ground.

Defendant testified that Jackson grabbed his waist, tackled him, and pushed him back to the van. Defendant fell into the van's open doorway, and defendant thought he suffered a broken rib. Jackson threw a couple of punches. Defendant was able to push Jackson away. Defendant tried to get into his van, but Jackson grabbed him again. Defendant "bounced" against the van, and they fell into the street. Jackson punched defendant in the head while defendant was lying on his back. Defendant kicked Jackson, and he stumbled backwards.

The homicide

Defendant testified that he saw the asp lying on the street and started to crawl toward it. He also saw his gun on the ground. He picked up the gun because he did not want anyone else to have it. Defendant did not want to shoot Jackson. Jackson was about eight feet away from him. Defendant held the gun in his left hand, against his body.

Defendant testified that "[a]ll of a sudden some guy just come out of nowhere and try to take the gun from me and the gun went off." Defendant did not know this man, who was later identified as Aguirre. Defendant testified that Aguirre held defendant's hand and wrist, and the gun discharged. Jackson had been leaning slightly forward. Jackson "kind of turned, " and defendant thought he was hit in the shoulder. Defendant testified that he was still on the ground, and he continued to struggle with Aguirre for control of the gun. The gun "went off again" and fell to the ground. Jackson stumbled to his knees and then fell in the street. Aguirre ran away into the neighborhood.

Defendant testified that the shooting was an accident, and he did not shoot Jackson out of fear, self-defense, or heat of passion over his relationship with Castle. Defendant testified the gun went off because Aguirre wrestled with him for the gun.

Defendant testified that Munoz, the bus driver, was wrong when he said that Aguirre left the area prior to the gunshots being fired. Defendant also insisted the bus driver was wrong when he testified that defendant pointed the gun at Jackson's prone body and fired twice.

Defendant testified that after the two gunshots were fired, he picked up the gun, panicked, and left the scene. Defendant threw the gun on the freeway, drove to Stockton, met a friend there, and abandoned his van. Defendant got rid of the gun because "[t]here was no need" for it anymore. Defendant went to Oakland and turned himself in to the police.

Defendant insisted the shooting was an accident, and he never tried to kill Jackson. He ran away because he panicked. Defendant admitted that it took five days until he turned himself in, even though it was an accident. Defendant denied that he told anyone that he shot Jackson in self-defense.

Defendant testified that he did not bear any responsibility for Jackson's death."[THE PROSECUTOR]. ... So if you, Mr. White, the felon, hadn't shown up with a firearm that you were not supposed to own or possess, would [Jackson] be here today?

"A. Yes.

"Q. But you don't have any responsibility for his death?

"A. Yes, I have responsibility for his death.

"Q. All right. Which is it, sir, cuz [sic] you told us both.

"A. If [Aguirre] wouldn't have tried to take the gun [Jackson] would still be here today.

"Q. Ah. Not if you hadn't shown up with a firearm [Jackson] would still be here. If a good Samaritan hadn't come and tried to breakup a fight [Jackson] would be here today?

"A. Exactly."

REBUTTAL

The prosecutor recalled Shdari Crane as a rebuttal witness. Crane testified she maintained contact with defendant after he was arrested and talked to him in jail by telephone. She mentioned the homicide and defendant "just kept saying it was self-defense." Defendant never said that Jackson was accidentally shot.
The prosecutor also called Benny Aguirre as a rebuttal witness. Aguirre identified himself as the neighborhood bystander who tried to approach defendant and Jackson as they were fighting, as described by Khalil, Munoz (the bus driver), and even defendant. However, he categorically disputed defendant's claim that he wrestled with defendant for the gun, or that he was responsible for discharging the fatal gunshot into Jackson's body.
Aguirre testified that he lived with his girlfriend, Ashley Brown, on Cone Avenue. He heard the sounds of tires squealing and brakes slamming and looked outside. He saw two men getting out of their cars. Aguirre recognized Jackson, but he did not know defendant.
Aguirre testified that defendant got out of his car and was carrying an object that looked like a stick. Defendant swung the stick at Jackson. Jackson blocked the stick, and it flew away. Jackson started "smashing" at defendant and "socked" him. Jackson "whipped his ass."
Jackson took defendant down to the ground, and several items fell out of defendant's pockets. Aguirre was about 20 feet away. He saw a "small chrome thing" on the ground, and thought it could have been a knife, "a knuckle thing, " or some type of "fighting object."
Defendant and Jackson continued to fight on the street. Aguirre thought defendant was "going for" the small chrome thing. Aguirre was not going to break up the fight, but he wanted to kick the shiny object out of the way to prevent the situation from escalating.
Aguirre walked toward the two men and tried to kick the shiny object away. Defendant crawled toward it faster and reached the object before Aguirre. Defendant picked it up, and Aguirre realized it was a gun. Aguirre never reached for or touched the gun.
Aguirre testified that defendant pointed the gun at Aguirre. Aguirre became frightened and yelled, "Gun, gun." As defendant pointed the gun at Aguirre, Jackson was getting up from the ground. Jackson was about four to six feet away from defendant and backing away from him. Aguirre started to back away from defendant as he aimed the gun at him.
Aguirre testified that defendant turned the gun away from Aquirre, pointed the gun at Jackson, and fired it at Jackson. Aguirre thought defendant fired two or three shots at Jackson, and that the shots hit Jackson in the eye and chest. Aguirre testified that after defendant fired the shots, he jumped into the van and took off.
Aguirre testified that he never got closer than three feet from the gun. Aguirre never touched or fired the gun, and he never wrestled with defendant for control of the gun. Aguirre did not feel responsible for Jackson's death or fear that he would be charged in the case.

People v. White, 2013 Cal.App. Unpub. LEXIS 2670, 3-39 (Cal.App. 2013).

         III. Discussion

         A. Jurisdiction

         Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 fn.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. (Pet.) In addition, the conviction challenged arises out of the Merced County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2241(d); 2254(a). Accordingly, this Court has jurisdiction over the instant action.

         B. Legal Standard of Review

         On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). The instant petition was filed after the enactment of the AEDPA and is therefore governed by AEDPA provisions.

         Under AEDPA, a person in custody under a judgment of a state court may only be granted a writ of habeas corpus for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams, 529 U.S. at 375 n. 7. Federal habeas corpus relief is available for any claim decided on the merits in state court proceedings if the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28U.S.C. § 2254(d).

         1. Contrary to or an Unreasonable Application of Federal Law

         A state court decision is "contrary to" federal law if it "applies a rule that contradicts governing law set forth in [Supreme Court] cases" or "confronts a set of facts that [are] materially indistinguishable from [a Supreme Court case] but reaches a different result." Brown v. Pavton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-06). "AEDPA does not require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied . . . The statute recognizes . . . that even a general standard may be applied in an unreasonable manner." Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (citations and quotation marks omitted). The "clearly established Federal law" requirement "does not demand more than a 'principle' or 'general standard.'" Musladin v. Lamargue, 555 F.3d 830, 839 (2009). For a state decision to be an unreasonable application of clearly established federal law under § 2254(d)(1), the Supreme Court's prior decisions must provide a governing legal principle (or principles) to the issue before the state court. Lockver v. Andrade, 538 U.S. 63, 70-71 (2003). A state court decision will involve an "unreasonable application of" federal law only if it is "objectively unreasonable." Id., at 75-76 (quoting Williams, 529 U.S. at 409-10); Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). In Harrington v. Richter, the Court further stresses that "an unreasonable application of federal law is different from an incorrect application of federal law." 131 S.Ct. 770, 785 (2011) (citing Williams, 529 U.S. at 410) (emphasis in original). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Id., at 786 (citing Yarborough v. Alvarado, 541 U.S. 653, 664 (2004)). Further, "[t]he more general the rule, the more leeway courts have in reading outcomes in case-by-case determinations." ki; Renico v. Lett, 130 S.Ct. 1855, 1864 (2010). "It is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court." Knowles v. Mirzavance, 129 S.Ct. 1411, 1419 (2009) (quoted by Richter, 131 S.Ct. at 786).

         2. Review of State Decisions

         "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the claim rest on the same grounds." See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). This is referred to as the "look through" presumption, Id. at 804; Plascencia v. Alameida, 467 F.3d 1190, 1198 (9th Cir. 2006). Determining whether a state court's decision resulted from an unreasonable legal or factual conclusion, "does not require that there be an opinion from the state court explaining the state court's reasoning." Richter, 131 S.Ct. at 784-85. "Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." ]d, "This Court now ...


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