United States District Court, E.D. California
JAMES E. WHITE, Petitioner,
NEIL MCDOWELL, Warden, Respondent.
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR
WRIT OF HABEAS CORPUS
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE
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.
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.)
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.
did not file any collateral challenges to his conviction.
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.)
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.
Statement of the Facts
In 2002, Mauree Lashe Castle (Castle) met defendant, and they
started dating. In 2003, they moved into a house together in
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
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
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
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
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
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
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
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 call; vandalism at Jackson's mobile
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
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
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: 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
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
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.
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
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
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
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.
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.
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
The paramedics arrived and attempted to treat Jackson.
Jackson was transported to the hospital where he was
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
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.
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
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.
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
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
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
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
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
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
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
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: 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
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
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
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
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
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.
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
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
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.
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
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?
"Q. But you don't have any responsibility for his
"A. Yes, I have responsibility for his death.
"Q. All right. Which is it, sir, cuz [sic] you told us
"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?
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
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).
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.
Legal Standard of Review
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
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;
(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).
Contrary to or an Unreasonable Application of Federal
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).
Review of State Decisions
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 ...