United States District Court, E.D. California
FRANK R. CASTILLO, Petitioner,
FINDINGS AND RECOMMENDATION THAT COURT DENY FIRST
AMENDED PETITION FOR WRIT OF HABEAS CORPUS ECF No. 15
OBJECTIONS DUE IN 14 DAYS
Frank R. Castillo, a state prisoner without counsel, seeks a
writ of habeas corpus under 28 U.S.C. § 2254. Petitioner
argues that a writ should issue because of defects in his
criminal trial. Specifically, he maintains that (1) his trial
counsel was ineffective in failing to object to the
introduction of evidence of a prior act, (2) the state trial
court violated his constitutional rights in admitting the
prior act evidence, and (3) the prosecutor engaged in
misconduct in introducing the same evidence. I recommend that
the court deny the petition and decline to issue a
certificate of appealability.
killed a man, who was passed out drunk on a sleeping bag, by
kicking and stomping on his head. The alleged motive for the
attack was petitioner's involvement in a love triangle
with the victim and the victim's girlfriend. All three
members of the love triangle, as well as some witnesses who
testified at trial, were part of a larger group of homeless
people living in Fresno. Petitioner admitted responsibility
for the victim's death but argued for a verdict of
manslaughter. A jury found him guilty of second-degree
murder, and petitioner was sentenced to a total term of 35
years to life.
forth below the facts of the underlying offenses, as stated
by the Court of Appeal. A presumption of correctness applies
to these facts. See 28 U.S.C. § 2254(e)(1);
Crittenden v. Chappell, 804 F.3d 998, 1010-11 (9th
On April 7, 2012, police responded to a report of domestic
violence near East Tulare Avenue and North 2nd Street, an
area where homeless individuals frequently congregated and
slept. Upon arrival, the investigating officer made contact
with Salvio and Vicky Guerrero. Both of them were visibly
drunk. Salvio complained that his girlfriend, Ms. Guerrero,
had punched him in the mouth and taken his cell phone. Ms.
Guerrero was arrested for public intoxication and disturbing
Castillo allegedly learned of Ms. Guerrero's arrest the
following evening while drinking beer with James Paxton,
another homeless person who was mutually acquainted with
Castillo and Salvio. Although Mr. Paxton denied informing
Castillo of Ms. Guerrero's arrest, his trial testimony
confirmed that he and Castillo had a discussion about Salvio
immediately prior to the subject incident. The conversation
took place outside of a convenience store on the northeast
corner of East Tulare Avenue and North 1st Street, i.e., one
block over from where Salvio customarily slept at night.
Castillo told Mr. Paxton that he loved Ms. Guerrero, that the
two of them had been dating off and on, and that he was
unhappy about her romantic relationship with Salvio. He also
expressed anger over Salvio's involvement in Ms.
Guerrero's recent arrest. The conversation ended with
Castillo walking off in the direction of East Tulare Avenue
and North 2nd Street after stating his intention to confront
Salvio about these grievances.
Yang Moua and Jeffrey Branning witnessed Castillo's
subsequent encounter with Salvio. With the assistance of a
Hmong language interpreter, Mr. Moua testified that he had
been sleeping next to Salvio when Castillo appeared and began
kicking Salvio in the head. Castillo cursed at Salvio
throughout the attack, but Salvio did not respond or attempt
to defend himself.
Jeffrey Branning provided a more detailed account of the
incident. Mr. Branning had been sleeping in the same
encampment as Salvio and Mr. Moua when he awoke to the sound
of yelling. He saw Salvio lying down and Castillo standing
over him, cursing and demanding that Salvio get up. Salvio
did not respond, and Mr. Branning initially suspected that he
was pretending to sleep to avoid the confrontation. Castillo
lifted up his foot and brought it crashing down on
Salvio's head, “like you would to smash a pumpkin
or stomp a divot into the ground if you play golf . . . . And
then he started kicking him . . . kicking his head like a
soccer ball.” Mr. Branning estimated that Castillo
stomped on Salvio's head approximately five to six times
and kicked him eight or nine times. Castillo delivered the
blows with “unbridled” force, “like
somebody trying to kick a field goal [with a football], only
he was using [Salvio's] head.”
Although Mr. Branning considered Salvio to be one of his best
friends, he did not intervene and quickly departed from the
area with Mr. Moua. He expressed regret over this decision at
trial, explaining that he was afraid of Castillo because
Castillo had punched him in the face on a prior occasion.
Castillo's claim on appeal is based on the admission of
Mr. Branning's statements about the previous assault.
After leaving the scene, the two eyewitnesses met up with
James Paxton at a nearby establishment. Castillo joined them
approximately five to ten minutes later and bought drinks for
the entire group. Shortly thereafter, Mr. Paxton went to
check on Salvio and found him lying motionless, face down on
the ground. Concerned that Salvio was not breathing, he went
back across the street and told Mr. Branning to call 911.
Paramedics soon arrived and transported Salvio to a local
hospital. He was pronounced dead in the early morning hours
of April 9, 2012.
Vicky Guerrero testified that Castillo later told her about
what he had done to Salvio. She remembered him complaining of
“throbbing” foot pain. According to Ms.
Guerrero's testimony, Castillo was not immediately aware
that he had killed the victim. Castillo knew that he
“hurt him really bad, ” but assumed Salvio had at
worst suffered a concussion or fallen into a coma.
Police officers located and arrested Castillo on April 12,
2012. He had by then obtained a new set of clothing, but
neglected to discard his bloody footwear. Forensic analysis
showed that the shoes Castillo was wearing at the time of his
arrest contained traces of Salvio's DNA.
Dr. Venu Gopal, the pathologist who performed an autopsy on
the victim's body, testified to the nature of his
injuries and the cause of death. Toxicology results showed
that Salvio had a blood alcohol level of .37 [grams per
deciliter]. Despite the dangerously high level of alcohol in
his system, Dr. Gopal determined the cause of death to be
“head injury due to multiple blunt impacts.”
Salvio sustained a depressed fracture above the right
eyebrow. Such an injury is caused when a bone is broken and
pushed inward, causing a depression. In other words, the
right frontal bone of the victim's skull was pushed in
toward his brain, which caused an indentation measuring 1.5 x
1 inches. Dr. Gopal testified that this would have required a
“severe degree of force.” In addition to the
depressed fracture, the pathologist documented 22 bruises,
scrapes, and lacerations on the victim's face. There were
no defensive wounds.
The defense strategy was to acknowledge culpability for the
homicide and argue for a verdict of something less than first
degree murder. In his opening statement, defense counsel told
the jury that the evidence would show Castillo was
responsible for Salvio's death, but never formed the
intent to kill. As trial progressed, it became apparent
counsel was hoping to establish the affirmative defense of
voluntary intoxication. There was no evidence of how much
alcohol Castillo had consumed at the time of the killing, but
the defense relied on the impressions of a lay witness who
said she believed he was drunk on the night in question.
. . . .
Castillo's trial counsel reiterated the defense theory
during closing argument: “I'm going to ask you,
frankly, ladies and gentlemen, to find Frank Castillo guilty.
. . . I'm going to ask you to find him guilty of
involuntary manslaughter.” Counsel went on to argue
that Castillo neither intended to kill the victim nor
realized his actions could be lethal, and thus did not act
with a conscious disregard for life.
People v. Castillo, No. F068969, 2016 WL 4482962, at
*1-3 (Cal.Ct.App. Aug. 25, 2016).