Castillo v. Clark

• Citation: 610 F.Supp.2d 1084
• Decision Date: 27 March 2009
• Docket Number: No. CV 06-4111-AHM (RNB).,CV 06-4111-AHM (RNB).
• Court: U.S. District Court — Central District of California
• Parties: Richard CASTILLO, Petitioner, v. Ken CLARK, Warden,<SMALL><SUP>1</SUP></SMALL> Respondent.

610 F.Supp.2d 1084

Richard CASTILLO, Petitioner, v. Ken CLARK, Warden,¹ Respondent.

No. CV 06-4111-AHM (RNB).

United States District Court, C.D. California.

March 27, 2009.

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Richard Castillo, Tehachapi, CA, pro se.

Daniel Chi-Sum Chang, Attorney Generals Office, Los Angeles, CA, for Respondent.

ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDTIONS OF UNITED STATES MAGISTRATE JUDGE

A. HOWARD MATZ, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all the records and files herein, including the Report and Recommendation of the United States Magistrate Judge. Objections to the Report and Recommendation have been filed herein. Having made a de novo determination of those portions of the Report and Recommendation to which objections have been made, the Court concurs with and adopts the findings, conclusions and recommendations of the Magistrate Judge.

IT THEREFORE IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ROBERT N. BLOCK, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable A. Howard Matz, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.

PROCEEDINGS

On June 22, 2006, petitioner lodged for filing a Petition for Writ of Habeas Corpus by a Person in State Custody ("Pet.") herein. The Petition alleged nine separate grounds for relief.

Following three extensions of time, respondent filed an Answer to Petition ("Ans."), including a supporting Memorandum of Points and Authorities ("Ans.Mem."), on December 6, 2006. Concurrently, respondent lodged copies of the relevant state court records, including the Probation Report (which was lodged under seal). Respondent contended therein inter alia that three of petitioner's grounds for relief were unexhausted (i.e., Grounds One, Seven, and Eight). (See Ans. at 2; Ans. Mem. at 24-30).

Following an extension of time, petitioner filed a Traverse ("Trav.") on January 26, 2007. Then, on November 27, 2007, petitioner filed a document captioned "Motion to Leave to Amend the Traverse to Respondent's Return to First Petition for Writ of Habeas Corpus." Specifically, petitioner sought to augment his arguments with respect to Ground One of the Petition. On April 16, 2008, the then-assigned Magistrate Judge granted petitioner's Motion, advised that he would construe the Motion as a "Supplemental Traverse" ("Supp.Trav."), and ordered respondent to file a response thereto. Following two extensions of time, respondent filed a Response to Supplemental Traverse on July 2, 2008. That same date, the case was transferred from the calendar of Magistrate Judge Rayburn to the calendar of Magistrate Judge Block.

Thus, this matter now is ready for decision. For the reasons discussed hereafter, the Court recommends that the Petition be denied.

PROCEDURAL HISTORY

On January 6, 2004, a Los Angeles County Superior Court jury found petitioner guilty of first degree murder (with a special circumstance finding that he personally and intentionally discharged a firearm proximately causing death), attempted murder, shooting at an occupied motor vehicle, and being a convicted felon in possession of a firearm. As to the first three offenses, the jury also found true sentence enhancement allegations based on the discharge and use of a firearm. The jury was unable to reach a unanimous verdict with respect to other sentence enhancement allegations, and the trial court declared a mistrial as to those. (See Clerk's Transcript on Appeal ["CT"] 220-22; 5 Reporter's Transcript on Appeal ["RT"] 3301-11).

At the ensuing sentencing hearing held on March 16, 2004, after hearing from friends and family members of the murder victim and also affording both counsel the opportunity to be heard, the trial court imposed a term of 25 years to life on count one (first degree murder) plus a consecutive term of 25 years to life for the Cal.Penal Code § 12022.53(d) sentence enhancement (personal and intentional discharge of a firearm proximately causing death). The court stayed a 20-year sentence enhancement under § 12022.53(c) (personal and intentional discharge of a firearm) and a 10-year enhancement under § 12022.53(b) (personal use of a firearm). With respect to count two (attempted murder), the court imposed an upper term of nine years. The court additionally imposed a consecutive 20-year sentence pursuant to § 12022.53(c) and stayed a 10-year sentence under § 12022.53(b). The court specified that the sentences in counts one and two were to run consecutively. With respect to count three (shooting at an occupied motor vehicle), the court imposed the mid-term of five years but stayed the sentence pursuant to Cal.Penal Code § 654. With respect to count four (felon in possession of a firearm), the court imposed one-third the mid-term sentence of two years consecutive to count two. The total aggregate sentence was 79 years and 8 months to life. (See CT 240-46; 5 RT 3607-31).

Petitioner appealed his conviction and sentence, raising claims generally corresponding to the claims being alleged in the Petition herein. (See Respondent's Notice of Lodging, ["Lodged Doc."] # 3). In an unpublished decision issued on November 15, 2005, the California Court of Appeal rejected petitioner's claims and affirmed the judgment in its entirety. (See Lodged Doc. # 6). Petitioner's appellate counsel proceeded to file a "Petition for Review to Exhaust State Remedies" pursuant to former Rule 33.3 of the California Rules of Court. (See Lodged Doc. # 7). On January 25, 2006, the California Supreme Court summarily denied the Petition for Review without citation of authority. (See Lodged Doc. # 8).

Petitioner did not seek collateral relief in state court. (See Pet. at 4).

SUMMARY OF THE EVIDENCE PRESENTED AT TRIAL

Because Ground Five of the Petition could be construed as encompassing an insufficiency of the evidence claim, the Court has independently reviewed the state court record. See Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir.1997). The following is a summary of the evidence presented at trial.

On July 19, 2002, friends and roommates Giovanni Carboni and Fernando Lozano, Jr., drove to Olvera Street in downtown Los Angeles to have brunch. They arrived around 1:00 that afternoon and stayed until 2:30 or 3:00 p.m., at which time they headed home. Carboni had one beer and Lozano had three margaritas. Carboni was driving his tan 1992 Ford Explorer. He headed northeast from downtown on Broadway, electing not to take the freeway to avoid traffic. He turned north on Lincoln Park Avenue and then turned on North Flora Avenue. He found himself in an unfamiliar neighborhood and mistakenly turned south, instead of north, on Sierra Street. (See 2 RT 910-18, 923, 938-39, 974).

Traffic was moving slowly on the narrow street, and Carboni saw petitioner (whom he identified in court) driving northbound on Sierra Street. No one was in the car with petitioner. (See 2 RT 918-21, 923, 990, 1044-45). As the two cars passed each other, petitioner yelled "What up [sic], fool?" to Carboni. Carboni characterized petitioner's attitude as if "he wanted to confront us or start something with us, start problems." Carboni was uncomfortable and said nothing. Lozano, however, yelled the same question back. (See 2 RT 924-25). Carboni "got nervous" and decided to make a U-turn. He had seen petitioner turn left onto Flora Avenue and felt that petitioner was trying to catch up to them. He was afraid that petitioner "would do something." (See 2 RT 925-26).

Looking in the rear-view mirror, Carboni saw petitioner behind him, also traveling northbound on Sierra, "speeding" towards his car. Carboni kept driving, and petitioner pulled up along his left side. There was little traffic. Carboni slowed down because he did not want petitioner to chase them. He did not recall coming to a stop and did not believe petitioner's car came to a stop either. He thought petitioner was a "gangster" based on his attire and shaved head. (See 2 RT 926-29, 994-95). Neither Carboni nor Lozano had any gang affiliations, nor any gang tattoos. (See 2 RT 925; 4 RT 1917). Petitioner then yelled "Where are you from?" The two cars were only a couple of feet apart, and the windows on each were rolled down. Carboni replied that he wasn't from any gang, and he wasn't from around the area. Petitioner said, "Then what the fuck are you looking at?" Carboni replied, "I am not even looking at you." Then Lozano yelled, "At your ugly fucking face." In response, petitioner immediately pulled a gun from his lap and shot two or three times at Carboni's car. Carboni described petitioner's gun as a small "black revolver." (See 2 RT 929-31, 940, 994, 999, 1001).

Carboni testified that he "saw a gun come out." Petitioner extended his arm and pointed the gun directly at Carboni. (See 2 RT 932, 1000). Carboni raised his arms and leaned back into his seat as far as he could. As the shots were being fired, he saw glass shatter to his left. None of the windows on his car were broken during the incident. His car was struck in the driver's door, but Carboni was not hit. He did receive "marks on his left arm" that he described as looking like "specks of blood under the skin." (See 2 RT 933-36, 949, 1002). The gunshot residue testing of his hands was inconclusive. (See 3 RT 1525-26).

Petitioner sped off, and Carboni followed in order to get his license plate number. Carboni thought petitioner's car was an old grayish Honda. Carboni followed petitioner for approximately a block until he could read the number, then he slowed down; petitioner continued driving rapidly northbound on Sierra. Carboni looked over at Lozano and discovered that he...