Dear Judge Castenellos (and JJC): Big Mistake, Big, HUGE


As a defense lawyer there are only three better words in the English language than “not guilty.”  They are, in order of frequency of actually hearing them: “dismissed” (sometimes, a lot more frequently on the day of trial in misdemeanor land); “granted” (assuming it is in response to your motion, in which case you can expect to hear this a few times a year) and “reversed” (almost never).  Today, straight outta the first district, reviewing an alameda county murder conviction, that almost never thing happened.

Long story short, the defendant got beat up by the victim’s friend, Ortiz.  The victim was with Ortiz when this happened. It was disputed whether the victim participated in beating up the defendant. The defendant went to his car. He got his gun.  The victim approached the defendant. The defendant said the victim reached for the gun. The defendant shot. Once. Victim died.  The coroner said the evidence was consistent with the victim reaching for the gun.


Note, the jury rejected self defense and imperfect self defense.  They convicted the defendant of second degree murder.

Pretty basic law is that if you kill someone because you were provoked by something that caused intense emotion that clouded your judgment (and a reasonable person would be similarly influenced by that provocation), you are guilty of manslaughter not murder.  (See CALCRIM No. 570).

It was agreed that right before the defendant shot the victim, the victim’s friend beat the shit out of the defendant while the victim was present.  Obviously, that the victim beat the shit out of the defendant right before shooting the victim, at the very least, raises the issue of whether the defendant was reasonably acting under influence of his emotion which clouded his judgment.  If he was, he shot the victim out of a heat of passion and is not guilty of murder, only manslaughter.  Pretty basic law. We’re not talking about the rule against perpetuity here.

Here though, Judge Castenellos (ALWAYS NAME NAMES But be sure you name the right name!!! thank you for the correction JJC reader) (I wish I could find her picture online to stamp REVERSED on, but couldn’t find one)  refused the defense attorney’s request for a provocation instruction, finding that the evidence did not support it. So the court of appeal sent Castenellos this message:

August 1, 2013

Via Published Opinion
Judge Castenellos
Alameda County Superior Court
At that Big Ole Courthouse by The Lake
Oakland, CA 94612


 Dear Judge Cartwright:

Very truly yours,

The Court of Appeal.

Of course, the attorney general said the evidence of provocation heat of passion came from self-serving testimony: that of Thomas. Sidenote, I think that it is super unfair to argue that a defendant’s testimony is “self-serving.”  No shit, of course anytime he testifies in his own defense it is self-serving.  But that doesn’t mean it is false. You can’t infer it is false from the mere fact that his own testimony helps him because almost any time he testifies it will be to help himself.  Thats like us arguing to the jury that the DA’s entire case was self serving. Anyway, the appellate court skipped that point,  and simply said it was clear that, even assuming it was self-serving, there was a fight just before the murder, the defendant got hurt, the defendant was clearly still upset about it, then the dude got shot.  That, on top of the so-called “self serving” testimony of the defendant about his state of mind, meant that “the obvious deficiency in the instructions given by the court is that they are bereft of any indication that the jury could consider Thomas’s emotional excitement as a factor that could reduce his criminal culpability.” So. Fucking. True.

A word about the procedural history and shout out to Thomas’ public defender.  Rarely is the procedural history interesting.  In this case, it is.  Initially, the appellate court considered this argument, found it was error to not instruct the jury on this issue, but held the error was harmless.  They applied the state law test (Watson) for prejudicial error which asks: “whether it is reasonably probable Thomas would have received a more favorable verdict if the jury was properly instructed”.

The case went up to the Supremes who were like Dear Appellate Court (I’ll spare you the pretty woman youtube) you applied the wrong standard.  The rule is that, according to the federal constitution, if a defendant raises the issue of provocation as a mitigation to murder in a state where provocation mitigates murder to manslaughter, he is constitutionally entitled to be found not guilty unless the prosecutor proves beyond a reasonable doubt that the provocation doctrine was inapplicable.  Why does that matter? Because things. just. got. federalized.

When there is a violation of the federal constitution, the error test changes. It is much harder, at least in theory, for the government or the court to contend that the error was harmless. The test for a federal constitutional error is  Chapman (Chapman v. California (1967) 386 U.S. 18, 24).  That test is not whether there a bat’s chance out of hell  (another expression that I regularly use that I do not think is actually an expression) that the verdict would have been the same.  The test is: “whether it appears beyond a reasonable doubt that the asserted error did not contribute to the verdict.”

Interestingly, the appellate court said look, we can’t say how this would have affected the verdict.  The evidence clearly shows he, at the very least, is guilty of manslaughter, so the conviction for second degree murder is REVERSED. Dear DA, retry him ASAP or manslaughter stands.   Love, the appellate court. (Couldn’t find a youtube for this; dear readers, make one just in case this comes up again).

The procedural history is worth mentioning for two reasons.  First, as a very new appellate attorney who doesn’t know that much about appellate law but trying to learn, I sort of felt like this whole “time to see if there was prejudice” is bullshit.  I felt like courts of appeal will decide what they want to do and then say the error is prejudicial or not.  I am so happy that my preconceived notion has been challenged at least in this case.

Second, major props and big time shout out to the federal-constitution-preserving-PUBLIC DEFENDER (public defenders: infinity Yglesias: 0) Jim Cramer.  Disclosure: I do know Cramer.  Nothing makes me more happy than seeing an unlawfully acquired conviction reversed, but what comes close is when the reason for the reversal is because of an amazing job done by an amazing attorney with a great heart.  In the short time I’ve been an attorney, I’ve seen this happen 2 times already on 2 murder convictions.  Well done Cramer.  Well done Jim “Valiant Defense Counsel” Mann. I’d post a photo of Cramer with a cape and the words “HERO” across his chest, but I don’t have his picture either!

Well done Alameda County PDs. I believe, beyond a reasonable doubt, that the public defender’s office there have only more great things to come.


CORRECTION:  sometimes we (let’s be honest, I) make mistakes, in some ways like judge Castenellos made a mistake in this case. No, I did not fail to instruct a jury properly in a murder case.  I erroneously named judge Cartwright in the initial post of this article. Like my botched OJ Simpson prediction, I was DEAD wrong. A JJC reader nicely corrected me without saying “Dear JJC big mistake. big. huge.” and linking a pretty woman clip.  Thank you for your kindness. If only I were this forgiving of judges who, just like me, get it wrong some times.  Luckily for the world, no one goes to prison for 40 years when I fuck up on my blog. I think. In any event I apologize and promise to strive harder to get it right next time. Thank you for your patience!!

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