Antonio Castellano v. LELAND MCEWAN, Warden

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Edward R. Korman, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONIO CASTELLANO,
Petitioner-Appellant,
v.
LELAND MCEWAN, Warden,
Respondent-Appellee.
No. 10-55681
D.C. No. 8:09-cv-871-SVW-E
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted January 9, 2013
Pasadena, California
Before: GOODWIN and W. FLETCHER, Circuit Judges, and KORMAN,
Senior District Judge. **
Antonio Castellano, who was convicted in California of domestic battery and
related offenses, appeals from the denial of his petition for a writ of habeas corpus.
FILED
FEB 11 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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The appeal focuses on the admissibility of testimony given at a preliminary hearing
by the victim, Irene Sanchez Castellano (“Sanchez”), and on statements she made to
police officers.
Castellano argues that as a result of the enactment of Proposition 115 in 1990,
preliminary hearings in California do not provide an adequate opportunity for full and
fair cross-examination because the “purpose of a preliminary hearing [is] to establish
whether there exists probable cause to believe that the defendant has committed a
felony” and not to undertake discovery. Cal. Penal Code § 866(b). Consequently, he
argues the testimony at such hearings is never admissible at trial. This argument
ignores the fact that the purpose of a preliminary hearing was always to establish the
existence of probable cause and involved a “less searching exploration into the merits
of the case than a trial.” California v. Green, 399 U.S. 149, 166 (1970). Nevertheless,
the Supreme Court held that, unless defense counsel “appear[ed] to have been
significantly limited in any way in the scope or nature of his cross-examination of the
witness . . . at the preliminary hearing,” such testimony was admissible at trial. Id.
This holding was not dependent on whether the witness was available to testify at trial.
See id.
Picking up on the caveat in Green, Castellano also argues that the scope of his
cross-examination at the preliminary hearing was significantly limited because the

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preliminary hearing judge sustained two objections to questions posed to Sanchez by
the defense about: (1) an uncharged incident which took place in 2003 and (2)
Sanchez’s state of mind during one of the charged incidents. These questions sought
to elicit evidence of minimal relevance. Indeed, had Sanchez testified at trial and had
the same objections been sustained, we would have had little trouble concluding that
the trial judge did not abuse his discretion and that, even if he did, any error was
harmless.
Castellano introduced evidence at trial relating to the prior uncharged incident
and Sanchez testified on direct examination at the preliminary hearing regarding her
state of mind during the charged incident at issue. Moreover, Castellano also
introduced letters written by Sanchez which included admissions that she had lied to
the police and attempted to take responsibility for all that had gone wrong between
them, and a voicemail message from Sanchez threatening to falsely accuse him of
domestic abuse if he did not financially support her. Except for the letter explaining
her refusal to testify at trial, which post-dated the preliminary hearing, the other
impeachment evidence was in Castellano’s possession and not obtained through any
discovery. Significantly, Castellano’s brief acknowledges that because of this
evidence “Sanchez’[s] preliminary hearing testimony largely exonerated Castellano;
[and demonstrated] that Sanchez was the aggressor and that she lied to manipulate and

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control Castellano.”
Castellano also argues that the trial judge’s decision to admit the testimony of
police officers relaying statements made to them by Sanchez violated his
Confrontation Clause rights. Sanchez’s hearsay statements to the officers were
admitted to impeach her preliminary hearing testimony. Castellano had an
opportunity to cross-examine Sanchez about those statements at the preliminary
hearing. Indeed, with one exception, which the jury’s verdict suggests was harmless,
he also had the opportunity to examine the police officers at both the preliminary
hearing and at trial. Thus, Castellano’s only objection to the admissibility of their
testimony fails because it rests on the same ground as his objection to the admissibility
of Sanchez’s testimony.
AFFIRMED.

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