Dad could face 4th murder trial for shooting death of 12-year-old son (El Cerrito, California)

Dad BILLY RAY CASTLEBERRY could face a fourth murder trial for the 2004 shooting death of his 12-year-old son. Dad says it was an accident, but has provided contradictory testimony.

http://www.pe.com/localnews/inland/stories/PE_News_Local_W_castleberry04.4903ad0.html

El Cerrito father could face a fourth murder trial

10:00 PM PDT on Thursday, September 3, 2009

By RICHARD K. DE ATLEY
The Press-Enterprise

An appellate court reversed the second-degree murder conviction of an El Cerrito man accused in the 2004 killing of his 12-year-old son with a black-powder, muzzle-loading shotgun.

Billy Ray Castleberry, 48, already has been tried three times for the shooting of Bradley Castleberry in the mobile home they shared on Dawson Canyon Road near the El Sobrante Landfill.

In its decision issued Wednesday, the 4th District Court of Appeal, Division 2, sent the case back for a possible fourth trial.

Bradley died from one blast at short range from a Civil War replica double-barrel shotgun on Feb. 10, 2004. Castleberry had been sentenced to 40-years-to-life in prison.

Castleberry has been in custody since the slaying. He has said the shooting was an accident during a game and he didn't know the gun was loaded.

Prosecutors said he shot the boy out of anger.

"I predict that we can resolve the case and spare the taxpayers of Riverside County a fourth trial," Redlands attorney James R. Gass, who represented Castleberry at all three of his trials, said Thursday. "I'm totally convinced that he's totally innocent."

The justices did not support Castleberry's contention of innocence in their ruling. They concluded that evidence "unquestionably supports the inference that the defendant loaded the gun and therefore knew it was loaded when he pointed it at his son and pulled the trigger."

The state attorney general's office says it is reviewing the case for further action. That can include either a bid for a rehearing before the appellate court or a petition for review before the state Supreme Court.

The appellate court previously reversed the 2005 second-degree murder conviction in Castleberry's second trial. Justices said the trial judge erred by refusing to instruct jurors to consider an involuntary manslaughter conviction. Castleberry's first trial, also in 2005, ended with a deadlocked jury that voted 9-3 for conviction.

In the most recent trial, justices said the trial judge erred by allowing jurors to hear about violent confrontations between Castleberry and Bradley's mother that took place years before the shooting.

The opinion by Associate Justice Art W. McKinster called it "inflammatory, particularly in a case involving the death of a child."

The justices said the information may have kept jurors from finding a lesser charge of involuntary manslaughter against Castleberry.

"The incidents were very remote in time, old, and too tenuous, with not enough bearing on this shooting," appellate defense attorney Sally P. Brajevich said Thursday

Trial Judge James L. Quaschnick , a retired Fresno County judge and part of a judicial task force sent to Riverside County in 2007 to clear the backlog of the county's oldest cases, allowed jurors to hear about the incidents over defense attorney Gass' objections

Two of the incidents they heard about involved brandishing a firearm and a third left the woman injured with a hatchet cut to her arm that required stitches.

McKinster said Bradley's mother's testimony was "ambiguous" about Castleberry's real intent during the confrontations and did "not reasonably support the inference that defendant acted with the intent to kill Bradley," the justices ruled.

Quaschnick told the deliberating jurors they were not to consider the five violent confrontations as proof Castleberry was a person of bad character.

But "there is more than an abstract possibility that jurors who might otherwise have viewed the defendant's action as criminally negligent were swayed" into believing he acted with malice and was guilty of second-degree murder, McKinster wrote.

"We presume juries follow instructions," Deputy Attorney General Lynne G. McGinnis, who argued the case on appeal, said Thursday.

After the shooting, Castleberry had first told detectives that Bradley accidentally shot himself.

He eventually testified the boy was shot while the two played "army."

A reading in the third trial of testimony from Castleberry's deceased ex-cellmate Gary Orantes offered a motive in the killing.

In the previous trials, Orantes had testified that Castleberry confessed to him that he shot his son out of anger. Bradley had caught his father in a homosexual act and was asking difficult questions, according to Orantes' testimony.

In their opinion, the appellate justices referred to Orantes as "a jailhouse snitch" who offered the only testimony that supported the homosexuality claim.