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"What concerns me is that even after all this was supposedly gone away as I pointed out in the brief, as the closing arguments, the government argued that he’s held a belt, but there was no evidence ever presented of that," says Timblin.
Timblin suggests that the "probative value" outweighed the "prejudicial effect," indicating that Castro’s involvement in the February 2010 bar fight coupled with his MMA fighting background, had the effect of making him appearing guilty and elevating the crime to a higher degree."As I pointed out there’s a whole, I don’t know about how many people swung or took swings during this fight. I don’t know that that’s necessarily important to know because he’s had some training, When he throws a punch, he’s not any different than anyone else who throws a punch," laments Timblin.
However, Assistant Attorney General Marianne Woloschuk disagrees with Timblin’s argument.
"In this case he didn’t make a statement to police so the way to get at his subjective state of mind is to look at his particular knowledge and experience and in this case he’s a mixed martial artist and he knows how to fight," explains Woloschuk. "That was releveant to the recklessness element, so the MMA evidence is still relevant, and it’s not unfairly prejudicial, Yes, it’s prejudicial, but it’s not unfairly so."
Justice Robert Torres asked: "Doesn’t it seem, when you made the decision to drop those charges, unfairly prejudicial to then sort of bootstrap it, these mixed martial arts expertise, to sort of bootstrap it in an effort to prove the mens rea?"
"Well the people don’t see it as bootstrapping, your honor, that’s why they argued for admitting that evidence and the trial court agreed, we believe, that that was the correct decision," Woloschuk states.
Another appeal attorney Timblin made was that Castro’s MMA background was once against used against him when he was sentenced. Last August, Superior Court Judge Alberto Lamorena made it clear that he wanted to send a message that the court does not condone nor tolerate the kind of behavior someone of Castro’s caliber engaged in. But Woloschuk says Judge Lamorena actually demonstrated some leniency during Castro’s sentencing. 36"The court noted that the defendant is lucky he didn’t kill someone and when you look at the pronouncement of sentence, the court actually meant to give a slightly harsher sentence than was actually set forth in the judgment," she says. "When the trial court said 6 years serving 3, he actually got 5 years serving 3, so he actually got a more favorable outcome than he could’ve gotten."
Chief Justice Philip Carbullido, Justice Robert Torres and Justice Catherine Maraman took the matters under advisement.//
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