United States District Court, N.D. California, San Jose Division
September 26, 2005.
CESAR CASTILLO, Petitioner,
DEREL ADAMS, Warden, Respondent.
The opinion of the court was delivered by: RONALD WHYTE, District Judge
ORDER DENYING MOTION TO ALTER JUDGMENT
On January 25, 2005, the court denied petitioner Cesar Castillo
habeas relief. Petitioner now asks the court to alter or amend
its judgment.*fn1 Petitioner argues that the court misstated
the facts and misapplied the law.
Petitioner first argues that the court failed to cite
crucialtestimony by the victims inits statement offacts. This
failure, according to petitioner, led the court to incorrectly
analyze petitioner's claim that the trialcourt had a duty to sua
sponte instruct the jury on the defense of accident. Had the
court considered this testimony, according to petitioner, itwould
have realized that petitioner's two defenses, first, that he did
not stab the victim and, second, that he did not intend to stab
the victim were not inconsistent. The argument that the court's
statement of the facts impacted its judgment is without merit.
Although the court's statement of facts did not cite the testimony to the detail desired by petitioner, the facts
recited by the court acknowledged that one of the eyewitnesses,
Eric D., "admitted that the events happened so quickly he could
not be certain that the object petitioner held was a knife and
not keys or some other article." 1/25/05 Order at 3. It also
explicitly recognized petitioner's argument that the victim,
Anthony, may have been wounded, not as a result of having been
intentionally stabbed by petitioner, but from having fallen down
the stairs withpetitioner and having been accidentally hurt by
the bushes or another item during his fall. Id. at 11.
The court's determination was based upon its recognitionof the
evidence presented at trial, including the evidence petitioner
contends that the court overlooked. In light of 28 U.S.C. § 2254,
this court assessed the state courts' legaldeterminations about
whether substantialevidence supported a defense of accident such
that the trial court was obligated to sua sponte instruct the
jury on the defense of accident. This court's conclusion (namely
that the California court's determination that substantial
evidence did not support this defense was not contrary to clearly
established federal law) was not in error. Thus, the court
declines to alter its judgment on this matter.
Second, petitioner argues that the court erred infinding
petitioner's claim that the state trialcourt failed to instruct
as to the intent element of assault to be procedurally defaulted.
This court determined that the state court's decision rested
on state procedural grounds: namely that petitioner had failed to
object to or otherwise request clarification the instruction
before the trial court. This court also determined that it did
not have jurisdiction to review a state court's misapplicationof
a state procedural rule. Poland v. Stewart, 169 F.3d 573, 484
(9th Cir. 1999). Petitioner now argues that the state court did
not misapply a state procedural rule, rather that the rule
applied by the state courts did not exist. At base, he
reasserts his argument that the state court improperly applied a
procedural requirement that a defendant must object to a jury
instruction that is otherwise legally correct before an appellate
court may consider the argument, unless the substantial rights of
the parties were affected thereby. He asserts that the state
appellate court erred in applying this procedural requirement to
his case because the case the state court cited as setting
forththe proceduralrule deals only with failures to instruct on
evidentiary matters. Petitioner's arguments in the present
motion break no new ground. The court has already considered
them. 1/25/05 Order at 7-8. It declines to alter or amend its
January 25, 2005 Order. Finally, petitioner renews his argument that CALJIC 2.90 read
at his trialdefined a lower standardthan that required by the Due
Process Clause. He clarifies that his contention was not that the
phases "to a moral certainty" or "depending on moral evidence"
were necessary to convey the standard of proof beyond a
reasonable doubt. This was not the court's interpretation of
petitioner's argument. The court's decision that the state
court's determination on this matter does not warrant habeas
relief stands: CALJIC 2.90 as read at petitioner's trialdid not
violate his right to due process. This instruction has been
upheld by the Ninth Circuit, which has read Victor v. Nebraska,
511 U.S. 1, 5 (1994), upon which petitioner continues to base his
argument, as essentially sanctioning the definition of reasonable
doubt adopted in CALJIC No. 2.90 in its present form. See
Drayden v. White, 232 F.3d 704, 715 (9th Cir. 2000), Lisenbee
v. Henry, 166 F.3d 997, 1000 (9th Cir. 1999).
For the foregoing reasons, petitioner's motion to amend the
order and alter the judgment therein is denied.
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