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CASTILLO v. ADAMS

United States District Court, N.D. California, San Jose Division


September 26, 2005.

CESAR CASTILLO, Petitioner,
v.
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. ยง 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.

20050926

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