Fernando Belmontes, Pr v. Jeanne S. Woodford, Warden, for the California State Prison at San Quentin

with whom Circuit Judges O’SCANNLAIN, TROTT, KLEINFELD, GOULD, TALLMAN, BYBEE and BEA join, dissenting from denial of rehearing en banc:

I respectfully dissent from the order denying rehearing en banc.

In 1982, a jury found Fernando Bel-montes guilty of first-degree murder for beating a nineteen-year-old woman to death with a dumbbell bar and sentenced him to death. 1 On automatic appeal to the California Supreme Court, Belmontes argued, inter alia, that the trial court misin-structed the jury on the proper role of sympathy and general character and background evidence during the trial’s penalty phase. See People v. Belmontes (“Belmontes I” ), 45 Cal.3d 744, 799 , 248 Cal. Rptr. 126 , 755 P.2d 310 (1988), cert. denied, 488 U.S. 1034 , 109 S.Ct. 848 , 102 L.Ed.2d 980 (1989). The supreme court, properly viewing the jury instructions and arguments as a whole, concluded that “no legitimate basis” existed for believing that the trial court had misled the jury. Id. at 802, 248 Cal.Rptr. 126 , 755 P.2d 310 .

Now, twenty-one years after Belmontes’ trial and fifteen years after the California Supreme Court’s ruling, the panel’s decision reverses Belmontes’ sentence. In doing so, the…

dissenting from denial of rehearing en banc:

I join Judge Callahan in her dissent from the denial of rehearing en banc. Additionally, I also respectfully dissent from the order denying rehearing en banc with the following comments:

First, the majority errs in finding that the trial court did not properly characterize Belmontes’ evidence as “mitigating.”

335 F.3d at 1040.

By this language, the majority determines that Belmontes’ testimony and that of his witnesses constituted “mitigating evidence.” A trial court cannot so instruct a jury.

The proposed instruction would have constituted a comment by the trial judge that he considered Belmontes’ proffered evidence to be mitigating evidence. Judges are not supposed to make such comments about the evidence. The jury is the sole and exclusive judge of the credibility and weight of the evidence. 1 To instruct the jury as the majority says should have been done would have constituted a charge that Belmontes’ proffered evidence constituted mitigating evidence. Only where reasonable persons must accept the credibility of the evidence and its weight would such a characterization be proper. Such an instruction would amount to a directed…

ORDER

The panel has voted to deny the petition for panel rehearing and petition for rehearing en banc. Judge O’Scannlain would grant the petition for panel rehearing and the petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en *1080 banc. The matter failed to receive a majority of the votes of the nonreeused active judges in favor of en banc reconsideration. FED. R. APP. P. 35.

The petition for rehearing en banc is denied.

359 F.3d 1079 Fernando BELMONTES, pr, Petitioner-Appellant, v. Jeanne S. WOODFORD, Warden, for the California State Prison at San Quentin, Respondent-Appellee. No. 01-99018. United States Court of Appeals, Ninth Circuit. Filed February 5, 2004. Christopher H. Wing, Esq., Sacramento, CA, Eric S. Multhaup, Esq., Mill Valley, CA, for Petitioner-Appellant. Mark Anthony Johnson, Esq., Sacramento, CA, for Respondent-Appellee. Before: Stephen REINHARDT, Diarmuid F. O'SCANNLAIN, and Richard A. PAEZ, Circuit Judges. 1 Order; Dissent by Judge Callahan; Dissent by Judge Bea. ORDER 2 The panel has voted to deny the petition for panel rehearing and petition for rehearing en banc. Judge O'Scannlain would grant the petition for panel rehearing and the petition for rehearing en banc. 3 The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration. FED. R. APP. P. 35. 4 The petition for rehearing en banc is denied. 5 CALLAHAN, Circuit Judge, with whom Circuit Judges O'SCANNLAIN, TROTT, KLEINFELD, GOULD,…