                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

FERNANDO BELMONTES, JR.,                          No. 01-99018
               Petitioner-Appellant,                 D.C. No.
                 v.                              CV-89-00736-DFL
JOHN STOKES, Warden, for the                    Eastern District of
California State Prison at San                       California,
Quentin,*                                           Sacramento
              Respondent-Appellee.
                                                     ORDER

                      Filed October 24, 2005

  Before: Stephen Reinhardt, Diarmuid F. O’Scannlain, and
              Richard A. Paez, Circuit Judges.

                              Order;
                    Dissent by Judge Callahan


                               ORDER

  A judge requested a vote on whether to rehear this case en
banc. The case failed to receive a majority of the votes of the
nonrecused active judges in favor of en banc consideration.
Fed. R. App. P. 35. The request for rehearing en banc is
denied.




  *John Stokes is substituted for his predecessor, Jill L. Brown, as War-
den of California State Prison at San Quentin. See Fed. R. App. P.
43(c)(2).

                                 14489
14490                  BELMONTES v. STOKES
CALLAHAN, Circuit Judge, with whom O’SCANNLAIN,
KLEINFELD, GOULD, TALLMAN, BYBEE and BEA, Cir-
cuit Judges, join, dissenting from denial of rehearing en banc:

   I respectfully again dissent from a denial of rehearing en
banc in Mr. Belmontes’ case. My dissent is not based on my
adherence to the reasons set forth in my dissent from our deci-
sion last year not to take this case en banc, Belmontes v.
Woodford, 359 F.3d 1079 (9th Cir. 2004), but on our failure
to follow the Supreme Court’s directions.

   Following our prior opinion in this case, the Supreme Court
summarily granted the State of California’s petition for a writ
of certiorari, vacated our judgment, and remanded the case for
further consideration in light of Brown v. Payton, 125 S. Ct.
1432 (2005). Brown v. Belmontes, 125 S. Ct. 1697 (2005). On
remand, the panel properly rejected most of the issues raised
by Belmontes. However, on one critical issue - the constitu-
tional adequacy of the jury instructions in the penalty phase
of the trial - the panel majority improperly adhered to its own
perspective rather than listen to the Supreme Court. The
majority holds that Payton “does not affect” its holding
because Payton is a post-AEDPA1 case, decided under the
highly deferential AEDPA standard, while this case is a pre-
AEDPA case and “is determined by the application of the
ordinary rules of constitutional interpretation.” Belmontes v.
Brown, 414 F.3d 1094, 1101 (9th Cir. 2005). A review of this
case and Payton, however, reveals that this distinction
between the cases does not entitle the panel majority to ignore
the Supreme Court’s guidance on interpreting the jury instruc-
tions.
  1
   The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
104-132, 110 Stat. 124.
                          BELMONTES v. STOKES                        14491
                                      I

   The perceived chink in Belmontes’ trial, which the panel
majority attempts to broaden into a constitutional violation, is
the language in jury instruction factor (k).2 The majority
reluctantly concedes that the Supreme Court in Boyde v.
California, 494 U.S. 370, 383 (1990), held that factor (k), “at
least when accompanied by an appropriate clarifying instruc-
tion, was constitutional as applied to mitigating evidence
relating to the defendant’s psychological make-up and history,
which practically, if not legally, bore upon his commission of
the crime and was offered for the purpose of reducing his cul-
pability for the offense.” Belmontes, 414 F.3d at 1132. The
majority, nonetheless, attempts to create a distinction between
(a) mitigating evidence that addresses a defendant’s culpabil-
ity and (b) past conduct that is allegedly indicative of a defen-
dant’s probable future behavior. Id. It concludes that Boyde
“did not address whether a reasonable jury would have inter-
preted the unadorned factor (k) instruction to include the use
of this same type of evidence for a forward-looking purpose
which serves to mitigate without ameliorating the crime.” Id.
at 1133. This inordinate parsing of the Supreme Court’s opin-
ion permits the panel majority to then argue that the language
of factor (k) “allows the jury to consider evidence that bears
upon the commission of the crime by the defendant and
excuses or mitigates his culpability for the offense,” but “does
  2
   The jury was instructed:
      In determining which penalty to be imposed on the defendant you
      shall consider all of the evidence which has been received during
      any part of the trial of this case, except as you may be hereafter
      instructed. You shall take into account, and be guided by the fol-
      lowing factors, if applicable:
      ...
      Any other circumstances which extenuates the gravity of the
      crime even though it is not a legal excuse for the crime.
As noted by the panel, Belmontes, 414 F.3d at 1130 n.14, to remain con-
sistent with the text of the statute and the Supreme Court’s terminology
in Boyde, this instruction is referred to as “factor (k).”
14492                BELMONTES v. STOKES
not encompass events or considerations that are unrelated to
the defendant’s culpability.” Id. at 1134.

   The panel majority’s construction fails to recognize that the
Supreme Court has held that the language of factor (k) is not
an unconstitutional chink, but a sound jury instruction.
Indeed, the majority’s interpretation of Boyde is contrary to
the Supreme Court’s reading of Boyde in Payton. In Payton,
the Court wrote:

    The California Supreme Court was correct to iden-
    tify Boyde as the starting point for its analysis. Boyde
    involved a challenge to the same instruction at issue
    here, factor (k). As to the text of factor (k), Boyde
    established that it does not limit the jury’s consider-
    ation of extenuating circumstances solely to circum-
    stances of the crime. See 494 U.S. at 382, 110 S. Ct.
    1190. In so holding, we expressly rejected the sug-
    gestion that factor (k) precluded the jury from con-
    sidering evidence pertaining to a defendant’s
    background and character because those circum-
    stances did not concern the crime itself. Boyde
    instead found that factor (k), by its terms, directed
    the jury to consider any other circumstance that
    might excuse the crime, including factors related to
    a defendant’s background and character.

125 S. Ct. 1439 (emphasis added). It should be noted that this
is an affirmance of, not a deferral to, the California Supreme
Court’s interpretation of the scope of factor (k). Thus, the
majority’s attempt to distinguish between mitigating evidence
that addresses culpability and mitigating evidence that alleg-
edly goes to a defendant’s probable future behavior is con-
trary to the Supreme Court’s approach to factor (k).

                               II

  Any remaining question as to the Supreme Court’s antipa-
thy to the panel majority’s distinction between mitigating evi-
                      BELMONTES v. STOKES                  14493
dence that addresses culpability and mitigating evidence that
allegedly has a “forward-looking purpose” is answered by a
review of the arguments made and rejected in Payton.

   As I understand the majority’s logic, the language —
“[a]ny other circumstance, which extenuates the gravity of the
crime even though it is not a legal excuse of the crime,” —
must be read, following Boyde and Payton, to authorize con-
sideration of background and character evidence that “does
not concern the crime itself,” Payton, 125 S. Ct. 1439, but
which “explain[s] why the defendant committed the crime.”
Belmontes, 414 F.3d at 1134. The majority nonetheless claims
that factor (k) prohibits the jury from considering background
and character evidence that arguably addresses a defendant’s
“probable future conduct.” Id.

  The Supreme Court disapproved of this type of technical
hairsplitting in Payton by quoting the following passage from
Boyde:

    We think the proper inquiry in such a case is whether
    there is a reasonable likelihood that the jury has
    applied the challenged instruction in a way that pre-
    vents the consideration of constitutionally relevant
    evidence. . . . [J]urors do not sit in solitary isolation
    booths parsing instructions for subtle shades of
    meaning in the same way that lawyers might. Differ-
    ences among them in interpretation of instructions
    may be thrashed out in the deliberative process, with
    commonsense understanding of the instructions in
    the light of all that has taken place at the trial likely
    to prevail over technical hairsplitting.

Payton, 125 S. Ct. at 1440 (quoting Boyde, 393 U.S. at 381).
Moreover, it should be noted that the very evidence that the
panel majority sees as suggesting that Belmontes would not
pose a future danger if sentenced to life, also bears on his cul-
pability. A juror could just as reasonably conclude that the
14494                BELMONTES v. STOKES
evidence that Belmontes, following his prior convictions,
found God and rose to the number two position on a fire-
fighting crew before savagely beating an unarmed 19-year-old
woman with a dumbbell bar enhances his culpability, rather
than suggests that in the future he might make a positive con-
tribution to society.

   At the penalty phase of Payton’s trial, the defense concen-
trated on his post-crime behavior, presenting evidence that in
the 21 months Payton spent in prison, “he had made a sincere
commitment to God, participated in prison Bible study classes
and a prison ministry, and had a calming effect on other pris-
oners.” 125 S. Ct. at 1436. The prosecutor, however, in his
closing argument “offered jurors his opinion that factor (k)
did not allow them to consider anything that happened ‘after
the [crime] or later.’ ” Id. at 1436. The Supreme Court
explained:

    The parties do not now dispute that this was a mis-
    statement of law. The defense objected to the com-
    ment and moved for a mistrial, which the trial court
    denied. The court admonished the jury that the pros-
    ecutor’s comments were merely argument. But it did
    not explicitly instruct the jury that the prosecutor’s
    interpretation was incorrect.

Id. at 1437.

   On direct appeal, Payton argued that factor (k) was mis-
leading and that the jury incorrectly was led “to believe it
could not consider the mitigating evidence of his postconvic-
tion conduct.” Id. The California Supreme Court, however,

    applying Boyde, . . . which had considered the con-
    stitutionality of the same factor (k) instruction, . . .
    held that in the context of the proceedings there was
    no reasonable likelihood that Payton’s jury believed
    it was required to disregard his mitigating evidence.
                      BELMONTES v. STOKES                  14495
Id. The Supreme Court then denied certiorari. Id. Thereafter,
a district court granted Payton’s habeas petition, we first
affirmed the grant en banc by a six to five vote, and then on
remand from the Supreme Court, again affirmed the grant en
banc by a six to five vote. Id. at 1437-38.

   It is true that the Supreme Court in finally reversing this
court, and directing the denial of Payton’s habeas petition,
applied the deferential standard of the AEDPA. Nonetheless,
its comments concerning both the interpretation of factor (k)
and the proceedings before the jury, reveal that its remand in
this case is a directive to this court to reconsider its approach
to the jury instructions at issue.

  In Payton, the Supreme Court, addressing this court’s rea-
soning that Boyde’s rationale was not controlling because
Boyde concerned pre-crime, not post-crime, mitigating evi-
dence, wrote:

    We do not think that, in light of Boyde, the Califor-
    nia Supreme Court acted unreasonably in declining
    to distinguish between precrime and postcrime miti-
    gating evidence. After all, Boyde held that factor (k)
    directed consideration of any circumstance that
    might excuse the crime, and it is not unreasonable to
    believe that a postcrime character transformation
    could do so. Indeed, to accept the view that such evi-
    dence could not because it occurred after the crime,
    one would have to reach the surprising conclusion
    that remorse could never serve to lessen or excuse a
    crime. But remorse, which by definition can only be
    experienced after a crime’s commission, is some-
    thing commonly thought to lessen or excuse a defen-
    dant’s culpability.

Id. at 1439. This perspective — holding that the California
Supreme Court could reasonably decline to distinguish
between pre-crime and post-crime mitigating evidence — is
14496                 BELMONTES v. STOKES
contrary to the panel majority’s distinction in this case
between background and character evidence that goes to cul-
pability (but does not concern the crime) and such evidence
that allegedly goes to future dangerousness. In other words,
the Supreme Court’s determination that factor (k) may cover
post-crime mitigation evidence inherently rejects the panel
majority’s position that factor (k) prevented the jury from
considering the pre-crime mitigating evidence that allegedly
addressed future dangerousness.

   Furthermore, in Payton, the prosecutor had argued to the
jury that it should not consider Payton’s mitigation evidence.
The Supreme Court, nonetheless, held that the California
Supreme Court could reasonably conclude that “this line of
prosecutorial argument did not put Payton’s mitigating evi-
dence beyond the jury’s reach.” Id. at 1440. Again it is impos-
sible to reconcile this perspective with the majority’s
insistence that Belmontes’ jury “might” have been misled by
the trial court’s failure to affirmatively state that it could
“consider the portion of his mitigating evidence that tended to
show that he would adapt well to prison and would become
a constructive member of society if granted a life sentence.”
Belmontes, 414 F.3d at 1133.

   Unlike the situation in Payton, here, “both the prosecutor
and the defense attorney urged the jury to consider the miti-
gating evidence, and the trial court likewise instructed the jury
to consider all the evidence unless directed otherwise.” Id. at
1143 (O’Scannlain, J., dissenting). Surely, the dissent is cor-
rect that it is unreasonable to conclude that the jurors — hav-
ing heard the mitigating evidence, and contrary to the
instructions that they received from the prosecutor, defense
counsel and the court — decided that they could not consider
Belmontes’ mitigating evidence.

                              III

  Finally, the majority’s contrary position is rooted in a
premise that was squarely rejected by the Supreme Court in
                     BELMONTES v. STOKES                14497
Boyde and Payton. The majority argues that Belmontes’ “mit-
igation evidence was simply not covered by any natural read-
ing of the words of the unadorned factor (k) instruction.”
Belmontes, 414 F.3d at 1134. The same argument was made
and rejected in Boyde concerning evidence pertaining to a
defendant’s background and character, but not related to the
crime. 494 U.S. at 382. Similarly, a “natural reading” of fac-
tor (k) would not cover the post-crime mitigation evidence at
issue in Payton. Thus, the majority’s approach is based on a
semantical truism that the Supreme Court has repeatedly held
to have no legal significance.

                             IV

   Payton is not an irrelevant post-AEDPA case. Rather, the
Supreme Court’s reference to Payton in its order remanding
this case to us was a clear and polite direction to reconsider
our approach to the jury instructions at issue in light of the
Supreme Court’s opinions in Payton and Boyde. I dissent
from the denial of rehearing en banc because we failed to
abide by the Supreme Court’s directive.
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