Mendez v. Knowles

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MICHAEL MENDEZ,  No. 06-15153
Petitioner-Appellant,
v.  D.C. No.
CV-03-00022-WHA
MIKE KNOWLES,* Warden,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of California
William H. Alsup, Distict Judge, Presiding

Argued and Submitted
April 14, 2008—San Francisco, California

Filed August 1, 2008

Before: Ronald M. Gould, Richard R. Clifton, and
N. Randy Smith, Circuit Judges.

Opinion by Judge Gould

*We retain in the caption the name of the original custodian of Michael
Mendez, Warden Mike Knowles. Should the parties desire that the caption
reflect his current custodian, they may file a motion requesting such a
change, supported by documentation identifying the current custodian.

9809
 MENDEZ v. KNOWLES 9813

COUNSEL

Barry L. Morris, Hayward, California, for the petitioner-
appellant.

Mark Howell, Assistant Attorney General for the state of Cal-
ifornia, San Francisco, California, for the respondent-
appellee.

OPINION

GOULD, Circuit Judge:

The state of California charged and tried Michael Mendez
for the molestation of two minor boys, in violation of sections
288(a), (b)(1), and 647.6(c)(2) of the California Penal Code
(“CPC”). Over Mendez’s objection, the prosecution intro-
duced evidence of two prior convictions: (1) in 1989, Mendez
pleaded guilty to sexual battery of a five-year-old boy in vio-
lation of CPC § 243.4; and (2) in 1990, Mendez pleaded
guilty to committing a lewd act on a seven-year-old boy in
violation of CPC § 288(a). At the conclusion of Mendez’s
trial, the trial court instructed the jury that if it found by a pre-
ponderance of the evidence that Mendez had committed a
prior sexual offense, it could infer that he was likely to com-
9814 MENDEZ v. KNOWLES
mit and did commit the crimes for which he was on trial. The
jury convicted Mendez on all counts.

Before the district court, in a 28 U.S.C. § 2254 petition for
writ of habeas corpus, Mendez argued that these instructions
violated his rights to due process and to a jury trial because
the jury could have found him guilty on evidence less certain
than proof beyond a reasonable doubt. Mendez also argued,
among other challenges to the jury verdict, that the trial court
violated his right to due process by not holding a hearing on
his competence to stand trial. The district court denied
Mendez’s petition, but certified for appeal his claim of
instructional error. On appeal, Mendez raises the certified
issue, and also reasserts that the trial court violated his due
process right to a hearing on his competence. California state
prison warden Mike Knowles argues that we should not reach
the merits of Mendez’s appeal because he filed his notice of
appeal late, and the district court erred in excusing Mendez’s
late filing. We have jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253. We hold that the district court did not err
in excusing Mendez’s late filing of a notice of appeal, and we
affirm the district court’s denial of Mendez’s habeas petition.

I

On September 14, 1998, the State of California filed a com-
plaint against Mendez alleging violations of the California
Penal Code for his alleged molestation of two boys, one nine
years old and the other ten. On June 1, 1999, while jury selec-
tion was underway, the prosecution offered to enter into a
plea agreement with Mendez in which it would recommend a
prison term of twenty-five years to life if Mendez pleaded
guilty to all charges. Mendez placed two prerequisites on his
acceptance of the plea agreement offer: (1) videotaped confir-
mation that the ten-year-old victim had been informed of the
sentence Mendez was to receive; and (2) official assurance
that the ten-year-old victim’s school records would be purged
of any reference to having been molested. The trial court told
 MENDEZ v. KNOWLES 9815
Mendez that it lacked the authority to order what Mendez had
requested, and the prosecution advised Mendez that it would
withdraw the offer unless he entered into the plea agreement
during that court session. Defense counsel then stated,
“[W]e’re either in a situation where we’re going to trial or
we’re in a situation that comes within [California] Penal Code
Section 1368. . . . [H]e’s not making sense.” The trial court
inquired about defense counsel’s reference to CPC § 1368,
which requires the court to order a hearing to determine a
defendant’s mental competence if the trial court forms a doubt
as to the defendant’s competence. Defense counsel said that
a hearing was unnecessary at that time, but that he would “ad-
vise the Court at the earliest possible moment” if he believed
Mendez fell within CPC § 1368.

On June 8, 1999, during jury selection but out of the pres-
ence of the jury, Mendez accused the prosecutor of calling
him a “sex predator.” Later during the same proceeding,
defense counsel formally requested that the trial court suspend
proceedings pursuant to CPC § 1368: “I have a doubt as to the
competency of Mr. Mendez to rationally assist me in the
defense of the case under 1368. And I would ask the Court to
recess from the jury trial in order to investigate that problem.
. . . I would simply say my observations at this point would
suggest some degree of decompensation or exacerbation of
the problem [identified and flagged for the Court a week earli-
er].” In response, the trial court stated that it would “suspend
criminal proceedings pursuant to [California] Penal Code Sec-
tion 1368” and that it would later “go further in terms of
appointing the appropriate experts to examine Mr. Mendez.”
That afternoon, the trial court decided that “rather than sus-
pending the proceedings at [that] time and ordering a hearing
pursuant to that section and related sections,” it would “ap-
point an expert in the matter to assist [it] in making that deter-
mination as to whether to suspend the proceedings and order
a competency hearing.” Defense counsel objected to the trial
court’s decision not to follow the CPC § 1368 procedure.
9816 MENDEZ v. KNOWLES
On June 11, 1999, the trial court received the expert’s
report. The expert determined that “Mendez may have some
intellectual limits, but he is not incapacitated.” The expert
also concluded that Mendez appreciated the charges against
him and the range and nature of the possible penalties against
him, he understood the adversarial nature of legal proceed-
ings, he had “the capacity to disclose pertinent facts to his
attorney,” he could relate to his attorney, he could “assist in
planning a defense, . . . realistically challeng[e] the prosecu-
tion, . . . manifest appropriate courtroom behavior, and . . .
testify relevantly if need be.” Relying on the expert’s report,
the trial court concluded that it would not suspend the pro-
ceedings and would not order a CPC § 1368 hearing to ascer-
tain Mendez’s competence. Mendez’s case then proceeded to
trial.

At trial, the prosecution introduced evidence of Mendez’s
two prior convictions upon guilty pleas: (1) a 1989 conviction
for sexual battery of a five-year-old boy in violation of CPC
§ 243.4, and (2) a 1990 conviction for committing a lewd act
on a seven-year-old boy in violation of CPC § 288(a). At the
conclusion of the trial, the trial court gave the jury the follow-
ing oral and written instructions, including California Jury
Instructions—Criminal (“CALJIC”) 2.50.01 and 2.50.1 (6th
ed. 1996):

[CALJIC 1.01:]

Do not single out any particular sentence or any indi-
vidual point or instruction and ignore the others.
Consider the instructions as a whole and each in
light of all the others. . . .

[CALJIC 2.50.01:]

Evidence has been introduced for the purpose of
showing that the defendant committed crimes other
than that for which he is on trial.
 MENDEZ v. KNOWLES 9817
This evidence, if believed, may be considered by you
for the . . . limited purpose of determining if it tends
to show the existence of the intent which is a neces-
sary element of the crime charged.

For the limited purpose for which you may consider
such evidence, you must weigh it in the same man-
ner as you do all other evidence in the case.

Evidence has been introduced for the purpose of
showing that the defendant engaged in a sexual
offense on one or more occasions other than that
charged in this case.

“Sexual offense” means a crime under the laws of a
state or of the United States that involves . . . any
conduct made criminal by Penal Code Section
288(a) and 243 point 4.

If you find that the defendant committed a prior sex-
ual offense, you may, but are not required to, infer
that the defendant had a disposition to commit the
same or similar type of sexual offense. If you find
that the defendant had this disposition, you may, but
are not required to, infer that he was likely to com-
mit and did commit the crime or crimes of which he
is accused.

Unless you are otherwise instructed, you must not
consider this evidence for any other purpose.

[CALJIC 2.50.1:]

Within the meaning of the preceding instructions, the
prosecution has the burden of proving by a prepon-
derance of the evidence that a defendant committed
crimes or sexual offenses other than those for which
he is on trial.
9818 MENDEZ v. KNOWLES
You must not consider this evidence for any purpose
unless you find by a preponderance of the evidence
that a defendant committed the other crimes or sex-
ual offenses. . . .

[Additional Beyond A Reasonable Doubt Instruc-
tions:]

In deciding whether or not to testify, the defendant
may choose to rely . . . upon the failure, if any, of
the People to prove beyond a reasonable doubt every
essential element of the charge against him. . . .

A defendant in a criminal action is presumed to be
innocent until the contrary is proved, and in case of
a reasonable doubt whether his guilt is satisfactorily
shown, he is entitled to a verdict of not guilty. This
presumption places upon the People the burden of
proving him guilty beyond a reasonable doubt.

Reasonable doubt is defined as follows: It is not a
mere possible doubt because everything relating to
human affairs is open to some possible or imaginary
doubt. It is that state of the case which, after the
entire comparison and consideration of all the evi-
dence, leaves the minds of the jurors in that condi-
tion that they cannot say that they feel an abiding
conviction of the truth of the charge. . . .

In order to find the defendant guilty, it is necessary
for the prosecution to prove beyond a reasonable
doubt the commission of a specific act or acts consti-
tuting that crime within the period alleged. . . .

If you find the defendant guilty of one or more of the
crimes charged or included in the crime charged in
the information, you must determine whether the
allegation of the prior conviction for a violation of
 MENDEZ v. KNOWLES 9819
Penal Code section 288 sub A on or about March
20th, 1990, is true. The People have the burden of
proving the truth of the allegation. That also must be
proved to the standard of beyond a reasonable doubt.
If you have a reasonable doubt that it is true, you
must find it to be not true.

On June 23, 1999, the jury convicted Mendez as charged.
On September 13, 1999, he was sentenced to a prison term of
167 years to life. Mendez filed a notice of appeal on Septem-
ber 15, 1999, and his conviction was affirmed by the Califor-
nia Court of Appeal on June 22, 2001. On October 10, 2001,
the California Supreme Court denied Mendez’s petition for
review.

On January 3, 2003, Mendez filed a petition for writ of
habeas corpus in the United States District Court for the
Northern District of California. On December 16, 2005, the
district court denied Mendez’s petition. On January 18, 2006,
Mendez filed an untimely notice of appeal. The district court
determined that the late filing of the notice of appeal was “ex-
cusable neglect” and deemed the notice of appeal effective.
The district court certified for appeal Mendez’s claim of
instructional error. Mendez’s appellate opening brief in this
court addresses the certified issue of instructional error and
the uncertified issue of whether the trial court violated
Mendez’s due process rights by not holding a hearing to
ascertain his competence to stand trial.

II

As a preliminary issue, California state prison warden Mike
Knowles (“the Warden”) argues that Mendez’s appeal is fore-
closed because he filed an untimely notice of appeal that
should not have been excused by the district court. We dis-
agree.

We review for abuse of discretion a district court’s decision
to grant a motion for an extension of time to file a notice of
9820 MENDEZ v. KNOWLES
appeal. Pincay v. Andrews, 389 F.3d 853, 858 (9th Cir. 2004)
(en banc). We affirm a district court’s grant of a motion for
an extension of time “unless we are left with the definite and
firm conviction that the lower court committed a clear error
of judgment in the conclusion it reached after weighing the
relevant factors.” Id.

An appeal “from a district court to a court of appeals may
be taken only by filing a notice of appeal with the district
clerk.” Fed. R. App. P. 3(a)(1). The notice of appeal “must be
filed with the district clerk within 30 days after the judgment
or order appealed from is entered.” Fed. R. App. P.
4(a)(1)(A). The district court entered judgment denying
Mendez’s petition for writ of habeas corpus on December 16,
2005. The thirtieth and final day for Mendez to file a timely
notice of appeal fell on Sunday, January 15, 2006. The next
day, Monday, January 16, 2006, was Martin Luther King,
Jr.’s Birthday, a national and legal holiday, and the court was
closed. Therefore, the final day for Mendez to file the notice
of appeal was Tuesday, January 17, 2006. See Fed. R. App.
P. 26(a)(3) (“Include the last day of the period unless it is a
Saturday, Sunday, [or] legal holiday . . . .”); Fed. R. App. P.
26(a)(4) (“As used in this rule, ‘legal holiday’ means . . . Mar-
tin Luther King, Jr.’s Birthday . . . .”).

Mendez’s counsel placed the notice of appeal, addressed to
the district court, in a mailbox at 4:15 p.m. on Friday, January
13, 2006. On Saturday, January 14, 2006, he mailed another
copy to the district court. On Tuesday, January 17, 2006,
Mendez’s counsel telephoned the district court clerk’s office
at 1 p.m., and learned that the clerk’s office had not received
the notice of appeal. At 4:02 p.m. that same day, he called
again, but because the clerk’s office was closed, he was
unable to inquire about the notice of appeal. Mendez’s notice
of appeal arrived at the clerk’s office one day late, on
Wednesday, January 18, 2006. On January 30, 2006, Mendez
moved for an extension of time pursuant to Rule 4(a)(5)(A)
of the Federal Rules of Appellate Procedure, which permits a
 MENDEZ v. KNOWLES 9821
party to so move no later than thirty days after the expiration
of the deadline for filing a notice of appeal and permits the
district court to extend the time for filing if the party so mov-
ing shows excusable neglect or good cause. Fed. R. App. P.
4(a)(5)(A). On February 8, 2006, the district court found
excusable neglect and granted Mendez permission to file a
late notice of appeal.

[1] The Warden contends that the district court abused its
discretion when it concluded that Mendez’s untimely filing of
a notice of appeal was excusable neglect.1 In evaluating
whether neglect is excusable, a district court must consider
the four factors established by the Supreme Court in Pioneer
Investment Services Co. v. Brunswick Associates Limited
Partnership, 507 U.S. 380 (1993): “(1) the danger of preju-
dice to the non-moving party, (2) the length of delay and its
potential impact on judicial proceedings, (3) the reason for the
delay, including whether it was within the reasonable control
of the movant, and (4) whether the moving party’s conduct
was in good faith.” Pincay, 389 F.3d at 855 (citing Pioneer,
507 U.S. at 395).

Here, the district court found that three of the four Pioneer
factors weighed in favor of granting Mendez’s motion: “Re-
spondent concedes that it will not suffer prejudice if the
extension is granted. He also admits that petitioner acted in
good faith. The delay was only one day—practically the shor-
test delay possible. It had no impact on judicial proceedings
beyond the instant motion.” In focusing on the only factor at
issue—the reason for the delay—the district court determined
that the reason for the late filing was that Mendez’s counsel
1
Mendez did not claim that there was good cause for the late filing, and
the advisory committee notes make clear that the “good cause” standard
is only applicable to motions for extension of time filed within the initial
thirty-day period for filing a notice of appeal. Fed. R. App. P. 4(a)(5)
Advisory Committee’s Notes to 1979 Amendment. Therefore, the only
contested issue is whether the neglect of Mendez’s counsel was excusable.
9822 MENDEZ v. KNOWLES
relied on the Postal Service to deliver the notice of appeal
crosstown on the second day after its deposit in a mailbox.
Even though the district court found that a late filing was
foreseeable because the Postal Service advises its customers
that first-class mail takes one to three days for delivery and
that Mendez’s counsel previously had not been diligent in fil-
ing papers in this case, it nevertheless concluded that this
neglect was excusable.

[2] The Warden presents several arguments to support his
contention that the district court abused its discretion in grant-
ing Mendez an extension of time for filing his notice of
appeal. First, the Warden contends that because the delay was
not caused by circumstances beyond Mendez’s control, it
should not be excused. But the Supreme Court in Pioneer
rejected this rigid rule for excusable neglect, applying a
broader standard that permitted a finding of excusable neglect
even where the filer was in control of the situation that caused
the delay. 507 U.S. at 386-95 (“ ‘[E]xcusable neglect’ . . . is
not limited to situations where the failure to timely file is due
to circumstances beyond the control of the filer.”). In our en
banc decision in Pincay, we applied this broader standard and
affirmed the district court’s decision to grant an extension
after finding excusable neglect where a paralegal miscalcu-
lated the filing deadline—a situation in the control of the filer.
389 F.3d at 856-60 (explaining that a situation not in control
of the filer is when the messenger delivering the documents
to the clerk’s office is hit by a truck). We thus reject the War-
den’s contention that Mendez’s neglect cannot be excused
because it was caused by circumstances within Mendez’s con-
trol.

The Warden next argues that the most important Pioneer
factor is the third—the reason for delay—and that the district
court did not give this factor sufficient weight. But in Pincay
we declined to give primary weight to any one of the Pioneer
factors, concluding that “the weighing of Pioneer’s equitable
factors” must be left “to the discretion of the district court in
 MENDEZ v. KNOWLES 9823
every case.” 389 F.3d at 860. Here, following Pincay, the dis-
trict court appropriately weighed the factors to determine that
the neglect of Mendez’s counsel was excusable.2

The Warden also asserts that the district court applied an
erroneous standard that requires a late filing to be inevitable
for it to be considered inexcusable neglect. However, the
record reveals that the district court did not adopt a standard
of inevitability. The district court, while undertaking an analy-
sis based on the Pioneer factors, stated a fact—that it was
possible for the notice of appeal to arrive on time given the
day Mendez’s counsel placed it in the mailbox. This was not
the recital of a standard, but rather was the mention of one
fact of many the district court weighed pursuant to Pioneer to
conclude that the untimely filing was the result of excusable
neglect.

Finally, the Warden urges us to conclude that the district
court committed a “clear error in judgment” by granting
Mendez’s motion for an extension of time despite the egre-
gious behavior of Mendez’s counsel. The Warden stresses
that throughout the case Mendez’s counsel repeatedly missed
filing deadlines, and, despite knowledge that the district court
clerk’s office had not received the notice of appeal as of 1
p.m. on the day it was due, he took no action to ensure its
timely delivery. The Warden relies on decisions of the Fourth
and Seventh Circuits to support his contention that these
actions amount to inexcusable neglect.3 See Thompson v. E.I.
2
The Warden asserts that the district court also erred by considering the
prejudice to Mendez if the district court denied his motion to extend the
time for filing. While prejudice to the party seeking an extension is not
one of the Pioneer factors, it is clear from Pincay that a district court is
not limited in its analysis of a motion for extension of time to those four
factors. 389 F.3d at 859 (explaining that a district court can consider “the
likelihood of injustice if the appeal was not allowed”).
3
The Warden also relies on Kyle v. Campbell Soup Co., 28 F.3d 928
(9th Cir. 1994), a case decided before our en banc decision in Pincay. In
9824 MENDEZ v. KNOWLES
DuPont de Nemours & Co., Inc., 76 F.3d 530 (4th Cir. 1996);
Prizevoits v. Indiana Bell Telephone Co., 76 F.3d 132 (7th
Cir. 1996). In Prizevoits, the counsel for the party seeking an
extension of time believed that he could not proceed with fil-
ing a notice of appeal until after the district court denied
another pending motion. 76 F.3d at 133. The Seventh Circuit
determined that the district court had abused its discretion in
granting an extension of time to file the notice of appeal, con-
cluding that excusable neglect “refers to the missing of a
deadline as a result of such things as misrepresentations by
judicial officers, lost mail, and plausible misinterpretations of
ambiguous rules,” that the rules misinterpreted by counsel
were unambiguous, and that, as a result, his neglect was inex-
cusable. Id. at 134. In Pincay, we acknowledged the “differ-
ing conclusions” arrived at by other circuits, but elected not
to adopt the narrow definition of excusable neglect created by
the Seventh Circuit in Prizevoits. 389 F.3d at 857-60. Instead,
we focused on the deference given to the district court’s abil-
ity, with a more intimate knowledge of the case, to weigh the
Pioneer factors and determine whether the untimely filing
was a result of excusable neglect. Id. at 859-60.

[3] Thompson presents a situation factually similar to
Mendez’s untimely filing. See 76 F.3d at 532. There, the party
seeking an extension of time allegedly placed the notice of
appeal in the mail three days before the filing deadline, but
the notice of appeal arrived three days late. Id. The Fourth
Circuit affirmed the district court’s decision to deny the
motion for extension of time, concluding that “the neglect at
issue in [that] case [was] nothing more than inexcusable run-
of-the-mill inattentiveness by counsel.” Id. at 535. The Fourth

Kyle we reversed the district court’s finding of excusable neglect. 28 F.3d
at 931. But the untimely filing in Kyle, unlike that in Mendez’s case,
involved an attorney’s misinterpretation of unambiguous rules. Id. As a
result, it does not provide us with relevant guidance as to whether the dis-
trict court abused its discretion in this case.
 MENDEZ v. KNOWLES 9825
Circuit determined that litigants, other than pro se prisoners,
who decide “to rely on the vagaries of the mail must suffer the
consequences if the notice of appeal fails to arrive within the
applicable time period.” Id. at 534. Unlike the Fourth Circuit,
however, we have concluded that per se rules, finding specific
actions inexcusable as a matter of law, “are not consistent
with Pioneer.” Pincay, 389 F.3d at 855. In other words, in this
circuit, every time a party’s counsel decides to “rely on the
vagaries of the mail,” that party is not necessarily foreclosed
from seeking an extension of time to file a notice of appeal
if the notice is untimely. See id. at 859-60 (“There should . . .
be no rigid legal rule against late filings attributable to any
particular type of negligence. Instead, we leave the weighing
of Pioneer’s equitable factors to the discretion of the district
court in every case.”). Applying this deferential standard of
review, we affirm the district court’s grant of Mendez’s
motion for an extension of time, and conclude that we have
jurisdiction to review the merits of Mendez’s appeal.

III

We review de novo the district court’s denial of a habeas
petition. Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir.
2004). Because Mendez is in custody pursuant to the judg-
ment of a state court, because Mendez’s claims were adjudi-
cated on the merits by the Humboldt County Superior Court,
and because Mendez filed his habeas petition after the effec-
tive date of the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), we must deny the petition unless the
state court’s adjudication of Mendez’s claims resulted in a
decision that was either (1) contrary to, or involved an unrea-
sonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States, or (2)
based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding. 28
U.S.C. § 2254(d). Although § 2254(d) mandates that only
Supreme Court precedential holdings clearly establish a right,
our circuit precedent may provide persuasive authority for
9826 MENDEZ v. KNOWLES
purposes of determining whether a state court decision is an
unreasonable application of Supreme Court precedent. Clark
v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). Because
there was a reasoned state judgment rejecting Mendez’s fed-
eral claims—the California Court of Appeal judgment—we
“look through” the later unexplained order of the California
Supreme Court rejecting Mendez’s claims and analyze
whether the reasoned state judgment was erroneous under the
restrictive standard of § 2254(d). See Ylst v. Nunnemaker, 501
U.S. 797, 804-06 (1991).

A

The issue certified by the district court for our review is
whether the California trial court violated Mendez’s rights to
due process of law and trial by jury by instructing the jury that
if the prosecution proved by a preponderance of the evidence
that Mendez committed crimes or sexual offenses other than
that for which he was on trial, the jury could infer that
Mendez had the disposition to commit the same type of sexual
offense and that he was likely to commit and did commit the
crimes of which he was accused. Mendez argues on appeal
that these instructions are unconstitutional under Gibson v.
Ortiz, 387 F.3d 812 (9th Cir. 2004), because they permit the
jury to convict Mendez of crimes on evidence less certain
than proof beyond a reasonable doubt. The Warden counters
that the district court correctly identified several differences
between the facts of Gibson and those of Mendez’s case that
permit the same instructions to pass constitutional muster
here. We agree with the district court and the Warden, and
hold that these differences are sufficient to distinguish Gibson
and establish a constitutionally-sound guilty verdict in this
case.

[4] The Due Process Clause of the Fourteenth Amendment
requires that the prosecution prove every element of a crimi-
nal offense beyond a reasonable doubt. Gibson, 387 F.3d at
820 (citing In re Winship, 397 U.S. 358, 364 (1970)). “Any
 MENDEZ v. KNOWLES 9827
jury instruction that ‘reduce[s] the level of proof necessary for
the Government to carry its burden . . . is plainly inconsistent
with the constitutionally rooted presumption of innocence.’ ”
Id. (quoting Cool v. United States, 409 U.S. 100, 104 (1972)).
When a jury instruction is erroneous because it misdescribes
the burden of proof, it “vitiates all the jury’s findings,” and
no verdict within the meaning of the Sixth Amendment is ren-
dered. Sullivan v. Louisiana, 508 U.S. 275, 281 (1993).
“Where such an error exists, it is considered structural and
thus is not subject to harmless error review.” Gibson, 387
F.3d at 820 (citing Sullivan, 508 U.S. at 280-82).

[5] Conversely, if the instructions in question are consid-
ered “ambiguous,” then they will only violate due process if
“a reasonable likelihood exists that the jury has applied the
challenged instruction[s] in a manner that violates the Consti-
tution.” Id. at 820-21 (citing Estelle v. McGuire, 502 U.S. 62,
72 (1991)); see also Mejia v. Garcia, No. 06-16460, slip op.
9313, 9321-22 (9th Cir. July 25, 2008). All challenged
instructions must be considered in light of all of the jury
instructions and the trial record as a whole. Id. at 821 (citing
Cupp v. Naughten, 414 U.S. 141, 146-47 (1973)).

The jury instructions at issue include CALJIC 2.50.01 and
2.50.1. The instructions given at Mendez’s trial that incorpo-
rate CALJIC 2.50.01 provide:

Evidence has been introduced for the purpose of
showing that the defendant committed crimes other
than that for which he is on trial.

This evidence, if believed, may be considered by you
for the . . . limited purpose of determining if it tends
to show the existence of the intent which is a neces-
sary element of the crime charged.

For the limited purpose for which you may consider
such evidence, you must weigh it in the same man-
ner as you do all other evidence in the case.
9828 MENDEZ v. KNOWLES
Evidence has been introduced for the purpose of
showing that the defendant engaged in a sexual
offense on one or more occasions other than that
charged in this case.

“Sexual offense” means a crime under the laws of a
state or of the United States that involves . . . any
conduct made criminal by Penal Code Section
288(a) and 243 point 4.

If you find that the defendant committed a prior sex-
ual offense, you may, but are not required to, infer
that the defendant had a disposition to commit the
same or similar type of sexual offense. If you find
that the defendant had this disposition, you may, but
are not required to, infer that he was likely to com-
mit and did commit the crime or crimes of which he
is accused.

Unless you are otherwise instructed, you must not
consider this evidence for any other purpose.

The instructions given at Mendez’s trial that incorporate
CALJIC 2.50.1 provide:

Within the meaning of the preceding instructions, the
prosecution has the burden of proving by a prepon-
derance of the evidence that a defendant committed
crimes or sexual offenses other than those for which
he is on trial.

You must not consider this evidence for any purpose
unless you find by a preponderance of the evidence
that a defendant committed the other crimes or sex-
ual offenses. . . .

[6] In Gibson, we concluded that almost precisely the same
combination of instructions were unconstitutional and
 MENDEZ v. KNOWLES 9829
affirmed the district court’s grant of habeas relief, explaining
that “the interplay of [CALJIC 2.50.01 and 2.50.1] allowed
the jury to find that Gibson committed the uncharged sexual
offenses by a preponderance of the evidence and thus to infer
that he had committed the charged acts based upon facts
found not beyond a reasonable doubt, but by a preponderance
of the evidence.” Id. at 822. We determined that a jury con-
viction based on these instructions conflicted with the
Supreme Court’s maxim in Winship “that a defendant may not
be convicted except ‘upon proof beyond a reasonable doubt
of every fact necessary to constitute the crime with which he
is charged.’ ” Id. (quoting Winship, 397 U.S. at 364). We also
determined, however, that standing alone CALJIC 2.50.01,
which permitted the jury to infer that Gibson committed the
charged crimes if it concluded that he had committed the prior
sexual offenses, was constitutionally valid, and that had the
jury not received CALJIC 2.50.1, which ascribed the lesser
burden of proof to evidence of the previous sexual offenses,
we “would have assumed that the jury followed, with respect
to the prior sexual offenses evidence, the only standard
regarding burden of proof they had received: reasonable
doubt.” Id. Thus, so far as our Gibson precedent is concerned,
it was constitutionally valid for the jury to infer that Gibson
committed the charged crime based on the previous,
uncharged sexual offenses so long as those previous offenses
were proven beyond a reasonable doubt. Id.

[7] The Warden distinguishes Gibson by arguing that,
because the prosecution proved beyond a reasonable doubt
that Mendez had been convicted of at least one of the prior
sexual offenses, the jury could not have convicted Mendez of
the charged offenses on anything less than proof beyond a
reasonable doubt. We agree. Under Gibson, it was constitu-
tionally valid for the jury to infer that Mendez committed the
charged crimes based on the previous sexual offense because
that previous offense was proven beyond a reasonable doubt.
Id.
9830 MENDEZ v. KNOWLES
[8] In Keating v. Hood, 191 F.3d 1053 (9th Cir. 1999),4 we
recognized an exception to the principle established by the
Supreme Court in Sullivan that where there is a structural
error in how a case is submitted to the jury, which allows the
jury to deliver a general verdict that potentially rested on dif-
ferent theories of guilt, at least one of which was constitution-
ally invalid, the conviction must be set aside. Id. at 1063. The
limited exception to this principle is that “reversal may not be
required if it is absolutely certain that the jury relied upon the
legally correct theory to convict the defendant.” Id. (internal
quotation marks omitted). In Lara v. Ryan, 455 F.3d 1080
(9th Cir. 2006), we applied this standard of absolute certainty
to conclude that where the jury was erroneously given an
instruction that the petitioner could be convicted of attempted
murder on either the proper theory of express malice or the
improper theory of implied malice, the jury’s specific finding
that the defendant attempted to murder willfully, deliberately,
and with premeditation “necessitate[d] the conclusion that it
found [the defendant] guilty of attempted murder with express
malice.” Id. at 1087 (“[B]ecause the jury specifically found
that Lara committed the murder attempts willfully, deliber-
ately and with premeditation, it necessarily did not find that
Lara committed the attempts recklessly,” which is what would
be required under an implied malice theory).

[9] Applying this “absolute certainty” test to Mendez’s
case, we are comfortable to an absolute certainty that the jury
did not go astray, and specifically did not rely upon an incor-
rect burden of proof in convicting Mendez. Mendez’s jury
specifically found beyond a reasonable doubt that Mendez
had been convicted of one of the two prior sexual offenses.
Because the jury made this specific finding, it necessarily did
4
In Payton v. Woodford, 346 F.3d 1204 (9th Cir. 2003), we overruled
Keating only to the extent that it placed on the State the burden of demon-
strating the significance of the error under the harmlessness standard. Id.
at 1217 n.18; see also Mancuso v. Olivarez, 292 F.3d 939, 944 n.1 (9th
Cir. 2002).
 MENDEZ v. KNOWLES 9831
not find that Mendez committed the prior sexual offense by
a preponderance of the evidence. See Lara, 455 F.3d at 1087.

Even if the jury had not made a specific finding of a prior
conviction, the defendant’s uncontested prior convictions
allay the concerns articulated in Gibson that the defendant
could have been convicted on proof less than beyond a rea-
sonable doubt. 387 F.3d at 822 (concluding that had the jury
not been instructed that it could find that the defendant had
committed the prior bad act by a preponderance of the evi-
dence, there would have been no constitutional violation).
Here, Mendez’s prior convictions for sexual offenses made
the offending jury instruction not only unnecessary but also
irrelevant, because Mendez’s prior sexual misconduct had
already been proven beyond a reasonable doubt. Indeed, in
Mendez’s case, his convictions were based upon guilty pleas
which eliminated any uncertainty about whether he had com-
mitted the prior sexual offenses. As the fact of the prior con-
victions was not contested by Mendez, there was simply
nothing left for the jury to find which could have been based
upon or affected by a lesser “preponderance” standard.

Additional differences between Mendez’s case and Gibson
buttress our conclusion that the jury did not convict Mendez
based on a constitutionally deficient burden of proof. First, in
Mendez’s case, several instructions regarding the beyond a
reasonable doubt standard were read to the jury after the jury
was given the preponderance of the evidence instruction;
whereas in Gibson, once the preponderance of the evidence
standard was read to the jury, the beyond a reasonable doubt
standard was not included in any subsequent instructions.
Second, the prosecutor in Mendez’s case, unlike the prosecu-
tor in Gibson, did not discuss, much less emphasize, the pre-
ponderance of the evidence standard in her closing argument.
Third, the victim of Gibson’s prior sexual offenses and the
charged offense was the same, whereas Mendez’s prior sexual
offenses involved different victims than those involved in his
charged offenses. We conclude that no rational juror would
9832 MENDEZ v. KNOWLES
have understood the instructions on evidence of prior sexual
misconduct to relieve the jury of its duty to find beyond a rea-
sonable doubt that Mendez had committed the charged
offenses. We therefore uphold Mendez’s convictions as con-
stitutionally sound.

B

Mendez asks us to expand the Certificate of Appealability
(“COA”) to include his argument that the trial court improp-
erly found him competent to stand trial without holding an
evidentiary hearing. Although Mendez did not follow the pro-
cedure delineated in Rule 22-1(e) of the Ninth Circuit Rules
for requesting the expansion of a COA—briefing certified
issues under the heading, “Certified Issues,” and briefing
uncertified issues under the heading, “Uncertified Issues”—,
he did request that we expand the COA.

[10] “The required showing for originally obtaining a COA
on a claim remains the standard by which this court reviews
the broadening of a COA. A habeas petitioner’s assertion of
a claim must make a substantial showing of the denial of a
constitutional right.” Doe v. Woodford, 508 F.3d 563, 567
(9th Cir. 2007) (per curiam) (quoting Hiivala v. Wood, 195
F.3d 1098, 1104 (9th Cir. 1999) (internal quotation marks
omitted)). To make this showing, Mendez “must demonstrate
that the issues are debatable among jurists of reason; that a
court could resolve the issues [in a different manner]; or that
the questions are adequate to deserve encouragement to pro-
ceed further.” Barefoot v. Estelle, 463 U.S. 880, 893 n.4
(1983) (alteration in original, internal quotation marks omit-
ted), superseded on other grounds by 28 U.S.C. § 2253(c)(2).

The uncertified issue here involves Mendez’s competence
to stand trial. Mendez presents two grounds for the appeal of
this issue. First, Mendez contends that under the Supreme
Court’s holdings in Drope v. Missouri, 420 U.S. 162 (1975),
and Pate v. Robinson, 383 U.S. 375 (1966), Mendez presented
 MENDEZ v. KNOWLES 9833
substantial evidence that an evidentiary hearing was required
to determine whether he was competent to stand trial. Second,
Mendez argues that he was deprived of a state-created liberty
interest in an evidentiary hearing when the state did not fol-
low the mandates of CPC § 1368 and provide him with an
evidentiary hearing. The district court denied relief on this
claim and also declined to certify the issue. Because, Mendez
has failed to “make a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), we decline to
expand the COA to consider the merits of the issue.

1

[11] Mendez contends that the trial court violated his due
process right to a fair trial by not providing him with an evi-
dentiary hearing to determine his competence. “[T]he failure
to observe procedures adequate to protect a defendant’s right
not to be tried or convicted while incompetent to stand trial
deprives him of his due process right to a fair trial.” Drope,
420 U.S. at 172 (explaining the holding in Pate, 383 U.S. at
386). “The question to be asked by the reviewing court is
whether a reasonable judge, situated as was the trial court
judge whose failure to conduct an evidentiary hearing is being
reviewed, should have experienced doubt with respect to
competency to stand trial.” de Kaplany v. Enomoto, 540 F.2d
975, 983 (9th Cir. 1976) (en banc). “[W]here the evidence
raises a ‘bona fide doubt’ as to a defendant’s competence to
stand trial, the trial judge on his own motion must . . . conduct
a hearing to determine competency to stand trial.” Torres v.
Prunty, 223 F.3d 1103, 1106-07 (9th Cir. 2000) (internal quo-
tations marks omitted); see also Moore v. United States, 464
F.2d 663, 666 (9th Cir. 1972) (“[A] due process evidentiary
hearing is constitutionally compelled at any time that there is
‘substantial evidence’ that the defendant may be mentally
incompetent to stand trial.”). Factors to consider in ascertain-
ing a defendant’s competence include evidence of his irratio-
nal behavior, his demeanor at trial, and any prior medical
opinion on competence. See Drope, 420 U.S. at 180. “The
9834 MENDEZ v. KNOWLES
state trial and appellate courts’ findings that the evidence did
not require a competency hearing under Pate are findings of
fact to which [this court] must defer unless they are ‘unrea-
sonable’ within the meaning of 28 U.S.C. § 2254(d)(2).” Tor-
res, 223 F.3d at 1105.

Mendez contends that the evidence of his irrational behav-
ior at trial and his counsel’s request for an evidentiary hearing
created a “bona fide doubt” as to his competence and required
an evidentiary hearing. However, when compared with the
evidence determined in Drope and Pate to require an eviden-
tiary hearing, the evidence presented during Mendez’s trial
does not demonstrate that the California Court of Appeal was
unreasonable in determining that there was no doubt as to
Mendez’s competence.

In Pate, the defense called four witnesses who testified to
Robinson’s long history of disturbed behavior. 383 U.S. at
378. One witness, Robinson’s mother, testified that a brick
dropped on his head when he was seven or eight years old. Id.
The injury made him cross-eyed, gave him headaches, and
resulted in noticeably erratic behavior. Id. at 378-79. A wit-
ness testified that on one occasion, Robinson, foaming at the
mouth, “lost his mind,” thinking someone was about to shoot
him or come after him, and was hospitalized. Id. at 379. The
medical records from his hospitalization indicated that he
heard voices and saw things, and suggested the possibility that
he was schizophrenic. Id. at 380. Other witnesses testified to
the “daze” Robinson would be in from time to time. Id. at
380-81. Robinson had also previously shot and killed his son,
and attempted to kill himself. Id. at 381. After serving nearly
four years in prison for murdering his son, he was released
and soon thereafter killed the woman for whose murder he
was on trial. Id. at 381-82. When Robinson was arrested for
the charged crime, he was unaware of his identity and denied
knowing anything about the killing. Id. at 382. All four
defense witnesses expressed the opinion that Robinson was
insane. Id. at 383. The Supreme Court concluded that this evi-
 MENDEZ v. KNOWLES 9835
dence entitled Robinson to a hearing on the issue of his com-
petence to stand trial. Id. at 385.

In Drope, Drope’s wife testified at trial that he had partici-
pated with four other men in forcibly raping her. 420 U.S. at
165-66. She also testified that she had resumed living with
Drope after the incident on the advice of his psychiatrist. Id.
at 166. She testified that she had initially told Drope’s attor-
ney that she believed Drope needed psychiatric care and
related Drope’s behavior of rolling down the stairs when he
did not get his way. Id. She also testified that later, after talk-
ing with Drope’s psychiatrist, she was not convinced that
Drope was actually sick. Id. Later in the trial, Drope did not
appear in court because he had shot himself in the abdomen
earlier that morning. Id. at 166-67. The Supreme Court deter-
mined that this evidence created a sufficient doubt of Drope’s
competence and required further inquiry as to the question. Id.
at 180.

In arguing that the district court should have held a hearing
to determine his competence, Mendez puts great weight on
the conditions he placed on his acceptance of the state’s plea
agreement offer: (1) videotaped confirmation that his ten-year
old victim had been informed of the sentence Mendez was to
receive; and (2) official assurance that the school records of
that same victim would be purged of any reference to his
molestation. He argues that these requests demonstrated irra-
tional behavior that, when coupled with his counsel’s doubt
as to his competence, warranted an evidentiary hearing.
Drope and Pate do not support this conclusion, and Mendez
cites no clearly established Supreme Court precedent that
holds that a defendant’s rejection of a plea agreement, even
if unwise, constitutes substantial evidence that he may have
been incompetent. See Davis v. Woodford, 384 F.3d 628, 645
(9th Cir. 2004) (concluding that even though defendant was
“recalcitrant and acted in ways that were detrimental to his
case,” the trial judge was not faced with substantial evidence
of the defendant’s incompetence). Nor do the reasons prof-
9836 MENDEZ v. KNOWLES
fered by Mendez for the rejection of the plea—the inability of
the court and the prosecutor to accommodate his two requests
—necessarily provide evidence of irrational behavior on the
part of Mendez. As the California Court of Appeal deter-
mined, “[a] sex offender’s fascination with his victim does not
demonstrate that he is unable to understand the nature of the
criminal proceedings or rationally to assist counsel in the con-
duct of a defense.”

[12] As for the concern expressed by Mendez’s counsel
about Mendez’s competence, in Drope, the Supreme Court
determined that a lawyer’s representations concerning the
competence of his client should be considered, but empha-
sized that courts need not accept them without question. 420
U.S. at 177 n.13. Mendez’s argument also omits from the
“bona fide doubt” inquiry the finding of the court-appointed
expert that Mendez was competent to stand trial. Evaluating
Mendez’s rejection of the plea agreement offer, his counsel’s
expressed concerns about his competence, and the court-
appointed expert’s conclusion that he was competent, we con-
clude that Mendez has not made a substantial showing that the
trial court’s decision not to hold an evidentiary hearing to
determine Mendez’s competence resulted in the denial of a
constitutional right. See Davis, 384 F.3d at 645.

2

Mendez also argues that the trial court deprived him of his
state-created liberty interest in an evidentiary hearing to deter-
mine his competence to stand trial. The procedure California
established to determine when an evidentiary hearing is nec-
essary to ascertain a defendant’s competence is codified in
CPC § 1368.5 Mendez contends that because the trial court
5
CPC § 1368:
(a) If, during the pendency of an action and prior to judgment,
a doubt arises in the mind of the judge as to the mental compe-
 MENDEZ v. KNOWLES 9837
initially said that it would order an evidentiary hearing under
CPC § 1368 and then changed its mind and decided instead
to appoint an expert to assist it in determining whether an evi-
dentiary hearing under CPC § 1368 was warranted, Mendez
was deprived of his liberty interest in a hearing to determine
his competence. The California courts, however, have deter-
mined that the procedure followed by the trial court in
Mendez’s case—ordering a psychiatric examination—is
required if there is a reasonable possibility that the defendant
may be incompetent. People v. Campbell, 193 Cal. App. 3d
1653, 1663 (Cal. Ct. App. 1987) (“[I]f there is a reasonable
possibility, even if it does not rise to the level of substantial

tence of the defendant, he or she shall state that doubt in the
record and inquire of the attorney for the defendant whether, in
the opinion of the attorney, the defendant is mentally competent.
. . . At the request of the defendant or his or her counsel or upon
its own motion, the court shall recess the proceedings for as long
as may be reasonably necessary to permit counsel to confer with
the defendant and to form an opinion as to the mental compe-
tence of the defendant at that point in time.
(b) If counsel informs the court that he or she believes the
defendant is or may be mentally incompetent, the court shall
order that the question of the defendant’s mental competence is
to be determined in a hearing which is held pursuant to Sections
1368.1 and 1369. If counsel informs the court that he or she
believes the defendant is mentally competent, the court may nev-
ertheless order a hearing. Any hearing shall be held in the supe-
rior court.
(c) Except as provided in Section 1368.1, when an order for a
hearing into the present mental competence of the defendant has
been issued, all proceedings in the criminal prosecution shall be
suspended until the question of the present mental competence of
the defendant has been determined.
If a jury has been impaneled and sworn to try the defendant, the
jury shall be discharged only if it appears to the court that undue
hardship to the jurors would result if the jury is retained on call.
If the defendant is declared mentally incompetent, the jury shall
be discharged.
9838 MENDEZ v. KNOWLES
evidence, that the defendant is unable to understand the pro-
ceedings or assist in his defense, the trial court must order a
psychiatric examination before deciding there is no need for
a section 1368 hearing.”). The state trial court followed the
state-created procedure for ascertaining whether it had doubt
as to Mendez’s competence under CPC § 1368. We hold,
therefore, that Mendez has not made a substantial showing
that the trial court’s decision not to hold an evidentiary hear-
ing to determine Mendez’s competence resulted in the viola-
tion of his due process rights, and decline to expand the
Certificate of Appealability to consider the merits of this
issue.

IV

In conclusion, we reject the Warden’s argument that the
district court abused its discretion by granting Mendez’s
motion for an extension of time to file his notice of appeal.
On the merits of Mendez’s appeal, we uphold Mendez’s con-
viction, concluding that it is absolutely certain that the jury
found beyond a reasonable doubt that Mendez was guilty of
the charged offenses and we decline to expand the Certificate
of Appealability to consider Mendez’s due process claim that
the trial court was required to hold an evidentiary hearing to
determine his competence.

AFFIRMED.