FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH HARRELL SCHULTZ,
Petitioner-Appellant, No. 09-55998
v. D.C. No.
JAMES E. TILTON, Secretary of 8:07-cv-01071-
California Department of RMT-JTL
Corrections and Rehabilitation, OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Robert M. Takasugi, District Judge, Presiding
Submitted October 13, 2011*
Pasadena, California
Filed October 27, 2011
Before: Alfred T. Goodwin and Kim McLane Wardlaw,
Circuit Judges, and William K. Sessions III,
District Judge.**
Per Curiam Opinion
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable William K. Sessions III, U.S. District Judge for the
District of Vermont, sitting by designation.
19581
SCHULTZ v. TILTON 19583
COUNSEL
Jonathan P. Milberg, Appellate Associates, Pasadena, Califor-
nia, for the petitioner-appellant.
Matthew Mulford, Deputy Attorney General, San Diego, Cali-
fornia, for the respondent-appellee.
OPINION
PER CURIAM:
Kenneth Harrell Schultz appeals the district court’s denial
of his petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. The district court certified a single issue for
our review under § 2253(c)(3): whether the California trial
court’s use of California Jury Instruction, Criminal
(“CALJIC”) No. 2.50.01 (8th ed. 2002) violated Schultz’s
constitutional right to due process by allowing the jury to find
19584 SCHULTZ v. TILTON
him guilty of charged offenses based only on facts found by
a preponderance of the evidence.
We have jurisdiction under § 2253(a) and review the dis-
trict court’s denial of the petition de novo. Brown v. Horell,
644 F.3d 969, 978 (9th Cir. 2011). Under the Antiterrorism
and Effective Death Penalty Act, we may grant a writ of
habeas corpus only if the state court’s judgment was “contrary
to, or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court of
the United States,” or was “based on an unreasonable determi-
nation of the facts in light of the evidence in the State court
proceeding.” 28 U.S.C. § 2254(d). Because the decision of the
California Court of Appeal to reject Schultz’s constitutional
challenge to CALJIC No. 2.50.01 was not contrary to clearly
established Federal law, we affirm.
In 2004, Schultz was convicted of committing lewd acts
upon three children under the age of fourteen in violation of
California Penal Code § 288(a). In addition to evidence of the
charged conduct involving these three victims, the prosecu-
tion presented evidence at trial of prior uncharged sexual mis-
conduct by Schultz involving two other minors. The evidence
of this uncharged conduct was presented to demonstrate
Schultz’s propensity for committing sexual offenses pursuant
to California Evidence Code § 1108, which allows such evi-
dence to be introduced as long as its probative value is not
substantially outweighed by its prejudicial effect. See Cal.
Evid. Code § 352.
In light of the evidence concerning Schultz’s uncharged
sexual misconduct, the state trial court instructed the jury pur-
suant to the 2002 version of CALJIC No. 2.50.01. The CAL-
JIC No. 2.50.01 instruction given to Schultz’s jury provided:
Evidence has been introduced for the purpose of
showing that the defendant engaged in a sexual
SCHULTZ v. TILTON 19585
offense on one or more occasions other than that
charged in the case.
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 sexual
offenses.
If you find that the defendant had this disposition,
you may, but are not required to, infer that he was
likely to commit and did commit the crime or crimes
of which he is accused.
However, if you find by a preponderance of the evi-
dence that the defendant committed prior sexual
offenses, that is not sufficient by itself to prove
beyond a reasonable doubt that he committed the
charged crimes. If you determine an inference prop-
erly can be drawn from this evidence, this inference
is simply one item for you to consider, along with all
other evidence, in determining whether the defen-
dant has been proved guilty beyond a reasonable
doubt of the charged crime.
You must not consider this evidence for any other
purpose.
[1] Schultz contends that this instruction misstated the
prosecution’s burden of proof, allowing the jury to convict
him of the charged counts based on a preponderance of the
evidence in violation of his constitutional right to due process.
The Due Process Clause of the Fourteenth Amendment
requires the prosecution to prove every element charged in a
criminal offense beyond a reasonable doubt. In re Winship,
397 U.S. 358, 364 (1970). A jury instruction that reduces the
level of proof necessary for the Government to carry its bur-
den “is plainly inconsistent with the constitutionally rooted
presumption of innocence.” Cool v. United States, 409 U.S.
19586 SCHULTZ v. TILTON
100, 104 (1972). “All challenged instructions[, however,]
must be considered in light of all of the jury instructions and
the trial record as a whole.” Mendez v. Knowles, 556 F.3d
757, 768 (9th Cir. 2009) (citing Cupp v. Naughten, 414 U.S.
141, 146-47 (1973)).
[2] Schultz principally relies on our prior decision in Gib-
son v. Ortiz, 387 F.3d 812, 822 (9th Cir. 2004), overruled in
part by Hedgpeth v. Pulido, 555 U.S. 57, 60 (2008), as recog-
nized in Byrd v. Lewis, 566 F.3d 855, 866-67 (9th Cir. 2009).
Gibson examined an older version of CALJIC 2.50.01 from
1996 that contained language similar to the first three para-
graphs of the 2002 version but not the cautions included in the
fourth paragraph of the 2002 version. Compare id. at 817,
with CALJIC No. 2.50.01 (8th ed. 2002).1 The 1996 version
did not contain the instruction that “if you find by a prepon-
derance of the evidence that the defendant committed prior
sexual offenses, that is not sufficient by itself to prove beyond
a reasonable doubt that he committed the charged crimes.”
This language was added in a 1999 revision to the instruction.
CALJIC No. 2.50.01 (7th ed. 1999). The 1996 version exam-
ined in Gibson also did not contain the instruction that “[i]f
you determine an inference properly can be drawn from this
1
At the time of Gibson’s trial, CALJIC No. 2.50.01 read in relevant
part:
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 the case . . . .
If you find that the defendant committed a prior sexual offense,
you may, but are not required to, infer that the defendant had a
disposition to commit the same or similar type sexual offenses.
If you find that the defendant had this disposition, you may, but
are not required to, infer that he was likely to commit 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.
Gibson, 387 F.3d at 817.
SCHULTZ v. TILTON 19587
evidence, this inference is simply one item for you to con-
sider, along with all other evidence, in determining whether
the defendant has been proved guilty beyond a reasonable
doubt of the charged crime.” This language was added in the
2002 revision to the instruction. CALJIC No. 2.50.01 (8th ed.
2002).
Since the jury in Gibson had been initially instructed on the
correct burden of proof for the charged offenses, we did not
hold that the 1996 version of CALJIC No. 2.50.01 was by
itself unconstitutional. 387 F.3d at 822 (“Had the jury instruc-
tions ended with CALJIC No. 2.50.01, our inquiry would
have ended with a denial of Gibson’s petition.”). Because the
Gibson jury was subsequently instructed with the 1996 ver-
sion of CALJIC No. 2.50.1, however, we held that the instruc-
tions as a whole were “constitutionally infirm.” Id.
(discussing CALJIC No. 2.50.1 (6th ed. 1996) (“Within the
meaning of the preceding instructions the prosecution has the
burden of proving by a preponderance of the evidence that a
defendant committed sexual offenses and/or domestic vio-
lence other than those for which he is on trial.”)). Specifically,
we concluded that “the interplay of the two instructions
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 prepon-
derance of the evidence.” Id.
[3] Turning to the revised version of CALJIC No. 2.50.01
at issue here, the California Supreme Court in People v. Reli-
ford, 62 P.3d 601, 606 (Cal. 2003), held that the 1999 version
of the instruction does not violate due process, stating that
“we do not find it reasonably likely a jury could interpret the
instructions to authorize conviction of the charged offenses
based on a lowered standard of proof.” See also People v.
Falsetta, 986 P.2d 182, 194 (Cal. 1999) (rejecting a due pro-
cess challenge to Cal. Evid. Code § 1108 and stating that the
1999 version of CALJIC No. 2.50.01 “adequately sets forth
19588 SCHULTZ v. TILTON
the controlling principles under section 1108”). The Reliford
court further found that “no juror could reasonably interpret
the instructions to authorize conviction of a charged offense
based solely on proof of an uncharged sexual offense.” 62
P.3d at 606. Finally, the court stated in dictum that the 2002
revisions to CALJIC No. 2.50.01 further clarified the instruc-
tion, “provid[ing] additional guidance on the permissible use
of the other-acts evidence and remind[ing] the jury of the
standard of proof for a conviction of the charged offenses.”
Id. at 607. Citing Reliford, the California Court of Appeal
rejected Schultz’s constitutional challenge to the 2002 version
of CALJIC No. 2.50.01 used at his trial. People v. Schultz,
No. G034696, 2006 WL 636735, at *10 (Cal. Ct. App. March
15, 2006) (unpublished).
[4] We hold that the California Court of Appeal did not act
contrary to federal law in applying the analysis from Reliford
to uphold the 2002 version of CALJIC No. 2.50.01. In con-
trast with the instructions given in Gibson, the 2002 version
of CALJIC No. 2.50.01 in no way suggests that a jury could
reasonably convict a defendant for charged offenses based
merely on a preponderance of the evidence. Reflecting the
revisions made in both 1999 and 2002, the instruction given
to Schultz’s jury was unambiguous and made clear that
Schultz could be convicted only if the evidence as a whole
“proved [him] guilty beyond a reasonable doubt of the
charged crime.” Cf. Mendez, 556 F.3d at 770 (distinguishing
Gibson where “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”).
While noting that his jury was instructed as to the definition
of “preponderance of the evidence” pursuant to CALJIC
2.50.2, Schultz makes no argument that ambiguity as to the
burden of proof was created by instructions other than CAL-
JIC No. 2.50.01. Indeed, he makes only an indirect reference
to CALJIC 2.50.1, which was central to our decision in Gib-
son. See 387 F.3d at 822. This omission is likely because this
SCHULTZ v. TILTON 19589
instruction was also revised in 2002 to clearly state that “[i]f
you find that other crimes were committed by a preponder-
ance of the evidence, you are nevertheless cautioned and
reminded that before a defendant can be found guilty of any
crime charged in this trial, the evidence as a whole must per-
suade you beyond a reasonable doubt that the defendant is
guilty of that crime.” CALJIC No. 2.50.1 (8th ed. 2002). For
this reason as well, our holding in Gibson is not applicable to
the circumstances here.
AFFIRMED.