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Kenneth Harrell Schultz v. James E. Tilton

October 27, 2011

KENNETH HARRELL SCHULTZ, PETITIONER-APPELLANT,
v.
JAMES E. TILTON, SECRETARY OF CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, RESPONDENT-APPELLEE.



D.C. No. 8:07-cv-01071-RMT-JTL Appeal from the United States District Court for the Central District of California Robert M. Takasugi, District Judge, Presiding

Per curiam.

FOR PUBLICATION

OPINION

Submitted October 13, 2011*fn1 Pasadena, California

Before: Alfred T. Goodwin and Kim McLane Wardlaw, Circuit Judges, and William K. Sessions III, District Judge.*fn2

Opinion

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 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 district 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 established Federal law, as determined by the Supreme Court of the United States," or was "based on an unreasonable determination 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 prosecution presented evidence at trial of prior uncharged sexual misconduct 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 evidence 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 pursuant to the 2002 version of CALJIC No. 2.50.01. The CALJIC 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 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 ...


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