556 F.3d 757 (9th Cir. 2009), 06-15153, Mendez v. Knowles

Docket Nº:06-15153.
Citation:556 F.3d 757
Party Name:Michael MENDEZ, Petitioner-Appellant, v. Mike KNOWLES,[*] Warden, Respondent-Appellee.
Case Date:February 10, 2009
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 757

556 F.3d 757 (9th Cir. 2009)

Michael MENDEZ, Petitioner-Appellant,


Mike KNOWLES,[*] Warden, Respondent-Appellee.

No. 06-15153.

United States Court of Appeals, Ninth Circuit.

February 10, 2009

Argued and Submitted April 14, 2008.

Page 758

[Copyrighted Material Omitted]

Page 759

[Copyrighted Material Omitted]

Page 760

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

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

Appeal from the United States District Court for the Northern District of California, William H. Alsup, District Judge, Presiding. D.C. No. CV-03-00022-WHA.




The opinion in the above-captioned matter filed on August 1, 2008, and published at 535 F.3d 973, is WITHDRAWN. The superseding opinion shall be filed concurrently with this order. The pending petition for panel rehearing and rehearing en banc is dismissed as moot. The parties may file new petitions as to the amended opinion for rehearing and rehearing en banc in accordance with the Federal Rules of Appellate Procedure.


GOULD, Circuit Judge:

In our original opinion, filed August 1, 2008, we concluded that we were absolutely certain that the jury had not read the jury instructions to lessen the state's standard of proof. Mendez v. Knowles, 535 F.3d 973. In Hedgpeth v. Pulido, the Supreme Court held that this " absolute certainty" test was improper. Hedgpeth v. Pulido, __ U.S. __, 129 S.Ct. 530, 533, __ L.Ed.2d __ (2008). We now revisit our prior opinion. We remain absolutely certain the jury did not read the instructions to lower the burden of proof, and thus we conclude no instructional error occurred. See id. (describing absolute certainty test as likely a determination that no error occurred).

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,

Page 761

the prosecution introduced evidence of two prior convictions: (1) in 1989, Mendez pleaded guilty to sexual battery of a five-year-old boy in violation 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 preponderance of the evidence that Mendez had committed a prior sexual offense, it could infer that he was likely to commit 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.


On September 14, 1998, the State of California filed a complaint 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 selection 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 confirmation 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 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 " advise 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 presence 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

Page 762

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 earlier]." In response, the trial court stated that it would " suspend criminal proceedings pursuant to [California] Penal Code Section 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 suspending the proceedings at [that] time and ordering a hearing pursuant to that section and related sections," it would " appoint an expert in the matter to assist [it] in making that determination 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.

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 proceedings, 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 prosecution, ... 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 proceedings and would not order a CPC § 1368 hearing to ascertain 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 following 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 individual 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.

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 necessary element of the crime charged.

For the limited purpose for which you may consider such evidence, you must weigh it in the same manner 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 sexual offense, you may, but are

Page 763

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 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.

[ CALJIC 2.50.1: ]

Within the meaning of the preceding...

To continue reading