FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VICTORINO LEMOS MEJIA, 

Petitioner-Appellant, No. 06-16460

v. D.C. No. 

SILVIA GARCIA; DARREL G. ADAMS;

CV-03-05489-OWW

JEANNE S. WOODFORD, OPINION

Respondents-Appellees. 

Appeal from the United States District Court

for the Eastern District of California

Oliver W. Wanger, District Judge, Presiding

Argued and Submitted

April 14, 2008—San Francisco, California

Filed July 25, 2008

Before: Ronald M. Gould, Richard R. Clifton, and

N. Randy Smith, Circuit Judges.

Opinion by Judge Gould

9313
COUNSEL

Suzanne A. Luban, Oakland, California, for the petitionerappellant. 

MEJIA v. GARCIA 9315
Edmund G. Brown Jr., Attorney General of the State of California, Dane R. Gillette, Chief Assistant Attorney General,

Michael P. Farrell, Senior Assistant Attorney General, Brian

G. Smiley, Supervising Deputy Attorney General, and Justain

P. Riley, Deputy Attorney General, Sacramento, California,

for the respondents-appellees.

OPINION

GOULD, Circuit Judge: 

Victorino Lemos Mejia (“Mejia”) appeals the district

court’s denial of his petition for a writ of habeas corpus with

respect to California state convictions for two counts of kidnapping, two counts of assault with a firearm, and one count

of assault with a deadly weapon. We address: 1) whether the

jury instructions read at Mejia’s trial violated Mejia’s due

process rights under In re Winship, 397 U.S. 358 (1970), with

respect to the kidnapping and assault convictions; and 2)

whether the admission of evidence of prior uncharged sexual

offenses against Mejia’s daughter violated clearly established

United States Supreme Court precedent. We have jurisdiction

pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm. We

conclude that the jury instructions did not violate Mejia’s

rights under Winship with respect to the kidnapping and

assault convictions and that admission of the uncharged sexual offenses did not violate clearly established Supreme Court

precedent. 

I

The facts concerning the horrific conduct for which Mejia

was convicted are not difficult to grasp. In June of 1999, a

California jury convicted Mejia of five counts of rape by force

of fear, two counts of kidnapping, two counts of assault with

a firearm, and one count of assault with a deadly weapon.1

1This summary of facts comes largely from the magistrate judge’s findings and recommendations, which, in turn, were taken from the California

9316 MEJIA v. GARCIA
The allegations that underpin these convictions are more than

unpleasant: In the summer of 1989, at the age of 18, the sister

of Mejia’s wife came to the United States to work as a babysitter for the Mejia family. After Mejia made arrangements to

smuggle the sister, Maria, across the United States border

with Mexico, Mejia and two of his young children met Maria

in Los Angeles. Together, they took a bus to the county in

which the Mejias lived, where Mejia brought Maria and the

children to a motel. 

From here matters degenerated quickly for Maria. When

the children were asleep, the first alleged sexual assaults took

place: Mejia put a knife to Maria’s neck and told Maria that

he wanted to have sexual intercourse with her. Maria pushed,

kicked and tried to defend herself, telling Mejia that she did

not want to have intercourse. While still holding the knife,

Mejia tore off Maria’s clothing and forced her to have sexual

intercourse with him twice. For the two incidents of intercourse, Mejia was later charged with counts 1 and 2, each for

forcible rape with an accompanying special allegation that

Mejia used a deadly weapon, namely, a knife, to commit the

offense. For his use of the knife, Mejia was also charged with

count 3, assault with a deadly weapon. 

Mejia told Maria that there was nothing she could do about

being raped because no one would help her. He warned Maria

not to tell her sister and his wife, Soledad, about what had

happened in the motel, and Maria at first obeyed, fearing

Mejia, but eventually told Soledad about the assaults. 

When Mejia discovered this, he forced both women to get

into his truck at gunpoint and drove them to an orange grove.

Court of Appeal opinion. The magistrate judge found the summary to be

a correct and fair summary of the facts. A state court’s factual determinations must be presumed correct, and a reviewing federal court must accept

all factual findings that the state court makes, unless the petitioner can

rebut “the presumption of correctness by clear and convincing evidence.”

28 U.S.C. § 2254(e)(1). The record supports this summary of the facts. 

MEJIA v. GARCIA 9317
He ordered the women out of the truck and told them to walk

to a field at gunpoint, threatening to kill them both. Mejia

twice fired the gun at the women, once off to the side and

once near their feet, and at some point put the gun to Soledad’s head. He ordered Soledad to start walking so that he

could shoot her in the back, and when Soledad complied,

Mejia pointed the gun at Soledad and threatened to shoot her

unless Maria agreed to have sexual intercourse with him.

Maria agreed, afraid that Mejia might kill her sister. Mejia

warned that he would kill Maria if she ever reported him to

anyone. For his use of the firearm at the orange grove, Mejia

was later charged with counts 4 and 5, assault with a firearm

against Maria and Soledad, respectively. For the entire incident, Mejia was charged with counts 6 and 7, kidnapping

Maria and Soledad, respectively, with a special allegation of

the use of a firearm—a .25 caliber handgun. 

After the three returned home, Mejia got on top of Maria

and grabbed and touched her. Maria tried to push Mejia away,

but she thought he had a gun, and he reminded her of her

promise to have sex with him. Maria replied that she had

made the promise to save Soledad’s life. Mejia then forced

Maria to have sexual intercourse with him, which later constituted count 8 against Mejia, with a special allegation that he

used the .25 caliber handgun in committing the offense. 

Later in the summer, after Maria unsuccessfully tried to

lock herself in Mejia’s car, Mejia raped her inside the family’s empty residence. This would comprise count 11, forcible

rape. Maria testified that over the three months that she lived

at the house, Mejia came into the living room and raped her

roughly twenty to thirty times. On one occasion, Soledad

came into the living room and told Mejia to go back to his

bedroom; this formed the basis for count 12. When Soledad

and Mejia were back in their bedroom, Maria could hear

Mejia beating Soledad. 

Maria eventually escaped the house in October of 1989.

Shortly thereafter, while staying with an acquaintance, Maria

9318 MEJIA v. GARCIA
reported Mejia to the police, who began an investigation. On

January 30, 1990, Mejia was charged in Tulare County Superior Court with the twelve counts for which he was ultimately

prosecuted, but he was not caught until nearly a decade later.

While the Mejia family was in Oregon in the early 1990s,

Mejia’s teenaged daughter, Norma, who was aware that the

police were looking for her father, telephoned her former high

school counselor in California and gave the counselor Mejia’s

location in Oregon. The counselor called the police. When

Soledad found out about the call, she told Mejia, who then

moved the family to Mexico. Around this time, Norma told

Soledad that Mejia had been sexually abusing her. 

In February of 1999, law enforcement caught up with Mejia

and brought him back to California. In a police interview,

Soledad, who had denied wrongdoing by Mejia when the

police first investigated in the early 1990s, now said that she

was afraid of Mejia and feared for her family, that she had

lied earlier when she had denied knowledge of wrongdoing,

and that Mejia had abused Maria. When interviewed, Norma

also confirmed that Maria had been abused.2

At trial Soledad supported Maria’s allegations: Soledad testified that Maria had told her about two weeks after coming

to live with them that Mejia was abusing her; she confirmed

Maria’s account of the orange grove incident and Mejia’s

threats to kill the two women; she said that she had heard

Mejia in the living room with Maria on occasion and had

heard Maria tell Mejia to get off of her; and she seconded

Maria’s account of running away. Soledad repeated that when

police first came to question her, she had lied, denying that

Mejia had ever raped Maria or assaulted either of them,

although she had given the police officer Mejia’s gun, which

2Norma had already told police of her impression that Mejia had sexually assaulted Maria in 1990 when the police investigated. 

MEJIA v. GARCIA 9319
she had hidden in her purse, and had told them where Mejia

might be located. 

The trial court admitted evidence of Mejia’s acts of alleged

uncharged sexual misconduct against Norma over defense

objection, pursuant to California Evidence Code §§ 1108 and

352, which allow such evidence to be introduced so long as

its probative value is not substantially outweighed by resulting prejudice. The trial court determined that the evidence’s

probative value outweighed its prejudicial effects. Norma then

testified about previous incidents in which she alleged that

Mejia had sexually abused her. 

Norma told the jury that when she was about 15 years old,

an investigator came to the village where her family was staying in Mexico. Mejia, thinking the investigator was looking

for him, fled with the children to another village and hid in

a hole in the ground. Norma claimed that, while they were

hiding in the hole, Mejia told Norma that she was “going to

lend him [her] private parts,” and began touching her genital

area. Norma stated that when they left the hole and went to

a house for the night, Mejia took out his gun, placed it under

his head and raped her. He later told her that it was her punishment for having called the police. After that, she testified,

he raped her almost every night and at some point beat her

with ropes. 

Norma said that she eventually told her grandmother about

the assaults, after which Mejia raped Norma again, telling her

that he was raping her because she had told her grandmother

about him. Norma also said that Mejia told her that if she ever

told the police, he would kill her and her mother and throw

their bodies onto the train tracks. Norma stated that Mejia

continued to rape her until she moved out of the house in

1994. 

At his trial, Mejia denied all allegations against him. He

admitted to a relationship with Maria but claimed that it was

9320 MEJIA v. GARCIA
consensual and that he had never owned a handgun. He

denied ever having molested Norma. Two of Mejia’s children

supported his version of events in their testimony. 

The jury convicted Mejia of the five counts of rape by force

of fear, the two counts of kidnapping, the two counts of

assault with a firearm, and one count of assault with a deadly

weapon. The jury acquitted him of count 9, penetration by a

foreign object, and count 10, forcible oral copulation. It also

found “not true” the special allegation that the count 8 forcible rape charge had been committed with a deadly weapon.

On direct appeal the California Court of Appeal modified

Mejia’s sentence but sustained the convictions. The California

Supreme Court denied Mejia’s petition for review in May of

2002. Mejia filed the present petition for writ of habeas corpus in early 2003. Before the district court issued its ruling,

the government conceded that grant of the writ was appropriate as to the rape convictions under our precedent of Gibson

v. Ortiz, 387 F.3d 812 (9th Cir. 2004), so only the remaining

convictions were contested. 

The district court adopted the magistrate judge’s recommendation to reject Mejia’s argument that introduction of

Norma’s testimony concerning uncharged sexual offenses

violated his clearly established federal due process rights.

However, the district court declined to adopt the magistrate

judge’s recommendation that Gibson v. Ortiz mandated a

grant of the writ on all counts. Instead, the district court

granted the writ only as to the five rape counts, determining

that the jury instructions did not violate Mejia’s clearly established rights as to the remaining counts. Mejia now appeals

the partial denial of his habeas petition. 

II

We review de novo a district court’s decision to grant or

deny a petition for habeas corpus under 28 U.S.C. § 2254.

MEJIA v. GARCIA 9321
Benn v. Lambert, 283 F.3d 1040, 1051 (9th Cir. 2002). We

review the district court’s findings of fact for clear error. Hendricks v. Calderon, 70 F.3d 1032, 1036 (9th Cir. 1995), cert.

denied, 517 U.S. 1111 (1996). When reviewing an allegation

that a jury instruction is constitutionally infirm, if the instruction is ambiguous we must inquire whether there is a reasonable likelihood that the jury applied the challenged instruction

in a way that violates the Constitution. See Estelle v.

McGuire, 502 U.S. 62, 72 (1991). If the error is structural,

however, the error is not subject to harmless error review. See

Sullivan v. Louisiana, 508 U.S. 275, 280-82 (1993). 

Because Mejia filed his habeas petition after April 24,

1996, the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), 28 U.S.C. § 2254, governs this court’s

review. Under 28 U.S.C. § 2254(d), we may not grant habeas

relief for a claim adjudicated on the merits in state court

unless the state’s decision is contrary to or an unreasonable

application of clearly established federal law, as determined

by the United States Supreme Court, or is based on an unreasonable determination of the facts in light of the evidence

presented to the state courts. A state court decision is “contrary to” clearly established Supreme Court precedent if the

state court “applies a rule that contradicts the governing law

set forth” in Supreme Court decisions or “confronts a set of

facts that are materially indistinguishable from a [Supreme

Court] decision . . . and nevertheless arrives at a result different from [Supreme Court] precedent.” Williams v. Taylor, 529

U.S. 362, 405-06 (2000). It is an “unreasonable application”

of clearly established Supreme Court precedent if it “correctly

identifies the governing legal rule but applies it [objectively]

unreasonably to the facts” of the case. Id. at 407-08, 410-11.

We review the last reasoned state court decision to determine

if it violated clearly established Supreme Court law. See Ylst

v. Nunnemaker, 501 U.S. 797, 803 (1991). Although section

2254(d) mandates that only Supreme Court precedential holdings clearly establish a right, circuit law may be “persuasive

authority” on the question of whether a state court’s determi9322 MEJIA v. GARCIA
nation was an unreasonable application of the Supreme

Court’s precedent. Duhaime v. Ducharme, 200 F.3d 597, 600-

01 (9th Cir. 1999); Clark v. Murphy, 331 F.3d 1062, 1069

(9th Cir. 2003).

III

[1] In Winship, the United States Supreme Court held that

the Due Process Clause of the Fourteenth Amendment

requires that the prosecution prove beyond a reasonable doubt

every fact necessary to establish each element of the crimes

charged. 397 U.S. at 364. A defendant is deprived of due process when the jury is not properly instructed that the defendant is presumed innocent until proven guilty beyond a

reasonable doubt. Middleton v. McNeil, 541 U.S. 433, 437

(2004). In other words, “the jury verdict required by the Sixth

Amendment is a jury verdict of guilty beyond a reasonable

doubt.” Sullivan, 508 U.S. at 278. This requirement of proof

of guilt beyond reasonable doubt is one of the foundations of

our system of criminal procedure. The Constitution does not

require the use of any particular words in advising the jury of

the burden of proof as long as “taken as a whole, the instructions . . . convey the concept of reasonable doubt to the jury.”

Victor v. Nebraska, 511 U.S. 1, 5 (1994). 

Mejia argues that the jury instructions given at his trial rendered each of his convictions a violation of the Winship principle requiring proof beyond a reasonable doubt. The jury

instructions3 at issue are:

CALJIC No. 2.50.01, which stated the following—

Evidence has been introduced for the purpose of showing that the defendant engaged

3We presume that the jury followed these instructions. See Richardson

v. Marsh, 481 U.S. 200, 206 (1987) (noting the “almost invariable

assumption of the law that jurors follow their instructions”). 

MEJIA v. GARCIA 9323
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 the state or of the United States that

involve any of the following: Any conduct

made criminal by the Penal Code Section

288 or 261(a)(2). The elements of these

crimes are set forth elsewhere in these

instructions. 

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. You must

not consider this evidence for any other

purpose.

and CALJIC No. 2.50.1, which provided— 

Within the meaning of the preceding section, the prosecution has the burden of

proving by a preponderance of the evidence

that a defendant committed a sexual offense

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 sexual offense[s]. 

As indicated above, the government does not contest

Mejia’s argument with respect to the rape convictions; it has

9324 MEJIA v. GARCIA
conceded that Gibson v. Ortiz is materially indistinguishable

and therefore mandates a grant of Mejia’s habeas petition for

the forcible rape charges. However, the parties continue to

dispute, and dispute vigorously, Gibson’s applicability to the

remaining charges. 

In Gibson, the trial judge had allowed evidence of prior

uncharged sexual offenses in the defendant’s trial for the

charged sexual offenses, and had read jury instructions virtually identical to those given at Mejia’s trial. 387 F.3d at 817-

18. We affirmed the district court’s grant of the petition for

a writ of habeas corpus in light of the infirm instructions. Id.

at 814. CALJIC 2.50.1, we reasoned, ascribed a lesser burden

of proof, namely, preponderance of the evidence, for previous

sexual offenses. Id. at 822. We held that CALJIC 2.50.1’s

preponderance of the evidence standard, in conjunction with

CALJIC 2.50.01, which permitted the jury to infer that the

defendant had committed the charged crime if it found “that

the defendant committed a prior sexual offense,” violated the

Winship requirement of proof beyond a reasonable doubt of

every fact necessary to constitute the crime charged. Id.

Moreover, we concluded that, despite the general “beyond a

reasonable doubt” instruction given elsewhere, the error

resulting from CALJIC 2.50.1 and 2.50.01 was structural

within the meaning of Sullivan: “When a court gives the jury

instructions that allow it to convict a defendant on an impermissible legal theory, as well as a theory that meets constitutional requirements, the unconstitutionality of any of the

theories requires that the conviction be set aside.” Gibson,

387 F.3d at 825 (citation and quotation marks omitted). 

Mejia argues that the structural error at play in Gibson and

in Mejia’s own rape convictions applies equally to Mejia’s

assault and kidnapping convictions. In support, he cites language from CALJIC 2.50.01, with emphasis on the italicized

phrase: “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

MEJIA v. GARCIA 9325
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.” CALJIC 2.50.01 (emphasis added). Mejia, in

essence, argues: the italicized phrase does not specify or limit

itself to “the sexual crime or crimes of which he is accused,”

thereby permitting the jury to conclude that it may find Mejia

guilty of all of the charged crimes if it finds (by only a preponderance of the evidence) that he committed past

uncharged sexual offenses. Mejia contends that this instruction thereby renders his assault and kidnapping convictions

similarly in violation of Winship and that, under Sullivan, this

error is structural and impervious to harmless error analysis

because the misdescription of the burden of proof vitiates the

jury’s findings. See Sullivan, 508 U.S. at 281. 

The government counters that this reading of the italicized

phrase is “unreasonable” in the context of the surrounding

text. The government contends that the instruction as a whole

addresses past and current sexual offenses and the permissibility of inferring from past sexual offenses a propensity to

commit sexual offenses; the government argues that the jury

would have read the passage, “the crime or crimes of which

he is accused,” as referring only to sexual crimes, not the separate crimes of assault and kidnapping. The government urges

application of harmless error analysis, arguing that the jury

instruction is ambiguous and therefore, under Estelle, it violates due process only if there is a reasonable likelihood that

the jury applied the challenged instruction in an unconstitutional manner. 502 U.S. at 72. 

[2] We agree with the government’s position that CALJIC

2.50.01 is ambiguous as to what its implications were for the

non-sexual offense charges. Until the phrase in italics above,

CALJIC 2.50.01 explicitly limits itself to inferences permitted

only with respect to sexual crimes. It states: “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

9326 MEJIA v. GARCIA
to commit the same or similar type sexual offenses.” CALJIC

2.50.01 (emphasis added). It is illogical to read the next sentence, then, to suggest that from this disposition to commit the

same or similar type sexual offenses the jury may infer that

the defendant “was likely to commit and did commit” nonsexual offenses. While Mejia argues that the controversial

passage of CALJIC 2.50.01 could be said, when read literally,

to allow convictions on all counts, not just the sexual

offenses, based only on a preponderance of the evidence, in

our view the more logical and plausible reading of the instruction is that it allows for convictions only with respect to the

charged sexual offenses. That reasonable minds can differ in

their reading of whether the instruction allows for conviction

on the non-sexual offenses based on a burden of proof other

than beyond a reasonable doubt underscores the instruction’s

ambiguity.4 Our holding in Gibson that the instructional error

there was structural with respect to the sexual offense convictions does not extend to implicate Mejia’s convictions for the

non-sexual offenses. 

[3] In light of our conclusion that the contested jury instructions are ambiguous as to their implications for Mejia’s nonsexual offense charges, we are left to determine “whether

there is a reasonable likelihood that the jury has applied the

challenged instruction in a way that violates the Constitution.”

See Estelle, 502 U.S. at 72 (quotation marks omitted). We

may not judge the instruction in artificial isolation but must

consider it in the context of the instructions and trial record

as a whole. Id. Bearing in mind the Supreme Court’s admonition that it has “defined the category of infractions that violate

‘fundamental fairness’ very narrowly[,]” id. (quoting Dowling

4Mejia’s emphasis on the relatively interwoven nature of the sexual and

non-sexual offenses in his case does not alter our analysis. The interrelatedness of the facts of the charged offenses renders it no less illogical to

conclude that the jury was likely to use the belief that Mejia had a disposition to commit sexual offenses to find him guilty of assault with a deadly

weapon and kidnapping. 

MEJIA v. GARCIA 9327
v. United States, 493 U.S. 342, 352 (1990)), we hold that

there is not a reasonable likelihood that the jury applied the

challenged instruction in an unconstitutional way. 

As we have indicated, when read in context, the most likely

interpretation of the infirm jury instructions is that they

allowed the impermissible inference only as to the sexual

offense charges, not the remaining charges. The instructions

provided that if the jury found that Mejia committed a prior

sexual offense, it could infer that he had a disposition to commit the same or similar type sexual offenses. Then, if the jury

found that Mejia had this disposition, it was permitted “to

infer that he was likely to commit and did commit the crime

or crimes of which he is accused.” It would be unreasonable

to conclude that, from a determination that Mejia had a disposition to commit the same or similar sexual offenses, the jury

would therefore conclude that Mejia was likely to commit and

therefore did commit the kidnapping and assault crimes. Our

conclusion is reinforced by the facts that: 1) there was no suggestion at trial that the prior misconduct evidence should be

used to prove the kidnapping and assault charges; and 2) the

jury was separately instructed on the kidnapping and assault

charges to find that the facts were true beyond a reasonable

doubt. Moreover, in addition to rejecting two of the sexual

offense charges, the jury acquitted Mejia of one of the firearm

special allegations, suggesting that the jury did not use the

uncharged conduct to find Mejia guilty of the non-sexual

offense allegations in contravention of the Winship beyond a

reasonable doubt requirement. We therefore hold that the

infirm jury instructions did not infuse the trial with unfairness

so as to deny Mejia due process of law with respect to the

assault and kidnapping charges. We conclude that there is not

a reasonable likelihood that the jury applied the challenged

instructions in a way that violates the Constitution.

IV

Mejia next contends that admission of Norma’s testimony

was impermissible propensity evidence that violated his

9328 MEJIA v. GARCIA
clearly established due process rights. Our precedent squarely

forecloses this argument. In Alberni v. McDaniel, 458 F.3d

860 (9th Cir. 2006), cert. denied, 127 S. Ct. 1834 (2007), we

reviewed a post-AEDPA habeas petition in which the petitioner argued that admission of propensity evidence (in his

case evidence of past violent actions in his second-degree

murder case) at his trial violated clearly established due process jurisprudence. Id. at 862-63. We determined that admission of the propensity evidence was not contrary to clearly

established law. Id. at 863-67. Referring to a footnote at the

conclusion of the Estelle opinion, stating “[b]ecause we need

not reach the issue, we express no opinion on whether a state

law would violate the Due Process Clause if it permitted the

use of ‘prior crimes’ evidence to show propensity to commit

a charged crime[,]” 502 U.S. at 75 n.5, we held that the

Supreme Court had “expressly reserved consideration of the

issue at hand in Estelle.” Alberni, 458 F.3d at 866. Accordingly, we concluded that the state court had not acted objectively unreasonably in determining that the propensity

evidence introduced against the defendant did not violate his

due process. Id. at 866. 

[4] Mejia can point to no Supreme Court precedent establishing that admission of propensity evidence, as here, to lend

credibility to a sex victim’s allegations, and thus indisputably

relevant to the crimes charged, is unconstitutional. We cannot

say that the California Court of Appeal decision was contrary

to clearly established Supreme Court precedent. 

[5] Mejia next suggests that admission of the propensity

evidence was an unreasonable application of general due process principles, if not contrary to clearly established law. He

cites Loper v. Beto, 405 U.S. 473 (1972), in which the

Supreme Court held that the introduction of uncounseled convictions, in violation of Gideon v. Wainwright, 372 U.S. 335

(1963), to impeach the defendant’s credibility violated due

process. Loper, 405 U.S. at 483. Mejia invokes the following

passage from Loper: “If the accused is forced to admit that he

MEJIA v. GARCIA 9329
has a ‘record’ of past convictions, particularly if they are for

crimes similar to the one on trial, the danger is obvious that

the jury, despite instructions, will give more heed to the past

convictions as evidence that the accused is the kind of man

who would commit the crime on charge, or even that he ought

to be put away without too much concern with present guilt,

than they will to its legitimate bearing on credibility.” Id. at

482 n. 11. 

Mejia contends that the use of an uncounseled conviction

to impeach the defendant’s testimony violates due process

because the jurors may infer propensity and seek to punish the

accused for the prior offenses. From this he infers that surely

introduction of conduct for which the defendant has not even

been charged should violate due process. We think that appellant places more weight on Loper than it can bear. The Loper

holding was grounded in the importance of the right to counsel and the Supreme Court’s desire to avoid diluting the Gideon holding by allowing convictions that violate Gideon later

to prejudice a defendant. See id. at 481 (“To permit a conviction obtained in violation of Gideon v. Wainwright to be used

against a person either to support guilt or enhance punishment

for another offense . . . is to erode the principle of that case.

Worse yet, since the defect in the prior conviction was denial

of the right to counsel, the accused in effect suffers anew from

the deprivation of that . . . right.” (quotation omitted)). 

While allowing an uncharged offense might sound more

egregious than allowing an uncounseled conviction, the

United States Supreme Court has never established the principle that introduction of evidence of uncharged offenses necessarily must offend due process. This case, moreover,

demonstrates a key difference between the introduction of

evidence of an uncounseled conviction and introduction of

evidence of uncharged offenses: Mejia, unlike the Loper

defendant, did have counsel to defend him against the prior

allegations, and specifically to cross-examine and mount a

vigorous defense against the alleged prior victim, rendering

9330 MEJIA v. GARCIA
the Loper principle inapposite. We reject Mejia’s contention

that the California Court of Appeal’s decision concerning the

propensity evidence was an unreasonable application of

Supreme Court law.5 The introduction of this evidence in the

total context of this case did not render the trial fundamentally

unfair. 

In sum, the district court correctly determined that the

infirm jury instructions given at Mejia’s trial did not render

Mejia’s assault and kidnapping convictions in violation of

clearly established law, and the district court correctly concluded that admission of the evidence of prior uncharged sexual offenses did not violate clearly established law concerning

due process as established by the Supreme Court. 

AFFIRMED.

5Our holding in United States v. LeMay, 260 F.3d 1018 (9th Cir. 2001),

supports our conclusion that admission of the propensity evidence did not

violate Mejia’s due process rights. In LeMay, on direct appeal rather than

collateral review, we upheld introduction of evidence under Federal Rule

of Evidence 414—which is roughly analogous to California Evidence

Rule 1108, allowing former acts evidence with respect to allegations of

child molestation—as being consistent with due process requirements. Id.

at 1022. We noted that the Rule 414 evidence must pass the requirements

of Rules 402 and 403, id. at 1026-27, the federal analogs to California Evidence Rule 352 under which Norma’s testimony was admitted. We reasoned that due process requires that admission of prejudicial evidence not

render a trial fundamentally unfair, which Rule 402, ensuring relevance,

and Rule 403, guarding against overly prejudicial evidence, together guarantee. Id. California Evidence Rule 352 establishes a similar threshold for

the propensity evidence introduced at Mejia’s trial, suggesting that under

LeMay, Rule 352, like Federal Rules 402 and 403, safeguards due process

and protected Mejia’s trial from fundamental unfairness. 

MEJIA v. GARCIA 9331