Lamarque

MEMORANDUM *

California state prisoner Sang Lee appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm, in part, reverse, in part and remand with instructions to conditionally grant the writ of habeas corpus.

The district court granted the certificate of appealability (“COA”) on Lee’s constitutional challenge to California Evidence Code § 1108, and we broadened the COA to include a challenge to the jury instructions. California Evidence Code § 1108 withstands Lee’s due process, equal protection, and ex post facto challenges. These claims are affirmed.

Lee also contends that California Jury Instructions (CALJIC) §§ 2.50.01 and 2.50.1, as given in his case, violate due process because they impermissibly lower the burden of proof. We agree. Due process requires that the prosecution prove every element of the charged criminal offense beyond a reasonable doubt. See Gibson v. Ortiz, 387 F.3d 812, 820 (9th Cir.2004) (citing In re Winship, 397 U.S. 358, 364 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970)). In Gibson , we held that the version of CALJIC 2.50.01 3 at issue in this case, violated…