Due process "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. at 364. The Due Process Clause of the Fourteenth Amendment thus prohibits the State from using jury instructions that have the effect of relieving the State of that burden. Francis v. Franklin, 471 U.S. 307, 326 (1985); see Patterson v. Gomez, 223 F.3d 959, 962 (9th Cir. 2000) ("A jury instruction cannot relieve the state of the burden of proving beyond a reasonable doubt a crucial element of the criminal offense.").
In considering whether a challenged instruction violated due process the reviewing court must determine "'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution.'" Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Boyde v. California, 494 U.S. 370, 380 (1990).). "A 'reasonable likelihood' is lower than the 'more likely than not' standard but higher than a mere 'possibility.'" Polk v. Sandoval, 503 F.3d 903, 910 (9th Cir. 2007) (citing Boyde, 494 U.S. at 380).
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