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CHAVARRIA v. HAMLET

United States District Court, Northern District of California


March 24, 2003

MARCUS DANIEL CHAVARRIA, PETITIONER,
v.
JIM HAMLET, RESPONDENT.

The opinion of the court was delivered by: Susan Illston, United States District Judge.

JUDGMENT

The petition for writ of habeas corpus is DENIED.

IT IS SO ORDERED AND ADJUDGED.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MARCUS DANIEL CHAVARRIA, No. C 01-2242 SI (pr) ORDER DENYING PETITION FOR Petitioner, WRIT OF HABEAS CORPUS v. JIM HAMLET,
Respondent.

INTRODUCTION

This matter is now before the court for consideration of the merits of Marcus Daniel Chavarrias pro se petition for writ of habeas corpus concerning his 1998 conviction. For the reasons discussed below, the petition will be denied.

BACKGROUND

A. Current Incident

This case involves an incident of domestic violence that followed other incidents of domestic violence by petitioner, Marcus Chavarria. The victim of the current offense — Chavarria's wife, Corinna Soto — changed her story between the day of the incident (when she reported to police that Chavarria had pushed her up against a stereo cabinet and shut a door on her foot when she tried to leave her apartment) and at trial (where she testified that she had stumbled accidentally and had accidentally opened the door on to her own foot). The followlng description of the crime is taken from the California Court of Appeal's opinion and reflects the contradictory nature of Soto's explanation of the evening's events:

In July 1997, [Corinna] Soto was living in Sunnyvale with her son and daughter, and defendant was living with his sister. On July 5, Soto agreed to allow defendant to come over the next day and spend some time with their son, Jesse. The following day, Soto left Jesse with Chavarria while she and her daughter went shopping.
When Soto arrived home around 6:00 p.m., defendant was still there. Soto started drinking wine and continued drinking all evening, consuming two or three bottles of wine. Defendant was not drinking. After Jesse went to bed, Soto and defendant began to argue. Soto criticized defendant for not being patient with Jesse, noting that it was because defendant had been away for a long time and "had just gotten out." She also complained about some things Jesse had told her that defendant had done while she was gone. First, defendant had searched through her room, looking for phone numbers and photographs of men Soto might have been with. Second, defendant had called her a tramp who had been "whoring around." Jesse also said that his father had gotten a woman's phone number from a magazine and had called her to ask her out on a date.
According to Soto, defendant listened calmly and then took Soto's glass of wine to the sink and poured it out. She became angry, walking over to the sink and hitting defendant in the chest, then slapping him on the face. Defendant did nothing to retaliate even though Soto was taunting him, laughing at him, and daring him to hit her back. He did not respond because he was afraid of her because "[l]ike I could get him in trouble." Defendant told Soto to stop it, and he grabbed her arms to keep her from hitting him. When defendant released Soto, she stumbled back on some furniture. Defendant did not push her, and Soto denied ever having said that he pushed her. She was off balance because she was drunk. Defendant told her he was going to call a cab and leave.
Soto went into the bedroom to call her upstairs neighbor, Marcela or Marisela Lozano. She heard defendant on the line ordering a cab and ran to the front door to keep him from leaving the apartment. She arrived at the door before defendant did, opened the door hurriedly over her foot, and injured herself. She fell to the floor in pain, having broken several toes and cut her foot. When she cried out, defendant picked her up and put her on the couch, bringing her an icepack for her foot. At that point, Soto insisted that defendant leave the apartment because she was afraid someone might have heard her yelling in pain and called the police. She assured defendant she would be alright, and he went outside to wait for his cab. Soto denied having called the police or having had a neighbor call the police.
Soto admitted she may have told a completely different story to the female police officer who interviewed her the night of the incident. This discrepancy between her testimony at trial and the police report she attributed to several factors. First, the officer did not listen to her story and took an angry tone with her. Second, Soto was in a great deal of pain due to her injured foot. Additionally, she was drunk. When asked if she told the truth to the officer, Soto said "yes and no," explaining that she just wanted the officer to leave so she could go to the hospital. Soto believed that the statements she did make were consistent with her testimony, but she acknowledged that she could not recall everything she might have said. However, she flatly denied having made various statements which the officer claimed she made. Soto accused the officer of lying and being disrespectful. Soto denied that the defendant caused the injury to her foot and denied telling the police officer that when she opened the door to escape from defendant, defendant slammed the door on her foot. Instead, Soto claimed that she told the officer that she had caused the injury herself.
Soto admitted that she had lied in 1993 to protect defendant but, she volunteered, "He did his time for that."
On cross-examination, Corinna Soto repeated that she was no longer in love with defendant, and claimed she had had a romantic relationship with someone else while defendant was in prison. She also explained again why defendant was afraid of her on July 6 — "[b]ecause he had just gotten out of prison and he knew that . . . I had power over him where I could, you know, intimidate him into hurting me, that I could just, boom, call the police and get him in trouble just like that." Soto explained that she enjoyed having that power over defendant "[b]ecause I was very angry . . . for him leaving me for five years for such a long time. It was a very lonely life waiting for somebody that's incarcerated., you know."
Next Soto repeated her claim that it was she, and not defendant, who was drinking on the evening of July 6. It was she who intentionally to provoke defendant into hitting her. And it was she who accidentally stumbled backwards into the stereo cabinet and bumped her head. Soto testified that she told police that defendant had pushed her because she hated him at that time. She wanted to get defendant in trouble because she was angry he had been away for so long in prison. That is why she told police that defendant had slammed the door on her foot. She also falsely told the police that defendant had called her a "drunken whore" and had followed her into the apartment.
On July 6, 1997, Sunnyvale Police Officer Kim Bianconi responded to a 911 call at 170 Pasito Terrace. As she arrived at apartment 822, she saw defendant leaving and she spoke with him briefly. He did not appear to be intoxicated. Bianconi then knocked on the apartment door and was let in by Soto. Soto appeared distraught and kept grabbing and rubbing her right foot. The foot looked red and swollen and had abrasions. There was also some bleeding, but not a lot. Bianconi asked Soto if she wanted an ambulance. Soto replied that she did not; she would get herself to the hospital later.
After talking to Soto for 10 or 15 minutes, Bianconi looked around the apartment and found an almost full bottle of wine in the bedroom from which about a glass of wine had been poured. Soto did not appear intoxicated and did not smell of alcohol. No other wine bottles or glasses were found in the kitchen area. In addition, no taxicabs came anywhere near the apartment while Bianconi was there.
Soto told Bianconi that defendant was her husband and had been for four years. However, when Bianconi asked if they were living together, Soto explained that for most of their marriage defendant had been "in prison for a prior incident involving her and that he was not currently living with her. . . ." Soto told the officer that the argument began when she learned from her son Jesse that defendant had called her a "fucking whore" and a "tramp." Soto also said that defendant was extremely jealous and had falsely accused her of sleeping with other men while he was in prison.
Soto tried to get away from defendant by going into her bedroom and pouring herself a glass of wine, but defendant followed her in. After he called her a "drunken whore," Soto took the glass of wine into the kitchen and poured it down the sink. Defendant kept following her around, and then he grabbed her hair. She tried to walk away, but he pushed her up against the stereo cabinet. Soto never told Bianconi that she had fallen back onto the cabinet by herself. After defendant pushed her into the stereo cabinet, Soto ran into her bedroom to call the police. When she picked up the phone, however, she was unable to complete the call because defendant had picked up the extension in the kitchen.
Soto decided to run out of the apartment and make the call from a neighbor's phone. As she was trying to get out, however, defendant reached the door and pushed it closed over her foot. The door opened inward and had about a quarter to a half an inch gap between the bottom of the floor and the carpet. The 911 call that was ultimately received came from Soto's neighbor's residence. . . .
The day after the incident, Detective Marculescu telephoned Soto to follow up on statements she had made to Officer Bianconi that appeared in the police report. Soto told Marculescu there had been an argument and when she tried to leave the apartment, defendant closed the door, accidentally hurting her foot in the process. Soto did not say she was intoxicated at the time of the incident, or that she had tried to get Defendant in trouble. Soto also did not say she had trouble communicating with Officer Bianconi or that Bianconi got the wrong story.
On July 10, 1997, Marculescu spoke to Soto in person. Again, Soto said nothing about being intoxicated, or about any misunderstanding with Bianconi
Cal. Ct. App. Opinion, pp. 5-10.

B. Prior Incidents

The prosecution introduced evidence of three prior incidents of domestic violence by Chavarria — two involving Chavarria's former wife, Dolores Chavarria, and one involving his current wife, Corinna Soto.

Dolores Chavarria was married to Chavarria from February 1987 until May 1991. They had a "rocky relationship," in which Chavarria abused her both physically and verbally. RT 150. In late 1986 or early 1987, Chavarria, who had been drinking, picked Dolores Chavarria up by the neck and held her in air with one hand, and put her down only when his parents arrived to intervene. In March 1991, Chavarria, who had been drinking, beat Dolores up, causing bruises all over her body.

Chavarrias's wife at the time of the trial, Soto, was also a victim of a prior incident of domestic violence. In 1993, before they were married, Soto and petitioner were driving to Santa Cruz over Highway 17, got into an argument, and pulled off to the side of the road. Soto tried to run away but Chavarria caught her, grabbed her by the hair, and pulled her back to his car. He then put his hands around Soto's neck and began choking her. A passing pickup truck, driven by Noah James, stopped to help. James' girlfriend, Tamara Blake, who had seen a man gripping a woman's neck with both hands and shaking her, asked Soto if she needed help. Soto ran toward the truck screaming, "[H]e's trying to kill me!" RT 104. She quickly climbed into the bed of the truck, where James had three to five other passengers, and asked them to get the license plate of Chavarria's car in case he caught up with them. Chavarria chased and repeatedly rammed his car into the pickup truck, which had driven away. The third or fourth time the truck was rammed, it spun out of control and rolled over, throwing all the occupants out onto the ground. James and his friends, none of whom was seriously injured, rolled their truck upright, drove to a friend's house, and called the police. After the crash, Chavarria picked Soto up out of a ditch and carried her to his car, saying he was going to take her to the hospital. Instead, Chavarria took her to his parents' home where his mother cleaned and bandaged her wounds. Later on, he took Soto to the hospital. Soto testified that although they had been living together before, he did not live with her on that date as he was staying in "like a halfway house" in Santa Clara. RT 188. Soto married Chavarria shortly after the incident, while he was in custody.

C. Defense Case

The defense presented evidence that Soto's upstairs neighbor, Marisela Lozano, went downstairs after the incident, at about 1:30 a.m., to talk to Soto. Soto told Lozano that she and Chavarria had been arguing, and that when Chavarria opened the door to leave the apartment, Soto tried to close it, and Chavarria pulled it open — smashing her toes. Soto did not say anything else about the argument, such as whether Chavarria pulled her hair. Soto did tell Lozano what she had told the police, and that Chavarria was being charged with domestic violence. It appeared to Lozano that Soto had been drinking. Lozano had seen Soto intoxicated on several occasions. Lozano said she was no longer friendly with Soto. Lozano was aware that Chavarria had been incarcerated for most of the time Soto lived in the apartment building. Cal. Ct. App. Opinion, p. 10.

Lozano often called 911 as a child, but, before this incident, never called as an adult. Lozano did not recall saying on the 911 tape "he's beating the crap out of her right now." RT 318. Lozano did acknowledge, however, that she told the dispatcher she did not want to give her name, because the perpetrator was "a parolee and I don't need those kinds of problems." RT 319-20. She could not explain why she said that but she insisted she was not afraid that Chavarria would find out that she had called 911. Cal. Ct. App. Opinion, p. 10.

D. Rebuttal Evidence

In rebuttal, there was testimony that detective Maculescu contacted Lozano by telephone on July 9, 1997 and during that conversation, which lasted less than five minutes, Lozano did not tell the detective the information she later testified to (i.e., that Soto had talked to her after the police left, and talked to her about her statement to the police, or that Soto appeared intoxicated on the day of the crime). There also was evidence that Lozano did not mention to a district attorney's investigator on February 13, 1998 that she had met Soto after the incident or that she believed Soto was intoxicated when the incident occurred. Cal. Ct. App. Opinion, p.11.

E. Procedural History of The Case

On March 3, 1998, a jury convicted petitioner of infliction of corporal injury on a spouse with a prior conviction for the same offense, battery causing serious bodily injury, attempted false imprisonment, and misdemeanor dissuading a witness. The jury found enhancements for intentional infliction of great bodily injury in connection with the first three offenses. The trial court found that Chavarria had 11 felony "strike" convictions, three five-year serious felony enhancements, and a one-year prison term enhancement. Chavarria was sentenced to a prison term of 45 years to life on May 29, 1998. The California Court of Appeal affirmed his conviction and the California Supreme Court denied his petition for review.

Chavarria then filed this action, seeking a federal writ of habeas corpus on June 7, 2001. His habeas petition raises nine claims: (1) he received ineffective assistance of counsel in violation of his rights under the Sixth Amendment to the U.S. Constitution, (2) the trial court erred in admitting evidence of prior acts of domestic violence in reliance on California Evidence Code § 1109 because that statute violated his rights under the Due Process, Equal Protection, and Ex Post Facto Clauses of the U.S. Constitution, (3) the trial court violated his right to due process under the Fourteenth Amendment when it refused to instruct the jury on the defense of accident, (4) the trial court violated his right to due process when it failed to give complete jury instructions on self-defense, and failed to properly define reasonable doubt to the jury, (5) the trial court violated his right to due process when it failed to properly define reasonable doubt in the jury instructions, (6) the trial court violated his right to due process when it admitted defense witness Lozano's statement to the 911 dispatch that Chavarria was "beating the crap out of her right now," (7) the trial court violated his right to due process when it allowed the jury to hear evidence regarding a stay-away order issued against Chavarria, (8) the trial court violated his right to due process when it refused to allow evidence that defense witness Lozano often called 911 as a child, and (9) the trial court violated his right to due process when it failed to instruct the jury on the "domestic violence" element of the California Penal Code § 12022.7(d) sentence enhancement allegation.

JURISDICTION AND VENUE

This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in Santa Clara County, California, which is located within this judicial district. 28 U.S.C. § 2241 (d).

STANDARD OF REVIEW

This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d); see Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000).*fn1

EXHAUSTION

Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254 (b), (c). The parties do not dispute that state court remedies were exhausted for the claims in the petition.

DISCUSSION

A. Ineffective Assistance of Counsel

Chavarria asserts that he received ineffective assistance of counsel because (a) his attorney permitted the jury to learn that Chavarria had not only a prior corporal injury conviction, but also eight convictions for assault with a deadly weapon, (b) his attorney failed to object to Soto's testimony that Chavarria was on parole, and (c) his attorney failed to elicit evidence that Soto had attacked Chavarria one week prior to the crimes charged.

1. State Court Decision

The California Court of Appeal rejected Chavarria's ineffective assistance claim The appellate court found that no prejudice flowed from counsel's failure to prevent the jury from learning about his eight convictions for assault with a deadly weapon. Cal. Ct. App. Opinion, p. 16. The trial court had already ruled that evidence of Chavarria's truck-ramming was admissible. Soto had testified about the incident, as did the driver of the truck and the girlfriend of the driver of the truck. "Each stated that there were several people in the back of the truck, though their estimates varied slightly (from three to five over and above Blake, James and Soto). When the jury examined the abstract of judgment, it listed eight convictions for `ADW w/ Automobile' and one for `Inflict inj on Spse,' all committed in 1993. The jury already knew that Chavarria had assaulted all the occupants of the truck by ramming his car into the back of it and therefore there was no prejudice as a result of admission of the abstract." Cal. Ct. App. Opinion, p.16.

Counsel's failure to take steps to prevent the jury from learning that Chavarria was on parole after serving a prison sentence was "presumably a tactical decision" which did not amount to ineffectiveness, according to the California Court of Appeal. "Here counsel could have made a tactical decision to emphasize that Chavarria was on parole to show that he was less likely to do anything that would result in his being sent back to prison than a similarly situated person not on parole. The fact that Chavarria was on parole after having been in prison could also explain why Soto was angry with Chavarria and why she might have exaggerated the incident to police. We see nothing unreasonable or ineffective in counsel's performance on this issue." Cal. Ct. App. Opinion, p. 17.

The California Court of Appeal also determined that counsel's failure to elicit evidence that Soto had attacked Chavarria a week earlier could have been the reasonable product of a tactical decision. As the court noted, when defense counsel outlined her proffered evidence in pretrial motions, the trial court explained that if the defense introduced evidence of the confrontation, then the prosecution would be entitled to introduce evidence of Chavarria's past violence toward Soto — a point which defense counsel said she would take into consideration. "At trial, counsel apparently made the tactical decision to argue that the injury was caused accidentally, and by Soto herself, rather than by Chavarria. To have alternatively argued that Chavarria caused the injury while defending himself would have been inconsistent with the accident defense and would have cast more doubt on Soto's credibility. In addition, it would have allowed the prosecution to bring in evidence of Chavarria's past violence toward Soto, which would have been very prejudicial to Chavarria." Cal. Ct. App. opinion, p. 17.

2. Analysis

The Sixth Amendment to the U.S. Constitution guarantees not only assistance, but effective assistance, of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984). The purpose of the right is to ensure a fair trial, and the benchmark for judging any claim of ineffectiveness is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." See id. To prevail on an ineffective assistance of counsel claim, a habeas petitioner must show that (1) counsel's performance was "deficient," i.e., his "representation fell below an objective standard of reasonableness" under prevailing professional norms id. at 687-88, and (2) prejudice flowed from counsel's performance, i.e., that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different, see id. at 691-94. The relevant inquiry under Strickland is not what defense counsel could have done, but rather whether his choices were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998), cert. denied, 525 U.S. 1159 (1999).

A difference of opinion as to trial tactics does not constitute denial of effective assistance, and tactical decisions are not ineffective assistance simply because in retrospect better tactics are known to have been available. See Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir.), cert. denied, 469 U.S. 838 (1984); see. e.g., United States v. Ferreira-Alameda, 815 F.2d 1251 (9th Cir. 1987) (counsel's stipulation to evidentiary facts does not necessarily demonstrate incompetency of counsel); United States v. Gibson, 690 F.2d 697, 703-04 (9th Cir. 1982) (failure to make evidentiary objections does not render assistance ineffective unless challenged errors can be shown to have prejudiced the defense), cert. denied, 460 U.S. 1046 (1983).

The California Court of Appeal's rejection of Chavarria's ineffectiveness claims was not contrary to or an unreasonable application of clearly established federal law. The state appellate court described the appropriate two prong test requiring deficient performance and prejudice and cited Strickland v. Washington, the controlling U.S. Supreme Court case. And the court's analysis was correct.

First, counsel's failure to prevent the introduction of evidence of the eight convictions for assault with a deadly weapon resulted in no prejudice to Chavarria. Once the jury knew the facts of the crimes, the jury's exposure to the proof of the conviction was inconsequential. The jury heard about the truck-ramming incident from witnesses who described Chavarria's actions when he rammed their truck after they picked up Soto who was trying to escape from Chavarria. After hearing that evidence, learning the additional fact that Chavarria had sustained eight assault with a deadly weapon convictions for the incident added little if anything to the negative impression the jury had of Chavarria based on the incident. There is no reasonable probability that the result of the proceedings would have been different if the jury had not seen the evidence that Chavarria suffered those convictions.

Second, counsel's failure to elicit evidence that Soto attacked Chavarria a week earlier was not deficient performance. Defense counsel explained that she chose not to introduce the evidence because the trial judge "ruled that if I introduced this evidence, I would open the door to all prior acts of violence by Chavarria. Our defense to the charges was that it was an accident. Since self-defense was not the issue, it did not seem worth allowing in further acts of violence on Chavarria's part." Petition, Exh. E. This was a reasonable tactical decision by counsel, and did not amount to deficient performance.*fn2 The evidence of the victim's earlier attack was not going to be admitted at trial without the offsetting negative information about Chavarria. When the whole picture is considered (rather than just the part favorable to the defense), defense counsel reasonably chose to avoid introducing the small bit of possibly favorable evidence to avoid opening the door to the introduction of a largely negative area of evidence. Moreover, the evidence was not relevant; Chavarria's accident defense would not have been aided by the introduction of evidence of a prior attack by Soto. At trial Soto changed her testimony and claimed that she injured her foot when she hurriedly opened the door onto it and testified that she fell backwards into the stereo cabinet in a drunken stumble, rather than as a result of a shove by Chavarria. Because Soto did not suggest at trial that Chavarria was the aggressor, defense counsel properly decided not to elicit irrelevant evidence of a prior attack by Soto to support a nonexistent self-defense theory.

Finally, counsel's failure to prevent the jury from learning that Chavarria was on parole also did not amount to deficient performance. Counsel had a tactical reason for her decision not to prevent this information which she realized was prejudicial but "when balanced against the benefits of explaining Ms. Soto's conduct it would be more advantageous to the defendant to reveal it." Petition, Exh. E. According to trial counsel, Chavarria's parole status put Soto's actions in context: Soto had explained to defense counsel that Chavarria was afraid of her and "knew that she held the power to put him back in prison." Id. Information that she had lost romantic interest in Chavarria during his incarceration "would explain to the jury why she called the police and exaggerated the incident. It would dispel the notion that she was simply changing her story because she was still in love with the defendant and wanted to protect him." Id. Counsel also thought "there was some benefit to the jury knowing that Chavarria had paid for the prior 1993 incident." Id. Counsel's tactical choices deserve deference because she based them on strategic considerations, made an informed decision, and the decision appears reasonable under the circumstances. See Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). Although defense counsel successfully sought in pretrial proceedings to keep out evidence that Chavarria had recently been released from prison and was on parole, the defense strategy changed during trial, and the recent incarceration and parole status were used as a sword for the defense. They showed that Chavarria was in a precarious position and provided a context for Soto's comment that she felt she had power over Chavarria. Soto early and often supplemented her answers to straightforward questions with gratuitous references to Chavarria's incarceration history. The record demonstrates a chosen defense strategy, rather than an oversight in counsel's failure to prevent the jury from learning of Chavarria's previous incarceration and parolee status. Even though Chavarria argues that, in retrospect, a better tactic would have been to try to conceal his incarceration and parolee status, he has not shown that counsel's tactical decision was deficient performance.

Chavarria's ineffective assistance of counsel claim fails for lack of prejudice as to the admission of evidence of eight convictions and for lack of a showing of deficient performance regarding the prior attack by the victim and the parole evidence. The California Court of Appeal's rejection of his claim was not contrary to or an unreasonable application of clearly established federal law.

B. Prior Acts Admitted At Trial Under California Evidence Code § 1109

Petitioner next asserts that the court erred in admitting evidence of prior acts of domestic violence, pursuant to California Evidence Code § 1109, because that statute violated his rights under the Due Process Clause, the Equal Protection Clause, and the Ex Post Facto Clause of the U.S. Constitution.

California Evidence Code § 1101 provides, in relevant part: "(a) Except as provided in this section and Section[] . . . 1109, evidence of a person's character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact . . . other than his or her disposition to commit such an act."

Section 1109 provides, in relevant part that "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.".

Evidence Code § 352 permits the court to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of under prejudice, of confusing the issues, or of misleading the jury."

As the California Court of Appeal explained, "section 1109 permits a trial court to admit evidence a defendant committed prior acts of domestic violence in order to show his motive, intent and the lack of accidental causes, to commit acts of domestic violence without meeting the similarity or pattern requirements of [§ 1101(b)], and to prove he committed an offense involving domestic violence on a specified occasion as long as such evidence is not rendered inadmissible by section 352." Cal. Ct. App. opinion, p. 12.

The California Court of Appeal rejected Chavarria's due process, equal protection, and ex post facto challenges to § 1109. The statute did not violate due process because the court retained discretion to exclude propensity evidence under § 352. Id. The statute did not violate Chavarria's right to equal protection because domestic violence and sexual abuse cases were different — each being "`quintessentially a secretive offense, shrouded in private shame, embarrassment and ambivalence on the part of the victim, as well as intimacy with and intimidation by the perpetrator. The special relationship between victim and perpetrator in both domestic violence and sexual abuse cases, with their unusually private and intimate context, easily distinguishes these offenses from the broad variety of criminal conduct in general. Although all criminal trials are credibility contests to some extent, this is unusually — even inevitably — so in domestic and sexual abuse cases, specifically with respect to the issue of victim credibility. The Legislature could rationally distinguish between these two kinds of cases and all other criminal offenses in permitting the admissibility of previous like offenses in order to assist in more realistically adjudging the unavoidable credibility contest between accuser and accused.'" Id. at 13-14 (citation omitted). Finally, the state court found that § 1109 did not violate Chavarria's ex post facto rights because the law was simply a non-prohibited new evidentiary rule for use at certain trials. Id. at 14-15.

1. Due Process Clause

A state's criminal law (such as an evidence law pertaining to criminal trials) does not violate the Due Process Clause "unless it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Montana v. Egelhoff, 518 U.S. 37 (1996). "It is not the State which bears the burden on demonstrating that its rule is deeply rooted, but rather respondent who must show that the principle of procedure violated by the rule (and allegedly required by due process) is so rooted in the traditions and conscience of our people as to be ranked as fundamental." Egelhoff, 518 U.S. at 47 (quoting Patterson, 432 U.S. at 202) (internal quotations omitted) (emphasis in original) (rule that intoxication may be considered on the question of intent was not so deeply rooted as to be a fundamental principle enshrined by the Fourteenth Amendment). But simply finding a historical basis for or against a rule is not enough: "The Constitution does not encompass all traditional legal rules and customs, no matter how longstanding and widespread such practices may be. The Supreme Court has cautioned against the wholesale importation of common law and evidentiary rules into the Due Process Clause of [the] Constitution" United States v. LeMay, 260 F.3d 1018, 1024-25 (9th Cir. 2001), cert. denied, 534 U.S. 1166 (2002).

No federal court has yet directly reached the constitutionality of § 1109. However, § 1109 is analogous to Federal Rule of Evidence 414, which governs the admissibility of evidence of prior conduct in cases of child molestation. The Ninth Circuit has rejected due process and equal protection challenges to Rule 414, and its reasoning guides this court's consideration of the very similar California law for domestic violence cases. See United States v. LeMay, 260 F.3d at 1024, 1030. Federal Rule of Evidence 414 states that "evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant." The court determined that Rule 414 did not violate due process because Rule 403 (the federal analog to California Evidence Code § 352) functions as a filter, resulting in the exclusion of evidence that is so prejudicial as to deprive the defendant of his right to a fair trial. Id. at 1026. In other words, the "application of Rule 403 to Rule 414 evidence eliminates the-due process concerns posed by Rule 414." Id. at 1027, quoting United States v. Castillo, 140 F.3d 874, 881 (10th Cir. 1998).

Evidence Code § 1109 functions in an analogous fashion to Federal Rule of Evidence 414. Section 1109 allows for the introduction of evidence of prior domestic abuse by a defendant accused of domestic abuse and is subject to § 352 which excludes unduly prejudicial evidence. Like Rule 414, § 1109 does not pose a due process concern because the § 352 filter (the state analog to the Rule 403 filter) does not allow the admission of § 1109 evidence which is so prejudicial as to preclude the right to fair trial guaranteed by the due process clause. Chavarria has not shown "that the traditional ban on propensity evidence involves a `fundamental conception of justice'" which is violated by § 1109. See LeMay, 260 F.3d at 1025. He thus has not shown that § 1109, which allows propensity evidence in the limited area of domestic violence cases, violates due process.

A further reason Chavarria is not entitled to the writ is because he has not shown that the California Court of Appeal's rejection of his due process claim was contrary to or an unreasonable application of "clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254 (d)(1). As the Ninth Circuit has recognized, there is not much in the way of clearly established law on the propensity evidence question: "the Supreme Court has never expressly held that it violates due process to admit other crimes evidence for the purpose of showing conduct in conformity therewith, or that it violates due process to admit other crimes evidence for other purposes without an instruction limiting the jury's consideration of the evidence to such purposes. Indeed, the Supreme Court has expressly declined to answer these questions see Estelle [v. McGuire], 502 U.S. at 75 n. 5, 112 S.Ct. 475 ("Because 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.')." Garceau v. Woodford, 275 F.3d 769, 774-75 (9th Cir. 2001), cert. granted in part, 123 S.Ct. 32 (2002).

2. Equal Protection Clause

The Ninth Circuit's decision in LeMay also guides this court's analysis of Chavarria's equal protection claim. In LeMay, the court held that Federal Rule of Evidence 414 did not violate the Equal Protection Clause. First, the rule did not discriminate against any group of individuals on the basis of a suspect or quasi-suspect class. LeMay, 260 F.3d at 1030. Second, Rule 414 did not infringe on a fundamental right, because defendants have "no fundamental right to have a trial free from relevant propensity evidence that is not unduly prejudicial." Id. at 1030. Because the Rule did not make distinctions based on a suspect class, or infringe a fundamental right, the Rule needed only to bear a "reasonable relationship to a legitimate government interest." Id. at 1031. Prosecuting crime is a legitimate government interest, and Rule 414 allowed prosecutors to introduce relevant evidence in furtherance of that state interest.

Just as the class of sex offenders was considered not a suspect class in LeMay, the class of domestic violence defendants is not a suspect class here. And § 1109 does not infringe on a fundamental right because Chavarria had no fundamental right to have a trial free from relevant propensity evidence that is not unduly prejudicial. Section 1109 need only bear a reasonable relationship to a legitimate government interest. It does. It aids the effective prosecution of a quintessentially secretive crime by allowing the introduction of relevant evidence in domestic violence cases. Chavarria has not shown that the application of § 1109 in his case violated his right to equal protection.

3. Ex Post Facto Clause

The U.S. Constitution provides that "No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts. . . ." U.S. Const., Art. I, § 10. In Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798), Justice Chase gave the classic description of ex post facto laws:

I will state what laws I consider ex post facto laws, within the words and intent of the prohibition. 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.2d. Every law that aggravates a crime, or makes it greater than it was, when committed.3d Every law that changes the punishment, and inflects a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony. than the law required at the time of the commission of the offence, in order to convict the offender.
3 Dall. at 390 (emphasis added).

The fourth Calder category is at issue in Chavarria's case. The starting point for the analysis is to understand that the fourth Calder category remains valid. Although some earlier case law could be read to suggest that Calder's fourth category of ex post facto laws had been abandoned, the Supreme Court made in clear in Carmell v. Texas, 529 U.S. 513, 537-39 (2000), that no such abandonment had occurred.

The fourth Calder category prohibits both laws that lower the burden of proof and laws that reduce the quantum of evidence necessary to meet that burden. Cf. Carmell, 529 U.S. at 541, but that does not mean that a state may not change any evidence laws. For example, a change in a witness competency rule did not violate the Ex Post Facto Clause; the changed rule did not always run in favor of the state and did not necessarily affect, let alone subvert, the presumption of innocence. See Carmell, 529 U.S. at 533 n. 23, 546. "The issue of the admissibility of evidence is simply different from the question whether the properly admitted evidence is sufficient to convict the defendant. Evidence admissibility rules do not go to the general issue of guilt, nor to whether a conviction, as a matter of law, may be sustained." Id. at 546; see also Hopt v. Territory of Utah, 110 U.S. 574, 589-90 (1883).

Even assuming § 1109 was enacted after the fact, it did not lower the burden of proof for the prosecution and did not change the quantum of evidence necessary to convict. The statute permitted the jury to consider additional relevant evidence that was not excluded under § 352 in determining whether the prosecution had met its burden of proof. Chavarria has not shown that § 1109 on its face or as applied in his case altered the burden of proof of the amount of evidence necessary to convict. Section 1109 changed evidence admissibility rules, but that was permissible under Carmell and did not run afoul of the Ex Post Facto Clause.

C. Jury Instruction on the Defense of Accident

The court instructed on the accident defense using language which tracks CALJIC No. 4.45: "When a person commits an act through misfortune or by accident under circumstances that show no criminal intent or purpose, he does not thereby commit a crime." RT 381. Chavarria proposed that an additional sentence be added: "If there is reasonable doubt as to whether or not the door hitting Ms. Soto's foot was an accident, you must resolve the doubt in favor of the defendant and [bring in a verdict of not guilty] [find criminal intent to be absent]." CT 228. Chavarria contends that the trial court erred in rejecting part of his proffered instruction on the affirmative defense of accident and that the omission resulted in a violation of his rights to due process, jury trial, and compulsory process.

The state court of appeal rejected his claim, finding that the instruction given, i.e., the first sentence of CALJIC 4.45, was sufficient. The burden of proof remained on the prosecution to prove beyond a reasonable doubt all elements of the offense, including criminal intent, and the absence of a specific burden of proof instruction on the defense of accident did not change that. See Cal. Ct. App. Opinion, ¶. 18-19.

A state trial court's refusal to give an instruction does not alone raise a ground cognizable in a federal habeas corpus proceedings. See Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). The error must so infect the trial that the defendant was deprived of the fair trial guaranteed by the Fourteenth Amendment. See id. Whether a constitutional violation has occurred will depend upon the evidence in the case and the overall instructions given to the jury. See Duckett v. Godinez, 67 F.3d 734, 745 (9th Cir. 1995). A criminal defendant is entitled to adequate instructions on the defense theory of the case, as long as some evidence supports it. See Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 2000) (error to deny defendant's request for instruction on simple kidnaping where such instruction was supported by the evidence). However, the defendant is not entitled to have the jury instructed in his or her precise terms where the given instructions adequately embody the defense theory. See United States v. Del Muro, 87 F.3d 1078, 1081 (9th Cir. 1996).

The jury instructions as a whole adequately embodied the defense theory and did not suggest a change in the burden of proof. The jury was given the CALJIC 2.90 reasonable doubt instruction, which clearly identified the burden of proof required for conviction. By instructing the juror with both CALJIC 2.90 and the first sentence of 4.45, the trial court made it clear to the jury that the prosecution had to prove criminal intent. The failure to add on to the instruction Chavarria's proposed sentence highlighting his evidence did not violate his constitutional rights. The California Court of Appeal's rejection of the claim was not contrary to or an unreasonable application of clearly established federal law.

D. Jury Instruction on the Defense of Self-Defense

Chavarria asserts that the trial court "committed constitutional error" when it instructed the jury on self-defense with CALJIC No. 5.50, as requested, but then did not instruct on 5.30 and 5.31 sua sponte. Chavarria states that "[w]ithout those instructions, the relevant principles were not made known to the jury." Petition, p. 53. The California Court of Appeal rejected Chavarria's claim because he had not specified (and it could not figure out) what those "relevant principles" were.

Like the California Court of Appeal and the respondent, this court is unable to see what the "relevant principles" were that were omitted. Moreover, Chavarria does not dispute respondent's assertion that the support for any self-defense instruction was weak, at best. Soto told the police that Chavarria slammed the door to keep her from leaving and later testified that Chavarria had not slammed the door at all, but in neither event did she say it was to keep her from using force on him. Soto told the police that Chavarria pushed her without provocation into the stereo cabinet and later testified that Chavarria hadn't pushed her at all but that she had stumbled into the cabinet, but neither story included an assertion that he pushed her to keep her from using force on him. Chavarria has not shown a constitutional violation resulting from the court's failure to sua sponte give the additional self-defense instructions after giving the CALJIC 5.50 self-defense instruction. He also has not shown any prejudice resulting from the absence of those instructions. The California Court of Appeal's rejection of this claim was not contrary to or an unreasonable application of clearly established federal law.

E. Jury Instruction on Reasonable Doubt

Chavarria claims that the version of CALJIC 2.90 (California's pattern instruction concerning reasonable doubt) given at his trial violated his right to due process. He contends that the "[t]he removal of the word `certainty' resulted in an instruction defining reasonable doubt at a lesser standard than is constitutionally required." Petition, p. 55.

Due process requires that the trial court instruct the jury on the necessity that the defendant's guilt be proven beyond a reasonable doubt. See Victor v. Nebraska, 511 U.S. 1, 5 (1994). The Constitution does not, however, prohibit trial courts from defining reasonable doubt or require them to do so as a matter of course. See id. Taken as a whole, the instructions must correctly convey the concept of reasonable doubt to the jury. See id. The proper inquiry is "whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard." Id. at 6, citing In re Winship, 397 U.S. 358 (1970) (Due Process Clause of the Fourteenth Amendment requires that the government must prove beyond a reasonable doubt every element of a charged offense.)

Prior to 1994, CALJIC 2.90 mirrored the language of California Penal Code Section 1096 in describing the state of mind the jurors should be in when deciding to acquit, specifically, "in the condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge." The 1994 modification eliminated the phrase, "to a moral certainty." See CALJIC 2.90.

The purpose of the 1994 modification to CALJIC 2.90 was to clarify the instruction to the jury. Cf. People v. Freeman, 8 Cal.4th 450, 504 (Cal. 1994); CALJIC 2.90 use note. Not only has the U.S. Supreme Court criticized the use of the term "moral certainty" when instructing on reasonable doubt, it also has approved the use of "abiding conviction" (which remains in the instruction), without any qualifying term. See Victor, 511 U.S. at 7-17. "An instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government's burden of proof." Id. at 14-15, citing Hopt v. Utah 120 U.S. at 430, 439) ("The word `abiding' here has the signification of settled and fixed, a conviction which may follow a careful examination and comparison of the whole evidence.") Furthermore, the constitutionality of a jury instruction on reasonable doubt is measured by looking at the instruction in its entirety. There is no specific language that must be used to make the instruction valid. The revised language of CALJIC 2.90 is not so vague as to create a constitutional violation. The post-Victor version of CALJIC 2.90 — the version given at Chavarria's trial — was upheld in Lisenbee v. Henry, 166 F.3d 997, 999-1000 (9th Cir.) (use of term "abiding conviction" in defining reasonable doubt is constitutionally sound), cert. denied, 528 U.S. 829 (1999).

The Lisenbee decision dictates the result here: Chavarria's claim must be dismissed because California's current reasonable doubt pattern instruction does not violate due process.

F. Admission of Statement Made on 911 Tape

A neighbor, Marcela Lozano, called 911 and told the dispatcher, "he's beating the crap out of her right now." RT 319. The trial court originally decided to exclude the 911 call evidence but stated that it "may come in later depending on her testimony if she should testify." RT 60. The evidence was admitted to impeach Lozano's testimony for the defense. Chavarria argues that his right to due process was violated when the trial court admitted into evidence the transcript of the 911 call made by Lozano because Lozano lacked personal knowledge of whether Soto was being beaten and the evidence was not proper impeachment in that it was not inconsistent with Lozano's testimony that she "just heard a yell" downstairs from a woman and did not know if the person yelling was Ms. Soto. RT 317. On cross-examination, the prosecutor asked her if she thought the woman was being beaten. Lozano replied, "I didn't know what was happening. It was just one yell." RT 317. At that point, the prosecution read from a transcnpt of the previously excluded 911 tape. The defense unsuccessfully objected to the introduction of the evidence.

The California Court of Appeal rejected Lozano's claim about the 911 tape. The court disagreed with Chavarria's argument that there was nothing inconsistent between Lozano's trial testimony and statement on the 911 tape: "Defense witness Lozano testified at trial that she heard a single `yell.' If her single `yell' precipitated (and therefore preceded) the 911 call, then there would be no basis for her to state during the call, `he's beating the crap out of her right now.' Her testimony was inconsistent with her statement to the 911 dispatcher and [the tape] was therefore properly admitted at trial." Cal. Ct. App. Opinion, p. 21.

A state court's evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process. See Pulley v. Harris, 465 U.S. 37, 41 (1984); Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999), cert. denied, 528 U.S. 1198 (2000); Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991).

The admission of evidence of the statement Lozano made on the 911 tape did not violate due process. As the California Court of Appeal found, the evidence was inconsistent with the trial testimony in which Lozano tried to downplay what she had heard. Once Lozano testified that she had heard just "one yell" and claimed she didn't remember telling the dispatcher she thought her neighbor was being beaten, the prosecutor was entitled to impeach her with her contradictory statements on the 911 tape. The 911 tape supported the inference that Lozano's trial testimony was erroneous. Moreover, even if the admission of the 911 tape was error, it did not have a substantial and injurious effect on the jury's verdict. See Dillard v. Roe, 244 F.3d 758, 767 n. 7 (9th Cir.), cert. denied, 534 U.S. 905 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). The California Court of Appeal's rejection of the claim was not contrary to or an unreasonable application of clearly established federal law. Chavarria is not entitled to the writ on this claim.

G. Evidence of Stay-Away Order

Chavarria contends that the trial court erred in admitting evidence of a stay-away order, which was issued as a condition of defendant's parole, to be admitted at trial. Chavarria argues that, as a result of learning of the stay-away order, "it is more than reasonably likely that the jury did not follow its instructions to weigh all the evidence carefully, but instead skipped careful analysis of the logical inferences raised by the evidence and convicted petitioner on the basis of his suspicious character and previous acts, in violation of our community's standard of fair play." Petition, p. 63.

Chavarria's evidentiary error claim was rejected by the California Court of Appeal, which found the order "clearly relevant to a number of issues raised in this trial. One of those issues as to which it was relevant was defendant's defense that Soto had power over him because she could turn him in for violating a court order. The stay-away order was also relevant to prove defendant's motive. If Soto escaped and called police, defendant could be found in violation of his probation. He therefore had a motive to slam the door to keep her inside her apartment. In view of its obvious relevancy, the trial court properly admitted evidence of defendant's stay-away order." Cal. Ct. App. Opinion, pp. 22-23.

Chavarria has not shown error in the state appellate court's explanation of the relevancy of the stay-away order. The prosecution adequately explained the relevancy of the evidence at trial: "The fact that he is in violation of a lawful order to not be living with her, to not be seeing her or spending time with her, what does that provide? That provides motive. That tells us why he's not going to let her call the police, why he's not going to let her out of that house." RT 424. Because the evidence was relevant to motive and the jury could drawn the permissible inference of guilt from it, its admission did not violate due process. See Jammal, 926 F.2d at 920. Chavarria is not entitled to the writ on this claim.

H. Exclusion of Evidence Regarding Lozano's Childhood 911 Calls

In response to a question by defense counsel, upstairs neighbor Marcela Lozano testified that she had called 911 "often" when she was a child but had never called 911 as an adult. The court would not allow further testimony in this area, despite the defense offer of proof that Lozano would testify that her mother's boyfriend often beat up her mother. Chavarria urges that this exclusion of evidence violated his right to due process; he contends that evidence that Lozano called 911 often as a child because her mother was being beaten by her mother's boyfriend "was relevant to show why Lozano might have done a little `puffing' during the 911 call" in this case, thus affecting Lozano's credibility. Petition, p. 59.

The California Court of Appeal rejected Chavarria's evidentiary error claim, agreeing with the trial court that the evidence was too remote and not relevant. Cal. Ct. App. Opinion, p. 21-22. "Lozano testified that she had never called 911 as an adult, and therefore her childhood experiences had not made her unusually likely to call 911 with little provocation. As the trial court noted, the fact that she called 911 often as a child was simply `too remote' to be relevant. We find no error." Id. at 22.

The Due Process Clause does not guarantee the right to introduce all relevant evidence. See Montana v. Egelhoff, 518 U.S. 37, 42 (1996). A defendant does not have an unfettered right to offer evidence that is incompetent, privileged or otherwise inadmissible under standard rules of evidence. See id. The exclusion of evidence does not violate the Due Process Clause unless "it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Id. at 43 (quoting Patterson v. New York, 432 U.S. 197, 201-02 (1977)) (internal quotations omitted).

When deciding whether the exclusion of evidence violates the Due Process right to a fair trial or the Sixth Amendment right to present a defense, the court balances the following five factors: (1) the probative value of the excluded evidence on the central issue; (2) its reliability; (3) whether it is capable of evaluation by the trier of fact; (4) whether it is the sole evidence on the issue or merely cumulative; and (5) whether it constitutes a major part of the attempted defense. Drayden v. White, 232 F.3d 704, 711 (9th Cir. 2000).

In this case, the analysis begins by noting that California Evidence Code § 352 is a rather commonplace kind of evidentiary rule allowing the exclusion of evidence where its probative value is substantially outweighed by some other factor. Under § 352, evidence can be excluded when its probative value is outweighed by the probability that its admission will necessitate undue consumption of time, be unduly prejudicial, confuse the issues or mislead the jury. The rule itself does not offend due process. And the application of the rule to exclude the evidence did not result in a due process violation. The probative value of the excluded evidence was at most minimal because Lozano's childhood 911 calls had nothing to do with Chavarria's guilt and had very little relevance to Lozano's truthfulness about the current 911 call. The evidence's reliability was questionable insofar as it was supposed to be an indicator that she "puffed" up the problem when she made the current 911 call. Lozano's testimony was capable of evaluation by the trier of fact. The evidence was the only evidence on the point, but the point was collateral. The evidence did not constitute a major part of the defense. After consideration of these factors identified in Drayden, the court is firmly convinced that the exclusion of further evidence about Lozano's 911 habits as a child did not violate Chavarria's right to due process. Even if the evidence should not have been excluded, its exclusion did not have a substantial and injurious affect on the verdict. Chavarria is not entitled to the writ on this claim.

I. Jury Instruction Regarding Domestic Violence

Chavarria contends that the "trial court failed to instruct the jury on the `domestic violence' element of the sentence enhancement allegation under California Penal Code § 12022.7(d)." See Petition, ¶ 64-65.

At the relevant time, Penal Code § 12022.7(d) provided:

Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission or attempted commission of a felony shall, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of three, four, or five years. . . . As used in this section, "domestic violence" has the meaning provided in subdivision (b) of Section 13700.
Penal Code § 13700(d) defined domestic violence:

"Domestic violence" means abuse committed against an adult or a fully emancipated minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. For purposes of this subdivision, "cohabitant" means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. Factors that may determine whether persons are cohabiting include, but are not limiteu to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as husband and wife, (5) the continuity of relationship, and (6) the length of the relationship.
Cal. Ct. App. Opinion, p. 23.

At Chavarria's trial, the jury was instructed with this modified version of CALJIC 17.20: "It is alleged in Counts 1, 2 and 3 that in the commission and attempted commission of the crimes therein described the defendant personally inflicted great bodily injury upon Corinna Soto. If you find the defendant guilty of any of those three counts, you must determine whether or not the defendant did personally inflict great bodily injury upon Corinna Soto." Cal. Ct. App. Opinion, p. 23. Petitioner argues that, by substituting the victim's name in for the phrase "under circumstances involving domestic violence," the trial court took away from jury consideration an element of the crime, i.e., a finding of circumstances of domestic violence. See Pet. 64-65.

The California Court of Appeal rejected Chavarria's instructional error claim:

Defendant's contention that the court needed to add the phrase that defendant personally inflicted great bodily injury upon Corinna Soto under circumstances involving domestic violence is without merit. At trial, Soto testified that she and defendant were married at the time of the incident. In addition, they had a child together and they cohabited before the 1993 incident. The court had earlier defined domestic violence as "abuse committed against an adult or a fully emancipated minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the defendant has had a child or is having or has had a dating or engagement relationship." Clearly, these instruction, when read together, apprised the jury that the assaultive conduct and bodily injury committed against Soto in counts one and three were charging violations of the laws against domestic violence.
Cal. Ct. App. Opinion, p. 24.

Chavarria's due process claim regarding the instruction has no merit. He errs in contending that the error is reversible per se and is not amenable to harmless error analysis. A jury instruction that omits or misdescribes an element of an offense is constitutional error subject to a harmless error analysis. See Neder v. United States, 527 U.S. 1, 15 (1999); California v. Roy, 519 U.S. 2, 5 (1996). In light of the overall instructions, including the other instruction defining domestic violence, and in light of the undisputed evidence about the relationship between Soto and Chavarria, the instructions given did not violate Chavarria's right to due process. Chavarria is not entitled to the writ on this claim.

CONCLUSION

For the foregoing reasons, the petition for writ of habeas corpus is DENIED. The clerk shall close the file.

IT IS SO ORDERED.


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