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March 24, 2003


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


The petition for writ of habeas corpus is DENIED.






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.


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.


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).


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


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.


A. Ineffective Assistance ...

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