The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both parties consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c).
Petitioner challenges his 2009 conviction on charges of felony spousal abuse, threatening to commit a crime that would result in death or great bodily injury, assault with force likely to produce great bodily injury, unlawful sexual penetration, and violating protective orders. On August 20, 2009, petitioner was sentenced to 13 years and 8 months prison. Petitioner contends that the trial court prejudicially erred in denying his motion for mistrial after the victim testified that petitioner "forced sex" on her, and that the trial court was required to instruct the jury on misdemeanor battery of a spouse, a lesser included offense to felony spousal abuse. After careful review of the record, this court concludes that the petition should be denied.
On August 20, 2009, petitioner was convicted of felony spousal abuse, threatening to commit a crime that would result in death or great bodily injury, assault with force likely to produce great bodily injury, unlawful sexual penetration, and violating protective orders. Petitioner filed a timely appeal, and on December 28, 2011, the California Court of Appeal for the Third Appellate District affirmed the conviction. (Respondent's Lodged Document ("LD") 6.)
Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, which was denied on March 14, 2012. (LD 8.)
III. Facts and Procedural Background*fn1
The opinion of the California Court of Appeal contains a factual summary of petitioner's offenses, and a procedural background:
The charges against [petitioner] stem from an altercation he had with V.B. on May 20, 2008. At [petitioner's] trial, V.B. testified in detail about this altercation. In addition, the jury heard evidence of other instances where [petitioner] engaged in assaultive and/or threatening conduct toward women.
Ja'Nay Lott, [petitioner's] former spouse, was the prosecution's first witness at trial. [Petitioner] and Ja'Nay were married from 2005 until 2006. In February 2004, [petitioner] argued with Ja'Nay about her desire to drive to work separately. [Petitioner] attempted to choke Ja'Nay. She hit [petitioner] with a coffee cup. [Petitioner] then slapped, punched, kicked, and stomped on Ja'Nay in the hallway. Ja'Nay entered her car and [petitioner] dragged her out, threw her down on the front lawn, and continued to stomp on and kick Ja'Nay. Ja'Nay sustained multiple bruises and a black eye.
Later, in September 2005, [petitioner] quarreled with Ja'Nay and then showed up at her work. As Ja'Nay walked out of work for the day, [petitioner] chased her on foot through the parking lot. Ja'Nay arrived safely at her car and locked the doors. [Petitioner] told
Ja'Nay that he was her husband and she would be with him "by choice or by force."
[Petitioner] married V.B. in February 2007. They lived together for two years before they were married, and they separated a few weeks after they were married.
On May 20, 2008, V.B. came home at approximately 8:15 to 8:30 a.m. after having spent the night elsewhere. V.B. explained her decision to sleep away from home:
"[PROSECUTOR:] Had you stayed the night in your home that preceding evening the 19th?
"[V.B.:] No. [¶] . . . [¶]
"[PROSECUTOR:] And so you did not stay the night in your home; you stayed elsewhere?
"[PROSECUTOR:] And how long had you -- how many days had you stayed the night elsewhere preceding May 20th?
"[V.B.:] It was a couple [of] days. It was on and off for the last couple weeks before that.
"[PROSECUTOR:] It was not the first time you had stayed a night away from your home?
"[PROSECUTOR:] And why did you stay the night or nights away from your home?
"[V.B.:] [Petitioner] had threatened me numerous of times, but the main reason is I had to go to work, and he would like take my vehicle and I would not have a ride to work. And like three nights before that he had made me -- forced sex on me when I did not want it.
"[PROSECUTOR:] Okay. So because of physical abuse and you said taking your keys --"
At this juncture, defense counsel asked to approach the bench and the trial court held a sidebar with counsel.
In the sidebar, based on V.B.'s testimony that [petitioner] "forced sex on me," [petitioner] requested a mistrial, which the trial court tentatively denied. The trial court, however, indicated it would allow [petitioner] to further argue the mistrial motion outside the jury's presence later that day. After the sidebar, the trial court addressed the jury: "Ladies and gentlemen, as you noted already this morning, some times things come up during the course of the trial that require immediate attention which is why we have these sidebars. You shouldn't worry or speculate about why we have these sidebars, but I will just tell you it's to handle issues that pertain to the trial. [¶] I am going to strike the witness's last answer as to why she had stayed away from the house the night before and the several days before that, and I'm instructing you not to consider the answer which you obviously heard for any purposes whatsoever. [¶] [V.B.], I understand it's difficult for you to know exactly what the perimeters are of the answers you give, but I would ask you to listen as carefully as you can to the questions and try to keep your answers as close to the question as possible.
Okay." V.B. nodded her head. Later, the trial court held proceedings outside the jury's presence during which the trial court further considered [petitioner's] motion for a mistrial. After hearing oral argument, the trial court denied the motion.
Continuing on with her testimony, V.B. said that when she came home on the morning of May 20, 2008, she encountered [petitioner] in the kitchen. [Petitioner] was angry that she had been elsewhere. [Petitioner] tried to hug V.B. and she pulled away. [Petitioner] reacted by "[a]gressively trying to hug" V.B. V.B. went upstairs to her bedroom.
In the bedroom, [petitioner] accused her of having sex with another man. [Petitioner] was yelling and screaming. [Petitioner] was saying things like, "It's my birthday" and "Who do you think you are," "Where have you been," and "You have been with some guy." When pressed further to elaborate on [petitioner's] language,
V.B. explained that [petitioner] was saying things such as "Bitch, . . . who the fuck do you think you are? Where the hell you been? And I know you have been fucking somebody. And you have been -- you had some nigga at your best friend's house fucking him, and you don't want to fuck me." [Petitioner] grabbed V.B. by the neck, lifted her up off her feet with her legs dangling, and threw her on the bed. Once V.B. was on the bed, [petitioner] choked her. V.B. kept trying to move but [petitioner] kept gripping her neck tighter.
V.B. felt like she was going to black out. At first she said words to the effect of "I can't breathe," but [petitioner's] grip became too tight and V.B. was unable to speak. [Petitioner] was leaning over
V.B. and he let go of her neck and backed up slowly. [Petitioner] then uttered something like: "I'm going to kill you. But I'm not going to kill you today." [Petitioner] made a similar comment at least one other time during the incident. V.B. believed him.
V.B. dialed 911 and threw the phone, figuring that doing so would provide more time for the call to go through. [Petitioner] retrieved the phone and hung it up. The phone rang and [petitioner] told V.B. not to say anything. [Petitioner] answered and said hello.
V.B. began yelling, "Can you come?" [Petitioner] threw V.B. back on the bed. [Petitioner] pinned V.B.'s hands over her head, using his left elbow. [Petitioner] again accused V.B. of having sex with someone else and he put his right hand inside V.B.'s sweatpants. [Petitioner] placed his fingers inside the "lip area" of V.B.'s vagina. [Petitioner] then put his hand or fingers up to V.B.'s nose and demanded that she "smell it." [Petitioner] exclaimed, "You have been having sex with somebody else," "I know you have," or words to that effect.
Nevertheless, [petitioner] still wanted to have sex with V.B. because it was [petitioner's] birthday. He told her "Bitch, you're going to fuck me because it's my birthday." V.B.'s hands were still pinned over her head. According to V.B., [petitioner] had his elbow resting on the inside area of V.B.'s arm which hurt really bad. [Petitioner] leaned toward V.B. and she leaned forward and bit him. [Petitioner] responded, "Oh that feels good. Do it again." After she bit him a second time, [petitioner] started to cry. At some point during ...