Filed 2/29/16 P. v. Chavez CA1/3
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A141830
v.
LEVIT CHAVEZ, JR.,                                                   (City & County of San Francisco
                                                                     Super. Ct. No. SCN214815)
         Defendant and Appellant.


         Defendant Levit Chavez, Jr. was convicted by a jury of second degree murder of
his father, Levit Chavez, Sr. (Chavez, Sr.), and first degree attempted murder of his
father’s girlfriend, Nelsey Flores (Nelsey).1 (Pen. Code, §§ 187, subd. (a), 664.) He was
found to have used a deadly weapon (Pen. Code, § 12022, subd. (b)(1) & (3)), and to
have inflicted great bodily injury on Nelsey (Pen. Code, § 12207, subd. (a)). He was
sentenced to 20 years to life in prison.
         The defense claimed that Nelsey murdered Chavez, Sr., and that defendant stabbed
Nelsey in self-defense. In support of that claim, defendant called numerous witnesses
who testified that Nelsey was physically violent, volatile, and extremely jealous of
Chavez, Sr. who was having an affair. Over defense objection, the court allowed the
prosecution to elicit testimony from one of those witnesses that defendant was also
capable of violence. Defendant argues that this evidentiary ruling was error that requires
that his convictions be reversed.

         1
        For clarity, we will sometimes use first names to refer to people who have the
same last name as others involved in the case. No disrespect is intended.

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       We disagree. The testimony defendant highlights was properly admitted under
Evidence Code section 1103, which allows introduction of a defendant’s propensity for
violence when he or she claims to have acted in self-defense. Moreover, the evidence
was minimally significant to the prosecution’s case. We affirm.
                                  I. BACKGROUND
       In May 2009, eight-year-old Rudolpho Chavez (Rudy) lived with his mother
Nelsey and his father Chavez, Sr. above an apartment occupied by Irma Castanon. Jose
Zecena lived in a backyard apartment at the residence, and defendant spent the night of
May 23 in a mobile home across the street. Castanon testified that on the morning of May
24, Rudy knocked on her door, crying and shaking, and said that “his brother was
stabbing his mother.” Zecena testified that he saw two men fighting in the backyard that
morning, and saw Chavez, Sr. drag himself to the wall of Zecena’s apartment. Rudy
came out of Castanon’s apartment, and Zecena and his wife brought Rudy to their
apartment. Rudy told them defendant “killed my daddy.”        Chavez, Sr. bled to death
from multiple stab wounds. Nelsey sustained multiple stab wounds, almost died, and had
to undergo a splenectomy.
       Rudy testified that he heard defendant and Chavez, Sr. argue that morning. After
the argument, defendant came in and went to the bathroom. Nelsey was cooking in the
kitchen. From his bedroom, Rudy saw defendant leave the bathroom and approach
Nelsey. Nelsey screamed and ran into Rudy’s room while defendant tried to stab her.
She tried to close the door to the room but defendant pushed it open and pushed her onto
a chair. She was bleeding. Rudy ran to the downstairs neighbors and told them to call
the police.
       Nelsey testified that she was in the kitchen that morning, and defendant and
Chavez, Sr. were in the backyard. Defendant came inside and went to the bathroom.
When he came out of the bathroom, he grabbed her from behind, and stabbed her
repeatedly. Nelsey said the attack was completely unprovoked. “It was like he had the
devil in him.” Nelsey told police that defendant had asked Chavez, Sr. for money, but



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she otherwise had no idea what might have prompted the attack. Nelsey screamed to
Chavez, Sr. for help.
       Nelsey testified that while defendant was attacking her, Chavez, Sr. came up to a
deck next to the kitchen, defendant attacked him with the knife, and they went down to
the backyard. Nelsey locked the door to her bedroom and went to Rudy’s room to try to
protect him and herself. Defendant kicked in her bedroom door and entered Rudy’s
room. He resumed stabbing her, and Rudy “took off running.” Defendant left shortly
thereafter.
       Castanon testified that when she opened her door for Rudy she saw defendant
leave the house holding a bloody knife. Nelsey testified that she went out to the front of
the house and phoned her mother. When police arrived, Nelsey was being treated by
paramedics on the front steps. Chavez, Sr. was dead in the backyard, face down in a pool
of blood.
       Defendant went to a nearby Walgreens and spoke with a pharmacist, who testified
that defendant’s face and hands were covered in blood. After using the bathroom,
defendant told the pharmacist that he had stabbed someone in self-defense, and needed to
turn himself in. Police arrived and took him into custody.
       Defendant was interviewed, and portions of the videotaped interview were played
for the jury. Defendant told police that he had done something wrong and needed help
and treatment. He had been up for two days on drugs and had a “mental breakdown.” He
was “hearing things” and “snapped.” He said, “I stabbed them. I know I did wrong. ”
His sister Christina told police that he had a “crack cocaine problem,” and was using the
drug frequently at the time.
       Police found a trail of blood on the steps leading from the kitchen to the backyard.
Chavez, Sr. was wearing one slipper, a matching slipper was found in the kitchen. Police
searched for the knife but did not find it. Rudy told an officer at the scene that defendant
and Nelsey argued, defendant attacked Nelsey, and Chavez, Sr. came into the room to
protect her. At the trial over four years later, Rudy did not remember the argument, or
seeing his father come to his mother’s aid.


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       Defendant testified that he went to his father’s home that morning to use the
bathroom, and while he was inside the bathroom he heard screaming, Nelsey and Chavez,
Sr. arguing, and Nelsey say that she was going to kill someone. When deffendant left the
bathroom, Chavez, Sr. was bleeding, and Nelsey approached defendant with a knife,
saying, “I’m going to kill you also.” He kicked her in the chest, knocked her to the floor,
and grabbed the knife out of her hand. She tried to take it back, they wrestled, and he
stabbed her, probably more than twice. When she stopped assaulting him, he went to
Walgreens and dropped the knife along the way. He said that Chavez, Sr. gave him
money, and Nelsey did not like him asking for it.
       A series of defense witnesses testified that Nelsey had repeatedly threatened
Chavez, Sr. with serious harm, and that she had violent altercations with him and others.
       Abel Chavez Contreras, defendant’s grandfather, testified that Chavez, Sr. had an
affair with a woman named Chela during the last year of his life, and that Nelsey knew
about the affair. Contreras and Chela lived in Tamazula, Mexico. The last time Chavez,
Sr. visited Mexico, Nelsey called Contreras and told him to tell Chavez, Sr. that “she
would kill him” if he did not leave immediately. Nelsey threatened to “cut his penis”
because of the affair. Contreras said Chavez, Sr. was planning to return to the United
States, arrange his retirement, and retire to Mexico.
       Brenda Chavez, Chavez Sr.’s niece and defendant’s cousin, testified that she had
heard from other family members that Chavez, Sr. had loaned Nelsey’s brother $80,000,
and that Nelsey had threatened to kill Chavez, Sr. Brenda communicated those facts to
the police in a June 2009 letter.
       Claudia Loza, Chavez, Sr.’s niece, testified that at her daughter’s first birthday
party Nelsey had a “bad and violent fight” with Chavez, Sr. Nelsey was hitting Chavez,
Sr., and told him in front of 30 people that she would “cut it off” if he cheated on her.
Nelsey also tried to hit Chavez Sr.’s brother Cesar at the party. Nelsey had a “violent”
attitude, and had previously been in a fight with Cesar’s wife.
       Martha Lorena Hernandez Flores had a daughter with Chavez, Sr., and Nelsey was
upset with the financial support Chavez, Sr. provided for their daughter. Martha testified


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that she and Nelsey “verbally abused” each other. In 2006, Nelsey would have slapped
her in the face if Chavez, Sr. had not intervened. Nelsey told Martha that she and her
daughter “would pay” for that incident.
         Chavez, Sr.’s niece and defendant’s cousin, Kimberley, testified that Nelsey was
an “easily heated” and “extremely jealous” woman. Kimberley told Nelsey at a party in
December of 2008 about Chavez, Sr.’s affair with Chela, which was common knowledge
in the family. Nelsey said, “he better not cheat on me,” and she was “very animated, so
very threatening.” Kimberley told Nelsey that Chavez, Sr. was planning to leave her and
retire to Mexico. The party was followed by 45 minutes of “yelling, screaming, glass
breaking.”
         Ramona Marin, Chavez, Sr.’s former sister-in-law, testified that he told her Nelsey
said she would kill him if he left her. Chavez, Sr. often referred to Nelsey as a “crazy
woman.” Nelsey’s family believed in what Marin considered “witchcraft.” Nelsey put a
rooster with blood in a bucket, and Chavez, Sr. worried that he would be harmed by the
curse.
         Maria Sagrario, Chavez, Sr.’s sister, testified that Nelsey called Chela “the
whore,” and threatened to kill Chavez, Sr. over his infidelity. Sagrario thought Nelsey
would act on her threats because she was a “crazy woman.”
         After these witnesses testified, Gertrude Rose Chavez, defendant’s mother and
Chavez, Sr.’s ex-wife, was called to the stand. Rose testified that Chavez, Sr. said he was
going to leave Nelsey, and try to get custody of Rudy. He said Nelsey called him when
he was in Mexico and said she was going to kill him.
         During Rose’s cross-examination, the court made the evidentiary ruling contested
in this appeal. When Rose said that defendant was living on and off with her in May
2009, the prosecutor asked, “Isn’t it true that you told [the police] that you didn’t have
your son living with you because you were afraid of him?” She answered, “I said
because I was afraid of what he would do.” Defense counsel objected and an unreported
bench conference was held.



                                               5
       The questioning then continued: “Q. And you told [the police] that you were
afraid of your son because of his violent tendencies? [¶] A. I didn’t say violent
tendencies. Q. You said he had an anger management problem, didn’t you? [¶] A. On
that tape that you had? [¶] Q. Yes. [¶] A. Some of the voices were my daughter’s and
mine. If you listen good you get confused with our voices and you get mixed up. . . . As
far as my son, you are talking about that, my son gets upset. At the time I was stressed
out and I can’t deal with everything, if you want to know what was going on then. So I
didn’t want to deal with nobody at the time. [¶] . . . [¶] Q. And, in fact, you called the
police because of your son’s violent behavior, correct? [¶] A. At that time when he did
that. If you are referring at that time when he just acted up, I guess so, yes.”
       After Rose and the jury were excused, defense counsel stated that he had objected
to the questions about defendant’s violent behavior, and said he did not believe that “the,
quote, door [had been] opened” to those questions. He moved for a mistrial and the
motion was denied.
       Subsequently, Abel Chavez, Chavez, Sr.’s nephew and defendant’s cousin,
testified that he lived in Tamazula and that Chavez, Sr. lived with Chela when he came to
Mexico. Abel heard a message Nelsey left at Chavez, Sr.’s home in Tamazula in January
2009. Nelsey said, “I’m going to cut your dick off and kill you motherfucker.” Abel said
that Nelsey became “explosive” at times. She threw things and slapped him at a party.
       Abel’s brother, Saul Chavez Mendez, testified that he also heard messages from
Nelsey on an answering machine in which she cursed and threatened to kill Chavez, Sr.
       Nelsey denied that her brother owed Chavez, Sr. $80,000. She admitted “normal
jealousy,” but denied leaving threatening messages for Chavez, Sr. in Mexico, and did
not remember telling Kimberley that Chavez, Sr. would regret cheating on her. She did
not know that Chavez, Sr. was planning to leave her for a woman in Mexico. He told her
that he was planning to end the affair.
                                     II. DISCUSSION
       Under Evidence Code section 1101, propensity evidence is generally inadmissible.
However, Evidence Code section 1103, subdivision (b) provides: “In a criminal action,


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evidence of the defendant’s character for violence or trait of character for violence (in the
form of an opinion, evidence of reputation, or evidence of specific instances of conduct)
is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to
prove conduct of the defendant in conformity with the character or trait of character and
is offered after evidence that the victim had a character for violence or a trait of character
tending to show violence has been adduced by the defendant . . . .”
       “The trial court has wide discretion in determining the appropriate scope of cross-
examination” (People v. Lucas (2014) 60 Cal.4th 153, 228, disapproved on another
ground in People v. Romero (2015) 62 Cal.4th 1, 53, fn. 19), and there was no abuse of
that discretion here. Before the court made its ruling, a parade of defense witnesses
testified to Nelsey’s volatile nature, her threats of extreme violence, and her physical
confrontations with Chavez, Sr. and others. In response, the prosecution was authorized
under Evidence Code section 1103 to elicit evidence that defendant had also behaved
violently at one point in the past. Defendant contends that his “evidence concerning
Nelsey Flores was presented not to establish that Flores was the aggressor against
appellant on the day of the stabbings, but to encourage the jury to conclude that Flores,
rather than appellant, was the person who fatally stabbed Levit Chavez, Sr.” However,
that evidence was relevant to defendant’s claim of self-defense, as well as to the issue of
who stabbed Chavez, Sr. Moreover, the evidence of Nelsey’s propensity for violence
went beyond violence or outbursts directed at Chavez, Sr. for his infidelity. Witnesses
described her as a crazy woman with a violent attitude who was easily heated and had
threatened others besides Chavez, Sr. Defendant contends that he presented “very
minimal evidence” of Nelsey’s violent character that “did not paint a portrait of a violent
person.” We disagree. The intent and cumulative effect of the detailed and colorful
defense testimony was to portray Nelsey as someone capable of deadly violence. The
trial court could reasonably decide that this testimony opened the door to evidence that
defendant had himself been violent, on one occasion and in some unspecified manner.
       The brief cross-examination of defendant’s mother was also in no way central to
the prosecution’s case. The prosecutor did not consider it important enough to even


                                              7
mention in closing argument. The strong case against defendant rested primarily on other
evidence, such as his confession, the neighbors’ observations on the day of the incident,
Rudy’s account on that day and at trial, and Nelsey’s testimony. Thus, any error in
admitting the evidence to which defendant objected was harmless under any standard.
                                   III. DISPOSITION
       The judgment is affirmed.



                                                 _________________________
                                                 Siggins, J.


We concur:


_________________________
McGuiness, P.J.


_________________________
Pollak, J.




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