Malvia

MEMORANDUM **

Joseph I. Malvia appeals pro se the district court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his conviction for drawing or exhibiting a firearm in the presence of a motor vehicle occupant. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we affirm.

We review de novo the district court’s denial of a habeas petition. Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999). Malvia contends that the trial court erred by failing to instruct the jury on the theory of self-defense under California Jury Instruction (“CALJIC”) 9.07.

Contrary to Malvia’s assertion, self-defense is an affirmative defense; the lack of self-defense is not an element of the offense charged. See McKelvey v. United States, 260 U.S. 353, 356-57 , 43 S.Ct. 132 , 67 L.Ed. 301 (1922) (stating the rule that “an indictment ... founded on a general provision defining the elements of an offense ... need not negative the manner of an exception ... it is incumbent on one who relies on such exception to set it up and establish it.”); accord Echavarriar-Olarte v. Reno, 35 F.3d 395, 399 (9th Cir. 1994); In Re Andre R., 158 Cal.App.3d 336, 341-342 , 204 Cal.Rptr. 723 (1984) (stating…