Acosta

MEMORANDUM **

California state prisoner Martin Muniz Acosta appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his convictions for threats to commit a crime resulting in death or great bodily injury, possession of a firearm by a felon, possession of ammunition by a felon and resisting a peace officer in the performance of his duties. We have jurisdiction pursuant to 28 U.S.C. § 2253 . We affirm in part, reverse in part, and remand with instructions to conditionally grant the writ of habeas corpus.

Muniz Acosta contends that California Jury Instructions Nos. 2.50.02 and 2.50.1, as given in his case, violate due process because they impermissibly lower the government’s burden of proof by permitting conviction for domestic violence offenses under a preponderance of evidence standard. In light of our decision in Gibson v. Ortiz, 387 F.3d 812 (9th Cir.2004), we agree. We conclude that the California Court of Appeal’s decision affirming Muniz Acosta’s conviction for threats to commit a crime resulting in death or great bodily injury was contrary to clearly established federal law, as determined by the Supreme Court of the United States. See 28…