FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on July 3, 1997 in the San Joaquin County Superior Court on charges of first degree murder, attempted murder, and committing the charged offenses while armed with a firearm. Petitioner seeks relief on the grounds that: (1) the trial court violated his right to a fair trial when it admitted evidence of petitioner's gang affiliation and evidence of guns not used in the charged shooting; (2) his trial counsel rendered ineffective assistance; (3) jury instruction error violated his right to a fair trial; and (4) the evidence was insufficient to support his conviction on the charge of attempted murder. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
PROCEDURAL AND FACTUAL BACKGROUND*fn1
Sixteen-year-old Andy Tran suffered a fatal gunshot wound to his chest as he ducked behind the couch in a friend's living room. An adult houseguest in the home, Sen Dang, was also shot, but not fatally, during the same incident. A jury convicted defendants Kiet Ahn (sic) Tran (Kiet), Si Van Dang (Si), Nhat Minh Nguyen (Nhat), and Len Nguyen (Len) of the first degree murder of Andy Tran (Andy) (Pen. Code, § 187)*fn2 and the attempted murder of Sen Dang (§§ 664/187).*fn3
I. The Shooting and Its Aftermath
At the time of these events, both defendant Len and the victim, Andy, were students at Plaza Robles High School, a continuation high school. Len attended the first daily session, which ended at 10:15 each morning, and Andy attended the second session, which began at 10:25 a.m.
Andy was a close friend of Cuong Phan's. Cuong Phan lived with his family across the street from the school, and Andy often went to his house (the Phan house) before or after school. Although Len had also visited the Phan house, Cuong Phan observed that Len and Andy did not get along.
On March 6, 1996-the day before the shooting-shortly after the first session of the high school, Len and Andy got into a fight outside the Phan house after Andy told Len to shut the door to the house and Len failed or refused to do so. The fight did not last long. And when it was over, Cuong Phan's cousin took Len home.*fn4
Len immediately contacted defendant Si and reported that he had experienced a problem with Andy. All four defendants then went to the Phan house, searching for Andy and Cuong Phan, but neither were there.
The next morning, Si called defendants Kiet and Nhat to wake them, picked them up at their respective homes, and drove them to the Phan house, where they arrived about 10:10 a.m. Cuong Phan was inside with his family, his parents' friend Sen Dang, and his friends Phillip Nguyen and Huy Vo. Si approached the Phan house and knocked on the front door. When no one answered, Si returned to his parked car and stood smoking and talking with Kiet and Nhat.
A few minutes later, Si, Kiet, and Nhat saw Andy's mother drop him off for the second school session. Passing a short distance from where the three defendants then stood, Andy approached the Phan house, knocked, and was admitted.
Si waited for Len. As the first school session ended, Len approached the other defendants standing near Si's car. The four appeared to talk seriously for a moment. Then, Si, Nhat, and Kiet took off their jackets and put them into the car, and all of the defendants approached the Phan house. Cuong Phan testified at trial that through a window, he saw that Si and two others were approaching the house.
Suddenly, the front door opened. Testimony was in conflict as to whether defendants knocked on the door and were admitted by someone inside the house, or merely let themselves in. In any event, defendants stepped into the living room entry or stood just outside the entry as Cuong Phan, Andy, Phillip Nguyen, and Huy Vo simultaneously entered the living room from the hall.*fn5 Sen Dang was also in the living room, having slept the night on the couch.
A witness across the street from the Phan house testified that as defendants entered the house, they "threw up" their hands in a quick gesture, as if to indicate that they were "calling someone out ... to fight."
Cuong Phan told Si to "[g]et the fuck out of my house." Si responded, "[F]uck you," and asked Kiet for the gun. Kiet pulled a black handgun from his waistband and handed it to Si; Si started shooting in Andy's direction. Andy ducked behind the couch, but was killed by a bullet that pierced the couch and went through his chest. Once struck by the bullet, Andy fell face down onto the floor. Sen Dang was hit near the left ankle by a bullet.
Witnesses in the house testified that Si began shooting immediately or within five seconds of his exchange with Cuong Phan. Witnesses across the street likewise testified that Si started shooting "right away" after entering the house at virtually the same moment that the door opened. Those who heard or saw the shots generally agreed that all of the shots were fired from the vicinity of the front door, although testimony on the number of shots fired varied from between three and five to eight.
Defendants ran to Si's car, but it failed to start. They accordingly fled on foot. Cuong Phan appeared to give chase, but quickly returned to the house. Some witnesses testified that Cuong Phan had no gun and that his hands were empty. However, Si claimed that Cuong Phan had a gun as he chased defendants and claimed that he heard gunshots.
Responding quickly to the 911 call from the Phan house,*fn6 police recovered a total of five spent nine-millimeter shell casings from the linoleum living room entry and just outside the front door. Police also searched outside the house and around the block for other shell casings and blood, but found none. Investigating Department of Justice criminalists concluded, based on the location of the bullet holes, that all of the shots had been fired from the direction of the front door toward the couch.
However, a single spent .380 shell casing was found behind the couch near where Andy lay after he was shot. Both officers and criminalists observed that the casing appeared to have dust on it and concluded that it was neither recently placed there nor involved in the shooting.*fn7 A criminalist also noted that there was no evidence of powder marks on the back of the couch or bullet strikes near the front door so as to suggest that the .380 shell casing had been discharged recently. A thorough search of the Phan house after the shooting revealed no evidence of weapons or live ammunition, and officers found no weapons on Andy, Cuong Phan, Phillip Nguyen, or Huy Vo.
After hiding for a while in a neighbor's yard, defendants contacted a friend, Hung Nguyen, who picked them up in his car.
Later that day, police observed Hung Nguyen's car (in which Kiet was then the sole passenger) arrive at Si's house, where Hung Nguyen retrieved a black bag, which he put into the car's passenger compartment. Hung Nguyen later testified that Si had asked him to "save" the bag, and that Si had agreed to pick it up the next day. The black bag contained a sawed-off shotgun without a serial number and several boxes of ammunition. In the trunk, police also found a shotgun and a purple gym bag that contained ammunition and three more loaded guns, including a loaded nine-millimeter pistol. In total, more than 200 rounds of ammunition were recovered from the car.
By evening on the day of the shooting, all four defendants and Hung Nguyen had been apprehended. Police observed that Si had a small scratch on the back of his leg.
Defendants waived their Miranda*fn8 rights and agreed to be interviewed by police. Nhat admitted that he was at the house during the shooting and said that his fingerprints might be on the gun-a black semiautomatic nine-millimeter pistol-because he had carried the gun as he ran from the scene, and later hid it in a neighboring yard. Len also admitted that he had gone to the Phan house on the morning of the shooting. On the other hand, Kiet denied being in the house when Andy was shot; he told police that he had waited in the car while the others were inside, and ran when he heard gunfire.
The nine-millimeter pistol recovered from the purple bag in the trunk of Hung Nguyen's car proved to be the murder weapon. And a microscopic evaluation of the nine-millimeter shell casings found at the Phan house revealed that all were fired by that pistol, including the bullet that killed Andy.
The fingerprints of Si and Nhat were recovered from Si's car outside the Phan house. Kiet's palm print was recovered from the shotgun found in the trunk of Hung Nguyen's car.
Defendants were charged with the first degree murder of Andy (§ 187 [count 1] ) and the attempted murder of Sen Dang (§§ 664/187 [count 2] ). Arming and personal firearm use enhancements (§§ 12022, subd. (a)(1), 12022.5, subd. (a)(1)) were alleged against all defendants except Len, against whom only an arming enhancement was alleged (§ 12022, subd. (a)(1)). As to Si only, it was also alleged that he had inflicted great bodily harm against Sen Dang (§ 12022.7). Hung Nguyen was charged as an accessory to murder after the fact. (§ 32 [count 3] ).
Hung Nguyen and the defendants (except for Len) were also charged with receiving a stolen nine-millimeter, semiautomatic pistol (§ 496, subd. (a) [count 4] ), and Kiet, Len, and Hung Nguyen were charged with other weapon offenses not relevant here.
II. The Prosecution Theory
The prosecution's theory at trial was that defendants were members of a criminal street gang called the Mafia Asian Crew, that they believed Andy to be a member of a rival street gang, and that the shooting was a "home invasion murder" committed in retaliation for Andy's fight with Len the previous day.
In support of that theory, the prosecution introduced evidence that Nhat told a jail classification officer*fn9 after his arrest that he was a member of the Mafia Asian Crew (MAC) and that its members had problems with gangs (among others) named Vietnamese (or Viet) Asian Pride (VAP) and Lifetime Brothers. Nhat also said that Andy and most of the others at the Phan house were members of the Lifetime Brothers.
Si's girlfriend, Ahn Phan, told police that "Si and his friends*fn10 belonged to MAC" and that MAC members were having problems with members of the gang VAP.*fn11
Si advised the classification officer that if he were housed in jail with members of the Lifetime Brothers or VAP, there would be trouble because Andy was a member of one of those gangs-although not too much trouble because most of them were juveniles. Si also said that his friends might be recognized as gang members. Although Si denied gang membership for himself, when officers told him that his girlfriend had identified the gang in which he was a member, he agreed to tell the truth if they named the gang. The officer responded, "You got it. M.A.C. Sorry." And Si responded, "You got me, huh." Checking, the officer asked, "Okay, so, is that true?" And Si responded, "Yeah. No. Yeah."
A student watching the Phan house from across the street on the morning of the shooting testified that she thought there might be gunplay when the defendants suddenly appeared in a group at the Phan house because they had not "gotten along" with Andy and his friends for a long time.
Sometime before trial, Hung Nguyen pleaded no contest to the charges against him. He testified under a grant of immunity that after the shooting, Kiet had retrieved from Kiet's house the purple gym bag that was in his car trunk and which later proved to contain the murder weapon, and a long wrapped item that could have been the shotgun found in his trunk.
Of the defendants at trial, only Si testified. He admitted shooting Andy, but testified that he had done so in self-defense.
Si testified that immediately after he entered the Phan house, Andy confronted him with a .380-caliber automatic handgun and shot twice; one bullet grazed Si's left leg.*fn12 Only then, after Si turned to run out the door and yelled that Andy was shooting at him, did Kiet hand him a gun, with which Si then returned fire into the house because he knew Len was "trapped" there.*fn13 According to Si, he and Andy exchanged several volleys of gunfire, with Andy firing six or seven shots, and Si shooting about five.*fn14 Even after Si heard a scream, Andy continued to shoot at him. After he and the other defendants ran from the Phan house, Cuong Phan chased after them, and Si heard three or four additional shots fired at him.
At trial, Si also denied that he went to the Phan house on the day of the shooting to beat up Andy in retaliation for his having fought with Len, although he knew that there would be "more trouble" if he walked into the Phan house with Len. He adopted his police interview statement that he had gone to the Phan house that day to collect money from Cuong Phan's cousin, to protect Len, and to "escort" him home. Of Len's dispute with Andy, Si opined that it was disrespectful for Andy to have been fighting with Len and further that it would be disrespectful to Cuong Phan's cousin were he to beat up Andy in the Phan house while the cousin was at home.
Finally, Si denied ever having been a member of MAC and said that Nhat alone among the defendants had been a member. Si admitted, however, that he had lied to police during his interview about who shot Andy.
In support of the theory that Si shot Andy in self-defense, Nhat introduced the testimony of Ben Schiefelbein, a Ph.D. in chemistry, who testified that he found four particles on Andy's right hand containing elements that are unique to gunshot residue and four particles on his left hand that are consistent with, but not unique to, gunshot residue. Under cross-examination by the prosecutor, however, Schiefelbein acknowledged that Andy had not fired a gun because, had he done so, more particles would have been found on his hands. The presence of so few particles on Andy's hand could be explained, in Schiefelbein's opinion, by the fact that several gunshots in a relatively small room could produce a "cloud of gunshot residue," which would "settle on everything," including Andy's hands.
Another forensic scientist, Michelle Fox, did not examine evidence from the scene, but testified on Nhat's behalf that the number of particles found is not generally significant to an analysis of the presence of gunshot residue and that gunshot residue can deposit on someone's hand only if the gun is fired within a few feet of the person.
Anticipating Si's assertion that he had been shot by Andy, the prosecutor introduced the following evidence: None of the boys running from the scene were observed limping; the pants that Si had been wearing had no bullet hole; Si's girlfriend had told police that Si did not report that he had been shot, which he would have done had it happened; and the ...