ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a California prisoner proceeding with an amended application for writ of habeas corpus under 28 U.S.C. § 2254. In addition, petitioner requests an evidentiary hearing on his claim of ineffective assistance of counsel. Petitioner was convicted in 2001 of multiple counts, including second degree and attempted murder, assault with a firearm and discharging a firearm. With sentence enhancements, he is serving a determinate term sentence of seven years and an indeterminate term sentence of 65-years-to-life.
Petitioner seeks relief on the grounds that: (1) two inapplicable 25-to-life enhancements were imposed on him; (2) the prosecutor discouraged co-defendants from testifying at his trial; (3) trial counsel rendered ineffective assistance of counsel by not objecting to the prosecutor's actions and in failing to press for the admission of co-defendant Judo Vang's statement to the police; (4) petitioner's sentence was based on a theory of liability dependent on facts not found by the jury; (5) the trial court imposed gang enhancements in violation of the plea bargain, and (6) petitioner was prejudiced by the cumulative wrongs in the foregoing. Upon careful consideration of the record and the applicable law, the undersigned will order that the request for an evidentiary hearing be denied and recommend that petitioner's application for habeas corpus relief be denied.
I. Factual And Procedural Background
On direct appeal, the California Court of Appeal summarized the facts presented at petitioner's trial as follows:
On April 23, 1998, at approximately 7:30 p.m., Nai Saechao, his wife Muey Saetern, and Lai Saechao went to a park to play basketball. Nai drove his car with Lai in the front passenger seat and Muey in the rear seat. When Nai stopped his car at the park, a Toyota Camry and a Honda Civic parked as to prevent Nai's car from moving.
The Camry and the Civic contained Hmong gang members from two related street gangs: Tiny Little Rascals and Masters of Destruction (MOD).
Defendant was driving the Camry. He had four passengers: Mong Cha in the right front seat, Chi Vang in the left rear seat, Pheng Vang in the middle rear seat, and Judo Vang in the right rear seat. Tou Vue was driving the Civic. Cha Vue was in the right front seat. Benjamin Xiong and an unidentified person were in the rear seats.
As Lai Saechao got out of Nai Saechao's car, defendant got out of the Camry and asked Lai about his gang affiliation. Lai responded that he was not a member of any gang. For about 20 seconds, defendant and Mong Cha continued to ask Lai what gang he was affiliated with. Lai heard someone state, "this is MOD," and then heard a gun click. Xiong saw defendant holding a chrome handgun. According to Xiong, defendant pointed the gun into Nai Saechao's car and fired several shots.
When Lai Saechao heard the hand gun click, he began to run from the area. As he fled, he was shot once in the back and fell to the ground. All the shots sounded like they had come from the same weapon.
Muey Saetern did not see who fired the shots. When the shooting commenced, she put her head down and ultimately was shot once in the left foot.
After the shooting, defendant reentered the Camry and drove away. As he drove, he handed the handgun to Mong Cha, who sat with the weapon on his lap. The other weapon, a silver handgun, was next to Mong Cha.
Nai Saechao suffered five gunshot wounds, one of which was fatal. Defense Case Defendant testified on his own behalf. He admitted being present at the park on the night of the shooting and admitted possessing a handgun, but he denied firing any of the shots.
Defendant pulled his Camry next to Nai Saechao's car because one of defendant's passengers wanted to see who was in Nai's car. Defendant heard shots fired shortly after he and two passengers stepped out of the Camry. Believing he was being shot at, defendant drew his handgun and pointed it in the direction of Lai Saechao. However, by the time he did so, Lai had already been shot and was on the ground.
Defendant testified that when he heard the shots, he turned to look in the direction where the shooting was coming from. He saw Mong Cha, whom he believed was the shooter.
Shortly after the shooting, Judo Vang told police that he had seen Mong Cha fire the shots into Nai Saechao's car. Vang also told police that when defendant reentered his car after the shooting, he stated that his gun had jammed and that he was unable to fire it. During trial, outside the jury's presence, the defense called Vang to testify but he refused to answer any questions, even after being advised that he no longer had Fifth Amendment protection regarding the facts of the case. The trial court found him in contempt and had him removed from the courtroom.
On May 22, 2001, a jury convicted petitioner of second degree murder of Nai Saechao (Cal. Pen. Code §187(a), 189); attempted murder of Lai Saechao (Cal. Pen. Code §187, 664); assault with a firearm on Muey Saetern (Cal. Pen. Code §245(b)); and discharging a firearm at an occupied motor vehicle (Cal. Pen. Code § 246). CT 222-228. As noted by the state court of appeal, the jury found a total eight enhancements true:
2.*fn1 [A] principal was armed with a firearm [Cal. Pen. Code §12922(a)(1)]
3. [D]efendant personally inflicted great bodily injury on Nai Saechao [§12022.7(a)]
4. [D]efendant personally used a firearm [§12022.5(a)(1) and §12022.53(b)]
5. [D]efendant was a principal and a principal personally used a firearm [§12022.53(b) and (e)(1)]
6. [D]efendant personally and intentionally discharged a firearm [§12022.53(c)]
7. [D]efendant was a principal and a principal personally and intentionally discharged a firearm [§12022.53(c) and (e)(1)]
8. [D]efendant personally and intentionally discharged a firearm causing great bodily injury and death to Nai Saechao [§12022.53(d)]
9. [D]efendant was a principal and a principal personally and intentionally discharged a firearm causing great bodily injury to Nai Saechao [§12022.53(d) and (e)(1)]
Defendant admitted an enhancement alleging he and his co-defendants committed the offenses for the benefit of, at the direction of, and in association with, a criminal street gang [§186.22(b)(1)]
Resp't's Ex. C at 2-3; CT 222-228.
On August 2, 2001, petitioner filed a motion for new trial. See CT 229 et seq. The motion was based on a new declaration of Mong Cha, who stated that he in fact was the shooter, and similar corroborating testimony from Judo Vang. CT 241-242, 256-258. On December 28, 2001, the court held a hearing on petitioner's motion for new trial. RT 1203 et seq. Following the hearing and briefing by the parties, the court weighed the evidence that had come in at trial with the newly available evidence from Cha and Vang. While the court agreed that Cha's and Vang's testimony raised a reasonable doubt as to the identity of the shooter, it concluded there was sufficient evidence presented at trial and at the motion for new trial to convict petitioner as an aider and abettor to the crimes. As a principal and aider and abettor, the court offered, the petitioner would be liable under the natural and probable consequences doctrine for the acts of the shooter. Therefore, the ...