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Nguyen v. Kane

November 12, 2009

NHAT MINH NGUYEN, PETITIONER,
v.
ANTHONY KANE, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 1997 conviction on charges of first degree murder, attempted murder, and receiving stolen property, and the sentence of twenty-five years to life in prison imposed thereon.

Petitioner raises seven claims that his prison sentence violates the Constitution: (1) the trial court improperly failed to instruct the jury on "target offenses," (2) the prosecutor engaged in reversible misconduct; (3) the trial court erred in admitting evidence of gang membership and other guns and ammunition not used in the charged shooting, (4) there was insufficient evidence to support petitioner's convictions, (5) the trial court erred in admitting evidence of an unredacted videotaped interview with co-defendant Si Dang, (6) the trial court erred in giving jury instructions on lying in wait and transferred intent, and (7) the cumulative impact of these alleged errors required reversal.

PROCEDURAL BACKGROUND

Petitioner appealed his conviction in the California Court of Appeal, Third Appellate District. (Answer, Appendix A.) The Court of Appeal affirmed the conviction on May 15, 2003. (Answer, Appendix B.)

Petitioner filed a petition for review in the California Supreme Court, raising the following claims: (1) the trial court improperly failed to instruct the jury on "target offenses," (2) the prosecutor engaged in reversible misconduct; (3) there was insufficient evidence to support petitioner's convictions, (4) the trial court erred in admitting evidence of petitioner's gang membership, (5) the trial court erred in admitting evidence of other guns not used in the charged shooting, (6) the trial court erred in admitting evidence of an unredacted videotaped interview with co-defendant Si Dang, (7) the trial court erred in giving jury instructions on lying in wait, and (8) the cumulative impact of these alleged errors required reversal. (Appendix C.) The petition for review was denied on October 24, 2001, without comment. (Append ix D.)

The instant petition was filed on September 1, 2004. Respondent filed an answer on December 2, 2004. Petitioner filed a traverse on January 5, 2005.

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 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

(People v. Tran, et al., slip op. at 1.)

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.

III. The Defense Case

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 wound on Si's leg was a mere scratch, similar to one found on Kiet's wrist after his arrest.

Finally, the defense introduced evidence from one neighbor who testified that on the day of the shooting she saw three or four boys running, and one other boy, who appeared to be chasing the others and holding a gun. Thereafter, she heard one or two gunshots, although she saw no one shoot.

IV. The Convictions

The jury convicted defendants of the first degree murder of Andy, for which each defendant subsequently received a sentence of 25 years to life, and of the attempted murder of Sen Dang, for which each defendant received a concurrent sentence of seven years. The jury also found that in committing these offenses, Si and Kiet were personally armed with a firearm (§ 12022, subd. (a)(1)) and that Si both personally used a firearm (§ 12022.5, subd. (a)(1)) and intended to inflict great bodily injury upon Sen Dang (§ 12022.7, subd. (a)).

(People v. Tran, et al., slip op. at 4-15.)

ANALYSIS

I. Standards for a Writ of Habeas Corpus

Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).

Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'") The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002).

II. Petitioner's Claims

A. First Claim

Petitioner's first claim is that the trial court erred in failing to give jury instructions on "target offenses" for purposes of first degree murder liability as an aider and abettor under the "natural and probable consequences" doctrine. (Pet. at 1-3.)

Respondent argues that the state court's resolution of this claim was reasonable under Schad v. Arizona, 501 U.S. 624, 636 (1991)(in evaluating whether Arizona's definition of first degree murder as a single crime which included both premeditated murder and felony murder was unconstitutional, court held where "a State's courts have determined that certain statutory alternatives are mere means of committing a single offense, rather than independent elements of a crime, we simply are not at liberty to ignore that determination and conclude that the alternatives are, in fact, independent elements under state law.") Respondent contends this court may not ignore California's determination that the general rules of accomplice liability, such as the description and identification of target crimes under the natural and probable consequences doctrine, are not elements of the crime of murder. People v. Prettyman, 14 Cal.4th 248, 271 (1996). Thus, the state court was not required by the federal constitution to instruct the jury on specific target crimes under California's natural and probable consequences doctrine, and the trial court's failure to so instruct was error only if "there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution." Estelle v. McGuire, 502 U.S. 62, 72 (1991).

The last reasoned rejection of this claim is the decision of the California Court of Appeal for the Third Appellate District on petitioner's direct appeal. The state court rejected this claim on the ground that:

A. Failure to Instruct on Target Crimes Was Not Reversible Error

Defendants complain that the trial court's instruction on the natural and probable consequences doctrine "did not either identify the target crime or define its elements." They argue that "the failure to specify and define the target offense(s) violates the federal [C]onstitution if there is a reasonable likelihood that the jury relied on the 'natural and probable consequences' instruction to find the defendant[s] guilty of a crime such as murder on the basis of conduct which would not naturally and probably lead to the commission of that crime."

We agree that the trial court failed to identify the target crimes, but any error was harmless.

As noted earlier in this opinion, "a person who aids and abets a confederate in the commission of a criminal act is liable not only for that crime (the target crime), but also for any other offense (nontarget crime) committed by the confederate as a 'natural and probable consequence' of the crime originally aided and abetted." (Prettyman, supra, 14 Cal.4th at p. 254, 58 Cal.Rptr.2d 827, 926 P.2d 1013.) "To convict a defendant of a nontarget crime as an accomplice under the 'natural and probable consequences' doctrine, the jury must find that, with knowledge of the perpetrator's unlawful purpose, and with the intent of committing, encouraging, or facilitating the commission of the target crime, the defendant aided, promoted, encouraged, or instigated the commission of the target crime. The jury must also find that the defendant's confederate committed an offense other than the target crime, and that the nontarget offense perpetrated by the confederate was a 'natural and probable consequence' of the target crime that the defendant assisted or encouraged." (Ibid.)

Although the jury need not unanimously agree on the target crime that the defendant aided and abetted, its members each "must be convinced, beyond a reasonable doubt, that the defendant aided and abetted the commission of a criminal act, and that the offense actually committed was a natural and probable consequence of that act. . . . [A] conviction may not be based on the jury's generalized belief that the defendant intended to assist and/or encourage unspecified 'nefarious' conduct. To ensure that the jury will not rely on such generalized beliefs as a basis for conviction, the trial court should identify and describe the target or predicate crime that the defendant may have aided and abetted." (Prettyman, supra, 14 Cal.4th at p. 268, 58 Cal.Rptr.2d 827, 926 P.2d 1013, fn. omitted.)

Such identification of the target crime "facilitate[s] the jury's task of determining whether the charged crime allegedly committed by the aider and abettor's confederate was indeed a natural and probable consequence of any uncharged target crime that, the prosecution contends, the defendant knowingly and intentionally aided and abetted." (Prettyman, supra, 14 Cal.4th at p. 267, 58 Cal.Rptr.2d 827, 926 P.2d 1013.)

However, although the erroneous failure to identify and define the potential target offenses renders the instruction ambiguous, the error is not grounds for reversal under the federal Constitution unless there is a reasonable likelihood the jury " misappl[ied] the doctrine" (Prettyman, supra, 14 Cal.4th at pp. 272-273, 58 Cal.Rptr.2d 827, 926 P.2d 1013; People v. Lucas (1997) 55 Cal.App.4th 721, 731, 64 Cal.Rptr.2d 282) or, for purposes of state law, unless it is reasonably probable the trial outcome would have been different absent the error (id. at p. 274, 64 Cal.Rptr.2d 282).

In this case, the jury was instructed in partial compliance with the 1992 revision of CALJIC No. 3.02 (1992 rev.) (5th ed.1988) as follows: "One who aids and abets the other in the commission of the crime or crimes is not only guilty of those crimes but is also guilty of any other crime committed by a principal[,] which is a natural and probable consequence of the crime or crimes originally aided and abetted. [¶] You must determine whether a defendant is guilty of the crimes originally contemplated[,] and, if so, whether the crimes charged in Counts 1 and 2 were a natural and probable consequence of the originally contemplated crime."*fn15

The instructions neither identified nor defined the potential target offenses.*fn16 Defendants' objection to the instruction was timely.

But the failure to specify a target crime was not prejudicial because there is little likelihood that the jury would have misapplied the doctrine. In Prettyman, supra, 14 Cal.4th 248, 58 Cal.Rptr.2d 827, 926 P.2d 1013, our Supreme Court explained that the failure to identify and describe the target crime created a risk that the target was based on non-criminal nefarious conduct (id. at p. 268, 58 Cal.Rptr.2d 827, 926 P.2d 1013) or "that the jury might engage in unguided speculation" and misapply the instruction (id. at p. 272, 58 Cal.Rptr.2d 827, 926 P.2d 1013). But in this case, there was no reasonable likelihood that the jury misapplied the doctrine for three reasons.

First, there was no risk that the jury relied on non-criminal behavior as the target offense, notwithstanding defendants' contentions that the jury might have done so. The trial court instructed the jury to determine whether the crimes charged "were a natural and probable consequence of the originally contemplated crime." (Italics added.) Thus, the jury would not have applied non-criminal behavior as the basis for such a finding. (See Prettyman, supra, 14 Cal.4th at p. 273, 58 Cal.Rptr.2d 827, 926 P.2d 1013.) Although defendants argue that the jury might have relied on "gang retaliation" as the target offense, as suggested by the prosecutor, the only such retaliation here would have been a criminal act--an assault upon Andy. Thus, we are confident the jurors would have relied on a crime as the target offense. We hasten to add that in the context of gang rivalry, courts have had little difficulty in concluding that assaults can naturally and reasonably foreseeably escalate into a shooting, regardless of whether any particular defendant knew the principal intended to use a gun. (People v. Montes (1999) 74 Cal.App.4th 1050, 1055-1056, 88 Cal.Rptr.2d 482; see People v. Gonzales (2001) 87 Cal.App.4th 1, 10, 104 Cal.Rptr.2d 247.)

Second, having found defendants guilty of the first degree murder of Andy, it is highly improbable that the jury would have based the originally contemplated (target) crime on anything other than that offense. (Cf. People v. Montano, supra, 96 Cal.App.3d at pp. 225-227, 158 Cal.Rptr. 47.) That, after all, was the only other crime found by the jury against defendants. Under the circumstances here, with Si's shooting in a crowded room with the intent to kill Andy, it seems obvious that the attempted murder of Sen Dang was necessarily the natural and probable consequence of the first degree murder of Andy.

Finally, as for any potential misapplication of CALJIC No. 3.02 to the murder of Andy, it is highly unlikely that the jury found that Andy's premeditated and deliberate murder itself was the natural and probable consequence of any target crime, including assault (although it legally could have in the context of gang rivalries (People v. Montes, supra, 74 Cal.App.4th at pp. 1055-1056, 88 Cal.Rptr.2d 482)) because the jury was instructed that it should use simple assault only as a lesser included offense for attempted murder and the murder happened much too quickly for the jury to view the murder as a natural escalation of any assault.

This case is distinguishable from People v. Hickles (1997) 56 Cal.App.4th 1183, 66 Cal.Rptr.2d 86, cited by Len and Nhat. There, "the conflicts in the evidence were such that it [could not] be said the only target offense shown by the evidence was one that would support a murder conviction under the natural and probable consequences doctrine." (Id. at pp. 1195-1196, 66 Cal.Rptr.2d 86.) In contrast, here, the jury's verdict shows that it determined that defendants had premeditatedly and deliberately intended to kill Andy, and the wounding of Sen Dang was necessarily the natural and probable consequence of shooting in a crowded room to kill Andy.

Accordingly, we do not believe that there is a reasonable likelihood that the jury misapplied the doctrine. Nor is it reasonably probable that the trial's outcome would have been different in the absence of the trial court's instructional error. (Prettyman, supra, 14 Cal.4th at p. 274, 58 Cal.Rptr.2d 827, 926 P.2d 1013; see People v. Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.)

(People v. Tran, et al, slip op. at 63-70.)

The state appellate court's interpretation and analysis of the "natural and probable consequences" doctrine, a state court construct, may not be challenged in this federal habeas corpus action. State courts are "the ultimate expositors of state law," and this court is "bound by the state's construction except when it appears that its interpretation is an obvious subterfuge to evade the consideration of a federal issue." Peltier v. Wright, 15 F.3d 860, 862 (1994) (quoting Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (construing state court judgment)). See also Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir. 1989) (construing state statute); Melugin v. Hames, 38 F.3d 1478, 1482 (9th Cir. 1994) (construing state criminal statute). There is no evidence of subterfuge here. However, a "claim of error based upon a right not specifically guaranteed by the Constitution may nonetheless form a ground for federal habeas corpus relief where its impact so infects the entire trial that the resulting conviction violates the defendant's right to due process." Hines v. Enomoto, 658 F.2d 667, 673 (9th Cir. 1981) (citing Quigg v. Crist, 616 F.2d 1107 (9th Cir. 1980)). See also Lisenba v. California, 314 U.S. 219, 236 (1941); Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999). In order to raise such a claim in a federal habeas corpus petition, the "error alleged must have resulted in a complete miscarriage of justice." Hill v. United States, 368 U.S. 424, 428 (1962).

The trial court instructed the jury on aiding and abetting and liability for natural and probable consequences, as follows:

AIDING AND ABETTING - DEFINED

A person aids and abets the commission or attempted commission of a crime when he or she,

1. With knowledge of the unlawful purpose of the perpetrator and

2. With the intent or purpose of committing or encouraging or facilitating the commission of the crime; and

3. By act or advice aids, promotes, encourages or instigates the commission of the crime.

A person who aids and abets the commission or attempted commission of a crime need not be present at the scene of the crime.

Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting.

Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.

PRINCIPALS - LIABILITY FOR NATURAL AND PROBABLE CONSEQUENCES

One who aids and abets another in the commission of a crime or crimes is not only guilty of those crimes, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime or crimes originally aided and abetted.

You must determine whether a defendant is guilty of the crimes originally contemplated, and if so, whether the crime charged in Counts I or II were a natural and probable consequence of the originally contemplated crime.

(CT 1348-49.)

Petitioner has failed to demonstrate a due process violation. As explained by the state appellate court, the record reflects that petitioner and two or three other men entered Cuong Phan's home with the understanding that Len and the others would assault the victim. Under these circumstances, petitioner's conviction of aiding and abetting first degree murder and attempted murder does not constitute a complete miscarriage of justice.

As explained by the California Court of Appeal, the instruction on "natural and probable consequences" did not instruct the jury that it must find a certain mental state if the specified factors were proven. Rather, the thrust of the instruction was that the jury could not render a guilty verdict unless the specified factors were established. The instruction merely allows, but does not require, the jurors to make a guilty finding if they found the underlying factors true. It did not instruct the jurors to infer intent or any other element of the crime charged against petitioner. This court also notes that petitioner's jury was instructed that a defendant could not be found guilty unless the prosecution proved him guilty beyond a reasonable doubt.

(CT at 1346.) Accordingly, the instructions at petitioner's trial, considered together, did not permit a rational juror to believe that intent could be found without proof by the prosecution of all elements beyond a reasonable doubt.

Petitioner appears to be arguing that he was denied due process because the instruction on "natural and probable consequences" allowed the jurors to convict him of murder or attempted murder even though they may have found that he did not act with the requisite intent to aid and abet those crimes. However, the jury instructions belie that assertion. If the jury believed petitioner's testimony/defense, then it could not have found him guilty of aiding and abetting assault under the instructions given. The instructions required the jury to find, among other elements, that petitioner: (1) had knowledge of Len's unlawful purpose, (2) had intent to encourage or facilitate the commission of the crime, and (3) aided, promoted or encouraged (by act or advice) the commission of the crime. (CT at 1348.) Therefore, the guilty verdict unambiguously indicates that the jury concluded petitioner intended to encourage or facilitate the commission of the target crime. See Solis v. Garcia, 219 F.3d 922, 927-28 (9th Cir. 2000). In addition, as noted by the Court of Appeal, the facts of this case did not give rise to a finding of negligence. Accordingly, this court need not decide whether the "natural and probable consequences" doctrine would have application to a case involving mere negligence. Raines, 363 U.S. at 21.

For all of the reasons explained above, the opinion of the California Court of Appeal with regard to petitioner's claim of jury instruction error is not contrary to or an unreasonable application of federal law, nor is it based on an unreasonable determination of the facts of this case. Accordingly, petitioner is not entitled to relief on his first claim.

B. Second Claim

Petitioner's second claim alleges that the "prosecutor's repeated and wide-ranging misconduct was so pervasive as [to] infect the trial with such unfairness as to make [petitioner's] conviction a denial of his Fourteenth Amendment right to due process." (Pet. at 14.) As respondent points out, petitioner provided no factual basis for this claim, and argues this claim should be summarily denied. The traverse did not rectify petitioner's failure to articulate facts in support of this claim, but simply referred the court to his state court filings. The facts underlying the misconduct claims petitioner included in his petition for review before the California Supreme Court relate to the prosecutor's comments during closing argument. (Appendix C, at 12-17.) Thus, this court will only address those claims.

The last reasoned rejection of this claim is the decision of the California Court of Appeal for the Third Appellate District on petitioner's direct appeal. The state court rejected this claim on the ground that:*fn17

Defendants contend that the prosecutor committed numerous acts of misconduct.*fn18

The applicable federal and state standards regarding prosecutorial misconduct are well established.

Improper remarks by a prosecutor can " 'so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process.' " (Darden v. Wainwright (1986) 477 U.S. 168, 181 [91 L.Ed.2d 144, 157]; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643 [40 L.Ed.2d 431, 437]; People v. Frye (1998) 18 Cal.4th 894, 969, 77 Cal.Rptr.2d 25, 959 P.2d 183 (Frye).)

But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves " ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' [Citation.]" (People v. Gionis (1995) 9 Cal.4th 1196, 1215, 40 Cal.Rptr.2d 456, 892 P.2d 1199; People v. Hill (1998) 17 Cal.4th 800, 819, 72 Cal.Rptr.2d 656, 952 P.2d 673 (Hill).) "The defendant generally need not show that the prosecutor acted in bad faith or with appreciation of the wrongfulness of his or her conduct, because the prosecutor's conduct is evaluated in accordance with an objective standard." (People v. Bradford (1997) 15 Cal.4th 1229, 1333, 65 Cal.Rptr.2d 145, 939 P.2d 259 (Bradford II).)

"Nevertheless, as a general rule, to preserve a claim of prosecutorial misconduct, the defense must make a timely objection and request an admonition to cure any harm." (Frye, supra, 18 Cal.4th at p. 969, 77 Cal.Rptr.2d 25, 959 P.2d 183; People v. Monteil (1993) 5 Cal.4th 877, 914, 21 Cal.Rptr.2d 705, 855 P.2d 1277 [although trial counsel objected to prosecutor's remarks at trial, the failure to request an admonition failed to preserve a claim of prosecutorial misconduct on appeal]; People v. Gionis, supra, 9 Cal.4th at p. 1215, 40 Cal.Rptr.2d 456, 892 P.2d 1199.)

The rule that a defendant must object and request an admonition at trial in order to preserve the issue for appeal, however, "applies only if a timely objection or request for admonition would have cured the harm." (People v. Hamilton (1989) 48 Cal.3d 1142, 1184, fn. 27, 259 Cal.Rptr. 701, 774 P.2d 730.) Accordingly, the rule is not applicable where any objection by defense counsel would almost certainly have been overruled. (Ibid.) Likewise, where such an objection is overruled, failure to request an admonition is excused because there is no opportunity to do so. (People v. Green, supra, 27 Cal.3d at p. 35, fn. 19, 164 Cal.Rptr. 1, 609 P.2d 468.)

(People v. Tran, et al., slip op. at 75-77.)

B. Alleged Misconduct Committed Before the Jury

2. Alleged misconduct during closing argument.

Defendants claim that "[p]erhaps the most egregious misconduct occurred during closing arguments."

" ' "It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature." [Citation] "A prosecutor may 'vigorously argue his case and is not limited to "Chesterfieldian politeness" ' [citation], and he may 'use appropriate epithets. . . .' " ' [Citation.]" (Williams III, supra, 16 Cal.4th at p. 221, 66 Cal.Rptr.2d 123, 940 P.2d 710; People v. Dennis (1998) 17 Cal.4th 468, 521, 71 Cal.Rptr.2d 680, 950 P.2d 1035; see also People v. Sandoval (1992) 4 Cal.4th 155, 180, 14 Cal.Rptr.2d 342, 841 P.2d 862 ["Closing argument may be vigorous and may include opprobrious epithets when they are reasonably warranted by the evidence"].)

"To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]" (Frye, supra, 18 Cal.4th at p. 970, 77 ...


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