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Ge Lor Pao v. G.D. Lewis

September 8, 2011


The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge



Petitioner is a state prisoner proceeding with a pro se federal habeas petition pursuant to 28 U.S.C. § 2254. Petitioner was found guilty after a jury trial of first-degree murder. The jury also found true a gang enhancement and that Petitioner personally discharged a firearm causing great bodily injury or death. Petitioner received a sentence of fifty years to life imprisonment. Petitioner raises the following claims in his federal habeas petition: (1) trial court error for failing to give a voluntary manslaughter instruction as well as ineffective assistance of counsel for failing to revisit the issue of the voluntary manslaughter instruction with the trial court ("Claim I"); (2) prosecutorial misconduct ("Claim II"); (3) trial court error when it admitted evidence that a witness had previously seen Petitioner in possession of a gun ("Claim III"); and (4) Petitioner's additional sentence of twenty-five years to life imprisonment for using a firearm which caused death constituted double jeopardy ("Claim IV"). For the following reasons, the habeas petition should be denied.


The defendants [Petitioner and Chongt Yang] are members of the Yang Boyz or YBX gang, a subset of the Hmong Nation Society or HNS gang. The victim, Pra Sert Yang (Pra) was a member of the Menace Boys Crew or MBC gang. MBC and HNS are rival gangs. On February 20, 2005, Pra was driving his red Honda in Sacramento, and the defendants, along with Bou Vang (Pao's girlfriend) and Cheng Xiong Vang, were riding in a gold Toyota, also in Sacramento. Eventually, both cars were headed eastbound on Florin Road, near Stockton Boulevard, at the same time.

The red Honda stopped on Florin Road, at the intersection with Stockton Boulevard, in the left turn lane. The gold Toyota pulled to the right lane.

The defendants existed the gold Toyota in traffic -- Pao from the front passenger seat and Yang from the rear passenger seat. Each had a gun.

The defendants approached the red Honda. Each of the defendants shot multiple times at Pra, who was inside the Honda. He was hit six times and killed.

After the defendants returned to the gold Toyota, it went through the parking lot of a business on the corner and then onto southbound Stockton Boulevard.

Yang, 2009 WL 3069579, at *1.


After his conviction and sentence, Petitioner appealed to the California Court of Appeal raising the same issues that he raises in this federal habeas petition. On September 28, 2009, the California Court of Appeal affirmed the judgment against Petitioner in a written decision. See Yang, 2009 WL 3069579.

Petitioner then filed a petition for review to the California Supreme Court. That court summarily denied the petition for review on January 13, 2010.

Petitioner filed a federal habeas petition in March 2010. He filed an amended federal habeas petition in July 2010. Respondent answered the petition in November 2010. Petitioner filed a traverse in March 2011.


An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1994); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. 2254(d).

As a threshold matter, a court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the 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 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents."). In this case, the last reasoned court decision was from the California Court of Appeal on direct appeal.


A. Claim I

In Claim I, Petitioner argues that the trial court should have instructed the jury on voluntary manslaughter and that counsel was ineffective for failing to have the trial court revisit the issue. The California Court of Appeal analyzed these issues as follows:

Pao contends that the trial court erred by not instructing the jury concerning voluntary manslaughter as a lesser included offense of murder. He claims there was sufficient evidence of provocation to require this instruction. We disagree. Evidence of provocation, if any, was insubstantial and did not warrant a voluntary manslaughter instruction.

When a defendant is charged with murder, the trial court's duty to instruct sua sponte on the lesser included offense of voluntary manslaughter arises whenever there is substantial evidence that a jury could reasonably conclude that the defendant killed the victim in a sudden quarrel or heat of passion (People v. Breverman (1998)

19 Cal.4th 142, 153-164 (Breverman); People v. Barton (1995) 12 Cal.4th 186, 200-201 (Barton).) "Heat of passion arises when 'at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.' [Citations.]" (Barton, supra, at p. 201.) "Moreover, the passion aroused need not be anger or rage, but can be any "'[v]iolent, intense, other than revenge [citation]. 'However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter. . . .' [Citation.]" (Breverman, supra, at p. 163.) "[T]he trial court need not instruct on a lesser included offense whenever any evidence, no matter how weak, is presented to support an instruction, but only when the evidence is substantial enough to merit consideration by the jury." (Barton, supra, 12 Cal.4th at p. 195, fn. 4, original emphasis.) "Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive" (Id. at p. 201, fn. 8) "In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury." (Breverman, supra, at p. 162.) "On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense." [FN

3] (People v. Cole (2004) 33 Cal.4th 1158, 1215.) [FN 3] The Attorney General contends that, even though Pao requested an instruction on voluntary manslaughter, Pao forfeited the contention for appellate purposes because he did not obtain a ruling on the request. We disagree that the contention was forfeited. The trial court had a duty to instruct sua sponte on "all theories of a lesser included offense which find substantial support in the evidence." (Breverman, supra, 19 Cal.4th at p. 162.) In light of this conclusion that the issue is not forfeited, we need not consider Pao's contention that his trial counsel was ineffective for failing to obtain a ruling on the request for a voluntary manslaughter instruction.

Pao bases his argument that the trial court should have given a voluntary manslaughter instruction on evidence of two incidents: (1) Pra's confrontation with Pao's cousin, Lue Yang and

(2) shots fired at Pao's residence from an apartment that Pra later occupied.

The first incident involved Lue Yang, who is Pao's cousin. Lue lived with Pao's family in Marysville when Lue and Pao were children. They also lived together for some period of time after they each moved to Sacramento.

In June 2004, eight months before Pra's killing, Lue visited Pao's home and then left to meet his brothers to go fishing. Pra, in the red Honda, pulled up in back of Lue, while a truck pulled up along Lue's passenger side, thus cornering Lue. A Hmong person in the truck pointed a gun at Lue. After this confrontation, Lue drove home and picked up a friend, Her Kue, who was armed. They again encountered Pra in the red Honda. Someone in the Honda pointed something at Lue and Her, so Her rolled down the window and shot at the red Honda.

Lue told Pao about the June 2004 incident with Pra.

The second incident involved the firing of shots at Pao's residence from an apartment nearby. On two successive nights in August 2004, six months before Pra's killing, shots were fired at the house in which Pao lived with his family. The shots were fired from the direction of an apartment in which Pra lived at the time he was murdered. Citing this evidence, Pao states: "It is thus reasonable to infer that when [Pao] encountered Pra on February 20th in Sacramento, he had learned that Pra, the same person who had twice attempted to assault [Pao's] cousin after the cousin had stopped at [Pao's], lived in the apartment in front of which shots had been fired at the home of [Pao] and his family. At the same time, it cannot be said with any certainty that [Pao] knew that Pra had in fact moved into that apartment only after August 2004."

A conviction of voluntary manslaughter based on heat of passion requires proof beyond a reasonable doubt of an objective test of "sufficient provocation," that is "'provocation' sufficient to cause an "'ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment" "'(Breverman, supra, 19 Cal.4th at p. 163.) and a subjective test of provocation, that is, whether the defendant's reason was actually overcome by overwhelming passion at the time of the homicide. (People v. Lujan (2001) 92 Cal.App.4th 1389, 1411.)

The record here fails to demonstrate that Pao acted with objective provocation -- that is, whether the provocation was sufficient to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. Viewing the incidents cited by Pao individually or collectively, any provocation was very stale and attenuated, and thus insufficient to warrant an instruction on voluntary manslaughter.

Pra's confrontation with Lue took place eight months before Pao killed Pra. In addition to the passage of time, there is no evidence that Pra or his cohorts fired at Lue. An ordinary person of average disposition would not have been provoked to kill Pra because there had been a confrontation of this type then so remote, a confrontation that did not involve Pao.

As to the second incident, the evidence concerning Pra later living in the apartment from which shots had been fired at Pao's home is speculative. There is no evidence that Pao knew where Pra lived or that he associated Pra with the apartment in question. Without such knowledge, there would be no possibility of provocation. Pao argues, however, that, even though the evidence concerning provocation was remote in time, seeing Pra "re-ignited" Pao's "smoldering passion" and "he became so inflamed with anger and fear that he jumped out of the Camry and shot Pra while in the heat of passion." For this proposition, Pao cites People v. Bridgehouse (1956) 47 Cal.2d 406 (overruled on other grounds in People v. Blakeley, (2000) 23 Cal.4th 82, 89). In that case, the defendant shot and killed his wife's paramour. The wife had told the defendant that she was having an affair and refused to end it. When the defendant encountered the paramour unexpectedly, he was overcome by emotion and shot and killed the paramour. The California Supreme Court, reviewing the defendant's conviction for second degree murder, concluded that the evidence was insufficient to sustain a second degree murder conviction because of the undisputed evidence of the defendant's emotional and mental state at the time of the shooting. At most, the defendant was guilty of voluntary manslaughter. (People v. Bridgehouse, supra, at pp. 413-414.)

Pao asserts: "There was substantial evidence to support the inferences that [Pao's] being stopped at this same intersection at the time was, like the Bridgehouse defendant's walking into his mother-in-law's home and seeing his wife's paramour, an unexpected encounter." He additionally asserts that his actions -- getting out of his car in traffic and shooting Pra in broad daylight -- support a conclusion that he acted in the heat of passion.

The assertion that this case is similar to Bridgehouse is without merit. In that case, there was ample, undisputed evidence that the defendant was distraught and visibly shaken by his unexpected encounter with his wife's paramour, whom defendant's wife refused to leave. Here, there is no such evidence that Pao's prior experiences (or those of Pao's family) with Pra affected Pao in such a way as to negate malice. Furthermore, the fact that the crime was shockingly brazen does not show provocation at all, much less provocation sufficient to justify a voluntary manslaughter instruction.

The evidence was insufficient to support a conclusion that Pao's killing of Pra was a result of provocation. Therefore, the trial court correctly did not instruct on voluntary manslaughter.

Yang, 2009 WL 2069579, at * 10-13.

Claims based on instructional error under state law are not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). However, Petitioner does not only rely on state law in advancing his argument in this federal habeas petition. Petitioner also argues that his due process rights were violated by the trial court's failure to instruct the jury on voluntary manslaughter. To receive federal habeas relief for an error in jury instructions, Petitioner must show that the error so infected the entire trial that the resulting conviction violates due process. See Henderson v. Kibbe, 431 U.S. 145, 154 (1977). "Due process requires that criminal prosecutions 'comport with prevailing notions of fundamental fairness' and that 'criminal defendants be afforded a meaningful opportunity to present a complete defense.'" Clark v. Brown, 450 F.3d 898, 904 (9th Cir. 2006) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). Additionally, in order to obtain federal habeas relief on this claim, Petitioner "must show that the alleged instructional error had substantial and injurious effect or influence in determining the jury's verdict." Byrd v. Lewis, 566 F.3d 855, 860 (9th Cir. 2009) (internal quotation marks and citations omitted), cert. denied, -- U.S. --, 120 S.Ct. 2103, 176 L.Ed.2d 733 (2010). "A substantial and injurious effect means a reasonable probability that the jury would have arrived at a different verdict had the instruction been given." Id. (internal quotation marks and citation omitted). In determining whether petitioner was prejudiced by the failure to instruct the jury on voluntary manslaughter, a court considers: (1) the weight of the evidence that contradicts the defense; and (2) whether the defense could have completely absolved the defendant of the charge." Id. In this case, the burden on Petitioner is especially heavy where the alleged error involves the failure to give an instruction. See id. An omission or an incomplete instruction is less likely to be prejudicial than a misstatement of law. See Henderson, 431 U.S. at 155; see also Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997).

In a non-capital case, such as this one, the "[f]ailure of a state court to instruct on a lesser offense fails to present a federal constitutional question and will not be considered in a federal habeas proceeding." Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir. 1984). In Beck v. Alabama, 447 U.S. 625, 638 (1980), the Supreme Court held that criminal defendants possess a constitutional right to have the jury instructed on a lesser included offense in a capital case. However, the Beck court expressly reserved the question of whether due process mandates the application of the same right in non-capital cases. See id. at 638 n. 14. The right to have a jury instructed on a lesser included offense is not clearly established federal law in a non-capital case and consequently, the failure of a state trial court to instruct on a lesser included offense does not present a federal constitutional question. See Windham v. Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998).

In Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000), the Ninth Circuit stated that there may be an exception to this general rule for adequate jury instructions on a defendant's defense theory. However, even if Petitioner does possess this right, Petitioner still would not be entitled to federal habeas relief on this argument. He failed to show that any purported instructional error had a substantial and injurious effect on the jury's verdict.

Petitioner argues in his federal habeas petition that his voluntary manslaughter defense was "based on the facts that petitioner Pao's house had been shot at from the direction of Pra's gangs hangout on two difference occassion [sic]; the 9th and 10th of August 2004. Plus, the fact Pra had pointed a gun at petitioner's cousin on two different occassion [sic] in one day." (Pet'r's Pet. at p. 19.)

Under California law, murder is defined as "the unlawful killing of a human being . . . with malice aforethought." Cal. Penal Code § 187(a). Manslaughter is defined as "the unlawful killing of a human being without malice." Id. at § 192. In order to negate the malice element and reduce murder to voluntary manslaughter, the evidence needs to demonstrate that the killer acted upon a sudden quarrel or "heat of passion" aroused by a "provocation," see People v. Lasko, 23 Cal.4th 101, 108, 96 Cal.Rptr. 441, 999 P.2d 666 (2000), or that the defendant killed in the reasonable but good faith belief in having to act in self-defense. See People v. Moye, 47 Cal.4th 537, 549, 98 Cal. Rptr.3d 113, 213 P.3d 652 (2009).

The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim or be conduct reasonably believed by the defendant to have been engaged in by the victim. The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.

People v. Lee, 20 Cal. 4th 47, 59, 82 Cal. Rptr. 2d 625, 971 P.2d 1001 (1999) (internal citations and quotation marks omitted). If sufficient time elapsed between the provocation and the "fatal blow," such that the defendant's passion subsided and rational thinking returned, the killing is not voluntary manslaughter. See People v. Breverman, 19 Cal.4th 142');">19 Cal. 4th 142, 163, 77 Cal. Rptr. 2d 870, 960 P.2d 1094 (1998).

As the California Court of Appeal noted, the incident involving shots being fired into Petitioner's home in August 2004 was speculative. Pra was not living in the apartment where the shots came from in August 2004. Additionally, this incident took place six months prior to the killing in February 2005. Thus, sufficient time had elapsed between the August 2004 incident and the shooting of Pra. Furthermore, the incident involving Petitioner's cousin was even more remote as it occurred in June 2004, or eight months prior to the killing and did not even involve Petitioner. Under these circumstances, Petitioner failed to show that the failure to give the voluntary manslaughter instruction had a substantial and injurious effect on the jury's verdict. The evidence for murder was strong and the evidence Petitioner cites in support of his voluntary manslaughter argument is weak.

Similar to his direct appeal, Petitioner argues that seeing Pra in February 2005 reignited his passion such that the failure to give the voluntary manslaughter instruction violated his due process rights. This argument is unavailing. By way of example only, the August 2004 incident was too speculative with respect to Pra's involvement such that there was nothing to "reignite." Second, the incident occurring in June 2004 did not even involve Petitioner.

Petitioner's citations to People v. Berry, 18 Cal. 3d 509, 134 Cal. Rptr. 415, 556 P.2d 777 (1976) and People v. Bridgehouse, 47 Cal. 2d 406, 303 P.2d 1018 (1956) are also unavailing under these circumstances. In Berry, the defendant was taunted for two weeks by the victim (his wife) regarding the fact that his wife was in love with another man whom she had met in Israel only a few days after the two had been married. See Berry, 18 Cal. 3d at 513-14, 134 Cal. Rptr. 415, 556 P.2d 777. Ultimately, the California Supreme Court explained that the trial court erred in failing to instruct on voluntary manslaughter because, "Defendant's testimony chronicles a two-week period of provocatory conduct by his wife Rachel that could arouse a passion of jealousy, pain and sexual rage in an ordinary man of average disposition such as to cause him to act rashly from this passion." Id. at 515, 134 Cal. Rptr. 415, 556 P.2d 777. The circumstances of Petitioner's case which purportedly involved the victim were far different. Petitioner failed to show that one incident even involved Pra and the other incident did not involve Petitioner but was between Pra and Petitioner's relative. Furthermore, both incidents occurred months before the victim was fatally shot by Petitioner. Under these circumstances, Berry is distinguishable.

Bridgehouse is also distinguishable for the reasons discussed by the California Court of Appeal. That case involved the defendant finding the man with whom his wife was having an affair with at his mother-in-law's house and included evidence that the defendant was white and shaking so as to give rise to voluntary manslaughter as opposed to murder. See Bridgehouse, 47 Cal. 2d at 409, 303 P.2d 1018.

Within Claim I, Petitioner also argues that trial counsel was ineffective for failing to follow up on his request for a voluntary manslaughter instruction. The Sixth Amendment guarantees effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated the test for demonstrating ineffective assistance of counsel. First, the petitioner must show that considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. See id. at 688. Petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. See id. at 690. The ...

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