The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Tony Hoong, a state prisoner appearing through counsel, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Hoong is in the custody of the California department of Corrections and Rehabilitation, incarcerated at the California State Prison, Corcoran. Respondent has answered, and Hoong as replied.
I. BACKGROUND/PRIOR PROCEEDINGS
A Sacramento County Superior Court jury found Hoong, together with a co-defendant (Bobby Chiu), guilty of first-degree murder (Cal. Penal Code § 187). The jury also found true enhancement allegations that the defendants had committed the crime in association with a criminal gang (Cal. Penal Code § 186.22(b)), and a principal's use of a firearm in the crime, resulting in great bodily injury (Cal. Penal Code § 12022.53(d), (e)). On July 29, 2005, the trial court sentenced Hoong to an indeterminate prison term of fifty years to life. On appeal, the California Court of Appeal, Third Appellate District, affirmed the murder conviction, but vacated Hoong's enhancements and remanded with directions to dismiss the firearm enhancement and allow the People to re-allege the gang enhancement.*fn1 The California Supreme Court denied review on February 25, 2009. On May 20, 2010, Hoong filed a petition for habeas relief in the California Supreme Court, which was summarily denied without opinion or citation to authority on June 8, 2011. Hoong timely filed his Petition for relief in this Court on May 21, 2010. The California Court of Appeal summarized the appeal and the facts underlying the convictions:
Neither defendant was the actual shooter of the victim. The prosecution advanced alternative theories of derivative liability under which at least defendant Chiu encouraged an intended premeditated murder, or both participated in intended misdemeanors (simple assault or fighting in public) with the consequential offense of murder. As a result, they make lengthy arguments regarding the absence of more extensive instructions on defense of self or others (as either complete justification or mitigation), and the propriety of permitting accomplice liability for the murder conviction or the gun enhancement if the intended offenses were only misdemeanors. They also challenge (in divergent ways) the sufficiency of the evidence to support the murder verdict. They contend that the admission of hearsay evidence to prove the gang enhancement violated their right of confrontation; that the evidence was insufficient to support the gang enhancement; and (as to defendant Hoong) that the trial court abused its discretion in allowing the use of superfluous proof of the necessary predicate crimes for that enhancement. They criticize the trial court's use of the instruction on the role of motive. Finally, they attempt to assign prosecutorial misconduct for the first time on appeal.
Under compulsion of the far-reaching duty that our Supreme Court has fashioned to instruct on lesser offenses sua sponte, we must reverse the murder conviction of defendant Chiu and vacate the related enhancements. We also find the evidence is insufficient to support either enhancement as to defendant Hoong. We otherwise affirm the judgment as to defendant Hoong.
On the night before the fatal shooting, Macson was involved in an exchange of instant messages on his computer with Sarn. The former was Laotian and bore the indicia of a gang of Laotian nationality, but claimed these were simply a matter of ethnic pride (and no one else suggested that he had any affiliation with any gang). The latter was Mien, and was associated with a group of fellow nationals who claimed Crip affiliation. The dispute between them, however, did not have any basis in gang rivalry. Rather, each of the boys was allied with opposite sides in a dispute between two girls. Sarn challenged Macson to meet on the next day at an Internet cafe near their high school for a fight. Sarn asserted that he would show up with a gun and gang cohorts. Sarn threatened to shoot Macson if he failed to show up, and to shoot Macson's father if he intervened. (Macson's father owned the pizzeria next to the Internet cafe.) Macson told Sarn that even though he came from a good neighborhood, he could get some friends to support him in a fight as well.
Even though Macson (who had known Sarn for a few years and had been friends with him up to this point) thought Sarn was all bluff, he was somewhat concerned. He phoned two of his friends, one of whom was Simon. He relayed the threats from Sarn, seeking Simon's help and advice. At trial, he was initially somewhat equivocal about the assistance he sought from Simon, but he eventually acknowledged that he wanted Simon to be there in case the fight turned out to be more than just mano-a-mano. Simon was vague about whether he would be there.
Macson spoke with a number of people about the possibly impending fight. After school let out, he walked over to the nearby intersection at which the Internet cafe and pizzeria were located, an area frequented with all sorts of teenagers. On this afternoon, however, there were an unusually large number of Latinos wearing red. (To him, it seemed obvious that they were displaying an affiliation with the Bloods). Ordinarily, they would gather at another pizzeria across the street. There were also a number of the Asians who usually frequented the Internet cafe, which is where Macson socialized with Simon and defendants. Sarn had skipped school, and Macson was fairly certain at this point that Sarn was not going to show up, but he lingered to make sure that he was not accused of being a no-show. He spoke to his father in the pizzeria, then came out and saw Simon. He spoke briefly with him, letting him know the fight would not take place. He saw defendant Chiu, but did not speak with him. He heard people discussing the possibility of a fight, and had people ask him what was going on between him and Sarn. He decided to leave because it was time for one of the pizza deliverymen to drive him and his cousins home.
Our focus now switches to Simon. On the evening after the shooting, a detective had intercepted a car driving Simon away from his home; the driver was a resident of Magalia. The driver denied being a member of the Chinese gang, but gave the detective the impression that he had intimate knowledge of the gang's operations; in discussing these, he would occasionally lapse into the first person plural. The detective and Simon's probation officer both questioned Simon about the shooting over the course of several hours. Simon testified under a grant of use immunity, and the jury also viewed the lengthy videotape of his interrogation.
At trial, Simon denied speaking with Macson on the evening before the shooting about Sarn's threats. He claimed to have heard about it only through an Internet chat room, where some people were discussing the possibility that Sarn, "the Mien kid," would show up with some friends for a fight in which he might use a gun on the "pizza guy's dad." He did not take the rumor seriously, but had his sister drop him off at the location only out of curiosity, not out of any intent to assist Macson. He had asked defendant Chiu that morning if he had heard about the fight that was supposed to take place at the Internet cafe where they usually went on a daily basis, and defendant Chiu indicated that he had heard about it in some fashion or other. Simon did not talk at any point with defendant Hoong (whom he claimed that he barely knew). After his sister dropped him off, he went into the Internet cafe. When he came out, he saw defendants and Rickie Che sitting on the trunk of a car. He greeted a Vietnamese girl named Teresa that he had known since middle school. After a brief conversation with her (during which, according to Teresa, he mentioned that he was there to back up a friend in a possible fight), he went and sat in front of the Internet cafe to smoke a cigarette. He had not talked with anyone about the need to bring a gun to the possible fight, and had never seen Rickie Che fire a gun.
In his interrogation, however, Simon stated that Macson had called him and defendants on the night before the shooting. Simon said to Macson that he might show up if not otherwise busy. The next day at school, defendant Chiu mentioned getting a call from Macson. Defendant Chiu had been planning to go over to the Internet cafe anyway, but Simon did not have any intention of joining him. However, while his sister was driving him home from school, he had a change of heart in case "the Mien kid does go crazy."
Defendant Chiu testified. A girl had phoned him on the night before the shooting to tell him about the possible fight between Macson and Sarn. He did not speak to anyone else that night. Knowing both parties, he did not take the threat of gunplay seriously. The next day, he asked Simon if he was going to the Internet cafe, their usual destination after school. Simon said he had not planned to go, and asked if defendant Chiu had "heard about it." Defendant Chiu took this as a reference to the Macson/Sarn fight, and indicated that he was aware of it. They did not discuss the need to back up Macson in the fight. Defendant Chiu also told another friend at school about the impending fight, but did not think that he would have said anything about the potential for gunplay. (The friend's recollection at trial, however, was that defendant Chiu specifically urged him to attend because an unnamed friend might shoot if he got pressured.) Because Simon was not going to the Internet cafe, defendant Chiu did not want to ask him for a ride. He called defendant Hoong instead (who attended a different school), who said that Rickie Che was giving him a ride and would come get him. The three drove over to the Internet cafe without any discussion about the impending fight. Defendant Chiu was not aware of any weapons in their possession, nor had he ever been aware that Rickie Che would carry a gun. They parked the car on the curb just south of the pizzeria, facing west on the cross-street, and sat on the trunk. Defendant Chiu was surprised to see Simon was present, the latter having said that he was not coming. He noticed Macson in the crowd after school let out.
According to defendant Chiu, he noticed Teresa talking to some girlfriends and intended to attract her attention by imitating her voice in falsetto. This incensed Teresa, which in turn caught the attention of her longtime boyfriend nearby, who then confronted defendant Chiu; the latter then made a rude remark about Teresa's breasts ("nice rack"). Defendant Chiu claimed he had been unaware of the boyfriend's connection with Teresa, but did know him by sight from around school. The accounts of what exactly happened thereafter at the two loci of the battle predictably vary. The posturing between the two boys might have ended without incident, except that out of the corner of his eye, defendant Chiu claimed that he noticed someone throwing a punch at one of his companions, who had come up to support him. (According to Teresa, Joshua, the boyfriend, and other witnesses, the victim had also come to the boyfriend's side to support him when defendant Hoong and Rickie Che came up in support of defendant Chiu; it appeared to them that Rickie Che threw the first punch at the victim, hitting him and triggering what followed.) In any event, defendant Chiu decided the fight was on and rushed at the boyfriend. It is unclear whether he or the boyfriend threw the first blow at the other; however, both wound up on the ground.
In the fight between defendant Chiu and the boyfriend, Simon claimed he had at first intended only to be a bystander until he was knocked down by an unknown assailant. He got quickly to his feet to attempt to assist defendant Chiu, whom he claimed was being overwhelmed by a crowd of 10-15 of the Latino group. He was not focused on what was happening with Rickie Che and defendant Hoong.
Teresa recalled only the boyfriend's female cousin coming to his aid, who hit defendant Chiu repeatedly on the side of his head until he fell, giving the boyfriend time to stand up. She was focused only on what was happening with the boyfriend.
The boyfriend also was focused only on his antagonist once the fight began. He mentioned only his female cousin and one other Latino friend hitting defendant Chiu. Eventually, the boyfriend was able to knee defendant Chiu in the face.
The female cousin testified to hitting defendant Chiu. When the other Latino friend and Joshua came to the boyfriend's aid, she backed off. She noticed the largest of the Asians (which would be defendant Hoong) swinging a knife at the victim.
Joshua stated that Rickie Che threw the first punch at the victim's head after the victim challenged him for giving him a "hard" stare. Joshua at first came to the boyfriend's aid, walloping defendant Chiu in the back of the head. He then joined the fray taking place between the victim, Rickie Che, defendant Hoong, and others. He exchanged punches with defendant Hoong, while the victim fought with Rickie Che. He recalled that one of his Latino friends ran around and hit defendant Hoong from the other side; there were greater numbers on the Latino side than the Asian side, but Joshua did not otherwise specify the participants. After a couple of minutes, he urged the boyfriend, his female cousin, and the victim to get going before the police arrived. Joshua heard defendant Chiu shout at Rickie Che to get the "strap," a slang term for a firearm. He and the victim broke off their fight and turned to leave. Rickie Che went over to the car. As the victim and Joshua began to follow after the boyfriend and the female cousin down the cross-street to the west, defendant Hoong blocked their path. He swung a small knife at the victim, stabbing him in the arm as the victim attempted to get around him. As they began to run after the others, Joshua heard people who were not involved in the fighting call out a warning that Rickie Che had a gun. Joshua did not mention anything in his testimony about hearing anyone urging Rickie Che to shoot.
According to Teresa, she did not recall defendant Chiu and the boyfriend shouting anything at each other. As she was watching them, she heard someone somewhere else in the crowd shout a warning about a gun. She fled with her girlfriend toward a nearby light-rail station. As they ran up the street, they heard a gunshot behind them.
The boyfriend heard an unfamiliar voice cautioning about a gun. He had been using fight words during his battle with defendant Chiu, and he did not recall any other comments about guns until then. At the mention of a gun, the two broke off their fight and looked around. The boyfriend saw Rickie Che pointing the gun at him and telling him to run. The boyfriend was more than happy to comply with the command. He fled west down the cross-street and heard a shot behind him.
The female cousin recalled that it was the boyfriend who shouted a warning about the gun. She also claimed to have heard what she assumed to have been one of the Asians urging the use of the gun, but she was not sure who it was. Two other bystanders concurred in hearing one of the Asians urge the use of the gun, but also were not able to specify which Asian; one of them, however, was certain that it was an Asian near the shooter and not defendant Chiu, who was still engaged in fighting with the boyfriend and others (this bystander had not heard any warning about the gun).
After Simon had hit the ground for the third time in the fight, he saw Rickie Che running to the car and heard someone shout the warning about the gun and then heard a gunshot. He assumed one of the Latinos had fired a gun, but he then saw Rickie Che stick a black object into his waistband as he ran back to the car. He never heard anyone urging the use of the gun.
In the midst of his fight with the boyfriend, defendant Chiu noticed the former began to struggle to break away and run off after he was able to shake loose. Defendant Chiu then turned and noticed Rickie Che holding a gun. Neither he nor the boyfriend had said anything about guns (or straps) during their fight, nor had he heard anyone else say anything about a gun (either as a warning or as a provocation for its use).
There was at least unanimity about the fatal event. After retrieving a gun from his car, Rickie Che fired at the victim as he was running down the cross-street with Joshua. The gunshot wound to the back of his head was instantly fatal. The knife wound in the front of his upper left arm had not damaged any major blood vessels.
According to Simon, the gunshot had not deterred some of those lying on the ground near defendant Chiu from continuing to throw punches. Simon was able anyway to help defendant Chiu to his feet and walk to Rickie Che's car, in which defendants and Simon drove off. No one spoke in the car about what happened. Rickie Che first dropped off Simon at his nearby home, and then defendant Chiu.
As earlier noted, the police intercepted an effort to spirit Simon away. Defendant Chiu, however, accepted a ride from two unidentified men who had phoned his home. He did not know their names, but recognized them as associates of Rickie Che. This was a better alternative than sitting around his home worrying about his association with the shooter. South of Elk Grove, they stopped to eat, where defendant Hoong joined their company. Thereafter, they drove to an unknown location (later revealed to have been somewhere in Alameda), where they stayed for about a week. Defendant Chiu's brother phoned him to say that his prospects did not look good at home. After contacting a lawyer, defendant Chiu arranged to return home in order to surrender himself.*fn2
II. GROUNDS RAISED/DEFENSES
Hoong raises eight grounds: (1) the trial court erred in failing to instruct on the defense theory of imperfect self-defense and defense of others; (2) the use of the natural and probable consequence doctrine to impose liability as an aider and abettor violates the Due Process and Equal Protection Clauses; (3) California law on aiding and abetting in homicide cases violates the Equal Protection Clause; (4) the failure to present the claim in Ground Three on appeal constituted ineffective assistance of appellate counsel; (5) CALJIC 3.00 was misleading in violation of the Fourteenth Amendment; (6) failure to raise the claim in Ground Five on appeal constituted ineffective assistance of appellate counsel; (7) the use of CALJIC 2.51 lightened the prosecutions burden of proof to less than that of proof beyond a reasonable doubt; and (8) the admission of Hoong's juvenile convictions for auto burglary and felony assault violated the Due Process Clause.*fn3 Respondent does not assert any affirmative defenses.*fn4
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn5
The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn6 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn7 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn8 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be "objectively unreasonable," not just "incorrect or erroneous."*fn9 The Supreme Court has made clear that the objectively unreasonable standard is "a substantially higher threshold" than simply believing that the state-court determination was incorrect.*fn10 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn11
In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn12 Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has ...