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Sutter Nguyen v. Dwight W. Neven

December 20, 2012

SUTTER NGUYEN,
PETITIONER,
v.
DWIGHT W. NEVEN, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Terry J. Hatter, Jr. Senior United States District Judge

Order

In June, 2003, Lamson Trong Pham ("Lamson") and Bruce Huy Phan ("Bruce") were charged with the murder of Alan Khamphoumy ("Khamphoumy"), with the personal discharge of a firearm causing great bodily injury or death and the attempted murder of T.T. and V.D. with the same firearm allegations. In August, 2003, Sutter Nguyen ("Petitioner") was charged with the same offenses.

On the night of October 26, 2002, a Laotian family held a birthday party in and around the garage of their Sacramento residence. Some of the attendees were in LGC, a Laotian street gang and some of the attendees were in JVP, a Vietnamese street gang. All the defendants are Vietnamese. Prosecution evidence indicated that, in 1998, the police confirmed Petitioner was a JVP gang member.

The testimonies of witnesses who attended the party presented conflicting evidence as to what occurred on that night. One witness testified that the party was not an LGC party, even though he and Lamson indicated to each other their rival gang affiliations. Other partygoers testified, however, that when the two groups faced each other across the driveway, LGC members taunted JVP members by asking "Where you all from?" After the members claimed their gang affiliations, JVP members pulled out their guns and started shooting. T.T. testified that he was shot and injured. V.D., a seventeen year-old girl, was, also, shot and injured. Khamphoumy was shot and killed.

There was, also, conflicting testimony between co-defendants Lamson and Bruce and John D. ("John"), who testified that he was given use immunity and awaiting trial for an unrelated murder.

Lamson testified that he was told by Petitioner that Petitioner used to be JVP, but was no longer a member. Lamson, also, stated he saw Petitioner at the party but did not remember seeing him during the shooting.

Bruce testified that he was unsure of the sequence of events. He first testified that Petitioner pulled a gun and began to shoot, along with other JVP gang members, John and Trung Nguyen ("Boy"), but later testified that he did not know whether Petitioner actually shot or not.

Finally, John testified that he and Petitioner were not JVP members and maintained that Petitioner did not have a gun. John testified that it was Tan who fired the pistol which Tan later used to commit suicide. John later admitted, however, that he lied to the police due to his fear of being charged with the shooting.

When police stopped Lamson and Bruce on the same street as the party, two guns were found in the vehicle. Both guns were connected to casings found at the crime scene. There was gun shot residue on Bruce's palms and Bruce's fingerprints were on the gun that matched the bullet that killed Alan. Petitioner was arrested months later when police stopped him and Boy in a vehicle. When the driver of the vehicle emerged from the car, Boy killed himself with a shot to the head.

The trial court granted the prosecutor's motion to join cases and denied Petitioner's motion for severance. The prosecution's theory was that the defendants were involved in a Vietnamese street gang and went looking for a confrontations with rival Laotian gang members and shot at unarmed people. Lamson and Bruce claimed self-defense. Evidence was adduced that John's trial testimony partially conflicted with his statements in a police interview, a videotape of which was played to the jury. Petitioner did not testify, but maintained that no evidence showed he was present at the party or involved with the crimes, except evidence provided by the uncorroborated testimony of "accomplices" Lamson, Bruce and John.

The jury convicted Petitioner of second degree murder and two counts of attempted murder. The trial court sentenced Petitioner to fifteen years to life for murder and a consecutive term of nine years and four months for the attempted murders.

Petitioner appealed his conviction and the California Court of Appeal affirmed the judgment. Subsequently, Petitioner filed a petition for review with the California Supreme Court, which was denied. Petitioner did not file any petitions for writ of habeas corpus in state court, however, Respondent admits that Petitioner exhausted his claims for relief. Petitioner, in pro se, filed this federal writ for habeas relief.

Petitioner claims that:

1. The trial court improperly admitted evidence of his ties to JVP, a Vietnamese street gang, to show he was involved in the offences;

2. The trial court erred by not instructing that John, Lamson and Bruce were accomplices as a matter of law and that their ...


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