FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner with counsel proceeding with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2004 judgment of conviction entered against him in the San Joaquin County Superior Court on charges of second degree murder and street terrorism, with sentence enhancements for possession of a firearm and acting in furtherance of a street gang. He seeks relief on the grounds that: (1) the trial court violated his Fifth Amendment rights in failing to suppress his statements to the police; and (2) the trial court violated his Fourteenth Amendment right to due process in giving a jury instruction on second degree felony murder. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
I. Factual and Procedural Background
In a published opinion affirming petitioner's judgment of conviction, the California
Supreme Court provided the following factual summary:
Judy Onesavanh and Sophal Ouch were planning a party for their son's birthday. Around 9:00 p.m. on September 13, 2003, they and a friend, Bounthavy Onethavong, were driving to the store in Stockton in a blue Mitsubishi that Onesavanh's father owned. Onesavanh's brother, George, also drives the car. The police consider George to be highly ranked in the Asian Boys street gang (Asian Boys).
That evening Ouch was driving, with Onesavanh in the front passenger seat and Onethavong behind Ouch. While they were stopped in the left turn lane at a traffic light, a blue Honda with tinted windows pulled up beside them. When the light changed, gunfire erupted from the Honda, hitting all three occupants of the Mitsubishi. Onethavong was killed, having received two bullet wounds in the head. Onesavanh was hit in the back and seriously wounded. Ouch was shot in the cheek and suffered a fractured jaw.
Ouch and Onesavanh identified the Honda's driver as "T--Bird," known to the police to be Rathana Chan, a member of the Tiny Rascals Gangsters (Tiny Rascals), a criminal street gang. The Tiny Rascals do not get along with the Asian Boys. Chan was never found. The forensic evidence showed that three different guns were used in the shooting, a .22, a .38, and a .44, and at least six bullets were fired. Both the .38 and the .44 struck Onethavong; both shots were lethal. Only the .44 was recovered. It was found at the residence of Sokha and Mao Bun, brothers believed to be members of a gang.
Two months after the shooting, the police stopped a van while investigating another suspected gang shooting. Defendant was a passenger in the van. He was arrested and subsequently made two statements regarding the shooting in this case. He admitted he was in the backseat of the Honda at the time; T--Bird was the driver and there were two other passengers. Later, he also admitted he fired a .38--caliber firearm. He said he did not point the gun at anyone; he just wanted to scare them.
Defendant, who was 16 years old at the time of the shooting, was tried as an adult for his role in the shooting. He was charged with murder, with driveby and gang special circumstances, and with two counts of attempted murder, discharging a firearm from a vehicle, and shooting into an occupied vehicle, all with gang and firearm-use allegations, and with street terrorism. At trial, the prosecution presented evidence that defendant was a member of the Tiny Rascals, and that the shooting was for the benefit of a gang. Defendant testified, denying being a member of the Tiny Rascals or being involved in the shooting.
The prosecution sought a first degree murder conviction. The court also instructed the jury on second degree felony murder based on shooting at an occupied motor vehicle (§ 246) either directly or as an aider and abettor. The jury found defendant guilty of second degree murder. It found the personal-firearm-use allegation not true, but found that a principal intentionally used a firearm and the shooting was committed for the benefit of a criminal street gang. The jury acquitted defendant of both counts of attempted murder, shooting from a motor vehicle, and shooting at an occupied motor vehicle. It convicted defendant of being an active participant in a criminal street gang.
People v. Sarun Chun, 45 Cal.4th 1172, 1178-80 (2009). Petitioner was sentenced to 55 years to life in state prison and ordered to pay $65,091.30 in victim restitution. Dckt. 1 at 5-6.
Petitioner appealed his judgment of conviction to the California Court of Appeal.
Resp't's Lodg. Doc. 1 (Appellant's Opening Brief). The result of that appeal was summarized by the California Supreme Court as follows:
The Court of Appeal, in an opinion authored by Justice Morrison, reversed the murder conviction and otherwise affirmed the judgment. It found two errors in the case. It held the trial court had properly admitted defendant's first statement that he had been in the car but that the court should have excluded his subsequent statement that he had fired a gun. It concluded that the latter statement was procured by a false promise of leniency. It found this error harmless beyond a reasonable doubt "as a pure evidentiary matter." But, partly due to this error, the Court of Appeal also held the trial court erred in instructing the jury on second degree felony murder. It found this error was prejudicial and reversed the murder conviction.
People v. Sarun Chun, 45 Cal.4th at 1180. See also People v. Chun, 65 Cal.Rptr.3d 738, 741-42 (Cal.App. 3 Dist. 2007) (opinion of the California Court of Appeal on petitioner's direct appeal).
After the California Court of Appeal issued its ruling reversing petitioner's second degree murder conviction, respondent filed a petition for review in the California Supreme Court. Resp't's Lodg. Doc. 7 (Petition for Review). That petition was granted. Resp't's Lodg. Doc. 9 (Grant of Review). Upon review, the Supreme Court addressed only the issue of whether the trial court erred in instructing the jury on second degree murder and whether that error was prejudicial. Sarun Chun, 45 Cal.4th at 1205. The Supreme Court did not address whether the trial court prejudicially erred in admitting petitioner's statement to police that he fired a gun from the Honda. Id.
The California Supreme Court agreed with the Court of Appeal that the trial court erred in instructing petitioner's jury on second degree felony murder. Id. at 1201. Unlike the Court of Appeal, the Supreme Court found that this error was, "by itself, harmless beyond a reasonable doubt." Id. at 1205. However, because the Court of Appeal had identified a second error by the trial court; namely, the admission of evidence that petitioner confessed he fired a gun, the Supreme Court remanded the case to the Court of Appeal for a determination of whether these two errors, in combination, were prejudicial. Id.
On remand, the California Court of Appeal concluded that the cumulative effect of the two errors was not prejudicial. Resp't's Lodg. Doc. 14 (Order After Remand). Accordingly, petitioner's second degree murder conviction was reinstated. Id. Petitioner filed a petition for review of this decision, which was summarily denied. Resp't's Lodg. Docs. 15, 16.
Petitioner filed his federal habeas petition in this court on May 29, 2011.
A. Standards for a Writ of Habeas Corpus
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003).
Under the "unreasonable application" clause of § 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.*fn1 Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, 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." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (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.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S.___,___,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington,131 S. Ct. at 786-87.
If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853.
Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784.
When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).*fn2
1. Suppression of Petitioner's Statements to Police
Petitioner's first claim for relief is that the trial court erred in denying his motion to suppress his statements to Detectives Seraypheap and Reyes that he was in the Honda and that he fired a .38 revolver. Dckt. No. 1 at 12. He contends that the statements were involuntary in that they were elicited by implied threats of harsher treatment and implied promises of leniency, and he argues that the trial court's failure to suppress these statements violated his rights under the Fifth Amendment. Id. He also argues that the admission of his statements resulted in prejudice because without the statements there was no evidence tying him to the shooting. Id.
a. Opinion of the California Court of Appeal
The California Court of Appeal issued the last reasoned decision on this claim. People v. Chun, 65 Cal.Rptr.3d 738, 744-51. That court explained the factual background to the claim as follows:
Defendant was detained by the police shortly after midnight on November 9, 2003. Officer Gutierrez read defendant his Miranda rights from a card. Defendant was interviewed about the Bedlow shooting at 2:40 a.m. and again at 3:30 a.m. At 5:00 a.m. defendant was transported to the Stewart Eberhardt Building. From 5:00 a.m. until 3:50 p.m. defendant was left alone; he was given food and water and allowed to use the restroom. Defendant never complained that his needs were not met. At no time did defendant ask to speak to an attorney or indicate he wanted to remain silent. He did not ask to speak with his parents. A third interview of less than an hour took place at 3:50 p.m. Defendant was again advised of his Miranda rights.
At 9:20 p.m. Detectives Seraypheap and Reyes interviewed defendant about the Lan Arc shooting. Defendant's statements in this interview are at issue. The interview was videotaped and a transcript prepared. The interview lasted 42 minutes. The detectives testified defendant had no trouble understanding them and did not appear tired or under the influence of alcohol or drugs. The trial court watched the tape of the interview before ruling on the motion to suppress.
Seraypheap told defendant they wanted to talk to him about "different stuff" than the earlier interviews and reminded defendant of his Miranda rights. Seraypheap asked if defendant had ever been in trouble. When defendant admitted he had received six days in work camp for pushing a security guard, the detective replied, "That's not bad." Seraypheap ...