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Nguyen v. Macomber

United States District Court, N.D. California, San Jose Division

June 19, 2017



          BETH LAB SON FREEMAN, United States District Judge

         Hung Quoc Nguyen, a state prisoner represented by counsel, filed an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state criminal conviction of six counts under (1) California Penal Code § 187(a) (murder), (2) §§ 182(a)(1) and 187 (conspiracy to commit murder, (3) §§ 182(a)(1), 12034(c), and 245(a)(1) (conspiracy to commit a shooting from an occupied vehicle and an assault with a deadly weapon), (4) § 12034(c) (shooting from a motor vehicle), (5) § 186.22(a) (street terrorism); and (6) § 246 (shooting at an occupied vehicle). Am. Pet. (“Pet.”), ECF 21. Petitioner asserts seven claims of constitutional violations. Respondent filed an answer, addressing the merits of Petitioner's claims, and exhibits in support thereof. ECF 24, 24-1, 25-31. Petitioner filed a traverse in response. ECF 38. Having reviewed the briefs and the underlying record, the Court concludes that Petitioner is not entitled to relief and DENIES the amended petition for writ of habeas corpus.

         I. BACKGROUND

         In 2010, Petitioner was tried and convicted in Contra Costa County Superior Court. A jury found Petitioner guilty of the six counts charged. 3 Clerk's Transcript on Appeal (“CT”) 675-690, Ex. 1 to Answer, ECF 25-1. The charges also included enhancements for firearm use (§ 12022.53) and street gang association (§ 186.22(b)). Id. at 675-689. On February 10, 2012, the trial court sentenced Petitioner to an aggregate prison term of 73 years to life. 6 CT 1634-1635.

         Petitioner appealed and, on September 5, 2013, the California Court of Appeal issued a written opinion denying relief and affirming the judgment in part.[1] Ex. 8 to Answer, ECF 31-7 (Ct. App. Decision). On December 11, 2013, the California Supreme Court denied Petitioner's petition for review. Ex. 10 to Answer, ECF 31-8.

         Petitioner initiated this case pro se on January 15, 2015. ECF 1. On May 21, 2015, Petitioner moved through counsel to file an amended petition, and the Court later granted the motion. ECF 15, 16. On July 30, 2015, Petitioner filed a motion to hold the federal petition in abeyance so he could exhaust additional claims based on recent decisions of the California Supreme Court and the California Court of Appeal, which this Court subsequently granted. ECF 19, 20.

         On November 20, 2015, Petitioner filed in the Contra Costa County Superior Court a petition for writ of habeas corpus raising two new claims. Ex. 11 to Answer. On January 20, 2016, the state superior court denied both claims on the merits and one claim as procedurally barred. Ex. 12 to Answer. On March 15, 2016, Petitioner re-submitted his new claims to the California Court of Appeal in a petition for writ of habeas corpus. Ex. 13 to Answer. The Court of Appeal summarily denied the petition on March 30, 2016. Ex. 15 to Answer. On April 8, 2016, Petitioner re-submitted his new claims to the California Supreme Court in a petition for review. Ex. 16 to Answer. The California Supreme Court summarily denied review on June 15, 2016. Ex. 17 to Answer.

         On July 15, 2016, Petitioner filed his amended federal petition for writ of habeas corpus in this Court. ECF 21.


         In its written opinion, the California Court of Appeal fairly and accurately summarized the factual background of Petitioner's case at trial as follows:

Three young men-defendant, Alberto Alejandre, and Martin Cerda, Jr. -were jointly charged in the drive-by shooting of 20-year-old Francisco Perez. Defendant and Alejandre were also charged with a second drive-by shooting. Cerda was tried separately from the others. In two separate trials each man claimed the others shot Perez, but all three were convicted and have appealed separately. The following statement of facts is based upon the evidence presented at the joint trial of defendant and Alejandre.
The August 3, 2009 freeway shooting
Defendant and his friends went out drinking late on the night of August 2, 2009, to celebrate Alejandre's 24th birthday and their party extended into the early morning hours of the next day. The group consisted of defendant, Alejandre, Cerda (Alejandre's cousin), and Claude Richards. According to the police, defendant, Alejandre and Cerda are Sureño street gang members.
Around 1:00 a.m. on August 3, the group headed home with Richards driving defendant's white van. They crossed the Carquinez Bridge and were driving on Interstate 80 when someone in the group opened the van's sliding side door and fired gun shots at another vehicle. A police officer who viewed a surveillance video of the van and its occupants recorded at the Carquinez Bridge toll plaza testified that Nguyen matched the victim's physical description of the shooter. At trial, defendant admitted the group's involvement in the shooting but claimed that Cerda was the shooter.
Surveillance of Alejandre's vehicle used in the shooting
The police used the Carquinez Bridge surveillance video to obtain the license plate number of the van used in the shooting. Motor vehicle records showed the registered owner sold the van to Alejandre. The police went to Alejandre's house on the afternoon of August 3, 2009, the day of the freeway shooting, and saw the van parked nearby. Later that day, the police placed a global positioning system (GPS) electronic tracking device on the van.
The GPS device permitted the police to monitor the movement, location, and speed of the van from a laptop computer. The device alerted the police when it detected motion and police officers then responded to the scene and followed the van, sometimes keeping the van under direct visual observation but often monitoring the van's movement at a distance with the GPS device. At trial, the police explained that covert surveillance of the van was necessary to preserve evidence of the freeway shooting until they could obtain a search warrant for Alejandre's vehicle and home.
The GPS device was placed on the van late on August 3, 2009, and no motion was detected until around 11:00 p.m. on August 4, about 24 hours later. The police followed the movements of the van throughout the night of August 4 and into the early morning hours of August 5 as the van traveled to multiple locations around the East Bay. The police were never close enough to identify the van occupants or observe their activity, but during the course of tracking the van the police discovered a parked vehicle with its tires and rims removed. At trial, defendant admitted that he, Alejandre, and Cerda spent the night driving in the van, stealing wheel rims from cars along the way.
The van returned to Alejandre's San Pablo home around 5:00a.m. on August 5. At 6:30a.m., the van left the house and the police followed the van with the aid of the GPS device. At 6:55a.m., a police officer saw a van occupant repeatedly open and close the vehicle's sliding side door; the officer thought the van occupant was practicing for another shooting. The van then drove down a small street and the surveillance officer did not follow directly behind for fear of being observed by the van occupants. The officer used the GPS device to monitor the van's location over the next few minutes. The device showed that the van slowly drove back and forth through the neighborhood of 23rd and Maricopa Streets in San Pablo, making two U-turns and stopping at that intersection at 7:06 a.m.
The August 5, 2009 shooting
Francisco Perez lived on Maricopa Street. Perez was a former Sureño gang member. Years earlier, in 2003, Perez was with Martin Cerda's older brother, Victor, when Victor shot and killed a rival Norteño gang member. Perez testified against Victor, and Victor was convicted of murder and sentenced to prison.
In 2009, Perez lived with his grandmother and worked as a roofer, leaving for work around 7:00 a.m. On the morning of August 5, Perez left his home for work and a fusillade of gunfire erupted. Perez's grandmother saw a man in a white van shooting at her grandson. A bullet grazed Perez's head and another bullet pierced his liver, heart, and left lung. Perez collapsed on the street and died at his grandmother's feet.
The police arrived at the scene and found 19 shell casings from two different firearms. The recovered shell casings were nine-millimeter and .40 caliber. The police also obtained a surveillance videotape from a nearby store that shows a white van driving back and forth on Maricopa Street in the minutes before the shooting. The videotape shows Perez initially walking toward the store then running from the van as it drove slowly towards him with its side door open.
Cell phone records revealed several calls from defendant's and Alejandre's phones to a known Sureño gang member minutes after the shooting. Defendants' calls were transmitted by cell phone towers along the route traveled by defendant's white van. The police arrested defendant, Alejandre, and Cerda. A search of Alejandre's house found the two handguns used in the Perez shooting; one of those guns had been used in the earlier freeway shooting.
Defendant and Alejandre were tried together.[2] At trial, defendant admitted that he, Alejandre and Cerda were at the Perez shooting. Defendant denied planning the shooting. Defendant said Alejandre was driving the van, looking for more tire rims to steal, when Cerda saw the man who “snitched” on Cerda's brother and directed Alejandre to make a U-turn. Defendant said Alejandre and Cerda spoke together in Spanish and Alejandre made several turns to bring the van back to Perez. Cerda dropped to his knees, opened the van's sliding door, pulled a gun from under his jacket, and fired multiple rounds at Perez. Defendant said he could not see if Alejandre was also shooting at Perez but, when confronted with the fact that two guns were used in the shooting, defendant said the second shooter had to be Alejandre.
Gang evidence
Sergeant Jeff Palmieri of the San Pablo Police Department testified as a gang expert. He testified to the rivalry between Sureño and Norteño street gangs and described their history, criminal activities, and symbols. Palmieri testified that gangs rely on violence and fear to maintain territory and retain control over its members. He said a gang member who talks to the police puts his life in danger and is labeled a “snitch.” The sergeant said a Sureño gang member who snitches on another gang member will be “put in check” by the gang with “a good beat down” or “worse.” On cross-examination, Palmieri conceded that the specific instances of Sureño retaliation against cooperating witnesses that he knew about were drawn from police reports and other documents compiled by the prosecutor, not prior personal experience. In closing, the sergeant opined that Perez's killing was done to benefit the gang: “what more of a powerful statement could a gang make . . . than everybody in the area knows that this individual was involved [as] a witness in a crime and now . . . he's dead in the street.”

Ct. App. Decision 2-6 (citations omitted).


         This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). The writ may not be granted with respect to any claim that was adjudicated on the merits in state court 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 the ‘contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Williams, 529 U.S. at 412; Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004). While circuit law may be “persuasive authority” for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be “reasonably” applied. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).

         “Under the ‘unreasonable application' clause, 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. “Under § 2254(d)(1)'s ‘unreasonable application' clause, . . . 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.” Id. at 411. 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.” Id. at 409.

         The Supreme Court has vigorously and repeatedly affirmed that under AEDPA, there is a heightened level of deference a federal habeas court must give to state court decisions. See Hardy v. Cross, 132 S.Ct. 490, 491 (2011) (per curiam); Harrington v. Richter, 562 U.S. 86, 96-101 (2011); Felkner v. Jackson, 562 U.S. 594 (2011) (per curiam). As the Court explained: “[o]n federal habeas review, AEDPA ‘imposes a highly deferential standard for evaluating state-court rulings' and ‘demands that state-court decisions be given the benefit of the doubt.'” Id. at 598 (citation omitted). With these principles in mind regarding the standard and limited scope of review in which this Court may engage in federal habeas proceedings, the Court addresses Petitioner's claims.


         Petitioner asserts that: (1) his sixth and fourteenth amendment rights to confrontation and due process were violated based on trial court's admission of hearsay statements from a Carquinez bridge toll taker, and based on ineffective assistance of his counsel for failure to object to such evidence; (2) the prosecutor's prejudicial misconduct during closing argument suggesting that Petitioner traveled to Sacramento to purchase firearms violated his sixth and fourteenth amendment rights, and alternatively that his trial counsel was ineffective for failure to object to this argument; (3) the cumulative prejudicial effect of the hearsay and prosecutor's improper argument violated his fourteenth amendment rights; (4) the prosecution's expert testimony that the shooting was committed for the benefit of a gang without adequate foundation violated his fourteenth amendment right to due process; (5) the lack of oral verdict on Count V, § 186.22(a) (street terrorism), violated his rights to a jury trial under the sixth amendment and his due process rights under the fourteenth amendment; (6) the admission of Petitioner's un-Mirandized statement that he was a Sureño gang member in response to custodial booking questions violated his fifth and fourteen amendment rights against self-incrimination; (7) the first degree murder conviction based on the natural and probable consequences theory of aiding and abetting violated his fourteenth amendment due process rights. See generally Pet.

         As noted, the California Supreme Court summarily denied Petitioner's petitions for review. Exs. 10 and 16 to Answer. The California Court of Appeal also summarily denied Petitioner's claims (6) and (7) listed above, based on two 2015 decisions of the California Supreme Court. Ex. 15 to Answer. In its 2013 opinion on direct review, the California Court of Appeal addressed all other claims raised by Petitioner, and thus was the highest court to have reviewed claims (1) through (5) in a reasoned decision. As to Petitioner's claims (6) and (7), the January 20, 2016, decision of the Contra Costa County Superior Court was the highest court to have reviewed these two claims in a reasoned decision. Ex. 12 to Answer. Accordingly, it is the Court of Appeal's 2013 decision, as well as the state Superior Court's 2016 decision, that this Court reviews herein for the respective claims. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005).

         A. Trial Court's Admission of Hearsay Statements from a Carquinez Bridge Toll Taker

         Petitioner argues that his constitutional rights were violated at trial because the jury was told-through the testimony of CHP Officer Benny Rodriguez-that toll collector Hung Nguyen could not identify anyone in Alejandre's van as it passed through the Carquinez Bridge toll plaza on August 3, 2009. Pet. m2-3; 10 RT 1676. Petitioner contends that the statements of the toll taker constituted testimonial hearsay and were admitted in violation of Crawford v. Washington, 541 U.S. 36 (2004). Pet. m3. Petitioner acknowledges that his trial attorney did not object to Rodriguez's testimony about the toll taker's statements, so Petitioner alternatively argues that his trial attorney provided ineffective assistance of counsel by failing to preserve the claim of evidentiary error for postconviction review. Id. at m7-8.

         On appeal, the state appellate court rejected Petitioner's claim that the admission of the hearsay testimony violated his rights:

Defendant contends that the police statement of a witness who did not testify at trial was wrongly admitted in violation of defendant's right to confront witnesses against him. Crawford v. Washington, 541 U.S. 36, 59 (2004). The claim fails because defendant's trial counsel introduced part of the witness statement, which permitted the prosecution to introduce other parts to provide a clear record of the witness's remarks. Evid. Code § 356.
The witness statement concerned the August 3, 2009 freeway shooting. The victim testified that the occupant of a van fired shots at her vehicle shortly after the vehicles passed through the Carquinez Bridge toll plaza. A surveillance videotape of the bridge shows the victim's car and Alejandre's van stopping at the toll plaza at the same time, in different lanes. At the toll plaza, defendant opened the van's rear sliding door and gestured in the victim's direction.
A police officer testified that he interviewed the toll takers during his investigation but did not relate the contents of his interviews on direct examination. On cross-examination, defendant's counsel asked the officer to relate portions of one of the toll taker's police statement. Over the prosecutor's hearsay objection, the court admitted the toll taker's statement that there were “occupants” in the van, which established that defendant was not the lone occupant. The defense also established that the toll taker, who was manning the lane traveled by the victim's car, was Asian and had the same name as defendant, Hung Nguyen. Defendant later testified that he opened the van door at the toll plaza to gesture to the toll taker who was his cousin, not to gesture to the victim. Defendant claimed he did not notice the victim until later, when Richards raced up to her car and Cerda opened the sliding door and fired shots. On redirect examination of the investigating police officer, the prosecutor addressed defendant's claimed familiarity with the toll taker, which had been alluded to in the opening statement, by eliciting the toll taker's statement that he could not identify any of the van occupants.
On appeal, defendant claims the prosecutor improperly introduced testimonial statements of the toll taker without an opportunity for cross-examination. Crawford, 541 U.S. at 59. The claim fails because the prosecutor was entitled to introduce evidence that completed a statement previously introduced by defendant. Evid. Code § 356.
“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const., 6th Amend. Under the confrontation clause, testimonial statements of witnesses absent from trial are generally inadmissible unless the declarant is unavailable to testify at trial and the defendant had a prior opportunity for cross-examination. Crawford, 541 U.S. at 59. The confrontation clause, however, does not preclude the prosecution from introducing evidence that ...

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