Opinion

Nguyen v. Pallares

Court: District Court, N.D. California
Filed: Feb 2, 2021
Cited by: 0 cases
Authority: More cited than 18.7%

holding that state court’s 3 conclusion that “I think I would like to talk to a lawyer” and “should I be telling you, or should I 4 talk to an attorney?” were not unambiguous requests for counsel was not objectively unreasonable 5 application of Davis

How later courts described this case

holding that state court’s 3 conclusion that “I think I would like to talk to a lawyer” and “should I be telling you, or should I 4 talk to an attorney?” were not unambiguous requests for counsel was not objectively unreasonable 5 application of Davis
noting that “a federal court may not second-guess a state court’s fact-finding 2 process unless, after review of the state-court record, it determines that the state court was not 3 merely wrong, but actually unreasonable”
“Here Williams said similarly, ‘I think 7 first, um, I should have a lawyer.’ Under Davis, that statement was ambiguous and equivocal.”
finding that where exculpatory value of destroyed evidence was not 19 apparent, government’s negligent failure to preserve it did not establish bad faith

Written by the judges who cited it.

The opinion

5 UNITED STATES DISTRICT COURT

6 NORTHERN DISTRICT OF CALIFORNIA

8 MY LOAN NGUYEN, Case No. C 19-2952 WHA (PR)

9 Petitioner, ORDER DENYING PETITION FOR

WRIT OF HABEAS CORPUS; AND

10 v. GRANTING CERTIFICATE OF

APPEALABILITY AS TO MIRANDA

11 MICHAEL PALLARES, Acting Warden, VIOLATION AND INEFFECTIVE

ASSISTANCE OF COUNSEL CLAIMS

Respondent.

13 INTRODUCTION

14 This is a federal habeas corpus action filed by a state prisoner pursuant to 28 U.S.C.

15 §2254.1 Respondent was ordered to show cause why the petition should not be granted.

16 Respondent filed an answer denying petitioner’s claims. Petitioner filed a traverse. For the

17 reasons stated below, the petition is DENIED.

18 STATEMENT

19 A. PROCEDURAL BACKGROUND

20 In 2014, a Santa Clara County jury convicted petitioner of attempted premeditated murder

21 (count 1) and two counts of discharging a firearm from a vehicle at a nonoccupant (counts 2 & 3).

22 The jury found true the allegation on count 1 that petitioner personally discharged a firearm, but it

23 found not true the allegation that petitioner caused great bodily injury to the victim. Regarding

24 count 2, the jury found not true the allegation that petitioner caused great bodily injury. At a

25 subsequent court trial in June 2014, the Santa Clara County Superior Court found not true the

26 allegation that petitioner had served a prior prison term.

On January 30, 2015, the trial court sentenced petitioner to life in prison with the

possibility of parole on count 1, plus a consecutive twenty-year term for the firearm enhancement.

The trial court stayed the sentence on count 3 and ran the sentence of a midterm of five years for

count 2 concurrently with the executed sentences.

On appeal, the California Court of Appeal affirmed the judgment. On September 14, 2016,

the California Supreme Court denied review.

On May 8, 2017, petitioner filed state habeas petition in the Santa Clara County Superior

Court. On May 3, 2018, the state superior court denied the petition in a reasoned decision.

On May 25, 2018, petitioner filed a state habeas petition in the California Court of Appeal.

On September 17, 2018, the state appellate court denied the petition.

On November 15, 2018, petitioner filed a state habeas petition in the California Supreme

Court. On April 17, 2019, the state supreme court denied the petition.

On May 29, 2019, petitioner filed her federal petition under 28 U.S.C. 2254, in which she

raises four claims: (1) her statements to police were introduced in evidence in violation of

Miranda2; (2) police failed to preserve potentially exculpatory evidence and the trial court erred in

denying her motion seeking dismissal of the case on this ground, filed pursuant to California v.

Trombetta, 467 U.S. 479 (1984) and Arizona v. Youngblood, 488 U.S. 51 (1988) (hereinafter

“Trombetta/Youngblood motion”); (3) her sentence is cruel and unusual in violation of the Eighth

Amendment; and (4) an ineffective assistance of counsel (“IAC”) claim during the course of plea

negotiations. Petitioner raised her Miranda violation claim on direct review, and she raised the

remaining claims on collateral review.

On June 28, 2019, the court ordered respondent to show cause why the petition should not

be granted. On September 26, 2019, respondent answered. On October 21, 2019, petitioner filed

her traverse.

27 2 Miranda v. Arizona, 384 U.S. 436 (1966).

1 B. FACTUAL BACKGROUND

2 The following description of the evidence presented at trial has been taken in part from the

3 opinion of the California Court of Appeal (Resp. Exh. E at 2)3 and from the trial court record.

4 Prosecution Evidence

5 In 2012, the victim, Tracy Pham, lived with her boyfriend, Tri Nguyen,4 and her three

6 children in San Jose. Vol. 4, Reporter’s Transcript (“4RT”) 423-424. In 2005, Pham split up with

7 Hai Huynh, the father of two of Pham’s oldest children, but they continued to remain in contact

8 about their kids, sometimes through his parents. 4RT 423-424, 431.

9 Pham had been friends with petitioner for about ten years. 4RT 425, 460, 463. Petitioner

10 was Tri’s cousin, and he had known her all his life. 4RT 566. Sometime in early 2012, Pham

11 introduced petitioner to Huynh, and they began to date. 4RT 427-428, 462, 464.

12 According to the state court opinion, the evidence at trial reflected that during the early

13 morning of October 25, 2012, the date of the incident, Pham was waiting outside of a store to meet

14 petitioner. Pham was with Tri, and Huynh was nearby. Petitioner and Pham had earlier

15 exchanged angry words on the phone before deciding to meet. Petitioner arrived at the Pham’s

16 location as a passenger in a vehicle. As Pham and Tri approached the vehicle, petitioner fired a

17 gun from the vehicle. The driver and petitioner then drove off. The police were dispatched to the

18 scene, and petitioner was apprehended shortly thereafter. Petitioner was interviewed in the back

19 of the police car and later at the police station.5

20 San Jose Police Officer Santiago, who was responsible for apprehending petitioner during

21 a “high-risk vehicle stop,” testified that upon making the stop he noticed an unspent 9-millimeter

22 bullet in plain view on the front passenger seat. 4RT 591, 594. Officer Santiago also noticed a

3 The California Court of Appeal’s summary of the facts of petitioner’s offense is presumed correct. See

25 Hernandez v. Small, 282 F.3d 1132, 1135 n.1 (9th Cir. 2002); 28 U.S.C. 2254(e)(1).

26 4 The court will use Tri’s first name because he shares a common name with petitioner.

27 5 Petitioner also wrote a letter of apology at the suggestion of the police during the second police interview.

4RT 613-616.

spent shell casing on the exterior of the vehicle on the left side of the windshield. 4RT 595. The

office found no gun in the car. 4RT 594. Officer Santiago took petitioner into custody and placed

bags over her hands to preserve possible gunshot residue. 4RT 594, 596-97. Subsequently, the

samples from petitioner’s left and right hands were tested and laboratory analysis detected the

presence of gunshot residue on both hands. 4RT 627, 704-706.

Pham was treated in the emergency room of Valley Medical Center for multiple gunshot

wounds caused by bullet fragments. 4RT 579; 5RT 782-783, 817-822.

San Jose Police Officer Chris Heinrich was dispatched to Valley Medical Center to contact

Pham. 4RT 578-579. Pham was being treated for multiple lacerations in her thigh and buttocks.

4RT 579. Officer Heinrich interviewed Pham, and he did not recall that she appeared to be

impaired by alcohol. 4RT 580-82. Officer Heinrich’s report contained nothing to indicate she

was intoxicated, and he likely would have noted such if she had been. 4RT 582-84.

Pham was advised to stay at the hospital for an additional day, but she decided to return

home to take care of her children. 4RT 452-53. Pham was in pain and unable to walk when she

left the hospital. 4RT 454. She was prescribed painkillers. 4RT 454. Pham was able to return to

work as a waitress within two weeks, but at the time of trial, she continued to feel pain in her leg.

4RT 455-56. She had a “bullet hole” scar in her leg. 4RT 457.

Defense Evidence

A forensic firearm expert testified that the bullet fragments which lodged in Pham’s thigh

must have struck some intervening object before hitting her. 5RT 776, 782. Based on the Pham’s

medical records the entry wound had a diameter of one centimeter and the fragments were

subcutaneous indicating the “penetration was very, very shallow . . . . There were two fragments,

and they were barely under the skin.” 5RT 782. There were no corresponding exit wounds. 5RT

783. The penetrative effect of the bullet or fragments was “almost zero.” 5RT 790. Based on

these factors, the expert opined the bullet “definitely hit an intervening object first.” 5RT 782.

The defense also presented the expert testimony of an emergency room physician that

Pham’s wounds were superficial, “just below the skin.” 5RT 823; see also 5RT 813-23. The

emergency treatment was “nonsurgical,” and the bullet fragments were not removed from the

victim’s thigh. 5RT 817-19, 822. The medical report indicated the entrance wound to the thigh

was 1.0 by 0.5 centimeters and surrounded by three abrasions, but no exit wound existed. 5RT

818. There was no significant bleeding associated with that wound. 5RT 818. When Pham was

released from the hospital, her pain level was rated a “0” on a scale of 0 to 10. 5RT 819.

Finally, the defense presented expert testimony of a forensic toxicologist that toxicology

testing of Pham’s blood indicated she would have had a blood-alcohol level of .202 at 2:20 a.m.

on October 25, 2012. 5RT 842-845. The expert opined that at this level, she would be “impaired

with respect to driving” and there was a “high likelihood that [she] would appear evidently drunk.”

5RT 845.

ANALYSIS

A. STANDARD OF REVIEW

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a

federal court may entertain a petition for 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). The petition may not

be granted with respect to any claim 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 United States 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 (Terry) v. Taylor, 529 U.S. 362, 412–13 (2000).

“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] Court’s decisions but unreasonably

applies that principle to the facts of the prisoner’s case.” Id. at 413. “[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.” 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 second prong of section 2254 applies to decisions based on factual determinations.

See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Under 28 U.S.C. § 2254(d)(2), a state court

decision “based on a factual determination will not be overturned on factual grounds unless

objectively unreasonable in light of the evidence presented in the state-court proceeding.” Id.; see

also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). Where the state court’s factual

findings are at issue in a habeas proceeding, the district court must first conduct an “intrinsic

review” of its fact-finding process. See Taylor v. Maddox, 366 F.3d 992, 999-1000 (9th Cir.

2004), abrogated on other grounds, Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014). “[A]

decision adjudicated on the merits in a state court and based on a factual determination will not be

overturned on factual grounds unless objectively unreasonable in light of the evidence presented in

the state-court proceeding.” Miller-El, 537 U.S. at 340; see also Cavazos v. Smith, 565 U.S. 1, 2

(2011) (per curiam) (it is not the province of the district court on federal habeas review to reassess

issues of credibility or to reweigh the evidence). “Once the state court’s fact-finding process

survives this intrinsic review . . . the state court’s findings are dressed in a presumption of

correctness. . . .” Taylor, 366 F.3d at 1000. “AEDPA spells out what this presumption means:

State-court fact-finding may be overturned based on new evidence presented for the first time in

federal court only if such new evidence amounts to clear and convincing proof that the state-court

finding is in error.” Id. (citing 28 U.S.C. § 2254(e)(1)); Hibbler v. Benedetti, 693 F.3d 1140, 1146

(9th Cir. 2012) (noting that “a federal court may not second-guess a state court’s fact-finding

process unless, after review of the state-court record, it determines that the state court was not

merely wrong, but actually unreasonable”) (quoting Taylor, 366 F.3d at 999).

When there is no reasoned opinion from the highest state court to consider the petitioner’s

claims, the federal habeas court looks to the last reasoned opinion from the state courts. See

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). It should then presume that the “unexplained

decision adopted the same reasoning” as the last reasoned decision. Id. When the state court has

rejected a claim on the merits without explanation, this court “must determine what arguments or

theories supported or . . . could have supported, the state court’s decision; and then it must ask

whether it is possible fairminded jurists could disagree that those arguments or theories are

inconsistent with the holding in a prior decision of [the U.S. Supreme] Court.” Harrington v.

Richter, 562 U.S. 86, 102 (2011).

In its unpublished disposition issued on June 27, 2016, the state appellate court addressed

the merits of petitioner’s Miranda violation claim. Resp. Exh. E at 3-13. Therefore, the last

reasoned decision as to that claim is the state appellate court’s unpublished disposition. See

Wilson, 138 S. Ct. at 1192.

Petitioner raised her remaining claims on collateral review in the state courts. See Resp.

Exhs. G, K, L. In a reasoned decision, the state superior court denied the destruction of evidence,

sentencing and IAC claims, which she had raised in her state habeas petition. See Resp. Exh. J.

These claims were summarily denied by the state appellate and supreme courts. See Resp. Exhs.

K, L.

B. CLAIMS FOR RELIEF

As grounds for federal habeas relief, petitioner claims: (1) her statements to police were

introduced in evidence in violation of Miranda; (2) police failed to preserve potentially

exculpatory evidence; (3) her sentence is cruel and unusual in violation of the Eighth Amendment;

and (4) an IAC claim.

1 1. MIRANDA VIOLATION CLAIM

2 Recordings of petitioner’s first and second interviews with Officer Santiago were admitted

3 into evidence and played at trial, and copies of the transcripts of the recordings were also admitted

4 to assist the jury to follow along with the recording. 4RT 597-605; Resp. Exh. B; Augmented

5 Clerk’s Transcript (“ACT”) 2-46. At trial, the defense sought to introduce petitioner’s apology

6 letter into the evidence for impeachment purposes over the prosecutor’s objection. 4RT 614-616.

7 Thereafter, the trial court listened to arguments by the parties and admitted a redacted version of

8 the letter into evidence. 4RT 642-652.

9 Petitioner contends that the police violated her rights under the Fifth and Fourteenth

10 Amendments by continuing to question her after she unambiguously invoked her right to remain

11 silent.6 As mentioned above, petitioner raised this Miranda violation claim as her sole claim on

12 direct review. Specifically, she argues that she did not explicitly waive her Miranda rights and

13 that questioning continued after she invoked her right to remain silent. Specifically, after

14 answering the Officer Santiago’s questions about the events just prior to the shooting, petitioner

15 was asked by the officer, “And then what happened?” Petitioner then invoked her right to remain

16 silent by stating as follows: “And then, then I think I shouldn’t say any more from there.”

17 Petitioner contends that the remainder of that police interview, the entirety of a second police

18 interview, and her apology letter written at the officer’s prompting should have been suppressed

6 In her traverse, petitioner points out that during the motion to suppress hearing, trial counsel argued there

21 were three junctures during petitioner’s first police interview with Officer Santiago in which she asserted her Miranda

rights, but in the instant action petitioner relies on only the second purported invocation of her right to remain silent.

22 Petitioner states as follows:

23 Petitioner recognizes that the first invocations of rights trial counsel pointed to—Petitioner’s question to

[Officer] Santiago whether she should have an attorney present and her statement that she did not know if she

24 should have an attorney—did not unambiguously express a desire to have counsel present. But there was

nothing ambiguous in Petitioner’s invocation of her right to remain silent that trial counsel pointed to as the

25 second assertion of her Miranda rights and that soon followed her statement that she did not know if she

should have an attorney present.

Trav. at 7.

by the trial court. Petitioner further contends that the trial court’s error in refusing to suppress her

statements was prejudicial.

The factual background of this claim, as described by the California Court of Appeal and

reasonably supported by the record, is summarized below (Resp. Exh. E at 4–8).

Prior to trial, petitioner filed a motion seeking an Evidence Code § 402 hearing to

determine the admissibility of the two police interviews and the letter of apology. The prosecution

filed a motion seeking to admit all of petitioner’s post-Miranda statements. The prosecution

argued that petitioner was advised of her Miranda rights during the first police interview, that she

waived her rights, and that she did not make an unequivocal and unambiguous invocation of her

rights thereafter.

At the hearing on the parties’ motions, the trial court listened to an audio recording of

petitioner’s first police interview and was provided a transcript by the prosecution. The parties

stipulated that the court could rely on or use the transcript as an aid to the audio recording.

At the beginning of the first police interview, Officer Santiago asked petitioner for her

name and then immediately advised her of her Miranda rights—the right to remain silent, the

consequences of forgoing that right, the right to the presence of an attorney, and the right to

appointment of an attorney if petitioner was indigent. Petitioner indicated that she understood her

rights and proceeded to answer the officer’s questions.

Officer Santiago asked petitioner generally what had occurred and then followed up with

more specific questions. Petitioner stated that she had gotten into an argument with her boyfriend,

Huynh, on the phone. At the time, her boyfriend was at the house of the victim, Pham, who was

the mother of his children. While petitioner was on the phone with her boyfriend, the victim

started “talking shit” to petitioner by phone and by text. The victim told petitioner to “meet up”

with her. Petitioner and a friend, who drove petitioner’s car, went to meet the victim.

Officer Santiago eventually asked, “[W]here did you guys meet up at?” Petitioner

responded, “Mm, we met up at um, should, should I have an attorney present? I don’t know if uh,

I should have an attorney present.” ACT 8 (italics added). The officer responded that he was

trying to get petitioner’s side of the story. Petitioner stated that they met at a store.

Petitioner thereafter continued to answer the officer’s questions about what happened.

Petitioner indicated that the victim, the victim’s boyfriend, and petitioner’s boyfriend approached

the front of petitioner’s car on foot. The following exchange then occurred between Officer

Santiago and petitioner:

MY LOAN And I thought they were gonna come up, uh, you know?

9 SANTIAGO And then what happened?

10 MY LOAN And then, then I think I shouldn’t say any more from there.

11 SANTIAGO Well, like I said, I, I’m just tryin’ to get your side of the story, I mean, it

sounds like, like your—

13 MY LOAN And—

14 SANTIAGO Your baby daddy, you know, caused some drama.

15 MY LOAN He did.

SANTIAGO And—

MY LOAN He’s always like that.

SANTIAGO Yeah, see, well, well, you know, uh—

20 MY LOAN And then they came at me, so, man, I’m pregnant,7 I, I ain’t gonna fight

with her.

SANTIAGO Well, see—

MY LOAN And I don’t (inaudible)—

24 SANTIAGO The thing is that, that I don’t know you, I don’t know him, I don’t know

her.

MY LOAN So you’re just . . .

7 Petitioner stated that she was 8 weeks pregnant at the time of the incident. ACT 5.

SANTIAGO So, so that’s why—

3 MY LOAN Getting the background.

4 SANTIAGO Hold on, so—

5 MY LOAN He has a warrant too.

SANTIAGO Does he?

MY LOAN Yeah, he does.

SANTIAGO So that, that’s why I’m trying to get your side of the story, because I, I

9 wanna understand what happened from your perspective, and if you’re

tellin’ me that, that your baby daddy started some drama, then . . .

11 MY LOAN He did.

12 SANTIAGO I mean, I, I, I, if I go ask him that, he’s probably gonna give me a different

story, right?

14 MY LOAN Yeah, you can ask him that.

15 SANTIAGO So, so that, that’s why . . .

16 MY LOAN (Inaudible.)

SANTIAGO I wanna get your side of the story, so I understand from your perspective. . .

MY LOAN Yeah, I got so many . . .

SANTIAGO What occurred.

MY LOAN People to vouch for me, that he’s just (inaudible), and he’s—

22 SANTIAGO Okay.

23 MY LOAN But anyway, yeah, and—

24 SANTIAGO Well, that, that’s what I’m saying—

MY LOAN And they came up, they were in front of my car, and then I come, like, to

26 here, and they’re comin’ at me, so, so I do what I had to do, and they left, I

don’t know.

1 SANTIAGO So you had to do what you had to do, what do you mean by that?

MY LOAN I don’t know, you know what, I think that, I, I don’t think I should say

3 anything, I . . . need an attorney, I don’t know.8 I don’t know, just like, and

they, he started shit, he, they called me out, yeah, I was, three of ’em

4 standing, but I’m pregnant, you know, so, that’s, I—I ain’t gonna have her

beat on me, I’m pregnant. And you know, she had two guys with her. So,

5 yeah. So.

6 ACT 11-13 (italics and footnotes added). Petitioner then indicated that after the incident occurred,

7 she and her friend drove away. The officer asked what happened to the gun, but petitioner did not

8 provide a direct answer.

9 After the recording of petitioner’s first police interview was played for the trial court, the

10 court heard argument from the parties. Petitioner contended that she had clearly invoked her right

11 to counsel and/or her right to remain silent on the following three occasions during the interview:

12 (1) “Mm, we met up at um, should, should I have an attorney present? I don’t know if uh, I should

13 have an attorney present”; (2) “And then, then I think I shouldn’t say any more from there”; and

14 (3) “I don’t know, you know what, I think that, I, I don’t think I should say anything, I . . . need an

15 attorney, I don’t know.” Petitioner contended that the officer continued to interview her in

16 violation of her Fifth Amendment rights, and that her second interview at the police station and the

17 apology letter should also be suppressed. The prosecution contended that petitioner did not clearly

18 invoke her right to counsel or to remain silent. The trial court took the matter under submission.

19 The following day, the court denied petitioner’s motion to exclude her post-Miranda statements.

20 3RT 351. The court found that petitioner’s three cited statements during the first police interview,

21 individually or in totality, were not an unequivocal and unambiguous invocation of her rights.

22 3RT 349-351. Specifically, the trial court relied on Davis v. United States, 512 U.S. 452 (1994),

24 8 The state appellate court quoted from the transcript of the audio recording of petitioner’s statement to the

police. The trial court, in making its ruling, appeared to rely on the transcript. However, in referring to this particular

25 statement by petitioner, the trial court quoted her as saying, “‘I think I shouldn’t say,’ period. ‘I need an attorney,’

period. ‘I don’t know.’ End of quote.” The state appellate court noted that the minor differences between the

26 transcript of the audio recording and what the trial court apparently determined was stated by petitioner at this point

was “not material to [its] analysis.” See Resp. Exh. E at 7 fn. 3. This Court agrees with the state appellate court and

27 finds that such a discrepancy does not affect its analysis.

and stated as follows:

. . . [I]ndividually as to each statement and in totality, the Court finds that there was no

unequivocal and unambiguous invocations of the defendant’s rights and, therefore, the

4 defense motion to exclude defendant’s statements, both the oral statements through the oral

interview and the letter of apology, that motion is denied.

3RT 350-351. As mentioned, the recording of the first interview was played at trial. 4RT 597-

600.

The following summary of petitioner’s second interview with Officer Santiago is taken

from the record. As stated above, the recording of the second interview was also played at trial.

4RT 603-05.

Petitioner was booked into jail and interviewed again at the jail’s preprocessing center.

4RT 601-02. Officer Santiago read petitioner her Miranda rights a second time, and she again

agreed to speak to the police. 4RT 605. On that occasion, petitioner said that Pham, Tri, and

Huynh were “behind a bush or something” and that they walked up to her and “hit [her] car.”

ACT 24-26. They were yelling “stupid shit” at her. ACT 30. Petitioner was in the passenger side

of her car. ACT 26. Petitioner told her friend to “take off,” and petitioner fired a gun out the

passenger side window. ACT 31-34, 37. She fired “[t]wo or three” shots. ACT 31, 34. She

explained to Officer Santiago, “I wasn’t shooting at them . . . . [T]hey were coming towards my

car so I just put my hand out the window . . . .” ACT 32; see ACT 34, 37. When the officer

clarified where she pointed the gun, she replied, “No, I didn’t point it at them . . . . I pointed it at

the ground. I didn’t hit them. I didn’t hit them, right? No, I didn’t.” ACT 33. She threw the gun

out the window of her car as they drove off. ACT 37. When the officer told petitioner that Pham

was shot, petitioner replied, “Oh, that’s what she gets. I’m sorry, but (unintelligible).” ACT 33.

When the office clarified what petitioner meant by “That’s what she gets,” she replied: “Well

’cause she was the one that came at me. She came at me.” ACT 33.

When the officer asked why petitioner decided to “leave [her] house in the first place,” she

explained that she got angry because they continued to call her, stating:

1 . . . they kept callin’ me. I wasn’t gonna leave my house, I was sleepin’ and they kept

calling me . . . . ’Cause I already hung up on them. I already hung up on them, I wasn’t

answering the phone. They just kept calling. And then they’re talkin’ shit, like, hella

3 talkin’ shit. So, I got real pissed.

ACT 40. Petitioner explained she got the gun from a secret location in her neighborhood before

leaving to meet Pham, stating as follows: “[A]nd then I went over to get Cindy and then they kept

callin’ me on the way. So, I said, ‘You know what, fuck it, I’m gonna go get the thing.’” ACT

38-39. When the officer asked why petitioner brought a gun, she responded: “I figure I’m

pregnant and I need to fight with them.” ACT 38. When the officer asked whether petitioner felt

sorry about what she did, she said, “I feel bad . . . . [Y]eah, it shouldn’t have happened, but this

dumb bitch shouldn’t have got drunk and called me up. But yeah, I feel bad, like, come on, she

used to be my friend.” ACT 42.

Officer Santiago testified that petitioner did not appear to be nervous during the interview,

and he thought she did not genuinely express remorse for her actions. 4RT 608-611. She did not

cry, but, instead, laughed during the interview. 4RT 609, 611. She seemed evasive at times. 4RT

608. On cross-examination, Officer Santiago testified that after the second interview, petitioner

agreed to write an “apology letter,” the admission of which the defense successfully requested in

order to impeach the officer’s testimony about petitioner’s lack of remorse. 4RT 613-616, 642-

652. In the redacted letter, petitioner stated, “I made a huge mistake tonight, probably the biggest

mistake of my life.” 4RT 616. She added, “I know that there is no excuse for my behavior. I do

wish to apologize for my actions.” 4RT 616. She also stated, “I am very sorry for what I did.”

4RT 617. Lastly, she wrote, “If I could, I would have handled the situation a lot differently. . . .

In a way that there wouldn’t be anyone resulting of [sic] any injuries.” 4RT 616.

On direct review, the state appellate court determined that the trial court did not err by

declining to exclude from evidence petitioner’s two police interviews and her letter of apology.

Resp. Exh. E at 13. Thus, the court rejected petitioner’s Miranda violation claim. The court

stated as follows:

We determine that a reasonable officer would not have understood defendant’s

27 statement, “I think I shouldn’t say any more from there,” was an unequivocal and

1 unambiguous invocation of the right to remain silent. (Nelson, supra, 53 Cal. 4th at p.

380.)

3 First, defendant’s statement contained ambiguous or equivocal language. Her

statement was prefaced with “I think,” which the California Supreme Court has

4 characterized as “ambiguous qualifying words.” (Bacon, supra, 50 Cal. 4th at p. 1105;

accord, Shamblin, supra, 236 Cal. App. 4th at p. 20 [“‘I think’” is equivocal language].)

5 Moreover, statements similar to defendant’s statement have been found to be equivocal or

ambiguous by California courts. (Bacon, supra, at p. 1105 [“‘I think it’d probably be a

good idea for me to get an attorney’”]; Stitely, supra, 35 Cal. 4th at p. 535 [“‘I think it’s

7 about time for me to stop talking’”]; Shamblin, supra, at p. 20 [“‘I think I probably should

change my mind about the lawyer now . . . . I think I need some advice here’”].)

Second, in considering the context in which defendant made the statement, the

9 record reflects that defendant continued to talk freely to the officer after making the

statement. (See Shamblin, supra, 236 Cal. App. 4th at p. 20 [“that defendant did not intend

to terminate the interview is clear from the exchange that immediately followed”].)

11 Immediately after defendant stated, “I think I shouldn’t say any more from there,” the

police officer started talking but barely finished one sentence before defendant interrupted

12 him. As the officer continued to try to speak, defendant repeatedly interrupted him,

including at times to express agreement with what the officer was saying. The officer was

unable to complete more than one sentence before defendant again interjected. The officer

14 even said to defendant, “Hold on, so—,” but he was interrupted by defendant. The

conversation continued, and defendant eventually interrupted the officer to say that the

15 victim, the victim’s boyfriend, and defendant’s boyfriend were “comin’ at me, . . . so I do

what I had to do,” apparently in reference to shooting the victim from the vehicle.

16 Defendant made this statement even though the officer had not posed a question to her

immediately prior to this statement.

18 Thus, rather than ceasing to talk after making the statement, “I think I shouldn’t say

any more from there,” defendant displayed an ongoing willingness to talk to the officer. In

19 view of the words defendant used (“I think I shouldn’t say any more from there”) and her

eagerness to talk right after making the statement, it was reasonable for the officer to

20 interpret the statement as an equivocal reference to remaining silent. (Nelson, supra, 53

Cal. 4th at p. 380.)

22 Third, the statement at issue was made between two other ambiguous and equivocal

references to counsel and/or to remaining silent. Defendant concedes that her first mention

23 of an attorney (“[S]hould I have an attorney present? I don’t know if . . . I should have an

attorney present.”) “did not unambiguously express a desire to have counsel present.”

24 Likewise, defendant’s last reference to an attorney and to not talking (“I don’t know, you

know what, I think that, I, I don’t think I should say anything, I . . . need an attorney, I

don’t know.”) was equally ambiguous and unequivocal, given her repeated “I don’t know”

26 statements and the fact that she continued to talk about the incident thereafter without any

comment from the officer.

1 Given the qualifying words that defendant used in all of her references to an

attorney and to remaining silent, and given that she continued to talk freely right after

making each of the three statements concerning an attorney and/or remaining silent, we

3 determine that defendant’s statement, “I think I shouldn’t say any more from there,” was

not sufficiently clear that a reasonable police officer would understand the statement to be

4 an invocation of the right to remain silent (Nelson, supra, 53 Cal. 4th at pp. 376, 380).

Because we determine that defendant’s Miranda rights were not violated, we need not

5 address whether she was prejudiced by the admission of the statements that she made after

the asserted invocation of the right to silence.

Resp. Exh. E at 11-13.

Miranda requires that a suspect be given certain warnings and must waive those warnings

before he may be subjected to a custodial interrogation. 384 U.S. at 479. “[U]nless and until such

warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result

of interrogation can be used against him.” Id.; see also Oregon v. Elstad, 470 U.S. 298, 306

(1985) (referring to the “Miranda exclusionary rule”). The requirements of Miranda are “clearly

established” federal law for purposes of federal habeas corpus review under 28 U.S.C. § 2254(d).

Juan H. v. Allen, 408 F.3d 1262, 1271 (9th Cir. 2005); Jackson v. Giurbino, 364 F.3d 1002, 1009

(9th Cir. 2004).

Miranda requires that a person subjected to custodial interrogation be advised that “he has

a right to remain silent, that any statement he does make may be used as evidence against him, and

that he has a right to the presence of an attorney.” 384 U.S. at 444. The warnings must precede

any custodial interrogation, which occurs whenever law enforcement officers question a person

after taking that person into custody or otherwise significantly deprive a person of freedom of

action. Id.

Clearly established Supreme Court law, as set forth in Miranda itself, requires that

questioning should end once the suspect expresses his desire to maintain silence. See id. at 473-74

(“If the individual indicates in any manner, at any time prior to or during questioning, that he

wishes to remain silent, the interrogation must cease.”). However, an accused who wants to

invoke his right to remain silent must do so unambiguously. Berghuis v. Thompkins, 560 U.S.

370, 384 (2010).

Similarly, in the context of another Miranda right, the right to the presence of an attorney

during interrogation, the Supreme Court has held that after a valid Miranda waiver, an invocation

of that right only halts interrogation when it is clear and unambiguous. Davis v. United States,

512 U.S. 452, 459-61 (1994). A state court’s application of the Davis’ “clear statement” rule to

the invocation of the right to remain silent after Miranda waiver is not contrary to or an

unreasonable application of Supreme Court precedent for purposes of section 2254(d). DeWeaver

v. Runnels, 556 F.3d 995, 1002 (9th Cir. 2009) (no habeas relief available where state court had

concluded that suspect asking to be taken back to jail did not evidence a refusal to talk further and

was not an invocation of right to remain silent). Furthermore, officers are not required to clarify

an ambiguous statement. See Davis, 512 U.S. at 461-62.

Habeas relief may be granted, however, only if the admission of statements in violation of

Miranda had a “‘substantial and injurious effect or influence in determining the jury’s verdict.’”

Pope v. Zenon, 69 F.3d 1018, 1020 (9th Cir. 1995)9 (quoting Brecht v. Abrahamson, 507 U.S. 619,

637 (1993)).

Here, petitioner claims that her statement during the first police interview, “I think I

shouldn’t say any more from there,” ACT 11, was an unequivocal invocation of her right to

remain silent, and that the remainder of that police interview, the entirety of a second police

interview, and her apology letter should have been suppressed by the trial court. Petitioner further

contends that the trial court’s error in refusing to suppress her statements was prejudicial.

As mentioned, the trial court conducted an evidentiary hearing regarding the admissibility

of petitioner’s statements to police during the two police interviews and her apology letter. 3RT

338-351. The state appellate court affirmed the trial court’s denial of the motion to suppress her

statements. Resp. Exh. E at 13. The record demonstrates that petitioner had a full, fair, and

complete opportunity to present evidence in support of her claim to the state courts, of which she

27 9 Overruled on other grounds by United States v. Orso, 266 F.3d 1030, 1038 (9th Cir. 2001, abrogated on

other grounds by Missouri v. Seibert, 542 U.S. 600 (2004).

took full advantage. Thus, the court finds that the state court’s fact-finding process survives

intrinsic review. See Hibbler, 693 F.3d at 1146. However, petitioner fails to present clear and

convincing evidence to overcome the presumption of correctness of the state court’s factual

findings. The record shows that during the first police interview, Officer Santiago read petitioner

her Miranda rights prior to questioning her at the back seat of his patrol car, and petitioner stated

she understood them. 4RT 595-596; ACT 2. Thus, petitioner impliedly waived her Miranda

rights when she first started speaking with Officer Santiago.

Whether petitioner unambiguously invoked her Miranda rights after initially waiving them

is a separate question. As mentioned above, after Officer Santiago asked petitioner what happened

after the victim and her boyfriend approached the vehicle, petitioner responded, “I think I

shouldn’t say any more from there.” ACT 11. Petitioner claims at this point, she invoked her

right to remain silent, which required Officer Santiago “to cease questioning her, and [Officer]

Santiago violated her Fifth and Fourteenth Amendment rights by continuing the first interview and

by conducting the second interview and prompting her to write the apology letter.” Trav. at 7.

However, the trial court denied petitioner’s motion to suppress the aforementioned statements

when it relied on Davis and found that “there was no unequivocal and unambiguous invocations of

the defendant’s rights and, therefore, the defense motion to exclude defendant’s statements, both

the oral statements through the oral interview and the letter of apology . . . .” 3RT 350-351. The

state appellate court agreed that the statement at issue “contained ambiguous or equivocal

language” because it “was prefaced with ‘I think,’ which the California Supreme Court has

characterized as ‘ambiguous qualifying words.’” Resp. Exh. E at 11. The court also considered

“the context in which [petitioner] made the statement,” and reasoned that the totality of the

circumstances—including “her eagerness to talk right after making the statement [that she

preferred to maintain silence]”—made it “reasonable for the officer to interpret the statement as an

equivocal reference to remaining silent.” Id. at 12. Such a showing, in the absence of

circumstances suggesting a contrary finding, is sufficient to establish petitioner’s statement, “I

think I shouldn’t say any more from there,” was an unambiguous invocation of her right to remain

silent. Cf. Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) (holding that state court’s

conclusion that “I think I would like to talk to a lawyer” and “should I be telling you, or should I

talk to an attorney?” were not unambiguous requests for counsel was not objectively unreasonable

application of Davis), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63, 71 (2003).

Petitioner contends that the trial court erred in denying her motion to suppress because she

claims that “she did not use any qualifying language that made her desire to remain silent

unclear.” Trav. at 8. She contends that “at that point in the interview she had changed her mind

about talking to [Officer] Santiago and now thought it was in her interests not to say more.” Id.

But no factual basis in the state court record exists to support petitioner’s contentions. First, her

assertion that she “did not use any qualifying language” is contradicted by the record, which

shows that the statement was “I think I shouldn’t say any more from there,” ACT 11 (italics

added), and the trial court found that her use of the words “I think” made her statement “not an

invocation” of her right to remain silent. 3RT 350. Specifically, the trial court noted that such a

finding was “consistent with a number of California cases and other jurisdictions where courts

have found conditional statements to be ambiguous.” 3RT 349. The trial court relied on Clark,

stating: “Clark v. Murphy, a Ninth Circuit Court [case], 2003, 331 F.3d 1062, pinpoint 1070-1072,

quote, “I think I would like to talk to a lawyer,” that court found [it] to be an ambiguous

statement.” 3RT 349-350. Petitioner’s claim that such a statement showed that she had changed

her mind about speaking with Officer Santiago was rejected by the trial judge who listened to the

taped interview and read the interview transcript. See 3RT 315, 338-351. As such, the trial court

found that “in totality . . . there was no unequivocal and unambiguous invocation of [petitioner’s]

rights . . . .” 3RT 351. Those determinations were affirmed by the state appellate court that

reviewed the record, including the transcript of the interview. See Resp. Exh. E at 11-13.

Although petitioner disagrees with the factual determinations made by the state courts, she points

to no material fact that any court failed to consider or to any inaccuracy in the state court record.

Under these circumstances, the court must defer to the state courts’ findings, which are reasonable

and therefore binding in these proceedings under section 2254(d)(2). Taylor, 366 F.3d at 1000.

Second, the state courts’ determination that petitioner’s statements to police and apology

letter were admissible constitutes a reasonable application of pertinent federal law within the

meaning of section 2254(d)(1). As explained above, the trial court denied the motion to suppress

based on that court’s finding that, under the circumstances of this case, petitioner did not invoke

her right to remain silent when she said, “I think I shouldn’t say any more from there.” 3RT 350-

351. The state appellate court specifically determined that the aforementioned statement “was not

sufficiently clear that a reasonable police officer would understand that statement to be an

invocation of the right to remain silent.” Resp. Exh. E at 13. Accordingly, the state courts’

determination—that no Miranda violation resulted because petitioner’s statement was

ambiguous—must stand.

Furthermore, the Court finds that the state courts’ conclusion that petitioner’s Miranda

rights were not violated was neither contrary to nor an objectively unreasonable application of

federal law. 28 U.S.C. § 2254(d)(1). As mentioned above, an accused who wants to invoke his

right to remain silent must do so unambiguously. Berghuis, 560 U.S. at 384. In Berghuis, the

Supreme Court found the defendant did not unambiguously invoke his right to remain silent by not

speaking for the first two hours and 45 minutes of a three-hour interrogation. Id. at 375-76, 381-

82. Because he did not say he wanted to remain silent or that he did not want to talk to the police,

he did not invoke his right to remain silent. Id. at 382. Similarly, in Davis, the Supreme Court

found that the suspect’s statement, “maybe I should talk to a lawyer,” did not constitute an

unequivocal request that required the interrogation to cease. See 512 U.S. at 462. Here, the state

courts did not unreasonably apply Supreme Court law in Miranda or even in either Berghuis or

Davis in rejecting petitioner’s claim that her statement, “I think I shouldn’t say any more from

there,” was an unambiguous invocation of her right to remain silent. See Resp. Exh. E at 11; see

also 3RT 349-351. The state courts reasonably found that the statement contained ambiguous or

equivocal language, relying in part on Clark, in which the Ninth Circuit held that a state court’s

determination that “I think I would like to talk to a lawyer” was ambiguous was not an

unreasonable application of federal law. See 331 F.3d at 1069, 1071. Moreover, numerous other

federal court decisions have found that alleged invocations of the right to remain silent or right to

counsel prefaced with words such as “I think” do not constitute unequivocal invocations. See

Williams v. Horel, 341 F. App’x 333, 335 (9th Cir. 2009) (“Here Williams said similarly, ‘I think

first, um, I should have a lawyer.’ Under Davis, that statement was ambiguous and equivocal.”);

United States v. Potter, 927 F.3d 446,451 (6th Cir. 2019) (noting Sixth Circuit’s prior holding that

statement, “I think I should talk to a lawyer, what do you think?” was equivocal invocation);

United States v. Mohr, 772 F.3d 1143, 1146 (8th Cir. 2014) (“Mohr’s statement ‘I think I should

get [a lawyer]’ was not an unequivocal invocation of his right to counsel.”); Burket v. Angelone,

208 F.3d 172, 197 (4th Cir. 2000) (defendant’s statement to the police “I think I need a lawyer”

did not constitute an unequivocal request for counsel). In addition, the court has found no post-

Davis/Berghuis case finding a statement similar to petitioner’s, i.e., prefaced with “I think,” to be

an unambiguous invocation of the right remain silent.

Based on the above, this court finds that the state appellate court’s rejection of petitioner’s

Miranda violation claim was based on a reasonable determination of the facts under section

2254(d)(2) and on a reasonable application of clearly established federal law under section

2254(d)(1).

Even if admission of petitioner’s statements and letter of apology were erroneous, the error

cannot be said to have had a substantial and injurious effect on the jury’s verdict, given the

overwhelming independent evidence introduced against petitioner at trial. See Brecht, 507 U.S. at

637.

In the present case, there was strong evidence of petitioner’s guilt. By the time petitioner

made the alleged invocation of her right to remain silent, she had already admitted that she had a

heated argument with Pham over the phone and that they had agreed to meet up on the early

morning of October 25, 2012. ACT 6-10. Furthermore, the circumstantial evidence that petitioner

was the shooter was overwhelming. The record shows that petitioner was taken into custody

moments after shooting, when her vehicle, a silver Mercedes, was stopped a short distance from

the scene of the shooting. 4RT 589-594. When Officer Santiago passed the Mercedes, the driver

ran a red light and fled at a high rate of speed. 4RT 590. Officer Santiago made a “high-risk

vehicle stop” and found petitioner in the passenger seat. 4RT 591, 593. There was an unspent 9-

millimeter round on the floorboard and a spent casing on the exterior of the vehicle near the

windshield wiper. 4RT 594-595. When petitioner was taken into custody, Officer Santiago

immediately placed bags over her hands, and gunshot residue was found on both hands. 4RT 594,

596-597, 624-625, 627, 704.

The circumstances of the altercation between Pham and petitioner and their agreement to

meet at the shopping center to resolve their problems was also established by independent and

undisputed testimony by Pham. 4RT 437-440. Thus, the only significant matter which was

established by the admission of the remainder of petitioner’s statements from both interviews was

her state of mind when she shot at Pham and Pham’s companions. See ACT 11-13, 38-40.

Specifically, petitioner admitted to Officer Santiago she stopped on her way to the meeting to pick

up a gun because she was angry and was unable to physically fight Pham due to her pregnancy.

See id. However, even without this admission the aforementioned evidence presented at trial from

eye-witness testimony that Pham was shot at from petitioner’s car and expert testimony regarding

the gunshot residue found on petitioner’s hands established that petitioner brought a gun to the

meeting and used it to shoot at Pham. Therefore, such evidence would have shown premeditation.

Finally, the record shows that admission of the statements allowed the defense to present

the theory that petitioner did not point the gun at Pham but rather she fired into the ground because

during the second interview, petitioner expressed surprise that she hit Pham. ACT 33. This

evidence supported the defense expert testimony that the bullets hit an intervening object before

striking Pham. See 5RT 776, 782. Also, the defense presented evidence of petitioner’s apology

letter to Pham as impeachment evidence because Officer Santiago had testified about petitioner’s

lack of remorse. 4RT 614-616, 642-652.

Therefore, it cannot be said that the admission of petitioner’s statements to police and letter

of apology had a substantial or injurious effect on the verdicts. Accordingly, petitioner is not

entitled to federal habeas relief on her Miranda violation claim.

2. DESTRUCTION OF EVIDENCE CLAIM

Petitioner contends that her constitutional rights were violated when police failed to

preserve an audio recording of an interview with the victim. In essence, petitioner contends her

constitutional rights were violated by the denial of her pre-trial Trombetta/Youngblood motion.

Before trial, petitioner filed a motion to dismiss or for other relief for “failure of law

enforcement agencies to collect or preserve evidence” that is “likely exculpatory,” in violation of

Trombetta and Youngblood. Vol. 1, Clerk’s Transcript (“1CT”) 221-226; 3RT 316-317, 328-329.

After the shooting, Officer Heinrich had gone to the hospital and took a recorded statement from

Pham. 4RT 547-548. Officer Heinrich attempted to upload the statement to the “DCS”10 and

summarized the statement in a report. 4RT 549; 1CT 228-229. At the time of the motion, the

defense had been advised that the audio recording was “gone.” 1CT 221-222.11 The defense

argued that the failure to preserve the recording violated due process and moved for dismissal of

the charges or, in the alternative, a jury instruction on the police’s failure to preserve the audio

recording and how the jury may infer such evidence would have been favorable to the defense.

1CT 225.

An evidentiary hearing was held on petitioner’s Trombetta/Youngblood motion. 4RT 546-

553. Officer Heinrich testified that after the shooting in the early morning of October 25, 2012, he

was asked to go to Valley Medical Center to check on the “medical condition” of Pham. 4RT 547.

10 “DCS” is a “company that provides hard drives for [police] at work where [police] can upload the audio.”

26 4RT 549.

27 11 The court notes that page 2 of the Trombetta/Youngblood motion does not have a stamped Clerk’s

Transcript page-number. See Dkt. 13-1 at 232. Thus, the missing page will be cited as “1CT 221-222.”

He spoke to Pham and recorded the conversation. 4RT 547-48. Afterwards, Officer Heinrich

claims he attempted to upload the recorded statement to the DCS, stating as follows: “You just

connect your recording device usually through a USB cable. And then it’s just a series of

programs you have to open and then windows you have to open to get it to successfully upload

onto the server.” 4RT 548-549. Officer Heinrich recalled going through the motions of uploading

the statement and believed he had done so. 4RT 549. He noted in his police report that he had

uploaded the statement. 4RT 549; see 1CT 229.

Officer Heinrich had since searched for a copy of the audio recording of Pham’s statement,

but he could not locate it. 4RT 549-550. When the prosecutor asked whether Officer Heinrich

had any personal knowledge what had happened to it, the following exchange took place:

A. Quite honestly, I think that I—I mean, I went through the motions like I normally

do. I think I just made an error, and it didn’t upload correctly.

[PROSECUTOR] Q. Are you guessing you must have made an error, or you are not sure?

A. No, I made an error because it’s not on the server. So I didn’t upload it correctly.

Q. Is it possible it was deleted?

17 A. Deleted—yes, it’s possible it just got lost in digital space.

18 . . . .

19 [DEFENSE COUNSEL] MS. WALLMAN: Q. Officer Heinrich, you said you uploaded

it onto the server, but it was never there.

21 A. I went through the motions to upload it the way I normally do, and obviously I

didn’t do it correctly and it’s not uploaded to the server.

[PROSECUTOR] Q. But you don’t specifically recall making an error?

24 A. No.

4RT 549-50; see 4RT 582. The prosecutor also asked Officer Heinrich about whether the audio

recording could still be on his recording device, and the following discussion took place:

1 Q. Officer Heinrich, once you upload an audio onto the DCS server, what do you do

with your tape or your CD? Do you destroy it or do you keep it—

3 A. That’s kind of what we were talking about, because I don’t usually do that. So I

was checking my old recording devices, and it’s possible that I still have it on a work-

4 related USB, but I don’t have that on me to check it. So I’ll still go home and see if I have

my old USBs from two years ago, and maybe it has the information still and I’II be able to

5 upload.

Q. So it’s your custom not to destroy the actual file once you upload it?

A. No, not unless it’s a critical investigation where you are out of space from the older

8 case. But usually I’ll always try and keep it there in case something like this happens

where I made a mistake. And it’s a good habit to upload it again, you know.

Q. But to date you were not able to find your own copy?

11 A. Last night I wasn’t, but all I had last night was my recorder. And the USB devices

that I use are not with me right now. They are at my house.

Q. So you haven’t been able to find it as of now?

14 A. As of right now, no.

4RT 550-51. After hearing testimony from Officer Heinrich, the court and the parties agreed to

defer the issue to give the officer “the opportunity to make—to research and determine whether he

had his original USB drive that would contain this recording which occurred more than two years

ago” 4RT 552-553. After a subsequent search, Officer Heinrich reported to the prosecutor that he

could not locate the missing audio recording on any of his USB drives, and that he “doesn’t

believe there would be any recording anywhere else.” 5RT 726-727.

After hearing argument from the parties, the trial court denied petitioner’s

Trombetta/Youngblood motion, explaining as follows:

23 In totality, the evidence and the circumstances surrounding the failure to provide the

recording of the interview of the complaining witness, the Court rules and finds that the

24 officer involved did not act in bad faith. There was no bad faith involved in this case. The

Court also in review and in light of the evidence also does not find that the evidence was

material and exculpatory in nature. Unlike the evidence that was lost in the Youngblood

26 case where DNA was involved, here we have a recording of an interview of the

complaining witness where the officer also made a report, a written report, of the

27 interview. The officer was available to be cross-examined by the defense, and ultimately

1 the interview was reduced to writing as well. And for those reasons, the Court does not

find that the evidence was material or exculpatory in nature. Further, the defendant did not

suffer any prejudice or harm from it.

For all these reasons, the defense’s Trombetta/Youngblood motion is denied.

5RT 728.

Petitioner raised his destruction of evidence claim on collateral review, by first filing a

state habeas petition in the Santa Clara County Superior Court. See Resp. Exh. G. That court

denied his claim, explaining as follows:

Petitioner renews the Trombetta/Youngblood motion that was litigated in the trial court.

9 (California v. Trombetta (1984) 467 U.S. 479 [102 L. Ed. 2d 413], Arizona v. Youngblood

(1988) 488 U.S. 51 [102 L. Ed. 2d 281].) Under this line of cases a defendant can show a

due process violation if the state is responsible for the loss or destruction of evidence that

11 would have helped the defense. A defendant has to show either that there was an apparent

exculpatory value to the evidence or that it was lost/destroyed in bad faith. In Petitioner’s

12 case the trial court found there was no bad faith and that there was only speculation the lost

recording of the victim’s hospital interview would have any exculpatory value. “A trial

13 court’s ruling on a Trombetta motion is upheld on appeal if a reviewing court finds

substantial evidence supporting the ruling.” (People v. Montes (2014) 58 Cal. 4th 809,

837.) In Montes, supra, the exculpatory value of a blood sample was deemed speculative.

15 So too in this case Petitioner has provided only hopeful speculation that anything on the

recording would have been impeachment, rather than corroboration, of the trial evidence.

16 Closely on point is People v. Alexander (2010) 49 Cal. 4th 846, 878, in which the court

observed the “claim that the erased audio tape had exculpatory value is based on

speculation that something on it would have contradicted the evidence and testimony”

18 presented at trial.

Resp. Exh. J at 3-4. Petitioner raised her destruction of evidence claim in the state appellate and

supreme courts, both of which denied the claim summarily. See Resp. Exhs. K & L.

Where, as here, the last related state-court decisions have denied a claim summarily, the

court should “look through” the unexplained decisions by the state appellate and supreme courts to

the state superior court’s decision that does provide a reasoned decision. It should then presume

that the “unexplained decision adopted the same reasoning” as the last reasoned decision. Wilson,

138 S. Ct. at 1192.

The government has a duty to preserve material evidence, i.e., evidence whose exculpatory

value was apparent before it was destroyed and that is of such a nature that the defendant cannot

obtain comparable evidence by other reasonably available means. See Trombetta, 467 U.S. at 489;

Grisby v. Blodgett, 130 F.3d 365, 371 (9th Cir. 1997).

Although the good or bad faith of the police is irrelevant to the analysis when the police

destroy material exculpatory evidence, the analysis is different if the evidence is only potentially

useful: there is no due process violation unless there is bad faith conduct by the police in failing to

preserve potentially useful evidence. Illinois v. Fisher, 540 U.S. 544, 547-48 (2004); Youngblood,

488 U.S. at 58; United States v. Sivilla, 714 F.3d 1168 (9th Cir. 2013); Villafuerte v. Stewart, 111

F.3d 616, 625 (9th Cir. 1997). Potentially useful evidence is “evidentiary material of which no

more can be said than that it could have been subjected to tests, the results of which might have

exonerated the defendant.” Youngblood, 488 U.S. at 57. Another configuration of this test is that

a constitutional violation will be found if a showing is made that (1) the government acted in bad

faith, the presence or absence of which turns on the government’s knowledge of the apparent

exculpatory value of the evidence at the time it was lost or destroyed, and (2) that the missing

evidence is “of such a nature that the defendant would be unable to obtain comparable evidence by

other reasonably available means.” Sivilla, 714 F.3d at 1172 (internal quotation marks omitted).

Negligent failure to preserve potentially useful evidence is not enough to establish bad

faith and does not constitute a violation of due process. See Grisby, 130 F.3d at 371; see, e.g.,

Sivilla, 714 F.3d at 1172 (finding that where exculpatory value of destroyed evidence was not

apparent, government’s negligent failure to preserve it did not establish bad faith).

Here, the state courts reasonably applied Trombetta and Youngblood in rejecting

petitioner’s claim that the police failed to preserve potentially exculpatory evidence in the form of

an audio recording of Pham’s interview. As mentioned, the trial court held an evidentiary hearing

into petitioner’s Trombetta/Youngblood claim and heard testimony from Officer Heinrich. After

hearing that testimony, the trial court found no bad faith in the loss of the recording and

determined that the evidence was neither material nor exculpatory in nature. 5RT 728. The state

court’s factual findings—that there was no bad faith in the loss of the recording—is presumed to

be correct unless rebutted by petitioner. See 28 U.S.C. § 2254(e)(1). The record demonstrates that

petitioner had a full, fair and complete opportunity to present evidence in support of her claim to

the state court. Therefore, the court finds that the state court’s fact-finding process survives

intrinsic review. See Hibbler, 693 F.3d at 1146; Taylor, 366 F.3d at 999.

“Once the state court’s fact-finding process survives this intrinsic review . . . the state

court’s findings are dressed in a presumption of correctness. . . .” Taylor, 366 F.3d at 1000. As

explained above, “AEDPA spells out what this presumption means: State-court fact-finding may

be overturned based on new evidence presented for the first time in federal court only if such new

evidence amounts to clear and convincing proof that the state-court finding is in error.” Id. (citing

28 U.S.C. § 2254(e)(1)). In the instant matter, the state superior court upheld the trial court’s

findings and concluded petitioner had provided only “hopeful speculation” the lost recording

would have any exculpatory value. Resp. Exh. J at 3-4. On federal habeas review, that finding is

entitled to deference under section 2254(d)(2). Petitioner fails to present clear and convincing

evidence sufficient to overcome the presumption of correctness of the state court’s factual

findings.

However, the salient question under section 2254(d)(2) is whether the state superior court,

applying the normal standards of appellate review, could reasonably conclude that the trial court’s

findings are supported by the record. See Lambert v. Blodgett, 393 F.3d 943, 978 (9th Cir. 2004).

Here, petitioner claims the trial court erred in its findings that no bad faith was involved in

Officer Heinrich’s failure to preserve the audio recording and that such evidence was neither

material nor exculpatory in nature. Trav. at 21. She argues that her due process rights were

violated when the trial court failed to instruct the jury “on law enforcement’s failure to preserve

[Pham’s] first recorded interview.” Id. Petitioner offers nothing beyond disagreement with the

state court’s finding, see id. at 18-21, which is insufficient to satisfy her burden to overcome the

presumption by clear and convincing evidence. Indeed, the record shows that the trial court made

the finding that there were no bad faith actions on the part of Officer Heinrich, after listening to

his testimony that he made an apparent technical or user error in uploading Pham’s statement. See

4RT 546-52. The trial court was in the best position to assess Officer Heinrich’s credibility. See

Marshall v. Lonberger, 459 U.S. 422, 434 (federal habeas courts have “no license to redetermine

credibility of witnesses whose demeanor has been observed by the state trial court, but not by

them”). Further, petitioner’s claim that the missing audio recording was “likely exculpatory” was

rejected by the trial court, who found such evidence not to be material or exculpatory in nature

because “[t]he officer was available to be cross-examined by the defense, and ultimately the

interview was reduced to writing as well.” 5RT 728. The trial court also found that petitioner

“did not suffer any prejudice or harm from it.” 5RT 728. Those determinations were affirmed by

the state superior court that reviewed the record, including the transcript of Officer Heinrich’s

testimony and his written report of the interview. See Resp. Exh. J at 3-4.

In sum, petitioner has failed to demonstrate any flaw in the state court’s fact-finding

process, or present any evidence, let alone clear and convincing evidence, to support his claim. As

such, the court may properly defer to the state court’s findings. In this regard, the state superior

court reasonably denied this claim upon concluding that the trial court did not err in denying

petitioner’s Trombetta/Youngblood motion because petitioner failed to establish bad faith on the

part of police or that the contents missing audio recording would have been exculpatory. Based on

the foregoing, the state superior court’s rejection of this claim did not result in a decision that was

based on an unreasonable determination of the facts in light of the evidence presented. See 28

U.S.C. § 2254(d)(2). Accordingly, petitioner is not entitled to habeas relief on this claim.

3. SENTENCING CLAIM

Petitioner contends her sentence is cruel and unusual in violation of the Eight Amendment.

As mentioned, petitioner first raised this claim on collateral review in the Santa Clara County

Superior Court, which rejected this claim as follows:

Petitioner also presents a cruel and unusual punishment challenge to her sentence.

Lengthy gun enhancements, such as Petitioner received, are routinely upheld because the

27 “statutory provision punishes the perpetrator of one of the specified crimes more severely

1 for introducing a firearm into a situation which, by the nature of the crime, is already

dangerous and increases the chances of violence and bodily injury.” (See People v. Garcia

(2017) 7 Cal. App. 5th 941, 953, citing People v. Felix (2003) 108 Cal. App. 4th 994.)

3 Challenges similar to petitioner’s were rejected in People v. Riva (2003) 112 Cal. App. 4th

981, 1003, and People v. Martinez (1999) 76 Cal. App. 4th 489, in which the defendants

4 injured persons by shooting at them. In this case Petitioner fired multiple shots in the

general direction of two people and it seems to be just random luck that nobody was hurt

5 more seriously. In light of her individual culpability her cruel and unusual punishment

claim must be rejected.

Resp. Exh. J at 4. Petitioner raised her Eighth Amendment claim again on collateral review in the

state appellate and supreme courts, both of which denied the claim summarily. See Resp. Exhs. K

& L. As mentioned above, this court “look through” the state appellate and supreme courts’

summary denials to the state superior court’s reasoned decision, and then presume that the

California Supreme Court adopted the same reasoning. See Wilson, 138 S. Ct. at 1192.

A criminal sentence that is not proportionate to the crime for which the defendant was

convicted violates the Eighth Amendment. Solem v. Helm, 463 U.S. 277, 303 (1983). Yet

successful challenges to the proportionality of particular sentences are “exceedingly rare” outside

“the context of capital punishment.” Id. at 289-90. Eighth Amendment jurisprudence “gives

legislatures broad discretion to fashion a sentence that fits within the scope of the proportionality

principle—the precise contours of which are unclear.” Andrade, 538 U.S. at 76 (internal quotation

marks and citations omitted). “The Eighth Amendment does not require strict proportionality

between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly

disproportionate’ to the crime.” Ewing v. California, 538 U.S. 11, 23 (2003) (quoting Harmelin v.

Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring)). Where it cannot be said as a

threshold matter that the crime committed and the sentence imposed are grossly disproportionate,

it is not appropriate to engage in a comparative analysis of the sentence received by the defendant

to those received by other defendants for other crimes. See United States v. Harris, 154 F.3d

1082, 1084 (9th Cir. 1998).

The Supreme Court upheld a life sentence without the possibility of parole for an offender

whose sole felony conviction was for possessing 672 grams of cocaine. Harmelin, 501 U.S. at

961, 994. In Andrade, the Supreme Court, under the highly deferential AEDPA standard, upheld a

sentence of two consecutive terms of 25 years to life for the nonviolent theft of $150 worth of

videotapes. 538 U.S. at 63, 77.

Here, petitioner was sentenced to life with the possibility of parole consecutive to a

twenty-year sentence after being convicted of one count of attempted premeditated murder and

two counts of firing a gun from a vehicle at a non-occupant, with an enhancement on the

attempted murder count for discharging a firearm. 2CT 464-468. Her sentence consists of an

indeterminate term of life with the possibility of parole for the attempted premeditated murder,

and a consecutive determinate term of twenty years for personally discharging a firearm during the

attempted murder. 2CT 464-468; see also Cal. Penal Code §§ 187, 189(a), 664(a), 3046(a)(1),

12022.53(a)(l)&(18), (c). The trial court stayed her sentence on one of the counts of firing a gun

from a vehicle at a non-occupant, and her sentence on the other count was run concurrently. 2CT

464-468.

Here, petitioner has not shown that the state courts’ rejection of her sentencing claim was

objectively unreasonable. Petitioner was sentenced to an indeterminate life sentence plus a

consecutive twenty-year sentence for violent crimes, which involved the use of a firearm. If, as in

Harmelin, a life sentence for a single, nonviolent, drug-possession conviction did not violate the

Eighth Amendment, and if, as in Andrade, a sentence of fifty years to life for the nonviolent theft

of videotapes also did not, then petitioner’s sentence for her violent crimes also does not violate

the Eighth Amendment.

Petitioner’s claim that her sentence was cruel and unusual punishment is without merit, so

the state courts’ rejection of this claim was not contrary to, nor did it involve an unreasonable

application of, clearly established Federal law. Accordingly, petitioner is not entitled to relief on

this claim because she failed to allege any federal constitutional error.

4. IAC CLAIM

Petitioner claims that the first trial counsel she retained, Nelson McElmurry, Esq.,

provided ineffective assistance during the course of plea negotiations. Specifically, she asserts

that before trial, she rejected a twenty-year plea offer, but did so only because of ineffective

assistance of Attorney McElmurry.

As mentioned above, on the early morning of October 25, 2012, petitioner was arrested

and jailed. 1CT 42-44; 2CT 411. Four days later, on October 29, 2012, the District Attorney filed

a felony complaint against petitioner. 1CT 99. Petitioner’s maximum exposure under that

complaint was nine years consecutive to twenty years, or twenty-nine years. 1 CT 99-101.

Petitioner was initially represented by the Public Defender’s Office. See 1CT 102-106. On or

about December 10, 2012, however, petitioner released the Public Defender and retained Attorney

McElmurry, the attorney whose effectiveness she now challenges. 1CT 106. Attorney

McElmurry’s first appearance in court was also on December 10, 2012. 1CT 106. On December

20, 2012, Attorney McElmurry filed a motion to reduce petitioner’s bail. 1CT 108. In that

motion, Attorney McElmurry correctly stated petitioner’s then-exposure: nine years plus a twenty-

year enhancement, or twenty-nine years. 1CT 109. On December 28, 2012, the trial court denied

the motion. 1CT 118.

Almost a year later, on October 29, 2013, the parties appeared for the preliminary hearing.

lCT 1. Attorney McElmurry advised the trial court as follows:

MR. MCELMURRY: After consulting with Ms. Nguyen, she is—she would like to retain

different counsel at this point in time. She is not happy with the

20 overall progress of the case for various reasons and has indicated she

would like to seek different counsel before proceeding.

Additionally, an offer has been presented to her this morning

22 through me, and that was a 20-year top/bottom offer, which is

relatively significant, and she is asking for a brief continuance to at

least consider that even of one day.

In fairness to her, based on recent conversations with the previous

25 prosecutor in the case, our understanding was that there would be no

offers made or forthcoming. And so learning of one this morning

26 was certainly new for us and brand new for her to consider. And,

again, the 20-year offer is relatively significant, especially

considering that a life charge will likely be coming post-prelim. So

1 I think in light of that it’s—it puts her in a very difficult situation to

assess and decide whether or not that 20-year offer is in her best

interest.

THE COURT: All right. Do the people wish to respond?

[PROSECUTOR] MR. WASLEY: Yeah, briefly.

The people are asking to proceed today, Your Honor. My

understanding from Ms. Tran, whose case this is, is that she had

7 mentioned to Mr. Attorney McElmurry a week ago or two weeks

ago that he needs to come up with a number for her. She never

8 heard from him. I extended a 20-year offer today based on my

assessment of the case, and I think that is a fair disposition for an

9 early resolution. It also requires me to amend one of the

enhancements to make it a lesser enhancement. I do intend to send

this up should the facts present as a premeditated attempted murder.

I would object to a continuance. We have a witness who we

12 transported from San Joaquin County. He was here on a body

attachment. So it’s the time and place for preliminary hearing and

the people are asking to—either the defendant resolve the case or we

14 proceed to prelim.

15 THE COURT: All right. First with respect to counsel’s representation that Ms.

Nguyen wants to retain a different counsel, that request for a

16 continuance will be denied. This is the date of the preliminary

examination. The complaint in this matter was filed about a year

ago, so this case has been around for quite a while.

With respect to the offer being made today, I’m certainly agreeable

19 to trailing the matter till this afternoon at 1:30 to give your client a

couple of hours to think about it inasmuch as the representation’s

20 been made that previous to today no determinate offer was made in

the case. But in view of the fact that we have a witness who had a

body attachment issued and who is in custody solely due to the body

22 attachment, I’m not prepared to continue the case beyond the

trailing.

MR. MCELMURRY: Your Honor, in that case, we’ll proceed this morning.

THE COURT: Okay.

1CT 3-5. On November 20, 2013, petitioner was no longer represented by Attorney McElmurry

and was again appointed counsel from the Public Defender’s Office. 1CT 161. And, as

mentioned above, her case later proceeded to trial.

Petitioner raised this IAC claim on collateral review in state court, by first filing her state

habeas petition in the Santa Clara County Superior Court. Through her petition and her own

attached declaration, petitioner alleged as follows:

I hired Mr. Nelson Attorney McElmurry to represent me after I was arrested on

October 25, 2012. Mr. Attorney McElmurry had my case for about a year and came to

7 visit me about 3 to 4 times throughout that year. In the beginning he told me that I would

probably get a year or so for negligence discharge of a firearm. Later on, a couple months

8 down the line he told me that the D.A. was not budging and she wanted me to do the max.

She did not want to offer me any deals. He never discussed to me the severity of my

9 charges or explained to me about enhancements. I had no knowledge of the law or court

system. At the time I was still set on a single digit sentence because of what he told me in

the beginning. I did not think I could have ever ended up with so much time more less a

11 life sentence.

12 On the day of my Preliminary Hearing Mr. Attorney McElmurry came into the

holding cell and told me that my co-defendant just took a deal of 5 years and the D.A. just

13 offered me a 20 year deal. I was taken aback. I remember telling him “I can’t take 20

years. That is like a life sentence, I’ll be 50 years old when I get out” and he said “I know,

I wouldn’t take it either.” Then he left me in the holding cell and came back about fifteen

15 minutes later and Mr. Attorney McElmurry told me that if I didn’t take this offer that after

Pre-lim they would be adding life charges. When I heard this I panicked and was very

16 conflicted. I know I needed to think about this and get some more information before I

made a decision so I asked Mr. Attorney McElmurry to ask the court for more time so I

can consider my options. I wanted to get all the details and then talk to my family to get

18 their advice. I needed Mr. Attorney McElmurry to explain everything clearly to me so I

know what the 20 years consist of so I could make the best decision possible. He never

19 had time to explained what the life charges were going to be or how it was possible for me

to get that much time. Our conversation in the holding cell that day lasted no more than 5

20 minutes both times he came in to talk to me. Mr. Attorney McElmurry requested for a

continuance but the court did not grant it. I know that had the court gave me a continuance

and Mr. Attorney McElmurry took the time to explain to me about how much time each

22 charge carries, I would have known that the gun enhancement alone added up to 20 years.

Knowing that, I would have taken the offer but since I was not fully advised correctly I

23 denied the offer that day.

24 Resp. Exh. G (State Superior Court Pet., Exh. H at 1).

25 The state superior court ordered the prosecution to file an informal response to the habeas

26 petition. Resp. Exh. G, Order. The prosecution filed a response, which included a declaration

27 from Attorney McElmurry, which states a different version of events as follows:

1. My name is Nelson McElmurry, and I am an attorney licensed to practice in the State

of California. I represented My Loan Nguyen through preliminary hearing on the

3 above referenced case.

4 2. When I first appeared in the case, there was no offer to discuss with my client.

5 3. Through conversations with assigned [Deputy District Attorney (“DDA”)] Oanh Tran,

it was made clear that no offer would be forthcoming and we would have to make an

offer to the People if we wanted to resolve the case.

4. Ms. Nguyen made it clear she would only accept an offer of single digits and she

8 pushed for 5 years. I did in fact offer a 5 year prison term to DDA Tran which she

quickly rejected. I later asked for 7 and floated the idea of a 9 year offer to the people.

9 Each discussion of a single digit offer was met with a swift rejection.

5. In response to my repeated push for single digits, DDA Tran made it clear that they

11 would only consider a double digit number with a minimum of 15 and closer to 20.

12 6. I advised Ms. Nguyen that the only chance to settle the case would be if she authorized

me to offer double digits of 15 or more. I was advised to only offer what Ms. Nguyen

would accept.

7. Ms. Nguyen made it clear she would only authorize me to make a single digit offer of 5

15 years. I explained to her again that the single digit offers had been rejected. I advised

her to consider making a 15 year offer as it was double digits and noticeably higher

16 than 5 years but not quite 20 as the people suggested. She was absolutely set against

an offer of the magnitude. Although below DDA Tran’s suggested range, I suggested

Ms. Nguyen offer at least 10 to 12 years and she wouldn’t allow me to offer that either.

8. During ongoing discussions, we discussed the merits of her case, and although I could

19 see an argument against attempted murder, since she insisted she acted in self-defense,

she never intended to shoot at the victim, and did not intend to kill the victim but only

20 meant to scare her, I advised her that she could potentially get more time for assault

for each shot fired and the resulting enhancements, including 25 to life.

22 9. We discussed 25 to life based upon the infliction of great bodily injury [(“GBI”)] and

she understandably debated whether the injury suffered was considered GBI. The

23 point in sharing this information of course was to advise her of the potential exposure

she faced at trial.

10. Nonetheless, she would not authorize an offer over single digits. I explained that I

couldn’t negotiate further at that point since she didn’t authorize me and they weren’t

26 making any offers.

27 11. On the day of the preliminary hearing, DDA Brett Wasley appeared for DDA Tran and

1 offered 20 years. This was the first time we had received an offer and it was consistent

with their suggested range to us.

3 12. Ms. Nguyen asked for time to consider the offer. The court agreed to give her until

after the lunch hour but once she understood that she wouldn’t get a continuance to a

4 new court date to consider the offer, she decided to reject it and proceed forward with

the preliminary hearing.

13. Admittedly, she was given very little time to consider the offer. However, it was in

line with what DDA Tran had been suggesting all along.

14. Throughout these discussions with Ms. Nguyen, I made clear to her what her

8 sentencing exposure was both as to the charges she faced leading up to the preliminary

hearing and the consequences she faced if she were to proceed through preliminary

9 hearing. I advised Ms. Nguyen that she faced a maximum of 29 years in state prison

and a minimum of 25 years on the attempted murder charge and firearm enhancement

(5-7-9 on the attempted murder charge and 20 years on the firearm enhancement), and

11 that she potentially faced a life sentence after preliminary hearing if the District

Attorney added attempted premeditated murder charges and GBI enhancements.

15. I never told Ms. Nguyen that she would likely receive 1 year for negligent discharge of

a firearm. I agreed that 5 years was a substantial offer, but they wanted 15 or more and

14 she knew that. I would never suggest one year would suffice on a shooting case in

which the victim was hurt, albeit a flesh wound.

16. I advised Ms. Nguyen from early on that her biggest problem in the case were the

16 charged firearm enhancements, even more so that the attempted murder charge,

because that was where she was likely to rack up the most time.

Resp. Exh. H, Prosecutor’s Resp, Exh. 17 at 1-3 (McElmurry Decl. ¶¶ 1-16).

Petitioner submitted a reply, accompanied by another declaration, in which she stated, in

part, as follows:

21 I hired Nelson McElmurry to represent me after my arrest. Mr. McElmurry was my

attorney through the preliminary hearing.

Mr. McElmurry told me, shortly after my arrest, that I was probably looking at one year

23 incarceration and that I would most likely be convicted of negligent discharge of a firearm.

I had no idea what I could be facing in terms of incarceration or what charges I could be

convicted of. I relied on Mr. McElmurry for that information.

I am not a career criminal, so I had no other way of knowing what charges I could be

26 facing or how much time I could be sentenced to.

27 The reason I had a single digit figure in mind was because of what Mr. McElmurry had

1 told me at the beginning of my case. Mr. McElmurry never told me that I could be facing

decades, let alone a life sentence, until the morning of the preliminary hearing.

3 On the morning of the preliminary hearing, Mr. McElmurry told me that the District

Attorney had offered me a deal of 20 years. I was shocked, scared, confused, and had no

4 idea what to do. When I expressed this to Mr. McElmurry, he told me that he wouldn’t

take the deal as it was almost like a life sentence. We only conferred for about five

5 minutes. When I was told about the plea offer, that was the very first time I realized how

serious my situation was. I told Mr. McElmurry that I needed more time to consider the

offer. Five minutes was not enough time to make a life altering decision. Mr. McElmurry

7 did ask the court for a day’s continuance, but that was not granted.

8 When Mr. McElmurry and I were conferring for those few, brief moments, he mentioned

that “life charges” could be added later. However, he did not explain to me what “life

9 charges” meant. He did not tell me that a judge would not have discretion in sentencing. I

thought a life charge could carry a life sentence, not that it would irrespective of the

circumstances. Also, Mr. McElmurry never explained to me how the parole process,

11 works for an inmate sentenced to a life term in California. He never told me I would have

to appear before the Board of Parole Hearings in order to be considered for parole. He did

12 not tell me what would be required of me in order for me to be granted parole. He never

told me that a release would be guaranteed if I were to accept the plea whereas a release is

not a foregone conclusion under the sentence I received. Had I known about the process

14 for parole hearings alone, I would have accepted the plea offer.

15 Mr. McElmurry never told me how strong the prosecution’s case was against me. He

never indicated I could receive a life sentence based on the gun charge alone. He did not

16 tell me I was likely to be convicted based on my own statement, i.e., that I fired a gun in

the direction of people. That alone was sufficient for conviction irrespective of intent.

Instead of an honest evaluation of the facts, Mr. McElmurry initially gave me an entirely

18 inaccurate portrayal of the prosecution’s case and never really corrected that portrayal.

19 Mr. McElmurry and I briefly spoke about the GBI allegation, but he never told me the gun

enhancement alone could carry a term of 25 to life. He never explained all of the time I

20 was facing were I to be convicted.

Had Mr. McElmurry told me how strong the prosecution’s case was from the beginning,

22 and told me exactly how much time I was facing, I would have accepted the plea offer with

no hesitation.

Resp. Exh. I, Pet. Reply at Exh. 1 (emphasis in original and paragraph numbers omitted).

The state superior court denied her IAC claim as follows:

. . . Petitioner has claimed that she received ineffective assistance of counsel during the

26 course of plea negotiations. More specifically, Petitioner has asserted that her attorney

unrealistically led her to believe that a reasonable sentence in this case would be something

in the “single digits” (i.e. no more than 9 years). This expectation, allegedly fostered and

1 maintained by counsel, led her to reject a plea bargain offer of 20 years. Petitioner was

sentenced after trial to a term of life with the possibility of parole for attempted murder,

and a consecutive term of 20 years for the firearm enhancement. Petitioner cogently and

3 consistently asserts that she relied upon counsel’s assessment of the case and he never

explained her realistic sentencing exposure, the strength of the prosecution’s case, or what

4 a “life” sentence practically meant.

5 Counsel’s declaration tells a different story, one of the client’s unrealistic

expectations and of his attempts to impress upon her

This text is long and has been trimmed here. Open the source document for the complete record.

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