Supplemental Appendix — Hien An Dao v. Alameida

4 \

9) Supraipe Ceurt, US.

i 2 2

FILE

0218 6 1 JUN 12 2003

IN THE

Supreme Court of the United States

HIEN AN DAO,

Petitioner

Vv.

C.A. TERHUNE, Director,

California Department of Corrections,

Respondent

On Petition For Writ Of CertiorariFo The United

States Court Of Appeals For The Ninth Circuit

SUPPLEMENTAL APPENDIX TO PETITION

FOR WRIT OF CERTIORARI

Sanford H. Perliss, Esq.

Counsel of Record

PERLISS & GROSS

555 S. Flower Street,

Suite 4520

Los Angeles, CA 90071

213-627-0218

Table of Contents

Page

Order Adopting Report and

Recommendation of United States

PTI FW ccsnneincsincnrniniiniinvinees App.34

Report and Recommendation of a

United States Magistrate Judge................. App.36

; Table of Authorities

Page

Cases

California v. Green, 399 U.S. 149, |

ELD: 1, | epee rae Oe er Pre: App.45 |

Christian v. Rhode, 41 F.3d 461, |

468 (9th Cr. 1999)... es App.46

Brecht v. Abrahamson, 507 U.S. 619

CED in cos civccaeovinon cane ae App.52

Delaware v. Van Arsdale, 475 U.S. 673,

ORF ciiccdcouwanen aaa App.50

Hernandez v. Small, __ F.3dat_,

BIOL WE, FIR necsinigira ees App.46, 47

Hunter v. Aispuro, 982 F.2d 344,

348 (9th Cir. 1992), cert. denied, 510

U0. S87 (ISR ad.....2..05G oneness App.45

Lilly v. Virginia, 527 U.S. 116 (1999)..... App.46, 47

Maryland v. Craig, 497 U.S. 836,

OES (IGG. ois. cinco neaee eee App.46

Moore v. Calderon, 108 F.3d 261,

263 (9th Cir.), cert. denied, 512 US.

L111 (1997)... cesses. igs a er App.43

Ohio v. Roberts, 448 U.S. 56 (1980)....... App.46

Pennsylvania v. Ritchie, 480 U.S. 39,

PE CYB Riisaciccockint thane eee App.45

United States v. Bowman, 215 F.3d 951

ae | Gnennmenee irri hts App.50

Van Tran v. Lindsey, 212 F.3d 1143,

15EMMECE)........6 App.44

Weeks v. Angelone, 528 U.S. 225,

BIN COI isnt eos ae ee App.50

Constitutional Provisions

Sixth Amendment...

Statutory Provisions

~Antiterrorism and Effective Death

Penalty Act of 1996 (“the AEDPA”).......

California Penal Code 7.)

hee a ee

lil

App.44

App.45

App.45

App.43, 44

App.34

App.43, 44,

45, 52

SUPPLEMENTAL APPENDIX

ENTERED

CLERK, U.S. DISTRICT COURT

MAY 17 2002

CENTRAL DISTRICT OF CALIFORNIA

FILED

CLERK, U.S. DISTRICT COURT

MAY 16 2002

CENTRAL DISTRICT OF CALIFORNIA

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

HIEN AN DAO, ) Case No. CV 01-2422-

Petitioner, ) AHM(RC)

)

VS. ) ORDER ADOPTING

) REPORT AND

C.A. TERHUNE, Director, ) RECOMMENDATION

California Department of ) OF UNITED STATES

Corrections ) MAGISTRATE JUDGE

Respondent. )

)

Pursuant to 28 U.S.C. Section 636, the Court has

reviewed the Petition and other papers along with the

attached Report and Recommendation of United States

Magistrate Judge Rosalyn M. Chapman, as well as

petitioner’s objections, and has made a de novo

App.34

determination.

IT IS ORDERED that (1) the Report and

Recommendation is approved and adopted; (2) the Report

and Recommendation is adopted as the findings of fact and

conclusions of law herein; and (3) Judgment shall be

entered denying the petition and dismissing the action with

prejudice. The Court has corrected a typographical (name)

error at p. 15:10, and the above three items are subject to

that correction, which substitutes “Lam” for “Dao.”

IT IS FURTHER ORDERED that the Clerk shall

serve copies of this Order, the Magistrate Judge’s Report

and Recommendation and Judgment by the United States

mail on the parties.

DATE: May 16, 2002 s/

A. HOWARD MATZ

UNITED STATES

DISTRICT JUDGE

App.35

FILED

CLERK, U.S. DISTRICT COURT

MAR 2 2002

CENTRAL DISTRICT OF CALIFORNIA

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

HIEN AN DAO, ) Case No. CV 01-2422-

Petitioner, ) AHM(RC)

)

VS. ) REPORT AND

) RECOMMENDATION OF

C.A. TERHUNE, Director, ) A UNITED STATES

California Department of ) MAGISTRATE JUDGE

Corrections )

Respondent.

)

)

This Report and Recommendation is submitted to

the Honorable A. Howard Matz, United States District

Tudge, by Magistrate Judge Rosalyn M. Chapman, pursuant

to the provisions of 28 U.S.C. § 636 and General Order 01-

13 of the United States District Court for the Central

District of California.

BACKGROUND

I

On July 21, 1998, in Superior Court for the County

of Los Angeles case no. KA035193, petitioner Hien An

Dao was convicted by a jury of the first degree murder of

App.36

Lin Bao Vuong in violation of California Penal Code

(“P.C.”) § 187(a), and the jury also found that petitioner

personally used a firearm in the commission of the murder

within the meaning of P.C. § 12022.5(a), that a principal

was armed with a firearm in the commission of the murder

within the meaning of P.C. § 12022(a)(1) and that the

murder was gang-related within the meaning of P.C. §§

186.22(b)(1) and 186.22(b)(4). Return to Petition for Writ

of Habeas Corpus (“Return”), Exh.A at 3]! The petitioner

was sentericed to 25 years to life, plus five years on the

personal use of a firearm enhancement, for a total term in

state prison of 30 years to life. Id. At 32.

The petitioner appealed his conviction to the

California Court of Appeal, which in an unpublished

opinion filed December 13. 1999, affirmed the judgment:

however, Judge Mallano was of the opinion the judgment

Should be reversed. Return, Exh. B. On January 21, 2000,

petitioner, through his counsel, filed a petition for review in

the California Supreme Court, which was denied on March

15, 2000. Return, Exh. C.

II

The California Court of Appeal, in affirming the

petitioner’s conviction, made the following findings

regarding his and Lam’s case:? The Asian Boyz gang and

the Wah Ching gang are criminal Street gangs, which in

1994 were rival gangs at war with each other. In

January of 1994, Dao, Lam, Jason Ching (“Ching”) and Sat

1. The petitioner was jointly tried with co-defendant Hung

Xuong Lam.

2. See Return, Exh. B at 36-39.

App.37

Tai Yu (“Yu”) were members of the Los Angeles chapter of

the Asian Boyz gang. A member of the Wah Ching gang

had recently shot Yu in the leg. During that January, Dao,

Lam, Ching, Yu and Jimmy Quach (“Quach”)(who

associated with the Asian Boyz gang but was not a

member) “partied” for a couple of weeks in a room at the

Travel Lodge Motel on Colorado Boulevard in Pasadena.

On January 21, 1994, Lam had a small

semiautomatic handgun in the motel rvom. He shared the

gun with Dao. They would not let anyone else touch the

weapon. Ching and another person in the motel room also

had a gun. At approximately 8:00 p.m. that evening, Yu

asked Quach if he could borrow Quach’s car, a blue Honda.

Quach agreed, and Yu said he was going to get some food

for the grovn and to rob a car so they would have money for

the motel room and other expenses.

Yu drove away with Quach’s car and was

accompanied by Lam and Dao and another member of the

Asian Boyz named John. Yu observed that both Lam and

Dao had guns in their possession. Yu drove the Honda and

followed a van driven by another member of the Asian

Boyz named Player. Other Asian Boyz gang members,

Ching, Quong Phan (“Phan”), Peter, Vincent, Teaser, and

Hitman, were also in the van. Yu followed the van to the

Pasadena Arcade, and soon.thereafter followed it to the

Arroyo Pool Hall in El Monte.

Huy Huu Tieu (“Tieu”), his uncle Mark, Lin Bao

Vuong (also known as Mike), Tan Vuong, and two girls,

Kim and Linn, had arrived at the pool hall at approximately

8:30 p.m. While they were shooting pool, Lin Bao Vuong

received a page on his pager from one of his friends. Lin

App.38

Bao Vuong, Tieu, Tan Vuong and a person referred to as

Hoan then went outside to a telephone booth near the pool

hall door, and Lin Bao Vuong made a telephone call.

While Lin Bao Vuong was speaking on the phone,

Yu drove into the pool hall parking lot. He stopped the

Honda in front of the phone booth after Lam told him to

stop the vehicle. Everyone inside the Honda identified

himself as associated with the Asian Boyz and asked Tieu,

Lin Bao Vuong, and the others at the phone booth if they

were from Wah Ching. John and Dao got out of the Honda.

Dao held a semiautomatic handgun, and John made

motions in the area of his waistband as if he had a weapon

there. Dao and John both said, “Fuck Wah Ching.” When

Tieu protested he was not from Wah Ching, Dao and John

got back inside the Honda.

The Honda was driven away from the phone booth,

but then backed up and returned to the area. A young Asian

male ran from the side of the pool hall building up to the

phone booth. Lin Bao Vuong said, “What’s up, Puppet?”

All the occupants of the Honda got out and went with

Puppet to where Tieu ard Lin Bao Vuong were standing.

One of the people from t..e Honda demanded that Tieu give

him his pager and money. Tieu handed over his pager but

did not have any money with him.

Tieu ran away after he saw one of the people punch

Lin Bao Vuong. Ching ran up from the van and also

punched Lin Bao Vuong in the body and face. As Ching

punched him, he stated, “Ex-Asian Boyz” and asserted Lin

Bao Vuong had joined the Wah Ching gang. Yu and two

other Asian Boyz members also joined in hitting Lin Bao

Vuong. Meanwhile, Phan held a stick or pole as he

App.39

a aaa cc el

challenged a person near the entrance to the pool hall,

asking him what gang he was from.

Yu walked back to the Honda and told Dao and

Lam to leave. Lam fired two shots into the air, and Dao

turned around and fired one to three shots. Lam and Dao

got back into the Honda, and then both the Honda and the

van returned to the Travel Lodge Motel.

That evening at approximately 10:00 p.m.,, El

Monte Police Officer Dennis Miller arrived at the Arroyo

Pool Hall and observed Lin Bao Vuong lying on the ground

near the phone booth outside the pool hall. He was still

alive, and paramedics were called to the scene. Officer

Miller found three expended small caliber bullet casings in

the parking lot near the victim. Thereafter, El Monte Police

Detective Kenneth Whary arrived at the scene and

observed, in addition to the three expended .25 caliber

casings found by Officer Miller, an expended bullet on the

ground

At the Travel Lodge Motel that evening, Quach

observed that Dao was jumpy and excited and that Lam was

rather quiet. Lam had a gun, and Quach saw him hide the

weapon in a laundry bag in the motel room. Dao yelled out

that no one should say anything or he would kill him. Dao

also said that in case anyone asked, they should say that

Puppet from the Hellside gang did it. Dao also indicated

that the whole group, including Lam and Ching, had been at

the Arroyo Pool Hall. While the people in the motel room

were talking, Quach heard them say they thought the victim

was Mike or Mickey

Several days later Dao told Yu that he had thrown

App.40

his gun in the sewer. Yu asked Dao what had happened.

Dao replied, “Ex-Asian Boyz.” Dao also said, “I think I

shot him.” Sometime after Lin Bao Vuong had been shot,,

Tam Tran (“Tran”), a girlfriend of one of the Asian Boyz,

was present in the motel room at the Travel Lodge Motel.

She heard Lam say he had shot “the guy” at close range

with a .22 or .25 caliber gun, and that the person who got

shot was an ex-Asian Boyz member who had joined the

Wah Ching gang? Lam and Dao also told Tran that they

were together when it happened, and they had used a Honda

Accord. Dao further indicated to Tran that at the time of

the incident there were some young girls in front of the pool

hall.

On January 24, 1994, Detective Whary returned

with his partner to the scene of the shooting. They

discovered on the ground two additional expended bullets.

Lin Bao Vuong had died from a gunshot wound to the head.

An autopsy indicated he had several bruises about his body

and five gunshot wounds. including a fatal through-and-

through wound to the head. The bullet entered the left back

of his head and exited at his nght eyebrow. Lin Bao Vuong

also sustained one bullet wound to the left arm, one wound

to the left thigh, and two wounds to the right thigh. The

coroner also observed a partially removed Asian Boyz

tattoo on one arm. Lin Bao Vuong was 14 years old at the

time he was killed.

3. On cross-examination. Tran testified it was Dao, not Lam.

who had told her that they killed a person with a .22 or .25 caliber

handgun. At the time of her testimony, Tran was on probation for her

role as an accomplice in the so-called San Marino murder case. in

which two people had been killed.

App.4]

In October of 1994, Los Angeles County Sheriff

Sergeant Rudy Ortega interviewed Quach. Quach stated

that Dao had told him that Dao had shot the victim and had

gotten away with it, Sergeant Ortega thereafter interviewed

Yu, who stated he had seen Lam in possession of a black

.22 caliber automatic before anybody left Quach’s vehicle.

Ballistics tests disclosed that the expended bullets found at

the scene of the shooting and the two bullets recovered

from the victim’s body were .25 caliber bullets, which

could have been fired from the same gun.

Gee ——_

Los Angeles County Sheriff Sergeant William

Howell testified at trial as an expert on Asian gangs in Los

Angeles County. According to him, Asian Boyz gang

members would not spontaneously engage in a violent act.

Assuming members of that gang were involved in the

homicide of Lin Bao Vuong, Sergeant Howell opined they

committed the crime to promote the Asian Boyz gang by

instilling fear in any rival gang and giving the Asian Boyz

respect.

In Dao’s and Lam’s defense at trial, Kenneth

Chang, an acquaintance of Dao’s defense counsel, indicated

that it is possible to join the Asian Boyz gang and thereafter

leave the gang. A person could leave the gang by getting

‘jumped out,” meaning leaving after several older boys beat

up the departing gang member. Chang had left the gang

after approximately a year and knew of several others who

also were former Asian Boyz members. While Chang was

a member, it was primarily a social group and did not

engage in major crimes.

Il]

On March 31, 2001, petitioner, through his attorney, v!

App.42

filed the pending petition for writ of habeas corpus, which

raises the sole claim that the “admission of the

nontestifying accomplice’s [Phan’s] statement to law

enforcement while in custody, to prove petitioner’s guilt,

violated his Confrontation Clause Rights.” Petition at 6.

On May 8, 2001, the respondent filed an answer, and the

petitioner filed a traverse on July 11, 2001.

DISCUSSION

IV

The petitioner’s claims must be considered in light

of the Antiterrorism and Effective Death Penalty Act of

1996 (“the AEDPA”), which worked substantial changes to

the law of habeas corpus. Moore v. Calderon, 108 F.3d

261, 263 (9th Cir.), cert. demied, 512 U.S. 1111 (1997). Of

specific importance to the petitioner’s claim are the

revisions made to 28 U.S.C. § 2254(d), which now

provides that:

An application for a writ of habeas corpus

on behalf of a person in custody pursuant to

the judgment of a State court shall not be

granted with respect to any claim that was

adjudicated on the merits in State court

proceedings unless the adjudication of the

claim (1) resulted in a decision that was

contrary to, or involved an unreasonable

application of, clearly established Federal

law, as determined by the Supreme Court of

the United States; or (2) resulted in a

decision that was based on an unreasonable

determination of the facts in light of the

evidence presented in the State court

proceeding.

App.43

28 U.S.C. § 2254(d). The United States Supreme Court has

clarified the meaning of the key clauses in Section 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 Supreme]

Court has on a set of materially indistinguishable

facts. 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 [petitioner’s] case.

Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495,

1523, 146 L.Ed.2d 389 (2000); see also Van Tran v.

Lindsey, 212 F.3d 1143, 1153-54 (9th Cir.)([A]n

‘unreasonable application of clearly established federal law

[occurs] when [this Court's] independent review of the legal

question does not merely allow [it] ultimately to conclude

that the petitioner has the better of two reasonable legal

arguments, but rather leaves [the Court] with a ‘firm

conviction’ that one answer, the one rejected by the [state]

court, was correct, and the other, the application of the

federal law that the [state] court adopted, was erroneous --

in other words that clear error occurred.’’). cert.denied, 53 1

U.S. 944 (2000).

Further, under the AEDPA, a federal court shall

presume that the determination of a factual issue made by a

state court is correct, and the petitioner has the burden of

App.44

rebutting that presumption by clear and convincing

evidence. 28 U.S.C. § 2254(e)(1).

The California Supreme Court reached the merits of

petitioner’s claims when it denied his petition for review

without citation to authority or a written opinion. Hunter v.

Aispuro, 982 F.2d 344, 348 (9th Cir. 1992), cert. denied,

510 U.S. 887 (1993). However, "where there has been one

reasoned state judgment rejecting a federal claim, later

unexplained orders upholding that judgment or rejecting the

same claim rest upon the same ground," YIst v.

Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 2594, 1 15

L.Ed.2d 706 (1991). Thus, in addressing petitioner's

claims, this Court will consider the reasoning of the

California Court of Appeal, which issued a written .

decision.

>.

The Confrontation Clause of the Sixth Amendment

provides that “[in] all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses

against him... ." U.S. Const. amend. VI. The

confrontation clause of the Sixth Amendment provides a

criminal defendant with the right to face those who testify

against him and the right to conduct cross-examination.

Pennsvivania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989,

998, 94 L.Ed.2d 40 (1987). The right to confront a witness

serves the purposes of insuring reliability by means of oath,

exposing the witness to cross-examination, and permitting

the trier of fact to weigh the demeanor of the witness.

California v. Green, 399 U.S. 149, 158, 90S Ct. 1930,

1935, 28 L.Ed.2d 489 (1970). "The central concern of the

Confrontation Clause is to ensure the reliability of the

App.45

evidence against a criminal defendant by subjecting it to

rigorous testing in the context of an adversary proceeding

before the trier of fact." Maryland v. Craig, 497 US. 836,

845, 110 S.Ct. 3157, 3163, 111 L.Ed.2d 666 (1990),

Christian v. Rhode, 41 F.3d 461, 468 (9th Cir. 1994).

A defendants right to confrontation, however, is not

absolute, In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531,

65 L.Ed.2d 597 (1980), the Supreme Court formulated a

two-part test for determining the admissibility in a criminal

proceeding of an out-of-court statement. “First, in

conformance with the Framers’ preference for face-to-face

accusation, the Sixth Amendment establishes a rule of

necessity. In the usual case, . . . the prosecution must either

produce, or demonstrate the unavailability of, the declarant

whose statement it wishes to use against the defendant. Id.

at 65, 100 S.Ct. at 2538. Second, once the declarant is

shown to be unavailable, the prior testimony is admissible

“only if it bears adequate ‘indicia of reliability.’ Reliability

can be inferred. . . where the evidence falls within a firmly

rooted hearsay exception . . . [or contains] particularized

guarantees of trustworthiness." Id. at 66, 100 S.Ct. at 2539;

Lily v. Virginia, 527 U.S. 116, 124-25,-119 S.Ct. 1887,

1894, 144 L.Ed.2d 117 (1999); Christian, 41 F.3d at 467.

The United States Supreme Court in Lilly “was

directly presented with the question whether the declaration

against penal interest exception to the hearsay rule

constitutes a firmly rooted exception.” Hernandez v. Small,

___ F.3dat___, 2002 WL 356296, *4. The Ninth Circuit

has noted that in Lily, the plurality of the Supreme Court

divided the declaration against penal interest exception to

the hearsay rule (which the California Court of Appeal

found applicable here) into three subcategories;

App.46

(1) voluntary admissions against the

declarant; (2) exculpatory evidence offered by a

defendant who claims that the declarant committed,

or was involved in, the offense, and (3) evidence

offered by the prosecution to establish the guilt of

an alleged accomplice of the declarant. In the third

subcategory, . . . the plurality concluded that

declarations against penal interests ‘are not within a

firmly rooted exception to the hearsay rule as that

concept has been defined in our Confrontation

Clause jurisprudence,’ where the statements are

‘accomplices’ confessions that inculpate a criminal

defendant.’

Id. at *4-5 (citing Lilly, 527 U.S. at 127, 134). As to the

third subcategory of statements, the Ninth Circuit further

noted that the plurality of the Supreme Court explained that

within that subcategory “a certain further subset of

statements, i.e., statements which attempt to shift or to

spread blame by inculpating both the accomplice and the

defendant, is inherently untrustworthy.” Id. At *7 (citing

Lilly, 527 U.S. at 131). The Ninth Circuit in Hernandez

then distinguished that subset of the third subcategory

statements from the situation before it.

Let us now look at Phan’s statements, which the

California Court of Appeal summarized, as follow:

Phan{ ] acknowledg[ed] that he was one of the

passengers in the van which left the motel and

eventually drove to the Arroyo Pool Hall. Phan told

Sergeant Ortega the names of the people in the van

with him and that Dao was armed with a 38 caliber

semiautomatic pistol. Accompanying the van was

App.47

the Honda, in which Dao, Lam, Yu and anothor

person rode. When Phan was at the pool hall, he

saw Dao waving the gun inside the Honda. He also

saw the people from the Honda approach those by

the phone booth. Ching got out of the van and ran

over to the group by the phone booth, while Phan

went to the entrance of the arcade, held a stick or

pole, and issued a gang challenge to someone at the

entrance by asking what gang he was from. []]

Phan further related to Sergeant Ortega that Ching

hit one of the people in the group by the phone

booth. Someone from Phan's group also took a

pager from one of the people in the group by the

phone booth. Phan then heard gun shots, but he did

not tell Sergeant Ortega who fired the shots. Phan

asserted he did not see Lam shoot a gun, hold a gun,

or run away.

Return, Exh. B at 40 n.4.

on

The California Court of Appeal, first, found that

Phan was “unavailable” as a witness,* Id. at 41. Second,

the California Court of Appeal analyzed Lilly and properly

concluded that Phan's statements, as an accomplice's

statements against penal interest, did not come within a

“firmly rooted” hearsay exception for the purposes of

confrontation clause analysis. In fact, Phan's statements

come within Lilly's third subcategory of statements, but not

within the subset which is inherently untrustworthy because

it attempts to shift the blame to the defendant. Thus,

4. Neither petitioner nor respondent challenges the state court's

determination that Phan was unavailable as a witness.

App.48

although not coming within a firmly rooted exception to the

hearsay rule, Phan's statements are not inherently

untrustworthy.

To determine the trustworthiness of Phan's

statements, the California Court of Appeal considered the

circumstances surrounding Phan's statements to determine

whether they bore “particularized guarantees of

trustworthiness.” Specifically, the California Court of

Appeal found that “Sergeant Ortega did not make any

provision of leniency [to Phan] when Phan made the

statements... .” Id. at 44 n. 6. The Court of Appeal further

found:

Phan was subpoenaed as a witness by the

prosecution in the present case. The prosecutor had

drafted a letter addressed to the Board of Prison

Terms which stated that Phan had testified truthfully

in the present case and this testimony was extremely

helpful [to] the prosecution. The prosecutor advised

Phan that he would send this letter if in fact Phan

cooperated. He also advised Phan that in the event

Phan refused to testify he would send a letter to the

Board of Prison Terms advising them [sic] of Phan's

failure to cooperate. Phan’s refusal to testify thus

could indicate his prior statements to the officer

were not “motivated by a desire to curry favors with

the authorities.” He, in fact, exposed himself to the

prosecutor’s damaging letter to be sent to the Board

of Prison Terms by his refusal to testify at trial.

Id. Inferentially, the Court of Appeal then determined that

Phan’s statements had “indicia of reliability” because, in

part, “(t]he statements were sufficient to subject Phan to

App.49

criminal liability for the murder of Lin Bao Vuong as an

aider and abettor in [Lam’s and Dao’s] killing of Vuong.”

Id. at 42-43 (citations omitted).

Moreover, the admission of Phan's statements did

not violate petitioner’s rights under the confrontation clause

because the jury was instructed that Phan was an

accomplice as a matter of law and that his testimony should

be viewed: with caution, and that they may only consider his

testimony if it was corroborated by other evidence.

Reporter's Transcript (“RT”) 1001:24-1004:11. This court

must assume that the jury followed its instructions and gave

no weight to Phan’s statements unless the jury found they

were corroborated by other independent evidence. Weeks

v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 733, 145

L.Ed.2d 727 (2000) (“[a] jury is presumed to follow its

instructions”). Under these circumstances, Phan's

statements did not harm petitioner.

Finally, “[a] Confrontation Clause violation is

subject to harmless error analysis. Delaware v_ Van

Arsdale, 475 U.S. 673, 681-84, 106 S Ct. 1431, 89 L-Ed. 2d

674 (1986); United States v._ Bowman, 215 F.3d 951, 961

(9th Cir 2000). In assessing whether a violation of the

confrontation clause was prejudicial, courts should consider

the importance of the testimony to the entire case, whether

the testimony was cumulative, whether corroborating or

contradictory evidence existed, and the overall strength of

the government’s case. Van Arsdale, 475 U.S. at 684, 106

S.Ct. at 1438.

The California Court of Appeal concluded that any

error in admitting Phan’s statements was harmless:

App.50

We find that even assuming arguendo error

regarding the admission of Phan’s statements

through the testimony »f Sergeant Ortega, any error

was nonprejudicial. }Lam and Dao] emphasize that

Phan placed [them] at the crime scene and Dao was

the only person Phan claimed to see armed. Yu had

been granted immunity and was an accomplice.

Nonetheless, Yu testified that both Dao and Lam

fired shots just after Vuong was beaten.

Nonaccomplice Tran testified that Dao told her he

and Lam had killed a person with a .22 or .25

caliber handgun. A bullet from a .25 caliber gun in

fact killed Vuong. Nonaccomplice Quach testified

that after the fatal shooting, he saw Lam hide a gun

in a laundry bag in the motel room, and Dao yelled

that no one should say anything or he would kill

him. Dao also said the entire group, including Lam

and Ching, had been at the Arroyo Pool Hall

Several days later, Dao told Yu that he had thrown

his gun in the sewer. When Yu asked Dao what had

happened, he replied “Ex-Asian Boyz,” and said, “I

think I shot hlm.” Quach told Sergeant Ortega that

Dao told him that Dao shot the victim and got away

with it. Quach was not an accomplice or involved

in any pending criminal matter. [{] We also note

that Sergeant Ortega’s testimony about Phan’s

statement was, in view of the testimony of other

witnesses, actually of some assistance to [Lam and

Dao]. Phan placed Dao at the scene waving a gun

around. However, Phan indicated that Dao was in

possession of a .38 caliber gun (not a .25 caliber

gun), and that he did not see who fired the shots

Phan also indicated he did not see Lam with a gun.

Indeed, consistent with Phan's testimony, the jury

App.51

found Lam had not used a weapon and was

convicted of the lesser offense of second degree

murder. [] Under such circumstances, it is most

unlikely the jury would have rendered a verdict

more favorable to [Lam and Dao] if Sergeant Ortega

had not testified at all regarding Phan’s statements

to him. Accordingly, even assuming arguendo error

in admitting Sergeant Ortega’s testimony about

Phan’s statements to him, under any standard of

review its admission would be harmless.

Id. at 44-45 (citations omitted).

Here, Phan’s statements that petitioner and Dao

were carrying guns when they went to the Arroyo Pool

Hall, that both were present when shots were fired, and that

upon returning to the hotei Dao admitted he had shot

Vuong, were consistent with the testimony of Yu, Tran and

Quach. See, e.g., RT 402-415, 628-680, 788. Thus, Phan’s

statements were incriminating to petitioner only in

confirming that petitioner was armed and was at the scene

of the shooting -- evidence also provided by the testimony

of other witnesses. Moreover, the prosecution did not

comment at length or unduly focus on Phan’s statements.

For all these reasons, the admission into evidence of Phan’s

statements, even if error, was harmless. Brecht v.

Abrahamson, 507 U.S. 619, 622, 113 S.Ct. 1710, 1714, 123

L.Ed 2d 353 (1993).

Thus, the California Supreme Court’s denial of this

claim was neither contrary to, nor an unreasonable

application of, clearly established federal law, as

determined by the United States Supreme Court. 28 U.S.C.

§ 2254(d)(1).

App.52

RECOMMENDATION

IT IS RECOMMENDED that the Court issue an

Order: (1) approving and adopting this Report and

Recommendation; (2) adopting the Report and

Recommendation as the findings of fact and conclusions of

law herein; and directing that Judgment be entered denying

the petition and dismissing the action with prejudice.

_ DATE: March 21, 2002 s/

ROSALYN M. CHAPMAN

UNITED STATES

MAGISTRATE JUDGE

App.53

Sanford H. Perliss, Esq

Counsel of Record

PERLISS & GROSS

555 S. Flower Street,

Suite 4520

Los Angeles, CA 9007]

213-627-0218

App.54