# Supplemental Appendix — Hien An Dao v. Alameida

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1746%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Supplemental Appendix
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 826

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1746%3A2. Public record. Not legal advice.