Phan v. Haviland, 2: 09 - cv - 2040 - GEB TJB

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Decision Date25 August 2011
Docket Number2: 09 - cv - 2040 - GEB TJB
PartiesBRUCE PHAN, Petitioner, v. JOHN W. HAVILAND, Warden Respondent.
ORDER, FINDINGS AND
RECOMMENDATIONS
I. INTRODUCTION

Petitioner, Bruce Phan, is a state prisoner and is proceeding through counsel with a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After a jury trial, Petitioner was found guilty of second-degree murder and attempted murder along with corresponding enhancements that he personally used a firearm, personally discharged a firearm and caused great bodily injury or death by using a firearm. The jury was deadlocked on a separate attempted murder charge and a mistrial was declared as to that charge. Petitioner was sentenced to fifteen years to life for the murder, seven years for the attempted murder and consecutive terms of twenty-five years to life for the firearm enhancements. Petitioner raises five claims in this federal habeas petition; specifically: (1) the trial court failed to dismiss the entire jury venire following the prosecutor'sracially discriminatory use of peremptory challenges ("Claim I"); (2) the trial court failed to dismiss the entire jury venire following the prosecutor's use of peremptory challenges against women ("Claim II"); (3) the trial court erred in excluding two extra-judicial, exculpatory statements of Petitioner that were necessary to rebut the prosecutor's argument that Petitioner had not professed his innocence prior to his arrest ("Claim III"); (4) the trial court erred in conducting an intrusive and coercive inquiry during the jury deliberations which targeted the one holdout juror who was Asian ("Claim IV"); and (5) the trial court erred when it refused to entertain Petitioner's request to discharge retained counsel and appoint new counsel for the post-trial proceedings ("Claim V"). For the following reasons, the habeas petition should be denied.

II. FACTUAL BACKGROUND1
In June 2003, Lamson [Trong Pham] and Bruce [Huy Phan]2 were charged with the October 2002 murder ([Cal. Pen. Code] § 187) of Alan Khamphoumy, with personal discharge of a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), and attempted murder of T.T. and V.D. with the same firearm allegations. In August 2003, Sutter [Nguyen] was charged with the same offenses.
The trial court granted the prosecutor's motion to join the cases and denied Sutter's motion for severance. An amended consolidated information was filed, charging all defendants with one count of murder and two counts of attempted murder, and alleging firearm enhancements and infliction of great bodily injury under sections 1203.06, 12022.5, 12022.7, and 12022.53.
The prosecution's theory was that defendants were involved in a Vietnamese street gang (though the case was not charged under the street gang statutes) and went looking for a confrontation with rival Laotian gang members and shot at unarmed people. Lamson and Bruce claimed self-defense. Sutter did not testify but maintained there was no evidence he was there or had anything to do with the crimes.
The evidence at trial included the following:
On the night of October 26, 2002, a Laotian family held a birthday party for a 16-year-old girl in and around the garage of their Sacramento residence. Some of the attendees (including one of the people who was shot, T.T.) were involved in a Laotian street gang - LGC (Little Gangster Crips or Laotian Gangster Crips).
Also present were some Vietnamese who were involved in a Vietnamese street gang (JVP or Junior Viet(namese) Pride).
All defendants are Vietnamese. Prosecution evidence indicated that in 1998 the police confirmed (validated [FN 2]) Sutter as a JVP gang member, and Lamson (though not validated as a member) associated with the JVP gang. There was no evidence that Bruce was a gang member.
[FN 2] "Validation" means the police fill out a form concluding a person meets at least two of several criteria established by the police for determining gang membership.
There was conflicting evidence as to what happened. One partygoer, S.K. (also known as Viet), testified he recognized Lamson at the party, having met him when they were both at the Boys' Ranch, where Lamson claimed affiliation with JVP. S.K. admitted he was a member of LGC but said it was not an LGC party, and his friends did not have guns that night. Partygoers (some of whom testified under a grant of use immunity) testified the two groups faced each other across the driveway. The Vietnamese asked, "Where you all from?" (Which a gang expert explained was a challenge to fight). One of the Laotians said, "LG." The Vietnamese said, "LG What?" pulled out their guns and started shooting.
T.T., an LGC member (who testified he quit LGC before the party), heard gang taunts of, "where you from" and saw guns. Unarmed, he backed away and tried to escape but was shot in the stomach. V.D., a 17-year-old girl, was shot in the hip and leg. [FN 3] Alan Khamphoumy was shot and killed. [FN 3] She had participated in Internet chat with two of defendants' group but denied mentioning the party to them. One of them, John D., told the police he recognized the girl at the party as someone he knew "from being on-line."
Lamson and Bruce were stopped by police on the same street as the party as they tried to leave the scene in a Tahoe SUV. The police noticed Lamson was bleeding (having been shot, perhaps accidentally, by one of his companions). Two guns were found in the SUV, both of which were connected to casings found at the crime scene. Bruce's fingerprints were on a gun (a Kimber .45), which was matched to the bullet that killed Alan Khamphoumy, and gunshot residue was found on Bruce's palm.
Some but not all partygoers identified Lamson and/or Bruce inpolice line-ups.
As part of the investigation, police sought validated JVP members Sutter and Trung Nguyen, also known as Boy (a JVP leader or "shot caller"), but did not locate them.
Sutter was arrested months later, on June 24, 2003, when he was in a black Honda stopped by the police. After the driver emerged from the Honda, the front seat passenger - Boy - killed himself with a gunshot wound to the head. Sutter then emerged from the back seat, with a loaded gun in his waistband.
An earlier suicide by another person, Tan T., in March 2003, brought to light a .380 pistol that was matched to casings found at the crime scene and most likely fired a bullet that hit Lamson. Shell casings from four guns were found at the scene. The 27 shell casings found at the scene were of .45, .380, and nine-millimeter calibers. Ten were connected to the .45 Ruger and the .45 Kimber found in the vehicle of Lamson and Bruce and to the bullet found in the deceased Khamphoumy. Three .380 casings were from the gun later used by Tan T. to commit suicide. Fourteen casings and five slugs were traced to a nine-millimeter gun which was not recovered. Test firing of a gun found behind the fence at the scene of the party did not match any casings taken from the scene.
Lamson and Bruce testified at trial, and both testified that they and Sutter were at the party. Lamson and Bruce admitted they fired guns, but claimed they did so only in self-defense or defense of others.
Lamson denied JVP involvement but knew Boy was a JVP member. Lamson was told by Sutter that Sutter used to be JVP but left because he did not get along with the group. Lamson claimed he went to the party to meet girls and he was carrying a gun that night because he thought it would be "cool" to show to girls. He claimed he fired the gun in self-defense after others started shooting. Lamson said he saw Sutter at the party but did not remember seeing Sutter during the shooting. Lamson said he came out of the garage after dancing; someone shot at him; and he fired back. He got shot, and Bruce helped him to the SUV.
Bruce testified he was not a JVP member. He also claimed he carried a gun to impress girls. He said he fired only in defense of Lamson. Bruce said he came out of the garage, heard someone say, "Little Gangster Crip Nigga" and saw T.T. trying to shoot a gun but nothing came out. Bruce was unsure of the sequence of events but said Boy drew his gun and fired, and others drew guns, including Sutter and John D. Bruce said he drew his gun and fired after Viet shot Lamson. Bruce first testified Sutter also pulled a gun and shot, but the next day testified he did not know whether Sutter did or not, and did not know what Sutter did during theshooting, and was only assuming Sutter was present because he (Bruce) saw someone who resembled Sutter at the party. Bruce said he did not even know Sutter and saw him for the first time sitting in a car at the park that night. Bruce said he, not Sutter, helped the injured Lamson.
John D., age 19 at the time of trial, testified he had been given use immunity and was awaiting trial for an unrelated murder. John testified Boy was JVP, but John and Sutter were not. John testified Boy and Tan T. [FN 5] picked up John in Boy's black Honda on the night in question, and they went to a park where they met up with Lamson and Bruce and some girls, and then Sutter arrived at the park. Boy told the group that the ABZ [FN 6] gang was having a party. The males in the group went to the party. John testified that he, Sutter, Lamson, and Tan T. went with Boy in Boy's car. At the party, John's group walked into the garage where the party was being held. They all stood in the corner, except Lamson, who danced. They saw some Laotians across the garage, looking at them in an unfriendly way. John's group went outside to the driveway, except Lamson, who continued dancing. The Laotians came out and faced John's group across the driveway and asked what "set" John's group was from. One of John's group asked the same question of the Laotians, who said they were LGC. Bruce pulled out a gun. The Laotians said, "we're cool," as in "they didn't want no beef." [FN 7] John told the police he did
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