Petitioner David Phommachanh, a state prisoner proceeding pro se with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenges his conviction in San Diego County Superior Court Case No. SCD191585 for murder, attempted murder, assault with a semiautomatic firearm, and gang and gun enhancements. (Pet. at 1-2, ECF No. 1.)1 The Court has reviewed the Petition, the Answer and Memorandum of Points and Authorities in Support of the Answer, the Traverse, the lodgments, the record, and all the supporting documents submitted by both parties. For the reasonsdiscussed below, the Court recommends the Petition be DENIED.
This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); see also Parle v. Fraley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from these facts, are entitled to statutory presumption of correctness). The following facts are taken from the California Court of Appeal opinion:
In 2005, [Konrsavanh Donald] Sirypangno and Phommachanh were documented members of the Oriental Killer Boys (OKB) criminal street gang. Sirypangno's gang moniker was "Reckless"; Phommachanh's moniker was "Felon." Other OKB members included Devin Giraud ("Striker") and Steven Joyce ("Turtle").
On the evening of June 11, 2005, Phommachanh drove his out-of-town cousin, Danny Boualouang, and Judy Rattana to a friend's residence and later to a birthday party for a Cambodian girl. Rattana was Phommachanh's girlfriend and the mother of their daughter. [footnote 3 omitted]. Sirypangno, and Joyce and his girlfriend, Melissa Rasasack, drove to these locations in a separate vehicle. OKB member Giraud also was at the Cambodian girl's party. During that party, Rattana learned some of her girlfriends were going to a party in Mira Mesa and decided to accompany them. Rattana left the Cambodian girl's party with her girlfriends. The plan was for Phommachanh to first pick up their daughter at her grandparent's house, take the girl home, then pick up Rattana at the Mira Mesa party and bring her home.
Before Phommachanh went to the Mira Mesa party, he received a call on his cell phone. Boualouang heard Phommachanh tell someone to bring a "strap, which is street jargon for gun, because there might be "some problems" at the party.
At about 11 p.m., Phommachanh Boualouang and Giraud went to the Mira Mesa party, which was in the backyard of a house at the corner of Lott Point and Santa Arminta Streets. Sirypangno, Joyce and Rasasack went in a separate vehicle.
Access to the party was through a side gate to the backyard; admission cost $2.00. At first, Phommachanh and the others were not allowed to enter because there were too many people at the party. Phommachanh told the two young men who were manning the gate there would be trouble if he and his friends were not allowed inside. Rattana walked up to the young men at the gate and told them to let Phommachanh and the others in to avoid problems. Phommachanh, Boualouang, Giraud and Rasasack walked into the backyard without paying. Sirypangno and Joyce jumped over the backyard fence.
There were a number of altercations at the party that evening, including at least one before Phommachanh, Sirypangno and the others arrived. While invited guest Hasib Farhan was standing near a young woman, he accidentally blew cigarette smoke in her face and almost burned her hair. An argument ensued, and Julie Nguyen, who was with the young woman, threatened to have Farhan jumped by OKB members if he did not apologize. Nguyen, who is known to her friends as "Mai," is an affiliate of OKB. After Phommachanh and the others entered the backyard, they were greeted by Mai and the young woman.
At one point, some of the invited guests complained that they were uncomfortable because Phommachanh and his group were "mad-dogging" or staring at people at the party. [footnote 4 omitted.] Farhan, who had played football in high school, and some of his friends who also played football approached Phommachanh and Sirypangno, who were standing next to each other, and told them to calm down or they would have to leave. Sirypangno pulled up his shirt, removed a black semiautomatic gun from his waistband, racked a round and pointed the gun at Farhan. Although Farhan did not hear Sirypangno say "OKB" or "this is OKB" and did not see Phommachanh flash gang signs, others who were present testified they did. Once the gun was displayed, Farhan's friends pushed him back into the house. Sirypangno and Phommachanh jumped over the back fence and onto a sidewalk. In the process, they knocked out one of the wood planks of the fence.
One of the party hosts, Natasha Richardson, who had gone outside with Farhan, approached Mai, tapped her on the shoulder and asked Mai to have Sirypangno put the gun away. Mai told Richardson not to touch her, yelled "OKB" and punched Richardson in the face.
After Sirypangno and Phommachanh jumped the fence, Sirypangno stayed on the sidewalk behind the backyard of the party house, but Phommachanh did not. Sirypangno became angry when he overheard portions of a conversation between Tylor Thompson [the victim in the murder count] and Jeremy Waller, who were standing near the fence. Waller and Thompson were talking about a group of girls who had earlier been fighting and wondered where "the bitches" had gone. From the other side of the fence, Sirypangno said: "Who you guys calling a bitch?" According to Waller's testimony, he and Thompson replied they were not talking about Sirypangno, they did not know him and they did not call him a bitch. Sirypangno threw a piece of wood over the fence at Waller and Thompson. When Waller and Thompson looked over the fence, Sirypangno pulled up his shirt and displayed the gun in his waistband.
Kelly Anderson [the victim in the attempted murder count] who also was a friend of Thompson, gave a slightly different version of the over-the-fence exchange between Thompson and Sirypangno. Anderson testified that Sirypangno said: "What the fuck did you say?" Thompson replied: "I don't know what you're talking about, I don't even know you, you're tripping" and "I don't know who the fuck you are." Sirypangno said: "You fucking said something, what the fuck did you say, don't be a pussy." Thompson responded: "Fuck you, suck my dick." Anderson testified Sirypangno then said he would catch Thompson outside and threw a piece of wood at them. [FN 7.] After the exchange, Anderson, Thompson, his girlfriend Krystal Abiva, and Brandon Guaderrama, who
went to the party with Thompson, remained in the backyard for between 15 and 20 minutes before leaving to allow tempers to calm down.
[FN 7:] Elexander Noble, a long-time friend of Phommachanh, provided another version of the Sirypangno-Thompson exchange. Noble, who is not a gang member, testified that Thompson said something to the effect that "these guys are not real gangsters[;] they're just bitches." Upon hearing this, Sirypangno responded by saying: "I'm a real fucking gangster[;] you'll see when you get out."
Meanwhile, Phommachanh, Rattana and Boualouang decided to leave the party and go home. As the trio started walking to the car, Giraud called out Phommachanh's name and asked him to return. Phommachanh and Boualouang walked back to see what Giraud wanted while Rattana continued walking to the car. A visibly upset Sirypangno then approached Phommachanh and told him about his exchange with Thompson. According to Boualouang, Phommachanh told Sirypangno not to worry about it and tried to calm him down. While Sirypangno and Phommachanh were talking, Rattana drove up to the house. As Phommachanh stepped into the passenger seat, Sirypangno handed him the gun. When Rattana asked Phommachanh about the gun, he replied he was just holding it. Phommachanh then put the gun in the glove compartment. Rattana drove away and headed home.
Within five minutes, Phommachanh received a cell phone call to come back and pick up Sirypangno. When they returned, Phommachanh put a bandanna over his face, removed the gun from the glove compartment and stepped out of the car. Phommachanh waved the gun and shouted "who wants it"; he then joined Sirypangno, Joyce and Giraud who were lined up in front of the house waiting for Thompson to emerge from the backyard. When Thompson came out, Sirypangno approached him, said "you the fool that fucking told me to suck your dick," and punched or tried to punch him in the face. Guaderrama then tackled Sirypangno and Joyce joined the fight as well. Anderson tried to get Thompson to stop fighting and pull him away.
Phommachanh pointed the gun at Thompson, who put his hands up and said "no." When the gun did not fire, Phommachanh cleared an unfired round from the chamber by racking back the slide of the gun. He then fired five shots, striking both Thompson and Anderson. Thompson and Anderson struggled to get up and run away, but collapsed.
Phommachanh, Sirypangno, Joyce and Boualouang got into the car and Rattana drove away. The group discovered Joyce had been shot in the foot. Phommachanh gave the gun to Sirypangno, who told Rattana to drive to Giraud's house because they needed to hide "the strap." Rattana dropped off Phommachanh and Sirypangno at Giraud's house, where the gun was hidden in a rice bin. [FN 8.] Rattana then drove home with Joyce and Boualouang. Phommachanh phoned Rattana and told her to get rid of Boualouang's clothes, which had blood on it from Joyce's wound. When Phommachanh returned home, he...
