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Case 1:11-cv-00245-LJO-MJS Document 18 Filed 07/30/13 Page 1 of 28













IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JOHNNY LEE VANG,

Case No. 1:11-cv-00245 LJO MJS (HC)

Petitioner,

FINDINGS AND RECOMMENDATION
REGARDING PETITION FOR WRIT OF
HABEAS CORPUS

v.



MICHAEL McDONALD,

Respondent.






Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254. Respondent is represented by David Andrew

Eldridge of the office of the California Attorney General.

I.



PROCEDURAL BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections

pursuant to a judgment of the Superior Court of California, County of Fresno, following

his conviction by jury trial on December 20, 2007, of two counts of first degree murder.

With regard to the charges, Petitioner was found to have personally and intentionally

discharged a firearm to cause death, that the murder was committed in the commission

of a robbery, and that multiple murders occurred. On February 26, 2008, Petitioner was

sentenced to life without the possibility of parole plus forty-five (45) years. (Clerk's Tr. at






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Case 1:11-cv-00245-LJO-MJS Document 18 Filed 07/30/13 Page 2 of 28




685-86.)



Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate

District, which was denied on January 16, 2009. (Lodged Docs. 24-26; Answer, Ex. A.)

Petitioner filed a petition for review with the California Supreme Court which was

summarily denied on January 21, 2010. (Lodged Doc. 28.)



Petitioner filed his federal habeas petition on February 14, 2011. (Pet., ECF No.

1.) The petition raised three grounds for relief: 1) Petitioner's Sixth Amendment right to

cross-examine witness was violated by introducing recorded testimony of other co-

defendants; 2) Petitioner's Fifth and Fourteenth Amendment rights were violated based

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on insufficient evidence; and 3) cumulative error relating to accomplice testimony.

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Respondent filed an answer to the petition on September 16, 2011. (Answer, ECF

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No. 16.) Petitioner did not file a traverse.

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II.

STATEMENT OF THE FACTS1


In 2006, Lee Cha and his wife lived in Merced where, until being
laid off, Cha worked as an automobile mechanic in his brother Tong Cha's
repair shop. In May of 2006, Cha asked Doua Xiong, a relative, if he knew
anyone who might know of a mountain location where Cha could plant
marijuana. A few weeks later, Cha asked Xiong if he knew anyone who
sold marijuana and cocaine. During the conversation, Cha stated that he
wanted to purchase methamphetamine to sell in Alaska.


In June of 2006, Xiong went to his cousin Kou Heng Lee's house in
Fresno. Lee was addicted to crystal methamphetamine and smoked about
$ 50 to $ 75 worth of methamphetamine daily. Lee supported his addiction
by selling stolen goods and crystal methamphetamine.


Xiong told Lee that Cha was interested in purchasing drugs and
asked Lee if he knew where to buy them. Lee stated that he did. Xiong
gave Lee and Cha each others' phone numbers.


The next day, Cha telephoned Lee and said he wanted to buy a
large amount of crystal methamphetamine but first wanted samples of the
drug, for which he agreed to pay $ 200. Lee told Cha that Cha would have
to buy the drugs from a direct source.


A week later, Lee called Cha and told him he had obtained samples
of two different types of crystal methamphetamine. Lee and Debra Mercy


1 The Fifth District Court of Appeal’s summary of the facts in its October 20, 2009 opinion is presumed
correct. 28 U.S.C. § 2254(e)(1).

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Case 1:11-cv-00245-LJO-MJS Document 18 Filed 07/30/13 Page 3 of 28


Bacud, a friend and fellow drug user, drove Bacud's car to meet Cha in a
FoodMaxx parking lot in Fresno. Lee gave "half an eight ball" of
methamphetamine to Cha, and Cha gave Lee $ 100.


Two days later, Cha telephoned Lee and said he wanted to
purchase two pounds of crystal methamphetamine. Lee told Cha the
drugs would cost $ 10,000 per pound, but Cha said he did not want to pay
that much.


Lee was not able to obtain the methamphetamine and decided to
sell Cha "bad dope," containing no methamphetamine, instead. Bacud told
Lee that her boyfriend, Damian Anthony Vasquez, could obtain the "bad
dope." Lee then met with Vasquez, who stated he had a friend who could
get Lee two pounds of "bad dope" and Lee would pay for the drugs later.
The next day, Lee telephoned Cha and told him the drugs would cost $
8,000 per pound. Cha agreed to that price and said he would let Lee know
when he was ready to complete the purchase.


Lee then called Xiong and asked if Cha was an undercover police
officer, but Xiong said that Cha was his cousin and that he had been a
mechanic.


On July 24, 2006, Cha telephoned Lee and told him he was ready
to purchase the drugs. That night, Lee met with Vasquez and Bacud at a
motel to discuss finding someone who would act as a "connection,"
someone who would take the blame for the "bad dope." Lee telephoned
his friend, Her, who came to the motel with appellant and Mario Adrian
Calderon, and met with Lee, Vasquez, and Bacud. Lee told Her he would
pay him $ 1,000 for acting as a fake connection and for selling the "bad
dope," and Lee also agreed to give Vasquez, Bacud, and appellant each $
1,000.

On July 26, 2006, Cha telephoned Lee and said he would be
coming to Fresno to buy the drugs. Lee telephoned Vasquez, who said he
would pick up the drugs. Cha later telephoned Lee to say he was almost in
Fresno. Bacud picked up Lee and they met Vasquez at his mother's
house, but Vasquez did not have the fake drugs.


When Cha telephoned Lee and said he was in Fresno, Lee told
Cha he first wanted to see the money. Cha agreed to show him the money
and stated that his brother would be with him. Lee, Bacud and Vasquez
drove to meet Cha. They drove Vasquez's mother's Lexus "[t]o make it
look good," and picked up appellant for "protection."


Lee and appellant met Cha and his brother on a side street near
FoodMaxx. Cha got into the Lexus and showed Lee the money, which was
in a brown envelope. Lee phoned Vasquez and told him to pick up the
drugs. Cha went back to his car.


Lee and appellant drove to Lee's house, where they picked up two
loaded guns, a nine-millimeter and a .32-caliber. Lee gave appellant the
.32-caliber gun. Lee and appellant then met Vasquez and Bacud in a
grocery store parking lot. A couple of minutes later, Her and Calderon
arrived in Her's car.


Lee got the fake drugs from Vasquez, gave them to Her, and told


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Case 1:11-cv-00245-LJO-MJS Document 18 Filed 07/30/13 Page 4 of 28


Her to find a spot to meet near Kearney Park and then wait for him and
Cha. Her and Calderon left in Her's car. Vasquez and Bacud also left.


Lee returned to the Lexus and telephoned Cha, who stated he was
at an Asian market in Fresno. Lee and appellant drove to the store parking
lot where Lee got out of the car and spoke to Cha. Appellant went into the
market to get something to eat. Cha pointed to Torn Saetern, who was in
another vehicle, and stated that he was the one who was going to buy the
drugs. Cha told Lee he was going to sell the drugs to Saetern for a lot
more and asked that Lee not say anything about the price. Cha would
then give Lee a "back cut" of $ 1,000 once the deal was done. Lee
returned to the Lexus and telephoned Her, who stated that he was still
looking for a place and would call when he found a good spot.


Cha's brother exited the market and walked to Cha's car, where
Cha told his brother he was going with Lee. Cha's brother did not want
Cha to go with Lee because they did not know him, but Cha said that Lee
was related to Xiong.


Lee and appellant drove towards Kearney Park and discussed the
presence of the third man (Saetern) who was with Cha. They thought it
was suspicious that Cha had not previously mentioned him. Cha and his
brother followed the Lexus in Cha's car. Saetern followed in his vehicle.
Cha telephoned Lee and asked if it would be better if they all traveled in
one car. Lee agreed and directed the group to drive to FoodMaxx, where
they would get into one car.


En route to FoodMaxx, Lee telephoned Her and told him Cha had
two cars and three people. Her informed Lee that he was armed and that
the fake drugs looked like "[a] big chunk of chalk wrapped in a plastic
bag." Since Her did not know if the fake drugs would pass for real drugs,
Lee decided they would just rob Cha and Saetern instead. Lee informed
appellant of this decision, and appellant agreed. Lee telephoned Her and
informed him of their change in plans.


Once at the FoodMaxx parking lot, Cha, his brother, and Saetern all
got into the Lexus. Cha's brother then decided to return to Merced
because he had to go back to work. He was suspicious of Lee and
appellant, and the Lexus did not have a front license plate, which he also
thought was suspicious. As Cha's brother stepped out of the Lexus, he
noticed a gun between Lee's legs. Cha's brother drove Saetern's vehicle
back to Merced while Lee, appellant, Cha, and Saetern drove away in the
Lexus. Cha left his vehicle in the FoodMaxx parking lot. Cha's brother
wrote down the license plate number of the Lexus as Lee, appellant, Cha,
and Saetern drove off.


Lee drove the four toward Kearney Park. When Lee spotted Her's
car on a dirt road on the north side of Kearney Boulevard, Lee turned onto
the dirt road and parked near Her. Calderon was in the passenger seat of
Her's car. Lee told Cha and Saetern that Her was the "connection."


The four men got out of the Lexus, and Her got out of his vehicle.
Calderon stayed in the car. As Lee walked toward Her's car, Cha told Lee
that his brother had the money but he need not worry as he would give
Lee the money once they got back.




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Case 1:11-cv-00245-LJO-MJS Document 18 Filed 07/30/13 Page 5 of 28


Lee and Cha continued toward Her's car to look at the drugs.
Saetern looked into Her's car at the drugs, walked to the middle of the
road, and began to make a phone call. Appellant stood next to Saetern in
the middle of the road; Cha was next to Saetern, who stood in front of Lee,
with his back to Lee. Lee pulled out a gun and fired three shots from his
nine-millimeter gun into Cha's back. Her then fired his gun at Cha from
behind his car. At the same time, appellant shot Saetern in the head.


Both Cha and Saetern fell to the ground. Her then drove away. Lee
took Cha's wallet from his pocket and Cha and Saetern's cell phones. Lee
and appellant then left the scene and drove to Vasquez's house, where
they told Vasquez and Bacud that they had shot Cha and Saetern and that
there was no money.


Lee later told Vasquez that he was going to rob Cha and Saetern,
but that he shot them instead. Lee checked the number of bullets in his
nine-millimeter gun and found that three rounds were missing.


Lee telephoned Her and told him to come to Vasquez's house. Her
and Calderon arrived and brought the "bad dope" with them. The group
discussed the murders and whether anybody found the money. Lee told
the group not to say anything and to "[j]ust forget about it." When the
group disbanded, Lee gave Cha's wallet to Bacud. He left the "bad dope"
at Vasquez's house. Lee put the stolen cell phones in a desk on his front
porch.

About two days after the murders, Lee told Her to drop his gun off
so that Lee could sell it for him. Lee later sold both guns used during the
murders for another nine-millimeter gun and $ 200. He put the new gun
under a drawer at his house.


In the meantime, at approximately 6:00 a.m. on July 27, 2006, an
almond farmer discovered the bodies of Cha and Saetern near the
intersection of Kearney Boulevard and Hayes Avenue. Police
subsequently discovered $ 3,800 in cash in Cha's sock and $ 16,000 in
cash in a brown envelope in the small of his back under his shirt. They
found $ 40 in Saetern's back pants pocket. Six expended .32 automatic
cartridge casings and three nine-millimeter Luger cartridge casings were
found near the bodies.


Also at about 6:00 that morning, Cha's wife telephoned Xiong and
told him that Cha and another man had left the day before about 4:00 p.m.
and had not returned. Xiong gave Cha's wife Lee's telephone number but,
when Cha's wife called, no one answered.


Xiong also telephoned Lee but got no answer. Xiong and his father
went to Lee's house several times, but Lee was not there. After the last
try, as Xiong and his father drove away, Lee telephoned Xiong and told
him to stop looking for him and that "the Mexicans" would not let him
move. Xiong asked where Cha and Saetern were, and Lee said he did not
know.


During a second conversation with Xiong, Lee asked that Xiong
telephone him and use a fake name so that "the Mexicans" would release
him. Xiong telephoned Lee, but Lee did not answer. At 2:50 p.m., Lee sent
Xiong a text message asking where he was and stated he was stuck. The


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Case 1:11-cv-00245-LJO-MJS Document 18 Filed 07/30/13 Page 6 of 28


message also said, "UMUST not say nothing. N don't go 2 my [13] house
at all. PLEASE DON'T."


Cha's brother told police that he had been with Cha and Saetern
the day before in Fresno and that Cha and Saetern went with two people
in a white Lexus. He gave the officers the license number of the Lexus.
Cha's brother told officers he had received a call from Cha's cellular phone
shortly after he saw them drive away but, when he answered, no one
responded and he heard voices speaking in Hmong and a loud "bang,
bang."

Police contacted Cha's wife, who stated that Cha drove to Fresno
the previous day at 4:00 p.m. and that Xiong told her Cha had gone to buy
drugs from Lee.


The following day, July 28, 2006, Xiong told officers about his
conversations with Lee and Cha; that Cha had asked if he knew anyone
who sold methamphetamine; that Xiong had exchanged the names and
phone numbers between Cha and Lee; and that Xiong had gone to Lee's
house several times the previous day because Cha's wife had told him
Cha was missing. Xiong showed police the text message he had received
from Lee.


Vasquez's father was identified as the registered owner of the
Lexus. Vasquez's father told officers that his wife, who lived at a different
address, drove the Lexus and that she had been out of town between July
25 and July 27.


Police subsequently interviewed Vasquez on August 1, 2006.
Vasquez stated that he had driven the Lexus on July 25 to meet Lee at a
friend's house. The following day, July 26, Lee borrowed the Lexus for
between one and a half to three hours. Vasquez stated that he was
present when Lee discussed a drug deal at his house.


On August 2, 2006, police executed a search warrant for Lee's
residence. Police found a firearm on the floor under the dresser in Lee's
bedroom closet, a box of live nine-millimeter ammunition, a piece of paper
containing Cha's name and cell phone number, three cell phones in a
drawer of a dresser or desk on the front porch, and a plastic grocery bag
containing a white, rocky, powdery substance, which was later discovered
to contain no controlled substance and weighed a little less than a pound.


Police interviewed Lee shortly while the search warrant was being
executed. After telling officers several versions of the events, he stated he
wanted "to make a deal" and told officers that he, Calderon, Her, and
appellant were at the murder scene. Lee told officers that he called Her
because he needed somebody to pose as the drug dealer. Lee stated that
he met with Vasquez, Bacud, Her, Calderon, and appellant at a motel to
discuss the drug deal. The group decided to carry firearms for protection
and discussed having to shoot someone "for the money." Lee told officers
he shot Cha three times with a nine-millimeter, appellant fired a .32-
caliber, and Her fired a nine-millimeter. Lee was arrested for the murders
at the end of the interview.


On August 4, 2006, officers arrested appellant, Her, and Calderon
at Her's house. Her was interviewed that same day. After first claiming that


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Case 1:11-cv-00245-LJO-MJS Document 18 Filed 07/30/13 Page 7 of 28


he was fishing on the day of the murders, he then admitted that he met
with "Jesse" and Lee on July 25 and agreed to participate in a drug deal.
Later that night, "Jesse" gave him a package containing two pounds of
methamphetamine. Her said he transported the drugs to Kearney Park on
July 26, but that the victims were dead when he arrived at the scene. He
then changed his story and stated that he was on his way to Kearney Park
when he saw Lee in a nice, gray-colored, newer vehicle. Lee signaled Her
to pull over. A red Honda Civic was also at the location, but drove away.
The gray vehicle then dropped off two Asian males, who were shot while
Her sat in his car.


Her then stated the red car was not at the scene; he was in his car
with the drugs between the seats; the gray vehicle drove in behind him;
two Asian males got out of the vehicle and walked over to his vehicle to
look at the drugs. Her claimed he heard the Asian men talking in Hmong
about robbing them for the drugs. Her telephoned Lee, who was still in the
gray car, and warned him. Lee got out of the car. As Her started to get out
of his car, he reached for a .22-caliber pistol under his shirt. Her then
heard 10 to 12 shots being fired at the men. Her saw one of the men fall
and heard the victim's weapon fall to the ground. He picked up the victim's
gun, a black semiautomatic nine-millimeter handgun, and shot the victim
three or four times in the torso. He thought the victim was already dead
when he did so. Her denied intending to rob or kill anyone and then
explained that he was armed because it was dangerous to do a drug deal.


Officers transported Her to the murder scene, where he described
the events leading up to the murders. Her directed the police to a location
where he claimed he threw the gun into the canal, but a subsequent dive
team was unable to find the gun. Calderon confirmed the approximate
location where Her threw the gun into the canal.


Appellant also was interviewed by officers on August 4, 2006. He
denied any knowledge of the murders. When asked what had happened,
appellant stated that the police already knew "the story" because
"somebody got a big mouth."


Calderon was reinterviewed on August 9, 2004. He initially denied
involvement in the murders but admitted knowing there was going to be a
drug deal on Kearney Boulevard involving "fake dope" in order to "rip-off"
the victims for the money. Calderon stated he was a passenger in a black
Honda Civic during the murders and that the drugs were between the
seats in the car. Calderon said, "'I saw two dudes get shot over some
dope … over what was supposed to be a deal to rob two guys … using
fake dope.'" He denied getting out of the car during the killings.


That same day, officers arrested Bacud. Cha's vehicle insurance
card was in Bacud's purse, and Lee's telephone number and items
containing Cha's name were inside her computer bag. Appellant's
fingerprints were found on several of the articles.


Officers interviewed Bacud, who first denied any knowledge of the
murders. She then stated that she overheard a conversation the night
before the murders regarding a drug deal of two and a half pounds of
methamphetamine, but she denied involvement. Bacud stated that, after
the murders, Lee told her he had been involved in "something real bad"
and he had shot someone. He later gave her some credit cards and a


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driver's license belonging to Cha.


An autopsy conducted on Cha concluded that he died of multiple
gunshot wounds. Saetern died of a gunshot wound to the head. The
gunshot wounds to both Cha and Saetern were caused by large caliber
bullets.

Testing later revealed that five of the six .32 automatic cartridge
casings found at the scene were fired from the same firearm. There was
insufficient information to determine whether the sixth .32 automatic
cartridge casing was fired from that same firearm. The three nine-
millimeter Luger cartridge casings found at the scene were fired from the
same nine-millimeter firearm, but were not fired from the Luger nine-
millimeter firearm seized from Lee's home. It was also determined that
three of four bullets found at the scene were not fired from the weapon
seized at Lee's house, and testing on the fourth bullet fragment was
inconclusive.


At

trial, Lee claimed he was under
methamphetamine when he committed the murders.

the

influence of


Cha's brother testified that, on the evening of July 26, 2006, after
Cha, Saetern, and two others left the FoodMaxx parking lot in the Lexus,
he received a telephone call from Saetern, but no one responded when he
answered the phone. Instead, Cha's brother heard people talking in
Spanish, laughing, a car door open and shut, and two gunshots. The call
ended after nine minutes. Later that night, Cha's brother drove back to the
FoodMaxx parking lot and found Cha's car still there.


Cha's brother testified that he had not given certain information to

the police because he was fearful of the codefendants' relatives.



People v. Soria, 2009 Cal. App. Unpub. LEXIS 377, 2-3 (Cal. App., Jan. 16, 2009).


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II.

DISCUSSION

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A.

Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in

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custody pursuant to the judgment of a state court if the custody is in violation of the

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Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. §

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2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 fn.7 (2000). Petitioner asserts that he

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suffered violations of his rights as guaranteed by the U.S. Constitution. In addition, the

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conviction challenged arises out of the Fresno County Superior Court, which is located

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within the jurisdiction of this court. 28 U.S.C. § 2241(d); 2254(a). Accordingly, the Court

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has jurisdiction over the action.

B.

Legal Standard of Review


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On April 24, 1996, Congress enacted the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus

filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood,

114 F.3d 1484, 1499 (9th Cir. 1997). The instant petition was filed after the enactment of

the AEDPA; thus, it is governed by its provisions.



Under AEDPA, an application for a writ of habeas corpus by a person in custody

under a judgment of a state court may be granted only for violations of the Constitution

or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. at 375 n.

7 (2000). Federal habeas corpus relief is available for any claim decided on the merits in

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state court proceedings if the state court's adjudication of the claim:

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in a decision

that was contrary

to, or


(1) resulted
unreasonable application of, clearly established
determined by the Supreme Court of the United States; or

(2) resulted
that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.

involved an
law, as

in a decision

federal

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28 U.S.C. § 2254(d).

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1.

Contrary to or an Unreasonable Application of Federal Law

A state court decision is "contrary to" federal law if it "applies a rule that

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contradicts governing law set forth in [Supreme Court] cases" or "confronts a set of facts

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that are materially indistinguishable from" a Supreme Court case, yet reaches a different

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result." Brown v. Payton, 544 U.S. 133, 141 (2005) citing Williams, 529 U.S. at 405-06.

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"AEDPA does not require state and federal courts to wait for some nearly identical

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factual pattern before a legal rule must be applied. . . . The statue recognizes . . . that

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even a general standard may be applied in an unreasonable manner" Panetti v.

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Quarterman, 551 U.S. 930, 953 (2007) (citations and quotation marks omitted). The

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"clearly established Federal law" requirement "does not demand more than a ‘principle'

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or ‘general standard.'" Musladin v. Lamarque, 555 F.3d 830, 839 (2009). For a state

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decision to be an unreasonable application of clearly established federal law under §

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2254(d)(1), the Supreme Court's prior decisions must provide a governing legal principle






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(or principles) to the issue before the state court. Lockyer v. Andrade, 538 U.S. 63, 70-

71 (2003). A state court decision will involve an "unreasonable application of" federal

law only if it is "objectively unreasonable." Id. at 75-76, quoting Williams, 529 U.S. at

409-10; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). In Harrington v. Richter, the

Court further stresses that "an unreasonable application of federal law is different from

an incorrect application of federal law." 131 S. Ct. 770, 785 (2011), (citing Williams, 529

U.S. at 410) (emphasis in original). "A state court's determination that a claim lacks

merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the

correctness of the state court's decision." Id. at 786 (citing Yarborough v. Alvarado, 541

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U.S. 653, 664 (2004)). Further, "[t]he more general the rule, the more leeway courts

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have in reading outcomes in case-by-case determinations." Id.; Renico v. Lett, 130 S.

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Ct. 1855, 1864 (2010). "It is not an unreasonable application of clearly established

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Federal law for a state court to decline to apply a specific legal rule that has not been

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squarely established by this Court." Knowles v. Mirzayance, 129 S. Ct. 1411, 1419

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(2009), quoted by Richter, 131 S. Ct. at 786.

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2.

Review of State Decisions

"Where there has been one reasoned state judgment rejecting a federal claim,

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later unexplained orders upholding that judgment or rejecting the claim rest on the same

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grounds." See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). This is referred to as the

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"look through" presumption. Id. at 804; Plascencia v. Alameida, 467 F.3d 1190, 1198

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(9th Cir. 2006). Determining whether a state court's decision resulted from an

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unreasonable legal or factual conclusion, "does not require that there be an opinion from

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the state court explaining the state court's reasoning." Richter, 131 S. Ct. at 784-85.

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"Where a state court's decision is unaccompanied by an explanation, the habeas

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petitioner's burden still must be met by showing there was no reasonable basis for the

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state court to deny relief." Id. ("This Court now holds and reconfirms that § 2254(d) does

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not require a state court to give reasons before its decision can be deemed to have been

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‘adjudicated on the merits.'").







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Richter instructs that whether the state court decision is reasoned and explained,

or merely a summary denial, the approach to evaluating unreasonableness under §

2254(d) is the same: "Under § 2254(d), a habeas court must determine what arguments

or theories supported or, as here, could have supported, the state court's decision; 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 this Court." Id. at 786.

Thus, "even a strong case for relief does not mean the state court's contrary conclusion

was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. at 75). AEDPA "preserves

authority to issue the writ in cases where there is no possibility fairminded jurists could

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disagree that the state court's decision conflicts with this Court's precedents." Id. To put

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it yet another way:

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As a condition for obtaining habeas corpus relief from a federal
court, a state prisoner must show that the state court's ruling on the claim
being presented in federal court was so lacking in justification that there
was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.

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Id. at 786-87. The Court then explains the rationale for this rule, i.e., "that state courts

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are the principal forum for asserting constitutional challenges to state convictions." Id. at

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787. It follows from this consideration that § 2254(d) "complements the exhaustion

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requirement and the doctrine of procedural bar to ensure that state proceedings are the

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central process, not just a preliminary step for later federal habeas proceedings." Id.

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(citing Wainwright v. Sykes, 433 U.S. 72, 90 (1977).

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3.

Prejudicial Impact of Constitutional Error

The prejudicial impact of any constitutional error is assessed by asking whether

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the error had "a substantial and injurious effect or influence in determining the jury's

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verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551

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U.S. 112, 121-22 (2007) (holding that the Brecht standard applies whether or not the

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state court recognized the error and reviewed it for harmlessness). Some constitutional

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errors, however, do not require that the petitioner demonstrate prejudice. See Arizona v.

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Fulminante, 499 U.S. 279, 310 (1991); United States v. Cronic, 466 U.S. 648, 659







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(1984). Furthermore, where a habeas petition governed by AEDPA alleges ineffective

assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), the

Strickland prejudice standard is applied and courts do not engage in a separate analysis

applying the Brecht standard. Avila v. Galaza, 297 F.3d 911, 918, n. 7 (2002). Musalin

v. Lamarque, 555 F.3d at 834.

III.

REVIEW OF PETITION





A.

Claim One: Violation of Confrontation Clause

Petitioner contends that he was denied his Sixth Amendment right to confront and

cross-examine witnesses as the trial court admitted testimony in the form of taped

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conversations with police officers. (Pet. at 4.)

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2.

State Court Decision

Petitioner presented this claim by way of direct appeal to the California Court of

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Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the

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appellate court and summarily denied in a subsequent petition for review by the

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California Supreme Court. (See Answer, Ex. A, Lodged Doc. 28.) Because the California

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Supreme Court’s opinion is summary in nature, this Court “looks through” that decision

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and presumes it adopted the reasoning of the California Court of Appeal, the last state

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court to have issued a reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 804-05

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& n.3 (1991) (establishing, on habeas review, “look through” presumption that higher

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court agrees with lower court’s reasoning where former affirms latter without discussion);

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see also LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000) (holding federal

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courts look to last reasoned state court opinion in determining whether state court’s

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rejection of petitioner’s claims was contrary to or an unreasonable application of federal

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law under 28 U.S.C. § 2254(d)(1)).

In denying Petitioner’s claim, the California Court of Appeal explained:

1. Admission of Hearsay Statements of
Codefendants and Right to Confrontation and Cross-examination


the Nontestifying

By way of pretrial in limine motions, defense counsel for appellant
for
the

the codefendants made Aranda/Bruton objections

to

and



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prosecutor's predicted use of the hearsay statements given by each.
Pointing out the difficulties in redacting lengthy statements by appellant,
Vasquez, Calderon, Bacud and Her in order to comply with Aranda/Bruton
concerns (see post), the prosecutor proposed to control the flow of the
evidence by having the officers who took the statements testify to
admissible portions of the statements rather than introducing redacted
transcripts or tape recordings of the statements themselves. Counsel for
appellant, as well as counsel for the codefendants, argued against this
procedure because it would result in unpredictability and unintended
Aranda/Bruton error. The trial court's solution was to require the
prosecution to make offers of proof. When the prosecutor noted that
defense counsel would have the actual statements to use in cross-
examining the officers, counsel for appellant argued that, because of
Aranda/Bruton concerns,
to cross-
examination would [nonetheless] be restricted and constricted by that
procedure." The trial court responded, however, that such restriction would
be present, too, if redacted statements were used rather than tailored
testimony from the officers.

"our Sixth Amendment

right


Thereafter, officers did testify to hearsay statements made by
appellant and each of the codefendants. The trial court gave a limiting
instruction informing the jury that the nontestifying parties' statements
could be used only as to the declarants. During deliberations, the jury
requested it be provided with the actual statements. The trial court denied
the request because the actual statements had not been placed in
evidence.


Appellant now claims this resulted in error in the following ways.
First, the testimony of the officers was insufficiently tailored (redacted, if
you will) to avoid Aranda/Bruton error. Second, the trial court abused its
discretion and denied appellant's "constitutional right to due process,
confrontation and adequate cross-examination" by "choosing one
constitutional right [Aranda/Bruton] over another [cross-examination]." We
disagree.



A. No Aranda/Bruton Error Occurred


The Sixth Amendment to the United States Constitution, made
applicable to the states through the Fourteenth Amendment, provides that
in criminal prosecutions, the defendant has the right to be confronted with
the witnesses against him. (U.S. Const., 6th Amend.) The Sixth
Amendment right to confrontation includes the right of cross-examination.
(Pointer v. Texas (1965) 380 U.S. 400, 404; People v. Fletcher (1996) 13
Cal.4th 451, 455.)


"A recurring problem in the application of the right of confrontation
concerns an out-of-court confession of one defendant that incriminates not
only that defendant but another defendant jointly charged. Generally, the
confession will be admissible in evidence against the defendant who made
it (the declarant). (See Evid. Code, § 1220 [hearsay exception for party
admission].) But, unless the declarant submits to cross-examination by the
other defendant (the nondeclarant), admission of the confession against
the nondeclarant is generally barred both by the hearsay rule (Evid. Code,
§ 1200) and by the confrontation clause (U.S. Const., 6th Amend.)."
(People v. Fletcher, supra, 13 Cal.4th at p. 455, fn. omitted.)





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The Aranda/Bruton rule addresses the confrontation clause issues
raised by the introduction of a defendant's out-of-court statement in a joint
trial with one or more codefendants. In Aranda, the California Supreme
Court articulated a rule of criminal procedure prohibiting the introduction of
a nontestifying codefendant's extrajudicial statement that directly or
inferentially implicates a jointly tried defendant, unless the statement is
redacted to eliminate the direct or inferential reference to the defendant.
(Aranda, supra, 63 Cal.2d at pp. 528-531.) Aranda held the admission of a
nontestifying codefendant's out-of-court confession, which inculpates the
defendant, is not rendered harmless by a jury instruction that the evidence
should not be considered against that defendant. (Id. at p. 526.) Instead, if
the defendants are tried together, either the statement must be redacted
to remove direct and indirect identification of the defendant, or it must be
excluded altogether. (Id. at pp. 530-531.)


In Bruton, the United States Supreme Court held that a defendant's
constitutional right to confrontation of the witnesses against him is violated
by admitting the confession of a nontestifying codefendant that names and
incriminates the defendant. This is so even though the jury is instructed to
disregard the confession in determining the nondeclarant defendant's guilt
or innocence. (Bruton, supra, 391 U.S. at pp. 135-137.)


Bruton's scope was limited in Richardson v. Marsh (1987) 481 U.S.
200, where the court held that, when a nontestifying codefendant's
confession is redacted so that it does not facially incriminate the
defendant, the admission of the statement with a proper limiting instruction
will not violate the confrontation clause. (Id. at pp. 207-208, 211.)
Richardson distinguished the confession in that case from the confession
in Bruton:



incriminating.'

"In Bruton, the codefendant's confession 'expressly implicat[ed]' the
defendant as his accomplice. [Citation.] Thus, at the time that confession
was introduced there was not the slightest doubt that it would prove
'powerfully
the
confession was not incriminating on its face, and became so only when
linked with evidence introduced later at trial (the defendant's own
testimony)." (Richardson v. Marsh, supra, 481 U.S. at p. 208, fn. omitted.)
Under such circumstances, the court could properly presume that jurors
would follow a limiting instruction not to consider the confession against
the defendant, even if the confession incriminated the defendant when
considered in connection with other evidence. (Id. at pp. 201-202, 208.)

[Citation.] By contrast,

in

this case

1. Vasquez's statements


Appellant challenges various statements made by Vasquez during
his interview with Deputy Chapman, and related to the jury by Chapman,
on the basis they were insufficiently redacted and thus violated the
Aranda/Bruton rule: (1) on July 26, Vasquez left the house for awhile,
returned home, and "had company"; (2) the "company" left and then
returned later that night; (3) Lee borrowed Vasquez's family's Lexus for
one and a half to three hours on July 26; (4) there was a discussion about
a drug deal, and Lee was "one of the individuals" present for that
discussion.


No Aranda/Bruton error occurred here. While Aranda/Bruton forbids
the admission of statements made by a nontestifying codefendant that



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incriminate the defendant (Bruton, supra, 391 U.S. at pp. 126, 135-136;
Aranda, supra, 63 Cal.2d at pp. 529-530), Vazquez's reference to
"company" and to a discussion of a drug deal did not implicate appellant in
the criminal activity. It is only through consideration of other evidence that
the jury could infer Vasquez's "company" included appellant. (See
Richardson v. Marsh, supra, 481 U.S. at pp. 208, 211; Gray v. Maryland
(1998) 523 U.S. 185, 192-196.) Under Richardson, any potential
infringement of appellant's rights was prevented because the trial court
gave a limiting instruction.

2. Calderon's statements


Appellant challenges statements by Calderon, made during his
interview with Deputy Chapman and related to the jury by Chapman: (1)
Calderon stated he had been present during a discussion about a drug
deal but denied any involvement, (2) Calderon admitted he was present at
the scene of the murders after arriving in a black Honda Civic. Again, we
find no Aranda/Bruton error as Calderon's statement did not incriminate
appellant in the criminal activity. (Cf. People v. Olguin (1994) 31
Cal.App.4th 1355, 1374-1375.)


We also reject appellant's claim that Vasquez's counsel's reference
to Calderon's interview as being 89 pages long was Aranda/Bruton error.
The reference was not a statement by a nontestifying codefendant and did
not incriminate appellant.

3. Bacud's statement


We similarly reject appellant's claim of Aranda/Bruton error relating
to the challenged statement by Bacud during her interview by Deputy
Toscano, and related to the jury by Toscano: The night before the
murders, she overheard a conversation regarding a drug deal that was
going to occur, but she had no involvement or knowledge of the actual
deal. Bacud's statement did not itself implicate appellant in any criminal
activity. (Bruton, supra, 391 U.S. at pp. 126, 135-136; Aranda, supra, 63
Cal.2d at pp. 529-530.)

4. Her's statement


We also reject appellant's claim of Aranda/Bruton error to the
challenged statement made by Her. Her's statement, made during his
interview with Detective Eaton, and related to the jury by Eaton, was that
Her was present during a conversation about drugs. Her's statement did
not implicate appellant in any criminal activity. (Bruton, supra, 391 U.S. at
pp. 126, 135-136; Aranda, supra, 63 Cal.2d at pp. 529-530.)

5. Appellant's statement


Appellant's statement to Detective Eaton, related to the jury by
Eaton, was brief: He denied any knowledge about the homicide, but the
detectives already knew the story anyway because "somebody got a big
mouth." Use of appellant's statement against him did not violate the
Aranda/Bruton rule, which limits the use of statements made by
nontestifying codefendants. (Bruton, supra, 391 U.S. at pp. 126, 135-137;
Aranda, supra, 63 Cal.2d at pp. 528-531.)





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B. No Crawford Error Occurred


Appellant contends he was denied his right to confrontation and
cross-examination in violation of the principles enunciated in Crawford v.
Washington (2004) 541 U.S. 36. He argues, in effect, that Crawford
undermines the Aranda/Bruton rule. Crawford error occurred, according to
appellant, because, although defense counsel cross-examined the police
officers regarding his and his codefendants' statements, defense counsel
was prevented from full cross-examination. Appellant points to nothing
specific, but states counsel should have been able to question on
"portions of his own statement that may have helped his case by
demonstrating the context of the statements" and his codefendants
statements to show that their statements "lacked credibility." In Crawford,
the United States Supreme Court expanded a defendant's confrontation
rights by holding that an out-of-court "testimonial" statement offered
against the accused is inadmissible unless the declarant is unavailable
and the defendant had a prior opportunity to cross-examine that declarant.
(Crawford v. Washington, supra, 541 U.S. at pp. 68-69.) There is no
dispute
is
testimonial. (Ibid.; see also People v. Song (2004) 124 Cal.App.4th 973,
982.)

that a statement elicited during a police

interrogation


But Crawford does not overrule Bruton and its progeny. That
Vasquez, Calderon, Bacud, and Her's statements were "testimonial" under
Crawford does not help appellant because the statements did not
incriminate him, and the jury was instructed that the statements could not
be used against him. When a statement is properly redacted and the jury
is instructed not to use it against the defendant, as occurred here, the
declarant is not a "witness[] against" the defendant, and the statement
does not implicate the confrontation clause. (U.S. Const., 6th Amend.) The
same redaction that prevents Aranda/Bruton error also prevents Crawford
error. (People v. Stevens (2007) 41 Cal.4th 182, 199; People v. Song,
supra, 124 Cal.App.4th at pp. 983-984.)


People v. Vang, 2009 Cal. App. Unpub. LEXIS 8324 at 19-29.


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3.

Legal Standard

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The Sixth Amendment to the United States Constitution grants a criminal

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defendant the right "to be confronted with the witnesses against him." U.S. Const.

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amend. VI. "The 'main and essential purpose of confrontation is to secure for the

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opponent the opportunity of cross-examination.'" Fenenbock v. Director of Corrections

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for California, 692 F.3d 910 (9th Cir. 2012) (quoting Delaware v. Van Arsdall, 475 U.S.

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673, 678 (1986)). The Confrontation Clause applies to the states through the Fourteenth

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Amendment. Pointer v. Texas, 380 U.S. 400, 406 (1965).

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In 2004, the United States Supreme Court held that the Confrontation Clause bars

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in nature unless the witness is unavailable and the defendant had a prior opportunity to

cross-examine the witness, regardless of whether such statements are deemed reliable.

Crawford v. Washington, 541 U.S. 36 (2004). The Crawford rule applies only to hearsay

statements that are &