Ngo v. Giurbino

outright for an hope go Tony NGO, Ky Petitioner-Appellant, acquittal. invitation decline Government’s criminal vital in our role GIURBINO, to sacrifice Warden, Respondent- G.J. bargaining system plea justice Appellee. expedi- more for the sake of plays

process No. 08-55564. proceedings. removal tious civil Appeals, States

United Ninth Circuit. IV. 7,May 2010. Argued Submitted holding that Hernan- The BIA erred July Filed generic as qualified

dez-Cruz’s convictions offenses, thereby, ag- attempted theft felonies under 8 U.S.C.

gravated 1227(a)(2)(A)(iii). § erred hold- It also generic convictions were qualifying them as CIMTs burglary, 1227(a)(2)(A)(ii), reading 8 U.S.C. holding law as that California our case burglary And the commercial is CIMT. already convictions BIA has held that the generic offenses. qualify do not theft argued has that Her- Government nandez-Cruz’s convictions meet the defini- generic qualifying

tion of some other crime them as either felonies or aggravated BIA As the ruled on the Gov-

CIMTs. has removability, ernment’s theories of a re- in- unnecessary mand “would be both Gonzales, appropriate.” Ruiz-Vidal (9th Cir.2007); 473 F.3d Saavedra-Figueroa, also 628- 29; Gonzales, Femandez-Ruiz v. banc). (9th Cir.2006) (en

1121, 1132-35 GRANTED; PETITION OF ORDER REMOVAL VACATED. CLIFTON;

Opinion by Judge Partial Concurrence and Partial by Dissent Judge NOONAN.

OPINION

CLIFTON, Judge: Circuit Ky Tony Ngo was convicted a Cali- fornia court degree of one count of first murder, conspiracy one count of to com- murder, mit and six counts of murder, premeditated arising all shootings during gang-related two car chases on the same night. The district Ngo’s petition denied for writ of corpus habeas under 28 U.S.C. appeal, On Ngo argues that his convic- tions were not supported by sufficient evi- dence. He also contends that prose- cution’s of peremptory use challenges to strike African jurors violated rights Equal Protection Clause of the Fourteenth Amendment. Applying the deference owed in federal proceedings to state court rulings, we conclude that the state court findings and conclusions on these matters were not unreasonable. affirm. Background I. 22-23, night July

On the Benjamin Lechman, CA, Diego, P. San and six other members of the Asian Boyz for the appellant. defendants”) gang (collectively, “the decid- ed to find and shoot gang rival members. Cook, Deputy Attorney

David C. Gener- They vehicles, set out two one of them a al, CA, Angeles, Los appellee.

Honda belonging Ngo. Ngo CRX rode in the passenger front seat of his CRX. spotted defendants what be- lieved be two rival members exit- store, ing a convenience entering parked Toyota driving and then out of the NOONAN, store parking Before: JOHN T. lot. The defendants pur- CLIFTON, R. RICHARD and JAY S. sued and fired numerous shots the Ter- BYBEE, Judges. Circuit occupants. cel and its relating passengers, to the individuals seen tions the backseat

In addition store, allegedly improper per- there were use of the convenience exiting challenges prosecution. the backseat emptory three attempt- counts of Five six Tercel. review de novo a district court’s ultimately Ngo was murder on which ed petition of a for writ of habeas denial occupants based the five convicted Garcia, Rodriguez v. corpus. Benitez 495 Tercel, passen- three including the of the (9th Cir.2007) curiam). 640, (per 643 F.3d Ngo challenges the gers in the backseat. the Under Antiterrorism Effective regarding sufficiency of evidence (“AEDPA”), Penalty Death Act federal pertaining to the backseat three counts a of re- apply courts deferential standard particular, In he contends passengers. may cor- grant view and a writ of habeas that there was sufficient evidence only judgment if the court’s pus state pas- aware of the three backseat he was to, “contrary an involved unreasonable and thus not evidence sengers sufficient of, clearly Federal application established specific had the intent that he law, Supreme as determined Court him for murder of those attempted convict States,” of the United or was “based passengers. three unreasonable determination of the facts in defendants, night, includ- Later in the light evidence State court gun fight initiated a with ing Ngo, second 2254(d). § proceeding.” 28 U.S.C. Maxima, occupants killing of Nissan occupants. one of the This attack resulted Sufficiency A. the Evidence

in the murder conviction and the sixth attempted murder conviction. law, Under California the crime of jury selection, During prosecution requires specific murder intent peremptory challenges to ex- exercised alleged kill each victim. v. jurors. African De- clude five Smith, 733, 163, Cal.Rptr.3d 37 Cal.4th 37 objected fense counsel to the strikes on the (2005). 730, 124 P.3d 734 As the California racially basis motivated. Appeals decision Court observed its prosecution’s The trial court accepted the convictions, affirming Ngo’s “when shots explanations challenges for the as race- group people, are fired toward a objection. neutral and denied the jury may draw reasonable inference appeal,

On direct the California Court from all the that the shooter circumstances Appeal affirmed in a rea- convictions group.” to kill in the every person intended decision, Su- B132070, soned and the California Roeung, People v. No. 2003 WL preme denied state 1904695, 21, 2003) review. at *22 (Cal.Ct.App. Apr. petitions Bland, for habeas were also 313, (citing People v. 121 28 Cal.4th Ngo denied. a federal subsequently 546, 1107, filed 48 P.3d 1118-20 petition corpus. (2002)). for writ of “Circumstantial evidence in petition, district court denied the drawn from ferences be sufficient to timely appealed. Maass, sustain a conviction.” Walters (9th Cir.1995) (quoting 1358 II. Discussion Lems, States v. United (9th Cir.1986), by Ngo’s petition Two issues raised 1323 amended on denial of (9th Cir.1986)); for appeal reh’g, were certified under 28 U.S.C. 798 F.2d 1250 see sufficiency Barajas, 2253: of the evidence States also United v. Cordova (9th Cir.2004) (“[C]ircum- for the three murder convic- F.3d alone can during stantial evidence be sufficient store and the chase to observe guilt.”). demonstrate a defendant’s there occupants were additional in the specific Tercel. There was no evidence reviewing sufficiency In of evi could not be seen. of all dence, may grant habeas relief if including appellants’ circumstances trier of fact “no rational could have found purpose to look members to guilt beyond a reasonable doubt.” shoot, the presence victims’ close togeth- 307, 324, Virginia, Jackson U.S. iner the confines of a and the (1979); S.Ct. L.Ed.2d 560 fired, number of shots the jury could — Brown, -, also McDaniel reasonably appellants conclude shared a 665, 673, 130 S.Ct. 175 L.Ed.2d 582 specific intent to kill each of the at- (2010); Johnson, 557, People v. 26 Cal.3d tempted murder victims. 431, 738, CaL.Rptr. 162 606 P.2d 750-51 (1980). review, In this all evidence must 1904695, Roeung, 2003 WL at *23. light be considered in the most favorable Although might it have possi been prosecution, to the and we presume “that ble draw a different inference from the of fact any [conflicting the trier resolved evidence, we are required to resolve that prosecution.” favor of the inferences] conflict in favor of prosecution. See Jackson, 326, 443 U.S. at 99 S.Ct. 2781. Jackson, 326, at 99 S.Ct. 2781 Furthermore, AEDPA, apply “[a]fter (“[A] federal court faced the standards of Jackson with an addi- with a record of historical sup facts that layer tional of deference” to state court ports conflicting pre inferences must Allen, findings. H. v. Juan sume—even if it does not affirmatively (9th Cir.2005). 1262, 1274 appear in the record—that the trier of fact presented Evidence was re- any resolved such conflicts favor of the garding the defendant’s motivation to kill prosecution, and must defer to that resolu opposing gang Ngo members. had the tion.”). opportunity to observe the car and its oc- cupants parked while was in the con- The record not compel does the conclu- throughout venience store lot and the du- sion that no rational trier of fact could fact, ration of the car high chase. have found of guilt, including specific light shining beam on the Tercel intent to kill the passen- three backseat chase, during Ngo’s CRX “came gers, especially considering the double def- alongside” the Tercel before the shots erence owed under Jackson and AEDPA A jury fired. reasonable could have to state court findings. precisely, More inferred from the circumstantial evidence the record require does not us to conclude of visibility and the number of shots fired that Appeal’s California Court of de- Ngo required specific that had the intent that termination there was sufficient evi- to kill all five in the Tercel. PL., dence was unreasonable. See Juan The California Court of Appeal so con- 408 F.3d at 1274-75. Accordingly, we af- cluded: firm the district Ngo’s court’s denial of

Inferably appellants ample opportu- petition had as to the murder con- nity observing while the Tercel at the victions.1 evidence, Ngo argued

1. has also granted his convictions for sufficient but he was not murder and appealability by for one count of mur- a certificate of the district der in Ngo connection with the shots fired at the court on those issues. We conclude that occupants supported of the Maxima were not has not made the substantial show- wrongfully he had been accused who felt Challenges Peremptory B. ex- Additionally, prosecutor a crime. claim turn We next juror’s responses re- that the fifth plained Fourteenth violated prosecution to the gun purchase indicated garding striking five by peremptorily Amendment juror prospective prosecutor the basis of jurors on African American attitude about the defendants’ shared race. guns. dire, raised defense counsel During voir Wheeler, 22 rea prosecutor’s objections contends allegation P.2d 748 im CaLRptr. pretextual. This sons were

Cal.3d (1978), three, to the counterpart step the California Batson’s where plicates Ken- of Batson v. three-step framework has whether the defendant court evaluates 79, 96-98, 106 S.Ct. 476 U.S. tucky, showing purposeful dis met the burden (1986), evaluate used to 90 L.Ed.2d 69 justifi proffered crimination peremptory prosecution’s whether Cambra, cations. Kesser racially discriminato- resulted from strikes (en Batson, (9th Cir.2006) banc); Gomez, 190 Tolbert v. ry motives. See 98, 106 U.S. at S.Ct. Cir.1999). (9th Defense F.3d questioned the judge The trial objection counsel raised the first Wheeler that concluding prosecutor before African prosecutor struck four after pretex were not prosecutor’s explanations venire, raised the Americans from the and tual, appro “entitled to finding and this is objection prose- when second Wheeler LaMarque, priate deference.” Cook cutor a fifth African excused Cir.2010) (9th (affording def F.3d juror. judge The trial concluded findings factual erence to the court’s racial a case of prima had made facie prosecutor’s upon consideration of requested explana- discrimination and justifications); Felkner v. proffered prosecutor. tion from the — Jackson, —-, 131 S.Ct. jus- prosecutor The offered race-neutral (2011). Moreover, 1307, 179 L.Ed.2d 374 Afri- striking tifications each of the five for review, the district court evaluated the juror had jurors. can American The first compara a transcript, voir dire conducted juries, three of which previous been on five juror analysis possible, where tive jurors The second and third hung. were generally no inconsistencies. See found preference a for a life sentence expressed Dretke, 231, 240-41, 545 U.S. Miller-El penalty. the death parole without over 2317, 162 L.Ed.2d 196 125 S.Ct. degree a juror The fourth had law juror analysis a as a (favoring comparative prosecu- psychology background, and proving purposeful means of discrimina the defense tor said she was concerned Kesser, tion); at 361 see also F.3d psychiatrists call might psychologists transcript the voir dire is (noting judge the trial for an witnesses. Asked conducting comparative for a adequate juror, prose- fifth explanation as to the analysis). Neither do we. At least one juror in responded cutor indicated a prospective juror expressed who other at- questionnaire that he had been stricken, mini-mart, imposing life was preference security at a tacked a officer juror whose answers arrested, at least one other over the inci- was and had sued in a juror that service result prosecutor wpuld The not want a indicated dent. did right expand the certificate to as to and we decline to of the denial of a constitutional 22-l(c). 2253(c)(2), Ninth Circuit Rule those issues. See arguments, see 28 U.S.C. those stricken, jurors Relying testimony was who of the accom- hung jury Dinh, who plice who accused a rear seat in the wrongfully had relatives were jury. Toyota Supra, appeal the court of quoted a were stricken from crime from the record: appear does not to anoth- There have been background juror degree with law er Why you peo- want to did follow these juror but who is psychology, striking ple? thought [A:] Because we [¶] race-neu- “overly sufficiently educated” is gang.... were another [¶] shift the burden the defen- tral to back on [Q:] was going happen? What to [A:] [¶] prove purposeful to dant discrimination. I we going knew that to shoot at Prunty, [Q:] See McClain Why? them. Because [¶] [¶] [A:] Cir.2000). (9th The made just defendant gang.” from another showing purposeful no such discrimina- he people Asked whether saw other tion car, here. replied, Dinh “I can’t remem- ber.”

Accordingly, district agree with the appeal The court of then stated: court that state trial court’s determina- testimony this Although might con- step tion at Batson three was not unrea- be victims, strued refer We affirm the court’s sonable. district “they” references and “them” were Ngo’s petition peremp- denial as to the ambiguous, and Dinh’s failure to tory challenges. remem-

ber persons might other be construed as Inferably appellants ample evasive. III. had Conclusion opportunity while observing the Tercel judgment deny- the district court and during the store to the chase petition for writ of habeas cor- Ngo’s observe there were additional occupants pus is affirmed. in the Tercel. There was no specific AFFIRMED. they evidence could not be seen. In the including of all circumstances NOONAN, concurring Circuit Judge, purpose appellants’ to look for dissenting: and shoot, to victims’ members the close majority I in the opinion concur of the presence together in the of a confines except as to its affirmance of convic- Ngo’s fired, the number of shots attempted tions of murder. jury reasonably ap- the could conclude pellants specific kill shared intent to appeal In its brief on in its oral each attempted of the murder victims. us, rely to argument the state did not kill zone” approach adopted People appeals’ opinion “the The of posi- court draws Bland, 313, 329-30, 28 Cal.4th negatives. Cal. tive “There was no (2002), seen,” Rptr.2d perhaps they 48 P.3d 1107 specific evidence could not be says, is not clear that front and that going because the court on to infer that Dinh, witness, of only back seats the Tercel treated were seen. the state’s could be single accepted area. spoke gone as a The state of the who had to the store returned, of showing “they.” burden knew that The of beings “they” human back seat Dinh appeal ambiguous; there were finds major difficulty of Tercel. The to he state’s could have meant include the three opinion appeal of Dinh is that of the court hadn’t mentioned. When testifies number, the attack less as a of men that he does not remember the describes battle appeal says testimony a battle of than as cars. the court of evasive.” conviction murders construed as So be “might of the three backseat violates into of is converted want evidence state’s not process due of law and should stand. by discrediting state’s evidence If to shooting. deference witness appeal the court of is “findings” of

these Supreme by AEDPA or petitions of federal review precedent, to an for- empty is reduced mality. “their” con- “they”

That be not ambiguous does constitute strued as reasonable beyond a doubt evidence were people there any attacker knew is con- seat. Dinh’s evasion the back positive into evidence. The ab- vertible that the back-seat three sence evidence CALIFORNIA, ex rel. State of Kamala cannot be into not be seen turned could HARRIS,* Plaintiff-Appellant, D. pur- seen. The evidence rivals, shoot Ngo’s gang, does pose knowledge that there not establish SAFEWAY, INC., Safeway Company three in the back seat be shot. doing Vons; Albertsons, business as Inc.; Grocery Ralphs Company, a divi Lee, 613, 623-24, 31 Cal.4th Kroger Company; sion Food 4 (2003), 74 P.3d 176 Company, Food a division of the Less spoke Supreme Court California Kroger Company; Companies Vons mind an

state of needed aider and Inc., indirect, wholly subsid an owned murder abettor case. The iary Safeway, Inc., Defendants-Ap court noted that an aider and abettor must pellees. full perpe- “know the extent of direct trator’s criminal and must aid purpose give California, rel. Kamala State of ex encouragement pur- with intent or Harris, Plaintiff-Appellee, D. perpetrator’s of the direct

pose facilitating ... person commission of the crime murder as an guilty aider kill.”

and abettor intend to Id. at must Safeway Safeway Company doing Inc. P.3d 176. Vons; Albertsons, Inc.; business as Though an aider and abettor have Grocery Ralphs Company, a division prin- ascribed to him actus reus of Kroger Company; Food 4 Less cipal, wholly he must his own inde- have Company, Food of the Kro division intent, intent. pendent To have that ger Company; Companies Inc. Vons wholly subsidiary have had indirect, would to know of existence of owned Safeway, Defendants-Appel the back-seat No three. evidence estab- Inc. lishes that he did. lants.

* California, pursuant prede- Kamala D. eral the State of Harris is substituted her cessor, Brown, 43(c)(2). Appellate Attorney Edmund Procedure G. Gen- Federal Rule

Case Details

Case Name: Ngo v. Giurbino

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 11, 2011

Citation: 651 F.3d 1112

Docket Number: 08-55564

Court Abbreviation: 9th Cir.