Ky Ngo v. G. Giurbino

Filing

FILED OPINION (JOHN T. NOONAN, RICHARD R. CLIFTON and JAY S. BYBEE) AFFIRMED. Judge: JTN Concurring & Dissenting, Judge: RRC Authoring, FILED AND ENTERED JUDGMENT. [7814095]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KY TONY NGO,
Petitioner-Appellant,
v.
G. J. GIURBINO, Warden,
Respondent-Appellee.

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


No. 08-55564
D.C. No.
2:05-cv-07975DDP-RC
OPINION

Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
May 7, 2010—Pasadena, California
Filed July 11, 2011
Before: John T. Noonan, Richard R. Clifton, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Clifton;
Partial Concurrence and Partial Dissent by Judge Noonan

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COUNSEL
Benjamin P. Lechman, San Diego, California, for the appellant.

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David C. Cook, Deputy Attorney General, Los Angeles, California, for the appellee.

OPINION
CLIFTON, Circuit Judge:
Ky Tony Ngo was convicted by a California court of one
count of first degree murder, one count of conspiracy to commit murder, and six counts of attempted premeditated murder,
all arising from shootings during two gang-related car chases
on the same night. The district court denied Ngo’s petition for
writ of habeas corpus under 28 U.S.C. § 2254. On appeal,
Ngo argues that his convictions were not supported by sufficient evidence. He also contends that the prosecution’s use of
peremptory challenges to strike African American jurors violated his rights under the Equal Protection Clause of the Fourteenth Amendment. Applying the deference owed in federal
habeas corpus proceedings to state court rulings, we conclude
that the state court findings and conclusions on these matters
were not unreasonable. We affirm.
I.

Background

On the night of July 22-23, 1995, Ngo and six other members of the Asian Boyz gang (collectively, “the defendants”)
decided to find and shoot rival gang members. They set out
in two vehicles, one of them a Honda CRX belonging to Ngo.
Ngo rode in the front passenger seat of his CRX.
The defendants spotted what they believed to be two rival
gang members exiting a convenience store, entering a parked
Toyota Tercel, and then driving out of the store parking lot.
The defendants pursued and fired numerous shots at the Tercel and its occupants.

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In addition to the two individuals seen exiting the convenience store, there were three passengers in the backseat of
the Tercel. Five of the six counts of attempted murder on
which Ngo was ultimately convicted were based on the five
occupants of the Tercel, including the three passengers in the
backseat. Ngo challenges the sufficiency of the evidence
regarding the three counts pertaining to the backseat passengers. In particular, he contends that there was not sufficient
evidence that he was aware of the three backseat passengers
and thus not sufficient evidence that he had the specific intent
required to convict him for attempted murder of those three
passengers.
Later that night, the defendants, including Ngo, initiated a
second gun fight with the occupants of a Nissan Maxima, killing one of the occupants. This attack resulted in the murder
conviction and the sixth attempted murder conviction.
During jury selection, the prosecution exercised peremptory challenges to exclude five African American jurors.
Defense counsel objected to the strikes on the basis that they
were racially motivated. The trial court accepted the prosecution’s explanations for the challenges as race-neutral and
denied the objection.
On direct appeal, the California Court of Appeal affirmed
the convictions in a reasoned decision, and the California
Supreme Court denied review. Ngo’s state court petitions for
habeas corpus were also denied. Ngo subsequently filed a federal petition for writ of habeas corpus. The district court
denied the petition, and Ngo timely appealed.
II.

Discussion

Two issues raised by Ngo’s petition were certified for
appeal under 28 U.S.C. § 2253: (1) the sufficiency of the evidence for the three attempted murder convictions relating to

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the backseat passengers, and (2) the allegedly improper use of
peremptory challenges by the prosecution.
We review de novo a district court’s denial of a petition for
writ of habeas corpus. Rodriguez Benitez v. Garcia, 495 F.3d
640, 643 (9th Cir. 2007) (per curiam). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), federal
courts apply a deferential standard of review and may grant
a writ of habeas corpus only if the state court’s judgment was
“contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States,” or was “based on an unreasonable
determination of the facts in light of the evidence in the State
court proceeding.” 28 U.S.C. § 2254(d).
A.

Sufficiency of the Evidence

[1] Under California law, the crime of attempted murder
requires specific intent to kill each alleged victim. People v.
Smith, 124 P.3d 730, 734 (Cal. 2005). As the California Court
of Appeals observed in its decision affirming Ngo’s convictions, “when shots are fired toward a group of people, the jury
may draw a reasonable inference from all the circumstances
that the shooter intended to kill every person in the group.”
People v. Roeung, No. B132070, 2003 WL 1904695, at *22
(Cal. Ct. App. Apr. 21, 2003) (citing People v. Bland, 48 P.3d
1107, 1118-20 (Cal. 2002)). “Circumstantial evidence and
inferences drawn from it may be sufficient to sustain a conviction.” Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir.
1995) (quoting United States v. Lewis, 787 F.2d 1318, 1323
(9th Cir. 1986), amended on denial of reh’g, 798 F.2d 1250
(9th Cir. 1986)); see also United States v. Cordova Barajas,
360 F.3d 1037, 1041 (9th Cir. 2004) (“[C]ircumstantial evidence alone can be sufficient to demonstrate a defendant’s
guilt.”).
In reviewing the sufficiency of evidence, we may grant
habeas relief only if “no rational trier of fact could have found

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proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 (1979); see also McDaniel v. Brown,
___ U.S. ___, 130 S. Ct. 665, 673 (2010); People v. Johnson,
606 P.2d 738, 750-51 (Cal. 1980). In this review, all evidence
must be considered in the light most favorable to the prosecution, and we presume “that the trier of fact resolved any [conflicting inferences] in favor of the prosecution.” Jackson, 443
U.S. at 326. Furthermore, “[a]fter AEDPA, we apply the standards of Jackson with an additional layer of deference” to
state court findings. Juan H. v. Allen, 408 F.3d 1262, 1274
(9th Cir. 2005).
[2] Evidence was presented at trial regarding the defendant’s motivation to kill opposing gang members. Ngo had
the opportunity to observe the car and its occupants while it
was parked in the convenience store lot and throughout the
duration of the car chase. In fact, a high beam light was shining on the Tercel during the chase, and Ngo’s CRX “came
alongside” the Tercel before the shots were fired. A reasonable jury could have inferred from the circumstantial evidence
of visibility and the number of shots fired that Ngo had the
required specific intent to kill all five passengers in the Tercel.
The California Court of Appeal so concluded:
Inferably appellants had ample opportunity while
observing the Tercel at the store and during the
chase to observe there were additional occupants in
the Tercel. There was no specific evidence they
could not be seen. In light of all the circumstances
including appellants’ purpose to look for gang members to shoot, the victims’ close presence together in
the confines of a Tercel, and the number of shots
fired, the jury could reasonably conclude appellants
shared a specific intent to kill each of the attempted
murder victims.

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Roeung, 2003 WL 1904695, at *23.
Although it might have been possible to draw a different
inference from the evidence, we are required to resolve that
conflict in favor of the prosecution. See Jackson, 443 U.S. at
326 (“[A] federal habeas corpus court faced with a record of
historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record
— that the trier of fact resolved any such conflicts in favor of
the prosecution, and must defer to that resolution.”).
[3] The record does not compel the conclusion that no
rational trier of fact could have found proof of guilt, including
specific intent to kill the three backseat passengers, especially
considering the double deference owed under Jackson and
AEDPA to state court findings. More precisely, the record
does not require us to conclude that the California Court of
Appeal’s determination that there was sufficient evidence was
unreasonable. See Juan H., 408 F.3d at 1274-75. Accordingly,
we affirm the district court’s denial of Ngo’s petition as to the
attempted murder convictions.1
B.

Peremptory Challenges

We next turn to Ngo’s claim that the prosecution violated
the Fourteenth Amendment by peremptorily striking five
African American jurors on the basis of race.
During voir dire, defense counsel raised two objections
under People v. Wheeler, 583 P.2d 748 (Cal. 1978), the Cali1

Ngo has also argued that his convictions for murder and for one count
of attempted murder in connection with the shots fired at the occupants of
the Maxima were not supported by sufficient evidence, but he was not
granted a certificate of appealability by the district court on those issues.
We conclude that Ngo has not made the required substantial showing of
the denial of a constitutional right as to those arguments, see 28 U.S.C.
§ 2253(c)(2), and we decline to expand the certificate to those issues. See
Ninth Circuit Rule 22-1(c).

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fornia counterpart to the three-step framework of Batson v.
Kentucky, 476 U.S. 79, 96-98 (1986), used to evaluate
whether the prosecution’s peremptory strikes resulted from
racially discriminatory motives. See Tolbert v. Gomez, 190
F.3d 985, 987 (9th Cir. 1999). Defense counsel raised the first
Wheeler objection after the prosecutor struck four African
Americans from the venire, and raised the second Wheeler
objection when the prosecutor excused a fifth African American juror. The trial judge concluded that Ngo had made a
prima facie case of racial discrimination and requested an
explanation from the prosecutor.
The prosecutor offered race-neutral justifications for striking each of the five African American jurors. The first juror
had been on five previous juries, three of which were hung.
The second and third jurors expressed a preference for a life
sentence without parole over the death penalty. The fourth
juror had a law degree and psychology background, and the
prosecutor said she was concerned the defense might call psychologists or psychiatrists as witnesses. Asked by the trial
judge for an explanation as to the fifth juror, the prosecutor
responded that the juror indicated in his questionnaire that he
had been attacked by a security officer at a mini-mart, was
arrested, and had sued over the incident. The prosecutor did
not want a juror who felt he had been wrongfully accused of
a crime. Additionally, the prosecutor explained that the fifth
juror’s responses regarding a gun purchase indicated to the
prosecutor that the prospective juror shared the defendants’
attitude about guns.
Ngo contends that the prosecutor’s reasons were pretextual.
This allegation implicates Batson’s step three, where the court
evaluates whether the defendant has met the burden of showing purposeful discrimination in light of the proffered justifications. Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir. 2006)
(en banc); Batson, 476 U.S. at 98.
[4] The trial judge questioned the prosecutor before concluding that the prosecutor’s explanations were not pretextual,

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and this finding is “entitled to appropriate deference.” Cook
v. LaMarque, 593 F.3d 810, 815 (9th Cir. 2010) (affording
deference to the trial court’s factual findings upon consideration of the prosecutor’s proffered justifications); see Felkner
v. Jackson, ___ U.S. ___, 131 S. Ct. 1305, 1307 (2011).
Moreover, on review, the district court evaluated the voir dire
transcript, conducted a comparative juror analysis where possible, and found no inconsistencies. See generally Miller-El v.
Dretke, 545 U.S. 231, 240-41 (2005) (favoring a comparative
juror analysis as a means of proving purposeful discrimination); see also Kesser, 465 F.3d at 361 (noting that the voir
dire transcript is adequate for conducting a comparative analysis). Neither do we. At least one other prospective juror who
expressed a preference for imposing life was stricken, at least
one other juror whose answers indicated that service would
result in a hung jury was stricken, and jurors who had relatives who were wrongfully accused of a crime were stricken
from the jury. There does not appear to have been another
juror with a law degree and background in psychology, but
striking a juror who is “overly educated” is sufficiently raceneutral to shift the burden back on the defendant to prove purposeful discrimination. See McClain v. Prunty, 217 F.3d
1209, 1220 (9th Cir. 2000). The defendant made no such
showing of purposeful discrimination here.
[5] Accordingly, we agree with the district court that the
state trial court’s determination at Batson step three was not
unreasonable. We affirm the district court’s denial of Ngo’s
petition as to the peremptory challenges.
III.

Conclusion

The judgment of the district court denying Ngo’s petition
for writ of habeas corpus is affirmed.
AFFIRMED.

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NOONAN, Circuit Judge, concurring and dissenting:
I concur in the opinion of the majority except as to its affirmance of Ngo’s convictions of attempted murder.
In its brief on appeal and in its oral argument to us, the state
did not rely on “the kill zone” approach adopted by People v.
Bland, 28 Cal. 4th 313, 329-30 (2002), perhaps because it is
not clear that the front and back seats of the Tercel could be
treated as a single area. The state accepted the burden of
showing that Ngo knew that there were human beings in the
back seat of the Tercel. The state’s major difficulty is that the
opinion of the Court of Appeal describes the attack less as a
battle of men than as a battle of cars.
Relying on the testimony of the accomplice Dinh, who was
in a rear seat in the Toyota Supra, the court of appeal quoted
from the record:
Why did you want to follow these people? [¶] [A:]
Because we thought that they were from another
gang. . . . [¶] [Q:] What was going to happen? [¶]
[A:] I knew that we were going to shoot at them. [¶]
[Q:] Why? [¶] [A:] Because they were just from
another gang.” Asked whether he saw other people
in the car, Dinh replied, “I can’t remember.”
The court of appeal then stated:
Although this testimony might be construed to refer
only to two victims, the references to “they” and
“them” were ambiguous, and Dinh’s failure to
remember other persons might be construed as evasive. Inferably appellants had ample opportunity
while observing the Tercel at the store and during
the chase to observe there were additional occupants
in the Tercel. There was no specific evidence they
could not be seen. In light of all the circumstances

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including appellants’ purpose to look for gang members to shoot, the victims’ close presence together in
the confines of a Tercel, and the number of shots
fired, the jury could reasonably conclude appellants
shared a specific intent to kill each of the attempted
murder victims.
The court of appeals’ opinion draws positive proof from
negatives. “There was no specific evidence they could not be
seen,” that court says, going on to infer that they were seen.
Dinh, the state’s only witness, spoke of the two who had gone
to the store and returned, as “they.” The court of appeal finds
the “they” ambiguous; Dinh could have meant to include the
three he hadn’t mentioned. When Dinh testifies that he does
not remember the number, the court of appeal says his testimony “might be construed as evasive.” So the state’s want of
evidence as converted into evidence by discrediting the state’s
only witness to the shooting. If deference to these “findings”
of the court of appeal is required by AEDPA or Supreme
Court precedent, federal review of petitions of habeas corpus
is reduced to an empty formality.
That “they” and “their” may be construed as ambiguous
does not constitute evidence beyond a reasonable doubt that
any attacker knew there were people in the back seat. Dinh’s
evasion is not convertible into positive evidence. The absence
of evidence that the back-seat three could not be seen cannot
be turned into evidence that they were seen. The purpose of
Ngo’s gang, to shoot rivals, does not establish Ngo’s knowledge that there were three in the back seat to be shot.
In People v. Lee, 31 Cal.4th 613, 623-24 (2003), the California Supreme Court spoke on the state of mind needed by
an aider and abettor in an attempted murder case. The court
noted that an aider and abettor must “know the full extent of
the direct perpetrator’s criminal purpose and must give aid or
encouragement with the intent or purpose of facilitating the
direct perpetrator’s commission of the crime . . . the person

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guilty of attempted murder as an aider and abettor must intend
to kill.” Id. at 624. Though an aider and abettor may have
ascribed to him the actus reus of his principal, he must have
his own wholly independent intent. To have that intent, Ngo
would have had to know of the existence of the back-seat
three. No evidence establishes that he did.
The conviction of the attempted murders of the three backseat passengers violates due process of law and should not
stand.