Tran v. Gastelo

Filing 10

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS. Signed by Judge Charles R. Breyer on 8/9/2018. (lsS, COURT STAFF) (Filed on 8/9/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CUONG QUOC TRAN, AL3711,
Petitioner,

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v.

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JOSIE GASTELO, Warden,

ORDER DENYING PETITION
FOR A WRIT OF HABEAS
CORPUS

Respondent.

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United States District Court
Northern District of California

Case No. 18-cv-00626-CRB (PR)

Petitioner Cuong Quoc Tran, a state prisoner incarcerated at the California Men’s Colony

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in San Luis Obispo, seeks a writ of habeas corpus under 28 U.S.C. § 2254 invalidating a

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conviction and sentence from Santa Clara County Superior Court. Per order filed on March 22,

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2018, this Court (Cousins, M.J.) found that the petition states cognizable claims for relief under §

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2254, when liberally construed, and ordered respondent to show cause why a writ of habeas

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corpus should not be granted. Respondent filed an answer to the order to show cause, but

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Petitioner did not file a traverse.

BACKGROUND

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A.

Statement of the Case
On October 11, 2011, the Santa Clara County District Attorney charged Petitioner Cuong

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Tran with conspiracy to commit murder. Petitioner’s brother Kevin Tran was also charged with

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conspiracy to commit murder, as well as with kidnaping for ransom and false imprisonment with

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various gun-use enhancements.

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On November 1, 2011, the jury found the two co-defendants guilty as charged.

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On April 24, 2012, Petitioner was sentenced to 25-years-to-life for conspiracy to commit

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murder, and on October 22, 2012, Petitioner’s brother Kevin Tran was sentenced to life with the

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possibility of parole for kidnaping for ransom, plus 20 years consecutive for a firearm

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enhancement; 25-years-to-life for conspiracy to commit murder, to be served consecutively; and a

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two-year mid-term for false imprisonment, to be served concurrently.
On August 5, 2016, the California Court of Appeal affirmed the judgments of the trial

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court and, on November 9, 2016, the Supreme Court of California denied Petitioner’s application

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for review.
On January 29, 2018, Petitioner filed the instant federal habeas petition.

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B.

Statement of the Facts
The California Court of Appeal summarized the facts of the case as follows:
A. THE PROSECUTION’S CASE
1. Kidnapping
Peter Lam testified to receiving a phone call from Kevin at 5:00 a.m.
on Sunday, January 9, 2011. Lam had spent Saturday evening with
his friend Vu and had not slept, having played video games after
returning home. Kevin was upset and wanted to speak with Lam
because Vu was Kevin’s girlfriend, and he suspected she and Lam
were having a sexual relationship. Lam reluctantly agreed to meet
Kevin at Vu’s San Jose home. Kevin told Lam not to tell anyone
where he was going or involve the police.
Kevin and Lam talked in Lam’s car outside Vu’s home. Kevin asked
Lam to describe his relationship with Vu. He grabbed Lam’s phone
to read his text messages. Lam told Kevin he and Vu had met in
class and were just friends.
Kevin had Lam knock on Vu’s door. When she answered, Lam
stepped back and she and Kevin spoke briefly. Kevin told Lam that
everything was okay, and he asked Lam for a ride home. After some
persistence on Kevin’s part, Lam agreed. Once in Lam’s car, Kevin
insisted that Lam “in good faith” show him where he lived. To
appease Kevin, Lam reluctantly agreed. But when Lam exited the
freeway near his house, he turned around. All the while Kevin was
calling Vu using Lam’s phone. Suddenly, Kevin wielded a handgun,
held it to Lam’s head, and told him to drive to Highway 152. Kevin
said “To show you I’m not fucking around,” and he fired the gun
into the back seat.
Kevin told Lam he should not have meddled in his relationship with
Vu, and he gave Lam three options: (1) They were going to Los
Angeles where Kevin was going to kill Lam; (2) if Lam struggled,
Kevin would kill him immediately, and if the police were involved
Lam’s family also would be killed; or (3) if Lam cooperated, Kevin
might spare his life in Los Angeles but take everything Lam owned,
including his car. Scared for his life and his family, and saddled with
a broken leg from a recent injury, Lam decided to cooperate.
Kevin took apart Lam’s cell phone and threw it in pieces from the
car window. During their drive to Los Angeles, Kevin repeated the
three options and periodically pulled out his gun. Kevin told Lam he
should have stayed away from Vu, and said this could be avoided if
Lam would give him $10,000 cash within the next couple of hours.
Lam told Kevin that was not possible.
They arrived in Orange County where Kevin checked his computer
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and asked Lam about a text message from Vu. But Lam had no way
to retrieve his messages because Kevin had discarded Lam’s phone.
Before calling Vu from a payphone, Kevin told Lam that he would
live or die depending on what she said. After speaking with Vu,
Kevin told Lam that he was going to his gravesite. Kevin told Lam
to drive to the desert, asking whether he preferred a fast or slow
death. Kevin told Lam he would spare his life if Lam would kill Vu
and her family. Lam refused. Lam offered to give Kevin more
money within a less-stringent timeframe, but Kevin refused.
Kevin directed Lam to a dirt road off a remote exit near Bakersfield
where Lam thought Kevin would kill him. Instead, Kevin had Lam
make a U-turn and return to the freeway. They headed back to San
Jose, but Kevin warned Lam that he was not done with him. They
arrived at Vu’s around 10:00 p.m. and switched to Kevin’s car.
Kevin started driving and Lam closed his eyes. Kevin pressed Lam
about Vu. Lam insisted they were just friends, causing Kevin to
punch Lam’s face with a gun in his hand and hold the gun to his
neck.
Kevin told Lam he would spare his life for $15,000 and his car.
Kevin drove to an ATM, but Lam told him they should wait until
morning when the bank opened because he could not withdraw
enough money from the ATM. He told Kevin he needed to call his
sister for some of the money. Lam called his sister from a pay
phone, told her he needed about $5,000, he would call her back, and
not to call the police. Kevin drove to a golf course and told Lam that
is where he would kill him and dispose of his body if he did not get
the money. After Lam called his sister a second time, she called the
police.
Lam fell asleep in Kevin’s car. When morning came, Kevin again
threatened him and his family if he did not get the money. Kevin
and Lam entered the bank, and Lam asked the teller to withdraw all
possible cash from his credit cards and checking account. The
teller’s computer screen indicated “customer’s possibly kidnapped”
and to call 911. Bank employees stalled the transaction until police
arrived. Kevin left the bank to use the restroom in a neighboring
building. Lam did not tell bank staff he had been kidnapped, nor did
he disclose his kidnapping to police when they arrived. He did not
know if Kevin had fled, and he was still scared for his family’s
safety.
Kevin was arrested and was interviewed by police. That interview
was recorded and played to the jury. First he said Lam had a gun.
Then he said he had a gun and used it to scare Lam, and it was
discharged during a struggle. He said he threw the gun into the
ocean, at which point the matter was settled, the two agreed to let
bygones be bygones, and Lam had no reason to fear Kevin for the
duration of the road trip. Kevin said he punched Lam with a fist
when he first met him at Vu’s. He denied pistol whipping Lam,
claiming Lam’s facial gash was the result of a fall before the two
met. Kevin denied demanding money from Lam, and he repeatedly
claimed that Lam had offered him money to redeem himself after
learning that Vu was Kevin’s girlfriend. But he also said that Lam
had offered him money to get him out of the picture so Lam could
have a chance with Vu.
No gun was recovered from Kevin, Lam, or either vehicle. A small
hole, bullet, and spent casing were found in Lam’s back seat, and a
tactical knife was found under Kevin’s passenger seat.
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2. Murder For Hire
a. Communications between Kevin and Officer Davis
While Kevin was in custody, San Jose Police Officer Theodore
Davis learned from a confidential jail informant that Kevin was
soliciting Lam’s murder for hire. Working undercover and using the
name Richard, Davis visited Kevin in jail on March 10, 2011. They
spoke through a glass barrier by phone, and that conversation was
recorded. Davis told Kevin that his cousin had sent him, and he
asked Kevin if he knew what he was talking about. Kevin nodded
several times and winked at Davis. Davis spoke with Kevin about
“dismantling a bike.” He told Kevin he would need to break the
bikes down and would need $4,000 per bike and tools for the job.
Kevin said that would not be a problem. Davis told Kevin he would
need some money up front and hardware for the job. Kevin
responded, “those Indian bikes are costly.” Kevin instructed Davis
to send him a letter and he would “fill in” the rest. Davis pressed a
Facebook photograph of Lam, with “Peter Lam” written above the
image, to the glass barrier and asked Kevin if that was a bike he
wanted dismantled. Kevin said yes, that he did not have a need for it
anymore. Not sure how many persons Kevin wanted killed, Davis
asked Kevin where the other bike was. Kevin said that bike was with
him.
Davis testified that he spoke to Kevin in code because he was
portraying himself as a hit man, he knew the phone conversation
could be recorded, and he did not want the investigation
compromised or Lam’s safety jeopardized. He used “dismantle” to
mean kill or murder, and “take care of it” and “fix it up” to mean kill
and dispose of. “Tools” and “hardware” meant guns, and the victim
was referred to as a “bike.” He acknowledged that he had formed an
opinion before meeting Kevin that Kevin wanted to hire him to kill
Lam, that the code words were his, not Kevin’s, and that Kevin
never used the words murder or kill during their visit.
Per Kevin’s instruction, Davis wrote Kevin a letter on March 13. He
asked if Kevin was sure he wanted Davis “to get rid of the one I
showed you,” and said he would “need $400 up front and some tools
for the job.” Davis wrote, “Have your freind [sic] give me a call to
get the tools and the mony [sic]. I will take care of the rest.” He
provided a return address and phone number. Kevin wrote that he
was “getting all the information you need put together.” Kevin
continued: “I don’t want to risk interception of everything on one
letter. I will write back soon. I’m currently positioning all the assets
and tools into one location. Please be patient a little, we’ll work
together to get things done.” The postscript read: “Don’t worry
about writing back. They open mail here, I’ll stay in contact until I
ask for a confirmation. Thanks, and destroy this letter when you’re
done with it.”
On April 28, Davis received a second letter from Kevin dated April
12. Kevin explained he was minimizing his communications to
avoid interception, that an associate would be representing him, and
that associate would be contacting Davis with information on the
bikes needing work. The letter continued: “I’m letting you know I’m
still serious, I was just having difficulties moving all my furniture
and stuff and tools to stay in constant contact with you. You do not
need to write back. Please contact with my associate and I’ll receive
word through him.” The postscript read: “Also, get what you need
from the letter and dispose of it with the envelop [sic] too.”
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b. Communications between Cuong and Officer Davis
On April 11, 2011, Kevin’s brother Cuong, who lived in Orange
County, sent Davis the first of nearly 100 text messages, saying,
“Hey Richard, [¶]. . .[¶] I was asked to contact you from Kevin
regarding dismantling a bike.” Davis responded, “hey, let’s do this. I
need some money and some equipment up front.” On April 13,
Cuong texted Davis, asking if he had information on the bike, saying
he did not know much about it. He sent a phone number and texted
“hit me up” and “ask for Mike” (the name adopted and used by
Cuong). Davis called that number, reached a Big-O Tires store, and
spoke with Cuong. Davis recorded the call.
Cuong told Davis that Kevin had told him to contact Davis
regarding a bike, but that he (Cuong) did not know much about it.
Davis told Cuong he needed $400 and some “hardware for the bike,
some tools.” Davis asked Cuong if he knew what Davis was talking
about. Cuong said he did, he could come up with the money and the
equipment, and it would be easier for him to get the equipment than
Davis. Davis asked when Kevin wanted it done and Cuong said “the
sooner the better I would imagine,” and to give him a week. Cuong
told Davis not to talk with Vu, that she was Kevin’s ex and might
want to keep the bike. Davis told Cuong to let him know exactly
what kind of tools he was going to get to help Davis figure out what
he could do. Davis used the same code words with Cuong that he
used with Kevin to maintain the operation’s integrity and Lam’s
safety.
In a follow-up text the next day, Davis explained that he needed 10
percent of the money, which was $400 cash, and a gun, and that he
was going to “get rid of this guy.” Davis used explicit language
because Cuong had claimed only a “vague notion” during their
phone call about what was going on, and Davis wanted to be sure
Cuong knew what Kevin wanted done. Cuong responded: “What I
meant by not knowing, I do not know much info about the bike, like
whereabouts.” Davis responded: “[O]kay, cool, when can we meet
so I can get the cash and the tool.” Davis asked for the size of the
tool and whether there was a way Kevin wanted it dismantled.
Cuong responded that he had a “.32 ratchet” and a “762 long ass
breaker bar,” and he had no dismantling specifics. Davis understood
those references to mean a .32 caliber handgun and a rifle. Davis
asked for both, and Cuong replied: “[T]he ratchet was a sure one,”
and “pending on the breaker bar.”
On April 19, Davis texted Cuong asking when he would be in town.
Cuong responded “at least another week;” that he was trying to get
money. On April 26, Davis texted Cuong asking when they could
meet. Cuong responded, “[I]t’s still good;” he was trying to get
some money together, and thought he could come to San Jose that
Sunday. Davis responded that day was not good for him and asked if
the following Sunday would work. Cuong texted back “definitely,
bud, we will be in touch.”
Cuong texted Davis on May 11, “Hey, Richard, I was supposed to
be there this Sunday. Didn’t pan out.” He said he would be in San
Jose on May 22. On May 18 Davis confirmed by text message that
Cuong would be in San Jose on the 22d. On May 20, Cuong texted
that he had the tools and the cash and that a friend would deliver
them that Sunday. Davis called Cuong and told him he did not want
another party involved. They agreed to meet Memorial Day
weekend. Cuong told Davis, “everything’s ready,” he would be the
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one paying Davis, and “this is the last thing that I wanted to do, you
know what I mean?” Shortly after that call, Davis texted Cuong
trying to advance the meeting by one week. Over the next three
days, several text messages were exchanged, and the meeting was
rescheduled to early June.
Davis met Cuong at a Lowe’s parking lot in San Jose on June 5.
Cuong told Davis he could not get the breaker bar, but he had the
ratchet and the money. Cuong retrieved a shoe box and an envelope
from his trunk and gave them to Davis. They shook hands, and
Davis told Cuong he would let him know when the job was done.
The shoe box contained a semiautomatic hand gun with a loaded
magazine. The envelope contained $400 cash and a typed letter. The
letter informed Davis: “Here is all the info I have on the ‘bike’ [¶] Name: Peter Lam.” The letter contained Lam’s physical description
and personal information. It stated: “Dismantle as best you can.
Trying to prevent the bike from testifying.”
Another round of text messages was exchanged on June 14 in an
effort to lure Cuong to San Jose to be arrested. Davis texted Cuong
that he could not dismantle the bike with the ratchet because it was
too close, and that he needed the breaker bar to dismantle the bike in
the right way. Cuong responded “crap. My tool supplier is actually
locked up. That’s why it’s so hard to get the breaker bar the last
time.” Davis texted that he would let Cuong know when it was done.
Cuong texted that he was “real sorry about the tools,” and Davis
responded “no problem. I will handle it.” Davis asked Cuong to
meet him half way to show him a picture of the bike, not wanting
“to get rid of the wrong shit.” Cuong texted, “you don’t want to text
the pic, huh?” Davis texted that he was 99 percent sure it was the
right bike. Cuong responded that one of the kickstands on the bike
was broken, and Davis replied that he would handle it. Cuong was
arrested the next day in Orange County.
c. Communication between defendants—Kevin’s letters to
Cuong
While in custody in March 2011, Kevin handwrote a series of letters
to Cuong. Those letters were admitted into evidence by the
prosecution with no objection from either defendant. In the first
letter dated March 20, Kevin told Cuong four things: (1) “be strong
through this”; (2) “believe in each and every word I say”; (3) “I’ll
need all of you guys to pull through this . . .”; and (4) “Number 4
will be discussed later at the end.” Kevin asked Cuong to persuade
the Lam family to drop the charges. He concluded the letter:
“PLEASE HELP US OUT!!! I’M SCARED I’LL LOSE WITHOUT
YOU GUYS!!!” (Emphasis in original.) A copy of Davis’s March
13 letter to Kevin was attached, with the following written in
Kevin’s handwriting at the top of that letter: “THIS WILL BE
OPTION #4. SIMPLE TO UNDERSTAND. THROW AWAY
AFTER READING. THANKS.” (Emphasis in original.)
In an April 10 letter, Kevin wrote “I just got off the phone with you
when I started to write this letter.” Kevin referenced Davis’s letter.
He provided a physical description of Lam and a detailed
description of Lam’s car. He identified Lam’s neighborhood, high
school, and junior college. He also identified as witnesses Lam’s
sister and a 7-Eleven clerk. Kevin wrote, “So these are the key
players for Richard. [¶] I believe this was what was trying to be said
during our meet.”
In an April 12 letter Kevin wrote Cuong that Vu “knows the
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situation” and “had been informed to confirm [a] visual of Lam,”
and attorney “RICHARD Wilson is hireable [sic] with your
discretion.” (Emphasis in the original.) The letter continued, “If I
stand trial and no one can testify against me, basically I win. From
my understanding victim doesn’t have anything to say so jury can
only listen to me. A private attorney can by [sic] time.” Kevin
suggested that Cuong find Lam and have a “heart to heart” with
Lam’s family to drop the charges. The letter concluded: “Richard is
Super Spectacular as an attorney. He might be able to help. Look up
online at cases and how they are won with plaintiffs and witnesses
not wanting to testify . . . . Take care and keep your head up.
Richard has visual confirmation with me on primary basis. He may
have tracked my case’s key already. Between me and him he has
discovered a [F]acebook with a visual confirm. I will write to him
and notify him of taking on my case as an attorney so he knows you
will . . . get a hold of him.”
Kevin wrote Cuong on April 23, referencing “Super Solarium” and
asking Cuong to be selective on which attorney to hire because
“[d]ifferent attorneys have different defense routes.” Kevin
concluded: “[M]y hands are tied and I pretty much have to rely on
outside members to make some decisions for me.”
In a May 15 letter, Kevin mentioned the advice of a jail inmate who
received a good deal because of a witness’s lack of credibility.
Kevin wrote, “we need to find a way to discredit the victim. Make
him look like a really bad person. Find a weakness, aka, ‘kiddie
stuff,’ weapons, drugs, anything that would put him in here.” Kevin
explained how to locate Lam’s home using the internet. The letter
concluded: “If things don’t look to [sic] favorable within the next
month or two, I will take some irrational choices. I feel I really have
a 20% chance of ‘getting out.’ I ‘found a hole’ in my case I might
use. I have my son I want to get back too. So if options are out I will
attempt my last choice. Just to let you know.”
In an undated letter postmarked June 1, Kevin laid out a plan to
discredit Lam. The letter opened: “So this is the plan. It’s less
chance of leaving a bad trail. It will be to discredit the main part of
my case. The primary concern will have very nasty charges on hand.
Drugs, firearm, possibly kiddie stuff. This is for leverage.” The
letter continued: “The first step is already done and the next will
require a G to get going. This is for supply purchasing. This is where
it will get complicated. Because timing is crucial we will need to
have the finances ready on the fly. You will be contacted to meet but
I know you are of far distances. I do not know if you can make a
drive up if you are contacted. Therefore, a drop might have to be
made before hand. I will have the details cleared up before I see
you.”
The last letter, dated June 6 (the day after Cuong delivered the
money and gun to Davis) and postmarked June 9, explained that a
friend will be contacting Cuong asking for a $1,300 Western Union
money gram, and that Cuong will need to send another money gram
for $1,000 once Lam is in custody.
B. CUONG’S CASE
1. Cuong’s Testimony
Cuong is five years older than Kevin. They had a falling out over
their mother’s care when Kevin moved from Orange County to San
Jose in 2007. Thereafter, they saw each other only twice before
Kevin’s kidnapping arrest—at their mother’s funeral in 2009 and at
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Thanksgiving in 2010. In January 2011, Cuong learned of Kevin’s
arrest and reached out to him by letter. He wrote: “When I learned of
what happened to you, I cried as I drove home from work. I still
can’t believe all this is happening. . . . I miss you and love you very
much. You will always have a place in my heart. I will visit as often
as I’m allowed to. [¶] I will help out as much as I can. [¶] You will
always be loved. . . . Take care, I love you brother.” Cuong visited
Kevin in jail in February and April. Those visits occurred by
telephone through a glass barrier. The April 11 visit was recorded
and admitted into evidence. Kevin called Cuong several times from
jail. Cuong moved into evidence a series of recorded calls between
March 19 and May 28. Cuong recalled speaking with Kevin in
February, but no evidence was presented that those calls were
recorded. On March 19, Kevin told Cuong he had sent Vu a letter.
He also was sending Cuong a letter but that letter would trail Vu’s
letter. Kevin asked Cuong to read his letter carefully, that “there’s
basically two last hopes on this.” On March 21, Kevin told Cuong
he would know what was going on after he got “your end” and Vu
received “the other side of it,” and to call Vu and tell her it would be
“an easier joint effort.” Kevin said that Vu would have a better
understanding of the letter and Cuong understood that Vu would
have information for him. On March 27, Kevin pressed Cuong that it
was important that he speak with Vu.
On April 2, Cuong told Kevin that he and Vu had received their
letters. Kevin said he sent Vu more information, and he conveyed
that Vu would be able to explain his letter. Cuong testified that his
letter—the March 20 letter—was not clear and he did not understand
what he was supposed to do with the information in that letter. He
thought that Davis’s March 13 letter had no relevance to his letter,
and he did not know why it was included. Cuong understood his
letter to be asking for him to reach out to the Lam family so Lam
would drop the kidnapping case.
On April 9, Kevin asked Cuong to confirm that Vu had received a
packet containing three sealed envelopes. Cuong testified that he
followed up with Vu regarding the envelopes. Cuong was trying to
hire a private attorney for Kevin, and he testified that his comment
to Kevin that he did not need anything from him referred to anything
an attorney might need. On April 10 Cuong travelled to San Jose to
visit Kevin and meet Vu. Kevin asked Cuong during that visit,
“Anything else you need to know?” Cuong answered “[n]o.” Cuong
testified that he understood Kevin’s question to be referencing the
March 20 letter and, although he said no, at the same time he
mouthed “What” and hand gestured to Kevin to convey “What are
you saying?”
That evening Cuong received a call from Kevin while he was in his
motel room waiting for Vu. Kevin told Cuong that his letter to Vu
was more detailed. Although Vu met Cuong with “a bundle of
paperwork” and Cuong’s first words to Kevin when Kevin called
again that night were,“Hey, I got everything dude,” Cuong testified
that Kevin’s letter to Vu was very apologetic, and nothing in the
letter was directed at him. Cuong could not remember what Kevin
meant on that call when Kevin said that he had written a letter “for
both you guys to read.”
Cuong testified that Vu had a copy of Davis’s letter, and they
initially thought it was a request to do motorcycle repair work.
According to Cuong, Vu told him she had been exchanging phone
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calls and text messages with a man named Richard and that Kevin
had asked her to drive Richard to Al’s house for firearms to plant on
Lam. Cuong and Vu discussed the letter and together concluded that
it related to that plan. Cuong then understood “tools” to mean
“firearms,” and that “getting rid of the one I showed you” meant
having Lam arrested. He texted Davis the next day to implement
that plan.
Kevin called Cuong the following evening asking if he needed any
particular information. Cuong responded “car” because he wanted
information on where to plant the firearms. Cuong testified that
Kevin’s comment on that call—that Vu would be able “to verify
[¶] . . . [¶] [f]or visual purposes”—was a reference to Lam’s car.
2. Vu’s Testimony
Vu testified that in January 2011 Kevin had been her boyfriend for
almost four years and they were on the verge of breaking up. She
had met Lam, whom she liked, and she took that new relationship
“to another level.”
On April 10, Vu and Cuong read her letter from Kevin in the motel
room. She did not keep the letter, but she remembered it being
apologetic. She did not remember if Cuong showed her a letter or
whether they compared letters. She did not recall getting a letter
from Kevin with a note from Richard (Officer Davis). She testified
that Richard called her a couple of times in February. He told her
that he owed Kevin a favor but he was not specific about what he
wanted. After meeting with Cuong in the motel room and at
Cuong’s request, Vu texted Richard asking that he meet with Cuong.
3. Impeachment Evidence Regarding Officer Davis
Officer Davis’s ex-girlfriend testified regarding a fight she and
Davis had in 2007 driving home from a bar after a night of heavy
drinking. The two were arguing and Davis restrained her from
getting out of the car. Davis held her arm and head. He also twisted
her arm behind her back once they were home, and she called the
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People v. Tran, No. H038262, 2016 Cal. App. Unpub. LEXIS 5799, at **1−23 (Cal. Ct. App.

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Aug. 5, 2016) (footnote omitted).

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DISCUSSION
A.

Standard of Review
This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in

custody pursuant to the judgment of a State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
The writ may not be granted with respect to any claim that was adjudicated on the merits in

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state court unless the state court’s adjudication of the claim: “(1) resulted in a decision that was

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contrary to, or involved an unreasonable application of, clearly established Federal law, as

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determined by the Supreme Court of the United States; or (2) resulted in a decision that was based

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on an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” Id. § 2254(d).
“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court

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arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if

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the state court decides a case differently than [the] Court has on a set of materially

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indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000). “Under the

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‘reasonable application clause,’ a federal habeas court may grant the writ if the state court

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identifies the correct governing legal principle from [the] Court’s decisions but unreasonably
applies that principle to the facts of the prisoner’s case.” Id. at 413.
“[A] federal habeas court may not issue the writ simply because the court concludes in its
independent judgment that the relevant state-court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. A

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Northern District of California

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federal habeas court making the “unreasonable application” inquiry should ask whether the state

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court’s application of clearly established federal law was “objectively unreasonable.” Id. at 409.
The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is

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in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court
decision. Id. at 412; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). While circuit law
may be “persuasive authority” for purposes of determining whether a state court decision is an

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unreasonable application of Supreme Court precedent, only the Supreme Court’s holdings are

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binding on the state courts and only those holdings need be “reasonably” applied. Id.

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B.

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Claims & Analysis
Petitioner seeks federal habeas relief under 28 U.S.C. § 2254 on the following claims:

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(1) insufficient evidence that Petitioner harbored the specific intent to kill; (2) Petitioner was

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denied the right to a fair trial because his case was jointly tried with the co-defendant; and

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(3) Petitioner’s sentence constitutes cruel and unusual punishment. The claims are without merit.

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1. Insufficient Evidence

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Petitioner claims that there is insufficient evidence to sustain his conviction of conspiracy

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to commit murder. Specifically, he alleges the “prosecution failed to prove [Petitioner] was ‘one

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of the participants who harbored the specific intent to kill.’” Pet. at 21 (quoting People v.

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Petznick, 114 Cal. App. 4th 663, 680-681 (2003)).

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Federal habeas corpus relief is available to a prisoner who claims that the evidence was
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insufficient to support his state conviction only where, considering the trial record in the light

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most favorable to the prosecution, “no rational trier of fact could have found proof of guilt beyond

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a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 (1979). This standard is applied with

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reference to the substantive elements of the criminal offense as defined by state law. Id.

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at 324 n.16; Sarausad v. Porter, 479 F.3d 671, 678–79 (9th Cir. 2007).

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Northern District of California

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If confronted by a record that supports conflicting inferences, a federal habeas court “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.” Jackson, 443 U.S.
at 326. A jury’s credibility determinations are therefore entitled to near-total deference. Bruce v.
Terhune, 376 F.3d 950, 957 (9th Cir. 2004). After all, “it is the responsibility of the jury—not the
court—to decide what conclusions should be drawn from evidence admitted at trial.” Parker v.
Matthews, 567 U.S. 37, 43 (2012) (citation and internal quotation marks omitted).
Under 28 U.S.C. § 2254(d), a federal habeas court applies the standard of Jackson with an
additional layer of deference. Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). A federal
habeas court must ask whether the operative state court decision reflected an “unreasonable
application of” Jackson to the facts of the case. Id. at 1275.
Under California law, “[a] conviction of conspiracy requires proof that the defendant and

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another person had the specific intent to agree or conspire to commit an offense, as well as the

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specific intent to commit the elements of that offense . . . .” People v. Jurado, 38 Cal. 4th 1223,

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1228 (1998) (emphasis added). Thus, for conspiracy to commit murder, the participants must

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agree to commit that offense and possess the specific intent to kill. People v. Cortez, 18 Cal. 4th

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1223, 1228 (1998). To prove a conspiracy, it is sufficient if the evidence directly or

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circumstantially shows “the parties positively or tacitly came to a mutual understanding to

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accomplish the act and unlawful design.” People v. Vu, 143 Cal. App. 4th 1009, 1025 (2006).

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Factors bearing on this issue include “the conduct, relationship, interest, and activities of the

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alleged conspirators before and during the alleged conspiracy.” People v. Rodrigues, 8 Cal. 4th

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1060, 1135 (1994).

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Petitioner does not dispute that the record supplies ample evidence of the “intent to agree
or conspire,” conceding that he “knew he was breaking the law when he agreed to help his
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brother.” Pet. at 21. But Petitioner disputes that he possessed the specific intent to kill Peter Lam,

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arguing instead that his intent was to “plant evidence in an effort to discredit Lam, [thereby]

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helping his brother obtain a more favorable disposition of his criminal case.” Id. at 22. Petitioner

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contends that “[t]he record contains no evidence [Petitioner] understood the phrase ‘dismantling a

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bike’ to be code for murdering Peter Lam,” and therefore it is “pure speculation” that Petitioner

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United States District Court
Northern District of California

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shared his brother’s intent to kill Lam.” Id. at 20.
The California Court of Appeal rejected Petitioner’s claim that there was insufficient
evidence to support a finding that he specifically intended to kill Lam. When “[v]iewed in a light
most favorable to the jury’s verdict,” the court found that “substantial evidence supports the jury’s
finding that [Petitioner] agreed with Kevin to have Officer Davis kill Lam.” Tran, 2016 Cal. App.
Unpub. LEXIS 5799, at *44. The court elaborated:
Cuong’s intent to kill is corroborated by his ongoing
communications with Davis. After their April 13 phone call when
Cuong told Davis that his knowledge about the bike was vague,
Davis followed up with a blunt text: “[H]ey, you said you don’t
know much about this, but I need $400 cash and a gun. [¶] . . . [¶]
When I get rid of this guy, I am gonna need the rest of the cash.”
Cuong responded: “What I mean by not knowing, I do not know
much info about the bike, like whereabouts.” Cuong understood the
plan was for Davis to “get rid of” Lam, and he never indicated to
Davis that he understood “get[ting] rid” of Lam to mean planting a
firearm on him. Before contacting Davis, Cuong had received
Kevin's letter incorporating Davis’s letter as “Option 4,” and Davis’s
letter also spoke about “get[ting] rid of” Lam, not planting evidence.
Cuong delivered a handgun, loaded magazine, and $400 to Davis. In
a follow-up text message exchange, he expressed no confusion or
ignorance when Davis asked him for a rifle because he could not
“dismantle” Lam at close range. The jury could have inferred from
Cuong’s actions that he understood “dismantle” to mean “kill.”
Id. at *44–45.
The California Court of Appeal’s determination that sufficient evidence supports the jury’s
finding that Petitioner agreed with Kevin to have Davis kill Lam was not an objectively
unreasonable application of Jackson to the facts of the case. See Juan H., 408 F.3d at 1275.
Viewed in a light most favorable to the prosecution, it simply cannot be said that no rational trier
of fact could have found, beyond a reasonable doubt, that Petitioner possessed the specific intent

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to kill Peter Lam. See Jackson, 443 U.S. at 324. Petitioner is not entitled to federal habeas relief

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on his insufficient evidence claim. See 28 U.S.C. § 2254(d).

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2. Misjoinder/Failure to Sever
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Petitioner claims that he was denied his due process right to a fair trial by having a joint

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trial with his brother and co-conspirator, Kevin Tran. Pet. at 35. Specifically, Petitioner argues

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that a joint trial was grossly unfair because the jury heard “highly prejudicial” and “inflammatory”

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evidence of Kevin’s crimes that resulted in the jury judging Petitioner “for the actions of his

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brother,” rather than solely on evidence of his own guilt or innocence. Id. at 42–43.

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United States District Court
Northern District of California

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A state trial court’s refusal to sever charges will give rise to a federal constitutional
violation only if the “simultaneous trial of more than one offense . . . actually render[ed]
petitioner’s state trial fundamentally unfair and hence, violative of due process.” Davis v.
Woodford, 384 F.3d 628, 638 (9th Cir. 2004). To prevail, the petitioner must demonstrate that the
state court’s joinder or denial of his severance motion resulted in prejudice great enough to render
his trial fundamentally unfair, Grisby v. Blodgett, 130 F.3d 365, 370 (9th Cir. 1997), and that the
impermissible joinder had a substantial and injurious effect or influence in determining the jury's
verdict, Sandoval v. Calderon, 241 F.3d 765, 772 (9th Cir. 2000).
There is a risk of undue prejudice whenever joinder of counts allows evidence of other
crimes to be introduced in a trial of charges with respect to which the evidence would otherwise be
inadmissible. United States v. Lewis, 787 F.2d 1318, 1322 (9th Cir. 1986). This risk is especially
great when the prosecutor encourages the jury to consider two sets of charges in concert and the

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evidence of one crime is substantially weaker than the evidence of the other crime. Bean v.

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Calderon, 163 F.3d 1073, 1084–85 (9th Cir. 1998). But joinder generally does not result in

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prejudice sufficient to render a trial fundamentally unfair if the evidence of each crime is simple

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and distinct (even if the evidence is not cross admissible), and the jury is properly instructed so

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that it may compartmentalize the evidence. Id. at 1085–86.

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Here, the trial court denied Petitioner’s pretrial motion to sever his trial from Kevin’s,

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ruling that “a substantial amount of evidence would be cross-admissible, that the evidence in both

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cases was substantial, that neither case was unduly inflammatory, and that there was not a

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substantial danger of jury confusion.” Tran, 2016 Cal. App. Unpub. LEXIS 5799, at *46–47.

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Petitioner does not argue the trial court abused its discretion in finding joinder proper in its pretrial

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ruling; rather, he contends that the “actual impact of joinder at trial” was so grossly unfair that his

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due process rights were denied. Pet. at 35.
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The California Court of Appeal rejected Petitioner’s claim, determining that there was no

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suggestion during the trial that Petitioner “was involved in or condoned Kevin’s conduct,” or that

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Kevin’s conduct during the kidnapping placed “moral culpability” on Petitioner. Tran, 2016 Cal.

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App. Unpub. LEXIS 5799, at *49. The court also noted that the jury was instructed to “separately

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consider the evidence as it applies to each defendant” and to “decide each charge for each

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Northern District of California

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defendant separately.” Id.
The California Court of Appeal’s rejection of Petitioner’s claim cannot be said to be
contrary to, or an unreasonable application of, clearly established Supreme Court precedent, or
based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). Kevin’s
kidnapping of Lam took place before Petitioner learned of the kidnapping and began to conspire
with Kevin (and Davis) to kill Lam. The evidence of Kevin’s kidnapping of Peter Lam—which
Petitioner maintains prejudiced the jury against him—therefore is “simple and distinct” from the
evidence of Petitioner’s conspiring with Kevin (and Davis) to kill Lam. See Calderon, 163 F.3d
at 1085. Furthermore, the jury was properly instructed to separately consider the evidence as to
each defendant, and jurors are presumed to follow the court’s instructions. See Richardson v.
Marsh, 481 U.S. 200, 206 (1987). Petitioner is not entitled to federal habeas relief on his
misjoinder/failure to sever claim. See 28 U.S.C. § 2254(d); see also Runningeagle v. Ryan, 686

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F.3d 758, 776–77 (9th Cir. 2012) (noting that there does not appear to be any clearly established

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Supreme Court precedent requiring severance of criminal trials in state court sufficient to support

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a habeas challenge under § 2254).

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3. Cruel and Unusual Punishment
Petitioner was sentenced to 25-years-to-life for his part in a conspiracy to commit murder.

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He claims this sentence was a cruel and unusual punishment, violating his rights established by the

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Eighth Amendment. Pet. at 66–67.

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The Eighth Amendment prohibits criminal sentences that are disproportionate to the

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severity of the crime. Solem v. Helm, 463 U.S. 277, 284 (1983) (“[The Eighth Amendment]

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prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime

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committed.”). But the Eighth Amendment “forbids only extreme sentences that are ‘grossly

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disproportionate’ to the crime.” Ewing v. California, 538 U.S. 11, 23 (2003). A sentence will be
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found grossly disproportionate only in “exceedingly rare” and “extreme” cases. Lockyer v

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Andrade, 538 US 63, 73 (2003).

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Petitioner emphasizes that his participation in this crime was an “aberration” from an

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otherwise law-abiding life. Pet. at 68, 76. He characterizes his involvement as someone who had

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“lived his life as a productive and contributing member of society” until led astray by a desire to

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Northern District of California

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help his brother. Id. at 77. Additionally, he argues that the involvement of an undercover police
officer, Davis, ensured that Peter Lam was never in actual danger. Id. at 75.
The California Court of Appeal determined that the sentence was proportionate to the
gravity of the crime, noting that Petitioner is “a mature, capable adult who knowingly agreed to
help his brother kill a witness” and who “provided a stolen gun to someone he thought was a hit
man.” Tran, 2016 Cal. App. Unpub. LEXIS 5799, at *54. It further noted that Petitioner
“demonstrated sophistication and active involvement in the conspiracy,” and took steps to
“undermine the justice system” by “sacrific[ing] another man’s life to thwart his brother’s
kidnapping prosecution.” Id. Ultimately, the court concluded that given the nature of the crime,
Petitioner’s sentence was “not grossly disproportionate” under the Eighth Amendment. Id.
The California Court of Appeal’s rejection of Petitioner’s cruel and unusual punishment
claim was not contrary to, or an unreasonable application of, the “grossly disproportionate”

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standard set forth by the Supreme Court. Cf. Harmelin v. Michigan, 501 U.S. 957, 996 (1991)

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(upholding sentence of life without possibility of parole for first offense of possession of 672

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grams of cocaine). Petitioner played a central role in the conspiracy. Kevin Tran was behind bars,

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and the conspiracy required Petitioner’s active involvement to come to fruition. In the course of

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his involvement, Petitioner provided a handgun, ammunition and money to someone he believed

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was a hit man. His tangible actions were aimed at subverting the justice system by eliminating a

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key witness. Petitioner is not entitled to federal habeas relief on his cruel and unusual punishment

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claim. See 28 U.S.C. § 2254(d).

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CONCLUSION

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For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. And

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pursuant to Rule 11 of the Rules Governing Section 2254 Cases, a certificate of appealability

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(COA) under 28 U.S.C. § 2253(c) is DENIED because it cannot be said that “reasonable jurists
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would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack

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v. McDaniel, 529 U.S. 473, 484 (2000).

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IT IS SO ORDERED.
Dated: August 9, 2018
______________________________________
CHARLES R. BREYER
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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CUONG QUOC TRAN,

Case No. 3:18-cv-00626-CRB

Plaintiff,
v.

CERTIFICATE OF SERVICE

JOSIE GASTELO,
Defendant.

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

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That on August 9, 2018, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Cuong Quoc Tran ID: A-L3711
P.O. Box 8101
San Luis Obispo, CA 93409-8101

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Dated: August 9, 2018
Susan Y. Soong
Clerk, United States District Court

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By:________________________
Lashanda Scott, Deputy Clerk to the
Honorable CHARLES R. BREYER

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