Dich v. Jacquez, No. CIV S-10-0172 GEB EFB P

JOHN VAI DICH, Petitioner,

v.FRANCISCO JACQUEZ, Respondent.

No. CIV S-10-0172 GEB EFB P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: April 5, 2012

FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a 2006 judgment of conviction entered against him in the Sacramento County Superior Court on a charge of first degree murder with use of a firearm. He seeks relief on the grounds that: (1) jury instruction error violated his right to due process; (2) the trial court violated his right to due process when it improperly refused to admit certain statements into evidence; and (3) the trial court's response to a jury question violated his constitutional rights. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

I. Factual Background¹

On a December night just before Christmas, Matthew Seivert was lured to Tahoe Park in Sacramento by his ex-girlfriend, Nicole Carroll. As the couple talked on a park bench, a group of 12 youths in three separate cars waited stealthily to attack him. When Seivert got into his car and attempted to leave, the youths blocked his exit and one of them shot him to death.

Carroll and four members of the group were charged with murder. Six other youths, who were granted immunity, testified at the trial, during which the jury heard evidence of a conspiracy to "jump" Seivert because he had made racial slurs about Asians. The jury found all five defendants guilty of first degree murder (Pen.Code, § 187, subd. (a))² and found true the special circumstance that the shooter, defendant Hung Thieu Ly, committed the murder while lying in wait (§ 190.2, subd. (a)(15)) (hereafter section 190.2(a)(15)).

Ly and his four convicted accomplices - Nicole Carroll, Jimmy Chi Cooc, John Dich and Chan Venh ("John") Lam - appeal. Their arguments include erroneous jury instructions, error in admission and exclusion of evidence, prosecutorial misconduct, and the sufficiency of the evidence to support the verdict. We find no prejudicial error. With the exception of a minor sentencing correction as to defendant Ly, we shall affirm all five judgments.

FACTUAL BACKGROUND

The shooting

On December 23, 2003, 19-year-old Matthew Seivert was living with his mother, Stepheny Milo, at her home in East Sacramento. Seivert and Carroll had been high school sweethearts, but they broke up when Carroll moved to Los Angeles in 2001. Around 8:00 p.m., Carroll called for Seivert, but he was not home. Seivert received a second call shortly before midnight, after which he asked his mother if he could borrow her Toyota Camry so he could "see Nicole." Although Milo initially refused, she finally relented and let her son borrow the car.

Around 1:45 a.m., Sacramento City Police Officer Barry Lee went to Tahoe Park in response to a report of shots fired. Lee drove around the park, but saw nothing. At 2:20 a.m., Lee returned to alocation on Eighth Avenue, very close to the park, and discovered the Camry, which had crashed up against a chain link fence. Seivert, unconscious and incoherent, was transported by ambulance from the Camry to the hospital.

Seivert suffered two gunshot wounds, one to the left side of the head and another to the right chest. He also suffered lacerations and abrasions, consistent with having been struck by flying glass. Seivert died from his wounds.

Three bullet jackets from a .38-caliber Charter Arms revolver were recovered from the Camry. There was possible bullet damage to the front driver's-side window, the rear driver's-side window and the rear window. A detective who inspected the Camry opined that gunshots had pierced each of the three windows.

The plot

Six immunized witnesses - Quoc Lam,³ Sieu Nguyen, Johnson Phan, Dac Su, Davis To and Damon Voong - testified about a meeting that took place at Voong's house on the evening of December 23, during which the plan was hatched to attack Seivert at Tahoe Park. Sometimes their versions coincided; often their testimony conflicted not only with each other, but with the same witness's prior statements. In accordance with settled principles (People v. Sotomayor (1996) 47 Cal.App.4th 382, 386, 54 Cal.Rptr.2d 871; Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 573-574] ), we recite the evidence in the light most favorable to the judgments.

John Lam, who was then dating Nicole Carroll, was angry with Seivert for making disparaging remarks about Asians in phone calls to Carroll, saying things like "fuck Asians" and referring to them as "Chinks." Lam devised a plan whereby Carroll would phone Seivert and ask him to meet her at Tahoe Park; Lam and his friends would drive to the park, wait for Seivert and then "jump" him or beat him up.

Lam called his cousin Quoc and told him about the plan to lure Seivert to the park and jump him. Quoc went to his house and got his nunchakus. He also had golf clubs in his trunk, which he thought could be used. Lam called his cousin Davis To and told him he wanted to "kick this white kid's ass" for making racial slurs. Lam's friends and relatives contacted others, until 11 young men arrived at Voong's house, where they met with Carroll and Lam. At the meeting were the five defendants - Carroll, Cooc, Dich, Lam and Ly - as well as the witnesses who testified under agrant of immunity.

At Voong's house, Lam brought up the subject of beating up the "white boy" to "teach him a lesson" about using racial slurs. Carroll said she wanted Seivert beaten up because she did not like him. Lam explained that Seivert would meet Carroll at Tahoe Park, that the group should wait for him to get out of his car and then jump him. Quoc intended to approach Seivert from behind, hit him a couple of times and smash his car with the nunchakus. Su intended to jump out of Quoc's car and beat Seivert up. There was some discussion at the house about Cooc and Ly having guns. However, killing or shooting Seivert was not explicitly discussed.

During the meeting at Voong's house, Carroll called Seivert. Later, after speaking on her cell phone, she told the group that Seivert had called and they should go to Tahoe Park. Lam told everyone "let's go" and instructed them to leave for the park. He told Quoc to meet him on the other side of the park and to block the Camry.

The group traveled to Tahoe Park in three separate vehicles. The table below⁴ shows the vehicles that were driven and their respective drivers and occupants.

Acura RSX

John Lam (driver)*

Nicole Carroll*

Honda Pilot

John Dich (driver)*

Jimmy Chi Cooc*

Hung Thieu Ly*

Johnson Phan

Sieu Nguyen

Damon Voong

Tommy Vu

Honda Accord

Quoc Lam (driver)

Dac Su

Davis To

Johnny Truong

*Defendants' names appear in boldface type.

As they drove to the park, Cooc and Dich had a conversation about a gun. Dich wanted to see Cooc's nine-millimeter gun, and it was passed around the Honda Pilot. Ly's .38-caliber revolver was also passed around. Ly tied a blue or black rag around his face that covered his nose and mouth.

The three cars split up when they got to the park. They waited about 15 minutes for Seivert to arrive. Carroll alerted them by phone that Seivert was on his way.

Seivert arrived at the park, got out of his Camry and approached Carroll, who was seated on a bench. The couple talked for a few minutes. Seivert reached for Carroll, but she pulled away. Seivert then returned to the Camry. Lam and Dich each said, "Let's go get him," or words to that effect. Because Seivert had backed into the parking space, someone in the Pilot said, "Block him out." Dich then drove the Pilot toward the driver's side of the Camry, parking at an angle. The Camry moved forward a little, but Lam's Acura RSX also pulled in front of the Camry, causing it to stop. The Camry was blocked in and had no room to leave. Quoc retrieved the nunchakus and Dac Su took out a golf club.

Ly got out of the Pilot and pulled a gun from his waistband. Cooc also got out of the car with his gun drawn. Vu threw a Heineken bottle, which hit the Camry. Ly stood in front of the Camry and pointed his gun at the front windshield saying, "Don't move" or "stop, stop, stop." Some witnesses thought Seivert revved the engine and the Camry may have moved forward a little.

Ly fired at least three shots at the Camry. The first shot was fired at the front windshield, the second shot from the driver's side door, and the third from behind the Camry by the trunk. The group then returned to their vehicles and drove back to Voong's house. On the way back, Ly exclaimed, "I got him in the head," or "I got him, I got him. He almost ran me over." Ly also said, "I did what I had to do," and "if he hadn't of moved I wouldn't have shot him. He almost ran me over."

Back at the house, Carroll smiled and said something to the effect of "Oh, well, I didn't like him anyways." About a week later, Lam called To and said he had spoken with a homicide detective and that he (To) should keep his story straight.

On January 10, 2004 (all further calendar references are to that year), about three weeks after the shooting, police recovered a loaded nine-millimeter semiautomatic firearm from Cooc's residence. Two days later, police recovered the .38-caliber revolver used to kill Seivert from Dich's residence.

Police recovered a box of .38-caliber live ammunition from Ly's home. The cartridges were loaded with soft-point, brass-jacketed Winchester .38 Special bullets - similar in all respects to the bullets fired into the Camry. They also found two bandanas, one dark navy blue and the other black.

Mobile phone records showed that defendants and the other participants placed numerous calls on their cell phones to one another throughout the late night and early morning hours of December 23 and 24, 2003. Carroll's cell phone records showed that she called Seivert's residence at 7:22

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