                                                                             FILED
                            NOT FOR PUBLICATION
                                                                             JUN 09 2016
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SARUN CHUN,                                      No. 13-16466

              Petitioner - Appellant,            D.C. No. 2:11-cv-01480-MCE-
                                                 EFB
 v.

RAUL LOPEZ, Warden,                              MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
              Morrison C. England, Jr., Chief District Judge, Presiding

                      Argued and Submitted October 20, 2015
                            San Francisco, California

Before: THOMAS, Chief Judge and REINHARDT and McKEOWN, Circuit
Judges.

      Sarun Chun was convicted of second-degree murder in the death of

Bounthavy Onethavong. Chun, who was 16 at the time of the shooting, was tried

as an adult and sentenced to 40 years to life in prison. The only explicit theory of

second-degree murder in the case was felony murder based on shooting at an


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
occupied motor vehicle either directly or as an aider and abetter. Chun appealed,

arguing that felony murder was inapplicable under the merger doctrine. He also

contended that improperly giving the jury the felony murder instruction allowed

the jury to convict him of second-degree murder without finding malice, an

element of the crime. The California Court of Appeal agreed and reversed Chun’s

murder conviction. People v. Chun, 155 Cal. App. 4th 170 (Ct. App. 2007). The

California Supreme Court also found that giving the erroneous instruction was

federal constitutional error, but concluded that it was harmless. People v. Chun,

203 P.3d 425, 443–46 (Cal. 2009). Chun sought a writ of habeas corpus from the

district court, which denied it. We reverse.

      On habeas review, we grant relief if we are convinced or have grave doubt

that a constitutional error “had substantial and injurious effect or influence in

determining the jury’s verdict.” O'Neal v. McAninch, 513 U.S. 432, 436 (1995)

(quoting Brecht v. Abrahamson, 507 U.S. 619, 627 (1993)). If a state court

adjudicates harmlessness on the merits, however, we cannot grant relief unless the

state court’s finding that the error was harmless beyond a reasonable doubt was

objectively unreasonable. See Davis v. Ayala, 135 S. Ct. 2187, 2198–99 (2015).

      We have grave doubt as to whether giving the erroneous instructions had a

substantial and injurious effect on the verdict. Moreover, we hold that the state


                                           2
court’s finding of harmlessness was objectively unreasonable. In brief, the jury

found that Chun was a gang member present at the scene of a gang shooting, but

that he did not fire a weapon.1 It thus almost certainly based its conviction on

Chun having aided and abetted the shooting. Not surprisingly, given the dearth of

evidence, the jury appears to have been so tightly deadlocked that after long

deliberations it returned an inconsistent verdict. In separate counts, the jury

acquitted Chun of the felonies of shooting at Onethavong’s vehicle, and firing from

a vehicle (or aiding or abetting those acts). Both acquittals are also inconsistent

with the second-degree murder conviction. The Supreme Court has noted that

when faced with inconsistent verdicts, the courts cannot know which one¯the

conviction or the acquittal¯“the jury ‘really meant.’” United States v. Powell, 469

U.S. 57, 68 (1984).

      In close cases like this courts are cautious about finding harmlessness:

      In all cases the constitutional safeguards are to be jealously preserved
      for the benefit of the accused, but especially is this true where the
      scales of justice may be delicately poised between guilt and
      innocence. Then error, which under some circumstances would not be
      ground for reversal, cannot be brushed aside as immaterial since there
      is a real chance that it might have provided the slight impetus which
      swung the scales toward guilt.


      1
        As part of the second-degree murder conviction, the jury found “not true”
the special circumstance that Chun had “personally and intentionally discharged a
firearm proximately causing great bodily injury or death.”
                                           3
Glasser v. United States, 315 U.S. 60, 67 (1942) (recognized as superseded on

other grounds by Bourjaily v. United States, 483 U.S. 171, 181 (1987)); see also

Strickland v. Washington, 466 U.S. 668, 696 (1984) (“[A] verdict . . . only weakly

supported by the record is more likely to have been affected by errors . . . .”). As

we recently recognized, the Supreme Court’s analysis in Glasser and Strickland

still binds all fairminded jurists. See Parle v. Runnels, 505 F.3d 922, 928 & n.7

(9th Cir. 2007).

      Moreover, even assuming the second-degree murder conviction was the

verdict the jury “meant,” we need to know, at least broadly, what the jury thought

Chun did to aid and abet before we can evaluate the effect of the incorrect

instruction. There was no evidence as to how Chun aided or abetted the crime,2 and




      2
         It is worth noting that we have held that California courts were
unreasonable under 28 U.S.C. § 2254(d)(1) in affirming an aiding and abetting
conviction under similar facts. See Juan H. v. Allen, 408 F.3d 1262 (9th Cir.
2005). In that case, a 15 year old defendant and his brother were gang members.
Id. The defendant stood behind his brother as the brother shot and killed a member
of a rival gang. There was no evidence that the defendant said or did anything to
encourage or help his brother. Id. at 1266-67. We held this evidence was not
sufficient to support either the act element or the mens rea of aiding and abetting
murder. Id. at 1277-79.
                                          4
the jury expressly found that Chin did not fire a weapon.3 Therefore we are left

with nearly total doubt about the effect of the error. This doubt is reinforced by the

real possibility, given the inconsistent verdicts, that the jury convicted through

“mistake [or] compromise,” in which case proper instructions could easily have

swayed the outcome. See Powell, 469 U.S. at 65. This is precisely the kind of case

to which O’Neal’s “grave doubt” holding is meant to apply.

      We also find the state court’s harmlessness decision objectively

unreasonable within the meaning of section 2254(d)(1). No fair minded jurist

would conclude that it was correct to find the error harmless beyond a reasonable

doubt, given the total absence of evidence of what Chun did to aid and abet and our

resulting inability to assess the effect of the instructional error which permitted the

jury to convict Chun absent a showing of malice. Reasonable doubt is the strictest

standard consistent with reasoned decision-making. It is “the very high level of

probability required by the Constitution” before depriving a person of liberty.

Victor v. Nebraska, 511 U.S. 1, 14 (1994). Any doubts must be so attenuated that a

reasonable person would “not hesitate” to dismiss them. Id at 21. Given the


      3
        The State suggests that Chun’s statements while in detention help prove
that he aided and abetted the shooting. Even if the statements were probative, they
were admitted for the limited purpose of showing Chun’s gang membership. They
were expressly not to be considered for anything else, including as evidence of
Chun’s intent at the time of the shooting.
                                           5
degree of certainty required, the state court was objectively unreasonable in

concluding that the error was harmless beyond a reasonable doubt.4

      The district court is directed to issue the writ ordering the State to retry Chun

within a reasonable time or to release him.

REVERSED.




      4
        Chun also asserts that although inconsistent verdicts are tolerated, the state
court applied Chapman in an objectively unreasonable manner when it inferred
from the inconsistent verdicts that the jury believed Chun had participated in the
shooting, despite the fact that when looking at inconsistent verdicts, courts cannot
know which one the jury actually meant. Powell, 469 U.S. at 65–68. Because we
grant relief, we need not decide this question, nor address Chun’s other claims.


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