                                                                              FILED
                           NOT FOR PUBLICATION                                APR 06 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


LEN NGUYEN,                                      No. 11-16611

              Petitioner - Appellant,            D.C. No. 2:03-cv-02381-MCE-
                                                 GGH
  v.

M. KNOWLES, Warden and ATTORNEY                  MEMORANDUM*
GENERAL FOR THE STATE OF
CALIFORNIA,

              Respondents - Appellees.


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

                      Argued and Submitted March 12, 2012
                           San Francisco, California

Before: NOONAN, McKEOWN, and M. SMITH, Circuit Judges.

       Len Nguyen appeals the district court’s denial of his 28 U.S.C. § 2254

habeas petition challenging his jury convictions for murder and attempted murder.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      We review de novo the district court’s denial of Nguyen’s habeas petition

and review findings of fact for clear error. Brown v. Ornoski, 503 F.3d 1006, 1010

(9th Cir. 2007). Because Nguyen filed his federal habeas petition after 1996, the

Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs his petition.

Id.; see also 28 U.S.C. § 2254(d). The AEDPA requires that appellate courts defer

to the last reasoned state court decision. Id. “For purposes of § 2254(d)(1), ‘an

unreasonable application of federal law is different from an incorrect application

of federal law.’” Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (citation

omitted). A state court’s determination of the facts is “unreasonable” under

§ 2254(d)(2) only if the appellate court is “convinced that an appellate panel,

applying normal standards of appellate review, could not reasonably conclude that

the finding is supported by the record [before the state court].” Taylor v. Maddox,

366 F.3d 992, 1000 (9th Cir. 2004).

      Nguyen does not dispute the facts that were before the state appellate court,

but rather that court’s interpretation of those facts in light of the standards imposed

by Johnson v. Virginia, 443 U.S. 307 (1979). The Supreme Court in Johnson

clarified that an applicant “is entitled to habeas corpus relief if it is found that upon

the record evidence adduced at trial no rational trier of fact could have found proof

beyond a reasonable doubt.” Id. at 324. If the record supports conflicting


                                            2
inferences, the reviewing 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.” Id. at 326. The district court

held that the state appellate court did not err in finding sufficient evidence to

support Nguyen’s convictions, and we agree.

      Nguyen cannot show that the facts before the state court do not support his

convictions, and he fails to meet his burden to show that any conflicting inferences

reached by the trier of fact were outside the range of what a reasonable juror could

conclude. Conferring the night before and the day of the murder, Nguyen and his

three co-defendants planned the attack on Andy Tran and intentionally carried out

the assault. The quickness with which the murder occurred after Nguyen and his

co-defendants entered the residence also supports the state appellate court’s finding

of sufficient evidence. The speed and efficacy with which the gun was produced

and Tran was shot was a critical fact and supports the state court’s determination

that a jury could have reasonably concluded that Nguyen and his co-defendants

intended to shoot and kill Tran upon entering the home.

      Simply because it was possible that Nguyen intended only to aid and abet an

assault does not demonstrate insufficient evidence to support the jury’s conclusion

that Nguyen intended to aid and abet a home invasion murder or an assault with a


                                           3
deadly weapon. Because Nguyen elicited the help of three others in “another

round of combat” and Nguyen’s gang membership could be inferred from the

evidence presented at trial, the jury was entitled to infer that Nguyen intended to

aid and abet a crime that posed the risk of serious bodily injury or death. See

People v. Medina, 209 P.3d 105, 111 (Cal. 2009) (shooting during gang-related

fistfight was natural and probable consequence of gang assault).

      Similar evidence supported the state appellate court’s finding that there was

sufficient evidence to affirm Nguyen’s conviction for attempted murder. The jury

could have reasonably concluded from the fact that Nguyen and the other

defendants proceeded with their planned attack despite others being present, that

the “kill zone” was the natural and probable consequence of the premeditated

murder of Tran in a crowded room. Even if this conclusion is debatable, the

AEDPA requires that the state court decision be “objectively unreasonable.”

See Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (“[A] federal court may not overturn a

state court decision rejecting a sufficiency of evidence challenge simply because

the federal court disagrees with the state court.”). Nguyen does not make such a

showing.

      Nguyen also challenges the trial court’s failure to sua sponte instruct the jury

regarding the “target offense” that Nguyen may have aided and abetted. However,


                                          4
to establish a federal constitutional claim, Nguyen must establish that the error

involved “fundamental fairness.” Estelle v. McGuire, 502 U.S. 62, 73 (1981). The

state appellate court held that any error resulting from the failure to instruct the

jury regarding the target offense was harmless because “there was no risk that the

jury relied on noncriminal behavior as the target offense.” We agree.

      Where there is no evidence that a defendant aided and abetted any

noncriminal behavior which led, as a natural and probable consequence, to murder,

there is no reasonable likelihood that the jury applied the instructions in a way that

violates the Constitution. Solis v. Garcia, 219 F.3d 922, 928 (9th Cir. 2000). Even

if the jury had relied on “gang retaliation” as the target offense, such an attack

would have been a criminal act, i.e., an assault. And with respect to the type of

assault at issue—one in which Nguyen and three others coordinated to engage Tran

“in another round of combat”—it was not objectively unreasonable for the jury to

conclude that murder and attempted murder were natural and probable

consequences. See People v. Prettyman, 926 P.2d 1013, 1028 (Cal. 1996)

(harmless error where no evidence of any other possible “target” apart from

assault, an act that was indisputably criminal). Consequently, any error was

harmless and did not amount to a due process violation.

      AFFIRMED.


                                           5
                                                                                 FILED
Nguyen v. Knowles, No. 11-16611                                                  APR 06 2012

                                                                           MOLLY C. DWYER, CLERK
NOONAN, Circuit Judge, dissenting:                                             U.S. COURT OF APPEALS




      Really the only evidence to which the majority points to support its

conclusion is the speed with which the shooting of Andy was accomplished.

Could a reasonable juror infer from that fact that Len had beyond a reasonable

doubt the intention to abet the shooting? That the two boys had had a fight; that

Len had recruited help to get back at Andy; that Len and his friends conferred; that

his friends had a gun and access to a supply of guns; that his friends waited for

him; that they fled together – none of these facts proves or tends to prove Len

guilty of murder in the first degree.

      That Len himself was a gang member was not proved, and in oral argument

to us the state declared that there was “no direct evidence of such membership,”

but that it “could be inferred” that Len was at least “associated” with gang

members. The state referred to Nhat and Si's interrogations and Ahn Phan's

statement that "Si's friends were members of MAC" to support this inference. The

state provided no evidence of Len having a gang affiliation. An inference that Len

was a gang member is speculative.

      Neither did the state prove that Len knew about Si’s firearm. The state

                                          1
claims Len must have known of Si’s weapons since Len called Si for assistance.

The state cites the sheer number of weapons maintained by Kiet and Si to be

evidence of Len’s knowledge. Neither of the state’s speculations are evidence of

Len’s knowledge.

      Len neither produced the gun nor fired the shot. His entry of the house with

the other three does not by itself show an intent to kill Andy. The shooting began

almost immediately. How beyond a reasonable doubt could any rational trier of

fact decide what Len’s intent was when the shooting began?

      Len was also convicted of attempted murder. On this crime the trial court

had instructed the jury:

      One who aids and abets the other in the commission of the crime or
      crimes is not only guilty of those crimes but is also guilty of any other
      crime committed by a principal[,] which is a natural and probable
      consequence of the crime or crimes originally aided and abetted.

The state appellate court affirmed.

      It is apparent that the error in Len’s conviction of first degree murder also

infected this instruction so that being found to be an abettor of murder, he was

found by the jury to be an abettor of attempted murder.

      Deferential as I am required to be to the state court and respectful as I am of

the judgment of my two colleagues, I am not able to conclude that Len’s guilt of



                                          2
first degree murder or of attempted murder was proved beyond a reasonable doubt.

      Reaching this conclusion, I do not question the rationality of the state judges

nor of the district judge nor of my two colleagues, all of them judges who found

the evidence against Len enough to prove him guilty beyond a reasonable doubt.

To judge the reasonableness of a result reached by a court a judge most certainly

must consider the views of other judges but in his own resolution of the question

must form his own judgment of what is reasonable.




                                         3
