                                                                             FILED
                            NOT FOR PUBLICATION                               APR 07 2010

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



ODAY MOUNSAVENG,                                  No. 08-15122

              Petitioner - Appellant,             D.C. No. CV-03-05377-LJO

  v.
                                                  MEMORANDUM *
ANTHONY A. LAMARQUE,

              Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Lawrence J. O’Neill, District Judge, Presiding

                       Argued and Submitted February 8, 2010
                             San Francisco, California

Before: GOODWIN, BERZON and IKUTA, Circuit Judges.

       Pursuant to the certificate of appealability, this appeal from a denial of 28

U.S.C. 2254 habeas corpus relief to Oday Mounsaveng presents two issues: (1)

whether the state court committed a structural error when the trial judge stated an



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
incorrect burden of proof regarding Mounsaveng’s duress defense, and (2) if not,

whether the state appellate court’s harmless-error analysis was objectively

unreasonable. See 28 U.S.C. §2253 (c)(3).

      Between July 31 and December 19, 1996, Mounsaveng and Vaene

Sivongxxay committed five armed robberies of small jewelry stores and a mini-

market. In the final robbery, Sivongxxay shot and killed one of the owners.

Mounsaveng and Sivongxxay were charged with first-degree murder, felony

murder as to Mounsaveng, and robbery, including firearms enhancements. They

were tried together without a jury.

      Mounsaveng testified about a series of earlier uncharged robberies as well as

the charged robberies. He represented that his duress began in December 1995

with various individuals, including Sivongxxay, who caused Mounsaveng to fear

for his life and harm to his family, which resulted in his participation in the

charged and uncharged robberies. In the five charged robberies, Mounsaveng and

Sivongxxay had handguns, although Mounsaveng claimed that his gun was

unloaded and that he did not receive any of the money or merchandise taken.

While Mounsaveng did not contest his involvement in the robberies, charged and

uncharged, he asserted a defense of duress under Cal. Penal Code § 26(6). The

trial court found both defendants guilty of one count of first-degree murder,


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thirteen counts of robbery, and two counts of attempted robbery plus the firearms

enhancements.

      Regarding Mounsaveng’s duress defense, the trial judge concluded:

      I find insufficient evidence of duress to rise to a standard of
      preponderance of the evidence as to each defendant.
              [Mounsaveng] has established a prima facie case that would lead me
      to believe that there is the possibility that his initial entry into the
      robbery consortium that Mr. Sivongxxay and possibly others were in,
      however, this is not proof rising to a probability, and would only
      apply to uncharged robberies that were testified to by [Mounsaveng].
      It is clear that in–in between the time of those uncharged robberies
      that he testified to and the charged–the first charged offense in this
      case, he had ample opportunity to alert authorities to protect himself
      and his family, long periods of time unaccompanied by any other
      persons who were in a position to threaten him or his family with any
      imminent peril or danger.
              Having found the duress as to each defendant does not rise to the
      level of a preponderance of the evidence, but at best would be evenly
      balanced, the Court need not address the more technical legal issues of
      applicability of duress to the various types of offenses involved in this
      case.
              The court simply finds insufficient evidence of that duress to affect
      any of these charges or enhancements. (Emphasis added.)

People v. Mounsaveng, 105 Cal. Rptr. 2d 285, 289-90 (2001)1 (internal quotation

marks omitted) (quoting the trial court).




      1
        The California Supreme Court initially granted Mounsaveng’s petition for
review, People v. Mounsaveng, 109 Cal. Rptr. 2d 300 (2001), but subsequently
dismissed it as improvidently granted, 126 Cal. Rptr. 2d 535 (2002).

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      The California Court of Appeal recognized that the trial court’s application

of a preponderance-of-the-evidence standard to Mounsaveng’s duress defense was

error, because it relieved “the prosecution of the burden of proving each element of

the charged offense beyond a reasonable doubt,” violating Mounsaveng’s due

process rights. Id. at 291. The appellate court, however, analogized this to trial

error in jury instructions rather than structural error, making it subject to harmless-

error review under Chapman v. California, 386 U.S. 18 (1967), on direct appeal.

Id. The California appellate court determined that the trial

      court’s application of the incorrect burden of proof on
      [Mounsaveng’s] duress defense was akin to improperly instructing a
      jury on that issue. Consequently, we hold that [Mounsaveng’s]
      conviction should not be set aside if this court can confidently say on
      the entire record that the constitutional error was harmless beyond a
      reasonable doubt, i.e., the error did not contribute to the court’s
      verdict.

Id. at 291-92 (citing Rose v. Clark, 478 U.S. 570, 576 (1986)). The court noted

that the trial court applied the erroneous preponderance-of-the-evidence standard

only “to the uncharged robberies”; therefore, “this error could not have contributed

to the verdict.” Id. at 292.

      Regarding the charged crimes, the California Court of Appeal stated that the

trial court “determined it was clear that between the time of the uncharged

robberies and the first charged robbery [Mounsaveng] had ample opportunity to


                                           4
alert authorities to protect himself and his family, long periods of time

unaccompanied by any other persons who were in a position to threaten him or his

family with any imminent peril or danger.” Id. (internal quotation marks omitted).

The court quoted United States v. Bailey, 444 U.S. 394 (1980), in which the

Supreme Court addressed the defenses of duress and necessity and recognized that

the two defenses had “one principle [that] remains constant[:] ‘[I]f there was a

reasonable, legal alternative to violating the law, “a chance both to refuse to do the

criminal act and also to avoid the threatened harm,” the defenses will fail.’”

Mounsaveng, 105 Cal. Rptr. 2d at 292 (quoting Bailey, 444 U.S. at 410).

      On habeas review, the district court applied Brecht v. Abrahamson, 507 U.S.

619 (1993), where a “constitutional error results in reversal ‘only if it had a

substantial and injurious effect or influence in determining the . . . verdict’”; that is

“‘actual prejudice.’” ER 25 (quoting Brecht, 507 U.S. at 631, 637). Regarding

Mounsaveng’s constitutional challenge under federal law, the district court agreed

with the California Court of Appeal’s reliance on Bailey, which “expressly holds

lack of a reasonable and legal alternative to violating the law to be a precondition

‘under any definition of’ duress.” ER 31 (quoting Bailey, 444 U.S. at 410).

      “We review de novo the district court’s grant or denial of a 28 U.S.C. § 2254

petition for writ of habeas corpus.” Yee v. Duncan, 463 F.3d 893, 897 (9th Cir.


                                            5
2006). The Supreme Court has confirmed that many trial errors are subject to

harmless-error review. Hedpeth v. Pulido, 129 S. Ct. 530, 532 (2008). In this

case, the state appellate court determined that the erroneous burden of proof

applied only to the uncharged crimes. Because the trial court applied the proper,

beyond-a-reasonable doubt standard to the charged crimes, the verdict as to them

was unaffected.

      “We have repeatedly held that a state court’s interpretation of state law,

including one announced on direct appeal of the challenged conviction, binds a

federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76

(2005) (per curiam); see Musladin v. Lamarque, 555 F.3d 830, 838 n.6 (9th Cir.

2009) (“[W]e are bound to presum[e] that state courts know and follow the law,

and we have been instructed that AEDPA’s deferential standard demands that

state-court decisions be given the benefit of the doubt.” (citation and internal

quotation marks omitted)). Thus, the trial court’s misstatement as to the

preponderance-of-the-evidence standard regarding Mounsaveng’s ineffective

duress defense was a trial error as to the uncharged crimes, which did not affect the

verdict as to the charged crimes.

      Like the district court, for constitutional review of habeas appeals, we use

the Brecht standard that an error is harmless unless it “had a substantial and


                                           6
injurious effect or influence in determining the . . . verdict.” Brecht, 507 U.S. at

637; see Fry v. Pliler, 551 U.S. 112, 120-22 (2007) (recognizing that a habeas

court must apply the Brecht standard, which subsumes the AEDPA/Chapman

standard). The California Court of Appeal concluded that the incorrect statement

of the burden of proof was limited to the uncharged robberies, and that there was

sufficient time and opportunity between the uncharged robberies and charged

robberies for Mounsaveng to have alerted authorities to protect himself and his

family and no showing of imminent danger. Therefore, the state appellate court’s

harmless-error analysis was not objectively unreasonable, and the erroneous

burden-of-proof standard applied to the uncharged crimes did not have a

substantial and injurious effect on the verdict for the charged crimes.

AFFIRMED.




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