                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 15 2010

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




                            FOR THE NINTH CIRCUIT



SOMBOON TIMME PHAYMANY,                          No. 07-55112

              Petitioner - Appellant,            D.C. No. CV-00-02554-L

  v.
                                                 MEMORANDUM *
DON TAYLOR and CALIFORNIA
ATTORNEY GENERAL,

              Respondents - Appellees.



                   Appeal from the United States District Court
                      for the Southern District of California
                 M. James Lorenz, Senior District Judge, Presiding

                        Argued and Submitted May 6, 2010
                              Pasadena, California

Before: B. FLETCHER and PAEZ, Circuit Judges, and EZRA, District Judge.**

       Somboon Timme Phaymany appeals the district court’s denial of his habeas

corpus petition. We have jurisdiction under 28 U.S.C. § 2253 and we affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
      In March 1996, Phaymany participated in a drive-by shooting targeting rival

gang members standing in a parking lot outside a pool hall. In an interview with

police, Phaymany admitted to being a passenger in one of the cars and also

admitted to bringing along his cousin’s nine-millimeter pistol, but he claimed to

have given the gun to someone else. Phaymany maintained that he had no

intention of being involved in a drive-by shooting and only went along to ensure

the return of his cousin’s gun.

      A jury convicted Phaymany of ten counts of attempted premeditated murder

while armed with a firearm, eighteen counts of assault with a semi-automatic

weapon, eighteen counts of assault with a firearm, and three counts of conspiracy –

conspiracy to commit assault with a firearm, conspiracy to commit assault with a

semi-automatic firearm, and conspiracy to commit assault with force likely to

produce great bodily injury.1 The court sentenced Phaymany to two consecutive

life terms with the possibility of parole, plus two years.

      Phaymany raised multiple claims in his federal habeas petition, two of which

are before us on appeal. We review a district court’s decision to grant or deny a




      1
       The California Court of Appeals reversed two of Phaymany’s three
conspiracy convictions.

                                     Page 2 of 5
writ of habeas corpus de novo and the district court’s findings of fact for clear

error. Richter v. Hickman, 578 F.3d 944, 951 (9th Cir. 2009) (en banc).

      Phaymany first challenges the admission of a detective’s testimony

concerning a statement Richard Cooke, the gunman in the car in which Phaymany

was a passenger, gave to police. The detective testified that Cooke said he went to

the pool hall on the day of the shooting because several weeks earlier members of

the rival gang had pulled a gun on him. Defense counsel objected, but the trial

court admitted the statement under California Rule of Evidence 356, which allows

for the admission of a complete statement when part of it already has been

admitted.2

      Phaymany argues that the admission of this testimony violated his right to

confront witnesses against him under Crawford v. Washington, 541 U.S. 36

(2004), and Ohio v. Roberts, 448 U.S. 56 (1980). The government argues that, not

only does Crawford not apply to Phaymany’s trial because the rule of that decision

is not retroactive, but also that the testimony did not directly implicate Phaymany

and, under Roberts, there is no Confrontation Clause violation.

      As an initial matter, the government is correct that Crawford does not apply

to Phaymany’s case. Phaymany’s conviction was final before the Supreme Court


      2
          Defense counsel already had elicited part of the statement.

                                       Page 3 of 5
decided Crawford and the rule of Crawford does not apply retroactively. Whorton

v. Bockting, 549 U.S. 406, 409 (2007).

      Under Roberts, the hearsay statement was admissible because it fell within

“a firmly rooted hearsay exception.” Roberts, 448 U.S. at 66. The admitted

statements implicated only the gunman and did not mention Phaymany. Only

when combined with the other evidence introduced at trial, namely Phaymany’s

own admission to the detective that he was in the declarant’s car and provided a

gun, is this statement relevant to Phaymany’s guilt. See Hernandez v. Small, 282

F.3d 1132, 1141 n.8, 1142-43 (9th Cir. 2002). Under pre-Crawford case law, the

state court’s denial of Phaymany’s Confrontation Clause claim was not contrary to

or an unreasonable application of clearly established federal law.

      Phaymany also argues that his due process rights were violated when the

trial court failed to instruct the jury that personal premeditation and deliberation

were required to find him guilty of attempted murder and eligible for the penalty

enhancement under California law. The California Supreme Court has determined

that a person who is found guilty of attempted murder as an aider and abettor, but

who did not personally act with willfulness, deliberation, and premeditation, is

eligible for the statutory penalty enhancement under California Penal Code section

664. People v. Lee, 74 P.3d 176, 178, 183 (Cal. 2003). We defer to the state


                                      Page 4 of 5
court’s interpretation. See Goldyn v. Hayes, 444 F.3d 1062, 1070 (9th Cir. 2006)

(a state supreme court “has wide latitude in defining and interpreting the elements

of . . . state crimes,” which this court cannot reexamine on habeas review); see also

Wisconsin v. Mitchell, 508 U.S. 476, 483 (1993) (federal courts “are bound by a

state court’s construction of a state statute”). Thus, Phaymany need not personally

have acted willfully and with deliberation and premeditation for the enhancement

to apply to him. The failure here to give an instruction that state law did not

require did not violate due process. See Spivey v. Rocha, 194 F.3d 971, 976 (9th

Cir. 1999) (no due process violation when jury instruction accurately reflected

state law). Therefore, the state court’s decision was neither contrary to nor an

unreasonable application of clearly established federal law.

      AFFIRMED.




                                     Page 5 of 5
