Unpublished Disposition, 917 F.2d 566 (9th Cir. 1990)

MEMORANDUM^* 

Trung Buu Tran appeals from an order dismissing his petition for a writ of habeas corpus. He makes three claims, none supported by the state court trial record. We affirm.

Tran was convicted in a California state court of first degree murder with special circumstances, and sentenced to life in prison.

The defense conceded that Tran was guilty of first degree felony murder, in that he was an accomplice in a robbery in which a homicide occurred. However, the defense argued that Tran was not the man who actually did the killing.

Tran did not testify at the guilt phase of his trial. At the penalty phase, he testified that he was the second man without the gun, and that he was not present in the back of the store when the shooting occurred. Before closing argument in the penalty phase, juror number six sent a note to the court which read, "In view of the late testimony, will the jury have an alternate chance of change of verdict?" The court responded to this question when it instructed the jury at the penalty phase as follows:

During this phase of the trial, you have heard evidence from the defendant regarding his participation in the robbery of the Hong Kong Market. Such evidence, even if it creates a reasonable doubt in your mind as to the role the defendant played in the robbery, will not have the effect of reversing your previous verdict as to the truth of the special circumstances. However, such evidence may be considered by you at this time as a mitigating factor in determining penalty.

California Court of Appeal Opinion at 5-7 (Appellee's Brief, Exhibit A).

Because the jury during the guilt phase had found Tran guilty of first degree murder with special circumstances, the jury was limited during the penalty phase to choosing between the death penalty and life in prison without possibility of parole, depending on whether it found aggravating or mitigating circumstances to predominate. Id. at 7.

As aggravating circumstances, the prosecution presented evidence of a prior conviction for manslaughter, an unadjudicated robbery, and an unadjudicated homicide. Tran, in addition to his testimony that he was not the killer, presented evidence describing the violence of life in Saigon, his escape from Vietnam, and the psychological trauma and adjustment problems facing Vietnamese refugees, especially unaccompanied minors such as Tran. Tran was sentenced to life imprisonment without the possibility of parole.

The California Court of Appeal affirmed Tran's conviction and sentence in an unpublished opinion. The California Supreme Court denied review. Tran later filed two petitions for writ of habeas corpus in the California Supreme Court. These petitions were denied.

Tran next filed a petition for writ of habeas corpus in federal district court. The district court denied the petition for failure to state a claim.

This appeal followed. A motions panel denied a motion to dismiss the appeal as time barred, relying on Houston v. Lack, 108 S. Ct. 2379, 2382 (1988) (notices of appeal filed by pro se prisoners deemed filed when they are delivered to prison authorities for forwarding to the court) and Miller v. Sumner, 872 F.2d 287, 288 (9th Cir. 1989) (same).

DISCUSSION

Appellant's first two arguments are essentially two prongs of the same argument based upon the question posed by juror number six during the penalty phase of the trial, asking whether the jury at that stage could have the option of reconsidering the guilt phase verdict.

Tran contends that his sentence of life without possibility of parole is so disproportionate to his crime as to constitute cruel and unusual punishment under Solem v. Helm, 463 U.S. 277, 290 (1983). Tran argues that his sentence was determined based on the jury's finding at the guilt phase that he committed first-degree murder with special circumstances. However, at the penalty phase " [a]t least one juror indicated that he might change the guilt-phase verdict if he could." Tran asserts that if the jury had been permitted to reconsider the guilt verdict, "in all probability they would have elected to find against the special circumstance allegation." This kind of speculation can follow every guilty verdict where a defendant does not take the stand in the trial on the guilt question but does take the stand at the penalty trial.

There is clearly no basis for conducting a proportionality review based on what facts the jury might have found, rather than on the facts that the jury actually did find. The only conceivable basis for this claim would be if the guilt-phase verdict were in fact to be overturned, and a new jury were to find the facts to be as Tran asserts them.

Tran's second argument, which is an attack on the jury's guilt-phase verdict, is equally without merit. Tran argues that because one juror during the penalty phase asked about reconsidering the guilt-phase verdict, due process required the judge either to grant this request or to submit a third alternative penalty to the jury. Under California law, trial judges have the power to dismiss special circumstances findings if a jury imposes a penalty of life without possibility of parole, thus making the defendant eligible for parole. People v. Carrera, 49 Cal. 3d 291, 333-34, 261 Cal. Rptr. 348, 374-75, 777 P.2d 121, 147 (1989) (construing Cal.Penal Code Sec. 1385). Tran does not contend that the jury directly possessed the judge's power to set aside the special circumstances finding. However, he argues that since a sentencing jury "has something of the power of the judge," the court "had the power, under the strictures of due process, to give the jury an opportunity to exercise something of these equitable powers normally vested in the judge." Appellant's Opening Brief at 24-25.

At most, Tran's argument is that California law might have permitted the court to grant the jury this power. He cites no precedent for the proposition that federal due process required the judge to do so. Perhaps recognizing the lack of precedential support for this claim, Tran states that " [t]he justification for this lies in no one rule of law but in due process itself." Id. at 25. However, there is no basis at all for the claim that due process requires the reconsideration Tran is requesting.

Further, strong policy reasons exist for rejecting such a requirement. As the California Court of Appeal explained in rejecting Tran's argument, "The reopening of the guilt phase verdict ... would allow reconsideration of that verdict in light of evidence (heard at the penalty phase) not properly admissible on the issue of guilt." California Court of Appeal Opinion at 17. In addition, such reopening would disrupt the procedure of the bifurcated trial, id. at 16, and would give defendants in capital cases strong tactical incentives not to testify at the guilt phase:

With the knowledge that a favorable impression upon the jury during the penalty phase may be drawn upon to attempt to change the effect of a guilt phase verdict, no sensible defendant would take the risk of testifying at the earlier stage. The failure to testify would tend to deprive the jury of evidence relevant to guilt which it might otherwise receive.

Id. at 16-17. Tran's attack on the finality of the verdict fails.

Tran's initial trial was a California murder trial in which he was potentially subject to the death penalty. Under California's bifurcated procedure for such trials, Cal.Penal Code Secs. 190.1, 190.3, the jury was first required to determine whether he had committed intentional first degree murder with special circumstances. Once the jury made that determination, they moved to the penalty phase, in which they were limited by statute to choosing between the death penalty or a sentence of life without possibility of parole. Cal.Penal Code Secs. 190.2(a).

The Supreme Court has held that it violates the Eighth Amendment prohibition against cruel and unusual punishment to impose the death penalty on a defendant who participates in a robbery but does not "himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." Enmund v. Florida, 458 U.S. 782, 797 (1982). Tran conceded that he "was guilty of first-degree felony murder in that he was an accomplice in a robbery during which a homicide occurred." Tran requested, and the trial court gave an Enmund instruction concerning whether Tran was the actual killer or had an intent to kill. The jury was properly instructed on the law and found Tran guilty of first degree murder with special circumstances--intentionally killing during the course of a robbery.

Tran contends in these proceedings that the Enmund instruction was not given, but the record refutes his contention.

Other claims were briefed and argued but none has support in the record.

AFFIRMED.