Opinion
No. C 99-4026 SI (pr)
January 29, 2001
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
This matter is now before the court for consideration of the merits of Jason T. Phans pm se petition for writ of habeas corpus concerning his 1996 conviction in the Santa Clara County Superior Court. For the reasons discussed below, the petition will be denied. Phan's request for an evidentiary hearing and request for appointment of counsel also will be denied.
BACKGROUND
A. The Crimes
The evidence presented at trial included the following:
The crimes at issue occurred late on the night of April 7, 1995 when a group of individuals broke in to SCI Systems, a microchip manufacturer in San Jose, California. Petitioner Jason Phan was caught with Hung Thanh Tran and Trie Hai Le trying to leave the scene of the crime.
At about 11:45 p.m. security guard Sheldon Russell was on duty in the SCI building and was talking on the phone with another SCI employee. A third SCI employee, Lilibeth Esposo, was sitting in the lobby waiting for her ride home after having completed her work shift. Russell saw two well-dressed Vietnamese men, one in a gray blazer, come to the lobby door at about 11:50 p.m. Russell electronically released the door to let them in, mistakenly believing they were there to pick Esposo. The men went to the security office; one eventually started cursing at Russell, pulled a handgun on him, and dry-fired the gun at him several times. That man was later identified by Russell as defendant Le. Le struck Russell with the gun, ordered him to get down on the ground, and began kicking him. Another Vietnamese male in a dark brown ski mask, knit gloves, and a green long-sleeved shirt began to ask Russell for the videotapes from the security camera. Russell gave the tapes to the man and the man continued to interrogate Russell. The man held a knife to Russell's face and cut Russell across the bridge of his nose during the interrogation. (The prosecutor argued that this masked man was Phan.) Esposo was dragged into the security office and forced to lie down on the floor. She observed the intruders using walkie-talkies to communicate.
Meanwhile, the woman with whom Russell had been speaking on the phone called"9 11" and police were dispatched to the scene.
Delfin DeGuzman was Esposo's uncle who went to SCI to pick her up after her shift. Le walked out the door and approached DeGuzman in his car. Le pulled a gun on DeGuzman and took him inside the SCI building. Le was speaking in Vietnamese into a walkie-talkie at the time. Le led DeGuzman at gunpoint into the security officer and made him get down on the floor for about 5 minutes. DeGuzman saw 3-4 masked men when he first came in the building. The men then moved Russell, Esposo and DeGuzman from the security office to the cafeteria locker area. (From DeGuzman's car, it was 45 feet to the entrance to the SCI building, 57 feet to the security lobby and 94 feet to the cafeteria locker area.) DeGuzman thought there were 8| 10 men in the room with them and Esposo thought there were approximately 10 men there.
DeGuzman's car alarm sounded a few minutes later. One of the men pulled DeGuzman's car keys out of DeGuzman's back pocket and threatened to kill him if he did not cooperate. All the intruders then ran out of the SCI building.
The police arrived. Le was arrested standing by a car later identified as DeGuzman's car. On Le's person, the police found an unloaded gun, 5 tie wraps like those used to tie up Russell and DeGuzman, and surgical gloves. DeGuzman's watch was found nearby. DeGuzman identified Le's gun as the one that had been pointed at him. One of Le's knuckles was bleeding and he had blood on his clothes. As the police officer arrested Le, numerous masked persons ran out of the building. The police officer ordered them to stop, but none did.
Two other officers chased the running men and apprehended defendant Hung Thanh Tran. Nearby, they found a revolver and a fanny pack containing plastic flex cuffs and a stun gun.
Other officers found defendant Jason Tran Phan hiding underneath some bushes near the building. Phan had been spotted by employees from another business who saw Phan and two other men running away. Those employees called the police and directed the police to where Phan was hiding. One of the employees identified Phan as the man he had seen climbing up a large dumpster in the SCI parking lot, throwing something in the dumpster, taking off his sweater and dropping it on the ground. Phan was wearing a T-shirt when arrested. A police officer retrieved two videotapes from the dumpster and a green turtleneck shirt on the ground near the dumpster.
B. Summary of Proceedings
Phan, Le and Tran were jointly tried for several offenses. Following a jury trial in Santa Clara County Superior Court, they all were convicted of one count of robbery, two counts of false imprisonment, one count of assault by means of force likely to produce great bodily injury, one count of second degree burglary, one count of conspiracy to commit a crime (with seven overt acts), and one count of kidnapping for the purpose of robbery. The jury also found true the allegations that Tran and Phan were armed with a firearm as to each of these crimes except the conspiracy.
On April 26, 1996, Phan was sentenced to a total unstayed term of life plus six years in prison. The judgment of conviction was affirmed by the California Court of Appeal. The California Supreme Court summarily denied review.
Phan then filed this action, seeking a federal writ of habeas corpus. Respondent filed an answer in response to the court's Order To Show Cause and Phan filed a traverse. Four claims must be adjudicated: (1) whether Phan's right to due process and to present a defense were violated by the exclusion of evidence that he identified by name his codefendants when he spoke to police after his arrest, (2) whether Phan's right to due process was violated by the court's failure to sever his trial from the trial of Le and Tran, (3) whether Phan's right to due process was violated by the kidnapping for robbery instructions given and refused, and (4) whether Phan's right to due process was violated by the refusal to give his proposed accomplice instructions.
DISCUSSION
A. Standard of Review
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d); see Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000).
B. Exhaustion
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b),(c). Respondent contends that Phan did not exhaust his state court remedies as to some of his claims. Since the court finds Phan's arguments unpersuasive on the merits, it will deny the petition even though Phan may not have exhausted state court remedies as to the claims. See 28 U.S.C. § 2254(b)(2) (court may deny (but not grant) habeas petition on the merits notwithstanding petitioner's failure to exhaust).
C. Claims
1. Exclusion of Portion of Phan's Statement To Police
a. State Court Proceedings
Phan gave two statements to the police when he was arrested. At first, he told officer Hamilton that when he approached the SCI building and looked inside, he saw people laying on the floor being held at gunpoint. He also told officer Hamilton that a person ran out and handed him some videotapes, which made him nervous, so he ran and threw the videotapes away. Once Phan was taken to the preprocessing center, he gave a lengthier statement to officer Ngo in which he incriminated himself, Le and Tran. He identified Tran as the person who recruited him to participate in a burglary, which he defined as a break-in in which no people were present (as opposed to a robbery, which he defined as a situation involving the use of force or threats against people). Phan told officer Ngo that other persons would be involved in the crime, and that Phan was going to receive a couple thousand dollars for acting as a lookout during the burglary. Phan also told officer Ngo that he saw defendant Le in front of the building. He told officer Ngo that he was dropped off nearby and when he went to the SCI site, he saw a Vietnamese male holding a gun over three people who were lying on the floor inside the building. Phan said he panicked but people began running out of the SCI building before he could run away. A man with a gun ran over to him, handed him a videotape and told him to dispose of it. Phan ran with the tape and tossed it into a dumpster. Phan gave inconsistent statements as to whether he actually entered the building. Phan was wearing a white T-shirt when arrested — attire that Ngo thought inappropriate for that cool April night.
Phan did not testify. Evidence of his post-arrest statements came in via the police officers' testimony. When evidence of Phan's statements was admitted at trial, all references to the names of the two co-defendants were redacted from his statement to preserve their Confrontation Clause rights and to comply with Bruton v. United States, 391 U.S. 123, 126 (1968).
Phan argued in state court (as he does here) that the redaction of the statements to exclude all references to codefendants Tran and Le deprived him of due process. He maintained that had his entire statement (including the references identifying Tran and Le by name as co| participants) been admitted, it would have bolstered his credibility because this information corroborated other statements Phan made to the police and would have countered officer Ngo's statement that he did not find Phan credible. Phan argues that the redaction deprived him of the opportunity to present exculpatory evidence. The California Court of Appeal rejected the claim without hesitation:
Phan reports that officer Ngo "testified that he did not believe Petitioner, stating that Petitioner was really anxious' and "hyper and talkative,' and the state court opinion recited that "Ngo testified that he did not believe Phan was telling the truth. He described Phan as `really anxious,' and `hyper and talkative.'" Petitioner's Brief, p. 14; Ct. of Appeal Opinion, p. 32. This court finds the references to Phan being "anxious," and "hyper and talkative," but is unable to find any record that the jury heard Ngo testify that he did not believe Phan. Indeed, Ngo disagreed with the assessment that Phan was evasive:
Q.[by Mr. Luff]: Officer Ngo, during cross-examination yesterday you testified that Mr. Phan, during the interview with you, appeared to be evasive; is that correct?
A: That's correct.
Q: Could you describe to the jury what you mean by that, what you saw and what led you to that opinion?
A: Maybe I could correct you. I believe I said that for Mr. Tran. Not Mr. Phan.
Q: I'm sorry. Well, let me ask you this. How did you find Mr. Phan to be?
A: He couldn't wait to spill his — guess a bad word for it is to spill his guts to me. He was really anxious. Hyper and talkative.
RT 600-601.
Phan's argument is predicated upon a mistaken belief that ifthejury believed his statement that he was recruited for a burglary only, it could find him liable for burglary and nothing else. Even if he believed that the 10 to 15 masked armed intruders were only planning on carrying out a burglary, however, he was responsible as an aider and abettor for all the natural and probable consequences of the conspiracy to commit burglary, including robbery of the security guard and kidnajpping of outsiders who might foil the plans by contacting pot ice. His liability for robbery did not de p end on whether he had actual knowledge of the robbery, and his liability for kidnapping did not depend on whether he had actual knowledge of the kidnapping. His liability as aider and abettor exists irrespective of whether he shared the specific intent ofthe perpetrator or whether he knew the full extent of the perpetrator's purpose. (People v. Prettyman (1996) 14 Cal.4th 248, 260.) Thus, whether the jury believed Phan that he intended only a burglary, or whether it did not believe him, the result is the same. As a conspirator to commit a burglary, he is liable for all the natural and probable consequences. We find no error.
Cal. Ct. App. Opinion, p. 33.
b. Analysis
A state court's evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process. See Pulley v. Harris, 465 U.S. 37, 41 (1984); Jammal v. Van de Kamp, 926 F.2d 918. 19-20 (9th Cir. 1991). Here, Phan contends that the exclusion of evidence violated his right to present a defense.
The Compulsory Process Clause of the Sixth Amendment preserves the right of a defendant in a criminal trial to have compulsory process for obtaining the presence and testimony of a favorable witness so that he may present his version of the facts just as the prosecution presents its version of the facts for the jury to decide where the truth lies. See Washington v. Texas, 388 U.S. 14, 19 (1967); see also id. (right applies to the states through the Fourteenth Amendment). Several Supreme Court cases have addressed the criminal defendant's right to present evidence in support of his defense. In Chambers v. Mississippi. 410 U.S. 284 (1973), the Court held that the defendant was denied a fair trial when the state's evidentiary rules prevented him from calling witnesses who would have testified that another witness made trustworthy. inculpatory statements on the night of the crime. And in Crane v. Kentucky. 476 U.S. 683, 690-91 (1986), the Supreme Court held that the defendant's right to have a fair opportunity to present a defense, whether rooted in the Fourteenth Amendment's Due Process Clause or in the Sixth Amendment's confrontation or compulsory process clauses, is violated by a trial court's blanket exclusion of competent, reliable evidence bearing on the credibility of a confession when such evidence is central to the defendant's claim of innocence. See also Green v. Georgia, 442 U.S. 95 (1979) (finding a due process violation in the exclusion of highly relevant and reliable hearsay evidence on a key issue); Rock v. Arkansas, 483 U.S. 44, 56-62 (1987) (holding unconstitutional Arkansas per se rule excluding all hypnotically enhanced testimony). The common thread running through these cases is that "states may not impede a defendant's right to put on a defense by imposing mechanistic (Chambers) or arbitrary (Washington and Rock) rules of evidence." LaGrand v. Stewart, 133 F.3d 1253, 1266 (9th Cir. 1998); see also Carson v. Peters, 42 F.3d 384, 387 (7th Cir. 1994) (Chambers and Green "establish the rule that "if the defendant tenders vital evidence the judge cannot refuse to admit it without giving a better reason than that it is hearsay.' [Citation.] If the state judge does give a `better reason,' then Chambers and Green have served their purpose — to relax the stranglehold of maxims and get judges to think functionally.")
The Sixth Amendment right to present relevant testimony may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. See Rock v. Arkansas. 483 U.S. at 55; Taylor v. Illinois, 484 U.S. 400, 410 (1988) (right to compulsory process is not absolute). Thus, the accused's compulsory process right may be limited by evidentiary rules. See Perry v. Rushen, 713 F.2d 1447. 1453-54 (9th Cir. 1983) (no violation of compulsory process to prohibit evidence of third party identity because evidence was collateral and state interest in evidentiary rule was overriding), cert. denied, 469 U.S. 838 (1984); Zf. Montana v. Egelhoff, 518 U.S. 37, 42-43 (1996) (defendant does not have an unfettered right to offer evidence that is incompetent, privileged or otherwise inadmissible under standard rules of evidence; the exclusion of evidence does not violate the Due Process Clause unless it offends some fundamental principle ofjustice). States have the power "to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability-even if the defendant would prefer to see that evidence admitted." Crane, 476 U.S. at 689-90.
The state court prevented Phan from putting on the identification evidence in order to preserve the Confrontation Clause rights of his co-defendants. See Bruton v. United States, 391 U.S. at 126 (defendant is deprived of his right to confront when a facially incriminating confession of a non-testifying codefendant is introduced at their joint trial). Limiting the identification evidence Phan could present for the legitimate purpose of accommodating other defendants' Confrontation Clause rights did not violate Phan's constitutional right to present a defense. Cf. Rock v. Arkansas, 483 U.S. at 55-56; Taylor v. Illinios, 484 U.S. at 410. The excluded evidence was limited. From the jury's perspective, there was an absence of evidence about whether Phan named his co-defendants and nol any evidence or argument that Phan refused to tell the police who was with him. The jury heard evidence that Phan said things like "the other person" or "another guy" and no attention was drawn to the fact that these persons referred to in the third person pronoun form actually had been identified by name. The record simply does not provide factual support for much of Phan's argument about how the lack of identification evidence undercut his credibility. There is no support in the record for Phan's assertion that the "prosecutor argued that Petitioner lied to Officer Ngo, and pointed out that Petitioner did not identify all of the participants in the burglary." Petitioner's Brief, p. 25; sec Petitioner's Exh. B (Appellant's Opening Brief), P. 16; Petitioner's Exh. E (Petition For Review), p. 16. Nowhere in the prosecutor's closing argument is there a contention that Phan lied to Officer Ngo and did not identify the co-participants. See RT 1294-1352 (prosecutor's closing argument); RT 1462-1507 (prosecutor's rebuttal closing argument). The prosecutor's argument that Phan was not credible did not rest in any way on Phan's failure to identify particular codefendants by name. The prosecutor did argue that the stories the defendants provided after their arrest "were lies," RT 1307, but he never argued that the failure to identify codefendants showed that Phan was a liar. The record also does not support Phan's contention that officer Ngo said that Phan refused to identify his co-defendants. Lastly, Phan does not identify the place in the record where it shows that evidence was presented that he was being evasive when interviewed by Ngo. Lee fn. 1, aupra.
Even if one assumes that the exclusion of the identification evidence interfered with Phan's right to present a defense, Phan would not be entitled to relief because the error did not have a "`substantial and injurious effect or influence in determining the jury's verdict'" so as to cause "`actual prejudice.'" Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting K.oIteakoZs v. United States, 328 U.S. 750, 776 (1946)). Phan's claim fails under two distinct harmless error analyses. The first kind of harmlessness is the kind the state appellate court found. Whether or not the jury believed Phan's story that he intended only a burglary, the result would be the same: as a conspirator to commit a burglary, he was liable for all the natural and probable consequences. Cal. Ct. App. Opinion, p. 33. That court essentially determined that Phan's "defense" was a legal dud because, under the circumstances, Phan's role as a lookout for the burglary made him liable for the robbery and kidnapping that were the natural and probable consequences of the intended criminal activity. This court is not free to review the state court's determination of state law. See Hicks v. Feiock, 485 U.S. 624, 629 (1988); cf, id. at 630 n. 3 (quoting West v. American Telephone Telephone Co., 311 U.S. 223, 237-38 (1940) (determination of state law made by an intermediate appellate court must be followed and may not be "`disregarded by a federal court unless it is convinced by other persuasive data that the
highest court of the state would decide otherwise'"). Rather than deciding whether Phan could be liable under California's natural and probable consequences doctrine, this court starts its analysis by accepting that he could be so liable because that is what the state appellate court already decided as a matter of state law. The California Court of Appeal's decision was not contrary to, or an unreasonable application of, clearly established federal law because it does not violate the federal constitution to exclude evidence that does not tend to establish a defense.
Phan's argument also fails under a second kind of harmless-error analysis: even if the identification evidence had been admitted, it wouldn't have made Phan's story more believable. Had the trial court admitted evidence that Phan identified Tran and Le as participants in the crime, it can be said with certainty that Phan would not have fared any better in the jury's eyes. Phan contends that the evidence would have bolstered his credibility and led the jury to believe his story, but the identification evidence wouldn't have swayed the jury because of other problems with his story. Phan left so many details out of his confession, that the absence of information about his co-defendants made no difference. For example, Phan did not explain to Ngo why he thought there would be no one in the premises when he already had been to the site earlier on the night of the crime and knew that part of the plan was for him to receive the security camera videotapes and did not describe how he was going to communicate with the criminals on the inside for whom he was supposed to be the look-out. RT 60 5-606. The jury also heard that Phan was somewhat evasive in describing which girlfriend dropped him off at the site. RT 606-608. The jury also heard that Phan was vague as to how much money he would receive and Phan told Ngo he would receive a couple thousand dollars for participating in the crime. RT 562. And the jury heard that Phan provided conflicting accounts as to whether he entered the building. RT 601-602. Finally, there were up to 15 participants in the crime so Phan's identification of only the two others who had been caught at the scene would not have impressed the jury much about his candor. The absence of evidence that Phan named Le and Tran as co| participants made no difference under the circumstances to the believability of Phan's account to the police.
Phan's right to present a defense was not violated. Even if one assumes that the presentation of his defense was hindered, the hindrance did not have a substantial and injurious influence in determining the jury's verdict so as to cause actual prejudice to him.
2. Denial of Severance of Co-Defendants' Trials
Phan's second claim is almost the flip side of his first claim. In his second claim, Phan contends that his trial should have been severed from that of his co-defendants because the court could not admit evidence of his identification of his co-defendants. According to Phan, the joint trial effectively denied him due process because the exculpatory evidence was not admitted. whereas had a separate trial been held, the exculpatory evidence would have been admissible. Phan also contends that there was "too much other evidence offered of entirely separate actions that were unconnected to this Petitioner, which served to fan the flames of prejudicial spillover." Petitioner's Brief, p. 36. The California Court of Appeal did not address this claim separately from the claim that the evidence should not have been excluded.
A joinder, or denial of severance, of co-defendants may prejudice a defendant sufficiently to render his trial fundamentally unfair in violation of due process. See Grisby v. Blodgett. 130 F.3d 365, 370 (9th Cir. 1997). To prevail on a constitutional claim, the petitioner must demonstrate that the state court's joinder or denial of his severance motion rendered the trial he had fundamentally unfair. See id. This prejudice is shown if the impermissible joinder had a substantial and injurious effect or influence in determining the jury's verdict. See Sandoval v. Calderon, 231 F.3d 1140, 1146 (9th Cir. 2000).
For the same reasons that the court found no prejudice from the exclusion of evidence discussed in the preceding section, it finds no prejudice resulted from the denial of the severance motion. That is, even if Phan had a separate trial and presented the identification evidence, he would not have established a defense under California law. Moreover, presenting the identification evidence would not have made his story any more believable to the jury.
Phan also suggests that evidence concerning unrelated actions was admitted and was prejudicial to him. His argument is unpersuasive. Had Phan been tried separately, evidence of every crime that petitioner aided and abetted would have been admissible at his trial. The evidence of the actions of the co-conspirators was relevant to a determination of Phan's guilt as a co-participant in that evening's criminal activities. Phan's analysis is done as if the three defendants were being tried for unrelated criminal conduct, but the truth is just the opposite: they were all being tried for conduct related to their planned joint activities that night. Trying
Phan, Tran and Le jointly did not result in a fundamentally unfair trial and no prejudice resulted from the failure to sever Phan's trial from that of his co-defendants.
3. Kidnapping Jury Instructions
Phan next contends that his right to due process was violated by the trial court's rejection of proposed defense instructions on kidnapping and use of kidnapping instructions favorable to the prosecution. The kidnapping for robbery instructions given at trial included these:
Kidnapping for robbery requires movement of the victim that is not merely incidental to the commission of a robbery, and which substantially increases the risk of harm over and above that necessarily present in the crime of robbery itself The two aspects of["]merely incidental to the commission of the robbery["] and ["]substantially increases the risk of harm over and above that necessarily present in the crime of robbery itself["] are not mutually exclusive, but are interrelated.
In determining whether the movement is merely incidental to the crime of robbery, the jury may consider the scope and nature of the movement, which includes the actual distance a victim is moved. However, there is no minimum number of feet the defendant must move the victim. The context of the environment in which the movement occurred must also be considered.
In determining whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in robbery, the jury may consider such factors as the decreased likelihood of detection, the dan ger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes. However, the fact that these dangers do not materialize does not mean that the risk of harm was not increased.
In order for the crime of kidnapping for robbery in violation of Penal Code section 209(u) to be proved, each element of the crime, including movement of the victim that is not merely incidental to the commission of a robbery and which substantially increases the risk of harm beyond that necessarily present in a crime of robbery itself must be proved beyond a reasonable doubt, and in case of a reasonable doubt whether such elements are satisfactorily shown, the defendant is entitled to a verdict of not guilty.
Cal. Ct. App. opinion, pp. 25-26.
The trial court rejected defense instruction "A, " which read:
The crime of kidnap for robbery is not committed where the movement of the victim is only incidental to the commission of the underlying crime of robbery. To constitute the crime of kidnap for robbery the movement of the victim must be such as to increase substantially the risk of harm to the victim over and above that present in the crime of robbery itself. A slight increase in the risk of harm will not suffice. Movement incidental to the robbery within the premises in increase in the risk of harm. Neither does movement of the victim to a place obscured from public view in itself substantially increase the risk of harm. Even movement of the victim more extended than that incidental to the commission of a robbery does not fall within the ambit of the crime of kidnap for robbery unless it also substantially increases the risk of harm to the victim beyond that inherent in the crime of robbery.
Cal. Ct. App. Opinion, p. 23 (emphasis added).
The California Court of Appeal concluded that the trial court properly refused to give defense instruction "A." The instruction contained language inapplicable to the case because it referred to movement of a victim who is initially accosted in a building when the undisputed evidence in this case was that the kidnapped person was initially outside the premises and later brought inside by the kidnapper. Cal. Ct. App. Opinion, p. 26. The contention that the instruction given was skewed in the prosecutor's favor was rejected. "[Defendants] assert it permitted the jury to convict of kidnapping for the purpose of robbery if the person actually robbed was different from the person who was kidnapped. But as we explained earlier, this [is] a correct principle of law." Id. The state appellate court also found that the instructions clearly apprised the jury that it had to find that the kidnapping was for the purpose of robbery and did not permit the jury to convict based on a finding that the kidnapping was merely related to the robbery. Id. at p. 27.
To obtain federal collateral relief for errors in the jury charge, the petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. See Estelle v. McGuire, 502 U.S. 62, 72 (1991). The instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. See id. Similarly, a state trial court's refusal to give an instruction does not alone raise a ground cognizable in a federal habeas corpus proceedings unless the refusal so infected the trial that the defendant was deprived of the fair trial guaranteed by the Fourteenth Amendment. See Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). An examination of the record is required to see precisely what was given and what was refused and whether the given instructions adequately embodied the defendant's theory. See United States v. Tsinnunnie, 601 F.2d 1035. 1040 (9th Cir. 1979).
Phan's proposed instruction was properly rejected because it included a statement that was inapplicable under the facts of the case. Phan's instruction that "Movement incidental to the robbery within the premises in which the victim is initially accosted does not necessarily create a substantial increase in the risk of harm" was inapplicable because the undisputed evidence was that the kidnapping victim was outside in his car when initially accosted and then was brought into the building. Phan cannot blame the court for failing to modify his proposed instruction to rid it of this glaring error which could have confused the jury. Phan also has not shown that the instructions given incorrectly stated the law. The instructions were not argumentative in favor of the prosecutor. They did not unduly focus the jury's attention on particular pieces of evidence and suggest the conclusion to be drawn from the evidence. The instructions adequately conveyed sufficient information about movement that substantially increased the risk of harm and movement that was not merely incidental to the crime of robbery. The information was conveyed in a neutral manner that favored neither side. The instructions did not highlight the evidence Phan wanted to highlight and were not cast in negative language, but neither of those features was constitutionally required. Phan did not have a right to have the jury hear his specific proposed instruction on his theory of the case because the other instructions given, in their entirety, adequately covered the defense theory. U. Duckett v. Godinez, 67 F.3d 734, 743 (9th Cir. 1995). In sum, there was no error in the jury charge on kidnapping, let alone an error of constitutional magnitude.
4. Rejection of Phan's Proposed Instructions Concerning Accomplice Liability
The court refused to give the jury two instructions concerning kidnapping for robbery that had been requested by petitioner. The first instruction read:
To be guilty of kidnapping for robbery, as an aider and abettor, the defendant must with specific intent to rob, kidnap an individual. Evidence has been p resented which may tend to show that defendant Phan had no knowledge of the robbery and therefore did not intend to facilitate the robbery of the victim. If after consideration of all the evidence you have a reasonable doubt that defendant Phan had knowledge of the robbery you may not find him guilty of kidnapping for robbery.
The second rejected instruction read:
To be guilty of kidnapping for robbery as an aider and abettor the defendant must knowingly intend to facilitate the abduction of the victim for the purposes of robbery. Evidence has been presented which may tend to show that defendant Phan had no knowledge of the abduction and, therefore, did not intend to facilitate the abduction of the victim. [¶] If after consideration of all the evidence you have a reasonable doubt that defendant Ph an had knowledge of the abduction you may not find him guilty of kidnapping for robbery. [¶]You may find him guilty of false imprisonment if, without knowledge of the abduction, he intended to facilitate the perpetrator's forceful confinement of the victim.
Cal. Ct. App. Opinion, p. 28 n. 3.
In light of the evidence adduced at trial, the California Court of Appeal found no error based on the trial court's refusal to give the proffered instructions focussing on Phan's defense theory that he intended only to participate in a burglary. "Given the inside information the conspirators had, it was clearly a natural and probable consequence that a robbery would have to be committed to accomplish the purpose of the burglary. As the jury was instructed on aider and abettor liability pursuant to CALJIC 6.11 and 6.16, we find no error based on the court's refusal to give Phan's and Le's proffered instructions." Cal. Ct. App. Opinion, p. 29; see also id. p. 33. That evidence included Phan's statement that when the crime was being planned, the conspirators had been provided with a great deal of information from an "inside" source. They presumably knew details such as the building layout, presumably knew they would have to be let in by a security guard. and presumably knew that the guard would not let them take the computer equipment without force or fear. The evidence also showed that the intruders came with guns, masks and materials to tie up people they encountered — none of which would have been necessary if they were sure the building would be uninhabited. In light of the evidence at trial and under California law, the instruction would not have been proper. Phan was not entitled to an instruction that was not an accurate reflection of state law. The California Court of Appeal's decision was not contrary to, or an unreasonable application of, clearly established federal law.
D. Phan's Requests For An Evidentiary Hearing And Appointment of Counsel
After Phan filed his traverse, he filed a request for an evidentiary hearing and for appointment of counsel to represent him in this action.
An evidentiary hearing is not required because Phan's claims could be and were resolved as a matter of law, see Williams v. Calderon, 52 F.3d 1465, 1484 (9th Cir. 1995) or by reference to the state court record, see Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998). Accordingly, Phan's motion for an evidentiary hearing is DENIED.
A district court may appoint counsel to represent a habeas petitioner whenever "the court determines that the interests ofjustice so require and such person is financially unable to obtain representation." 18 U.S.C. § 3006A(a)(2)(B). The decision to appoint counsel is within the discretion of the district court. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). Appointment is mandatory only when the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations. See id. Appointment of counsel is not needed in this action: the briefing had been completed at the time the motion was made, the court has decided that an evidentiary hearing is unnecessary, and the petition is being denied on the merits. Phan's motion for appointment of counsel is DENIED.
CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus is DENIED. Phan's request for an evidentiary hearing is DENIED. Phan's request for appointment of counsel is DENIED. The clerk shall close the file.
IT IS SO ORDERED.