Sarun Chun v. RAUL LOPEZ, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SARUN CHUN,
Petitioner - Appellant,
v.
RAUL LOPEZ, Warden,
Respondent - Appellee.
No. 13-16466
D.C. No. 2:11-cv-01480-MCE-
EFB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief District Judge, Presiding
Argued and Submitted October 20, 2015
San Francisco, California
Before: THOMAS, Chief Judge and REINHARDT and McKEOWN, Circuit
Judges.
Sarun Chun was convicted of second-degree murder in the death of
Bounthavy Onethavong. Chun, who was 16 at the time of the shooting, was tried
as an adult and sentenced to 40 years to life in prison. The only explicit theory of
second-degree murder in the case was felony murder based on shooting at an
FILED
JUN 09 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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occupied motor vehicle either directly or as an aider and abetter. Chun appealed,
arguing that felony murder was inapplicable under the merger doctrine. He also
contended that improperly giving the jury the felony murder instruction allowed
the jury to convict him of second-degree murder without finding malice, an
element of the crime. The California Court of Appeal agreed and reversed Chun’s
murder conviction. People v. Chun, 155 Cal. App. 4th 170 (Ct. App. 2007). The
California Supreme Court also found that giving the erroneous instruction was
federal constitutional error, but concluded that it was harmless. People v. Chun,
203 P.3d 425, 443–46 (Cal. 2009). Chun sought a writ of habeas corpus from the
district court, which denied it. We reverse.
On habeas review, we grant relief if we are convinced or have grave doubt
that a constitutional error “had substantial and injurious effect or influence in
determining the jury’s verdict.” O'Neal v. McAninch, 513 U.S. 432, 436 (1995)
(quoting Brecht v. Abrahamson, 507 U.S. 619, 627 (1993)). If a state court
adjudicates harmlessness on the merits, however, we cannot grant relief unless the
state court’s finding that the error was harmless beyond a reasonable doubt was
objectively unreasonable. See Davis v. Ayala, 135 S. Ct. 2187, 2198–99 (2015).
We have grave doubt as to whether giving the erroneous instructions had a
substantial and injurious effect on the verdict. Moreover, we hold that the state
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court’s finding of harmlessness was objectively unreasonable. In brief, the jury
found that Chun was a gang member present at the scene of a gang shooting, but
that he did not fire a weapon.1 It thus almost certainly based its conviction on
Chun having aided and abetted the shooting. Not surprisingly, given the dearth of
evidence, the jury appears to have been so tightly deadlocked that after long
deliberations it returned an inconsistent verdict. In separate counts, the jury
acquitted Chun of the felonies of shooting at Onethavong’s vehicle, and firing from
a vehicle (or aiding or abetting those acts). Both acquittals are also inconsistent
with the second-degree murder conviction. The Supreme Court has noted that
when faced with inconsistent verdicts, the courts cannot know which one¯the
conviction or the acquittal¯“the jury ‘really meant.’” United States v. Powell, 469
U.S. 57, 68 (1984).
In close cases like this courts are cautious about finding harmlessness:
In all cases the constitutional safeguards are to be jealously preserved
for the benefit of the accused, but especially is this true where the
scales of justice may be delicately poised between guilt and
innocence. Then error, which under some circumstances would not be
ground for reversal, cannot be brushed aside as immaterial since there
is a real chance that it might have provided the slight impetus which
swung the scales toward guilt.
1 As part of the second-degree murder conviction, the jury found “not true”
the special circumstance that Chun had “personally and intentionally discharged a
firearm proximately causing great bodily injury or death.”
3

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Glasser v. United States, 315 U.S. 60, 67 (1942) (recognized as superseded on
other grounds by Bourjaily v. United States, 483 U.S. 171, 181 (1987)); see also
Strickland v. Washington, 466 U.S. 668, 696 (1984) (“[A] verdict . . . only weakly
supported by the record is more likely to have been affected by errors . . . .”). As
we recently recognized, the Supreme Court’s analysis in Glasser and Strickland
still binds all fairminded jurists. See Parle v. Runnels, 505 F.3d 922, 928 & n.7
(9th Cir. 2007).
Moreover, even assuming the second-degree murder conviction was the
verdict the jury “meant,” we need to know, at least broadly, what the jury thought
Chun did to aid and abet before we can evaluate the effect of the incorrect
instruction. There was no evidence as to how Chun aided or abetted the crime,2 and
2 It is worth noting that we have held that California courts were
unreasonable under 28 U.S.C. § 2254(d)(1) in affirming an aiding and abetting
conviction under similar facts. See Juan H. v. Allen, 408 F.3d 1262 (9th Cir.
2005). In that case, a 15 year old defendant and his brother were gang members.
Id. The defendant stood behind his brother as the brother shot and killed a member
of a rival gang. There was no evidence that the defendant said or did anything to
encourage or help his brother. Id. at 1266-67. We held this evidence was not
sufficient to support either the act element or the mens rea of aiding and abetting
murder. Id. at 1277-79.
4

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the jury expressly found that Chin did not fire a weapon.3 Therefore we are left
with nearly total doubt about the effect of the error. This doubt is reinforced by the
real possibility, given the inconsistent verdicts, that the jury convicted through
“mistake [or] compromise,” in which case proper instructions could easily have
swayed the outcome. See Powell, 469 U.S. at 65. This is precisely the kind of case
to which O’Neal’s “grave doubt” holding is meant to apply.
We also find the state court’s harmlessness decision objectively
unreasonable within the meaning of section 2254(d)(1). No fair minded jurist
would conclude that it was correct to find the error harmless beyond a reasonable
doubt, given the total absence of evidence of what Chun did to aid and abet and our
resulting inability to assess the effect of the instructional error which permitted the
jury to convict Chun absent a showing of malice. Reasonable doubt is the strictest
standard consistent with reasoned decision-making. It is “the very high level of
probability required by the Constitution” before depriving a person of liberty.
Victor v. Nebraska, 511 U.S. 1, 14 (1994). Any doubts must be so attenuated that a
reasonable person would “not hesitate” to dismiss them. Id at 21. Given the
3 The State suggests that Chun’s statements while in detention help prove
that he aided and abetted the shooting. Even if the statements were probative, they
were admitted for the limited purpose of showing Chun’s gang membership. They
were expressly not to be considered for anything else, including as evidence of
Chun’s intent at the time of the shooting.
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degree of certainty required, the state court was objectively unreasonable in
concluding that the error was harmless beyond a reasonable doubt.4
The district court is directed to issue the writ ordering the State to retry Chun
within a reasonable time or to release him.
REVERSED.
4 Chun also asserts that although inconsistent verdicts are tolerated, the state
court applied Chapman in an objectively unreasonable manner when it inferred
from the inconsistent verdicts that the jury believed Chun had participated in the
shooting, despite the fact that when looking at inconsistent verdicts, courts cannot
know which one the jury actually meant. Powell, 469 U.S. at 65–68. Because we
grant relief, we need not decide this question, nor address Chun’s other claims.
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