Oday Mounsaveng v. Anthony A. Lamarque

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ODAY MOUNSAVENG,
Petitioner - Appellant,
v.
ANTHONY A. LAMARQUE,
Respondent - Appellee.
No. 08-15122
D.C. No. CV-03-05377-LJO
MEMORANDUM *
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
FILED
APR 07 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 7 --

2
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,

-- 2 of 7 --

The California Supreme Court initially granted Mounsaveng’s petition for1
review, People v. Mounsaveng, 109 Cal. Rptr. 2d 300 (2001), but subsequently
dismissed it as improvidently granted, 126 Cal. Rptr. 2d 535 (2002).
3
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) (internal quotation1
marks omitted) (quoting the trial court).

-- 3 of 7 --

4
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 of 7 --

5
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 of 7 --

6
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 of 7 --

7
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.

-- 7 of 7 --