Somboon Timme Phaymany v. DON TAYLOR and CALIFORNIA ATTORNEY GENERAL

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.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SOMBOON TIMME PHAYMANY,
Petitioner - Appellant,
v.
DON TAYLOR and CALIFORNIA
ATTORNEY GENERAL,
Respondents - Appellees.
No. 07-55112
D.C. No. CV-00-02554-L
MEMORANDUM*
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.
FILED
JUN 15 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The California Court of Appeals reversed two of Phaymany’s three1
conspiracy convictions.
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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. The court sentenced Phaymany to two consecutive1
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

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Defense counsel already had elicited part of the statement.2
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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

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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

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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.

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