Dao v. Robertson

Background

A Santa Clara County jury convicted Cuong Huy Dao in 2013 of assault with a deadly weapon under California Penal Code § 245(a)(1). The jury also found that Dao personally inflicted great bodily injury and personally used a dangerous and deadly weapon. The trial court found one prior strike conviction and one prior serious felony conviction and imposed a 16-year sentence.

Dao later sought federal habeas relief, meaning he asked the federal court to set aside his state conviction because it allegedly violated federal law. The case was stayed so he could pursue additional claims in state court. After the case was reopened, Dao filed an amended petition, and the respondent filed a supplemental answer.

Prosecutor’s Alleged Withholding of a Recording

Dao claimed that the prosecutor failed to disclose a police recording of witness Luz Langarcia, violating his due-process rights, a state-court discovery order, and the rule from Brady v. Maryland requiring disclosure of material evidence favorable to the accused.

The recording was uploaded to the case file but did not appear in the system, possibly because it was not uploaded properly. Neither side knew about it until after Langarcia testified, and both learned of it on the same day. The trial court found no prosecutorial bad faith. The court also found that the recording made Dao appear to be taunting and berating the victim rather than showing compassion. Defense counsel agreed that admitting it would harm Dao’s case.

Judge Orrick denied this claim. He explained that an alleged violation of a state discovery order or state discovery statute is not, by itself, a constitutional violation. He also ruled that Brady did not apply because the recording was not favorable to Dao and was discovered in time for the defense to use it at trial. The state court’s denial of the claim was not objectively unreasonable under the federal habeas standard.

Ineffective Assistance of Counsel

To establish ineffective assistance of counsel, a petitioner must show both that the lawyer’s performance fell below an objective standard of reasonableness and that the error probably affected the result. Because Dao’s claims had been rejected by the state courts, the federal court also applied the highly deferential standard governing review of state-court decisions.

Self-Defense Instruction

Dao argued that his lawyer should have asked the trial court to add the “antecedent threats” language to CALCRIM No. 3470, the instruction addressing self-defense. The omitted language would have told jurors that, if the victim had threatened or harmed Dao in the past, they could consider that information when deciding whether Dao’s conduct and beliefs were reasonable.

The jury instead received an instruction telling it to consider all circumstances known to Dao and apparent to him when deciding whether his beliefs were reasonable. The state appellate court concluded that the existing instructions adequately covered Dao’s defense and that he was not prejudiced by the omission.

Judge Orrick agreed that the instruction the jury received reasonably conveyed Dao’s self-defense theory. Because the jury could consider whether the victim had threatened or harmed Dao as part of all the circumstances, Dao did not show a reasonable probability that the omitted language would have changed the result. The ineffective-assistance claim based on the instruction was denied.

Recordings of the 911 Call and Langarcia’s Statement

Dao also argued that his lawyer should have introduced a recording of Dao’s 911 call and the recording of Langarcia’s statement. The 911 call was not part of the record, and Dao did not provide a transcript. The only description he offered was that he told the dispatcher that two Asian Indian store clerks had fought him. Judge Orrick ruled that the record contained no supporting evidence for this claim.

As to Langarcia’s recorded statement, the trial court and both parties agreed that it helped only the prosecution and would harm Dao’s defense. Judge Orrick therefore found no deficient performance or resulting prejudice from counsel’s decision not to seek its admission. He denied this ineffective-assistance claim as well.

Disposition

The court concluded that the state courts’ decisions were not contrary to, or unreasonable applications of, clearly established federal law and were not based on unreasonable factual determinations. The petition was DENIED. The court directed the Clerk to enter judgment for the respondent and close the file.

The court also ruled that a certificate of appealability would not issue, while noting that Dao may seek one from the United States Court of Appeals for the Ninth Circuit.