P. v. Luong

Filed 6/20/06 P. v. Luong CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal and original proceedings on a petition for a writ of habeas corpus, after judgment of the Superior Court of Orange County, Robert R. Fitzgerald, Judge. Petition granted and judgment vacated. Appeal dismissed as moot.

Ronda G. Norris for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry J.T. Carlton, and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Binh Thanh Luong challenges his convictions for possession of a firearm by a felon and assault with a semiautomatic firearm by direct appeal and consolidated petition for writ of habeas corpus. Among the claims in his habeas petition, defendant contends he was deprived of effective assistance of counsel because his lawyer neither objected to the prosecutor's use of defendant's postarrest silence in violation of Doyle v. Ohio (1976) 426 U.S. 610 (Doyle), nor proffered evidence defendant received warnings under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) as required to demonstrate Doyle error.

We agree counsel's failures deprived defendant of effective assistance of counsel, and conclude there is a reasonable probability defendant would have obtained a more favorable outcome but for counsel's failings. Accordingly, we grant the habeas petition and vacate the judgment of conviction. In light of our disposition on the petition, we dismiss defendant's appeal as moot.

I

Factual and Procedural Background

At approximately 1:00 a.m. on June 22, 2002, Westminster Police Detective Nicholas Tran, conducting surveillance in an unmarked car near a strip mall, spotted defendant and Luc Van Nguyen (also known as Hiep) yelling at each other in front of the Bat Dat Seafood restaurant. Tran noticed defendant held a gun in one hand while pushing Nguyen with the other. During the altercation, Tran observed defendant point the gun at Nguyen several times. Tran called for backup and Sergeant Derrick Vincent responded. Upon arrival, Vincent saw defendant holding a gun at his side in one hand and grasping Nguyen by the shirt or arm with the other.

Sergeant Vincent identified himself as a police officer, drew his weapon, and called for defendant to drop his gun. Defendant pushed Nguyen and quickly departed. Defendant tossed his gun away and entered the restaurant. Vincent followed defendant into the restaurant and arrested him. Defendant agreed to a taped interview with the investigators and remained in custody until trial. The police recovered a nine-millimeter semiautomatic pistol near the restaurant. The pistol contained nine bullets in the magazine, but no bullet in the chamber.

Defendant testified at trial that he acted to protect the restaurant patrons from Nguyen, who was armed and angry. Defendant explained he worked at the restaurant which his brother co-owned. Earlier that evening, Nguyen, part of a large dinner party at the restaurant, became angry when informed the restaurant did not serve hard liquor, and refused to pay the bill. After another guest paid the tab, Nguyen left with the group, but later returned alone drunk, angry, and carrying a pistol â€