People v. Lam Thanh Nguyen

S076340. Aug. 2015.] [No. PEOPLE,

THE Plaintiff Respondent, NGUYEN,

LAM THANH Defendant and Appellant.

Counsel Neuhoff, Court, for Defendant Richard C. under Supreme appointment and Appellant. Defendant and Andreasen as Amicus Curiae on behalf of Appellant.

David Gillette, Harris, General, Dane R. Chief Assistant Kamala D. Attorney Schons, General, General, D. Attorney Holly W. Assistant Attorney Gary Wilkens, P. Beesley, Attorneys Garrett Beaumont and Christopher Deputy General, Plaintiff and for Respondent.

Opinion 28, 1999, sentenced defendant Lam Thanh LIU, Nguyen January J. On Pham. Due and Tuan This Sang Nguyen appeal to death for murdering Code, 1239, (Pen. (b); undesignated statutory subd. further automatic. § enhancements under code.) are to this We strike the sentence references 186.22, (b)(1) actively subdivision from the sentences imposed section 3, 5, 7, 10, 14. In all other in a in counts and gang respects, participating sentence, the death we affirm the including judgment. Background

I. Facts 4, 1998, filed on May in an amended information charged Defendant 187, (a)) (§ of murder subd. Court with three counts in Orange County Superior 190.2, (§ (a)(3)), subd. two circumstance of murder special multiple (a)(1)), counts of (§ subd. three counts of to commit murder conspiracy (a)), six counts (§§ (a), murder subd. subd. premeditated attempted 186.22, (§ (a)), criminal of a in a street subd. gang possession of participating Code, (Health 11350), & Saf. for sale controlled substance possession § Code, (Health 11351.5). & Saf. The amended information of cocaine base § defendant had inflicted on three of the great bodily injury further alleged Code, 12022.7), (Pen. former had used a victims surviving personally § 12022.5, (former firearm in all crimes committing nearly charged § armed with a firearm in one count (a)), vicariously committing subd. and was (a)(1)). (former murder subd. The amended informa- of attempted § offenses were committed for the benefit of charged tion that all of alleged 186.22, (§ (b)(1).) subd. gang. a criminal street one

The trial court dismissed both counts of commit murder: conspiracy count rested its case and the second count during when prosecution were trial. charges defense case. The severed for drug possession purposes substance, later of a controlled guilty possession pleaded was dismissed. the other drug charge trial, 6, 1998, found

Following guilt jury July phase defendant not of one count of murder and the related count of guilty in a criminal street The convicted defendant of the gang. jury participating and found true the remaining charges remaining thus allegations. Pham, defendant of Due and Tuan and murdering Sang Nguyen convicted found true the the allegation. Following multiple-murder special-circumstance trial, defendant was sentenced death of the for the murders phase penalty Due and Tuan Pham. On the other the Sang charges, trial court Nguyen but three consecutive life sentences a determinate stayed imposed plus sentence 15 years.

A. Guilt Phase Six members of Vietnamese street in mem- gangs Orange mostly County, bers of the were shot six incidents in and Boys, during Cheap separate 1995; three of them died. Defendant is a member of a rival called the gang and Family. sought defendant aided abetted Nip prosecution prove the the first and committed other five. The defense shooting personally contended that the had framed him in order him gang to remove Cheap Boys from the streets. He denied been at the first five having shootings. present Defendant admitted that he had been at the sixth but denied shooting, present did he had and claimed if he the participated participate, shooting had been in self-defense. 21, 1994, July shooting Tony Nguyen

1. In the afternoon of was some members July Tony Nguyen giving of the Lac in the front a ride home. Vinh Kevin was Cheap Boys gang Dam and his driving. girlfriend, seat of car was Tinh Tony

passenger Yu, Vu was of the were the backseat. a member Southside Chynna Scissors, Several members of the a female Asian street more gang. Cheap car. were in another gang following Boys Boulevard, at a Garden Grove car

Tony stopped stoplight He driving car him to his left. recognized girl another beside stopped Tran, male, car, identified as and saw later identified as Nghia later My Phan, but could not in the back in the front seat see passenger people or smiled at the cloudy the windows “were kind of dirty.” Tony girl because “didn’t want to away the other car and then turned because he stare.” driving heard “fell to the gunshots the traffic turned seat.” signal green, When the neck and had fired four five shots. was shot Tony Phan from the down. neck paralyzed Lac, crime, of the who had been in the front seat of passenger

At the scene car, car, in the other told the that he could identify anyone Tony’s police because they were members of were thought they Family but he Nip later, few realized that the A Lac male Boys. days “enemies” Cheap defendant, who lived in the backseat behind shooter down- sitting Lac into” defendant five or six times prior from him. had “bumped stairs Lac’s defendant came to shooting, Some after shooting. days apart- asked, defendant that he Lac assured cops?” ment “What’s up said to the nothing had police. trial, in the other car

At Lac defendant in court who identified person to the the backseat the shooter. Lac also that just prior sat in behind testified car, so, incident, and as it did Tony’s the shooter’s car passed car. car went into a back at the The shooter’s Tony’s stared occupants lot, car to then out to and Tony’s pulled restaurant waited parking pass, it at the on Garden Grove Boulevard. stoplight meet shooting Nguyen

2. November Huy 24, 1994, Nguyen was Huy On November around 8:30 Thanksgiving, p.m., times, then arcade called game outside and inside a video shot first multiple standing He testified that he was outside Mission Control Garden Grove. and he was in the Tiny a him asked if the arcade when “guy” approached He added that the had friends in the gang. Rascals said he Gang. Huy only and then he hit T.R. [Tiny Gang], I to Rascals “thought belonged “guy” little of claimed that remembered what the face one time.” he Huy me on he testified that he heard and gunshots after he but was punched, happened found he blood all his body, into Mission Control. He saw over ran move, is now partially paralyzed. and then lost consciousness. Huy unable He cannot walk but has some movement of his He regained arms. could not remember much about the and could not shooting who identify person shot him.

Channthai Pin testified that had “Cindy” she outside of Mission gone Control with two friends to smoke a cigarette. She heard who was Huy, associated with the Rascals start to Tiny Gang, yell someone in Vietnam- ese. Pin had seen that before at a motel person day He had nearby. and him in the face. displayed gun. Huy approached person punched back, The and Huy several of friends person punched Huy’s joined fight. Huy fell pushed person up against pillar. person ground, friends him and him. Huy’s began kicking He tried to punching get up then out of his waistband and pulled gun shot in the stomach. Huy Huy Control, stumbled into Mission and the shooter followed him in. Pin then heard more shots fired inside Mission Control. Other witnesses inside Mission Control testified that was shot several times Huy as on the floor. lay trial, Before Pin had identified defendant as the who shot but she person Huy, did not identify court. witnesses, there were

Although few were able many the shooter. identify Chamroeun Choeun was outside smoking cigarette Mission Control with her friends Pin and Chris when she noticed Nguyen Huy arguing someone in Vietnamese. The two men and other starting fighting, tried people Choeun then heard a stop fight. gunshot turned and saw defendant fire a twice. She ran. gun 5, 1995,

3. February murder Sang Nguyen 5, 1995, On February Boys member Cheap gang Sang Nguyen was shot and killed outside of the Khanh Dong restaurant in Westminster. Trieu Binh a fellow member Nguyen, who was from Texas to Cheap Boys, visiting Year, celebrate the Vietnamese New had to dinner at gone the restaurant with To, victim and several other Bich people, including girlfriend Binh Tran, and Linda Vu. Trieu and Tran went outside so Trieu could smoke a cigarette.

Vu defendant, looked the front through window of the restaurant and saw victim, whom she recognized belonging She told the “I Nip Family. was, I saw thought N.F. outside.” asked where [Nip Family] Sang Tran and Vu said he was outside The victim smoking. went outside and met defendant. hands, shook and defendant They his head” and shot the victim. Vu “grabbed her grabbed and ducked under one-year-old daughter table. Vu later identified defendant in a line at the and photographic up, preliminary hearing, at trial. walk and two other members the Nip Family

Trieu saw defendant a was gun. the restaurant. Defendant was carrying Sang toward quickly and Trieu and his companions. restaurant leaving approached his and fall to the a and saw stomach Sang grab ground. heard gunshot head away. then the victim in the and ran shot the crime he he had told the at the scene of that police Trieu acknowledged He murder he had been in the bathroom. had not witnessed the because subculture, talks a who to the be person police may in the gang explained Later, no he called the because he could police longer beaten or killed. had with his friend. gotten away killing that defendant tolerate crime, had that Trieu had been At the scene of the Vu also told police in the bathroom when the crime occurred. She explained people to talk to the are “a you are not supposed police, saying subculture gang ... get rat” if do and rats “sometimes hurt.” you Hall a outside restaurant standing public telephone Martin was by his he a and saw the victim fall on face. gunshot doors when heard then a over him and held a down and made gun shooter then “stepped hear the but and him Hall could not whole comment again.” comment shot shooter then “just it as mother fucker.” The “something-something described and into the lot” and walked down short casually steps parking stood up defendant in identify subsequent photo lineup walked Hall failed away. trial. did not defendant as the shooter at identify 11, 1995, shooting Huynh 4. March Khoi Khoi was shot outside Huynh March member Cheap Boys On hall had been pool the Rack and Cue in Stanton. Huynh playing pool car he on his to his when way Huu Tran and other friends. He left He shot. ran and assailants “a few outside” guys standing saw him, into until him helped liquor shoot someone continuing pursued store. He was shot seven times. later, investigator told a sheriff’s his home 10 days Huynh department

At time. had been friends one defendant had shot him. He and defendant because he was a testify gang that he could not investigator told Huynh defendant’s out photo photo The next day, Huynh picked member. lineup. hall at when p.m. in the and Cue about 9:30 Lenart was Rack

Jeremy pool outside, more It 30 or 40” shots. followed gunshot “probably heard three fired. Lenart saw different like were weapons being sounded different and guns fired outside another one inside the Lenart being hall. saw pool victim, unarmed, defendant shoot one who was and chase that victim as he ran, additional shots. Several other also firing persons shot at the victim as he ran. Lenart as the identified in court who and person shot chased the victim.

David in just Arnold had his truck front of a around parked store liquor corner from the and Cue “heard a Rack when he bunch of gunshots ring out.” There 30” were “25 to that seemed to be gunshots from hall coming pool around ran the corner. He toward the store but saw a man run from the liquor hall and of the in the vicinity parking lot. Arnold could see that pool collapse been man had shot and him into the store. collapsed Arnold pulled liquor the victim the counter used pulled behind and towels paper try stop bleeding. The victim was unarmed. 3, 1995, Duy murder Vu May

5. Vu, Defendant was found not of the murder guilty who was Duy shot and killed at a Laundromat in Westminster on May 1995. 6, 1995, murder May Tuan Pham

6. 6, 1995, Pham, On Tuan of the May member was murdered Cheap Boys, at the corner of Brookhurst Street and Westminster Boulevard Garden Grove. before 9:00 Robert Shortly evening, and p.m. Wayne Murray his girlfriend were their toway on dinner. He a red stopped his van for light the left Pham, turn lane on Brookhurst at the intersection with Westminster. him, vehicle, around, who was car behind driving the out of the got got spun back in the car and backed almost another up quickly, colliding with car. Pham out car got again, gun, holding white Honda approached in the lane next to van. Murray’s Defendant sometimes a white drove Honda. Honda, As Pham Murray saw that the approached driver the Honda Honda, to his chest. holding gun As Pham approached driver of the Honda reached out and fired three shots him. A in the Honda passenger fire, also and Pham fired back. A opened rear of the person standing to Honda fired a at the Honda. As drove shotgun Murray away, going wrong lot, Street way Brookhurst over the curb driving into a he parking heard shots then a blast from a multiple shotgun. many As as 12 shots had been fired. later Murray found two bullet holes in van. When the intersection, the white shooting Honda drove from the stopped, slowly from swerving side side. The rear window had been shot out. intersection; Pham dead in the been lay had shot twice in back and once in the head. Police found a shotgun” handgun and a “stashed “pistol grip inside of some of the bushes” nearby. a as from photo lineup later out defendant’s photograph

Murray picked Honda, Murray to the driver of the white but who looked “close” someone that he identification.” testified at trial Murray not “make any said could driver of the white Honda if he saw him he would recognize did not think again. investigation

7. Subsequent 23, 1995, Grove Police Officer Mike Smith at 6:48 Garden p.m., On May Amarillo He three men enter Drive in Westminster. saw went men were identified as away. and drive Two later silver Ford Escort Escort, an over the silver When Family. pulled members of Nip police seat, height who the same in the front was passenger roughly Asian male defendant, ran away. in some bushes near a Colt .380-caliber revolver dog

A located police fact that the reacted dog was last seen. The fleeing police where the passenger it. tests showed recently that a had held Ballistics meant gun person car Tuan Pham had a bullet recovered from the that the Colt had fired pistol when he killed. driving been and the house at a warrant searched

On that same obtained day, police It a five-bedroom house rented Tam Nguyen, 13401 Amarillo Drive. was four and rented out the other bedrooms who one bedroom occupied .357-caliber rifle found two pistols, between and 10 Police eight people. AK-47, Dinh for ampicillin from Dr. Dinh Van to an and similar prescriptions for for “John Huy Nguyen.” Pham and cephalexin defendant, who used at trial that he had treated Dr. Dinh Van Dinh testified and arm. to his hand John for wounds May the name Nguyen, earlier and days his five cleaning shotgun Defendant had said he had been had the antibiotic it. Dr. Dinh discharged prescribed friend had accidently infection. prevent cephalexin 25, 1995, arrested Police Detective Mark Nye

On Westminster May Dr. Dinh. Defend- when he arrived for medical appointment wounds elbow consistent with right his left hand and ant had injuries caused aby shotgun. when Tony was Alabama defense that he

Defendant testified his own Nguyen His sisters Nen Phuong were shot. Huy Nguyen Nguyen when Sang denied been having present Defendant testimony. corroborated was shot. Huynh killed or when Khoi Duy Vu were Nguyen killed, admitted been in white having Honda when Tuan Pham but said he was unarmed and in the backseat. sitting Penalty Phase

B. that stipulated defendant had been of parties convicted assault with a Tran, firearm in (a)(2). violation section subdivision Cai Thi the mother of murder victim testified her Sang son Nguyen, “good kid” who “liked to draw She described the pictures.” impact her son’s death on her and her family. sister,

Defendant’s Nen testified for the Nguyen, defense that when defend- old, ant was and six she her fled years siblings Vietnam and traveled to Thailand on a boat. After fishing held Thai being by days and police spending two months in a came the refugee they United States. camp, defendant, Francis Crinella

Psychologist interviewed administered psycho- tests, and determined that logical defendant was and intelligent showed no signs of brain He was damage. “somewhat compromised his use and English had math skills of an language” grader. eighth

II. Guilt Phase Issues 5, 1995, Issues Related A. February Murder Sang Nguyen testimony 1. Expert

Over defendant’s the trial objection, court permitted prosecution’s gang expert testify most common given excuse reluctant witnesses at by the scene of a gang crime committed in a restaurant did not see they because were in the anything they bathroom. Defendant argues convictions related to the murder of be must reversed because Sang Nguyen this violated Evidence Code sections 801 352 as well as federal witnesses, constitutional to due rights confrontation of process, trial unbiased and freedom from jury, cruel and unusual punishment. of the

Sang Nguyen, member shot Boys and killed on Cheap gang, 5, 1995, February outside Khanh Restaurant in Westminster Dong Vu, where he was having dinner five Linda Binh companions: Trieu Tran, To, Trieu Hai Nguyen, Binh Nguyen, Amy Bich Pech.

When Westminster Detective Mark arrived at the scene after Nye shortly all five shooting, dinner denied companions witnessed the shoot- having Two of ing. them said were in the bathroom it they when Trieu happened. told he was Nye member of the Detective Boys,

Binh Nguyen, Cheap bathroom he heard two to the table from when restaurant’s returning Vu, shots, Linda of a female that he did not see who shot member Sang. but confirmed Trieu Binh Boys, Nguyen associated with gang Cheap heard as did Bich gunshots, in the bathroom when she Binh Tran were both shooting denied seen the or the shooter. Amy To and Pech. Vu having call Detective received a shooting, Nye telephone Two months after the and Khoi a “core member” and “shot-caller” from Trieu Binh Nguyen Huynh, Khoi was a victim of the on March Huynh shooting of the Cheap Boys gang. call, Trieu told Binh three-way Nguyen 1995. During telephone into the had seen defendant and two other men walk Nye Detective outside, hit shoulder and asked him to Sang go restaurant. Defendant he shot where him. 23, Detec- three Trieu Binh called

On about months after August Nguyen with her in a interview changed tape-recorded tive Linda Vu Nye, story she shooting, another detective. She said that before the Nye Detective recognized the window and him from through prior had seen man peering man, outside, “struggle” She then saw walk with the Sang encounters. interview, Vu defendant’s heard the the out During picked then gunshot. had the through the man who looked lineup from as photograph photo and later Sang. window shot trial, Pech, for retracted their

At all the dinner except Amy companions, Binh Trieu night shooting. initial statements about what happened that he lied in the bathroom and being testified that he had about Nguyen had Binh Tran. While he was outside gone outside smoke with actually restaurant, defendant, men, other in Sang two shoot saw accompanied he had night the head. Trieu Binh lied on Nguyen explained “confused,” and “frustrated.” he had been shooting “depressed,” because Vu also the shooter. Linda identified on Asian gangs. called Detective as an witness expert prosecution Nye for he had officer Westminster Detective testified that “been a Nye police contact hundred 12 which time he had “made with several years,” during over He 300 hours a thousand members.” had “over or close to probably gang in on Vietnamese gangs, emphasis advanced officer with training particular matters, a gang Detective testified that Nye Asian street other Among gangs.” “rat” be “severely who is and may member talks to considered police beaten, if not killed.” cross-examination, told Detective testified that Trieu Binh Nguyen

On Nye from the bathroom him on the of the crime he had been returning night when he heard and did not gunshots witness the murder. Linda Vu confirmed that Trieu Binh and Binh Tran had Nguyen been in the bathroom when the murder occurred. Vu said she had ducked under the table when she heard the and also did not gunshots see the shooting. examination, redirect

On over defendant’s objection, asked prosecutor Detective based on Nye, his background, training, to name experience, the “one common thing seem to when people say they don’t want to with . . . when crime you to ... a cooperate you go scene where a crime gang involved, like a answered, or a homicide.” shooting Detective Nye “Usually say they didn’t see anything.” The then prosecutor asked what is “the most common excuse of [why] didn’t see they Detective anything.” Nye answered, “In my experience in the investigating gang crimes cafes and ” restaurants, the number one answer is T was bathroom at the time.’

Defendant claims Detective Nye’s testimony “was outside the scope permissible expert testimony.” Detective Although as a Nye qualified gang expert, disputed testimony was based observations upon personal scenes, at numerous crime gang-related not his and it expert thus is opinion, admissible if it is relevant. (People (1995) v. Champion 9 Cal.4th 93], 921-922 P.2d Cal.Rptr.2d overruled on another ground v. Combs People Cal.4th 101 P.3d 1007].) Detective Nye’s about the testimony most common excuse given by reluctant witnesses at the scene of a gang-related crime is relevant because could infer from it that the witnesses this case were reluctant to testify initially fabricated the that story did not they witness the murder. Code, (See evidence, Evid. 210 ‘Relevant evidence’ § means [“ including witness, evidence relevant declarant, to the a credibility of or hearsay having any in reason tendency to or prove fact that disprove any is of disputed to the determination consequence action.”].) Defendant that argues Detective Nye’s testimony was inadmissible because it “was two premised upon implicit at the propositions”: scene of persons a gang-related crime who claimed to be in the bathroom were and that lying were they lying because did they not want to with the cooperate police. defendant, to According these two are propositions because problematic “each involved an untenable claim of the to ability assess and/or credibility to minds, read . . . neither involved matters or ‘perceived by personally ” known ... or made known to him at or before testimony],’ and both [his were “too unreliable ... as basis for an But Detective expert opinion.” Nye’s statements described the common behavior of witnesses to gang- related crimes and did not to assess the purport veracity individual witnesses. Detective stated Nye that in his witnesses at a experience, gang- related in a shooting such public as restaurant often claim that place they did not see anything because had been in the they bathroom. testimony if we were to construe Detective Nye’s expert

Even 801, Code lacks merit. Under Evidence section argument defendant’s opinion, (a), an offer an to that is may subject expert opinion subdivision “[r]elated common would expert sufficiently beyond experience opinion People (2006) In v. 38 Cal.4th the trier of fact.” Gonzalez assist [44 237, 649], a testified that witnesses 135 P.3d police gang expert Cal.Rptr.3d reluctant because of fear of testify crime are usually gang-related retaliation, earlier truthful and that is “the witnesses why might repudiate (Id. 946.) at that the defendant was the shooter. We held statements” p. of the kind of testimony regarding this “was testimony quite typical expert (Id. that a court has discretion to admit.” culture and gang psychology of a street would intimidate who 945.) gang “Whether members persons p. that or a rival gang sufficiently beyond a member of testify against could believe court reasonably expert opinion common experience (Ibid.; v. Ward (2005) 36 Cal.4th People assist the see jury.” would officer testify 114 P.3d [police permitted Cal.Rptr.3d 717] “witnesses, are often reluctant identify even those from rival gangs, The trial court safety”].) members out of fear for their against gang testify if it had concluded that here would not have abused its discretion gang-related shootings sufficiently bathroom excuse used witnesses by common to allow admission under Evidence Code section beyond experience 801. that Detective was inad Nye’s testimony further argues because value” of “any under Evidence Code 352 probative

missible undue effect.” Such evidence “was its vastly outweighed prejudicial Bryant, (People for abuse of discretion. claims are reviewed on appeal Smith, 334 P.3d and Wheeler 60 Cal.4th within does not show 573].) any This claim fails because defendant prejudice exclusion 352. “The which of Evidence Code section meaning prejudice is not the section 352 is to avoid designed of evidence under Evidence Code relevant, highly to a defense that flows from naturally or damage prejudice to is guilt evidence. evidence which tends prove prejudicial probative ‘[A]ll evidence, the more it is case. The the stronger to the defendant’s damaging Code section 352 referred to in Evidence “prejudice” “prejudicial.” bias against tends to evoke an emotional to evidence which uniquely applies which little effect on issues. very as an individual and has defendant synonymous Code section “prejudicial” In Evidence applying ’ ” Karis 46 Cal.3d (People Cal.Rptr. “damaging.” witnesses at 1189].) that reluctant Nye’s testimony 758 P.2d Detective claim did they in a restaurant commonly the scene of a crime committed gang to had no tendency were in the bathroom they not see because anything defendant. evoke an emotional bias against Detective admitting Nye’s if the trial court had erred in even

Finally, Pech have been harmless. All witnesses but Amy the error would testimony, bathroom, in the initial statements about been both having retracted their and Linda Vu identified defendant as the who shot person Trieu Binh Nguyen Nguyen. Sang instruction Evidentiary rulings limiting

2. of the trial court’s as well evidentiary rulings, several challenges a to Code refusal to instruction Evidence give jury limiting pursuant as its He contends that these errors violated his federal constitutional section 355. defense, a testimony to due rights process, present compel witnesses, him. and to be confronted with the witnesses against

First, that the trial court erred argues sustaining objection witness Tin Due Phan because it to a defense counsel asked defense question hindered defendant’s efforts to establish the existence of a to frame him plan for the murder of At the of the session on Sang Nguyen. beginning morning 16, 1998, June defense counsel that would finish the defense predicted several Near the end of the day case witnesses. following by calling defense case that same defense counsel announced outside the day, presence call a Due Phan. The he would as witness Tin prosecutor counsel had 48 hours defense complained promised provide “reports witness,” before but before she had received a calling only day report had on In a defense interview of Phan that taken 1997. place September earlier, a few had shown Phan that minutes hallway prosecutor report, and he denied attributed to him that “the are making Boys quote Cheap them are ratting because it’s to rat on since setting up Nip Family okay they on us.” Phan told the “wouldn’t lie to set Boys prosecutor Cheap decide Defense counsel stated that he needed some time to somebody up.” Phan “in view of the recent whether to call as witness prosecution’s interview.”

Defense counsel later decided to call Phan as a witness after the court ruled that a misdemeanor Phan could not be used to charge against pending bench, him. At the said she understood defense prosecutor impeach we talked about.” Defense counsel was cover only “going paragraph counsel Phan then testified that he had been a member of the agreed. Cheap had been from Phan that he interviewed Boys agreed 1995. 19, 1997, he did not “remember defense but said investigator September he had what we talked about.” Defense counsel then asked Phan whether investigator’s made several statements attributed to him in the defense report, “that the were Boys whether he had told including investigator Cheap them, since they’re ratting because it’s to rat on setting Family okay up Nip answered, remember.” on us.” To each Phan “I don’t question, counsel then asked whether Phan knew an individual named Defense Lap Phan he did. When defense Phan whether he said counsel asked Nguyen. knew that “was accused of Nguyen shooting,” Lap prosecutor objected and at the bench: “I could have sworn we said that’s and he why approached to the only said Defense counsel specifically going paragraph.” “I told I wasn’t to ask that. This is this is the replied: you going Lap Nguyen, that him off because this is this guy pisses Cheap Boy, Ky Nguyen Nip in a is incident. off this war.” Family ratting Cheap Boy separate Setting The court sustained prosecutor’s objection.

After Phan finished his and the had been testimony excused for the the court that defense counsel had exceeded the morning, explained scope had to and to an area agreed “sought into that questioning parties get to,” the district had an but offered that if attorney objection defense counsel it, “still into we can talk about it.” Defense get counsel explained want[s] that his of what started “this retaliation war” that understanding ratting Nip member testified in Family Ky Nguyen member Cheap Boys Lap shot him. Defense counsel “wanted to if’ Phan knew Nguyen see explore had been accused of murder. counsel Nguyen Defense Lap attempted that his had not asked Phan so he acknowledged investigator this question, did not know what Phan’s answer be. The court that it did might responded not “mind but noted that Phan had been inter- you pursuing theory” 19, 1997, viewed on which had defense counsel September given “adequate time to all the that this can And if give you. witness explore parameters don’t have in a you it statement that counsel you’ve given during opposing interviews, Pm your counsel that. going permit pursue Especially when don’t you know what answer is to be.” going the trial court concluded “that argues erroneously defense had failed in its and then its discovery obligations” “compounded error as the does not by using testimony sanction.” This preclusion describe trial court’s The trial court did not accurately ruling. impose Rather, the trial sanction. court sustained an to a discovery objection question asked defense counsel. v. Zambrano People

Defendant cites 41 Cal.4th 4], “need not 163 P.3d which held that prosecution extract all information from a citizen is a who possible private potential here, witness in order to disclose it to the defense.” But the trial prosecution court did not fault defendant for to determine whether Phan knew that failing had been trial court held that accused of murder. The Lap Nguyen attempted defendant could not ask Phan this for the first time on the witness question stand without first him on this interviewing subject providing report this interview to the prosecutor. mode of shall reasonable control over the interro

“The court exercise 765, Code, (Evid. (a)) . subd. and need not a witness . .” gation permit § to more than a fishing of a witness that amounts nothing examination 818, (Schreefel Okuly Cal.App.3d Cal.Rptr. expedition earlier 402]). had interviewed Phan nine months but investigator A defense he had been accused of Nguyen did not ask him whether knew Lap declining The trial did not abuse its discretion in to murder. court attempted time counsel the witness that for the first at question defense ask permit trial, agree would have had the effect of the circumventing parties’ which the notice of ment that defense counsel would advance the give prosecutor event, he In defendant cannot demonstrate any evidence planned present. the because before us from court’s the record does resulting ruling prejudice witness answered the not reflect how the would have question. erred evidence argues

Defendant next that the trial court in of a excluding or “crash the such evidence by used because meeting pad” Cheap Boys place the . . . that it would have been at such theory would have “defense supported that an was reached to the meeting agreement falsely finger point he elicit allowed to the acknowledges “was [defendant].” ” generic definition of ‘crash but contends was not allowed show pads’ Vu, a crash that Linda Boys pad themselves had such Kevin Cheap Lac, Khoi crash But Huynh themselves frequented Cheap Boy’s pad. belies that the court erroneously precluded record defendant’s assertion him introducing from evidence that the used a crash Cheap Boys pad below, As each of the trial court’s evidentiary meeting place. explained rulings proper. 27, 1997, member who was

On Khoi shot May Cheap Boys Huynh, Rack and hall on testified outside of the Cue March on pool 14, 1992, cross-examination that he had been contacted May police outside of the Mission Control video arcade. When defense counsel asked had been whether the terms of Huynh violating prosecutor probation, others, that the the rule objected on the violated ground, among question People v. Wheeler (1992) 4 Cal.4th 295-297 938], 841 P.2d misdemeanor convictions for im- limiting use prior The court asked to to counsel outside the peachment. presence speak jury. Huynh

Defense counsel that he was not explained impeach attempting that Huynh he was on but rather to show by showing probation trying frame “Khoi’s charged high up hatched a defendant for crimes: plan . And whole about this case is none hierarchy. my . . Boys theory Cheap 11, 1995, arise until after this March against Nguyen accusations Lam that he’s Khoi down. And our Huynh theory shooting goes this, mastermind behind talking other and a getting people campaign who to come going going liars are in and wrongfully accuse our guy some of these that took and murders on on place May 6.” May

The court was not convinced: “Trying probation violation is not prove admissible under Wheeler the cases that follow from that. So I’m what, fact, do, concerned that that’s you’re the law does trying although it.” Defendant “If the court’s permit acquiesced: concerned about violation, I won’t into the fact that he is in the probation get area with known and I won’t refer to it as a Cheap Boys, violation if probation that’s concern the court.” in, Later the same before the called defense counsel day, mentioned “a crash in El Monte.” The up court “What have pad replied: you identified be areas. I make a just might can’t definitive decision at permissible this I’ll ask don’t into area. stage. you go this This is simply something we need to have some time to discuss . . . .”

The next counsel defense mentioned crash evidence but day, again pad Honor, did not I court for “Your don’t know whether press ruling: you now, want to wrestle with issue I know this on the back burner you put 29, 1995, with Khoi the same El but it’s Monte crash on Huynh, pad January six before the ... So I it days shooting. know on the back burner you put with Khoi. If want me to continue it on the back The you burner?” putting court onit the back burner.” replied: “Keep

The court denied defendant’s offer of proof beginning 8, 1998, afternoon session on June but to “revisit this area once promised before final had offered again making any rulings.” Defendant to prove 29, 1995, murdered, before El January days Nguyen six Sang Monte Police raided a Khoi crash and found Department pad Cheap Boys and Linda a “whole Huynh Vu with bunch of members” Cheap Boys gang and “two magnums.” loaded .357 Defendant asserted this evidence was relevant is “where because the crash a bunch pad Cheap Boys get together and discuss and who their next to be and gang target going things politics like that.” The had court asked whether defendant “evidence of statements 29th, that were made between these on January individuals ‘95.” Defendant “no,” evidence, answered and the court excluded the adding: things “As defense, area the course of we’ll revisit this develop during presenting your once before final again making any rulings.”

Detective on cross-examination that crash is “where Nye pad testified members hide out and other gang fugitives criminal congregate, plan activity, wanted from runaways, hold or stash other evidence persons, weapons bench, asked to the court counsel then approach crimes.” Defense thing evidence of “the in Pasa- ruling excluding that its reiterated previous later . . . still holds and review subject during dena in of ’95 January case.” of your presentation revisited the issue of the El Monte crash

The court later pad: El crash of ’95 January “The of the Monte subject pad keeps Court: but, it I make the I ruling, time I visit same coming every always up, So, the I can make from offer of your be best out missing something. might is, and at a together they’re from the got the troops opposing gang proof to what testified do at things Nye gangs crash and similar they’re doing pad But, want take it one further that somehow another crash to pads. you step with, I and came their identification of client? together guess your they got up Well, discussed and what’s they gang politics going “[Defense Counsel]: And, know, the I don’t know when this jury. you Cheap on. That’s out before the Kevin Lac’s and the Huynh’s, was hatched between Khoi Boy conspiracy Yu’s, at at some in time crash somewhere.” point pad, Linda but some the of the Boys Defense cocounsel added that beginning Cheap conspiracy there in Monte.” The court ruled: I very “could well have El “Okay. happened time. It . . . .” change ruling wanted to hear one more doesn’t just my case, counsel whether trial Near the end of the defense defense checked ruling” admitting January court had made a “definitive on evidence had, raid crash El The court confirmed that it on the in Monte. pad instincts were well taken.” saying: “My that the trial court erred in evidence of the excluding

Defendant argues it was Boys 1995 raid on crash because relevant January Cheap pad had Khoi and a crash and that Boys actually pad Huynh show the Cheap there the same time. This was Linda Vu had been at evidence marginally relevant at The raid on the El Monte crash occurred well before the pad best. trial frame defendant. The Boys allegedly conspiracy Cheap began this on the court did not abuse its discretion evidence excluding ground it of time would consumption that would necessitate undue and confuse Code, limited (Evid. in a its value. issues manner outweighed probative 352.) § trial erred in excluding impeachment

Defendant next court argues with Binh when she recanted Nguyen evidence that Bich To Trieu living her Nguyen, her the crime that Trieu Binh statement to at scene police time, when To was had been in bathroom shot. boyfriend Sang called as witness for the defense and testified that she and Trieu Binh had been from Texas. To Nguyen visiting Bich testified that she lied had told when she at the scene of the and police crime he Tran Binh were in the bathroom when was shot. she Sang She said feared that she had told the truth that have night, police might Trieu Binh prevented from Nguyen to Texas. returning earlier,

Bich testified that a To few weeks she had to the spoken prosecutor telephone that her statement explained was false. police Before to the had talking To prosecutor, Trieu Binh but spoken Nguyen had not discussed her murder, To confirmed that after testimony. she remained Trieu Binh “for a Nguyen’s girlfriend time” but denied period that she saw him on a basis could not recall regular how often she saw him. She denied ever discussed the in her having change testimony Trieu Binh Nguyen.

Defense counsel asked the bench and approach explained understood that To and Trieu Binh had Nguyen had a child together wanted ask To whether that was true in to order her impeach testimony she had not seen Trieu Binh after The Nguyen regularly murder. said did she not believe that true. prosecutor At held outside hearing To presence jury, denied had a child having with Trieu Binh court, The Nguyen. back jury brought into but before questioning resumed, defense counsel asked to the bench and the approach again follow- ing took exchange place: If they were at the same living

“[Defense address? Counsel]: “The Court: No. Well, judge—

“[Defense Counsel]:

“The Court: The answer is no. won.” You

“[Defense Counsel]: excused, After To was defense counsel asked to again the bench approach and said he had been told by that To and Trieu Binh prosecutor Nguyen had been married. To was recalled as a witness and confirmed that had she been married to Trieu Binh for seven or months the Nguyen eight year before. During period, she saw him on a daily basis. that the trial argues refusing court erred defense permit

counsel to ask To whether she had living been at the same address Trieu counsel not defense permitting from prejudice But any possible Binh Nguyen. thereafter, when, counsel defense immediately was cured ask this question had married to Trieu that she been testify to have witness was permitted several months in 1997. Binh for Nguyen to instruct that Trieu the trial court’s refusal

Defendant challenges against he defendant because testify decided testimony Binh Nguyen’s for the friend” was introduced guy my that “the same killed he had heard of mind and not Binh state showing Nguyen’s Trieu nonhearsay purpose the matter asserted. for truth of noted, the scene of murder Sang’s had told

As Trieu Binh Nguyen police Later, the shooting. in the bathroom and had witnessed that he had been he seen defendant shoot and kill Sang. and said had he called police this, done “It explained: at trial he had why When asked prosecutor I went down from what happened, heard lot of friend my get point friend, I can’t it to a certain stand my get killed guy point same unless court instructs “Objection, Defense counsel objected: anymore.” therein. Other the truth of the matter asserted that that’s not for coming impermissible hearsay.” that I’m because it’s based objecting than trial court overruled the objection. to Trieu correct to admit the statement because it went

The trial court was People (2007) 42 Cal.4th Mendoza (See mind. Binh state of Nguyen’s 2].) Code section 355 states that 171 P.3d Evidence 697 [68 . . and is inadmissible . evidence is admissible ... one purpose “[w]hen the evidence to its shall restrict for another the court upon request purpose, the trial assuming But even accordingly.” and instruct scope jury proper instruction, the error did not failing give limiting prejudice court erred in Binh statement eliciting Nguyen’s because the of Trieu defendant purpose Trieu why The asked prosecutor was clear from question. prosecutor’s defendant, Binh not what Trieu against had decided to Nguyen testify Binh was Trieu charged. crimes with which defendant knew about other Nguyen friend” could not have had statement “the same killed guy my Binh Nguyen’s trial, and no at there is reasonable of the other evidence weight light much of the trial. affected the outcome that the court’s refusal to instruct probability 6, 1995, Murder Tuan Pham to the May Issues Related B.

1. Self-defense Tuan out of the murder of that the convictions argues arising be because the of death must reversed Pham and the resulting judgment law. Defendant claims that a matter of evidence established self-defense as is “there no for the . legal verdicts . . and the support jury’s convictions must be reversed for insufficiency evidence as a matter of Due Process under the Fifth and Fourteenth Amendments.” noted, Pham,

As a member of the Cheap Boys, was killed when he white Honda that at approached a red As stopped light. concedes, jury accepted prosecution’s evidence that defendant “was seated in the driver’s seat of the Honda Accord and fired one or more of the shots killed Tuan.” Robert Murray, the driver of the car next defendant’s, saw Pham carrying gun. testified approach Murray that just Honda, before Pham arrived at the driver’s window the driver pulled out a smile, and then “looked over at . . and gun me . a nice gave put here to his chest.” It gun right looked to as if the [the] in the Murray people Honda knew that Pham was must approaching: “[T]hey have known some- down, to come thing going about, because started to kind of they move know, you nervousness or you whatever would want to call it.” Murray surmised that the driver was for the move.” “waiting driver then pointed fired, gun Pham and and Pham fired back. off. Murray drove Pham lay intersection; dead in the he had been shot twice in the back and once in the head.

The court instructed the at length on self-defense: “The killing of another in self-defense is person justifiable and not unlawful when the person believes, one, who does the killing actually that there was reasonably imminent danger the other will either him person kill or cause him great and, two, that bodily injury; it under the for necessary circumstances him to use in self-defense force or means cause the death of the might other person death purpose avoiding great bodily himself. injury . . . To justify taking the life another in self-defense the [¶] circumstances [of] must be such as would excite the fears of a reasonable in a person placed similar and the influence position, must act under the party killing those fears alone.

“A threatened with an attack that person justifies exercise of the right of self-defense need not retreat. ... stand his person may ground [A] defend himself the use of all force and means which would to be appear necessary to a reasonable in a similar situation .... This person law applies even the assailed have though more person might easily gained safety by or flight by withdrawing from scene.

“The of right self-defense is available to a who initiated only person One, if he assault has done all of the he in following: actually has tried good two, faith to refuse to continue he has his fighting; clearly informed opponent and, three, that to he wants he fighting; has informed his stop clearly that he has opponent stopped fighting.

1044 a a is to who seeks quarrel not available person of self-defense right

“The of self-defense. exercising a real or necessity intent to create apparent with the a who in engages is available to only person of self-defense right “The One, has tried actually done all of the he following: if he has mutual combat two, has informed his clearly to continue he fighting; in faith to refuse good three, he has informed his clearly to fighting; that he wants opponent stop and, four, had his has fighting; given opponent that he stopped opponent fighting.” opportunity stop as self-defense a is that evidence established incorrect “ all is and establishes of the evidence uncontroverted matter of law. ‘[WJhere law held a matter of may a of self-defense it be finding the elements for however, of the evidence tends to where some justified; was killing a not be then the issue is a in which killing may justified show a situation ” v. Levitt (People of for the to determine.’ jury fact question (Levitt).) 500, in this jury Cal.Rptr. Cal.App.3d 276] concluded, evidence, that defendant have based reasonably case could was a Family, because the of which he Nip in mutual combat engaged member, with the of Cheap Boys, in an war engaged ongoing gang which Pham was member. self-defense, not this ‘mutual combat’ means used in state’s law “[A]s intention, to mutual pursuant one exchange of blows but

merely reciprocal consent, the initiation hostilities. ... In other or agreement preceding intention to combat, engage words, but the preexisting it is not merely it, (People v. Ross (2007) 155 must be mutual.” Cal.App.4th (Ross).) testimony of Detective light Nye’s regarding In Cal.Rptr.3d 438] Boys during Nip Family Cheap state war existed between these have concluded that reasonably could in question, period in hostilities whenever engage had a intention to preexisting rival gangs itself. opportunity presented also could have concluded defendant was

The jury reasonably Pham, because, he did not act on the shooting entitled claim self-defense Section alone also on a desire kill rival. basis fear but resisting any attempt that homicide is justifiable subdivision states “[w]hen 2 adds that homicide is to murder . . . .” Section subdivision any person . who of . . one person, against committed in defense justifiable “[w]hen endeavors, or commit surprise, intends or violence manifestly committed 198) “by will be (§ felony . . . “A bare fear” .” felony homicide; 2) not sufficient (§ justify subd. violence surprise”

1045 rather, “the circumstances must be sufficient to excite the fears of reason- able and the must have acted under the person, party killing influence of such (§ 198). fears alone”

Several have decisions in interpreted phrase “such fears alone” section v. Trevino (1988) 198. People 200 874 Cal.App.3d Cal.Rptr. [246 357] (Trevino) held that “an instruction which states act must party killing alone, under the influence of such fears (Id. is a correct statement of the law.” accord, Ye 879; v. Park at People (1882) p. 62 Cal. People 207-208.) v. Shade (1986) 185 711 held that Cal.App.3d Cal.Rptr. under section [230 70] 198, “self-defense is not available when a not act does out of fear person alone, but out of fear and a desire to harm (Shade, the attacker.” 716.) at p. in Levitt held that “a reasonable Similarly, Court of Appeal trier could that, have found even defendant had the assuming right use some force in self-defense, he was less than candid regarding degree danger he faced, actually and his was attributable response more to preconceived (Levitt, intent kill than to the actual supra, 156 danger.” at Cal.App.3d 510; v. Hecker see People (1895) p. Cal. 463 109 P. person [a 307] self-defense, in imminent placed danger may his slay aggressor but the “in must act faith to the person good sole end of his winning safety life”]; People Vernon securing his P. Cal.App. 737] was “a correct statement of the law” to interpret [it word “alone” in § to take the life of another in right self-defense to cases “limit[] where the act is under done the influence of fear of the danger designated”].) in Trevino clarified that

The Court of rule Appeal this does not “imply killed, who feels or even person anger hatred toward the never person may (Trevino, use force in justifiably deadly self-defense.” supra, Cal.App.3d 879.) would be p. unreasonable require absence any feeling “[I]t fear, than other before the homicide could be considered Such a justifiable. Instead, is not a requirement law .... part law requires act fear . . killing out of alone. . The party killing is not from party precluded fear, however, or other feeling anger emotions save and those other except emotions cannot be causal factors to use decision force. If deadly they are, the justified homicide cannot be on a of self-defense. But if the theory causation of the only was the reasonable fear killing that there was imminent of death or danger then the great bodily injury, use force in deadly self-defense proper, regardless of what other emotions who kills party (Ibid.) have been but may feeling acting upon.” Here, it was for the jury decide whether defendant acted out of fear alone when he shot and killed Pham. testimony that the driver of Murray’s the Honda held a to his gun chest smiled at Murray as waited Pham to is sufficient evidence to approach by support finding defendant did not act out of fear alone.

1046 court, he argued the nor has did trial argue not note that defendant

We based on acting been instructed the should have jury on appeal, cause fear was the but-for so as reasonable long mixed motives is permissible to consider whether no occasion to We therefore have decision kill. of his in Trevino or as interpreted with section 198 be consistent such a rule would “such fears alone” Instead, that the phrase defendant contends other cases. must act not mean that the person 198 does the end of section that appears to ‘the fears of reasonable fears but refers of such “plainly on the basis only ” to clear that “was meant make that this clause argues person.’ i.e., fears alone’— ‘such meet the ‘reasonable person’ ‘fears’ that only test — However, of the none as self-defense.” killing justify are sufficient to suggested by in the manner section 198 interprets cited above authorities defendant. was at one valid that even if there least in the alternative

Defendant argues claim, have his self-defense rejected the could jury under which legal theory relied on be the prosecution still reversed because must convictions contention lacks merit. theories. This several legal improper introduced, four of them— were alleges theories defendant Of the six motivation, self- combat, and contrived aggressor, initial mutual sole here, the was free to jury as presented valid legally defense —were suffi to of these theories was relating whether the evidence any determine v. United States (See self-defense claim. to defeat defendant’s cient Griffin 371, 46, term ‘legal 112 S.Ct. (1991) 59 L.Ed.2d 466] [“[T]he 502 U.S. law, concerning as to a mistake about the opposed means a mistake error’ evidence,” where, “for the action example, import factual weight Constitution, barred, time or fails to come is by is question protected v. Harris People crime.”]; (1994) 9 of the definition statutory within theory P.2d invalid [legally Cal.Rptr.2d 1193] Cal.4th 419 [37 not as a matter law “which, validly could jury, is if relied upon one v. Guiton offense”]; (1993) People charged a conviction support given of a [inadequacy 847 P.2d Cal.4th 45] . the facts do not state crime factual . . when merely theory “legal, statute”].) the applicable under theories were raised when remaining that the two

Defendant contends in the instructions jury to the jury language argument “exploited prosecutor’s ‘decent,’ ‘reason- only principles appl[y] so that self-defense suggest members,” and also able,’ and not to gang ‘basically good’ people the defendant was not available unless that “self-defense suggested had an believed he was in imminent but also danger not only reasonably assuming “prosecutor Even emotional reaction of fear danger.” amount law, an error would merely ... such some misstated arguably misconduct prosecutorial during argument, rather than trial and [citation] resolution case on (People v. Morales legal basis.” improper 34, 582, 25 Cal.4th 43 11].) 18 P.3d As Cal.Rptr.2d [104 defendant acknowl he edges, comments, did not at trial to object these prosecutorial nor did he ask trial court to modify clarify any relevant instructions. jury His claims regarding these comments are therefore forfeited. v. Mills (People 158, (2010) 153, 48 Cal.4th 276]; 194 226 Cal.Rptr.3d P.3d People v. [106 Jablonski 774, (2006) 37 Cal.4th 938]; 809 126 Cal.Rptr.3d P.3d [38 Morales, 44.) at p. defendant

Finally, relies matter that is upon outside the record to argue that defendant’s smile was irrelevant because non-Vietnamese ‘a persons, “[f]or ” smile Vietnamese means little and be person] cannot read.’ [of Whether or true, trial, not this is no evidence on this was admitted at point and we will not consider it for the first time on appeal. (People Jennings (2010) 50 v. 616, 684-685, Cal.4th fn. 34 237 P.3d Cal.Rptr.3d 474].) [114

2. Manslaughter Defendant that could be argues convicted of no offense greater than manslaughter Pham. v. killing Defendant first cites People Sanchez 17, 27, (1864) Cal. for the rule that a committed killing during mutual combat the offence from murder manslaughter.” “reduce[s] But Sanchez did not so hold. held that the trial court Sanchez refused to properly instruct “ follows; ‘When, sudden two upon quarrel, persons fight, one other, of them kills the this is if voluntary manslaughter; so they, upon occasion, field, such out and in a go fight for this is one continued act of ” (Id. 26.) at passion.’ p. This instruction was incorrect because ignores “[i]t combat, the doctrine entirely that in case of mutual in order to reduce the offence from murder to it must manslaughter, appear contest was terms, waged and no upon equal undue advantage sought was or taken by (Id. most, . either side . . .” at 27.) At p. stated in dicta that a killing Sanchez that results from “sudden is People quarrel” voluntary manslaughter. (See Lee 47, 60, 20 Cal.4th fn. 6 1001].) P.2d As v. Bush this court People acknowledges, held in (1884) 65 Cal. “ 590], P. ‘when mutual parties by in a understanding engage either, conflict with deadly and death ensues to weapons slayer guilty of murder ....’” Levitt for the rule that his offense could be no more cites also

than if he manslaughter acted with the multiple motivations of self-defense and a desire to kill. But defendant misreads Levitt. Levitt convicted was voluntary manslaughter and challenged his conviction on the ground “there was insufficient evidence of manslaughter record establishes (Levitt, 156 Cal.App.3d of law.” supra, as matter self-defense complete degree “if the stating that argument, 509.) rejected Court of Appeal p. aside from a belief in motivations by any used was influenced force self-defense, verdict manslaughter appropriate then act iri necessity justified to be for homicide completely In order alone. ground on that of a the fears self-defense, be sufficient to excite must ‘the circumstances under the must have acted killing and the party reasonable person, influence " the defendant’s held (Ibid.) only Levitt thus alone.' such fears evidence; Levitt did substantial by manslaughter supported conviction for and a to kill both self-defense who is motivated that a defendant not suggest than manslaughter. greater be convicted of an offense never may desire to kill instructions regarding 3. Jury self-defense refusing jury in to instruct the trial court erred that argues Defendant of regardless to all persons, of self defense applies equally that law “[t]he denied street The court gang.” of a criminal or she is a member whether he or argument. without comment instruction the proposed self-defense, saying at length regarding the jury trial court instructed The who does the unlawful when the person is “and not killing justified that a it was danger an imminent there was believes reasonably killing” great bodily of death or avoiding to use force “for necessary purpose a reasonable to “the fears of referred to himself.” The instructions injury must be danger that the in a similar and stated position” placed person the trial court instructed importantly, “a Most person.” reasonable apparent committed “[hjomicide not unlawful when justifiable jury added.) court’s (Italics . .” The of himself . . in the defense any person to all equally of self-defense applies left doubt that the law instructions no unnecessary. instruction was duplicative Defendant’s proposed persons. request erred in refusing the trial court also argues of jury its discussion During self-defense. on jury imperfect instruct determined “that there is instructions, that it had court announced the trial of or request instruct sua sponte upon the court to insufficient evidence for ” self-defense.’ what’s called the defendant as to ‘imperfect counsel for self-defense, of fact when the trier of imperfect the doctrine “Under actually, the defendant because killed another person that a defendant finds of death or danger great in imminent he was unreasonably, believed but thus malice and to have acted without defendant is deemed injury, bodily (In re manslaughter.” than voluntary crime greater can be convicted no 574].) P.2d Cal.4th Christian S. defense, as with perfect self-defense any trial court “[J]ust need give ‘[a] instruction requested concerning only defense there is substantial evi- if ” dence (Id. support 783.) at p. defense.’ could jury reasonably have found that the battle that gun resulted in Pham, the death of Pham when began who was carrying gun, approached the car that defendant was Just before Pham driving. arrived at the driver’s Honda, side window the Pham; out a pulled gun and fired at Pham fired back. Pham died at the scene after being shot twice in the back facts, and once in the head. Under these the trial court was correct that there was no basis for the to find that defendant jury believed he unreasonably in imminent death danger of or great If bodily injury. anything, evidence that such suggests fear was reasonable but jury, defend- rejecting self-defense, ant’s claim of concluded that defendant did not act out of such therefore, correct, fear alone. The trial court was declining instruct on imperfect self-defense. Defendant next argues trial court erred in “to instruct the failing ” sua

jury sponte legal meaning ‘mutual combat.’ The trial court instructed the right self-defense is available only “[t]he to a who in person engages mutual combat if he has done all of the following;

one, he has actually two, tried in good faith to refuse to continue he fighting; has clearly three, informed his that he wants to opponent he stop fighting; has clearly and, four, informed his that he has opponent stopped fighting; ha[s] given to opponent opportunity stop fighting.” Defendant relies Ross to upon argue the trial court to required combat,” define the term “mutual but Ross does not so hold. The defendant in Ross was convicted of assault and aggravated for the victim battery punching face, cheekbone, in the her fracturing after she him an slapped during argument. The trial court instructed the over objection, defense jury, defendant had not acted in self-defense if he had been in “mutual engaged deliberations, combat” with the alleged victim. During asked for a jury “ ” combat,’ legal refused, definition of ‘mutual but the trial court telling “to on the jury rely of ordinary (Ross, those words.” meaning supra, 1036.) at Cal.App.4th The Court of p. reversed the Appeal defendant’s conviction, “[tjhis ruling that left the free jury to suppose any exchange of blows both disqualifies from of participants claiming right self-defense” when in fact “the doctrine to a violent confrontation conducted applies only consent, to mutual pursuant prearrangement, or or express implied agree- (Ibid.) ment to fight.”

The of Court in Ross observed: “Like ‘mutual Appeal many legal phrases, combat’ has a vivid lies in the dangerously quality. danger power Here inaccuracy. jury and even ambiguity to mask language vivid conditionally participants bars the combat’ in ‘mutual told that participation the other.” assaulting if either is prosecuted self-defense from pleading trouble,” omitted.) “The (Ross, at fns. supra, p. Cal.App.4th When, is combat reasoned, for these purposes, from ‘mutual.’ court “arises in which one from combat ‘mutual’ combat What distinguishes ‘mutual’? (Id. at of self-defense?” right an unconditional retains the participants court erred that the trial 1043-1044.) concluded The Court of Appeal pp. meaning “the lay because meaning the common telling jury rely upon (Id. at legal the correct convey principle.” too of ‘mutual combat’ is broad 1044.) p. of “mutual” is definition with the common

Ross reasoned that problem as ‘mutual’ so as it is seen long described combat be “any may correctly then, ordinary In exchange. speech, or quality reciprocity possess two or between struggle describe violent might any combat’ properly ‘mutual B and punches A walks being. up it came into If more however people, ensues, be characterized the fight may warning, fight him without (Ross, supra, words.” in the sense those ordinary ‘mutual combat’ “ ‘a instead to Ross held that “mutual combat” refers 1044.) at p. Cal.App.4th or agreement, mutual consent by or continued begun duel or other fight words, it is not added.) In other or implied. (Italics express [Citations.]’ it, combat, intention to that must be engage but the preexisting merely Ross, omitted.) the decision in (Id. Following fn. mutual.” p. mutual combat “A fight to add in brackets: standard instruction was revised (CALCRIM agreement.” consent or continued mutual began when it 2008).) (rev. No. 3471 Dec. instruct the duty a sua

Ross did not hold that a trial court has sponte combat, that case that the trial court in but rather on the of mutual meaning the term. Ross relied clarify upon to jury’s erred the by refusing request for delibera- 1138, have retired jury the requires section which “[a]fter in the tion, arising of law any point if to be informed on they ... desire case, . . .” The Court of Appeal must be . given the information ... required jury the instruction that the defendant in Ross original had not attacked noted court’s failure combat, with the “We are more concerned stating: on mutual a the court for the asked after jury expressly to elaborate on the instruction the Code section 1138 cast upon combat. Penal definition’ of mutual ‘legal ‘ ’ (Ross, understanding.” to the jury’s ‘clear “mandatory duty” up’ court a to the court was Ross 1047.) obligated held that 155 at supra, p. Cal.App.4th ‘“ had jury combat” because the “exhibited] define the term “mutual ’ ” (Ibid.) meaning.” over the term’s confusion here, familiar “When, understood those commonly a ‘is as phrase to the sense peculiar not used in technical and is English language

1051 law, the court is not to give instruction to required its in meaning ” (People Rowland absence of a 238, v. (1992) Cal.4th request.’ 270-271 [14 377, noted, 897].) although Ross discussed potential 841 P.2d As Cal.Rptr.2d combat,” in term “mutual it ambiguity did not hold that a trial court has to sua it If duty explain to defendant sponte jury. believed the instruction or he “had the incomplete misleading, obligation request clarifying Rodrigues (People (1994) language.” 8 Cal.4th Cal.Rptr.2d (Rodrigues).) Moreover, 885 P.2d did not jury 1] that the trial request court clarify the of the term. The meaning trial court did not have sua to define “mutual sponte obligation combat.”

Defendant also argues the trial court erred in failing to instruct the jury sua or, “on sponte legal concept withdrawal” impossibility alternative, instruct, that if the trial court had no sua then sponte duty trial counsel was ineffective in failing to such a instruction. request jury Without citation authority, asserts that “it was error for trial court to have failed to instruct these doctrines who is the person [that initial aggressor engaged mutual do not where a apply combat] defendant, who be might otherwise deemed a mutual combatant based solely occasion, conduct occurring on an earlier upon is the victim of an attack that is so sudden that no perilous exists to decline or opportunity to make known to his adversary his willingness to decline the strife.” noted,

As there was no error in the trial court’s instructions regard self-defense, ing and if defendant believed the instruction was misleading, he language.” (Rodrigues, supra, “had the obligation request clarifying 1192.) Cal.4th Nor p. was trial counsel ineffective in failing request “ ‘ clarifying language. counsel, To establish ineffective assistance of “a defendant must first show counsel’s performance ‘deficient’ because his fell below an ‘representation objective standard of . reasonableness . . under ” ’ ” v. Weaver (People prevailing norms.’ professional 26 Cal.4th “ 103].) 29 P.3d is a “strong presumption ‘[T]here that counsel’s conduct falls within the wide of reasonable range professional ’ ” (Ibid.) case, assistance.” “In the usual where counsel’s trial tactics or record, reasons for strategic challenged decisions do not we appear will not find ineffective assistance of counsel on unless there could be appeal (Id. no conceivable reason for 926.) counsel’s acts or omissions.” For p. reason, this claims of ineffective assistance ordinarily of counsel “are best (People Williams raised and reviewed (2013) on habeas 56 Cal.4th corpus.” 630, 214, case, 1185].) 690 P.3d 299 In the Cal.Rptr.3d present “[t]he claim fails in the context this direct because the record does not appeal reveal whether counsel had a tactical reason for not plausible requesting v. Carter (People instruction . . .” (2003) 30 Cal.4th 1223 [135 1052 there could to 981]), and defendant fails show P.3d

Cal.Rptr.2d clarifying to a counsel not such request for trial no conceivable reason be instruction. instruct failing the trial court erred contends that further

Defendant that a argues theory he of fact. Specifically, or mistake on jury ignorance of self-defense his claim theory refuting or similar any combat of mutual were from the that his assailants recognized “unless appellant could not apply claims, court have the trial should he Boys gang.” Accordingly, Cheap if similar was theory “inapplicable a combat or that mutual instructed jury alternative, Boys.” In Cheap assailants were did not know his appellant instruct, then duty no the trial court had sua sponte that if argues defendant instruction. such a failing request was ineffective in trial counsel instruct, on defenses sponte, particular “A sua duty trial court’s ‘ defense, such a defendant on relying if appears arises it “only the defense is of such a defense and evidence supportive if there is substantial ”’ v. Maury (People the case.” defendant’s theory with the inconsistent 1].) P.3d Defendant 30 Cal.4th Honda of the white that he was in the backseat in his own defense testified he Defendant said wrong. something the driver indicated when a and saw someone pointing the rear window through turned and looked and stayed fired the shotgun ducked as the just at him. He shotgun person from the away until the driver drove gun the ensuing fight down throughout fact that he shot Thus, a mistake of defense rely defendant did not scene. were that his assailants he did not know victim in self-defense because Rather, shoot asserted that he did not Boys the Cheap gang. from that he did not cross-examination fact that defendant testified on anyone. gang did not know what shotgun recognize person support substantial evidence does not constitute was from person did not know that Pham Pham because he of fact defense that shot mistake gang. Boys was member Cheap testimony On’s

4. Admission of Officer testimony admitting court erred in that the trial argues flee from a man he saw Vincent On that a young Grove Police Officer Garden of defendant. looked similar a photograph car the officer had stopped killed, Grove 23, 1995, Garden after Tuan Pham days May On a silver Ford Oriental men” enter Mike Smith saw “three Police Officer Family. members of Nip later Two of the men were identified Escort. tall. to five feet five inches five feet two inches The third was man Escort, the unidentified passenger the Ford On over When Officer pulled in some revolver Colt .380-caliber A later located dog ran away. police bushes near where the fleeing was last seen. passenger Ballistics tests showed that the Colt fired a had bullet recovered from the pistol car Tuan had Pham been when driving he was killed. On

Officer was unable to identify fleeing passenger, he was saying only “male inches, a Asian” “about five feet two inches to five feet four thinly built, he later, and had a A light short time complexion.” Officer On was recalled as a witness and testified that 15 to 20 “approximately minutes prior” vehicle, Officer On had seen stopping of “picture named somebody Lam Thanh Officer On without Nguyen.” agreed, objection, based upon picture, fleeing “looked similar ... passenger Lam Thanh Officer Nguyen.” also that based agreed upon picture, believed at the time that the “could be fleeing passenger Lam Thanh Nguyen.” Defendant foundation, objected, asserting “lack of as to whether or not this he is picture relying upon is fact Mr. Lam Nguyen.” The court overruled the objection. Even if the trial court erred in this admitting testimony, the error could not have affected the judgment. Officer On’s that he believed at the testimony time that the fleeing could have been defendant passenger had little probative value. Officer On did not defendant as positively identify who fled person from the car or even that he testify currently believed defendant that, time, who fled from the He person car. at the merely agreed he believed that the fleeing passenger could have been defendant. 21, 1994, Issues Related to the July

C. Shooting Tony Nguyen of 1. Sufficiency evidence murder attempted of argues that the evidence was insufficient to convict him of the murder of attempted Tony Nguyen the related charge active participa- tion in a gang on aiding abetting theory.

The evidence showed that defendant was a in the backseat passenger car driven woman young named Tran. A man My Nghia named Phan Grove, was sitting in the front seat. At an intersection in passenger Garden the car started following a car driven by which carried several Tony Nguyen, members At Boys one the car in which Cheap gang. point, car, riding passed Tony’s and defendant and the other stared passengers back at car. The car in which defendant was then idled in the riding restaurant, lot of a fast food parking with its like “all out occupants looking restaurant, and stuff.” After car the other car Tony’s passed out of pulled later, parking lot followed. Several blocks the two cars next stopped to each other at When the signal traffic turned Phan shot stoplight. green, Tony Nguyen in neck before the car Phan inwas drove A few away. days 1054 Lac, of the Cheap of Yinh Kevin one

later, to the defendant went apartment and asked by Nguyen, in car driven Tony had been the members who Boys that he had said him, the Lac assured defendant cops?” “What’s with up but, trial, the as the in identified defendant person the nothing police the behind the shooter. car sat in backseat other who on his testified based gang expert, the Nye, prosecution’s Detective in Orange Asian members gang “several thousand” interviewing experience members, Family 40 and 50” between including Nip “somewhere County, Instead, a “turf.” with not to be associated particular Asian tended gangs for their rivals.” community hunting around the “go place from they place the and in they’re “if not the shooter they’re explained Detective Nye a car, be to serve as a member would expected of the gang back seat” lookout, would have to bail out were to and something happen they and “[i]f Be it car, be to back that up. would expected person of the member the take over the of driving it shoot be it somebody, somebody, be assault vehicle, at the time of Detective also testified that may Nye whatever it be.” war, a and were in of Cheap Boys the and the state Family the shooting, Nip with gunfights to be able engage both were gangs expected members of “at a notice.” their rivals moment’s a he or the commission of crime when aids and abets

“A ‘person she, of of unlawful the (1) knowledge perpetrator; with purpose acting or encouraging, facilitating of (2) committing, and the intent or purpose aids, offense, (3) encourages act or advice promotes, commission ” (1997) 15 (People of crime.’ v. Marshall the commission instigates, 84, 1, 262].) P.2d be guilty attempted 931 Cal.4th 40 Cal.Rptr.2d “[T]o [61 abettor, encouragement a aid or give as an aider and must person murder kill with the intent to and purpose of the direct knowledge perpetrator’s killing— the intended accomplishment the direct facilitating perpetrator’s an aider and murder as attempted that the person guilty which means 613, (2003) 31 Cal.4th 624 (People to kill.” v. Lee abettor must intend 176].) 74 P.3d Cal.Rptr.3d of a crime abetted in commission has aided and

“Whether person which may ... ... the factors Among of fact. ordinarily is question [¶] [¶] are: abetting determination of making aiding be considered in crime, conduct before companionship, at the scene of the presence (1976) re G. (In Lynette Cal.App.3d after offense.” “ ‘ 898], omitted.) of the evidence sufficiency “When citations Cal.Rptr. light record the court must review whole challenged appeal, whether it contains substantial determine judgment most favorable i.e., which and of solid value—from evidence that is credible evidence— defendant guilty beyond have found the rational trier of fact could ”’ reasonable doubt.” (People (1998) v. Hill 17 Cal.4th 848-849 [72 673].) P.2d “Evidence of a defendant’s state of mind is circumstantial, almost but inevitably circumstantial evidence is as sufficient as direct evidence to a conviction.” support (People v. Bloom 48 Cal.3d 1194, 669, 698].) 1208 774 P.2d Cal.Rptr. [259 the evidence here in the

Reviewing light most favorable to the judgment, we conclude that there was sufficient evidence to defendant’s support convic- “ tion. defendant’s ‘mere Although alone at the presence scene of the crime is ” “ not sufficient to a make participant,’ presence [him] in car be ‘may be can considered by [a] with the jury circumstance[] other evidence ” in on his passing guilt innocence.’ v. (1969) Durham (People 70 Cal.2d 171, 262, 198].) 181 P.2d 449 in Cal.Rptr. [74 car which defendant was car, lot, in riding passed Tony’s waited a and parking then out to pulled the other car. Defendant pursue stared back at the of car occupants Tony’s one later, car the other. A few passed Nghia blocks Phan fire from the opened front seat of the in car which defendant was Several after the riding. days Lac, car, shooting, visited who had been riding Tony’s and asked “What’s with the up cops?” Considering this evidence in the context of the war ongoing between gang Nip well Family Cheap Boys, as as the Asian gang practices described by Detective Nye, could have jury kill, inferred that defendant knew Nghia intent, Phan’s intent shared that and aided Phan by spotting potential targets.

Although evidence “gang standing alone cannot a defendant is prove an aider and abettor a crime” (2014) v. Guillen (People Cal.App.4th 934, 703]), Detective Nye’s expert testimony strength [174 ened inferences arising from other evidence to defendant’s role in the specific crime at issue. other Among Detective things, Nye described how Asian gang members in County rivals,” would Orange drive around for their “hunting and he that the explained Nip Family were in state Cheap Boys already a at the time context, war of this shooting. Understood in that defendant’s act of at the staring occupants Tony’s car—followed his car’s by maneuver out in and of the restaurant parking lot—could have the inference supported that defendant was aware of the impending acted to facilitate it shooting by members identifying Cheap Boys riding in car. Tony’s into the

Appellate inquiry the evidence “does not sufficiency require court ‘ask it itself whether believes evidence at the trial established Instead, guilt beyond reasonable doubt.’ the relevant question [Citation.] whether, after viewing the evidence in the light most favorable to the any rational trier prosecution, of fact could have found the essential elements of the crime beyond (Jackson (1979) reasonable doubt.” v. 443 U.S. Virginia words, 2781].) L.Ed.2d 318-319 99 S.Ct. In other “it is the convinced of the defendant’s which must be court not the appellate jury, Cal.Rptr. 46 Cal.3d . . Bean (People . .” guilt close, the record here contains the issue is 996].) Although 760 P.2d could have found reason- beyond which the evidence from substantial intent to kill Tony shared Phan’s knew of and able doubt that defendant was also sufficient This evidence shooting. and acted further Nguyen ain gang. for active related conviction participation defendant’s support VinhKevin Lac 2. Impeachment of evidence excluding proffered trial court erred argues Lac, who identified of Vinh Kevin testimony the defense to impeach of the car from which Phan Nghia in the backseat

defendant as the person these errors violated his federal Defendant contends that shot Tony Nguyen. defense, a the compel to present to due rights process, constitutional witnesses, and to confront adverse witnesses. testimony the seat of car driven he was in the front sitting passenger Lac testified that the car from which Phan sitting the in He by Tony Nguyen. thought person familiar, that days it not until a few later but was shot looked Tony Nguyen defendant, he building lived in the same apartment who he realized it was the court as the backseat person did. defendant in Lac identified car. shooter’s cross-examination, shot and that after was Tony Nguyen Lac testified

On not Lac said he did away. a Lac out and walked got the car came to stop, had been with Truong whether who Nguyen, have a and did not know gun car, asked whether Lac was “aware in the had a Defense counsel gun. him he a Lac said there that saw somebody gun.” that there are witnesses out know,” answered, “I when asked whether don’t was not aware of that and the truth” if so testified. they “be or lying telling those witnesses would witness, the recess, the and the court a presence outside During him “the start you putting counsel that questions commented defense “so The court a were far afield.” seeing gun” a and other gun about people like that.” Defense counsel things don’t drift into expressed “hope you “No, my that was the extent of questions.” assured the court: later, of the jury outside the objected presence Several days prosecutor Tony to establish that someone from to call witnesses defendant intended gun. scene Defense running away carrying car from the was seen Nguyen’s he he didn’t have a didn’t gun, Lac testified that counsel “Kevin responded: obviously He’s testimony. his impeaching see And it’s used any guns. evidence would retorted that the proffered himself.” The prosecutor perjured not “show and would gun” Lac had gun “show Kevin saw came from the gun victim’s car.” The court conducted a hearing out “find whether can the foundation what as to lay [the defense] [the saw.” witnesses]

Alicia testified at the that she had heard Trujillo hearing shooting ran out to the front of the medical office where she worked. She saw Tony car at the curb Nguyen’s and “witnessed a stopped gentleman, a young guy, run across the window with a in his hand.” She did not weapon know where come carrying gun had from. person Hunt testified

Carolyn at the that she had been hearing also in the working office, but she did not see anyone carrying gun.

Laura came into front Hughey office after the shooting “saw his, believe, man young Vietnamese I late teens come from the running area of the car that was involved in the accident where man who young shot, window, was . . . and as he was in front of the running putting inside front large pistol pants.”

The court concluded that none of the three could witnesses where the say the gun had come from: “it person carrying would have be a guess where that from.” anybody’s part coming The court mled: “I will person reference to a a preclude any seeing in view of person running weapon the we have [hearing] conducted here.”

The another held the of following day, hearing was outside the presence at which Gene testified that he been a jury Melancon had the patient medical office the and looked out when he the window heard He shooting. saw car to a Tony come A man out of the front Nguyen’s got stop. passenger and a seat in the placed handgun waistband of his The court then pants. Melancon to to those before permitted testify facts the jury. afternoon, same

That a was held outside hearing the at presence which Floriberto Villanueva testified that he had been a taco when stand he gunshots heard and saw Nguyen’s car come to a A man out Tony stop. “got running with a in his hand.” The then gun court Villanueva to so permitted before the The court testify jury. then affirmed its before ruling day excluding and “that testimony Trujillo Hughey, stating additional any be testimony would cumulative.” trial court did not err in excluding testimony proffered by

defense that and witnesses had seen man with near Trujillo gun a a Hughey the car in which had Tony been shot. The defense offered this Nguyen testimony Lac’s was not a and did impeach testimony carrying gun The trial court was gun. Truong Nguyen carrying whether not know was cumulative once the testimony Trujillo Hughey correct Villanueva that had they of Melancon and testimony defense produced the car carrying gun. a man leaving seen cross- court restricted his erroneously that the trial argues

Defendant also length regarding counsel cross-examined Lac at of Lac. Defense examination of the shooter’s defendant as the in the backseat person his identification of Lac consumed 25 direct examination pages car. While the prosecutor’s consumed pages. cross-examination transcript, reporter’s defense counsel redirect examination Following prosecutor, brief Lac took following exchange place: again cross-examined you’re Do know what to communicate to trying you Counsel:] “[Defense we at the now know display when looked photographic officer you are these Are N.F. they ‘Who says guys? contains the Lam photograph, don’t who are. No. I don’t they look old. I know [Nip Family]? They pretty to the officers you convey police of them.’ What were trying know any 25th, an identification back on May to make 1995? asking you just asking question. I them conveying nothing. I wasn’t “[Lac:] him “Q[:] I know in that anybody photographic And then told don’t you which Lam’s right? has display, picture, I’m sure. I I did. not guess

“A[:] did,’ sure, I “Q[:] that means you say you’re really When T guess right? Yes.

“A[:] recollection “Q[:] your I have to come and refresh Okay. That means up then, right? Go ahead.

“A[:]

;“Q[:] Okay. All right.

“A[:] C, “Q[:] were which you photographic display When shown it, I don’t T know are. they told the officer don’t who you Lam’s in picture No, know either. who are I don’t know.’ And they the officer said ‘do you ‘No, at all?’ know of them And said any you these are old.’ guys Do you remember that statement? making Yep.

“A[:] “Q[:] And there’s no Okay. mind that question your statement is coming mouth, out of your right? Right.

“A[:] that,

“Q[:] And you’re about positive right? About what?

“A[:] “Q[:] About that statement that T you making don’t know who are. I they don’t know these No. These are old any guys. guys’? Yeah, that. I said

“A[:] that,

“Q[:] And you’re sure of Okay. right? there, so, It’s right yeah.

“A[:]

“Q[:] mind, No question your right? What?

“A[:]

“Q[:] No question? No about what? question

“A[:]

“Q[:] About you— Me that? saying

“A[:] words,

“Q[:] Those yeah. No. If it’s on the no. paper,

“A[:] “Q[:] And then there’s know another officer would saying you any these names, do guys[’] you or think seen them And you’ve you before? answered no isn’t true? again; true. That’s

“A[:] that, right? And sure about

“Q[:] you’re Yes.

“A[:] that, tight? about

“Q[;] And you’re positive a

“A[;] yes. That’s three times it, Well, you think said know you you there’s —so don’t “Q[:] you Okay. right? these in the guys photograph; did not know any said you says, yes. If what the that’s paper “A[:] true, says, also after reviewed what

“Q[:] having paper it And isn’t the guys looking comments about you are made couple convinced you looking younger, you’re old farts and two looking guys like —two like guys now, right? about that sure about I’m sure that.

“A[:]

“Q[:] about that? Positive Yeah.

“A[:] it, fact. know that that’s a “Q[:] thinking you it’s not a matter of about And statements, You made those right? like an hour and me the Yeah. The interview was again. Show page

“A[:] remember, hitting know. You’re you just I said lot of stuff that I don’t half. me There’s lot of stuff there want to on. get the ones that you try no, no, no, yes, yes. You want to guys. just get would out help identification on where made “Q[:j you any You want show me type 25th, May 1995?

“A[:j this with? Where does start I counsel.” May

“THE COURT: see n chambers, has made to what the court “I think a record been In said: ’95, of Exhibit C and his prior 25th in terms took on the place May, either that it are ... I don’t know benefits party statements that recorded. to continue this line of anybody Defense questioning.” counsel replied concern was that Lac had said there was information in the transcript preliminary hearing favored the The court prosecution. responded that it did not “think we’re going go anywhere this You have point. established for the clearly jury that on the 25th of he did not May make an So, identification. ... Pm a cease fire at asking this I don’t think point. [for] we’re to do going worthwhile. If I anything missed this is the something, time for to tell me.” you

The following ensued: exchange No, honor, I hear you, but your

“[Defense can I ask one counsel]: last . . . I’m to ask him question? going have found the you where spot yet you did make your identification. No,

“THE COURT: because I think that argumentative question, because had not indicated that he made an identification on the 25th of . . . And I’m May. to ask . . . to not going you do that. Well, okay, your honor.”

“[Defense counsel]: resumed, Recross-examination defense counsel and the took following place: Are still you looking

“[Defense something? counsel:] Just this. reading “[Lac:] Okay. Let me know if found you’ve

“[Defense anything counsel:] interest- ing, okay? prosecutor]: Objection, argumentative.

“[The So, “THE COURT: It is. instincts were correct. My that’s it. You’re done.” The trial court did not err. The shows trial court allowed transcript defense counsel Lac in repeatedly order to demonstrate that he question made no identification of defendant in his statement on May police 1995. Defense counsel’s questions and the trial accomplished purpose, court did not abuse its discretion to reasonable impose restrictions recross-examination to avoid argumentative v. Hines (People questioning. 15 Cal.4th P.2d 388].) Probation Steven Sentman Testimony

3. Officer regarding the trial court in several respects Defendant contends that erred Sentman, to rebut called the by prosecution the of Steven witness testimony under the He that these errors violated various rights alibi. argues defendant’s Sixth, the Fifth, Amendments to federal Constitution. and Fourteenth Eighth, in when Tony defense that he had been Alabama Defendant testified in his shot on Nguyen shot on and when was Huy July Nguyen sisters, Nen corrobo- Phuong Nguyen, November 1994. Defendant’s rested, that the defense the indicated testimony. rated his When prosecutor officer, Sentman, Steven would be one defendant’s former probation call on objected the to on rebuttal. witnesses prosecutor planned in that Sentman had been the courtroom defendant’s during grounds that to be excluded.” fact “witnesses were testimony despite supposed It’s hard to anybody The court stated: “I don’t know Sentman from else. trial that unless me some assistance gives regard.” control counsel to from stating: later denied defendant’s motion bar Sentman testifying, court courtroom, I’m “I in the in a fashion. And timely wasn’t advised he was they thinking not counsel. didn’t know were faulting you Apparently to court added that “the area that he him as witness.” The calling plans that he by to doesn’t to be or the fact testify appear impacted prejudiced was here while the defendant was testifying.” 177 Cal.Rptr.

Citing People Cal.App.3d 149] Valdez (Valdez), defendant that the trial court should have argues permitted “he had violated a court order court testify by attending Sentman to because Defendant does not cite any during appellant’s testimony.” portion that the trial court entered an order indicating excluding potential record trial court such from the courtroom. Even had issued assuming witnesses order, an the fact that was in to the time that he Sentman court prior as a was not him from grounds testifying. witness designated prohibit Valdez, exclude In the trial court motion to granted prosecutor’s courtroom, but the defendant’s witness witnesses from permitted expert cross-examining prosecution’s expert remain assist defense counsel argued Defense did not later call his as witness and witness. counsel expert on that the trial court’s order denied him his call his right expert appeal trial court not abuse its witness. The Court of concluded that the did Appeal “did the court any discretion because defense counsel not give persuasive to an making granting reason for an order denying outright exception at (Valdez, witnesses.” supra, Cal.App.3d motion exclude prosecutor’s 688.) p. held that the trial court did not abuse its discretion in

Valdez issuing order witnesses from the excluding courtroom the fact that this despite would mean that the defendant could not use the same to advise him expert during cross-examination of the and later prosecution’s as an expert testify expert (Valdez, defendant’s behalf. supra, 688.) Cal.App.3d p. Defendant does not contend that Instead, this case a similar presents scenario. he relies observation in dicta upon Valdez's although usual “remedy for a violation of an exclusion order is of the contempt, disqualification (id. 692), at witness” p. be disqualification may if counsel appropriate “fault” for to have a choosing witness potential and present during testimony later that as a calling witness in person knowing violation of the court order (ibid.). But this is not what here. The happened record does not show that the knew that Sentman prosecutor would be called aas witness to defend prior ant’s testimony.

Defendant next argues trial court “should have imposed strong sanction” because the disclosed prosecutor belatedly field notes on which Sentman relied. At the of the court beginning session at which Sentman testified, notes, the officer’s field prosecutor provided which showed that 19, 1994, defendant had met with the officer on two July before days Tony notes, Nguyen was shot. those Relying Sentman testified that upon he saw defendant in Sentman’s office on 13 and After July 1994. Sentman rested, finished his both sides testimony, jury released for then day. produced that had been served on copy subpoena 23, 1996, office on probation for April asking all “any probation records . . . to the pertaining probation Lam Thanh supervision Nguyen.” Defense counsel stated: “I want to make that as a court just record because we were trying get these documents for over two and all of years, a sudden these field notes show this The stated that up morning.” prosecutor defendant had never requested discovery office records from the probation and that prosecution the first time had she seen Sentman’s field notes was that The record does not indicate morning. that defendant asked the trial court to on the sanctions impose prosecution having failed to the field provide notes sooner. testified,

The after day Sentman defendant requested following special jury instruction: “The field probation notes which he used to officer[’]s his 6 month prepare chronological of contacts with the defendant were report not disclosed to the defense until 24 JUNE 1998. The failure to disclose [¶] those notes before that date be considered in . . . may determining of his notes and the accuracy of the witness.” The trial court credibility instruction, refused the that the field “had requested saying although trial the that if it ‘that disclosure.” The court instructed found untimely jury was a the defense to notice to the by timely prosecution there failure provide . . may of the names and addresses witnesses . consider such [y]ou [alibi] failure, if to be the any, determining given testimony to of such weight ” supra, Riggs (Riggs, 305.) 44 Cal.4th at the instruction witnesses.’ p. upheld an but that one factor whether explained important “attempt gain tactical was behind the failure to disclose evidence at timely advantage (Id. 308-309.) . . . .” issue pp. Here, it gain does not a tactical advantage appear attempt behind the disclose the field notes earlier. Defendant had failure to not asked records, for the instead to choosing subpoena prosecution probation from records office. There is to indicate Sentman nothing probation had been had been asked his notes or aware of the or for other subpoena any materials at time. Nor is there indication that the failure to disclose any accuracy. the notes earlier somehow affected their trial court Accordingly, did not err in jury defendant’s instruction. refusing special did the as

Nor trial court err defendant from a rebuttal barring calling sister, Le Sentman his witness older finished Nguyen. testimony rebuttal on June Defense then stated that “in 1998. counsel Wednesday, view of defendant wished to call one witness on testimony,” Sentman’s sister, surrebuttal: defendant’s older Le with whom defendant had Nguyen, living According been until before was shot. to defense shortly Tony Nguyen counsel, Le her end would that defendant lived with until the Nguyen testify or the until he July go of June left to Louisiana beginning “did not him to the stay airport” another sister. witness drive could did not see California after that time. only say she him in Le that he had no other witnesses and that Nguyen

Defense counsel added be in to “We have to testify: Delaware and would have to flown lived in orders, services, her out here get Monday court go through probably prepare sure . . . testify, though. But the court warned: “I’m not she’ll morning.” [I]t that she can as to testify anything specific.” doesn’t appear had defendant filed a letter from his that said he investigator The next day, on the and that she said defendant had lived to Le Nguyen telephone spoken March, June, until and “moved out of apts with her “from 1994” that he to Alabama to work in the seafood and and told her was going [sic\ “Well, The court asked defense counsel: do we not industries.” shrimping behalf of the defendant have two witnesses that have testified already [o]n left Alabama the Fourth of and that he was July that the defendant had the Fourth of and dates to the July July?” seen in Alabama on 19th prior “We do.” The court ruled: “It doesn’t tentatively Defense counsel responded: that kind of based on offer of testimony your proof look like I’ll permit now,” the court invited defense counsel to be prepared stand but things me additional offers of this witness why “to following day give any proof should be permitted testify.” The court did not following day. renewed his request is, “The our discussion I don’t rule and instead said: reason for

expressly evidence, the defendant from want to take the risk of precluding presenting from that bears as to his whereabouts hearing testimony precluding If she was —if your on the dates of the offenses that occurred in ’94. alleged the declaration submitted by offer of review of including my proof, [the have value in those would indicate —would some investigator], probative areas, her in I would surrebuttal.” permit testify admit rebuttal rests within largely

“The decision to evidence and disturbed on in the absence discretion of the trial court will be appeal v. (2005) 34 Cal.4th (People Young of demonstrated abuse of that discretion.” 1149, 112, court did not 487].) Cal. 3d 105 P.3d The trial 1199 Rptr. [24 here. The of Le would have testimony Nguyen abuse its discretion proffered other two sisters that been cumulative to the of his largely testimony previous were shot. he was in Alabama when and Tony Nguyen Huy Nguyen 24, 1994, Shooting Huy Nguyen Issue Related to the November D. of to instruct refusing Defendant that the trial court erred in argues request on in the of shooting Huy Nguyen on self-defense jury imperfect 24, 1994, rights and that this error violated his constitutional November trial, due to a and to defense. jury present process, 1994, noted, he evening testified that on Nguyen Thanksgiving As Huy arcade when game “guy” was outside the Mission Control video standing 1066 him and asked if he was in the Rascals said he Tiny Gang. Huy

approached had friends in the but that I to T.R. only gang, thought belonged [Tiny “[h]e and then he hit me on the face one time.” He remembered Gang], Rascals little after he but other of what witnesses testified happened punched, face, defendant in the a fist of starting fight outside Huy Nguyen punched the arcade in which several of friends and defendant’s friends Huy Nguyen’s out of his waistband shot joined. pulled gun Huy Nguyen the stomach. stumbled into Mission Control. Defendant fol- Huy Nguyen him several more on the lay lowed him inside shot times floor. Huy was left Nguyen partially paralyzed. self-defense,

The trial court instructed on but it refused defend- jury ant’s to instruct self-defense. In a request jury imperfect preliminary instructions, the court discussion indicated that it found “insufficient jury instruction, evidence to either a sua at the or one justify sponte request counsel for defendant.” Defense only counsel’s was to ask whether response incident,” that “includes the which the murder of Tuan 5/6/95 Pham. self-defense, “Under the doctrine of the trier when of fact finds imperfect that a defendant killed another because the defendant but person actually, he was in death unreasonably, believed imminent danger great bodily the defendant is deemed to have acted without malice and injury, thus can be (In re convicted of no crime than greater voluntary manslaughter.” “ S., Christian supra, Cal.4th 771.) 7 trial court must instruct on p. ‘[T]he doctrine, counsel, this whether or not instructions are whenever by requested there is evidence substantial enough merit consideration ” under this doctrine the defendant guilty voluntary manslaughter.’ (People Manriquez (2005) 37 Cal.4th Cal.Rptr.3d 614].) 123 P.3d self-defense defense of others a fear of imminent requires

“[B]oth [citation], harm so self-defense . . . would presumably imperfect require v. Michaels (People unreasonable belief that harm was imminent.” Here, 1032].) Cal.4th P.3d there was insufficient evidence that defendant had either a reasonable or unreasonable belief that harm was imminent when he followed the wounded victim into the arcade and shot him several times as he on the The trial court lay floor. was not to instruct the self-defense. required imperfect Issues Related to the and Enhancements Gang Charges

E.

1. Shooting Huy Nguyen of 24, 1994, With to the November of defend- regard shooting Huy Nguyen, ant claims there is insufficient evidence to his conviction for support partici- 186.22, (a) in a in violation of and the pating gang section subdivision

1067 sentence enhancement for a crime for the benefit of a under committing gang 186.22, (b)(1). section subdivision Defendant asserts the shooting Huy was, most, “at of some sort . . . that Nguyen was personal dispute himself, initiated” the victim and that his conviction violated apparently his to due The record does not right defendant’s process. support argument. him, testified that a

Huy Nguyen “guy” asked if was a approached member of a and then him in the face. gang, Witnesses testified that punched defendant, indeed a “guy” Huy Nguyen was member of a rival and that members associated with gang, gang both and defend- Huy Nguyen ant in the before defendant shot joined fight victim. This evidence verdict that defendant an active jury’s in a supports gang participant 186.22, (a) under section and the subdivision that defendant jury’s finding 186.22, shot the victim for the benefit of a under gang section subdivision 1145, People Livingston (b)(1). (See (2012) v. 53 Cal.4th 1170-1171 [140 1132].) 274 P.3d Cal.Rptr.3d out that the

Although Huy Nguyen points shooting occurred “at a time when was unaccompanied by any Nip Family [defendant] member,” he that fact to his that the incident was argument employs support 186.22, related. He does not contest of section personal, gang application (a)’s subdivision that a defendant “commit an requirement underlying felony (People Rodriguez (2012) least one other member.” 55 Cal.4th gang 1143].) P.3d We therefore have no Cal.Rptr.3d occasion to decide whether defendant’s act of members of fighting alongside the Natoma from and that Boys gang which evolved Nip Family —-a remained allied with defendant’s have closely gang supported —could furthered], that defendant jury’s finding “willfully promote[d], assisted] 186.22, by members (§ felonious criminal conduct gang.” any added; v. Velasco (a), subd. People italics see Cal.App.4th “ ‘that [concluding gang’ statutory phrase 94] refers back to the in which the defendant is an active clearly ‘gang’ participant”].)

2. Gang participation further claims there is insufficient evidence to support of five in a of section convictions counts in violation participating gang 186.22, (a) subdivision and the 10 true on sentence enhance- jury’s findings under section ment crime for benefit of allegations committing gang 186.22, (b) subdivision because “the evidence was insufficient to show 186.22, (e), commission of crimes enumerated in section subdivision was one primary activities of the Family.” Nip 1068 it a crime to (a) “actively of section 186.22 makes

Subdivision (b)(1) enhances the and subdivision criminal street any gang,” participate[] . . . criminal street committed for the benefit of any “felony sentence for any 186.22, subdivision in section gang definition of a criminal street The gang.” activities” the “as one of its primary have (f) gang requires the criminal acts enumerated subdivision one or more of commission of be and the offenses currently charged may both offenses (e). Evidence of past activities of the gang whether one of determining primary considered in (People v. enumerated in the statute. or more of offenses one committing 851, 316, 27 P.3d Cal.4th 323 (2001) Cal.Rptr.2d 26 Sengpadychith [109 activities consist of might of the 739].) gang’s primary “Sufficient proof have commit consistently repeatedly members group’s evidence Also sufficient be might expert listed in the statute. activity gang ted criminal (Id. 324.) . . . .” testimony p. case, testified as an Police Detective Mark Nye

In the Westminster present of the Nip He that some of the activities said gangs. primary expert assaults, “homicides, homicides, were attempted Family gang assault[s] theft, robberies, auto narcotic burglaries, home invasion deadly weapons, 186.22, (§ enumerated in the statute. all of these are crimes sales.” Nearly (e).) evidence was sufficient. subd. This enhancements Gang

3. that it to add to each General concedes Attorney improper for the crime of sentence gang participation defendant’s convictions of a under section gang the crime for the benefit committing enhancement for concession, 186.22, General’s (b)(1). Attorney We accept subdivision section law analogous provisions which accords with case interpreting Briceno v. (See People the relevant legislative history. 186.22 as well as with 418, 1007]; 451, v. Lopez P.3d (2004) 34 Cal.4th 465 99 Cal.Rptr.3d [20 824, 929]; Court (2008) 833 Superior Cal.Rptr.3d Cal.App.4th 380]; People Arroyas Cal.App.4th Com., of Assem. Floor 3d Analyses, reading analysis Sen. Rules Off. of Sen. 30, 1988, (1987-1988 Sess.) as amended Aug. par. Bill No. 2013 Reg. ‘wobbler,’ 186.22, “a (a) offense is punishable subdivision p. [section for and the state prison term of in the county jail minimum imprisonment 186.22, (b)] enhancement offenses and section subdivision these [a enhancements gang we strike defendant’s Accordingly, underlying felony”].) 3,5, in counts in a actively gang participating from sentences imposed and 14. E Issues Related to the Entire Guilt Phase investigator

1. Defense Defendant that he was denied the argues effective assistance of defense Daniel Watkins investigator because Watkins had been primarily engaged criminal conduct for which he was arrested after the returned a shortly jury verdict of death. Defendant contends that Watkins’s actions violated his rights trial, counsel, to due and a fair effective assistance process confronta- witnesses, tion of and a reliable determination of and guilt penalty. trial, 14, 1998, of the on Following penalty phase returned July continuances, 18, 1998, a death verdict. After several on December filed a motion for new trial “based on ineffective assistance of defense investigator.” Defendant stated that after shortly Watkins was aas appointed 6, 1996, defense on March investigator defense counsel instructed him to locate and interview two witnesses —Salome potential and Espinoza Johnny Tai —and to take Ngoc of the restaurant where photographs Sang Nguyen shot. Defendant alleged Watkins failed to these duties perform compe- because tently his attention was diverted by personal problems: “During defendant, entire trial both on guilt Watkins was penalty, enduring significant which diverted personal problems his attention from his investiga- tion but not limited to an including acrimonious battle in court with his ex-wife over child community property, support, spousal support.” Defendant further alleged Watkins was for being prosecuted attempting 13, 1998, to silence a witness: “On prosecution May Watkins was on caught Mai, defendant, another tape Henry with Mai about capital conspiring the shut’ on Khoi who ‘putting Huynh critical witness who prosecution v. Mai (See defense was to interview.” People trying 57 Cal.4th 1175].) 305 P.3d Defendant asserted that defense counsel had instructed Watkins “on numerous occasions to seek an interview with not to shut him Huynh, added that Watkins also up.” was being to murder “a witness in the Mai death prosecuted conspiring Henry case.” penalty

Attached to the motion for a new trial was a of an affidavit penalty copy for a search warrant that stated that Mai had Henry Watkins from telephoned 13, 1998, said, Khoi,” jail May “You still want me to a shut on put added, and asked for a certain document. Watkins but responded, “Okay,” “Yeah, well, I don’t want to know more about that.” anything Watkins that he would deliver the document to Mai in promised affidavit jail. says that the document was found in another inmate’s cell jail during subsequent search. Outside the testified that Watkins never presence jury, Huynh Wilson, contacted him or asked him not to testify. Lyle for the investigator him one had contacted told him that no that Huynh testified attorney, district not to testify. or asked him the trial by hearing. questioning a lengthy Upon conducted

The trial court had been investigator a new defense court, although that counsel said defense to locate the two potential had been unable investigator that appointed, asked to locate. had been whom Watkins witnesses to convince had with Mai that conspired Watkins allegations to

Turning for the that “there’s insufficient evidence ruled to the court testify, not Huynh did, fact, to make any tell Huynh that Watkins court to conclude trial court further ruled that the trial.” The course of during statements “I cannot that there’s say defendant: did not prejudice Watkins’s performance that the defendant was to determine showing been a sufficient or adequate new denied defendant’s motion for .” The trial court trial . . . denied a fair trial. silence Huynh in a to plot that Watkins was involved

Even if we assume defendant has failed testimony, Huynh’s Watkins’s efforts influenced and that testified, or and he was unwilling Huynh to show he suffered prejudice. Defendant contends: defendant as the assailant. to identify unable at trial faked loss was memory pro- defense from Khoi’s “The to the damage as to his claim to Khoi himself was unable impeach found. . . . defense [T]he 10), and instead (Counts had him on March that shot appellant officers police able to use polished experienced prosecution that meaning statements on point, inconsistent [Huynh’s] as to testify prior and tone of voice when Khoi’s demeanor was unable to assess that the claimed Huynh’s memory also argues his accusation.” Defendant making “Khoi was a theory counsel from developing loss defense prevented defendant. scheme to frame” in a Cheap Boys major participant off would have been better that the defense suggest it But is speculative trial, had actually defendant at identify than failing if rather Huynh, trial, to the police at consistent with statements defendant identified it is reasonably probable We do not believe shooting. after the days resulted in a would have by Huynh such testimony to impeach opportunity as his assailant identify Huynh’s inability different verdict. time, directly at the same it but theory, defense counsel’s frame-up impeded who shot that defendant was the person case weakened the prosecution’s Huynh. Tin Due testimony. Watkins’s he was prejudiced

Defendant also asserts Boys gang conspired to trial that the Cheap told prior Phan Watkins allegedly trial, did not remember that he Phan testified to frame defendant. But any such statement. Defense making Phan, counsel called Watkins to impeach and Watkins testified that Phan had told him that “the are Cheap Boys setting up Nip Family.” cross-examination,

On asked prosecutor Watkins whether he had to anyone, intending would hoping they “talkfed] put pressure Khoi not to Huynh Watkins testify.” he could not replied recollect done having so. He confirmed that he had with attempted but said he had speak Huynh, not conducted an interview” “in-depth with him. When asked whether he had threatened Huynh “I’m by saying, other telling members that gang you’re informing on Watkins gang cooperating police,” “Have I replied, No, ever to Khoi gone Huynh said that? I have not.” The then prosecutor moved on and did not revisit the subject.

Defendant contends that this testimony to the defense” “devastating witness, because it “destroyed” Watkins’s as a credibility thereby preventing him from effectively Phan’s impeaching testimony, “cast pall over the incredibility entire deception defense team.” This argument reads too much into Watkins’s testimony. Although have found it jurors might that Watkins suspicious failed to initially affirmatively deny pressuring Huynh not to the record does testify, defendant’s assertion that support Watkins’s “claim of lack of recall was an obvious falsehood” that “exposed [Watkins] both a liar context, and a of evidence.” Read in suppressor Watkins’s were responses hardly either to “devastating,” defense counsel’s to attempt Phan or to the impeach defense team’s overall credibility.

We also decline defendant’s that we remand the matter to the request trial court “so that an be appropriate inquiry may undertaken into whether trial counsel motion, had a conflict of interest in the new trial presenting with new Wood v. appellant represented by counsel at the Georgia inquiry.” Citing 261, (1981) 450 U.S. 273-274 1097], L.Ed.2d 101 S.Ct. defendant [67 argues trial court should have known that defense counsel was acting under a conflict of interest. The trial court considered this issue. The prosecutor reluctantly suggested counsel be independent appointed argue motion for new trial. The trial court recognized that appointing so, counsel was “an independent but declined to do option” preferring “take another look at that situation as here on this things develop hearing.”

“When a defendant claims that a trial court’s into a inquiry potential conflict was the defendant still must demonstrate inadequate, impact the conflict on counsel’s v. Cornwell performance.” (People (2005) 37 Cal.4th 622], 117 P.3d Cal.Rptr.3d on another disapproved ground v. Doolin 390, 421, People 45 Cal.4th fn. 22 11].) P.3d the Wood decision “[C]ontrary defendant’s suggestion, conclude that due or Sixth Amendment process principles did not certainly trial for whenever a court hearing an automatic remand further ... require (Cornwell, into a conflict interest.” has not sufficiently potential inquired to the 78.) a demonstration of we will not remand trial Absent prejudice, p. how the (Ibid.) Defendant fails explain purported court further inquiry. a new of motion for trial. conflict defense counsel’s presentation affected further, Thus, investigated have defend- even trial court should assuming basis ant has sufficient for remand. not presented Evidence 2. of firearms court evidence

Defendant contends that the trial erred of four admitting were not firearms that were connected to defendant but connected any the charged shootings. 25, 1995, noted, defendant on when he arrived

As was arrested with May trial, a medical Dr. Dinh Van Dinh. Before Pham for Huy appointment to exclude evidence of a found in the glove moved gun compart- car ment of Pham’s that “the value of grounds probative finding Huy would be far its effect.” gun outweighed prejudicial alleged no value the defendant was not has since gun probative charged “[t]he 25, Further, of a concealed the weapon May 1995. possession of the the charged has not linked that crimes weapon any prosecution information.”

Defendant also noted in the motion to evidence that several suppress additional were a a residence at 13401 during found search of Amarillo guns Drive in had obtained a search warrant after seeing Westminster. police descent, three men Asian one of was the same as roughly height of whom defendant, car, the and enter car. When the police leave residence a stopped ran the man who matched and In roughly height away escaped. defendant’s seen, where was last a fleeing some bushes near the police dog suspect that had bullet from the car Tuan Pham had located fired a recovered gun search, been when he killed. the found two During was driving police AK-47, and .357-caliber rifle resembling prescriptions Huy pistols, Pham John Nguyen. booked, arrest, he defendant’s while was asked being he

Following friend, Pham, Huy adding: whether the to book “Huy police planned booking didn’t do and the is mine.” The officer “What anything, gun replied, in the of glove Defendant said there was loaded gun?” gun compartment car. Police the Huy Pham’s retrieved weapon. no in the motion is evidence argued suppression “[t]here the of their presence” the defendant or that knew guns belonged

and that none of the found have linked been the guns any “[s]ince defendant, value, counts the their if alleged be against probative any, would their and should outweighed effect be excluded.” prejudicial 1998, On an in defendant filed limine motion to exclude April evidence of the in the the guns found search of residence at 13401 Amarillo and glove Pham’s car. The district compartment Huy attorney opposed motion, that evidence of the “is consistent with Lam arguing guns Nguyen being ready armed and for a battle whenever and it Nip Family wherever should occur.” The asserted that there “an . . . prosecutor war ongoing between the and one would Family Boys gangs” Nip Cheap “expect soldiers and be ‘forts’to The trial respective heavily armed.” court denied motion, defendant’s the evidence “relevant to whether finding or not defendant active was an and a member of a participant particular gang.” (2007)

We held in v. People Barnwell Cal.4th 1038 Cal.Rptr.3d 162 P.3d it that was error to admit evidence that the defendant possessed 596] crime, gun was not connected with “for charged such evidence crime,

tends to that he show not committed but that he is only the sort (Id. person 1056.) who carries The same true deadly is not weapons.” p. here.

To the extent defendant contends evidence four guns inadmissible, irrelevant and thus we “The reject claim. trial court has broad latitude in the relevance We determining of evidence. [Citations.] review such determinations for of discretion.” (People abuse Scott Here, Cal.4th 703].) 257 P.3d as the Attorney General evidence that argued, numerous firearms had possessed in reason to “tendency fact that prove disprove any disputed Code, (Evid. 210), to the determination of action” consequence namely, § that he was a member at a (See (2011) war with rival v. Hill gang gang. People 1104, 1122, 191 fn. an Cal.App.4th 251] [evidence was ongoing gang war relevant to show the defendant’s motive for possess firearm].) ing

To the extent defendant also contends the evidence firearms should have been excluded under Evidence Code section the court did trial not abuse its discretion in the admitting evidence because its value was probative outweighed undue effect. There a prejudicial significant amount other linking evidence defendant to firearms. Defendant was as identified in the of the being backseat car when a fellow member shot gang Tony Nguyen. Choeun that Chamroeun testified defendant shot Huy Nguyen outside the Mission Control video arcade. Linda Vu testified that defendant shot and killed the Sang Nguyen outside Khanh restaurant. Dong Jeremy the Khoi outside of Rack Cue that defendant shot Huynh Lenart testified out And defendant’s Wayne Murray picked photograph hall. Robert pool shortly before Tuan Pham was holding who was gun lineup person of evidence that defendant other firearms not possessed killed. The admission not unduly to the crimes was charged prejudicial. connected related to the use statements Issues 3. of defendant’s for impeachment that the trial court erred in argues permitting Defendant prosecutor he with gang that was not member testimony Nip Family his impeach arrest in violation of Miranda following statements obtained from him his 1602], Defendant U.S. 436 L.Ed.2d S.Ct. Arizona police department policy ignore claims that there was widespread of the to counsel in order to obtain statements for invocation suspects’ right that the statements were involuntary, impeachment purposes, but were for the truth of the statements were not limited used impeachment this evidence violated matter Defendant admission of argues asserted. self-incrimination, Amendment his Amendment his Sixth right against Fifth and the Fifth and during to the of counsel right police questioning, presence Fourteenth Amendment ban on admission of statements. involuntary arrest, brought after defendant was to the Westminster

Shortly police his of his Miranda Nye Detectives and Proctor. rights by station and informed But a few attorney, When defendant asked an the interview stopped. later, resumed reentered the room and interrogation minutes detectives police defendant: “We have some other get things questioning, telling just followed, that he clear.” defendant admitted During questioning After the detectives Family a member of defendant reminded gang. Nip the interview concluded. attorney, twice more he wanted speak under Miranda trial, At rights conceded defendant’s prosecution had did not offer defendant’s into evidence been violated and statements his at trial. He testified on own behalf during its case-in-chief. members, but was friends with many Nip Family gang stated that knew or rebuttal, he denied In being Nip Family gang. prosecu- a member during defendant made contrary tion to introduce statements sought interrogation.

At the of the Detective testified he jury, Nye a outside hearing presence Rutledge had at a Devallis of the taught Orange learned session training by a after he by District Office that statements made Attorney’s suspect County can be in the case-in-chief but be lawyer prosecution’s a cannot used requests about that he had also watched used for Detective stated Nye impeachment.

1075 two dozen of not Rutledge’s all of the training videotapes, though videos covered this Detective that Nye confirmed he had particular topic. learned— either in the live or in training one videos—that talk Rutledge’s “you can to a after he invokes to an his in order to suspect right attorney get statements for At purposes.” Nye one Detective that impeachment point, acknowledged one reason he asked defendant his about affiliation after had gang defendant asked for an was to statement attorney for but get impeachment purposes, later, he also asked as of the part booking A short time process. Detective denied that he asked about Nye affiliation for gang impeach- ment “It stating; knowledge was for about the purposes, personal gang, his involvement. And it the was also for booking process.” the

After relevant of the of the viewing portions videotape interrogation, the trial court the to use defendant’s for permitted prosecution statement “From the impeachment: demeanor defendant and the demeanor of seen, two officers from that I have I didn’t see that videotape anything conduct, in terms of their or overbearing way handled or they . . processed accused . .” (1971)

The court in v. New high Harris York 401 U.S. 225 643], L.Ed.2d S.Ct. held that a defendant’s out-of-court statements obtained in violation Miranda could be used to impeach defendant’s Harris noted that testimony. a defendant does not have “the right to commit perjury” said: rule has a deterrent effect “Assuming exclusionary conduct, sufficient deterrence when the proscribed flows evidence police is made unavailable question (Ibid.) to the in its case in chief.” prosecution “The shield Miranda cannot be into a use provided by license to perverted defense, of a from the perjury by free risk of confrontation with way prior (Id. 226.) inconsistent utterances.” at p.

In Hass U.S. L.Ed.2d Oregon v. S.Ct. 1215], the court held that rule in high Harris even when applies has asked for an Miranda suspect attorney following proper warnings. high court “that when Miranda have recognized warnings been proper given, and the officer then interrogation continues his after asks for suspect officer be said to have little to lose attorney, may something perhaps to gain (ibid.) material.” But the by way possibly uncovering impeachment Harris, court concluded “the balance was struck in and we are If, case, it now. disposed change given the officer’s conduct amounts case, abuse, duress, to an like those coercion be taken involving may care of when it arises measured the traditional evaluating standards (Ibid.) voluntariness and trustworthiness.” held this we have that “the Harris rule

Against backdrop, when applies officer police deliberately a custodial fails to honor conducting interrogation 1076 objective counsel, securing the evidence for for with

suspect’s request (1998) 17 Peevy 1184, (People 1188 Cal.4th [73 purposes.” impeachment (Peevy).) After arrested, 865, he was Peevy P.2d 953 Cal.Rptr.2d 1212] his Miranda an attorney. and he asked for The detective rights, advised of “ talking impeachment pur he testified that ‘kept [the defendant] ” crime,’ knew the that he he talking explaining .... I about just kept poses of Miranda but understood that the the prosecution dictates violating (Id. 1189.) at for impeachment. p. still use the defendant’s statements could Peevy the need had “struck a balance between to court high observed need defendants who perjure misconduct to expose deter police that “the Harris rule (Id. 1194.) at We applies at trial.” said p. themselves violates Miranda and Edwards Arizona if the individual officer police [v. even 378, 451 U.S. 477 by L.Ed.2d 101 S.Ct. (1981) purposefully 1880]] [68 counsel,” or her to right noting to honor invocation his failing suspect’s that become a shield for “the concern misconduct not court’s police or whether the misconduct is intentional merely would seem to apply perjury 1, v. Demetrulias (Id. at People 1196; (2006) 39 Cal.4th see p. negligent.” 407, 229].) P.3d Peevy, Nye that Detective violated dictates deliberately Under fact of Miranda order to obtain statements for interrogation and continued in those did from statements using not preclude prosecution impeachment testimony. defendant’s contrary impeach Peevy create an whether this court could or should

We left undecided in violation of the rule use statements obtained exception permitting Miranda and Edwards for impeachment if there was “widespread, systematic that issue for appeal. because had not Peevy preserved misconduct” police (Peevy, 11 Cal.4th supra, 1205.) us case also does require This p. demonstrate because the record on direct does not appeal decide that issue misconduct. systematic widespread, police learned then official in Rutledge,

Detective testified from Nye top Office, statements obtained County Attorney’s District Orange violation of Miranda he could could be used for impeachment after invokes right even suspect suspect continue to question that, Further, has court observed attorney. high “[e]mphasizing Court, to Miranda rule this exception approved [cita- impeachment advise officers to omit Miranda warnings tion], some training programs his rights.” after the invokes suspect continue altogether questioning (Missouri v. Seibert L.Ed.2d (2004) 542 U.S. fn. by California’s training produced a 1996 [citing videotape

124 S.Ct. 2601] see Weisselberg, and Training]; Commission on Peace Officer Standards Saving Miranda [appendix quoting 84 Cornell L.Rev.

1077 from a 1990 excerpts Devallis video in which he Rutledge training discusses “ ‘outside Miranda’ ”].) questioning suspects But record direct does show a not appeal widespread practice police of a for continuing interrogate suspect after he impeachment purposes has flouted Miranda and asked counsel. Detective Although Nye deliberately Edwards defendant’s during interrogation, a tactic he apparently employing from Rutledge, learned we have before no evidence that us Detective or Nye other members of Westminster Police meth- Department employed such on a ods basis. Nor is there regular any allegation that Detective acted Nye Peevy, supra, 17 to an (See official pursuant police department Cal.4th policy. id. 1205; Mosk, at (cone. J.) at 1213-1215 of p. pp. opn. [arguing Harris and Hass should extend a exceptions not of a law “policy enforcement to obtain statements from agency criminal in violation suspects Miranda”].)

Nevertheless, we reiterate that Miranda and Edwards “imposed affirmative duty upon interrogating officers to cease once a questioning (Peevy, supra, 17 invokes the to counsel.” right 1202.) Cal.4th suspect at p. statement obtained in violation of Miranda and Edwards While that a holding Peevy be used for may “it impeachment, is indeed emphasized police to interrogate misconduct in who invoked suspect custody has right (Peevy, counsel.” at We 1205.) reaffirm that p. today. principle “[N]othing Peevy tactics, was meant deliberately condone interrogation improper Neal v. (People whether individual systematic.” (2003) Cal.4th 90 [1 J.) (Neal).) Baxter, (cone. 72 P.3d Cal.Rptr.3d “Such opn. 280] (Id. tarnish most and at practices badge officers honor.” respect p. 92 Peevy Baxter, (cone. J.).) Police opn. officers should not misread as an Miranda and Edwards. Notwith invitation to their under ignore obligations standing Harris’s rule, and Peevy’s impeachment statement obtained in Miranda Edwards is a statement (Peevy, “obtained illegally.” violation of 1204; see id. at at 1202-1203.) p. pp. claims his statements were additionally citing involuntary,

People Bey Cal.App.4th Bey 28]. his Miranda arrested asked for an when advised of attorney rights. officer said he realized did not waive his Bey rights but explained “ to continue to ask even can’t ’em in going though ‘we use questions ” (Id. 1627.) court.’ “an of the events on p. Bey eventually gave account the night of the murder which was with inconsistent some his respects (Ibid.) testimony at trial.” The Court of ruled that Bey’s statements Appeal were be could not used to involuntary impeach testimony, explaining: case, “This is a very troubling deliberate violation of presenting police Miranda about coupled misrepresentation appellant legal (Id. Here, contrast, 1628.) Detective at p. that violation.” consequences into that his statements could be thinking did not mislead Nye used in court. Neal, 31 Cal.4th which held supra,

This also differs from case he had for an attorney from a after asked suspect that statements obtained the were involuntary. for because statements could not be used impeachment when, 68.) we “A is (Id. involuntary There said: statement [citation] at p. “ , . . circumstances, of threats . any it ‘was ‘extracted sort by other among ’ . . slight however . direct or any promises, obtained by implied [or] fact, no turn on one matter how any Voluntariness does not [Citations.] ” (Id. circumstances.’ but rather on the of significant, ‘totality apparently [the] voluntariness, trial determinations of we 79.) reviewing at “In the court’s p. review, ‘in of the record in its light an standard of so independent doing apply “all the circumstances—both characteris- surrounding entirety, including ” (Id. 80.) and details . . .’ at p. tics of the accused of [encounter]”. violated the only deliberately officer in Neal not had interrogating defendant, him but had “badgered accusing of Miranda also dictates “in without to counsel or other overnight and him access lying,” kept jail (Id. or and without food or drink toilet facilities.” noncustodial personnel minimal court also noted defendant’s 68.) youth, inexperience, This p. education, (Ibid.) in his finding and statements intelligence involuntary. low the trial we interrogation, agree reviewed

Having videotape or otherwise overbearing Detective was not Nye’s court that questioning 34 Cal.4th (See and Marlow coercive. People Coffman Marlow) interro- P.3d and (Coffman 30] [three-hour before does not coercive].) of Miranda not The record us in violation gation involuntary. claim that his statements were defendant’s support Next, to instruct the failing defendant that trial court erred claims admissible for only pur- defendant’s out-of-court statements were instruction, failed to limiting Defendant impeachment. request poses no to issue one sua obligation (Coffman the trial court had sponte. Marlow, 62-63.) 34 Cal.4th at supra, pp. from that he was argues unconstitutionally precluded defendant

Finally, court because the trial sustained “meritless the record fully developing Detective training Nye about defense counsel’s objections” questions office. Even the trial court assuming had the district attorney’s received from does not show erred some of these sustaining objections, him the record on this point. trial from rulings developing court’s prevented Jury selection 4. the trial argues

Defendant court’s limitations on voir dire due violated Sixth his Amendment process, right impartial jury, Eighth right Amendment a reliable determination. penalty first court asserts trial limited voir dire improperly him from asking whether could preventing jurors they vote prospective sentence of life without if found defendant parole they two or more guilty first degree murders. The record does not defendant’s claim. support be excused for cause their

“Prospective jurors may when views on capital would punishment prevent substantially impair performance Thus, their . . affirmed jurors. duties . we have the principle [Citations.] that either entitled ask party jurors are prospective questions specific bias, to determine those enough if harbor as to some fact or jurors circum evidence, stance shown the trial that would cause them not to follow an instruction to them determine after directing considering penalty aggravating and mitigating evidence. ‘Our decisions have that explained [Citations.] hand, dire voir must avoid two extremes. On the one death-qualification it must not so that be abstract it fails to those identify whose death jurors views would the penalty impair of their prevent substantially performance hand, duties in the case tried. On the other it jurors being must not be so it the that to the specific requires jurors issue prospective prejudge penalty based on a the and summary of evidence to be mitigating aggravating likely In to the presented. where strike balance in a deciding particular [Citation.] ” Marlow, case, (Coffman trial courts have considerable discretion.’ supra, 46-47.) 34 Cal.4th at pp. selection,

At the of the court advised the beginning jury jurors prospective if, that defendant was “with three charged counts of murder. And separate if, the to only finds those be true and further fixes the of jury charges degree murder, the unlawful of life to be first we taking degree will have a second to the trial” at the which would select the of life part jury either penalty without imprisonment or death. parole possibility Before individual voir dire the began, again were told prospective jurors that charged defendant was “with three homicides.” separate Regarding circumstances, the court the that if told special jurors “only you prospective find of more than two murders . . . guilty degree you first will be asked to make the determination of do find the you circumstances special be true. . homicides to . . if the finds the to be first Only murder degree you find to be true will be need do a special circumstances there to second trial. And the second is called a In part part penalty phase. [¶] words, of the two choices is are to decide which jury, going other you, earlier, one life as we discussed And penalty. [¶] most appropriate death.” and the other is parole, the possibility without imprisonment dire, charged that defendant was defense counsel repeated voir During is if there is that circumstances and added “one special three murders ask counsel was first murder.” Defense degree permitted more than one willing “would be phase, juror, during penalty whether prospective deal be from both sides that forthcoming evidence that may at all of the look a decision in that making regard.” can consider you with the factors understood that jurors penalty The record reflects prospective murders: guilty if defendant found only multiple would occur phase in order to into get And do understand you Counsel]: “[Defense of at least have to find Mr. going Nguyen guilty are you [penalty phase] murders? two if not three understand, . . . I sir.

“A[:] do feel that toward get you your leaning . . . “Q[:] you part [I]f or substantially this would make it difficult impair death is such that penalty life without come back with a decision—life ability possibility your until have you don’t start the second you phase even realizing parole two at least not three? convicted Mr. of Nguyen [if] Yes, what are I understand you saying.” “A[:] the next counsel to ask whether prospec-

The trial court defense permitted the the jury’s going that “in order to second get phase tive understood juror if not murders.” first-degree Mr. of these two three Nguyen to have to convict asked, counsel “do feel you trial court interceded when defense But the time found you of death the leaning imposition by would be towards you convicted of two a has been separate reasonable doubt beyond person concern “that question The trial court first-degree expressed murders?” “I Defense counsel that factor this by juror.” replied, contains prejudging understand.” can counsel, defense one about the death prospective

When asked penalty stated: juror Well, life were vote for death or in prison if I

“[Prospective Juror:] first-degree I of at least two guilty that means found guy without parole murders. That’s

“[Defense correct[.] Counsel:] And then I would favor death probably this case.” penalty “A[:] [the] Defense returned counsel later to this same topic questioning juror: prospective we you And understand before to the get stage second

“[Defense Counsel:] this have will found Mr. of at two proceeding you Nguyen least guilty murders. You understand that? premeditated I understand it. We never to this may get . . . question.

“A[:] [¶] [¶] “Q[:] And to that where them assuming you got found point you beyond reasonable doubt of two murders with guilty first-degree premedita- tion based on death would be automatic? your feelings I feel that that I situation would listen whatever instructions “A[:] that, and I would base decision on judge gave those instructions. my (cid:127) (cid:127) (cid:127) [¶] [¶3

“Q[:] Tell me this: the death your feelings would toward substan- penalty tially to come back with a life without the impair your ability possibility verdict? parole I don’t I think I think so. can listen to instructions and apply

“A[:] them.” resumed, before voir dire court to counsel in following day, spoke

chambers to of the “go over some rules” make sure that defense ground counsel’s were “not in the questions jurors they where putting position are court prejudging phase some case.” The trial penalty aspect noted commission murders would be one factor the multiple jurors consider “And them adding: would I don’t want during penalty phase, that. structure if will you So when is your question, your prejudging point [¶] still be at all . a to look the other factors . . before make you willing you decision, that’s an question.” appropriate ask,

Defense the the counsel asked court what he was to and permitted court “All can’t to the replied: I’ll ladies and permit gentlemen, you get unless the first finds the defendant of the homicides phase guilty penalty jury have been And and finds the circumstance to be true. charged special be recognizing may . . . will be to look evidence that you willing the other forthcoming defendant’s dealing background, history, [and] . . . .” factors counsel, to defense counsel the admonition following judge’s

Even understood that a penalty phase ask whether prospective juror to permitted two if “if there is conviction on of—at least not couple would occur only count find the you three murders and special-circumstance multiple-murder read in the juror juror the had affirming be true.” After prospective the during a list of factors that could be considered penalty questionnaire were counsel asked whether there in “any particular defense phase, factor[s] are than The trial court did not there feel... less others.” significant that you the in to answer because the juror might put juror the permit prospective “[i]t the that defense suggested case” and instead counsel of position prejudging at each one of factors if willing ask “Are to look those evidence jurors: they is presented?” record, we did not abuse On this conclude trial court its “ effort to balance between the ‘two

discretion in its strike appropriate “ ” ‘to of those whose death views failing identify jurors penalty extremes’ the their duties would or of substantially performance prevent impair “ ” ” ‘the the issue.’ jurors’ asking jurors prejudge penalty prospective Marlow, 47; (Coffman supra, People Pearson 34 Cal.4th at see p. 56 Cal.4th 297 P.3d are 793] [“counsel the not entitled to indoctrinate the as to a view of facts and jurors particular ask would cause them to vote for a they specific whether penalty”].) erred

Defendant next that the trial court in not defense argues permitting their views of life jurors counsel to ask about on the sentence prospective trial, the Before defendant filed a without of motion prison possibility parole. that it jurors, distribute would questionnaire prospective explaining In a economy jury selection “promote judicial process.” expediting “Attitudes the Death section titled Regarding Penalty,” proposed other to state their asking jurors, among things, “general the prospective the death and their life feeling penalty” “general feelings regarding regarding without The imprisonment possibility parole.” questionnaire proposed also “Do that Life without jurors: you asked believe prospective actually means a life without the possibility possibility parole sentence version The her own parole?” prosecutor proposed questionnaire, version, the final both accepted by court drafted which parties. reached final version of that if the questionnaire explained choices would have would only sentencing two penalty you phase, “[t]he It did 1) 2) be without or death.” parole, life prison possibility jurors include the three above but did ask the quoted questions prospective are such that you indicate in their whether their “individual beliefs responses law, could your concerning killing not follow conscientious beliefs substantially of beliefs would or your another or about capital punishment full consideration automatically preclude yóur of the evidence or the law in The penalty phase.” asked whether the questionnaire prospective jurors would refuse either to find defendant of first guilty degree murder or to find true the circumstance special allegation to prevent penalty from phase whether their taking place, views concerning would capital punishment cause them to vote for automatically the death against or life without penalty of and whether could follow the possibility parole, they court’s instructions to consider aggravating factors mitigating before on the voting The penalty. also questionnaire asked to jurors list the reasons prospective “either they it,” the death or are support penalty whether opposed had they “any religious whether, convictions or views regarding death penalty,” views, their despite could follow the personal they court’s instructions. The did not questionnaire ask specifically jurors their views about life provide without the of possibility parole. P.C.,

One juror, wrote on the prospective form that questionnaire she the death supported because penalty imprisonment usually results in “[l]ife Defendant asserts that parole.” P.C.’s written a common response “reflects] of life without misunderstanding that defense parole” counsel was entitled to voir dire. explore during dire, individual voir

During defense counsel asked whether a prospective other juror than P.C. “that if someone thought is sentenced to life without of that at possibility some time parole, they’re going get paroled?” court sustained the Defense prosecutor’s objection. counsel then asked: “What is your about someone feeling who is sentenced to life without What is view possibility parole? your about that? Is that a harsh penalty view?” The your bench, court counsel to the interrupted, brought explained “these kinds of are in view of the questions inappropriate fact that we used the ... As to the questionnaire. first there’s been a question, recent California Court case that has Supreme said it’s expressly wrong for the to tell the judge that life without the imprisonment possibility means that. So that’s I parole just sustained the to that why objection form of second, question. As to where you’re now is them going get [¶] about talking that are in the things and the reason I questionnaire, allowed the was to save time.” The questionnaire court explained questionnaires were “sufficient and to feather out adequate any biases or strong their— in either direction.” prejudices

Defendant is correct that a mistaken belief that a sentence juror’s life without the imprisonment possibility result in could parole may parole substantially impair juror’s to follow the law if the ability juror’s mistaken belief was so held that it would his or her strongly impair ability scheme, follow court’s instructions. Under California’s sentencing capital 1084 death or in whether the shall be confinement penalty

the “shall determine jury . . life the of . . . . for a term of without possibility parole. state prison [¶] that . If the of fact determines the circumstances mitigating . . trier [¶] the the trier of fact shall a circumstances outweigh aggravating impose for a of life the of state term without prison sentence confinement life (§ 190.3.) of If a believes that without the juror possibility parole.” of that reason that regards in fact allows for parole parole possibility —and in a to the death sentence as an alternative inadequate penalty particular under “a would have labored false choice between sentenc- juror case—-that a limited sentencing to death and him to of period ing [the defendant] 154, (Simmons v. South Carolina (1994) U.S. 512 161 incarceration.” 133, words, 2187].) S.Ct. In other a mistaken belief that the L.Ed.2d 114 [129 than the actually may alternative death is more lenient law provides determination in favor of death. bias that juror’s penalty improperly is also correct that our on penalty phase jury cases are in the context. We have entirely apposite jury instructions not selection commutation, trial that if the raises the of the court must said jury prospect “ make ‘a short that the Governor’s commutation indicating statement power life but to both without of applies possibility parole] emphasizing [death of the duty that it would be a violation the consider of juror’s possibility ” (People the sentence.’ v. determining such commutation appropriate 99, 746, Letner Tobin (2010) 50 Cal.4th 203-204 Cal.Rptr.3d But, as (Letner).) 235 P.3d defendant he was entitled to an recognizes, 62] it chose life the of informing jury instruction that if without possibility v. Arias (People (1996) he never be from would released parole, prison. (Arias).) P.2d Cal.4th Nor was Cal.Rptr.2d 980] “ entitled to an should ‘assume’ or that the jury ‘presume’ instruction (Letner, 206.) out.” sentence will be carried We have that “to p. explained it must that a of life instruct assume sentence without of will be for of means defendant the rest parole imprisoned possibility or her life it fails to acknowledge is inaccurate because Governor Williams 43 Cal.4th (People retains of commutation.” power 1035].) 181 P.3d 647 [75 observes,

However, believes a of juror who sentence without be commuted is different may juror life from parole qualitatively believes defendant sentenced to “life without the who possibility parole” 190.3) belief (§ under that sentence. The first is based on eligible parole remote, be lawfully however sentence could reduced possibility, contrast, belief at some in the future. the second reflects a By point the law or the law. inability follow misunderstanding accept future could introduce Although legislation, Legislature, through parole for inmates now sentenced to life without the eligibility possibility parole, the sentence of “life without it is mistake of law believe currently section 190.3 allows for possibility parole” prescribed by parole. Because the standard do not instructions elaborate on the penalty phase 8.84, 8.88; the (CALJIC of life without of meaning possibility Nos. parole 760-761), CAJLCRIM Nos. and because circumscribes a precedent capital (Arias, supra, defendant’s to alternative at right instructions 13 Cal.4th 172; Letner, supra, 50 206), Cal.4th at instructions are to p. p. unlikely correct the latter of mistaken belief. type

It is settled that defendant entitled to to capital use voir dire and excuse who identify jurors would vote in favor prospective automatically (Morgan Illinois (1992) of death. 504 U.S. 735-736 L.Ed.2d 2222].) 112 S.Ct. Here defendant contends he entitled to use voir dire to whether a life without explore juror’s beliefs about the prospective possibility of would to parole juror’s ability framework impair sentencing apply contention, set forth in California To on law. this defendant’s support briefing cites showing studies this mistaken belief is common and appeal However, counsel did such bring defense evidence to the trial prejudicial. court’s attention or otherwise demonstrate the to need all subject prospective to voir dire on this issue. the trial court did its jurors Accordingly, not abuse discretion in dire voir on the that the limiting ground by responses provided on their sufficient to prospective jurors questionnaires were determine their life whether views about without the of would possibility parole prevent (Code Proc., them from the law. Civ. following court inmay, § [“The discretion, exercise of its limit the oral and direct of questioning prospective by counsel.”].) jurors

Moreover, need there was no for voir dire to ascertain specifically Prospec- tive Juror life her P.C.’s views about without the of because parole possibility made other clear that she was not to questionnaire serve responses qualified aon She “Yes” to the whether she would capital jury. responded question “automatically vote in favor of refuse to of the life penalty imprisonment automatically death, without the vote for a of possibility parole penalty evidence, of the without considering any any aggravating also mitigating factors.” P.C. checked the “No” box in to response about to “set aside being your feelings able follow question personal it.” law as Court These defense an gave counsel explains responses and, confirmed basis to P.C. voir dire if she her independent during question law, inability follow the her for cause. challenge v. Stewart People Relying on 33 Cal.4th 271], P.3d that the erred argues by trial court “refus[ing] allow oral voir dire did not juror when questionnaires provide adequate for basis whether were able serve without substan- determining jurors Stewart does not trial tial defendant’s impairment.” argument support Stewart dire. held that trial court limited voir court in this case improperly for cause based prospective jurors in excusing potentially qualified erred (Id. answers questions questionnaire. solely ambiguous in Stewart excused five over 448-450.) jurors The trial court pp. it the defendant wanted to jurors so was clear which defendant’s objection, contrast, Here, who PC. —the only juror squarely retain. prospective life without misunderstanding parole indicated a possibility —was she The record was excused unrelated suggests not seated on the jury. voir dire. Defendant does not identify the start individual reasons before an ambiguous who were retained any improperly despite specific jurors circumstances, In we find no abuse of these discretion response. questionnaire the trial limitation of voir dire. in court’s Penalty

III. Phase Issues Conditions Prison A. that the court erred the during penalty trial argues phase life- “about conditions which

excluding testimony prison expert were statistics unlikelihood regarding inmates without-parole subject,” sentence, and commute a life without prison Governor would parole do work that could while a socially prisoner serving” “the useful appellant life sentence. have held that

“As defendant we evidence acknowledges, repeatedly of for a a sentence of life concerning serving conditions confinement person is not relevant determination without possibility parole penalty character, it on defendant’s or the bearing because has no culpability, the offense either the federal Constitution or section circumstances of under v. (People 190.3, (2010) (k).” Martinez 47 Cal.4th factor People Thompson 877]; 224 P.3d see Cal.3d (Thompson).) “More 138-139 753 P.2d Cal.Rptr. importantly, 37] confinement for a life escribing person serving future conditions of ‘[d] in involves as to what future officials without possibility parole speculation The evidence another branch of will or will do.’ government [Citation.] security to admit assumed that measures sought specific life unchanged supposed life would remain daily throughout prison (Martinez, 963.) at sentence.” p. trial statis excluding testimony concerning

Nor did the court err in it that a life without unlikely tics how sentenced regarding prisoner consideration via “would ever be to the Governor for parole parole presented Thompson should not be commutation.” We recognized invited to on whether a sentence speculate defendant’s of life without the be commuted. possibility parole might 45 Cal.3d (Thompson, supra, 130.) p.

As to “the useful socially work that could do while a appellant prisoner sentence, a life serving” record does not reflect that the trial court witness from to such precluded expert testifying matters. After the trial court ruled that the witness would not be expert concern- permitted testify confinement, the conditions of ing clarified that she did not prosecutor to the object testifying defendant “would be a expert individual peaceful which in our view could prison,” on encompass testimony opportunities defendant to do socially useful work in The trial court prison. agreed witness would be to “take the stand and expert permitted give opinion it,” that whether adding to do so was “a tactical decision made by counsel and defendant whether want to they Defense counsel pursue topic.” “No, I’m not it.” replied, doing

B. Counsel’s Argument Defense Defendant argues trial court limited defense unconstitutionally counsel’s to the argument comment on the penalty phase jury by precluding conditions of confinement of a serving sentence of life without the prisoner of possibility parole. the trial court’s

Following ruling about excluding expert testimony prison conditions, defense counsel asked if he could “make reference to that in final answered, closing argument.” The trial court “No.” During closing argument, verdict, defense counsel told the jury confined him to “by your you’ve in a live six cell surrounded by eight brick and a metal door for the rest of his life.” The trial court sustained the Defense counsel prosecutor’s objection. said, then his comment and without “Life rephrased objection: without of means for the possibility parole rest of Lam natural life he Nguyen’s to be locked in going up prison.”

Defendant argues the trial court erred because the cases that “[e]ven have the exclusion of evidence with to the nature upheld of LWOP respect sentence do authorize explicitly defense counsel to that matter to the argue jury.” was not denied the to the matter. In opportunity argue “[djefense we stated in dicta that Thompson, counsel’s remarks to the jury during closing argument as to what life without of would possibility parole mean and what an it really unending would be were . . . within punishment the of the extent legitimate argument to the remarks on the scope impressed 29; 131, the of its jury gravity task.” 45 Cal.3d at fn. (Thompson, supra, p. 1083, see (2002) v. 28 Cal.4th People 1159-1160 Cal.Rptr.2d [124 Gutierrez 373, could “the full counsel’s characterize argument 52 P.3d 572] [defense life in without of possibility parole”]; nature of a sentence of prison 815, 122, 802 P.2d Daniels (1991) 52 Cal.3d 877-878 People Cal.Rptr. v. . in . . the of rigors counsel’s “interest telling jurors 906] [defense in order to them their upon gravity responsibil confinement impress be in his argument.”].) .. . could satisfied ity case, to the instant defense counsel was convey jury

In permitted life without parole “impress sentence of severity upon jurors of its task” without gravity by telling possibility “[l]ife life be for the of Lam natural he is Nguyen’s going means rest parole 131, supra, 29.) Thompson, (See locked in 45 Cal.3d fn. p. up prison.” defense trial court did not abuse its discretion counsel’s precluding attempt measurements and features of the cell in which describe precise sentence, serve on which the defense had defendant would matter no evidence. proffered

The trial court denied defense counsel’s “to com properly request ment on other cases that are well known where LWOP was reasonably “ occasions, have As defendant ‘On numerous we imposed.” acknowledges: a trial court’s refusal “to allow defense counsel upheld subject compare [citation], to note the crime to other well-known murders” penalty imposed v. (People Virgil (2011) cases ....’” 51 Cal.4th such Farley 553], quoting People P.3d 46 Cal.4th Cal.Rptr.3d 361].) 210 P.3d 1130 [96 Lingering Doubt C. trial on conflicting

Defendant the court instructions argues gave to the at doubt two alternate who were substituted into lingering jurors jury the of the The to the at the end of instructions beginning penalty phase. jury the defendant has included “The in this case following: the penalty phase of degree. been found two counts of murder of the first The guilty allegation under been the murder committed circumstance has special jurors . . . Alternate who have been as placed now found to be true. specially trial must the jurors phase guilt phase this the verdicts during accept of on the findings during appropriate penalty. deliberations The should or the or discuss either the deterrent effects of capital punishment consider of or evidence any cost of either If evidence circumstance penalty. mitigating of or his character arouses background sympa- defendant’s any aspect in the may determining or consider thy, you empathy compassion, any have doubts consideration you lingering penalty. appropriate If after full the as to the guilt the evidence presented during guilt phase you part defendant, degree culpability or as to the determination as to which doubt in making your that lingering consider may appropriate.” penalty likelihood that is at least a reasonable argues

Defendant “[t]here as incon have seen these two instructions alternate would jurors the former are to the jury in this case similar The instructions challenged sistent.” Cain 10 Cal.4th People in instructions upheld Cain, the instructions here required Like the instructions in P.2d 1224]. made “were guilt that the in findings phase the new jurors accept (Id. 66.) “did not purport at The instructions a reasonable doubt.” p. beyond whether evidence jury, that could be considered to limit the guilt phase 190.3, in (§ (a)) factor of the crime the circumstances assessing no (Ibid., omitted.) fn. There is doubt.” the existence of considering lingering the instructions would have interpreted to think that the jurors reason to consider and not the former alternate jurors, only original jurors, permit to vote against that allows the jurors doubt. “An instruction lingering or truth of have residual doubt as guilt death if they penalty phase jurors accept even it though requires circumstances is sufficient special (Id. 67.) verdicts.” p. the guilt phase Judicial Elections

D. and a fair to due constitutional rights process Defendant claims that his was, judge the trial court and are violated because being trial were violated are, elections. Defendant subject judicial and the of this court justices because cannot be impartial are to election maintains that who judges subject defendant. rule in favor of they capital removed from office if might be they U.S. 515-517 Tumey v. Ohio (1927) 273 cites 437], a conviction for possessing which reversed L.Ed. 47 S.Ct. the trial Prohibition Act because under the Ohio intoxicating liquor A local ordinance provided of the village. conducted by mayor the defendant from $100 half of the fine collected would receive village “ case, each his costs in retain the amount of would ‘receive or the mayor ” such cases.’ hearing salary, compensation addition to his regular in a acting officers court 519.) recognized U.S. at (273 high “[t]hat p. interest their by are disqualified capacity judicial quasi-judicial court noted (Id. decided . . . .” 522.) at The high p. to be controversy benefit from indirectly who would the fact that are also judges taxpayers “the circumstance them because enough disqualify collection of fines is not been a case had to act in such not disqualified that there is no judge equally is However, (Ibid.) certainly disqualification to affect held question.” substantial, interest in direct, pecuniary “has a personal, if the judge required (Id. 523.) in his at against a conclusion case.” reaching p. [the defendant] Here, from elections is indirect and any stemming judicial interest nonpecuni- and affects all California ary, judges equally. v. A. T. Caperton Massey Coal Co. (2009)

Defendant also relies upon 2252], L.Ed.2d 556 U.S. 129 S.Ct. which held that a of the West Court of have justice Virginia should recused Supreme Appeals $50 himself from an from a million verdict a coal appeal against company $3 because the board chairman of the coal had contributed million company observed; election. The court justice’s high “The support proper “ constitutional ‘whether on the . case . . ‘would offer a inquiry sitting to the . . . . . average to . lead him not to hold the possible temptation judge ” ’ nice, balance clear and true.’ . . . or kind of degree [Citation.] ‘[W]hat interest is sufficient to a from judge “cannot be defined with disqualify sitting ’ ” (Id. 879.) at The court noted that each that had precision.” high case p. held that a must be recused on this basis “dealt with extreme judge facts (Id. 887.) created an unconstitutional bias.” No such probability p. extreme facts a denial of due are here. demonstrating process present to the Death Challenges Penalty Statutes

E. summarily raises numerous death challenges California’s that, notes, scheme penalty this court has considered repeatedly Defendant asks that we rejected. reconsider these but no rulings provides reason for so. We restate the persuasive doing here. applicable rulings 190.3, (a), “Section factor which to consider the circum- permits stances of the crime in whether to deciding death does impose penalty, not license the of the death arbitrary capricious imposition penalty.” v. Nelson (People 51 Cal.4th 246 P.3d (Nelson).) in the federal “Nothing Constitution requires penalty 301] jury to make written of the factors it phase findings finds aggravation that a mitigation; agree unanimously circumstance particular aggravating exists; find all factors aggravating beyond reasonable doubt or proved evidence; preponderance find that aggravation outweighs mitigation doubt; beyond reasonable or conclude beyond reasonable doubt that death (Ibid.) is the appropriate penalty.”

“The consider jury may criminal at the properly unadjudicated activity and need not make a penalty phase unanimous on each instance of finding (Nelson, such supra, 226.) 51 Cal.4th at activity.” trial court is not p. to instruct the required jurors “they consider acts penalty phase may of prior as an circumstance unless unadjudicated criminality aggravating they

1091 find defendant those criminal acts . . . .” committed unanimously [citation] 82, 865, (People 55 179 281 P.3d (2012) Cal.Rptr.3d Valdez v. Cal.4th [144 924].) not of for the and does jury guilt phases

“The use the same penalty deprive v. Thomas jury.” (People (2012) and of an unbiased 53 defendant impartial (Thomas).) 771, 533, 269 P.3d Cal.Rptr.3d Cal.4th 1109] [137 the could consider facts Instructing phase jurors they penalty defendant’s did not in conviction assault underlying prior place 103, v. (People Bacigalupo (1991) a second time. Cal.4th 134-135 jeopardy v. Bacigalupo 335, 559], in 820 P.2d vacated on other grounds Cal.Rptr.2d [2 5, 32].) (1992) 506 U.S. 802 L.Ed.2d 113 S.Ct. California 190.3, (i), Section factor which consider defendant’s permits jurors unconstitutionally vague. in is not age determining penalty, appropriate (Thomas, supra, 833.) 53 Cal.4th p. to delete from the instructions arguably

The trial court was required (Thomas, supra, 832-833.) 53 Cal.4th at sentencing pp. factors. inapplicable 190.3, (a) (the in section factor circum Sentencing factors such those crime) (k) of the other circumstances extenuates (any stances factor Tully v. unduly vague. (People crime) are not gravity (Tully).) 952, 1067, 146, 282 Cal.4th P.3d Cal.Rptr.3d 1069 [145 173] in the instruction’s list of “Including phase mitigating penalty potential 190.3, (§ (d), as ‘extreme’ factors ‘substan adjectives (g)) factors such (id., tial’ to the factor does not erect barrier (g)) jury’s impermissible (People v.Manibusan (2013) 58 Cal.4th evidence.” mitigating consideration (Manibusan).) the trial court 314 P.3d Nor was Cal.Rptr.3d 1] in the instructions a burden of jury proof selecting required specify (Tully, supra, 1068.) 54 Cal.4th at appropriate penalty. p.

“ narrows the class murder- “adequately ‘California’s death law penalty ers not violate the Amend- Eighth the death does subject penalty” ” (Tully, supra, 1067.) ment.’ 54 Cal.4th at p. ... if the evidence mitigating

“There is no need to instruct jury evidence, a sentence of life must outweighs impose aggravating DeHoyos parole.” (People (2013) 57 Cal.4th without possibility 1].) 303 P.3d 150 [158 were not broad vague “The instructions penalty impermissibly phase ‘ “ were ‘so determine whether factors aggravating

directing jurors 1092 with the substantial factors that it warrants death comparison mitigating ” ’ ” (Manibusan,

instead of life 100.) without 58 Cal.4th at parole.’ supra, p. Review for intercase is not proportionality constitutionally compelled. 37, 42, 29, (1984) v. (Pulley Harris 465 U.S. 50-51 L.Ed.2d 104 S.Ct. [79 871]; (2013) v. Contreras 58 Cal.4th People 173 Cal.Rptr.3d 450].) P.3d 314 And because defendants are not situated to capital similarly defendants, California’s death law does not noncapital penalty deny capital defendants certain equal protection providing procedural protections (Ibid.; defendants but not to noncapital defendants. capital People Jennings, 690.) 50 Cal.4th at Nor is the death supra, in this state p. penalty applied rendered unconstitutional of international law through operation and treaties. (Tally, 1070.) 54 Cal.4th at supra, p.

“The death is not cruel penalty inherently or unusual punishment.” (Manibusan, 100.) Cal.4th at supra, 58 p. we defendant’s claim that

Finally, reject the cumulative of the impact deficiencies has renders death alleged California’s law constitu- penalty infirm. We have tionally each of individually rejected defendant’s challenges law, to California’s death and claims are penalty no more compel- “[s]uch . . . ling when considered . . . .” together v. Garcia (People Cal.4th 751].) 258 P.3d

F. Cumulative Prejudice “Defendant contends cumulative effect of guilt errors penalty phase reversal of his death sentence. requires We To the disagree. extent we erred, concluded or assumed that the trial court no single error warranted reversal, and we are not persuaded reversal is warranted when those same are (Nelson, errors considered nonprejudicial collectively.” supra, Cal.4th at 224-225.) pp.

G. Assistance Counsel Ineffective that if this court provisionally argues rules defendant failed review, preserve any claims for foregoing defense counsel would have ineffective assistance of provided counsel. But this court has not so ruled.

IV. Conclusion We 186.22, strike the sentence enhancements under Penal Code section (b)(1) subdivision from the sentences in a imposed actively participating 3, 5, 7, 10, gang counts and 14. In all other respects, judgment affirmed. Chin, J., J., J., J., J., Corrigan, C. Werdergar, Kruger,

Cantil-Sakauye, concurred. nature, their

CUÉLLAR, J., Concurring Dissenting. By very capital — closely raise that our court has no choice but address. After issues appeals and the defendant’s conviction for considering aiding abetting attempted not that can stand. Accord- of I do believe conviction Nguyen, murder Tony dissent from that of the court’s portion opinion. I ingly, respectfully “ must, or ‘by and a defendant act abetting, be of guilty aiding To ” advice,’ aid, of or the commission a crime. encourage, instigate promote, 1, 84, P.2d (1997) 15 40 931 v. Marshall Cal.4th Cal.Rptr.2d (People [61 the knowledge The defendant must act both with of 262].) principal’s “ of committing, encourag and ‘the intent or unlawful with purpose purpose ” the of (Ibid.) the of the offense.’ In case or commission ing, facilitating murder, must the the defendant and offense of aiding abetting attempted 613, (2003) to Lee 31 Cal.4th 624 (People intend kill. v. specifically [3 402, as an be of murder guilty 74 P.3d attempted 176] [“[T]o abettor, encouragement knowledge must aid or give aider and person to of the facilitating of direct intent kill and with the purpose the perpetrator’s the intended means killing of direct perpetrator’s accomplishment —which and intend as an aider abettor must murder person guilty attempted 60, 547, 674 kill.”]; (1984) 35 Cal.3d 560 Cal.Rptr. to v. Beeman People [199 to do some the of the offense includes the intent P.2d definition [“When 1318] crime actus reus of the beyond some the consequence act or achieve [citation], intent of and abettor must share specific perpetra- aider is relevant factor tor.”].) at the scene of crime one Although presence and aiding whether defendant determining guilty consider may (See, e.g., to a conviction. alone is insufficient sustain abetting, presence P.2d (1969) 70 Cal.2d Cal.Rptr. v. Durham People [74 828].) P.2d (1957) 156 133-134 198]; Villa People Cal.App.2d v. defendant, to is it for a subsequent perpetration Neither sufficient die; be offense, to aid in the offense “must that the victim the intent desire Cooper offense.” (People ‘commission’ during formed prior 450, 811 P.2d (Cooper).) 53 Cal.3d Cal.Rptr. 742] shot is at the time was Tony Nguyen of what took place The evidence recounts, seated in the As defendant was thin. the majority extraordinarily Phan in the front seat. car Tran. sat by Nghia passenger back of a driven My by Tony Nguyen car to follow a car driven point, began At some car Tran’s Boys of the Cheap gang. several other members occupied car, Lac, car, of Tony’s Kevin one of the and Vinh Tony’s occupants passed car as the two cars Tony’s passed. back at defendant stared testified restaurant, idled lot a fast food car into the parking Tran’s then pulled there Tony’s until car and then out of the by, pulled lot to follow passed car. two each Tony’s cars next to other at red stopped light. When shot signal green, turned Phan neck before Tony Tran’s car pulled away. days Several after the defendant visited Lac’s shooting, apartment asked, “What’s with the up cops?” above,

Had the been limited to the evidence described we prosecution would undoubtedly conclude there was insufficient evidence to convict defendant of aiding abetting murder. The evidence attempted specific Tony showed that defendant Nguyen’s shooting was in the car from present shot, which that defendant was Tony fellow accompanied by gang members, and that defendant “stared” at car Tony’s prior shooting. While the car’s driver “stalked” car arguably Tony’s prior shooting, the driver and other no evidence demonstrated defendant was in or even aware of the nature complicit of the car’s immediately maneuvers before the And shooting. while defendant to spoke ask, Lac days several after the to shooting “What’s with the up cops?,” interaction to fails elucidate or defendant’s of intent in knowledge to aid (See commission of the when it occurred. shooting Cooper, 53 Cal.3d supra, at 1164.) p.

So the evidence incident-specific above sheds minimal light on what action, aid, if any, defendant took to encourage, or promote, instigate Tony It even Nguyen’s shooting. sheds less on whether defendant light specifically Indeed, intended death. I Tony’s do understand contend majority to that defendant’s conviction and aiding abetting murder of attempted can be Tony sustained based on the Nguyen solely evidence to the specific itself. shooting

With so little evidence to the specific Tony Nguyen shooting supporting murder, defendant’s conviction for attempted was left to prosecution rely on Detective Mark Nye’s is gang expert testimony. This problematic given what limits of little can be from it. gleaned Nye’s testimony broad, defendant, none remarkably almost of it pertained to specifically fact, or Family, even Vietnamese In Nip sole gangs. Nye’s discussion of either defendant or the to a Family was limited brief that he Nip confirmation was familiar with believed him to be a member of the Nip brief account Family, similarly of the origins (which was Nip Family an outgrowth another Vietnamese Natoma gang, Boys), and an opinion Family was in war with the at Nip the time of the Cheap Boys in this shootings case.1

1 Nye securing also recounted his role in defendant’s arrest. facts to defendant even any Nip

Rather than focusing specific the culture and behavioral of “Asian” patterns testified about Family, Nye ones, at one contrasted Asian gangs Hispanic in gangs general. Nye are lot intelligent, that Asian “a more more gangs sophisti- concluding point that, relative to Nye also testified counterparts. cated” than their Hispanic in their live “turf-oriented” Hispanic gangs “prey upon people in get business” to “involved “way doing Asian community,” gangs’ be at time.” The wherever they particular street warfare happen able to ready, violently members are gang willing, assertion Asian at out be in moment turned any place any confront rival members gang rivals, they’re He “If encounter their testimony. they in Nye’s opined: theme to have warfare shooting right They’re going gang to have a there. going on, when asked Nye affirmatively on the streets.” Later responded there right that had stage gang members of two Asian reached gangs whether whenever “would be to kill whoever was the other trying gang” warfare culture, “as their very also claimed that Nye part there was opportunity. time.” any a battle occur at gangs expecting are] [Asian engage to this of Asian gangs being prepared Adding picture assertion Nye’s all times everywhere repeated violent confrontation time every multiple “hunt” their rivals. According Nye, that Asian gangs for rival actively gang members out look go together, “they Asian gang go “are mobile and gangs extremely they testified that the Nye members.” “Every for their rivals.” community hunting from to around place place car, gang. for with another they’re engagement time in the they go ready rivals.” ready they anticipate confronting They’re in which Asian as cohesive Nye gangs highly groups Finally, portrayed a and commitment to understanding member has clear of every each and “an octopus an Asian as Characterizing gang rules and of the goals gang. each require gang that the rules of opined gang membership many legs,” Nye a confronta- during act for his fellow members “backup” gang member to as Thus, shooting a a during member who was in car merely present tion. gang they were to something as because backup, happen could be acting “[i]f car, back would be to expected have to bail out of that member would it be it take over somebody, somebody, Be assault be shoot that it person up. vehicle, to be to expected whatever it be. He is may going of the driving in members Nye gang the individuals.” testified that “act[] back up and that even an with rival gangs, concert as confrontations group,” during acts as shoot these confrontations during who does individual personally is going he do that everything is shooter] because backup “expected [the do,” as other as just aggressive person.” and “needs be The effect of was to a static of Nye’s testimony Asian paint picture gang and, by defendant—as ac- implication, always everywhere members— tively seeking violent confrontation. This which contained no allow- picture, motivations, ance for among variation individuals’ intentions or or ebbs and violence, in a flows for was overbroad and gang’s appetite its simplistic it face. And was contradicted some ironically, evidence actually by to the Tony Nguyen specific shooting. Nye’s repeated, claim unqualified rival in members war would one gang engaged gang violently attack any another at in stark stands contrast to Kevin Lac’s acknowl- opportunity, in lived the same edgement apartment building defendant and had him, of, know, five, into kind six “bumped you times.” On none these violence, occasions did the interaction result of the spite fact Moreover, defendant was that Lac belonged aware to the Cheap Boys. defendant was able to aside his violent apparently put intentions long enough Lac, ask “What’s peacefully with the up following the cops?” Tony Such inconsistencies Nguyen shooting. between Nye’s and the testimony facts surrounding Tony Nguyen did not shooting necessarily Nye’s render inadmissible, but testimony cases have found that previous gang expert limited testimony probative value when it is contradicted by facts of the case. (E.g., People (2013) v. Rios Cal.App.4th Cal.Rptr.3d [gang expert’s testimony possession a stolen vehicle 687] could further or assist criminal gang’s activities because a stolen vehicle could be used to evade law enforcement or commit drive-by shootings Code, insufficient 186.22, sustain gang enhancement under Pen. § (b), subd. when there was no evidence that defendant used the stolen vehicle of these In any re Daniel purposes]; C. 195 Cal.App.4th 1363-1364 [gang testimony was insufficient to expert’s 337] sustain conviction when the “underlying premise” expert’s opinion incorrect”].) “factually aside,

Contradictions value of Nye’s was undercut probative testimony further its generality. Not did only Nye’s testimony include little very evidence about the Family in but Nip broad observations particular, Nye’s not, itself, about the culture of Asian general does in and of gangs what prove defendant’s and actions intentions were with to incident. respect any given (See 1148, v. (2009) People Samaniego 172 Cal.App.4th 1179 Cal.Rptr.3d [91 an about opinion gang knowledge 874] [while members’ of their associates’ culture, “may intentions be true generally it regarding gang is still speculative in its to the application conduct of in a specific gang members particular case”].) No human acts in all being instances as even a drawn carefully of his cultural affiliation portrait would Nor is it safe to predict. simply assume that even the most of loyal adherents a fiercely share that group otherwise, goals association’s or intentions all times. To conclude and thus find a defendant based on guilty almost entirely he must assumption

1097 and on in accord with rules culture any have been acting group’s occasion, a based the mere defendant on fact effectively punishes particular v. Guillen (See People disallowed. clearly of gang membership something — 227 evidence (2014) [“[G]ang 992 Cal.App.4th Cal.Rptr.3d 703] [174 crime.”]; is aider and abettor to a alone cannot a defendant an standing prove 1243, 1246 of U.S. v. Garcia 1998) Cir. 151 F.3d (9th gang [“[E]vidence has itself that an individual entered criminal cannot membership prove re In Y. (1977) Wing of rival gangs.”]; to attack members agreement is gang membership Cal.App.3d Cal.Rptr. 390] [defendant’s it no function other than to allow inadmissible when serves evidentiary inferences “unreasonable . . that of the offense guilty . [defendant] [is] Rodriguez ”]; of association’ cf. People by charged theory ‘guilt 290 P.3d Cal.4th 1143] [“Mere a crime.”].) in a criminal street is not knowing gang active participation true members indeed commit violent or other serious many gang It is offenses, under subject criminal and such is to severe our activity punishment Code, 186.22, (See (b).) But we remain criminal statutes. Pen. subd. § conviction of a member determining any given gang for whether responsible the kind of evidence allowing is in accordance with law and supported by reasonably guilty. a fact finder to conclude at least somewhat relevant as evidence of testimony While was Nye’s liability Tony shooting defendant’s for aiding abetting Nguyen not, law, matter it could as the majority thus allowed as a of evidence neither, view, concedes, the sole of But guilt. my serve as evidence left bridge evidentiary gaps considerable Nye’s testimony adequate shooting. thin of defendant’s role in the While Tony Nguyen evidence concrete, might actions member specific gang testified as Nye multiple as a fellow member in a confrontation —such serving take “back up” gang members, driver, over for the as the rival assaulting gang taking getaway did or intended to do any shooter —there is no evidence that defendant Instead, actions at the only those evidence of defendant’s things. specific car Boys’ time of was that he “stared” at the shooting Cheap prior of defend- conceivably This indeterminate shooting. gesture example them— the car or intimidate ant identifying occupants attempting acting members as gang both activities that mentioned Nye examples for at best consistent with myriad one another —but it is backup equally other that would find such an action either innocent or inadvertent. inferences defendant, beyond finder infer from stare that To believe the fact could this doubt, death is aided and intended his too Tony’s shooting reasonable any me to great leap support.

And it too a for me great admittedly demanding remains leap despite the evidence. A sufficiency challenges standard review governing light view whole in the most favorable to reviewing court must “the record 1098

the judgment” to determine whether it contains sufficient evidence “such that a reasonable trier of fact could find the defendant guilty beyond reasonable 557, doubt.” v. (1980) 431, Johnson 26 Cal.3d (People 578 Cal.Rptr. [162 738]; P.2d 307, see Jackson v. Virginia (1979) 560, 443 U.S. L.Ed.2d 319 [61 whether, 99 S.Ct. relevant is question after 2781] [“[T]he viewing evidence in the most favorable to the light prosecution, any rational trier of fact could have found the essential elements of the crime beyond reasonable doubt.”].) But our strong favor of presumption factual upholding determi nations where reasonably in no possible way vitiates our responsibility “ ‘ ensure that evidence sustaining conviction is “credible of solid ’ ” value,” 800, v. Hill (People 17 Cal.4th Cal.Rptr.2d 673]), P.2d and that inferences a conviction are supporting “of such substan that a reasonable tiality trier of fact could determine beyond reasonable doubt” that the inferred facts are true (People Raley (1992) 2 Cal.4th 712]). 830 P.2d This case replete examples criminal standard, convictions by evidence supported meeting this including defendant’s conviction on two counts of murder and multiple counts of murder, attempted premeditated as well as active in the illicit participation activities of a criminal street Not so gang. with the evidence surrounding count, Tony Nguyen On this shooting. the evidence most directly relevant insufficient, own, manifestly on its conviction, defendant’s support while Nye’s testimony least as it related to this count—was neither —at “credible” nor “of solid value” and thus could not substantially support inference that defendant aided and abetted the murder. attempted

Which is Iwhy dissent respectfully from the court’s judgment upholding defendant’s conviction for the murder of attempted Tony In all other Nguyen. I respects, join court’s opinion. for a

Appellant’s petition rehearing denied October 2015. notes been the court “did not find that the should properly subpoenaed,” testimony nor do think I should this instruction.” give or I special be stricken precluded, or down” the modify court also denied defendant’s request The “ton[e] instruction. not find statement it “did Defendant claims court’s defendant be stricken shows that had asked should testimony precluded” trial did not that defendant had say relief. But the court requested for such relief, did so. record does not indicate defendant Nor does such and the claim the trial cite his court should authority defendant any support its own motion. have sanctions imposed Citing People Riggs 44 Cal.4th 363], refusing P.3d defendant claims the trial court erred in proposed Riggs timely instruction. had failed disclose jury special 1054.5, names of witnesses in of section to the alibi violation prosecution (b), . may which that “the court advise the . . any subdivision provides “

Case Details

Case Name: People v. Lam Thanh Nguyen

Court Name: California Supreme Court

Date Published: Aug 13, 2015

Citation: 191 Cal. Rptr. 3d 182

Docket Number: S076340

Court Abbreviation: Cal.