P. v. Nguyen

Filed 1/5/09 P. v. Nguyen CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant John Nguyen was convicted after jury trial of attempted murder (Pen. Code, 664, subd. (a), 187).[1] The jury found true allegations that defendant personally and intentionally discharged a handgun and that he personally inflicted great bodily injury to a person not an accomplice ( 12022.53, subd. (d), 12022.7, subd. (a)) during the commission of the offense, but not true the allegation that the attempted murder was willful, deliberate, and premeditated ( 189).[2] The trial court sentenced defendant to prison for the indeterminate term of 25 years to life consecutive to the determinate term of five years.

On appeal, defendant contends that (1) the testimony by the investigating officer that defendant was an associate of a possible suspect, and that they had been contacted together at a previous time, violated defendants federal and state due process rights to a fair trial; (2) the trial court violated defendants due process rights by refusing defendants proffered instructions on consciousness of guilt; and (3) the prosecutors failure to disclose inculpatory evidence violated defendants rights to due process and of confrontation. As we find no due process violations, we will affirm the judgment after modification.

Defendant has also filed a petition for writ of habeas corpus, which we ordered considered with this appeal. In the petition, defendant contends that his counsel rendered ineffective assistance and that newly discovered evidence fundamentally undercuts the prosecutions case against him. We have disposed of the petition by separate order filed this date. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)

BACKGROUND

Defendant was charged by information with attempted murder ( 664, subd. (a), 187; count 1), and cultivation of marijuana (Health & Saf. Code, 11358; count 2). The information further alleged as to count 1 that the offense was willful, deliberate, and premeditated ( 189); that defendant personally and intentionally discharged a handgun ( 12022.53, subd. (d)), and that he personally inflicted great bodily injury upon a person not an accomplice ( 12022.7, subd. (a)). On May 30, 2007, the court granted defendants motion to sever the two counts and ordered trial to proceed on count 1 only. Trial began on August 14, 2007.

The Prosecutions Case

On Monday, March 21, 2005, Howson Nguyen[3] drove his younger brother Tung Nguyen to the Heo May Caf in San Jose in order to collect some money Hung Nguyen owed Tung for a gambling debt. Howson invited his friends Minh Trinh[4] and Kha Nguyen[5] to go with them, but Howson did not tell either Minh or Kha his purpose for going to the caf. None of the four lived in San Jose, but Tung often went to the caf to play Vietnamese poker.

When the four men arrived at the caf, defendant was sitting with Hung at a table in the middle of the caf. Several other men whom Tung recognized, including Hungs brother Tony Nguyen, and Anh Le, were elsewhere in the caf. Tung pointed out defendant to Howson, and referred to him as John. Defendant was wearing a gray or white baggy hooded sweatshirt that covered his waistband.

Tung and Howson walked over to Hungs and defendants table. Hung put some money on the table and Tung picked it up. Although Tung was expecting $700, there was only about $300. Defendant started talking loudly about the money and the debt and Howson loudly responded.[6] The caf owner told them to take their argument outside. Howson and Tung went outside, followed by defendant, Hung, and several other caf patrons, including Tony, Kha and Minh.

Although some people left the area, others stayed. Defendant acted as if he wanted to fight. He swung at Howson, hitting him in the head. Howson ducked down and grabbed defendants shirt. A struggle ensued during which time other people started closing in on them. A gunshot rang out. Howson pulled defendant down to the ground, turned around, and ran. Kha followed him. When Howson reached the end of the parking lot, he realized that he had lost his car keys. He could still hear gunshots coming from in front of the caf, so he ducked down between two parked cars. He heard a lot of people running and cars quickly driving away. Kha heard more gunshots and a window shattering, and saw people scrambling. He ducked down near Howson. Tung ran and hid behind a car elsewhere in the lot. He saw Minh fall down beside another car, and then saw defendant stand over Minh and shoot him one or two times before getting into a car. Tung was afraid, so he ran across the street to a 7‑Eleven store.

Minh watched Howson and defendant struggling. He ran when he heard the first gunshot, but fell to the ground when his right leg became numb. He realized that he had been shot in the lower back. Because he heard additional gunshots, he crawled between two parked cars to hide. A black Mitsubishi had been backed into its parking stall, and he hid on the drivers side of that car next to the front wheel and drivers door. Defendant and another man came to the car from behind it, defendant on the drivers side and the other man on the passenger side. Defendant had a gun in his left hand and pointed it down at Minh. Minh said hey, man, you got the wrong guy, and scooted back out of the stall. He raised his arms to cover his face when he saw defendant raise the gun and point it at his body. Minh heard a gunshot but did not feel the shot, which hit him in the arm. He could not move and saw the second man lean over the hood of the car and fire at him once or twice. He felt gunshot hit him in the stomach. He then saw defendant and the other man get into the car and drive off.

Minh used his cell phone to call Howson. Minh told Howson that he had been shot. Howson yelled to Kha that Minh had been shot, then he and Kha ran to look for Minh. Minh called 911. Howson and Kha found Minh with gunshot wounds, lying on the ground in the parking lot behind a parked car. Minh gave his cell phone to Howson and Howson talked to the 911 dispatcher. When the police arrived, Howson gave them a statement, but he did not tell them everything that had happened out of concern for his and his familys safety. Kha told the police what he had seen, but he did not know defendants name or Hungs name. Tung was found by the police at the 7-Eleven, but he did not tell them what he had seen because he was afraid. Howson, Tung, and Kha went to the hospital and stayed there until after a doctor told them the next morning that Minh was going to survive.

Minh was in critical condition when he arrived at the hospital the night he was shot, and required emergency surgery, due to having received five gunshot wounds. He spent eight days in the hospital. At the time of trial, he still had a bullet lodged in a bone in his lower back and numbness in his right foot. He also had scars and discoloration on his right arm and on his abdomen.

San Jose Police Officer Mike Braxton responded to the Heo May Caf around 9:53 p.m. on March 21, 2005, following a report that gunshots had been fired. He found Minh, who had multiple gunshot wounds, lying in front of an empty parking stall between two parked cars, being attended to by Howson and Kha. Officer Braxton also saw that a window of the caf, which was south of where Minh was lying, had been shot out. Paramedics arrived and attended to Minh, so Officer Braxton took photographs and then secured the scene. He walked around the parking lot and found shell casings, some in front of the caf and others to the east of that area. Officer Terry Foster also responded to the caf. He photographed and collected the shell casings. There were 13 nine-millimeter casings and two .380 casings.

Hung called 911 approximately two hours after the incident, and reported that he had received a gunshot wound to his leg. At the time of his call, Hung was at the 7‑Eleven store across the street from the caf. Officers responded and found that Hung had a single gunshot wound to his right thigh. The officers seized Hungs car, a white Honda, from the cafs parking lot. Hungs hands were swabbed and the clothing he was wearing was seized. The swabs and clothing were submitted to the county crime lab to be tested for gunshot residue. No gunshot residue was detected on the swabs, but gunshot resident was found on the right waistband area of Hungs pants. Because of this, Hung became a person of interest.

The morning after the incident, Tuesday, March 22, 2005, Officer Parker Hathaway was assigned as an investigator on the case. He contacted Minh in the hospital that afternoon, but he was not able to conduct a detailed interview because of Minhs condition.

Howson returned to the hospital to see Minh on Wednesday morning, March 23, 2005. Minh asked Howson what had happened. Howson told Minh that they had gone to the caf in order to collect some money. He said that Hung owed Tung money from a gambling debt, and that Hung had called to tell them to come collect it. Howson asked Minh who shot him, and Minh told Howson that it was the man who had been fighting with Howson. Howson said that that man was named John. Officer Hathaway spoke to Minh in the hospital again on Wednesday afternoon, March 23, 2005, around 2:00 p.m. During this interview, Minh told Officer Hathaway that Tung was arguing with a man inside the caf over a debt. They all went outside, where a man verbally confronted Howson. Minh heard a gunshot and felt numb. He knew that he had been shot and he tried to crawl to safety by a parked car. The same man who had struggled with Howson came and shot Minh while he was on the ground by the parked car.

Officer Hathaway spoke to Howson at the police station on Thursday, March 24, 2005, around 2:00 p.m. Howson said that he had been in a fight with a man named John over a gambling debt that a man named Hung owed to Howsons brother Tung. He said that John was 23 years old, about five feet eight inches tall with a medium build, and that he had been wearing a red long-sleeved collared shirt over a white T-shirt and a white or gray sweatshirt. Another officer interviewed Tung over the telephone on March 30, 2005. Tung told the officer he had heard multiple gunshots, but he did not tell the officer that he saw defendant shoot Minh.

Based on all the information Officer Hathaway then had, he prepared a photo lineup that contained a photo of Hung. On April 16, 2005, Tung was shown the photo lineup. He pointed out Hungs photo and he gave Officer Hathaway some contact information on Hung and Tony. Officer Hathaway interviewed Hung in September 2005. Hung was cooperative until he was asked specific questions about the caf incident. At that point, Hung asked for a lawyer, the interview concluded, and Hung was released.

Once Hung was identified as an associate of the shooting suspect, Officer Hathaway tried to determine who Hungs associates were. He was able to associate defendant with Hung as they had been contacted together at a previous time. About a year after the incident, Kha was shown some photo lineups and he picked out defendants photo. He did not recognize photos of Tony or Anh. Minh was later shown the photo lineups and he identified the photo of defendant as John, the person who argued with Howson and who shot Minh when defendant was by the drivers side car door. Minh also identified the photo of Tony as the other man Minh thought may have been the person who shot him while leaning over the hood of the car. Howson was shown the photographic lineups the same day Minh was. Howson picked defendants photo as that of the man he had been fighting with. Howson did not recognize Tony's or Anhs photos. Tung was later shown the photo lineups and he pointed out defendant. Tung said that defendant was sitting with Hung at the caf, that defendant and Howson argued, and that defendant hit Howson outside the caf prior to the shootings. Tung did not say that he had seen defendant shoot Minh.

Defendant was arrested in April 2006. He told Officer Hathaway at that time that Hung was his barber, but that he had not talked to Hung for six or seven months because Hung had disappeared. He also said that he knew Tony. Defendant owns a brown Honda.

Officer Hathaway tried to locate Tony, but could not find him. No nine-millimeter or .380-handgun was recovered. Officer Hathaway testified as an expert in how shell casing are expelled from semiautomatic nine-millimeter or .380-pistols, that such casings are typically expelled up and to the right. Some shell casings that were found at the scene were consistent with having been expelled from where Minh was shot. Other shell casings that were found were consistent with a gun being fired while on the move.

Howson testified at trial that he picked defendants photo out of the photo lineup and identified him as the man he had been fighting with, and that he identified defendant at the preliminary examination as the man he had been fighting with. Tung testified at trial that he only saw one man shoot Minh, that he knew the shooter as John Nguyen, and that that man was defendant. Minh testified at trial that he picked defendants photo out of the lineup, and that he was sure defendant was the man who shot him because defendant was the man who had fought with Howson and defendant stood right in front of Minh when Minh tried to hide by the car.

The Defense Case

Defendant testified in his own behalf that he is right-handed, not left-handed. He did not have a gun on the night of March 21, 2005, and he did not shoot Minh.

After defendant arrived home from work that day, his friend Tony called to ask him to go to the caf with him. Tony said that his older brother Hung owed some money and he needed to see if they could work something out. Tony drove defendant to the caf, and Hung arrived later. Then Tung came in with Howson, Minh and Kha. Defendant knew only Tung. Tung and Hung had a disagreement over a gambling debt, and defendant and Howson injected themselves into the discussion. The disagreement became more heated and the caf manager kicked everybody out.

The disagreement over the debt continued outside. When Howson approached him, defendant thought Howson was going to hit him, so defendant tried to hit Howson. Howson grabbed defendants shirt, they struggled, and defendant fell to the ground. A lot of gunshots rang out. Defendant was afraid, so he ran down the street and hid by a mobile home. After a couple of minutes, defendant saw Hung limping towards him, carrying a gun. Hung said that he could not run any further but he told defendant to keep going. Defendant walked home.

Defendant saw Hung the next day. Hung said that he had been at the hospital. He said that he got one of the guys good. After that, defendant never saw Hung again. He has seen Tony here and there. He told Officer Hathaway in April 2006 that he did not know anything about the shooting, which was not true, because he did not want to get involved; he did not want to snitch on Hung.

Officer Thuy Le testified that he and Officer Hathaway interviewed Minh at the hospital around 1:45 p.m. the day after the shooting incident. Minh said that Tung began to argue with some men inside the caf about a card game debt. After they went outside, the men fought with Tung. Minh said that he was shot when he was two feet from the front door of the caf. He said that he fell to the ground and that the shooter walked up to him, called him a motherfucker, and shot him three or four times at close range. He said that he could not remember what happened next. He described the shooter as being about 25 to 26 years old, five feet seven inches tall, 150 pounds, and wearing a black jacket.

When the officers interviewed Minh again the next day at the hospital, Minh said that Howson was fighting with somebody when somebody came up behind Minh and shot him in the back. He said that he fell to the ground and crawled to a parked car for safety. He said that he was lying next to the drivers door of a black Mitsubishi when the person who fought with Howson walked towards him and shot him four times before getting into the Mitsubishi and leaving the area.

David Flores, a licensed private investigator, testified that he visited and took measurements at the caf and its parking lot a few days before testifying. He determined that the distance from the front door of the caf to the far end of the fourth parking stall where Minh was found is 57 feet five inches. The first three parking stalls were seven feet 10 inches wide, but the fourth and fifth stalls were nine feet four inches wide.

Verdicts and Sentencing

On September 4, 2007, the jury found defendant guilty of attempted murder ( 664, subd. (a), 187; count 1), and found true allegations that defendant personally and intentionally discharged a handgun ( 12022.53, subd. (d)) and that he personally inflicted great bodily injury upon a person not an accomplice ( 12022.7, subd. (a)) during the commission of the offense. The jury found not true the allegation that the attempted murder was willful, deliberate, and premeditated ( 189). On September 5, 2007, the court granted the prosecutors motion to dismiss count 2. On December 21, 2007, the court denied defendants written motion for a new trial,[7] and sentenced defendant to the indeterminate term of 25 years to life consecutive to the determinate term of five years. The court struck the great bodily injury enhancement.

DISCUSSION

Defendants Prior Association with Hung

As part of his motions in limine, the prosecutor sought leave to introduce evidence of how the investigation in this case evolved and eventually led to the arrest of defendant. Officer Hathaway will testify that he was able to draw upon his own personal experience along with the resources at his disposal (such as a large photo database of suspected gang members) to generate a series of photo lineups to help identify the shooter in this case. At the hearing on the motion, the prosecutor made it clear that [n]one of the persons involved in this case, percipient witnesses, either witnesses or any persons have any verifiable street gang membership.

Defendants counsel argued that the pertinent question was, what is the relevance. There is none. It is only intended to somehow get jurors to think about Asian street gangs. If they are not members and its not an Asian street gang under [section] 186.22(b), it is absolutely not relevant. [] The officer can say, I did an investigation, Im an investigator, I put together a photo lineup, and here it is, I showed it to those folks.

The court ruled that there should not be reference to gangs unless defense counsel wants to enter into a stipulation the parties involved in this incident were not verified gang members. The court will allow testimony of how the photos were selected for the photo lineup. Ill find thats relevant, Ill find that its probative value outweighs the prejudicial effect.

During the prosecutors opening statement, he stated to the jury, Now, the police take a piece of evidence they have at the time, which is the only thing they know. Theres a Hung Nguyen with gunshot residue on him. And fortunately San Jose keeps a database of all known contacts. For instance, Hung Nguyen, he may have been stopped, he may have been -- At this point, the court sustained defense counsels objection. The prosecutor continued: Hung Nguyen. The police conduct an investigation that eventually leads to not only Tony Nguyen, but also to John Nguyen, as possible contacts of Hung Nguyen.

The following occurred during the prosecutors direct examination of Officer Hathaway.

[THE PROSECUTOR]: During the course of your investigation, were you able to tie anyone else to Hung Nguyen?

[Officer Hathaway]: Yes.

[THE PROSECUTOR]: Who were you able to tie as an associate of Hung Nguyen?

[DEFENSE COUNSEL]: Objection. Vague.

THE COURT: I will sustain the objection. You may pursue it. [] . . . []

[THE PROSECUTOR]: At some point a photo lineup was shown to Tung Nguyen. He picked out Hung Nguyen as a person having been at the Caf. When did this take place?

[OFFICER HATHAWAY]: Let me refer to my notes so I can give you the exact date. That was April 16, 2005.

[THE PROSECUTOR]: Using that as a lead, were you able what did you do with that information?

[OFFICER HATHAWAY]: Well, now weve I.D.d someone from the other side, one of the suspects that we know was involved there, present at the shooting.

[THE PROSECUTOR]: And did you take this information and try to determine if there were any other persons associated with Hung Nguyen?

[OFFICER HATHAWAY]: Yes.

[THE PROSECUTOR]: Were you able to associate any other persons with Hung Nguyen?

[OFFICER HATHAWAY]: Yes, we were able to identify John Nguyen.

[THE PROSECUTOR]: As an associate of Hung Nguyen?

[DEFENSE COUNSEL]: Objection, Your Honor.

THE COURT: Sustained.

[THE PROSECUTOR]: What did you know about the association between these two? What was the connection?

[OFFICER HATHAWAY]: Well, during my investigation I realized that they had been contacted together at a previous time.

[DEFENSE COUNSEL]: Objection, Your Honor. May we approach?

THE COURT: You may.

(The following discussion was held at sidebar.)

[DEFENSE COUNSEL]: I will ask for a mistrial. He is now telling the jury my guy had been picked up by the police. Im asking for a mistrial. The court previously ruled other evidence of crime was not to come in. I will ask for a mistrial.

[THE PROSECUTOR]: Your Honor, I purposely was vague when I asked if anyone else was associated with him. He objected to vague. I already told the court I was going to keep it vague. He objected and you sustained it. I dont know how else

[DEFENSE COUNSEL]: Did you run the picture of John, did you put it in

[THE PROSECUTOR]: No.

THE COURT: Were not going to go into what people should have done. Im going to deny the motion for mistrial, going to allow you to pursue it, but you need [to] admonish the witness hes not to disclose the basis of that association. So skirt around it.

[DEFENSE COUNSEL]: Heres the problem. Im now in the position of having to explain to the jury -- [] He said that they were together, made contact with him when they were together. The police did.

THE COURT: They are not stopped see if you can finesse it.

(The following proceedings were held in open court.)

[THE PROSECUTOR]: Based upon the information that you had between Hung Nguyen and John Nguyen, did you prepare a photo lineup of John Nguyen?

[OFFICER HATHAWAY]: Yes I did.

Defendant now contends that the evidence that he had been contacted before by police and was an associate of Hung was irrelevant and prejudicial. As such, the introduction of this evidence in this case deprived [defendant] of a fair trial. Reversal is required. Defendant argues that, [w]hile the reference here was subtle and no doubt could have been worse, the jury knew what Officer Hathaway was saying: [defendant] was gang affiliated and had become a suspect due to his association and prior police contact with Hung Nguyen.

The Attorney General contends that evidence as to how defendant came to the attention of the police and became a person of interest in this case was relevant to the prosecutions case, and that the trial court determined that the evidence was not so unduly prejudicial that the prejudice outweighed its probative value. The Attorney General further contends that evidence that defendant had been contacted by the police was not an allusion to gang affiliation, a prior felony conviction, an arrest, or even a detention. Lastly, the Attorney General contends that, even if Officer Hathaway improperly testified that defendant and Hung had been contacted together in the past, the trial court properly denied defendants motion for mistrial.

A motion for mistrial is directed to the sound discretion of the trial court.  (People v. Cox (2003) 30 Cal.4th 916, 953, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.  [Citations.] (People v. Cox, supra, 30 Cal.4th at p. 953; People v. Avila (2006) 38 Cal.4th 491, 573.)

In determining whether a defendants chances of receiving a fair trial were irreparably damaged by the jurors hearing testimony that was later stricken, we presume that the jurors followed the trial courts subsequent instruction not to consider the testimony for any purpose. (People v. Avila, supra, 38 Cal.4th at p. 574; see also People v. Cox, supra, 30 Cal.4th at p. 953.) A jury is presumed to have followed an admonition to disregard improper evidence particularly where there is an absence of bad faith. [Citations.] It is only in the exceptional case that the improper subject matter is of such a character that its effect . . . cannot be removed by the courts admonitions. [Citation.] [Citation.] (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404.)

[I]t is established that evidence of mere arrests is inadmissible because it is more prejudicial than probative. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1523.) There is a danger that it would be employed . . . to show . . . an untrustworthy and criminal character. (Ibid.; see also People v. Anderson (1978) 20 Cal.3d 647, 650-651.) Likewise, admission of evidence of a criminal defendants gang membership creates the risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged. [Citations.] (People v. Williams (1997) 16 Cal.4th 153, 193.) However, we discern no reasonable probability that, but for the testimony at issue here, the outcome in this case would have been more favorable to defendant. (People v. Watson (1956) 46 Cal.2d 818, 836.) Nor do we discern any due process violation. A state-law evidentiary error is not automatically a violation of federal constitutional due process, and the violation alleged here did not rise to that level. (See People v. Ashmus (1991) 54 Cal.3d 932, 984, fn. 14.)

Officer Hathaway did not testify that defendant had a prior criminal or arrest record, or that he was associated with a gang, and we disagree with defendants contention that Officers Hathaways testimony would have led the jury to logically or reasonably infer that defendant had a prior arrest record or that he and Hung were gang members. And, as the Attorney General argues, it is doubtful any reasonable juror would have assumed the officers testimony meant defendant had prior felony convictions or had been previously investigated for criminal activity. The jury heard only that Officer Hathaway had been able to associate defendant with Hung, that they had been contacted together at a previous time. The court sustained defense counsels objections to the officers testimony that defendant was an associate of Hung, and the court later admonished the jury that it was to disregard evidence for which the court had sustained an objection (CALCRIM No. 222). As the Attorney General argues, Officer Hathaways statement was a brief and isolated comment that was insignificant in the context of the entire trial. In addition, defendant admitted that Hung was defendants barber and the jury was told that the photo of defendant used in the subsequent photographic lineup was his DMV photo.

The case was fraught with conflicting evidence and inconsistent statements by the witnesses. Consequently, the testimony that defendants photo was included in a photo lineup one year after the shooting incident because of his association with Hung was an important link connecting him to the shooting incident. Minh, the shooting victim, identified defendant as the shooter from the photo lineup, at the preliminary examination, and at trial. Tung, who knew defendant prior to the shooting incident, testified at the preliminary examination and at trial that he also saw defendant shoot Minh. On this record, we cannot say that defendant was denied a fair trial by the admission of Officer Hathaways contested testimony or that the court abused its discretion in denying defendants motion for mistrial.

Instruction on Consciousness of Guilt

The trial court met with counsel in chambers and provided them with a list of the instructions it intended to give. Counsel brought to the courts attention several other instructions, some of which the court agreed to give and some of which the court declined to give. The court then provided counsel with the opportunity to state on the record any objections to the instructions the court agreed to give, any objections to any modifications the court made, and any questions regarding instructions the court declined to give.

Among the instructions the court later gave the jury were CALCRIM Nos. 220

[reasonable doubt],[8] 362 [consciousness of guilt: false statements],[9] 372 [defendants flight],[10] and 373 [other perpetrator].[11] Defendant submitted a proposed jury instruction based on CALCRIM No. 371 [consciousness of guilt: suppression or fabrication of evidence]. Alternative C of CALCRIM No. 371, which deals with fabrication or suppression by a third party, states: If someone other than the defendant tried to create false evidence, provide false testimony, or conceal or destroy evidence, that conduct may show the defendant was aware of (his/her) guilt, but only if the defendant was present and knew about that conduct, or, if not present, authorized the other persons actions. It is up to you to decide the meaning and importance of this evidence. However, evidence of such conduct cannot prove guilt by itself. Defendants proposed instruction stated: If someone other than the defendant tried to create false evidence, provide false testimony, or conceal or destroy evidence, that conduct may show a consciousness of guilt on the part of the person creating the false evidence or providing the false testimony.

The prosecutor opposed defendants proposed instruction as not appropriate. [T]hat particular instruction applies more to the consciousness of guilt of the person being tried in that particular hearing. The way its proposed by the defense goes to the consciousness of the guilt of another person not before the jury. Defense counsel contended that the instruction was appropriate if it can raise a reasonable doubt as to the guilt of my client. The court declined to give the instruction, stating [i]t does not appear to be appropriate in this case.

Defendant submitted another proposed jury instruction which stated: You can consider evidence that someone else was the perpetrator of the crime, because the evidence shows that other persons were involved in the commission of the crimes charged against the defendant. In evaluating whether someone else was the perpetrator, consider the following questions: [] What were the circumstances surrounding the incident? [] Who had a motive? [] Is there evidence of flight? [] Who had a personal interest in the outcome? [] Is there physical evidence? [] Was someone else identified as the perpetrator? [] The people have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find that the defendant is not guilty.

The prosecutor objected to the instruction, stating, this was a situation where there was more than one perpetrator. They were not mutually exclusive. You could have two or three other shooters in a particular area, and in fact that what these other perpetrators did can certainly be argued to the jury, but to put it in the form of a jury instruction I think is not appropriate. The court declined to give the proposed instruction, stating I dont believe its appropriate, and certain parts of it will be called to the attention of the jury in other instructions.

Defendant now contends that the courts failure to give balanced instructions in this critical area was fundamentally improper. The constitution requires instructional equality between the state and the defense; here, the state received consciousness of guilt instructions while the defense received none. In a case like this, where the objective record of jury deliberations shows the case was close, this error requires reversal.[12]

The Attorney General contends that the proposed instructions were properly refused as argumentative and cumulative to instructions the court already stated it would give.

A criminal defendant is entitled, on request, to an instruction pinpointing the theory of his defense. [Citations.] . . . [H]owever, instructions that attempt to relate particular facts to a legal issue are generally objectionable as argumentative [citation], and the effect of certain facts on identified theories is best left to argument by counsel, cross-examination of the witnesses, and expert testimony where appropriate. [Citation.] (People v. Wharton (1991) 53 Cal.3d 522, 570; see also People v. Wright (1988) 45 Cal.3d 1126, 1137, 1143.)

In People v. Wright, supra, 45 Cal.3d at page 1135, our Supreme Court reaffirmed its disapproval of the common practice [of] select[ing] certain material facts, or those which are deemed to be material, and endeavoring to force the court to indicate an opinion favorable to the defendant as to the effect of such facts, by incorporating them into instructions containing a correct principle of law . . . . Thus, the Wright court disapproved as argumentative an instruction requested by the defendant which would have instructed the jury to consider various pieces of evidence, such as the fact that all the robbers wore ski masks, in assessing the defendants guilt. (Id. at p. 1138.) A pinpoint instruction is also argumentative when it invite[s] the jury to draw inferences favorable to only one party from the evidence presented at trial. (People v. Carter (2003) 30 Cal.4th 1166, 1225; see also People v. Earp (1999) 20 Cal.4th 826, 886-887 [instruction was plainly argumentative as it emphasized specific evidence defendant claimed raised reasonable doubt].)

Further, [i]t is not erroneous to refuse even a legally correct instruction if it is duplicative. [Citation.] (People v. Berryman (1993) 6 Cal.4th 1048, 1079, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) A trial court is not required to give requested instructions which are duplicative of the legal concepts in other given instructions. (People v. Farmer (1989) 47 Cal.3d 888, 913-914, overruled on another point in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6; People v. Wright, supra, 45 Cal.3d at p. 1134.) Any error in refusing to give a requested pinpoint instruction is reviewed under the standard enunciated in People v. Watson, supra, 46 Cal.2d at page 837: is it reasonably probable that a result more favorable to defendant would have been reached in the absence of the error? (People v. Wharton, supra, 53 Cal.3d at p. 570.)

Defendants proposed instruction that was a modification of CALCRIM No. 371 was both duplicative and argumentative. As indicated above, the proposed instruction stated: If someone other than the defendant tried to create false evidence, provide false testimony, or conceal or destroy evidence, that conduct may show a consciousness of guilt on the part of the person creating the false evidence or providing false testimony. The proposed instruction was duplicative of the instruction that the court gave on the credibility and believability of witnesses (CALCRIM No. 226). That instruction informed the jury that among the factors it may consider were a witnesss bias, attitude, and personal interest in the outcome, past inconsistent statements, admission of being untruthful, and other conduct reflecting on his or her believability. The proposed instruction was also argumentative in that it attempted to invite the jury to draw inferences favorable to only one party [the defendant] from the evidence presented at trial. (People v. Carter, supra, 30 Cal.4th at p. 1225; People v. Earp, supra, 20 Cal.4th at pp. 886-887.) Here, as in People v. Wharton, supra, 53 Cal.3d at page 570, defendants theory of defense regarding a thirds persons consciousness of guilt was  best left to argument by counsel [or] the cross-examination of the witnesses.  Thus, the court did not err in declining to give this proposed instruction.

Defendants other proposed instruction was also argumentative and duplicative. As indicated above, the instruction stated: You can consider evidence that someone else was the perpetrator of the crime, because the evidence shows that other persons were involved in the commission of the crimes charged against the defendant. In evaluating whether someone else was the perpetrator, consider the following questions: [] What were the circumstances surrounding the incident? [] Who had a motive? [] Is there evidence of flight? [] Who had a personal interest in the outcome? [] Is there physical evidence? [] Was someone else identified as the perpetrator? [] The people have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find that the defendant is not guilty. The proposed instruction pinpointed certain issues that defendant deemed favorable to him. The instruction then invited the jury to draw inferences favorable to the defendant from specified evidence on disputed facts and, therefore, properly belonged in arguments of counsel to the jury. (People v. Wright, supra, 45 Cal.3d at p. 1135.) Although the prosecution did not dispute the fact that another person besides defendant shot Minh, the prosecution did dispute that the two shooters were both persons other than defendant. The instruction was also duplicative of the instruction the court gave on the burden of proof and reasonable doubt (CALCRIM No. 220). Thus, the court did not err in declining to give this proposed instruction.

Even if we were to find that the court erred in declining to give one or both of defendants proposed instructions, we would not find it reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. The jury was presented conflicting and inconsistent testimony by several witnesses. However, both Tung, who knew defendant prior to the shooting incident, and Minh identified defendant at trial as the man they saw shoot Minh when Minh was lying on the ground near the parked car, and no other witness testified to seeing the shooting. Defendant does not contend that the instructions the court gave on consciousness of guilt were an incorrect statement of the law. Thus, any alleged instructional error was harmless.

Exhibit 2B

Minh testified at the preliminary hearing that, while he was watching Howson and defendant struggling outside the caf, he was hit by a gunshot. He fell down and crawled away to hide between two cars. Defendant and another man approached him and shot him. Actually I was lying down right in front the side the front of the car when I saw them coming back of the car. So they come around, so which defendants were coming around from his back of the car and they try to get in his car, so they saw me lying right there. So when I saw them I tried to pull back. So at that time they keep shooting. Minh specifically testified that he tried to move back towards the front of the car and that the person with defendant shot him by reaching over the front of the car to do so.

At trial, outside the presence of the jury, the prosecutor[13] proffered exhibits Nos. 2A and 2B, which were rough diagrams of the caf and adjacent parking lot showing where the shell casings were found and seized by police. Exhibit No. 2A showed an empty car stall where Minh was found following the shooting, with cars parked head-in inside the stalls on either side of the empty stall. Exhibit No. 2B showed a car backed into that stall. I anticipate based on a similar transcript that Minh Trinh, who will testify, will testify that there was a car there, and that that was the car that he went to hide behind . . . .

Defense counsel objected to admission of Exhibit No. 2B. [C]ounsel told me there was information he got from Mr. Minh indicating that was the position of the car. There is no such information that has been provided to me, nothing in the police report wherein he indicates the car was facing away from Senter Road, nothing in the preliminary hearing transcript that would indicate he has ever said anything about the position of the car being away from Senter Road. So what is the basis of preparing this document ahead of time? Its not in any report, not in the transcript of the preliminary hearing, so one suspects that its either made up or there has been some discussion with Minh indicating that thats what hes going to say now. And if so, Im entitled to a report.

The court asked the prosecutor, on what information was [the car] placed facing out rather than in? The prosecutor responded that it was based on his reading of the police report and the preliminary examination transcript, and not on conversations with Officer Hathaway. The court ordered that the diagram was not to be shown to the jury until such time as there is testimony that supports the vehicle being in that parking spot as well as the direction of the vehicle. The prosecutor responded, Very well. Defense counsel responded, Thank you, Your Honor.

At trial, prior to the introduction of exhibit No. 2B, Minh testified that the parked car where he crawled to hide had been backed into the stall. He further testified that defendant approached the drivers side of the car from the back of it, that another man went to the passenger side of the car, and that the second man reached over the hood of the car and shot Minh in the stomach. Defendant did not object to Minhs testimony regarding the direction of the car or to the introduction of exhibit No. 2B.

Defendant now contends that his rights to due process and to confront witnesses against him were violated when the prosecutor failed to disclose prior to trial the direction the car used by the shooter had been parked. [B]ecause of the location of the bullet casings at the crime scene, and the fact that the guns used in the shooting eject to the right, the direction the shooters were facing became a critical issue at trial. [B]ecause the direction of the shooters was central to the credibility of Minhs trial testimony, the states failure to disclose this information until the middle of trial violated the constitution. Given the closeness of this case, as reflected in the objective record of jury deliberations, the state will be unable to prove this error harmless and reversal is required.

The Attorney General first contends that defendant waived any complaint about exhibit No. 2B when he agreed to the courts order precluding its introduction only until there was evidence to support it, and then did not object when the exhibit was introduced into evidence. The Attorney General next contends that defendant does not have a constitutional right to compel the prosecution to disclose prior to trial all inculpatory evidence it intends to present at trial. Lastly, the Attorney General contends that defendant was not prejudiced by the evidence, as he was able to use it to show that Minh and Officer Hathaway disagreed on whether Minh had told the officer the direction the shooters car had been parked.

The prosecution has a duty to disclose material exculpatory evidence to an accused (Brady v. Maryland (1963) 373 U.S. 83, 87; see also United States v. Bagley (1985) 473 U.S. 667, 678), including favorable evidence known to . . . others acting on the governments behalf . . . . (In re Brown (1998) 17 Cal.4th 873, 878.) Brady requires disclosure only of evidence that is both favorable to the accused and material either to guilt or to punishment. [Citation.] (People v. Burgener (2003) 29 Cal.4th 833, 875.) If the prosecution has evidence that is not favorable to the defendant, the prosecution has no federal constitutional duty to disclose it. (Ibid.) Likewise, defendant has not cited any authority holding that the prosecution has a state constitutional duty to disclose evidence that is not favorable to the defendant.

The record before us does not show a failure to disclose any evidence, exculpatory or inculpatory. Rather, it simply shows, as defendant concedes, that defense counsel was affirmatively (though undoubtedly unintentionally) misled by the evidence the prosecution did disclose. Based on pre-trial discovery and Minhs preliminary hearing testimony, defense counsel believed the get-away car was facing west, like all the other cars in the area. However, a reasonable interpretation of Minhs preliminary hearing testimony, and undoubtedly the interpretation the prosecution gave the testimony when he had exhibit No. 2B prepared, was that Minh crawled through the center of the parking lot to hide next the front of a car that had backed into its parking stall. Then, defendant and his cohort approached Minh after coming around from the back of the car, that is, after approaching the car from outside the parking lot. The prosecutor was not required to disclose to defense counsel prior to trial his interpretation of Minhs preliminary examination testimony. Defense counsel did not object to Minhs trial testimony or request a continuance. No due process violation has been shown.

DISPOSITION

The abstract of judgment is ordered modified by striking the words 1st degree from the description of defendants crime in count 1, and by adding 5 in the consecutive column for the sentence on count 1. As so modified, the judgment is affirmed.

___________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

__________________________

Mcadams, J.

_________________________

duffy, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] Further unspecified statutory references are to the Penal Code.

[2] Because of this jury finding, on our own motion we will order the abstract of judgment modified by striking 1st degree from the description of defendants conviction on count 1. We will order further modification of the abstract of judgment by the insertion of five years in the consecutive column for the sentence on count 1.

[3] Because many of the witnesses have the same last name, for ease of reference we will refer to them after their introductions by their first names. Howson testified that he was convicted in 1994 of possession of stolen property.

[4] Minh testified that he has a 1987 conviction for receiving stolen property and a 1991 conviction for burglary.

[5] Kha testified that he was convicted of grand theft in 1986.

[6] Defendant and Howson were arguing in English, which Tung does not speak.

[7] The written motion is not in the record on appeal.

[8] The fact that a criminal charge has been filed against the defendant isnt evidence that the charge is true. You must not be biased against the defendant because he has been arrested or charged with a crime or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and special allegation beyond a reasonable doubt. [] Whenever I tell you the People must prove something, I mean they must proved it beyond a reasonable doubt. [] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. [] The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt. [] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. [] Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to acquittal and you must find him not guilty.

[9] If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [] If you conclude that the defendant made the statement, its up to you to decide the knowledge and the importance. However, evidence that the defendant made such statements does not prove guilt by itself.

[10] If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot by itself prove his guilt.

[11] The evidence shows that some other persons may have been involved in the commission of a crime charged against the defendant. There may be many reasons why someone who appears to have been involved might not be a co-defendant in this particular trial. You must not speculate whether the other persons have been or will be prosecuted. Your duty is to decide whether the defendant on trial here committed the crime charged.

[12] Defendant contends the objective record of jury deliberations showing that this was a close case was that the jury deliberated for over 13 hours over the course of three days (having heard testimony for eight days), that the jury twice asked for a read back of testimony (both on the same day, and before any testimony was actually read back), and that the jury acquitted him of attempted premeditated murder.

[13] The prosecutor at trial was not the prosecutor at the preliminary examination.