P. v. Quan CA2/7
Filed 4/18/13 P. v. Quan CA2/7 (unmodified version)
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
LAM VI QUAN,
Defendant and Appellant.
B238797
(Los Angeles
County
Super. Ct.
No. GA080643)
APPEAL from
a judgment of the Superior Court
of
County, Dorothy B. Reyes, Judge. Affirmed.
Mark S.
Givens, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Seth P.
McCutcheon, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Defendant Lam
Vi Quan appeals from a judgment of
conviction entered after a jury found him guilty of
§ 245, subd. (c)), personally causing great bodily
The trial court sentenced him to eight years in
On appeal,
defendant challenges the trial court’s response to a note from one of the
jurors indicating that the juror saw defendant make a throat-slitting motion
toward one of the prosecution witnesses. Defendant also claims error in the trial
court’s refusal to instruct on self-defense/defense of others. We affirm.
FACTS
A. Prosecution
At about 10:00 p.m. on July 17, 2010, San Gabriel Police Officers Nhat Huynh and
Dave Casillas responded to a noise complaint at an apartment complex at 409
East Marshall Street in San
Gabriel. They
and their fellow officers had responded to similar complaints at that location
in the past. They usually spoke to
Johnny Vi Quan, the owner of the property, who was cooperative and kept
everyone calm.
They heard
a lot of noise coming from the rear of the property, including loud talking and
yelling. When they got to the back of
the property, they saw 10 to 15 men around a large table in the driveway. Many of the men were holding beer bottles,
and there were numerous beer bottles on the table and scattered around the
property.
As the
officers approached Johnny Quan, he got out of his chair and asked them what
they were doing at his house. Officer
Casillas said that Johnny Quan knew why they were there and asked for his
identification. Johnny Quan responded
that the officer knew who he was; it was his house. Officer Casillas said he needed Johnny Quan’s
identification in order to issue a warning citation for noise. Johnny Quan was upset and appeared to have
been drinking. Officer Huynh feared
there might be trouble and radioed for backup.
Johnny’s
father, Phuong Hong Quan, got up from the table and approached Officer
Casillas, yelling at him. Officer
Casillas told him to stop, but Phuong Quan kept coming toward him.
Bobby Minh
Hoang also started to approach Officer Casillas. Unlike the majority of the men at the
gathering, Bobby Hoang was a large man, six feet two inches tall and about 205
pounds, about the size of Officers Casillas and Huynh. Officer Huynh attempted to stop him, but he
was moving too quickly. Bobby Hoang got
to within a foot of Officer Casillas.
Officer Casillas told him to back up.
Bobby Hoang put his hands on Officer Casillas’s chest and pushed him
back. Officer Casillas pushed back, and
Bobby Hoang fell backwards over a chair and onto the ground.
Phuong Quan
attempted to get to Officer Casillas, but the officer straight-armed him to
keep him at bay. Johnny Quan yelled at
Officer Casillas not to touch his father and then ran at the officer, grabbing
him around the waist. Officer Casillas
grabbed Johnny Quan in a headlock and the two of them ended up on the ground,
wrestling and fighting.
Officer
Huynh made a second call for backup and then attempted to pull Johnny Quan off
of Officer Casillas. Phuong Quan jumped
on top of Officer Casillas and held onto the lower half of his body, while
Johnny Quan held his upper body from behind.
As Officer Huynh attempted to pull them off, Bobby Hoang tackled him
from behind. Bobby Hoang held Officer Huynh
on the ground by wrapping his arms around the officer from behind. Vinh Hoang Vo came over and grabbed Officer
Huynh’s arm to prevent him from getting up.
Officer Huynh managed to reach his radio and called out, “Expedite. We need units now.â€
Defendant
walked to within two or three feet behind Officer Casillas, picked up a beer
bottle, and threw it at the officer’s head.
Officer Casillas felt a sharp impact from the bottle and blood dripping
down his forehead. Defendant picked up
five more bottles and threw them at Officer Casillas’s head.
Li D.
Liang, My Quoc Hua and Kevin Minh Ta then ran over and began hitting and
kicking Officer Casillas. They also
picked up beer bottles from the ground and threw them at Officer Casillas.
San Gabriel
Police Officer James Drabos arrived at the scene. Li Liang, My Quoc Hua and Kevin Ta ran into
the apartment building. Bobby Hoang let
go of Officer Huynh and also ran into the building. Officer Huynh assisted Officer Drabos in
pulling Phuong Quan off of Officer Casillas and handcuffing him. As the two officers were attempting to pull
Johnny Quan off of Officer Casillas, Phuong Quan came toward them, as if he was
going to attack. Officer Drabos pushed
him to the ground, but he got back up.
Vinh Vo and another man came over and held Phuong Quan back.
Officers
Drabos and Huynh were unable to pull Johnny Quan off of Officer Casillas. Officer Drabos finally used his Taser on
Johnny Quan. After the Taser was used a
second time, Johnny Quan released his hold on Officer Casillas, and Officers
Drabos and Huynh were able to handcuff him.
Thirty to
40 additional officers from different departments finally arrived at the
scene. They went into the apartment
building and located Li Liang, My Quoc Hua and Kevin Ta, who were identified by
Officer Huynh, and arrested them. Other
people were detained at the scene.
Defendant turned himself in to the San Gabriel Police Department later
that night.
Officer
Casillas was taken to the hospital with a head wound and concussion, partially
torn rotator cuff, and numerous abrasions.
At the time of trial, he continued to suffer neurological symptoms,
required physical therapy and had not returned to work.
Officer
Huynh went to the hospital and received treatment for pain in his arm and
shoulder. Officer Drabos was taken to
the hospital for an injury to his foot occurring when he stepped on broken
glass which penetrated the sole of his shoe.
B. Defense
Defendant
was charged in this case along with Johnny Quan, Phuong Quan, Bobby Hoang, My
Quoc Hua, Li Liang, Kevin Ta, and Vinh Vo.
Kevin Ta and My Quoc Hua testified in their own defense. Li Liang had a witness testify in his
defense.
Kevin Ta
Kevin Ta
testified that he and his coworker, My Quoc Hua, arrived at the property at
about 8:30 p.m. Kevin Ta is a handyman,
and Vinh Vo had asked him to come over to repair a toilet. After Kevin Ta and My Quoc Hua determined
that the toilet needed to be replaced, Vinh Vo invited them to stay and have a
beer. To be polite, Kevin Ta and My Quoc
Hua sat down at a table outside with a group of people.
Officers
Casillas and Huynh arrived and asked everyone for their identification. Johnny Quan stood up, walked toward them and
angrily asked why they were there.
Officer Casillas responded that he knew why they were there. Johnny Quan refused to produce his
identification and leaned forward toward Officer Casillas. Officer Casillas put his hand on Johnny Quan’s
face and pushed him away. Johnny Quan
fell backwards into Bobby Hoang, and the two fell down.
Phuong Quan
stood up and rushed toward Officer Casillas.
The officer pushed him down.
Johnny Quan asked why he did that and then tackled the officer, and they
both fell to the ground. As they were
rolling around on the ground, Vinh Vo came over and began throwing punches at
Officer Casillas.
Officer
Huynh came over and pulled Johnny Quan off of Officer Casillas. Phuong Quan got up and tried to get to
Officer Casillas, but Kevin Ta held him back.
Kevin Ta kept saying “stop†in Vietnamese. Eventually, however, Phuong Quan managed to
get to Officer Casillas and got on top of him, holding onto him.
Kevin Ta
saw defendant approach Officer Casillas while the officer was on the ground and
strike him with a beer bottle. Then
defendant went back to the table, and Kevin Ta did not see him again. He saw several beer bottles being thrown
towards Officer Casillas, but he did not see who threw them. He saw the bottles land on the pavement, and
he did not think any of them hit the officer.
Kevin Ta
denied approaching Officer Casillas or throwing any bottles. He never saw My Quoc Hua or Li Liang approach
Officer Casillas or throw any bottles.
Kevin Ta
also never saw Bobby Hoang approach Officer Casillas, never saw Officer
Casillas push Bobby Hoang, and never saw Bobby Hoang rush or tackle Officer
Huynh.
My Quoc Hua
According
to My Quoc Ha, Johnny Quan was talking to Officer Hyunh, not Officer Casillas,
but My Quoc Hua did not know what was being said because he does not speak
English very well. Officer Huynh was the
one who pushed Johnny Quan in the face.
Then Phuong Quan ran at him, and Officer Huynh pushed him too.
My Quoc Hua
saw defendant run to the table, pick up a bottle and throw it. When he saw defendant throwing bottles, he
was scared and went inside the apartment building with Li Liang. He never saw defendant walk up to Officer
Casillas and hit him with a bottle.
Neither My
Quoc Hua nor Li Liang threw a bottle at the officers. He never approached, hit or kicked the officers.
My Quoc
Hua’s character witnesses testified that they never saw him get drunk or
violent. They had never known him to
lie.
Dr.
Mitchell Eisen testified as an expert witness on behalf of My Quoc Hua. He testified regarding eyewitness memory and
suggestibility.
Li Liang
Binh Nguyen
testified on behalf of Li Liang, whom he knew through his uncles, Johnny Quan
and defendant. Binh Nguyen is a student
at the University of California Santa Barbara.
He arrived at the apartment complex with Bobby Hoang at about
9:00 p.m. When he arrived, he saw
Li Liang in front of one of the apartments, smoking a cigarette. That was the only time he saw Li Liang, who
did not join the group at the table outside.
Binh Nguyen
went over to the table, sat down and drank a beer. Within the hour, the two police officers
arrived. Officer Casillas asked Johnny
Quan for identification several times, but Johnny Quan was not cooperative. Officer Casillas seemed angry. As Officer Casillas moved toward Johnny Quan,
Bobby Hoang stood up to try to mediate, gesturing for people to calm down. Officer Casillas pushed Bobby Hoang down.
Johnny Quan
moved toward Officer Casillas, and they started grabbing and choking each
other. Binh Nguyen got up from the table
and backed away, standing near Officer Huynh.
Officer Huynh was talking on his radio, but he did not intervene in the
fight.
Phuong Quan
then got involved in the fight.
Eventually, Officer Casillas and Johnny Quan ended up on the
ground. When Officer Casillas got Johnny
Quan in a chokehold, Phuong Quan and Vinh Vo came over to help Johnny
Quan. No one else approached Officer
Casillas.
Binh Nguyen
saw defendant throw some bottles at Officer Casillas and heard defendant
cursing. Then defendant left. Binh Nguyen did not see anyone else throw
bottles.
Binh Nguyen
did not see Li Liang throw any bottles or fight with Officer Casillas. He did not see Kevin Ta or My Quoc Hua, whom
he met for the first time that night, throw bottles or get close to the
officers.
Binh Nguyen
acknowledged talking about the incident with family members who were
involved. It was difficult for him to
recall what he witnessed and what he heard others say about it. The most accurate statement about what
occurred was the one he gave to a detective right after the incident.
A. Incident After Binh Nguyen’s Testimony
After Binh
Nguyen’s testimony was completed, the court received a note from Juror No. 3
stating: “Lam Quan glared at Bin [
several times while Bin [sic] was
looking at him. He (Lam Quan) took his
left hand to his throat and with his finger moved it across his throat several
times while staring at Bin [sic]
while the attorneys and the judge went into the back room.â€
The court
informed counsel: “So at this point, I
am going to bring that juror back in and just simply ask the juror what he saw
and if he can demonstrate the gesture, and then I’m going to excuse the juror. I do not plan to inquire of the juror. I don’t want any questions asked of that
juror, and I certainly am not going to tell the juror to disregard anything,
because that’s one of the points of the trial, is that they get to observe the
individuals and how they respond and what they do.â€
The court
brought out Juror No. 3, who demonstrated what defendant was doing. The court then excused the juror until the
following day.
Defendant’s
counsel then requested that the court inquire of the other jurors whether they
saw anything. The court said it was not
going “to open that door up and start asking what they may or may not have
seen. That is certainly something which
the jurors can discuss in the jury room.
That is the topic for deliberations, but it’s nothing that I’m going to
inquire of and potentially contaminate the other jurors.†The court found Juror No. 3 credible, and
there was no “need to drag any other jurors into this at this point in time.â€
Defendant’s
counsel asked if the court was keeping Juror No. 3 on the panel. The court said it was, explaining: “There’s no misconduct here. He simply observed some behavior on the part
of your client, which he’s entitled to consider, because in-court behavior is
part of what a trial is all about.â€
Defendant’s counsel objected for the record, because he was unsure of the
relevant law. The court told him that if
he wanted to research the matter, it would reconsider the matter the following
day.
The
following day, defendant’s counsel stated that he had done some research, and
“[i]t looks like it’s totally in the court’s discretion . . .
because, basically, it’s a [matter of] public policy. . . . If the court allowed that to go on, then no
trial would reach a verdict because then defendants would do these things to
get a mistrial.†Counsel felt this
placed a burden on him to make a record, so he requested that Juror No. 3 be
discharged, that the entire jury panel be questioned, that Juror No. 3 be
directed not to discuss his observation with the other jurors during
deliberations, and that the court grant a mistrial.
The court
took the position that if a defendant chooses to engage in this type of
behavior in front of the jury, he has to live with his own choice. Relying on People v. Foster (1988) 201 Cal.App.3d 20 and People v. Garcia (1984) 160 Cal.App.3d 82, the court stated that
“certainly, a throat-slitting motion is, I believe, highly relevant on the
issue of consciousness of guilt, making what essentially appears to be a death
threat to the witness. . . .
[¶] Therefore, I believe it would
be inappropriate to instruct . . . the juror to disregard it, and I
also think it would be inappropriate to instruct him not to discuss it with the
other jurors. He saw it. He can certainly raise it with the other
jurors. They may have seen it. They may not have seen it. But, again, if a defendant is going to make
death threats to a witness in open court while the court is in session, then in
my view, he does that at his own peril, and no instruction should be given.â€
The court
added that counsel were not to mention the incident in their arguments,
“because it technically is not in evidence.â€
The court concluded, “So I’m denying your motions at this time. I’m denying your motion for mistrial based on
the authority here. And I agree that as
a public policy matter if a defendant is going to engage in that type of
conduct and ask for a mistrial, a defendant can get a mistrial anytime he
misbehaves, so obviously we can’t permit that.â€
Defendant
contends that the trial court denied him his rights to due process and a fair
trial by an impartial jury when it refused to interview the jurors to determine
whether they were still capable of rendering a verdict based solely on the
evidence, when it refused to admonish the jurors to disregard defendant’s
throat-slitting gesture, and when it refused to declare a mistrial. We disagree.
Our Supreme
Court explained in People v. Lewis and
Oliver (2006) 39 Cal.4th 970 that “‘[a]s a matter of policy, a defendant is
not permitted to profit from his own misconduct.’ [Citation.]
. . . Defendants may
not complain on appeal about the possible effect on jurors of their own
calculated misdeeds. [Citations.]†(Id.
at p. 1030.)
In
stand, the defendant made a throat-slitting gesture. The witness brought it to the court’s
attention, and she was allowed to retake the stand to explain what had
occurred. (Id. at p. 25.) On appeal,
the court rejected the defendant’s claim of error on the ground “[a] threat
against a witness is relevant as indicating consciousness of guilt.†(Ibid.)
In
making smirking or jeering expressions when a witness was testifying. (Id.
at p. 87.) The trial court took the
position that the defendant’s courtroom demeanor could be considered by the
jury in their deliberations. (
On appeal,
the court acknowledged the reality “that jurors often will be influenced, both
positively and negatively, by their perceptions and impressions of a
nontestifying defendant’s courtroom demeanor.â€
(People v. Garcia,
defendant’s nontestimonial conduct in the courtroom does not fall within the definition
of ‘relevant evidence’†with respect to the issues at trial, and it is not
relevant to credibility since the defendant is not testifying. (Ibid.) “Authorizing the consideration of such
demeanor in the determination of guilt or innocence also runs the grave danger
of inviting the jury to use the character of the accused to prove
guilt—something that is wholly improper unless the defendant first presents
evidence of his good character.
[Citations.]†(
That being the case, the court “conclude[d] that the nontestimonial
behavior of a defendant while in the courtroom cannot be judicially endorsed as
evidence of his guilt.†(
inferences from the defendant’s behavior without help from the court. (Ibid.)
We agree
with the trial court’s response to the note from Juror No. 3 in the instant
case. Defendant voluntarily made a
gesture in view of the jury which could be interpreted as a threat against a
witness. The jury was entitled to consider
his conduct as evidence of consciousness of guilt. (People
v. Foster, supra, 201 Cal.App.3d
at p. 25; People v. Garcia,
Juror No. 3 to ignore defendant’s conduct, to question the other jurors as to
whether they observed defendant’s behavior, or to grant a mistrial. He cannot “complain on appeal about the
possible effect on jurors of [his] own calculated misdeeds†or otherwise “‘profit
from his own misconduct.’†(
B. Refusal
to Instruct on Defense of Others
The trial
court did not include any instructions on self-defense or defense of others in
the packet of instructions it intended to give.
It gave the attorneys, including defendant’s attorney, who observed the
lack of such instructions, the opportunity to argue the matter.
Defendant’s
counsel, relying on People v. Elize
(1999) 71 Cal.App.4th 605, argued that substantial evidence supported an
instruction on defense of others: When
Officer Casillas unjustifiably placed Johnny Quan in a chokehold after Johnny
Quan tried to protect his father, defendant tried to defend Johnny Quan by
freeing him from the chokehold.
In denying
the request for instructions on self-defense or defense of others, the court
pointed out that the officers were legitimately at the property in response to
a noise complaint. It was Johnny Quan
who initiated the fighting by rushing and grabbing Officer Casillas, who only
then put Johnny Quan in a chokehold.
The
evidence showed that defendant threw bottles at Officer Casillas’s head while
he was down on the ground wrestling with Johnny Quan and Phuong Quan. The court was of the opinion that “[t]here’s
no justification for using a bottle†in those circumstances. “And the officer is down on the ground
engaged with two other people. There has
to be substantial evidence of self-defense or defense of others, and I simply
don’t see it.â€
Defendant’s
counsel argued that Johnny Quan was coming to the rescue of his father and
Bobby Hoang, who had been pushed. “And
then the officer put him in a chokehold while he was still standing up. Then that putting the chokehold around his
neck would be—from the defense perspective, is a very dangerous act committed
by someone who was the initial aggressor.â€
The court
disagreed, explaining, “By all accounts, there was a push. All right.
Justified or not, there was a push, and then the push was over. It was a single push. All right.
Johnny Quan then becomes, in my view, the aggressor; runs and attacks
and tackles the officer. The officer is
on the ground. . . . He’s
defenseless on the ground. He’s
wrestling around with numerous people, and it’s—there are no weapons
involved. It’s a wrestling match. Your client then comes up, and he either
throws a bottle at his head or cracks him over the head with a bottle while
he’s defenseless on the ground wrestling with a couple of people. I don’t see any substantial evidence of
self-defense or defense of others.â€
Defendant’s
counsel disagreed, stating, “It’s the defense position that the chokehold—the
jury could infer that the chokehold continued as they fell onto the
ground. And given the timing that was
described, that my client was responding to that as the deadly or dangerous
situation—that is, [Johnny Quan] could not breathe because that’s what a
chokehold is.â€
The court
responded, “Unfortunately, there’s no evidence that there was any chokehold
that continued on the ground. There’s no
evidence. In fact, all the evidence was
they were scrambling around or rolling around on the ground.†The court concluded there was no substantial
evidence to support an instruction on defense of others.
The trial
court is required to instruct the jury on a defense relied upon by the
defendant only if the defense is supported by substantial evidence. (People
v. Watson (2000) 22 Cal.4th 220, 222.)
Substantial evidence is that which is reasonable, credible and of solid
value. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Although all reasonable inferences must be
drawn in support of the defense, the court “may not ‘go beyond inference and
into the realm of speculation in order to find support for [the defense]. A finding . . . which is merely the
product of conjecture and surmise may not be affirmed.’ [Citations.]â€
(People v. Memro (1985) 38
Cal.3d 658, 695, overruled on another ground in People v. Gaines (2009) 46 Cal.4th 172, 181.)
Instruction
on defense of others is required only where there is substantial evidence of
defendant’s reasonable belief in the need to defend against imminent danger of
death or bodily injury. (
1073, 1082-1083.) Imminent danger means
danger that existed or appeared to exist at the very moment that the defendant
inflicted the assault. (
Brown, J.).)
In
below, an instruction on self-defense was required where the “jury could find
from the evidence presented that defendant was sought out and attacked by two
angry women much larger than he, that he was being beaten with pipes, that this
beating accounted for his broken wrist, that one of the women tried to take his
handgun, and that he struggled with that woman while the other continued to
beat him.†(Id. at pp. 615-616.) The
facts of the instant case are not comparable.
In this case, the larger officer was attacked by two smaller men, and he
and his partner tried to stop the attack without using their weapons. The attackers did not require the use of
force to defend them.
Defendant
argues that when Officer Casillas got Johnny in a chokehold, “[t]his is the
point at which a reasonable juror could find that [defendant] was justified in
coming to [Johnny Quan’s] aid, since Johnny now appeared to be in a dangerous,
perhaps life-threatening, situation.â€
However, defendant fails to point to any evidence that Officer Casillas
still had Johnny Quan in a chokehold at the time defendant threw the bottles or
hit the officer with a bottle.
The
evidence showed that after Johnny Quan rushed Officer Casillas and grabbed him
around the waist, Officer Casillas grabbed Johnny Quan in a headlock and the
two of them ended up on the ground, wrestling and fighting. Phuong Quan jumped on top of Officer Casillas
and held onto the lower half of his body, while Johnny Quan held his upper body
from behind. As Officer Huynh attempted
to pull them off Officer Casillas, Bobby Hoang tackled Officer Huynh and held
him on the ground, and Vinh Vo came over and grabbed Officer Huynh’s arm to
prevent him from getting up. It was at
that point that defendant entered the fray.
Johnny Quan was no longer in a chokehold and no longer in need of
defense from a “dangerous, perhaps life-threatening, situation.â€
There thus
was no substantial evidence to support an instruction on defense of others with
respect to defendant. The trial court
did not err in refusing to give such an instruction. (People
v. Humphrey, supra, 13 Cal.4th at
pp. 1094-1095 (conc. opn. of Brown, J.).)
DISPOSITION
The
judgment is affirmed.
JACKSON,
J.
We concur:
PERLUSS,
P. J.
WOODS,
J.
name="_ftn1" title="">
recording of that interview was played for the jury.
name="_ftn2" title="">
light of our conclusion that there was no error, we reject defendant’s
contention that cumulative error deprived him of a fair trial and requires
reversal of his conviction. (
226, 244.)
