P. v. Tran
Filed 6/28/12 P. v. Tran CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
HOA DIHN
TRAN,
Defendant and Appellant.
A131099
(Alameda County
Super. Ct. No. C160885)
Hoa Dihn Tran
(appellant) was convicted, following a jury trial, of second degree murder and
possession of a firearm by a felon. On
appeal, he contends (1) the trial court erred in failing to instruct the
jury sua sponte on imperfect
self-defense; (2) the trial court’s intoxication instruction was
erroneous; (3) the trial court erred in instructing on efforts to suppress
evidence; and (4) the errors were cumulatively prejudicial. We shall affirm the judgment.
BACKGROUND
Appellant
was charged by information with the murder
of Tho Tu (Pen. Code, § 187(a)—count one),
and with possession of a firearm by a
felon (former § 12021, subd. (a)(1)—count two). The information alleged, as to count one,
that appellant personally and intentionally discharged a firearm causing great
bodily injury and death
(§ 12022.53, subd. (d)), personally and intentionally discharged a
firearm (§ 12022.53, subd (c)), and personally used a firearm (§§ 12022.5,
subd. (a)(1) & 12022.53, subd. (b)). The information further alleged, as to both
counts, that appellant had suffered one prior serious felony conviction
(§ 667, subd. (a)(1)) and one prior strike conviction (§§ 667,
subd. (e)(1) & 1170.12, subd. (c)(1)).
Following a
jury trial, the jury found appellant guilty of
firearm by a felon. The jury also found
the enhancement allegations to be true.
On
January 31, 2011, the trial court sentenced appellant to 66 years to life
in state prison.
Also on
January 31, 2011, appellant filed a notice
of appeal.
BACKGROUND
This case
involves the August 27, 2003 shooting death of Tho Tu at the Pho
H-Uyen restaurant-bar in downtown Oakland.
Minh Tu,
sister of homicide victim Tho Tu, testified that her brother was born in
1977 in Vietnam. He came to the United
States at age 13. He graduated from
college in 2003, shortly before his death, with a degree in computer
engineering. He had never been involved
in a crime.
Quyen “Rebecca” Bui,
a friend of appellant, testified that she was at a restaurant in August 2003,
but did not remember anything about the night because it was so long ago.
Department some time after that night, but did not remember what she told
police then.
Bui’s
recorded interview with police was played for the jury at trial. In the interview, which took place on
October 14, 2003, Bui told police that, on the night Tu died, she was at a
bar in Oakland with friends, including appellant;
his brother Binh; and two other men, Bao and Dai. Appellant was a friend of her ex-boyfriend;
she had known him for about three years.
A fight started at the bar after someone started cursing at Dai, who was
from North Vietnam, saying that North Vietnamese are “pussy-face.” Dai hit the man with a big glass and the
whole group started fighting. Dai told
appellant to come, and then Tho Tu—who Bui identified in a photograph
police showed her—hit Dai and appellant with a chair.
Bui started
running around the restaurant and, at some point, saw appellant with a small
gun in his hand. She did not see anyone
else in the bar with a gun. She then saw
people trying to push appellant outside.
Appellant fired the gun and she ran behind the bar and sat down. She did not see anything after that, but
heard another gunshot. She did not see
the victim, Tu, get shot. After she came
out from behind the bar, Bui saw Tu lying face down on the floor. She immediately left the bar and drove
home.
Dai Nguyen,
who was at the bar on the night of the shooting, testified that he did not know
appellant well and did not recall much about that night because he had been
drinking and taking drugs. He came to
the bar with his friend Bao. He did not
remember seeing appellant at the bar that night. He knew the victim, Tho Tu, slightly; he
was “a nice guy.” He did not recall if
he saw Tu at the bar that night.
Police
interviewed Dai on the evening after the shooting. A tape recording of that interview was played
for the jury at trial. During the
interview, Dai told police that he had known the victim, Tu, for years. He said he arrived at the bar at 12:30 or
1:00 a.m. with his friend Bao. He
also was with appellant and appellant’s brother Binh. He drank about two beers over the course of
the night. At some point, a man named
Yung said something disrespectful to Dai regarding where Dai was from in
Vietnam. Dai got mad and slapped Yung in
the face. A fight started and people
used beer bottles and chairs. Tu fought
with Bao. Tu was very physically
aggressive because he was trying to protect his friend, Yung. Dai and Bao tried to break up the fight.
Dai was
outside the door of the bar with appellant when he heard two or three
gunshots. The shots came from close
by. Dai saw someone who was two or three
feet away from him shoot and run. It
looked like appellant, but Dai said he could not be 100 percent sure
because he ducked down after the shots.
Eventually Dai acknowledged that he was 50 percent sure that
appellant was the shooter. Tu was close
to the bar when he was shot. Dai did not
see a weapon in his hands. He did not
see anyone else in the bar with a gun during the fight.
Minh Vy,
a cook at the restaurant, testified that on the early morning of
August 27, 2003, he saw a fight between two groups who were from North and
South Vietnam. They were breaking chairs
and bottles. Three or four people were
bleeding badly and there was blood on the floor. After about 10 minutes, one man ran outside. He had blood all over him. Vy followed him outside. The man got a black gun from a black Acura
parked in front of the restaurant. He
went back inside the restaurant and Minh heard about three gunshots. Minh did not see him shoot, but saw him run
back outside right after firing the shots and then saw him get into the
Acura. A woman who was already in the
car drove away. The man was named Tony,
and he had a tattoo of a dragon on his left shoulder. Vy identified the gunman in a photo lineup
less than a month after the shooting. He
was “100 percent” sure that the person he identified was the shooter. He was a little uncertain whether appellant
was the same person because, although he looked familiar, his appearance had
changed. Other than the man, Tony, who
shot the gun, Vy did not see anyone with a gun or knife that night.
Ky Lieu,
a friend of the restaurant’s owner, testified that he was at the restaurant at
about 2:50 a.m. on August 27, 2003, but did not remember much because
he drank a lot of beer. He saw appellant
at the restaurant that morning, but he left when the fight started. Lieu acknowledged that, on October 17,
2003, he gave a statement at the Oakland Police Department. He did not lie to police, but he did not
remember if he told police that appellant was shooting into the restaurant. Lieu’s tape recorded interview with police
was played for the jury at trial.
In that
interview, Lieu said he was sitting at the bar when two groups of people
started fighting. He did not see any
weapons at that point. After the fight
stopped, he went outside. He then saw a
man he knew named Tony stand at the door and shoot into the bar with a
handgun. Tony, who was standing near
Lieu, fired three or four shots. Lieu
did not see anyone else that night inside or outside the bar with a gun. He identified Tony, the man who shot into the
bar, in a photo lineup. After the
shooting, Tony left in a green Honda automobile with a female.
After the
taped interview was played, Lieu acknowledged that he remembered seeing
appellant standing outside the restaurant and shooting through its glass door. Appellant was about four or five feet away
from the door when he shot the gun.
Ahn “Bao” Nguyen
(Bao) testified that he was a good friend of appellant, whom he had known for
15 or 16 years. He was with appellant
and several other friends at the restaurant on August 27, 2003, when a
fight broke out between six or seven people.
He saw appellant get hit in the head or eye and saw him bleeding a
lot. Appellant then “was trying to
either get a stick or a knife or gun or something, but I tried to prevent him
from doing that.” After the fighting
stopped, the people involved continued to shout at each other. Appellant, their friend Dai, and some other
people then went outside. Appellant
reentered the restaurant holding something black; Bao could not tell whether it
was a car jack, a stick, a knife, or a gun.
The shooting victim was still inside the restaurant, back near the pool
table. When appellant ran inside, Bao
and Dai tried to stop him from hitting people who were inside by grabbing him
and holding him back. Appellant, Dai,
and a few other people then went outside.
About two minutes after appellant went back outside, Bao heard gunshots
coming from outside. Bao, who was still
inside the restaurant, did not see who the shooter was.
Bao
participated in an audiotaped interview with police on the morning of the
shooting. That interview was played at
trial for the jury. In the interview,
Bao said he tried to push appellant out of the restaurant after appellant
entered with a handgun. As he held appellant,
the gun fired a shot into the floor.
Appellant then walked outside, still holding the gun. About one minute later, Bao heard two
gunshots coming from outside. The shots
went through the glass door of the restaurant and hit the victim in the chest. The victim was standing about 10 feet
away from the door. Bao did not see who
shot into the restaurant, but he did not see anyone else with a gun. He did not see the victim with either a gun
or a knife during the fight.
After the
tape was played, Bao testified on cross-examination that, after the fight was
over, words were exchanged between a number of people, including appellant and
the victim. The victim was cursing and
said something like, “ ‘This is not over yet. There’s still more to come.’ ” As Bao pushed appellant out the door of the
restaurant after appellant came back in with a gun, the victim, who was
yelling, followed them towards the front door.
Shortly after that, Bao heard the shots fired from outside.
My Nguyen
(My) testified that he had known appellant since childhood. My had a stroke in March 2003 and appellant,
who was a good friend, visited him and helped him with many things. My was at the restaurant on the morning of
the shooting in August 2003, along with appellant and two other friends, Bao
and Dai. They were drinking beer. A fight broke out between their group and
another group. My tried to protect himself. Bao came over to help him and told him to get
out, so My went home. My said he did not
remember much about that morning, claiming that his stroke had affected his
short-term memory.
My had been
interviewed by police on January 12, 2004, and an audiotape of the
interview was played at trial. In the
interview, My said that he, appellant, Dai, Bao, and Rebecca (Bui) were at the
bar drinking beer in the early morning of August 27, 2003, when a fight
started. The fight began after someone
said something negative about the part of Vietnam Dai was from, and Dai hit
him. The fight was between My’s group of
friends and another group. Appellant
pushed one of the men who was hitting Dai and the man hit appellant in the head
with a metal chair, causing his head to bleed.
My then saw
appellant run out of the restaurant to his car, which was parked right in front
of the restaurant’s doors. About a
minute later, he came back inside holding a black handgun. He said something like, “ ‘Who just hit
me . . . Who just hit me with the
chair’ . . . [A]nd that guy said, ‘Me, whattsup’ And [appellant] said, ‘Man, I want you
out—come outside. Me and you,
one-and-one.’ [The man responded,]
[l]ike, ‘I don’t wanna come outside.’ ”
Bao then grabbed appellant and said something like, “ ‘No, (Tony),
you don’t know what you’re doing[.]’ ”
Appellant then fired the gun twice.
at the restaurant with a gun.
My then
drove appellant home in appellant’s car, an Acura Legend. My asked appellant where the gun was, and
appellant said, “ ‘I don’t know.’ ”
He did not show the gun to My. My
told appellant, “ ‘You’re stupid.
What did you do that for’ ”
Appellant responded, “You know that guy hit me in the head with a chair
and I’m bleeding . . . .’ ” Appellant was mad. He also was drunk; My believed he had drunk
about six or seven beers, and he told My he had smoked pot. Appellant’s head was still bleeding and My
offered to take him to a doctor or the hospital, but appellant said he would
not go and did not want to get arrested.
My first
learned that someone had been shot at the restaurant when appellant called him
later that morning and said he had watched the news. He said, “ ‘Man, I think I killed
somebody. It’s on the news here
now.’ ” My asked him what he was
going to do, and appellant said he might leave the country and asked if My
could send him money if he needed it.
Chyuan Dam,
a friend of Tho Tu’s who was at the restaurant at the time of the fight
and shooting, testified that he did not see Tu approach the front door of the
restaurant during or after the fight.
Just before he heard gunshots, Dam, Tu, and another friend moved back
towards the back of the bar. He did hear
Tu arguing loudly with someone during the fight.
Oakland
Police Officer Eric Milina testified that he arrived at the scene at
2:55 a.m. on August 27, 2003.
Tu was lying on the floor of the restaurant with gunshot wounds to his
abdomen and back. Milina found one live
round inside the restaurant and two expended casings outside, directly in front
of the entrance to the bar; one casing was on the sidewalk and one was in the
street, at the curb. Milina saw no
weapons inside or outside the restaurant.
Tu was not in possession of any weapon.
Dr. Thomas Rogers,
a forensic pathologist,
testified that he performed an autopsy on Tho Tu. The cause of death was multiple gunshot
wounds. The major gunshot wounds
included a shot to the left front side of the abdomen and a shot to the right
back side of the body.
Oakland
Police Officer Brian Medeiros testified that an arrest warrant was issued
for appellant on August 28, 2003.
Appellant was arrested in Southern California in March 2008. The gun used in the shooting was never
recovered.
Imperfect Self-Defense
Appellant
contends the trial court erred in failing to instruct the jury sua sponte on
imperfect self-defense. (See CALJIC
No. 5.17.)
title="">[8]
Defense
counsel requested instructions related to self-defense, including CALJIC
No. 5.17, regarding imperfect (or “unreasonable”
self-defense. The trial court denied the request, stating,“I think the evidence indicates more of a sudden quarrel heat of passion
second, vol kind of issue [sic]. So I
will not be giving those.”
“ ‘ “It
is settled that in criminal cases, even in the absence of a request, the trial
court must instruct on the general principles of law relevant to the issues
raised by the evidence. [Citations.] The general principles of law governing the
case are those principles closely and openly connected with the facts before
the court, and which are necessary for the jury’s understanding of the
case.” [Citation.] That obligation has been held to include
giving instructions on lesser included offenses when the evidence raises a
question as to whether all of the elements of the charged offense were present
[citations], but not when there is no evidence that the offense was less than
that charged. [Citations.]’ ” (People v. Breverman (1998) 19 Cal.4th 142,
154.) “[T]he trial court need not
instruct on a lesser included offense whenever any evidence, no matter how weak, is presented to support an
instruction, but only when the evidence is substantial enough to merit
consideration by the jury. [Citation.]” (People
v. Barton (1995) 12 Cal.4th 186, 195, fn. 4.)
“Self-defense
requires an actual and reasonable belief in the need to defend against an
imminent danger of death or great bodily
If, however, the killer actually, but unreasonably, believed in the need to defend himself or herself
from imminent death or great bodily injury, the theory of ‘imperfect self
defense’ applies to negate malice.
[Citation.] The crime committed
is thus manslaughter, not murder.
[Citation.]” (People v.
1256, 1261.)
Imperfect
or unreasonable self-defense is “not a true defense; rather, it is a shorthand
description of one form of voluntary manslaughter. And voluntary manslaughter, whether it arises
from unreasonable self-defense or from a killing during a sudden quarrel or
heat of passion, is not a defense but a crime; more precisely, it is a lesser
offense included in the crime of murder.
Accordingly, when a defendant is charged with murder the trial court’s
duty to instruct sua sponte, or on its own initiative, on unreasonable
self-defense is the same as its duty to instruct on any other lesser included
offense: this duty arises whenever the
evidence is such that a jury could reasonably conclude that the defendant
killed the victim in the unreasonable but good faith belief in having to act in
self-defense.” (People v. Barton, supra, 12 Cal.4th at
pp. 200-201.)
Here, according to appellant, the substantial
evidence supporting imperfect self-defense included the evidence that Tu had
hit appellant over the head with a metal chair, causing appellant to bleed
profusely; Tu told appellant, “ ‘This is not over yet. There is more to come’ ”; after appellant
left the restaurant, Tu walked toward the front door in an “aggressive and
threatening manner”; and appellant and Tu were only 10 to 15 feet apart
when appellant fired at least two shots, killing Tu. We do not agree that this evidence was sufficient to require the trial
court to give an unreasonable self-defense instruction.
The evidence shows that Tu
was unarmed, at least 10 feet away from appellant, and inside the
restaurant when appellant shot him from the sidewalk outside. In light of this evidence, there simply is
not substantial evidence in the
record that appellant actually believed, as he stood outside the restaurant,
that he was in imminent danger of being killed or suffering great bodily injury
and that the immediate use of deadly force against Tu was therefore
necessary. (See CALJIC
No. 5.17.) This is so even assuming
that Tu was walking toward the door when appellant shot him and that Tu had
said, moments before, “ ‘This is not over yet.’ ” In addition, appellant never showed or expressed
any actual belief that he was in imminent danger. Rather, he expressed only anger and a desire
for revenge, as when he returned to the restaurant with a gun and told Tu to
come outside to settle things and when he later told My Nguyen that he shot Tu
because “that guy hit me in the head with a chair and I’m bleeding.”
The
evidence as a whole simply was not such that a jury could reasonably conclude that appellant killed Tu in the unreasonable
but good faith belief that he had to act in self-defense. (See People v. Barton, supra, 12 Cal.4th at
pp. 200-201.) Hence, the extremely slight evidence to which
appellant refers simply is not sufficient to trigger the trial court’s sua
sponte duty to instruct on unreasonable self-defense. (See Barton, at p. 195, fn. 4 [trial court is not required to instruct on lesser included offense
“whenever any evidence, no matter how
weak, is presented to support an instruction”].)
Instruction
Appellant
contends the trial court’s instruction on the effect of intoxication on the
charged crimes was erroneous. (See
CALJIC No. 4.21.1.)
The trial
court instructed the jury with CALJIC No. 4.21.1, as follows: “It is the general rule that no act committed
by a person while in a state of voluntary intoxication is less criminal by
reason of this conviction [sic]. Thus, in the crime charged in count two, the
fact that the defendant is voluntarily intoxicated is not a defense and does
not relieve the defendant of responsibility for the crime. This rule applies in this case only as to
count two.
“However,
there is an exception as to the general rule, namely, where a specific intent
or mental state is an essential element of a crime. In that event, you should consider the
defendant’s voluntary intoxication in deciding whether the defendant possessed
the required specific intent or mental state at the time of the commission of
the alleged crime.
“Thus, in
the crime charged in count two, [
element is the existence in the mind of the defendant of a certain specific
intent or mental state which is included in the definition of the crimes set
forth elsewhere in these instructions.
“If the
evidence shows that the defendant was intoxicated at the time of the alleged
crime, you should consider that fact in deciding whether the defendant had the
required mental state or specific intent.
“If from
all the evidence you have a reasonable doubt whether the defendant formed that
mental state or specific intent, you must find that he did not have that mental
state or specific intent.” (Italics
added.)
As shown in
italics above, the court erroneously instructed the jury that the intoxication
defense was applicable only to count two (possession of a firearm by a felon),
when in fact it was only applicable to count one (murder). Both the written and oral instruction
contained this error.
name="_ftnref9" title="">[9]
Respondent
acknowledges that the instruction was incorrect. Respondent argues, however, that appellant
forfeited this issue by failing to object and seek correction in the trial
court. We disagree. This is not a case, as respondent asserts it
is, of the court failing to expand, modify, or refine a jury instruction. Rather, the court gave an incorrect statement
of the law in its instruction that had the potential to confuse the jury. (See People v. Johnson (2004) 115 Cal.App.4th 1169, 1172
[appellate court may review any instruction given even if no objection was made
thereto in trial court, “ ‘ “if the substantial rights of the
defendant were affected” ’ ”].)
Respondent
further argues, on the merits, that this was a minor error involving just one
word (count “two”
, and that the instructions as a whole made clear to the jurythat the intoxication defense applied to count one. We tend to agree with appellant that this
error was so confusing that it was not necessarily cured by other instructions
that explained that count one, not count two, involved specific intent.
Assuming
that the mistake was not cured by other instructions, we nonetheless find the
instructional error harmless beyond a reasonable doubt. (See Chapman
v. California (1967) 386 U.S.
18, 24; see also People v. Chun
(2009) 45 Cal.4th 1172, 1205 (Chun).)
In
the undisputed evidence showed that three people in a vehicle were hit by
multiple gunshots fired at close range from three different firearms. Our Supreme Court held that the trial court
had incorrectly instructed the jury on the elements of second degree felony
murder. The court, however, found the
error harmless beyond a reasonable doubt.
It reasoned: “No juror could have
found that defendant participated in this
shooting . . . without also finding that defendant
committed an act that is dangerous to life and did so knowing of the danger and
with conscious disregard for life—which is a valid theory of malice. In other words, on this evidence, no juror
could find felony murder without also finding conscious-disregard-for-life
[i.e., implied] malice. The error in
instructing the jury on felony murder was, by itself, harmless beyond a
reasonable doubt.”
The trial
court in this case instructed the jury on second
degree murder under either express or implied malice theories, without any
requirement for unanimity as to one theory or the other. (See CALJIC No. 8.11.) With the 1995 amendment to section 22,
subdivision (b), voluntary intoxication is no longer admissible to negate
implied malice.
title="">[10] (See People
v. Timms (2007) 151 Cal.App.4th 1292, 1298.) Thus, the intoxication instruction was
applicable only to the express malice theory of murder.
The
evidence in this case showed that appellant fired at least two gunshots into a
restaurant that he knew was full of people and, in fact, hit the victim twice
from some 10 feet away. We conclude the
jury could not have found that appellant committed murder under an express
malice theory without also finding that he had acted with implied malice, i.e.,
that he intentionally committed an act that was dangerous to human life, with
knowledge of the danger to and with conscious disregard for human life. (See CALJIC No. 8.11; see also
accord, People v. Hach (2009)
176 Cal.App.4th 1450, 1457 [jury must have found implied malice second
degree murder where defendant fired rifle directly into car from 10 feet away
with knowledge that there were two people inside of it].) Accordingly, the error in instructing the
jury on the relationship of intoxication to the specific intent requirement of
express malice murder was harmless beyond a reasonable doubt.
The Trial Court’s Instruction on
Efforts to Suppress Evidence
Appellant
contends the trial court erred in instructing, pursuant to CALJIC
No. 2.06, on efforts to suppress evidence.
During
trial, the prosecutor requested that the trial court instruct the jury with
CALJIC No. 2.06, regarding the suppression of evidence. The prosecutor explained that a “firearm was
used in the commission of the offense.
The defendant fled the scene and destroyed or disposed of that firearm
that was used. The police executed a
search warrant on his residence shortly thereafter within the next day or so as
well as on his vehicle and the gun wasn’t recovered in those locations. [¶] So there was an active effort on the
defendant’s part to dispose of that evidence.”
Defense counsel objected, arguing that CALJIC No. 2.06 “is not
geared towards that type of situation where a person absconds after committing
a crime with a weapon and that weapon is simply not located.”
The trial
court ultimately instructed the jury with CALJIC No. 2.06, as
follows: “If you find that the defendant
attempted to suppress evidence against himself in any manner, such as by
destroying evidence or by concealing evidence, these attempts may be considered
by you as a circumstance tending to show a consciousness of guilt. However, this conduct is not sufficient by
itself to prove guilt, and its weight and significance, if any, are for you to
decide.”
The
prosecutor argued several times during closing argument that appellant
destroyed or disposed of the gun, which the jury could use to find
consciousness of guilt.
“ ‘[F]or
a jury to be instructed that it can infer a consciousness of guilt from
suppression of adverse evidence by a defendant, there must be some evidence in
the record which, if believed by the jury, will sufficiently support the
suggested inference.’ [Citation.]” (People
v. Hart (1999) 20 Cal.4th 546, 620, quoting People v. Hannon (1977) 19 Cal.3d 588, 597, disapproved on
another ground by People v. Martinez
(2000) 22 Cal.4th 750, 762-763; accord, People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 102 [before CALJIC No. 2.06 may be given, “there
need only be some evidence in the record that, if believed by the jury, would
sufficiently support the suggested inference”].) “To support an inference that the defendant
attempted to suppress evidence, the record need not establish that the evidence
actually was destroyed.
[Citations.]” (
when the jury could reasonably infer from the evidence that the defendant attempted
to suppress evidence. (
8 Cal.4th 1060, 1140; see also People
v. Jackson (1996) 13 Cal.4th 1164, 1224 [cautionary nature of, inter
alia, CALJIC No. 2.06 “benefits the defense, admonishing the jury to
circumspection regarding evidence that might otherwise be considered decisively
inculpatory”].)
Here, the
evidence showed that, at the time of the shooting, appellant had a gun in his
possession. The evidence further showed
that, shortly thereafter, police officers searched appellant’s car and his
apartment, but never found the gun.
While it is possible that appellant took the gun with him when he fled,
the evidence showing that the gun was not found after these searches
constituted “some evidence,” warranting the giving of CALJIC
No. 2.06. (See People v. Hart, supra, 20 Cal.4th at p. 620.) Hence, the court did not err in giving CALJIC
No. 2.06.
Moreover,
even were there no evidence to
support the giving of this instruction, any error would be harmless. (See People
v. Watson (1956) 46 Cal.2d 818, 836.)
The evidence presented at trial that appellant was the shooter was
overwhelming. Indeed, during closing
argument, defense counsel explicitly conceded that appellant shot Tu, saying,
“[There] was never an issue who shot Tho Tu. . . .
Tony Tran shot Tho Tu.” In
addition, the instruction did not inform the jury that appellant suppressed
evidence. Rather, it said that
attempted to suppress evidence against himself, that could be considered as a circumstance tending to show guilt. (See CALJIC No. 2.06; see also
Appellant contends that, even if
none of the errors in themselves require reversal, the cumulative effect of
those errors resulted in prejudicial error.
(See People v. Hill (1998)
17 Cal.4th 800, 844.) We
disagree.
We have concluded that none of the
alleged errors were prejudicial. Nor do
we find that the
cumulative effect of any errors calls into doubt the jury’s verdict or
undermines the fairness of the trial in this case, particularly in light of the
strong evidence of guilt. (See People
v. Cuccia (2002)
97 Cal.App.4th 785, 795.)
The
judgment is affirmed.
>
_________________________
Kline,
P.J.
We concur:
_________________________
Haerle, J.
_________________________
Richman, J.
A131099, People v. Tran
name="_ftn1" title=""> [1]
All further statutory references are to the Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2]
Appellant’s trial took place in December 2010.
