P.v . Thongdeng

Filed 7/28/10 P.v . Thongdeng CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed as modified.

Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Introduction

Defendant Narong Thongdeng was convicted of first degree murder and street terrorism. He raises several issues on appeal.

First, defendant argues a comment regarding gang members by the trial court during voir dire prejudiced him. Having reviewed the courts objected‑to comment, as well as the courts other comments during voir dire, we conclude no error occurred.

Next, defendant argues his right to confrontation under the Sixth Amendment to the United States Constitution was violated when the trial court admitted the murder victims dying declaration. The California Supreme Court has resolved this issue contrary to defendants argument. (People v. Monterroso (2004)34 Cal.4th 743, 763 (Monterroso).) Defendant next argues that the victims dying declaration was insufficient evidence of the special circumstance that the murder was committed during the attempted commission of a robbery. However, the special circumstance that the murder was committed for a criminal street gang purpose was supported by substantial evidence, and any alleged error regarding the other special circumstance is therefore irrelevant.

Defendant also argues a 25‑year‑to‑life sentencing enhancement imposed pursuant to Penal Code section 12022.53, subdivision (d) violates double jeopardy. But defendant concedes People v. Izaguirre (2007) 42 Cal.4th 126, 134 has resolved this issue against him.

Finally, defendant argues, and the Attorney General concedes, the abstract of judgment for defendants indeterminate prison sentence must be corrected to reflect the defendants presentence custody credits. We direct the trial court to correct the abstract of judgment for the indeterminate sentence, but otherwise affirm the judgment.

Statement of Facts and Procedural History

Soon after midnight on May 11, 2006, Garden Grove Police Officer David Scroggins was parked across the street from a carwash, when he heard four gunshots coming from that direction. He saw two people running across the carwash property. Officer Scroggins initiated a felony stop of a Toyota Corolla he had seen emerge from the carwash. Four people were in the Corolla: Saron Peck, the driver of the car; defendant, in the front passenger seat; Richman Em, in the left rear passenger seat; and Joshua Richards, in the right rear passenger seat. A nine‑millimeter semiautomatic blue steel handgun was partially concealed below the drivers seat. A blue bandanna was on the backseat.

Another Garden Grove police officer, Timothy Kovacs, responded to the carwash and found Miguel Davila in the drivers seat of his Acura. Davila had been shot four times. Officer Kovacs asked Davila what had happened. Davila replied, they shot me. Officer Kovacs told Davila that he thought Davila was dying, and asked him if he understood he was dying. Davila responded, I think so.

Officer Kovacs asked Davila who had shot him, to which Davila responded it was two Asian guys. When Officer Kovacs asked Davila to describe the shooters, Davila replied, two male Asians about 30 to 40 years. Officer Kovacs asked Davila why he had been shot, and Davila replied, they tried to get money from me. They tried to get my money from me. When Officer Kovacs asked what the suspects wore, Davila said, they had on bandannas. Davila died at the scene, about three to five minutes after Officer Kovacs began interviewing him.

Davila suffered 13 gunshot wounds from four bullets, and died as a result of exsanguination. The handgun found in Pecks car was determined to be the gun used to kill Davila.

After receiving his Miranda v. Arizona (1966) 384 U.S. 436 warnings, defendant admitted he was a member of the Exotic Family City Crips gang. Defendant stated he, Peck, Em, and Richards had gone out during the evening of Davilas murder to commit carjackings and make some money. When Peck stopped the car at a carwash, defendant got out of the car to urinate. Defendant said that when he approached Davila, who was in his car, to get a cigarette, Davila pulled out a knife, waved it around, and leaned toward defendant with it. Defendant had a gun in his waistband; he said that to defend himself against Davila, he pulled out the gun and shot it.

Long Beach Police Officer Joe Pirooz, the prosecutions gang expert, testified the Exotic Family City Crips was a criminal street gang whose primary activities include burglaries, robberies, home invasion burglaries, shootings, driveby shootings, and murders. Defendant, Em, and Richards were all active members of the Exotic Family City Crips gang on May 11, 2006.

Defendant, Richards, and Em were charged in an indictment with murder with special circumstances (Pen. Code,  187, subd. (a), 190.2, subd. (a)(17)(A), (22)), and street terrorism (id.,  186.22, subd. (a)). The indictment alleged as sentencing enhancements that Davilas murder was committed for the benefit of, at the direction of, or in association with a criminal street gang (id.,  186.22, subd. (b)), and that defendant intentionally and personally discharged a firearm proximately causing death in committing a gang-related crime (id.,  12022.53, subd. (d), (e)(1)).

Defendants trial was bifurcated from that of Em and Richards.[1] A jury found defendant guilty of both charges, and found true the special circumstances allegations and the sentencing enhancements.

Defendant was sentenced to life without the possibility of parole, plus a consecutive term of 25 years to life. The trial court struck the gang enhancement for sentencing purposes, and stayed imposition of sentence on the street terrorism charge. Defendant filed a timely notice of appeal.

Discussion

I.

The Trial Courts Comment to the Venire Regarding Gang Members Did Not Violate Defendants Rights.

During jury selection, two prospective jurors expressed concerns about their ability to apply a presumption of innocence toward a person identified as a gang member. Later in the jury selection process, the trial court made the following comments:

 . . . I think I need to clear up a few misconceptions that may have come out during the voir dire process.

I think we all have agendas. We all want a fair and impartial jury, but what that means is kind of up to whos wanting that fair and impartial jury. I think each side in this case, that is, defense and prosecution, probably would like somebody thats a little more fair and a little more impartial to them. Me, I want somebody who will follow the law. To me, thats the definition of fair and impartial, will you follow the law. [] . . . []

 . . . [O]ne juror had an issue concerning the gangs. They said, I may be a little more biased against gangs.

I mentioned at the beginning of this trial the State of California doesnt like criminal street gangs. Theyre not called benefit to society gangs. Theyre called criminal street gangs. The assumption is someone who is involved in a gang is probably going to be committing crimes, but what does probably mean for criminal conviction? Nothing. It is proof beyond a reasonable doubt. [] . . . []

 . . . If youre a gang member, you have to commit a crime in order to be criminally liable for anything. (Italics added.)

The trial court then obtained the assurance of the prospective jurors who had expressed disapproval of gangs that they would not vote guilty unless the prosecution proved defendants guilt beyond a reasonable doubt, even if the evidence proved defendant was a gang member.

Defendants trial counsel objected to the italicized portion of the trial courts comment. The trial court denied defendants motion for a mistrial.

When a trial court gives the jury a misleading or ambiguous explanation of the law, it may violate due process if the explanation might cause the jury to misinterpret the applicable law. (Estelle v. McGuire (1991) 502 U.S. 62, 74‑75.) Such an error denies a defendant his or her Sixth Amendment right to a reliable jury determination of the charges. (Ho v. Carey (9th Cir. 2003) 332 F.3d 587, 592‑595.)

Defendant argues the trial courts comment constituted a conclusive presumption that if a juror found true beyond a reasonable doubt that defendant was a gang member, he or she should presume defendant would probably commit crimes. When viewed in full context, the courts comment reinforces the concept that defendant is innocent of all charges unless proven guilty of those charges beyond a reasonable doubt, and that even if defendant is proven to be a gang member, he is not necessarily guilty of the crimes charged. We conclude there was no error.

II.

The Trial Court Did Not Err in Admitting Davilas Dying Declaration.

Before trial, defendants counsel objected to admission of Davilas dying declaration on the ground the statement lacked foundation and was speculative, vague, and ambiguous. The trial court overruled the objection. On appeal, defendant contends admission of Davilas dying declaration violated his right of confrontation under the Sixth Amendment as interpreted by Crawford v. Washington (2004) 541 U.S. 36 (Crawford).[2] We review admission of statements under the dying declaration exception for abuse of discretion. (Monterroso, supra, 34 Cal.4th at p. 763.)

Evidence Code section 1200 sets forth the hearsay rule: (a) Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. [] (b) Except as provided by law, hearsay evidence is inadmissible.

A dying declaration is an exception to the hearsay rule: Evidence of a statement made by a dying person respecting the cause and circumstances of his death is not made inadmissible by the hearsay rule if the statement was made upon his personal knowledge and under a sense of immediately impending death. (Evid. Code,  1242.)

In all criminal prosecutions, the accused has a right, guaranteed by the Sixth Amendment to the United States Constitution, to be confronted with the witnesses against him. (U.S. Const., 6th Amend.; Crawford, supra, 541 U.S. at p. 42.) In Crawford, the United States Supreme Court held the confrontation clause prohibits admission of out-of-court statements that are testimonial in nature, unless the declarant is unavailable and the accused has had a prior opportunity to cross-examine. (Crawford, supra, 541 U.S. at pp. 68‑69.) In Crawford, during trial on charges of assault and attempted murder, the prosecution played for the jury the defendants wifes tape‑recorded statement to the police, even though the defendant had no opportunity for cross‑examination. (Id. at pp. 38‑40.) The Supreme Court held that the wifes out‑of‑court statement could not be used against the defendant in his trial. (Id. at pp. 38‑39.)

The court in Crawford, supra, 541 U.S. at page 68, held: Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers design to afford the States flexibility in their development of hearsay law . . . . The Supreme Court further held: Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. (Ibid.) The Crawford court declined to specifically define the scope of the term testimonial. (Ibid.) The high court acknowledged that dying declarations, even those that were testimonial in nature, were recognized at common law. (Id. at p. 56, fn. 6.) Yet the Supreme Court left an unanswered question, stating: We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. (Ibid.)

The California Supreme Court, however, directly answered this question in Monterroso, supra, 34 Cal.4th at pages 764‑765, by holding that admission of a statement under the dying declaration exception to the hearsay rule, whether or not testimonial in nature, does not violate a defendants Sixth Amendment right to confrontation. [I]f, as Crawford teaches, the confrontation clause is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding [citation], it follows that the common law pedigree of the exception for dying declarations poses no conflict with the Sixth Amendment. We therefore conclude the admission of [the victim]s dying declaration was not error. (Id. at p. 765.) Monterroso thus disposes of defendants contention that admission of Davilas dying declaration violated defendants Sixth Amendment right to confrontation.

Defendant also argues there was insufficient evidence of the special circumstance that Davilas murder was committed during the attempted commission of a robbery, because the dying declaration was the only evidence of the attempted robbery and was not sufficiently credible. We need not reach this issue. In addition to finding the special circumstance that the murder was committed during the commission of another felony (Pen. Code,  190.2, subd. (a)(17)(A)), the jury found that the murder was committed for a criminal street gang purpose (id.,  190.2, subd. (a)(22)). There was sufficient evidence that defendant was an active participant in a criminal street gang, and that Davilas murder was committed to further the gangs activities. On appeal, defendant does not challenge the sufficiency of the evidence supporting that special circumstance, the true finding on the gang enhancement (id.,  186.22, subd. (b)), or his conviction for street terrorism (id.,  186.22, subd. (a)). Even if defendant were correct regarding the evidence supporting the special circumstance of murder committed during the attempted commission of a robbery, the special circumstance of murder committed for a criminal street gang purpose was amply supported by the evidence.

III.

The Additional 25‑year‑to‑life Term Imposed Pursuant to Penal Code Section 12022.53, Subdivision (d) Does Not Violate the Prohibition Against Double Jeopardy.

Defendant argues the additional 25‑year‑to‑life sentencing enhancement, imposed pursuant to Penal Code section 12022.53, subdivision (d), violates the constitutional guarantee against double jeopardy because the trial court relied on the same fact for both the murder conviction and the enhancement. Defendant concedes, however, that this argument has been rejected by the California Supreme Court. (People v. Izaguirre, supra, 42 Cal.4th at p. 134.)[3] We find no error.

IV.

The Indeterminate Abstract of Judgment Must Be Corrected to Show Credit for 982 Days of Presentence Custody Credits.

Defendant argues, and the Attorney General concedes, the abstract of judgment for defendants indeterminate prison sentence must be corrected to reflect 982 days of presentence custody credit. We direct the trial court to correct the abstract of judgment on defendants indeterminate sentence to reflect the presentence custody credits to which defendant is entitled.

Disposition

We direct the trial court to prepare an amended abstract of judgment for defendants indeterminate prison sentence, crediting defendant with 982 days of presentence custody credit, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.

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[1] Em was separately convicted, and appealed from the judgment of conviction. A majority of this court affirmed the judgment. (People v. Em (2009) 171 Cal.App.4th 964.)

[2] Defendant forfeited this argument by failing to raise it in the trial court in the first instance. (People v. Norman (2003) 109 Cal.App.4th 221, 229.) We will nevertheless reach the merits under the relevant constitutional standards, in the interest of judicial economy to prevent the inevitable ineffectiveness‑of‑counsel claim. (Id. at p. 230.)

[3] Defendant acknowledges that this court is bound to follow the Supreme Courts decision in People v. Izaguirre, supra, 42 Cal.4th 126, and that he has raised the issue in this court to preserve it for later review.