P. v. Quan

















Filed 6/21/12 P. v. Quan 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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




>

THE PEOPLE, Plaintiff and Respondent, v. QUANG VAN QUAN, Defendant and Appellant.

G044609 (Super. Ct. No. 06CF2227) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, William R. Froeberg, Judge. Affirmed.

Cliff Gardner, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, William M. Wood and Marvin E. Mizell,
Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury
convicted defendant Quang Van Quan of three counts of href="http://www.fearnotlaw.com/">first degree murder and found true two
special circumstance allegations that the murder took place during the
commission of burglary and robbery or attempted
robbery. (Pen. Code, §§ 187,
subd. (a),190.2, subd. (a)(17)(A) [robbery], (a)(17)(G) [burglary]; all
statutory citations are to the Penal Code unless noted.) Quan contends the trial court erred by
failing to find a prima facie case of prosecutorial race discrimination during
jury selection, the prosecution’s introduction of “surprise evidence” violated
his right to a fair trial and the effective assistance of counsel, and the
trial court erred by instructing with CALCRIM Nos. 337 and 359. For the reasons expressed below, we affirm.

I

Factual and Procedural History

On
May 29, 2006, Garden
Grove police officers found the bodies of Phong Le,
his wife Trisha Lam, and Lam’s six-year-old son Tommy in separate upstairs
bedrooms of the family’s Garden Grove
home. Le and Tommy wore pajamas. The victims suffered numerous shallow and
deep stab wounds to the head, neck, and back, which would have caused extreme
pain and suffering. The assailant or
assailants bound the victims’ hands with wire, and stuffed a baby’s bib in
Lam’s mouth, covering it with duct tape.
Lam had clenched her fist tight enough to drive her fingernails into her
palm. The officers found the couple’s
infant daughter Kaitlin, Quan’s goddaughter, in the master bedroom dehydrated
and soiled in urine and feces but otherwise unharmed. The front door was unlocked and there was no
sign of forced entry.

Le,
a former member of the Oriental Boys gang, had recently told a friend, Tung
Nguyen, he felt anxious because he owed people money, and they were after his
family and him. Security cameras and
monitors were placed throughout Le’s residence, and he had recently changed the
locks. Le carried a gun in his
waistband, which he sometimes kept under a mattress.

Quan,
an erstwhile associate of a different gang, and Le met each other in prison in
the 1990’s. In May 2006, Quan lived in Houston,
Texas.
On May 17 or May 19, 2006,
he visited probation and immigration authorities in Los
Angeles.

Cellular
tower records showed that on May 26 at 7:50
p.m., Quan’s cell phone received a call from a cell phone belonging
to Quan’s wife, Michelle Hotodd, from the vicinity of Rosemead,
California.
At 10:03 p.m., a call from the
Rosemead area was placed from a
prepaid cell phone, purchased on May 21 and used by Quan on the night of the
killings, to Le’s cell phone. Over the
next 25 minutes, numerous calls were placed from Quan’s prepaid cell phone and
Hotodd’s cell phone to Le’s cell and home phones from locations approaching Garden
Grove. At 10:46 p.m., 10:47
p.m., and 10:50 p.m., a
call was placed from Hotodd’s cell phone to Le’s cell phone from a location
near Le’s home. At 10:55 p.m., Quan, using Hotodd’s cell phone near Le’s
home, left a voicemail message on Le’s cell phone in Vietnamese: “Phong, call me back, okay. The kid has a problem. We need to have a place tonight. All right.
A mi. Call me back tonight.” A call was placed from Le’s cell phone to
Hotodd’s cell phone at 10:57 p.m.,
and to Le’s cell phone voicemail at 10:58 p.m.
and 10:59 p.m. At 11:04 p.m.,
a call from Hotodd’s cell phone to Quan’s cell phone originated from a location
near Le’s home. At 11:09 p.m., a call was placed from Hotodd’s cell phone to
Le’s cell phone. Le’s cell phone placed
a final call at 11:15 p.m. A call from Hotodd’s cell phone to Quan’s
cell phone occurred at 1:40 a.m.,
from a location near Le’s home.

Alerted
by a concerned coworker, Garden Grove
police officers made a welfare check at his home on May 29th and discovered the
bodies. The Le’s master bedroom had been
ransacked. The safe was open and two of
the victims’ cell phones, and a laptop computer, were missing. Cabinet doors in the upstairs bathrooms were
open. Investigators found a gun under
the mattress in the southeast bedroom, where Le’s body was found. They found an IOU from Le to Quan buried in a
stack of papers on a desk. They also
found baggies, drug pipes, and a drug scale in the southeast bedroom, and a
pair of latex gloves, one inside the other with a rubber band around the wrist
area, behind a door. DNA on the exterior
of the gloves came from Le, Lam, and Tommy, and the DNA on the interior of the
gloves belonged to an unknown person. In
the kitchen, investigators found $66,000 in gold Krugerrand coins hidden in a
cabinet. Le had methamphetamine in his
system at the time of his death.

In
early June 2006, Garden Grove police officers travelled to Houston. They found Quan at conducting a garage sale
at his residence. One of the officers
posed as a customer, while the other officer dialed Hotodd’s cell phone, which
Quan answered.

Officers
arrested Quan on July 12, 2006. They
interviewed him on several occasions after he waived his Miranda (Miranda >v. Arizona
(1966) 384 U.S. 436) rights. In a July
12 interview, Quan claimed he had last seen Le in Garden Grove in March. He considered Le family, and Le was godfather
to Quan’s son. Quan said Le owed a man
named Tam money, and Tam had people “sweating” Le for repayment. Le also owed money to the owner of a local
business called Magic Mattress, and a Black Dragon gang member nicknamed “Saigon”
was demanding repayment of $40,000 or $80,000.
Quan sold his van and borrowed money from friends to loan Le about
$80,000. In May, he came to California
to check in with immigration officials.
He stayed a few days to a week before returning to Texas.

Later
in the interview, Quan acknowledged Le gave him an IOU. To make the loan, Quan claimed he had
borrowed the money from an organized crime boss named Peter Geo Wang
(Peter). Quan described Peter as
dangerous. The gangsters warned Quan and
Le to repay the money quickly, and threatened to kill them and their family.

After
the officers confronted Quan with the cell phone records, Quan explained he
took Peter,“Fat Boy,” and another man to Le’s house, but Le was not home. Quan phoned Le to tell him the men wanted to
speak with him. Le arrived home a short
time later. Quan initially stated he
waited outside while the men spoke with Le in the driveway before accompanying
Le inside. While he waited outside, he
phoned his wife, then departed. Quan stated
Peter agreed to forgive Quan’s debt because Quan took them to Le’s home. Quan denied a recently acquired laptop
computer came from Le’s home, explaining he bought the computer at a market
“under the table.”

During
a July 14 interview, Quan again denied he took the laptop from Le’s house. Quan asserted it was Peter and his cohorts
who called Quan on a prepaid cell phone.
Quan merely took them to Le’s house to discuss Le’s $80,000 debt to
Peter. Le confided to Quan he would tell
the men he had borrowed the money and provide a promissory note. Quan then drove to Le’s house and the others
followed in another vehicle. Le asked
Quan to tell the men to speak with him inside the house. Quan claimed he stayed outside. After a while, Le emerged from his house and
told Quan the men wanted to know where the money was located. Le then asked Quan to leave.

Quan
repeated his assertion he departed after calling his wife, but when pressed by
the detectives, he admitted he entered the house after Le came outside. Le angered the men when, pressed about
repayment, he exclaimed, “Fuck it. When
I have it, then I will pay it.” Peter
and Le directed Quan to leave the house.
Quan denied knowing the men intended to kill Le.

During
a second interview later in the day on July 14, Quan elaborated on his earlier
statements. After entering Le’s house
through the garage, Quan claimed the men confronted Le and demanded their
money. Le asked for more time,
explaining he gave the money to his aunt, but she no longer had it. Peter told him he did not care. Le responded he would pay as soon as he
could, and he was currently trying to refinance his home. Peter asked to see the refinance papers. The men accompanied Le to the upstairs
bedroom to get the refinance papers off his laptop computer. Fat Boy pointed a gun at Le and told him to
get up and not to move. Fat Boy tied
Le’s hands with wire, made him sit on a chair, and left the room. Peter, who wore gloves, refused Le’s request
for more time. About 30 minutes later,
Fat Boy returned and reported he could not find anything. Quan asked the men “what you guys
doing?” Peter responded, “none of your
fucking business,” and told Quan to “[g]et the fuck out of here, it’s none of
your concern now.” Quan departed. He heard a thump, as if someone fell. Quan insisted Peter told him they only wanted
to talk to Le about repayment and he had no idea the men intended to rob,
burglarize, or murder Le and his family.

A
Federal Bureau of Investigation agent prepared a photo lineup containing a
photograph of Wang. Quan identified the
man in the photo as Peter, whose real name was Gaorong Xiao. At the time of the crimes, federal
authorities supervised Peter, and he was wearing a global positioning system
(GPS) ankle bracelet. The GPS device
showed Peter was home in Walnut, California, when the murders occurred. There was no evidence showing someone
tampered with or removed Peter’s GPS bracelet.

Finally,
the prosecution presented evidence Quan previously committed commercial and
home invasion robberies with other perpetrators. He and his accomplices used guns, bound the
victim’s hands, ransacked the premises, and stole money and jewelry.

In
October 2010, a jury convicted Quan as noted above. In December 2010, the trial court sentenced
Quan to three consecutive sentences of life in prison without possibility of
parole.

II

Discussion

A. The Prosecutor Did Not Use Peremptory
Strikes in a Discriminatory Manner

name="SDU_2">name="citeas((Cite_as:_2010_WL_3721803,_*2_(Ca">Quan contends the trial court erred in denying
his motion challenging the prosecutor’s use of peremptory challenges. He asserts the prosecutor tainted jury
selection and his trial in a manner repugnant to the state and federal
Constitutions by using peremptory strikes to discriminate against Hispanic
jurors. (People v. Wheeler (1978)
22 Cal.3d 258 (Wheeler); Batson v. Kentucky (1986)
476 U.S. 79 (Batson). We disagree.

Jury
selection began on September 27, 2010, with a panel of approximately 110 jurors
after hardship excusals. The court
called 20 jurors selected randomly to sit in the jury box. The court advised the prospective jurors the
attorneys could not excuse them based on race or ethnicity.

Hispanic
female juror S.G. was in the first group.
Born in the United States, she worked as an office assistant for the
civil division of the superior court.
She and her husband, a landscaper, had a 12-year-old daughter. She had completed the 11th grade, and had
never served on a jury. Although she had
a brother in prison, and another in jail, she believed the police and court
system had treated her brothers fairly and she claimed she could be
impartial. The prosecutor asked only a
few questions directed at S.G. concerning whether she and the other jurors
would be able to follow the law concerning felony murder, even when there was
no intent to kill. S.G. responded,
“Yes.”

After
the parties exercised several peremptory challenges, juror A.Z. entered the
jury box. She was Mexican-American, born
in the United States, lived in Anaheim, had some high school education, and
worked in a bank research department.
She and her husband, a truck driver, had three sons ages 21, 16, and
14. She had never served on a jury. Her nephew was a juvenile corrections officer
in Orange. Asked if she could be “fair
and impartial,” she responded “I believe so.”
She also acknowledged in response to defense counsel’s questions that it
would be possible for her to vote not guilty.
The prosecutor did not ask her any questions.

The
prosecutor used his fifth peremptory challenge to excuse S.G. After three more peremptory challenges by the
prosecutor, A.Z. remained in the jury box, as did a second Hispanic juror in
seat No.12.

After
a recess, juror E.R. entered the jury box.
E.R. identified himself as Hispanic.
He worked as an engineering manager at a satellite manufacturing
company, and he had attended junior college.
He and his wife, a payroll analyst, had two children ages 35 and
34. He had never served on a jury. Although his daughter had suffered a
conviction for driving under the influence (DUI), he had “no opinion” whether
she was treated fairly because he “wasn’t involved.” He also had three brothers and a sister who
had been incarcerated for federal crimes, but knew little about the nature of
their offenses. E.R. revealed one of his
siblings was incarcerated for gang-related violence. He remained in contact with one brother and
believed it was his siblings’ own decisions that got them into legal
trouble. Despite the incarcerations of
family members, E.R. asserted he could be fair and impartial and would follow
the law. He stated the prosecutor should
not worry about having him on the jury.

With
his tenth peremptory challenge, the prosecutor excused A.Z. After the defense excused two prospective
jurors, the prosecutor used his eleventh peremptory challenge to excuse
ER. Defense counsel objected to the
discharge of the three jurors on Batson/Wheeler
grounds at a sidebar conference. The
trial court denied the motion without asking the prosecutor to provide reasons,
noting E.R. had four relatives in prison.

Voir
dire resumed. Two Hispanic jurors
remained after the parties concluded exercising peremptory challenges,
including a woman identifying herself as Cuban-born, and the juror referenced
above in seat No. 12.href="#_ftn1" name="_ftnref1" title="">[1] The court later noted for the record the jury
consisted of nine white males, three white females, and two Hispanic
females. The defense used peremptory
challenges to excuse six Hispanic jurors.

Quan
argues a “statistical analysis supports a conclusion that a prima facie case of
discrimination has been made. Here,
Hispanics made up only 18[percent] of the jury venire. . . . But the prosecutor used [27 percent] of his
peremptory challenges on the Hispanic jurors . . . . Moreover, the prosecutor discharged 50[percent]
(3 out of 6) of the Hispanics in the jury box. . . . In comparison, of the 27 non-Hispanics called
to the box, the prosecutor’s strike rate was only 29[percent] (8 out of
27).” (See People v. Cowan (2010) 50 Cal.4th 401, 447-448 [prima facie case where
strike rate against African-Americans was 10 percent higher than percentage of
African-Americans in the venire].) Quan
also argues relevant circumstances beyond the statistics support an inference
of discrimination. He cites the
discharged prospective jurors’ statements they could be fair and impartial, the
prosecutor’s failure to ask S.G. questions about her brothers’ incarcerations,
and the failure to ask A.Z. any questions.
(See Batson, >supra, 476 U.S. at pp. 96-97
[prosecutor’s questions and statements during jury selection may support or
refute an inference of discriminatory purpose]; People v. Taylor (2010) 48 Cal.4th 574, 615 [prosecutor’s failure
to engage the prospective juror in more than “desultory voir dire” or ask any
questions is a significant factor in determining whether a prima facie case has
been established].)

“‘Exercising
peremptory challenges because of group bias rather than for reasons specific to
the challenged prospective juror violates both the California Constitution and
the United States Constitution.’” (People
v. Cleveland (2004) 32 Cal.4th 704, 732; see generally
Batson v. supra, 476
U.S. at p. 88 ; Wheeler, supra, 22
Cal.3d at pp. 278-282 ( Wheeler ).) Subject to rebuttal, the prosecutor is
presumed to have acted properly, and the burden rests on the challenger to
demonstrate discrimination infected the trial.
(People v. Bonilla (2007) 41 Cal.4th 313, 341 (Bonilla).) To do so, a defendant must first “make out a
prima facie case ‘by showing that the totality of the relevant facts gives rise
to an inference of discriminatory purpose.’
[Citation.] Second, once the
defendant has made out a prima facie case, the ‘burden shifts to the State to
explain adequately the racial exclusion’ by offering permissible race-neutral
justifications for the strikes.
[Citations.] Third, ‘[i]f a
race-neutral explanation is tendered, the trial court must then decide . . .
whether the opponent of the strike has proved purposeful . . .
discrimination.’ [Citation.]” (Johnson v. California (2005) 545
U.S. 162, 168, fn. omitted; People
v. Thomas (2012) 53 Cal.4th 771, 793-794 (Thomas).)

When
a trial court denies a Batson/Wheeler motion based
on the challenger’s failure to make a href="http://www.fearnotlaw.com/">prima facie case of discrimination,
we review the record to determine if substantial evidence supports the trial
court’s ruling. (People v.Yeoman (2003)
31 Cal.4th 93, 116.) We must affirm if
the record suggests reasonable grounds for the prosecutor’s decision to strike
the prospective jurors. (Ibid.) In asserting a prima facie case, the
defendant must “make as complete a record as feasible.” (People v. Boyette (2002) 29
Cal.4th 381, 422.) It is the
challenger’s burden to establish a complete record showing bias. (Ibid.)

Here,
we may infer the trial court found Quan failed to establish a prima facie case
of discrimination because it denied Quan’s motion without asking the prosecutor
why he excused the three Hispanic jurors.
Substantial evidence supports the trial court’s ruling because the
record suggests the prosecutor exercised his peremptory challenges for
nondiscriminatory reasons. S.G. had one
brother in prison and another in jail.
E.R. had four incarcerated siblings, a daughter who had suffered a DUI,
and family gang connections. Although
the jurors’ stated they could remain impartial, a prosecutor reasonably could
fear that a juror who had a close family member arrested, prosecuted, and
incarcerated might subconsciously harbor bias against law enforcement. (See People v. Cornwell (2005) 37
Cal.4th 50, 70 [excused juror’s voir dire disclosed numerous reasons for a
prosecutor to excuse her, including personal experience with an allegedly
unfair homicide
prosecution of a close relative]; People
v. Douglas (1995) 36 Cal.App.4th 1681, 1690.); People v. Garceau (1993) 6 Cal.4th 140, 172; People v. Cummings (1993) 4 Cal.4th 1233, 1282; >People v. Walker (1988) 47 Cal.3d 605,
626

The
nondiscriminatory reasons supporting the prosecutor’s challenge to A.Z. are not
as obvious as those supporting the challenge to S.G. or E.R. But given A.Z.’s low educational level and
failure to have previously served on a jury, the prosecutor may have concluded
she would have difficulty understanding the complexities of a case involving a
triple murder with special circumstances, and numerous theories of liability,
including premeditation and deliberation, accomplice liability, and felony
murder. (See People v. Reynoso (2003) 31 Cal.4th 903, 923-925.)

Finally,
the prosecutor repeatedly accepted the jury as constituted with Hispanic juror
No.12 on the panel, and two Hispanic women eventually served on the jury. This suggests that race was not a motive in
the prosecutor’s peremptory challenges of the other three jurors. (Thomas,
supra, 53 Cal.4th at p. 796
[prosecutor’s pattern of excusals and acceptances during voir dire did not
support an inference of discrimination where prosecutor accepted four
African-American jurors]; People v. Lenix
(2008) 44 Cal.4th 602, 629; People v.
Carasi (2008) 44 Cal.4th 1263, 1292.)

As
for Quan’s statistical argument, Thomas is
dispositive. There, African–Americans
constituted 26 percent of the prospective jurors who had been called into the
jury box (15 out of 61) and the prosecutor had exercised 37 percent of his
challenges (six out of 16) against African–Americans. The court held, “This disparity is not
significant enough, in itself, to suggest discrimination. (See Carasi, supra, at pp.
1291, 1295 [no prima facie case of gendername="citeas((Cite_as:_53_Cal.4th_771,_*796,_2"> discrimination even though
prosecutor used 20 out of 23 peremptory challenges against female prospective
jurors]; People v. Bonilla (2007) 41 Cal.4th 313, 345 [no prima
facie case of gender discrimination even though women represented 38 percent of
the jury pool and the prosecutor used 67 percent of his strikes against
women].)” (Thomas, supra, 53 Cal.4th
at p. 796.) Here, the prosecutor’s
acceptance of the jury with two Hispanic women “strongly suggests that race was
not a motive” in the prosecutor’s challenges to other jurors from the same
cognizable group. (People v. Lenix (2008) 44 Cal.4th 602, 629.) We therefore conclude the record does not
support an inference of discrimination.

name=Ic34496595f8711e08b05fdf15589d8e8>name="SDU_969">B. Stricken
Testimony That Le Told Nguyen He Stole $300,000 from a Drug Dealer Does Not
Require Reversal

Quan
next contends the prosecution introduced “surprise” or different evidence at
trial that undercut his defense and violated his state and federal
constitutional rights to due process and the effective assistance of counsel. As we explain below, the trial court struck
the testimony, and ordered the jury to disregard it. We find no basis to conclude Quan’s state and
federal constitutional rights to due process and the effective assistance of
counsel were violated.

At
the November 2007 preliminary hearing, the prosecutor theorized the killings
occurred during an attempt to collect $80,000 that Le had borrowed from
organized crime figures through Quan. At
a pretrial hearing in September 2010, the prosecutor sought permission to
introduce Le’s hearsay statements to Nguyen.
The prosecutor offered to prove that Nguyen would testify Le told him he
was anxious and worried “they were after his wife and children because he could
not pay back the money.” The prosecutor
argued the evidence demonstrated Le’s state of mind at the time of the crimes,
explained why he had surveillance cameras throughout the house, and why he
would have only opened the door for a family friend like Quan. Neither the prosecutor nor defense counsel
informed the court that Nguyen knew the amount of the alleged debt. The court admitted the evidence over Quan’s
hearsay objection.

During
opening statements, the prosecutor informed the jury the evidence would show
the murders occurred while Quan was attempting to collect an $80,000 debt, and
that Quan took Peter to Le’s home to discuss why Le was not making his
“payments on the 80,000 dollar loan.”

Quan’s
attorney countered the evidence would show Quan had borrowed the money from
Peter to loan to Le, and while he took Peter to Le’s home, he had no idea Peter
planned to kill Le. Quan’s lawyer also
attacked the state’s theory, asserting it was unlikely the murders occurred
over $80,000 because the $60,000 in Krugerrands would have “[gone] a long
[way]” to settling the debt, and Le would have given them to Quan to save his
wife and son. In other words, “Something
else was happening there that night.”

Nguyen
testified on the second day of trial that Le said he “owed people money” and
“was stressed because they were after his wife and children.” The prosecutor asked Nguyen if Le admitted
having “ripped off a big guy or a big drug dealer for about $300,000?” Nguyen answered, “Yes.” Quan did not object to this question or
several others concerning Le’s statements about the incident.

After
cross-examination, defense counsel objected at sidebar that the “$300,000 was
not part of the court’s” pretrial ruling.
She asserted she and the prosecutor had addressed the evidence
previously and the prosecutor stated he was not going to mention it. She explained, “if you have someone who is
owed $80,000 and there is $66,000 in gold Krugerrands, that is one thing, but
if you have someone owed $300,000 and they are killed, that is quite another.”

The
prosecutor responded that when he told defense counsel in chambers he was going
to move to admit Nguyen’s testimony concerning Le’s statement, she replied “oh,
great, that means I can get into the $300,000 drug ripoff.” The prosecutor responded to her if “you want
to get into that, great. And she looked
me in the eye and said, oh, you bet I am going to get into that.” So the prosecutor asked Nguyen about the drug
ripoff to further explain that Le “was on guard, he was paranoid . . . .” The prosecutor noted this information was in
the police reports given to defense counsel.

Defense
counsel denied telling the prosecutor she intended to ask Nguyen about the
$300,000 Quan told him he stole from a drug dealer. Rather, she and the prosecutor had been
“taunting” each other about Nguyen’s testimony, but she denied wanting that
statement in evidence. She noted Le’s
statement, if offered for the truth, was hearsay. The prosecutor stated “[we] have a total
opposite, polar opposite recollection of what [defense counsel] said.”

The
court remarked Le’s statement concerning the $300,000 theft was not part of the
pretrial ruling and there was no relevant nonhearsay purpose for the
evidence. The court denied Quan’s motion
for a mistrial and instructed the jury to disregard the testimony as
follows: “Before we do go home, there
was some – and you can well imagine a lot of stuff that this witness [Nguyen]
just said came flying through, wasn’t supposed to come in, things were flying
fast and furious, so I am going to tell you to disregard certain portions of
his testimony. [¶] There was a discussion, there was some
testimony that this witness was attributing some statements to [Le], that he
owed money and they had ripped off a big guy, a big drug dealer for
$300,000. They set it up to look like a
drug deal. All that is stricken,
disregard it, do not consider it for any purpose. It is otherwise inadmissible hearsay, and
should not have come in, so you are ordered to disregard that.”

Quan
argues the prosecution’s “surprise introduction of evidence that Le owed
$300,000 and the trial court’s refusal to grant a mistrial violated [his] right
to due process and the effective assistance of counsel. At the point when this information was
introduced, defense counsel had already committed defendant to a defense
premised on evidence that Le only owed $80,000.
Necessarily, that theory was the product of what defense counsel knew
prior to trial and in line with the evidence offered in the state’s pre-trial
offer of proof. Under the facts of this
case, the court’s admonition could not cure the harm and reversal is required.”

Quan
bases his theory of “state interference” with the right to counsel on >Strickland v. Washington (1984) 466 U.S.
668, 686, which held that “[g]overnment violates the right to effective assistance
when it interferes in certain ways with the ability of counsel to make
independent decisions about how to conduct the defense.” (See also Geders
v. United States (1976) 425 U.S. 80 [bar on attorney-client consultation
during overnight recess]; Herring v. New
York (1975) 422 U.S. 853 [court barred summation at bench trial]name="sp_708_2064">;name="citeas((Cite_as:_466_U.S._668,_*686,_104"> Brooks v. Tennessee (1972) 406 U.S. 605, 612–613 [requirement that
defendant be first defense witness]; Ferguson
v. State of Georgia (1961) 365 U.S. 570, 593–596 [bar on direct examination
of defendant].) Quan asserts, “where
trial counsel makes critical tactical decisions based on an awareness of the
charges against a client and the available defenses, and the state or trial
court undercuts the basis for those tactical decisions by injecting new
theories of culpability or eliminating defenses, the defendant has been denied
his right to the meaningful assistance of counsel.”

Quan
bases his argument on the assumption the prosecutor deceived defense counsel
about his plans to introduce evidence Quan owed $300,000 to a drug dealer he
“ripped off.” The trial court, however,
did not come to this conclusion, apparently viewing the dispute about the
introduction of this evidence as a misunderstanding between counsel. Substantial evidence supports the court’s
implicit finding, and we are in no position to second-guess this determination.href="#_ftn2" name="_ftnref2" title="">[2]

Defense
counsel was aware of the information about the $300,000 figure because it was
described in the police reports she received before trial. Absent a prosecutorial agreement or court
ruling to exclude the evidence, counsel must assume the prosecutor might seek
to elicit Nguyen’s testimony on this point.
Any misunderstanding between the prosecutor and counsel could have been
avoided had counsel moved to exclude this specific evidence or informed the
court of the prosecutor’s purported agreement, but she did not do so. Under these circumstances, the prosecutor did
not infringe Quan’s constitutional rights because defense counsel knew before
trial that Nguyen claimed he told him the debt was $300,000, and based on his
conversations with defense counsel, he did not agree to withhold evidence about
the $300,000 theft from a drug dealer.

We
also disagree with Quan’s contention the trial court violated his due process
rights when it denied his mistrial motion. A court must grant a mistrial if the
defendant’s right to a fair trial has been irreparably damaged. (People
v. Dement (2011) 53 Cal.4th 1, 40.)
The trial court has broad discretion in determining a particular
incident is incurably prejudicial. (>Id. at pp. 39-40.)

The
trial court here determined an admonition would suffice and directed the jury
to disregard Nguyen’s reference to Le’s $300,000 comment, explaining that the
evidence was stricken because it was inadmissible hearsay. A jury is presumed to follow an admonition to
disregard evidence that had been stricken, and we must presume it did so in the
absence of contrary evidence. (>People v. Cruz (2001) 93 Cal.App.4th 69,
73 [appellate court must presume the jury “‘meticulously followed the
instructions given’”].) There is nothing
in the record to rebut the presumption or infer the jury ignored the court’s admonition. The court acted reasonably in concluding
these remedial steps would cure any potential prejudice. Quan therefore has failed to carry his burden
on appeal to show any violation of his constitutional
rights.







C. CALCRIM
No. 337

Quan
next contends the trial court erred in providing a version of CALCRIM No.
337. The instruction provided in
relevant part: “When . . . Nguyen
testified, he was in custody. The fact
that a witness is in custody does not by itself make a witness more or less
believable. Evaluate the witness’s
testimony according to the instructions I have given you.” The Use Note to CALCRIM No. 337 provides,
“For an in-custody witness, give this instruction on request.” The clerk’s transcript reflects the court
provided the instruction on the court’s motion.

Quan
argues the instruction directed the jury not to consider Nguyen’s credibility,
which was a crucial issue in the case.
Quan contends the instruction undermined his defense that Nguyen had
lied because the prosecution had agreed to place Nguyen in a witness protection
program. Quan cites cases where the
trial court erred in denying a criminal defendant the right to present a
defense and to have the jury determine material issues, and where instructions
interfered with a jury’s ability to consider favorable defense evidence.

An
instruction is not considered in isolation, but in the context of the court’s
entire charge to the jury. (People v.
Castillo (1997) 16 Cal.4th 1009, 1016.) To succeed on a claim of instructional error,
a defendant must show that “there is ‘a reasonable likelihood’ the jury
understood the instructions as the defendant asserts,” considering “the
specific language challenged, the instructions as a whole and the jury’s
findings. [Citations.]” (People v.
Cain (1995) 10 Cal.4th 1, 36; see also Estelle v. McGuire (1991)
502 U.S. 62, 72.)

There
was no apparent reason to shield Nguyen’s testimony from any adverse inference
that might arise from his custodial status.
On the other hand, Quan cites nothing suggesting custody status by
itself is a relevant factor in
assessing credibility. The instruction
did not enhance Nguyen’s credibility by merely mentioning his custody
status. The plain language of the
instruction shows it to be entirely neutral on that issue. The instruction advised the jury to evaluate
the witness’s testimony according to other instructions provided. In that vein, the court instructed with
CALCRIM No. 226 that in assessing witness credibility it could consider
“anything that reasonably tends to prove or disprove the truth or accuracy of
that testimony.” CALCRIM No. 226 listed
several factors to evaluate credibility, including the witness’s bias or
personal interest in the result, and whether the witness had been convicted of a
felony or engaged in other conduct reflecting on the witness’s
believability. The court also provided
CALCRIM No. 316 addressing a witness’s commission of a felony or other
misconduct. CALCRIM No. 337 did not
preclude the jury from considering Nguyen’s potential bias in favor of the
prosecution based on an arrangement to relocate him after he served his prison
sentence for criminal threats against his girlfriend. We conclude there is no reasonable likelihood
the jury interpreted the instruction in the manner urged by Quan. Accordingly, defendant’s substantial rights
were not affected by CALCRIM No. 337 and his claim of instructional error fails.name=F010102020991968> (See Boyde
v. California (1990) 494 U.S. 370, 378; People v. Kelly (1992)
1 Cal.4th 495, 525.)

D. CALCRIM
No. 359

Finally,
Quan contends the trial court erred by providing the following italicized
portion of the corpus delicti instruction, CALCRIM No. 359: “The defendant may not be convicted of any
crime based on his out-of-court statements alone. You may only rely on the defendant’s
out-of-court statements to convict him if you conclude that other evidence
shows that the charged crime was committed.
[¶] That other evidence may be slight and need only be enough to support
a reasonable inference that a crime was committed. [¶] The identity of the person who committed
the crime and the degree of the crime may
be proved by the defendant’s statements alone. [¶] You may not convict the defendant unless
the People have proved his guilt beyond a reasonable doubt.” (Italics added.) The clerk’s transcript reflects the
prosecution requested the instruction, to which Quan did not object.

As
noted above, a claim of instructional error is evaluated by considering the
instructions as a whole in determining whether there is a reasonable likelihood
the jury understood the instruction in a manner that violated the defendant’s
rights. (People v. Musselwhite (1998)
17 Cal.4th 1216, 1248.) Instructions are
ambiguous or misleading if, in the context of the entire charge, there is a
reasonable likelihood that the jury misconstrued or misapplied its words. (People v. Campos (2007) 156
Cal.App.4th 1228, 1237.)

Under
the corpus delicti rule, every conviction must be supported by at least slight
evidence of the crime aside from or in addition to the defendant’s
extrajudicial statements, and the jury must be so instructed. (People v. Alvarez (2002) 27
Cal.4th 1161, 1165.) The purpose of the
rule is to ensure a person is not falsely convicted of a crime that never
occurred. (Id. at p.
1169.) The rule does not require
independent evidence of every physical act constituting an element of an
offense, so long as there is some slight or prima facie showing of injury,
loss, or harm by a criminal agency. (>Ibid.)
If the necessary quantum of independent evidence is present, the jury
may consider the defendant’s extrajudicial statements for their full value to
strengthen the case on all issues. (>Id. at p. 1171.) Proof of the corpus delicti does not require
proof of the degree of a crime. (>People v. Martinez (1994) 26 Cal.App.4th
1098, 1104; People v. Miller (1951)
37 Cal.2d 801, 806 [in a prosecution for homicide in the course of robbery, it
is enough for the prosecution to prove the corpus delicti of homicide; no need
to prove the corpus delicti of the robbery, which merely relates to the degree
of the homicide]; People v. Cantrell
(1973) 8 Cal.3d 672, 680 [felony-murder; prosecution need not establish corpus
delicti of underlying felony before introducing defendant’s extrajudicial
statements]; Ureta v. Superior Court
(1962) 199 Cal.App.2d 672, 676 [malice aforethought not part of the corpus
delicti in a prosecution for murder].)

Although
CALCRIM No. 359 correctly states the law
(People v. Reyes (2007) 151
Cal.App.4th 1491, 1498), Quan argues the instruction lessened the state’s
burden of proof on the first degree murder counts because his “statements did
not offer any evidence to show the
degree of the crimes. Telling the jury
it could rely entirely on [his]
statements to infer the degree of these three crimes directly undercut the
state’s burden to prove the degree of these charges beyond a reasonable doubt.”

We
reject Quan’s argument that CALCRIM No. 359
reduced the prosecution’s burden of proof because it informed the jury that it
may consider a defendant’s extrajudicial statements alone to set the degree of
the crime. CALCRIM No. 359 did >not instruct the jury it could infer the
degree of the murders relying only on
Quan’s statements. The portion of the
instruction Quan finds objectionable merely informs the jury the corpus delicti
rule does not preclude reliance on the defendant’s out-of-court statements to
prove the degree of the crime beyond a reasonable doubt. If Quan’s statements provided no evidence of
the degree of the murders, then the jury must have looked to other evidence
establishing premeditation, torture, or felony murder (including Le’s
indebtedness to Quan and gang figures, and the vicious injuries suffered by the
victims). The trial court instructed the
jury with CALCRIM No. 220, which defines reasonable doubt, informs the jury
that it must consider all the evidence, and instructs the jury the defendant is
entitled to an acquittal unless the evidence proves him guilty beyond a
reasonable doubt. Further, name="SR;7043">CALCRIM No. name="SR;7045">359 advised
the jury it could “not convict the defendant unless the People have proven [his
guilt] beyond a reasonable doubt.”
CALCRIM No. 521 told jurors they must decide whether defendant committed
first degree murder, but could not find Quan guilty of first degree murder
unless all the jurors agreed the prosecution proved he committed first degree
murder by premeditation and deliberation, torture, or under a felony murder
theory, and “The People have the burden of proving beyond a reasonable doubt
that the killing was first degree murder rather than second degree
murder.” Reasonable jurors would have
understood from the entirety of the charge that the prosecution was required to
prove the degree of the crime beyond a reasonable doubt after examination of
all the evidence. CALCRIM No. 359 was not misleading, and it did not
reduce the prosecution’s burden of proof concerning the degree of the murder.

E. >Cumulative Error

Because
we find no merit in Quan’s evidentiary or instructional challenges, his name="SR;3541">cumulativename="SR;3542"> error argument also fails. Absent errors to cumulate, thename="SR;3552"> cumulativename="SR;3553"> error doctrine does not apply. (People v. Staten (2000) 24
Cal.4th 434, 464.)























name=B010102019071028>III

Disposition

The
judgment is affirmed.







___________________________

ARONSON,
J.





WE CONCUR:





___________________________

RYLAARSDAM,
ACTING P.J.





___________________________

MOORE, J.