“Any claim of ineffective assistance based 13 on evidence not in the trial record must be made in a habeas corpus petition.”
How later courts described this case
- “Any claim of ineffective assistance based 13 on evidence not in the trial record must be made in a habeas corpus petition.”
Written by the judges who cited it.
The opinion
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ANH THE DUONG,
Defendant and Appellant.
S114228
Los Angeles County Superior Court
BA240170
August 10, 2020
Justice Corrigan authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Liu, Cuéllar,
Kruger, and Groban concurred.
PEOPLE v. DUONG
S114228
Opinion of the Court by Corrigan, J.
Defendant Anh The Duong shot and killed four nightclub
patrons after an argument. He was convicted of three counts of
first degree and one count of second degree murder with a
multiple murder special circumstance and various gun use
enhancements.1 The jury returned a death verdict.2 We affirm.
I. BACKGROUND
A. Guilt Phase
1. Prosecution Evidence
On the evening of May 5, 1999, Thi Van Le went to the
International Club in El Monte to attend a birthday party for
Khiet Diep. The party of at least seven sat at a table near the
restroom. Diep belonged to the Wah Ching gang, and Anthony
Tran, Hoa Truong, and defendant were Lao Family gang
members. The other three attendees were Le, Duc Nguyen, and
a man named “Khuong.” None of the latter three were identified
as gang members. At some point, Le went to the restroom and
heard Tran arguing with three or four Asian men. Minh Tram,
1
Penal Code sections 187, subdivision (a), 189, 190.2,
subdivision (a)(3), 12022.5, subdivision (a), 12022.53,
subdivisions (b)–(d).
2
The trial court stayed sentence on the various
enhancements.
PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
a member of the Black Dragon gang, eventually joined the
argument.
After this encounter, defendant went toward the bar area
where Tram and others sat in a booth. Ten to 15 minutes after
the argument, Le saw defendant shoot into the booth with a
handgun. John Bui, a co-owner of the club, stood up from the
booth and grabbed at defendant, who evaded Bui and continued
firing between nine to 13 shots, which took 10 to 15 seconds. Le
did not see anyone shoot at defendant. Tran testified that he
did not see anyone threaten defendant or their group.
Bui testified he saw an argument between two groups,
which included defendant and Minh Tram. He told the men to
stop arguing and, in an effort to diffuse the situation, he brought
Tram to his booth. Defendant and his group returned to the
table near the restroom. Those in Bui’s booth included Thi Hoa
Tang, Lan Thi Dang and her sister, Robert Norman, and others.
Bui heard a loud sound and saw defendant shooting at the
group. Bui, who was sitting outermost in the booth, tried to grab
defendant but fell to the ground as defendant continued
shooting. Bui did not see anyone threaten defendant or point a
gun at him. Bui reviewed a photospread and identified
defendant as the shooter but was afraid to confirm his selection.
Bui was later a reluctant grand jury witness.
Tram, Tang, and Norman were pronounced dead at the
scene. Dang died at the hospital. Tram had been shot once in
the back of the head. Three other shots struck his left side, arm,
and chest. Tram likely lost consciousness after the first shot.
His wounds were consistent with the shooter firing downward
from a position slightly behind the victim. Tang was shot four
times, including once in the temple. Norman was shot once in
2
PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
the back, which was consistent with him being struck as he
attempted to crawl away from the booth. Dang was also struck
once by a bullet that pierced her arm, then hit her lung, heart,
and liver. None of the various wounds appeared to have been
caused by rounds that ricocheted off of the booth table. There
was no evidence that a bullet had pierced one victim then
entered another.
Police recovered 10 expended shell casings, all fired from
a .45-caliber semi-automatic handgun. Nine bullets were also
recovered, including two from Tang’s body and one from Dang’s.
All bullets and casings came from the same gun. A .40-caliber
handgun fell out of Tram’s back waistband as his body was
moved. No evidence suggested the gun had been fired. A
firearms expert opined that the trajectory of the bullets was
consistent with the shooter firing into the booth from the front
at a downward angle.
The day after the shooting, Diep went to Khuong’s house
and retrieved a videotape of the events. He eventually burned
the tape in a backyard barbecue.
Le had been working as a confidential informant after a
drug arrest. On the night of the shooting, he was looking for a
murder suspect in an unrelated case. He had previously been
paid $300 for information but was not being paid at the time of
the shooting. He had no agreement for a disposition of his drug
case.
Cellular phone records showed numerous calls the
morning after the shooting between Tran, Diep, Nguyen, and a
phone registered to defendant’s girlfriend.
Defendant was arrested in July 2001 after a lengthy
investigation. The search of a Ford Expedition revealed
3
PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
identification in the name of Long Hoang but bearing
defendant’s photo. A loaded .45-caliber handgun, along with
credit cards in the names of Hoang and Christine Chen, were
also recovered. The gun had not been used in the shooting. At
the time of the murders, defendant lived with his girlfriend
Cindy Hoang. A search of their residence revealed another .45-
caliber handgun belonging to defendant, who worked at a gun
range and was proficient with firearms.
2. Defense Evidence
Khiet Diep, a manager at the International Club, initially
testified he did not see any fights or arguments on the night in
question. He ran from the club when he heard, but did not see,
the shooting. He denied telling police otherwise. He did not
view or burn a videotape. He did not remember several calls
made to his cell phone after the shooting. On cross-examination,
he identified defendant as the shooter and admitted hearing an
argument in the restroom before the shooting. He denied telling
police that defendant and Tram were arguing over a woman.
Hoa Truong testified he was at the club. Before the
shooting, he saw a man in a trench coat walk in and out.
Someone told Truong the man was armed. As Truong was
preparing to leave, he heard gunshots and saw defendant and
the man in the trench coat struggling over something. He
denied telling a defense investigator that defendant could not
have been the shooter because defendant ran out of the club
ahead of him. Shortly after the shooting, Truong and defendant
fled to Austin, Texas. A defense investigator testified regarding
his interview with Truong.
Los Angeles County Sheriff’s Detective Christine Carns
related various interviews conducted during her investigation.
4
PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
Bui said he grabbed the shooter’s arm and the shooting
continued as Bui fell to the ground. Tram told Bui he and the
shooter argued about a shooting at a different nightclub called
Passions. In his interview, Le said Tram “was walking around
’cuz he packing,” which Carns interpreted to mean Le believed
Tram had a gun. Le also told police that Diep approached
defendant’s table after the argument and defendant asked in
Chinese, “Do you want me to do him now?” which Le interpreted
to mean shoot the victim.3 Diep told police defendant and Tram
argued “over a girl from another bar named Passions.”
B. Penalty Phase
The prosecution presented evidence of defendant’s
involvement in four uncharged robbery-related shootings, two
before and two after the murders. Thien Tang owned a
supermarket in San Jose. On May 3, 1997, while bringing
$300,000 in cash from a bank to the market, two men accosted
him and demanded the money. Defendant shot Tang in the leg
and took the bag of cash. The assailants fled, but a market
employee, Chau Quach, gave chase. Defendant fatally shot
Quach. Defendant admitted the crime to his girlfriend Christine
Chen, and Tang identified defendant in a lineup after the
robbery.
On August 28, 1998, three masked men with guns tried to
enter the property of Wintec Industries in Fremont. Security
guard Ted Garcia was shot but survived. Employee Hsu Pin
Tsai was killed as he tried to drive away. The men escaped in a
white van. The van was later stopped but defendant was not
3
Le testified during the prosecution’s case that he heard
defendant say, “What do you want?” to which Diep replied,
“[W]e’ll see.”
5
PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
with the four men inside. The van contained diagrams of the
Wintec facility bearing defendant’s fingerprints. The diagrams
showed the location of various expensive computer parts. A
phone associated with defendant was in constant contact with
the perpetrators around the time of the incident. Defendant
later confessed his involvement to Chen.
Chen testified that she and defendant began “casing” the
Traditional Jewelers store in Newport Beach where defendant
and others planned to steal watches. On January 16, 2001,
defendant and three other men prepared for the robbery at the
apartment defendant shared with Chen. Defendant was armed
with an “AK.” That evening, three armed masked men ran
toward the store. Two men fired at security guard Rafael
Gomez, while a third man stood near a planter. Gomez returned
fire but was shot in the chest and arm. Glass fragments lodged
in his eye and head. Gomez survived but required four
surgeries. One of the men fired repeatedly into the front of the
store, but they failed to gain entry. The store contained 1,200
watches worth between five and six million dollars. Defendant
and the others went to the apartment, where defendant told
Chen they had “shot up” the store but “couldn’t get anything.”
Chen suggested they should rob another jewelry store, so
she, defendant, and others drove to Cupertino to case the shop.
Chen was to watch the business until she saw the security guard
go inside, and then alert the others. Two weeks later, they
executed the plan. Defendant and three others entered wearing
dark clothing. Inside, they killed security guard Joseph
Cambosa and took $53,000 worth of watches.
Chen testified under a grant of use immunity. Defendant
told Chen he supported himself through gambling and armed
6
PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
robberies. He kept a cache of weapons at their apartment so he
could supply guns for his crimes. Defendant explained that he
would wear a mask and dark clothes and only stay at the
robbery site for 15 to 20 seconds.
Robert Norman’s mother and Lan Dang’s father and sister
gave victim impact testimony.
The defense presented no evidence.
II. DISCUSSION
A. Guilt Phase Issues
1. Venue Change
Defendant challenges the denial of his venue change
motion.4 There was no error.
a. Background
The charged murders happened in May 1999. Arrested
more than two years later, defendant sought to change venue,
arguing he could not receive a fair trial in Los Angeles County.5
Defendant submitted printouts of eight news articles. One Los
Angeles Times report immediately after the shooting described
the incident and identified the victims but did not mention
defendant. Another Times article in December 1999 said
defendant was wanted for the shooting, described as “an
apparent gang-related attack.” Three articles were published
4
Defendant asserts a violation of his rights to due process,
equal protection, a fair and impartial jury, and a reliable penalty
determination under the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the federal Constitution and analogous state
constitutional provisions.
5
Defendant also moved for a protective gag order. That
motion is not at issue here.
7
PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
on July 18, 2001. They described the shooting and defendant’s
arrest, also reporting he was a suspect in two previous robbery
shootings in San Jose and Fremont. Those articles appeared in
the Los Angeles Times, the San Francisco Chronicle, and were
carried by the Associated Press. A September 2001 Los Angeles
Times article reported on defendant’s suicide attempt and
repeated he was suspected of killing six people. Two other
articles reported on trial proceedings. In July 2002, the San
Gabriel Valley Tribune covered a defense motion to discover the
names of two of the San Jose witnesses who were in a witness
protection program. The Inland Valley Daily Bulletin reported
in September 2002 that defendant’s Faretta (Faretta v.
California (1975) 422 U.S. 806) motion had been denied.
Defense counsel also observed the shooting was featured in a
single, May 2000 airing of an episode of America’s Most Wanted,
which named defendant as a suspect. The episode aired only
once, to a national audience.
The court deferred ruling on venue, noting that the jury
questionnaire addressed pretrial publicity. The court explained,
“what I want to do is see if it really manifests itself in terms of
the pool that we have at the moment.” The court asked how
many prospective jurors reported in questionnaires that they
had learned something about the case. Defense counsel
responded four or five had done so. The court denied the motion
but said it would revisit the ruling “if the numbers are
substantially different” upon further questionnaire review.
The next day, the court individually questioned three
prospective jurors who said that they had heard something
about the case. Prospective Juror No. 6274 had read an article
in the San Gabriel Valley Tribune about the beginning of jury
selection. The court granted the defense challenge for cause
8
PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
because “she read the entire article.” Prospective Juror No.
1291 recalled “hearing something about [the case] a couple years
ago” on the television news but had no more specific recollection.
Prospective Juror No. 5230 remembered reading about the case
“right after it happened” because she used to live in El Monte
and had a business there. The article reported some people were
killed and gave Asian names she did not recognize. She did not
recall any article “talking about the perpetrator.” The court
denied defendant’s challenge for cause of these two prospective
jurors. They were empaneled as alternates6 and accepted by the
defense.
b. The Court Properly Denied the Venue Change
Motion
“ ‘On appeal from the denial of a change of venue, we
accept the trial court’s factual findings where supported by
substantial evidence, but we review independently the court’s
ultimate determination whether it was reasonably likely the
defendant could receive a fair trial in the county. In deciding
whether to change venue, the trial court, and this court in its
independent review, considers several factors, including the
nature and gravity of the offense, the nature and extent of the
media coverage, the size of the community, the defendant’s
status within the community, and the victim’s prominence. On
appeal, a defendant . . . must show both error and prejudice,
that is, that it was not reasonably likely the defendant could
receive a fair trial at the time of the motion, and that it is
reasonably likely he did not in fact receive a fair trial.’ ” (People
v. Rices (2017) 4 Cal.5th 49, 72 (Rices), quoting People v.
6
Neither alternate served on the jury.
9
PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
Rountree (2013) 56 Cal.4th 823, 837; see Pen. Code, § 1033,
subd. (a).)
Defendant failed to show a reasonable likelihood he could
not receive a fair trial in Los Angeles County. A capital murder
charge involving the killing of four people “weighs in favor of a
change of venue but is not itself dispositive.” (People v.
Rountree, supra, 56 Cal.4th at p. 837.) “Indeed, on numerous
occasions we have upheld the denial of change of venue motions
in cases involving multiple murders.” (People v. Farley (2009)
46 Cal.4th 1053, 1083.)
The media coverage here was hardly “sensational and
extensive.” (People v. Leonard (2007) 40 Cal.4th 1370, 1395
(Leonard).) Defendant cited only eight print articles about the
case published over a period of more than three years. One of
the articles appeared in the San Francisco Chronicle, an out-of-
market publication not relevant to local publicity. Another was
authored by the Associated Press, but there was no evidence any
publication carried the story. Of the six remaining articles, one
appeared immediately after the shooting and did not name
defendant; another reported seven months later he was named
a suspect; a third covered his arrest more than two years after
the shooting; and a fourth recounted his suicide attempt. The
remaining two articles concerned proceedings just before jury
selection.
We have affirmed venue change denials in cases with far
more publicity. For example, in People v. Coffman and Marlow
(2004) 34 Cal.4th 1, “the defense presented more than 150
articles from regional newspapers and various videos of
television coverage of the case.” (Id. at p. 44.) The defendant
in Leonard “cited 556 television segments on the killings that
10
PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
appeared on local stations, as well as 130 newspaper articles,
most of them in . . . the area’s largest newspaper. Many of the
television news segments and newspaper articles were the lead
story. As a result, public awareness of the case was very high.”
(Leonard, supra, 40 Cal.4th at pp. 1395–1396.) People v. Prince
(2007) 40 Cal.4th 1179 (Prince), cited by defendant, involved “a
series of six similar murders occur[ring] in a community over a
period of approximately one year without a culprit being quickly
identified.” (Id. at p. 1210.) There, “the defense proffered
evidence of the more than 270 newspaper articles that had
appeared concerning the crimes, the criminal investigation,
defendant’s eventual arrest in Alabama and extradition, and the
preliminary examination.” (Ibid.) “There was evidence
suggesting that television coverage was similar in extent.”
(Ibid.) Despite the “intense” publicity (id. at p. 1212), Prince
affirmed the denial of the defendant’s venue motion, noting in
part that much of the publicity occurred over a two-year period
and predated jury selection by a year. “The passage of time
ordinarily blunts the prejudicial impact of widespread
publicity.” (Id. at p. 1214; see Leonard, at p. 1396.) This is even
more true in a case like this one.
Defendant argues that “a suspect at large for a long period
of time can create a sense of fear in a community.” While
possible, the argument is speculative here. Neither prearrest
article mentioned any community fear. Unlike in Prince, the
killings were not “ ‘serial’ ” killings but part of a single incident.
(Prince, supra, 40 Cal.4th at p. 1211.) Defendant was identified
as a suspect within a few months. (Cf. Id. at pp. 1210–1211.)
The record confirms the lack of significant publicity. The
jury questionnaire asked, “Do you know anything, or have you
read or heard anything, about the case?” Of the 142 prospective
11
PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
jurors, only 10 reported any exposure to coverage of the case.7
None of the 12 selected jurors responded affirmatively, and only
two of five alternate jurors did so. This contrasts with Prince,
in which “a high percentage of the prospective jurors and 12 of
the 13 jurors who actually served at trial . . . had been exposed
to the publicity.” (Prince, supra, 40 Cal.4th at p. 1215.) We
nevertheless affirmed the denial of a venue change because “the
jurors’ responses to the juror questionnaire and voir dire did not
disclose any prejudgment or emotional bias.” (Ibid.) Other
cases have upheld a denial even when “a large percentage of the
venire had heard of the case.” (People v. Harris (2013) 57
Cal.4th 804, 825; see People v. Suff (2014) 58 Cal.4th 1013, 1049;
People v. Sanders (1995) 11 Cal.4th 475, 505.)
As to the nature of coverage, defendant argues some
details prejudiced him, including a description of the shooting
as gang-related, defendant’s involvement in unrelated killings
and prosecutions, and certain details about the victims. He
complains that coverage of his suicide attempt suggested a
consciousness of guilt, and reports that he sought to represent
himself suggested a conflict with defense counsel. He also
claims coverage of his attempt to discover the identity of certain
witnesses in an unrelated case suggested those witnesses had
reason to fear him. “But while the local coverage disclosed the
7
There were two other affirmative responses, but they were
not attributable to pretrial publicity. One person reported he
heard about the incident because his wife had previously worked
for the owner of the International Club. The other prospective
juror responded with the non sequitur, “You have to have 12
people for the case.” Six other responses indicated they did not
know or were not sure whether they had heard something about
the case.
12
PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
brutal details of the crimes, and elicited their effects on the
victims and their families, the reporting was essentially factual,
not sensationalized.” (People v. Zambrano (2007) 41 Cal.4th
1082, 1126.) These facts are different from Leonard, where “the
media consistently described the perpetrator, both before and
after defendant became a suspect, as the ‘Thrill Killer,’ a highly
pejorative moniker that was potentially prejudicial to
defendant.” (Leonard, supra, 40 Cal.4th at p. 1395.) Further,
the “vast bulk of the local coverage was clustered around the
times of significant events in the case.” (Zambrano, at p. 1126.)
Finally, although the case was covered once on America’s
Most Wanted, the episode aired more than two years before trial
began. “Moreover, as America’s Most Wanted was broadcast
nationally, ‘a change of venue could not be expected to dilute its
prejudicial effect.’ ” (People v. McCurdy (2014) 59 Cal.4th 1063,
1078.) The nature and extent of media coverage weighed
against a venue change.
“The size of the community (Los Angeles County, the
largest and most populous in California) was a factor weighing
heavily against a change of venue.” (People v. Williams (1997)
16 Cal.4th 635, 655.) “This is significant because the
‘adversities of publicity are considerably offset if trial is
conducted in a populous metropolitan area.’ [Citation.] That
the populous metropolitan character of the community
dissipated the impact of pretrial publicity in this case was made
clear on voir dire.” (People v. Harris (1981) 28 Cal.3d 935, 949.)
Defendant makes no argument regarding this factor.
He does argue that, because he lived in Orange County,
his status as a nonresident and “a reputed gang member who
was captured only after a national manhunt” weighed in favor
13
PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
of a venue change. Similarly, defendant claims the sympathetic
media coverage of the victims elevated their status in the
community. These claims lack merit. As to status, “there is no
indication that either defendant or his victims were prominent
in the community.” (People v. Howard (1992) 1 Cal.4th 1132,
1167.) “As a recreational visitor to the county, defendant was
relatively anonymous in the community.” (People v. Adcox
(1988) 47 Cal.3d 207, 234.) Any notoriety he gained from his
national television appearance would either have faded with
time or followed him to any county.
“ ‘When pretrial publicity is at issue, “primary reliance on
the judgment of the trial court makes [especially] good sense”
because the judge “sits in the locale where the publicity is said
to have had its effect” and may base [the] evaluation on [the
judge’s] “own perception of the depth and extent of news stories
that might influence a juror.” ’ ” (People v. Famalaro (2011) 52
Cal.4th 1, 24, quoting Skilling v. United States (2010) 561 U.S.
358, 386.) Only a single factor, the nature and gravity of the
offense, weighed in favor of a venue change. But that factor
would apply no matter where the case was tried. Defendant fails
to show the court improperly denied a venue change at the time
of the motion.
He also fails to show prejudice. As noted, “[o]n appeal, a
defendant challenging a trial court’s denial of a motion for
change of venue must show both error and prejudice: that is,
that at the time of the motion it was reasonably likely that a fair
trial could not be had in the county, and that it was reasonably
likely that a fair trial was not had.” (People v. Davis (2009) 46
Cal.4th 539, 578.) None appears on this record. Although
defendant suggests “extensive media coverage continued
throughout [his] trial,” he cites only a single article from
14
PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
January 8, 2003, in the San Gabriel Valley Tribune, published
during jury selection. The court itself alerted the parties to the
story. None of the sitting jurors indicated they had previously
heard anything about the case. “ ‘[W]e are confident the guilt
and penalty verdicts were due to the evidence presented at trial
and not to a biased jury or the failure to change venue.’ ” (People
v. Avila (2014) 59 Cal.4th 496, 513; see Rices, supra, 4 Cal.5th
at pp. 74–75.)
2. Suppression Motion
Defendant contends the trial court improperly denied his
motion to suppress items discovered during a warrantless
search of a Ford Expedition he drove before his arrest.8 Any
possible error was not prejudicial.
a. Background
Between 4:45 and 5:00 p.m. on July 16, 2001, defendant
was arrested on a basketball court at a gym in Costa Mesa.
Officers recovered several items at the court, including a
membership card in Long Hoang’s name, a parking lot ticket
with a time stamp of 4:23 p.m., a cell phone, and a Ford key. An
officer took the key and tried it on various vehicles in the
parking lot, where it opened a Ford Expedition registered to
8
See Penal Code section 1538.5, subdivision (a)(1)(A).
Defendant claims he was denied due process and his rights to be
free from unreasonable searches and arbitrary imposition of the
death penalty in violation of the Fourth, Sixth, Eighth, and
Fourteenth Amendments to the federal Constitution and their
state counterparts.
15
PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
Timothy Mukasa.9 The Expedition was towed to a police
department lot and an inventory search was conducted six hours
after defendant’s arrest. A Colt .45-caliber handgun was found
in the center console, as well as a check and the credit cards
previously described. (See ante, at p. 5.) The detective who
conducted the search testified it was performed pursuant to a
standard policy for impound searches. Three police agencies
and 30 officers were involved that day, and officers worked
“continually on this case” during the six-hour time span. They
also secured and searched defendant’s residence and
coordinated with other agencies regarding defendant’s
outstanding warrants. Defendant’s girlfriend Chen and their
roommate were also arrested. The trial court denied the motion,
concluding the Expedition was properly impounded and
inventoried.
b. Any Possible Error Was Not Prejudicial
A warrantless search is presumed to be unreasonable, and
the prosecution must demonstrate a legal justification for the
action. The standard of appellate review is well established. We
defer to the trial court’s factual findings if supported by
substantial evidence. In determining whether the search or
seizure was reasonable, we exercise our independent judgment.
(See People v. Suff, supra, 58 Cal.4th at p. 1053.)
9
There was some confusion about when this occurred. The
officer who found the Expedition initially testified that he was
given the Ford key at 11:00 p.m., but later clarified his
testimony was based on a report he had written, and he
currently had no independent recollection of the actual time. It
was later established that the inventory search occurred at
11:00 p.m.
16
PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
“When vehicles are impounded, local police departments
generally follow a routine practice of securing and inventorying
the automobiles’ contents. These procedures developed in
response to three distinct needs: the protection of the owner’s
property while it remains in police custody [citation]; the
protection of the police against claims or disputes over lost or
stolen property [citation]; and the protection of the police from
potential danger [citation]. The practice has been viewed as
essential to respond to incidents of theft or vandalism.” (South
Dakota v. Opperman (1976) 428 U.S. 364, 369; see Cady v.
Dombrowski (1973) 413 U.S. 433, 442–443.) The high court in
Colorado v. Bertine (1987) 479 U.S. 367 upheld the inventory
search of a van after the driver was arrested, citing the same
concerns expressed in Opperman. (Bertine, at pp. 372–374.)
The question is “whether a decision to impound or remove
a vehicle . . . was reasonable under all the circumstances.”
(People v. Shafrir (2010) 183 Cal.App.4th 1238, 1247.) We need
not resolve this question because any possible error was
harmless. Defendant argues the recovered evidence allowed the
prosecutor to paint him as “a bad, dangerous person whose
weapon of choice was a Colt .45.” However, other evidence
already linked him to both gun ownership and use. A warrant
search of defendant’s residence revealed another .45-caliber
handgun. He worked at a gun range and testimony established
his proficiency with firearms. Further, defendant’s identity as
the shooter here was undisputed. With respect to the penalty
phase, defendant suggests the evidence recovered from the
Expedition improperly bolstered Christine Chen’s testimony.
But such evidence was trivial compared to Chen’s extensive
testimony regarding defendant’s involvement in other
shootings, which was corroborated by testimony from the
17
PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
victims of those crimes. Under these circumstances, admission
of evidence from the Expedition was harmless beyond a
reasonable doubt. (See People v. Powell (2018) 6 Cal.5th 136,
159; People v. Lenart (2004) 32 Cal.4th 1107, 1125.)
3. Defendant’s Decision Not To Testify
Defendant contends his decision not to testify was not
knowing, intelligent, and voluntary. Defendant’s contention
fails on this record.10
a. Background
During a break in the prosecution’s guilt phase case, the
prosecutor indicated that if defendant decided to testify, the
prosecutor would “question him about other people he has shot”
because “that would be critical as to intent on the issue of self-
defense.” Defense counsel responded he was not prepared to
argue the issue and defendant had not yet decided whether to
testify. The court declined “to compel the defense to indicate
whether or not [defendant] intends to testify,” noting such
decision is “frequently a question that is directed to a client once
all the evidence is in.” The court observed that whether
impeachment would be proper would depend on the content of
defendant’s testimony and encouraged the parties to further
research the issue. The prosecutor filed a written motion
arguing that, if defendant testified regarding self-defense, the
10
Defendant claims violations of his rights to testify, present
a defense, compulsory and due process, equal protection, a fair
trial, an impartial jury, proof beyond a reasonable doubt, non-
arbitrary and reliable guilt and penalty determinations, and his
right against self-incrimination under the Fourth, Fifth, Sixth,
Eighth, and Fourteenth Amendments to the federal
Constitution and their state counterparts.
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Opinion of the Court by Corrigan, J.
prosecution should be allowed to cross-examine him about, and
present evidence of, four uncharged shootings. The defense filed
an opposition.
The issue arose again during the defense case. Defense
counsel stated he planned to speak with defendant that
afternoon about whether he would testify, and he would make a
decision by the following morning. The prosecutor repeated his
position as to the scope of impeachment. The court was
reluctant to make a ruling “in a vacuum” that “could possibly
have a chilling effect on the decision on the defendant of whether
or not to testify.” The court also commented that “if I make an
erroneous ruling on the admissibility of this, I may create an
issue on appeal that the defendant didn’t exercise his right to
testify because of the erroneous ruling.” The prosecutor
“disagree[d] with the court on the law,” noting “for that to be
preserved the defendant would have had to actually testify.”
The court clarified that it would defer ruling until defendant
testified on direct.
The next day, defense counsel asked to make an offer of
proof as to defendant’s testimony and secure a tentative ruling
before defendant took the stand. Defense counsel reported
defendant would testify he shot Tram in defense of another, then
accidentally shot the other three victims while he and Bui
struggled over the gun. The prosecutor argued he should be
allowed to present evidence of defendant’s four other robbery
shootings. Defense counsel responded that this case was
dissimilar because it was not a robbery and sought an
evidentiary hearing regarding the uncharged incidents. The
court tentatively ruled that if defendant testified consistently
with counsel’s offer of proof, it would allow evidence of two
incidents: the 1997 San Jose robbery where defendant shot two
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Opinion of the Court by Corrigan, J.
people, killing one; and the 1998 Fremont robbery where
defendant shot and killed one person. It would exclude evidence
of the two incidents where defendant’s involvement as the
shooter was in question.
Based on the extant state of the record, the court agreed
to instruct on heat of passion and accident. The following
transpired:
“[Defense counsel]: I would indicate that based on the
court’s ruling of the court [sic] allowing the voluntary
manslaughter as to Mr. Tram and accidental homicide as
to the other three victims, Mr. Duong would — is
indicating that he will not take the witness stand in this
case.
“Again, just to reiterate briefly, it’s the defense position as
stated previously that it’s in violation of Mr. Duong’s 4th,
5th, 6th and 14th Amendment rights of the federal
Constitution and state Constitution to testify in this
matter, and he understands that.[11] However, based on
the court’s ruling of the two uncharged homicides which
are still pending in other jurisdictions, he believes it is in
his best interest not to testify.
11
Counsel was apparently suggesting, consistent with
earlier arguments, that the court’s indication that it would allow
the impeachment evidence improperly infringed on defendant’s
right to testify and present a defense.
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Opinion of the Court by Corrigan, J.
“Mr. Duong, you understand that my advice in this case at
this time is for you not to testify based on the status of the
case at this time?
“The defendant: Yes, now I will not testify.
“[Defense counsel]: And you understand you have a right
to testify no matter what I say, whether I think it’s good
or not good for [you to] testify, you could still testify. [¶]
Do you understand that?
“The defendant: Yes.
“[Defense counsel]: And having that knowledge, what is
your position?
“The defendant: Now I will not testify.”
b. Defendant’s Decision Not To Testify Was
Knowing, Intelligent, and Voluntary
A criminal defendant has the right to testify at trial, “a
right that is the mirror image of the privilege against compelled
self-incrimination and accordingly is of equal dignity.” (People
v. Barnum (2003) 29 Cal.4th 1210, 1223; see People v. Nakahara
(2003) 30 Cal.4th 705, 717.) “The defendant may exercise the
right to testify over the objection of, and contrary to the advice
of, defense counsel. [Citations.] ‘When the decision is whether
to testify . . . at the guilt phase of a capital trial [citation] it is
only in case of an express conflict arising between the defendant
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Opinion of the Court by Corrigan, J.
and counsel that the defendant’s desires must prevail. In the
latter situation, there is no duty to admonish and secure an on
the record waiver unless the conflict comes to the court’s
attention.’ ” (People v. Bradford (1997) 15 Cal.4th 1229, 1332;
see People v. Enraca (2012) 53 Cal.4th 735, 762.) Absent an
express conflict, “ ‘a trial judge may safely assume that a
defendant, who is ably represented and who does not testify is
merely exercising his Fifth Amendment privilege against self-
incrimination and is abiding by his counsel’s trial
strategy . . . .’ ” (People v. Bradford (1997) 14 Cal.4th 1005,
1053.)
Defendant argues that his decision to forgo testifying was
not knowing, intelligent, and voluntary because he was misled
to believe he could appeal the trial court’s tentative ruling
regarding the admissibility of uncharged crimes evidence even
if he did not testify. (See discussion post.) He asserts he was
misled by the court’s comment, in expressing reluctance to issue
a tentative ruling, that it may “create an issue on appeal.” He
also suggests that “defense counsel continued to make strenuous
objections in an effort to preserve the issue for appeal,” and
counsel “simultaneously objecting to the trial court’s ruling and
advising [him] not to testify strongly suggested that he could
challenge the issue in appellate proceedings.” Defendant
contends “neither the trial court nor defense counsel told him he
was waiving his right to appeal the trial court’s ruling on the
unadjudicated offenses nor did they endeavor to ensure that [he]
was not misled by the trial court’s erroneous statements or trial
counsel’s efforts to preserve the issue for appeal. [His] waiver of
a fundamental right made in the absence of any advice as to its
consequences and the trial court’s uncorrected misleading
statement of law is invalid.”
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Opinion of the Court by Corrigan, J.
Initially, defendant acknowledges that a formal, in-court
waiver of his right to testify was not required because there was
no apparent conflict between defendant and his counsel as to
whether he should take the stand. “ ‘[A] trial judge may safely
assume that a defendant, who is ably represented and who does
not testify is merely exercising his Fifth Amendment privilege
against self-incrimination and is abiding by his counsel’s trial
strategy . . . .’ [Citation.] If that assumption is incorrect,
defendant’s remedy is not a personal waiver in open court, but
a claim of ineffective assistance of counsel.” (People v. Bradford,
supra, 14 Cal.4th at p. 1053.) Defendant does not urge his
counsel was ineffective, nor does he allege there was a conflict
with counsel. Any claim of ineffective assistance based on
evidence not in the trial record must be made in a habeas corpus
petition. (See People v. Mendoza Tello (1997) 15 Cal.4th 264,
266–267.)
In any event, defendant’s argument does not withstand
scrutiny. Defendant’s argument is based on his implicit
suggestion that, had he understood he could not appeal the trial
court’s tentative ruling, he would have testified, presumably to
preserve that issue for appeal. The record here belies
defendant’s suggestion that his decision not to testify turned on
the appealability issue and thus was not knowing and
voluntary. Although the court tentatively ruled defendant could
be impeached with two uncharged incidents if he testified, the
court also agreed to instruct on heat of passion as to Tram and
accident as to the others. The latter ruling largely obviated the
need for defendant to testify to establish the defense theory.
Indeed, defense counsel cited the ruling as a circumstance
supporting defendant’s decision not to testify. At the same time,
defense counsel did not mention the appealability of the court’s
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Opinion of the Court by Corrigan, J.
tentative impeachment ruling, which might have been expected
had appealability been a determinative factor in defendant’s
decision as he now suggests. Further, the court’s offhand
comment explaining its reluctance to create an appellate issue
was immediately corrected by the prosecutor without objection
from defense counsel, with the prosecutor reminding everyone
that defendant would have to testify to preserve any later claim.
Defendant characterizes counsel’s statements during the later
colloquy as a continuing objection to the court’s tentative ruling
which served to further mislead him about the appealability of
that ruling. What counsel intended by his comments is
somewhat unclear, but, as noted, he never mentioned any right
to appeal from the court’s tentative ruling nor did he suggest he
told his client that defendant could appeal the issue without
testifying. This record supports the conclusion that defendant’s
decision not to testify was knowing, intelligent, and voluntary.
(Cf. People v. Sivongxxay (2017) 3 Cal.5th 151, 164–169 [jury
trial waiver].)
4. Impeachment Ruling
Defendant challenges the trial court’s tentative ruling
that, if he testified, he could be impeached with evidence of his
participation in two uncharged robberies. “It is well established
that the denial of a motion to exclude impeachment evidence is
not reviewable on appeal if the defendant subsequently declines
to testify.” (People v. Ledesma (2006) 39 Cal.4th 641, 731; see
Luce v. United States (1984) 469 U.S. 38, 41–43.) Defendant
acknowledges this rule but argues it should not apply here
because he reasonably relied on the court’s misstatement that
the issue was appealable even if he did not testify. (See
discussion ante.) We reject the argument. For the reasons
already discussed, the record belies defendant’s suggestion that
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Opinion of the Court by Corrigan, J.
his decision not to testify was induced by the court’s
misstatement of law. As noted, the court’s statement was
immediately corrected by the prosecutor without defense
objection, and the appealability of the court’s ruling was not
mentioned during defense counsel’s colloquy announcing
defendant’s decision not to testify. These circumstances present
no compelling reason to deviate from settled jurisprudence that
defendant must testify to preserve a challenge to the court’s
tentative ruling on impeachment. (See Ledesma, at p. 731;
People v. Sims (1993) 5 Cal.4th 405, 455–456; see also People v.
Collins (1986) 42 Cal.3d 378, 383–388 [adopting rule].)
5. Exclusion of Defense Evidence
a. Defense Expert
Defendant contends the trial court improperly excluded a
defense expert.12 No error appears.
i. Background
The defense witness list included Dr. David M. Posey. The
prosecutor stated he had received Posey’s report but had
concerns about the form of some of the doctor’s opinions. Posey
concluded he “believes beyond a reasonable doubt that the
shooting of Minh [Tram] was purposeful and intentional,” while
the shooting of the other three victims was “unintentional and
accidental . . . beyond a reasonable doubt.” The court expressed
skepticism that “medicine has evolved to a scientific and medical
12
Defendant claims a violation of his rights to present a
defense, confront witnesses, due process, proof beyond a
reasonable doubt, effective assistance of counsel, and non-
arbitrary guilt and penalty determinations under the Sixth,
Eighth, and Fourteenth Amendments to the federal
Constitution and their state counterparts.
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PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
certainty of whether a person’s discharge of the firearm was
accidental or intentional” and suggested an evidentiary hearing
would be required. (See Evid. Code, § 402, subd. (b).)
At the hearing, the prosecutor asked Posey about an
“incident scenario” he described in his report that Tram was
shot “with a volley of several shots” and “then while an
individual was attempting to disarm the perpetrator, a second
volley of shots accidentally and unintentionally injured and
killed three other victims.” The court asked Posey to clarify the
bases of his opinion. Posey explained that he considered his
opinion “more of injury pattern analysis,” and “the question
posed to me could I render an opinion based on the wound
patterns as to whether I felt it was intentional — wounds were
intentionally placed or unintentionally placed.” The court
questioned whether “a wound in and of itself . . . can tell you
whether the shot was intentional or unintentional” and inquired
what experience or field of medicine allowed him to draw such
conclusions. Posey stated he was a forensic pathologist and
“[y]ou take a pattern of injuries or pattern of gunshot wounds
and you work backwards through the scenario given the
information I was provided.” Posey explained that he could
draw conclusions regarding intentionality “if you compare one
victim to another victim to another victim to the fourth victim,
that’s where I was able to make a decision based on that. [¶]
Seemingly the primary individual, Minh [Tram], had wounds
that were very accurately, in my opinion, from a number of
gunshot wound cases I have done, were purposefully placed.
They were placed to kill. [¶] And as I reviewed the cases the one
that jumped out at me was the young lady, I think it was Ms.
Dang, who had really one gunshot wound that was an entrance
in the left arm, exited the inner portion of the left arm and
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PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
reentered the chest and ended up going through vital organs.
[¶] In my opinion if I am basing it on the whole scenario that
becomes one that was not a purposeful shot. I don’t think that
shot was meant to kill her, based on again what I have seen of
the scene from diagrams, the videos and everything like that.”
There was some confusion about what Posey meant by
“purposeful.” He ultimately clarified he meant an intent to fire
the gun and hit the target, not simply an intent to pull the
trigger. The court observed that the jury had heard evidence
about “the various wounds, the trajectory, the paths through
organs that resulted in death” and asked Posey, “What is the
difference in the evaluation and mental process of those jurors
making that determination and you?” The question was
directed to whether the subject was sufficiently beyond common
experience that the opinion of an expert would assist the trier of
fact. (Evid. Code, § 801, subd. (a).) Posey gave a lengthy
answer: “Sir, it’s a forensic opinion. . . . [W]hat the court has to
understand there is a difference between a medical doctor’s
opinion and a medical forensic opinion. That’s what I opined
earlier, that we take everything, not just this [an examination
of the bodies]. If that’s all there was to it, I wouldn’t even be
sitting here talking to you. But because we are trained, and
that’s the essence of a lot of the training of forensic
medicine . . . . It’s reconstruction of injury patterns to try to put
together in the mind’s eye of the beholder, whoever that is, be it
an attorney like yourself or an attorney, what exactly happened.
People say what happened. I don’t understand. Based on my
experience, training, and everything I have done the last
quarter of a century is what brings us together as a forensic
specialist, not just as an M.D. sitting here with training in
pathology.” Posey clarified that “[y]ou take multiple pieces”
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PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
including “the medical information” and “the investigative
information.” The transcript continues:
“[Posey]: Because Mr. Minh had three well-placed shots
in his body, one the back of his head and two in the side.
Again, I don’t know if it happened all the same time. . . .
These are well-placed shots. Anybody handling a firearm
will know if you put a shot [in] the back of the head, the
lights are out. If you put them in the chest, the chances
are the guy isn’t going to survive.
“The Court: Are you suggesting anybody who shoots
somebody in the chest didn’t do so intentionally [in
apparent reference to victim Dang’s injury]?
“[Posey]: I would think that one case by itself, if they shoot
them in the chest, I would think they were thinking about
ending the individual’s life or at least stopping them from
going forward. But when you relate this to the other three
and you look at the wound pattern, that’s what gave me
the opinion, based on the other information I had from the
investigative reports, that, yes, that could be a possibility
that . . . these three victims weren’t the intention of that
crime that night, that this actually became more of a
secondary accidental thing than it did as I did not, he did
not, whoever the perpetrator, did start out to shoot these
three people. That’s how I came to my opinion, your
honor.”
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PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
Posey confirmed that he had not conducted any experiments
“where shootings took place and tried to verify [his] opinions,”
nor was he aware of other pathologists who had done so.
The court ruled admission of Posey’s opinion about
defendant’s intent would violate Penal Code section 29 (see
discussion post), and “[i]t sure sounds like the doctor is invading
the province of the jury that Penal Code section 29 specifically
reserves to the trier of fact.” The court clarified that Posey could
“testify to any medical pattern or what have you, but what I am
saying is an opinion as to whether the shooting was intentional,
accidental, with malice or without malice is a province that he
is not entitled to go into under this section.” The court later
added that it had “very strong reservations as to whether the
procedure and process that form the basis of his opinion are
something based in science and whether it is a recognized body
of science that includes other individuals or similar background.
[¶] The court is also concerned about the lack of any studies or
attempts to verify the issues that are the subject matters of this
opinion.” Posey was not called to testify.
ii. The Trial Court Properly Excluded Opinion
Testimony Regarding Defendant’s Intent
“While lay witnesses are allowed to testify only about
matters within their personal knowledge (Evid. Code, § 702,
subd. (a)), expert witnesses are given greater latitude. ‘A person
is qualified to testify as an expert if he has special knowledge,
skill, experience, training, or education sufficient to qualify him
as an expert on the subject to which his testimony relates.’
(Evid. Code, § 720, subd. (a).) An expert may express an opinion
on ‘a subject that is sufficiently beyond common experience that
the opinion of an expert would assist the trier of fact.’ (Evid.
Code, § 801, subd. (a).)” (People v. Sanchez (2016) 63 Cal.4th
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Opinion of the Court by Corrigan, J.
665, 675.) “The trial court has broad discretion in deciding
whether to admit or exclude expert testimony [citation], and its
decision as to whether expert testimony meets the standard for
admissibility is subject to review for abuse of discretion.”
(People v. McDowell (2012) 54 Cal.4th 395, 426.)
Defendant argues Posey’s testimony was relevant to his
defense that his shooting of the three victims other than Tram
was accidental. He correctly observes that “[t]estimony in the
form of an opinion that is otherwise admissible is not
objectionable because it embraces the ultimate issue to be
decided by the trier of fact.” (Evid. Code, § 805.) He further
contends that Penal Code section 29, relied on by the trial court,
did not apply to him. That provision states: “In the guilt phase
of a criminal action, any expert testifying about a defendant’s
mental illness, mental disorder, or mental defect shall not testify
as to whether the defendant had or did not have the required
mental states, which include, but are not limited to, purpose,
intent, knowledge, or malice aforethought, for the crimes
charged. The question as to whether the defendant had or did
not have the required mental states shall be decided by the trier
of fact.” (Ibid., italics added.) As defendant notes, Posey did not
purport to testify regarding any mental illness or disorder of
defendant.
Nevertheless, the trial court properly concluded that
Posey’s proposed opinion about defendant’s state of mind should
be excluded. “A consistent line of authority in California as well
as other jurisdictions holds a witness cannot express an opinion
concerning the guilt or innocence of the defendant. . . . [T]he
reason for employing this rule is not because guilt is the
‘ultimate issue of fact’ to be decided by the jury. Opinion
testimony often goes to the ultimate issue in the case. [Citation.]
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Opinion of the Court by Corrigan, J.
Rather, opinions on guilt or innocence are inadmissible because
they are of no assistance to the trier of fact. To put it another
way, the trier of fact is as competent as the witness to weigh the
evidence and draw a conclusion on the issue of guilt.” (People v.
Torres (1995) 33 Cal.App.4th 37, 46–47.) Here, Posey’s proposed
testimony was “tantamount to expressing an opinion as to
defendant’s guilt” (People v. Ward (2005) 36 Cal.4th 186, 210)
because it proposed to dispose of an essential element of the
crime. In essence, Posey sought to testify that defendant was
not guilty of three murders because defendant lacked the
required intent. Posey opined that the wounds to the three
victims other than Tram reflected that they were not
“purposeful” but accidental. He acknowledged that his opinion
was not based solely on any medical evaluation of the wounds
but also on “investigative information,” including evidence
suggesting that Tram was defendant’s primary target. Indeed,
Posey conceded that if his opinion was limited to the medical
evidence, he “wouldn’t even be sitting here talking to you.” As
the trial court observed, the jury was equally equipped as Posey
to evaluate whether the shooting of the other three victims was
accidental or intentional. Posey’s opinion “of the knowledge or
intent of a defendant on trial” (People v. Gonzalez (2005) 126
Cal.App.4th 1539, 1551) did not assist the trier of fact and the
court did not abuse its discretion by excluding the testimony.
(See Torres, at pp. 47–48.)
Defendant suggests Posey’s testimony was necessary to
rebut the testimony of prosecution firearms expert Patricia
Fant. He argues Fant “opined that, based on her trajectory rod
analysis, the shooter was aiming for or shooting for the victims’
center mass or heads,” and “[t]hus, Fant, based on her analysis
of forensic evidence, was testifying as to the shooter’s intent.”
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Opinion of the Court by Corrigan, J.
Defendant mischaracterizes Fant’s testimony. Fant testified
that the bullet trajectories were consistent with the shooter
being positioned in front of the booth and firing at a slightly
downward angle. Although Fant agreed with the prosecutor’s
statement that the shooter “was basically shooting center mass
or head,” she contrasted the trajectories with what might be
expected if the shooter were aiming “at their arms or their feet
or their legs.” Fant testified as to the direction and angle at
which the shots were fired. She did not purport to testify
regarding the shooter’s mental processes. She conceded on
cross-examination that she did not know whether the bullets hit
the table before entering the victims and acknowledged that an
intervening object could have changed the bullet trajectory.
Posey’s proposed testimony would not have constituted valid
rebuttal to Fant’s testimony.
b. Evidence Regarding the International Club’s
Business License
Defendant contends the trial court improperly excluded
evidence that the City of El Monte tried to rescind the
International Club’s business license after the shooting.13 The
court did not err.
i. Background
Before trial, defense counsel proposed to present evidence
from witnesses who “testified at a hearing and provided reports
regarding International Club and efforts to close it down, prior
incidents that had occurred there, why there was supposed to be
increased security.” Counsel argued the evidence was relevant
to the credibility of John Bui, the club’s owner. The court
13
See footnote 12, ante, at page 26, as to the errors asserted.
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PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
conducted a hearing. (Evid. Code, § 402, subd. (b).) El Monte
Police Officer Gary Haidet testified that, after the murders, he
was asked to review police dispatches to the club to determine
whether its business license should be renewed. Between
November 1996 and this incident, there were 51 radio calls for
police assistance at the club. Six calls involved guns or
shootings. Haidet recommended that the club’s license not be
renewed based on several factors: increased gang activity;
concerns regarding security and underage patrons; and its
remote location, which hampered police response. Further, the
club’s metal detector had not worked “for quite a while,”
including the night of the shooting. The club’s business license
expressly required the use of security guards and metal
detectors. Los Angeles County Sheriff’s Sergeant William
Howell testified that, although the club was known as an Asian
gang hangout, he had no information that Bui was associated
with any gang.
Defense counsel argued this evidence was relevant to Bui’s
credibility because it showed he failed to follow the
requirements of the club’s license, particularly for adequate
security. The court sustained the prosecutor’s hearsay and
relevance objections without prejudice to a renewed request at
trial. After Bui’s trial testimony, defense counsel asked “to bring
in evidence of the fact that that location is a gang hangout and
information having to do with Mr. Bui being involved as a
security person.” The court denied the request, noting that Bui
expressly denied being in charge of security and questioning the
relevance of the evidence on Bui’s credibility.
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Opinion of the Court by Corrigan, J.
ii. The Trial Court Properly Excluded the
Evidence
Defendant here provides a laundry list of reasons why this
evidence was relevant. He argues the evidence impeached Bui’s
credibility by refuting his claim that he was not responsible for
security and suggesting he had a motive to lie because his
business license was imperiled. These claims lack merit. On
the first point, although Bui may have been “responsible” for
security in the sense that he was a co-owner of the club, this fact
was not inconsistent with Bui’s testimony that his partner
handled the day-to-day security of the club. As to credibility,
defendant does not explain how Bui’s allegedly false testimony
about the shooting would have aided renewal of his business
license. It was the fact of the shooting, not its particulars, that
prompted the investigation. No evidence was offered to suggest
that Bui was told of the license review or that he was otherwise
aware of it.
Defendant’s remaining arguments conflate the business
license investigation with general evidence that the club was
patronized by gang members. Defendant contends the evidence
would have (1) impeached Bui’s testimony that he was not
aware the club was a gang hangout, (2) shown Bui was
“financially beholden” to gangs because of their patronage, (3)
refuted the prosecutor’s suggestion that Bui was a victim who
ran a “clean” business, and (4) bolstered the reasonableness of
his own conduct by explaining the “gang dynamics” at the club.
However, the court did not preclude evidence of gang conduct at
the club generally. Defense counsel made clear he sought
evidence of the license investigation to impeach Bui. He did not
offer broader evidence as to gang attendance or activity there.
Exclusion of this irrelevant evidence did not undermine
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Opinion of the Court by Corrigan, J.
defendant’s right to present a defense. (See People v. Thornton
(2007) 41 Cal.4th 391, 445.)
6. Defendant’s Gang Affiliation
Defendant contends the court erred by denying his pretrial
motion to exclude evidence of his gang membership.14 The
prosecutor argued before the trial court that the gang evidence
“explains some of the interrelationships between the people and
it also goes to motive.” Defense counsel countered that evidence
of his gang membership was irrelevant because “[t]here are no
gang allegations filed,” though counsel conceded “[t]here can be
reference to the location being a gang location and that type
testimony.” The prosecutor responded that “we can’t refer to
this place as a gang hangout, refer to some of the victims as gang
members, but then completely sanitize Mr. Duong.” The
prosecutor argued a gang enhancement allegation was not
necessary to present evidence of defendant’s membership if it
was otherwise relevant to explain the shooting. The court ruled
the evidence was relevant to motive and Bui’s reluctance to
testify, and concluded the probative value was not substantially
outweighed by the probability of undue prejudice. (See Evid.
Code, § 352.) The court later gave a limiting instruction that
defendant’s gang membership could only be considered as to
identity or motive.
Defendant argues here that his gang membership was
irrelevant because no gang enhancement allegation was filed,
and the identity of the shooter was not at issue. Initially, it was
14
Defendant claims a violation of his federal and state
constitutional rights to due process, a fair trial, an impartial
jury, reliable guilt and penalty determinations, freedom of
association, and proof beyond a reasonable doubt.
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Opinion of the Court by Corrigan, J.
not clear before trial that the defense would concede identity.
One witness, Hoa Truong, told a defense investigator defendant
could not have been the shooter because defendant ran from the
club during the incident. Truong later renounced that
statement at trial.
In any event, as the court below reasoned, there was little
question that evidence of defendant’s gang membership was
relevant to motive. Indeed, without such evidence, the shooting
would have been difficult to explain. There was conflicting
evidence about whether defendant was involved in the
preceding argument, and there was no evidence he had any prior
relationship to Tram.
The gang affiliation evidence gave context to the shooting,
as well as the destruction of evidence afterwards. Defendant, a
member of Lao Family, was at the club with other Lao Family
members, including Anthony Tran. He sat at a table with
members of other friendly gangs, including the Wah Ching and
Pomona Boys. Khiet Diep, a Wah Ching member who sat at
defendant’s table, was later seen destroying surveillance video.
Thi Van Le identified Tran as being involved in the argument in
the restroom and that victim Minh Tram joined the argument.
Bui told police he saw Tram having a “heated discussion” with
someone as he left the restroom, then saw defendant and Tram
leave the restroom together. Bui confirmed that defendant’s
group and Tram’s group were both involved in the restroom
altercation. Diep also told police that defendant was involved in
the argument. Defendant was subsequently heard to ask Diep
whether he wanted defendant to “do him now.” Tram and a
companion were members of the Black Dragon gang. Neither
defendant nor others with him were associated with that gang.
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PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
“In general, ‘[t]he People are entitled to “introduce
evidence of gang affiliation and activity where such evidence is
relevant to an issue of motive or intent.” [Citation.]’ [Citation.]
‘[E]ven where gang membership is relevant,’ however, ‘because
it may have a highly inflammatory impact on the jury trial
courts should carefully scrutinize such evidence before
admitting it.’ [Citations.] On the other hand, ‘ “[b]ecause a
motive is ordinarily the incentive for criminal behavior, its
probative value generally exceeds its prejudicial effect, and wide
latitude is permitted in admitting evidence of its existence.”
[Citations.]’ [Citation.] On appeal, we review for abuse of
discretion a trial court’s ruling on whether evidence is relevant,
not unduly prejudicial, and thus admissible.” (People v.
McKinnon (2011) 52 Cal.4th 610, 655.) No abuse of discretion
appears on this record. The gang evidence explained
defendant’s willingness to shoot a complete stranger minutes
after a verbal spat, along with the apparent coordination among
defendant’s associates to destroy the surveillance tape. Of
course, other motivations could have been at play. Defendant
may have acted in the heat of passion, as the defense argued at
trial. But the possibility of other motivations did not preclude
the prosecution from presenting evidence that gang affiliation
was the precipitating factor. (See ibid.; see also People v. Montes
(2014) 58 Cal.4th 809, 859–860; People v. Carter (2003) 30
Cal.4th 1166, 1194–1196.)
The probative value was not substantially outweighed by
the probability of undue prejudice. (Evid. Code, § 352.) The
gang evidence was largely limited to testimony regarding
various people’s affiliations. Two witnesses testified defendant
had an “LF” tattoo. No gang expert testified, and there was no
evidence of any other gang-related activity other than this
37
PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
shooting. The court properly admonished the jury that gang
evidence was only relevant as to identity or motive and did not
reflect on defendant’s character. (People v. Valdez (2012) 55
Cal.4th 82, 134.)
7. Instructional Error Claims
a. CALJIC No. 2.83
Defendant contends15 the trial court should have granted
his request to give CALJIC No. 2.83: “In resolving any conflict
that may exist in the testimony of expert witnesses, you should
weigh the opinion of one expert against that of another. In doing
this, you should consider the qualifications and believability of
each witness, the reasons for each opinion and the matter upon
which it is based.” (See also CALCRIM No. 332.) Although
acknowledging that the defense called no experts, counsel
argued the instruction was necessary for the jury to distinguish
among the prosecution experts, claiming “they may have had
testimony which was not entirely consistent with one another.”
The court declined to give the instruction, concluding “[t]here
doesn’t appear to be competing opinions on similar subject
matters.”
Contrary to defendant’s contention, there was no
“materially conflicting testimony on similar subject matters”
among the prosecution experts. He alleges two instances. First,
he claims, “Fant testified that the angle of some of the shots may
have been altered because they passed through something.
[Citation.] In contrast, pathologist Lisa Scheinin was skeptical
15
Defendant claims he was deprived of his right to due
process “and other rights” protected by the Sixth, Eighth, and
Fourteenth Amendments to the federal Constitution and their
state counterparts.
38
PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
that any of the bullets passed through another person or object
before hitting the victims.” (Italics added.) As the People
observe, defendant mischaracterizes the testimony. In
reference to some of the trajectory rods in the booth where the
shooting occurred, the prosecutor inquired whether “some of the
shots appear to have been fired almost straight on into the booth
where some appear to have been fired from an angle into the
booth.” Fant responded that “[s]ometimes the angle, because we
don’t have everything exactly the way it was, once the bullet
goes through something it could change trajectory,” but that “all
I can say is the person was standing in front and firing from the
seating area back towards where . . . [t]he walkway is.” Fant
did not testify the bullets did pass through something before
striking a victim. Her testimony was not inconsistent with Dr.
Scheinin’s during cross-examination refuting defense counsel’s
suggestion that the bullets could have ricocheted off of the table
into the victims. Fant was discussing a bullet changing
trajectory after entering a victim’s body, whereas Scheinin was
addressing whether a bullet could have ricocheted before hitting
the victims.
The second alleged conflict involved testimony about the
ease of firing a weapon under certain circumstances: “Firearms
examiner Mike Oto testified that generally, once the slide or
safety is off on a gun, it is easier to pull the trigger. [Citation.]
On the other hand, firearms expert Manuel Munoz testified that
it becomes no easier to pull the trigger after the safety is off and
an initial shot is fired. [Citation.] Patricia Fant testified that
to her knowledge, it was possible for a semi-automatic weapon
to discharge at least two bullets accidentally.” These experts
were discussing different aspects of the process. Oto agreed
with defense counsel on cross-examination that pulling back the
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PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
slide and taking the safety off would make a gun “easier to
shoot” by placing it in a “shooting position.” By contrast, Munoz
was testifying about the pounds of force required to pull the
trigger itself, and that each successive shot did not become
easier in that sense. It is unclear how either Oto’s or Munoz’s
testimony conflicted with Fant’s testimony that two bullets were
“[t]he most” she had heard of having been expelled during an
accidental discharge.
On this record, the defense request “was properly refused
on the ground that no conflicting expert testimony was
presented.” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1161.)
It should be noted that the court gave CALJIC No. 2.80, which
told jurors they should “consider the qualifications and
believability of the witness, the facts or materials upon which
each opinion is based, and the reasons for each opinion,” as well
as whether any fact relied upon “has not been proved, or has
been disproved,” and “the strengths and weaknesses of the
reasons” upon which their opinions are based. The court also
gave CALJIC No. 2.82 addressing hypothetical questions. The
jury was adequately instructed.
b. Lying in Wait
Defendant contends no substantial evidence warranted
instructing the jury as to murder by lying in wait.16
Alternatively, he argues the instruction regarding the theory17
16
Defendant claims a violation of his rights to a fair trial and
due process under the Sixth and Fourteenth Amendments to the
federal Constitution and their state counterparts.
17
We address only lying in wait as a theory of first degree
murder as the jury was not instructed on the lying in wait
special circumstance. (Pen. Code, § 190.2, subd. (a)(15).)
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PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
was defective. We reject these claims. “To prove lying in wait,
the prosecution must prove there was a concealment of purpose,
a substantial period of watching and waiting for a favorable or
opportune time to act, and that immediately thereafter the
defendant launched a surprise attack on an unsuspecting victim
from a position of advantage.” (People v. Gurule (2002) 28
Cal.4th 557, 630; see People v. Russell (2010) 50 Cal.4th 1228,
1244 (Russell).)
We reject defendant’s argument that no evidence showed
concealment of purpose. “With regard to the element of
concealment, we have explained that physical concealment
before the attack on the victim is not required. Rather, ‘ “[i]t is
sufficient that a defendant’s true intent and purpose were
concealed by his actions or conduct.” ’ [Citation.] The
concealment, in that sense, ‘ “is that which puts the defendant
in a position of advantage, from which the factfinder can infer
that lying-in-wait was part of the defendant’s plan to take the
victim by surprise.” ’ ” (People v. Johnson (2016) 62 Cal.4th 600,
631–632.) Defendant did not shoot Tram immediately after the
verbal altercation. Following the argument, defendant sat with
Diep and asked if Diep wanted him to “do him now.” About 10
to 15 minutes after the argument, defendant approached the
booth from behind and started shooting as he neared the front
of it. Tram did not draw his own gun before being hit,
suggesting he was surprised by the attack. Defendant waited to
attack until Tram was seated in the booth, a position of
disadvantage. There was sufficient evidence of concealed
purpose. (See ibid.; Russell, supra, 50 Cal.4th at p. 1245.)
Defendant acknowledges that he did not shoot Tram
immediately after the argument but suggests there was no
evidence of a substantial period of watching and waiting because
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PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
Tram provoked him during their verbal altercation and “the
provocation continued and escalated until the first shots were
fired.” This contention misses the mark. The jury was fully
instructed on provocation and could have returned a voluntary
manslaughter verdict as to Tram under a heat of passion theory.
Of course, the jury was not obligated to accept the defense
theory, and the existence of some evidence warranting an
instruction on that theory did not preclude an instruction on
lying in wait where, as here, there existed substantial evidence
of a concealed purpose.
Defendant alternatively contends CALJIC No. 8.25, given
here, was inadequate in two respects. First, it failed to inform
jurors that lying in wait did not apply if defendant “acted in
anger, in response to provocation.” Second, the instruction did
not tell the jury the period of watching and waiting must be “for
a substantial period of time.”
These claims lack merit. “We have repeatedly held that
CALJIC No. 8.25 adequately conveys to a jury the elements of
lying-in-wait murder.” (Russell, supra, 50 Cal.4th at p. 1244;
People v. Ceja (1993) 4 Cal.4th 1134, 1139.) On the first point,
the court gave CALJIC No. 8.42 dealing with heat of passion
voluntary manslaughter. Heat of passion requires that “the
reason of the accused was obscured or disturbed by passion to
such an extent as would cause the ordinarily reasonable person
of average disposition to act rashly and without deliberation and
reflection, and from passion rather than from judgment.” (Ibid.)
The court also gave CALJIC No. 8.50, which explained that
“[w]hen the act causing the death, though unlawful, is done in
the heat of passion or is excited by a sudden quarrel that
amounts to adequate provocation, the offense is manslaughter.
In that case, even if an intent to kill exists, the law is that
42
PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
malice, which is an essential element of murder, is absent.” By
contrast, the court instructed jurors that murder required
malice aforethought (see CALJIC Nos. 8.10, 8.11), and lying-in-
wait first degree murder required a period of waiting “such as to
show a state of mind equivalent to premeditation or
deliberation” (CALJIC No. 8.25). Considered as a whole, these
instructions adequately told the jury that, if it found defendant
killed the victims under legally adequate provocation, he could
not be found guilty of first degree murder. If defendant wanted
a more direct statement to that effect based on the particular
facts here, it was incumbent upon him to request such an
instruction. (Cf. People v. Rogers (2006) 39 Cal.4th 826, 878–
880 [instruction on provocation reducing degree of murder is a
pinpoint instruction].)
We have previously rejected defendant’s second argument.
“Defendant next contends the instructions do not require a
‘substantial’ period of waiting and watching. Again, the specific
word ‘substantial’ was not used. However, the jury was told that
the lying in wait must be of sufficient duration to establish the
elements of waiting, watching and concealment or other secret
design to take the victim unawares and by surprise, and that a
murder done suddenly without such waiting, watching and
concealment is not murder by lying in wait. These requirements
necessarily include a substantial temporal element. We have
never required a certain minimum period of time, only a period
not insubstantial. The instructions sufficiently convey this
meaning.” (People v. Edwards (1991) 54 Cal.3d 787, 823; see
Russell, supra, 50 Cal.4th at pp. 1244–1245.)
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PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
B. Penalty Phase Issues
1. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct
during penalty phase argument.18 “Prosecutorial misbehavior
‘violates the federal Constitution when it comprises a pattern of
conduct “so egregious that it infects the trial with such
unfairness as to make the conviction a denial of due process.” ’ ”
(People v. Rhoades (2019) 8 Cal.5th 393, 418.) Under state law,
a prosecutor’s action that does not cause fundamental
unfairness is prosecutorial misconduct only if it involves “ ‘ “ ‘the
use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury.’ ” ’ ” (Ibid.) We reject
defendant’s assertions of misconduct.
Defendant asserts the prosecutor improperly suggested
that choosing a sentence of life without the possibility of parole
would be the “easy way out” and “if you take an easy way out, I
suggest that at some point in time, some day when you look
yourself in the mirror, you will know in your heart you did the
wrong thing.” Defendant mischaracterizes the prosecutor’s
argument. He was not suggesting that any verdict of life
without parole would constitute the “easy way out.” Rather, he
was urging that jurors who came to the conclusion that death
was the appropriate judgment should not vote for life without
parole simply because a death verdict was more difficult. The
prosecutor said after the statement quoted above: “In life there’s
tough decisions that sometimes have to be made. And if we
18
Defendant claims he was denied his rights to a fair trial,
due process, and a reliable penalty determination in violation of
the Fifth, Sixth, Eighth, and Eleventh Amendments to the
federal Constitution and their state counterparts.
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PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
make those decisions honestly, we make the tough decisions, we
don’t take the easy way out. I dare say, ladies and gentlemen,
if you follow the evidence in this case, if you follow the evidence,
there’s but one conclusion to come to. And that’s not an easy
conclusion. But if you come to it, you will always be able to look
yourself in the mirror and say, you know what, I got summoned
into court, it’s something I would have rather not have done, it
was a very difficult decision, one I may think about daily for the
rest of my life. But I know this, I know that I made the decision
that was the right decision to make.” We have previously noted
that it is “proper for the prosecutor to argue that determining
the appropriate punishment in a capital case is a difficult
decision that requires courage.” (People v. Jones (1997) 15
Cal.4th 119, 185, overruled on another ground in People v. Hill
(1998) 17 Cal.4th 800, 823, fn. 1.) The prosecutor’s comments
here were in the same vein.
Defendant next argues the prosecutor improperly
suggested defendant would be a “shark” in prison if the jury
spared his life. Defendant contends future dangerousness in
prison is not an aggravating factor and should not have been
argued. Initially, “the prosecutor may not present expert
evidence of future dangerousness as an aggravating factor, but
he may argue from the defendant’s past conduct, as indicated in
the record, that the defendant will be a danger in prison.”
(People v. Zambrano, supra, 41 Cal.4th at p. 1179, italics added;
see People v. Tully (2012) 54 Cal.4th 952, 1054.) The
prosecutor’s arguments were based, not on expert opinion, but
on the circumstances of the present case and defendant’s
conduct during the other uncharged robberies and murders.
The prosecutor first argued that, even if jurors could “feel safe
knowing you took Mr. Duong out of society,” “that’s not the
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PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
question we’re here to address. We’re here to address what is
the appropriate punishment for Mr. Duong’s conduct in this
case.” In this context, the prosecutor stated: “Sometimes jurors
are told that life imprisonment without the possibility of parole
is like being on a boat alone in the middle of an ocean
surrounded by sharks. The analogy being that a defendant
serving life in prison without the possibility of parole is basically
in a jail cell and the prison is the ocean and the other inmates
are the sharks. Again, that is not what you’re here to decide.
You’re here to decide what is the appropriate punishment. [¶]
And also you might well say that based on the evidence
presented Mr. Duong is the shark. And I don’t say that to arouse
hatred or malice towards Mr. Duong. That’s not the point, but
I’m going to be very candid in my remarks concerning his
conduct.” This comment dovetailed into a discussion about
defendant’s conduct during the other robbery incidents and how
he manipulated his girlfriend to do his bidding. The prosecutor
argued: “Is that the conduct of a man that in any way will ever,
ever be anything but a threat to other people? Do you think just
because he has LWOP that his conduct will ever change, that he
will not be a danger?” As this argument was “based on the
evidence presented” (People v. Boyette (2002) 29 Cal.4th 381,
446), there was no misconduct. (See People v. Freeman (1994) 8
Cal.4th 450, 521.)
Defendant contends the prosecutor improperly argued
defendant lacked remorse for the killings. He further suggests
the prosecutor misrepresented the facts on this point by not
presenting evidence of defendant’s suicide attempt while
incarcerated or his comments before the penalty phase that he
wanted to “accept the D. P. instead of going through this.”
Defendant points to two comments by the prosecutor that
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PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
defendant “has not shown one tear drop of remorse” and he “took
the life of each of those individuals without one shred of remorse
or mercy.” “[L]ack of remorse, because it suggests the absence
of a mitigating factor, is deemed a relevant factor in the jury’s
determination as to whether the factors in aggravation
outweigh those in mitigation, and is thus an appropriate subject
of comment by the prosecutor, so long as he or she does not argue
that lack of remorse constitutes a factor in aggravation.” (People
v. Crittenden (1994) 9 Cal.4th 83, 150; see People v. Spencer
(2018) 5 Cal.5th 642, 687.) The prosecutor could reasonably
argue, based on defendant’s conduct, the absence of remorse as
a mitigating circumstance. If defendant believed other evidence
tended to rebut such an argument, he was free to present it.
That he chose not to do so did not render the prosecutor’s
comments misleading.
Finally, defendant complains that the prosecutor should
not have been allowed to read a passage from the book The
Killing of Bonnie Garland.19 Defendant acknowledges that we
19
As read to the jury here, the passage stated: “When one
person kills another there is an immediate revulsion in the
nature of the crime. But in time so short as to seem indecent to
the members of the personal family, the dead person ceases to
exist as an identifiable figure. To those individuals in the
community of good will and sympathy and empathy, warmth
and compassion, only one of the key actors in the drama remains
with whom to commiserate, and that is always the criminal. The
dead person ceases to be a part of everyday reality, ceases to
exist. The victim is only a figure in a historic event. And we
inevitably turn away from the past toward the ongoing reality
of everyday life. And the ongoing reality is that the criminal,
trapped, anxious, now helpless, isolated, perhaps badgered,
perhaps bewildered, is all that’s left. He takes away compassion
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PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
have repeatedly rejected that argument, explaining, “in
determining penalty, [the jury] was required to consider not only
the criminal but also his crime.” (People v. Rowland (1992) 4
Cal.4th 238, 277–278; see People v. Cook (2006) 39 Cal.4th 566,
612–613; People v. Gurule, supra, 28 Cal.4th at p. 659; People v.
Hines (1997) 15 Cal.4th 997, 1063.) Contrary to defendant’s
assertion, nothing in the prosecutor’s argument suggested
jurors should “compare the victims in this case to Bonnie
Garland.” The prosecutor argued defendant was not deserving
of mercy or leniency, and “arguing to the jury the mere idea or
belief that criminals sometimes get undeserved sympathy at the
expense of their victims was proper.” (Gurule, at p. 659.)
2. Victim Impact Evidence
Defendant challenges several aspects of the victim impact
testimony.20 “The Eighth Amendment does not categorically bar
victim impact evidence. [Citation.] To the contrary, witnesses
are permitted to share with jurors the harm that a capital crime
caused in their lives.” (People v. Perez (2018) 4 Cal.5th 421, 461–
462.) “That is because ‘the effects of a capital crime are relevant
. . . as a circumstance of the crime.’ [Citations.] And so long as
victim impact evidence does not invite the jury to respond in a
that is justly the victim’s. And he will steal away his victim’s
moral constituency along with the victim’s life.”
20
Defendant claims a violation of the Sixth, Eighth, and
Fourteenth Amendments to the federal Constitution and their
state counterparts, depriving him of his rights to due process, a
fair trial, a reliable penalty determination, and other
unspecified rights.
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PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
purely irrational way, it is admissible.” (People v. Mendez (2019)
7 Cal.5th 680, 712.)
Defendant first argues one of the victim impact witnesses
gave improper opinion testimony. Mach Dang testified about
the impact of his daughter’s murder. He said he and his wife
had been “suffering” and unable to sleep, his wife was sick, and
he was “having a chest pain all the time.” His daughter had
wanted to be a teacher. After the prosecutor thanked him for
his brief testimony,21 he stated: “Sir, I first of all I thank you
God for getting this defendant here because he is not able to kill
another person.” Defense counsel objected, the witness left the
stand, and the parties moved on to the next witness.
Although “[i]t is improper for the victim’s family to express
their opinion regarding the proper verdict” (People v. Collins
(2010) 49 Cal.4th 175, 229), that is hardly what occurred here.
The witness was not asked what verdict he believed the jury
should render. To the extent the witness was expressing that
defendant’s conviction gave him some closure, the testimony
was not improper. (See People v. Mills (2010) 48 Cal.4th 158,
212–213.) Defendant could have asked that the comment be
stricken and the jury admonished. He did not do so. (See
Collins, at p. 229.)
Defendant complains the court should not have allowed
“victim impact” testimony regarding two of the uncharged
robberies. Michael Jeng testified that he worked at Wintec
Industries when defendant killed his coworker Hsu Pin Tsai
during a robbery attempt. Jeng described how, at the time of the
21
Mach Dang’s testimony spanned two reporter’s transcript
pages.
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PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
shooting, Tsai was disabled and wore a leg brace. He also
testified that Tsai’s wife worked at the company but was not
present during the incident. Rafael Gomez testified he was
working as a security guard at Traditional Jewelers when
defendant shot him during a robbery attempt. Gomez had four
surgeries as a result of the shooting, been unable to return to
work, and required two more surgeries.
Initially, it seems questionable that this testimony
constituted victim impact evidence at all, which is traditionally
defined as “evidence about the victim and about the impact of
the murder on the victim’s family.” (Payne v. Tennessee (1991)
501 U.S. 808, 827; People v. Simon (2016) 1 Cal.5th 98, 138.)
The testimony in question only described the circumstances of
the shootings and their direct aftermath. They did not
encompass biographical information about Tsai or Gomez or any
impacts the crimes had on their families. Even if this testimony
did constitute victim impact evidence, “[t]he circumstances of
uncharged violent criminal conduct, including its impact on the
victims of that conduct, are admissible under [Penal Code]
section 190.3, factor (b).” (People v. Brady (2010) 50 Cal.4th 547,
581–582.) The evidence was “relevant to the jury’s penalty
determination and its admission did not render defendant’s trial
constitutionally unfair.” (People v. Adams (2014) 60 Cal.4th
541, 573.)
We also reject defendant’s assertion that this testimony’s
probative value was substantially outweighed by the probability
of undue prejudice. (Evid. Code, § 352.) The testimony was both
highly probative and tended to rebut the defense suggestion that
the present shooting resulted from a combination of provocation
and accident. The witnesses did not recount any psychological
impacts of defendant’s crimes, and their descriptions of the
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Opinion of the Court by Corrigan, J.
physical injuries were not inflammatory. (See People v. Brady,
supra, 50 Cal.4th at p. 582.)
Defendant claims he was given inadequate notice that the
prosecution would present victim impact evidence regarding the
uncharged offenses. He asserts the prosecutor “misinform[ed]”
him that victim impact evidence would be limited to victims
Dang and Norman. Defendant’s claim rests entirely on the use
of the label “victim impact evidence.” Before trial, the
prosecution filed a notice of intent to introduce aggravating
evidence at the penalty phase, listing eight uncharged incidents
and victim impact testimony as to all four victims here. After
the jury’s guilt phase verdict, the court inquired whether
defense counsel had conferred with the prosecutor regarding
“the specific evidence in aggravation” and if there was “any more
need to address what the People’s intention is.” Defense counsel
responded that he believed “this issue was addressed back in
September of last year” and he understood the prosecution
would present evidence of “[t]he four aggravating incidents, plus
two victim statements.” Counsel was fully aware of the
prosecution’s intent to present evidence as to the uncharged
offenses.
3. Constitutionality of the Death Penalty Statute
Defendant raises numerous familiar challenges to the
constitutionality of California’s death penalty scheme.
Although recognizing we have previously rejected all of these
arguments, he renews them to urge reconsideration and
preserve the issues for federal review. We decline to reconsider
our settled precedent and continue to hold the following:
The category of death-eligible defendants under Penal
Code section 190.2 is not unconstitutionally overbroad. (People
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Opinion of the Court by Corrigan, J.
v. Winbush (2017) 2 Cal.5th 402, 488 (Winbush); see People v.
Reed (2018) 4 Cal.5th 989, 1018.) Penal Code section 190.3,
factor (a), allowing aggravation based on the circumstances of
the crime, does not result in arbitrary and capricious
sentencing. (People v. Thompson (2016) 1 Cal.5th 1043, 1129;
see People v. Salazar (2016) 63 Cal.4th 214, 255 (Salazar).) The
death penalty scheme is not unconstitutional for failing to
require written findings (Winbush, at p. 490), unanimous
findings (People v. Wall (2017) 3 Cal.5th 1048, 1072 (Wall)), or
findings beyond a reasonable doubt as to the existence of
aggravating factors, that aggravating factors outweigh
mitigating factors, or that death is the appropriate penalty.
(Winbush, at p. 489; People v. Rangel (2016) 62 Cal.4th 1192,
1235.) These conclusions are not altered by Apprendi v. New
Jersey (2000) 530 U.S. 466, Ring v. Arizona (2002) 536 U.S. 584,
or Hurst v. Florida (2016) 577 U.S. __ [136 S.Ct. 616]. (People
v. Henriquez (2017) 4 Cal.5th 1, 45 (Henriquez).) The
prosecution is not constitutionally obligated to bear a burden of
proof or persuasion in sentencing, which is “an inherently moral
and normative function, and not a factual one amenable to
burden of proof calculations.” (Winbush, at p. 489.) For similar
reasons, we have held the jury need not be instructed on a
standard of proof for mitigating evidence. (People v. Capers
(2019) 7 Cal.5th 989, 1016; People v. Jackson (2016) 1 Cal.5th
269, 373.) The federal Constitution also does not require an
instruction that life is the presumptive penalty. (Wall, at
p. 1072; Salazar, at p. 256.)
CALJIC No. 8.88 is not defective for failing to require a
determination that death is the “appropriate” penalty (see
Salazar, supra, 63 Cal.4th at p. 256; People v. Boyce (2014) 59
Cal.4th 672, 724) or failing to require a life sentence if the jury
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Opinion of the Court by Corrigan, J.
finds that mitigating factors outweigh aggravating ones (People
v. Johnson (2018) 6 Cal.5th 541, 594; People v. Moon (2005) 37
Cal.4th 1, 42). This instruction’s use of the phrase “so
substantial” was not overbroad or unconstitutionally vague.
(Wall, supra, 3 Cal.5th at p. 1073; Salazar, at p. 256.) CALJIC
No. 8.85’s use of the words “extreme” and “substantial” to
describe mitigating circumstances does not impermissibly limit
the jury’s consideration of mitigating factors. (Rices, supra, 4
Cal.5th at p. 94; Wall, at p. 1073.) The court was not
constitutionally obligated to delete inapplicable sentencing
factors, designate which factors are aggravating or mitigating,
or instruct that certain factors are relevant only in mitigation.
(Winbush, supra, 2 Cal.5th at p. 490; People v. Cook, supra, 39
Cal.4th at p. 618.) “The trial court is not required to instruct
the jury that the absence of a mitigating factor cannot be
considered as an aggravating factor.” (People v. McKinnon,
supra, 52 Cal.4th at p. 692; see Salazar, at p. 256.)
The federal Constitution does not require intercase
proportionality review. (People v. Johnson, supra, 6 Cal.5th at
p. 594; Winbush, supra, 2 Cal.5th at p. 490.) Nor does the death
penalty statute violate equal protection by providing different
procedural safeguards to capital and noncapital defendants.
(Johnson, at p. 594; Henriquez, supra, 4 Cal.5th at p. 46.)
Finally, we have repeatedly held that California’s capital
sentencing scheme does not violate international norms or
evolving standards of decency in violation of the Eighth and
Fourteenth Amendments. (Henriquez, at p. 47; Winbush, at
p. 490; People v. Boyce, supra, 59 Cal.4th at p. 725.)
53
PEOPLE v. DUONG
Opinion of the Court by Corrigan, J.
C. Cumulative Error Claim
Defendant contends cumulative error deprived him of a
fair trial. “We have found no error, and where we assumed
error, we have found no prejudice. Nor do we discern cumulative
prejudice.” (People v. Edwards (2013) 57 Cal.4th 658, 767; see
People v. Bell (2019) 7 Cal.5th 70, 132; People v. Westerfield
(2019) 6 Cal.5th 632, 728.)
III. DISPOSITION
The judgment is affirmed.
CORRIGAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
54
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Duong
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S114228
Date Filed: August 10, 2020
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Robert M. Martinez
__________________________________________________________________________________
Counsel:
Debra S. Sabah Press and Charles J. Press, under appointments by the Supreme Court, for Defendant and
Appellant.
Kamala Harris and Xavier Becerra, Attorneys General, Lance E. Winters, Assistant Attorney General,
Joseph P. Lee and Jonathan M. Krauss, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Debra S. Sabah Press
Attorney at Law
3571 Far West Boulevard, PMB 140
Austin, TX 78731
(512) 215-8964
Jonathan M. Krauss
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, Ca 90013
(213) 269-6123