The opinion
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
RONALD TRI TRAN,
Defendant and Appellant.
S165998
Orange County Superior Court
01HF0193
August 29, 2022
Justice Liu authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Corrigan, Kruger,
Groban, Jenkins, and Guerrero concurred.
PEOPLE v. TRAN
S165998
Opinion of the Court by Liu, J.
A jury convicted defendant Ronald Tri Tran of first degree
murder for the killing of Linda Park. (Pen. Code, § 187,
subd. (a); all statutory references are to the Penal Code unless
otherwise specified.) The jury found true the special
circumstances of robbery murder (§ 190.2, subd. (a)(17)(A)),
burglary murder (§ 190.2, subd. (a)(17)(G)), and torture murder
(§ 190.2, subd. (a)(18)). It also found true the enhancement that
Tran committed the murder for the benefit of, at the direction
of, or in association with a criminal street gang. (§ 186.22,
subd. (b)(1).) Following the penalty phase, the jury returned a
verdict of death on November 5, 2007. The trial court denied
Tran’s motions for a new trial and for reduced punishment,
denied the automatic motion to modify the verdict (§ 190.4,
subd. (e)), and sentenced Tran to death.
This appeal is automatic. (§ 1239, subd. (b).) We strike
the gang enhancement but otherwise affirm the judgment.
I. FACTUAL BACKGROUND
Tran was tried jointly with Noel Plata. Both were
sentenced to death. Plata died on December 14, 2020, and we
ordered proceedings as to Plata abated, so we confine our review
to Tran’s claims only.
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A. Guilt Phase
1. Prosecution Case
a. The November 9, 1995, Robbery of the Park
Residence and Linda’s Death
In November 1995, Linda Park lived in Irvine with her
family: Sunhwa Park, her father; Dong Park, her mother; and
Janie Park, her older sister. Sunwha typically worked from
about 6:00 or 7:00 a.m. to about 8:00 p.m., while Dong typically
worked from about 4:00 p.m. to about 10:00 p.m. On November
9, 1995, Sunhwa spoke to Linda by telephone around 5:00 p.m.
to tell her that he would be home for dinner around 8:00 p.m.
After Linda spoke with Sunhwa, she spoke with Danny
Son, her classmate, by telephone between 6:00 p.m. to 7:00 p.m.
That evening, Linda was recording a greeting on Son’s pager
when someone arrived at the front door of the Park home. Son
testified that Linda told him to wait and that she put her phone
down. Linda seemed to be speaking to someone, Son recalled,
but he could not make out their voice, only hers. Son testified
that he heard Linda say, “What’s wrong? What’s your problem?
You need help?” Son thought that Linda might be speaking to
her sister, decided to hang up, and called her back about 30
minutes later, though only reached an answering machine.
Around 8:05 p.m., Sunhwa returned home. He noticed
that the front door was already unlocked and, upon entering the
home, discovered Linda in the living room. Linda was lying
prone with her hands and feet tied behind her, Sunhwa testified.
Sunhwa tried to call 911 but could not locate the telephone, so
he eventually ran to the home of his neighbor, Marilyn Fox, and
she called 911.
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Law enforcement officers arrived soon after. One officer,
Rolf Parkes, discovered Linda lying prone in the living room and
observed that her ankles and wrists were bound behind her back
with a nylonesque cord, that a grey electrical cord was wrapped
around her neck and connected to the nylonesque cord, and that
her vital signs were negative.
b. Crime Scene and Forensic Evidence
Sunhwa testified about valuables that were kept in their
home. He testified that he typically stored cash in a brown
jacket that was stored in a closet in their master bedroom. Janie
and Linda knew where the jacket was kept, and Sunhwa
allowed them to retrieve cash from it as needed. On November
9, 1995, Sunhwa said he had stored about $700 to $800 in this
jacket. Sunhwa also explained how his wife, Dong, typically
stored her jewelry inside boxes in the drawer of her makeup
table in the master bedroom, including on November 9, 1995.
Sunhwa also testified about his actions after he discovered
Linda’s body that evening. He ran to the master bedroom, where
he noticed his brown jacket on the closet floor.
Parkes retrieved this jacket later and confirmed with
Sunhwa that it was the jacket that typically contained money.
There was no money in the jacket when he found it, Parkes
testified. Parkes also explained how he observed two jewelry
boxes atop a coffee table in the living room where Linda was
found. An empty tray that looked like it belonged in one jewelry
box was also on this table. And another living room table had
various plants placed atop it, including a potted cactus that was
lying on its side. Parkes also testified that the rest of the home
was in a “very orderly, almost emaculate [sic] condition,”
without evidence of ransacking, including in the master
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bedroom. Nor was there evidence of a forced entry into the
home.
David Stoermer, a crime-scene investigator for the Irvine
Police Department, testified about various items in the Park
home and the attempt to collect fingerprints from it. He testified
that the electrical cord around Linda’s neck had a thermostat
device on it and that the cord had been cut on one end with
scissors or a knife. An empty heating pad box was found in the
TV room. This box displayed a picture of a heating pad and an
attached electrical cord that looked like the cord around Linda’s
neck, Stoermer testified. Yet no heating pad was found in the
home or in the garage. The twine with which Linda was bound
was not found in the home, there was no duct tape found there
either, and a pair of scissors and Linda’s pager were missing
from there too. Nor were any fingerprints recovered, including
from places like door-jambs and handles as well as from the
jewelry boxes found atop the coffee table.
Mary Hong, a forensic scientist with the Orange County
Sheriff’s Department, testified about DNA analysis that she had
performed for this case. She tested the electrical cord found on
Linda’s neck and did not discover any DNA relating to Tran or
Plata. Yet a portion of the twine that was used to bind Linda
showed a mixture of DNA from at least three people that was
consistent with Linda and Tran being contributors.
c. Linda’s Autopsy
Dr. Richard Fukumoto, a pathologist, testified that an
autopsy showed that Linda died by asphyxiation due to ligature
strangulation. The electrical cord was wrapped twice around
her neck. Among other injuries, Linda had indentations,
abrasions, and contusions on her neck, wrists, and feet;
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hemorrhaging and a bruise on her left cheek below her eye; and
two overlapping slash wounds on her neck. The injuries on her
left cheek, Fukumoto testified, could have been caused by a fist,
the palm of a hand, or the back of a hand. The injuries on her
wrists indicated that Linda tried to escape the binding,
Fukumoto continued. And the slash wounds could have been
caused by a knife or scissors and were not deep enough to kill
Linda immediately, though would have done so eventually.
Fukumoto testified that the facial injuries, the slash wounds,
and the binding would have happened before Linda was
strangled. Fukumoto also testified that pain is associated with
strangulation and that pain or stress can result in someone
urinating on themselves.
d. Tran’s and Plata’s Statements to Friends
Jin Ae Kang, Tien Tran, and Linda Le testified about
statements made by Tran and Plata. Some months after Linda’s
death, Kang learned that Tran told Tien Tran that he was
involved in murdering a girl in Irvine, that the girl had
recognized him, that she was bound, and that some cash and
gold items were taken from the girl’s home. At trial, Trien Tran
testified that he vaguely remembered that Tran had told him he
had killed somebody.
In an interview in January 2000, Linda Le told the police
about statements by Plata. There, Le told law enforcement
officers that she had overheard a conversation about “the
incident” between Plata and her boyfriend, Terry Tackett, in
which Tackett asked Plata if he had cleaned the knife. Le told
law enforcement officials that, a few days after the conversation
between Plata and Tackett, Plata was sad and upset and told
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her that he did not mean to do it and that he had robbed a house
and the girl was home.
e. Tran’s and Plata’s Conversations with Qui Ly
Qui Ly was a well-respected member of the V gang, a gang
allied with the VFL gang, and he testified about his various
conversations with Tran and Plata. In a conversation in a
Vietnamese restaurant, Plata told Ly about the murder of a
young girl in Irvine. Ly testified that, while Ly and Tran were
housed together at Anaheim City Jail from October 20, 1997, to
November 21, 1997, Tran told him about a murder of a young
girl in Irvine.
Later, Ly was convicted in 1999 for residential burglary
and faced a potential sentence of 31 years to life in prison
because of his prior strikes, so he decided to provide information
to law enforcement about criminal activities throughout
Southern California “to get some consideration on [his]
sentence.” In October 1999, Ly told Ronald Seman, an
investigator on the Orange County District Attorney’s Office’s
regional gang enforcement team, about Tran’s and Plata’s
statements.
Based on this information, Seman arranged to place Ly in
a cell in the Santa Ana jail so that he could speak with Tran and
Plata separately. On February 28, 2001, Ly was first placed in
a cell with Tran and then placed in one with Plata. Microphones
were hidden behind a toilet paper holder in the cell, and the
conversations were recorded. Portions of these conversations
were played for the jury, and we discuss them below.
f. Joann Nguyen’s Testimony
Joann Nguyen was Tran’s girlfriend in 1995 and testified
about Linda, Tran, Plata, and the robbery. Nguyen was friends
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with Linda in high school, and they attended Irvine Valley
College, where they drifted apart. When Tran asked if Nguyen
knew anyone with money or jewelry, Nguyen said that Linda
had some, and she drove Tran by Linda’s home after he said that
he was going to rob Linda. Nguyen said that Linda had never
told her where her father kept money or her mother kept
jewelry.
On November 9, 1995, Tran arranged to switch cars with
Nguyen at a parking lot, telling her that his car would look too
suspicious in the Parks’ neighborhood. Tran and Plata drove off
in Nguyen’s car around 7:00 p.m. that night and returned a few
hours later, around 9:30 p.m. to 10:00 p.m. When they returned,
Nguyen noticed that Tran and Plata moved a blanket from her
car to Tran’s car and that Tran and Plata appeared anxious and
hyper. Tran told Nguyen that they had robbed and killed Linda.
Later, Tran told Nguyen that Linda was killed because
Tran did not want her to identify him, and Tran told Nguyen
that money and jewelry were taken from the Park home. After
Linda’s death, Tran received a new tattoo on the side of his neck,
which he told Nguyen said “forgive me” in Korean.
g. Gang Evidence
At the guilt phase, the prosecutor called Mark Nye to
testify as a gang expert about gang culture, the VFL gang,
Tran’s and Plata’s membership in the VFL, and how a
hypothetical robbery like this one may support a criminal street
gang. Vietnamese gangs, Nye testified, are not turf oriented
because their members typically do not live in the same area.
“Most of the Asian gangs are in it for the economic gain,” Nye
said, and he explained how each gang member has an assigned
role during a crime that they are expected to fulfill.
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The VFL gang, Nye continued, was formed in the early
1990s and began by committing petty crimes, though became
affiliated with the “V” gang, a violent gang that specialized in
home-invasion robberies. Eventually, VFL members began
robbing homes and cars, sold weapons, possessed narcotics,
extorted business throughout the Gardena and Hawthorne area,
and murdered or attempted to murder rival gang members. Nye
opined that the VFL was a criminal street gang in November
1995, with about 20 to 30 members, whose primary activities
were residential burglary, attempted murder, and murder. In
reaching this opinion, Nye relied on documents and reports
about crimes committed by certain VFL members.
Nye also opined that Tran and Plata were members of and
actively participated in the VFL in November 1995. In
answering the prosecutor’s question about a hypothetical case
like this one, Nye opined that both individuals would be
expected to support one another during the crime and that
robbery, burglary, and murder would have been done for the
benefit of, at the direction of, and in association with that
criminal street gang. The gang supports itself with proceeds
from criminal activity, and crimes enhance the gang’s and the
gang members’ reputations.
2. Defense Case
Neither Tran nor Plata called any witnesses to testify
during the guilt phase of their trial, though both challenged the
testimony of various witnesses via cross-examination.
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B. Penalty Phase
1. Prosecution Case
a. Prior Bad Acts
On June 24, 1992, David Schonder, who lived in Mission
Viejo, reported that jewelry, camera equipment, a telephone,
and a video camera were missing from his home. Three latent
fingerprints recovered from his home were identified as Tran’s,
and Tran admitted an allegation in a juvenile petition that he
had committed this residential burglary.
On June 26, 1992, a California Highway Patrol officer
detained Tran and David Du after arriving at the scene of a car
accident and hearing that one of the people involved in the
accident had dropped a metal box in the trash. The metal box
contained paperwork belonging to David Nesthus. Tran was
taken to an Orange County Sheriff’s station, where he told an
officer that he and two others stole a television, a camcorder,
about 150 quarters from a coin-filled jug, some fake jewelry, and
a Nintendo video game from the Nesthus home. Tran later
admitted an allegation in a juvenile petition that he had
committed this residential burglary.
On April 19, 1994, Darin Urabe discovered that a Smith
Corona word processor, a computer, and a camcorder were
missing from his Huntington Beach home. The home’s garage
door was open, and a baby seat and a spare tire that did not
belong to the Urabes was in the garage. The day after, on April
20, 1994, Tran and Linda Vu were arrested after a car chase
prompted by an Orange County detective’s discovery that Tran
and Vu were in a stolen car. During this car chase, Tran drove
against traffic, ran a red light, drove about 45 to 50 miles per
hour in a store parking lot, and drove about 90 miles an hour in
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a residential area. The trunk of the car that Tran had driven
contained stereos, a Smith Corona word processor, and
amplifiers, among other items. For this, Tran was convicted of
residential burglary (§ 459) and evading a police officer (Veh.
Code, §§ 2800.2, 10851).
b. Victim Impact Evidence
At the penalty phase, the prosecutor called Sunhwa,
Linda’s father; Janie, her sister; and Fox, her neighbor, to testify
about the impact of Linda’s death. Their testimony was
sometimes accompanied by photographs or videos of Linda or
her personal items, as discussed below. (Post, pt. IV.C.)
2. Defense Case
a. Cultural Expert
Tran’s counsel called Jeanne Nidorf, a cultural expert and
consultant with a background in psychology and public health,
to testify about Tran from his childhood to his adulthood. Tran
was born in a refugee camp in Arkansas before moving with his
family to California. Tran’s father is a machinist; his mother,
an electronic assembler. Nidorf said that Tran’s parents’
relationship was confrontational, explaining that Tran’s
mother, Cam, was “a sort of verbally abusive, somewhat cruel,
sometimes bizarre, self-centered, histrionic woman.” Nidorf
recounted how Tran’s mother would discipline him as a child,
including by holding him over a tub filled with hot water and
threatening to drop him in if he did not behave. Cam often drew
comparisons between Tran and his older brother, Hung Tran,
who Cam thought had achieved more. Nidorf said that Tran
called his family life “gloomy,” and she explained how Tran was
attracted to the VFL because it allowed him to escape family
pressures.
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Nidorf also discussed Tran’s actions following Linda’s
death. After her death, Tran attended a motivational seminar
and became more respectful to his parents. In 1998 or 1999,
Tran met Kathy Nguyen, and they had a son together. Nidorf
explained that Tran changed after his son was born; he
remained employed and was not involved in criminal activity.
And Nidorf asked Tran why he got the tattoo on the side of his
neck that said “forgive me”; she said that “he looked down and
he said ‘I — I don’t know why.’ ”
b. Testimony of Family and Friends
Hung Tran, Tran’s older brother, testified about their
upbringing and Tran’s character. They were “latchkey kids”
because their parents worked so much, Hung remarked, though
they grew apart as they grew older and their interests diverged.
In 1996, Hung gifted Tran the opportunity to attend the
motivational seminar. After the birth of Tran’s son, Tran was
“very responsible” and “was at home almost all the time,” Hung
said.
Besides Hung, 10 other family or friends testified about
their experiences with Tran and his positive qualities. For
instance, Thu Thi Tran, Tran’s cousin, testified that she had
known Tran all her life and that he had always “been a
sweetheart” and had “a lot of respect” for her. Thao McGrath,
Tran’s cousin, testified that Tran “was a normal kid” who had
“never got into fights.” And Tony Bui, Tran’s uncle, recalled that
Tran was “very friendly” and a “nice person” and that Cam loved
Tran “but [didn’t] know how to raise him.”
3. Juror No. 7’s Typewritten Document
After the jury returned its penalty determinations, a
three-page typewritten document was found in the jury room in
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a folder containing the jury instructions. This document was
written by the penalty foreperson, Juror No. 7, and we discuss
it below.
II. PRETRIAL ISSUES
A. Removing Prospective Jurors by Stipulation
Tran first claims that the trial court improperly allowed
the parties to remove prospective jurors from the jury pool by
allowing the parties to stipulate to their removal based on their
answers to a written questionnaire.
1. Facts
During jury selection, the prosecutor prepared a written
questionnaire for prospective jurors to complete. Neither Tran’s
nor Plata’s counsel objected to this questionnaire. After counsel
reviewed the questionnaires, they identified 20 prospective
jurors whom they agreed to excuse for cause without
questioning them. The prosecutor read the prospective jurors’
numbers aloud in court, counsel stipulated to their removal, and
the court excused them.
2. Analysis
Tran argues that excusing these 20 prospective jurors in
this way violates the random-selection provisions of Code of
Civil Procedure section 222, the initial-examination provisions
of Code of Civil Procedure section 223, and the jury-trial policy
of Code of Civil Procedure section 191.
Under Code of Civil Procedure, section 222, subdivision
(a), courts must “randomly select the names of the jurors for voir
dire, until the jury is selected or the panel is exhausted.” (See
People v. Flores (2020) 9 Cal.5th 371, 383 (Flores).) Under Code
of Civil Procedure section 223, subdivision (a), trial judges “shall
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conduct an initial examination of prospective jurors” “[t]o select
a fair and impartial jury in a criminal jury trial.” (See Flores, at
p. 383.) And Code of Civil Procedure section 191 spells out
California’s jury-trial policy: Among other things, jurors must
be randomly selected, all qualified persons must have an equal
opportunity to be considered for jury service, and all qualified
persons must serve as jurors when summoned. (See People v.
Visciotti (1992) 2 Cal.4th 1, 38.)
We “have consistently rejected similar challenges to the
excusal of jurors under similar mutually agreed-upon
prescreening procedures. ‘A court may allow counsel to screen
juror questionnaires and stipulate to juror dismissals.’
[Citations.] Further, ‘a stipulation to the excusal of jurors
forfeits any subsequent objection to their omission from the jury
pool.’ ” (Flores, supra, 9 Cal.5th at p. 384; see also id. at pp. 383–
384 [rejecting argument that defendant had not forfeited
challenge to prospective juror prescreening procedure despite
defendant’s invocation of Civ. Code, § 3513].) Because Tran
agreed to this questionnaire procedure below, he has forfeited
his claim here.
Even if Tran’s claim was preserved, it lacks merit.
“Contrary to defendant’s argument, neither Code of Civil
Procedure section 222 nor section 223, subdivision (a) forbids
the prescreening procedure employed in this case. Section 222
requires random selection of prospective jurors for voir dire but
says nothing about prescreening through a questionnaire.
Section 223, subdivision (a), which requires the trial court to
conduct an initial examination of prospective jurors, does not
bar the court from exercising its discretion to allow counsel to
prescreen jurors and stipulate to dismissals.” (Flores, supra, 9
Cal.5th at p. 384.)
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Nor do Tran’s remaining arguments fare any better. He
contends that the questionnaire procedure used here “allows the
parties to trade discriminatory removal of potential jurors.” But
he “has not alleged that any of the stipulated removals were
discriminatory.” (Flores, supra, 9 Cal.5th at p. 384.)
He asserts that this procedure undermines his right to a
jury selected from a fair cross-section of the community. But he
has not “adequately explain[ed] how permitting him to stipulate
to the dismissal of certain jurors could have undermined his
right to trial by a jury selected from a fair cross-section of the
community.” (Flores, supra, 9 Cal.5th at p. 384.)
And Tran argues that this procedure “frustrates the public
policy requiring that voir dire be open to the public.” But “voir
dire in this case was open to the public; the trial court simply
permitted the parties to stipulate to the removal of certain
jurors based on their written questionnaire responses. Having
agreed to this procedure, defendant may not now complain that
it violated his right to a public trial.” (Flores, supra, 9 Cal.5th
at p. 384.)
In sum, we conclude that the trial court did not err by
excusing prospective jurors according to the parties’ stipulation
to remove jurors based on their responses to this written
questionnaire.
B. Challenge to the “Substantial Impairment”
Standard
Next, Tran claims that the so-called substantial
impairment standard used to excuse prospective jurors for their
views on capital punishment is inconsistent with the impartial-
jury guarantees under the state and federal Constitutions. Tran
asserts that the trial court “presumably” excused Prospective
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Jurors No. 112, 158, 214, and 234 for cause because of their
views on the death penalty.
“The state and federal Constitutions guarantee a criminal
defendant the right to a trial by an impartial jury.” (People v.
Martinez (2009) 47 Cal.4th 399, 425.) “ ‘ “A prospective juror
may be challenged for cause based upon his or her views
regarding capital punishment only if those views would
‘ “prevent or substantially impair” ’ the performance of the
juror’s duties as defined by the court’s instructions and the
juror’s oath.” ’ ” (People v. Suarez (2020) 10 Cal.5th 116, 137
(Suarez); see also Wainwright v. Witt (1985) 469 U.S. 412;
Witherspoon v. Illinois (1968) 391 U.S. 510.)
Tran does not challenge how the standard was applied
here; he does not argue that the standard was wrongly applied
to excuse a prospective juror who should not have been excused
under the standard. Rather, Tran asks us to reconsider the
substantial-impairment standard itself primarily in light of the
founding-era history of the guarantee to an impartial jury, as
the high court has done in the context of other Sixth Amendment
doctrines in decisions from Jones v. United States (1999) 526
U.S. 227 to Blakely v. Washington (2004) 542 U.S. 296. This
history, Tran says, reveals that the framers intended the
impartial-jury guarantee to prohibit the excusal of prospective
jurors because of their views on the death penalty.
Tran did not object to the excusal of Prospective Jurors No.
112, 158, 214, and 234, but the Attorney General does not argue
he has forfeited the claim. A challenge to the substantial
impairment standard would have been futile in any event
because at the time of Tran’s trial, as now, the substantial
impairment standard was supported by binding precedent. We
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typically excuse failures to raise futile objections. (People v.
Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.) Regardless, we
decline to reconsider our decisions here. Tran recognizes that
we have rejected this challenge in People v. Rices (2017) 4
Cal.5th 49 (Rices). There, we rejected defendant’s argument
that the substantial-impairment standard should be abandoned
and “replaced with a new rule prohibiting the trial court from
excusing prospective jurors due to their views on the death
penalty.” (Rices, at pp. 79–80.) But the high court, we
explained, “developed that standard and has recently reiterated
it. [Citation.] If that standard is to be abandoned or modified,
and death qualifying the jury prohibited, it is up to that court to
do so.” (Id. at p. 80; see also Suarez, supra, 10 Cal.5th at p. 138
[“ ‘We may not depart from the high court ruling as to the United
States Constitution’ ”].) And as recently as last year, “we have
considered and rejected claims that the death qualification
process is unconstitutional.” (Suarez, at p. 138; see id. at
pp. 137–140 [summarizing and rejecting many constitutional
challenges to the death-qualification process].)
Nor do we accept Tran’s request to revisit the substantial-
impairment standard in light of the jury-trial right under article
I, section 16, of the California Constitution. We “have long
adopted the Witt rule as also stating the standard under the
California Constitution.” (Rices, supra, 4 Cal.5th at p. 80, citing
People v. Ghent (1987) 43 Cal.3d 739, 767 [“Because we think
Witt’s review standard and underlying rationale make good
sense, and because California courts have generally followed the
teachings of the high court in determining when a prospective
juror properly may be excused for cause because of his views
regarding capital punishment, we adopt the Witt standard.”].)
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As Tran recognizes, “past California cases make clear ‘that
the state constitutional right to a jury trial “is the right as it
existed at common law in 1850, when the [California]
Constitution was first adopted.” ’ ” (Shaw v. Superior Court
(2017) 2 Cal.5th 983, 994–995.) Tran relies on founding-era
materials, relating to the federal Constitution, to support his
state constitutional claim, but fails to persuade us that these
materials reflected the state of the common law as it existed in
1850.
In sum, we reject Tran’s challenge to the substantial-
impairment standard.
III. GUILT PHASE CLAIMS
A. Motion To Sever and Limiting Instruction
Tran argues that the trial court erroneously decided
against severing his case from Plata’s. Tran’s argument centers
on out-of-court statements that Plata made. Some of these
statements incriminated Plata but implied that Tran had
actually killed Linda. Others incriminated Plata and implied
that Plata was the actual killer. Yet the guilt jury was
instructed to consider Tran’s and Plata’s out-of-court statements
“only against the defendant making the statements and not
against the other defendant.” The admission of these
statements together with this limiting instruction, Tran
contends, violated the Aranda-Bruton doctrine, rendered his
trial fundamentally unfair, and requires reversal of his
conviction and sentence.
1. Facts
Before trial, Tran moved to sever his case from Plata’s
partly over concerns that the prosecutor would introduce certain
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statements that Plata made before trial. But the trial court
denied this motion.
Later, during the guilt phase of the trial, the trial court,
defense counsel, and the prosecutor discussed the prosecutor’s
plan to have Qui Ly testify. The prosecutor explained that he
intended to introduce conversations between Ly and Plata and
between Ly and Tran. These conversations happened on
February 28, 2001 before either the complaint or the
information had been filed against Tran or Plata and while Ly,
Tran, and Plata were incarcerated in the Santa Ana jail.
The trial court decided to allow the jury to hear these
conversations and, at the end of the guilt phase, to instruct the
jury with a version of CALCRIM No. 305. This instruction said:
“You have heard evidence that each of the two defendants made
statements out of court and before the trial. You may consider
that evidence only against the defendant making the statements
and not against the other defendant.” Tran’s counsel did not
request this instruction at the penalty phase, nor was it
otherwise given.
In light of the trial court’s decision to allow the jury to hear
these statements by Plata, Tran’s counsel believed that the trial
court’s “other remedy is to declare a mistrial as to Mr. Tran and
allow him to have a separate trial” and moved for a mistrial,
which the trial court denied.
So Ly testified about, and the jury heard, his recorded
jailhouse conversations with Tran. In these conversations, Tran
told Ly that he had been arrested for a murder in Irvine. Ly
asked: “They got you for this murder, you think they got you
good?” Tran replied: “I don’t know dog. You know I don’t even
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know what they got on me. You know if Noel’s talking you know,
I’m screwed, that’s all I got to say. That’s the only way.”
Ly then asked: “But who killed her, you or him?” Tran
did not respond verbally. Ly testified that Tran had pointed to
himself and nodded his head. Then Ly replied: “Man, you idiot.”
Tran replied: “Yeah, I know, I know man. Now I gotta live with
it.” Ly testified that Tran’s gesture was why he had replied
with, “Man, you idiot.” Ly later asked: “Man. What the fuck,
fuck, you take her out for, you idiot?” Tran replied: “I don’t
know what to say, man. Tie ’em up, you know. What can you
do?”
Ly also asked: “Was it worth it?” Tran replied: “Nah.” “It
was supposed to be worth it,” Tran said, explaining that it was
supposed to be worth “about ten.” “[T]en was attractive to a
nineteen year old dog” “driving a 1979 beat up car,” Tran stated.
“No matter what, you know what I’m saying? No matter what
happens, you know, ‘Co Chai Co Chieu[.]’ That’s the way
America is dog. I got to accept it. Can’t live in denial dog,” Tran
continued. Ly responded: “If you do it, you have to accept it.”
Tran replied: “Yeah, I can handle it dog.” The prosecutor asked
Ly what “Co Chai Co Chieu” meant; Ly testified that it was a
Vietnamese saying that meant, “You play, you pay and accept.”
Later, when Ly said, “They don’t, you don’t have none of that
girl’s property at your house do you,” Tran laughed and said,
“Dude, come on now, it’s all good, it’s all good.”
Ly also testified about, and the jury heard some of, his
recorded jailhouse conversations with Plata. Besides these
snippets that the jury heard, the prosecutor also asked Ly about
parts of his jailhouse conversation with Plata that had not been
played for the jury. “Mr. Ly,” the prosecutor said, “in your taped
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conversation with Mr. Plata” — which the jury had not heard —
“did Mr. Plata tell you that he was there in Irvine at the
residence; he was involved in the robbery but he did not do this
murder?” “Yes,” Ly replied.
The prosecutor then asked: “Did Mr. Plata tell you that
he was there in Irvine for the robbery but he did not strangle
the victim?” “Yes,” Ly replied.
The prosecutor continued: “In your conversation with Mr.
Plata, in reference to the murder, did he say something to you
that there was nothing he could do in connection with the
murder of Linda Park?” “Yes,” Ly replied.
And the prosecutor asked: “Did he tell you in connection
with the murder of Linda Park and what he did, that he was
pissed off, and that he had to go back inside the house to take
something off?” “Yes,” Ly replied.
On recross-examination, Tran’s counsel asked Ly about a
conversation between Ly and Plata that happened in a
restaurant in 1996, which Plata had later reported to law
enforcement. Ly testified that he had remembered telling law
enforcement that he had asked Plata during this conversation if
Plata had killed Linda and that “Plata admitted to him that
[Plata] had killed the Korean girl.” Ly also testified that he
remembered telling law enforcement that Plata told him “that
he[, Plata,] had to do it.”
On redirect examination, Ly stated Plata had said that he
“was involved in it” and “was there,” from which Ly “initially
assumed that he’s the one that did it.”
In another recorded conversation, Plata told Ly that
Tran’s neck tattoo — which Tran had received after Linda’s
death — was meant to convey “blow me” or “suck me.” Later,
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the parties stipulated that this tattoo’s Korean-to-English
translation was “forgive.”
2. Analysis
Although section 1098 expresses a general preference that
codefendants be tried jointly, a trial court may try such
defendants separately if one defendant’s incriminating
confession implicates a codefendant, if a joint trial seriously
risks compromising one defendant’s trial right, or if a joint trial
seriously risks preventing the jury from reliably determining
the defendants’ guilt or innocence, among other reasons. (People
v. Homick (2012) 55 Cal.4th 816, 848 (Homick).) Underlying
Tran’s arguments about severance is an argument that he was
constitutionally entitled to severance to preserve his Sixth
Amendment confrontation rights. Whether our review is de
novo (People v. Cromer (2001) 24 Cal.4th 889, 901; People v.
Washington (2017) 15 Cal.App.5th 19, 26 [reviewing de novo
claims that the defendant was entitled to severance under
Aranda-Bruton and due process]) or for abuse of discretion, we
find no error.
Tran and Plata “were ‘charged with having committed
“common crimes involving common events and victims,” ’
presenting a ‘ “ ‘classic case’ ” for a joint trial.’ ” (Homick, supra,
55 Cal.4th at p. 849.)
Still, Tran argues that the admission of Plata’s statements
to Ly that implied that Tran actually killed Linda violated his
Sixth Amendment confrontation clause rights under the
Aranda-Bruton doctrine. (People v. Aranda (1965) 63 Cal.2d
518; Bruton v. United States (1968) 391 U.S. 123.) Recall that
Plata had allegedly said that he was involved in the Irvine
robbery but “did not do this murder,” “did not strangle the
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victim,” could do “nothing” “in connection with the murder of
Linda Park,” and “was pissed off.” (Ante, pt. III.A.1.) The
Aranda-Bruton doctrine “addresses a specific issue that arises
at joint trials when the prosecution seeks to admit the out-of-
court statement of a nontestifying defendant that incriminates
a codefendant,” and prevents such a statement’s admission even
if a limiting instruction is given to the jury. (People v.
Capistrano (2014) 59 Cal.4th 830, 869 (Capistrano).)
As the Attorney General persuasively argues, however,
the confrontation clause issues addressed by the Aranda-Bruton
doctrine only applies to testimonial statements after Crawford
v. Washington (2004) 541 U.S. 36 and its successors. In
Crawford, “the United States Supreme Court held that the
confrontation clause of the federal Constitution generally bars
the admission of what it termed ‘testimonial’ hearsay when
offered by the prosecution against a criminal defendant without
a showing of witness ‘unavailability and a prior opportunity for
cross-examination.’ ” (People v. Valencia (2021) 11 Cal.5th 818,
830 (Valencia).)
The Crawford court “ ‘dramatically departed’ ” from
confrontation clause precedent, which had generally permitted
statements of unavailable witnesses to be admitted at trial so
long as these statements were reliable enough. (People v.
Pearson (2013) 56 Cal.4th 393, 462.) Although it took no firm
stand on the matter in Crawford, “the high court has
nonetheless emphasized that only hearsay statements that are
‘testimonial’ are subject to the confrontation clause.” (People v.
Fayed (2020) 9 Cal.5th 147, 168 (Fayed).) In Davis v.
Washington (2006) 547 U.S. 813, 824 (Davis), the high court
explained that testimonial statements “must fairly be said to
mark out not merely” the “ ‘core’ ” of the confrontation clause,
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Opinion of the Court by Liu, J.
“but its perimeter.” And about a year later, in Whorton v.
Bockting (2007) 549 U.S. 406, 420, the high court remarked that
“the Confrontation Clause has no application” to nontestimonial
statements.
The upshot of this departure is that the Sixth Amendment
protections under the Aranda-Bruton doctrine, whatever their
reach before, are confined to testimonial statements now. We
have said as much before. In People v. Cortez (2016) 63 Cal.4th
101, 129, the defendant argued that the trial court’s admission
of a codefendant’s statements to a witness that incriminated the
defendant “violated her Sixth Amendment right to confront and
cross-examine witnesses,” mainly relying on Bruton. But we
rejected this argument because Bruton “involved a nontestifying
codefendant’s hearsay statement” that was inadmissible under
traditional rules of evidence, whereas this codefendant’s
statement was admitted as a statement against penal interest.
(Cortez, at p. 129.) We also observed that “the high court
unequivocally held ‘that the confrontation clause applies only to
testimonial hearsay statements and not to [hearsay] statements
that are nontestimonial.’ ” (Ibid., quoting People v. Geier (2007)
41 Cal.4th 555, 603.)
Other courts, state and federal alike, have said as much
too. Our Courts of Appeal have held that Crawford narrowed
confrontation clause rights under the Aranda-Bruton doctrine
to testimonial statements only. (E.g., People v. Gallardo (2017)
18 Cal.App.5th 51, 69; People v. Arceo (2011) 195 Cal.App.4th
556, 575.) Every federal court of appeals that has confronted
this issue has concluded that Bruton is inapplicable to
nontestimonial hearsay after Crawford. (U.S. v. Figueroa-
Cartagena (1st Cir. 2010) 612 F.3d 69, 85 (Figueroa-Cartagena);
U.S. v. Williams (2d Cir. 2007) 506 F.3d 151, 156; U.S. v. Berrios
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Opinion of the Court by Liu, J.
(3d Cir. 2012) 676 F.3d 118, 128; U.S. v. Benson (4th Cir. 2020)
957 F.3d 218, 233; U.S. v. Vasquez (5th Cir. 2014) 766 F.3d 373,
378–379; U.S. v. Johnson (6th Cir. 2009) 581 F.3d 320, 325; U.S.
v. Avila Vargas (8th Cir. 2009) 570 F.3d 1004, 1008–1009;
Lucero v. Holland (9th Cir. 2018) 902 F.3d 979, 988 (Lucero);
U.S. v. Clark (10th Cir. 2013) 717 F.3d 790, 815–816; U.S. v.
Wilson (D.C. Cir. 2010) 605 F.3d 985, 1016.) And other
jurisdictions have concluded similarly. (Fisher v.
Commonwealth (Ky. 2021) 620 S.W.3d 1, 8; State v. Nieves (Wis.
2017) 897 N.W.2d 363, 366; State v. Wilcoxon (Wash. 2016) 373
P.3d 224, 229; Burnside v. State (Nev. 2015) 352 P.3d 627, 643;
State v. Payne (Md. 2014) 104 A.3d 142, 162; State v. Gurule
(N.M. 2013) 303 P.3d 838, 848–849; Thomas v. U.S. (D.C. 2009)
978 A.2d 1211, 1224–1225.)
Even so, Tran asserts that the Aranda-Bruton doctrine
continues to apply to nontestimonial hearsay statements
because this doctrine has “fundamentally different purposes”
than Crawford. Crawford, Tran says, concerns the admissibility
of hearsay, whereas Bruton concerns the prejudicial effect of
inadmissible hearsay on a jury. But “both Bruton and Crawford
have the same origins — the importance placed on cross-
examination in the Confrontation Clause, and the prejudice
defendants face when they are unable to cross-examine
‘powerfully incriminating’ statements.” (Lucero, supra, 902 F.3d
at p. 987.) “Crawford,” as the Ninth Circuit has explained,
“concluded after a historical analysis that the Confrontation
Clause was concerned only with certain kinds of out-of-court
statements — those derived from interrogations and other
forms of ‘the civil-law mode of criminal procedure.’ ” (Ibid.)
“Bruton’s narrower focus,” on the other hand, “was on whether
statements that would otherwise violate the Confrontation
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Opinion of the Court by Liu, J.
Clause may be introduced in a joint trial. Its holding —
essentially, that such statements may not be introduced if the
defendant is identifiable — does not define, or redefine, the
basic scope of the Confrontation Clause’s protections.” (Ibid.)
But even if Tran’s characterization of the respective
purposes of Crawford and Bruton is sound, his argument comes
up short: The fact that the confrontation clause may serve
different purposes — even fundamentally different ones — does
not answer the question of whether its protections apply in the
first place. (See Figueroa-Cartagena, supra, 612 F.3d at p. 85
[“The threshold question in every case is whether the challenged
statement is testimonial.”].)
In sum, because the confrontation clause applies only to
testimonial hearsay statements, the Aranda-Bruton doctrine’s
Sixth Amendment protections likewise apply only to testimonial
hearsay statements. “Generally speaking, a declarant’s hearsay
statement is testimonial if made ‘with a primary purpose of
creating an out-of-court substitute for trial testimony.’ ” (Fayed,
supra, 9 Cal.5th at p. 168.)
Here, none of Plata’s challenged statements are
testimonial. Plata and Ly’s recorded jailhouse conversations
were not testimonial because Plata did not know that Ly was a
confidential informant and because he did not anticipate that
his statements would be used in a criminal proceeding. Under
these circumstances, such “[p]rivate communications between
inmates are not testimonial . . . .” (People v. Hajek and Vo (2014)
58 Cal.4th 1144, 1214 (Hajek and Vo); see also Davis, supra, 547
U.S. at p. 825 [observing that statements made unwittingly to a
Government informant “were clearly nontestimonial”]; U.S. v.
Smalls (10th Cir. 2010) 605 F.3d 765, 778 [defendant’s “recorded
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Opinion of the Court by Liu, J.
statement to [the confidential informant], known to [defendant]
only as a fellow inmate, is unquestionably nontestimonial”].)
Nor was Plata and Ly’s 1996 conversation in a restaurant
testimonial, for “ ‘a person who makes a casual remark to an
acquaintance’ ” — like two acquaintances conversing in a
restaurant — does not bear testimony “ ‘in a sense’ ” that “ ‘[a]n
accuser who makes a formal statement to government officers’ ”
does. (Davis, at p. 824; see also People v. Armstrong (2019) 6
Cal.5th 735, 790 (Armstrong).)
Separate and apart from his Aranda-Bruton claim, Tran
argues that the trial court’s limiting instruction violated state
law and federal due process. Had his case been severed, Tran
asserts, he would have been able to admit Plata’s self-
incriminating statements as declarations against penal interest
under Evidence Code section 1230, thereby advancing his
argument that Plata was the actual killer without being
hampered by a limiting instruction like the one used here. So
the trial court should have severed his case or, failing that,
modified the limiting instruction to allow the jury to consider
Plata’s self-incriminating statements in determining whether
Tran was the actual killer. But Tran neither moved for
severance on this ground nor objected to or requested a
modification of this limiting instruction below, so he has
forfeited these challenges here. (People v. Nieves (2021) 11
Cal.5th 404, 433, 436–437 (Nieves).)
Lastly, Tran cursorily argues that admitting Plata’s
statements implying that he was not the actual killer and that
Tran was unremorseful violated the Eighth Amendment’s
heightened reliability requirement in capital cases. But Tran
did not object to their admission for this reason below, so he has
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Opinion of the Court by Liu, J.
forfeited this constitutional claim here. (Nieves, supra, 11
Cal.5th at p. 433.)
B. Instructional Errors
Tran argues that four of the trial court’s instructions to
the guilt jury concerning the testimony of an in-custody
informant and of an accomplice — versions of CALCRIM Nos.
301, 335, 336, and 358 — prejudicially violated his
constitutional rights to present a defense and to proof beyond a
reasonable doubt.
1. Facts
As noted, the prosecutor called Qui Ly, the in-custody
informant, and Joann Nguyen, the accomplice, to testify at the
guilt phase. Ly testified about conversations between him and
Plata and between him and Tran, among other testimony. Ly
testified about conversations between him and Plata while both
were incarcerated in 2001 and while they were in a restaurant
in 1996. As noted, some of Plata’s statements in these
conversations implied that Plata actually killed Linda, while
others implied that Tran was the actual killer. Ly testified that
Plata told him that Tran’s neck tattoo meant “blow me” or “suck
me.” And Ly testified about recorded jailhouse conversations
between him and Tran, in which Tran seemingly pointed to
himself and nodded his head when Ly asked him who had killed
Linda.
Nguyen testified about a conversation between her and
Tran, in which Tran discussed his neck tattoo that he had
received after Linda’s death. The prosecutor asked Nguyen:
“[W]hat did Mr. Tran tell you that this tattoo says?” Nguyen
answered: “Forgive me,” and testified that Tran told her that the
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tattoo was written in Korean. Later, counsel stipulated that this
tattoo’s Korean-to-English translation “means ‘forgive.’ ”
The trial court instructed the guilt jury with versions of
CALCRIM Nos. 301, 335, 336, and 358, among other
instructions. CALCRIM No. 301 said in relevant part: “Except
for the testimony of Joanne Nguyen, which requires supporting
evidence, the testimony of only one witness can prove any fact.”
CALCRIM No. 335, concerning accomplice testimony,
stated in relevant part: “You may not convict the defendant of
Murder or find any of the special circumstances or enhancement
to be true based on the testimony or statement of an accomplice
alone.” Such a statement or testimony could be used for these
purposes only if that statement or testimony was “supported by
other evidence that you believe,” was “independent of the
accomplice’s testimony or statement,” and “tend[ed] to connect
the defendant to the commission of the crime.” This instruction
also said: “Any testimony or statement of an accomplice that
tends to incriminate the defendant should be viewed with
caution.”
CALCRIM No. 336, concerning in-custody informants,
instructed the jury that Qui Ly was an in-custody informant. It
also said in relevant part: “The testimony of an in-custody
informant should be viewed with caution and close scrutiny.”
And CALCRIM No. 358, concerning statements by
defendants, stated in relevant part: “You have heard evidence
that the defendant made oral or written statements before the
trial. . . . It is up to you to decide how much importance to give
to such statements.” This instruction also said: “You must
consider with caution evidence of a defendant’s oral statement
unless it was written or otherwise recorded.”
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Neither Tran’s nor Plata’s counsel objected to these jury
instructions.
2. Analysis
“In assessing a claim of instructional error or ambiguity,
we consider the instructions as a whole to determine whether
there is a reasonable likelihood the jury was misled.” (People v.
Tate (2010) 49 Cal.4th 635, 696.) Defense counsel did not object
to CALCRIM Nos. 301, 335, 336, and 358. Yet to the extent that
Tran “argues that the trial court erred in instructing the jury in
a way that affected his substantial rights,” Tran’s “argument
may still be heard on appeal.” (People v. Ramirez (2021) 10
Cal.5th 983, 1000 (Ramirez).)
Tran argues that these instructions prejudicially violated
his constitutional rights to present a defense and to proof beyond
a reasonable doubt under Cool v. United States (1972) 409 U.S.
100 (Cool). This is so, Tran asserts, because CALCRIM Nos.
335, 336, and 358 instructed the jury to view certain statements
with caution (so-called cautionary instructions) and because
CALCRIM No. 335 instructed the jury that an accomplice’s
inculpatory statement testimony must be supported by
independent evidence (a so-called corroboration instruction).
But Tran overreads Cool. There, the high court held
unconstitutional a jury instruction that directed the jury to give
an accomplice’s testimony “ ‘the same effect as you would to a
witness not in any respect implicated in the alleged crime’ ” if
“ ‘the testimony carries conviction and you are convinced it is
true beyond a reasonable doubt.’ ” (Cool, supra, 409 U.S. at
p. 102.) Because such an instruction allowed “the jury to convict
despite its failure to find guilt beyond a reasonable doubt,” the
high court explained, it improperly burdened the defense. (Id.
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at p. 103.) “No constitutional problem is posed when the judge
instructs a jury to receive the prosecution’s accomplice
testimony ‘with care and caution,’ ” the high court observed, but
“there is an essential difference between instructing a jury on
the care with which it should scrutinize certain evidence in
determining how much weight to accord it and instructing a
jury, as the judge did here, that as a predicate to the
consideration of certain evidence, it must find it true beyond a
reasonable doubt.” (Id. at pp. 103, 104.)
Here, unlike in Cool, none of the challenged instructions
required the jury to find certain evidence true beyond a
reasonable doubt before it may be considered alongside other
evidence. The cautionary instructions simply instructed the
guilt jury “on the care with which it should scrutinize certain
evidence in determining how much weight to accord it.” (Cool,
supra, 409 U.S. at p. 104.) We have discerned “no conflict”
between cautionary instructions and “the requirement of proof
beyond a reasonable doubt.” (People v. Diaz (2015) 60 Cal.4th
1176, 1184; see also People v. Bivert (2011) 52 Cal.4th 96, 118–
121.) Nor did Cool address corroboration instructions, and we
have upheld them regularly (e.g., People v. Hoyt (2020) 8 Cal.5th
892, 946) while rejecting Cool-based challenges to accomplice
instructions (People v. Lawley (2002) 27 Cal.4th 102, 161–162).
Cool aside, Tran also argues that these versions of
CALCRIM Nos. 301, 335, 336, and 358 did not properly direct
the jury on how to consider the “useful and supportive
testimony” of Ly and Nguyen. Tran says this is so for three
reasons. First, Tran contends that the trial court should have
sua sponte instructed the jury that exculpatory statements or
testimony by accomplices or in-custody informants need not be
corroborated. But CALCRIM No. 335 properly instructed the
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jury on the corroboration requirement for inculpatory
accomplice testimony or statements (see People v. Howard
(2008) 42 Cal.4th 1000, 1022 [juries must be instructed that they
“cannot convict a defendant on the testimony of an accomplice
alone”]) and no corroboration requirement for inculpatory in-
custody informant testimony or statements existed at the time
of Tran’s trial (see People v. Huggins (2015) 235 Cal.App.4th
715, 718). Having so instructed the jury, the trial court was not
obligated to further instruct the jury that exculpatory testimony
or statements need not be corroborated.
Next, Tran asserts that CALCRIM Nos. 336 and 358
should have been modified to instruct the jury that it need not
have viewed with caution Plata’s exculpatory statements,
relayed through Ly and Nguyen, that implied that Plata was the
actual killer. We find no error because there was ample reason
for the jury to treat Plata’s statements with caution. Plata’s
accounts were inconsistent given that they contained conflicting
statements as to the roles Plata and Tran played in the murder.
Telling jurors to exercise caution in the face of such conflicting
statements from the same individual aligns with the generic,
commonsense instructions on how to assess witness testimony.
(See People v. Holloway (2004) 33 Cal.4th 96, 142 [finding no
harm from instructions that were “supported by common sense,
which many jurors are likely to indulge even without an
instruction”].)
Finally, Tran contends that CALCRIM Nos. 301 and 335
erroneously instructed the jury to consider Nguyen’s
exculpatory testimony regarding the meaning of Tran’s tattoo
only if it was corroborated by other evidence. Any alleged error
is harmless. Nguyen’s testimony — testifying that Tran told her
that his tattoo said, “Forgive me” — revealed nothing that the
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parties’ stipulation (that the tattoo means “forgive”) did not
reveal. Nguyen did not testify about Tran’s intent behind the
tattoo or what it connoted; she simply testified about what it
said.
In sum, we conclude that the trial court did not violate
Tran’s constitutional rights to present a defense and to proof
beyond a reasonable doubt by instructing the guilt jury with
versions of CALCRIM Nos. 301, 335, 336, and 358.
C. Sufficiency of the Evidence for Special
Circumstance
Tran argues that the torture-murder special circumstance
must be reversed because there was insufficient evidence that
he “specifically intended to inflict extreme pain for purpose of
revenge, extortion, persuasion, or a sadistic reason.”
1. Facts
As noted, the prosecutor called Dr. Richard Fukumoto and
Joann Nguyen to testify at the guilt phase. Fukumoto testified
about how Linda died. He was a pathologist who had personally
conducted thousands of autopsies during his decades-long
career, and he testified that he had reviewed Linda’s autopsy
report, the photographs taken during her autopsy, and the
testimony of the doctor who had prepared the report, Dr. Joseph
Halka, a doctor who had worked for Fukumoto’s medical group
at the time of the trial.
Based on the materials he reviewed, Fukumoto opined
that Linda died from asphyxiation by being strangled with an
electrical cord that had been wrapped around her neck twice.
The autopsy documents showed that Linda was bound by her
wrists and feet before she died, Fukumoto continued, explaining
that abrasions near her wrists and feet indicated that she
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attempted to remove the bindings. He testified that Linda was
conscious when she was strangled. And these documents
showed that her lungs contained edema — fluid in the air sacs
that is not ordinarily present — indicating that she did not die
instantaneously, Fukumoto said.
Fukumoto also testified that there “were two slash, sharp
instrument injuries” on Linda’s neck. These slash wounds, he
testified, overlapped one another, were inflicted before she was
strangled and died, and would have been caused by a sharp
instrument like a knife or scissor’s edge.
Yet Fukumoto also testified that these slash wounds were
“not deep enough to cause immediate death.” Though these
slash wounds were “potentially fatal” without medical aid
because “a person who suffers this type of wound could die
eventually,” dying from them would “take time,” Fukumoto said.
Later, during guilt phase closing argument, the prosecutor
mentioned Fukumoto’s testimony while arguing that the jury
should find the torture-murder special circumstance true. This
testimony, the prosecutor said, proved that Tran intended to
inflict extreme physical pain and suffering on Linda while she
lived, stating: “You heard the testimony of Dr. Fukumoto about
when she was alive, when she was conscious. She was conscious
up to the moment they started strangling her, and she was still
struggling and fighting as Tran was strangling.” According to
the prosecutor, this testimony proved that Tran intended to
inflict such pain and suffering for the calculated purpose of
extortion, persuasion, or any other sadistic reason: “It’s not
about revenge, but all the other ones apply. Extortion, to get
her to tell them where the money and jewelry is. Persuade, to
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tell them where the money and jewelry is. And if that’s not
sadistic, nothing is. If that was not sadistic, nothing is.”
Tran’s counsel argued during guilt phase closing
argument that “[t]here’s no indication that they tried to do
anything but kill her” and that there were “two reasonable
interpretations” of the evidence, one of which was “that this was
just a really inept way to kill somebody.”
2. Analysis
“On review, we examine the entire record in the light most
favorable to the prosecution to determine whether a rational
jury could have found the circumstance true beyond a
reasonable doubt.” (Armstrong, supra, 6 Cal.5th at p. 792.) To
prove a torture-murder special circumstance, the prosecutor
must prove that a defendant both intended to kill and intended
to torture, the latter of which means “ ‘ “to cause extreme pain
or suffering for the purpose of revenge, extortion, persuasion, or
another sadistic purpose.” ’ ” (Ibid.) The intent to torture “ ‘is a
state of mind which, unless established by the defendant’s own
statements (or by another witness’s description of a defendant’s
behavior in committing the offenses), must be proved by the
circumstances surrounding the commission of the offense
[citations], which include the nature and severity of the victim’s
wounds.’ ” (People v. Smith (2015) 61 Cal.4th 18, 52.)
Considering these circumstances in the light most
favorable to the prosecution, a rational jury could have found
the torture-murder special circumstance true beyond a
reasonable doubt because it could infer that Tran intended to
kill Linda and intended to torture her so that she would divulge
the location of the money and jewelry in the Park home. As
noted, Nguyen testified that Linda never told her where money
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and jewelry were located at the Park home. Sunhwa testified
that he typically stored money in a jacket in their master
bedroom’s closet and that his wife, Dong, typically stored her
jewelry inside boxes in the drawer of her makeup table in the
same room. Rolf Parkes, the Irvine police officer, testified that
when he arrived at the Park home on the night of Linda’s death,
he discovered this jacket but found no money inside it and
discovered two empty jewelry boxes atop a coffee table in the
living room where Linda’s body was found. And he testified that
the rest of the home was in a “very orderly” condition and had
not been ransacked. From this evidence, a reasonable jury could
infer that Tran and Plata did not know where these valuables
were located before they entered the Park home but learned it
from Linda instead.
In addition, a reasonable jury could infer that Tran and
Plata coaxed this information from Linda by binding her and
slashing her neck. Although evidence of binding alone is
insufficient to prove an intent to cause extreme pain or suffer
for a sadistic purpose, “it is appropriate to consider whether the
victim was bound and gagged, or was isolated from others, thus
rendering the victim unable to resist a defendant’s acts of
violence.” (Hajek and Vo, supra, 58 Cal.4th at p. 1188.) Linda’s
wrists and feet were bound behind her back, and she struggled
to escape unsuccessfully, indicating that she had little if any
way to defend herself against Tran or Plata. Plus, the “nature
and placement” of the slash wounds — two overlapping slash
wounds on her neck — allow a reasonable jury to infer that
“these wounds could not have been inflicted inadvertently.”
(People v. Crittenden (1994) 9 Cal.4th 83, 141.) These slash
wounds also “appear to have preceded” the fatal injury (ibid.),
and they were not immediately fatal but caused such severe
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bleeding that they would have killed Linda eventually. Indeed,
Linda died not from these or other slash wounds but from
another injury entirely: strangulation. A reasonable jury could
infer that Tran bound Linda and slashed her neck twice to cause
extreme pain or suffering so that Linda would divulge the
location of the money and jewelry. (Cf. People v. Turville (1959)
51 Cal.2d 620, 632; see also People v. Steger (1976) 16 Cal.3d
539, 547.)
Citing People v. Mungia (2008) 44 Cal.4th 1101, Tran
argues that a jury may conclude that a defendant intended to
cause extreme pain or suffering for a sadistic purpose “only
when the evidence showed ‘the defendant deliberately inflicted
nonfatal wounds or deliberately exposed the victim to prolonged
suffering.’ ” But Mungia involved a torture-murder special
circumstance finding based not on contentions that a
“ ‘defendant was motivated by revenge, extortion, or
persuasion,’ ” but on a contention that the defendant sadistically
intended “ ‘ “ ‘to cause the victim to suffer pain in addition to the
pain of death’ ” ’ merely on the basis of the defendant’s delivery
of repeated blows to the victim’s head.” (People v. Powell (2018)
5 Cal.5th 921, 947–948, quoting Mungia, at p. 1136.) Because
“nothing in the nature of the injuries [suggested] that defendant
inflicted any of them in an attempt to torture [the victim] rather
than to kill her,” even though the killing was “brutal and
savage,” we held that the evidence did not suffice to support the
torture-murder special circumstance finding. (Mungia, at
p. 1137.)
The torture-murder special circumstance here, by
contrast, could have been found true beyond a reasonable doubt
based on evidence that Tran tortured Linda to persuade her to
divulge the location of the money and jewelry. A reasonable jury
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could infer that the slash wounds on Linda’s neck were not
inflicted only for the purpose of killing her. Linda was
strangled, not slashed, to death. She may have died from the
slash wounds eventually, but such a death would “take time.” A
reasonable jury could have concluded that these slash wounds
were meant to torture her so that she would reveal the location
of the money and jewelry.
Tran also disputes the conclusions drawn from the
evidence. He argues that no evidence directly proves Tran and
Plata asked Linda about the money and jewelry, and that “the
insides of both a man’s jacket and a woman’s dressing table are
quite logical places to find valuables in a home, and thus, no
specialized knowledge from Linda would necessarily have been
required.” But “ ‘[w]e “must accept logical inferences that the
jury might have drawn from the circumstantial evidence.” . . .
Where the circumstances reasonably justify the trier of fact’s
findings, a reviewing court’s conclusion [that] the circumstances
might also reasonably be reconciled with a contrary finding does
not warrant the judgment’s reversal.’ ” (People v. Clark (2016)
63 Cal.4th 522, 625–626, citations omitted.) Indeed, Tran’s
counsel argued that the evidence proved nothing other than
Tran and Plata’s ineptitude in killing Linda. Yet the jury could
have, and did, reject this view of the evidence.
In sum, we conclude that a reasonable jury could have
found the torture-murder special circumstance true beyond a
reasonable doubt, so reversal of this special circumstance is
unwarranted.
D. Amendments to Gang Enhancement Statute
Tran argues that recent amendments to the gang
enhancement statute require reversal of the jury’s true finding
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of the section 186.22 gang enhancement, his guilt verdict, and
the death judgment.
1. Facts
As noted, the prosecutor called Mark Nye to testify as a
gang expert about gang culture, the VFL gang, Tran’s and
Plata’s VFL membership, and how a hypothetical robbery like
this one may support a criminal street gang.
In formulating his opinion about the VFL, Nye testified
that he reviewed documents and reports relating to convictions
and crimes committed by members of the VFL. These records
concerned Se Hoang, Phi Nguyen, and Anthony Johnson. They
comprised felony complaints, guilty pleas, minute orders, and
other court documents. And they showed that Hoang, Phi
Nguyen, and Johnson had pleaded guilty to various crimes, like
first degree residential burglary, attempted residential
burglary, or attempted murder, and that they were members of
the VFL or had committed these crimes for its benefit. Nye
discussed these records while he testified.
Later, the trial court instructed the guilt jury on the
criminal street gang enhancement under section 186.22,
subdivision (b). Among other things, the trial court instructed
the jury that a “pattern of criminal gang activity” means “[t]he
commission of, or attempted commission of, or conspiracy to
commit, or conviction of, . . . any combination of two or more
crimes.”
At guilt phase closing argument, the prosecutor discussed
the “gang enhancement.” Saying he was “not going to go
through it in detail,” he reminded the jury that he “introduced
the prior conviction of Se Hoang, . . . and Phi Nguyen and
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Anthony Johnson.” He continued: “You might be saying, ‘Why
did he introduce that?’ Because that is one of the elements.”
In a general verdict for Tran, the jury found true the
section 186.22, subdivision (b) gang enhancement.
2. Analysis
“In 1988, the Legislature enacted the California Street
Terrorism Enforcement and Prevention Act (STEP Act; § 186.20
et seq.) to eradicate ‘criminal activity by street gangs.’ ”
(Valencia, supra, 11 Cal.5th at p. 828.) Among other things, the
STEP Act created “a sentencing enhancement for a felony
committed ‘for the benefit of, at the direction of, or in association
with any criminal street gang’ (§ 186.22, subd. (b)(1)).”
(Valencia, at p. 829.)
In 2021, the Legislature passed Assembly Bill No. 333 (
(2021–2022 Reg. Sess.) (Assembly Bill 333), which became
effective on January 1, 2022. Assembly Bill 333 made the
following changes to the law on gang enhancements: First, it
narrowed the definition of a “criminal street gang” to require
that any gang be an “ongoing, organized association or group of
three or more persons.” (§ 186.22, subd. (f), italics added.)
Second, whereas section 186.22, former subdivision (f) required
only that a gang’s members “individually or collectively engage
in” a pattern of criminal activity in order to constitute a
“criminal street gang,” Assembly Bill 333 requires that any such
pattern have been “collectively engage[d] in” by members of the
gang. (§ 186.22, subd. (f), italics added.) Third, Assembly Bill
333 also narrowed the definition of a “pattern of criminal
activity” by requiring that (1) the last offense used to show a
pattern of criminal gang activity occurred within three years of
the date that the currently charged offense is alleged to have
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Opinion of the Court by Liu, J.
been committed; (2) the offenses were committed by two or more
gang “members,” as opposed to just “persons”; (3) the offenses
commonly benefitted a criminal street gang; and (4) the offenses
establishing a pattern of gang activity must be ones other than
the currently charged offense. (§ 186.22, subd. (e)(1), (2).)
Fourth, Assembly Bill 333 narrowed what it means for an
offense to have commonly benefitted a street gang, requiring
that any “common benefit” be “more than reputational.”
(§ 186.22, subd. (g).)
Finally, Assembly Bill 333 added section 1109, which
requires, if requested by the defendant, a gang enhancement
charge to be tried separately from all other counts that do not
otherwise require gang evidence as an element of the crime. If
the proceedings are bifurcated, the truth of the gang
enhancement may be determined only after a trier of fact finds
the defendant guilty of the underlying offense.
Tran argues that the amendments made to the elements
of a section 186.22 gang enhancement require reversal of his
gang enhancement finding. Tran also argues that the failure to
bifurcate the adjudication of his gang enhancement charge and
the rest of his charges, as newly enacted section 1109 directs
upon a defendant’s request, requires reversal of his guilt
verdicts and death judgment. We conclude that reversal of the
gang enhancement is required but not reversal of the guilt
verdicts or death judgment.
Starting with the changes to the elements of a section
186.22 gang enhancement, the Attorney General concedes that
the rule of In re Estrada (1965) 63 Cal.2d 740 (Estrada) applies,
and we agree. Estrada “stand[s] for the proposition that (i) in
the absence of a contrary indication of legislative intent, (ii)
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Opinion of the Court by Liu, J.
legislation that ameliorates punishment (iii) applies to all cases
that are not yet final as of the legislation’s effective date.”
(People v. Esquivel (2021) 11 Cal.5th 671, 675.) Estrada applies
to statutory amendments “which redefine, to the benefit of
defendants, conduct subject to criminal sanctions.” (Tapia v.
Superior Court (1991) 53 Cal.3d 282, 301.) Here, “Assembly Bill
333 essentially adds new elements to the substantive offense
and enhancements in section 186.22 — for example, by
requiring proof that gang members ‘collectively engage’ in a
pattern of criminal gang activity, that the predicate offenses
were committed by gang members, that the predicate offenses
benefitted the gang, and that the predicate and underlying
offenses provided more than a reputational benefit to the gang
. . . .” (People v. E.H. (2022) 75 Cal.App.5th 467, 479; see also
People v. Delgado (2022) 74 Cal.App.5th 1067, 1087; People v.
Sek (2022) 74 Cal.App.5th 657, 666–667; People v. Vasquez
(2022) 74 Cal.App.5th 1021, 1032–1033; People v. Lopez (2021)
73 Cal.App.5th 327, 344.) These changes have the effect of
“increas[ing] the threshold for conviction of the section 186.22
offense and the imposition of the enhancement,” with obvious
benefit to defendants like Tran. (Lopez, supra, 73 Cal.App.5th
at p. 344.)
When a substantive change occurs in the elements of an
offense and the jury is not instructed as to the proper elements,
the omission implicates the defendant’s right to a jury trial
under the Sixth Amendment, and reversal is required unless “it
appears beyond a reasonable doubt” that the jury verdict would
have been the same in the absence of the error. (People v. Flood
(1998) 18 Cal.4th 470, 504.) Here, the Attorney General
concedes reversal, reasoning that the evidence presented at trial
failed to establish that the gang members “collectively” engaged
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Opinion of the Court by Liu, J.
in a pattern of criminal gang activity, as required by section
186.22 as newly amended. We agree. We need not resolve the
contours of Assembly Bill 333’s collective engagement
requirement. Instead, because the jury was not presented with
any discernible theory as to how VFL members “collectively
engage[d] in” these predicate crimes (§ 186.22, subd. (f)), we
merely hold, on this record, that the reversal of the gang
enhancement is required. As the Attorney General requests
(without objection from Tran), we vacate the enhancement
without remand.
Next, Tran argues that newly enacted section 1109, which
requires the trial court to bifurcate the adjudication of the
underlying offense and the gang enhancement upon a
defendant’s request, applies retroactively and requires reversal
of the guilt verdicts and death judgment.
As an initial matter, we note that Tran raised this section
1109 claim only in his supplemental reply brief. Generally,
“arguments made for the first time in a reply brief will not be
entertained because of the unfairness to the other party.”
(People v. Tully (2012) 54 Cal.4th 952, 1075.) However, because
the appellate authority holding that section 1109 applies
retroactively was only issued after the time had passed for Tran
to file his supplemental brief and the Attorney General has since
been given the opportunity to respond to Tran’s claim, the usual
concerns regarding unfairness have been mitigated. The
Attorney General does not argue forfeiture, and we proceed to
the merits of Tran’s section 1109 claim.
The question of whether section 1109 applies retroactively
is the subject of a split of authority among the Courts of Appeal.
(See e.g., People v. Burgos (2022) 77 Cal.App.5th 550, 566–567;
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People v. Ramos (2022) 77 Cal.App.5th 1116, 1131; People v.
Ramirez (2022) 79 Cal.App.5th 48, 65.) We decline to resolve
this split here because we conclude that any asserted error in
failing to bifurcate was harmless as to Tran’s guilt verdicts and
penalty judgment.
We first reject Tran’s contention that the failure to
bifurcate constitutes structural error. Errors may be deemed
structural according to “ ‘three broad rationales’ ”: where “ ‘the
right at issue is not designed to protect the defendant from
erroneous conviction but instead protects some other interest,’ ”
“ ‘where the effects of the error are simply too hard to measure,’ ”
or where “ ‘the error always results in fundamental
unfairness.’ ” (In re Christopher L. (2022) 12 Cal.5th 1063,
1077.) None of these reasons apply. First, the stated purpose of
section 1109 is to reduce the prejudicial impact of gang evidence
and to protect defendants from erroneous conviction.
(Stats. 2021, ch. 699, § 2, subd. (d)(6) [section 1109 is designed
to prevent the “further perpetuat[ion]” of “unfair prejudice in
juries and convictions of innocent people”].) Second, errors
relating to wrongful admission of evidence are traditionally
subject to harmless error review (People v. Schultz (2020) 10
Cal.5th 623, 661 (Schultz)), demonstrating that the effects of
these types of errors are not “simply too hard to measure”
(Christopher L. at p. 1077). Finally, although the admission of
gang evidence may sometimes result in fundamental unfairness
(see, e.g., People v. Albarran (2007) 149 Cal.App.4th 214, 232),
this is not always the case. We have held that gang evidence,
even if not admitted to prove a gang enhancement, may still be
relevant and admissible to prove other facts related to a crime.
(People v. Williams (1997) 16 Cal.4th 153, 194.) Additionally,
the fact that section 1109 requires bifurcation only upon a
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defendant’s request suggests there are circumstances where a
single trial remains appropriate.
We also reject Tran’s argument that the Chapman v.
California (1967) 386 U.S. 18 standard for federal constitutional
error should apply when reviewing his guilty verdicts. “[T]he
admission of evidence, even if erroneous under state law, results
in a due process violation only if it makes the trial
fundamentally unfair.” (People v. Partida (2005) 37 Cal.4th 428,
439 (Partida).) Such prejudice did not occur in this case. To
establish Tran’s guilt, the prosecutor relied mainly on the
testimony and prior statements of a few key witnesses. As
noted, Qui Ly’s testimony was particularly damaging; he
testified that both Tran and Plata told him about their
involvement in the murder, and tapes of these conversations
were played to the jury. Additionally, Joanna Nguyen, Tran’s
girlfriend, testified that shortly after the murder, Tran told her
that he and Plata had killed the victim because they did not
want her to identify him if she was questioned about the
robbery.
In addition to this testimony, the prosecutor relied on the
gang circumstances of the case to strengthen the case for guilt
in two ways, neither of which rendered the trial fundamentally
unfair. First, the prosecutor argued that any inconsistencies
between the witnesses’ trial testimony and their prior
statements could be explained by the fact that they were
members of the gang and feared retaliation. We have held that
a trial court is entitled to admit evidence demonstrating a fear
of testifying. (See People v. Valdez (2012) 55 Cal.4th 82, 137.)
Second, the prosecutor also relied on the gang circumstances of
the crime when arguing why Plata should be found guilty as an
aider and abettor of Tran’s act of killing the victim. Specifically,
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while the evidence tended to show that Tran was the actual
killer, the prosecutor argued that Plata should be found guilty
as an aider and abettor because “in a gang case” it could be
inferred that Plata would assist Tran in the murder as a fellow
gang member. Whatever effect this had on Plata’s case, it is
hard to see how the prosecutor’s argument was fundamentally
unfair to Tran; the prosecutor’s theory was that Tran was the
actual killer, so there was no need for any gang evidence to
demonstrate that he was guilty as an aider and abettor.
Because the prosecutor’s use of the gang evidence here did not
render the trial “fundamentally unfair,” the Chapman standard
for federal constitutional error does not apply. (Partida, supra,
37 Cal.4th at p. 439.)
Applying the People v. Watson (1956) 46 Cal.2d 818
standard for state-law error, we find that Tran has failed to
demonstrate prejudice as to his guilt verdicts. Tran argues that
if the trials were bifurcated, the trial court might have exercised
its discretion to exclude gang evidence. However, apart from
describing the general risk of prejudice that may result from the
admission of gang evidence, Tran does not explain how the
exclusion of gang evidence in this case would have been
reasonably likely to change the jury’s verdict of guilt as to the
underlying murder. The case for guilt here was strong, with
multiple witnesses testifying that Tran had told them about his
involvement in the killing. In the face of this evidence, defense
counsel did not dispute that Tran and Plata had committed the
robbery and murder, going so far as to argue that “[t]here’s no
indication that they tried to do anything but kill her” and that
“[t]hese two guys apparently . . . went to do a robbery and they
got terrible.” Given the overwhelming evidence of guilt and lack
of any credible defense theory in response, it is not reasonably
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likely that a bifurcated trial would have changed the jury’s
verdict.
Similarly, we find it is not reasonably likely that the
exclusion of gang evidence would have affected the jury’s true
findings on the robbery, burglary, and torture special
circumstances. Tran argues that the gang evidence could have
skewed the jury to find that Tran acted with the intent to kill or
with reckless indifference to human life for purposes of the
robbery or burglary special circumstance, or that he intended to
inflict extreme physical pain and suffering for purposes of the
torture murder special circumstances. Again, apart from
pointing to the general risk of prejudice, Tran does not explain
how the gang evidence here was likely to have influenced the
jury’s specific findings. When making the case for these special
circumstances in closing arguments, the prosecutor did not
mention Tran’s or Plata’s gang membership. Instead, the
prosecutor relied on other facts that were conceptually distinct
from the issue of gang membership — namely, the actual
circumstances of the robbery and the autopsy evidence of the
victim’s injuries. It is not reasonably likely that exclusion of
gang evidence would have affected the jury’s findings on these
special circumstances.
As to whether the failure to bifurcate was prejudicial as to
Tran’s death judgment, we ask if “ ‘there is a reasonable
possibility such an error affected the verdict,’ ” a standard that
is “ ‘the same, in substance and effect’ ” as the standard set out
in Chapman. (People v. Nelson (2011) 51 Cal.4th 198, 218,
fn. 15.) We find no such reasonable possibility. Section 1109
only requires bifurcation as to “[t]he question of the defendant’s
guilt of the underlying offense” and the “truth of the
enhancement.” (Id., subd. (a)(1), (2).) It makes no change to the
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manner in which the penalty phase of capital proceedings
should be conducted. Given the usual rule that any evidence
admitted at the guilt phase may be considered at the penalty
phase (People v. Garton (2018) 4 Cal.5th 485, 522), any evidence
admitted in a bifurcated trial, including any gang evidence,
could have been considered during Tran’s penalty phase.
Accordingly, we cannot conclude that there was a reasonable
possibility that a bifurcated trial at the guilt phase would have
affected the penalty phase decision.
In sum, we conclude that the amendments made to the
gang enhancement law by Assembly Bill 333 require reversal of
the jury’s true finding of the gang enhancement, but not reversal
of the guilt verdicts or death judgment.
IV. PENALTY PHASE CLAIMS
A. Inadmissible Hearsay in Gang Expert Testimony
Tran argues that during the guilt phase, Nye relied on
inadmissible hearsay when testifying as to Plata’s gang
membership, Tran’s gang membership, and Tran’s lack of
remorse. Tran further argues that the prosecutor relied on
these three factual assertions in arguing for the death penalty
and that these errors require reversal of the death judgment.
1. Facts
As noted, during the guilt phase, gang expert Nye testified
as to his opinion that Plata and Tran were VFL members.
In reaching his opinion that Plata was a VFL member,
Nye considered letters between Plata and other VFL members,
a 1996 field identification card showing that Plata had admitted
to his gang membership, a 1993 report where Plata admitted
that he was a VFL member, and statements by other individuals
to the police that Plata had told them he was a VFL member.
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As to Tran’s gang membership, Nye considered a police
contact in 1993 where Tran admitted that he was a member of
VFL. Nye also considered eight to ten other contacts between
law enforcement and Tran, and a book that Tran had in his
house that contained handwritten notes including “Scrappy,”
“Viets for Life,” and “Fuck T.R.G.” with “T.R.G.” crossed out.
Nye also considered Tran’s numerous tattoos, which
included a map of Vietnam, the words “In loving memory of
Viet,” the years that Tran was incarcerated, his nickname
“Scrappy,” a “V” surrounded by rays, a Vietnamese saying that
translates to “no good deed has been returned by my father and
other by me,” and Korean characters, translated as “Forgive.”
As for the tattoo of the Vietnamese saying, Nye claimed based
on his general experience with “thousands of gang members”
that “a lot of Asian gang members get that tattoo,” which is
intended to mean “I disrespected my mom and dad” and to
convey their willingness to participate in criminal activity. As
to the “Forgive” tattoo, Nye testified that such a tattoo would be
seen “within the gang subculture” as indicating that Tran was
“taking credit for” the murder of a Korean. This opinion was
“reinforced by” Nye’s consideration of the taped jailhouse
conversation between Plata and Ly, wherein Plata said that
Tran intended for the tattoo to mean “blow me or suck me.”
Probation officer Timothy Todd also testified that Tran’s
“Forgive” tattoo was a form of bragging. In formulating this
opinion, Todd took into consideration his general “training and
experience” as well as the jailhouse conversation between Plata
and Ly.
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2. Analysis
In People v. Sanchez (2016) 63 Cal.4th 665, 686 (Sanchez),
we held that “[w]hen an expert relates to the jury case-specific
out-of-court statements, and treats the content of those
statements as true and accurate to support the expert’s opinion,
the statements are hearsay.” Typically, the standard for
evaluating whether Sanchez error is prejudicial turns on
whether the statement is testimonial. (Valencia, supra, 11
Cal.5th at p. 840 [stating that Watson “ordinarily” applies but
that Chapman applies if the improperly admitted hearsay is
testimonial such that its admission also violates the
confrontation clause].) However, because Tran asserts prejudice
as to his death judgment, we ask if “ ‘there is a “reasonable (i.e.,
realistic) possibility” the error affected the verdict.’ ” (People v.
Penunuri (2018) 5 Cal.5th 126, 163.) Applying this standard,
we find each of Tran’s asserted errors harmless.
First, regarding Plata’s gang membership, while Tran is
correct that some of the evidence relied upon by the expert, such
as the field identification card and police reports, constitutes
inadmissible hearsay based on our reasoning in Sanchez, there
was independent admissible evidence that Plata was a member
of the VFL. In particular, the jury heard testimony by Linda Le
and Qui Ly, both of whom unequivocally testified that Plata was
a member of the VFL.
Second, any Sanchez error regarding Tran’s gang
membership was also harmless. As Tran concedes, Nye was
entitled to rely on the authenticated photographs of his tattoos.
Nye was further entitled to rely on his generalized knowledge,
gained from his experience with thousands of gang members, to
offer an opinion as to the meaning of the tattoos and why they
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indicated membership in the VFL. (Sanchez, supra, 63 Cal.4th
at p. 677 [an expert is “allowed to give an opinion that the
presence of a diamond tattoo shows the person belongs to the
gang”].) Additionally, the jury heard from multiple witnesses
that Tran was a member of the VFL. Indeed, Tran’s attorney
told the trial judge, while discussing evidentiary issues, that the
defense was “not contesting that he’s a VFL.” Any Sanchez error
specific to Tran’s gang membership was harmless beyond a
reasonable doubt.
Third, any Sanchez error related to the meaning of Tran’s
“forgive” tattoo was also harmless. On this point, Tran argues
Nye’s and Todd’s reliance on Plata’s statements in the jailhouse
interview violated Sanchez and that this error was prejudicial
as to the death judgment because it was used to demonstrate a
lack of remorse. Tran argues that the prosecutor’s “main theme”
during the penalty phase closing arguments was that Tran
“bragged about the crime and showed no remorse.” Tran notes
that defense counsel also “focused on remorse” and argued that
the tattoos demonstrated that Tran was “really profoundly
affected by” his crime.
At the outset, we recognize that some prejudice obviously
arises when a gang expert testifies that a tattoo, literally
translated as “Forgive,” should instead be understood to mean
“suck me” or “blow me.” But any Sanchez error is harmless for
two reasons. For one, the experts’ opinion regarding the general
meaning of the tattoo was supported by independently
admissible evidence — namely, the experts’ generalized
knowledge of gang subculture, gleaned from conversations with
gang members regarding the meaning of such tattoos. (Sanchez,
supra, 63 Cal.4th at p. 677.) Additionally, while Tran is correct
in observing that the prosecutor focused on rebutting Tran’s
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assertions of remorse during the penalty phase closing
arguments, the prosecutor never mentioned the tattoos during
the penalty phase. Instead, the prosecutor focused exclusively
on other evidence to demonstrate Tran’s alleged lack of remorse.
This evidence was substantial; it included Tran’s repeated
criminal actions and Tran’s taped conversations with a jailhouse
informant that suggested callousness about the murder.
On this record, we hold that any Sanchez error based on
the experts’ reliance on Plata’s jailhouse statements regarding
the meaning of Tran’s tattoos was harmless.
B. Admission of Speculative Expert Testimony
In response to our request for supplemental briefing,
which was limited to the Assembly Bill 333 and Sanchez issues,
Tran also argues that reversal of the death judgment is
warranted because the trial court failed to uphold its
gatekeeping duty under Sargon Enterprises, Inc. v. University of
Southern California (2012) 55 Cal.4th 747 (Sargon). Tran
argues that the trial court should have excluded speculative
gang expert testimony regarding Tran’s and Plata’s gang
membership, the gang status of the VFL, and the fact that the
charged offense was committed for the benefit of the VFL.
Tran has forfeited this claim. A challenge to the
admissibility of expert testimony under Sargon is a challenge to
the reliability and foundation of the evidence, and whether the
subject of the testimony is admissible as expert testimony. (See
Sargon, supra, 55 Cal.4th at pp. 771–772.) These objections
were available to Tran at the time of his trial, before we decided
Sargon. (See People v. Gardeley (1997) 14 Cal.4th 605, 617–
619). It is not evident that any objection on such grounds would
have been “ ‘ “futile or wholly unsupported by substantive law
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then in existence.” ’ ” (People v. Perez (2020) 9 Cal.5th 1, 8,
quoting People v. Brooks (2017) 3 Cal.5th 1, 92.) Even if Tran
were excused from raising a claim under sections 801 and 802
at trial because Sargon significantly developed the law, the
original 2017 briefing in this appeal post-dates Sargon by five
years. Tran had the opportunity to raise this Sargon concern
then, and his failure to do so results in forfeiture. (Cal. Rules of
Court, rule 8.520(d)(1) [supplemental brief must be “limited to
new authorities, new legislation, or other matters that were not
available in time to be included in the party’s brief on the
merits”]; People v. Carrasco (2014) 59 Cal.4th 924, 990 [finding
forfeited claim first raised at oral argument and in subsequent
supplemental reply brief].)
C. Victim Impact Evidence
Tran argues that the trial court violated state and federal
law by admitting certain evidence about the impact of Linda’s
death.
1. Facts
As noted, the prosecutor called Sunhwa, Janie, and Fox to
testify at the penalty phase. Their testimony spanned about 35
pages of transcript, and while they testified, the prosecutor
sometimes showed the jury photographs or videos of or about
Linda, along with Linda’s personal items.
a. Sunhwa Park
Sunhwa, Linda’s father, testified about Linda as a child
and as a teenager. As a child, Linda “received a lot of adoration
and love from our family” because Sunhwa was the only one with
two daughters. As a teenager, Sunhwa continued, Linda had
many friends and attended church regularly. The prosecutor
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showed Sunhwa photos of Linda, including one of her as a child
in a “Korean traditional outfit.”
Sunhwa also recounted the impact of Linda’s death on her
mother, Dong Park. Dong “came home and basically passed out”
when she discovered what happened to Linda, Sunhwa recalled.
Since then, Dong would “be in Linda’s room crying every day.”
Dong suffered so much that Sunhwa thought that he could ease
her pain “by letting her die or killing her.” Sunhwa testified that
he once entered Dong’s room “to kill her with a knife,” but his
brother prevented him from doing so. Another time, Sunhwa
poured gasoline around their home to set themselves on fire “so
we [could] die” because Linda’s death “was too much for us to
bear, and we couldn’t really go on living without her.” But Janie,
his eldest daughter, fetched their neighbors, the Foxes, and
together they prevented him from doing so. Sunhwa also
testified that Dong fainted when she was first meant to appear
in court for this case and that she still visited and cleaned
Linda’s graveyard weekly.
Sunhwa also testified about the impact of Linda’s death on
himself. After she died, Sunhwa wrote on Linda’s bedroom
walls: “Linda, I love you. Linda, I miss you. Linda, I am so
sorry.” Sunhwa explained how he could not “live a day without
drinking some alcohol in [his] system” after Linda’s death and
how he overcame his addictions “through faith” after realizing
that he had to care for Janie.
b. Marilyn Fox
Fox was the Parks’ longtime next door neighbor when
Linda died. Fox testified about the evening that Linda was
killed. She explained how she followed Sunhwa to the Park
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home and told him not to touch anything inside, returned to her
home, and called the police.
Fox also testified about Linda herself. “She was a quiet
girl and a very beautiful little girl,” Fox recalled, observing that
Linda “was always respectful” when Fox visited the Park home.
And Fox testified about how Linda’s family underwent “a
dramatic change” after her death. Fox testified about how
Sunhwa would visit her home and “for probably about an hour
he would just sit and talk with us, and then it would be — he
would get the strength to go home to his house.” This behavior
“went on for a very long time, months,” Fox remarked.
c. Janie Park
Janie, Linda’s older sister, testified about Linda and how
her death impacted their family and community. While Janie
testified, the prosecutor showed her Linda’s 1994 yearbook,
three videos about Linda, and notes that Linda had written,
among other things.
Janie recalled how Linda “would always follow me around”
and how Linda “was incredibly close with my parents.” Janie
also testified about how Linda “would write little sticky post-it
notes everywhere reminding herself that she had to do this for
the next day, remind someone to do this.” When the prosecutor
showed Janie some of Linda’s notes, Janie remarked that
“normal people wouldn’t write [this] kind of stuff down” but that
“innocent people” would.
Janie then testified about how Linda’s death affected her
and the community. Janie explained how she took her son and
daughter to visit Linda’s grave and “pretty much explained that
this is their aunt.” The prosecutor then played two videos: one
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of Linda’s 14th birthday party and the other of her one-year
anniversary memorial service.
Janie further testified about how Linda’s death affected
her parents. Janie testified that Sunhwa “became very self-
destructive,” remarked how “every time he went into the
bathroom, he would scream, bang the walls,” and opined that
Sunhwa is “never, ever going to be the same.” And Janie
testified that watching Dong “just fall apart” “was very
devastating” and recalled how Dong faints whenever she sees a
police officer approach.
d. Juror No. 1
After Sunhwa and Fox testified but before Janie took the
stand, Juror No. 1 informed the trial court that she was unsure
whether she could continue serving on the jury. The trial court
then questioned Juror No. 1 in open court with counsel and Tran
and Plata present.
Juror No. 1 said: “I believe in the law, and I believe in
being fair, and I believe that I have to be courageous enough to
say I don’t think I have an open mind anymore.” After the trial
court observed that an interpreter had cried during Sunhwa’s
testimony, Juror No. 1 replied, “I was shaking all night long. I
will do, with all due respect, whatever you want. Out of fairness
to everyone involved, everyone involved, I thought I owed it to
all of you to be honest enough to say I’m not coping.”
Because of this, defense counsel sought to excuse Juror
No. 1, the prosecutor did not object to her excusal, and the trial
court did not “have any problem excusing her.” So the trial court
excused Juror No. 1 and replaced her with another juror.
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e. Jury Instructions and Closing Argument
Later, the trial court instructed the penalty jury with
CALCRIM Nos. 761 and 763, among other instructions.
CALCRIM No. 761 tasked the jury with disregarding the
instructions given during the guilt phase of the trial, following
the instructions given during this phase of the trial, and
deciding “whether each defendant will be sentenced to death or
life in prison without the possibility of parole,” among other
things. It also said: “Do not allow bias, prejudice, or public
opinion to influence your opinion in any way.” And it said:
“Words or phrases not specifically defined in these instructions
are to be applied using their ordinary, everyday meanings.”
Defense counsel did not object to CALCRIM No. 761, nor did
they request an additional instruction about how the jury should
consider victim impact evidence.
CALCRIM No. 763 instructed the jury that “[u]nder the
law, you must consider, weigh, and be guided by specific factors,
some of which may be aggravating and some of which may be
mitigating,” and it then enumerated six factors to consider.
Defense counsel objected to CALCRIM No. 763 on equal
protection grounds, but the trial court overruled the objection.
Defense counsel did not request an additional instruction on
how the jury should consider victim impact evidence.
At penalty phase closing argument, the prosecutor
remarked to the jury that the victim impact evidence felt like a
“tidal wave.” But this tidal wave, he continued, “becomes a drop
in the ocean of what [the Parks] go through” and “what they live
with every day.” Defense counsel did not object to the
prosecutor’s penalty phase closing argument.
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2. Analysis
“ ‘Unless it invites a purely irrational response, evidence
of the effect of a capital murder on the loved ones of the victim
and the community is relevant and admissible under [Penal
Code] section 190.3, factor (a) as a circumstance of the crime.
[Citation.] The federal Constitution bars victim impact evidence
only if it is so unduly prejudicial as to render the trial
fundamentally unfair.’ [Citation.] We have repeatedly held that
‘ “[a]dmission of testimony presented by a few close friends or
relatives of each victim, as well as images of the victim while he
or she was alive,” ’ is constitutionally permissible.” (People v.
Steskal (2021) 11 Cal.5th 332, 369 (Steskal).) “We review the
trial court’s admission of victim impact evidence for abuse of
discretion.” (People v. Simon (2016) 1 Cal.5th 98, 138 (Simon).)
We have previously “upheld testimony by a physician,
three law enforcement officers, and five family members who
discussed the victim’s ‘childhood hardships, his lifelong desire to
be a police officer, his achievements, his engagement and future
plans, his death, his funeral service, and the aftereffects of his
death.’ ” (Steskal, supra, 11 Cal.5th at p. 369, quoting People v.
Brady (2010) 50 Cal.4th 547, 573.) We have also upheld
testimony from a mother and an older sister of a murder victim
and “a notebook containing 53 photographs taken throughout
[the victim’s] life, a report card, a group of letters, and a
Christmas list [the victim] gave her mother shortly before the
murder.” (People v. Winbush (2017) 2 Cal.5th 402, 463
(Winbush).) And we have upheld testimony from seven people
across about 73 pages along with four photographs of the
murder victim. (People v. Spencer (2018) 5 Cal.5th 642, 676–680
(Spencer).)
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Tran’s claim is unavailing because this victim impact
evidence was not unduly prejudicial. The witnesses properly
described their relationships with Linda, how they learned
about Linda’s death, and how Linda’s death impacted their
lives. (See Spencer, supra, 5 Cal.5th at p. 676 [“Evidence
relating to a murder victim’s personal characteristics and the
impact of the crime on the victim’s family is relevant to show the
victim’s ‘ “uniqueness as an individual human being” ’ and
thereby ‘the specific harm caused by the defendant.’ ”].) While
Sunhwa and Janie testified, they were shown photos of Linda as
a baby, child, or teenager, and personal items of hers, just like
other victim impact witnesses have been shown photos or items
of a victim in other cases. (See Winbush, supra, 2 Cal.5th at p.
462.) And neither the number of witnesses (three) nor the
amount of testimony (about 35 pages) was excessive. (See
Spencer, at pp. 676–680.)
Plus, the videos of Linda’s birthday party, her graduation,
and her one-year anniversary memorial service were not
impermissible. Victim impact evidence presented via video may
be relevant to the penalty determination, but “ ‘no bright-line
rule pertaining to the admissibility of videotape recordings of
the victim at capital sentencing hearings’ ” exists. (People v. Bell
(2019) 7 Cal.5th 70, 128.) We have reviewed the videos, and
they resemble other videotape evidence held permissible. All
three videos resemble “ ‘home movie[s]’ more than . . .
professional production[s].” (Ibid.) They are “ ‘not enhanced by
narration, background music, or visual techniques designed to
generate emotion.’ ” (Ibid.) Nor do they “ ‘convey outrage or call
for vengeance or sympathy.’ ” (Ibid.)
Nor does the victim-impact evidence invite a purely
irrational response from the jury. “We have consistently
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observed that the emotional trauma suffered by close friends
and relatives is a permissible subject of victim impact
testimony” and “ ‘[e]motional testimony is not necessarily
inflammatory.’ ” (Winbush, supra, 2 Cal.5th at p. 465.) Tran
says the evidence was “devastating,” seemingly pointing to
Juror No. 1’s distress and the interpreter’s crying as proof, “but
that is to be expected when loved ones have been brutally
murdered.” (Simon, supra, 1 Cal.5th at p. 140.) That the
interpreter cried does not, by itself, require a conclusion that the
evidence invites a purely irrational response. (Cf. People v.
Linton (2013) 56 Cal.4th 1146, 1204 (Linton) [“That some jurors
may have reacted to the testimony by crying does not require a
conclusion that the evidence invited a purely irrational response
by the jury in deciding the appropriate penalty or otherwise
rendered defendant’s trial fundamentally unfair.”].)
Besides, Tran’s argument relying on Juror No. 1’s actions
rests on the notion that Juror No. 1’s reaction impliedly means
that the remaining jurors were purely irrational. But we
presume that jurors are impartial. (See People v. Mora and
Rangel (2018) 5 Cal.5th 442, 482–485.) And Juror No. 1’s
actions signal something other than pure irrationality. Rather
than remaining on the jury, Juror No. 1 reported that she could
no longer keep an open mind, and defense counsel sought her
excusal. In other words, Juror No. 1 acted just as we presume
that a juror would act. So Juror No. 1’s actions do not allow us
to draw the negative inference against the jury that Tran would
have us draw.
Tran’s remaining arguments are unpersuasive. First,
Tran argues that the pre-enactment history of section 190.3
means that the phrase “circumstances of the crime” excluded
victim impact evidence absent a showing that a defendant
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intended the specific harm caused by committing the crime,
mainly relying on People v. Love (1960) 53 Cal.2d 843, or that
this phrase only referred to evidence that was part of the crime
itself, not victim impact evidence of the sort presented here,
mainly relying on People v. Nye (1969) 71 Cal.2d 356 and People
v. Morse (1969) 70 Cal.2d 711.
But we have rejected an almost identical argument
founded on Love in People v. Seumanu (2015) 61 Cal.4th 1293.
There, the defendant argued that we had not considered “the
actual meaning of the statutory phrase ‘circumstances of the
crime’ ” in light of our “interpretation of the same phrase” in
Love. (Seumanu, at p. 1366.) But Love, we explained, “did not
purport to interpret the meaning of the statutory phrase in
question to reach its decision,” “has no bearing on the meaning
of section 190.3, factor (a) as presently written,” and “did not
purport to give the phrase ‘circumstances surrounding the
crime’ ” — the phrase used in earlier statutes — “a narrow
interpretation so as to preclude evidence of the crime’s impact
on surviving family and friends.” (Seumanu, at pp. 1367–1368.)
Tran concedes as much but asserts that we have not
considered the import of Nye and Morse here. Yet Tran’s
argument falters for a more fundamental reason: In People v.
Edwards (1991) 54 Cal.3d 787, we held that evidence about “the
impact of the murder on the victim’s family” — in other words,
the victim-impact evidence presented here — was admissible as
“circumstances of the crime” under section 190.3 because the
“usual, ordinary import” or the “commonly understood” meaning
of the phrase “circumstances of the crime” encompassed such
evidence. (Edwards, at pp. 833, 836.) In other words, our
holding in Edwards rested on the unambiguous plain meaning
of the phrase “circumstances of the crime.” Generally, we
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consult extrinsic sources, like a statute’s history, to interpret a
statute only when its language is ambiguous. (See People v.
Walker (2002) 29 Cal.4th 577, 581.) By asking us to consider
extrinsic sources that predated section 190.3, Tran thus
implicitly asks us to read ambiguity into the phrase
“circumstances of the crime.” But we have long held that this
phrase lacks any (see Edwards, at pp. 833–836), and we see no
reason to reconsider our decision today.
Second, Tran asserts that the trial court should have
instructed the jury to limit its consideration of victim-impact
evidence “to a rational inquiry into the culpability of the
defendant, not ‘an emotional response to the evidence.’ ” But he
concedes that we have rejected a similar argument before. At
any rate, Tran’s claim lacks merit. The penalty jury was
instructed with CALCRIM Nos. 761 and 763, among others.
CALCRIM instructions are “approved by the Judicial Council,”
are “the official instructions for use in the state of California,”
and are intended to “accurately state the law in a way that is
understandable to the average juror.” (Cal. Rules of Court, rule
2.1050(a); see also Ramirez, supra, 10 Cal.5th at p. 1008 & fn. 5.)
Here, CALCRIM Nos. 761 and 763 are substantially identical
for present purposes to their predecessors, CALJIC Nos. 8.84.1
and 8.85. (Compare CALCRIM No. 761 [“Do not allow bias,
prejudice, or public opinion to influence your opinion in any
way.”] and CALCRIM No. 763 [enumerating aggravating and
mitigating circumstances for jury to consider] with CALJIC No.
8.84.1 [“You must neither be influenced by bias nor prejudice
against the defendant, nor swayed by public opinion or public
feelings.”] and CALJIC No. 8.85 [enumerating aggravating and
mitigating circumstances for jury to consider like CALCRIM No.
763].)
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In Simon, we held that CALJIC Nos. 8.84.1 and 8.85 are
“sufficient to address a defendant’s concerns about the proper
use of victim impact evidence, and [are] consistent with his or
her federal and state constitutional rights to due process, a fair
trial, and a reliable penalty determination.” (Simon, supra, 1
Cal.5th at p. 143.) In so holding, we rejected the argument that
the trial court should have sua sponte instructed that penalty
phase jury to limit its consideration of that victim impact
evidence “to a rational inquiry into the culpability of the
defendant, not an emotional response to the evidence.” (Id. at
p. 142.) Like the Simon defendant’s argument, Tran’s argument
is similarly unavailing.
Third, Tran argues that CALCRIM Nos. 761 and 763 fail
to instruct the jury that its “pure emotional response to the
evidence should not influence its decision at all” and that victim
impact evidence is “a ‘circumstance’ of the crime.” But
CALCRIM No. 761 instructs the jury to not allow bias or
prejudice to influence its opinion in any way, so to the extent
that Tran asserts that a pure emotional response is an
impermissible bias or prejudice, any instruction along the lines
that Tran suggests “would not have provided the jurors with any
information they did not otherwise learn” from CALCRIM No.
761. (People v. Zamudio (2008) 43 Cal.4th 327, 369.) And to the
extent that Tran asserts that “a juror’s ‘emotional response’ to
the evidence may play no part in the decision to vote for the
death penalty,” he is mistaken: “[J]urors may, in considering
the impact of a defendant’s crimes, ‘exercise sympathy for the
defendant’s murder victim[] and . . . [her] bereaved family
members.’ ” (Ibid.)
In addition, CALCRIM No. 763 instructs the jury to
“consider and weigh” the “circumstances” “shown by the
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evidence.” Victim impact evidence, as noted, is admissible as a
“circumstance of the crime” under section 190.3 — as a matter
of that phrase’s plain meaning. Because CALCRIM No. 761 also
instructed the jury to apply words or phrases not specifically
defined in the instructions “using their ordinary, everyday
meanings,” we may infer that the jury understood that victim
impact evidence was a circumstance of the crime, even if no
instruction explicitly said as much. (Cf. People v. Lewis (2001)
25 Cal.4th 610, 669 [rejecting argument that “the various uses
of the term ‘circumstances’ in the standard jury instructions at
the penalty phase misled and confused the jury, in violation of
the due process clause and other federal constitutional
guarantees”].)
Fourth, Tran observes that the prosecutor took “full
advantage” of the victim impact evidence at the penalty phase
closing argument. To the extent that he wishes to challenge
these remarks, he has forfeited it by failing to object to them
below. (People v. Huggins (2006) 38 Cal.4th 175, 251–252.) In
any event, “a prosecutor may rely upon the impact of the victim’s
death on his or her family. The prosecutor in the present case
merely commented upon evidence we have determined was
admissible, as he was entitled to do. [Citation.] Although the
prosecutor’s argument had emotional impact, it was
permissible. We have acknowledged that emotion need not be
eliminated from the penalty determination. Although emotion
‘ “ ‘must not reign over reason,’ ” ’ it ‘ “ ‘need not, indeed, cannot,
be entirely excluded from the jury’s moral assessment.’ ” ’ ”
(People v. Dykes (2009) 46 Cal.4th 731, 787.)
Finally, Tran argues that his counsel was ineffective for
failing to request a clarifying instruction limiting the use of
victim impact evidence. But the penalty jury was properly
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instructed, so Tran’s counsel did not act unreasonably by failing
to request a clarifying instruction. (See People v. Benavides
(2005) 35 Cal.4th 69, 92–94.)
In sum, we conclude that the trial court did not abuse its
discretion by allowing the jury to consider this victim impact
evidence, nor did admitting this evidence render the trial
fundamentally unfair to Tran or otherwise unconstitutional.
D. Admission of Juvenile Criminal Offenses
Tran argues that the trial court violated the Eighth
Amendment by admitting evidence of his juvenile offenses
during the penalty phase.
1. Facts
As noted, the prosecutor called certain witnesses to testify
about two residential burglaries committed in June 1992. At
the time of both of these residential burglaries, Tran was 17
years old.
On June 24, 1992, David Schonder reported that jewelry,
camera equipment, a telephone, and a video camera were
missing from his home. Later, three latent fingerprints
recovered from his home were identified as Tran’s. Counsel then
stipulated that Tran, on May 5, 1993, “admitted an allegation in
a juvenile petition accusing him of committing a residential
burglary on June 24, 1992 in connection with the Schonder
residence.”
On June 26, 1992, a California Highway Patrol officer
detained Tran and David Du following a car accident. At an
Orange County Sheriff’s station, Tran told an officer that he and
two others stole a television, a camcorder, about 150 quarters
from a coin-filled jug, some fake jewelry, and a Nintendo video
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game from a home belonging to David Nesthus the day before,
on June 25, 1992. Tran also told the officer that he quickly
became nervous after entering the home because he thought its
inhabitants would return. One inhabitant, Jacqueline Nesthus,
testified that she discovered a butcher knife lying in their
bedroom closet that seemed to have been removed from a knife
block in the kitchen. Counsel then stipulated that on November
30, 1992, “Tran admitted an allegation in a juvenile petition
accusing him of committing a residential burglary on June 25,
1992 in connection with the Nesthus residence.”
During his penalty phase closing argument, the
prosecutor relied on this evidence in part to urge the jury to
determine that the appropriate penalty for Tran was death.
2. Analysis
“ ‘Section 190.3, factor (b), permits the penalty phase jury
to consider “[t]he presence or absence of criminal activity by the
defendant which involved the use or attempted use of force or
violence or the express or implied threat to use force or
violence.” ’ [Citations.] ‘ “ ‘Evidence of prior criminal behavior
is relevant under section 190.3, factor (b) if it shows “conduct
that demonstrates the commission of an actual crime,
specifically, the violation of a penal statute. . . .” ’ ” ’ ”
[Citations.] Accordingly, ‘although the fact of a juvenile
adjudication is inadmissible as a factor in aggravation’ because
juvenile adjudications ‘are not “prior felony convictions” within
the meaning of section 190.3, factor (c),’ such adjudications may
be admissible under factor (b), which ‘involves evidence of
violent conduct other than the capital crimes, regardless of
when the misconduct occurred or whether it led to a criminal
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conviction.’ ” (People v. Rivera (2019) 7 Cal.5th 306, 341–342
(Rivera).)
As an initial matter, the Attorney General concedes that
no evidence showed that the Schonder burglary “involved the
use or attempted use of force or violence or the express or
implied threat to use force or violence,” so “it appears that this
burglary does not qualify as [section 190.3,] factor (b) evidence.”
But Tran neither objected to this evidence below nor raises this
issue here. (Partida, supra, 37 Cal.4th at p. 434.) Even
assuming that Tran did not forfeit a challenge to this evidence,
its inclusion was harmless by any applicable standard in light
of the other aggravating evidence against Tran. (See People v.
Williams (2006) 40 Cal.4th 287, 316.)
Evidence of the Schonder burglary aside, the evidence
concerning the Nesthus burglary is admissible under section
190.3, factor (b). “Residential burglary is entering a residence
with the intent to steal or to commit any other felony.
[Citations.] Force or violence against a person thus is not an
essential element of residential burglary. However, a burglary
perpetrated in a violent or threatening manner may be
considered under section 190.3, factor (b).” (People v. Cowan
(2010) 50 Cal.4th 401, 496.) Evidence of the Nesthus burglary
was admissible under § 190.3, factor (b) because the jury could
reasonably infer that Tran had employed force or violence
during the burglary. (Cowan, at p. 497; see also People v. Clair
(1992) 2 Cal.4th 629, 676–677 [holding evidence admissible
under § 190.3 as criminal activity employing force or violence
where defendant broke into a then-unoccupied apartment, was
captured lying in the apartment occupant’s bed, and had
brought a butcher knife that was found in the bathroom].)
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While conceding we have rejected the argument before,
Tran argues that reliance on evidence of his juvenile criminal
activity violated his rights under the Eighth and Fourteenth
Amendments in light of the high court’s decisions in Roper v.
Simmons (2005) 543 U.S. 551, Graham v. Florida (2010) 560
U.S. 48, Miller v. Alabama (2012) 567 U.S. 460, and Hall v.
Florida (2014) 572 U.S. 701.
“ ‘It is well established the federal Constitution does not
bar consideration of unadjudicated criminal offenses.’
[Citation.] ‘Roper does not compel exclusion of such evidence.’
[Citation.] ‘That case holds that the execution of individuals
who were under 18 years of age at the time of their capital
crimes is prohibited by the Eighth and Fourteenth
Amendments. It says nothing about the propriety of permitting
a capital jury, trying an adult, to consider evidence of violent
offenses committed when the defendant was a juvenile. An
Eighth Amendment analysis hinges upon whether there is a
national consensus in this country against a particular
punishment. [Citations.] Defendant’s challenge here is to the
admissibility of evidence, not the imposition of punishment.’
[Citation.] We have also observed that the same reasoning
applies to Miller v. Alabama and Graham v. Florida. We
concluded these cases ‘do not address the question of whether
evidence of juvenile misconduct can be considered on the
question of what punishment a defendant may receive for crimes
committed as an adult.’ [Citation.] We also observed that the
high court’s more recent decision in Hall v. Florida was ‘even
further afield from this question’ because the United States
Supreme Court ‘never suggested that evidence of juvenile
misconduct may not be admitted in deciding the proper
punishment for crimes an adult commits.’ ” (Rivera, supra, 7
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Cal.5th at pp. 342–343.) We see no reason here to reconsider
these decisions.
Apart from his Roper-based Eighth Amendment claim,
Tran also argues that the Eighth Amendment’s heightened
reliability requirement in capital cases forbids courts from
admitting juvenile convictions obtained without the right to a
jury trial as evidence at the penalty phase of a capital trial. But
there were no juvenile convictions introduced below; there were,
however, two stipulations containing two admissions to
allegations from separate juvenile petitions. This evidence, at
least as to the Nesthus burglary, was admissible under section
190.3, factor (b), as Tran concedes. Moreover, Tran “waived his
claim by his counsel’s decision to enter the stipulation.” (People
v. Gallego (1990) 52 Cal.3d 115, 195.) And further still, we have
held that evidence of juvenile misconduct admissible under
section 190.3, factor (b) does not violate a defendant’s “rights
under the Eighth and Fourteenth Amendments to the federal
Constitution to a reliable, nonarbitrary sentencing decision, to
a sentence proportionate to his culpability, and to due process of
law.” (People v. Lee (2011) 51 Cal.4th 620, 648.)
In sum, we conclude that the trial court did not err by
allowing the penalty jury to consider this evidence to determine
the appropriate punishment for Tran.
E. Denial of Allocution Request
Tran argues that the trial court violated his federal due
process rights by denying him the opportunity to allocute
without being cross-examined during the penalty phase of the
trial, even though he recognizes that “ ‘we have repeatedly held
there is no right of allocution at the penalty phase of a capital
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trial.’ ” (People v. Romero (2008) 44 Cal.4th 386, 426, quoting
People v. Lucero (2000) 23 Cal.4th 692, 717.)
“ ‘In legal parlance, the term “allocution” has traditionally
meant the trial court’s inquiry of a defendant as to whether
there is any reason why judgment should not be pronounced.
[Citations.] In recent years, however, the word “allocution” has
often been used for a mitigating statement made by a defendant
in response to the court’s inquiry.’ ” (People v. Tully (2012) 54
Cal.4th 952, 1057, fn. 39, quoting People v. Evans (2008) 44
Cal.4th 590, 592, fn. 2 (Evans).) The traditional understanding
is embodied in section 1200. “Under that section, the trial court
must ask a defendant, before imposing sentence, whether there
is ‘any legal cause to show why judgment should not be
pronounced against him.’ (§ 1200.)” (Tully, at p. 1057.)
Here, the trial court asked whether there was “any legal
cause as to why [the] sentence should not be imposed” during its
“automatic review of the jury’s recommended sentence.” Tran’s
counsel replied, “No.” That satisfies section 1200. Tran thus
appears to argue that he has a federal due process right to make
a mitigating statement. In so arguing, Tran asks us to
reconsider our decisions here in light of Boardman v. Estelle (9th
Cir. 1992) 957 F.2d 1523 (Boardman).
We have already considered and rejected this Boardman-
based invitation in People v. Clark (1993) 5 Cal.4th 950, 1036.
The Boardman court held that the failure to allow a noncapital
defendant who requests to address the court before sentencing
is a denial of federal due process. (Boardman, supra, 957 F.2d
at p. 1525.) But because a defendant during the sentencing
phase of a capital trial “ ‘is allowed to present evidence as well
as take the stand and address the sentencer,’ ” we have
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discerned no constitutional “ ‘ “right to address the sentencer
without being subject to cross-examination” in capital cases.’ ”
(Clark, at p. 1037, quoting People v. Robbins (1988) 45 Cal.3d
867, 889; see also Evans, supra, 44 Cal.4th at p. 600 [California
statutory law “gives a criminal defendant the right at
sentencing to make a sworn personal statement in mitigation
that is subject to cross-examination by the prosecution. This
affords the defendant a meaningful opportunity to be heard and
thus does not violate any of defendant’s rights under the federal
Constitution.”].)
In sum, we conclude that the trial court did not err by
denying Tran the opportunity to allocute without being cross-
examined during the penalty phase.
F. Juror Misconduct
Tran argues that juror misconduct during the penalty
phase requires reversal or remand. In particular, Tran claims
that the trial court mistakenly denied his motion for a new trial
founded on the penalty jury receiving extraneous information
about the death penalty, which requires reversal; that the trial
court’s investigation to determine the extent of juror misconduct
was inadequate, which requires remand; and that the trial court
did not determine whether a previously undisclosed part of a
juror’s typewritten document evinces prejudicial juror
misconduct, which also requires remand.
1. Facts
After the penalty jury returned its verdicts, a three-page
typewritten document was found in the jury room in a folder
containing the jury instructions. It was titled “Life, or Death?”
and written by the penalty foreperson, Juror No. 7. The trial
court described this document as “a thought-process thing” —
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“nothing more than [Juror No. 7] putting down his thoughts” —
but the court believed one paragraph merited inquiry. That
paragraph said: “I cannot allow the fact that the American Bar
Association has recently resumed its campaign for a national
moratorium on the death penalty to influence my judgment in
this case. Likewise, I cannot consider the fact that the U.S.
Supreme Court has agreed to review a case challenging the
legality of execution by lethal injunction as cruel and unusual
punishment as I judge this case.”
The trial court called Juror No. 7 into court, swore him in,
and questioned him. Juror No. 7 admitted that he had written
the typewritten document. It was “a written summary of my
personal private deliberations in the case,” Juror No. 7 said,
explaining that expressing issues “that are very complex and
also very important” in writing “enforces clarity of thought.” He
wrote it “toward the end of the trial” and brought it on the last
day of deliberations so that he could “refer to it personally,
privately,” and leaving it behind “was absolutely accidental and
unintentional.” Juror No. 7 did not read any of it to his fellow
jurors. Although the trial court allowed him to choose whether
to share the typewritten document with counsel, Juror No. 7
preferred that it remained private.
Then, the trial court asked Juror No. 7 about the
paragraph discussing the moratorium campaign and the high
court news. Juror No. 7 explained that “the story about the
Supreme Court’s action broke” during the trial and that it was
“the lead story in the Los Angeles Times that day,” was “the top
story on all the television news broadcasts,” and was “all over
the internet.” This story “wasn’t something I sought out” but
“something I simply happened to see,” he said.
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Next, the trial court asked Juror No. 7 whether the jurors
discussed the news about the moratorium campaign or the high
court. Juror No. 7 said that another juror “brought the Supreme
Court news item up,” so he wrote about it in his document
because he felt obliged, as the foreperson, “to make sure that if
somebody else brought that up, that everyone was reminded
that we could not allow that in any way to influence our
deliberations.” Juror No. 7 reiterated that he reminded “the
other jurors that we could not allow either of those facts to affect
our judgment in the case.” Juror No. 7 also recalled that this
“was not discussed again” after his reminder. Juror No. 7 also
said that the discussion of the news article “was really very
brief,” thought that another male juror brought up the news
article, and recalled that this male juror had mentioned that he
had seen this article in a newspaper.
After this, the trial court excused Juror No. 7. “I have
reviewed the document,” the trial court told the juror before
excusing him, “and it confirms my opinion that this is a
recitation of your thought process. From what I’ve heard so far,
I don’t see anything that was improper, so rest easy. At this
point there doesn’t appear to be anything, to me, anyway, that
is untoward at all.”
Based on Juror No. 7’s responses, Tran moved to access
every juror’s identifying information according to Code of Civil
Procedure section 237. The prosecutor thought that soliciting
information from the other male jurors would be helpful, so he
suggested that the trial court summon and question them about
the moratorium campaign and the high court news. Although
the trial court did not “see enough to order jurors in,” it agreed
to notify all jurors and to hold a hearing according to Code of
Civil Procedure section 237. The trial court’s notice informed
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jurors that they would be asked to discuss whether “their
decision in the penalty phase of the trial was affected by
discussions of matters that were not presented by way of
evidence or the law upon which the jury was instructed” if they
appeared at this hearing. It also informed jurors that they could
personally appear at the hearing to protest the disclosure of
their information, that they could contact the clerk to protest
the disclosure of their information, or that they could notify the
trial court of their desire not to be contacted by defense counsel.
About four months after the penalty jury determined that
the appropriate sentence for Tran was death, the trial court held
this hearing. Juror No. 2 believed that a moratorium on lethal
injection was “brought up” as an aside but did not believe that
it was “used as any part of the decision making.” He also
recalled that the “head juror said at the time that ‘we are not
supposed to consider that’ ” and that the entire discussion lasted
about 15 seconds. He could not recall who mentioned the
moratorium or whether anyone consulted any extraneous
written material.
Juror No. 3 did not recall anyone saying anything about
“any moratorium on lethal injections for executions.” Nor could
she remember whether the foreperson admonished them not to
discuss the moratorium, whether anyone discussed the
American Bar Association’s (ABA) stance on the death penalty
or the high court’s decision to review a case involving a lethal-
injection moratorium, or whether they received any extraneous
information. Yet she thought that she herself had heard
something about a moratorium on the death penalty. But she
was unsure whether she heard about this while the jury
deliberated; she said she did not think so because she “didn’t
watch a lot of T.V. or read newspapers or anything.” Although
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she did not object to her identifying information being disclosed
to counsel, Juror No. 3 did not want her information
disseminated any further.
Juror No. 7, who returned for this hearing, said much the
same as he had before. He could not remember who mentioned
the moratorium campaign but recalled that “when it came up,”
he “immediately said, ‘We cannot allow that — any of that to
influence our thinking.’ ” He thought that the moratorium
campaign had been mentioned on the first day of deliberations,
did not remember any other discussion of it, and reiterated that
he did not show his “notes” to anyone else.
And Juror No. 9 did not recall any discussion about either
a moratorium on lethal injections or the ABA’s stance on the
death penalty. Nor did she recall anyone bringing in paperwork
that was not part of the evidence into deliberations. Yet she
recalled “hearing something about the suspension of executions,
not necessarily that it was lethal injection, but I don’t recall if it
was during — before or after the trial.”
After these jurors were questioned, defense counsel moved
the trial court to release the identifying information of the jurors
who did not appear, but the trial court denied this motion,
stating: “I can see nothing that’s been presented to this court to
lead this court to believe that there was anything improper
rising to the level of juror misconduct. In fact, it sounds like
things were handled appropriately.” To investigate further, “I
would have to disbelieve what these jurors have already told this
court in the hope that throwing the line in the water would
somehow grab some fish, and that is not the purpose of this
proceeding,” the trial court continued. Besides denying this
request to investigate further, the trial court also declined to
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disclose all of Juror No. 7’s typewritten document, explaining
that it “was completely his thought process.” Tran
unsuccessfully challenged the trial court’s denial of his request
for additional juror information before the Court of Appeal and
before this court.
Tran then moved for a new trial on juror misconduct
grounds. The trial court denied this motion at a hearing. “The
issue of juror misconduct,” the trial court said, “was considered.
It was investigated, it was litigated. There was no juror
misconduct. The court invited all jurors to discuss the issue. I
believe, if I’m not mistaken, five — four chose to appear.” Juror
No. 7’s typewritten document, it continued, “is merely a note to
oneself as to the thought process of a juror in making a
determination.”
At Tran’s request, we ordered unsealed all of Juror No. 7’s
typewritten document. Besides the aforementioned paragraph,
this document stated in relevant part: “I must follow the law
and the judge’s instructions as they are given to me. [¶] . . .
Simple but sound logic leads to the conclusion that no juror
should project his or her personal religious value and moral code
onto this case.” It continued: “The defendants in this case do
not fit my definition of ‘penitent.’ I think their remorse may be
genuine, but the fact that they did not voluntarily submit
themselves to the law and confess their crimes taints their
remorse, and disqualifies them as truly penitent in my view.
They may be sorry for killing Linda Park, but they are also sorry
they were caught and convicted.”
It also said: “I feel compelled to ask: Is forgiveness mine
to give in the form of a jury vote and verdict? I am not the one
who has been victimized. I must remember that while I may
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consider the impact of the crime on the victim’s family, I do not
represent them as I judge. My duty is to be impartial and
dispassionate.” It went on: “These defendants are not illiterate
or ignorant. Their moral compasses are not defective; they know
what they did is terribly evil. The crime required sustained
murderous intent. If either of them feels remorse, it may be
genuine, but it is not pure and it is too little too late. Remorse
merely signifies that your moral compass is working. Remorse
is but the first step in true penitence. I am sure they are both
sorry the police caught up with them; if they were truly penitent
they would have turned themselves in, confessed, and
attempted to make some kind of effort at restitution. I doubt
they would have done so by now if the police had [sic] caught
them. Mr. Ciulla stated in court that mercy was something
freely given, without price. I believe otherwise; the price of
mercy is genuine penitence, which consists of remorse,
confession, forsaking, and restitution. Would the defendants
still be free men today, keeping their secrets, if the police had
not detected them?”
The document concluded: “Bottom line: neither of the
defendants was raised in crushing poverty and/or a sociopathic
family environment. No one forced them to join a street gang.
They were old enough to know that criminal activity is morally
wrong and can carry severe punishment. They entered the Park
residence with criminal intent. While there, they improvised a
murder weapon and used it to take the life of a completely
innocent young girl in the sanctum of her own home for two
reasons: to insure their financial benefit from the robbery, and
to prevent her from identifying them after the robbery. From
the start, their motives were entirely selfish. The crime they
committed is repulsive in its motivation and heinous in its
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execution. Their remorse for killing her may be genuine, but so
is their remorse for being caught and convicted. Remorse alone
is insufficient, in my opinion, to merit mercy. There are no
mitigating circumstances in this case that even come close to
counterbalancing the gravity of the defendants’ actions.”
2. Analysis
“ ‘A defendant accused of a crime has a constitutional right
to a trial by unbiased, impartial jurors.’ [Citation.] ‘Juror
misconduct, such as the receipt of information about a party or
the case that was not part of the evidence received at trial, leads
to a presumption that the defendant was prejudiced thereby and
may establish juror bias.’ [Citation.] Even a juror’s ‘inadvertent
receipt of information that had not been presented in court falls
within the general category of “juror misconduct.” ’ ” (People v.
Miles (2020) 9 Cal.5th 513, 601 (Miles); see also § 1181.)
To determine whether juror misconduct involving jurors
receiving information from extraneous sources is prejudicial, we
review the entire record and set aside the judgment only if we
conclude that a substantial likelihood of juror bias exists.
(Miles, supra, 9 Cal.5th at p. 601.) “ ‘Such bias can appear in
two different ways. First, we will find bias if the extraneous
material, judged objectively, is inherently and substantially
likely to have influenced the juror.’ ” (Ibid.) “ ‘Second, we look
to the nature of the misconduct and the surrounding
circumstances to determine whether it is substantially likely the
juror was actually biased against the defendant.’ ” (Ibid.)
“ ‘We emphasize that before a unanimous verdict is set
aside, the likelihood of bias under either test must be
substantial.’ [Citation.] ‘Jurors are not automatons. They are
imbued with human frailties as well as virtues. If the system is
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to function at all, we must tolerate a certain amount of
imperfection short of actual bias. To demand theoretical
perfection from every juror during the course of a trial is
unrealistic.’ ” (Miles, supra, 9 Cal.5th at pp. 601–602.)
“In reviewing the trial court’s ruling, ‘[w]e accept the trial
court’s credibility determinations and findings on questions of
historical fact if supported by substantial evidence. [Citations.]
Whether prejudice arose from juror misconduct, however, is a
mixed question of law and fact subject to an appellate court’s
independent determination.’ ” (Miles, supra, 9 Cal.5th at p.
602.)
Although the Attorney General acknowledges the penalty
jury receiving news of the moratorium campaign and the high
court’s decision to review the legality of execution via lethal
injection likely constitutes juror misconduct and results in a
presumption of prejudice, we need not decide whether that is so,
for no substantial likelihood of juror bias exists here. This is
because the extraneous material is not inherently prejudicial or
substantially likely to have influenced the jury, nor is it
substantially likely that jurors were actually biased against
Tran.
Extraneous material is inherently prejudicial when its
introduction at trial would have warranted reversal of the
judgment. (In re Carpenter (1995) 9 Cal.4th 634, 653.) Because
Tran had already been found guilty by the time that the jury
received this information, our inquiry focuses on whether the
introduction of this information during the penalty phase would
have warranted reversal of the penalty determination. (See id.
at pp. 647–655.) Had this extraneous material been introduced
at the penalty phase, it would not have warranted reversal of
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the penalty determination because this extraneous material did
not directly concern Tran’s trial. People v. Hardy (1992) 2
Cal.4th 86 (Hardy) is instructive. There, we held nonprejudicial
newspaper articles about “ ‘cases and jury selections’ ” — one of
which discussed a particular trial of the judge that oversaw the
defendants’ trial, another of which quoted this judge
commenting on court reform and displayed a photo of him, and
the third of which neither quoted the judge nor referenced
defendants’ trial — that defendants alleged that 10 out of 12
jurors and every alternate juror had read, because these articles
did not “contain[] accounts of defendants’ trial” and “presented
generalized arguments concerning the criminal justice system
as a whole.” (Id. at pp. 175, 176.)
The same is true here. There is no evidence that the news
of the moratorium campaign or of the high court “contain[]
accounts of defendants’ trial.” (Hardy, supra, 2 Cal.4th at
p. 176; see also People v. Pinholster (1992) 1 Cal.4th 865, 924
[“As the trial court found, on its face the [news article about a
different, unrelated capital defendant] had absolutely nothing
to do with defendant’s case.”].) There is no evidence that the
moratorium campaign presented anything other than
“generalized arguments concerning the criminal justice system
as a whole.” (Hardy, at p. 176.) Nor is there evidence that this
extraneous information misled the jurors into thinking that
responsibility for deciding how to punish Tran lay elsewhere.
(See Caldwell v. Mississippi (1985) 472 U.S. 320, 330–341;
Romano v. Oklahoma (1994) 512 U.S. 1, 10; People v. Ledesma
(2006) 39 Cal.4th 641, 733 [“Caldwell simply requires that the
jury not be misle[d] into believing that the responsibility for the
sentencing decision lies elsewhere.”].)
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In addition, it is not substantially likely that the jurors
were actually biased against Tran in light of “the nature of the
misconduct and the surrounding circumstances.” (Miles, supra,
9 Cal.5th at p. 601.) In this context, “actual bias” means “ ‘the
existence of a state of mind on the part of the juror in reference
to the case, or to any of the parties, which will prevent the juror
from acting with entire impartiality, and without prejudice to
the substantial rights of any party’ ” and “may include a state of
mind resulting from a juror’s actually being influenced by
extraneous information about a party.” (People v. Nesler (1997)
16 Cal.4th 561, 581, quoting Code Civ. Proc., § 225,
subd. (b)(1)(C).)
Here, it is not substantially likely that the jurors were
actually biased against Tran considering how quickly and
superficially the jurors discussed this extraneous material and
how speedily Juror No. 7 admonished against discussing it
further. The trial court found, and substantial evidence
supports, that the discussion about the extraneous information
lasted about 15 seconds, Juror No. 7 immediately admonished
the jury against considering this information further, and no one
discussed the information again after this admonishment.
When a juror reminds his fellow jurors of the trial court’s
instruction and no evidence exists to question the reminder’s
effectiveness, the reminder is “strong evidence that prejudice
does not exist.” (People v. Lavender (2014) 60 Cal.4th 679, 687;
see also id. at pp. 687–692.) Although Juror No. 3 and Juror No.
9 could not recall whether this discussion even happened, this
lack of recollection is not inconsistent with a seconds-long
discussion of a topic that was not discussed again.
In sum, because the jury received news that was not about
Plata or Tran, discussed this news only for a brief period of about
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15 seconds, were immediately admonished against considering
it further, and did not do so, we conclude that no substantial
likelihood of juror bias exists.
Alternatively, Tran claims that the trial court’s inquiry
into the moratorium campaign and the high court news was
inadequate. According to Tran, further inquiry is needed to
determine which juror mentioned this extraneous information
during the penalty jury’s deliberations, “along with any details
of the exposure of the news stories to this juror and the
remaining jurors.” There is little reason, Tran asserts, for us to
“believe that this unknown juror” — the juror who mentioned
the extraneous information — “followed Juror [No.] 7’s
admonition to rely only on evidence presented in court.”
But “the trial court acted well within its considerable
discretion in deciding that no further inquiry was necessary”
under these circumstances. (Linton, supra, 56 Cal.4th at
p. 1214.) To allow Tran further investigation would require us
“to disbelieve what these jurors” — Jurors No. 2, 3, 7, and 9 —
“have already told [the trial] court in the hope that throwing the
line in the water would somehow grab some fish.” Because Tran
“is not entitled to conduct a ‘ “ ‘fishing expedition’ ” ’ for possible
misconduct,” we conclude that the trial court did not abuse its
discretion by preventing him from embarking on one. (Linton,
supra, 56 Cal.4th at p. 1214.)
Finally, Tran asserts that the undisclosed portion of Juror
No. 7’s typewritten document evinces misconduct beyond the
claimed misconduct about the moratorium campaign and high
court news, which requires remand to allow the trial court to
investigate further. In particular, Tran argues that this
undisclosed portion of Juror No. 7’s typewritten document shows
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that Juror No. 7 disregarded the trial court’s instructions to
consider only the evidence presented at trial, not to deliberate
unless and until all 12 jurors are in the jury room, and not to
draw any adverse inferences against Tran for his decision not to
testify.
Tran agrees that the undisclosed portion of the document
is inadmissible to prove that while the penalty jury deliberated,
Juror No. 7 thought that Tran lacked remorse because he did
not testify or confess to his crimes. Rather, Tran asserts that
the undisclosed portion of the document is admissible to prove
that Juror No. 7 “actually made the statements that Mr. Tran’s
silence and failure to confess evidenced a lack of remorse.” In
other words, Tran alleges that Juror No. 7 in fact said aloud
during deliberations that he thought Tran’s silence and failure
to confess reflected a lack of remorse, thereby disregarding the
trial court’s instructions.
Tran’s argument amounts to a request for the trial court
to investigate whether Juror No. 7 said certain statements aloud
based on the contents of the undisclosed portions of Juror No.
7’s typewritten document. But a hearing to determine the truth
or falsity of allegations of jury misconduct “should be held only
when the defense has come forward with evidence
demonstrating a strong possibility that prejudicial misconduct
has occurred.” (People v. Hedgecock (1990) 51 Cal.3d 395, 419.)
Even assuming that the undisclosed portion of Juror No.
7’s typewritten document is admissible and that his alleged oral
statement constitutes misconduct, the typewritten document
does not demonstrate a strong possibility that Juror No. 7
actually said the alleged statement aloud. Nothing in the
undisclosed portion of the typewritten document indicates that
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Juror No. 7 did so. The trial court credited Juror No. 7’s remarks
that the typewritten document was for his personal, private
reference; that he did not read any of it to his fellow jurors; and
that leaving it behind was an accident and unintentional. On
this record, we have no basis to infer from a document that Juror
No. 7 intended to keep private that he said aloud the very things
he wished to shield. Plus, given that Juror No. 7 mentioned the
moratorium campaign and the high court news and cautioned
himself against considering them, one might think the
document would mention any improper statement that he
uttered aloud, especially since Juror No. 7 did not expect others
to view this document. But no such mention exists. Altogether,
the undisclosed portion of the typewritten document does not
demonstrate a strong possibility that Juror No. 7 in fact uttered
this alleged statement.
In sum, we reject Tran’s claim that the undisclosed portion
of Juror No. 7’s typewritten document requires remand.
G. Death Penalty for Crimes Committed by a 20
Year Old
Tran was 20 years old when he committed these crimes,
and he argues that imposing the death penalty on persons for
crimes committed while they were 18 to 20 years old violates the
state and federal Constitutions because it is cruel and unusual
punishment and because a death sentence cannot be reliably
imposed on such youthful offenders like Tran. In support of this
claim, he cites Roper and related decisions.
We have recently rejected these arguments and decline to
revisit them today. We have observed that “the high court in
Roper recognized that the ‘ “ ‘qualities that distinguish juveniles
from adults do not disappear when an individual turns 18,’ ” ’
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but nonetheless held that the ‘ “ ‘age of 18 is the point where
society draws the line for many purposes between childhood and
adulthood’ ” ’ and is ‘ “ ‘the age at which the line for death
eligibility ought to rest.’ ” ’ ” (Flores, supra, 9 Cal.5th at p. 429,
quoting People v. Powell (2018) 6 Cal.5th 136, 191, 192.) Nor
are death sentences inherently unreliable “for those ages 18 to
21.” (Flores, at p. 430.)
Tran “does point to various developments from the past
few years, including a 2018 resolution from the American Bar
Association House of Delegates urging the prohibition of the
death penalty for those ages 21 and under (Res. No. 111 (Feb.
2018)); a nonprecedential opinion from a trial court in Kentucky
declaring the death penalty unconstitutional for this same
group (Commonwealth v. Bredhold (Ky.Cir.Ct., Aug. 1, 2017,
No. 14-CR-161) 2017 WL 8792559); and the California
Legislature’s expansion of Penal Code section 3051, subdivision
(a)(1), which provides ‘youth offender parole hearing[s]’ to
inmates who were 25 or younger at the time of their
commitment offense.” (Flores, supra, 9 Cal.5th at p. 429.) But
“these developments do not establish the ‘national consensus’
necessary to justify a categorical bar on the death penalty for
individuals between the ages of 18 and 21 at the time of their
offenses. [Citation.] Nor has defendant presented much in the
way of new scientific evidence that might be relevant to the
issue.” (Ibid.)
H. Miscellaneous Challenges to the Death Penalty
Tran presents many challenges to the constitutionality of
California’s death penalty scheme, while acknowledging that we
have rejected them before. We decline to revisit the following
precedent:
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“Penal Code section 190.3, factor (i) (the age of the
defendant) is not unconstitutionally vague.” (Rices, supra, 4
Cal.5th at p. 94.)
“There is no federal constitutional requirement, either
under the Fifth, Sixth, Eighth, or Fourteenth Amendments, that
the jury make unanimous findings regarding the aggravating
factors or the truth of the unadjudicated criminal activity
admitted under section 190.3, factor (b).” (Schultz, supra, 10
Cal.5th at p. 683.)
“Allowing a jury that has convicted the defendant of first
degree murder to decide if he has committed other criminal
activity does not violate the right to an unbiased decision maker
under the Sixth, Eighth, and Fourteenth Amendments to the
federal Constitution.” (People v. Williams (2013) 56 Cal.4th 165,
201.)
“The trial court’s instructions need not ‘delete inapplicable
sentencing factors, delineate between aggravating and
mitigating circumstances, or specify a burden of proof either as
to
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