Petition — Woo Chin Tong v. California
Supreme Court brief1983
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IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1983
WOO CHIN TONG,
Petitioner,
vs.
THE PEOPLE OF THE STATE
OF CALIFORNIA,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
PETITION FOR WRIT OF CERTIORARI
LUKE McKISSACK
9911 West Pico Boulevard
Suite 1000
Los Angeles, California 90035
(213) 557-1226
Attorney for Petitioner
Dean-Standefer, P.O. Box 626, Corona, Ca. 91720 - (714) 734-0811
QUESTIONS PRESENTED
In a murder prosecution where the defense of involun-
tary manslaughter is both requested in instructions and
amply justified by the evidence, can the State hold that the
jury cannot consider the defense unless the evidence stated
from a position most favorable to the prosecution substan-
tially supports such a finding?
Can a conviction be upheld where even the State of
California acknowledged that the prosecutor committed
prejudicial misconduct by telling the jury that the defend-
ant belonged to a Chinese youth gang and similarly acknow-
ledged that one of the jurors in the case received highly
damaging evidence which she was not entitled to hear while
serving in the capacity of alternate juror and thereafter took
the evidence to the deliberation room?
PARTIES TO PROCEEDING
The only defendant in this matter, and the petitioner
herein, is WOO CHIN TONG.
ii
TOPICAL INDEX
Page
Questions Presented i
Parties to Proceeding i
Topical Index ii
Table of Authorities Cited iv
Petition for Writ of Certiorari .........0 00005: l
MCLG CR EGS webs see sccscees l
EE 2
Constitutional Provisions Involved ............ 2
Statement of the Case 0... cece eee ees 3
CO 4
Reasons for Granting the Writ ...........0005- 5
PCC SCLE MER WONS Ges es ec oeereccceees 7
I The case should be reversed because jury
instructions relating to the defense of
involuntary manslaughter were not given,
resulting in a jury ramrodded into a second
degree murder conviction which otherwise
would have been improbable. The failure to
permit the jury to consider the defense of
involuntary manslaughter and the State of
California’s position that only evidence
favorable to the state should be considered
in deciding whether to allow the jury to
consider a verdict of involuntary manslaughter
clearly contravened petitioner's right to a
Fair Trial under the Fourteenth Amendment
to the United States Constitution.......... 7
TOPICAL INDEX
Argument (cont'd)
Il
The entire record demonstrates that the
prosecuting attorney failed in his duties
as the representative of the sovereignty,
whose words are believed by the average
jury, and was guilty of purposeful and
flagrantly prejudicial misconduct, thereby
depriving petitioner of his right to a Fair
Trial guaranteed to him under the Sixth
and Fourteenth Amendments to the United
States Constitution. Moreover, all hope of
a Fair Trial vanished when damaging inad-
missible evidence visited the jury room
in the form of information concerning ‘‘gang
membership’’—which the California courts have
held especially highly prejudicial in the Los
pe Pr reer ech st eee ee
A. Statement of evidence of prejudicial
misconduct of the prosecutor and
the improper receipt of evidence im-
pairing defendant’s right to a Fair Trial
(see also Appendix “D”) ..........4.
B. The legal decisions governing the
situation call for a reversal due to
prejudicial misconduct by the prose-
cutor and the improper receipt of evi-
dence resulting in a jury verdict based
upon materials this Court has held could
not serve as the basis of a conviction.
The California appellate court acknowledg-
ed both of these errors but then applied
the wrong analysis of the effect of the
ae
errors to affirm the judgment ..-. 7...
C. BROOD aig hashed anes
CNS bails 65S Sao eee
Page
17
17
iv
TABLE OF AUTHORITIES CITED
Cases
Berger v. United States, 225 U.S. 78,
eR Me Bee, 2: |. | ne ae ener ee ar eae
Douglas v. Alabama, 380 U.S. 415 (1965) ......
Hall v. United States, 419 F.2d 582
SR I or gene arg ig hk ote wc S
Handford v. United States, 249 F.2d 295
SPN ois he ea W ene an nee ayes
In re Wing Y, 67 Cal. App. 3d 69,
ee Reo.) rear er
In re Winship, 397 U.S. 358, 905 S.Ct. 1068,
yo Oe ee Oy) eee
Irwin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639
Re as ca ae eae ae ON ek whe
Mares v. United States, 383 F.2d 805 (10th
Cir. 1967), cert. denied, 394 U.S.
IRC en Bb Le tens SAE ar ake Re
Michelson v. United States, 335 U.S. 469,
og a ek es | Re eee
Mullaney v. Wilbur, 421 U.S. 684 (1975).......
Parker v. Gladden, 385 U.S. 363,
Oe es CUED. bbc cance dace earaee
Patterson v. United States, 205 U.S. 454 (1907) ..
People v. Alfreds, 251 Cal. App. 21, 59 C.R.
| LUBE at eRe re one er CT onee ne Rear
Vv
TABLE OF AUTHORITIES CITED
Cases (cont'd)
People v. Brown, 61 Cal. App. 3d 476,
Ee Ee Se NTO anh a 00k 66000 ceed
People v. Cardenas, 31 Cal. 2d 897 (1982) ......
People v. Carmen, 36 Cal. 2d 768,
Pee SP RNUED 404-0 06 ee4n kee ouess
People v. Dewberry, 51 Cal. 2d 548 (1959) ......
People v. Doolittle, 23 Cal. App. 3d 21,
ee DIU = cx enes ek ce ans vor
People v. Flannel, 25 Cal. 3d 668,
SECIS cn bb kas a dade Rane on ew paws
People v. Heffington, 32 Cal. App. 3d 1,
ST RAM ER EPTAD 9 40.0% 1600s tiveans
People v. McManis, 26 Cal. App. 3d 608,
Eo cn nw oa ba ed's o ear wae eS
People v. Sedeno, 10 Cal. 3d 703,
Se Ge SUEUEE: 6 bane vcdcdyehawie
Pointer v. Texas, 380 U.S. 400 (1965) ..........
Rideau v. State of Louisiana, 373 U.S.
Fa ee es PNT COD cass co cvasen ans
Shepard v. Maxwell, 384 U.S. 333,
| rene
Turner v. Louisiana, 379 U.S. 466,
ae Ga SOE «© koe c's co sen b 0 00s eus
United States v. Achilli, 234 F.2d 409
TRU SOD ON bund hewn baaacee cutee
vi
TABLE OF AUTHORITIES CITED
Cases (cont'd) Page
United States v. Bukowski, 435 F.2d 1094
OPER. ISTE) ciavicsccccccederecscevens 21
Washington v. Texas, 388 U.S. 14(1967)........ 6, 16
Webb v. Texas, 409 U.S. 95 (1972) oo. cece eae 6, 16
Statutes (United States)
Be UCR. TEST) vicccvccscesencccsscnscas
United States Constitution
is ad's bi -aceard bce) 00k BOA CR ee
Fourteenth Amendment ..ccvcccscscscccege de fie 7
Statutes (California)
Penal Code
RE ore tenes Se ee wiowis ea ea 3
CSC a UAC Gar wad ede C66 eekn eer eCEes 16
CLL S ce Se eee sa au hese Pee Ee RSC eR 8
nr ree Tre ree rrr 3,4
DE SiC sc debe ee eters ss ee ae Lee can 3,4
California Jury Instructions
CALJIC 8.31 (1974 Rev.) (set forth at Appendix
PE ceaghtceur bade West eneedee) 10, 12
CALJIC 8.41 (set forth at Appendix “A’’p. 5) .. 10
CALJIC 8.51 (1980 Rev.) (set forth at Appendix
. Beer ere ee rer rrr 10
vii
TABLE OF AUTHORITIES CITED
Text
Code of Professional Responsibility,
American Bar Association, Ethical
Consideration 7-13, Canon 7)... cee eee vee
Page
20
BOGS saves
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1983
WOO CHIN TONG,
Petitioner.
VS.
THE PEOPLE OF THE STATE
OF CALIFORNIA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
Petitioner, Woo Chin Tong, the only party to this pro-
ceeding, respectfully prays that a writ of certiorari issue to
review the judgment of the Court of Appeal of the State of
California, Second Appellate District, filed February 28, 1983.
OPINIONS BELOW
The trial below was by jury. The decision of the Court of
Appeal of the State of California, Second Appellate Distnct,
=
affirming the judgment is contained in Appendix ‘‘A”’ hereto.
A Petition for Rehearing was presented and denied (Appendix
“B"’), A timely Petition for Hearing was denied by the Supreme
Court of the State of California on May 19, 1983, and a copy
of the post card notice thereof is contained in Appendix “C”’.
JURISDICTION
The jurisdiction of this Court is invoked pursuant to
28 U.S.C. § 1257(3).
CONSTITUTIONAL PROVISIONS INVOLVED
Sixth Amendment:
“In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial,
by an impartial jury of the state and district
wherein the crime shall have been committed,
which district shall have been previously ascer-
tained by law, and to be informed of the nature
and cause of the accusation; to be confronted with
the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and
to have the assistance of counsel for his defense.”
Fourteenth Amendment:
“*A'l persons bor or naturalized in the United
States, and subject to the jurisdiction thereof,
are citizens of the United states and of the state
wherein they reside. No state shall make or enforce
any law which shall abridge the privileges or im-
munities of citizens of the United States; nor shall
ie
any state deprive any person of life, liberty, ¢
property, without due process of law; nor deny
to any person within its jurisdiction the equal pro-
tection of the laws.”’
STATEMENT OF THE CASE
On September 12, 1980, an Information was filed
in the Superior Court in and for the County of Los Angeles
alleging that the defendant, Woo Chin Tong, on June 28,
1980, murdered Ralph Chew in violation of California Penal
Code § 187 (Clerk’s Transcript 1 [hereinafter C.T.]) He was
additionally charged with using a firearm during the commission
of the offense, in violation of Califorma Penal Code §§ 12022.5
and 1203.06 (C.T. 1, 17). He pled not guilty to the above
charges (C T. 2). Motions for discovery, disclosure of the
informant’s identity and disclosure of police personnel records,
to suppress the products of his illegal arrest and his ‘‘confession”
were made prior to trial (C.T. 36). Since the defendant was
born in Hong Kong and spoke only passable English, various
interpreters were used throughout the pre-tnal and tnal pro-
ceedings.
On April 14, 1981, a jury trial commenced before the
Honorable Robert Roberson, Jr., Superior Court Judge, which
culminated in a finding of guilty on May 6, 1981, of second degree
murder, with the armed and use allegations found to have been
proved (C.T. 107-08). The matter was then referred to the
Probation Department and a report was prepared for the
trial court. On July 15, 1981, the defendant was sentenced
to the State Prison for the term prescribed by law for second
degree murder, namely, fifteen years to life, plus an add tec cal
ae
two years for violations of Penal Code §§ 12022.5 and
1203.06 (C.T. 110). Although the defendant had been
at liberty during trial, his bail was revoked upon convic-
tion and bail on appeal was denied, so that the defendant
remains in custody (C.T. 110). A Notice of Appeal was
timely filed on September 2, 1981, and on February 28,
1983, the Second Appellate Court of Appeal, Division
Three, found errors had been committed but, nevertheless,
affirmed the decision (Appendix “‘A”’). A Petition for Re-
hearing was timely filed with said court on March 15, 1983,
and was denied on March 30, 1983 (Appendix “B’’). The
case was then presented to the California Supreme Court in
the form of a Petition for Hearing. (Rule 28(b).) On May
19, 1983, the Petition for Hearing was denied (Appendix
“C’’). This Petition for Writ of Certiorari is invoked pursuant
to 28 U.S.C. § 1257(3).
STATEMENT OF FACTS
Initially, petitioner concedes that the Court of Appeal’s
rendition of the “facts” (Appendix “‘A’’) fairly depicts the
case for the prosecution and, consequently, the comprehensive
presentation which we included in the Appellant's Opening
Brief on Appeal (pp. 3 - 28) is unnecessary here and would,
pagewise, effectively prohibit us from advancing our conten-
tions, which do not contest the sufficiency of the evidence to
support the verdict. The evidence, as noted by the Court of
Appeal, was indeed quite conflicting. As that court stated,
“This case presents a classic example of the ‘Rashomon Gate!’
phenomena; several people viewed the same events yet
perceived different things. We view the evidence in the
light most favorable to the judgment. (People ». Green
(1980) 27 Cal. 3d 1, 13.) (Appendix “A’, p. 2,n 1)
Therein lies the fatal flaw in the court's analysis, pointed
out in our Opening Bnef on Appeal, again dunng the oral
argument before the Court of Appeal, again in our Petutuon
for Rehearing, and yet again before the Calitorma Supreme
Court. For, unlike the usual murder-manslaughter cases
where counsel routinely argue the insufficiency of the
evidence, thereby obligating the reviewing court to recount
the evidence most favorable to support the verdict, hat point
was not presented in the appellate courts in this case. The
thrust of cur argument (see Argument I, infra) is that the
court only permitted the Jury to consider homicide instruc-
tions supported by the prosecution’s view of the evidence
and, thereby, effectively removed from the selected trier of
fact the option of believing evidence favorable to the defendant
which would have supported a verdict of manslaughter. In
view of our position, we will recount in the context of Argu-
ment I that evidence which specifically addresses that
deficiency.
REASONS FOR GRANTING THE WRIT
The Court is here presented with an important question
of low visibility but prolific reoccurrence in our jumsprudence
whereby defendants in murder prosecutions are denied a
aie
manslaughter defense because the trial court declines to
let the jury consider it. It results in far more obnoxious
results than that condemned by this Court in Mullaney v.
Wilbur, 421 U.S. 684 (1975). For there at least the de-
fendant had the opportunity to persuade the jury that he
was guilty of manslaughter and not murder, while here the
defendant was denied the opportunity to even argue the
point although the evidence amply supported such a find-
ing. The record in this case is perfect for handling such
an important issue, because the California appellate court
squarely ruled that the question of whether the defendant was
entitled to have his defense of manslaughter decided by the
jury must be judged by viewing the evidence from a vantage
point most favorable to the prosecution (Appendix “A”’,pp.
4-7), a doctrine clearly at war with this Court’s pronounce-
ments guaranteeing the defendant a right to present witnesses
in his behalf (Washington v. Texas, 388 U.S. 14, 19 (1967);
Webb v, Texas, 409 U.S. 95 (1972); Pointer v. Texas, 380 U.S.
400 (1965), as well as the doctrine announced in Mullaney
v. Wilbur, supra. See also Douglas v. Alabama, 380 U.S. 415
(1965).
Additionally, in this case, the prosecutor deliberately
injected the improper allegation of “gang membership” into
the case, a fact which the California court held to be error
but not prejudicial; furthermore, the jury received informa-
tion highly prejudicial to the defendant—again conceded by
the California appellate court—and yet opined that it was not
prejudicial. A review of our petition shows that the prosecutor
ran roughshod over the accused's mght to a Fair Trial, but
thus far no court has done anything about it
ARGUMENT
I
The Case Should Be Reversed Because Jury
Instructions Relating To The Defense Of
Involuntary Manslaughter Were Not Given,
Resulting In A Jury Ramrodded Into A Second
Degree Murder Conviction Which Otherwise
Would Have Been Improbable The Failure To
Permit The Jury To Consider The Defense Of
Involuntary Manslaughter And The State Of
California’s Position That Only Evidence
Favorable To The State Should Be Considered
In Deciding Whether To Allow The Jury To
Consider A Verdict Of Involuntary Manslaughter
Clearly Contravened Petitioner’s Right To A
Fair Trial Under The Fourteenth Amendment
To The United States Constitution
This Court held in Jn re Winship, 397 U'S. 358,
25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970), that the prose-
cution must prove beyond a reasonable doubt every fact
necessary to constitute the crime charged, and in Mullaney
v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508,95 S.Ct 1881
(1975), this Court made it abundantly clear that that prop-
Osition applied to the lesser homicide of voluntary man-
slaughter. In fact, when confronted with the Maine state
court’s thesis that the state need only prove the criminal
homicide beyond a reasonable doubt—not the degree —this
Court declared:
alice
“This is an intolerable result in a society where
to paraphrase Mr. Justice Harlan, it is far worse
to sentence one guilty of manslaughter as a murderer
than to sentence a murderer for the lesser crime of
manslaughter.”’ (95 S. Ct. at 1892.)
Although Mullaney involved the possibility that the crime
committed was voluntary manslaughter committed during
the heat of passion, this Court recognized that at common
law and under contemporary American law the crime of
involuntary manslaughter has deep roots in our fundamental
jurisprudence (421 U.S. 693, n. 14).
It stands to reason then that if it is a violation of the
Fourteenth Amendment to saddle the defendant with the
burden of proving that a criminal homicide is manslaughter
rather than murder, it is even a more evident violation if the
defendant was prevented from having the jury even consider
the crime of manslaughter.
Although the information in this case alleged that the
defendant was guilty of murder, that charge encompassed
the lesser included charges of voluntary manslaughter and
involuntary manslaughter as long as there was evidence to
support them. I
Lesser included charges, including second degree
ICalifornia Penal Code 6 1159; People v. Sedeno, 10 Cal. 3d
703, 112 C.R. 1 (1974); People v. Dewberry, 51 Cal.2d 548,
555-57 (1959); People v. Doolittle, 23 Cal. App. 3d 21, 99
C.R. 810 (1972); People v. Carmen, 36 Cal. 2d 768, 773, 228
P.2d 281, 284 (1951); People v. Heffington, 32 Cal. App. 3d
1, 107.Cal. Rptr. 859 (1973); People v. Flannel, 25 Cal. 3d
668, 160 C.R.84.
~
murder and the manslaughter charges, Must be given sua sp nte
even if counsel does not request them. (People v. McManis,
26 Cal. App. 3d 608, 102 C.R. 889; People v. Alfreds, 251
Cal. App. 21, 666, 59 C.R. 647.) And the “obligation to
instruct on lesser included offenses exists even when as a
matter of trial tactics a defendant not only fails to request
the instruction but expressly objects to its being given
Just as the People have no legitimate interest in obtaining
a conviction of a greater offense than that established by
the evidence, a defendant has no nght to an acquittal when
that evidence is sufficient to establish a lesser included
offense.”’ (People v. Sedeno, supra.)
However, in this case as early as page four of the tnal
the defendant’s counsel asked the Judge to inform the jury
of its options concerning lesser offenses of second degree
murder and manslaughter and the judge declined (Reporter's
Transcript 4 [hereinafter R.T.]). And on every occasion he
was in quest of the appropriate lesser included offense instruc-
tions (R.T. 773, 736; C.T. 103-04, 05).
The court purported to instruct the jury on the offenses
of first and second degree murder and voluntary manslaughter
and rejected the defendant’s requests for instructions on
involuntary manslaughter (ibid).
The court should have given CALJIC 8.51, which would
have permitted the jury to convict the defendant of man-
slaughter upon a finding that he committed an act (here
firing a gun in the direction of a possible pursuer) dangerous
to human life and done in a criminally negligent fashion
~10—
The trial was by jury so it was not for the court to
determine which view of the evidence to adopt. The firing
of a gun can be done lawfully but done in such a dangerous
fashion as to amount to criminal negligence, that is, “‘a high
degree or risk of death or great bodily harm, without due
caution and circumspection.” (CALJIC 8.45 (1980 Rev.) )
The jury should have been able to choose between CALJIC
8.31 (1974 Rev.) and 8.45. How could the judge determine
as a matter of law that the shooting occurred only under
circumstances demonstrating a wanton disregard for human
life and was done for a base, antisocial purpose as opposed
to a high degree of criminal negligence.
There is insufficient space here to recap all of the
evidence. Suffice it to say that traditionally, in seeking to
uphold a judgment, the state gets the benefit of the most
favorable view of the evidence. But that situation is totally
reversed where, as here, the jury was given no opportunity to
evaluate the nature and gravity and circumstances under
which the defendant fired the weapon. It is incumbent upon
the state to show that there was insufficient credible evidence
which would permit the jury to reach a verdict of involuntary
manslaughter. The testimony of the witnesses friendly to the
deceased showed two very large men, one drunk or nearly so
and the other having been drinking, who demonstrated violent
acts against the defendant’s friend, a man five feet tall, by
choking him and then banging him against the brick wall of a
building.
There was evidence that even though the defendant fired
=
a gun into the air, it failed to prevent a host of pursuer -
some twice his size and intoxicated who had just bashed
his friend’s head up against the wall of a building and
choked him—from chasing after him, such actions being
classified even by the deceased’s friends as ‘‘stupidity.”’
(R.T. 180, 249.) Moreover, the defendant testified ihat
officer Bontempo never identified himself as a police
officer (R.T. 614), and other witnesses were vague on the
subject, with a prosecution witness (the deceased’s brother)
relating that Bontempo yelled at the defendant, ““Come on
asshole, get the fuck out of here,” which is what the defend-
ant tried to do (R.T. 140), namely, to run away from trouble,
and that when he fired the gun he ever intended to hit anyone
and that he felt he was in “imminent danger” . . . because
“I was afraid of once he got hold of me, he would kill me.”
During the entire time he was running, he “was always fearful
of my life.” (R.T. 466-73.)
The facts are a hundred times more than sufficient to
warrant the involuntary manslaughter instructions.
If that were not enough, the jury itself reported to
the court that it was having difficulty distinguishing between
second degree murder and voluntary manslaughter. To be more
precise, the note from the jury defining their quandary read
“As pointed out supra and infra, the appellate court simply
ignored the evidence favorable to the accused and wrongfully
concluded that the trial court only had to instruct the jury
based upon the evidence most favorable to the prosecution.
Petitioner vehemently objects to this approach.
as follows:
“We [the] jury in the above entitled action, request
the following clarification: second degree murder and
voluntary manslaughter. Specifically, there appears to
be a conflict between Section 8.31, paragraph 2, and
Section 3.31, paragraph 2, with regard to the intent to
kill and an act that would result in death.” (R.T. 860-61.)
That tells us not only that the jury could have thought but did
in fact think that the defendant was not intending to kill the
deceased, Ralph Chew, but committed a dangerous act which
resulted in death. The court by declining to give them the
involuntary manslaughter option and stressing the word “‘also”’
in Instruction 8.31, gave them what was tantamount to a
directed verdict (R.T. 861-66).
Petitioner is in disagreement with the opinion of the
Court of Appeal in a very vital respect; namely, the appro-
priate factual rendition with regard to the failure to give the
jury the involuntary manslaughter option as opposed to the
situation where the claim is made that the evidence is insuf-
ficient to support the verdict.
In the present case, criminal negligence amounting to
involuntary manslaughter and not rising to the level of implied
malice was vivid and the evidence so contradictory that what
should have been supplied the jury were all of the instructions,
allowing them to make the appropriate choice as to which
degree of homicide the crime belonged. The facts related
above easily make involuntary manslaughter an acceptable
result unless we are to deny the evidence of the defendant
and that of some of the prosecution witnesses. Counsel fails
to see why the fact that the defendant fired a gun into the air
13-
out of fear that his friend was going to be seriously harmed,
which is supported amply by the evidence, denudes his genuine
subsequent fear that a group of drinking persons, who had
engaged in a violent argument reaching the commission of
violent acts and who were chasing him, could have caused
him to fire in their direction in a criminally negligent fashion 3
This last observation underscores our central disagree-
ment with the appellate court’s opinien, The court, in setting
forth the facts of the case, commences with the thesis: ‘We
view the evidence in the light most favorable to the judgment.”
(Appendix “A”, p. 2.) That supposition is clearly correct and
the facts are fairly stated from that vantage point if the issue
was the sufficiency of the evidence to support the conviction;
but that was not the issue! Unfortunately, for a variety of
reasons On appeal, in these kind of cases, counsel routinely
question the sufficiency of the evidence and the court
responds as in this case, which is entirely appropriate for
those situations. The reasons counsel proffer the insuffi-
ciency of the evidence argument are usually: (1) He thinks
it is his job, or because his client expects it; (2) He cannot
find any other argument to present and feels compelled to
say something; or (3) A counsel with foresight may wish
to preserve the factual record for some later day habeas corpus
31n People v. Alvarado, 133 Cal. App. 3d 1003, cited by the
appellate court (Appendix “‘A’’, p. 7), the court simply rebuffed
defendant’s attempt at voluntary manslaughter instructions in a
case where he became enraged and brutally attacked and killed
an elderly lady who merely woke up and screamed during his
burglary of her apartment.
14-
attack when the best and perhaps only available rendi-
tion of the facts is that recited in the Court of Appeal
opinion.
Almost invariably in the murder-manslaughter cases
it is contended that the evidence is insufficient, and the
court is therefore duty-bound to recite the evidence from
the view most favorable to the prosecution. However, where
the issue is whether there is the necessary quantum of evi-
dence to permit the jury, selected to try the issues of fact,
to choose from amongst closely related crimes which may
depend on state of mind, conflicting evidence regarding the
situation, make judgment calls on whether certain beliets
were reasonab le or unreasonable, honest or dishonest,
objective or subjective, or whether certain conduct fits
Within the rubric of criminal negligence as opposed to implied
malice, the burden on the defense is simply to show that there
is evidence to permit the jury to decide.
The court in this case, in reciting the case from the
prosecution's vantage point, failed to permit the jury to
consider the evidence favorable to the defendant’s case. In
the court’s rendition of the facts it refers to the decedent
as a person who drank some alcohol, but was not actually
drunk (Appendix ‘‘A’’, p. 2). Actually, from prosecution
witnesses, we Know that according to officer Bontempo he
was planning to drive him home because he was too intoxi-
cated to operate his vehicle safely (R.T. 317-18); and the
autopsy showed that his blood alcohol was .14, well above
the limit for negotiating an automobile (R.T. 414). Also
15
the defendant did not know Bontempo was a police offic *r
(R.T. 614, 1401. Cf Appendix ‘A’, p 9: “Bontempo
had identified himself as a police officer” .) The other factors
such as the altercation, the violence against the defendant's
tiny friend by much, much bigger men and the defendant’s
contention that he was trying to escape and fired behind him
only when he felt in imminent danger of serious personal harm
and did not intend to hit anyone, easily support the giving of
involuntary manslaughter instructions.
Although it is not necessary to the decision, because
inconsistent defenses can be presented at trial, in a case like
the present one the defenses of self-defense and the various
kinds of manslaughter are not even inconsistent defenses.
It is merely a case of the defendant adducing evidence, some
his own and the rest from other sources or other witnesses,
explaining the circumstances under which the killing occurred.
In other words, it is the jury’s function to put the right
label on the totality of the circumstances, not the prosecution's
and not the defense’s. The question as to whether under all of
the circumstances the action of firing in the direction of persons
whom the defendant had every reason to believe would do him
serious bodily harm if he was caught (who else would chase
a man with a loaded gun, deemed an act of “stupidity” by
prosecution witnesses and friends of the deceased) was man-
slaughter by criminal negligence was for the jury; and, similarly,
whether the defendant’s belief that he was about to suffer
serious bodly harm was reasonable or unreasonable under all
of the circumstances was a question for the jury, not a judg-
—~]6=-
ment he could even make or a defense to which he could
even limit himself (see, e.g., People v. Sedeno, supra).
This case was susceptible of the conclusion that the
defendant brandished his weapon in a dangerous and crim-
inally negligent fashion (see California Penal Code § 417)
without harboring a wanton disregard for human life or
displaying an abandoned and malignant heart.
This Court has repeatedly held that an accused has
the right to confront and cross-examine his accusers (Pointer
v, Texas, 380 U.S. 400 (1965); Douglas v. Alabama, 380 U.S.
415 (1965) ) and to present evidence in his behalf (Washington
v. Texas, 388 U.S. 14, 19 (1967); Webb v. Texas, 409 U.S. 95
(1972) ), but these constitutional guarantees remain patently
empty if the jury cannot consider the testimony. The State
of California in holding that the jury could only consider
the defense of involuntary manslaughter if the prosecution's
evidence provided substantial support effectively foreclosed
the petitioner’s right to a Fair Trial and was a much more
flagrant denial of due process than the situation in Mullaney y.
Wilbur, supra, because, in Mullaney, the defendant at least had
the chance to convince the jury that the evidence warranted a
manslaughter verdict while, here, he had none at all since the
court held that the jury was only entitled to return a verdict of
involuntary manslaughter if the evidence stated from the
vantage point most favorable to the prosecution supported
such a result. This case should be remanded for a new trial or
a disposition consonant with the true gravity of the offense.
my,
li
The Entire Record Demonstrates That The Prose-
cuting Attorney Failed In His Duties As The
Representative Of The Sovereignty, Whose Words
Are Believed By The Average Jury, And Was Guilty
Of Purposeful And Flagrantly Prejudicial Miscon-
duct, Thereby Depriving Petitioner Of His Right
To A Fair Trial Guaranteed To Him Under The
Sixth And Fourteenth Amendments To The United
States Constitution. Moreover, All Hope of A
Fair Trial Vanished When Damaging Inadmissible
Evidence Visited The Jury Room In The Form Of
Information Concerning ““Gamg Membership”’—
Which The California Courts Have Held Especially
Highly Prejudicial In The Los Angeies Area.
A. Statement of evidence of prejudicial misconduct
of the prosecutor and the improper receipt of
evidence impairing defendant's right to a fair trial.
On April 13, 1981, the jury selection process com-
menced. It was completed with the jurors and alternates
being sworn and the case beginning on April 15, 1981.
Eight days later, on April 23, 1981, problems arose concern-
ing some of the regular and alternate jurors. Of importance
here was a note received from one of the regular jurors, a Mr.
Tomlinson. He asked to be excused for two reasons. The
first had to do with personal problems. The second was:
“Number 2, I read in the paper about a year ago
about dumb Chinese youths, mostly illegal aliens,
in gangs who harass the merchants of Chinatown
making them pay for protection. The merchants
are afraid to respond—or to report these due to
retaliation.”’ (R.T, 89-90.)
The court ordered Mr. Tomlinson produced in court and
questioned concerning the belated correspondence. The
=' =
court stated that it was “quite concerned” about the
failure of the juror to bring the matter of the newspaper
article to the attention of the court and counsel during the
voir dire proceedings, and the juror responded, “‘Well, it
didn’t come to me ‘til later.’’ He stated that occurred after
the jury had been selected and during the week during
which they were not in session. He further stated that he
had not discussed that information with the other jurors.
He was then dismissed from jury service by stipulation of
the parties and replaced by an alternate juror (R.T. 100-03),
Later on the same day as Juror Tomlinson’s revelation,
the witness Derek Chew, brother of the deceased, in testimony
before the jury concerning seeing the defendant and his two
Oriental friends exit the Lee Terrace Bar, referred to the
group as ‘The Gang’ (R.T. 134).
After the prosecution had closed its case-in-chief and
the defendant had completed his direct examination, the
prosecutor, within seconds of beginning his cross-examination,
stirred up a hornet’s nest:
“Q. Mr. Tong, are you a member of Wah Ching Gang?
“MR. WEIT (defense counsel): Your Honor, I will
object. This is irrelevant.
“THE COURT: Approach the bench, counsel...”
(R.T. 474.)
Clearly, the prosecutor was aware of the fact that neither in
his opening statement nor in his evidence had he suggested
that the defendant was either a member of the Wah Ching
Gang or that such a fact, if proved, was relevant. Also he was
= =
familiar with the law on the subject which forbade him te
ask such a question unless the evidence showed that was the
motive for the criminal activities or for a witness fabricating
evidence to corroborate his friends or associates, for he
would cite it one page later (R._T. 475), (See People v. Szeto,
29 Cal. 3d 20, 171 C.R. 652 (1981), and Jn re Wing Y, 67 Cal
App. 3d 69, 136 C.R. 390 (1977). )
This point could not be fully brought to the attention of
the Court without a statement of the record with reference to
further misconduct of the prosecution and the improper
receipt of evidence. Since this is quite voluminous, we will,
for the convenience of the Court, set same forth as Appendix
“D” hereto. This appendix will show the insinuations made
by the prosecuting attorney as to the defendant’s membership
in Wah Ching (these insinuations were made despite the tnal
court’s admonition against such references); the prosecutor's
injection of racism into the case by stating that the defendant
did not like the deceased because the deceased was married
to a Caucasian (when the defendant, in fact, had no knowledge
that the deceased was even married); and what happend in
regard to the defendant’s friend Mr. Kwan (in the presence of an
alternate juror who later became a regular juror). We invite the
Court’s attention to this recital (Appendix “D”’, pp. 13 - 26).
B. The legal decisions governing the situation call for a rever-
sal due to prejudicial misconduct by the prosecutor and
the improper receipt of evidence resulting in a jury verdict
based upon materials this Court has held could not serve
as the basis of a conviction. The California appellate court
, S
acknowledged both of these errors but then applied the
wrong analysis of the effect of the errors to affirm the
judgment.
The prosecuting attorney in this case failed to heed the
command of this Court clearly set forth in Berger v. United
States, 225 U.S. 78, 88 (1935), that the prime duty of the
United States Attorney in criminal prosecutions is not to con-
vict but to see that “justice is done.”’ The right of a criminal
defendant to a fair prosecutor, insured by this Court in Berger,
is a part of the very fabric of American justice. The inspiring
words written by Mr. Justice Sutherland must be so often
quoted to the courts of the land that to do so in this Court
would seem unnecessary and a reference to Berger should suffice.
The special role of the prosecutor is stressed in unequivocal
language in the Code of Professional Responsibility of the Am-
erican Bar Association in Ethical Consideration 7-13 under Canon
7. It says, “The responsibility of a public prosecutor differs
from that of the usual advocate; his duty is to seek justice, not
merely to convict.”
In reversing a conviction because a prosecuting attorney
failed to meet these high standards, the court in Hall v. United
States (Sth Cir. 1969), 419 F.2d $82, 583-84, said that he had «
“great potential for jury persuasion,” that “his role as a spokes-
man for the government tends to give to what he says the ring
of authenticity. The power and force of the government tend
to impart an implicit stamp of believability to what the prose-
cutor says”’ an@ that in his voice and person “‘is the unseen
presence in the courtroom of our great and powerful government.”
2] a
As pointed out in Handford v. United States, 249 F °d 295,
296 (1947), “he [the prosecuting attorney] 1s the representative
of a government dedicated to fairness and equal justice to all.”
Such representation imposes an overriding fairness so important
that “Anglo-American criminal law rests on the foundation,
better the guilty escape than the innocent suffer.’ (Emphasis ours.)
In the instant case, rather than meeting the high responsibil-
ity imposed upon him, the prosecutor created ‘‘an atmosphere of
prejudice imperiling dispassionate judgment” (United States v.
Bukowski (7th Cir. 1970), 435 F.2d 1094). His misconduct was
“of a flagrant nature resulting in a pattern of prejudicial impropri-
ety” (United States v, Achilli (7th Cir. 1968), 234 F.2d 409, 414)
Such was the case here.
C. In recapitulation:
(1) Juror Tomlinson being replaced because of information
he had read reciting that gangs of dumb Chinese youths
were preying upon the merchants of Chinatown and the
merchants would not report these occurrences because
they were fearful of retaliation (pp. 17, 18, supra).
There is sage law which holds that a trier of fact Must base his
conclusions as to a defendant’s guilt only on evidence adduced
in Open court and not on any outside influence®.
4Patterson v. United States, 205 U.S. 454 (1907); Shepard v,
Maxwell, 384 U.S. 333, 350-51, 362-63, 86 S.Ct. 1507 (1966):
Irwin v, Dowd, 366 U.S. 717, 722, 728, 81 S.Ct. 1639 (1961);
Rideau v, State of Louisiana, 373 U.S. 723, 727, 83 S.Ct. 1417
(1963); Parker v. Gladden, 385 U.S. 363, 365, 87 S.Ct. 468 (1967),
Turner v. Louisiana, 379 U.S. 466, 85 S. Ct. 546 (1965); Mares
v. United States, 383 F.2d 805, 809 (10th Cir. 1967), cert.
denied, 394 U.S. 963 (1970),
It is true that the juror, when questioned, denied that he
had imparted the information to fellow jurors, but irankly, it
is apparent that the reason he placed number one to be relieved
was harassment from his wife at home, and his claim that he just
happened to remember a newspaper article he had read a year
before during the period when his wife made a strong pitch to
him to leave the jury seems highly improbable. Also, in the
absence of questioning the other jurors, it is not even probable
that he neglected to share with fellow jurors those biases he
probably secreted during voir dire.
(2) The terminology employed by the brother of the deceas-
ed, who was also a seasoned fireman for the L. A. Fire
Department, that the defendant and his Chinese friends
constituted a “gang” should, at the very least, cause a
person concerned about essential justice to wince (p. 18,
supra). (R.T. 134.)
(3) The saga of the body attachment of the defendant’s friend,
Edward Kwan (Appendix “SD”, pp. 23 - 26).
Initially, it must. be pointed out that Juror Stich, who was
an alternate at the time she heard the Kwan contempt hearing,
was a juror in the deliberative sense from start to finish. And,
since she was in a position to share her knowledge obtained
while her future jury partners were sequestered, we cannot
assume that she did not do so, and her vote was necessary for
a guilty verdict in any event. (People v Brown, 61 Cal. _
3d 476, 132 C.R. 217 (1976). )
From just what she observed in the courtroom, it is
abundantly clear that Juror Stich knew that the prosecution
had sought to obtain Edward Kwan as a witness and that he
did not want to testify. Also, she knew that he was a friend
=. |
of the defendant, seen eating with him at the Tai Hong Res-
taurant by the police officer whom he told he would show up
in court, and that the defendant therefore did not want his
testimony. Moreover, without any evidence on the subject,
proof was offered that he could communicate in English
because the officer confronting him only spoke English.
The Court of Appeal assumed these events occurred and
yet, nevertheless, concluded that, “*[W]e see nothing in the
testimony at the hearing which would affect Juror Stich’s
evaluation of the case. We therefore find no prejudice to
Tong.”’ (Appendix “A’’, p. 10.)
(4) The prosecutor’s comments during his summation where-
in he claimed private knowledge concerning ‘‘Mr Tong
and his three friends’’ (the connotation of a gang up to
no good becomes the probable assessment despite the law
rendering such a consideration illegal) (Appendix ‘‘D’’, p.
21).
And, of course, the insinuation during that self-same argu-
ment that the defendant obviously did not want to produce
those persons who could corroborate his story, especially one
who had been brutalized, left an ineradicable image c* . gang
of persons hellbent on mischief.
(5) The prosecutor’s injection of racism without any basis
whatsoever (Appendix “*D”, p. 22).
All of the above considerations furnish more than is
necessary to display just how pernicious and unjust the inser-
tion of the ““Wah Ching Gang”’ motif was in the case. And if
you add to these facts the suggestions—vigorously objected to
by defense counsel, as he was dutybound to do given the predi-
cament the prosecutor had placed him in—that these persons
eS
were all members of the same “gan. *’ unfairness unquestion-
ably crept into the jury room.
The prosecutor full well knew, as his investigator candid-
ly stated, that he had no proof of any of these matters. But
we already know how cavalierly he represented to the court
facts which he knew to be false or had no evidence to support,
such as that an L. A. Police Officer had lawfully handed to the
witness Kwan a subpoena, and the witness failed to appear,
when, in fact, the subpoena was for a date prior to its service
on the witness’s father. At any rate, the law is clear that the
prosecutor may not ask questions of witnesses, especially
defendants, suggesting the existence of facts which the prose-
cutor knows to either be untrue or not provable or inadmissible,
and by so doing he is guilty of rank misconduct (Michelson vy.
United States, 335 U.S. 469, 69 S. Ct. 213, 221 (1948)—and
numerous California cases to the same effect).
It is especially disturbing when we realize that after a
comprehensive hearing the trial judge specifically instructed
the prosecutor not to ask “Wah Ching” questions without
first approaching the bench, because of the potential for rever-
sible error and the limited grounds for making such inquiries,
the court explicitly telling the prosecutor that he could not
ask the defendant about his associates’ gang membership
unless they testified, so that their motivation to fabricate
became an issue. Defense counsel timely moved for a mistrial,
and it should have been granted. It is certain that the prosecutor
failed to live up to the high standards imposed upon him.
Interwoven in this case is a fabric which not only demon-
hy s..
strates prosecutorial misconduct and the illegal receipt of
inadmissible evidence by a trial juror, but focuses upon the
difficulty the jury obviously had with the case trying to
ascertain whether it was a crime of second degree murder or
manslaughter (R.T. 860-66). Had the above errors not
occurred, it is highly probable the verdict would have been
manslaughter.
Regarding the prosecutor’s questioning of the detendant
about his membership in the Wah Ching Gang, the Court of
Appeal held that “‘[e] ven if the question had constituted
misconduct, Tong was not harmed by it. An objection was
made before the defendant answered, and the jury was 1mmed-
iately admonished that questions are not to be considered
evidence” (Appendix “‘A’’, p. 8). As opposed to the first
inquiry about ‘‘Wah Ching” wherein the jury was instructed
to disregard the question, there was no such admonition given
to subsequent references. We vigorously contend that it is a
“feat beyond the compass of ordinary minds”’ to expect the
jury both to remain unaffected by an accusation of gang mem-
bership and to simultaneously recall general admonitions to the
effect that questions are not evidence. In fact the failure to
instruct that a question was not evidence, in contrast to earlier
admonitions, might well have led the jury to conclude that the
question had some substance behind it.
The ultimate thrust of the Court of Appeal’s opinion 1s
that no prejudice was shown the defendant, despite the prose-
cutor having ridden roughshod over his rights, because a
homicide had been committed according to the evidence
26-—
viewed from the prosecution’s vantage point.> We respec*tfully
disagree for three reasons. The California Supreme Court has
held “that jury deliberations of almost six hours are an indica-
tion that the issue of guilt is not open and shut and strongly
suggests that errors in the admission of evidence are prejudicial.”
(See People v, Cardenas, 31 Cal. 3d 897, 907 (1982).)
Secondly, the real issue in this case was whether the accused
was guilty of murder or manslaughter, and the jury’s request
for additional instructions clarifying the difference between
them was of great importance (pp. 11, 12, supra). The final
reason why we think the errors complained of were of signi-
ficance is illustrated in People » Cardenas, supra, the most
recent California Supreme Court case on gang membership,
wherein a plurality found that evidence of gang affiliation
poisoned the case against the defendant. The court noted
therein: “In Southern California, Chicano Youth gangs
have received widespread media publicity for their purport-
ed criminal activities” (at p. 905). The same can be said of
Chinese street gangs, and the admissions of Juror Tomlinson,
albeit tardy, attest hardily to this fact (R.T. 89-90). Tomlin-
son’s impressions of the activities of the gangs were the same
The Court of Appeal’s analysis on this point (Appendix ‘‘A’”’
p. 9) is decisively shallow. The court simply reviews the
evidence from the prosecution’s vantage point and concludes
that the evidence readily supports a conviction. What is
omitted is what type of homicide could the jury have deter-
mined to have been committed given the fact that it was
entitled to believe pro-defense evidence, too, if they had
been appropriate involuntary manslaughter instruc-
tions?
impressions the prosecutor sought, admittedly without e' ’
dentiary foundation, to introduce into evidence at the trial.
In summary, in a case where the evidence was so con-
flicting that it has proved impossible to write a single consist-
ent version of the events, and where the decision on murder
or manslaughter could well have turned on the jury’s evaluation
of whether the accused was a small fnghtened individual being
pursued by a horde of persons—some very, very large and
intoxicated who had already committed violent acts against
his diminutive friend and were out to do him harm-—or a
person whose basic character traits were antipathetic to the
police and who was poised to actualize his malice, the damage
done warrants a new trial.
Our quest is not to absolve the defendant of blame, but
to allow the trier of fact to determine the magnitude of his
crime
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
LUKE McKISSACK
Attorney for Petitioner
“a
ie
cs Sis
—
INDEX TO APPENDIXES
Opinion of the Court of Appeal of
the State of California, Second Appel-
late District, Division Three, filed
Pe Oe EO be sda cdeseeenss
Denial of Petition for Rehearing by
the Court of Appeal of the State of
California, Second Appellate District,
Division Three, on March 30, 1983
CE GRRE ND 6 kk ok bee cna nda
Denial of Petition for Hearing by the
Supreme Court of the State of Calif-
ornia, on May 19, 1983 (post card
ES te ogous ae eG ieh ea ale ota ON a ea
Statement of the record relative to
the misconduct of the prosecution
and improper receipt of evidence ......
Page
1]
12
13
APPENDIX “A”
OPINION OF THE COURT BELOW
In the Court of Appeal of the State of California,
Second Appellate District, Division Three.
2d Crim. No. 41002 (Super. Ct. No. A361484),
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent, v. WOO CHIN TONG, Defendant
and Appellant.
FILED FEBRUARY 28, 1983
Not To Be Published
APPEAL from a judgment of the Superior Court of
Los Angeles County. Robert L. Roberson, Jr., Judge.
Affirmed.
Luke McKissack for Defendant and Appellant.
George Deukmijian and John K. Van de Kamp,
Attorneys General, Robert H. Philibosian and Daniel J.
Kremer, Chief Assistant Attorneys General, 8. Clark Moore,
Assistant Attorney General, Shunji Asari and Cynthia S.
Waldman, Depty Attorneys General, for Plaintiff and Re-
spondent.
Defendant and appellant Woo Chin Tong (Tong)
Appendix “A” 2.
appeals from a judgment of conviction of second degree
murder following a jury verdict. For the reasons set forth
below, we affirm.
FACTS AND PROCEDURAL HISTORY!
On June 28, 1980, the victim, Ralph Chew (Ralph)
was master of ceremonies at a wedding reception and
banquet at General Lee’s Restaurant honoring his brother
Derek. During the course of the celebration, Ralph drank
some alcohol but was not actually drunk. When General
Lee’s Restaurant closed, about 10 people decided to continue
the celebration at the nearby Lee Terrace Bar. Among them
were Ralph, Derek and their close friend, Los Angeles Police
Officer Don Bontempo (Bontempo). Most of the group
sat at a cluster of tables near the center of the bar; Ralph
and Bontempo sat in a small booth just behind them. The
group was a little boisterous and loud.
Ralph went up to the bar and asked for water or 7-Up;
however, the bartender refused to serve him. He returned
to the booth and was chatting with Bontempo. Tong came
in a little later, spoke with employees of the bar, and then
IThis case presents a classic example of the ““Rashomon
Gate” phenomena; several people viewed the same events
yet perceived different things. We view the evidence in the
light most favorable to the judgment. (People v. Green
(1980) 27 Cal. 3d 1, 13.)
Appendix “A”’
approached Ralph and Bontempo and told them to quiet
down or they would be thrown out.
A short while later Tong and several friends walked
out of the bar. Ralph and Bontempo also left and were
confronted by Tong and three other males. Outside,
Ralph and Tong got into a heated argument. Bontempo
identified himself as a police officer. A scuffle broke
out between Bontempo and one of Tong’s friends.
One individual grabbed Bontempo’s right arm and
Bontempo took him by the throat and banged his head
against the wall. Tong shouted for Bontempo to leave the
person alone. Bontempo released the person and turned
to Tong, whereupon Tong pulled a small chrome revolver
from the small of his back, pointed it at Bontempo, and
then fired it at approximately a 45 degree angle in the air.
Tong and two of his friends fled and Ralph, followed
by Derek, began immediate pursuit. Bontempo also gave
chase. While being chased by Ralph who was 20 feet
behind him, Tong turned, and with his right arm extended,
fired the gun. The bullet struck Ralph in the chest and he
died of a resultant hemorrhage.
At trial, Tong testified that he ran because he was
afraid that ‘‘once he got hold of me, he would kill me.”’
He claimed to have no intention of shooting anyone,
rather his amorphous motive was to stop his pursuers.
A motion for a new trial was made and denied. Tong
was duly sentenced, and this timely appeal followed.
Appendix “A” 4.
ISSUES
Tong raised two main issues On appeal: whether it was
error to refuse to instruct the jury on involuntary manslaugh-
ter; and whether there was prosecutorial misconduct warrant-
ing retrial.
DISCUSSION
1. Refusal to instruct on involuntary manslaughter.
The jury was instructed on first and second degree
murder, voluntary manslaughter and self-defense. Tong’s
request for involuntary manslaughter instructions was denied.
Tong contends that the trial court erred in refusing to
give CALJIC Nos. 8.372, 8.453 and 8.514 which define
2CALJIC No. 8.37 (4th Ed. 1979) reads as follows: “The
crime of manslaughter is the unlawful killing of a human being
without malice aforethought. It is not divided into degrees
but is of two kinds, namely, voluntary manslaughter and
involuntary manslaughter.
3CALJIC No. 8.45 (4th Ed. 1980) reads as follows: ‘“*{De-
fendant is charged in [Count ..... of] the information, with
the commission of the crime of involuntary manslaughter,
a violation of Section 192 of the Penal Code.] [Para.] In-
voluntary manslaughter is the unlawful killing of a human
being without malice aforethought and without an intent
to kill. [Para.] In order to prove the commission of the
crime of involuntary manslaughter, each of the following
elements must be proved: [Para.] 1. That a human being
was killed, and [para.] 2. That the killing was unlawful.
(Balance of n. 3 and n. 4 - see next page.)
Appendix “A”’ 5.
involuntary manslaughter. He claims that the jury should have
been able to decide whether the firing of the gun constituted
implied malice or simply constituted criminal negligence.
Involuntary manslaughter is the killing of another human
being in the commission of a misdemeanor, or in the commis-
sion of a lawful act performed without due caution and circum-
spection.> (Pen. Code, § 192.) In contrast to murder which
requires malice, i.e., “‘an act involving a high degree of prob-
ability that it will result in death, which act isdone . . .
with a wanton disregard for human life.”” (CALJIC 8.11
(4th Ed. 1979 Rev.), manslaughter requires only an act of
criminal negligence.
Although guns are inherently dangerous instruments,
3(continued) {Para.] A killing is unlawful within the
meaning of this instruction if it occurred: [Para.]
2. During the commission of a misdemeanor which is
inherently dangerous to human life, namely, the offense([s|
; of [para.}] 2. In the commission of an act ordi-
narily lawful which involves a high degree of risk of death
or great bodily harm, without due caution and circumsy ection.
{Para.] [There is no malice aforethought if the killing occur-
red in the honest but unreasonable belief in the necessity
to defend against imminent peril to life or great bodily
injury.]”
4CALJIC No. 8.51 (4th Ed. 1979) reads in pertinent part:
“(There are many acts which are lawful but nevertheless
endanger human life. If a person causes another’s death
by doing such a dangerous act in an unlawful or criminally
negligent manner, without realizing the risk involved, he is
guilty of manslaughter. If, on the contrary he had realized
(Balance of n. 4.and n. 5 - see next page.)
Appendix “A” 6.
some killings by gunshot have been deemed only criminal.,
negligent. (See People v. Clark (1982) 130 Cal. App. 3d
371, 382.) An involuntary manslaughter verdict is even
possible where the defendant deliberately pulls the trigger
(People v. McGee (1947) 31 Cal. 2d 229, 238; People v.
Carmen (1957) 36 Cal. 2d 768, 776.) Therefore, where the
victim died of a gunshot wound, a trial court may be obli-
gated to instruct on involuntary manslaughter.
A trial court is not required, however, to instruct in
every case on all lesser included offenses of the charged
crime. Rather the duty to instruct arises only where there
is evidence that the offenses committed were less than
charged. (People v. Ramos (1982) 30 Cal. 3d 553; 582;
People v. Sedeno (1974) 10 Cal. 3d 702, 715.) Although
older cases held that ‘‘any evidence deserving of any con-
sideration” was sufficient to create a duty to instruct, (see
e.g., People v. Carmen, supra, at p. 773; People v. Sedano,
4( continued) the risk and acted in total disregard of the
danger to life involved, malice would be implied and he
could be guilty of murder.]”’
Penal Code section 192 reads in relevant part: ‘‘Man-
slaughter is the unlawful killing of a human being, without
malice. It is of three kinds: [Para.] . . . [Para.] 2. Invol-
untary—in the commission of an unlawful act, not amount-
ing to felony; or in the commission of a lawful act which
might produce death, in an unlawful manner, or without due
caution and circumspection; provided that this subdivision
shall not apply to acts committed in the driving of a vehicle.
Appendix ‘“‘A”’ 7s
supra, at p. 716) more recent cases require that the evidence
be substantial before the duty arises. (People v. Flannel
(1979) 25 Cal. 3d 668, 685; People v. Alvarado (1982)
133 Cal. App. 3d 1003, 1021.)
The only evidence which might support a finding of
criminal negligence was testimony by Tong that he fired
the shot out of fear, for the purpose of somehow stopping
his pursuers. This evidence is not substantial enough to
support a duty to instruct on involuntary manslaughter.
(Cf. People v. Jackson (1980) 28 Cal. 3d 264, 306.) While
attempting to elude Ralph, the police officer and others,
Tong admittedly turned and pointed the gun in the direc-
tion of the victim who was only 20 feet behind him and
fired. The bullet found its mark, causing Ralph’s death.
The trial court therefore did not err in refusing the
requested instructions.®
2. Prosecutorial Misconduct.
Tong asserts several different instances of prosecutorial
Tong also claims that the trial court erred in giving the
1975 version of CALJIC No. 8.50 instead of the 1980
version which includes imperfect self-defense in the definition
of manslaughter and expressly allocates the burden of proof.
The trial court did give CALJIC No. 8.40 (4th Ed. 1979 re-rev.)
which instructs that voluntary manslaughter may be found
where the defendant has an honest but unreasonable belief
in the need for self-defense. CALJIC No. 8.72 which effec-
tively places the burden of proof on the prosecutor also was
given. Reading the jury charge as a whole, as we must, we
(Balance of n. 6 - see next page.)
Appendix “A” 8
misconduct, the net result of which he contends was depr'-
vation of a fair trial.
The first allegedly improper act was the prosecutor’s
questioning the defendant about his membership in the
Wah Ching Gang. An objection to the question was sus-
tained on the grounds that the evidence sought was more
prejudicial than probative. While ‘‘[t] he deliberate asking
of questions calling for inadmissible and prejudicial answers
is misconduct,”’ it was not clear that counsel’s question was
improper. (People v. Fusaro (1971) 18 Cal. App. 3d 877,
886.)
The exclusion of evidence under Evidence Code section
352 is discretionary. The trial court held an extensive hear-
ing before ruling conclusively. Given that the inadmissibility
of the evidence was unclear, we find no misconduct in the
prosecutor asking the question.
Even if the question had constituted misconduct, Tong
was not harmed by it. An objection was made before the
defendant answered, and the jury was immediately admon-
ished that questions are not to be considered evidence.
Tong also protests that the prosecutor later asked Tong
whether his friend Edward Kwan was a member of Wah Ching.
The prosecutor had been told during the Evidence Code sec-
®(continued) we find no error in giving the 1975 version
of CALJIC No. 8.50. (See People v. Patterson (1979)
88 Cal. App. 3d 742, 753; People v. Rhodes (1971) 21
Cal. App. 3d 10, 20.)
Appendix “‘A’”’ 9,
tion 402 hearing that he could not question Tong about the
gang affiliations of his friends. The question therefore did
constitute misconduct,
Prosecutorial misconduct mandates reversal only where it
appears that it is reasonably probable that a verdict more favor-
able to the defendant would have been given in the absence of
the misconduct. (People v. Strickland (1974) 11 Cal, 3d 946,
955.) Here the improper question was quickly objected to
and the jury was instructed throughout the trial that questions
are not evidence. Additionally the legitimate evidence against
Tong was very strong. Tong was involved in an altercation
with Ralph and Bontempo who had identified himself as a
police officer. Tong pulled a gun and fired it and then ran.
As he was being pursued, he admitted firing the bullet which
struck and killed Ralph. Under these circumstances we find
the misconduct to be nonprejudicial.
Tong also contends that the prosecutor made various
improper comments during closing arguments. However,
since no objecton was raised at that time, and since this
was not a particularly close case, we shall not review such
conduct on appeal. (See People v. Perez (1962) 58 Cal. 2d
229, 249; People v. Ayers (1975) 51 Cal. App. 3d 370, 380.)
The final ground for appeal is that one of the jurors
was privy to information not introduced into evidence.
Tong contends that Juror Stich, while still an alternate,
witnessed a contempt hearing involving a friend of Tong's
whom the prosecution had subpoenaed. The record is unclear as
to whether Juror Stich was actually present. Assuming arguendo
Appendix “A” 10
that she was, we still find no reason to reverse. Juror mis-
conduct requires reversal only where the defendant is
prejudiced. (See People »v. Brown (1976) 61 Cal. App. 3d
476, 481.) We see nothing in the testimony at the hearing
which would affect Juror Stich’s evaluation of the case.
We therefore find no prejudice to Tong.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
KLEIN, P.J.
We concur:
LUI, J.
DANIELSON, J.
APPENDIX “B” 1,
DENIAL OF PETITION FOR REHEARING
In the Court of Appeal of the State of California,
Second Appellate District, Division Three.
(Post Card Notice)
MARCH 30, 1983
Los Angeles, California
PEOPLE vs. TONG
No, 41002
PETITION FOR REHEARING DENIED
Clay Robbins, Clerk
APPENDIX “C”
DENIAL OF PETITION FOR HEARING
(Post Card Notice)
Clerk's Office, Supreme Court
4250 State Building
San Francisco, California 94102
MAY 19, 1983
I have this day tiled ORDER
HEARING DENIED
In re: 2 CRIM. No, 41002
People vs. Woo Chin Tong
Respecttully,
Clerk
APPENDIX “D” 13.
STATEMENT OF THE RECORD
Misconduct of the Prosecution
And
Improper Receipt of Evidence
Commencing at Reporter’s Transcript p. 474
At the bench the following colloquy occurred:
“THE COURT: What’s the purpose for asking
that question, counsel?
“MR. FOX: Motive.
“THE COURT: Just a moment, please. Are you
suggesting that gang members give a motive to commit
a crime such as - -
MR. FOX: Motive for this particular crime, it
does. It’s the People’s theory - - and we intend to
prove it by witnesses - - that he is a member of Wah
Ching, among the other three that were present; that
they are being paid extortion money by the Lee
Terrace Bar for protection. They were called that
evening to come there because the owner did not want
the police there. The purpose of them coming there
was to remove the people that were being referred to
as the ‘Big Party.’ On this particular evening, he was
carrying the gun for that very reason, in order to
secure the bar of those individuals.”” (R.T. 474-75.)
The court stated that a hearing would have to be held on
the claims prior to bringing back the jury. Defense counsel
complained that the prosecution had put on their case and
rested and had laid no foundation for this type of evidence.
The court advised him to keep his voice down because the jury
could hear what he was saying. The judge then observed:
“THE COURT: Let me ask you this and then I will
let you respond if you feel it is necessary to do so; no-
Appendix “D”’ 14.
where in your opening statement did you have any
thing about the motive in this case being that it was
protection, that is, that the defendant was a member
of a gang that purportedly provides protection for
merchants in the Chinatown area and that the People’s
theory of the case is that the defendant killed or went
there, rather, to honor his contract of protection, so to
speak. I think that’s extremely material when it comes
to the question of defense. They should certainly know.’
(R.T. 476-77.)
The prosecutor’s response only suggested that he could
’
provide evidence that the defendant was a member of the
Wah Ching and did not address the issue of the connection
between that fact, if proved, and the motive for the crime as
outlined by the prosecutor in his reason for introducing the
evidence. The judge then asked:
“THE COURT: Is there anything in the discovery
material other than the fact that the defendant purport-
edly is a member of a gang that would lead an attorney
defending a person - - lead him to believe that part of
the People’s case would be an effort to prove motive,
the motive being that of enforcing a protection contract?
“MR. FOX: Well, is there anything that - -
“THE COURT: I’m asking you; don’t ask mea
question.
“MR. FOX: I don’t quite understand the Court’s
question.
“THE COURT: As I understand, Mr. Fox, what
you're saying is that there is information in the discov-
ery material that shows or at least suggests the defendant
is a member of a particular gang.
“MR. FOX: Correct.
“THE COURT: Other than that membership, is
there anything in that discovery material that would
lead a defense counsel to believe or to be aware of the
fact that the People were intending to show that the
defendant’s motive for committing a particular crime was
to enforce a protection contract?” (R.T. 477-78.)
Appendix “D”’ ‘3.
After a brief exchange the court ordered a hearing on the
subject and, for the moment, sustained defense counsel’s ob-
jection to the question and instructed the jury to disregard
it (R.T. 479-80).
At the 402 hearing the court led off with a correct legal
observation:
“All right. I did read People versus Szeto. The issue
that you’re talking about is gang identification, mem-
bership in a gang. As I read that case, the motive
became important because the defendant in that
case purportedly disposed of guns, and his member-
ship in a gang was offered to show a motive; that is,
his reason, the motive for him to take possession of
those guns and dispose of them and secrete them.”’
(R.T. 483.)
The prosecutor’s response was, ‘‘Those are the facts of
this case, Your Honor.”’ He also mentioned that it was per-
missible to use gang membership to impeach witnesses where
it was appropriate. When the trial court asked the prose-
cutor to restate his position he stated that ‘‘the affiliation
of this defendant with Wah Ching is to explain his posses-
sion of a firearm that particular evening” and that the Lee
Terrace bartender made a phone call prior to the arrival of
the defendant and “‘that phone call was made with the
specific purpose in mind to obtain the assistance of this
gentleman along with several other friends.”’ Defense counsel
pointed out that the bartendress in question was available ir.
the hall. The prosecutor then suggested that he was ina
position to prove that ‘“‘this defendant was provided or
possessed the firearm in order to check on several establish-
ments; in particular, Lee Terrace Bar, which was a bar that
Appendix “D”’ 16.
was part of the so-called protection gang that was being < 9n-
ducted at that time by Wah Ching.”’ The prosecutor also sug-
gested that the defense might produce witnesses who were
active members in Wah Ching and would have a motive to
fabricate their testimony. The trial judge then synthesized
the issues:
“THE COURT: Well, that, of course, would fall
within Wing Y. If you had a claim of motive to fabri-
cate, I follow you then. In other words, say a witness
took the stand and testified as a witness for the defense
and you attempted to show motive to fabricate on the
basis of a comraderie, so to speak, because of their gang
membership. That falls within the Wing Y case.
“Let me see, Mr. Fox, if I can capsulize the issue
of motive more in a nutshell, at least as to what you
are trying to tell me.
‘Are you indicating, in effect, that as the case
now stands, your purpose for showing the defendant’s
motive for being there, i.e., that he was there as part
of his job or duty as a member of Wah Ching and fur-
nishing protection to that bar; and that that reason
for being there impeaches his testimony as to why he
was there. Is that it in a nutshell?
“MR. FOX: That’s one aspect. A second, also
is to impeach his testimony regarding why he was in
possession of a firearm that night.”’ (R.T. 483-89.)
Testimony was then taken. Investigator Vogl testified
to compiling a ‘““murder notebook”’ on the case and that it
has references to the defendant and the persons with him
being possibly Wah Ching members (R.T. 490-98). The
court then opined:
“I’m concerned with this: assume that the book,
the murder book, is full of references to Wah Ching
membership; how does that put anyone on notice
that being a member of Wah Ching is synonymous
with being part of a gang who furnishes protection
Appendix “D”’ it
to business establishments? That’s my concern.”
(R.T. 501.)
The prosecution conceded that was their theory, but that
there might not be evidence to support it (R.T. 501-02).
Investigator Vogl, when questioned by defense counsel,
conceded that he had no information that the ownership
of the Lee Terrace Bar placed a phone call to the defendant
or that the defendant or the Wah Ching Gang had been paid
to protect the establishment (R.T. 507-09).
The next witness, Frank Yen, testified that he was a
police officer for the City of Los Angeles and had worked
the Chinatown area “‘a little over two, three months.” He
testified that he had seen the defendant in the company of
persons he felt were members of the Wah Ching Gang. (R.T. '
516-28.)
The final witness during this hearing was Randall Quan,
another police officer assigned to the Asian Task Force. He,
in essence, testified that he was familiar with various mem-
bers of the Wah Ching Gang and that in his opinion the de-
fendant was a member (R.T, 528-51). He defined the crim-
inal objectives of the Wah Ching as wanting “to get money
without working for it or getting services, such as going to
restaurants to eat, without paying.”’ (R.T. 541.)
The court then accepted a stipulation to the effect that
if Edward Kwan were called he might testify that he was a
member of the Wah Ching Gang and that the defendant and
the two other persons who were with them on the night of the
shooting were also (R.T. 552-53).
Argument was then heard. The prosecutor’s argument
Appendix “D”’ 18
at best amounted to maintaining that if the defendant w°s a
member of the Wah Ching Gang that would prove why he
had a gun and did what he did at the Lee Terrace without any
enunciation as to why those conclusions would follow (R.T.
554-58). The defense pointed out that the prosecution’s
argument was mere theory without even the claim of eviden-
tiary support and that the prosecution’s arguments did not lead
to the prosecution's conclusions (R.T. 558-60). The court
then decided that if the question of gang membership became
relevant, Randall Quan was in a position to offer his opinion
on whether the defendant or others were members of the Wah
Ching Gang. But the court concluded that such testimony
would be relevant “only if the occasion arises.’’ The court
ruled that based on the evidence adduced, and which the
prosecution claimed it could adduce, that membership in
the Wah Ching Gang was inadmissible. The court added:
“I’m not foreclsoing you, however, from presenting
evidence of gang membership if the occasion should
arise, such as -- the only instance I would assume
that might be admissible is, for instance, if a member
of the gang testifies and testifies in a way to corrobo-
rate the defendant’s story, the defendant’s testimony,
because I think that there is a motive on the part of
that gang member to help his friends, a gang member,
and it’s material and relevant . . . at this stage of the
evidence, I do feel that it would not be appropriate.
I do feel that it would be a basis for a reversal, espec-
ially if it ends up that the matter is a close case.”’ (R.T.
560-61.)
The court admonished the prosecutor: ‘‘Before you do direct
a question to the defendant with reference to membership in
this particular gang, Wah Ching, or any other gang, ask to
Appendix “D” 19.
approach the bench or make your offer of proof and indicate
what you plan to do in that regard.” (R.T. 562. Emphasis
supplied.)
The following significant exchange terminated the hear-
ing:
“THE COURT: Yes. No question about his mem-
bership. In other words, do not question him about the
membership in any gang at this stage.
“MR. FOX: May J ask questions concerning
familiarity with any individuals who he knows to be
members of Wah Ching?
“THE COURT: No. I don't see any relevance at
this point. I think that would be the same thing. In
other words, if they belong together - -
“MR. FOX: I understand what the court's
analysis is and I will proceed in that manner.”” (R.T.
564-65. Emphasis supplied.)
A little later in the cross-examination of the defendant,
the prosecutor marked for identification a folder containing
six photographs of Orientals (People’s 13) and showed it to
the defendant. He was asked whether there was a picture of
Edward Kwan in the group and the defendant answered “Yes.”
He then put his initials by the number corresponding to Mr.
Kwan’s picture. Then followed the next bombshell:
“Q. BY MR. FOX: Is Edward Kwan a member
of Wah Ching?
“MR. WEIT: Objection, Your Honor. May we
approach the bench?”’ (R.T. 635-36.)
At the bench the following dialogue ensued:
“THE COURT: Mr. Fox, I told you that before
you made any reference to Wah Ching, you should
advise the Court that you are intending to do so. If
there is some objection I'd hear it and make a ruling
before that matter was presented.
Appendix “D”’ 20.
“MR. FOX: Then] misunderstood the Court.
My understanding was I was not to ask him concern-
ing any of his affiliations or membership.
“THE COURT: I don’t want any reference to
Wah Ching unless I ruled that it’s admissible.
“MR. FOX: I apologize to the Court.
“MR. WEIT: Thiis is the second time that has
come up. It was inflammatory the first time. Cer-
tainly it is inflammatory the second time. I think
I would be entitled to make a motion for dismissal
at this point on the basis of prosecutorial misconduct.
“THE COURT: Are you making a motion for
mistrial?
“MR. WEIT: Yes, I suppose I should, Your
Honor.
“THE COURT: Well, your motion for dismissal
-- I’M saying are you making a motion for mistrial.
Did you misspeak?
“MR. WEIT: Yes, Your Honor, I did.
“THE COURT: Motion is denied. All right.
Again, to be perfectly clear, any time you get ready
to ask anything about Wah Ching, unless it’s brought
up by some witnesses’s testimony, defense witnesses,
then you ask to approach the bench and make an offer
of proof, and | will make a ruling.” (R.T. 637-38.)
Again, the prosecution sought to justify eliciting
Wah Ching membership , but the court responded:
“THE COURT: The objection is sustained.
Do not make any reference to Wah Ching based
on the evidence that’s been presented at this point.
Again, if you intend to make reference to Wah
Ching, I will hear your offer of proof as the occasion
develops.”” (R.T. 638-39.)
Cross-examination continued anew with the court
omitting to inform the jury of its ruling or defense counsel's
objection (R.T. 640).
In his closing arguments, the prosecutor took full
advantage of his previous misconduct. He spoke of his
Appendix “D” 21.
difficulties sleeping the night before giving his summation,
due to his thoughts about the pictures of Ralph Chew, both
alive and dead. He characterized him as a human being
who was “‘living, breathing, and in this particular case he
was contributing during the course of his 37 years of life”’
(R.T. 761). The clear insinuation was that the defendant
and his friend were gang members who did not work and
were social liabilities best taken off the street. He spoke of
the defendant’s intentional act being committed not only
against society “‘but to a wife and mother and children,
without any reason to think that the defendant even
suspected the deceased had a wife or children” (ibid). After
all he was only seen drunk in the company of officer Bon-
tempo. His wife had been ordered home earlier in the evening.
He also emphasized that the defendant’s friends did not show
up to corroborate his version of the events, although, as will
shortly be made clear, the prosecution sought to bring only
one of them into court and then. pursuant to a fraudulent
subpoena which resulted in the witness Edward Kwan being
illegally jailed for two days (R.T. 774-857).
Finally, the prosecutor fully capitalized on the way he
had misconducted the case and the presumed integrity of
his own office. He told the jury, “I have some impressions
about Mr. Tong and his three friends; however, those impres-
sions are not evidence in this case’ (R.T. 781). That, of
course, was the old “if you only knew what I know, but |
am not legally permitted to tell you” argument. And in this
case it certainly caused the jury to reflect back on his claims
ob)
Appendix “D”’ ae
of gang activity.
And the prosecutor left the jury with one more choice
morsel:
“He didn’t like Ralph Chew. Why didn’t he like Ralph
Chew? I have some feelings. I have some reactions
about it. Ralph Chew was married to a young lady
who was Caucasian. Ralph Chew was associating in the
Lee Terrace Bar with Caucasions.”’ (R.T. 783
How low and misleading can one get. The only evidence of
racism was the testimony of one of Ralph Chew’s friends
that he was hurling racist epithets at the defendant and that
the defendant was hurt by it, not vice versa (R.T. 175-76).
Furthermore, Ralph Chew’s wife was at home when these
events transpired, not in the Lee Terrace Bar. The defendant
had no reason to believe that Chew was married to a Caucasian,
or anyone for that matter.
The final example of the prosecutorial misconduct is
unique in that it was not the misconduct per se which defines
the limits of the harm done but, rather, the proceedings which
transpired because of it. Also, it requires an organizational
quirk, because it is necessary to retrace our steps a bit in order
to comprehend what happened after jury deliberations began.
Also, an additional legal violation resulted from the following
events which is not even predicated on prosecutorial miscon-
duct.
As we know, after the prosecution had rested its case-in-
chief and during the defendant’s testimony, a protracted hear-
ing was held under Section 402 of the Evidence Code, outside
the presence of the jury, addressing the subject of whether
the prosecution could question the defendant about his alleged
Appendix “D”’ 23.
affiliation with the Wah Ching Gang or its members (R.T. 474-
80, 482-565; C.T. 24). As noted previously, such a hearing came
on the heels of the prosecutor’s question in the presence of the
jury asking the defendant whether he was a member of the Wah
Ching (R.T. 474). At the culmination of the hearing the prose-
cutor introduced the following topic:
“MR. FOX: Before the court leaves the bench, I’m
going to request to provide the court with a notice of a
subpoena of an Edward Kwan dated April 23, 1981. I
would further point out to the court that, in fact, the officer
who contacted him today indicated or requested him to be
present in court at 2:00 p.m.
“THE COURT: That is the subpoena with a return
service?
“MR. FOX: Correct, Your Honor. He has failed to
acknowledge either the subpoena or the personal request.
“THE COURT: Upon presentation to the clerk of
the return of service properly signed on the subpoena, a
body attachment is to issue for the immediate apprehen-
sion of the defaulter. I should say an attachment for the
defaulter. No bail.
“Now, Mr. Fox, you can get a copy of that body
attachment and get it to your investigating officer and it
can be made today.
“MR. FOX: Yes, Your Honor.
“THE COURT: You can go and pick him up and
bring him in tomorrow morning. No bail.’’ (R.T. 566;
C.T. 24.)
On May 1, 1981, the jury was instructed and, because it
was Friday afternoon and a juror had a commitment to catch
a plane, the jury was dismissed for the week end and the com-
mencement of their deliberations was scheduled for Monday,
May 4, 1981 at 9:30 a.m. After the jury was excused, the
“defaulting witness,’’ Edward Kwan, was surrendered to the
court and questioned under oath with an interpreter sworn to
Appendix “D”’ 24.
assist him (R.T. 843; C.T. 27). Mr. Kwan testified that he
had not been served with a subpoena, so the court made
the following inquiry:
“THE COURT: Mr. Fox, this witness was a wit-
ness that you indicated had been served.
“MR, FOX: That’s correct, Your Honor.
“THE COURT: Who conducted -- who was
the server or the processor?
“MR. FOX: An Asian Task Force Officer per-
sonally handed the subpoena to the witness, Your
Honor.” (R.T. 844.)
The court then stated that the officer who served the sub-
poena should come to court to testify to that fact, that the
court intended to conduct a contempt hearing and that Mr.
Kwan would require a lawyer. The District Attorney stated
that he would have his witness present on Monday. Again,
the court inquired of the witness whether he denied receiving
the subpoena and he categorically stated that he did not. The
court, nevertheless, with no evidence to the contrary, disbe-
lieved Mr. Kwan, acknowledged his indigence, appointed an
attorney to represent him, slated a hearing for the next Tues-
day and ordered Mr. Kwan taken into custody unless he,
despite his indigence, could post $500 bail. The prospective
witness went to jail (R.T. 844-47),
On Monday, May Sth, the court related to counsel that
he had spoken to one of the jurors on the phone that morning
and she had suffered injuries during a clash between her bicycle
and another person’s car and, if she was unable to join the re-
maining jurors during the deliberations that afternoon, she
would be replaced by an alternate. That afternoon, counsel
and jury were informed that the court had not heard from the
J
s"
Appendix “*D” 25.
missing juror and, after a brief colloquy, the matter was con-
tinued until the next morning with the understanding that
if the missing juror was unable to attend and deliberate, she
would be replaced by the alternate (R.T. 846-47; C.T. 28).
On Tuesday, May 5th, the court conducted proceedings
out of the presence of the jury, but in the presence of the
alternate. The court explained that the missing juror was
still physically unable to attend and that he was going to
replace her with the alternate. Before swearing in the
alternate who would participate in the entire deliberative
process with the other eleven jurors, the court stated in her
presence that it was going to conduct contempt proceed-
ings against the defaulting witness, Mr. Kwan.
The prosecution then called Ross T. Arai to the stand
and he explained that he was a police officer for the City of
Los Angeles working the Asian Task Force. He identified
the defendant's friend, Edward Kwan, and stated that he
was requested to serve a subpoena on him on April 23rd
and that he went to Mr. Kwan's father’s sewing shop expect-
ing to find Mr. Kwan there. He was not there and the officer
talked to his father and sister and requested his father to give
the subpoena to Mr. Kwan. His father signed the subpoena
and accepted it. The officer then testified that on April 28th
he was asked to locate Mr. Kwan and obtain his attendance in
court. He went to the Tai Hong Restaurant in Chinatown
where he expected to find him and saw him seated at a table
with four other persons. The officer asked Mr. Kwan whether
he received the subpoena and was told that he did and that
Mr. Kwan should be in court at 2:00 that afternoon, and Mr.
Appendix “D”’ 26.
Kwan agreed to be in court at that time. He said that he
would come to court with his friends, one of whom seated
with him was the defendant. The officer further testified
that he conversed with Mr. Kwan in English and that he
(the officer) did not speak Chinese.
On cross-examination by Mr. Kwan’s attorney, it was
pointed out that the subpoena which was never even served
on Mr. Kwan called for him to appear on April 22nd, one
day before his father ever saw the subpoena. The court
exonerated the witness of contempt, naturally, because he
received a secondhand late subpoena, but he spent two days
in jail because of it (R.T. 849-57; C.T. 29).
The jury was then called into the courtroom, and Mrs.
Stich, the alternate juror, was installed as a regular juror. The
new jury then began to deliberate. (R.T. 857-58; C.T. 29.)
PROOF OF SERVICE BY MAIL
STATE OF CALIFORNIA _ )
) 8s.
County of Riverside )
I, the undersigned, say: Iam and was at all times herein mentioned, a citizen
of the United States and employed in the County of Riverside, California,
over the age of eighteen years and not a party to the within action or proceeding;
that
My business address is 11150 Spanish Hills, Post Office Box 626, Corona,
California 91720, that on JULY 94 , 1983, I served the within PETITION
FOR WRIT OF CERTIORARI fo the Court of Appeal of the State of
California, Second Appellate District, on the following named parties by
depositing the designated copies thereof, enclosed in a sealed envelope with
postage thereon fully prepaid, in the United States Post Office in the City
of Corona, County of Riverside, State of California.
Attorney General, State of California
3580 Wilshire Boulevard
Los Angeles, California 90010 (3 copies)
Disttict Attorney, County of Los Angeles
210 West Temple Street
Los Angeles, California 90012 (1 copy)
I declare under penalty of perjury that the foregoing is true and correct.
ExecutedonJULY 4% , 1983, at CORONA, CALIFORNIA.
-
D. A. Standefer
Dean-Standefer, P. O. Box 626, Corona, Ca. 91720
(714) 734-0811
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.