Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 03WF2744 Richard F. Toohey, Judge.
Susan L. Ferguson for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
A jury convicted defendant Vu Trowa Bui of five counts of attempted murder (Pen. Code, §§ 664, 187, subd. (a); all further statutory references are to this code unless otherwise stated), two counts of assault with a firearm (§ 245, subd. (a)(2)), two counts of street terrorism (§ 186.22, subd. (a)), and three counts of assault with a semiautomatic weapon (§ 245, subd. (b)). The jury also found true enhancements of personal discharge of a firearm (§ 12022.53, subd. (c)) and personal use of a firearm (§ 12022.5, subd. (a)), and that all but two of the counts were committed for the benefit of a street gang (§ 186.22, subd. (b)(1)). Defendant was sentenced to life with the possibility of parole after 15 years, plus an additional 20 years.
Defendant appeals on several grounds: there was insufficient corroboration of accomplice testimony, three of the attempted murder counts are barred by collateral estoppel, the court erred by failing to give two jury instructions, and his motion for new trial should have been granted because the prosecution failed to prove the identities of the victims. We find no error and affirm.
FACTS
1. Player’s Café Shooting
One afternoon in September 2002 Andy Dinh (Andy) drove David Nguyen (David) to defendant’s home. Defendant, whose moniker is Voodoo, was a member of the Nip Family Junior gang (Nip); David belonged to the Dragon Family Junior gang (Dragon). Dragon and Nip were aligned; the members associated and were back up for each other. Andy associated with both gangs.
The three decided to drive in Andy’s Honda to Player’s Café to search for rival gang members to shoot. Defendant brought two .38 caliber revolvers he had obtained from the Nips and extra bullets in a white sock; he gave one gun to David.
Gia Nguyen (Gia), a member of the Boys in the Hood gang, and Trinh Van (Trinh) had driven to the Player’s Café in Trinh’s Lexus. When defendant and his cohorts saw the Lexus in the parking lot, they thought it might belong to a rival gang member; Gia and Trinh were then standing in front of the Lexus. David and defendant got out of the Honda and fired between three to fifteen shots at the men, but missed them. They got back into the car and drove away, stopping at a dumpster to dispose of the spent cartridges and bullets from the guns. Andy then dropped off David and defendant a few blocks further away. After a short distance, Andy was pulled over by an officer responding to a call about the shooting.
A couple of days after the shooting An Pham (Pham), a member of the Dragons, and a friend of Andy, David, and defendant, heard David and defendant speak of the shooting. David described what had happened and defendant admitted that he was one of the shooters and had used a Nip gang gun. Pham, who lived across the street from Player’s Café, previously had seen defendant with a .38 magnum.
2. Cyber Station Café Shooting
In March 2003 defendant was at a billiards hall with Phan Nguyen (Phan), Quoc Pham (Quoc), Ronnie Wang (Ronnie), and Margaret Nguyen (Margaret), all members of the Nip gang. When a fight broke out between them and members of the Young Locs gang, Phan was beaten. Michal Vu (Michael), a member of the Tiny Rascals gang, was friends with members of the Nips and the Dragons, including Quoc and defendant, and “hung out” with them. When Michael heard of Phan’s beating, he and three others, including Albert Nguyen (Albert), also a Tiny Rascal member, and An Nguyen (An) met up with defendant and the gang members named above. They decided to retaliate and went in two cars in different directions to look for members of the Young Locs. Margaret, Quoc, and defendant were in Quoc’s green Honda, with defendant sitting in the back seat; the others left in An’s SUV.
Brian Nguyen (Brian), Kenneth Phaxayaseng (Kenneth), and An Mai (Sonny), who had been at the Cyber Station Café, were in a parking lot when Quoc’s car drove up to them. Defendant and Quoc thought they were gang members and defendant asked them “Ya’ll bang” or “Where you from,” which means what gang are you in. When no one answered, defendant asked again. Kenneth replied, “We’re from no[]where.” After defendant inquired if they were from Dragon, Sonny responded, “Fuck [Dragon], we’re from [the Vietnam Forever gang].” Defendant rolled down his window, yelled “Mother fuck [Vietnam Forever]” and fired three to ten shots at them from the gun he held in his gloved hand.
As the victims ran, Quoc drove to a nearby residential area and parked. The three got out of the car but left the gun inside. Defendant called An to come to pick them up in his SUV. Three of An’s passengers got out so defendant and company could get in. Subsequently the three pedestrians were stopped by an officer because one of them matched the description of a suspect in the shooting.
Additional facts are set out in the discussion.
DISCUSSION
1. Sufficient Accomplice Testimony Corroboration
a. Introduction
Defendant asserts there was insufficient corroboration for the accomplice testimony of Andy regarding the Player’s Café shooting and Quoc as to the Cyber Station Café shooting. We disagree.
A conviction may not be based solely on an accomplice’s testimony; there must be sufficient corroborating evidence. (§ 1111.) Although the “corroborating evidence need not by itself establish every element of the crime” or corroborate the accomplice’s testimony in full, “it must tend to implicate the defendant by relating to an act that is an element of the crime.” (People v. McDermott (2002) 28 Cal.4th 946, 986.)
“The corroborating evidence may be circumstantial or slight and entitled to little consideration when standing alone . . . .” (Ibid.) It “‘“‘is sufficient if it does not require interpretation and direction from the testimony of the accomplice . . . .’”’” (People v. Williams (1997) 16 Cal.4th 635, 680.)
b. Player’s Café Shooting
The trial court found, as a matter of law, that Andy was an accomplice to this shooting. Andy testified that he drove defendant and David to Player’s Café to look for members of a rival gang so they could shoot them. David and defendant had guns and defendant carried extra bullets in a white sock. When they reached the café and saw a car they thought was a rival gang member’s, they fired several shots at two men standing near it. They fled in Andy’s car and disposed of the bullets.
Defendant contends the only corroborating evidence came from Pham, who testified he heard defendant say he was one of the shooters and had used a gang gun. Defendant claims this was insufficient to show “that the shooting was premeditated, willful, and deliberate.” But it is not necessary that corroborative testimony prove every element of the crime. (People v. McDermott, supra, 28 Cal.4th at p. 986). Pham’s testimony shows defendant committed a “‘direct but ineffectual act . . . towards killing another human being’” (People v. Lee (2003) 31 Cal.4th 613, 618), one element of attempted murder. That, according to defendant, Andy’s testimony alone is the only evidence “that transforms the crime from second degree [attempted] murder into first degree [attempted] murder” does not mean there was insufficient corroboration. Even using defendant’s authority, People v. Reingold (1948) 87 Cal.App.2d 382, this evidence is sufficient because it “tend[s] to connect the defendant with the offense charged. [Citations.]” (Id. at p. 402.) Nor are we persuaded that Pham’s testimony is insufficient because it was inconsistent or unequivocal. He said nothing to contradict his testimony that defendant admitted he shot at the victims at the Player’s Café.
Moreover there was other corroborating evidence. Francis Calhoun, a witness to the shooting, wrote down a description and license plate number of the car and gave it to police; she also identified Andy as the driver of the car she had seen at the shooting. In a search of the car police found textbooks bearing the name David Nguyen, a white sock, and a bottle. Officers who went to the site of the shooting found bullet fragments and holes in a car and window near the café.
Additionally, there was DNA evidence. Of the three contributors to DNA on the inside cuff of the sock found in the back seat of Andy’s car, a substantial portion was consistent with defendant’s. DNA from several people on the interior sole of the sock contained DNA that is consistent with defendant’s DNA profile, and defendant’s DNA could not be excluded from that found on the outside cuff. DNA consistent with defendant’s was also found on a bottle under the passenger seat of Andy’s car.
Defendant claims the DNA evidence has little value standing alone. But that specifically does not make it insufficient. (People v. McDermott, supra, 28 Cal.4th at p. 986.) Moreover, it does not stand alone, having been found in the car that was independently identified as being used in the shooting.
In addition, the gang expert testified David, Andy, and defendant were active members of the Nip and Dragon gangs. Further, after he was arrested, defendant gave false information to the police, including that he did not know Andy or the location of the Player’s Café, despite the fact he lived nearby. (People v. Avila (2006) 38 Cal.4th 491, 563 [the defendant’s attempt to conceal involvement in crime “implied consciousness of guilt constituting corroborating evidence”].) While some of this evidence standing alone may be “slight” or “entitled to little consideration” (People v. McDermott, supra, 28 Cal.4th at p. 986), it is sufficient because “‘“‘it does not require interpretation’”’” from Andy’s testimony. (People v. Williams, supra, 16 Cal.4th at p. 680.)
c. Cyber Station Café Shooting
The court found Quoc and Michael were accomplices in the Cyber Station Café shooting as a matter of law. Quoc testified that he was present with defendant and others at the billiards parlor when Phan was beaten by members of the Young Locs gang. He also said he met with defendant and the other gang members when they decided to retaliate. He testified that defendant, who was armed, sat in the back seat of his green Honda. Quoc said that when he and defendant saw three men they thought were rival gang members in the parking lot near the café, defendant asked them where they were from. When one answered Vietnam Forever, defendant fired several shots. After driving a short distance, Quoc, along with Margaret and defendant, got out of the car and fled, leaving the gun inside. He testified defendant called someone in the SUV to come pick them up. When it arrived, three occupants got out so defendant and his cohorts could get in.
Michael also testified about the meeting with defendant and others where they expressed anger about Phan’s beating and decided to retaliate. He testified about the group taking two cars, and that defendant, Quoc, and Margaret went in Quoc’s green Honda while he and the others left in the SUV. Michael also said that defendant called the SUV to pick him up, and that he and two other passengers got out to make room for defendant and the two with him. Once Michael was on foot he was stopped by police.
There was sufficient independent evidence to corroborate their testimony. Phan testified that when he was beaten at the billiard hall by the Young Locs, Quoc and defendant were present. Moreover, Brian, one of the victims, testified that a green Honda pulled up behind him, Kenneth, and Sonny in the parking lot near the café. When the passenger in the rear seat asked where they were from, Sonny told them Vietnam Forever, whereupon that “guy” in the back seat started to shoot. Nearby police officers heard several shots and immediately went to investigate. One came upon the victims; another found the green Honda where Quoc testified he had left it.
Inside it was the gun, which shell casings from the scene matched. In the car police also found a white sock containing four unfired bullets. DNA consistent with defendant’s was found on the exterior sole and cuff of the sock, where someone would hold it, and the exterior of two gloves also found in the car.
That defendant’s DNA was not found on the inside of the gloves or the gun grip does not make this corroborating evidence insufficient. It connects defendant to the crime and need not be sufficient standing alone. (People v. McDermott, supra, 28 Cal.4th at p. 986.) Even defendant’s expert agreed defendant could not be excluded as a contributor to the DNA found.
We reject defendant’s argument the corroborating evidence does not establish premeditation or deliberation for the same reasons discussed above. Further, that defendant was searching for members of the Young Locs and instead shot at the victims when one identified them as members of Vietnam Forever does not mean this element was not proven. “Premeditation and deliberation do not require an extended period of time, merely an opportunity for reflection. [Citations.]” (People v. Cook (2006) 39 Cal.4th 566, 603.) The period between defendant’s initial encounter with the Vietnam Forever members and when he started shooting was enough for him to have premeditated and formed the intent to deliberately shoot them. He inquired three times where they were from, which the gang expert testified was a challenge. When he received an answer he did not like, he shot at them. This suffices to show an opportunity to reflect.
2. CALCRIM No. 334
Defendant contends the court should have instructed with CALCRIM No. 334 regarding accomplice testimony because there was evidence Pham was an accomplice to the shooting at Player’s Café.
CALCRIM No. 334 is given when there is a factual dispute as to whether a witness is an accomplice. It instructs that if the jury decides such is the case the witness’s testimony requires corroboration. The court must give this instruction if there is substantial evidence of accomplice liability. (People v. Lewis (2001) 26 Cal.4th 334, 369.) Defendant has the burden to show by a preponderance of the evidence that a witness is an accomplice. (People v. Snyder (2003) 112 Cal.App.4th 1200, 1219.) “‘[I]f the evidence is insufficient as a matter of law to support a finding that a witness is an accomplice, the trial court may make that determination and, in that situation, need not instruct the jury on accomplice testimony. [Citation.]’ [Citations.]” (People v. Lewis, supra, 26 Cal.4th at p. 369.)
An accomplice is “one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (§ 1111.) “[T]o be chargeable with the identical offense, the witness must be considered a principal under section 31. That statute defines principals to include ‘[a]ll persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised or encouraged its commission . . . . [Citations.]’” (People v. Horton (1995) 11 Cal.4th 1068, 1113-1114.) “An accomplice must have ‘“guilty knowledge and intent with regard to the commission of the crime.”’ [Citation.]” (People v. Lewis, supra, 26 Cal.4th at p. 369.)
Here, after reviewing Pham’s testimony, the court denied the request to give CALCRIM No. 334. The evidence on which defendant relies was not sufficient to show by a preponderance that Pham was an accomplice.
Defendant points to Andy’s statement to the police that he drove David and a third person, whose name he did not know, to Player’s Café. He also said David had asked him to stop on the way to a fourth persons’ house, which was close to the café. Pham lived across the street from the café. Andy told them David was sitting in the back of the car and defendant was in the front passenger seat and that after the shooting David left on foot and he and the third person drove away. At trial Andy testified that when he drove David and defendant to the café David was in the front and defendant was in the back seat. Each got out and after the shooting each got back in the car before he drove away.
Calhoun, who witnessed the shooting, testified the two shooters both got out of the back seat of the car. Another witness testified three males got out of the car. When police examined Andy’s car they found a footprint on the inside front windshield that did not match defendant’s.
From this evidence defendant argues that, despite the officer’s testimony that Andy never said they actually picked up a fourth person on the way to the café, the “jury could have inferred” Andy and his passenger stopped at the house near the café and that it was Pham’s house. He ties this to Andy’s testimony that he did not remember when he last saw Pham but it was “right before the shooting.” He also asserts that, based on the unidentified footprint in the car window and inconsistencies in Andy’s testimony, the jury “could have concluded” Andy was “attempt[ing] to conceal . . . Pham’s involvement in the crime.”
This is not substantial evidence that Pham was present or an accomplice but is mere speculation and wishful thinking. Nothing suggests much less shows it was Pham’s footprint in the car window nor that he was the person Andy initially mentioned to police as leaving after the shooting on foot to return to his nearby home, as defendant argues. The court did not err in refusing to give the instruction.
3. CALCRIM No. 358
Defendant argues the court sua sponte should have given CALCRIM No. 358 instructing the jury to consider with caution the statements Pham overheard defendant making about the shooting at Player’s Café. (Defendant seemed to state at oral argument that this instruction should also have been given with respect to the Cyber Station Café. This was not raised in the briefs and we will not consider a claim raised for the first time at oral argument. (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 232, fn. 6.)) The Attorney General concedes the instruction should have been given but asserts the error was harmless. We agree.
CALCRIM No. 358 states: “You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether or not the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such [a] statement[s]. [¶] [You must consider with caution evidence of a defendant’s oral statement unless it was written or otherwise recorded.]”
To determine if failure to give this instruction is harmless we look at “‘whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given.’ [Citation.]” (People v. Wilson (2008) 43 Cal.4th 1, 19.) The purpose of CALCRIM No. 358 is “‘“to help the jury to determine whether the statement attributed to the defendant was in fact made . . . .”’” (Ibid. [discussing parallel CALJIC instruction].) In so doing the court looks at several factors. In ruling failure to give a cautionary instruction was harmless, one court stated, “‘The testimony concerning defendant’s oral admission was uncontradicted; defendant adduced no evidence that the statement was not made, was fabricated, or was inaccurately remembered or reported. There was no conflicting testimony concerning the precise words used, their context or their meaning.’ [Citations.]” (People v. Livaditis (1992) 2 Cal.4th 759, 784.)
Such is the case here. Pham’s challenged testimony is relatively brief. He testified he overheard David and defendant talk about the shooting at Player’s Café. He stated that during the conversation defendant did not say much; David spoke more. Defendant said something about the shooting but Pham could not remember. Pham next testified he thought defendant said he was one of the shooters. At that point he stated he did not want to be testifying against defendant. He knew defendant from when Pham had been in the Dragon gang and felt bad. Pham said he did not have anything against defendant.
He then repeated that during the conversation, defendant said he was at the shooting but that David, not defendant, was telling the story. When the prosecutor asked whether he was testifying that defendant had not shot the gun, he said he did not remember. After being reminded that he had just testified defendant said he had been a shooter, Pham responded, “Yes, sir.” He also testified defendant said the gun belonged to the gang.
Defendant claims Pham gave “three different accounts” of the conversation and that his testimony was “equivocal and internally inconsistent as to whether [defendant] made the admission.” We disagree. Aside from not remembering, Pham consistently testified defendant said he had been one of the shooters. And it is clear from the context of the testimony and from Pham’s admission he did not want to be testifying against defendant that he did remember what defendant said but did not want to repeat it at trial. Further, there was no conflicting evidence.
Moreover we disagree that Pham was a biased and hostile witness. Although Pham did state he previously “got in trouble” with his former gang, the Dragons, and wanted to be left alone, he denied wanting to get even or that he was mad. He also testified he would rather go to jail for a year or two than have defendant go for 30. Further, there was substantial independent evidence tying defendant to the shooting, as detailed above.
Furthermore, the court gave CALCRIM Nos. 226 (Witnesses), 301 (Single Witness Testimony), 302 (Evaluating Conflicting Evidence), 316 (Additional Instructions on Witness Credibility), and 318 (Prior Statements as Evidence). These instructed the jury about how to evaluate a witness’s credibility, including whether he is truthful or biased, his ability to recall, whether there was conflicting evidence and whether the witness had been convicted of a crime, which Pham had. Given these instructions, the jury was sufficiently equipped to evaluate Pham’s testimony as to defendant’s out of court statements.
Finally, we reject the argument there was cumulative error when considered in conjunction with the court’s failure to find Pham an accomplice. As discussed above, Pham was not an accomplice. Thus “[t]here is no reasonable possibility that the failure to give the cautionary instruction affected the . . . verdict. [Citation.]” (People v. Livaditis, supra, 2 Cal.4th at p. 784.)
4. No Collateral Estoppel
Defendant maintains the convictions on the three counts of attempted murder at the Cyber Station Café must be overturned because the attempted murder convictions of two of his cohorts, Albert and Michael, were reversed by decision of this court (People v. Nguyen and Vu (Oct. 26, 2005, G033899) [nonpub. opn.]). There we held that the trial court’s finding defendant’s shooting at members of Vietnam Forever “was a ‘rash, unconsidered impulse’” and an “independent product of [defendant’s] mind” (id. at p. 16) could not support a conviction of those defendants for attempted murder based on the natural and probable consequences doctrine. (Id. at pp. 20-21.) Defendant here argues the finding in People v. Nguyen and Vu that his acts were rash and impulsive precludes a finding his acts in shooting at the Cyber Station Café were willful, premeditated, and deliberate. We disagree.
“Collateral estoppel has been held to bar relitigation of an issue decided at a previous trial if (1) the issue necessarily decided at the previous trial is identical to the one which is sought to be relitigated; if (2) the previous trial resulted in a final judgment on the merits; and if (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior trial. [Citations.]” (People v. Taylor (1974) 12 Cal.3d 686, 691, overruled on another ground in People v. Palmer (2001) 24 Cal.4th 856, 867.) Although there were several bases for the decision in Taylor, its “most compelling reason” was “to prevent the compromising of the integrity of the judicial system caused by the rendering of inconsistent verdicts.” (Id. at pp. 695-696.) Defendant relies on this principle to support his argument.
But Palmer subsequently held “that the rule of consistency is a vestige of the past with no continuing validity.” (People v. Palmer, supra, 24 Cal.4th at p. 858.) Now “[i]t is well settled that, as a general rule, inherently inconsistent verdicts are allowed to stand. [Citations.]” (People v. Lewis (2001) 25 Cal.4th 610, 656.) Moreover, “Taylor expressly limited the application of the doctrine to ‘the particular circumstances of the instant case where an accused’s guilt must be predicated on his vicarious liability for the acts of a previously acquit[t]ed confederate.’ [Citation.]” (People v. Lawley (2002) 27 Cal.4th 102, 163.) “‘“[I]n multiple cases arising out of the same offense, the mere fact standing alone that verdicts are . . . inconsistent, does not give rise to collateral estoppel. Specific issues may be decided differently in different cases. [Citation.] Likewise, a judgment acquitting one defendant does not generally bar subsequent criminal liability of a codefendant.”’ [Citations.]” (Ibid.)
In addition, contrary to defendant’s claim and as discussed above, there is sufficient evidence to support the finding the Cyber Station Café shootings were premeditated, willful, and intentional.
5. Motion for New Trial
Defendant made a motion for new trial on the grounds the prosecution had not proved the identities of the victims because the only evidence was inadmissible hearsay and even if admissible the testimony was insufficient because the names the witnesses used were not identical to those in the information. Gia testified about the shooting at Player’s Café, stating he was with Trinh. The court overruled defense counsel’s hearsay objection to the identification of Trinh. Brian, who testified about the Cyber Station Café shooting, over a hearsay objection said he was there with his friends Kenneth and Sonny. Brian was uncertain of the exact last name of Kenneth and testified it was “Phaxayaseng, something like that,” and that Sonny’s “real name” was An, but that he did not know his last name. A few questions later he answered that he hung out with Sonny and when the prosecutor asked, “Sonny or An Mai,” over objection he answered, “Yeah.” Defendant asserts the court erred in denying the motion.
We need not decide the claims defendant raises because, as the Attorney General points out, identification of a victim by name is not a required element of the crime of attempted murder. (People v. Lee (2003) 31 Cal.4th 613, 618-619 [elements of attempted murder]; see People v. Griggs (1989) 216 Cal.App.3d 734, 742 [“naming of the particular victim is not an element of assault with a deadly weapon”; issue is whether the defendant given sufficient notice to be able to put on defense]; see also People v. Coryell (2003) 110 Cal.App.4th 1299, 1308 & fn. 34 [same as to carjacking].)
The same theory applies to attempted murder. Defendant makes no argument that he could not defend against the allegations, and we reject his assertion that no one identified An Mai as a victim. The testimony recited above belies those assertions. In addition defendant makes no claim that the prosecution did not adequately prove the elements of the crimes.
We are not persuaded to the contrary by the out of state cases defendant cites to support his argument that the name in the information and that in evidence must match, especially in light of his admission there is no California case so holding.
DISPOSITION
The judgment is affirmed.
WE CONCUR: FYBEL, J., IKOLA, J.