Opinion
C042210.
7-29-2003
THE PEOPLE, Plaintiff and Respondent, v. VICHUAN HER, Defendant and Appellant.
A jury convicted defendant Vichuan Her of murder with a firearm enhancement, two counts of assault with a firearm, permitting another to discharge a firearm from a motor vehicle, and shooting at an occupied motor vehicle. (Penal Code, §§ 187, subd. (a), 12022, subd. (a)(1), 245, subd. (b), 12034, subd. (b), 246, respectively.) All counts were charged with a gang enhancement under section 186.22, which the People dismissed at the close of evidence. The trial court sentenced defendant to 25 years to life for the murder conviction plus 11 years 8 months for the other convictions and the firearm enhancement.
On appeal, defendant contends (1) the trial court erroneously admitted into evidence a spontaneous declaration identifying defendant; (2) his counsel ineffectively failed to object to hearsay evidence about the victims membership in a rival gang; and (3) he is entitled to 28 additional days of presentence custody credit.
We award defendant the additional 28 days of credit, but otherwise affirm the judgment.
BACKGROUND
On October 13, 2001, about 8:30 p.m., the murder victim, Wong Lee, was driving three of his friends home through Marysville. As he approached an intersection to stop at a traffic light, Lee looked in his rearview mirror and stated, "Look, Vichuan." The car behind Lees then cut off another car to pull alongside the left of Lees car. The front passenger in Lees car, Meng Xiong, looked to his left and recognized the driver of the car as Vichuan Her (defendant), a schoolmate of his and Lees from six or seven years earlier when they were in junior high.
Lee waited for the light to turn green and then made an unexpected right turn away from defendants car. Defendant followed Lee by cutting across a lane of traffic and cutting off yet another vehicle to make a right turn as well. The front passenger in defendants car then pointed a gun out the window and fired several shots at Lees car. Lee died as a result of a single gunshot wound to his head. None of Lees passengers were hurt.
An independent witness who was driving right behind the two cars at issue testified at trial. He described the cut-off maneuvers, the car defendant was supposedly driving, and the shooting, which he thought may have been the work of a nine-millimeter pistol. Gunshot residue was found on the inside of the drivers door and the front passengers door of defendants car (which was actually defendants familys car that defendant used occasionally). A nine-millimeter shell casing was found at the scene of the shooting. There was some evidence that after the incident defendants mother had made two indirect but incriminating comments regarding defendant to some classmates in her adult English class.
Defendant, along with five friendly witnesses, testified that he was in Oroville on the night of the shooting until about 9:00 p.m.; he then left Oroville to retrieve his fathers car in Olivehurst, passing through Marysville, including the area of the incident, around 9:45 p.m. or later.
Gunshot residue is transferable from clothing or hands, and the defendants father, using a different vehicle, had been hunting on the weekend of the shooting. Defendants father also owned a nine-millimeter handgun.
DISCUSSION
1. Spontaneous Declaration
Evidence Code section 1240 (hereafter, section 1240) sets forth the hearsay exception for spontaneous declarations. Under that section, "evidence of a statement is not made inadmissible by the hearsay rule if the statement: [P] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [P] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception." "Spontaneous" means that the declarant was startled or excited by an event and made the statement about the event while still nervously affected by it. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 590 (Rufo).) "Statements admitted under the spontaneous declaration exception to the hearsay rule are considered reliable because their spontaneity ensures that the declarant has not had time to reflect and fabricate." (People v. Pensinger (1991) 52 Cal.3d 1210, 1266, 278 Cal. Rptr. 640, 805 P.2d 899.)
We overturn a trial courts ultimate decision to admit a spontaneous declaration only if the court abused its discretion. (People v. Phillips (2000) 22 Cal.4th 226, 236, 991 P.2d 145.) Factual findings supporting that decision are upheld if substantial evidence supports them. (Id. at pp. 235-236.) We turn to those facts now.
While the victim, Wong Lee, was stopped in his car at a traffic light at the intersection of Fourth and E Streets in Marysville, he looked in his rearview mirror and stated, "Look, Vichuan." Vichuan is the defendants first name. This is the statement at issue. This statement described Lees perception of what, or more specifically, whom, he saw in his rearview mirror. The trial court found that "the utterance certainly relates or appears to relate to what Mr. Wong [sic] may have observed in his mirror." The statement satisfies subdivision (a) of section 1240 because it described an event that the declarant perceived.
The pivotal question, however, is whether Lees statement satisfies subdivision (b) of section 1240: was it "made spontaneously while the declarant was under the stress of excitement caused by such perception?" We must determine whether substantial evidence supports the conclusion that Lee was startled or excited by seeing defendant in his rearview mirror and made the statement while under the stress of excitement caused by such perception. ( § 1240, subd. (b); Rufo, supra, 86 Cal.App.4th at p. 590.) In so finding, we are not persuaded that Lees normal tone of voice undermines the substantial evidence supporting the courts determination.
As noted, the statement was made as Lee perceived the event, or just after. This left little time for any reflection that would diminish the statements veracity. Importantly, one of Lees passengers, Theng X., testified that Lee uttered the "Vichuan" statement in a manner "like somethings like gonna happen."
Furthermore, the evidence of events that occurred after Lees statement of "Look, Vichuan" helps to determine whether Lee was under the stress of excitement when he made the statement. Lee was driving his three friends home through Marysville. They were in the right lane of a road that had at least two lanes traveling in the same direction. They stopped at a traffic light, initially intending to proceed straight through the intersection after the light changed. After Lee made the statement, "Look, Vichuan," referring apparently to the defendant whom he saw in his rearview mirror, he unexpectedly turned right. One of Lees passengers, Meng Xiong, identified defendant at trial as the driver that Lee saw. Lees unexpected right turn reveals that seeing the defendant startled him. In addition to Lees unexpected right turn, defendants own actions reveal that Lee was startled by seeing him.
After Lee made the statement, defendant cut off another driver to change to the left lane and position his car alongside Lees. Defendant was now immediately to the left of Lee (while the two cars waited for the traffic light to change). Defendants actions, as testified to by the driver who was cut off, were hostile and aggressive. The driver testified, "I was cut off by a smaller vehicle. He just darted right in front of me. I had to hit my brakes or I would have hit him." By reasonable inference, defendant aggressively cut off the other driver because defendant also saw Wong Lee or recognized his car. If the defendant was so excited, it is reasonable to infer that Lee was too.
This inference is reinforced by the fact that defendant also turned right when Lee did so. Even though defendant was not in the right-hand turning lane, he made a reckless right turn across a lane of traffic, cutting off yet another driver. As the first driver who was cut off also testified, "when the light turned green [defendant] made a quick turn to the right and cut the truck off that was . . . to my right." If the defendant was so excited by seeing Wong Lee that he aggressively and recklessly cut off two other cars to follow him, then Lees unexpected right turn was not merely a casual choice, but, by reasonable inference, an escape attempt. If the defendant was after Lee or chasing him, it is reasonable to infer that Lee felt threatened from the moment he first saw defendant in his rearview mirror.
We conclude the trial court properly admitted Lees statement because substantial evidence shows that seeing the defendant startled or excited Lee, and that at the time Lee made the statement, "Look, Vichuan," he was still startled or excited.
2.Ineffective Assistance of Counsel
Defendant claims his trial counsel ineffectively represented him by failing to object to inadmissible hearsay testimony from Yuba County Probation Officer Glen Harris regarding the victims membership in a rival gang.
"Every person accused of a criminal offense is entitled to constitutionally adequate legal assistance." (People v. Frye (1998) 18 Cal.4th 894, 979, 959 P.2d 183 (Frye), quoting People v. Pope (1979) 23 Cal.3d 412, 424, 152 Cal. Rptr. 732, 590 P.2d 859); see also People v. Ledesma (1987) 43 Cal.3d 171, 215, 233 Cal. Rptr. 404, 729 P.2d 839 (Ledesma).) To establish ineffective assistance of counsel, a defendant must show that his counsels performance fell below a standard of reasonable competence, and that prejudice resulted. A defendant has been prejudiced if there is a reasonable probability that, but for counsels performance, the result would have been different; a reasonable probability is one sufficient to undermine confidence in the outcome. (People v. Anderson (2001) 25 Cal.4th 543, 569; People v. Kelly (1992) 1 Cal.4th 495, 519-520, 822 P.2d 385; Ledesma, supra, 43 Cal.3d at pp. 217-218.)
In reviewing a claim of ineffective assistance on appeal, we accord great deference to trial counsels tactical decisions. (In re Fields (1990) 51 Cal.3d 1063, 1069-1070, 275 Cal. Rptr. 384, 800 P.2d 862.) Were it otherwise, appellate courts would be required to engage in the "`"perilous process" of second-guessing counsels trial strategy." (Frye, supra, 18 Cal.4th at p. 979.) An attorneys decision whether to object to inadmissible evidence is considered part of trial tactics. (19A Cal.Jur.3d. (2001) Crim. Law: Rights of the Accused, § 133, pp. 327-328, citingFrye, supra, 18 Cal.4th 894; People v. Bolin (1998) 18 Cal.4th 297, 956 P.2d 374; People v. Fairbank (1997) 16 Cal.4th 1223, 947 P.2d 1321; & People v. Williams (1997) 16 Cal.4th 153, 940 P.2d 710.)
Accordingly, to reverse a conviction on appeal on the ground of inadequate counsel, the appellate record must affirmatively disclose that counsel had no rational tactical purpose for the act or omission. (People v. Fosselman (1983) 33 Cal.3d 572, 581, 189 Cal. Rptr. 855, 659 P.2d 1144.) In all other cases, the conviction will be affirmed on appeal and the defendant will be relegated to an evidentiary habeas corpus proceeding. (Id. at pp. 581-582.)
Harris, the probation officer, was an expert witness for the prosecution on the subject of gangs. He testified that Yuba County Sheriff reports identified the victim, Wong Lee, as a member of the Menace Boy Crip (or Crew) (MBC) gang. Defendant claims his counsel was ineffective in failing to object to this testimony because it was hearsay and prejudiced him by casting the victim as a rival gang member, thereby providing defendant with a motive to attack the victim.
To properly assess this claim, we need to briefly summarize Harriss testimony. Harris first testified that several Asian gangs operated in the area where the shooting occurred. He testified that two of the gangs, the MBC and the Hmong Nation Society (HNS), were rivals.
Harris testified that he supervised defendant while he was on probation and discovered that defendant was an active gang member at that time; probation searches and crime reports compelled this conclusion. Harris testified that the tattoos on defendants body revealed that he was an HNS member. The defense attorney did not object to this testimony.
The prosecutor asked Harris whether he had similar information about the victim, Wong Lee. Harris replied that he had seen reports from the Yuba County Sheriffs Department indicating that Lee had revealed to officers that he was an MBC member. The defense attorney did not object to this hearsay testimony; this is the conduct claimed to be ineffective representation.
Harriss testimony revealed that the defendant and the victim were, at least at one time, members of rival gangs. The record shows, however, that defense counsel may have had a rational tactical purpose in not objecting to the hearsay testimony from Harris regarding Wong Lees (the victims) gang involvement.
First, at trial defendant faced a gang enhancement allegation that he committed the charged offenses on behalf of the HNS gang with the specific intent to promote criminal conduct by gang members. ( § 186.22, subd. (b)(1).) Although the People at the close of evidence dismissed this enhancement allegation for insufficient proof, they had submitted evidence at trial to prove it. Also, there was strong evidence that defendant was a gang member because of his tattoos and the gang paraphernalia found during probation searches. Given this backdrop, it is unlikely that defense counsel thought he could conceal gang involvement or defendants past gang activities from the jury. It is reasonable, therefore, that defense counsel allowed the prosecutor to introduce evidence of defendants gang connection because hiding or denying it would have been futile or would have impaired defendants credibility even more.
Second, given the gang enhancement allegation and the strong evidence of defendants past gang affiliation, it was reasonable for defense counsel, as part of his trial strategy, to try to prove the victims own gang participation. By showing that the victim, Wong Lee, was a gang member, the trial testimony of the passengers in his car, Meng Xiong, Theng X., and Tee X., arguably would be tainted. For example, if Lee was a gang member, then Meng Xiong, the prosecution witness who positively identified defendant as the driver of the car from which the shots were fired, affiliated himself with a gang member by driving around with Lee the night of the shooting. As the People note, defense counsels strategy may have been to "dirty up" Lee and his companions by portraying all of them as gang bangers who were not credible and who likely could have been assaulted by any number of other local gang members.
If Harriss testimony were the only evidence that the jury heard about gang involvement, that would be one thing. Failure to prevent evidence of a gang motive introduced erroneously can prejudice a case irreparably. (See People v. Cardenas (1982) 31 Cal.3d 897, 904-905, 184 Cal. Rptr. 165, 647 P.2d 569; Evid. Code, § 352.) This is not, however, the only evidence admitted at trial that revealed a possible gang connection to the shooting. Defendant faced a gang enhancement allegation that he committed the offenses on behalf of the HNS gang with a particular specific intent. Evidence of both the defendants gang involvement and the victims rival gang involvement was probative and relevant in that respect. (See People v. Champion (1995) 9 Cal.4th 879, 922-923, 891 P.2d 93; Evid. Code, § 352.) Before Harris testified, the jury heard admissible testimony, elicited from both the prosecutor and the defense counsel, pertaining to the gang involvement of both the defendant and the victim.
Prior to Harriss testimony, the three passengers in Wong Lees car testified about Lees gang involvement. The day before Harris testified, the prosecutor asked passenger Meng Xiong whether Lee was in a gang. Xiong responded that Lee "kicked it" with the MBC. In cross-examining Xiong, defense counsel confirmed Lees membership, and asked Xiong whether he himself was in a gang. With this witness, the second one to take the stand in the trial, both the prosecutor and defense counsel established Wong Lees MBC affiliation. The prosecutor also asked the other two passengers in Lees car about Lees gang affiliation. Defense counsel, too, asked one of the passengers about Lees gang involvement. While neither of these passengers admitted to knowing about Lees gang involvement, we are persuaded that defense counsel strategically proved that involvement by questioning witnesses about it.
After Harris testified, defendant himself testified that he knew that Wong Lee was or had been an MBC member. Even if Wong Lees friends were not sure whether Lee was an MBC member, or if the Yuba County Sheriffs Department suspected as much, it is most damaging to the defense case that the defendant knew. If the defendant knew that Lee was a rival gang member, then he had a motive to kill him.
Both before and after Harriss hearsay testimony, substantial evidence was properly admitted that Wong Lee was an MBC member. A strategy that included trying to prove that Lee and Lees passengers, including Meng Xiong, the key prosecution witness, were gang members was reasonable in light of the circumstances of the case. Regardless of whether the prosecutor first introduced the gang element during trial, it is reasonable that defense counsel anticipated this element and incorporated it into his trial strategy due to the nature of the charges and his clients own past.
Thus, on the appellate record before us, the two-part ineffective assistance test is not met: defense counsels conduct was reasonable, and failing to object to Harriss challenged testimony did not give rise to a reasonable probability sufficient to undermine confidence in the outcome.
Defendant asserts that, had the prosecutor not initiated the line of questioning into Wong Lees gang affiliation with Meng Xiong, defense counsel would never have raised Lees affiliation through cross-examination. We do not find this argument plausible. Given the circumstances of the shooting and the gang enhancement, we find that defense counsel could have reasonably anticipated this element and incorporated it into his own trial strategy.
Finally, defendant notes that his counsel did object to a particular part of Harriss testimony. From this, defendant would have us infer that his counsel did not mean to have the gang element admitted at trial. We are not persuaded. The particular part of Harriss testimony at issue involved the prosecutor posing a hypothetical question to him about whether he could tell that a gang shooting had occurred based on certain circumstances; defense counsel objected on the ground that the hypothetical lacked foundation. The court initially sustained the objection. Defense counsel did not object based on Evidence Code section 352 that the hypothetical would be prejudicial, however. Therefore, in combination with the evidence of gang activity already properly admitted, the only reasonable inference is that the purpose for the objection was as stated: the prosecutor had laid an insufficient foundation for the hypothetical.
3.Sentencing Error
Defendant contends that he is entitled to 28 additional days of presentence custody credit. At sentencing, the judge awarded 239 days of presentence credit. Defendant did not raise this issue before the trial court.
The People urge us not to consider this contention because section 1237.1 provides that, "no appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court." Defendant neither objected in the trial court nor moved there to correct the record, so section 1237.1 could apply.
Several appellate decisions, however, have concluded that an appellate court may resolve the issue of presentence custody credits, notwithstanding section 1237.1, when it makes sense economically to do so; for example, when time credits are not the only issue on appeal and the factfinding involved is simply arithmetical or ministerial. (People v. Acosta (1996) 48 Cal.App.4th 411, 427; People v. Duran (1998) 67 Cal.App.4th 267, 270; People v. Sylvester (1997) 58 Cal.App.4th 1493, 1496, fn. 3; People v. Jones (2000) 82 Cal.App.4th 485, 493. The case before us presents little more than calculating the number of days that defendant was in jail. Defendant has presented two other substantial issues on appeal. Therefore, we shall consider the issue of presentence custody credit.
The record shows that defendant was arrested on October 15, 2001. He was released seven days later on October 21, 2001. Subsequently, defendant was arrested on November 26, 2001. He spent 260 days in jail until his sentencing on August 12, 2002. Thus, defendant was entitled to 267 days of presentence custody credits, 28 more than awarded by the trial court.
DISPOSITION
The judgment is modified to reflect an additional 28 days of presentence custody credit, resulting in 267 days of such credit. In all other respects, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification, and to send a copy of the amended abstract to the Department of Corrections.
We concur: RAYE, J., ROBIE, J. --------------- Notes: Undesignated section references are to the Penal Code unless otherwise noted.