Opinion
D067777
02-24-2017
THE PEOPLE, Plaintiff and Respondent, v. PHONG THANH HUYNH, Defendant and Appellant.
Law Offices of Charles M. Sevilla and Charles M. Sevilla, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD250551) APPEAL from a judgment of the Superior Court of San Diego County, Frederic L. Link, Judge. Reversed. Law Offices of Charles M. Sevilla and Charles M. Sevilla, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Phong Thanh Huynh of the first degree murder of Nghia Pham by means of discharging a firearm from a motor vehicle. (Pen. Code, §§ 187, subd. (a), 189.) The jury also found true a sentencing enhancement under section 12022.53, subdivision (d) that Huynh intentionally and personally discharged a firearm causing death to another person. The trial court sentenced Huynh to an indeterminate term of 50 years to life imprisonment.
Further statutory references are to the Penal Code unless otherwise stated.
Huynh appeals. He contends (1) the court erred by denying a continuance requested by the defense during trial to secure the attendance of an out-of-state witness; (2) the court erred by excluding evidence of certain witnesses' gang affiliations; (3) the prosecutor committed errors during witness examination and closing argument; and (4) the trial court erred by admitting certain testimony regarding motive. Huynh also requests that this court review the trial court's in camera assessment of peace officer personnel records for error. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).)
For reasons we will explain, we conclude Huynh's contentions have merit in part. We further conclude there is a reasonable probability Huynh would have obtained a more favorable result at trial absent the errors. We therefore reverse the judgment.
FACTS
For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional facts will be discussed where relevant in the following section. Because many of the relevant individuals share the same last names, we will refer to them using their full names where necessary to avoid confusion.
On February 5, 2000, the night of the Vietnamese New Year, two groups of friends were playing pool at the Luc Huyen Cam coffee shop and pool hall in San Diego. Pham, who was with a group including Huy Lai, Thuy Nguyen, and Tien Thanh Nguyen, accidentally bumped an individual from the other group with his pool cue once or twice. The bumped individual, Bao Huynh, became angry and confronted Thuy Nguyen. Thuy Nguyen responded by punching Bao Huynh, and a fight between the groups ensued. Bao Huynh was hit in the head with a pool cue and hurt "pretty bad." Bao Huynh's brother Tai Huynh, who was at the Luc Huyen Cam as well, took him to a hospital for treatment. Another member of Bao Huynh's group, Calvin An Quac Le, suffered an injury to his hand. (At trial, Le denied suffering any injury during the fight and did not specifically recall fighting at the Luc Huyen Cam.)
Lai and Thuy Nguyen were best friends. Lai was addicted to methamphetamine at the time, and he was subsequently convicted of two felonies. At trial, he said "I'm not all there no more." Thuy Nguyen was also abusing methamphetamine.
Thuy Nguyen testified at trial that Phong Huynh was at the Luc Huyen Cam coffee shop playing video games at the time of the fight. Other witnesses, including Lai and Phong Huynh himself, denied he was there. Phong Huynh was good friends with Bao and Tai Huynh, and some people remembered Phong Huynh saying they were cousins. Phong Huynh was also friends with Le. Le used methamphetamine and crack cocaine at the time of the fight. He was convicted of two or three felonies in the years afterward.
A few days later, Pham and his group (including Thuy Nguyen, Tien Thanh Nguyen, and potentially Lai) arrived in Tien Thanh Nguyen's Mercedes at a different coffee shop near the Luc Huyen Cam. Bao and Tai Huynh, Phong Huynh, and Long Tran walked out of the coffee shop and confronted Pham's group. The group came close to the Mercedes, and Long Tran began kicking the car. Thuy Nguyen and Tien Thanh Nguyen grabbed machetes from under their seats and chased the group away.
A week after the initial fight, Pham, Tien Thanh Nguyen, Lai, and Lai's girlfriend were talking and playing pool at the Luc Huyen Cam again. Pham and Lai's girlfriend were good friends. Around midnight, Lai asked Pham to escort his girlfriend home to the Mira Mesa area of San Diego. She had a curfew, and Lai did not want to leave his pool game. Lai's girlfriend drove a car Lai used, a white Honda Accord, and Pham accompanied her in the passenger seat. When they arrived at Lai's girlfriend's house, she went inside. Pham got out of the car and took the driver's seat.
The name of Lai's girlfriend at the time was Tien Kieu Nguyen. Because she shares the same first and last name as Tien Thanh Nguyen, Pham's male friend, we will refer to her as Lai's girlfriend in this opinion. We intend no disrespect.
Phong Huynh and a friend and classmate, Quan Nguyen, were parked on the street outside Lai's girlfriend's house. They had been at a party earlier in the evening at an apartment owned by Phong Huynh's family. Bao and Tai Huynh and Long Tran were at the party as well. After about 15 minutes at the party, Phong Huynh approached Quan Nguyen and asked if he could drive him to watch street racing in Mira Mesa. Quan Nguyen agreed, and they drove to Mira Mesa in Quan Nguyen's Toyota MR2. They did not find any races. Phong Huynh then asked Quan Nguyen to drive them to Lai's girlfriend's house. Quan Nguyen knew Lai's girlfriend because his friend had dated her older sister.
When Quan Nguyen and Phong Huynh arrived at Lai's girlfriend's house, they parked on the street directly adjacent to her driveway. Quan Nguyen noticed a green Honda Accord pull behind his car and park as well. Quan Nguyen did not recognize the car. Quan Nguyen did not ask Phong Huynh why they were waiting there or why the green Honda Accord had parked behind them. After a short while, Phong Huynh and Quan Nguyen saw Lai's white Honda Accord arrive and park in the driveway. They watched Lai's girlfriend get out of the car and go inside.
Lai's car backed out of the driveway, and Phong Huynh told Quan Nguyen to follow it. The car merged onto the freeway, and Quan Nguyen continued to follow. Quan Nguyen saw the green Honda Accord driving behind them.
On the freeway, Phong Huynh told Quan Nguyen to "drive up next to that car." Phong Huynh then rolled down his window, pulled out a gun, and fired several times at Lai's car. Quan Nguyen was surprised—he did not know that Phong Huynh was armed or that he wanted to harm anyone—and he instinctively slowed his car down. Phong Huynh told him to drive faster. They passed Lai's car, which slowly veered to the right. Phong Huynh then fired several more shots backwards towards Lai's car. Phong Huynh fired approximately six shots in total.
Phong Huynh told Quan Nguyen to exit the freeway and drive to the latter's apartment, where he lived with his parents. He also told Quan Nguyen not to tell anyone what had happened. Quan Nguyen was scared, but he drove to his apartment. He saw that the green Honda Accord was still following them.
When Phong Huynh and Quan Nguyen arrived at the apartment, the green Honda Accord parked behind them. Phong Huynh walked toward that car, and Long Tran got out. Long Tran asked Quan Nguyen if he could use the phone in Quan Nguyen's apartment. Quan Nguyen agreed, and they went up to the apartment. After Long Tran used the phone, he left. Quan Nguyen and Long Tran did not discuss the shooting.
Long Tran had two felony convictions for burglary in 2007 and 2008. At trial, Long Tran denied any knowledge of the shooting, including being present at Lai's girlfriend's house, witnessing the shooting, following Quan Nguyen to his apartment, or owning a green Honda Accord. As we will discuss, Phong Huynh also denied being with Quan Nguyen that evening or having any involvement in Pham's shooting. The facts surrounding the shooting in the preceding six paragraphs are taken from Quan Nguyen's trial testimony. When he was interviewed after the shooting, however, Quan Nguyen denied any knowledge. He first told investigators the story of the shooting when he was interviewed in 2012. He said he came forward because he felt guilty about driving Phong Huynh on the night of the shooting. Quan Nguyen testified under a grant of immunity that prohibited prosecutors from using his trial testimony against him.
On the freeway, a passing motorist saw Lai's white Honda Accord stopped at the center divider. Pham was in the driver's seat, alive but largely unresponsive. He had suffered a single gunshot wound to his head. Pham was taken to a hospital but died of the wound. Based on the characteristics of the wound, and assuming Pham was facing forward when he was shot, a forensic pathologist testified that Pham's wound was consistent with a bullet having been fired from outside the car, on the driver's side and slightly ahead, and travelling through a driver's side window before striking Pham.
The front driver's side window of the white Honda Accord was shattered, and there were bullet holes in the driver's side front door, the windshield, and the rear driver's side window. A bullet had also grazed the hood of the car, leaving a crease. A forensic expert testified that this damage was consistent with gunshots fired from the left side and slightly ahead of the car. Police investigators recovered seven .380-caliber Spear brand shell casings on the freeway. A forensic expert determined they had all been fired from the same semiautomatic firearm. The bullet recovered from Pham's body was consistent in construction with a Spear brand .380-caliber bullet.
A few weeks after the shooting, Phong Huynh met Voung Nguyen through mutual friends. Voung Nguyen had recently moved to San Diego. They hung out regularly in the company of other friends, including Bao and Tai Huynh, and Le, in coffee shops and at the apartment of another friend, Hieu Do. Voung Nguyen and sometimes Le lived in Hieu Do's apartment.
A couple days after they met, Voung Nguyen and Phong Huynh discussed shootings. Phong Huynh told Voung Nguyen, over the course of several conversations, about the Pham shooting. Voung Nguyen's impression was that Phong Huynh was bragging about shooting Pham. Phong Huynh said that he and Quan Nguyen followed Lai's white Honda Accord from a coffee shop to Mira Mesa and that he shot Pham as Pham drove back to the coffee shop. Phong Huynh said the first or second shot hit Pham in the head. Phong Huynh told Voung Nguyen the motive for the shooting was retaliation for the earlier fight at the Luc Huyen Cam where Bao Huynh had been injured. Phong Huynh wanted to shoot Lai, but Pham ended up accompanying Lai's girlfriend home, so he shot Pham instead. Voung Nguyen said Le was present every time Phong Huynh discussed the shooting. (At trial, Le denied hearing Phong Huynh confess to the shooting.)
In his testimony, Voung Nguyen named a different coffee shop, not the Luc Huyen Cam.
Voung Nguyen's nickname is "Ak," which is Vietnamese for "evil." Sometime after he moved to San Diego, he began abusing drugs. While on drugs, he acted erratically. Le took him to a psychiatric hospital after a particularly bad episode. Voung Nguyen had a 2001 burglary conviction and a 2006 grand theft conviction. When he was in police custody in 2001, he told investigators about Phong Huynh's confession. Afterwards, he refused to talk to police about the case, but then he changed his mind again and agreed to testify. At the time of trial, Voung Nguyen was in a witness protection program and received money for rent, food, and other living expenses.
Sometime after the shooting, Phong Huynh, Voung Nguyen, and another friend, Quy Tran, were at a cafe. Quy Tran heard the other two men talking about "Nghia" being shot. Quy Tran said he had a relative named "Nghia." Voung Nguyen looked surprised, but Phong Huynh responded, "Wrong Nghia." Quy Tran asked what they had been talking about, and Phong Huynh said he would tell him later.
A week later, Phong Huynh and Quy Tran encountered Pham's friends Lai and Tien Thanh Nguyen at a restaurant. (At trial, Lai said he had never seen Phong Huynh before this encounter.) Phong Huynh became angry and walked toward them. He told Tien Thanh Nguyen, "I give you five minutes to get out of here or else you [are] going to be next." He also said, "One go down, one more to go." Lai told police that Huynh accused Tien Thanh Nguyen of being part of the earlier confrontation involving machetes and said, "Whoever chased me, I have to kill." (At trial, Lai denied making this statement to police.)
Quy Tran told everyone he did not want any trouble, since the restaurant belonged to his godmother. Quy Tran reached inside his jacket as if he had a gun, though he was unarmed. Lai and Tien Thanh Nguyen got their food and left. When Quy Tran sat back down, Phong Huynh told him that they had beat up his cousin, which Quy Tran understood to mean Bao or Tai Hyunh. According to Quy Tran, Phong Hyunh said, "[A] couple of weeks ago, they beat up my cousin and I took one of them [] down and I'm going to get one more."
Quy Tran had been in prison and suffered from a severe mental illness with symptoms including auditory hallucinations. He was also a paid informant for the San Diego Police Department and later the Federal Bureau of Investigation, though at trial he denied being an informant for the former. Quy Tran told police he thought either Phong Huynh, Bao or Tai Huynh, or Voung Nguyen had killed Pham, with Voung Nguyen being the "strong suspect."
Phong Huynh repeated these threats several months later, when Lai and his girlfriend encountered Phong Huynh at a coffee shop. Phong Huynh appeared angry and aggressive. As they walked by him, Phong Huynh told Lai, "One down, one to go." Lai's girlfriend said they should go, and Phong Huynh responded, "Just listen to your girl and leave." Lai's girlfriend was scared by what Phong Huynh said.
This quotation is Lai's girlfriend's translation of Phong Huynh's words from Vietnamese into English. At trial, Lai's girlfriend repeated what Huynh said in Vietnamese. A court interpreter translated the phrase as "Drop one, survive one."
At trial, Lai's girlfriend recalled this confrontation; Lai did not testify about it. Lai's girlfriend did not mention this confrontation in her initial interviews with police investigators. She first mentioned the confrontation in 2014, a few weeks before Huynh's preliminary hearing.
At trial, as we have noted, Phong Huynh testified in his own defense. He denied having close relationships with Bao and Tai Huynh, Quan Nguyen, or Voung Nguyen. He denied being at the Luc Huyen Cam during the fight between Bao Huynh's group and Pham's group, though he testified that Bao Huynh told him about it later. Similarly, he denied being present during the later machete incident; he said Long Tran told him about it afterwards.
Phong Huynh recalled the restaurant confrontation, when he was eating with Quy Tran, but he contended it occurred before Pham was killed. Phong Huynh said Pham, Lai, and Tien Thanh Nguyen entered the restaurant, and he asked them why they had fought Bao Huynh. (Phong Huynh testified that he recognized them based on the colors of the clothes they wore.) Quy Tran told them to leave or he would shoot them. Phong Huynh denied making any threatening statements during the confrontation.
Phong Huynh denied taking part in the shooting or telling Voung Nguyen he was responsible. He said he never asked Quan Nguyen to drive him anywhere. After initially denying he was familiar with a .380-caliber firearm, Phong Nguyen acknowledged he had fired one a long time ago and would recognize one if he saw it again.
Phong Huynh denied involvement with drugs. Around the time of the shooting, Phong Huynh said he was studying electrical engineering at ITT Tech. After graduating, he could not find work and instead attended beauty college. He moved to Michigan in 2001 and lived in Montana at the time of trial. He owned three nail salons in Arizona and one in Montana.
DISCUSSION
I
A
Huynh contends the court erred when it denied his motion for a continuance to secure the attendance of Tien Thanh Nguyen, who lived in North Carolina at the time of trial. In anticipation of calling Nguyen as a witness, the prosecution requested that the trial court certify that Nguyen was a "necessary and material witness" at trial. The court signed the certificate in September 2014. Nguyen was interviewed twice by law enforcement, and he agreed to voluntarily travel to San Diego to testify. It appears Nguyen also signed a written agreement to waive process and appear at trial, but the agreement is not part of the record.
The prosecution notified Huynh's counsel approximately three weeks before trial that it had decided not to call Nguyen. A week before trial, Huynh's counsel contacted Nguyen to coordinate his attendance. Huynh's counsel spoke to Nguyen by phone, identified the best days for Nguyen to travel, and obtained contact information to facilitate future travel arrangements.
During trial, Huynh's counsel attempted to contact Nguyen again but could not reach him. Nguyen then called Huynh's counsel's office and said he "wasn't comfortable" traveling to San Diego and would not agree to testify. Huynh's counsel attempted to contact him by phone and email, but he did not respond. Huynh's counsel began the process of hiring a private investigator and engaging local counsel in North Carolina to compel Nguyen's attendance at trial. Huynh requested another certificate from the court stating that Nguyen was a "material witness." The trial court issued the certificate as requested.
Three days after Nguyen said he would not appear, an associate in Huynh's counsel's office traveled to North Carolina, retained local counsel, and attempted to contact Nguyen. The next day, the associate spoke with Nguyen but could not convince him to come to San Diego voluntarily. The associate therefore served Nguyen with a subpoena drafted by local counsel directing him to appear at a North Carolina court hearing four days later (after a three-day weekend). Nguyen did not appear at the hearing and did not respond to a further attempt to contact him.
The same day as the North Carolina hearing, Huynh filed a written motion for continuance. The motion was supported by declarations from Huynh's counsel and his associate describing their efforts to secure Nguyen's attendance at trial, as well as transcripts of Nguyen's interviews with police. In the interviews, Nguyen corroborated several aspects of Huynh's testimony. For example, Nguyen said Huynh never threatened him and never said "one down, one to go" in his presence. This testimony contradicted the testimony of Quy Tran, who said Nguyen was present when Huynh made those statements. Nguyen also agreed with Huynh that the restaurant confrontation took place before Pham was killed and Huynh made no threats at that time. This testimony contradicted Quy Tran as well as statements Huy Lai made to police. Tien Thanh Nguyen also did not recall seeing Huynh at the initial fight at the Luc Huyen Cam, contrary to Thuy Nguyen's recollection. Nguyen said he, not Pham, was the person who accidentally hit someone else with his pool cue, prompting the fight, again contradicting Thuy Nguyen and Lai. Finally, Nguyen had information relevant to Lai's gang affiliations, including that Lai always wore a "V-Boys" gang hat, that Pham wore Lai's V-Boys hat the night of the murder, and that Lai was the target of rival gang members.
The trial court excluded evidence relating to gang affiliations, a decision which Huynh also contends was error. We will discuss this issue in the next part.
The court held a hearing on Huynh's motion the day it was filed. Huynh's counsel informed the court that he expected the North Carolina court to issue an arrest warrant for Tien Thanh Nguyen that day. The district attorney opposed Huynh's motion, arguing that Huynh had not been diligent in securing Nguyen's attendance because he did not attempt to subpoena Nguyen before trial. After hearing argument, the court agreed to recess after hearing the testimony available that day. At the end of the day's testimony, Huynh's counsel confirmed that an arrest warrant had been issued for Nguyen. The trial court refused to grant any further continuance, however, and stated, "This matter will be -- we'll start tomorrow morning at 8:30 to work out any problems. And this matter will -- with the jury will start at 9:00. If the witness is here, we'll go forward with the witness. If the witness is not here, we will go forward with your case[.]" Huynh's counsel continued to object.
The next day, Huynh testified, the defense rested, the prosecution presented its rebuttal, and the court gave the jury its instructions. After those instructions, but before closing arguments, the authorities in North Carolina contacted the district attorney's office and said they were ready to arrest Nguyen. Huynh's counsel requested that Nguyen be brought into custody and produced for the trial. The trial court denied this request: "Your comments are appreciated and that's denied. Your case is done. The evidence is done. It will not be reopened. [¶] Even if he's arrested, that's back in North Carolina and he still has rights to go through whether North Carolina is going to move him out here or not. And as I previously said, there was plenty of time to have that done before the trial. Tell them don't arrest him, evidence is done. That's all."
B
A showing of good cause is required to obtain a continuance in a criminal case. (§ 1050, subd. (e).) "To establish good cause for a continuance, defendant had the burden of showing that he had exercised due diligence to secure the witness's attendance, that the witness's expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven." (People v. Howard (1992) 1 Cal.4th 1132, 1171.) "The granting or denial of a motion for a continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion. In the lack of a showing of an abuse of discretion or of prejudice to the defendant, a denial of his motion for a continuance cannot result in a reversal of a judgment of conviction." (People v. Laursen (1972) 8 Cal.3d 192, 204; see People v. Samayoa (1997) 15 Cal.4th 795, 840.) Although the court's denial of a continuance during trial is " 'seldom successfully attacked' " (People v. Beeler (1995) 9 Cal.4th 953, 1003), "[t]he absence of a material witness for the defense, under appropriate conditions, has long been recognized as a ground for continuance" (Jennings v. Superior Court (1967) 66 Cal.2d 867, 876).
In the trial court, Huynh made a strong showing that the substance of Nguyen's testimony was material, not cumulative, and available only through him. Nguyen was a witness to several of the incidents tying Huynh to Pham's murder, and Nguyen's testimony supported Huynh's version of events as to each. Importantly, unlike the other defense witnesses (Bao and Tai Huynh and Long Tran), Nguyen was not Huynh's friend and was instead the alleged target of Huynh's hostilities. The prosecution itself represented, in connection with its efforts to call Nguyen, that Nguyen was a "necessary and material witness" in Huynh's trial. At the prosecution's request, the trial court agreed and certified that Nguyen was such a witness. The Attorney General's arguments regarding the immateriality of Nguyen's testimony are therefore unpersuasive in light of the prosecution's conduct below. (See People v. Mendez (1991) 234 Cal.App.3d 1773, 1783.) Contrary to the Attorney General's contention, the fact that Nguyen could not undermine all of the evidence against Huynh, or that Nguyen's testimony would not be exclusively positive for Huynh, did not make his testimony immaterial.
The Attorney General argues that certain aspects of Nguyen's potential testimony should not be considered on appeal because Huynh did not specifically raise them in his motion or in argument before the trial court. (See People v. Verdugo (2010) 50 Cal.4th 263, 309.) We disagree. Huynh attached the complete transcripts of Nguyen's two police interviews to his motion for a continuance, and the trial court stated it had previously read those transcripts. Because the transcripts reflect the potential testimony at issue, we conclude Huynh adequately raised these aspects so as to avoid forfeiture. And, in any event, even without those particular aspects challenged by the Attorney General, Huynh still made a strong showing that Nguyen's testimony was material given the specific testimony highlighted in Huynh's motion and argument and the prosecution's prior admissions.
We also conclude Huynh made a strong showing of diligence. In his conversations with law enforcement, Nguyen agreed both orally and in writing to travel voluntarily to San Diego and testify at trial. The prosecution notified Huynh's counsel that they had decided not to call Nguyen as a witness approximately three weeks before trial was set to begin. Shortly before trial, Huynh's counsel contacted Nguyen, who expressed no reservations about testifying. When Huynh's counsel contacted Nguyen again, and he expressed his unwillingness to testify, an associate in Huynh's counsel's office flew to North Carolina, engaged local counsel, served Nguyen with a subpoena for a hearing on Huynh's request that he appear at trial, and had an arrest warrant issued when Nguyen failed to appear.
Under the circumstances of this case, Huynh was diligent in securing Nguyen's attendance at trial. The prosecution notified Huynh that they would not be calling Nguyen only a few weeks before trial. At that point, Nguyen had agreed orally and in writing to attend trial. Huynh's counsel confirmed Nguyen's willingness to attend trial, and that situation continued until Nguyen informed Huynh's counsel that he would not appear. At that point, Huynh's counsel took every available measure to compel his attendance. Given the prosecution's change of position, Nguyen's representations, and the timing of these events relative to trial, Huynh's counsel acted diligently under the circumstances.
The Attorney General points to authority holding that a witness's absence, when he or she is not under subpoena, generally does not constitute good cause for a continuance. (See Jensen v. Superior Court (2008) 160 Cal.App.4th 266, 271 (Jensen).) In Jensen, a defendant challenged a trial court order granting a prosecution request to continue trial under section 1382 based on the absence of a police officer whose testimony was material. (Jensen, supra, 160 Cal.App.4th at p. 270.) The Jensen court denied relief, finding that the prosecution had been diligent in securing the police officer's attendance and was therefore entitled to a continuance. (Id. at p. 274.) The prosecution properly subpoenaed the police officer under section 1328, and the police officer's absence was caused by his department's failure to deliver the subpoena to the officer as required by that statute. (Jensen, supra, 160 Cal.App.4th at p. 272.) Jensen concluded, "When a witness was served with a subpoena but fails to appear as commanded, there is usually good cause for a continuance. . . . When a witness is not under a subpoena, his or her absence generally does not constitute good cause for the continuance of a trial." (Id. at p. 271.)
Section 1328 provides for service of a criminal subpoena on a peace officer either "personally or by delivering two copies to his or her immediate superior or agent designated by his or her immediate superior to receive the service . . . ." (§ 1328, subd. (c).) The peace officer's superior or his or her agent are responsible for delivering a copy of the subpoena to the peace officer as soon as possible. (Ibid.)
The Jensen court derived its general rule from a series of cases generally involving the prosecution's failure to subpoena police officers for trial. (See Jensen, supra, 160 Cal.App.4th at p. 271, citing Baustert v. Superior Court (2005) 129 Cal.App.4th 1269, 1277-1279; Caputo v. Municipal Court (1960) 184 Cal.App.2d 412, 419; and Cunningham v. Municipal Court (1976) 62 Cal.App.3d 153.) The only case cited by Jensen involving unsubpoenaed witnesses other than police officers was Pickett v. Municipal Court (1970) 12 Cal.App.3d 1158 (Pickett). (Jensen, supra, 160 Cal.App.4th at p. 271.) In Pickett, however, the prosecution's lack of diligence went far beyond its failure to properly subpoena witnesses. The prosecution did not make any effort to locate its witnesses, did not inquire whether witnesses were available for the scheduled trial date, and requested a continuance based on speculation that the trial date would be inconvenient for them. (Pickett, at p. 1162.)
Given these underpinnings, we are unpersuaded that Jensen's general rule extends to the circumstances here. The subpoenas at issue in the authorities cited by Jensen were directed to police officers and therefore not burdensome to obtain or serve under section 1328. Here, by contrast, subpoenaing an out-of-state witness such as Nguyen was an expensive and time-consuming process. When Huynh's counsel was informed three weeks prior to trial that the prosecution would not call Nguyen, Huynh's counsel acted reasonably by confirming Nguyen's prior oral and written commitments to appear. When Nguyen informed Huynh's counsel he had changed his mind, Huynh's counsel took extraordinary measures to secure his attendance prior to the end of trial. These measures ultimately resulted in a North Carolina arrest warrant for Nguyen, which the North Carolina authorities were ready to execute. Even though Huynh did not subpoena Nguyen prior to trial, his counsel acted diligently to secure his attendance.
The other authorities cited by the Attorney General are similarly inapplicable under the circumstances of this case. In People v. Riggs (2008) 44 Cal.4th 248, 294-296 (Riggs), the Supreme Court considered a trial court's refusal to grant further continuances—after having already granted an 11-day continuance and a variety of shorter continuances—in order to allow a self-represented defendant to secure the attendance of several out-of-state witnesses. The Supreme Court held "the trial court could have properly found that the inability to have these witnesses available was caused by defendant's lack of diligence, such as repeatedly attempting service on out-of-state witnesses by mail, despite being advised that such procedures were not proper, and not by factors beyond defendant's control." (Id. at p. 296.) Defense counsel here showed far more diligence than the defendant in Riggs, securing Nguyen's voluntary agreement to testify and, when he would not, invoking proper legal process in North Carolina. People v. Lynch (1971) 14 Cal.App.3d 602 (Lynch) is also distinguishable. In Lynch, the Court of Appeal affirmed a trial court's refusal to grant a continuance where a witness had failed to show up for trial several times and defense counsel did not subpoena him. (Id. at p. 607.) Whereas defense counsel in Lynch seemed content to rely on the witness's representations even after they were proven unreliable, Huynh's counsel immediately invoked appropriate legal process to compel Nguyen to attend when he refused to voluntarily come to San Diego.
People v. Buckey (1972) 23 Cal.App.3d 740 is instructive. In that case, a defendant was charged with, among other things, unlawful possession of amphetamines. (Id. at p. 741.) The defendant contended that the drug in question had been lawfully prescribed. (Id. at p. 743.) After the trial court sustained objections to defendant's own testimony on this point, his counsel proposed to call his doctor as a witness. (Ibid.) Defense counsel contacted the doctor, who agreed to testify, but he was not available until the next court day (a Monday). (Ibid.) The trial court refused to grant a continuance to allow the doctor to testify. (Ibid.) The appellate court concluded it was an abuse of the trial court's discretion to deny the continuance: "At bench, the witness was clearly identified; the evidence to be offered by means of his testimony was not merely material, it was critical, and highly necessary, especially in view of the court's insistence on excluding appellant's own testimony on his sole defense; and the diligence shown by counsel in contacting [the doctor] that very evening, and promising his appearance for the next court day was all that could be reasonably desired." (Id. at p. 744.)
Here, Huynh's counsel relied on Nguyen's voluntary agreement to appear. And, when Nguyen broke that agreement, Huynh invoked the applicable legal processes to compel his attendance. In light of Nguyen's prior agreement to testify, it is likely his arrest in North Carolina would have prompted him to travel to San Diego and appear at trial. The trial court's refusal to grant a short continuance to allow for that possibility—after Huynh's counsel had served Nguyen with a subpoena, set a hearing in North Carolina, and obtained a warrant for Nguyen's arrest—did not accomplish substantial justice given the importance of Nguyen's testimony as documented in his police interviews and Huynh's constitutional right to present his defense. Although the trial court was understandably concerned with the effect the delay would have had on the jury (two jurors had already been excused, leaving only one alternate), the Attorney General has not pointed to anything in the record that would support the conclusion that a short continuance would have resulted in a mistrial. Under these circumstances, the trial court abused its discretion in denying Huynh's requested continuance.
Given our conclusion that the trial court erred, we need not reach Huynh's alternative argument that his counsel was ineffective because he did not diligently seek Nguyen's attendance at trial.
C
Huynh claims the trial court's failure to grant a continuance rises to a constitutional violation, depriving him of his Eighth Amendment right to counsel. (See White v. Ragen (1945) 324 U.S. 760, 764; Hughes v. Superior Court (1980) 106 Cal.App.3d 1, 4.) We disagree. A trial court's failure to grant a continuance impacts a defendant's right to counsel where it forces an unprepared attorney to proceed to trial. The record here shows Huynh's counsel was amply prepared. He effectively cross-examined the prosecution's witnesses, presented witnesses in Huynh's defense, and cogently argued Huynh's theory of the case to the jury. Under these circumstances, Huynh has not shown he was deprived of his constitutional right to counsel.
We therefore consider the prejudicial effect of this error under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), i.e., whether it is reasonably probable Huynh would have obtained a more favorable result absent the error. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1549.) "The Supreme Court has emphasized 'that a "probability" in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.' " (People v. Soojian (2010) 190 Cal.App.4th 491, 519 (Soojian).) Under this standard, "a hung jury is considered a more favorable result than a guilty verdict." (Id. at p. 520.)
The trial court's failure to grant a brief continuance to allow Tien Thanh Nguyen to attend trial was prejudicial. Our review of the record shows that the evidence against Huynh was not overwhelming. While there was ample evidence of animosity between Huynh and his intended victim Lai stemming from the fight at the Luc Huyen Cam, the most direct evidence of Huynh's involvement in Pham's shooting came from Quan Nguyen and Voung Nguyen. But neither of these witnesses was particularly credible. Quan Nguyen had denied any knowledge of the shootings when questioned by police and first told investigators of Huynh's involvement more than a decade after the fact. Quan Nguyen's testimony regarding the events was in parts implausible, given the roundabout path he and Huynh allegedly took to Lai's girlfriend's house and their serendipitous encounter with Lai's car while waiting there. The circumstances of Quan Nguyen's interrogation by investigators also call into question his veracity, since at least one investigator acknowledged lying to Quan Nguyen regarding the evidence against him (e.g., that an eyewitness had seen Quan Nguyen following Pham on the night of the shooting). Quan Nguyen also received immunity for his statements and, at least at the time of trial, had not been prosecuted for his alleged role in the Pham shooting. Voung Nguyen, for his part, had a lengthy history of drug use and a criminal record. At the time of trial, he was enjoying the benefits of a witness protection program. At one point, Voung Nguyen had also denied any knowledge of the shooting and claimed he made up his story of Huynh's confession. Importantly, both Quan Nguyen and Voung Nguyen's testimony was directly contradicted by Long Tran and Le, respectively, who denied witnessing or hearing Huynh confess to the shooting.
The physical evidence, while consistent with the statements of Quan Nguyen and Voung Nguyen, was not particularly distinctive and did not independently tie Huynh to Pham's murder. Huynh's own testimony, the length of time since Pham's murder, various inconsistencies in the prosecution witnesses' statements, and numerous credibility issues further complicated the prosecution's case. After the preliminary hearing, the trial court succinctly remarked on these credibility issues: "All of the witnesses in this case smell." The jury deliberated over four days for approximately 12 hours, showing that the case was close. (See In re Martin (1987) 44 Cal.3d 1, 51; People v. Cardenas (1982) 31 Cal.3d 897, 907.)
Given the state of the evidence, the jury likely viewed the pre- and post-shooting incidents tying Huynh to the Pham's murder—the machete incident, Huynh's threats at Quy Tran's family's restaurant, and Huynh's threats against Lai and his girlfriend—as important corroboration of Quan Nguyen and Voung Nguyen's testimony. The machete incident and Huynh's threats against Lai and his girlfriend were already the subject of conflicting testimony, even setting aside Phong Huynh's own denials. Bao Huynh and Long Tran did not recall Phong Huynh being present when their group was confronted by Pham's machete-wielding group. Lai's girlfriend did not tell investigators about Phong Huynh's threats until 2014, more than a decade after the fact, and Lai did not testify about the incident at trial. Even the restaurant incident was in dispute at trial: Lai testified that Phong Huynh made a threat against Tien Thanh Nguyen, but he denied being threatened himself, as Quy Tran had asserted.
The trial court's failure to grant a continuance prevented Phong Huynh from presenting testimony from Tien Thanh Nguyen that would have further undermined the prosecution's version of these pre- and post-shooting events. Given Nguyen's prior agreement to appear, it is likely his arrest in North Carolina would have led to his appearance at trial. And, as we have explained, Nguyen would likely have testified that Phong Huynh did not threaten him during the restaurant confrontation and that the confrontation took place before Pham was murdered in any event. This testimony was consistent with Phong Huynh's and would have bolstered his credibility. Nguyen would also likely have testified that Phong Huynh was not at the initial fight at the Luc Huyen Cam, further supporting Phong Huynh's version of events and undermining the prosecution's witnesses. Because Nguyen was not Phong Huynh's friend, and was instead part of the group opposing him, his testimony supporting Phong Huynh would likely have been given significant weight by the jury.
The Attorney General points out that Nguyen's likely testimony would not have been entirely favorable to Phong Huynh. Nguyen believed Phong Huynh was involved in the machete incident and confirmed Quy Tran's threats at the restaurant, among other things. Nguyen also believed Bao or Tai Huynh, Long Tran, or Phong Huynh killed Pham. Although this testimony would have added to the evidence against Phong Huynh at trial, it largely concerns incidents that were already the subject of conflicting testimony. As we explain, the reason why the absence of Nguyen's testimony was prejudicial was because it provided testimony supporting Phong Huynh's version of events that was unavailable elsewhere. Nguyen's additional testimony against Huynh was cumulative and would not have materially enhanced the prosecution's presentation.
Given the substantial weaknesses in the prosecution's case, the credibility issues surrounding the prosecution's two key witnesses (Quan Nguyen and Voung Nguyen), the conflicting testimony at trial regarding key events, the length of the jury's deliberations, the substance of Tien Thanh Nguyen's likely testimony, and the prosecution's own admission that he was a "necessary and material witness," there is a reasonable probability, i.e., a reasonable chance, that Phong Huynh would have achieved a more favorable result if the trial court had granted a brief continuance to allow Tien Thanh Nguyen to testify. (See Watson, supra, 46 Cal.2d at p. 836; Soojian, supra, 190 Cal.App.4th at p. 519.) Huynh's conviction must therefore be reversed.
II
A
Huynh further contends the court erred by excluding evidence of various prosecution witnesses' affiliations with criminal street gangs. At Huynh's preliminary hearing, multiple witnesses testified about the "V-Boys" gang and its relationship to this case. For example, a police detective testified that he believed the initial fight at the Luc Huyen Cam was related to the V-Boys. Huy Lai was identified as a member of the V-Boys by a police detective and his then-girlfriend. A police detective also identified Hieu Do as a member of the V-Boys and said his apartment, where Voung Nguyen stayed and Huynh allegedly confessed to the shooting, was a "crash pad" for gang members. Voung Nguyen and Le were affiliated with or members of the Asian Warriors gang in San Jose. By contrast, neither Huynh nor Long Tran were documented gang members.
At trial, Huynh sought to cross-examine prosecution witnesses regarding their gang affiliations to show the implausibility of Huynh's confession to killing Pham, a friend of at least one V-Boys member, to another individual associated with gangs, in a place frequented by V-Boys. The trial court excluded the any reference to gang affiliations as irrelevant. The court stated, "I have reviewed all the evidence in this case twice, once at the preliminary hearing and now I've gone over it again. I don't see in this case where there are any gang relevant issues. There are people who supposedly belong to gangs, are mixing with [] nongang members and vice versa. And I don't see any indication whatsoever that there's any relevance here as to somebody being a gang member. So my ruling will stand." The court reiterated its ruling during Lai's cross-examination.
Later, during Phong Huynh's testimony, his counsel sought to introduce testimony that Bao Huynh told Phong Huynh that V-Boys had beat him up at the Luc Huyen Cam and that Huy Lai and his group were wearing V-Boy colors when the confrontation at the restaurant (involving Quy Tran) occurred. The court again excluded the testimony. The court remarked that no other witness at trial had mentioned V-Boys. Huynh's counsel pointed out that the court had excluded any such evidence. The court again ruled that the V-Boys could not be mentioned.
The Attorney General claims Huynh forfeited any claim of error based Bao Huynh's statement to Phong Huynh by waiting until the defense case to raise it. The Attorney General cites Evidence Code section 354, but does not explain why that statute leads to a finding of forfeiture here. That statute requires that a party complaining of erroneous exclusion of evidence must show in the record that "[t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by other means[.]" (Evid. Code, § 354, subd. (a).) Huynh's counsel made such a record when the testifying witness (Huynh) was on the stand. The Attorney General has not shown Huynh forfeited his claim that this testimony was erroneously excluded.
B
"Except as provided by statute, all relevant evidence is admissible." (Evid. Code, § 351.) " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) "Cases have repeatedly held that it is proper to introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent." (People v. Funes (1994) 23 Cal.App.4th 1506, 1518; see People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) Evidence of gang affiliation may also show a relationship between a witness and a party, which is logically relevant to show bias. (People v. Ruiz (1998) 62 Cal.App.4th 234, 240; see United States v. Abel (1984) 469 U.S. 45, 49.) We review the trial court's exclusion of evidence for abuse of discretion. (People v. Harrison (2005) 35 Cal.4th 208, 230.)
We conclude the trial court abused its discretion in excluding evidence relating to the V-Boys, including that Lai was a member of the V-Boys, that Lai and his group were wearing V-Boy colors during the restaurant confrontation, and that Hieu Do's apartment was a V-Boy gathering place where Huynh would not have confessed to killing a friend of a gang member. This evidence was relevant. It tended to show that Pham associated with V-Boys, showing bias on the part of witnesses at trial who were also associated with or members of the V-Boys. This evidence also undermined Voung Nguyen's testimony that Huynh confessed to Pham's murder at Hieu Do's apartment. As Huynh's counsel argued to the trial court, "I stated at this trial as well that this was entirely related to gang activity. And that the gang activity had to do with the V Boys. And the probability of this -- of my client confessing -- confessing to [Voung Nguyen] in Hieu Do's place when Hieu Do is a V Boy that he shot [Pham] was so highly improbable as to be ridiculous."
The Attorney General argues that the evidence does not bear on Huynh's motive for killing Pham. However, even if it was not relevant to Huynh's motive, it was relevant to other disputed issues, as we have discussed. The Attorney General also argues that other evidence bearing on the relationships, biases, and credibility of Huynh, Pham, and other relevant individuals was introduced. We disagree that this circumstance renders the excluded evidence irrelevant. The gang affiliation evidence described above leads to a materially different understanding of the relationships between the relevant individuals and establishes a connection between Hieu Do's apartment (where Huynh's confession allegedly occurred) and Pham's group that was not discussed at trial. And, even if some evidence were duplicative, that would not make the evidence irrelevant.
At most, the evidence could arguably have been excluded as cumulative under Evidence Code section 352. Here, because the trial court did not explicitly or implicitly engage in the balancing required under that statute, and simply found the proffered evidence irrelevant, we may not affirm on the basis of that statute. (People v. O'Shell (2009) 172 Cal.App.4th 1296, 1309-1310.) And, in any event, based on our review of the record, the argument that the evidence should have been excluded under the statute as unduly cumulative is not persuasive.
C
Huynh contends the trial court's exclusion of evidence deprived him of his constitutional right to present evidence (Washington v. Texas (1967) 388 U.S. 14, 19) and to testify in his own defense (Rock v. Arkansas (1987) 483 U.S. 44, 55-56). Huynh therefore argues the federal constitutional standard of prejudice under Chapman v. California (1967) 386 U.S. 18 (Chapman) applies to the error at issue here. The Attorney General does not address the applicable standard of prejudice.
We conclude the Chapman standard does not apply. "Although the complete exclusion of evidence intended to establish an accused's defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right. [Citation.] Accordingly, such a ruling, if erroneous, is 'an error of law merely,' which is governed by the standard of review announced in [Watson, supra,] 46 Cal.2d 818, 836." (People v. Cunningham (2001) 25 Cal.4th 926, 999.) Our Supreme Court considered an analogous error in People v. Fudge (1994) 7 Cal.4th 1075, 1102 (Fudge). In Fudge, the defendant attempted to introduce evidence of conversations between inmate informants and police investigators (and among inmate informants themselves) to show that the informants had "falsified their accounts after being supplied with, or themselves obtaining, information about defendant's crime." (Ibid.) The trial court sustained hearsay objections to this evidence. (Ibid.) The Supreme Court held that any error in excluding the evidence did not rise to a constitutional violation: "[B]y sustaining the People's hearsay objections in these instances, the trial court's alleged error, if error, did not rise to the level of an unconstitutional deprivation of the right to present a defense." (Ibid.) "If the trial court misstepped, '[t]he trial court's ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.' " (Id. at p. 1103.) Similarly, here, the trial court did not prevent Huynh from showing relationships and biases that might undermine the credibility of the witnesses against him; the trial court instead excluded some evidence tending to support that defense. The exclusion affected only a subsidiary point, not Huynh's entire defense. Huynh has not shown the error here implicated his federal constitutional rights.
"When the reviewing court applying state law finds an erroneous exclusion of defense evidence, the usual standard of review for state law error applies: the court must reverse only if it also finds a reasonable probability the error affected the verdict adversely to defendant." (People v. Humphrey (1996) 13 Cal.4th 1073, 1089.) Again, prejudice will be found when "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Watson, supra, 46 Cal.2d at p. 836.)
We have already reviewed in detail the state of the evidence at trial. The prosecution's primary witnesses were Quan Nguyen, who said he witnessed the shooting, and Voung Nguyen, who said Phong Huynh confessed to him. Both witnesses suffered from numerous credibility issues, and their accounts were contradicted by the testimony of Long Tran (who denied Quan Nguyen's claim that he was present before, during, and after the shooting) and Calvin An Le (who denied Voung Nguyen's claim that he was present when Phong Huynh confessed). While the jury's verdict shows that the jurors believed Phong Huynh murdered Pham, the length of deliberation indicates that the decision was not an easy one.
The excluded gang-related evidence would have further undermined the prosecution's case. The evidence that Hieu Do's apartment was a V-Boys gathering place, where it was unlikely that Huynh would confess to Voung Nguyen and Le, both affiliates of another gang, would have reinforced legitimate concerns regarding the veracity of Voung Nguyen's testimony. Given the state of the record, including the numerous credibility issues with both Voung Nguyen and Quan Nguyen's testimony, the length of time since Pham's murder, the lack of direct physical evidence tying Huynh to the crime, and Huynh's own testimony, this additional evidence may well have created reasonable doubt regarding Phong Huynh's guilt in the mind of a juror. And further evidence of Lai's bias in favor of Pham—as a member and an associate of the V-Boys—would have supported such reasonable doubt as well.
For these reasons, we conclude it is reasonably probable, i.e., there is more than a reasonable chance, that a result more favorable to Phong Huynh would have been reached in the absence of the error. (See Watson, supra, 46 Cal.2d at p. 836; Soojian, supra, 190 Cal.App.4th at p. 519.) Huynh's conviction must be reversed for this reason as well.
III
Huynh contends the prosecutor committed error in his examination of Quan Nguyen and during closing argument. During Quan Nguyen's direct examination, the prosecutor asked Quan Nguyen about the terms of his immunity, including its requirement that he be truthful in his testimony. In her closing argument, the prosecutor referenced this immunity agreement and explained, "Immunity agreements are necessary because you have to sometimes give immunity to get the really bad guy. To get the killer." The prosecutor also referenced Quy Tran's status as an informant and said, "You don't stay an informant for the police if you give inaccurate and unreliable information, okay?" Later, the prosecutor told the jury the defense case was based in "lies" and "untrue allegations" about the conduct of police investigators.
"As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety." (People v. Samayoa, supra, 15 Cal.4th at p. 841.) Huynh did not object to any of the claimed errors, nor has he established any exception to the requirement for such an objection. Huynh has therefore forfeited his claims of error on appeal. (People v. Edwards (2013) 57 Cal.4th 658, 736.)
Alternatively, Huynh contends his counsel was ineffective for failing to object. "A meritorious claim of constitutionally ineffective assistance must establish both: '(1) that counsel's representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.' " (People v. Holt (1997) 15 Cal.4th 619, 703.) "A court reviewing the conduct of counsel must in hindsight give great deference to counsel's tactical decisions." (Ibid.) "Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission." (People v. Fosselman (1983) 33 Cal.3d 572, 581 (Fosselman).)
Huynh contends there could be no rational basis for his counsel to refrain from objecting to the prosecutor's conduct. We disagree. As the Supreme Court explained in Fosselman, "[T]here may have been plausible tactical reasons supporting counsel's failure to object. He may have believed that individual objections would have exacerbated the problem by affording the prosecutor an opportunity to elaborate and explain his comments. More likely, he may have determined that the prosecutor's overbearing tactics would arouse sympathy and thus serve defendant's ultimate advantage. Whatever his motive, the record does not establish that counsel had no reasonable basis for refraining from objection." (Fosselman, supra, 33 Cal.3d at p. 582.)
Moreover, on the merits, it was not error for the prosecutor to question Quan Nguyen regarding the details of his immunity agreement or reference it in closing argument. (People v. Frye (1998) 18 Cal.4th 894, 971.) Nor was it error under the circumstances here for the prosecutor to refer to the defense theory as "lies" and "untrue allegations." (People v. Stanley (2006) 39 Cal.4th 913, 952; People v. Seaton (2001) 26 Cal.4th 598, 663.)
The prosecutor's comments about Quy Tran's status as an informant present a closer case. The Attorney General contends it is "common sense" that an informant will not stay an informant unless he provides valid information. But it can be reasonably argued that common sense would lead to skepticism of the statements of a serial informant. (See, e.g., People v. Kurland (1980) 28 Cal.3d 376, 393 ["All familiar with law enforcement know that the tips they provide may reflect their vulnerability to police pressure or may involve revenge, braggadocio, self-exculpation, or the hope of compensation."]; People v. Mason (1982) 132 Cal.App.3d 594, 597.) The Attorney General also contends the prosecutor's statement was a fair inference from evidence that the San Diego Police Department paid informants only after they provided valid information and Quy Tran was paid. (Quy Tran, for his part, denied being paid.) But this history does not support the general statement that longstanding informants are trustworthy.
However, in light of the specific evidence about Quy Tran admitted at trial, and the court's usual instructions cautioning the jury that counsel's statements are not evidence, the prosecutor's statement was harmless, even if Huynh had shown there was no rational basis for his counsel's failure to object.
IV
Huynh contends the court erred by allowing a police detective to testify regarding statements made by Tai Huynh and Long Tran about the motive for Pham's murder. On cross-examination, the prosecutor asked Tai Huynh, "And you told the detectives you have no knowledge as to why [Pham] was killed, correct?" He answered, "Correct." The prosecutor then asked, "Did you tell the detectives the murder has to be something connected to your brother?" Tai Huynh denied making that statement to detectives. Similarly, the prosecutor asked Long Tran, "Did you tell detectives that murder occurred because Bao [Huynh] got hit in the head at Luc Huyen Cam?" He answered, "No." On rebuttal, the prosecution called a police detective, who testified that Tai Huynh and Long Tran told him that Pham's murder was connected to the fight at the Luc Huyen Cam.
Following an objection by Huynh's counsel, the trial court gave the jury the following instruction: "It is not for the truth of the matter stated. It just goes to credibility or impeachment as far as the witness. As far as Long [Tran] said one thing here, and then in a conversation he said another. It's not for the truth of the matter stated, only goes to impeachment. Credibility of telling the truth, not telling the truth, okay?" Later, during the trial court's closing jury instructions, the court gave CALCRIM No. 318, which told the jury that it may use prior statements of a witness both to assess credibility and as substantive evidence that the information in the prior statement is true.
Huynh argues that Tai Huynh's and Long Tran's statements to police regarding the motive for Pham's murder were speculation. The Attorney General responds that the statements were properly admitted for impeachment only, and not for their truth. Considered only for impeachment, the statements were admissible notwithstanding their potential speculative nature. In this context, the relevance of the statements was found only in whether they were made (thereby undermining Tai Huynh and Long Tran's credibility), not whether Tai Huynh or Long Tran actually knew the motive for Pham's murder. (Cf. People v. Valencia (2006) 146 Cal.App.4th 92, 103 ["The rationale for requiring a hearsay declarant to have personal knowledge when the declarant's statement is admitted for its truth is identical to the rationale for requiring a witness to have personal knowledge of the subject matter of the witness's testimony."] [Italics added.].)
Huynh claims, in passing, that the police detective's testimony was impermissible impeachment on a collateral matter. As the authority Huynh cites explains, however, "collateral matters are admissible for impeachment purposes[,]" subject to exclusion under Evidence Code section 352. (People v. Lavergne (1971) 4 Cal.3d 735, 742.) Huynh has not explained how or whether the trial court erred under that section. Even if this issue were collateral, therefore, Huynh has not shown the trial court erred by admitting the detective's testimony.
As Huynh points out, however, the trial court gave a seemingly contradictory instruction later in the trial. Notwithstanding its earlier statement that the police detective's testimony regarding Tai Huynh or Long Tran's prior statements was not offered for its truth, the trial court told the jury it could use a prior statement as evidence that the information in the statement is true. Given the speculative nature of Tai Huynh and Long Tran's statements to the police detective, which the Attorney General does not dispute, the latter instruction was incorrect. Under the circumstances of this case, the trial court's inconsistent instructions were error. (See People v. Rhoden (1972) 6 Cal.3d 519, 526.)
Huynh does not allege prejudice based on this error alone. Rather, he argues the error was prejudicial when considered together with other errors. We will consider cumulative error in part VI, post.
V
Before Huynh's preliminary hearing, the prosecution requested that the trial court review the personnel file of one testifying police detective, Michael Porretta, for disclosure under Pitchess, supra, 11 Cal.3d 531. Porretta did not testify at the preliminary hearing, so the trial court did not rule on the prosecution's Pitchess motion at that time. Prior to trial, the prosecution raised the issue again. The court conducted an in camera review of certain records in the presence of the prosecution but outside the presence of Huynh or his counsel. It found that the records did not contain any relevant information. The sealed transcript of the in camera hearing does not contain a description of the records, and the superior court clerk was unable to find any records or other material reviewed by the court.
The Pitchess hearing occurred on December 19, 2014. Three days later, the court held another in camera hearing, outside the presence of Huynh or his counsel, to review an additional record provided by the prosecution. The court sealed the transcript of that hearing as well. Because the record at issue in the latter hearing was not a peace officer personnel record, that hearing was not held under Pitchess. Instead, it appears to have been held in camera, and later sealed, to protect the identity of a confidential informant. (Evid. Code, § 1041.)
Huynh requests that we independently review the record of the Pitchess hearing for error. (See People v. Myles (2012) 53 Cal.4th 1181, 1209.) The Attorney General joins in Huynh's request. Given the Attorney General's position, we will assume without deciding that Huynh may raise this issue on appeal even though it does not appear he sought discovery under Pitchess in the trial court.
" 'In 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as "Pitchess motions" (after [the Supreme Court's] decision in Pitchess v. Superior Court [, supra,] 11 Cal.3d 531) through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045. The Penal Code provisions define "personnel records" (Pen. Code, § 832.8) and provide that such records are "confidential" and subject to discovery only pursuant to the procedures set forth in the Evidence Code. (Pen. Code, § 832.7.) Evidence Code sections 1043 and 1045 set out the procedures for discovery in detail.' " (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1037-1038, fn. omitted.)
Evidence Code section 1043 provides, in relevant part, as follows: "In any case in which discovery or disclosure is sought of peace or custodial officer personnel records or records maintained pursuant to Section 832.5 of the Penal Code or information from those records, the party seeking the discovery or disclosure shall file a written motion with the appropriate court or administrative body upon written notice to the governmental agency which has custody and control of the records." (Evid. Code, § 1043, subd. (a).) The motion must include, among other things, an identification of the peace or custodial officer whose records are sought, the government agency which has custody and control of the records, a description of the type of records or information sought, and affidavits showing good cause for the discovery. (Id., § 1043, subd. (b)(1)-(3).) "[T]his provision requires the prosecution, as well as the defendant, to comply with the Pitchess procedures if it wishes to obtain information from confidential personnel records." (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 712.)
"If the trial court concludes the [party] has fulfilled these prerequisites and made a showing of good cause, the custodian of records should bring to court all documents 'potentially relevant' to the defendant's motion. [Citation.] The trial court 'shall examine the information in chambers' (Evid. Code, § 1045, subd. (b)), 'out of the presence and hearing of all persons except the person authorized [to possess the records] and such other persons [the custodian of records] is willing to have present' (id., § 915, subd. (b); see id., § 1045, subd. (b) [incorporating id., § 915])." (People v. Mooc (2001) 26 Cal.4th 1216, 1226 (Mooc).)
"[A] judge making a Pitchess determination 'should . . . make a record of what documents it examined before ruling on the Pitchess motion. Such a record will permit future appellate review. If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined. Without some record of the documents examined by the trial court, a party's ability to obtain appellate review of the trial court's decision, whether to disclose or not to disclose, would be nonexistent.' " (People v. Townsel (2016) 63 Cal.4th 25, 68-69; see Mooc, supra, 26 Cal.4th at p. 1229.)
Based on the current record, we cannot say the trial court's consideration of the prosecution's request under Pitchess complied with these procedures. The record does not contain any order by the trial court granting the prosecution's request to review Porretta's personnel file under Pitchess. Although the prosecution's request identified a custodian of records, he did not appear at the in camera Pitchess hearing and the circumstances surrounding the delivery of records to the court are unknown.
The type of records considered by the court, and their contents, is also unknown. The sealed transcript of the in camera hearing does not contain a description of the records, or any substantive discussion at all, and the records themselves do not appear to have been retained by the court. This was error. (Mooc, supra, 26 Cal.4th at p. 1230 ["Because the trial court did not make a record of the evidence it considered when ruling on [the prosecution's] Pitchess motion, defendant's ability to gain review of the court's denial of that motion was compromised."].)
Although the trial court does not appear to have complied with the applicable procedures, we need not consider the significance of this noncompliance, beyond the order on the motion itself, because we have concluded that the judgment must be reversed for other reasons. We will therefore reverse the trial court's order on the prosecution's Pitchess motion, without prejudice. On remand, the trial court should reconsider the motion in accordance with the procedural and substantive requirements of the statutes and related case law and rule accordingly. Any error in that ruling may then be reviewed on appeal from any subsequent judgment.
VI
Although we already found two prejudicial errors requiring reversal of Huynh's conviction (see parts I and II, ante), the cumulative effect of those errors provides a further, alternate ground for reversal. (See People v. Holt (1984) 37 Cal.3d 436, 459; People v. Basuta (2001) 94 Cal.App.4th 370, 391.) The errors undermined the prosecution's case in similar fashions and would have had a combined effect greater than the effect of each one considered in isolation. Similarly, the error found in part IV, ante, supports this finding of cumulative prejudice. In the absence of that error, the police detective's testimony regarding Tai Huynh and Long Tran's hearsay statements would have been confined to their legitimate purpose—impeachment—and would have made the prosecution's argument that Huynh killed Pham in retaliation for the Luc Huyen Cam fight less persuasive. We therefore conclude that absent the cumulative effect of the errors in parts I, II, and IV, there is a reasonable probability, i.e., a reasonable chance, Huynh would have obtained a more favorable result at trial. Huynh's conviction must be reversed for this reason as well.
We consider the prosecutor's alleged error during closing argument (see part III, ante) to be insubstantial, and as we have explained (1) it was forfeited by Huynh's failure to object and (2) Huynh has not shown his counsel was ineffective. --------
DISPOSITION
The judgment is reversed. The order on the People's Pitchess motion is reversed. The matter is remanded for further proceedings consistent with this opinion.
/s/_________
NARES, J. WE CONCUR: /s/_________
BENKE, Acting P. J. /s/_________
IRION, J.