Opinion
H019727.
10-6-2003
THE PEOPLE, Plaintiff and Respondent, v. HIEP HUY NGUYEN et al., Defendants and Appellants.
STATEMENT OF PROCEDURE
This appeal involves two of five defendants charged with the murder of a jewelry salesman in the course of a robbery.
On December 23, 1996, a felony complaint was filed by the Santa Clara County District Attorney, charging murder (count 1) and robbery (count 2) against four defendants: Hiep Huy "Scott" Nguyen, Dat Dinh Pham, Tien Van Tran and Tin Tri Nguyen.
In May 1997, a preliminary hearing was conducted for Scott Nguyen and Dat Pham and they were ordered to stand trial in the superior court on the charges alleged in the complaint. The information filed on May 23, 1997, charged the two and Tien Tran with the crimes of murder and robbery. Scott Nguyen and Dat Pham were arraigned on May 27, 1997, and entered pleas of not guilty.
After more than a year of delays, trial began on September 15, 1998. On September 16, defendant Tin Nguyens trial was severed. After several more weeks of delay, defendant Anh Vos trial was severed on October 6, 1998. Defendant Phams motion to sever his trial was denied.
At this point in the proceedings, Nguyens and Phams cases were consolidated with the cases of Anh Vo and Tin Nguyen. In May 1998, Tien Tran reached a plea agreement with the prosecution, pleading guilty to conspiracy to commit robbery and personal use of a handgun and agreeing to testify as a prosecution witness, in exchange for a 13-year sentence.
People v. Nguyen (Dec. 6, 2002, H019581) [nonpub. opn.].
People v. Vo (Dec. 6, 2002, H020018) [nonpub. opn.].
Jury selection began on October 6, 1998, and was completed on October 8, 1998. The prosecution presented evidence from October 13 to October 26, 1998. No witnesses were presented for the defense. Jury deliberations began on October 27, 1998, and concluded on October 28, 1998.
Defendant Pham introduced a Department of Motor Vehicles print-out pertaining to Tien Tran.
The jury found both defendants guilty of first degree murder and second degree robbery.
In January 1999, defendant Scott Nguyen was sentenced to a term of 25 years to life for the murder and a five-year term for the robbery. The robbery term was stayed pursuant to Penal Code section 654. Defendant Pham was sentenced in March to the same term: 25 years to life for the murder and a stayed five-year term for the robbery. They now appeal.
STATEMENT OF FACTS
Viewed in accordance with the usual rules on appeal (People v. Osband (1996) 13 Cal.4th 622, 690), the evidence established: On December 17, 1996, around noon, Stanko Vuckovic, a jewelry importer, drove to an apartment complex in San Jose to pick up Anh Vo, a Vietnamese woman who translated for him in his business dealings with Vietnamese jewelry stores. Vuckovic and his business partner Mark Nehamkin imported gold jewelry and had received a large shipment of gold valued at $60,000 - $ 80,000 wholesale for the 1996 Christmas season. Their Vietnamese business associate Denny Dang usually translated for them in their business dealings, but in December 1996 he was on a trip to Vietnam. Dang had introduced Anh Vo to Vuckovic and Nehamkin to translate for them while he was gone. Anh Vo knew the large shipment of gold had arrived and she frequently made appointments for Vuckovic and then accompanied him to various jewelry stores.
Anh Vo and her boyfriend (Danny Vu) were in significant financial trouble at the time.
On Monday, December 16, 1996, Vo had cancelled an appointment to meet Vuckovic, but she called and rescheduled for the next day, with Vuckovic to pick her up at her apartment at 12:30 p.m. Around 12:15 p.m. on December 17, Paula Proveaux, a resident in the apartment complex heard a gunshot fired. She went to the parking lot and found Vuckovic lying on the ground unresponsive. Proveaux encountered a distraught Anh Vo who said the victim was there to meet her. The medical examiner stated that Vuckovic died from the gunshot.
The main evidence at trial was presented through the testimony of accomplice Tien Tran. He testified as follows: On December 15, 1996, he lived in the Los Angeles area and received a call from an acquaintance Tin Nguyen who invited him to take a trip to San Francisco. Tien Tran and his close friend Dat Pham went to a café to meet Tin Nguyen and then on to the home of Scott Nguyen (no relation to Tin). The four then departed for northern California about 11 p.m.—Scott Nguyen and Tin Nguyen in Scott Nguyens white, four-door Toyota and Tien Tran and Dat Pham in Phams red Honda. When they stopped for gas, Tin Nguyen got in the red Honda. As they drove, Tien Tran asked Tin Nguyen what was going to happen, and he replied: "he doesnt know, he have to wait for Scott to tell him. There was going to be a case." Tran understood this to mean there was going to be a robbery.
Tran was originally charged with first degree murder. He was allowed to plead guilty to a lesser charge with a 13-year sentence.
According to several witnesses, Pham and Tran were often together. Tran frequently drove Phams car because Phams license was suspended. The two were seen together immediately before the trip, and were seen with Tin Nguyen soon after their return.
When the two cars arrived in San Jose, they drove to the Garden City Casino and Scott Nguyen made a telephone call. A little while later, Anh Vo arrived at the casino and all got into the white Toyota. Anh Vo drove to a jewelry store, Kim Chi. During this trip, a plan to rob a man with a case of jewelry was discussed. Anh Vo would make an appointment for the man to bring his jewelry to the Kim Chi at noon that day and the others would rob him.
The group then drove to the Howard Johnson Motel. While Scott Nguyen rented a room, Anh Vo explained that she made appointments for the man with the jewelry. The plan was to push the man down and grab the case containing the jewelry. At some point, Anh Vo told them the man drove an older gray BMW car. They drove back to Garden City to drop off Anh Vo. Scott Nguyen went back to the motel; the other three went to a coffee shop. Tien Tran, Dat Pham and Tin Nguyen agreed that Tin Nguyen would hit the man carrying the jewelry and Tien Tran would grab the case. They then went back to the motel to sleep.
As they drove to the Kim Chi jewelry store, the plan was discussed: for Dat Pham to act as lookout while Tin Nguyen hit the man described by Anh Vo and Tien Tran grabbed the case. They would use two cars, with Scott Nguyen following Phams car and if police appeared, Nguyen would commit a traffic violation to distract the police and allow the others to escape. They would all then drive to Los Angeles.
When they arrived at the jewelry store, Tin Nguyen and Tien Tran got out of the cars and walked to the store. They saw the man with the jewelry inside, but several other people were also in the store. Tin Nguyen decided not to proceed with the robbery then. Both got into the red Honda with Dat Pham and were followed by Scott Nguyen in his car back to the motel. Scott Nguyen made a phone call along the way, and told the others Anh Vo would make another appointment for the next day. They agreed to the same plan and to play the same roles.
Later that night, Tien Tran, Tin Nguyen and Dat Pham went out to party with some friends of Tin Nguyen. In the early morning hours of December 17, 1996, they were stopped and cited for a traffic violation by a San Jose police officer. Tran was driving the car, containing two male passengers. The passengers were not specifically identified at trial.
About 11:30 a.m. on December 17, the four men awoke and went to a convenience store for Scott Nguyen to make a telephone call. After the call, he told the other three that the robbery would take place in an apartment complex. The group then drove to the Garden City Casino, parked the red Honda and headed toward the apartment complex in the white Toyota. They looked around the apartment complex, and as they were leaving, they saw the victim arrive in his car. Scott Nguyen drove the group back to the casino. He remained in his car and the other three got into Phams red Honda. As they drove back to the apartment complex, Tin Nguyen took a gun he had previously loaned to Tran from its hiding place in Phams car.
When the red Honda reached the apartment complex, Tin Nguyen and Tien Tran got out and ran to where Vuckovic was standing by his gray BMW. Tien Tran grabbed at the door handle of the drivers side and was grabbed by Vuckovic. Tin Nguyen then pointed the gun at Vuckovic, and Vuckovic grabbed Nguyens hand with the gun. As the three men struggled, the gun went off. Vuckovic fell to the ground. Tin Nguyen ran off. Tien Tran got into the victims car and drove it around the corner where he met up with Pham and Tin Nguyen. Tin Nguyen had located a briefcase and green bag in the car. Tien Tran grabbed the two items, then he and Tin Nguyen got into the red Honda, which Dat Pham drove away.
The red Honda got on the freeway with Tien Tran and Tin Nguyen crouched down in the seats. When they sat up, after five to 10 minutes, they saw Scott Nguyen behind them in his white Toyota. They then followed him to a McDonalds restaurant. At the restaurant, Tien Tran threw away the gloves he used to prevent fingerprints and the jewelry was moved to Scott Nguyens car. As they headed back to Los Angeles, Tin Nguyen rode with Scott Nguyen in the white Toyota, and Dat Pham and Tien Tran rode in the red Honda.
When they arrived back in the Los Angeles area, all four went to Tin Nguyens house and put the green bag containing the jewelry in his garage. Then they all went to Henry Chungs house, where Tin Nguyen gave the gun and the briefcase to Henry Chung.
Henry (Tran) Chung and Tin Nguyen were members of the same gang.
In a videotaped interview Chung admitted that about two weeks before Christmas in 1996, he received some pieces of a gun and a briefcase from Tin Nguyen. He threw the briefcase and gun handles into a dumpster. On December 27, 1996, when a search warrant was served on his home, Chung asked his girlfriend Cathy Nguyen to throw the remaining gun parts out the apartment window. She did, but the parts were recovered. Comparison of these parts with the shell casing from the crime scene showed the recovered parts belonged to the murder weapon.
On December 18, 1996, Scott Nguyens apartment and white Toyota were searched. On December 19, 1996, Dat Phams red Honda was impounded and Pham and Tien Tran were arrested when they attempted to recover the car the next day.
APPEAL OF DEFENDANT HIEP "SCOTT" NGUYEN
I
Error in Reporters Transcript
Defendants major claim on appeal is that his trial was fundamentally unfair because the jury deliberations were based on an erroneous record that precluded his theory of defense. He presents this basic claim of error in a number of different arguments in his brief, but all depend on one alleged error in transcription.
The prosecution theory at trial was based on an uncharged conspiracy to rob the victim, a conspiracy beginning in Los Angeles, continuing to San Jose and back to Los Angeles. The prosecutor argued both conspiracy and aiding and abetting. Thus, even though defendant was not present at the scene of the crime, he was guilty of robbery and felony-murder as a conspirator or aider and abettor. At trial, defendants theory was that he withdrew from the initial conspiracy before the robbery/murder took place and thus he was guilty only as an accessory (after the murder) and as a coconspirator to the initial conspiracy to rob. Defense counsels closing argument focused on this withdrawal.
During deliberations, the jury sent a note which requested" `read back of the testimony of Tien Tran related to statements made by Scott Nguyen in the Garden City parking lot prior to murder." In fact, no direct statements were made. Only one question was asked. The court reporters notes indicated the witness did not give a direct answer to a question about whether defendant said he was going back to Los Angeles. The court reporters notes reflected the following interchange: "Q: And at some point Scott said something about going back to L.A., didnt he?" "A: After the robbery?" (Objection made by the prosecutor.)
At the conference on the jury request, defense counsel argued vigorously that the witness had responded "yes," a word that was missing from the court reporters notes. After hearing from both defense counsel and the prosecutor, the trial court concluded: "The bottom line is that the transcript is the official court record. I have absolutely no reason to believe the transcript is in error. To the contrary, I have every reason to believe that the transcript correctly states what the witness testified. My own recollection is not to any extent that the witness said yes, indicating that he was somehow withdrawing from this conspiracy. That testimony, if it occurred, was not heard by me either."
Defendant claims this alleged omission from the transcript resulted in prejudicial error in that the readback indicated to the jury that his theory of defense had no foundation in fact. Specifically, he asserts: (1) court reporter error materially altered the record; (2) the trial court abused its discretion in failing to correct the record; (3) the prosecutor committed misconduct in refusing to acknowledge the reporters error; (4) he was denied the effective assistance of counsel; and (5) the trial was fundamentally unfair.
Defendant first contends the court reporter erred in omitting the word "yes," and this omission materially altered the official record in such a way that he was severely prejudiced. He notes various examples of court reporter error, which may affect the fairness of a trial. (See People v. Feigin (1959) 174 Cal.App.2d 553, 566; People v. Beck (1993) 17 Cal.App.4th 209, 215; People v. Lucas (1995) 12 Cal.4th 415, 468-469.) He also cites to People v. Smith (1983) 33 Cal.3d 596, where the Supreme Court explained: "`[A]s a general rule . . . when . . . the record is in conflict it will be harmonized if possible; but where this is not possible that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence [citation]." (Id . at p. 599.) Defendant insists that because his counsel and codefendants counsel adamantly recalled hearing the witness answer "yes," and because other circumstances point to that answer, the trial courts ruling should be rejected. The other circumstances defendant points to are the fact that the trial court agreed to give appropriate jury instructions as if defendant had withdrawn from the conspiracy (which, he theorizes, the court would not have done if there had been no such evidence), the prosecutors stipulation to the jury instructions, and the prosecutors use of the colloquy in his closing argument, even though he denied hearing the witnesss answer when he was asked about it during the readback discussion.
Furthermore, defendant argues that this alleged court reporter mistake occurred at a critical point in the trial and that his entire defense was built around his withdrawal from the conspiracy. He fears that when the readback to the jury failed to show that the witness answered the question affirmatively, his entire defense appeared to have no evidentiary support.
In contrast, the People urge us to follow the Supreme Courts analysis in the case of People v. Hawthorne (1992) 4 Cal.4th 43. In Hawthorne, the questions concerned whether there had been improper ex parte communication between the trial judge and the deliberating jury. "The fulcrum of defendants numerous claims is his assertion that Judge Lew, through the medium of the bailiff, improperly instructed the jury ex parte and off the record in response to an indication they were deadlocked in their deliberations. A critical examination of the record fails to substantiate this broad characterization of the proceedings, which is based upon selective portions ostensibly favorable to defendant. A reviewing court must consider the entire record; it may not isolate certain particulars and disregard the totality of the circumstances." (Id. at p. 63.) The trial judge in Hawthorne had prepared an affidavit of unreported events after he had refreshed his recollection through a review of the transcripts. (People v. Hawthorne, supra, 4 Cal.4th at pp. 62-63.)
Here, the trial court listened to each counsel recite his or her version of what the witnesss testimony had been. The court also reviewed the reporters notes and the courts own recollection of the interchange in question. This is certainly an important part of the record. In addition, when we consider Trans entire testimony, nothing specifically reflects his awareness of defendants withdrawal from the conspiracy. No direct questions were asked. Indeed, the plan from the beginning included return to Los Angeles in separate cars.
Defendant complains the trial court did not make the prosecutor fully explain his use of a "yes" response in his closing argument.
The testimony showed that defendants role was to be the backup car that would direct possible police attention away from the others in the red Honda after the robbery. The four coconspirators were in defendants car when they first cruised by the parking lot of Vos apartment and unexpectedly came upon the intended victim. They immediately drove back to the Garden City Casino parking lot where defendant stayed in his white Toyota. The other three went back to the apartment parking lot in the red Honda to commit the crime. The two cars then came in contact on the freeway, after the crime, and the red Honda followed defendant to a McDonalds restaurant.
Tran also testified that defendant and the others had a discussion on December 16 (the day before) at the motel about the plan to return to Los Angeles after the robbery. His testimony about what happened in the Garden City Casino parking lot reflects no discussion or comment from Scott Nguyen about abandoning the plan and immediately heading back to Los Angeles. In fact, defendant has not pointed us to any other part of Trans testimony showing any attempt by defendant to withdraw from the conspiracy. "A defendants mere failure to continue previously active participation in a conspiracy, however, is not enough to constitute withdrawal; there must be an affirmative and bona fide rejection or repudiation of the conspiracy, communicated to the coconspirators. [Citations.]" (People v. Crosby (1962) 58 Cal.2d 713, 730.)
"Q: You guys just drove right back to Garden City, right? [¶] A: Yes, maam. [¶] Q: And was there any conversation at all about what to do then? [¶] A: No, maam. [¶] Q: Okay. So you just drove back, right? [& para;] A: Yes, maam. [¶] Q: And as soon as you got back there the three of you jumped right out of Scotts car, right? [& para;] A: Yes, maam. [¶] Q: And you jumped into Dats car? [¶] A: Yes, maam. [¶] Q: With you driving? [¶] A: Yes, maam. [¶] Q: And you immediately headed back towards the apartment complex? [¶] A: Yes, maam."
Defendant points to other testimony by Tran as additional evidence in support of withdrawal: "Q [Prosecutor]: While youre in custody with Scott, did he ever deny to you that he didnt act as a backup man? [¶] [Objection and bench conference.] [¶] Q: . . . Did Scott ever deny that he didnt follow-up on his role as a backup man? [¶] A: Did he ever deny? [¶] Q: Yeah. [¶] A: No." We find this exchange ambiguous at best.
Defendant insists that counsel stipulated to and the trial court agreed to give instructions on withdrawal from a conspiracy, and thus the word "yes" must have been omitted from the transcript. But this does not necessarily follow. Defense counsel argued that defendant was not identified at the scene and he was in a separate car.
Even assuming arguendo the word "yes" was erroneously omitted from the reporters transcript, we fail to see true prejudice to defendants case. As the record was read back to the jury, it reflected the prosecutors objection interrupting and preventing the witness from answering. Thus his answer could have been a matter of speculation and could have been "yes" as his counsel argued in closing argument. In fact, in closing argument, defense counsel made many representations of what defendant said about withdrawing from the conspiracy yet none of the alleged quotations were actual words or even ideas testified to by Tran or by any other witness.
"[My client says] Little Tien [Tien Tran] agrees, `Im going back to L.A." "He said, Im gone. Im out of here. Im going back to L.A."
Moreover, if we assume the witness in fact answered "yes" and we then review the transcript with that word inserted, it hardly makes the case defendant now urges. For example, (1) "Yes. After the robbery?" (2) "Yes, after the robbery." (3) "After the robbery, Yes." (4) "After the robbery? Yes."
In fact, reading the disputed question and answer in context with the preceding and following testimony makes it quite uncertain as to what the timing of the conversation itself or the trip back to Los Angeles actually was. Defense counsel did not pursue the topic of withdrawal or return to Los Angeles and asked no further questions to shed light on this theory.
Although defendant insists there is no way to know how the court would have properly corrected the error, counsel made no claim that anything more than the word "yes" was missing from the transcript. And when the initial objection was raised, counsel simply said she would approach it from another way and never asked further questions that shed any light on defendants alleged withdrawal from the conspiracy.
The jury asked for a readback, most likely to see if any direct statement was made or to see if the various statements quoted by counsel in closing argument were correct. In fact, none of the statements were quotations from the actual testimony and no further questions were asked of the witness.
Even were we to accept defendants claim of error, we would find no prejudice under either standard. (People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24.) The jury asked the question most logically to see if there was any conversation about defendants withdrawal from the conspiracy. Defendant has made no claim either here or below that anything more than the word "yes" might have been omitted. Even assuming the word should have been in the transcript, it simply does not support what defendant is asserting. We find no substantial or prejudicial omission. (See People v. Bills (1995) 38 Cal.App.4th 953, 959-960.)
In the recent case of People v. Nguyen (2003) 111 Cal.App.4th 184, the First District held that when the prosecution relies on a conspiracy theory to establish liability for the underlying felony, conspiracy becomes a lesser included offense of felony murder and the jury must be given the option of returning a conspiracy verdict if there is substantial evidence of withdrawal from the conspiracy prior to the killing. Such verdict forms were included in the present case. In Nguyen, the defendant himself testified for the defense explaining the full details of his statements and acts to demonstrate his withdrawal from the conspiracy. The reviewing court also held that his proffered testimony about statements of several of his codefendants also withdrawing from the conspiracy should have been admitted under the mental state exception to the hearsay rule. (See Evid. Code, § 1250.) The court used the Watson standard to review prejudice from the omission.
As we have concluded that any alleged omission from the reporters transcript did not prohibit defendant from receiving a fair trial, we discuss only briefly other related issues raised by defendant.
Abuse of Discretion
First, defendant claims the trial court abused its discretion in finding no conflict between the reporters notes and other evidence demonstrating the reporters error. He also challenges the courts failure to further question the prosecutor about his ambiguous recollection of whether the word "yes" was uttered or not. Defendant argues the trial court should have handled this more like a settled statement proceeding and should have made a different assessment given that both defense counsel and, by implication, the prosecutor remembered the word "yes" being spoken.
But all of this was before the trial court. The court then made essentially a finding of fact that the reporters notes were correct. Substantial evidence supports this finding.
Prosecutorial Misconduct
Defendant also asserts the prosecutor was guilty of misconduct in that the state is held to higher standards of conduct in criminal proceedings and bad faith is not required in order to show misconduct by the state. Defendant contends the prosecutor must have been intentionally inaccurate in his recollection of how the colloquy went because he argued otherwise in his closing argument However, our review of the prosecutors remarks does not indicate an intentional misrepresentation.
Ineffective Assistance of Counsel
Defendant makes the further contention that his trial counsel was ineffective in failing to move for mistrial because of the incurable prejudice from this transcript error. The trial court is vested with considerable discretion in ruling on mistrial motions, and "it would be a rare case in which the merits of a mistrial motion were so clear that counsels failure to make the motion would amount to ineffective assistance." (People v. Haskett (1982) 30 Cal.3d 841, 854.) Defendant has not shown that counsels alleged omission was grounded in ignorance or misapplication of the law rather than tactical considerations, nor has he shown a strong potential for success of the motion. (Id. at p. 855.)
Constitutional Claims
In addition, defendant asserts his trial was fundamentally unfair in that four of his constitutional rights were violated: the right to present evidence, the right to confrontation, the right to counsel, and the right to a fair trial. These claims are essentially variations of his primary argument in other guise. We have repeatedly concluded that the alleged omission in transcription did not engender reversible error.
Defendants separate claim that this court denied his right to an effective appeal by denying his motion to correct and settle the record is similarly without merit.
Our review of the record shows no prejudicial error by the court reporter or in the trial courts finding that no error occurred.
II
Jury Instructions
Finally, defendant claims two instructional errors: (1) the trial court failed to instruct on the duration of the robbery for purposes of aiding and abetting, and (2) the trial court misinstructed the jury as to the underlying crime for the lesser offense of accessory after the fact.
First, we note the parties stipulated to all jury instructions. Furthermore, when all counsel were asked by the trial court if there were any issues, none were raised. Defendant now insists that the trial court had a sua sponte duty to instruct in line with his arguments, thus his consent to the instructions or failure to object below does not waive his right to raise the issues on appeal.
Failure to Instruct on Duration
The defense theory at trial posited that defendant formed the intent to facilitate or encourage the robbery/homicide only after the asportation of the stolen jewelry. He explained that the freeway stop at McDonalds provided a place of temporary safety for the actual robbers, and thus he was not involved before that time, because of his withdrawal from the original conspiracy. He relies on People v. Cooper (1991) 53 Cal.3d 1158, in support of his assertion that CALJIC No. 9.40.1 should have been given to instruct the jury on the duration of the robbery.
However, the facts of Cooper are distinguishable from the facts at hand. In that case, the defendant was the getaway driver, in a case where his two companions were out of his sight stealing a wallet and there was no evidence he possessed the intent to aid the robbery. The Supreme Court concluded that "courts should instruct that for purposes of determining liability as an aider and abettor to robbery, the commission of the crime of robbery is not confined to a fixed place or a limited period of time and continues so long as the stolen property is being carried away to a place of temporary safety." (People v. Cooper, supra, 53 Cal.3d at p. 1170.) The defendant in Cooper made no admission that he was guilty of an original conspiracy to rob, but that he had withdrawn from the conspiracy and thus was not liable for the robbery when he happened on the robbers after the crime was completed. The evidence in the case at hand showed that defendant was the actual instigator of the plan to rob the jewelry seller. His role was always to be as a backup and not to be involved with the car carrying the actual perpetrators. In this specific circumstance, we decline to place a sua sponte duty on the trial court to instruct on the duration of the robbery that defendant planned.
Misinstruction on Underlying Crime for Lesser Offense
At trial, defendant essentially conceded that he was involved in the initial conspiracy to rob, but withdrew, and that he could have been considered an accessory after the fact to the actual murder. But in closing argument, defense counsel seemed to confuse the two and the trial court gave the accessory instruction as to robbery. Defendant fears the jury somehow thought his counsel was admitting to two robbery-related offenses.
In fact, counsel corrected any errors in her closing argument.
When considering the argument, the jury instructions as a whole and the verdict forms, we fail to see the possibility of confusion or prejudice.
Cumulative Error
As our Supreme Court has often reminded: "Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice." (People v. Hill (1998) 17 Cal.4th 800, 844; see Cal.Const., art. VI, § 13; see also Chapman v. California, supra, 386 U.S. at p. 24 [harmless-beyond-a-reasonable-doubt standard applies to review of federal constitutional error].) In this case, we see no miscarriage of justice.
APPEAL OF DEFENDANT DAT PHAM
I
Insufficient Evidence to Corroborate Accomplice Testimony
Defendant Pham first contends that the evidence was insufficient to corroborate the accomplice testimony against him and thus his motion to dismiss, pursuant to Penal Code section 1118.1, should have been granted. He argues that Penal Code section 1111 is a statutory bar to conviction unless its requirements are satisfied, and here those requirements were not satisfied.
Penal Code section 1118.1 provides that the court "shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal."
Penal Code section 1111 provides in relevant part: "A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." The principles of law surrounding the requirement of corroboration are well established and were set forth by the Supreme Court in People v. Rodrigues (1994) 8 Cal.4th 1060: "`"The requisite corroboration may be established entirely by circumstantial evidence. [Citations.] Such evidence `may be slight and entitled to little consideration when standing alone. [Citations.]" [Citations.] `"Corroborating evidence `must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged. [Citation.]" [Citations.] In this regard, `the prosecution must produce independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged. [Citation.] [Citation.] `"Corroborating evidence is sufficient if it substantiates enough of the accomplices testimony to establish his credibility [citation omitted]." [Citation.]" (People v. Rodrigues, supra, 8 Cal.4th at p. 1128.)
Defendant emphasizes that the statute requires that the corroborating evidence must connect the defendant with some act or fact that is an element of the crime and not just connect the defendant to other defendants or to the crime in general. (See People v. Rodrigues, supra, 8 Cal.4th at p. 1128; People v. Sully (1991) 53 Cal.3d 1195, 1228; People v. Lohman (1970) 6 Cal.App.3d 760, 765-766 disapproved on another point in People v. Allen (1999) 21 Cal.4th 846, 866, fn. 21.)
Defendant complains of sloppy language in certain cases, which allow such lesser standards to be accepted. See for example People v. Lyons (1958) 50 Cal.2d 245, 257 disapproved on another point in People v. Green (1980) 27 Cal.3d. 1, 34 [corroboration may be sufficient if "tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth"]; People v. Knight (1980) 111 Cal.App.3d 201, 205-206 ["Corroborating evidence is sufficient if it substantiates enough of the accomplices testimony to establish his credibility [citation]."]
Defendant illustrates his point by setting forth two cases where convictions were reversed and defendants acquitted when the corroborating evidence did not reasonably tend to connect the defendants with the crimes within the mandates of Penal Code section 1111. In People v. Robinson (1964) 61 Cal.2d 373, the defendant was found guilty of first degree murder, after the jury heard a codefendants judicial confession implicating the defendant. The independent evidence linking the defendant with the crime consisted of his fingerprints on the car used by the criminals, conflicting statements as to his whereabouts during the weekend of the crime, and a questionable "adoptive admission." Independently or cumulatively, this evidence was deemed insufficient: the fingerprints showed no more than contact with the car on a recent date, a circumstance equally susceptible to an innocent as a guilty inference, and association with a criminal was not to be equated with connection with the crime. In People v. Braun (1939) 31 Cal.App.2d 593, the defendant was found guilty of murder and attempted murder. The prosecutors theory was that the defendant planned the robbery, and advised and encouraged its commission. There was independent evidence suggesting an opportunity to have done so, but the court deemed this to raise only a suspicion of guilt. Even though it was established that the defendant had associated with the actual perpetrators after the crimes, such conduct gave rise only to suspicion. (See also People v. Falconer (1988) 201 Cal.App.3d 1540; People v. Boyce (1980) 110 Cal.App.3d 726.)
The defendants here were not charged with the separate crime of conspiracy, but evidence of a conspiracy was introduced and the jury was appropriately instructed. "It is firmly established that evidence of conspiracy may be admitted even if the defendant is not charged with the crime of conspiracy. [Citations.] Once there is proof of the existence of the conspiracy there is no error in instructing the jury on the law of conspiracy. [Citation.]" (People v. Rodrigues, supra, 8 Cal.4th at p. 1134.)
The interrelationship of the law requiring accomplice corroboration and the principles of criminal conspiracy are not clearly delineated in the case law. Defendant insists that in this case the two areas of legal analysis as incorrectly argued by the prosecutor became enmeshed in a way that allowed the jury to convict him of the crimes as a coconspirator when the accomplices testimony had not been adequately corroborated as to him specifically.
Defendant complains that only four factors in any way connected defendant Pham to the crime: (1) a prior close relationship with Tien Tran; (2) evidence that Tien Tran was stopped in San Jose the night before the killing in defendants car with two male passengers; (3) a red car similar to defendants car was present when the gun was dropped off at Henry Chungs house; and (4) defendant was with Tien Tran at the pool hall and at the police station when they attempted to recover defendants impounded car after the killing.
According to defendant, none of these factors connects defendant to the elements of the crime of robbery. Rather, they only connect him to Tien Tran (who usually drove defendants car) and connect his car to the robbery.
Defendant further complains of the prosecutors inaccurate explanation of the law in his closing argument. At various points in the argument, the prosecutor explained that to believe Tien Trans testimony completely, the jury only needed some evidence of his truthfulness, and the fact that defendant and Tran were often seen together could be that evidence. The prosecutor further pointed out, over defense counsels objection, that he only needed to offer corroboration of an overt act showing the conspiracy and this act was defendant obviously giving his car to Tran. The prosecutor also stated: "I do not have to place Dat Pham in San Jose. I have to connect him with an overt act." Defendant insists this argument was incorrect and misleading.
In response, the People note that a defense motion pursuant to Penal Code section 1118.1 may be granted only if the trial court concludes a reviewing court would find the conviction could not be upheld. They further note that the uncorroborated testimony of an accomplice may establish the corpus of a conspiracy. (People v. Rodrigues, supra, 8 Cal.4th at p. 1134.)
The People then focus the majority of their discussion on the principles of law surrounding a conspiracy, emphasizing the circumstantial and other evidence connecting defendant Pham to the conspiracy. In Rodrigues, the Supreme Court explained: "`Although the existence of the conspiracy must be shown by independent proof [citation], the showing need only be prima facie evidence of the conspiracy. [Citation.] The prima facie showing may be circumstantial [citation], and may be by means of any competent evidence, which tends to show that a conspiracy existed. [Citation.] [Citation.] Furthermore, the independent proof required to establish the existence of a conspiracy may consist of uncorroborated accomplice testimony. [Citations.]" (People v. Rodrigues, supra, 8 Cal.4th at p. 1134.) The court continued: "Evidence is sufficient to prove a conspiracy to commit a crime `if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. [Citations.] [Citation.]" (Id. at p. 1135.)
The People then detail the evidence connecting each defendant to the conspiracy and to the crime. They offer the following "independent evidence" tying defendant Pham to the conspiracy:
1. "Tien Trans uncorroborated testimony established the nature of the conspiracy and the role of each of the other four persons involved in the conspiracy. The connection of each of the other persons named by Tien Tran as members of the conspiracy is independently corroborated."
2. Tien Trans brother Michael Tran testified that on the evening of December 15, 1996, Tien Tran left his house with Dat Pham. Later that night, he returned home in the red Honda and left again, not returning until the early morning hours of Wednesday, December 18, 1996.
3. Steven Nguyen established that Tien Tran and Dat Pham spent a lot of time together. He also established that Tien Tran, Dat Pham and Tin Nguyen were together on December 19, 1996.
4. The evidence established that Dat Pham owned the red Honda that was involved in the conspiracy plan.
5. Officer Booth of the San Jose Police Department established that Dat Phams red Honda was stopped in San Jose in the early morning hours of December 17, 1996, and that a citation was issued. The officer observed three young Asian males in the car. Tien Tran was driving the car; Scott Nguyen was not one of the three in the car.
6. Paula Proveaux, an apartment complex resident, observed two young, Asian males running toward the parking lot. After she heard a shot, she turned and saw one of the two with a gun.
7. Bernie Carrion, an apartment resident, observed the young Asian male who shot the man. He testified that neither Scott Nguyen nor Dat Pham was the one.
8. Sandra Patterson, another apartment complex resident, testified that she saw a young Asian man pointing a gun at a man who said he had been shot. She also saw a second Asian man get in the victims car and leave.
9. The victims vehicle was found abandoned a short distance from the location where he was shot. The key to the car was found near the open trunk of the car.
10. The murder weapon was delivered to Henry Chung when the conspirators returned to Los Angeles. Chungs girlfriend (Cathy Nguyen) told police she saw what could have been a red Honda near the garage then. In his statement, Chung said that Tin Nguyen came with another person in a white four-door sedan, and another car, which he did not see, was with them.
The People also point to a statement by Pham (testified to by Tran) as a declaration against interest. (Evid. Code, § 1230.) When Scott Nguyens counsel cross-examined Tran, she asked about various deals being offered to the conspirators. The prosecutor then followed up on redirect, by asking Tran if he had spoken with Pham about the crime when they were in custody together. Tran reported that Pham said that "he didnt do nothing to deserve that much time."
Certain out-of-court statements admissible as hearsay rule exceptions have been considered independently reliable and not subject to the corroboration requirements of Penal Code section 1111. (See People v. Williams (1997) 16 Cal.4th 153, 244-245 ; People v. Sully, supra, 53 Cal.3d at pp. 1229-1230.) The People contend that Phams statement, made when conspirators charged with crimes were discussing the proceedings against them, should not be considered as made under suspect circumstances, but under reliable ones. They maintain this statement could be viewed by the jury as independent evidence tying Pham to the crime as indicated by his awareness of guilt.
Defendant disagrees with this claim of reliability, and with the position that evidence tying him to the conspiracy is sufficient to fulfill the requirements of accomplice corroboration. He acknowledges that the case law is confusing and somewhat unclear, in that it refers only to a defendants connection to a conspiracy needing corroboration. (See People v. Buono (1961) 191 Cal.App.2d 203 ["The testimony of an accomplice is sufficient to establish the fact of conspiracy; he or she needs corroboration only with respect to defendants connection with it"]; see also People v. Price (1991) 1 Cal.4th 324, 443-444.) Defendant also objects that because the overt act requirement of a conspiracy is not actually a criminal act, it is not sufficient corroboration for purposes of the statutory requirements concerning accomplice testimony to tie him merely to an overt act, i.e., loaning his car for use in the robbery conspiracy.
The People maintain that evidence connecting a defendant to a conspiracy is sufficient. They point to the Supreme Court case, People v. Fauber (1992) 2 Cal.4th 792, when the court explained that the evidence necessary to corroborate an accomplice "must come in by means of the testimony of a nonaccomplice witness. [Citation.] It need not corroborate every fact to which the accomplice testified or establish the corpus delicti, but is sufficient if it tends to connect the defendant to the crime in such a way as to satisfy the jury that the accomplice is telling the truth. [Citation.] Corroborative evidence may be slight and entitled to little consideration when standing alone. [Citations.]" (Id. at pp. 834-835.) People v. Price, supra, 1 Cal.4th at p. 444 is similar: "The existence of a conspiracy may be proved by uncorroborated accomplice testimony; corroboration of accomplice testimony is needed only to connect the defendant to the conspiracy." Given these statements by our Supreme Court, we cannot accept defendants position. Even if the evidence presented tied defendant to the conspiracy and is not directly corroborated as to the crime, we are convinced that is sufficient.
Evidence independent of the accomplice testimony established the close relationship and frequent companionship of defendant and Tien Tran. The two were together shortly before the trip to San Jose and again immediately after the trip when Tin Nguyen was with them. Defendants car was stopped in San Jose the night before the crime with three young Asian males inside, Tien Tran as the identified driver, and two others, definitely not Scott Nguyen. A car very similar to defendants was seen when the identified gun was dropped off at Henry Chungs house.
Our Supreme Court has stated, in considering what evidence is sufficient to corroborate an accomplices testimony for purposes of Penal Code section 1111: "The relationship of the men and all their acts and conduct may be considered in determining whether there are corroborating circumstances. [Citations.]" (People v. Henderson (1949) 34 Cal.2d 340, 343.) We find the evidence sufficient to tend to connect the defendant with the crime charged. (See People v. Rodrigues, supra, 8 Cal.4th at p. 1128.)
"[U]nless a reviewing court determines that the corroborating evidence should not have been admitted or that it could not reasonably tend to connect a defendant with the commission of a crime, the finding of the trier of fact on the issue of corroboration may not be disturbed on appeal. [Citations.]" (People v. Falconer, supra, 201 Cal.App.3d at p. 1543.) In our view, the evidence could reasonably tend to connect defendant with the crime, and we defer to the finding of the trier of fact. Thus, we find no error in the trial courts denial of defendants motion for acquittal.
II
Inadequate Jury Instruction
Defendant next contends the jury instruction describing adequate corroboration for accomplice testimony was inaccurate in the context of this case, and thus, when combined with the prosecutors argument, the evidence as presented and defense counsels failure to persistently object to the closing argument, resulted in a jury verdict where the jury was not actually required to find corroboration of the accomplice testimony.
Although all counsel stipulated to the jury instructions as given which would generally bar appellate review, we address the merits of defendants claim as he additionally contends that counsel was ineffective. (See People v. Rodrigues, supra, 8 Cal.4th at p. 1134.)
The jury was instructed on the issue of accomplice corroboration with CALJIC Nos. 3.16 [Tran as accomplice as matter of law], 3.11 [corroboration needed for accomplice testimony] and 3.12 [what is adequate corroboration]. The jury was also instructed with CALJIC Nos. 6.10.5 and 6.11 on conspiracy, vicarious liability and acts in furtherance of conspiracy.
Defendant complains that the last sentence of CALJIC No. 3.12 is inaccurate, in that it states: "If there is independent evidence which you believe, then the testimony of the accomplice is corroborated." He also complains that the conspiracy instructions were not specifically tailored to accommodate the requirements of Penal Code section 1111, and thus when the prosecutor argued that Pham need only be tied to the conspiracy, the jurors were not informed that Penal Code section 1111 still required specific corroboration of the accomplice testimony.
However, defendants complaints stem primarily from pulling specific sentences out of context and reading parts of instructions in isolation. But, "error cannot be predicated on the fact . . . that isolated phrases, sentences, or excerpts are open to criticism." (People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1075.) In fact, defendant must demonstrate that the entire charge to the jury considered as a whole was erroneous when he claims instructional error causing a miscarriage of justice. (Id. at pp. 1074-1075; see also People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) Our review of the instructions as a whole indicates no prejudicial error.
In addition, as we have concluded above, nothing in the case law specifically prohibits the reliance on evidence of a defendants connection to a conspiracy as a whole in corroboration of an accomplices testimony.
III
Improper Argument on Lack of Alibi Witnesses
Defendant next argues that the trial court erred in allowing the prosecutor in closing argument to point out the lack of alibi witnesses. He maintains that this argument combined with the trial courts response to a jury query about the absence of such witnesses allowed the jury to find adequate corroboration of Trans testimony based on this absence. Such a failure to explain by a defendant is not proper corroboration, according to defendant.
Defendant acknowledges that in general the prosecutor may comment on the failure of the defendant to call logical witnesses who could support his theory of defense, for example, alibi witnesses. (People v. Ford (1988) 45 Cal.3d 431, 438.) But as the Ford court further pointed out, this rule may be criticized if the reasons for a defendants silence are ambiguous or if the defendant is standing on silence. (Id . at p. 447.)
In Ford, the court implied the standard for review was whether the trial court abused its discretion . Here, the theory of the defense was that defendant was not in San Jose. Thus, he did not stand on silence nor were the reasons ambiguous. We cannot say the trial court abused its discretion.
Similarly, defendant does not object that the trial courts response to the jurys query was wrong. He argues that it exacerbated the error of allowing the prosecutor to raise the lack of alibi witnesses in closing argument. The note from the jury asked: "Can we give any weight in our deliberations that no alibi was provided for Dat Pham? How much weight, if any?" The trial court responded: "You may give the weight, if any, that you think it deserves in light of the other instructions that have been provided." We see no error. The trial courts response to the jury left the burden of proof on the prosecution and directed the jury to the instructional charge as a whole.
IV
Failure to Give Limiting Instruction
Finally, defendant claims his Sixth Amendment rights were violated by the trial courts failure to give a specific limiting instruction as to the use of evidence of certain statements by and letters from his codefendant Scott Nguyen. The trial court agreed to admit defendant Scott Nguyens statement to jail personnel and his letters to defendant Anh Vo and another inmate, but only as evidence against defendant Nguyen. Defendant Phams motion to sever his trial because of the admission of that evidence was denied. Defendant complains that CALJIC No. 2.07 [Evidence Limited to One Defendant Only] should have been given and not just CALJIC No. 2.09 [Evidence Limited as to Purpose].
The People respond that the jury instructions, viewed as a whole as they must be (People v. Frye (1998) 18 Cal.4th 894, 957), made it clear to the jury that the letters admitted were to be used against defendant Scott Nguyen only. The instructions given included CALJIC No. 2.06 on efforts to suppress evidence, which, when considered in conjunction with CALJIC No. 2.09 [Evidence Limited as to Purpose] made it apparent that the letters could only be considered as to defendant Nguyen. Instruction with CALJIC Nos. 6.11 [Conspiracy — Joint Responsibility], 6.21 [Liability for Acts Committed after Termination of Conspiracy] and 6.24 [Determination of Admissibility of Coconspirators Statements] conveyed to the jury that these statements had no value or weight as to defendant Pham. (See People v. Rodrigues, supra, 8 Cal.4th at p. 1135.) We see no possibility that the jury could have been drawn into using these admissions by defendant Nguyen as independent corroboration of Trans testimony against defendant Pham.
DISPOSITION
The judgments are affirmed.
WE CONCUR: Premo, Acting P.J., Bamattre-Manoukian, J.