Opinion
B162521.
11-19-2003
THE PEOPLE, Plaintiff and Respondent, v. ARNOLD NGUYEN, Defendant and Appellant.
Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Arnold Nguyen of the second degree murder of Nipha Chau and found true the allegation that the offense was committed for the benefit of a criminal street gang. Nguyen contends the trial court violated his federal constitutional rights to a fair trial by permitting the People to prove the gang enhancement allegation by evidence of crimes committed after the murder of Nipha Chau. Although we agree the admission of such evidence was error, Nguyen has waived his constitutional claim by failing to raise it at trial. We also reject Nguyens claim of ineffective assistance of counsel because we find no reasonable probability that the outcome would have been different if counsel had made a timely objection.
FACTUAL AND PROCEDURAL BACKGROUND
Nguyen was a member of the Black Dragons street gang. In June 1999 he had a physical altercation at South El Monte High School with Nam Nguyen (no relation to Arnold Nguyen), a member of the rival Oriental Thugs gang, also known as OTZ. In early 2000 Nguyen had another gang-related altercation with Nam Nguyen and several others at a shopping center in West Covina. Nguyen encountered Nam Nguyen at a "rave" party at the Los Angeles Coliseum on October 31, 2000. However, on that occasion the two agreed to "be cool with each other"; and there was no physical altercation. They also were "cool" when they saw one another on two subsequent occasions.
On May 26, 2001 Nam Nguyen attended a car show at the Long Beach Convention Center with a large group of friends, many of whom were OTZ members. Nguyen also attended the car show with a smaller group of his friends. The two encountered one another, and Nguyen told Nam Nguyen to leave. Nam Nguyen did not leave; instead, the two groups formed a circle and traded menacing stares. Nipha Chau, one of the members of Nam Nguyens group, led a chant of "West Side OTZ" and "OTZ, Oriental Thugs." Nguyen responded with an obscene reference to West Side OTZ, and Chau replied in kind with an obscene reference to "LABD" (the Los Angeles Black Dragons). At this point Nguyen took a step forward and fatally stabbed Chau in the stomach. He then fled the scene.
Nguyen was charged with murder with the special allegation the offense was committed for the benefit of, at the direction of and in association with a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(1). Nguyen testified on his own behalf and asserted he was acting in self-defense. The jury found him guilty of second degree murder and found the gang allegation true. Nguyen was sentenced to an aggregate state prison term of 26 years to life.
DISCUSSION
1. Nguyen Waived His Constitutional Claim by Failing to Raise It at Trial
Section 186.22, subdivision (b)(1), provides for sentencing enhancements for "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." Section 186.22, subdivision (f), provides, "As used in this chapter, `criminal street gang means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in a pattern of gang activity."
In order to prove a "pattern of gang activity," the People must prove the commission of two or more of the enumerated offenses by members of the gang within a statutorily-defined period. (§ 186.22, subd. (f).) To establish the required predicate offenses in this case, the People presented the expert testimony of Los Angeles County Deputy Sheriff Christopher Le, a member of the Sheriffs Asian Crime Task Force who specialized in dealing with Asian gangs and Asian organized crime. Deputy Le testified that on October 15, 2001 Black Dragon gang members Khoanh Lam and Anh Vuong pleaded no contest to making criminal threats (the criminal threats evidence). The offenses involved were alleged to have occurred on June 11 and June 12, 2001, that is, after the stabbing at issue in the present case. Deputy Le also testified that, on November 1, 1999, Black Dragon member Luc An pleaded no contest to two counts of robbery and one count of burglary in connection with a home invasion robbery.
Admission of the criminal threats evidence was error. (People v. Duran (2002) 97 Cal.App.4th 1448, 1458 ["Crimes occurring after the charged offense cannot serve as predicate offenses to prove a pattern of criminal gang activity."].) Nguyen argues the erroneous admission of this evidence deprived him of his constitutional right to due process of law under the Fifth and Fourteenth Amendments of the United States Constitution. Even if we were to accept the premise that the erroneous admission of the criminal threats evidence rises to the level of federal constitutional error (compare People v. Cudjo (1993) 6 Cal.4th 585, 611 [erroneous admission of evidence does not generally implicate the federal Constitution] with People v. Godinez (1993) 17 Cal.App.4th 1363, 1369 [use of later-occurring offenses to prove gang enhancement deprives defendant of notice "of the criminality and consequences of his conduct"]), Nguyen waived his federal constitutional claim by failing to raise it at trial. (People v. Davis (1995) 10 Cal.4th 463, 501-502, fn. 1.) Nguyen also waived any state law claims of evidentiary error by failing to raise them at trial. (People v. Hayes (1999) 21 Cal.4th 1211, 1261 [judgment based on erroneous admission of evidence will not be set aside unless timely and specific objection was made in the trial court]; People v. Webster (1991) 54 Cal.3d 411, 453-454 [defendants failure to object to inadmissible evidence or request limiting instruction waived issue on appeal].)
2. Nguyen Has Not Established Ineffective Assistance of Counsel
Nguyen next asserts that his counsels failure to object to the admission of the evidence at issue constituted ineffective assistance of counsel, in violation of his Sixth Amendment right to counsel. A defendant claiming ineffective assistance of counsel must show not only that his or her counsels performance fell below an objective standard of reasonableness under prevailing professional norms but also that it is reasonably probable that, but for counsels failings, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674]; In re Jones (1996) 13 Cal.4th 552, 561.) Although it may well have been unreasonable for defense counsel to fail to object to the evidence of predicate offenses committed after the charged offense, Nguyen cannot meet his burden of showing prejudice.
Deputy Le testified without contradiction that the Black Dragons gang had as one of its primary purposes the commission of crimes. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 324 [gangs primary purpose may be proved by expert testimony].) In order to prove the predicate offenses required by section 186.22, the People presented evidence of a home invasion robbery by a Black Dragons member in late 1999. That evidence, combined with the evidence of the crime charged in the present case, was sufficient to satisfy the predicate offenses requirement of section 186.22, subdivision (e). (People v. Gardeley (1996) 14 Cal.4th 605, 625 [charged crime may serve as a predicate offense].) Moreover, there was overwhelming evidence, including the testimony of Nam Nguyen and Nguyen himself, to establish a gang motivation for Chaus murder. Accordingly, there is no reasonable probability the outcome of the trial would have been different if Nguyens counsel had successfully objected to the challenged evidence.
3. The Trial Courts Apparent Misreading of a Jury Instruction Was, At Most, Harmless Error
Finally, Nguyen claims the trial courts apparent misreading of jury instructions relating to the gang enhancement constituted reversible error. The written jury instructions provided in part, "The phrase `primary activities, as used in this allegation, means that the commission of one or more of the crimes identified in the allegation, be one of the groups `chief or `principal occupations. This would of necessity exclude the occasional commission of identified crimes by the groups members." (CALJIC No. 17.24.2; see People v. Sengpadychith, supra, 26 Cal.4th at p. 323.) However, when the trial court read the instructions to the jury, it apparently inadvertently substituted the word "include" for "exclude" and stated, "This would of necessity include the occasional commission of identified crimes by the groups members." Neither the prosecutor nor Nguyens attorney noticed this misstatement; and neither called the error to the courts attention.
Where the written instructions received by the jury are correct, the trial courts misreading of those instructions "is at most harmless error." (People v. Box (2001) 23 Cal.4th 1153, 1212; People v. Osband (1996) 13 Cal.4th 622, 687.) The instructions given to the jury were complete and accurate in their written form and included CALJIC No. 17.45, which instructed the jurors that they were "to be governed only by the instruction in its final wording." As the Supreme Court held in Osband, "This direction reminded the jurors that it is difficult to recite complicated and lengthy written material verbatim and that the carefully prepared and reworked written text should guide them." (Osband, at p. 687.) The trial courts apparent misreading of the jury instructions, therefore, does not compel reversal.
DISPOSITION
The judgment is affirmed.
We concur: JOHNSON, J., WOODS, J. --------------- Notes: All statutory references are to the Penal Code.