Opinion
G044609
06-21-2012
THE PEOPLE, Plaintiff and Respondent, v. QUANG VAN QUAN, Defendant and Appellant.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and Marvin E. Mizell, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 06CF2227)
OPINION
Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Quang Van Quan of three counts of first degree murder and found true two special circumstance allegations that the murder took place during the commission of burglary and robbery or attempted robbery. (Pen. Code, §§ 187, subd. (a),190.2, subd. (a)(17)(A) [robbery], (a)(17)(G) [burglary]; all statutory citations are to the Penal Code unless noted.) Quan contends the trial court erred by failing to find a prima facie case of prosecutorial race discrimination during jury selection, the prosecution's introduction of "surprise evidence" violated his right to a fair trial and the effective assistance of counsel, and the trial court erred by instructing with CALCRIM Nos. 337 and 359. For the reasons expressed below, we affirm.
I
FACTUAL AND PROCEDURAL HISTORY
On May 29, 2006, Garden Grove police officers found the bodies of Phong Le, his wife Trisha Lam, and Lam's six-year-old son Tommy in separate upstairs bedrooms of the family's Garden Grove home. Le and Tommy wore pajamas. The victims suffered numerous shallow and deep stab wounds to the head, neck, and back, which would have caused extreme pain and suffering. The assailant or assailants bound the victims' hands with wire, and stuffed a baby's bib in Lam's mouth, covering it with duct tape. Lam had clenched her fist tight enough to drive her fingernails into her palm. The officers found the couple's infant daughter Kaitlin, Quan's goddaughter, in the master bedroom dehydrated and soiled in urine and feces but otherwise unharmed. The front door was unlocked and there was no sign of forced entry.
Le, a former member of the Oriental Boys gang, had recently told a friend, Tung Nguyen, he felt anxious because he owed people money, and they were after his family and him. Security cameras and monitors were placed throughout Le's residence, and he had recently changed the locks. Le carried a gun in his waistband, which he sometimes kept under a mattress.
Quan, an erstwhile associate of a different gang, and Le met each other in prison in the 1990's. In May 2006, Quan lived in Houston, Texas. On May 17 or May 19, 2006, he visited probation and immigration authorities in Los Angeles.
Cellular tower records showed that on May 26 at 7:50 p.m., Quan's cell phone received a call from a cell phone belonging to Quan's wife, Michelle Hotodd, from the vicinity of Rosemead, California. At 10:03 p.m., a call from the Rosemead area was placed from a prepaid cell phone, purchased on May 21 and used by Quan on the night of the killings, to Le's cell phone. Over the next 25 minutes, numerous calls were placed from Quan's prepaid cell phone and Hotodd's cell phone to Le's cell and home phones from locations approaching Garden Grove. At 10:46 p.m., 10:47 p.m., and 10:50 p.m., a call was placed from Hotodd's cell phone to Le's cell phone from a location near Le's home. At 10:55 p.m., Quan, using Hotodd's cell phone near Le's home, left a voicemail message on Le's cell phone in Vietnamese: "Phong, call me back, okay. The kid has a problem. We need to have a place tonight. All right. A mi. Call me back tonight." A call was placed from Le's cell phone to Hotodd's cell phone at 10:57 p.m., and to Le's cell phone voicemail at 10:58 p.m. and 10:59 p.m. At 11:04 p.m., a call from Hotodd's cell phone to Quan's cell phone originated from a location near Le's home. At 11:09 p.m., a call was placed from Hotodd's cell phone to Le's cell phone. Le's cell phone placed a final call at 11:15 p.m. A call from Hotodd's cell phone to Quan's cell phone occurred at 1:40 a.m., from a location near Le's home.
Alerted by a concerned coworker, Garden Grove police officers made a welfare check at his home on May 29th and discovered the bodies. The Le's master bedroom had been ransacked. The safe was open and two of the victims' cell phones, and a laptop computer, were missing. Cabinet doors in the upstairs bathrooms were open. Investigators found a gun under the mattress in the southeast bedroom, where Le's body was found. They found an IOU from Le to Quan buried in a stack of papers on a desk. They also found baggies, drug pipes, and a drug scale in the southeast bedroom, and a pair of latex gloves, one inside the other with a rubber band around the wrist area, behind a door. DNA on the exterior of the gloves came from Le, Lam, and Tommy, and the DNA on the interior of the gloves belonged to an unknown person. In the kitchen, investigators found $66,000 in gold Krugerrand coins hidden in a cabinet. Le had methamphetamine in his system at the time of his death.
In early June 2006, Garden Grove police officers travelled to Houston. They found Quan at conducting a garage sale at his residence. One of the officers posed as a customer, while the other officer dialed Hotodd's cell phone, which Quan answered.
Officers arrested Quan on July 12, 2006. They interviewed him on several occasions after he waived his Miranda (Miranda v. Arizona (1966) 384 U.S. 436) rights. In a July 12 interview, Quan claimed he had last seen Le in Garden Grove in March. He considered Le family, and Le was godfather to Quan's son. Quan said Le owed a man named Tam money, and Tam had people "sweating" Le for repayment. Le also owed money to the owner of a local business called Magic Mattress, and a Black Dragon gang member nicknamed "Saigon" was demanding repayment of $40,000 or $80,000. Quan sold his van and borrowed money from friends to loan Le about $80,000. In May, he came to California to check in with immigration officials. He stayed a few days to a week before returning to Texas.
Later in the interview, Quan acknowledged Le gave him an IOU. To make the loan, Quan claimed he had borrowed the money from an organized crime boss named Peter Geo Wang (Peter). Quan described Peter as dangerous. The gangsters warned Quan and Le to repay the money quickly, and threatened to kill them and their family.
After the officers confronted Quan with the cell phone records, Quan explained he took Peter,"Fat Boy," and another man to Le's house, but Le was not home. Quan phoned Le to tell him the men wanted to speak with him. Le arrived home a short time later. Quan initially stated he waited outside while the men spoke with Le in the driveway before accompanying Le inside. While he waited outside, he phoned his wife, then departed. Quan stated Peter agreed to forgive Quan's debt because Quan took them to Le's home. Quan denied a recently acquired laptop computer came from Le's home, explaining he bought the computer at a market "under the table."
During a July 14 interview, Quan again denied he took the laptop from Le's house. Quan asserted it was Peter and his cohorts who called Quan on a prepaid cell phone. Quan merely took them to Le's house to discuss Le's $80,000 debt to Peter. Le confided to Quan he would tell the men he had borrowed the money and provide a promissory note. Quan then drove to Le's house and the others followed in another vehicle. Le asked Quan to tell the men to speak with him inside the house. Quan claimed he stayed outside. After a while, Le emerged from his house and told Quan the men wanted to know where the money was located. Le then asked Quan to leave.
Quan repeated his assertion he departed after calling his wife, but when pressed by the detectives, he admitted he entered the house after Le came outside. Le angered the men when, pressed about repayment, he exclaimed, "Fuck it. When I have it, then I will pay it." Peter and Le directed Quan to leave the house. Quan denied knowing the men intended to kill Le.
During a second interview later in the day on July 14, Quan elaborated on his earlier statements. After entering Le's house through the garage, Quan claimed the men confronted Le and demanded their money. Le asked for more time, explaining he gave the money to his aunt, but she no longer had it. Peter told him he did not care. Le responded he would pay as soon as he could, and he was currently trying to refinance his home. Peter asked to see the refinance papers. The men accompanied Le to the upstairs bedroom to get the refinance papers off his laptop computer. Fat Boy pointed a gun at Le and told him to get up and not to move. Fat Boy tied Le's hands with wire, made him sit on a chair, and left the room. Peter, who wore gloves, refused Le's request for more time. About 30 minutes later, Fat Boy returned and reported he could not find anything. Quan asked the men "what you guys doing?" Peter responded, "none of your fucking business," and told Quan to "[g]et the fuck out of here, it's none of your concern now." Quan departed. He heard a thump, as if someone fell. Quan insisted Peter told him they only wanted to talk to Le about repayment and he had no idea the men intended to rob, burglarize, or murder Le and his family.
A Federal Bureau of Investigation agent prepared a photo lineup containing a photograph of Wang. Quan identified the man in the photo as Peter, whose real name was Gaorong Xiao. At the time of the crimes, federal authorities supervised Peter, and he was wearing a global positioning system (GPS) ankle bracelet. The GPS device showed Peter was home in Walnut, California, when the murders occurred. There was no evidence showing someone tampered with or removed Peter's GPS bracelet.
Finally, the prosecution presented evidence Quan previously committed commercial and home invasion robberies with other perpetrators. He and his accomplices used guns, bound the victim's hands, ransacked the premises, and stole money and jewelry.
In October 2010, a jury convicted Quan as noted above. In December 2010, the trial court sentenced Quan to three consecutive sentences of life in prison without possibility of parole.
II
DISCUSSION
A. The Prosecutor Did Not Use Peremptory Strikes in a Discriminatory Manner
Quan contends the trial court erred in denying his motion challenging the prosecutor's use of peremptory challenges. He asserts the prosecutor tainted jury selection and his trial in a manner repugnant to the state and federal Constitutions by using peremptory strikes to discriminate against Hispanic jurors. (People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 (Batson). We disagree.
Jury selection began on September 27, 2010, with a panel of approximately 110 jurors after hardship excusals. The court called 20 jurors selected randomly to sit in the jury box. The court advised the prospective jurors the attorneys could not excuse them based on race or ethnicity.
Hispanic female juror S.G. was in the first group. Born in the United States, she worked as an office assistant for the civil division of the superior court. She and her husband, a landscaper, had a 12-year-old daughter. She had completed the 11th grade, and had never served on a jury. Although she had a brother in prison, and another in jail, she believed the police and court system had treated her brothers fairly and she claimed she could be impartial. The prosecutor asked only a few questions directed at S.G. concerning whether she and the other jurors would be able to follow the law concerning felony murder, even when there was no intent to kill. S.G. responded, "Yes."
After the parties exercised several peremptory challenges, juror A.Z. entered the jury box. She was Mexican-American, born in the United States, lived in Anaheim, had some high school education, and worked in a bank research department. She and her husband, a truck driver, had three sons ages 21, 16, and 14. She had never served on a jury. Her nephew was a juvenile corrections officer in Orange. Asked if she could be "fair and impartial," she responded "I believe so." She also acknowledged in response to defense counsel's questions that it would be possible for her to vote not guilty. The prosecutor did not ask her any questions.
The prosecutor used his fifth peremptory challenge to excuse S.G. After three more peremptory challenges by the prosecutor, A.Z. remained in the jury box, as did a second Hispanic juror in seat No.12.
After a recess, juror E.R. entered the jury box. E.R. identified himself as Hispanic. He worked as an engineering manager at a satellite manufacturing company, and he had attended junior college. He and his wife, a payroll analyst, had two children ages 35 and 34. He had never served on a jury. Although his daughter had suffered a conviction for driving under the influence (DUI), he had "no opinion" whether she was treated fairly because he "wasn't involved." He also had three brothers and a sister who had been incarcerated for federal crimes, but knew little about the nature of their offenses. E.R. revealed one of his siblings was incarcerated for gang-related violence. He remained in contact with one brother and believed it was his siblings' own decisions that got them into legal trouble. Despite the incarcerations of family members, E.R. asserted he could be fair and impartial and would follow the law. He stated the prosecutor should not worry about having him on the jury.
With his tenth peremptory challenge, the prosecutor excused A.Z. After the defense excused two prospective jurors, the prosecutor used his eleventh peremptory challenge to excuse ER. Defense counsel objected to the discharge of the three jurors on Batson/Wheeler grounds at a sidebar conference. The trial court denied the motion without asking the prosecutor to provide reasons, noting E.R. had four relatives in prison.
Voir dire resumed. Two Hispanic jurors remained after the parties concluded exercising peremptory challenges, including a woman identifying herself as Cuban-born, and the juror referenced above in seat No. 12. The court later noted for the record the jury consisted of nine white males, three white females, and two Hispanic females. The defense used peremptory challenges to excuse six Hispanic jurors.
Defense counsel made Batson/Wheeler motions after the prosecutor excused Vietnamese jurors, and an African-American juror. Although the court did not find a prima facie case of discrimination, the prosecutor explained his reasons, and the court denied the motion.
Quan argues a "statistical analysis supports a conclusion that a prima facie case of discrimination has been made. Here, Hispanics made up only 18[percent] of the jury venire. . . . But the prosecutor used [27 percent] of his peremptory challenges on the Hispanic jurors . . . . Moreover, the prosecutor discharged 50[percent] (3 out of 6) of the Hispanics in the jury box. . . . In comparison, of the 27 non-Hispanics called to the box, the prosecutor's strike rate was only 29[percent] (8 out of 27)." (See People v. Cowan (2010) 50 Cal.4th 401, 447-448 [prima facie case where strike rate against African-Americans was 10 percent higher than percentage of African-Americans in the venire].) Quan also argues relevant circumstances beyond the statistics support an inference of discrimination. He cites the discharged prospective jurors' statements they could be fair and impartial, the prosecutor's failure to ask S.G. questions about her brothers' incarcerations, and the failure to ask A.Z. any questions. (See Batson, supra, 476 U.S. at pp. 96-97 [prosecutor's questions and statements during jury selection may support or refute an inference of discriminatory purpose]; People v. Taylor (2010) 48 Cal.4th 574, 615 [prosecutor's failure to engage the prospective juror in more than "desultory voir dire" or ask any questions is a significant factor in determining whether a prima facie case has been established].)
"'Exercising peremptory challenges because of group bias rather than for reasons specific to the challenged prospective juror violates both the California Constitution and the United States Constitution.'" (People v. Cleveland (2004) 32 Cal.4th 704, 732; see generally Batson v. supra, 476 U.S. at p. 88 ; Wheeler, supra, 22 Cal.3d at pp. 278-282 (Wheeler).) Subject to rebuttal, the prosecutor is presumed to have acted properly, and the burden rests on the challenger to demonstrate discrimination infected the trial. (People v. Bonilla (2007) 41 Cal.4th 313, 341 (Bonilla).) To do so, a defendant must first "make out a prima facie case 'by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' [Citation.] Second, once the defendant has made out a prima facie case, the 'burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes. [Citations.] Third, '[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful . . . discrimination.' [Citation.]" (Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted; People v. Thomas (2012) 53 Cal.4th 771, 793-794 (Thomas).)
When a trial court denies a Batson/Wheeler motion based on the challenger's failure to make a prima facie case of discrimination, we review the record to determine if substantial evidence supports the trial court's ruling. (People v.Yeoman (2003) 31 Cal.4th 93, 116.) We must affirm if the record suggests reasonable grounds for the prosecutor's decision to strike the prospective jurors. (Ibid.) In asserting a prima facie case, the defendant must "make as complete a record as feasible." (People v. Boyette (2002) 29 Cal.4th 381, 422.) It is the challenger's burden to establish a complete record showing bias. (Ibid.)
Here, we may infer the trial court found Quan failed to establish a prima facie case of discrimination because it denied Quan's motion without asking the prosecutor why he excused the three Hispanic jurors. Substantial evidence supports the trial court's ruling because the record suggests the prosecutor exercised his peremptory challenges for nondiscriminatory reasons. S.G. had one brother in prison and another in jail. E.R. had four incarcerated siblings, a daughter who had suffered a DUI, and family gang connections. Although the jurors' stated they could remain impartial, a prosecutor reasonably could fear that a juror who had a close family member arrested, prosecuted, and incarcerated might subconsciously harbor bias against law enforcement. (See People v. Cornwell (2005) 37 Cal.4th 50, 70 [excused juror's voir dire disclosed numerous reasons for a prosecutor to excuse her, including personal experience with an allegedly unfair homicide prosecution of a close relative]; People v. Douglas (1995) 36 Cal.App.4th 1681, 1690.); People v. Garceau (1993) 6 Cal.4th 140, 172; People v. Cummings (1993) 4 Cal.4th 1233, 1282; People v. Walker (1988) 47 Cal.3d 605, 626
The nondiscriminatory reasons supporting the prosecutor's challenge to A.Z. are not as obvious as those supporting the challenge to S.G. or E.R. But given A.Z.'s low educational level and failure to have previously served on a jury, the prosecutor may have concluded she would have difficulty understanding the complexities of a case involving a triple murder with special circumstances, and numerous theories of liability, including premeditation and deliberation, accomplice liability, and felony murder. (See People v. Reynoso (2003) 31 Cal.4th 903, 923-925.)
Finally, the prosecutor repeatedly accepted the jury as constituted with Hispanic juror No.12 on the panel, and two Hispanic women eventually served on the jury. This suggests that race was not a motive in the prosecutor's peremptory challenges of the other three jurors. (Thomas, supra, 53 Cal.4th at p. 796 [prosecutor's pattern of excusals and acceptances during voir dire did not support an inference of discrimination where prosecutor accepted four African-American jurors]; People v. Lenix (2008) 44 Cal.4th 602, 629; People v. Carasi (2008) 44 Cal.4th 1263, 1292.)
As for Quan's statistical argument, Thomas is dispositive. There, African-Americans constituted 26 percent of the prospective jurors who had been called into the jury box (15 out of 61) and the prosecutor had exercised 37 percent of his challenges (six out of 16) against African-Americans. The court held, "This disparity is not significant enough, in itself, to suggest discrimination. (See Carasi, supra, at pp. 1291, 1295 [no prima facie case of gender discrimination even though prosecutor used 20 out of 23 peremptory challenges against female prospective jurors]; People v. Bonilla (2007) 41 Cal.4th 313, 345 [no prima facie case of gender discrimination even though women represented 38 percent of the jury pool and the prosecutor used 67 percent of his strikes against women].)" (Thomas, supra, 53 Cal.4th at p. 796.) Here, the prosecutor's acceptance of the jury with two Hispanic women "strongly suggests that race was not a motive" in the prosecutor's challenges to other jurors from the same cognizable group. (People v. Lenix (2008) 44 Cal.4th 602, 629.) We therefore conclude the record does not support an inference of discrimination. B. Stricken Testimony That Le Told Nguyen He Stole $300,000 from a Drug Dealer Does Not Require Reversal
Quan next contends the prosecution introduced "surprise" or different evidence at trial that undercut his defense and violated his state and federal constitutional rights to due process and the effective assistance of counsel. As we explain below, the trial court struck the testimony, and ordered the jury to disregard it. We find no basis to conclude Quan's state and federal constitutional rights to due process and the effective assistance of counsel were violated.
At the November 2007 preliminary hearing, the prosecutor theorized the killings occurred during an attempt to collect $80,000 that Le had borrowed from organized crime figures through Quan. At a pretrial hearing in September 2010, the prosecutor sought permission to introduce Le's hearsay statements to Nguyen. The prosecutor offered to prove that Nguyen would testify Le told him he was anxious and worried "they were after his wife and children because he could not pay back the money." The prosecutor argued the evidence demonstrated Le's state of mind at the time of the crimes, explained why he had surveillance cameras throughout the house, and why he would have only opened the door for a family friend like Quan. Neither the prosecutor nor defense counsel informed the court that Nguyen knew the amount of the alleged debt. The court admitted the evidence over Quan's hearsay objection.
During opening statements, the prosecutor informed the jury the evidence would show the murders occurred while Quan was attempting to collect an $80,000 debt, and that Quan took Peter to Le's home to discuss why Le was not making his "payments on the 80,000 dollar loan."
Quan's attorney countered the evidence would show Quan had borrowed the money from Peter to loan to Le, and while he took Peter to Le's home, he had no idea Peter planned to kill Le. Quan's lawyer also attacked the state's theory, asserting it was unlikely the murders occurred over $80,000 because the $60,000 in Krugerrands would have "[gone] a long [way]" to settling the debt, and Le would have given them to Quan to save his wife and son. In other words, "Something else was happening there that night."
Nguyen testified on the second day of trial that Le said he "owed people money" and "was stressed because they were after his wife and children." The prosecutor asked Nguyen if Le admitted having "ripped off a big guy or a big drug dealer for about $300,000?" Nguyen answered, "Yes." Quan did not object to this question or several others concerning Le's statements about the incident.
After cross-examination, defense counsel objected at sidebar that the "$300,000 was not part of the court's" pretrial ruling. She asserted she and the prosecutor had addressed the evidence previously and the prosecutor stated he was not going to mention it. She explained, "if you have someone who is owed $80,000 and there is $66,000 in gold Krugerrands, that is one thing, but if you have someone owed $300,000 and they are killed, that is quite another."
The prosecutor responded that when he told defense counsel in chambers he was going to move to admit Nguyen's testimony concerning Le's statement, she replied "oh, great, that means I can get into the $300,000 drug ripoff." The prosecutor responded to her if "you want to get into that, great. And she looked me in the eye and said, oh, you bet I am going to get into that." So the prosecutor asked Nguyen about the drug ripoff to further explain that Le "was on guard, he was paranoid . . . ." The prosecutor noted this information was in the police reports given to defense counsel.
Defense counsel denied telling the prosecutor she intended to ask Nguyen about the $300,000 Quan told him he stole from a drug dealer. Rather, she and the prosecutor had been "taunting" each other about Nguyen's testimony, but she denied wanting that statement in evidence. She noted Le's statement, if offered for the truth, was hearsay. The prosecutor stated "[we] have a total opposite, polar opposite recollection of what [defense counsel] said."
The court remarked Le's statement concerning the $300,000 theft was not part of the pretrial ruling and there was no relevant nonhearsay purpose for the evidence. The court denied Quan's motion for a mistrial and instructed the jury to disregard the testimony as follows: "Before we do go home, there was some - and you can well imagine a lot of stuff that this witness [Nguyen] just said came flying through, wasn't supposed to come in, things were flying fast and furious, so I am going to tell you to disregard certain portions of his testimony. [¶] There was a discussion, there was some testimony that this witness was attributing some statements to [Le], that he owed money and they had ripped off a big guy, a big drug dealer for $300,000. They set it up to look like a drug deal. All that is stricken, disregard it, do not consider it for any purpose. It is otherwise inadmissible hearsay, and should not have come in, so you are ordered to disregard that."
Quan argues the prosecution's "surprise introduction of evidence that Le owed $300,000 and the trial court's refusal to grant a mistrial violated [his] right to due process and the effective assistance of counsel. At the point when this information was introduced, defense counsel had already committed defendant to a defense premised on evidence that Le only owed $80,000. Necessarily, that theory was the product of what defense counsel knew prior to trial and in line with the evidence offered in the state's pre-trial offer of proof. Under the facts of this case, the court's admonition could not cure the harm and reversal is required."
Quan bases his theory of "state interference" with the right to counsel on Strickland v. Washington (1984) 466 U.S. 668, 686, which held that "[g]overnment violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense." (See also Geders v. United States (1976) 425 U.S. 80 [bar on attorney-client consultation during overnight recess]; Herring v. New York (1975) 422 U.S. 853 [court barred summation at bench trial]; Brooks v. Tennessee (1972) 406 U.S. 605, 612-613 [requirement that defendant be first defense witness]; Ferguson v. State of Georgia (1961) 365 U.S. 570, 593-596 [bar on direct examination of defendant].) Quan asserts, "where trial counsel makes critical tactical decisions based on an awareness of the charges against a client and the available defenses, and the state or trial court undercuts the basis for those tactical decisions by injecting new theories of culpability or eliminating defenses, the defendant has been denied his right to the meaningful assistance of counsel."
Quan bases his argument on the assumption the prosecutor deceived defense counsel about his plans to introduce evidence Quan owed $300,000 to a drug dealer he "ripped off." The trial court, however, did not come to this conclusion, apparently viewing the dispute about the introduction of this evidence as a misunderstanding between counsel. Substantial evidence supports the court's implicit finding, and we are in no position to second-guess this determination.
After defense counsel claimed the prosecutor agreed not to mention Le's statement of Nguyen about the $300,000 figure, the following exchange occurred at sidebar: "[Prosecutor:] When we were back in chambers, your honor, I told [defense counsel] that I was going to make a motion to have that statement included as a state of mind of the declarant. [Defense counsel] said to me, oh, great, that means I can get into the $300,000 drug ripoff. I said, if you want to get into that, great. And she looked me in the eye and said, oh, you bet I am going to get into that. [¶] So when I asked him and I talked to him on the stand, he talked about a drug ripoff, that was it. I don't think it changes a thing. [Defense counsel] had all that information. It is in all the police reports, it is nothing new. And I don't think it changes anything. The court's rational basis for allowing it in is to say he was on guard, he was paranoid, and that was what was done. I don't' think it has changed anything.
"[Defense counsel:] It is notit is hearsay. The only reason you were allowed to lead the witness was because the fear on my part that he would say the worst part of the statement that he made to Investigator Erickson. And clearly I think that from my perspective as his defense lawyer, I couldn't run the risk of having him blurt out those things before the jury. So allowing you to lead seemed like the most, the best of a bad situation. And I didn't have any objections to that, but not the $300,000 statement.
"[Prosecutor:] Didn't you look me in the eyes when we were back in chambers and say, you bet I am going to get into that, you said that to me blatantly.
"[Defense counsel:] We have been taunting each other over the $300,000 the entire time.
"[Prosecutor:] Didn't you say you were going to get into that, and I said okay?
"[Defense counsel:] Actually [prosecutor], I did not. When you said—
"[Prosecutor:] Okay.
"[Defense counsel:] When you said what you said, my response was, you better believe you would like to have me do it.
"[Prosecutor:] Okay.
"[Defense counsel:] And that's the way I saw that statement. Of course you would want to have that information in. And I would not want to have that.
"[Prosecutor:] We have a total opposite, polar opposite recollection of what you said.
"[Defense counsel:] Okay.
"[Prosecutor:] Okay.
"[Defense counsel:] Be that as it may, it still puts us where we are right now."
Defense counsel was aware of the information about the $300,000 figure because it was described in the police reports she received before trial. Absent a prosecutorial agreement or court ruling to exclude the evidence, counsel must assume the prosecutor might seek to elicit Nguyen's testimony on this point. Any misunderstanding between the prosecutor and counsel could have been avoided had counsel moved to exclude this specific evidence or informed the court of the prosecutor's purported agreement, but she did not do so. Under these circumstances, the prosecutor did not infringe Quan's constitutional rights because defense counsel knew before trial that Nguyen claimed he told him the debt was $300,000, and based on his conversations with defense counsel, he did not agree to withhold evidence about the $300,000 theft from a drug dealer.
We also disagree with Quan's contention the trial court violated his due process rights when it denied his mistrial motion. A court must grant a mistrial if the defendant's right to a fair trial has been irreparably damaged. (People v. Dement (2011) 53 Cal.4th 1, 40.) The trial court has broad discretion in determining a particular incident is incurably prejudicial. (Id. at pp. 39-40.)
The trial court here determined an admonition would suffice and directed the jury to disregard Nguyen's reference to Le's $300,000 comment, explaining that the evidence was stricken because it was inadmissible hearsay. A jury is presumed to follow an admonition to disregard evidence that had been stricken, and we must presume it did so in the absence of contrary evidence. (People v. Cruz (2001) 93 Cal.App.4th 69, 73 [appellate court must presume the jury "'meticulously followed the instructions given'"].) There is nothing in the record to rebut the presumption or infer the jury ignored the court's admonition. The court acted reasonably in concluding these remedial steps would cure any potential prejudice. Quan therefore has failed to carry his burden on appeal to show any violation of his constitutional rights. C. CALCRIM No. 337
Quan next contends the trial court erred in providing a version of CALCRIM No. 337. The instruction provided in relevant part: "When . . . Nguyen testified, he was in custody. The fact that a witness is in custody does not by itself make a witness more or less believable. Evaluate the witness's testimony according to the instructions I have given you." The Use Note to CALCRIM No. 337 provides, "For an in-custody witness, give this instruction on request." The clerk's transcript reflects the court provided the instruction on the court's motion.
Quan argues the instruction directed the jury not to consider Nguyen's credibility, which was a crucial issue in the case. Quan contends the instruction undermined his defense that Nguyen had lied because the prosecution had agreed to place Nguyen in a witness protection program. Quan cites cases where the trial court erred in denying a criminal defendant the right to present a defense and to have the jury determine material issues, and where instructions interfered with a jury's ability to consider favorable defense evidence.
An instruction is not considered in isolation, but in the context of the court's entire charge to the jury. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) To succeed on a claim of instructional error, a defendant must show that "there is 'a reasonable likelihood' the jury understood the instructions as the defendant asserts," considering "the specific language challenged, the instructions as a whole and the jury's findings. [Citations.]" (People v. Cain (1995) 10 Cal.4th 1, 36; see also Estelle v. McGuire (1991) 502 U.S. 62, 72.)
There was no apparent reason to shield Nguyen's testimony from any adverse inference that might arise from his custodial status. On the other hand, Quan cites nothing suggesting custody status by itself is a relevant factor in assessing credibility. The instruction did not enhance Nguyen's credibility by merely mentioning his custody status. The plain language of the instruction shows it to be entirely neutral on that issue. The instruction advised the jury to evaluate the witness's testimony according to other instructions provided. In that vein, the court instructed with CALCRIM No. 226 that in assessing witness credibility it could consider "anything that reasonably tends to prove or disprove the truth or accuracy of that testimony." CALCRIM No. 226 listed several factors to evaluate credibility, including the witness's bias or personal interest in the result, and whether the witness had been convicted of a felony or engaged in other conduct reflecting on the witness's believability. The court also provided CALCRIM No. 316 addressing a witness's commission of a felony or other misconduct. CALCRIM No. 337 did not preclude the jury from considering Nguyen's potential bias in favor of the prosecution based on an arrangement to relocate him after he served his prison sentence for criminal threats against his girlfriend. We conclude there is no reasonable likelihood the jury interpreted the instruction in the manner urged by Quan. Accordingly, defendant's substantial rights were not affected by CALCRIM No. 337 and his claim of instructional error fails. (See Boyde v. California (1990) 494 U.S. 370, 378; People v. Kelly (1992) 1 Cal.4th 495, 525.) D. CALCRIM No. 359
Finally, Quan contends the trial court erred by providing the following italicized portion of the corpus delicti instruction, CALCRIM No. 359: "The defendant may not be convicted of any crime based on his out-of-court statements alone. You may only rely on the defendant's out-of-court statements to convict him if you conclude that other evidence shows that the charged crime was committed. [¶] That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. [¶] The identity of the person who committed the crime and the degree of the crime may be proved by the defendant's statements alone. [¶] You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt." (Italics added.) The clerk's transcript reflects the prosecution requested the instruction, to which Quan did not object.
As noted above, a claim of instructional error is evaluated by considering the instructions as a whole in determining whether there is a reasonable likelihood the jury understood the instruction in a manner that violated the defendant's rights. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Instructions are ambiguous or misleading if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words. (People v. Campos (2007) 156 Cal.App.4th 1228, 1237.)
Under the corpus delicti rule, every conviction must be supported by at least slight evidence of the crime aside from or in addition to the defendant's extrajudicial statements, and the jury must be so instructed. (People v. Alvarez (2002) 27 Cal.4th 1161, 1165.) The purpose of the rule is to ensure a person is not falsely convicted of a crime that never occurred. (Id. at p. 1169.) The rule does not require independent evidence of every physical act constituting an element of an offense, so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. (Ibid.) If the necessary quantum of independent evidence is present, the jury may consider the defendant's extrajudicial statements for their full value to strengthen the case on all issues. (Id. at p. 1171.) Proof of the corpus delicti does not require proof of the degree of a crime. (People v. Martinez (1994) 26 Cal.App.4th 1098, 1104; People v. Miller (1951) 37 Cal.2d 801, 806 [in a prosecution for homicide in the course of robbery, it is enough for the prosecution to prove the corpus delicti of homicide; no need to prove the corpus delicti of the robbery, which merely relates to the degree of the homicide]; People v. Cantrell (1973) 8 Cal.3d 672, 680 [felony-murder; prosecution need not establish corpus delicti of underlying felony before introducing defendant's extrajudicial statements]; Ureta v. Superior Court (1962) 199 Cal.App.2d 672, 676 [malice aforethought not part of the corpus delicti in a prosecution for murder].)
Although CALCRIM No. 359 correctly states the law (People v. Reyes (2007) 151 Cal.App.4th 1491, 1498), Quan argues the instruction lessened the state's burden of proof on the first degree murder counts because his "statements did not offer any evidence to show the degree of the crimes. Telling the jury it could rely entirely on [his] statements to infer the degree of these three crimes directly undercut the state's burden to prove the degree of these charges beyond a reasonable doubt."
We reject Quan's argument that CALCRIM No. 359 reduced the prosecution's burden of proof because it informed the jury that it may consider a defendant's extrajudicial statements alone to set the degree of the crime. CALCRIM No. 359 did not instruct the jury it could infer the degree of the murders relying only on Quan's statements. The portion of the instruction Quan finds objectionable merely informs the jury the corpus delicti rule does not preclude reliance on the defendant's out-of-court statements to prove the degree of the crime beyond a reasonable doubt. If Quan's statements provided no evidence of the degree of the murders, then the jury must have looked to other evidence establishing premeditation, torture, or felony murder (including Le's indebtedness to Quan and gang figures, and the vicious injuries suffered by the victims). The trial court instructed the jury with CALCRIM No. 220, which defines reasonable doubt, informs the jury that it must consider all the evidence, and instructs the jury the defendant is entitled to an acquittal unless the evidence proves him guilty beyond a reasonable doubt. Further, CALCRIM No. 359 advised the jury it could "not convict the defendant unless the People have proven [his guilt] beyond a reasonable doubt." CALCRIM No. 521 told jurors they must decide whether defendant committed first degree murder, but could not find Quan guilty of first degree murder unless all the jurors agreed the prosecution proved he committed first degree murder by premeditation and deliberation, torture, or under a felony murder theory, and "The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than second degree murder." Reasonable jurors would have understood from the entirety of the charge that the prosecution was required to prove the degree of the crime beyond a reasonable doubt after examination of all the evidence. CALCRIM No. 359 was not misleading, and it did not reduce the prosecution's burden of proof concerning the degree of the murder. E. Cumulative Error
Because we find no merit in Quan's evidentiary or instructional challenges, his cumulative error argument also fails. Absent errors to cumulate, the cumulative error doctrine does not apply. (People v. Staten (2000) 24 Cal.4th 434, 464.)
III
DISPOSITION
The judgment is affirmed.
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ARONSON, J.
WE CONCUR:
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RYLAARSDAM, ACTING P.J.
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MOORE, J.