Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed, Super. Ct. No. 05ZF0082
Richard L. Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Pamela Ratner Sobeck, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
Defendant Hieu Ho Trong Thai challenges his convictions for first degree murder, attempted premeditated murder, and conspiracy to commit murder. Defendant contends the trial court erred in admitting evidence that four witnesses had previously invoked their right against self-incrimination in an earlier trial of one of defendant’s cohorts. Defendant further contends the court’s error unfairly prejudiced his case and requires reversal of his conviction.
We agree the trial court erred in admitting evidence the witnesses had previously exercised their right against self-incrimination. Our decision in People v. Lopez (1999) 71 Cal.App.4th 1550 (Lopez), upon which the trial court relied, is inapposite. In Lopez, we concluded the trial court did not err when it allowed the jury to hear and consider a witness’s assertion of his right against self-incrimination because the witness previously had pleaded guilty and no longer held a valid privilege against self-incrimination. In the present case, the witnesses still retained a valid privilege at the time they refused to testify. We conclude, however, the trial court’s error does not require reversal because it is not reasonably probable defendant would have received a more favorable result absent the trial court’s error. Accordingly, we affirm the judgment.
I
Factual and Procedural Background
A. The AG Beating of Tu Tran and Initial Retaliation Attempts
In July 1999, defendant was a member of a street gang known as the Asian Crip Boys (ACB). Between 2:00 and 3:00 a.m. on July 2, 1999, certain ACB members and associates traveled to the Phuc Loc restaurant and encountered members of a rival street gang, the Asian Gang (AG). The AG members “mad dogged” the ACB members, yelled “‘fuck A.C.B.,’” and attacked a member of the ACB party, Tu Tran, punching and clubbing him. The AG members also smashed the windows of Tran’s car.
Frightened and angry, the ACB group left the restaurant and called ACB’s leader, Ca Le. Ca Le, accompanied by other ACB members, traveled back to the Phuc Loc Restaurant to look for AG members. Unable to locate any AG members at the restaurant, the group traveled to the apartment where Bao Tran, a known AG member, lived. Although not locating Bao Tran, Ca Le and another ACB member broke a window on Bao’s parked car. The group then traveled to the home of another AG member, but was unable to locate him.
B. AG Members Shoot at Ca Le
After the Tu Tran beating, Ca Le, accompanied by several ACB cohorts, drove to his apartment complex in an Acura Legend. As Ca Le parked the vehicle, another car pulled next to the Acura. Someone in the approaching car said in Vietnamese, “‘Motherfucker, shoot them for me.’” Immediately, gunfire erupted, shattering the Acura’s front driver and passenger windows. The shooter and his cohorts fled. As Ca Le pursued in his Acura, one of his accomplices fired a handgun at the shooter’s car.
C. ACB Members Pursue AG Members in Huntington Beach
On July 4, defendant and other ACB members drove in a caravan of four cars to Huntington Beach, and encountered some AG gang members. One of the ACB members exited his car with a gun in his hand, and approached the AG members as other ACB members yelled “‘fuck A.G.,’” and “‘shoot them.’” No shots were fired at that time, however. The ACB members chased after the AG members, but soon lost track of them. After returning from Huntington Beach, the group, including defendant, drove to the Bich Dao billiard hall. There, members of the group plotted “payback” against AG, and decided to visit the Phuc Loc Restaurant to hunt for AG members. Among the four ACB cars traveling to the restaurant was an Acura Legend, in which defendant was a passenger, and a Honda Accord, in which the victim, The Doan, was a passenger.
D. Shootout at the Phuc Loc Restaurant and Death of Doan
When the ACB group arrived at the Phuc Loc Restaurant, they encountered several AG members in the parking lot. After the groups exchanged shouts of “‘fuck A.G.’” and “‘fuck A.C.B.,’” gunfire erupted. The ACB group then took off, and the AG members drove in pursuit. During the gun battle, defendant fired at least five shots from the front seat of the Legend, some out of the vehicle’s sunroof. At some point in the battle, Doan, riding in the Honda, was shot in the head and killed by a bullet fired by an AG gang member.
The jury convicted defendant of murder (Pen. Code, § 187, subd. (a)); attempted premeditated murder (§§ 664, 187, subd. (a)); and conspiracy to commit murder (§§ 182, subd. (a)(1), 187, subd. (a)). The jury also found defendant committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)), and that a principal in the crimes intentionally and personally discharged a firearm for the benefit of a street gang (§ 12022.53, subd. (c).) The court sentenced defendant to 25 years to life for murder, with an additional term of 20 years for the personal use of a gun for the benefit of a gang. The trial court stayed sentences on attempted murder and conspiracy conviction under section 654. Defendant now appeals.
All statutory references are to the Penal Code unless otherwise indicated.
II
Discussion
A. The Trial Court Erred in Admitting Evidence Four Witnesses Had Asserted Their Right Against Self-Incrimination
Among the prosecution’s witnesses were Aaron Phan, Uy Pham, Duy Pham, and Hien Vu, four members or associates of ACB who, when called to testify in an earlier trial of one of defendant’s accomplices, invoked their right against self-incrimination. Each was granted immunity and required to testify.
In the present case, the prosecutor asked each of these witnesses about their previous assertion of their right against self-incrimination. For example, the following interchange occurred between the prosecutor and the first of these witnesses, Aaron Phan: “Q: [D]o you remember being subpoenaed to come and testify in the case involving a defendant by the name of Bao Nguyen? [¶] A: Yes. [¶] Q: And at that time did you inform the court that you wanted to consult with an attorney before you were called to testify? [¶] A: Yes. [¶] Q: Did you, after talking to an attorney, tell the court that on the ground that what you might say will incriminate you and give you criminal culpability, you’re invoking your right to not testify and not take the witness stand? Do you remember that? [¶] A: Yes, I remember that. [¶] Q: You remember that subsequently the people filed a petition with the court requesting the court that the people be allowed to grant you use immunity to force you to testify? Do you remember that? [¶] A: Yeah, I remember.” The prosecutor then emphasized the witnesses’ prior refusal to testify in his rebuttal closing argument: “Here they come, even though they have immunity, because we had to force them to testify. They wouldn’t. They said, ‘we’re not gonna testify.’ You’re allowed to take that into consideration in assessing their credibility.”
Defendant contends the trial court erred in allowing the prosecution to present evidence these witnesses had previously invoked their right against self-incrimination. We agree.
Evidence Code section 913, subdivision (a), provides: “If in the instant proceeding or on a prior occasion a privilege is or was exercised not to testify with respect to any matter, or to refuse to disclose or to prevent another from disclosing any matter, neither the presiding officer nor counsel may comment thereon, no presumption shall arise because of the exercise of the privilege, and the trier of fact may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding.” (Italics added.) Thus, on its face, Evidence Code section 913 precluded the prosecutor from commenting on the witnesses’ prior assertion of their right against self-incrimination and rendered such evidence irrelevant.
Arguing the trial court did not err, the Attorney General relies on our decision in Lopez, supra, 71 Cal.App.4th 1550. In Lopez, a witness who had previously pleaded guilty and waived his right against self-incrimination, informed the court at a hearing outside of the jury’s presence that he would refuse to testify against a fellow gang member. The trial court nonetheless required the witness to testify, knowing he would claim protection under the Fifth Amendment in front of the jury. We held the trial court did not err because the witness no longer had a valid right against self-incrimination, reasoning: “Once a court determines a witness has a valid Fifth Amendment right not to testify, it is, of course, improper to require him to invoke the privilege in front of a jury; such a procedure encourages inappropriate speculation on the part of jurors about the reasons for the invocation. An adverse inference, damaging to the defense, may be drawn by jurors despite the possibility the assertion of privilege may be based upon reasons unrelated to guilt. . . . But where a witness has no constitutional or statutory right to refuse to testify, a different analysis applies. Jurors are entitled to draw a negative inference when such a witness refuses to provide relevant testimony.” (Id. at p. 1554, original italics.) Specifically, we concluded “the jury was entitled to consider [the witness’s] improper claim of privilege against him as evidence relevant to demonstrate exactly what the gang expert had opined: that gang members act as a unit to advance the cause of the gang and to protect their members.” (Id. at pp. 1555-1556.)
Attempting to place the present case within Lopez, the Attorney General correctly notes the witnesses lost their Fifth Amendment right against self-incrimination once they were granted immunity. The Attorney General mistakenly reasons, however, that once they lost their right against self-incrimination, their prior assertion of this right became fair game. Evidence Code section 913, however, expressly precludes comment upon a witness’s valid assertion of constitutional rights in a prior action. Had the witnesses here, after being granted immunity, refused to testify based on a nonexistent right against self-incrimination, the prosecution could have relied on Lopez and commented upon their refusal to testify. But the witnesses here held a valid right against self-incrimination when they invoked that right in the prior case; Lopez is thus inapposite. Because the present case falls squarely within Evidence Code section 913, we conclude the trial court erred in allowing the prosecutor’s questioning and comments on the witnesses’ prior assertion of their right against self-incrimination.
B. The Court’s Error Does Not Require Reversal
The United States Supreme Court in Namet v. United States (1963) 373 U.S. 179, 187 (Namet), recognized that reversal is not automatically required every time a witness asserts a valid privilege against self-incrimination before a jury. Ordinarily, a court’s mistake in allowing this to occur presents no constitutional issues, but only a claim of evidentiary error. (Id. at p. 185.) Thus, in considering if reversal is required, we must determine whether it is “reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836; see also People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.)
Defendant contends that the four witnesses testified in support of his self-defense claim, but the prosecution undermined their credibility by presenting evidence they had previously invoked their right against self-incrimination. Defendant, however, fails to cite any specific portion of the witnesses’ testimony which bolsters his self-defense claim. Indeed, our own review of their testimony reveals virtually no support for a self-defense theory.
True, Aaron Phan testified he went to the Phuc Loc Restaurant simply to eat, not to attack AG members. This testimony was not helpful to defendant, however, because Phan testified he was in his car napping when the other ACB members decided to go to the Phuc Loc Restaurant. Thus, even if Aaron Phan’s testimony were believed, it would not contradict the evidence demonstrating that the other ACB members, including defendant, traveled to the restaurant to attack AG members.
Uy Pham testified at trial that he could not remember where the group decided to go after leaving the billiard hall. But the prosecutor impeached Uy Pham with his grand jury testimony in which Pham admitted he had previously told the police the group decided to go to the Phuc Loc Restaurant to find AG members. Thus, Uy Pham’s testimony weakens, rather than bolsters, defendant’s self-defense theory.
Duy Pham testified he told police he was part of the four car caravan that traveled to Huntington Beach. He testified that when the group spotted AG members, an ACB member jumped out of one of their cars holding a gun, as other ACB members were shouting “‘fuck A.G.’” and “‘shoot them.’” He also testified another ACB member told him, before going to the Phuc Loc Restaurant, that the gun defendant ultimately used in the shootout was in the car in which defendant was riding. He further testified that before the shooting erupted, he heard shouts of “‘fuck A.G.’” and “‘fuck A.C.B.’” Accordingly, Duy Pham’s testimony fully supported the prosecution’s case, and provided no support for defendant’s self-defense claim.
Hien Vu testified she told police the ACB group, including defendant, discussed guns while at the billiard hall, and decided to go to the restaurant to do a “hit up” on AG members. Again, Vu’s testimony supported the prosecution’s case and did nothing to support defendant’s self-defense claim.
Defendant also contends his self-defense claim was undercut because the witnesses’ assertion of their right against self-incrimination reflected their “consciousness of guilt,” making him guilty by association. Any inference of guilt these witnesses may have cast upon defendant from their assertion of the privilege was overshadowed by their testimony, which largely bolstered the prosecution’s case.
Finally, we note defendant based his self defense claim primarily on his own testimony. Defendant testified he went to the Phuc Loc Restaurant only to eat, and did not know a gun was in the car in which he was riding until AG members shot at him, causing him to duck down and discover the gun under his seat. Defendant, however, admitted he lied when he initially told the police he did not have a gun or fire any shots. Moreover, he specifically testified that no one had given him the gun that night, but later admitted on cross-examination he had told the police, after initially denying he had a gun, that someone had given him the gun at the billiard hall. Defendant testified he threw the gun out of the car window because it was out of bullets, but later testified he led the police to the gun out of concern it might have bullets in it which could potentially hurt a child. When asked about this apparent discrepancy in his trial testimony, defendant responded: “I don’t know. I’m really confused, sir.” Defendant admitted he lied to police when he claimed he was going home when the shooting erupted, and lied about not being at the billiard hall the night of the shooting.
In sum, the jury had ample reasons to disbelieve defendant’s testimony supporting his self-defense claim. Indeed, defendant’s act of throwing the gun out of the car window and his deceit about where he had been the night of the shooting demonstrated a “consciousness of guilt” far more powerful than any inference arising from the four witnesses asserting their right against self-incrimination. We conclude it is not reasonably probable a result more favorable to defendant would have been reached absent the trial court’s error in admitting evidence that the four witnesses had previously asserted their right against self-incrimination.
III
Disposition
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., O’LEARY, J.