Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F10781
BLEASE, J.
A jury found defendant Kevin Vongvilay guilty of attempted murder, shooting into an occupied vehicle, and possessing a concealed firearm while being an active participant in a criminal street gang. The jury also found that the shooting and attempted murder were committed for the benefit of a criminal street gang, and that a principal had personally used a firearm and caused great bodily injury. Sentenced to 32 years to life, defendant appeals.
He contends the trial court erred in denying his motion to exclude statements he claims were taken in violation of his Miranda rights. He also contends the trial court erred in admitting evidence of a high school fight that took place about 17 months before the crime. We affirm.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).
BACKGROUND
In May 2005, David Lieng was attending school at Rio Casa Dera and was a member of the Hop Sing gang. On May 13, 2005, Lieng went to Valley High School with four other gang members, including defendant, to hang out during lunch. While they were there, they became involved in a fight. Lieng was unsure who they were fighting and thought it had started because someone had bumped into someone. In Hop Sing gang culture, it is common to back up a fellow gang member. The failure to do so could result in being beat up, stabbed, or shot.
On September 24, 2005, Lieng arrived at a party with about 20 to 30 other Hop Sing gang members looking for an individual with whom a gang member had a problem. A physical altercation, involving weapons, ensued. Shortly after the incident, Lieng was interviewed by Detective Jeffrey Beezley. Lieng identified the Hop Sing members who had been involved in the fight, including defendant’s brother, as well as some Hop Sing Dai-los (powerful gang members who issue orders). Lieng’s actions were considered “snitching” and snitches could be killed. After the interview, Lieng was beaten up by a Dai-lo and started distancing himself from the gang.
By October 2006, Lieng was still a Hop Sing gang member but no longer socialized with fellow gang members. He had been marked as a snitch. At around 11:00 p.m., on October 4, 2006, he was texting on his cell phone while waiting in his car outside a friend’s house. His window was rolled down. Defendant drove up and stopped his car. His passenger got out of the car, walked up to Lieng’s window and, as Lieng turned to look, shot Lieng in the face. As Lieng slumped over the passenger seat, he was shot again in the shoulder and the back of his head. Lieng survived but was not able to identify his assailant.
A couple of months later, Detective Beezley interviewed defendant about the shooting. Defendant initially claimed he had been in San Francisco at the Hop Sing gang headquarters at the time of the shooting, but later admitted he had been the driver of the car. He refused, however, to disclose the name of his passenger, as he did not want to be marked as a snitch.
Although defendant was not a validated Hop Sing gang member, Detective John Fan opined he was a gang member based on his tattoo, his possession of a black bandana, his association with other gang members, having contacted him in the field committing gang related crimes, and his admission to Detective Beezley during his interview. He also opined that two handguns found hidden in defendant’s car were possessed for the benefit of the gang and were indicative of the fact that he was an active member. To move up in stature in the Hop Sing gang, a member has to put in “work, ” such as participating in fights, beatings, stabbings, and shootings. The more violent the crime, the more respect can be earned. The shooting of a snitch would constitute “work” for the gang.
At trial, defendant admitted he was a Hop Sing gang member, but claimed he had not done much “work” for the gang and was not looking to move up in stature because he was going to college. He testified that, although he was driving the car on the night of the shooting, he did not recognize Lieng’s car or know there was going to be a shooting. After being told by the trial court that his testimony could be stricken if he continued to refuse to give the passenger’s name, he revealed that Nguyen Tran was his passenger that night. There was no way he would have revealed Tran’s name to Detective Beezley and he had been specifically told not to name names. After the shooting, Tran had said this is what happens to people who talk.
DISCUSSION
I
Miranda
Defendant contends his constitutional rights were violated when the trial court allowed the prosecutor to introduce evidence of the statements defendant made to Detective Beezley during his police interview. He claims the interview improperly continued after he invoked his right to remain silent.
We independently review the record to determine whether a Miranda violation has occurred (People v. Weaver (2001) 26 Cal.4th 876, 918), and agree with the trial court that no Miranda violation occurred.
At the beginning of the interview, after being advised of his rights, defendant answered Detective Beezley’s questions without any equivocation. He denied being a Hop Sing gang member and claimed his tattoo was unrelated to the gang. They discussed the guns found in defendant’s car and defendant said he had them for protection. When Detective Beezley brought up the Lieng shooting, defendant claimed he was in San Francisco at the Hop Sing headquarters at the time of the shooting. When asked who he was talking to there, so officers could confirm his alibi, defendant responded, “I’m not trying to bring up no name.” Detective Beezley indicated that he had talked to other gang members and knew defendant was lying. Defendant maintained that they could check the guns found in his car against the one used to shoot Lieng because he was in the Bay area, not at the shooting, and added, “But I’m not trying to tell you no more.”
Detective Beezley continued to press defendant to tell him who pulled the trigger and defendant continued to insist he was not at the shooting. Detective Beezley finally told defendant that he had talked to other witnesses, knew what happened, and knew defendant’s car was used in the shooting. Defendant responded, “If you know what happened, then why you asking me?” Detective Beezley said, “Because I need to know from you what you were thinking that night. That makes a big difference. I need to know the details from you.” Defendant responded, “I’m not really trying to be a snitch.” Detective Beezley then asked if all defendant did was drive, and defendant said, “Yeah.” The following colloquy then took place:
Detective Beezley: “You didn’t switch places with the other guy?”
Defendant: “Nah on my mom or my pop. I’m not going to say nothing else. (Unintelligible).”
Detective Beezley: “Just a minute. Let me think about this.”
Defendant: “You guys just bring me in.”
Detective Beezley: “Hold on a sec, Dave – ah, Kevin. I just want to understand this. All you did was drive that night?”
Defendant: [Nods head].
Detective Beezley: “How many people were in the car?”
Defendant: (No audible response).
Detective Beezley: “I need to know. Besides you, there’s at least one
Defendant: (Unintelligible).
Detective Beezley: “- maybe two. How many?
Defendant: “I already told you my part that I was driving. That’s all.” (Italics added.)
Detective Beezley confirmed with defendant that he claimed he had just been driving. He then asked defendant how he ended up at the place where Lieng was parked and whether he had been looking for Lieng. Defendant responded: “Ah, we were driving around. After that somehow. I – I don’t know. He just popped out of nowhere. It – it was like, oh. We just wait for him and just followed him. That’s all I got to say. Damn. (unintelligible.)” Detective Beezley asked if he had received a phone call and defendant denied that. Detective Beezley then asked how many other people were with him in the car and defendant responded, “Like I said, I’m not trying to say no names” and “I can just say my part.”
The interview continued, with Detective Beezley explaining the shooting was a very serious crime. Then, when defendant denied knowing what type of gun was used, Detective Beezley asked why he was lying again after starting to cooperate. Detective Beezley said, “You do know. You can’t say you don’t know. If you say you don’t want to tell me, that – I understand that. But we need to move past this.” Defendant responded, “I don’t want to say nothing.” Detective Beezley said, “Okay. You don’t want to talk to me about --” and defendant interrupted with, “Yeah. I don’t want to talk about it.”
The topic then returned to defendant’s role as the driver. Detective Beezley again asked how many other people were with him in the car and defendant responded, “I don’t really want to say. Like – like I said, I’m not –”, “I am not being no snitch and then something (unintelligible).” Shortly after that, defendant clarified that he did not want to get hurt for being a snitch.
The interview continued and defendant continued to respond to questions asking for specific details about who else was involved in the shooting with statements such as, “Like I said, I’m not trying to be no snitch, ” “I’m not trying to say nothing much, ” “I‘m not trying to say no names, ” “I am not gonna tell you nothing more, ” “I’m not trying to say, ” “I’m not trying to talk no more. I already talked --, ” “That’s all I can say about my stuff. You know? Snitching on myself (unintelligible). That’s the best I can do, ” and “Like remember I told you I – I’ll only snitch on myself.” When the interview concluded, defendant had still not revealed how many individuals were in his car that night and had refused to identify anyone involved in the shooting or in the gang.
Defendant contends that the italicized statements were repeated and unequivocal invocations of his right to remain silent during his interrogation. We disagree.
A defendant may invoke the right to remain silent by words or conduct that are reasonably inconsistent with a present willingness to discuss the case. (People v. Crittenden (1994) 9 Cal.4th 83, 129.) Under Miranda, interrogation must cease if the defendant indicates at any time or in any manner, prior to or during interrogation, that he is invoking his right to remain silent. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1238.) A mid-interrogation invocation of the right to remain silent must be clear and unambiguous. (People v. Williams (2010) 49 Cal.4th 405, 434, citing Berghuis v. Thompkins (2010) 560 U.S. ___, ___ [176 L.Ed.2d 1098, 1110].) “‘Whether the suspect has indeed invoked that right, however, is a question of fact to be decided in light of all of the circumstances....’ [Citation.]” (People v. Musselwhite, supra, 17 Cal.4th at p. 1238.)
Contrary to defendant’s claim, it is not reasonable to construe any of his statements as an invocation of his right not to talk. While a desire to halt the interrogation may be indicated in a variety of ways, the words used by the suspect “must be construed in context.” (In re Joe R. (1980) 27 Cal.3d 496, 515 (Joe R.).) Here, while defendant occasionally indicated he was not going to, or did not want to, say anything else (“I don’t want to talk about it”;“I am not gonna tell you nothing more”) those statements were interwoven with denials of culpability (“Nah on my mom or my pop. I’m not going to say nothing else”; “we were driving around.... That’s all I got to say. Damn”), and his insistence that he would not snitch on anyone (“I already told you my part that I was driving. That’s all”), and thus did not manifest an unequivocal desire to halt the interrogation. In fact, after the first statement defendant now claims was a clear invocation of his right not to talk, Detective Beezley remarked, “Just a minute. Let me think about this” and defendant continued talking.
In context, defendant’s remarks were indicative of his refusal to snitch on anyone other than himself. His refusal to answer certain questions, specifically those that would implicate others in the shooting, did not, however, invoke his right to remain silent and terminate the interview. A defendant may refuse to answer certain questions without manifesting the desire to terminate the entire interview. (People v. Silva (1988) 45 Cal.3d 604, 629-630.) California law makes clear the defendant does not have the right “to remain silent selectively.” (People v. Hurd (1998) 62 Cal.App.4th 1084, 1093.)
We disagree with defendant and find Joe R. instructive. In Joe R., the minor was suspected of committing two robberies and, during the commission of one, his accomplice was shot by the victim. The minor waived his rights pursuant to Miranda and denied committing any offenses. (Joe R., supra, 27 Cal.3d at pp. 501-503.) When accused of lying and confronted with the evidence, he responded, “‘That’s all I have to say.’” (Id. at p. 516; see id. at p. 503.) Law enforcement officers continued questioning and the minor eventually confessed to the two robberies but not to the homicide. (Id. at p. 503.) Rejecting the minor’s assertion that he had invoked his right to remain silent, Joe R. concluded the minor’s statement was not an unequivocal invocation of his right but simply a statement to the effect of, “That’s my story, and I’ll stick with it.” (Id. at p. 516.)
Likewise, other courts presented with similar ambiguous statements have decided the right to remain silent had not been invoked (People v. Williams, supra, 49 Cal.4th at pp. 433-434 [“I don’t want to talk about it” not an invocation of right but rather an expression of frustration with the officer’s repeated refusal to accept his denials]; People v.Wash (1993) 6 Cal.4th 215, 237-239 [“‘I don’t know if I wanna talk anymore’” not an invocation of right]; People v. Jennings (1988) 46 Cal.3d 963, 977-979 [“‘I’m not going to talk.... [t]hat’s it’” and “‘I shut up’” not an invocation of right but rather “only momentary frustration and animosity” towards one of the questioning officers]; People v. Silva, supra, 45 Cal.3d at pp. 629-630 [“‘I really don’t want to talk about that’” not an invocation of right but desire not to talk about whether he was driving]; People v. Castille (2003) 108 Cal.App.4th 469, 488-489 [defendant’s statement, “I can’t talk no more, ” was not an invocation of the right to silence even though defendant was crying and struggling to speak].)
Similarly, here, applying the totality of circumstances test, we find Detective Beezley did not violate defendant’s Miranda rights.
II
Evidence Code 352Defendant also contends the trial court erred under Evidence Code Section 352 in admitting evidence of the high school fight that took place about 17 months before the crime. The evidence was admitted to establish defendant’s participation, if any, in gang activity.
We review the trial court’s ruling on an Evidence Code section 352 objection under a standard of abuse of discretion. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) For purposes of Evidence Code section 352, “prejudice” refers to evidence that “‘“uniquely tends to evoke an emotional bias against defendant”’ without regard to its relevance on material issues.” (Ibid.)
Defendant argues the fight was not gang related and, therefore, should have been excluded under Evidence Code section 352 as lacking probative value. He boldly states that “there was not a scintilla of evidence to show that it was a premeditated gang related incident....” He argues that the evidence established it was simply a high school fight. Defendant then argues the prejudice of this evidence was great, relying heavily on authority discussing how admission of gang evidence can be highly inflammatory. Defendant cannot have it both ways.
It was for the jury to decide if the evidence of the fight was gang related. The jury was instructed it could consider the evidence “only to show the extent, if any, which is for [the jury] to decide [defendant’s] involvement with Hop Sing gang.” (Italics added.) It was told it could not consider the evidence to show “any kind of propensity of violence” with respect to defendant. Thus, to the extent the evidence established a simple high school fight, as defendant argues, the jury would have no use for the evidence and evidence of a simple high school fight is not of the type that is “highly inflammatory.”
On the other hand, to the extent the evidence established defendant had been involved with the Hop Sing gang and participated in gang related activity, the evidence was clearly relevant to the charges in this case. We reject defendant’s contention that such relevant evidence must necessarily be excluded on the ground that it was cumulative. That there was other evidence that defendant was a member of Hop Sing does not demonstrate abuse of discretion. How active defendant was in the gang was not undisputed and he was not a validated gang member at the time of the underlying crimes. Additionally, defendant maintained he had not done a lot of work for the gang and was not looking to move up in rank. Thus, it was not an abuse of discretion to admit evidence that defendant had recently actively participated in gang related activity.
We find no grounds for reversal based on the admission of the evidence of the high school fight.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, P. J., BUTZ, J.