Opinion
C081404
07-20-2018
THE PEOPLE, Plaintiff and Respondent, v. AMANDEEP SINGH DHAMI, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 08F07304)
In 2008, defendant Amandeep Singh Dhami and his friend Gurpreet Gosal went to a festival at a Sikh temple in Sacramento and opened fire on Parmjit Poma Singh (Poma), killing him and injuring Sahibjeet Singh (Sahibjeet). Gosal was caught at the scene, but defendant fled to India. After the FBI returned him to the United States in 2014, a jury found him guilty of the second degree murder of Poma and the attempted murder of Sahibjeet. (Pen. Code, §§ 187, subd. (a), 664). The jury found true firearm enhancements (§ 12022.53, subd. (d)) on both counts and a great bodily injury enhancement on the attempted murder (§ 12022.7, subd. (c)). The trial court sentenced defendant to an indeterminate term of 65 years to life in prison and a determinate term of seven years.
Further undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court erred by instructing the jury with CALCRIM No. 3472 (no right to self-defense if fight or quarrel provoked with intent to use force). He further contends the court erred in using a non-certified interpreter which he claims denied him due process and the right to a competent interpreter. We find no prejudicial error and affirm the judgment, but remand the matter to the trial court to permit the exercise of newly acquired discretion under Senate Bill No. 620.
FACTS
Defendant began emulating the criminal gang behaviors of adults while in high school. These behaviors included getting tattoos, carrying and using guns, and building a reputation for toughness. In 2003, defendant was found with a loaded firearm after a shooting at a skating rink in Davis. In 2007, defendant fired into the air during a road rage incident. In 2008, defendant formed a gang, PBF or Punjabi Block Family. Gurpreet Singh Kandola (Gary) was in the PBF gang with defendant.
On August 23, 2008, Gary went to a bar in San Jose with friends. There he was approached by a group of men (including Poma), who asked if Gary had a problem with someone whose name Gary claimed not to recognize. Poma insulted Gary. Gary felt threatened and went to his car and retrieved a gun. He loaded the gun and waited in the parking lot until the police came and arrested him. Gary was eventually convicted of illegal possession of a loaded firearm and illegal possession of a stolen firearm.
Defendant bailed Gary out of jail and Gary told him what had happened. Poma called both Gary and defendant about the incident. Defendant exchanged heated phone calls with Poma.
By August 30, defendant was angry that Poma continued to call him and talk to him about the incident with Gary. Gosal (defendant's friend) flew to Sacramento from Indiana for a short visit. Gosal had his own beef with Poma. Defendant, Gosal, and others purchased a large amount of ammunition after Gosal arrived.
That evening, Poma and several others, who were all truck drivers who had emigrated from India, were spending time together after work at the truck yard. Poma told his friend Alvinder Khangura that defendant had called and cursed him. Poma and defendant exchanged several angry calls that night.
The next day, Poma and his friends went to the Sikh temple for a festival that included numerous sporting events. They went to watch Khangura's brother play cricket.
Defendant and Gosal also went to the festival, parking in an aisle and blocking other cars. They grabbed something from their car and put it behind their backs. They approached Poma and his group. Defendant and Poma exchanged curses and defendant pulled out a gun and fired. Khangura grabbed defendant's arm, but defendant kept firing. Gosal was also firing a gun. Poma was shot and killed. Sahibjeet was hit and suffered great bodily injury.
Defendant dropped his gun and ran. Khangura (Poma's friend) tripped defendant and punched him. Defendant's female relatives came and facilitated his escape from the crowd. Gosal also ran, but he was chased by the crowd. He was caught, beaten, and then turned over to law enforcement.
Gosal was convicted of the second degree murder of Poma and acquitted of attempted murder of Sahibjeet.
Defendant's family helped defendant escape, first to Mexico and then to India. The FBI obtained a warrant for defendant's arrest. In late 2013, the FBI located defendant in India. Indian officials arrested him for entering the country illegally. An Indian police officer interviewed defendant who described the August 2008 shootings. Defendant told the officer that the motive behind his actions that day was the fight between Gary and Poma in the bar. When defendant called Poma, Poma insulted his father and wife. Defendant said he knew Poma would be at the festival and he and Gosal would go. The day before, defendant and Gosal bought ammunition. At the festival, there was a confrontation with Poma and his friends and defendant fired five shots and hit Poma.
At trial, defendant testified he agreed to meet Poma at the festival to settle their dispute. He and others bought ammunition the night before. At the festival, one of Poma's group called defendant a name. He and Gosal walked up to the group and Khangura punched him. There was cursing back and forth. Poma smiled and said, "Where you going to go now?" Defendant reached into his belt and pulled out his gun. As he pulled his gun out, defendant saw Poma reach to his belt and pull out a gun. Defendant fired into the ground to make Poma's group back off. Khangura lunged and grabbed defendant and the gun kept going off. The group beat defendant and he lost control of the gun. Khangura's brother picked it up and held it to defendant's head; he heard a click.
Defendant escaped and decided to get out of town to avoid prosecution but also to avoid retaliation from Poma's associates. He had help from his family. He admitted he got a teardrop tattoo in Mexico to "look tough." According to law enforcement, such a tattoo, when filled in, indicates the wearer has committed murder. While defendant was in India, his nephew asked on Facebook if defendant had shot someone. Defendant responded, "Let's not talk about this on Facebook. But you see my tattoo tear on my face? You (sic) a smart kid so you should know the answer."
Defendant made several Facebook postings using the name Mista Killafornia during his time in India. His profile blurb said, "Halfway around da world and still keepin it gansta bitches." One of the postings said, "I don't call. I just show up and bust on dem all. Most of dem run as couple of dem start to fall." Defendant claimed his Facebook postings were fictionalized accounts of the August 31, 2008 shootings.
Defendant also admitted he participated in a fraudulent marriage to help a woman enter the United States. She later married his cousin.
DISCUSSION
I
CALCRIM No. 3472
Defendant claimed self-defense at trial. He testified he pulled out his gun because he thought he would be killed. In accordance with its duty to instruct on all principles of law relevant to the facts of the case (People v. Boyer (2006) 38 Cal.4th 412, 468-469), the trial court gave numerous instructions on self-defense and imperfect self-defense. One of the instructions given was CALCRIM No. 3472, Right to Self-Defense: May Not Be Contrived: "A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force."
Defendant contends the trial court prejudicially erred in giving this instruction. He initially argues that there was no evidence to support the instruction, only speculation.
Because defendant did not object to this instruction in the trial court, the claim is forfeited. However, under section 1259 we may review alleged instructional error if the substantial rights of a defendant were affected. Further, here defendant makes the alternative claim of ineffective assistance of counsel; thus, we reach the merits of defendant's claim of instructional error.
It is error to give an instruction that has no application to the facts of the case; there must be substantial evidence to support the instruction. (People v. Cross (2008) 45 Cal.4th 58, 67; People v. Campbell (1994) 25 Cal.App.4th 402, 408.) Here, however, there was evidence from which the jury could have concluded that defendant provoked a fight with Poma and his friends as an excuse to shoot them, particularly Poma. Gosal had flown in from Indiana specifically to help defendant confront Poma, and they purchased a large amount of ammunition the night before. They took guns and ammunition to the festival where they knew Poma and his friends would be, parking in a manner (in the middle of an aisle) to facilitate a quick getaway. They approached Poma's group and insulted them, provoking the group to react. Defendant then immediately drew his gun and fired.
Defendant next argues it was error to give the instruction in this case because it precluded the jury from finding self-defense or imperfect self-defense. He contends the error eliminated his defense and lowered the prosecution's burden of proof. He asserts the instruction improperly denies self-defense to the initial aggressor where the adversary escalates the quarrel to deadly violence. He argues self-defense is available to a defendant who provokes a fistfight where it is the adversary who escalates the fight to deadly force. In making this argument, defendant relies on People v. Ramirez (2015) 233 Cal.App.4th 940 (Ramirez).
In Ramirez, the defendants were brothers and gang members who were tired of harassment from a rival gang. They recruited a fellow gang member to join them in confronting and fighting the rival gang. (Ramirez, supra, 233 Cal.App.4th 940, 944.) Encountering members of the rival gang, they provoked a fistfight, during which the rival gang double-teamed one of the brothers and their friend. The other brother testified one of the rival gang members raised an object that looked like a gun so he pulled out his gun and fired, killing the rival gang member. (Id. at p. 945.)
The court instructed with CALCRIM No. 3472. (Ramirez, supra, 233 Cal.App.4th at p. 945.) The prosecutor highlighted the instruction in closing argument and argued it precluded any claim of self-defense even if defendants only intended a fistfight. (Id. at p. 946.) The jury found the defendants guilty of first degree murder, but the appellate court reversed. (Id. at p. 943.) The court found the instruction, coupled with the prosecutor's misstatement of the law of self-defense, "erroneously required the jury to conclude that in contriving to use force, even to provoke a fistfight, defendants entirely forfeited any right to self-defense." (Id. at p. 953.) "A person who contrives to start a fistfight or provoke a nondeadly quarrel does not thereby 'forfeit[ ] . . . his right to live.' [Citation.] Instead, he may defend himself 'even when the defendant set in motion the chain of events that led the victim to attack the defendant.' [Citation.]" (Id. at p. 943.)
Defendant's reliance on Ramirez is misplaced. First, Ramirez acknowledged that CALCRIM No. 3472 "states a correct rule of law in appropriate circumstances." (Ramirez, supra, 233 Cal.App.4th at p. 947.) "[W]hen a defendant contrives a 'deadly' assault [citation], there can be no incommensurate or unjustifiable response by the victim; he or she is fully entitled to use deadly force and the defendant has no right to claim self-defense against those deadly measures." (Ibid.)
Further, Ramirez is distinguishable on its facts. There, evidence indicated the defendants and their friend intended to engage the rival gang only in a fistfight. Here, all of the evidence pointed to the fact that defendant prepared for and intended a deadly attack when he went to the festival; he brought guns, ammunition, and a friend to help him. There was no evidence defendant intended only a fistfight or that he or Gosal even threw a punch or engaged in any less lethal violence before they opened fire. Further, the only evidence that Poma used deadly force was defendant's testimony that he saw Poma draw a gun after defendant had already drawn his. Third, and critically, in Ramirez the prosecutor repeatedly misstated the law of self-defense and misled the jury by arguing, based on the language of CALCRIM No. 3472, that even if the jury believed the defendants sought to provoke only a fistfight, their intent to use force meant they forfeited any claim of self-defense. (Ramirez, supra, 233 Cal.App.4th at pp. 943, 945-946.) The Ramirez prosecutor repeatedly emphasized that it did not matter whether the victim "escalated a nondeadly conflict to deadly proportions." (Id. at p. 950.) Here, in contrast, the prosecutor engaged in no such misconduct and, thus, did not mislead the jury.
Here, as in Ramirez, the jury was also instructed under CALCRIM No. 3471 that "if the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting." In Ramirez, unlike in this case, the prosecutor improperly urged the jury to disregard the language of that instruction, arguing that it was trumped by the language of CALCRIM No. 3472. (Ramirez, supra, 233 Cal.App.4th at p. 950.)
Defendant has failed to establish prejudicial instructional error.
II
Non-Certified Interpreter
Defendant contends he was deprived of a fair trial because for two days of the trial the court used an interpreter who was neither certified nor registered, over defendant's objection. He contends there were questions as to the accuracy of the translation, the interpreter interacted with witnesses during breaks, and the trial court erred in failing to record the translation to preserve a record for appeal.
A. Background
A number of witnesses used a Punjabi interpreter while testifying. Originally, a certified Punjabi interpreter was used. Just before two important eyewitnesses, Khangura and Manwinder Mavi (a friend of Sahibjeet's) were to testify, that interpreter had an out-of-town emergency and no certified Punjabi interpreter was available. A non-certified Punjabi interpreter, Gulan Masih, was available.
The court questioned Masih as to his qualifications. Masih was a registered interpreter in Hindi and Urdu; his Punjabi registration had been dropped because he did not take the certification examination. His native language was Punjabi and he had provided Punjabi interpretations in court for 30 years. He had taken training for the professional ethics course and an ethics workshop. He maintained a copy of professional standards and had training in criminal procedure regarding interpretation.
The court announced its intention to qualify Masih as an interpreter. The defense objected, noting that in Gosal's trial a registered but uncertified interpreter was used and there were problems with the translation. Masih explained he had been a registered Punjabi interpreter for 20 years. Once certification became available for the Punjabi language, registration was dropped. He had not yet taken the certification test. Masih indicated he had never been found not qualified to translate Punjabi, nor had he been found to have translated incorrectly.
The court found good cause to use a non-certified, non-registered interpreter. It found Masih was qualified to serve as a Punjabi interpreter.
During Khangura's testimony, the defense complained that the interpreter gave a short translation of a long answer. Later, the defense asked to continue the trial until there was a change of interpreters, representing that the interpreter was summarizing long answers and the detail was lost. There was more detail in the statements to the police and the testimony in the Gosal trial. The court refused to change its ruling, noting the defense could cover the areas it raised in cross-examination.
After a recess, defense counsel reported a native born, fluent Punjabi speaker had told him the translation was "terrible"; defendant had confirmed the problems with the translation as to a specific portion of the testimony concerning whether defendant was shooting while Khangura was holding his hand (the identity of the first Punjabi speaker was not revealed.) The trial court declined to change its ruling and emphasized that counsel could cross-examine the witness to clarify any uncertain testimony.
The next day, defense counsel conceded that Masih had done "a pretty good job yesterday with my questions" but indicated there were "problems again today." First, he cited instances where Masih had hesitated to translate what the witness said, but after defendant "nodded [his] head like, you know, do something . . . then it got interpreted." Counsel then stated that Masih was talking to the witness at a break and in the hallway, and defendant's family had indicated he was telling the witness (Khangura) to "control yourself on the witness stand." The People argued information from defendant's family, who had hidden defendant for years, was not credible. Then Masih explained to the court that Khangura kept swinging in his chair and sticking his leg out. Masih told Khangura to keep his legs together so he could stand by him without fear of falling. This was presented by Masih as the reason for his additional direction to the witness.
The trial court took no further action on counsel's new complaints.
During Mavi's testimony, the defense again complained of problems with the translation, representing that parts of the answer were left out. In one example, the prosecutor had to clarify because the translated answer was vague. The trial court reiterated its ruling and the defense admitted the witness was trying to be fair and accurate so "that makes it easy to clarify." When the defense complained again about the interpreter, the court indicated the original interpreter was returning.
In his motion for a new trial, defendant raised the issue of defective translation. He requested an evidentiary hearing as to the actual testimony versus the translation. The trial court denied the motion.
B. Law and Analysis
"The California Constitution, as interpreted by the California Supreme Court, makes it clear that a defendant is entitled to two interpreters, one to interpret the witnesses' testimony and the other to be the personal interpreter for the defendant. (Cal. Const., art. I, § 14; People v. Aguilar (1984) 35 Cal.3d 785.) The Legislature has set up a comprehensive plan to provide for certification of court interpreters. (Gov. Code, § 68560 et seq.) Only those interpreters who are properly certified may be utilized unless good cause is found by the judge for appointment of an interpreter not on the recommended list. (Gov. Code, § 68562.) There is no requirement, however, that a certified interpreter be assigned as long as there is good cause shown for appointment of an uncertified interpreter. (Gov. Code, § 68562.)" (People v. Estrada (1986) 176 Cal.App.3d 410, 415.) "Certification is simply foundational to the interpreter's competence. He or she should not be found incompetent just because he or she is not on the certification list." (Ibid.)
A defendant is entitled to a competent witness interpreter. (People v. Aranda (1986) 186 Cal.App.3d 230, 237.) "The question of an interpreter's competence is a factual one for the trial court." (Ibid.) The trial court "is given considerable latitude" in making its determination of the interpreter's qualifications and competence. (People v. Roberts (1984) 162 Cal.App.3d 350, 355.) "The trial court's ruling will not be disturbed on appeal unless a manifest abuse of discretion is shown." (Ibid.)
Here, the trial court had good cause to use a non-certified interpreter because it was in the middle of trial and had received confirmation that no certified Punjabi interpreter was available. The court did not abuse its discretion in using Masih as an interpreter, given that he was a native speaker and had extensive background and training in serving as a court interpreter in the Punjabi language. Defendant points to instances where he or his family claimed the translation was not accurate. He fails, however, to show that these alleged discrepancies could not be cured by cross-examination. As counsel noted, he had the witnesses' previous statements to police and their prior testimony to use in cross-examination. Further, defendant and his family were hardly unbiased on the issue of the accuracy of the translation.
Defendant argues the jury's request for a rereading of the testimony of Khangura and Mavi suggests the jury was confused by a poor translation. But the jury also requested the testimony of the Indian police officer and the pathologist, and there was no issue with the translation of the Indian police officer by the certified interpreter; further, the pathologist testified in English. Given the jury's request for readback of the testimony of all key witnesses, whether or not Masih was their interpreter, it is more likely the jury's request reflected its "conscientious performance of its civic duty." (People v. Houston (2005) 130 Cal.App.4th 279, 301.)
Defendant raises Masih's conversation with Khangura during a break. He ignores, however, the explanation given for the exchange. Masih told the court that Khangura swung his feet and interfered with his standing next to the witness. Masih asked Khangura to keep still and explained why.
Defendant argues the trial court should have recorded the proceedings to preserve a record for appeal. He cites to several cases that recognize the inherent difficulty in assessing the accuracy of interpretations on the appellate record. The record reflects that although he asked the trial court to make the recording, the trial court never addressed the request and defense counsel did not press for a ruling. It was incumbent on defense counsel to make some effort to obtain a ruling and his failure to do so forfeits the issue on appeal. (People v. Braxton (2004) 34 Cal.4th 798, 813.)
Further, defendant does not cite to any authority that requires a trial court to make an audio recording of proceedings where an interpreter is used. The trial court did not abuse its discretion in declining to record the proceedings.
III
Senate Bill No. 620
We directed the parties to provide supplemental briefing on the effect of Senate Bill No. 620 on defendant's sentence and whether sentencing remand is required. The Attorney General agrees that remand is required.
We rejected defendant's supplemental brief as untimely after we electronically received it a full week after the due date, without explanation or leave to late file. --------
Senate Bill No. 620 (2017-2018 Reg. Sess.), which went into effect on January 1, 2018, (Stats. 2017, ch. 682, §§ 1-2) amends 12022.53 to remove the bar on striking a firearm enhancement and grant the trial court discretion pursuant to section 1385 to strike or dismiss an enhancement. "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h).) This amendment applies retroactively to cases not final on appeal. (People v. Arredondo (2018) 21 Cal.App.5th 493, 507; People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091.)
The People agree that because the trial court was not aware of this sentencing discretion, the appropriate remedy is to remand this case to the court to exercise its discretion to strike the firearm enhancements under section 12022.53, subdivision (h). (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) This is not a case where remand is unnecessary because the record shows that the court "clearly indicated" that it would not have exercised its discretion to lessen defendant's sentence. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.)
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court to consider exercising its discretion under section 12022.53, subdivision (h), as amended by Senate Bill No. 620, and, if appropriate following exercise of that discretion, to resentence defendant accordingly.
/s/_________
Duarte, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Murray, J.