Opinion
G053008
09-27-2017
THE PEOPLE, Plaintiff and Respondent, v. TUAN THANH TRAN, Defendant and Appellant.
Sherilyn McDonald for Defendant and Appellant. Xavier Beccera and Kamala D. Harris, Attorney Generals, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kristen Kinnaird Chenelia, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12WF2714) OPINION Appeal from a judgment of the Superior Court of Orange County, Thomas Goethals, Judge. Affirmed. Sherilyn McDonald for Defendant and Appellant. Xavier Beccera and Kamala D. Harris, Attorney Generals, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Tuan Thanh Tran of attempted premeditated attempted murder (count 1), two counts of the lesser included offense of attempted voluntary manslaughter (counts 2, 3), and shooting at an occupied motor vehicle (count 4). The jury and the court found true sentence enhancement allegations related to defendant's gun use and prior serious felony conviction. The court sentenced defendant to life with the possibility of parole, plus 25 years for gun use and five years for the prior serious felony conviction.
Defendant asserts the court erred by denying his pretrial motion to suppress his statement to the police because they violated his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and the prosecutor committed prejudicial misconduct in closing argument. We conclude neither contention has merit and affirm the judgment.
FACTS
For clarity and convenience, we have referred to some of the people involved by their first, or middle names. We intend no disrespect by this practice. --------
Beginning in 2010, defendant's girlfriend, Amanda Nguyen (Amanda) and Huong Nguyen (Huong), the wife of Tuan Nguyen (Moi), were embroiled in some kind of dispute.
On February 28, 2010, defendant and Amanda were at a restaurant in Garden Grove when Moi and his brothers confronted them. Someone in Moi's group hit defendant with a baseball bat in the face at least once. Defendant was taken to the hospital. He had a broken right eye socket and severe swelling and discoloration on his face.
In the spring of 2012, defendant and Moi got into a fight at a Vietnamese café in Garden Grove. Defendant instigated the fight, and he knocked Moi to the ground. A friend of defendant's hit Moi in the head with a rock. Moi's friend, Trung Pham (Pham), helped Moi. After about two minutes, the fight stopped and the combatants dispersed.
About six months later, on September 21, Moi, Huong, Pham, and Thach Hoang (Thach), Moi's sisters Cam Ha Nguyen (Ha) and Michelle Hang Nguyen (Michelle), and a couple of other unnamed friends went to the Window bar to celebrate Moi's birthday and his upcoming incarceration.
While the group was drinking and talking, Pham noticed defendant and Amanda at the door. Defendant said something to Moi like, "Why are you here?" Moi's group told defendant to leave the bar, "just go home." Defendant left for a couple of minutes, but he returned. At this point, Moi's group got up and moved toward defendant. Defendant went back outside, talked to a woman in an SUV, and walked away.
Moi and his group left Window and returned to Moi's house for a while. A short time later, they decided to go to another bar, the Cutie Lounge. Another of Moi's friends, Binh, joined them, and Binh and Pham drove together to Cutie Lounge in the same car with the remainder of the group divided up into two other cars. Moi, Huong, and Thach were in Thach's Chevrolet Impala.
Pham and Binh were parking their car when Pham saw defendant coming out of Cutie Lounge with a pistol in his hand. The pair decided to leave and started to drive out of the parking lot. Pham watched defendant running to the other side of the parking lot just as the Impala drove in and started to park.
Pham yelled out, "He have a gun," and Thach attempted to drive out of the parking lot. Defendant fired two shots at the Impala from about 20 feet away, shattering the rear window in the process. Thach was slowed down because of traffic and defendant ran after the Impala. He fired three more shots directly at the car.
One bullet hit Moi in the head and Thach drove him to the hospital. Moi spent two weeks in a coma before he died. Pham and Ha, who had been in a third vehicle in the parking lot, positively identified defendant as the shooter. Ha identified defendant as the shooter in a 911 call. Pham told officers defendant was the shooter right after he delivered Moi to the hospital.
A few days later, defendant fled the state. He was arrested a couple of months later in Albuquerque, New Mexico and extradited back to California. Garden Grove Detective Michael Nguyen brought defendant back to California and interviewed him at the Westminster Police Department. The approximately 30-minute interview was recorded and played for the jury.
Following Miranda advisements in Vietnamese and English, defendant admitted going to the Window bar with Amanda, but he said it was crowded so they left. Defendant denied getting into a fight with Moi there, and he told Detective Nguyen he and Amanda went home.
A little later, defendant took a taxi to Cutie Lounge, but no one was there and he left. He called a friend and they drove to a bar in Los Angeles. Defendant left town the following Tuesday or Wednesday to visit family and then look for work in Albuquerque. Defendant denied shooting Moi, and he told Detective Nguyen he knew nothing about it. In fact, defendant said he was afraid of Moi.
Detective Nguyen also interviewed Ha. Initially, Ha was evasive about Moi's prior relationship with defendant. At trial, Ha admitted Moi and defendant had a volatile history. She had heard Moi and Huong talk about defendant and their prior battles.
Madelin Nguyen, an employee at Cutie Lounge said the owner told her defendant came to the lounge with a gun and he was looking for Moi. She tried to warn Pham, but Pham received her text about the same time the police arrived. Hanh Le, the owner of Cutie Lounge, had seen Moi and defendant before, but she denied seeing him, or anybody, with a gun on the night of the shooting.
Because no physical evidence directly connected defendant to the crime, defense counsel asserted an identity defense. Counsel admitted Moi and defendant had been mutual combatants in the past, but counsel asserted Moi's friend, Pham, and his sister, Ha, were lying when they identified him as the shooter.
DISCUSSION
1. Motion to Suppress Evidence
a. Background
Defendant moved to suppress (Pen. Code, § 1538.5) his statement to Detective Nguyen as the involuntary product of an interrogation conducted in violation of Miranda. Defense counsel argued defendant did not understand English, and spoke Vietnamese. He also had an unfortunate tendency to respond "uh-huh" to whatever was being said to him in English. Counsel asserted there was a clear "communication barrier" between defendant and Detective Nguyen.
By stipulation of the parties, the court viewed the audio/video recording of Detective Nguyen's interview with defendant several times. The parties stipulated the Miranda admonition given in Vietnamese was an accurate translation. The court also allowed a Vietnamese translator to read the admonition into the record.
The following observations are based on our independent review of the recording. Detective Nguyen conducted the interview at the police station in a small interview room. He and defendant sat across from each other at a table. Detective Nguyen, speaking English, asked if defendant knew why he was there and defendant said no.
Detective Nguyen asked defendant to read the standard Miranda admonishment in Vietnamese from a piece of paper. Detective Nguyen read an English version of the admonishment in English for defendant. As he read, Detective Nguyen paused after each right and asked defendant if he understood. Defendant nodded his head up and down in apparent assent every time Detective Nguyen paused.
Detective Nguyen then began questioning defendant in English. Defendant interrupted him in Vietnamese. Detective Nguyen said he felt unsure of his own facility with Vietnamese, and he asked defendant to let him know if he did not understand anything Detective Nguyen said in English.
For the next 30 minutes, Detective Nguyen and defendant conversed in a mixture of English and Vietnamese. We agree with the court's comment that defendant and Detective Nguyen demonstrated significant ability to understand both languages. The entire interview is a back and forth discussion between the two, with no indication either person needed any clarification or translation.
The court did not believe defendant's head nodding indicated a lack of understanding. Instead, the court noted, "It does take him a moment to go from one language to the other. But, literally, it is a moment and then he is speaking in one of the two languages." The court found no evidence Detective Nguyen used deception, undue influence, or coercion to obtain defendant's statement, and defendant voluntarily and knowingly waived his Miranda rights. Thus, the court denied the motion to suppress.
b. Law
"In considering a claim on appeal that a statement or confession is inadmissible because it was obtained in violation of a defendant's Miranda rights, we 'review independently the trial court's legal determinations . . . . We evaluate the trial court's factual findings regarding the circumstances surrounding the defendant's statements and waivers and "'accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence.'"' [Citation.]" (People v. Dykes (2009) 46 Cal.4th 731, 751.) We are required to consider the totality of the circumstances. (Moran v. Burbine (1986) 475 U.S. 412.)
Defendant correctly states the importance of language difficulties in this context. (United States v. Bernard S. (9th Cir. 1986) 795 F.2d 749, 751-752.) Relying on People v. Salcido (2008) 44 Cal.4th 93 (Salcido), United States v. Martinez (9th Cir. 1979) 588 F.2d 1227 (Martinez), and United States v. Gonzales (9th Cir. 1984) 749 F.2d 1329 (Gonzales), defendant argues the absence of any testimony about his language ability, and the court's unfamiliarity with Vietnamese, made the court's findings "too speculative to be substantial." Defendant's reliance is misplaced.
In Salcido, the court relied on a transcribed record of an interview to find the defendant had facility with both English and Spanish. The defendant's rejection of an offer to have a Spanish-speaking interrogator was sufficient to demonstrate the defendant's facility with both languages. (Salcido, supra, 44 Cal.4th at p. 129.)
In Martinez, the defendant claimed he did not understand his rights because they were read to him in Spanish with a Mexican accent and he understood Spanish with a Cuban accent. He also claimed to have never read the written waiver he signed. (Martinez, supra, 588 F2d at pp. 1234-1235.) But the defendant's assertions were refuted by the testimony of two witnesses, and the fact he continued to converse in Spanish with the officer throughout the interview. (Id. at p. 1235.)
In Gonzales, interrogators read the defendant his Miranda rights in Spanish and English, the defendant signed cards explaining his rights in both languages, and he spoke to the interrogator in English and Spanish. (Gonzales, supra, 749 F.2d at p. 1336.) There, the court relied on testimony about the defendant and the interrogator's abilities to converse in English and Spanish to find they understood each other. (Ibid.)
True, in each of defendant's cited cases, the court relied on testimony to substantiate the defendants' language ability. But none of these cases hold a court must take testimony to justify the court's decision. The court here relied on the audio-video recording of the interview, which is also highly probative of defendant and Detective Nguyen's language skills. As noted, based on our review, the entire interview is a back-and-forth exchange between seemingly bilingual persons.
Here, defendant received his Miranda rights in English and Vietnamese, and the record supports a finding he understood his rights as they were explained. With knowledge of his Miranda rights, defendant talked to Detective Nguyen and gave a statement. In addition, there is no evidence Detective Nguyen made promises of leniency, or threats to obtain defendant's statement. Thus, the court correctly denied defendant's motion to suppress. 2. Prosecutorial Misconduct
Defendant asserts the prosecutor's closing argument that a gun is the "'deadliest weapon on the street'" was unduly inflammatory, and the prosecutor twice improperly impugned defense counsel, shifting the burden of proof to the defense.
The Attorney General argues defendant forfeited his prosecutorial misconduct claims by failing to object to the allegedly improper statements at trial. We agree. "'As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]' [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 820 (Hill).) A defendant may be excused from a failure to do so if (1) such an objection and request would have been futile, (2) an objection was made without opportunity to request a curative admonition, or (3) a timely admonition would not have cured the harm. (Id. at p. 820.) None of these circumstances is present here, and we conclude defendant forfeited this complaint.
Nevertheless, we address the merits of defendant's arguments to forestall any future ineffective assistance of counsel claim. Under federal law, prosecutorial error is reversible only if it "infects the trial with such unfairness as to make the conviction a denial of due process." (People v. Morales (2001) 25 Cal.4th 34, 44.) Under state law "prosecutorial misconduct . . . involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (Ibid.)
"When the issue 'focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' [Citations.] Moreover, prosecutors 'have wide latitude to discuss and draw inferences from the evidence at trial,' and whether 'the inferences the prosecutor draws are reasonable is for the jury to decide.' [Citation.]" (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203.)
The first instance of purported misconduct occurred when the prosecutor said, "Again, that prior violence. The earlier confrontation at Window. Angry there. Again, running towards the car. And he has the deadliest weapon on the street. We're not talking about military grade weapons. We're talking about weapons you can have here on the street, and he's got the deadliest one and it's loaded and it's ready to go, and he used it without hesitation." (Italics added.) Defendant considers this statement too inflammatory for permissible argument. We disagree.
"Regarding the scope of permissible prosecutorial argument, '"'a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.]'"'" (People v. Stanley (2006) 39 Cal.4th 913, 951-952.) In particular, "'"[a] prosecutor may "vigorously argue his case and is not limited to 'Chesterfieldian politeness"' [citation], and he may "use appropriate epithets . . . ."'" [Citation.]' [Citation.]" (Ibid.)
While it is improper for a prosecutor to make emotional arguments and use "'"inflammatory rhetoric"'" (People v. Redd (2010) 48 Cal.4th 691, 742-743, quoting People v. Padilla (1995) 11 Cal.4th 891, 956-957, overruled on other grounds by Hill, supra, 17 Cal.4th at pp. 822-823), the prosecutor's description of the gun as the deadliest weapon on the street was neither emotional, nor inflammatory, and it was true. Guns are the deadliest weapons on the street.
In addition, the prosecutor used the deadliest weapon terminology to argue defendant's possession and use of the gun demonstrated an intent to kill. As such, the prosecutor made fair comment on the evidence. Comments on the state of the evidence or the defendant's failure to call logical witnesses, introduce material evidence, or rebut the People's case are generally permissible. (People v. Medina (1995) 11 Cal.4th 694, 755.)
As for defendant's assertion the prosecutor impugned the integrity of defense counsel, "[a] prosecutor commits misconduct when he or she 'attacks the integrity of defense counsel, or casts aspersions on defense counsel. [Citations.]'" (People v. Lloyd (2015) 236 Cal.App.4th 49, 61, quoting Hill, supra, 17 Cal.4th at p. 832.) Thus, a prosecutor may not argue that defense counsel believes his client is guilty or that defense counsel is allowed or obligated to present a defense dishonestly. (People v. Bell (1989) 49 Cal.3d 502, 537-538.)
The first objectionable statement came in response to defense counsel's assertion some of defendant's statements to Detective Nguyen were suspicious, but not evidence of his client's involvement. The prosecutor followed this with comments on additional evidence against defendant, which cast an even longer shadow on defendant's account. However, nothing suggested defense counsel did not find his client credible.
With respect to the prosecutor's statement about defense counsel being a very good lawyer, the prosecutor made that statement in response to defense counsel's effective cross-examination of important prosecution witnesses, and the various inconsistencies it revealed. This, too, did not impugn defense counsel. When considered in the context of the entire argument, there is no reasonable likelihood the jury understood the complained-of remarks in an objectionable fashion. (Cole, supra, 33 Cal.4th at p. 1204.)
However, assuming misconduct, the error was harmless. The court repeatedly admonished the jury attorney's statements during closing argument are not evidence. (People v. Stanley, supra, 39 Cal.4th at p. 961 fn. 10.) In particular, the court stated, "Ladies and gentlemen, first of all, as I have told you repeatedly, nothing the lawyers say during their final arguments is evidence. This is advocacy. You've heard all the evidence, but these are good lawyers and they're going to tell you what they think from their position in the case the evidence has demonstrated, but don't mistake argument by either lawyer as evidence."
On the other hand, the purported misconduct consists of three isolated instances, which were trivial considered individually or collectively. Given the strength of the prosecution's case, there is no reasonable probability defendant would have obtained a more favorable result absent the alleged misconduct. (People v. Sandoval (1992) 4 Cal.4th 155, 194; People v. Watson (1956) 46 Cal.2d 818, 836; [applying the Watson standard of prejudice to a claim of prosecutorial misconduct in arguments].)
3. Cumulative Error
Defendant argues the cumulative effect of the errors requires reversal. However, we have found no error, and thus no deprivation of rights guaranteed under either the state or federal Constitutions. Defendant was entitled to a fair trial, not a perfect one. (People v. Box (2000) 23 Cal.4th 1153, 1214, overruled on another ground in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10.) He received a fair trial.
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.