People v. Duong

Decision Date10 August 2020
Docket NumberS114228
Citation10 Cal.5th 36,471 P.3d 352,267 Cal.Rptr.3d 231
CourtCalifornia Supreme Court
Parties The PEOPLE, Plaintiff and Respondent, v. ANH THE DUONG, Defendant and Appellant.

Debra S. Sabah Press and Charles J. Press, San Francisco, under appointments by the Supreme Court, for Defendant and Appellant.

Kamala Harris and Xavier Becerra, Attorneys General, Lance E. Winters, Assistant Attorney General, Joseph P. Lee and Jonathan M. Krauss, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion of the Court by Corrigan, J.

Defendant Anh The Duong shot and killed four nightclub patrons after an argument. He was convicted of three counts of first degree and one count of second degree murder with a multiple murder special circumstance and various gun use enhancements.1 The jury returned a death verdict.2 We affirm.

I. BACKGROUND
A. Guilt Phase
1. Prosecution Evidence

On the evening of May 5, 1999, Thi Van Le went to the International Club in El Monte to attend a birthday party for Khiet Diep. The party of at least seven sat at a table near the restroom. Diep belonged to the Wah Ching gang, and Anthony Tran, Hoa Truong, and defendant were Lao Family gang members. The other three attendees were Le, Duc Nguyen, and a man named "Khuong." None of the latter three were identified as gang members. At some point, Le went to the restroom and heard Tran arguing with three or four Asian men. Minh Tram, a member of the Black Dragon gang, eventually joined the argument.

After this encounter, defendant went toward the bar area where Tram and others sat in a booth. Ten to 15 minutes after the argument, Le saw defendant shoot into the booth with a handgun. John Bui, a co-owner of the club, stood up from the booth and grabbed at defendant, who evaded Bui and continued firing between nine to 13 shots, which took 10 to 15 seconds. Le did not see anyone shoot at defendant. Tran testified that he did not see anyone threaten defendant or their group.

Bui testified he saw an argument between two groups, which included defendant and Minh Tram. He told the men to stop arguing and, in an effort to diffuse the situation, he brought Tram to his booth. Defendant and his group returned to the table near the restroom. Those in Bui's booth included Thi Hoa Tang, Lan Thi Dang and her sister, Robert Norman, and others. Bui heard a loud sound and saw defendant shooting at the group. Bui, who was sitting outermost in the booth, tried to grab defendant but fell to the ground as defendant continued shooting. Bui did not see anyone threaten defendant or point a gun at him. Bui reviewed a photospread and identified defendant as the shooter but was afraid to confirm his selection. Bui was later a reluctant grand jury witness.

Tram, Tang, and Norman were pronounced dead at the scene. Dang died at the hospital. Tram had been shot once in the back of the head. Three other shots struck his left side, arm, and chest. Tram likely lost consciousness after the first shot. His wounds

were consistent with the shooter firing downward from a position slightly behind the victim. Tang was shot four times, including once in the temple. Norman was shot once in the back, which was consistent with him being struck as he attempted to crawl away from the booth. Dang was also struck once by a bullet that pierced her arm, then hit her lung, heart, and liver. None of the various wounds appeared to have been caused by rounds that ricocheted off of the booth table. There was no evidence that a bullet had pierced one victim then entered another.

Police recovered 10 expended shell casings, all fired from a .45-caliber semi-automatic handgun. Nine bullets were also recovered, including two from Tang's body and one from Dang's. All bullets and casings came from the same gun. A .40-caliber handgun fell out of Tram's back waistband as his body was moved. No evidence suggested the gun had been fired. A firearms expert opined that the trajectory of the bullets was consistent with the shooter firing into the booth from the front at a downward angle.

The day after the shooting, Diep went to Khuong's house and retrieved a videotape of the events. He eventually burned the tape in a backyard barbecue.

Le had been working as a confidential informant after a drug arrest. On the night of the shooting, he was looking for a murder suspect in an unrelated case. He had previously been paid $300 for information but was not being paid at the time of the shooting. He had no agreement for a disposition of his drug case.

Cellular phone records showed numerous calls the morning after the shooting between Tran, Diep, Nguyen, and a phone registered to defendant's girlfriend.

Defendant was arrested in July 2001 after a lengthy investigation. The search of a Ford Expedition revealed identification in the name of Long Hoang but bearing defendant's photo. A loaded .45-caliber handgun, along with credit cards in the names of Hoang and Christine Chen, were also recovered. The gun had not been used in the shooting. At the time of the murders, defendant lived with his girlfriend Cindy Hoang. A search of their residence revealed another .45-caliber handgun belonging to defendant, who worked at a gun range and was proficient with firearms.

2. Defense Evidence

Khiet Diep, a manager at the International Club, initially testified he did not see any fights or arguments on the night in question. He ran from the club when he heard, but did not see, the shooting. He denied telling police otherwise. He did not view or burn a videotape. He did not remember several calls made to his cell phone after the shooting. On cross-examination, he identified defendant as the shooter and admitted hearing an argument in the restroom before the shooting. He denied telling police that defendant and Tram were arguing over a woman.

Hoa Truong testified he was at the club. Before the shooting, he saw a man in a trench coat walk in and out. Someone told Truong the man was armed. As Truong was preparing to leave, he heard gunshots and saw defendant and the man in the trench coat struggling over something. He denied telling a defense investigator that defendant could not have been the shooter because defendant ran out of the club ahead of him. Shortly after the shooting, Truong and defendant fled to Austin, Texas. A defense investigator testified regarding his interview with Truong.

Los Angeles County Sheriff's Detective Christine Carns related various interviews conducted during her investigation. Bui said he grabbed the shooter's arm and the shooting continued as Bui fell to the ground. Tram told Bui he and the shooter argued about a shooting at a different nightclub called Passions. In his interview, Le said Tram "was walking around ’cuz he packing," which Carns interpreted to mean Le believed Tram had a gun. Le also told police that Diep approached defendant's table after the argument and defendant asked in Chinese, "Do you want me to do him now?" which Le interpreted to mean shoot the victim.3 Diep told police defendant and Tram argued "over a girl from another bar named Passions."

B. Penalty Phase

The prosecution presented evidence of defendant's involvement in four uncharged robbery-related shootings, two before and two after the murders.

Thien Tang owned a supermarket in San Jose. On May 3, 1997, while bringing $300,000 in cash from a bank to the market, two men accosted him and demanded the money. Defendant shot Tang in the leg and took the bag of cash. The assailants fled, but a market employee, Chau Quach, gave chase. Defendant fatally shot Quach. Defendant admitted the crime to his girlfriend Christine Chen, and Tang identified defendant in a lineup after the robbery.

On August 28, 1998, three masked men with guns tried to enter the property of Wintec Industries in Fremont. Security guard Ted Garcia was shot but survived. Employee Hsu Pin Tsai was killed as he tried to drive away. The men escaped in a white van. The van was later stopped but defendant was not with the four men inside. The van contained diagrams of the Wintec facility bearing defendant's fingerprints. The diagrams showed the location of various expensive computer parts. A phone associated with defendant was in constant contact with the perpetrators around the time of the incident. Defendant later confessed his involvement to Chen.

Chen testified that she and defendant began "casing" the Traditional Jewelers store in Newport Beach where defendant and others planned to steal watches. On January 16, 2001, defendant and three other men prepared for the robbery at the apartment defendant shared with Chen. Defendant was armed with an "AK." That evening, three armed masked men ran toward the store. Two men fired at security guard Rafael Gomez, while a third man stood near a planter. Gomez returned fire but was shot in the chest and arm. Glass fragments lodged in his eye and head. Gomez survived but required four surgeries. One of the men fired repeatedly into the front of the store, but they failed to gain entry. The store contained 1,200 watches worth between five and six million dollars. Defendant and the others went to the apartment, where defendant told Chen they had "shot up" the store but "couldn't get anything."

Chen suggested they should rob another jewelry store, so she, defendant, and others drove to Cupertino to case the shop. Chen was to watch the business until she saw the security guard go inside, and then alert the others. Two weeks later, they executed the plan. Defendant and three others entered wearing dark clothing. Inside, they killed security guard Joseph Cambosa and took $53,000 worth of watches.

Chen testified under a grant of use immunity. Defendant told Chen he supported himself through gambling and armed robberies. He kept a cache of weapons at their apartment so he could supply guns for his crimes. Defendant explained that he would wear a mask and dark clothes and only stay at the robbery site for 15 to 20 seconds.

Robert Norman's mother and Lan Dang's fat...

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