People v. Huynh

Decision Date30 April 1991
Docket NumberNos. H006276,H007712,s. H006276
Citation281 Cal.Rptr. 785,229 Cal.App.3d 1067
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Nam Van HUYNH, Defendant and Appellant. In re Nam Van HUYNH on Habeas Corpus.

Norton Tooby, under appointment by the Court of Appeal, in association with the Sixth Dist. Appellate Program, Oakland, for defendant and appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Laurence K. Sullivan, Supervising Deputy Atty. Gen., and Rene A. Chacon, Deputy Atty. Gen., for plaintiff and respondent.

AGLIANO, Presiding Justice.

1. Introduction

Defendant Nam Van Huynh appeals from the judgment following his conviction after court trial of second-degree murder with personal use of a .38 caliber revolver. (Pen.Code, §§ 187, 1203.06, 12022.5.) He also petitions for a writ of habeas corpus. On November 5, 1990, we ordered the petition considered with defendant's appeal and allowed the People to file an informal reply and defendant an informal response.

In the trial court, in exchange for eliminating defendant's exposure to special circumstances and first-degree murder, he waived preliminary examination and submitted to a court trial to determine, based on police reports, taped statements by defendant, and defendant's testimony, whether he was guilty of second-degree murder or manslaughter. Defendant was sentenced after conviction to seventeen years to life in prison, the court adding two years for his personal use of a firearm. 1

Defendant's habeas petition alleges that trial counsel was unconstitutionally ineffective in misadvising him about how soon parole was available after a second-degree murder conviction and in failing to pursue the possible defense of unconsciousness. On appeal defendant makes the latter point as well as four others. Defendant asserts the trial court erred by failing to obtain his waiver of the right against self-incrimination upon defendant's submission to court trial on the evidence above described. Defendant contends he was deprived of his rights to counsel, to an interpreter, and to have the trial judge preside at the posttrial hearing of defendant's motion for new trial. The facts are set out where relevant.

In response to the habeas petition, we will issue an order to show cause limited to defense counsel's alleged misadvice about parole eligibility. On the appeal, for the reasons stated below, we will affirm the judgment, finding no error except for lack of waiver of the right against self-incrimination and no prejudice from that error.

2. Trial evidence

The central issue at trial on August 17, 1989, was defendant's mental state when he shot his estranged wife to death on a street in San Jose shortly after 8:30 a.m. on Tuesday, November 8, 1988. The coroner reported the victim received five bullet wounds including two to her head.

Witnesses saw defendant standing outside his wife's car arguing with her inside the car. One resident of the neighborhood said defendant became "increasingly aggressive," patted his right hip to indicate he had a handgun, and pulled the gun out. The neighbor called out from her yard that she was going to call the police. Defendant stepped in front of his wife's car and hit the window with his pistol as she sounded the car horn. After defendant fired three shots, his wife's car coasted across the street, rolled over the curb, and stopped. Defendant walked up to the car, reached in with the gun, and fired two more shots. Defendant placed the gun on the trunk of the car and sat on the curb until the police arrived. Another passerby said he saw defendant reload before catching up to the car and fire more shots into the car. A crossing guard said that defendant fired one shot, paused six to eight seconds, fired three shots rapidly, and fired one final shot after the car came to rest.

Defendant was sitting on the curb when the first police officer arrived. He frisked defendant and located four cartridges in his left front coveralls pocket. The first officer told another officer he was frisking defendant for a gun. Defendant said, "The gun is on the car."

Defendant made a taped statement to the police after waiving his Miranda 2 rights. He made another taped statement to homicide detectives shortly before 10 a.m. Both tapes were in evidence.

During the police interviews and at trial, defendant explained his relationship with his wife as follows. In 1973 they met and married in Vietnam when he was 35 years old and she was 17. They had one son in 1974 and came to the United States of America in 1975. They moved to France for five years and to San Jose in 1980. They owned a fish company. They had another son in 1980 and a daughter in 1981. Although his wife was a prostitute when they met, she behaved very well once they married, until 1986. In 1986, she left the family and spent all their money on her boyfriend. This bankrupted defendant. When the boyfriend kicked her out, defendant took her back as his wife. Defendant admitted beating her in 1986 for giving her boyfriend their money.

Defendant went to work as a salesman for a fish company. His wife began working at a donut shop. She became involved with the shop's manager in early 1988. 3 Once she showed defendant a bullet and said she would kill him with it. He never saw her with a gun although she mentioned one several times.

Defendant and his wife separated in August. She had the police remove defendant from their apartment. He took up residence in an undeveloped area in the back of his place of employment.

On September 28 defendant acquired a new handgun in exchange for an older one. He went to a shooting range a couple of weeks later. He kept the gun loaded in his pocket or in a box which he kept either in his car or in a drawer where he lived and worked. He had carried the bullets found in his pocket for several weeks.

On October 18, defendant's wife obtained a court order restraining him from asking their children for her address and telephone number and from following anyone to her residence.

His business was closed for repairs in mid-October. For three weeks he sold cheap jewelry at a weekend flea market. Defendant was depressed and often thought of suicide after his wife kicked him out of the house and he did not have his job. He did not kill himself because of the children.

On Sunday, November 6, defendant was unable to meet his children as prearranged because he was working at the flea market. He wanted to see them the next day. On November 7, he signed a divorce paper after the secretary of his wife's attorney told him his failure to sign it was the reason his wife had not brought their children to meet him. The same day defendant found out his wife's new address through the Department of Motor Vehicles. She was using a car he had purchased.

In the morning of November 8, defendant drove to his wife's residence to talk to her about not bringing the children on Sunday. He brought the gun to shoot her and himself. He had frequently dreamt of them shooting each other. He saw his elder son that morning on the way to school and gave him a ride part way there. His son told him they had waited for him on Sunday. He told his son to bring the other two children and meet him at a market the following day without telling their mother.

Defendant returned to his wife's residence and knocked on the door. He indicated to her by words and gestures he wanted to talk elsewhere due to the restraining order. They drove in separate cars to another street where she stopped behind him. He went to talk to her through a window lowered about four inches. They talked about money and how her extramarital affair could hurt the children. She turned the steering wheel toward him and said she had a gun in the car. He did not see it. He patted his hip, saying he had a gun too. She told him she did not care about money, the children, him, or anything.

Defendant recalled taking the gun out of his pocket and banging on the window with the handle of the gun as she honked the horn. He used the point of the gun to break the window. Defendant remembered nothing after hearing the first shot except for following the car, putting the gun on the trunk, and sitting on the curb with his hands on his head. He did not remember reloading the gun. When asked if he knew what he was doing, defendant answered, "No. I was kind of crazy that moment, so depressed after three month, after I shot her, and I felt some kind of headache and so tired, and I sit down. I had some kind of a no thinking during that moment." He also explained, "After I heard the first shot, I became some kind of unconscious. I only remember that I put the gun ... in the top of it." When asked if he knew whether it was right or wrong, he answered, "I had some kind of mental crisis. I knew nothing. I knew nothing wrong or right." By the time of trial he realized it was wrong to destroy a family.

Defendant denied beating his wife in 1988 and said he had only beaten her twice. The elder son said he slapped her twice in 1988. She asked a male friend to move in with her for protection. This housemate said she was divorcing defendant as she was tired of being beaten. She was afraid of defendant as he was constantly violent toward her.

3. Advice and waiver of right against self-incrimination

Defendant contends the trial court erroneously failed to obtain his waiver of his right against self-incrimination prior to the above described submission. We review the proceedings of which defendant now complains.

A. Pretrial waivers

On March 9, 1989, defendant waived his right to a preliminary examination on the condition that the People not allege special circumstances or first degree murder. On June 12, 1989, defendant waived jury trial in superior...

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