People v. Huynh

• Decision Date: 19 January 2018
• Docket Number: H042184
• Citation: 229 Cal.Rptr.3d 385,19 Cal.App.5th 680
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael HUYNH, Defendant and Appellant.

19 Cal.App.5th 680

229 Cal.Rptr.3d 385

The PEOPLE, Plaintiff and Respondent,

v.Michael HUYNH, Defendant and Appellant.

H042184

Court of Appeal, Sixth District, California.

Filed January 19, 2018

Xavier Becerra, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Leif M. Dautch, Deputy Attorney General, for Plaintiff/Respondent

Julia K. Freis, Santa Rosa, Attorney at Law, Under Appointment by the Court of Appeal, for Defendant/Appellant

Grover, J.Defendant Michael Huynh was sentenced to prison after a jury found him guilty of assault with a deadly weapon and other offenses, with gang enhancements. On appeal, he asserts prejudicial discovery violations, error concerning the prosecution's gang expert testimony, and insufficient evidence to support the conviction and gang enhancement for unlawful possession of a billy. For the reasons explained here, defendant has failed to establish prejudicial discovery or evidentiary error, and the conviction for possession of a billy and related gang enhancement are supported by substantial evidence. We will affirm the judgment.

I. BACKGROUND

In March 2012, defendant, then a student at Andrew Hill High School in San Jose, was involved in a fight with another student. Fourteen months later, defendant retaliated against Julian, the student whom he perceived had "jumped" him. On May 8, 2013, defendant, along with four or five other males, chased Julian and two schoolmates, Isaiah and Alvaro, as they were returning to the school campus after lunch, and accosted Julian on Senter Road in front of the school.¹

San Jose Police Officer Paul Guerra interviewed Julian, Isaiah, and Alvaro after the incident. Julian told Officer Guerra that one of the males had hit the back of his head with a blunt object, and another male had raised a hammer as if to hit him, but Julian ran. Julian did not have any visible injuries or identify his assailant. Alvaro told Officer Guerra someone said " ‘What's up, cuz,’ "and " ‘There he is. Get him,’ " and that he saw an Asian male strike Julian in the back of the head with a hammer. Isaiah said that Julian was the target of the attack and was struck in the back of the head with a "short handled sledgehammer." Isaiah also reported that other members of the group had weapons, including a meat hanger and a short metal baseball-type bat. Isaiah looked through photographs of former students with the school's liaison probation officer, Colleen Thomas, and he identified defendant as the male who, pointing to Julian, said to a male with a hammer, " ‘That's him, Get him.’ "

Officers executed a search warrant at defendant's residence about two months later. In addition to seizing defendant's cellphone and gang paraphernalia, they seized a pair of metal knuckles, a loaded firearm, and ammunition from a bedroom defendant shared with his brother. They also seized a small sledgehammer and collapsible baton from a Toyota Corolla parked in the driveway.

Defendant was arrested and interviewed by Detective Jill Ferrante. He said the brass knuckles, the drawer where the gun was found, and the Toyota were his, but he knew nothing about the baton, the hammer, or the gun. He said he had been jumped at school in March 2012 and that he "went after [Julian] in retaliation" in May. He admitted chasing Julian across the street and swinging a crowbar at him, but denied striking him.

II. TRIAL COURT PROCEEDINGS

Defendant was charged with assault with a deadly weapon ( Pen. Code, § 245, subd. (a)(1) ; count 1 [undesignated statutory references are to the Penal Code] ), unlawful possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2), unlawful possession of ammunition by a felon (§ 30305, subd. (a)(1); count 3), possession of metal knuckles (§ 21810; count 4), and two counts of possession of "a weapon of the kind commonly known as a billy" (§ 22210; count 5 [the collapsible baton] and count 6 [the mini sledgehammer] ). The information alleged that counts 1, 5, and 6 were committed to promote, further, or assist a criminal street gang (§ 186.22, subd. (b)(1)), and that defendant had sustained a prior conviction for residential burglary subjecting him to additional punishment under the Three Strikes law (§§ 667, subds. (b)–(i) and 1170.12) and section 667.5, subdivision (a).

At trial, Julian, Isaiah, and Alvaro were called as witnesses for the prosecution. Julian's testimony was more detailed than the statement he had given Officer Guerra. He testified that a group of five or six Asian males, including defendant, approached him and his schoolmates as they were walking across Senter Road. One of the males said "What's up, Cuz?" and Julian realized "they were coming at me, at us," and then "[e]verything happened." Within seconds Julian was hit on the back of his head with what felt like a blunt object. He turned around and saw "[a]ll the guys that were trying to get me." Defendant, whom Julian recognized as a former student, was very close, about a foot away, with "like a crowbar," a "metal blunt object" in his hands, positioned at an angle as if following through with a swing. Before he could react, someone else struck his cheek area with "[l]ike a construction hammer" with a "metal end." The males all had weapons, including knives, and one of them yelled "Asian Boyz" as Julian ran back to school. Julian was not injured, but he applied ice for the pain, and he told Officer Guerra that the Asian Boyz did this. Julian had seen defendant in a fight on the school campus in 2012. It was a one-on-one fight in the bathroom, but Julian left before it ended and did not know who won.

On cross-examination, Julian acknowledged testifying at the preliminary hearing to being struck on the back of his head, but not about a strike to his cheek, and he did not remember also testifying that he had been hit with bare hands. He did not have a clear recollection of his interview with Officer Guerra, and he could not remember whether he had told Officer Guerra that someone had shouted "Asian Boyz," but he had told Officer Guerra he had been hit by a hammer.

Alvaro testified that he, Julian, and Isaiah were "rushed," "really fast," as they crossed the street by a group of about five people, one of whom said something like " ‘What's up’ " or " ‘What's up, cuz.’ " Alvaro ran "because there was more than one person attacking Julian." He did not remember seeing Julian get struck, and if he had told Officer Guerra he had seen Julian get hit by a hammer in the back of the head, that was because he was repeating what Julian had told him after the attack.

Isaiah testified that he, Alvaro, and Julian were crossing the street when he noticed a commotion in the median that he knew "wasn't good" and "looked rough," so he ran. He saw fast, sudden, movement, his instinct told him it was dangerous, and he felt fear. He saw a group of people surround Julian, but he and Alvaro were not hit. He had no recollection of what happened, his memory was not refreshed by the statement he had given Officer Guerra, and he did not remember speaking with probation officer Thomas. The court made a finding under People v. Green (1971) 3 Cal.3d 981, 92 Cal.Rptr. 494, 479 P.2d 998 that Isaiah was being deliberately evasive, and his prior statements were admitted for their truth under Evidence Code sections 1235 and 1237.

Officer Guerra related the statements made by Julian, Alvaro, and Isaiah after the attack. He also testified that none of the students had reported hearing someone yell "Asian Boyz;" Julian never told him he had been hit in the face or hit with a hammer; Julian did not name his assailant that day; and there were no visible signs of injury. Probation officer Thomas testified that Isaiah had identified defendant among photographs of former students, and that while defendant was a student at Andrew Hill High School he would spend time in an area on the main quad where Asian Boys gang members congregated.

Chris Hardin, an expert in digital forensics employed by the Santa Clara County District Attorney's Crime Lab, testified regarding data extracted from defendant's cell phone, including two Facebook chat messages. In a May 16, 2013 chat between defendant (using the handle "Vietnamese Cuhz") and a Sons of Samoa gang member who was upset with defendant for going after Isaiah, defendant wrote, "it's called retaliation," and "dnt be asking me about your lil homie, like I said I went after the fat nigguh, if you boy got in the way than it woulda been bad, if your boy got a problem than he can handle it with the homie." Defendant continued: "I told you many times, he didn't get touch n we weren't after him, get it straight. [H]e clearly seen us going after the nigguhs from trees." Defendant also messaged, "I already told you, we aimming for julian," and "I told you I was after julian. Your homie ran when I chased julian." In a Facebook chat with a female in April 2013, the female wrote "Are you serious ... David told me it's because of your car and the hammer." Defendant responded, "Hammer is a weapon. Not supposed to have weapons on me."

Officer John Vanderbroeck testified regarding the search of defendant's residence, and several photographs of seized items were introduced through him. Detective Ferrante testified that after his arrest, defendant told her he had been jumped at school in March 2012, he believed his attacker was Julian, he had retaliated on May 8 for that attack, and he had chased Julian across the street and swung a crowbar at him but did not strike him.

Detective Ferrante also testified as an expert in gang culture, and in identifying gangs and gang members in San Jose. She was a 19-year veteran with the San Jose Police Department, and her first contact with the Asian Boyz gang occurred within the first eight years of her career. The Asian Boyz is an informally structured gang that...