People v. Lam Thanh Nguyen

• Decision Date: 13 August 2015
• Docket Number: No. S076340.,S076340.
• Citation: 61 Cal.4th 1015,191 Cal.Rptr.3d 182,354 P.3d 90
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. LAM THANH NGUYEN, Defendant and Appellant.

61 Cal.4th 1015

354 P.3d 90

191 Cal.Rptr.3d 182

The PEOPLE, Plaintiff and Respondent

v.LAM THANH NGUYEN, Defendant and Appellant.

No. S076340.

Supreme Court of California

Aug. 13, 2015.

Richard C. Neuhoff, under appointment by the Supreme Court, for Defendant and Appellant.

David Andreasen, Santa Barbara, as Amicus Curiae on behalf of Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens, Garrett Beaumont and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion

LIU, J.

On January 28, 1999, defendant Lam Thanh Nguyen was sentenced to death for murdering Sang Duc Nguyen and Tuan Pham. This appeal is automatic. (Pen.Code § 1239, subd. (b) ; further undesignated statutory references are to this code.) We strike the sentence enhancements under section 186.22, subdivision (b)(1) from the sentences imposed for actively participating in a gang in counts 3, 5, 7, 10, and 14. In all other respects, including the death sentence, we affirm the judgment.

I. Facts and Background

Defendant was charged in an amended information filed on May 4, 1998, in Orange County Superior Court with three counts of murder (§ 187, subd. (a) ) with the special circumstance of multiple murder (§ 190.2, subd. (a)(3)), two counts of conspiracy to commit murder (§ 182, subd. (a)(1)), three counts of attempted premeditated murder (§§ 664, subd. (a), 187, subd. (a) ), six counts of participating in a criminal street gang (§ 186.22, subd. (a) ), possession of a controlled substance (Health and Saf.Code § 11350 ), and possession for sale of cocaine base (Health and Saf.Code § 11351.5 ). The amended information further alleged that defendant had inflicted great bodily injury on three of the surviving victims (former § 12022.7), had personally used a firearm in committing nearly all of the charged crimes (former § 12022.5, subd. (a)), and was vicariously armed with a firearm in committing one count of attempted murder (former § 12022, subd. (a)(1)). The amended information alleged that all of the charged offenses were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)

The trial court dismissed both counts of conspiracy to commit murder: one count when the prosecution rested its case and the second count during the defense case. The drug possession charges were severed for purposes of trial. Defendant later pleaded guilty to possession of a controlled substance, and the other drug charge was dismissed.

Following the guilt phase of the trial, the jury on July 6, 1998 found defendant not guilty of one count of murder and the related count of participating in a criminal street gang. The jury convicted defendant of the remaining charges and found true the remaining allegations. The jury thus convicted defendant of murdering Sang Duc Nguyen and Tuan Pham, and found true the multiple-murder special-circumstance allegation. Following the penalty phase of the trial, defendant was sentenced to death for the murders of Sang Duc Nguyen and Tuan Pham. On the other charges, the trial court imposed but stayed three consecutive life sentences plus a determinate sentence of 15 years.

A. Guilt Phase

Six members of Vietnamese street gangs in Orange County, mostly members of the Cheap Boys, were shot during six separate incidents in 1994 and 1995; three of them died. Defendant is a member of a rival gang called the Nip Family. The prosecution sought to prove that defendant aided and abetted the first shooting and personally committed the other five. The defense contended that the Cheap Boys gang had framed him in order to remove him from the streets. He denied having been present at the first five shootings. Defendant admitted that he had been present at the sixth shooting, but denied that he had participated and claimed that if he did participate, the shooting had been in self-defense.

1. July 21, 1994, shooting of Tony Nguyen

In the afternoon of July 21, 1994, Tony Nguyen was giving some members of the Cheap Boys gang a ride home. Vinh Kevin Lac was in the front passenger seat of the car Tony was driving. Tinh Dam and his girlfriend, Chynna Vu, were in the back seat. Vu was a member of the Southside Scissors, a female Asian street gang. Several more members of the Cheap Boys gang were following in another car.

Tony stopped his car at a stop light on Garden Grove Boulevard, and another car stopped beside him to his left. He recognized the girl driving the car, later identified as My Tran, and saw a male, later identified as Nghia Phan, in the front passenger seat but could not see the people in the back because the windows “were kind of cloudy or dirty.” Tony smiled at the girl driving the other car and then turned away because he “didn't want to stare.” When the traffic signal turned green, he heard gunshots and “fell to the seat.” Phan had fired four or five shots. Tony was shot in the neck and was paralyzed from the neck down.

At the scene of the crime, Lac, who had been in the front passenger seat of Tony's car, told the police that he could not identify anyone in the other car, but he thought they were members of the Nip Family because they were “enemies” of the Cheap Boys. A few days later, Lac realized that the male sitting in the back seat behind the shooter was defendant, who lived downstairs from him. Lac had “bumped into” defendant five or six times prior to the shooting. Some days after the shooting, defendant came to Lac's apartment and asked, “What's up with the cops?” Lac assured defendant that he had said nothing to the police.

At trial, Lac identified defendant in court as the person in the other car who sat in the back seat behind the shooter. Lac also testified that just prior to the incident, the shooter's car passed Tony's car, and as it did so, defendant stared back at the occupants of Tony's car. The shooter's car went into a restaurant parking lot, waited for Tony's car to pass, and then pulled out to meet it at the stop light on Garden Grove Boulevard.

2. November 24, 1994, shooting of Huy Nguyen

On Thanksgiving, November 24, 1994, around 8:30 p.m., Huy Nguyen was shot multiple times, first outside and then inside a video game arcade called Mission Control in Garden Grove. He testified that he was standing outside the arcade when a “guy” approached him and asked if he was in the Tiny Rascals Gang. Huy said he only had friends in the gang. He added that the “guy” “thought that I belonged to T.R. [Tiny Rascals Gang], and then he hit me on the face one time.” Huy claimed that he remembered little of what happened after he was punched, but he testified that he heard gunshots and ran into Mission Control. He saw blood all over his body, found he was unable to move, and then lost consciousness. Huy is now partially paralyzed.

He cannot walk but has regained some movement of his arms. He could not remember much about the shooting and could not identify the person who shot him.

Channthai “Cindy” Pin testified that she had gone outside of Mission Control with two friends to smoke a cigarette. She heard Huy, who was associated with the Tiny Rascals Gang, start to yell at someone in Vietnamese. Pin had seen that person the day before at a motel nearby. He had displayed a gun. Huy approached the person and punched him in the face. The person punched Huy back, and several of Huy's friends joined the fight. Huy pushed the person up against a pillar. The person fell to the ground, and Huy's friends began kicking him and punching him. He tried to get up and then pulled a gun out of his waistband and shot Huy in the stomach. Huy stumbled into Mission Control, and the shooter followed him in. Pin then heard more shots fired inside Mission Control. Other witnesses inside Mission Control testified that Huy was shot several times as he lay on the floor. Before trial, Pin had identified defendant as the person who shot Huy, but she did not identify defendant in court.

Although there were many witnesses, few were able to identify the shooter. Chamroeun Choeun was smoking a cigarette outside Mission Control with her friends Pin and Chris Nguyen when she noticed Huy arguing with someone in Vietnamese. The two men starting fighting, and other people tried to stop the fight. Choeun then heard a gunshot and turned and saw defendant fire a gun twice. She ran.

3. February 5, 1995, murder of Sang Nguyen

On February 5, 1995, Cheap Boys gang member Sang Nguyen was shot and killed outside of the Dong Khanh restaurant in Westminster. Trieu Binh Nguyen, a fellow member of the Cheap Boys, who was visiting from Texas to celebrate the Vietnamese New Year, had gone to dinner at the restaurant with the victim and several other people, including his girlfriend Bich To, Binh Tran, and Linda Vu. Trieu and Tran went outside so Trieu could smoke a cigarette.

Vu looked through the front window of the restaurant and saw defendant, whom she recognized as belonging to the Nip Family. She told the victim, “I thought I saw N.F. [Nip Family] outside.” Sang asked where Tran was, and Vu said he was outside smoking. The victim went outside and met defendant. They shook hands, and defendant “grabbed his head” and shot the victim. Vu grabbed her one-year-old daughter and ducked under the table. Vu later identified defendant in a photographic line up, at the preliminary hearing, and at trial.

Trieu saw defendant and two other members of the Nip Family walk quickly toward the restaurant. Defendant was carrying a gun. Sang was leaving the restaurant and approached defendant and his companions. Trieu heard a gunshot and saw Sang grab his stomach and fall to the ground. Defendant then shot the victim in the head and ran away.

Trieu acknowledged he had told the police at the scene of the crime that he had not witnessed the murder because he had been in the bathroom. He explained that in the gang subculture, a person who talks to the police may be beaten...