People v. Luong
| Decision Date | 22 July 2003 |
| Docket Number | H024284. |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. MINH LUONG PHAN, Defendant and Appellant. |
After trial a jury convicted defendant Minh Phan of assaulting Timothy Benoit by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a).) The jury found true that defendant personally inflicted great bodily injury on Benoit. (Pen. Code, §§ 12022.7, subd. (a), 1203, subd. (e)(3).)
After the trial court denied defendant's motion for new trial, the court sentenced defendant to prison for seven years, including the upper term of four years for the assault, enhanced by three years for personal infliction of great bodily injury.
On appeal, defendant contends that the trial court erred in excluding evidence and in instructing the jury about assault and about personally inflicting great bodily injury in a group beating. Defendant also claims his trial counsel was incompetent and the prosecutor committed misconduct. For the reasons stated below, we will affirm the judgment. Defendant expands on some of these claims in a petition for writ of habeas corpus, which we will dispose of by separate order.
The evidence at trial was that a traffic encounter escalated into a physical fight that left a man bleeding on the side of the road with a cracked skull while defendant and his passenger drove off in defendant's car. Defendant did not testify at trial.
The victim, Timothy Benoit, testified at trial. He was unable to describe the fight due to memory loss. He did recall the following. On December 2, 2002, at around 4:00 p.m. he had switched cars with his wife and was driving a minivan home on Lawrence Expressway. He changed into the middle lane due to some traffic congestion. A green Geo Metro drove up along his left. Defendant, the driver, and the male passenger were looking at him with anger, pointing at him, and saying things he could not hear One of them threw a bottle that hit his van. This angered Benoit. Benoit accelerated in front of the Metro, cut in front of it, and parked on the median of the road. The Metro parked behind him. He saw defendant getting out of the Metro, so Benoit got out of his van. He did not see the passenger get out of the car. At the time Benoit was 43 years old, five feet seven inches tall, and weighed about 155 pounds.
Defendant was 21 years old, five feet 11 inches tall, and weighed about 160 pounds.
Passersby in other vehicles described seeing an altercation between two Asian men and an older white man. According to Socorro Mollat, the van cut off the Metro and parked. Benoit got out of the van and went quickly back to defendant's car. Benoit bent down to talk to defendant. Defendant got out of his car. The passenger also got out of the car. After a brief conversation, they began fighting. Benoit hit back at the two younger Asian males. They kicked him as he fell to the ground. When he was on the ground, they got into their car and drove off. She called 911 on her cell phone and reported that two guys had beaten up another guy and left him on the road. Benoit's head was very bloody.
sound of a car's brakes got the attention of Marci Jeffries. She saw Benoit run up to a car and two Asian men get out of that car. Benoit was yelling angrily. The two younger men began hitting him. Benoit did not swing first. He tucked his arms in and curled up. They punched him on both sides. He went to the ground. She saw Benoit try to get up. She told him not to, that help was on the way. A flap of skin was lifted off his skull. There was a lot of blood. Jeffries saw no weapon used.
When Robee Pilgrim saw the three men, they were already out of their vehicles and arguing. Someone pushed someone and a fight ensued in the median. The two younger Asian men were beating the older man, who was trying to block their blows and defend himself. It seemed like one guy stabbed him because he started bleeding and dropped to the ground. Pilgrim saw no weapon. Pilgrim called 911 and reported the license plate number of the Metro.
Bao "Dave" Hoang saw two people scuffling. He saw a lot of arm movements but could not tell if they were making contact. He saw a second Asian man get into the passenger's side of the green car before it drove off. He saw Benoit on the ground, not moving, with a pool of blood around his head. Hoang saw no weapon used.
What Everett Ford saw was one man trying to escape across the island from two other ones. First one and then the other of the two pursuers caught him, grabbed him, and punched him. Almost immediately after the second pursuer got involved, Benoit went down hard on the island and did not move. Ford could not tell if the men kicked him or just jumped over him as they left the scene. The men drove off. Ford called 911 and reported two men beating up a third. He saw no weapon being used.
Mollat and Ford honked their horns in a vain attempt to deter the assault.
Sunnyvale Police Detective Mark Sole investigated the reported license plate number, which was one number away from defendant's Geo Metro. After following defendant for a day or two, Sole spoke to him on December 15, 2001 at his place of employment. Defendant agreed to talk with Detectives Sole and Pitts. Their interview was tape-recorded and the recording was played for the jury.
According to defendant, that day he was driving with a long-time friend named John. Defendant did not know John's last name. A man in a minivan cut them off three times and parked the van. Defendant did not throw anything at the van. He did not know if John had. The man spit at his car, so defendant gave him the finger. The man charged back to defendant's car and punched him, so defendant punched back. Defendant was outside of his car when the man hit him. Defendant only punched him once. Defendant was just defending himself. Defendant denied grabbing the man. John got out of the car to protect him. John did not hit him. Neither one was wearing steel-toed boots. Defendant saw blood on the man. He thought it was from his nose. The man fell to the ground. Defendant did not know if he hit his head. He thought they had probably messed him up from punching him. When asked if he had a weapon in the car, defendant said he had a steering wheel lock called the Club.
Defendant said he was injured by the man. Sole could not see any injury.
Detective Sole searched defendant's car and removed the Club and a large flashlight. He saw no blood in the car. The laboratory found no evidence on the Club or the flashlight.
Photographs of Benoit's injuries were in evidence. Benoit was hospitalized for 16 days. Part of his skull was removed to relieve swelling of his brain. A titanium plate was later put in his skull. In addition to his head injury, he had a scraped and bloody right forearm and elbow. Since the fight he has had trouble speaking and remembering words. No medical expert described Benoit's injuries.
At the preliminary examination there was some evidence that a weapon was used on Benoit. Detective Mark Sole talked to Doctor Matz, a neurosurgeon who operated on Benoit. Matz told Sole that Benoit had two skull fractures. According to Sole, Matz told him that the fractures Benoit suffered would probably not result from hitting his head on the ground or curb after falling. "It looked more like a pipe type weapon that was, that had clean lines, as he said, or possibly steel toe boot."
Sunnyvale Police Officer David Lafaver interviewed a few witnesses at the scene, including Dung Nguyen. Nguyen, who was 73 years old, was a passenger in a car driven by her daughter, Elizabeth Pochard. She saw a second Asian male join an ongoing fight in which a white male and an Asian male were punching each other. She saw the second Asian strike the white male in the head from behind with an object that she believed may have been a hammer. She did not say the second Asian was a passenger. The white man fell to the ground. Lafaver said he had some difficulty communicating with Nguyen, but he changed the words until they understood each other.
The prosecutor at the preliminary examination argued that it was interesting that Nguyen, the only witness who observed some type of weapon, was the only witness who was a passenger.
The original information filed May 25, 2001 charged defendant with assault "with a deadly weapon and instrument other than a firearm, a metal pipe/hammer, and by means of force likely to produce great bodily injury."
Nguyen was originally listed as a potential prosecution witness, as was Doctor Paul Matz. The prosecutor notified defense counsel Patricia Fox a week before trial that they would not be calling Nguyen as a witness. Neither Nguyen nor Matz was on the prosecutor's final witness list. Nguyen was listed as a potential defense witness.
On Monday, October 22, 2001, at the outset of trial, the prosecutor struck the allegation of the use of a weapon and proceeded on the theory of the use of force likely to produce great bodily injury.
The prosecutor argued as follows in her opening argument. ...
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