People v. Mai

Citation161 Cal.Rptr.3d 1,305 P.3d 1175,57 Cal.4th 986
Decision Date02 October 2013
Docket NumberNo. S089478.,S089478.
CourtUnited States State Supreme Court (California)
PartiesThe PEOPLE, Plaintiff and Respondent, v. HUNG THANH MAI, Defendant and Appellant.

OPINION TEXT STARTS HERE

See 5 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Trial, § 232 et seq.

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and C. Delaine Renard, Deputy State Public Defender, for Defendant and Appellant.

Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, J.

Defendant Hung Thanh Mai was convicted by the court, as charged, of the first degree murder of Don Joseph Burt (Pen.Code, §§ 187, 189).1 The court further found true, as a special circumstance, the allegation that the killing was intentional, and that defendant knew or should have known the victim was a peace officer engaged in the performance of duty. ( § 190.2, subd. (a)(7) ( section 190.2(a)(7)).) A penalty jury returned a death verdict. The automatic motion for modification of the verdict (§ 190.4, subd. (e)) was denied, and defendant was sentenced to death. This appeal is automatic. ( Cal. Const., art. VI, § 11, subd. (a); Pen.Code, § 1239, subd. (b).) We will affirm the judgment in its entirety.

FACTS
A. Guilt and special circumstance evidence.

As to the criminal charge of first degree murder and the peace officer special circumstance allegation, defendant waived his jury trial, self-incrimination, and confrontation rights, and stipulated that the court would determine those issues from the preliminary hearing transcript. That transcript included the following evidence.

About 8:30 p.m. on July 13, 1996, Bernice Sarthou pulled into the Pepe's Mexican Restaurant on North Placentia Avenue just south of its intersection with Nutwood Avenue in Fullerton. The sun was still up, so she was wearing her prescription sunglasses. She left her car and entered the restaurant, but saw it was full, so she returned to her car and got into the drive-through line. As she did so, she saw a patrol car, with its lights flashing, stopped behind a white BMW. A young Vietnamese male was sitting in the driver's seat of the BMW, and a uniformed officer was sitting in the patrol car. When Sarthou looked at the BMW's driver, he leaned forward, gripped his steering wheel, and gave her a “hard stare.”

As the drive-through line moved forward, Sarthou lost sight of the two cars she had seen. She ordered her dinner, received it, and pulled into a parking area to eat. By this time, she had removed her sunglasses and put on her regular glasses, though there was still some sun. From her parking place, the front of the BMW was again in view, at a distance of 35 to 40 feet. She saw the officer lean into the driver's window of the BMW. When she looked up again, the officer and the BMW driver were standing outside that car. They seemed to be struggling for possession of something. Almost immediately, she heard five shots, and the officer fell. The BMW driver then walked up to the officer and shot him in the head. After doing so, defendant got into the officer's car and drove away. At the preliminary hearing, Sarthou positively identified defendant as the man who shot the officer.

Around 9:30 p.m. that evening, Douglas Kennedy, a Fullerton Police Department homicide detective, was advised of the shooting of a California Highway Patrol (CHP) officer at 2950 Nutwood Avenue in Fullerton. He responded to the scene. There he found a white 1995 BMW 525i sedan. No CHP patrol vehicle was present. Adjacent to the BMW were shell casings, a considerable amount of blood, and various personal items.2 The latter included a police officer's Sam Brown belt with holster attached, a handcuff case, a pager in a leather holder, an ammunition pouch, and a BMW car key. A wallet containing identification with defendant's name and picture was found on the front floorboard of the BMW.

Officer Burt's citation book was also nearby. This indicated he had begun to write a ticket for a suspended driver's license in the name of Phu Duc Nguyen, but the ticket had not been signed by the person being cited. There was a bloody shoeprint on the citation book. Also on the ground, near the rear of the BMW, was a “CHP 180 form,” which an officer fills out before impounding a vehicle. The information on the form was for the 1995 BMW. At the front of the vehicle, traveler's checks in a paper bag were discovered.

Later that night, Officer Burt's patrol car was found abandoned in the driveway of a Ford dealership located at the corner of South Loara Street and West Lincoln Avenue in Anaheim. Defendant lived close to the dealership, at 1780 West Lincoln Avenue. A witness saw an Asian male run from the dealership that evening, jump over the bumper of a parked Honda, and proceed in the direction of defendant's residence. A shoeprint was recovered from the Honda's bumper.

Officer Burt died from multiple gunshot wounds. There were entry wounds behind his left ear, in his upper right arm, in the back of his left thigh, behind his left ankle, just above his right buttocks, and in his left buttocks. The arm wound caused the humerus bone in his right arm to fracture. The fatal bullets were the one that entered behind his left ear and exited through his right eye, and those that entered his buttocks and traveled upward through his torso into his intestines, stomach, and lungs. Gunpowder residue on the entry wound behind the victim's ear indicated this bullet had been fired at very close range.

Chang “Alex” Nguyen testified that at the time of Officer Burt's murder, Nguyen and defendant were engaged in an ongoing criminal enterprise whereby Nguyen purchased from defendant, on a weekly basis, large quantities of forged traveler's and payroll checks. On the evening of July 13, 1996, defendant telephoned Nguyen in Houston, Texas, where Nguyen lived. Defendant said he was in ‘deep shit’ because he had ‘just [taken] down a California Highway Patrolman,’ and he needed a place to ‘lay low.’ The next night, defendant flew to Dallas, where Nguyen picked him up at the airport.

During the drive from Dallas to Houston, defendant recounted that on the evening of July 13, he was pulled over by a CHP officer because his lights were off, though defendant thought they were on. Defendant believed he had an outstanding warrant, so he did not present his own driver's license to the officer, and instead “used somebody else's name” when identifying himself. That name [came] back as [a] suspended ... license.” The officer removed defendant from his car and told defendant he would have to tow it. At this point, defendant had a “gut feeling something was going to go wrong.” He suggested the officer just give him a ticket, tow the car, and tell him where to pick it up. The officer responded [f]ine,” but said he had to check the trunk and do an inventory. Defendant then knew “something[was] going to happen” because he had “stuff” in the car.3

Defendant told Nguyen that the officer then opened the trunk, pulled out a bag, opened it, looked inside, and immediately advised defendant he was under arrest. Defendant already had two “strikes” against him, was afraid a third conviction would lead to life imprisonment, and wanted to leave no witnesses. So he drew his gun and shot the officer three times. The officer fell, but was still “twitching.” Defendant did not want the officer to suffer, and wanted to make sure he left no witnesses, so he shot the officer four more times. Defendant then looked for his own car keys, but could not find them, so he took the officer's gun, got into the patrol car, and drove away. Defendant abandoned that vehicle “somewhere” and paid a “Mexican guy” $100 for a ride to a friend's house.

Shortly after arriving at Nguyen's Houston apartment, defendant said he needed to shop for new clothes, particularly new shoes, because he had gotten blood on his shoes and had not been able to clean it all off. Nguyen noticed a dark spot on the sneakers defendant was wearing.

On the way to a shopping mall after his arrival in Houston, defendant made a cell phone call, apparently to a friend, and asked whether the person called had taken care of ‘that package I left for you.’ The other person said something, and defendant then declared, ‘Well, you better because it's very important.’ After hanging up, defendant told Nguyen he had ‘something ... important I need to have my friend get rid of,’ and wanted to ‘make sure it's been done right.’

Two or three days after defendant's arrival in Houston, Nguyen and his lawyer contacted the Federal Bureau of Investigation (FBI), met with an agent, and told the agent of defendant's confession and location. Defendant was arrested in Nguyen's Houston apartment by FBI agents and local law enforcement officers.

When arrested, defendant was not wearing shoes, but a pair of Kmart tennis shoes were found beneath the sofa on which he had been sleeping. A substance resembling dried blood was observed on these shoes. At the preliminary hearing, Nguyen identified these shoes from photographs as the ones defendant was wearing, and wanted to replace, when he arrived from California. The sole pattern on these shoes was consistent with the bloody shoe print on Officer Burt's citation book. A comparison between these shoes and the shoe print left on the bumper of the Honda yielded a “positive match.”

Victoria Pham, defendant's girlfriend, testified she had assisted him in leasing a white BMW. She saw him in the car between 5:00 p.m. and 6:00 p.m. on July 13, 1996. The next day, he telephoned her and told her “something [had] happened” to the BMW, and it was hers.

No defense evidence was presented at the preliminary hearing.

B. Prosecuti...

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