People v. Nguyen
| Decision Date | 13 August 2003 |
| Docket Number | No. A091576.,A091576. |
| Citation | 111 Cal.App.4th 810,4 Cal.Rptr.3d 211 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Ted Vu NGUYEN, et al., Defendants and Appellants. |
Stephen B. Bedrick, Oakland, appointed under the First District Appellate Project Independent Case System, for Appellant, Ted Vu Nguyen.
Scott Alan Sugarman, San Francisco, appointed under the First District Appellate Project Independent Case System, for Appellant, Michael Yongqiang Liu.
Joseph Courtney Shevelson, appointed under the First District Appellate Project Independent Case System, for Appellant, Cuong Chi Vuong.
Colleen M. Rohan, appointed under the First District Appellate Project Independent Case System, for Appellant, Johnnie Tangha.
Kathy Merickel Chavez, appointed under the First District Appellate Project Independent Case System, for Appellant, Eugene James Lee.
Bill Lockyer, Attorney General of the State of California; Robert Anderson, Chief Assistant Attorney General; Ronald A. Bass, Senior Assistant Attorney General; Michael E. Banister, Deputy Attorney General; Catherine A. Rivlin, Supervising Deputy Attorney General, for Respondent.
Under California law, a conspirator who withdraws from the conspiracy affirmatively and in good faith, and communicates that withdrawal to the other conspirators, remains liable for the conspiracy itself but avoids liability for the target offense or any subsequent acts committed by coconspirators. (People v. Sconce (1991) 228 Cal.App.3d 693, 701, 279 Cal.Rptr. 59; 1 Witkin & Epstein, Cal.Criminal Law Cal.Criminal Law (3d ed. 2000) Elements, § 92, pp. 309-310.) This case involves an unusual implication of the withdrawal defense. Appellants presented evidence that they withdrew from a conspiracy to commit robbery before their coconspirators commenced the assault on the targeted premises, during which a victim was shot and killed. Were appellants entitled to a verdict form on conspiracy as a lesser included offense of felony murder? We hold that they were so entitled. When the prosecution relies on a conspiracy theory to establish liability for the underlying felony, conspiracy becomes a lesser included offense of felony murder and the jury must be given the option of returning a conspiracy verdict if there is substantial evidence of withdrawal from the conspiracy prior to the killing.
Ted Vu Nguyen, Eugene James Lee, Cuong Chi Vuong, Johnnie Tangha, and Michael Yongqiang Liu appeal from judgments convicting them of first-degree murder with a firearm enhancement, for which they were sentenced to terms of 26 years to life. Among other claims, appellants contend the trial court erred by: (1) denying their motion to suppress evidence derived from the search of a van; (2) admitting evidence of weapons and ammunition found in the homes of some appellants; (3) excluding testimony from Nguyen regarding statements other appellants made about withdrawing from a robbery conspiracy; (4) failing to instruct the jury sua sponte on the prosecution's burden of proving that appellants did not withdraw from the conspiracy (if the court did not err, appellants claim their trial counsel were ineffective for failing to request such an instruction); and (5) failing to provide the jury with verdict forms for the offense of conspiracy to commit robbery.
We conclude the motion to suppress was properly denied, but the court erred by excluding the testimony supporting a withdrawal defense and failing to provide the verdict forms for conspiracy to commit robbery requested by appellants. These errors went to the heart of the defense, and cannot be deemed harmless. Accordingly, we reverse the judgments. We address the other claims noted above to provide guidance to the parties and the court in the event of a retrial.
Appellants were charged by information with first degree murder, and the special circumstance that the killing occurred during an attempted robbery. The information alleged that appellants were armed when they committed the offense. A second count of attempted murder was also included, with the same arming allegation.
The trial testimony established appellants' participation in a botched attempt to rob Wintec Industries, a computer component manufacturer in Fremont. Bakhtawar Singh Litt was a Wintec employee whose duties included providing security for Wintec's owner, William Jeng. Litt would follow Jeng home in a separate car after Jeng left the premises. Litt would wait in his car by the Wintec gate at the end of the day. On the evening of August 28, 1998, Litt was sitting in his car near the gate at around 8:30, when it was nearly dark.
Litt saw Hsu-Pin Tsai, the product manager, come out of the building and walk to his car, parked in a space reserved for the handicapped. Michael Jeng, William's brother and Wintec's sales director, also came out, stopped near Tsai's car, then went to his own car. Litt saw William Jeng leave the building after turning off the lights. Even before William emerged, Litt heard the sound of an engine accelerating. A white van that had been parked across the street drove into the Wintec parking lot. At the same time, three men wearing masks and carrying handguns ran up to Litt's car. One man ordered Litt to get out and lie down. Litt got out of his car and shouted a warning to his co-workers. One of the masked men stayed with Litt while the other two ran toward the Wintec building. Litt heard gunshots just before Michael Jeng's car drove out of the lot. Litt then saw the two intruders run toward the back of the Wintec building, followed by the third man who had been guarding Litt. He heard another round of gunfire coming from the rear of the building. The white van then came from behind the building, stopped to pick up the third man, and drove away.
Teodoro Garcia was a security guard posted at the Wintec gate. He had the gate partly open and was watching the building, waiting for William Jeng to come out, when he was hit in the back of the head and knocked to the ground. He began to get up, but was ordered back down at gunpoint by someone wearing a ski mask. Garcia heard two gunshots.
Michael Jeng testified that he was standing next to Tsai's car, talking with Tsai through the passenger window as they waited for William Jeng to leave the building. Just as William came out, Michael heard Litt shout a warning. Looking toward the gate, Michael saw Garcia fall to the ground, and he also saw an intruder wearing a mask that covered his head. Tsai started his engine and drove toward the back of the building. Michael ran to his car and drove toward the gate. An intruder struck the car as he drove by, and Michael saw a second man near the gate who aimed a gun at him, causing Michael to swerve as he approached the gate. He heard gunshots as he passed through. Later that night, Michael discovered bullet holes in his car.
William Jeng testified that Wintec's inventory was worth millions of dollars and security was an important problem for his business. On August 28, 1998, William left the building after checking with Litt by walkie-talkie and arming the alarm. He saw Michael talking with Tsai, then heard a commotion outside the fence. He saw a masked intruder hitting Garcia. William quickly returned to the door of the building, unlocked it, went to his desk, called 911, and set off a silent alarm. After a while the operator told him the police were at his building, and it was safe to go outside.
Robert Sanders was the first officer to reach Wintec. He spoke with Litt, who said there had been three armed men in a white van, and he called an ambulance for Garcia, who was bleeding from the top of his head. Sanders joined another officer at the rear of the building, where they found a car with its lights on and its engine running, parked in an odd position. Tsai was slumped over in the driver's seat, moaning and unable to talk. He had been shot in the back, and eventually died from the wound.
Tsai's blue Honda had been damaged along its right side, which showed traces of white paint. It appeared the car had been pushed off the pavement by the van. There were two bullet holes in the back of the car. Two 9 millimeter Winchester shell casings were recovered near the Wintec gate. A third 9 millimeter casing was found in the same general area by a Wintec employee the next day. This casing was stamped ELD. Behind the Wintec building, four 7.62 millimeter casings were discovered. A fifth such casing was discovered near the gate. It was damaged, and may have been moved from its original position by a tire. Ballistics testing on the 9 millimeter casings was inconclusive as to whether they could have been fired by the same gun. All the 7.62 millimeter casings, however, appeared to have been fired by the same assault rifle.
Officer Scott Alameda was on patrol the night of August 28. As he began his shift around 8:40 p.m., he was notified of the attempted robbery and the shooting at Wintec. He learned that four suspects were traveling in a white passenger van. He drove toward Wintec, stopping around 9:00 to assist another officer who had pulled over a white van. After that vehicle was cleared, at 9:07, Alameda saw another white van in an intersection. He made eye contact with the driver and the passenger, and noticed the van had no rear seats. He followed the van, ran its license plate on his computer, and found that it was rented. The van turned into a parking lot. Alameda was blocked by traffic and had to drive on before finding a place to turn around. Returning to the parking lot, he saw the van come out and continue driving. Alameda noticed the van had no front license plate. He made a U-turn, caught up with the van, and turned on his emergency lights. The van pulled over.
Alameda approached the vehicle cautiously, since it may have been involved in...
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...... Cf. People v. Nguyen, 4 Cal.Rptr.3d 211, 232 (Cal.Ct.App.2003) (stating that instructions on lesser included offenses must be accompanied by corresponding ......