People v. Tran

• Decision Date: 09 June 2020
• Docket Number: D075280
• Citation: 50 Cal.App.5th 171,263 Cal.Rptr.3d 740
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. HUNG TRAN, Defendant and Appellant.

50 Cal.App.5th 171

263 Cal.Rptr.3d 740

The PEOPLE, Plaintiff and Respondent,

v.HUNG TRAN, Defendant and Appellant.

D075280

Court of Appeal, Fourth District, Division 1, California.

Filed June 9, 2020

Certified for Partial Publication.^*

Spolin Law and Aaron Spolin, Los Angeles, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.

HUFFMAN, J.

A jury convicted Hung Tran of assault by means likely to produce great bodily injury ( Pen. Code,¹ § 245, subd. (a)(4) ; count 1) and mayhem (§ 203; count 2). In regard to count 1, the jury found true that Tran personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (b)).

The court sentenced Tran to prison for four years. In doing so, the court struck the great bodily injury allegation and stayed the sentence under count 2.

Tran appeals, contending the court erroneously admitted into evidence "doctored" videos used by the prosecution's expert witness during his testimony; substantial evidence does not support his conviction under counts 1 and 2; the court erroneously admitted lay opinion testimony from a prosecution witness; and Tran's trial counsel was prejudicially ineffective. We determine that none of Tran's claims has merit and affirm.

FACTUAL BACKGROUND

In the summer of 2016, M.C., his cousin, and his friends were experiencing the nightlife in San Diego's Gaslamp Quarters. Around 1:30 a.m. on Saturday, August 27, 2016, M.C. and his friend A.N. left Fluxx Nightclub and walked to The New Yorker to grab a slice of pizza. The Gaslamp district was crowded at the time because the bars were about to close at 2:00 a.m.

Around the same time, two groups of people had been quarreling inside the Gaslamp Café, which prompted D.M., one of the establishment's bartenders and servers, to ask them to leave. The two groups exited the restaurant. One of the two groups consisted of Tran, his girlfriend K.B., his brothers T.T. and D.T., his cousin D.X., and three friends: D.M., K.N., and S.P., who were all in San Diego to celebrate T.T.'s birthday. Multiple witnesses described Tran's group as being of Asian ancestry.²

On the other side of the dispute were two unidentified African American men, although one eyewitness identified them as "a few Hispanics" and another recalled them being of Asian ancestry as well. None of the individuals involved in the argument were known to be affiliated with any gang.

Around 2:00 a.m., shortly after leaving the Gaslamp Café, the two groups remained agitated and congregated in the patio area outside the café where they continued to yell at each other. While eating their pizza, M.C. and A.N. heard "a lot of yelling" from the argument outside the nearby Gaslamp Café, as the two groups splintered into multiple groups of people arguing, escalating the intensity, and eventually leading to physical altercations.

As dozens of people surrounded or became ensnared in the rapidly escalating confrontation, bystander D.M. tried to intervene, but without success. Also trying to defuse the situation, M.C. and A.N. walked toward the center of the conflict and attempted to break up the fight and prevent further escalation. They both inserted themselves in between combatants and tried to push them away from each other. A.N. recalled lifting his hands and pushing on the chests of the men engaged in fisticuffs.

As chaos ensued, the two African American men walked away from the altercation, but multiple members of Tran's group instead shifted their aggression toward M.C. and A.N. One of the women in Tran's group told A.N. not to intervene. Moments later, Tran's brother T.T. moved toward A.N. to ask him, "What's up? What's up?" A.N. tried to ease the tension, responding, "the cops are coming, and I know nobody wants to go to jail." But T.T. responded, "Oh, so you want to talk shit?" Just as A.N. signaled for T.T. to back up, another Asian American man swung at A.N. but missed, while a third Asian American man from Tran's group landed a punch in A.N.'s ribs. A.N. then countered by punching the third man in the face, which dislocated one of A.N.'s fingers.

While A.N. tried to defend himself from attacks, M.C.'s interceding efforts were similarly thwarted once three Asian American men wearing dark colors suddenly started "punching and kicking" him. While standing, M.C. raised his arms to defend himself from the blows. M.C. did not fight with any other individuals. His three attackers collectively pushed M.C. to the ground, toward the back end of a car.

After this first fall to the ground, M.C. was able to stand up "for a second." But almost immediately after M.C. stood up, he ended up back on the ground again. Tran, who was standing by M.C.'s side, flipped M.C. over, causing his head to be slammed into the hard concrete of Fourth Avenue. S.M., the General Manager of the La Puerta Bar, had a "clear shot" of the moment, witnessing a "shorter, stocky Asian male" perpetrator³ –with a "fuller" face and "spikey" hair, standing five feet eight inches "if that" and 160 pounds⁴ —picking up the victim, flipping him, and then "body-slamm[ing] him, with the victim's head and the back of the neck hitting the ground, and then he landed his weight on him and threw a couple of punches." Tran straddled—"almost like sitting on"—M.C. as he repeatedly punched the victim in the face. A bystander's Snapchat⁵ video depicted Tran punching M.C.'s paralyzed body at least five times. And Tran could not be excluded as a major contributor to the mixture of DNA found on M.C.'s shirt as well as the bottom of his shoe. Immediately after Tran punched M.C., Tran's girlfriend K.B. then approached "and threw a couple of punches" at M.C.'s head as well. S.M. described K.B.'s punch as a "haymaker," meaning a very violent punch with the intent to knock someone out. S.M. was unsure, however, whether K.B. actually landed a punch. Tran did not stop punching M.C. until D.M. approached and pulled him off of the victim. About the same time, Tran's brother T.T. pulled K.B. away from M.C. and gestured that they should all leave. Tran and his group abandoned M.C. and walked to the nearby sidewalk where Tran took off his shirt and wiped his face.

After he removed his button-down shirt, Tran was still wearing an undershirt. Neither Tran nor K.B. appeared to be significantly injured. Tran and his group then returned to the Hard Rock Hotel, where they were staying that evening.

When A.N. returned to M.C., he found M.C. lying motionless in the middle of Fourth Avenue. From that point on, M.C. was unable to move any part of his body below his neck; as he stated at trial, "[i]mmediately after I hit the ground, I just felt everything shut down." Z.T., a Gaslamp Café employee, and S.M. both separately called 911 after witnessing M.C.'s injury.

With the aid of other bystanders, A.N. helped move M.C.'s body from the middle of the street to the sidewalk and remained with him until an ambulance arrived. Paramedics transported M.C. to the UC San Diego Hospital, where he underwent multiple surgeries after sustaining a severely crushed spinal cord and several broken neck bones.

Neither the victim nor any of the eyewitnesses at trial positively identified Tran—or anyone else—as the one who slammed M.C. onto the ground and caused his paralysis. While at least one video captured M.C. and another person falling to the ground at high velocity behind a car, no camera was positioned to capture Tran flipping M.C. over or otherwise knocking M.C. down on his head.

At trial, an orthopedic spine surgeon explained that M.C. received "devastating vertebral column or spine injuries

to the bones." He testified that such injuries required "a very large velocity and force" that typically involves spinal bone fractures and retropulsion into the spinal cord. He agreed that M.C.'s injuries were consistent with someone being thrown or dropped on their head. At the time of trial, M.C. remained a quadriplegic, paralyzed from his shoulders down.

DISCUSSION

I

THE VIDEOS OF THE INCIDENT

A. Tran's Contentions

Tran asserts that the trial court erroneously admitted a "doctored" video⁶ that was "compiled by" the prosecution's expert witness Grant Fredericks. As a threshold matter, we observe the use of the term "doctored" connotes that Fredericks somehow manipulated or falsified the video.⁷ Tran provides absolutely no evidence whatsoever to support such a serious allegation. In the absence of any evidence to support a claim that the other side fabricated evidence, a party or his or her attorney would be wise to avoid such inflammatory accusations.

If we look past Tran's hyperbole, it appears Tran challenges Fredericks's testimony about the videos after he enhanced them, arguing Fredericks "became the [fact finder] who decided and shaped the facts of the case instead of the jury." Specifically, Tran argues the videos were improperly enhanced by Fredericks when he adjusted the height and width ratio on a video, synchronized multiple videos, corrected the blurring of a video, and used color coded arrows to identify certain individuals on the videos, including Tran. Tran then baldly asserts these enhancements resulted in Fredericks invading the province of the jury by making key factual determinations.

However, Tran's argument that Fredericks usurped the jury's role is undermined by later portions of his own brief. For example, Tran admits Fredericks testified that when and where he could not definitively identify a person in the video, he did not identify that person with a colored arrow. As Tran notes and one of the videos shows, at the time when the victim was slammed to the ground head first, there is no color coded arrow indicating Tran was near the victim at that time. Further, Tran emphasizes that there are 2.7 seconds of the video near when the victim is injured where there is no indication that Tran is in the...