People v. Tran

• Citation: 54 Cal.Rptr.2d 905,47 Cal.App.4th 759
• Decision Date: 18 July 1996
• Docket Number: No. H013258,H013258
• Court: California Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 5373, 96 Daily Journal D.A.R. 8691 The PEOPLE, Plaintiff and Respondent, v. Tan Minh TRAN, et al., Defendants and Appellants.

Page 905

54 Cal.Rptr.2d 905

47 Cal.App.4th 759, 96 Cal. Daily Op. Serv. 5373,

96 Daily Journal D.A.R. 8691

The PEOPLE, Plaintiff and Respondent, v. Tan Minh TRAN, et al., Defendants and Appellants.

No. H013258.

Court of Appeal, Sixth District, California.

July 18, 1996.

As Modified on Denial of Rehearing

Aug. 15, 1996.

Review Denied Nov. 26, 1996.

David D. Carico (Under appointment by the Court of Appeal), Monterey and George L. Schraer (Under appointment by the Court of Appeal, Berkeley in association with the Sixth District Appellate Program), for Appellants.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Sr. Assistant Attorney General, Stan M. Helfman and Christopher J. Wei, Deputy Attorneys General, for Respondent.

ELIA, Associate Justice.

This appeal arises out of appellants' conviction for various charges stemming from a near fatal shooting at a restaurant in a food court at a shopping center. A jury convicted appellants of conspiracy to commit first degree murder (Pen.Code, § 182, subd. (a)(1)), attempted premeditated murder (Pen.Code, §§ 664/187), second degree burglary (Pen.Code §§ 459/460, subd. (b)) and two counts of assault with a firearm (Pen.Code, § 245, subd. (a)(2)). Appellant Vinh Chi Nguyen was also convicted of possession of a firearm by an ex-felon (Pen.Code, § 12021, subd. (a)). Tan Minh Tran was acquitted of shooting into an inhabited dwelling (Pen.Code, § 246). The jury also found true various arming and great bodily injury enhancements against Nguyen. It found true all the arming allegations against Tran but found not true the great bodily injury allegations against him. Both appellants were sentenced to state prison for 36 years to life. ¹

On appeal, Nguyen, joined by Tran, contends that the shooting victim's mental and physical infirmities precluded any meaningful opportunity for cross-examination and that the trial court abused its discretion in permitting this witness to testify. Tran, joined by Nguyen, contends that the convictions for conspiracy to commit first degree murder and attempted murder must be reversed for lack of substantial evidence that murder was the object of the conspiracy. Nguyen and Tran both allege several forms of sentencing error. We remand the matter for resentencing as to appellant Tran, direct the clerk to strike one enhancement as to Nguyen, and otherwise affirm.

Appellants' convictions arise out of a shooting on the evening of August 31, 1992, at the Call Me Dragon restaurant in the Lion Plaza shopping center in San Jose. About 7:00 that night, Tuan Nguyen (Tuan) was drinking coffee in a cafe when appellant Tran, accompanied by appellant Nguyen, approached him. ² Tran asked to borrow Tuan's brown Oldsmobile. He said he just needed it for a little while. Tuan agreed to lend Tran his car.

About an hour later, Quoc Chi Tran (Quoc) and Ahn Quang Tran (Ahn) were sitting at a table at the Call Me Dragon, eating with friends. An Asian or Vietnamese man, subsequently identified as Nguyen, approached the table. His jacket was open and his hand was at his waistband. Nguyen started speaking and called someone a name. Ahn immediately got up from the table and grabbed the arm at Nguyen's waistband. Nguyen had a pistol and pointed it at Ahn's midsection. Ahn and Nguyen struggled. As they wrestled out of the food court, Nguyen fired the pistol inside the restaurant. Quoc heard more shots. One shot hit Ahn in the head. Quoc ran to help Ahn. He saw Ahn on the ground bleeding from the head injury. Another man, later identified as appellant Tran, ran toward the restaurant with a sawed off shotgun. Quoc was struck in the upper back and neck by a shotgun blast.

A security guard at the scene heard shots and saw a man with a handgun leave the food court and walk toward the parking lot. He saw the man with the shotgun, Tran, pass him without speaking to him and move toward the food court. After pumping his shotgun in the food court area, Tran followed the same path to the parking lot. The man with the handgun got into the brown Oldsmobile. Tran was too late to get into the car and had to run for it.

Another witness saw the Oldsmobile speed around the corner about three quarters of a block from Lion Plaza. The Oldsmobile sped down the street with two wheels on the sidewalk. It stopped, and the passenger stepped out holding a handgun. He said something to the driver and stuffed his pistol into his waistband. The two men ran down a small alley which divided two medical buildings. At the same time, a third man came running from around the corner. He was yelling at the other two men. All three ran to the rear of the medical complex. This witness called the police.

Near the medical complex, the police found the brown Oldsmobile. Four of Nguyen's fingerprints were found on the car. Near the medical buildings, the police also found a .380 caliber semi-automatic handgun and a sawed-off shotgun. Spent casings recovered at the restaurant matched rounds found in the pistol and shotgun. An expert concluded that both rounds from the shotgun and the fired cartridge casings found at the scene came from the guns recovered at the medical building.

Appellant Tran was found walking through a parking lot nearby. Interviewed by the police, he initially denied shooting a weapon. He said he had found a shotgun two days earlier at the Plaza and had hid it under a garbage can. When he heard gunshots from inside the food court, he retrieved the shotgun and went inside the food court and shot it.

Ahn was in a coma for many months following this shooting. When he awoke, he was unable to speak. He testified at trial by tapping a pencil in response to questions, once for yes and twice for no. In this manner, he said he remembered going out one evening with Quoc. He remembered getting into a fight with a man inside a building and that the fight continued outside the building. He identified the man with whom he was fighting as appellant Nguyen.

Appellant contends that the trial court committed reversible error in permitting Ahn Tran to testify. First, he contends that the severity of the victim's physical and mental infirmity precluded any meaningful opportunity for cross-examination in violation of appellant's rights under the Sixth Amendment of the United States Constitution and article I, section 15 of the California Constitution. In a related contention, he argues that the trial court abused its discretion under Evidence Code section 352 in permitting Ahn Tran to testify.

The prosecutor informed the court that she wanted to call the victim, Ahn Tran, as a witness. As a result of the shooting, Ahn is a quadriplegic, with extreme spasticity and freezing of his joints. He was in a coma for eighteen months following the shooting when, in December of 1993, he awakened from his comatose state. His doctor considered this "unbelievable" and "quite remarkable."

When asked about the affects of Ahn's brain damage on his ability to reason, the doctor responded "Well, I think that's a very broad process, reasoning. I think if you were to get to specifics, Mr. Tran recognizes his family and communicates with his family. And in doing so, recalls his entire life up to the time of the accident. So in that sense, you know he's got good brain function. [p] Now, is he going to be able to, if he went to a class and ... a book was read to him and he was asked, given a test on some comprehension for that, I don't know how he would do."

Although Ahn is unable to speak, and has a tracheotomy, he communicates by tapping for a yes or no answer, and can write in Vietnamese or English if someone assists him by moving the paper. At the time of Ahn's testimony, Ahn's doctor told the court "He is in a communicative state. I asked him numerous questions. He was either squeezing my hand once for yes, twice for no, or tapping his board there once yes, twice no. [p] He understands that he's here at the courthouse. He understands that he's to come in here and answer questions. I asked him if he was willing to do that. He said, 'yes.' I asked him if he was tired. He said, 'no.' "

The defense moved to disqualify the witness as incompetent and objected to being required to ask only yes or no questions. The defense also objected to the witness's testifying without a hearing outside the presence of the jury to see if he could be cross-examined, and further objected under section 352 of the Evidence Code. The court permitted the witness to testify, commenting that to refuse to do so would be "depriving [the prosecution] of the right to call a witness who appears to have at the present time sufficient ability to testify."

Before this witness testified, the court explained Ahn's physical condition to the jury and told them "as you heard the doctor testify, [Ahn] does not speak, so he's going to tap once for yes and twice for no. And counsel are going to have to word their questions to call for a yes or no answer.... [p] Now, the main thing that you have to keep in mind of this is that it has been represented to me he has some testimony which the prosecution wants you to hear and that counsel are going to have to cross-examine him. And this is a lot harder for the attorneys to operate the parameters than a normal witness. Please try to evaluate his credibility within these limitations and understand the peculiar way in which he is testifying. He's not the first person to do this, nor I suspect he'll be the last."

After establishing that the Vietnamese interpreter could communicate with Ahn and could state for the record whether he was tapping once for yes and twice for no, the court permitted Ahn to be sworn as a witness. Ahn then testified by answering yes or no questions. The prosecutor established in this way that Ahn remembered the night of August 31, 1992, and that he had gone out with his friend Quoc Chi Tran. He did not remember the Call Me Dragon...