People v. Vu

• Decision Date: 06 October 2006
• Docket Number: No. G035831.,G035831.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Andrew Khac VU, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

49 Cal.Rptr.3d 765

143 Cal.App.4th 1009

The PEOPLE, Plaintiff and Respondent, v. Andrew Khac VU, Defendant and Appellant.

No. G035831.

Court of Appeal, Fourth District, Division 3.

October 6, 2006.

Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald A. Jakob and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

FYBEL, J.

INTRODUCTION

During the evening of June 7, 2002, 14-year-old Eddie Fernandez and several of his friends went to a cybercafé in Garden Grove and played games there. Eddie Fernandez never returned home. In the early morning of June 8, 2002, while on his way home, he was gunned down and bled to death.

Young Eddie Fernandez was the innocent victim of a conspiracy among members, associates, and friends of a criminal street gang. The conspirators sought revenge against a rival street gang. Fernandez and his friends who had accompanied him to the cybercafé were not gang members or associated with any street gang. The conspirators killed Eddie Fernandez because they mistook him and his friends for rival gang members. Eddie Fernandez was yet another innocent victim of criminal street gangs.

A jury convicted Andrew Khac Vu, a member of the Tiny Rascals Gang (TRG), of conspiracy to commit the murder of Eddie Fernandez (Pen.Code, § 182, subd. (a)(1)) (count 1); first degree murder (id., § 187, subd. (a)) (count 2); and street terrorism (id., § 186.22, subd. (a)) (count 3). The jury found true the allegation that Vu committed the crimes in counts 1 and 2 for the benefit of a criminal street gang. (Id., § 186.22, subd. (b)(1).) The trial court sentenced Vu under count 1 to a term of 25 years to life. Under count 2, the court imposed another 25-years-to-life term to run concurrently with the count 1 sentence. Under count 3, the court imposed an eight-month term to run consecutively to the term imposed under count 1.

Vu argues the convictions must be reversed because accomplice testimony was not sufficiently corroborated to be admissible. We hold that independent evidence sufficiently corroborated accomplice testimony by establishing motive and opportunity, placing Vu with the conspirators on the night of the murder, and showing he gave the police a false alibi after the crime. This corroboration evidence included cell phone records establishing the conspirators, including Vu, were in continual contact with each other during the night when Fernandez was murdered. The corroboration evidence was at least as strong as that found by the California Supreme Court in People v. Szeto (1981) 29 Cal.3d 20, 171 Cal.Rptr. 652, 623 P.2d 213 (Szeto) to be sufficient to corroborate the accomplice testimony.

In addition, we conclude the evidence, including accomplice testimony, was sufficient to support the convictions; the trial court's responses to jury questions, which Vu agreed to, were not erroneous; and Vu failed to show any of the jury instructions given was ambiguous. We agree with Vu the trial court should have stayed imposition of sentence under counts 2 and 3 pursuant to Penal Code section 654.

Accordingly, we modify the judgment as set forth in the disposition, but in all other respects affirm.

FACTS

We view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103; People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal.Rptr. 228, 721 P.2d 110.)

I. Nonaccomplice Evidence of Guilt

A. Gangs and Revenge

Vu was a member of TRG, a criminal street gang. Asian Boyz and TRG were rival street gangs. In October 2000, members of the Asian Boyz street gang attacked three TRG members. Vu, then 17 years old, suffered a stab wound in the attack. Another TRG member, Minot Ly, also was stabbed and died in Vu's arms. Vu was devastated: Ly had been Vu's best friend.

Ly's funeral was attended by Vu, Christopher Diep (Diep), Tho That Ton (Ton), Ron Hoang Le (Le), Anthony Nguyen, and Jack Tran San (San). Diep and Vu were TRG members. Ton was associated with TRG. Le, Anthony Nguyen, and San were considered "friends" of TRG.

Several Asian Boyz gang members were convicted in connection with the October 2000 attack. But, as the prosecution's gang expert testified, such lawful process would not satisfy a criminal street gang's thirst for revenge.

B. Fernandez is Gunned Down.

On June 7, 2002, about 6:00 p.m., Eddie Fernandez and his friends B., M., and S.¹ walked to the I.C.E. cybercafé on Brookhurst Street and Chapman Avenue in Garden Grove. All were 14 years old, and none was a gang member. All are Hispanic, except for M., who is Asian. At the cybercafé, they played Counter-Strike, a computer game.

About 9:30 or 10:00 p.m. on June 7, a group of about 20 youths, mainly Asians, arrived at the I.C.E. cybercafé in 15 to 20 cars. Most stayed outside and loitered; some walked inside to use the restroom. The proprietor of the I.C.E. cybercafé had a continuing problem with loiterers, and the restroom wall and the pool table at the I.C.E. cybercafé had been tagged with the initials "A.B."

The cybercafé owner told Fernandez and his friends they had to leave because curfew had passed. Afraid of the people loitering outside, Fernandez and his friends waited a while before calling for a taxi.

A black Acura Integra circled the parking lot as Fernandez and his friends waited outside for the taxi to arrive. The four young men inside the black Acura "mad dogged" (gave angry or ugly looks to) Fernandez and his friends. The Acura stopped, the front seat passenger flicked a cigarette toward the foursome, and the car sped off. M. earlier had seen the four men in the Acura playing pool at the I.C.E. cybercafé. At trial, B. identified the person flicking the cigarette as San. Fernandez and his friends did not want trouble, so some of them went back inside the cybercafé to wait for the taxi.

The taxi finally arrived. Fernandez, B., M., and B.'s friend Michael got inside. S. decided to use other means to go home. Fernandez sat in the middle of the backseat, with Michael and M. on either side of him, and B. sat in the front passenger seat. The taxi traveled down Brookhurst Street and made a right turn on Lampson Avenue. At the intersection of Lampson Avenue and Magnolia Street, B. noticed a car behind the taxi, and Michael said someone was following them. M. turned and saw a black Acura Integra following the taxi.

The foursome asked the taxi driver to stop on Adelle Street, near S.'s house, because they did not have enough money to go farther. As they got out of the taxi, B. heard car brakes slam. He looked over and saw a black car. At trial, for the first time, B. described that car as the black Acura that had circled the cybercafé parking lot. B. testified a man with black, "spiked" hair got out of the Acura from the front passenger seat and started firing a gun aimed straight at them. At trial, for the first time, B. identified the man shooting as San. After hearing gunshots, B. and M. first ran behind a car to hide, then ran into an apartment complex to wait for the Acura to leave. A minute later, they hopped a fence and ran to another apartment complex. While running, they saw the black Acura Integra drive into the spot where they had been.

At trial, M. testified a white Toyota and a black Acura stopped behind the taxi as he and his friends stepped out of it. A man with black, slicked-back hair got out of the white Toyota. He had a gun. M. could not identify the man in a police interview following the crime. At trial, for the first time, M. identified the man as San. M. testified a bald-headed man got out of the black Acura. Both the bald-headed man and San started shooting at M., B., Michael, and Fernandez.

At around 12:50 a.m. on June 8, Garden Grove Police Officer Michael Reynolds was dispatched to the scene of a shooting on Adelle Street. When Reynolds arrived at the scene, he saw a yellow taxi parked in the street and a white Toyota that had jumped the curb. The Toyota's engine was running, a key was in the ignition, and the driver's side door was jammed open against a fence. A vehicle check disclosed the Toyota was stolen. The taxi's rear passenger door was open. Fernandez was lying on the pavement near the door. He had lost a large amount of blood from a gunshot wound to his left side, but was alive. Reynolds and two other police officers tended to Fernandez until paramedics arrived and transported him to a hospital.

Fernandez bled to death. He had suffered five gunshot wounds, perforating his right lung, right diaphragm, liver, spleen, abdominal aorta, inferior vena cava, and bowel.

A revolver was found near the intersection of Beach Boulevard and Trask Avenue in Garden Grove. The revolver's chamber held two empty shell casings. A forensic scientist determined the five bullets removed from Fernandez's body were fired from that revolver.

C. Vu's Police Interview

The police interviewed Vu on June 10, 2002. The interview was videotaped. The videotape was marked as exhibit 43 and played for the jury. A transcription of the videotape was marked as exhibit 44 and published to the jury.

Vu told the police he had been "jumped" into TRG at age 16, but claimed he had been "jumped out" a few months after Ly was killed. He said he drove a black Toyota Corolla. He said he loaned the car to Khoi Nguyen on June 9, 2002. Vu said he went to Vi Thao (Vicki) Bui's house in the evening of Friday, June 7, to watch a basketball game. He claimed that when the game ended, he, Khoi Nguyen, and Bui went to see the 10:15 p.m. showing of Spider-Man at Triangle Square in Costa Mesa. When the movie ended, sometime after midnight, the three of them went to a cybercafé in Costa Mesa. They stayed there for about an hour, then...