Appeal from a judgment of the Superior Court of Orange County, Robert R. Fitzgerald, Judge (Retired judge of the Orange Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified. (Super. Ct. No. 01WF0544).
The opinion of the court was delivered by: Sills, P. J.
CERTIFIED FOR PUBLICATION
Three members of two Vietnamese gangs aligned with each other entered an apartment complex in search of a particular member of a rival Vietnamese gang who call themselves the "Oriental Play Boys." They found the rival gang member in a parking lot. When the rival gang member fled, one of the assault team, appellant Quang Minh Tran, shot at him and missed. Two of the team then bumped into an innocent bystander, carrying groceries. Tran exclaimed, mistaking the bystander for a member of the rival gang, "Hey, that‟s Play Boy." Then, as the bystander fled, Tran crouched on the sidewalk, took aim, and shot him.
This time his aim was better. The shot went through the bystander‟s back, exited his abdomen, then lodged in his arm. The bystander bled to death. When Tran learned a month later that the bystander was innocent of affiliation with the rival gang, he said, "Fuck it, like oh well."
Tran was later caught, tried, and sentenced. The constituent parts of his sentence are:
(1) 25 years to life for the murder of the bystander.
(2) 10 years for use of a firearm in the bystander‟s murder (the upper term).
(3) 3 years for a gang enhancement.
(4) Life with possibility of parole for the attempted murder of the rival gang member.
(5) 10 years for use of a firearm in the attempted murder of the rival.
(6) 3 years for a gang enhancement on the attempted murder.
(7) And the upper term of 3 years for street terrorism.
All parts of the sentence are to run consecutively. Adding up the numbers for everything except the life-with-possibility-of parole term for the attempted murder results in a sentence of 54 years to life, at which point Tran can begin his life sentence with the possibility of parole.
In this appeal, Tran raises these six basic*fn1 issues:
(1) An Evidence Code section 352 challenge to evidence that Tran and three other fellow gang members had been involved in a series of protection racket extortions of Vietnamese businesses in 1993 and 1994 on behalf of the gang.
(2) An Evidence Code section 352 challenge occasioned by a gang member witness‟s blurting out the fact that his sister had been "executed."
(3) A charge of juror misconduct based on trial counsel‟s affidavit that she had spoken to some of the jurors after the trial and one had said he believed in caning for recidivists.
(4) The question of whether the three years for the street terrorism conviction punished Tran for the same acts as the murder and attempted murder. (See generally, Pen. Code, § 654.*fn2
(5) A Cunningham*fn3 challenge to the court‟s use of upper terms and consecutive sentences based on some facts -- prior convictions and prison sentences as an adult -- that had not been found by the jury.
(6) A challenge to the trial court‟s use of consecutive sentences based on the use of a gun, when the use of a gun already had been used to impose gun enhancements.
All but one of these arguments ultimately fail. The testimony about the extortions was highly relevant to prove gang affiliation. The prosecutor couldn‟t help the witness‟s spontaneous elaboration as to why he was afraid, and, in context, there was no reason for the jury to assume that Tran, as distinct from somebody else, had executed the sister. The juror misconduct argument fails because a mere belief in caning as a punishment, in the abstract, does not equate with an inability to be fair in judging the facts of a given case. The Cunningham challenge is obviously a simple exercise in "issue preservation" in the hope that one day the federal courts will reject the reasoning of our highest court in People v. Black (2007) 41 Cal.4th 799. And, while the use of a gun should not have been among the bases to both enhance Tran‟s sentence as well as having been one of several factors in the trial court‟s decision to impose consecutive sentences, we cannot say that there is a reasonable probability the trial court would do anything different on remand: Several other factors easily sufficed to justify consecutive sentencing.
The "654 issue," however, is different. This court‟s decision in People v. Herrera (1999) 70 Cal.App.4th 1456, upholding a street terrorism conviction against a 654 challenge, is distinguishable. In Herrera, the defendant had an intent to kill people independent of their gang affiliation that was separate and independent of his intent to promote his gang. Here, however, at the two moments Tran pulled the trigger, in the one instance he was aiming at someone he knew to be a rival gang member and in the other instance he was aiming at a bystander whom he thought he was a rival gang member, as shown by the fact that, as he aimed the gun, he exclaimed, "That‟s Play Boy," referring to a rival gangster. Moreover, the trial judge told the jury that the sole basis for the street terrorism conviction had to be either the attempted murder of the rival gang member, or the actual murder of the bystander whom he thought was a rival gang member. Under such circumstances, People v. Vu (2006) 143 Cal.App.4th 1009 -- where there was, like here, only one objective and intent in pulling the trigger -- requires us to reverse the street terrorism conviction. Rather than remand for resentencing, though, we will simply modify the judgment on appeal to stay the sentence of three years for street terrorism. Tran will now be able to begin serving his life sentence with possibility of parole after 51 years, instead of 54.
Like other gang-related tragedies, we must begin by noting the existence of the competing foes. In this case, the feuding groups are two Vietnamese gangs, one known as the "VFL" or "Vietnamese for Life" and the other, the "OPB" or "Oriental Play Boys." A third gang, known simply as "V" plays a minor role in the story, since the "V" gang was on relatively good terms with the VFL at the time of the two shootings; indeed, a "V" member was present at both shootings and supplied the trial court with much of the testimony about precisely what happened.
On the morning of May 6, 1997, Duc Vuong, an OPB member, drove fellow OPB gang members "Wes" and "Andy" in his Acura to a gas station. When a Honda carrying three VFL members drove into the station, one of the VFL members asked what gang the three OPB members belonged to. Rather than answer, Wes drew a gun from his waistband. The Honda with the VFL members took off. Vuong got the gun and fired a "warning shot."
Soon after the gas station incident, Tran contacted Qui Ly, a V gang member, for some guns. Once Ly met up with Tran to give him the guns, Ly learned that Tran needed the weapons because Tran wanted to retaliate against the OPB for the disrespect shown the VFL at the gas station. Ly, Tran, and other V and VFL gang members went to a private garage to discuss retaliating against Vuong. They planned to have Tran and two other VFL members carry guns into Vuong‟s home while the rest were to drive and wait in one of three cars. Their plans changed when they determined that Ly would not be a good getaway driver (he didn‟t know the fastest way to the freeway), so he was subbed in as a shooter for one of the VFL members.
2. The Initial Assault on Duc Vuong
Later that day, Vuong walked outside his apartment to pick up items from his car trunk. When he closed his trunk, he saw three men standing in front of him, including Tran. Tran fired the first shot at Vuong, then Ly and "Uncle Dave" (Huan Hoang Nguyen) also fired shots.
Vuong fled to his apartment. More shots were fired, one ultimately hitting Vuong‟s right shoulder.
3. The Shooting of the Bystander
About the same time as the attack on Vuong, Lon Bui had gone to the market with his mother to buy groceries. His mother lived across the street from his aunt, who lived in the same apartment complex as Vuong. While Bui was holding the groceries and using a key to open the front gate to the apartment complex, he chanced upon Tran and Ly as they were fleeing after shooting at Vuong. Bui turned to run away, but Tran told Ly, "Hey, that‟s Play Boy . . . that‟s him, that‟s him, that‟s Play Boy."
And with that, Tran kneeled down on one knee, took aim, and shot Bui. A shot went through his back, exited his abdomen, and lodged in his right arm. Bui bled to death.
A month later, at a wedding, Tran would learn from Ly that Bui was not a member of OPB. His response was terse. "Fuck it, like oh well."