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The People v. Ba Tran

April 29, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
BA TRAN, DEFENDANT AND APPELLANT.



Trial Court: Santa Clara County Superior Court No.: CC826024 Trial Judge: The Honorable Ron M. Del Pozzo

The opinion of the court was delivered by: Rushing, P.J.

CERTIFIED FOR PUBLICATION

(Santa Clara County Super. Ct. No. CC826024)

I. STATEMENT OF THE CASE

A jury convicted defendant Ba Tran of first degree murder and found that in committing it he personally discharged a firearm and caused great bodily injury. (Pen. Code, §§ 187, 12022.53, subds. (b), (c), & (d).) The court sentenced him to an indeterminate term of 50 years to life. On appeal, he claims the court erred in admitting testimony about statements defendant's brother made to a third party that incriminated defendant.

We find no error and affirm the judgment.

II. FACTS

Defendant Runs Fronts for Prostitution

Officer Ryan Chan of the San Jose Police Department testified as an expert on prostitution in Santa Clara County. He said that nail salons, massage parlors, and barber shops often operate as fronts for prostitution. He explained that an owner will set up the front business and then delegate the day-to-day operation and security to a manager. The prostitutes split their earnings with the manager and owner. Officer Chan opined that in Santa Clara County, Asian gangs were not directly involved in running prostitution businesses or extorting money from them.

On April 3, 2008, Officers Chan and Dan Anderson of the San Jose Police Department conducted a sting operation at the Fantasy Salon on East Santa Clara Street in San Jose. Defendant's signature was on the lease for the salon. Officer Anderson negotiated a sex act with a woman in exchange for marked money. When she offered him a condom, he feigned heart problems, and defendant told him to leave. Officer Chan arrested defendant. He found large amounts of cash on his person and in his car. He also found the address of the Relax Health Spa among defendant's papers. He conducted a sting there, and learned that defendant's name was on the lease.*fn1

The Murder

At around 8:00 p.m. on November 17, 2008, Tuyet Tran, defendant's mother, came home. Defendant and his brother Tommy Tran were there.*fn2 Tuyet's red Mustang and a white Camry were parked out front. Defendant left at 8:30 p.m. Tuyet testified that defendant had long hair on the top and sides of his head. She said that defendant rarely drove the Mustang, and she denied telling the police that he left that evening in the Mustang.

Morgan Bruner testified that around 10:30 p.m. that night, he was driving on the Southwest Expressway and heard a burst of gunshots. He then heard a large engine revving and saw a red Mustang convertible speed by. The driver, who was its sole occupant, had very short hair on the sides of his head. Sometime later, Bruner identified a photograph of a burned out Mustang as the car he had seen.

Melanie Acena lived at the apartment complex near the expressway. She testified that around 10:30 p.m. that evening, she heard three or four gunshots followed by two or three more. She looked out the window and saw a man standing in front of a Honda. He then walked to a red Mustang about 50 feet away, entered, and drove away by himself.

Officer Kevin Laundrie of the San Jose Police Department responded to a report of gunshots near the expressway. He found a Honda stopped in the middle of the road. Its hazard lights were blinking, and the driver's side window was smashed. Inside, Dieu Nguyen was slumped over the center console and dead from multiple gunshot wounds. Sometime later, police searched the victim's house. They found an agreement to buy the Relaxation Health Center from Monica Ho and documents concerning how much money the victim had paid and the amount she still owed.*fn3

Later that same night, police responded to a report of a burning Mustang. It was registered to defendant's mother. Inside, police found an expended nine millimeter shell casing consistent with those found at the scene of the murder. All of the shells had been fired by the same gun.

Very early the next morning, police searched Tuyet's house. She initially was cooperative but became evasive. Police found a letter from Ho, business cards for the Relaxation Health Center, several driver's licenses for Vietnamese women, and a binder full of money. Tuyet knew Ho and said she was defendant's friend or girlfriend. She had seen them together. Ho's nickname for defendant was "King." Police also found several gun targets and a live nine millimeter round.

Jim Cook testified as an expert on cell phone sites and call location. He developed overlapping maps concerning the location of cell phones belonging to defendant, Tommy, Johnny Trieu, and Ho. He testified that on the night of the murder, there were a number of calls from defendant's phone to Ho's phone from a location between the victim's home and the scene of the shooting. There were calls from defendant's phone to Tommy's phone from the scene of the shooting around the time it happened. There were additional calls from defendant's phone to Tommy's and Ho's phones a few minutes later from a location near Tuyet's residence. Cook also testified that there was a call at 10:53 p.m. from Tommy's phone to Trieu's phone.

Trieu, who said he was loyal to Tommy and would lie for him, testified that sometime after 10:00 p.m. that night Tommy called him and later came by and asked if he wanted to go some place to talk, drink, and fish. He said that something big had happened and he needed to burn some clothing. They drove to the Rio Vista area, where they burned clothing. While there, Tommy told Trieu that defendant had done something "really bad," namely, he had shot someone. Tommy also said that he had helped defendant burn his car. Tommy advised Trieu that if Trieu was questioned by the police, he should say that they had gone fishing and then slept most of the time.

Trieu testified that they returned to Tommy's house the next morning, and both slept there. Later that morning, they went out for some food and were stopped by the police. Trieu was scared and did not ask why they had been stopped. Later, at the station, ...


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