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Superior Court of Orange County, No. 99NF2555, John J. Ryan, Judge.
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Gary D. Garcia, Deputy State Public Defender, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Werdegar, J., with Cantil-Sakauye, C. J., Baxter, Chin, Corrigan, Liu, and Kennard [*], JJ., concurring. Concurring Opinion by Liu, J.
[173 Cal.Rptr.3d 9] [326 P.3d 945]
A jury convicted defendant Dung Dinh Anh Trinh (Trinh) of three counts of first degree murder with a multiple-murder special circumstance, one count of attempted murder, and various firearm enhancements for the shootings and attempted shooting of four staff members at an Anaheim hospital. (Pen. Code, § § 187, 189, 190.2, subd. (a)(3), 664.)  Trinh's first two penalty trials resulted in hung juries, but the third penalty jury returned a death verdict. On automatic appeal, we affirm the judgment in its entirety.
I. Factual and Procedural Background
A. Guilt Phase Trial
1. Prosecution Evidence
On the morning of September 14, 1999, Trinh's mother Mot Trinh (Mot) died of [326 P.3d 946] cardiac arrest. A few hours later, shortly after 10:30 a.m., Trinh entered the West Anaheim Medical Center (West Anaheim), where Mot had been a patient in May and June 1999. He was armed with two .38-caliber handguns and more than 100 rounds of ammunition.
Hospital employees saw Trinh walk down a second-floor hallway and turn into the office of nursing supervisor Mila Salvador. Salvador was in conversation with a nurse's aide, Marlene Mustaffa. Trinh shot Mustaffa in the head from a foot away. He then pointed a gun at Salvador and fired but missed. Trinh immediately left. Salvador barred the door to her office, attempted to resuscitate Mustaffa, failed, and called 911.
The firing of shots triggered a " code gray" announcement over the hospital public address system, a warning that generally signaled the presence of an unruly patient. The announcement directed male personnel to respond immediately to the progressive care unit on the second floor. Andrew Armenta, working on the first floor, saw Vincent Rosetti running toward a stairwell leading to the second floor and ran behind Rosetti to the stairwell. At the
bottom of the stairs, he heard three shots, stopped, and retreated. Rosetti's body was later found in the stairwell; he had been shot in the head and neck from a foot or two away.
Staffers Norman Bryan and Ronald Robertson also responded to the code gray from the first floor. As Bryan and Robertson approached the stairwell to the second floor, they heard a gunshot. Bryan turned to evacuate employees, while Robertson ran to close off the first-floor lobby doors. As Robertson was trying to close the doors, Trinh approached him and shot him in the chest. Robertson grabbed Trinh and they fell to the ground. Trinh shot Robertson again. Staffer John Collins and patient Joseph Nuzzo joined in and together pinned down Trinh. While he was being held, Trinh said twice, " They killed my mother" or " You killed my mother." Two handguns, a pouch, and bullets were scattered across the floor; staffer George Wilhelm picked up the guns and locked them in an office. Robertson was taken to the emergency room, where he died.
Police responding to the scene took Trinh into custody. After being placed in the back of a patrol car, Trinh stated angrily, " You American people kill my mother. Now I kill you. You kill my people. I kill you. You know, you just kill my mother. Right now she lay at Martin Luther Hospital by herself. You kill her."
[173 Cal.Rptr.3d 10] A search of Trinh's truck revealed a map with Martin Luther Hospital circled on it and empty boxes of ammunition. Examination of the handguns and ammunition captured inside West Anaheim showed that one .38-caliber handgun contained spent casings while the other was fully loaded. The pouch Trinh had been carrying contained more than 100 additional rounds of .38-caliber ammunition.
2. Defense Evidence
The defense conceded Trinh had shot and killed Mustaffa, Rosetti, and Robertson, and had attempted to shoot Salvador, but presented evidence regarding stressors in Trinh's life that it argued mitigated Trinh's culpability to less than first degree murder.
Trinh and his mother Mot emigrated from Vietnam in 1975, when Trinh was roughly 18. As of 1999, Trinh and his mother had lived together in an apartment in Anaheim for a long time.
In late May 1999, Mot, then 72, collapsed and lost consciousness while Trinh was taking her to the bathroom. She was transported to West Anaheim and stayed there approximately one month. During that time, she underwent
hip replacement surgery and on several occasions spent time in intensive care after becoming nonresponsive. Trinh was frequently with Mot at the hospital and fed her, assisted in her care, and acted as her interpreter with staff.
Thereafter, Mot was transferred to La Palma Intercommunity Hospital (La Palma) for an additional month of care and rehabilitation. Trinh was again with her on a daily basis, translating for her and learning how to assist her with basic tasks. In August, following Mot's discharge, Trinh quit his job to care for her full time. Weeks later, he declared bankruptcy.
[326 P.3d 947] Around 5:40 a.m. on the morning of September 14, Trinh called 911 and reported that Mot had stopped breathing and had blood coming from her mouth. Trinh received instructions on CPR and paramedics arrived shortly to find him attempting to revive his mother. The paramedics told Trinh his mother's condition was very serious and gave him an address and directions to Martin Luther Hospital, where they were transporting her by ambulance. The directions were correct but the address was wrong; when Trinh arrived at 8:00 a.m., Mot had already died of cardiac arrest. Trinh became very distraught. Asked if anyone needed to be called, Trinh replied that everyone was still in Vietnam.
The defense presented extensive expert testimony concerning Vietnamese family structure, Vietnamese distrust of Western medicine, the need for medically and culturally knowledgeable interpreters to explain procedures, the nature of caregiver burnout, depression among Vietnamese immigrating to the United States in the 1970's, and the grieving process.
3. Charges and Guilt Phase Verdict
Trinh was charged with three counts of first degree murder with special circumstances (multiple murder and lying in wait) and one count of attempted murder. (§ § 187, 189, 190.2, subd. (a)(3), (15), 664, subd. (a).) He was additionally charged with firearm use enhancements for each count. (§ § 12022.5, subd. (a), 12022.53, subds. (c), (d).) Before trial, the court dismissed the lying-in-wait special circumstance on the prosecution's motion.
A jury convicted Trinh on all first degree and attempted murder counts and found the multiple-murder special circumstance true. It also found the firearm use enhancements true.
[173 Cal.Rptr.3d 11] B. Penalty Phase Trials
Trinh's first jury was unable to reach a verdict on penalty, hanging 10 to two in favor of life. A second jury hung as well, 11 to one in favor of death.
1. Prosecution Evidence at the Third Penalty Trial
In the third penalty trial, the People relied on the circumstances of the crime and victim impact evidence.
Because the jury had not heard the guilt phase evidence, the prosecution presented anew testimony concerning the shootings. It supplemented that evidence by reading back Trinh's testimony from the second penalty phase trial. In that testimony, Trinh testified that he entered the hospital with a clear mind and a plan, executed three people, felt no remorse, would not apologize, and accepted the consequences. The people he killed, he killed because they looked familiar or got in his way. He originally made his plans when he checked his mother out of La Palma in July, but did not act then because he needed to continue to care for her. Once paramedics took his mother away on the morning of September 14, he knew she would die, so he retrieved his ammunition, loaded his guns, and drove to Martin Luther Hospital and then to West Anaheim. Had he not been stopped at West Anaheim, he would have driven on to La Palma and killed people there, then committed suicide. He wished to be sentenced to death because he had no reason left to live and wanted to join his mother in the next life.
The prosecution also introduced victim impact evidence from Mustaffa's husband, Rosetti's mother, siblings, and daughters, Robertson's wife and son, and Mila Salvador herself.
2. Defense Evidence at the Third Penalty Trial
The defense re-presented its guilt phase expert testimony concerning Vietnamese family structure, Vietnamese distrust of Western medicine, the need for medically and culturally knowledgeable interpreters to explain procedures, the nature of caregiver burnout, depression among Vietnamese immigrating to the United States in the 1970's, and the grieving process.
A witness who knew Trinh growing up testified that in Vietnam he had few friends and family aside from Mot. Trinh and Mot [326 P.3d 948] were placed in a refugee camp in Guam in 1975 and immigrated to the United States from there. Witnesses testified that after immigrating, Trinh had few if any friends and no family in the United States, spent all his spare time with his mother, and never married because his entire focus was on taking care of her. Trinh was described as a reliable tenant and as an excellent employee at the various restaurants where he worked.
Trinh testified on his own behalf, as he had at each of the penalty phase trials. In a statement to the jury, he declared he entered West Anaheim
intending to execute people, had no excuses, regrets or remorse, would do it again if he could, and accepted full responsibility. He tried to testify that American citizens had supported genocide in Vietnam and denounce the United States government and capitalism, though his statements were stricken; without objection, he explained he was doing his duty as a Vietnamese son, citizen and comrade by executing Americans. As Trinh was leaving the stand, he told the jury to " Do your job, thank you."
Counsel contrasted this testimony with taped interviews of Trinh on the day of the shootings and during the first penalty phase trial. In the taped interviews, Trinh explained that when Mot was hospitalized, [173 Cal.Rptr.3d 12] some nurses gave her poor care and laughed at her, so after Mot's release from La Palma, he formed a plan to kill those nurses at West Anaheim and La Palma. He waited to carry the plan out because he still needed to take care of Mot.
On September 14, Trinh loaded his guns and placed them and ammunition in his truck before driving to Martin Luther Hospital because he knew Mot was going to die. When he arrived at Martin Luther, he did not shoot anyone because he did not hold them responsible for his mother's condition. He stayed with his mother's body for about one hour. Upon leaving Martin Luther, he drove to West Anaheim; his mother had died, and those who had mistreated her would have to pay. Upon arriving, he walked into the hospital looking for staff he recognized who had mistreated or laughed at his mother. Seeing no one he recognized and not wanting to kill innocent people, he walked out and sat in his truck, then walked in a second time and, when he recognized Mustaffa and Salvador, shot at them. He retreated the way he had come, taking the stairs because he thought the elevators might be shut down. He shot Rosetti and Robertson only because they were preventing him from escaping; he wanted to leave and get to La Palma, carjacking someone if necessary because he believed his truck's description would be broadcast. As he was being subdued, Trinh said, referring to the second-floor staff, " Your guy[s] kill my mother."
Trinh expressed extreme regret for shooting Rosetti and Robertson and hoped they would survive. He asked for forgiveness if they died because he did not intend to kill them. Trinh did intend to kill Mustaffa, however, and expressed no regret at shooting at her or Salvador.
Trinh's first penalty phase testimony was also read. Trinh said nothing he could say would bring anyone back. He walked into West Anaheim with a plan, took three innocent lives, and accepted the consequences for his actions. Trinh closed his narrative: " To all of you folks, the famil[ies] who lost your loved one[s] because of me, I am willing to pay back everything I got, that is, my life. Life for life, eyes for eyes. I owe you my life because of their death.
And that is also my duty because I pay my debt to you. ... I accept the death penalty. And not because I say I am sorry to you, to those family who lost your loved ones because of me. And I know ... what I did hurt all your feeling[s]. And not only I insult you, but I hurt your family. And to me, I bow my head before all of you and apologize. And I am sorry for that." On cross-examination during the first penalty phase, Trinh explained that he shot at Mustaffa and Salvador because he thought he recognized them, but realized too late he had misidentified them and they had nothing to do with him. He walked out of West Anaheim the first time because he saw no familiar faces, but went in a second time because he had nothing left to go back to; he planned to kill himself afterward. He did not want to kill every nurse, only those he blamed for mistreating his mother. At the close of his first penalty phase testimony, [326 P.3d 949] Trinh addressed the jury, again apologized, and told them to do the right thing and sentence him to death, as he deserved.
3. Third Penalty Trial Verdict
After two hung juries, Trinh's third penalty phase jury returned a verdict of death.
A. Pretrial: Denial of Motion to Recuse the District Attorney's Office
The day after the Anaheim shootings, a man entered a church in Fort Worth, Texas, [173 Cal.Rptr.3d 13] and shot 14 people, killing seven of them, before committing suicide. These two incidents followed by less than five months the Columbine High School shootings, in which two students killed 13 people and injured roughly two dozen more before committing suicide. (See Cullen, Columbine (2009) pp. 4-5, 349-353, 372.) On September 16, 1999, two days after the Anaheim shootings and one day after the Fort Worth shootings, Orange County District Attorney Tony Rackauckas announced a new charging policy for public rampage killings. Where formerly the decision whether to charge special circumstances had been made after review by a district attorney's office committee, including potentially input from defense counsel regarding mitigating circumstances, Rackauckas announced public rampage killings would automatically be charged as special circumstance cases. Pursuant to this policy, Trinh was charged with special circumstances murder without a special circumstance committee convening.
Trinh moved to recuse the entire Orange County District Attorney's Office. (§ 1424.) Trinh argued that Rackauckas was personally invested in the case because his father had recently been hospitalized at, and had just a few days before been ...