Filed 3/7/16 P. v. Johnson CA4/3



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
                                                                       G047335
     Plaintiff and Respondent,                                         (Consol. with G047907, G048760 &
                                                                       G048909)
         v.
                                                                       (Super. Ct. No. 09ZF0050)
ANTHONY PAUL JOHNSON et al.,
                                                                       OPINION
     Defendants and Appellants.



                   Appeal from judgments of the Superior Court of Orange County, Patrick
H. Donahue, Judge. Affirmed in part, reversed in part, and remanded with instructions.
                   R. Clayton Seaman, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant Anthony Paul Johnson.
                   Michelle May Peterson, under appointment by the Court of Appeal, for
Defendant and Appellant Truc Ngoc Tran.
                   Sharon G. Wrubel, under appointment by the Court of Appeal, for
Defendant and Appellant Giang Thuy Nguyen.
                   Khouri Law Firm and Michael J. Khouri for Defendant and Appellant Tam
Hung Nguyen.
                  Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A.
Engler, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General,
Eric A. Swenson, Charles C. Ragland, Meagan J. Beale, Marvin E. Mizell, Michael Pulos
and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
                                        *                  *                 *
                  Appellants were convicted of conspiring to murder and murdering Viet
Nguyen.1 Although Viet was a member of appellants’ own gang, the prosecution
theorized they murdered him out of fear he might implicate them in a home invasion
robbery that went awry for the gang shortly before Viet was killed. In this consolidated
appeal, appellants challenge nearly every aspect of their trial, ranging from jury selection
to sentencing. While most of their claims are unmeritorious, it is undisputed appellants’
sentences are partially incorrect and need to be revisited. Therefore, we reverse their
sentences and remand for resentencing. In all other respects, we affirm.
                                                      FACTS
                                                Appellants’ Gang
                  At the time Viet was murdered in February 1995, he and appellants
Anthony Johnson, Truc Tran, Giang Nguyen and Tam Nguyen were members of a
criminal street gang known as Viets for Life (VFL). Ranging in age from 17 to 22 years
old, they lived in a tight-knit neighborhood in Westminster. VFL’s primary activities
included murder, conspiring and attempting to commit murder, home invasion robbery
and gun possession. While nearly everyone in the gang was Vietnamese, it was led by
Johnson, a Caucasian. He had a dominant, intimidating personality that commanded
respect, and as the head of VFL, other members of the gang were expected to do what he
said. Whereas Johnson was VFL’s “shot caller,” Viet was a relative newcomer to the
gang at the time this case arose.

         1
                   The surname Nguyen is common to several people involved in this case. To avoid confusion, we
will refer to them by their first names after they are initially introduced in the opinion. No disrespect is intended.


                                                           2
                          The Botched Home Invasion Robbery
              Sometime in 1994 or early 1995, Westminster High School student Dan
McDonald received about $20,000 in cash as part of an insurance settlement. The
settlement was no secret; McDonald spent the money freely and even photographed
himself rolling around in it on his bed. Viet was a good friend of McDonald, but after he
heard about the insurance settlement, he told Johnson about it, and they hatched a plan to
steal McDonald’s money.
              The plan was put in motion on February 24, 1995. Around eight o’clock
that morning, Johnson, Giang and Viet entered McDonald’s home wearing bandanas over
their faces. They were hoping the house would be empty, but as it turned out, both
McDonald and his mother Betty were home. Johnson confronted McDonald with a knife
or a gun and demanded his money, while Giang pointed a gun at Betty and Viet stood
near the front door. Although McDonald and Betty initially thought the encounter was
some sort of joke, they realized that was not the case after Johnson hit McDonald and tied
him up.
              During the robbery, Johnson told everyone what to do and where to go.
But Viet got cold feet when, despite his bandana, Betty recognized him as a friend of the
family. Although McDonald never saw Viet, Betty was sure he was the guy who was
standing by the front door. Realizing he had been recognized, Viet got scared and ran out
of the house in the middle of the robbery, leaving his companions in the lurch. Johnson
and Giang rummaged through the house for another minute or so, taking $80 from
Betty’s purse, but they were unable to locate McDonald’s settlement money before
fleeing the scene.
                               The Party at Ingrid’s House
              That evening, appellants went to a party at the Midway City home of Tam’s
14-year-old girlfriend Ingrid S. Besides appellants and Ingrid, Viet and his best friend
Binh Nguyen were at the party, as were VFL associates Terry Tackett and Ngoc Nguyen,

                                             3
aka Chuckee. During the party, Viet called his friend Linh Vu and told him he had been
involved in a robbery early that day. Viet said he had “messed up” the robbery, and Vu
sensed he was worried about the situation. They only talked for a few minutes before
Viet told Vu he had to go and hung up on him. After that, Viet, Ngoc and Tam left the
party in Viet’s van. They departed Ingrid’s house around midnight and never returned to
the party.
                                    The Murder Scene
              About an hour later, Lucia Carter was driving on the connector to the 405
and 73 freeways in Costa Mesa when she noticed Viet’s van on the side of the road. As
she passed the area, she saw an Asian man running from the back of the van to a white
four-door sedan that was waiting about 20 feet away.
              Later that morning, around 7:00 a.m., CHP Officer Scott Wayne was
dispatched to that area of the roadway and made a grisly discovery. Upon looking inside
Viet’s van, he found Viet’s lifeless body slumped over the steering wheel with two bullet
holes in the back of his head. Investigators determined Viet had been shot from behind at
close range. Based on blood splatter marks inside the van, they also determined the front
passenger door had to have been open during the second shot. A loaded .45 caliber
handgun was found on an embankment near the van, but no fingerprints were found on
the weapon.
                                   Post-Murder Events
               While Officer Wayne was discovering Viet’s body, Ngoc was calling
Binh and telling him to meet him at Tackett’s house for some important news. When
Binh arrived there, Tackett, Ngoc and all four appellants were present, but Johnson did
most of the talking. He said Viet had been shot and killed while he was trying to rip off a
Mexican drug dealer. He also directed Binh and Ngoc to come up with an alibi as to
where they were at the time Viet was killed. Later that day, when the police contacted
Binh, he told them that he and Ngoc had spent the previous night at the movies.

                                             4
              Tam’s girlfriend Ingrid testified that in the wake of Viet’s death, Tam made
a comment to her about having had to “take someone out.” When Ingrid asked Tam what
he was talking about, he said he was just joking and changed the subject, but Ingrid
sensed he was hiding something.
              Eventually, Ingrid and Tam moved to Texas, as did Johnson and Tran. The
case went cold for over a decade until the police contacted Ngoc in Iowa in 2008. In
exchange for immunity from prosecution, Ngoc told authorities how Viet was murdered
and agreed to testify against appellants at their trial.
                                      Ngoc’s Testimony
              Ngoc testified it was actually Giang’s idea to steal Dan McDonald’s
money. However, Johnson is the one who came up with all the details about how they
were going to pull off the robbery. The original plan called for Viet to be the getaway
driver, but Ngoc eventually agreed to take on that role. Ngoc drove Viet, Johnson and
Giang to the scene in his white two-door Acura, and then waited outside in his car while
they went into McDonald’s house.
              After awhile, Ngoc began to get nervous and started driving up and down
the street near McDonald’s house. Then he saw Viet running toward his car and stopped
to let him in. Viet was very distraught because, contrary to what he had expected,
McDonald and his mother Betty were home when they entered the house. Viet told
Ngoc, “This is all fucked up” and began fretting about the fact Betty had recognized him.
About five minutes later, Johnson and Giang came running up to Ngoc’s car. Johnson,
who was holding a knife, yelled at Viet, “Where the fuck were you? Why did you [take]
off?” Viet told Johnson that Betty had recognized him, but Johnson was still very upset
with him, as was Giang. They were not only angry Viet fled in the middle of the robbery
but also upset that they only got $80 out of it. Although the group managed to get away
before the police arrived at McDonald’s home, they were distraught about the way things
had turned out.

                                                5
                 That evening, Johnson called Ngoc and invited him over to Ingrid’s house
to hang out and party. Ngoc was not in the mood to socialize, but urged on by the shot-
caller, he drove to Ingrid’s place in his Acura. Appellants, Viet, Binh and Tackett were
already there when he arrived. Johnson talked to Ngoc about how Viet had “panick[ed]”
and “tripped out” during the robbery. He worried aloud that Viet was “going to talk to
the police.”2 Giang was worried, too. He told Ngoc he never would have gotten him
involved in the robbery had he known how bad it was going to turn out. When Ngoc saw
Viet at the party, Viet was visibly upset. Although Ngoc tried to calm him down, Viet
could not stop worrying about the fact Betty McDonald had recognized him during the
robbery.
                 Around midnight, Johnson approached Ngoc and Viet and asked them if
they would go and pick up some drugs for him. After they agreed, Johnson told them to
take Tam along because he knew where to go. As they were getting ready to leave the
party, Giang obtained Ngoc’s car keys from him. Then, Viet, Ngoc and Tam set out in
Viet’s van to get the drugs; Viet drove, Ngoc sat in the front passenger seat, and Tam was
in the back.
                 Along the way, Tam gave Viet directions. But they never connected with
any drug dealers. While they were driving on the freeway, Tam told Viet to pull over,
claiming he was not feeling well. After Viet complied, Tam pulled out a gun and shot
him twice in the back of the head. Ngoc, who had been dozing off during the drive, was
shocked by the shooting. At Tam’s direction, he ran to a light green Honda sedan that
had pulled up behind Viet’s van. Ngoc recognized the car as belonging to Giang’s
girlfriend Tammy Phan, but she was not driving the car, Tran was. Tam had Ngoc get in
the car, and Tran drove them away.


        2
                   Johnson had good reason to worry about this. In 1992, after he and Viet got pulled over for
driving a stolen van, the police found a sawed-off shotgun in the vehicle. Johnson claimed he knew nothing about
the gun, but when the police questioned Viet, he said he had recently seen Johnson with the weapon.


                                                        6
                  The trio headed to a bowling alley, where Tran made a phone call. Then
they went to a hotel in Anaheim and met Giang and Johnson, who were driving Ngoc’s
car. After Johnson checked into the motel, he asked Tam and Tran, “Is it all done?”
Tran nodded and said, “yeah.” Then all five of them went into a room at the motel.3
                  Inside the room, Johnson implored everyone to keep quiet about the
shooting and to start thinking about alibis for where they were that night. To that end,
Johnson told Ngoc to get in touch with Binh, so they could work out a story together.
Ngoc was scared, but throughout the evening Johnson remained calm as he plotted the
group’s next move. At sunup, Ngoc said he had to go, and Johnson told him to remember
what he had said earlier. Even though Ngoc was not in on the plan to kill Viet, Johnson
told him it was important for him to keep quiet because he was involved in what
happened.
                  Ngoc went home, threw his clothes in the trash and took a shower. Then he
met up with appellants near Tackett’s house. There, Johnson told everyone that if people
started asking questions about Viet, they should say he was killed in a drug deal. And
when Binh arrived at Tackett’s house later that morning that is precisely what Johnson
told him. At that time, Ngoc and Binh also came up with their alibi. True to their plan,
when the police interviewed Ngoc later that day he claimed that he and Binh were at the
movies when Viet was murdered.
                  A few days later, Ngoc met up with appellants at a park in Fountain Valley.
At the meeting, Johnson showed everyone a newspaper article about Viet’s murder.
Chuckling as he read the piece, Johnson remarked, “[S]ee, they don’t have a lot of news.
They got very few clues.” Johnson also suggested they should all move to Texas until




         3
                   The room was registered to Linh Vu, who, as mentioned above, had spoken to Viet by phone
earlier that evening at Ingrid’s party. At trial, Vu denied renting the room, but he admitted his brothers had close
ties to Johnson and VFL.


                                                           7
everything blew over. He promised everything would be okay if they all just stuck
together.
                  As it turned out, the group did not stick together, but they did keep quiet for
many years. In fact, the one time Ngoc visited Johnson in Texas, they did not even
discuss the botched home invasion robbery or Viet’s death. And by the time the police
contacted Ngoc in Iowa in 2008, he had lost touch with Johnson altogether. Married with
children then, Ngoc had put the entire ordeal behind him and did not want to get involved
in the case. However, after the police intimated they might charge him as an accomplice
to murder, he confessed to what happened.4
                                  Appellants’ Statements to the Police
                  When the police initially interviewed Johnson about the case in March
1995, he denied any wrongdoing. However, when they interviewed him again in 2006,
he admitted pulling off the McDonald robbery with Viet and Ngoc and meeting up with
them later that night at Ingrid’s house. Johnson also admitted owning a .45 caliber
revolver and having a reputation as VFL’s kingpin back when Viet was murdered. Asked
if he knew anyone who might have information as to how Viet was killed, Johnson said
Ngoc would because “‘he was sitting there in the car with [Viet]’” when Viet was shot.5
                  In October 2008, a team of police officers seeking information about the
murder went to Tam’s home in Minnesota. The officers knocked on Tam’s doors and
loudly announced their presence for about 15 minutes before Tam finally answered the
door. When he did, the officers told him they wanted to talk to him about Viet’s murder.



         4
                   Binh also testified to events surrounding the shooting. Like Ngoc, Binh said that he, Viet and
appellants partied at Ingrid’s house the night before the shooting. At the party, there was talk about the botched
home invasion robbery, and at some point Viet and Ngoc left to do a drug run. Appellants also left the party around
that time. The next morning, Binh met up with Ngoc and appellants at Tackett’s house, where Johnson announced
Viet had been murdered in a drug deal. It was at this time that Binh and Ngoc concocted their alibi about being at
the movies the previous evening.
         5
                   The trial court instructed the jury Johnson’s statements to the police were only admissible as to
him and could not be used against his codefendants.


                                                         8
Tam said he did not know what they were talking about and claimed he did not even
know who Viet was.
              When Giang was interviewed by the police, he said his girlfriend Tammy
Phan owned a blue or teal green Honda Accord. He also admitted driving Phan’s car to
Ingrid’s party on the night Viet was killed.
                                      Gang Expert’s Testimony
              Mark Nye, a retired sergeant with the Westminster Police Department,
testified as a gang expert for the prosecution. During his 25 years on the force, Nye
worked as a liaison between the police and the Vietnamese community and investigated
numerous crimes involving VFL members. While Nye knew appellants were all
involved in criminal gang activity in the years leading up to Viet’s death, he believed
Johnson was the leader of VFL and directed the gang’s activities.
              Based on a hypothetical steeped in the facts of this case, Nye opined that if
a gang member panicked and abandoned his fellow gang members during a crime, as
Viet allegedly had done during the home invasion robbery, he would lose his gang’s trust
and respect and be “in a very serious predicament.” And if the gang’s leader decided to
have him murdered, it would benefit the gang by removing “a weak link” from the gang
and eliminating the possibility of him “ratting” to the police.
                                      The Verdict & Sentencing
              Appellants were convicted of first degree murder and conspiracy to commit
murder. (Pen. Code, §§ 187, 182.)6 In addition, the jury found true special
circumstances allegations the murder was committed to avoid arrest and while lying in
wait. (§ 190.2, subds. (a)(5), (15).) The jury also found appellants acted for the benefit
of their gang and Tam personally used a firearm. (§§ 186.22, subd. (b), 12022.5, subd.
(a)). In addition, Johnson was found to have suffered two prior strike convictions, and


       6
              Unless noted otherwise, all further statutory references are to the Penal Code.


                                                      9
Giang was found to have previously suffered a strike and a serious felony conviction and
to have been on bail when the murder occurred. (§§ 667, subds. (a), (d), (e)(2)(A),
1170.12, subds. (b), (c)(2)(A), 12022.1, subd. (b).) The court sentenced appellants to,
inter alia, life in prison without the possibility of parole (LWOP) for the murder, 25 years
to life for the conspiracy and 10 years for the gang enhancement.
                                                    DISCUSSION
                                                    Jury Selection
                   Giang claims the prosecutor violated his constitutional rights by using his
peremptory challenges to exclude Hispanic women from the jury. The claim fails for
lack of evidentiary support.7
                   During voir dire, the first two groups of prospective jurors called for
questioning included Patricia Romano and Evelisse DeJesus. The questioning revealed
Romano has a nephew who has been involved with a gang “back east,” and DeJesus’
brothers have been convicted of gang-related crimes. While Romano said she has not
spoken to her nephew in years and knows little about his gang activities, DeJesus said she
has visited her brothers in jail from time to time. Both women said they could be fair and
impartial if they were on the jury. However, the prosecutor used his first and third
peremptory challenges to excuse them from the panel.
                   After several more prospective jurors were called and questioned, the
prosecutor accepted the jury, which included a man named Gustavo Garcia, as
constituted. However, defense counsel exercised several peremptory challenges, so the



         7
                    Tran and Johnson join this claim. Even though Giang’s lawyer was the only defense attorney to
raise this claim in the trial court, joinder is proper because prior to jury selection the attorneys stipulated that, unless
stated otherwise, any motion or objection made by one of them should be deemed to have been made by all of them.
Besides being a passport for joinder of claims on appeal, this stipulation also obviates the need for us to consider the
Attorney General’s various forfeiture arguments because nearly all of the issues raised in this appeal were preserved
by a proper motion or objection by at least one of the defense attorneys. And those issues that were not preserved
are the subject of ineffective assistance of counsel claims. We will therefore consider all of appellants’ claims on
their merits.


                                                            10
court called another group of prospective jurors that included Vanessa Ocampo, Cynthia
Carrasco and Cynthia Cardona.
              The prosecutor asked Ocampo if she would be able to vote guilty if the
charges were proven beyond a reasonable doubt. After she answered in the affirmative,
the prosecutor told her, “I’m picking on you because you may be a little bit younger than
some of the other jurors.” He then asked Ocampo if she would ever change her position
during deliberations just to “go along with everybody else.” Ocampo answered, “I don’t
think I would, no. . . . I don’t feel like anyone sways my decision on anything. I feel like
if I feel a certain way, I’m going to believe it.”
              At that point, the prosecutor reminded Ocampo jurors are not supposed to
be too rigid. He asked her what she would do if the other jurors were trying to change
her mind about the case. She said she “would go through [her] notes, . . . and kind of
double-question everyone else’s response or reasoning, but ultimately [she] would
believe what [she] believe[s].” Continuing this line of inquiry, the prosecutor told
Ocampo, “You’ll excuse me for being both a sexist and an ageist. [But] do you think you
would have any trouble expressing your opinions about the case during the deliberations
to an older – let’s say an older male juror, just hypothetically speaking?” Ocampo
replied, “No, I wouldn’t.”
              When the questioning got around to Carrasco, she said she has a cousin
who works for the Los Angeles Sheriff’s Department, and she herself has done clerical
work for a police department in the past. She also said her brother was arrested as a
teenager “years ago,” and she has had two cars stolen, but she has never had any
problems with gangs.
              As for Cardona, she revealed she has been convicted of a misdemeanor
drug offense, and her husband has been convicted of a gang crime for which he served 25
years in prison. She admitted those experiences might affect her ability to fairly judge
the case.

                                               11
              During the next round of challenges, the prosecutor used his fifth
peremptory challenge against Ocampo. That prompted Giang’s attorney to request a
sidebar, and the court met with counsel in chambers. Based on his belief that Romano,
DeJesus and Ocampo were Hispanic, Giang’s attorney claimed the prosecutor was
targeting Hispanic women for exclusion in violation of People v. Wheeler (1978) 22
Cal.3d 258 (Wheeler). The court was skeptical as to whether Ocampo was actually
Hispanic. In any event, it did not think there had been a prima facie showing of
purposeful discrimination, so it denied Giang’s Wheeler motion.
              When voir dire resumed, the defense challenged one of the prospective
jurors and Carrasco was seated in the jury box. The prosecutor accepted the jury as
constituted, but the defense challenged the aforementioned Gustavo Garcia, and he was
excused. After Cardona took his spot, the prosecutor used his sixth peremptory challenge
against her. Then the defense excused Carrasco and seven new prospective jurors were
called and questioned.
              After the lunch break, the court briefly revisited Giang’s Wheeler motion.
While still harboring doubts as to whether Ocampo was actually Hispanic, the court
acknowledged her name sounded Hispanic. The court also noted the prosecutor had
passed a number of times when Hispanics were sitting in the jury box. Assessing the
totality of the circumstances, the court simply did not believe a prima facie case of
discrimination had been shown. For the record, Giang’s attorney stated he did not object
to Cardona’s removal because she had suffered a drug conviction and her husband had
done serious time in prison for gang-related crimes.
              Eventually, the parties agreed on a jury that included one Hispanic woman,
identified in the record only as Juror No. 11. However, about a week into the trial, she
developed medical complications from her pregnancy, and her doctor placed her on bed
rest. In meeting with counsel to discuss this development, the court raised the specter of
having to replace Juror No. 11 for health reasons. Giang’s attorney objected to her

                                             12
removal, arguing it “would just emphasize the lack of Hispanic women [on] this jury and
reinforce my [prior] Wheeler motion . . . .”
              Responding to the renewed emphasis on his peremptory challenges, the
prosecutor said, “I don’t have the ability to any longer go back and explain to the court
what my reasons were for excusing various jurors. I can assure the court that there are
good nonrace reasons that I used all of my peremptory challenges.” At that point,
Giang’s attorney clarified that, while he was concerned about the lack of Hispanic
women on the jury, he was not making a new Wheeler motion. With that understanding
in mind, the judge interrupted the hearing to have his clerk contact Juror No. 11 to see if
she would be able to return to court after her bed rest. Juror No. 11 told the clerk she did
not know if that was going to be feasible. Therefore, the court found good cause for her
removal. That triggered a mistrial motion by Giang’s attorney, but the court denied the
motion and replaced Juror No. 11 with an alternate juror who served for the remainder of
the trial.
              The law is well established: “Both the state and federal Constitutions
prohibit the use of peremptory strikes to remove prospective jurors on the basis of group
bias. (Batson [v. Kentucky (1986) 476 U.S. 79, 89 (Batson)]; Wheeler, supra, 22 Cal.3d
at pp. 276-277.) The now familiar Batson/Wheeler inquiry consists of three distinct
steps. First, the opponent of the strike must make out a prima face case by showing that
the totality of the relevant facts gives rise to an inference of discriminatory purpose in the
exercise of peremptory challenges. Second, if the prima facie case has been made, the
burden shifts to the proponent of the strike to explain adequately the basis for excusing
the juror by offering permissible, nondiscriminatory justifications. Third, if the party has
offered a nondiscriminatory reason, the trial court must decide whether the opponent of
the strike has proved the ultimate question of purposeful discrimination. [Citation.]”
(People v. Scott (2015) 61 Cal.4th 363, 383.)



                                               13
                  This case involves step one only. When, as here, the “trial court denies a
Wheeler motion without finding a prima facie case of group bias the reviewing court
considers the entire record of voir dire. [Citations.] As with other findings of fact, we
examine the record for evidence to support the trial court’s ruling.” (People v. Howard
(1992) 1 Cal.4th 1132, 1155.) In so doing, we must keep in mind peremptory challenges
are presumed to be exercised for a nondiscriminatory purpose. (People v. Salcido (2008)
44 Cal.4th 93, 136-137.) And because Wheeler motions call upon trial judges’ personal
observations, their rulings are entitled to considerable deference on appeal. (People v.
Howard, supra, 1 Cal.4th at p. 1155.) We will uphold their rulings so long as there is any
substantial evidence to support them. (People v. Jones (2013) 57 Cal.4th 899, 917;
People v. Bonilla (2007) 41 Cal.4th 313, 341.)8
                  Courts have identified a variety of factors and types of evidence as bearing
on the question of whether there has been a prima facie showing of group bias in the jury
selection process. For example, various forms of statistical evidence may be used to
determine whether the prosecutor used a disproportionate number of peremptory
challenges against members of a protected group.9 (People v. Scott, supra, 61 Cal.4th at
p. 384.) A reviewing court may also consider whether the prosecutor engaged those
members in desultory questioning, whether the defendant is a member of the protected
group, and whether the victim was a member of the group to which the majority of the
jurors belong. (Ibid.) In addition, we may consider any “nondiscriminatory reasons for a

         8
                   Giang urges us to independently review the trial court’s ruling rather than apply the substantial
evidence test. However, independent review is required only when 1) the trial court did not expressly articulate
what standard it applied in denying the defendant’s Wheeler motion, and 2) the motion was heard before Johnson v.
California (2005) 545 U.S. 162 was decided, when a defendant challenging a peremptory excusal had to meet a
more rigorous standard to establish a prima facie case of discrimination. (See, e.g., People v. Scott, supra, 61
Cal.4th at p. 384.) The first prerequisite for applying independent review is met here, but because appellants’ trial
occurred seven years after Johnson was decided, we presume the trial court applied the correct standard in deciding
Giang’s Wheeler motion. (People v. Neuman (2009) 176 Cal.App.4th 571, 579, fn. 10; People v. Adanandus (2007)
157 Cal.App.4th 496, 503.) Therefore, we will review that ruling under the deferential substantial evidence test.
(Ibid.)
         9
                   For purposes of the Batson/Wheeler inquiry, our Supreme Court has presumed women with
Hispanic surnames are a protected group. (People v. Bonilla, supra, 41 Cal.4th at p. 344, fn. 14; People v. Garceau
(1993) 6 Cal.4th 140, 171.)


                                                         14
peremptory challenge that are apparent from and ‘clearly established’ in the record
[citations] and that necessarily dispel any inference of bias. [Citations.]” (Ibid.) “If the
record ‘suggests grounds upon which the prosecutor might reasonably have challenged’
the [prospective] jurors in question, we affirm. [Citation.]” (People v. Howard, supra,
1 Cal.4th at p. 1155; accord, People v. Pearson (2013) 56 Cal.4th 393, 421; People v.
Panah (2005) 35 Cal.4th 395, 439; People v. Young (2005) 34 Cal.4th 1149, 1172-1173.)
                 Here, the record shows that by the time Giang made his Wheeler motion,
the prosecutor had used three of his first five peremptory challenges against women with
Hispanic sounding surnames, i.e., Romano, DeJesus and Ocampo. The record also shows
these were the first three Hispanic women called for questioning, and the prosecutor
excused them as soon as he could, without waiting to see how they compared to other
prospective jurors. However, as Giang admits, DeJesus was an “obvious” and
permissible challenge due to the fact her brothers are convicted gang members. (People
v. Jones, supra, 57 Cal.4th at p. 920; People v. Watson (2008) 43 Cal.4th 652, 674.)10
                 Moreover, Giang is not a member of the group that was allegedly targeted,
nor does it appear that Viet was a member of the group to which the majority of the jurors
belong. Giang argues these factors are not very important because “although [he] is not
Hispanic, his trial attorney Joseph Gutierrez is, which is true of at least one of the other
three defense attorneys. This is relevant because a prosecutor might hold the biased view
that Hispanic jurors will favor a defendant whose counsel is Hispanic and might believe,
in particular, that female Hispanics might be swayed by male Hispanic attorneys and
defer to them, especially where, as here, the prosecutor admits he is sexist.”
                 This argument is not persuasive. The prosecutor did apologize to
prospective juror Ocampo for being “sexist” and “ageist” toward her. But it is clear from


        10
                   The Attorney General claims Romano was also an obvious challenge because, like DeJesus, she
said she had a relative who was involved in gangs. However, unlike DeJesus, Romano was not very close to her
wayward relative, and she did not believe he had ever been convicted of a crime.


                                                       15
his questioning he was simply trying to soften the impact of questions designed to
ascertain whether Ocampo had sufficient maturity and life experience to stand up for
herself during deliberations, which is a legitimate concern with respect to all prospective
jurors. (See People v. Arias (1996) 13 Cal.4th 92, 138-139; People v. Sims (1993) 5
Cal.4th 405, 430; People v. Perez (1994) 29 Cal.App.4th 1313, 1328.) While the
prosecutor did not subject every young prospective juror to the type of questions he posed
to Ocampo, the final jury was bereft of young people like Ocampo who had never been
married or had children. This suggests the prosecutor’s decision to challenge Ocampo
was motivated by age, not race or gender. At the very least, the prosecutor’s extensive
questioning of Ocampo, as well as Romano, indicates his voir dire of the prospective
jurors at issue was not token or desultory.11
                 Giang fears the trial court may have failed to consider Ocampo’s removal
in deciding whether the prosecutor’s peremptory challenges were racially motivated
because the court expressed skepticism about whether she is actually Hispanic. However,
after putting aside its concerns in this regard, the court still did not think there had been a
prima facie showing of discrimination. The court’s comments regarding Ocampo’s race
are therefore not grounds for reversal.
                 Nor is the fact the trial court considered the prosecutor’s willingness to
accept the jury while Gustavo Garcia was seated in the jury box. While Garcia did not fit
the exact description of the identified group – Hispanic females – race was a central
component of Giang’s motion. Therefore, it is relevant that the prosecutor was willing to
keep Garcia on the jury. (People v. Bell (2007) 40 Cal.4th 582, 599 [in rejecting claim
the prosecutor improperly targeted black women during voir dire, the court found it
significant he kept three black men on the jury].)



        11
                  The prosecutor did not ask any questions of DeJesus, but that is understandable given that defense
counsels’ questioning of her revealed clear grounds for her excusal.


                                                        16
                 It is also telling of course that the prosecutor passed while Carrasco was
seated in the jury box and that Juror No. 11 actually served on the jury before she was
removed for health reasons.12 While not dispositive on the issue of motive, the
prosecutor’s willingness to accept the jury while there was Hispanic women on it is a
strong indication he did not intentionally target members of that group for removal.
(People v. Cunningham (2015) 61 Cal.4th 609, 664; People v. Williams (2013) 56 Cal.4th
630, 663.)
                 In sum, there is substantial evidence to support the trial court’s finding the
prosecutor exercised his peremptory challenges in a constitutionally permissible fashion.
We discern nothing in the record that would allows us to reject the trial court’s evaluation
of the situation and draw an inference of discriminatory intent in the jury selection
process. Therefore, we uphold the trial court’s decision to deny Giang’s Wheeler
motion.13
                                 Alleged Fourth Amendment Violation
                 Tam contends the trial court should have suppressed the statements he
made to the police in 2008 because they were obtained in violation of his Fourth
Amendment rights. We disagree.
                 During an Evidence Code section 402 hearing, Costa Mesa Police
Detective Michael Delgadillo testified to the circumstances surrounding Tam’s
statements. He said that on October 17, 2008, he and his sergeant Frank Rudisill went to
Tam’s home in Minnesota, along with a local police officer named Barry Pankinin.
When they first arrived at Tam’s house – a large, single-family dwelling – no one was
home. But when they returned later in the day, there was a vehicle in front of the house.
Because the engine compartment of the vehicle was warm, the officers approached Tam’s
        12
                 On appeal, Giang does not challenge the removal of Juror No. 11 or the denial of his mistrial
motion that was prompted by her removal. Nor does he challenge the removal of prospective juror Cardona given
her husband’s extensive negative experience with the criminal justice system and her own lesser experience.
        13
                 While our holding is couched in terms of the substantial evidence standard, we would reach the
same conclusion applying de novo review to the proceedings below.


                                                       17
residence and began knocking on the front door. They were not in uniform, and their
guns were not in sight. They banged on the door and loudly announced their presence for
about 10 minutes, but no one answered. Then, while Delgadillo stayed at the front door,
the other two officers went around to the side and back doors and began doing the same
thing there. During this time, Delgadillo continued knocking and looked through the
windows of the house, but he did not see or hear anyone.
              Eventually, about 15 minutes after the officers arrived, Tam came to the
front door. The officers identified themselves and said they wanted to ask him some
questions about Viet’s murder. Tam replied, “I don’t know what you’re talking about. I
don’t even know who you’re talking about.” For privacy purposes, Tam also asked if
they could move the encounter into the backyard, and the officers obliged the request.
              In the backyard, the officers patted down Tam and reiterated they where
there to investigate Viet’s murder. They told Tam that since they never had the chance to
interview him at the time Viet was killed back in 1995, they wanted to hear his side of the
story. When Tam continued to deny knowing Viet or anything about his murder, they
told him Johnson had implicated him in the murder and offered to play a video of
Johnson doing so. However, Tam said he was not interested in watching the video and
requested an attorney, so the officers ceased their questioning. During the encounter, a
fourth officer arrived, but not until the very end. None of the officers displayed their
guns, gave Tam any orders or suggested he was under arrest. (In fact, Tam was not
arrested until several months later.) Delgadillo did ask Tam to submit to a buccal swab
for DNA testing purposes, but he refused to do so.
              Tam moved to suppress any evidence and/or statements stemming from the
encounter. At the motion hearing, Delgadillo testified he could not remember if Tam’s
backyard was surrounded by a fence. To clarify this issue, Tam’s attorney requested to
call Sergeant Rudisill and Tam’s then-girlfriend as witnesses at the hearing. He said he
intended to prove the police violated Tam’s Fourth Amendment rights by either opening

                                             18
a gate or scaling a six-foot fence to get into Tam’s backyard. The judge denied the
request for further testimony. He also denied defense counsel’s request to introduce a
Google map of Tam’s house. However, the judge did eventually accept a photograph of
Tam’s residence, which indicates his backyard was surrounded by a fence.14
Nevertheless, the judge found no basis to exclude Tam’s statements.
                 In challenging this ruling, Tam admits the police had every right to knock
on his front door. However, he contends the police violated his right to privacy by
entering his backyard without his permission or a warrant. He submits, “It was not until
[the] officers surrounded his home and stared through his . . . windows that [he] came to
his door[, and by then], an illegal search had already occurred[.]” Therefore, his
statement about not knowing Viet or anything about his murder should have been
suppressed as a fruit of the illegal search.
                 Recognizing a home’s curtilage – the area immediately surrounding the
home – is protected by the Fourth Amendment (Oliver v. United States (1984) 466 U.S.
170, 180), the Attorney General concedes the police violated Tam’s right to privacy by
going into his backyard without a warrant and in the absence of exigent circumstances.
The state also admits the officers in the backyard acted unlawfully to the extent they may
have looked through the windows of Tam’s residence. (People v. Camacho (2000) 23
Cal.4th 824 [officer’s actions in looking into the defendant’s window from a side yard of
his home constituted an illegal search].) However, the state maintains there was not a
sufficient connection between these illegal actions and Tam’s decision to open his door
and speak with the officers to justify excluding his statements from the trial. We agree.
        14
                   At oral argument, counsel seemed surprised that we questioned whether this issue had been raised
in the briefing. In fact, it was commented on in a footnote in the opening brief, and – since we presumed the
property was fenced and there was no need for us to determine whether the trial court erred in denying Tam's request
to present further evidence on the point – its significance was not fully appreciated.
                   The fact that even experienced and talented counsel would broach that issue in a footnote
convinces us we should remind all that California Rules of Court, rules 8.204(a)(1)(B) and 8.360 require that each
point raised as an assignment of error must be discussed under a separate heading or subheading. Failure to so
designate them can result in a court refusing to consider the argument. (Sierra Club v. City of Orange (2008) 163
Cal.App.4th 523, 524.)


                                                        19
              “It is well settled that evidence to be suppressed because of a Fourth
Amendment violation must in some sense be the product of illegal government activity.
[Citation.] Indeed, the challenging party must demonstrate ‘an exploitative nexus’
between the challenged evidence and the primary illegality. [Citation.]” (People v.
Holloway (1985) 176 Cal.App.3d 150, 156; see also People v. Williams (1988) 45 Cal.3d
1268, 1299, overruled on other grounds in People v. Diaz (2015) 60 Cal.4th 1176
[evidence derived from unlawful police conduct is subject to exclusion at trial only if it is
“tainted” by, i.e., causally linked to, such conduct].) To do this, the defendant must show
the police would not have obtained the evidence in question had they not violated the
Fourth Amendment. (United States v. Jarvi (10th Cir. 2008) 537 F.3d 1256, 1260.)
              Tam contends his statements to the officers were the “direct result” of the
officers’ unconstitutional actions of “knocking on the front door, the back door, the side
doors, and the windows of [his] house for approximately fifteen minutes non-stop.”
However, as he concedes, the officers had every right to knock on his front door. (People
v. Jenkins (2004) 119 Cal.App.4th 368, 374 [“there is nothing in our constitutional
jurisprudence that makes it illegal for police officers to knock on a person’s door unless
they first reasonably suspect the person has committed a crime”].) And the front door is
where Detective Delgadillo stayed and continued knocking until Tam eventually
answered the door. So the question is, did Tam carry his burden of proving his
statements were attributable to the illegal aspect of the officers’ actions, i.e., their
entering Tam’s backyard and knocking on his side and back doors?
              The case of United States v. Jarvi, supra, 537 F.3d 1256 sheds light on this
factually-sensitive question. There, the police lawfully stopped the defendant’s truck for
a traffic violation, but during the stop they illegally searched the truck and may have
unlawfully detained the defendant himself. During the stop, the police also spoke with
the defendant’s passenger, who made statements that led to a search of the defendant’s
residence that turned up guns, drugs and a large amount of cash. (Id. at p. 1257.) On

                                               20
appeal, the defendant argued the items found at his house should have been suppressed
because they were the fruit of illegal police activity that occurred during the course of the
traffic stop. However, the court rejected this argument on the basis the defendant failed
to prove his passenger’s statements were actually derived from an illegal aspect of the
stop. While acknowledging the statements could have been the product of a Fourth
Amendment violation, the court noted the opposite was also true. (Id. at p. 1260.) Under
those circumstances, it was up to the defendant to establish “that if the police had not
[illegally] searched his truck (or unlawfully detained him, if that violation were shown),
they would not have ended up questioning [his passenger] and learning about the drugs in
his house. [Citation.]” (Id. at p. 1261.) Because the defendant did not present any
evidence in that regard, the court determined he failed to carry his burden of proof, and
therefore his motion to suppress was properly denied. (Ibid.)
                  Likewise here, the record shows Tam’s statements were preceded by police
conduct that was both legal and illegal. As such, Tam had the burden of showing he
would not have answered his door and spoken to the officers had the illegal conduct not
occurred. Tam failed to meet that burden. While the record shows he did not answer his
door until Rudisill and Pankinin entered his backyard, there is no evidence he ever saw
them there or heard their knocking and yelling. (For all we know, Tam could have been
asleep, in the shower or listening to music through headphones at that time.) And when
Tam did come to the door, he did not go to one on which Rudisill or Pankinin had been
knocking. Instead, he went to the front door, where Delgadillo was lawfully positioned.15
On this record, it is unclear whether it was the illegal entry into Tam’s backyard that
prompted him to answer the door and speak with the officers, or he would have come to
the door even if Rudisill and Pankinin had stayed in front with Delgadillo. Because Tam
         15
                   Tam contends Delgadillo overstayed his visit by knocking on his door for 15 minutes, which he
describes as “almost comically lengthy period of time.” However, “[i]t is the nature, not the duration of the
intrusion” that dictates whether an illegal search has occurred. (People v. Camacho, supra, 23 Cal.4th at p. 834.)
Because Delgadillo had every right to knock on Tam’s front door, the fact that he did so for approximately 15
minutes is of no legal consequence.


                                                         21
did not present any evidence on this pivotal question, he failed to prove his statements to
the officers were attributable to the illegal intrusion. Therefore, the trial court properly
denied his motion to suppress.
                                       Severance Issues
              Tam, Giang and Tran contend they were denied a fair trial because they
were tried with Johnson. Their argument is based largely on the fact they did not have
the opportunity to cross-examine Johnson about certain statements he made before trial.
However, because Johnson’s statements did not directly implicate his codefendants in the
alleged crimes, and because many of his statements were nontestimonial, their admission
did not necessitate separate trials.
              In cases involving multiple defendants, joint trials are generally preferred.
(People v. Lewis (2008) 43 Cal.4th 415, 452.) However, the trial court may “order
separate trials if, among other reasons, there is an incriminating confession by one
defendant that implicates a codefendant, or if the defendants will present conflicting
defenses. [Citations.] Additionally, severance may be called for when ‘there is a serious
risk that a joint trial would compromise a specific trial right of one of the defendants, or
prevent the jury from making a reliable judgment about guilt or innocence.’ [Citations.]”
(Ibid.)
              The exception respecting incriminating statements of a codefendant is
known as the Aranda/Bruton rule. (See People v. Aranda (1965) 63 Cal.2d 518 and
Bruton v. United States (1968) 391 U.S. 123.) The rule “declares that a nontestifying
codefendant’s extrajudicial self-incriminating statement that inculpates the other
defendant is generally unreliable and hence inadmissible as violative of that defendant’s
right of confrontation and cross-examination, even if a limiting instruction is given.”
(People v. Anderson (1987) 43 Cal.3d 1104, 1120.) However, the confrontation clause is
not violated by the admission of a nontestifying defendant’s statements if they are
redacted to eliminate any reference to his codefendants or their incriminating nature only

                                              22
becomes apparent when they are linked to other evidence in the case. (Richardson v.
Marsh (1987) 481 U.S. 200, 208-211; People v. Mitcham (1992) 1 Cal.4th 1027, 1046-
1047.) In other words, unless the statements in question are powerfully incriminating on
their face, no Sixth Amendment violation will be found. (Ibid.; United States v.Vega
Molina (1st Cir. 2005) 407 F.3d 511, 520; People v. Fletcher (1996) 13 Cal.4th 451, 455;
People v. Smith (2005) 135 Cal.App.4th 914, 921-922; People v. Archer (2000) 82
Cal.App.4th 1380, 1386-1387.)
              The parties and the court were well aware of the need for redaction in this
case. In response to appellants’ severance motion, the prosecutor took it upon himself to
redact Johnson’s 2006 statement to the police in order to omit any reference to his
codefendants. Johnson’s statement to the police in 1995 did include fleeting references to
Tam, Tran and Giang; to wit, Johnson described Tam and Tran as his friends and fellow
gang members, and he said he rode to the airport in the car of Giang’s girlfriend Tammy
Phan when he departed for Texas after the murder. However, these statements did not
directly implicate Tam, Tran or Giang in the charged offenses. Rather, their
“incriminatory effect depended entirely on [their] linkage to other evidence.” (People v.
Hajek and Vo (2014) 58 Cal.4th 1144, 1177.) Because of this, and because the
statements were admitted against Johnson only, they did not violate the Aranda/Bruton
rule. (Ibid.; Richardson v. Marsh, supra, 481 U.S. at pp. 207-208.)
              For largely the same reasons, the admission of Johnson’s police statements
did not run afoul of Crawford v. Washington (2004) 541 U.S. 36 (Crawford), which
prohibits the admission of testimonial hearsay statements without a prior opportunity for
cross-examination. Johnson’s statements to the police may have been testimonial, but
they were substantially redacted and their incriminatory effect only became apparent
when linked to other evidence in the case. Under these circumstances, the statements did
not implicate the confrontation rights of Johnson’s codefendants. (People v. Stevens
(2007) 41 Cal.4th 182, 199 [“The same redaction that ‘prevent[ed] Bruton error also . . .

                                            23
prevent[ed] Crawford error.’”]; United States v. Chen (2d Cir. 2004) 393 F.3d 139, 150.)
Thus, the statements were not grounds for separate trials.
              As for Johnson’s other statements, the record shows that when he was at
Ingrid’s house before the shooting, he told Ngoc he was worried about Viet telling the
police about the McDonald robbery. Johnson also told Ngoc and Viet to take Tam along
with them on the purported drug run. Later that night, after the shooting, Johnson urged
everyone to keep quiet about what happened and to come up with alibis. And when
appellants met up at a park a few days later, Johnson talked about fleeing the state and the
police having few clues about the murder. However, none of these statements were
powerfully incriminating on their face. They may have served to corroborate Ngoc’s
testimony, but only when connected to other evidence in the case.
              More importantly, because none of the statements were rendered in a
formal setting in anticipation of trial they were not testimonial for purposes of the Sixth
Amendment. (People v. Lopez (2013) 56 Cal.4th 1028, 1065-1066; People v. Valdez
(2013) 220 Cal.App.4th 16, 35-36; People v. Hill (2011) 191 Cal.App.4th 1104, 1135-
1136; People v. Garcia (2008) 168 Cal.App.4th 261, 287, 291.) Therefore, they did not
implicate the principles enunciated in Aranda/Bruton or Crawford. (Smith v. Chavez (9th
Cir. 2014) 565 Fed.Appx. 653; United States v. Dargan (4th Cir. 2013) 738 F.3d 643,
651; United States v. Figueroa-Cartagena (1st Cir. 2010) 612 F.3d 69, 85; People v.
Arceo (2011) 195 Cal.App.4th 556, 571.)
              In arguing separate trials were required, Tam and Giang also claim they
were tarred by the evidence depicting Johnson’s prior crimes and violent tendencies.
However, during the course of the trial, evidence was adduced showing all four
appellants had been involved in prior bad acts and gang activity, not just Johnson. And
the trial court instructed the jurors this evidence was admissible only for noncharacter
purposes, such as establishing motive or proving the existence of a conspiracy. The jury
was expressly prohibited from using the evidence to conclude appellants were of poor

                                             24
character or criminally inclined. The court and the parties also made it clear appellants’
culpability had to be assessed on an individual basis and their association with one
another was not a sufficient basis, in and of itself, to find them guilty.
              For all of these reasons, the trial court did not abuse its discretion in
denying appellants’ severance motion. The court’s decision did not render the trial
fundamentally unfair in violation of Aranda/Bruton, Crawford or due process generally.
(People v. Garcia, supra, 168 Cal.App.4th at pp. 281-282 [joint trial proper where
codefendant’s redacted confession only indirectly implicated defendant in charged
crimes].)
                         Failure to Bifurcate the Gang Allegations
              In a related argument, Tam insists the gang allegations should have been
tried in a bifurcated proceeding separate and apart from the trial on the substantive
charges. Again, we disagree.
              Trial courts have broad discretion in deciding whether to bifurcate gang
allegations from the charged offenses. (People v. Hernandez (2004) 33 Cal.4th 1040,
1048.) Typically, bifurcation is not required because, while the introduction of gang
evidence always carries the potential for prejudice, such evidence is often relevant to
“help to prove identity, motive, modus operandi, specific intent . . . or other issues
pertinent to guilt of the charged crime. [Citations.] To the extent the evidence
supporting the gang enhancement would be admissible at a trial of guilt, any inference of
prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]” (Id. at
pp. 1049-1050.)
              The gang evidence in this case included eight different episodes of criminal
conduct by VFL members, ranging from car theft and gun possession to residential
burglary and the botched home invasion robbery of McDonald and his mother. Tran does
not dispute this evidence was relevant to prove VFL engaged in a pattern of criminal
gang activity for purposes of the gang enhancement allegation. (See § 186.22, subd. (e).)

                                              25
However, working on the assumption the connection between Viet’s murder and VFL
“was dubious,” he contends the evidence was immaterial to the underlying charges and
tarnished his right to a fair trial.
                 We cannot agree. The gang evidence was not only probative in terms of
proving the gang allegations, it also shed considerable light on appellants’ motive for
murdering Viet. In fact, the prosecution theorized the botched home invasion robbery by
VFL was the raison d’être for Viet’s murder. According to the prosecution, VFL simply
could not afford to have a “weak link” such as Viet in their ranks if they were to remain
an effective criminal organization. Evidence of appellants’ gang ties also helped explain
why Tam would shoot Viet, even though Tam was not personally involved in the
robbery. And such evidence was relevant to the conspiracy charge and to explain why
some of the witnesses, including Ngoc and Binh, were reluctant to testify against
appellants. It was just not possible to get a full and complete understanding of the case
without explaining the underlying gang dynamics. Because the gang evidence was
inextricably intertwined with the charged offenses, the trial court did not abuse its
discretion in failing to bifurcate the gang enhancement allegations.
                                           Accomplice Issues16
                  The trial court gave the jury extensive instructions on the law respecting
accomplices. Among other things, it told the jurors the testimony of an accomplice
requires corroboration, and it defined an accomplice as anyone who “is” subject to
prosecution for the charged offenses as an aider or abettor or a coconspirator. Appellants
challenge this definition. Because Ngoc was given immunity for his testimony,
appellants contend Ngoc was not subject to prosecution at the time of trial, and therefore
the court should have defined an accomplice as a person who “was” subject to



        16
                 Although Ngoc and Binh were both identified as potential accomplices, appellants’ accomplice-
related arguments center around Ngoc, presumably because he was the star witness for the prosecution.


                                                      26
prosecution for the alleged crimes. We agree but find the error was harmless under the
circumstances presented in this case.
                The correct time frame for determining whether a witness is subject to
prosecution for the charged offenses, thus rendering him liable as an accomplice, is not at
the time of trial but at the time the charged offenses were committed. (People v. Gordon
(1973) 10 Cal.3d 460, 469; People v. Wallin (1948) 32 Cal.2d 803, 808.) The time frame
was important here because Ngoc testified he received immunity in exchange for his
grand jury and trial testimony. Based on this arrangement, the jury could have concluded
Ngoc was not currently subject to prosecution for the charged offenses when he testified
at trial, and therefore he was not an accomplice whose testimony needed to be
corroborated.
                The Attorney General argues that because Ngoc was only given use
immunity, as opposed to transactional immunity, he was still technically subject to
prosecution at the time of trial. (See generally People v. Sutter (1982) 134 Cal.App.3d
806, 813 [“Use immunity protects a witness only against the actual use of his compelled
testimony and evidence derived directly or indirectly therefrom, while transactional
immunity protects the person against all later prosecutions relating to matters about
which he testifies.”].) However, this distinction was never brought to the jurors’
attention, let alone explained to them. It is doubtful they would have picked up on it.
The distinction does not ameliorate the trial court’s error in instructing the jury to assess
Ngoc’s liability at the time of trial.
                Alternatively, the Attorney General contends the error was immaterial
because there was not that much evidence implicating Ngoc as an accomplice in the
charged offenses anyway. We beg to differ. Given that Ngoc drove the getaway car
during the botched home invasion robbery he had a motive to kill Viet to keep Viet from
implicating him in that crime. Additionally, the evidence revealed Ngoc was at Ingrid’s
party following the robbery, he was part of the ruse appellants used to get Viet in the van,

                                              27
he was sitting next to Viet when he got shot, he was with appellants after the shooting, he
threw his clothes away when he got home, he lied to the police about where he was at the
time of the shooting, and he eventually fled the state. Besides proving Ngoc’s substantial
involvement in the events surrounding Viet’s murder, this evidence shows Ngoc was a
trusted associate of VFL. Although Ngoc testified he did not know Viet was going to be
murdered, he was so immersed in the alleged crimes that it is highly unlikely the jury
would have believed he was not liable for them at the time they occurred.
              Still, even if the jury believed Ngoc was an accomplice, it would have been
allowed to consider his testimony so long as it was sufficiently corroborated. (CALJIC
No. 3.11.) Therefore, if the record contains enough evidence to corroborate Ngoc’s
testimony, the trial court’s failure to give proper instructions on accomplice liability
would be harmless error. (People v. Miranda (1987) 44 Cal.3d 57, 100; People v.
DeJesus (1995) 38 Cal.App.4th 1, 25.) In this regard, we must keep in mind, “The
corroborating evidence may be circumstantial or slight and entitled to little consideration
when standing alone,” and it “need not corroborate the accomplice as to every fact on
which the accomplice testifies [citation] [or] establish every element of the charged
offense [citation].” (People v. Vu (2006) 143 Cal.App.4th 1009, 1022.) It will suffice if
the corroborating evidence “tends to connect the defendant with the crime in such a way
as to satisfy the jury that the accomplice is telling the truth. [Citation.]” (People v.
Fauber (1992) 2 Cal.4th 792, 834.)
              At trial, nearly every material aspect of Ngoc’s testimony was corroborated
to some degree. His testimony Viet fled during the home invasion robbery was
corroborated by Betty McDonald. His testimony Viet seemed worried at Ingrid’s house
after the robbery was corroborated by Linh Vu. His testimony Tam had Viet pull over on
the side of the freeway before the shooting was corroborated by Lucia Carter and other
witnesses who saw a van on the shoulder of the 405 freeway on the morning, and in the
area, of the shooting. His testimony Tam shot Viet was corroborated by Ingrid, who

                                              28
testified Tam told her he had to “take someone out.” His testimony Tran picked him up
along with Tam after the shooting was corroborated by Carter, who saw an Asian man
running from the van to a waiting car as she passed by the area.17 His testimony about
spending the night at a motel with appellants following the murder was corroborated by
the fact their motel room was registered to Linh Vu, whose brothers had close ties to
Johnson and VFL. And his testimony Johnson assured everyone they had nothing to
worry about based on a newspaper article about the shooting was corroborated by the fact
the Orange County Register ran an article stating the police had few clues about Viet’s
murder. The sum and substance of this corroborative evidence connected appellants with
the alleged crimes in such a way as to provide abundant basis for accepting Ngoc’s
testimony as truthful. Therefore, the flawed accomplice instruction is not cause for
reversal.
                  For largely the same reason, we reject Johnson and Tam’s claim that
Ngoc’s testimony was insufficiently corroborated to support the conclusion they were
involved in Viet’s murder. In addition to the corroborative evidence mentioned above,
Johnson admitted to the police that he was involved in the botched home invasion
robbery, that he talked to Viet later that night at Ingrid’s house, and that he was perceived
as the leader of VFL. During his police interview, Johnson also indicated Ngoc was
sitting next to Viet when he was murdered, which is just how Ngoc described his position
in the van. With respect to Johnson, these statements further bolstered the credibility of
Ngoc’s testimony. The corroborative evidence was more than sufficient to justify the
jury’s belief Ngoc was telling the truth, despite his being an accomplice to the crimes in
question.18
         17
                  The fact Carter described the waiting car as white and Ngoc said it was light green strikes us as
being a minor discrepancy considering the incident occurred in the middle of the night. At trial, appellants argued
the waiting car belonged to Ngoc, but his car had two doors, and Carter testified the car she saw had four doors,
which was consistent with Ngoc’s testimony.
         18
                  Appellants challenged the sufficiency of the corroborative evidence at the end of the prosecution’s
case-in-chief pursuant to section 1118.1 and in moving for a new trial under section 1181. Tam contends the trial
court used the wrong standard in assessing his section 1118.1 motion by applying the substantial evidence test that is


                                                         29
                                              Evidentiary Issues
                  Appellants raise a variety of claims about the admissibility and sufficiency
of the evidence presented against them. We address these claims in turn.
1. Admissibility of letters suggesting Johnson was VFL’s leader
                  In order to support its theory Johnson led VFL and ordered Viet’s murder,
the prosecution introduced two letters found in the home of VFL member Noel Plata
during an unrelated investigation in 1996. Johnson argues the letters should have been
excluded because they were not properly authenticated, they constituted inadmissible
hearsay, and their admission violated his Sixth Amendment and due process rights.19 We
find the letters were properly admitted into evidence.
                  The first letter was written by Plata to former VFL member Tam Thanh
Nguyen in 1993.20 It is peculiar because when Plata penned it, Tam Thanh was deceased,
having been killed in 1992, so it may be more of a purging exercise than an actual
missive. In the letter, Plata seeks Tam Thanh’s help and guidance with respect to various
issues going on with VFL. Plata expresses particular concern about the fact Johnson is
trying to get him kicked out of VFL for “ratting on him.” After expressing his regret for
implicating Johnson, Plata tells Tam Thanh, “All I’m asking is that you let [the VFL gang
members] change their mind about jumping me out and you let this thing with me and
[Johnson] go by without any problems[.]” In the letter, Plata also pledges his support for
VFL and promises Tam Thanh he “would never rat on anyone again now that [he]
know[s] how the cops do things.”
                  The second letter was written from VFL member Ronald Tran to Plata in
April 1995, shortly after Viet’s murder.21 Speaking to Johnson’s role in VFL, Ronald

applicable on appeal. However, that is actually the correct standard for a section 1118.1 motion. (People v. Stevens,
supra, 41 Cal.4th at p. 200.) In applying that standard, the trial court did not abdicate its duty to independently
assess the strength of the prosecution’s evidence.
         19
                   Tran joins these arguments, as well as all of the other claims Johnson raises on appeal.
         20
                   We will refer to Tam Thanh Nguyen as Tam Thanh to differentiate him from appellant Tam
Nguyen.
         21
                   We will refer to Ronald Tran as Ronald to differentiate him from appellant Truc Tran.


                                                         30
wrote, “So what’s this about [Johnson] being shot-caller? So what? If he won’t then
who will? Cause if no one leads the way, then those little youngsters will get into even
more trouble, especially stupid shit. Even though [Johnson] isn’t exactly my top choice
to play leader there’s nobody out that’s been around long enough to know what’s up,
except E.T., Quoc, you and a few others[.]”
              Finding the letters more probative than prejudicial, the trial court allowed
gang expert Nye to rely on them in forming his opinion about the case. Nye opined that
“ratting” can have severe consequences for gang members and that Johnson was a
prominent member of VFL who had the juice to order the hit on Viet.
              In admitting the letters into evidence, the court instructed the jurors they
could not consider them for the truth of the matters asserted therein. Rather, they were
only admissible as evidence of the basis for Nye’s opinions. Additionally, if the
prosecution failed to prove the statements in the letters were actually made or true, the
jury could consider that in deciding what weight to accord Nye’s opinions.
              Notwithstanding these instructions, Johnson contends the prosecutor
should have called Plata or Ronald (the purported authors), or at least someone who was
familiar with their handwriting, to authenticate the letters. However, the state was not
required to do so, since a writing may be authenticated by any evidence showing it is the
writing the proponent of the evidence claims it is. (Evid. Code, §§ 1400, 1410, 1411.)
“Circumstantial evidence, content and location are all valid means of authentication.”
(People v. Gibson (2001) 90 Cal.App.4th 371, 383.) A writing may even be
authenticated by showing it refers to matters that are unlikely to be known by anyone
other than the claimed author. (Evid. Code, § 1421.)
              The letters at issue here were found in Plata’s house. They are signed,
respectively, in the names of “Noel” and “Ron Tran,” signifying the purported authors,
and each of the letters references matters that are unlikely to be known by anyone else, or
at least anyone outside VFL. For instance, Plata talks about the anguish he has

                                              31
experienced as a result of ratting on appellant and how that has caused dissension in the
gang. And Ronald not only offers his advice about who he thinks could lead VFL, he
asks if Johnson is still in Texas, which is where he fled after the shooting. All told, there
was sufficient evidence to show the letters were authentic.
                 Johnson also complains that, when the letters were offered into evidence,
“No exception to the hearsay rule was propounded by the prosecution and none was
required by the court.” However, that’s because the letters were not offered for the truth
of their contents, but instead were simply used as foundational information for the gang
expert’s opinions. Since the letters were not offered for their substantive truth, they were
not hearsay under California law. (Evid. Code, §§ 1200, subd. (a) [hearsay rule] & 801,
subd. (b) [permissible basis for expert testimony].)
                 This conclusion is supported by our Supreme Court’s opinion in People v.
Gardeley (1996) 14 Cal.4th 605 (Gardeley), which upheld the practice used here of
allowing a gang expert to rely on and reveal to the jury the contents of otherwise
inadmissible evidence in stating his opinions about the case. (Id. at pp. 618-619.) While
some courts have questioned Gardeley’s assumption that basis evidence for expert
testimony is not admitted for its truth, we are not at liberty to reexamine this issue. (See
People v. Hill, supra, 191 Cal.App.4th at p. 1131 [postulating that Gardeley’s assumption
in this regard may be incorrect, but holding the “judicial hierarchy” that exists among
state courts requires intermediate appellate courts to follow that decision].)22
                 Even if the jury failed to heed the court’s limiting instructions and
considered the letters for their substantive truth there was no violation of the
confrontation clause because the letters were not testimonial in nature, i.e., they were not
composed in a formal setting in anticipation of trial. Rather, they reflect informal

        22
                   The California Supreme Court is currently considering whether Gardeley comports with current
trends respecting the Sixth Amendment’s Confrontation Clause. (See People v. Sanchez (2014) 223 Cal.App.4th 1,
review granted May 14, 2014, S216681 and People v. Archuleta (2014) 225 Cal.App.4th 527, review granted June
11, 2014, S218640.)


                                                      32
communications between gang members that took place outside the context of a criminal
investigation. Therefore, no Sixth Amendment violation occurred. (People v. Lopez,
supra, 56 Cal.4th at pp. 1065-1066; People v. Valdez, supra, 220 Cal.App.4th at pp. 35-
36; People v. Hill, supra, 191 Cal.App.4th at pp. 1135-1136; People v. Garcia, supra,
168 Cal.App.4th at pp. 287, 291.)
              Turning to Johnson’s due process argument, he contends the letters
rendered his trial fundamentally unfair because they did not support Nye’s opinion that
he (Johnson) had the power to order the hit on Viet. But in the letter written by Ronald,
he alluded to Johnson as a “shot caller” for VFL and surmised Johnson was one of the
few people who had the chops to lead the gang. And in the other letter, Plata made clear
he was facing the prospect of expulsion from VFL for ratting on Johnson. This evidence
shows Johnson’s prominence and pull within the gang. It was certainly probative of
whether he called for Viet’s murder, which was a central issue in the case. Moreover,
because the prosecutor used the letters as basis evidence, as opposed to character
evidence, they were not likely to have a blinding effect on the jury. We conclude the
letters did not undermine Johnson’s constitutional right to a fair trial. The trial court did
not err in admitting the letters into evidence and allowing the prosecution’s gang expert
to rely on them in forming his opinions.
              But even were we to conclude otherwise, reversal would not be required
because, irrespective of the letters found in Plata’s home, there was considerable
evidence Johnson was the leader of VFL. Nye, for one, testified that, separate and apart
from the letters, his vast experience investigating VFL’s activities and talking to its
members led him to believe Johnson was VFL’s leader. This belief was shared by Ngoc
and Binh, who described Johnson as being forceful, dominant and having “a leadership
aura about him.” Even Johnson himself admitted to the police that people perceived him
as the leader of VFL. And, of course, Johnson’s actions surrounding Viet’s death also
support the conclusion he called the shots for the gang. Thus, assuming the court erred in

                                              33
admitting the subject letters into evidence, the error was harmless. It is simply not
reasonably probable Johnson would have obtained a more favorable result had the letters
been excluded. (People v. Watson (1956) 46 Cal.2d 818.)
2. Foundation for the prosecutor’s hypothetical questions to Nye
              At trial, the prosecutor utilized hypothetical questions to elicit Nye’s
opinion about whether the charged offenses were committed for the benefit of a gang.
The questions asked Nye to assume a new gang member was murdered at the direction of
his gang’s leader and that the murder was carried out in the manner Ngoc described at
trial. Johnson claims the questions lacked adequate evidentiary support, but that is not
the case. Indeed, we can give this claim short shrift because it is based on the erroneous
assumption the letters found in Plata’s home were improperly admitted into evidence and
Ngoc’s testimony was not sufficiently corroborated. As we have explained above, those
assumptions are incorrect.
              Johnson also contends the hypothetical questions were faulty to the extent
they relied on the testimony of Binh, whom Johnson describes as an uncorroborated
accomplice. However, there was no evidence implicating Binh in the planning or
execution of Viet’s murder. Binh did make up an alibi with Ngoc following the murder,
but he did so at Johnson’s direction to cover for Ngoc. Because the evidence did not
establish Binh was liable for the crimes charged against appellants, he was not an
accomplice whose testimony required corroboration. As such, there is no basis for
impugning the foundation of the prosecutor’s hypothetical questions to Nye, and his
opinions were properly admitted into evidence.
3. The pistol-whipping incident
              Johnson next asserts the trial court erred in admitting evidence he had
previously committed the crime of assault with a firearm. He contends the evidence,
which came in during Ngoc’s testimony, constituted inadmissible character evidence, but
we find it was properly admitted to show Ngoc’s fear of Johnson.

                                             34
              At trial, Ngoc said he was not comfortable testifying against Johnson
because Johnson could be very intimidating. Defense counsel questioned Ngoc’s fear of
Johnson and got him to admit on cross-examination that Johnson was always nice to him.
That prompted the prosecutor to elicit the evidence in question. In order to show Ngoc’s
fear of Johnson was genuine, the prosecutor asked him about an incident that occurred at
a party about a month before Viet was murdered. Ngoc recalled that after someone at the
party gave Johnson a funny look, Johnson took out a gun and hit him in the head with the
weapon. Then Johnson pointed the gun around, and everyone at the party fled. The trial
court instructed the jury this incident was admissible only against Johnson and only to the
extent it pertained to the credibility of Ngoc’s claim that he was afraid of Johnson.
              Johnson argues the incident was irrelevant because it did not logically bear
upon whether Ngoc was fearful of him. But the fact Ngoc witnessed Johnson pistol whip
another person for simply looking at him the wrong way could easily lead Ngoc to
believe that Johnson had a very short temper and that he was not the least bit afraid to use
violence in the face of a perceived slight. It’s hard to imagine that anyone who witnessed
the pistol-whipping incident would not be affected by the disproportionality and
brazenness of Johnson’s conduct.
              And the evidence was not unduly prejudicial because it was accompanied
by a limiting instruction, and there was a plethora of other evidence implicating Johnson
in more serious criminal behavior. Given all these considerations, the trial court did not
abuse its discretion in allowing Ngoc to testify about the pistol-whipping incident.
(People v. Hawkins (1995) 10 Cal.4th 920, 951-952, abrogated on other grounds in
People v. Lasko (2000) 23 Cal.4th 101, 110 [evidence of the defendant’s prior bad acts
was properly admitted to rehabilitate the credibility of a reluctant witness].)
4. Photographs of Viet’s body
              Tam argues the trial court erred in allowing the prosecution to present
photographs of the murder scene and Viet’s gunshot wounds to the jury. He contends the

                                             35
photos were “gruesome” and “served no purpose other than to inflame the emotions of
the jurors,” but we find they were properly admitted into evidence.
               “‘“The admission of allegedly gruesome photographs is basically a
question of relevance over which the trial court has broad discretion.” [Citations.] The
further decision whether to nevertheless exclude relevant photographs as unduly
prejudicial is similarly committed to the trial court’s discretion: “A trial court’s decision
to admit photographs under Evidence Code section 352 will be upheld on appeal unless
the prejudicial effect of such photographs clearly outweighs their probative value.”’
[Citations.]” (People v. Duff (2014) 58 Cal.4th 527, 557.)
               At trial, there was no dispute Viet died from two gunshot wounds to the
back of the head. However, there was considerable disagreement about the
circumstances surrounding the shooting and how it played out. And, of course, the
identity of the shooter was in dispute. Since Ngoc was the only trial witness who actually
saw Viet’s murder, the defense critically examined his account of the shooting. They
wanted to know exactly where everyone in the van was sitting as the shooting unfolded
and why Ngoc’s door was open when the second shot was fired. The suggestion was that
Ngoc was in on the shooting and that he concocted his version of events to avoid
prosecution.
               Consequently, the prosecutor spent a considerable amount of time
establishing through various investigators how the shots were fired and what direction
they took. In this process, the prosecutor utilized several exhibits that were marked for
identification, including photos that were taken of Viet at the murder scene and during
the course of his autopsy. They showed Viet’s bullet wounds and how metal probes were
put through his head to determine bullet trajectory. They also depicted blood splatters
and human flesh that were found on the door next to the front passenger seat of Viet’s
van.



                                             36
              In response to a defense objection to the photographs, the prosecutor
withdrew two of them, and the court excluded several more, which it described as “some
of the more bloody, graphic photographs.” The court felt the remaining photos were
more probative than prejudicial and admitted them into evidence.
              Given that Ngoc’s testimony about how the shots were fired was hotly
contested at trial, the court’s ruling was not unreasonable. The photographs were
relevant to corroborate Ngoc’s version of events, and both the prosecutor and the court
took steps to ensure the jury would not be exposed to photographic carnage
unnecessarily. However, the reality is that in cases like this, where the underlying crime
is horrifically violent, it is virtually impossible to shield the jury from all unpleasant
images. We discern no abuse of discretion in the court’s handling of the photographic
evidence.
5. The gang enhancement
              Johnson argues there is insufficient evidence Viet was murdered for gang-
related purposes as opposed to personal ones. That is not the case.
              Johnson’s argument is focused on the sufficiency of the evidence at the end
of the prosecution’s case-in-chief. In particular, he contends the trial court should have
granted his motion for acquittal on the gang enhancement allegation at that point in the
case. (§ 1118.1.) As noted above, “‘The standard applied by a trial court in ruling upon a
motion for judgment of acquittal [under that section] is the same as the standard applied
by an appellate court in reviewing the sufficiency of the evidence to support a conviction,
that is, “whether from the evidence, including all reasonable inferences to be drawn
therefrom, there is any substantial evidence of the existence of each element of the
offense [or enhancement] charged.”’ [Citation.] . . . The question ‘is simply whether the
prosecution has presented sufficient evidence to present the matter to the jury for its
determination.’ [Citation.]” (People v. Stevens, supra, 41 Cal.4th at p. 200.)



                                              37
              Section 186.22, subdivision (b)(1) authorizes a sentence enhancement when
the defendant “is convicted of a felony committed for the benefit of, at the direction of, or
in association with any criminal street gang, with the specific intent to promote, further,
or assist in any criminal conduct by gang members[.]” Although the enhancement
applies only when the underlying crime is “gang related” (Gardeley, supra, 14 Cal.4th at
p. 622), and “[n]ot every crime committed by gang members is related to a gang” (People
v. Albillar (2010) 51 Cal.4th 47, 60), we believe there is substantial evidence the crimes
in this case were committed for the benefit of a gang.
              In arguing otherwise, Johnson does not dispute that Viet’s murder had all
the trappings of a gang-style hit and that gang expert Nye opined the murder benefited
VFL by eliminating a “weak link” in the gang’s operating force. But in Johnson’s mind,
none of that matters because – notwithstanding any benefit that may have inured to VFL
by virtue of Viet’s murder – the crime also benefited him on a personal level because it
led to the death of a witness who could have implicated him in the botched home
invasion robbery.
              We do not dispute Johnson may have had multiple motives for getting rid
of Viet. But on appeal we do not reweigh the evidence or attempt to ascertain which
interpretation of the evidence is more viable; that is the function of the jury. (People v.
Sanchez (2003) 113 Cal.App.4th 325, 330.) Instead, we must simply decide whether,
under any hypothesis whatsoever, there is substantial evidence to support the judgment
below. (People v. Cravens (2012) 53 Cal.4th 500, 508.) The fact the various
circumstances can be reconciled with a contrary finding does not warrant reversal.
(People v. Bean (1988) 46 Cal.3d 919, 932-933.)
              That being the case, Johnson’s attack on the sufficiency of the evidence
cannot prevail. The prosecution’s evidence demonstrated Viet’s murder was carried out
to eliminate a member of VFL who was not up to snuff in terms of carrying out one of
the gang’s primary criminal activities – home invasion robbery. Indeed, the jury could

                                             38
reasonably conclude appellants murdered Viet in the belief his absence would allow the
gang to operate more effectively. That potential benefit was clearly articulated by gang
expert Nye in his testimony.
              Johnson correctly notes there was evidence indicating he caught flak about
Viet’s murder from the Los Angeles chapter of VFL, which apparently had a certain
amount of control over appellants’ gang. Johnson argues this shows the murder was not
authorized by the chain of command, and thus it could have only brought him and VFL
problems. This establishes only that others disagreed about whether the murder was a
good choice for the gang, not that it was not committed for gang purposes.
              But even if the “benefit” prong of the gang enhancement was not satisfied,
it is clear Viet’s murder was carried out “at the direction of” and “in association with” a
criminal street gang for purposes of section 186.22, subdivision (b). In that regard, the
jury could conclude Johnson put the murder plan in motion by sending Viet, Tam and
Ngoc off on a phony drug run and that Tam, aided by Tran, carried out the plan by
shooting Viet on the side of the road. Moreover, by working together and observing
Johnson’s admonition to keep their mouths shut, appellants managed to avoid
apprehension for over a decade. All of this shows gang coordination and cooperation.
The combined circumstances of the case were amply sufficient to support a true finding
on the gang enhancement allegation. (People v. Albillar, supra, 51 Cal.4th at pp. 59-68.)
6. Ngoc’s refusal to take a polygraph test
              When Ngoc was interviewed by the police in 2008, he refused the officers’
request to take a lie detector test. Johnson claims the trial court violated his confrontation
rights by not letting him cross-examine Ngoc as to why he refused to take the test.
However, the law prohibits inquiry into such matters.
              “Evidence Code section 351.1 provides that the results of a polygraph
examination ‘shall not be admitted into evidence in any criminal proceeding . . . unless all
parties stipulate to the admission of such results.’ The statute also excludes evidence of

                                             39
‘an offer to take’ or the ‘failure to take’ such a test.” (People v. Espinoza (1992) 3
Cal.4th 806, 816.) The basis for this exclusionary rule is the lack of reliability of
polygraph results. Although the admissibility of polygraph results was not at issue in this
case (since Ngoc refused to take a polygraph test altogether), this rationale also explains
why the trial court was correct in precluding Johnson’s attorney from questioning Ngoc
about why he refused to take a polygraph test: “[B]ecause lie detector tests themselves
are not considered reliable enough to have probative value, ‘a suspect’s willingness or
unwillingness to take such a test is likewise without enough probative value to justify its
admission. The suspect may refuse to take the test, not because he fears that it will reveal
consciousness of guilt, but because it may record as a lie what is in fact the truth. A
guilty suspect, on the other hand, may be willing to hazard the test in the hope that it will
erroneously record innocence, knowing that even if it does not the results cannot be used
as evidence against him.’” (People v. Thornton (1974) 11 Cal.3d 738, 764, overruled on
other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)
                Despite the applicability of Evidence Code section 351.1’s exclusionary
rule in this case, Johnson argues the rule should have been suspended to accommodate
his constitutional right to confront his accusers. Our Supreme Court has consistently
rejected this argument. (People v. Richardson (2008) 43 Cal.4th 959, 1032-1033; People
v. Wilkinson (2004) 33 Cal.4th 821, 849-850; People v. Burgener (2003) 29 Cal.4th 833,
870-871.) The argument assumes the right of confrontation is absolute, when in fact
judges retain wide discretion to impose reasonable limits on cross-examination.
(Delaware v. Van Arsdall (1986) 475 U.S. 673, 679; Delaware v. Fensterer (1985) 474
U.S. 15, 20.)
                It is important to keep in mind as well that, even though the trial court
precluded questioning about why Ngoc refused to take a polygraph test, that did not
prevent defense counsel from rigorously cross-examining him. As a matter of fact, Ngoc
faced intense questioning about his immunity agreement with the prosecution, his

                                               40
numerous false statements and his past criminal behavior. The trial court even had to
admonish defense counsel to tone down their attack on Ngoc at several points during his
cross-examination. Suffice it to say, the jury would not have been left with a
significantly different impression of Ngoc’s credibility had the court allowed further
questioning about his motive for not taking a lie detector test. The absence of such
questioning is not cause for reversal. (People v. Carpenter (1999) 21 Cal.4th 1016, 1051;
People v. Frye (1998) 18 Cal.4th 894, 946, disapproved on other grounds in People v.
Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Quartermain (1997) 16 Cal.4th 600,
623-624.)
                             Alleged Prosecutorial Misconduct
              Appellants contend the prosecutor engaged in multiple instances of
prejudicial misconduct during the trial. We do not see it that way.
1. General principles
              As the representative of the government in a criminal case, “‘It is a
prosecutor’s duty “to see that those accused of crime are afforded a fair trial.”
[Citation.]’” (People v. Daggett (1990) 225 Cal.App.3d 751, 759.) A prosecutor “may
strike hard blows, [but] he is not at liberty to strike foul ones.” (Berger v. United States
(1935) 295 U.S. 78, 88; People v. Garcia (2014) 229 Cal.App.4th 302, 316-317.) “Under
California law, a prosecutor commits reversible misconduct if he or she makes use of
‘deceptive or reprehensible methods’ in attempting to persuade either the trial court or the
jury, and when it is reasonably probable that without such misconduct, an outcome more
favorable to the defendant would have resulted. [Citation.] And under the federal
Constitution, conduct by a prosecutor that does not result in the denial of the defendant’s
specific constitutional rights . . . but is otherwise worthy of condemnation, is not a
constitutional violation unless the challenged action ‘“so infected the trial with unfairness
as to make the resulting conviction a denial of due process.”’ [Citation.]” (People v.
Rundle (2008) 43 Cal.4th 76, 157, disapproved on other grounds in People v. Doolin,

                                             41
supra, 45 Cal.4th at p. 421, fn. 22.) We apply these considerations in resolving the issues
raised here.
2. Alluding to inadmissible evidence
               The first instance of alleged misconduct centers on the questioning of
prosecution witness Linh Vu, who not only talked to Viet at Ingrid’s party but also spoke
with Johnson and the police in the wake of Viet’s murder. On direct examination, Vu
testified that once he learned Viet had been shot in the back of the head, he did not
believe appellants’ claim that Viet was killed in a drug deal. He also testified he did not
express his suspicions about Viet’s death to anyone. But that was not true. When the
police interviewed Vu after Viet was killed, he said he had told members of the Los
Angeles chapter of VFL that appellants may have been behind Viet’s murder. However,
when the prosecutor tried to impeach Vu with his police statement, the defense objected
and the court expressed concern Vu’s statement was irrelevant and unduly speculative.
Yet the court did give the prosecutor permission to elicit evidence that Vu had talked to
the Los Angeles members more generally about the need to find out who murdered Viet.
               When Vu’s testimony resumed, the prosecutor asked him why he never told
the police his suspicions about who killed Viet. Vu claimed he simply did not know
enough about the matter, to which the prosecutor responded, “Well, you were bothered
enough when you found out that Johnson was lying to you [about how Viet was killed]
you talk[ed] to . . . [the Los Angeles members] about it; right?” When Vu answered no,
the prosecutor impeached him by reading excerpts of Vu’s interview with the police. In
one of the excerpts, Vu alluded to talking to the Los Angeles members about his
suspicions and telling them that if someone in appellants’ gang had killed Viet, they
“better find out who did it.”
               As he did at trial, Tam claims this was improper impeachment because the
trial court had previously ruled this line of questioning out of bounds. However, as
explained above, the trial court did allow the prosecutor some leeway in this area. We

                                             42
agree with the trial court’s assessment that Vu’s impeachment did not contravene the
court’s prior ruling. In any event, any misconduct that occurred was cured because, in an
abundance of caution, the trial court ended up striking the questions and answers that
formed the basis for Vu’s impeachment. No prejudice inured to Tam under these
circumstances.
3. Referencing the fate of other VFL members
              Appellants also assign misconduct to the prosecutor’s comments in rebuttal
argument regarding VFL members Terry Tackett and Philip Dang, who were killed after
Viet was murdered. The prosecutor referred to their deaths in attempting to explain why
Ngoc was reluctant to turn state’s evidence. Here is what the prosecutor said in that
regard: “Now, the defense pooh-poohed Ngoc Nguyen being afraid to testify in court or
to implicate these defendants to the police when they were interview[ing him]. Oh, it’s
laughable, isn’t it? It’s not laughable. What do we know? Well, we know that
somebody shot and killed Viet Nguyen after he botched this robbery and was talking
about having participated in it at school. We know that. Is that a joke?
              “Okay. We know that Phillip Dang, the guy who introduced Ngoc into
VFL – we don’t know the precise circumstances, but we know he was VFL. He is the
guy who found a place for Johnson to stay in Texas. [¶] Go back to Johnson’s March
30th interview, 1995. Phillip Dang gets murdered. That’s this small sect of VFL.
There’s two people already who were murdered. Okay. Is that a joke?
              “Is Ngoc’s fear of being killed a joke? Well, [Sergeant] Rudisill, when he
goes back to interview [Ngoc] in 2008, he doesn’t do it intentionally, but he inadvertently
says, oh, yeah, we talked to Tackett, and Tackett was telling us some stuff. And oh, yeah,
Tackett got murdered, by the way. Oh, it’s totally unrelated, [Ngoc]. Don’t worry about
it. [¶] So he is telling him right at the beginning of this interview, in effect, in case you
forgot, another VFL guy got murdered after giving information to the police. Do you



                                              43
think that put Ngoc’s mind at ease about testifying in the case? He is scared out of his
mind and for good reason.”
              Appellants claim that while there was evidence Tackett and Dang were
killed in gang-related matters,23 the prosecutor’s remarks were improper because there
was no evidence they were killed specifically because they provided information to the
police. Appellants take particular umbrage to the prosecutor referencing Rudisill’s
statements to Ngoc about Tackett’s murder, since those statements were the basis for the
prosecutor’s argument Tackett was murdered for ratting on VFL. Appellant’s suspect if
the jurors bought into this argument, then they would be more inclined to go along with
the prosecution’s theory appellants killed Viet to prevent him from becoming a stool
pigeon.
              However, it is clear from the above-quoted passage that the prosecutor did
not use Rudisill’s statement as direct evidence of appellants’ guilt. Rather, he merely
tried to explain why Ngoc might be reluctant to implicate appellants in criminal activity.
Furthermore, the trial court gave two instructions to ensure the jury did not misuse
Rudisill’s statements for any other purpose. First, with respect to police interviews in
general, the court instructed the jury not to consider anything the interviewing officers
said for the truth of the matter asserted. And second, the court told the jury not to
consider the particular statement Rudisill made to Ngoc about Tackett’s death for its
truth, but only for how it might have affected Ngoc’s state of mind.
              This was a reasonable approach because Ngoc’s knowledge of the fact
Tackett may have been murdered for providing information to the police logically
pertained to whether Ngoc was telling the truth when he was interviewed before trial and
when he was questioned in court. Because the prosecutor’s argument was geared toward
Ngoc’s credibility, and not appellants’ character or culpability, it was not improper.


       23
              Ngoc made statements to this effect both during his pretrial police interview and at trial.


                                                      44
4. Failing to heed limiting instruction
              Giang and Tran assert the prosecutor improperly argued Giang drove
Johnson to the airport when Johnson left for Texas. The argument was based on
Johnson’s statement to the police that he got a ride to the airport in the car of Giang’s
girlfriend Tammy Phan. Since Phan was in jail at that time, and Giang admitted he drove
Phan’s car when she was in custody, it was reasonable to infer Giang is the one who
drove Johnson to the airport, as the prosecutor argued.
              The problem is, the trial court admitted Johnson’s statements solely against
him. So by using Johnson’s statement to argue Giang was the one who took Johnson to
the airport, the prosecutor failed to adhere to the limiting instruction. However, Giang’s
alleged role in taking Johnson to the airport after the murder was a miniscule part of the
prosecution’s case against him. That information paled in comparison to the other
evidence that was properly admitted against Giang. The great bulk of the evidence not
only implicated Giang in the botched home invasion robbery and the plan to kill Viet, it
also suggested he let Tran use Phan’s car to pick up Tram and Ngoc following the
shooting. Of course, Giang was also with appellants at the motel room after the murder
and when they met up later on to discuss their alibis and flight plans. Thus, even if the
prosecutor had not alluded to Giang taking Johnson to the airport, it is exceedingly
unlikely Giang would have received a more favorable verdict. Because of this, and
because the challenged statements did not render the trial fundamentally unfair, they are
not cause for reversal.
5. Alleged Griffin error
              Continuing his critique of the prosecutor’s closing argument, Tam contends
the prosecutor improperly commented on his failure to testify. However, what the
prosecutor actually said was that Tam’s attorney did not do a very good job of explaining
or addressing the issues that he (the prosecutor) brought up during his initial closing
argument. In this regard, the prosecutor noted there was “[n]o discussion whatsoever

                                             45
about why Tam, in the spring of 1995, suddenly has to go to Texas. No explanation
whatsoever.” Tam sees this as a violation of the Griffin rule, which prohibits the
prosecutor from drawing negative inferences from the accused’s failure to take the stand.
(See Griffin v. California (1965) 380 U.S. 609.) But the rule does not prohibit the
prosecutor from commenting on the state of the evidence or the defendant’s failure to
introduce material evidence or call logical witnesses. (People v. Hovey (1988) 44 Cal.3d
543, 572.) Rather, the rule is violated only when the prosecutor alludes to the absence of
evidence that can only be provided by the defendant himself. (People v. Hughes (2002)
27 Cal.4th 287, 372.)
              That did not happen here. Tam’s girlfriend Ingrid testified about the fact
that she and Tam moved to Texas following the shooting. Therefore, she was in a good
position to explain why the move occurred. Because Tam was not the only person who
could have provided an explanation in this regard, the prosecutor did not commit Griffin
error. (People v. Murtishaw (1981) 29 Cal.3d 733, 757, fn. 20.) His allusion to the lack
of defense evidence explaining the move – his comment that Tam’s counsel had not
explained it – was a fair comment on the state of the evidence and did not violate Tam’s
right against self-incrimination.
              Tam also contends the prosecutor committed misconduct by eliciting the
fact Linh Vu invoked his right not to testify when he was called as a witness. (See Evid.
Code, § 913, subd. (a); People v. Padilla (1995) 11 Cal.4th 891, 948, overruled on other
grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) The Attorney General does
not dispute this contention but argues the misconduct was harmless because the line of
questioning about Vu invoking his right against self-incrimination helped the defense by
undermining Vu’s credibility. Indeed, as the Attorney General correctly notes, Tam’s
attorney specifically objected to the trial court admonishing the jury not to draw any
adverse inferences from Vu’s decision to invoke the Fifth. (See Evid. Code, § 913, subd.



                                            46
(b).) Under these circumstances, Tam has no right to complain about the alleged
misconduct.
6. Appealing to the passion and prejudice of the jury
              Appellants aver the prosecutor improperly attempted to garner sympathy
for Viet and his family. They point out that during opening statements the prosecutor
described Viet as a good student who attended church, played sports and was well liked.
And during closing argument, the prosecutor portrayed Viet as an innocent kid who got
swept up in appellants’ gang. After characterizing Viet in these terms, the prosecutor told
the jurors “it’s not the judge who has the power. It’s not the prosecutor. It’s not the
defense attorneys. It’s you. You have the power in this case to do justice. [¶] There’s
only one power that you do not have. You do not have the power to bring [Viet] back to
life.”
              These remarks prompted a mistrial motion by Tam’s attorney, but the court
denied the motion and allowed the prosecutor to proceed. He finished his closing
argument by telling the jurors, “The one thing that you don’t have the power to do is you
cannot bring [Viet] back from the dead and return him to his mother. The only thing you
have the power to do is bring her justice. The only thing you can do – and it’s not for
sympathy. It’s because that woman deserves justice in this case. Justice in this case is
holding these men responsible. So do your duty.”
              Outside the presence of the jury, Tam’s attorney renewed his motion for a
mistrial, arguing the prosecutor’s final argument amounted to “an unreasonable appeal to
emotion.” In so arguing, Tam’s attorney alleged the prosecutor “was attempting to cry
during his very final remarks [but he] doesn’t appear to be very upset and crying right
now.” Giang’s attorney joined the motion, noting the prosecutor was holding a
photograph of Viet when he made his final remarks and some members of the audience
were crying at the time.



                                             47
                  However, the court did not believe there were grounds for a mistrial. The
court did recognize that emotions on both sides had been running high during the trial
and that during closing argument the prosecutor “hesitated in his speech and his voice
cracked slightly.” But the court observed there were no “tears rolling down [the
prosecutor’s] cheek or anything like that. It was nothing of that sort.” The court also put
the prosecutor’s remarks in context by noting they came after, and in apparent response
to, defense counsel’s insinuation Viet’s parents were aloof and uncaring.24 The court
simply did not believe the challenged remarks were inappropriate given the totality of the
circumstances.
                  Still, to be on the safe side, the court told the jury to disregard any pleas to
sympathy, passion or “doing justice for the family[.]” The court said “that’s something
that . . . you don’t consider. Obviously, it’s emotional, but you don’t consider that.
There’s been some anger expressed at the family. You don’t consider that. [¶] You
know, we’re not here to be mad at the family or [feel] sorry for the family. I know it’s in
human nature to do things like that, but you leave that out of your deliberations.” A few
moments later, the court gave CALCRIM No. 200, which reiterated to the jurors they had
to base their decision on the facts and the law and not be influenced by sentiment,
sympathy, passion or prejudice.
                  While a prosecutor is “entitled to present his argument in colorful terms[]”
(People v. Zambrano (2007) 41 Cal.4th 1082, 1179), the prospect of misconduct arises
whenever a prosecutor invokes sympathy for the victim or his family. Such appeals are
usually “out of place during an objective determination of guilt. [Citation.]” (People v.
Jackson (2009) 45 Cal.4th 662, 691.) However, in alluding to the victim’s mother in this
case, the prosecutor was trying to tap into the jurors’ sense of justice, not their sympathy.

         24
                  In that regard, Tam’s attorney stated, “And I’ll tell you one other thing, and I’ll tell it to Mr. and
Mrs. Nguyen (Viet’s parents). When my teenagers were in high school at Mater Dei, I knew where they were every
second. [¶] So, Mr. Prosecutor, don’t you dare blame me for Viet Nguyen’s bad decisions and the bad decisions of
the mother and father Nguyen.”


                                                          48
And even though there was no need for the prosecutor to hold up a picture of Viet or to
get overly emotional in order to get his points across, the context of his remarks does
make them less objectionable. Considering as well that the trial court repeatedly
admonished the jury to disregard the subject remarks and not base its decision on passion,
prejudice or emotion, we do not believe the remarks rendered appellants’ trial unfair.
Nor is it reasonably probable appellants would have obtained a more favorable result had
they not been uttered. Therefore, they do not warrant reversal. (People v. Rundle, supra,
43 Cal.4th at p. 157.)25
                                   Lying-in-Wait Special Circumstance
                  Claiming the lying-in-wait special circumstance applies only to the direct
perpetrators of murder, Tran, Giang and Johnson contend the circumstance is inapt as to
them because they were convicted on aiding and abetting and conspiracy principles. That
is plainly not the case.
                  Section 190.2 states, “The penalty for a defendant who is found guilty of
murder in the first degree is death or imprisonment in the state prison for life without the
possibility of parole if one or more of the following special circumstances has been
found” true. (§ 190.2, subd. (a).) Among the circumstances listed in this section is that
the “defendant intentionally killed the victim by means of lying in wait.” (Id., at subd.
(a)(15).) Because these provisions reference only the defendant, and not accomplices,
Tran, Giang and Johnson contend they only apply to the actual perpetrator of the offense,
i.e., the person who killed the victim while lying in wait.
                  However, these provisions cannot be read in isolation. Rather, they must
be considered in light of section 190.2, subdivisions (c) and (d), which prescribe death or
LWOP for any person who is “not the actual killer” if he aids and abets a special
         25
                   Tam also faults the prosecutor for asking the jurors to put themselves in Viet’s shoes on the night
of the murder. In attempting to illustrate how hard it would be for Ngoc to remember every detail about the
shooting, the prosecutor did attempt to utilize a hypothetical in which one of the jurors suddenly shot another juror
in the back of the head. However, after the trial court sustained an objection to this argument, the prosecutor quickly
pivoted away from it and told the jury to “scratch that hypothetical.” We do not believe that is cause for reversal.


                                                          49
circumstances murder while harboring the intent to kill, or he acts with reckless
indifference to human life during the commission of a felony murder. As our Supreme
Court has stated, these subdivisions extend the reach of the special circumstances law
beyond the actual perpetrator to include “certain aiders and abettors of first degree
murder. [Citation.]” (People v. Banks (2015) 61 Cal.4th 788, 797-798; accord, People v.
Bonilla, supra, 41 Cal.4th at p. 331; People v. Cleveland (2004) 32 Cal.4th 704, 729,
756; People v. Estrada (1995) 11 Cal.4th 568, 572; People v. Ybarra (2008) 166
Cal.App.4th 1069, 1085-1086.) We cannot ignore them.
                  Appellants draw our attention to cases from other jurisdictions that have
limited the reach of their special circumstances statutes to actual killers. (See, e.g.,
Commonwealth v. Lassiter (Pa. 1998) 722 A.2d 657; Johnson v. State (Tenn. 2001) 38
S.W.3d 52; Young v. Commonwealth (Ky. 2001) 50 S.W.3d 148.) However, these cases
are readily distinguishable because they arose in states that do not have statutes
permitting vicarious application of the special circumstance provisions. Because
California law does extend its special circumstances to aiders and abettors and
coconspirators, the lying-in-wait special circumstance was applicable with respect to
Tran, Giang and Johnson, even though they did not personally kill Viet.26
                                           Tran’s Sentencing Claims
                  The trial court sentenced Tran to the principal term of LWOP on the murder
count and 25-years-to-life on the conspiracy count. The court also imposed a 10-year
gang enhancement on those counts. Although the court stayed the conspiracy sentence
and the gang enhancements, there are two undisputed problems with Tran’s sentence.
                  First, the trial court failed to take into consideration the fact that, unlike his
partners in crime, Tran was a minor – only 17 – when Viet was murdered. The parties

         26
                   In so holding, we also reject appellants’ subsidiary argument that retroactive application of judicial
decisions applying the lying-in-wait special circumstance to nonkillers violates the Fourteenth Amendment. Since
our conclusion about their culpability is based on the language of the special circumstances statute itself, as opposed
to any particular judicial decision, retroactivity is simply not an issue in this case.


                                                          50
agree that, pursuant to People v. Gutierrez (2014) 58 Cal.4th 1354 and Miller v. Alabama
(2012) 567 U.S. __ [132 S.Ct. 2455], Tran is entitled to resentencing on the murder
count, so the court can consider how the attributes of youth generally make the
imposition of a LWOP sentence unsuitable for juvenile offenders in deciding whether to
sentence him to LWOP or 25 years to life on that count. (See § 190.5, subd. (b).)
                  The state also agrees the trial court erred in imposing the 10-year gang
enhancement. Section 186.22, subdivision (b)(1)(C) does currently authorize a 10-year
enhancement when the defendant is convicted of committing a violent felony, such as
murder or conspiracy to commit murder, for the benefit of a criminal street gang.
However, that provision did not exist when this case arose in 1995, and therefore ex post
facto principles preclude its application in this case. (See generally John L. v. Superior
Court (2004) 33 Cal.4th 158, 172-173 [ex post facto principles “allow individuals to rely
on existing penal statutes, and to avoid being unjustly convicted and punished because
the law thereafter changed”].)
                  Moreover, when, as here, the underlying felonies are punishable by life in
prison, the 15-year minimum parole eligibility term set forth in section 186.22,
subdivision (b)(5) applies in lieu of the 10-year enhancement. (People v. Lopez (2005)
34 Cal.4th 1002, 1004; People v. Campos (2011) 196 Cal.App.4th 438, 449.) Therefore,
the 10-year gang enhancements counts cannot stand. On resentencing, those
enhancements must give way to a minimum parole period of 15 years.27 Even though
that period will not have any practical impact on Tran’s parole eligibility date – since he
must serve at least 25 years on those counts anyway – it is still required under the
statutory scheme. (People v. Lopez, supra, 34 Cal.4th at p. 1009.)




         27
                  At the time Viet was murdered in 1995, the 15-year minimum parole eligibility requirement was
contained in section 186.22, subdivision (b)(2). Accordingly, it would not violate ex post facto principles to apply it
in this case.


                                                          51
              This analysis applies equally to Giang and Johnson, who have joined Tran’s
claim regarding the gang enhancements. It also applies to Tam, even though he has not
filed a joinder request. (See People v. Smith (2001) 24 Cal.4th 849, 852 [an unauthorized
sentence may be corrected at any time regardless of whether it was challenged in the trial
court or on appeal].) Therefore, we will order the trial court to impose a 15-year
minimum parole eligibility period in place of the 10-year sentence enhancements
appellants received on the underlying counts.
                                     Cumulative Error
              Lastly, appellants contend the cumulative effect of the trial court’s errors
warrants reversal. While appellants’ trial was not perfect, we do not believe the alleged
errors, whether considered individually or combined, undermined their right to a fair trial.
There is thus no basis to disturb their convictions.
                                      DISPOSITION
              Appellants’ sentences are reversed and the matter is remanded for
resentencing. On remand, the trial court must consider all of the principles governing the
punishment of juvenile offenders in deciding Tran’s sentence on the murder count. With
regard to both that count and the conspiracy count, the court must also sentence each
appellant to a minimum parole eligibility period of 15 years in lieu of the 10-year gang
enhancements. In all other respects, the judgments are affirmed.




                                                  BEDSWORTH, J.
WE CONCUR:



O’LEARY, P. J.


IKOLA, J.


                                             52
