Filed 11/25/13 P. v. Tong CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H038490
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1082954)

         v.

LY TONG,

         Defendant and Appellant.


         A jury found defendant Ly Tong guilty of felony use of tear gas and misdemeanor
assault and resisting arrest for attacking a Vietnamese singer on stage during a
performance at the Santa Clara Convention Center by spraying him with pepper spray
and then resisting arrest. On appeal, defendant claims the trial court erred when it: (1)
denied his Batson/Wheeler1 motion; (2) denied his motion for judgment of acquittal under
Penal Code section 1118.12 based on former section 12403.73 precluding prosecution for
violating section 375; and (3) failed to adequately instruct the jury on the meaning of
“temporary physical discomfort” in defining tear gas. For the reasons stated here, we will
affirm the trial court’s judgment.




         1
         Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22
Cal.3d 258 (Wheeler), disapproved on another ground by Johnson v. California (2005)
545 U.S. 162.
       2
         Unspecified statutory references are to the Penal Code.
       3
         Former section 12403.7 was later repealed and recodified at section 22810.
            I.       FACTUAL AND PROCEDURAL BACKGROUND
       The facts here are taken from the testimony of trial witnesses, including defendant.
A.     PEPPER SPRAY INCIDENT
       On July 18, 2010, defendant attended a concert at the Santa Clara County
Convention Center, where a Vietnamese singer named Dam Vinh Hung was scheduled to
perform. Fearing he would be recognized and not admitted into the concert because of
previous protest efforts, defendant disguised himself as a woman by wearing a dress,
coat, vest, necklace, wig, hat, and high heels.
       Upon gaining entry into the concert, defendant waited until Dam Vinh Hung
began his performance. Defendant then approached the stage waiving fake lotus flowers
to attract Dam Vinh Hung’s attention. When the singer bent down to take the flowers,
defendant sprayed him in the face with either pepper spray or a combination of fish sauce
and perfume, causing the singer to scream.
       Defendant was subdued by a private security guard and, after a struggle, arrested
by the police. During a search incident to defendant’s arrest, police discovered two
canisters of pepper spray. No bottles of perfume were recovered.
       Following the incident, Dam Vinh Hung suffered red, irritated skin (particularly
on his face, arms, and chest); difficulty breathing; coughing; bloodshot and tearing eyes;
and a runny nose. Members of the audience who were in close proximity to the stage
experienced similar symptoms.
B.     TRIAL PROCEEDINGS
          1. Jury Selection
       One of the prospective jurors was a Vietnamese man named Tung Vo. During
voir dire, Tung Vo stated he was born in Vietnam, moved to the United States in 1978,
and was a software engineer. The People exercised a peremptory challenge and
dismissed Tung Vo. Defendant’s counsel made a timely Batson/Wheeler motion, which
the court allowed him to argue outside the presence of the other potential jurors.
       Defendant argued that Tung Vo was the only potential juror in the venire of
Vietnamese descent and that the People’s removal of the potential juror constituted
impermissible group bias. The court denied defendant’s motion, determining that
defendant had not made a prima facie showing of group bias. Even though the court
denied defendant’s motion, it offered the People an opportunity to provide a reason for
their peremptory challenge. The prosecutor pointed to body language, including an
inability to make eye contact, that led her to believe that Tung Vo would be unable to
deliberate effectively with other jurors.
          2. The Substance Sprayed
       A dispute arose at trial regarding the substance defendant sprayed in the face of
the singer Dam Vinh Hung. Though defendant admitted spraying the singer in the face,
he testified that the substance was a combination of fish sauce and perfume, meant to
make the singer smell bad. The People maintained that the substance was pepper spray.
In support, the People relied on the discovery of two canisters of pepper spray during a
search of defendant incident to his arrest. The People also noted the symptoms suffered
by both the singer and audience members who were near the stage. Officer Gary Hosman
of the Santa Clara Police Department testified that, based on his training regarding
chemical agents, the symptoms were consistent with the effects of a chemical spray such
as pepper spray.
       In addition to the physical evidence, the People relied on defendant’s admission
that he had sprayed the singer with pepper spray. Officer Kiet Nguyen of the Santa Clara
Police Department, who interviewed defendant shortly after the spraying incident,
testified that the defendant “explained that he . . . sprayed pepper spray at the performer.”
The People also played a recording of an interview between defendant and a reporter in
Vietnamese that was translated at trial for the jury. During the interview, defendant
stated that he sprayed the singer in the eyes with pepper spray. During his testimony,
defendant claimed the inconsistency reflected a tactical lie on his part. He claimed that
he waited until the trial to disclose that it was fish sauce and perfume rather than pepper
spray “to unmask the conspiracy” and show “all the [victims’] testimony so far is a [sic]
perjury.”
            3. Jury Instructions
       The trial court instructed the jury on the definition of “tear gas” for purposes of
section 375 and former section 12403.7. The instructions for both statutes included the
same definition of tear gas: “Tear gas is all liquid, gaseous or solid substance intended to
produce temporary physical discomfort or permanent injury through being vaporized or
otherwise dispersed in the air. [¶] Oleoresin capsicum (pepper spray) is ‘tear gas.’ ”
Neither party objected to this definition or sought any further clarification.
       The jury convicted defendant of misdemeanor assault (§ 241, subd. (a)); felony
use of tear gas, not in self-defense (former § 12403.7, subd. (g)); felony willful use of tear
gas in a place of public assemblage (§ 375, subds. (a), (d)); felony second-degree
burglary (§§ 459, 460, subd. (b)); and misdemeanor resisting, delaying, or obstructing a
peace officer (§ 148, subd. (a)(1)). The trial judge suspended imposition of sentence for
three years and placed defendant on probation with conditions that included serving six
months in custody. This timely appeal followed.
                             II.              DISCUSSION
A.     BATSON/WHEELER MOTION
       The People exercised a peremptory challenge to excuse prospective juror Tung
Vo. Defendant objected, arguing that the People impermissibly excused him because he
was Vietnamese. After hearing argument from defendant and the People, the court
denied the challenge, determining that defendant failed to make a prima facie showing of
group bias. The court offered the People a chance to explain the reason for the
peremptory challenge to Tung Vo, but made clear the explanation was “optional” because
the court had already denied the challenge for lack of a prima facie showing. On appeal,
defendant argues that he made an adequate prima facie showing of purposeful
discrimination and that the People’s explanation failed to provide an adequate race-
neutral justification for the peremptory challenge.
       Peremptory challenges that remove prospective jurors based solely on race violate
both the state and federal constitutions. (People v. Watson (2008) 43 Cal.4th 652, 670.)
The United States Supreme Court has established a three-step procedure for trial courts to
follow when confronted with a Batson/Wheeler challenge. Step one requires the
defendant to make a prima facie “ ‘showing that the totality of the relevant facts gives
rise to an inference of discriminatory purpose.’ ” (Johnson v. California (2005) 545 U.S.
162, 168, quoting Batson, supra, 476 U.S. at pp. 93-94.) This prima facie requirement is
satisfied “so long as the sum of the proffered facts gives ‘rise to an inference of
discriminatory purpose.’ ” (Johnson, supra, at p. 169, quoting Batson, supra, at p. 94.)
If the trial court determines the defendant has made a prima facie showing, “the ‘burden
shifts to the State to explain adequately the racial exclusion’ by offering permissible race-
neutral justifications for the strikes.” (Johnson, supra, at p. 168, quoting Batson, supra,
at p. 94.) Finally, if the People meet this burden, “ ‘the trial court must then decide . . .
whether the opponent of the strike has proved purposeful racial discrimination.’ ”
(Johnson, supra, at p. 168, quoting Purkett v. Elem (1995) 514 U.S. 765, 767.)
       When, as here, a trial court finds a defendant has failed to make a prima facie
showing giving rise to an inference of discriminatory purpose, we “undertake an
independent review of the record to decide ‘the legal question whether the record
supports an inference that the prosecutor excused a juror on the basis of race.’ ” (People
v. Taylor (2010) 48 Cal.4th 574, 614.) In Wheeler, the California Supreme Court
identified a number of factors that, when present, might support an inference of
discriminatory purpose, including: (1) the striking by the prosecution of all or almost all
individuals of a certain identified group from the venire; (2) a prosecutor’s use of a
disproportionate number of peremptory challenges against an identified group; (3) that
the individuals excused via the prosecutor’s peremptory challenges share no defining
characteristics apart from their status as members of the identified group; and (4) that
defendant is part of the group identified with the individuals who have been excused by
the prosecutor’s peremptory challenges, particularly when the “alleged victim is a
member of the group to which the majority of the remaining jurors belong . . . .”
(Wheeler, supra, 22 Cal.3d at pp. 280-281.) Additionally, “the prosecutor’s questions
and statements during voir dire examination and in exercising his challenges may support
or refute an inference of discriminatory purpose.” (Batson, supra, 476 U.S. at p. 97,
italics omitted.)
       After an independent review of the record, we conclude the record does not
support an inference that the People excused Tung Vo due to his race. An inference of
discriminatory purpose can be supported by a showing that most or all of the potential
jurors of an identifiable group are excused. (Wheeler, supra, at p. 280.) Defendant’s trial
counsel claimed this factor was present because Tung Vo was the only member “of the
jurors who have been seated in the jury box” of Vietnamese descent. As the trial court
correctly noted, however, this claim was inaccurate or at least misleading because there
were two other Vietnamese potential jurors who had been previously excused for cause.
The prosecutor stated she “believe[d] there are still other Vietnamese Americans” in the
jury pool. When asked whether he wished to respond to that statement, defendant’s
counsel declined, submitting instead on his prior argument that a prima facie showing can
be made even when only a single potential juror is removed.
       Even if there were no additional potential jurors in the jury pool of Vietnamese
descent (which would mean the prosecutor excused the only remaining potential juror of
Vietnamese descent when she exercised a peremptory challenge to excuse Tung Vo), the
prosecutor’s action, standing alone, does not support an inference of purposeful
discrimination. While “ ‘the exclusion of a single prospective juror may be the product
of an improper group bias . . . , the challenge of one or two jurors can rarely suggest a
pattern of impermissible exclusion.’ ” (People v. Bell (2007) 40 Cal.4th 582, 598 (Bell).)
Thus, the California Supreme Court has held that the exclusion of most or all members of
an identifiable group when there are only a few members of that group in the jury pool,
without more, does not support an inference of discriminatory purpose. (People v.
Bonilla (2007) 41 Cal.4th 313, 342-343 [excusing two of two African Americans out of a
78-person juror pool insufficient for prima facie case]; Bell, supra, at pp. 597-598
[excusing two of three African Americans insufficient for prima facie case, stating “the
small absolute size of this sample makes drawing an inference of discrimination from this
fact alone impossible”].)
       The other factors similarly do not support an inference of purposeful
discrimination. The People exercised eight peremptory challenges. Based on the record
before us and defendant’s representations, only one of the eight individuals excused by
the People was of Vietnamese descent. This does not demonstrate a disproportionate
number of challenges used to dismiss individuals of Vietnamese descent or that the
People excused jurors with no shared characteristics other than a shared heritage.
Further, no aspect of the prosecutor’s questioning during voir dire suggested any
discriminatory purpose. Finally, while both the defendant and Tung Vo are of
Vietnamese descent, the victim in this case is also Vietnamese. Because we see no
support for an inference of discriminatory purpose in the peremptory challenge to Tung
Vo, defendant’s Batson/Wheeler motion was properly denied.
B.     PROSECUTION UNDER BOTH FORMER SECTION 12403.7 AND SECTION 375
       Defendant moved for a judgment of acquittal, contending that former section
12403.7, subdivision (g), which prohibited the use of tear gas unless it is used in self-
defense, is a special statute that should serve as an exception to section 375, subdivisions
(a) and (d), which proscribe any use of tear gas in a place of “public assemblage.”
       “ ‘It is the general rule that where the general statute standing alone would include
the same matter as the special act, and thus conflict with it, the special act will be
considered as an exception to the general statute whether it was passed before or after
such general enactment.’ . . . ” (In re Williamson (1954) 43 Cal.2d 651, 654
(Williamson.) The “Williamson rule” can apply even in situations where the general
statute contains an element not found in the special statute. Where the elements do not
line up perfectly, “courts must consider the context in which the statutes are placed” and
apply the rule “[i]f it appears from the entire context that a violation of the ‘special’
statute will necessarily or commonly result in a violation of the ‘general’ statute . . . .”
(People v. Jenkins (1980) 28 Cal.3d 494, 502 (Jenkins), italics omitted.)
       As in effect at the time of the pepper spray incident, former section 12403.7
generally allowed adults4 to possess tear gas but prohibited its use for anything other than
self-defense. (Former § 12403.7, subd. (g).) A conviction for the non-self-defense use of
tear gas was a “wobbler.” (Ibid.) As it did at the time of defendant’s offense, section 375
prohibits any use of tear gas in a place of “public assemblage,” regardless of whether that
use is in self-defense. (§ 375, subds. (a), (d).) The version of section 375 in effect at the
time of the pepper spray incident made the willful use of tear gas in a place of public
assemblage a felony only.5 (Former § 375, subd. (d).)
       Defendant characterizes section 375 as a general statute because it prohibits any
use of tear gas and former section 12403.7 as a special statute because it prohibited only
non-self-defense use of tear gas. However, section 375 could be characterized as the
special statute since it prohibits the use of tear gas only in places of public assemblage,
whereas former section 12403.7 prohibited the non-self-defense use of tear gas in any




       4
         The law prohibited possession of tear gas by individuals in any of the following
categories: (1) felons; (2) individuals convicted of assault; (3) individuals convicted of
misuse of tear gas; (4) addicts; and (5) minors. (Former § 12403.7, subds. (a)-(d).)
       5
         As currently in force, the willful use of tear gas in a place of public assemblage
continues to be a felony, punishable pursuant to section 1170, subdivision (h). (§ 375,
subd. (g).)
location. We will nonetheless assume former section 12403.7 is a special statute for
purposes of our analysis.
       The elements of the two statutes are not identical because, unlike section 375, a
violation of former section 12403.7 did not require the use of tear gas to occur in a place
of public assemblage. (Compare § 375, subd. (a) with former § 12403.7, subd. (g).)
Thus, the Williamson rule would only bar defendant’s prosecution under section 375 if,
considering the statutes in their legislative contexts, a violation of former section 12403.7
would “necessarily or commonly result in a violation” of section 375. (Jenkins, supra, 28
Cal.3d at p. 502.) Neither party disputes that defendant’s conduct in this case violated the
elements of both section 375 and former section 12403.7 because he used pepper spray at
the Santa Clara Convention Center, a place of public assemblage, and did not do so in
self-defense. Comparing the two statutes, we conclude that a violation of former section
12403.7 will not necessarily or commonly result in a violation of section 375.
       Decisions precluding prosecution for a general statute due to a conflict with a
special statute have typically involved the interaction between broad, general statutes and
narrowly-drafted statutes prohibiting specific conduct in particular scenarios. Examples
include: (1) prosecution for the use of false statements to obtain unemployment benefits
precluded prosecution under the general forgery statute (People v. Ruster (1976) 16
Cal.3d 690, 698-699, disapproved on another ground by Jenkins, supra, 28 Cal.3d at p.
503, fn. 9); (2) prosecution for welfare fraud precluded prosecution under the general
theft statute (People v. Gilbert (1969) 1 Cal.3d 475, 479-481); and (3) prosecution for
filing a false vehicle theft report precluded prosecution generally for filing a false
document (People v. Murphy (2011) 52 Cal.4th 81, 94).
       Unlike the foregoing authorities, scenarios involving conduct that would violate
former section 12403.7 but not section 375 are readily discernible. Because former
section 12403.7 proscribed the non-self-defense use of tear gas in any location,
individuals could commonly violate the statute without violating section 375. For
example, in order to commit any number of crimes, a person could use tear gas to
immobilize a victim in a residence or other location not used for public assemblage.
Thus, this case is more similar to situations where courts have determined that, although
two statutes overlap, prosecution is nonetheless available for both offenses. (See People
v. Walker (2002) 29 Cal.4th 577, 585-587 [statute making it a felony to willfully fail to
appear after release on bail is reconcilable with a statute providing a sentencing
enhancement for a felony committed while released on bail]; People v. Glenos (1992) 7
Cal.App.4th 1201, 1209-1210 [statute prohibiting aiding and abetting manufacture of a
controlled substance is reconcilable with statute prohibiting making space available for
manufacture of a controlled substance]; People v. Sainz (1999) 74 Cal.App.4th 565, 571-
574 [statute providing sentence enhancement for causing great bodily injury while
driving under the influence is reconcilable with general sentencing enhancement for
inflicting great bodily harm].) Because we find that a violation of former section 12403.7
does not necessarily or commonly violate section 375, they are reconcilable and
defendant’s prosecution for both offenses was proper.
       Our conclusion is not affected by People v. DeLaCruz (1993) 20 Cal.App.4th 955
(DeLaCruz), relied on by defendant. In DeLaCruz, a security guard for a fast food
restaurant who used pepper spray against a loiterer was convicted of violating both
former section 12403.7 and section 375. (DeLaCruz, supra, at pp. 957-958.) On appeal,
the Fifth Appellate District held that prosecution under a different version of former
section 12403.7 (preceding the version at issue here) precluded the security guard’s
prosecution under section 375. (DeLaCruz, supra, at p. 962.) Crucial to that holding,
however, was that the version of section 12403.7 at issue required individuals who
wanted to possess tear gas for self-defense to complete a certification process.
(DeLaCruz, supra, at p. 961.) According to the court, “authorizing use of tear gas by
appropriately trained and certified persons without regard to the place of use[] impliedly
reflects awareness that such use will frequently be necessary in places of public
assemblage.” (Id. at p. 962.) This, according to the court, showed the Legislature’s
intent that a violation of that version of section 12403.7 would necessarily or commonly
violate section 375. (DeLaCruz, supra, at p. 962.)
       Unlike the version of former section 12403.7 at issue in DeLaCruz, at the time of
the pepper spray incident here no such certification requirement existed for possession of
tear gas for self-defense. Instead, except for a few categories of people (see fn. 4, ante),
all adults were entitled to possess tear gas for self-defense. That amendment removed a
key justification for the DeLaCruz court’s conclusion. For this reason, we find
DeLaCruz distinguishable.
       Finally, because the trial court suspended imposition of sentence, we need not
determine whether defendant’s sentence would be affected by section 654. (People v.
Wittig (1984) 158 Cal.App.3d 124, 137 [“Because sentence was not imposed on either
defendant, there is no double punishment issue.”].)
C.     JURY INSTRUCTIONS
       Defendant argues that the phrase “temporary physical discomfort,” as used in the
instructions defining tear gas for purposes of stating the elements of former section
12403.7 and section 375, was ambiguous and required clarification. He makes this
argument in light of his defense that the substance he sprayed on the singer was a
combination of fish sauce and perfume rather than pepper spray. Defendant claims the
trial court had a sua sponte duty to clarify the meaning of “temporary physical
discomfort.” Alternatively, he contends his trial counsel provided ineffective assistance
by failing to seek clarification of the phrase.
           1. The Trial Court Had No Sua Sponte Duty to Clarify Its Instruction
        “ ‘[A] trial court must instruct on general principles of law that are . . . necessary
to the jury’s understanding of the case.’ ” (People v. Roberge (2003) 29 Cal.4th
979, 988.) This obligation includes providing appropriate guidance “when a statutory
term ‘does not have a plain, unambiguous meaning,’ has a ‘particular and restricted
meaning’ ([Citation]), or has a technical meaning peculiar to the law or an area of law.”
(Ibid.; see also People v. Estrada (1995) 11 Cal.4th 568, 574.) “[A] claim that a court
failed to properly instruct on the applicable principles of law is reviewed de novo.”
(People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)
       The trial court instructed the jury that, for purposes of section 375 and former
section 12403.7, “[t]ear gas is all liquid, gaseous or solid substance intended to produce
temporary physical discomfort or permanent injury through being vaporized or otherwise
dispersed in the air. [¶] Oleoresin capsicum (pepper spray) is ‘tear gas.’ ” Because both
of the statutes required a finding that the substance defendant used was “tear gas,” the
definition was a general principle necessary to the jury’s understanding. We disagree
with defendant’s claim that the phrase “temporary physical discomfort” is ambiguous,
particularly given the facts of this case.
       Defendant poses a series of rhetorical questions that purport to illustrate the
ambiguity of the phrase “temporary physical discomfort,” asking whether comparatively
minor symptoms such as “temporary olfactory discomfort” from smelling fish sauce
would meet the definition. If the victims of defendant’s attack only suffered this type of
effect, a clarifying instruction might have been in order. However, both the singer and
members of the audience close to the stage experienced a number of more serious
physical symptoms, including skin irritation, breathing difficulties, coughing, and
bloodshot and tearing eyes. Given these symptoms, we are satisfied that the phrase
“temporary physical discomfort” required no further definition and therefore created no
duty on the trial court to provide clarification.
           2. Trial Counsel Was Not Ineffective For Failing to Seek Clarification
       Defendant argues his trial counsel’s failure to seek a clarifying instruction, which
forfeited defendant’s claim on appeal, amounted to ineffective assistance of counsel.
(People v. Campos (2007) 156 Cal.App.4th 1228, 1236 [failure to seek clarification of
legally correct jury instruction in trial court forfeits claim on appeal].) To prevail,
defendant must show his trial counsel’s performance was deficient and that the deficiency
prejudiced defendant. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) To prove
prejudice, defendant must affirmatively show a reasonable probability that, but for his
trial counsel’s errors, the result would have been different. (Id. at pp. 217-218.) A
reasonable probability is one “ ‘sufficient to undermine confidence in the outcome.’ ”
(Id. at p. 218, quoting Strickland v. Washington (1984) 466 U.S. 668, 693-694.) Finally,
“[i]f a claim of ineffective assistance of counsel can be determined on the ground of lack
of prejudice, a court need not decide whether counsel’s performance was deficient.” (In
re Crew (2011) 52 Cal.4th 126, 150, citing Strickland, supra, at p. 697.)
       Defendant’s ineffective assistance claim must fail because he cannot show
prejudice based on his trial counsel’s allegedly ineffective assistance. As discussed
above, both the singer and nearby audience members suffered serious symptoms as a
result of defendant’s attack. We find no reasonable probability that a clarifying
instruction would have caused the jury to determine that the symptoms did not amount to
“temporary physical discomfort.” Because there is no reasonable probability the result of
defendant’s trial would have been different had trial counsel sought and received a
clarifying instruction, defendant’s ineffective assistance claim fails.

                               III.       DISPOSITION
       The judgment is affirmed.
                               ____________________________________
                               Grover, J.




WE CONCUR:




____________________________
Rushing, P.J.




____________________________
Márquez, J.
