Filed 3/18/14 P. v. Phan CA2
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       SECOND APPELLATE DISTRICT

                                                     DIVISION SIX


THE PEOPLE,                                                                2d Crim. No. B245839
                                                                        (Super. Ct. No. KA094441-01)
     Plaintiff and Respondent,                                              (Los Angeles County)

v.

TOAN PHAN,

     Defendant and Appellant.


                   Toan Phan appeals a judgment after conviction by jury of second degree
murder. (Pen. Code, §§ 187, subd. (a), 189.) The jury found true allegations that he
personally and intentionally used and discharged a firearm. (Id., 1203.06, subd. (a)(1),
12022.5, subd. (a), 12022.53, subds. (b), (c) & (d).) The trial court sentenced Phan to 40
years to life in state prison.
                   Phan contends the trial court should have instructed the jury on voluntary
manslaughter, under theories of imperfect self-defense and heat of passion; it did not
sufficiently respond to a jury question; it should have instructed on accident and misfortune;
and it erroneously admitted evidence of his fraudulent financial activities. He also contends
his trial counsel rendered ineffective assistance by not requesting a heat of passion
instruction and not reminding the trial court to give an accident instruction that it said it
would give. We affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
              Phan and Phuc Hong Tina Nguyen were romantic partners from 2007 until
about January 2010. In June 2010, Phan went to Vietnam and married another woman. He
returned on July 10.
              On July 17, 2010, at about 5:00 a.m., Phan called 911 from his apartment and
said, "Two people die here. I shoot, she shoot me, I shoot her." When sheriff's deputies
arrived, Phan was on the floor behind the front door with a gunshot wound through his
chest. Nguyen's body was in the bedroom with a bullet wound in her upper left chest.
              A revolver and a semi-automatic pistol were on the bed near Nguyen. The
bullet inside Nguyen's chest was fired from the revolver. Another bullet found in the
bedroom was also fired from the revolver. A fired cartridge case in the bedroom was from
the pistol. There was a bullet hole in the ceiling above Nguyen and another through the
window blinds.
              Nguyen had a small bruise on the back of her left middle finger and no other
bruises. Her fingernails were unbroken. Nothing in the room appeared to be disturbed or
broken. Nguyen had gunshot residue on both hands.
              An expert testified that the revolver was probably in contact with Nguyen's
skin or clothing when it was fired, because the entry wound had soot around it and the
wound was seared without stippling. The expert testified that the revolver could not
accidentally fire because of built-in safety features. He said that it was "double-action" and
"you have to actually have a deliberate act to pull it, because on double-action mode, it
cannot really have accidental discharge . . . because it takes so much effort to pull all the
way to the rear."
              Phan's handwritten note was in the living room. In a portion addressed to
Nguyen, Phan expressed his love and said, "I only regret one thing, that we cannot become
husband and wife so that we can live the whole life together forever. Live together, the
whole life. So then therefore I would hope for the next life. In case there is a next life, I




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will be doing much better and we will be able to become husband and wife, living together
in the better way."1
                In another portion of the note, Phan wrote to his first wife: "I'm at fault
towards you and my child. Please try to make sure that our child will be successful in life so
that the child will not be in a position like I am."
                Phan wrote to his child, "[W]hen you will be reading those lines, I would be
no longer with you. I hope you will forgive me. I am a father that has not fulfilled his duty
or responsibility. I do not deserve to be your father. Please help your mom for the chores at
home, and be successful in life. Over there in the other world I will be thankful to you."
                Phan wrote to his brother, "Brother Tu, everything that occurred or happened,
it's my fault. Just blame everything on me." He also wrote "to every [person] that would
still be alive after [he] passed away," "Do not worry or do not be bothered by the fact that I
am no longer here anymore. Farewell to everybody or goodbye to everybody."
                Phan testified that he wrote the note during the two days before Nguyen died.
He was feeling depressed and suicidal when he wrote it.
                The trial court admitted the note and evidence of Phan's past financial
misconduct, over defense objection.
                             Evidence of Financial Fraud and Debt
                Phan's brother Tu Phan testified that three or four months before Nguyen was
shot, Tu reported Phan to the police for fraud. Phan obtained a credit card in Tu's name in
2009 without his permission and accumulated about $14,000 to $15,000 in debt. When Tu
first confronted Phan, Phan agreed to pay the debt. But Phan later opened two more
accounts in Tu's name. Phan missed payments and Tu reported him to the police a few
months before Nguyen died. In March or April 2010, Tu spoke to Phan by telephone in
Vietnam. Phan said he was sorry. Tu told Phan to call Detective Reyes of the West Covina
police to talk to him about the police report.
                Detective Reyes testified that Phan called him on July 9, 2010 (eight days
before Nguyen died). Phan told Reyes that he needed a couple of weeks before he could be

1
    Phan wrote the note in Vietnamese. He translated it during his testimony.
                                              3
interviewed about the matter, because he had just returned from Vietnam and needed to
settle some business. Nguyen's mother testified that Phan owed her $2,000. A few days
before Nguyen died, she confronted Phan about the debt.
               The trial court instructed the jury that evidence of Phan's other crimes was
admitted for the limited purpose of proving motive for the charged crime.
                                       Phan's Testimony
               Phan testified that on July 16, 2010, he was depressed because he could not
find a job or make payments on the credit cards he opened in Tu's name. He wrote the note,
and then took out his semi-automatic pistol because he intended to kill himself. He changed
his mind and shot the ceiling. He left the pistol on the floor or on a table. The revolver was
in a drawer under his bed.
               Phan had chest pains, so he went to the hospital. The hospital discharged him,
and Nguyen drove him home.
               On the way back to his apartment, Nguyen was angry about his new wife. In
Phan's bedroom, she demanded $4,600 and became upset with him because he said he did
not have it. Nguyen was sitting on the bed. Phan was standing.
               When Phan turned around, he saw that Nguyen was pointing the revolver at
him, holding it with both hands. He did not see her get it from under the bed.
               Phan said to Nguyen, "You don't know how to use a gun. Don't play with a
gun." They were six feet apart. He moved toward her and said, "Give me the gun." He
"heard a noise, boom, and then [his] chest hurt."
               After Nguyen shot Phan in the chest, he "was still moving forward towards
her." He was "able to hold onto the hands -- hold onto the gun." Nguyen was still sitting on
the bed, and he was standing.
               Phan testified, "I think there was a struggle there. Then prior to me passing
out, the gun was pointing towards her direction. Before I fell--before I fell down and passed
out, I know that I did shoot toward that direction. And I passed out." He did not remember
calling 911.



                                               4
              Phan testified that his past relationship with Nguyen was volatile. They broke
up six or seven times between 2007 and 2010. They argued because Nguyen had a
gambling problem. He said that in 2008 a neighbor called him at work about noise coming
from their home. When he arrived, Nguyen was breaking things. Phan called the police.
When the police arrived, Nguyen stopped.
                                           Instructions
              The trial court instructed the jury on murder in the first and second degree and
self-defense. After an off-the-record discussion, the court told counsel, "I'll also give, based
upon the substantial evidence that has been presented here, accident and misfortune." The
court did not give the instruction.
              The trial court did not instruct on any theory of manslaughter. The court
refused defense counsel's request for a voluntary manslaughter instruction under a theory of
imperfect self-defense, because there was no substantial evidence that Phan's belief in the
need of self-defense, although actual, was unreasonable. "[B]ased upon the defendant's own
statements under oath, it appears that the crime--or that the homicide, if not murder, was
justifiable--or excusable, that is, under accident and misfortune. Consequently, I am going
to give that instruction. However, I am also giving actual self-defense instructions based
upon the 911 call which I find has substantial evidence warranting a self-defense. 'She shot
me. I shot her.'"
              Defense counsel did not request a voluntary manslaughter instruction based on
heat of passion or sudden quarrel. The prosecutor and defense counsel each said they had
no objections to the trial court's proffered instructions.
              The prosecutor argued that Phan shot Nguyen first and then shot himself, and
that first degree murder was the only correct verdict under the evidence. Defense counsel
argued Phan acted in self-defense. He said that Nguyen shot Phan first and "[Phan] was
able to turn the gun around and shoot at her. Any reasonable person would have done the
same thing that Mr. Phan did."




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                                 Jury Request for Clarification
              The jurors wrote a note during deliberations: "We need more clarification on
1st degree murder. In [premeditation] how the term[s] 'Rash impulse/Heat of passion"
effect or impact . . . 1st degree murder. 'What qualifies as [premeditation]. What to be the
time interval for [premeditation] [sic].'" The court re-read CALJIC No. 8.20 concerning
premeditation, ". . . The true test is not the duration of time, but rather the extent of
reflection. A cold, calculated judgment and decision may be arrived at in a short period of
time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is
not deliberation and premeditation as will fix an unlawful killing as murder of the first
degree." Soon afterward, the jury returned a verdict of second degree murder. It found true
allegations that Phan personally used and personally and intentionally discharged a firearm.
                                          DISUSSION
                              Voluntary Manslaughter Instruction
              A trial court must instruct on general principles of law relevant to the issues
raised by the evidence. (People v. Booker (2011) 51 Cal.4th 141, 181.) "It is error for a
trial court not to instruct on a lesser included offense when the evidence raises a question
whether all of the elements of the charged offense were present, and the question is
substantial enough to merit consideration by the jury." (Ibid.) Voluntary manslaughter is a
lesser-included offense of murder. (Ibid.) We independently review whether a trial court
should have instructed concerning a lesser-included offense. (Ibid.) We must resolve
doubts regarding the sufficiency of evidence to warrant a lesser-included offense instruction
in favor of the defendant. (People v. Tufunga (1999) 21 Cal.4th 935, 944.)
              There was no substantial evidence of imperfect self-defense. Murder may be
reduced to voluntary manslaughter under a theory of imperfect self-defense. "Imperfect
self-defense is the killing of another human being under the actual but unreasonable belief
that the killer was in imminent danger of death or great bodily injury." (People v. Booker,
supra, 51 Cal.4th 141, 182.) "Such a killing is deemed to be without malice and thus cannot
be murder." (Ibid.)



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              Where there is evidence of actual belief in the need for self-defense, and there
is an issue as to the reasonableness of that belief, the trial court should instruct on imperfect
self-defense. (People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262, 1263-1264
[testimony and physical evidence could support a finding that the defendant unreasonably
believed the victims shot at him when someone else actually shot at him].) But where, as
here, the evidence does not raise an issue concerning reasonableness, it is not error to refuse
the instruction, even if the court instructs on self-defense. (People v. Valenzuela (2011) 199
Cal.App.4th 1214, 1231-1232; People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1270
["[J]ust because the court permitted instructions on perfect self-defense [did] not mean that
substantial evidence supported the giving of an imperfect self-defense instruction"].)
              Phan testified that Nguyen pointed the revolver at him and shot him in the
chest. If true, there was no issue concerning the reasonableness of his belief that he was in
imminent danger of death or great bodily injury at Nguyen's hands. This case is similar to
People v. Valenzuela, supra, 199 Cal.App.4th 1214, in which the defendant testified that he
believed people were shooting at him. There was no issue concerning the reasonableness of
his belief that he was in imminent danger and the court did not err when it refused to instruct
on imperfect self-defense. "'Where, as here, the defendant's version of events, if believed,
establishes actual self-defense, while the prosecution's version, if believed, negates both
actual and imperfect self-defense, the court is not required to give the [imperfect self-
defense] instruction.'" (Id. at p. 1232, quoting People v. Szadziewicz (2008) 161
Cal.App.4th 823, 834.) Imperfect self-defense was not supported under any version of the
evidence here.
              There was also no substantial evidence of heat of passion or sudden quarrel.
The trial court is required to instruct on all theories of a lesser-included offense that find
substantial support in the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.) The
crime of murder may be reduced to voluntary manslaughter if the victim engaged in
provocative conduct that would cause an ordinary person with an average disposition to act
rashly or without due deliberation and reflection. (People v. Enraca (2012) 53 Cal.4th 735,
759.) "Objectively, the victim's conduct must have been sufficiently provocative to cause an

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ordinary person of average disposition to act rashly or without due deliberation and
reflection." (Ibid.) Subjectively, the accused must be shown to have killed while under the
actual influence of a strong passion induced by such provocation. (Ibid.) "When there is no
evidence the offense committed was less than that charged, the trial court is not required to
instruct on the lesser included offense." (People v. Booker, supra, 51 Cal.4th 141, 181.)
              Phan testified that he was suicidal and depressed, but Nguyen did not provoke
this condition and his feelings persisted over a period of days before he shot her. He
testified that she was "angry" and "mad" that he was married and that he would not give her
money, but he did not describe himself as angry or upset. He said she shot at him, but he
described a rational response. A heat of passion instruction is not required every time that
"a defendant is attacked and consequently fears for his life." (People v. Moye (2009) 47
Cal.4th 537, 555.) There was no circumstantial evidence that Nguyen so provoked Phan
that "emotion . . . obliterate[d] [his] reason." (People v. Johnston (2003) 113 Cal.App.4th
1299, 1311.) "[I]n a murder case, unless the People's own evidence suggests that the killing
may have been provoked or in honest response to perceived danger, it is the defendant's
obligation to proffer some showing on these issues sufficient to raise a reasonable doubt of
his guilt of murder." (People v. Rios (2000) 23 Cal.4th 450, 461-462.) The substantial
evidence requirement applies to heat of passion. (People v. Flood (1998) 18 Cal.4th 470,
481-482 ["Of course, if the asserted error consists of a failure to instruct on a lesser included
offense, there must have been substantial evidence from which a jury reasonably could
conclude that the defendant was guilty of the lesser offense, but not the greater offense"].)
No substantial evidence supported a voluntary manslaughter instruction here and counsel
did not render ineffective assistance when he did not request a heat of passion instruction.
                                  Response to Jury Question
              Phan contends that the trial court should have instructed on voluntary
manslaughter in response to the jury's questions. We disagree.
              The jury asked for clarification "on 1st degree murder," how the terms "heat of
passion" and "rash impulse" in CALJIC No. 8.20 (first degree deliberate and premeditated
murder) impact the question of degree, and what time interval qualifies as premeditation.

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Counsel did not offer a response and did not object when the trial court said it would not
clarify the terms or give a voluntary manslaughter instruction. It is apparent from the
verdict that the jury decided Phan killed Nguyen intentionally, but did not premeditate the
killing.
              Counsel did not render ineffective assistance. The terms "heat of passion" and
"rash impulse" in the premeditation instruction do not ordinarily require further definition
and do not require instructions on voluntary manslaughter if the evidence does not support
that theory. (People v. Cole (2004) 33 Cal.4th 1158, 1217-1218.) The evidence did not
support a heat of passion theory.
                             Accident and Misfortune Instruction
              The trial court indicated it would give an accidental instruction, but did not.
The omission was not error. Counsel did not request the instruction. The court has no sua
sponte duty to instruct on accident. (People v. Anderson (2011) 51 Cal.4th 989, 997-998.)
Counsel’s performance was not deficient because the evidence did not support an accident
instruction and counsel made a reasonable tactical decision to pursue a theory that was
inconsistent with accident. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.)
              The evidence was overwhelming that the revolver could not be accidentally
discharged. Phan testified that he grabbed Nguyen's hands and the revolver, but he did not
testify that it accidentally discharged. He said he turned the revolver toward her and said, "I
know that I did shoot toward that direction." The defense theory was inconsistent with
accidental discharge. Counsel argued, "[Phan] was able to turn the gun around and shoot at
her. Any reasonable person would have done the same thing that Mr. Phan did." Even if an
accident instruction were supported by the evidence, its omission would be harmless
because the jury found that Phan intentionally discharged the firearm.
                           Evidence of Financial Fraud and Debt
              Phan contends that evidence that he opened credit cards in his brother's name
and accumulated debt was irrelevant because it had nothing to do with the homicide charge
and it unfairly depicted him as a person with a criminal disposition. We disagree. The
evidence was admissible to prove motive.

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              Evidence of prior bad acts is admissible to prove motive. (Evid. Code,
§ 1101, subd. (b).) We review the decision to admit the evidence for abuse of discretion.
(People v. Lewis (2001) 25 Cal.4th 610, 637.) The trial court did not abuse its discretion
when it concluded that the evidence was relevant to prove that "since [defendant] could not
have the victim in this life, he would have the victim in the next" and that "the [world was]
crashing down upon the defendant being discovered in a crime, apparently the victim in this
matter not being receptive to defendant's romantic impulses; and that defendant wanted to
take his [own] life." Credit card fraud is not similar to murder, but similarity was irrelevant
to the inference to be drawn. (People v. Thompson (1980) 27 Cal.3d 303, 319, fn. 23,
overruled on another ground in People v. Scott (2011) 52 Cal.4th 452, 471-472.) Motive
can be proven by dissimilar crimes. (People v. Walker (2006) 139 Cal.App.4th 782, 804.)
              Phan points out that evidence of a defendant's poverty or indebtedness is
generally inadmissible to prove motive to commit theft because the evidence may put a poor
person under unfair suspicion. (People v. McDermott (2002) 28 Cal.4th 946, 999; People v.
Hogan (1982) 31 Cal.3d 815, 854, overruled on another ground in People v. Cooper (1991)
53 Cal.3d 771, 836.) But here the evidence did not raise such concerns because there was a
direct link between Phan's financial fraud and the state of mind that led him to shoot himself
and Nguyen. The trial court did not err when it admitted the evidence to prove motive.
                                      Cumulative Error
              We reject Phan's contentions and conclude there was no cumulative error.
                                        DISPOSITION
              The judgment is affirmed.
              NOT TO BE PUBLISHED.


                                           GILBERT, P.J.
We concur:


              YEGAN, J.


              PERREN, J.
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                                   Ronald S. Coen, Judge

                            Superior Court County of Los Angeles

                            ______________________________


             Lynda A. Romero, under appointment by the Court of Appeal, for Defendant
and Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Linda C. Johnson,
Supervising Deputy Attorney General, Blythe J. Leszkay, Deputy Attorney General, for
Plaintiff and Respondent.




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