P. v. Le

Filed 10/16/06 P. v. Le CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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A confrontation in Stockton between two rival Southeast Asian gangs ended with shooting that killed 14-year-old Noro Choun. Defendants Hong Le, Khammay Keomanivong, and Manora Ek were convicted by a jury of first degree murder with two special circumstances, six counts of attempted murder, and shooting from a motor vehicle, all with gang and firearm and street terrorism enhancements. Each defendant was also convicted of a separate felony. Sentenced to prison terms that include life without the possibility of parole, all three defendants appeal. They raise a multitude of contentions, including challenges to the selection of the jury, prosecutorial misconduct, ineffective assistance of counsel, violation of speedy trial rights, insufficient evidence of a special circumstance and enhancement, instructional error, and sentencing error.

As to defendant Le, we reverse the judgment due to prosecutorial misconduct. The prosecutor withheld from the defense statements of Le that undercut his alibi defense. While these statements were excluded from trial as a sanction for violation of the discovery law, the late disclosure sabotaged the defense, depriving it of the opportunity to design an intelligent litigation or plea strategy that responded to evidence of defendant’s statements. Although the late disclosure was unlikely to affect the outcome of the trial, its effect on preparation for trial prejudiced Le’s substantial rights, requiring reversal under a line of federal cases.

As to Keomanivong and Ek, we find error only in sentencing. We modify the judgments as to sentencing and otherwise affirm.

FACTS

Although the many witnesses gave inconsistent stories of the events the day of the shooting, the basic facts of the shooting were largely uncontested. On the afternoon of March 17, 2002, a large number of members of the Asian Streetwalkers gang (ASW), some from Oakland, were gathered outside 726 Bedlow Street in Stockton. There was a party going on, with people drinking alcohol and smoking marijuana. Soeuth Pak, also known as Gumby, lived at 726 Bedlow. The Bedlow area had a lot of gang activity. There had been six shootings and four deaths.

Veasna Oth, called Sna or Dome, had been a member of the ASW, was now associating with the Asian Boyz gang (ABZ). He wanted to get “jumped out,” a gang ritual that required him to fight members of his old gang. Three or fours carloads of members of ABZ arrived on Bedlow Street. Oth got out and asked to fight the biggest member of ASW. Kimsart Oeur, who was six feet tall and weighed 241 pounds, stepped forward. Oeur, whose nickname was Mao, fought with Oth. Oeur won the fight.

As Oth and his friends returned to their cars, ASW members yelled insults and the two groups exchanged challenges. At some point, either before or during the fight, some ABZ members were seen getting guns out of the trunk of one of the cars. As the cars with the ABZ members began to leave the area; they stopped and began shooting. Gumby fired a shotgun, as did another ASW member. In statements to police, defendants Ek and Keomanivong claimed ASW shot first. A van and several cars were hit with bullets.

In the hail of gunshots, 14-year-old Noro Choun was struck in the back. He was taken to the hospital where he died from his gunshot wound.

The police found 27 shell casings and one live round at the scene. A ballistics expert determined four firearms were involved: 2 nine-millimeter handguns, an SKS rifle and a AR-15 rifle. A nine-millimeter Beretta, identified as the gun that killed Choun, was found in Keomanivong’s car and a .22 caliber revolver was found in a search of his bedroom. Shotgun shells and a box of nine-millimeter bullets were found in Ek’s home.

Police questioned the ASW members present that day; many admitted they originally lied to the police. Several ASW members testified they saw Le, also known as Blends, shoot that day. Chanratha Chhun, who was originally a codefendant until he accepted a negotiated plea, told the police Le was there that day. At trial, Chhun testified Le was not there. He said the first shots he heard were from a shotgun.

Chhun also testified Ek drove the lead car in the ABZ caravan. Ek admitted he drove that car during his interview with the police.

K.O., a 14-year-old girl who was Keomanivong’s neighbor, testified she saw Keomanivong get picked up by a light blue Honda. She saw him at the fight and saw him shoot.^[1] During his interview with the police Keomanivong admitted he went to see the fight; he went with his cousin, David Inthirath. Inthirath, called Goofy, drove a light blue Honda and was identified by several witnesses as being at the shooting.^[2] When police searched Inthirath’s house they found shell casings in his bedroom and a nine-millimeter Luger. Keomanivong told the police he had a .22 caliber gun in his pocket during the shooting, but did not shoot it. He said he bought a nine-millimeter gun the day after the shooting.

John Beardsley, a gang expert, testified there were 36 validated Southeast Asian gangs in Stockton. The Asian Boyz had approximately 62 members and was one of, if not the most, violent of the Asian gangs. ABZ was aligned with the Crips and the color blue. Most members were Cambodian, although Le is Vietnamese. There were currently about 37 members of the Asian Streetwalkers. ASW is also aligned with the Crips; its members are Cambodian, with some Laotian. The primary rival of ASW is ABZ; their rivalry began in September 2001. A third gang, Asian Gangsters, is also aligned with the Crips; its members were primarily Laotian. It was fairly common for Southeast Asian gangs to join together to commit crimes.

Based on prior contacts, gang tattoos, and admissions, Beardlsey gave his opinion as to the gang membership of the defendants. Le and Ek were members of the Asian Boyz; Keomanivong was a member of the Asian Gangsters. Keomanivong told a detective that most other members of the Asian Gangsters were gone; they had moved or were locked up.

Given a hypothetical based on the facts of the case, Beardsley testified in his opinion the shooting was gang related and for the benefit of the Asian Boyz. It showed they were armed and not afraid to go into a rival’s territory and challenge the rival. Without some form of retaliation after Oth lost the fight to Oeur, ABZ would have lost face and lost credit among other gangs. Beardsley testified if three or four car loads of gang members with guns drove into a rival’s turf looking for a fight, he would expect more than a fistfight to occur.

Defendant Le testified in his defense at trial. He claimed he was not present at the shooting; he was with his girlfriend. He also claimed he stopped being a member of ABZ three months before the incident.

Defendants Ek and Keomanivong relied on self-defense, based on their contention that ASW fired the first shots.

After two days of deliberation, the jury convicted defendants of all charged offenses. Defendants were convicted of first degree murder (Pen. Code, § 187), with two special circumstances, discharging a firearm from a motor vehicle with the intent to inflict death (Pen. Code, § 190.2, subd. (a)(21)), being an active participant in a criminal street gang and carrying out the murder to further the activities of the gang (Pen. Code, § 190.2, subd. (a)(22)), and six counts of attempted murder (Pen. Code, §§ 187/664) against six identified ASW members. As to all of these counts, the jury found two firearm enhancements under Penal Code section 12022.53, subdivisions (c) and (d), and a gang enhancement under Penal Code section 186.22, subdivision (b)(1). All defendants were also convicted of discharging a firearm from a motor vehicle (Pen. Code, § 12034, subd. (c)), with gun use (Pen. Code, § 12022.53, subd. (d)) and gang (Pen. Code, § 186.22, subd. (b)(1)) enhancements, and street terrorism (Pen. Code, § 186.22, subd. (a)).

In addition, Le was convicted of possession of a firearm by a restricted person (Pen. Code, § 12021, subd. (e)); Keomanivong was convicted of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)); and Ek was convicted of permitting another to shoot from a motor vehicle (Pen. Code, § 12034, subd. (b)).

DISCUSSION

I. Jury Issues

A. Elimination/Restriction of Voir Dire

Prior to trial, the prosecutor indicated he intended to use a questionnaire in jury selection. The trial court told the parties that since there were three defendants and use of a juror questionnaire was so time consuming, they had a choice: they could use a questionnaire, in which case no oral voir dire would be allowed, or they could select the jury through oral voir dire, with time limits. The prosecutor objected to having to choose and asked why. The court explained the reason was time. He thought a juror questionnaire was “a big waste” of time. The prosecutor continued to object, claiming it was “not fair.” The trial court believed juror questionnaires should be reserved for unique cases; the court was firm that if a questionnaire was used, he would not voir dire any potential jurors.

The defendants all wanted to use a questionnaire. Keomanivong’s counsel suggested the questionnaire be used for background and voir dire be permitted on the law. The court told the prosecutor challenges for cause would be based solely on the questionnaire, without further voir dire. The court would allow some questions to rehabilitate a potential juror.

After the questionnaires were completed by prospective jurors, the court maintained its position of no voir dire. The prosecutor objected, noting some questions were left blank. The court responded that was what peremptory challenges were for. Counsel should make their decision whether to use a questionnaire based on whether people are smart enough to complete it.

Prospective jurors were given a 12-page questionnaire to complete. The questionnaire asked for background information about the juror’s age, marital status, employment, military service, education, and experience with the legal system. It asked about prior jury service and law enforcement contacts. There were a series of questions concerning knowledge of and opinions about gangs. It then asked about the juror’s knowledge of the case. The final questions addressed opinions about certain legal principles, including aiding and abetting, self-defense, the presumption of innocence, bias, and firearms.

Defendants contend the trial court erred in eliminating or restricting oral voir dire. The Attorney General responds that defendants’ failure to object below bars the contention on appeal. It is true that defendants did not voice objections to the trial court’s procedure for jury selection at the time. Ek raised the restriction on voir dire as one ground for his motion for a new trial. The prosecutor, however, repeatedly raised objections to the elimination of oral voir dire and the trial court overruled his objections. There is no basis in the record for believing an objection by defense counsel would have fared better. Failure to object does not bar appellate review of an issue when an objection would have been futile. (People v. Hill (1998) 17 Cal.4th 800, 820; People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648.) Since the trial court proceeded despite vigorous objection by the prosecution, we review defendants’ contention.

Code of Civil Procedure section 223 addresses the examination of prospective jurors in criminal cases. It provides that the court shall conduct the initial examination and the court may limit the oral and direct questioning of prospective jurors by counsel.^[3] (Code Civ. Proc., § 223.) “Examination of prospective jurors shall be conducted only in aid of the exercise of challenges for cause.” (Ibid.) The trial court’s exercise of its discretion in conducting voir dire “shall not cause any conviction to be reversed unless the exercise of that discretion has resulted in a miscarriage of justice, as specified in Section 13 of Article VI of the California Constitution.” (Ibid.)

A juror questionnaire may be used for assisting the voir dire process. (Code Civ. Proc., § 205, subd. (c).)

Voir dire, the legal term describing the process of jury selection, “is itself a combination of two French verbs meaning

‘to see’ and ‘to say.’ [Citation.]” (People v. King (1987) 195 Cal.App.3d 923, 932.) The importance of observing prospective jurors as they answer questions is well established. “Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored. Without an adequate voir dire the trial judge’s responsibility to remove prospective jurors who will not be able impartially to follow the court’s instructions and evaluate the evidence cannot be fulfilled. [Citations.]” (Rosales-Lopez v. United States (1981) 451 U.S. 182, 188 [68 L.Ed.2d 22, 28].) The selection of jurors is often based on their demeanor and response to questions. (Ibid.; People v. Tuilaepa (1992) 4 Cal.4th 569, 587; People v. Wheeler (1978) 22 Cal.3d 258, 276; see also Mu’min v. Virginia (1991) 500 U.S. 415, 424 [114 L.Ed.2d 493, 505].)

One potential problem that oral voir dire can screen is illustrated in this case. At least one prospective juror had difficulty understanding spoken English. Although this prospective juror noted the problem on the questionnaire, there could be situations where a prospective juror is reluctant to disclose his unfamiliarity with spoken English and the difficulty would not be noticed without oral voir dire.

Selection of a jury solely through the use of a written questionnaire, without any oral voir dire, raises serious questions. For example, in People v. Stewart (2004) 33 Cal.4th 425, 440, a capital case, the trial court excused five potential jurors for cause over defense objection based solely on their answers to a questionnaire, without an opportunity for follow-up questions. The California Supreme Court found the excusals were error that required the reversal of defendant’s death sentence. (Id. at pp. 454-455.) The court noted the resources available to assist the trial court in properly conducting voir dire “proceed on the assumption that, except for prospective jurors who both parties stipulate should be excused for cause [citation], a juror questionnaire will not obviate the need for oral voir dire, but instead merely will shorten the time necessary to be spent on oral voir dire. [Citation.]” (Id. at p. 450, fn. 14, italics in original, but see People v. Avila (2006) 38 Cal.4th 491, 531 [holding excusal for cause based solely on written questionnaire may be permissible in capital case].)

If the trial court had conducted jury selection based solely on the written questionnaire, as it initially stated it would, we might have to find reversible error. Fortunately, we need not decide that question because that is not what happened in this case. After a challenge for cause, the court allowed the opposing party to rehabilitate the challenged prospective juror and allowed questions concerning ambiguous or troubling answers on the questionnaire. Thus, there was extensive oral voir dire by counsel of some prospective jurors.

We turn now to defendants’ specific claims of error. Initially, we note defense counsel did not exhaust their peremptory challenges or object to the jury as constituted, nor did they justify their failure to do so. Therefore, they may not challenge on appeal the trial court’s denial of any challenge for cause. (People v. Lewis (2001) 25 Cal.4th 610, 634; People v. Waidla (2000) 22 Cal.4th 690, 715.)

Le contends a substantial number of juror questionnaires provided insufficient information on which to base intelligent decisions to challenge the prospective jurors. Le fails, however, to cite any instance in which he wanted to ask follow-up questions and the trial court precluded him from doing so. We recognize that when voir dire is so inadequate as to prevent intelligent exercise of challenges, the use of peremptory challenges cannot cure the harm, so exhaustion of peremptory challenges is not required to raise the issue on appeal. (People v. Bolden (2002) 29 Cal.4th 515, 537-538.) In this case, the trial court did allow follow-up questions when requested. Therefore, we cannot say the jury selection process was completely inadequate. Le must show he was denied the opportunity for adequate voir dire and he fails to do so.

Ek’s argument is more detailed, citing specific answers from several prospective jurors he considers troubling. The record does not demonstrate that Ek’s trial counsel shared the same concern as Ek’s appellate counsel. As to those prospective jurors who were not seated, Ek fails to show any prejudice from the allegedly inadequate voir dire. As to those prospective jurors who were actually seated as jurors, Ek fails to show trial counsel raised any concern about their answers or requested any follow-up questions. There was a challenge to juror No. 9, whose answers appeared to assume defendants were gang members. The trial court admonished the prospective jurors that gang membership remained something to be proven. The court denied Le’s challenge to juror No. 10, accepting her claim she could give full attention to the trial despite her personal problems. This juror was later excused. Two alternate jurors who were later seated as jurors were subject to oral voir dire. Ek has failed to show the trial court denied any request for oral voir dire of any prospective juror who was later seated as a juror.

While the trial court controls the manner of jury selection, at a minimum defendant and his counsel should be given the opportunity to see the prospective jurors respond to questions. Here the trial court afforded that opportunity only as to some prospective jurors, to rehabilitate those challenged for cause or to clarify ambiguous or troubling answers on the questionnaire. We do not condone such a radical departure from the usual voir dire in a special circumstance murder case. Nonetheless, given that voir dire is only for the purpose of exercising challenges for cause (Code Civ. Proc., § 223), only the prosecutor objected to the trial court’s conduct of voir dire, and defendants have failed to show their request to voir dire any prospective juror who actually sat was denied, we find no reversible error.

B. Failure to Excuse Juror No. 12

During trial, the prosecutor reported to the court on a “juror problem.” Juror No. 12 and his girlfriend were at a restaurant or bar and got into a fight. The fight continued at home; the girlfriend threw things and pulled the phone out. The police responded and took statements. The district attorney sent the case back for further investigation. The trial court was concerned that juror No. 12 might feel either beholden to or mad at the district attorney depending on what happened; the court wanted to keep the juror out of the district attorney’s office. The parties agreed the court needed to talk to juror No. 12.

The court told the juror the matter was under investigation and the most important thing was that it not affect his judgment in this case. The juror explained his girlfriend was arrested; he had posted bail for her, but they were living apart and had not reconciled. He did not intend to pursue the complaint. They had both been drinking and things got out of hand. Neither he nor his girlfriend told the truth and he wanted the case dropped.

Le made a motion to excuse juror No. 12 because he was a witness in a criminal case and he had admitted making false statements to the police. Ek and Keomanivong agreed the juror was compromised. The prosecutor said they were speculating; he preferred to wait and see what happened. Le noted that if there were more alternates, there would be no discussion. The court agreed, but there was only one alternate left. The court decided to follow the prosecutor’s suggestion and let the matter run its course. If something happened, they could revisit the matter.

Le argued this case involved witnesses who had changed their story and the prosecutor’s argument that such witnesses should be believed would resonate with juror No. 12 because “I’ve sinned, too, brother.” He argued keeping juror No. 12 violated due process.

The court decided to wait and admonished the juror not to discuss the matter with the other jurors. Towards the end of the trial, the court raised the matter. There was no news on the case of the juror’s girlfriend and juror No. 12 remained on the jury.

Ek’s motion for a new trial was based, in part, on the failure to remove juror No. 12.

All defendants contend the trial court erred in failing to excuse juror number 12 because he had lied to the police and was entangled with the district attorney’s office.

Penal Code section 1089 provides in part: “If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, . . . the court may order the juror to be discharged. . . .” “‘Before an appellate court will find error in failing to excuse a seated juror, the juror’s inability to perform a juror’s functions must be shown by the record to be a “demonstrable reality.” The court will not presume bias, and will uphold the trial court’s exercise of discretion on whether a seated juror should be discharged for good cause under section 1089 if supported by substantial evidence. [Citation.]’ [Citations.]” (People v. Jablonski (2006) 37 Cal.4th 774, 807.) The record does not show as a demonstrable reality that juror No. 12 was unable to fulfill his obligations as a juror.

Le relies on cases where a juror lied to get on and stay on the jury, particularly Dyer v. Calderon (9th Cir. 1998) 151 F.3d 970 (Dyer). We find Dyer distinguishable. In Dyer, during voir dire a juror failed to disclose the killing of her brother that was similar to the crime being tried after she saw other jurors disclose lesser crimes and be dismissed. Later, when questioned about her brother’s death, she lied and pretended his death was an accident. From these responses the reviewing court drew the inference that the juror “lied to preserve her status as a juror and to secure the right to pass on Dyer’s sentence.” (Id. at p. 982.) The court found the juror’s repeated lying was incompatible with the truth-seeking process of a trial. (Id. at p. 983.) The magnitude of her lies exposed a rare case of presumed juror bias. (Id. at p. 984.)

A far different situation is presented here. Although juror No. 12 apparently did not tell the truth to the police when they arrested his girlfriend, later, when sober and not fighting, he was remorseful and wanted to set the record straight. His misstatements had no relationship to the trial on which he was a juror and did not show the contempt for the process so evident and disturbing in Dyer, supra, 151 F.3d 970. Nor did he attempt to cover up his falsehoods; he was honest (and chagrined) when questioned by the court.

Keomanivong relies on cases where a juror was involved with the district attorney’s office or charged with a crime. In People v. Farris (1977) 66 Cal.App.3d 376, 385, a juror was dismissed after he was in custody on a felony charge. The appellate court found good cause for the dismissal. The nature and extent of the charges against the juror, his attitudes evinced towards the police, and his concealment of his past and present scrapes with the law on voir dire showed his unfitness to serve as a juror. (Id. at pp. 386-387.) In In re Devlin (1956) 139 Cal.App.2d 810, at page 813, overruled on another point in Larios v. Superior Court (1979) 24 Cal.3d 324, 333, the court held where a juror in a criminal case is charged with a crime and expresses the desire to be relieved, the trial court has discretion to determine there is good cause to excuse the juror.

This case is more similar to People v. Holt (1997) 15 Cal.4th 619. In Holt, a juror’s son was arrested for felony assault. On appeal, defendant contended the juror should have been excused because he might have had some undisclosed liability in the incident or have harbored bias. The high court disagreed, finding the defense concerns that the juror was biased or hoped to curry favor with the prosecution were speculation. (Id. at pp. 658-659.) Although Holt is distinguishable because there the defense did not seek to excuse the juror at trial, it is on point that pure speculation will not show a “demonstrable reality” sufficient to overturn the trial court’s discretion in deciding whether to excuse a seated juror. (Id. at p. 659.)

Because defendants have failed to show as a “demonstrable reality” that juror No. 12 could not perform the functions of a juror, their contention that he should have been excused fails.

II. Prosecutorial Misconduct

A. Discovery Violations

1. Le

Discovery was a contentious issue throughout the trial; the prosecution was ordered to turn over all required discovery. When the prosecution called Vy Voueth to testify, it was discovered that the defense had no transcript of his statement, which was in Cambodian. The cross-examination of prosecution witness K.O. was delayed because the prosecution did not give a transcript of her interview to defense counsel. The biggest issue about discovery arose when defendant Le was testifying.

Le testified to an alibi defense, that he was with his girlfriend at the time of the shooting.^[4] During cross-examination the prosecutor asked Le if he had discussed his alibi with his girlfriend. He asked if Le had sent her letters telling her what to say when she testified. Le responded no to these questions. During a bench conference the prosecutor revealed that Le’s mail and visits had been monitored. The prosecutor had a letter Le wrote to Linda Vongdeng on April 6, 2002. In the letter Le wrote: “That day I was at Oak Park playing basketball, but Dome and them other guys did it. Remember the story. You pick me up at Biggie[‘s] house on your 30-minute break then went to get your cake, went back to your workplace and wait until you got off. Then I told you to drop me off at Oak Park. Sunday I called you at Miuh’ house. Then you picked me up on your 30-minute break. Then I waited for you inside your car. Then we left to my house after when you got off work. That’s all you have to say and remember. You don’t got to say shit after that.” There were also three tapes of Vongdeng’s visits with Le that included similar statements of going over the story.

Defense counsel indicated he did not know about the letter or tapes and accused the prosecutor of sandbagging. He asked for an assignment of misconduct by the prosecutor and a mistrial. The prosecutor responded he had not intended to use this material until Le testified he never discussed his alibi with anyone. The trial court retorted, “I don’t think you can hold back on stuff like that and pull it out at the trial, unless you can think of some exception to that rule. I can’t.”

The prosecutor then complained he had not received discovery from Le about alibi witnesses. The court explained that a discovery violation by one side did not excuse a discovery violation by the other. “They don’t balance out that way.” Defense counsel again asked for a mistrial and to refer the prosecutor to the state bar for misconduct. The court ruled the prosecutor could not use the evidence that had not been disclosed, but denied a mistrial, finding there was no prejudice.

Keomanivong’s counsel asked if there was other discovery showing his client wrote letters from jail. The court repeated that counsel were required “to exchange documents like this.”

Le’s counsel asked for “[an] ironclad ruling” that the prosecution could not use the letter to Vongdeng. The court indicated, “I don’t think it can be,” but declined to give a final ruling, stating, “let’s cross the bridge when we need to.” There was no further questioning of Le.

After the brief testimony of another witness, Keomanivong again raised the issue of further discovery. Keomanivong was considering whether to testify and counsel asked whether the prosecutor had any discovery “such as he presented this morning” that involves Keomanivong. The prosecutor replied, “Not that I intend to give, in light of the court’s ruling.”

Le did not call Vongdeng or any of his family to corroborate his alibi. Keomanivong did not testify.

In closing argument, the prosecutor argued Le’s counsel indicated in his opening statement that he would call a number of people to prove he was not there.^[5] Those people did not testify, the prosecutor argued, so defense counsel did not back up what he said in opening statement. In rebuttal argument, the prosecutor returned to Le’s failure to call alibi witnesses, “wouldn’t you think that a truly innocent man would do everything in his power, faced with this crisis, the crisis that I’m sure that’s the biggest crisis of his 21-year-old life, you would do everything you could to get every person in court who could verify your whereabouts that day.”

After the verdicts were returned, Le moved for a new trial based on prosecutorial misconduct, including withholding the letter to Vongdeng. Counsel argued if he had known about the letter, and determined it was true, he would have urged Le to consider the offer of 31 years. Counsel would not call witnesses if the effect was to support perjury. If counsel had known about the letter, he would have modified the defense. The court denied the motion for a new trial.

Le contends the prosecution ambushed the defense by withholding written and taped statements by Le until he testified. The disclosure of those statements gutted his alibi defense. Le contends the prosecutor’s misconduct violated California’s discovery statute and constituted a denial of due process, which requires the remedy of reversal.

Penal Code section 1054.1, subdivision (b) requires the prosecuting attorney to disclose to the defendant or his attorney all statements of all defendants that are in the possession of the prosecuting attorney or known to be in the possession of the investigating agencies. Under the Evidence Code, a “statement” includes an oral or written verbal expression. (Evid. Code, § 225, subd. (a).)

On appeal the Attorney General assumes the required discovery of “statements of all defendants” includes the letter, but urges the point is arguable.^[6] Below, the prosecutor argued the letter was not a statement of defendant and did not have to be disclosed to the defense. Since the letter, and the tapes, were written and oral verbal expressions of defendant Le and in the possession of the prosecution, they should have been disclosed to the defense. (People v. Jackson (2005) 129 Cal.App.4th 129, 168-172 [prosecutor must disclose all statements of defendant intercepted on a wiretap].)

“It is axiomatic that a trial is a search for the truth. [Citation.] Procedural rules, including those of discovery, are designed to ensure that the search is fair, reasonably pursued, and based on reliable information. The rationale behind California’s discovery statute is that neither side should be allowed to engage in, or be subjected to, a trial by ambush. [Citation.]” (People v. Bell (2004) 118 Cal.App.4th 249, 256.)

In arguing for reversal, Le relies on a number of federal cases in which a new trial was ordered after the prosecutor withheld evidence from the defense. Federal courts find a violation of discovery rules warrants reversal of a conviction only if the defendant shows prejudice to a substantial right. (United States v. Camargo-Vergara (11th Cir. 1995) 57 F.3d 993, 998; United States v. Noe (11th Cir. 1987) 821 F.2d 604, 607.) “Substantial prejudice exists when a defendant is unduly surprised and lacks an adequate opportunity to prepare a defense, or if the mistake substantially influences the jury.” (United States v. Camargo-Vergara, supra, at p. 998.)

In United States v. Padrone (2nd Cir. 1969) 406 F.2d 560, a narcotics violation conviction was reversed because the prosecution, through inadvertence, failed to disclose to the defense, as ordered by the court, a statement from defendant taken by an Assistant United States Attorney. At trial defendant denied any connection with the narcotics sale. On cross-examination, the prosecutor asked questions based on defendant’s statement, in which he provided information concerning the source of the cocaine. The defense objected and the court forbad further use of the statement, but did not strike the questions based on it. The Second Circuit reversed. “We believe that noncompliance with an order to furnish a copy of a statement made by the defendant is so serious a detriment to the preparation for trial and the defense of serious criminal charges that where it is apparent, as here, that his defense strategy may have been determined by the failure to comply, there should be a new trial.” (Id. at p. 561.)

In Camargo-Vergara, defendant was charged with conspiracy to import and distribute cocaine. His trial strategy emphasized his statements that he wanted nothing to do with the cocaine offered to him. During direct examination of a DEA agent, the prosecutor elicited that defendant had touched the kilos and said “they were strange.” (United States v. Camargo-Vergara, supra, 57 F.3d at p. 998.) This post-arrest statement had not been disclosed to the defense. The court found withholding this statement substantially prejudiced defendant’s defense and reversed. “Agent Schultz’s testimony eroded the effectiveness of this trial strategy when she unexpectedly testified that [defendant] also said in his post[]arrest statement that the kilos ‘were strange.’ If [defendant] had known the government would present such testimony, he could have changed his trial strategy.” (Id. at p. 999.)

In United States v. Lanoue (1st Cir. 1995) 71 F.3d 966, 976, the failure to disclose defendant’s recorded statements prejudiced defendant by depriving the defense of the opportunity to design an intelligent litigation strategy that responded to the statements. “[T]he government was able to destroy, with the defendant’s own statements, the credibility of the only defense witness who testified to the defense theory other than the defendant himself.” (Id. at p. 978.) “[A] mistrial was the only appropriate remedy.” (Ibid.; see also United States v. Thomas (2nd. Cir. 2001) 239 F.3d 163, 168 [new trial ordered where prosecution failed to disclose transcript of defendant’s prior testimony on key issue, prejudicial because a competent defense counsel unlikely to advise defendant to testify given admission in transcript]; United States v. Alvarez (1st Cir. 1993) 987 F.2d 77, 85 [failure to disclose evidence linking defendant to crime “sabotaged” defense and deprived defense of opportunity to design intelligent litigation or plea strategy that responded to evidence]; United States v. Rodriguez (11th Cir. 1986) 799 F.2d 649, 652-654 [error not to grant mistrial where failure to disclose materials taken from defendant’s wallet deprived him of chance to prepare his case to meet evidence]; United States v. Kelly (2nd Cir. 1969) 420 F.2d 26 [new trial ordered where results of scientific tests not disclosed to defense, condemning trial by ambush].)

In United States v. Pascual (5th Cir. 1979) 606 F.2d 561, 566, the prosecution failed to turn over a letter from defendant that was tantamount to a “written plea of guilty to the allegations in the indictment.” The Fifth Circuit found “[i]t would be hard to make an argument with any degree of plausibility that the use of this letter without prior production did not seriously prejudice defendants in exercising their option to plead not guilty and in the preparation for trial.” (Id. at p. 565.) Although on retrial, “with this nail in the coffin lid,” another verdict of guilty seemed likely, the court had no choice but to reverse. (Id. at p. 566.)

In United States v. Noe, supra, 821 F.2d 604, the undisclosed evidence was used to attack defendant’s alibi. Defendant denied his involvement in drug transactions, testifying he was visiting family in Costa Rica at the time the events were alleged to have taken place. On rebuttal the government offered a tape recording of a conversation between defendant and DEA agents, in which they agreed to meet the next day in a bar in Atlanta. The recording was made during the time defendant claimed to be in Costa Rica. Defendant objected to admission of the tape on the grounds the government had failed to disclose the tape before trial. (Id. at p. 606.) The reviewing court reversed. The purpose of the discovery rules was “‘to protect defendant’s right to a fair trial.’ [Citation.] And, contrary to the government’s contentions, the degree to which those rights suffer as a result of a discovery violation is determined not simply by weighing all the evidence introduced, but rather by considering how the violation affected the defendant’s ability to present a defense. [Citations.]” (Id. at p. 607.) The court noted the undisclosed evidence “attacked the very foundation of the defense strategy.” (Ibid.) Under the government’s theory, “the prosecution, by design or inadvertence, could withhold discoverable inculpatory evidence until the defendant asserted a defense strategy based on the apparent nonexistence of that evidence, thus foreclosing other, possibly viable, defense strategies.” (Id. at p. 908.) The court refused to adopt such a rule as it would encourage “‘trial by ambush.’” (Ibid.)

The Attorney General seeks to distinguish these federal cases because in most of them the undisclosed evidence was admitted at trial. Here, the trial court imposed a severe sanction for the discovery violation; it precluded the prosecutor from admitting the undisclosed evidence. (See People v. Edwards (1993) 17 Cal.App.4th 1248, 1264-1265.) We agree that, in most cases, such a remedy will be sufficient to cure the prejudice caused by a late disclosure. This case, however, presents an unusual case. The damage to Le’s defense caused by the late disclosure was not simply the need to respond to new evidence. Rather, the effect of the disclosure was to inform defense counsel, near the close of trial, that Le’s alibi was perjury.^[7]

The Attorney General argues the undisclosed evidence did not undercut Le’s alibi; it showed only that he had rehearsed it with his girlfriend. We find this characterization disingenuous. The obvious effect of the letter and tapes, as explained by counsel, was to show Le had manufactured his alibi. While the Attorney General argues Le was free to present other alibi evidence, defense counsel’s ethical obligation not to suborn perjury required otherwise. (Bus. & Prof. Code, § 6068, subd. (d).) Admirably, defense counsel Ralph Cingcon recognized his ethical obligation and did the right thing; he declined to put on further alibi witnesses.

The late disclosure created an unfair surprise to the defense and deprived it of the opportunity to design an intelligent litigation or plea strategy. (United States v. Lanoue, supra, 71 F.3d at p. 976.) In contrast to the commendable behavior of defense counsel, the prosecutor took advantage of the situation he had created by his violation of the discovery rules in closing argument. He argued Le failed to live up to his promise in opening statement to prove an alibi and faulted him for failing to provide witnesses to corroborate his alibi. Over 70 years ago, in describing the duties of a prosecuting attorney, the United States Supreme Court stated: “He may prosecute with earnestness and vigor--indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.” (Berger v. United States (1935) 205 U.S. 78, 88 [79 L.Ed. 1314, 1321].) Here the prosecutor struck a foul blow by failing to timely disclose statements of Le that attacked the foundation of the defense strategy and then in closing argument taking advantage of the bind in which he put defense counsel.

“Prosecutorial misconduct is reversible under the federal Constitution when it ‘infects the trial with such unfairness as to make the conviction a denial of due process.’ [Citations.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1124.) “It is the duty of the government to present its case against the defendant fairly. Little can be added to Justice Traynor’s statement--’A defendant has hardly had a fair trial if he has been denied the opportunity to discover evidence or information crucial to his defense.’” (United States v. Baum (2nd. Cir 1973) 482 F.2d 1325, 1332 [new trial ordered when crucial witness not disclosed to defense].) In order to establish that prosecutorial misconduct is so unfair as to amount to a denial of due process, a defendant must show the misconduct prejudicially affected his

substantial rights. (United States v. Kennedy (4th Cir. 2004) 372 F.3d 686, 696.) As discussed above, in withholding crucial evidence that attacked the foundation of the defense strategy, the prosecution deprived Le of the opportunity to prepare a viable defense and make intelligent decisions about his plea and preparation for trial. The prosecutor’s actions substantially prejudiced Le’s defense. (United States v. Camargo-Vergara, supra, 57 F.3d at pp. 998-999.) Because he was denied a fair trial, Le’s convictions must be reversed.^[8]

2. Keomanivong

Before deciding whether to testify, Keomanivong asked if the prosecutor had any discovery applicable to him. The prosecutor replied, “Not that I intend to give, in light of the court’s ruling.” Keomanivong did not testify.

Keomanivong contends the prosecutor’s answer to whether he had discovery materials related to Keomanivong implied that he had letters and his refusal to turn them over to the defense violated Penal Code section 1054.1, subdivision (b). He further contends that failure was prejudicial because it robbed him of the ability to challenge the authenticity of the letters, crippled defense counsel in devising a strategy, denied Keomanivong effective assistance of counsel, and interfered with his decision whether to testify.

If the prosecutor had letters written by Keomanivong, his refusal to disclose them violated California’s discovery law. (Pen. Code, § 1054.1, subd. (b); People v. Jackson, supra, 129 Cal.App.4th 129, 168-172.) The problem with Keomanivong’s contention, however, is that it is entirely speculative. The record does not show that such letters actually existed. Accordingly, any effect their nondisclosure had on Keomanivong’s defense is speculative. We do not reverse convictions based upon mere speculation. (People v. Gray (2005) 37 Cal.4th 168, 230; People v. Diaz (1962) 208 Cal.App.2d 41, 47.)

B. Closing Argument

1. Formulation of Reasonable Doubt

At the end of his rebuttal argument, the prosecutor addressed the concept of reasonable doubt. He first told the jury that reasonable doubt could not be reduced to a numerical percentage, such as 90 percent certain. He indicated he could never reach 100 percent certainty and was not required to answer every question posed by the evidence. He then stated:

“I don’t like the instruction on beyond a reasonable doubt because I think it’s phrased in the negative. It says you have a reasonable doubt if you don’t have an abiding conviction of the truth of the charge. To me, in my mind, it’s easier if you flip it around and put it in the positive. If you have an abiding conviction of the truth of the charge, then you’re convinced beyond a reasonable doubt. And it’s very simple when you look at it that way. You have to have an abiding conviction of the truth of the charge. Well, what does abiding mean? Abiding means lasting. What does conviction mean? It means strong belief. You have to have a lasting strong, belief of the truth of the charge to convict. And that is all. That is essentially the same standard --”

At this point Le’s counsel asked to approach. Before argument, in response to the prosecutor’s concern about speaking objections, the trial court ruled any objection to argument had to be made by approaching the bench. After the unreported conference, the trial court instructed the jury: “Again, ladies and gentlemen, I remind you the definitions that you are to use have to come from these instructions.”

The prosecutor continued his argument: “This abiding conviction has to last -- well, actually there’s no set time limit on how long it should last. If you want to forget about us in a month and forget that you ever heard about this case, that’s okay. As long as you can recite somewhat the facts of this case, that you know that three carloads of ABZ gang members armed themselves with two rifles and two handguns, drove into Bedlow looking for a fight with rivals and they shot up that street, as long as you can remember that, that’s how long your abiding conviction should last.” The prosecutor ended his argument shortly thereafter.

During a 15-minute break before jury instructions, the reporter read back this argument about reasonable doubt. Le’s counsel contended the argument after the admonishment made the misstatement of the reasonable doubt standard “even worse.” He urged the admonishment was insufficient; the argument lessened and diluted the burden of proof. He asked for a mistrial. Ek and Keomanivong joined in the motion, which was denied.

Defendants contend the prosecutor’s argument that an abiding conviction need not last long reduced the burden of proof and was a structural error requiring reversal.

To establish guilt beyond a reasonable doubt, the factfinder must reach a subjective state of near certitude of the guilt of the accused. (Jackson v. Virginia (1979) 443 U.S. 307, 315 [61 L.Ed.2d 560, 571].) An abiding conviction has a lasting and permanent nature; it must be strongly and deeply held. (People v. Brigham (1979) 25 Cal.3d 283, 290-291.) “The word ‘abiding’ here has the signification of settled and fixed, a conviction which may follow a careful examination and comparison of the whole evidence.” (Hopt v. Utah (1887) 120 U.S. 430, 439 [30 L.Ed. 708, 711].)

The significance of “abiding conviction” with respect to the reasonable doubt standard is the depth and certainty of the belief, not how long the belief is held. The prosecutor told the jury an abiding conviction was “a lasting, strong belief of the truth of the charge to convict.” We find no error in this formulation.

To the extent the prosecutor may have weakened the reasonable doubt standard by his further discussion of how long an abiding conviction must last, the pertinent question is whether there is a reasonable likelihood the jury understood it could convict based on proof of less than beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 6 [127 L.Ed.2d 583, 591].) We conclude there was no such reasonable likelihood. The trial court properly instructed the jury on the presumption of innocence, the reasonable doubt standard, and the People’s burden to prove guilt beyond a reasonable doubt. Further, the court instructed the jury it should use the definitions provided by the court. Absent some indication in the record to the contrary, we presume the jury followed the court’s instructions. (People v. Jablonski, supra, 37 Cal.4th 774, 806-807; People v. Boyette (2002) 29 Cal.4th 381, 436.) Finally, all three defense counsel stressed the reasonable doubt standard in their closing arguments.

2. Other Misconduct in Closing Argument

Le contends the prosecutor committed misconduct in closing argument by commenting on his failure to call alibi witnesses, impugning the integrity of defense counsel by suggesting they habitually lie and mislead juries, and arguing on the basis of facts not in evidence. Most of these contentions relate only to Le. Since we have reversed Le’s convictions due to prosecutorial misconduct in withholding evidence that undercut Le’s alibi defense, we need not address them. However, because Keomanivong adopts Le’s arguments, we consider whether any of Le’s contentions are applicable to Keomanivong.

The only one of these claims of prosecutorial misconduct in closing argument that could apply to Keomanivong is the contention that the prosecutor impugned the integrity of defense counsel by suggesting they habitually lie or otherwise engage in dishonest practices. The prosecutor argued defense counsel get paid to argue their client is innocent. He argued the defense was employing the typical defense called the empty chair defense, by trying to blame the incident on the ASW gang members. “Point at the empty chair and say, ‘That’s the guy that you should have here.’”

None of defendants objected to any of these challenged statements and therefore the contentions are forfeited on appeal. (People v. Kennedy (2005) 36 Cal.4th 595, 626.) In Kennedy, the prosecutor told the jury that defense counsel’s “‘idea of blowing smoke and roiling up the waters to try and confuse you is you put everyone else on trial.’” (Ibid.) The high court found no misconduct; arguing the defense is attempting to mislead the jury is not misconduct. (Ibid.) We find no prejudicial misconduct in closing argument that affected Keomanivong.

III. Speedy Trial

Keomanivong contends his convictions must be reversed because he was denied his right to a speedy trial. Both the federal and state constitutions guarantee the right to a speedy and public trial. (U.S. Const., Amend. VI; Cal. Const., art. I, § 15.) Penal Code section 1385, subdivision (a)(2) provides that unless good cause is shown, a case shall be dismissed when a defendant in a felony case is not brought to trial within 60 days of his arraignment on the information. When a defendant waives the 60-day trial requirement and subsequently withdraws the waiver, he shall be brought to trial within 60 days of the date of the withdrawal. (Pen. Code, § 1385, subd. (a)(2)(A).) Keomanivong contends he was denied his right to a speedy trial because he withdrew his time waiver on October 3, 2002, and was not brought to trial until July 2003.

A. Background

Keomanivong was arrested on March 19, 2002, and held in custody since that time. On July 16, 2002, after the preliminary hearing, he was held to answer on the charges. The information was filed on July 29, 2002, and Keomanivong was arraigned the next day. Keomanivong brought a motion to set aside the information under Penal Code section 995; he waived time so his motion could be heard. On October 3, 2002, the motion was resolved and Keomanivong withdrew his time waiver.

At a hearing on October 28, 2002, Le and Keomanivong put on the record that they withdrew their time waivers on October 3 and trial for them must be set by early December. The district attorney and counsel for Inthirath and Oth (who were still in the case at that time) had schedule conflicts. The court indicated it would decide the severance motions, based on Aranda-Bruton issues (Bruton v. United States (1968) 391 U.S. 128 [20 L.Ed.2d 476]; People v. Aranda (1965) 63 Cal.2d 518) in the various statements of defendants, before setting the case for trial.

At the hearing on the motion to sever, November 5, 2002, counsel for Le and Keomanivong argued the severance motion was moot because three defendants (Le, Keomanivong and Chhun) had withdrawn their time waivers. The court indicated it could not decide the severance issue at that time because it had just got the redacted statements. The prosecutor indicated that if trial was set for any of defendants’ cases, the People would not waive time as to any of the defendants. He further stated he did not understand how they could be ready for trial in less than 30 days.

Counsel for Keomanivong made it clear he wanted the trial set by December 3. Although that was less than 30 days away and he had not received witness information from the prosecutor, he would not complain. The prosecutor stated that once a trial date was set, if any counsel made a motion to continue, under Penal Code section 1050.1 there would be justification to continue all the cases.^[9] He argued a defendant could not get severance simply by not waiving time. Counsel for Keomanivong noted the time waivers were withdrawn before any motions to sever had been filed, or even prepared.

After a discussion of which defendants wanted their trial severed from which other defendants, the prosecutor stated it was critical to the People’s case to have only one trial. There were significant transportation issues with the witnesses from Oakland. There were also concerns about threats to witnesses. He explained that getting all the witnesses to court once would be a feat, but getting them there multiple times would be next to impossible. If defendants would not waive time, the People would not. A trial date should be set for all six cases; if any defendant moved to continue his case, the People would move to continue all the cases under Penal Code section 1050.1.

The trial court agreed that was the only way to handle the situation and set the trial date for November 25, 2002.

At the next hearing on November 11, 2002, the court announced that counsel for Le had passed away. Keomanivong wanted to go to trial; he would not waive time. The court found good cause to continue the case and vacated the trial date as to all defendants. Keomanivong put his objection on the record.

By early December Le had retained new counsel. That counsel indicated he could be ready for trial in May. Keomanivong maintained his desire for the earliest possible trial date. In light of the request for a May trial date, the prosecutor raised Keomanivong’s speedy trial rights. Le’s new counsel and the prosecutor agreed on April 1 for the trial date. The trial court set the trial date as April 1, 2003, over Keomanivong’s express objection.

In January 2003, the motions to sever were denied; the court ruled the cases would proceed in a joint trial with the agreed upon redactions to defendants’ statements. Keomanivong again raised the issue of his right to a speedy trial; he had not waived time. Counsel for Inthirath and Ek indicated they could not start the trial in April because they had a death penalty case scheduled then. In addition, counsel for Inthirath was expecting her first grandchild at the end of June and her son-in-law was being deployed to the Middle East in mid-April.

The trial court set the trial date as July 1, 2003. Counsel for Keomanivong questioned whether other counsels’ schedules was good cause for continuing his client’s trial. The court responded yes; good cause for one was good cause for all. Counsel indicated Keomanivong was very upset and wanted the finding of the good cause stated on the record. The court found good cause to continue the case until June 30 due to the unavailability of counsel. Keomanivong placed his objection based on his right to a speedy trial on the record. The court noted the Legislature had set the 60-day trial limit. “What the Legislature giveth, the Legislature can taketh away.” The court believed the Legislature had taken away the right to a trial within 60 days. The court encouraged Keomanivong to take a writ to settle the issue.

After further continuances, jury selection began July 10, 2003.

B. Analysis