P. v. Nguyen

Filed 5/18/06  P. v. Nguyen CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

            A jury convicted defendant An Duy Nguyen of second degree murder and found true knife-use and street-gang allegations for purposes of sentence enhancement.  The trial court sentenced defendant to one year (knife use) plus 15 years to life (murder conviction) and stayed a 10-year enhancement (street gang).  On appeal, defendant contends that (1) the prosecutor engaged in misconduct by vouching for his own witness, (2) the prosecutor engaged in misconduct during argument, (3) he received ineffective assistance of counsel because trial counsel failed to object to the prosecutor's misconduct during argument, (4) the trial court erred by instructing the jury in the language of CALJIC Nos. 2.03, 2.06 and 2.52 (pattern instructions for inferring a consciousness of guilt from the making of false or misleading statements, from the suppression of evidence, and from flight after the crime), (5) the trial court erred by instructing the jury with the last sentence in CALJIC No. 5.17 (imperfect self-defense), and (6) the cumulative effect of the errors deprived him of his constitutional right to a fair trial.  We affirm the judgment.

background

            Defendant and fellow members of the Vietnamese Gangsters street gang, Bao Tran, Cuong Tran, and Trung Nguyen,[1] went to the Tinh Café.  Cuong and Trung entered and saw that members of a rival street gang, the Asian Warriors, were already seated in the café.  They walked past the Asian Warriors, sat down at a table, and exchanged stares with some of the Asian Warriors.  Defendant and Bao then entered and proceeded past the Asian Warriors toward the table occupied by Cuong and Trung.  Cuong and Trung left the table, encountered defendant and Bao, and warned them that Asian Warriors were present.  Defendant sat at the table, while Bao followed Cuong and Trung back past the Asian Warriors.  Cuong, however, confronted Asian Warrior Duy Phan.  They exchanged stares and words.  Defendant left the table and walked toward Cuong.  Asian Warrior Vu Pham watched defendant rather than Cuong and Duy.  Duy got up from his table, and a melee began.  Defendant pulled out a knife and stabbed Vu.  Vu retreated to the exit, and defendant threw a glass at him.  Vu collapsed outside and died the next day from the wound.[2]

            Defendant advanced a self-defense theory.  He testified that he became frightened when the melee began, saw someone approach him from the side with raised hands, and swung the knife in a protective reaction.

vouching

            Bao negotiated a guilty plea to being an accessory after the fact.[3]  As part of the plea bargain, he agreed to testify honestly and truthfully for the People and accept a reinstatement of the murder charge if the trial court found that he did not fulfill the plea-bargain obligations.  The trial court admitted a copy of the written plea bargain in evidence.

            Bao initially testified that, when he and defendant met up with Cuong in the café, Cuong advised them to leave because Asian Warriors were present.  But, when confronted by his inconsistent statement to the police, Bao admitted that Cuong had instead expressed his intent to start a fight.  Bao later answered a series of questions by denying recollection.  When he did so to a question inquiring whether Vu had a weapon or threatened anyone, the trial court addressed Bao as follows.

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