P. v. Tran

Filed 4/25/07 P. v. Tran CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Frank F. Fasel, Judge. Affirmed.

David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.

Thai Bao Tran appeals from a judgment after a jury convicted him of two counts of first degree murder and found true he personally used a firearm during the commission of both counts. Tran argues the trial court erroneously admitted evidence, the district attorney committed misconduct, the court erroneously instructed the jury, and there was cumulative error. Although some of Trans claims have merit, we conclude he was not prejudiced, and we affirm the judgment.

FACTS

It is undisputed Tran shot and killed Jeremy Foster and Thang Nguyen on December 10, 1996, at Bowling Green Park in Westminster. The district attorney proceeded on the theory Tran committed two counts of deliberate and premeditated first degree murder. Tran claimed he acted in self-defense or imperfect self-defense. To completely understand the shootings, we must begin with facts six months earlier when Nguyen learned Tran was dating his ex-girlfriend, Ly Bui.

June 1996-Nguyen Attacks Tran

Tran, Truong Le, and Jeff Nguyen (Jeff) drove to Buis apartment. Le stopped his car near a car where Nguyen was standing. Le told Tran to not get out of the car because Nguyen was a very jealous person. Tran said he did not care, got out of the car, and walked towards the apartment entrance. Nguyen said, What the fuck are you saying? Tran responded, I wasnt talking to you[,] and he kept walking. Tran heard footsteps, turned around, and saw Nguyen running at him with the bottom half of a pool cue. Tran ran and tripped. Nguyen hit Tran with the pool cue between one and 10 times. Nguyen repeatedly yelled, I am going to kill you, mother-fucker. Le and Jeff pulled Nguyen off Tran. Nguyen said, Its not over, its not over yet, and left.

July 1996-Foster and Nguyen Attack Le

The next month, Tran, Le, and his brother, Quan Le (Quan), were at Spires Restaurant in Garden Grove. Foster, Nguyen, and Vy Le (Vy)[1] walked in. As Foster and Nguyen walked by their table, the men conversed. Nguyen motioned for Le to go outside. Le went outside and spoke with Foster and Nguyen. Foster hit Le on the head with a closed fist, and Le fell to the ground. Nguyen kicked Le several times. Quan came outside to help his brother. Quan attacked Nguyen, and they fought. Foster tackled Quan and knocked him into a car. Restaurant employees went outside and stopped the fight. Foster and Nguyen attacked Le because they could not find Tran.

July/August 1996-Tran Shoots at Foster at Spires

Approximately two weeks later, Tuan Tran (Tuan) was at Spires with friends, including Mark Reich. Foster and three friends walked in and they sat at a table. Reich borrowed money from someone at his table and used the pay telephone.[2] About 15 minutes later, Tuan, Reich, et al., paid for their food, Reich stayed inside and played video games, and Tuan went outside. Foster approached Reich, and they talked and shook hands. Reich walked outside and joined Tuan. They walked to the parking lot and saw Tran sitting in the rear passenger seat of a car with three other people, including Quan. Tuan walked to the car to speak with Tran. Tran, wearing black leather gloves, asked Tuan where Foster was and showed him a .22 Beretta handgun. Tuan saw Foster get up to leave the restaurant, and Tuan got into the car with Tran. When Foster got near his car, the car in which Tran and Tuan were riding made a u-turn and drove past Fosters car. As Foster was trying to get into his car, Tran, whose window was down, put his arm out the window and fired the gun at Foster from about 15 or 20 feet away. Tran pulled the trigger several times, but the gun did not fire.[3] Foster ran for cover. Tran said, Fuck. The gun is jammed. The car in which Tran and Tuan were riding sped away. During this time, Tran told Tuan we have to get them before they get us.

September/October 1996-Tran Shoots at Foster While Driving

Sometime between one and two months later, Tran and Tim Dang left Spires in Trans car. Foster, Martin Kanshige, and three others saw Tran leave and Foster said, he wanted to go get him. They got into Fosters car to chase them. Foster caught Tran. Tran grabbed a .357 revolver that was hidden in an air conditioning vent and put it on his lap. Fosters cars passengers side door was next to Trans cars drivers side doorKanshige, Fosters passenger, was next to Tran and their windows were down. Foster and Tran exchanged words. Tran said, You want shit? Tran steered with his left hand and lifted the gun with his right hand. Foster saw the gun and turned the steering wheel to the left, away from Tran. Tran had Dang hold the steering wheel, and he fired the gun twice. Kanshige felt one bullet go by his face, and the other bullet passed through the passenger door. Foster drove away. Tran said, I hope I hit those bastards[.] He also said it was not a bad shot for a moving target. After the second shooting, Tran told Tuan he wanted to kill them.

December 10, 1996-Tran Shoots Foster and Nguyen

Les House

In the afternoon, Foster, Nguyen, Vy, and Mark Danh drove to Les house to ask him whether he and Quan were still friends with Tran. Foster told Le they attacked him at Spires because they could not find Tran. Tran had told Foster that he was no longer friends with the Le brothers. When Foster asked Le whether he was still friends with Tran, he responded, [y]es. Foster was angry with Tran because he lied to him and shot at him. Foster told Le to tell Tran he wanted to talk to him. They left and went to Rockets and Pockets, a pool hall, in Huntington Beach.

Tran Shoots Foster and Nguyen

Foster and Nguyen left the pool hall in Fosters car. Before picking up Fosters girlfriend and going to a movie, they went to a Taco Bell drive through. After getting their food, Foster drove away. Meanwhile, Tran was driving in his car in the same area with his girlfriend, Trinh Ly, in the passenger seat, and Tuan in the backseat. Tran went to a video store to rent videos for Ly because he had business to take care of that evening. As they drove, Tran said Foster was looking for him because Foster wanted him to reimburse Foster for the car window he shot out. Suddenly, Foster and Nguyen started tailgating them.

Tran said Foster was following him and told Ly to take the gun out of the air conditioning vent, but she did not. Tran grabbed a semi-automatic Smith and Wesson Sigma .40 caliber handgun and handed it to Tuan in the backseat. Tran told Ly to get the clip out of the vent and hand it to Tuan. She did and handed it to Tuan. Tran told Tuan to load the gun, which he did. Tran asked Tuan if the gun was loaded and he said, [y]eah. Tuan put the gun in his belt under his sweater.

Foster stopped his car next to Trans and said Tran lied to him thereby disrespecting him. Tran pulled his car into the supermarket parking lot and stopped; Foster followed. Foster got out of his car and walked to Trans cars passengers side window. In Vietnamese, Tran told Tuan to shoot Foster, but he did not. Foster leaned into Trans car and told him to get out to fight. Foster again accused Tran of lying to him. Foster walked to the drivers side window and told Tran to get out of the car to fight and that he would take him down in seconds. Tran said not there because they would be caught and suggested they go to the park. Foster got into his car, and Nguyen drove away. Tran followed.

On the way to the park, Ly told Tran not to fight Foster, and Tran said, shut up. Tran told Ly and Tuan to switch seats when he stopped the car so they could take off quicker if something happened. In Vietnamese, Tran asked Tuan if he wanted to shoot Foster and NguyenTuan did not respond. Tran said, No okay. I will do it. Tuan handed the gun to Tran, and he put it in his front waistband.

Foster stopped at Bowling Green Park, and Tran stopped behind him. Foster and Nguyen got out of the carFoster standing at the back of the car and Nguyen standing at the side of the car holding a soft drink cup. Tran got out of the car and had the gun in his hand; he was trying to tuck it into his belt under his sweatshirt. Tuan moved to the drivers seat and rolled the window down. Tran walked to the front of his car, and Foster asked, What have you got? Tran pulled out the gun and pointed it at Foster. Foster said, I give you props, you know, I think you are down.

Nguyen moved towards Tran on Trans left side. Tran turned towards him and said, step back[,] which he did. Nguyen told Tran to put the gun down. A car drove buy, and Tran lowered the gun. Tran turned towards Foster, smiling. Foster again said, I think you are down, I give you props, you know, point the gun to my face and I will look straight down the barrel. Tran turned towards Tuan and asked him if he heard what Foster had just said; Tuan nodded, yes. Tran had a bigger smile on his face when he turned back towards Foster. Tran had the gun pointed at Fosters face and shot him twice. Foster was unarmed. Nguyen dropped his cup and ran. Tran chased him and shot him in the back several times. As Nguyen fell, Tran continued to shoot him in the back and stood over him and fired down at him. Tran ran back to the car with the gun in his hand. On his way, he stopped at Fosters body and shot him in the head. Sometime later, Tran told Tuan when he fired the last shot into Fosters head there was a lot of blood.

Tran ran to his car, sat in the passengers seat, and told Tuan to drive. He dropped the gun on the passengers side floor. The top portion of the gun was cocked back indicating the gun was empty. Tuan panicked and could not drive the manual transmission so he and Tran switched places. Tran was frantic and asked Tuan whether he had heard everything; Tuan said, [y]es.

Nguyen was moaning as Tran drove past him. Tran angrily told Tuan to get out of the car and finish him off. Tuan told him the gun was out of bullets. As Tran drove away, he said he should have finished [him] off. Tran was afraid Nguyen was still alive and he would be caught. Tran said it was the third time he shot at Foster and he finally got him. Tran said, three strikes and you are out. He drove to Tuans house.

Officer Bill Arganda responded to a shots fired call at Bowling Green Park. He saw Fosters car, and Foster and Nguyen lying on the ground next to the car. Foster had one wound below each eye and was bleeding from the face. There was a small crater in the asphalt near Fosters head. His right hand was between his stomach and beltline, and his left hand was partially inside his left front pocket. Nguyen had 10 gunshot wounds to his torso and arms. Twelve .40 caliber Smith and Wesson cartridge cases were recovered from the scene.

The Alibi and the Guns

At Tuans house, Tran told Tuan and Ly to say they rented movies and watched them at Tuans house. Tran and Tuan collected the guns including the gun used to kill Foster and Nguyen and put them in a black duffel bag.

Tran paged Anvy Nguyen (Anvy) to come help them dispose of the guns. Tran paged him with 911 187Penal Code section 187 is the California murder statute. When Anvy called, Tran said he needed him to drive them around to get rid of the guns, but Anvy could not come.

Tran paged David Pham who arrived at Tuans house approximately one hour later. Tran told Pham he shot Foster and Nguyen. After recounting the events leading to the shooting, Tran told Pham that after he pulled out the gun, Foster said, he didnt have the balls to pull the trigger. Tran excitedly said he shot Foster at point blank range. Tran said Nguyen ran like a little bitch, and he shot him in the back as he ran away. Tran also said he had wiped the bullets clean that day and it was raining so the police would not be able to find any fingerprints. Pham told Tran to throw the gun away, but Tran refused saying it was like owning a Mercedes.

Tran, Tuan, and Ly got into Phams car. They drove to a friends house, but he was not home. Tran told Pham to drive to Hung Huynhs house. Tran told Huynh he shot Foster and Nguyen. Tran told him he went to the park to take care of things. He said Foster had his hand in his pants when he got out of the car. He told Huynh that he shot Foster three times in the head and Nguyen 10 times in the back as he ran away. Tran told him he walked towards Nguyen, who was crying, and shot him in the head. Huynh said that was cold-blooded, but Tran said he did not care because sooner or later if it was not him, too. Tran told Huynh he wanted to hide the guns at his house because the guns had been used in a crime. Huynh said he could not because he was on probation and expecting a baby. He said Tran should throw the .40 caliber gun away, but Tran refused because it was expensive and he wanted money for it.

Tran and Tuan went to Phams car and drove to Lys house to drop her off. To support their alibi, Tran told Ly to call a friend when she got home and tell the friend she got into an argument with Tran at his house, he dropped her off down the street, and she had to walk home. After dropping of Ly, they drove to Christinas, Strawberrys, apartment. On their way, Tuan and Pham told Tran to throw away the .40 caliber gun, but Tran said he could sell it. Strawberry was waiting on the street. Either Tran or Pham gave her the bag of guns, and she took the bag into her apartment. Pham drove Tran and Tuan to Tuans house, and Pham left. Tran spent the night at Tuans.

The next day, Anvy went to Tuans house where he met Tuan, Tran, Pham, Dang, and Nghia Tran. Tran again recounted the events of the shooting. Tran said Foster was taunting him saying you bitch, you wont do it[,] or you are [sic] little pussy[.] Tran said he shot Foster because he was taunting him.

Within one week, Tuan gave Anvy the .40 caliber gun while Tran was present. Tuan told Anvy to get rid of the gun, which he did.

Sometime after the killings, Tran, Ly, and a friend drove to Minnesota to pick up the friends dog. When they returned, Tran learned law enforcement officers were interviewing his friends. Tran told Ly he was going to the police station for an interview because it would make him look better. Tran told Ly to tell the police Tran picked her up, they ate, they rented movies, and Ly went home.

Tran and Ly went to the police station on December 20, 1996, and denied killing Foster and Nguyen or being at the park. Tran was relaxed, calm, and collected. Tran said he had an alibi for the time of the murderhe had a receipt from a video store. Tran claimed he heard about the killings from Tuans sister, who heard it from a friend of Nguyens family. Tran said there were rumors he was the one who killed Foster and Nguyen. Tran admitted having fights with Nguyen, but denied having shot at Foster. Tran said he had heard Foster was shot nine times and Nguyen seven times. Tran said Foster and Nguyen would not have agreed to meet him at an isolated area without backup. A redacted tape of the interview was played for the jury.

When Trans interview was over, he went outside and told Ly law enforcement officers wanted to speak with her. Ly told officers the story Tran told her to tell them.

On January 10, 1997, Ly confessed to taking part in the killings, and she was arrested. Tran was arrested the same day. Law enforcement officers asked Tran if he wanted to tell his side of the story. Tran continued to deny killing Foster and Nguyen, although law enforcement officers told Tran that Tuan and Ly had told them what happened. A redacted tape of the interview was played for the jury.

Trial Court Proceedings

A second amended information charged Tran with two counts of murder (Pen. Code,  187, subd. (a)) (count 1-Foster; count 2-Nguyen).[4] The information alleged a multiple murder special circumstance as to each count. ( 190.2, subd. (a)(3).) The information also alleged Tran personally used a firearm as to each count. ( 12022.5, subd. (a).) The district attorney notified the trial court it was seeking the death penalty.

At trial, the district attorney offered Lys testimony. The district attorney initially charged Ly with being an accomplice to the offenses, and she spent over five years in jail before being granted immunity in exchange for her testimony. The district attorney eventually dismissed the charges. Ly testified Tran believed Foster posed a threat to him and on the night of the shootings, Tran knew Foster was angry at him and he was scared. Ly explained that when Foster and Nguyen got out of the car, both had their hands hidden inside their shirts. Ly did not see Foster make any threatening moves toward Tran with a weapon. Ly was not sure how many times Tran shot Foster, one or two, and he shot Nguyen 10 times. Although Ly admitted she had not told law enforcement officers this earlier, she stated that after Tran shot Nguyen, he walked back towards his car, turned towards Fosters car, and fired one more shot, but she was not sure where because she turned her head. Her testimony on this point was inconsistent. Ly testified she did not think there would be a shooting, only a fight.

The district attorney also offered Tuans testimony. The district attorney initially charged Tuan with two counts of murder. In exchange for his testimony, the district attorney offered Tuan immunity on a different matter and promised no further jail time on this matterhe spent almost two years in jail. Tuan testified that after Tran handed him the gun, he loaded it either at Trans direction or on his own; it had 13 bullets. As they followed Foster and Nguyen to the park, Tran asked Tuan if he wanted to shoot them. Tuan was either silent or said, no. Although he had not testified to it previously, Tran said he would do it himself and asked Tuan for the gun. Tuan handed Tran the gun, and he looked nervous and scared. Tuan testified Nguyen moved towards Tran and he told him to step back and Foster moved towards him and he also told him to step back. That is when Foster told Tran to point the gun at his face and he would stare down the barrel of the gun. After a car passed, Tran raised the gun and shot Foster twice in the face. After chasing and shooting Nguyen, Tran returned and shot Foster one more time. Tuan never saw Foster or Nguyen with a gun.

The district attorney also offered two letters into evidence. The first letter was written on August 11, 1996, to Thuy Nguyen (Thuy), before the killings. In the letter, Tran stated that when he finds Nguyen, he is dead. The second letter was written in August 1997, after the killings, and stated, I thought I could take on the world with guns and knives, now I still think I can, except with my mind. If Buddha gives me a second chance at life, I know my life will be auspicious.

The district attorney offered expert testimony that a .40 caliber bullet caused the crater in the asphalt near Fosters head. Finally, the district attorney also offered expert testimony that based on the location of the wounds and the type of weapon, Tran returned and fired a third shot.

Tran testified on his own behalf. He said the conflict between he and Nguyen began when he started dating Nguyens ex-girlfriend, Bui. He explained the day after Nguyen attacked him with the pool cue, Nguyen apologized to him. However, a few weeks later, Tran was at a pool hall and saw Nguyen and his friends. Trans friend told him that Nguyen and his friends were going to attack Tran when he left. Tran left when Nguyen was not looking, and Nguyen chased him, but did not catch him. After recounting the circumstances of Foster and Nguyens attack on Le, Tran said he heard a rumor Nguyen and Foster carried guns and he obtained a .22 caliber gun.[5]

With regard to the first Spires shooting, Tran said Reich paged him and when he called, Reich told him Foster was there. When he got to the restaurant, he made eye contact with Foster as he was walking out. Tran held up the gun so Foster could see it and fired it into the air to warn Foster to stay away from him and his friends.

Tran testified he sold the .22 caliber gun and bought the .357 caliber gun because he felt he needed it for protection from Foster, Nguyen, and their friends. He hid the gun in the air conditioning vent of his car. As to the second shooting, Tran stated when Foster caught up to him, Foster challenged him. Tran said he shot at Foster because he thought Foster was going to shoot him. Tran said he aimed the first shot above the car and the second shot under the car.

Tran testified that after the second shooting, he made peace with Foster and Nguyen, but he still carried a gun in his car. Tran traded Anvy his .357 caliber revolver for the .40 caliber Smith and Wesson Sigma.

As to the December 10 incident, Tran explained he was at Tuans house and Le told him Foster, Nguyen, Vy, and Danh visited him. Le told him Foster and Nguyen wanted to talk with him because he had lied to them about being friends with the Le brothers. Tran was concerned because lying to someone is disrespecting them in the teen culture. Tran did not believe they just wanted to speak with him. Tran went to Huynhs house and the pool hall. After leaving the pool hall, Tran spoke with Le and he said Foster and Nguyen were at the pool hall looking for him.

Tran said he picked up Ly and they ate dinner. They picked up Tuan and rented movies. As they were driving, Tran noticed Foster was following him. Tran said, we should get them before they get us[.] Tran took the gun from the air conditioning vent and handed it to Tuan. Tran told Ly to give the clip to Tuan.

Tran explained that after they stopped at the supermarket parking lot, Foster asked Tran why he lied to him. Foster told Tran to get out of the car to fight, but Tran did not because he thought they would jump him. Tran did not see any weapons on Foster or Nguyen. Tran suggested they go to the park, and Foster said, follow me. Tran told Tuan and Ly to switch seats.

Tran said he followed Foster to the park despite being terrified and trying to drive away. Tran thought he could broker another peace deal. Tuan handed Tran the gun and said he had chambered a round. Foster stopped, and he and Nguyen got out of the car. Tran stopped his car about 10 feet behind Fosters car, put the gun in his waistband, and got out. Foster asked Tran what kind of gun he had, and Tran pulled the gun out and showed him. Foster said, I give you props for being down. Tran was flattered, smiled, and put the gun in his waistband.

After talking for approximately five to seven minutes about whether Tran was still friends with the Le brothers, Tran thought Nguyen was moving towards him from the left side. Tran pulled out the gun, pointed it at Nguyen, and told him to get back. Nguyen said, no, I want this to end now. Nguyen stepped back. Tran thought Foster or Nguyen were going to kill or seriously injure him.

Tran thought Foster was moving towards him so he pointed the gun at his chest. Foster said, point the gun to my face and I will look down the barrel. Tran turned to Tuan and asked him if he heard what Foster said. Foster repeated what he had said. Foster moved forward with his upper body and moved his hand up a little. Tran panicked and shot Foster twice in the face. Tran thought Foster was pulling out a gun. Tran acknowledged he never told anyone Foster moved towards him and denied shooting him a third time after he fell. Tran stated he saw a movement from his left and

reactedhe shot. He thought Nguyen was going to get a gun so he shot Nguyen in the back over and over. As Nguyen lay on the ground, Tran shot him until the gun was empty. Tran knew he had 12 bullets in the gun. Tran ran to his car; he denied shooting Foster again. He denied making any comments to Tuan about finishing Nguyen off.

Tran offered expert testimony challenging the district attorneys theory about the crater in the asphalt and the ballistics evidence.

Finally, Tran offered the testimony of Dr. John Podboy, a clinical psychologist. Podboy testified concerning general adaptation syndrome, which is when a person perceives a serious threat, he or she simply responds in seconds without rational thought. The first stage is alarm when a person is prepared to fight or run. Additionally, overreaction to a perceived threat is common, and excessive wounding indicates this fight or flight syndrome.

The jury convicted Tran of first degree murder on both counts and found true all the allegations. At the penalty phase trial, the jury could not reach a penalty verdict, and the trial court declared a mistrial. The district attorney advised the court it would not be retrying the penalty trial. The court sentenced Tran on each count to life in state prison without the possibility of parole and four years on the firearm enhancement; the court stayed the sentence on count 2.

DISCUSSION

I. Erroneously Admitted Statement-Tuans Guilty Plea to Second Degree Murder

Tran argues the trial court erroneously admitted the factual basis in Tuans Tahl[6]form because it was not a prior consistent statement. Although we agree the court erroneously admitted the statement, we conclude the error was harmless.

Tuan was arrested on January 10, 1997, and was charged with the same offenses and enhancements as Tran. Tuan testified at Trans preliminary hearing on July 10 and 31, 1998. Tran said that when he testified at the preliminary hearing, he knew the district attorney was going to offer him a deal, but he did not know the specifics. On September 25, 1998, Tuan entered into a plea agreement with the district attorney. He pled guilty to second degree murder and was sentenced to probation for seven years in exchange for testify[ing] truthfully whether called by the defense or prosecution at all hearing or trials. Defense counsel argued, and the trial court agreed, Tuan did not write the statement. The court noted it was common practice in Orange County for the district attorney to write the factual basis for the plea. Tran testified he was released from jail on October 2, 1999, at the end of the preliminary hearing.[7]

On June 14, 2004, near the end of cross-examination, the following colloquy occurred:

[Defense counsel]: And January 8[], 1997, the day you got arrested, you said that you were interviewed by the police for a long, long, long time?

[Tuan]: Yes.

[Defense counsel]: Hours?

[Tuan]: Yes.

[Defense counsel]: For a long, long, long time you did not admit to knowing anything about this shooting, right?

[Tuan]: Yes.

[Defense counsel]: And do you remember the officers trying to persuade you with all sorts of reasons to tell them what you knew?

[Tuan]: Yes.

[Defense counsel]: And do you remember one of the things that they kept repeating over and over again was that you would be much better off as a witness than as a defendant?

[Tuan]: I believe they said it was a suspect, yes, I remember that.

[Defense counsel]: Better off as a witness than a suspect?

[Tuan]: Yes.

[Defense counsel]: And if you tell them what you knew, it would be better for you?

[Tuan]: Yes.

[Defense counsel]: So that -- and then you told them a lot of what you remembered at that time about the incident, right?

[Tuan]: Yes.

During redirect examination, Tuan testified he pled guilty to a reduced charge of second degree murder, he remained in custody until he pled guilty and testified, and he was on probation. The following colloquy then occurred:

[District attorney]: At some point on the night of December 10[], 1996, did you think there was going to be a shooting?

[Tuan]: Yes.

[District attorney]: At what point did you realize or think there was going to be a shooting?

[Tuan]: When we left the Stater Bros. parking lot on our way over to the Bowling Green Park.

[District attorney]: What was it as you left the parking lot at Stater Bros. that made you think there was going to be a shooting that night?

[Tuan]: At this point I was sitting in the front passenger [seat]. I still had the gun under my -- my belt buckle. [Tran] asked me if I wanted to shoot them and I didnt respond to him.

[District attorney]: And after [Tran] asked that question and you didnt respond to him, did he say something else?

[Tuan]: Yes.

[District attorney]: What did he say?

[Tuan]: He said something to the matter, okay, I will do it, and he asked for the gun.

[District attorney]: And was it at that point that you thought there was going to be a shooting?

[Tuan]: Yes, at that point he put on his gloves and I knew something was going to happen.

On recross examination, defense counsel stated, When . . . did you ever, before 35 seconds ago, tell anybody that [Tran] said, Ill do it and then asked for the gun? When did you ever say that before? Tuan responded either he told the police or when he testified at the preliminary hearing. After defense counsel challenged Tuan to find those statements in the preliminary hearing transcripts from July 10 and 31, 1998, Tuan could not.

The following week, when discussing exhibits, the trial court addressed the admissibility of the Tahl form from Tuans second degree murder plea.[8] The district attorney stated it initially was prepared to use the statement to impeach Tuan if necessary. The district attorney said, however, that because Tuan said he thought there was going to be a shooting, it was using the statement to show a prior consistent statement. The district attorney explained that when counsel got up and said, you never said that before, I just sat here and knew that there was a prior statement that he made all the way back at the time of his plea.

Defense counsel stated: Well, first of all, the rule on prior consistent statements is that it has to be prior to the inconsistent statement, okay[.] [] He

testified -- if he testified to what counsel says, he expected the shooting, I had already gone over and over and over that on his very first statement, January 8[], 1997. He did not -- he indicated he did not expect a shooting. He never said that he expected a shooting. [] On his next statement, which was June of 1997, he did not say that he expected a shooting. He indicated he didnt expect a shooting. I took him through, over the course of his testimony, every single prior inconsistent statement. And for a prior consistent statement to come in, it has to be prior to the inconsistent statements, and that is not. [] Moreover, he didnt write that, he didnt dictate the terms of that. And, I didnt get a chance to cross-examine him on why he signed that, when we know the answer is his lawyer said, sign this, you get out of jail free. Dont sign this, and you dont. [] So that isnt even a statement that he is making. Thats a statement that [the district attorney] wants, and it is inconsistent [with] everything he has said before. What he said in trial is inconsistent with everything he said before, and that is not a prior consistent statement under the Evidence Code. [] Moreover, he has to confront the witness with it, give him an opportunity to explain it, give me an opportunity to

cross-examine him on it. So, thats why. He never did say, and he is not saying anything there. It is not even his handwriting.

The trial court stated: With respect to the Tahl form. I think that there is probative value to the factual basis. Prior inconsistent or prior consistent statement notwithstanding. I think, again, it is another [Evidence Code section] 780 issue regarding the credibility of a witness. Defense counsel stated the statement was hearsay. The court said, Whether or not either side, either counsel, examined on factual basis or not for tactical reasons, whatever. I think in and of itself the probative value outweighs the prejudicial effect. [Tuans] signature is on page 2 of the Tahl form . . . . I think that it is a matter of weight as opposed to admissibility on that particular issue. Defense counsel stated, I believe we left [Tuan] on call. [] . . . [] Because, I am now going to

cross-examine him about that. If thats coming in, I want to ask him did he write that, did he understand that, what was he told to do about it. And it will implicate his conversations with his attorney, but I think I should be allowed to go there. The court agreed, but defense counsel did not recall Tuan. The court admitted the Tahl form into evidence. During closing argument, the district attorney repeated the factual basis in the Tahl form for Tuans plea to second degree murder.

Tran argues the trial court erroneously admitted the factual basis for Tuans guilty plea because it was not a prior consistent statement. Tran asserts the statement does not satisfy Evidence Code section 791, subdivisions (a) or (b), because it was made after the inconsistent statements and the improper bias or motive.

The Attorney General seems to agree the statement was not admissible pursuant to Evidence Code section 791.The Attorney General notes the statement was not made before the purportedly inconsistent statement of January 8, 1997, so it appears not admissible under subdivision (a) . . . . Additionally, the Attorney General asserts analysis under Evidence Code section 791, subdivision (b), is complicated because it is difficult to determine when the improper bias or motive arose, but it is unnecessary to work out this conundrum because the statement was clearly admissible under Evidence Code sections 780 and 788 . . . . The Attorney General claims the statement was admissible regardless of whether Evidence Code section 791 was satisfied.

As we explain below, we conclude Evidence Code section 780 is not an independent statutory basis for admitting evidence. The evidence, in this case, a prior consistent statement, must still satisfy the applicable evidentiary rules governing the admissibility of evidence, here, Evidence Code sections 1236 and 791. Finally, we conclude Evidence Code section 788 does not provide an alternative basis for admitting the evidence because the Attorney General was not using the Tahl form to impeach Tuan and admissibility of a felony conviction to impeach is limited to the conviction, and not its factual basis.

Evidence Code section 1200, the hearsay rule, states, evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated[] is inadmissible. However, Evidence Code section 1236 provides: Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with [Evidence Code] section 791.

Evidence Code section 791 provides: Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [] (a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or [] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen. (Italics added; see People v. Kennedy (2005) 36 Cal.4th 595, 614 (Kennedy).)

Because the Attorney General does not attempt to argue Trans statement was admissible pursuant to Evidence Code section 791, we will treat this as a concession and need not discuss it further. However, we must determine whether either Evidence Code sections 780 or 788 were a proper basis for admitting the statement.

Evidence Code section 780 states: Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: [] . . . []

(g) A statement previously made by him that is consistent with his testimony at the hearing. (Italics added.) We review a trial courts ruling on the admissibility of evidence for an abuse of discretion. (People v. Brown (2003) 31 Cal.4th 518, 534.)

Here, the trial court concluded the statement was admissible pursuant to Evidence Code section 780 despite defense counsels hearsay objection. It did so presumably because on recross-examination, defense counsel attacked Tuans credibility, and the court concluded the statement was probative. However, based on Evidence Code section 780s language and purpose, we conclude a prior consistent statement, to be admissible, must comply with Evidence Code sections 1296 and 791.

Evidence Code section 780 begins, Except as otherwise provided by statute . . . . This language means the items listed in Evidence Code section 780 may be considered by the court or jury in determining the credibility of a witness, except where they are inadmissible pursuant to other statutes. Here, the jury could consider the prior consistent statement if that statement satisfied Evidence Code sections 1236 and 791, which as the Attorney General concedes it did not.

Additionally, Evidence Code section 780 lists those items that have a tendency in reason to affect a witnesss credibility. The Law Revision Commission Comment states, So far as the admissibility of evidence relating to credibility is concerned, [s]ection 780 is technically unnecessary because [s]ection 351 declares that all relevant evidence is admissible. . . . Limitations on the admissibility of evidence offered to attack or support the credibility of a witness are stated in Article 2 (commencing with [s]ection 785). Evidence Code section 780 is merely a catalog of items that affect the credibility of witnesses subject to those limitations listed in Article 2, including Evidence Code section 791.

As to Evidence Code section 788, it provides: For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony . . . . However, The scope of inquiry when a criminal defendant is impeached with evidence of a prior felony conviction does not extend to the facts of the underlying offense. [Citation.] (People v. Shea (1995) 39 Cal.App.4th 1257, 1267 (Shea).)

Here, the district attorney specifically stated that although it was prepared to impeach Tuan with the statement, it did not need to and was seeking its admission as a prior consistent statement. To now assert it was using the statement to attack Tuans credibility is disingenuous. Additionally, Evidence Code section 788 allows a witness to be impeached with the felony conviction, and not the facts underlying the conviction. (Shea, supra, 39 Cal.App.4th at p. 1267.) Therefore, the factual statement in the Tahl form was not admissible pursuant to Evidence Code section 788. Although we have concluded the trial court erroneously admitted the statement, we must now determine whether the error was prejudicial.

Since the error is one of state evidentiary law, we apply the standard of prejudice articulated in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (See, e.g., People v. Vasquez (2006) 39 Cal.4th 47, 66 (Vasquez).) Pursuant to that standard, we must determine whether, in light of the entire record, it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. [Citations.] (Id. at p. 66.)

Here, apart from the statement, there was strong evidence Tran committed deliberate and premeditated murder. After Nguyen attacked Tran and the Le brothers, Tran shot at Foster from a moving car at Spires as Foster ran to get into his car. After this shooting, Tran told Tuan we have to get them before they get us. A few months later, Tran shot at Foster as they drove their cars. After this shooting, Tran told Tuan he wanted to kill them.

More importantly, on the night in question, as Foster was following Tran, Tran grabbed a gun from the air conditioning vent in his car. After stopping at Stater Bros. and being challenged to fight, Tran, who was unarmed at that point, said he did not want to fight there because he would get caught, and suggested they go the park, a more secluded place. On the way to the park, Tuan handed the gun to Tran, and he put it in his front waistband. When Tran got out of the car, he pulled out the gun. Ly testified she did not see Foster with a weapon or make any threatening move towards Tran. Tuan testified he did not see Foster make any sudden movements towards Tran or a gun. There was overwhelming evidence Tran shot Foster twice in the face without any provocation, and he shot Nguyen in the back 10 times as he ran away. Additionally, there was evidence that as he was walking back to his car, he shot Foster in the face a third time. Finally, although the post-shooting evidence alone would be insufficient to show premeditation and deliberation, there was a plethora of evidence after the shootings, which we will not repeat here, that demonstrates Tran intended to kill Foster and Nguyen, including his statements to Tuan leaving the park and statements to friends during the week following the shooting. Therefore, it is not reasonably probable Tran would have received a more favorable result had the court not admitted the statement.

II. Prosecutorial Misconduct

Tran argues the district attorney, Michael Murray, committed numerous acts of misconduct. We conclude some of Trans allegations have merit and others do not. We will review each instance, focus on the district attorneys transgressions, and address the issues of cumulative error and prejudice.

A. Misstatements of the Law

Tran alleges the district attorney misstated the law in three areas:

(1) immunity; (2) voluntary manslaughter; and (3) a defendants Fifth Amendment rights. We will discuss each allegation in turn.

1. Immunity

Relying on People v. Frye (1998) 18 Cal.4th 894 (Frye), Tran argues the district attorney committed prosecutorial misconduct because: (a) on direct examination, the district attorney improperly suggested witnesses were testifying truthfully because of their immunity agreements; (b) during closing argument, the district attorney repeatedly referred to the witnesses immunity agreements; and (c) during closing argument, the district attorney stated a judge immunized the witnesses and, therefore, the witnesses testimony must be truthful. We conclude his last contention has merit.

a. Direct Examination

Tran claims the district attorney improperly vouched for Ly, Tuan, Dang, and Anvy by suggesting they were testifying truthfully because of their immunity agreements. We will provide the relevant portions of the transcript below.

During direct examination of Ly, the district attorney asked her what she understood her immunity agreement to mean. The trial court overruled defense counsels improper rehabilitation objection. She responded, The immunity, to my understanding it means that I am protected from incriminating myself in what I say on the stand unless I lie . . . . Later, at the end of redirect examination, the following colloquy occurred:

[District attorney]: Okay. Now, right now as you testify here today you have immunity, right?

[Ly]: Right.

[District attorney]: No matter what you said in previous statements do you feel that you can testify here today and say anything that is the truth and be protected --

[Defense counsel]: Objection, your honor, this is improper rehabilitation of an impeached witness.

[Trial court]: No. Overruled. You may answer.

[Ly]: Can you repeat that?

[District attorney]: Do you feel like as long as you tell the truth having immunity that you can say anything truthful, maam?

[Ly]: Yes.

[District attorney]: And have you, with the understanding that you have immunity here, have you told the truth today?

[Ly]: Yes.

During direct examination of Tuan, the following colloquy took place:

[District attorney]: Sir, I asked you this morning if on or about May 28[], 2004[,] you went to a courtroom over in this building, Judge Marions court, and received immunity for your testimony in court; did that happen?

[Tuan]: Yes.

[District attorney]: What is your understanding of what this immunity means in terms of your testimony here?

[Tuan]: After I was granted immunity, my understanding was that I had to tell the truth on the stand; and if I dont, I would jeopardize myself, incriminate myself on the stand.

[District attorney]: Okay. Do you think that anything that you say here even about involvement in other crimes can be used against you in any way?

[Tuan]: I believe there is a slight chance.

[District attorney]: Okay. Do you understand that this immunity agreement means that anything you testify to today cannot be used against you in some sort of criminal prosecution as long as you tell the truth; do you understand that?

[Tuan]: Yes.

[District attorney]: Prior to the date of this immunity agreement, this order and petition for immunity, had you ever been told that other things that you might have been involved in couldnt be used against you; do you understand the question?

[Tuan]: No, I dont.

[District attorney]: Okay. You remember when you went to court on this immunity petition May 28[], 2004?

[Tuan]: Yes.

[District attorney]: Prior to that day, had anybody told you that other things that you were involved in potentially couldnt be used against you? [] . . . []

[Tuan]: Yes.

[District attorney]: Okay. You are telling the truth today?

[Defense counsel]: Objection, your honor, argumentative and asking for an opinion.

[Trial court]: Overruled. You may answer.

[Tuan]: Yes.

During direct examination, Dang testified that during his interview with police officers shortly after the shootings, he told half the truth. Then the following colloquy occurred:

[District attorney]: Okay. Well, you testified yesterday that now you have immunity, right?

[Dang]: Yes.

[District attorney]: For anything you say from the witness stand, as long as it is the truth, right?

[Dang]: Yes.

[District attorney]: The only thing you can get in trouble for is if you perjure yourself. Do you understand that?

[Dang]: Yes.

Finally, during direct examination of Anvy, the following colloquy took place:

[District attorney]: And after you had [the immunity] agreement, did you provide a taped statement . . . with your attorney present?

[Anvy]: Yes, sir.

[District attorney]: Did you tell the truth in that statement?

[Defense counsel]: I am going to object, your honor. I think it is inappropriate credibility bolstering.

[Trial court]: Overruled.

[District attorney]: Sir, did you tell the truth in that statement?

[Anvy]: As to my knowledge, yes, sir.

Tran acknowledges the district attorney must inform the jury its witnesses testified with immunity and may inform them of the terms of the immunity agreements. (Frye, supra, 18 Cal.4th at p. 971.) However, he claims the district attorney impermissibly [made] myriad additional references to the immunity and to the fact that his witnesses were believable because of their immunized status.

As to Tuan and Ly, the district attorney questioned them concerning whether they had immunity, what the immunity agreement meant to them, and whether they testified truthfully. With respect to Dang and Anvy, the district attorney questioned them regarding whether they had immunity and whether they had testified truthfully. The district attorneys questions were not based on matters outside the record, nor did they portray the district attorneys office as privy to information bearing on the witnesses veracity that was not admitted at trial. The district attorneys questions were based on matters in the record concerning their immunity agreements and credibility, and they were proper. (People v. Medina (1995) 11 Cal.4th 694, 757 (Medina) [prosecutorial assurances regarding apparent honesty or reliability of prosecution witnesses based on record cannot be characterized as improper vouching, which usually involves attempt to bolster witness by reference to facts outside record].)

A district attorney has a duty to disclose to the jury any inducements made to a prosecution witness to testify and may properly read the precise terms of the immunity agreement. (Frye, supra, 18 Cal.4th at p. 971.) Here, the district attorney made an effort to establish the terms of the immunity grant through examination of witnesses. We agree the district attorney tested the limits of what is permissible during its direct examination of the two witnesses, but we conclude the comments do not rise to the level of misconduct.

b. Closing Argument-Tuan and Ly

Tran claims the district attorney committed misconduct by repeatedly referring to Tuans and Lys immunity agreements. During closing argument, the district attorney made numerous references to the fact Tuan and Ly testified with immunity. First, with respect to Tuan, the district attorney stated: And then answer this question, why would [Tuan] lie? He has got immunity for his testimony in this case. He has already pled guilty on the murders. Why would he lie? What is the incentive for [Tuan] to lie? He then said, [Tuan], who has got immunity and has already pled guilty and has nothing to fear on this case . . . . Finally, he said, So do you believe [Tuan] when he says, thats what [Tran] told me to do? [Tuan] with immunity, who has already pled guilty. Or, do you believe [Tran] when he says, No, I never said that.

Second, as to Ly, the district attorney said: You heard from . . . Ly. She had immunity. He wanted someone else to support his alibi, and he tells . . . Ly, I will shoot you, I will kill you if you dont back up my story. Thats what she testified to. [] Why say that? She has immunity. She cant get in trouble for lying to the police, she cant get in trouble for any potential involvement in this case. [] . . . [] But, did she lie about [Tran] threatening to kill her? Why? What does she get from that? What does she get out from under from that? She has immunity.

Regarding the scope of permissible prosecutorial argument, a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature. [Citation.] A prosecutor may vigorously argue his case and is not limited to Chesterfieldian politeness [citation], and he may use appropriate epithets . . . . [Citation.] [Citation.] (People v. Stanley (2006) 39 Cal.4th 913, 951-952 (Stanley).)

Considering each of the complained-of comments in context, we find that although the district attorney unnecessarily belabored the issue of immunity in an apparent attempt to establish the credibility of his witnesses, we cannot say the questioning exceeded the limitations articulated in Frye. While we do not approve of the district attorneys method of arguing the immunity issue, we find no misconduct.

c. Closing Argument-Courts Approval

Tran claims the district attorney committed misconduct during closing argument by suggesting that because a judge immunized the witnesses, their testimony must be truthful. During closing argument, the district attorney stated: And they received immunity because if I subpoenaed them, they had Fifth Amendment rights. And they cant be compelled to answer questions. Unless they have immunity. It is the constitution. There is no nefarious reason for that, nobody has been bought and paid for. In fact, it is quite the opposite. . . . [] When a witness receives immunity, they are absolutely free, and in fact ordered by the court, to answer questions truthfully. It is in the court order with the petitions. They must, once they have no Fifth Amendment concerns, meaning they can be asked questions by the defense or the prosecution, they must answer the questions truthfully. Because anything they say cant be used against them. He added, Remember, I petition for immunity, the court determines whether it is going to be granted, and ultimately grants it and orders it.

It is not true that immunized witnesses are ordered by the court to tell the truth. Nor is it true that immunized witnesses must answer questions truthfully. A grant of immunity is not some kind of judicial truth serum. It is simply a guarantee that a witness will be immune from prosecution based on the witnesss testimony if the witness testifies truthfully. A truthful witness who has been granted immunity will not be subject to prosecution, whereas a witness who testifies falsely will be subject to prosecution. While immunity from prosecution may be a compelling factor in a witnesss decision to testify truthfully, a grant of immunity does not equate to an order by the court that the witness testify truthfully. ( 1324; see People v. Boyer (2006) 38 Cal.4th 412, 454-457.) A deliberate misrepresentation as to the courts role in the granting of immunity is misconduct.

2. Voluntary Manslaughter

Tran cites approximately seven different instances where the district attorney state