P. v. Nguyen

Filed 8/30/07 P. v. Nguyen 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, William R. Froeberg, Judge. Affirmed in part, reversed in part and remanded.

Lynne Patterson for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Raquel M. Gonzalez and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant Bao Quoc Nguyen challenges his convictions for first degree murder, attempted premeditated murder, and conspiracy to commit murder. Defendant contends: (a) the evidence was insufficient to support his convictions; (b) the trial court erred by not excluding a statement obtained from him in violation of his Miranda rights;^[1](c) the prosecutor committed prejudicial misconduct; (d) lengthy preindictment delay violated his right to due process; and (e) the introduction of statements from an alleged coconspirator violated his Sixth Amendment right to confrontation.

We agree the evidence introduced at trial was insufficient to support defendants conviction for first degree murder. Specifically, defendant was convicted under a provocative act murder theory, but the prosecution produced no evidence demonstrating defendant or his accomplices instigated the gunfight with their rivals. Sufficient evidence, however, supported the attempted murder and conspiracy convictions. Moreover, defendant has failed to demonstrate either prosecutorial misconduct or any prejudice resulting from preindictment delay. Finally, the challenged coconspirator statements did not violate defendants right to confrontation because they were not offered for their truth. Accordingly, we reverse defendants murder conviction, but affirm his convictions for attempted murder and conspiracy to commit murder. We remand for resentencing.

I

Factual and Procedural Background

A. The AG Beating of Tu Tran and Initial Retaliation Attempts

In July 1999, defendant belonged to a street gang known as the Asian Crip Boys (ACB). Between 2:00 and 3:00 a.m. on July 2, 1999, certain ACB gang members and associates traveled to the Phuc Loc Restaurant to eat. After exiting their car, some of the group encountered members of a rival street gang, the Asian Gang (AG), known to hang around the Phuc Loc Restaurant. The AG members yelled fuck ACB, and attacked a member of the ACB party, Tu Tran, punching and clubbing him. Tran fled into the restaurant, and the AG members smashed the windows of his car.

Frightened and angry, the ACB group left the restaurant and called ACBs leader, Ca Le. Le, armed with a gun and accompanied by other ACB gang members, traveled back to the Phuc Loc Restaurant to retaliate. Unable to locate any AG members at the restaurant, the group traveled to the apartment where Bao Tran, a known AG member, lived. Although not locating Tran, Le and another cohort broke a window on Trans parked car. The group then drove to the home of another AG member, but was unable to locate him. Defendant was not present during Tu Trans beating or his gangs initial retaliation attempts.

B. AG Members Shoot at Ca Le

After the Tran beating, Le, accompanied by several ACB cohorts, drove to his apartment complex in an Acura Legend owned by Thuong Tommy Truong. As Le parked the vehicle, another car pulled next to the Acura with its headlights off. Someone in the approaching car said in Vietnamese, Motherfucker, shoot them for me. Immediately, gunfire erupted, shattering the Acuras front driver and passenger windows. When the shooters car fled, Le pursued in the Acura as one of his accomplices fired a handgun at the shooters car.

C. ACB Plots Retaliation

On July 4, defendant and other ACB members met at an apartment complex to discuss AGs assault on Ca Le. Angry about the shooting, the group drove in a caravan of four cars to Huntington Beach, where they encountered AG members. Spotting the AG group, an ACB member yelled, Fuck A.G. A.G, A.G. Get them. Shoot them. Shoot them. Someone holding a gun then jumped out of defendants car and approached the AG group while another ACB member yelled shoot them. The ACB members held their fire, however, when they spotted Les cousin with the AG group.

After returning from Huntington Beach, the group drove to the Bich Dao billiard hall parking lot. There, defendant and several members of the group discussed guns and plotted payback against AG. The group decided to look for AG members at the Phuc Loc Restaurant and retaliate by shooting them.

D. Shootout at the Phuc Loc Restaurant and Subsequent Police Investigation

The ACB group traveled to the Phuc Loc Restaurant in four cars. The group did not approach the restaurant directly, but passed by the location first and made a U-turn to come back toward it. When they arrived at the restaurant, three to four AG members stood by a car in the parking lot. The ACB group stopped by the entrance to the parking lot. A witness heard yelling before gunfire erupted between the two groups. After the cars in the ACB group fled, defendant noticed one of his passengers, The Peanut Doan, had been shot in the head. Defendant dropped off one of his passengers, Si Do, and then drove to the hospital with Doan and two other passengers, Huy Le and Hein Vu. On the way to the hospital, defendant told Huy Le and Hein Vu to claim they were coming home from Disneyland when unknown persons fired shots at them. Defendant, Huy Le, and Hein Vu each initially told this story to the police.

Doan died from a single bullet wound to his head. The police impounded defendants Honda located at the hospital parking lot and found a nine-millimeter shell casing on the right front passenger floor board. The police determined the shell casing had been fired by the same gun that fired three or four other nine-millimeter shell casings found at the entrance to the Phuc Loc Restaurant parking lot. The police had also found a bullet hole in the trunk of defendants car and rear seat. Approximately five hours after the shooting, the police tested defendants right hand for gunshot residue. Although defendant had previously washed his hands at the hospital, the test revealed gunshot residue.

Approximately a mile from the Phuc Loc Restaurant, police stopped an Acura Legend that was part of the ACB group. The car had bullet strikes on the roof behind the sunroof. Consistent with the appearance of the bullet strikes, one of the passengers told police he had fired bullets out of the cars sunroof. The police found three .38 caliber bullet casings in the restaurant parking lot and two more bullet casings fired from the same gun were discovered in the street approximately two miles away.

The jury convicted defendant of first degree murder (Pen. Code, 187, subd. (a)); attempted premeditated murder (Pen. Code, 664, 187, subd. (a)); and conspiracy to commit murder (Pen. Code, 182, subd. (a)(1), 187, subd. (a)). The jury also found defendant committed the crimes for the benefit of a criminal street gang (Pen. Code, 186.22, subd. (b)(1)(A)), and that a principal in the crimes intentionally and personally discharged a firearm for the benefit of a street gang (Pen. Code, 12022.53, subds. (c), (e)(1).) The court sentenced defendant to 25 years to life for first degree murder, with an additional term of 20 years for the intentional and personal use of a gun for the benefit of a gang. The court imposed a concurrent term for the potential life sentence on the attempted murder conviction and stayed the sentence on the conspiracy conviction under Penal Code section 654. Defendant now appeals.

II

Discussion

A. The Evidence Is Insufficient to Support Defendants Murder Conviction Under the Provocative Act Doctrine

Defendant challenges the sufficiency of the evidence to support his murder conviction under the provocative act doctrine. The due process clause of the Fourteenth Amendment guarantees no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense. (Jackson v. Virginia (1979) 443 U.S. 307, 316.) Sufficient evidence is shown when the evidence is substantial, which has been defined as evidence that reasonably inspires confidence and is of solid value. (People v. Morris (1988) 46 Cal.3d 1, 19.) A reviewing court must accept logical inferences the jury might have drawn from the circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) A reasonable inference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence. [Citations.] (Morris, at p. 21.)

The prosecution based its murder charge on the provocative act murder doctrine. Defendant challenges the sufficiency of the evidence to support his murder conviction because the prosecution failed to present evidence demonstrating he or his accomplices committed a provocative act before the AG group began firing. We agree.

To establish liability under the provocative act doctrine, the defendant must commit an act that provokes a third party to fire a fatal shot [and] know[] that his or her provocative act has a high probability not merely a foreseeable possibility  of eliciting a life-threatening response from the person who actually fires the fatal bullet. (People v. Briscoe (2001) 92 Cal.App.4th 568, 582 (Briscoe).) Moreover, liability attaches even if a surviving accomplice commits the provocative act. (Id. at p. 583.) The provocative act murder doctrine has traditionally been invoked in cases in which the perpetrator of the underlying crime instigates a gun battle, either by firing first or by otherwise engaging in severe, life-threatening, and usually gun-wielding conduct, and the police, or a victim of the underlying crime, responds with privileged lethal force by shooting back and killing the perpetrators accomplice or an innocent bystander. (People v. Cervantes (2001) 26 Cal.4th 860, 867 (Cervantes).)

The timing of the events is critical. By necessity, the provocative act must occur before a victim may make a lethal response. [Citation.] There may be more than one act constituting the proximate cause of the killing. [Citation.] If the defendant commits several acts but only one of them actually provoked a lethal response, only that act may constitute the provocative act on which culpability for provocative act murder can be based. [Citations.] (Briscoe, supra, 92 Cal.App.4th at p. 584, italics added .)

Here, the ACB group sought to retaliate against AG members for the attacks on Tran and Le, and traveled to the restaurant to locate and shoot AG members. But there is no evidence the ACB group actually instigated the gun battle with the AG members, either by firing first or visibly wielding guns. To constitute the actus reus of provocative act murder, the defendant must commit an act that provokes a third party to fire a fatal shot. (Briscoe, supra, 92 Cal.App.4th at p. 582.)

The Attorney General cites evidence of the ongoing war between the two gangs, the ACB groups plans for retaliation, the furtive manner in which the ACB members approached the restaurant, the shell casing found in defendants car, defendants positive gunshot residue test, evidence of shots fired from two other ACB vehicles, and defendants actions after the shooting, including dropping Do off before going to the hospital, instructing his passengers to lie about where they had been, and defendants own deceitful statements to investigators. The Attorney General then concludes, From the totality of the circumstances, the jury could logically infer that appellant led his ACB gang members to an armed, sneak attack on AG members. The Attorney General is absolutely correct about that. But his next clause, and that appellant and his cohorts initiated the gun battle . . . is wholly unsupported.

What the totality of the circumstances shows is that the ACB group went to the restaurant fully intending to shoot it out with AG members. What it does not show what there is a complete absence of anything in the record to show is that they actually started the ensuing fight. There is, as the Attorney General points out, plenty of evidence that ACB shot at AG members, but largely undisputed evidence also demonstrated the AG members had, within a brief time before the restaurant shootout, attacked ACB members on sight without apparent provocation. The Attorney General does not argue that under the circumstances of ongoing warfare between these two gangs in the preceding 48 hours, merely going to the restaurant or driving by slowly and circling was a provocative act, nor was this theory presented to the jury.^[2] What is argued is that firing the first shot is a provocative act, and, while that is indubitably good law, it is nowhere shown to have been the case here.

So what we are left with is a case tried and argued on appeal as one in which the provocative act was firing the first shot, but no evidence ACB did so. It may well have been ACBs intention to fire the first shot. But without evidence of who actually managed it in this case, we have no option other than reversal of the murder conviction.

Because the record discloses insufficient evidence the ACB group committed a provocative act, we reverse defendants murder conviction.^[3]

B. Sufficient Evidence Supports Defendants Conspiracy and Attempted Murder Convictions

Like first degree murder, attempted first degree murder requires a finding of premeditation and deliberation. [Fn. omitted.] [T]he test on appeal is whether a rational trier of fact could have found premeditation and deliberation beyond a reasonable doubt based upon the evidence presented. [Fn. omitted.] The three categories of evidence for a reviewing court to consider with respect to premeditation and deliberation are: (1) prior planning activity; (2) motive; and (3) the manner of killing. [Fn. omitted.] The process of premeditation and deliberation does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . . [Citations.] [Fn. omitted.] (People v. Villegas (2001) 92 Cal.App.4th 1217, 1223-1224.)

Defendant contends the circumstances of the shooting at the Phuc Loc Restaurant negate a finding of premeditation and deliberation. Specifically, defendant notes there was no evidence that ACB members cased the restaurant to learn whether AG members were present. Defendant explains the ACB members may have carried guns in their cars simply for their own protection against an AG attack. Thus, defendant concludes the evidence supports a finding the ACB members simply drove to the restaurant to eat and were fired upon by AG members, prompting them to return fire.

Whether the evidence supports defendants scenario is beside the point. The issue is whether substantial evidence supports the jurys verdict. Here, the evidence demonstrated the ACB group traveled to the restaurant to shoot AG members. ACBs uncertainty that they would find AG members at the restaurant does not negate the evidence of their planning and premeditation.

Defendant also contends insufficient evidence supports his conspiracy and attempted murder convictions because they are based on the uncorroborated testimony of accomplices. Defendant asserts accomplice testimony regarding his participation in plotting to retaliate against AG provided the only evidence of his involvement. Without this testimony, defendant argues the evidence demonstrates only that the AG members attacked them when they arrived at the restaurant to eat.

Penal Code section 1111 provides, in relevant part: A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. To support a conviction based on accomplice testimony, The corroborating evidence may be circumstantial or slight and entitled to little consideration when standing alone, so long as it tends to implicate the defendant by relating to an act that is an element of the crime. [Citations.] The independent evidence need not corroborate the accomplice as to every fact on which the accomplice testifies [citation] and need not establish every element of the charged offense [citation]. The corroborating evidence is sufficient if, without aid from accomplice testimony, it tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth. [Citations.] (People v. Vu (2006) 143 Cal.App.4th 1009, 1022.) A defendants false or misleading statements to authorities may constitute sufficient corroborating evidence. (Ibid.)

Here, the corroborative evidence of defendants participation in a conspiracy to shoot AG members is abundant. Evidence from nonaccomplices corroborated the existence of a feud between the ACB and AG street gangs. Specifically, the police confirmed the injury Tran sustained from the AG beating and the damage to his car. The police found small piles of glass and gunshot marks at the apartment complex where the AG attacked Le. A police expert testified that in gang culture, respect is everything, explaining that if a gang member is treated with disrespect by a rival gang, the first gang must retaliate with equal or greater force to save face. Other independent evidence supports defendants participation in ACBs retaliation against AG. For example, investigators found a nine-millimeter shell casing in the front passenger floorboard of defendants car, which forensic evidence linked to casings found in the street in front of the Phuc Loc Restaurant. A gunshot residue test on defendants right hand produced a positive result. Another ACB car near the scene bore bullet strikes indicating shots had been fired from its sunroof. During a police interview, defendant concealed the fact that AG members shot at his car, and lied about his destination. In sum, ample evidence corroborates the accomplice testimony concerning defendants active participation in the conspiracy to shoot AG members.

C. Sufficient Evidence Supports the Personal Firearm Use Enhancement

Defendant contends insufficient evidence supports the personal firearm use enhancement because the evidence does not demonstrate he personally fired a gun. We disagree.

Penal Code section 12022.53, subdivision (c), provides: Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years. This subdivision, however, is qualified by subdivision (e)(1), which provides: The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [] (A) The person violated subdivision (b) of Section 186.22. [] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d). Penal Code section 186.22, subdivision (b), provides enhancements to the sentence of any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.

Thus, under the foregoing statutory provisions, a person convicted of a felony committed to benefit a criminal street gang shall receive a 20-year sentence enhancement if any principal in the offense personally discharged a firearm, even if the defendant did not do so. The trial court recognized this point during sentencing when, after imposing the enhancement, it noted the defendant did not actually fire the weapon  . . . . Here, imposition of the enhancement is supported by evidence that a nine-millimeter shell casing found in defendants car matched those found in the street outside of the restaurant, and police obtained a positive gunshot residue test result on defendants hand. Consequently, ample evidence supports the gun enhancement.

D. The Court Correctly Concluded No Miranda Violation Occurred

After defendant drove Doan to the hospital, a police officer arrived to interview defendant and his two passengers. Defendant then voluntarily accompanied the officer to the location where the shooting occurred and agreed to an interview at the police station. The uniformed officer drove defendant to the station in a marked police car. At no time was defendant handcuffed or restrained. The detectives at the station asked defendant if he would mind having bags placed on his hands for the gunshot residue examination. Defendant agreed. Officers never placed defendant under arrest or told him he could not leave.

Detectives began interviewing defendant at approximately 5:45 a.m. and concluded at 7:00 a.m. During the interview, defendant consistently told the detectives he and his friends were returning home after visiting Disneyland when unknown persons fired gunshots at them. Defendant never admitted Si Do was in the car, and told the detectives he drove straight to the hospital once he noticed Doan had been shot. In the latter part of the interview, the detectives accused defendant of lying and of not caring about his dying friend. At one point, an investigator told defendant to stay awake, stating: Dont fall asleep, youre not, youre not done yet, okay. Stand up, go ahead and stand up, you need to stay awake. Stand up. Okay, cause youre not gonna fall asleep here. After the interview ended, investigators did not prevent defendant from leaving the police station. At no time before or during the interview did investigators advise defendant of his Miranda rights.

The trial court denied defendants motion to exclude his statements, finding defendant was not entitled to Miranda warnings because he was not in custody when investigators interviewed him. Defendant contends the trial court erred because the circumstances of the interview demonstrated officers conducted a custodial and coercive interrogation, rendering his statements involuntary. Defendant contends his admission to the investigators that he had been at the Bich Dao billiard hall before the shooting was prejudicial.

Statements elicited from a defendant during custodial interrogation are inadmissible unless preceded by a valid waiver of the defendants Miranda rights. (People v. Mickey (1991) 54 Cal.3d 612, 647-648.) Miranda warnings, however, are required only when a suspect has been taken into custody or otherwise deprived of his freedom of action in any significant way. [Fn. omitted.] (Miranda, supra, 384 U.S. at p. 444.) The Supreme Court explained: Miranda become[s] applicable as soon as a suspects freedom of action is curtailed to a degree associated with formal arrest. (Berkemer v. McCarty (1984) 468 U.S. 420, 440, quoting California v. Beheler (1983) 463 U.S. 1121, 1125.) Whether an individual is in custody is a mixed question of law and fact. (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403 (Pilster).) We defer to the trial courts findings of fact to the extent that they are supported by substantial evidence, but independently evaluate whether the defendant was in custody. (Ibid.)

Custody determinations are resolved by an objective standard: Would a reasonable person interpret the restraints used by the police as tantamount to a formal arrest? [Citations.] [Fn. omitted.] The totality of the circumstances surrounding an incident must be considered as a whole. [Citation.] Although no one factor is controlling, the following circumstances should be considered: (1) [W]hether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of [the] questioning. [Citation.] (Pilster, supra, 138 Cal.App.4th at p. 1403.) Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspects freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were aggressive, confrontational, and/or accusatory, whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview. [Citation.] (Id. at pp. 1403-1404.)

A statement is involuntary and, thus, inadmissible if it is obtained by threats or promises of leniency, whether express or implied. [Citations.] A finding of coercive police activity is a prerequisite for a finding that a confession was involuntary under the due process clauses of the federal or state Constitution. (People v. Clark (1993) 5 Cal.4th 950, 988.)

We conclude the trial court did not err in determining defendant was not in custody, and that defendants admission he was at the Bich Dao billiard hall was voluntary. The defendant voluntarily agreed to an interview at the police station. Detectives did not handcuff defendant, threaten to arrest him at the outset of the interview, or arrest him at its conclusion. Although defendants hands were bagged for gunshot residue throughout the interview, defendant voluntarily agreed to take the test. The entire interview lasted an hour and 15 minutes, not unreasonably long given the circumstances of the case. True, the detectives questioning became fairly confrontational in the latter half of the interview. But defendants admission he was at the Bich Dao billiard hall came approximately five minutes after questioning started, before the detective accused defendant of lying. Accordingly, we conclude the trial court did not err in denying defendants motion to exclude his pretrial statements.

E. Defendant Fails to Demonstrate Prosecutorial Misconduct

Defendant contends the prosecutor engaged in misconduct by reading to witnesses their testimony given at a previous hearing, citing People v. Hill (1998) 17 Cal.4th 800, 827. Hill, however, concerned prosecutorial arguments based on facts outside of the record, not to a prosecutor reading at trial a witnesss prior testimony deemed admissible by the trial court. Defendant does not assert the prosecutor committed the same misconduct condemned in Hill.

Despite referring to the prosecutors reading of certain witnesses prior statements as misconduct, defendant fails to identify any specific violation of the Evidence Code. [P]hrasing the claim as one of misconduct adds nothing to the strength of defendants evidentiary claims . . . . Although offering evidence the prosecutor knows is inadmissible may be misconduct [citation], the adversarial process generally permits one party to offer evidence, and the other party to object if it wishes, without either party being considered to have committed misconduct. The trial court simply rules on the admissibility of the evidence . . . .(People v. Harris (2005) 37 Cal.4th 310, 344.)

Evidence Code sections 770 and 1235 provide an exception from the general rule against hearsay for a witnesss prior statement that is inconsistent with the witnesss testimony at trial, provided the witness is given the opportunity to explain or deny the statement. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 78.) Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witnesss prior statement describing the event. [Citation.] When, however, a witnesss claim of lack of memory amounts to deliberate evasion, inconsistency is implied. [Citation.] (Ibid.) The trial court is in the best position to determine whether a witnesss claimed lack of recollection is feigned. (Ibid.)

Here, the trial court specifically found the witnesses, all of whom were gang members or gang associates, to have been deliberately evasive when they claimed lack of recollection, observing: There was never any dispute that Im aware of that these witnesses claim of lack of memory was anything other than deliberate evasion. So to hold the prosecutor to be exercising prosecutorial misconduct belies the evidence in the case. Defendant does not challenge the courts finding on this issue. Because defendant failed to demonstrate the witnesses prior statements were inadmissible, it follows that the prosecutor did not commit misconduct merely by introducing those statements.

F. The Preindictment Delay Did Not Violate Defendants Due Process Rights

Doan was murdered on July 5, 1999. The case against defendant was presented to a grand jury from November 2004 to January 2005, and the grand jury returned an indictment against defendant on January 13, 2005. Defendant was arraigned on January 21, 2005, and trial commenced on August 23, 2005. Defendant contends the preindictment delay violated his due process rights because the delay resulted in witnesses memories fading by the time of trial.

Under both the federal and state Constitutions, a claim of accusatory delay requires proof the delay actually prejudiced the defendant. (See United States v. Lovasco (1977) 431 U.S. 783, 790; People v. Martinez (2000) 22 Cal.4th 750, 765.) Defendant need only make a prima facie showing of prejudice to shift the burden to the prosecution to justify the delay. (Garcia v. Superior Court (1984) 163 Cal.App.3d 148, 151.) Prejudice may be shown by the loss of material witnesses or loss of evidence from fading memories. (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911.) Although the showing required by the defendant is minimal, prejudice will not be presumed. If defendant fails to show prejudice, the court need not inquire into the justification for the delay since there is nothing to weigh such justification against. (Ibid.)

Here, defendant failed to make any showing of prejudice. Defendant does not cite any specific evidence which could have been presented if he had been indicted and tried sooner, or to any witness who became unavailable because of the delay. Instead, defendant generally notes several witnesses who claimed they could not recall events when the prosecutor questioned them at trial. All of these witnesses were either gang members or gang associates. After observing these witnesses demeanor and assessing their credibility, the trial court determined their claimed lack of memory was not due to the passage of time, but rather was the product of deliberate evasion. Defendant having failed to make a prima facie showing of prejudice, the burden did not shift to the prosecution to give any reasons for the delay in indicting defendant.

G. Admission of Huy Les Statement Did Not Violate Defendants Sixth Amendment Right to Confront Witnesses Against Him

Before trial, defendant filed a motion in limine asserting a hearsay objection to a police detective testifying as to Huy Les statement that only he, defendant, Hein Vu, and Doan were in the car at the time of the shooting and that they were returning from Disneyland. The court ruled that the statement was admissible for the limited purpose of showing an attempt to conceal the instrumentalities or object of a conspiracy. Defendant contends admission of Huy Les statement violated his Sixth Amendment right of confrontation. We disagree.

The prosecution did not offer Huy Les statements for their truth, but to show a conspiracy to prevent the police from learning that the group drove to the Phuc Loc Restaurant to attack AG members and that Si Do had left the car with the nine-millimeter firearm used in the attack. Offered for this limited purpose, the statements did not constitute hearsay. Nonhearsay statements, even if considered testimonial, do not implicate the Confrontation Clause. (See Crawford v. Washington (2004) 541 U.S. 36, 59, fn. 9; Tennessee v. Street (1985) 471 U.S. 409, 414.) Any Confrontation Clause concerns are satisfied if the officer hearing the statements is available for cross-examination at trial. (Tennessee, at p. 415.) Accordingly, we reject defendants Confrontation Clause challenge.

III

Disposition

The judgment is reversed as to defendants murder conviction, and the cause is remanded for resentencing. In all other respects, the judgment is affirmed.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

OLEARY, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

^[1]Miranda v. Arizona (1966) 384 U.S. 436, 444 (Miranda).

^[2] We note the California Supreme Court in People v. Sanchez (2001) 26 Cal.4th 834, upheld the first degree murder conviction of a gang member arising from the death of a bystander killed by a stray bullet ding the defendants mutual combat with a rival gang member. Although the court recognized the stray bullet may have come from the rivals gun, the court relied on proximate cause principles to hold the defendant liable without resort to the provocative act doctrine. Because the Attorney General relies exclusively on the provocative act doctrine to seek affirmance here, we do not consider whether defendants conviction could be affirmed on the grounds of mutual combat as enunciated in Sanchez.

^[3] Because we reverse defendants murder conviction for insufficiency of the evidence, defendant may assert a double jeopardy claim to bar retrial. (See People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 72.)