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Name: People v. Tran
Case #: G036560
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 08/31/2009

The trial court did not err in admitting evidence of appellant’s prior conviction for extortion. Tran raised six issues in the appeal from his convictions for murder, attempted murder, and street terrorism. First, Tran argued that the court should have excluded the gang expert’s testimony concerning his 1994 conviction for extortion. The appellate court rejected the argument, finding that the evidence was relevant to prove the substantive charge of street terrorism, which uses the phrase “pattern of criminal gang activity.” Further, the balancing between probativeness and undue prejudice under section 352 weighed in favor of admissibility. Given the elements of street terrorism, the probativeness of the prior conviction was overwhelming. The extortion evidence proved a high level of activity, knowledge of the gang’s felonious conduct, and willful promotion of the gang’s interests. Further, the trial court specifically admonished the jury not to consider the extortion conviction as evidence of a propensity to commit the charged crimes. The court did not abuse its discretion in denying motions for mistrial and a new trial. Second, Tran argued that the trial court erred in denying his motions for a mistrial and a new trial based on the trial court’s admission of a witness’s testimony that he was afraid to testify because his sister had been “executed.” He argued that the testimony was not relevant, and was unduly prejudicial because it created an inference that he was responsible. The appellate court rejected that argument, finding that the testimony bolstered the witness’s credibility (because he was risking his life to testify) and was therefore probative. It was not prejudicial in the way that Tran argued because it was unlikely the jury presumed that Tran, and not the gang itself, had executed the witness’s sister. Further, there was no basis to impute any sort of misconduct to the prosecutor. Appellant failed to establish a prima facie case of juror misconduct. Third, Tran argued that there was juror misconduct because a juror expressed an opinion after trial that recidivists should be caned, as is done in Singapore, and therefore concealed his bias in favor of the prosecution. The appellate court rejected this argument, finding no necessary relation between certain attitudes towards punishment and an individual’s ability to be fair and impartial in the determination of facts. There was no Cunningham error. Fourth, Tran argued that there was Cunningham error because the trial court imposed upper terms because of the cruelty of the acts, the vulnerability, Tran’s numerous prior convictions of increasing seriousness, and his prior prison terms. The appellate court found the issue waived, but also found that it failed on the merits under People v. Black (2007) 41 Cal.4th 799, because the prior convictions made him eligible for the upper term. The determinations whether a defendant has suffered prior convictions, and whether those convictions are numerous can more appropriately be undertaken by a court. Dual use of a fact at sentencing was harmless. Fifth, Tran argued that the use of a weapon was inappropriately used twice to enhance his sentence because it was the basis for consecutive terms as well as a ten-year enhancement. The appellate court found the error harmless, because only a single factor is needed to impose consecutive sentences. Stripping away the gun use, there were two proper factors left. The court violated section 654 by imposing sentence on the gang offense. Finally, Tran argued that the same conduct was impermissibly used to allege murder and street terrorism, in violation of Penal Code section 654. The trial court and the prosecutor based the street terrorism charge on either the attempted murder or the murder. Since Tran’s intent and objective in both acts was to further his gang, he possessed no general intent to kill in either situation. Therefore, he could not be punished for both murder and street terrorism based on his conduct. The sentence for the street terrorism conviction was therefore stayed.