People v. Szeto , 29 Cal. 3d 20 ( 1981 )

Opinion

CLARK, J.

Defendant appeals from judgment entered on a jury verdict convicting him of being an accessory to a felony (Pen. Code, § 32) and of possession of a sawed-off shotgun (Pen. Code, § 12020).¹ The principal question presented by his appeal is whether the testimony of an accomplice was sufficiently corroborated. The standard we must follow in reviewing this question is well settled. “Unless a reviewing court determines that the corroborating evidence should not have been admitted or that it could not reasonably tend to connect a defendant with the commission of a crime, the finding of the trier of fact on the issue of corroboration may not be disturbed on appeal.” (People v. Perry (1972) 7 Cal.3d 756, 774 [103 Cal.Rptr. 161, 499 P.2d 129]; original italics.) Because the corroborating evidence here was properly admitted and did reasonably tend to connect defendant with the crimes, the implied finding of the jury must be upheld. The judgment will be affirmed.

The charges against defendant arose out of the Golden Dragon massacre. In that incident members of a Chinese youth gang (the Joe Boys) entered a crowded restaurant in San Francisco’s Chinatown and opened fire on the patrons, intending to revenge themselves on members of two rival Chinese youth gangs (the Wah Ching and Hop Sing), but instead killing and wounding innocent bystanders. Defendant was convicted of aiding the killers by disposing of their weapons, which included a sawed-off shotgun.

Saturday evening, 3 September 1977, members of the Joe Boys met at the home of Burt and Sandra Rodriguez in Pacifica and discussed retaliating against the Wah Ching and Hop Sing for the murder of a Joe Boy named Felix Huie. At 2 a.m., 4 September 1977, Tom Yu, one of the Joe Boys involved in the aforementioned discussion, received a telephone call at the Rodriguez residence, informing him that members of the Wah Ching and Hop Sing were then in the Golden Dragon Restaurant. The Joe Boys armed themselves with weapons they had stored in a closet in the Rodriguez house. Melvin Yu took a .45 automatic rifle, Curtis Tam a sawed-off shotgun, and Peter Ng a conventional shotgun and a .38 handgun. Chester Yu drove them to the Golden Dragon in a car stolen earlier in the evening by Peter Cheung. At 2:40 a.m., with Chester Yu remaining in the car, Melvin Yu, Tam and. Ng entered the restaurant. Although their intended victims escaped injury, 5 bystanders were killed and 11 wounded. Chester Yu drove the killers back to the Rodriguez residence where they replaced the weapons in the closet.

As stated, the principal question presented by this appeal is whether the testimony of an accomplice—Chester Yu—was sufficiently corroborated. Before summarizing the evidence of defendant’s involvement, we shall briefly review the familiar rules governing corroboration of accomplice testimony.

Section 1111 provides in pertinent part: “A conviction cannot 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 corroborate the testimony of an accomplice, the prosecution must produce independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged. (People v. Luker (1965) 63 Cal.2d 464, 469 [47 Cal.Rptr. 209, 407 P.2d 9].) ‘The evidence need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet 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; it must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient itself to establish every element of the offense charged.’ (People v. Lyons (1958) 50 Cal.2d 245, 257 [324 P.2d 556]; see also People v. Luker, supra, 63 Cal.2d 464, 469; People v. Holford (1965) 63 Cal.2d 74, 82 [45 Cal.Rptr. 167, 403 P.2d 423].) ‘Although the corroborating evidence must do more than raise a conjecture or suspicion of guilt, it is sufficient if it tends in some degree to implicate the defendant.’ (People v. Santo (1954) 43 Cal.2d 319, 327 [273 P.2d 249].) ‘[T]he corroborative evidence may be slight and entitled to little consideration when standing alone.’ (People v. Wade (1959) 53 Cal.2d 322, 329 [1 Cal. Rptr. 683, 348 P.2d 116].)” (People v. Perry, supra, 7 Cal.3d 756, 769.) Finally, “[u]nless a reviewing court determines that the corroborating evidence should not have been admitted or that it could not reasonably tend to connect a defendant with the commission of a crime, the finding of the trier of fact on the issue of corroboration may not be disturbed on appeal.” (People v. Perry, supra, 7 Cal.3d at p. 774; original italics.)

Chester Yu testified as follows concerning defendant’s role in the affair: Chester, the killers and other Joe Boys slept at the Rodriguez residence the balance of the night. The following morning defendant, who had not been there earlier, brought wonton soup to them. While eating the soup the gang heard a radio broadcast concerning the killings. Peter Ng, Melvin Yu and others then took the guns out of the closet, sawed them into pieces in the Rodriguez garage and told defendant to dump them into San Francisco Bay. Defendant put the guns into the trunk of his car and, accompanied by Chester Yu, drove to a location on the bay near the airport, where he threw the guns into the water. During the drive defendant told Chester he was quite familiar with the area where he would dispose of the guns, having worked at the nearby Kee Joon’s Restaurant. Chester later led the police to the site and the guns were recovered.

Chester Yu’s testimony was corroborated by independent evidence that defendant had a motive to aid the killers in escaping punishment, namely, to assist fellow Joe Boys in gaining revenge upon the Wah Ching and Hop Sing for the earlier slaying of Felix Huie. San Francisco Police Officer Timothy Simmons, an expert witness on Chinese youth gangs in San Francisco, testified as follows: Defendant was a member of the Joe Boys.² For several years the Joe Boys had been struggling with the Wah Ching and Hop Sing for control of the extortion racket in San Francisco’s Chinatown. The gang warfare had resulted in 50 murders and assaults, each incident leading to further retaliation. Two months before the Golden Dragon incident, four Joe Boys were shot in a battle between that gang and the other two at the Ping Yuen housing project. One of the Joe Boys, Felix Huie, died. Defendant along with other Joe Boys attended Huie’s funeral.

Chester Yu’s testimony was further corroborated by the testimony of Burt Rodriguez, Sandra Rodriguez and Peter Cheung. Their testimony bore upon defendant’s opportunity to commit the crimes. According to Burt and Sandra Rodriguez, the Joe Boys, whom they did not know to be gang members, had free access to their house. Burt testified the killers, as well as other Joe Boys, were in the house when he went to sleep that Saturday night and were still there when he awoke Sunday morning. Peter Cheung also testified the killers were at the Rodriguez residence Saturday night. Burt testified the Joe Boys brought the murder weapons to his house a month before the killings and that, as far as he knew, the guns were still in the closet that Saturday night. Peter Cheung testified the guns were in the closet that night. Sandra Rodriguez testified defendant brought wonton soup to the house Sum day morning; Burt could not positively identify defendant as the person who brought the soup but testified defendant was similar in appearance to that person. Burt testified the guns were not in the closet Sunday evening.

Finally, the assistant manager of Kee Icon’s Restaurant testified defendant had been employed there in May of 1977.

Because the corroborating evidence does tend to connect defendant with the commission of the crimes of which he has been convicted, we must uphold the jury’s verdict. (People v. Perry, supra, 7 Cal.3d at p. 774.)

We now consider defendant’s other contentions.

Defendant contends he was denied his right to a speedy trial under section 1382. Under that section, if a defendant is not brought to trial within 60 days after the filing of the indictment or the information, the action must be dismissed “unless good cause to the contrary is shown.” The information in this case was filed on 19 July 1978. Trial began on 3 October 1978, having been continued beyond the 60-day period on the People’s motion and over defendant’s objection. What constitutes good cause for delay is a matter lying within the sound discretion of the trial court. (People v. Johnson (1980) 26 Cal.3d 557, 570 [162 Cal.Rptr. 431, 606 P.2d 738]; In re Lopez (1952) 39 Cal.2d 118, 120 [245 P.2d 1].) The trial court did not abuse its discretion in granting the two-week delay here. To convict defendant of being an accessory to the Golden Dragon slayings, the People had to prove, among other elements, the underlying felonies. (See § 32; People v. Prado (1977) 67 Cal.App.3d 267, 271 [136 Cal.Rptr. 521]; People v. Hardin (1962) 207 Cal.App.2d 336, 341 [24 Cal.Rptr. 563].) The witnesses and physical evidence required in proving those felonies were unavailable before the 60-day period expired, being tied up, first, in the trial of Curtis Tam (16 Aug. 1978 to 5 Sept. 1978) and then of Melvin Yu (6 Sept. 1978 to 26 Sept. 1978). The two-man team that prosecuted all of the Golden Dragon cases began this trial just one week after concluding the Melvin Yu prosecution. Clearly, good cause was shown for the brief delay.

Defendant contends the delay was unnecessary because he offered to stipulate to the underlying felonies. The People are not required to accept a stipulation that is ambiguous in form or limited in scope or that would deprive them of the legitimate force of material evidence. (People v. Hall (1980) 28 Cal.3d 143, 153 [167 Cal.Rptr. 844, 616 P.2d 826]; Fuentes v. Tucker (1947) 31 Cal.2d 1, 7 [187 P.2d 752].) The stipulations offered by defendant were clearly unacceptable. In opposing the continuance, defendant offered to stipulate that “five people were killed and eleven people were wounded at the Golden Dragon on September 4, 1977.” During the trial, after five witnesses had testified for the People, defendant objected to further testimony on the grounds it would be cumulative, offering to stipulate “there were three principals inside the restaurant.” The proffered stipulations were obviously inadequate in that they did not cover, for example, the identities of the principals, the gang affiliation of the principals or the fact that members of rival gangs were in the restaurant.

Under a separate argumentative heading, defendant makes a related claim—that evidence relating to the murders was cumulative and inflammatory. It was neither.

In another related claim, defendant, relying on People v. Modesto (1967) 66 Cal.2d 695 [59 Cal.Rptr. 124, 427 P.2d 788], contends the prosecutor engaged in prejudicial misconduct by referring to the fact that Curtis Tam and Melvin Yu had been convicted of charges arising out of the Golden Dragon killings. Defendant’s reliance on Modesto is misplaced. The defendant in Modesto was being tried for the third time for the same murders, death penalty judgments in the two previous trials having been reversed on appeal, for instructional error in the first trial and for Escobedo³ error in the second. In the third trial the prosecutor improperly referred to the prior trials, arguing to the jury that 24 other jurors and 2 other trial judges had been convinced of the defendant’s guilt and had sentenced him to death. “In thus invoking the beliefs of other judges and juries, predicated upon evidence with which defendant was not confronted at the instant trial, counsel for the prosecution clearly overstepped the bounds of permissible argument. Whatever the guilt of the defendant, he is surely entitled to a trial uninfected by hearsay references to conclusions which others have reached on the basis of unspecified evidence, much of which has subsequently been ruled improper, and none of which defendant could effectively challenge in the present trial.” (66 Cal.2d at pp. 715-716, fns. omitted.) This case is clearly distinguishable from Modesto. Without belaboring the obvious, suffice it to say that defendant did not and does not claim that Curtis Tam and Melvin Yu were innocent. Therefore, any error in referring to their convictions was plainly harmless.

Defendant contends the trial court erred in denying his motion for change of venue based on prejudicial pretrial publicity. A change of venue must be granted when the defendant shows a reasonable likelihood that in the absence of such relief a fair trial cannot be had. (People v. Welch (1972) 8 Cal.3d 106, 113 [104 Cal.Rptr. 217, 501 P.2d 225]; Frazier v. Superior Court (1971) 5 Cal.3d 287, 294 [95 Cal.Rptr. 798, 486 P.2d 694]; Maine v. Superior Court (1968) 68 Cal.2d 375, 383 [66 Cal.Rptr. 724, 438 P.2d 372].) Whether raised on petition for writ of mandate or on appeal from judgment of conviction, the reviewing court must independently examine the record and determine de novo whether a fair trial is or was obtainable. (People v. Welch, supra, 8 Cal.3d 106; People v. Tidwell (1970) 3 Cal.3d 62, 68-69 [89 Cal.Rptr. 44, 473 P.2d 748]; Maine v. Superior Court, supra, 68 Cal.2d 375, 383.) The factors to be considered are the nature and gravity of the offense, the nature and extent of the news coverage, the size of the community, the status of the defendant in the community, and the popularity and prominence of the victim. (People v. Salas (1972) 7 Cal.3d 812, 818 [103 Cal.Rptr. 431, 500 P.2d 7, 58 A.L.R.3d 832].)

Each of the aforementioned factors supported denial of the motion. Although the Golden Dragon massacre was an incident of the utmost gravity, defendant’s involvement in it was peripheral, limited to disposing of the murder weapons. The only showing made by defendant as to the nature and extent of the news coverage was a single newspaper article concerning the conviction of Melvin Yu, which mentioned—in the 22d paragraph—that defendant was awaiting trial on the instant charges. Indeed, defendant was not tried in San Francisco, where the murders occurred, but in San Mateo County, where the murder weapons were disposed of. San Mateo is a populous metropolitan county. Defendant was apparently a stranger to that community, but no more so than were the victims. Moreover, examination of the voir dire clearly reveals pretrial publicity had no prejudicial effect. (See Murphy v. Florida (1975) 421 U.S. 794, 800-802 [44 L.Ed.2d 589, 594-596, 95 S.Ct. 2031]; People v. Sommerhalder (1973) 9 Cal.3d 290, 303-304 [107 Cal.Rptr. 289, 508 P.2d 289].) The motion for change of venue was properly denied.

Having qualified as an expert on Chinese youth gangs in San Francisco, Officer Simmons testified that defendant, like the principals in the Golden Dragon killings, was in his opinion a member of the Joe Boys gang. The stated purpose of this evidence was to prove that defendant had a motive to conceal the murder weapons—to help fellow gang members escape justice. Defendant’s contention on this point is captioned: “Officer Simmons was improperly qualified as an expert on Chinese gangs.” However, defendant’s real quarrel is not with the officer’s qualifications as an expert witness. Rather, relying on In re Wing Y. (1977) 67 Cal.App.3d 69 [136 Cal.Rptr. 390], defendant argues that Officer Simmons’ testimony concerning defendant’s membership in the Joe Boys gang should have been excluded on the ground it was based on inadmissible hearsay.

In Wing Y., in an attempt to impeach the credibility of the defendant’s alibi witnesses by showing bias, the People called a police officer who testified that the defendant and his alibi witnesses were reputed in the Chinatown community of Los Angeles to be members of the Wah Ching gang. The Court of Appeal held that the trial court erred in overruling the defendant’s hearsay objection to this reputation evidence. “Officer Lou was competent to testify as to the membership in the Wah Ching gang of Lee, Tam and the minor Wing, but only from personal knowledge. Thus, Evidence Code section 702, subdivision (a), provides that, unless the matter pertains to the subject of expert testimony, ‘the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter.’ (Italics added.)” (67 Cal.App.3d at p. 78.) Pointing out that experts may in certain circumstances give opinion testimony not based on personal knowledge (Evid. Code, § 801, subd. (b)), the People seek to distinguish Wing Y. on the ground that the police officer in that case, unlike Officer Simmons, did not testify as an expert witness. We need not resolve this question because defendant did not preserve the issue for appeal by a timely and specific objection in the trial court. (See Evid. Code, § 353; People v. Rogers (1978) 21 Cal.3d 542, 547-548 [146 Cal.Rptr. 732, 579 P.2d 1048].) On cross-examination of Officer Simmons, defendant determined that his opinion that defendant was a Joe Boy was based in part on the ground that he had been so informed by admitted Joe Boys, including Chester Yu, Peter Cheung and Gan Wah Woo. At this point, under the theory he now advances, defendant should have moved to strike the relevant portion of Simmons’ testimony on the ground it was based on inadmissible hearsay. This defendant failed to do.

Defendant contends the trial court unduly restricted his cross-examination of Chester Yu. Defendant sought to impeach Yu’s credibility by demonstrating inconsistencies between his trial testimony and an earlier tape-recorded conversation with Officer McKenna. The jury was permitted to listen to several portions of the recording, but not a portion assertedly dealing with Yu’s movements after he disposed of the guns. Permission to play this passage was denied on the ground it was not inconsistent with Yu’s testimony at trial. Whether the court erred in so ruling cannot be determined from the record on appeal. Prior to ruling, the court listened to the passage in question during a reported conference in chambers. However, defendant has not provided us with a transcript of that proceeding. The cassette tape recording containing the conversation between Yu and Officer McKenna has been lodged with this court. However, that exhibit, defendant’s exhibit No. A, was never admitted into evidence, no motion to introduce it having been made. We cannot on this record conclude that the trial court erred.

In a related contention, defendant complains he was not permitted to impeach Yu’s credibility through the testimony of Frank Sheehan. Sheehan was called by the defense and asked to relate a conversation he had with Yu concerning the testimony Yu would give in defendant’s case. Upon hearsay objection, defense counsel made an offer of proof—that Sheehan would testify that Yu said he “was being pressured by the District Attorney into testifying and that if he didn’t testify he would get five years to life on each count.” The People pointed out that the out-of-court statement was not admissible under the prior inconsistent statement exception to the hearsay rule because it was consistent with Yu’s testimony concerning the plea bargain and his motivation for testifying, and that no other exception to the hearsay rule was applicable. Defense counsel conceded the statement was consistent with Yu’s testimony. The objection was properly sustained. Moreover, any error was harmless for the very reason that Yu’s prior statement was consistent with his present testimony. To the extent that his prior statement concerning his motivation in testifying would have impeached his credibility, he had already been impeached by his in-court admissions in that regard.

Defendant contends the prosecutor committed prejudicial error by revealing to the jury, in the course of cross-examination, that defendant had refused to discuss the charges when questioned by police. The statement of which defendant complains was made under the following circumstances. On direct examination defense counsel asked Officer Fred Lau a number of questions concerning his having acted as an interpreter for Chester Yu when Yu was interviewed by the police. Counsel then asked Lau whether he had also interpreted for defendant. Lau responded affirmatively. Counsel next inquired whether defendant had been released at the conclusion of the interview. Lau replied that he had been. Believing that counsel, had created the false impression (1) that defendant had made a statement to the police on this occasion, and (2) that on the basis of this supposed statement the police had decided to release defendant, the prosecutor asked Lau: “Isn’t it a fact that he refused to talk about the Golden Dragon incident whatsoever in that questioning?” Defense counsel objected, citing Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229], which holds that comment upon a defendant’s failure to testify is error. The objection was sustained. At the conclusion of the trial, the jury was instructed, in accordance with CALJIC No. 1.02, that a question is not evidence and may be considered only as it supplies meaning to an answer, and that as to any question to which an objection was sustained, they were not to speculate as to what the answer might have been or as to the reason for the objection. Any harm flowing from the alleged misconduct was thereby cured.

Defendant contends the prosecutor also committed Griffin error in closing argument. Cliff Tam testified for the defense that he was working with defendant in a restaurant until midnight on Saturday, 3 September 1977. In argument the People merely pointed out that the defense had not produced alibi witnesses for the crucial period—the following day when the murder weapons were dumped into the bay. Defendant’s objection was properly overruled. Although Griffin prohibits reference to a defendant’s failure to take the stand in his own defense, that rule does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. (People v. Vargas (1973) 9 Cal.3d 470, 475 [108 Cal.Rptr. 15, 509 P.2d 959].)

Defendant’s remaining assignments of prosecutorial misconduct during jury argument clearly lack merit, no objection having been made, in most instances, on the ground now urged on appeal.

Relying on In re Lewallen (1979) 23 Cal.3d 274 [152 Cal.Rptr. 528, 590 P.2d 383], defendant contends the trial court penalized him for exercising his right to jury trial by imposing a more severe sentence than had been proffered during plea negotiations. Defendant was sentenced to two years in state prison—the middle term—on each of the two counts (§§ 18, 32, 12020), execution of sentence on the conviction of possessing a sawed-off shotgun being stayed pending appeal, the stay to become permanent upon completion of service of the sentence on the accessory conviction. In an affidavit attached as an exhibit to the opening brief, counsel on appeal, who was also trial counsel, alleges that a superior court judge, not the judge who ultimately sentenced defendant, offered to let him plead guilty to one count on the understanding he would not be sentenced to prison. Matters not presented by the record cannot, of course, be considered on the suggestion of counsel in briefs or in affidavits attached thereto. (People v. Washington (1969) 71 Cal.2d 1061, 1086 [80 Cal.Rptr. 567, 458 P.2d 479]; People v. Merriam (1967) 66 Cal.2d 390, 397 [58 Cal.Rptr. 1, 426 P.2d 161].) Moreover, even if counsel’s allegations were supported by the record, he still would not have stated a claim for relief under Lewallen for he admits the sentencing judge did not say anything reasonably giving rise to the inference that he was penalizing defendant for exercising his right to jury trial. The mere fact, if it be a fact, that following trial defendant received a more severe sentence than he was offered during plea negotiations does not in itself support the inference that he was penalized for exercising his constitutional rights.

Contrary to defendant’s contention, there is no evidence in the record that the People were in the least dilatory in granting him discovery.

Defendant’s remaining contentions, most of which involve recasting of contentions already discussed, similarly lack merit.

The judgment is affirmed.

Mosk, J., and Richardson, J., concurred.

1 Statutory references are to sections of the Penal Code unless otherwise noted.

2 Peter Cheung, himself an admitted Joe Boy, also testified that defendant was a Joe Boy.

Cheung’s involvement in the Golden Dragon incident was limited to providing the stolen car used by the killers. He was not involved in any way in the disposal of the weapons. Therefore, as Cheung was not subject to prosecution for the same offense as defendant, Cheung’s testimony, unlike that of Chester Yu, was not that of an accomplice. (Cf. People v. Wallin (1948) 32 Cal.2d 803 [197 P.2d 734].)

3 Escobedo v. Illinois (1964) 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758].