The People v. Tran

Filed 4/29/13
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H036764
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. CC826024)

v.

BA TRAN,

Defendant and Appellant.

I. STATEMENT OF THE CASE
A jury convicted defendant Ba Tran of first degree murder and found that in
committing it he personally discharged a firearm and caused great bodily injury. (Pen.
Code, §§ 187, 12022.53, subds. (b), (c), & (d).) The court sentenced him to an
indeterminate term of 50 years to life. On appeal, he claims the court erred in admitting
testimony about statements defendant‟s brother made to a third party that incriminated
defendant.
We find no error and affirm the judgment.
II. FACTS
Defendant Runs Fronts for Prostitution
Officer Ryan Chan of the San Jose Police Department testified as an expert on
prostitution in Santa Clara County. He said that nail salons, massage parlors, and barber
shops often operate as fronts for prostitution. He explained that an owner will set up the
front business and then delegate the day-to-day operation and security to a manager. The
prostitutes split their earnings with the manager and owner. Officer Chan opined that in
Santa Clara County, Asian gangs were not directly involved in running prostitution
businesses or extorting money from them.
On April 3, 2008, Officers Chan and Dan Anderson of the San Jose Police
Department conducted a sting operation at the Fantasy Salon on East Santa Clara Street
in San Jose. Defendant‟s signature was on the lease for the salon. Officer Anderson
negotiated a sex act with a woman in exchange for marked money. When she offered
him a condom, he feigned heart problems, and defendant told him to leave. Officer Chan
arrested defendant. He found large amounts of cash on his person and in his car. He also
found the address of the Relax Health Spa among defendant‟s papers. He conducted a
sting there, and learned that defendant‟s name was on the lease.1
The Murder
At around 8:00 p.m. on November 17, 2008, Tuyet Tran, defendant‟s mother,
came home. Defendant and his brother Tommy Tran were there.2 Tuyet‟s red Mustang
and a white Camry were parked out front. Defendant left at 8:30 p.m. Tuyet testified
that defendant had long hair on the top and sides of his head. She said that defendant
rarely drove the Mustang, and she denied telling the police that he left that evening in the
Mustang.
Morgan Bruner testified that around 10:30 p.m. that night, he was driving on the
Southwest Expressway and heard a burst of gunshots. He then heard a large engine
revving and saw a red Mustang convertible speed by. The driver, who was its sole

1
In August 2008, Campbell Police officers conducted a sting of the Fantasy Nail
Salon on South Winchester in Campbell. At that time, a prostitute who had accepted
money from an officer for a proposed sex act said that she had given some of it to
defendant.
2
Because defendant, his mother, and his brother share the same last name, we
refer to Tuyet Tran and Tommy Tran by their first names for convenience and clarity and
do not intend the informality as a sign of disrespect.

2
occupant, had very short hair on the sides of his head. Sometime later, Bruner identified
a photograph of a burned out Mustang as the car he had seen.
Melanie Acena lived at the apartment complex near the expressway. She testified
that around 10:30 p.m. that evening, she heard three or four gunshots followed by two or
three more. She looked out the window and saw a man standing in front of a Honda. He
then walked to a red Mustang about 50 feet away, entered, and drove away by himself.
Officer Kevin Laundrie of the San Jose Police Department responded to a report
of gunshots near the expressway. He found a Honda stopped in the middle of the road.
Its hazard lights were blinking, and the driver‟s side window was smashed. Inside, Dieu
Nguyen was slumped over the center console and dead from multiple gunshot wounds.
Sometime later, police searched the victim‟s house. They found an agreement to buy the
Relaxation Health Center from Monica Ho and documents concerning how much money
the victim had paid and the amount she still owed.3
Later that same night, police responded to a report of a burning Mustang. It was
registered to defendant‟s mother. Inside, police found an expended nine millimeter shell
casing consistent with those found at the scene of the murder. All of the shells had been
fired by the same gun.
Very early the next morning, police searched Tuyet‟s house. She initially was
cooperative but became evasive. Police found a letter from Ho, business cards for the
Relaxation Health Center, several driver‟s licenses for Vietnamese women, and a binder
full of money. Tuyet knew Ho and said she was defendant‟s friend or girlfriend. She had
seen them together. Ho‟s nickname for defendant was “King.” Police also found several
gun targets and a live nine millimeter round.
Jim Cook testified as an expert on cell phone sites and call location. He developed
overlapping maps concerning the location of cell phones belonging to defendant,

3
In December 2007, Nguyen had been arrested for prostitution, and in May 2008,
she was convicted.

3
Tommy, Johnny Trieu, and Ho. He testified that on the night of the murder, there were a
number of calls from defendant‟s phone to Ho‟s phone from a location between the
victim‟s home and the scene of the shooting. There were calls from defendant‟s phone to
Tommy‟s phone from the scene of the shooting around the time it happened. There were
additional calls from defendant‟s phone to Tommy‟s and Ho‟s phones a few minutes later
from a location near Tuyet‟s residence. Cook also testified that there was a call at
10:53 p.m. from Tommy‟s phone to Trieu‟s phone.
Trieu, who said he was loyal to Tommy and would lie for him, testified that
sometime after 10:00 p.m. that night Tommy called him and later came by and asked if
he wanted to go some place to talk, drink, and fish. He said that something big had
happened and he needed to burn some clothing. They drove to the Rio Vista area, where
they burned clothing. While there, Tommy told Trieu that defendant had done something
“really bad,” namely, he had shot someone. Tommy also said that he had helped
defendant burn his car. Tommy advised Trieu that if Trieu was questioned by the police,
he should say that they had gone fishing and then slept most of the time.
Trieu testified that they returned to Tommy‟s house the next morning, and both
slept there. Later that morning, they went out for some food and were stopped by the
police. Trieu was scared and did not ask why they had been stopped. Later, at the
station, the police interrogated Trieu, and he told them what had happened.
The Defense
Defendant testified and denied killing Nguyen or helping anyone else kill her. He
admitted being present when she was shot, but he blamed the murder on a Vietnamese
gangster.
Defendant testified that he met Ho at a supermarket in 2006. Over the next six
months they became romantically involved, and he moved in with her. He learned that
she owned a beauty shop in San Jose that was a front for prostitution. Ho changed its
location four or five times between 2006 and 2008. For a few years, defendant worked at

4
Ho‟s salon several hours a day, most days of the week. He provided security, bought
condoms, transported the prostitutes, and handled the cash. He did not consider himself
an employee and denied that Ho paid him. However, he admitted that she regularly gave
him hundreds of dollars in cash.4
Defendant testified that during the time he worked at Ho‟s salon, he paid a
Vietnamese gangster $2,000 per month as protection money for Ho. Defendant declined
to identify the gangster by name or even describe what he looked like for fear the
gangster would kill his family. Defendant said that in 2008, Ho sold her business to
Nguyen for $26,000. He witnessed the transaction. He told Nguyen about having to pay
protection money, but she said she had her own gang members and would not pay the
gangster. After the sale, defendant never saw Nguyen again. When he stopped paying
the gangster, Ho‟s prostitution business in Cupertino was vandalized.
Defendant testified that on the night of the murder, he was at home, and the
gangster showed up with three other gang members in a Ford Explorer. Defendant went
outside, and the gangster said, “Let‟s go for a ride.” Defendant declined, but the gangster
pulled a gun, looked at Tuyet‟s van, and commented that defendant‟s mother was home
from her job at San Jose City College. Defendant became scared. The gangster then
asked for defendant‟s cell phone, and defendant handed it to him.
At this point, defendant entered the Mustang and backed it out of the driveway.
The gangster got into the passenger seat, one of his friends got into the driver‟s seat, and
defendant got into the back. There, gangster took defendant‟s leather jacket, put it on,
and started making calls on defendant‟s phone. The Mustang and Explorer drove to a
Costco parking lot. The gangster made a number of calls, told defendant that he was

4
Defendant testified that he wanted to join the California Highway Patrol (CHP).
He had applied for a position, passed an examination, and was waiting to take a physical.
He said that he sharpened his shooting skills by practicing at a shooting range. However,
he denied having a gun and claimed the target and shell found at Tuyet‟s house were
Tommy‟s.

5
“going to show you what happen[s] when you don‟t pay,” and tossed the phone back to
him. They then drove off. Defendant tried repeatedly, but unsuccessfully to call Ho, tell
her what was happening, and warn her to leave the salon. Finally, she called him back,
and he told her that the gangster was taking him for a ride.
At some point, defendant noticed that they were following a Honda. Suddenly, the
gangster started shooting. They slowed and stopped. The gangster then handed the gun
to the driver and told him to “take care of it.” The driver got out and walked to the
Honda, shooting as he went. He returned, gave the gun to the gangster, and they drove
off. Defendant repeatedly called his brother and hung up as a signal to him.
The Mustang and Explorer entered the 280 freeway, drove to Milpitas, exited, and
stopped on a side street. The gangster got out, threw defendant‟s jacket to him, and told
him to “tell the whore Monica to pay, start paying again or she‟s going to end up like the
whore Tina.” At that moment, defendant knew Nguyen had been murdered. The
gangster then pointed his gun at defendant and pulled the trigger a few times. It did not
fire, and the gangster walked away.
Defendant thought that he was being set up to take the blame for killing Nguyen.
Fearing this, he decided to burn the Mustang, change his appearance, get some money,
and flee to Mexico and then back to Vietnam. To this end, he called Tommy and told
him to get some gasoline and meet him. They met and set fire to the Mustang.
Defendant then went to Ho‟s house, where she cut his hair. From there, he drove to Los
Angeles and used his credit card for cash advances. He testified that he was too scared to
call the police or identify the gangster.
Quyen Mai, a former Vietnamese gang member, testified as a gang expert for the
defense and said that Vietnamese gangs are involved in a variety of crimes, including
robbery, home invasion, homicide, extortion, and drugs. Gangs commonly extort money
from local Vietnamese businesses, including restaurants, bars, massage parlors, and

6
prostitution businesses. They do not allow their victims to stop payments and retaliate
when they do. Gangs might even kill, although he was not aware of that ever happening.
The defense also presented the testimony of a number of witnesses who heard
shots being fired and then saw people and cars. Their testimony was inconsistent
concerning the number of shots, number of cars, number of persons, and types of cars.
III. ADMISSION OF TRIEU’S TESTIMONY CONCERNING TOMMY’S STATEMENT5
Defendant contends that the court erred in admitting Trieu‟s testimony about what
Tommy said to him when they were at Rio Vista.
A. Proceedings Below and Court Ruling
Defendant moved to set aside the information on the ground that in holding him to
answer, the court had improperly relied on Trieu‟s testimony about Tommy‟s statements.
That motion was denied. Thereafter, the prosecution sought a ruling that Trieu‟s
testimony would be admissible at trial. The court granted the motion.
The court opined that Trieu‟s proposed testimony appeared to be double hearsay
because it related statements that defendant had made to Tommy and statements that
Tommy then made to Trieu. The court opined that defendant‟s statements were
admissible under section 1220 as admissions by a party. The court found the statements
by Tommy admissible under section 1230 as statements against Tommy‟s penal interests.
The court acknowledged that the trustworthiness of Tommy‟s inculpatory statements was
the key to their admissibility and that collateral, non-inculpatory statements were not
admissible.
The court found that Tommy‟s statements to Trieu were highly reliable. It noted
that Tommy made them while he was speaking to a friend during a late night trip to a
remote area to burn defendant‟s clothing. The court found additional reliability in the
fact later that the Mustang was found burned, as Tommy had reported to Trieu, and

5
All unspecified statutory references in this section are to the Evidence Code.

7
Tommy was convicted of being an accessory to the murder. The court also noted that the
cell phone records showed that defendant called Tommy around the time of the murder.
Last, the court opined that Tommy‟s statements were not testimonial and did not
implicate defendant‟s constitutional right to confront and cross-examine adverse
witnesses. (See Crawford v. Washington (2004) 541 U.S. 36, 59, fn. omitted [Sixth
Amendment‟s confrontation clause prohibits admission of out-of-court “[t]estimonal
statements of witnesses absent from trial [unless] the declarant is unavailable,” and “only
where the defendant has had a prior opportunity to cross-examine”].)
Later, at trial, the court found that Tommy was unavailable as a witness, and Trieu
testified about what Tommy had said to him.
B. Section 1230
Section 1230 provides, in relevant part, “[e]vidence of a statement by a declarant
having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if
the declarant is unavailable as a witness and the statement, when made, . . . so far
subjected him to the risk of . . . criminal liability . . . that a reasonable man in his position
would not have made the statement unless he believed it to be true.”6 “The proponent of
such evidence must show that the declarant is unavailable, that the declaration was
against the declarant‟s penal interest when made and that the declaration was sufficiently
reliable to warrant admission despite its hearsay character. [Citation.]” (People v.
Duarte (2000) 24 Cal.4th 603, 610-611 (Duarte).)

6
Section 1230 provides, “Evidence of a statement by a declarant having sufficient
knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is
unavailable as a witness and the statement, when made, was so far contrary to the
declarant‟s pecuniary or proprietary interest, or so far subjected him to the risk of civil or
criminal liability, or so far tended to render invalid a claim by him against another, or
created such a risk of making him an object of hatred, ridicule, or social disgrace in the
community, that a reasonable man in his position would not have made the statement
unless he believed it to be true.”

8
 “ „The focus of the declaration against interest exception to the hearsay rule is the
basic trustworthiness of the declaration. [Citations.] In determining whether a statement
is truly against interest within the meaning of Evidence Code section 1230, and hence is
sufficiently trustworthy to be admissible, the court may take into account not just the
words but the circumstances under which they were uttered, the possible motivation of
the declarant, and the declarant‟s relationship to the defendant.‟ [Citation.] „[E]ven
when a hearsay statement runs generally against the declarant‟s penal interest and
redaction has excised exculpatory portions, the statement may, in light of circumstances,
lack sufficient indicia of trustworthiness to qualify for admission. . . . [¶] . . . We have
recognized that, in this context, assessing trustworthiness “ „requires the court to apply to
the peculiar facts of the individual case a broad and deep acquaintance with the ways
human beings actually conduct themselves in the circumstances material under the
exception.‟ ” ‟ [Citation.]” (People v. Geier (2007) 41 Cal.4th 555, 584, implicitly
abrogated on another point in Melendez-Diaz v. Massachusetts (2009) U.S. 305 as
acknowledged in People v. Houston (2012) 54 Cal.4th 1186, 1220.)
“There is no litmus test for the determination of whether a statement is trustworthy
and falls within the declaration against interest exception. The trial court must look to the
totality of the circumstances in which the statement was made, whether the declarant
spoke from personal knowledge, the possible motivation of the declarant, what was
actually said by the declarant and anything else relevant to the inquiry. [Citations.]
[¶] Clearly the least reliable circumstance is one in which the declarant has been arrested
and attempts to improve his situation with the police by deflecting criminal responsibility
onto others. „Once partners in crime recognize that the “jig is up,” they tend to lose any
identity of interest and immediately become antagonists, rather than accomplices.‟
[Citation.] However, the most reliable circumstance is one in which the conversation
occurs between friends in a noncoercive setting that fosters uninhibited disclosures.
[Citations.] [¶] When examining what was actually said by the declarant special

9
attention must be paid to any statements that tend to inculpate the nondeclarant. This is
so because a statement‟s content is most reliable in that portion which inculpates the
declarant. It is least reliable in that portion which shifts responsibility. Controversy
necessarily arises when the declarant makes statements which are self-inculpatory as well
as inculpatory of another. This is why Evidence Code section 1230 only permits an
exception to the hearsay rule for statements that are specifically disserving of the
declarant‟s penal interest. [Citation.] This is not to say that a statement that incriminates
the declarant and also inculpates the nondeclarant cannot be specifically disserving of the
declarant‟s penal interest. Such a determination necessarily depends upon a careful
analysis of what was said and the totality of the circumstances. [Citations.]” (People v.
Greenberger (1997) 58 Cal.App.4th 298, 334-335 (Greenberger); accord, People v.
Cervantes (2004) 118 Cal.App.4th 162, 174-175 (Cervantes).)
When a trial court bases its ruling on a conclusion of law, or a mistake of law, we
review de novo but when we review a ruling admitting or excluding evidence we ask
whether the ruling is an abuse of discretion. (See People v. McWhorter (2009) 47 Cal.4th
318, 362.) In the gradations implied by abuse of discretion we look to the confidene we
have in the correctness of the court‟s ruling. Thus, here we look to the middle ground of
the range. As our high court said in Sargon v. University of California (2012) California
(2012) 55 Cal.4th 747, 773, discretion “must be exercised within the confines of the
applicable legal principles.” The court went on to say: “ „The discretion of a trial judge
is not a whimsical, uncontrolled power, but a legal discretion, which is subject to the
limitations of legal principles governing the subject of its action, and to reversal on
appeal where no reasonable basis for the action is shown.‟ (9 Witkin, Cal. Procedure (5th
ed. 2008) Appeal, § 364, p. 420; see Westside Community for Independent Living , Inc. v.
Obeldo (1983) 33 Cal.3d 348, 355 [quoting this language].) „The scope of discretion
always reside in the particular law being applied, i.e., in the “legal principles governing
the subject of [the] action . . . .” Action that transgresses the confines of the applicable

10
principles of law is outside the scope of discretion and we call such action an “abuse” of
discretion. [Citation.] . . . [¶] The legal principles that govern the subject of
discretionary action vary greatly with context. [Citation.] They are derived from the
common law or statutes under which discretion is conferred.” (City of Sacramento v.
Drew (1989) 207 Cal.App.3d 1287, 1297-1298.) To determine if a court abused its
discretion, we must thus consider “the legal principles and policies that should have
guided the court‟s actions.” (People v. Carmony [(2004)] 33 Cal.4th [367,] 377.)” (Ibid.)
However, we independently review the trial court‟s preliminary determination that
a declarant‟s statements bore sufficiently particularized guarantees of trustworthiness to
be admissible. (Cervantes, supra, 118 Cal.App.4th at pp. 174-175 [de novo review of
whether trustworthiness test is satisfied]; see Lilly v. Virginia (1999) 527 U.S. 116, 137
[independent review of whether guarantees of trustworthiness satisfy the confrontation
clause].)
It is undisputed that Tommy was unavailable at trial, and defendant does not
dispute the trial court‟s finding of unavailability. Thus, the issue is whether Tommy‟s
statements were against his penal interests and sufficiently reliable and trustworthy to be
admitted.
Essentially Trieu related three things: (1) Tommy said that he helped defendant
burn the Mustang; (2) Tommy said that defendant had done something “really bad”; and
(3) Tommy said that defendant had shot someone.
Tommy‟s assertion that he helped defendant burn the Mustang was against his
penal interest because it rendered him potentially liable for arson. (Pen. Code, § 451.)
Tommy‟s next assertions that defendant had done something bad and had shot someone
were not, standing alone, against Tommy’s penal interests. However, we must view those
assertions in context. (Duarte, supra, 24 Cal.4th at p. 612; Greenberger, supra, 58
Cal.App.4th at p. 335.) So viewed, the two assertions revealed Tommy‟s knowledge that
defendant had committed a crime. Thus, Tommy‟s three assertions taken together as a

11
single statement were incriminating because they rendered him potentially liable as an
accessory to murder. (Pen. Code, § 32.) Specifically, the entire statement was
compelling evidence that Tommy knowingly and purposefully assisted defendant in
destroying evidence to help defendant escape arrest, prosecution, and punishment for a
shooting. Indeed, Tommy‟s two assertions about what defendant had done were an
inextricable part of what made his entire statement to Trieu contrary to his penal interests.
(See People v. Samuels (2005) 36 Cal.4th 96, 120-121 [incriminating references to
another person were inextricably tied to specific statement against declarant‟s penal
interest].) Moreover, Tommy further inculpated himself as an accessory by going to a
remote area to burn defendant‟s clothing.7
In Wilson, supra, 17 Cal.App.4th 271, the defendant was charged with a shooting.
Before trial, his wife told the police that the defendant had called her from the jail, told
her where to find the gun, and gave her instructions on how to dispose of it. She told the
police that she had followed his directions. (Id. at p. 274.) At the defendant‟s trial, his
wife invoked the marital privilege and declined to testify. (Ibid.) The trial court then
permitted the prosecution to introduce the wife‟s statements to the police as declarations
against her penal interest on the theory that they incriminated her as an accessory. (Id. at
p. 275.)

7
“The crime of accessory consists of the following elements: (1) someone other
than the accused, that is, a principal, must have committed a specific, completed felony;
(2) the accused must have harbored, concealed, or aided the principal; (3) with
knowledge that the principal committed the felony or has been charged or convicted of
the felony; and (4) with the intent that the principal avoid or escape from arrest, trial,
conviction, or punishment.” (People v. Plengsangtip (2007) 148 Cal.App.4th 825, 836;
e.g., People v. Wilson (1993) 17 Cal.App.4th 271, 276 (Wilson).)
As the parties note, Tommy was charged and pleaded guilty to being an accessory.
In pleadings below, the parties agreed that Tommy had pleaded guilty to being an
accessory. Thereafter, he failed to appear at defendant‟s preliminary hearing, he failed to
report to parole, and the prosecution was unable to locate him.

12
 On appeal, the defendant claimed the statements were not specifically against his
wife‟s penal interests. The court disagreed. It noted that accessory liability attaches only
to a person who acts with knowledge that a principal has committed or been charged with
the commission of a felony. The court reasoned that the defendant‟s statements to his
wife established her knowledge that the defendant had committed the shooting. Thus, the
entire statement the wife made to the police was disserving of her penal interests.
(Wilson, supra, 17 Cal.App.4th at p. 276.) The court acknowledged that her statement
was also disserving to the defendant. However, the court opined that that did not render
her statement unreliable and inadmissible. (Ibid.)
Here too, Tommy‟s statement entire was inculpatory as were his statements about
burning defendant‟s clothing. The fact that Tommy‟s statement also implicated
defendant did not render it unreliable or inadmissible.
Moreover, the circumstances under which Tommy confided to Trieu are
compelling indicia of reliability and trustworthiness. Tommy knew of defendant‟s crime,
he helped defendant burn the Mustang, and he apparently agreed to burn defendant‟s
clothing as well. Despite the incriminating nature of this information, Tommy called
Trieu, a trusted friend, and asked for his assistance. Together, they went to a remote
place, where Tommy could speak freely and in confidence. He then made the
incriminating statements about helping defendant cover up what defendant had done and
needing to burn defendant‟s clothing. As noted, the circumstance most indicative of
reliability is where an incriminating conversation occurs between friends in a
noncoercive setting that fosters uninhibited disclosures. (Greenberger, supra, 58
Cal.App.4th at p. 335.) Moreover, the timing and urgency of Tommy‟s conduct further
support the reliability of his statement.
Defendant claims that although Tommy‟s statement is facially inculpatory, it was
actually self-serving and exculpatory. He asserts that when Tommy spoke to Trieu, he
was potentially liable for arrest and prosecution as a coconspirator with defendant for the

13
murder of Nguyen. Thus, according to defendant, Tommy had an interest in avoiding
serious liability for conspiracy, and this provided a motivation to make defendant seem
solely responsible for the murder and to claim that he merely helped defendant burn the
car after the fact. Indeed, defendant suggests that in asking Trieu to join him at Rio
Vista, Tommy was using Trieu to help construct a defense to a conspiracy charge. Thus,
given Tommy‟s self-interest and motivation at the time he made his statement, defendant
argues that the statement is wholly unreliable and untrustworthy and that the trial court
erred in finding otherwise.8 (See Duarte, supra, 24 Cal.4th 603, 612 [“[e]ven a hearsay
statement that is facially inculpatory of the declarant may, when considered in context,
also be exculpatory or have a net exculpatory effect” that renders it unreliable and
inadmissible].)
First, the notion that Tommy‟s statement was motivated by fear of potential
liability as defendant‟s coconspirator is, in our view, far fetched.
A conspiracy is an agreement by two or more persons to commit an offense with
the specific intent to commit the elements of the offense, coupled with an overt act by
one or more of the conspirators in furtherance of the conspiracy. (Pen. Code, §§ 182,
subd. (a)(1), 184; People v. Jurado (2006) 38 Cal.4th 72, 130; People v. Russo (2001) 25
Cal.4th 1124, 1131.) “To prove an agreement, it is not necessary to establish the parties
met and expressly agreed” to commit the target offense. (People v. Vu (2006) 143
Cal.App.4th 1009, 1025.) Rather, “ „a criminal conspiracy may be shown by direct or
circumstantial evidence that the parties positively or tacitly came to a mutual
understanding to accomplish the act and unlawful design.‟ ” (Ibid., quoting People v.
Brown (1969) 272 Cal.App.2d 623, 628.) Thus, “ „a conspiracy may be inferred from the

8
Defendant did not advance this theory in opposition to the admission of Trieu‟s
testimony about Tommy‟s statement. However, we do not treat the omission as a
forfeiture of the argument because, as noted, we independently review whether
statements bear sufficiently particularized guarantees of trustworthiness to be admissible.
(Cervantes, supra, 118 Cal.App.4th at pp. 174-175.)

14
conduct, relationship, interests, and activities of the alleged conspirators before and
during the alleged conspiracy. [Citations.]‟ ” (People v. Rodrigues (1994) 8 Cal.4th
1060, 1135; People v. Herrera (2000) 83 Cal.App.4th 46, 64.)
According to defendant, Tommy faced possible prosecution for conspiracy to kill
Nguyen because: (1) before the killing, Tommy and defendant were together at Tuyet‟s
house; (2) shortly after the killing, defendant called Tommy, told him to bring gasoline,
and they burned the Mustang; and (3) later, Tommy went to Rio Vista to burn
defendant‟s clothing.
It is settled that mere association and suspicion of criminal conduct is not enough
to establish a conspiracy or even an agreement; there must be some evidence to
demonstrate that the association is also a conspiracy. (People v. Powers-Monachello
(2010) 189 Cal.App.4th 400, 419; People v. Lowery (1988) 200 Cal.App.3d 1207, 1218;
People v. Hardeman (1966) 244 Cal.App.2d 1, 41.) For example, in United States v.
Penagos (9th Cir.1987) 823 F.2d 346, the court found that the defendant was present
when the drug dealer loaded and unloaded cocaine in automobiles and later was a
passenger in a car that delivered some cocaine insufficient to link the defendant to a drug
conspiracy. (Id. at p. 351. e.g., People v. Samarjian (1966) 240 Cal.App.2d 13, 17;
People v. Zoffel (1939) 35 Cal.App.2d 215, 225.)
On the other hand, where there is some evidence that a person participated in
committing the target offense or had an interest in its commission, such evidence together
with evidence of association can be sufficient to support an inference of a conspiracy to
commit that offense. (People v. Consuegra (1994) 26 Cal.App.4th 1726, 1734; People v.
Ordonez (1991) 226 Cal.App.3d 1207, 1232; People v. Lipinski (1976) 65 Cal.App.3d
566, 575; People v. Hardeman, supra, 244 Cal.App.2d at p. 41.)
Here, the evidence of Tommy‟s association with his brother is minimal and
undefined. There is no evidence of what they did or said at the house before defendant
left; no evidence that Tommy knew where defendant was going or what he intended to do

15
when he left; and no evidence that Tommy did anything before defendant called him that
advanced or facilitated the murder or suggested that Tommy harbored an intent to
facilitate that crime. Moreover, there is no evidence that Tommy was involved in the
prostitution business in general or in defendant and Ho‟s business in particular; no
evidence Tommy knew that Nguyen had bought Ho‟s business; no evidence suggesting
that Tommy had some personal reason to kill Nguyen or interest in having her killed; and
no evidence Tommy even knew who Nguyen was before she was murdered.
In short, the evidence supports a strong inference that after the murder, Tommy
agreed to help defendant by burning the Mustang and then defendant‟s clothing.
However, the evidence permits only speculation that Tommy and defendant agreed in
advance to kill Nguyen. And it is speculation based on speculation to further infer that
Tommy‟s voluntary, self-incriminating statements in confidence to his friend Trieu about
being an accessory were motivated by a desire to avoid greater liability as a co-
conspirator.
Having independently reviewed Tommy‟s statement and all of the surrounding
circumstances (Cervantes, supra, 118 Cal.App.4th at pp. 174-175), we do not find that
Tommy‟s statements were too unreliable and untrustworthy to be admitted as statements
against his penal interests. Accordingly, admitting them was not an abuse of discretion.
We further note that defendant‟s theory of unreliability is not that Tommy faced
sole liability for killing Nguyen and thus had a motive to falsely accuse defendant and
shift total responsibility from himself to defendant. Defendant‟s admitted presence
during the shooting and Tommy‟s absence precludes such a theory. Rather, defendant‟s
theory of unreliability is that Tommy and defendant agreed to kill Nguyen sometime
before defendant left to kill her, and for that reason, Tommy and defendant faced shared
liability as coconspirators. Thus, the viability of defendant‟s conspiracy theory depends
on defendant‟s involvement as a coconspirator in the killing. Certainly, Tommy‟s alleged
interest in avoiding shared liability would taint assertions designed to make it seem as if

16
defendant was solely responsible for the killing and had acted alone. However, we fail to
see how an interest in avoiding shared liability undermines assertions that defendant was
involved and shot Nguyen. Indeed, defendant‟s theory appears to depend on the
reliability of his assertions that defendant was involved as a coconspirator. Thus, even if
the evidence reasonably supported an inference that Tommy and defendant conspired to
kill Nguyen, we would not find that Tommy‟s interest in avoiding coconspirator liability
rendered his statement to Trieu unreliable and untrustworthy.
C. Section 12209
Defendant claims that even if Tommy‟s statement was reliable, the court
nevertheless erred insofar as it found Tommy‟s assertions that defendant had done
something big and had shot the victim admissible as admissions by a party under
section 1220. As defendant correctly notes, Trieu testified that Tommy directly told him
that defendant had done something big and had shot someone; Trieu did not testify about
what Tommy said defendant said to him.
It appears that before trial, during the hearing on the admissibility of Trieu‟s
testimony, the prosecutor proceeded on the theory that defendant told Tommy what he
had done, Tommy then told Trieu what defendant had said he had done, and Trieu would
testify that Tommy told him what defendant had said. This view of Trieu‟s proposed
testimony explains the court‟s view that Trieu‟s testimony contained double hearsay:
what defendant said to Tommy; and what Tommy said to Trieu. At trial, Trieu‟s
testimony was simply that Tommy said what defendant had done. For this reason, we
agree that those particular statements by Tommy were not admissible under section 1220
as admissions by a party.

9
Section 1220 provides, “Evidence of a statement is not made inadmissible by the
hearsay rule when offered against the declarant in an action to which he is a party in
either his individual or representative capacity, regardless of whether the statement was
made in his individual or representative capacity.”

17
 Nevertheless, as discussed above, all three components of Tommy‟s statement to
Trieu were admissible and properly and expressly admitted under section 1230 as
statements against Tommy‟s penal interests. Accordingly, any alleged error in ruling that
two of the components were admissions under section 1220 was harmless. (People v.
Watson (1956) 46 Cal.2d 818, 836.)
IV. DISPOSITION
The judgment is affirmed.

______________________________________
RUSHING, P.J.

WE CONCUR:

____________________________________
PREMO, J.

____________________________________
ELIA, J.

People v. Tran
H036764

18
Trial Court: Santa Clara County
Superior Court No.: CC826024

Trial Judge: The Honorable Ron M. Del Pozzo

Attorney for Defendant and Appellant Eric Weaver
Ba Tran: under appointment by the Court of
Appeal for Appellant

Attorneys for Plaintiff and Respondent Kamala D. Harris
The People: Attorney General

Dane R. Gillette,
Chief Assistant Attorney General

Gerald A. Engler,
Senior Assistant Attorney General

Seth K. Schalit,
Supervising Deputy Attorney General

Dorian Jung,
Deputy Attorney General

People v. Tran
H036764

19