People v. Van Quan

96 Cal.App.5th 524

314 Cal.Rptr.3d 618

The PEOPLE, Plaintiff and Respondent,

v.Quang Van QUAN, Defendant and Appellant.

G061191

Court of Appeal, Fourth District, Division 3, California.

Filed October 17, 2023

Mary K. McComb, State Public Defender, and Cristina Najarro, Deputy State Public Defender, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

GOETHALS, J.

In October 2010, a jury convicted Quang Van Quan of three counts of first degree murder and found true two felony murder special circumstance allegations that the murders took place during the commission of a burglary, robbery, or attempted robbery. ( Pen. Code,¹ §§ 187, subd. (a), 190.2, subd. (a)(17)(A) [robbery], (a)(17)(G) [burglary].) Following the enactment of Senate Bill No. 1437 (2017-2018 Reg. Sess.; Senate Bill 1437), Quan filed a petition in which he requested resentencing pursuant to section 1170.95 (now section 1172.6) based on changes made by the Legislature to limit accomplice liability under the felony murder rule and the natural and probable consequences doctrine. The trial court held an evidentiary hearing on Quan's petition (§ 1172.6, subd. (d)(3)) and found Quan was ineligible for resentencing. He now appeals.

In his briefing, Quan raises numerous claims of error by the trial court: he challenges the court's findings at the evidentiary hearing to support his conviction of first degree murder under a valid theory of felony murder; he contends the trial court could not reasonably find he was a major participant in the commission of the underlying offenses, nor could it find he acted with reckless disregard for human life in committing those offenses; and he challenges the trial court's denial of his resentencing petition to the extent it rested on a finding he was guilty of murder based on "the existence of implied malice" and aider-abettor liability. Quan also argues the trial court failed to consider and articulate the relevant factors for its major participant and reckless indifference findings consistent with governing case law; failed to conduct an independent review of the evidence as the trier of fact at the hearing; and failed to apply the beyond a reasonable doubt standard of proof.

But we address none of these issues because Quan is correct that his constitutional and statutory rights to be personally present at the hearing were violated, and we agree the error was not harmless beyond a reasonable doubt. We therefore reverse the trial court's order denying his resentencing petition and remand for a new evidentiary hearing consistent with the principles stated herein.

FACTUAL AND PROCEDURAL BACKGROUND

We provide only a limited summary of the facts because, in light of our decision to reverse the trial court's denial of Quan's petition and remand the case for a new evidentiary hearing, the trial court will be required to "review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard." ( People v. Clements (2022) 75 Cal.App.5th 276, 298, 290 Cal.Rptr.3d 395.) "On May 29, 2006, Garden Grove police officers found the bodies of Phong Le, his wife Trisha Lam, and Lam's six-year-old son Tommy in separate upstairs bedrooms of the family's Garden Grove home." ( People v. Quan (June 21, 2012, G044609) 2012 WL 2356701 [nonpub. opn.].)

"The victims suffered numerous shallow and deep stab wounds to the head, neck, and back, which [the coroner testified at trial] would have caused extreme pain and suffering. The assailant or assailants bound the victims' hands with wire, and stuffed a baby's bib in Lam's mouth.... Lam had clenched her fist tight enough to drive her fingernails into her palm. The officers found the couple's infant daughter[, who was] Quan's goddaughter, in the master bedroom dehydrated and soiled in urine and feces but otherwise unharmed. The front door was unlocked and there was no sign of forced entry.

"Le, a former member of the Oriental Boys gang, had recently told a friend ... he felt anxious because he owed people money, and they were after his family and him. Security cameras and monitors were placed throughout Le's residence, and he had recently changed the locks. Le carried a gun in his waistband, which he sometimes kept under a mattress.

"Quan, a [former] associate of a different gang, and Le met each other in prison in the 1990s. In May 2006, Quan lived in Houston, Texas. On May 17 or May 19, 2006, he visited probation and immigration authorities in Los Angeles.

"Cellular tower records [indicated a large number of telephone calls between Le and Quan on May 26, and also showed his presence at Le's home on May 26, 2006, the night of the murders. The records] showed that on May 26 at 7:50 p.m., Quan's cell phone received a call from a cell phone belonging to Quan's wife, [MH], from the vicinity of Rosemead, California.... At 10:55 p.m., Quan, using [MH's] cell phone near Le's home, left a voicemail message on Le's cell phone in Vietnamese: ‘Phong, call me back, okay. The kid has a problem. We need to have a place tonight. All right. A mi. Call me back tonight.’ ...

"Alerted by [Lam's] coworker [when she did not show up for work the following Monday], Garden Grove police officers made a welfare check at [the Le] home on May 29th and discovered the bodies. The Le's master bedroom had been ransacked. The safe was open and two of the victims' cell phones, and a laptop computer, were missing. Cabinet doors in the upstairs bathrooms were open. Investigators found a gun under the mattress in the southeast bedroom, where Le's body was found. [A]n IOU from Le to Quan [was located] on a desk. [The officers] also found baggies, drug pipes, and a drug scale in the southeast bedroom, and a pair of latex gloves, one inside the other with a rubber band around the wrist area behind a door. DNA on the exterior of the gloves came from Le, Lam, and Tommy, and the DNA on the interior of the gloves belonged to an unknown person. In the kitchen, investigators found $66,000 in gold Krugerrand coins hidden in a cabinet. Le had methamphetamine in his system at the time of his death.

"In early June 2006, Garden Grove police officers travelled to Houston. They found Quan conducting a garage sale at his residence....

"Officers arrested Quan on July 12, 2006. They interviewed him on several occasions after he waived his Miranda ( Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ) rights. In a July 12 interview, Quan claimed he had last seen Le in Garden Grove in March. He considered Le family, and Le was godfather to Quan's son. Quan said Le owed a man named Tam money, and Tam had people ‘sweating’ Le for repayment. Le also owed money to the owner of a local business called Magic Mattress, and a Black Dragon gang member nicknamed ‘Saigon’ was demanding repayment of $40,000 or $80,000. Quan sold his van and borrowed money from friends to loan Le about $80,000. In May, he came to California to check in with immigration officials. He stayed a few days to a week before returning to Texas.

"Later in the interview, Quan acknowledged Le gave him an IOU. To make the loan, Quan claimed he had borrowed the money from an organized crime boss named Peter Geo Wang (Peter). Quan described Peter as dangerous. The gangsters warned Quan and Le to repay the money quickly and threatened to kill them and their famil[ies if they did not comply].

"After the officers confronted Quan with the cell phone records, Quan explained he took Peter, ‘Fat Boy,’ and another man to Le's house, but Le was not home. Quan phoned Le to tell him the men wanted to speak with him. Le arrived home a short time later. Quan initially stated he waited outside while the men spoke with Le in the driveway before accompanying Le inside. While he waited outside, [Quan] phoned his wife, [and] then departed....

"During a July 14 interview, ... Quan asserted it was Peter and his cohorts who called Quan on a prepaid cell phone. Quan merely took them to Le's house to discuss Le's $80,000 debt to Peter.... Quan then drove to Le's house and the others followed in another vehicle.... Quan claimed he stayed outside. After a while, Le emerged from his house and told Quan the men wanted to know where the money was located. Le then asked Quan to leave.

"... [W]hen pressed by the detectives, [Quan] admitted he entered the house after Le came outside. Le angered the men when, pressed about repayment, he exclaimed, ‘Fuck it. When I have it, then I will pay it.’ Peter and Le directed Quan to leave the house. Quan denied knowing the men intended to kill Le.

"During a second interview later in the day on July 14, ... Quan [said he] asked the men ‘what [are] you guys doing?’ Peter responded, ‘none of your fucking business,’ and told Quan to ‘[g]et the fuck out of here, it's none of your concern now.’ Quan departed.... Quan insisted Peter told him they only wanted to talk to Le about repayment and he had no idea the men intended to rob, burglarize, or murder Le and his family. ( People v. Quan, supra , G044609.)

The jury convicted defendant Quan of three first degree murders and found true two special circumstance enhancements. The trial court sentenced Quan to three consecutive life terms without the possibility of parole. A panel of this court upheld Quan's conviction on his direct appeal in which he challenged the prosecutor's use of peremptory strikes, an evidentiary ruling, and jury instructions. ( People v. Quan, supra , G044609.)

In March 2019, Quan filed a petition for resentencing complying with the procedure set forth in Senate Bill 1437. The trial court summarily denied the petition on grounds that Senate Bill 1437 was unconstitutional as a purported amendment to Propositions 7 and 115—a rationale ...