Court Appeal

IN COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
vs.
No. H038490

Santa Clara County Superior Court No. Cl082954

LY TONG,

Defendant and Appellant.

Appeal From The Judgment of the Superior Court State of California, County of Santa Clara The Hon. Andrea Bryan, Judge APPELLANT’S OPENING BRIEF
Alfons G. Wagner State Bar No. 063105 14 Monarch Bay Plaza, #355 Monarch Beach, CA 92629 (949)218-5862 Attorney for Appellant
Sixth District Appellate Program Independent Case

 

TABLE OF AUTHORITIES………………………………………………………….. iii

APPELLANT’S OPENING BRIEF…………………………………………………… 1

STATEMENT OF APPELLATE JURISDICTION…………………………………. 1

STATEMENT OF THE CASE………………………………………………………… 1

STATEMENT OF THE FACTS………………………………………………………. 4

ARGUMENT

I

THE COURT COMMITTED REVERSIBLE ERROR IN DENYING APPELLANT’S Batson-Wheeler MOTION…………………………….. 24

Introduction…………………………………………………………………… 24

a.                                                                                                                                                   Factual and Procedural Background…………………………………….. 24

b.                                                                                                                                                   Batson-Wheeler Procedure and Standards……………………………… 27

c.                                                                                                                                                   The Totality of the Relevant Facts Demonstrates That the Court’s Determination There Was No Inference of Discriminatory Purpose Was Clearly Erroneous and Reversal Is Required……………………. 28

1.           The Attitude of the Local Vietnamese Community and

Its Probable Impact on Jury Selection………………………………….. 28

2.           The Prosecutor’s Proffered Reasons Were Either Not Supported By The Record Or Were Not Evidence Of

Racial Neutrality…………………………………………………………….. 29

Conclusion……………………………………………………………………… 30

 

II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING APPELLANT’S MOTION FOR ACQUITTAL UNDER SECTION 1118.1 ON THE VIOLATION OF SECTION 375 ALLEGED IN COUNT FOUR BECAUSE COUNT FOUR WAS A GENERAL STATUTE AND PROSECUTION ON THE VIOLATION OF SECTION 12403.7 ALLEGED IN COUNT TWO WAS PROSECUTION UNDER A SPECIAL STATUTE THAT PRECLUDED PROSECUTION UNDER
SECTION 375………………………………………………………………… 31

Background…………………………………………………………………… 31

a.                                                                                                                                                  Applicable Statutes………………………………………………………….. 31

b.                                                                                                                                                  Applicable Case Authority………………………………………………… 33

c.                                                                                                                                                   Conclusion……………………………………………………………………. 37

CONCLUSION………………………………………………………………………… 38

 

CASES

Batson V. Kentucky (1986) 476 U.S. 79 …………………………………… 24,. 27, 29

Cook V. Superior Court (1970 4 Calo.App.3d 822…………………………………. 33

In re Williamson (1954) 43 Cal.2d 651…………………………………………….. 34

Johnson V. California (2005) 545 U.S. 162 …………………………………. 27, 29

People V. Cornwell (2005) 37 Cal.4th 50…………………………………………… 27

People V. DeLaCruz (1993) 20 Cal.App.4IH 955…………………………….. passim

People V. Long (2010) 189 Cal.Ap.4lh 826……………………………………. 27, 30

People V. Murphy (2011) 52 Cal.4th 81, 86…………………………………………. 34

People V. Silva (2001) 25 Cal.4th 345……………………………………………….. 27

People V. Snyder V. Louisiana 552 U.S. 472…………………………………….. 30

People V. Wheeler (1978) 22 Cal.3d 258………………………………………. 24, 27

STATUTES Evidence Code Sections

402…………………………………………………………………………………………. 2

Penal Code Sections

148, subdivision (a)(1)……………………………………………………………… 2,   3

241, subdivision (a)……………………………………………………………………… 2

245, subdivision (a)(1)………………………………………………………………….. 1

375……………………………………………………………………………… 2,34,35,37

375, subdivision (a)…………………………………………………………………. 3, 31

375, subdivision (d)……………………………………………………………. 3,. 31, 36

459-460, subdivision (d)………………………………………………………………… 3

667…………………………………………………………………………………………. 1

1192.7                                                                                                                                                      1

1237, subdivision (a)……………………………………………………………………. 1

 

1368……………………………………………………………………………………….. 2

12403.7                                                                                                                                31, 35, 37

12403.7,                                                                                                                                             subdivision (g)………………………………………………………………………. 2, 34

12403.7,                                                                                                                                                    subdivision (g)( 1)……………………………………………………………………… 31

12422……………………………………………………………………………………… 2

22810…………………………………………………………………………………….. 31

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
vs.
No. H038490

Santa Clara County Superior Court No. C01082954

LY TONG,

Defendant and Appellant.

APPELLANT’S OPENING BRIEF STATEMENT OF APPELLATE JURISDICTION

This is an appeal from a final judgment of conviction after a jury trial. It disposes of all issues between the parties, and is authorized by Section 1237, subdivision (a).1

STATEMENT OF THE CASE An information filed on October 21, 2010, alleged appellant had committed the following crimes, all on July 18, 2010:

Count 1: Assault with a deadly weapon (§ 245, subd. (a)(1)), to wit; tear gas pepper spray; including an allegation he personally used a dangerous and deadly weapon within the meaning of Sections 667 and 1192.7;

1 All statutory section references are to the Penal Code unless otherwise stated.

 

Count 2: Unauthorized use of tear gas (§ 124Ơ3, subd. (g));

Count 3: Altering ID on tear gas weapon (§ 12422) ;

Count 4: Use of tear gas in public (§ 375, subd. (a)(d));

Count 5: Second degree burglary (§§ 459-460, subd. (d)), and; Count 6: resisting, delaying, obstructing an officer, a misdemeanor (§ 148, subd. (a)(1)). (1CT 62-65),

Appellant’s jury trial began on May 8, 2012 with hearings under Section 402 of the Evidence Code and in limine motions. (1CT 275, 3RT 22) The jury, including alternates, was sworn on May 9, 2012. (1CT 279) The prosecution made its opening statement on May 10, 2012, and began the presentation of evidence. (1CT, 4RT 97) The defense made its opening statement on May 16, 2012 and began presentation of the defense case.

(1C r 285)

On May 23, 2012, appellant’s trial counsel declared a doubt as to appellant’s mental competency under section 1368. (2CT 349, 11 RT812) The court denied appellant’s request for an ex-parte in camera conference regarding this issue. (2CT 349, 11RT814) Final arguments were presented on May 23, 2012. (2CT 349, 11 RT 817, 856, 885)

On May 24. 2012, the jury delivered the following verdicts:

Count 1: Guilty of simple assault (§241, subdivision (a)), a misdemeanor, as a lesser included offense of assault with a deadly weapon (§ 245, subd, (a)(1));

Count 2: Guilty of Unauthorized use of tear eas (§ 12403, subd.

(g));

2 Count 3 was dismissed on May 16, 2012, on motion of the prosecutor. (1 CT 285; 7RT 422)

 

Count 4: Guilty of Use of tear gas in public (§ 375, subd. (a)(d)); Count 5: Guilty of Second degree burglary (§§ 459-460, subd. (d)),

and;

Count 6: Guilty of resisting, delaying, obstructing an officer, a misdemeanor (§ 148, subd. (a)(1)). (1CT 62-65). (2CT 350-355, 358, 359; 12 RT 951-957)

On June 22, 2012, the court granted probation for a period of three years. (2CT 405) Included in the conditions of probation were that appellant serve six months in county jail and receive psychological counseling. (2CT405, 13RT 967, 971-975)

Notice of appeal was timely filed on June 27, 2012. (2CT 407)

 

STATEMENT OF THE FACTS PROSECUTION CASE

Sgt. Brian Gilbert of the Santa Clara Police Department, the prosecution’s investigating officer, was in charge of the intelligence unit and involved in coordinating the police response to special events (6RT 358, 362). He was informed by the management of the Santa Clara Convention Center on July 13, 2010, that a concert had been scheduled for July 18,2010. (6RT 362) The entertainers at the concert were from Vietnam. (6RT 363) Gilbert was aware that there had been protests at prior events involving Vietnamese activist groups, either pro- or anti- Vietnam. (6RT 364) He knew there was a group of anti-communist activists in the South Bay who responded to events they considered pro­communist. (6RT 364) There was usually a large demonstration with a high level of potential for violence. (6RT 364)

Gilbert met with a 2,roup of people from the convention center, including the promoter for the event, Huy Le. (6R.T 364) Le informed Gilbert there was going to be a protest and Gilbert was concerned there would be an attempt to disrupt the event. (RT 365) Le had no plan for security other than Santa Clara Police Officers. (6RT 365) Gilbert also met with organizers of the protest. (6RT 366)

Gilbert aưived at the Convention Center about four p.m.; about two hours before the concert was to begin. (7RT 386) He first came into contact with over a hundred loud, but peaceful, protesters outside the front entrance and the area surrounding the Convention Center. (7RT 386, 388) Once the concert began, Gilbert remained inside the theater itself most of the time. (7RT 389) Just after eight p.m., Gilbert heard screaming coming from the crowd. (7RT 390) Gilbert saw a person he had met

 

earlier in the day, Mr. Dickerson3, move up and grab what appeared to be a female at the front of the stase. (7RT 390) The headline performer was retreating away from the female and it appeared he had been assaulted in some way, because he was grabbing his face. (7RT 391) Gilbert ran out the control booth from where he had made his observations and ran toward Dickerson. (7RT 392) Dickerson had the person dressed as a female in a bear hug and was running up the walkway from the front of the Sta2,e to the back of the stage. (7RT 392)

As Gilbert came up to Dickerson he could see Dickerson was holding a Vietnamese male who was dressed in woman’s clothing. (7RT 393) Gilbert identified appellant as the Vietnamese male. (7RT 393) Dickerson had appellant’s arms wrapped in the bear hug but appellant’s hands were free so Gilbert grabbed appellant’s left hand and left arm. (7RT 393) As Gilbert and Dickerson were moving appellant out of the theater, they were joined by Sgt. Hosman. (7RT 394) Gilbert told appellant they were police5 and to put his hands behind his back. (7RT 395) Appellant did not comply. (7RT 395) Gilbert was still on appellant’s left side and Hosman was on appellant’s right side. (7RT 395) The two officers attempted to take control of appellant by attempting to put his hands behind his back for hand-cuffing. (7RT 394-395)

Appellant physically resisted Gilbert by tensing up and not letting him bend appellant’s hand behind his back, (7RT 396) Hosman was trying

3 Dickerson had introduced himself as doing some type of executive protection security for one of the attendees. (7RT 415, 4RT 183)
4 A wig, synthetic ilower, two underwear garments, a necklace, tan-colored panty hose and a pair of woman’s shoes taken from appellant were booked into evidence. (6RT 330-338)
5 Hosman was in uniform but Gilbert was not. (7RT 395)

5

 

to get appellant’s right arm behind his back. (7RT 396) Gilbert pushed appellant into an adjacent wall to prevent him from twisting. (7RT 396) Appellant had been verbally advised not to resist throughout. (7RT 398) According to Gilbert, appellant received a small laceration above his left eyebrow less than an inch long that produced a small amount of blood.

(7RT 399) The wound was apparently caused by a metal seam in the wall against which appellant was pushed. (7RT 428-431) Appellant received treatment for the laceration from Santa Clara Fire. (7RT 399)

Over objection, Gilbert was also qualified as a pepper spray expert based on his experience with it and its effects. (7RT 380, 417-421) Direct exposure to pepper spray would close a victim’s eyes immediately because of the irritant. (7RT 380) His or her eyes would also run. (7RT 380) If inhaled there would be choking, a tightness in the chest and difficulty breathing;. (7RT 381) Santa Clara policc carried 10% pepper spray but Gilbert was aware of pepper spray available to the public from 6% to 17. (7RT384)

The fire department had been called because Gilbert could smell the distinct odor of pepper spray. (7RT 400) Gilbert knew that the pepper spray would cycle through the theater’s ventilation system and the audience would experience the effects of the pepper spray. (7RT 403-403) He observed fire department personnel examine a few of the concert attendees and later bring in very large industrial-strength fans to ventilate the theater. (7RT 404) He also observed some but not all of the audience displaying symptoms of having been pepper sprayed leaving the theater during intermission. (7RT 437, 449) Some were coughing and holding their hands over their mouths. (7RT 437)

 

Gilbert observed the performer who had been sprayed had blood shot eyes, tearing up, a runny nose, was coughing and had redness to his face and upper chest area. (7RT401) What Gilbert observed was consistent with the use of pepper spray. (7RT 401, 408)

Sgt. Gary Housman, a patrol supervisor, observed who he thought was a female spray something in the face of the male performer. (4RT 149) The female had first offered the performer some flowers she was carrying. (4RT 158) His version of appellant’s arrest and how he received is injury was essentially the same as Sgt. Gilbert’s. (4RT 160-166, 200)

Hosman saw concertgoers coming out of the theater with articles of clothing up to their faces. (4RT 167) They were also coughing, sneezing and rubbing their eyes. (4RT 167, 199)

Hosman discovered two canisters of pepper spray on appellant’s person. (Peo’s Exs.8 & 9, 4RT 170-178)

Phan All6 and her uncle arrived at the concert about six p.m. (5RT 213-214) Their seats were seven to 10 rows from the side of the theater and they could clearly see the stage. (7RT215) about halfway through a sons Au saw a female dressed in black who was carrying a flower and wearing a hat came near the stage. (5RT 215) Auh saw the person spray Dam Vinh Hung with something that he couldn’t sing any longer. (2RT 217) She was recording the person on her I-phone video as he approached the stage. (5RT 218) She kept recording until the person was arrested. (5RT 220) She later realized the person who had sprayed was a man and not a woman. (5RT 223)

The video from her I-phone (Peo.’s Ex. 10) was played for the jury. (5RT 223) According, to Pau, the performer said that the person sprayed

 

something in his eyes and made them uncomfortable so he asked to be excused for some minutes so he could sing again. (5RT 223)

All stayed in her seat until the show was ended. (5RT 218) A smell made her sneeze and have tears for five to ten minutes. (5RT 218-219)

Her uncle also coughed for several minutes. (5RT 335) People around her sneezed and had to go out of the theater to breath. (5RT 220, 226) She estimated about half the crowd left the building because of the pepper spray. (5RT 232)

Shortly after the spraying, someone on stage announced they would be taking a short intermission and told the crowd they should go outside for a few minutes. (5RT 232) The entertainers came back out on the stage about 10 to 15 minutes later and continued to sing for 45 minutes. (5RT 226, 236)

Au denied being asked by a defense investigator whether she was affected by the spray and did not remember if she told that investigator that she was not affected by the spray when she was inside. (5RT 231)

Ss,t. Kiet Nguyen of the Santa Clara Police Department was one of the officers assigned to security for the concert. (5RT 102) The security detail was to keep peace between the protesters and the people attending the concert. (5RT 103) At their peak, there were 50 or more chanting protesters with banners and flags. (5RT 104)

Nguyen was assigned to interview appellant after his arrest. (5RT 105) Officcr Lutz was watching over the person in custody when Nguyen interviewed appellant (5RT 106-107) Nguyen identified appellant as the person he interviewed. (5RT 106) Appellant was wearing female clothine including a net over his head that one would wear under a wig. (5RT 206)

6 Au testified with the assistance of an interpreter. (5RT 213)

8

 

The interview beean at about 8:40 p.m. (5RT 120) They spoke in English but appellant’s statement was only recorded in the police report because Nguyen had no audio device. (5RT 107)

Appellant told Nguyen he was famous freedom fighter. (5RT 107) He had sprayed pepper spray at the performer because the performer was a communist and there to harm appellant’s community. (5RT 107)

Appellant was merely acting in self-defense to protect his community.

(5RT 107) He was dressed the way he was because he was famous and he would have been denied entrance at the door because he would have been recognized. (5RT 108) He paid cash for the ticket at the front door. (5RT 108)

Appellant was non-remorse ful and appeared to be proud of what had happened. (5RT 118) Nguyen observed a small bump on appellant’s head. (5RT 119)

The performer appellant sprayed was Dam Vin Hung. (5RT 108-

109)      Appellant brought flowers as a gift for the performer. (5RT 109) When the Hung approached him to get the flowers, appellant sprayed pepper spray at him. (5RT 109) Appellant made no mention of receiving any physical threats from Hung. (5RT 109)

Appellant did a week of planning and took two pepper spray canisters because if one malfunctioned, he would have a back-up. (5RT

110)

Right after speaking to appellant, at about 9:15 p.m., Nguyen went backstage and spoke to Hung. (5RT 110) Hung’s skin, face, chest and arms were red. (5RT 111) He was also having difficulty breathing. (5RT 111)

 

Nguyen had been exposed to pepper spray before and his reaction was very similar to Hung’s. (5RT 116)

Nguyen’s police report reflected he had seen 250 to 300 protesters but that figure was given to him by somebody else. (5RT 117)

The parties stipulated to the foundation for a video of an interview appellant gave to Little Saigon TV and it was played for the jury. (5RT 243) The video was in Vietnamese but it was translated into English in short segments for the jury as it was played. (5RT 244) The jury was also provided with English transcripts of the video.7 (5RT 245)

In the interview, appellant explained that he was on a mission to fight against communism. (5RT 248) Me thought of pepper spray because it was legal. (5RT 249) He disguised himself as a woman because everybody in the community would recognize his face. (5RT 249-250) He carried two fake lotus flowers to give to the performer. (5RT 254) Appellant approached the stage closely as he was waiving the flowers.

(5RT 254) When the Communist performer Van Ding Huns approached appellant to take the flowers, appellant shot Hung one time in the face with pepper spray. (5RT 248, 256, 262) He had practiced with the pepper spray. (5RT 257) He was grabbed by three or four security guards and then by the police. (5RT 258-259) The police pushed him into a wall splitting his head open, (5RT 260) He lost half a liter of blood. (5RT 260) Tien Van Hinh, who also attended the concert, testified with the assistance of an interpreter. (5RT 123) He did not purchase a ticket because his friend Phuc had invited him. (5RT 123, 139) He arrived right

7 A copy of the transcript was obtained by Rule 8.340 letter and filed on October 29, 2012. It was not given an exhibit number.

10

 

at the beginning of the concert. (5RT 123) He was seated near the front right in the center and there were no scats in front of him. (5RT 124)

At some point in the concert Hinh saw a woman walk up to the stage with flowers and all of a sudden he heard the singer scream. (5RT 124) Dam Vinh Hung and My Tam were the performers on the state. (5RT 125) Hinh ran up and tried to intervene but now didn’t recall what he was intervening. (5RT 126, 131) He did not remember telling police appellant sprayed pepper spray in the performer’s eyes. (95RT 131)

Hinh felt a bit of his face and his chest were warming up. (5RT 132) He went into the rest room and splashed water on his face and eyes for about five minutes but did nothing else. (5RT 133, 135) The concert stopped for about half an hour and then restarted. (5RT 143)

Mellisa Hengood, a criminalist with the Santa Clara County Crime lab analyzed the contents of the two pepper spray canisters found in appellant’s possession (Peo. Exs. 8 & 9) and found both contained pepper spray. (6RT 288-289, 302) Because she was not asked to, she performed only a qualitative analysis and did not determine how much, if any, of the contents of the canisters had been expended. (6RT 296, 306, 7RT 405)

She was also not asked to and did not examine the spouts of the canisters to see if there was an pepper spray residue. (6RT 309) She as also not asked to and did not attempt to extract and pepper spray residue from clothing although she could have if asked. (6RT 312-313, 7RT405-406)

8 Officer Tyson Green of the Santa Clara Police Department later testified Hinh told him that he sustained a prolonged irritation of his eyes from

 

DEFENSE CASE

Minh Nhut Huynh at the concert as a photographer for V Times, a Vietnamese publication. (7RT 470, 8RT 488) He used a digital camera that recorded the date and time a photograph was recorded. (7RT 471,

8RT 489)9 Huynh took a number of photos at the concert including one taken right after the actual spraying incident and one of an audience that did not appear to be physically affected by the substance that was sprayed. (Defense Exs. E, H, 7RT 503-505, 491-522)

Huynn admitted he had provided appellant with a CD of photos of the incident and told appellant he was a fan of appellant’s. (7RT 528, 540) Hunyn had taken all the photos accepted into evidence but appellant had developed some of them. (7RT 539)

Nguyen Xuan Vinh, who moved to the United States in 1962, first met appellant 34 years ago in 1988 at a Vietnam remembrance day in Louisiana. (8RT 551-554, 556) Vinh lived in San Jose from 1999 until 2010. (8RT 555) Prior to July 18, 2010, Vinh believed appellant was a peaceful and good man. (8RT 557) Appellant went to school in this country and got an education he used to progress himself. (8RT 558)

Vinh believed appellant was a peaceful man because he had never heard appellant did anything to harm anyone. (RT 558)

being pepper sprayed that lasted an hour after the concert ended. He also told Green his face and chest where also irritated. (5RT 274)

9 Hunyh’s testimony was interrupted after it was discovered he had been in the court room at some point during the presentation of evidence. (7RT 472-4731) The court granted the prosecution’s motion to bar his testimony. (7RT 474-476) 1 lowever, the next day, the prosecution and appellant stipulated Hunyh could testify. (7RT 486) The court chose to add a factor regarding this incident to the general credibility instruction. (2CT 311)

12

 

Appellant had a good reputation in the community prior to July 18, 2010; people loved him. (8RT 555) He was also an honest man; Vinh had never heard he had done anything wrong. (8RT 559) Vinh moved to Orange County in 2010 and did not have any face-to-face contact with appellant until asked to testify at this trial. (8RT 562, 564) He did write to appellant a few times between 1988 and 2010 and one of the letters was published in appellant’s book. (8RT 562, 563)

Vinh did have a lot of contact with appellant between 2006 and 2010. (8RT 563) They saw each other once or twice a month at community meetings. (8RT 563-564) Vinh considered appellant a 20od friend but not a close friend. (8RT 563) Neither had been to the other’s home. (8RT 565) He did not receive a subpoena and came on his own. (8RT 566)

Vinh knew what appellant had been charged with but it did not change his opinion of appellant. (8RT 569-570)

Canh Van Nguyen had lived in Palo Alto from 1975 to 1977 until he moved to his current home in Redwood City. (8RT 562) Before 1975 Nguyen lived in Vietnam. (8RT 572) When Nguyen came to the United States in 1975, he was very, very, active in a community of other refugees from Vietnam. (8RT 572) He was still active in that community. (8RT 572) He felt he had a duty to help the people from Vietnam and was a direction of the so-called Indochina Training and Development Center in San Jose from 1980 to 1991. (8RT 573) Between 2007 and July 18, 2010, Nguyen and appellant met many times in different meetings and had personal conversations. (8RT 574) Nguyen also knew of appellant’s reputation prior to 2007 from some of his former students from Saigon or

 

members of the armed forces. (8RT 574) Nguyen had taught at the National Defense College and the Command and General Staff. (8RT 574) Many of the community in San Jose and Santa Clara County were the same people who formed the community in Saigon Nguyen was a member of. (8RT 574)

Nguyen considered appellant to be a good and very honest person. (8RT 575-576) Appellant had a reputation in the community lor being honest. (8RT 576) lie was a leader in the community, a nonviolent person and the community loved him. (8RT 577) This opinion was based at least in part on appellant’s activity in peaceful protests. (8RT 584) His hunger strike supporting the designation of Little Saigon was an example. (8RT 584-586)

Nauyen had known appellant for about five years. (8RT 586) They had met often at community meetings but had never met outside those meetings. (8RT 586) Nguyen did consider appellant a friend, however. (8RT 587) They sat together and talked at most community meetings.

(8RT 587-588) Nguyen had attended maybe 10 of appellant’s rallies.

(8RT 589) Some of these rallies included speaking at the association of former police officers from Vietnam. (8RT 594-595) The officers rcspected him. (8RT 595)

Nguyen had never talked to appellant about this case nor had seen anything about it in the media. (5RT 589) He had heard some people in the community saying something about the singer from Vietnam in the concert. (5RT 592) That appellant had been charged with assault did not change Nguyen’s opinion that he was a peaceful man. (5RT 592-593, 596 Bin Khac Nguyen, testifying through an interpreter, had lived in San Jose around 15 years, in Milpitas for around 14 years and also in San Mateo

 

for around 14 years. (8RT 599) Nguyen came to the United States in 1975. (8RT 599) Nguyen had been a two star general in the Vietnamese Central Intelligence Agency. (8RT 600) He didn’t know appellant in Vietnam but had heard about him. (8RT 600) Appellant was one of those who helped Nguyen slow the advance of the communists in Vietnam. (8RT 601)

Nguyen first met appellant when appellant moved to San Jose. (8RT

602)      Nguyen was a senior member of the association of the Vietnamese military and always greeted people who came to the meetings of the organization. (8RT 602)

Appellant was well known in the community from 1975 to 2000. (8RT 603-604) Appellant was the image of a “courage” fighter pilot. (8RT

603)      He socialized widely with the community and with the veterans.

(8RT 603) Fie was a nice person. (8RT 603) The hunger strike appellant did regarding Little Saigon proved he preferred a peaceful to a violent protest. (8RT 603)

Nguyen had tried to act as a bridge between the community and the elected officials. (8RT 605) Appellant was obsessed with the ideal and tried to protect freedom and democracy. (8RT 605, 608-609)

Nguyen considered appellant a mate or a solider but not a friend. (8RT 606) They rarely contacted outside of meetings. (8RT 609)

Candance Vance’s boyfriend was arrested in her presence by Sgt. Hosman in 2009. (9RT 617) She contacted the Santa Clara Police department and reported Hosman had made false statements in the policc report regarding the arrest. (9RT 617, 622) She did not know appellant or anything about the subject of the trial. (9RT 627)

 

APPELLANT

Appellant had lived in the United States since 1983 and in San Jose since 2007. (9RT 668)

He remembered buying a ticket and attending the concert at the Santa Clara Convention Center on July 18, 2010. (9RT 668) He arrived sometime before five. (9RT 669) There were only a few protestors there at that time. (9RT 669) They were there because the singer was a spearhead of Communist Cultural Attacks and a famous Communist. (9RT 669)

Appellant mostly took part in the protests as an individual and not an organizer. (9RT 669) Appellant took part in the protests against the communists because they killed a million Vietnamese people and sold Vietnam to Red China. (9RT 669) A million people had escaped but half of them died in the sea. (9RT 669) Appellant himself had been a communist prisoner for 21 years. (9RT 669) If we didn’t protest “them”, they will come here, take over the community and do harm to America and Americans. (9RT 669)

Appellant wore woman’s dress to the concert. (9RT 670) That included a skirt, coat, vest, a hat, necklace, high heels and a wig. ((9RT 670) He wore this clothing to keep from being recognized. (9RT 670) Essentially everybody knew him including the concert organizers. (9RT

670)

His intent in going to the concert was to make a warning. (9RT 671) First, they should not come here to destroy our community and spoil our children. (9RT 671) Two, the U.S. Government should stop the communists from attacking American citizens. (9RT 671) Appellant’s

 

protest was to Dam Vinh Hung, the singer performing at the concert. (9RT

671)

Before Hung had come to San Jose, there were protests against him at a concert in Dallas. (9RT 672) Hung sang a song of praise to Ho Chi Minh. (9RT 672) Minh was something like Lenin or Mao Tse-Tung.

(9RT 672) He was one of the founders of Communist Vietnam and had killed a million people in Vietnam. (9RT 672)

Hung was a spearhead of communist cultural attacks. (9RT 673) He was sent to spoil the youth and cause a division in the community. (9RT 673 ) Another communist singer, Lang Lang, had sang anti-American songs at the White House. (9RT 673)

Also to sing at the concert was My Tam, a woman and another communist performer. (9RT 674)

Appellant’s plan included displaying to the audience his underwear on which a Vietnamese flag had been painted with the slogans “Down with Ho Chi Minh” and Down with “Dam Vinh Hung. “ (9RT 675) Appellant was also carrying an artificial lotus flower because the lotus was the symbol of Ho Chi Minh. (9RT 677) That it was artificial demonstrated Ho Chi Minh was a big liar, a criminal and not a real hero. (9RT 678)

When the singer came near, appellant gave him three good shots of perfume mixed with fish sauce. (9RT 677) Appellant decided to use fish sauce because label on the pepper spray said if not used in self defense, use was a crime. (9RT 678) Fish sauce is a kind of humiliation and doesn’t do you any harm but is a little inconvenient. (9RT 678)

Appellant created the mixture of fish saucc and perfume in a perfume bottle. (9RT 678) He took out some perfume from the bottle and

 

replaced it with fish sauce. (9RT 678) He had to mix the two because fish sauce was so heavy and he wouldn’t be able to spray it. (9RT 678)

As he approached the stage, appellant had the perfume/fish sauce in his left bra, one pepper spray in his right bra and another pepper spray in his underwear. (9RT 679)

Appellant needed the pepper spray because he knew Tony Ninh’s henchmen would attack him. (9RT 679) Everybody in San Jose knew Ninh; he was a familiar concert promoter and a big boss. ((RT 68)

He planned to threaten Ninh’s men them with the pepper spray and escape. (9RT 679-680) He knew Ninh did not hire security on than Dickerson so his henchmen would be there. (RT 680)

After he sprayed, Ninh attacked appellant on the right side and many of the guys seen in the video running on to the stage were his henchmen. (9RT 680) People’s Exhibit 21 showed Dickerson on his left and Ninh on his right. (9RT 684) At the time he was grabbed by Dickerson and Ninh, he no longer had the perfume bottle in his hand. (9RT 681) It fell on the around somewhere. (9RT 682) Dickerson carried him out like a baby. (9RT 683)

People’s Exhibit six was a photograph of the pepper spray canister that was in his bra. (9RT 686) The canister in the photo had a ruler next to it indicating the canister was four inches long. (9RT 687) Trial counsel had appellant hold a pen in his hand that was also four inches long simulating how he held the perfume bottle. (RT 688) The bottom of the pen could be seen protruding from his hand. (9RT 688) However,

People’s Exhibit u, apparently a photo of appellant approaching the state, did not show anything protruding from the bottom of appellant’s hand.

 

(9RT 688) The demonstrative evidence was marked collectively as Defense Exhibit w. (9RT 688-689)

Immediately after Dickerson handed appellant over to the police one of the officers his left hand behind his neck and almost broke it.10 (9RT 690) A metal part of the wall was right in front of appellant’s face so he turned his head and yelled “Do not use excessive force.” (9RT 691) At that point the officers banged appellant’s head against the metal and said “Do not resist.” (9RT 692) Appellant’s head began gushing blood. (9RT 693) People’s Exhibit 20, taken later at the jail, showed blood on appellant’s neck. (9RT 693-694)

Appellant made his statement to a television station about a week after the incident at a concert by Dam Vin Hung in Orange County appellant was protesting. (9RT 695) In that statement appellant admitted he said he used pepper spray at the July 18, 2010, concert. (9RT 965) That was not true and he said it to “drum up” the incident and to prevent damping the spirit of the 4000 people coming to the Orange County Concert. (9RT 695) It was not a statement under oath and he meant it as propaganda. (9RT 696) The transcript of the television interview had many mistakes. (9RT 705)

Appellant stated he was in jail for 21 years for his political activity fishtina, communists. (9RT 698) During that time he and his comrades were subject to all kinds of torture. (9RT 699)

Appellant went on a hunger strike when there was a plan to call the one local shopping center Vietnam Tower. (9RT 700) This was because the Vietnamese communists want to buy the center with laundered money. (RT 700) The protesters wanted to call the shopping center Little Saigon.

 

(9RT 701) The protesters believed changing the name would give them more power to limit local communist activities and to force the performers to pay all police costs among other expenditures. (9RT 701) Most of the Vietnamese community in San Jose was from South Vietnam. (9RT 701)

Appellant put makeup on the day of concert and practiced walking in high heels for about 10 minutes. (9RT 707-70) He read the material on both canisters of pepper spray. (9RT 709) People’s Ex. 24 is a photo of how he looked in costume. (9RT 712) Appellant taped a tampon to the panties. (9RT 714) He went to theater twice before incident because had never been there before. (9RT 717) Appellant paid $50 to a guy standing outside for a ticket. (9RT 718) It was for last row aisle seat. (9RT 918) Appellant did not remember telling Sgt. Nguyen he purchased the ticket at theater and asked for aisle seat; all he said was he bought the ticket at the theater. (9RT719)

When appellant approached the stage, DamVin Hung was singing a love song. (9RT 721) This was after he sang a song for Ho Chi Minh seen in the You Tube video. (9RT 722) When Hung bowed down to take flower, appellant sprayed him in the face. (9RT 723) Appellant was almost touching the stage when this happened. (9RT 728) Appellant knew Dam Vin Hung could not be harmed much because he was using fish sauce.

(9RT 723) Fish sauce stinks and is heavy but does not vaporize. (9RT 724) Appellant agreed he wanted to offend, embarrass and make a statement. (9RT 726) He has sprayed his hair with alcohol and it gets a little in your eyes but just washing it makes it go away. (9RT 726) It doesn’t burn. (9RT 726-727)

10 Appellant could not use his left hand normally anymore. (9RT 690)

20

 

He knew there would be women and children at concert. (9RT 729) Appellant was not concerned spraying could affect other concert-goers because fish sauce does not vaporize. (9RT 729) Nobody could smell it for same reason. (9RT 729)

Appellant was not going to assault Hung: it would just be a warning. (9RT 730) He did think it was an assault because it was not “serious stuff.” (9RT 730) He thought it was some kind of misdemeanor as originally charged. (9RT 731)

Had appellant seen police , he would not have sprayed because he would have been arrested. (9RT 732) He felt he could get away from rhw “henchmen” but not police. (9RT 732)

He did not tell Sgt. Nguyen he was there to pepper spray Hung; he told Nguyen he was just going to “spray.” (9RT 733) Only later did Nguyen ask how many pepper sprays appellant had. (9RT 733) He got the fish sauce from home and the perfume from K Mart. (9RT 734, 736) He needed something smaller than pepper spray so he could hold in hand.

(9RT 734) It would be something like 2.5 inches. (9RT 734-735) He bought ten bottles so he could get one to work. (9RT 735) It was round. (9RT 736) He didn’t alter the bottle, and just exchanged some fish sauce for perfume. (9RT 738) Mixing with water would not have worked because it would be too heavy. (9RT 756)

When this first happened, there was a lot of publicity. (9RT 739)

All the Vietnamese community loved it; there was no way to stop them. (9RT 739)

He waited today to reveal that it was fish sauce to unmask the conspiracy. (9RT 740) Appellant referred to to varying testimony about what happened to crowd to claim all the testimony so far is perjury. (9RT

 

740) He did not mislead (he community but only did not want to dampen their spirit. (9RT 741) Every single day he was recorded in front of courthouse. (9RT 741) One of the things he had to tell the people about was all the perjury. (9RT 743) Hung made no threats to physically attack, only mentally. (RT 744) But he might have physically attacked appellant. (9RT 745)

His actions at the concert were a mission for him. (RT 946) Just like tellins the stewardesses on an airplane in Vietnam he had a time bomb so he could get into the cockpit to drop leaflets from the airplane. (9RT 747-748) He bailed out after dropping the leaflets. (9RT 747) He had binoculars taped to his knee under his pants to simulate the bomb. (9RT 749) He was caught and put into prison. (9RT 750, 771-772)

One month before the end of the Vietnamese war, appellant was shot down and captured. (9RT 773) He escaped after six years and made his way to Singapore and eventually to the United States. (9RT 773-774)

In 2000, he flew to Cuba and dropped leaflets opposing the Castro regime. (RT 774-775) He returned to Southeast Asia in the same year and hired an airplane in Thailand from which he dropped ant-communist leaflets on Saigon. (9RT 775)

When he was released from jail he wore the dress. (9RT 751) People’s Exhibit 25 is what he looked like when released. (9RT 752) Appellant admits his spraying plan was not self-defense. (9RT 754)

Appellant admitted a hunger strike in the past in which he harmed himself. (9RT 757) He had done other types of peaceful protests. (9RT 757) He first admitted his fish sauce spraying was an assault but then said it was not an assault but just a warning. (9RT 758)

 

He paid $1000 for real wig. (7RT 759) He had actually bought it for another occasion in which he intended to hang a garland with “Down With Communism” on the Vietnamese vice prime minister’s back. (9RT 759-762) However, he was caught before he could carry out his plan. (9RT 759) Appellant admitted photo-shopping one of the photos he got from the photographer because it was not clear. (9RT 763-764) When asked in one of his interviews outside the jail appellant declared he was not sorry for what he did. (9RT 766) It there was no civil disobedience, there would be no revolution. (9RT 767)

Appellant declared the media and 99% of the community loved him. (9RT 768) The court sustained the prosecutor’s objection to appellant’s question as to what resolution 36 was. (9RT 77)

 

ARGUMENT
I

THE COURT COMMITTED REVERSIBLE ERROR IN

DENYING APPELLANT’S Batson-Wheeler MOTION.

Introduction.

This issue in this appeal is somewhat unusual. It concerns an initial finding by the trial court that a peremptory challenge of a single Vietnamese prospective juror did not raise a prima facie case giving rise to an inference of discriminatory purpose. Immediately following the court’s finding that no prima facie case had been shown, the court offered the prosecutor the opportunity to voluntarily provide the reasons why it challenged the single prospective juror. The prosecutor accepted and voluntarily presented her reasons. Those reasons were not supported by the record. Appellant submits those reasons coupled with the other relevant evidence establish that the court’s determination that no prima facie case had been shown was reversible error. This court should reverse and remand.

a.   Factual and Procedural Background.

On May 9, 2012, the prosecution’s peremptory challenge of perspective juror Mr. Vo was granted. (2VDRT11 210-211) Appellant’s trial counsel immediately posed a Batson12-Wheeler13 motion at the bench. (2VDRT 228)

11 Citations to 2VDRT are to Volume 2 of the reporter’s transcript of the jury voir dire filed October 11, 2012.
12 Batson V. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.
13 People V. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 p.2d 748

 

In his response to the general biographical question asked of all jurors, Mr. Vo had testified his name was Tung Vo, he was born in Vietnam and had lived in this county since 1978. He was a software engineer, single and had no children. He had no prior jury experience and didn’t have anything else to disclose. He could be impartial. (2VDRT 139) When later asked by the prosecutor whether he would have a problem with the fact no victim would be called as a witness, Mr. Vo answered as follows:

At first I didn’t think there was a victim involved. And also there are active wrongdoing that might not involve a victim.

Say vandalism. A victim might be – a victim can be a collective, just like a city or county. So I think I would be base my analysis or judgment on the act of — the evidence of this prosecution.

Mr. Vo added that was “‘regardless of whether there is a victim.” (2VDRT 171-172)

The prosecutor next addressed Mr. Vo as follows” “You heard the charges as they were read. They were read yesterday and they were read today. Right? Mr. Vo answered “Yes.” The prosecutor then asked Mr. Vo “[S]o you know that one of the charges had the name of a victim. Do you remember hearing that? Mr. Vo replied “I might have missed that. Yes.” (2VDRT 172)

The prosecutor next asked “So my question is that if you don’t hear from that person, that named person, how are you going to feel about that?) Mr. Vo answered “I would prefer to have a victim present and have his or her say, but given the choice – given that’s not the option, then I have to pay more attention to the evidence presented beside the victim’s. (2VDRT 172)

 

At the hearing on appellant’s motion, the court asked trial counsel to articulate his objection for the record “being mindful of the fact you need to establish a prima facie case. Trial counsel replied Vo had been the only member in the jury box of Vietnamese descent. (2VDRT 228) Trial counsel argued he believed his challenge could be based upon a single juror. (2VDRT 228)

Trial counsel argued further that Mr. Vo had no disclosures and his answers showed he would have no problem with the lack of a victim. (VDRT 229) He would be fair and impartial. (2VDRT 230) Trial counsel continued he thought that there is a very limited basis for a challenge other than the fact [Mr. Vo] was of the same group as appellant. (2VDRT 230) After the prosecutor argued that all that had been shown was that Mr. Vo was a member of a cognizable group, the court found there had been an “insufficient showing or a prima facie case of group bias” and denied appellant’s motion. (2VDRT 23 ])

At that point the court offered the prosecutor the opportunity to voluntarily place on the record why she had challenged Mr. Vo. (2VDRT 231) The prosecutor replied she had “no problem” doing that. (2VDRT 231) She had dismissed Mr. Vo “because [she] felt when [she] was talking to him, his body language toward [her], his inability to look [her] in the eye, he didn’t seem very open.” (2VDRT 231) Further, “[ajlthough he answered the questions, he didn’t seem open. [She] didn’t think he would be the type that would be able to deliberate as a group. He seemed closed in and that is the reason [she] excused him.” (2VD 231

Trial counsel then asked the court whether the court’s ruling was based on the fact it concerned a single juror. (2VD 232) The court replied “Well, you have got to show group bias. Perhaps that could be done on the

 

basis of a single juror. I’m simply making a finding that a prima facie case has not been shown. And I am looking at a checklist of factors and I am just finding that you did not meet the criteria.” (2VD 232)

Neither the court, trial counsel nor the prosecutor added anything further to the record regading the motion.

b.   Batson-Wheeler Procedure and Standards.

This court recently set out the standards and procedure to be used in Batson-Wheeler challenges in People V. Long (2010) 189 Cal.App.4th 826, 841. First noting that both the state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors based solely on group bias, the court then included a quotation from Johnson V. California (2005) 545 U.S. 162 which had reaffirmed that Batson states the procedure and standards to be employed by trial courts when evaluating Batson- Wheeler challenges:

First, the defendant must make a prima facie case “by showing that the totality of the relevant facts eives rise to an inference of discriminatory purpose.” [Citations.] Second once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide … whether the opponent of the strike has proved purposeful racial discrimination.” [Citation]” (People V. Cornwell (2005) 37 Cal.4th 50, 66-67, quoting Johnson V. California, supra, 545 U.S. at p. 168.)

Also particularly relevant in this appeal is the well established rule that “[t]he exclusion of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal. (People V. Silva (2001) 25 Cal.4th 345, 386.

 

c.   The Totality of the Relevant Facts Demonstrates That the Court’s Determination That There Was No Inference of Discriminatory Purpose Was Clearly Erroneous and Reversal Is Required.

1.   The Attitude of the Local Vietnamese Community and Its Probable Impact on Jury Selection.

The “elephant in the room” in this appeal is the attitude of the local Vietnamese community regarding appellant and his actions. This attitude had to be known to the prosecutor and surfaced repeatedly during the trial.

Sgt. Gilbert testified that he knew there was a group of anti­communist activists who responded to events they considered pro­communist. The performers in the concert were from communist North Vietnam. There is no doubt appellant’s motive in spraying the performer was political. He wanted to embarrass and send a message to the communist faction. He further described his motive as self-defense to keep the communists from influencing the local community.

When Sgt. Gilbert arrived at the concert site there were over a hundred loud but peaceful protesters outside the concert site. Sgt Nguyen first estimated the number of protesters at about 50 but in his report stated there were 250-300.

Appellant’s character witnesses testified to his good character and to his popularity and activism in the local Vietnamese community. One, in fact, stated the community loved him. According to appellant, most of the local Vietnamese community was from South Vietnam. Appellant asserted the media and 99% of the community loved him. The community loved what he had done.

Appellant submits that in these circumstances, the prosecutor had to

be aware that there was a heightened possibility any Vietnamese juror

28

 

could be a sympathizer of appellant and “radioactive” as a possible nullifier. It gave her a reason to be particularly suspicious of prospective Vietnamese jurors.

2.   The Prosecutor’s Proffered Reasons Were Either Not

Supported By The Record Or Were Not Evidence Of

Racial Neutrality.

The prosecutor’s proffered reasons are part of the totality of relevant facts in determining whether or not the challenge had given rise to an inference of discriminatory purpose. There could be no other rational purpose to include them in the record other than to be available for appellate review. Johnson V. California, supra, 545 U.S. 162, which dealt with a step 1 issue, implies what the prosecutor might have to say about his reasons for a challenge should, in some circumstances, be sought out. (Id., at p. 165.)

There is absolutely nothing in the record of the questioning of Mr. Vo supporting or corroborating the prosecutor’s claim that he was closed in and not open. There is also nothing in the record supporting or corroborating the claim that he did not look the prosecutor in the eye. The claim that appellant would not be one to deliberate in a group is belied by the thoughtful and, appellant submits, open answers on the issue of whether or not the presence of a victim would matter.

Appellant submits that the analysis provided by decisions dealing with step three of the Batson process is helpful here. The lo^ic is applicable here. A ruling against the prosecutor on whether a challenge reason was race neutral inescapably means the reason necessarily at least supported an inference of discriminatory purpose.

As to body language and demeanor evidence:

 

…[WJhen the prosecutor bases a peremptory challenge on an unrecorded aspect of a prospective juror’s appearance or behavior, we must and will look for some support in the record for the prosecutor’s observation. In this case, the record is devoid of any mention, let alone description, by the trial judge or the prosecutor of what was disturbing or unseemly about T.N.s’ body language or way of expressing himself.

People V. Long, supra, 189 Cal.App.4th 826, 848.)

The Long court went on to hold “we must conclude that the trial court erred in accepting the prosecutor’s virtually unverifiable and unverified explanation for challenging TN.” (Ibid.)

In Snyder V. Louisiana (2008) 552 U.S. 472, the court noted deference was especially appropriate where the trial judge made a finding that an attorney credibly relied on demeanor in exercising a strike. However, the Snyder court refused to grant that deference primarily because the record did not show that the trial judge made a determination concerning the prospective juror’s demeanor. {Id., at p. 479.)

3.   Conclusion.

This court should reverse and remand.

 

II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING APPELLANT’S MOTION FOR ACQUITTAL UNDER SECTION 1118.1 ON THE VIOLATION OF SECTION 375 ALLEGED IN COUNT FOUR BECAUSE COUNT FOUR WAS A GENERAL STATUTE AND PROSECUTION ON THE VIOLATION OF SECTION 12403 7 ALLEGED IN COUNT TWO WAS PROSECUTION UNDER A SPECIAL STATUTE THAT PRECLUDED PROSECUTION UNDER SECTION 375.

Background.

At the conclusion of the prosecution’s case, appellant moved for acquittal of all counts under Section 1118.1. (7RT 459) Appellant argued that Count 2, which was charged under Section 12403.714, subdivision (a), was a special statute that could not be prosecuted along with Count 4, which alleged a violation of Section 375, subdivisions (a) and (d). (7RT 459)

The trial court heard partial argument on the motion but deferred ruling because it was going to take some time to look into the issue. (7RT 467) The court resumed the hearing on the motion just prior to final arauments and denied appellant’s motion. (10RT 791-803)

a.  Applicable Statutes

At the time of trial Section 12403.7 provided in relevant part as follows:

14 Section 12403.7 has since been renumbered as Section 22810 without substantive change. Appellant will cite to Section 12403.7 under its original number so as to more closely track the arguments in the trial court.

31

 

Notwithstanding any other provision of law, any person may purchase, possess, or use tear gas and tear gas weapons for the projection or release of tear gas or tear gas weapon if such tear gas and tear gas weapons are used solely for self-defense purposes, subject to the following requirements:

(a) No person convicted of a felony or any crime involving an assault under the laws of the United States, the State of California, or any other state, government, or country, or convicted of misuse of tear gas under subdivision (g), shall purchase, possess, or use tear gas or any tear gas weapon.

(b)         No person addicted to any narcotic drug shall purchase, possess, or use tear gas or any tear gas weapon.

(c)          No person shall sell or furnish any tear gas or tear gas weapon to a minor.

(d)         No minor shall purchase, possess, or use tear gas or any tear gas weapon.

Penalty provision subdivision (g)(1) of Section 12403.7 provides as follows:

.. ..any person who uses tear gas or any tear gas weapon except in self- defense is guilty of a public offense and is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years or in a county jail not to exceed one year or by a fine not to exceed one thousand dollars ($1,000), or by both the fine and imprisonment.

Section 375, subdivisions (a) and (d) provide as follows:

(a) It shall be unlawful to throw, drop, pour, deposit, release discharge or expose in, upon or about any theater or any place of public assemblage any liquid, gaseous, or solid substance or matter of any kind which is injurious to person

 

or property, or is nauseous, sickening, irritating of offensive to any of the senses….

(d)    Any person who, in violating any of the provisions of subdivision (a), willfully employs or uses any liquid, gaseous, or solid substance which may produce serious illness or permanent injury through being vaporized or otherwise disbursed in the air or who, in violating any of the provisions of subdivision (a), willfully employs any tear gas, mustard gas or any of the combinations or compounds thereof, or willfully employs or uses acid or explosives, shall be guilty of a felony and shall be punished by imprisonment pursuant to subdivision (h) of Section 1170.

b.   Applicable Case Authority

Appellant based his argument on People V. DeLaCruz (1993) 20 Cal.App.4th 955. (“DeLaCruz”).

DeLaCruz was a security guard at a Taco Bell. {Id., 957.) He was armed with Mace for which he had received training and was certified for its use. {Ibid.) DeLaCruz and a patron became involved in an altercation in which DeLaCruz struck the patron with a flashlight. {Ibid.) The two were separated by others but a short time later when they were still separated, DeLaCruz sprayed the patron with the Mace15. {Ibid.) The jury agreed with DelaCruz’s claim of self-defense in the use of the flashlight but rejected his claim of self-defense in the spraying. {Id., 958)

In DeLaCruz, defendant was charged, tried and convicted of a single count of a violation of Section 375. (Id., 58) Defendant had unsuccessfully moved under Section 1118.1 for acquittal claiming he could only be prosecutcd under Section 12403.7 because it was a special statute. {Ibid.)

15 Chemical mace is tear gas within the meaning of the statute. (Cook V. Superior Court (1970) 4 Cal.App.3d 822, 828.)

33

 

DeLaCruz was charged, tried and convicted of at a time when Section 12403.7 contained the following language in subdivision (6)(A):

No person shall purchase, possess, or use any tear gas or any tear gas weapon who has not completed a course certified by the Department of Justice in the use of tear gas and tear gas weapons pursuant to which a card is issued identifying the person who has completed such a course….

In holding that prosecution was precluded by Section 12403.7 from charging a violation of Section 375, the DeLaCruz court first noted “[prosecution] under a general statute is precluded when the facts of the alleged offense parallel the acts proscribed by a special statute.” {Ibid.) Citing In re Williamson (1954) 43 Cal.2d 651, 654, the DeLaCruz court also noted “[w]here [a] general statute standing alone would include the same matter as [a] special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.16

The court found that it was significant that Section 12403.7 did not restrict the place in which an authorized person may use tear gas. (Id., 961.) This omission lead the court to conclude that a person who meets all the conditions and requirements of section 12403.7 may use tear ơas even in a place of public assemblage even though its use would otherwise be prohibited to under Section 375. {Ibid.) The court concluded that it viewed Section 12403.7 as an exception to the more general provisions of Section 375. (Ibid.)

16 This doctrine is often referred to as the Williamson rule. (See People V. Murphy (2011) 52 Cal.4th 81, 86.)

 

The court next noted, however, that its conclusion did not dispose of the issue because prosecution under a general statute is not always precluded when the conduct falls under a special statute. {Ibid.) It was not correct to assume that the Williamson rule was inapplicable whenever the general statute contains an element not found with the four corners of the ‘special’ statute. {Ibid.) “Rather the courts must consider the context in which the statutes were placed.” (Ibid.) If it appears from the entire context that a violation of the ‘special’ statute will necessarily or commonly result in a violation of the ‘general’ statute, the Williamson rule may apply even though the elements of the general statute are not mirrored on the fact of the special statute.” [Citation].

The prosecution argument in regard to common result that one is more likely to use pepper spray when there are no other witnesses around misses an important aspect of the contextual argument in this case. (RT 803) While Section 375 is concerned with locations of public assemblage, it contains no requirement that the area actually be occupied by people at the time of the use of tear gas. Therefore, a parking lot, an empty city plaza, and a school in the afternoon after classes have let out would be a place of public assemblage even though there commonly be could be few, if any, witnesses. Use of tear gas by one person against another person in one of those locations would still be in a location of public assemblage. A violation of Section 12403.7 in one of these locations would also commonly be a violation of Section 375.

Appellant points out many of the prohibitions set out in Section 375 appear to be directed at the dumping of toxic waste and the like which could well have a continuing effect. Tear gas, on the other hand, dissipates relatively quickly.

 

That the court noted that section 375, subdivision (d) did not govern persons certified under section 12403.7 is the recognition that other provisions of law may appear applicable but it is the intent of the legislature they not be. (Id., 963.) The term of art with which Section 12403.7 begins, “[n]ot withstanding other provisions of the law” has been read as an express legislative intent to have the specific statute control despite the existence of otherwise laws which otherwise govern. {Ibid.)

In a footnote, the court stated “[w]e express no opinion on whether an uncertified person using tear gas in a place of public assemblage is subject to prosecution under Section 375, subdivision (d) is not before us. {Id., fn. 2, 963) The court had earlier commented that the “enactment of section 12403.7 authorizing use of tear gas by appropriately trained and certified persons without regard to place, impliedly reflects awareness that such use will frequently be necessary in places of public assemblage.

The provisions for training and certification of individuals to possess and use tear gas tear gas weapons were deleted by legislature by in 1995 by AB 830. (CT 293-296) The legislature apparently decided that public safety no longer required training and certification. The comments on AB 830 noted the purpose of the bill was:

to deregulate all civilian tear gas products, including pepper spray, which will make it more affordable and easier for the public to buy. This bill calls for the removal of all required training and certification requirements to purchase and possess pepper spray.

(CT 295)

The comments to the bill also included the following:

 

Everyone knows how to use an aerosol can. They are used every day from hair spray to bug spray. People know how to spry a can. And that’s exactly what pepper spray is. You just aim it, spray it and run the other way.

(CT 295)

Lastly,

There is no supportable evidence that state certification of tear ?as weapons actually creates a safer environment.

(CT 295)

There is no evidence appellant was a felon, a drug addict or a minor. He met all the requirements set out in Section 12403.7. With public safety no longer requiring certification and training, he was entitled to possess and use pepper spray in a public place as much as was a trained and certified Delacruz. The prosecution was, therefore, precluded from prosecuting him under Section 375. He was not the uncertified person using tear gas in a place of public assemblage DeLaCruz excluded from its holding in fn 2.

(.DeLaCruz, 963.) DeLaCruz rejected respondent’s claim that a trained, certified person using tear gas not in self-defense could be prosecuted under Section 375 because of the context of the statues. {Ibid.) That is exactly what happened in this appeal,

c.   Conclusion

For the many reasons set out above, Section 12403.7 is a special statute that precludes prosecution under Section 375. This court should reverse and enter a judgment of acquittal on the violation of Section 375 set out in Count 4.

 

CONCLUSION

For the reasons stated, this court should:

1.    Reverse and remand regarding the Batson-Wheeler error.

2.    Reverse appellant’s conviction on Count 4 for a violation of Penal Code section 375.

Dated: November 14, 2012

Respectfully submitted,
ALFO

Appell

 

CERTIFICATE OF LENGTH
I, Alfons G. Wagner, appointed counsel for appellant Ly Tong, hereby certify, pursuant to the California Rules of Court, that the word count for this document is 10,047 words, excluding the tables, this certificate, and any attachment permitted under rule 8.204. This document was prepared in WORD and this is the word count generated by the program for this document.

I declare under penalty of perjury under the laws of the State of California that the foreeoing is true and correct.

Dated: November 14, 2012

ALFO]                                          for

Appellant LY TONG

 

PROOF OF SERVICE BY MAIL (CCP S3 1013A. 2015.5)
I am an active member of the State Bar of California whose business

address is 14 Monarch Bay Plaza, #355, Monarch Beach, CA 92629. I am

not a party to this cause.

On November 14, 2012,1 served the attached APPELLANT’S

OPENING BRIEF on the following persons by depositing true copies

thereof in a sealed envelope with first class postage fully prepaid in the

United States mail at Laguna Beach, CA, addressed as follows:

KAMALA D. HARRIS.                   Attorney for respondent

Attorney General of the State of California

455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-3664

Lori Quick

Sixth District Appellate Program 100 N. Winchester Blvd., Suite 310 Santa Clara, CA 95050

Ly Tong

1990 UpHall Court San Jose, CA 95121

Hon. Andrea Bryan

Santa Clara County Superior Court

191 N. First Street

San Jose, CA 95113

Santa Clara County District Attorney 70 West Hedding Street San Jose, CA 95110

 

Daniel Portman

Santa Clara County Public Defender 120 West Mission Street San Jose, CA 95110

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Dated: November 14, 2012

 

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Author: Lý Tống

Lý Tống sinh ngày 01/09/1945 tại Huế, gia nhập Binh chủng Không Quân năm 1965, thuộc Khoá 65A, và du học Hoa Kỳ năm 1966. Vì trừng trị một niên trưởng hắc ám, Lý Tống bị kỷ luật, bị sa thải và trở về nước. Lý Tống được tuyển vào hãng Pacific Architech & Engineer và chỉ trong vòng 3 tháng thực tập ngành Thảo Chương Viên, Lý Tống tự động sửa một program chính của hãng, giảm thiểu nhân số phòng Phân Tích từ 5 nhân viên xuống còn một mình Lý Tống. Do công trạng thần kỳ đó, Lý Tống được Chủ Tịch Hội IBM Chapter Việt Nam đề nghị bầu vào chức Phó Chủ Tịch và cấp học bổng du học ngành Programmer. Nha Động Viên đã gọi Lý Tống nhập ngũ Khoá 4/68 Sĩ Quan Trừ Bị Thủ Đức trước khi Lý Tống hoàn thành thủ tục nên anh bỏ mất cơ hội du học Hoa Kỳ lần thứ nhì. Lý Tống là người duy nhất bị sa thải vì kỷ luật được trở lại Không Quân Khoá 33/69 và tốt nghiệp Hoa Tiêu ngành Quan Sát. Năm 1973, Lý Tống được huấn luyện lái phi cơ A.37, trở thành Phi Công Phản Lực Cường Kích. Vốn là người của xứ cố đô ngàn năm văn vật, Lý Tống là một tổng hợp của nhiều con người : Vừa giang hồ lãng tử, vừa nghệ sĩ, businessman, vừa là hoa tiêu gan lì gai góc. Đề cập đến các chiến tích lẫy lừng với danh hiệu Top Gun của Lý Tống, có câu nhận xét của Phi công cùng Phi Đoàn Ó Đen thường được nhắc nhở đến : “Nếu 4 Vùng Chiến thuật có 4 Lý Tống, VC sẽ không ngóc đầu lên nỗi !“. Về Danh Hiệu PAPILLON, Lý Tống đã sáu (6) lần vượt ngục, chỉ thua Papillon Pháp, người vượt ngục chín (9) lần. Sự khác biệt giữa Henri Charrièrre và Lý Tống gồm các điểm : * Henri chuyên vượt ngục bằng đường biển, Lý Tống “chuyên trị“ đường bộ.* Henri luôn luôn dùng tiền nhờ người khác giúp đỡ và hợp tác, Lý Tống chỉ trốn một mình và mọi kế hoạch từ A đến Z đều chính tự mình vạch ra và thực hiện. * Ngoài ra, Henri chỉ chú tâm vượt rào “ra“ vì sự sống còn của bản thân, Lý Tống còn 3 lần vượt rào “vào“ các Phi trường (2 lần Phi trường Tân Sơn Nhất và 1 lần Phi trường Ubon Rachathani tại Thái Lan, tức Tổng cộng 9 lần bằng Henri Charrière) để đánh cắp máy bay, thi hành các Điệp vụ vì sự sống còn của Dân tộc VN. Thành tích vượt ngục được Ông Julian, Trưởng Phòng Phản gián Singapore, đánh giá : “Lý Tống là bậc thầy của Papillon“. Tháng 09/1981 Lý Tống rời quê hương tìm tự do bằng đường bộ, xuyên qua 5 quốc gia, dài hơn 3 ngàn cây số, trong thời gian gần 2 năm, trốn thoát 3 nhà tù, cuối cùng bơi qua eo biển Johore Baru từ Mã Lai đến Singapore, và được chính phủ Hoa Kỳ chấp thuận cho đi định cư tại Mỹ vào ngày 01/09/1983. Cuộc hành trình vượt biên tìm tự do của Lý Tống ly kỳ vô tiền khoáng hậu, độc nhất vô nhị của thế kỷ 20 được Tổng Thống Ronald Reagan vinh danh qua nhận định : “Your courage is an example and inspiration to all who would know the price of freedom“ (Sự can trường bất khuất của Lý Tống là một biểu tượng và nguồn cảm hứng cho những ai muốn biết cái giá của tự do) ; và được ca tụng bởi những Tờ báo, Tạp chí nổi tiếng nhất thế giới như : Barry Wain của The Wall Street Journal : “Ly Tong is in a class by himself“ và Anthony Paul của Reader’s Digest : “His flight has become one of the great escape saga of our time“....... (Xin đọc thêm các bài tiểu sử của Lý Tống)

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