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Court of Appeal:
Murder Conviction Invalid Based on Use of Gang Evidence
Conviction of Same Defendant Was Reversed in 2017 Because Gang Evidence Was Barred; Opinion Says That at Third Trial, Court Should Avoid All-or-Nothing Approach to References to Gang Membership
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal yesterday reversed a murder conviction because the prosecution improperly introduced evidence that the accused was a member of a street gang—with the decision marking the second time a conviction of that defendant was upset, the first time because gang evidence was excluded.
Acting Presiding Justice Patricia D. Benke authored the opinion which invalidates the 2019 conviction of Phong Thanh Huynh, upon a retrial. The victim had been gunned down in 2000.
“In reaching our decision, we are not unaware of the difficulty faced by the trial court in the instant case, as it admitted all the gang evidence as a result of our previous decision in Huynh I, where we reversed defendant’s conviction because the court had excluded certain gang evidence sought to be admitted by defendant,” Benke said. “On remand, instead of an ‘all’ (i.e., the instant case) or ‘nothing’ (i.e., Huynh I) approach to the admission of such evidence, the trial court as the gatekeeper of the evidence may appropriately limit the admission of gang evidence as relevant to the issues raised by the parties and in accordance with the dictates of this decision.”
Evidence Barred
At his first trial, in 2015, the defense lawyer sought to impeach testimony of prosecution witnesses by eliciting from them an acknowledgement that they were members of “V-Boys,” a street gang that was a rival to Thien Dang, a gang to which Huynh belonged. The evidence was barred.
“This evidence was relevant,” then-Justice Gilbert Nares (now retired) said in an unpublished Feb. 24, 2017 opinion reversing the conviction.
He explained that it tended to show that the man who was murdered “associated with V-Boys, showing bias on the part of witnesses at trial who were also associated with or members of the V-Boys” and “undermined” testimony that Huynh had confessed to the murder while in the apartment of a member of the rival gang. The error, Nares declared, was not harmless.
At the second trial, in 2019, reference to gang membership was unrestricted, with the prosecutor advising in opening remarks that the events relate to “the world of gangs.”
Benke’s Opinion
Benke said:
“There is an overwhelming likelihood that the jury used evidence of defendant’s membership in Thien Dang for an illegitimate purpose.”
The jurist explained:
“Here, there was no evidence that Thien Dang was a criminal street gang; nor was there any evidence that committing crimes was one of its primary activities or that any of its members had committed any crimes, with the exception of defendant’s crimes at issue here. Rather, the evidence established that Thien Dang was a place or a group of Vietnamese men who gathered to socialize and drink….Yet, throughout the trial Thien Dang was treated as a criminal street gang. And…the prosecutor without foundation continually attributed the culture and habits of members of a criminal street gang to defendant.
“Moreover, we note no gang allegations were charged here, making the risk of injecting undue prejudice particularly high.”
Benke said this was “compounded” by a hypothetical question posed by San Diego Deputy District Attorney Christopher Lawson to an expert on gangs, querying as to “someone who was on the fringe, let’s say in the street-gang world hanging out with known gang members” and who was “sort of dabbling in the world of gangs or even a gang member.”
The jurist declared:
“Evidence that defendant was a member of a noncriminal gang did not show that he was on the fringe of criminal street gangs, dabbling in the world of gangs or even a gang member or associate, as the term ‘gang’ was used throughout the trial, i.e. that a ‘gang’ is a criminal street gang.”
She added that “the hypothetical was impermissibly based on guilt by association.”
The errors, Benke said, amount to a deprivation of due process in violation of the Fourteenth Amendment. She wrote:
“When a defendant has been deprived of federal due process, reversal is required unless the State can prove beyond a reasonable doubt that the error did not contribute to the verdict….Irrelevant, inflammatory evidence that defendant was a gang member contributed to the verdict here. As such, we conclude defendant’s murder conviction and the jury’s true finding that he personally discharged a firearm during the commission of this offense must be reversed.”
Huynh was sentenced by San Diego Superior Court Judge Amalia L. Meza to a term of 50 years to life in prison—the same sentence meted out at the first trial by Judge Frederic L. Link of that court.
The case is People v. Huynh, D076559.
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