S.C. Upholds Death Sentences for O.C. Gang Leader, Two Others

Tuesday, August 27, 2013

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S.C. Upholds Death Sentences for O.C. Gang Leader, Two Others

By KENNETH OFGANG, Staff Writer

The California Supreme Court yesterday unanimously upheld the death sentences for defendants in three separate cases, including that of a gang leader considered so dangerous he is presently confined to a federal “SuperMax” prison.

In opinions running to more than 100 pages each, the justices rejected all contentions raised by Hung Thanh Mai, Bryan Maurice Jones, and Willie Leo Harris. The cases came from Orange, San Diego, and Kern counties, respectively.

Mai, with multiple prior felony convictions and now confined to the Administrative Maximum facility of the Florence Federal Correctional Complex, was sentenced to death in 2000 for the 1996 slaying of California Highway Patrol Officer Don Burt Jr., who was shot 11 times following a routine traffic stop near the intersection of Nutwood and Placentia Avenues.

The defendant did not contest his guilt, allowing the judge to reach a verdict on guilt and special circumstances on the basis of the preliminary hearing transcript, so that the case went to trial before a jury solely to determine the penalty. Mai then rejected his attorneys’ efforts to present evidence in mitigation, and instead testified in narrative form.

He told jurors:

“I personally feel that the maximum penalty is properly suited for this occasion. I also feel that it is the right thing for you, the jurors, to do. Being in my situation now I feel it is only fair, there’s a price to pay for everything in life, now that I am here it’s time I pay that price. Because, after all this entire ordeal, it is just part of the game.”

Mai had previously been sentenced to 24 years in prison as part of a deal with federal authorities, who charged him in 1998, while he was in state custody awaiting trial, with conspiring to kill a prosecution witness located in Texas.

Plot Goes Awry

That plot went awry when the person hired to kill Alex Nguyen turned out to be an undercover Santa Ana police officer. Also charged with conspiracy were Mai’s girlfriend, Victoria Pham, defendant’s girlfriend; Daniel Watkins, an investigator then working with Mai’s attorneys; and another gang member.

Mai agreed to plead guilty to conspiracy, partially in exchange for a prosecution recommendation of leniency for Pham. Watkins, who was alleged to have gone to Texas to search for Nguyen, pled guilty to a lesser charge and was sentenced to 46 months in prison.

Mai agreed to waive any conflict of interest that his attorneys, Dennis O’Connell and George Peters, might have in regard to Watkins’ activities. Watkins’ attorney, James Waltz, had faxed a memorandum to the federal prosecutor’s office claiming the federal case against Watkins was “phony,” and asserting that he intended to call Peters and O’Connell as defense witnesses.

Orange Superior Court Judge Richard L. Weatherspoon accepted Mai’s waiver, which the defendant reiterated after being advised by Gary Pohlson, who was appointed by the judge as independent counsel in the matter.

Mai’s appointed counsel on appeal, Deputy State Public Defender C. Delaine Renard, argued that the Waltz memo established a conflict that tainted the conviction and sentence, regardless of the waiver. The defendant could not have understood the extent to which the conflict impacted his rights, Renard argued.

But Justice Marvin Baxter, writing for the court, said there was no conflict and no prejudice. Noting that Watkins himself never claimed that the lawyers were involved in the plot, Baxter said the Waltz memo was an ambiguous set of “off-the-cuff assertions” which “appear to have been a lawyer’s clumsy, informal, and preliminary attempts to advocate on a potential client’s behalf, and perhaps to apply some kind of tactical leverage against Peters and O’Connell as potential witnesses in Watkins’s case.”

Baxter went on to reject the remaining defense assertions, including a claim that Weatherspoon should have held a competency hearing after Mai’s lawyers complained that the conditions of his confinement were causing him to deteriorate and become increasingly uncooperative.

Noting that neither the defense psychologist nor the lawyers ever claimed the defendant was incompetent, Baxter explained the impact of confinement conditions would not raise a reasonable doubt as to competence unless they render the defendant “mentally unable, rather than emotionally unwilling, to help with his defense.”

The justice explained:

“We have frequently recognized the distinction, as counsel apparently did, and have made clear that an uncooperative attitude is not, in and of itself, substantial evidence of incompetence.”

Nor, Baxter said, does a defendant’s unwillingness to present mitigating evidence and testimony in favor of his own execution constitute sufficient reason, in and of themselves, to doubt his competence.

Liu’s Concurrence

While the court’s decision was unanimous, Justice Goodwin H. Liu wrote a concurring opinion, questioning the judge’s denial of the defense Batson/Wheeler mistrial motion, made after all three of the African-American prospective jurors were struck from the panel. The judge’s ruling that the prosecution’s proffered explanations were race-neutral and reasonable, which the high court upheld, was not entitled to deference because the judge gave an insufficient explanation, Liu argued.

The justice concluded, however, that an independent review of the record established that the ruling was correct.

In the Jones case, the court upheld the suspected serial killer’s death sentences for the murders of two women, along with convictions for the attempted murders of two others, and the commission of forcible rape, sodomy and oral copulation against one of the attempted murder victims.

Authorities said they believe Jones murdered two other women as well. Jones was charged in the case in 1992, while serving a 22-year prison sentence for sexual assault. His appeal, argued by Deputy State Public Defender Joseph E. Chabot, focused on claims that the judge erred in allowing evidence of one of the uncharged murders as proof of identity, motive, and intent.

The court said the evidence properly linked the testimony of the witnesses in the case, including the two surviving victims, because the crimes were sufficiently similar and occurred within a small area in East San Diego.

In the Harris case, the court upheld the death sentence for the 1997 murder of Alicia Corey Manning, 22, with rape and robbery special circumstances. The victim was only three weeks away from graduating from California State University, Bakersfield when she was stabbed to death in her apartment. Harris’ appellate counsel, Richard Targow, argued that the defendant’s retrial—jurors deadlocked 11-1 for conviction the first time the case was tried—should have been moved because of prejudicial pretrial publicity, which he said was exacerbated by racial attitudes in the community, the defendant being black and the victim white.

Justice Ming Chin said there was no abuse of discretion in denying a change of venue, noting that the court eventually empaneled a jury on which two members had never heard anything about the case and the other 10 knew little about it and did not appear to have been affected by any of the publicity.

Liu concurred separately, again questioning the high court’s Batson/Wheeler jurisprudence and the trial court’s handling of the defendant’s mistrial motion, but finding no basis for reversal.

Arguing for the prosecution were Deputy Attorneys General Adrianne S. Denault in People v. Mai, 13 S.O.S. 4420, Karl T. Terp in People v. Jones, 13 S.O.S. 4453, and Amanda D. Cary People v. Harris, 13 S.O.S. 4483.