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Filed 7/28/21 P. v. Wong CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

TJIAK WIE WONG,

Defendant and Appellant.

C081332

(Super. Ct. No. 14F06639)

The issues in this unusual case arise from the theft of a wrist watch at a flea 

market (a “grab and flee”) and the efforts of two employees to apprehend the thief—

efforts that led to an automobile chase through neighborhood streets, culminating in a 

crash into the living room of a home and the subjugation by force and pepper spray of the 

thief and the driver of the car in which the thief was a passenger. 

The pursuit and its aftermath, not the theft, became the basis for the criminal 

charges herein. The theft was considered less blameworthy than defendant Tjiak Wie 

Wong’s pursuit, during which he allegedly rammed the pursued car twice with his truck 
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causing it to crash into the house exposing the occupants to death or serious injury, and 

the assault of the thief and driver that followed. 

Defendant was charged with violations of Penal Code section 245, subdivision 

(a)(1), assault with a deadly weapon (counts one through four); Penal Code section 236, 

false imprisonment (count five); and Penal Code section 22810, the unlawful purchase, 

possession and use of a tear gas weapon, having previously been convicted of felonies 

(count six).

It was also alleged that in the commission of his assaults with a deadly weapon, 

defendant personally inflicted great bodily injury upon the victim, within the meaning of 

Penal Code section 12022.7, subdivision (a), and that defendant had two previous serious 

felony convictions.

Defendant was convicted by a jury of false imprisonment, being a convicted felon 

in possession of tear gas, and four counts of assault with a deadly weapon, to wit, a motor 

vehicle. In a bifurcated proceeding, the court found two strike priors to be true. 

Prosecutorial immunity was granted the thief. On appeal, defendant contends the trial 

court committed prejudicial error in refusing to also grant judicial immunity or compel 

use immunity to the employee who accompanied defendant, and whose testimony 

defendant sought to obtain but could not because the employee invoked his privilege 

against self-incrimination. He also complains of the trial court’s refusal to give a 

defense-requested pinpoint accident instruction. We affirm.

STATEMENT OF FACTS 

In summary, the following testimony was presented at trial:

On the morning of September 21, 2014, 18-year-old Junior V. picked up his 

cousin, 19-year-old Christopher V., in his grandfather’s Chevy Lumina sedan. 

Christopher suggested they go to SD Mart, an indoor flea market, and Junior agreed. 

They shopped at the mart for about 20 minutes but neither made a purchase. Christopher 
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wanted to leave. As they walked back to the car, he told Junior that he had changed his 

mind and wanted to buy something. Christopher suggested that Junior bring the car close 

to the side entrance so he wouldn’t have to walk all the way back to where it was parked. 

Junior got the car and parked it at the side entrance where Christopher had suggested they 

meet. Junior turned the ignition off and was “looking at stuff” on his phone when 

Christopher ran out of the mart, yelling, “Go, go, go,” as he jumped in the car. Junior 

saw two men chasing and yelling at Christopher but could not hear what they said. 

Junior drove off as fast as he could.

The two men in pursuit, later identified as defendant and Ki Kim, got into a blue 

truck and followed Junior’s car at a distance of 10 to 15 yards. Junior was going “maybe 

45 miles” per hour on Mack Road. As they approached the next light he braked 

gradually to 25 to 30 miles per hour to make a right turn. After he completed the turn 

onto Center Parkway, and while going about 40 miles per hour he heard a loud bang and 

felt a “pretty violent crash” to his rear bumper. According to Junior, “I, obviously I heard 

it. There was a loud bang. Both me and my cousin jerked forward. Our heads kind of 

like whip-lashed. And basically I knew we were hit. I didn’t know what the damage 

was. I couldn’t really tell because I[‘ve] never been in that situation before.” Junior later 

pointed to damage on the vehicle from the hit on a photograph.

Junior kept going with the truck right behind them and took the first turn into a 

residential neighborhood. Going about 30 to 40 miles per hour, Junior braked to slow 

down in order to safely turn left at a corner. Before making the turn, he looked to find 

the blue truck, which was not as close as it had been. He thought there was enough 

distance to safely brake left onto the residential street. He then felt the truck crash into 

the back of his car. 

According to Junior, “this time it was a bigger crash. I felt the truck going straight 

into the back of the car. And at that point we hadn’t completed the turn. So basically we 

were facing the house that was on that, you know, corner street. We were facing that 
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house. And I broke as soon as the car hit. I broke but it wasn’t enough.” He was headed 

initially toward a big tree but then he “swerved the wheel to the right and then that was 

the house.” His foot was on the brake the whole time. The car stopped inside the living 

room of the house. He had “sort of a sick feeling,” like he felt when he had a concussion 

before.

Junior got out of the car, heard yelling, and saw Christopher pinned down by 

defendant who had driven the truck, and being kicked by Kim.1 Junior had not seen the 

beginning of the altercation since Christopher had exited the car before Junior. 

Defendant pinned Christopher down with his knees on Christopher’s head and tried to 

handcuff him while Christopher was yelling to get off. Christopher was handcuffed from 

behind. Defendant then told Junior to sit down and Junior complied. Junior saw mace on 

Christopher’s clothing.

Junior identified a gold watch worth $500 and a mace spray can he had seen at the 

accident scene. After he was interviewed by the police, he went to the home of his 

grandparents who took him to the hospital where he was treated and released. At the 

time of trial, he complained of neck pain. After the accident, Junior kept his distance 

from Christopher because Christopher had stolen the watch that led to the collision.

Christopher testified he remembered that he stole a watch from a store but claimed 

he did not remember the collision into the house. He denied having discussed his intent 

to steal with Junior. After Christopher took the watch, he ran to Junior’s car and denied 

seeing anyone chasing him. When he reached the car, Junior drove away. He denied 

seeing anyone pursuing them. He did not recall being hit by another car and never felt 

any other car striking them. He recalled that they crashed into a house, he hit his head on 

the dashboard, and he blacked out. He denied remembering anything else. He did not 

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 Junior admitted that an earlier statement he gave to officers prior to trial that he had 

also seen the men punch Christopher 10 times was not true.
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recall speaking to an officer. Christopher admitted that he and Junior went to SD Mart 

and he had Junior wait in the car while he bought a shirt. He denied telling an officer that 

he took a watch and ran out of a store. He admitted that when he jumped into the car, he 

told Junior to “go” but denied anyone was chasing him. He denied having told an officer 

that the truck hit the car or that he said, “My cousin lost control, and we hit the house.”

Christopher remembered being “burned” from pepper spray but did not recall how 

it occurred. He denied telling an officer that two men punched him five to 10 times in the 

face, maced him, and handcuffed him. Christopher claimed he was under the influence at 

the time. He admitted that he had obtained immunity from prosecution for stealing the 

watch.

Larry Farley was standing outside when he heard the sound of tires screeching. 

He saw a car traveling toward him with a truck following very closely. The car turned 

and went into a house on the corner. Farley was not sure whether the truck hit the car. 

Reviewing his statement to the police wherein he stated that the truck hit the car and sent 

it out of control into the house, Farley stated that he never saw the car actually complete 

its turn before going into the house, instead, it was during the turn. Farley did not recall 

whether the car slowed down when it made its turn. Farley recalled telling the officer 

that the car was traveling at 50 to 60 miles per hour with the truck following it. Farley 

did not know whether the car accelerated into the house or was pushed into the house by 

the truck. There were speed bumps on the road from which the car was turning.

After the car drove into the house, Farley saw the truck pull up behind the car in 

seconds, and defendant got out. Defendant began struggling with someone (Christopher) 

who Farley believed was being held down. Farley thought there was a third person but 

was unclear as to what he was doing. Farley did not hear what was being said. Farley 

did not see anyone hit, punch, or kick Christopher.

Roger Zanzi was inside his house when the car drove through the exterior wall. 

He was temporarily trapped but not hurt. Zanzi saw someone run from the car across the 
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yard—a 19-year-old Hispanic man—and someone else—an Asian man in his 20’s to 

30’s—chasing him, grabbing him, and then a struggle with the Hispanic man trying to

fight to get away. One man pulled the other man to the ground and handcuffed him. 

Zanzi never saw mace being used.

DISCUSSION

I

Prosecutorial Immunity

All four of the players in this drama were potential criminal defendants: Junior 

and Christopher for the theft of the watch, Kim and defendant for the assaults arising 

from the pursuit, and defendant also for possession of the pepper spray. The People 

chose to forego prosecution of the theft and offered immunity to Junior and Christopher 

to facilitate their testimony on the People’s behalf. Given the prosecution’s focus, no 

immunity was offered defendant, the principal in those offenses, nor was it offered to 

Kim. The prosecution explained that while Kim made statements that would have been 

helpful to the prosecution, they were not willing to offer immunity “based on his 

participation in everything that followed the robbery.” He was “essentially an aider and 

abettor in the entire incident.”

Defendant sought to call Kim as a witness and moved that Kim’s testimony be 

given under a grant of judicial immunity. At an Evidence Code section 402 hearing 

defense counsel presented two statements given by Kim to law enforcement. The court 

summarized the two statements on the record as follows.

In the initial statement Kim indicated that he worked for a cousin at a store called 

Gold USA and that Christopher came in wanting to look at a watch. Kim took the watch 

out of the display case and handed it to Christopher. Christopher ran out of the store. 

Kim gave chase, joined by defendant who was in the parking lot. Christopher jumped 

into a gold car with its engine running. Kim and defendant got in the defendant’s truck 
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and pursued. Defendant struck Junior’s vehicle twice. Ultimately, as the vehicle was 

making a left-hand turn and slowing down, the truck struck the back of the car and the car 

went into the house. He did not remember defendant braking or hearing any brakes 

screeching. After the crash, Christopher came out and there was a fight, started by 

Christopher. Then defendant sprayed Christopher with pepper spray and put handcuffs 

on him. Defendant took the watch.

In a subsequent statement, made three and one-half months later Kim said that 

“Mr. Wong,” presumably the defendant, was the manager at SD Mart. A robber stole a 

watch from a store and an employee at Gold USA ran after the thief. Kim ran out to the 

parking lot as defendant was coming out of the Dollar Store. There was a driver in the 

car waiting for the robber. Defendant told Kim to get in the car and asked Kim “What’s 

going on?” Kim told him the watch had been stolen. Kim’s statement mentions calling 

911 and at that moment the “accident happened.” Defendant hit the rear of the car being 

pursued. Kim hung up from the 911 call. The car continued and was making a left-hand 

turn, slowed down abruptly, and defendant struck the back of the car once and the car 

went into the house. Kim and defendant got out. The robber came close with the watch. 

Defendant took the watch. The robber grabbed Kim’s hair and the two fell to the ground 

together. Defendant gave Kim handcuffs to use on Christopher. Kim didn’t know how 

so ultimately defendant handcuffed Christopher.

Defendant’s counsel submitted a written motion and argued orally. He

complained that the police investigation was incomplete, taking a statement from a nonEnglish-speaking person. He complained “there wasn’t the level of detail that would 

have been assumed” and there were “issues even with interpretation.” He thought that 

“Mr. Kim has a lot of exculpatory and granted maybe even inculpatory.” The “most 

problematic piece of information that [he would] like the jury to hear” was that the car 

actually slowed abruptly. He also mentioned Kim’s hair being pulled and mutual 

combat. He complained about the immunity given to prosecution witnesses but “no 
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immunity given to someone who has no criminal background and is a student at UC 

Davis, an economics major.”

The People took the position that Kim was essentially “an aider and abettor in the 

entire incident”; he essentially aided in the assault while defendant held the victim down. 

Statements in his original statement incriminated defendant, indicating he made no effort 

to brake. “[W]e are not willing to give him immunity based on his participation in 

everything that followed the robbery.” 

Defendant’s argument on appeal essentially mirrors his argument before the trial 

court. Noting that the prosecutor granted immunity to Christopher, the admitted robber, 

but refused to grant immunity to Kim, defendant discounts Kim’s initial statement in 

which he stated defendant struck Junior’s car twice and he did not recall defendant 

braking before hitting the car, because it was taken without the aid of a translator, but 

credits the second statement given with the assistance of a translator to correct facts 

misstated in the first statement. In the second statement he indicated the car “was 

slowing down abruptly to make a left-hand turn” when hit by defendant’s truck. The 

second statement also mentions that Kim called 911 at the moment the truck hit the car a 

second time and mentioned that Christopher grabbed Kim’s hair when the two were out 

of their respective vehicles.

Defendant acknowledges the absence of clear authority in California for the grant 

of immunity by a trial court, but cites cases in which the Supreme Court recognized that 

“a judicially conferred use immunity might possibly be necessary to vindicate a criminal 

defendant's rights to compulsory process and a fair trial.” (People v. Hunter (1989) 

49 Cal.3d 957, 974.) Subsequent to trial in this matter, our Supreme Court decided 

People v. Masters (2016) 62 Cal.4th 1019 (Masters), holding that California courts have 

no authority to confer use immunity on witnesses. The court noted that “ ‘the power to 

confer immunity is granted by statute to the executive’ ” and “ ‘prosecutors are not under 

a general obligation to provide immunity to witnesses in order to assist a defendant,’ ” 
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but in appropriate circumstances due process may compel a defense witness to be 

immunized by the prosecution. (Id. at pp. 1051-1052.) The appropriate circumstances 

require a finding of prosecutorial misconduct—“ ‘intemperate behavior [that] is 

sufficiently egregious that it infects the trial with such a degree of unfairness as to render 

the subsequent conviction a denial of [federal] due process.’ ” (Id. at p. 1052.)

Without adopting them as California standards, the Supreme Court set forth the 

factors articulated in two federal cases, Government of Virgin Islands v. Smith (3d Cir. 

1980) 615 F.2d 964, 972 and U.S. v. Quinn (3d Cir. 2013) 728 F.3d 243, 251-257, to 

evaluate claims of prosecutorial misconduct: “ ‘[Witness immunity was] properly sought 

in the district court; [2] the defense witness [is] available to testify; [3] the proffered 

testimony [is] clearly exculpatory; [4] the testimony [is] essential; and [5] there [are] no 

strong governmental interests which countervail against a grant of immunity.’ ” (Quinn,

supra, at p. 251, quoting Smith, supra, at p. 972.)

Referring to California rules on prosecutorial misconduct, the court pointed out 

“Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may 

still constitute misconduct under state law if it involves the use of deceptive or 

reprehensible methods to persuade the trial court or the jury.” (Masters, supra, 

62 Cal.4th at p. 1052.) Under the facts before it, the court concluded it could not 

characterize the prosecutor’s refusal to grant immunity as “egregious, unfair, deceptive, 

or reprehensible” and thus the refusal was not misconduct. (Id. at p. 1053.)

Like the Supreme Court, we cannot find defendant’s request for Kim’s immunity 

is compelled by either federal decisions or by California rules on prosecutorial 

misconduct. It is not the rule that immunity must be granted whenever a potential 

witness can offer relevant and helpful testimony to a defendant. Under federal 

authorities, the testimony must be “essential” and under California authorities the refusal 

to offer immunity must be “egregious, unfair, deceptive, or reprehensible.” 
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In support of his motion, defendant’s counsel insisted that Kim “was literally a 

living video camera sitting next to [defendant].” Not so. Kim was no video recorder but 

a human relating his perception and memory of the events that unfolded. Humans cannot 

read minds or record intent. His testimony was far from unassailable. His initial account 

of the events was consistent with that of Junior, the principal prosecution witness who 

testified defendant rammed his vehicle into Junior’s car, and while Kim could claim that 

his initial account was a misunderstanding, that claim was itself a matter of dispute. In 

any event, his was not the only account. There were other witnesses who offered their 

perceptions of what happened and some of those perceptions assisted defendant. Indeed, 

the testimony of Christopher, the alleged thief, was equivocal. Kim’s testimony might 

have also been helpful to defendant’s cause but, with or without Kim’s testimony, the 

testimony of other witnesses established defendant’s guilt. And there was nothing unfair 

or reprehensible about a prosecutor’s refusal to accord immunity to a person who 

arguably aided and abetted the same offenses as the defendant. The prosecution is not 

required to forego prosecution of a person whose testimony, if believed, might assist an 

accomplice, particularly where other witnesses were available and testified to the facts at 

issue. 

We thus agree with the trial court and reject defendant’s claim.

II

Instructional Error

Near the end of trial testimony, and during a discussion about possible jury 

instructions, defendant’s counsel indicated that he believed an instruction on accident 

would be appropriate. The court expressed the view that “as far as the accident, there is 

no evidence yet, not that I have heard of yet,” and following the testimony of two 

additional witnesses unrelated to that issue, the court later denied the request. Counsel 

presented no argument in support of the request for an accident instruction, but in closing 

argument urged, without objection, that defendant was not guilty because any contact 
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between the two vehicles was accidental. He asserted that defendant had multiple 

opportunities to ram Junior’s car at stop signs along the way but did not, so the contact at 

the end of the chase must have been accidental. Counsel also questioned whether the jury 

could “know beyond a reasonable doubt that [defendant] was driving. And then even if 

he was, did he willfully aim his car at [Junior’s] car?”

On appeal, defendant argues the court erred in refusing to give CALCRIM 

No. 3404, as follows:

“The defendant is not guilty of <insert crime[s]> if (he/she) acted [or failed to act] 

without the intent required for that crime, but acted instead accidentally. You may not 

find the defendant guilty of <insert crime[s]> unless you are convinced beyond a 

reasonable doubt that (he/she) acted with the required intent.”

Defendant cites to the principle that “When a legally correct instruction is 

requested, however, it should be given ‘if it is supported by substantial evidence, that is, 

evidence sufficient to deserve jury consideration.’ ” (People v. Wilkins (2013) 56 Cal.4th 

333, 347, citing People v. Marshall (1997) 15 Cal.4th 1, 39.) In determining whether the 

evidence is sufficient to warrant a jury instruction, the trial court does not determine the 

credibility of the defense evidence, but only whether there was evidence which, if 

believed by the jury, was sufficient to raise a reasonable doubt. (People v. Ramirez

(1990) 50 Cal.3d 1158, 1180.)

The People insist there was not substantial evidence to support the instruction. 

Clearly, defendant struck Junior’s vehicle twice with substantial force. There was no 

evidence that defendant forwent earlier opportunities to ram the car—no evidence of stop 

signs that would have provided such opportunities. Moreover, according to the People, 

given the speed at which the vehicles were traveling and the closeness of defendant’s 

pursuit, it could not be claimed that any collision was an accident. Rather, it was an 

event almost certain to happen. 
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We are also persuaded by the People’s argument that any error was harmless. 

Error in refusing to give a pinpoint instruction requires reversal “only if ‘it is reasonably 

probable that a result more favorable to the appealing party would have been reached in 

the absence of the error.’ ” (People v. Wilkins, supra, 56 Cal.4th at p. 349.) Defendant 

was permitted to argue that collision with Junior’s vehicle was not intentional but an 

accident. His argument failed not for lack of a pinpoint instruction but because the 

evidence established a deliberate effort to run Junior off the road. Defendant succeeded 

in that effort at a point in the pursuit where the vehicle was placed on a trajectory that 

sent it off the road, missing a tree but ending in a house, all at great risk to the occupants 

of the vehicle and the house.

DISPOSITION

The judgment is affirmed.

 /s/

RAYE, P. J.

We concur:

 /s/

HULL, J.

 /s/

RENNER, J.