Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of the County of Los Angeles No. GA070684, Lisa B. Lench, Judge.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Viet H. Nguyen, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury found defendant and appellant Thao Lenghiem (defendant) guilty of one count of being an accessory after the fact to a murder based on defendant’s false and misleading statements to the police concerning the perpetrator’s lack of involvement in the crime. On appeal, defendant contends that her statements to the police that formed the predicate act for the crime charged should have been suppressed because they were obtained following her arrest without probable cause. Defendant also contends that the true finding on the gang enhancement allegation was not supported by substantial evidence.
Because there was probable cause to arrest defendant, the trial court did not err in denying her motion to suppress her otherwise voluntary statements to the police, and there was substantial evidence to support the true finding on the gang enhancement allegation. We therefore affirm the judgment.
FACTUAL BACKGROUND
On November 18, 2006, City of Monterey Park Police Officer Ronald Lee was assigned to the crime impact team. His primary responsibilities were to investigate Asian gangs and Asian-related crime activity, including narcotics violations. He and a probation officer conducted a probation compliance check at the residence of David Do in the City of Rosemead. Do, who was a Wah Ching gang member, answered the door. When Officer Lee entered the house, he saw defendant, co-defendant Garrett Quon, and Anne Chan. Quon told Officer Lee that he was a former member of the Wah Ching gang, and defendant told the officer that she was an “associate” of that gang.
According to Officer Lee, an associate of a gang is “someone that is going to hang out with the gang on a regular basis. Someone that is familiar with what the gang is involved in, is familiar with the enemies of that gang.”
Just before midnight on December 1, 2006, Hung Tu was seated at a table playing cards outside the Lollicup on Valley Boulevard in San Gabriel. He was facing the inside of the restaurant with his back to the parking lot. He turned around and saw a white four-door car pull up to and stop at the location. There were four people in the car and one of them asked, “What kind of gang [do you] belong to?” The person who made the inquiry leaned his head outside the rear passenger window of the car. Tu replied that he did not belong to a gang, but the rear passenger repeated the question. Tu gave the same reply, heard “some voice from [his] friend, ” and then he heard gunshots. He did not know how many shots were fired, but he was hit three times-in the left side near his hip, in the left side under his armpit, and in the head near his right eyebrow. The first shot struck him while he was seated, causing him to stand up, look back, and then run. When he stood up, he saw the same person who had questioned him seated in the right rear passenger seat of the car with a gun. Tu observed the car leave the scene traveling “fast.” Tu was transported to the hospital where he stayed for six weeks. During his stay, a detective showed him six black and white photographs, one of which he identified as a photograph of the shooter. He had seen the shooter before at a juvenile camp. His name was David Do.
On December 1, 2006, Tieu Vu Math, also known as Mimi, went with some friends to the Lollicup on Valley Boulevard in San Gabriel. She arrived with her friend Tony, and they met a few other friends there. As she left the restaurant, she saw Tu playing cards with some of his friends. When she reached the sidewalk, she saw a small, white car pull into the Lollicup parking lot “moving slowly, ” and she noticed more than two people inside the vehicle. After the car came to a stop, she heard a male, Do, on the right passenger side of the car asking “other people where they [were] from.” Do’s head was “sticking out” of the car. After Do asked the people in front of the restaurant where they were from, Mimi heard Tu respond and then heard gunshots. She saw people running and saw Tu lying on the ground bleeding. The white car exited the parking lot at a high rate of speed. After the shooting, Mimi told police officers that Do was the shooter. Thereafter, the police showed Mimi photographs of different people from which she picked Do’s photograph and identified him as the shooter.
Mimi had seen the man twice before at two different “beverage places.” The first time she saw him, a friend introduced him to her as David Do.
On December 1, 2006, Charles Zhu was sitting outside the Lollicup in San Gabriel having a drink and playing cards with friends. Around midnight, he noticed a car with three people inside pull up to his location. The car stopped and someone seated in the right front passenger seat asked Zhu and his friends where they were from. Someone near Zhu replied, “Nowhere.” Then the man in the front passenger seat shot at Zhu and his friends, causing everyone to run. One of Zhu’s friends, Tu, returned to the Lollicup and told Zu he had been shot. Someone else whose name Zhu did not know was shot and killed. Following the shooting, Zhu was interviewed by detectives who showed him a page with photographs on it from which he identified a photograph of Do as the shooter.
Approximately a week before December 1, 2006, Chau Ly was sitting outside the Lollicup in San Gabriel when a car pulled up to that location and stopped. A female, who Ly later identified as defendant, was driving and there were two passengers, one of whom was a male sitting in the front. That male said, “Where you from?” When someone answered, “Nowhere, ” the car left. On December 1, 2006, Ly was again at the Lollicup with her ex-boyfriend Vinh and her friend Mimi. As they prepared to leave, Ly noticed a white car moving into the parking lot of the plaza in which the Lollicup was located. There were three or four people inside the car which came to a stop in front of the Lollicup. The windows of the car were down and the same male that Ly had seen at the Lollicup a week before was sitting in the rear passenger seat. Defendant, who had a nose ring, was sitting in the front passenger seat. Ly heard the male in the rear passenger seat say, “Where are you from?” Then he said “Wah Ching.” Someone answered “Nowhere, ” at which point five or six shots were fired from the car, causing Ly to run to her ex-boyfriend’s car. Following the shooting, Ly was shown two sets of six photographs, one depicting males and the other females. She identified Do from the set of male photographs.
In December 2006, Los Angeles County Sheriff’s Detective Steven Lankford was assigned to the homicide bureau, working with his partner Sergeant Cochran. They were assigned as the lead investigators concerning a shooting that took place just before midnight at a plaza on Valley Boulevard in San Gabriel. The shooting occurred in the parking lot in front of the Lollicup. The San Gabriel police had assembled witnesses inside the Lollicup, and Detective Lankford and Sergeant Cochran took the witnesses individually to the location next door to interview them. At the scene, the detectives recovered one expended bullet and three fragmented bullets. They also recovered a bullet from the victim, Gip, who was pronounced dead at the scene, and one from the surviving victim, Tu.
Forensic pathologist David Whiteman performed the autopsy on Gip. Gip had suffered three gunshot wounds, one in the right back and two on the right torso near the underarm area. The wound to Gip’s back was fatal.
On December 5, 2006, Los Angeles County Sheriff’s Sergeant Michael Trujillo was assigned to a surveillance and apprehension team for the major crimes bureau. His team was working with homicide investigators Lankford and Cochran on a homicide in which Do was involved. That day they were surveilling a residence when they saw a white car pull into the driveway. The front passenger, identified as defendant, exited the car and entered the back seat. Do then ran down the driveway and entered the front passenger seat of the car. The car left the scene, and Sergeant Trujillo notified patrol units to conduct a traffic stop of the car. He arrived at the scene of the stop and saw Quon exit the vehicle from the driver’s seat and also saw Do and defendant exit.
Defendant was arrested and taken to the Temple Sheriff’s station to be interviewed by Detective Lankford and Sergeant Cochran. During the interview, defendant made the following statements. On December 1, 2006, defendant was with her boyfriend, Quon, and two friends, Do and Paul, eating at Islands in Pasadena. After they ate, they walked around the “Paseo” in Pasadena for a while and then they went to Do’s house. Defendant denied that they went to the Lollicup that evening. But she admitted to being a former Wah Ching gang member. Defendant also claimed that she did not see Do, Quon, or Paul with a gun that night.
On August 28, 2007, Detective Lankford and Sergeant Cochran interviewed defendant again. They informed her that she was being charged as an accessory after the fact. Defendant said that after she was initially arrested on December 5, 2006, she went to Las Vegas because her friends had threatened her. She then explained that on the night of the shooting, she was with Quon, Do, and Paul in Quon’s mother’s white, four-door BMW. Quon was driving, defendant was in the front passenger seat, Do was in the right rear passenger seat, and Paul was in the left rear passenger seat. Do and Quon wanted to “go banging, ” trying to “hit people up.” They drove to a parking lot and “saw a whole bunch of guys and girls mixed together.” They drove up to the group and Do said, “Where you from?” Someone in the group replied “Nowhere, nowhere, nowhere, ” but as Quon drove away, someone in the group “claimed AKB or something... [as if] they were trying to make a scene....” Do then began to shoot, although defendant claimed no one else in the car knew he had a gun. Quon initially stopped the car because he was unsure what to do. Quon then drove away from the scene. After the shooting, defendant wanted to “say something” about the shooting, as did Quon. But when Do threatened defendant, Quon told her not to say anything. From that point, Do made Quon and defendant “stay around him;” he would not let defendant “go.” Do told defendant that he sold the gun he used in the shooting to “some Cholo” in El Monte.
Los Angeles County Deputy Sheriff Jose Nanquil was assigned to the Asian gang special problems unit for Industry Sheriff’s station. Based on his experience investigating gang-related criminal conduct, he was very familiar with the Wah Ching Asian gang. It had at least 200 members. Like most Asian gangs, Wah Ching did not claim a particular territory, but Deputy Nanquil knew they committed crimes and frequented the east San Gabriel Valley. The gang had signs and symbols, including the initials WC and the number 23. Wah Ching had a rivalry with “just about every Asian gang....” The crimes in which the Wah Ching gang engaged included “murder, attempt[ed] murder, possession of a firearm, assault with a deadly weapon, [and] sales of narcotics....”
According to Deputy Nanquil, “[r]espect is everything” within the gang culture. In Asian gangs, members will leave the gang if an incident occurs that causes the gang to lose respect. A gang gains respect in a community by committing crimes and promoting fear. When a gang member commits a crime, he demonstrates his allegiance to the gang and instills fear of the gang in members of the community in which the crime is committed. The commission of crimes also promotes the gang’s reputation with members of other gangs in the community where the crimes are committed.
Deputy Nanquil was familiar with Do and, in the deputy’s opinion, Do was a member of the Wah Ching gang in December 2006. Deputy Nanquil was also familiar with Quon and defendant, and he concluded that both of them were Wah Ching gang members in December 2006.
In response to a hypothetical question based on the facts of the shooting, Deputy Nanquil opined that, if three Wah Ching gang members drove up to a group of Asian youths, asked “where are you from, ” and announced the name of their gang, the subsequent shooting by one of those gang members of two of the Asian youths from the group would be crimes committed for the benefit of the Wah Ching gang. The seriousness of the crimes would enhance the gang’s reputation, promote fear in the community, and enhance the gang’s ability to recruit new, younger members from the community. According to Deputy Nanquil, a person who informed on a gang or made a statement against a gang is considered a “snitch.” Gang members do not look favorably upon snitches and do not give them any respect. Members of a gang may also threaten or physically harm a member who is a snitch.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney charged defendant in an information with the crime of accessory after the fact in violation of Penal Code section 32. The District Attorney alleged that the charged offense was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1)(A).
The District Attorney charged defendant’s boyfriend and co-defendant Quon in counts 1 and 2 of the information with the murder of Gip and the attempted murder of Tu.
All further statutory references are to the Penal Code.
Following trial, the jury found defendant guilty of the crime of accessory after the fact in violation of section 32 and found true the gang enhancement allegation under section 186.22, subdivision (b)(1)(A). The trial court sentenced defendant to the low term of one year and four months, plus an additional two-year term for the true finding on the gang enhancement allegation. The trial court awarded 1218 days of custody credit comprised of 812 days of actual custody credit and 406 days of conduct credit. Because the custody credit awarded was equal to or exceeded the amount of time imposed, the trial court released defendant.
DISCUSSION
A. Suppression Motion
1. Background
Prior to trial, the trial court heard Quon’s motion to suppress in which defendant joined. Sergeant Trujillo and Detective Lankford testified to facts in support of the probable cause to arrest Quon and defendant.
Sergeant Trujillo met with Detective Lankford who informed him that Do was a suspect in a murder. Detective Lankford also gave Sergeant Trujillo Do’s address and names of known associates of Do, including Quon. Sergeant Trujillo was further advised that, in addition to Do, there was an Asian male suspect and an Asian female suspect with Do in the white compact car involved in the shooting.
On December 5, 2006, Sergeant Trujillo conducted surveillance on Do’s residence. He saw a white vehicle pull up in front of the house with a male driving and a female in the front passenger seat. The female exited the front seat and entered the rear passenger seat. Another male entered and occupied the front passenger seat and the vehicle left the residence. Sergeant Trujillo directed a patrol unit to conduct a traffic stop of the vehicle. When he arrived at the scene of the stop, he saw that Quon was the driver, defendant was the rear passenger, and Do was the front passenger. All of them were placed under arrest.
Prior to the arrests, Detective Lankford had interviewed several witnesses who were present during the shooting. Although the witnesses’ recollection concerning the color of the shooter’s car varied, the descriptions of the people in the car were “pretty much the same”-Do, as the shooter in the right rear passenger seat, with another Asian male and an Asian female in the front of the car. One of the witnesses told Detective Lankford that the Asian female had either blond hair or a streak of blond in her hair. The witnesses also relayed that the gang name Wah Ching was mentioned just prior to the shooting.
The consensus of the witnesses was that the car was light-colored, possibly white.
Detective Lankford had spoken to Officer Lee about a “probation search” the officer conducted at Do’s residence on November 18, 2006. According to Officer Lee, Quon and defendant were at Do’s residence during the search and they both admitted Wah Ching gang membership.
On December 4, 2006, Detective Lankford obtained a warrant for the arrest of Do. He and his partner were in contact with the team that was surveilling Do’s residence and which made the traffic stop on December 5, 2006. The team that made the stop gave Detective Lankford descriptions of the persons in the car and a description of the car that were consistent with the descriptions Detective Lankford had been given by witnesses of the shooting on December 1, 2006. Detective Lankford also recalled that when defendant was arrested and booked, she had a blond or light brown streak in her hair.
Following the officers’ testimony, the trial court heard argument and then ruled on the motion. According to the trial court, defendant was arrested, not detained, and Detective Lankford made the decision to arrest. Based on the information that Detective Lankford had at the time of defendant’s arrest, the trial court denied the motion to suppress, finding there was probable cause to arrest defendant.
2. Probable Cause
Defendant contends that Detective Lankford did not have probable cause to arrest her on December 5, 2006, for the shooting that occurred on December 1, 2006. According to defendant, the witnesses’ descriptions of the Asian female involved in the shooting were too general to support a reasonable inference that defendant was that female.
“‘The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In conformity with the rule at common law, a warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed.’ (Devenpeck v. Alford (2004) 543 U.S. 146, 152 [160 L.Ed.2d 537, 125 S.Ct. 588].)” (People v. Thompson (2006) 38 Cal.4th 811, 817.) “‘Probable cause exists when the facts known to the arresting officer would persuade someone of “reasonable caution” that the person to be arrested has committed a crime. [Citation.] “[P]robable cause is a fluid concept-turning on the assessment of probabilities in particular factual contexts....” (Illinois v. Gates (1983) 462 U.S. 213, 232 [76 L.Ed.2d 527, 103 S.Ct. 2317].) It is incapable of precise definition. (Maryland v. Pringle (2003) 540 U.S. 366, 371 [157 L.Ed.2d 769, 124 S.Ct. 795].) “‘The substance of all the definitions of probable cause is a reasonable ground for belief of guilt, ’” and that belief must be “particularized with respect to the person to be... seized.” (Ibid.)’ (People v. Celis [(2004)] 33 Cal.4th [667, ] 673.)” (People v. Thompson, supra, 38 Cal.4th at p. 818.)
“In reviewing the trial court’s ruling on the suppression motion, we uphold any factual finding, express or implied, that is supported by substantial evidence, but we independently assess, as a matter of law, whether the challenged search or seizure conforms to constitutional standards of reasonableness. (People v. Williams (1988) 45 Cal.3d 1268, 1301 [248 Cal.Rptr. 834, 756 P.2d 221].)” (People v. Hughes (2002) 27 Cal.4th 287, 327.)
The trial court concluded that Detective Lankford made the decision to arrest defendant, and therefore determined the issue of probable cause to arrest based on the information the detective knew at the time of defendant’s arrest. That information included the details of the November 18, 2006, probation compliance check less than two weeks prior to the shooting, during which defendant and Quon were found associating with Do and each of them admitted to being active or former Wah Ching gang members or associates. Detective Lankford was also aware that a week before the shooting, a witness observed Do drive past the Lollicup, accompanied by an Asian male and an Asian female. During that incident, Do was heard asking persons sitting outside the Lollicup where they were from. Detective Lankford also interviewed several eye witnesses to the shooting who, in addition to identifying Do as the shooter, told the detective that Do said “Wah Ching” just before the shooting and was accompanied in a light-colored car by an Asian male and an Asian female. One witness also reported that the Asian female had blond hair or a blond or burnt streak in her hair, but it is unclear whether this description of the female suspect’s hair color was provided to the arresting officers prior to their stop of the suspect vehicle. Detective Lankford recalled that defendant had a blond or burnt streak in her hair on the day of her initial arrest and interrogation.
The information that Detective Lankford had on that day of the arrest was sufficient to support a reasonable belief that defendant was the Asian female who accompanied Do on the night of the shooting. Detective Lankford knew defendant was with Do at his apartment, along with Quon, during the probation compliance check less than two weeks before the shooting and that they were all Wah Ching gang members. A week later, Do was seen driving by the Lollicup with an Asian male and an Asian female, and Do was overheard asking people in front of the restaurant where they were from, which facts suggested that Do and his companions had engaged in gang-related activity at the location of the shooting just a week before. That information, combined with the similar descriptions of the suspects and their car on the night of the shooting, supported a rational inference that the Asian male and Asian female who were found with Do in a white car on December 5, 2006, just four days after the shooting, were the same suspects described by witnesses of the shooting. Contrary to defendant’s assertion, the available information was sufficiently detailed and reliable to justify defendant’s arrest. A person of reasonable caution could have concluded from the totality of the circumstances known to the detective that defendant committed the crime for which she was arrested, i.e., murder.
B. Gang Allegation
Defendant contends that the evidence was insufficient to support the true finding on the gang allegation. According to defendant, although the gang expert testified that the shooting was committed for the benefit of the Wah Ching gang, he did not testify that the crime with which defendant was charged―accessory after the fact―was also committed for the benefit of that gang.
“In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Wilson (2008) 44 Cal.4th 758, 806 [80 Cal.Rptr.3d 211, 187 P.3d 1041].) We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. (Ibid.) If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. (People v. Lindberg (2008) 45 Cal.4th 1, 27 [82 Cal.Rptr.3d 323, 190 P.3d 664].) ‘A reviewing court neither reweighs evidence nor reevaluates a witness’s credibility.’ (Ibid.)” (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
“In 1988, the Legislature enacted the California Street Terrorism Enforcement and Prevention Act (the STEP Act). (§ 186.20, et seq.) ‘The impetus behind the STEP Act... was the Legislature’s recognition that “California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods. These activities, both individually and collectively, present a clear and present danger to the public order and safety and are not constitutionally protected.” (§ 186.21.)’ (People v. Montes (2003) 31 Cal.4th 350, 354 [2 Cal.Rptr.3d 621, 73 P.3d 489].) [¶] [T]he STEP Act prescribes increased punishment for a felony if it was related to a criminal street gang. (§ 186.22, subd. (b)(1).) ‘[T]o subject a defendant to the penal consequences of the STEP Act, the prosecution must prove that the crime for which the defendant was convicted had been “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1)....) [Fn. omitted.] In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a “pattern of criminal gang activity” by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called “predicate offenses”) during the statutorily defined period. (§ 186.22, subds. (e) and (f).)’ (People v. Gardeley [(1996)] 14 Cal.4th [605, ] 616-617.)” (People v. Hernandez (2004) 33 Cal.4th 1040, 1047.)
On count 3, the trial court instructed the jury as follows: “Defendant... is charged in Count Three with being an accessory to a felony in violation of Penal Code section 32. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. Another person, whom I will call the perpetrator, committed a felony; [¶] 2. The defendant knew that the perpetrator had committed a felony or that the perpetrator had been charged with or convicted of a felony; [¶] 3. After the felony had been committed, the defendant either harbored, concealed, or aided the perpetrator; [¶] AND [¶] 4. When the defendant acted, she intended that the perpetrator avoid or escape arrest, trial, conviction, or punishment.”
Thus, by finding defendant guilty on count 3, the jury found that Do murdered Gip; defendant was aware that Do had committed that felony; after the commission of that felony, defendant aided Do by lying to the police about Do’s involvement in and whereabouts during the shooting; and when defendant aided Do, she did so with the specific intent to help him avoid trial, conviction, or punishment.
The gang expert, Deputy Nanquil, / testified that Do, Quon, and defendant were all Wah Ching gang members and that the shooting was committed for the benefit of that gang. He also testified that gang members did not “snitch” on other gang members and that any member who did would not be looked upon favorably or respected. In addition, the expert explained that when a gang member commits a crime on behalf of a gang, it demonstrates his or her allegiance to the gang.
Based on the jury’s findings in connection with count 3 and the testimony of Deputy Nanquil, there was substantial evidence from which a reasonable trier of fact could infer that defendant committed the crime charged in count 3 for the benefit of the Wah Ching gang. As the jury found, defendant was with Do and Quon when Do shot Gip, and the gang expert testified that the shooting was a gang-related crime. Defendant was also with Do and Quon prior to the shooting and when the three were subsequently arrested for suspected involvement in that crime. Nevertheless, when the police confronted defendant about Do’s involvement in the shooting, she lied, thereby providing Do an alibi and the opportunity to avoid conviction. Her conduct in that regard was consistent with the practice of gang members, as described by Deputy Nanquil, concerning not snitching on fellow gang members, and it interfered with and hampered the investigation into Do’s involvement in the shooting. The crime also demonstrated defendant’s allegiance to Do, Quon, and the Wah Ching gang. Thus, defendant’s false and misleading statements to the police under the circumstances reasonably could be construed as actions taken for the benefit of the Wah Ching gang.
DISPOSITION
The judgment is affirmed.
We concur: ARMSTRONG, Acting P.J., KRIEGLER, J.