Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1097581, Scott T. Steffen, Judge.
Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
CORNELL, Acting P.J.
A jury convicted Sithy Bin of shooting at an inhabited building (Pen. Code, § 246), assault with a semiautomatic firearm (§ 245, subd. (b)), and participation in a criminal street gang (§ 186.22, subd. (a)). For the shooting at an occupied building count, the jury found true the allegation that a principal personally used a firearm causing great bodily injury (§ 12022.7), and that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)). For the assault count, the jury found true the allegation that Bin personally used a firearm (§ 12022.5, subd. (a)), and that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)). Bin argues (1) neither the criminal street gang substantive charge nor the enhancement was supported by substantial evidence, (2) his Sixth Amendment right to confront witnesses was violated during the cross-examination of his expert witness, (3) his attorney was ineffective for failing to challenge successfully the great bodily injury enhancement, and (4) his sentence of 40 years to life constitutes cruel and unusual punishment, in violation of both the United States and California Constitutions. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
The family of T.Y. was having a barbecue at their residence (the residence). One of the guests was C.H. C.H.’s boyfriend was S.S. Before S.S. arrived at the barbecue, C.H. decided to go for a ride in the vehicle of another guest, Rathana Reach. C.H. was with Reach when S.S. arrived at the barbecue. When C.H. returned, a confrontation ensued between S.S. and Reach. Angry words were exchanged and then Reach walked toward his vehicle. As Reach approached his vehicle to leave, he exclaimed that he had a bullet waiting for S.S. About an hour later, Reach was observed repeatedly “speeding up and down the street” in front of the residence.
Several hours later, Reach returned to the residence with H.T. and P.N. in his vehicle. A white Mustang with four other people inside arrived at the same time. Rithy Khe was the driver of the Mustang, and Bin and two females were passengers in the vehicle.
Bin, Khe and the two girls headed to the front of the driveway. S.S., T.Y., and his brother, S.Y., approached the group of four. Angry verbal exchanges ensued. S.S. and S.Y. were telling the others that they did not want any trouble at their house. Khe was saying things like “C-dubb” and “why you trying to disrespect C-dubb.” The girls also were yelling “C-dubb.”
The group of four then returned to the white Mustang. S.S. followed and Bin hit S.S. in the back of the head. T.Y. and his brother went to the aid of S.S. T.Y. saw one of the girls pull out a gun and fire it into the air. T.Y. fell to the ground. When he looked up he saw Bin grab the gun from the girl’s hand. Bin began firing the gun towards the residence. The people in front of the residence also fell to the ground. Bin then returned to the Mustang. Khe got into the Mustang and drove away with his passengers. Reach returned to his vehicle and drove away with his passengers. T.Y.’s aunt was injured by one of the bullets. T.Y. denied that Khe attempted to calm the situation, recalling only gang-related statements.
P.N. admitted being a member of the Crips With Attitude (CWA) gang. On the day of the shooting, P.N. was at Bin’s house for a few hours with Bin, Khe, Bin’s brother, Bin’s girlfriend, H.T., and another female. Reach drove up, parked his vehicle, and approached the group. Reach said he had dropped off S.S.’s girlfriend at the barbecue and S.S. became upset. The group decided to return to the barbecue and talk to them to solve the problem. They knew that the younger people at the barbecue belonged to a different gang, the Devils of the North (DOTN).
Everyone got out of their respective vehicles when they arrived at the barbecue. The two groups approached each other. P.N. intended to fight one of the other group members and was yelling “C-dubb.” No one else was saying any other gang phrases. P.N. and his gang decided to leave for the park where the two groups could talk some more and probably fight. As P.N.’s group approached their vehicles, S.S. approached, holding an empty 40-ounce bottle of beer. Bin hit S.S., apparently believing S.S. was going to attack him with the beer bottle. A fight ensued, including many gang taunts. During the fight, P.N. heard gunshots and headed for a car. When he got to the car, he saw a girl shooting a gun into the air. The car he was in drove off and he did not see what happened to the gun. P.N. did not know where the second vehicle went. P.N. testified the second vehicle was a primer gray Honda driven by one of the girls. Khe was not the driver of the vehicle.
P.N. admitted being interviewed by an officer about the shooting, but he claimed he was drunk and high on ecstasy and did not know how he had answered the questions posed to him.
N.P. was attending the barbecue when she observed two vehicles arrive, a white Mustang and a small black Honda. The occupants of the vehicles got out and an argument ensued. Eventually a fight broke out between the two groups. N.P. observed a girl pull out a gun and start shooting into the air. A guy then grabbed the gun from the girl and started shooting towards the residence. After about five to seven shots at the residence, the group got into their vehicles and left. N.P. was not able to identify the individual shooting the gun or who was involved in the fight.
S.S. confirmed that when he arrived at the barbecue, his girlfriend, C.H., was not present because she was riding in Reach’s vehicle. S.S. was upset when Reach and C.H. returned, and he exchanged heated words with Reach. Reach then left.
S.S. was unable to identify Reach at trial, but he testified that C.H. was riding in Rathana’s (Reach’s) vehicle, and he identified Reach in a photo lineup prior to trial.
Reach returned later that evening driving his car and accompanied by a white Mustang. Six to eight people exited the two vehicles. Khe was driving the Mustang. The two groups approached each other and words were exchanged. Reach’s group wanted to fight, so it was suggested that the two groups proceed to the park. Gang-related statements were made by both groups. When S.S. approached Khe to state that he did not want to fight, he was hit by Bin. That is when the fight began.
A short while later a female started shooting a gun into the air. When S.S. looked up again, he saw Bin with the gun shooting at the residence and the people standing near it. After the shooting stopped, the group got back into their vehicles and left. Khe drove away in the Mustang. S.S. heard Khe attempt to calm things down. He did not hear Khe make any gang-related statements.
R.A., C.H.’s brother, testified consistently with S.S.
Ten nine-millimeter casings were recovered from the scene. Ballistics testing established that the casings were fired from a Glock semiautomatic handgun located during a search of Bin’s house.
The information charged Bin, Khe, and Reach with attempted murder (§§ 187, 664), discharge of a firearm at an inhabited dwelling (§ 246), assault with a semiautomatic firearm (§ 245, subd. (b)), and active participation in a criminal street gang (§ 186.22, subd. (a)). In addition the following enhancements were alleged: (1) in counts I and II it was alleged that each defendant was a principal in the offense, and at least one principal in the offense personally discharged a firearm causing great bodily injury within the meaning of section 12022.53, subdivision (d); (2) in counts I, II, and III it was alleged the offense was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b); (3) in counts III and IV it was alleged that Bin personally used a firearm within the meaning of section 12022.5, subdivision (a); and (4) for each count it was alleged that Khe had a prior conviction that qualified as a strike within the meaning of section 667, subdivision (d).
The jury found Bin not guilty of attempted murder. Bin was found guilty of shooting at an inhabited building (§ 246), assault with a semiautomatic firearm (§ 245, subd. (b)), and participation in a criminal street gang (§ 186.22, subd. (a)). For the shooting at an occupied building count, the jury found true the allegation that a principal personally used a firearm causing great bodily injury (§ 12022.7), and that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)). For the assault with a firearm count, the jury found true the allegation that Bin personally used a firearm (§ 12022.5, subd. (a)), and that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)).
The jury found Khe not guilty of attempted murder, discharge of a firearm at an inhabited dwelling, and assault with a semiautomatic firearm (counts I, II, and III). Khe was found guilty of active participation in a criminal street gang. The jury found Reach not guilty of each charged offense.
Bin was sentenced on count II to an indeterminate term of 15 years to life (§ 186.22, subd. (b)(4)), plus an additional term of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)), for a total indeterminate term of 40 years to life. The sentences on the remaining counts and enhancements were imposed concurrently to the indeterminate term.
DISCUSSION
I Sufficiency of the Evidence
Counts II (discharge of a firearm at an occupied building) and III (assault with a semiautomatic firearm) alleged as enhancements that Bin committed the charged felonies for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members pursuant to section 186.22, subdivision (b). Count IV of the information charged Bin with being an active member in a criminal street gang pursuant to the provisions of section 186.22, subdivision (a). Bin argues that neither the enhancement nor the substantive charge was supported by substantial evidence.
“When considering a challenge to the sufficiency of the evidence to support a conviction, 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. [Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 27.) “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]” (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; see also People v. Staten (2000) 24 Cal.4th 434, 460 [“An identical standard applies under the California Constitution”].) “[I]t is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.” (People v. Bean (1988) 46 Cal.3d 919, 933.) “In a case … based upon circumstantial evidence, we must decide whether the circumstances reasonably justify the findings of the trier of fact, but our opinion that the circumstances also might reasonably be reconciled with a contrary finding would not warrant reversal of the judgment. [Citation.]” (People v. Proctor (1992) 4 Cal.4th 499, 528-529.)
We begin with a review of the relevant testimony. The testimony of the events leading up to the confrontation between the two groups offered no major disagreements. S.S.’s girlfriend went for a ride in Reach’s vehicle. S.S. became upset when he returned to the party and discovered his girlfriend was in someone else’s vehicle. An argument occurred with S.S. when Reach and the girlfriend returned. Reach told officers that S.S. challenged him to a fight. Reach left right after threatening S.S. and then raced his car up and down the street in front of the party, apparently to impress S.S. or S.S.’s girlfriend.
Reach ended up at Bin’s house a short while later. Bin was present along with Khe, H.T., P.N., Bin’s brother, and at least two females. Reach related the events that occurred at the party. The group decided to return to the party. Although Bin and P.N. stated they returned to discuss the matter, along with an issue regarding P.N. and another individual, the jury was not required to believe this self-serving testimony. Bin decided to bring his personal handgun with him to the party.
When Bin’s group arrived at the party, an angry confrontation took place, with each side yelling gang slogans. S.S. testified that Bin’s group wanted to fight, but S.S. wanted the fight to occur at a location where the elders would not be present. In at least one account, Bin started the physical confrontation by attacking S.S. Shots were eventually fired with Bin’s handgun, and Bin admitted he also fired the handgun.
The witness who tied these facts together for the prosecution was Modesto City Police Officer Ra Pouv, who testified as a gang expert. Bin does not challenge Pouv’s qualifications, so we will not repeat them. Pouv testified that “CWA” stands for Crips With Attitude, and the gang started 10 to 15 years ago in Modesto. Originally, “CWA” stood for Cambodian With Attitude, but as the gang grew, different nationalities joined and the name changed to reflect this diversity. The gang often is referred to as “C-Dubb.” The total number of gang members varies for several reasons, including that members stop affiliating with the gang when they become older, get jobs, and start families.
We omit from our summary of Pouv’s testimony discussions of primary activities of the gang and predicate criminal acts because Bin does not dispute that CWA meets the statutory definition of a criminal street gang.
Pouv opined that Khe was a CWA gang member and provided substantial evidence to support his opinion, including multiple admissions by Khe to his gang membership. Pouv opined that Reach was an associate to CWA on the date of the incident.
Pouv also opined that Bin was an active CWA gang member on the date of the incident. As a basis for that opinion, Pouv relied on several field information cards, the first dated January 14, 1998, which indicated that Bin was with another CWA gang member; Bin admitted he was a gang member; and he was wearing gang colors. A field information card dated March 30, 1999, indicated that Bin admitted membership in CWA, was with another CWA gang member, and was wearing gang colors. A field information card dated September 17, 1999, indicated that Bin claimed he was a former member of CWA, but he still considered himself to be a Crip. Bin was with two other CWA gang members at the time and was dressed in gang colors. A field information card dated December 17, 1999, indicated that Bin admitted he was a CWA gang member; he was with another CWA gang member; and he was wearing gang colors. Bin also has a tattoo of the letters “CWA” on his left wrist, and a tattoo of a dragon head on one of his legs. Pouv also based his opinion on the facts of the incident itself. Bin was with other CWA gang members at the time of the incident and witnesses identified Bin was one of the individuals yelling gang slogans at the scene.
S.S. admitted to Pouv that he was a member of the Tiny Rascal gang, which associated with the DOTN gang. S.Y. admitted he was at the party, and admitted he was a DOTN gang member.
Pouv also opined that CWA gained “respect” from other gangs and the community by committing acts of violence. These acts of violence establish that CWA is a violent gang, thus instilling fear in, and intimidating, other gangs and the community. Pouv opined that the shooting in question occurred because CWA gang members felt they were being disrespected by the DOTN criminal street gang. As a result of the perceived disrespect, the CWA gang members confronted the DOTN gang at the party. The shooting was an act of violence to obtain the respect of the DOTN gang and the community. The respect and intimidation that was generated by the shooting benefited and promoted the CWA gang. In Pouv’s opinion, that the dispute began over a woman, was irrelevant. Once the confrontation began, the issue came down to the respect CWA demanded. Nor was it relevant that some of the individuals in the two gangs had socialized in the past. Once the confrontation occurred, the issue was respect, not past relationships or the cause of the confrontation.
Pouv was not aware of any rivalry between the DOTN and CWA gangs. Nor did the event occur on DOTN turf.
Bin testified in his defense. He admitted he was a member of CWA at one point, but he dropped out in 1999 when his daughter was born and he moved out of Modesto. He also admitted that in 2004 he purchased the semiautomatic handgun used in the incident. Bin stated he had been attacked by strangers and felt he needed the gun for protection.
On the date of the incident Bin was living with his parents. At approximately 4:00 p.m. he was in front of his parents’ house cooking on a grill. Present were Bin, his mother, father, brother, both of Bin’s children, Bin’s girlfriend Pha Buakhai, and his brother’s girlfriend. Khe, H.T., and P.N. eventually came over to socialize with Bin’s brother. After everyone ate, Reach came over to the house. Reach started bragging that he took a girl out at a party. Reach said the party was at S.S.’s house. Bin decided he wanted to go to the party because he wanted to talk with S.S. and S.Y. because S.S. and four or five other kids were “picking on” H.T. and P.N. at the school they all attended. Bin wanted to resolve the problems at school.
Bin and the others drove to the party. Bin had his firearm with him because he was paranoid after the incident where he was attacked and seriously injured. Bin gave the firearm to Buakhai upon arriving at the party. Bin then approached S.S. and S.Y. Bin could see the hostility in the group that was with S.S. and S.Y. At this point S.S. told Bin about the incident involving Reach and S.S.’s girlfriend. S.S. stated that everything would be dropped if he and Reach could fight each other. As Bin attempted to talk S.S out of the fight, S.S.’s friends surrounded Bin, S.S. and S.Y. Others in the group stated they wanted to fight and appeared to be getting aggravated. The groups began yelling gang slogans at each other. S.S. and his friends decided they wanted to fight at the park and most of them started to walk away. Bin began walking towards his car. As he reached the vehicle, he was attacked from behind. When he turned around he saw S.S. and S.Y. A fight broke out. Bin heard gunshots as he was fighting. Bin saw Buakhai shooting about 12 feet from his location. She shot the gun about five times. Buakhai pointed the gun behind where he and the others were fighting. Bin ran up and grabbed the gun from Buakhai. As he backed up towards the vehicles, he saw S.S.’s group approaching again. Bin shot the gun in the air to keep the group away from him. Bin and his companions jumped into the vehicles and left.
Bin’s retained expert, James Hernandez, testified that CWA fit the criteria for a neighborhood social group, not a criminal street gang. Hernandez also opined that the facts of this case did not necessarily place the case into the context of a gang conflict.
A. Section 186.22, subdivision (b) enhancement
The section 186.22, subdivision (b) enhancement requires the prosecution to prove that the defendant committed the charged felony “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); see also CALCRIM No. 1401.) Bin argues the enhancement was not supported by substantial evidence because it failed to show that he had the specific intent to promote, further, or assist in criminal conduct by CWA. We disagree.
Bin’s argument reads much like one would expect a closing argument to sound at trial. It focuses on the facts favorable to Bin and ignores the facts that are inconsistent with Bin’s theory. He asserts that the conflict was merely a dispute over a girl and some bullying occurring at a local school. He minimizes any gang yelling as childish name calling. He dismisses Pouv’s opinion as an improper conclusion on the topic of how the case should be decided. Each of these assertions simply is incorrect.
The entire record provides ample support for the jury’s finding. Bin was an admitted CWA gang member and, although he left the area for a period of approximately five years, when he returned he immediately began associating with CWA gang members. When Bin learned of a conflict with DOTN gang members, he immediately went to a party at which DOTN gang members were present to address the issue. While Bin claimed an entirely innocent motive to this confrontation, the facts are (1) he took a loaded semiautomatic handgun to the confrontation, (2) he was accompanied by four CWA gang members or associates, (3) CWA gang members began yelling gang slogans at DOTN gang members, (4) at least one witness testified that Bin threw the first punch, and (5) Bin fired the handgun repeatedly at the residence. Moreover, the jury reasonably could have rejected Bin’s self-serving testimony that (1) he wanted only to talk with DOTN gang members, (2) he fought only in self-defense, and (3) he fired the handgun in the air and only in self-defense.
Bin’s assertion that Pouv’s opinion should have been excluded because it “was an improper opinion on the ultimate issue” is not persuasive. To support this assertion, Bin cites People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), a case from this court. However, an analysis of Killebrew and a recently issued opinion from this court, People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon), establishes the distinction between an improper opinion and one supported by the facts of the case.
Killebrew was convicted of conspiracy to possess a handgun. Killebrew was arrested after he was observed in the area of a police stop of a vehicle in which four gang members were driving and in which a handgun was located. Two other vehicles were observed by officers driving in formation with the stopped vehicle. These vehicles were located by other officers at a nearby fast-food restaurant. Officers located a handgun hidden in a box next to the garbage bin utilized by the restaurant. The only fingerprint on the box and the handgun did not belong to Killebrew or anyone else in any of the vehicles. Killebrew was not placed inside any of the three vehicles, although he was identified as a member of the same gang as the individuals who were riding in the vehicles. The People theorized that Killebrew was in one of the vehicles. The People then called an expert witness who opined (1) the three vehicles were driving together, (2) if one member of the group possessed a handgun, he would tell every other member of the group that he had the handgun, and (3) each member of the group therefore would jointly possess the handgun.
We held that these opinions, about the subjective knowledge and beliefs of the people in the vehicles, were improper opinions that should have been excluded because they did nothing more than inform the jury of how the witness believed the case should be decided. (Killebrew, supra, 103 Cal.App.4th at p. 658.) This conclusion was obvious because the officer did not have any basis for concluding that the individual who possessed the gun that night informed any of the occupants of any of the vehicles that he had a gun, or that any of the remaining occupants took any action to suggest that they approved of the presence of the gun, or that they intended to use the gun on that night if necessary. The expert’s opinion was speculation because there was nothing in the evidence that supported the conclusions he reached.
Ramon also is instructive. Ramon was arrested for driving a stolen vehicle and various offenses related to possession of a firearm. The People presented the testimony of a law enforcement officer as an expert on criminal street gangs. This expert testified that Ramon was a member of a criminal street gang, and he was in territory claimed by the gang at the time he was stopped and arrested. The officer opined that possession of a stolen vehicle and possession of a firearm benefited the criminal street gang because they could be used to commit crimes that benefited the gang, and the crimes were committed with the specific intent to promote the criminal street gang. We concluded that the officer’s testimony was not supported by substantial evidence.
“The People’s expert simply informed the jury of how he felt the case should be resolved. This was an improper opinion and could not provide substantial evidence to support the jury’s finding. There were no facts from which the expert could discern whether Ramon … [was] acting on [his] own behalf the night [he was] arrested or [was] acting on behalf of the [gang]. While it is possible [he was] acting for the benefit of the gang, a mere possibility is nothing more than speculation. Speculation is not substantial evidence. [Citation.] ‘“To be sufficient, evidence must of course be substantial. It is such only if it ‘“reasonably inspires confidence and is of ‘solid value.’”’ By definition, ‘substantial evidence’ requires evidence and not mere speculation. In any given case, one ‘may speculate about any number of scenarios that may have occurred.… A reasonable inference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.… A finding of fact must be an inference drawn from evidence rather than … a mere speculation as to probabilities without evidence.’”’ [Citation.]” (Ramon, supra, 175 Cal.App.4th at p. 851.)
The complete lack of any evidence that Ramon was acting on behalf of the criminal street gang to which he belonged compelled our conclusion that the expert had no basis for testifying that the crime benefited the gang or was committed with the specific intent to promote the gang.
Here, on the other hand, there was ample evidence to support Pouv’s opinions. The evidence established that an associate of CWA got into a confrontation with a member of DOTN. This associate, Reach, left after being challenged to a fight. A logical deduction from these largely uncontested facts was that Reach, and consequently CWA, was disrespected by the other gang.
Reach then met with other members of CWA, including Bin. Bin not only decided to accompany the group, he brought a firearm with him. While Bin claimed it was solely for protection, the jury could have inferred that the firearm was brought along to ensure CWA received the respect the group felt was due. The group obviously decided to address the situation because they drove back to the party, where a confrontation turned into fisticuffs. At least one witness testified that Bin started the fisticuffs by attacking S.S. Before the fisticuffs began, gang slogans were shouted by both CWA and the opposing gangs.
While it was undisputed that the firearm was fired first by Buakhai, Bin admitted that he too fired the gun. The jury logically could have inferred that Bin’s purpose in firing the gun was to ensure that the opposing gang knew CWA was armed and would do whatever was necessary to establish its dominance.
Each of these facts formed a substantial foundation for Pouv’s opinion that the crimes committed that night were committed for the benefit of the CWA criminal street gang.
B. Section 186.22, subdivision (a) substantive charge
Bin also contends that the evidence was insufficient to support the jury’s conclusion that he was a member of a criminal street gang, in violation of section 186.22, subdivision (a). This section criminalizes active participation in a criminal street gang when the defendant knows that the gang’s members engage in or have engaged in a pattern of criminal gang activity. The defendant must also “willfully promote[], further[], or assist[] in any felonious criminal conduct by members of that gang.” (Ibid.) “[A] person ‘actively participates in any criminal street gang,’ within the meaning of section 186.22(a), by ‘involvement with a criminal street gang that is more than nominal or passive.’ [Citation.]” (People v. Castenada (2000) 23 Cal.4th 743, 752.) Bin contends that the evidence was insufficient to establish that he actively participated in CWA. Once again, we disagree.
We have recited the relevant facts in the preceding section. Bin admitted that he had been a member of CWA, but claimed that he dropped out of the gang when his daughter was born and he moved out of Modesto. It also is true that there was no testimony of police contact with Bin after 1999 until the incident in question in 2005. On the night in question, however, Bin accompanied admitted CWA members and associates to confront another gang. He was identified as instigating the fisticuffs by striking an opposing gang member. He used the gun he brought to the confrontation to shoot at the house of the opposing gang members. The jury logically could have inferred from these facts that Bin’s participation in CWA was much more than nominal or passive. This evidence was more than sufficient to support the verdict.
II Sixth Amendment Right to Confront Witnesses
As stated in the preceding section, Bin called Hernandez as an expert witness on his behalf. Hernandez testified that CWA was more of a neighborhood social gang than a criminal street gang. Hernandez also opined that the facts of this case did not suggest a gang confrontation, but instead suggested a dispute over a woman.
The prosecutor sought to impeach Hernandez with statements made by Buakhai when she was interrogated shortly after the shooting. Over defense objections, the trial court permitted the following exchange:
“[PROSECUTOR]: Q. Are you aware that Pha Buakhai allegedly said that Rathana Reach told Sithy Bin and the rest of the group that DOTN gang members, whom you had problems with were disrespecting the CWA gang?
“[HERNANDEZ]: Um, I’m aware that that is alleged in the report.
“[PROSECUTOR]: Okay. Isn’t that an indication that’s more than just a one-on-one incident, that that’s dragging in other gang members into this conflict?
“[HERNANDEZ]: If the allegation is true, then that would be consistent with gang behavior.
“[PROSECUTOR]: Now, are you stating absolutely your opinion that this crime was not gang related?
“[HERNANDEZ]: I’m saying it can be or would be consistent with.
“[PROSECUTOR]: So, it can be. It’s consistent with not being gang related, but could be gang related?
“[HERNANDEZ]: What I said was, if the allegations were correct, then that behavior would be consistent with gang behavior.
“[PROSECUTOR]: Okay. I’m just asking for your general opinion. In this case, based on the facts as you know them, can you one hundred percent say that your opinion is that this was not gang related.
“[HERNANDEZ]: No.”
Bin contends that his Sixth Amendment right to confront witnesses was violated by this exchange because Buakhai was not a witness at trial and allegedly was unavailable because she had absconded from probation and her whereabouts were unknown. Bin’s argument rests on Crawford v. Washington (2004) 541 U.S. 36 (Crawford), which held that the Sixth Amendment prohibits evidence of testimonial statements obtained before trial unless the defendant has an opportunity to cross examine the declarant. (Crawford, at pp. 58, 68.)
Bin asserts that if the claim was waived because trial counsel failed to object to the statement on Sixth Amendment grounds, then he received ineffective assistance of counsel. Since we conclude there was no reversible error, we need not address this claim.
If we assume that the above examination violated the Sixth Amendment, reversal is not required if “we [conclude] beyond a reasonable doubt that the jury verdict would have been the same absent any error. [Citations.]” (People v. Harrison (2005) 35 Cal.4th 208, 239.) We conclude that reversal under this standard is not required.
The issue to which the challenged statement applied was whether this dispute was between two criminal street gangs, CWA and DOTN, or whether the confrontation simply was a dispute over a woman. While it was clear (despite Bin’s testimony to the contrary) that the dispute originated with Reach taking S.S.’s girlfriend for a ride in his car, the People contended that the ensuing events resulted in a CWA member believing the gang was disrespected by S.S. According to the People, this disrespect required CWA members to confront the other gang to regain the respect they believed was due. The prosecution’s evidence to support this theory was very strong. We have reviewed this testimony at length in the preceding sections.
Bin, on the other hand, relied on his testimony and that of Hernandez to support his theory that he was acting as a peacemaker in the dispute over the woman and other friends being abused at school. Bin’s testimony was self-serving, and justifiably subject to skepticism. Moreover, his testimony was contradicted by his action in bringing a handgun to the confrontation, his presence with several other CWA gang members, the gang slogans spewing forth from both sides, and that Bin apparently threw the first punch.
Hernandez’s testimony did not assist Bin. His opinion, that CWA was not a criminal street gang but instead a group of individuals of similar ethnicity from the same neighborhood who formed a gang to assist in acclimating to a new culture, simply was not supported by the evidence summarized above. CWA’s inclusion of other ethnicities, and the commission of various crimes including murder, is completely inconsistent with this theory.
The strength of the People’s case, the obtuseness of the exchange at issue, and the instructions that emphasized that the matters relied on by the experts were not independent proof of any fact, convince us beyond a reasonable doubt that the result would have been the same even if the above exchange had been excluded.
Prior to Pouv providing any opinion testimony, defendants requested the trial court inform the jury that hearsay relied on by Pouv in forming his opinions could be considered only for the purpose of evaluating Pouv’s opinions, and not for the truth of the statement. This admonishment was given by the trial court several times during Pouv’s testimony.
III Ineffective Assistance of Counsel
Bin argues that trial counsel was ineffective because there was evidence that would have established that it was Buakhai who shot Leang Khat, the victim, and not Bin. According to Bin, there are three items of evidence that prove Buakhai shot Khat.
First, Bin asserts that Khat’s testimony establishes this fact. In essence, Bin argues that Khat testified she was struck by one of the first two or three bullets fired. Since Buakhai fired the first four to six shots, Bin theorizes Buakhai must have shot Khat.
Khat’s testimony does not support Bin’s argument. On direct examination, Khat testified that she heard gunfire, pretended to bend forward, and was shot simultaneously. She then lay down on the ground. On cross-examination, Khat was asked how she knew the sound she heard was gunfire. She responded, “I heard the sound, ping, ping, then I bend down, forward.” She then explained that the sound was different from the sound of firecrackers.
Bin interprets Khat’s quoted answer as establishing that she heard two shots and then was hit by the third shot. Khat’s answer cannot be so read. She was not asked if she heard only two shots before being struck by a bullet. Instead, she was merely explaining that she heard gunfire, and used the phrase “ping, ping” to describe the gun firing. Bin’s interpretation of the answer is unreasonable.
Second, Bin contends trial counsel should not have objected, and moved to strike, a portion of T.Y.’s testimony. T.Y. testified that Bin started the fisticuffs by hitting S.S. T.Y. and others then went to aid S.S. by fighting others at the scene. T.Y. saw Buakhai fire three shots straight up in the air. He then fell to the ground. Bin then took the gun from Buakhai and fired it towards the house. After T.Y. stated that there were people in front of the house, the following occurred.
“[PROSECUTOR:] Did you see the gun being pointed toward [the people in front of the garage] during the time the Defendant Bin was shooting the gun?
“[T.Y.:] By that time, all the people that was in front of the garage had ducked on the floor, too.”
Trial counsel’s objection to the answer as nonresponsive was sustained and the answer was stricken. Bin argues that while the objection was proper, trial counsel should not have objected because the answer supports Bin’s theory on appeal that it was Buakhai who shot Khat. We fail to see how trial counsel could be criticized for making a proper objection. We also fail to see how trial counsel could be criticized for not anticipating appellate counsel’s new theory on appeal, especially since appellate counsel’s theory is not supported by the evidence. And, the answer that was stricken does not support appellate counsel’s theory. T.Y. did not testify that he saw all of the people in front of the garage when Bin began shooting towards the house. Moreover, T.Y.’s testimony that Bin was aiming in the direction of the house does not preclude a bullet from striking someone that is on the ground. The gun could have deflected downward as a result of the recoil (or Bin’s correction as a result of the recoil) from a shot, thus striking someone in front of the house. An arm held straight out does not conclusively establish the firearm was pointed straight out from the arm.
Third, Bin argues that trial counsel was ineffective for failing to present evidence that Pouv testified at the preliminary hearing that Buakhai told him that she shot the firearm in both a downward and upward direction. Since Buakhai was presumably unavailable at the time of trial, Bin argues the statement was admissible as a statement against Buakhai’s penal interests.
There are numerous problems with this argument. Pouv testified that Buakhai not only stated that she shot the firearm in both an upward and downward direction, but also made numerous statements incriminating Bin, including:
(1) Before going to the scene of the incident, Bin became upset because DOTN members were disrespecting CWA.
(2) Reach asked the group to return with him to the scene of the incident.
(3) Bin brought a gun with him to the scene of the incident.
(4) She took the gun from Bin when they arrived at the scene so he would not do anything “stupid.”
(5) One of the DOTN gang members called Bin a derogatory term (“C-scrap”) before the fight broke out.
(6) Bin was yelling “C-Dubb” before the fighting began.
(7) Bin took the gun from her and shot at the DOTN gang member.
(8) Bin told her he hid the firearm under a pile of grass in the backyard of his parents’ residence.
Bin argues, of course, that only the portion of Buakhai’s statement relating to her firing the firearm in an upward and downward direction should have been admitted. The law is not so helpful, however. “Evidence Code section 356 permits introduction of statements ‘on the “same subject”’ or which are necessary for the understanding of the statements already introduced. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 419-420.) Therefore, once trial counsel introduced Buakhai’s statement that she shot in a downward and upward direction, arguably all of the above extremely incriminating statements also could have been introduced into evidence to explain the events at the scene of the incident. It is much more likely that trial counsel would have been found ineffective had he attempted to introduce Buakhai’s statement instead of ignoring it.
This argument also directly contradicts Bin’s Crawford argument made in the preceding section.
Finally, it is unclear from the information in the record whether Buakhai’s downward shots were aimed directly adjacent to her feet, thus ensuring that they could not have struck Khat.
We could find additional reasons to reject Bin’s argument, but the above are sufficient to establish that trial counsel was not ineffective. To prevail on this argument, Bin is required to establish that trial counsel’s representation at trial fell below an objective standard of reasonableness under prevailing professional norms. (People v. Dennis (1998) 17 Cal.4th 468, 540.) The showing made by Bin does not meet this standard. Accordingly, he has not demonstrated that trial counsel was ineffective.
IV Eighth Amendment Right to be Free from Cruel and Unusual Punishment
Bin argues his sentence of 40 years to life violates the prohibition against cruel and unusual punishment found in both the United States Constitution (8th Amend.) and the California Constitution (art. I, § 17). His argument confuses the relevant principles under each document. As we shall explain, the sentence does not implicate his constitutional rights.
A. United States Constitution
We begin our analysis with three cases that could be considered the precursor to the current state of Eighth Amendment jurisprudence. In Rummel v. Estelle (1980) 445 U.S. 263 (Rummel), the Supreme Court upheld Rummel’s sentence of life with the possibility of parole in 12 years after a third felony conviction. The first conviction was for fraudulent use of a credit card to obtain goods worth $80. The second conviction was for passing a forged check with the value of $28.36. The final conviction was for obtaining $120.75 by false pretenses. The Supreme Court did not foreclose the possibility of proportionality analysis, but did not readily embrace the concept.
In Solem v. Helm (1983) 463 U.S. 277 (Solem), the Supreme Court held that the defendant’s life without the possibility of parole sentence violated the Eighth Amendment’s proportionality requirement. In so concluding, the court suggested that Eighth Amendment analysis “should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” (Solem, at p. 292.) Helm’s sentence was the result of a sixth conviction for a nonviolent minor felony. All of his previous crimes were nonviolent, and none was a crime against a person.
In Harmelin v. Michigan (1991) 501 U.S. 957 (Harmelin), the defendant was sentenced to life without the possibility of parole after being convicted of possessing 672 grams of cocaine. Justice Scalia and Chief Justice Rehnquist argued that the Eighth Amendment did not contain a proportionality guarantee for noncapital offenses. (Harmelin, at p. 965 (lead opn. of Scalia, J.).) Justice Kennedy, joined by Justices O’Connor and Souter, concluded that the Eighth Amendment contained a narrow proportionality principal. (Harmelin, at p. 997 (conc. opn. of Kennedy, J.).) Justice Kennedy discerned several principles to give content to this narrow review. The first principle is that prison sentences involve penological judgments best left to the Legislature. (Id. at p. 998.) Second, the Eighth Amendment does not require every state to adopt the same penological theory. (Harmelin, at p. 999.) Third, it is inevitable that there will be marked divergences in both penological theory and in sentencing between the states, making comparisons between the states problematic. (Ibid.) Fourth, proportionality analysis should be guided by objective factors to the maximum extent possible with the most prominent factor being the type of punishment imposed. (Id. at p. 1000.) These principles led Justice Kennedy to conclude that the “Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime. [Citations.]” (Id. at p. 1001.)
The most recent cases addressing the Eighth Amendment’s cruel and unusual punishment clause has come in the context of California’s three strikes law (§§ 667, subds. (b)-(i), 1170.12), which has been challenged repeatedly on the grounds that a 25-years-to-life sentence imposed for a nonviolent felony is unconstitutional. Recently, the United States Supreme Court issued two opinions addressing the issue, Ewing v. California (2003) 538 U.S. 11 (Ewing)and Lockyer v. Andrade (2003) 538 U.S. 63 (Andrade).
Ewing was the first “three strikes” case to be reviewed by the Supreme Court. Ewing stole three golf clubs with a value of slightly less than $1,200. He had a long criminal record, including three residential burglary convictions, and convictions for first degree robbery, burglary, theft, battery, and grand theft auto. He was sentenced to a third strike term of 25 years to life.
Justice O’Connor authored an opinion joined by Chief Justice Rehnquist and Justice Kennedy. This opinion affirmed Harmelin’s conclusion that the Eighth Amendment contains “a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’” (Ewing, supra, 538 U.S. at p. 20 (lead opn. of O’Connor, J.).) The opinion also concluded that the “proportionality principles in our cases distilled in Justice Kennedy’s concurrence guide our application of the Eighth Amendment in the new context that we are called upon to consider.” (Id. at pp. 23-24.) Justice O’Connor stated that while three strikes legislation might be relatively new (id. at pp. 24-25), it was a rational policy decision made by the state Legislature, and “Nothing in the Eighth Amendment prohibits California from making that choice.” (Id. at p. 25.) In weighing the gravity of the current offense, the prior convictions also must be taken into account because “Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislature’s choice of sanctions.” (Id. at p. 29.)
Justice O’Connor concluded that in this case the Eighth Amendment was not violated because Ewing had suffered at least two violent felony convictions, grand theft was a serious felony (unlike the passive felony in Solem), and the sentence was justified by California’s legitimate penological goal. (Ewing, supra, 538 U.S. at pp. 28-29 (lead opn. of O’Connor, J.).) “Ewing’s is not ‘the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.’ [Citation.]” (Id. at p. 30.)
Justices Scalia and Thomas joined in the judgment but asserted the Eighth Amendment does not contain a proportionality guarantee in noncapital cases. (Ewing, supra, 538 U.S. at pp. 31-32 (conc. opn. of Scalia, J.); id. at p. 32 (conc. opn. of Thomas, J.).)
Justices Stevens, Souter, Ginsburg and Breyer contended that the Eighth Amendment guaranteed proportionality review and was violated in this case. (Ewing, supra, 538 U.S. at pp. 32-35 (dis. opn. of Stevens, J.); id. at pp. 35-53 (dis. opn. of Breyer, J.).)
Andrade garnered the support of a majority of the court, perhaps because it was ultimately decided on procedural grounds. Andrade stole $84 worth of videotapes on one occasion and $68 worth of videotapes on another. He was charged and convicted of two counts of petty theft with a prior. He also had a long criminal history, including multiple convictions for residential burglary, two convictions for transportation of marijuana, petty theft, and escape from a federal prison. He was sentenced to two consecutive terms of 25 years to life.
The sentence was affirmed on direct appeal, and the California Supreme Court denied review. The Ninth Circuit concluded the sentence violated the Eighth Amendment. The United States Supreme Court reversed, concluding that habeas relief was unavailable because the state court’s application of clearly established law was not objectively unreasonable. (Andrade, supra, 538 U.S. at pp. 75-76.)
In reaching its conclusion, the Supreme Court held that gross disproportionality was a clearly established federal law as determined by the Supreme Court, but which was applicable only in “‘exceedingly rare’” and “‘extreme’” cases, although the principle did not have exact contours. (Andrade, supra, 538 U.S. at p. 73.) The Supreme Court also stated that Rummel, Solem and Harmelin all remained good law. (Andrade, at pp. 73-74.) Justices Souter, Stevens, Ginsburg and Breyer dissented, arguing the sentence violated the Eighth Amendment. (Andrade, at pp. 77-83 (dis. opn. of Souter, J.).)
From these cases it appears that the Eighth Amendment prohibits noncapital sentences that are grossly disproportionate to the crimes committed, but that such cases are exceedingly rare. Although the boundaries of this proportionality requirement are unclear, the facts of the above cases demonstrate that Bin’s sentence of 40 years to life is not one of those exceedingly rare cases. Harmelin affirmed a life sentence without the possibility of parole for possession of a large quantity of cocaine. Andrade affirmed a 50-year-to-life sentence for a recidivist felon who stole less than $200 of videotapes. Both sentences are more severe than Bin’s sentence, but neither crime involved the violence associated with Bin’s crime, nor involved the great bodily injury caused by Bin.
It also appears that Solem’s three-part analysis will not garner the support of a majority of the court and thus no longer is applicable.
The case that found a sentence grossly disproportionate to the crime, Solem, involved a sentence of life without the possibility of parole for a nonviolent crime. The defendant thus received a more severe sentence than Bin, but committed a much less severe crime. In other words, Bin’s sentence clearly meets the Eighth Amendment’s proportionality requirement.
B. California Constitution
Bin’s argument, although apparently aimed at the Eighth Amendment to the United States Constitution, is more consistent with the California Constitution’s prohibition of cruel and unusual punishment. Punishment may violate the California Constitution if “it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch).) The Lynch court established three techniques to administer this rule. First, courts should examine the “nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.” (Id. at p. 425.) Second, courts should compare the punishment with the penalty for more serious crimes in the same jurisdiction. (Id. at p. 426.) Third, courts should compare the punishment to the penalty for the same offense in different jurisdictions. (Id. at p. 427.)
Bin focuses his argument on the first factor of the Lynch analysis. He points out his youthful age at the time of the offense (24 years), his minimal criminal history, his claim that he dropped out CWA five years before the shooting, his success in the job market and school (AA degree, well liked and respected by his employers), his responsibility in raising his daughters, his remorse for Khat’s injuries, and his accepting responsibility for taking the gun to the confrontation. The only factor that is subject to dispute is the claim that Bin dropped out of CWA five years before the shooting. The jury found he was a member of CWA when it convicted him of violating section 186.22, subdivision (a). As stated above, this finding is amply supported by the facts of this case. This factor is significant because Bin’s sentence was increased once the jury concluded his act of firing a gun at an inhabited dwelling was committed for the benefit of a criminal street gang pursuant to section 186.22, subdivision (b)(4).
Bin also attempts to minimize the nature of the offense. He admits that shooting at an inhabited dwelling is a serious crime, but he focuses on his remorse, initially giving the firearm to Buakhai, and that it is unlikely that he actually shot Khat. While it is true that Bin now appears to be remorseful, the remainder of his argument fails. He did give the firearm to Buakhai initially, but he took it from her and fired at the dwelling, shooting Khat in the process. He may believe it is unlikely that he shot Khat, but an objective review of the record strongly suggests otherwise.
The nature of this offense is very serious. Shooting a firearm at an inhabited dwelling during a family party is exceedingly dangerous. That only one person was injured is miraculous. It is surprising that no one was killed. Bin’s actions were dangerous and unnecessary. The jury’s finding that the crimes were committed in the context of a dispute between two criminal street gangs, a dispute into which Bin injected himself, increases the seriousness of the crimes and the need for severe punishment. There is no support for Bin’s argument in this factor.
The final factor also does not aid Bin’s case. Bin focuses on the trial court’s recognition that the sentence was severe, and the Legislature provided little discretion to the trial court. The trial court’s observations do not, however, provide any basis for suggesting that Bin’s sentence violates the California Constitution.
The sole case on which Bin relies, People v. Dillon (1983) 34 Cal.3d 441 (Dillon), does not support his contention. Dillon was convicted of first degree murder as a result of the application of the felony murder rule. Dillon and some companions wanted to steal all or a portion of the illegal marijuana crop being grown by the victim and his brother. On their first and second approaches, Dillon and his companions were spotted by one of the brothers, who was armed with a shotgun, and ordered to leave. They also were told that if they reappeared, they would be shot. On the final approach, which occurred some weeks later, the boys again were spotted. The boys heard the victim approach. They saw he was carrying a shotgun as he approached. Dillon repeatedly fired a.22-caliber rifle he was carrying. The boys ran away when the victim fell. The victim was shot nine times, causing his death.
The Supreme Court addressed the penalty imposed on Dillon. It noted that all first degree murders, whether premeditated or through the application of the felony murder rule, resulted in the same sentence: either the death penalty or life in prison with or without the possibility of parole. (Dillon, supra, 34 Cal.3d at p. 477.) It then applied the Lynch factors. The first aspect the Supreme Court focused on was Dillon’s lack of intent. The Supreme Court noted that Dillon testified, and the jury apparently credited the testimony, that he was frightened and fired only because he believed the victim would shoot him if he did not defend himself. Second, the Supreme Court found significant that the jury felt it was compelled to return a first degree murder conviction, even though it was not convinced the penalty was appropriate. Third, the Supreme Court observed that the trial court found the defendant’s culpability to be much less than most defendants convicted of first degree murder.
“Thus defendant stated that when he heard the first shotgun blast accidentally set off by his hapless colleague, he became concerned that one of his friends might have been shot. Next he watched as a man guarding the marijuana plantation walked towards the sound while carrying a shotgun, and five or ten minutes later he heard a second shotgun blast from the same direction. At that point anxiety turned to alarm, and he testified that ‘we just wanted to get the hell out of there, because there were shotgun blasts going off and we thought our friends were being blown away.’
“[T]he foreman of the jury wrote to the judge two days later, confirming the jury’s unwillingness to return the verdict compelled by the felony-murder rule. The letter stated in relevant part: ‘It was extremely difficult for most of the members, including myself, not to allow compassion and sympathy to influence our verdict as Norman Dillon by moral standards is a minor.… [¶]
“The judge then explained to defendant the several reasons why he had decided not to sentence him to state prison. First, ‘I know, on the basis of my observations and very strong supporting evidence, that you are immature; that at the time you committed this offense, you were less than 17 in many respects, emotionally, intellectually, and in a lot of other ways.’ Even at the time of sentencing, ‘you are much less mature than most of the people your age....’ Second, ‘I don’t consider you a dangerous person’ from the standpoint of future risk of harm. Indeed, the judge emphasized that ‘I don’t consider you as dangerous as many of the people—most of the people, all of the people that I have ever come across who have been found guilty of first degree murder.’ Third, ‘most importantly here, you have no record. You can’t find very many first degree murderers who have no record.’ The point, said the judge, ‘is that you have not, in the past, demonstrated conduct that is the kind of conduct that was involved here. And I think that’s important. I think that this offense, despite its seriousness, is, to some degree, out of context with your past.’
The Supreme Court found the punishment imposed to be excessive based on the above factors, as well as the minimal punishment imposed on the other youths who participated in the attempted robbery of the marijuana farming brothers. (Dillon, supra, 34 Cal.3d at pp. 487-489.) After concluding that Dillon’s sentence violated the California Constitution, the Supreme Court held that Dillon should be convicted of, and punished for, second degree murder. (Id. at p. 489.)
The trial court committed Dillon to the California Youth Authority. On appeal, the appellate court determined that such a commitment was not permissible to one found guilty of first degree murder and ordered Dillon sentenced to prison for life. (Dillon, supra, 34 Cal.3d at pp. 486-487.)
Dillon was decided in the context of a unique set of circumstances that are not present in this case. Neither the trial judge nor the jury felt that Bin should be treated leniently. The trial court specifically rejected the claim that there was any basis for imposing a sentence less than that required by statute. Moreover, the evidence does not support the concept that Bin fired numerous times only in self-defense. He fired at the house, not at the individuals he claims were approaching him. Other witnesses testified that when the shooting started, everyone fell to the ground. Thus, the jury justifiably could have inferred that when Bin took the gun from Buakhai, all of Bin’s opponents were on the ground and not a threat to Bin. Nonetheless, Bin shot the gun numerous times at an occupied dwelling without regard to possibility that he could injure innocent victims inside or outside of the house.
Taking all of the Lynch factors into consideration, this is not a case where the sentence imposed shocks our conscience, nor does it offend fundamental notions of human dignity. Bin acted in concert with members of the CWA criminal street gang to resolve a gang conflict. He brought to the conflict a loaded semiautomatic firearm. He used the firearm to shoot at an inhabited dwelling and injured an innocent victim in the process. The Legislature has determined that the combination of the use of a firearm and the gang motivation for doing so require severe punishment to protect other members of society. The result is that Bin, who by all appearances was headed towards becoming a productive member of society, threw away his future for the sake of his criminal street gang. That was Bin’s choice. Now he must pay the consequences of that choice.
DISPOSITION
The judgment is affirmed.
WE CONCUR: GOMES, J., HILL, J.
“One of defendant’s companions then told him he had overheard a guard say, ‘These kids mean business.’ Shortly afterwards the boys heard a man stealthily coming up the trail behind them; they believed at first it was one of their friends, but soon saw it was [the victim], carrying a shotgun at port arms. The boys could neither retreat nor hide, and defendant was sure that Johnson had seen them. According to defendant, as Johnson drew near he shifted the position of his shotgun and ‘he was pointing it outwards and I thought he was getting ready to shoot me.… I just didn’t know what to do.… I just saw him swing the gun behind the trees, and that’s when I started firing.’ Defendant raised his rifle to his waist and ‘pointed it somewhere in his direction.’ He testified that ‘I just pressed the trigger, I was so scared.… I just kept squeezing it, and shots just went off. I don’t know how many.…’ He denied having any ill-will towards [the victim], whom he did not personally know, and reiterated that he began shooting only because ‘I was afraid he was going to shoot me.… He knew where I was at. I couldn’t do anything. I just shot him. I didn’t even think about it. I never thought of shooting anybody.’ Defendant stopped firing when Johnson fell.
“On cross-examination defendant testified that when Johnson pointed the shotgun in his direction, ‘Nobody told me what to do and I had no support, and I just pulled the trigger so many times because I was so scared.…’ When asked why he had fired nine times, defendant replied, ‘I never thought between pulling the trigger the first time or the ninth time. I just kept pulling because he was going to shoot me and I had to do something. I didn’t have it aimed at him. I didn’t know whether it would hit him or not. I just had it pointed. I just pulled the trigger so many times because I was so frightened.’” (Dillon, supra, 34 Cal.3d at pp. 482-483.)
“‘The felony-murder law is extremely harsh but with the evidence and keeping “the law, the law,” we the jury had little choice but to bring in a verdict of guilty of 1st degree murder.
“‘We covered every aspect, including the possibility of abandonment of the attempted robbery, but as [the prosecutor] so aptly put it, “The ship had left the dock and had set sail”; the action had gone beyond the stage of preparation.
“‘We, the jury, would have considered a lesser verdict, but it seemed our hands were tied when all 8 of the elements of “attempted robbery” had been met. The only other two elements to make it felony-murder were homicide and a causal connection. It is obvious from the evidence that this was so.’ (Italics in original.)
“Expressing ‘the general consensus of opinion of most or all the jurors,’ the foreman then implored the judge to give defendant ‘his best opportunity in life’ by committing him to the Youth Authority rather than sentencing him to state prison. Emphasizing that defendant was even more immature than a normal minor of his age, the foreman explained that ‘Mere confinement would not be the answer for him’; rather, there was a need for psychological counseling and training in a skill or trade ‘to assist this young person in trying to cope with his fellow man in an already tough world to live in, even under normal circumstances.’” (Dillon, supra, 34 Cal.3d at pp. 484-485.)
“Adverting to the fact that the gun was fired nine times, the judge acknowledged that prior to this trial ‘I could not imagine how somebody could kill another person, shoot them nine times, without deliberation, premeditation, and … a total absence of any concern for another human being at all.’ After hearing the testimony, however, ‘I am satisfied, on the basis of the evidence here, that the shooting of [the victim] was not planned by you. I accept that. I am not only indicating that I have a reasonable doubt as to whether that happened, but I accept, on the basis of the evidence, that that was not a planned, deliberate killing.’ Rather, although it was ‘an intentional killing,’ it was ‘a killing that, spontaneously, you decided to engage in. I think, whether your story is completely true or not, it is basically true. You were trapped. You were trapped in a situation of your own making.’” (Dillon, supra, 34 Cal.3d at p. 486, fns. omitted.)