Opinion
B321069
07-24-2023
THE PEOPLE, Plaintiff and Respondent, v. SOKHORN HOR, Defendant and Appellant.
Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, and Blake Armstrong, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA110221 James Otto, Judge. Affirmed.
Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, and Blake Armstrong, Deputy Attorney General, for Plaintiff and Respondent.
PERLUSS, P. J.
A jury convicted Sokhorn Hor of the second degree murder of Victor Herrera and found true Hor had used a deadly or dangerous weapon, a vehicle, when committing the offense. On appeal Hor contends the trial court, which had struck criminal street gang enhancement allegations, erred in admitting gang evidence to prove his motive and intent. He also contends fines and fees imposed by the court should be stayed until the prosecution establishes he has the ability to pay them. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
The information charged Hor with the murder of Herrera (Pen. Code, § 187, subd. (a)) and assault with a deadly weapon, a vehicle, of Daniel Escobar (§ 245, subd. (a)(1)). It specially alleged Hor had used a deadly or dangerous weapon when committing the offenses (§ 12022, subd. (b)(1)), and the crimes had been committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C), (5)).
Statutory references are to this code unless otherwise stated.
2. The Pretrial Motions
On January 12, 2021 the prosecutor moved to dismiss the gang and deadly or dangerous weapon enhancement allegations to comply with a special directive of the Los Angeles County District Attorney's Office. Asked by the court if she was aware of any proof problems with the allegations, the prosecutor replied no. The court denied the motion without prejudice and denied a subsequent motion to amend the information pursuant to the directive.
On March 8, 2022 Hor moved to set aside the information, specifically the section 186.22, subdivision (b)(1)(C), gang enhancement allegation. Relying on Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699, § 3) (Assembly Bill 333), which, effective January 1, 2022, amended section 186.22 by prescribing additional requirements to prove a criminal street gang enhancement allegation and the substantive offense of gang participation, Hor argued insufficient evidence had been presented at the preliminary hearing that the predicate offenses were committed by gang members collectively engaged in a pattern of gang activity; the offenses commonly benefited the criminal street gang; the alleged common benefit was more than reputational; and Hor acted with the specific intent to benefit the gang. Accordingly, he contended, the gang enhancement should be dismissed.
At a hearing on Hor's motion the trial court struck all section 186.22 gang enhancement allegations. During the same hearing Hor's counsel moved to exclude all gang-related evidence as unduly prejudicial. The prosecutor responded, "[T]he new law goes strictly to the allegation itself being bifurcated, not the gang evidence." Arguing gang-related evidence should be admitted if otherwise relevant, she asserted the evidence here was relevant to establish Hor's motive and intent. The court observed there were cases decided before Assembly Bill 333 that allowed gang evidence despite the absence of gang enhancement allegations when relevant for other purposes and if not unduly prejudicial. It expressed its belief the new legislation had not changed that principle.
After hearing further argument, the court ruled an expert could testify about criminal street gangs generally-such as the rivalry between two gangs and that specific factors (speech, tattoos, colors and attire) are indicia of being associated with a particular gang-to prove motive and intent for the charged offenses. The court, however, precluded any opinion whether anything had been done for the benefit of a gang or whether Hor, the victim or anyone else was a member of a gang. It also said it would give a limiting instruction.
The instruction given to the jury provided in part, "During the trial, certain evidence relating to criminal street gangs was admitted for [the] limited purpose of whether: [¶] 1. The defendant acted with the intent and[/]or mental state required to prove the offenses alleged in this case; and/or; [¶] 2. The defendant had a motive to commit the offenses alleged in this case. [¶] You may consider that evidence only for those purposes and for no other. [¶] Do not conclude from this evidence that the defendant or the alleged victims had a bad character or [were] disposed to commit a crime."
3. The Evidence at Trial
a. The events of September 8, 2018
On September 8, 2018, at around 11 p.m. in Long Beach, Herrera and his 12-year-old daughter were crossing the street in a crosswalk when a red car came toward them fast and stopped directly in front of them. Herrera told the driver, "You almost hit my daughter. Why didn't you stop at the red light? I'm from the West Side." The driver apologized and pulled his car over to the side. Herrera and the driver argued; and the driver, who remained in the car, challenged Herrera to a fight. At that point Herrera's daughter ran home, crying and scared.
A witness testified he had heard two men arguing. He described one as an agitated Hispanic man with a few tattoos who was at the entrance of a fast food pizza chain restaurant's driveway and the other as a man, also agitated, in a Lexus parked at the corner 10 feet away. The Lexus, which the witness observed was red or maroon, moved to the parking lot of the laundromat across the street, but the Hispanic man stayed in the same place. The argument continued with the men across the street from each other. Another witness said he heard the man in the car, which the witness described as red, yelling, "Fuck Chongos," and later, "Asian Boyz," from the parking lot. That man was wearing glasses and a baseball cap at the time of the incident. The witness identified him in the courtroom as Hor.
In the meanwhile Herrera's nephew Escobar, who had been outside Herrera's home nearby, was told his uncle was in trouble. Escobar ran and saw Herrera standing in a panic in front of the pizza restaurant. Escobar stood next to Herrera on the sidewalk. Facing the laundromat parking lot, Herrera pointed to a car across the street with its headlights on. Escobar saw a red Lexus there. Appearing concerned, Herrera said to get back. When Herrera moved, the red car, with its engine revving and tires screeching, drove full speed toward Herrera and Escobar from the laundromat parking lot. As the car approached Herrera on the curb, he ran toward the center of the street at an angle to the right. Escobar also began to run toward the street to avoid being struck by the car, but he tripped and fell.
The red car hit Herrera and sped off. Herrera went over the car's hood, hit the windshield and then, with his head first, struck the ground, where he lay on his back, motionless. He died at the hospital. A deputy medical examiner determined blunt head trauma as the cause, and homicide as the manner, of Herrera's death.
b. Hor's arrest
Later the same night-and a few miles from where Herrera had been hit-Long Beach Police Officer Steve Baranowski observed a red Lexus accelerate through a red light. Baranowski activated the lights and siren of his police car and pursued the Lexus, which fled at a high rate of speed. Baranowski lost sight of the Lexus at a sharp, blind curve in the roadway covered by a cloud of dust and debris. Baranowski initially thought the car may have been involved in a collision and disabled, but he then saw it further down the street as it continued to drive at a high speed. Large sparks flew from the Lexus's passenger side; part of the vehicle, which was then missing its front passenger wheel, was grinding against the asphalt as it traveled. Baranowski and other officers in their police cars chased the Lexus as it raced nonstop through red lights and stop signs until it collided with parked cars, spun out and came to rest facing the wrong direction.
Officer Baranowski later recovered the Lexus's front passenger tire from the area where he believed a collision had occurred based on the cloud of dust.
Hor got out of the driver's side of the Lexus, which had front-end damage, including major circular damage to the windshield indicating something had hit it. When taken into custody, Hor was wearing glasses, blue jeans, a T-shirt and a blue baseball cap bearing the logo of the New York Yankees. He smelled of alcohol and appeared intoxicated. Hor asked Long Beach Police Officer Benjamin Cobb a question. When Cobb said he did not know the answer, Hor stated, "Fuck you, cuh. Do you know who you're talking to? I'm from Asian Boyz," and, "This is my city. This is my town."
During the field show-ups at which eyewitnesses from the earlier incident near the pizza restaurant were transported to Hor's location, Hor was uncooperative. He refused to walk; screamed; threw his body weight toward the ground; thrashed his torso from left to right; and tried to spit at the officers who were struggling to hold him upright and have him look straight ahead so the witnesses could have a clear view of him. More than one witness identified Hor as the homicide suspect. Officer Cobb then took Hor to the hospital for a medical clearance and to have his blood drawn for a driving under the influence investigation. At the hospital Hor said to Cobb, "Keep looking at me, you little bitch. You know I gangbang," and, "Take your uniform off, and I'll show you how the Asian Boyz get down." After receiving medical clearance, Hor was taken to the Long Beach Police Department for booking, the process of which included the noting of tattoos. Hor had the letters "A" and "B" tattooed on his arms. When Cobb described Hor's tattoo to his partner, who was completing the booking form, Hor turned to Cobb and said, "That's right, Asian Boyz."
c. The testimony of the People's gang expert
Joe Pirooz, called by the prosecutor, testified he was a gang detective with the Long Beach Police Department from 2004 to 2021. Pirooz described his training and experience as a gang detective and stated he had developed an expertise in Asian gangs and testified in court as a gang expert more than 25 times, about 20 of which involved Asian gangs. Through investigations, gang member contacts, conversations with victims and witnesses, and other experiences, Pirooz became familiar with the gang known as Asian Boyz.
Asked what type of gang Asian Boyz was, Pirooz replied it was an Asian criminal street gang. Although Asian Boyz claimed an area it called East Side Long Beach, it was not "a turf gang" but "more of a mobile transitory gang"; its members did not congregate in any "particular geographic subset." Asian Boyz's rivals included the Hispanic gangs the Longos, Barrio Pobre and 18th Street. In Long Beach the Longo gangs were the West Side Longo, East Side Longo and North Side Longo.
Defense counsel did not object to the prosecutor's question and neither requested that the trial court strike, nor otherwise objected to, Pirooz's answer identifying Asian Boyz as an Asian criminal street gang.
Asian Boyz members and associates used either "donkey" or "Chongo" as a derogatory term for a member or associate of a rival Hispanic gang. The term "Chongo" is a play on words intended to show disrespect toward the Longos. In Pirooz's investigations of crimes "involving acts of violence with Asian Boyz and Hispanic gangs," the yelling out of the terms "Fuck Chongos" and "Asian Boyz" during the course of the crime was "a common denominator"; the terms were frequently seen in those investigations. Pirooz also testified that, although anyone could call out the term "Asian Boyz" when on the street, there would be consequences for using the term if the person was not actually associated with that gang: In the Asian gang culture, as in most gang cultures, acts of violence were the usual consequences of falsely representing to be from or associated with a gang.
According to Pirooz, members and associates of Asian Boyz typically wore sports-related merchandise-specifically from the Dallas Cowboys or the New York Yankees-to differentiate themselves from those of other Asian gangs. Cowboys jerseys with numbers 12, 22 and 26, Pirooz explained, signified the gang. With jersey number 12, the "1" stood for the letter "A," and the "2" the letter "B," with "A" and "B" referring to "Asian Boyz." Jersey number 26 was often worn because that number represented the letter "Z," the last letter of the alphabet; the name "Asian Boyz" was spelled with a "Z" at the end. As for New York Yankees clothing, all Long Beach Asian gangs originated from New York Street. Although other Asian gangs also wore Yankee clothing, Asian Boyz wore blue in particular-blue New York Yankees attire or blue Dallas Cowboys jerseys. Shown a photograph of items removed from Hor when arrested, including Hor's hat and his pockets' contents, and asked to identify what, if anything, in the photograph would be significant to an investigation related to Asian Boyz, Pirooz identified Hor's blue New York Yankees baseball cap.
The members and associates of Asian Boyz did not have identical tattoos, but Pirooz nevertheless observed certain features that were common in Asian Boyz tattoos, including the letters "A" and "B"; "A," "B" and "Z"; and/or the numbers 1, 2 and 26. "Asian Boyz will typically sometimes write or tattoo on their bodies 'Rest in Peace,' some of their close homeboys that have passed away." Identifying a photograph he had taken earlier of Hor's left arm with an "A" tattoo and another of Hor's right arm with a "B" tattoo, Pirooz, over defense counsel's objections, testified the tattooed-left-arm photograph was significant in determining whether or not someone was associated with Asian Boyz; provided similar testimony as to the tattooed-right-arm photograph; and reaffirmed the letters "A" and "B" together were commonly observed on those associated with Asian Boyz. Without further objection by defense counsel, Pirooz continued to testify he had observed another tattoo, a skull with a blue bandana, on Hor at the time and had also snapped a photograph of it, which he identified in court. The blue bandana was significant because Asian Boyz was a Crip gang; Crip gangs typically wore or associated themselves with the color blue; and, in Pirooz's experience with Asian Boyz, its members or associates possessed or wore a blue bandana.
An individual having "A" and "B" tattooed on his arms and yelling the terms "Asian Boyz" and "Fuck Chongos" while wearing a New York Yankees baseball cap would be sufficient to determine that he was associated with Asian Boyz, even though each of the factors by itself would not be enough.
On cross-examination Pirooz testified he last had formal training related to Asian gangs more than 10 years ago. All his formal training was conducted by law enforcement agencies, and his knowledge was all from his formal law enforcement training.
4. The Verdict and Sentence
The jury convicted Hor of the second degree murder of Herrera and found true the allegation Hor had used a deadly or dangerous weapon. Hor was acquitted of aggravated assault on Escobar.
The trial court sentenced Hor to an indeterminate state prison term of 15 years to life, plus a consecutive term of one year for the deadly weapon enhancement. He was given credit for 1,375 days in custody. The court imposed a $30 court facilities assessment (Gov. Code, § 70373); a $40 court operations assessment (Pen. Code, § 1465.8, subd. (a)(1)); and a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)). The court imposed but suspended a corresponding $300 parole revocation fine (Pen. Code, § 1202.45). It ordered Hor to pay victim restitution in an amount to be determined at a future hearing (Pen. Code, § 1202.4, subd. (f)). Hor did not object to the imposition of these assessments and fines.
DISCUSSION
1. The Trial Court Did Not Err in Admitting the Gang Evidence
The trial court's rulings on the admissibility of gang evidence and expert testimony are reviewed for abuse of discretion. (E.g., People v. Chhoun (2021) 11 Cal.5th 1, 31; People v. Jones (2013) 57 Cal.4th 899, 946; People v. Carter (2003) 30 Cal.4th 1166, 1194.) Under that deferential standard of review, "'[t]he trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.'" (Packer v. Superior Court (2014) 60 Cal.4th 695, 710; accord, People v. Thai (2023) 90 Cal.App.5th 427, 433; see People v. Armstrong (2019) 6 Cal.5th 735, 756 ["[a] court can abuse its discretion by applying an erroneous legal standard or by making a ruling unsupported by substantial evidence"].)
a. Section 186.22 and Assembly Bill 333
Section 186.22 is among the statutory provisions of the California Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq.) (STEP Act), enacted by the Legislature in 1988 "to eradicate criminal activity by street gangs." (People v. Tran (2022) 13 Cal.5th 1169, 1205-1206, cleaned up (Tran).) Section 186.22, subdivision (b), provides for enhanced punishment when a defendant is convicted of a felony committed "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." Section 186.22, subdivision (a), makes it a criminal offense for a person who actively participates in a criminal street gang to willfully promote, further or assist in felonious conduct by gang members. Section 186.22, subdivision (f), provides the definition of "criminal street gang" for purposes of the STEP Act. (§§ 186.20 ["[t]his chapter shall be known and may be cited as the [STEP Act]"]; 186.22, subd. (f) [defining "criminal street gang" "[a]s used in this chapter"].)
Assembly Bill 333 made a number of significant modifications to section 186.22, increasing the threshold for proving a gang participation offense and gang enhancements. Under the principles enunciated in In re Estrada (1965) 63 Cal.2d 740, Assembly Bill 333's amendments to section 186.22's gang enhancement statute apply retroactively to defendants whose convictions are not yet final. (People v. Cooper (2023) 14 Cal.5th 735, 738-739; Tran, supra, 13 Cal.5th at p. 1207.)
In modifying the law on gang enhancements, Assembly Bill 333 "narrowed the definition of a 'criminal street gang'" set forth in section 186.22, subdivision (f), by requiring "any gang be an 'ongoing, organized association or group of three or more persons.'" (Tran, supra, 13 Cal.5th at p. 1206.) It also replaced former subdivision (f)'s provision that a gang's members, to constitute a "criminal street gang," "'individually or collectively engage in' a pattern of criminal activity" with one requiring "any such pattern [to] have been 'collectively engage[d] in' by members of the gang." (Tran, at p. 1206.) Moreover, Assembly Bill 333 "narrowed the definition of a 'pattern of criminal activity,'" which is set forth at section 186.22, subdivision (e), by imposing several requirements, including that "the offenses commonly benefitted a criminal street gang," as well as, in subdivision (g), "narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any 'common benefit' be 'more than reputational.'" (Tran, at p. 1206.) Finally, Assembly Bill 333 provided for the possibility of bifurcation of a gang enhancement charge: It "added section 1109, which requires, if requested by the defendant, a gang enhancement charge to be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime. If the proceedings are bifurcated, the truth of the gang enhancement may be determined only after a trier of fact finds the defendant guilty of the underlying offense." (Tran, at p. 1206; see § 1109, subd. (a).)
Section 1109, subdivision (b), also provides, "If a defendant is charged with a violation of subdivision (a) of Section 186.22, this count shall be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime. This charge may be tried in the same proceeding with an allegation of an enhancement under subdivision (b) or (d) of Section 186.22."
b. The trial court did not err in admitting gang-related evidence in the absence of proof Asian Boyz is a "criminal street gang" under section 186.22, subdivision (f)
Hor contends the trial court erred in admitting evidence of criminal street gangs generally and Asian Boyz specifically to prove Hor's motive and intent in the absence of proof Asian Boyz was a criminal street gang as now defined in section 186.22, subdivision (f). For example, he argues, Pirooz's testimony failed to show the members of Asian Boyz have collectively engaged in a pattern of criminal gang activity, as that pattern has been redefined by Assembly Bill 333, yet identified Asian Boyz as a "criminal street gang."
Setting aside whether, as the Attorney General argues, Hor failed to object in the trial court on the same ground now urged on appeal, thus forfeiting the issue (see, e.g., People v. Boyette (2002) 29 Cal.4th 381, 424 [finding "issues were not preserved for appeal because defendant did not object at trial on those specific grounds"]), Hor's argument lacks merit.
As Hor concedes, "[t]he People are generally entitled to introduce evidence of a defendant's gang affiliation and activity if it is relevant to the charged offense. [Citation.] 'Evidence of the defendant's gang affiliation-including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like-can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.'" (People v. Chhoun (2021) 11 Cal.5th 1, 31.) Hor provides no authority that under the circumstances of this case- that is, when it is undisputed that no section 186.22, subdivision (a), offense had been charged; gang enhancement allegations under section 186.22, subdivision (b), had been struck; and the People alleged no other violations of the STEP Act-the admission of gang-related evidence, including use of the term "criminal street gang," to prove motive and intent for the charged offenses required a showing any of the subject organizations qualified as a "criminal street gang" under the section 186.22, subdivision (f), definition. To the contrary, the language of the statutory provision on which Hor relies unambiguously provides its definition of "criminal street gang" applies only "[a]s used in this chapter" (§ 186.22, subd. (f)); and, as discussed, "this chapter" is limited to the STEP Act (§ 186.20). (See, e.g., People v. Leal (2004) 33 Cal.4th 999, 1007, cleaned up [to ascertain legislative intent, "[w]e turn first to the words of the statute themselves, recognizing that they generally provide the most reliable indicator of legislative intent"; "[w]hen the language of a statute is clear and unambiguous and thus not reasonably susceptible of more than one meaning, there is no need for construction, and courts should not indulge in it"].) An expert's general, non-STEP Act use of the term "criminal street gang" and his or her opinion testimony concerning gang culture and habits, if otherwise relevant, is admissible even if section 186.22 enhancements were never alleged, dismissed (as here) or bifurcated and stayed pursuant to section 1109. (See People v. Ramos (2022) 77 Cal.App.5th 1116, 1132 ["[N]othing in Assembly Bill 333 limits the introduction of gang evidence in a bifurcated proceeding where the gang evidence is relevant to the underlying charges. And here, some of the gang evidence was relevant to motive in that the defendants yelled derogatory gang terms at the victim to suggest they associated him with a rival gang, thereby injecting gang implications into the crimes. Thus, it is likely some, though not all, of the evidence of Ramos's gang membership and the gang rivalry would have come in at a trial on just the substantive offenses"]; cf. Tran, supra, 13 Cal.5th at p. 1208 [in rejecting defendant's assertion that the failure to bifurcate gang evidence constitutes structural error, the Supreme Court observed it "ha[s] held that gang evidence, even if not admitted to prove a gang enhancement, may still be relevant and admissible to prove other facts related to a crime"].)
Murder is the unlawful killing of a human being "with malice aforethought." (§ 187, subd. (a).) Malice may be either express or implied. Malice "is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature"; it "is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (§ 188.) Hor does not question the relevance of the gang evidence to prove his motive and intent for the charged offenses, which included murder.
2. Hor Has Forfeited His Opportunity To Request an Ability-to-pay Hearing
The fines, fees and assessments imposed by the court in sentencing Hor included a $30 court facilities assessment, a $40 court operations assessment and a $300 restitution fine. Hor contends the case should be remanded to allow him the opportunity to request a hearing and demonstrate he is indigent and unable to pay the fines, fees and assessments imposed by the trial court under the decision in People v. Duenas (2019) 30 Cal.App.5th 1157. In Duenas this court found it violates due process under both the United States and California Constitutions to impose a court operations assessment as required by Penal Code section 1465.8 or the court facilities assessment mandated by Government Code section 70373, neither of which is intended to be punitive in nature, without first determining the convicted defendant's ability to pay. (Duenas, at p. 1168.)
The Supreme Court granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, to determine whether a court must "consider a defendant's ability to pay before imposing or executing fines, fees, and assessments," and, "[i]f so, which party bears the burden of proof regarding defendant's inability to pay."
A restitution fine under section 1202.4, subdivision (b), in contrast, is intended to be, and is recognized as, additional punishment for a crime. Section 1202.4, subdivision (c), provides a defendant's inability to pay may not be considered a compelling and extraordinary reason not to impose the restitution fine; inability to pay may be considered only when increasing the amount of the restitution fine above the minimum required by statute. To avoid the serious constitutional question raised by these provisions, Duenas held, although the trial court is required to impose a restitution fine, the court must stay execution of the fine until it is determined the defendant has the ability to pay it. (Duenas, at p. 1172.)
The Attorney General contends Hor forfeited his right to an ability-to-pay hearing. We agree. Although we have repeatedly observed that Duenas announced a constitutional principle that could not have been reasonably anticipated (see, e.g., People v. Castellano (2019) 33 Cal.App.5th 485, 489), the Duenas opinion was filed January 8, 2019; and Hor was not sentenced until June 13, 2022, more than three years later. Hor's failure to request a hearing or otherwise raise any question concerning his ability to pay assessments, fines or fees in the trial court forfeits the issue on appeal.
DISPOSITION
The judgment is affirmed.
We concur: SEGAL, J. FEUER, J.