Opinion
No. D057392.
2012-07-25
The PEOPLE, Plaintiff and Respondent, v. Eric Hung LE et al., Defendants and Appellants.
Sharon M. Jones, Ventura, under appointment by the Court of Appeal, for Defendant and Appellant Down George Yang. Laura P. Gordon, Escondido, under appointment by the Court of Appeal, for Defendant and Appellant Eric Hung Le.
Background: Defendants were convicted in the Superior Court, San Diego County, No. SCD212126, Charles G. Rogers, J., of murder, attempted willful, deliberate and premeditated murder, discharging a firearm from a motor vehicle, and assault with a semi-automatic firearm, and, following true findings that crimes were committed for the benefit of a street gang, that defendants were principals in the offenses and that during their commission, at least one principal used a firearm, and that one defendant personally used a firearm, and were sentenced to terms of 96 years to life and 101 years to life. Defendants appealed. and the People cross-appealed.
Holding: The Court of Appeal, Benke, J., held that assault with a firearm enhancement for personally using a firearm was stayed in light of gang enhancement, as gang enhancement involved defendant's use of a firearm.
Affirmed. Sharon M. Jones, Ventura, under appointment by the Court of Appeal, for Defendant and Appellant Down George Yang. Laura P. Gordon, Escondido, under appointment by the Court of Appeal, for Defendant and Appellant Eric Hung Le.
Kamala D. Harris, Attorney General of California, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
BENKE, J.
A jury convicted appellants Erik Hung Le and Down George Yang of murder (Pen.Code,
§ 187, subd. (a), count 1); attempted willful, deliberate and premeditated murder (§§ 664, 187, subd. (a), count 2); discharging a firearm from a motor vehicle (§ 12034, subd. (d), count 3); and assault with a semi-automatic firearm (§ 245, subd. (b), counts 4 & 5). The jury also found true that all counts were committed for the benefit of a street gang (§ 186.22, subd. (b)); that as to counts 1, 2 and 3, Le and Yang were principals in the offenses and that during their commission, at least one principal used a firearm (§ 12022.53, subds. (d) & (e)); and finally, as to counts 3 and 4, that Yang personally used a firearm (§ 12022. 5, subd. (a)(1)). Le was sentenced to a term of 96 years to life and Yang to a term of 101 years to life.
Unless otherwise noted, all statutory references are to the Penal Code.
Le and Yang raise myriad challenges to their convictions. We consider them seriatim. As we explain, we reject their challenges and affirm their judgments of convictions.
The People cross-appeal, contending the trial court erred in staying the sentence under court 4 for the firearm use enhancementunder section 12022.5, subdivision (a) and imposing under that count the 10–year “violent felony” term for the gang enhancement under section 186.22, subdivision (b)(1)(C). As we explain, we conclude the trial court properly stayed the firearm use enhancement under section 12022.5.
FACTUAL AND PROCEDURAL BACKGROUND
We view the evidence in the light most favorable to the judgment of convictions. (See People v. Osband (1996) 13 Cal.4th 622, 690, 55 Cal.Rptr.2d 26, 919 P.2d 640.) Certain portions of the factual and procedural history related to appellants' claims are discussed post, in connection with those issues.
In 2002 Le and Yang were members of the Tiny Oriental Crips (TOC), a criminal street gang that claimed as its territory Linda Vista and parts of Mira Mesa, communities within the City of San Diego. TOC territory included the Han Kuk Pool Hall (pool hall) located on Convoy Street then owned by Don Su (Don) and his wife Kyung Su (Kyung) (together, the Sus). The Sus had owned the pool hall for about three months at the time of shooting. Rivals of TOC included Asian Crips (AC) and the Tiny Rascal Gang (TRG). The pool hall was managed by the Sus' nephew, Min Su (Min).
On the night of June 14, 2002, TOC member Kane Bo Pathammavong
and his friends Gerry Ian Sulit, Phouthasanoe Volvo Syrattanakoun, Sherri Pak and Rei Morikawa were drinking in a grassy area near the pool hall. During the evening, Le joined the group. At some later point, Le spotted AC members near the pool hall and yelled out a gang challenge.
Pathammavong testified pursuant to an agreement with the district attorney's office in which he pleaded guilty to being an accessory after the fact with a gang allegation, with an agreed-upon sentence of no more than seven years and use immunity, in return for his truthful testimony.
Le left to make a phone call to Yang. When Le returned, he told Pathammavong and Syrattanakoun to leave with their friends. Pathammavong and his group left and went to a tea house located in the same shopping center as the pool hall.
Octavius Soulivong
(Octavius) was at the house of his twin brother Orlando, along with Yang and several other TOC members. Around midnight, Orlando received a telephone call. Orlando claimed the caller was Le. After talking to Le, Orlando handed the phone to Yang, who walked outside to talk. When Yang returned, he told the group that he and Le were going to the pool hall. About 15 minutes later, Le arrived at the house. Le told the group there were some AC members at the pool hall and asked whether anyone had a “strap” (e.g., slang for gun). Le left the house shortly thereafter with Yang and John Vue.
Octavius was arrested and charged as one of the shooters in an unrelated crime that took place on Comstock Street in Linda Vista (Comstock shooting). The evidence ultimately showed Octavius's brother was the shooter in the Comstock shooting. In return for testifying in connection with the Comstock shooting and the shooting in the instant case, Octavius was granted use immunity. He ultimately was placed into the witness protection program after receiving threats.
Pathammavong and his friends were at the tea house when Le returned. Le said he needed to take care of something and told Pathammavong and his group to stay put. Another car pulled up and parked next to Le's car. Le spoke to a passenger in that car, returned to Pathammavong and his group and told them not to follow. Both cars then left the parking lot.
Pathammavong did not take Le's advice. Thinking there might be a fight or shooting because of the “tension,” Pathammavong and Sulit began driving to the pool hall in Pathammavong's car. On the way they heard gunshots and decided to return to the tea house.
At the time of the shooting, Don and his friend Jinwon Lee were outside the pool hall. TRG members Michael Lieng and Nikhom Somsamout arrived in the parking lot near the pool hall. A car with two people inside pulled into the alley near the pool hall. Shots were fired from the car and then the car sped away. One of the bullets struck Don in the neck area. Another struck Lieng in the right elbow and a third bullet struck Somsamout in the right foot. Don died three days later from the gunshot wound.
After the shooting, Le and Yang returned to Orlando's house where, according to Octavius, they spoke about the shooting. Le claimed he was the driver and Yang the shooter. Le also claimed Yang “shot the whole clip” from the rear left seat of the car driven by Le; Yang shot at people in front of the pool hall and kept shooting without aiming. Le referred to AC members as “ass crack,” and bragged that he and Yang shot at them. During Le's recounting of the shooting, Yang interjected and corrected some of Le's statements about the shooting.
TOC members subsequently learned that the shots fired on the night of June 14 had struck and killed Don and not AC members. TOC members, including Yang, agreed not to discuss the shooting any more.
Police investigators recovered a beer bottle in the alley on the south side of the pool hall; a fingerprint matched to Le was found on the neck of the bottle. Police also found several cartridge casings consistent with a 9 millimeter Luger semi-automatic. Because police did not have a murder weapon, a casing was placed into a computer database matching bullets to weapons.
During a search warrant executed at Yang's home, police found under a bed an empty box of 9 millimeter casings along with a gun-cleaning kit. Yang's fingerprints were on the gun box and an instruction manual for the gun.
In early 2005, Deputy Richard Sanchez of the San Diego County Sheriff's Department stopped a car for speeding. The driver was Daniel Manalo, a member of the “B–Down” criminal street gang. During a search of the vehicle, Deputy Sanchez found a 9 millimeter Jennings Bryco semi-automatic handgun with an illegible serial number. Manalo claimed he bought the gun a short time earlier from an individual in Del Mar.
Criminalist Mary Jane Flowers of the San Diego Police Department found the gun had a serial number “1452_66” with the “_” being either a 3 or a 5. Flowers test-fired the gun and placed the results in the computer database. A match came back to the pool hall shooting and four other shootings.
Investigators traced the gun to Yang's older brother, Meng. Meng told police he purchased the gun for Yang from a federally-licensed firearms dealer at a gun show in October 2001. Although Meng filled out the paperwork to acquire the gun, Yang paid for the weapon and accompanied Meng to pick up the gun after the waiting period. Meng told police he gave Yang the gun that day and never saw it again.
Meng identified the box of ammunition recovered during the search warrant as the box that came with the gun. When a detective asked Meng about the gun, Meng said he bought it for Yang and did not know its whereabouts. Meng then blurted out, “Was it used in a murder or something?”
In August 2007 police obtained authorization to wiretap Yang's phone. The record includes myriad incriminating statements involving Yang and the shooting, including as follows:
August 14, 2007 (call between Yang and Meng)
Yang: “[E]ver since last Wednesday, they started asking about that thing. [¶] ... [¶] Yea, they about to back off but they don't have anything, like the same thing. But the gun, said I sold it that guy ‘Slipper.’[
] The gun, they found it at Slipper's.” Meng: “Oh really?” Yang: “Yeah. Say you sold it to the Slipper guy and you don't know his name that's it. If they make it hard for you just say, ‘You talk to my lawyer. He will answer my questions because you don't know what they're talking about. That's it’.” Meng: “All right.” Yang: “But if you are afraid—they make you afraid. Don't be. Don't worry about it. Say you sold it to Slipper, that is all.”
The term “Slipper” is slang for a person of Cambodian descent.
August 14, 2007 (Yang, Meng)
Yang: “Hey, did they say you bought the gun for yourself or you bought it for me?” Meng: “Yea, I said bought it for me in particular.” Yeng: “All right.”
August 14, 2007 (Yang, unidentified male (UM))
Yang: “I told Meng to say he sold it to ‘Slipper’ already. Said that Meng bought it and when he didn't want it, he ... sold it to ‘Slipper.’ ”
August 14, 2007 (Yang, Meng)
Meng: “Where did you put the gun?” Yang: “Sold it already. [¶] ... [¶] Sold it to slipper ... already, I told you. [¶] ... [¶] Fuck! You told them that you gave me the gun. You just got me involved!”
August 15, 2007 (Yang, Meng)
Yang: “[D]id they say, they don't have the gun?” Meng: “They found the box.” Yang: “I think they got the gun. They found a gun but yours they don't get it. The serial numbers on yours, I removed it already. I made sure. Just the box. [¶] ... [¶] [I]f they don't have the gun, there is nothing they can do. [¶] ... [¶] It seems like they don't have good evidence.... Let them take the box. The box and the paper. [¶] ... [¶] They found a gun ... but the one I gave you I removed the serial number already. There is no way they—I removed the serial number before I sold it.”
August 15, 2007 (Yang, UM)
Yang: “My brother fuckin' told them [police] that he gave me the strap. [¶] ... [¶] That was used for the case. [¶] ... [¶] [T]hey gonna come tomorrow morning and take my ass in for that shit. [¶] ... [¶] I want to run [.] [¶] ... [¶] I'm just thinking about running out on this.”
August 16, 2007 (Yang, UM)
Yang: “[T]hey [police] took Meng yesterday. [¶] ... [¶] [T]hey lookin' for the strap.... [¶] ... [¶] Meng said ... he bought me, he got me a strap, he gave me a strap, but they're not sure it's the same one. [¶] ... [¶][H]e just kinda slipped. Not bad, there's still nothing.”
August 16, 2007 (Yang, Octavius)
Yang: “Hey man—remember back when you first came out, you told me that—that you got that Shirocko?” Octavius: “The what?” Yang: “They [police] got the ... heater.” Octavius: “The what?” Yang: “The thing, you know—” Octavius: “What thing?” Yang: “Fabosha—” Octavius: “Oh yeah—yeah. What about it?” Yang: “How do you know they have it?” Octavius: “Because they told me. They told me that they got it from some big—got it from some fool from B–Down.” Yang: “Did they show it to you or what?” Octavius: “No, they just told me. They told me this when I was in jail.” [¶] ... [¶] Yang: “[W]hen they hit [searched] my house, last time, they found the—they found the box. That he [Meng] bought the strap in. Cause he bought it brand new. [¶] ... [¶] So it's under his name but ... I sold that motherfucker a long time ago. You know what I'm saying?” [¶] ... [¶] Octavius: “[T]hey didn't give me the name of the person who they picked it up from and shit, but he was like—‘Yeah, cause—uh—it don't make sense, cause we got the gun from the fool from B–Down and shit.’ You know what I mean? ... I was all, ‘I don't know man, whatever.’ And then you tell me that the cops went up to Meng and shit and asked MENG about the strap and giving it up and shit, but—I don't know. Either that, though, or they fuckin made some fuckin big ass fuckin story about it or some shit.” Yang: “So you knew they were going to go—go talk to Meng already?” [¶] ... [¶] Octavius: “I didn't know. How the hell was I to know? I don't know what strap you guys talking about.” [¶] ... [¶] Yang: “Whoa, whoa, whoa.” Octavius: “What I'm talking about is the one that Bo [Pathammavong] had—that Bo used to kill that one fool?” Yang: “Yeah.” Octavius: “OK? That fuckin—uh—the nine.” Yang: “Yeah.” Octavius: “That's the one that Cuz was talking about. He talking about that nine w-w-was stripped off to fucking—uh—to B–Down. That's the one I'm talking about. I don't know what—what fuckin strap you talking—talking about Meng—”[¶] ... [¶] Yang: “[T]hey [police] didn't say that was the gun used. Cause—if it—I think if it was, they would say, ‘Your gun was used for so and so.’ You know?”
San Diego Police Department Detective Daniel Hatfield testified as the prosecution's gang expert. In 2002 TOC had between 50 and 60 members, including Le and Yang. The primary activities of the TOC gang in 2002 included murder, robbery, assault with a deadly weapon, drive-by shootings at occupied residences, shootings at occupied vehicles, auto thefts and burglaries.
DISCUSSION
I–II
See footnote 1, ante.
III
The People's Cross–Appeal
In their cross-appeal, the People contend the trial court erred in staying the 10–year section 12022.5, subdivision (a)(1) enhancement to count 4. They contend that the trial court had discretion to treat the gang enhancement under section 186.22, subdivision (b)(1) as a “serious offense” within the meaning of section 1192.7, subdivision (c)(31), as opposed to a “violent felony” for purposes of section 667.5, subdivision (c)(8). They further contend that if the trial court had properly exercised that discretion, the two enhancements would not have conflicted and been subject to the California Supreme Court decision of People v. Rodriguez (2009) 47 Cal.4th 501, 98 Cal.Rptr.3d 108, 213 P.3d 647, as found by the trial court.
Briefly, in People v. Rodriguez defendant fired several shots at three rival gang members. The jury convicted defendant of three counts of assault with a firearm and also found true the allegations defendant (i) personally used a firearm (§ 12022.5, subd. (a)) and (ii) committed a violent felony to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)). With respect to each offense, the trial court imposed the firearm and gang enhancement. ( People v. Rodriguez, supra, 47 Cal.4th at pp. 504–505, 98 Cal.Rptr.3d 108, 213 P.3d 647.)
Our Supreme Court reversed and remanded the case for resentencing. ( People v. Rodriguez, supra, 47 Cal.4th at p. 509, 98 Cal.Rptr.3d 108, 213 P.3d 647.) In so doing, it held that imposing both enhancements for defendant's use of a firearm in the commission of a single offense violated section 1170.1, subdivision (f), which provides:
“When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for the infliction of great bodily injury.” (Italics added.)
The People contend that People v. Rodriguez does not govern the instant situation because unlike the situation there, in the instant case the gang enhancement in count 4 was “generically [pled] and proved under section 186.22, [subd.] (b)(1) without a gun use allegation and without such a finding made by the jury.” According to the People, under section 1170.1, subdivision (f) the “greatest” of the two enhancements was for gun use under section 12022.5 because that enhancement netted five more years in prison than the difference between the gang use enhancement for a “serious” (e.g., five-year additional term under section 186.22, subdivision (b)(1)( B )) as opposed to a “violent” felony (e.g., 10–year term additional term under section 186.22, subdivision (b)(1)( C )).
Thus, according to the People, if the trial court had merely imposed the 10–year sentence under section 12022.5 and the five-year sentence under 186.22, subdivision (b)(1), the two enhancements would not have conflicted with the dual use prohibition of section 1170.1, subdivision (f) as discussed in People v. Rodriguez, supra, 47 Cal.4th at page 509, 98 Cal.Rptr.3d 108, 213 P.3d 647. Yang therefore would have been sentenced to 24 years in prison under count 4 as opposed to the 19 years he received.
Although the People attempt to distinguish People v. Rodriguez on the basis that the gang enhancement in the instant case was generically pled and there was no gun use allegation or finding made by the jury in connection with that enhancement, we conclude this is a distinction without a difference. That the trial court may have exercised its discretion and treated the gang enhancement as a mere “serious felony” and not as a “violent felony” for purposes of section 186.22, subdivision (b)(1), as the People contend, does not change the fact that under either scenario the gang enhancement involved Yang's use of a firearm, which we conclude makes People v. Rodriguez applicable.
In their petition for rehearing, the People argue that this court erred in affirming the trial court's decision in count 4 to stay additional punishment for personal gun use under section 12022.5, subdivision (a) (personal gun-use enhancement) and to impose the 10-year enhancement for the commission of a 'violent felony' in this case a violation of section 248, subdivision (b) for assault with a semiautomatic weapon-under the criminal gang provision set forth in section 186.22, subdivision (b)(1)(C) (criminal gang enhancement.) The People argue that 'the prosecutor in this case never asked the trial court to elevate the punishment for the gang enhancement to the “violent felony” level under sbudvision (b)(1)(C) of section 186.22 with the same conduct, personal gun use, that supported the section 12022.5 enhancement. Instead,...the prosecutor here pled and proved a “bare” gang enhancement under section 186.22 wihtout reference to (1) gun use, (2) it being a “serious” or “violent” felony, or (3) either subdivision (b)(1)(B) or (b)(1)(C) [of section 186.22]. By doing so, the prosecutor exposed the dfendant to the maximum possible sentence while not violating the holding of [ People v.] Rodriguez. It was only setting the level of punishment for the gang enhancement for a “violent felony” that the sentencing judge created a conflict with the [ People v.] Rodriguez case. “We reject the People's form-over-substance argument. In focusing on the nature of the offense and the circumstances surrounding its commission ( see People v. Rodriguez, supra, 47 Cal.4th at p. 507), we conclude the trial court did not err in (tacitly) finding, and substantial evidence in the record supports that finding, that the personal gun-use and gang enhancements in this case were both based on firearm use involving the same offense, viz. commission of assault with a semiautomatic weapon (§ 245, subd.(b)). As such, we conclude that instant case falls squarely within the holding of People v. Rodriguez and its prohibition against imposing multiple punishments for firearm use in the commission of a single offense. (See § 1170.1, subd. (f).)”
We therefore conclude the trial court did not err when it found it lacked the discretion under the facts of this case to impose both the personal gun use enhancement under section 12022.5, subdivision (a) and the gang enhancement under section 186.22, subdivision (b)(1)( B ) or(b)(1)( C ).
In support of this argument, the People rely on People v. Robinson filed on October 28, 2011. However, our Supreme Court granted review of People v. Robinson on February 15, 2012, and ordered the matter transferred to the Court of Appeal, First Appellate District, Fifth Division, with directions to vacate its decision and reconsider the cause in light of United States v. Jones (2012) 565 U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911. (See People v. Robinson S198522.)
DISPOSITION
The judgment of convictions of Le and Yang is affirmed.