Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Los Angeles, Tomson T. Ong, Judge, Super. Ct. No. NA067833
Waldemar D. Halka for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Mathews, Paul M. Roadarmel, Jr., Supervising Deputy Attorneys General, David A. Voet, Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
COFFEE, J.
Kevin Bony Mam appeals from the judgment following his conviction by jury of first degree murder. (Pen. Code, §§ 187, 189.) The jury found true allegations that he personally discharged a firearm causing death (§ 12022.53, subds. (b)-(d)), and that the murder was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(A)). The court sentenced appellant to 60 years to life, consisting of 25 years to life for the murder, 25 years for personally discharging a firearm and causing death, and 10 years for the gang enhancement. Appellant claims instructional error, challenges the sufficiency of the evidence to support the gang enhancement, and contends that he was denied effective assistance of counsel. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
BACKGROUND
Long Beach has Black, Asian, and Hispanic gangs. The Asian Boys, with more than 200 members, is the largest Asian gang. The Bitch Killers is a Cambodian gang, consisting of 5 to 10 members, and is either a subset of the Asian Boys or an independent group consisting of former Asian Boys members. The Suicidals is a subset of Asian Boys. In December 2004, appellant admitted that he belonged to the Bitch Killers. The Eastside Longo Hispanic gang claims the area of Long Beach surrounding Gaviota Avenue and 10th Street. Asian gangs have conflicts with the Eastside Longo gang but do not ordinarily conflict with Black gangs.
On the evening of October 24, 2005, appellant was on Gaviota Avenue in Long Beach, visiting his friend, Lucky Lour, an associate of the Asian Boys and Suicidals. While visiting Lour, appellant saw a Black man who had taken his money. After obtaining a nine-millimeter gun from Lour, appellant tried to follow the man who had taken his money but he lost sight of him.
Meanwhile, around 8:00 that evening, Latosha Williams-Staley stood outside her apartment on Gaviota Avenue in Long Beach with three Black men--her neighbor, Alvin Johnson, and two men named Ty and Deon. Johnson, his friend, Jesus Moreno, and Ty were speaking when appellant approached, wearing a black, hooded sweatshirt, with the hood up, and his hands in his pockets. Looking angry, appellant asked, "Have you seen Dominick?" or "Where [is] Dominick at?" Johnson responded, "No." Using a "calm, cool, collected voice," Moreno asked appellant something like, "What [did] you say?" or "What's up?" as if he had not heard appellant. Johnson said that appellant then "took it to the extreme," became aggressive and angry, and responded "What?" or "This [is] what."
Williams-Staley heard Moreno respond, "What's up?" in a manner that she described as confrontational and then saw appellant's facial expression become angry. Thinking "it wasn't gonna be pretty," she went inside her apartment.
Just after saying either "What?" or "This [is] what," appellant laughed, started to walk away, then turned around and fired several shots toward Moreno. Neither appellant nor Moreno wore gang clothing. Johnson and Williams-Staley had not realized that appellant had a gun before he fired it.
Johnson and Ty found Moreno lying face up in the grass next to the apartment building. He was wounded and moved his lips but could not talk. He died as a result of two gunshot wounds that perforated his lung and heart.
When appellant fled, he ran toward 10th Street and tried to hide the gun in a trash can until he thought that someone in a vehicle was watching him. The vehicle belonged to his friend, Colin, who drove him to "Little Man's" house. Little Man is the gang moniker of Chunn Hem, a member of the Suicidals. Appellant hid the gun in the attic of Hem's mother's garage. Another friend drove appellant home in a black SUV, at approximately 10:40 p.m. Hem was in the SUV's back seat.
Officers arrested appellant shortly after he arrived home. They searched his bedroom and found a newspaper article concerning an Asian victim who had been killed by a Hispanic in 2001. They also found a photograph of Asian males wearing gang clothing and throwing gang signs, and photographs labeling a chongo car, a chongo house, and a chongo store. "Chongo" means "monkey" in Spanish. Black and Asian gangs use the word "chongo" as a derogatory term for Hispanic gang members.
Police officers found four nine-millimeter bullet casings at the scene of the shooting. They also found a nine-millimeter handgun, with three live rounds, hidden in the attic of Chunn Hem's mother's residence. The bullets recovered from Moreno's body and the crime scene were fired from the nine-millimeter gun found in Hem's garage.
Long Beach Police Department Gang Enforcement Unit Detective Onorio Galvan testified that, in his opinion, appellant shot Moreno for the benefit of the Bitch Killers, which was developing a reputation in the community for committing crimes. Galvan opined that appellant sought recognition for the gang when he killed Moreno, with the intention of assisting, furthering or promoting further criminal conduct by gang members. People on the street are aware that Moreno was killed by a gang member. The gang benefits from the resulting publicity and violent reputation among other gangs and in the community.
DISCUSSION
Jury Instructions
Appellant first claims that the trial court erred by failing to instruct the jury on voluntary manslaughter based on "sudden quarrel" or "heat of passion." We disagree. The factor that distinguishes the heat of passion form of voluntary manslaughter from murder is provocation. Provocation exists when the victim engages in conduct adequate to arouse homicidal rage or passion in an ordinarily reasonable person. (People v. Manriquez (2005) 37 Cal.4th 547, 583-584; People v. Dixon (1995) 32 Cal.App.4th 1547, 1555-1556.)
Here, the allegedly provocative conduct by Moreno consisted of his asking or stating, "What's up?" to appellant in a "confrontational manner," immediately after he and appellant had asked each other the same question. The gang expert testified that in a gang culture, the phrase "What's up?" is a direct challenge and a frequent prelude to violence. Appellant claimed that Moreno had attempted to get in his face, "talk[ed] crap" to him, asked him, "What [are] you doing over here?" and asked other people, "Who [is] this guy?"
While a gang member might have perceived Moreno's statements as some sort of challenge, the applicable standard is not based on an ordinary gang member. Gang members may be unusually prone to have extremely violent passions, but the requisite provocation must be one that would provoke an ordinary person of average disposition. Ordinary, reasonable people do not become homicidally enraged in response to hearing "What's up?" or the other statements appellant attributed to Moreno. Since there was no substantial evidence of provocation, voluntary manslaughter instructions were not required.
In a related contention, appellant asserts that the trial court erred in failing to instruct the jury that provocation inadequate to reduce a killing from murder to manslaughter nonetheless may suffice to negate premeditation and deliberation, thus reducing the crime to second degree murder. We disagree.
There was not substantial evidence of provocation that would justify a jury finding that appellant formed the intent to kill as a direct response to the provocation rather than with premeditation and deliberation. (See People v. Rogers (2006) 39 Cal.4th 826, 879; People v. Ward (2005) 36 Cal.4th 186, 214-215.) The evidence showed that appellant was angry before he encountered Moreno, and that Moreno asked him, "What's up?" in a non-threatening way. In describing the incident to police, appellant did not claim that he shot Moreno in direct response to Moreno's statements. He claimed that Moreno "got in his face," that he thought that Moreno had a gun, and he was scared. Even if Moreno made statements that could be interpreted as confrontational, they followed in response to appellant's own provocative, angry statements. Moreno's response to appellant's angry statements does not constitute evidence of provocation that would negate premeditation and deliberation. (See People v. Oropeza (2007) 151 Cal.App.4th 73, 83; compare People v. Johnston (2003) 113 Cal.App.4th 1299, 1312-1314, 1310 [evidence supported second degree murder conviction where defendant challenged victim, assuming that victim charged defendant in response to defendant's challenge, and that defendant was getting the worst of the fight before he resorted to deadly force and killed victim].)
Appellant further argues that because there was substantial evidence of provocation, the trial court erred by failing to instruct the jury as he claims would be required by People v. Rios (2000) 23 Cal.4th 450. Having concluded there was no substantial evidence of provocation, we will not discuss this argument.
Appellant also contends that his conviction should be reversed because the jury was instructed that the burden of proof for establishing the corpus delicti was less than proof beyond a reasonable doubt. He asserts that under Apprendi v. New Jersey (2000) 530 U.S. 466, the due process clause of the Fourteenth Amendment requires "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Id. at p. 490; People v. Sengpadychith (2001) 26 Cal.4th 316, 325.) He further argues that because the state must establish the corpus delicti independent of a defendant's extrajudicial statements in order to convict a defendant of a crime, Apprendi; In re Winship (1970) 397 U.S. 358; and "their progeny" (including Cunningham v. California (2007) 549 US __ [166 L.Ed.2d 856]) require that the accused is entitled to have the corpus delicti proven beyond a reasonable doubt. We disagree.
We do not read Apprendi, Winship or their progeny to mandate that the corpus delicti be proved beyond a reasonable doubt. The corpus delicti rule "is neither a rule of constitutional magnitude nor statutorily mandated. It is a common law rule of evidence the purpose of which is to 'ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened.'" (People v. Jablonski (2006) 37 Cal.4th 774, 826-827.)
Moreover, even if we were to accept appellant's claim that the corpus delicti must be proved beyond a reasonable doubt, we would review the claimed instructional error under the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24. (See People v. Sandoval (2007) 41 Cal.4th 825, 837-839 [Cunningham error is reviewed under the Chapman standard].) There is no realistic possibility that a juror would find that the corpus delicti had not been proved beyond a reasonable doubt in this case. Moreno was unarmed when appellant shot him from close range.
Appellant further claims that he was denied effective assistance of counsel. He bases that claim on counsel's failure to request jury instructions described elsewhere in this discussion and on his failure to object to the corpus delicti jury instruction. Having rejected appellant's other claims concerning such instructions, we also reject the ineffective assistance of counsel claim.
Gang Enhancement
Appellant argues that there is not substantial evidence to support the gang enhancement. We disagree. "In determining whether the evidence is sufficient to support a conviction or an enhancement, 'the 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.' [Citations.] Under this standard, 'an appellate court in a criminal case ... does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' [Citation.] Rather, the reviewing court 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] This standard applies to a claim of insufficiency of the evidence to support a gang enhancement." (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
To subject a defendant to the section 186.22, subdivision (b)(1) gang enhancement, the prosecution must prove that the crime for which the defendant was convicted was committed for the benefit of, at the direction of, or in association with any criminal street gang, and with the specific intent to promote, further, or assist in any criminal conduct by gang members. (§ 186.22, subd. (b)(1); People v. Gardeley (1996) 14 Cal.4th 605, 616-617.) Appellant argues that there was no evidence that he murdered Moreno with the specific intent to promote other "criminal conduct" because the prosecution did not connect that murder with a "specific intent to promote future criminal conduct."
Here, gang expert Galvan testified that, by murdering Moreno, appellant demonstrated that Bitch Killer members were dangerous, which not only increased the gang's reputation as a violent, dangerous gang, but also increased its ability to intimidate others. Consequently, the murder facilitated the commission of future crimes by the Bitch Killers. Galvan also opined that appellant committed the murders with the intention of promoting further criminal conduct by gang members. This constitutes substantial evidence that appellant committed the murder with the specific intent to promote criminal conduct by other gang members. (See People v. Morales (2003) 112 Cal.App.4th 1176, 1198; In re Ramon T. (1997) 57 Cal.App.4th 201, 204; People v. Gardeley, supra, 14 Cal.4th 605, 619; People v. Sengpadychith, supra, 26 Cal.4th 316, 324.)
The judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.