Opinion
2d Crim. No. B227171
12-27-2011
THE PEOPLE, Plaintiff and Respondent, v. THONGINH SASOUVANH, Defendant and Appellant.
Robert Bryzman, under appointment by the Court of Appeal, for Appellant Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters and Robert M. Snider, Deputy Attorneys General, forRespondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.
(Super. Ct. No. BA368828)
(Los Angeles County)
Thonginh Sasouvanh was sentenced to six years state prison after a jury convicted him of burglary (Pen. Code, § 459) and he admitted suffering a prior strike (burglary) within the meaning of the Three Strikes law (§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)). Appellant appeals from the judgment on the ground that the trial court erred in denying his section 995 motion to dismiss a gang enhancement allegation (§186.22, subd. (b)(1)). We affirm.
All statutory references are to the Penal Code.
Facts and Procedural History
Shortly after midnight on November 29, 2009, Joseph Kemple saw appellant and Udom Chanla enter a neighbor's garage with a flashlight and tire iron. Kemple ordered the men to get face down on the ground and called the police. The police responded and placed appellant and Chanla under arrest.
After advisor and waiver of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 ), appellant said that he had known Chanla for 10 years. Appellant was dating and living with Chanla's aunt. Earlier that evening, Chanla visited appellant's workplace, about two to three miles from the victim's garage.
Thomas Yu, a Los Angeles County Sheriff gang detective, testified that Chanla was an active member of the Oriental Boys, a criminal street gang whose primary activities include thefts, auto theft, burglaries, and narcotics trafficking. Chanla went by the moniker "Little Boy," sported gang tattoos, and admitted his gang membership to the investigating officer.
Detective Yu opined that appellant was an associate of the gang, that appellant acted as a lookout for Chanla, and that appellant aided and abetted the burglary for the benefit of the gang.
At the conclusion of the preliminary hearing, appellant moved to dismiss the gang enhancement allegation based on insufficiency of the evidence. After the magistrate denied the motion, appellant was arraigned in superior court and filed a section 995 motion which was denied.
At trial, appellant claimed that he went with Chanla to visit Chanla's girlfriend (Sherry) at the house. No one was home and they waited in the garage. Appellant said that he used a flashlight to look around because he was afraid of snakes. The burglary victim, 98-year-old Mary Miyaji, testified that she did not know appellant or Chanla or anyone named Sher[ry].
The jury found appellant guilty of burglary and returned a not true finding on the gang enhancement.
Section 995 Motion to Dismiss
To prevail on a section 995 motion to dismiss, appellant must demonstrate that he was "committed without reasonable or probable cause." (§ 995, subd. (a)(2)(B).) Reasonable or probable cause is that state of facts that would lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused. (People v. San Nicolas (2004) 34 Cal.4th 614, 654.) The showing required at a preliminary hearing is exceedingly low and may be established by circumstantial evidence. (People v Chapple (2006) 138 Cal.App.4th 540, 545-546; Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 846.)
On appeal from an order denying a section 995 motion, "we 'disregard[] the ruling of the superior court and directly review[] the determination of the magistrate.' [Citations.]" (People v. San Nicholas, supra, 34 Cal.4th at p. 654.) We do not substitute our judgment for that of the magistrate as to the credibility or weight of the evidence. (Ibid.) "[I]f there is some evidence to support the information, the court will not inquire into its sufficiency. [Citations.] Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information. [Citations.]" (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474.)
Gang Enhancement
To establish probable cause for the gang enhancement, the prosecution had to show that appellant committed the burglary for the benefit of or in association with a 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 People v. Albillar (2010) 51 Cal.4th 47, 59.)
Appellant argues that the evidence does not show that the burglary was gang related or committed for the benefit of the Oriental Boys gang. But evidence that appellant committed the burglary in association with a known gang member is enough. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) The gang enhancement statute does not require that appellant be a gang member. (§ 186.22, subd. (b)(1); see People v. Villalobos (2006) 145 Cal.App.4th 310, 322.)
It is uncontroverted that appellant had known Chanla for 10 years, that Chanla was an active member of the gang, and that Chanla visited appellant and asked him to go to the house, the inference being that appellant was recruited to assist in the commission of the crime. Detective Yu, a veteran expert in Asian street gangs, opined that the burglary was a "preplanned, premeditated act by one gang member and one associate."
Appellant argues that Detective Yu's testimony was speculative but the evidence shows that appellant held a flashlight and acted as a lookout as Chanla entered the garage with a tire iron. Detective Yu opined that appellant assisted in the burglary to "gain reputation" with other gang members and that Chanla would not have committed the burglary with appellant absent the gang association. Detective Yu explained that Oriental Boys gang members do not commit crimes with non-associates, especially when the crime is burglary. (See e.g., People v. Tuadles (1992) 7 Cal.App.4th 1777, 1784-1785 [opinion of experienced officer may be considered by magistrate in making probable cause determination].)
Appellant argues there is no evidence that Chanla shouted out his gang affiliation or that the burglary victim (a 98 year old woman) was a rival gang member. But those factors are nonsensical in the context of this case. Gang members committing a stealth burglary in the middle of the night do not, as a matter of custom or practice, shout out their gang affiliation or only victimize rival gangs. Detective Yu stated that the burglary was a signature crime and benefited the gang by boosting its reputation and financially assisting the gang so it could buy contraband and firearms. The burglary encouraged up-and-coming gang members to commit similar crimes.
Appellant contends the evidence does not show that he committed the burglary with the specific intent to aid criminal conduct by a known gang member. (§ 186.22, subd. (b)(1).) But it is uncontroverted that appellant knew Chanla, that Chanla was an active gang member and that appellant held a flashlight as Chanla entered the garage with a tire iron.
The magistrate did not err in finding there was probable cause to hold appellant to answer on the gang enhancement. (See e.g., People v. Albillar, supra, 51 Cal.4th at pp. 60-63.) "Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime. [Citation.]" (People v. Villalobos, supra, 145 Cal.App.4th at p. 322.) An information or an enhancement will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense was committed and the accused is guilty of it. (People v. Slaughter (1984) 35 Cal.3d 629, 637.)
Harmless Error
To prevail on appeal, appellant must not only show that the denial of the section 995 motion was erroneous but that he was prejudiced at trial. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 140.) Appellant and Chanla were properly joined as defendants and tried together. (§ 1098; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40.) Regardless of whether the magistrate erred in not dismissing the gang enhancement, the gang evidence was relevant and admissible to show motive and intent. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049; People v. Williams (1997) 16 Cal.4th 153, 193.) The jury returned a not true finding on the gang enhancement, which leads to the inference that it was not unfairly prejudiced by the gang evidence.
Appellant's assertion that the gang evidence was "devastatingly prejudicial" and denied him a due process right to a fair trial is without merit. The burglary evidence was overwhelming. (See e.g., Neder v. United States (1999) 527 U.S. 1, 17-18 [144 L.Ed.2d 35, 52-53]; People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) Chanla and appellant were caught in the act with a flashlight and tire iron. Appellant had a pair of latex gloves in his pocket.
The jury was instructed that appellant was presumed innocent (CALCRIM 220) and that it could not consider the gang evidence to view appellant as "a person of bad character" or one who "has a disposition to commit crime." (CALCRIM 1403.) The trial court instructed the jury not to let "bias, sympathy, prejudice, or public opinion influence your decision." (CALCRIM 200.) On review, it is presumed that the jury understood and followed the instructions. (People v. Alfaro (2007) 41 Cal.4th 1277, 1326; see e.g., People v. Martinez (2008) 158 Cal.App.4th 1324, 1334 [CALCRIM 1400 dispelled any belief that conviction could be based on gang membership alone].)
The CALJIC 1403 instruction stated: "You may consider evidence of gang activity only for the limited purpose of deciding whether: [¶] The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related enhancement charged. [¶] You may not consider this evidence for any other purpose. You may not conclude from the evidence that the defendant is a person of bad character or that he has a disposition to commit crime."
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The denial of a section 995 motion will be reversed only upon a showing of prejudicial error. (People v. Arjon (2004) 119 Cal.App.4th 185, 192.) The record clearly shows that appellant received a fair trial. Appellant's remaining due process arguments have been considered and merit no further discussion. (People v. Mendoza (2000) 24 Cal.4th 130, 162.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J. We concur:
GILBERT, P.J.
COFFEE, J.
John S. Fisher, Judge
Superior Court County of Los Angeles
Robert Bryzman, under appointment by the Court of Appeal, for Appellant
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters and Robert M. Snider, Deputy Attorneys General, forRespondent.