Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F01651
SIMS, Acting P. J.While in pursuit of a night of chicken fighting, Wang Lee was shot and killed. Defendant Yee Xiong was convicted of Lee’s murder. He was also found to have personally discharged a firearm to cause Lee’s death and committed the murder for the benefit of a street gang. Defendant appeals his conviction and the findings contending the court prejudicially erred in granting a prosecution challenge for cause to a prospective juror, that there is insufficient evidence he personally discharged the firearm, that Detective Bailey was not properly qualified as a gang expert, and based on his life sentence without possibility of parole, his parole revocation fine must be stricken. On this last point, we agree. In all other respects, we shall affirm the judgment.
FACTUAL BACKGROUND
On February 17, 2006, Wang Lee brought his chicken to a house party in north Sacramento to participate in chicken fights. There were about 20 Hmong men at the party, including a number of Lee’s friends and relatives. Defendant was also at the party, and had arrived there in a white Cadillac.
Defendant and Lee talked for about five minutes. Lee’s brother described the conversation as “angry” and “harsh” and using “strong words.” He felt defendant’s words were a threat and knew something would happen.
In keeping with the theme of the party, the two men initially discussed chickens. Lee had brought his chicken to the party and defendant challenged him, saying his chicken could kick Lee’s chicken’s ass, killing it in “one hit.” Lee rose to the challenge, telling defendant to “bring it on.” Defendant said his chicken had recently fought and needed to rest before fighting again.
The conversation then moved to shootings and the parties’ respective gang involvement. Defendant said he had been shot and “jumped,” and that this was not unusual for him. He asked Lee and his companions if they were gang members from the “south area.” Lee said they were from the south area, but they were not in a gang. Defendant also talked about gang members from the north going to the south “doing shootings” and gang members from the south going to the north “doing shootings.” Defendant claimed he was not a gang member, but that he was willing to kill people to become a “true gangster.” Eventually, the conversation died out.
Because there were no chicken fights to watch at the party, the guests left to go to an alternate chicken fighting location.
Defendant left the party with at least three of his friends. They left the party in the white Cadillac which defendant had driven to the party. Defendant was in the driver’s seat.
Lee also left with his friends, riding in the front passenger seat of Yang Moua’s car. Defendant followed Lee and his friends, running a red light. He drove slowly by Moua’s car, made a U-turn and sped to catch up. As defendant’s car pulled alongside Moua’s car, the driver’s side window of the Cadillac was open and multiple shots were fired into Moua’s car. Lee died of a gunshot wound to the head.
Three bullets were recovered from Moua’s car and one from Lee’s head. Two of the bullets were.45 caliber bullets. There were two bullet holes in the front right passenger area and the front right passenger window was shattered.
The next day, defendant was pulled over in the Cadillac. The car was registered to his sister-in-law, but he made the payments on the car, had open access to it and drove it most often.
Upon being interviewed by the police, defendant denied being at the chicken fighting party or in the Cadillac at all on the night of the murder.
A.45 caliber gun was found at defendant’s family home. Ballistics testing confirmed this was not the murder weapon. However, it appears defendant may have thought it was the murder weapon. In a conversation between defendant and his brother, Lue Xiong, Xiong told defendant police had found the gun at the house. Defendant then mentioned a “.45” and said it was “Talee’s gun.” Defendant said he “should have woken up mom and dad to hide it under the pillows.” Defendant also told his brother not to tell the police he was in the Cadillac that night, because if he was placed in the Cadillac, he “would not get out.”
The jacket defendant had worn to the chicken fighting party was found in the backseat of the Cadillac. There was gunshot residue on the jacket. There was also gunshot residue on the shirt defendant was wearing, on the Cadillac’s steering wheel, both the interior and exterior of the driver’s side door and the ceiling above the driver. Residue samples were not taken from the backseat area or the passenger side of the car.
The gunshot residue expert testified gunshot residue can be deposited on a shirt without the wearer necessarily firing a gun. It can be deposited by brushing or leaning against something with residue on it. He speculated either the front passenger or a backseat passenger could have fired the gun and left residue particles on the driver’s side of the car.
Hmong Nation Society (HNS) gang paraphernalia was found in defendant’s jail cell in March 2007. HNS “claims” north Sacramento. There was a cardboard cutout with the words “Hmong,” “Nation,” “Society,” “Crip,” “Northside,” and Hmong RBG.” Defendant had a tattoo on his back which said “Hmoob Laig” which means, “Hmong gangster or thug.” He had a picture in his cell phone of gang graffiti. Defendant’s brother believed he might be a gang member. Tong Vue, a former HNS member, testified that gang members will ask others where they are from to determine their gang affiliations. Vue also believed defendant was a gang member and had seen him previously at a gang function.
The HNS gang is affiliated with the Crips gang.
RBG stands for Ruthless Boy Gangsters, which is a subset of HNS.
Detective Joseph Bailey was qualified as an Asian gang expert. He testified the mentality among gang members is consistent among different ethnic groups. The perception of respect is important to gang members and an appearance of lack of respect can result in confrontations, including shootings. Gang members will claim some area of “turf,” such as an area where they live or a portion of the city. To go into a rival gang members’ turf is considered disrespectful. The primary activities of the HNS gang are criminal, including drug manufacturing and sales, drive-by shootings and murders. Bailey also testified about other shootings by HNS members which were similar to the shooting in this case. Bailey opined the type of shooting done in this case would benefit the HNS gang in that it would promote the reputation and fear of the HNS gang, and could dissuade people from reporting crimes and testifying in court.
PROCEDURAL HISTORY
Defendant was charged with murder. (Pen. Code, § 187, subd. (a).) It was further alleged that defendant had personally discharged a firearm causing death (§ 12022.53, subd. (d)), that defendant committed the crime for the benefit of a street gang (§ 186.22, subd. (b)(1)), that he murdered the victim by discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)), and that he had served a prior prison term. (§ 667.5, subd. (b).) Defendant was found guilty of murder and all of the allegations were found true. Defendant was sentenced to life in prison without possibility of parole on the murder charge, plus a consecutive 25 years to life for the personal firearm discharge enhancement and a one-year consecutive term for the prior prison term enhancement. Various fines and fees were imposed including a parole revocation fine.
Undesignated statutory references are to the Penal Code.
DISCUSSION
I
Defendant contends the trial court prejudicially erred in granting the prosecution’s challenge for cause to prospective juror No. 23. Defendant claims this erroneous excusal violated his due process rights and right to a representative jury. We disagree.
Factual Background
In the course of voir dire examination, juror No. 23 revealed that approximately five years before he had gone to school with a lot of gang members, both HNS and Masters of Destruction (MODs). He had joined a gang when he was approximately 13 years old and was in the gang for a “[c]ouple years.” He would still see them sometimes. He knew a lot about gangs, more than the average citizen. He felt he could be a fair juror, but really did not want to sit on the jury.
Juror No. 23 recognized putting aside his personal knowledge about gangs would be difficult. Initially he thought he could put the knowledge aside and rely only on the evidence presented at trial. Later he was unsure he could do so. He then stated he did not think he could disregard his knowledge regarding gangs rather than relying exclusively on the evidence presented in court.
He asked to be excused, explaining it would not feel right to him, because he did not want to “have to put nobody away.” He was also uncomfortable sitting on the case because it involved allegations of gang affiliation and he did not “like having to go against anybody like that.”
The prosecution challenged juror No. 23 for cause, based on his knowledge of gangs and his stated inability to set that knowledge aside. Defense counsel objected. The court noted juror No. 23 appeared very nervous and fidgety while he was being examined, and that he had specified he did not want to serve on this jury because of the gang issue.
The court granted the motion for cause. The court noted juror No. 23’s “background, knowledge, preconceptions and [] clear discomfort about serving on this case.” The court found that discomfort was caused by the case being a gang-related case.
Analysis
A prospective juror may be excused for cause for either actual bias, or implied bias. Actual bias is “the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.” (Code Civ. Proc., § 225, subd. (b)(1)(C).) Implied bias exists in a number of circumstances, including “the existence of a state of mind in the juror evincing enmity against, or bias towards, either party.” (Code Civ. Proc., §§ 225, subd. (b)(1)(B); 229, subd. (f).)
“In general, the qualification[s] of jurors challenged for cause are ‘matters within the wide discretion of the trial court, seldom disturbed on appeal.’” (People v. Kaurish (1990) 52 Cal.3d 648, 675.) “[W]here answers given on voir dire are equivocal or conflicting, the trial court’s assessment of the person’s state of mind is generally binding on appeal. [Citation.] The trial court is in the unique position of assessing demeanor, tone, and credibility firsthand--factors of ‘critical importance in assessing the attitude and qualifications of potential jurors.’ [Citation.] Hence, the trial judge may be left with the ‘definite impression’ that the person cannot impartially apply the law even though, as is often true, he has not expressed his views with absolute clarity. [Citation.]” (People v. DePriest (2007) 42 Cal.4th 1, 21.)
Contrary to defendant’s argument, prospective juror No. 23’s statements were conflicting and equivocal. He repeatedly stated his discomfort with serving on this jury because of the gang issues. He vacillated between stating he could be fair to both sides and at other times saying he would not be able to disregard his knowledge about gangs. Specifically remarking on juror No. 23’s body language, the court noted his apparent nervousness and discomfort with the case, and that he tended to answer affirmatively to whichever attorney was questioning him. The court got the “sense” that juror No. 23 was “uncomfortable serving because of the gang allegations and background.” On this record, we cannot say the trial court abused its discretion in granting the prosecution’s challenge for cause.
II
Defendant next contends there is insufficient evidence to support the enhancement that he personally discharged a firearm causing death. We are not persuaded.
We requested supplemental briefing from the parties on whether this court could find substantial evidence under section 12022.53, subdivision (c)(1). We need not resolve this issue, because we find substantial evidence supports the section 12022.53, subdivision (d), enhancement which was pled and proven.
In assessing a claim of insufficient evidence, we view all the evidence in the light most favorable to the judgment and presume in support thereof the existence of every fact the jurors reasonably could deduce from the evidence; “we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.” (People v. Jones (1990) 51 Cal.3d 294, 314.) Under this standard of review, “an appellate court may not substitute its judgment for that of the jury. If the circumstances reasonably justify the jury’s findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding. [Citations.]” (People v. Ceja (1993) 4 Cal.4th 1134, 1139.)
Under section 12022.53, subdivision (d), the prosecution was required to establish that defendant personally discharged the firearm which proximately caused Lee’s death. In other words, the prosecution had to prove that defendant was the shooter. Defendant contests the sufficiency of the evidence that he was the shooter. For reasons that follow, we disagree with defendant.
At the party, defendant and Lee had an exchange of heated, angry words relating to whose chicken could kick the other’s chicken’s ass. When defendant learned Lee had come from the “south area,” he talked about gangs and gang members, particularly about gang members from the south area killing gang members from the north area and gang members from the north killing south area gang members in retaliation. He said he would kill to become a true gangster. Defendant was a member of the HNS gang, a northern Sacramento area gang. As a gang member, respect and turf are important to him. It was a reasonable inference from this evidence that defendant and Lee were engaged in trash talking about whose chicken was the superior beast, and defendant felt disrespected by Lee’s comments. It is also a reasonable inference from the conversation between defendant and Lee that defendant believed Lee and his friends were gang members from the south area who had come to this party in the north area, his turf, a further act of disrespect. It was not unreasonable to infer this intrusion onto his “turf,” combined with the insult to his chicken, would have left defendant feeling disrespected by Lee and wanting to retaliate. Nor was it unreasonable to interpret defendant’s comments about retaliatory shootings and his willingness to kill as a threat to Lee and an expression of intention.
The shots which killed Lee were fired from the Cadillac. Defendant was seen arriving at the party and departing the party in the Cadillac. Defendant’s jacket and driver’s license were found in the car. Defendant called the car his “ride” and was making payments on it. On the night of the murder, defendant was seen getting into the driver’s seat of the car shortly before the shooting. The Cadillac’s driver had been following Moua’s car for quite a while, making illegal driving maneuvers before pulling alongside Moua’s car. The driver’s window was down as it approached Moua’s car. Although there is evidence defendant had passengers in the Cadillac, there is no evidence which suggests anyone other than defendant was driving the Cadillac. Nor were any other windows down.
There was gunshot residue on the driver’s side door, the steering wheel and the ceiling above the driver. A gun fired out the driver’s side window would leave residue on the driver’s side window, ceiling and door. Gunshot residue was also found on defendant’s clothes. Thus, the evidence supported the inference that the shooter was also the driver of the Cadillac. It is untenable that someone in the passenger seat fired a.45 pistol through the driver’s window because the pistol would have been located immediately in front of the driver’s face and the sound of the shot would have been deafening to the driver.
Moreover, defendant knew the murder weapon was a.45 caliber gun. His conversation with his brother reveals he thought police had found the murder weapon in his home, and wished he had hidden the gun better. Defendant’s knowledge of the murder weapon and belief police had found it in his home support the inference he was the shooter.
Defendant lied to police about his whereabouts the night in question. He denied driving the Cadillac or going to the party at all. He told officers he had not been driving the Cadillac on the night of the 17th. He claimed he went to the mall by himself, and returned home around 8:00 or 9:00 p.m. When he got home, the Cadillac was gone. Defendant talked on the telephone and watched television alone. He denied ever being at the chicken fighting party or that he had ever been to a cockfight.
Defendant also instructed his brother to lie to police. He told his brother to confirm his story about being home around 8:00 or 9:00 p.m. and to say he had not driven the Cadillac. He told his brother if the police knew he was driving the Cadillac that night, he “would not get out.” These false statements to police, his efforts to have his brother corroborate his lies, and his certainty that his being placed in the Cadillac that night would result in a conviction, support an inference of consciousness of guilt in the killing of Lee.
From this evidence the jury could reasonably infer defendant, as the driver of the Cadillac, was the shooter. That is, that he personally discharged the firearm which killed Lee. There is substantial evidence supporting the jury’s findings that defendant personally discharged a firearm causing death.
III
Defendant next contends Detective Bailey was not qualified to testify as a gang expert. Accordingly, defendant contends, the trial court abused its discretion in admitting his testimony. There was no abuse of discretion.
“A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code, § 720, subd. (a).) “‘We are required to uphold the trial judge’s ruling on the question of an expert’s qualifications absent an abuse of discretion. [Citation.] Such abuse of discretion will be found only where “‘the evidence shows that a witness clearly lacks qualification as an expert.’” [Citation.]’ [Citation.]” (People v. Wallace (2008) 44 Cal.4th 1032, 1062-1063.)
Detective Bailey had been a Sacramento police officer for five and one-half years. In that time, he had worked as a patrol officer in a heavily gang populated area, the street gang enforcement team in South Sacramento, and finally as a detective in the gang suppression unit of the Sacramento Police Department.
Bailey attended over 156 hours of classes given by various law enforcement agencies relating to gangs from August 2006 to March 2008. Asian gangs were included in these courses. In addition, Bailey attended weekly meetings with other Sacramento Police Department gang detectives, and monthly gang intelligence meetings held by the district attorney’s office. He discussed various aspects of gang culture, mentality, attire, codes of conduct, terminology and tattoos with other gang detectives and experts. These discussions included Asian gangs. Bailey also discussed these topics with gang members, again including Asian gang members. In his years on the force, he had arrested and interviewed gang members, suspects, witnesses and victims and had investigated at least 50 Asian gang cases.
Bailey was specifically assigned to concentrate on Asian gangs. He had personally spoken with at least 100 Asian gang members. He was familiar with the HNS gang from reading old police reports and speaking with Asian gang detectives, family members, victims and gang members, and from working on cases involving members of the HNS gang.
On this record, it was not an abuse of discretion to find Bailey qualified as a gang expert. (See People v. McDaniels (1980) 107 Cal.App.3d 898, 904 [detective with six and one-half years of experience, information on various gangs gathered from police reports, interviews with people in custody and conversations with people on the street, as well as studying the social customs, methods of operation of gangs in south central Los Angeles].)
IV
Defendant’s final contention is that because he was sentenced to life without possibility of parole, and is therefore not eligible for parole, the parole revocation fine must be stricken. The People properly concede this point and we accept their concession. When there is no parole eligibility, a parole revocation fine cannot be imposed. (People v. McWhorter (2009) 47 Cal.4th 318, 380; People v. DeFrance (2008) 167 Cal.App.4th 486, 506; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.)
DISPOSITION
The trial court is ordered to strike the $5,000 parole revocation restitution fine imposed under Penal Code section 1202.45, correct the abstract of judgment and forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: NICHOLSON, J., CANTIL-SAKAUYE, J.