Opinion
C083224
08-09-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHN YANG, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F04073)
Following a jury trial, defendant John Yang was convicted of second degree murder with an enhancement for personally using a dangerous weapon (Pen. Code, §§ 187, subd. (a), 12022, subd. (b)(1)). He was sentenced to 15 years to life plus one year.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the admission of gang evidence was prejudicial error and a violation of his right to due process. He additionally contends a limited remand is necessary for him to establish a record in preparation for his eventual youthful offender parole hearing and there is an error in the abstract. Finding the gang evidence was properly admitted to establish motive and intent, defendant forfeited his opportunity to establish a record for the parole hearing, and there is an error in the abstract, we shall order a correction to the abstract and affirm.
I. BACKGROUND
A. The Prosecution's Case
1. The Incident
On May 27, 2014, Yong Lor and members of his extended family went to Santa Cruz and spent the day at the beach. On the way to their homes in Olivehurst, they stopped for dinner at a restaurant in Sacramento at around 8:00 p.m. Yong, his wife Ka, their two young children C.L. and A.L., Yong's brothers Sea and Hmongpower, and Hmongpower's child arrived first. Yong's mother, sister, niece, and his brother Mike and Mike's girlfriend got to the restaurant soon after.
When the Lor family took their seats, defendant and his friends were already sitting at their own table. While Sea was waiting to be seated he noticed Moua, who he knew from high school. Moua and another man walked past Sea. Moua recognized Sea as well, and muttered "okay, okay," which Sea construed as showing dislike for him. Sea also recognized defendant, who he knew from high school. After the family had been seated at a table, defendant flipped Sea off; Sea responded by saying, "fuck you." Yong told Sea to "knock it off."
Hmongpower saw defendant and his group staring at them, giving them "dirty looks" and "mean-mugging" them. When Yong suggested that they leave, everyone agreed as they did not want to cause any trouble. Yong told Ka to go ahead and put their children in the car, and he would follow. While leaving, Ka heard someone in defendant's group say in Hmong, "Let's go. Follow them." Sea also heard words directed at him and his group that "probably weren't nice things."
As the Lor family exited the restaurant, people in defendant's group grabbed a broomstick and dustpan. Yong and Ka made it to their car, but at least three people from defendant's group grabbed Yong and pulled him out. Yong told Ka to lock the doors; she did and then backed up the car to see what was happening.
Ka heard a thump on her car, like someone was underneath it. She later determined her car sustained a dent on the passenger side. Ka saw members of defendant's group attacking Yong's brothers with the broom and dustpan from the restaurant. Yong wound up under a street light, separated from Mike and Hmongpower. A member of defendant's group held Yong in a headlock while another held Yong's left arm behind his back. Ka, trying to scare off her husband's assailants, drove her car towards them and honked the horn, which had no effect. Defendant, standing in front of Yong, said to him, "You gonna die tonight," and stabbed Yong in the ribcage area. The people holding Yong let go of him and he fell to the ground. Defendant ran off.
Yong's eight-year-old son C.L. recalled that as he returned from the restaurant's restroom, his uncle Jang told him to hurry to the car. He got in the car behind his mother, who was in the driver's seat. He saw a "big" and "scary" fight; his father was on the ground. He heard a "loud bang" when his mother pulled the car forward.
Mike initially told the police he did not know who was involved in his brother's stabbing. When Ka's older sister told the police that Yong's brothers knew the participants in the attack, Mike identified defendant and two others as the assailants. He previously denied knowledge of who participated in the attack out of fear of gang retaliation at Yong's wake and funeral. Mike and his brothers all attended the same high school in Olivehurst. As they were waiting for a table at the restaurant, Mike saw Moua, who he knew from high school, and who was "mean-mugging" them and trying to start a fight. Moua was associated with the Hmong gang Hmong Nation Society. Hmong Nation Society was a rival of the Hmong gang Menace Boyz Crew. In the Yuba County area, Menace Boyz Crew used the color blue while Hmong Nation Society claimed red.
After they were seated, while Mike and his brothers discussed whether it was safe to stay at the restaurant, he noticed Sea was angry. Deciding to leave, they had the women and children go to the cars first, with the men behind them. As they left, Mike recognized defendant and Dao. Dao and defendant stood up; defendant and his group called them "bitches." Defendants' group followed them as they left. Someone from defendant's group said to them, "[D]o you want to die?"
After Mike and his brothers urged the women and children to get to their cars, defendant and his group charged them. Yong and Mike were together near the cars. They were able to fend off the attacks at first. When he saw Hmongpower fighting in the street with two of the largest members of defendant's group, Mike ran over and pulled someone off Hmongpower. Moua came up and struck Mike on the left side of his face, causing him to whip around from the blow. Mike saw three or four men against Yong, fighting over the broom that was taken from the restaurant. Defendant ran to Yong and stabbed him. Yong pulled out the knife and it fell to the ground. Defendant picked up the knife and threatened Mike with it.
Hmongpower ran over and caught Yong as he fell. With Yong in his arms, Hmongpower cried out, "You killed my brother"; defendant's group then ran away. Hmongpower saw the knife in someone's hand after Yong was stabbed. It was two to three minutes from the time they left the restaurant to Yong's stabbing.
Yong died from a wound to his aortic artery by a four-to-five-inch long knife, which also injured his small bowel. He sustained no other injuries.
2. Gang Evidence
On July 16, 2013, Sacramento Police Officer Jyotis Hasegawa met defendant at his home, where he found a cell phone in his bedroom. The phone contained numerous photographs of defendant making the letter "H" with his hand, a hand sign associated with the Hmong Nation Society gang. Defendant denied affiliation with the gang, explaining that he just liked to form the letter "H" with his hand.
On November 10, 2012, Sacramento Police Officer Jesse Kroupa contacted Strike Force, who he personally knew to be a Hmong Nation Society member. Defendant was the driver of the car Strike Force was in. Hidden in the console was a loaded handgun; defendant said the car was his father's but claimed ownership of the gun, which he had for protection because people perceived him to be a gang member. Defendant denied affiliation with Hmong Nation Society, knowing what Hmong Nation Society was, or knowing that Strike Force was a Hmong Nation Society member.
Officer Kroupa also contacted defendant on June 3, 2014. Defendant possessed a compact disc with the handwritten title, "Ruthless Gang." Officer Kroupa knew that the Ruthless Boy Gang was a North Sacramento gang affiliated with the Hmong Nation Society.
Mike testified that Yong used to be involved with the Menace Boyz Crew when Yong was in high school. At that time, Yong wore gang colors, had a gang hairstyle, and hung out with members of the Menace Boyz Crew. Hmong Nation Society members also attended the same high school. Yong left the gang life after he married and had children. Nonetheless, Yong's younger brothers, Mike, Sea and Hmongpower, were thought to be in Menace Boyz Crew due to Yong's association with the gang.
Sacramento Police Officer Chris Starr testified as an expert on Asian gangs. Hmong Nation Society and Menace Boyz Crew are two Asian gangs in Northern California. Although gangs may claim a particular color, that color can vary from county to county. Hmong Nation Society is composed primarily of Hmong people, and they claim red or blue depending upon their location. Most Hmong Nation Society are located in Yuba County. Their primary rivals in Butte and Yuba counties are Menace of Destruction and Menace Boyz Crew. Menace Boyz Crew is primarily in Yuba and Butte counties, with few members in Sacramento. Menace Boyz Crew tends to claim the color blue. It claims the number 314 while Hmong Nation Society claims 475.
Hmong Nation Society and Menace Boyz Crew were formed in the 1990's, and their disputes have ranged from assaults to shootings to homicides. Respect is attained through fear in gang culture. In Asian gang culture, disrespect through verbal taunts, name calling, or by mean looks must have a response. Failing to respond can cause the gang to be perceived as weak and thereby lose power.
Gangs present a more powerful image by allowing people to associate with them. A person associating with a gang would be privy to its secrets and would be expected to stand up for a gang member. Weapons were important to Asian gangs, tools of power used to create and reinforce a perception of strength. Conflicts between gangs can escalate quickly; a gang without weapons will be perceived as weak.
A photograph of defendant showing a hand signal and wearing a blue bandanna indicated he was displaying the colors of his gang, Hmong Nation Society. In another photo, a hat worn by Moua and his hand sign were also gang-related. A photograph of Moua holding a firearm in each hand was a typical photo establishing the status and firepower of the gang member.
A simple dispute between members of Hmong Nation Society and Menace Boyz Crew could quickly escalate to violence. A look or a word could lead to a dispute resulting in multiple shootings and homicides. The perception that one is a current, former, or even a perceived rival gang member could lead to a confrontation between the Hmong Nation Society and the Menace Boyz Crew. B. The Defense
Defendant testified that he, his brother and his friends decided to go to a restaurant after spending the day fishing. He used a knife while fishing. At the restaurant, Yong and Sea were wearing blue shirts; defendant and his group all wore white T-shirts. Defendant went to the restroom; upon returning, Sea said to him, "how are you doing[,] you little bitch." It did not bother defendant, so he returned to his table. However, after defendant returned to his table, Sea started giving him the "evil eye" and "mugging him." Defendant replied by flipping Sea off, which caused Sea to respond, "fuck you."
When Yong's group got up to leave, Mike made a challenging hand gesture at defendant and his friends. Defendant, speaking in Hmong, told Mike to leave. Mike's mother encouraged them to leave as well. Someone from defendant's group went to the front door to see if Mike and his group had left, but saw Mike's group standing outside the restaurant with weapons. Defendant's brother felt unsafe and wanted to leave.
After waiting a few minutes, defendant and his group went to the door and exited. As they left, Mike and his group attacked them with rocks, a milk crate, a broom, and a dust pan. After attacking defendant's brother with the broom, Yong tried to hit defendant with the broom. Defendant pulled out his knife and swung it in self-defense; Yong ran into it and stabbed himself. Defendant did not realize he stabbed anyone until he saw a clear liquid on his knife after he left the scene.
Defendant denied that he was a gang member. He did tell a detective that the incident was a gang fight.
II. DISCUSSION
A. Admission of Gang Evidence
The prosecution filed an in limine motion seeking admission of gang evidence and gang expert testimony as relevant to motive and intent. Defendant filed an opposition noting no gang crime or enhancement was charged, and argued the evidence should be excluded under Evidence Code section 352 and under his right to due process.
At the hearing on the motion, the prosecutor stated the evidence would show defendant and Yong Lor were associated with rival gangs since high school, and the gang evidence would support a gang-related motive for the stabbing. Defense counsel countered the charged crime was not related to any gang. The trial court found there was evidence of defendant's association with Hmong Nation Society, and while there were some "weaknesses" in the evidence concerning the Lor family's association with Menace Boyz Crew, these weaknesses could be exploited by the defense on cross-examination. The evidence was clearly relevant, but the difficult issue with this type of evidence was Evidence Code section 352. The potential prejudice was minimized here because defendant was not charged with a gang offense and the gang evidence did not "involve stabbings or shootings or anything of that nature." Since the evidence was "more general information of two gangs and supplying a motive for a fight" it was not too prejudicial and therefore was admissible.
Defendant contends it was an abuse of discretion to admit the gang evidence "because there was no solid, credible evidence that the offense was gang-related." Claiming the evidence encouraged speculative inferences and guilt by association, defendant concludes that the prosecution's burden of proof was reduced, depriving him of his right to a fair trial.
As with other types of evidence, evidence of gang membership is admissible if it is relevant to a charged offense or sentence enhancement allegation, and is not more prejudicial than probative or merely cumulative to other evidence. (People v. Albarran (2007) 149 Cal.App.4th 214, 223-224 (Albarran).)
"California courts have long recognized the potential prejudicial effect of gang evidence. As a result, our Supreme Court has condemned the introduction of such evidence 'if only tangentially relevant, given its highly inflammatory impact.' [Citations.] Because gang evidence creates a risk that the jury will infer that the defendant has a criminal disposition and is therefore guilty of the charged offense, 'trial courts should carefully scrutinize such evidence before admitting it.' [Citation.]
"Nonetheless, evidence related to gang membership is not insulated from the general rule that all relevant evidence is admissible if it is relevant to a material issue in the case other than character, is not more prejudicial than probative, and is not cumulative. [Citations.]
"Gang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related. [Citation.] ' "[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence." [Citations.]' " (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167-1168.)
An appellate court reviews a trial court's rulings under Evidence Code section 352 for abuse of discretion, and will reverse only if the court " ' "exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." [Citation.]' [Citation.]" (People v. Merriman (2014) 60 Cal.4th 1, 74.)
The gang evidence supplied motive and context for a seemingly inexplicable event. Two groups of people associated primarily with the City of Olivehurst in Yuba County sit at different tables in a Sacramento restaurant. Shortly after the second group, the Lor family, arrives, it leaves, and a melee resulting in Yong Lor's death takes place just outside the restaurant shortly thereafter. Mike Lor's testimony established that his brother Yong, the victim, was in Menace Boyz Crew in high school, and that association with Menace Boyz Crew carried over to Yong's brothers. While the evidence did not establish defendant's membership in Hmong Nation Society, it did show his association with the gang, by displaying Hmong Nation Society hand signs and standing up for Hmong Nation Society member Strike Force in an encounter between Strike Force and the police. Gang evidence also showed Menace Boyz Crew and Hmong Nation Society were rivals to each other in the Yuba County area where the Lor family lived. The expert testimony on how gang conflicts can escalate explained to the jury why the fight took place and quickly escalated into murder. The gang testimony thus explains how this encounter between two groups of people led to the melee and gives motive and intent for Yong Lor's murder.
The gang evidence was not unduly prejudicial. This is not a case where the prosecution introduced inflammatory gang evidence unrelated to the crime. (See Albarran, supra, 149 Cal.App.4th at pp. 227-228 [gang evidence showing threats against the police, references to the Mexican Mafia, and the descriptions of other crimes committed by other gang members functioned primarily to show the defendant's criminal disposition and were therefore prejudicial].) The evidence showed defendant's and the victim's association with their respective gangs, established the gangs' rivalry with each other, and described how conflicts between the rival gangs can quickly escalate to violence. While the evidence showed defendant admitted owning a firearm, it did not indicate he was prosecuted or convicted of a crime for the act. No other evidence tied defendant to other crimes; the gang evidence did not establish defendant's criminal disposition. In light of the strong relevance and minimal prejudice, it was not an abuse of discretion to admit the gang evidence. Since the evidence was properly admitted, there was no due process violation. (See People v. Johnson (2015) 61 Cal.4th 734, 763 ["when evidence is properly admitted under the Evidence Code, there is no violation of due process"].) B. Remand for Juvenile Parole Hearing
Defendant contends he is entitled to remand to afford him the opportunity to place evidence on the record necessary for his eventual juvenile parole hearing. The People respond that defendant was already afforded this opportunity and failed to take advantage of it. We agree with the People.
In Franklin, the California Supreme Court held that the Eighth Amendment of the United States Constitution prohibition against cruel and unusual punishment prohibits a juvenile court from sentencing a minor "to the functional equivalent of [life without parole] for a homicide offense" (People v. Franklin (2016) 63 Cal.4th 261, 276 (Franklin)) without taking into account " 'how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison' " (id. at p. 275, quoting Miller v. Alabama (2012) 567 U.S. 460, 479 ). The court concluded, however, a juvenile's claim that his sentence of 50 years to life was the functional equivalent of life without parole and thus unconstitutional was moot in light of recent statutory amendments that provided for parole hearings for youthful offenders. (Franklin, at p. 268, citing § 3051.) The court explained, "Consistent with constitutional dictates, those statutes provide [the juvenile] with the possibility of release after 25 years of imprisonment [citation] and require the [parole board] to 'give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity.' [Citation.]" (Franklin, at p. 268.)
Because the enactment of the statutes meant that the juvenile was "now serving a life sentence that includes a meaningful opportunity for release during his 25th year of incarceration," his sentence "is neither [life without parole] nor its functional equivalent" and "no Miller claim arises here." (Franklin, supra, 63 Cal.4th at pp. 279-280.) Although the court in Franklin held that the juvenile offender "need not be resentenced," it remanded "the matter to the trial court for a determination of whether [the juvenile] was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing." (Id. at p. 284.)
The court advised, "If the trial court determines that [the juvenile] did not have sufficient opportunity, then the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence. [The juvenile] may place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender's culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors. The goal of any such proceeding is to provide an opportunity for the parties to make an accurate record of the juvenile offender's characteristics and circumstances at the time of the offense so that the Board, years later, may properly discharge its obligation to 'give great weight to' youth-related factors [citation] in determining whether the offender is 'fit to rejoin society' despite having committed a serious crime 'while he was a child in the eyes of the law.' [Citation.]" (Franklin, supra, 63 Cal.4th at p. 284.)
Defendant was 18 years old at the time of the offense and was sentenced to a term of 15 years to life plus one year. At the time of defendant's sentencing on September 30, 2016, section 3051 had already been enacted and had already been amended to include offenders under 23 years of age. An 18-page probation report was prepared for sentencing. Defendant was given the opportunity to make a statement for the probation report but declined. The report found unusual circumstances that could support probation, defendant's youth and comparative lack of a criminal record. At sentencing, the trial court asked trial counsel and defendant if either wanted to be heard. Both declined. In light of the probation report, the trial court's invitation at sentencing, and section 3051 being amended before sentencing, we conclude defendant "was afforded sufficient opportunity to make a record of information relevant to [defendant's] eventual youth offender parole hearing." (Franklin, supra, 63 Cal.4th at p. 284.) Thus, there was no error. C. Error in the Abstract
The report did not recommend probation.
Defendant also claims counsel was ineffective in failing to make a record for use at the future parole hearing at sentencing. There is no record of what, if any, record defendant could have made, leaving us unable to determine whether he was prejudiced. " ' " 'Generally speaking, habeas corpus proceedings involving a factual situation should be tried in superior court rather than in an appellate court, except where only questions of law are involved.' " ' " (In re Brigham (2016) 3 Cal.App.5th 318, 325, quoting In re Hillery (1962) 202 Cal.App.2d 293, 294.) Defendant's claim involves the type of factual issue that must be resolved on habeas rather than appeal. --------
Defendant contends there is an error in the abstract. We agree.
The abstract contains three lines for life sentences: line 4 for life without the possibility of parole, line 5 for life with the possibility of parole, and then line 6, which has four separate boxes, one for 15 years to life, another for 25 years to life, and two for "___ years to life." The abstract has box 5 (life with the possibility of parole) and the 15 years to life box in section 6 checked. We read section 5 as addressing life terms without a specified minimum period before the defendant is eligible for parole, which is generally seven years. (§ 3046, subd. (a)(1).) Defendant's term, 15 years to life, is addressed in section 6, which is the only section that should have been checked in the abstract. We shall order a correction to reflect this.
III. DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment as stated in this opinion and to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.
/S/_________
RENNER, J. We concur: /S/_________
BUTZ, Acting P. J. /S/_________
HOCH, J.