Opinion
B211454 No. BA317399 B217265
06-23-2010
THE PEOPLE, Plaintiff and Respondent, v. SANG MIN KIM, Defendant and Appellant.
Robert S. Gerstein for Defendant and Appellant.Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief AssistantAttorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M.Roadarmel, Jr., and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff andRespondent.
Robert S. Gerstein for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
BIGELOW, P. J.
APPEAL from a judgment of the Superior Court of Los Angeles County. Monica Bachner, Judge. Judgment affirmed, petition denied.
Sang Min (David) Kim participated in a barroom brawl that resulted in the murder of Brian Chin by Anfferney Kim. Under an aiding and abetting theory, a jury found him guilty of first degree murder with a true finding that the offense was committed for the benefit of a criminal street gang. (Pen. Code, §§ 187, subd. (a), 186.22, subd. (b).)On appeal, David Kim claims the trial court committed multiple errors, including admitting gang evidence, joining his trial with codefendant Justin Hongs and improperly instructing the jury. In a separate petition for writ of habeas corpus, Kim asserts his trial counsel provided ineffective assistance of counsel. We consider both Kims appeal and his writ petition together. We affirm the judgment and deny the petition for writ of habeas corpus.
All further section references are to the Penal Code.
We considered Justin Hongs appeal in Case No. B213632.
FACTS
During the course of a three week trial, evidence was presented as follows:
I. The Events Leading to the Murder
On July 14, 2006, Brian Chin met with a group of friends, including Jun Min, Hogan Shin, Daniel Lee, Deitehr Schleicher and Michael Kim, to celebrate the birth of his first child at a Koreatown bar called Bohemia. At midnight, the group moved on to a bar called Blink, where a group of 15 to 20 other people were celebrating Hongs birthday, including David Kim, Daniel Kang, Chris Shin, Hanul (Arnold) Kim and Anfferney Kim (aka Ronald Rhee). The birthday party groups raucous celebration bothered Brian Chin and his friends, who frequently glanced at them. At one point, David Kim "mad-dogged" Jun Min and kicked his chair. In response, Jun Min punched
Because many of the individuals involved in this matter share the same first or last names, we will refer to each by their first and last names.
"Mad-dog" is an expression used by gang members to describe certain behaviors, including looking at someone to intimidate them. (People v. Torres (2008) 163 Cal.App.4th 1420, 1423.)
David Kim in the face, causing him to fall to the ground with a bloody nose. No one immediately retaliated though the two groups began cursing at one another. Hanul Kim, believing a fight was imminent, went to his car to retrieve a crowbar.
Brian Chin and his friends began to leave Blink about two minutes after Jun Min punched David Kim. On their way out, Brian Chins group encountered Hanul Kim coming up the escalator. Thinking that he had a gun, Brian Chin grabbed Hanul Kim while his friends attempted to take away what they thought was a gun. They released Hanul Kim when they realized he only had a crowbar. Anfferney Kim, a former Marine and member of the KTG, helped Hanul Kim off the ground.
As the birthday party group continued to curse at them, Hogan Shin, a member of Brian Chins group, grabbed Chris Shin and pushed him towards the window of Blink. Hogan Shin then took off his shirt and challenged anyone in the crowd to a fight. When no one accepted the challenge, he and the rest of Brian Chins group walked away, but the two groups continued to curse and spit at each other. According to members of Brian Chins group, someone asked them, "Where are you from?" as they went down the escalator. Hogan Shin responded," Im from Hell, and Ill take [you] there."
When a security guard from Blink attempted to stop the birthday party group from following Brian Chin and his friends, David Kim "took a swing at" the guard. As Brian Chins group walked down the street to their cars in the Chapman Plaza parking lot, they noticed that a number of people were following them. The second group caught up with them as they entered the parking lot. Two members of Brian Chins group ran to get help from the security guards.
At Chapman Plaza, Hogan Shin again challenged anyone to a fight but two people sprayed him and Michael Kim with mace or pepper spray while another person threatened Jun Min with a three to four inch pocket knife. Jun Min saw a group of people surrounding Brian Chin and heard people yelling, "Get him. Shank him." Hanul Kim saw Brian Chin on the ground bleeding and he kicked him. Hanul Kim later told police that Hong, David Kim and Anfferney Kim were "pounding on" Brian Chin, but he recanted this statement at trial.
Hanul Kim was granted immunity for his testimony.
Chris Shin testified that he saw Anfferney Kim stab Brian Chin. In an interview with police, Chris Shin also said he thought he saw Hong and David Kim attacking Brian Chin while he was on the ground bleeding. At trial, however, he testified that he was intimidated by the police and when the police suggested that Hong and David Kim participated in the attack, he agreed in order to help himself.
Jun Min testified that everyone suddenly ran from the parking lot and he saw Brian Chin lying face down on the ground with blood all over his white shirt. Brian Chin ultimately died of multiple stab wounds. It was later determined that he was stabbed 12 times with a knife that was at least five inches long. A shoe containing the DNA of David Kim was found in the bushes on the side of the Chapman Plaza parking lot.
The day after the murder, Anfferney Kim confessed to Kevin Kim that he stabbed Brian Chin numerous times. He appeared stressed and on the verge of tears. Anfferney Kim said that he had made a big mistake and was leaving that same day for South Korea. Customs records indicate that Anfferney Kim left for Seoul on a one-way ticket that day.
At around 4:00 a.m. in the morning after the murder, a police detective was conducting an investigation at the Chapman Plaza parking lot when Hong drove by with a female companion. When questioned by the detective, Hong said that he wanted to get something to eat even though there were no nearby restaurants open at that time. Hong initially denied being at Blink but later admitted that he was there. In a later interview on February 14, 2007, he admitted he was at the parking lot with the others but denied participating in the attack on Brian Chin. During the course of the investigation, Hong told the detective that Anfferney Kim killed Brian Chin. The police conducted a search of Hongs room and discovered photographs of Hong with David Kim and Anfferney Kim. Hong did not testify at trial.
On July 27, 2006, David Kim, who was previously in the Army Reserves, asked to be enlisted into active duty and was placed into active duty on August 17, 2006. At trial, David Kim testified that he was at Blink on the night in question when he got into an argument with Daniel Kang. Afterwards, he walked over to apologize to Daniel Kang when "some[one] just got up from the table and punched me in the face." He did not retaliate even though he had blood on his face. He later saw two groups of people heading towards Chapman Plaza and decided to follow them, expecting to see a fight. In reviewing the videotape from the security camera at Chapman Plaza, David Kim further testified that he saw people surrounding one person and when he realized there was blood, he "backed off." He lost his shoe when he ran from the parking lot. He denied participating in the attack on Brian Chin and testified he did not see Hong participate either.
II. Gang Evidence
Detective Ken Yueng, assigned to the Asian gang unit for the Los Angeles Police Department, testified for the prosecution as a gang expert. Yueng testified that he received training on gangs at the police academy, had experience investigating over 100 Asian gangs and served as an instructor at law enforcement seminars on gang culture. Yueng observed that Asian gang members were usually affluent and well educated, attending colleges such as UCLA, UC Riverside and USC and entering the military. They usually did not claim territory, like Latino or African-American gangs. Instead, members often joined a gang for "the thrill of it," for respect and for dating purposes because women liked the "bad boy image."
Detective Yueng further testified that the KTG was formed in early 2000 or 2002 with 15 to 20 members that mainly gathered in bars and clubs in Koreatown. Detective Yueng also believed Hanul Kim and Chris Shin were associated with KTG.
Although Detective Yueng was not aware Hong or David Kim were KTG members, he believed they associated with the gang because there were photographs of Hong and others making KTG gang signs. Hong also had cigarette burns on his body that signified gang affiliation. Yueng further testified to an incident involving Hong and a KTG member. On April 16, 2006, Hong was with a KTG member when the KTG member got into a fight with Peter Roh at a nightclub in Koreatown. When it appeared that Roh was winning, Hong joined in and stabbed Roh in the arm with a pocketknife.
Hong was charged as a minor and it was found true that he had committed an assault with a deadly weapon. Detective Yueng further testified to additional assaults and robberies committed by other KTG members.
Detective Yueng opined Brian Chins murder was committed for the benefit of KTG in order to save face after David Kim, a KTG associate, initially lost in his confrontation with Jun Min.
The defense presented expert testimony from Craig Babcock, a defense investigator with certifications and experience with Asian gangs. He testified that David Kim provided information in a previous case against the Mental Boyz, another Korean gang, to the prosecutions gang expert, who disclosed his name in open court. As a result, David Kim was beaten by members of the gang and he stopped participating in the gang. Babcock further testified that Hong had associated with or had been a member of the KTG at some point. Babcock opined that Brian Chins murder was "clearly some kind of drunken brawl" and not gang related.
III. The Verdict and Sentence
The jury found Kim guilty as described above. Probation was denied, and the trial court sentenced him to a term of 25 years to life in prison for the first degree murder conviction. The court further imposed and stayed the term on the gang enhancement. Kim was ordered to pay $73,754.89 to the State Victim Compensation Board and victim restitution of $6,583.43 along with a restitution fine of $5,000. (§ § 1202.4, subds. (b), (f).) The court also imposed but stayed a parole revocation fine of $5,000. (§ 1202.45.) Kim timely appealed.
DISCUSSION
I. Gang Enhancement Allegations
In a motion under section 995, Kim moved to dismiss the gang enhancement allegations on the ground that the evidence presented failed to establish that he participated in a criminal street gang for the purpose of committing a crime since it was established that he had been a member of the Mental Boyz gang and not KTG. Kims motion was denied and the jury found the gang enhancement allegations to be true. Kim now contends that the gang evidence should have been excluded altogether because its probative value was outweighed by its prejudicial effect or, at the very least, bifurcated from the trial of the underlying charges. According to Kim, the prosecutions gang evidence turned this case from an ordinary barroom brawl between two groups of drunken young men into a violent gang incident that resulted in his conviction for murder. We disagree.
A. Exclusion
We first turn to Kims contention that the gang evidence was more prejudicial than probative and should have been excluded altogether even though he was charged with a gang enhancement and his motion to dismiss the enhancement was denied. We find no basis to conclude that gang evidence should be excluded in such a situation. As the California Supreme Court counseled, "In cases not involving the gang enhancement, we have held that evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal." (People v. Hernandez (2004) 33 Cal.4th 1040, 1049 [italics in original].) Kim fails, however, to cite to any case involving a gang enhancement allegation in which all gang evidence was excluded.
Kim instead relies on People v. Albarran (2007) 149 Cal.App.4th 214, 230-232 (Albarran), which does not stand for the proposition that gang evidence can be excluded even where a gang enhancement has been alleged. Instead, Albarran found that the gang evidence had no purpose at trial because it was not relevant to the underlying charge. (Id. at p. 230.) In Albarran, Division Seven of this court reversed a judgment in which the defendant was convicted of attempted murder, shooting at an inhabited dwelling, and attempted kidnapping on the grounds that the gang evidence was so prejudicial that it rendered the trial fundamentally unfair. (Id. at pp. 230-232.) There, the defendant and his associate shot several rounds into a house and then tried to flee the scene by commandeering a car being driven by a witness. At trial, the gang expert testified that the defendant was a member of the 13 Kings street gang and testified at length about the wide variety of crimes they committed and the threats made to police officers by 13
Kings. The jury also heard references to the Mexican Mafia during the prosecutors opening argument and in the experts testimony. (Id. at pp. 227-228.)
The expert opined that the shooting was gang related and intended to benefit the 13 Kings because: "(1) the shooting occurred in Palmdale; (2) it occurred at a party and gang members often commit crimes during parties; and (3) more than one shooter was involved." (Albarran, supra, at p. 221.) However, he admitted that there was no evidence that any of the shooters made his gang affiliation known before, during or after the shooting. (Id. at p. 227.) The defense moved for a new trial on all charges, contending the gang evidence was irrelevant and highly prejudicial. (Id. at p. 217.) The trial court granted the motion for new trial only as to the gang enhancement allegations, but denied it as to the underlying charges, finding the gang evidence was relevant to issues of intent. (Ibid.)
On appeal, the court found that "[c]ertain gang evidence, namely the facts concerning the threat to police officers, the Mexican Mafia evidence and evidence identifying other gang members and their unrelated crimes, had no legitimate purpose in this trial. The trial courts ruling on the new trial motion in which it broadly concluded the gang evidence was admissible to prove motive and intent for the underlying charges was arbitrary and fundamentally unfair.... From this evidence there was a real danger that the jury would improperly infer that whether or not [the defendant] was involved in these shootings, he had committed other crimes, would commit crimes in the future, and posed a danger to the police and society in general and thus he should be punished." (Albarran, supra, at p. 230.)
Albarran is plainly distinguishable given that there was no gang enhancement in the case. We need not say anything more. But we also note that, unlike in Albarran, the testimony about the crimes committed by the KTG (assault, attempted murder, burglary, possession of weapons and driving stolen vehicles) was not nearly as inflammatory as the crime with which Kim was charged (murder). Further, there is no indication from the record that the gang evidence was so inflammatory that the jury would conclude Kim should be punished whether or not he was involved in the murder of Brian Chin.
People v. Memory (2010) 182 Cal.App.4th 835, cited by Kim in a letter brief, is distinguishable for the same reason.
We also reject Kims argument that by "allow[ing] objections to inflammatory gang evidence to be mooted by the presence of a gang enhancement, however, would be to allow the prosecution to nullify the law supporting such objections simply by alleging a gang enhancement in every case." Kim fails to acknowledge that a gang enhancement may not be alleged in "every case." Instead, the allegation must have a sound basis or be subject to a motion to dismiss.
B. Bifurcation
We next turn to Kims bifurcation argument. Both Hong and Kim moved to bifurcate the trial on the gang allegations. The trial court denied the motion, believing the gang evidence was "part and parcel of the incident itself." (People v. Martin (1994) 23 Cal.App.4th 76, 81.) The Supreme Courts opinion in People v. Hernandez, supra, 33 Cal.4th at pages 1050-1051 is instructive on this point. In People v. Hernandez, our Supreme Court directed that evidence of gang membership should be bifurcated when the predicate offenses offered to establish a pattern of criminal gang activity is not related to the underlying crime or even to the defendant and may be so extraordinarily prejudicial and of so little relevance to guilt that "it threatens to sway the jury to convict regardless of the defendants actual guilt." (Id. at p. 1049.) However, the court cautioned "To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary." (Id. at pp. 1049-1050.) It is within the trial courts discretion to bifurcate trial of the gang enhancement. (Id. at p. 1048.)
We find no abuse of discretion in the trial courts ruling. Not only was evidence of Kims gang affiliation relevant to prove the gang enhancement allegations, it was relevant to prove motive and state of mind. It explained how a confrontation between two individuals could escalate into a group attack and ultimately, murder. It also helped to explain why Kim would participate in a group attack on Brian Chin rather than Jun Min, the person with whom he had the initial altercation. The gang evidence was further relevant to support the prosecutions argument that Brian Chins murder was a natural and probable consequence of Kims actions. It explained why Anfferney Kim, who was not personally involved in the initial altercation, would stab Brian Chin and why others participated in the assault on Brian Chin. In any event, as we discussed above, we do not find that the gang evidence was so extraordinarily prejudicial or of so little relevance to guilt that it threatened to sway the jury to convict regardless of Kims actual guilt.
C. Gang Expert Testimony
Kim further contends that the prosecutions gang expert, Detective Yueng, improperly testified to his and codefendant Justin Hongs subjective motive and intent, an ultimate fact to be decided by the jury. Specifically, Kim takes issue with Yuengs testimony that the assault on Brian Shin and Justin Hongs assault on Peter Roh was for the benefit and honor of KTG.
In support of his argument, Kim relies on People v. Killebrew (2002) 103 Cal.App.4th 644, 652, footnote 7 (Killebrew), where a gang expert opined that every gang member travelling in a convoy of three cars would know there was a gun in two of the cars and would mutually possess those guns. The Killebrew court found that the experts testimony "was the only evidence offered by the People to establish the elements of the crime [of conspiring to possess a handgun.] As such, it is the type of opinion that did nothing more than inform the jury how [the expert] believed the case should be decided. It was an improper opinion on the ultimate issue and should have been excluded." (Id. at p. 658.) The Killebrew court noted that "[a] bright line cannot be drawn to determine when opinions that encompass the ultimate fact in the case are or are not admissible. The issue has long been a subject of debate.... We think the true rule is that admissibility depends on the nature of the issue and circumstances of the case, there being a large element of judicial discretion involved.... " (Id. at pp. 651-652.)
Kim also relies on People v. Ramon (2009) 175 Cal.App.4th 843, 849 (Ramon) to support his argument. There, the two defendants were found with an unregistered handgun in a stolen vehicle. In addition to the underlying charges, the information alleged the defendants committed the underlying crimes for the benefit of a criminal street gang. The only evidence presented at trial relating to the gang enhancement allegations was the prosecutions expert testimony. (Id. at p. 850.) His "opinion was based on his belief that because the gun and the stolen vehicle could be used to facilitate the commission of a crime, and the Colonia Bakers [street gang] commit crimes, the two must have been acting on behalf of the Colonia Bakers." (Id. at p. 849.) Relying on Killebrew, the Ramon court determined that the experts testimony failed to constitute substantial evidence to support a true finding on the gang enhancement allegations. (Ramon, supra, at pp. 852-853.)
Here, the state of affairs is quite different. The portion of Yuengs testimony being challenged was given in response to a series of hypothetical questions posed on cross-examination by co-defendant Hongs counsel. "Generally, an expert may render opinion testimony on the basis of facts given in a hypothetical question that asks the expert to assume their truth. [Citation.] Such a hypothetical question must be rooted in facts shown by the evidence, however. [Citations.]" (People v. Gardeley (1996) 14 Cal.4th 605, 618.) Yuengs testimony was not tantamount to expressing an opinion as to defendants guilt, but an admissible opinion based on a hypothetical. (See People v. Torres (1995) 33 Cal.App.4th 37, 47-48.)
Further, unlike in Ramon, the evidence relating to the gang allegations was composed of more than just Yuengs opinion testimony. The record shows that members and associates of KTG were gathered at Blink and one of its associates, David Kim, suffered an embarrassing defeat after an altercation with Jun Min. As the two groups were taunting and cursing at one another, a member of David Kims group issued a gang challenge by asking, "Where you from?" Then, the KTG group decided to regain respect, a concept important to Asian gangs, by coordinating a group attack on Brian Chin. Unlike the evidence in Ramon, this constituted substantial evidence to support the true finding on the gang enhancement allegation. Accordingly, we find no abuse of the trial courts discretion in admitting it.
D. Sufficiency of Evidence
1. Evidence of Crime Being Committed for the Benefit of a Gang
Kim next argues there was insufficient evidence to support the true finding as to the gang allegation. More specifically, he complains that there was insufficient evidence that the killing was done for the benefit of KTG. According to Kim, there was nothing to support the prosecutions gang "respect" motive because there was no evidence of gang rivalry, gang promotion or the presence of more than a single gang member--Anfferney Kim.
Here, we find more than enough evidence to support a true finding on the gang enhancement allegation. Detective Yueng testified that both David Kim and Justin Hong were KTG associates at the time of Brian Chins murder and that Anfferney Kim was a known KTG member. Photographs of David Kim with Anfferney Kim and Justin Hong were found by the police during their investigation. Both David Kim and Justin Hong had burn marks indicating their affiliation with an Asian gang. Right before the assault, someone asked, "Where you from?" a well-known gang challenge.
Further, "[c]ommission 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 (2006) 145 Cal.App.4th 310, 322.) Chris Shin and Anul Kim told police that David Kim and Justin Hong participated in the assault on Brian Chin. Jun Min testified that he heard someone yell, "Shank him" during the assault. This is more than substantial evidence to show that David Kim committed the crime of aiding and abetting Brian Chins murder "in association" with KTG with the specific intent to promote, further and assist in criminal conduct by gang members.
In a letter brief, Kim called this courts attention to the case of People v. Ochoa (2009) 179 Cal.App.4th 650, for the proposition that the evidence was insufficient to show that the crime was committed for the benefit of a street gang. Ochoa, however, is distinguishable. In that case, there were no gang signs or other indications during the crime. The defendant was not accompanied by a fellow gang member. Though the evidence showed that defendant was a gang member and the crime he committed-carjacking-was a common crime committed by the defendants gang, nothing in the way the crime was committed indicated it was connected to the gang. The court stated: "The gang enhancement cannot be sustained based solely on defendants status as a member of the gang and his subsequent commission of crimes." (Id. at p. 663.) This simply is not the state of the evidence here.
2. Evidence of Primary Activities of the Gang
To prove the gang enhancement allegation, the prosecution also had to show beyond a reasonable doubt that, among other things, the gang "has, as one or more of its primary activities, the commission of murder, attempted murder, assault with a deadly weapon, or burglary." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323-324 (Sengpadychith).)
The California Supreme Court was called upon to construe the "primary activities" element of section 186.22(f) in Sengpadychith. There, the court explained: "The phrase primary activities, as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the groups chief or principal occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the groups members.... Though members of the Los Angeles Police Department may commit an enumerated offense while on duty, the commission of crime is not a primary activity of the department. Section 186.22... requires that one of the primary activities of the group or association itself be the commission of [specified] crime[s].... Similarly, environmental activists or any other group engaged in civil disobedience could not be considered a criminal street gang under the statutory definition unless one of the primary activities of the group was the commission of one of the enumerated crimes found within the statute. " (Sengpadychith, supra, 26 Cal.4th at pp. 323-324, quoting People v. Gamez (1991) 235 Cal.App.3d 957, 970-971.)
Kim contends that there is no substantial evidence that one of the primary activities of KTG consisted of murder, attempted murder, assault with a deadly weapon, or burglary, to support a true finding on the gang enhancement allegation. In re
Alexander L. (2007) 149 Cal.App.4th 605, 611 and People v. Perez (2004) 118 Cal.App.4th 151, 159-160, the two cases relied upon by Kim, are instructive on this point.
In In re Alexander L., a sheriffs deputy opined that graffiti sprayed by the defendant benefitted his gang because it might intimidate rival gangs. "When asked about the primary activities of the gang, he replied: I know theyve committed quite a few assaults with a deadly weapon, several assaults. I know theyve been involved in murders. [¶] I know theyve been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations. No further questions were asked about the gangs primary activities on direct or redirect examination. [¶] [The] entire testimony on this point is quoted above-he kn[e]w that the gang had been involved in certain crimes." (Id. at p. 611.) Without any foundation for his knowledge, the appellate court held the testimony by the gang expert failed to provide substantial evidence that the gang engaged in one of the enumerated crimes as its primary activity. (Id. at p. 614.)
In People v. Perez, supra, 118 Cal.App.4th at page 159, the prosecution presented evidence that the gang had participated in a beating six years before the subject crime and four shootings less than a week before the subject crime, with no evidence of any crime in between those incidents. This was held insufficient to establish the predicate crimes were one of the "primary activities" of the gang. (Ibid.)
Here, the evidence is much stronger. Yueng testified as to KTGs activities as follows:
"Q Now, what sort of crimes do KTG members commit?
A As far as I know, murder, the present case. Attempted murder, burglary, possession of weapons. Driving stolen vehicles. I think thats all I know.
Q How about assault?
A Assault with a deadly weapon, yes."
Yueng further testified that KTG was created in 2000 or 2002 and consisted of 15 to 20 members. Yueng testified that Hong and another KTG member committed an assault with a deadly weapon in 2006. Other KTG members were convicted of assault with a deadly weapon in 2002 and residential burglary in 2003.
The difference between the evidence provided in In re Alexander L. and People v. Perez is quite apparent. While there was no foundation for the experts testimony in In re Alexander L., there is no contention here that Yuengs testimony lacked foundation. Nor could there be; Yuengs opinions were the product of both practical and academic training, hands-on police experience with gangs and investigations of over 500 gangs, of which over 100 were Asian. In short, Yueng was eminently qualified to give the opinions that he gave. Moreover, this is not a case where Yueng failed to show the KTG consistently and repeatedly engaged in murder, attempted murder, assault with a deadly weapon or burglary like in People v. Perez.
Given the small number of KTG members and the short amount of time they have been in existence, Yuengs testimony regarding the specific crimes committed by KTG members provides substantial evidence to support the true finding on the gang enhancement allegation. The use of any magic words, such as "primary activity" is not required. Moreover, there is no requirement, despite Kims contention, that the crimes testified to by Yueng should happen at the time of the murder and not before.
II. Severance of Trial
Kim further contends the trial court erred when it denied the motion to sever his case from that of codefendant Justin Hongs. We review the trial courts ruling for an abuse of discretion. (Calderon v. Superior Court (2001) 87 Cal.App.4th 933, 938 (Calderon).
A leading case on the issue of severance is People v. Massie (1967) 66 Cal.2d 899, 917. There, the Supreme Court identified several factors for the trial court to consider when presented with a motion for separate trials of codefendants: an incriminating confession that prejudicially associates codefendants; prejudicial association with codefendants; likely confusion from evidence on multiple counts; conflicting defenses; and the possibility that at a separate trial a codefendant would give exonerating testimony. (Ibid.)
Guided by the analysis in Massie, we find no abuse of discretion. First, there was no incriminating confession that prejudicially associated the codefendants. Though both codefendants admitted to police that they were present at Chapman Plaza, they denied participating in the attack. Moreover, David Kim denied seeing Justin Hong participate in the assault on Brian Chin at trial. David Kim does not assert that conflicted defenses were or could have been presented at trial or that there was a possibility that he or Justin Hong could have given exonerating testimony at a separate trial. Nor does he contend there was confusion from evidence presented.
Instead, Kim contends he was prejudiced by his association with codefendant Justin Hong. "Given the introduction of Hongs prior stabbing incident, and the far more extensive evidence of his involvement with KTG, joint trial with Justin Hong deprived Kim of a fair trial." He contends that Calderon, supra, 87 Cal.App.4th at page 938 supports his position. In Calderon, the defendant and his codefendant were charged with two counts of premeditated attempted murder as a result of a violent confrontation with two young men. (Id. at p. 935.) In a separate, unrelated incident, the codefendant was charged with the execution-style murder of one person and attempted murder of another. The prosecution moved to consolidate, so that the codefendant would be tried of both incidents in one trial. The prosecution also sought to consolidate the defendants trial with the codefendants, and offered to stipulate that the defendant had no part in the execution-style murder. (Id. at pp. 936-938.) The trial court granted the motion and the defendant filed a writ of mandate. Noting that this case was different from other severance cases because it involved the trial of different incidents rather than just the trial of different defendants for the same event, Division Four of this court applied the analysis usually reserved for joinder cases. (Id. at pp. 938-939.) The writ was granted and the trial court was ordered to vacate its order granting the motion to consolidate on the grounds that it was unduly prejudicial to the defendant. (Id. at p. 941.)
Kim asserts he suffered the same prejudice as the defendant in Calderon did when his motion to sever was denied. We disagree. Unlike in Calderon, where the court consolidated the trial of different events and one of the events was much more inflammatory than the other, the trial here revolved around the same event the murder of Brian Chin. As a result, the witnesses and the evidence would have been the same, including evidence of Justin Hongs prior assault on Peter Roh, which would have been admissible to prove the primary criminal activities of KTG. Moreover, there was ample evidence that David Kim was involved in KTG, including testimony by Yueng and photographic evidence of his friendship with KTG members and associates. Though his association with Justin Hong is undeniably prejudicial, it does not militate in favor of a separate trial with all its attendant extra costs.
III. Sufficiency of the Evidence to Support First Degree Murder
Kim further contends that there was insufficient evidence to support the firstdegree murder verdict because the evidence that he participated in the attack was "at best equivocal" since no one identified him at trial as among the attackers and the surveillance tape from the parking lot showed he left within 23 seconds of his arrival. Further, there was no evidence that Kim knew Arnold Kim intended to kill Brian Chin or that he even had a knife.
Contrary to David Kims characterization of the evidence, his own testimony shows he went to Chapman Plaza expecting a fight. There was evidence at trial that he "took a swing" at a security guard at Blink who tried to stop him from following Brian Chin and his friends. He also identified himself in the surveillance video at Chapman Plaza as part of the group surrounding Brian Chin. He admitted the surveillance video failed to clearly record all of his actions in Chapman Plaza because the figure in the video he identified as himself became "immersed" in the group surrounding Brian Chin. He acknowledged that he could have been kicking Brian Chin at that time. Further, Chris Shin told the police that David Kim was "pumped up about jumping" Brian Chin afterwards.
Hanul Kim and Chris Shin told police they saw David Kim assaulting Brian Chin, although they later recanted those statements at trial. Whether these witnesses out-ofcourt statements were more credible than their trial testimony is a matter for the jury to decide. (People v. Cuevas (1995) 12 Cal.4th 252, 276.) Our task is limited to
"review[ing] 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." (People v. Johnson (1980) 26 Cal.3d 557, 578.) From our review of the record, we find there was substantial evidence to support a murder conviction.
IV. Instructional Error
In a supplemental brief, Kim further claims the trial court improperly instructed the jury on the natural and probable consequences doctrine of aiding and abetting. Relying on People v. Hart (2009) 176 Cal.App.4th 662 (Hart), a recent opinion from the Third District, Kim contends the instruction erroneously fails to advise the jury that to find Kim guilty of premeditated murder on a natural and probable consequences theory, it must do so with reference to whether a reasonable man in Kims position would have foreseen premeditated murder as a consequence of his actions. We find no error in the trial courts instruction.
The Attorney General initially contends that Kim has forfeited his contention because he failed to object to the instruction or request a modification during trial. However, a defendants contention that an instruction misstated the law or violated his right to due process "is not of the type that must be preserved by objection." (People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7; § 1259.) As a result, we consider Kims argument on the merits.
At trial, the jury was instructed that:
"To prove that the defendant is guilty of murder, voluntary manslaughter, or involuntary manslaughter under the natural and probable consequences doctrine of aiding and abetting, the People must prove that:
"1. The defendant is guilty of simple assault, or assault by means likely to produce great bodily injury;
"2. During the commission of simple assault, or assault by means likely to produce great bodily injury a coparticipant in that simple assault, or assault by means likely to produce great bodily injury, committed the crime of murder;
"AND
"3. Under all of the circumstances, a reasonable person in the defendants position would have known that the commission of the murder was a natural and probable consequence of the commission of the simple assault, or assault by means likely to produce great bodily injury.
"A coparticipant in a crime is the perpetrator or anyone who aided and abetted the perpetrator. It does not include a victim or innocent bystander.
"A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If the murder was committed for a reason independent of the common plan to commit the simple assault, or assault by means likely to produce great bodily injury, then the commission of murder was not a natural and probable consequence of simple assault, or assault by means likely to produce great bodily injury.
"To decide whether the crime of murder, voluntary manslaughter, or involuntary manslaughter was committed, please refer to the separate instructions that I will give you on those crimes.
"The People are alleging the defendant originally intended to aid and abet either simple assault, or assault by means likely to produce great bodily injury.
"A defendant is guilty of murder, voluntary manslaughter, or involuntary manslaughter if you decide that the defendant aided and abetted one of these crimes and that murder, voluntary manslaughter, or involuntary manslaughter was the natural and probable result of one of these crimes. However, you do not need to agree about which of these two crimes the defendant aided and abetted."
The jury was also instructed on the elements of murder, premeditation and deliberation, and the lesser crimes of voluntary and involuntary manslaughter. It was instructed on the required mental states for each of those offenses as well as the mental state for assault.
In Hart, an accomplice was convicted of premeditated attempted murder when his codefendant shot the owner of a liquor store during the course of their armed robbery. (Hart, supra, 176 Cal.App.4th at p. 665.) The jury was given instructions that it could find the defendant guilty of attempted murder if it found that it was a natural and probable consequence of attempted robbery. On appeal, the accomplice argued that the instructions erroneously precluded the jury from finding him guilty of any lesser degree of murder. The Third District found that the instructions were insufficient. It held that the instructions failed to inform the jury that in order to find the accomplice guilty of attempted premeditated murder "it was necessary to find that attempted premeditated murder, not just attempted murder, was a natural and probable consequence of the attempted robbery." (Id. at p. 673) The evidence could have supported a finding that attempted unpremeditated murder was a natural and probable consequence of the attempted robbery, but not attempted premeditated murder.
The court reasoned: "The trial court properly instructed the jury concerning premeditation and deliberation, as it relates to the attempted murder, stating, in essence, that it is a subjective state of mind. However, in determining whether the premeditation and deliberation element was a natural and probable consequence of the attempted murder, the jury does not look at the aider and abettors subjective state of mind. Therefore, the general instruction concerning the premeditation and deliberation element of attempted murder did not properly inform the jury concerning its duty with respect to the natural and probable consequences doctrine." (Hart, supra, 176 Cal.App.4th at p. 673.) Hart concluded, given the evidence, that the defendant was prejudiced because the trial court "failed to inform the jury that it could convict [the defendant] of a lesser crime than [the perpetrators] crime under the natural and probable consequences doctrine." (Id. at p. 674.)
Under Hart, a trial court has the sua sponte duty, when a defendants liability for attempted first degree murder is as an accomplice under a natural and probable consequences theory, to instruct the jury that it must determine whether premeditation and deliberation, as it relates to the attempted murder, was a natural and probable consequence of the target crime when the evidence would support a finding that a lesser degree of attempted murder was foreseeable and that the greater degree of the crime was not foreseeable. (Hart, supra, 176 Cal.App.4th at p. 673.) If the trial court fails to do so, it leaves the jury with the erroneous impression that it may not find the aider and abettor less culpable than the principle. (Ibid.)
Even if we were to follow Hart, we find it distinguishable here because the trial court gave the jury the option of convicting him of the lesser crimes of voluntary and involuntary manslaughter under the natural and probable consequence doctrine. The jury rejected that option.
Hart is also distinguishable insofar as it held that the instructions failed to inform the jury that in order to find the accomplice guilty of attempted premeditated murder "it was necessary to find that attempted premeditated murder, not just attempted murder, was a natural and probable consequence of the attempted robbery." (Hart, supra, at p. 673) Here, the jury had to make reference to the definition of either first or second degree murder equally by reference to other properly given instructions. The jury was not simply informed that attempted murder had to be evaluated to determine if it was a natural and probable consequence of the target crime and yet not told that attempted premeditated murder also must be likewise considered. Here, the jury was instructed that it must determine if murder was a natural and probable consequence, and the definition of both murder in the first and second degree were equally accessible to the jury under other properly given instructions. Even if there were an error under Hart, it simply is not present here.
However, we find the case of People v. Cummins (2005) 127 Cal.App.4th 667, 680 (Cummins), the better reasoned decision in this area. There, Division One of this District found that the trial court did not have to specifically instruct the jury that it must find premeditated attempted murder was a natural and probable consequence of the target crime. Cummins found the accomplice in that case "was a willing and active participant in all the steps that led to the attempt on [the victims] life." (Id. at p. 680.) The defendants had kidnapped the victim, taken him to the edge of a cliff, and then one of the defendants pushed him off. Cummins concluded that, "[a]lthough the evidence did not conclusively determine which defendant had physical contact with the victim when he was pushed," the accomplices conduct made him "no less blameworthy than" the actual perpetrator. (Id. at pp. 680-681.) Unlike in Hart, the evidence in Cummins supported a finding that a greater degree of murder was foreseeable.
The court determined that an aider and abettor need not have acted with premeditation and deliberation in order to be convicted of attempted premeditated murder under the natural and probable consequences doctrine. The Cummins court found that when a jury is properly instructed on the elements of attempted premeditated murder and the natural and probable consequences doctrine, nothing more is necessary. The Cummins court rejected the need for a Hart-type instruction. The court found that because the jury was properly instructed on the elements of attempted premeditated murder, "[n]othing more was required." (Cummins, supra, 127 Cal.App.4th at p. 681.)
With both Hart and Cummins to guide us, we conclude that the evidence supports a finding that first degree murder was foreseeable. Despite David Kims contention, this was no mere drunken barroom brawl. This was a criminal street gang and one of its associates had lost a physical altercation; they made the decision to save face and regain any lost respect by retaliating. They followed Brian Chin and his friends from Blink, down the escalator and down the street to Chapman Plaza. Along the way, the guard at Blink tried to stop them, but David Kim "took a swing" at him. They incapacitated Brian Chins friends, who could have helped him, by using mace or pepper spray on two of them and by threatening a third with a knife. David Kim admitted he went to Chapman Plaza, expecting a fight. Two witnesses told the police that they saw David Kim participating in the attack on Brian Chin. At the time of the attack, people were shouting "Shank him," indicating someone had a knife and others knew about it.
Under these circumstances, it was reasonable for the jury to find that a reasonable person in Kims position would have or should have foreseen premeditated murder. Although murder may not always be a natural and probable consequence of an assault, under certain factual circumstances, particularly in the gang context, a jury is entitled to find that it was. (People v. Medina (2009) 46 Cal.4th 913, 927-928.) Such was the case here.
V. Ineffective Assistance of Counsel
On July 6, 2009, David Kim filed a petition for writ of habeas corpus on the ground that he received ineffective assistance of counsel when his trial counsel failed to object to admission of the gang evidence. This argument was also included in his opening brief. In support of his writ petition, David Kims trial counsel submitted a declaration that he had "no tactical or other reason" for his failure. Instead, he "believed that the presentation of gang evidence by the prosecution would be highly prejudicial to [David Kims] defense. For that reason [he] sought to minimize the impact of that evidence by moving to bifurcate the trial of the gang enhancement from the trial of the murder charge." He then failed to object to the introduction of the gang evidence because he "simply did not think about doing so."
As requested, we join Kims petition for writ of habeas corpus with his direct appeal and consider the issue in this opinion. (People v. Pope (1979) 23 Cal.3d 412, 426-427, fn. 17.)" Familiar principles govern our review of this issue. The burden of proving a claim of inadequate trial assistance is on the appellant. [Citation.] He must show that counsels representation fell below an objective standard of reasonableness under prevailing professional norms. Additionally, he must establish prejudice, i.e., a reasonable probability that absent counsels unprofessional errors the result would have been different, before he can obtain relief. [Citations.] Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. [Citations.] [Citations.] Moreover, when no error occurred, defense counsel was not ineffective in making no objection. [Citations.] Finally, a mere failure to object to evidence or argument seldom establishes counsels incompetence. [Citations.]" (People v. Felix (1994) 23 Cal.App.4th 1385, 1394-1395.)
In support of his petition, Kim repeats his argument, found in his opening brief, that the gang evidence should have been excluded because it turned an ordinary brawl into a gang murder in the eyes of the jury. As a result, trial counsel provided ineffective assistance when he failed to object to its admission. For the reasons detailed in section I of this opinion, the gang evidence was relevant and admissible to prove the gang enhancement allegations. Accordingly, trial counsels failure to object was not ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed and the petition for writ of habeas corpus is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BIGELOW, P. J.
We concur:
FLIER, J.
GRIMES, J.