Superior Court of Los Angeles County, No. BA037738, Joyce Ann Karlin, Judge.
Opinion by Ashby, Acting P. J., with Boren, J., Concurring. Grignon, J., concurred in the result.
Defendant Soon Ja Du was convicted of voluntary manslaughter in the killing of Latasha Harlins, a customer in defendant's store. Defendant was sentenced to 10 years in state prison. The sentence was suspended and defendant was placed on probation under certain terms and conditions. Petitioner (District Attorney) contends the court abused its discretion in granting probation and seeks a writ of mandate directing the court to "impose a legal sentence of an appropriate term in state prison."*fn1
In an indirect way, the District Attorney has correctly framed the single issue in this case: was the sentence imposed by the respondent court "legal," that is, was it in accordance with statutorily defined sentencing guidelines.
A trial court has broad discretion in determining whether or not to grant probation. In reviewing that determination it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court's order granting probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances. Utilizing this standard of review, we conclude that the respondent court's determination was not an abuse of discretion. Accordingly, we deny the petition.
The crime giving rise to defendant's conviction occurred on the morning of March 16, 1991, at the Empire Liquor Market, one of two liquor stores owned and operated by defendant and her family. Although Empire Liquor was normally staffed by defendant's husband and son while defendant worked at the family's other store in Saugus, defendant worked at Empire on the morning of March 16 so that her son, who had been threatened by local
gang members,*fn3 could work at the Saugus store instead. Defendant's husband, Billy Du, was present at the Empire Liquor Market that morning, but at defendant's urging he went outside to sleep in the family van because he had worked late the night before.
Defendant was waiting on two customers at the counter when the victim, 15- year-old Latasha Harlins, entered the store. Latasha proceeded to the section where the juice was kept, selected a bottle of orange juice, put it in her backpack, and proceeded toward the counter.
Defendant had observed many shoplifters in the store,*fn4 and it was her experience that people who were shoplifting would take the merchandise, "place it inside the bra or anyplace where the owner would not notice," and then approach the counter, buy some small items and leave. Defendant saw Latasha enter the store, take a bottle of orange juice from the refrigerator, place it in her backpack and proceed to the counter. Although the orange juice was in the backpack, it was partially visible. Defendant testified that she was suspicious because she expected if the victim were going to pay for the orange juice, she would have had it in her hand.
Thirteen-year-old Lakeshia Combs and her brother, nine-year-old Ismail Ali, testified that Latasha approached the counter with money ("about two or three dollars") in her hand. According to these witnesses, defendant confronted Latasha, called her a "bitch" and accused her of trying to steal the orange juice; Latasha stated she intended to pay for it. According to defendant, she asked Latasha to pay for the orange juice and Latasha replied, "What orange juice?" Defendant concluded that Latasha was trying to steal the juice.*fn5
Defendant began pulling on Latasha's sweater in an attempt to retrieve the orange juice from the backpack. Latasha resisted and the two struggled. Latasha hit defendant in the eye with her fist twice. With the second blow,
defendant fell to the floor behind the counter, taking the backpack with her. During the scuffle, the orange juice fell out of the backpack and onto the floor in front of the counter. Defendant testified that she thought if she were hit one more time, she would die. Defendant also testified that Latasha threatened to kill her. Defendant picked up a stool from behind the counter and threw it at Latasha, but it did not hit her.
After throwing the stool, defendant reached under the counter, pulled out a holstered .38-caliber revolver, and, with some difficulty, removed the gun from the holster. As defendant was removing the gun from the holster, Latasha picked up the orange juice and put it back on the counter, but defendant knocked it away. As Latasha turned to leave defendant shot her in the back of the head from a distance of approximately three feet, killing her instantly. Latasha had $2 in her hand when she died.
Defendant's husband entered the store upon hearing defendant's calls for help and saw Latasha lying on the floor. Defendant leaned over the counter and asked, "Where is that girl who hit me?" Defendant then passed out behind the counter. Defendant's husband attempted to revive her and also dialed 911 and reported a holdup. Defendant, still unconscious, was transported to the hospital by ambulance, where she was treated for facial bruises and evaluated for possible neurological damage.
At defendant's trial, she testified that she had never held a gun before, did not know how it worked, did not remember firing the gun and did not intend to kill Latasha.
Defendant's husband testified that he had purchased the .38-caliber handgun from a friend in 1981 for self-protection. He had never fired the gun, however, and had never taught defendant how to use it. In 1988, the gun was stolen during a robbery of the family's store in Saugus. Defendant's husband took the gun to the Empire store after he got it back from the police in 1990.
David Butler, a Los Angeles Police Department ballistics expert, testified extensively about the gun, a Smith & Wesson .38-caliber revolver with a two-inch barrel. In summary, he testified that the gun had been altered crudely and that the trigger pull necessary to fire the gun had been drastically reduced. Also, both the locking mechanism of the hammer and the main spring tension screw of the gun had been altered so that the hammer could be released without putting much pressure on the trigger. In addition, the safety mechanism did not function properly.
After Conclusion of the testimony at trial, the court granted a defense motion to dismiss the charge of first degree murder. The jury was instructed
on second degree murder, two theories of voluntary manslaughter (sudden quarrel or heat of passion [CALJIC Nos. 8.42, 8.43 and 8.44] and honest but unreasonable belief in self-defense [CALJIC No. 5.17]), and involuntary manslaughter.
The jury found defendant guilty of voluntary manslaughter and also found true special allegations that defendant personally used a firearm, within the meaning of Penal Code sections 1203.06, subdivision (a)(1) and 12022.5. By convicting defendant of voluntary manslaughter, the jury impliedly found that defendant had the intent to kill and that the killing was unlawful, i.e., that it was neither justifiable nor excusable. (CALJIC No. 8.40.) Thus, the jury rejected the defenses that the killing was unintentional and that defendant killed in self-defense.
After defendant's conviction, the case was evaluated by a Los Angeles County Probation officer, who prepared a presentence probation report. That report reveals the following about defendant:
At the time the report was prepared, defendant was a 51-year-old Korean- born naturalized American citizen, having arrived in the United States in 1976. For the first 10 years of their residence in the United States, defendant worked in a garment factory and her husband worked as a repairman. Eventually, the couple saved enough to purchase their first liquor store in San Fernando. They sold this store and purchased the one in Saugus. In 1989, they purchased the Empire Liquor Market, despite being warned by friends that it was in a "bad area."
These warnings proved prophetic, as the store was plagued with problems from the beginning. The area surrounding the store was frequented by narcotics dealers and gang members, specifically the Main Street Crips. Defendant's son, Joseph Du, described the situation as "having to conduct business in a war zone." In December 1990, defendant's son was robbed while working at the store and he incurred the wrath of local gang members when he agreed to testify against one of their number who he believed had committed the ...