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People v. Em

March 3, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RICHMAN EM, DEFENDANT AND APPELLANT.



Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed. (Super. Ct. No. 06ZF0140).

The opinion of the court was delivered by: Fybel, J.

CERTIFIED FOR PUBLICATION

OPINION

INTRODUCTION

Defendant Richman Em appeals from a judgment finding him guilty of the first degree murder of Miguel Davila, and from the two consecutive 25-years-to-life sentences imposed on him. Mr. Davila was the innocent victim of a murder during a robbery by gang members, including defendant. We affirm. Substantial evidence supported defendant‟s murder conviction. Defendant was charged with aiding and abetting or being part of a conspiracy to commit the underlying crime of robbery, and was convicted of murder based on the felony-murder doctrine. Defendant‟s sentence is not cruel or unusual punishment under either the California Constitution or the United States Constitution even though defendant was 15 years and nine months old when Mr. Davila was murdered.

STATEMENT OF FACTS AND PROCEDURAL HISTORY*fn1

Shortly after midnight on May 11, 2006, while sitting in his parked police cruiser, Garden Grove Police Officer David Scroggins heard four shots fired nearby. He looked toward a self-service carwash across the street from where he was parked, and saw two people running. Officer Scroggins saw a Toyota Corolla emerge from the carwash; he followed it and initiated a felony vehicle stop. Four persons were in the car: defendant, Narong Thongdeng, Joshua Richards, and Sharon Pech. A handgun was partially concealed below the driver‟s seat, and a blue-and-white bandana was on the backseat.

Another officer, Timothy Kovacs, was dispatched to the carwash, where he found Mr. Davila in the driver‟s seat of his car. Mr. Davila had been shot several times.

Officer Kovacs asked him what had happened; Mr. Davila replied, "they shot me." When asked who had done this, Mr. Davila replied, "two Asian guys" who were wearing bandanas. (Richards is not Asian; defendant is Asian.) Three bullet casings were found in Mr. Davila‟s car, and one was found outside the front passenger side door.

Mr. Davila died as a result of exsanguination. An autopsy revealed four bullets had penetrated Mr. Davila‟s body; two had caused the fatal injuries.

Later in the morning of May 11, defendant was interviewed at the police station by Detectives McLeod and Ashby.*fn2 Defendant admitted he was "jumped into" the Exotic Family City Crips (EFCC) gang in January 2005; the gang had about 30 members, most of whom were Cambodian. Defendant‟s moniker was "Lolo."

Defendant told the officers he had met Thongdeng, whose moniker was "Joker," a few days before the shooting. He had met Richards, whose moniker was "Thug," the previous day. Thongdeng and Pech picked up defendant in Wilmington and drove to Long Beach about 10:30 p.m. on May 10. They picked up Richards, drove to Garden Grove, and pulled into the carwash. Defendant initially told the officers he got out of the car to urinate, heard gunshots, and saw Thongdeng running back to the car. Defendant further said that, after he hopped back in the car, Thongdeng tossed a gun to him; defendant slid it under the driver‟s seat before the car was stopped by Officer Scroggins.

As the interview continued, defendant changed his story. Ultimately, defendant stated that, after he urinated, he went back to the car, where Thongdeng and Richards said, "they wanted to steal [Mr. Davila‟s] car and stuff." Richards had a gun in his pocket, and had given it to Thongdeng when they arrived at the carwash. Defendant and Richards told Thongdeng "it‟s on" him if he wanted to do it. Defendant stated, "I didn‟t know he was going to shoot him. I thought he was just going to take the car." Defendant saw Thongdeng demand money and car keys from Mr. Davila, and then saw Thongdeng shoot Mr. Davila.

When defendant, Thongdeng, and Richards got back in the car, Richards said to Thongdeng, "[m]an, I should have never gave it [the gun] to you. I knew you was going to pop him." When one of the detectives asked defendant, "[w]hat‟d you and [Richards] say when [Thongdeng] came up with the idea to rob this guy," defendant responded, "we didn‟t say nothing. It was like . . . we just said it‟s on you . . . . [¶] . . . [¶] We didn‟t say nothing. We just said it‟s on you if you want to do it and he said, yeah, I‟m a . . . he‟s just like, "Well, give it to me. I‟m gonna do it.‟ He just came up to him and did it."

At trial, a gang expert testified the EFCC gang was an Asian gang, also known as the Exotic Family City Crips. The gang had more than 80 members, and was located in Long Beach. EFCC members primarily commit crimes such as burglaries, home invasion robberies, auto thefts, assaults, shootings, stabbings, homicides, and crimes involving narcotics and firearms. The blue-and-white bandana found in the Toyota Corolla was typical of EFCC attire. Defendant had tattoos reading "EFCC" and "Lolo," as well as a tattoo of five dots, signifying he was an Asian gang member, and tattoos of an "E" and an "F" on his arms and shoulders. The dark clothing defendant was wearing at the time of Mr. Davila‟s shooting would assist a gang member in committing crimes at night without being seen, and would make it more difficult to identify him later.

The gang expert testified defendant, Thongdeng, and Richards were all members of the EFCC gang. Defendant had admitted his gang membership to police officers in the past. The expert opined that defendant was an active member of the EFCC gang on May 11, 2006.

Defendant was charged in an indictment with murder (Pen. Code, § 187, subd. (a)) and active participation in a criminal street gang (id., § 186.22, subd. (a)). The indictment alleged defendant was liable for the vicarious discharge of a firearm by a gang member, causing death (id., § 12022.53, subds. (d) & (e)(1)),*fn3 and the murder had been committed for the benefit of, at the direction of, or in association with a criminal street gang (id., § 186.22, subd. (b)).*fn4

A jury found defendant guilty of both counts, and found the enhancement allegations to be true. Defendant was sentenced to a total of 50 years to life. He was sentenced to 25 years to life for Mr. Davila‟s murder, and to a consecutive term of 25 years to life on the firearm enhancement. Pursuant to Penal Code section 654, sentence on the conviction for active participation in a criminal street gang was stayed; pursuant to section 12022.53, subdivision (e)(2), sentence on the gang enhancement was stricken.

DISCUSSION

I. THE EVIDENCE IS SUFFICIENT TO SUPPORT THE JUDGMENT ...


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