(San Mateo County Super. Ct. No. 061477). Barbara J. Mallach, Judge.
The opinion of the court was delivered by: Bruiniers, J.
Filed 04/06/2010; opinion following order vacating prior opinion
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Appellant Ryan Brian Bui (Bui) was convicted of two counts of burglary, one count of attempted burglary, and one count of receiving stolen property. He maintained his constitutional right to a public trial was violated by the trial court's temporary exclusion of family members from the courtroom during jury voir dire. Bui also claimed error in the court's exclusion of certain evidence offered in support of his defense theory of third party culpability. We found any error in exclusion of persons from the courtroom to be de minimus and affirmed. Bui petitioned for review. The California Supreme Court directed this court to vacate our prior decision and reconsider in light of Presley v. Georgia (2010) ___ U.S. ___ [130 S.Ct. 721] (Presley). In the published portion of this decision, we conclude that Presley does not alter the "de minimus" doctrine recognized by the California Supreme Court on which our prior decision relied. Accordingly, we affirm.
The San Mateo County District Attorney charged Bui by information with two counts of burglary (Pen. Code, § 460, subd. (a)),*fn2 one count of attempted burglary (§§ 460, subd. (a), 664), and one count of receiving stolen property (§ 496, subd. (a)). The information also alleged that Bui was on parole at the time he committed the last offense, and that he had a prior conviction for one count of residential burglary in San Francisco, and a San Mateo prior conviction for five counts of residential burglary. These prior convictions were alleged as strikes under section 1170.12, subdivision (c)(2), and enhancements under sections 667.5, subdivision (b), and 667, subdivision (a).
A jury found Bui guilty of all four counts, and found all the enhancing allegations to be true. Bui moved for a new trial on the basis of denial of his right to public trial and exclusion of third party culpability evidence. The trial court denied the motion. The court sentenced Bui to 25 years to life on the first count of burglary, and to a consecutive determinate term of 21 years 8 months on the remaining counts.
We affirmed the conviction in an unpublished decision on October 7, 2009. Bui filed a petition for reconsideration and a petition for writ of habeas corpus, which we also denied. On February 3, 2010, the California Supreme Court granted his petition for review and ordered this court to vacate its decision and reconsider the cause in light of Presley, supra, 130 S.Ct. 721.
On March 10, 2004, a number of homes in Foster City were burglarized. Sharon and Yao Chi reported jewelry and cash missing from their Beach Park Boulevard home that day. Police also discovered that the home of George and Pamela Hung, also of Beach Park Boulevard, was burglarized the same day.
A third homeowner, Tommy Hui, was at home on Williams Lane on March 10th. He heard the doorbell ring, but did not answer the door because he did not recognize the black Range Rover parked in front of his house. Ten or fifteen minutes later, Hui heard the noise of his gate opening, and then heard a metallic ringing sound. He went downstairs and saw two men at his sliding glass door. Hui started yelling, and both men fled. Hui called police, describing the black Range Rover and giving them a partial license plate number.
Foster City police officer William Sandri responded to the call. Within two minutes of receiving the call, as he headed towards Williams Lane, Sandri saw a black Range Rover matching the description given. The Range Rover was stopped at a stop sign at the corner of Edgewater Boulevard and Port Royal Avenue. Sandri observed "two light-skinned males" in the vehicle, which he followed. He lost sight of the vehicle for "a minute or more," then saw it again in front of a RadioShack store in a shopping center on Edgewater. Sandri turned on his emergency lights in order to stop the vehicle. The Range Rover turned down an alley "at a high rate of speed." Sandri pursued the vehicle, which came to a stop at the alley's dead end. The two men in the vehicle exited and fled southbound out of the parking lot. Sandri gave chase and caught up with them near the south end of the shopping center. The two men were "doubled over out of breath," and Sandri ordered them to get on the ground. Sandri identified Bui as one of the men and Hoa Khuu as the second person.
Neither man complied with Sandri's order, instead "jump[ed a] wall" into the yard of a residence on Monterey Avenue. Sandri radioed for backup, and informed his colleagues of the direction the men were headed. Foster City police officer Mark Lee responded and met Sandri on the 1000 block of Monterey. Lee went through the backyard of a residence and saw an Asian male, later identified as Hoa Khuu, running along the water of a lagoon behind the house. Khuu first hid on a boat, then went in the water, saying to the officers "[G]o ahead and fucking shoot me." He then got out of the water and continued to run, eventually being found hiding in a garbage can.
That same day, Mary Elkington heard a noise outside her Bristol Court, Foster City home. She went outside and saw an Asian male in his 20's. She asked him what he was doing, then told him to leave. The man got down on his knee behind some trees and gestured as though "[h]e wanted [her] to be quiet." The man then got up and ran. Later, Elkington's husband found two pieces of paper in the spot where the man had hidden. One was Bui's interim driver's license, and the other was a list of names, addresses and telephone numbers. The Hung and Chi addresses were on the list, with a line through the Hung's address.
Foster City police officer Eric Egan also responded to Sandri's call. He went into the backyard of a house near Elkington's home, and saw Bui on the ground under some bushes. He told Bui to get out of the bushes and down on the ground. As Egan holstered his gun, Bui fled. Other officers joined the chase, and they and Egan "took [Bui] to the ground and placed him in handcuffs."
Khuu testified at trial*fn3 that he and Mark Pham had committed the burglaries, not Bui. He claimed that Pham utilized information gleaned during his employment at a real estate firm to make the list of names and addresses found by the Elkingtons, targeting Asian families based on a belief that they kept cash in their homes. Khuu said that he and Pham asked to borrow Bui's Range Rover (which was registered to Bui's sister) on March 10, but did not tell him they intended to commit burglaries. He also borrowed Bui's driver's license in case the police pulled them over. Khuu stated that Bui drove him and Pham to a shopping center in Foster City, then got out of the car. Khuu told Bui they were going to visit a friend, but instead they committed the burglaries. After a homeowner chased them, they went to pick up Bui who was waiting inside the RadioShack. Pham ran into the store and got Bui. Pham got into the back seat of the Range Rover and crouched down. A police car started following them about 30 seconds ...