APPEAL from a judgment of the Superior Court of Yuba County, Kathleen R. O'Connor, Judge. Affirmed as modified. (Super. Ct. No. CRF08-0225).
The opinion of the court was delivered by: Butz, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury acquitted defendant Thang Yang of murder, attempted murder, and shooting at an occupied car (Pen. Code, §§ 187/664, 246),*fn2 but convicted him of voluntary manslaughter and participating in a criminal street gang (§§ 192, subd. (a) [count I], 186.22, subd. (a) [count IV]). The jury also sustained the following firearm enhancement on the voluntary manslaughter conviction: a co-principal personally and intentionally discharged a firearm, causing death, in an offense that was gang-committed. (§ 12022.53, subds. (d) & (e)(1) [hereafter section 12022.53(d) and (e)(1)].)
In the unpublished portion of this opinion (pts. I., II., & III., post), we disagree with defendant that the evidence is insufficient regarding his aiding and abetting of the voluntary manslaughter and a gang enhancement (§ 186.22, subd. (b)(1)(C)), and that the trial court erred in instructing on aiding and abetting and in failing to bifurcate gang allegations.
In the published portion (pt. IV., post), we agree with defendant that the enhancement for firearm discharge by a co-principal that caused death in a gang-committed felony (§ 12022.53(d) & (e)(1)--25 years to life) does not apply to him, because defendant was not convicted of one of the qualifying offenses enumerated in that statute. Consequently, we shall modify the judgment by striking this 25-year-to-life enhancement and imposing on defendant the previously stayed 10-year enhancement for a gang-committed violent felony. (§§ 186.22, subd. (b)(1)(C), 667.5, subd. (c)(1).) In all other respects, we shall affirm the judgment.
On the afternoon of May 8, 2008, in Linda, California, Ignacio Castro was in the front passenger seat of a car driven by his older brother, Raymond Castro, when the two of them noticed defendant's car stopped behind them at a traffic light. Earlier in the day, Raymond had seen defendant's car drive by where Raymond worked.*fn3 Ignacio, who was 17 years old, had known defendant, who was nearly 17, since kindergarten.*fn4 As we shall explain later, there was tension between defendant and the Castro brothers.
When the traffic light changed, Raymond turned right and defendant went straight ahead. Raymond handed Ignacio a heavy flashlight to protect himself in case of trouble.
Shortly thereafter, when Raymond and Ignacio saw defendant's car driving on Oakwood Drive, Raymond sped up, ran a stop sign, and turned onto Oakwood, getting about two car lengths behind defendant.
Ignacio testified that, as he and Raymond followed defendant, Meng Thao (Thao) leaned out of the passenger's side window of defendant's car, pointed a gun at the Castros, and fired.*fn5 Raymond pushed Ignacio down and started to make a U-turn. Ignacio heard more gunfire and then noticed Raymond had been shot. Raymond's car coasted to the curb, and stopped; Raymond had been felled by a bullet to the head.
Ignacio, along with another witness, as well as defendant himself, placed defendant, Thao and Kue in defendant's car at the time of the shooting.
An eyewitness to the shooting, who lived on Oakwood Drive, saw defendant's car drive slowly at an angle over the first speed bump (which most cars that height do, to avoid scraping); drive slowly between the two speed bumps (which was odd, because most cars speed up between the two speed bumps); and then increase its speed over the second bump and turn abruptly at the first intersecting street. This witness, as well as the police, also searched Raymond's car for weapons and ammunition just after the shooting, finding none; nor did Ignacio have anything in his hands.
Defendant's car was located after the shooting in an area claimed by defendant's gang, beneath a car cover with its engine still warm. The rear window of the car was shattered. Shattered glass had been found at the shooting site. A criminalist determined that a bullet traveled from the front to the back of the car, entered the edge of the rear window frame, and shattered the rear window.
Forensic evidence and a police interview statement from defendant linked the nine-millimeter handgun used in the shooting to Thao as well as to defendant's car (at the time of the shooting).
Gang Evidence and History Between Defendant and the Castros
There was extensive evidence that defendant, Thao and Kue were members of an active criminal street gang, the Hmong Nation Society (HNS). This evidence came from defendant's admissions, from tattoos, from police searches and contacts, from gang expert testimony, and from altercations involving defendant and Thao acting together.
The HNS gang expert testified that respect and intimidation are paramount in gang culture and that if a gang member feels disrespected, some type of retaliatory violence will usually follow. Defendant essentially echoed this testimony in a police interview, and also agreed that an HNS drive-by shooting would build HNS's reputation.
Defendant and Ignacio had been fighting and having problems with one another since the eighth grade.
In March of 2008, defendant, along with others, were at a Wal-Mart when they became embroiled in a fight with Ignacio and Raymond and another Castro brother. Raymond hit defendant in the head and threatened to kill those in defendant's group. Defendant was afraid because, according to him, Raymond, whose street name was Demon, had recently been paroled from prison.*fn6 Also according to defendant, after the Wal-Mart incident, Raymond drove by his house several times (once with Ignacio) and looked at him menacingly; apparently fired gunshots near the house of a friend of defendant's who was involved with defendant in the Wal-Mart fight with the Castros; and (with Ignacio and two others) threatened defendant's brother in a gang-related way.
Before the shooting at issue here, defendant had told Thao and Kue about what had happened at Wal-Mart, about Raymond's threats there, and about Raymond's drive-by glares.
On the day before the shooting, Thao, accompanied by defendant, started a fight with Jaime Razo, the Castro brothers' cousin. During this fight, defendant said, Thao pulled out the gun that he usually carried--a ...