(Super. Ct. No. 09F02783)
The opinion of the court was delivered by: Butz,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Sem Saephanh of two counts of discharging a firearm from a motor vehicle, and found he personally and intentionally discharged a firearm, causing great bodily injury. (Pen. Code, §§ 12034, subd. (c), 12022.53, subd. (d).) The trial court sentenced defendant to state prison for 50 years to life, plus six years eight months. The trial court awarded defendant 265 days of actual custody credit, but because defendant committed a violent felony, his conduct credit award was limited to 15 percent of his actual credits, or 40 days. (See Pen. Code, § 2933.1.) Defendant timely filed this appeal.
There was evidence that the shooting was in response to an earlier quarrel that had its genesis in gang epithets between Crips and Bloods. On appeal, defendant contends the trial court improperly allowed the prosecution to introduce evidence of a gang motive, because no gang offenses were charged, and defendant's purported "gang" did not meet the statutory definition of a criminal street gang.
We conclude the gang evidence was relevant to motive, and therefore the trial court did not abuse its discretion. Further, any error was harmless, given the strength of the evidence that defendant was the shooter. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant's brother, Dach Saephanh, had been a co-defendant. The People moved in limine to introduce evidence of a gang motive, because defendant and his brother had made statements to the police that "the victim group was using derogatory terms for Crip gang members and that is what instigated the fight." The trial judge found the evidence was admissible with a limiting instruction, because "as I understand it, you have a situation where there's some derogatory name calling as it pertains to gangs, based upon that there's some sort of confrontation that ultimately leads to the shooting based upon the disrespect." The court said, "[J]urors are not stupid. And . . . they have seen so much TV and read so much in the papers in terms of what 'blue' and 'red' mean."
After Dach's Miranda motion was denied, and during jury selection, he pleaded no contest to two counts of discharging a firearm from a vehicle, in exchange for a sentence of four years eight months. The court later so sentenced him, and he did not appeal.
Before the first witness testified, the trial court reiterated its ruling regarding gang evidence.
As will be seen, although the witnesses differed on some points, they largely corroborated each other's testimony.
Victim Brittany R. testified that on the afternoon of April 8, 2009, she was with Robert J., her boyfriend, who "hangs out" with Blood gang members. They walked towards the SD Mart and met K.C., aged 16, and two Black male teenagers, aged 14 and 17. K.C. was Black, and Robert J. was Black and Filipino. The 14-year-old bragged "about how he disrespected . . . some Asian Crips at SD Mart the day before." Before the group entered the market, "about four Asian guys"--wearing blue--"walked up from behind us and then like they started messing with [Robert J.] first."
A couple of punches were thrown, but then a blue Honda pulled up and almost hit K.C., then some or all of the "Asian guys" got into it and the car left. Brittany R.'s group talked at the back of the market, and then began walking "in the opposite direction towards the main street and then that's when the Ford Explorer pulled up and stopped all of a sudden and the shooter stuck the gun out of the window, he cocked it back and ...