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The People v. Sem Saephanh


January 27, 2011


(Super. Ct. No. 09F02783)

The opinion of the court was delivered by: Butz,j.

P. v. Saephanh CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.


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 then he shot at us." This was about five minutes after the Honda left. Brittany R. ran and was shot in the wrist.

Brittany R. did not at first identify defendant in court, but had identified the shooter at the hospital, and identified a photograph of him, and then identified him in court, explaining "[h]is appearance has changed." She testified that defendant had not been part of the group of Asians who confronted her group before the shooting.

Robert J., testified all the Asians were wearing blue and they attacked his group, then "hopped back in the car. Came back about two minutes later and that's when he pulled out the semiautomatic handgun." Robert J. admitted that "in 2006 I got validated as a Valley Hi gang member," and the Valley Hi Blood is also known as Valley Hi Piru. He testified that he no longer associates with gang members. Bloods wear red and Crips wear blue, but nobody in his group was wearing red that day. He testified the shooter was in a "Ford" 4Runner.

A security guard testified defendant worked for his company, and he saw defendant inside the SD Mart before the shooting, although it was defendant's day off.

Michael W. testified he was with Robert J., Brittany R. and K.C., and a boy he did not know who was about 13 or 14 years old. The driver of the "truck" had been fighting with Robert J. earlier, and also was the shooter, and Michael W. identified defendant as that person. About 10 to 15 minutes before the fight in front of the market, the "little guy" said "why you wearing all this blue" to the Asians, and this had made defendant mad.

K.C. testified he had school friends who were Bloods, but none of the group that day were Bloods and they were not wearing red, except for "Little Ricky," the 14-year-old. Earlier, Ricky "had said something to some dude in blue," around an hour before the fight, but K.C. testified the person in blue was Mexican. The Asians in the fight were wearing blue and "We all know they Crips." K.C. testified the driver of a car was the shooter, and K.C. was shot in the finger and thigh.

A parking officer heard shouting and saw a large group of people, mostly male Asians, arguing, and he followed a Honda that some Asians had entered. It parked, and he then saw two or three of the male occupants get into a Toyota 4Runner. They were wearing white T-shirts "with blue designs on them." He identified exhibits 23 and 24 as depicting that 4Runner. He followed it back to the SD Mart, then saw a hand with a gun come out of a window on the driver's side. After shots were fired, the 4Runner "took off."

An officer testified that Michael W. identified defendant as the driver and shooter, and identified exhibit 23 as depicting the vehicle used in the shooting. Another officer testified Robert J. also identified exhibit 23 as a picture of that vehicle, and also identified pictures of defendant and defendant's brother as people involved in the fight that preceded the shooting.

Aerial officers spotted the 4Runner behind a fence and under a patio cover, and saw a "male Asian wearing a white shirt and jeans" washing it. A man got in a Crown Victoria and drove off after placing something in the trunk. An officer on the ground saw two people through the fence and they appeared to be "wiping down a car like a gray SUV" and this officer identified defendant as one of those two people. A nine-millimeter gun was found in that house, as well as several kinds of ammunition, including Winchester .40-caliber bullets. That was the brand and caliber of the shell casings found at the scene of the shooting.

An officer who stopped the Crown Victoria testified defendant was the driver, and there was a Colt .45 magazine in the trunk and a Colt .45 pistol in the glove box.

Particles consistent with gunshot residue were found on defendant's hands and in the 4Runner.

An officer testified defendant had gang tattoos, including "Crip" and "PSB" which stood for "Polk Street Boys," "BK" which stood for "Blood Killer" and others. The screensaver on defendant's phone reads "Polk Street Boys."

Before the gang expert testified, the court held another hearing outside the jury's presence. Detective John Fan testified the Polk Street Boys is an Asian gang associated with the Crips that uses the color blue. It has about 20 members in Sacramento County. Defendant was validated as a member of that gang both in 2006 and again in 2009, after the shooting in this case. His brother Dach is an "associate of the Polk Street Boys." Robert J. "is a validated Valley Hi Piru which is a local Sacramento Blood set," as is "Ricky S[.]," "per his own statement." Bloods typically wear red. In answer to a hypothetical, Fan testified that if a person wearing red "made some kind of action, disrespectful action towards the person wearing the blue, I believe the person wearing the blue has to respond." On cross-examination, Fan testified he could not recall any crimes committed for the benefit of defendant's gang within the past three years (see Pen. Code, § 186.22, subds. (e) & (f) [defining a criminal street gang]), and the prosecutor stated this was why gang charges had been dropped. The court concluded Fan could testify as an expert.

Detective Fan then testified before the jury that for several years he had been "assigned to the gang suppression unit specializing in Asian gangs," and he stated his training and experience. He investigated the shooting in this case and determined it had "potential" gang connections. The Polk Street Boys was a "Crip set and they wear the color blue" and the Valley Hi Piru was "a Blood set" and Bloods wear red. Robert J. was validated as a member of the Valley Hi Piru as of February 2009, shortly before the shooting. Both K.C. and Ricky S. were "associates of Valley Hi Piru." Dach is a Polk Street Boys associate, and defendant is a Polk Street Boys member, validated in February 2005 and June 2009, after the shooting in this case. A gang member who is disrespected must respond or will be looked down on within the gang community, and his gang's reputation would suffer. On cross-examination, Fan testified there were no gang charges in this case because Polk Street Boys members had not committed qualifying gang offenses within the past three years.

The defense did not present any evidence.

In part, the trial court instructed the jury: "You have just heard evidence regarding gangs and the gang affiliation of the defendant. You are to consider that evidence only as it may pertain to the defendant's motive to commit the crimes charged. You may not use gang affiliation as evidence that the defendant has a bad character or is predisposed to commit crimes."

In part, the defense argued that because the members of the "victim" group were Blood-related, they blamed defendant for the shooting to get him into trouble.

The jury convicted defendant as charged.


Evidence Code section 1101, subdivision (a) generally bars the use of character evidence against a person "when offered to prove his or her conduct on a specified occasion." However, Evidence Code section 1101, subdivision (b) provides in part: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive . . . ) other than his or her disposition to commit such an act."

Generally speaking, "evidence of gang membership and activity is admissible if it is logically relevant to some material issue in the case, other than character evidence, is not more prejudicial than probative and is not cumulative. [Citation.] Consequently, gang evidence may be relevant to establish the defendant's motive, intent or some fact concerning the charged offenses other than criminal propensity as long as the probative value of the evidence outweighs its prejudicial effect." (People v. Albarran (2007) 149 Cal.App.4th 214, 223 (Albarran).)

"The admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial court's decision exceeds the bounds of reason." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369 (Olguin).)

"When an objection to evidence is raised under Evidence Code section 352, the trial court is required to weigh the evidence's probative value against the dangers of prejudice, confusion, and undue time consumption. Unless these dangers 'substantially outweigh' probative value, the objection must be overruled." (People v. Cudjo (1993) 6 Cal.4th 585, 609.)

Defendant relies in part on People v. Cardenas (1982) 31 Cal.3d 897, in which the plurality opinion held it was improper to admit gang evidence to show bias, where it was cumulative of other facts showing bias: "The probative value of the gang membership evidence was minimal at best. The evidence was offered to establish possible bias of the defense witnesses in favor of appellant. The prosecution sought to prove that the witnesses and appellant 'live[d] in the same neighborhood' and 'had the same circle of friends.' However, these facts had already been amply established by other testimony before the prosecutor began his inquiries into the witnesses' gang affiliations." (Id. at pp. 904-905.)

Here, the prosecution did not offer the gang evidence to show bias, as in Cardenas, but instead to show motive based on the animosity between the rival gangs. Thus, the gang evidence was neither cumulative of other evidence nor "tangentially relevant" (People v. Cox (1991) 53 Cal.3d 618, 660, disapproved on another point by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22), as defendant asserts.

"The People are entitled to 'introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent.' (People v. Funes (1994) 23 Cal.App.4th 1506, 1518.) '[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.'" (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550; see Olguin, supra, 31 Cal.App.4th at p. 1369; People v. Martin (1994) 23 Cal.App.4th 76, 81; People v. Maestas (1993) 20 Cal.App.4th 1482, 1497.) Based on the facts of this case and the applicable legal standards, the trial court did not abuse its discretion.

Defendant points out that his gang did not qualify as a criminal street gang, and no gang charges were presented to the jury. This circumstance does not add weight to the possible prejudice in the jury's collective mind from the gang evidence, nor does it diminish the inference that defendant, by virtue of his gang membership, had a motive to shoot at members or associates of a rival gang who had made disrespectful comments about defendant's gang.

Further, any error was harmless.

Defendant asserts the trial was fundamentally unfair and therefore the Chapman standard of prejudice applies. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705].) However, defendant concedes that "'[o]nly if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must "be of such quality as necessarily prevents a fair trial." [Citation.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.'" (Quoting Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920; see Albarran, supra, 149 Cal.App.4th at pp. 229-230.) That is not the case here, where the jury was instructed it could only use the gang evidence for motive, a legitimate purpose, and was told it could not use the evidence to show defendant's bad character or predisposition. "We must assume that the members of the jury were intelligent persons, and if they were they could not have misunderstood the instruction complained of." (People v. Powell (1960) 186 Cal.App.2d 54, 59.)

"Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error." (People v. Partida (2005) 37 Cal.4th 428, 439; see People v. Watson (1956) 46 Cal.2d 818, 836.) Several witnesses identified defendant as the shooter or testified the driver or someone on the driver's side of the 4Runner was the shooter. Defendant was found with gunshot residue on his hand, and he was seen trying to clean the 4Runner, in which more gunshot residue was found. Ammunition of the same type found at the scene of the shooting was found in defendant's house. Defendant mentions the lack of gunshot residue testing on the passenger side of the 4Runner, and questions the reliability of eyewitness testimony, but given the totality of the evidence produced at trial, it is not reasonably probable the verdict would have been different absent the gang evidence.


The judgment is affirmed.

We concur:

HULL , Acting P.J.



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