Contra Costa County Super. Ct. No. 050714766
The opinion of the court was delivered by: Rivera, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant Phong Bui appeals a judgment entered upon a jury verdict finding him guilty of attempted murder (Pen. Code,*fn2 §§ 187, 664, subd. (a)), mayhem (§ 203), first degree residential robbery (§§ 211, 212.5, subd. (a)), and first degree residential burglary (§§ 459, 460, subd. (a)). He contends on appeal that his conviction of attempted murder is not supported by substantial evidence, that the trial court committed instructional and sentencing error, and that he received ineffective assistance of counsel. We agree that the trial court committed sentencing error, and shall remand for resentencing. In all other respects, we shall affirm.
Billy Huynh and his wife Tammy Le lived in Bay Point with their son, William, and with Le's children, Thu and Mike Le.*fn3 At the time of the events in question, Mike was 17 years old, Thu 14, and William was a baby. Le kept large amounts of cash in a safe in the closet of her bedroom. Mike knew the safe contained cash.
At approximately 11:45 p.m. on November 13, 2005, while Le was in bed, two men came into her bedroom. Her baby, William, was also in the room. Le called for Huynh, who emerged from the bathroom, and the two men made them both lie down. The older of the two men had a knife, and the other, who was wearing a mask and appeared to be about Mike's age, was holding a gun.*fn4 At trial, Le identified the man with the gun as defendant, saying she recognized him by his eyes.
Defendant took the home phone and cell phone, and asked where the safe box was. Le said that the key to the safe was downstairs, and defendant brought Huynh downstairs. Before doing so, defendant went into other rooms. He pointed a gun at Thu, who was in her bedroom, told her to give him her phone, took the phone, and left the room. Thu then went into Le's bedroom. On the way, she noticed that Mike's bedroom window was wide open.*fn5 She also noticed that the gunman was wearing shoes identical to some Mike used to have.*fn6 Thu heard Huynh ask where Mike was, and the gunman "said something about if you see that window open, then you know with [sic] your son's at." Both men told Huynh that Mike was "okay."
Huynh hoped defendant would be satisfied with $200, which was kept under the kitchen sink. In the kitchen, however, defendant pointed the gun at Huynh, and Huynh tried to push the hand holding the gun away. The gun went off, and Huynh fell to the floor, face down, unable to move. As he lay on the floor, he heard at least two more shots. The time between the first shot and the later shots was "Very quick. Less than 10 [seconds]," and the second and third shots occurred in rapid succession.
The man with the knife kept Le, Thu, and William in Le's bedroom. Le heard four gunshots from downstairs. Thu testified to hearing two or three shots. The man with the knife ran out of Le's bedroom, saying "[W]hat the hell are you doing[?]," or "Why the hell did you shoot him?" Le ran downstairs and saw Huynh lying on the kitchen floor, "all bloody." Defendant and the other man ran away.
After police officers arrived, Huynh began to feel excruciating pain in his abdomen, and he passed out on the way to the hospital. He had four surgeries to treat his injuries, including surgery on the gunshot wounds to his arm and abdomen, and surgery to remove clots from his left leg.
Doctors who treated Huynh found a bullet entry wound in the elbow, and no exit wound. Among Huynh's injuries, the tip of his elbow was "in multiple pieces," "fractured to the point where it was just like grains of sand," and his distal humerus bone was fractured. Huynh suffered abdominal bleeding, resulting from an arterial injury.
Bullets were retrieved from Huynh's elbow and the small of his back. Huynh later saw a small round hole in his kitchen window.
B. Defendant's Statements to Detective
In an interview with a sheriff's detective, defendant admitted taking part in the robbery. He said Mike had told him and another man, Abe, that there was money in a safe in Mike's parents' room and that Mike planned the robbery. He said the pair had rung the doorbell without result. He entered the house through Mike's window, then opened the door for Abe. Abe then "took over." Defendant was downstairs, and went up only when Abe called to him to collect the cell phones. Abe checked the rooms, and defendant saw that Mike's sister was bald.*fn7 He heard gunshots. He said the robbery had "links" to an earlier marijuana robbery he had been involved in, because Mike owed money as a result of that incident.*fn8
C. Evidence of Prior Incident
Amy Le*fn9 testified that on October 5, 2005, someone approached her and a friend named David Li, pulled a gun, and told Li, "Drop down and give me your wallet." Amy Le identified defendant as the gunman in a photographic lineup.
Fragments of a bank card or credit card taken during that robbery were found in the side yard of Huynh and Le's home after Huynh was shot. Mike testified that he and defendant had stolen the card from someone in Oakland and used it, and that he had cut up the card and thrown it out the window.
Mike testified that he knew defendant.*fn10 Shortly before the incident at issue in this appeal, his mother found him putting marijuana into bags. He and defendant had stolen the marijuana from a house in Oakland, and he intended to sell it. Another friend, Abe, had told defendant and Mike the marijuana would be there. There were two people in the house from which they stole the marijuana. During the robbery, Mike was armed with a Taser, and defendant was armed with a loaded gun. They agreed to split the marijuana, with half going to the person who had told Abe about the marijuana, and the rest divided among Mike, Abe, and defendant. Abe, however, accused Mike ...