(Super. Ct. No. CRF08225)
The opinion of the court was delivered by: Mauro , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Pheng Kue was convicted of second degree murder, attempted murder, willful discharge of a firearm at an occupied motor vehicle, and active participation in a criminal street gang. Defendant contends on appeal that his conviction must be reversed due to instances of prosecutorial misconduct, including coaching a witness, breaching an agreement on the scope of a witness's testimony, displaying inadmissible photographs and misstating the record. Defendant also contends that his sentence for active participation in a criminal street gang must be stayed pursuant to the multiple punishment prohibition in Penal Code section 654.*fn1
We conclude that the prosecutor did not commit prejudicial misconduct. However, we agree that defendant's eight-month sentence for active participation in a criminal street gang must be stayed pursuant to section 654. In all other respects we will affirm the judgment.*fn2
On the afternoon of May 8, 2008, 29-year-old Raymond Castro was driving his brother, 17-year-old Ignacio Castro, to Lindhurst High School.*fn3 When Raymond stopped at a stoplight, the brothers noticed Thang Yang's vehicle behind them. Meng Thao and defendant were passengers in Thang's car. Ignacio had known Thang since kindergarten, and had been fighting with him since the eighth grade. Raymond turned onto Linda Avenue, stopped to see if Thang had followed them, and then handed Ignacio a flashlight for protection in case anything happened. Raymond continued driving toward the high school.
As Raymond approached the intersection of Fernwood and Oakwood Drive, the brothers saw Thang drive through the intersection. Raymond accelerated his car, ran the stop sign, turned the corner and followed two car lengths behind Thang's vehicle. Ignacio saw Meng lean out of the window of Thang's vehicle and point a gun at the brothers. Thang's vehicle slowed to about five miles per hour as it approached the first speed bump on Oakwood Drive, and Meng fired a shot at the brothers. Raymond slowed his vehicle, grabbed Ignacio and pushed him down. Thang's vehicle continued to slow down and Raymond began to make a U-turn to escape. Ignacio heard more gunshots. Raymond was wounded, and the brothers' car rolled to the curb.
Thomas Jackson and Michael Morris, who lived nearby, heard gunshots and observed Thang drive slowly over the speed bumps on Oakwood Drive. Thomas saw a man with a gun leaning out of the front passenger window from the back seat. Another person was sitting in the front passenger seat. Michael heard four more shots and saw Raymond's vehicle come to a stop against the curb. Thomas saw Thang's vehicle speed away and make an abrupt turn onto Cobblestone Drive. Thomas and Michael saw Ignacio outside of Raymond's car, and he did not have anything in his hands. Thomas ran to the brothers' car, observed that Raymond had a bullet wound to his head, and quickly searched the vehicle for weapons but did not find any. Michael phoned 9-1-1 for assistance, but Raymond died from a gunshot wound to the right side of his head.
Deputy Willy Kardatzke was dispatched to the shooting scene. Ignacio did not have a gun and Deputy Kardatzke did not find one in the vicinity of Raymond's vehicle.
Deputy Kardatzke took Ignacio to an address on Country Club Court where a witness, Linda Viana, had observed four Asian males get out of Thang's vehicle. Other law enforcement officers at Country Club Court discovered Thang's car covered by a tarp and found that the hood was still warm to the touch. Ignacio identified Thang's vehicle as the one involved in the shooting. He also identified Thang as the driver, Meng as the one who leaned out the window and shot at them, and defendant as a passenger.
Detective Felion, who investigated the shooting and processed the scene, found shattered glass near the first speed bump, 5 nine-millimeter shell casings between the two speed bumps, and another nine-millimeter casing near the intersection of Oakwood and Cobblestone Drive. He did not find any guns or shell casings in or around Raymond's vehicle, but did find a flashlight inside. In Thang's vehicle, Detective Felion found a nine-millimeter shell casing in the front passenger seat, a bullet hole in the rear window frame, and a piece of copper jacket in the trunk.
A criminalist concluded that a bullet in the trunk of Thang's vehicle traveled from the front to the back of the vehicle, entered the edge of the rear window frame, shattered the rear window, and landed in the trunk. The criminalist determined that the six shell casings found at the scene and the one found in Thang's trunk were all fired from the same gun.
Sergeant Allen Garza interviewed defendant about the shooting and permitted him to use his cellular phone to call his sister. Defendant told his sister he had admitted being in Thang's car and shooting the gun. He believed he had shot one of the occupants of Raymond's vehicle. Defendant told his sister to tell their brother to get rid of the gun. When officers searched defendant's brother's apartment four days later, they found an empty gun case.
Sergeant Garza testified as a gang expert. He was familiar with the Hmong National Society (HNS), had talked to its members about their gang-related activities, and had reviewed law enforcement reports on HNS gang-related offenses. Sergeant Garza opined that defendant, and co-defendants Thang and Meng, belonged to HNS based on the 10 criteria used to determine if someone is a validated member of a gang. Defendant met six of the ten criteria, one of which was having a tattoo of "HNS" on his arm. A search of his residence revealed a plastic tub of his clothes, on which was written "HNS" and "Blood 475," references associated with the HNS gang. Most members of HNS are related and defendant's brothers and cousin were self-admitted HNS members. In addition, at the time law enforcement contacted defendant, he was with other HNS gang members.
Sergeant Garza explained that respect is very important in gang culture and that members may feel disrespected if a rival gang is in their territory, if they are glanced at or stared at, or if another gang shows their hand signs. Disrespect typically results in some type of violence. Gang members gain respect by committing violent crimes. The crimes benefit the gang because information about the violent conduct spreads to the community, thereby enhancing the gang's reputation by instilling fear in rival gangs, witnesses, victims and the public in general. Given a hypothetical based on the facts of the current case, Sergeant Garza opined that defendant, Thang, and Meng enhanced HNS's reputation by committing the current crime.
Defendant and his co-defendants attempted to establish at trial that they acted in self-defense, or in the honest but unreasonable belief in the need for self-defense. Thang testified that two months prior to the shooting, Thang, his brother Kee, a cousin, and two friends were at Wal-Mart at the same time as Raymond, Ignacio, and their brother Jose. One of Thang's friends and Ignacio began fighting and, when Thang attempted to separate them, Raymond hit Thang in the head. A brawl ensued, a store clerk intervened, and then both groups went outside. In the parking lot, Raymond told Thang's group that he was going to kill them. Thereafter, Raymond drove his vehicle by Thang's house on several occasions and looked at Thang menacingly. Thang was afraid because he had heard that Raymond, whose street name was Demon, had been paroled recently from prison.
According to Sergeant Garza, Raymond had been arrested for possession of a handgun, and had also been accused of assaulting his wife with a deadly weapon (a vehicle). Raymond had various Norteno gang-related tattoos, but claimed to have dropped out of the gang and was not an established active member at the time of the shooting.
Thang stated that one month prior to the shooting, Raymond, Ignacio, and two other men confronted Thang's brother, Kee, and "roadblocked" his car with theirs as Kee was leaving school. They were armed with a screwdriver, baseball bat and a flashlight, and Raymond told Kee he was going to kill him. One of the men appeared to flash a gang sign. Kee drove up on the sidewalk to get away. When Thang learned of the incident, he became frightened and thought Raymond was "coming for us."
The day before the shooting, Thang and Meng were involved in a fight with the Castro brothers' cousin. Meng pulled out a gun and yelled "HNS." When Thang saw Raymond and Ignacio following them the next day, he was afraid that the Castro brothers were going to retaliate for the Wal-Mart incident and the fight with their cousin. Thang thought that Raymond was going to kill them, pointed out the brothers to defendant and Meng, and told them there might be trouble. However, when Thang was interviewed by detectives after the shooting, he did not tell them about the incident at Wal-Mart or any of Raymond's prior threatening behavior.
Defendant testified he was in the front passenger seat of Thang's car on the day of the shooting, and that Meng was in the backseat. Thang stopped at a stoplight directly behind Raymond's vehicle. Defendant saw the Castro brothers again near the intersection of Fernwood and Oakwood Drives. After Thang passed through the intersection, Raymond ran the stop sign and sped toward Thang's car. Defendant was afraid because Thang had told defendant about the fight Thang had with the Castros, that the brothers had driven by Thang's house, and that Raymond was a Norteno gang member who carried a weapon. While Raymond's car was still behind Thang's vehicle, someone told defendant to shoot at Raymond's car. Defendant saw Ignacio reaching for something and he thought it was a gun. Defendant was afraid he was going to be killed in a drive-by shooting, grabbed a gun from somewhere in the car, shot it one time, and shattered the back window of Thang's car. He wanted to scare Raymond away so that Raymond would stop chasing them.
A jury found defendant guilty of second degree murder, attempted murder, willful discharge of a firearm at an occupied motor vehicle, and active participation in a criminal street gang. The jury found the first three crimes were committed for the benefit of a criminal street gang, and found true all but one of the charged firearm enhancements. It also found that although defendant was only 14 years old, he was a fit subject for adult adjudication. The court sentenced defendant to a determinate term of 37 years, eight months, and an indeterminate term of 40 years to life, in state prison.