Ct.App. 4/3 G036560 Orange County Super. Ct. No. 01WF0544
The opinion of the court was delivered by: Werdegar, J.
Filed 6/13/11 reposted to correct file date and signature spelling (no change to opn. text)
The California Street Terrorism Enforcement and Prevention Act (the STEP Act; Pen. Code, § 186.20 et seq.)*fn1 criminalizes active participation in a criminal street gang (§ 186.22, subd. (a)). A criminal street gang is any ongoing association that has as one of its primary activities the commission of certain criminal offenses and engages through its members in a "pattern of criminal gang activity." (§ 186.22, subd. (f); see People v. Loeun (1997) 17 Cal.4th 1, 4.) A pattern of criminal gang activity is "the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more" specified criminal offenses within a certain time frame, "on separate occasions, or by two or more persons" (the "predicate offenses"). (§ 186.22, subd. (e); see Loeun, at p. 4.) We hold that a predicate offense may be established by evidence of an offense the defendant committed on a separate occasion. Further, that the prosecution may have the ability to develop evidence of predicate offenses committed by other gang members does not require exclusion of evidence of a defendant's own separate offense to show a pattern of criminal gang activity.
On May 6, 1997, Duc Vuong, a member of OPB (Oriental Play Boys), a criminal street gang, was accosted at a gas station by members of the rival criminal street gang VFL (Vietnamese for Life). The VFL members fled when Vuong fired a warning shot at their car. Later that day, three armed and masked men chased Vuong through his apartment complex, shooting at him and wounding him in the shoulder. A short time later, two masked men fired shots at 18-year-old Lon Bui as he was crossing the street to the apartment complex, killing him. Bui was not a member of any gang.
Qui Ly, a member of V (Vietnamese Boys), a gang affiliated with VFL, testified about the attacks. He stated defendant Quang Minh Tran was a "shot-caller" for VFL. Defendant called Ly a few hours after Vuong fired the warning shot, telling Ly he needed guns to retaliate against OPB for the disrespect Vuong had shown VFL. Ly brought two guns to a meeting with defendant and several other V and VFL members. Defendant armed himself with a TEC-9 automatic weapon, choosing it for himself because it tended to jam after a round was fired and he knew how to clear it. They drove to Vuong's apartment complex, where Ly, defendant and "Uncle Dave," another VFL member, donned masks and went to look for Vuong. They found him attempting to retrieve something from the trunk of his car. All three men began shooting at Vuong, who ran to his apartment, chased by defendant and his companions. Someone inside the apartment opened the door, kicking it closed after Vuong ran inside. One of the men chasing Vuong kicked the door open, fired several shots into the apartment, and ran off. Vuong's only injury was a bullet graze to his shoulder. Defendant and Ly ran to the front gate of the apartment complex where they saw Bui. Defendant said, "That's him, that's him, that's Play Boy," apparently believing Bui was a member of OPB. Defendant then crouched, took aim, and shot Bui in the back as Bui attempted to run away. When defendant later learned the man he killed was not an OPB member, he responded, "Fuck it, like oh well."
Other evidence also linked defendant to the attacks on Vuong and Bui. Hanh Dam, a V member, testified that a few days after Bui's murder, defendant warned him to be careful if he saw any OBP members, telling Dam about the incident at the gas station, explaining that defendant had learned where Vuong lived, and telling Dam "they" had shot at Vuong and killed Vuong's friend. The bullet that killed Bui was consistent with a bullet fired from a TEC-9, and was of the same make as several live rounds recovered from the apartment complex that could have been ejected from a TEC-9 if the weapon had jammed or misfired. A witness who heard shooting saw several men run out of the complex and jump into cars. One of the cars, a burgundy four-door Acura with tinted windows and shiny chrome wheels, met the description of the car defendant drove at that time.
Officer Ronnie Echevarria, a police expert on criminal street gangs, was familiar with VFL, V and OBP, and with the members of each gang. Echevarria testified he knew defendant and knew that on May 6, 1997, defendant was an active participant in VFL, a gang that engaged in extortion, prostitution, robberies, and burglaries as its primary activities. Echevarria was also familiar with gang culture. He stated that respect is of paramount importance to gangs, and that gang members will shoot members of a rival gang to enhance the reputation of their own gang, to benefit their gang's recruitment processes, and to send the message that gang members will react violently to acts of disrespect committed against the gang.
To establish the predicate offenses required to show a pattern of criminal gang activity, Echevarria testified about Noel Jesse Mata, a VFL member who in 1996 shot three men he believed to be members of OPB to retaliate for the 1992 death of another VFL member. Over defendant's objection, Echevarria also testified about a series of extortions defendant and several other VFL members had undertaken in 1993 and 1994 against Vietnamese businesses. Echevarria stated that VFL members had fired shots into some businesses and had made threats against others. Defendant, defendant's brother, and another VFL member had been arrested and prosecuted as the result of a "sting" in which a cooperating business owner paid protection money to defendant. The prosecution also provided the jury with certified copies of court records establishing that Mata had been convicted of offenses arising from the 1996 shootings, and that defendant, on a plea of guilty, had suffered a conviction resulting from a 1994 extortion.*fn2
Defendant was convicted, following a jury trial, of first degree murder (§ 187, subd. (a)), attempted premeditated murder (§§ 187, subd. (a), 664), and active participation in a criminal street gang (§ 186.22, subd. (a)). The jury also found defendant had personally used a firearm in the commission of a felony or attempted felony (§ 12022.5, subd. (a)) and had committed the murder and the attempted murder for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)). The trial court sentenced defendant to a term of 25 years to life for murder and a consecutive term of life for attempted murder, adding a 10-year enhancement to each term for the use of a gun and a three-year enhancement to each term for the gang enhancement. It imposed an additional consecutive term of three years for active participation in a criminal street gang. The Court of Appeal modified the judgment to stay the three-year term imposed for active gang participation and affirmed the judgment as modified.
We have not directly considered whether a defendant's offense on a separate occasion might qualify as a predicate offense to establish a "pattern of criminal gang activity" under the STEP Act. In People v. Gardeley (1996) 14 Cal.4th 605, 625, however, we held a predicate offense may be established by evidence of the charged offense (see People v. Loeun, supra, 17 Cal.4th at p. 9). We thus found a predicate offense can be established by proof of an offense committed by the defendant. That the STEP Act allows a predicate offense to be established by proof of an offense the defendant committed on a separate occasion is implicit in that finding. We explicitly so hold here.
Defendant contends that even if the STEP Act allows a predicate offense to be established by evidence of a defendant's offense on a separate occasion, the inherent prejudice in such evidence generally requires its exclusion under Evidence Code section 352, which provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission ...