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The People v. Lee Tou Xiong

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yuba)


February 2, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
LEE TOU XIONG, DEFENDANT AND APPELLANT. THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ABRAHAM XA HER, DEFENDANT AND APPELLANT.

(Super. Ct. No. CRF10340)

The opinion of the court was delivered by: Robie , J.

P. v. Xiong

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. CRF10340)

Defendant Abraham Xa Her stole a gas can, then was stopped while driving a van that contained four recently stolen tires and rims. His brother-in-law, defendant Lee Tou Xiong, was a passenger in the van at the time of the stop. Both defendants had previously been identified as members of a criminal street gang. The trial court convicted both defendants of receiving the stolen tires and rims, with a criminal street gang enhancement, and of actively participating in a criminal street gang. (The court also convicted Her of the petty theft of the gas can.)

On appeal, we agree with Xiong that his convictions are not supported by substantial evidence and must be reversed. As we will explain, the only evidence before the court was that Xiong was found riding in a van driven by his brother-in-law and fellow gang member in which tires and rims that had been stolen within the previous day were also found. This was not enough to prove that Xiong possessed the stolen property along with Her. Because there was insufficient evidence that Xiong assisted Her in his felony possession of the stolen tires and rims, there was also insufficient evidence to sustain Xiong's conviction of actively participating in a criminal street gang, which was premised on defendants' alleged joint receipt of the stolen tires and rims.

We also agree with Her that: (1) because there was insufficient evidence of the joint commission of the receipt of stolen property offense, the gang enhancement on his conviction of receiving stolen property must be reversed; and (2) because there was insufficient evidence that he was an active participant in a criminal street gang at or reasonably near the time he received the stolen tires and rims, his conviction of actively participating in a criminal street gang must also be reversed.

FACTUAL AND PROCEDURAL BACKGROUND

On the morning of July 20, 2010, someone reported finding a Honda Accord behind a packing plant in the Linda area of Yuba County. At approximately 7:38 a.m., California Highway Patrol Officer Anthony Howard arrived on the scene. He found that the car had no tires on it and the stereo was missing. Officer Howard did not recall checking to see whether the hood was warm.

The car was registered to Hannah Rehnborg, who lived in Yuba City, about eight to 10 miles away from where the car was found. When he arrived on the scene, Officer Howard already knew that the reporting party had called in the license plate number of the car "and it had come back as not stolen at that time." Officer Howard asked the Yuba City Police Department to try to contact Rehnborg to see if the vehicle had been stolen or if she knew where it was.

Between 8:00 and 9:00 a.m. that morning, Rehnborg was awakened by her father-in-law, who told her the police were there because her car had been stolen. At trial Rehnborg testified on direct examination that she had probably last seen the car around 9:00 or 10:00 p.m. the night before. On cross-examination, however, she admitted she was not sure when she last saw it because she was not sure if she had worked the night of July 19. If she had worked on July 19, then she would have driven the car home and probably would have arrived at or after 10:00 p.m. If she had not worked, then she probably would not have gone anywhere because she was seven months pregnant. She would have left the house at some point on July 19, but she could not say when. Ultimately, she admitted the car "could have been stolen at any point in time" on July 19.

Meanwhile, sometime before 9:40 a.m. on July 20, Gregory Vyka saw someone taking a gas can from his next door neighbor's house on Griffith Avenue in Linda, which is two or three miles away from the packing plant where the stolen Honda was found earlier that morning. Apparently, the culprit drove off in a white Toyota van. Vyka did not know which way the van went, but he "took a stab" and "did some driving around" and ended up locating the van. At that point, he called the police and provided a description of the van, the license number, and the direction of travel and location, which was on Dunning Avenue near Linda Avenue.

At approximately 9:40 a.m., Yuba County Sheriff's Deputy Karen Howard responded to a dispatch call regarding the van. She went to where the van was last seen and at some point made a traffic stop of the vehicle. Her was driving the van; Xiong was a passenger. The location where Deputy Howard stopped the van is approximately two miles from where the gas can was stolen. Upon searching the van, Deputy Howard discovered four gas cans behind the passenger and driver's seats and four tires on rims in the back of the van. Her admitted to Deputy Howard that he took the gas can.

Deputy Howard apparently reported the recovery of the tires and rims, and Officer Howard contacted Rehnborg about them. Deputy Howard took the tires and rims to a substation, where Rehnborg identified them as hers.

Both Her and Xiong had previously been identified as members of the Menace Boyz Crew (Menace Boyz), an active criminal street gang. They are also brothers-in-law.

Her and Xiong were both charged with receiving stolen property (the tires and rims), actively participating in a criminal street gang, and unlawfully taking or driving a vehicle. Her was also charged with the petty theft of the gas can. The information alleged as a sentencing enhancement that the offenses of receiving stolen property and unlawfully taking or driving a vehicle were committed for the benefit of, at the direction of, or in association with a criminal gang.

Both defendants and the prosecution waived a jury trial, and the case was tried to the court in December 2010. The court found both defendants guilty of receiving stolen property and actively participating in a criminal street gang. The court also found Her guilty of petty theft and found the gang enhancement allegation on the receiving charge true as to both defendants. The court, however, acquitted both defendants of the charge of unlawfully taking or driving a vehicle.

The court sentenced Xiong to an aggregate prison term of six years and eight months, consisting of the upper term of three years on the receiving conviction with the middle term of three years for the gang enhancement on that charge, plus a consecutive eight-month term for the gang offense. The court sentenced Her to an aggregate prison term of seven years and eight months, consisting of the upper term of three years on the receiving conviction with the upper term of four years for the gang enhancement on that charge, plus a consecutive eight-month term for the gang offense and a concurrent one-year term for the petty theft. Both defendants timely appealed.

DISCUSSION

I

Xiong's Conviction Of Receiving Stolen Property

Xiong contends that "[w]hile Her certainly illegally possessed [the stolen] rims, nothing showed that [Xiong] likewise possessed the stolen property." We agree. Accordingly, Xiong's conviction for receiving stolen property must be reversed.

"[T]o sustain a conviction for receiving stolen property, the prosecution must prove (1) the property was stolen; (2) the defendant knew the property was stolen; and, (3) the defendant had possession of the stolen property. [Citations.] [¶] Possession of the stolen property may be actual or constructive and need not be exclusive. [Citations.] Physical possession is also not a requirement. It is sufficient if the defendant acquires a measure of control or dominion over the stolen property. [Citations] [¶] However, . . . mere presence near the stolen property, or access to the location where the stolen property is found is not sufficient evidence of possession, standing alone, to sustain a conviction for receiving stolen property." (People v. Land (1994) 30 Cal.App.4th 220, 223-224, fn. omitted.)

At least two California cases (both cited in Land) have addressed whether a passenger in an automobile had possession of stolen property found in the vehicle. (See People v. Land, supra, 30 Cal.App.4th at p. 224.) Those cases guide us here.

In People v. Zyduck (1969) 270 Cal.App.2d 334, "One Barrett, a timber faller, owned a chain saw. He used the saw December 14. He saw it in his pickup truck, parked in front of his home in Eureka, on the morning of December 15 'sometime before noon, but specific time I wouldn't know.' He gave no one permission to take it. On December 16, shortly after 5 o'clock a.m., police stopped an automobile near Fortuna, some 22 miles from Eureka. The stopped car was owned and driven by one Greaseback. Defendant was a passenger in the front seat. On the rear seat was Barrett's chain saw. Upon this evidence, . . . the jury found defendant guilty" of receiving stolen property. (Id. at p. 335.)

On appeal, the People argued that the defendant's "mere presence in a car owned and driven by another, in which the stolen property is readily visible, is enough to show possession." (People v. Zyduck, supra, 270 Cal.App.2d at p. 335.) The appellate court disagreed, explaining as follows: "Presence in the passenger seat is not enough to show possession of a stolen automobile [citations]. Opportunity of access to a place where contraband is stored is not enough, by itself, to establish possession [citation]. Dominion and control are essentials of possession, and they cannot be inferred from mere presence or access. Something more must be shown to support inferring of these elements. Of course, the necessary additional circumstances may, in some fact contexts, be rather slight. [Citations.] It is clear, however, that some additional fact is essential. We find none here. [¶] . . . [¶] In an area where logging is a major industry, the mere presence of a chain saw in an automobile can hardly indicate to a mere guest or hitchhiker that it is stolen. The car was stopped at least 17 hours after the theft of the saw, and only 22 miles from the point of theft, thus giving no reason to infer current flight to make good a theft. There is no evidence of any furtive act, attempt to flee, false explanation, or implicating statement by defendant." (Id. at pp. 335-336.) Accordingly, the court reversed the conviction. (Id. at p. 336.)

In People v. Myles (1975) 50 Cal.App.3d 423, within less than three hours after a burglary in which two television sets were taken, a police officer "observed [Myles] and another man named Dozier at 4515 So. Vermont in a 1965 Ford, subsequently shown to belong to Dozier. [Myles] was the passenger and Dozier was driving. [Myles] and Dozier got out of the vehicle and opened the trunk. They looked inside the trunk, along with some other people from a garage at that location. Officer Barker observed two television sets in the trunk. [Myles] or Dozier then closed the trunk. [Myles] re-entered the vehicle on the passenger side; Dozier re-entered on the driver's side and drove away. [¶] Officer Barker stopped the Dozier vehicle at 47th and Vermont. He approached the passenger side of the vehicle and asked [Myles] his name. Officer Barker examined the televisions in the trunk, then 'questioned the defendant and the other party in the vehicle, as to the ownership, brand names, serial numbers of the televisions. . . . They couldn't give me the brand names or ownership of the televisions. They were taken to Southwest Station for further investigation.' The televisions were subsequently identified by the victim . . . ." (Id. at pp. 426-427, fn. omitted.)

On appeal, in defense of the conviction of Myles for receiving stolen property, the People "relie[d] upon the well-established principle that the possession of stolen property, accompanied by no explanation or unsatisfactory explanation, or by suspicious circumstances, will justify an inference that the goods were received with knowledge that they had been stolen. Corroboration need only be slight and may be furnished by conduct of the defendant tending to show his guilt." (People v. Myles, supra, 50 Cal.App.3d at p. 428.) The appellate court concluded that principle was "inapplicable . . . , however, because [Myles] was not shown to be in possession of the television sets in the trunk of Dozier's automobile." (Ibid.) Noting the "strikingly similar[ity]" to Zyduck, the court observed that "[m]ere access or proximity to stolen goods is not sufficient to infer possession; dominion and control must be shown." (Id. at p. 429.) Accordingly, the court reversed the conviction. (Id. at p. 432.)

Here, in finding Xiong guilty of receiving the stolen tires and rims, the trial court reasoned as follows: "It is clear . . . that Deputy Howard had immediately been dispatched to the Dunning Avenue area in response to a call from Yuba County Sheriff's Office dispatch reported the alleged gas can crime. Defendant Xiong was located in the passenger seat when she initiated a stop on the vehicle. [¶] At the time Deputy Howard located the tires and rims the victim was not yet aware that her vehicle had been stolen or stripped of tires, rims, or stereo.[*fn1 ] None of the items found in the vehicle had been concealed. The record reflects that defendant Her had a familial relationship to defendant Xiong, as they were brothers-in-law. . . . [E]ach was also a validated [Menace Boyz] gang member. Unlike Zyduck, supra, the Court can infer that Xiong was neither a hitchhiker nor merely an acquaintance or guest. The Court concludes that based upon the record, defendant did, in fact, have knowledge of the stolen nature of the property and that defendant Xiong jointly possessed the tires and rims with defendant Her. In arriving at this conclusion, the Court has considered the totality of the circumstances, including the possession of recently stolen property."

As the Zyduck court explained, while "[k]nowledge of the stolen character of property may, in some circumstances, be inferred from failure of the possessor to explain his possession," "it is 'conscious possession' which permits this inference," and "[p]ossession must be established before the inference of guilty knowledge can be drawn." (People v. Zyduck, supra, 270 Cal.App.2d at p. 335.) Thus, the predicate question is possession. Unfortunately, the trial court here did not explain exactly what evidence it was relying on to conclude that Xiong "jointly possessed the tires and rims with defendant Her." Whatever the court was relying on, however, it was insufficient.

The People contend that on the evidence here "it was reasonable for the court to infer that [Xiong] was present in Her's car not only when Her stole the gas can but also when the tires and rims from Rehnborg's stolen Honda were placed inside Her's car." In support of this argument, the People rely on the following characterization of the facts: "Her had just stolen the gas can, shortly before being stopped and detained by Deputy Howard, and Ms. Rehnborg was not yet even aware at that time that her Honda had been stolen, stripped and found by the police. All of those events happened within fairly close proximity to each other. [Xiong] was not only related to Her by marriage but was also a member of the same criminal street gang."

We are not persuaded. First of all, there was sparse, if any, evidence from which the trial court could have concluded beyond a reasonable doubt that Xiong was in the van when Her stole the gas can. While the evidence showed that the location where Deputy Howard stopped the van is approximately two miles from where the gas can was stolen, there was no evidence fixing the theft and the vehicle stop in temporal relation to each other. The evidence showed that Deputy Howard responded to the dispatch call about the gas can theft at approximately 9:40 a.m., which means the theft occurred sometime before then, but the evidence did not show at what time before 9:40 a.m. Vyka witnessed the theft, how much time he spent driving around until he spotted the van again, or how much time elapsed between the time that Deputy Howard responded to the dispatch call and the time she located the van and stopped it. Given all of these gaps in the evidence, there was no way for the trial court to determine, beyond a reasonable doubt, that Xiong must have been in the van when Her stole the gas can, rather than getting in the van sometime after the theft.

Even if we were to assume, however, that the trial court reasonably could have found that Xiong was in the van when Her stole the gas can, that fact would not support the court's finding that Xiong jointly possessed the stolen tires and rims with Her. Under the People's reasoning, the inference that Xiong was in the van when Her stole the gas can supports the further inference that he was also in the van "when the tires and rims from Rehnborg's stolen Honda were placed inside Her's car." But that reasoning is not sound. As the court itself acknowledged, because Rehnborg admitted her car could have been stolen any time on July 19, the court could "only speculate as to the period of time that elapsed from the theft of the vehicle until it was located behind [the] packing plant." In addition, however, there was no evidence on which the court could determine exactly when the wheels were removed from the vehicle and placed in the van Her was later found driving. Thus, even if the court could have determined that Xiong was in the van when Her stole the gas can on the morning of July 20, there was no evidentiary basis on which the court could have found beyond a reasonable doubt that Xiong was also in the van whenever it was that the stolen tires and rims were placed there some time earlier.

Finally, even if the court could have found Xiong was in the van when the stolen tires and rims were placed there, that still would not support a finding beyond a reasonable doubt that Xiong jointly possessed that stolen property along with Her, as there was no evidence of the circumstances in which the tires and rims came to be in the van. On the evidence before the court, it was possible that Her could have been driving his brother-in-law Xiong to the store and, without Xiong's consent or prior knowledge, Her stopped and picked up the stolen tires and rims from someone. Under the authorities discussed above, the mere fact that Xiong was in the van with the wheels and rims is not enough to establish that he possessed those items, and yet that was essentially all the evidence the People produced here.*fn2 That Xiong was related to Her and also was (or had been) in the same criminal street gang as Her does not, without more, support a finding beyond a reasonable doubt that Xiong jointly possessed the stolen property found in the van Her was driving. There was no evidence the gang to which defendants belonged specialized in trafficking in stolen car parts, or even more generally, in stolen property. Essentially, the only evidence before the court was that Xiong was found riding in a van driven by his brother-in-law and fellow gang member in which property that had been stolen within the previous day was also found. Without more, this evidence was not sufficient to support a finding beyond a reasonable doubt that Xiong was in joint possession of the stolen property along with Her. Accordingly, Xiong's conviction of receiving stolen property must be reversed.*fn3 Of course, the gang enhancement on that conviction falls with the conviction.

II

The Gang Enhancement On Her's Conviction

Of Receiving Stolen Property

As Her recognizes, our conclusion that there was insufficient evidence to find Xiong guilty of receiving the stolen tires and rims has significant consequences for both defendants. We begin with the consequence for the gang enhancement on Her's conviction of receiving stolen property.

The criminal street gang sentence enhancement provides an additional term of imprisonment for "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (Pen. Code, § 186.22, subd. (b)(1).)

Here, the People's gang expert (Yuba County Sheriff's Sergeant Allan Garza) testified to his opinion that the "alleged crimes were committed in association with other gang members" because Her and Xiong were both active members of Menace Boyz and were together when the crimes were committed. The trial court specifically relied on this testimony in finding that the gang enhancement allegation on the charge of receiving stolen property was true, noting that "when two gang members commit a crime together, they are assisting each other."

While Her does not challenge his conviction of receiving the stolen tires and rims, he argues that "without substantial evidence of another gang member having participated in this crime, the People are left with nothing that could conceivably constitute substantial evidence that the crime met the . . . requirement of the enhancement" that it was "committed . . . in association with a[] criminal street gang." We agree.

In defending the gang enhancement for Her as to the receiving stolen property charge, the People cite People v. Morales (2003) 112 Cal.App.4th 1176 for the proposition "that the 'requisite association' c[an] reasonably be inferred from the fact that a gang member committed the charged crime 'in association with fellow gang members,'" and the People rely on the fact that Her "was found to have committed the crime [of receiving stolen property] in association with co-defendant Xiong, who was another member of his gang." But the People make no attempt to identify any substantial evidence that would support the gang enhancement if Xiong did not possess the stolen tires and rims along with Her. In the absence of any such evidence, and in light of the fact that we have found the evidence insufficient to support Xiong's conviction of receiving the stolen property, we must conclude that there was insufficient evidence to support the true finding on the gang enhancement on Her's conviction of receiving stolen property. Thus, that enhancement must be reversed.

III

Xiong's Conviction Of Active Participation

In A Criminal Street Gang

To be guilty of the substantive gang offense of active participation in a criminal street gang, the defendant must have "actively participate[d] in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity" and must have "willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of that gang." (Pen. Code, § 186.22, subd. (a).) Here, the trial court found that the ultimate element of the gang crime was satisfied because Her and Xiong "willfully assisted each other, both gang members, in criminal conduct involving a felony violation of Penal Code section 496." We have concluded, however, that there was insufficient evidence that Xiong possessed the stolen property and therefore insufficient evidence that he was guilty of the crime of receiving stolen property. It follows, therefore, that there was insufficient evidence that Xiong assisted Her in his felony possession of the stolen tires and rims. Accordingly, Xiong's conviction of the gang offense must be reversed.*fn4

IV

Her's Conviction Of Active Participation

In A Criminal Street Gang

Her contends that his conviction of active participation in a criminal street gang must be reversed either: (1) because there was no substantial evidence that he was an active participant in Menace Boyz when he received the stolen tires and rims,*fn5 or (2) because the substantive gang crime "should be held not to apply to a situation where a person -- whatever his alleged gang ties may be -- commits a crime by himself." Because we agree on the first point, we do not reach the second.*fn6

"[M]embership alone in a gang is not sufficient to satisfy the requirement of active participation." (People v. Garcia (2007) 153 Cal.App.4th 1499, 1509.) "[A] person 'actively participates in any criminal street gang,' within the meaning of section 186.22(a), by 'involvement with a criminal street gang that is more than nominal or passive.'" (People v. Castenada (2000) 23 Cal.4th 743, 752.) "It is not enough that a defendant have actively participated in a criminal street gang at any point in time, however. A defendant's active participation must be shown at or reasonably near the time of the crime." (Garcia, at p. 1509.)

Thus, the question here is this: What evidence was there that Her was an active participant -- rather than just a member -- of Menace Boyz at or reasonably near the time he received the stolen tires and rims? The evidence on which the People rely is the testimony of Sergeant Garza, who offered his opinion that Her was an "active member" of Menace Boyz. Sergeant Garza based his opinion "on previous contacts . . . with [Her] and looking at other criminal reports, gang validations and gang registrations where he's required to register as a gang member." More specifically, Sergeant Garza relied on a gang registration form from October 2006 to help form his "opinion as to whether or not Mr. Her was a member of [Menace Boyz]." That form, which Her signed, showed that he had been a member of Menace Boyz for seven years. Sergeant Garza also relied on "some cases that [he was] familiar with" to help form his opinion as to Her. Specifically, Sergeant Garza testified that when Her "was contacted during this investigation and arrested" on July 20, 2010, "he was wearing a blue-colored shirt, which blue is the common color that [Menace Boyz] gang members use in our area to identify themselves." He also noted that Her was "arrested with another gang member" -- i.e., Xiong. Sergeant Garza also testified that when Her was arrested in May 2007 for being in possession of a loaded firearm, he was in the company of other validated members of Menace Boyz. On an earlier occasion in July 2006, during an interview in connection with a drive-by shooting, Her admitted that he was a Menace Boyz gang member and demonstrated that he was familiar with a member of a rival gang. Sergeant Garza also testified that in December 2000 Her was in the company of a validated Menace Boyz gang member when he was detained by law enforcement. Finally, Sergeant Garza expressed the opinion that Her and Xiong committed the crime of receiving stolen property "in association with other gang members" because "they were together when these crimes were committed."

Even if we treat Sergeant Garza's opinion that Her was an "active member" of Menace Boyz as the equivalent of an opinion that Her was an active participant in the gang -- as required to establish the substantive gang offense -- we conclude that Sergeant Garza's opinion does not constitute substantial evidence to support Her's conviction of that offense. "'Like a house built on sand, [an] expert's opinion is no better than the facts on which it is based.'" (People v. Gardeley (1996) 14 Cal.4th 605, 618.) Here, virtually nothing about the circumstances of Her's present crime tended to support a reasonable conclusion that he was actively participating in Menace Boyz at the time. Only two things tended to connect his possession of the stolen tires and rims with his membership in Menace Boyz: (1) the fact that he was wearing a blue shirt when he was arrested on July 20, 2010; and (2) the fact that he was found in the company of Xiong, who was also a member of Menace Boyz. We have concluded already, however, that there was no substantial evidence Xiong participated in the crime with Her. Thus, it cannot be said that Her was committing the crime along with a fellow gang member. The most that can be said is that when Her was found in possession of the stolen property, he was in the company of a fellow gang member, and he was wearing a blue shirt.

Like the evidence of the present crime, the evidence of the past encounters with Her had little tendency to prove he was an active participant in Menace Boyz when he was found in possession of the stolen tires and rims. That Her admitted he was a member of Menace Boyz in 2006 does not tend to establish that he was actively participating in that gang four years later. Similarly, that Her was detained and arrested in the company of other Menace Boyz members in 2000 and 2007 does not tend to prove active participation in the gang in 2010.

In summary, then, all the People have to rely on to prove that Her was actively participating in Menace Boyz in July 2010 is that: (1) he admitted to being a member of Menace Boyz in 2006; (2) he was detained and arrested in the company of other Menace Boyz members in 2000 and 2007; and (3) when he was found in possession of the stolen tires and rims in 2010, he was in the company of another Menace Boyz member (who was not proven to have committed the crime with him) and was wearing a blue shirt. We conclude that these facts are insufficient to reasonably support an opinion that Her's involvement in Menace Boyz was more than nominal or passive at or near the time he received the stolen tires and wheels. Accordingly, Her's conviction of the substantive gang offense must be reversed.

DISPOSITION

As to Xiong, the judgment is reversed in its entirety.

As to Her, his conviction of actively participating in a criminal street gang is reversed, and the criminal street gang

enhancement on his conviction of receiving stolen property is also reversed. The remainder of Her's convictions are affirmed, and his case is remanded to the trial court for resentencing.

We concur: RAYE , P. J. BLEASE , J.


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