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The People v. Lee Tou Xiong

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


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