(Super. Ct. No. 08F02348)
The opinion of the court was delivered by: Hoch , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a jury trial, defendant Billy Chan Saechao was convicted of second degree murder (Pen. Code,*fn1 § 187) with firearm and street gang enhancements. (§§ 12022.53, subds. (b)-(d), 186.22, subd. (b)(1).) The trial court sentenced him to 50 years to life.
On appeal, defendant contends: (1) the trial court failed to instruct the jury on a self-defense theory; (2) instructions allowing the jury to consider defendant's pretrial statement violated his due process by lowering the prosecution's burden of proof; and (3) instructions allowing the jury to consider his subsequent effort to hide evidence violated his due process rights. We find an error in the abstract and affirm the judgment.
In March 2008, Gnia Lee*fn2 and his sister Jeanie lived in their parents' south Sacramento house. Jeanie invited four of her girlfriends -- Tracey Yang, Shari, Nai, and Mey Saechao -- over for an outdoor party. Gnia spent the night indoors, while other members of his family (brothers Ki and Ker, cousin Koua, relatives Steve and Roger Lee, and Steve Chang) and Ki's friend Teng Xiong were at the party.
Mey, Shari, and Nai decided to go home, and Mey called her boyfriend, defendant, to pick them up. Defendant was at a nearby party with his friends Thanhdat Chau, Joe Duong, and Tim Saetern. Defendant told Mey he would come and get her; Mey had Yang give him directions. Jeanie, Mey, and their girlfriends went out front to wait for the ride.
Koua, Xiong, and Chang decided to leave the party at around the same time. As they were getting into Koua's car, defendant's group drove up to the residence. According to Yang, Koua's group exchanged words with defendant's group while they crossed the street. The exchange was not friendly, and the two groups exchanged gang words. Suddenly, shooting erupted between the two groups. Yang saw defendant fire first, and Koua fire back many times.
Xiong testified that he was out front drinking when a white Acura drove by, made a u-turn, and parked about half a block up the street. Koua was across the street in his car. Ki was inside the house, but came out when the Acura showed up. The occupants got out of the Acura and started making gang signs while yelling out for their gang. Two of the Acura's occupants then started shooting. Xiong was shot in the left hip and fell to the ground. He was shot by defendant.
Ki was in the backyard when he heard three or four shots. Ki ran to the street, where he saw Koua in his car, Xiong lying on the grass, and a person in a black sweater running away. Ki then fired two shots into the air to scare people, and threw his gun, a .22 caliber semiautomatic pistol, into the bushes. Ki denied being a member of a Crip gang, but admitted Crip graffiti was in front of the house.
Gnia was inside when he heard at least three or four shots from the front of the house. He ran outside, where he heard people screaming that Xiong was shot. Gnia grabbed Xiong, who was lying in the neighbor's yard and said he was shot and going to die. When Steve Lee said Koua had been shot, Gnia ran across the street to Koua's car, where he found Koua in the driver's seat, bleeding from the lower chest and unresponsive.
Emergency personnel pronounced Koua dead at the scene. Police found Koua in the driver's seat of a white Volkswagen sedan parked across the street from the house. A .9mm Smith and Wesson semiautomatic pistol was in the driver's seat. The pistol had no ammunition and the slide was in the locked back position, suggesting it was fired until it ran out of bullets. Koua died of a single gunshot that went through the skin and tissue of his forearm, penetrating his heart and liver before stopping in his abdominal cavity. He could reason and move for about 30 seconds after sustaining the fatal wound, enough time to fire a weapon and move to his car.
Police found 26 .9mm cartridges at the scene, of which 15 were fired from Koua's gun. Officers found two .22 caliber cartridges, which were fired from Ki's gun. Koua was killed by a .380 caliber bullet that matched a .380 caliber casing found at the scene.
Duong testified that defendant's group had problems finding the place as they drove to pick up Mey. They eventually drove past the home, made a u-turn, and parked. The four males got out of the car and walked towards the house; as they approached they saw at least three males in a white car across the street. The occupants of the white car looked really hard at defendant's group, like they were "mean mugging" them, a gang term for challenging someone by staring them down.
The two groups exchanged words. Duong believed the other group said something first, like, "What's up, Cuz," which could be taken as an insult. Defendant said the same phrase back to them. The other group then got out of the car, pulled out guns, and shots were fired. Duong did not see who fired first.
People scattered and ran after the shots were fired. Duong's group met at a friend's house, where defendant admitted shooting somebody. Duong admitted he was once labeled as a member of the Asian Boys' Society gang. An exchange of hard looks can cause a gang member to ...