(Super. Ct. No. SCD212126) APPEALS and CROSS-APPEAL from a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed.
The opinion of the court was delivered by: Benke, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted appellants Erik Hung Le and Down George Yang of murder (Pen. Code,*fn2 § 187, subd. (a), count 1); attempted willful, deliberate and premeditated murder (§§ 664, 187, subd. (a), count 2); discharging a firearm from a motor vehicle (§ 12034, subd. (d), count 3); and assault with a semi-automatic firearm (§ 245, subd. (b), counts 4 & 5). The jury also found true that all counts were committed for the benefit of a street gang (§ 186.22, subd. (b)); that as to counts 1, 2 and 3, Le and Yang were principals in the offenses and that during their commission, at least one principal used a firearm (§ 12022.53, subds. (d) & (e)); and finally, as to counts 3 and 4, that Yang personally used a firearm (§ 12022.5, subd. (a)(1)). Le was sentenced to a term of 96 years to life and Yang to a term of 101 years to life.
Le and Yang raise myriad challenges to their convictions. We consider them seriatim. As we explain, we reject their challenges and affirm their judgments of convictions.
The People cross-appeal, contending the trial court erred in staying the sentence under court 4 for the firearm use enhancement under section 12022.5, subdivision (a) and imposing under that count the 10-year "violent felony" term for the gang enhancement under section 186.22, subdivision (b)(1)(C). As we explain, we conclude the trial court properly stayed the firearm use enhancement under section 12022.5.
FACTUAL AND PROCEDURAL BACKGROUND*fn3
In 2002 Le and Yang were members of the Tiny Oriental Crips (TOC), a criminal street gang that claimed as its territory Linda Vista and parts of Mira Mesa, communities within the City of San Diego. TOC territory included the Han Kuk Pool Hall (pool hall) located on Convoy Street then owned by Don Su (Don) and his wife Kyung Su (Kyung) (together, the Sus). The Sus had owned the pool hall for about three months at the time of shooting. Rivals of TOC included Asian Crips (AC) and the Tiny Rascal Gang (TRG). The pool hall was managed by the Sus' nephew, Min Su (Min).
On the night of June 14, 2002, TOC member Kane Bo Pathammavong*fn4 and his friends Gerry Ian Sulit, Phouthasanoe Volvo Syrattanakoun, Sherri Pak and Rei Morikawa were drinking in a grassy area near the pool hall. During the evening, Le joined the group. At some later point, Le spotted AC members near the pool hall and yelled out a gang challenge.
Le left to make a phone call to Yang. When Le returned, he told Pathammavong and Syrattanakoun to leave with their friends. Pathammavong and his group left and went to a tea house located in the same shopping center as the pool hall.
Octavius Soulivong*fn5 (Octavius) was at the house of his twin brother Orlando, along with Yang and several other TOC members. Around midnight, Orlando received a telephone call. Orlando claimed the caller was Le. After talking to Le, Orlando handed the phone to Yang, who walked outside to talk. When Yang returned, he told the group that he and Le were going to the pool hall. About 15 minutes later, Le arrived at the house. Le told the group there were some AC members at the pool hall and asked whether anyone had a "strap" (e.g., slang for gun). Le left the house shortly thereafter with Yang and John Vue.
Pathammavong and his friends were at the tea house when Le returned. Le said he needed to take care of something and told Pathammavong and his group to stay put. Another car pulled up and parked next to Le's car. Le spoke to a passenger in that car, returned to Pathammavong and his group and told them not to follow. Both cars then left the parking lot.
Pathammavong did not take Le's advice. Thinking there might be a fight or shooting because of the "tension," Pathammavong and Sulit began driving to the pool hall in Pathammavong's car. On the way they heard gunshots and decided to return to the tea house.
At the time of the shooting, Don and his friend Jinwon Lee were outside the pool hall. TRG members Michael Lieng and Nikhom Somsamout arrived in the parking lot near the pool hall. A car with two people inside pulled into the alley near the pool hall. Shots were fired from the car and then the car sped away. One of the bullets struck Don in the neck area. Another struck Lieng in the right elbow and a third bullet struck Somsamout in the right foot. Don died three days later from the gunshot wound.
After the shooting, Le and Yang returned to Orlando's house where, according to Octavius, they spoke about the shooting. Le claimed he was the driver and Yang the shooter. Le also claimed Yang "shot the whole clip" from the rear left seat of the car driven by Le; Yang shot at people in front of the pool hall and kept shooting without aiming. Le referred to AC members as "ass crack," and bragged that he and Yang shot at them. During Le's recounting of the shooting, Yang interjected and corrected some of Le's statements about the shooting.
TOC members subsequently learned that the shots fired on the night of June 14 had struck and killed Don and not AC members. TOC members, including Yang, agreed not to discuss the shooting any more.
Police investigators recovered a beer bottle in the alley on the south side of the pool hall; a fingerprint matched to Le was found on the neck of the bottle. Police also found several cartridge casings consistent with a 9 millimeter Luger semi-automatic. Because police did not have a murder weapon, a casing was placed into a computer database matching bullets to weapons.
During a search warrant executed at Yang's home, police found under a bed an empty box of 9 millimeter casings along with a gun-cleaning kit. Yang's fingerprints were on the gun box and an instruction manual for the gun.
In early 2005, Deputy Richard Sanchez of the San Diego County Sheriff's Department stopped a car for speeding. The driver was Daniel Manalo, a member of the "B-Down" criminal street gang. During a search of the vehicle, Deputy Sanchez found a 9 millimeter Jennings Bryco semi-automatic handgun with an illegible serial number. Manalo claimed he bought the gun a short time earlier from an individual in Del Mar.
Criminalist Mary Jane Flowers of the San Diego Police Department found the gun had a serial number "1452_66" with the "_" being either a 3 or a 5. Flowers test-fired the gun and placed the results in the computer database. A match came back to the pool hall shooting and four other shootings.
Investigators traced the gun to Yang's older brother, Meng. Meng told police he purchased the gun for Yang from a federally-licensed firearms dealer at a gun show in October 2001. Although Meng filled out the paperwork to acquire the gun, Yang paid for the weapon and accompanied Meng to pick up the gun after the waiting period. Meng told police he gave Yang the gun that day and never saw it again.
Meng identified the box of ammunition recovered during the search warrant as the box that came with the gun. When a detective asked Meng about the gun, Meng said he bought it for Yang and did not know its whereabouts. Meng then blurted out, "Was it used in a murder or something?"
In August 2007 police obtained authorization to wiretap Yang's phone. The record includes myriad incriminating statements involving Yang and the shooting, including as follows:
August 14, 2007 (call between Yang and Meng)
Yang: "[E]ver since last Wednesday, they started asking about that thing. [¶] . . . [¶] Yea, they about to back off but they don't have anything, like the same thing. But the gun, said I sold it that guy 'Slipper.'[*fn6 ] The gun, they found it at Slipper's." Meng: "Oh really?" Yang: "Yeah. Say you sold it to the Slipper guy and you don't know his name that's it. If they make it hard for you just say, 'You talk to my lawyer. He will answer my questions because you don't know what they're talking about. That's it'." Meng: "All right." Yang: "But if you are afraid--they make you afraid. Don't be. Don't worry about it. Say you sold it to Slipper, that is all."
August 14, 2007 (Yang, Meng)
Yang: "Hey, did they say you bought the gun for yourself or you bought it for me?" Meng: "Yea, I said bought it for me in particular." Yeng: "All right."
August 14, 2007 (Yang, unidentified male (UM))
Yang: "I told Meng to say he sold it to 'Slipper' already. Said that Meng bought it and when he didn't want it, he . . . sold it to 'Slipper.' "
August 14, 2007 (Yang, Meng)
Meng: "Where did you put the gun?" Yang: "Sold it already. [¶] . . . [¶] Sold it to slipper . . . already, I told you. [¶] . . . [¶] Fuck! You told them that you gave me the gun. You just got me involved!"
August 15, 2007 (Yang, Meng)
Yang: "[D]id they say, they don't have the gun?" Meng: "They found the box." Yang: "I think they got the gun. They found a gun but yours they don't get it. The serial numbers on yours, I removed it already. I made sure. Just the box. [¶] . . . [¶] [I]f they don't have the gun, there is nothing they can do. [¶] . . . [¶] It seems like they don't have good evidence. . . . Let them take the box. The box and the paper. [¶] . . . [¶] They found a gun . . . but the one I gave you I removed the serial number already. There is no way they--I removed the serial number before I sold it."
August 15, 2007 (Yang, UM)
Yang: "My brother fuckin' told them [police] that he gave me the strap. [¶] . . . [¶] That was used for the case. [¶] . . . [¶] [T]hey gonna come tomorrow morning and take my ass in for that shit. [¶] . . . [¶] I want to run[.] [¶] . . . [¶] I'm just thinking about running out on this."
August 16, 2007 (Yang, U.M.)
Yang: "[T]hey [police] took Meng yesterday. [¶] . . . [¶] [T]hey lookin' for the strap . . . . [¶] . . . [¶] Meng said . . . he bought me, he got me a strap, he gave me a strap, but they're not sure it's the same one. [¶] . . . [¶] [H]e just kinda slipped. Not bad, there's still nothing."
August 16, 2007 (Yang, Octavius)
Yang: "Hey man--remember back when you first came out, you told me that--that you got that Shirocko?" Octavius: "The what?" Yang: "They [police] got the . . . heater." Octavius: "The what?" Yang: "The thing, you know--" Octavius: "What thing?" Yang: "Fabosha--" Octavius: "Oh yeah--yeah. What about it?" Yang: "How do you know they have it?" Octavius: "Because they told me. They told me that they got it from some big--got it from some fool from B-Down." Yang: "Did they show it to you or what?" Octavius: "No, they just told me. They told me this when I was in jail." [¶] . . . [¶] Yang: "[W]hen they hit [searched] my house, last time, they found the--they found the box. That he [Meng] bought the strap in. Cause he bought it brand new. [¶] . . . [¶] So it's under his name but . . . I sold that motherfucker a long time ago. You know what I'm saying?" [¶] . . . [¶] Octavius: "[T]hey didn't give me the name of the person who they picked it up from and shit, but he was like--'Yeah, cause--uh--it don't make sense, cause we got the gun from the fool from B-Down and shit.' You know what I mean? . . . I was all, 'I don't know man, whatever.' And then you tell me that the cops went up to Meng and shit and asked MENG about the strap and giving it up and shit, but--I don't know. Either that, though, or they fuckin made some fuckin big ass fuckin story about it or some shit." Yang: "So you knew they were going to go--go talk to Meng already?" [¶] . . . [¶] Octavius: "I didn't know. How the hell was I to know? I don't know what strap you guys talking about." [¶] . . . [¶] Yang: "Whoa, whoa, whoa." Octavius: "What I'm talking about is the one that Bo [Pathammavong] had--that Bo used to kill that one fool?" Yang: "Yeah." Octavius: "OK? That fuckin--uh--the nine." Yang: "Yeah." Octavius: "That's the one that Cuz was talking about. He talking about that nine w-w-was stripped off to fucking--uh--to B-Down. That's the one I'm talking about. I don't know what--what fuckin strap you talking--talking about Meng--[¶] . . . [¶] Yang: "[T]hey [police] didn't say that was the gun used. Cause--if it--I think if it was, they would say, 'Your gun was used for so and so.' You know?"
San Diego Police Department Detective Daniel Hatfield testified as the prosecution's gang expert. In 2002 TOC had between 50 and 60 members, including Le and Yang. The primary activities of the TOC gang in 2002 included murder, robbery, assault with a deadly weapon, drive-by shootings at occupied residences, shootings at occupied vehicles, auto thefts and burglaries.
A. Sufficiency of Evidence to Prove Intent to Kill
Le contends the evidence was insufficient he acted with the intent to kill, requiring his conviction in count 1 for murder be reduced to second degree murder and his conviction in count 2 for attempted murder be reversed.
1. Standard of Review and Governing Law
On appeal, "we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) The same standard applies when assessing a federal constitutional due process claim: "[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 318, fn. omitted [99 S.Ct. 2781].)
"The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]" ' [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) The conviction shall stand "unless it appears 'that upon no hypothesis whatsoever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin, supra, 18 Cal.4th at p. 331.)
"[A]ny murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree." (§ 189, italics added.) Thus, proof of a specific intent to kill (express malice) is required to prove first degree murder on this theory. (People v. Chavez (2004) 118 Cal.App.4th 379, 386; see also § 188 [Malice "is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature."].) Premeditation and deliberation need not be proven for first degree murder by a drive-by shooting. (People v. Sanchez (2001) 26 Cal.4th 834, 849, 851, fn. 10, 853, fn. 11.) Rather, the murder "could be the product of sudden and spontaneous rage, occurring without premeditation and not occurring in connection with the commission (or attempt to commit) any felony." (People v. Rodriguez (1998) 66 Cal.App.4th 157, 165, fn. omitted.)
Because there rarely is direct evidence of a defendant's intent, it must usually be determined by looking at all of the circumstances surrounding the defendant's actions. (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) Whether a defendant had the intent to kill is a question of fact for the jury. (People v. Lashley (1991) 1 Cal.App.4th 938, 946.)
Based on the evidence presented at trial, we conclude a reasonable jury could have found that Le harbored the requisite intent to kill on the night of the shooting.
Indeed, the record shows that on the night Su was killed, Le and other TOC members were hanging out on a grassy area near the pool hall; that at one point Le saw cars pulling into the parking lot and yelled out a gang challenge because Le believed members of the rival gang AC, whom Le referred to as "ass cracks," were in TOC territory; that Le told the group he was going to call Yang, left and returned about five minutes later and told Pathammavong, "Get your people out of here"; that Pathammavong and Sulit gathered their friends and went to a tea house in the same shopping center as the pool hall; that while Octavius was at his brother's house along with several TOC members, including Yang, Le called and spoke to Orlando and then to Yang, who confirmed that he was going with Le to the pool hall; that about 15 minutes later, Le arrived at Orlando's house, said there were AC members at the pool hall and asked if anybody wanted to return with him to the pool hall; that before leaving Le asked if anybody had a "strap" and then spoke to Yang, who was known by other TOC members to own a 9 millimeter gun; that Le, Yang and Vue left in Le's car and returned to the pool hall; that Le next drove to the tea house where he met Pathammavong and his group and instructed them to stay at the tea house; that Le approached another car that had parked near Le's car, spoke to a passenger of the other car and then returned to Pathammavong's group and said not to follow; that both cars pulled out of the parking lot at the same time and gunfire erupted shortly thereafter; that after the shooting Le and Yang returned to Orlando's house, where Le spoke about the shooting; that Le confirmed he was the driver and Yang the shooter, and Yang had "shot the whole clip" at some "ass cracks"; and that AC's presence at the pool hall was an act of disrespect to the TOC because TOC considered the pool hall its territory.
We conclude this evidence is sufficient to support the jury's finding that Le harbored the requisite intent to kill on the night of the shooting.
Le contends that any evidence proffered by Octavius is inherently unreliable and cannot be considered to support the intent to kill finding because on the day of the shooting Octavius had consumed 320 ounces of malt liquor between the hours of 2:00 p.m. and midnight and because Octavius was known to be a compulsive liar. However, it was for the jury to decide whether to believe Octavius's testimony and the weight, if any, to afford it. (See People v. Breverman (1998) 19 Cal.4th 142, 162 [assessing witness credibility is exclusively the jury's function].) In addition, Le does not dispute that the trial court properly instructed the jury in this case regarding its role as fact finder and as sole judge of the "believeability of the witnesses."
In addition, even without the testimony of Octavius, there was sufficient, credible evidence to support the jury's finding that Le harbored the requisite intent to kill on the night of the shooting.*fn8
We also reject Le's contention that the statement by the People's gang expert that shooting at rivals without hitting them shows a lack of intent to kill in this case. However, the jury decides whether there is an intent to kill and not an expert. In any event, the record shows the expert was testifying about the "benefits" a gang derives when shots are fired by one of its members at a rival gang and misses the intended target, or, as in the instant case, hits an unintended target, among other subject matters. This testimony in no way supports Le's argument.
Le next contends the trial court abused its discretion when it refused under section 1098*fn9 to sever the trials of the two appellants.
At the time Le filed his motion to sever, there were three defendants in the case: Le, Yang and Pathammavong. Le mainly argued in his motion that severance was necessary because the People intended to introduce "highly prejudicial" statements by Pathammavong that implicated Le in the crime by placing Le "at or very close" to the proximity of the crime scene and by insinuating that Le knew a shooting was about to take place. Le also argued that severance was necessary because his association with Yang and Pathammavong was prejudicial, inasmuch as he claimed both individuals were much more involved in TOC than he; that there was a likelihood of jury confusion resulting from evidence involving multiple counts against three individuals; that Yang might give testimony exonerating Le if Yang was separately prosecuted; and that the case against him was weak while the case against Yang and Pathammavong was strong.
At the hearing on the motion, the trial court noted Pathammavong was no longer a defendant in the case after pleading guilty and agreeing to testify against Yang and Le. Le's counsel acknowledged that with Pathammavong out of the case, "70 to 80 percent of the argument [on the motion to sever] appears to be moot." Nonetheless, Le's counsel argued severance was still required because the case against Le allegedly was much weaker than the case against Yang.
The trial court denied the motion to sever, reasoning as follows:
"There is, of course, a general preference in the law for joint trials. In part, this is for judicial economy, and in part it's to minimize the emotional and other costs to witnesses. Certainly that preference, however, must not be allowed to infringe on the right of a defendant to receive a fair trial and due process.
"The cases say that this is something of a discretionary call for the court to make. There are a number of cases that have talked about the various grounds that would either authorize a severance or require one or that should be considered by the court. I don't really see any of those grounds present here. [¶] . . . [¶]
"I understand that there is some circumstantial evidence as to Mr. Yang that doesn't exist with respect to Mr. Le, and there may be some intercepted phone calls of Mr. Yang that don't involve Mr. Le, but, frankly, looking at it as a whole, it seems to me that the evidence is [relatively] comparable as to both of these gentlemen.
"There was a reference in the papers, I think, to the possibility that if severed, Mr. Yang would give exonerating testimony. That representation seems to me to be pretty watery. I certainly don't have anything other than that that might demonstrate a due process o[r] Sixth Amendment violation.
"Bottom line is I believe that in this case it's not a good basis to sever, and I'm going to deny the motion for severance."
" ' "When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials." Our Legislature has thus "expressed a preference for joint trials." [Citation.] But, the court may, in its discretion, order separate trials . . . .' " (People v. Letner and Tobin (2010) 50 Cal.4th 99, 149-150.)
"The court should separate the trial of co-defendants 'in the face of an incriminating confession, prejudicial association with co-defendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a co-defendant would give exonerating testimony.' " (People v. Turner (1984) 37 Cal.3d 302, 312, overruled on other grounds as stated in People v. Anderson (1987) 43 Cal.3d 1104, 1149-1150, superseded by statute as stated in People v Letner and Tobin, supra, 50 Cal.4th at p. 163, fn. 20.) "Whether denial of a motion to sever the trial of a defendant from that of a co-defendant constitutes an abuse of discretion must be decided on the facts as they appear at the time of the hearing on the motion rather than on what subsequently develops." (People v. Isenor (1971) 17 Cal.App.3d 324, 334.)
Le argues that the evidence against him was much weaker than the evidence against Yang, and as such, Le was prejudiced by his "mere association"' with Yang. To support this argument, Le claims there was "scant" evidence establishing his "presence and participation" in the shooting, as compared to the "large amount" of evidence against Yang, which he claims was substantial and included wiretap and other evidence positively linking Yang to the murder weapon.
We disagree with Le that the evidence against him was "scant," as demonstrated ante in connection with the summary of evidence on the issue of intent to kill. In fact, the record shows that at the time the trial court denied the motion to sever there was substantial evidence of Le's involvement in the shooting.*fn10
Moreover, we note that Le and Yang were charged with having committed " 'common crimes involving common events and victims.' [Citation.] The court accordingly was presented with a ' " 'classic case' " ' for a joint trial. [Citations.]" (People v. Lewis (2008) 43 Cal.4th 415, 452-453.)
Thus, on this record we conclude there was neither an abuse of discretion nor gross unfairness when the trial court denied Le's motion to sever. (See People v. Letner & Tobin, supra, 50 Cal.4th at pp. 149-150 ["a reviewing court may reverse a judgment only on a showing that joinder ' "resulted in 'gross unfairness' amounting to a denial of due process." ' [Citation.].]")
C. Request for Foundational Hearing Regarding Testimony by Octavius
Le next contends the trial court erred both when it refused to hold a hearing pursuant to Evidence Code section 402 before allowing the jury to hear the testimony of Octavius and when it ultimately admitted that testimony. Le contends this testimony was inadmissible hearsay and opinion testimony, and more prejudicial than probative.
At a pretrial hearing, the trial court summarized what it described as the "interrelated" motions of Le and the People regarding the admission of testimony by Octavius. The People moved to admit Octavius's testimony regarding statements made by Le and, to a lesser extent, by Yang after the shooting, as adoptive admissions. Le moved to exclude those statements as well as any testimony by Octavius regarding a telephone call Le allegedly made before the shooting when Le spoke to Orlando and then Yang.
After hearing argument, the court noted Octavius had provided inconsistent accounts of the events and conversations regarding the shooting in interview transcripts, police reports and the preliminary hearing transcripts. The court found these inconsistencies provided "fertile ground for ...