(Super. Ct. No. SF101424A)
The opinion of the court was delivered by: Raye , P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The jury did not believe defendant Theara Yem's testimony that he acted in self-defense when he shot and killed 19-year-old Kevin Nhep and then emptied his nine-millimeter magazine, spraying a total of fourteen bullets at Nhep and five others associated with an Oakland gang. Neither Nhep nor the others had a gun. Defendant was found guilty of second degree murder with the personal use of a firearm for the benefit of a criminal street gang, shooting at an occupied motor vehicle for the benefit of a criminal street gang, and active participation in a criminal street gang. He was found not guilty of the attempted murder of any of the others sitting in the red Honda parked at the Discount Liquor Store where the shooting occurred. We conclude defendant failed to make a prima facie showing of discrimination when the prosecutor exercised her second peremptory challenge to excuse an African-American juror. We also reject his challenge to the sufficiency of the evidence and to two evidentiary rulings, and affirm the judgment.
Most of the percipient witnesses to the shooting lied to the police during the initial investigation and were affiliated with different gangs, whether they were validated members or not. They all, including defendant, told the jury the same basic chronology of events, the details and various discrepancies of which are irrelevant to the issues before us. Because defendant admitted at trial that he shot Nhep and kept on shooting until his gun was empty, we begin with a synopsis of his testimony. The only issue before the jurors was whether they believed he had acted in self-defense.
Defendant testified he spent several nights a week with Chantha Bun, a leader of the Tiny Raskal Gang (TRG), because Bun lived closer to where defendant worked. Although his social life revolved around TRG and he was photographed with gang members giving gang signs, he told the jury he was not a member of a gang and the signs were neighborhood signs, not gang signs. The events on the night of August 17, 2006, would suggest otherwise, even according to defendant's own telling of the story.
On that summer night, he was hanging out with Bun and other TRG members at Bun's house. Defendant, as was his custom, was armed with a nine-millimeter gun. Although it is unclear if he had it with him in the car, defendant had borrowed an Uzi. Bun and his girlfriend left to buy beer, cigarettes, and snacks at the Discount Liquor Store located two blocks from Bun's house. They returned, however, without the cigarettes. Defendant and Bun went back to the liquor store in defendant's black Honda to get the cigarettes. Only defendant went inside.
Near the counter, defendant encountered David Suon, a former member of the Oak Town Crips from Oakland. Suon asked, "What's up, 'cuz?" and defendant responded, "What's up?" Defendant did not feel threatened and he bought his cigarettes without incident.
But when he left the store, he saw Nhep standing by the side of a red Honda with several other Cambodians inside the car. Nhep had his hands inside his pants and was staring at him. He asked Nhep, "Do you have a problem?" and Nhep repeated the inquiry, "Do you have a problem?" Defendant lifted up his shirt to show Nhep his gun, hoping that Nhep would back off. He was scared and thought Nhep would shoot him. Defendant pulled out his gun and "just shot." He kept on shooting until the magazine was empty, but he testified he did not intend to hit any of the people in the car.
Bun drove up in defendant's car and they fled the scene. Defendant threw away the gun and hid his car. He showered to remove the gunshot residue and drank beer with TRG members. The next day he went to work, collected his wages, tried to borrow money from a co-worker, and returned to Antioch, where he lived with family members. When later apprehended, he lied to the police. Although he told the police initially he was not the shooter, he testified the group of people did not display a gun and he admitted he was the shooter.
Nhep's five friends gave similar accounts of the events leading up to the shooting, with minor discrepancies. They all agreed that no one in their group had thrown any gang signs, no one was armed, and no one verbally challenged defendant. They denied "mean mugging" him, that is, staring at him in a threatening or menacing manner. According to a few in the group, Nhep was holding a cell phone. After they saw defendant's gun, they unsuccessfully encouraged Nhep to get back into the car. One of them yelled to defendant, "Hey, we got no problem." They saw defendant shoot Nhep. One of the girls was shot in the buttocks, another in the leg.
A gang expert testified to the sociology and psychology of gang members, particularly the Asian gangs operating in Stockton. He familiarized the jury with the leadership structure, customs and practices, and members identified with TRG, including the fact that because they claim "EBK" (everybody killer), they do not claim Blood or Crip gangs and will shoot anybody. The expert opined that defendant was an active member and committed the instant offenses for the benefit of the gang. He described the two predicate offenses committed by TRG members to satisfy the elements of the gang enhancements. Defendant does not challenge the expert's testimony on appeal.
The prosecutor exercised her second peremptory challenge to excuse an African-American juror with an attitude and background defendant characterized as favorable to the prosecution: his mother was a police officer, he was a Marine with training as a Navy Seal and an Army Ranger, and his son served in the Army. He was familiar with gangs and adolescent behavior but, he explained, did not judge people based on stereotypes and realized that young people who participated in gangs could turn out to be good citizens or they could go astray and take a toll on a neighborhood. He had been to the Discount Liquor Store where the shooting occurred many times. The trial court found these circumstances did not give rise to a reasonable inference that the prospective juror had been challenged because of impermissible group bias. On appeal, defendant challenges the trial court's ruling that he failed to establish a prima facie case of discrimination.
The use of peremptory challenges to remove prospective jurors based solely on the basis of their race offends the equal protection clause of the United States Constitution (Batson v. Kentucky (1986) 476 U.S. 79, 84-89 [90 L.Ed.2d 69, 79-83] (Batson)) and the right to a trial by a jury drawn from a representative cross-section of the community as expressed in the California Constitution (People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler)). A criminal defendant must establish a prima facie case of discrimination "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." (Batson, supra, 476 U.S. at pp. 93-94.) "The exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal." (People v. Silva (2001) 25 Cal.4th 345, 386.)
The trial court realized that the exclusion of even one juror based on race violated defendant's rights under the state and federal Constitutions. In this case, however, the court explained that defendant did not carry his burden of establishing a prima facie case of discrimination. The court stated: "Now, the Court is looking at the totality of the circumstances in this case, understanding that [Prospective Juror B.] is African-American. But all the principles in this case are Cambodian, the defendant and the victim, so there's no group association. [¶] The case doesn't have group overtones in the sense that it's a minority group versus victims from the dominant part of our culture, so there's not a factor that establishes prima facie showing. There hasn't been a pattern, although it's not required. It is a factor to be considered. [¶] That is not the case at this point in time, nor can I say anything about disproportionate use of challenges. I will not. He was not the first person the prosecution challenged. ...