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The People v. Lue Seng Thao

January 24, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
LUE SENG THAO, DEFENDANT AND APPELLANT.



(Super. Ct. No. 08F03349)

The opinion of the court was delivered by: Blease , Acting P. J.

P. v. Thao

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Lue Seng Thao of attempted first degree murder (count 3; Pen. Code, §§ 664/187)*fn1 , assault with a firearm (count 1; § 245, subd. (a)(2)), and shooting at an occupied vehicle (count 2; § 246). As to count 3, the jury found true the allegation that defendant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c). As to count 1, the jury found true the allegation that defendant personally used a firearm in the commission of a felony or attempted felony within the meaning of section 12022.5, subdivision (a). The jury found gang enhancement allegations (§ 186.22, subd. (b)(1)) not true.

The trial court sentenced defendant to a term of life with the possibility of parole plus 20 years.

Defendant contends his confession was involuntary, and that he received ineffective assistance of counsel because his trial counsel failed to raise the issue.

FACTUAL AND PROCEDURAL BACKGROUND

Prior to the shooting incident in question, defendant had two other encounters with the victim, Choy Saephan. In the first encounter, defendant and his co-defendant Alex Lee attacked Saephan at a Hmong New Year celebration. During the second incident, Saephan was traveling in his car with his girlfriend. Saephan's girlfriend told him that defendant was in the car behind them, and when Saephan looked in his rearview mirror, he saw defendant reach under his seat and take out a black handgun, which he cocked.

Just before the incident which was the basis of the charges in question, Saephan saw co-defendant Lee at a gas station. Lee was hiding behind a dark green van. When Lee saw Saephan, he placed a telephone call on his cell phone. A little later, as Saephan drove down South Avenue, the green van pulled up behind his car. It then pulled alongside him, and approximately 12 shots were fired. Saephan thought one of the shots was aimed at his head, and another at his body. The final shot went through the trunk, and would have struck Saephan, except a metal bar kept it from going further.

Police discovered bullet casings and a bullet fragment at the scene of the shooting. Six Winchester 0.380 rounds, one bullet fragment, and one spent round were recovered from the scene. There were bullet holes on the trunk, back end, and driver's side rear door of Saephan's car. Particles consistent with gunshot residue were found on the interior front passenger's side of the green van, which defendant thought belonged to Lee's mother.

Detectives Bailey and McCoy interviewed defendant approximately a month after the shooting. They read defendant his Miranda*fn2 rights, which he indicated he understood. Defendant initially denied any involvement in the shooting, but eventually admitted first that he had been present at the shooting, then that he was the one who fired the shots.

Prior to trial, defense counsel brought a motion to exclude defendant's confession on the ground he had not understood the Miranda warning because of his limited proficiency in English. The trial court took testimony from defendant. Defendant stated he was nine years old when he came to the United States from Thailand. His primary language is Hmong, although he attended an English-speaking school in ...


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