People v. Lee

102 Cal.Rptr.2d 403

85 Cal.App.4th 706

The PEOPLE, Plaintiff and Respondent, v. Phia LEE et al., Defendants and Appellants.

No. F028940.

Court of Appeal, Fifth District.

December 18, 2000.

Certified for Partial Publication.^*

As Modified on Denial of Rehearing Jan. 17, 2001.

Review Granted March 28, 2001.

A.M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant Phia Lee.

Stephen Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant Johnson Xiong.

Bill Lockyer, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Deputy Attorney General, Harry Joseph Colombo and Timothy L. Rieger, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

WISEMAN, J.

INTRODUCTION

In the published portion of this gangland murder and attempted murder case, we hold the jury was properly instructed on the doctrine of transferred intent to kill as to the murder charges. We also hold the court erred by failing to instruct the jury that to find the enhancement penalty provisions of Penal Code section 664 subdivision (a) applicable, it must find the defendants personally premeditated and deliberated the attempted murders. We find, however, that the error was harmless beyond a reasonable doubt.

In the unpublished portion of the opinion, we hold insufficient evidence supports one of the attempted murder convictions and reduce it to a violation of section 245 subdivision (a)(2), assault with a deadly weapon.

PROCEDURAL HISTORY

By consolidated second information, defendants Johnson Xiong and Phia Lee were charged with two counts of murder (counts 1 & 2; Pen.Code ¹ § 187) and seven counts of attempted murder (counts 3-9; §§ 664/187). A special circumstance allegation of multiple murders accompanied the murder counts. (§ 190.2, subd (a)(3).) On the attempted murder counts, it was alleged defendants personally inflicted great bodily injury. (§ 12022.7) As to every count, both defendants were alleged to have personally used a firearm. (§ 12022.5, subd. (a).)

Defendants pled not guilty, denied the allegations, and the case was tried by a jury. The great bodily injury allegations were dismissed for lack of sufficient evidence establishing which defendant inflicted which injuries. Xiong was convicted as charged on all counts, and the firearm use allegations were found true. Lee was convicted on counts one through five, and the firearm allegations were found true on these counts. Lee was found not guilty on the attempted murders charged in counts six through nine. The special circumstances and premeditation allegations on the murder counts, i.e., that the murders were of the first degree, were found true.

Probation was denied to both defendants. Xiong was sentenced to prison for two consecutive 25-years-to-life terms (counts 1 & 2), seven consecutive life-with-possibility-of-parole terms (counts 3-9), and a consecutive term of 36 years for his firearm use. Lee was sentenced to prison for two consecutive 25-years-to life terms (counts 1 & 2), three consecutive life-with-possibility-of-parole terms (counts 3-5), and a consecutive term of 20 years for his firearm use.

Both defendants filed timely notices of appeal.

I. FACTUAL HISTORY

A. Burns Street attempted murders (counts 6-9)^**

B. Valeria Street murders and attempted murders (counts 1-5)

Shoua "Amy" Her testified she was a former member of the Ladies of Destruction (LOD). This gang was made up of females that spent time with MOD members (Men or Menace of Destruction). She testified both defendants Xiong and Lee were members of MOD. Former LOD members Blia "Tina" Xiong and Pahoua "Patty" Yang confirmed defendants' MOD membership.

Amy Her explained the gangs have territories they claim as their property. The MOD blamed the murder of two of their members, Hamburger and Tarzan, on the USC (Unstoppable or Unseen Criminals). Thong "Troy" Vang was a member of USC. Troy lived in an apartment complex on Valeria Street, which was in territory claimed by USC. Her was pleased when she saw the police cars and crime scene tape at Troy's Valeria apartments because she knew something bad must have happened to Troy, and she disliked him intensely.

At approximately 10:00 p.m. on June 21, 1995, officers responded to 232 North Valeria to investigate a murder. The officers collected numerous nine-millimeter shell casings, and noted many bullet holes and strike marks throughout the apartment complex. There was also gang graffiti on the walls and in the carport of the complex. One of the victims reported that two Asian males walked up to the corner of the apartment complex and began shooting into the apartment quad area. Shoe prints were found on the walkway and in the alley behind the complex. The prints had diamond-shape designs, and measured nine inches in length.

Doua Vang, age 19 at trial, testified he went to spend the night at his cousin Troy's apartment at 232 North Valeria in Fresno about 4:00 or 5:00 p.m. on June 21, 1995. Troy, who Doua knew was a USC member, left for work around 5:00 p.m. Doua was not a gang member, but spent time with Troy and occasionally with other USC members. Doua stayed at the apartment and waited for Troy to return. Doua stood in front of the complex at dusk, and saw a slow moving car approaching north to south on Valeria with Asian males in it, possibly Hmong. The car was dark-colored with two doors and looked like a Toyota. The front passenger looked like a MOD member Doua knew as "Joey," a former middle-school classmate. Doua was afraid of people who did not like Troy, so he went inside Troy's apartment.

A short time later Doua sat outside on the apartment staircase about three-quarters of the way up to watch some boys play basketball in the courtyard. As he watched the game, Doua heard three or four shots fired. Doua saw the ball players being hit by the bullets and falling, and also heard them screaming. Doua looked at the shooters, who were both in the apartment courtyard, and he stood up. After standing there for two or three seconds, the shooters noticed Doua, i.e., their eyes met. Doua became scared and turned to run into Troy's apartment. As he ran up the stairs, Doua could hear the bullets whizzing by him. Doua thought that while he ran toward the door, Sandy Vang, who was standing by the door, was shot. As Doua entered the open door, Sandy was on the floor of the apartment just inside the doorway. After the initial barrage of three or four shots, Doua heard about seven or eight more shots fired as he ran into the apartment. While inside, he heard two more shots. Doua was shot in the leg as he ran up the stairs. After the shooting stopped, Doua went back outside. As he opened the door, he heard one of the shooters yell, "`MOD, fool.'" Doua saw both individuals standing in the same spot, but they had turned and began to run away.

Doua described the courtyard in front of the apartments as small, and very well lit. Officer Chandler estimated the courtyard, which was nothing more than a concrete slab, to be 30 feet wide and 18 feet deep. It was in the center of a U-shaped apartment complex of six apartments, three upstairs and three downstairs. Two parallel staircases on either side of the courtyard went from the open end of the U to the closed end, which had a landing in front of Troy's apartment, the upstairs, closed-end of the U. As Doua stood just above the shooters, he recognized defendant Xiong as the shooter standing closest to him. Doua had seen Xiong two or three times before at McLane High School, and knew Xiong was a MOD member who had dated his cousin, Amy Vang. Xiong had his hair cut short, with the hair in front longer and hanging forward like bangs. The other shooter was taller, had short hair no longer than half an inch long, and appeared to be shaved all around his head. This shooter was defendant Lee. Lee looked like someone Doua knew as "Trouble." However, he had never seen Lee before. By the time of trial, Doua was no longer sure whether Lee had a gun during the shooting.

Doua held back information from police regarding the identity of the shooters for approximately two weeks because he was afraid of retaliation by the MOD. Doua had been identified in news stories as an eyewitness, which included photo images of him. This increased his fear of retaliation. After revealing the identity of the shooters to his parents, his father and uncle convinced Doua to tell police.

Troy Vang was a founding member of the USC along with "Penguin." He had lived in the apartment building where the shooting occurred for seven or eight years. Graffiti identified the apartment complex as USC territory. Troy identified Xiong, Lee, Junior, "Topper" and Vee as members of MOD. He also knew Junior drove a two-door, faded red, Toyota Celica or Supra. Doua at first would not identify the shooters. About a week after the shooting, Doua identified Xiong as one of the shooters, but did not know the name of the other one. After conversations with Doua, Troy suspected the other shooter was Junior or Topper. He also suspected his ex-wife, Blia "Tina" Xiong, of being involved. Penguin was in prison for the murder of a MOD member.

Michelle Vang, Troy's sister, testified Penguin used to be her boyfriend. Troy was at work and she was sitting inside her apartment watching television when she heard the sound of firecrackers outside. The apartment door was slightly open and Michelle saw her seven-year-old sister, Sandy, push the door open and fall into the apartment. As Michelle stood to help Sandy, Doua ran inside and told her to call 911 because there had been a drive-by shooting. Michelle's mother assisted Sandy, who had been shot. Michelle's five-year-old sister, Linda, was shot in the knee area. Just before the shooting, Linda had been standing by the heater near her mother. According to Doua, when he ran into the apartment Michelle was coming toward the door...