People v. Le

140 Cal.Rptr.3d 748

The PEOPLE, Plaintiff and Respondent,

v.Eric Hung LE et al., Defendants and Appellants.

No. D057392.

Court of Appeal, Fourth District, Division 1, California.

April 27, 2012.

As Modified on Denial of Rehearing May 24, 2012.

Certified for Partial Publication.¹

Review Denied July 25, 2012.

Review Granted July 25, 2012.

Background: Defendants were convicted in the Superior Court, San Diego County, No. SCD212126, Charles G. Rogers, J., of murder, attempted willful, deliberate and premeditated murder, discharging a firearm from a motor vehicle, and assault with a semi-automatic firearm, and, following true findings that crimes were committed for the benefit of a street gang, that defendants were principals in the offenses and that during their commission, at least one principal used a firearm, and that one defendant personally used a firearm, and were sentenced to terms of 96 years to life and 101 years to life. Defendants appealed. and the People cross-appealed.

Holding: The Court of Appeal, Benke, J., held that assault with a firearm enhancement for personally using a firearm was stayed in light of gang enhancement, as gang enhancement involved defendant's use of a firearm.

Affirmed.

Sharon M. Jones, Ventura, under appointment by the Court of Appeal, for Defendant and Appellant Down George Yang.

Laura P. Gordon, Escondido, under appointment by the Court of Appeal, for Defendant and Appellant Eric Hung Le.

Kamala D. Harris, Attorney General of California, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

BENKE, J.

A jury convicted appellants Erik Hung Le and Down George Yang of murder (Pen.Code,² § 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 enhancementunder 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 ³

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 ⁴ 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 ⁵ (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.’[ ⁶] 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 ‘...