People v. Phomvilay

THE PEOPLE, Plaintiff and Respondent, v. VONG PHOMVILAY, Defendant and Appellant.

F076279

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

June 25, 2020

ORDER MODIFYING OPINION AND DENYING REHEARING[No Change in Judgment]

It is ordered that the opinion filed in the above-entitled matter on June 25, 2020, be modified as follows:

On page 62, at the end of the first sentence of the Disposition, add as footnote 5 the following footnote:

⁵In a petition for rehearing filed by defendant on July 9, 2020, he argues for the first time on appeal that his case should be remanded for a resentencing hearing to allow the trial court to exercise its newly granted discretion to strike the firearm enhancement imposed under Penal Code section 12022.53, subdivision (d). He notes this discretion was granted when Senate Bill No. 620 (2017-2018 Reg. Sess.) took effect on January 1, 2018. Because this matter is remanded to the trial court for, among other reasons, resentencing, we need not address this argument any further. Defendant may make his request for discretionary striking of his enhancements directly to the trial court at the time of resentencing.

There is no change in the judgment. Appellant's petition for rehearing is denied.

PEÑA, J.

WE CONCUR:

LEVY, Acting P.J.

FRANSON, J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 15CR-06561)

OPINION

APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge.

Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Two men shot at Francisco Gonzalez and Victor Huerta in the street in March 2000. As a result of the shooting, Gonzalez was fatally injured and a bullet piercedHuerta's shoulder. An eyewitness identified defendant Vong Phomvilay as one of the perpetrators and he was charged in connection with the shooting. A jury convicted defendant of Gonzalez's murder, the unpremeditated attempted murder of Huerta, and unlawful possession of a firearm.

On appeal, defendant argues his convictions for attempted murder and unlawful possession of a firearm must be reversed because they were time-barred by the applicable statutes of limitations. He challenges all of his convictions, arguing insufficient evidence established he was the perpetrator. He also alleges multiple instructional errors. He asserts the court prejudicially erred in instructing the jury with CALCRIM No. 315 (eyewitness testimony identifying defendant), CALCRIM No. 362 (consciousness of guilt), CALCRIM No. 361 (failure to explain or deny adverse testimony), CALCRIM No. 302 (evaluating conflicting evidence), and CALCRIM No. 332 (expert witness testimony) because these instructions were unsupported by the evidence and led to an irrational presumption of guilt, and/or reduced the prosecution's burden of proof. Defendant also challenges the photographic lineup shown to an eyewitness, asserting it was unduly suggestive. He argues the trial court abused its discretion in admitting evidence of his gang affiliation, his prior conviction, and his outstanding misdemeanor warrants, as well as testimony regarding marijuana sales by others. He contends the prosecutor engaged in misconduct by arguing a prosecution witness would be targeted for testifying. He further contends the court prejudicially erred by instructing the jury on a legally impossible theory—that he could be convicted of attempted murder based on a theory he conspired to commit an attempted implied malice murder. Finally, he contends the cumulative effect of these errors resulted in a violation of his due process rights, and the abstract of judgment should be amended because it erroneously states he received a consecutive term for count 3.

We agree that counts 2 and 3 are time-barred and thus reverse defendant's convictions for attempted murder and felon in possession of a firearm and remand for thetrial court to hold a new sentencing hearing. In all other respects, we affirm the judgment.

FACTUAL BACKGROUND

Prosecution Case

The March 26, 2000, shooting

At trial, Huerta testified that on March 26, 2000, he, Gonzalez, Andrew Garibaldi, and Javier Castro drove from Los Banos to Merced so Huerta could meet with a girl he had recently met, Lorena T. They planned to "kick back and party." When the group arrived at Lorena's address, they parked, and Huerta exited the car and went to Lorena's door. He and Lorena stood outside "deliberating" because she had not gathered her friends as planned. Huerta eventually determined the gathering was not going to happen. He walked towards the car and saw Gonzalez walking toward him. Huerta heard a "pop" and ran for cover. He pushed his way into the door of a nearby apartment and waved to Gonzalez to follow. Huerta heard another louder "pop" that sounded like a shotgun. A woman inside the apartment told Huerta to leave because they were shooting at him. Huerta then realized he had been shot and his whole sleeve was covered in blood. Another occupant notified Huerta the alley had cleared and his friend (Gonzalez) was on the ground. Huerta ran to Gonzalez and "he was on his last breaths." Huerta did not see who pulled the trigger.

Huerta identified himself as a Norteño "associate" at the time. He testified Gonzalez was wearing a red sweatshirt and had tattoos identifying himself as a Norteño. Garibaldi reported to police that they were part of the West Side Norteños. Detective Joseph Deliman, a Merced police officer in 2000, testified Oriental Troop and True Blue are Asian gangs within the City of Merced that associate with the color blue. They were enemies of the Norteños.

Castro testified he and Garibaldi were in the car when they heard shots. Right before, Castro saw "two dark figures come out from the alleyway, but it was too dark."One of the men reached down, appearing to tie his shoe, and then got back up and pulled out a gun. Castro thought one of the men had a shotgun and the other had a handgun. Castro saw them shoot towards Gonzalez and Huerta and then run away. He testified there was a getaway driver nearby and the two men jumped in the car and left. Castro told the police right after the incident the two men were "definitely" Asian, but at trial he testified he could not see the shooters' faces. Garibaldi also reported the men were both Asian.

Mayra A. lived near the alleyway where the shooting took place. Right before the shooting, she went outside to retrieve her sister, Carla A., who was sitting in the parked car of her boyfriend, Joseph A. As Mayra walked to the car, she heard people speaking with raised voices and then saw a spark. Then, "the victim that got shot ... went back, and then fell to his knees." Mayra described the shooter as a five-foot six male in a black sweater. The shooter turned away and Mayra ran to her sister in the car. Mayra would not get in, so Carla and her boyfriend drove away. Mayra testified she was "kind of scared" of the people in her building because they were "always drinking, smoking, always wearing their colors." She explained that a lot of the building occupants were Asians who would wear blue attire.

Carla testified she saw the shooting occur while she sat in Joseph's car. She first saw the "red group" talking to some girls outside. She saw the victim, Gonzalez, walk to the car and then walk back towards the apartment. Then she "saw two guys ... one with a shotgun, the other one with a small gun" and they shot Gonzalez. Gonzalez fell to his knees and the men fired a second shot before running away.

Joseph also saw the shooting and he knew Gonzalez. However, he was not familiar with the shooters. According to Joseph, the shooters wore black and one had a shotgun. He recalled driving away with Carla and Carla telling him she knew the shooter.

The investigation and photographic lineup identification

Officer Matt Pope interviewed Carla, Garibaldi, and Castro after the shooting. In his interview with Carla the day after the shooting, Carla "said she got a good look at the suspects" and "she knew the one suspect that was holding the shotgun." Carla described the person she saw with the shotgun; she recalled the shooter was "young-looking" and he had "very thick eyebrows" and that both men were Asian and wore black. She stated she previously had seen the shooter hanging around the back area of the alley. She told Pope the suspect lived "in back of 120 S Street," and that she saw the shooters approach from the back of that property. Later that day, Pope executed a search warrant on that location where he found defendant, Lo Saetern, Lekxai Soulanone, and another individual named Tawn Saechao.

Pope interviewed defendant that evening at the police station. Defendant told him he had not shot a gun in the last year. Defendant admitted he and his cousin Lekxai Soulanone had been members of Oriental Troop in the past but were not members on that date. Defendant explained "there was really no way to identify the difference" between the gangs True Blue and Oriental Troop and that there was no gang rivalry between them.

Pope performed a gunshot residue test on defendant at the conclusion of the interview. Pope also tested Lekxai Soulanone for gunshot residue and interviewed him.

The day after the shooting, Detective Pope showed Carla four different lineups. After he read Carla the admonitions, Carla "quickly identified the subject in position No. 2 as the perpetrator with the...