State v. Lee

102 Cal.Rptr.2d 403 (Cal.App. 5 Dist. 2000)

THE PEOPLE, Plaintiff and Respondent, v. PHIA LEE et al., Defendants and Appellants.

F028940

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Filed 12/18/00

APPEAL from a judgment of the Superior Court of Fresno County. Stephen R. Henry, Judge.

(Super. Ct. No. 571741-8) OPINION

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.

CERTIFIED FOR PARTIAL PUBLICATION^*

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In the unpublished portion of the opinion, we hold insufficient evidence supports one of the attempted murder convictions and reduce it to a violation of section 245 subdivision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. Code¹ 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)^*

On Saturday, April 29, 1995, the Hang family lived at 989 East Burns Street in Fresno, an area notoriously known as "the U." Brothers Kou, Cheng and Sa Hang, and neighborhood friend Thanaka Thao, were shot and injured that night while talking to each other in the bed of a pickup truck parked in front of the Hang residence.² The Hangs had a cousin named Xay Hang who had a similar build and hairstyle, and dressed like Sa. Although Xay was not a gang member, he associated with a gang known as the USC (Unstoppable Criminals and/or Unseen Criminals). The USC gang was a rival to a gang known as MOD (Men of Destruction).

Kou testified that Johnson Xiong lived a few houses down on the corner of Burns and Martin Luther King Boulevard, and they could stand in their respective yards and see each other clearly during the daytime. Kou believed Xiong was a member of MOD because he had heard Xiong's younger brother say so. As a form of intimidation and confrontation, rival gang members glare at each other in an exchange known as "dogging" or "mad dogging." At approximately 2:00 or 3:00 p.m. on April 29, 1995, Kou, Cheng, Sa, Thanaka, Xay and some other friends walked by Xiong's house. Defendants and another individual "dogged" the group as they passed.

About 8:00 that evening, Kou, Cheng, Sa and Thanaka were sitting on the sides of the bed section of their father's pickup. Defendants and an older muscular Hmong male approached them. The older suspect, sometimes referred to as "the big guy," asked about marijuana. When Thanaka responded, defendants and the big guy pulled out handguns and began firing them. The big guy shot Cheng, and then Kou. Kou believed Xiong shot Sa and possibly Thanaka. Kou was shot in the right knee and went down off the pickup before he could see whether defendant Lee fired his gun.

Kou crawled to his front door and into his house. His parents called the police, and officers arrived five to ten minutes later. Kou told the officers that three people from up the street had shot them. However, he did not give them Xiong's name because he was afraid of being killed by the gang in retaliation. Later, at the hospital, Kou gave the officers Xiong's name. However, on cross-examination he testified he never told any officer that Xiong was either a shooter or present, until he was interviewed by the district attorney's investigators on April 26, 1996. Kou had seen defendant Lee before the shooting but did not know his name prior to seeing it on a television news report.

Cheng testified he and his brothers, Kou and Sa, along with Thanaka and their cousin Xay, played basketball in the afternoon at Carver School, which was across the street from his house. Cheng went home to get a drink and saw three people on Xiong's lawn about 4:00 to 5:00 p.m. That night, Cheng was shot in the spine and fell into the pickup bed. Cheng was paralyzed from the waist down and is now wheelchair bound. Although he saw three people coming toward him from the direction of Xiong's house, Cheng, who was shot in the back, did not get a good look at all of them. He did see the older, muscular suspect, but not the other two, and could not identify defendants as his assailants.

Cheng related that Xiong and Xay were in rival gangs and did not like each other. About a year earlier, Cheng heard that Xiong had threatened "to kick Xay's ass because he called him a fag, something like that." Cheng had heard Xiong was a member of MOD. He also testified that the first time he recalls ever seeing defendant Lee was on television in connection with the murder of Sandy Vang.

Sa testified that in the afternoon, his brothers and Thanaka walked to the store to buy sodas. When they passed Xiong's house, Xiong and two other Asian males were in the front yard. Xiong and his friends mad-dogged Sa and his group as they passed Xiong's house. Later in the evening, while Sa sat on the pickup's tailgate, Xiong and two others approached the pickup from the direction of Xiong's house. The big guy was in front and the other two behind and to the side of him. Sa looked away because he did not want them to think he was mad-dogging them. One of the three asked if Sa, Kou, Cheng or Thanaka knew who sells "weed." Thanaka responded, "No." Suddenly, Sa heard gunshots. Sa was shot on his left side and fell to the ground behind the pickup. As a result of the shooting, Sa lost a kidney, some intestines and a bladder. He did not see who shot him. However, Sa was able to identify Xiong as one of the three because he saw part of Xiong's face when they first approached the pickup. He admitted withholding information from police out of fear regarding Xiong's participation in the shooting. He explained that he knew Xiong was a gang member and Sa was afraid.

Thanaka testified he first noticed Xiong and about six males across the street from Xiong's house just "hanging out" on the sidewalk about 2:00 p.m. Thanaka, Xay and the Hang brothers were outside Kou's house. When Thanaka would look over toward Xiong's group, he could see they were dogging Thanaka's group, so he quickly looked away. Thanaka knew Xiong's sister, and had been introduced to Xiong at Edison High School by his friend, Vee Xay Vue. Vue told Thanaka that Xiong was a member of MOD. Thanaka did not recall Xiong and his friends being in front of Xiong's house when they went to the store to buy sodas.

About 8:00 that evening, Xiong, Lee, and the big guy approached the pickup at Hang's house. The big guy was in front, followed by Lee and then Xiong. They were not in a row, but walking side by side, one behind the other. Thanaka could see the faces of the big guy and Lee when they passed under the street light. Because of his angle, Thanaka could not see Xiong's face but recognized his physique. He could see Xiong's left side and head, which had a blue bandana around it, but not his face. They stopped about four feet away from the pickup. Then the big guy asked if they knew anyone who sells marijuana. Thanaka turned to spit, turned back around, looked at them, and said, "No." He then saw the big guy pull out a semi-automatic handgun and shoot Cheng, who fell into the pickup bed. The big guy continued to shoot from left to right. Thanaka also saw Lee pull out a handgun, but did not get a chance to see if he fired it. Thanaka was shot in the left arm, and immediately hopped out of the pickup. However, as he tried to do so, he was shot on the right side and right buttocks. Thanaka crawled toward the gate behind Kou, and subsequently hid under the pickup.

Like Kou and Sa, Thanaka admitted...