People v. Vang CA3 ( 2021 )

Filed 2/24/21 P. v. Vang 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C081374
Plaintiff and Respondent, (Super. Ct. No. CM042013)
v.
KER VANG,
Defendant and Appellant.
Defendant Ker Vang shot at two vehicles from his vehicle while traveling on a
highway. A jury found defendant guilty of second degree murder of Jar Lee, attempted
murder of Cheng Thao, and various other assault-related crimes against Lee, Thao, and
two of their friends. The jury further found true various enhancement allegations,
including allegations that defendant personally used a firearm in the commission of the
offenses. The trial court sentenced defendant to the maximum term: a determinate term
of 21 years plus life, with a minimum parole eligibility of 65 years.
1
On appeal, defendant: (1) argues the trial court violated his constitutional right to
due process when it told the jury it could consider the prosecutor’s comment regarding a
possible witness’s failure to testify in assessing defendant’s guilt; (2) requests we review
an in camera hearing transcript in which the trial court denied defendant’s pretrial request
for identification of a confidential informant; (3) argues errors made by the trial court
with respect to the foregoing two arguments were cumulatively prejudicial; (4) argues we
must remand this case for resentencing to allow the trial court to exercise its discretion as
provided in recently enacted amendments to the law after judgment; and (5) argues the
second degree murder conviction as to Lee is inconsistent with the attempted murder
conviction as to Thao in violation of his due process rights.
We grant defendant’s request to review the transcript of the in camera hearing and
otherwise affirm the judgment, but remand for the trial court to exercise its discretion as
to whether to strike the enhancements imposed pursuant to Penal Code1
sections 12022.53 and 12022.5, which added 56 years and 8 months to his sentence,
pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.).
FACTUAL AND PROCEDURAL BACKGROUND
At trial, the People called as witnesses the three living victims and various
deputies/investigators involved in the case, including Butte County Sheriff’s Deputy
Silver Paley, who testified to an October 4, 2014, shooting and Hmong Nation Society
(Gang) activity in Chico.
I
The Gang Membership And Incident Preceding The Shooting
Deputy Paley, who previously worked in the gang unit of the Butte County
Sheriff’s Department, testified at trial that the Gang is a gang with active members in the
1 All further section references are to the Penal Code unless otherwise specified.
2
Oroville area; they consider the Oroville area their “turf.” Gang members are known to
commit various crimes, including assaults with a deadly weapon, murder, and drive-by
shootings.
On October 4, 2014, rival gang members from Yuba City showed up during a
Hmong New Year celebration in Chico, leading to a confrontation that ended in a
vehicle-to-vehicle shooting. During the shooting, one Gang member accidentally injured
another Gang member. Five Gang members were arrested as a result of the incident, but
no members of the rival gang were. Though defendant is not known to have been
personally involved in the incident, the incident would have had significance within the
Gang community in Oroville, because it was viewed as disrespectful for the other gang
members to show up in their area, and it made the Gang look weak when Gang members
were arrested while the other gang’s members were not. Defendant admits he is a
gangster and Paley believes defendant is an active participant in the Gang.
The shooting victims in this case do not appear to have any involvement in any
gang, though two of the victims have a distant cousin relationship with the Gang member
who was injured on October 4, 2014.
II
The Shooting And The Victims’ Injuries
In the early hours of October 6, 2014, brothers Long Yang and Kue Yang,2 Lee
and Thao were hanging out. They decided to go to the Yangs’ other brother’s home.
Long drove a silver truck, and Kue rode with him. Thao drove his white Honda
hatchback, and Lee rode with him. They stopped at a FoodMaxx to get some beer.
2 Due to the commonality of the Yang last name, we hereafter refer to Long Yang
and Kue Yang by their first names. We collectively refer to the brothers as the Yangs.
No disrespect is intended.
3
Video surveillance footage from the FoodMaxx parking lot shows defendant
exiting the FoodMaxx with an Asian woman, Lory Xiong, his girlfriend. Xiong and
defendant took their cart to a white Honda hatchback with a black hood that was parked
in the parking lot. While defendant was returning the shopping cart, Xiong got into the
driver’s side of the car, and Long’s truck and Thao’s Honda civic pulled into the lot.
Thao testified at trial that he noticed a car that looked like his, a white hatchback, in the
parking lot. Long got out of the truck and walked into the store as defendant returned to
his car and got into the passenger’s side. Defendant then stepped out of the passenger
side of his car, walked around the car, and got into the driver’s side. The video footage
does not show Xiong getting out of the car. After about a minute, defendant’s car left the
lot, driving past the truck and Thao’s car while tapping its brakes. Long left the store
approximately five minutes later, placed his purchases in the back of his truck, and got in
his truck to leave.
Long, Kue, Lee, and Thao then left the parking lot to continue to the Yangs’
brother’s home. They planned to travel on Highway 70 and exit on Grand. At trial, Thao
testified the car he had noticed in the parking lot, the white hatchback, was following
them as they left the lot and appeared to be stalking them. Long drove in front of Thao as
they entered the highway. They traveled north on the highway.
About the time they reached the Grand off-ramp, someone shot at Long and Kue.
They heard three gunshots and the driver’s side window of the truck shattered. Neither
was injured. The driver of the white car who was driving fast, cut them off, and left the
highway on Grand. Because Thao drove a white car and had been following them, at first
both brothers assumed the car that had cut them off had been Thao. Long pulled the
truck over and stopped near a taxi. Long got out of the truck to tell the taxi driver that
someone had shot at them; he saw bullet holes in the side of the truck.
At the scene of these events, Long spoke with Oroville Police Detective Shane
Carpenter and described leaving FoodMaxx, driving to and then traveling north onto
4
Highway 70, hearing gunshots and his driver’s window shattering, and then seeing a
white Civic speed past him on the Grand exit. Long also related these events to Butte
County Sheriff’s Detective Jason Miller later that day.
Thao testified he was driving when he heard a pounding noise and a screech. A
bullet went through his jaw. Thao noticed Lee had been shot and tried to communicate
with him, shaking and nudging him, but he received no response and heard Lee make a
gasp for air. Thao got in the fast lane and drove as fast as he could to a hospital in Chico.
At trial, Thao reported he did not see who shot him. However, Butte County
Deputy Sheriff’s Officer Miah Basden testified Thao told a different story in the hospital
on October 6, 2014. At the time of the hospital interview, Thao could not speak and
communicated with head nods. Another detective interviewed Thao while Basden
recorded the interview, and the recording was shared with the jury. According to Basden,
Thao indicated he did not know who shot him. However, he also indicated he had seen
the vehicle the shooter was in, and he indicated “no” when asked if the vehicle was a
truck, van, or sport utility vehicle. He indicated the shooter was in a white car, similar to
his, that the car had a black hood, and that it was the car he saw in the FoodMaxx parking
lot. He indicated the car had followed him from the FoodMaxx parking lot to Highway
70 and he recalled there being only one person in the car.
Thao had surgery to repair his jaw injury and remained in the hospital for two to
three weeks. He had to go to therapy to learn to speak again and could not eat a normal
diet for about month after he left the hospital. At the time of trial, he still felt numbness
in his jaw and had lost two teeth. Lee was injured by two bullets that entered on his left
-- the direction of the driver’s side -- and traveled right. The bullet that struck his chest
was nonlife threatening. The gunshot wound to Lee’s head killed him.
III
Defendant’s Versions Of The Events
At trial, the People presented defendant’s interview with law enforcement officers.
5
On October 6, 2014, Butte County Detectives Chris D’Amato and Rowdy
Freeman interviewed defendant at the main sheriff’s office.
Defendant initially told a story about going to FoodMaxx to get groceries with his
girlfriend at about 1:30 a.m., leaving the store, loading the groceries in the car, then
returning home. At first, he said nothing out of the ordinary occurred. He said it was a
normal shopping night and he took Highway 70 north home. Though Xiong was initially
going to drive home, they decided defendant would because she is not good with a stick
shift; so, she slid over and defendant got in the driver’s seat. When asked about the
shooting, defendant indicated he knew nothing about the shooting other than what he had
heard on the news or Facebook.
Later, defendant’s story changed. “He explained that he saw a vehicle, something
similar to a Honda Pilot, drive past him, come alongside the two victim vehicles, and
open fire on the vehicles.” He said he could smell the gunpowder from the gun and shell
casings were hitting his car. When asked, he insisted neither he nor Xiong was the
shooter.
A little over an hour into the interview, defendant’s story changed a second time.
He said that, while in the parking lot, he saw a group of Asian males and they gave him a
“gangster” look, but he continued to insist someone in a Honda, Pilot shot at the victims’
cars. Soon, however, he said he knew the driver of the Pilot. He said it was driven by
Yang Thao, a friend he had called to come check out the unfamiliar men -- the victims --
he saw in the FoodMaxx parking lot. As he told this version of events, defendant said he
was very worried about being labeled a snitch. Defendant said he was surprised when
Yang Thao shot at the victims’ cars, and he had not expected that to happen. Later, when
returning to this story, defendant said the driver of the Pilot was Steve Thao.
Eventually, defendant admitted to perpetrating the shooting and acknowledged
there was no Pilot. He said he originally fired three shots and then fired three more.
When asked why he shot the victims, defendant said he could not let people come into his
6
town and look at him like that, and rhetorically asked “what am I gangster for?”
Defendant, however, seemed unsure of what kind of gun he used. He said he threw the
gun out the window of his car near Oroville Dam.
Defendant eventually reversed his admission and returned to the story about
Steven Thao.
In all, defendant gave four fundamentally different versions of the events. First,
he went home and did not see anything. Second, he saw the shooting but had no part in
it. Third, he saw the victims and called someone to check on them; then, outside of his
control, that person shot the victims. Finally, defendant said he shot them.
The detectives repeatedly asked defendant if his girlfriend, Xiong, was the shooter
and he said she was not.
IV
Other Evidence
In addition to testifying to events they learned watching surveillance footage and
interviewing victims, investigators recounted some of the findings they made after
examining defendant’s car and cell phone. Jonathon Angle, an investigator for the Butte
County District Attorney’s Office, testified he was able to sit in the driver’s seat while an
evidence tech sat in the passenger seat with her seat down, and with his left hand on the
lower part of the steering wheel and his foot on the gas, he was able to lean with his
handgun pointed out the window of the car. Brady Spas, a senior criminalist with the
Department of Justice Crime Laboratories in Chico, testified the samples she took from
the car did not indicate the presence of gun residue, but she said she would not expect to
find residue in a car when a gun is fired out of the window while traveling 60 miles per
hour, because any residue from the gun would likely blow away. Detective D’Amato
testified he checked defendant’s phone and did not see any calls made between 1 a.m.
and 2 a.m. on October 6, 2014. He also looked for text messages and did not find any.
7
The defense called Annedore Rubalcava, who reported she was driving home
around 2 a.m. on October 6, 2014, when she heard “bam, bam, bam” and saw flashes
coming from the vicinity of a vehicle that was perhaps a van or sport utility vehicle and
was “silverish.” The defense also called Stephanie Guyer, who was the cab driver who
pulled over and interacted with the Yangs. She indicated that when she was pulled over,
she saw a white car get off the freeway, and a gray car akin to a sport utility vehicle pass
by as she spoke to Long. The defense also called Dr. Paul Good, a clinical and forensic
psychologist, who testified about various factors that may have led defendant to give a
false confession when detectives interviewed him.
Neither party called Xiong as a witness.
V
Charges Against Defendant
The People charged defendant with murder of Lee, attempted murder of Thao,
three counts of assault with a firearm for firing at Thao and the Yangs, and two counts of
shooting at an occupied vehicle. Appended to the murder and attempted murder counts
were allegations that defendant personally and intentionally discharged a firearm, causing
great bodily harm or death pursuant to section 12022.53, subdivision (d), and
section 12022.53 enhancements with lesser sentences.
Appended to the attempted murder and assault with firearm charges as to Thao
were enhancement allegations that defendant’s actions caused Thao great bodily injury
pursuant to section 12022.7, subdivision (a). Appended to all charges except the two for
shooting at an occupied vehicle, were enhancement allegations that in committing the
crimes, defendant personally used a firearm, as defined in sections 1203.6,
subdivision (a)(1), and 12022.5, subdivision (a). Appended to all charges except the
murder and attempted murder charges were enhancement allegations that alleged
defendant committed the crimes for the benefit of a criminal street gang. With respect to
8
the murder charge, the court instructed the jury that if it found defendant not guilty of
first degree murder, it could find him guilty of second degree murder.
VI
The Verdicts And Sentencing
The jury found defendant guilty on every charge, though on the murder charge, it
found him not guilty of first degree murder but guilty of second degree murder, and it
found all alleged enhancements true. Defendant filed a motion for retrial, which was
denied. The court pronounced its judgment and sentence on February 11, 2016.
With respect to the victims in Thao’s car, the trial court sentenced defendant to 15
years to life on the second degree murder count, with an enhancement of 25 years to life
for the section 12022.53, subdivision (d) finding, and stayed any lesser enhancements, for
a total of 40 years to life. The court then imposed the upper term on all other determinate
charges. The court sentenced defendant to nine years for the attempted murder of Thao,
with an enhancement of 25 years to life for the section 12022.53, subdivision (d), finding,
and stayed any lesser enhancements for a determinate term of nine years plus life, with a
minimum parole eligibility at 25 years. The court then stayed the additional counts -- one
for assault with a firearm and one for shooting at a moving vehicle -- with respect to the
victims in Thao’s car pursuant to section 654, subdivision (a).
With respect to the Longs, on both assault charges, the court sentenced defendant
to the subordinate term of one year, three years and four months for the firearm
enhancement pursuant to section 12022.5, and one year and four months for the street
terrorism enhancement, for an aggregate determinate sentence of six years for each
victim, or 12 years for both. The court then stayed the assault with a firearm count as to
the Yangs pursuant to section 654, subdivision (a).
In total, the court sentenced defendant to 21 years on the determinate term plus life
with a minimum parole eligibility of 65 years.
9
At the sentencing hearing, the court observed that defendant was statutorily
ineligible for probation, but that even if he “were eligible for a grant of probation, he
would not be considered a suitable candidate. The Defendant used a weapon against
particularly vulnerable victims during the commission of the offense. He was an active
participant in the crime. The offense was committed in the furtherance of a criminal
street gang. By virtue of his conduct in this case, the Defendant has revealed himself to
be a violent, dangerous individual who, if not incarcerated, would be a danger and pose a
threat to our community.”
Additionally, in reaching the term for the determinate counts, other than murder,
the court stated, “[i]t is noted the Defendant has no prior record of criminal convictions.
However, the Defendant’s actions involved great violence and a high degree of
callousness. The Defendant fired multiple rounds from his moving vehicle toward the
victims’ moving vehicles. There were at least two other vehicles on the freeway at the
time of the shooting, one of which was a taxi transporting passengers. Those innocent
motorists were subject to being struck by stray and ricocheted bullets, as well as
potentially being injured if the victims had lost control of their vehicles due to their
injuries. As such, the Defendant’s actions posed a danger, and showed a general
disregard for the lives of not only the direct victims, but the general public as well.
“The drivers of the two cars, Mr. Thao and Long Yang, would be considered
particularly vulnerable in that they were drivers and were traveling on the freeway at the
time of the shooting at a high rate speed. They had a limited ability to take evasive action
to avoid the shooting or to defend themselves. All of these victims are considered
vulnerable. And none of them had engaged in any conflict with the Defendant prior to
the offenses, and were likely taken by surprise when he began shooting at them.
“The Defendant’s decision-making with regard to this matter, particularly his
willingness to shoot at strangers based upon perceived disrespect, or his incorrect
assumption that they were rival gang members, indicate that this Defendant is a danger to
10
society if he is not incarcerated. Given those factors, an upper term on all the
determinant charges appears to be appropriate.”
Defendant timely filed this appeal.
DISCUSSION
I
The Trial Court Did Not Err In Correcting Its Ruling On The
Defense Objection To Statements Made During The People’s Rebuttal
In closing argument, the People said, “this case was about a man who viewed the
world through gang goggles. What we are referring to . . . is how the defendant’s gang
involvement shapes his perceptions. [¶] What happened that night is he has this
perception that the young men who were hurt in this case, the . . . young men who were
shot at in this case, were involved in a rival gang because he didn’t recognize them. And
he acts on that assumption. [¶] He acts like a predator. He waits for them. He follows
them. And then, when the time is right, he pounces and launches his attack.” The People
then reviewed the evidence presented and argued how it had proven their case.
In response, the defense argued nothing the prosecution had offered proved
defendant was the shooter. More specifically, the defense noted that two witnesses at
trial, and defendant during his interview, made reference to seeing some type of silver
Honda Pilot, van, or sport utility vehicle either as the source of the shooting or on
Highway 70 that night. The defense noted that even if the jury were to accept the shooter
was in “the car with the black hood[, w]ell we know there were two people in that car.
And we know that there’s no gunshot residue in that car. [¶] Now the explanation about
the hand being out the window, I submit to you, most logically for that to be true, if that
were the case, a passenger would be the shooter. And we know there were two people in
that vehicle.” The defense argued that to the extent defendant confessed to the crimes
during his interview, that confession had been false or coerced.
11
In rebuttal, the People addressed the defense’s suggestion that Xiong may have
been the shooter: “There was a suggestion by the defense that Lory’s the shooter. Well,
that completely contradicts what Mr. Vang said. Mr. Vang said she’s not. [¶] And the
one thing that I was wondering in this case is the defense elected to put a defense on.
That’s fine. They called Mr. Good. That’s fine. They called people who saw portions of
this shooting. They never called Lory, defendant’s girlfriend.” The defense objected to
this stating, “[t]hat’s burden shifting.”
The court initially sustained the objection and instructed the jury, “[y]ou’ll ignore
that statement.” Immediately thereafter, the People asked to be heard on the court’s
ruling on the objection, and the court called the attorneys to the bench for a conference.
The People argued, “[i]t’s not burden-shifting. It’s pointing out failure to call a logical
witness. The defendant in his own interview says, ‘[m]y only witness is Lory.’ [¶] They
have elected not to call her.” When the court indicated it would reverse its ruling, the
People said, “I request you simply instruct the jury you reverse the ruling and they can
consider it.”
The court then instructed the jury, “I had ruled the objection was sustained. I’m
now reversing that ruling. [¶] You may consider the fact that Lory did not testify.”
Later, outside the presence of the jury, the court clarified its ruling on the objection was
“based upon the fact that the defense brought up the issue that Lory was the shooter or
suggested to the jury that Lory was the shooter.”
Defendant argues the trial court violated his Fourteenth Amendment due process
rights by “[s]ingling out Lory Xiong’s [f]ailure to [t]estify as a [f]act [t]hat the [j]ury
[c]ould [c]onsider in [a]ssessing [defendant’s g]uilt.” We disagree.
Defendant is not asking this court to find that the trial court’s ruling was wrong;
instead, defendant takes the position that the comment is effectively a jury instruction and
because the court “made no similar remark about any missing prosecution witness or
evidence,” it was “singling out [Xiong’s] missing testimony” and “conveyed the message
12
that the defense’s failure to call her was a uniquely important deficit in the case.” But in
advancing this argument, defendant expects us to consider the court’s statement outside
the context within which it was made. The defense suggested in argument that
defendant’s passenger, Xiong, may have been the shooter. When the prosecutor met that
argument by asking rhetorically why, if that were so, the defense did not call her as a
witness, defendant elected to object to the People’s argument. The court said, “[y]ou’ll
ignore that statement,” when it sustained the objection, and when it reversed itself it
indicated its final ruling was the reverse of what it had been, i.e., that the jury was not
required to ignore that Xiong did not testify.
The court was not “singling out” the absence of Xiong’s testimony as compared to
other potential witnesses in the case that the prosecution might have called, it was doing
no more than allowing the prosecution to fairly meet defendant’s argument. Defendant
raised the issue of Xiong’s involvement, if any, in the shooting and the prosecutor was
merely pointing out an arguable weakness in the theory defendant was arguing.
There was no error.
II
The Confidential Informant’s Identity
Defendant requests we review the in camera trial court proceedings regarding
defendant’s pretrial motion to obtain the identity of a confidential informant. The People
agree the review is appropriate. We grant defendant’s request and, having reviewed the
transcript of the hearing, we conclude the trial court acted within its discretion in denying
the motion.
A
Additional Facts
The jury trial in this case began on November 2, 2015. On September 8, 2015,
roughly two months prior to the start of trial, the People supplied defendant’s counsel
with discovery packets. One of the packets contained a report prepared by Deputy Paley.
13
According to the report, Deputy Paley had had multiple conversations with a
confidential informant who claimed to have a close relationship with Gang members in
the Oroville area. The confidential informant told Deputy Paley he/she had heard that
defendant was not the only individual involved in the shootings at issue in this case, and
two other individuals, S. V. and F. X., had also been involved in the crime. The
confidential informant said he/she had heard S. V. was the driver of an additional vehicle
involved in the shooting, while F. X. was the front-seat passenger. The confidential
informant indicated he/she had heard thirdhand that F. X. may have been the shooter
from S. V.’s vehicle. The confidential informant could not identify the person from
whom he/she had received this information; indeed, he/she could provide no further
information, and said he/she had no personal knowledge of the incident. Rather, the
confidential informant said the information had been circulated at the street level by
Gang members. Deputy Paley was familiar with F. X. and indicated in his report that
F. X. is a documented Gang member, and the confidential informant told Deputy Paley
that S. V. is a gang member as well.
During a traffic stop, Deputy Paley located S. V., who had attempted to conceal
his identity by giving a false name. S. V. admitted to trying to conceal his name, but
would not explain why he had done so. Deputy Paley spoke with S. V. about the murder
investigation at issue in this case, and S. V. denied any involvement in the crime. S. V.
denied knowing who F. X., defendant, and Xiong were, and he was otherwise “very
uncooperative.” S. V. said he was homeless and could not be reached at any given
address.
After receiving the information about S. V. and F. X., defendant filed a motion to
require the People to disclose the identity of the confidential informant or to dismiss the
charges against defendant. Defendant argued the confidential informant was a material
witness on the issue of guilt or innocence in the matter and there was a reasonable
probability nondisclosure of his/her identity would deprive defendant of a fair trial.
14
In their opposition, the People said an officer having work done on his personal
vehicle was told by the shop owner that he had heard S. V. was the gunman and drives a
silver Pilot. Another investigator later spoke with the shop owner, who told him the same
thing, and the shop owner said had heard the story “on the street.”
Following an initial hearing by the parties on the motion to disclose, the trial court
set an in camera hearing. Deputy District Attorney Mark Murphy, Deputy Paley, and
court staff appeared at the hearing. The court denied the motion.
B
The Trial Court Did Not Abuse Its Discretion In Denying The Motion To Disclose
Evidence Code section 1041, subdivision (a)(2), grants the government a privilege
not to disclose the identity of a confidential informant when “the necessity for preserving
the confidentiality of [the informer’s] identity outweighs the necessity for disclosure in
the interest of justice.” Under Evidence Code section 1041, the state’s interest in
preserving confidentiality must be balanced against the defendant’s right to due process
and a fair trial. (People v. Lee (1985) 164 Cal.App.3d 830, 835.) That balance hinges on
whether the informant is a potential material witness on the issue of guilt. (People v.
Bradley (2017) 7 Cal.App.5th 607, 626)
As we laid out in Bradley, “[t]he trial court determines an informant’s materiality
pursuant to procedures provided by [Evidence Code] section 1042. That statute requires
a court to convene a hearing outside the presence of the jury on a party’s demand for
disclosure of an informant’s identity. If, during the hearing, the People claim the
nondisclosure privilege or a person authorized to claim the privilege refuses to answer
any questions because the answer might disclose an informant’s identity, the prosecution
may request the court to convene an in camera hearing. At that hearing, the prosecution
may offer evidence that discloses the informant’s identity ‘to aid the court in its
determination whether there is a reasonable possibility that nondisclosure might deprive
the defendant of a fair trial.’ ([Evid. Code,] § 1042, subd. (d).)
15
“After the hearings, the court ‘shall not order disclosure, nor strike the testimony
of the witness who invokes the privilege, nor dismiss the criminal proceeding, if the party
offering the witness refuses to disclose the identity of the informant, unless, based upon
the evidence presented at . . . [the hearings], the court concludes that there is a reasonable
possibility that nondisclosure might deprive the defendant of a fair trial.’ ([Evid. Code,]
§ 1042, subd. (d).) ‘[W]hen an in camera hearing has been held and the trial court has
reasonably concluded, as in the instant case, that the informant does not have knowledge
of facts that would tend to exculpate the defendant, disclosure of the identity of the
informer is prohibited by . . . [Evidence Code] section 1042, subdivision (d), since the
public entity has invoked the privilege pursuant to [Evidence Code] section 1041.’ ”
(People v. Bradley, supra, 7 Cal.App.5th at pp. 620-621.)
The trial court complied with Evidence Code section 1042’s procedures. Thus, as
in Bradley, we “are concerned only with the court’s decision.” (People v. Bradley, supra,
7 Cal.App.5th at p. 621.) In Bradley we said that, in these instances, we “review the trial
court’s ruling for an abuse of discretion.” (Ibid.) Citing decisions preceding Bradley,
defendant argues we should instead apply de novo review. For the reasons set forth in
Bradley, we agree the proper standard of review is abuse of discretion.
Applying the abuse of discretion standard articulated in Bradley, we find no error.
The confidential informant was not a percipient witness and could not provide any
information to the defense that was not already known on the street and, more
importantly, known to the defense. The confidential informant did not have any further
exculpatory information. Indeed, the confidential informant was unable to identify the
source of the information he/she provided and indicated anything he/she had heard
simply came from the rumor mill among the Gang community.
16
III
There Is No Cumulative Prejudice
Defendant argues the preceding purported errors permeated his trial and “the
combined effect of the errors was prejudicial under any standard,” requiring reversal of
his convictions. “Under the ‘cumulative error’ doctrine, errors that are individually
harmless may nevertheless have a cumulative effect that is prejudicial.” (In re Avena
(1996) 12 Cal.4th 694, 772, fn. 32.) Because we concluded no error occurred with regard
to defendant’s preceding arguments, there was no cumulative error.
IV
Remand Is Appropriate For The Trial Court To Exercise Its Discretion
Under Postjudgment Amendments To Sentencing Statutes
Defendant argues we must remand this case to allow the trial court to exercise its
discretion whether to strike the sections 12022.53 and 12022.5 firearm enhancements
imposed, because the law imposing those enhancements was amended after judgment to
allow trial courts to exercise such discretion, and the amended law applies retroactively to
the sentence imposed in this case. These sentence enhancements -- two 25-year terms
under section 12022.53, subdivision (d) and two three-year-and-four-month terms under
section 12022.5 -- account for 56 years and eight months of defendant’s sentence before
he would be eligible for parole.
The People agree the amended statutes apply retroactively in this case but contend
that remand in not necessary because there is nothing in the record to suggest the trial
court would exercise its discretion to strike the enhancements if given the opportunity to
do so. We agree with the parties that the statutes apply retroactively; we further agree
with defendant that he should be given the opportunity to present his arguments to the
trial court on remand.
17
A
The Amended Statutes Apply Retroactively
Section 12022.53, subdivision (d), adds a 25-year consecutive prison term to the
sentence of any person who, during the commission of a murder or attempted murder,
“personally and intentionally discharges a firearm and proximately causes great bodily
injury, as defined in Section 12022.7, or death, to any person other than an accomplice.”
Likewise, section 12022.5, subdivision (a), adds additional time to the sentence of a
person convicted of a felony when it is found true that the person personally used a
firearm in the commission of the felony.
When the trial court entered judgment in this matter, it had no discretion to strike
enhancements imposed pursuant to sections 12022.5 and 12022.53. (See former
§ 12022.5, subd. (c), as added by Stats. 2010, ch. 711, § 5 [“Notwithstanding
Section 1385 or any other provisions of law, the court shall not strike an allegation under
this section or a finding bringing a person within the provisions of this section”]; former
§ 12022.53, subd. (h), as added by Stats. 2010, ch. 711, § 5 [same].)
After the trial court sentenced defendant, the Legislature amended
sections 12022.5, subdivision (c), and 12022.53, subdivision (h), via Senate Bill No. 620
to allow a trial court to, “in the interest of justice pursuant to Section 1385 and at the time
of sentencing, strike or dismiss an enhancement” that either statute required. (See Stats.
2017, ch. 682, §§ 1, 2.) The authority to strike or dismiss a finding that a person used a
firearm in the commission of an offense extends to “any resentencing that may occur
pursuant to any other law.” (§§ 12022.5, subd. (c), 12022.53, subd. (h).)
As articulated by our Supreme Court in In re Estrada (1965) 63 Cal.2d 740, 742,
when a statute is amended that mitigates a punishment after the prohibited act is
committed but before final judgment, the “punishment provided by the amendatory act
should be imposed.” In People v. Francis (1969) 71 Cal.2d 66, 76, our Supreme Court
applied Estrada to circumstances in which “the amendment does not revoke one penalty
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and provide for a lesser one but rather vests in the trial court discretion to impose either
the same penalty as under the former law or a lesser penalty.” In Francis, our Supreme
Court also clarified that an amended penalty statute applies in instances in which the
amendment occurred after sentencing in the trial court but before the case was resolved
on appeal. (Francis, at p. 77.)
Here, the amendments to subdivision (c) of section 12022.5 and subdivision (h) of
section 12022.53 “necessarily reflect[] a legislative determination that the previous bar on
striking firearm enhancements was too severe, and that trial courts should instead have
the power to strike those enhancements in the interest of justice.” (People v. Woods
(2018) 19 Cal.App.5th 1080, 1091.) Additionally, “because there is nothing in the
amendment to suggest any legislative intent that the amendment would apply
prospectively only, we must presume that the Legislature intended the amendment to
apply to every case to which it constitutionally could apply . . . .” (Ibid.)
B
On These Facts, Remand Is Appropriate
A finding that amended sentencing provisions apply retroactively, “is not the end
of the matter. We are not required to remand to allow the court to exercise its discretion
if ‘the record shows that the trial court clearly indicated when it originally sentenced the
defendant that it would not in any event have stricken [the] . . . enhancement’ even if it
had the discretion.” (People v. Jones (2019) 32 Cal.App.5th 267, 272-273.) On the facts
of this case, we find no such clear indication and conclude, particularly given defendant
had no prior convictions and the enhancements added over 50 years to defendant’s
sentence, remand is appropriate to allow defendant an opportunity to present his
arguments to the trial court for consideration.
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V
The Second Degree Murder And Attempted Murder Convictions Are Not Inconsistent
In a supplemental brief, defendant argues that the jury’s findings that
(1) defendant was guilty of the second degree rather than first degree murder of Lee, and
(2) defendant was guilty of the attempted murder of Thao are logically inconsistent, and
therefore, violate his Fourteenth Amendment rights.
Defendant’s reasoning is essentially as follows: a first degree murder conviction
requires a jury finding of an intent to kill, but a second degree murder conviction does
not. To convict a defendant of attempted murder, a jury must find the defendant had a
specific intent to kill. Defendant reasons that in finding him guilty of “only second-
degree murder” it is “apparent that the jury found that defendant did not intend to kill.
Otherwise, the jury would have concluded that he was guilty of first-degree murder.” As
such, defendant reasons, in reaching its conclusions under these facts as to the charges
regarding the murder of Lee and the attempted murder of Thao, who were riding in the
same vehicle, the jury reached inconsistent conclusions -- that he did not intend to kill
Lee, the murder victim, but did intend to kill Thao, the attempted murder victim, and,
therefore, defendant was denied his Fourteenth Amendment rights to due process.
This argument is entirely unpersuasive. To begin with, even assuming that the
jury did find defendant did not intend to kill Thao but did intend to kill Lee, the verdict
would not be inconsistent.
The case defendant relies on for the proposition that two inconsistent guilty
verdicts cannot stand, Masoner v. Thurman (9th Cir. 1993) 996 F.2d 1003, is of no aid to
him. In Masoner, the court said, “[w]e hold that a due process challenge to a jury verdict
on the ground that convictions of multiple counts are inconsistent with one another will
not be considered if the defendant cannot demonstrate that the challenged verdicts are
necessarily logically inconsistent. If based on the evidence presented to the jury any
rational fact finder could have found a consistent set of facts supporting both convictions,
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due process does not require that the convictions be vacated.” (Id. at p. 1005, italics
added.)
Here, a rational trier of fact could have found that the People were able to prove
defendant specifically intended to kill the driver of the car (Thao) who would have been
closer to him and an easier target for bullets aimed at the driver’s side of the car and was
thus guilty of the attempted murder of Thao, but did not at the time of the shooting intend
to kill the passenger (Lee) and was thus guilty only of second degree murder in the killing
of Lee. The second degree murder verdict and attempted murder verdict were not
inconsistent.
DISPOSITION
The case is remanded to allow the trial court to exercise its discretion in light of
Senate Bill No. 620’s amendments to sections 12022.5, subdivision (c), and 12022.53,
subdivision (h). (Stats. 2017, ch. 682, §§ 1-2). The judgment is otherwise affirmed.
/s/
Robie, J.
I concur:
/s/
Renner, J.
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Hull, A.P.J. Concurring and dissenting.
I concur in Parts I, II, III, IV(A), and V of the Discussion. I dissent as to Part
IV(B).
In my view, this record demonstrates that remanding the matter to the trial court to
exercise its discretion to reduce defendant’s sentence is a needless waste of judicial
resources and the attendant other costs of remand including, perhaps most importantly,
the likelihood the victims of defendant’s violent crimes and their loved ones will want to
attend the resentencing thus causing them to re-live the pain of their losses. Remand is
simply not required by the law because “ ‘the record shows that the trial court clearly
indicated when it originally sentenced the defendant that it would not in any event have
stricken [the] . . . enhancement’ even if it had the discretion. (People v. McDaniels
(2018) 22 Cal.App.5th 420, 425.)” (People v. Jones (2019) 32 Cal.App.5th 267, 272-273
(Jones).)
“The trial court need not have specifically stated at sentencing it would not strike
the enhancement if it had the discretion to do so. Rather, we review the trial court’s
statements and sentencing decisions to infer what its intent would have been.” (Jones,
supra, 32 Cal.App.5th at p. 273.)
Prior to sentencing the trial judge received a probation report that stated, in part, as
follows:
Regarding Count I of the complaint alleging second degree murder, after noting
defendant was statutorily ineligible for a grant of probation and that, even if eligible, he
was not a suitable candidate for probation, the report said: “The defendant used a
weapon against particularly vulnerable victims during the commission of the offense. He
was an active participant in the crime. This offense was committed in furtherance of a
criminal street gang. By virtue of his conduct in this case, the defendant has revealed
himself to be a violent and dangerous individual who, if not incarcerated, will pose a
threat to the community.” (Emphasis added.)
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Turning to the appropriate sentence for the determinant counts, the report, in
addressing the question of aggravation and mitigation, said: “It is noted that defendant
has no prior record of criminal convictions. However, the defendant’s actions involved
great violence and a high degree of callousness. The defendant fired multiple rounds
from his moving vehicle toward the victim’s moving vehicles. There were at least two
other vehicles on the freeway at the time of the shooting, one of which was a taxi
transporting passengers. Those innocent motorists were subject to being struck by
stray/ricocheted bullets, as well as potentially being injured if the victims lost control of
their vehicles due to their injuries. As such, the defendant’s actions both endangered and
showed a general disregard for the lives of not only the direct victims, but the general
public as well. Mr. [T.] and [L.Y.] could be considered particularly vulnerable in that
they were the drivers of their respective vehicles and were traveling on the freeway at the
time of the shooting. They had limited ability to take evasive action to avoid the shooting
or to defend themselves. All of the victims are considered vulnerable in that they had not
engaged in a conflict with the defendant prior to the offense and were likely taken by
surprise when he began shooting at them. The defendant’s decision-making with regard
to this matter, particularly his willingness to shoot strangers based upon perceived
disrespect and/or his incorrect assumption they were rival gang members, indicate the
defendant presents a serious danger to society if he is not incarcerated. Given these
factors, the upper term appears appropriate.” (Emphasis added.)
Prior to the trial court rendering its sentence in this matter, the People argued:
“One of the things that is remarkable about this case is what just an utter waste it
is. You have the two primary victims in this case, two young men who were both going
to college. Mr. [J.L.] was going to Butte College. Mr. [C.T.] was going to CSUC and
doing everything that one would hope a young person would do to better their lives and
to make more of themselves.
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“Neither of those gentlemen have any gang ties, neither of the other two victims
have any gang ties. And yet it appears that the loss, obviously, of Mr. [J.L.] is a loss of a
very beloved young man. A very promising young man. The injuries that Mr. [C.T.]
suffered were very significant. They had a significant disruption of his life where he had
to drop out of school and undergo a significant period of rehabilitation.
“And when you look at the harm that the Defendant inflicted, and you have to ask
for what? And the bottom-line answer of that is the Defendant made an assumption. He
assumed that the people he was shooting at were rival gang members, and he was wrong.
And his actions caused -- the significant harm that he has inflicted are now going to bring
a significant sentence.”
Prior to announcing defendant’s sentence and after noting it had read the probation
officer’s report dated January 21, 2016, the trial court, adopting in whole the statements
regarding sentencing set forth in the probation report, said:
“In this matter the Defendant, a documented Hmong National -- excuse me.
Hmong Nation Society criminal street gang member, observed the victims sitting in their
vehicles in the FoodMaxx parking lot. Video surveillance from the store shows the
Defendant driving by the victims’ vehicles and waving as he passed them. The
Defendant later advised the detectives that he did not recognize the victims and felt that
they were looking at him in a disrespectful manner. The Defendant followed the victims
onto the freeway, at which time he pulled up next to them and shot several rounds at their
vehicles. The driver of one of the vehicles, [C.T.], received a gunshot wound to the face,
resulting in a fractured mandible and lacerations. His passenger, [J.L.], was shot in the
head and chest. Mr. [T.] was able to continue driving his vehicle to Enloe Hospital in
Chico where he underwent surgical intervention to repair his fractured mandible. Efforts
to revive Mr. [L.] were unsuccessful, and he ultimately died as a result of the injuries to
his brain.
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“The driver and the passenger of the second vehicle, [L.] and [K.Y.], were
uninjured. However, bullets were recovered from both the driver and passenger sides of
the vehicle. During the interview with the detectives, Defendant provided various
accounts of the events, vacillating between denying any involvement in the shooting, to
witnessing the shooting as a bystander, to placing a telephone call to a friend which
ultimately resulted in the shooting, to admitting that he perpetrated the shooting. The
Defendant opted not to participate, apparently, in the probation review.
“Pursuant to 12022.5(g) and 1203.06(a) (1) of the Criminal Code, the Defendant is
statutorily ineligible for a grant of probation, as he personally used a firearm to commit
murder.
“Even if the Defendant were eligible for a grant of probation, he would not be
considered a suitable candidate. The Defendant used a weapon against particularly
vulnerable victims during the commission of the offense. He was an active participant in
the crime. The offense was committed in the furtherance of a criminal street gang. By
virtue of his conduct in this case, the Defendant has revealed himself to be a violent,
dangerous individual who, if not incarcerated, would be a danger and pose a threat to
our community. (Emphasis added.) ¶ . . . ¶
“In determining the appropriate term of incarceration for the remaining
determinant counts, circumstances denying probation in mitigation [sic] have been
examined pursuant to Rules of Court 4.421 and 4. 423. It is noted the Defendant has no
prior record of criminal convictions. However, the Defendant’s actions involved great
violence and a high degree of callousness. The Defendant fired multiple rounds from his
moving vehicle toward the victims’ moving vehicles. There were at least two other
vehicles on the freeway at the time of the shooting, one of which was a taxi transporting
passengers. Those innocent motorists were subject to being struck by stray and
ricochetted [sic] bullets, as well as potentially being injured if the victims had lost control
of their vehicles due to their injuries. As such, the Defendant’s actions posed a danger,
4
and showed a general disregard for the lives of not only the direct victims, but the general
public as well.
“The drivers of the two cars, Mr. [T.] and [L.Y.], would be considered particularly
vulnerable in that they were drivers and were traveling on the freeway at the time of the
shooting at a high rate speed. They had a limited ability to take evasive action to avoid
the shooting or to defend themselves. All of the victims are considered vulnerable. And
none of them had engaged in any conflict with the Defendant prior to the offenses, and
were likely taken by surprise when he began shooting at them.
“The Defendant’s decision-making with regard to this matter, particularly his
willingness to shoot at strangers based upon perceived disrespect, or his incorrect
assumption that they were rival gang members, indicate that this Defendant is a danger to
society if he is not incarcerated. Given those factors, an upper term on all the
determinant charges appears to be appropriate.” (Emphasis added.)
Shortly after making these remarks, the trial judge sentenced the defendant to the
maximum term allowed under the law: a determinate term of 21 years in prison plus life
with a minimum parole eligibility of 65 years.
One must keep in mind the question before us. The immediate question is not
whether the trial judge, knowing he or she now has the discretion to do so, would render
a different sentence today given the passage of time and and/or factors not before him or
her at the time of the original sentencing. After all, if that were the question, in cases
such as these we would be required to remand the matter for resentencing no matter what
the trial judge said at the time of the original sentencing. If that were the question, the
law would basically be sanctioning two sentencing proceedings conducted years apart
perhaps presenting different circumstances.
Rather, the question is whether “ ‘the record shows that the trial court clearly
indicated when it originally sentenced the defendant that it would not in any event have
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stricken [the] . . . enhancement’ even if it had the discretion.” (Jones, supra,
32 Cal.App.5th at pp. 272-273 (emphasis added).)
Given that which was before the trial court when the defendant was sentenced, and
particularly the trial judge’s remarks in announcing the judge’s sentence, I can only
conclude that the record shows that trial judge would not have stricken either or both of
the enhancements at issue if he had known he had the discretion to do so.
On this record, I would not remand the matter to the trial court for resentencing.
/s/
HULL, A.P.J.
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