People v. Phabmixay CA4/3 ( 2020 )

Filed 11/25/20 P. v. Phabmixay CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G058260
v. (Super. Ct. No. 14CF0907)
JUSTIN PHABMIXAY et al., OPINION
Defendants and Appellants.
Appeal from judgments of the Superior Court of Orange County, Michael
A. Leversen, Judge. Affirmed in part and reversed in part.
Jean Matulis, under appointment by the Court of Appeal, for Defendant and
Appellant Justin Phabmixay.
Thomas Owen, under appointment by the Court of Appeal, for Defendant
and Appellant Michael Tran Nguyen.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina,
Annie Featherman Fraser and Christine Levingston Bergman, Deputy Attorneys General,
for Plaintiff and Respondent.
Michael Tran Nguyen and Justin Phabmixay appeal from judgments after a
jury convicted them of offenses related to an armed robbery. Nguyen argues the
following: (1) the trial court erred by denying his motion to sever and bifurcate the gang
offense and enhancements; (2) insufficient evidence supports the gang enhancements;
(3) his trial counsel was deficient by failing to file a motion to dismiss the gang
enhancements; and (4) this court should independently review the court’s ruling on his
motion to disclose peace officer personnel records. Phabmixay raises the same
contentions plus one additional claim—the trial court erred by admitting Nguyen’s
statements.
As we explain below, because insufficient evidence supports the gang
enhancements, we need not address their ineffective assistance of counsel claims.
Additionally, any error in failing to bifurcate the gang enhancements did not prejudice
them. Finally, the court did not abuse its discretion by denying their motions to disclose
peace officer personnel records. We reverse the jury’s finding on the gang enhancements
as to count 4 and 6 for both Phabmixay and Nguyen. In all other respects, we affirm the
judgments.
FACTS
An information charged Nguyen and Phabmixay with the following:
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kidnapping during the commission of carjacking (Pen. Code, § 209.5, subd. (a), count
1); carjacking (§ 215, subd. (a), count 2); kidnapping to commit robbery (§ 209, subd.
(b)(1), count 3); second degree robbery (§§ 211, 212.5, subd. (c), count 4); kidnapping
(§ 207, subd. (a), count 5); possession of a firearm by a felon (§ 29800, subd. (a)(1),
count 6); evading while driving recklessly (Veh. Code, § 2800.2, count 7); and street
terrorism (§ 186.22, subd. (a), count 8). The information alleged they personally used a
firearm (§ 12022.53, subd. (b)), as to counts 1, 2, 3, 4, and 5, and they acted to benefit a
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All further statutory references are to the Penal Code, unless otherwise
indicated.
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criminal street gang (§ 186.22, subd. (b)(1)), as to all counts except count 8. The
information further alleged Phabmixay suffered two prior serious or violent felony
convictions (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A)), and one prior
serious felony conviction (§ 667, subd. (a)(1)). The information alleged Nguyen suffered
two prior serious and violent felony convictions (§§ 667, subds. (d), (e)(2)(A), 1170.12,
subds. (b), (c)(2)(A)), two prior serious felony convictions (§ 667, subd. (a)(1)), and one
prior prison term (§ 667.5, subd. (b)).
I. Prosecution Evidence
A. Offense Evidence
Around 1:00 a.m. one morning, Roberto V. withdrew $500 from the bank.
He added the $500 to the $2,000 that was in his car’s center console. As he was driving
home in an area known for prostitution, his car began making a knocking noise, so he
turned onto a residential street and parked.
A few minutes later, a black truck drove and stopped next to Roberto’s car.
Roberto believed there were three people in the truck. Roberto tried to drive away, but
the truck moved forward and blocked his car.
Phabmixay got out of the truck’s passenger side, walked towards Roberto,
and pointed a handgun at him while covering his face with a bandana. Nguyen also got
out of the truck’s passenger side, went to the front of Roberto’s car, and pointed an “Uzi”
or similar looking semi-automatic weapon at him.
Phabmixay told Roberto to give him money. After Roberto denied having
any money, Phabmixay got into the front passenger seat while pointing the gun at him.
Nguyen got into the truck. Phabmixay told Roberto to drive, which he did, and the truck
followed.
A short distance later, Phabmixay told Roberto to stop his car. Phabmixay
found $2,500 in the center console, and he took it. Phabmixay removed the bandana
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from his face and put the money in it. Phabmixay got out of the car, told Roberto to give
him the car keys, threw the bandana on the ground, and got into the truck.
The truck’s driver fled, but minutes later, the truck returned, and the three
men laughed at Roberto, who demanded they return his car key. The three men again left
in the truck. Roberto walked to a nearby restaurant to call 911. The Santa Nita criminal
street gang claimed the territory where the men robbed Roberto.
Officers located the truck in a nearby parking lot and ordered the men to get
out. One officer saw three men inside the truck. Nguyen sped off and a 30-minute
pursuit ensued. During the pursuit, the driver threw something out of the window, but
officers never found the item. The truck eventually crashed.
During a standoff, officers exchanged gunfire with the men, but no one was
wounded. Phabmixay ran with a black backpack, but officers apprehended him. He had
a methamphetamine pipe and a single bullet, but no cash or car key. Officers ordered
Nguyen out of the truck and arrested him. Officers did not locate the third man. Officers
found a shotgun in the truck. In Phabmixay’s backpack, officers found two loaded
weapons, a black Glock handgun and a TEC-22 handgun. On the ground near the
backpack was a black baseball hat.
Officers brought Roberto to the location of the arrest. He identified
Phabmixay as the man who was wearing the bandana and got into his car, and Nguyen as
the man who pointed the Uzi at him. At trial, Roberto could not identify the men who
robbed him.
A crime scene investigator saw Roberto’s car’s driver’s seat was reclined.
A crime scene investigator found a black bandana near Roberto’s car. Later, DNA
testing revealed Phabmixay could not be excluded as a contributor of DNA collected
from the bandana, the TEC-22 handgun, and the shotgun. Additionally, DNA testing
revealed Nguyen could not be excluded as a contributor of DNA left on the truck’s
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steering wheel and driver’s side door handle. The parties stipulated Phabmixay and
Nguyen had suffered felony convictions.
At the police station, detectives Roland Andrade and Leo Rodriguez
interviewed Nguyen after advising him of his rights pursuant to Miranda v. Arizona
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(1966) 384 U.S. 436. The detective saw Nguyen had tattoos that indicated he was a
Dragon Family gang member. Nguyen stated he had been “for” Dragon Family since he
was a teenager, it had about 30 members, and its territory was Westminster. Nguyen said
he grew up in territory claimed by a Hispanic gang, Santa Nita, with “Sammy,” who had
the moniker “Peanut.” He explained it was common for Dragon Family and Santa Nita
gang members to interact. Nguyen stated Loc Chung owned the truck, and a friend from
Santa Nita had borrowed it. Nguyen stated they were hanging out in the parking lot that
night “hooker watching” when the police arrived. When Andrade asked him whether
there was a Santa Nita gang member with them, he said, “Yeah, I told you that. I’m not
lying.” The detectives spent considerable time trying to identify the third man and
whether he was a Santa Nita gang member.
B. Gang Evidence
Detective Omar Ayala testified as a criminal street gang expert. After
detailing his background, training, and experience, Ayala testified concerning the
differences between Asian and Hispanic criminal gangs. The primary difference was
Hispanic gangs are turf-oriented, but Asian gangs were mobile and did not claim a
territory. Additionally, Hispanic gangs advertise their gang through dress and graffiti
while Asian gangs are more “discreet.” Ayala explained the culture and habits of Asian
criminal street gangs, including the importance of respect. Gang members earn respect
from other gang members and the community by committing violent acts and
intimidating people. Gang members “[put] in work” for the gang to earn respect for the
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Portions of the interview were played for the jury.
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gang member and the gang and obtain money to purchase weapons to commit more
crimes. Guns are the “ultimate” tool for gaining respect in a gang, and gang members
share guns. Gang members get gang tattoos to display their gang to the community.
Gang members will commit crimes with members of the same gang because it gives them
“back up” and “they trust each other” to not speak to the police. When two gang
members commit a crime together, they talk about it to earn respect. Gang members will
commit crimes with their ally gang’s members.
Ayala testified concerning Dragon Family. Dragon Family was a criminal
street gang that had over 20 members. Dragon Family Junior (Junior) was a subset of
Dragon Family and Nguyen was an original member of Junior. Dragon Family used the
letters “D.F.” or the numbers four and six. Dragon Family gang members wear Diamond
Supply brand clothes, or Los Angeles Dodgers’ or Detroit Tigers’ baseball hats because
of the “D” emblem. Dragon Family’s primary activities were assault with a deadly
weapon and being a felon in possession of a firearm. It had three primary rivals,
including the Tiny Rascal Gang (Tiny Rascal). Ayala testified concerning the pattern of
criminal activity—Nguyen committed one of the offenses.
Ayala opined Nguyen, whose gang moniker was “White Mike,” was a
member of Dragon Family. He based his opinion on the facts of the case, Nguyen’s
previous admissions to officers that he was a Dragon Family member, and his Dragon
Family tattoos.
Ayala also opined Phabmixay was a Dragon Family gang member. He
based his opinion on the facts of the case, items found in his bedroom when officers
searched it, and the deterioration of Tiny Rascal. He acknowledged Phabmixay had been
associated with Tiny Rascal, Dragon Family’s rival, and had Tiny Rascal tattoos. But
because he was “contacted” with a hat that had a “D” on it the night of the crime, Ayala
opined he was no longer a Tiny Rascal gang member. He would have had to leave Tiny
Rascal to join Dragon Family. During a search of Phabmixay’s bedroom, officers found
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a black baseball hat with a “D” on it and a silver belt buckle with an “F” on it. Ayala
opined it was logical for him to leave Tiny Rascal to join Dragon Family because it was a
more well-known and violent gang. He added the circumstances of the offense
established Phabmixay was a trusted associate who was showing his allegiance to Dragon
Family by carrying the gang’s guns while accepting the possible consequences.
The prosecutor told Ayala that he was going to ask him hypothetical
questions and to assume the following facts were true: at least two Dragon Family gang
members were in a truck and stopped next to a man in a car (victim); there was a third
unknown man in the truck; one Dragon Family member gets out of the truck holding a
handgun and demands the victim give him money; a second Dragon Family member gets
out of the truck with a semi-automatic gun; the victim refuses to give them money; the
man with the handgun gets in the car and orders the victim to drive around the corner and
park; the man searches the car, finds and takes $2,000, demands the victim’s car key, and
leaves; the men get back into the truck and leave; the men in the truck return, laugh at the
victim, and leave; the victim walks to a nearby restaurant and calls the police; the police
search the area and see the truck parked; the truck’s driver flees, leads the police on a
chase, and crashes; a man flees with a backpack containing the two guns and “he’s got a
baseball hat with a ‘D’ on it;” and police arrest both men.
Ayala opined the offenses were committed for the benefit of a criminal
street gang with the specific intent to promote, further, or assist in criminal conduct by
gang members. He explained the offenses benefitted the gang because the gang members
committed a violent act, obtained money from the victim, “[wore] that ‘D’ hat,” and
returned to laugh at the victim. Ayala relied on these facts to state the gang members
earned respect for themselves and the gang, and instilled fear in the victim. Ayala added
the gang members promoted the gang “by wearing their common -- their identifying
symbol[,]” using violence to obtain money, and returning to harass the victim. He
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concluded their conduct assisted Dragon Family gang members because they aided each
other while committing the crime.
On cross-examination, Ayala admitted a gang member could commit a
crime for his own personal benefit and if Nguyen was not a member of Dragon Family at
the time of the offenses he could have committed the crime for his own personal benefit.
Ayala testified he had no personal knowledge Phabmixay was jumped out of Tiny Rascal
or joined Dragon Family, or if Nguyen was still an active member of Dragon Family at
the time of the offenses. He repeated that at the time of the offenses, Dragon Family and
Tiny Rascal were rivals. He added rival gang members do not assist each other in
committing crimes, promote their rival gangs, benefit their rival gangs, or make money
for their rival gangs. He stated there was no evidence either man yelled a gang name or
flashed a gang sign. When Nguyen’s counsel asked Ayala whether he had any
information either man was wearing Dragon Family attire, he said, “No.” The following
exchange occurred:
“[Counsel]: [Y]ou were asked in your hypothetical to assume that . . .
Phabmixay was wearing a hat with the letter ‘D’ on it; correct?”
“[Ayala]: Correct.
“[Counsel]: Does it change your opinion at all to know that . . . Phabmixay
was not wearing a hat with a ‘D,’ it just happened to be inside of a backpack?
“[Ayala]: So it was inside meaning - -
“[Counsel]: Right. That he was never wearing it. A black hat with a ‘D’
was just found that evening, but not on him. So that wouldn’t be promoting anything,
would it?
“[Ayala]: No. If it was hidden away, no.”
“[Counsel]: Right. In order to promote, it would have to be something that
they’re displaying; correct?
“[Ayala]: Correct.”
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“[Counsel]: . . . Neither one of them, to your knowledge, was wearing
anything that said Dragon Family that night, were they?
“[Ayala]: No.
“[Counsel]: And you don’t know of anything other than the hat with the
‘D’ that was inside of the backpack; correct?
“[Ayala]: Correct.”
Ayala admitted there was no evidence either man yelled a gang name or
flashed a gang sign during the offenses or when officers arrested them. Ayala knew that
in 2010 and 2013 Nguyen told police officers he was no longer a member of Dragon
Family.
Phabmixay’s counsel asked Ayala to look at a photograph of Phabmixay
and another man flashing a Tiny Rascal gang sign. Ayala agreed Phabmixay was
wearing a hat with a “D” on it. Ayala agreed Phabmixay never claimed any gang other
than Tiny Rascal, and he was unaware of any gang member joining another gang without
members of his old gang assaulting him. To successfully change gangs, the person would
have to cover his old gang’s tattoos.
Detective William Drinnin testified that three months before the offenses
here, he conducted a traffic stop and talked with Phabmixay. Phabmixay told him he had
not been “jumped out” of Tiny Rascal but he was no longer part of the gang.
After the prosecution rested, on Phabmixay’s and Nguyen’s motions, the
trial court dismissed count 7 against Phabmixay and counts 1 and 2 against them both.
They also moved to dismiss count 8. The prosecution objected, arguing there was
sufficient evidence Phabmixay was a Dragon Family gang member. The court dismissed
count 8 against them both. The court denied their motion to dismiss counts 3, 4, and 5.
Later, the court granted the prosecution’s motion to dismiss count 5.
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II. Defense Evidence
Nguyen offered evidence to support their theory Roberto fabricated the
story and he picked up a prostitute and she stole the money from him.
III. Verdicts and Sentencing
The jury convicted Phabmixay of counts 4 and 6, and found true the
enhancements. The jury convicted Nguyen of counts 4, 6, and 7 and found true the
enhancements as to counts 4 and 6. The jury was unable to reach a verdict on count 3,
and the trial court declared a mistrial and later dismissed it (§ 1385).
The trial court sentenced Phabmixay to three years on count 4, 10 years on
the personal use enhancement, and 10 years on the criminal street gang enhancement for
a total prison sentence of 23 years. The trial court sentenced Nguyen to 25 years in
prison on count 4. As relevant here, the court struck the sentence on the criminal street
gang enhancement.
DISCUSSION
I. Sufficiency of the Evidence—Section 186.22, subdivision (b)(1)
Phabmixay and Nguyen argue insufficient evidence supports the jury’s
findings they committed counts 4 and 6 for the benefit of a criminal street gang. We
agree.
When considering a defendant’s challenge to the sufficiency of the
evidence of a gang enhancement, we review the entire record most favorably to the
judgment to determine whether the record contains substantial evidence from which a
rational trier of fact could find the essential elements of the crime beyond a reasonable
doubt. (People v. Albillar (2010) 51 Cal. 4th 47, 59-60 (Albillar).) We do not reweigh
evidence or reassess a witness’s credibility, and we presume the existence of every fact
the trier of fact could reasonably deduce from the evidence. (Id. at p. 60) We ask
whether, after viewing the evidence in the light most favorable to the judgment, any
rational trier of fact could have found the allegations to be true beyond a reasonable
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doubt. (Ibid.) If the circumstances reasonably justify the jury’s findings, reversal is not
warranted merely because the circumstances might also be reasonably reconciled with a
contrary finding. (Ibid.)
Section 186.22, subdivision (b)(1), provides a sentencing enhancement for
felonies “committed for the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote, further, or assist in any criminal
conduct by gang members.” The prosecution must establish both prongs of the gang
enhancement. (People v. Weddington (2016) 246 Cal. App. 4th 468, 484.) “First, the
prosecution is required to prove that the underlying felonies were ‘committed for the
benefit of, at the direction of, or in association with any criminal street gang.’ [Citation.]
Second, there must be evidence that the crimes were committed ‘with the specific intent
to promote, further, or assist in any criminal conduct by gang members.’ [Citations.]”
(People v. Rios (2013) 222 Cal. App. 4th 542, 561.) Section 186.22, subdivision (b)(1)’s
enhancement does not depend on gang membership. (People v. Garcia (2016)
244 Cal. App. 4th 1349, 1366 (Garcia).)
“‘Expert opinion that particular criminal conduct benefited a gang’ is not
only permissible but can be sufficient to support the . . . section 186.22, subdivision
(b)(1), gang enhancement. (. . . Albillar, supra, 51 Cal.4th at p. 63 . . . .)” (People v.
Vang (2011) 52 Cal. 4th 1038, 1048.) However, the expert’s testimony must be grounded
in admissible evidence. “A hypothetical question not based on the evidence is irrelevant
and of no help to the jury. ‘“Exclusion of expert opinions that rest on guess, surmise or
conjecture [citation] is an inherent corollary to the foundational predicate for admission
of the expert testimony: will the testimony assist the trier of fact to evaluate the issues it
must decide?”’ [Citation.] Expert testimony not based on the evidence will not assist the
trier of fact. Thus, ‘[a]lthough the field of permissible hypothetical questions is broad, a
party cannot use this method of questioning a witness to place before the jury facts
divorced from the actual evidence and for which no evidence is ever introduced.’
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[Citation.]” (Id. at p. 1046.) “[P]urely conclusory and factually unsupported opinions”
that the charged crimes are for the benefit of the gang because any violent crime
enhances the gang’s reputation are insufficient to support a gang enhancement. (People
v. Ramirez (2016) 244 Cal. App. 4th 800, 819-820 (Ramirez); see People v. Franklin
(2016) 248 Cal. App. 4th 938, 949 (Franklin) [expert opinion may not be based on
assumption of fact without evidentiary support].)
A. First Prong
Section 186.22, subdivision (b)(1), provides three alternatives for
establishing the first prong—that the underlying offense was “gang related.” The offense
may be committed (1) for the benefit of a gang; (2) at the direction of a gang; or (3) in
association with a gang. (Albillar, supra, 51 Cal.4th at p. 59.) A crime is committed in
association with a gang if the “defendants relied on their common gang membership and
the apparatus of the gang in committing” the charged felonies. (Id. at p. 60.) The crime
itself must have some connection with the gang’s activities and cannot be based solely on
the defendant’s gang affiliations and criminal history. (Garcia, supra, 244 Cal.App.4th
at p. 1367.) The first prong therefore may be established with substantial evidence two or
more gang members committed the crime together, unless there is evidence they were
“‘on a frolic and detour unrelated to the gang.’ [Citation.]” (Albillar, supra, 51 Cal.4th
at pp. 61-62.)
Here, there was insufficient evidence counts 4 and 6 were gang related.
Ayala testified both Nguyen and Phabmixay were Dragon Family gang members and the
crimes were committed in association with Dragon Family because they committed a
violent act, obtained money from the victim, “[wore] that ‘D’ hat,” and returned to laugh
at the victim. Ayala relied on these facts to state the gang members earned respect for
themselves and the gang, and instilled fear in the victim.
Ayala’s testimony, however, was deficient in numerous respects. First,
although gang membership is not an element of the gang enhancement, Ayala relied on
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the fact Nguyen and Phabmixay were Dragon Family members in forming his opinion.
However, the evidence upon which he based his opinion was tenuous at best. Although
there was evidence Nguyen was a founding member of Junior and became a member of
Dragon Family, on two occasions, four years before the offenses, and one year before the
offenses, Nguyen stated he was no longer a member of Dragon Family. In any event,
gang affiliations and criminal history without more cannot serve as a basis for the
enhancement. During a search of Phabmixay’s bedroom the night of the offenses officers
found a hat with a “D” and a belt buckle with an “F.” But to conclude he was a Dragon
Family gang member based on this evidence was speculative. A photograph showed
Phabmixay, who was wearing a hat with a “D,” and another man flashing Tiny Rascal
gang signs. Needless to say, he would not wear Dragon Family gear in the presence of
Tiny Rascal gang members. The belt buckle alone does not demonstrate he left Tiny
Rascal and joined Dragon Family. Three months before the offenses here, Phabmixay
told an officer he had not been “jumped out” of Tiny Rascal but he was no longer part of
the gang. Ayala agreed he had not claimed a gang other than Tiny Rascal and Ayala did
not know of a gang member joining a different gang without being “jumped out” of his
old gang or covering his old gang’s tattoos. The record supports the conclusion
Phabmixay was a Tiny Rascal gang member, not a Dragon Family gang member.
Finally, Ayala said Dragon Family and Tiny Rascal were rivals and rival gang members
do not commit crimes with each other.
In forming his opinion, Ayala relied on the fact Phabmixay wore a hat with
a “D.” But there was no evidence to support that conclusion. The record establishes the
hat was in the backpack. On cross-examination, Ayala admitted that if the hat was in the
backpack, Phabmixay would not be promoting anything. Ayala agreed that to promote
the gang Phabmixay would have to wear the hat. Additionally, the evidence concerning
gang attire was conflicting. Ayala initially testified Asian gangs are discreet, but then
testified about Dragon Family’s attire and symbols.
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Ayala also relied on the fact Nguyen and Phabmixay obtained money for
the Dragon Family. But he agreed gang members can commit crimes for their personal
benefit. Ayala testified Dragon Family’s primary activities were aggravated assault and
unlawful weapons possession. It was not robbery. The fact they used weapons does not
establish by itself the crimes were gang related. Many robbers use guns.
Ayala, like many gang experts, testified at length about gang members
committing violent acts with weapons to increase the gang member’s and the gang’s
reputation. However, these offenses were not committed in Dragon Family claimed
territory. They were committed in Santa Nita claimed territory. Although there was
evidence a third man was in the truck, officers never found him. Other than Ayala’s
opinion, the record includes no evidence to support the gang enhancment. (Franklin,
supra, 248 Cal.App.4th at p. 950.)
Finally, the Attorney General asserts the offenses were gang related
because Nguyen and Phabmixay returned and heckled Roberto. They did return, but
what is most striking is the absence of any gang evidence during that encounter. There is
no evidence that during the offenses Phabmixay or Nguyen were wearing Dragon Family
attire, claimed membership in Dragon Family, flashed a Dragon Family sign, or exposed
any gang tattoos. (See Ramirez, supra, 244 Cal.App.4th at p. 819 [insufficient evidence
first prong where no gang attire worn, no gang names called out, and no gang signs
flashed].) Had they desired to enhance the gang’s reputation in the area, you would think
they would have told someone they were in the gang. The record before us demonstrates
the offenses were not gang related but instead were “‘a frolic and detour unrelated to the
gang.’ [Citation.]” (Albillar, supra, 51 Cal.4th at pp. 61-62.)
B. Second Prong
“[T]he scienter requirement in section 186.22(b)(1) . . . applies to any
criminal conduct, without a further requirement that the conduct be ‘apart from’ the
criminal conduct underlying the offense of conviction sought to be enhanced.” (Albillar,
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supra, 51 Cal.4th at p. 66.) “[I]f substantial evidence establishes that the defendant
intended to and did commit the charged felony with known members of a gang, the jury
may fairly infer that the defendant had the specific intent to promote, further, or assist
criminal conduct by those gang members.” (Id. at p. 68.) “‘“Intent is rarely susceptible
of direct proof and usually must be inferred from the facts and circumstances surrounding
the offense.”’ [Citation.]” (Franklin, supra, 248 Cal.App.4th at p. 949.)
Here, there was insufficient evidence Phabmixay and Nguyen committed
counts 4 and 6 with the specific intent to promote, further, or assist Dragon Family.
Ayala testified the hypothetical gang members promoted the gang “by wearing their
common . . . identifying symbol[,]” assisting each other to commit violence and obtain
money, and returning to harass the victim.
As we explain above, the record does not include any evidence Phabmixay
wore the hat with the “D” during the robberies, and Alaya’s belief he did and his reliance
on the fact in forming his opinion is flawed. He admitted as much on cross-examination.
Without considering that fact, what the evidence shows is the following:
the truck cut off Roberto; one man exited the truck with a handgun and demanded
Roberto’s money; another man exited the truck with a semi-automatic weapon; when
Roberto failed to give them money, the first man got into his car and told him to drive;
Roberto drove and parked; the man took money and Roberto’s car key, and got back into
the truck; the truck left and a few minutes later returned, when the men laughed at
Roberto; the police found the truck and a high-speed chase ensued until the truck crashed;
and when the truck crashed, Phabmixay fled on foot with a backpack containing two
weapons.
Noticeably absent from these facts is any evidence Phabmixay and Nguyen
specifically intended to benefit Dragon Family. This evidence establishes they robbed
Roberto but nothing more. Again, they were not wearing Dragon Family attire, claiming
Dragon Family, or flashing Dragon Family signs. “Missing was all evidence typical of
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crimes committed for the benefit of the gang and intended to promote, further, or assist
the commission of crimes by gang members . . . .” (People v. Perez (2017)
18 Cal. App. 5th 598, 613.)
Two cases help to explain our conclusion. In People v. Garcia (2017)
9 Cal. App. 5th 364, 379, the court addressed whether there was sufficient evidence
defendant committed assaults for the benefit of a criminal street gang. In concluding
there was sufficient evidence, the court relied on the following: defendant and another
participant in the assaults were members of the same gang based on photographs showing
them wearing gang attire and throwing gang signs; the assaults were in the gang’s
claimed territory; the assaults were the gang’s primary activity; and defendant and his
compatriot worked in concert and yelled gang names and threats during assaults. (Id. at
p. 380.)
In Ramirez, supra, 244 Cal.App.4th at page 818, the court addressed
whether there was sufficient evidence at the preliminary hearing. In concluding there
was insufficient evidence, the court relied on the following: there was a lack of evidence
showing defendants were known members of the same gang; and defendants did not wear
gang attire, call out gang names, or flash gang signs. (Id. at p. 819.)
Here, the evidence more closely resembles Ramirez than it does Garcia.
The record establishes the men, who may or may not have been active gang members or
associates and, if so, were perhaps from rival gangs, simply robbed a man at gunpoint in
a third gang’s claimed territory and fled from police without wearing gang attire, calling
out a gang’s name, or flashing a gang’s sign.
As our Supreme Court has stated, not every crime committed by gang
members is gang related. (Albillar, supra, 51 Cal.4th at p. 60.) Here, the prosecution did
not satisfy its burden of proving Phabmixany and Nguyen committed counts 4 and 6 for a
criminal street gang. We reverse the jury’s finding on the gang enhancements on counts
4 and 6 for both Phabmixay and Nguyen.
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Because we reverse, we need not address Phabmixay’s and Nguyen’s
ineffective assistance of counsel claims. Additionally, we need not address Phabmixay’s
claim the trial court erred by admitting Nguyen’s statements to police.
II. Bifurcation of Criminal Street Gang Enhancment
Phabmixay and Nguyen contend the trial court erred by denying their
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motions to bifurcate trial of the gang enhancement allegations. Any error was harmless.
“Our courts have consistently recognized the efficiencies that are achieved
by way of a joint trial of related matters. [Citation.] Thus, in order to prevail on a motion
to bifurcate a gang enhancement, a defendant must ‘“clearly establish that there is a
substantial danger of prejudice requiring that the charges be separately tried.”’ [Citation.]
‘In cases not involving the gang enhancement, we have held that evidence of gang
membership is potentially prejudicial and should not be admitted if its probative value is
minimal. [Citation.] But evidence of gang membership is often relevant to, and
admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation
. . . can help prove identity, motive, modus operandi, specific intent, means of applying
force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the
extent the evidence supporting the gang enhancement would be admissible at a trial of
guilt, any inference of prejudice would be dispelled, and bifurcation would not be
necessary. [Citation.]’ [Citation.] [¶] ‘Even if some of the evidence offered to prove the
gang enhancement would be inadmissible at a trial of the substantive crime itself . . . a
court may still deny bifurcation.’ [Citation.]” (Garcia, supra, 244 Cal.App.4th at
p. 1357.)
3
Because the trial court dismissed count 8, the gang substantive offense, we
focus our discussion on bifurcation of the enhancement and not severance of the offense.
(People v. Burnell (2005) 132 Cal. App. 4th 938, 946, fn. 5 [count severed and
enhancement bifurcated].)
17
We need not address whether the trial court erred by denying Phabmixay’s
and Nguyen’s motion to bifurcate because any error was harmless beyond a reasonable
doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
Police officers responded to the area and identified a truck matching the
description Roberto provided. When the men saw the police, they fled. When the high-
speed chase ended, Phabmixay fled with a backpack that contained two guns that
matched the descriptions Roberto provided. At the scene, Roberto identified Phabmixay
and Nguyen as the men who robbed him. Forensic testing connected Phabmixay to the
black bandana found near Roberto’s car. Simply put, this was overwhelming evidence of
their guilt as to all counts. Finally, the jury deadlocked on count 5, which suggests the
gang evidence was not so inflammatory that it evoked an emotional bias against them.
III. Pitchess Motion
Phabmixay and Nguyen request we make an independent review of the trial
court’s ruling on the prosecution’s motion to disclose peace officer personnel records.
The Attorney General does not object to our review.
Before trial, the prosecution filed a motion for discovery of peace officer
personnel records. The records concerned an internal affairs investigation of an officer
who was involved in the shooting in this case. After an in camera hearing, the trial court
determined there was no discoverable information.
A criminal defendant is entitled to the discovery of confidential police
officer personnel records if the information contained therein is relevant to her ability to
defend against the charge. (Pitchess v. Superior Court (1974) 11 Cal. 3d 531, 537-538.)
To obtain such records, the defendant must submit an affidavit showing good cause for
the discovery. (Evid. Code, § 1043, subd. (b)(3).) A showing of good cause requires a
defendant seeking Pitchess discovery “to establish . . . a logical link between [a proposed
defense] and the pending charge” and “to articulate how the discovery being sought
would support such a defense or how it would impeach the officer’s version of events.”
18
(Warrick v. Superior Court (2005) 35 Cal. 4th 1011, 1021.) Discoverable information is
“limited to instances of officer misconduct related to the misconduct asserted by the
defendant. [Citations.]” (Ibid.)
Under People v. Mooc (2001) 26 Cal. 4th 1216, 1229-1232, upon a request
from a defendant, an appellate court may review the sealed transcript of a trial court’s in
camera Pitchess hearing to determine whether the trial court disclosed all relevant
documents. We may review the transcript of the in camera proceeding. (See People v.
Jackson (1996) 13 Cal. 4th 1164, 1221, fn. 10.) We review the trial court’s ruling on such
a motion for abuse of discretion. (People v. Samayoa (1997) 15 Cal. 4th 795, 827.)
We independently reviewed the sealed transcript of the trial court’s in
camera hearing on the prosecution’s motion. We conclude the trial court did not abuse its
discretion.
DISPOSITION
We reverse the jury’s finding on the gang enhancements as to count 4 and 6
for both Phabmixay and Nguyen. In all other respects, we affirm the judgments.
O’LEARY, P. J.
WE CONCUR:
THOMPSON, J.
GOETHALS, J.
19