P. v. Hong

Filed 9/24/07 P. v. Hong 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Francisco P. Briseno, Judge. Affirmed in part, reversed in part and remanded with directions.

Steven M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Yong Bae Hong^[1]of one count of murder (Pen. Code,  187, subd. (a))^[2], six counts of attempted murder ( 664; 187, subd. (a)), seven counts of shooting at an occupied motor vehicle ( 246), one count each of unlawful participation in a criminal street gang ( 186.22, subd. (a)), and conspiracy to commit assault likely to create great bodily injury ( 182, subd. (a)(1); 245, subd. (a)(1)). The jury also found true allegations defendant committed the attempted murder offenses willfully, deliberately and with premeditation ( 664, subd. (a)), committed most of the offenses for the benefit of a criminal street gang ( 186.22, subd. (b)(1)), and through vicarious discharge of a firearm ( 12022.53, subd. (c), (d) & (e)(1)). Defendant was sentenced to a state prison term of 50 years to life.

FACTS

On a September night in 2000, in a restaurant parking lot, members of the Triad Boyz^[3]criminal street gang, including Kevin Kim, tried to take the wallets of Randy Hong and other members of the Fullerton Boys^[4]criminal street gang. The Triad Boyz members screamed out their gang affiliation and asked Randy Hong whether he was from the Fullerton Boys.

Randy Hong and a Triad Boyz member agreed to meet at a park for a one-on-one fist fight to settle the dispute. (There was also discussion of a three-on-three fight.) The fight was to take place on September 12. Believing that the Fullerton Boys were known to ambush people, the Triad Boyz decided to bring a gun just in case. Defendant, a leader and founding member of the Triad Boyz, ordered two other members to pick up a gun at his house.The gun was given to Kevin Kim. Defendant brought a box of bullets for the gun, and Kevin Kim loaded the magazine with about 10 bullets.

Eight Fullerton Boys drove four cars to the park a Lexus driven by Jerry Pan with passengers Russell Su, David Son, and Kin Au, a Honda Passport driven by David Yong with passenger Michael Won, a Maxima driven by Randy Hong with no passengers, and a truck driven by Jason Kim with no passengers. They emerged from the cars and waited in the center of the grass.

Eight Triad Boyz arrived at the park in two cars, a dark Toyota Camry driven by defendant, and a white Toyota Camry driven by Jason Liu. Riding in defendants dark Camry were Kevin Kim in the front passenger seat with Justin Loh and Thomas Kim in the back seat. Lius passengers in the white Camry were Leonard Noto, Michael Chang, and Louis Liu. The Triad Boyz drove into the park to see how many people were in there and observed quite a few people based on their cigarette embers . . . glowing in the night. The two Camrys split up and drove in opposite directions on the street around the park.

Around midnight, the Fullerton Boys were about to leave to go home when a car drove by and someone said, Thats the guys. Immediately the Fullerton Boys jumped in their cars and chased the white Camry.

Loh, a passenger in the dark Camry, received a phone call from the guys in the white car. Noto in the white Camry, sounding scared and urgent on the phone, told Loh they were being chased and needed help. The dark Camry turned around, head[ed] back over there, and saw the white Camry being chased by other cars. The dark Camry turned and tried to follow them. On the phone, Noto told Loh the white Camry was in a dead end street.

The Fullerton Boys vehicles had followed the white Camry into a cul-de-sac; the Lexus was last in . . . the chase. All the vehicles were trying to make a u-turn at the neck of the cul-de-sac, and due to the congestion, the Lexus attempted a three-point turn. The dark Camry driven by defendant entered the cul-de-sac at the same time as the white Camry exited the street. Noto in the white Camry phoned defendant and said, Blast, blast, blast them.

The dark Camry stopped beside the first car (the Lexus) and Kevin Kim fired gunshots from out the Camrys sunroof. The driver of the Lexus heard gunshots and saw a body sitting outside another car . . . approaching from behind. He heard glass breaking around him as he tried to put the car into reverse and drive forward to exit the cul-de-sac. His car backed into the dark Camry. He heard somewhere in between one and twenty gunshots. He felt a bullet hit his shoulder blades, and turned to see front passenger Sons face bleeding and, in the back seat, Su unconscious.

Fullerton Boy Yong, driving the Passport around the end of the cul-de-sac, saw a car pulled up next to the Lexus and heard popping noises. Yongs passenger, Won, screamed Get down; Won opened the passenger door and jumped out of the car. Yong stayed in the car and . . . ducked down. As [Yong] was leaned over to the right, [he] noticed a car that had pulled up to the right side, the passenger side of the car, and next thing [he] knew [he] heard glass shattering and . . . felt like a throbbing pain in [his] left leg, [and] searing pain in [his] shoulder and [his] left arm. The dark Camry had continue[d] into the cul-de-sac, stopped at the Passport, and Kevin Kim had shot at it, hitting the driver three times.

Randy Hong driving the Maxima heard gunshots. He then saw and heard a dark car come[] up next to [him] and a passenger inside shoot four times at his Maxima. The passenger fired the shots through the dark Camrys window.

In total Kevin Kim had shot at three vehicles. Defendant, the driver, had stopped the dark Camry at each car at each location at each time of these shootings.

Su, a passenger in the Lexus, ultimately died from a gunshot wound to the back of his lower head consistent with someone who was leaning forward or crouching when struck by the bullet.

In a police interview, defendant admitted he (1) gave a box of ammunition for the gun to Kevin Kim who loaded the magazine with about 10 rounds, (2) drove the car from which Kevin Kim fired shots, and (3) had been a member of the Triad Boyz since the gang started. A search of defendants bedroom uncovered a box of 9 millimeter ammunition missing 11 rounds; the ammunition was consistent with the cartridge cases found at the crime scene.

DISCUSSION

Standard of Review

Defendant contends insufficient evidence supports the jurys findings that he shot at a vehicle occupied by Michael Won and that the Triad Boyz is a criminal street gang within the meaning of section 186.22. Under the applicable standard of review, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence that is, evidence which is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The court does not, however, limit its review to the evidence favorable to the respondent. . . . [O]ur task . . . is twofold. First, we must resolve the issue in the light of the whole record i.e., the entire picture of the defendant put before the jury and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements . . . is substantial; it is not enough for the respondent simply to point to some evidence supporting the finding, for Not every surface conflict of evidence remains substantial in the light of other facts. (People v. Johnson, supra, 26 Cal.3d at pp. 576-577.) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Before the judgment of the trial court can be set aside for insufficiency of the evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it. (People v. Redmond (1969) 71 Cal.2d 745, 755.)

Defendants Conviction for Shooting at a Vehicle Occupied by Michael Won is Not Supported by Substantial Evidence and Must Be Reversed

Defendant was convicted of seven counts of shooting at an occupied vehicle. He contends his conviction on count 15, based on his shooting at the Honda Passport in which Michael Won was a passenger, lacks sufficient evidentiary support because there was no substantial evidence that Won was in the vehicle at the time of the shooting. Defendant does not challenge his conviction for shooting at an occupied motor vehicle with respect to the Passports driver, David Yong.

Under section 246, maliciously and willfully shooting at an occupied vehicle is a felony. The People acknowledge that the factual support for the conviction in question came from the testimony of Yong, the Passports driver. They argue that [v]iewing the evidence in the light most favorable to respondent, the jury could have reasonably inferred from this evidence that Michael Won was inside the vehicle or in its immediate vicinity at the time it was fired upon. The People note that Yong heard popping noises while Won was still in the vehicle and it was reasonable for the jury to conclude some of those shots which Yong heard were fired in the direction of his vehicle, at a time it was still occupied by both Yong and Won.

We address first the Peoples contention Won might have been in the immediate vicinity of the Passport at the time Kim shot at it. [O]ccupied means that the . . . vehicle . . . must be occupied at the time of the shooting. (People v. Overman (2005) 126 Cal.App.4th 1344, 1360.) The People provide no support for the proposition that occupying a car includes being within its near vicinity. [T]his interpretation is at odds with the plain meaning of the statutory language . . . . (People v. Warner(2006) 39 Cal.4th 548, 555.) The applicable definition of occupy is to take up (a place or extent in space) (Merriam-Websters Collegiate Dict. (10th ed. 2001) p. 802, col. 2), which plainly means to take up space inside the car.

Thus we must determine whether any substantial evidence showed Won was actually inside the vehicle at the time it was fired upon. We find none in the record. Yong testified he saw a car that was pulled up next to one of [his] friends cars, and [he] heard popping noises. He clarified the friends car in question was the Lexus. Won screamed Get down, and he jumped out of the [Passport]. Yong testified he then noticed a car that had pulled up to the . . . passenger side of [his] car, and next thing [he] knew [he] heard glass shattering and [he] felt pain in his leg, shoulder and arm. Loh testified defendant stopped the dark Camry at each car at each location at each time of these shootings. Under this sequence of events to which Yong and Loh testified, Won had exited the Passport before the dark Camry drew alongside it and Kim commenced firing at it. The Peoples own brief recites this same sequence in its statement of facts.

The Peoples suggestion that Kevin Kim might have fired toward the Passport while the dark Camry was alongside the Lexus is speculative with no supporting evidence whatsoever. The evidence showed Kim had 10 or 11 rounds in the gun, fired three at Yong in the Passport and four at Hong in the Maxima, and in addition shot three victims in the Lexus (which had four occupants). The dark Camry pulled alongside each vehicle so that Kim could shoot at its occupants. It is speculative to infer Kim shot toward the Passport while situated beside the Lexus and simultaneously shooting at the Lexuss occupants.

The conviction on count 15 must be reversed.

Substantial Evidence Supports Defendants Conviction for Participating in a Criminal Street Gang and the True Findings on the Gang Enhancements

The jury convicted defendant of unlawfully participating in a criminal street gang and found true the allegations he committed crimes and vicariously discharged a firearm for the benefit of the gang. Defendant contends insufficient evidence supports the conviction and findings because the prosecution was unable to muster a single expert witness to testify that Triad Boyz was a criminal street gang and the testimony of accomplice Justin Loh . . . on this subject, properly viewed with caution, was unreliable and . . . based on conjecture, lack of adequate knowledge, and [unsupported] conclusions . . . . The People counter that the testimony of Justin Loh provided sufficient evidence that one of Triad Boyz[] primary activities was one of the enumerated felonies.

A criminal street gang means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity. ( 186.22, subd. (f).) A pattern of criminal gang activity means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons. ( 186.22, subd. (e).) The predicate offenses enumerated in subdivision (e) which may form a pattern of criminal gang activity or constitute primary activities include robbery, burglary and selling controlled substances. ( 186.22, subd. (e)(2), (e)(4), & (e)(11).) Evidence of the [current] charged offense and one other offense committed on a prior occasion by the defendants fellow gang member (People v. Loeun (1997) 17 Cal.4th 1, 5) within the requisite timeframe may be sufficient to prove a pattern of criminal gang activity. (Id. at p. 4.) Similarly, a trier of fact may consider the circumstances of the present or charged offense in deciding whether the group has as one of its primary activities the commission of one or more of the statutorily listed crimes. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) Sufficient proof of the gangs primary activities might consist of evidence that the groups members consistently and repeatedly have committed criminal activity listed in the gang statute. (Id. at p. 324.)

Loh was charged as a defendant in this case and pleaded guilty to conspiracy to commit assault with force likely to cause great bodily injury and also to participation in a criminal street gang. At the time he entered his guilty plea, Loh signed a plea agreement admitting, inter alia, that the Triad Boyz are a criminal street gang as defined in section 186.22, subdivision (a) and that the gang has engaged in a pattern of criminal gang activity. Loh testified that starting in seventh grade, he was a member of the Little Bamboo gang which dabbled in drug dealing and did some burglaries [and] robberies. Little Bamboo turned into Triad Boyz. In 2000 the Triad Boyz had about 20 to 25 members and defendant was a branch leader. On cross-examination, Loh testified he did not write the plea agreement himself and could not define a criminal street gang, although he probably did know the definition at the time he entered the plea and had a vague idea [of] what [a criminal street gang] is. When asked to define a pattern of criminal gang activity, Loh replied, I guess illegal activities that a group of people do. On redirect examination, Loh testified he had been a branch leader of the Triad Boyz until he was shot in the arm about two or three months before the shootings in the park that are the subject of this appeal. In his capacity as branch leader Loh had made sure the younger kids . . . are in line. When asked if that meant he made sure the younger kids commit crime, Loh testified, It depends and that they sometimes committed crimes for the gang, such as selling drugs in the year 2000 and committing burglaries, including residential ones. Loh testified he was convicted of residential burglary in 1998 when he was a member of the Triad Boyz and that the primary crimes the Triad Boyz committed were selling drugs and committing robberies and burglaries. He confirmed that although he is not an expert in what . . . section 186.22(a) says exactly verbatim, his lawyer had explained what [he was] pleading guilty to.

Defendant argues the jurys findings that the Triad Boyz engaged in a pattern of criminal gang activity and that their primary activities included robbery, burglary, and selling drugs lack sufficient evidentiary support. He contends Lohs testimony did not establish the frequency with which the Triad Boyz engaged in criminal activity, thus failing to show one of their chief occupations involved consistent and repeated criminal activity. He further contends that [a]lthough the prosecution need not introduce proof of convictions for the required number of acts to constitute a pattern [of criminal activity], it is required to show at least some competent proof that the offenses were actually committed. He claims Lohs testimony was conclusory, failed to recite any underlying facts of the alleged offenses, and lacked the foundation necessary to support a solid, credible inference that Loh knew whether the acts of the Triad Boyz qualified as listed statutory felony offenses.

We disagree. Lohs testimony established the gangs criminal activities began with its inception as Little Bamboo and continued through the year 2000. Loh suffered a conviction for residential burglary in 1998 and the current charged offenses may be considered in determining whether an organization has the requisite primary activity and pattern of criminal gang activity under the street terrorism statute.

DISPOSITION

Defendants conviction on count 15 for shooting at a vehicle occupied by Michael Won is reversed and remanded with directions to strike the conviction on count 15. Because execution of sentence on count 15 was stayed pursuant to section 654, a new sentencing hearing is not required. The trial court is directed to prepare an amended abstract of judgment reflecting no conviction on count 15 and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

IKOLA, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

ARONSON, J.

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^[1] Defendant is also known as Kenny Hong.

^[2] All statutory references are to the Penal Code unless otherwise specified.

^[3] Alternatively spelled Triad Boys.

^[4] Alternatively spelled Fullerton Boyz.