P. v. Xiong

Filed 9/5/06 P. v. Xiong CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

Sacramento Police Sergeant David Hogge heard shots fired from a vehicle around midnight on September 26, 2003. Police arrested defendant Shoua Xiong and two others after pursuing them by patrol car and on foot.

The amended information charged defendant with assault with a semiautomatic firearm (Pen. Code,^[1] § 245, subd. (b) – count one), discharging a firearm at an occupied vehicle (§ 246 – count two), participating in a criminal street gang (§ 186.22, subd. (a) – count three), and carrying a loaded firearm in a public place (§ 12031, subd. (a)(1) – count four). The amended information also alleged defendant committed counts one, two and four for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), personally used a firearm in the commission of counts one and three (§ 12022.5, subd. (a)), and was an active participant in a street gang as to count four (§ 12031, subd. (a)(2)(C)).

The jury convicted defendant of counts three and four and found the special allegations to be true. It deadlocked on counts one and two, and the court declared a mistrial as to those counts. The court sentenced defendant to six years in prison: the middle term of two years on count three plus the middle term of four years for the firearm enhancement. The court stayed the aggregate four-year sentence imposed on the conviction and enhancement in count four pursuant to section 654.^[2]

On appeal defendant argues he is entitled to reversal because: (1) count three is necessarily included in count four; (2) there is insufficient evidence to support the jury finding that he personally used a firearm in the commission of count three; (3) there is insufficient evidence he carried a loaded firearm while participating in gang activity as alleged in count four; and (4) the court erred in instructing the jury on criminal gang activity.

We shall vacate defendant's conviction of count three because it is necessarily included in count four. We also strike the two-year illegal sentence imposed for a non-existent section 12031, subdivision (a)(2)(c) enhancement in count four. As modified, we affirm the judgment. We shall remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

Sergeant Hogge was on routine patrol in a marked police car the evening of September 26, 2003. At approximately 11:25 p.m., he observed a light blue Honda and a dark colored Ford Probe driving southbound on Franklin Boulevard. One vehicle was five to seven feet behind the other vehicle. Hogge saw three Asian males in the second car and believed there were three or four Asian males in the first car.

Hogge observed the second car –- the Ford Probe -- pull up along the right side of the first car and heard four to six gunshots. He was not sure which car the shots came from and did not know which of the three people in the Ford Probe, if any, was the shooter. Hogge saw no gun or muzzle flashes. He estimated he was about 100 yards from the shooting at the time it occurred.

After the shots were fired, the Ford Probe accelerated as it pulled away from the scene. Sergeant Hogge activated his emergency lights and siren, and pursued the Ford Probe at speeds of 75- to 80-miles per hour. The chase ended in a cul-de-sac, where all three of the suspects jumped out of the car and ran. Hogge stopped his patrol car and ran after the individual he thought was the driver. The suspect, later identified as Choua Vang, scrambled over a fence, but Hogge pulled off one of his shoes before he got away. Sergeant Hogge called for â€