P. v. Ko

Filed 6/14/06 P. v. Ko CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert P. O'Neill, Judge. Modified and affirmed.

George L. Schraer, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant John Ko appeals from a judgment of conviction for first degree murder (Pen. Code, § 187, subd. (a))[1] and his sentence. He contends that there is no substantial evidence to support the jury's special circumstance findings that he committed the murder for financial gain and by lying in wait. We conclude that substantial evidence supports the findings, and we affirm the judgment of conviction. The People concede that a $10,000 parole revocation fine should be stricken. We agree and order that it be stricken.

FACTS

Appellant and Zaw Htet met in 2003 at a 7-Eleven store where both of them worked. Htet was a 19-year-old man from Burma who came to the United States in January 2003 to obtain a higher education. Before Htet left Burma and a few months afterward, his mother gave him thousands of dollars. She told him not to tell anybody how much money he had. This was the first time Htet handled his own money.

Appellant, who also was from Burma, at one point gave Htet an out-of-state check in exchange for cash. Htet deposited the check in an automated teller machine at his bank, but the check was returned unpaid on July 7, 2003, for being a closed bank account. Wanting appellant to repay him, Htet agreed to meet appellant on July 10. Htet was found dead in an alley on the night of July 10. His body had 17 stab wounds around the chest, including some wounds as deep as five inches.

Appellant was charged with the murder of Htet, and it was alleged that he committed the crime by means of lying in wait, within the meaning of section 190.2, subdivision (a)(15). It was further alleged that appellant committed the murder for financial gain, within the meaning of section 190.2, subdivision (a)(1). Appellant was also charged with second degree robbery (§ 211).

Following his arrest in San Diego, where appellant said he moved in late July, appellant was interviewed twice by police officers Francene Mounger and Joel Price. Appellant said that he and his wife were expecting a baby who requires surgery to remove an extra thumb, and that he needed money to pay for the operation. Appellant conceded he had financial problems, including being delinquent in car payments. To earn extra money, he worked as a translator in immigration matters.

During the first police interview, appellant said that he knew the victim, whom he called Zah Tet, was killed. Appellant said that Htet called his cell phone several times because he wanted appellant to translate for Htet at the immigration office, but appellant did not want to because he thought that Htet's application was fake.

Appellant denied taking Htet's money, and he at first denied meeting Htet the night that he was killed, claiming that he was at home after 8:00 p.m. because of his wife's pregnancy. But later appellant admitted meeting Htet on July 10 after Htet called appellant on his cell phone. Appellant said that when Htet called, appellant was driving a Burmese passenger, Brian, in his Toyota Corolla, purchased from Longo Toyota. Appellant drove Brian to the 7-Eleven. Htet joined appellant and Brian, with Htet sitting in the front passenger seat of appellant's car, and Brian in the back seat. Brian directed appellant where to drive. Appellant did not know that Brian intended to kill Htet. He said that Brian and Htet were arguing, and then Brian â€