Fear Not Law Articles: P. v. Chia

P. v. Chia

Filed 2/13/07 P. v. Chia CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 ONE

THE PEOPLE,

Plaintiff and Respondent,

MICHAEL CHIA,

Defendant and Appellant.

B186803

(Los Angeles County

Super. Ct. No. A576188)

APPEAL from a judgment of the Superior Court of Los Angeles County, Michelle R. Rosenblatt, Judge. Affirmed as modified, and remanded with directions.

Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________

In 1988, Frank Kow, Michael Sun, and William Wang actively participated in a planned robbery and the shooting of three undercover DEA agents who were posing as drug buyers. Two of the agents were killed, the third was wounded, and Kow and Sun were killed by other agents as they attempted to flee. Wang was wounded but survived and was later convicted of two counts of first degree murder, one count of attempted murder, and one count of robbery, and was sentenced to state prison for life without the possibility of parole. We affirmed (People v. Wang (June 3, 1992, B049641) [nonpub. opn.]), and the Supreme Court denied review (People v. Wang (Aug. 27, 1992, S027668).

Meanwhile, Michael Chia was tried separately for the same crimes and convicted as an aider and abettor of two counts of first degree murder, one count of attempted murder, one count of robbery, and one count of conspiracy to commit robbery. We affirmed (People v. Te-Chia (May 30, 1991, B043360 [nonpub. opn.]), the Supreme Court denied review (People v. Te-Chia (Sept. 4, 1991, S021888), and the United States District Court denied Chia's petition for a writ of habeas corpus -- but the Ninth Circuit Court of Appeals reversed the district court and remanded the cause with instructions to issue a writ of habeas corpus unless Chia was granted a new trial (Chia v. Cambra (9th Cir. 2002) 281 F.3d 1032). The United States Supreme Court granted certiorari, vacated the Ninth Circuit's judgment, and remanded the cause to the Ninth Circuit for further consideration (McGrath v. Chia (2003) 538 U.S. 902). On remand, the Ninth Circuit again reversed the district court (Chia v. Cambra (9th Cir. 2004) 360 F.3d 997), finding that Chia had been denied a fair trial because the trial court had excluded hearsay statements by Wang (who had been unavailable because he had invoked his Fifth Amendment rights) that allegedly exonerated Chia.

At his retrial in 2005, Chia called Wang as defense witness, and Wang testified that Chia had not been involved in the robbery or murders of the DEA agents. The jury rejected Wang's testimony (and the rest of Chia's defense) and once again convicted him of two counts of first degree murder, one count of attempted murder, one count of robbery, and one count of conspiracy to commit robbery, with true findings on allegations that a principal had been armed with a firearm during the commission of the murders and the robbery. Chia was sentenced to state prison for an aggregate term of 61 years to life. He appeals, challenging various aspects of the trial and his sentence. We vacate a $200 fine but otherwise affirm the judgment.

FACTS

In July 1987, Group 4 of the DEA's Los Angeles office began an investigation of Frank Kow, a major dealer in heroin imported from Southeast Asia for distribution in the United States. In October, Kow gave a free sample of heroin to a confidential informant. In November, he sold half an ounce of 80 percent pure heroin to an undercover agent, Paul Seema (one of the murder victims). Later, Kow offered two pounds of heroin to Agent Seema for $80,000; Seema had told Kow he was working as a broker for two buyers, undercover agents George Montoya (the other murder victim) and Jose Martinez (the attempted murder victim). On February 4, 1988, Kow told Agent Seema the heroin was ready, that he would meet him and the buyers the next morning at the Tiny Naylor's restaurant in Monterey Park, and that the heroin would be delivered at a residence in Pasadena.

At 7:30 that evening, Agent Nadine Moorin set up surveillance in a car parked near Kow's apartment, and Agent Leo Ducey set up surveillance from a different vantage point. Shortly after 10:00 p.m., Chia drove up and parked his black Mitsubishi in front of Agent Moorin's car. Chia and Wang got out and opened the trunk; Wang took out a bag containing a box and a .45-caliber handgun which he put in his pants, and Wang then walked to Kow's upstairs apartment. Agents Moorin and Ducey both saw Chia stand next to the Mitsubishi for a few minutes, looking up and down the street, and both agents believed Chia was acting as a â€

Description	In 1988, Frank Kow, Michael Sun, and William Wang actively participated in a planned robbery and the shooting of three undercover DEA agents who were posing as drug buyers. Two of the agents were killed, the third was wounded, and Kow and Sun were killed by other agents as they attempted to flee. Wang was wounded but survived and was later convicted of two counts of first degree murder, one count of attempted murder, and one count of robbery, and was sentenced to state prison for life without the possibility of parole. Court affirmed (People v. Wang (June 3, 1992, B049641) [nonpub. opn.]), and the Supreme Court denied review (People v. Wang (Aug. 27, 1992, S027668). Meanwhile, Michael Chia was tried separately for the same crimes and convicted as an aider and abettor of two counts of first degree murder, one count of attempted murder, one count of robbery, and one count of conspiracy to commit robbery. Court affirmed (People v. Te-Chia (May 30, 1991, B043360 [nonpub. opn.]), the Supreme Court denied review (People v. Te - Chia (Sept. 4, 1991, S021888), and the United States District Court denied Chia's petition for a writ of habeas corpus -- but the Ninth Circuit Court of Appeals reversed the district court and remanded the cause with instructions to issue a writ of habeas corpus unless Chia was granted a new trial (Chia v. Cambra (9th Cir. 2002) 281 F.3d 1032). The United States Supreme Court granted certiorari, vacated the Ninth Circuit's judgment, and remanded the cause to the Ninth Circuit for further consideration (McGrath v. Chia (2003) 538 U.S. 902). On remand, the Ninth Circuit again reversed the district court (Chia v. Cambra (9th Cir. 2004) 360 F.3d 997), finding that Chia had been denied a fair trial because the trial court had excluded hearsay statements by Wang (who had been unavailable because he had invoked his Fifth Amendment rights) that allegedly exonerated Chia. At his retrial in 2005, Chia called Wang as defense witness, and Wang testified that Chia had not been involved in the robbery or murders of the DEA agents. The jury rejected Wang's testimony (and the rest of Chia's defense) and once again convicted him of two counts of first degree murder, one count of attempted murder, one count of robbery, and one count of conspiracy to commit robbery, with true findings on allegations that a principal had been armed with a firearm during the commission of the murders and the robbery. Chia was sentenced to state prison for an aggregate term of 61 years to life. Defendant appeals, challenging various aspects of the trial and his sentence. Court vacate a $200 fine but otherwise affirm the judgment.
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