P. v. Lor

Filed 3/28/07 P. v. Lor CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Ger Lor of attempted murder (count 1; Pen. Code, 664/187, subd. (a); undesignated section references are to the Penal Code) and discharging a firearm at an occupied motor vehicle (count 2; 246). The jury found as to both counts that defendant personally discharged a firearm, causing great bodily injury during the commission of the offense ( 12022.53, subd. (d)) and that the offenses were committed for the benefit of and in association with a criminal street gang ( 186.22, subd. (b)(1)).

Sentenced to an aggregate state prison term of 40 years to life, defendant contends: (1) Insufficient evidence supports the gang enhancement. (2) The trial court imposed an unauthorized sentence by ordering defendant to pay for court-appointed attorneys fees without providing him adequate notice and an opportunity to be heard. We shall affirm defendants convictions, but remand the matter to the trial court for resentencing as to the attorneys fees order.

FACTS

On the afternoon of July 9, 2005, defendant shot and seriously wounded Johnny Her in North Sacramento while both were driving their cars.

Both testified at trial and denied gang membership.^[1] However, the People sought to show that defendant belonged to the Hmong Nation Society (HNS) and Her belonged to the rival Menace Boys Crips (MBC). Their evidence included (1) prior admissions by both and (2) a videotape of a brawl at the October 2004 Hmong New Years Festival in Oroville, in which defendant and others were seen beating Hers brother U-Bone, a known MBC member, and then Her. As to defendant, the People also showed that after his arrest a backpack bearing HNS-related graffiti was found in his bedroom, his cell phone revealed calls made just after the shooting to validated HNS members, and the cell phones address book contained the numbers of still other HNS members.

In addition, the People presented testimony from Sacramento Police Detective Aaron Lee, an expert in Asian street gangs. Lee testified that such gangs align according to nationality. HNS (Hmong Nation Society or Hmong North Side) is the dominant Asian gang in North Sacramento, with around 52 validated members. HNSs activities include homicides, drive-by shootings, narcotics sales and possession, illegal gun possession, and vehicle theft. Based on his admissions and the backpack found in his bedroom, defendant was clearly a member.

HNSs enemies include MBC, of which Hers brother U-Bone is a validated member; Her, a known MBC associate, has not been officially validated, but in Lees opinion there are sufficient grounds to do so. The enmity between HNS and MBC has led to assaults and killings.

According to Lee, in the gang culture respect, which is often achieved through fear, is highly valued. HNS is benefited whenever a member assaults or kills an MBC member, because it demonstrates HNSs ruthlessness and diminishes the respect due to MBC. Gang members will defend members of their families, and gangs will assault the families of members of rival gangs. In Lees opinion, the shooting charged in this case was an assault on an MBC member by an HNS member and was done for the benefit of HNS.

Lee also testified to two predicate offenses committed by HNS. On November 29, 2003, HNS members Jerry Lee and Toua Vang committed a drive-by shooting; their convictions included findings that gang allegations were true. On July 18, 2001, Yong Lor committed a drive-by shooting on members of another gang opposed to HNS; he was convicted of attempted murder and the jury found that the crime was committed for the benefit of HNS.

DISCUSSION

Defendant contends there is insufficient evidence to prove the gang enhancement. We disagree.

In reviewing a claim of insufficiency of the evidence, we decide only whether, when viewed in the light most favorable to the judgment, the record discloses evidence that is reasonable, credible, and of solid value such that a rational jury could find the defendant guilty beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Section 186.22, subdivision (b)(1), provides that a defendants sentence will be enhanced if he is convicted of a felony 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 People may rely on expert opinions by police officers who specialize in street gang crime to establish the elements of the enhancement. (People v. Gardeley (1996) 14 Cal.4th 605, 617.) In particular, expert testimony may establish that a gang members crime benefited the gang by promoting respect for it. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382-1385.)

Defendant now concedes that he shot the victim and that he is a member of HNS. He asserts, however, that the People failed to prove he acted for the benefit of HNS and with the intent to promote, further, or assist in criminal conduct by its members; on the contrary, he claims, the evidence shows only that he acted to serve his individual interests, specifically his wish to gain respect within HNS. This argument fails because defendant does not suggest any non-gang-related reason why he might have thought that shooting Her could gain him such respect.

Defendant cites Detective Lees testimony that a gang member who shoots at a member of a rival gang is going to gain that notoriety, that respect within the gang itself. But this motive, even if defendant possessed it, is not inconsistent with the intent to benefit the gang and to promote its criminal purposes. In light of Detective Lees testimony, the jury could reasonably have concluded that defendant acted with both intents.

II

Defendant contends the trial court imposed an unauthorized sentence by ordering him to pay for court-appointed attorneys fees without providing him the notice and opportunity to be heard required by statute. The People concede the trial court did not do so, but claim defendant was not prejudiced. We shall remand the matter to the trial court with directions to follow the statutory procedure on this issue.

In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court, or upon the withdrawal of the public defender or appointed private counsel, the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof. . . . The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided. ( 987.8, subd. (b); italics added.)

Prior to the furnishing of counsel or legal assistance by the court, the court shall give notice to the defendant that the court may, after a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost of counsel. The court shall also give notice that, if the court determines that the defendant has the present ability, the court shall order him or her to pay all or a part of the cost. The notice shall inform the defendant that the order shall have the same force and effect as a judgment in a civil action and shall be subject to enforcement against the property of the defendant in the same manner as any other money judgment. ( 987.8, subd. (f).)

Because proceedings to charge a criminal defendant with paying attorneys fees involve the taking of property, due process, including notice and a hearing, is required. The notice must be such as is reasonably calculated to apprise the defendant of his potential liability and the possible effects of an order to pay attorneys fees. (People v. Smith (2000) 81 Cal.App.4th 630, 637 (Smith).) Inadequate notice does not necessarily require reversal, however; the defendant must show prejudice. (Id. at pp. 637-638; see Conservatorship of Rand (1996) 49 Cal.App.4th 835, 840-841.)

Here, as the People concede, the record does not show that defendant was advised pursuant to section 987.8, subdivision (f), before counsel was appointed. Nor does the probation report recommend, or even mention, that defendant might be required to pay attorneys fees. Defendant learned of this possibility only when the trial court said at sentencing: Further, the defendant is ordered to pay costs of appointed counsel, that is to the public defenders office, in payments as determined by the Department of Revenue and Recovery.

Relying on Smith, supra, 81 Cal.App.4th 630, the People assert defendant was not prejudiced because (1) there is as yet no order requiring him to pay fees and (2) he does not suggest he would have foregone appointed counsel had he been advised as required by section 987.8, subdivision (f). Smith is distinguishable because the defendant received notice before the appointment of counsel (albeit incomplete and inadequate) that he might have to pay counsels fees. (Smith, supra, 81 Cal.App.4th at pp. 637-639.) Here, by contrast, there was a total failure of the due process required by law. We cannot find this failure to be harmless error. Any order to pay fees which might issue at this point would be a miscarriage of justice. (Cf. Cal. Const., art. VI, 13.)

We shall remand the matter to the trial court for further proceedings in accordance with section 987.8. (Cf. People v. Flores (2003) 30 Cal.4th 1059, 1068-1069.)

DISPOSITION

Defendants convictions and sentence are affirmed except as to the trial courts order requiring defendant to pay attorneys fees. The matter is remanded to the trial court for further proceedings in accordance with part II of this opinion.

SIMS , J.

We concur:

SCOTLAND, P.J.

CANTIL-SAKAUYE , J.

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^[1] Defendant also denied shooting Her. According to defendant, someone had borrowed his car that afternoon.