P. v. Chhuon
Filed 1/8/13 P.
v. Chhuon CA2/5
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
CHANTHOEURN
CHHUON et al.,
Defendants and Appellants.
B239254
(Los Angeles County Super. Ct.
No. KA093016)
APPEAL
from a judgment of the Superior Court of
County, George Genesta, Judge.
Affirmed.
Jolene
Larimore, under appointment by the Court of Appeal, for Defendant and Appellant
Chanthoeurn Chhuon.
Heather
J. Manolakas, under appointment by the Court of Appeal, for Defendant and
Appellant Srun Ly.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, David E. Madeo, Deputy Attorney General,
for Plaintiff and Respondent.
____________________________
The jury found
defendants and appellants Chanthoeurn Chhuon and Srun Ly guilty in count 1 of
211),
title="">[1] in count 2 of assault with a firearm (§ 245,
subd. (a)(2)), and in count 3 of making criminal threats (§ 422). Allegations that a principal used a firearm
within the meaning of section 12022.53, subdivisions (b) and (e)(1), and that
the offenses were committed for the benefit of a criminal street gang, within
the meaning of section 186.22, subdivision (b)(1)(C), were found true with
respect to both defendants on all counts.
The jury also found, as to all counts, that Chhuon personally inflicted
great bodily injury within the meaning of section 12022.7, subdivision
(a). Chhuon admitted he suffered four
prior convictions within the meaning of the three strikes law (§§ 667, subds.
(b)-(i), 1170.12, subds. (a)‑(d)) and within the meaning of section
667, subdivision (a)(1). Ly admitted
that he suffered two prior convictions within the meaning of the three strikes
law and section 667, subdivision (a)(1).
Chhuon was
sentenced to life in state prison with
a minimum parole term of 15 years as to count one, tripled to 45 years to life
in prison under the three strikes law, enhanced by 10 years for the personal
firearm use allegation, 3 years for the great bodily injury allegation, and 5
years for the prior conviction allegation under section 667, subdivision
(a)(1). The trial court imposed and
stayed 42 years-to-life terms on counts 2 and 3.
Ly was
sentenced to life in state prison with a minimum parole term of 15 years as to
count one, tripled to 45 years to life in prison under the three strikes law,
enhanced by two 5-year terms for the prior conviction allegation under section
667, subdivision (a)(1). The trial court
imposed and stayed 35 years-to-life terms on counts 2 and 3.
Defendants
challenge the sufficiency of the evidence supporting the gang
enhancements. Chhuon additionally
contends the trial court abused its discretion by refusing to strike his prior
strike convictions. We affirm the
judgment.
Tran Nguyen met defendants in June 2010. Nguyen grew marijuana in his house. Ly helped Nguyen obtain a loan to pay for
“grow†equipment and electricity, and in exchange, Nguyen agreed to teach Ly
how to grow marijuana.
Ly assisted
Nguyen with the marijuana plants in Nguyen’s house every three to four days for
about a month. Ly lost his
transportation, and Chhuon began driving him to the house. In August and September 2010, Nguyen gave Ly
a key to the house and left the plants in Ly’s care while he was out of
town. Ly did not take care of the plants
as instructed causing tension between Ly and Nguyen. Nguyen wanted his key back but was afraid to
insist because he thought Ly would “bring his friends over.†Ly threatened Nguyen not to take the
key. Ly continued to come to the house
sporadically with Chhuon.
In December
2010, Nguyen sent Ly several text messages complaining that Chhuon was ruining
the marijuana by picking the fan leaves off the plants. Nguyen made it clear that he did not want
Chhuon involved in caring for the plants because he was not an “investor.†He told Ly not to allow Chhuon in his house
and asked him to at least prevent Chhuon from touching the plants. He texted Ly:
“I do not want to fucking deal with no more bullshit. I’m hear [sic]
to train YOU, not [Chhuon].†Nguyen
changed the locks to the house a few weeks after he sent the text messages, so
that Ly no longer had access to the marijuana plants.
In January
2011, Nguyen began to notice people coming by his house with a U-Haul
truck. At one point, the people driving
the U-Haul tried to break into the house by unlocking the door. Nguyen contacted Ly because he wanted
information about the men he believed were trying to rob him. He thought Ly would have information because
Ly and Chhuon were two of the only people who had been inside the house and
were familiar with the set-up. Nguyen
had not had other people over to the house because he was concerned he would be
robbed.
Nguyen no
longer trusted Ly, so he arranged to meet him at Starbucks rather than at the house. Ly texted Nguyen that he would be at
Starbucks in 10 minutes, so Nguyen got ready to go meet him. When Nguyen opened the front door, Ly sprang
up and pushed him inside to the kitchen.
Ly knocked Nguyen to the floor.
Chhuon came in behind Ly with a gun.
Nguyen kept asking why Ly was doing this. Chhuon told Nguyen that if he was not quiet
he would shoot him. Nguyen responded
that Chhuon should shoot him because he had nothing to live for. Chhuon then pistol-whipped Nguyen about his
head and knee caps while Ly held him down.
Ly got Nguyen in a choke hold and pushed him face-down on the
floor. Two other men appeared and they
bound Nguyen with duct tape. They
stuffed a T-shirt in Nguyen’s mouth and duct taped it shut. They
also covered his eyes with duct tape.
Nguyen was dragged into the living room.
He was able to rub his face on the floor enough to remove some of the
duct tape covering his eyes. He saw that
there were four people in the house. A
Hispanic man in the group noticed he could see, and re-taped Nguyen’s
eyes. The men stole some expensive
cultivating equipment, including fans, reflectors, carbon filters, and
ballasts, Nguyen’s cell phone, and several $2 bills. They also took $2000 in new hundred dollar
bills from Nguyen’s pocket. Nguyen did
not see who took the money, but he heard Chhuon say, “We just came up.â€
After the
men left, Nguyen managed to free himself.
He feared the men would return with their friends and retaliate against
him if he gave information about them to the police, so he did not report the
crimes immediately. Instead, he left the
house to see if he could find out why defendants had robbed him and to have a
friend treat his wounds. Nguyen
sustained several gashes to his head during the incident but did not require
stitches and did not seek professional medical help. He reported the crimes to the authorities
many hours later, at the urging of a friend.
Deputy Toan
Duong of the Los Angeles County Sheriff’s Department participated in the
investigation and testified as an expert witness for the prosecution. He arrested Ly and conducted a search of Ly’s
house in which officers discovered $1800 in new hundred dollar bills, several
$2 bills, and an ounce of marijuana. In
the course of his investigation, Deputy Duong also contacted Ly’s brother,
Sreang, who told him that he was an active Wah Ching member, and that Ly was an
associate of the gang. Sreang had the
Wah Ching letters and a dragon tattooed on his back.
Wah Ching is
an Asian gang in Los Angeles County. Wah
Ching is not territorial, in contrast to other gangs whose members will kill
rival gang members within their territory.
Associates of a gang do not go through a formal initiation, but they are
considered “down with the gang,†meaning that they are familiar with gang
culture, commit crimes with the gang, and the gang considers them to be
trustworthy. The dragon tattoo on Ly’s
back could indicate Ly was associated with the gang, although it was not a
definitive sign of gang membership.
There was no prior contact with Ly, and there were no field
identification cards of Ly on file, but based on Ly’s and Sreang’s dragon
tattoos, it was Deputy Duong’s opinion that Ly was an associate of Wah Ching.
When given a
hypothetical question encompassing the facts of this case, Deputy Duong
testified that, in his opinion, the crimes would have benefitted the gang. If a person was teaching a Wah Ching
associate to grow marijuana in his home and then suddenly stopped and changed
the locks, it would be a sign of disrespect.
The Wah Ching associate would have “gotten punked†and would have to
defend both his own reputation and the reputation of the gang. Because the proceeds of the alleged crimes
are often shared among Asian gang members, gang members who commit offenses
strengthen the gang’s base with stolen money and narcotics. Narcotics could be sold for money, and the
stolen money and proceeds from the narcotics could be used to buy more
narcotics and firearms, which Asian gangs are known to purchase. Committing the crimes would also benefit the
gang because gang members often brag about their crimes later, and word of
their activities will spread. Asian gang
members often associate with Asians from other gangs and brag about the crimes
their members commit, which bolsters the gang’s reputation and increases fear
in the community. It is common for Asian
gangs to target people they know because they believe their victims will be
afraid to report them to the police.
Under the
given hypothetical, Deputy Duong opined that the crimes were committed at the
direction of, or in association with, a criminal street gang. It is typical of Asian gang members or
associates of a gang to plan crimes with other members. Planning and sophistication were evident
under the facts given in the hypothetical.
One of the perpetrators entered the house first and subdued the victim,
and then a second perpetrator entered with a gun. This avoided any struggle over the gun with
the victim. Additionally, there is
generally a division of skills, with one person planning the crime and another
providing the physical force to carry it out, as was the case in the
hypothetical set of facts presented to the deputy.
Detective
Paul Gutierrez, a police officer from the City of Stockton, also participated
in the investigation and rendered his expert opinion. Deputy Duong provided Detective Gutierrez
with a phone number that he was able to trace back to Chhuon. Detective Gutierrez and other officers
arrested Chhuon in his car and then searched his apartment. When they went inside, the officers
encountered Sophat Him, Chhuon’s stepbrother and a documented Original Bloods
member. The officers discovered a
photograph depicting Chhuon throwing gang signs when they searched his vehicle.
vehicle depicted Chhuon standing behind someone in a red shirt who was throwing
a West Side Bloods sign.
Detective
Gutierrez testified that the Original Bloods are a documented street gang in
Stockton who are primarily Cambodian, but align themselves with other Blood
gangs that have members of other ethnicities, including the West Side
Bloods. Chhuon was living in the Louis
Park area, within Original Bloods territory in an apartment complex where
Detective Gutierrez previously made contact with numerous documented gang
members. Chhuon has several tattoos on
his back associated with the Original Bloods, including a tattoo of the letters
“OB.†Based on the evidence described,
it was Detective Gutierrez’s opinion that Chhuon was a member of the Original
Bloods.
DISCUSSION
Gang
Enhancements
The jury
found that defendants fell within the prohibitions of section 186.22,
subdivision (b)(1), which provides:
“[A]ny person who 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, shall, upon conviction of that felony, in addition and consecutive to
the punishment prescribed for the felony or attempted felony of which he or she
has been convicted, be punished . . . .â€
Defendants contend there was insufficient evidence to support the jury’s
findings that the crimes were committed for the benefit of the gang and committed
with the specific intent to promote criminal conduct by gang members. Defendants assert that the prosecution’s
expert witnesses testified to their theories of the case without reference to
facts. They argue the expert testimony
is based on speculation and is not sufficient to support the jury’s
findings. Their contentions lack merit.
“In
considering a challenge to the sufficiency of the evidence to support an
enhancement, we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.] We presume every fact in support of the
judgment the trier of fact could have reasonably deduced from the
evidence. [Citation.] If the circumstances reasonably justify the
trier of fact’s findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a contrary
finding. [Citation.] ‘A reviewing court neither reweighs evidence
nor reevaluates a witness’s credibility.’
[Citation.]†(
59-60 (Albillar).)
Section
186.22 requires that the prosecution prove beyond a reasonable doubt that the
underlying crime was committed: (1) for the benefit of, at the direction of, or
in association with any criminal street gang; and (2) with the specific intent to promote, further,
or assist in any criminal conduct by
the gang. (Albillar, supra, 51
Cal.4th at pp. 63, 65-66.)
To meet the
first prong, the crime must be gang-related.
(Albillar,
is committed by gang members. (
However, where an expert opines that “particular criminal conduct
benefited a gang by enhancing its reputation for viciousness[, this] can be
sufficient to raise the inference that the conduct was ‘committed for the
benefit of . . . a[] criminal street gang’ within the meaning of section
186.22[, subdivision] (b)(1).†(
As to the
second prong of the enhancement, “specific intent to benefit the gang is not required.
What is required is the ‘specific intent to promote, further, or assist
in any criminal conduct by gang members . . . .’†(People
v. Morales (2003) 112 Cal.App.4th 1176, 1198 (Morales); see People v.
Villalobos (2006)145 Cal.App.4th 310, 322 (Villalobos).) “‘“[C]riminal
conduct by gang members†[need not] be distinct from the charged offense, . . .
[nor is the prosecution required to] establish specific crimes the defendant
intended to assist his fellow gang members in committing.’ [Citation.]â€
(Albillar,
347, 353-354.) Gang membership alone
cannot prove the requisite specific intent (People
v. Gardeley (1996) 14 Cal.4th 605, 623-624 (Gardeley)), but “[c]ommission of a crime in concert with known gang
members is substantial evidence which supports the inference that the defendant
acted with the specific intent to promote, further or assist gang members in
the commission of the crime.
[Citation.]†(
“It is well
settled that a trier of fact may rely on expert testimony about gang culture
and habits to reach a finding on a gang allegation. [Citation.]â€
(In re Frank S. (2006) 141
Cal.App.4th 1192, 1196.) Here, the jury
could have reasonably drawn the inference that Ly was an associate of Wah Ching
and Chhuon was a member of the Original Bloods.
Ly’s brother, a self-proclaimed Wah Ching member who had Wah Ching and
dragon tattoos, told Deputy Duong that Ly was an associate of the gang. Ly also had a dragon tattoo, which can
indicate gang membership. Evidence was
presented that Chhuon was living in Original Bloods territory in an apartment
complex with numerous documented gang members; his stepbrother, who was in his
apartment at the time of the arrest, was a documented Original Bloods member;
Chhuon had a tattoo with the Original Bloods letters; and a photo of Chhuon
throwing gang signs was found along with a photo of him standing behind a man
throwing signs associated with the West Side Bloods, who had merged with the
Original Bloods.
The record
contains sufficient evidence that the crimes would have benefitted the
gang. Substantial evidence supports the
inference that defendants committed the crimes to defend the gang’s reputation
after Ly revoked their access to his house.
Wah Ching could utilize the proceeds to buy more guns and drugs, and
they could capitalize on the fear that rumors of the crimes would create to
successfully prey on others in the community without fear of
repercussions. The facts also reasonably
justify the jury’s finding that the crimes were committed at the direction of,
or in association with a criminal street gang, because of the level of
sophistication and planning involved in quickly and effectively subduing the
victim and relieving him of a significant amount of large equipment.
With respect
to the second prong, when there is sufficient evidence that a gang member
engaged in a crime with another gang member, it is “fairly inferable that he
intended to assist criminal conduct by his fellow gang members.†(Morales,
supra, 112 Cal.App.4th at p.
1198.) As we discussed, sufficient
evidence was presented to support the findings that Ly was a Wah Ching
associate, and Chhuon was an Original Bloods member. Deputy Duong testified that associate gang
members are familiar with gang culture, commit crimes with the gang, and are
considered by the gang to be trustworthy.
Although the crimes involve a gang member and an associate of a gang
rather than two gang members, the situations are sufficiently analogous to
support the inference that defendants had the requisite specific intent to
assist in criminal conduct of other gang members.
The
precedent upon which defendants rely does not affect our conclusions. In People
v. Albarran (2007) 149 Cal.App.4th 214, the Court of Appeal did not
consider the sufficiency of the evidence supporting the gang enhancement
because the trial court granted the defendant’s motion for a new trial on the
allegations. (Id. at p. 217.) Instead, it
determined that the admission of prejudicial gang evidence was not relevant to
the underlying charges. (
distinguishable. In those cases, the
defendant either acted alone, or there was a lack of expert testimony that the
specific crime charged would benefit the gang.
(In re Frank S., supra, 141
Cal.App.4th 1192 [the defendant acted alone and no evidence crime would benefit
the gang]; People v. Ramon (2009) 175
Cal.App.4th 843 [no evidence crime would benefit the gang];
650 [the defendant acted alone and insufficient evidence crime would benefit
the gang]; In re Daniel C. (2011) 195
Cal.App.4th 1350 [the defendant acted alone].)
In this case, however, there is evidence that defendants were a gang
member and an associate working in concert, and an expert witness testified as
to how the charged offenses would benefit the specific gang at issue.
Reversal on
the ground of insufficiency of the evidence “is unwarranted unless it appears
‘that upon no hypothesis whatever is there sufficient substantial evidence to
support . . .’†the jury’s finding. (
331.) Here, from the evidence as a
whole, jurors could have reasonably concluded that defendants committed the
offenses for the benefit of, at the direction of, or in association with the
Wah Ching criminal street gang, and that they did so with the specific intent
to promote, further, or assist criminal conduct by gang members.
Chhuon’s
Prior Strike Convictions
Chhuon contends the trial court abused its discretion in
failing to strike his prior strike convictions pursuant to section 1385 and
the court based its decision on his criminal conduct without considering any of
the relevant mitigating factors. There
is no merit in this argument.
Under
section 1385, the trial court has discretion to strike a prior felony
conviction allegation in furtherance of justice. (Romero,
supra, 13 Cal.4th 497, 529-530.) In order to do so, the trial court “must
consider whether, in light of the nature and circumstances of his present
felonies and prior serious and/or violent felony convictions, and the particulars
of his background, character, and prospects, the defendant may be deemed
outside the scheme’s spirit, in whole or in part, and hence should be treated
as though he had not previously been convicted of one or more serious and/or
violent felonies.†(People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) A trial court
must enter a statement of reasons in the minutes of the court when dismissing a
prior conviction; however, it is not required to “‘explain its decision not to
exercise its power to dismiss or strike[.]’â€
(People v. Carmony (2004) 33
Cal.4th 367, 376 (Carmony).)
This court
reviews a ruling upon a motion to strike a prior felony conviction under a
deferential abuse of discretion standard.
(Williams,
that the trial court’s decision was unreasonable or arbitrary. (People
v. Superior Court (Alvarez )
(1997) 14 Cal.4th 968, 977-978 [presumption that trial court acts to achieve
lawful sentencing objectives].) “Where
the record demonstrates that the trial court balanced the relevant facts and
reached an impartial decision in conformity with the spirit of the law, we
shall affirm the trial court’s ruling . . . .â€
(People v. Myers (1999) 69
Cal.App.4th 305, 310 (Myers).) “It is not enough to show that reasonable
people might disagree about whether to strike one or more of [the defendant’s]
prior convictions.†(
“[A] trial court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with it.†(Carmony,
supra, 33 Cal.4th at p. 377.)
Chhuon
admitted that he was convicted of robbery, rape in concert, burglary, and
assault arising out of a single incident in 1998. In that incident, Chhuon and four other men
broke into a home at 1:00 a.m. Two of
the men held down a woman while a third man raped her in front of her
family. One of the men involved also
pistol-whipped a victim during the home invasion. (People
v. Mom (1999) 80 Cal.App.4th 1217.)
Chhuon was sentenced to ten years in prison for his crimes. He was paroled in 2008. He violated parole and then committed the
instant crime less than a year after his release from parole in 2010.
At the
his prior convictions were remote in time; (2) he was young when he committed the prior
crimes; (3) at his then age of 32, he
still had time to reform; and (4) he had
minimal association with the victim in the present case prior to the
incident. The trial court considered the
relevant factors but denied the Romero motion,
finding that Chhuon fell within the spirit of the three strikes law:
“[T]here is
no remoteness in time, . . . because [Chhuon] was not in the community for a
good seven, eight years to be able to commit crimes. And then the crime he committed, absent the
sex, was a mirror image of the other crime.
Home invasion robbery where this time, at least, he was personally
armed. And he personally inflicted great
bodily injury.
“. . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .
“Looking at
the spirit of the three strikes law, he has two serious or violent
felonies. He’s not in the community for
more than four years where he picked up the new offense . . . . But it’s one in which he’s recruited and is a
willing participant . . . .
“. . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .
“The man’s
age has not mellowed him. This man’s age
has not distanced him from a life of crime.
This is [] a man [whose life has been] . . . punctuated by serious
felonies . . . .
“For Mr.
Chhuon, not in the community that long and he goes back to escalation of what
he did before in terms of the personal use allegations and the personal GBI
allegations and the gang allegations.
This was a brazen crime. It was a
planned crime, and it took some effort to relieve the victim of all the items
of value in the residence, which indicates considerable planning.
“And, again,
this third strike is . . . a violent felony in lieu of the fact it wasn’t
violent in terms of classification. It
is violent because, in fact, violence was used during the crime, and violence
was exercised by [Chhuon]. So he clearly
comes within the spirit of the three strikes law.
“The court
doesn’t find any mitigating issues or factors to take into consideration within
the meaning of Williams and
exercise its discretion to strike one or more of [Chhuon’s] priors. The motion to strike [is] denied.â€
There is
nothing irrational or arbitrary about the trial court’s decision. As the court discussed at length, Chhuon
committed serious violent crimes of a similar nature in the short span of time
he spent outside of prison. His personal
criminal role escalated in the second incident.
Of all the perpetrators involved, Chhuon alone inflicted great bodily
injury on the victim, pistol-whipping him on the head and knee caps. Chhuon’s considerable prison term did not
serve as a deterrent to future criminal activity. He showed no propensity for change with
age. Accordingly, we conclude that the
trial court acted within its discretion in denying his Romero request. (
378-380; Myers, supra, 69 Cal.App.4th at p. 310.)
DISPOSITION
The judgment is affirmed.
KRIEGLER,
J.
We concur:
TURNER,
P. J.
ARMSTRONG,
J.
unless otherwise indicated.
name="_ftn2" title="">[2] Detective Gutierrez opined the gang signs were associated
with the Crips.
