P. v. Chong

























Filed 2/22/13 P. v. Chong CA2/1

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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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




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THE PEOPLE, Plaintiff and Respondent, v. DANIEL CHONG and CHARLIE WI WANG, Defendants and Appellants. ___________________________________ THE PEOPLE, Plaintiff and Respondent, v. DANIEL CHONG, Defendant and Appellant.

B237494 (Los Angeles County Super. Ct. No. KA089924 consolidated with No. GA078128) (Los Angeles County Super. Ct. No. KA089924 consolidated with No. GA078076 and No. GA078128)

APPEALS
from judgments of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. Charles E.
Horan and Robert M. Martinez, Judges.
Affirmed as to Chong. Affirmed in
part and reversed in part as to Wang.

Joseph
F. Walsh for Defendant and Appellant Chong.

Wallin
& Klarich and Stephen D. Klarich for Defendant and Appellant Wang.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan
Pithey, Supervising Deputy Attorney General, and Mary Sanchez, Deputy Attorney
General, for Plaintiff and Respondent.

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Defendants
Daniel Chong and Charlie Wi Wang appeal from the judgments entered following
separate jury trials in which Wang was convicted of attempted murder and
assault with a deadly weapon, with gang findings, and Chong was convicted of
attempted murder, three counts of assault
with a deadly weapon, and two counts of robbery, with gang findings as to
the attempted murder and one of the assault charges. Chong contends the evidence was insufficient
to support his attempted murder conviction, the trial court erred by
consolidating the attempted murder charge with the remaining charges and by
denying his motion to sever the attempted murder charge, and the trial court
violated his confrontation and due process rights by precluding him from
cross-examining the gang expert regarding his interviews with codefendants and
witnesses. Wang contends the evidence
was insufficient to support his attempted murder conviction and the gang
enhancement findings, and the trial court erred by admitting a photograph of
the injury suffered by the attempted murder victim. We agree with respect to Wang’s gang
enhancement findings, but otherwise affirm.

BACKGROUND

Chong’s trial

1. Attempted murder of
Daniel M.

About 5:00 p.m. on March 23, 2009, Daniel M., his brother Brian, his friend
Joshua M., and two other friends were walking in El Monte. (Undesignated date references pertain to
2009.) Daniel, who was 17 or 18 years
old, was a member of the El Monte Flores (EMF) gang, but he testified none of
his companions were gang members. As
they walked past a tea shop called E-Cup, Joshua said that someone inside E-Cup
was staring at them. Joshua began
walking toward E-Cup and his companions followed. Daniel stopped about 30 feet from E-Cup, but
his brother Brian walked up and spat on the window of E-Cup. Instantly, a group of about seven young Asian
men came out of E-Cup and angrily confronted Daniel’s group in the parking
lot. The two groups exchanged words and
argued. Joshua loudly proclaimed his
desire to fight Wang, who was standing in the doorway of E-Cup staring at
Daniel’s group. No physical fighting
ensued at that time, and Daniel’s group walked away toward a friend’s house a
few blocks away.

As Daniel’s
group walked down Strozier Avenue,
four cars, including a white Lexus and a black Acura, rapidly approached them,
stopped abruptly, and parked. A total of
10 to 12 young Asian men emerged from the four cars and rapidly approached
Daniel’s group. They appeared to be
angry and ready to fight. Two of the
young Asian men loudly yelled, “Wah Ching,” which was the name of an Asian
gang. Everyone began fighting, with two
or three of the Asian men fighting every member of Daniel’s group. Wang and Hung Le were punching Daniel with
closed fists. Daniel was defending
himself by punching back. As far as
Daniel knew, no one in either group had any weapons, so he anticipated only a
fistfight. Suddenly another Asian man
ran toward Daniel and plunged a knife into his stomach. Daniel took a couple of steps, was struck again
with the knife on the back of his head, and fell to the ground. Daniel’s friends picked him up, put him in a
car, and drove him to a hospital. In the
car, Daniel lifted his shirt and saw his “guts hanging out” of his knife wound,
which went all the way across his body.
His wounds required surgery and a week-long hospital stay. He had a foot-long scar from the knife wound
and still suffered pain and physical disabilities from his wound at the time of
trial in September of 2011.

Daniel
testified that Chong was not one of the people he was fighting with or the
person who stabbed him. Daniel did not
remember seeing Chong at the fight on Strozier Avenue. Daniel denied that the fight had anything to
do with gangs; it was instead “a private fight.” Sheriff’s Detective Tom Yu, who investigated
the crime and served as the prosecution’s gang expert, testified on
cross-examination that during his investigation he learned that Hung Le and
Wang were the people who fought with Daniel, Hung Duong was the person who
stabbed Daniel, and Duong went to the crime scene in the black Acura, while
Chong went there in the white Lexus with Danny Liu and Evan Dou. Yu had no information that anyone in the
white Lexus had a knife, and Daniel never told Yu that Chong was present.

Yu recorded
an interview with Chong at Chong’s home on August 8, and the recording was
played for the jury. In the interview,
Chong said he had driven to E-Cup in his dark gray Scion TC. He was playing poker with Wang and Hung Le
when they saw “a group of EMF guys” approaching, making the EMF gang hand
sign. The EMF group spat on the windows
and walls of E-Cup, and members of the Asian Krazy Boys gang (AKB) who were in
E-Cup ran out and “went after” the EMF group.
Chong denied belonging to any gang, but he said he hung out with some
AKB members and Wah Ching members Wang, Danny Liu, and Evan Dou. Chong, Wang, Liu, and Dou followed the AKB
members in Dou’s white Lexus. Chong
initially said that “AKB get [sic]
there first” and “fucked them up,” but “it was over” before Chong arrived, and
Chong “didn’t do shit.” Chong then said
he got out of the car and saw “a rumble,” but “didn’t swing at all.” Chong then admitted he and a “short guy from
AKB” had tried to chase “[s]ome guy with a truck,” but “[t]hen he threw a
hammer.” Chong described the man who
threw the hammer as “some old guy. He
looked like some OG [original gangster]” “from EMF.” Chong said the “old guy” “threw it at me and
then it—it missed and it hit someone’s car.”
Chong ran back to the Lexus and his group left.

On
cross-examination, Yu testified that Daniel had told him that after the
stabbing, Daniel’s brother threw a hammer to protect Daniel from further
injuries. Other suspects told Yu that
everyone fled after the hammer was thrown.

Yu
testified as an expert on Asian gangs, including Wah Ching and AKB, which are
allied, meaning that “[t]hey are on good terms and they operate together. They sell drugs together. They traffic guns.” They “go on missions together” and “will back
each other up.” The primary activities
of the Wah Ching gang include murders, attempted murders, drive-by shootings,
assaults, drug trafficking, robberies, thefts, and weapons violations. The E-Cup and the site of the attempted
murder on Strozier Avenue are within territory claimed by the EMF gang, with
which the Wah Ching gang does not get along.

In response
to a hypothetical question based upon the prosecution’s evidence regarding the
events of March 23, Yu opined that the crime was committed for the benefit of,
and in association with, the Wah Ching gang.
He explained that spitting toward other gang members was “the ultimate
disrespect” and required that the offended gang members either retaliate or
suffer damage to both the gang’s reputation and their personal reputations
within the gang. It did not matter
whether “the actual spitter” or some other member of his group was
attacked. Yu further opined that it
would be important to bring enough gang members and weapons to win the
fight. He testified that gang members
carry weapons when they go into the territory of a rival gang to carry out a
mission because their rivals are likely armed and a failure to carry arms would
leave them unprepared and vulnerable.
The presence and participation of the “backup members” of the
group—those who did not actually stab the victim—was critical because it
provided numerical superiority and ensured that “the stabbing actually
happen[ed].” Yu testified that his
opinion was based upon his “overall training and experience, especially [his]
experience as a gang detective in the field of Asian gangs, specifically Wah
Ching.”

Yu
testified that he had had contact with Chong about six times. Yu opined that Chong was a member of the Wah
Ching gang. He based his opinion on
Chong’s admission that he was an active member of the gang when Yu spoke to Chong
at a hospital. On cross-examination, Yu
testified that during prior contacts with Chong, Chong had told him he was an
active member of AKB. At the August 8
interview with Chong, Yu filled out a field identification card for Chong on
which Yu noted Chong was a “suspected” member of Wah Ching. Chong stated during his October 2 booking
that he was a member of the Wah Ching gang.

2. Assault with a deadly
weapon on Joshua G.

Sometime in
September, 15-year-old Joshua G. accidentally bumped shoulders with Wang, whom
Joshua knew as “Chicken,” in the hallway at Arcadia High School. Wang asked Joshua where he was from. Joshua recognized this as a gang challenge
and replied, “‘I don’t bang. I’m not
from nowhere.’” Wang responded by
saying, “‘Wah Ching gang’” and pushing Joshua.
Joshua pushed Wang back and called him “a little bitch.” Joshua and Wang then went to their
classes. Thereafter, Wang stared at
Joshua whenever they passed one another at school.

About 2:45
p.m. on October 2, Joshua, David Z., Clifford C., and Adam I. were walking from
school toward Adam’s apartment in Arcadia when Joshua and David saw Wang in the
parking lot of an El Pollo Loco. Joshua
and his friends continued walking past the restaurant and to Adam’s apartment,
where they waited in the carport for another friend’s mother to pick them up
and take them to the beach. Adam went up
to his apartment, while Joshua, David, and Clifford sat on a sofa in the
carport.

About five
minutes after they saw Wang outside El Pollo Loco, Wang and Danny Liu quickly
and aggressively entered the carport and approached the sofa on which Joshua,
David, and Clifford sat. Joshua
testified that two additional young Asian men accompanied Wang and Liu. David testified that Liu said, “‘I heard you
got beef with Wah Ching,’” whereas Clifford and Joshua testified that Liu and
Wang yelled, “Wah Ching gang.” All of
the young Asian men then “jumped on” Joshua and began hitting him hard with
closed fists and kicking him. Joshua put
his arms over his head to block the blows, but never got off the couch. Clifford and David ran away during the
attack.

Joshua
testified that he pursued Wang when his attackers ran out of the garage, but
stopped when Wang ran behind Liu, who pointed a knife at Joshua and said, “‘Wah
Ching.’” Liu, Wang, and the other two
attackers then ran to a gray car parked in the alley, got in, and left. Joshua thought the car was a “Zion.” He identified the car in a photograph at
trial.

David
returned after the attack and helped Joshua to the El Pollo Loco, where a
friend with a car drove them to a hospital.
Joshua suffered injuries to his head, neck, and arms. He had lacerations on his left hand, left
elbow, right arm, forehead, face, and right ear. The injuries required sutures and left scars. Joshua spent one night in the hospital. Although Joshua did not testify that he was
cut with a knife or scissors, photographic exhibits showing Joshua in the
hospital depicted numerous long, thin, relatively straight cuts on his face,
neck, and left arm and gaping cuts on his left hand, in addition to other
wounds.

On
cross-examination, Joshua testified that Chong was one of the four men who
attacked him. Clifford did not know
whether Chong was one of the men who attacked Joshua, but David testified that
Chong was not one of the attackers.

Detective
John Bonomo interviewed Chong at the police station along with Officer Fowler
about 10:00 p.m. on October 2. A
recording of the interview was played at trial.
During the interview, Chong said he was “[n]ot really” involved in a
gang; he “used to roll with AKB,” but since he was shot, he “just kick it with
Arcadia people now.” Bonomo asked about
a photograph on Chong’s phone of Chong “throwing up the Dub-C with the circled
money.” Chong said the phone was not
his, then said he had purchased it from a friend. Bonomo asked Chong what happened with the
fight in Arcadia. Chong initially denied
knowing about a fight. Bonomo said he
knew Chong drove, but was not involved in the fight. Chong said, “Yeah.” He then said the fight occurred because “that
guy punched ‘Chicken’ in the face in school before.” Chong agreed with Bonomo’s assertion that the
other participants were “Kevin, Danny, and ‘Chicken.’” Chong admitted that before the “rumble” in
Arcadia, he gave Danny Liu his folding knife.
Chong “told him to like yeah, don’t do anything just, yeah-yeah.” Liu gave the knife back to Chong when they
came back to the car.

In response
to a hypothetical question based upon the prosecution’s evidence regarding the
attack on Joshua, Yu opined that the crime was committed for the benefit of,
and in association with, the Wah Ching gang.
He explained that respect was critical to the gang and its members, and
gang members “earn[] their stripes” by committing violent acts in the presence
of their fellow gang members. Yu
testified that his opinion was based upon his training and experience in the
field of Asian gangs.

3. Robberies and assaults
with a deadly weapon at Kohl’s

About 4:00
p.m. on October 2, loss prevention officers Patricio Sanchez and Erik Pelaez
saw Chong enter a Kohl’s department store in Monrovia with three young Asian
men. Pelaez thought they looked like
gang members. Sanchez and Pelaez watched
the four young men move around the store.
One of the men tried on a jacket, took it off, and handed it to
Chong. Chong tried on the jacket, took
it off, then put it back on. The group
wandered through the store, then walked out.
Chong was still wearing the jacket when he left, but did not pay for it. At trial, the prosecutor played a video
recording from the store’s surveillance camera in the shoe department, showing
Chong wearing the jacket in issue.

Sanchez and
Pelaez pursued the group and caught up with them in a parking lot. Pelaez got in front of Chong, identified
himself as a Kohl’s loss prevention officer, and asked Chong to return to the
store. Chong bumped Sanchez and swung
his arm at Pelaez. Pelaez grabbed Chong’s
arm, but Chong slipped out of the jacket.
Sanchez grabbed Chong and asked him to return to the store. Chong removed a knife from his trouser pocket
and swung it toward Sanchez’s face three times.
Sanchez released Chong. Chong
swung the knife at Pelaez. Sanchez and
Pelaez stepped back, and Chong and his group ran away.

Chong
called no witnesses in his defense.

4. Verdicts and sentence

The jury
convicted Chong of attempted murder, three counts of assault with a deadly
weapon (Joshua, Sanchez, Pelaez), and two counts of robbery. The jury found that the attempted murder and
assault with a deadly weapon on Joshua were committed for the benefit of, at
the direction of, or in association with a criminal street gang, with the
specific intent to promote, further, or assist in href="http://www.mcmillanlaw.com/">criminal conduct by gang members. The jury acquitted Chong of burglary and
found not true allegations that he personally used a knife in the
robberies. The court sentenced Chong to
prison for 12 years, consisting of 9 years for attempted murder, 1 year for
assault with a deadly weapon on Joshua, and 1 year for each robbery
charge. The trial court struck the gang
enhancement with respect to the attempted murder charge and stayed it with
respect to the assault with a deadly weapon charge.

Wang’s trial

1. Attempted murder of
Daniel M.

Daniel’s
testimony at Wang’s trial was consistent with his testimony at Chong’s trial,
with minor differences. Daniel testified
that about 10 young Asian men came out of E-Cup and confronted Daniel’s group
in the parking lot. He testified that 10
to 13 young Asian men “rushed” his group on Strozier Avenue. He did not know how many of the attackers
yelled “Wah Ching.” Daniel testified
that after he was cut across the abdomen, he felt and saw his intestines
protruding and held them in his hands until he collapsed. He identified Wang in the courtroom as one of
the two young men who was punching him and testified regarding his prior
identification of Wang’s photograph in an array shown to him by police. The most significant difference in Daniel’s
testimony was his description of how he suffered the knife wound across his href="http://www.sandiegohealthdirectory.com/">abdomen. On direct examination, he described the knife
as having a blade six to seven inches long.
On cross-examination, he testified that the knife went into his right
side, then he turned, “[a]nd that’s why I brought the whole knife, like, this
way (indicating).” Daniel agreed that he
turned “to the right and then it went across from right to left on [his] stomach.”

Yu
testified that he interviewed Wang on June 25.
A recording of this interview was played for the jury. Wang admitted he belonged to the Wah Ching
gang and that he socialized with members of the AKB gang at E-Cup. Wang told Yu he was at E-Cup when a group
spat on the window, “threw up the Flores sign,” and yelled “El Monte
Flores.” “One of the guys” went outside
and asked the group why they were “‘destroying the place.’” Then someone known as “‘CVS’” went outside,
but “the Mexicans didn’t want to do anything.”
They just cursed Asians, then left.
Wang and others who had been in E-Cup went in four cars looking for
them. Wang was in the black Acura with
Hung Le. He “basically” “went there to
back them up.” The four cars drove
around for about five minutes before they found the offending group. When they got out of the cars, someone loudly
yelled, “Wah Ching.” Then, “We just
fought.” Wang also told Yu that the
fight was “‘basically over’” when he arrived and that he “‘didn’t rush
anyone.’” Wang knew that members of AKB
carried knives and agreed he was there to “back them up.”

In his role
as an expert on Asian gangs, Yu testified that Wah Ching and AKB are Asian
gangs in the San Gabriel Valley that are “allied” and “back each other
up.” Members of the Wah Ching gang rise
within the gang by selling drugs and committing violent crimes, such as
stabbings and drive-by shootings, in the presence of their fellow gang
members. The EMF gang is one of the Wah Ching
gang’s rivals. The E-Cup and the site of
the attempted murder on Strozier Avenue are within territory claimed by the EMF
gang. Yu opined that when members of the
Wah Ching gang go on a mission, some of them will be armed to ensure the
success of the mission.

The
prosecutor introduced evidence that Wah Ching gang member David Do was
convicted of a December 1, 2006 murder and attempted murder and that on August
2, 2007, Wah Ching gang member James Chang pleaded guilty to two counts of
assault with a firearm.

In response
to a hypothetical question based upon the prosecution’s evidence regarding the
events of March 23, Yu opined that the crime was committed for the benefit of,
and in association with, the Wah Ching gang.
He explained that spitting was “the ultimate sign of disrespect,” which
required the Wah Ching gang members present to retaliate to avoid tarnishing
the gang’s reputation.

Yu opined
that Wang was a member of the Wah Ching gang.
He based his opinion on past contacts with Wang and Wang’s admission of
membership to Yu. Yu also testified that
when he interviewed Wang on June 25, Wang was wearing a red hat with a “W,” a
red belt with a “W,” and red shoes with red laces, all of which signified his
loyalty to the Wah Ching gang, which identified with red and the letter “W.”

Wang
testified that he had never been a gang member, but some of his friends were
members of the Wah Ching gang. He
explained that he only told Yu he was a Wah Ching gang member because he was
trying to impress three friends who were present during the interview, which
took place outside Tapioca Restaurant.
Wang explained that the “W” on his hat and belt represented his
initial. Although he told Bonomo, “I’m
not even involve [sic] in Dubs [Wah
Ching] anymore,” he was never involved.

Wang
testified that on March 23 he was hanging out at E-Cup with his friends,
including Chong, when four or five Hispanic young men approached through the
parking lot. One of that group spat on
E-Cup’s window. A couple of the young
Asian men inside E-Cup went outside and confronted the group. Wang stayed inside, but stood near the door
and watched. He did not stare at
anyone. The two groups appeared to talk
for a few minutes, then the Hispanic group walked away and the Asian men who
had gone outside reentered E-Cup. Wang
and Chong talked about what had happened for about 15 minutes. Hung Le was about to leave and agreed to
drive Wang home to Arcadia. Wang got
into a black Acura, which Hung Duong drove.
Wang did not notice anyone else leaving E-Cup or see any cars from E-Cup
driving with them. After a couple of
minutes, Duong stopped the Acura. Wang
saw people fighting. He got out of the
car to get a better view, but stayed right by the car door and did not join the
fight. After a while, people stopped
fighting and ran to cars. Wang got back
in the black Acura. Duong drove to a
parking lot. Wang asked Le what
happened. After about 15 minutes, Le
took Wang home.

Wang
testified that he told Yu he was at the fight as “back up” because Yu kept
asking him the same questions and he just wanted to go home. Wang explained that he was just making a
“random comment” when he told Yu that the Wah Ching and AKB gangs were
“‘cool.’”

2. Assault with a deadly
weapon on Joshua G.

Joshua,
David Z., and Clifford C. provided testimony at Wang’s trial that was
consistent with their testimony at Chong’s trial, except that Joshua testified
that three of his four assailants said, “Wah Ching,” and he identified the car
in which the assailants fled as a “Scion.”
David and Joshua identified Wang at trial as the person with whom Joshua
had an incident at school and as one of the men who came into the garage and
“jumped” Joshua. David testified he had
previously identified Wang from a photographic array. Joshua testified that at the preliminary
hearing he was afraid, and thus falsely denied seeing Wang in the
courtroom. Clifford testified that he
could not recall who he selected in a photographic array and did not see the
person he selected in the courtroom. He
admitted he was afraid.

Bonomo
testified that he recorded interviews he had with Wang, first at school and
then at Wang’s house, on October 5. The
recordings were played for Wang’s jury.
In the first interview, Wang admitted fighting with Joshua, but said,
“No one stabbed him. Just gave him
internal bleeding.” During the second
interview, Wang admitted that he had used scissors from his backpack on Joshua,
but said he “only slash[ed] him a few times.”
He said the scissors were in Chong’s car. He also told Bonomo that Joshua got under a
van and “tried to crawl in but we kept looking for him.” Wang did not tell Bonomo that he used the
scissors to defend himself against Joshua.
Bonomo searched Chong’s car and found a pair of scissors in a cup holder
in the back seat. The parties stipulated
that Joshua’s blood was on the scissors.

In response
to a hypothetical question based upon most of the prosecution’s evidence
regarding the attack on Joshua, not including the incident at school, Yu opined
that the crime was committed for the benefit of, and in association with, the
Wah Ching gang because it would boost the gang’s reputation.

Wang
testified that after he and Joshua bumped into one another at school in
September, Joshua pushed him, laughed at him, and called him “bitch.” Wang just walked away with his head down and
without saying anything. Over the next
month, Joshua repeatedly laughed at Wang and called him names. Wang was frustrated by this, but not angry.

Wang
testified that Chong was giving him a ride home after school on October 2. Danny Liu, whom Wang knew was a member of the
Wah Ching gang, and Kevin were also in the car.
As Chong drove away from the school, Wang saw Joshua and said, “‘That’s
the guy that’s been picking on me at school.’”
Liu said, “‘I’ll talk to him for you.’”
Chong parked the car, and Wang, Liu, and Kevin got out. Wang and Liu walked into the carport where
Daniel was seated with two other young men.
Liu asked Daniel, “‘You got a problem with my friend?’” Daniel arose and began fighting with Liu. They fought for about 30 seconds, then Daniel
“rushed” Wang. Wang stepped back and
pulled a pair of scissors from the side pocket of his backpack. Acting in self-defense, Wang swung the
scissors “randomly” at Daniel. Daniel
still wanted to fight, so Wang ran away.
Daniel chased Wang, who ran toward his friends. One of his friends pulled out a knife and
told Daniel to stop. Wang and his
friends got into Chong’s car and left.

3. Verdicts and sentence

The jury
convicted Wang of attempted murder and assault with a deadly weapon. The jury found that the offenses were
committed for the benefit of, at the direction of, or in association with a
criminal street gang, with the specific intent to promote, further, or assist
in criminal conduct by gang members. The
court sentenced Wang to prison for 10 years, consisting of 9 years for
attempted murder and 1 year for assault with a deadly weapon. The trial court stayed the gang enhancements.

DISCUSSION

>1. Sufficiency
of evidence to support Chong’s attempted murder conviction

Chong’s
liability for the attempted murder of Daniel was based upon the theory that he
aided and abetted an assault with a deadly weapon or assault by means of force
likely to produce great bodily injury, a natural and probable consequence of
which was an attempted murder. Chong
contends that the evidence was insufficient to support his attempted murder
conviction because he “simply got out of the car and chased after an older
member a [sic] the EMF gang. [Chong] had no weapon. [He] did not approach or threaten Daniel
. . . . He was merely
present at the scene and did not even know that [Daniel] had been
stabbed.” Chong also seemingly argues
that his conviction was predicated solely upon his gang membership.

One who
knows another’s unlawful purpose and intentionally aids, promotes, encourages,
or instigates the crime is guilty as an aider and abettor. (People
v. Prettyman (1996) 14 Cal.4th 248, 259 (Prettyman).) Although
neither mere presence at the scene of a crime nor failure to prevent a crime is
sufficient to constitute aiding and abetting (People v. Stankewitz (1990) 51 Cal.3d 72, 90), the jury may
consider facts such as presence at the scene of the crime and companionship and
conduct before and after the offense, including flight, in deciding whether a
defendant knew of the perpetrator’s intentions and intended to facilitate or
encourage the crime. (>People v. Mitchell (1986) 183
Cal.App.3d 325, 330.)

An aider
and abettor is guilty not only of the offense he or she intended to facilitate
or encourage (the target crime), but also of any other crime committed by the
person he aids and abets that is the natural and probable consequence of the
target crime. (Prettyman, supra, 14
Cal.4th at p. 261.) An aider and abettor
need not have intended to encourage or facilitate the particular offense
ultimately committed, and need not have any specific intent that is an element
of the offense committed. (>Ibid.)
A particular criminal act is a natural and probable consequence of
another criminal act if, under all of the circumstances presented, a reasonable
person in the defendant’s position would or should have known that the charged
offense was a reasonably foreseeable consequence of the act aided and abetted
by the defendant. (People v. Medina (2009) 46 Cal.4th 913, 920 (Medina).) “But ‘to be
reasonably foreseeable “[t]he consequence need not have been a strong
probability; a possible consequence which might reasonably have been
contemplated is enough. . . .”’”
(Ibid.) “The precise consequence need not have been
foreseen.” (Id. at p. 927.)

Viewing the
record in the light most favorable to the judgment, substantial evidence
supports Chong’s attempted murder conviction.
After the verbal confrontation with Daniel’s group—whom Chong characterized
as “a group of EMF guys” who were making gang hand signs before spitting on the
window at E-Cup—Chong could have remained in the tea shop or driven his own car
home or to some other destination. He
did neither. By his own admission, he
left E-Cup at the same time as the AKB gang members who “went after” Daniel’s
group; got into Evan Dou’s car with Dou, Wang, and Danny Liu, whom he knew were
Wah Ching gang members; and went in a caravan of four cars of AKB and Wah Ching
gang members. In light of Yu’s expert
testimony, the jury could infer that the Wah Ching and AKB members “went after”
Daniel’s group because they intended to retaliate for the perceived disrespect
Daniel’s group had shown by spitting on the window at E-Cup. When the four-car caravan caught up with
Daniel’s group on Strozier Avenue, three or four people got out of each car,
ran straight toward the members of Daniel’s group, and began punching the
members of Daniel’s group, with two or three people from Chong’s group fighting
each member of Daniel’s group. Two
people shouted “Wah Ching.” Chong
admittedly got out of Dou’s car and chased someone—perhaps Daniel’s brother
Bryan—whom Chong thought looked like a higher ranking member of the EMF
gang. Chong desisted only when the
person he was chasing threw a hammer at him, and he then fled with Dou, Wang,
and Liu. Chong’s companionship with the
nine to eleven other co-perpetrators before the attack, his action in concert
with them to leave E-Cup and locate and attack Daniel’s group, and the
inference of a gang-related motive supported by Yu’s expert testimony and
Daniel’s testimony about the shouting of “Wah Ching” at the outset of the
attack constituted substantial evidence supporting reasonable inferences that
Chong both knew his companions intended to assault Daniel’s group and
intentionally aided that assault by directly participating in it. In addition, according to Yu’s testimony,
Chong’s participation aided the assault by contributing to the numerical
superiority of the AKB-Wah Ching group over Daniel’s group, thereby assuring
the success of the “mission.” Thus,
Chong was not merely present at the scene of the crime, and his conviction was
not premised solely upon his gang membership.

We note
that Chong does not challenge the sufficiency of evidence to show an aggravated
assault, as opposed to a simple assault, or to show that attempted murder was a
natural and probable consequence of the target crime. Nor does he challenge the sufficiency of the
evidence to establish that Duong specifically intended to kill Daniel when he
plunged the knife into him and sliced open Daniel’s abdomen. We briefly note that kicking or striking a
victim with one’s hand may be sufficient to constitute an assault by means of
force likely to produce great bodily injury.
(People v. Aguilar (1997) 16
Cal.4th 1023, 1028.) In addition,
although “prior knowledge that a fellow gang member is armed is not necessary
to support a defendant’s murder conviction as an aider and abettor” (>Medina, supra, 46 Cal.4th at p. 921), the jury could reasonably infer,
based upon Daniel’s testimony that all members of Chong’s group immediately
attacked Daniel’s group, evidence of Chong’s gang membership, and Yu’s
testimony that gang members carry weapons when they go into the territory of a
rival gang on a “mission,” that Chong knew that one or more people in the group
of 10 to 12 AKB and Wah Ching gang members would be armed as they carried out
their mission to retaliate against the “group of EMF guys” within EMF’s own
territory.

>2. Consolidation
of charges against Chong

Separate
cases were filed against Chong for the crimes at Kohl’s (No. GA078076), the
aggravated assault on Joshua (No. GA078128), and the attempted murder of Daniel
(Case No. KA089924). Three additional
codefendants were charged in the aggravated assault case and five additional
codefendants were charged in the attempted murder case. The prosecutor filed a written motion to
consolidate the three cases, arguing that Chong was involved in all three cases
and Liu and Wang were involved in the aggravated assault on Joshua and the
attempted murder of Daniel, all named defendants were members of Wah Ching and
AKB gangs or acting in association with those gangs, gang enhancements were
alleged in regard to the aggravated assault on Joshua and the attempted murder
of Daniel, the crimes against Joshua and Daniel were committed in a similar
manner and with use of stabbing instruments, and the crimes were committed
“close in time and space.” The
prosecutor also argued that a joint trial of the charges “would greatly reduce
Defendants Liu, Chong and Wang’s time and expense in defending these charges”
and “reduce the burden on jurors, judges, and court personnel.” The prosecutor further represented that “the
crimes in each case will be proven with similar evidence and much of the
evidence is cross-admissible. . . .
The gang evidence is cross-admissible with respect to all the defendants
to prove the gang allegations.
Additionally, evidence of the substantive crimes is cross-admissible
with respect to Defendants Liu, Chong and Wang to prove intent, motive, and
common plan or scheme.”

Chong
opposed the consolidation motion, arguing he would suffer prejudice from
joinder. In particular, he argued that
codefendants Liu, Wang, and Kevin Choi were percipient witnesses that he
intended to call to support his claim of self-defense in relation to the Kohl’s
charges, but if the cases were joined, their attorneys would prevent them from
testifying to avoid exposing them to cross-examination on the charges against
them in the other two cases. He also
argued that he might want to testify as to one of the charges but not the
others. Chong further argued that the
jury might use evidence of one crime to infer Chong had a criminal disposition,
or it might “aggregate all of the evidence . . . and convict on both
[sic] charges in a joint trial;
whereas, at least arguably, in separate trials, there might not be convictions
on both [sic] charges. Joinder in this case will make it difficult
not to view the evidence cumulatively.”
He further argued that joinder would not result in any significant
public benefit.

The trial
court granted the motion to consolidate
without prejudice to future motions to sever, stating, “The cases are
classically joinable in the sense they are the same class of crime. They have elements of substantial importance
and commonality, i.e., gang membership, some very discrete gangs, and some gang
activity undertaken jointly by various individuals. And the manner of inflicting injury seems to
be fairly consistent.” The court found
Chong’s argument about calling some codefendants as witnesses in a separate
trial speculative and unconvincing. The
court also stated it had not “heard anything specific in terms of a particular
piece of type of evidence that would come in that is likely to inflame the jury
specifically against . . . any defendant.”

The
prosecutor subsequently elected to try the case two defendants at a time. Chong and Liu were tried together using
separate juries. Just before selection
of Chong’s jury commenced, Chong moved to sever trial of the attempted murder
charge from the remaining charges. He
argued that in the trials of the three codefendants that had already occurred,
Hung Duong and Evan Dou, who had faced only the attempted murder charge, had
been acquitted, while Wang, who was charged with both the attempted murder of
Daniel M. and the assault with a deadly weapon on Joshua, had been convicted. Chong argued that this demonstrated that
joining other charges with the attempted murder charge was prejudicial, and the
Kohl’s charges in his case put him in an even worse position. He further argued that “our case is also very
thin on count 1 [attempted murder]” and that the jury might get confused and
believe the same knife was used in all of the crimes.

The
prosecutor noted that the evidence as to each defendant was different and
argued that it was speculative to conclude that joinder of the attempted murder
and assault with a deadly weapon charges was the cause of Wang’s
conviction. He further argued that the
gang evidence was cross-admissible in the attempted murder and the assault on
Joshua, the same knife was used in the crimes at Kohl’s and the assault on Joshua,
and all three incidents involved assaultive behavior and the use of a weapon.

The court
denied Chong’s motion to sever. It noted
that Wang’s unconvincing testimony was “another significant factor” that
differentiated his case from that of his codefendants, all of the crimes except
the burglary were crimes against a person, Chong’s involvement in the attempted
murder was as an aider and abettor and thus “relatively minor,” and the court
did not believe that a consolidated trial of the various charges would result
in any prejudice to Chong.

Chong contends that the trial
court erred by granting the prosecution’s motion to consolidate and denying his
motion to sever. He concedes all of the
charges were of the same class of crimes, but argues his case was prejudiced by
the joinder because the attempted murder and the assault with a deadly weapon
on Joshua were weak cases, while the Kohl’s case was strong, and the jury must
have convicted him on the basis that the evidence of his conduct at Kohl’s showed
his bad character. He contends that the
consolidated trial violated due process.

Offenses
that are of the same class of crime or are connected in their commission may,
in the trial court’s discretion, be charged and tried together. (Pen. Code, § 954; undesignated references
are to the Penal Code.)
Cross-admissibility of evidence is not required. (§ 954.1.)
But severance may be required if joinder would be so prejudicial that it
would make the trial unfair. (>People v. Musselwhite (1998) 17
Cal.4th 1216, 1243–1244 (Musselwhite).) The first consideration is whether some of
the evidence would be cross-admissible in separate trials. (People
v. Soper (2009) 45 Cal.4th 759, 774 (Soper).) Cross-admissibility pertains to the admissibility of evidence
tending to prove a disputed fact of consequence, not the cross-admissibility of
another charged offense. (>People v. Geier (2007) 41 Cal.4th 555,
576.) Cross-admissibility is “normally
sufficient to dispel any suggestion of prejudice and to justify a trial court’s
refusal to sever properly joined charges.”
(Soper, at p. 775.) Full cross-admissibility is not
required. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1221 (>Alcala).)

If evidence would not be cross-admissible in
separate trials, we consider the following factors to determine “‘whether the
benefits of joinder were sufficiently substantial to outweigh the possible
“spill-over” effect of the “other-crimes” evidence on the jury in its
consideration of the evidence of defendant’s guilt of each set of
offenses’”: whether some of the charges
are particularly likely to inflame the jury against the defendant; whether the
prosecution has joined a weak case with a strong case or another weak case, “so
that the totality of the evidence may alter the outcome as to some or all of
the charges;” and whether one of the charges carries the death penalty or their
joinder turns the matter into a capital case.
(Soper, supra, 45 Cal.4th at p. 775.)
The party seeking severance must clearly show that a substantial danger
of undue prejudice outweighs the benefits of joinder, such as timely
disposition of criminal charges and conservation of judicial resources and
public funds. (People v. Bean
(1988) 46 Cal.3d 919, 939–940.)

Denial of a
motion to sever is reviewed for abuse of discretion in light of the record
before the trial court when it ruled on the motion, not in light of what
happened at trial. (Soper, supra, 45 Cal.4th
at p. 774.) Defendant must make a clear
showing of prejudice to establish an abuse of discretion. (Ibid.) “[I]n the context of properly joined offenses, ‘a party
seeking severance must make a stronger showing of potential prejudice
than would be necessary to exclude other-crimes evidence in a severed trial.’”
(Alcala, supra, 43
Cal.4th at p. 1222, fn. 11.) Due
to the preference for joinder, the trial court’s discretion is broader in
ruling on a motion for severance that in ruling on admissibility of
evidence. (Id. at p. 1221.)

The mere
presentation of evidence of a defendant’s commission of multiple offenses is a
“necessary concomitant of joinder” and is insufficient to render joinder unduly
prejudicial. (People v. >Hill (1995) 34 Cal.App.4th 727,
735.) “If it were, joinder could never
be permitted.” (Ibid.) “[T]he benefits of joinder
are not outweighed—and severance is not required—merely because properly joined
charges might make it more difficult for a defendant to avoid conviction
compared with his or her chances were the charges to be separately tried.” (Soper,
supra, 45 Cal.4th at p. 781.) The danger to be avoided in joinder of
offenses is that strong evidence of a lesser, but more inflammatory crime might
be used to bolster a weak case on another crime. (People
v. Mason (1991) 52 Cal.3d 909, 934.)
An extreme disparity in strength or inflammatory character is required
in order to demonstrate the potential for a prejudicial spillover. (Belton
v. Superior Court (1993) 19 Cal.App.4th 1279, 1284.)

Even if the
trial court’s ruling denying severance was correct, reversal is required if a
defendant shows that joinder actually resulted in gross unfairness amounting to
a denial of due process. (>Soper, supra, 45 Cal.4th at p. 783.)
“The issue is
not whether the evidence is sufficient to support the convictions on the joined
counts, independent of the evidence on other counts,” but name="SDU_588">whether the error itself substantially influenced the
outcome. (People v. Grant (2003) 113 Cal.App.4th 579, 587–588.) The defendant must establish a reasonable
probability that the joinder affected the jury’s verdicts. (Id.
at p. 588.)

a. Joinder of attempted
murder and aggravated assault on Joshua

The trial
court did not err by consolidating, then refusing to sever, the charges of
attempted murder of Daniel and assault with a deadly weapon on Joshua. Gang enhancements were alleged for each of
these offenses and the vast majority of the gang evidence for each was
identical. The gang evidence was thus
cross-admissible, and joinder of these charges promoted both case-specific and
systemic efficiency throughout the proceedings, in all levels of the court
system. (Soper,
supra, 45 Cal.4th at pp.
781–782.) With respect to Chong’s due
process claim, he has not shown a reasonable probability that joinder of these charges affected the jury’s verdicts. Neither case was weaker or more inflammatory
than the other. Indeed, neither case was
weak. Chong admitted some level of
participation in each offense in recorded statements that were played for the
jury, and Joshua identified him as one of the four men who entered the garage
and attacked him.

b. Joinder of Kohl’s
counts

The Kohl’s
charges were “connected
together in their commission” with the assault with a deadly weapon on
Joshua because Chong’s knife was used in all of these offenses except the
burglary. The prosecutor did not raise
this point in his motion to consolidate, but he did in his opposition to
Chong’s motion to sever when he argued that evidence of the use of the same
knife was cross-admissible. Although the
use of the same knife ultimately had little or no probative value, we review
the ruling at the time it was made, and the purported cross-admissibility
supports the trial court’s ruling.
Although Chong argued that the prosecution’s case with respect to the
attempted murder and the assault with a deadly weapon charges was weak, none of
the cases were weak and the Kohl’s charges were relatively minor, when compared
to the injuries sustained by Daniel and Joshua.
Thus, there was no danger that strong evidence of a lesser but
inflammatory crime might be used to bolster a weak case on another crime. Chong has not shown a reasonable probability that
joinder of the Kohl’s charges with the charges of attempted murder and assault
with a deadly weapon on Joshua affected the jury’s verdicts.

Chong
argues that joinder violated due process because the prosecutor argued that the
jury should “use evidence of one crime to convict [Chong] of another
crime.” For the convenience of one of
Chong’s two attorneys, the prosecutor gave his opening argument regarding the
attempted murder charge first, followed by Chong’s argument on that
charge. The prosecutor gave his opening
argument on the remaining charges the next day.
The argument Chong cites in support of this assertion was nothing more
than a prefatory listing of the charges against Chong at the outset of the
prosecutor’s argument regarding the attempted murder: “Let’s talk about the charges and allegations
in this case. I’ve listed seven counts
that Mr. Chong is charged with, but today we’re just going to focus on count 1,
which is the attempted murder of Daniel [M].
[¶] Mr. Chong is charged with the
following: count 2, assault of Joshua
[G.]; count 3, burglary at Kohl’s; count 4, assault with a deadly weapon at
Kohl’s against Patricia [sic]
Sanchez; count 5, Erik Pelaez; 6, robbery of Mr. Pelaez; and 7, robbery of Mr.
Sanchez. And that’s the entire list of
the charges against Mr. Chong.” The
prosecutor at no time in his arguments told the jury that it could use the
evidence of Chong’s commission of one crime to convict him of another crime.

>3. Limitations
on Chong’s cross-examination of Yu

Chong contends that the trial
court violated his confrontation and due process rights by precluding him from
cross-examining Detective Yu about “what he had learned about the case from his
interviews of the co-defendants and percipient witnesses to the stabbing of
Daniel [M]. Counsel wanted to impeach
Yu’s expert opinion that the stabbing was a gang related crime; that [Chong]
was a gang member; and that [Chong] was involved in the assault upon the EMF
gang members as a gang retaliation for the E-Cup spitting incident. Counsel also wanted to impeach Officer Yu by
showing that he was biased against the Asian suspects in this case as evidenced
by his harsh interrogation of one of the co-defendants, which included lying to
the co-defendant during the interview.”

Neither the
right to present a defense nor the right to confront witnesses permits a
defendant to introduce irrelevant or marginally relevant evidence. (People
v. Babbitt (1988) 45 Cal.3d 660, 684; Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [106 S.Ct. 1431].) The
confrontation clause simply guarantees an opportunity
for effective cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense wishes. (Delaware
v. Van Arsdall, at p. 679.) Judges retain wide latitude to impose
reasonable limits on cross-examination. (>People v. Quartermain (1997) 16
Cal.4th 600, 623.) Confrontation rights are not violated unless
a defendant shows that the prohibited cross-examination would have produced a
significantly different impression of the witness’s credibility. (>Id., at pp. 623–624.)

Outside the
presence of the jury, Chong requested that he be allowed to cross-examine Yu about
“outrageous statements” Yu made during his interrogation of codefendant Dou and
“how he goes about interrogating people, whether he lies to them, which we can
demonstrate that he did, whether he threatens them, which we can demonstrate
that he did . . . .”
Chong argued that the prosecution’s “entire case” against him on the
attempted murder charge was “based on the statements of interviews that were
conducted by the two defendants [sic].” Chong conceded that his own interview by Yu
was recorded, there was no dispute as to what was said or what took place, and
that Yu did not use any purportedly improper techniques on him. Chong nonetheless argued that Yu’s purported
misconduct with Dou was relevant to demonstrate Yu’s “attitude towards the
suspects” and allow “the jury to know the whole person.” The trial court denied
Chong’s request but invited him to renew it before completing his
cross-examination.

Chong
subsequently renewed his request, arguing, “I think we will be able to
establish a bias or prejudice on this officer in the fact that [Yu] has an
agenda. And I think that because he lies
to other people and because he threatens other people when he interviews them
or interrogates them I think that—and the way he dresses is also an
intimidation factor. I think all of
those things make it crucial to be able to fully cross-examine him on the issue
of how he conducts these interrogations and how he
interviews . . . .”
Chong argued that Yu lied to Dou and threatened him, “[a]nd because
those kind of—that kind of conduct was countenance[d] and perhaps encouraged by
the Sheriff’s Department, at least it was allowed, that goes to his
qualifications as an expert.”

The trial
court again denied Chong’s request, stating he was free to cross-examine Yu
about any techniques Yu used in interrogating Chong, but techniques Yu used in
interrogating other suspects were irrelevant.
The court also excluded such evidence pursuant to Evidence Code section
352 because it would “involve an explanation to this jury about what happened
in the interview with Mr. Dou, and I think that would be an undue consumption
of time, involve collateral issues.” The
court also denied Chong’s motion for mistrial.

Chong again
renewed his request, saying, “Deputy Yu said that based on interviews that he’s
had previously, that my client, number one, was a member of the Wah Ching
gang. And secondly, that the running
away occurred after the stabbing, and this is based on interviews. I would like to be able to go in to these
interviews.” Chong then clarified he was
referring to Dou’s interview only, and in particular, portions in which Dou was
threatened, “just to show the techniques that [Yu] used to get these statements
that he’s relying on to say that [Chong] is a member of the Wah Ching. And secondly, that he—when he ran away, it
was after the stabbing.” The court
declined to change its ruling on the techniques used in Dou’s interview, but
said, “If you can identify that Mr. Dou somehow implicated your client as
running away after the stabbing, that would be admissible and proper.” Counsel for Chong said he was unaware of any
“statements like that.” Chong did not
thereafter attempt to introduce any such statements.

In the
trial court, Chong asked to question Yu only about portions of Dou’s interview
in which Yu allegedly used improper interrogation techniques. He thus made no offer of proof regarding the
broader category addressed in his appellate claim, that is, matters Yu “had
learned about the case from his interviews of the co-defendants and percipient
witnesses to the” attempted murder.
Statements by witnesses and codefendants were likely inadmissible
hearsay, and Chong has not suggested any hearsay exception or nonhearsay
purpose for the unknown statements.

Nor has
Chong shown how statements by witnesses and codefendants would have impeached
“Yu’s expert opinion that the stabbing was a gang related crime; that [Chong]
was a gang member; and that [Chong] was involved in the assault upon the EMF
gang members as a gang retaliation for the E-Cup spitting incident.” Yu never
testified that his opinion that the stabbing was a gang related crime was based
upon his interviews of codefendants or witnesses. After opining, in response to a hypothetical
question, that the attack on Daniel’s group was committed for the benefit of
and in association with the Wah Ching gang, Yu testified that his opinion was
based upon his “overall training and experience, especially [his] experience as
a gang detective in the field of Asian gangs, specifically Wah Ching.” Yu testified that he based his opinion that
Chong was a gang member on Chong’s admission to Yu that he was an active member
of Wah Ching. Yu did not opine, as Chong
contends, that Chong “was involved in the assault upon the EMF gang members as
a gang retaliation for the E-Cup spitting incident.” Chong’s involvement was established by his
own admission in his recorded interview with Yu, and neither Yu nor anyone else
testified regarding Chong’s subjective motivation for participating in the
assault.

The record
does not support Chong’s erroneous representation to the trial court that Yu
testified that his opinion that Chong was a member of the Wah Ching gang and
his belief that Chong ran away after the stabbing were based upon Yu’s
interview with Dou. Yu never referred in
his testimony to any statements by Dou, much less cited such statements as the
basis for any of his testimony.

Chong has
also failed to demonstrate how Yu’s purportedly “harsh interrogation” of Dou
would have shown that “he was biased against the Asian suspects.” Officers commonly use a variety of techniques
to attempt to get suspects to confess or make admissions, and, on
cross-examination, Yu repeatedly explained that he made certain statements to
Chong or refrained from challenging him in an effort to create and maintain
good rapport so that Chong would continue to talk and provide information. The use of such tactics has no tendency to
establish bias against even the recipient of such treatment, much less other
suspects. Chong conceded that Yu did not
use any of the purportedly “harsh” techniques on him. The use of such techniques on Dou was
irrelevant in Chong’s case.

Because
cross-examination regarding Dou’s interrogation would have introduced
irrelevant matter that would not have produced a significantly different impression of Yu’s credibility, the
trial court’s rulings did not violate Chong’s confrontation right or render his
trial unfair.

>4. Sufficiency
of evidence to support Wang’s attempted murder conviction

Wang
challenges the sufficiency of evidence to support his attempted murder
conviction on the theory that there was insufficient evidence that Duong
intended to kill Daniel. Citing Daniel’s
testimony that his own turn caused the knife to cut across his abdomen, Wang
argues that the evidence supported only an inference that Duong intended to
injure Daniel, but the injury was far more serious due to “circumstances beyond
his control.”

Attempted murder requires the
specific intent to kill; implied malice is insufficient. (People
v. Lee (1987) 43 Cal.3d 666, 670.)
To support Wang’s conviction as an aider and abettor in this case, there
must have been substantial evidence that the direct perpetrator, Duong,
intended to kill Daniel. Because there
is rarely direct evidence of such intent, it must usually be shown from the
circumstances of the attempt. (>People v. Smith (2005) 37 Cal.4th 733, 741.)> Notwithstanding Daniel’s testimony
about turning, the jury could reasonably infer Duong’s intent to kill from his conduct. Daniel was not fighting with or threatening
Duong, and nothing suggests Daniel posed any threat to Wang and Le as they beat
him. Duong nevertheless ran up to Daniel
and plunged a knife with a six- to seven-inch blade so deeply into Daniel’s
stomach area that it pierced Daniel’s abdominal cavity. Duong thus chose to stab Daniel in the
vicinity of vital organs, such as the spleen, liver, stomach, and intestines,
damage to which could be life threatening.
Then, as Daniel turned, Duong held onto the handle of the knife with
sufficient strength to cause the blade to slice open Daniel’s abdomen, allowing
Daniel’s intestines to spill out of the incision. If Duong’s intent had been merely to injure
Daniel, he could have used his knife to cut or even stab Daniel’s arm or leg or
another area of the body where the wound would not be life-threatening. Based on Duong’s sudden, unnecessary attack on Daniel, the
depth to which Duong plunged his knife, the proximity to vital organs of the
stab wound, and Duong’s continuing grip upon the knife as Daniel turned, name="SR;3656">the jury could reasonably infer that Duong intended
to kill Daniel.

>5. Sufficiency
of evidence to support gang enhancement finding against Wang

An
essential element of a gang enhancement allegation under section 186.22,
subdivision (b), is proof that the purported gang has “as one of its primary
activities the commission of one or more of the criminal acts enumerated in
. . . subdivision (e)” of the statute. (§ 186.22, subd. (f).)

“The phrase
‘primary activities,’ as used in the gang statute, implies that the commission
of one or more of the statutorily enumerated crimes is one of the group’s
‘chief’ or ‘principal’ occupations.
[Citation.] That definition would
necessarily exclude the occasional commission of those crimes by the group’s
members.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) “Sufficient proof of the gang’s primary
activities might consist of evidence that the group’s members >consistently and repeatedly have
committed” one or more of the enumerated crimes. (Id.
at p. 324.) Evidence of both past
criminal acts and the circumstances of the charged offenses are relevant to
establish this, but such evidence generally will not establish a consistent and
repeated commission of any of the enumerated crimes. (Id.
at pp. 323–324.)

Wang contends there was no
evidence of the primary activities of the Wah Ching gang. We agree.
Neither Yu nor any other witness testified regarding the gang’s primary
activities. This appears to have been an
oversight, perhaps caused by having Yu testify separately before Dou’s jury,
then Wang’s jury.

The
Attorney General attempts to piece together the following bits of testimony by
Yu and label it as evidence of the Wah Ching gang’s primary activities. Yu testified that members of the gang “get
ahead” in the gang, or “earn their stripes by committing mostly violent crimes,
violent acts, and that’s usually committed