P. v. Phu

Filed 6/10/08 P. v. Phu CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Daniel J. Didier, Judge. Affirmed.

Dacia A. Burz, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda

Cartwright-Ladendorf and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.

Alex Phu appeals from a judgment after a jury convicted him of assault likely to produce great bodily injury and street terrorism. Phu argues the trial court erroneously instructed the jury on street terrorisms required elements. We disagree and affirm the judgment.

FACTS

Prosecution Evidence

Very early one morning, Katherine Dufresne and three friends went to a taqueria where she saw Phu. Dufresne had a crush on Phu in middle school, but she had not seen him in several years. After asking a friend to order for her, she went outside with her friend, Kieu Nguyen, to smoke a cigarette. Phu and some friends also went outside. Phu asked Dufresne, Do you know who I am? She said, Alex Phu, Tiny Boxer. Phu responded, You just want my dick. Dufresne said she did not. They began yelling obscenities at each other, and Phu walked towards her. Nguyen stepped in front of Dufresne, but Phu punched Dufresne on the face with a closed fist knocking her to the ground; she quickly got up and walked towards Phu. Another man pulled her legs out from underneath her, and she fell and hit her head. The man punched Dufresne on the head. Phu kicked her on the head. Two men came outside and tried to help, but Phu hit one of the men on the face with a baton. Phu and his friends ran and got into two sport utility vehicles. They yelled, T.V.B., and V-Boys and made hand signs representing a V. Dufresne reported the incident to the police.

Officer Edward Esqueda of the gang unit executed a search warrant at Phus residence. Officers found three photographs showing men throwing V hand signs, and another photograph showing seven men with Homies for Life written on it. They found a T-shirt that said, Choppa 22 and three Dallas Cowboys jerseys with the number 22. They also found a drawing that included the words, Tiny V-Boys, Asian Boys, and V.B. Officer Tim Walker of the gang unit arrested Phu. Phu told him he was no longer a member of the Asian Boys and V-Boys criminal street gangs, but he still hangs out with them because they are his friends.

Charges

An information charged Phu with assault likely to produce great bodily injury (Pen. Code,  245, subd. (a)(1))[1] (count 1), assault with a deadly weapon, a baton ( 245, subd. (a)(1)) (count 2), and street terrorism ( 186.22, subd. (a)) (count 3). The information alleged Phu committed counts 1 and 2 for the benefit of a criminal street gang ( 186.22, subd. (b)(1)).[2]

Trial

Additional Prosecution Evidence

Walker testified as an expert on criminal street gangs. After explaining his education, training, and experience, Walker testified concerning the culture and habits of Asian street gangs. He said gang members promote their gang by shouting the gangs name or throwing hand signs. He explained they are mobile and do not have defined boundaries. He stated Asian street gangs tend to have allies. He explained gang members use violence to enhance their reputation within the gang and the gang community. He stated the concept of respect is extremely important within a gang, and if a person is disrespected and does not retaliate, the gang member will be viewed as weak. He said many Asian gang members lead double lives, being a gang member and working or going to school and even their families will have no idea they are gang members. Walker said the taqueria was a hangout for Asian street gangs.

Walker testified he was familiar with the criminal street gang Viet Boys who are also referred to as T.V.B., Tiny Viet Boys, and V-Boys. He explained the Viet Boys are close allies with the Asian Boy Gang, and they are considered one gang. He stated the Viet Boys had 10 to 15 members at the time of the incident. He said their hand signs were V and B and the number 22 because the letter V is the 22nd letter of the alphabet. He testified one of the Viet Boys primary activities was committing assaults with deadly weapons, and testified about the required predicate offenses. Walker explained that when he went to Phus residence to speak with him before executing the search warrant, there were four other active Viet Boys gang members at the house. When he executed the search warrant, there were again active Viet Boys gang members. Walker opined that based on his prior contacts with Phu, Phu was an active participant in the Viet Boys criminal street gang at the time of the incidents. He said the fact Phu claimed he was no longer an active member did not change his opinion. Based on a hypothetical mirroring the facts of this case, Walker opined the crime was done to promote, and for the benefit of, a criminal street gang.

Defense Evidence

Phu offered the testimony of Tu Nguyen, Huong Duong, and Chinh Tran all of whom were with him the night of the incident. They all said Dufresne was the instigator and described the incident generally as follows: Dufresne had her feelings hurt because she used to like Phu and write to him when he was in juvenile hall, but he did not remember her. She said he thought he was better than her, and he agreed. She became angry and told him he had a small penis. Phu warned her to stop saying that. She threatened to get her homeboys to take care of him, and Phu said to go ahead. Nguyen held Phu, and when a female in Phus group walked outside, Dufresne confronted her. Phu hit Dufresne and she fell to the ground. Some men came out of the restaurant to help.

Nguyen said he did not hear anyone shout a gang name, denied being in a gang, and stated Phu was not in a gang at that time. He did not see anyone with a stick or see Phu hit anyone with an object that night. Duong testified he did not hear anyone shout a gang name, he was not a gang member, and he did not see anyone with a stick. Tran testified Phu was not a gang member at the time of the incident, he did not hear anyone shout gang names, and he did not see Phu with a stick.

Kathy Nguyen, Phus wife, testified Phu has been out of the gang for about five years and was not a gang member at the time of the incident. Glend Padua testified he and Phu joined the gang at approximately the same time and they left the gang the same time, approximately four years before the incident.

The jury convicted Phu of counts 1 and 3, and acquitted him of count 2. The jury found it not to be true Phu committed count 1 for the benefit of a criminal street gang. The trial court suspended Phus sentence and placed him on three years formal probation.

DISCUSSION

Relying primarily on People v. Salcido (2007) 149 Cal.App.4th 356 (Salcido), and People v. Ngoun (2001) 88 Cal.App.4th 432 (Ngoun), Phu argues the trial court erroneously instructed the jury with Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 1400 when it prejudicially mis-described and omitted a critical element for criminal liability under section 186.22,

subdivision (a) . . . .[3] We disagree.

Section 186.22, subdivision (a), states: Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.

The substantive offense defined in section 186.22[, subdivision] (a)[,] has three elements. Active participation in a criminal street gang, in the sense of participation that is more than nominal or passive, is the first element of the substantive offense defined in section 186.22[, subdivision] (a). The second element is knowledge that [the gangs] members engage in or have engaged in a pattern of criminal gang activity, and the third element is that the person willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang. [Citation.] (People v. Lamas (2007) 42 Cal.4th 516, 523, italics added.)

In August 2006, CALCRIM No. 1400, Active Participation In A Criminal Street Gang, defined the third element of the substantive offense of street terrorism as follows: The defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang.

In January 2007, the district attorney withdrew its proposed CALCRIM

No. 1400, which was the August 2006 version. The district attorney submitted a revised version of CALCRIM No. 1400 that included modified language, and the trial instructed the jury as follows:

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant actively participated in a criminal street gang, on or about February 17, 2006;

2. When the defendant participated in the gang, he knew that the members of the gang engage in or have engaged in a pattern of criminal gang activity;

AND

3. The defendant either directly and actively committed or aided and abetted other members of that gang in committing the crime of aggravated assault.

Active participation means involvement with a criminal street gang in a way that is more than passive or in name only.

The People do not have to prove that the defendant devoted all or a substantial part of his time or efforts to the gang, or that he was an actual member of the gang.

A criminal street gang is any ongoing organization, association, or group of three or more persons, whether formal or informal:

1. That has a common name or common identifying sign or symbol;

2. That has, as one or more of its primary activities, the commission of aggravated assault;

AND

3. Whose members, whether acting alone or together, engage in or have engaged in a pattern of criminal gang activity.

In order to qualify as a primary activity, the crime must be one of the groups chief or principal activities rather than an occasional act committed by one or more persons who happen to be members of the group.

A pattern of criminal gang activity, as used here, means:

1. The commission of, or attempted commission of, or conviction of [sections] 245[, subdivision] (a)(1)[,] and 459-46[, subdivision] (a);

2. At least one of those crimes were committed after September 26, 1988;

3. The most recent crime occurred within three years of one of the earlier [c]rimes;

AND

4. The crimes were committed on separate occasions or were personally committed by two or more persons.

The People need not prove that every perpetrator involved in the pattern of criminal gang activity, if any, was a member of the alleged criminal street gang at the time when such activity was taking place.

If you find the defendant guilty of the crime of aggravated assault in this case, you may consider that crime in deciding whether one of the groups primary activit[ies] was the commission of that crime and whether a pattern of criminal gang activity has been proved.

As the term is used here, a willful act is one done willingly or on purpose.

Felonious criminal conduct means committing an aggravated assault as defined in [CALCRIM Nos.] 875 [and] 875.1 (count[s] 1 & 2). To decide whether a member of the gang or the defendant committed aggravated assault, please refer to the separate instructions that I have given you on that crime. (Italics added.)

The Judicial Council revised CALCRIM No. 1400 in June 2007. CALCRIM No. 1400 revised the third element of the substantive offense of street terrorism as follows: (3.) The defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang either by: a. directly and actively committing a felony offense; OR b. aiding and abetting a felony offense. (Italics added.) As CALCRIM No. 1400 was not revised until June 2007, we presume the district attorney modified the submitted version of CALCRIM No. 1400 based on language taken from CALJIC No. 6.50.[4]

In Ngoun, supra, 88 Cal.App.4th at page 434, the court addressed the issue of whether section 186.22, subdivision (a), applied to a direct perpetrator of a crime or only an aider and abettor. The court stated: Given the objective and intent of [section 186.22,] subdivision (a), we find good reasons not to construe section 186.22,

subdivision (a), in the restricted manner advocated by appellant and instead to conclude that this subdivision applies to the perpetrator of felonious gang-related criminal conduct as well as to the aider and abettor. . . . [Citations.] Under the language of [section 186.22,] subdivision (a), liability attaches to a gang member who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang. [Citation.] In common usage, promote means to contribute to the progress or growth of; further means to help the progress of; and assist means to give aid or support. [Citation.] The literal meanings of these critical words squares with the expressed purposes of the lawmakers. An active gang member who directly perpetrates a

gang-related offense contributes to the accomplishment of the offense no less than does an active gang member who aids and abets or who is otherwise connected to such conduct. (Ngoun, supra, 88 Cal.App.4th at p. 434, italics added.)

In Salcido, supra, 149 Cal.App.4th at page 366, the court addressed the issue of whether the trial court erroneously instructed the jury with a version of CALCRIM No. 1400 on several grounds, none of which are relevant to the issue Phu raises. The court relied on Ngoun and explained the August 2006 version of CALCRIM No. 1400 was problematic because it define[d] the elements of willfully assist[ing], further[ing], or promot[ing] a crime only in terms of defendant acting as an aider and abettor. The court stated, [A]s we concluded in Ngoun, section 186.22, subdivision (a), cannot be read so narrowly and includes perpetrators of felonious gang-related criminal conduct. [Citation.] (Id. at p. 370, italics added.)

Phu complains the revised version of CALCRIM No. 1400 did not include the language the jury must find Phu willfully promote, further, or assist in any felonious criminal conduct by members of that gang. He alleges this omission prevented the jury from properly considering whether the aggravated assault was gang related as required by Ngoun and Salcido, and allowed the jury to convict him of street terrorism by finding him guilty of an aggravated assault not linked to . . . criminal conduct in furtherance of a street gang. We conclude that although the modified version of CALCRIM No. 1400 did not include the language the jury must find Phu willfully assisted, furthered, or promoted[,] the instruction adequately instructed the jury on the required elements of the substantive offense of street terrorism, including whether the aggravated assault was gang related.

CALCRIM No. 1400 as modified instructed the jury it must find the following: Phu was an active participant in the Asian Boys and Viet Boys criminal street gangs at the time of the incident; when Phu participated in the Asian Boys and Viet Boys criminal street gangs, he knew Asian Boys and Viet Boys criminal street gang members engage in or have engaged in a pattern of criminal gang activity; and Phu either committed or aided and abetted other Asian Boys and Viet Boys criminal street gang members in committing the felony of aggravated assault.

This instruction required the jury to find Phu committed a gang-related aggravated assault because it had to find he was an active participant in a criminal street gang who knew his fellow gang members engage in or engaged in statutorily defined crimes. The instruction also required the jury to find either he alone or he and other members of the criminal street gang committed a felonyaggravated assaultthereby satisfying the willfully assisted, furthered, or promoted requirement because any active participant in a gang who knows fellow gang members engage in a pattern of criminal activity promotes his or her gang. (See People v. Castaneda (2000) 23 Cal.4th 743, 752 [Legislature has made clear [t]hrough section 186.22[], [subdivision] (a)s plainly worded requirementscriminal knowledge, willful promotion of a felony, and active participation in a criminal street gangwhat conduct is prohibited].) As instructed, the jury did not convict Phu merely because he committed an aggravated assault and he associated with a disfavored organization. Instead, the jury convicted him because he committed a gang-related aggravated assault.

Acknowledging none of the cases that address section 186.22,

subdivision (a)s elements provide a definition for gang[-]related crimes, Phu analogizes to section 186.30 and the cases interpreting it in search of a definition. Section 186.30 states: (a) Any person described in subdivision (b) shall register with the chief of police of the city in which he or she resides, or the sheriff of the county if he or she resides in an unincorporated area, within 10 days of release from custody or within 10 days of his or her arrival in any city, county, or city and county to reside there, whichever occurs first. [] (b) Subdivision (a) shall apply to any person convicted in a criminal court or who has had a petition sustained in a juvenile court in this state for any of the following offenses: [] (1) Subdivision (a) of [s]ection 186.22. [] (2) Any crime where the enhancement specified in subdivision (b) of [s]ection 186.22 is found to be true. [] (3) Any crime that the court finds is gang related at the time of sentencing or disposition. (Italics added.)

First, the reason section 186.22, subdivision (a), does not include a definition for gang related is because the statute does not include that language.

Second, the courts interpreting section 186.30s gang[-]related requirement have looked to the street terrorism enhancement for guidance.

In People v. Martinez (2004) 116 Cal.App.4th 753, 761-762 (Martinez), footnote omitted, the court opined: We . . . conclude that a crime is gang related in this context when it was committed, in the words of subdivision (b)(1) of section 186.22, for the benefit of, at the direction of, or in association with a street gang. [Citations.]

In In re Jorge G. (2004) 117 Cal.App.4th 931, 941 (Jorge G.), the court stated: For the guidance of the juvenile court on remand, we note that the criteria for imposing a sentence enhancement under section 186.22, subdivision (b)(1), include a reference to crimes committed for the benefit of, at the direction of, or in association with any criminal street gang . . . . Gang-related crimes within the meaning of section 186.30, subdivision (b)(3), surely include, but are not limited to, all crimes committed for the benefit of, at the direction of, or in association with a criminal street gang.

Both Martinez and Jorge G. interpreted section 186.30s phrase gang related to include crimes committed for the benefit of, at the direction of, or in association with a criminal street gang[.] This language is taken from the street terrorism enhancement codified in section 186.22, subdivision (b)(1). Section 186.22, subdivision (a), does not include the requirement the felony be committed for the benefit of, at the direction of, or in association with any criminal street gang as section 186.22, subdivision (b)(1), does. (Ngoun, supra, 88 Cal.App.4th at pp. 435-436 [section 186.22, subdivision (a), is a substantive offense whose gravamen is the participation in the gang itself].)

Finally, to the extent Phu claims that because the jury found not true the street terrorism enhancement allegation as to count 1, then CALCRIM No. 1400 must have been deficient, we are not persuaded. There are any number of reasons why the jury found the enhancement allegation not true, none of them having anything to do with CALCRIM No. 1400. Therefore, CALCRIM No. 1400 was not erroneous.

DISPOSITION

The judgment is affirmed.

OLEARY, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

MOORE, J.

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[1] All further statutory references are to the Penal Code, unless otherwise indicated.

[2] The street terrorism enhancement, section 186.22, subdivision (b)(1), authorizes a trial court to impose an additional term of punishment depending on the crime for any 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 . . . .

[3] The Attorney General contends Phu waived appellate review of this claim because he did not object to CALCRIM No. 1400 at trial. Phu did not respond to this contention in his reply brief. Despite Phus silence, we conclude appellate review of this issue is not waived because it affects his substantial rights. ( 1259; People v. Van Winkle (1999) 75 Cal.App.4th 133, 139-140.)

[4] CALJIC No. 6.50, in relevant part states: In order to prove this crime, each of the following elements must be proved: [] 1. A person actively participated in a criminal street gang; [] 2. The members of that gang engaged in or have engaged in a pattern of criminal gang activity; [] 3. That person knew that the gang members engaged in or have engaged in a pattern of criminal gang activity; and [] 4. That person either directly and actively committed or aided and abetted [another] [other] member[s] of that gang in committing the crime[s] of _____. (Italics added.)

To the extent the district attorneys revised CALCRIM No. 1400 is an amalgamation of CALCRIM and CALJIC instructions, we caution the trial court to not use instructions that are a combination of CALCRIM and CALJIC instructions. The CALJIC and CALCRIM instructions should never be used together. While the legal principles are obviously the same, the organization of concepts is approached differently. Trying to mix the two sets of instructions into a unified whole cannot be done and may result in omissions or confusion that could severely compromise clarity and accuracy. (Jud. Council of Cal. Crim. Jury Instns. (2007-2008) Guide for Using Jud. Council of Cal. Crim. Jury Instns. (CALCRIM), p. xxvi.)