P. v. Chun

Filed 12/2/09 P. v. Chun CA3

Opinion following remand from Supreme Court

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

This case returns to this court on remand after the Supreme Courts decision in People v. Chun (2009) 45 Cal.4th 1172 (Chun). In our prior opinion, filed September 14, 2007, we reversed defendants murder conviction. We found two errors. The trial court erred in admitting into evidence defendants admission that he fired a gun. Although we found this error harmless beyond a reasonable doubt as a pure evidentiary matter, it contributed to the second error of instructing the jury on second degree felony murder. We found the second error required reversal.

In Chun, supra, 45 Cal.4th 1172, the Supreme Court addressed only the second error. It held it was error to instruct on second degree murder where the underlying felony is shooting at an occupied vehicle in violation of Penal Code section 246. The court found, however, that this error was harmless beyond a reasonable doubt when considered individually. Because there was a second error in admitting defendants admission he fired a gun, the Supreme Court remanded for a determination whether the two errors, in combination, were prejudicial.

Having considered the cumulative effect of the two errors, we conclude the errors together were not prejudicial.

FACTS

Judy Onesavanh and Sophal Ouch were planning a party for their sons birthday. About 9:00 p.m. on September 13, 2003, they and a friend, Bounthavy Onethavong, were driving to the store in a blue Mitsubishi owned by Onesavanhs father. Onesavanh has a brother named George who also drives the car. The police consider George a higher up in the Asian Boys street gang (ABZ); he is known as Crazy George. ABZ is affiliated with the Crips.

Ouch was driving that night. Onesavanh was in the front passenger seat and Onethavong was behind Ouch. They stopped in the left turn lane on Lan Arc, at the intersection with Hammer Lane. A blue Honda with tinted windows pulled up beside them. When the light changed, there was gunfire from the Honda, at least six shots.

All three occupants of the Mitsubishi were hit. Onethavong was killed; he had two bullet wounds to the head. Onesavanh was hit in the back. She spent a month and a half in the hospital, could not walk for six months, and lost a kidney. The bullet that struck her could not be removed without paralyzing her. Ouch was shot in the cheek and his jaw fractured. He spent a week in the hospital and lost his sinus system.

Ouch and Onesavanh were able to identify the Honda and its driver as T-Bird. The police knew T-Bird to be Rathana Chan, a member of the Tiny Rascals Gangsters (TRG). Chan was never found. TRG is a Southeast Asian street gang affiliated with the Bloods. There were 40 documented members of TRG in Stockton. TRG associates with the number 7126 and the color gray, as well as red. TRGs crimes include auto theft, possession of drugs for sale, shootings and homicide. All of the Crip gangs in Stockton, including ABZ, do not get along with TRG. The Original Blood gang (OB) has a close affiliation with TRG.

The forensic evidence showed that three guns were used in the shooting, a .22, a .38, and a .44, and at least six bullets were fired. Both the .38 and the .44 struck Onethavong; both shots were lethal. The only gun recovered was the .44. It was found in a search of the residence of Sokha and Mao Bun, two brothers believed to be gang related. Sokha Bun was a documented member of OB and had prior contacts with members of TRG. The police found two guns, a .44 and a nine-millimeter, in the search; both guns had been reported stolen.

Two months after this shooting, the police were investigating another suspected gang shooting that occurred on Bedlow Drive. They were watching a van believed to have been involved in the shooting. When three young Asian males got in the van, the police effected a traffic stop. Mao Hin was driving and Rattanak Kak and defendant were passengers. Defendant was arrested, read his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]), and taken to the police station for questioning. He was interviewed twice concerning the Bedlow shooting and denied any involvement. Subsequently, Detectives Youn Seraypheap and J. J. Reyes interviewed him about the September shooting on Lan Arc. Defendant admitted he was in the back seat of the Honda with Rattanak Kak; T-Bird was driving and Mao Hin was the front passenger. Defendant admitted he fired a .38 firearm.

Defendant, Hin and Kak were charged in a 31-count information. The information included charges against Hin and Kak for another murder. By the time of trial, the case of the September shooting on Lan Arc proceeded only against defendant. Defendant, who was 16 years old at the time of the shooting, was tried as an adult; he was charged with murder, with drive-by and gang special circumstances, and two counts of attempted murder, discharging a firearm from a vehicle, and shooting into an occupied vehicle, all with gang and firearm use allegations, and street terrorism.

In a search of defendants bedroom, officers found pictures in a shoe box of defendant with Hin and Bun, and gang writing and symbolism indicative of TRG. They also found CDs with gang markings, including CK, which stood for Crip Killer, and the word Snub. While in detention, defendant had carved TRG on his Styrofoam cafeteria tray and his door. Defendant threatened a unit supervisor, telling him: Fuck you. I dont give a fuck. One to the dome. This is how we do it. Defendant made a shooting motion with his finger. Another time, defendant told the supervisor: You dont know who you are fucking with, nigga, this is TRG. Bang, bang, mother fucker. Thats how we do it. Yeah, nigger. Wait till I get out. Bang to the dome. Fuck that. Youll see when I get out.

At trial, a detective in the gang suppression unit testified TRG met the statutory definition of a street gang. In her opinion, defendant was a member of TRG and the shooting was for the benefit of a gang.

The defense presented the testimony of S. G., a witness to the shooting, and the officer who interviewed her. S. G. was behind the Mitsubishi at the stop light. S. G. told the officer she saw six gunshots from the Honda; she saw a muzzle flash from the front passenger seat. She saw three people in the Honda.

Two of defendants cousins testified he went to Oakland to visit relatives around the time of the shooting, but they could not specify the date of the trip.

Defendant testified in his defense. He had been born in Stockton and was called Snub in high school; he was short before he went to juvenile hall and drank milk.[1] He had had the opportunity to become TRG, but did not take it. He explained his CD collection by indicating he liked TRG music. He met T-Bird and Rattanak Kak through Mao Hin. He heard rumors about the September shooting, including that a .38 was used. When he was interviewed by the police, he was very tired and scared when they told him he would be charged for the Bedlow shooting. He tried to cooperate with the detective by naming the people in the pictures. Defendant asserted he was not in T-Birds car; he did not shoot or possess weapons; he did not encourage others to shoot.

The prosecution asked for a first degree murder conviction. The jury was also instructed on second degree felony murder based on shooting at an occupied motor vehicle either directly or as an aider and abettor.

The defense argued defendant was not present at the shooting and therefore not guilty. He admitted being in the Honda and firing a gun because he had been without sleep for 34 hours, was easily confused, and was promised leniency if he cooperated. The defense asserted the tape of the interview showed that defendant could not tell what happened on his own; he did not know.

During deliberations, the jury asked about the definition of corpus delecti and whether it could convict defendant if the only evidence against him was his admission. The court answered yes, if the elements of the crime were independently proven. The jury also requested a rereading of the testimony of S. G. and the officer who interviewed her.

The jury found defendant guilty of second degree murder; it found the personal use allegation not true, but that a principal intentionally used a firearm and the shooting was committed for the benefit of a criminal street gang. The jury acquitted defendant of both counts of attempted murder, shooting from a motor vehicle, and shooting at an occupied motor vehicle. The jury convicted defendant of being an active participant in a criminal street gang.

DISCUSSION

I.

Background

Our Prior Opinion

In our prior opinion, we concluded there was no coercion involved in obtaining defendants statement that he was in the Honda at the time of the shooting. There were no false promises of leniency. We reached a different conclusion as to defendants statement he fired a .38. We found Detective Seraypheap offered to advocate for defendant before the judge and in effect promised defendant more lenient treatment in a murder case if he cooperated and admitted he had the smaller gun. It was error to admit defendants statement that he fired a .38.

We found the error in admitting defendants admission that he fired a gun was harmless beyond a reasonable doubt when considered individually. There was ample, indeed overwhelming, evidence that defendant was a TRG member and that TRG was a violent street gang. Considerable indicia of gang membership was found in defendants bedroom and he admitted as much by carving TRG on his cafeteria tray and door while in custody and threatening a supervisor, claiming this is TRG. That he was guilty of murder was almost as indisputable. Defendant was one of three or four persons in the car and three guns were used to fire several shots. The driver was identified as Rathana Chan or T-Bird, a known TRG member. The shooting was gang-related and defendant was a member of the gang. He professed solidarity not only with the gang, but with its violent methods: One to the dome. This is how we do it. The admission of defendants second statement that he fired a gun was harmless beyond a reasonable doubt as a pure evidentiary matter.

Our prior holdings that the trial court erred in admitting defendants statement he fired a gun and that the admission of that statement was harmless were not before the Supreme Court for review. (Chun, supra, 45 Cal.4th at p. 1205.)

Supreme Court Opinion

The Supreme Court did review our prior holdings that it was error to instruct on second degree felony murder and that error was prejudicial. The high court agreed with the first holding, but not the second.

First, the Supreme Court addressed the claim that second degree felony murder violated separation of powers as a judicially created doctrine with no statutory basis. The court held that the abandoned and malignant heart language of Penal Code section 188 contains within it the common law second degree felony murder rule. (Chun, supra, 45 Cal.4th at p. 1187.) Second degree felony murder is based on statute and stands on firm constitutional ground. (Id. at p. 1188.)

The court then considered the effect of the merger rule of People v. Ireland (1969)70 Cal.2d 522. After reviewing the courts jurisprudence in this area, the court held the state of the law regarding the Ireland merger doctrine was problematic, and found it necessary to reconsider our merger doctrine jurisprudence. (Chun, supra, 45 Cal.4th at p. 1198.) Disapproving prior decisions, the court set forth a different test of merger. When the underlying felony is assaultive in nature, such as a violation of section 246 or 246.3, we now conclude that the felony merges with the homicide and cannot be the basis of a felony-murder instruction. (Id. at p. 1200.) Although the court declined to determine exactly what felonies are assaultive in nature, it held that shooting at an occupied vehicle under section 246 is assaultive in nature and hence cannot serve as the underlying felony for purposes of the felony-murder rule. (Ibid., fn. omitted.)

The Supreme Court then turned to the question of prejudice. The court first noted that although the jury was not given specific instructions on implied malice second degree murder, CALJIC Nos. 8.30 and 8.31, the other instructions were sufficient to base a second degree murder conviction on either malice or felony murder. (Chun, supra, 45 Cal.4th at pp. 1202-1203.)

In our prior opinion, we relied on People v. Guiton (1993) 4 Cal.4th 1116, 1129, for the proposition that where the jury was instructed on an erroneous legal theory and the record does not reveal the verdict was based on a valid theory, reversal was required. Thus, we found the error reversible. The Chun court held that Guiton was not dispositive. (Chun, supra, 45 Cal.4th at p. 1203.)

Instead, the Chun court relied on a test set forth by Justice Scalia in a concurring opinion in California v. Roy (1996) 519 U.S. 2 [136 L.E.2d 266] (Roy)). In Roy, the error was permitting a defendant to be convicted of a crime as an aider and abettor solely due to his knowledge of the crime, without requiring a finding he shared the perpetrators intent. The Chun court found this error similar to that in the case at hand where the defendant could be convicted of felony murder without requiring a finding of a valid theory of malice. (Chun, supra, 45 Cal.4th at p. 1204.) In Roy, Justice Scalia stated the test for prejudice thus: The error in the present case can be harmless only if the jury verdict on other points effectively embraces this one or if it is impossible, upon the evidence, to have found what the verdict did find without finding this point as well. (Roy, supra, at p. 7 [136 L.Ed.2d at p. 272, original italics.) The Chun court found this test worked well for an improper instruction on second degree felony murder. If other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary for conscious-disregard-for-life malice, the erroneous felony-murder instruction was harmless. (Chun, supra, at p. 1205.)

Applying this test, the court found any juror who relied on felony murder necessarily found that defendant willfully shot at an occupied vehicle. (Chun, supra, 45 Cal.4th at p. 1205.) That finding was sufficient for malice. No juror could have found that defendant participated in this shooting, either as a shooter or as an aider and abettor, without also finding that defendant committed an act that is dangerous to life and did so knowing of the danger and with conscious disregard for life--which is a valid theory of malice. In other words, on this evidence, no juror could find felony murder without also finding conscious-disregard-for-life malice. The error in instructing the jury on felony murder was, by itself, harmless beyond a reasonable doubt. (Ibid.)

The Supreme Court did not consider whether the two errors--admitting defendants statement that he fired a gun and instructing on second degree felony murder--were, in combination, prejudicial. (Chun, supra, 45 Cal.4th at p. 1205.) Instead, it remanded the matter to this court to make that determination. (Id. at pp. 1205-1206.) We conclude there was no cumulative error.

II.

There Was No Cumulative Error

Under the cumulative error doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial. [Citations.] (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32 (dis. opn. of Mosk, J.).) The litmus test for cumulative error is whether defendant received due process and a fair trial. (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) Because the errors were of constitutional magnitude, we assess the cumulative effect under Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705] and the People have the burden to prove beyond a reasonable doubt that the error did not contribute to the verdict. (People v. Woods (2006) 146 Cal.App.4th 106, 117.)

In his opening supplemental brief, defendant contends the evidence permitted the jury to find that he fired the .22, which did not fire a fatal shot. He contends his laconic statement to the police about the shooting showed he did not care whether he killed anyone. Defendant asserts his description of the offense, coupled with harmlessly firing the .22, was consistent with gross recklessness and insufficient for implied malice. Therefore, he concludes, the jury could have convicted him under the improper felony-murder theory without finding he acted with malice.

This argument fails because the Supreme Court has already rejected it. The court found, No juror could have found that defendant participated in this shooting, either as a shooter or as an aider and abettor, without also finding that defendant committed an act that is dangerous to life and did so knowing of the danger and with conscious disregard for life--which is a valid theory of malice. (Chun, supra, 45 Cal.4th at p. 1205.)

In his reply supplemental brief, defendant argues the Supreme Court made this statement only in the context of instructional error, not evidentiary error, and thus did not consider whether the admissible evidence was sufficient for implied malice murder. We disagree this statement was made without regard to the state of evidence. Immediately before this statement, the Supreme Court summarized the pertinent evidence. The Mitsubishi contained three people; they were hit by multiple gunshots fired at close range by three different firearms. (Chun, supra, 45 Cal.4th at p. 1205.) The Supreme Courts decision in Chun finds shooting at an occupied car at close range is implied malice and forecloses defendants argument.

Defendants reply brief raises a second argument. He argues that the jury could have found he did not fire a gun. According to defendant, there were four people in the Honda and only three guns. Defendant posits the jury could have used his statement that he fired the .38, not as proof he fired a gun, but as evidence that he aided and abetted the shooting. After all, defendant reasons, the jury found the personal use allegation not true and acquitted defendant of shooting from or at a motor vehicle. Thus, admission of defendants statement he fired a gun was prejudicial.

This argument is connected with defendants contention that we must reconsider our earlier decision that admitting defendants statement he fired a gun was not prejudicial. He contends that without his statement he fired a gun there is no evidence he aided and abetted the killing. We disagree and, as explained below, decline to reconsider our earlier conclusion on this point. Even without defendants admission that he fired a gun, the jury heard strong evidence that defendant participated, at least as an aider and abettor, in a gang shooting that resulted in murder. There was ample evidence he participated in the killing as a member of the TRG criminal street gang and that he acted with implied malice.

The errors in admission of defendants statement he fired a gun and the instructions on a legally erroneous theory of second degree murder did not change the overwhelming nature of the prosecutions case. This is not a case where, absent these errors, honest, fair-minded jurors might very well have brought in not-guilty verdicts. (Chapman v. California, supra, 386 U.S. 18, 26 [17 L.Ed.2d 705, 711].) We find the cumulative effect of the errors to be harmless beyond a reasonable doubt. (Id. at p. 23 [17 L.Ed.2d at p. 710].)

III.

Due Process Does Not Require

Reconsideration of Our Prior Decision

Defendant asks this court to reconsider its earlier decision that the admission of defendants statement he fired a .38 was harmless error. Defendant contends fundamental fairness requires reconsideration because he never had the opportunity to argue the admission of his statement he fired a gun was prejudicial. We find this issue is not properly before us and defendant had an opportunity to argue it before.

In an appeal following a limited remand, the scope of the issues before the court is determined by the remand order. [Citations.] (People v. Murphy (2001) 88 Cal.App.4th 392, 396.) The law of the case doctrine states that when, in deciding an appeal, an appellate court states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal . . . , and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular. [Citations.] (Kowis v. Howard (1992) 3 Cal.4th 888, 892-893.) The doctrine applies to sufficiency of the evidence in a criminal case. (People v. Barragan (2004) 32 Cal.4th 236, 246.)

Defendant recognizes these hurdles to his argument but contends reconsideration is required because he never had the opportunity to argue admission of only part of defendants statement was prejudicial. In briefing of the earlier appeal, defendant treated his statements to the police together, arguing admission of all was prejudicial error. From the outset of oral argument, however, it was clear this court found a problem only with the admission of the second portion of the statement in which defendant admitted having a gun.[2] Justice Morrison asked defense counsel to address first the voluntary nature of the second statement. Acting Presiding Justice Blease asked what difference it made if the jury found defendant did not shoot a gun. Justice Nicholson explored the effect of excluding the statement about the gun and asked what was the effect if that error was harmless beyond a reasonable doubt. Justice Morrison asked counsel to assume the statement about the gun should have been excluded and if the error was harmless under Chapman.

As this summary of oral argument shows, counsel was well aware this court found a problem with admission of only the statement about the gun, questioning only whether it was prejudicial. Counsel thus had the opportunity to argue that error alone required reversal or request the opportunity for supplemental briefing on the issue. Because defendant had the opportunity to address the issue, due process does not require a second chance to address the issue.

IV.

The Street Terrorism Enhancement Was Unauthorized

The Attorney General has properly conceded that the street terrorism enhancement under Penal Code section 186.22, subdivision (b)(1)(C) is an unauthorized sentence because defendant received a life term for the murder. (People v. Lopez (2005) 34 Cal.4th 1002, 1007, 1010-1011.) Accordingly, the trial court erred in applying the 10-year gang enhancement to defendants second degree murder conviction.

DISPOSITION

The judgment is modified to delete the 10-year gang enhancement imposed under Penal Code section 186.22, subdivision (b)(1)(C); in all other respects the judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

BLEASE , Acting P. J.

NICHOLSON , J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] The prosecutor argued defendant was called Snub because his weapon of choice was a snub-nosed .38.

[2] We grant defendants request to take judicial notice of our recording of oral argument. (Evid. Code,  452, subd. (d).)