People v. Lieu, B201074 (Cal. App. 5/9/2008)

• Decision Date: 09 May 2008
• Docket Number: B201074
• Court: California Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JOHNY XI LIEU, Defendant and Appellant.

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THE PEOPLE, Plaintiff and Respondent, v. JOHNY XI LIEU, Defendant and Appellant.

B201074

Court of Appeals of California, Second Appellate District, Division Five

May 9, 2008

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Los Angeles County, No. GA066065, Jacqueline H. Nguyen, Judge. Affirmed with modifications.

Diane Berley, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

TURNER, P. J.

I. INTRODUCTION

Defendant, Johny Xi Lieu, appeals from his convictions for: kidnapping to commit robbery (Pen. Code,¹ § 209, subd. (b)(1)); first degree residential robbery (§ 211); four counts of firearm assault (§ 245, subd. (a)(2)); criminal threats (§ 422); and, three counts of felony false imprisonment. (§ 236.) The jurors also found that defendant personally used a firearm in the commission of the kidnapping and robbery (§ 12022.53, subd. (b)) and in the remainder of the offenses. (§ 12022.5.) Defendant argues that there was insufficient evidence to support any of his convictions and his kidnapping for robbery purposes conviction. The Attorney General argues that the trial court should have imposed a court security fee as to each count and the record should be corrected to more accurately reflect the sentence imposed. We affirm with modifications.

II. FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On September 17, 2005, Frank Chung lived with his family on Glendon Way in San Gabriel. Mr. Chung's business partner was Guozhu Wu. Mr. Wu lived with his family. Mr. Wu's house was at the rear of Mr. Chung's property. At approximately midnight, Mr. Chung left his home to pick up his daughter. As he approached his car, Mr. Chung heard some noise. Mr. Chung immediately saw three or four individuals jump over a low fence and run towards him. Each wore a dark hooded sweater and something covering their faces. Mr. Chung ran toward Mr. Wu's residence. One individual continued to chase Mr. Chung. The man wore a dark hooded sweater and a blue and white patterned handkerchief as a triangle was tied over his face. The man wore Converse All Star shoes. Mr. Chung yelled: "`Mr. Wu, Mr. Wu, open the door. Open the door.'" The man caught Mr. Chung. The man held a gun to Mr. Chung's head. Mr. Chung was very scared. Mr. Chung crouched down and placed his hands behind his head. The man spoke to Mr. Chung in English. Mr. Chung was ordered to have Mr. Wu open the door. In Cantonese, Mr. Chung asked Mr. Wu to open the door. When the door did not open immediately, the man told Mr. Chung, "`I am going to count to three and if you don't open the door, I am going to shoot.'" Mr. Chung repeated the demand to Mr. Wu in Cantonese.

When Mr. Wu opened the door, Mr. Chung walked inside with the man. The man was pushing Mr. Chung. The assailant ordered Mr. Wu and his wife, He Hui Chang and children, to crouch down and look at the floor. Mr. Chung was also ordered to crouch down. The assailant said, "`Where's the money?'" Mr. Chung translated what the man said for the Wu's. Ms. Wu said, "`No, we don't have any money.'" The assailant repeated what Mr. Chung had said in Cantonese, but did not appear to be very fluent. Mr. Wu took seven $100 bills and smaller denominations and some business cards from his pocket and placed them on the coffee table. The assailant asked, "`Is there any more money?'" Mr. Chung translated the man's statement in Cantonese. The assailant then repeated the Cantonese phrase. The assailant then reached down and took the money. The assailant left the house. Mr. Chung immediately closed the door and called the police.

At about the same time, Mr. Chung's wife, Candy, heard someone outside her home shout loudly. Ms. Chung opened the front door and saw two individuals running past her front yard. Each wore a hood over their head. Ms. Chung closed the door and called the police. While Ms. Chung was on the phone, someone hit her front door with what sounded like their shoulder and kicked the door.

San Gabriel Police Officer James Drabos arrived at 318 West Glendon Way at 12:12 a.m. on September 18, 2005. Officer Drabos spoke to Mr. and Ms. Chung and the Wu family in the driveway. Mr. Chung explained in English what had occurred. Mr. Wu spoke to Officer Drabos through Mr. Chung's translation. Mr. Wu said he had approximately $750 folded in his pants pocket, including seven $100 bills, two $20 bills, a $5 bill, and an unknown number of $1 bills. Mr. Wu said he also had some business cards and a receipt in his pocket. Mr. Chung described the assailant as a man who was approximately 5 feet 10 inches tall, medium build, who wore a black hooded sweatshirt, and dark pants and shoes. The suspect wore a blue and white bandana over his nose and mouth. Both Mr. Wu's and Mr. Chung's height estimates were based upon the fact that they believed the man was slightly taller than Officer Drabos. Both Mr. Chung and Mr. Wu indicated that assailant had used a revolver in the robbery. Officer Drabos radioed to assisting police units with a description of the suspect and the dark colored revolver.

Officer Allen Sam was assigned to the perimeter surrounding the scene of the incident at approximately 12:12 a.m. Officer Drabos broadcast a description of the robber at approximately 12:25 a.m. Officer Sam remained in his patrol car at the perimeter for approximately 5 or 10 minutes before driving around the area. Soon thereafter, Officer Sam saw defendant dressed in dark blue hooded sweatshirt and dark pants. Defendant was hiding behind a block wall. Defendant was breathing heavily and perspiring. Officer Sam handcuffed defendant and conducted a patdown search for weapons. Officer Sam located a large sum of money folded in half in defendant's front pouch pocket. Defendant said that he was coming from a party at a friend's house.

Thereafter, Officer Drabos admonished Mr. Chung and Mr. Wu and drove them to the location where defendant was detained. Mr. Wu and Mr. Chung indicated that defendant's height, weight, and clothing matched their assailant. However, they were unable to make a positive identification.

When asked if he had any money, defendant said he had $8. However, the officers found two $100 bills and a few small bills in defendant's pouch pocket. At the time defendant was booked, Officer Sam found five $100 bills in defendant's shoe. Defendant had a blue and white bandana sewn into the tongue of his shoe. The screen of defendant's cellular telephone depicted a blue and white bandana. Defendant's sweatshirt had a white powdery residue on the sleeve. Officer Sam found that significant since the suspects had jumped over a wall during the crime. On September 18, 2005, San Duong's father, who was Mr. Chung's neighbor, found a gun in a bucket under his stairs. Also in the bucket was a blue bandana. Some papers lay beside the bucket. Mr. Duong telephoned the police.

At trial, Mr. Chung identified defendant's shoes, sweatshirt, and blue bandana as the same as the assailant wore during the robbery. Mr. Wu identified defendant's sweatshirt as similar to the one worn during the robbery. Mr. Wu identified the business cards and receipts, which bore his restaurant's name, as those taken during the robbery.

III. DISCUSSION

A. Sufficiency of the Evidence

1. Kidnapping, robbery, assaults with a firearm, threats, false imprisonment

Defendant argues there was insufficient evidence to support his convictions because none of the victims were able to identify him. We disagree. In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: "[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v. Carter (2005) 36 Cal.4th 1114, 1156; People v. Hayes (1990) 52 Cal.3d 577, 631; People v. Johnson (1980) 26 Cal.3d 557, 576.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303; Taylor v. Stainer, supra, 31 F.3d at pp. 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1994) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Bean (1988) 46 Cal.3d 919, 932.) The California Supreme Court has held, "Reversal on this ground is unwarranted unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755; People v. Sullivan (2007) 151 Cal.App.4th 524, 564.)

Defendant challenges the verdicts based primarily on the inconclusive identifications by the victims. However, in addition to the tentative identifications, there was substantial circumstantial evidence from which a rational jury could find beyond a reasonable doubt that defendant committed the kidnapping, robberies, threats, and assaults. Both Mr. Wu and Mr. Chung...