People v. Loeun
| Decision Date | 10 April 1995 |
| Docket Number | No. H012038,H012038 |
| Citation | 40 Cal.Rptr.2d 160,33 Cal.App.4th 1509 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Previously published at 33 Cal.App.4th 1509, 38 Cal.App.4th 1125, 43 Cal.App.4th 31, 47 Cal.App.4th 1208 33 Cal.App.4th 1509, 38 Cal.App.4th 1125, 43 Cal.App.4th 31, 47 Cal.App.4th 1208 The PEOPLE, Plaintiff and Respondent, v. Chanda John LOEUN, Defendant and Appellant. |
As Modified April 26, 1995.
Review Granted July 13, 1995.
Lori Klein, by appointment of the Sixth Dist. Appellate Program, Santa Cruz, for defendant/appellant.
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Stan M. Helfman, Supervising Deputy Atty. Gen., Violet M. Lee, Deputy Atty. Gen., for plaintiff/respondent.
Defendant Chanda John Loeun appeals from a judgment entered after a jury convicted him of assault with a deadly weapon and of committing a crime for the benefit of a criminal street gang. (§§ 245, subd. (a)(1), and former 186.22, subd. (c).) The jury also found that he committed the assault for the benefit of a criminal street gang and in doing so personally used a deadly weapon and inflicted great bodily injury. (§§ 186.22, subd. (b)(1), 667, 1192.7, 1203, subd. (e)(3), 12022.7.) On appeal, he claims the court erred in failing and refusing to appoint an interpreter for him and that there was insufficient evidence to support the conviction and enhancement concerning gang activity. We affirm the judgment.
On May 27, 1993, Ariel Ramirez was working at a Chevron station. A group of Cambodian males came in to buy cigarettes and stared at him, taking particular note of a red-colored work rag hanging from his pocket. They left but returned a short time later with several more Asian males. They were dressed prominently in blue. One of the original group looked Ariel up and down and raising a hand menacingly said, " 'What's up?' " Another said, " The group then left.
Ariel became frightened and flagged down his cousin, Jose Ivan Corral (Ivan), who was driving by the station. Ariel's brother Ulises Ramirez and a friend Jamie Amador were driving behind Corral and also stopped. Ariel explained that Asians had come by and given him a hard time about the red rag.
Ivan saw the group at a nearby basketball court and decided to ask them what the problem was and resolve it. Ulises, Jamie, and two of Ivan's brothers followed him. They testified that they had no weapons and no intention of fighting. As they crossed a field, Ivan saw about 15 people crowded around a car near the basketball court. The trunk of the car was open. He saw more people in the area. When he was about 50-60 feet from the car, he saw someone take a baseball bat from the trunk. Suddenly a group started running toward Ivan. Two or three had weapons. Ivan and his friends turned and ran.
Ariel saw the Asians chasing Ivan. He saw a group of about 20 running toward the station. Defendant was in front and had a bat. Others also had weapons, including bats, a jack, and crowbars. Ivan ran into the station. When he saw defendant approaching with a bat, he grabbed a metal pipe and went outside to meet him.
Ivan and defendant confronted each other. Defendant held the bat as if he were ready to use it. Ivan held the pipe toward the ground to show he would use it only for protection. Ivan asked what the problem was. Defendant asked why Ivan and the others were "trying to rush us." Ivan denied it, explaining he only wanted to find out what the problem was between defendant and Ariel. Defendant was agitated and said, " 'Fuck that Norte shit.' " Ivan said he did not belong to any gang. Many more people gathered behind defendant. Ivan saw two or three variously armed with a pool cue, jack, and knives. Defendant spoke to the others, and they began to surround Ivan and his friends.
Ivan put down his pipe, raised both hands, and stepped back, saying, " 'Look, I'm even willing to put my pipe on the floor and talk it over.' " Defendant said " 'No.' " Ivan heard members of defendant's group say " 'Crip' " and one person say, " 'You want to mess with Crips.' " Defendant said, "I'm a Cambodian Crip."
When Ivan realized defendant would not put down his bat, he picked up the pipe. Those next to defendant said, " 'Fuck this shit' " and the group moved forward. Ivan stepped back and fell over a bicycle. While Ivan was on the ground, defendant started hitting him with the bat. The person next to defendant hit Ivan with a jack. While still being hit, Ivan managed to get up and run away.
Officer Joel Gonzales of the San Jose Police Department witnessed the assault. He saw defendant hit Ivan numerous times with the bat. He also saw someone next to defendant wearing a black numbered jersey hit Ivan with a long thin object. Gonzales testified that the victim had done nothing to provoke the attack. Gonzales identified defendant and the other attacker.
Officer Patrick Boyd interviewed defendant and Chad Hen, the other attacker, as well as numerous others in the group with defendant. All claimed to be members of CWA, i.e., Cambodians with an Attitude or Crips with an Attitude.
Defendant testified that he was a member of CWA. He said he initially went to the gas station because someone there had allegedly called a friend names and given him a problem. Defendant wanted to find out what happened and solve the problem. There, Ariel said there was no problem, and defendant left. He attached no significance to Ariel's red-colored rag.
A short time later, defendant saw a group of Hispanic persons walking toward him, all carrying baseball bats and car jacks. Defendant retrieved a bat from the trunk of a car. He then managed by himself to chase the Hispanic group back to the gas station. Defendant did not consider this a confrontation between rival gangs but simply a disagreement that got out of hand.
He followed the group to the gas station and armed with his bat confronted the Hispanic group, most of whom also had baseball bats. Ivan, however, had a pipe. Defendant asked why this was happening since they had settled everything. Defendant's friends and members of CWA congregated behind him. Some were armed with pool cues.
Ivan tried to make peace, talk defendant into putting his bat down, and assure him that he was not part of a rival Norteno gang. Defendant thought Ivan was trying to trick him and was afraid to put his bat down. Defendant challenged Ivan, saying, " 'Fuck that Norte shit.' " When Ivan did not react, he concluded Ivan was not a Norte and asked him, "Why do you want to fuck with the Crips?" Ivan said he had no problem with Crips.
Defendant was ready to leave, when he heard a bottle smash and "people just started swinging." Defendant saw a bat swing toward him but not who was swinging it. Defendant ducked and began to swing back in self-defense. He hit Ivan and upon seeing blood ran. He said he hit Ivan only once.
Defendant contends that court erred in failing to appoint an interpreter for him at the beginning of trial and in later ruling that he could only have an interpreter for his own testimony. He further claims that he did not knowingly and voluntarily waive his right to be assisted by an interpreter during his own testimony.
Defendant is Cambodian. On the first day of trial, he appeared with an interpreter, and the court held a hearing to determine whether to appoint an interpreter for him. Defense counsel stated that neither he nor defendant felt the need for an interpreter during the couple of hours they had conferred up to that time or during the preliminary hearing. Counsel did not get the impression from either defendant or the record that defendant had had any difficulty understanding the Miranda 2 advisement given by police before he waived his rights and made a statement. However, counsel noticed that defendant had previously had some difficulty understanding the "dispositional options" presented to him. He felt that defendant's command of English was "simple" and his vocabulary "not particularly sophisticated" and thought that at trial defendant might not understand some of the terminology used or be able to follow rapid-fire cross-examination. According to counsel, defendant initially thought he could manage in English, but after the preliminary hearing, he realized the seriousness of his case and wanted an interpreter.
The court examined defendant in English and learned that he had been living in the United States for over seven years and had attended all English schools from fifth through eleventh grades, although he might not have completed full years from sixth through eighth grades.
The court concluded defendant had failed to establish the need for an interpreter. It noted that during the hearing, defendant responded in English before the interpreter finished relating the questions to him. The court further noted defendant's cooperation with counsel in preparing the case and that up to then had never indicated the need for an interpreter.
In apparent response to defense counsel's comment that the jury "might look at [defendant] and say this guy doesn't speak English very well[,]" the court agreed to allow an interpreter if it made defendant feel more "comfortable."
For the record, defense counsel conceded that his communications with defendant in English were adequate to prepare defendant and a defense, that defendant understood the nature of the proceedings, and that defendant understood the substance of various plea offers he had rejected. However, noting the importance of trial and defendant's limited English, counsel felt "uncomfortable" proceeding to trial without defendant having the "fall back" of an interpreter who could make sure he understood and comprehended every word.
Later, when defense counsel said he intended to...
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