People v. Phung

• Decision Date: 15 March 2017
• Docket Number: G051876
• Citation: 9 Cal.App.5th 866,215 Cal.Rptr.3d 252
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Tom PHUNG, Defendant and Appellant.

9 Cal.App.5th 866

215 Cal.Rptr.3d 252

The PEOPLE, Plaintiff and Respondent,

v.Tom PHUNG, Defendant and Appellant.

G051876

Court of Appeal, Fourth District, Division 3, California.

Filed March 15, 2017

Kevin D. Sheehy, Santa Monica, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

IKOLA, J.

Defendant Tom Phung was 17 years old when he and fellow Tiny Rascal Gang (TRG) members, riding in about five cars, chased a fleeing vehicle containing eight rival gang members. A TRG member shot and killed one rival and seriously wounded

a second. A jury convicted defendant of the lesser included crime of second degree murder (Pen. Code, § 187, subd. (a) ; count 1)¹ , attempted murder (§§ 664, subd. (a), 187, subd. (a); count 2), shooting at an occupied motor vehicle (§ 246; count 3), and street terrorism (§ 186.22, subd. (a); count 4). With respect to the first three crimes, the jury found true the allegations that defendant committed them for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and vicariously discharged a firearm causing great bodily injury and death (§ 12022.53, subds. (d), (e)(1)).

The trial court sentenced defendant to an aggregate prison sentence of 40 years to life, consisting of a 15-year-to-life term for second degree murder and a consecutive 25-year-to-life term for vicariously using a firearm in that crime; concurrently with count 1, a five-year term for attempted murder and a 25-year-to-life enhancement for vicariously using a firearm in that crime; and, also concurrently with count 1, a three-year term for shooting at an occupied vehicle and a 25-year-to-life enhancement for vicariously using a firearm in that crime. The court dismissed for sentencing purposes the gang enhancement to counts 1, 2, and 3. It imposed and stayed execution of sentence on the street terrorism conviction pursuant to section 654.

On appeal defendant contends he was a passive aider and abettor and consequently his 40-year-to-life sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment. He also argues his concurrent sentence on count 3 should be stayed pursuant to section 654. Finally, he requests this court to correct a clerical error in his abstract of judgment, which describes his count 3 conviction as shooting at an "inhabited dwelling" rather than an "occupied motor vehicle."

We agree the abstract of judgment must be corrected as to count 3. In all other respects, we affirm the judgment.

FACTS

The Shooting

On March 20, 2011, about 20 people were partying at Andrew Tran's home, including defendant (a TRG member) and Leesa Huynh. The people talked about "getting back at" rival gang Power of Vietnamese (POV) because POV had thrown a brick through a window of a TRG member's house, injuring the member's "little sister."

Around 11:00 p.m., Huynh left the party in a car driven by Tran. There were three other passengers in Tran's car—Benjamin Nguyen, Jonathan Tieu, and Skyler Avila.

Nguyen gave Tran a gun, which Tran hid in the dashboard behind the car's radio. Nguyen was a Hellside gang member. Tieu was a TRG member. Tran and Avila had ties to both the TRG and Hellside gangs.

Tran's group stopped at a restaurant, where they were joined by three or four other cars of people from the party, including Hellside gang members. From there, they drove to the parking lot of a pool hall where POV members were known to hang out at times. Tran's car arrived at the pool hall first. Eventually, there might have been a total of six or seven cars there.

Tran, Tieu, and Nguyen got out of the car and shouted at people in the pool hall, yelling, "Tiny Rascal Gang," "T.R.G., what's up?", and "Fuck VT." Huynh thought the men were shouting at people in TRG's rival gangs, i.e., POV, Asian Family (AF), and Viets Together (VT).

Tran and the others got back into the car. Nguyen sat in the front passenger seat. Tran repositioned his car in the parking lot. His car and several other vehicles formed a "barricade" that served as a "check point" for other vehicles trying to exit the parking lot.

One car drove by the barricade. Someone in Tran's car said, "That's not them." Then an SUV drove by. Tran said, "That's them," and drove after the SUV onto Westminster Boulevard. Together with Tran's car, at least two other cars chased the SUV. When the SUV was in the middle lane, Tran's car switched to the left lane and was a little bit behind the SUV. Nguyen told Tran to accelerate.

Tran's car pulled up to the driver's side of the SUV. Nguyen shouted at the people in the SUV through the car's open window, asking what gang they were from. Nguyen had the gun Huynh had seen earlier. Inside the SUV, Scottie Bui (a POV gang member) said, "It's Puffy [Tran] and C.J. [Tien Phung]."

Huynh heard five gunshots emanate from the passenger side of Tran's car.

The SUV's driver told everyone to duck down. Two guys were "hit," including Bui. The SUV's occupants drove an unresponsive Bui to the hospital, carried him "over there," and left. Bui died from a gunshot wound

to the head. Another male suffered great bodily injury from a shot to his neck.

After the shooting, the Tran group drove to a house in the "neighborhood," and then to get doughnuts, along with some other people who had been with them at the party and the pool hall.

At trial, a TRG member (who pleaded guilty to attempted murder and street terrorism based on the above underlying crimes) testified that TRG members are expected to "back up" each other in fights and that a member would be "checked," i.e., beaten up, if he failed to be a back up. He identified defendant in court as a fellow TRG member and testified that defendant's brother Tien Phung was the leader of TRG at the time of the shooting.

Defendant's Police Interview

Almost three months later, on June 16, 2011, a police officer interviewed defendant. A video recording of the interview was played for the jury and a transcript was distributed. In the interview, defendant gave the officer the following account of his relationship with TRG and the events of the night of March 20, 2011 and the early morning hours of March 21, 2011.

Defendant was 17 years old and had been on probation since he was 13 or 14 years old. Defendant did not associate with TRG; he had "stopped hanging out with them since [his] last incident.... [He] helped the other detective, [he] went to school, [he] got [his] laser [tattoo] re moved...." He had already had 14 painful laser treatments to remove a TRG tattoo from his back.

Defendant was at the party the night of the shooting, but left to go to his then girlfriend's house because her mother was away from the home. He paid Cynthia to drive him to the girlfriend's house.² He was there until 1:00 or 2:00 a.m. Defendant phoned his brother to come pick him up, but his brother came and did not see him. Defendant talked on the phone to a TRG member who told him there were "VT's at the pool hall" and that defendant should come down there. Around 2:00 a.m., Cynthia and Anthony Le picked defendant up.

With defendant in the back seat, they went to a McDonald's restaurant and then to the pool hall after learning that VT, POV, and AF were there. Defendant anticipated his group would "jump" (fight) the rival gang members. He went there to back up TRG. He knew his help was not needed because the rivals' single car was outnumbered by defendant's fellow gang members' five cars. But he would have jumped in to help if needed.

His brother "came out of nowhere," stopped the car, and asked "what the hell is going on." There were a lot of cars and confusion; people passing by said that a Lexus SUV was the enemy car. Tran's car was "right behind it." Defendant heard shooting. Three cars were behind him, including his brother's car. They then went to the house of a Hellside gang member, where Hellside members said they had shot and missed. "And they were yelling and saying that why you miss and just make me feel terrible and sat there, you know, everybody just left, back doing their own thing and I went with my brother."

Defendant had started "kicking it" with TRG in 2008. He was "the good one" in his family, the only one with "a high school diploma." His older brother, Tien Phung, did not want him to "screw up" his life, so Tien Phung only let him associate with the gang. Defendant's girlfriend let him "hang out" with TRG, but would not let him join it. As a result of defendant's association with the gang, he would back them up because he would expect the same from them. Hellside had the "straps," i.e., guns. TRG did not "hook[ ] up" with Hellside, but the two gangs had the same enemies.

Expert Testimony

The People's gang expert described Asian street gang culture and behavior in general, and TRG in particular. The expert explained that Asian gangs are very mobile and do not have a neighborhood, but instead hang out at certain places like pool halls and restaurants. They are secretive about their gang affiliation and do not openly claim their gang, although they do get tattoos and dress in a gang-identifiable way. If a gang is victimized by a rival gang, they lose respect and have to use equal or greater violence against that rival.

The expert opined that TRG is a criminal street gang in Orange County and other places, and that defendant and his brother Tien were active members of TRG on the date of the shooting. TRG's enemies are VT, POV, and AF. TRG gets along with Hellside and True (or Tiny) Oriental Posse. Most TRG members are between 15 and 21 years old. TRG's primary activities include murder, assault with a deadly weapon, illegal possession of firearms, and narcotic sales.

DISCUSSION

Defendant's Eighth Amendment Challenge to his Sentence Lacks Merit

Defendant contends that the ...