People v. Soun

• Decision Date: 12 May 1995
• Docket Number: No. H010766,H010766
• Citation: 40 Cal.Rptr.2d 822,34 Cal.App.4th 1499
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Bonset SOUN, Defendant and Appellant.

Page 822

40 Cal.Rptr.2d 822

34 Cal.App.4th 1499

The PEOPLE, Plaintiff and Respondent, v. Bonset SOUN, Defendant and Appellant.

No. H010766.

Court of Appeal, Sixth District, California.

May 12, 1995.

Certified for Partial Publication ^*

Review Denied Aug. 10, 1995.

Sixth District Appellate Program, Michael A. Kresser, Executive Director, Santa Clara, for appellant: under appointment by the Court of Appeal.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ronald S. Matthias, Supervising Deputy Atty. Gen., David D. Salmon, Deputy Atty. Gen., Richard Rochman, Deputy Atty. Gen., Linda Murphy, Deputy Atty. Gen., for respondent.

BAMATTRE-MANOUKIAN, Associate Justice.

On Saturday, July 7, 1990, a shopkeeper named Chan Khun was shot and killed in his San Jose video store. Within 36 hours Bonset Soun had been identified as the gunman, had given a detailed confession, and had directed police to the rifle he had used. Soun was found guilty of first degree murder in the attempted commission of robbery (Pen.Code, §§ 187, 190.2, subd. (a)(17)(i)) and two other felonies, and was sentenced to life in prison without possibility of parole. On appeal Soun does not question the sufficiency of the evidence admitted at trial to prove that he killed Khun. He argues:

(1) That the trial court improperly denied his motion to suppress much of the evidence against him on the ground that the procedures by which he was detained or arrested were illegal and that the evidence had been the fruit of the illegality;

(2) That the trial court erroneously excluded proffered evidence that his motive to kill Khun had been something other than robbery;

(3) That his self-incriminatory statement to a juvenile hall counselor should have been excluded on the ground it had been elicited in violation of his Fifth and Sixth Amendment rights; and

(4) That the trial court erroneously refused to conduct a second hearing as to whether Soun was under the age of 18 years when he killed Khun.

We have concluded that none of Soun's assertions warrants reversal and that the judgment of conviction should be affirmed. We shall publish only our discussion of Soun's first assertion.

The basic facts are essentially undisputed.

Soun (a young Cambodian) and five other Asian youths drove from Oakland to San Jose, on Saturday morning, in response to an acquaintance's request that they rob a gambling establishment for him. Their vehicle was a blue 1981 Toyota two-door sedan owned by one of Soun's confederates. Soun owned a rifle, and took it with him in the Toyota.

Once in San Jose, the six learned that the gambling establishment would not be a feasible robbery target and shifted their attention to Khun's video shop. They parked near the video shop and "cased" it, by entering the shop and asking Khun (also a Cambodian) if he had videotapes of a specified kind while looking for such details as whether the shop had surveillance cameras. A short time later, about 3:30 Saturday afternoon, Soun and three of his confederates reentered the store while the other two remained outside to serve as lookout and driver. Soun had loaded his rifle and took it with him into the shop; he later explained to police that he needed to be ready to shoot the shopkeeper should the shopkeeper have a gun of his own. Khun did not have a gun. The four youths demanded Khun's jewelry and money; when Khun professed reluctance and perhaps skepticism, Soun shot Khun three times in the chest. The four then ran from the shop, apparently without taking anything, and the six left the area in the blue Toyota. Soun initially rode in the trunk of the Toyota; on the freeway en route back to Oakland the driver stopped and Soun moved to the passenger compartment.

By shortly before noon Sunday, July 8, 1990, Oakland police had found the blue Toyota, parked on an Oakland street, and were watching it. Within a few minutes Soun and his five confederates entered the car and began to drive away. They were stopped by Oakland police; San Jose police conducted interrogations, obtained detailed confessions from Soun and several of his confederates, collected additional evidence including the murder weapon, and filed charges against all six.

Several days later, while Soun was being held in juvenile hall, he told a counselor that "he was here for killing somebody, and that he had done it for a friend who needed money for a car...."

The juvenile court subsequently determined that Soun had been an adult at the time he killed Khun. Three of Soun's five confederates were minors, who ultimately admitted the truth of Welfare and Institutions Code section 602 petitions filed against them in juvenile court; the other two pled guilty in adult criminal proceedings. Only Soun went to trial. The prosecutor elected not to seek the death penalty. A jury found Soun guilty of conspiracy to commit robbery, attempted robbery, and first degree murder in the commission of attempted robbery, with enhancements for personal use of a firearm. Soun appeals from the ensuing judgment of conviction.

The Apprehension

Soun argues that in seizing his person, transporting him to police headquarters, and holding him there for several hours the police violated the Fourth Amendment, that the violation tainted significant prosecution evidence assertedly attributable thereto, and that under the caselaw all such evidence should have been suppressed.

Soun first moved to suppress the evidence, under Penal Code section 1538.5, during the preliminary examination. The magistrate denied Soun's motion. Soun renewed his motion in the trial court, which denied Soun's motion to present evidence in addition to the preliminary examination transcript. (Cf. Pen.Code, § 1538.5, subd. (i).) The renewed suppression motion was submitted on the transcript alone, and the trial court denied the motion. In this court we review the magistrate's explicit or implicit factual findings directly, to determine whether the findings were supported by substantial evidence (People v. Ramsey (1988) 203 Cal.App.3d 671, 679, 250 Cal.Rptr. 309; cf. People v. Bishop (1993) 14 Cal.App.4th 203, 214, 17 Cal.Rptr.2d 657); we then exercise our independent judgment to determine whether, on the facts found, the seizure of Soun's person was unreasonable within the meaning of the Constitution. (People v. Leyba (1981) 29 Cal.3d 591, 597, 174 Cal.Rptr. 867, 629 P.2d 961; cf. People v. Ramsey, supra, 203 Cal.App.3d at p. 679, 250 Cal.Rptr. 309.)

So far as relevant to Soun's Fourth Amendment argument, the preliminary examination transcript reflects the following evidence.

Khun's video store faced Fair Avenue near its intersection with McLaughlin Avenue.

A witness named Hailu was working at a liquor store, on McLaughlin around the corner from the video store, on Saturday afternoon. At some time after 3 p.m. Hailu noticed a two-door blue "Japanese" car, with five to six male people associated with it, parked in an unusual way in the liquor store's parking area: The car was backed against the fence between the liquor store and the video store. When Hailu saw the car its trunk was open and all of the five or six people were standing around the trunk. Hailu was "80 percent sure they were Cambodians; 100 percent sure they were Asians." Hailu was concerned that they might have stolen property, or in any event that "something wrong was going on." As Hailu looked out, they closed the trunk. He yelled to them to "leave the parking lot," and they got into the car and drove off to the left, toward Fair. Later in the day Hailu was interviewed by the police detectives assigned to the homicide investigation, Sergeants Robinson and Escobar; Hailu acknowledged that he may have told them he saw only three or four males get out of the car.

A witness named Alcontar was driving his car on Fair, and had stopped at McLaughlin, at 3:30 p.m. on Saturday. Alcontar heard what he characterized as "two gunshots," or possibly three, from his right. He looked to his right and saw "five kids," whom he described as Asian and probably Vietnamese males between 12 and 18 years of age, running from the area of the video store toward a car parked near Fair. Alcontar believed he saw the "kids" carrying two weapons, one of which he described a "short and square" automatic weapon and the other as a rifle. He also testified he saw "one for sure," and that it was the rifle, carried by what appeared to be the oldest and second-tallest of the "kids." Alcontar testified that the car's doors and trunk were open, and that he saw another person standing near the car. The "kids" got into the car which drove off away from Alcontar, and from McLaughlin, along Fair. Alcontar made his intended left turn on McLaughlin and continued toward his destination; the car he had seen apparently went around one or more blocks and pulled in ahead of Alcontar on McLaughlin. The two cars proceeded together to Story Road and then along Story Road to the point at which it intersects Highway 101. Along the way Alcontar seized a piece of paper and a pencil and wrote down the car's license number: He was confident of the first part of the number but not of the order of the last three digits. The number he wrote down was 1RCS525; it was the 525 of which he was unsure. Alcontar told the police that the car was maroonish or reddish in color. He testified at preliminary examination that the car was dirty and that it was "a short, a little, small foreign car" which "could have been an either Toyota or something small and square." He acknowledged he told the police it was a two-door car. The car, with what appeared to Alcontar to be five occupants, turned on the ramp to northbound Highway 101, which intersects Highway 880, the principal route from that area to Oakland, a short distance farther north. Alcontar continued on Story Road. Alcontar was interviewed by Sergeants Robinson and Escobar later...