People v. Vy

• Decision Date: 01 October 2004
• Docket Number: No. H025873.,H025873.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Dao Van VY, Defendant and Appellant.

19 Cal.Rptr.3d 402

122 Cal.App.4th 1209

The PEOPLE, Plaintiff and Respondent, v. Dao Van VY, Defendant and Appellant.

No. H025873.

Court of Appeal, Sixth District.

October 1, 2004.

Certified For Partial Publication.^*

As Modified on Denial of Rehearing October 25, 2004.

Review Denied January 19, 2005.

Stephen Greenberg (Under appointment by the Court of Appeal), for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Stan Helfman, Supervising Deputy Attorney General, John R. Vance, Jr., Deputy Attorney General, for Plaintiff and Respondent.

WALSH, J.^**

Defendant Dao Van Vy (age 16) was a member of a small Vietnamese gang in San Jose. He and five other young males attacked a single unarmed male in a parking lot in broad daylight after the victim claimed membership in a rival gang. Defendant — who was the only armed assailant and the only one hiding his identity by pulling a stocking over his face — stabbed the victim with a knife several times in the chest and stomach. The victim suffered massive injuries but survived due to extraordinary medical intervention.

Defendant was convicted of attempted murder (Pen.Code, §§ 664, subd. (a)/187/189) for his lead role in the brutal attack (count 1).¹ The jury also found true two enhancements: (1) the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)); and (2) defendant's attempt to murder the victim was willful, deliberate, and premeditated (§§ 189, 664, subd. (a)). Defendant was also convicted of assault (§ 240) in connection with a later attack on another Vietnamese youth that occurred in Juvenile Hall (count 2).

Defendant appeals, challenging the conviction as to count 1 only. In the published portion of the opinion, we address defendant's two claims of error concerning the gang enhancement. On the first issue, we conclude that three violent assaults by defendant's gang (including the attack on the victim) over less than a three-month period constituted sufficient evidence that the commission of such predicate crimes was one of the "primary activities" of defendant's gang. (§ 186.22, subd. (f); hereafter section 186.22(f).) Second, we find that the trial court did not commit instructional error by including attempted murder as a predicate crime that the jury could consider for the "primary activities" prong of the gang enhancement. In the unpublished portion of the opinion, we address defendant's claims of various instructional error, abuse of discretion by the court in its denial of defendant's motion under section 1385 to strike the willful, deliberate, and premeditated enhancement, and error in ordering defendant to pay $5,000 in attorney's fees under section 987.8.

We reject defendant's challenges on appeal, save for the order of attorney's fees. Except for striking the attorney's fees order, we therefore affirm the judgment.

FACTS

We present a summary of the evidence from the trial utilizing the applicable standard; we resolve factual conflicts in support of the verdict. (People v. Holt (1997) 15 Cal.4th 619, 667-668, 63 Cal.Rptr.2d 782, 937 P.2d 213.) In addition, since none of the challenges on appeal concerns the assault conviction (count 2),² our summary includes only the evidence pertaining to the attempted murder conviction (count 1).

I. Introduction

The prosecution asserted that the May 27, 2000 stabbing of the victim, Kiet Nguyen, charged in count 1 arose out of a conflict between two Vietnamese street gangs. In an aid to understanding the evidence, we identify briefly the relevant gangs and their participants:

Young Asians: Gang members included defendant, Tai N., Tu N., and Kim V. Friends of the gang included Lili H. (Kim's girlfriend), Andy N., and Thai P. (Andy N.'s ex-girlfriend).

Kings of the Night: Gang members included Kiet Nguyen (the victim), Huy L., and Dien L. Friends of the gang included Thai P. (Huy's girlfriend).

Viet Killers: Rival gang of Young Asians, and a gang friendly with Kings of the Night.

II. Prosecution Witnesses

A. Kiet Nguyen

Kiet Nguyen was 20 years old at the time of the attack. Until shortly before the incident, he was a member of the Vietnamese gang Kings of the Night (KON), which he cofounded in 1998. He had a "KON" tattoo on his arm to indicate his affiliation with the KON gang. Between 1998 and 2000, Kiet was involved with KON in fights with rival gangs, where KON was sometimes the aggressor and where weapons were sometimes used.

Kiet first became aware of the Young Asians (YA) Vietnamese gang in 1998, and he knew that defendant was one of its members. When Kiet first met defendant in 1998, there were no problems between KON and YA. About one year before the May 2000 attack, KON confronted YA near a high school; KON "checked" YA (i.e., challenged YA to a fight), and YA backed down. The YA members involved in this incident were defendant, Tai N., and one other person.

Kiet was also familiar with the Viet Killers (VK) gang. In 1999 and early 2000, KON and VK were "clicking" (were friendly and hung out together). Kiet testified that if a gang that was a rival of KON "clicked" with a third gang, KON would perceive the third gang to be its rival as well.

There were problems between YA and VK approximately one month before the May 2000 stabbing incident. There was also a confrontation between KON and YA at a coffee shop about two weeks before Kiet was stabbed.

In the early afternoon of May 27, 2000, Kiet went to the Dao Hong coffee shop in San Jose with his friend and former KON member, Huy L. They were accompanied by Thai P. (Huy's girlfriend), and Lili H. Their group sat at one table in the cafe.

After about 10 minutes, Kiet noticed Tai N., Tu N., and two other young males at another table. Kiet noticed that the males from the group were staring at him.

About five minutes later, Kiet's friends left, and Kiet remained at the table by himself. The males, including Tai and Tu, continued to stare at Kiet continuously, which caused Kiet concern. At some point within a half-hour of Kiet's arrival, the other group left the cafe.

Lili approached Kiet and told him that someone outside wanted to talk to him; she then said, "[D]on't come out." When Kiet went outside the cafe, he saw a group of six or seven young (17-18 years old) Vietnamese males, including Tai and Tu. Kiet walked over to the group and asked (in Vietnamese) what they wanted. Someone then asked Kiet, "[A]re you Kiet, KON?" Kiet responded, "[Y]es, I am. . . . [W]hat do you guys want?" The group then "jumped" him. Kiet was punched by more than one person in the area between his face and stomach. He tried to block the punches by raising his hands to his face with his arms perpendicular to his body and his elbows together.

At the beginning of the attack, Kiet saw defendant behind the group pulling a stocking over his face. (Defendant was the only one of the attackers who concealed his identity.) Kiet testified that when he saw defendant pull the stocking over his face, "I knew I was gone. [¶] . . . [¶] Because I knew he [was] going to kill me." He saw a "shiny object," which he believed was metal, "pull[ed] out from [defendant's] pocket or something, just to the right of ... where his waist [was]." Kiet observed defendant lunging toward him but did not actually see defendant hit him. He did not feel himself being stabbed at the time; he realized he had been stabbed when "[he] looked down and saw [his] guts falling out."

Kiet remained standing during the entire attack, which lasted approximately one minute. The attack ended when Kiet began running toward the entrance to the coffee shop. He had placed his hands over his stomach because of his injuries. Kiet was cognizant by this time of the severity of his wounds; he testified, "I knew I was dead." His attackers did not chase him; they were running in the opposite direction when Kiet last saw them. Kiet ran into the cafe, where he saw a friend, Hoang L., who asked Kiet who had attacked him. Kiet responded that "YA stabbed me."

Kiet was taken to the hospital, where he remained for an extended time (two weeks to one month). The police (Detective Jason Ta and Detective Shawny Williams) interviewed him in the hospital.

B. Tai N.

Tai N. was 16 years old at the time of the May 27, 2000 stabbing incident. Tai — like defendant — was originally charged with the attempted murder of Kiet, along with allegations that it was done willfully, deliberately, and with premeditation, and that it was done for the benefit of a criminal street gang.³

Tai belonged to YA and had a "YA" tattoo on his right arm. YA was started in 1998, and had five members (who had gone to school together) — Tai, defendant, Tu, Kim V., and Khoi. The other YA gang members had similar tattoos. Andy N. was not YA, although YA members were his friends. The YA members did not spend all of their time getting into fights. They also "hung out" and did "stuff that 16-year-olds do."

YA had a problem with a rival gang, VK, that arose out of a fight on March 4, 2000, at a birthday party for Lili in which Tu stabbed a VK member. After this stabbing, there were problems between YA and KON because KON "backed up" VK in fighting, and members of VK and KON hung out together. As a result, YA also considered KON to be a rival gang.

On May 27, 2000, Tai met defendant, Tu, and Andy at the Dao Hong coffee shop. Tai and his friends sat at one table. Lili arrived at the cafe with Kiet, Huy, and Thai. Tai knew Kiet and Huy, and associated them with KON. Defendant was upset that Kiet and Huy had arrived with Lili, and defendant was staring angrily at Kiet and Huy.

Defendant went outside the coffee shop, and Tai followed him. Defendant told Tai that he was "pissed off" at Kiet and didn't like him. Defendant told Tai that he wanted to "jump" Kiet; while outside, defendant called for "backup" to assist him. He...