People v. Xiong

• Decision Date: 22 September 2020
• Docket Number: C079709
• Citation: 268 Cal.Rptr.3d 861,54 Cal.App.5th 1046
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. YOR XIONG, Defendant and Appellant.

54 Cal.App.5th 1046

268 Cal.Rptr.3d 861

The PEOPLE, Plaintiff and Respondent,

v.YOR XIONG, Defendant and Appellant.

C079709

Court of Appeal, Third District, California.

Filed September 22, 2020

Certified for Partial Publication^*

Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.

MURRAY, J.

Defendant Yor Xiong shot the victim multiple times and then led police on a high-speed car chase on surface streets from south to north Stockton ending across the street from his house. A jury found defendant guilty of murder in the first degree (count 1), possession of a firearm by a felon (count 2), and evading an officer with wanton disregard (felony evading) (count 3). The jury also found true an enhancement allegation in connection with count 1 that defendant personally discharged a firearm causing the victim's death. The jury deadlocked on gang enhancement allegations on counts 1 and 2, and thereafter, the trial court granted the prosecution's motion to strike those allegations. Defendant was sentenced to 50 years to life plus two years eight months.

On appeal, defendant asserts that the trial court prejudicially erred in: (1) prohibiting him from testifying about his understanding, based on his experiences in Thai refugee camps, of a person's ability to deny allegations made by camp police officers, such testimony having been offered to establish that he made a false confession to the police in the instant case; (2) instructing the jury, in its CALCRIM No. 358 instruction, that the jury should consider with caution defendant's unrecorded statements because his defense was based on the premise that his recorded statements were coerced, false, and not credible and the instruction undercut this defense by suggesting the recorded statements should not be considered with caution; (3) refusing to hold an Evidence Code section 402 hearing regarding the testimony of the prosecution's gang expert; and (4) allowing the gang expert to testify concerning defendant's booking statements about his gang affiliation in violation of People v. Elizalde (2015) 61 Cal.4th 523, 189 Cal.Rptr.3d 518, 351 P.3d 1010 ( Elizalde ). Defendant also requests (5) that this court review the sealed transcripts of the in camera Pitchess¹ hearing to determine if the trial court followed proper procedure and released all relevant material. In supplemental briefing, defendant asserts (6) that, following the enactment of Senate Bill No. 620, his case must be remanded for the trial court to consider whether to exercise its discretion to strike the firearm enhancement, and (7) that, following the enactment of Senate Bill No. 136, his two one-year prior prison term enhancements must be struck.

In the published portion of this opinion, we conclude that the trial court erred in precluding defendant's testimony regarding his understanding about what happened to people who denied allegations made by police in the Thai refugee camps where he was born and stayed as a boy. His cultural experience was relevant to his state of mind in interacting with the detectives who interrogated him and tended to prove why he would have given a false confession. However, given the other evidence defendant was allowed to introduce concerning his confession, we conclude that he was not deprived of his constitutional right to present a defense by the preclusion of this testimony. We further conclude that the erroneous preclusion of this testimony was harmless.

We also conclude that the trial court erred in giving the following bracketed sentence from CALCRIM No. 358 : "Consider with caution any statement made by the defendant tending to show his guilt unless the statement was written or otherwise recorded." Defendant did not want the instruction, even though evidence of oral unrecorded inculpatory statements was admitted. The trial court had no sua sponte obligation to give the instruction. It is up to a defendant to request the instruction and a defendant is entitled to reject it. However, under the circumstances here, we conclude the error was harmless.

In the unpublished portion of this opinion, we modify the judgment by striking the two one-year prior prison term enhancements imposed pursuant to Penal Code section 667.5, subdivision (b).² We remand so the trial court can exercise its discretion whether to dismiss or strike the section 12022.53, subdivision (d), firearm enhancement. As for defendant's other contentions, we conclude they are forfeited, meritless, and/or nonprejudicial.

As modified, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Charges

Defendant was charged with willful, deliberate, premeditated murder (§ 187, subd. (a); count 1); possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2); felony evasion ( Veh. Code, § 2800.2, subd. (a) ; count 3); and participating in a criminal street gang (§ 186.22, subd. (a); count 4).³ The information further alleged that defendant committed counts 1 through 3 for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1).)⁴ In connection with the murder count, the information alleged defendant personally used a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), and that defendant personally used a firearm in the commission of a felony. (§ 12022.5, subd. (a).) The information also alleged that defendant had served three prior prison terms within the meaning of section 667.5, subdivision (b).

The People's Case-in-chief

The Shooting

L.C. lived in the vicinity of the shooting. She looked out a window and saw three guys talking across the street. One of them was wearing a red hat. After she closed the window, L.C. heard four gunshots and then two more. She saw a small black car speed away on 12th Street towards Airport Way.

N.V. heard what she believed to be fireworks. She then heard someone scream. She looked outside and saw a dark blue or black car, possibly an Acura, parked on the corner of 12th Street and Tiffany Street. She saw a person who looked Hispanic or Asian "looking like that they were looking down at somebody," extending his arm downward. It looked to N.V. like the person was pointing a gun at someone on the ground. N.V. also thought she heard the person "saying like ‘F you,’ and then ... like cuz or blood ...." N.V. testified that she may have told a detective that the individual said, "Fuck you, cuz, that's for messing with my family" and a detective confirmed that she did. She heard "another bang," and then the person jumped into the driver's side of the car and sped off in the direction of Airport Way. N.V. believed that there was a passenger in the front passenger seat of the vehicle as well.

M.M. heard gunfire and went to the front of her house. She saw a person lying on the ground. She saw another person with a gun in his hand, walking away from the victim to a dark blue car, getting into the driver's seat, and taking off. M.M. described the male with the gun as having light skin and dark hair, wearing shorts and a white T-shirt. She believed he was possibly Asian. The car drove onto 12th Street toward Airport Way.

S.W. and D.C. were at home with D.W. when they heard gunshots. S.W. heard between three and six gunshots. He looked out his window and saw a small dark blue or black car take off westbound on 12th Street towards Airport Way. D.C. and D.W. ran outside. D.C. saw a "guy on the ground just bleeding." Both attempted to keep the person alive until an ambulance arrived.

Officer Edward Webb arrived at the scene at approximately 4:03 p.m. On the way, he received an update of a suspect vehicle, a black Acura. Webb saw a vehicle similar to that description at a red light, headed north on Airport Way at the intersection of Dr. Martin Luther King, Jr., Boulevard. Webb observed the driver of the vehicle. Later, when Webb saw defendant at the hospital, he recognized him as the driver of that vehicle. Webb continued to the scene of the shooting. There, Webb observed the victim on the ground and noted he had been shot several times and a woman was giving him CPR. Police discovered eight cartridge casings at the scene of the shooting.

The Pursuit, Arrest, and Identification of Defendant

Officer Jimmy Kwan heard the broadcast concerning the shooting and began to drive toward the area with his lights and siren on. He heard supplementary reports indicating that the persons responsible could be in a dark-colored Honda or Acura. Two to three minutes had elapsed since the initial broadcast, and Kwan was close enough to Tiffany and 12th Streets to believe that the vehicle could be in the area, so he began looking for a vehicle matching the description. Kwan then saw a dark-colored Honda or Acura waiting at the red light on Airport Way at the intersection with Dr. Martin Luther King, Jr., Boulevard. The vehicle proceeded north on Airport Way, and Kwan let it pass. He could see at least two people in the vehicle. Kwan reported the license plate to the dispatcher and he began to follow the vehicle with his lights and siren still on. The vehicle pulled over towards the side of the road, but did not stop. Kwan observed another officer's patrol vehicle with its lights on traveling south on Airport Way make a U-turn and pull behind Kwan's vehicle. The Acura accelerated and the two patrol cars pursued. The Acura was traveling at approximately 50 miles per hour and accelerating, and was not stopping for stop signs or traffic lights. Thereafter, the Acura accelerated to approximately 80 miles per hour, crossed the cement divider, and continued driving north in the southbound lane against oncoming traffic. Kwan testified that the other patrol vehicle lost a tire...