Opinion
C081262
11-14-2017
THE PEOPLE, Plaintiff and Respondent, v. LOURTH PAK, Defendant and Appellant.
MODIFICATION OF OPINION [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on November 14, 2017, be modified as follows:
1. On page 14, following the final sentence of the second full paragraph, the following two sentences should be added:
He also testified that he was familiar with the facts of the case because he personally conducted gang investigations of co-participants Phienesana and Soy. He did more than simply read the reports; he had personal knowledge of the crime.
The paragraph shall now read:
In addition to the certified convictions, Detective Slater also testified about the predicate offenses. He explained that all three of the gang members had participated in the assault, emphasizing that "they" assaulted the victim. He also testified that he was intimately familiar with the facts of the case because he personally conducted the investigations of co-participants Phienesana and Soy for the assaults. He added that he was familiar with the facts of the case because he personally conducted gang investigations of co-participants Phienesana and Soy. He did more than simply read the reports; he had personal knowledge of the crime.
This modification does not change the judgment. FOR THE COURT: /s/_________
Hull, Acting P. J. /s/_________
Mauro, J. /s/_________
Duarte, J. NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. STK-CR-2015-5369, SF-130579A)
While his young neighbor walked home from school, defendant Lourth Pak, an admitted former gang member, confronted him about the color (red) of his jacket. During the course of a disputed interaction between defendant and the victim, defendant hit the victim and also took his jacket. A jury found him guilty of robbery and inflicting corporal injury on a child (Pen. Code, §§ 211, 273d, subd. (a)), and found that he had committed both offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Although defendant was accused of burning the jacket, the jury acquitted him of arson. (§ 451, subd. (d).) The trial court sentenced defendant to five years in state prison.
Further undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court had a duty to instruct the jury sua sponte on self-defense with respect to the corporal injury charge, and that the failure to give the instruction violated his Fifth, Sixth, and Fourteenth Amendment rights. He also contends insufficient evidence supports the gang enhancements under section 186.22, subdivision (b)(1). We conclude the court erred in failing to instruct on the defense of self-defense for the corporal injury to a child offense, but that error was harmless beyond a reasonable doubt. We find that sufficient evidence supported both gang enhancements.
FACTS AND PROCEEDINGS
The Prosecution Case
Defendant and L.S. lived next door to one another in a triplex in northeast Stockton. The triplex was located in a neighborhood where the Asian Streetwalkers, a validated Asian Crip gang that associates with the color blue, operated.
On January 21, 2015, L.S. was walking home from school wearing a red jacket. Defendant, who admitted to being a former Asian Streetwalkers gang member, told L.S. to take off his jacket. L.S. testified that he heard defendant say the word "Blood."
L.S. responded "no," and tried to walk around defendant. According to L.S., defendant then punched him in the face, cutting his lip and causing it to bleed. L.S. testified he was scared and gave defendant his jacket. At the time, defendant was about 42 years old and L.S. was 12 years old.
A neighbor who lived across the street, Lorine Almanza, witnessed the incident. She called out to L.S. to come to her house. L.S. walked over to where she was standing in her driveway and called the police. According to Almanza, defendant "just hit" L.S., and he was "talking all kinds of stuff . . . ." She testified that defendant told L.S. that "this was his neighborhood and that they were supposed to be wearing blue instead of red." He told L.S. to take off his jacket. Looking scared, the boy complied. Defendant then hit him in the face. She saw defendant throw L.S.'s jacket into a fire that was burning in a nearby metal barrel.
A short time later police responded to the scene. Officer Zavala interviewed L.S. and observed that his left cheek was swollen and his lip was cut. After talking with L.S., Zavala walked over to defendant. He was standing over a burn barrel. Officer Zavala testified that a fire in the barrel was "going pretty good"; he saw a small square of red fabric burning inside the barrel.
When he asked defendant what was going on, defendant told Officer Zavala that he had been disrespected and that was why he had taken the jacket. Officer Zavala handcuffed defendant and read him his Miranda rights. Defendant then said he was being disrespected by L.S. wearing the red jacket in the neighborhood. He admitted taking the jacket and putting it in the burn barrel. He also admitted slapping L.S. While en route to the jail for booking, defendant told another officer that L.S. kept disrespecting him and he was getting tired of it. He also said L.S.'s dad gave him permission to slap L.S., and that he also gave him the red jacket.
Miranda v. Arizona (1966) 384 U.S. 436 .
An information charged defendant with second degree robbery (§ 211, count 1), arson (§ 451, subd. (d), count 2), and inflicting corporal injury on a child (§ 273d, subd. (a), count 3). The information alleged that defendant committed each offense for the benefit of, at the direction, or in association with a criminal street gang. (§ 186.22, subd. (b)(1).) Defendant pleaded not guilty and denied the gang enhancements.
Gang Evidence
At trial, the prosecution's gang expert, Detective Slater, testified that the Asian Streetwalkers gang was validated as a gang in Stockton in 1989. It is a Crip gang that associates with the color blue. Because red is associated with the Blood gang, Detective Slater testified that it would be considered a form of disrespect for anyone to wear red in the Asian Streetwalkers neighborhood where L.S. and defendant lived.
Detective Slater described the primary activities of the Asian Streetwalkers gang, including robberies, weapons violations, narcotics violations, shooting into an inhabited vehicle, shooting into an inhabited motor vehicle, shooting into a residence, and burglary. He also testified about three predicate offenses committed by various Asian Streetwalkers gang members in 2009. The predicate offenses were based on a single incident where three Asian Streetwalker gang members confronted a rival Blood gang member outside a liquor store, assaulted him, and stole his vehicle. Each was convicted of assault with a deadly weapon, and all were required to register as gang members. Detective Slater personally investigated two of the gang members involved in the incident. He confirmed that all three of the gang members participated in the crime together.
In Detective Slater's opinion, defendant was a member of the Asian Streetwalkers gang. He based his opinion on defendant having "claimed" membership in the gang, having been involved in gang-related activities and wearing gang colors, having an ASW gang tattoo, and his commission of the crimes against L.S.
Detective Slater opined that taking L.S.'s jacket and burning it was gang related. L.S.'s red jacket would have been seen as an act of disrespect in a blue Crip neighborhood, and in gang culture such disrespectful acts are handled with violence. Hitting L.S. in the face and taking his jacket while yelling about Bloods so others in the neighborhood could hear, in Detective Slater's opinion, benefited the gang because it instilled a constant state of fear thereby discouraging witnesses from getting involved, calling police, or testifying for fear of retaliation.
The Defense
Defendant testified on his own behalf. According to him, L.S. had previously "provoked" and "bull[ied]" him. L.S. had also pulled down his pants on three or four occasions. On the day of the incident, defendant was outside talking with some people while holding his infant niece. He saw L.S. walking towards him, so he tried to ignore him by turning around. When he turned back around, L.S. was close to him and he thought L.S. might try to pull his pants down again. He therefore slapped L.S. and told him to back up and give him some respect. Defendant claimed L.S. got mad, pulled off his jacket, and tried to hit him with it. He denied ever taking the jacket, and testified that L.S. had given it to his father.
Defendant admitted he told the officer transporting him to jail that he had hit L.S. for being disrespectful, but explained that he was referring to L.S. pulling his pants down in the past. He also admitted being a former Asian Streetwalkers gang member, claiming he had been jumped out of the gang when he was 14 years old.
The jury found defendant guilty of robbery and corporal injury to a child (§§ 211, 273d, subd. (a)), but acquitted him of arson (§ 451, subd. (d)). It also found that he committed the two offenses for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) The court sentenced defendant to an aggregate term of five years in state prison. The court imposed a five-year upper term for the robbery, and imposed and stayed the middle term for the corporal injury to a child offense as well as for the attached gang enhancement under section 654. Because the court believed mental health issues may have contributed to the crime, it struck the penalty for the gang enhancement attached to the robbery offense. Defendant timely appealed.
DISCUSSION
I
Self-Defense Instruction
Defendant contends the trial court had a duty to instruct the jury sua sponte with CALCRIM No. 3470, the pattern jury instruction on self-defense. The absence of the instruction, he argues, violated his constitutional rights to a fair trial, to present a defense, and to due process. He characterizes the purported error as "structural," requiring reversal without any showing of actual prejudice. Although we agree the court should have instructed the jury with the self-defense instruction as it related to the corporal injury charge, we conclude the omission is subject to harmless error analysis. After examining the entire record, we conclude the error was harmless.
A. Duty to Instruct on Self-Defense
" 'The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request.' " (People v. Rogers (2006) 39 Cal.4th 826, 866; also People v. Cole (2004) 33 Cal.4th 1158, 1206 ["A trial court must instruct the jury on every theory that is supported by substantial evidence, that is, evidence that would allow a reasonable jury to make a determination in accordance with the theory presented under the proper standard of proof"].) That obligation encompasses instructing on a defense the defendant is relying on or a defense that is supported by substantial evidence and is not inconsistent with the defendant's theory of the case. (People v. Breverman (1998) 19 Cal.4th 142, 157.) "The fact, if it appears, that such evidence does not inspire belief does not authorize the failure to instruct: 'However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true.' [Citation.]" (People v. Newton (1970) 8 Cal.App.3d 359, 377.)
The People question whether self-defense is a valid defense to corporal injury on a child, noting that no court has imposed a duty to instruct on self-defense in this context. In People v. Clark (2011) 201 Cal.App.4th 235, 251 (Clark), this court held that self-defense can be a defense to a child abuse charge. There, the trial court agreed to instruct on self-defense with respect to a felony assault and the lesser included offense of simple assault, but refused the defendant's request to instruct on self-defense in connection with a count of felony child abuse and the lesser included offense of simple child abuse. (Id. at p. 247.) In concluding the trial court erred in refusing to give the instruction for the child abuse charges, Clark emphasized that there was no apparent legislative intent to preclude the application of the defense in cases where the threat of harm to the person comes from a minor. (Id. at p. 248.) "Indeed, the case law suggests broad application of the defense without regard to the charge or the source of the threat perceived by a defendant. Self-defense focuses on 'the nature of the threat [to the defendant], rather than its source.' " (Id. at p. 249.) Thus, the court saw "no reason why the codified defense of self-defense should not be available to anyone who lawfully resists the application of force regardless of the source of the force and regardless of the charges levied by the prosecution." (Ibid.)
Although Clark considered the applicability of self-defense in the context of the general felony child abuse statute (Clark, supra, 201 Cal.App.4th at p. 247; § 273a), we see no reason why its rationale would not apply equally to the corporal injury to a child offense found in section 273d. As in Clark we "find it more telling that there is an absence of case law prohibiting the defense" in the corporal injury context. (Clark, at p. 249.) If warranted by the evidence, self-defense can be a defense to a corporal injury charge.
CALCRIM No. 3470 is the pattern jury instruction for self-defense. The instruction generally provides that a defendant is not guilty of an applicable offense if he used force against the other person in lawful defense or in defense of another. A defendant acts in lawful self-defense or defense of another if: "[¶] 1. The defendant reasonably believed that [he/she/or someone else] was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully]; [¶] 2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger." "When deciding whether the defendant's beliefs were reasonable," the jury should "consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed." (CALCRIM No. 3470.)
The instruction also includes the following bracketed language to be given if warranted by the particular facts of a case: "[t]he slightest touching can be unlawful if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind." (CALCRIM No. 3470.) If the jury finds that the victim threatened or harmed the defendant or others in the past, CALCRIM No. 3470 explains that the jury "may consider that information in deciding whether the defendant's conduct and beliefs were reasonable," and that the defendant "is justified in acting more quickly or taking greater self-defense measures against [a] person" who has threatened or harmed him in the past.
Defendant's own testimony provided sufficient evidence from which the jury could conclude he hit L.S. in self-defense, which means an instruction on self-defense was required. (See, e.g., People v. Burnham (1986) 176 Cal.App.3d 1134, 1148 ["It is clear nothing more than the testimony of a defendant may be sufficient to trigger the duty to instruct sua sponte on the defense of bona fide belief in the victim's consent"].) Defendant testified that L.S. had repeatedly bullied him in the past, and had pulled his pants down on several occasions. He testified that he saw L.S. walking towards him, and that when he turned around, L.S. was very close to him. Based on his past experience, he believed L.S. was going to pull his pants down again. He therefore hit L.S. one time in the mouth to thwart the anticipated attack.
The People concede that having his pants pulled down in public would be an "indignity [defendant] might not want to suffer," but argue that defendant's testimony "is simply insufficient to establish that [he] 'reasonably believed that he was in imminent danger of suffering bodily injury.' " The People's statement of the standard, however, is incomplete. Pulling down someone's pants could qualify as a battery, and, thus, an "unlawful touching," for purposes of the self-defense instruction. (See § 242 [defining a "battery" as "any willful and unlawful use of force or violence upon the person of another"]; see also People v. Dealba (2015) 242 Cal.App.4th 1142, 1149, 1150 [only a slight unprivileged touching is needed to satisfy the force requirement for a criminal battery; force need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave a mark].)
Given defendant's testimony, we conclude substantial evidence supported giving a self-defense instruction as to the corporal injury to a child offense. The trial court erred in failing to so instruct the jury sua sponte.
B. Harmless Error Analysis
We turn, then, to the error's affect, if any, on defendant's trial. Citing United States v. Escobar de Bright (9th Cir. 1984) 742 F.2d 1196, at pages 1201-1202, he contends the error deprived him of a defense resulting in a structural error that is reversible per se. The People counter that the proper standard is that of People v. Watson (1956) 46 Cal.2d 818.
Omitting the instruction, we believe, is subject to harmless error analysis rather than a per se reversal. (See, e.g., Clark, supra, 201 Cal.App.4th at p. 251 [finding omission of self-defense instruction for child abuse charges harmless under any standard].) Our Supreme Court has yet to decide which standard of harmless error review applies to the failure to instruct on an affirmative defense. (People v. Salas (2006) 37 Cal.4th 967, 984.)
We find People v. Flood (1998) 18 Cal.4th 470 instructive. In Flood, our Supreme Court addressed instructional error that relieved "the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense." (Id. at pp. 479-480.) The court concluded that "instructional errors—whether misdescriptions, omissions, or presumptions—as a general matter fall within the broad category of trial errors subject to Chapman[ ] review on direct appeal." (Id. at p. 499.)
Chapman v. California (1967) 386 U.S. 18 .
Although Flood addressed the failure to instruct on an element of a crime, and not a defense, the failure to instruct on self-defense implicates the same constitutional considerations as failure to instruct on an element of the offense. Once the defense is raised, the prosecution must prove beyond a reasonable doubt that defendant did not act in self-defense. (People v. Banks (1976) 67 Cal.App.3d 379, 384.) If there remains a reasonable doubt whether defendant acted unlawfully, he must be acquitted. Defendant "has no burden of proof or persuasion, even as to his defenses." (People v. Gonzalez (1990) 51 Cal.3d 1179, 1214-1215.) As Flood held, relieving the state of its burden to prove its case beyond a reasonable doubt violates defendant's right to due process of law unless the error is itself harmless beyond a reasonable doubt. (People v. Flood, supra, 18 Cal.4th at pp. 491, 499.)
An error in omitting an instruction is harmless when a factual question posed by that instruction was necessarily resolved adversely to the defendant under other, properly given instructions. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 96.)
The court gave several instructions that mentioned self-defense. The court instructed the jury with CALCRIM No. 917, entitled "Insulting Words Are Not A Defense." Under that instruction, the jury was told that, "Words, no matter how offensive, and acts that are not threatening, are not enough to justify an assault or battery. [¶] However, if you conclude that the alleged victim in this case [L.S.] spoke or acted in a way that threatened [defendant] or his niece with immediate harm or an unlawful touching, you may consider that evidence in deciding whether [defendant] acted in self-defense or defense of others." The court also instructed the jury on simple battery (CALCRIM No. 960) and simple assault (CALCRIM No. 915), the lesser included offenses to the corporal injury charge. Each of those instructions stated that the People had to prove defendant did not act in self-defense or in defense of someone else. Finally, CALCRIM No. 1403 related to the gang evidence presented during trial and instructed the jury that it could consider gang activity evidence to decide whether "[t]he defendant actually believed in the need to defend himself." We agree with defendant that these instructions were inadequate to present the issue of self-defense properly to the jury because they did not apply the defense specifically to the corporal injury to a child charge or set forth the requirements for self-defense.
The People argue that the error was harmless. Citing defendant's convictions for robbery and corporal injury to a child, they contend that the convictions show the jury rejected defendant's testimony, finding it not credible.
First and foremost, the conviction for corporal injury to a child alone does not show the jury rejected defendant's claim of self-defense, because that defense was not presented to the jury. Further, this is not a case where the jury accepted the People's case entirely while rejecting defendant's version. The jury acquitted defendant of arson, despite strong prosecution evidence that he burned the jacket.
The jury did, however, make findings as to defendant's mental state in his confrontation with L.S. The jury found the gang enhancement true as to the corporal injury to a child count. In finding the enhancement true, the jury found defendant inflicted injury "for the benefit of, at the direction of, or in association with a criminal street gang" and defendant intended "to assist, further, or promote criminal activity by gang members." Thus, the jury found defendant struck L.S. because the boy was wearing red, which defendant perceived as a sign of disrespect to the gang. This motive and intent to promote the gang is inconsistent with a claim of self-defense to prevent an unwanted touching. The jury's verdict of guilty on the robbery and the true finding on the accompanying gang enhancement show the jury determined that defendant took the red jacket, not because it could be used in a battery, but to demand respect for the gang and to reinforce the gang's dominion of the neighborhood. The jury found defendant's entire encounter with L.S. was based on his gang motivation and intent.
In finding defendant's mental state during both the corporal injury to child and the robbery was gang related--that he acted to promote the gang--the jury necessarily rejected defendant's testimony that he struck L.S. to prevent him from pulling down his pants. Because the jury's findings show it resolved the factual issue of defendant's mental state adversely to him, we are convinced beyond a reasonable doubt that the omitted instruction did not contribute to the verdict. (Chapman v. California, supra, 386 U.S. at p. 24.)
II
Gang Enhancement
Defendant contends insufficient evidence supports the gang enhancements. In his view, the evidence failed to establish the requisite "pattern of criminal gang activity" under section 186.22, subdivision (b)(1) because it is unclear whether two or more persons committed two separate predicate offenses on a single occasion. We disagree with defendant's view of the evidence, and conclude substantial evidence supports the gang enhancements.
When considering a sufficiency of the evidence challenge, we must " ' "review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence--i.e., evidence that is credible and of solid value--from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt." ' " (People v. Hill (1998) 17 Cal.4th 800, 848-849.) We may not reweigh the evidence or substitute our judgment for that of the trier of fact. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "[O]ur opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment." (Hill, at p. 849.) Reversal for insufficient evidence is warranted only where it clearly appears that upon no hypothesis whatever is there sufficient evidence to support a conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Massie (2006) 142 Cal.App.4th 365, 371.)
Section 186.22, subdivision (b)(1), a provision of the Street Terrorism Enforcement and Prevention Act (the Act), imposes additional punishment for felony convictions "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." The Act defines a criminal street gang as any ongoing association that consists of three or more persons, that has a common name or common identifying sign or symbol, that has as one of its "primary activities" the commission of certain specified criminal offenses, and that engages through its members in a "pattern of criminal gang activity." (§ 186.22, subd. (f).) "A gang engages in a 'pattern of criminal gang activity' when its members participate in 'two or more' statutorily enumerated criminal offenses (the so-called 'predicate offenses') that are committed within a certain time frame and 'on separate occasions, or by two or more persons.' " (People v. Zermeno (1999) 21 Cal.4th 927, 930; § 186.22, subd. (e) [defining "pattern of criminal gang activity"].)
To prove a "pattern of criminal gang activity," the prosecution introduced the convictions of Jeremy Caras, Somphone Phienesana, and Mike Soy, three Asian Streetwalkers gang members who assaulted a rival gang member on the same occasion in 2009. According to defendant, the three convictions were insufficient to establish the requisite pattern of criminal gang activity because it is unclear whether each of the men assaulted the victim, or whether one assaulted the victim while the others merely aided and abetted the assault. He cites People v. Zermeno, supra, 21 Cal.4th at pages 931-933, for the proposition that proof that one gang member committed a crime and was aided and abetted by another gang member establishes only one predicate offense.
Defendant, however, views the evidence in the light most favorable to himself rather than the light most favorable to the judgment as required. (People v. Hill, supra, 17 Cal.4th at pp. 848-849.) When viewed properly, the evidence in the record supports the jury's true finding for the gang enhancements.
In addition to the certified convictions, Detective Slater also testified about the predicate offenses. He explained that all three of the gang members had participated in the assault, emphasizing that "they" assaulted the victim. He also testified that he was intimately familiar with the facts of the case because he personally conducted the investigations of co-participants Phienesana and Soy for the assaults.
The certified convictions and Detective Slater's testimony regarding his personal knowledge of the multiple gang investigations into the assaults on the victim constitute substantial evidence of the necessary predicate offenses. (People v. Duran (2002) 97 Cal.App.4th 1448, 1453 [certified minute order documenting a gang member's prior conviction, coupled with a gang expert's testimony, was sufficient to establish predicate offense]; Evid. Code, § 452.5, subd. (b)(1) [certified official record of conviction admissible to prove the commission of a criminal offense].) From the evidence, the jury reasonably could have inferred that each of the three men personally participated in the assault on the victim. We are bound to accept all logical inferences the finder of fact might have drawn from the circumstantial evidence when evaluating a sufficiency of the evidence challenge. (People v. Dealba, supra, 242 Cal.App.4th at p. 1149.)
Given our conclusion that the three assault offenses committed on the same occasion against the same victim were sufficient to establish the pattern of criminal gang activity element of the gang enhancement, we need not address the People's argument that Detective Slater's testimony that the three gang members also stole the rival gang member's vehicle after the assaults, is sufficient to establish a predicate offense for grand theft of a vehicle.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Mauro, J.