Filed 7/29/04 P. v. Pok CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT THE PEOPLE, B166394 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. SA043631) v. SOPHAN POK, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County. Steven van Sicklen, Jr., Judge. Affirmed as modified. Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lane E. Winters, Supervising Deputy Attorney General and Richard T. Breen, Deputy Attorney General, for Plaintiff and Respondent. Carlos Gonzalez, who happened to be in the territory of the Venice 13 gang, was shot to death on November 11, 2001, in retaliation for the shooting death earlier that day of John Lovejoy, a member of the Culver City Boys gang and Diablo clique to which appellant Pok belonged. Following a jury trial, appellant Sophan Pok was convicted of 1 the first degree murder of Carlos Gonzalez (Pen. Code, § 187, count 4 or 5), possession of cocaine for sale (Health & Saf. Code, § 11351, count 1), possession of methamphetamine for sale (Health & Saf. Code, § 11378, count 2), and felony evasion of police in willful disregard for safety (Veh. Code, § 2800.2, subd. (a), count 3). The jury found a principal was armed as to the two drug counts (Pen. Code, § 12022, subd. (d)); that the murder was committed for the benefit of a gang (Pen. Code, § 186.22, subd. (b)(4); and defendant personally and intentionally discharged a gun causing death (Pen. 2 Code, § 12022.53, subd. (b),(c), and (d)). Appellant was sentenced to a total of 62 years to life in prison: 25 years to life for the murder, an additional 25 years to life for the gun allegation, a determinate term of 10 years for the gang allegation, and a total of an additional two years for count 1, its gun enhancement, and count 3, with the remainder stayed. He appeals the judgment of conviction. Appellant does not challenge the murder conviction. His appeal contests the sufficiency of the evidence to support the gang allegation and the allegation that a principal in the drug crimes was armed. He further contends that the trial court committed sentencing error in imposing a determinate term on the gang allegation and in giving conflicting instructions on intent regarding felony evasion. We shall strike the 10- year term for the gang allegation (see People v. Johnson (2003) 109 Cal.App.4th 1230, 1237-1239) and otherwise shall affirm the judgment. 1 The count was renumbered count 4 for the purpose of jury deliberation. 2 A prior prison allegation was bifurcated, and the allegation was later dismissed. Unless otherwise noted, all further statutory references are to the Penal Code. 2 PROCEDURAL HISTORY AND STATEMENT OF FACTS John Lovejoy, an “absolutely loved” member of the Culver City Boys gang and Diablo clique, was shot to death about 1:30 a.m. on November 11, 2001. In Lovejoy’s pocket was a personal phone book with a list of numbers, including one listed as “Sophan,” appellant’s first name, with a pager number. Within hours, at about 4 a.m. a member of Lovejoy’s gang and clique shot and killed a Santa Monica 13 (sic) gang member within a block of the instant shooting. A third shooting occurred about 5 a.m., with Daniel Lal, not a gang member, as the now-paralyzed victim of Culver City Boys retaliation. Andrew Gonzalez, a known Venice 13 gang member, was shot at about 1:30 in the afternoon by the Culver City Gang. The Venice 13 gang is the most violent rival 3 of the Culver City Boys, both of which are primarily Hispanic. Then, about 8:40 p.m. on the same day, the shooting involved in the case at bench occurred in the heart of Venice 13 territory, at 6th and Broadway. The victim was coming out of an alleyway. Two men drove by in a Honda owned by appellant and shot victim Carlos Gonzales, who died of multiple gunshot wounds. Appellant was identified as the passenger by a neighbor, a nurse who lived near 6th and Broadway in Venice with her young grandchildren. The nurse heard four to six gunshots and told her grandchildren to fall on the floor “as usual;” they did so. The nurse then looked outside from the second story and saw a car on the wrong side of the street, with two people in the front seat. The passenger was sitting in the door window and after about five minutes lowered himself back into the car. He wiggled and struggled to get 4 back into the car. 3 Appellant is the only member of the Diablo clique of Asian descent; according to an officer familiar with the Culver City gang, no one else in the clique resembles appellant. Moreover, a person of a different ethnicity would have to “put in more work” in order to get respect of the gang. 4 The nurse testified that although the night was dark, the lighting conditions were “very light” with white lights on the street. However, photographs of the crime scene and 3 The nurse testified that the passenger was wearing a very dark shirt; he had short shaven hair and, asked his ethnicity, testified he was “Asian, Hispanic” and not African- 5 American. He had something shiny in his hands and was pointing it on top of the hood of the car. Looking on the ground near the driver’s side, she saw a familiar person hurt and unsuccessfully trying to get up but falling down 6 or 7 feet from the car; given the shots she had heard, she assumed he had been shot. The nurse took a towel from her home and told a man passing by to apply direct pressure to the bleeding. The nurse was shown a six-pack at the police station the next day and identified appellant as the passenger in the car. She wrote “The haircut looks like No. 5. As I could 6 see from the back, haircut appears very short cut.” She looked at the photograph and testified the haircut and coloring were significant, the shape of his head was the same, 7 and it looked exactly like the person she saw that evening. Recognizing his hair had since grown out, she identified appellant at trial. She also positively identified the car, a Honda, which she testified stayed at the scene for six or seven minutes in all and moved testimony by officers established that they are not white lights but are sodium vapor lights, with an orange glow. 5 She thought she reported his ethnicity as Asian or Latino, but after reading her written statement testified she had not. She did not know what the other person in the front seat looked like or whether there were other people in the automobile. Appellant’s booking photo, in which he appears to be a dark-skinned Hispanic, showed him wearing a dark shirt. 6 A gang officer looking at the photograph could not tell who it was. 7 On cross-examination, she testified that appellant was the only person in the six- pack with a shaved head. She could not testify that appellant was the same person she saw that night, only that “he appears to look like that person based on the haircut that was shaved and the shape of his head, which is unusual.” She recognized, as did another neighbor and police, that shaved heads are “not uncommon” in that neighborhood. 4 8 toward her slowly, at an impound lot the next day and testified the car was “identical” to the car she saw involved in the murder. Another neighbor identified the car as looking “familiar” to the car involved in the 9 shooting. The second neighbor ran out after she heard gunshots, 15 feet from the car, and saw the victim, whom she knew, fall down; she called police. She also identified the black Honda and testified it was going towards California Street. She could not see the driver or the passenger and, contrary to the nurse, testified the car was present only a minute or two from the time she heard the gunshots. In addition, she did not see anybody 10 sitting in the window of the passenger side struggling to get in. The nurse called 911. The operator told her other calls had been received. Tagging of “V13” and “Venice” were right across the street from the crime scene and were common in the area. A fence painted with “Venice 13” was on the west side of 11 the street between Broadway Alley and Broadway Avenue. One officer testified he had 12 made over 250 arrests in his three years of patrolling the Oakwood area. 8 The night of the shooting, she reported it was a Toyota or Honda-shaped car. She viewed several Hondas that night. 9 Further, she testified she did not want to be in court and people in her neighborhood do not like to get involved when they see a drive-by. She came “maybe to stop the violence.” An officer who patrols the area for gang activity agreed that people in the area are usually “not very” cooperative when there is a shooting.