Opinion
A150532
09-11-2018
THE PEOPLE, Plaintiff and Respondent, v. CURTIS YEE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 173309)
A jury convicted Curtis Yee of first degree murder after he shot Jian Jin during the robbery of an Oakland massage parlor. It also found true allegations that Yee committed the murder in the course of a robbery and burglary, personally and intentionally discharged a firearm causing death, and personally inflicted great bodily injury (GBI). The trial court sentenced him to a term of life without the possibility of parole for special-circumstance murder, a term of 25 years to life for the firearm enhancement, and additional terms totaling 11 years based on prior convictions.
On appeal, Yee claims that (1) the trial court erred by failing to instruct the jury that the primary witness against him was an accomplice as a matter of law; (2) the GBI enhancement must be stricken because it does not apply to murder; and (3) insufficient evidence supports the allegation that he served a prior prison term for extortion. We reject Yee's claim of instructional error, but we accept the Attorney General's concessions that the GBI enhancement must be stricken and the sentence must be vacated. We remand for a retrial of the prior-prison-term allegation and otherwise affirm the conviction.
Because the sentence must be vacated, we need not address Yee's claims that (1) remand is required for the trial court to exercise its discretion under Senate Bill No. 620 (2017-2018 Reg. Sess.) to strike the firearm enhancement; and (2) the abstract of judgment must be conformed to the court's oral pronouncement of the sentence. On remand, the court will have the opportunity to consider whether to strike the firearm enhancement and should ensure that the abstract of judgment conforms to its oral pronouncement of the sentence.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. The Plan to Rob the Massage Parlor.
On the afternoon of February 13, 2013, Yee and two of his acquaintances, Vuong Phan and Lae Lokeaphone, were at an illegal "gambling shack" on 25th Avenue in Oakland. Phan testified that Yee proposed to the other two men that the group rob a massage parlor, and Phan and Lokeaphone agreed. Phan also agreed they could drive there in his van, which was parked nearby.
Phan testified pursuant to a plea agreement under which he was to receive a 12-year sentence if he testified truthfully against Yee.
S.K., Lokeaphone's girlfriend at the time, overheard the three men talking. She testified that Yee and Phan asked Lokeaphone for a ride, and Yee explained that he needed "[t]o collect some money from someone." The three men then went outside together.
Phan testified that when he, Yee, and Lokeaphone left the gambling shack, no one had a weapon. The group did not discuss the specifics of the robbery plan, and Phan thought they were just "going to go in there and scare them and get the money." After the men got to Phan's van, Yee briefly went back inside the house.
S.K. testified that after Yee came back inside, she heard him ask to borrow a gun from Alvin Spears, who was living at the gambling shack. Phan described Spears as "basically like a body[]guard" at the gambling shack, and Spears testified that he "would provide security if necessary." According to S.K., Spears handed a gun to Yee's girlfriend, who handed it to Yee.
Yee returned to the van and showed Phan a revolver, claiming to have gotten it from "Mr. Al." At trial, Phan agreed that the gun looked like Spears's revolver, which Phan had seen before in Spears's room.
B. The Murder.
Phan testified that Lokeaphone drove the three men to the massage parlor, which was in an apartment building on 16th Avenue in Oakland. Lokeaphone parked a few doors away and stayed in the van while Yee and Phan approached the apartment. Yee knocked on the door, and an Asian "old man" opened it. Yee and the old man had a short conversation in Chinese, a language that Phan did not speak. The old man then allowed Yee and Phan to enter the apartment. Phan testified that he sat on a couch where a different Asian man, whom Phan described as "a little chubby," was also seated. Meanwhile, Yee and the old man went toward the back of the apartment.
Phan testified that Yee then pulled the revolver from his pocket and pointed it at the old man. At some point, Yee let the gun point downward, and it went off but did not hit anyone. Although Phan could not remember which event happened first, he testified that around the time the gun went off the old man took out his wallet. Phan then retrieved the wallet, which had about $30 in it.
Yee went upstairs with the revolver. Phan testified that he heard a woman screaming, then "something like [a] door slam," and finally four gunshots. Phan grabbed a laptop computer and cell phone that were lying on a table. As he ran toward the front door, he saw Yee coming downstairs. Yee said something to the old man, and the old man opened the door. The chubby man was still on the couch.
Phan testified that he was carrying the laptop when he and Yee ran outside. They got in the van, and Lokeaphone drove them back to the gambling shack. As they were driving, Phan noticed blood on the shoulder of Yee's jacket. When Lokeaphone asked Yee about the blood, Yee responded that "he shot somebody in the shoulder."
A witness visiting his parents' home, which was also on 16th Avenue, heard gunshots at around 2:30 p.m. that day. His mother screamed, and he immediately called 911. As he talked to the dispatcher, he looked outside and saw two Asian men running down the street. One of the men was holding a gun, and the other man was holding a laptop. At trial, the witness was shown Spears's revolver and confirmed that it looked similar to the one he had seen one of the Asian men holding.
C. The Proceeds of the Robbery.
Yee, Phan, and Lokeaphone got back to the gambling shack less than an hour after leaving. Phan testified, and S.K. confirmed, that he sold the laptop to the woman who ran the gambling shack for about $120. According to Phan, he, Yee, and Lokeaphone split the cash from the old man's wallet and the laptop sale. The police eventually recovered a laptop from the woman who ran the gambling shack, and the laptop's serial number matched that on a laptop box found at the massage parlor. Although Phan could not remember what happened to the cell phone, S.K. saw him give it to Lokeaphone. A few months later, the police retrieved the phone from the girlfriend of one of Lokeaphone's acquaintances, who said her boyfriend had given it to her around Valentine's Day.
D. The Physical Evidence.
When the police responded to the scene, they found Jin lying face down in the upstairs hallway of the massage parlor. He had died of two gunshot wounds to his upper body. Two bullets were recovered from his body, and two were recovered from an upstairs bedroom. There was also a "possible bullet mark" in a wall near the couch downstairs.
S.K. testified that when Yee, Phan, and Lokeaphone returned to the gambling shack on February 13, Yee had the revolver wrapped in some clothing, and she saw him give it back to Spears. Spears then asked, "Why is it missing some bullets?," but S.K. did not hear Yee respond. At trial, Spears testified that he noticed the gun was gone, and, when it was returned, that five bullets were missing. He claimed that as a result of his drug use, however, he could not to recall any interactions with Yee involving the weapon.
The week after the murder, Spears was arrested and taken into custody in Yolo County. During an ensuing interview with Oakland police officers, he was more forthcoming about Yee's actions on February 13. We do not discuss the interview in detail, however, because it is unclear which portions of it were played for the jury.
Spears soon heard rumors about "[a] robbery involving a shooting" and became concerned that his gun had been used to kill someone. Three days after the murder, he met with an Oakland police officer and gave him the revolver, which Spears told the officer "was involved either in a shooting or a homicide at an Asian brothel." A criminalist testified that it was possible that the bullets recovered from the scene and Jin's body had been fired from Spears's revolver, but "[t]he comparison was inconclusive . . . because there was not enough individual detail present."
E. The Verdict and Sentencing.
A jury convicted Yee of one count of first degree murder and found true the allegations that he personally and intentionally discharged a firearm causing death and personally inflicted great bodily injury. It also found true the special-circumstance allegations that Yee committed murder while he was engaged in the crimes of robbery and burglary.
The murder conviction was under Penal Code section 187, subdivision (a), and the enhancement allegations were found true under Penal Code sections 12022.53, subdivision (d) (firearm discharge) and 12022.7 (GBI). The jury also found true the lesser enhancement allegations that Yee personally and intentionally discharged a firearm (Pen. Code, § 12022.53, subd. (c)) and personally used a firearm (id., § 12022.53, subd. (b)). All further statutory references are to the Penal Code.
These allegations were found true under section 190.2, subdivisions (a)(17)(A) (robbery) and (G) (burglary).
After Yee waived his right to a jury trial on the various prior-conviction allegations against him, the trial court found true that he had three prior convictions: one in 1994 for robbery, a serious felony; one in 1996 for extortion, for which he served a prior prison term; and one in 2008 for assault with a firearm, also a serious felony. The court sentenced him to life without the possibility of parole for the murder and consecutive terms of 25 years to life for the personal discharge of a firearm causing death, five years each for the two prior serious-felony convictions, and one year for the prior prison term served for extortion. Time for the remaining sentencing enhancements, including the GBI enhancement, was imposed and stayed.
The trial court found true under section 667, subdivision (a)(1) that Yee had two prior convictions for serious felonies, and it found true under section 667.5, subdivision (b) that he served a prior prison term for extortion. The court also found true that Yee had three other prior convictions for which he received probation, but it did not rely on them in sentencing him.
II.
DISCUSSION
A. Yee Is Not Entitled to Relief Based on His Claim of Instructional Error.
Yee claims that the trial court erred by instructing the jury on accomplice testimony without directing that Phan was an accomplice as a matter of law. Even if we assume that Yee preserved this claim, it fails because any error was harmless.
1. Additional facts.
During the discussion of jury instructions, the trial court indicated that instructions were required on evaluating an accomplice's testimony, both as to proof of the murder and proof of the special-circumstance allegations. The court indicated it was inclined to give CALCRIM Nos. 334 and 707, which apply when the jury determines whether a witness is an accomplice, instead of CALCRIM Nos. 335 and 708, which apply when the witness is an accomplice as a matter of law. After the court suggested there was a dispute whether Phan was an accomplice to murder, given his testimony that he was "there just to do the robbery," Yee's trial counsel stated, "In a felony murder, that's all he's got to say." The court then explained its view that even Phan's testimony suggesting he was an accomplice had to be corroborated for the jury to conclude he was an accomplice, and it declined to find as a matter of law that he was an accomplice. Yee's counsel agreed that CALCRIM No. 334 should be given and did not object to CALCRIM No. 707.
Accordingly, the trial court instructed the jury under CALCRIM No. 334 that Phan was an accomplice, and therefore his testimony could not be used to convict Yee unless it was supported by other evidence, if Phan was "subject to prosecution for the identical crime charged against the defendant." The jury was further instructed that a person "is subject to prosecution if: [¶] 1. He or she personally committed the crime; [¶] OR [¶] 2. He or she knew of the criminal purpose of the person who committed the crime; [¶] AND [¶] 3. He or she intended to, and did in fact, aid, facilitate, promote, encourage, or instigate the commission of the crime." The court also gave CALCRIM No. 707, which was substantially the same instruction in reference to proof of the robbery and burglary special-circumstance allegations. Finally, the court also gave a modified version of CALCRIM No. 301, under which the jury was instructed that "[e]xcept for the testimony of Vuong Phan, which requires supporting evidence if you decide he is an accomplice, the testimony of only one witness can prove any fact."
2. Discussion.
Section 1111 bars a conviction based on the uncorroborated "testimony of an accomplice" and defines an accomplice as "one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." "[T]o be chargeable with the identical offense, the witness must be considered a principal under section 31." (People v. Fauber (1992) 2 Cal.4th 792, 833.) That statute, in turn, "defines principals to include '[a]ll persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet its commission, or, not being present, have advised and encouraged its commission.' " (Ibid., quoting § 31.) "To be an accomplice, one must act ' "with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging, or facilitating commission of, the offense." ' " (People v. DeJesus (1995) 38 Cal.App.4th 1, 23.)
" ' "Whether someone is an accomplice is ordinarily a question of fact for the jury," ' " and a defendant has the burden of proving by a preponderance of the evidence that a witness is an accomplice. (People v. Rangel (2016) 62 Cal.4th 1192, 1222.) If, however, " ' "there is no reasonable dispute as to the facts or the inferences to be drawn from the facts," ' " the trial court may instruct the jury that the witness is an accomplice as a matter of law. (Ibid.; but see People v. Hill (1967) 66 Cal.2d 536, 555 [instructing that witness is accomplice as matter of law may cause unfair prejudice in certain circumstances].) We review claims of instructional error de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569-570.)
Although the Attorney General does not raise the issue, we question whether Yee preserved this claim. If there is sufficient evidence that a witness who gives testimony implicating the defendant was an accomplice, the trial court has a duty to instruct sua sponte on the evaluation of accomplice testimony. (People v. Richardson (2008) 43 Cal.4th 959, 1024.) But Yee does not challenge the correctness of the instructions on accomplice testimony that the trial court did give, and generally " '[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' " (People v. Sanders (1995) 11 Cal.4th 475, 533-534 [suggesting claim of instructional error forfeited because no sua sponte duty to instruct that witness is accomplice as matter of law].)
Even if Yee preserved the claim, any error in failing to instruct that Phan was an accomplice as a matter of law was harmless. The failure to instruct on accomplice testimony is harmless if it is not reasonably probable that, had the instruction been given, the defendant would have received a more favorable verdict. (People v. Lewis (2001) 26 Cal.4th 334, 371; People v. Watson (1956) 46 Cal.2d 818, 836.) Here, accomplice instructions were given. But even in cases in which no accomplice instructions at all are given (and the possibility of prejudice is therefore heightened), any instructional error is harmless "if there is sufficient corroborating evidence in the record. [Citation.] 'Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense.' " (Lewis, at p. 370.) Instead, it " 'is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.' " (Ibid.)
Yee recognizes that we are bound to apply the Watson standard, but he argues that the error is of federal constitutional dimension and that we should "urg[e] the California Supreme Court to reconsider the question." We decline to do so. --------
Here, there was ample evidence to corroborate Phan's testimony. S.K.'s testimony confirmed many of the details of Phan's account, including the initial plan to rob the massage parlor, Yee's borrowing of the gun from Spears and then returning it, and the disposal of the stolen laptop and cell phone. To the extent Spears admitted recalling what had happened in February 2013, his account was also generally consistent with Phan's. The witness on 16th Avenue confirmed that two Asian men ran from the massage parlor after the murder, one holding a laptop and one holding a gun. Finally, the physical evidence corroborated Phan's testimony that Yee's gun went off downstairs and that Yee fired the gun four times upstairs. In short, any error in the omission of an instruction that Phan was an accomplice as a matter of law was undoubtedly harmless.
B. The Enhancement for Inflicting Great Bodily Injury Must Be Reversed.
Yee contends, and the Attorney General concedes, that the GBI enhancement under section 12022.7 was improperly imposed because such an enhancement cannot attach to a murder conviction. We agree. Section 12022.7 provides that it does "not apply to murder or manslaughter" (§ 12022.7, subd. (g)), and the Supreme Court has held that "subdivision (g) of section 12022.7 means what it says." (People v. Cook (2015) 60 Cal.4th 922, 924.) The GBI enhancement cannot stand.
C. Insufficient Evidence Supports the Prior-prison-term Finding Based on Yee's Extortion Conviction.
Finally, Yee claims that the trial court's finding that he suffered a prior prison term under section 667.5, subdivision (b) (section 667.5(b)), for which he received a consecutive one-year sentence, is supported by insufficient evidence and must be stricken. The Attorney General concedes that the finding lacks substantial evidence but argues that the People should have another opportunity to prove the allegation on remand. We agree that this disposition is appropriate.
The information contained several prior-conviction allegations, including an allegation under section 667.5(b) that Yee had served a prison term for an August 1996 extortion conviction in Alameda County and "did not remain free of prison custody for, and did commit an offense resulting in a felony conviction during, a period of five years subsequent to the conclusion of said term." The trial court took judicial notice of the court file for the extortion conviction, which showed that he was sentenced to a six-year prison term on September 20, 1996, with 92 days of presentence credits. The court also took judicial notice of the court files for five other Alameda County convictions: a 1989 burglary conviction, a 1990 conviction for assault with a deadly weapon, a 1991 forgery conviction, a 1994 robbery conviction, and a 2008 conviction for assault with a firearm. Yee stipulated that he was the defendant in all six cases, and the court found true all the prior-conviction allegations.
Under certain circumstances present here, a one-year consecutive term must be imposed "for each prior separate prison term" served, unless the prior prison term was "prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended." (§ 667.5(b).) "[F]or the prosecution to prevent application of" the five-year-period provision, "it must show a defendant either served time in prison or committed a crime leading to a felony conviction within the pertinent five-year period." (People v. Fielder (2004) 114 Cal.App.4th 1221, 1229.) We review a finding under section 667.5(b) for substantial evidence, requiring us to determine "whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving the enhancement beyond a reasonable doubt." (Fielder, at p. 1232.)
Here, the prosecution did not present evidence of any felony conviction occurring between Yee's 1996 extortion conviction and his 2008 conviction for assault with a firearm, a crime committed on November 11, 2007. Nor did the prosecution present any evidence to establish when Yee was released from prison for the extortion offense. Even if one ignores his custody credits and assumes that he served the full six years for extortion, his release date would have been in late September 2002—more than five years before he committed the next crime for which he was sent to prison. As a result, there was insufficient evidence to support the imposition of a one-year term under section 667.5(b) based on the extortion conviction.
As the Attorney General points out, "[r]etrial of prior conviction findings is not barred by the state or federal prohibitions on double jeopardy even when a prior conviction finding is reversed on appeal for lack of substantial evidence." (People v. Fielder, supra, 114 Cal.App.4th at p. 1234.) We therefore vacate the sentence and remand for the People to retry the section 667.5(b) allegation if they choose. (See Fielder, at pp. 1225-1226.)
III.
DISPOSITION
The sentence is vacated, and the findings under section 12022.7 that Yee personally inflicted great bodily injury and under section 667.5(b) that he served a prior prison term for extortion are reversed. The matter is remanded for further proceedings consistent with this opinion. The conviction is otherwise affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.