P. v. Louie 2/7/12 CA3

State: California

Court: California Eastern District Court

Docket No: C062821

Case Date: 02/07/2012

Plaintiff: P.

Defendant: Louie 2/7/12 CA3

Preview:Filed 2/7/12

CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL HONG LOUIE et al., Defendants and Appellants.

C062821 (Super. Ct. Nos. SF103502B & SF103502C)

APPEAL from a judgment of the Superior Court of San Joaquin County, Cinda S. Fox, Judge. Affirmed as modified. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Michael Hong Louie; David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant Soriyaa Ek. Edmund G. Brown, Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Charles A. French, Deputy Attorney General, Craig S. Meyers, Deputy Attorney General, for Plaintiff and Respondent.

*

Pursuant to California Rules of Court, rule 8.110, this opinion is certified for publication with the exception of Parts I-III of the Discussion. 1

The sentencing portion of this opinion highlights the difficulty courts face reconciling Penal Code section 654 with Penal Code section 186.22, subdivision (a), the substantive gang offense. Section 654 prohibits punishing an act or omission Section 186.22,

under more than one provision of law.

subdivision (a) imposes state prison time for anyone who actively participates in a criminal street gang and willfully promotes, furthers, or assists in felonious criminal conduct by members of the gang. The difficulty arises because the same act

results in a conviction for the underlying "felonious criminal conduct" and for the substantive gang offense. Although a

defendant may be convicted on multiple theories for the same act, a defendant may not be subjected to multiple punishments for the same act. Defendants Michael Hong Louie and Soriyaa Ek, both validated gang members, were tried and convicted on multiple counts after they set fire to the apartment of a woman who repeatedly reported gang activity in her neighborhood. Just

prior to setting fire to the apartment, Ek called the victim a "cop caller[,]" and told her, "[y]ou're going to get yours." After the fire, but before any arrests had been made, Ek returned to the victim's new apartment and threatened her again. Defendants were charged with the substantive crimes of attempted murder (Pen. Code,

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