P. v. Sun 11/28/07 CA2/4

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B194690

Case Date: 03/13/2008

Preview:Filed 11/28/07

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, Plaintiff and Respondent, v. HUI SUN, Defendant and Appellant. B194690 (Los Angeles County Super. Ct. No. GA055979)

APPEAL from a judgment of the Superior Court of Los Angeles County, Rafael A. Ongkeko, Judge. Reversed in part, affirmed in part and remanded. Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Attorney General and Ryan B. McCarroll, Deputy Attorney General for Plaintiff and Respondent.

* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of parts IIIC and IIID of the Factual and Procedural Background and Background and parts I and III of the Discussion.

Appellant Hui Sun, convicted of one count of second degree murder and one count of attempted murder, appeals his convictions and aspects of his sentence, contending: (1) prosecutorial misconduct influenced the jury's decision to convict him of murder rather than manslaughter; (2) the trial court erred in imposing and staying rather than striking various sentence enhancements; (3) the court erred in failing to award presentence custody credits for time appellant -- who attempted suicide after shooting his two victims -- spent in the hospital prior to his arrest; (4) the court erred in failing to award an extra day of credit for 2004, a leap year; and (5) the abstract of judgment contains numerous errors, including failure to award any presentence custody credits and miscalculation of the sentence. Respondent concedes the latter two points. We conclude first, that although the prosecutor misstated the law in closing argument, the court correctly handled the situation by admonishing the jury to follow the instructions rather than counsel's argument. Second, the enhancement imposed under Penal Code section 12022.7, subdivision (e) should have been stricken.1 Third, appellant was not entitled to presentence custody credits prior to his arrest. Accordingly, we reverse in part and remand for the section 12022.7, subdivision (e) enhancement to be stricken, for the extra day to be credited, and for the errors in the abstract of judgment to be corrected.

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Statutory references herein are to the Penal Code.

Section 12022.53, subdivision (b) provides a 10-year sentence enhancement for a person who uses a firearm in the commission of specified felonies. Subdivision (c) provides a 20-year sentence enhancement for a person who discharges a firearm in the commission of one of those same felonies. Subdivision (d) provides a 25-year to life sentence enhancement for a person who, in the commission of one of the specified felonies, "personally and intentionally discharges a firearm and proximately causes great bodily injury." 2

FACTUAL AND PROCEDURAL BACKGROUND I Information Appellant was charged by information with the murder of his mother-in-law, Ai Guo (count one), and the attempted willful, deliberate, premeditated murder of his wife, Jie Xu (count two). With respect to both counts, it was further alleged that appellant personally and intentionally discharged a firearm which caused great bodily injury within the meaning of Penal Code section 12022.53, subdivision (d); that he personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c); and that he personally used a firearm within the meaning of section 12022.53, subdivision (b). With respect to count two, it was alleged that appellant personally inflicted great bodily injury upon Xu under circumstances involving domestic violence within the meaning of section 12022.7, subdivision (e).2

II Verdict and Sentencing Appellant was tried twice. In the first trial, the jury acquitted him of first degree murder on count one, but deadlocked over whether he was guilty of second degree murder or voluntary manslaughter. The jury was also deadlocked on count two, split between attempted murder and attempted voluntary manslaughter.

Section 12022.7, subdivision (e) provides that any person "who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony" shall be punished by an additional and consecutive term of imprisonment of between four and six years.

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At the second trial, the jury found appellant guilty of second degree murder and attempted willful, deliberate, premeditated murder. The second jury also found all the special allegations true. The court sentenced appellant to 72 years to life in prison calculated as follows: For count one (second degree murder) the court sentenced appellant to 15 years to life, plus 25 years to life for the section 12022.53, subdivision (d) enhancement, for a total of 40 years to life. For count two (attempted willful, deliberate, premeditated murder) the court sentenced appellant to a consecutive term of life in prison with the possibility of parole with a mandatory minimum of 7 years, plus 25 years to life for the section 12022.53, subdivision (d) enhancement, for a total of 32 years to life. The court imposed and stayed sentence on the remaining enhancements.

III Evidence at Trial A. Prosecution Evidence According to witnesses who testified for the prosecution at trial, appellant was born in China, where he served in the military and in 1997, married Jie Xu.3 Appellant and Jie came to the United States in 1998. They lived in an apartment in Alhambra and had two children. Jie's parents, Ai Guo and Qing Xu, came from China to live with them in 2000 and 2002 respectively.4 In September 2003, Jie discovered that appellant was having an affair. She said she wanted a divorce, and appellant agreed. Between September and

Because Jie Xu and her father, Qing Xu, who also testified, share a surname, to avoid confusion we refer to them by their first names.
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Guo's name is sometimes spelled "Gao." 4

December 2003, appellant moved in and out of the apartment, staying away for a few days each time. During the times he was at the apartment, he slept in the living room. According to Jie, appellant had an "explosive" temper. In 1999, when Jie was pregnant, he kicked her. Qing sometimes heard appellant and Jie arguing, and once observed an injury on Jie's wrist. In December 2003, during an argument over money, appellant kicked Jie's leg and hit her in the face. He also took one of the guns out of his gun locker, but did not directly threaten her with it.5 Jie called the police, but did not tell them appellant had struck her because she was concerned about getting him in trouble due to his immigration status.6 Jie called the police on two other occasions in December 2003. On the first, appellant had called her from outside the apartment and asked her to come talk to him. Jie felt apprehensive about meeting him alone. Jie called police on the second occasion because appellant had taken Jie's passport and the passport of one of their children. Jia Xiang Wang, appellant's co-worker, testified that on December 24, 2003, appellant asked him for help following someone. Appellant did not say who. Wang, driving his own car, followed appellant to a location in Chinatown where they both parked and waited for approximately three hours. Appellant then told Wang to leave. Police officers later ascertained that the location where appellant and Wang parked that day was one block from Jie's place of employment.

Appellant kept two guns in a small metal cabinet in the bedroom closet. Only he had the key. A police expert in domestic violence explained that victims commonly minimize the violence when speaking to police.
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On December 27, 2003, Jie was out shopping with Guo and the children. Appellant called and told her to come home because he had cooked dinner. When everyone arrived and sat down to eat, appellant poured himself half a glass of Chinese wine, apologized to Jie's parents, and drank some or all of the alcohol. Appellant next apologized to Jie, made a toast to their reconciliation, and drank another glass or half glass of the alcoholic beverage. Jie's parents and the children left the room so that Jie and appellant could be alone. Appellant seemed calm. He did not appear intoxicated. Appellant asked Jie to reconcile, but she refused, saying "[her] heart ha[d] died." She suggested that they give each other some time and space. Appellant had tears in his eyes. Jie left the table and went into her parents' bedroom. Appellant followed. He still seemed calm. Guo, who was in the bedroom at the time, suggested that appellant give Jie some time to think things over.7 Appellant walked into the bedroom he and Jie had shared, and Jie followed. When she got there, appellant was holding a gun in his right hand, behind his back. Jie tried to leave, but appellant blocked her way. Jie saw Guo in the doorway, and yelled at her to call the police. Guo grabbed appellant's left arm and asked him what he was doing. Appellant, still appearing calm, fired the gun at Jie, striking her in the face. He then shot Guo in the head and turned the gun on himself. Seeing Guo and appellant lying on the floor, Jie tried to call 911, but had difficulty communicating with the operator due to her injury. Qing, who did not speak English, went to the apartment of a neighbor, Antoinette Rossi, and persuaded her to call 911. Rossi went to the family's

During this time, Qing was in the bathroom. He overheard appellant and Jie arguing. He heard Guo say "what are you doing?" and then heard three shots, but did not see the crime.

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apartment and saw Jie slumped down with blood running from her head.8 Guo was lying on the floor, not moving. Appellant was on the floor with a gun near his right hand, and a wound in his head. Guo's autopsy showed stipling, which indicates the gun was only a few inches from her face when she was shot. The gun used in the incident required five pounds of pressure to fire.

B. Defense Evidence The defense called a toxicology expert who testified that the alcoholic beverage appellant drank that night was 112 proof, which means it was 56 per cent alcohol. He estimated that appellant's blood alcohol level at the time of the shooting was between .17 and .33. A person with a .33 level would be confused and disoriented and would experience a loss of inhibitions. At any point within that range, the drinker would experience an impact on critical judgment and the ability to perceive and analyze reality. Some drinkers with that level of alcohol in their system would become happy, some would become quiet, and others would become angry. A person with a high tolerance for alcohol might appear normal, but the mental effects would still be present.9

Rossi did not hear any loud voices or arguing prior to the shooting. She had heard appellant arguing with his wife on four or five prior occasions. Jie and Qing testified that appellant was a regular drinker, who had a drink nearly every day after work and could drink several beers with no noticeable effect.
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C. Relevant Jury Instructions The jury was instructed on the burden of proof: "A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and special allegation beyond a reasonable doubt." With respect to the murder and attempted murder charges, the jury was instructed: "If you conclude that the defendant committed the acts, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of attempted murder or attempted voluntary manslaughter. The People must still prove each element of every charge beyond a reasonable doubt." The following instruction was also given: "The defendant is charged in Count 1 with murder. To prove that the defendant is guilty of this crime, the People must prove that: Number 1, the defendant committed an act that caused the death of another person; and number 2[,] when the defendant acted, he had a state of mind called malice aforethought; and number 3, he killed without lawful excuse." The court went on to explain that there are two kinds of malice aforethought, express and implied: "`The defendant acted with express malice if he unlawfully intended to kill. [

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