People v. Her

Opinion

ROBIE, J.

—Convicted of murder and attempted murder, defendant Por Ye Her appeals, contending the trial court erred in instructing the jury on voluntary manslaughter and voluntary attempted manslaughter and his trial attorney was ineffective in failing to object to certain evidence and argument. Finding no prejudicial error or ineffective assistance of counsel, we will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On an evening in March 2003, defendant and his brother, Chang Her, were at a dance club on Fruitridge Road when Chang got into an argument outside the club with Lou Saephan. The argument ended without a fight, but afterwards Chang and defendant were both very upset. A friend of Saephan’s named Keng Thao came out of the club and insisted on talking to the Her brothers to prevent a fight. Defendant pushed Thao in the face, and Thao fell over a chair and onto the ground. Chang and defendant began to leave, when two other brothers, Sua and Chue Moua—one of whom was Thao’s best friend—came out of the club. Chue asked Chang, “Do you want a piece of me?” and hit Chang in the face. Sua then went after defendant.

Two men pulled Sua and defendant apart, then turned to help break up the fight between Chang and Chue, when there was a gunshot. This shot struck Sua in the left temple. Defendant then approached Chue, pointed a gun at his head, and shot him. Chue suffered a gunshot wound through his face. Defendant then pursued Thao and, after saying, “You want to talk shit to me?” shot him in the back. Defendant then fled.

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Thao died as a result of internal injuries from the bullet that entered his back.

Defendant was charged with one count of murder and two counts of attempted murder with related firearm enhancements. In addition to the charged crimes, the jury was instructed on the lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter, as well as self-defense and defense of another.

The jury found defendant guilty of all three offenses as charged and found the enhancement allegations true. The trial court sentenced him to a term of nine years four months, plus 100 years to life, in prison.