People v. Thao CA3

Filed 3/25/16 P. v. Thao CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C078688

Plaintiff and Respondent, (Super. Ct. No. CM042006)

v.

PAUL HUE THAO,

Defendant and Appellant.

Convicted of being an accessory after the fact, following a gang-related shooting, defendant Paul Hue Thao contends on appeal there was insufficient evidence to support his conviction because the false statements he made about the shooting to police were to protect himself, not to aid others. He further contends the trial court erred in not instructing the jury on the elements of the underlying felony or felonies to which he was an alleged accessory and in not instructing the jurors that they had to unanimously agree on which of two perpetrators he aided.

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We conclude the evidence was sufficient to support defendant’s conviction, any error in not instructing the jury on the elements of the underlying felony or felonies was harmless beyond a reasonable doubt, and the jurors were instructed that they had to unanimously agree on which of two perpetrators defendant aided. Accordingly, we affirm. FACTUAL AND PROCEDURAL BACKGROUND On October 4, 2014, gunfire was exchanged between the occupants of a red Honda Civic and the occupants of a white Toyota Tacoma pickup on a street in Chico. Eventually, the Honda collided with the Tacoma, which flipped on its side. The occupants of the Honda started walking toward a nearby K-Mart store. A responding police officer saw five men walking through the parking lot. The men picked up their pace as the officer approached. When the officer ordered them to stop and get on the ground, two of them did, but the other three entered the store. One of the two who obeyed the officer’s directive was Boy Bird Yang. Another responding officer eventually stopped three men he saw leaving the store through the garden center doors. One of these three was Zeng Her and one was defendant. Police found six spent shell casings inside the Honda. An employee at the K-Mart store found a handgun on a shelf just inside the front entrance of the store, hidden underneath some clothing. The ammunition found in the gun was the same as the shell casings found in the Honda. In the late evening or early morning hours following the incident, defendant, who was in custody, told Chico Police Detective Joel Schmid that he had been seated in the rear passenger seat of the Honda. Defendant told the detective he heard shots from a distance but did not hear any close shots, did not see any firearms inside the Honda, and was not aware of anyone shooting from inside the Honda. He also told the detective he did not know how the Honda hit the Tacoma.