People v. Thao CA3

Filed 6/15/16 P. v. Thao CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C079314

Plaintiff and Respondent, (Super. Ct. No. 12F00705)

v.

XOU THAO,

Defendant and Appellant.

A jury found defendant Xou Thao guilty of one count of willful and malicious discharge of a firearm at an occupied vehicle (Pen. Code, § 246—count one) 1 and two counts of assault with a firearm (§ 245, subd. (a)(2)—counts two and three). The jury also found true the gang enhancement allegations (§ 186.22, subd. (b)). The trial court sentenced defendant to an indeterminate term of 15 years to life in prison on count one,

1 Undesignated statutory references are to the Penal Code.

1

plus a determinate term of 6 years on count two and two years on count three, stayed pursuant to section 654. On appeal, defendant contends there was insufficient evidence to support the gang enhancements. We disagree and shall affirm the judgment. I. BACKGROUND In January 2012, Jakob Stinson and Dennis Faria were delivering newspapers in the Meadowview area of Sacramento around 4:00 a.m. Stinson was driving and Faria was riding in the passenger seat. To speed up the delivery of papers, Faria would roll his window down, sit on the passenger side door, and hold onto the car by putting his hands through the open sunroof. While near the area of Detroit Boulevard and Meadowview Road, Faria saw a black Lexus IS 300 with blue headlights and yellow fog lights “cruising” around the neighborhood. When Faria first saw the Lexus, it was driving at a normal speed. However, the next time he saw the vehicle, it was driving very slowly towards him. The Lexus pulled up next to Faria and Stinson’s vehicle and stopped. The passenger in the Lexus then rolled down his window, climbed onto the door, and fired about six shots at Faria. Faria, who was sitting on the passenger side door, ducked while Stinson sped away. The Lexus chased after Faria and Stinson but did not catch them. Stinson called 911 and reported the shooting. Sacramento Police Officer John Sallee met with Faria and Stinson and took them to the place where the shooting occurred on the 7600 block of Detroit Boulevard, which is known as the “turf” of the Junior Criminal Crips (JCC) gang. Faria provided a description of the Lexus, the driver, and the passenger. Faria described the driver as “a male Asian adult in his twenties wearing a black shirt with a . . . medium build.” Faria described the passenger as “a male Asian adult in his twenties” wearing “a black puffy jacket” with a slightly bigger build than the driver. Faria also told Officer Sallee that he believed the gun used by the shooter was “a small revolver.”