People v. Thao CA3

Filed 6/30/23 P. v. Thao CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C094582

Plaintiff and Respondent, (Super. Ct. No. 18FE007345)

v.

TONY THAO,

Defendant and Appellant.

A jury found defendant Tony Thao guilty of three counts of attempted premeditated murder and one count of shooting at an occupied motor vehicle with firearm enhancements. Defendant was sentenced to an aggregate term of 96 years to life. On appeal, defendant argues the evidence was insufficient to establish that he was the gunman. He further contends the People improperly shifted the burden of proof to defendant by pointing out during closing statements defendant’s failure to call logical witnesses. Finding no error, we affirm.

1

BACKGROUND1 On the night of March 28, 2018, L.S., N.S., and Edwin C. met Manuel O. at the Mix Downtown (hereafter, the Mix), a nightclub in Sacramento. L.S. recognized a woman there named Molly V.,2 who had previously taken N.S.’s gold necklace. L.S. and Manuel confronted Molly, and an altercation ensued as they attempted to take Molly’s phone. Security guards broke up the skirmish and escorted Molly away. Shortly after, L.S. saw Molly outside using her phone. L.S., N.S., and Edwin eventually left the Mix and got into L.S.’s borrowed car. L.S. sat in the driver’s seat, N.S. sat in the passenger seat, and Edwin sat in the backseat behind the driver. Immediately after entering the car, a man approached the vehicle and confronted L.S., asking, “Why you messing with my girl?” After exchanging words, the man stepped several feet back, drew a Glock handgun, and fired nine or 10 shots into the vehicle. L.S. was shot in the chest and shoulder and N.S. was hit in his thigh. Edwin, who was not hit, called 911 at 1:37 a.m. on March 29, 2018. L.S. described the gunman to law enforcement as an Asian male, five feet two inches in height wearing dark clothing with a dark hat. He also explained that he believed the shooter was associated with Molly. L.S. had previously met defendant and believed defendant was either Molly’s boyfriend or husband. Though L.S. did not recognize defendant at the time of the incident, L.S. later identified the shooter as defendant from photos on Molly’s social media. On the 911 call, Edwin described the