P. v. Vang

1
Filed 11/6/07 P. v. Vang 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,
Plaintiff and Respondent,
v.
BEE VANG,
Defendant and Appellant.
C052414
(Super. Ct. Nos.
CM023755, CM019853)
In case No. CM023755, a jury convicted defendant Bee Vang
of assault with a semiautomatic firearm (Pen. Code, § 245, subd.
(b)) and unlawful driving of or taking a vehicle (Veh. Code,
§ 10851, subd. (a)). The court sentenced defendant to state
prison for an aggregate term of nine years eight months, that
is, the upper term of nine years for the assault offense and a
consecutive one-third the midterm or eight months for the
unlawful driving or taking offense. In case No. CM019853, the
trial court found defendant in violation of probation and
imposed a consecutive one-third the midterm or eight months for

-- 1 of 17 --

2
possession of a controlled substance. The trial court thus
assessed an unstayed prison term of 10 years four months.
Defendant appeals in both cases. In case No. CM023755, he
contends (1) the trial court prejudicially erred in admitting
into evidence a tainted in-court identification and (2) the
trial court’s imposition of the upper term violated Blakely v.
Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and
Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]
(Apprendi). In case No. CM019853, defendant contends that the
trial court erroneously imposed additional fees and fines upon
revocation of probation. We affirm the judgment.
F ACTS AND P ROCEEDINGS
About 6:00 p.m. on September 7, 2005, Anthony Seiler drove
past Central School. Seiler had two passengers. Sixteen-year-
old Dustin W. sat in the front passenger seat and 16-year-old
Cassandra D. sat in the back seat behind Dustin. Two Asian
males in a blue SUV drove by in the opposite direction, giving
Seiler a “dirty” look. Seiler made a U-turn and caught up with
the blue SUV which pulled over. Seiler stopped alongside the
SUV and argued with the driver of the SUV. The driver told
Seiler to “watch [his] back.” Seiler made a U-turn and drove
away but the SUV followed. Seiler pulled over and reached for
something underneath his seat. The Asian male in the passenger
seat of the SUV had put on a red handkerchief over his nose and
mouth. Dustin and Cassandra got down on the floorboards. As
the SUV drove slowly past Seiler’s car, the passenger fired a

-- 2 of 17 --

3
380 semiautomatic firearm four times at Seiler’s car. Two
bullets went through the driver’s door, one of which hit just
behind the driver’s door, one bullet hit the front grill and one
bullet hit the rear seat. One of the four bullets entered
Seiler’s left arm and lodged in his chest. Dustin and Cassandra
fled on foot. Seiler drove himself to the hospital where he
passed out in the parking lot.
At 7:30 p.m., law enforcement officers arrived at the
location of the shooting and continued to the hospital where
Seiler told them that he had been the victim of a drive-by
shooting. He said that two Asian males were in a blue SUV and
that the passenger shot him.
Dustin and Cassandra arrived at the hospital later in the
evening. They told officers that they could identify neither
the car nor the occupants.
About 10:00 p.m., defendant asked to borrow a car, a black
Honda Civic, belonging to his sister, Mai Vang. She refused.
He became angry, threatened her, broke down her bedroom door,
and demanded the keys to the car. She tossed the keys to him.
The next day when interviewed by an officer, Seiler said he
thought the driver was someone he knew from school.
Just days after the shooting while visiting a friend,
Cassandra saw defendant washing a black Honda Civic across the
street. Several days after the shooting while walking around
the Gold Country Casino, Cassandra and Dustin saw defendant.
Based on defendant’s hairstyle and eyes, Cassandra recognized
defendant as the driver of the blue SUV. When she visited her

-- 3 of 17 --

4
friend sometime later, she saw defendant again with the black
Honda Civic.
When interviewed by the police on September 13, 2005,
Dustin admitted that he had seen the occupants of the blue SUV.
He did not recall telling an officer that he recognized the
driver. At trial, Dustin claimed defendant was someone he knew
while living in a group home and that they had had friends in
common.
When interviewed by the police on September 14, 2005,
Cassandra described the driver of the SUV as an Asian male in
his 20’s, 6 feet tall, thin build, with bags under his eyes and
black hair worn in a ponytail just past his shoulders. She
stated that “all Asians look alike,” “but not this one.” She
had seen defendant standing washing the car but it did not
change her opinion of how tall she thought defendant was the day
of the shooting.
At the hospital on September 15, 2005, Seiler identified
defendant from a photographic lineup as the driver of the SUV,
stating that he was “dead on the driver right there.”
At trial, Seiler claimed defendant had nothing to do with
the shooting incident and that the SUV had two Hispanic males.
He did not recognize the signature on the photographic lineup as
his and did not remember saying what was claimed he said when he
identified defendant’s photo. Seiler admitted that he was in
jail and knew what happened to a “snitch.” After Seiler
testified, he walked past defendant and stated, “I love you
dog.”

-- 4 of 17 --

5
At trial, both Dustin and Cassandra made in-court
identifications of defendant as the driver of the blue SUV.
Cassandra thought defendant looked the same as on the day of the
shooting.
Cassandra admitted that she had lied to officers at the
hospital the evening of the shooting because she “wanted
everything to go away.” Dustin had told Cassandra they should
not report the incident because Dustin did not want to make
“enemies” and did not believe in “bringing cops into stuff.”
An identification expert testified on defendant’s behalf
about the unreliability of eyewitness identifications.
D ISCUSSION
I
Cassandra’s In-court Identification
Defendant first contends that Cassandra’s in-court
identification was tainted by an unduly suggestive photographic
lineup.
Prior to trial, defendant moved in limine to exclude
evidence of Seiler, Dustin and Cassandra’s photographic lineup
identification of defendant. Defendant attached to his motion a
copy of a photographic lineup that his motion papers suggested
was shown to Seiler, Cassandra, and Dustin which line-up
consists of photos of six males all who appear to be Asian, one
with very short straight hair (No. 1), three with straight hair
to about their ears (Nos. 4, 5, 6), one with wavy hair to his

-- 5 of 17 --

6
shoulders (No. 3) and one with straight hair below his shoulders
(No. 2).
Defendant claimed the following. When Seiler was first
interviewed at the hospital, he stated that he had been shot by
“‘two Asians’” and later said it was the passenger who shot him.
At the scene, officers interviewed an eyewitness who saw
two “Hispanic” males in the blue SUV.
When first interviewed, Dustin claimed he did not know what
the occupants looked like. Cassandra said the same. The day
after the shooting, Seiler told police that he “‘recognized the
driver as someone he may have went [sic] to school with.’”
On September 13, 2005, Dustin told police that he had seen
both the driver and passenger before the shooting and when the
shooting started, he jumped out of the car and hid; he
recognized the driver but did not know his name.
Defendant further claimed that on September 14, 2005,
Cassandra “told the police she believed the driver of the other
vehicle to be a member of the Norteno street gang,” “an Asian
male, approximately 22 years old” with “‘baggy eyes [and] black
hair just past his shoulders[,] . . . wavy like it had been in a
braid’” and that “‘all Asians look alike.’”
Defendant argued the photographic lineup was suggestive
because, since defendant was taken into custody at 10:24 a.m. on
September 15, 2005, a physical lineup was feasible at or about
the time the police conducted the photo line-ups. He further
argued that none of the people in the photo lineup other than

-- 6 of 17 --

7
defendant had the hair length described by Cassandra, that is,
“‘just past his shoulders.’”
Defendant asserted that on September 14, 2005, Cassandra
identified defendant’s photo as the driver of the blue SUV; that
on September 15, 2005, in ICU at the hospital, Seiler identified
defendant’s photo, saying “‘That is dead on the driver right
there’”; and that on September 15, 2005, Dustin identified
defendant’s photo, saying “That is the driver. I am 100% sure
that (Vang) was driving the vehicle when Tony (Seiler) was
shot.”
At a hearing outside the jury’s presence, the parties
stipulated that jail staff provided photographs, there was a
chain of custody and that the photos were shown one at a time in
a random sequence to each witness. Prior to showing the lineup
to Seiler and Dustin, Officer John Ryan read a standard
admonishment.
The prosecutor opposed the motion, arguing that the length
of hair was a changeable feature, that each witness had been
advised prior to viewing the photographs that “head and facial
hair is subject to change” and that all the photographs showed
males of similar race, age and build. The prosecutor noted that
Cassandra had seen defendant across the street from her friend’s
house prior to preparation of the photographic lineup.
The court concluded that Cassandra’s photographic lineup
identification would be excluded because she had described the
driver as an Asian male with wavy black hair, just past his
shoulders, prior to preparation of the lineup and that there was

-- 7 of 17 --

8
only one photo in the lineup, defendant’s, that matched her
description. The court determined that the lineup was
“inherently unfair so as to create a substantial likelihood of
irreparable misidentification” and violated defendant’s due
process rights. The court initially granted defense counsel’s
request to exclude Cassandra’s in-court identification because
Cassandra was unable to describe the car or occupants when she
was first interviewed. The court concluded that Cassandra could
describe the driver and testify whether the person she saw on
three separate occasions thereafter appeared to be the driver.
The court further decided it would not exclude evidence of
Seiler’s or Dustin’s identification from the photographic line-
up, apparently because the two of them knew defendant prior to
the shooting.
After the trial court’s ruling, defense counsel and the
prosecutor informed the court that the photo lineup shown to
Cassandra, which the court had not seen, was different than that
shown to Seiler and Dustin. Defense counsel stated that “the
Court has made rulings such that I don’t need to deal with the
second line-up . . . .” The court stated, “All right.”
Later during trial, the prosecution requested that the
court reconsider its rulings. The prosecution asserted the
lineup shown to Cassandra was different from the lineup shown to
Seiler and Dustin, although the prosecution could not say how
different because one of the six pictures had been lost.
Officer Robertson showed the lineup to Cassandra. The record on

-- 8 of 17 --

9
appeal does not include the photographic lineup shown to
Cassandra.
The court reaffirmed its ruling that Cassandra’s
photographic lineup identification was excluded but reversed its
ruling on her in-court identification, finding that she had
“personal contact with the defendant” and that the photo lineup
did not taint her in-court identification.
We exercise our independent judgment in reviewing a trial
court’s ruling on the identification procedure. (People v.
Kennedy (2005) 36 Cal.4th 595, 608-609.) We first consider
“whether the identification procedure was unduly suggestive and
unnecessary.” (People v. Cunningham (2001) 25 Cal.4th 926,
989.) In determining whether the procedure was unduly
suggestive, “‘[t]he question is whether anything caused
defendant to “stand out” from the others in a way that would
suggest the witness should select him.’” (Id. at p. 990.) If
the lineup was unduly suggestive and unnecessary, then we
consider “whether the identification itself was nevertheless
reliable under the totality of the circumstances . . . .” (Id.
at p. 989.) If unreliable under this test, we reverse only if
there is a “‘substantial likelihood of irreparable
misidentification.’” (Id. at p. 990.)
The trial court excluded Cassandra’s photographic lineup
identification of defendant. The record on appeal does not
include the photographic lineup shown to Cassandra. The only
photographic lineup in the record is that shown to Seiler and
Dustin. Without the photographic lineup shown to Cassandra, the

-- 9 of 17 --

10
trial court had no evidence upon which to make a ruling that the
lineup was unduly suggestive.
Even so, and assuming the lineup shown to Cassandra was
unduly suggestive, Cassandra’s in-court identification was
nevertheless reliable. Prior to an officer showing her a
photographic lineup, she described the driver as an Asian male
in his 20’s with black hair just past his shoulders. Cassandra
had the opportunity to see the driver prior to the shooting.
She saw and heard the driver when he was arguing with Seiler.
She saw defendant just days later across the street and at the
casino and recognized him as the driver. This reflects that she
was paying attention at the time of the offense. She made her
identification about a week after the shooting. At trial, she
testified that defendant looked the same as the day of the
shooting.
Under the totality of the circumstances, Cassandra’s in-
court identification was reliable (Cunningham, supra, 25 Cal.4th
at p. 989). There was no substantial likelihood that she
misidentified defendant as the driver. (Manson v. Brathwaite
(1977) 432 U.S. 98, 106-114 [53 L.Ed.2d 140, 149-154].) In
court, she identified defendant and was certain that defendant
had driven the blue SUV and had been the person she had seen
across the street and at the casino. The evidence supports the
conclusion that Cassandra’s in-court identification was based
upon her independent observation and recollection of the events
and not upon the photographic lineup.

-- 10 of 17 --

11
In any event, defendant has failed to demonstrate
prejudice. Cassandra’s in-court identification was not the only
evidence establishing that defendant drove the car. Seiler
identified defendant from the photographic lineup and stated
that the photo was “dead on” as the driver. At trial, Seiler
recanted his identification but he had been convicted of an
offense, was serving a term in jail and did not want to be known
as a snitch. Even though Dustin’s in-court identification was
not as certain as Cassandra’s, Dustin recognized defendant as
someone he knew from group home and friends. Defendant
presented no evidence of an alibi. The jury had the benefit of
the defense expert’s testimony on eyewitness identifications as
well as the court’s instructions on factors to consider in
evaluating eyewitness testimony. Any error in admitting
Cassandra’s in-court identification of defendant was harmless
beyond a reasonable doubt. (Chapman v. California (1967) 386
U.S. 18, 24 [17 L.Ed.2d 705, 710-711]; People v. Martin (1970) 2
Cal.3d 822, 831.)
II
The Upper Term Sentence
In sentencing defendant to state prison for the upper term
of nine years for assault with a semiautomatic firearm, the
court cited in aggravation the victim’s vulnerability and the
fact that defendant was on felony probation at the time of the
offense. In imposing a consecutive sentence for the unlawful
driving or taking offense, the court cited the fact that the
offense involved a high degree of violence.

-- 11 of 17 --

12
Defendant contends that the trial court’s imposition of the
upper term violated Blakely, supra, 542 U.S. 296 [159 L.Ed.2d
403] and Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435].
The Attorney General claims defendant’s Blakely claim is
forfeited. We disagree. When defendant was sentenced on May
11, 2006, the trial court was obligated to follow People v.
Black (2005) 35 Cal.4th 1238 (Black I). People v. Sandoval
(2007) 41 Cal.4th 825 held that a defendant who failed to object
at sentencing which occurred after Black I and prior to
Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856]
(Cunningham) did not forfeit a Blakely issue on appeal because
it would have been futile to object. (Sandoval, supra, at p.
837, fn. 4.) We thus reach the merits.
The Attorney General claims the recidivism exception
applies in that the court cited the fact that defendant was on
felony probation when he committed the offense. Further, the
Attorney General claims that the jury’s finding that defendant
aided and abetted the assault offense, with undisputed evidence
that Seiler was shot and hospitalized, supported the court’s
finding in aggravation that the crime involved violence which it
cited in imposing a consecutive sentence. The Attorney General
asserts in the alternative that any error was harmless beyond a
reasonable doubt in that the evidence was undisputed that the
assault offense involved shooting four times at a car with three
occupants resulting in injury to one and thus involved great
violence and a threat of great bodily harm.

-- 12 of 17 --

13
Applying the Sixth Amendment to the United States
Constitution, the United States Supreme Court held in Apprendi,
supra, 530 U.S. 466 [147 L.Ed.2d 435] that other than the fact
of a prior conviction, any fact that increases the penalty for a
crime beyond the statutory maximum must be tried to a jury and
proved beyond a reasonable doubt. (Id. at p. 490 [147 L.Ed.2d
at p. 455].) For this purpose, the statutory maximum is the
maximum sentence that a court could impose based solely on facts
reflected by a jury’s verdict or admitted by the defendant.
Thus, when a sentencing court’s authority to impose an enhanced
sentence depends upon additional fact findings, there is a right
to a jury trial and proof beyond a reasonable doubt on the
additional facts. (Blakely, supra, 542 U.S. at pp. 303-304 [159
L.Ed.2d at pp. 413-414].) Cunningham recently reaffirmed its
holdings in Blakely and Apprendi, rejecting the contrary holding
in Black I, supra, 35 Cal.4th 1238. (Cunningham, supra, 549
U.S. at p. ___ [166 L.Ed.2d at pp. 868, 873, 876].)
People v. Black (2007) 41 Cal.4th 799 (Black II) held that
“imposition of the upper term does not infringe upon the
defendant’s constitutional right to jury trial so long as one
legally sufficient aggravating circumstance has been found to
exist by the jury, has been admitted by the defendant, or is
justified based upon the defendant’s record of prior
convictions.” (Id. at p. 816.) In Black II, a jury convicted
the defendant of continuous sexual abuse of a child and two
counts of lewd and lascivious conduct with a child. In
connection with the continuous sexual abuse count, the jury

-- 13 of 17 --

14
found true two allegations relevant to probation or a suspended
sentence, that is, the offense was committed with force,
violence, duress, menace and fear of injury and that the
defendant had engaged in substantial sexual conduct. (Id. at
pp. 806-807.) In imposing the upper term for the continuous
abuse offense, the trial court cited the nature, seriousness and
circumstances of the offense, noting the use of force on many
occasions, victim vulnerability, abuse of a position of trust
and the infliction of emotional and physical harm. (Id. at p.
807.) “The trial court stated that it considered not only the
circumstances of the crime but also the other aggravating
circumstances set out in the district attorney’s sentencing
brief” which included the factor that defendant’s prior
convictions were numerous and increasingly serious. The
probation report set forth defendant’s criminal history. (Id.
at p. 818.) Black II concluded that the “defendant’s
constitutional right to a jury trial was not violated by the
trial court’s imposition of the upper term sentence for his
conviction of continuous sexual abuse” because “the ‘statutory
maximum’ sentence to which defendant was exposed by the jury’s
verdict was the upper term. . . .” (Id. at p. 816.) The trial
court’s citation of the nature of the offense, specifically
noting the use of force, was supported by the jury’s probation
ineligibility finding (force, violence, duress, menace, and fear
of injury) and rendered the defendant eligible for the upper
term for the continuous sexual abuse offense. (Id. at pp. 816-
818.) Black II also concluded that the trial court’s reliance

-- 14 of 17 --

15
upon the defendant’s criminal history by reference to the
prosecutor’s sentencing brief in imposing sentence for the
continuous sexual abuse offense was an additional aggravating
factor which rendered the defendant eligible for the upper term.
(Id. at pp. 818-820.)
Here, although the trial court erred in considering the
fact that the victim was particularly vulnerable (Cunningham,
supra, 549 U.S. ___ [166 L.Ed.2d 856]), defendant was eligible
for the upper term based on the trial court’s finding that
defendant was on probation at the time of the offense.
Rule 4.421(b)(4) sets forth as a factor in aggravation of
sentence that “defendant was on probation or parole when the
crime was committed.” (Cal. Rules of Court, rule 4.421(b)(4).)
The trial court cited defendant’s probationary status at the
time of the offense which qualifies as a recidivism factor. At
sentencing, the trial court had before it case Nos. CM023755 and
CM019853. In the latter case, defendant had been convicted of
felony possession of a controlled substance and had been granted
probation. He was on probation when he committed the offenses
in case No. CM023755. Black II, supra, 41 Cal.4th at pages 818
to 820 determined that the “fact of a prior conviction” (id. at
p. 818) broadly construed encompasses a defendant’s criminal
history as reflected in records of the prior convictions. There
was no Cunningham error.

-- 15 of 17 --

16
III
Fees and Fines
Finally, defendant challenges the trial court’s imposition
of additional fees and fines upon revocation of probation in
case No. CM019853. We find no error.
We note that the Attorney General incorrectly states that
defendant did not file a notice of appeal in case No. CM019853.
Defendant filed separate notices of appeal in case Nos. CM023755
and CM019853.
In 2004, in case No. CM019853, the trial court granted
probation and imposed, inter alia, a $200 restitution fine, a
$170 criminal laboratory analysis fee plus assessments, a $510
drug program fee plus assessments and a $20 court security fee.
In sentencing defendant to prison, the trial court imposed these
same fees and fines.
Citing People v. Chambers (1998) 65 Cal.App.4th 819,
defendant contends that the first set of fees and fines survived
revocation of probation and that a second set of fees and fines
were improperly imposed. This is incorrect.
In case No. CM019853 the trial court simply reimposed the
same fees and fines imposed originally. The additional fees and
fines reflected in the abstracts of judgment were imposed in
case No. CM023755 even though page three of the abstract of
judgment misidentifies the case as No. CM023775. There was no
legal error.

-- 16 of 17 --

17
D ISPOSITION
The judgment is affirmed.
HULL , J.
We concur:
SIMS , Acting P.J.
BUTZ , J.

-- 17 of 17 --