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In Self Defense Claim, Is Gang Evidence Admissible?

Summary in 50 Words or Less: A self-defense and heat of passion jury instruction may be given in the context for the jury to consider if defendant’s gang membership allowed defendant to regard self-defense as necessary.  We think this is a terrible instruction, particularly since membership in a criminal street gang, a crime in and of itself, should not give a defendant the right to claim self defense or a heat of passion murder and that a jury will recognize this irony and, consequently, never apply it.
The Tongan Crips and the Norteños have been rivals in Sacramento for many years.  In the murder trial of Tevita Tkoni Kaihea, the jury heard that from 2014 to 2018, there was basically a state of war between the two gangs.  In 2013, Norteños killed the brother of Mr. Kaihea.  Then in 2014, two Norteños shot at a group of Tongan Crips.  Then in 2015, Tongan Crips retaliated and killed two Norteños.

Things had seemed to settle down until Mr. Kaihea and codefendant Charlie Hola went on a three-hour crime spree in 2018.  The spree began when Kaihea and Hola stole a van and drove it to a fast food restaurant, where they robbed two people at gunpoint.

About a half-hour later, Kaihea and Hola drove by the house of T.L., who, seeing the van, became suspicious that the van’s occupants had been involved in a robbery the previous night, when some of T.L.’s marijuana had been taken.  T.L. got his gun and drove after the van.  When it came to a stop, he started photographing the van.  Kaihea stepped out of the passenger side of the van and shot T.L. six or seven times.  One round hit him in the face.  He survived, however.

About an hour later, Kaihea and Hola arrived at Sacramento City College, where surveillance cameras would capture the murder.  In the video, which was played for the jury, the victim, R.G., and a companion R.R., can be seen walking down the street.  Both were Norteños gang members and R.G. was wearing a red belt, a Norteño color.

R.G. and R.R. crossed paths with Kaihea and Hola, before exchanging looks and squaring off.  As Kaihea approached the two Norteños, R.G. dropped his backpack.  Hola came after R.G., who punched Hola.  Hola then delivered multiple blows to R.G., but also to R.R., who joined the fight.  Hola then took out a knife and stabbed R.R., including in his chest.

Kaihea then drew a gun and shot at R.G.  The shot missed and R.G. and R.R. started to run away.  Kaihea then shot R.G., who fell to the ground.  Kaihea then shot him a few more times, turned around and jogged away with Hola.  In the video, one can then see Kaihea brush his hair back.  A man working nearby was told by Kaihea, “you didn’t see nothing.  R.G. died from multiple gunshot wounds to his back.

Kaihea was tried separately from Hola.  At Kaihea’s trial for first-degree murder, the jury heard that police had many prior contacts with Kaihea.  In 2014, they found Tongan Crip graffiti in his bedroom and that same year, he admitted to being in the Tongan Crips. 

After his arrest in this case, he was seen making a Crip sign as he passed a jail pod where Blood gang members were held and he came to court with shoes marked with Tongan Crip gang graffiti.  He also had TC tattooed under his eye. 

The jury found Kaihea guilty of first-degree murder (Penal Code § 187(a) and found true that it was committed to benefit a criminal street gang (Penal Code § 186.22(b)(1)) and that Kaihea personally discharged a firearm causing death (Penal Code § 12022.53(d)).  He was also convicted of attempted murder.

The trial court judge imposed a sentence of 111 years and four months to life, calculated on the following: 25 years to life for the first-degree murder along with a 25 year firearm enhancement and a 10 year gang enhancement; and seven years to life for the attempted murder, along with a 25 year firearm enhancement; five years for one robbery count, along with a ten-year firearm enhancement; one year (one-third the mid-term) for the other robbery count along with a three year, four month enhancement (one-third the mid-term).  He was also given a time-served sentence for being a felon in possession of a firearm and the taking a vehicle count (Vehicle Code § 10851), not grand theft auto.

Kaihea appealed on many grounds, but this article will just consider three grounds: 1) the admission of certain gang evidence was cumulative and highly prejudicial; 2) the court failed to instruct the jury on whether defendant acted in self-defense and heat of passion in response to a gang challenge of “where you from?” and 3) that the imposition of the gang enhancement to his murder conviction was error.

The Third Appellate District Court agreed that the introduction of certain gang-related evidence was in error and should have been excluded.  However, it found the error was harmless.

The appellate court then rejected Kaihea’s contention that he was entitled to a self-defense or heat of passion jury instruction based on a gang challenge, citing to CALCRIM 1403, which the appellate court characterized as a limiting instruction.  It tells the jury it “may consider evidence of gang activity only for the purpose of whether defendant actually believed in the need to defend himself or that he acted in the heat of passion.”  So the jury was instructed as Kaihea claimed it was not.

Lastly, the appellate court agreed that the ten-year gang enhancement was improperly added to the first-degree murder sentence, citing to People v. Lopez (2005) 34 Cal.4th 1002, 1004 (the ten-year enhancement under 186.22(b)(1)(C) does not apply to a violent felony punishable by life imprisonment).

We bring this sobering summary to the reader’s attention to highlight that self-defense to a murder charge is not a separate jury instruction in the gang context.  Rather, it is an issue that the jury may consider in the overall context of all crimes charged.

The citation for the Third Appellate District Court ruling discussed above is People v. Tevita Tkoni Kaihea (3rd App. Dist., 2021) 70 Cal. App. 5th 257, 285 Cal. Rptr. 3d 334.

For more information about defenses in gang cases, including heat of passion, please click on the following articles:
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