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Killer's conviction reduced on appeal

Jan 03 2012

The first-degree murder conviction against a self described Red Scorpion gang member said to be the mastermind behind a View Street shooting was reduced to second-degree murder by the B.C. Court of Appeal.

That means Somphavanh Chanthabouala will be re-sentenced on the lesser conviction, something his lawyer Hovan Patey hopes will happen soon in the new year. No date has yet been set.

In a recently released decision, the court of appeal ruled unanimously that the trial judge did not properly instruct the jury on the effect of alcohol on the 25-year-old man's ability to plan and deliberate the murder, essential elements for a first-degree murder conviction.

A B.C. Supreme Court jury found Chanthabouala guilty of first-degree murder in April of 2010. Although Chanthabouala didn't pull the trigger, the Crown argued that he orchestrated the July 19, 2008 shooting outside the Red Jacket nightclub on View Street that left one man dead and two injured.

Philbert Truong, 20, died after being shot through the chest. Chanthabouala was also found guilty of the attempted murders of Thuan Le and Robin Lepard.

At trial, the jury was told that Chanthabouala had his friend Mark Arrieta do the killing. At the time, Arrieta was 16. Both were said at trial to be members of the Red Scorpions, a Lower Mainland gang that police said was setting down roots in the Greater Victoria area.

Truong was an innocent victim caught in the middle of a petty dispute between his friend Le and Chanthabouala. Inside the bar, Le was said to have accidentally stepped on Chanthabouala's foot. Chanthabouala's pride was hurt and he wanted Le, and anyone in his way, shot and killed, the jury heard.

Outside the bar, there was a verbal altercation and then Chanthabouala made some calls on a cellphone. Soon after, Arrieta and two other men arrived in a taxi. A witness said Chanthabouala pointed out Le's group to Arrieta and yelled, "Shoot him, shoot him" or "shoot 'em, shoot 'em."

Truong stepped in front of Le, saying, "If you're going to shoot him, you'll have to shoot through me first." Arrieta started shooting, hitting Truong directly in the chest, said the court of appeal judgment. Le was hit in the upper torso and seriously injured and Lepard was hit in the shoulder.

It was only 26 seconds from the time Arrieta was first seen on a security camera after he arrived at the scene and the shooting, the appeal court said.

At trial, Chanthabouala testified he called his friends to help because he thought there would be a physical fight. He said he didn't know Arrieta would bring a gun.

At the appeal, the Crown agreed the trial judge did not instruct the jury on the effect of alcohol in relation to planning and deliberation, but said there was no need to because there was "no air of reality" to the intoxication defence.

However, justices Elizabeth Bennett, Mary Saunders and Pamela Kirkpatrick said the instruction should have been given to the jury. Chanthabouala testified to drinking 11 to 13 drinks over five hours.

"The law is clear that it is incumbent on the trial judge to instruct the jury that drunkenness may raise a reasonable doubt about planning and deliberation when the evidence supports such a instruction," the appeal court said.

Chanthabouala was given a life sentence with no chance of parole for 25 years, which is automatic with a first-degree murder conviction. Second-degree murder also carries a mandatory life sentence, but parole eligibility can be set anywhere between 10 and 25 years.

Chanthabouala was also sentenced to a concurrent 18 years for the Le attempted murder and 10 years for the Lepard conviction. Those convictions or sentences were not changed by the appeal court.

kwestad@timescolonist.com