A judge found there is enough evidence to send Kong Xiong to trial for three felony counts. But his brother told Action News, he believes Xiong was just in the wrong place at the wrong time.
Kong Xiong walked into the courtroom wearing a blue jumpsuit and sat quietly as a Merced police officer described the night he shot at the 18 year old. Xiong's mother sat in the front row crying before the defense attorney asked her to be calm.
"It's pretty hard for her," said Jer Vang, Xiong's brother. "Every time we go home she's always crying saying she misses him."
But prosecutors argue Xiong put himself in this position by his actions the night of December third. Officer Eduardo Chavez told the judge he and a second officer arrived at a home and heard an argument outside. Then they heard the sliding sound of a semi-automatic gun being racked. Moments later he said they saw Xiong with his right hand under his jacket. They yelled at him to show his hands multiple times, and opened fire after they saw him holding a gun. Officer Chavez said he feared for his life and the life of his partner. But Xiong's attorney paints a different picture.
"He didn't brandish a weapon," said Sean Howard, Xiong's defense attorney. "He went outside to smoke a cigarette, he heard a noise, the area was very dark, the officers had crept up into this area that was on a property adjacent to where he had been and lit him up with their lights and started shooting at him."
Along with charges for illegally possessing a gun and ammunition, Xiong is also charged with being an active participant in a gang. A detective testified he has several gang tattoos. But Sean Howard argues that doesn't prove anything.
Howard explained, "People with Niner tattoos are not really on the Niners, people with Raiders tattoos are not part of the Raider organization, and I think it just basically boils down to the area where he grew up."
One point both sides agree upon is that an innocent person was killed in the crossfire. Vang Thao was Xiong's uncle.
The shooting was captured by a video camera on one of the officer's glasses, but that was not shown in court.
Xiong faces a maximum of four years and four months in prison if he's convicted.