Opinion
G055296
05-15-2020
THE PEOPLE, Plaintiff and Respondent, v. AARON TRUNG NGUYEN and ANTHONY VAN LE, Defendants and Appellants.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant Aaron Trung Nguyen. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Van Le. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Annie Featherman Fraser, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 11WF0963) OPINION Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed in part, reversed in part, and remanded with directions. Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant Aaron Trung Nguyen. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Van Le. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Annie Featherman Fraser, Deputy Attorney General, for Plaintiff and Respondent.
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A jury convicted defendants Aaron Trung Nguyen and Anthony Van Le of second degree murder (Pen. Code, 187, subd. (a); count 1), attempted murder (§§ 664, subd. (a), 187, subd. (a); count 2), and shooting at an occupied motor vehicle (§ 246; count 3). As to each offense, the jury found true allegations that defendants committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and vicariously discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (d), (e)(1)). Le was also convicted of participating in a criminal street gang (§ 186.22, subd. (a); count 4).
All further statutory references are to the Penal Code unless otherwise stated.
Nguyen was sentenced to state prison for a term of 40 years to life as to count 1, comprised of 15 years to life for second degree murder and a consecutive term of 25 years to life for vicariously using a firearm in the offense. A concurrent term of 30 years to life was imposed on count 2, comprised of five years for the attempted murder conviction and 25 years to life for the firearm enhancement. As to count 3, the court imposed three years for the offense of shooting at an occupied vehicle and 25 years to life for the firearm enhancement, but stayed the sentence under section 654. Le received the same sentence as Nguyen as to counts 1 through 3. For the active gang participation conviction in count 4, the court imposed the low term of 16 months and then stayed the sentence under section 654. As to both defendants, the court dismissed the gang enhancements for sentencing purposes.
Defendants' convictions were based on events in which members of the Tiny Rascals Gang (TRG) and its affiliate Hellside sought to fight rival gang members outside a pool hall. When the rival gang members fled in a vehicle, multiple cars occupied by TRG and Hellside members gave chase. A Hellside member shot at the rival's car, killing one rival and seriously wounding another. Neither defendant was the shooter. Nguyen was not even a gang member. Defendants were convicted of murder, attempted murder, and shooting at an occupied vehicle based on two theories of vicarious liability under the natural and probable consequences doctrine: (1) defendants aided and abetted the commission of the uncharged target crime of disturbing the peace, challenging another to fight in a public place (§ 415, subd. (1)), and the charged offenses were the natural and probable consequence of the target crime; and/or (2) defendants entered into a conspiracy to disturb the peace and the charged offenses were the natural and probable consequences of the target crime.
Defendants raise multiple issues on appeal. Le contends all of his statements to the police should have been excluded because he was subjected to custodial interrogation without being advised of his Miranda rights and the police deliberately engaged in a two-step interrogation technique condemned in Missouri v. Seibert (2004) 542 U.S. 600 (Seibert). Because neither contention was raised below, Le asserts a violation of his Sixth Amendment right to the effective assistance of counsel. We reject Le's claim that his counsel was ineffective for failing to move for the suppression of his statements as we cannot say on this record that his counsel lacked a satisfactory explanation.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Le also seeks reversal of his convictions in counts 1 through 3 by arguing the evidence was insufficient to prove he aided and abetted the target crime of disturbing the peace or that the charged offenses were the natural and probable consequences of disturbing the peace. He further argues the evidence was insufficient to support his conviction for active gang participation in count 4. We agree the evidence was insufficient to support Le's active gang participation conviction and reverse it, but we conclude the evidence was sufficient to support his remaining convictions.
Le raises two contentions concerning the court's instructions on the conspiracy natural and probable consequences theory: (1) The court committed instructional error with its modified version of CALCRIM No. 417 on coconspirator liability; and (2) that the conspiracy natural and probable consequences theory is invalid when the target crime is disturbing the peace. We reject both contentions.
Finally, Le raises sentencing issues, contending his case should be remanded for the trial court to consider whether to exercise its discretion to strike the firearm enhancements; discretion the court did not have at the time of his sentencing. He also requests we remand his case for the court to conduct a Franklin proceeding. We agree a remand is appropriate for both issues. We also agree with the contention that the court's order for direct victim restitution (§ 1202.4, subd. (f)) should indicate that liability is joint and several with certain codefendants. We also order corrections of clerical errors in Le's abstract of judgment.
People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
Nguyen contends the evidence was insufficient to support his convictions under either theory of vicarious liability. We agree, reverse the judgment against him, and therefore do not reach his other claims.
After briefing was complete, the parties filed supplemental briefs regarding the impact of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015; Senate Bill 1437), which was enacted while this appeal was pending, to defendants' convictions for murder and attempted murder. We conclude that Le must file a petition in the superior court under section 1170.95 to obtain relief for his murder conviction and that Senate Bill 1437 does not apply to attempted murder.
FACTS
On the evening of March 19, 2011, members of TRG, a criminal street gang, attended a party at the home of Andrew Tran, an associate of the gang. About 20 people attended the party, including members of TRG's affiliate Hellside and non-gang members. Defendant Le, a member of TRG, was at the party with Cynthia Sipaseuth. Defendant Nguyen, who was not a member or associate of any gang, attended the party with his girlfriend Nina Nguyen. Also in attendance were Benjamin Nguyen, a member of Hellside, S.A., a minor who was an associate of TRG, and Tien Phung, a high ranking member of TRG known as CJ. At the party, Tran suggested they go and look for TRG's rivals, which were the gangs Power of Vietnamese (POV), Vietnamese Together (VT), and Asian Family (AF).
Many of the participants in and witnesses to the events that night share the surname Nguyen. Defendant Aaron Nguyen will be referred to as Nguyen. The rest, for the sake of clarity, will be referred to by their first name; no disrespect is intended.
When Tran's party ended around midnight, the partygoers piled into different cars with a plan to look for POV and VT members. S.A. got into the backseat of Tran's car, along with two others, one of whom was affiliated with TRG. Benjamin was in the front passenger seat of Tran's car and had a silver semiautomatic firearm.
Le left the party in a car driven by Sipaseuth, who testified at trial under a grant of immunity. They went to the home of Duy Kim, a Hellside member, who retrieved a gun and put it into the car of another Hellside member who had been at Tran's party. Sipaseuth heard someone say that if they found members of POV or VT, they would shoot them. Sipaseuth and Le then went to Stonecress Park, where they met up with other people from Tran's party, including Nguyen and Nina.
Nguyen and Nina had gone to Stonecress Park in Nguyen's car, after leaving Tran's party. Riding with Nguyen were Nina's friend Julie and two members of TRG, Alex Tran and Tony. Several people from the party were also at the park. Alex got out of Nguyen's car and talked to CJ. When Alex got back in the car, he told Nguyen to follow CJ's car but did not explain why. As they were leaving the park, Nina heard Alex talking on his phone and say something about chasing and attacking POV. Nguyen eventually lost CJ's car. Using his cell phone, Alex tried to locate CJ and the others but was unsuccessful. Nguyen stopped at a restaurant. Alex and Tony got out of the car and were on their phones. At one point, Nguyen got out of the car too. When they left the restaurant, Tony told Nguyen to go to the pool hall. Nina heard Tony talking on the phone and saying, "We have to follow them, we have to trap them." Nina, who also testified under a grant of immunity, knew there was rivalry between TRG and POV and that TRG wanted to beat them up.
Witnesses did not provide Tony's surname.
After leaving the park, Sipaseuth and Le met others from the party at a taqueria. Once they left the taqueria, either Le or Sipaseuth received a phone call telling them to go to a pool hall on Westminster Boulevard. Le expected members of VT to be at the pool hall. On their way, they picked up another TRG member, Tom Phung, CJ's younger brother.
Around 2:00 a.m., now on March 20, 2011, several cars containing TRG and Hellside members and associates arrived at the pool hall's parking lot. S.K., riding in Tran's car, saw CJ's car in the parking lot and recognized three or four other cars. Tran and Jonathan Tieu got out of the car, walked up to the front of the pool hall, and called out to people in the pool hall, asking where they were from, which is considered a "hit-up" and a challenge to fight in gang culture. Tieu yelled he was from TRG.
The hit-up was directed at Roger James, Scottie Bui, and Jimmy Nguyen, who were playing pool with three others. James and another member of the group were AF members. Bui was a member of POV, and the others were not gang members. As they were leaving the pool hall and walking to their sports utility vehicle (SUV), Jimmy heard someone standing near Tran's car yell, "TRG all day every day" and "TRG. What's up?" to which someone in his group responded to the effect of, "What's up? You want something?" James heard someone yell, "Fuck AF." Someone in his group yelled "Viet Together" to which Tran's group responded "Fuck VT." The two groups shouted back and forth at each other, but there was no physical contact between them. Both groups got into their cars.
Getting back into his car, Tran told S.A. that the rival group had weapons including knives and chains. S.A. saw one rival holding a knife. Tran suggested they try to block in the rivals' SUV; a suggestion that was communicated to the other cars via cell phone.
When Le and Sipaseuth arrived at the pool hall, Le saw several cars parked so as to create a checkpoint that blocked vehicles trying to exit the parking lot. Following Le's instructions, Sipaseuth parked away from the other cars. About that time, they saw a vehicle leaving the parking lot and Le identified one of its occupants as a VT member.
The SUV containing James, Bui, and the others exited the parking lot. Benjamin, with the gun in his lap, told Tran to follow them. Tran gave chase, following the SUV as it turned onto the street. Within a quarter of a mile, Tran pulled up to the left side of the SUV. Benjamin rolled down his window and yelled "Do you guys bang?" He then fired five shots at the SUV. Bui died from a gunshot wound to the head. James survived being shot in the neck.
Sipaseuth and Le watched Tran's car and CJ's car follow the SUV out of the parking lot at a high rate of speed. Sipaseuth's car was one of the last to leave the parking lot. As she was turning onto the street, she heard a gunshot. Le told her to slow down. They went to the home of CJ's cousin, where they heard Benjamin had shot at the rivals but missed.
Gang evidence
Gang expert, Investigator Vi, explained gang members are expected to back each other up in a fight. Before this shooting, there had been prior confrontations and acts of vandalism and violence between TRG and their rivals. In August 2010, a member of TRG was shot in the arm, and the handgun used to shoot him was found hidden at the home of a POV member. Bui, the victim in this case, was in the house when the gun was found.
Nguyen's police interview and phone records
A month after the shooting, Nguyen was interviewed by two police detectives. Although he was not a gang member, Nguyen liked to party with both TRG and POV members. He told the detectives he did not get involved in their gang rivalry and never backed them up in a fight.
When asked what happened on the night of the shooting, Nguyen said he went to Tran's party and afterwards followed a few cars around but they did not tell him where they were going. Eventually he lost the car he was following. Tony, Alex, and Julie were riding with him and Nina. Nguyen initially denied being at the park but then admitted hanging out at the park with several people from the party. He did not remember anyone at the park talking about beating up POV. Nguyen told the detectives that the gang members "only talk to [their] little clique about what they're gonna do" and they do not tell him. When he got lost, he parked in front of a restaurant, where they waited for a long time. Nguyen repeatedly denied being at the pool hall when the shooting happened, even when the detective told him that phone records showed that he was there.
Nguyen's cell phone records showed two calls from CJ at 12:17 and 12:30 a.m. and a call to CJ at 12:33 a.m., which was shortly after Tran's party ended. Records also showed that at 1:58 a.m., his cell phone connected to a tower near the restaurant he claimed to have stopped and waited after losing the others. The drive from the restaurant to the pool hall would take 10 to 15 minutes. His phone did not show any activity again until 4:06 a.m.
Le's police interview
Le was also interviewed by detectives a month after the shooting. He admitted previously being a member of TRG but claimed he "jumped out" of the gang before he turned 18.
At first, Le denied any involvement in the events on the night of the shooting or knowing many of the TRG and Hellside members involved in the events. He later admitted being at Tran's party and staying there until the party ended. Afterward, he rode with his friend Sipaseuth to Stonecress Park. From there, they went to a taqueria and met up with some others. After leaving the taqueria, they picked up Tom Phung from his then girlfriend's house. They then received a call telling them to go to the pool hall. Le thought there was going to be a fight at the pool hall. He did not plan on fighting but would jump in and help his friends if the other side pulled out weapons. As soon as they got there and Le saw the configuration of the parked cars, he realized there was a plan he was unaware of and told Sipaseuth they should leave. When there was an opening in the group of cars exiting the parking lot, Le told Sipaseuth to drive out of the parking lot. The other cars passed them, and he heard three gun shots.
DISCUSSION
I. ADMISSIBILITY OF LE'S POLICE INTERVIEW
Le was interviewed by two detectives at the police station one month after the shooting. More than two hours into the interview, Le was informed that he was under arrest and advised of his Miranda rights. Both before and after being advised of his Miranda rights, Le made inculpatory statements concerning his actions and intent on the night of the shooting. Le's statements made prior to being given Miranda warnings were admitted at trial without objection. The court, however, excluded Le's post-Miranda statements, finding Le did not knowingly and intelligently waive his Miranda rights.
On appeal, Le asserts his pre-Miranda statements should have been excluded as well. He makes two contentions that the admission of his pre-Miranda statements violated his federal constitutional rights against self-incrimination (U.S. Const., 5th Amend.) and due process (U.S Const., 14th Amend.). First, he contends the pre-Miranda portion of his police interview was custodial and his statements therefore were inadmissible. Second, he asserts the court should have suppressed his entire police interview because the police deliberately engaged in a two-step interrogation technique condemned in Seibert, supra, 542 U.S. 600. Le recognizes that his claims concerning Miranda and Seibert are forfeited on appeal because he did not raise them in the trial court. (Evid. Code, § 353, subd. (a); see People v. Linton (2013) 56 Cal.4th 1146, 1170 [claim that Miranda waiver was invalid was forfeited on appeal because defendant failed to raise claim in suppression motion].) Because his trial counsel failed to seek exclusion of his pre-Miranda statements in the trial court, Le contends he was deprived of his Sixth Amendment right to the effective assistance of counsel.
On the record in this case, we cannot conclude counsel's failure to move for the exclusion of Le's pre-Miranda statements constituted ineffective assistance.
The standard of review for an ineffective assistance of counsel claim is well-settled. A defendant must establish that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and that it is reasonably probable that, but for counsel's error, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694-695.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.) It is "particularly difficult" for a defendant to prevail on direct appeal on a claim that his trial counsel provided ineffective assistance. (People v. Mai (2013) 57 Cal.4th 986, 1009.) A reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. [Citation.] Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." (People v. Maury (2003) 30 Cal.4th 342, 389.) Our Supreme Court has explained, "A claim of ineffective assistance . . . is more appropriately decided in a habeas corpus proceeding." (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
A. Le has failed to demonstrate his counsel was ineffective for failing to seek suppression of his statements based on a Miranda violation.
Below, it was undisputed that Le's pre-Miranda interrogation was noncustodial. But now on appeal, Le asserts a portion of his pre-Miranda statements were made while he was in custody and his counsel rendered ineffective assistance by failing to seek suppression of his statements on this ground.
The transcript of the unedited video of Le's police interview, which was reviewed by the trial court during pretrial proceedings, is 195 pages long. Without objection from Le's counsel, the court ruled Le's statements made prior to page 150 of the transcript were admissible because there was no Miranda violation. Le contends he was in custody from page 94 of the transcript "on, or at the very least from [page 118] on," and his custodial statements should have been suppressed.
"An interrogation is custodial, for purposes of requiring advisements under Miranda, when 'a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' [Citation.] Custody consists of a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest. [Citations.] When there has been no formal arrest, the question is how a reasonable person in the defendant's position would have understood his situation." (People v. Moore (2011) 51 Cal.4th 386, 394-395.)
In evaluating whether a "defendant was 'taken into custody or otherwise deprived of his freedom of action in any significant way'" (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1161), "[c]ourts have identified a variety of relevant circumstances." (Id. at p. 1162.) "Among them are whether contact with law enforcement was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview; whether the express purpose of the interview was to question the person as a witness or a suspect; where the interview took place; whether police informed the person that he or she was under arrest or in custody; whether they informed the person that he or she was free to terminate the interview and leave at any time and/or whether the person's conduct indicated an awareness of such freedom; whether there were restrictions on the person's freedom of movement during the interview; how long the interrogation lasted; how many police officers participated; whether they dominated and controlled the course of the interrogation; whether they manifested a belief that the person was culpable and they had evidence to prove it; whether the police were aggressive, confrontational, and/or accusatory; whether the police used interrogation techniques to pressure the suspect; and whether the person was arrested at the end of the interrogation. [Citations.] [¶] No one factor is dispositive. Rather, [a court] look[s] at the interplay and combined effect of all the circumstances to determine whether on balance they created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest." (Ibid.)
In his appellate brief, Le cites several factors and argues they favor a finding of custody: the interview took place at the police station "behind a closed door in a windowless interrogation room" with two police detectives; when the interview began, Le was not told he was free to leave; the interview was lengthy, lasting two hours before Le confessed; the tone was accusatory and confrontational; the purpose of the interview was to obtain evidence incriminating Le as the police told him they knew he was present in the pool hall parking lot; and Le was arrested after making inculpatory statements. But other circumstances suggest Le was not in custody prior to his arrest. After the police executed a search warrant on his residence, Le spoke with Detective Maciel by telephone, and later that afternoon, Le voluntarily went to the police station with his mother. Once he arrived, Le was escorted by Maciel and another officer across the parking lot to a different building for the interview but was not handcuffed. At the beginning of the interview, Le was told he was not under arrest.
As reflected above, the issue of whether a defendant was in custody for purposes of Miranda is fact intensive and requires consideration of numerous circumstances. On this record, we cannot conclude that Le's counsel was ineffective for failing to argue that Le was in custody for any of his pre-Miranda statements. We are mindful that "[a]n appellate court should not declare that a police officer acted unlawfully, suppress relevant evidence, set aside a jury verdict, and brand a defense attorney incompetent unless it can be truly confident all the relevant facts have been developed and the police and prosecution had a full opportunity to defend the admissibility of the evidence." (People v. Mendoza Tello, supra, 15 Cal.4th at p. 267.) Because no argument was made in the trial court that Le was in custody when he made the statements, all of the relevant facts have not been developed and the People have not had an opportunity to defend the admissibility of his pre-Miranda statements.
Nor can we say counsel could have no satisfactory explanation for failing to seek suppression of Le's pre-Miranda statements as the record suggests counsel may have had reasonable tactical reasons for not pursuing a suppression motion. Counsel initially requested a hearing on the admissibility of Le's statements, explaining that he would like to question the detective as to how things "unfolded," but after the detective was made available to him, counsel changed his mind and indicated there was no need for testimony and he did not seek to suppress Le's pre-Miranda statements. Counsel may well have obtained information from the detective that justified his decision not to seek suppression of Le's pre-Miranda statements.
We also note that Le's pre-Miranda interview included some exculpatory evidence that counsel could, and did, use in Le's defense. In his statements to the police, Le mitigated his involvement in the events leading up to the shooting. He explained that when he arrived at the pool hall parking lot, his "jaw just dropped" because he saw a lot of cars there already and he did not know what was happening. He drew a picture for the detectives showing the location of those cars and that he and Sipaseuth parked away from the others and were not involved in the attempt to block cars in the parking lot. He also downplayed his involvement in TRG, telling the detectives that he had been jumped out of the gang and was no longer a member. He offered an explanation for the TRG baseball cap recovered from his room earlier that day during execution of the search warrant. In discussing his personal background, Le stated he had just graduated from high school and had plans to go to community college and then to a university. He painted a sympathetic picture of himself as a young man who was working, trying to stay away from the gang, and helping out his mother, who was struggling financially. All of this was evidence the jury would not have heard if Le's pre-Miranda statements were suppressed. Counsel could have made a reasonable tactical decision that it was more advantageous to have Le's police interview admitted than to have Le testify at trial and be subjected to cross-examination.
In his opening statement, Le's counsel told the jurors they were going to hear Le's police interview and that after listening to it, they would see Le had "an innocent state of mind." Counsel stated that Le's actions of voluntarily going to the police station and talking to the police showed Le was a witness with nothing to hide and was not guilty of the charges. During his closing argument, Le's counsel repeatedly used Le's statements to the police as counsel urged the jury to find Le did not intend to help in the fight and was not guilty of the charges. He highlighted Le's statement that when they arrived at the pool hall parking lot and Le saw what was happening, he did not want to be a part of it and told Sipaseuth to hang back. Counsel pleaded with the jury to rewatch the video of Le's interview and review the transcript to see the context in which Le said he would back up his friends who were TRG members.
On this record, we cannot say that counsel lacked a tactical reason for his decision not to move for the suppression of Le's pre-Miranda statements. Thus, we must reject Le's claim that his trial counsel was ineffective. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 267.)
B. Le has failed to demonstrate his counsel was ineffective for failing to seek suppression of his statements based on Seibert.
We similarly reject Le's argument that his counsel was ineffective for failing to seek suppression of his statements on the ground the police deliberately engaged in a two-step interrogation technique prohibited in Seibert, supra, 542 U.S 600. Like Le's Miranda argument, his Seibert claim is forfeited on appeal because it was not raised in the trial court. And because it was not raised below, critical facts have not been developed for us to determine whether Seibert applies.
In Seibert, the United States Supreme Court held the defendant's post-Miranda statements were inadmissible where the police deliberately engaged in a two-step interrogation technique "calculated . . . to undermine the Miranda warning." (Seibert, supra, 542 U.S at p. 622 (conc. opn. of Kennedy, J.); see People v. Camino (2010) 188 Cal.App.4th 1359, 1370 ["Because Justice Kennedy 'concurred in the judgment[] on the narrowest grounds' [citation], his concurring opinion represents the Seibert holding"].) "In Seibert, an officer 'testified that he made a "conscious decision" to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question "until I get the answer that [the suspect's] already provided once."'" (Camino, at pp. 1368-1369.)
Here, however, there is no evidence the police deliberately used a two-step approach to circumvent Miranda. Neither of the detectives who interviewed Le testified at trial that they were trained to use a two-step interrogation technique calculated to undermine Miranda and deliberately used such a strategy in Le's interview. The relevant facts simply are not in the appellate record. Without them, Le's claim must be rejected. Moreover, we have already concluded counsel's representation was not ineffective for failing to object to the pre-Miranda statements and the court excluded the post-Miranda statements on other grounds. Siebert simply has no application.
Accordingly, Le's claims of ineffective assistance of counsel—for not seeking suppression of his statements under Miranda or Seibert—fail. II. SUFFICIENCY OF THE EVIDENCE CLAIMS
The jury was instructed and the prosecutor argued that defendants could be convicted of the charged crimes of murder, attempted murder, and shooting at an occupied vehicle under the natural and probable consequences doctrine either as aiders and abettors or as coconspirators to the uncharged target crime of disturbing the peace. Both defendants contend the evidence was insufficient to support their convictions under either one or both of these theories. Le asserts there was insufficient evidence that he aided and abetted the target crime of disturbing the peace or that the charged offenses were the natural and probable consequences of disturbing the peace. Nguyen contends the evidence was insufficient to support his convictions under either theory. We disagree with Le's contentions but agree with Nguyen.
Le also argues that the evidence was insufficient to support his conviction for active participation in a criminal street gang because he did not commit or directly aid and abet a felony offense. We agree.
We begin by reviewing aider and abettor and coconspirator liability under the natural and probable consequences doctrine and the sufficiency of the evidence standard of review.
"Under California law, a person who aids and abets a confederate in the commission of a criminal act is liable not only for that crime (the target crime), but also for any other offense (nontarget crime) committed by the confederate as a 'natural and probable consequence' of the crime originally aided and abetted." (People v. Prettyman (1996) 14 Cal.4th 248, 254.) "To convict a defendant of a nontarget crime as an accomplice under the 'natural and probable consequences' doctrine, the jury must find that" (ibid.) "the defendant (1) with knowledge of the confederate's unlawful purpose; and (2) with the intent of committing, encouraging, or facilitating the commission of any target crime(s); (3) aided, promoted, encouraged, or instigated the commission of the target crime(s). The jury must also determine whether (4) the defendant's confederate committed an offense other than the target crime(s); and whether (5) the offense committed by the confederate was a natural and probable consequence of the target crime(s) that the defendant encouraged or facilitated." (Id. at p. 271.)
"A nontarget offense is a '"natural and probable consequence"' of the target offense if, judged objectively, the additional offense was reasonably foreseeable. [Citation.] The inquiry does not depend on whether the aider and abettor actually foresaw the nontarget offense. [Citation.] Rather, liability '"is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted."' [Citation.] Reasonable foreseeability 'is a factual issue to be resolved by the jury.'" (People v. Chiu (2014) 59 Cal.4th 155, 161-162 (Chiu).)
Conspiracy is a parallel theory of vicarious liability under the natural and probable consequences doctrine. (People v. Rivera (2015) 234 Cal.App.4th 1350, 1356.) "[A] conspiracy consists of two or more persons conspiring to commit any crime. A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act 'by one or more of the parties to such agreement' in furtherance of the conspiracy." (People v. Morante (1999) 20 Cal.4th 403, 416, fn. omitted.) Under this theory, like aiding and abetting, a coconspirator is liable "'for the criminal harms they have naturally, probably and foreseeably put in motion.'" (Rivera, at p. 1356.)
"In reviewing a challenge to the sufficiency of the evidence, 'we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. . . . "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.] We do not reweigh evidence or reevaluate a witness's credibility.'" (People v. Alexander (2010) 49 Cal.4th 846, 917.)
A. Substantial evidence supports Le's convictions in Counts 1 through 3.
1. Substantial evidence Le aided and abetted the target offense of disturbing the peace
Le contends there was insufficient evidence that his words or conduct aided and abetted the commission of the crime of disturbing the peace, a violation of section 415, subdivision (1), which prohibits any person from "unlawfully fight[ing] in a public place or challeng[ing] another person in a public place to fight." He cites evidence that he remained in the car when Tran and the others hit-up TRG's rivals in the parking lot and that the car he was in did not participate in the effort to block the rivals' car as it was leaving or chase it down the street to where the shooting occurred. He also asserts that he arrived "too late to aid and abet the crime." Essentially, Le is asking us to reweigh the evidence presented to the jury and reach a different result. This we cannot do when reviewing for sufficiency of the evidence. (People v. Mejia (2012) 211 Cal.App.4th 586, 608.)
Reviewing the entire record in the light most favorable to the judgment, as we must (People v. Alexander, supra, 49 Cal.4th at p. 917), we conclude there is substantial evidence from which a reasonable jury could find Le's conduct aided and abetted the uncharged target offense of disturbing the peace, challenging another to fight in public. Le, a current or former member of TRG, was at Tran's party with other members of TRG and Hellside, where a plan was hatched to look for and fight their gang rivals POV and VT. Le, in a car driven by Sipaseuth, went to the home of Hellside member Duy Kim, who retrieved a gun and put it into the car of another person from the party. Sipaseuth heard someone say that if they found the rivals they would shoot them. As Le was with Sipaseuth, the jury could reasonably infer Le also heard this. (See People v. Brooks (2017) 3 Cal.5th 1, 57 ["'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence'"].)
Le and Sipaseuth did not decide to break away from the roving group of TRG and Hellside members searching for their rivals but instead met up with them at the park and taqueria. They received a phone call telling them to pick up another TRG member, Tom Phung, before going to the pool hall, and they did as directed. Le went to the pool hall expecting VT to be there and anticipating a fight between TRG members and their rivals. In his police interview, Le admitted he was there to watch the fight and provide backup if TRG's rivals pulled out weapons. When Le and Sipaseuth saw their friends following the rival's car out of the parking lot, Le instructed Sipaseuth to pull out of the parking lot. Le's actions, as well as his presence as a known TRG member, encouraged the disturbance of the peace that began in the parking lot when Tran and his group hit-up individuals affiliated with VT and POV and continued as Tran and the others chased them out of the parking lot and down the street to where the shooting occurred. After the shooting, Le and Sipaseuth went to the home of CJ's cousin, where TRG members were present and discussing the shooting.
In summary, Le knew of the plan to find and then fight TRG's rivals, and Le followed the instructions he was given to help bring that plan to fruition. Although there is no evidence that he got out of the car in the parking lot, undeniably he answered the call to meet at the pool hall knowing the plan was to fight TRG's rivals and he was willing to jump into the fight if needed. Le's actions promoted or encouraged the disturbance of the peace that resulted in Bui's death and James's serious injury.
Le contends his aiding and abetting liability was based on his "mere presence" at the scene and his gang membership. In support of this contention, he relies on Mitchell v. Prunty (9th Cir. 1997) 107 F.3d 1337, overruled on other grounds in Santamaria v. Horsley (9th Cir. 1998) 133 F.3d 1242, 1248. Le's reliance on Mitchell is misplaced. In Mitchell, the court concluded there was insufficient evidence the defendant aided and abetted a gang-related murder as there was no evidence he rendered any assistance or encouraged the driver who ran over the gang rival and crushed him. (Mitchell, at p. 1342.) The Ninth Circuit indicated that "[m]embership in a gang cannot serve as proof of intent, or of the facilitation, advice, aid, promotion, encouragement or instigation needed to establish aiding and abetting." (Ibid.) We are not faced with that situation here. Le was not convicted solely on his presence in the parking lot and his gang membership in TRG. Evidence of Le's conduct before and after the disturbance of the peace provided substantial evidence that he aided and encouraged the target offense of disturbing the peace by being ready to provide any needed backup. (See People v. Campbell (1994) 25 Cal.App.4th 402, 409 ["'[a]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense'"]; People v. Mejia, supra, 211 Cal.App.4th 586, 607 [affirming multiple gang members' convictions for murder as aiders and abettors, including member who reluctantly went with others to rival's residence "'to have [his friend's] back'"].)
2. Substantial evidence the charged crimes were the natural and probable consequence of aiding and abetting the target crime of disturbing the peace
Doubling down on his contention that he "did not aid and abet the target crime," Le asserts his involvement in the target offense was so minimal that "[a] reasonable person in [his] position would not have or should not have known that murder, attempted murder or shooting at an occupied motor vehicle was the natural and probable consequence of disturbing the peace—fighting or challenging others to fight." Citing numerous cases with varying factual scenarios, Le contends "[a]ll the major cases holding an aider and abetter defendant liable for, . . . murder or attempted [murder] under the natural and probable consequence [doctrine] because of a gang fight or any assault-type altercation has evidence that the defendant was actually involved in the fight, or was a major participant as the driver, kidnapper, or orchestrator of the assault." He asserts the absence of such evidence in his case requires reversal of his convictions in counts 1 through 3. In effect, Le is seeking a per se rule "that murder, attempted murder and shooting at an occupied vehicle are not the natural and probable consequence of disturbing the peace—fighting unless [the defendant] was involved in the fight or in some way a major participant." We reject Le's contention.
Our Supreme Court has cautioned against "focusing on facts that were missing, rather than on the actual evidence presented" when reviewing a jury's decision that a charged offense was the natural and probable consequence of the target offense. (People v. Medina (2009) 46 Cal.4th 913, 921.) In Medina, the Court of Appeal had held there was insufficient evidence to support the jury's finding that the charged crimes of murder and attempted murder were a reasonably foreseeable consequence of a gang fistfight. (Id. at p. 920.) The Court of Appeal reached this conclusion after reviewing several gang violence cases and distilling six factors material to the holdings in these cases but finding none of those factors were present in its case. (Id. at pp. 920-921.) The Supreme Court rejected the Court of Appeal's decision (id. at pp. 921-922), explaining that the absence of any one factor "is not dispositive" (id. at p. 922). Reviewing the whole record in the light most favorable to the prosecution, the Supreme court concluded "the jury could reasonably have found that a person in defendants' position (i.e., a gang member) would have or should have known that retaliation was likely to occur and that escalation of the confrontation [which began as a gang hit-up] to a deadly level was reasonably foreseeable as [the victim] was retreating from the scene." (Id. at pp. 922-923.) In Medina, the court emphasized that "the ultimate factual question" of whether a shooting was a reasonably foreseeable consequence of a verbal challenge is "to be evaluated under all the factual circumstances of the case." (Id. at p. 927.)
Having reviewed the record, we conclude there was sufficient evidence the charged crimes were the natural and probable consequences of the target crime of disturbing the peace. Hours before the shooting, several TRG members and affiliates, including Le, set out in separate cars with a plan to find and confront their gang rivals. Le was well aware of the plan to fight TRG's rivals, POV and VT, when they found them. He anticipated weapons might be involved in the altercation by one side or the other and with good reason. He was with Sipaseuth when Kim obtained a gun and put it in one of the cars. Thus, the evidence easily supported the inference that Le knew at least one person in his group had a gun. (See Medina, supra, 46 Cal.4th at p. 924 ["The fact that at least two of the gang members knew a gun was available at the scene is further evidence that gun violence was foreseeable"].)
The gang expert explained that a gang challenge, like the one that occurred in the parking lot, can result in a violent confrontation. After the exchange in the parking lot between Tran's group and James's and Bui's group, the shooting, resulting in Bui's death and James's injury, was not an unreasonable result. The natural and probable consequence doctrine applied because it was foreseeable "that the verbal confrontation by the . . . gang members would likely escalate into some type of physical violence." (People v. Medina, supra, 46 Cal.4th at p. 927.) Here, as in Medina, "the jury could reasonably have found that [Le] would have or should have known . . . that escalation of the confrontation to a deadly level was reasonably foreseeable as [the rivals' vehicle] was retreating from the scene." (Id. at pp. 927-928.) We conclude there was sufficient evidence that the charged offenses were the natural and probable consequences of the target offense. Accordingly, there was substantial evidence to support Le's convictions.
B. The evidence was insufficient to support Nguyen's convictions.
Nguyen argues the evidence was insufficient to support his convictions as either an aider and abettor or a coconspirator under the natural and probable consequences theory. As to the aiding and abetting theory, he contends there was a lack of substantial evidence that he directly committed or aided and abetted the crime of disturbing the peace, and as to the conspiracy theory, he asserts there was insufficient evidence that he entered into a conspiracy to commit the crime of disturbing the peace. As to both, he contends there was insufficient evidence that the charged crimes were the natural and probable consequences of the crime of disturbing the peace.
We first consider whether there substantial evidence that Nguyen aided and abetted the target crime of disturbing the peace. The jury was instructed on aiding and abetting with CALCRIM No. 401, which explained: "Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime."
Nguyen concedes substantial evidence was presented at trial that he knew TRG members intended to confront their rivals that night. He contends, however, the evidence was insufficient to prove that he intended to commit, encourage, or facilitate the commission of the offense of disturbing the peace. We agree.
The appellate record lacks substantial evidence that Nguyen specifically intended to aid and abet TRG and Hellside members in their commission of disturbing the peace. The prosecution presented no evidence, circumstantial or otherwise, that Nguyen intended to be involved in any confrontation or fight between TRG and its rivals. This is but one fact that differentiates the evidence against him from the evidence against Le, as Le was willing to jump into the fight if his TRG friends needed help. There was no evidence Nguyen intended to join the fight under any circumstances.
Nor was there substantial evidence that Nguyen intended to encourage, facilitate, promote, or instigate the offense of disturbing the peace. It was undisputed that Nguyen was not a gang member nor affiliated with any gang. Nguyen had no personal interest in TRG's rivalry with POV or the others. In fact, it was quite the opposite. Nguyen was friends with and hung out with members of TRG and their rivals POV and AF. While he had two TRG members in his car that night, he was also friends with two of the individuals in the rivals' SUV, whom he had hung out with on many occasions. The evidence does not support the inference that he intended to aid or encourage a confrontation as he was friends with gang members on both sides. Nguyen told the police that he never got involved in the rivalry between the gangs and the prosecution failed to present substantial evidence that he intended to on this occasion.
The Attorney General asserts Nguyen assisted in disturbing the peace by "boxing in the victims' car." However, the evidence at trial did not show that Nguyen was involved in efforts to box in or trap the victims' SUV in the pool hall's parking lot. Indeed, there was little evidence his car was in the parking lot. Neither Sipaseuth nor S.K. saw Nguyen's car there. Nguyen's cell phone records confirmed that when the TRG members were converging on the pool hall around 2:00 a.m., he was several miles away, near a restaurant he and Nina claimed to have stayed at because he lost CJ's car. As Nguyen was a 10- to 15-minute drive away and the shooting occurred shortly before 2:22 a.m., it is possible that he arrived just before the shooting took place. But there is no evidence that he arrived and then joined in a plan to box in the rivals' SUV in the parking lot.
Nina's statements as to whether they were at the pool hall that night were consistently inconsistent; at times she said they were not there that night and other times she said they were or that she had confused that pool hall with another one when she said they were there. At the urging of a detective when she was interviewed one month after the offense, she drew a diagram showing Tran's and CJ's cars trying to trap a car driving down the street with Nguyen's car amongst those following. But Nina testified this incident happened after they left the park, not the pool hall, and did not involve the victims' car. Nina consistently maintained that she did not see or hear the shooting and that Nguyen was not involved in trying to trap a car after exiting the pool hall's parking lot.
Nguyen's status as a non-gang member and the absence of evidence that he intended to fight or assist in the gang confrontation distinguishes this case from People v. Ayala (2010) 181 Cal.App.4th 1440. In Ayala, the Court of Appeal held the evidence was sufficient to support the defendant's conviction for second degree murder under the aiding and abetting natural and probable consequences theory where the defendant, who was a gang member, drove five fellow gang members to a planned physical attack on rival gang members and one of the defendant's confederate's shot and killed one of the rivals. (Id. at pp. 1443, 1447-1449.) There, unlike here, the defendant planned to participate in the attack by beating up a rival gang member. (Id. at p. 1445.) The Ayala court concluded "[t]he shooting was a natural and probable consequence of the gang attack." (Id. at pp. 1448-1449.) Critically missing from this case is evidence that Nguyen, a non-gang member, intended to aid or encourage a confrontation between TRG and its rivals.
We also conclude the record does not contain substantial evidence to support the theory that Nguyen conspired to commit the crime of disturbing the peace. Again, evidence of Nguyen's intent is lacking. Conspiracy is a specific intent crime that requires both an intent to agree or conspire to commit a crime and a further intent to commit the target crime. (People v. Swain (1996) 12 Cal.4th 593, 602.) To be guilty of conspiracy, a defendant need not do anything illegal, but there must be evidence that he agreed to commit a crime. (People v. Smith (2014) 60 Cal.4th 603, 616.) Here, there is no evidence Nguyen intended to commit the crime of disturbing the peace. Nor is there substantial evidence that he intended to conspire to commit the offense.
In the absence of substantial evidence that Nguyen either aided and abetted or conspired to commit the crime of disturbing the peace, his convictions on counts 1 through 3 must be reversed.
C. The evidence was insufficient to support Le's conviction for active gang participation (count 4).
Le argues his conviction for active participation in a criminal street gang (§ 186.22, subd. (a)) must be reversed for insufficient evidence because he "only aided and abetted or conspired to commit disturbing the peace[,] which is not a felony" (capitalization omitted) and the offense requires promoting, furthering, or assisting in felonious criminal conduct by gang members. He contends there is not substantial evidence that he "aided and abetted the murder, attempted murder or shooting at an occupied vehicle." We conclude the evidence does not support Le's conviction for active gang participation based on the instruction given the jury for this offense, and we reverse Le's conviction in count 4.
Section 186.22, subdivision (a) provides, "Any person who actively participates in any criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment . . . ." Our Supreme Court has explained that a violation of the statute "requires that felonious criminal conduct be committed by at least two gang members . . . ." (People v. Rodriguez (2012) 55 Cal.4th 1125, 1132.)
The jury was instructed that to find Le guilty of active participation in a criminal street gang, "the People must prove that: 1. [He] actively participated in a criminal street gang; [¶] 2. When [he] participated in the gang, he knew that members of the gang engage in or have engaged in a pattern of criminal gang activity; [¶] AND [¶] 3. [He] willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang either by: [¶] directly and actively committing a felony offense; [¶] OR [¶] aiding and abetting a felony offense." (CALCRIM No. 1400.) Le does not challenge the evidence supporting the first two elements—that he actively participated in TRG, a criminal street gang, or that he had knowledge of its pattern of criminal gang activity. His argument focuses on the third element—whether he "willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang" by either directly committing or aiding and abetting a felony offense.
The instruction told the jurors that "Felonious criminal conduct means committing or attempting to commit the following crime: the crimes alleged in counts one, two, and three." The jury was further instructed: "To prove that the defendant aided and abetted felonious criminal conduct by a member of the gang, the People must prove that: [¶] 1. A member of the gang committed the crime; [¶] 2. The defendant knew that the gang member intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the gang member in committing the crime; [¶] AND [¶] 4. The defendant's words or conduct did in fact aid and abet the commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime."
Thus, the jurors were instructed that in order to find Le guilty of active gang participation, they had to find he directly aided and abetted the murder, attempted murder, or shooting at an occupied vehicle. The record, however, lacks substantial evidence that Le knew Benjamin intended to commit a murder, attempt a murder, or shoot at an occupied vehicle, or that Le specifically intended to and did in fact aid Benjamin in committing the murder, attempted murder, or shooting at an occupied vehicle.
Le's liability for the charged crimes of murder, attempted murder, and shooting at an occupied vehicle was based on the natural and probable consequences doctrine, not direct aider and abettor liability. The prosecutor argued and the jury was instructed on the theory that Le aided and abetted the crime of disturbing the peace, which as Le notes is not a felony (§ 415, subd. (1)), and the crimes charged in counts 1 through 3 were the natural and probable consequences of the disturbance of the peace offense. The prosecutor stayed with this theory in arguing Le was guilty of active gang participation. In discussing the elements of the active gang participation offense in his closing argument, the prosecutor confusingly suggested that disturbing the peace was a felony, arguing Le "directly committed or aided and abetted in a crime, a felony, which he aided and abetted in going there to challenge them to fight." This argument was inconsistent with CALCRIM No. 1400, which told the jury Le had to aid and abet felonious criminal conduct by a gang member. While there was substantial evidence Le directly aided and abetted the crime of disturbing the peace, evidence that he directly aided and abetted murder, attempted murder, or shooting at an occupied vehicle was lacking.
The Attorney General asserts the evidence shows Le "aided and abetted the murder, attempted murder, and shooting at an inhabited vehicle," but the Attorney General is unable to cite any evidence in the record showing that Le knew Benjamin intended to commit these crimes or that Le shared his murderous intent. (People v. McCoy (2001) 25 Cal.4th 1111, 1118 [under the direct aider and abettor liability theory, "the aider and abettor must know and share the murderous intent of the actual perpetrator"].) Accordingly, we reverse Le's conviction on count 4. III. INSTRUCTIONAL ISSUES
As discussed ante, the jury was instructed Le could be convicted of murder, attempted murder, and shooting at an occupied motor vehicle if he conspired to commit the target crime of disturbing the peace and the charged crimes were the natural and probable consequences of the target crime. Le raises two challenges to the instructions on the conspiracy natural and probable consequences theory. We reject both.
A. The court did not commit prejudicial error with its instruction on coconspirator liability, CALCRIM No. 417.
Le contends the court committed prejudicial instructional error with its instruction on coconspirator liability, CALCRIM No. 417. He asserts the instruction, as modified, permitted the jury to convict him of the charged offenses of murder, attempted murder, and shooting at an occupied vehicle, even if the jury found an uncharged coconspirator only committed the lesser included crimes of voluntary manslaughter, attempted voluntary manslaughter, or shooting a firearm in a grossly negligent manner. Le argues the court's instruction erroneously permitted him to be convicted of the greater crimes without requiring the jury find the coconspirator also committed the greater crimes. We conclude it is not reasonably likely the jury applied CALCRIM No. 417 as Le contends and reject his claim of instructional error.
"'An appellate court reviews the wording of a jury instruction de novo and assesses whether the instruction accurately states the law.'" (People v. Acosta (2014) 226 Cal.App.4th 108, 119.) "When considering a claim of instructional error, we view the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner." (People v. Houston (2012) 54 Cal.4th 1186, 1229.) "We presume that jurors are intelligent and capable of correctly understanding, correlating, applying, and following the court's instructions." (Acosta, at p. 119.)
When instructing on the conspiracy natural and probable consequences theory of liability, the court gave CALCRIM No. 416 ("Evidence of Uncharged Conspiracy") and CALCRIM No. 417 ("Liability for Coconspirators' Acts"). As given, CALCRIM No. 417 instructed the jury that a defendant could be convicted of the charged crimes "under a conspiracy natural and probable consequence theory" if the prosecution proved he conspired to commit the offense of disturbing the peace and "[a] member of the conspiracy committed the crime of murder, attempted murder, shooting at an occupied motor vehicle, voluntary manslaughter, and attempted voluntary manslaughter, and shooting a firearm in a grossly negligent manner" and these offenses were the natural and probable consequences of the crime of disturbing the peace. Defendants did not object to CALCRIM No. 417 nor request its modification. At the request of both defendants, the jury was also instructed on and given verdict forms for the lesser included offenses of voluntary manslaughter, attempted voluntary manslaughter, and shooting a firearm in a grossly negligent manner.
CALCRIM No. 416 informed the jury, in pertinent part, that in order "[t]o prove that a defendant was a member of a conspiracy in this case, the People must prove that: 1. The defendant intended to agree and did agree with others to commit the crime of disturbing the peace.; 2. At the time of the agreement, the defendant and one or more of the other alleged members of the conspiracy intended that one or more of them would commit the crime of disturbing the peace; 3. One of the alleged members of the conspiracy committed an overt act; and 4. This overt act was committed in California."
As given, CALCRIM No. 417 read: "A member of a conspiracy is criminally responsible for the crimes that he or she conspires to commit, no matter which member of the conspiracy commits the crime. [¶] A member of a conspiracy is also criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy. This rule applies even if the act was not intended as part of the original plan. Under this rule, a defendant who is a member of the conspiracy does not need to be present at the time of the act. [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. [¶] A member of a conspiracy is not criminally responsible for the act of another member if that act does not further the common plan or is not a natural and probable consequence of the common plan. [¶] To prove that a defendant is guilty of any of the crimes charged in Counts one, two, and three, under a conspiracy natural and probable consequence theory, the People must prove that: 1. The defendant conspired to commit the crime of disturbing the peace; 2. A member of the conspiracy committed the crime of murder, attempted murder, shooting at [an] occupied motor vehicle, voluntary manslaughter, and attempted voluntary manslaughter, and shooting a firearm in a grossly negligent manner[;] AND 3. The crime of murder, attempted murder, shooting at [an] occupied motor vehicle, voluntary manslaughter, attempted voluntary manslaughter, and shooting a firearm in a grossly negligent manner were natural and probable consequences of the common plan or design of the crime that the defendant conspired to commit."
On appeal, Le contends CALCRIM No. 417 erroneously permitted the jury to convict him of the charged offenses of murder, attempted murder, and shooting at an occupied vehicle, even if the jury concluded an uncharged coconspirator committed only the lesser offenses of voluntary manslaughter, attempted voluntary manslaughter, and shooting a firearm in a grossly negligent manner. It is not reasonably likely the jury applied the instruction in an impermissible manner. At trial, it was undisputed that the shooter, Benjamin, was guilty of murder, attempted murder, and shooting at an occupied vehicle. The prosecutor did not argue that defendants could be convicted of the greater, charged offenses even if Benjamin was guilty of only the lesser included offenses. Indeed, none of the parties argued that Benjamin was guilty of the lesser included offenses of voluntary manslaughter, attempted voluntary manslaughter, or shooting a firearm in a grossly negligent manner. Nor would the evidence have supported such arguments. Based on the evidence and arguments in this case, no reasonable juror could have found Benjamin committed the lesser included offenses and then convict Le of the charged crimes. Le's claim of instructional error concerning CALCRIM No. 417 fails.
B. The court properly instructed the jury on the conspiracy natural and probable consequences theory
Le further asserts "[t]he conspiracy natural and probable consequence theory was an illegal theory," and the court, therefore, erred by instructing the jury on this theory. Extrapolating from part of the reasoning in Chiu, supra, 59 Cal.4th 155, Le contends that "[t]he attenuation between the coconspirators' and perpetrator's mental states is too great to support liability for murder and attempted murder as a coconspirator to the crime of disturbing the peace under the natural and probable consequence doctrine." Again, we reject Le's claim of instructional error.
In Chiu, our Supreme Court held "an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine." (Chiu, supra, 59 Cal.4th at pp. 158-159.) In reaching this conclusion, the Supreme Court noted that the perpetrator's mental state of premeditation and deliberation required for first degree murder "is uniquely subjective and personal." (Id. at p. 166.) The Chiu court then explained that "the connection between the defendant's culpability and the perpetrator's premeditative state is too attenuated to impose aider and abettor liability for first degree murder under the natural and probable consequences doctrine, especially in light of the severe penalty involved and the . . . public policy concern of deterrence." (Ibid.)
In People v. Rivera, supra, 234 Cal.App.4th 1350, the Court of Appeal held that Chiu's reasoning regarding aider and abettor liability for first degree premeditated murder under the natural and probable consequences doctrine applies equally to conspiracy liability for first degree murder under the same doctrine and precludes a coconspirator in an uncharged conspiracy from being convicted of first degree premeditated murder. (Rivera, at p. 1356.) A panel of this court has agreed with Rivera's analysis and holding. (In re Lopez (2016) 246 Cal.App.4th 350, 357.) We do not disagree and assume Chiu's reasoning applies equally to aiders and abettors and uncharged coconspirators prosecuted under the natural and probable consequences doctrine.
Le focuses on this portion of Chiu and contends "the connection between [his] culpability and the perpetrator's mens rea is similarly 'too attenuated' where the target offense is the general intent crime of misdemeanor disturbing the peace and the unintended crime requires the subjective and personal mens rea required for the specific intent crimes of murder and attempted murder." Le's contention, however, ignores or miscomprehends the rest of Chiu's reasoning and holding. In Chiu, the defendant was prosecuted on the theory that he either directly aided and abetted a murder "or he aided and abetted the 'target offense' of assault or of disturbing the peace, the natural and probable consequence of which was murder." (Chiu, supra, 59 Cal.4th at p. 158.) Although the Supreme Court concluded the defendant could not be convicted of first degree murder under the natural and probable consequences doctrine, it held "that punishment for second degree murder is commensurate with a defendant's culpability for aiding and abetting a target crime that would naturally, probably, and foreseeably result in a murder under the natural and probable consequences doctrine." (Id. at p. 166.) Discussing the public policy behind the natural and probable consequences doctrine, the Chiu court explained that "[a] primary rationale for punishing such aiders and abettors—to deter them from aiding or encouraging the commission of offenses—is served by holding them culpable for the perpetrator's commission of the nontarget offense of second degree murder." (Id. at p. 165.)
We recognize that the contention Le raises on appeal was not directly addressed in Chiu. Nevertheless, Chiu provides support for our conclusion that when the theory of liability is that the defendant conspired to commit the target offense of disturbing the peace, there is no rule prohibiting instruction on the natural and probable consequences doctrine. We conclude the court's instruction on the conspiracy natural and probable consequences theory was proper. Nevertheless, as we explain next, Le can petition the superior court under section 1170.95 for vacation of his murder conviction because it was based on the natural and probable consequences doctrine. IV. SENATE BILL NO. 1437
After briefing was completed, the parties were permitted to file supplemental briefs on the impact of Senate Bill 1437 to defendants' convictions for murder and attempted murder. Senate Bill 1437 "was enacted to 'amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.'" (People v. Martinez (2019) 31 Cal.App.5th 719, 723.) Senate Bill 1437 also added section 1170.95, which creates a process through which defendants convicted of murder under a natural and probable consequences theory can file a petition in the superior court for vacation of their murder convictions and resentencing on the remaining counts. (Stats. 2018, ch. 1015, § 4.)
In his supplemental brief, Le contends his convictions for murder and attempted murder must be vacated and the matter remanded for resentencing or a new trial on these charges because they were based on the natural and probable consequences doctrine abrogated by Senate Bill 1437. The Attorney General disagrees. First, the Attorney General argues Le must file a petition in the trial court under section 1170.95 in order to obtain relief from his murder conviction. Second, the Attorney General argues Senate Bill 1437 does not apply to Le's conviction for attempted murder. We agree with the Attorney General on both points.
Several cases have concluded the relief provided by Senate Bill 1437 is not available on direct appeal and that defendants must seek relief from their murder convictions by filing petitions in the sentencing court under section 1170.95. (People v. Martinez, supra, 31 Cal.App.5th at pp. 724-729; People v. Munoz (2019) 39 Cal.App.5th 738, 751-753, review granted Nov. 26, 2019, S258234; People v. Lopez (2019) 38 Cal.App.5th 1087, 1113-1115, review granted Nov. 13, 2019, S258175; People v. Carter (2019) 34 Cal.App.5th 831, 835; People v. Anthony (2019) 32 Cal.App.5th 1102, 1147-1158; People v. Cervantes (2020) 46 Cal.App.5th 213, 220-221.) We agree with the analyses in these cases and Le has not persuaded us to break from the weight of this authority. We conclude Le must use the petitioning process in section 1170.95 to obtain relief from his murder conviction.
We further conclude Senate Bill 1437 does not apply to Le's attempted murder conviction. As Le acknowledges, Senate Bill 1437's provisions only address murder convictions based on the natural and probable consequences theory or felony-murder rule and do not explicitly include convictions for attempted murder. Nevertheless, he contends Senate Bill 1437 must be construed to apply also to attempted murder. Recently, in People v. Dennis (2020) 47 Cal.App.5th 838 (Dennis), a panel of this court addressed the issue and concluded Senate Bill 1437 does not apply to the offense of attempted murder, adopting the reasoning of People v. Lopez, supra, 38 Cal.App.5th 1087, review granted, and People v. Munoz (2019) 39 Cal.App.5th 738, review granted November 26, 2019, S252291, which have "held '[a]s a matter of statutory interpretation, Senate Bill 1437's legislative prohibition of vicarious liability for murder does not, either expressly or impliedly, require elimination of vicarious liability for attempted murder.'" (Dennis, at p. 844.) The Dennis court rejected the reasoning of People v. Medrano (2019) 42 Cal.App.5th 1001, review granted March 11, 2020, S259948, People v. Larios (2019) 42 Cal.App.5th 956, 964-968, review granted February 26, 2020, S259983, and People v. Sanchez (2020) 46 Cal.App.5th 637, premature petition for review filed on April 21, 2020, S261768; three cases in which the Fifth District Court of Appeal has reached a contrary conclusion. (Dennis, at pp. 846-847.) We, likewise, adopt the reasoning in Dennis and conclude Le is not entitled to relief under Senate Bill 1437 for his attempted murder conviction. We recognize our Supreme Court will have the final word as the issue of whether Senate Bill 1437 applies to attempted murder is currently pending before the Court in Lopez, Munoz, Medrano, and Larios. V. SENTENCING ISSUES
A. We remand the matter to provide the court an opportunity to exercise its discretion as to the firearm enhancements.
Sentencing in this case took place prior to the enactment of Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch 682), which gave trial courts discretion to strike or dismiss previously mandatory firearm enhancements. Le requests we remand the case for the trial court to determine whether to exercise its discretion and strike the firearm enhancements imposed on counts 1 through 3. The Attorney General joins in the request. We agree and remand the matter for the court to consider exercising its discretion to strike or dismiss one or more of the firearm enhancements. (See People v. Phung (2018) 25 Cal.App.5th 741, 763 [remanding case of codefendant, who was in the car with Le, to the trial court for the court to exercise its discretion in deciding whether to strike the firearm enhancements after the passage of Senate Bill No. 620].)
B. Remand is appropriate to provide Le an opportunity for a Franklin proceeding.
Le, who turned 18 years old the month before the shooting and received an indeterminate sentence of 40 years to life, argues his case should be remanded to the trial court to permit him "to make a record of mitigating evidence tied to his youth" as contemplated in People v. Franklin, supra, 63 Cal.4th at page 269. We agree.
Under section 3051, Le will be entitled to a youth offender parole hearing during the 25th year of his sentence. (§ 3051, subd. (a)(1), (b)(3).) When determining whether to grant Le parole at that hearing, the Board of Parole Hearings (Board) "shall give great weight to the diminished culpability of youth as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity . . . ." (§ 4801, subd. (c).)
In Franklin, our Supreme Court explained that "[t]he criteria for parole suitability set forth in . . . sections 3051 and 4801 contemplate that the Board's decisionmaking at [a defendant's] eventual parole hearing will be informed by youth-related factors, such as his cognitive ability, character, and social and family background at the time of the offense." (Franklin, supra, 63 Cal.4th at p. 269.) This information may include statements by "'[f]amily members, friends, school personnel, faith leaders, and representatives from community-based organizations with knowledge about the individual before the crime.'" (Id. at p. 283.) Franklin observed that "[a]ssembling such statements 'about the individual before the crime' is typically a task more easily done at or near the time of the juvenile's offense rather than decades later when memories have faded, records may have been lost or destroyed, or family or community members may have relocated or passed away." (Id. at pp. 283-284.) Because the defendant in Franklin was sentenced prior to the passage of sections 3051 and 4801, the Supreme Court remanded the case for the trial court to determine "whether Franklin was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing." (Franklin, at p. 284.) If the trial court determined Franklin had not been provided a sufficient opportunity to make a record, then it was instructed to permit Franklin to "place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise [would be permitted to] put on the record any evidence that demonstrates the juvenile offender's culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors." (Ibid.) The Supreme Court explained the goal of this proceeding "is to provide an opportunity for the parties to make an accurate record of the juvenile offender's characteristics and circumstances at the time of the offense so that the Board, years later, may properly discharge its obligation to 'give great weight to' youth-related factors [citation] in determining whether the offender is 'fit to rejoin society' despite having committed a serious crime 'while he was a child in the eyes of the law.'" (Ibid.)
Le received life sentences on counts 1 through 3 that were statutorily mandated at the time they were imposed. Although Franklin had been decided a year before Le's sentencing, his trial counsel did not prepare a sentencing memorandum nor present materials pertaining to Le's characteristics and circumstances as contemplated by sections 3051 and 4801 and as explained in Franklin. Following his counsel's instructions, Le did not talk to the probation officer, so his probation and sentencing report does not contain any evidence concerning his social background and history. While Le's family members spoke on his behalf at the sentencing hearing, Le's counsel did not present any evidence concerning Le's level of maturity, cognitive ability, or other youth-related factors. At the sentencing hearing, neither Le's counsel nor the court discussed the need for a record of Le's characteristics and circumstances for his future youth offender parole eligibility hearing.
As to count 1, Le was sentenced to a mandatory term of 15 years to life for second degree murder (§ 190, subd. (a)) and a consecutive term of 25 years to life for the firearm enhancement (§ 12022.53). Firearm enhancements of 25 years to life were also imposed on counts 2 and 3.
Initially, the Attorney General contended Le had forfeited his chance to create a record of his youthful characteristics because he failed to request an opportunity to do so at sentencing. The Attorney General's contention finds support in People v. Medrano (2019) 40 Cal.App.5th 961, a decision by our colleagues in Division Two of this district. There, the Court of Appeal found that the defendant, who was sentenced more than one year after Franklin was decided, failed either by choice or inadvertence to exercise his "right to present mitigating youth-related evidence at sentencing." (Medrano, at p. 967.) The Medrano court noted that our Supreme Court had recently held in In re Cook (2019) 7 Cal.5th 439, that a youth offender with a final judgment could file a motion in the trial court under section 1203.01 requesting a Franklin proceeding. Thus, the Medrano court did not remand the case for a Franklin proceeding (Medrano, at p. 967) but affirmed the judgment "without prejudice to [the defendant] filing [such] motion" in the trial court. (Id. at p. 968.)
The Attorney General subsequently changed his mind as to whether Le should be provided an opportunity for a Franklin proceeding. At oral argument, the Attorney General graciously conceded a limited remand to permit Le an opportunity for a Franklin proceeding would be appropriate in this case because Le's case must be remanded for the sentencing court to conduct a hearing to determine whether to exercise its discretion on the firearm enhancements. We agree this distinguishes Le's case from the situation in Medrano. Given the circumstance that we are already remanding Le's case for further proceedings on the firearm enhancements, it is not necessary to require Le to file a motion under section 1203.01 in order to obtain an opportunity for a Franklin proceeding. The more prudent action is to direct the trial court to conduct a Franklin proceeding if circumstances warrant and Le requests one. If the court conducts a Franklin proceeding then both parties should be permitted "to put on the record any relevant evidence that demonstrates [Le's] 'culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors.'" (In re Loza (2018) 27 Cal.App.5th 797, 807.)
We note that at the yet to be held proceedings in the superior court, Le's sentence may be reduced such that it would no longer be necessary for the court to conduct a Franklin proceeding. As discussed ante, we are remanding Le's case for the court to consider whether to exercise its discretion and strike the firearm enhancements, which added indeterminate terms of 25 years to life on counts 1 through 3. We also anticipate that Le will file a petition seeking vacation of his murder conviction and resentencing under section 1170.95, given our holding that he can only obtain such relief in the trial court. If the court finds he is entitled to relief under section 1170.95, Le's murder conviction would be redesignated as disturbing the peace and Le would be resentenced accordingly. (§ 1170.95, subd. (e).) We express no opinion on whether the court should grant a section 1170.95 petition filed by Le or whether or how it should exercise its discretion on the firearm enhancements. We only note that a substantial reduction of Le's sentence in these proceedings would negate his eligibility for a youth offender parole eligibility hearing under section 3051.
C. Le's restitution order should be modified to reflect joint and several liability.
Le and Nguyen were each ordered to pay $8,140.75 in victim restitution to Scottie Bui's family for his funeral expenses. In his opening brief, Nguyen argued the court abused its discretion by failing to impose victim restitution jointly and severally as to his co-appellant, Le, and all codefendants convicted in People v. Doan, et al. (Super. Ct. Orange County, No. 11WF0963) for their involvement in Bui's murder: Elvis Doan, Tien Phuc Phung, Tom Phung, and Alexander Vu Tran. Nguyen requested we modify the judgment in this case to expressly provide that the direct victim restitution order is joint and severable among all of the defendants. Le seemingly joined in this request. The Attorney General is not opposed to modifying the restitution order in this appeal to indicate joint and several liability. We agree with the parties that the direct victim restitution order should be modified to reflect joint and several liability and so direct the court to modify Le's restitution order.
We granted Nguyen's request for judicial notice of the abstracts of judgment and sentencing minute orders for these codefendants.
The Attorney General, however, opposes any request by defendants that we modify the restitution orders for the codefendants not parties to this appeal to also reflect joint and several liability. We do not believe defendants are requesting modification of restitution orders not before us in this appeal.
A trial court is required to order defendants pay restitution to crime victims or their families when the "victim has suffered an economic loss as a result of the defendant's conduct." (§ 1202.4, subd. (f).) When ordering multiple defendants to pay victim restitution, the court has the authority to make the obligation joint and several. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535; People v. Neely (2009) 176 Cal.App.4th 787, 800.)
Multiple defendants have been ordered to pay restitution to Bui's family for his funeral and burial expenses, as they should. Both Elvis Doan and Tom Phung were ordered to pay $8,140.75 in victim restitution to Bui's family. Inexplicably, Tien Phung was only ordered to pay $2,480 in direct victim restitution. The victim restitution orders for both Doan and Tien Phung indicate the obligation is joint and several.
The documents we were provided regarding Alex Tran show only that the court reserved jurisdiction over the issue of victim restitution and do not show the amount of restitution ordered.
While the court ordered Le to pay $8,140.75 in victim restitution, the court's order does not state that the liability is joint and several. We direct the trial court to modify the order that Le pay victim restitution to reflect joint and several liability with codefendants Elvis Doan and Tien Phung.
D. Le's abstract of judgment must be corrected.
The abstract of judgment incorrectly describes Le's conviction in count 3 as discharging a firearm at an "inhabited dwel[ling]" instead of discharging a firearm at an occupied vehicle. We direct the trial court to correct the abstract of judgment to accurately describe Le's convictions in count 3 as discharging a firearm at an "occupied motor vehicle." (See People v. Phung, supra, 25 Cal.App.5th at p. 761 [ordering same correction of codefendant's abstract of judgment].)
Further corrections of Le's abstract of judgment are necessary because it does not accurately state the court's oral pronouncement of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Le's abstract of judgment must be corrected to reflect the court's imposition of a three-year term on count 3 and a term of 25 years to life for the section 12022.53 enhancement on count 3, which was stayed.
The Attorney General contends Le's sentencing minute order fails to reflect the court's oral pronouncement of judgment of 25 years to life on the firearm enhancement for count 3. We disagree. The minute order for Le's sentencing on August 7, 2017, accurately states that the court imposed a term of 25 years to life for the firearm enhancement on count 3. We note the correction of the abstract as to the firearm enhancement may be affected by the court's exercise of its discretion to strike or dismiss that enhancement.
DISPOSITION
As to Ngyuen, the judgment is reversed for insufficient evidence.
As to Le, we reverse his conviction for active gang participation in count 4 for insufficient evidence and strike the term imposed (and stayed) for that conviction. Le's case is remanded for the court to determine whether to exercise its sentencing discretion under section 12022.53, subdivision (h), and if the court does exercise its discretion, to resentence Le accordingly. Also, on remand, the court shall permit the parties to make a record of information relevant to Le's eventual youth offender parole hearing, consistent with this opinion.
The trial court is directed to modify the order for victim restitution filed on August 4, 2017, to state that Le's liability for victim restitution is joint and several with defendants Elvis Doan and Tien Phung.
We also direct the trial court to correct Le's abstract of judgment to reflect: (1) his conviction in count 3 is for discharging a firearm at an occupied motor vehicle; (2) a sentence of three years on count 3; and (3) unless the court exercises its discretion to stay or dismiss the firearm enhancement, a stayed term of 25 years to life for the section 12022.53 enhancement on count 3. The trial court is further directed to forward a certified copy of Le's amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed as to Le.
IKOLA, J. I CONCUR: O'LEARY, P. J. Moore, J., Dissenting.
I respectfully dissent.
A murder is a killing with malice aforethought. (Pen. Code, § 187.) Malice is a deliberate intent to kill (express malice), or a conscious disregard for human life (implied malice). (§ 188.) An attempted murder is an ineffectual act—with malice—that does not result in a death. Until December 31, 2018, malice could be "imputed" to an accomplice who was not the actual killer, or the attempted killer, under the natural and probable consequences doctrine.
Further undesignated statutory references are to the Penal Code. --------
On March 20, 2011, defendants Aaron Trung Nguyen and Anthony Van Le participated and conspired with criminal street gang members (some of them armed) to fight, or to challenge a rival gang to fight outside of an Orange County pool hall. This was sufficient evidence to establish that Nguyen and Le aided and abetted and/or conspired to fight or to "challenge[] another person in a public place to fight." (§ 415, subd. (1).) It was also reasonably foreseeable that when fighting or challenging a rival gang to fight, one of the armed gang members would kill or attempt to kill a rival gang member. Thus, under the natural and probable consequences doctrine, there was sufficient evidence to affirm Nguyen's and Le's convictions for murder, attempted murder, and shooting at an occupied motor vehicle. (§§ 187, subd. (a), 664, 246.)
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015; Senate Bill 1437). The Legislature amended section 188 so that malice can no longer be "imputed" to accomplices under the natural and probable consequences doctrine. (§ 188, subd. (a)(3) ["Malice shall not be imputed to a person based solely on his or her participation in a crime"].) Generally, when the Legislature amends a statute, the change only applies prospectively. But when the change reduces punishment, or has an ameliorative effect, we must apply the statutory change retroactively to defendants whose cases are still on appeal. (In re Estrada (1965) 63 Cal.2d 740, 744 (Estrada).)
Because the crimes of murder and attempted murder require malice, and malice can no longer be "imputed" to accomplices, I would hold that accomplices can no longer be convicted of murder or attempted murder under an imputed malice theory (the natural and probable consequences doctrine). The majority opinion holds that the elimination of imputed malice applies to murder, but not attempted murder. But this interpretation would seem to provide a perverse incentive for accomplices to aid and abet successful murderers, rather than unsuccessful attempted murderers.
This change to statutory law is ameliorative. Therefore, under the Estrada rule, I would also hold that the amendment to section 188 applies retroactively to eligible defendants convicted of attempted murder whose cases are still on appeal.
In short, I would: A) find sufficient evidence to affirm the jury's guilty verdicts as to Nguyen for murder, attempted murder, and shooting at an occupied motor vehicle; and B) reverse Nguyen's and Le's attempted murder convictions. In all other respects, I agree with the majority opinion. However, I would modify the judgment slightly to add that Nguyen (along with Le) can file a section 1170.95 petition to dismiss his murder conviction, which the trial court will be obliged to grant. A. Sufficiency of the Evidence
As to Nguyen, the majority opinion holds that "the evidence was insufficient to support his convictions as either an aider and abettor or a coconspirator under the natural and probable consequences theory." (Maj. opn., ante, p. 23.) I disagree.
In a sufficiency of the evidence review, the word "sufficiency" is a bit of a misnomer. In a criminal case, the word "sufficiency" suggests that an appellate court reviews the trial record to see if there was "enough" evidence for the jury to convict. But that is wrong. We do not judge the persuasiveness of the evidence. An appellate court simply reviews the trial record to see if there was evidence ("reasonable, credible, and of solid value") to support the jury's guilty verdicts (or not); this is essentially a binary analysis. (See People v. Nelson (2011) 51 Cal.4th 198, 210.)
Our role is to "'"examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" (People v. Nelson, supra, 51 Cal.4th at p. 210.)
Further, we cannot second guess as to what happened; we must accept the jury's resolution of the facts. "In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.) This "is generally considered the most difficult standard of review to meet, as it should be, because it is not the function of the reviewing court to determine the facts." (In re Michael G. (2012) 203 Cal.App.4th 580, 589.)
1. Relevant Legal Principles
A person is guilty of disturbing the peace if he "unlawfully fights in a public place or challenges another person in a public place to fight." (§ 415, subd. (1).)
A person aids and abets the commission of a crime when he (1) acts with "knowledge of the unlawful purpose of the perpetrator"; (2) has "the intent or purpose of committing, encouraging, or facilitating the commission of the offense"; and (3) "by act or advice, aids, promotes, encourages or instigates the commission of the crime." (People v. Beeman (1984) 35 Cal.3d 547, 561.) An aider and abettor is liable for crimes that were intentionally aided and abetted (target offenses); generally, an aider and abettor is also liable for any crimes that were unintentional, but were reasonably foreseeable (nontarget offenses). (People v. Laster (1997) 52 Cal.App.4th 1450, 1463-1464.)
A conspiracy is an agreement by two or more persons to commit any crime. (§ 182, subd. (a)(1).) "A conviction for conspiracy requires proof of four elements: (1) an agreement between two or more people, (2) who have the specific intent to agree or conspire to commit an offense, (3) the specific intent to commit that offense, and (4) an overt act committed by one or more of the parties to the agreement for the purpose of carrying out the object of the conspiracy." (People v. Vu (2006) 143 Cal.App.4th 1009, 1024.) "The elements of conspiracy may be proven with circumstantial evidence, 'particularly when those circumstances are the defendant's carrying out the agreed-upon crime.'" (Id. at pp. 1024-1025.) It is not necessary to establish an express agreement, "a criminal conspiracy may be shown by direct or circumstantial evidence that the parties positively or tacitly came to a mutual understanding to accomplish the act and unlawful design." (People v. Brown (1969) 272 Cal.App.2d 623, 628.)
"A member of a conspiracy is criminally responsible for the crimes that he or she conspires to commit, no matter which member of the conspiracy commits the crime. [¶] A member of a conspiracy is also criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of . . . the conspiracy. This rule applies even if the act was not intended as part of the original plan. [[A] defendant who is a member of the conspiracy does not need to be present at the time of the act]." (CALCRIM No. 417.)
2. Relevant Evidence
On the evening of March 20, 2011, Nguyen drove his car to a party at the home of Andrew ("Puffy") T., a member of the Tiny Rascal Gang (TRG). There were other members of TRG at the party, and members of Hellside, a criminal street gang allied with TRG. Power of Vietnamese (POV), Vietnamese Together (VT), and Asian Family (AF) are criminal street gangs allied with each other; these gangs are rivals and enemies of TRG.
Nguyen was at the party with his girlfriend Nina N., who testified at trial under a grant of immunity. At the time of the party, Nina had been dating Nguyen for about a year. Nina said Nguyen was not a gang member, but prior to the party Nguyen had been spending time with gang members and they were a "[b]ad influence" on him. Nina testified that Nguyen previously did things to help out gang members, such as giving them rides.
Le, a TRG member, was also at the party at Puffy's house with his girlfriend, Cynthia S., who also testified at trial under a grant of immunity. Cynthia said that she was in the garage when she heard people talking about a plan to look for rival POV and VT gang members. Cynthia told the police, "'I don't know who said it, but they said that if they found them they would shoot them.'" Before going to the pool hall, Cynthia drove Le to a Hellside gang member's house; that gang member picked up a gun from the house.
Nina testified that she and Nguyen left the party and first went to a park with a few other carloads of people. Nguyen drove his car; in the car were Nina's friend Julie, Alex (a TRG member), and Tony (also a TRG member). Nina testified that CJ, a leader of the TRG, was in another car and spoke to Alex on the phone. Nina said that she overheard CJ telling Alex to follow him. While Nguyen was driving, Alex was discussing chasing and attacking POV, and Tony said, "'We have to follow them, we have to trap them.'" Cell phone records showed that CJ was in telephone contact with Nguyen at 12:17 a.m., 12:30 a.m., and 12:33 a.m.
Nina testified that she overheard Tony directing Nguyen to go to the pool hall. When interviewed by police officers, Nina said that she was in the car when Nguyen drove to the pool hall. Cell phone records showed that Nguyen was in the general vicinity of the pool hall at 1:58 a.m. Nina described CJ's car and Puffy's car being on either side of a white car, while Nguyen and some other cars were chasing the white car. Nina said they were trying to trap the white car, and that Nguyen was driving his car behind the other cars. Nina drew a diagram for the police. Nina testified that Puffy was at the pool hall and left at the same time as Nguyen.
Roger J. testified that he was in a car that tried to leave the pool hall, but it was blocked by other cars. John N. testified that there were cars blocking his car at the pool hall, and they eventually let him out; he said that after cars pulled out of the parking lot he heard gunshots. Based on a 911 call, the shootings occurred at about 2:20 a.m.
The police interviewed Nguyen about a month after the shootings. Nguyen confirmed that he spent time with TRG members, but "I just party with them." Nguyen said, "I saw them fight and never backed any of them up." Nguyen said, "One day I got in trouble for staying at a party where the POVs were there and . . . TRG wanted to beat me up because I was at -- supposedly at a party with, you know, POVs and I didn't even know they were POV."
Nguyen told that police that he heard about the shooting "on the news." Nguyen denied that he was at the park. Nguyen said that he went with Nina to a party at Puffy's house, but after the party he drove to a restaurant. Nguyen said that he did not remember if Tony and Alex were with him in the car. The police asked, "Were you following CJ?" Nguyen said, "Was I following him? No." The police told Nguyen, "That's not what Nina said." Nguyen then said, "I was following a bunch of cars."
The police asked, "Okay. So this night you were at Puffy's with Nina. And after Puffy's, where did you go? Because Nina said you guys all went to the park." Nguyen said, "After that, we just drove around. There were a bunch of cars going around. I was looking for another party and the next thing you know we - - we got lost and we were right in front of [a restaurant]. I remember sitting there." Nguyen continued, "We was there for a long ass time and afterwards, that's when the whole thing happened and afterwards, and honestly, you know, I believe in God. It was like thank God that - - that's the time I got lost and that's when the shooting happened. I was sitting there, in front of the restaurant the whole time, waiting for them."
The police then confronted Nguyen with cell phone records showing "where you were." Nguyen said, "It shows you where I went?" The police said, "Yeah. By your cell phone." Nguyen said, "Where? Where did I go? Honestly, I don't remember most of the part because like - - " The police said, "Selective memory." Nguyen responded, "Yeah."
When the police again told Nguyen, "Nina said you were at the park." Nguyen responded, "Honestly, I don't remember if I was or I was not." When asked, "Was CJ at the park?" Nguyen responded, "The park? Probably. There was like five, six, seven cars there." The police asked, "What were they talking about at the park?" Nguyen responded, "They were just talking about normal - - normal, you know, stuff. Nothing about gangs."
At some point, the police left Nguyen and Nina alone together in an interview room. Nguyen asked Nina what she had told the police. Nguyen told Nina, "But you know the truth. We weren't there, so we're not going to be there. So, how am I going to say otherwise, you know. Did, did you ever say we were there?" Nina said, "I told them I don't remember." Nguyen said, "We weren't there and that's it. Because all the other people could be lying."
At one point, Nguyen said to Nina, "Watch out. They record." The police entered the room and showed Nguyen a diagram that Nina had drawn and when the police left the room, Nguyen said, "Why did you draw that picture, we weren't there?" Nguyen and Nina then began speaking in Vietnamese; Nguyen told Nina, "Say you were at home watching a movie and nothing else." Nguyen said, "We'll say we never heard anything. All we heard afterwards were people talking about it."
3. Application and Analysis
Cynthia's testimony about the plan discussed at the party to locate and shoot rival gang members is circumstantial evidence of a conspiracy to fight or challenge another person to fight in a public place. (§ 415, subd. (1).) Further, the completed crimes of murder, attempted murder, and shooting at an occupied vehicle are circumstantial evidence of the specific intent to commit the conspiracy crime, as well as evidence of the overt act to carry out the conspiracy. (See People v. Vu, supra, 143 Cal.App.4th at p. 1024 [a conspiracy is "(1) an agreement between two or more people, (2) who have the specific intent to agree or conspire to commit an offense, (3) the specific intent to commit that offense, and (4) an overt act committed by one or more of the parties . . . for the purpose of carrying out the object of the conspiracy"].)
Nguyen's admission that he was present at the party is circumstantial evidence that Nguyen was aware of the conspiracy to commit the underlying crime of fighting or challenging other persons to fight in a public place. Further, Nguyen's interview with the police establishing his prior relationships with TRG members is circumstantial evidence that he was knowledgeable of the enmity between TRG and POV, as well as the unlawful purpose of the conspiracy. Moreover, Nina's testimony that Nguyen had helped out TRG members on prior occasions by giving them rides in his car, and her testimony that Nguyen provided a ride to TRG members Alex and Tony to the pool hall is circumstantial evidence that Nguyen intentionally encouraged and facilitated the commission of the crime of fighting or challenging others to fight in a public place. (See People v. Beeman, supra, 35 Cal.3d at p. 561, italics added ["a person aids and abets the commission of a crime when he or she, (1) acting with knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense; (3) by act or advice, aids, promotes, encourages or instigates the commission of the crime"].)
Finally, Nguyen's contradictory accounts of the events and deliberate deceptions to the police, as well as his attempted collusion with Nina to fabricate an alibi story, is further circumstantial evidence of his guilt (in addition to the cell phone records, and lots of other incriminating evidence and testimony).
In sum, there was sufficient circumstantial evidence supporting the jury's determination that Nguyen aided and abetted the target crime (or the conspiracy to commit the target crime), of fighting or challenging another person to fight in a public place. (§ 415, subd. (1).) Further (as the majority apparently agrees), there was sufficient circumstantial evidence for the jury to find that the charged crimes of murder, attempted murder, and shooting at an occupied motor vehicle were a natural and probable consequence of the target crime: "Having reviewed the record, we conclude there was sufficient evidence the charged crimes were the natural and probable consequences of the target crime of disturbing the peace." (Maj. opn., ante, at p. 22.)
Thus, I would find there was sufficient evidence to sustain Nguyen's convictions for murder, attempted murder, and shooting at an occupied motor vehicle.
The majority opinion states: "The appellate record lacks substantial evidence that Nguyen specifically intended to aid and abet TRG and Hellside members in their commission of disturbing the peace." (Maj. opn., ante, at p. 24.) I disagree. Nina's testimony and statements to the police that Nguyen drove Alex and Tony (both TRG members) to the pool hall is circumstantial evidence of Nguyen's intent to aid and abet TRG members in their commission of the crime of fighting, or challenging another person to fight in a public place. (§ 415, subd. (1).)
The majority opinion states: "Nina's statements as to whether they were at the pool hall that night were consistently inconsistent; at times she said they were not there that night and other times she said they were or that she had confused that pool hall with another one when she said they were there." (Maj. opn., ante, at p. 25.) However, it is often the case that witnesses—particularly civilian witnesses in a gang murder case— are "confused" during their trial testimony. I simply cannot make this sort of credibility determination based on a cold trial transcript. This is the province of the jury.
The majority opinion states: "The prosecution presented no evidence, circumstantial or otherwise, that Nguyen intended to be involved in any confrontation or fight between TRG and its rivals." (Maj. opn., ante, at p. 24.) But evidence that Nguyen intended to be personally involved in a confrontation or a fight was entirely unnecessary. It was enough that Nguyen intended to encourage or facilitate the commission of the crime by others. (See People v. Beeman, supra, 35 Cal.3d at p. 561, italics added ["a person aids and abets the commission of a crime when he or she, . . . [has] the intent or purpose of committing, encouraging, or facilitating the commission of the offense"].) In any event, under the conspiracy theory presented to the jury, it was not necessary for Nguyen to be present outside of the pool hall. (See CALCRIM No. 417 ["a defendant who is a member of the conspiracy does not need to be present at the time of the act"].) B. Attempted Murder
Effective in January 2019, the Legislature passed Senate Bill 1437. The Bill enacted a new statute, section 1170.95, which allows eligible accomplices convicted of murder (and only murder) to petition for relief from their convictions. (Stats. 2018, ch. 1015, § 4.) The Bill also amended an existing statute, section 188, which eliminated imputed malice (a concept that applies to both murder and attempted murder). (Stats. 2018, ch. 1015, § 2.)
1. Section 1170.95 does not apply to attempted murder.
I agree with the majority opinion that the Legislature's creation of section 1170.95 does not apply to convictions for crimes other than murder, including attempted murder. (See, e.g., People v. Lopez (2019) 38 Cal.App.5th 1087, 1113-1115, review granted Nov. 13, 2019, S258175.) Therefore, I agree that defendants such as Le and Nguyen cannot use the petitioning process in section 1170.95 to obtain relief from their attempted murder convictions, although they can immediately petition for relief from their murder convictions. (See People v. Martinez (2019) 31 Cal.App.5th 719, 729 [a defendant convicted of murder does not have to wait and fully exhaust his direct appeal before seeking relief under section 1170.95].)
2. The amendment to section 188 does apply to attempted murder.
I disagree with the majority opinion and would hold that the Legislature's amendment to section 188, which eliminated imputed malice does apply to both murder and attempted murder. (See, e.g., People v. Larios (2019) 42 Cal.App.5th 956, 964-968, review granted February 26, 2020, S259983 [amendment of section 188 concerning imputed malice abrogated the natural and probable consequences doctrine as basis for attempted murder conviction]; but see People v. Dennis (2020) 47 Cal.App.5th 838 [defendant liable for attempted murder under the natural and probable consequences doctrine].) Because this precise issue will necessarily be resolved in due course by our Supreme Court, I will only briefly explain my reasoning.
Generally, a murder is an unlawful killing that includes the element of malice: "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." (§ 187, subd. (a).) Malice is either an intent to kill (express malice) or a conscious disregard for human life (implied malice). (§ 188.) "An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (§ 21a.)
A defendant may be convicted of murder (or attempted murder) as a direct perpetrator or an aider and abettor. An aider and abettor can be held liable for crimes that were intentionally aided and abetted (target offenses); an aider and abettor could also be held liable for any crimes that were unintentional, but were reasonably foreseeable (nontarget offenses). (People v. Laster, supra, 52 Cal.App.4th at pp. 1463-1464.) Liability for intentional, target offenses is known as "direct" aider and abettor liability; liability for unintentional, nontarget offenses is known as the ""'natural and probable consequences" doctrine.'" (People v. Montes (1999) 74 Cal.App.4th 1050, 1055.)
When an accomplice was convicted of murder (or attempted murder) under the former natural and probable consequences doctrine, the malice of the perpetrator was imputed to the accomplice. "'We euphemistically may impute the actions of the perpetrator to the accomplice by "agency" doctrine . . . .'" (People v. Prettyman (1996) 14 Cal.4th 248, 259, italics added.) But because of Senate Bill 1437, the Legislature amended section 188 so that malice can no longer be "imputed" to accomplices under the natural and probable consequences doctrine. (§ 188, subd. (a)(3) ["Malice shall not be imputed to a person based solely on his or her participation in a crime"].)
The Legislature's amendment of section 188 does not distinguish between murder and attempted murder. Therefore, I would hold that the Legislature must have intended that the elimination of imputed malice must apply to the crimes of murder and attempted murder. (See People v. Larios, supra, 42 Cal.App.5th at p. 968 ["Because the crime of attempted murder is tethered to the murder statutes, i.e., it does not exist without them, there is no logical basis for applying section 188 to murder and treating the crime of attempted murder as being subject to an impliedly different and unspecified rule of law"].) A contrary interpretation seems absurd as accomplices under the natural and probable consequences theory could figuratively "get away with murder," but they could not get away with attempted murder.
3. The attempted murder convictions should be dismissed retroactively.
Again, I would hold that Le and Nguyen may not obtain relief from their attempted murder convictions under section 1170.95. However, I would dismiss their attempted murder convictions under the Estrada rule in this direct appeal. (See People v. Medrano (2019) 42 Cal.App.5th 1001, 1019, review granted Mar. 11, 2020, S259948, [Senate Bill 1437 "in no way limits retroactive relief to defendants convicted of attempted murder under the natural and probable consequences theory whose convictions are not final. Accordingly, because [defendants] judgments of conviction were not yet final when these amendatory statutes lessening punishment took effect, the amended statutes, not the old statutes in effect when the prohibited acts were committed, apply"].)
MOORE, J.