Opinion
C085638
11-05-2019
In re TONY HOONG, On Habeas Corpus.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16HC00371)
In People v. Chiu (2014) 59 Cal.4th 155 (Chiu), superseded on other issues by Senate Bill No. 1437 as stated in People v. Lopez (2019) 38 Cal.App.5th 1087, 1103, the California Supreme Court held that a defendant may not be convicted of first degree murder predicated on the natural and probable consequences doctrine. At most, that defendant may be convicted of second degree murder. (Id. at p. 166.)
Petitioner Tony Hoong, a coperpetrator with the defendant in Chiu, was convicted of first degree murder for the same murder at issue in Chiu, and the same instruction concerning the natural and probable consequences doctrine was given to Hoong's jury. Although the California Supreme Court's decision in Chiu invalidating that jury instruction was filed after Hoong's appeal from his first degree murder conviction was final (People v. Chiu (Nov. 12, 2008, C050441) [nonpub. opn.]), Hoong is nevertheless entitled to retroactive application of Chiu, supra, 59 Cal.4th 155 in this subsequent habeas corpus proceeding. (In re Lopez (2016) 246 Cal.App.4th 350, 359.)
In considering Hoong's habeas corpus petition, the superior court determined that the natural and probable consequences instruction was erroneous as to first degree murder, but the error was harmless beyond a reasonable doubt because the prosecutor, in closing argument, told the jury the natural and probable consequences doctrine could not support convicting Hoong of first degree murder but only of second degree murder.
This court issued an order to show cause, and we will now order the superior court to vacate Hoong's conviction for first degree murder. Although the prosecutor said in closing argument that the natural and probable consequences doctrine could not support a conviction for first degree murder, the trial court's instructional error allowed application of the natural and probable consequences doctrine to first degree murder and there are circumstances that raise reasonable doubt about whether the jury based its verdict of first degree murder on the natural and probable consequences doctrine. The instructional error was not harmless beyond a reasonable doubt.
BACKGROUND
The facts and procedure leading to this habeas corpus proceeding are not in dispute. We derive a summary of the facts from this court's opinion in People v. Chiu, supra, C050441.
Hoong, along with Bobby Chiu and Rickie Che, gathered outside an Internet cafe where they had heard there might be a fight. After Chiu made a rude remark about a girl, a fight broke out between one group (including Hoong, Chiu, and Che) and another group. Che threw the first punch, hitting the eventual murder victim, Roberto Treadway, in the side of the head.
As the fight was not going well for Hoong's outnumbered group, someone, possibly Chiu, yelled to Che to get the "strap," or gun. Che went to a car to get the gun. Some members of the opposing group tried to leave, but Hoong, swinging a knife, blocked Treadway's path of escape and stabbed Treadway in the arm. A member of Hoong's group, possibly Chiu, urged Che to use the gun, and Che fired at the fleeing Treadway, shooting him fatally in the back of the head. The gunshot was the sole cause of Treadway's death.
Chiu and Hoong were tried together, resulting in jury verdicts of first degree murder against each of them. Chiu and Hoong both appealed. This court reversed Chiu's first degree murder conviction and remanded for a new trial, but it affirmed Hoong's first degree murder conviction. On retrial, Chiu was again convicted of first degree murder. Although this court affirmed the judgment, the California Supreme Court reversed in Chiu, supra, 59 Cal.4th 155, holding for the first time that a conviction for first degree murder cannot be predicated on the natural and probable consequences doctrine. (Id. at p. 166.)
DISCUSSION
Hoong contends the jury instructions in his case had the same defect as in Chiu, supra, 59 Cal.4th 155. The trial court instructed the jury that it could find Hoong guilty of murder under the natural and probable consequences doctrine. Additionally, the trial court instructed the jury that, if it determined Hoong committed murder, it had to then determine whether it was first degree or second degree murder.
Because Hoong was not the shooter, the trial court instructed the jury on two theories of aiding and abetting: (1) direct aiding and abetting, requiring the jury to find the defendant intended to aid and abet murder, and (2) aiding and abetting under the natural and probable consequences doctrine. The latter instruction allowed the jury to conclude Hoong aided and abetted Che in committing the murder because Hoong intended to aid and abet Che's assault or disturbing the peace, and murder was the natural and probable consequence of the assault or disturbing the peace. Therefore, the jury was allowed to conclude Hoong aided and abetted a murder under the natural and probable consequences doctrine.
Once the jury concluded Hoong committed murder, it was required to determine whether the murder was first degree or second degree murder. (Chiu, supra, 59 Cal.4th at pp. 160-161.) The jury found Hoong guilty of first degree murder, but the theory was not specified. Therefore, the jury either found Hoong directly aided and abetted a first degree murder intending for Che to murder Treadway (a valid theory) or found Hoong intended to aid and abet an assault or disturbing the peace the natural and probable consequence of which was first degree murder (an invalid theory under Chiu, at p. 166).
Because the jury instructions allowed the jury to rely on an invalid theory to convict of first degree murder, the "first degree murder conviction must be reversed unless we conclude beyond a reasonable doubt that the jury based its verdict on the legally valid theory that defendant directly aided and abetted the premeditated murder." (Chiu, supra, 59 Cal.4th at p. 167; see In re Martinez (2017) 3 Cal.5th 1216, 1225 [same harmless error standard applies in habeas corpus proceeding].) In determining whether the instructional error is harmless beyond a reasonable doubt, we consider the entire record, including the arguments of counsel, to determine whether there is a reasonable possibility the erroneous jury instructions contributed to the verdict. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 711]; People v. Reese (2017) 2 Cal.5th 660, 671.)
The People argue, and the superior court held, that the erroneous instructions were harmless beyond a reasonable doubt because the prosecutor, in closing argument, expressed the opinion that reliance on the natural and probable consequences doctrine could only support a second degree murder conviction. According to the People and the superior court, if the jury adopted the prosecutor's argument that a first degree murder conviction could not be predicated on the natural and probable consequences doctrine, the jury necessarily found Hoong guilty of first degree murder on a direct aiding and abetting theory. While this reasoning is logical, other circumstances indicate the jury rejected the prosecutor's guidance, and those circumstances cast doubt on whether the jury found Hoong guilty of first degree murder based solely on direct aiding and abetting and not on the natural and probable consequences doctrine.
The jury instructions did not preclude reliance on the natural and probable consequences doctrine to support a first degree murder conviction. A jury must follow the instructions of the trial court, but it is not equally bound by the arguments of counsel. (People v. Valdez (2004) 32 Cal.4th 73, 114, fn. 14.) While the instruction on natural and probable consequences permitted the jury to conclude that murder was a natural and probable consequence of assault or disturbing the peace, the instruction did not give the jury guidance on the degree of murder. The instruction did not limit the application of the natural and probable consequences doctrine to second degree murder. Therefore, although the prosecutor's argument suggested limiting the application of the natural and probable consequences doctrine to second degree murder, it remained possible for the jury, following the trial court's instructions, to convict Hoong of first degree murder predicated upon the natural and probable consequences doctrine. Certainly we may consider the arguments of counsel when determining whether an omission in the jury instructions was harmless beyond a reasonable doubt. (People v. Visciotti (1992) 2 Cal.4th 1, 59 [failure to instruct jury that attempted murder requires intent to kill cured by prosecutor's argument].) However, in this case, the defect in the jury instructions (the failure to limit the natural and probable consequences doctrine to second degree murder) was not the only circumstance that casts doubt on whether the error was harmless. And this was not merely an omission; instead, the jury instructions expressly allowed the jury to take an improper path to convicting Hoong of first degree murder.
Moreover, the prosecutor's closing argument with respect to first degree murder raises further doubt about whether the jury relied on a direct aiding and abetting theory to convict Hoong of first degree murder. In closing, the prosecutor argued: "At the very least this is second-degree murder. I would indicate to you for Tony Hoong there is a lack of evidence to get him to first-degree murder. There just is. There is not the preoffense statements. . . . When you are swinging a knife, you are clearly guilty of second-degree murder." This frank concession by the prosecutor does not engender confidence that the jury did not base its first degree murder conviction on the natural and probable consequences doctrine. Although the prosecutor argued the jury could only get to first degree murder in this case on a direct aiding and abetting theory, the prosecutor also argued the evidence was not sufficient to convict Hoong of first degree murder. The jury nevertheless convicted defendant of first degree murder.
As this court already acknowledged in its decision on direct appellate review of Hoong's conviction, the jury could have relied on the natural and probable consequences doctrine in convicting Hoong of first degree murder. This court wrote: "The prosecutor had not pursued the [direct aiding and abetting] theory as to defendant Hoong, believing that he was guilty at most of second degree murder as a consequential offense of either of the intended misdemeanors. The jury, however, apparently was of a different opinion either as to the extent of defendant Hoong's complicity in a premeditated murder, or the degree of murder that was a consequential offense of the misdemeanors." This court determined that Hoong's first degree murder conviction was intact under either theory.
In summary, the trial court's jury instructions allowed the jury to convict Hoong of first degree murder based on the natural and probable consequences doctrine. While there was some evidence the jury may have relied solely on a theory of direct aiding and abetting to convict Hoong of first degree murder, other circumstances cast reasonable doubt on the conclusion that the jury did not rely on the natural and probable consequences doctrine to convict Hoong of first degree murder. Accordingly, because we cannot say that the trial court's instructions were harmless beyond a reasonable doubt, relief must be granted. The appropriate remedy under these circumstances is to vacate the first degree murder conviction and give the prosecution the option of retrying Hoong on that charge or, alternatively, allowing the prosecution to agree to a reduction of the conviction to second degree murder. (In re Martinez, supra, 3 Cal.5th at p. 1227.)
DISPOSITION
The petition for a writ of habeas corpus is granted insofar as it seeks relief from the conviction for first degree murder. The conviction for first degree murder is vacated. In accordance with Chiu, supra, 59 Cal.4th 155, this matter is remanded to the trial court with directions to allow the People to accept a reduction of the conviction to second degree murder, or to elect to retry Hoong for first degree murder under a theory or theories other than natural and probable consequences. If the People accept the reduction of the conviction, then Hoong shall be resentenced. To the extent the petition for writ of habeas corpus seeks other relief, it is denied.
/S/_________
MAURO, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
ROBIE, J.