Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03F08566
DAVIS, J.
At a joint trial, a jury found defendants Bobby Chiu and Tony Cong Hoong guilty of first degree murder. It also sustained enhancement allegations that they committed the crime in association with a criminal gang, and a principal’s personal use of a firearm in the crime, resulting in great bodily injury. Staying the imposition of sentence on the gang enhancements, the trial court sentenced them to state prison for a minimum indeterminate life term of 50 years.
Neither defendant was the actual shooter of the victim. The prosecution advanced alternative theories of derivative liability under which at least defendant Chiu encouraged an intended premeditated murder, or both participated in intended misdemeanors (simple assault or fighting in public) with the consequential offense of murder. As a result, they make lengthy arguments regarding the absence of more extensive instructions on defense of self or others (as either complete justification or mitigation), and the propriety of permitting accomplice liability for the murder conviction or the gun enhancement if the intended offenses were only misdemeanors. They also challenge (in divergent ways) the sufficiency of the evidence to support the murder verdict. They contend that the admission of hearsay evidence to prove the gang enhancement violated their right of confrontation; that the evidence was insufficient to support the gang enhancement; and (as to defendant Hoong) that the trial court abused its discretion in allowing the use of superfluous proof of the necessary predicate crimes for that enhancement. They criticize the trial court’s use of the instruction on the role of motive. Finally, they attempt to assign prosecutorial misconduct for the first time on appeal.
We will use this shorthand expression in place of the more cumbersome term of art describing derivative liability for an offense that is the “natural and probable” consequence (or one of the other variations on the phrase (see People v. Coffman and Marlow (2004) 34 Cal.4th 1, 107)) of an intended offense.
The prosecutor had not pursued the first 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.
Both defendants have joined in each others’ arguments, so we will not distinguish between them in the Discussion except where necessary.
Under compulsion of the far-reaching duty that our Supreme Court has fashioned to instruct on lesser offenses sua sponte, we must reverse the murder conviction of defendant Chiu and vacate the related enhancements. We also find the evidence is insufficient to support either enhancement as to defendant Hoong. We otherwise affirm the judgment as to defendant Hoong.
Facts
We confine ourselves at present to the facts involving the substantive offense. We will incorporate the facts that relate to the gang enhancement in part V of the Discussion.
On the night before the fatal shooting, Macson was involved in an exchange of instant messages on his computer with Sarn. The former was Laotian and bore the indicia of a gang of Laotian nationality, but claimed these were simply a matter of ethnic pride (and no one else suggested that he had any affiliation with any gang). The latter was Mien, and was associated with a group of fellow nationals who claimed Crip affiliation. The dispute between them, however, did not have any basis in gang rivalry. Rather, each of the boys was allied with opposite sides in a dispute between two girls. Sarn challenged Macson to meet on the next day at an Internet café near their high school for a fight. Sarn asserted that he would show up with a gun and gang cohorts. Sarn threatened to shoot Macson if he failed to show up, and to shoot Macson’s father if he intervened. (Macson’s father owned the pizzeria next to the Internet café.) Macson told Sarn that even though he came from a good neighborhood, he could get some friends to support him in a fight as well.
We will attempt to preserve the anonymity of those involved in this offense as much as possible, but where necessary we will make use of first names alone.
Even though Macson (who had known Sarn for a few years and had been friends with him up to this point) thought Sarn was all bluff, he was somewhat concerned. He phoned two of his friends, one of whom was Simon. He relayed the threats from Sarn, seeking Simon’s help and advice. At trial, he was initially somewhat equivocal about the assistance he sought from Simon, but he eventually acknowledged that he wanted Simon to be there in case the fight turned out to be more than just mano-a-mano. Simon was vague about whether he would be there.
Macson spoke with a number of people about the possibly impending fight. After school let out, he walked over to the nearby intersection at which the Internet café and pizzeria were located, an area frequented with all sorts of teenagers. On this afternoon, however, there were an unusually large number of Latinos wearing red. (To him, it seemed obvious that they were displaying an affiliation with the Bloods). Ordinarily, they would gather at another pizzeria across the street. There were also a number of the Asians who usually frequented the Internet café, which is where Macson socialized with Simon and defendants. Sarn had skipped school, and Macson was fairly certain at this point that Sarn was not going to show up, but he lingered to make sure that he was not accused of being a no-show. He spoke to his father in the pizzeria, then came out and saw Simon. He spoke briefly with him, letting him know the fight would not take place. He saw defendant Chiu, but did not speak with him. He heard people discussing the possibility of a fight, and had people ask him what was going on between him and Sarn. He decided to leave because it was time for one of the pizza deliverymen to drive him and his cousins home.
One of them, an acquaintance of both Macson and the victim, testified that Macson said he would be bringing friends who had a gun because Sarn had threatened to bring a gun.
Macson did not know Rickie Che, the actual shooter, and did not notice if he was also there. He did not remember if he saw defendant Hoong, whom he knew only from the Internet café.
Sarn asserted that he had not intended anything more than “trash talk.” He admitted failing to show up for the fight because he was afraid of Macson’s rumored acquaintance with members of a Chinese gang known for its violent ways (even though Macson could not himself be a member because he was Laotian).
As an indication of the degree to which Macson may actually have believed in the likelihood of firearm use, when the car soon afterward passed police cars speeding the other way back toward the pizzeria, he asked the driver to turn around in order to make sure that Sarn had not shown up and shot his father. He found his father unharmed, who sent him back home.
Our focus now switches to Simon. On the evening after the shooting, a detective had intercepted a car driving Simon away from his home; the driver was a resident of Magalia. The driver denied being a member of the Chinese gang, but gave the detective the impression that he had intimate knowledge of the gang’s operations; in discussing these, he would occasionally lapse into the first person plural. The detective and Simon’s probation officer both questioned Simon about the shooting over the course of several hours. Simon testified under a grant of use immunity, and the jury also viewed the lengthy videotape of his interrogation.
At trial, Simon denied speaking with Macson on the evening before the shooting about Sarn’s threats. He claimed to have heard about it only through an Internet chat room, where some people were discussing the possibility that Sarn, “the Mien kid,” would show up with some friends for a fight in which he might use a gun on the “pizza guy’s dad.” He did not take the rumor seriously, but had his sister drop him off at the location only out of curiosity, not out of any intent to assist Macson. He had asked defendant Chiu that morning if he had heard about the fight that was supposed to take place at the Internet café where they usually went on a daily basis, and defendant Chiu indicated that he had heard about it in some fashion or other. Simon did not talk at any point with defendant Hoong (whom he claimed that he barely knew). After his sister dropped him off, he went into the Internet café. When he came out, he saw defendants and Rickie Che sitting on the trunk of a car. He greeted a Vietnamese girl named Teresa that he had known since middle school. After a brief conversation with her (during which, according to Teresa, he mentioned that he was there to back up a friend in a possible fight), he went and sat in front of the Internet café to smoke a cigarette. He had not talked with anyone about the need to bring a gun to the possible fight, and had never seen Rickie Che fire a gun.
In his interrogation, however, Simon stated that Macson had called him and defendants on the night before the shooting. Simon said to Macson that he might show up if not otherwise busy. The next day at school, defendant Chiu mentioned getting a call from Macson. Defendant Chiu had been planning to go over to the Internet café anyway, but Simon did not have any intention of joining him. However, while his sister was driving him home from school, he had a change of heart in case “the Mien kid does go crazy.”
Macson denied calling defendant Chiu or even having his phone number. However, defendant Chiu had been friends since middle school with Macson and his younger brother (who was defendant Chiu’s age), and an older Chiu brother was friends with Macson’s older sister.
Defendant Chiu testified. A girl had phoned him on the night before the shooting to tell him about the possible fight between Macson and Sarn. He did not speak to anyone else that night. Knowing both parties, he did not take the threat of gunplay seriously. The next day, he asked Simon if he was going to the Internet café, their usual destination after school. Simon said he had not planned to go, and asked if defendant Chiu had “heard about it.” Defendant Chiu took this as a reference to the Macson/Sarn fight, and indicated that he was aware of it. They did not discuss the need to back up Macson in the fight. Defendant Chiu also told another friend at school about the impending fight, but did not think that he would have said anything about the potential for gunplay. (The friend’s recollection at trial, however, was that defendant Chiu specifically urged him to attend because an unnamed friend might shoot if he got pressured.) Because Simon was not going to the Internet café, defendant Chiu did not want to ask him for a ride. He called defendant Hoong instead (who attended a different school), who said that Rickie Che was giving him a ride and would come get him. The three drove over to the Internet café without any discussion about the impending fight. Defendant Chiu was not aware of any weapons in their possession, nor had he ever been aware that Rickie Che would carry a gun. They parked the car on the curb just south of the pizzeria, facing west on the cross-street, and sat on the trunk. Defendant Chiu was surprised to see Simon was present, the latter having said that he was not coming. He noticed Macson in the crowd after school let out.
Unlike Simon, defendant Chiu had an attorney at the time he surrendered to police custody, and did not make any pretrial statements on advice of counsel.
The reluctant friend had not volunteered this information, intending to keep it to himself. He had shared this secret with his sister, who had been the victim of a shooting that the Chinese gang was suspected of committing (mistaking her car for that of a rival’s); the sister passed the information along to the detective investigating her case.
Rickie Che and his brother, Denny, were respectively two and four years older than defendant Chiu, and were friends of the Chiu brothers. Rickie Che had never previously given defendant Chiu a ride after school.
According to defendant Chiu, he noticed Teresa talking to some girlfriends and intended to attract her attention by imitating her voice in falsetto. This incensed Teresa, which in turn caught the attention of her longtime boyfriend nearby, who then confronted defendant Chiu; the latter then made a rude remark about Teresa’s breasts (“nice rack”). Defendant Chiu claimed he had been unaware of the boyfriend’s connection with Teresa, but did know him by sight from around school. The accounts of what exactly happened thereafter at the two loci of the battle predictably vary. The posturing between the two boys might have ended without incident, except that out of the corner of his eye, defendant Chiu claimed that he noticed someone throwing a punch at one of his companions, who had come up to support him. (According to Teresa, Joshua, the boyfriend, and other witnesses, the victim had also come to the boyfriend’s side to support him when defendant Hoong and Rickie Che came up in support of defendant Chiu; it appeared to them that Rickie Che threw the first punch at the victim, hitting him and triggering what followed.) In any event, defendant Chiu decided the fight was on and rushed at the boyfriend. It is unclear whether he or the boyfriend threw the first blow at the other; however, both wound up on the ground.
The boyfriend was there to socialize with Latino friends from his nearby former high school (he was then attending the same continuation school as defendant Chiu). He believed it would be fair to describe him and his friends as appearing to be Latino Bloods, but he denied that their gathering had any gang-related purpose.
A week earlier, defendant Chiu and Simon had started a fight at the same location when defendant Chiu had mouthed off to a girl. He denied any intention of provoking fights with rude comments to girls.
Both denied any history of animosity between them. In his pretrial statement, Simon claimed that defendant Chiu pointed out the boyfriend as a “[mother-fucker]” he had a “funk with” (at a point in the interrogation when Simon had yet to admit that the remark to Teresa led to the fight), but Simon repudiated this response at trial.
Both the victim, Roberto Treadway, and Joshua were part of the boyfriend’s circle of Latino friends (Teresa describing Joshua as “look[ing] black more.” Joshua considered the victim to be almost a cousin, and the boyfriend was Joshua’s “homey.”
In the fight between defendant Chiu and the boyfriend, Simon claimed he had at first intended only to be a bystander until he was knocked down by an unknown assailant. He got quickly to his feet to attempt to assist defendant Chiu, whom he claimed was being overwhelmed by a crowd of 10-15 of the Latino group. He was not focused on what was happening with Rickie Che and defendant Hoong.
Teresa recalled only the boyfriend’s female cousin coming to his aid, who hit defendant Chiu repeatedly on the side of his head until he fell, giving the boyfriend time to stand up. She was focused only on what was happening with the boyfriend.
The boyfriend also was focused only on his antagonist once the fight began. He mentioned only his female cousin and one other Latino friend hitting defendant Chiu. Eventually, the boyfriend was able to knee defendant Chiu in the face.
The female cousin testified to hitting defendant Chiu. When the other Latino friend and Joshua came to the boyfriend’s aid, she backed off. She noticed the largest of the Asians (which would be defendant Hoong) swinging a knife at the victim.
Joshua stated that Rickie Che threw the first punch at the victim’s head after the victim challenged him for giving him a “hard” stare. Joshua at first came to the boyfriend’s aid, walloping defendant Chiu in the back of the head. He then joined the fray taking place between the victim, Rickie Che, defendant Hoong, and others. He exchanged punches with defendant Hoong, while the victim fought with Rickie Che. He recalled that one of his Latino friends ran around and hit defendant Hoong from the other side; there were greater numbers on the Latino side than the Asian side, but Joshua did not otherwise specify the participants. After a couple of minutes, he urged the boyfriend, his female cousin, and the victim to get going before the police arrived. Joshua heard defendant Chiu shout at Rickie Che to get the “strap,” a slang term for a firearm. He and the victim broke off their fight and turned to leave. Rickie Che went over to the car. As the victim and Joshua began to follow after the boyfriend and the female cousin down the cross-street to the west, defendant Hoong blocked their path. He swung a small knife at the victim, stabbing him in the arm as the victim attempted to get around him. As they began to run after the others, Joshua heard people who were not involved in the fighting call out a warning that Rickie Che had a gun. Joshua did not mention anything in his testimony about hearing anyone urging Rickie Che to shoot.
Joshua was adamant at trial that regardless of whether he used the word “gun” or “strap” (which for him have indistinguishable connotations) in his pretrial statement to police, he was certain that defendant Chiu used the slang term.
Another witness saw the largest of the Asians wielding a knife, but did not actually see him stab the victim.
According to Teresa, she did not recall defendant Chiu and the boyfriend shouting anything at each other. As she was watching them, she heard someone somewhere else in the crowd shout a warning about a gun. She fled with her girlfriend toward a nearby light-rail station. As they ran up the street, they heard a gunshot behind them.
The boyfriend heard an unfamiliar voice cautioning about a gun. He had been using fight words during his battle with defendant Chiu, and he did not recall any other comments about guns until then. At the mention of a gun, the two broke off their fight and looked around. The boyfriend saw Rickie Che pointing the gun at him and telling him to run. The boyfriend was more than happy to comply with the command. He fled west down the cross-street and heard a shot behind him.
The female cousin recalled that it was the boyfriend who shouted a warning about the gun. She also claimed to have heard what she assumed to have been one of the Asians urging the use of the gun, but she was not sure who it was. Two other bystanders concurred in hearing one of the Asians urge the use of the gun, but also were not able to specify which Asian; one of them, however, was certain that it was an Asian near the shooter and not defendant Chiu, who was still engaged in fighting with the boyfriend and others (this bystander had not heard any warning about the gun).
After Simon had hit the ground for the third time in the fight, he saw Rickie Che running to the car and heard someone shout the warning about the gun and then heard a gunshot. He assumed one of the Latinos had fired a gun, but he then saw Rickie Che stick a black object into his waistband as he ran back to the car. He never heard anyone urging the use of the gun.
His testimony was confusing on the sequence of these two events, but in his pretrial statement--just after first admitting that he was aware Rickie Che shot the victim--he was clear that the warning came first.
In his pretrial statement, he did not dispute the possibility that either the defendants or Macson (who was not even present) might have urged Rickie Che to shoot.
In the midst of his fight with the boyfriend, defendant Chiu noticed the former began to struggle to break away and run off after he was able to shake loose. Defendant Chiu then turned and noticed Rickie Che holding a gun. Neither he nor the boyfriend had said anything about guns (or straps) during their fight, nor had he heard anyone else say anything about a gun (either as a warning or as a provocation for its use).
There was at least unanimity about the fatal event. After retrieving a gun from his car, Rickie Che fired at the victim as he was running down the cross-street with Joshua. The gunshot wound to the back of his head was instantly fatal. The knife wound in the front of his upper left arm had not damaged any major blood vessels.
According to Simon, the gunshot had not deterred some of those lying on the ground near defendant Chiu from continuing to throw punches. Simon was able anyway to help defendant Chiu to his feet and walk to Rickie Che’s car, in which defendants and Simon drove off. No one spoke in the car about what happened. Rickie Che first dropped off Simon at his nearby home, and then defendant Chiu.
As earlier noted, the police intercepted an effort to spirit Simon away. Defendant Chiu, however, accepted a ride from two unidentified men who had phoned his home. He did not know their names, but recognized them as associates of Rickie Che. This was a better alternative than sitting around his home worrying about his association with the shooter. South of Elk Grove, they stopped to eat, where defendant Hoong joined their company. Thereafter, they drove to an unknown location (later revealed to have been somewhere in Alameda), where they stayed for about a week. Defendant Chiu’s brother phoned him to say that his prospects did not look good at home. After contacting a lawyer, defendant Chiu arranged to return home in order to surrender himself.
Discussion
I
During the conference on jury instructions, the trial court indicated its tentative decision to refuse to instruct on the concepts of reasonable or unreasonable self-defense except in connection with the target misdemeanor of simple assault (where it instructed the jury only on the principles of the use of ordinary force in reasonable self-defense). Defendant Chiu’s attorney stated that he did not want any other instructions on self-defense, but did not elaborate on his reasoning. On behalf of absent counsel for defendant Hoong, he lodged a request for the additional self-defense instructions, which the court denied.
As we noted in the beginning of this opinion, the prosecution’s closing argument contended that defendant Chiu encouraged Rickie Che to commit first degree murder, emphasizing the evidence that defendant Chiu was aware Rickie Che was armed and likely to fire his gun at opponents in a fight and that Joshua heard him tell Rickie Che to get the gun. Alternatively, he argued that both defendants were guilty of second degree murder as a consequential offense under the circumstances of the target misdemeanors. To the extent the prosecutor addressed the self-defense instruction connected with the latter theory, he asserted that defendant Chiu could not have called for the gun in order to defend himself from the beating he was receiving because he and his friends had initiated the fight.
The prosecutor apparently ignored the evidence that three of the witnesses heard one or more Asians encouraging Rickie Che to shoot, and one of these witnesses was sure that it was someone other than defendant Chiu who was near Rickie Che (which would be defendant Hoong). This would be a reasonable basis for the jury to conclude nonetheless that defendant Hoong had also encouraged a first degree murder. We therefore reject the claim that the evidence is insufficient to convict defendant Hoong under a theory of encouraging an intended shooting.
In closing argument, counsel for defendant Chiu asserted that his client did not have any knowledge of the presence of Ricky Che’s gun, and that Joshua’s testimony about his client directing Ricky Che to get it was not corroborated by anyone else and not worthy of belief. He noted that the opponents had broken off the fight with him and were fleeing when they saw the gun. Counsel for defendant Hoong argued that there was an absence of any evidence that his client even knew about the intended fight or agreed to participate in it, let alone that defendant Chiu would provoke a different group of people and Rickie Che would start the fight, or that the latter had a gun with him that he would use. He also contended that a death was not a reasonable consequence of a fight among the teenagers. To the extent he raised self-defense at all, it was to argue that his client’s use of the knife was to ward off his own attackers, not to encourage or assist Rickie Che.
On appeal, defendants argue that the court erred in refusing to instruct on self-defense (reasonable or not). They also argue the court erred in failing to instruct sua sponte on those alternatives in the context of defense of others.
A
Liability as an accomplice for an intended offense based on the actions of another confederate requires knowledge of the confederate’s purpose and an intent to aid or encourage that purpose. (People v. Lee (2003) 31 Cal.4th 613, 623-624.) This “derivative” liability for an intended offense combines liability for the confederate’s acts with the accomplice’s acts and mental states. (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) There is a limitation on the sense in which this criminal liability is derivative: accomplices are liable for a confederate’s acts, but are liable only for their own mental state. (McCoy, supra, 25 Cal.4th at pp. 1118-1119.) As a result, this means in the context of an intended homicide that an accomplice and a confederate can be guilty of different degrees based on their mental state (or divergent verdicts of guilt and acquittal based on defenses personal to each). (Id. at pp. 1119-1120.)
Therefore, under the prosecution theory of an intended homicide, defendants in theory could assert that they had a fully justified or less culpable mental state than Rickie Che. As we shall show, the absence of evidence worthy of consideration to support a theory of reasonable self-defense (or more accurately, Rickie Che acting in defense of his accomplice) foreclosed its application to either defendant. However, there is evidence permitting defendant Chiu to be convicted of only the lesser offense of voluntary manslaughter based on an unreasonable belief in the need for another to defend him with deadly force. As the trial court failed to provide instructions defining this principle sua sponte, we must reverse defendant Chiu’s murder conviction (and vacate the related enhancements) because it is reasonably probable that a properly instructed jury would convict him of only the lesser offense. (People v. Breverman (1998) 19 Cal.4th 142, 158-159, 162, 178.) As for defendant Hoong, however, there is no evidence worthy of consideration in support of this lesser offense, and therefore the court did not have a duty to instruct on it sua sponte as to him.
An aggressor or a mutual combatant must retreat and communicate withdrawal from the fight before being entitled to assert any form of self-defense; the exception is where a simple assault is met with deadly or other “excessive” force that is too sudden to permit safe retreat and withdrawal, at which point the defendant may employ deadly force in self-defense. (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, § 75, pp. 409-410; People v. Hecker (1895) 109 Cal. 451, 464; People v. Vasquez (2006) 136 Cal.App.4th 1176, 1179-1180 [error to fail to instruct on this principle merely because defendant was initial aggressor]; People v. Quach (2004) 116 Cal.App.4th 294, 301-302 [same].) Force is excessive where it is unreasonable under the circumstances. (1 Witkin & Epstein, Cal. Criminal Law, supra,§ 72(2), p. 407; People v. Randle (2005) 35 Cal.4th 987, 1002-1003 [beating exceeded that which was necessary to respond to trespass to property, and continued after property retrieved; “aggressor” defendant thus entitled to act with deadly force in defense of accomplice].) The justification for resort to deadly force has narrowed over the years, so that the right presently arises only where strictly necessary. (See People v. Hardin (2000) 85 Cal.App.4th 625, 632-633.) The right to employ deadly force in self-defense also ceases once a belief in imminent deadly peril is no longer reasonable. (Id. at p. 634, fn. 7; People v. Gleghorn (1987) 193 Cal.App.3d 196, 202.) An unreasonable resort to self-defense is subject to the same principles as true self-defense. (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1 [applying basic principle foreclosing aggressor from asserting this theory].)
Under these principles, there is an absolute absence of any evidence that defendant Hoong, at the time he may have encouraged Rickie Che to shoot, could have been acting under a reasonable or unreasonable belief in the need to defend either himself or defendant Chiu. Confronted with the gun, their opponents were all retreating. There could not be any necessity at that point to actually employ the threatened deadly force. As a result, the theories were not available to defendant Hoong at trial.
Defendant Chiu presents a closer question. He contends that because he incurred the great bodily injury of a broken nose and had a greater number of opponents responding to his fight with the boyfriend, he was at least entitled to believe subjectively in the need to call for Rickie Che to employ deadly force in his defense even if that was unreasonable (no witness attributing to him the unreasonable incitements for Rickie Che to shoot at the retreating opponents). However, the broken nose was the result of his mutual combat with the boyfriend, who did not employ excessive force in inflicting the injury (indeed, any of the boyfriend’s swinging parts could have had the same result). The evidence otherwise shows only three others came to the aid of the boyfriend, two of whom (the female cousin and Joshua) quickly retreated after the boyfriend was able to assert himself against defendant Chiu with the assistance of his Latino friend. Not only did defendant Chiu deny asking Rickie Che to get a gun, he did not testify that he felt any subjective fear that he would experience excessive force at the hands of the opponents who outnumbered him before the boyfriend broke off at the sight of the gun. On these facts, deadly force in self-defense was not reasonably available to a mutual combatant as a matter of strict necessity. However, if the jury believed the prosecution’s evidence that defendant Chiu requested Rickie Che to retrieve the gun, conflicting inferences arise. Either defendant Chiu was seeking retaliation against his opponents for the injuries they had inflicted on him, or he could have been seeking unreasonably for Rickie Che to employ deadly force in his defense. Even though this theory would have been contrary to his testimony and the apparent theory of his case, the trial court had the duty to instruct on the lesser offense even over the objection of his attorney because the evidence is more than minimal. (People v. Barton (1995) 12 Cal.4th 186, 195, 201 (Barton).) Regardless of whether we find the defense plausible, a jury must be given the occasion to evaluate it on retrial.
If a court accedes to defense counsel’s objection to an instruction on a lesser offense, however, the doctrine of invited error forecloses the issue on appeal. (Barton, supra, 12 Cal.4th at p. 198.) Although the People cite this principle, it does not apply in the present case because the record does not reflect an express tactical purpose on the part of defendant Chiu’s attorney in not wanting instructions on voluntary manslaughter. (People v. Boyette (2002) 29 Cal.4th 381, 438; People v. Bunyard (1988) 45 Cal.3d 1189, 1234.)
We assume the People do not want us to exercise the option of reducing the conviction to the lesser offense and affirming the judgment as to defendant Chiu, given the drastic reduction that would result in his prison term. If we are incorrect, they may petition for rehearing.
B
Finding an accomplice liable for a consequential offense requires a different task on the part of a jury. It must first determine whether the accomplice had the necessary subjective mental state--the knowing encouragement or facilitation of a confederate in committing a target offense--and then determine whether the offense actually committed was reasonably foreseeable under the circumstances known to the accomplice. (People v. Mendoza (1998) 18 Cal.4th 1114, 1123; People v. Woods (1992) 8 Cal.App.4th 1570, 1586.) The necessary mental state for the accomplice does not vary with each of the spectrum of possible consequential offenses that could flow from the target offense. (Mendoza, supra, 18 Cal.4th at p. 1132.) It is a species of “specific intent” (to the extent that term has any meaning), and is therefore subject to a claim that voluntary intoxication (or any other defense to specific intent) negated it. (Id. at pp. 1129, 1131.) On the other hand, the spectrum of possible consequential offenses is considered in the abstract on the facts known to the accomplice; therefore, as long as an accomplice had the necessary mental state for the target offense, any defense to the mental states necessary for any of the consequential offenses is irrelevant. (Id. at p. 1133; McCoy, supra, 25 Cal.4th at p. 1118, fn. 1 [explaining that accomplice is culpable for intent to bring about conduct that is generally criminal, not the particular charged consequential offense (reformulating People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5)]; People v. Curry (2007) 158 Cal.App.4th 766, 788 (Curry); Woods, supra, 8 Cal.App.4th at pp. 1600-1601; People v. Brigham (1989) 216 Cal.App.3d 1039, 1052-1053 (Brigham); People v. Rogers (1985) 172 Cal.App.3d 502, 515 [test is a “question of legal causation independent of any intention that the result obtain”].) Depending on the extent to which a consequential offense is foreseeable, there can be differing degrees of criminal liability for the accomplice and the confederate. (Woods, supra, 8 Cal.App.4th at pp. 1586-1587.)
The liability of defendants under this theory rests on the unlikely but marginally conceivable proposition that they were not there to participate in a fight if Macson needed them and were not aware that Rickie Che was armed with a gun that he was likely to employ on an adversary, but simply joined in the fray after Rickie Che started fighting with the victim and did not make any encouraging remarks regarding the use of the gun; conceding any of these facts would otherwise bring them within the realm of liability for assisting an intended shooting. In this context, it is their knowing assistance in the misdemeanors of assault or breach of the peace that renders them liable for any consequential offense. As a result, the right to invoke deadly force in reasonable or unreasonable defense of self or others is not relevant because it relates only to Rickie Che’s own degree of liability for the shooting at the victim that they had not actually anticipated, not whether this shooting was reasonably foreseeable on the facts known to defendants. Self-defense otherwise was unavailable to defendants in avoiding liability on the target misdemeanors, as they assisted the initial aggressor (if not initiating their own battles or participating in mutual combat) without ever attempting to withdraw, and stabbed a retreating opponent. Therefore, the court did not have any obligation to instruct on the use of deadly force in defense of self or others under this theory.
II
Taking a different tack, defendants argue the theory of first degree murder as a consequential offense is legally flawed, which would require reversal of the judgment because there is not any basis for us to determine on which theory the jury relied. (People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129 (Guiton).) They claim simple assault or breach of the peace are target offenses that are too trivial as a matter of law for first degree murder to be reasonably foreseeable; that legislative policy requires a finding of express or implied malice because by statute only manslaughter results during the commission of a misdemeanor; and that murder as a consequential offense of assault violates the so-called merger principle.
A
People v. Prettyman (1996) 14 Cal.4th 248 (Prettyman) found the failure to identify the target offenses in the instructions was error because it left open the possibility that the jury relied on simple assault as a target offense for murder, and a finding that murder is a reasonably foreseeable consequence of simple assault is not warranted absent evidence that an accomplice knew a confederate might employ deadly force in the assault. (Id. at p. 267.) The court cited our decision in People v. Butts (1965) 236 Cal.App.2d 817, 836-837, on this point, which had further held that there was not sufficient evidence to find that a death was foreseeable where the accomplice to an assault was unaware that the confederate was armed with a deadly weapon or was likely to use it (contrasting a case in which an accomplice prevented bystanders from interfering with an assault in which the confederate was employing deadly force). Similarly, People v. Hickles (1997) 56 Cal.App.4th 1183, 1197-1198 and footnote 2 applied Prettyman (and cited Butts) in finding the failure to identify the target offenses prejudicial because it left open the possibility that the jury could have relied on the accomplice’s intent to participate only in the noncriminal act of mere argument, or simple assault without knowledge of the confederate’s possession of a deadly weapon or willingness to employ deadly force (in which case the evidence would not support a finding that the murder was reasonably foreseeable).
In contrast, other decisions find sufficient evidence to support the finding that a murder is the reasonably foreseeable consequence of a “gang attack,” or simple assault, or breach of the peace because of “common knowledge” of the “reality” or “frequency” that firearms are put into play when rival gangs clash, even in the absence of proof that the accomplice was aware of the confederate’s possession of a deadly weapon or intent to use it. (People v. Montes (1999) 74 Cal.App.4th 1050, 1054-1056 [attempted murder; criticizing Butts (despite its citation with approval in Prettyman) but also distinguishing an assault on a rival gang)]; People v. Montano (1979) 96 Cal.App.3d 221, 224, 227 [assault with intent to commit murder of rival gang member]; compare People v. Godinez (1992) 2 Cal.App.4th 492, 499-500, 501-502 & fn. 5, 504 [prejudicial error to instruct that murder is reasonably foreseeable as matter of law; evidence that attack was chance gang encounter rather than planned weighs against murder being foreseeable; evidence of accomplice’s knowledge of presence of weapon is also relevant to issue, though not a prerequisite (mischaracterizing and then criticizing the holding of Butts as being to the contrary)].)
Defendants and the People predictably debate which of these holdings should apply in this case. We need not resolve the dispute. Though defendants phrase the issue as one of legal error, as the above cases demonstrate, it is in fact simply a claim that the evidence is insufficient to support a finding that first degree murder is a consequential offense of simple assault (or breaching the peace). (Guiton, supra, 4 Cal.4th at p. 1128 [although in one sense the sufficiency of the evidence “is always a legal question,” it is not within category of legal error for purposes of the Guiton analysis].) Since there is sufficient evidence to convict either defendant under the theory that they encouraged a premeditated killing, the possible insufficiency of the evidence that murder was a foreseeable consequence of the present target offenses is irrelevant in the absence of any affirmative showing that the jury based its verdicts on it. (Id. at p. 1129.)
B
In enacting the predecessor of Penal Code section 192, subdivision (b), as part of the original Penal Code in 1872, the Legislature effected an amelioration of the strict liability for murder under the common law for an unintentional killing in the course of a misdemeanor, designating the offense as involuntary manslaughter instead. (See People v. Milton (1904) 145 Cal. 169, 172.) Defendants contend that the judicial engrafting of the consequential-offenses doctrine (developed in the context of the law of conspiracy) on the substantive law of accomplice liability (see Prettyman, supra, 14 Cal.4th at p. 261) cannot disregard this express legislative policy (see Randle, supra, 35 Cal.4th at p. 1001 [public policy decision that killing without malice is manslaughter, not murder]) by allowing murder to be based on a target misdemeanor.
The Supreme Court has not viewed the manslaughter statute as being an absolute bar to a murder conviction for an unintentional killing in the course of committing a misdemeanor. Where the actual circumstances of the misdemeanor are dangerous to human life, a killing that is the natural consequence may be classified as a murder because malice is implied from the reckless conduct of a defendant. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 96-97, 108-110.) People v. Bunyard (1988) 45 Cal.3d 1189 upheld a conviction for first degree murder of a fetus even in the absence of express malice toward her where the accomplice intended to facilitate the first degree murder of her mother and the death of the full-term fetus was a natural (if not inevitable) consequence. (Bunyard, supra, 45 Cal.3d at pp. 1231-1232.) As a result, there does not exist a legal infirmity in premising a conviction for murder on a misdemeanor in the proper circumstances. (Cf. Montes, supra, 74 Cal.App.4th at pp. 1054-1056 [clash between rival gangs, with history of violent animosity between them, are facts warranting conviction for attempted murder as a consequential offense even of simple assault or public fighting].) Again, we note we do not decide whether the facts of the present case support a conclusion that first degree murder could have been a consequential offense, as we assume the jury relied on the factually sufficient premise that defendant Hoong encouraged a premeditated shooting. We decide only that no legal impediment to this theory is presented.
C
The felony-murder rule imputes the malice necessary for a murder conviction to a killing committed in the course of a felony, regardless of the killer’s actual mental state. If the felony is among those enumerated in Penal Code section 189, it is first degree murder; otherwise, the felony must be inherently dangerous to human life. (People v. Hansen (1994) 9 Cal.4th 300, 308.) The latter principle, however, has a limitation. Under the “merger” doctrine, an assault cannot be the underlying felony that provides the imputed malice, because the vast majority of homicides generally have an antecedent assault; it would unduly “relieve the prosecution in the great majority of homicide cases of the burden of having to prove malice,” and usurp the careful legislative gradations of crimes. (Id. at p. 311.)
As we will not be applying the merger doctrine in the present context, we do not have any occasion to revisit the dispute over the proper paradigm of merger analysis discussed in an earlier opinion of this court presently under review. (People v. Chun (2007) 155 Cal.App.4th 170, review granted Dec. 19, 2007, S157601.)
Defendants contend that the policy underlying the merger doctrine in felony-murder cases should apply to use of an assault as a target offense in consequential offense cases. Alternately, they argue that a failure to apply the merger doctrine in the present context violates their constitutional right to equal protection under the law. Neither premise has merit.
In People v. Karapetyan (2006) 140 Cal.App.4th 1172, 1178, we explained that the principles underlying the merger doctrine are not implicated in accomplice liability for a murder that is the consequence of the target offense of assault because not all accomplices to a targeted assault will be liable for murder, only those who participate in an assault where murder is a reasonable consequence. Furthermore, it is a theory of liability entirely independent of the felony-murder rule and its goal of deterring negligent or accidental killings during a felony; its purpose is to punish those intentionally joining in the crimes of another. (Ibid.; accord, People v. Culuko (2000) 78 Cal.App.4th 307, 322; cf. People v. Luparello (1986) 187 Cal.App.3d 410, 435-438 [rejecting application of merger doctrine to conspiracy to commit assault; see id. at p. 437: “coconspirators, bound in criminal combination, are mutually bound to a punishment dictated by their conspiratorial efforts. Viewed in this light, the bridge between punishment and moral culpability, so illusory . . . under the felony-murder rule, stands here on much firmer ground. So too, deterrence, while absent when the underlying felony merges under the felony-murder doctrine, is clearly present”].) In shorthand form, People v. Francisco (1994) 22 Cal.App.4th 1180, 1189-1190, also agreed that the merger doctrine did not bar accomplice liability for a murder during an intended assault with a firearm (citing the more lengthy analysis in Luparello). We adhere to these decisions.
As for their cursory claim that this asymmetry results in a denial of equal protection, they must as a prerequisite show that they are similarly situated to a defendant prosecuted under the doctrine of felony murder in the second degree. (People v. Bell (1996) 45 Cal.App.4th 1030, 1046.) To this end, they assert that Rickie Che would be able to invoke the merger doctrine to avoid liability for second degree felony murder of the same victim. However, the short answer is that the different doctrines of felony murder and accomplice liability for consequential offenses do not have identical paradigmatic underpinnings, as we have just explained above, and thus a defendant prosecuted under one theory is not similarly situated to a defendant prosecuted under the other. Defendants’ focus on the result rather than the route is unduly myopic. We consequently do not need to wrestle with whether (or not) the failure to apply a limitation developed in the context of one common law criminal doctrine to another would impinge on a fundamental right (such as liberty), or advance any justifications for the disparate treatment. (Cf. Curry, supra, 158 Cal.App.4th at p. 789 [rejecting claim that different treatment of intoxication for accomplices of intended crime and accomplices of consequential offense involves similarly situated individuals].)
Along with defendants, we will leap past any explanation of the process of applying principles of equal protection to the judicial development of the common law.
As Brigham discusses, the problem for defendants is actually a function of prosecutorial discretion in bringing charges, which can eliminate a defense available under one theory of liability through the tactic of proceeding under another. (Brigham, supra, 216 Cal.App.3d at p. 1052.) However, absent proof of selective or vindictive prosecution (and neither defendant argues that either plays a role in the present case), defendants cannot challenge the exercise of this charging discretion. (Sundance v. Municipal Court (1986) 42 Cal.3d 1101, 1132.)
III
Having at last emerged from the conceptual jungle growing around the prosecution’s theory of the case and the possible defenses to it, with the hide of defendant Hoong’s first degree murder conviction intact under either theory (and both theories available for the retrial of defendant Chiu with instructions on unreasonable defense of self or others), we address other less intellectually challenging attacks on defendants’ murder convictions (in the case of defendant Chiu, for the purpose of giving guidance where necessary for his retrial).
A
Defendants assert that the testimony of Joshua is inherently unbelievable and unreliable. However persuasive the five-page attack on the testimony may be as a matter of rhetoric, it simply goes to the weight that a trier of fact should have given it, and fails to satisfy the exacting actual standard we must apply on appeal to the implicit credibility resolutions of a jury.
In order to reject testimony that a jury has apparently accepted, we must find a physical impossibility that it is true, or the lack of veracity must be apparent without any resort to inference; merely conflicting or even justifiably suspicious testimony is not a basis to reverse a judgment. (People v. Mayberry (1975) 15 Cal.3d 143, 150.) It is for the trier of fact to consider the inconsistencies in the evidence, to resolve them if possible, and to assess the resulting value of each witness. (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 878; People v. Watts (1999) 76 Cal.App.4th 1250, 1259; People v. Holman (1945) 72 Cal.App.2d 75, 89, 90.)
The witnesses at trial were not adult spectators at a tennis match. They were adolescents caught up in the quickly unfolding and emotionally charged events of a street brawl that led to a shooting, some of whom had the distractions of physically violent confrontations with others. The jury was well aware of this, and the attorneys for defendants ably attempted to exploit the conflicts in the recollections. It is not a basis, however, for excluding Joshua’s testimony from consideration in the present appeal or on retrial.
B
In support of the “predicate offense” element of the gang enhancement (which establishes the existence of the pertinent criminal street gang), the prosecutor convinced the court to allow him to introduce evidence of defendant Hoong’s two juvenile adjudications, which the probation officer described as a “felony violation of [section] 245 of the Penal Code” in July 2000 and an attempted auto burglary in September 2000, both when he was 13 years old. The probation officer expressed the opinion that the auto burglary was for the benefit of the Chinese gang and the felony assault was among the Chinese gang’s primary activities. The court later instructed the jury that these offenses “if relevant, [are] relevant solely to the issue of whether the gang enhancement is true or not true.”
(People v. Gardeley (1996) 14 Cal.4th 605, 615, 625; Penal Code section 186.22, subds. (e), (f), (j).)
Defendant Hoong (in echo of his objection in the trial court) contends his prior offenses were cumulative of other evidence of seven predicate offenses that the Chinese gang committed. This reduced their probative value to a minimum, which their prejudicial effect outweighed. Therefore, the trial court abused its discretion in admitting the evidence of the prior offenses. (E.g., People v. Leon (2008) 161 Cal.App.4th 149, 169.)
Since, as we have earlier noted, we will be vacating the gang enhancements because there is insufficient evidence to support them, the point is moot. Defendant Hoong attempts to claim this evidence also prejudiced the jury’s consideration of his guilt of the substantive offense. However, this claim ignores the presumption that jurors heed the court’s limiting instructions except in the most egregious circumstances (such as the inculpatory confession of a codefendant), a principle essential to the entire system of trial by jury; we otherwise court judicial anarchy because there would not be any point either in instructing a jury or in reversing a conviction for improper instructions. (Marshall v. Lonberger (1983) 459 U.S. 422, 438, fn. 6 [74 L.Ed.2d 646]; Parker v. Randolph (1979) 442 U.S. 62, 64, 74-75 & fn. 7 [60 L.Ed.2d 713] [plur. opn. of Rehnquist, J.]; People v. Anderson (1987) 43 Cal.3d 1104, 1120-1121.) We therefore do not consider this issue any further.
As the possibility is questioned that the People would go through the effort of retrying an enhancement with little practical value in defendant Hoong’s punishment, or that they would seek to reintroduce this evidence even if they did, we do not find the issue merits advisory analysis.
C
Defendants attempt to raise the issue of misconduct on the part of the prosecutor in closing argument for the first time on appeal. As to defendant Chui, the point is moot. As to defendant Hoong, we disagree that an admonition would have been futile (People v. Sapp (2003) 31 Cal.4th 240, 279), and will not find ineffectual assistance of trial counsel in the highly tactical context of deciding whether to object to questionable argument (People v. Catlin (2001) 26 Cal.4th 81, 165; People v. Frierson (1991) 53 Cal.3d 730, 749).
In a nutshell, the challenged portions of the prosecutor’s argument involved an appeal to the jury to respond as the “voice of the community” in assessing whether a murder is the reasonable consequence when participants arrived armed; quoting from Montes on the extent to which shootings may reasonably be likely when gangs collide; disparaging the well-paid defense expert in terms of a well-known Master Card commercial campaign for stating a conclusion that the Sureños are not a criminal street gang; and asserting that the likelihood that defendants’ presence at the Internet café was nonculpable under the combination of the various circumstances in this case was as likely as winning the lottery 14 times in a row.
D
Defendants contend that the pattern instruction on motive either lightened or relieved the prosecution’s burden of proof on the gang enhancement and the murder verdict (the latter asserted without any explanation).
“Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty.”
The point is moot as to the vacated gang enhancements, and arguably is waived as to the murder conviction for want of adequate argument (People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 10), but we address it anyway as it is easily refuted.
This is true only in the circumstance of a crime with an unusual mental state. People v. Maurer (1995) 32 Cal.App.4th 1121 involved misdemeanor child annoyance, which requires proof that a defendant was motivated by unnatural or abnormal sexual interest. The court instructed accordingly on that element. We explained that this results in a jury being instructed both that “motivation” is an element but “motive” is not, a distinction that we did not believe lay jurors could draw on their own, which therefore left the possibility of removing the element of “motivation” from the prosecution’s burden of proof. (Id. at p. 1127.)
The Supreme Court has distinguished our decision from the usual situation where the mental state for an offense does not employ a term akin to “motive.” (People v. Guerra (2006) 37 Cal.4th 1067, 1135 [“intent” as used in instruction for rape-murder special circumstance not interchangeable with “motive”]; People v. Cash (2002) 28 Cal.4th 703, 738-739 [robbery-murder special circumstance]; People v. Hillhouse (2002) 27 Cal.4th 469, 503-504 [“malice,” “intent,” and “purpose” as used in defining mental states for various crimes are not synonymous with “motive” and therefore no possibility of misleading jury].) Defendants fail to identify any similar opportunity for instructional mischief in the present case, where the necessary intention for the gang enhancement is the specific intent “to promote, further, or assist in any criminal conduct by gang members” (Pen. Code, § 186.22, subd. (b)(1)), or in the homicide instructions. We reject this argument as a result.
IV
Defendants argue that the gang experts violated their constitutional right to confrontation in relating bases for their opinions that were testimonial hearsay. (Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177].) As we are reversing the judgment as to defendant Chiu, the point is moot, and we will not provide advisory guidance given the myriad alternatives in the manner in which the prosecution might choose to structure its case, or the manner in which the court might resolve an objection on this basis (after appellate counsel has highlighted the issue). As for defendant Hoong, any error is harmless beyond a reasonable doubt as to his murder conviction, given the evidence that he encouraged Rickie Che to shoot, and otherwise is moot as to his gang enhancement (and for the same reasons, we will not provide advisory guidance in this respect either). At any rate, even if we were to consider the merits of the issue, there is authority to the contrary (even if defendants dispute the validity of its reasoning) to which we adhere until a higher authority indicates its disapproval. (People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427 [hearsay basis of expert opinion is not a use with which confrontation clause concerned]; People v. Thomas (2005) 130 Cal.App.4th 1202, 1210 [also citing cases from New York and federal trial courts to same effect].)
As defendants acknowledge through their invocation of the spectre of ineffective assistance of counsel, their trial attorneys for the most part did not articulate any objection on this basis to testimony now challenged on appeal, which forfeits appellate review of the claim. (People v. Chaney (2007) 148 Cal.App.4th 772, 779.)
V
Regarding the gang evidence, defendants contend there is insufficient evidence to prove the existence of a criminal street gang and its pattern of criminal activity, or their participation in a murder benefitting or committed in association with a gang with a specific intent to promote, further, or assist criminal gang activity. Agreeing with the latter, we will relate only the evidence relevant to it (and we will not address the former).
A
The evidence previously summarized, viewed in favor of the judgment, shows that defendants were present at the scene for the purpose of backing up Macson in a fight that did not have any connection to gang activity, and which in any event never took place. There is no indication they were aware that the Vietnamese girlfriend had any connection with the Bloods-adorned Latinos who did not normally congregate at the Internet café largely patronized by Asians. The testimony of the teenaged witnesses was consistent that the fight had nothing to do with gangs, there was not any flashing of signs or slogans, and there had not been any clashes between Latino and Asian gang factions at the location before.
We disregard the People’s attempt to rely on the courtroom misconduct of a friend of the victim’s mother (making a threatening gesture toward Simon) and the victim’s mother (wearing a T-shirt and tattoos seeking sympathy for the victim) or a prosecution witness wearing gang-indicia jewelry as evidence of defendants’ intent or the gang-related nature of the offenses.
Simon denied membership in the Chinese gang even though his probation officer believed otherwise (based on his acquaintances, and on the victims in the other assault at the Internet café he and defendant Chiu had committed having told the police that gang members were harassing them afterward), denied ever saying that the Chinese gang had tried to recruit him, and though he had heard rumors that Ricky Che was a member, defendants were not. Macson did not have any first-hand knowledge of whether his acquaintances were gang members. Sarn believed Macson’s acquaintances were gang members, but not Macson himself. Other witnesses were equivocal about whether Ricky Che and defendants were members of the gang. Defendant Chiu said that at one point a gang member had attempted to recruit him, and he acknowledged that a number of acquaintances might be members, but he denied membership when asked by a friend. He also denied that he intentionally provoked the fight to further the gang’s reputation. He did admit that he had been involved in a number of incidents that the prosecution experts designated as gang-related between January 2001 and the shooting.
The prosecution gang experts (three detectives and two probation officers) admitted that neither defendants, Rickie Che nor Simon had been identified as members of the Chinese gang before the shooting, nor are there any documented incidents of fights between it and Latino gangs. In describing its workings, the experts noted that the Chinese gang’s primary focus was assaultive behavior and crimes for financial gain in which it had a reputation for ruthlessness. It is highly secretive (and unlike other gangs, its members do not readily admit membership), on which the police had only a minimal paper trail. Its members do not wear tattoos or use hand signs, and do not engage in the displays of posturing or other provocative behaviors characteristic of other gangs demanding “respect.” Its members tend to dress in stylish clothes that blend in rather than make them stand out. Its primary opponents are other Chinese gangs.
The defense gang expert also made some of these points.
Nevertheless, the prosecution gang experts concluded that the fight and the shooting were gang-related, in which defendants participated to promote, further, or assist the Chinese gang. One expert based this conclusion on defendant Chiu’s involvement in earlier gang-related incidents. The other believed that defendants joined in the fight to defend gang turf, to show that their gang would not back down in a confrontation with another group, to enhance the gang’s reputation for fierceness, and to avoid losing face if they were to lose the fight. The defense expert, in contrast, believed the fight and the shooting were simply a typically overemotional reaction on the part of teenagers.
While the prosecution may have established the existence of the Chinese gang and its pattern of criminal activities, and the likely membership of defendants and their past participation in gang activities, the only evidence that defendants fought with the Latinos or urged the shooting of the victim to promote, encourage, or assist gang activity is the opinion of the gang expert. This opinion, however, is self-contradictory, because his description of the characteristics of the Chinese gang are utterly at odds with defendants’ behavior, and in essence is simply based on their status as gang members who happened to commit the underlying offenses. Moreover, his opinion cannot provide substantial evidence of defendants’ subjective intent; the expert can only express a general hypothetical opinion on the possible motivation of a gang member or the possible benefit to the gang of the offense. (People v. Killebrew (2002) 103 Cal.App.4th 644, 658; see People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550-1551.) Therefore, we must vacate the gang enhancements.
B
This leaves the issue of whether the prosecution may retry defendants on the gang enhancements. People v. Seel (2004) 34 Cal.4th 535, reexamined precedent on the issue of whether principles of double jeopardy allowed retrial of an enhancement after it had been vacated on appeal for evidentiary insufficiency. The court had earlier concluded that Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435], which as a matter of federal constitutional law found that a jury trial is required on all sentence enhancements that increase the penalty for a crime beyond the statutory maximum, also required courts to assess any prejudice from instructional error in connection with such enhancements under the federal constitutional standard of harmlessness beyond a reasonable doubt. (People v. Sengpadychith (2001) 26 Cal.4th 316, 326.) In that case, the court found that only two of the three alternative punishments in the gang enhancement statute increased the penalty for the underlying crime (those which enhanced the sentence for various determinate-term felonies); the third, however, which simply increased the minimum prison term for indeterminate-term felonies, did not increase the punishment for the underlying offense beyond the statutory maximum and therefore was subject to the ordinary state harmless-error standard. (Sengpadychith, supra, 26 Cal.4th at p. 327.) Seel concluded that the same principle must apply in the context of double jeopardy: an enhancement exposing a defendant to a greater punishment for the underlying offense than the statutory maximum must be treated as an element of the offense, and therefore a finding of evidentiary insufficiency bars retrial. (Seel, supra, 34 Cal.4th at pp. 547-550.)
Recidivist enhancements are the notable exception to this rule.
The punishment on the gang enhancement in the present case is the one that merely increases the minimum prison term to 15 years for an indeterminate life sentence on an underlying crime. (Pen. Code, § 186.22, subd. (b)(5).) Consequently, the People may retry defendants on the gang allegation (although there would appear to be little purpose in doing so as to defendant Hoong, whose first degree murder conviction already carries a greater minimum prison term of 25 years, longer than that required under the enhancement).
VI
Finally, defendants contend that they cannot be liable as accomplices for the firearm enhancement on the theory that murder was the consequential offense of their target crimes. They also (under a different heading) assert that a reversal of the gang enhancement requires us to reverse the firearm enhancement for insufficient proof that defendants are principals who “violated subdivision (b) of Section 186.22” when an accomplice “committed any act specified in subdivision (b), (c), or (d) [of this statute].” (Pen. Code, § 12022.53, subd. (e)(1); People v. Garcia (2002) 28 Cal.4th 1166, 1174 [noting that a necessary element of the gang enhancement in the conviction of an accomplice is proof that accomplice participated in the confederate’s offense for the benefit or at the direction of a criminal gang, or in association with it].)
As we agree with the latter point, we neither need to elaborate on nor resolve the former. We must vacate the firearm enhancement as to both defendants, and under the double jeopardy principles we have discussed above, defendants may not be retried because this enhancement by contrast increased the punishment on their underlying crime beyond the statutory maximum.
Disposition
The judgment is reversed as to defendant Chiu and the matter remanded for retrial except on the firearm enhancement, which the trial court shall dismiss. Defendant Hoong’s murder conviction is affirmed; the Hoong enhancements are vacated and remanded for the court to dismiss the firearm enhancement and to allow the People to reallege the gang enhancement. If they have not filed their notice of intent to retry it within 30 days after the issuance of our remittitur, the trial court shall dismiss that enhancement as well and forward an amended abstract of judgment to the Department of Rehabilitation and Corrections.
I concur: HULL , J.
I concur in the result: BLEASE , Acting P. J.