Opinion
C076191 C076607
06-03-2020
THE PEOPLE, Plaintiff and Respondent, v. CONRAD J. JOHNSON, JR. et al., Defendants and Appellants. THE PEOPLE, Plaintiff and Respondent, v. LAM QUOC LUONG, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING PETITIONS FOR REHEARING [CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on June 3, 2020, be modified as follows:
1. On page 5, add the following sentence to the end of the first paragraph before the Factual and Procedural Background:
On remand, Luong and Do are allowed to make a record of information relevant to their respective future youth offender parole hearings.
2. On page 15, add the following sentence to the end of the first paragraph before part III of the Discussion:
This evidence of corroboration likewise rebuts Luong's claim that there was insufficient evidence to support his convictions because Luu's testimony was not corroborated.
3. On page 52, after part XVII, add the following parts XVIII and XIX:
XVIII
Franklin Remand
In supplemental briefs, Luong and Do ask for the case to be remanded pursuant to People v. Franklin (2016) 63 Cal.4th 261 so they can each make a record of information for their respective youth offender parole hearings in the future. The Attorney General concedes the point. We agree. Luong and Do will be allowed to make their Franklin records on remand.
XIX
Dueñas
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, Randall, Luong, Do, and Villanueva contend remand is required for an ability to pay hearing with respect to the restitution fine and court operations and conviction assessments.
We join the courts concluding Dueñas was wrongly decided and hold that defendants were not entitled to an ability to pay hearing for the conviction and operation assessments. (People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 322, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1060; People v. Caceres (2019) 39 Cal.App.5th 917, 920.) We therefore reject the contentions.
4. On page 53, add the following sentence to the end of the Disposition:
On remand, Luong and Do are entitled to present information in accordance with People v. Franklin (2016) 63 Cal.4th 261.
This modification changes the judgment. Appellants' petitions for rehearing are denied.
/s/_________
BLEASE, Acting P. J. I concur: /s/_________
DUARTE, J. MAURO, J., Concurring and Dissenting.
I concur in the modification order except to the extent it adds a new part XIX to the Discussion, pertaining to fines and assessments. As to that portion of the modification, I dissent. Under the circumstances, the opinion filed on June 3, 2020, is modified to add the following concurring and dissenting opinion: MAURO, J., Concurring and Dissenting.
I fully concur in the majority opinion except for part XIX of the Discussion, pertaining to fines and assessments, as to which I dissent.
In People v. Dueñas (2019) 30 Cal.App.5th 1157, the court held it is improper to impose certain fines or assessments without determining defendant's ability to pay. (Id. at pp. 1168, 1172.) Although some courts have subsequently criticized Dueñas's legal analysis (see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946), Dueñas remains citable precedent. Until the California Supreme Court has had an opportunity to resolve the current split in authority, I would remand the matter to give the trial court an opportunity to consider Randall, Luong, Do, and Villanueva's ability to pay the imposed fines and assessments.
/s/_________
MAURO, J. 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. 12F01431)
This is a gang case involving three Asian gangs. Their members are known to carry guns. From this and other facts about the gangs and their members, the courts draw inferences relating to their collective criminal behavior. In this case, the Viet Pride and Khome Zong Tong (KZT) gangs are bitter rivals of the Hop Sing street gang. On January 12, 2012, Kao Saechao, a Hop Sing gang member, entered the Pure Water store in the Savings Place shopping center in South Sacramento, a gathering place for KZT and Viet Pride members, who consider the center their territory. A minute later, defendants Jhordan Villanueva and Danny Dien Do, Viet Pride gang members, appeared outside the store and were joined minutes later by defendants Roderick Bernard Randall and Conrad J. Johnson, Jr., KZT gang members. Villanueva and Do and later Randall challenged Saechao to come outside and fight. Saechao, fearing there would be a shootout if he left the store, called other Hop Sing members for help. They arrived shortly thereafter in a red Honda. Shots were fired at the Honda from two directions by defendants Lam Quoc Luong and Johnson and two of its occupants were hit, one (S.V.) in the leg and the other (J.T.) in the head. All defendants challenge the jury's findings of guilt of the attempted murders of S.V. and J.T., Luong and Johnson as direct perpetrators, and Villanueva, Do, and Randall as aiders and abettors pursuant to a natural and probable consequences theory. We shall affirm these convictions.
A jury found defendants Luong, Villanueva, Do, Randall, and Johnson guilty of the attempted murders of J.T. (count one), S.V. (count two), J.S. (count three), and K.S. (count four) (Pen. Code, §§ 664, 187, subd. (a)), and Randall guilty of possessing MDMA for sale (Health & Saf. Code, § 11378; count five). The jury also found true allegations that: counts one through four were committed willfully, deliberately, and with premeditation (§ 664, subd. (a)); a principal intentionally and personally used a firearm in the commission of counts one through four (§ 12022.53, subds. (b), (e)(1)); a principal intentionally and personally discharged a firearm in the commission of counts one through four (§ 12022.53, subds. (c), (e)(1)); a principal personally caused great bodily injury as defined in section 12022.7 to a person other than an accomplice in the commission of counts one and two (§ 12022.53, subds. (d), (e)(1)); and counts one through five were committed for the benefit of, at the direction of, or in association with, a criminal street gang, to wit, KZT, with the specific intent to promote, further, or assist in criminal conduct by said gang members (§ 186.22, subd. (b)(1)).
Undesignated statutory references are to the Penal Code.
Methylenedioxymethamphetamine, colloquially known as "Ecstasy."
In a bifurcated proceeding, the trial court found true allegations that Johnson and Randall each served a prior prison term within the meaning of section 667.5, subdivision (b), and had been convicted of a serious felony within the meaning of the three strikes law (§§ 667, subds. (b)-(i) & 1170.12) and section 667, subdivision (a).
Luong was sentenced to an aggregate term of 64 years to life in state prison, consisting of two consecutive terms of seven years to life on counts one and two, plus two consecutive terms of 25 years to life for the firearm enhancements under section 12022.53, subdivisions (d) and (e)(1). The sentences on counts three and four were run concurrent.
Villanueva and Do were sentenced to aggregate terms of 32 years to life in state prison, consisting of seven years to life on count one, plus a consecutive 25 years to life for the firearm enhancement under section 12022.53, subdivisions (d) and (e)(1). The sentences on counts two, three, and four were run concurrent.
Randall was sentenced to an aggregate term of 88 years to life in state prison, consisting of two consecutive terms of 14 years to life on counts one and two (seven years, doubled for the prior strike), plus two consecutive terms of 25 years to life on the firearm enhancements under section 12022.53, subdivisions (d) and (e)(1), plus two consecutive terms of five years for the prior serious felony enhancements. The sentences on counts three, four, and five were run concurrent, and the prior prison term enhancements were stricken.
Johnson was sentenced to an aggregate term of 83 years to life in state prison, consisting of two consecutive terms of 14 years to life on counts one and three (seven years, doubled for the prior strike), plus a consecutive 25 years to life on the firearm enhancement under section 12022.53, subdivisions (d) and (e)(1) on count one, plus a consecutive 20 years on the firearm enhancement under section 12022.53, subdivisions (c) and (e)(1) on count three, plus two consecutive terms of five years for the prior serious felony enhancements. The sentences on counts two and four were run concurrent, and the prior prison term enhancements were stricken.
Defendants raise a number of claims on appeal, some of them overlapping. In particular, they contend that the trial court committed various evidentiary, instructional, and sentencing errors. They also assert that there is insufficient evidence to support their convictions and that the case must be remanded to allow the trial court to exercise its newly acquired discretion to strike the firearm enhancements imposed pursuant to section 12022.53.
We shall conclude that Randall's conviction for possession of MDMA for sale must be reversed because there is insufficient evidence that he knew of the drug's presence or exercised dominion and control over the same, and shall modify his and Luong's judgments to provide for additional days of presentence custody credit consistent with this opinion. We shall affirm the judgments in all other respects, but shall remand the case to allow the trial court to exercise its discretion as to whether to strike any of the firearm enhancements and, if appropriate, to resentence defendants. Should the trial court decline to strike the firearm enhancements found true as to Do and Villanueva on counts three and four, we shall direct the trial court to correct Do's and Villanueva's abstracts of judgment and minute orders to reflect that the firearm enhancements imposed on those counts were for 20 years under section 12022.53, subdivisions (c) and (e).
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 1:19 p.m. on January 12, 2012, Kao Saechao, a validated member of the Hop Sing street gang, and his girlfriend entered the Pure Water store in the Savings Place shopping center in South Sacramento to purchase water. The Savings Place shopping center is a known gathering place for members of the KZT and Viet Pride street gangs, rivals of the Hop Sing street gang.
There were at least six surveillance cameras located inside and outside the water store. These cameras recorded a significant portion of the activities and movements of defendants, Saechao, and the shooting victims prior to and at the time of the shooting. The surveillance videos were played for the jury and admitted into evidence. The videos are time-stamped; the time reflected is one hour 36 minutes fast.
A minute after Saechao and his girlfriend entered the water store, two Viet Pride gang members, defendants Villanueva and Do appeared outside the store. They returned a few minutes later at 1:22 p.m. with two KZT gang members, defendants Randall and Johnson, and former Viet Pride gang member Jimmy Luu. All five men stood in the store's doorway and peered inside.
Villanueva and Do remained outside the store and called Saechao "Hop Chop," told him that he was in their territory, and challenged him to come outside and fight. "Hop Chop" is a derogatory term for a Hop Sing gang member. Saechao believed that he would get "jumped" if he went outside and that there would be a shootout if he attempted to drive away, so he called "Jiam and them" for help.
About 1:37 p.m., Randall entered the store and spoke to Saechao, while Villanueva and Do remained outside. Randall told Saechao that the other two guys (Villanueva & Do) knew Saechao was a "Hop Chop," and to "[j]ust go outside and talk like a man."
While Randall was inside the store encouraging Saechao to go outside, Saechao's friends came "screeching" into the shopping center in a red Honda. Villanueva and Do looked in the direction of the red Honda and immediately walked away from the water store. Randall left the store a few seconds later as the occupants of the red Honda—J.T., S.V., J.S., and K.S.—were starting to walk toward the water store; Randall yelled, "Chops, light them up." Shots were fired at the red Honda and its occupants from two directions. S.V. was shot in the back of his right leg, and J.T. was shot twice in the head. Most, if not all, of the occupants of the red Honda were members of Hop Sing.
On the day in question, Randall was wearing a court-ordered GPS tracking device that recorded his location once every minute and the speed of his movements. According to that device, he arrived at the Savings Place shopping center at approximately 1:08 p.m., went inside Café Monaco, which is also located in the Savings Plus shopping center, for a few minutes, and then walked around outside before approaching the front of the water store at 1:21 p.m. At 1:25 p.m., he walked back to Café Monaco and then drove to a nearby house he rented at 6904 Casa Grande Way. He returned to Café Monaco a few minutes later, at 1:31 p.m., walked over to the dumpsters where .45-caliber casings were later found, and then ran to the water store about 1:37 p.m. He left the shopping center by car at 1:41 p.m., a few minutes after the shooting.
Pursuant to a plea bargain, Luu testified for the prosecution at trial. When he arrived at the shopping center on the day in question, he saw Randall and Johnson "peeping" behind a dumpster adjacent to the Firehouse restaurant, and Villanueva and Do outside the water store. Randall and Johnson were looking toward the water store. After getting some coffee at Café Monaco, he walked to the water store to see what was going on and was told by Villanueva or Do that there was a "Hop Chop" inside. Luu peeked inside, saw an Asian "dude" and an Asian "female" at the counter, and walked back to Café Monaco, where he stood outside watching "old Asian guys" gamble. On his way back to Café Monaco, he saw KZT gang members Steven Nat and defendant Luong sitting in a black BMW parked near where the men were gambling. Nat was in the driver's seat, and Luong was in the backseat wearing a sweatshirt with the hood pulled up over his head. Shortly thereafter, the black BMW moved and parked next to a Vietnamese restaurant in the same shopping center.
Luu was initially arrested and charged in this case.
Luu saw the red Honda pull into the shopping center about 10 minutes later. "[T]he car screeched in, pulled in fast, and then [a] couple of people hopped out [of] the car." He heard a gunshot almost immediately thereafter, turned around, and saw Johnson running with a "shiny gun." He also saw Luong fire a "fully automatic" firearm from the sunroof of the black BMW as it rolled past the red Honda. Luu heard two sets of shots: two pops followed by "the other gun . . . letting loose." The gunshots came from different directions. One set of gunshots came from the Firehouse restaurant.
When asked about his understanding of the relationship between KZT and Viet Pride on the date of the shooting, Luu responded, "They had one motive. They dislike Hop Sing."
Two types of ammunition were recovered from the scene: 17 nine-millimeter bullets and casings and thirteen .45-caliber bullets and casings. Most of the .45-caliber casings were found near the dumpsters in the parking lot. All of the nine-millimeter bullets and casings likely were fired from a single firearm, as were the .45-caliber bullets and casings.
After the shooting, a witness whose house backed up to the Savings Place shopping center described seeing an individual wearing a black baseball cap with grey or white writing on the front and carrying a handgun jump over the fence and run toward Casa Grande Way. The police set up a perimeter around the area and knocked loudly on the door at 6904 Casa Grande Way, the house rented by Randall. When no one answered, the police obtained a search warrant. Johnson exited the house around 5:30 p.m.; he was the only person inside. Among other things, police found a .45-caliber pistol with an extended magazine inside a toilet tank. It was later determined that the .45-caliber casings recovered at the scene had been fired by the pistol found inside the toilet tank. A black baseball cap matching the one described by the witness and the one Johnson was seen wearing in the surveillance video taken outside the water store was found in the bottom of a trash can inside the residence. Johnson's hands tested positive for gunshot residue.
When law enforcement officers arrived at Randall's rental home at 6904 Casa Grande Way, Luong's car was parked in the driveway.
After the shooting, Luong and Nat went to Ann Nguyen's house behind Café Monaco. Nguyen was friends with Nat's girlfriend, Michelle Bui. The black BMW used in the shooting belonged to Bui, who had lent the car to Nat for the day. Nat called Bui at work and had Nguyen go get Bui and bring her back to Nguyen's house. When Bui arrived, her black BMW was parked in Nguyen's garage. According to Bui, Nat seemed "[k]ind of worried," while Luong appeared "very calm." Luong told Bui "to get rid of the car . . . to get rid of the evidence." More particularly, he told her to "burn" the car or do an "I-job," meaning "damage the whole car so that way the insurance could pay for the whole car." Bui left the car in Nguyen's garage for several months before selling it to someone in Salinas. The car's new owner found an expended nine-millimeter shell inside. Ballistics testing revealed that the shell found in Bui's car was fired from the same gun as the nine-millimeter casings found at the scene.
Taizo Takahashi, a detective with the Sacramento County Sheriff's Department, testified for the prosecution as an expert on Asian gangs. Takahashi had spent the past two years working as a detective in the gang suppression unit. Prior to that, he had spent time working on the Asian gang task force and as a gang intelligence officer at the Rio Cosumnes Correctional Center. Takahashi's contacts with gang members in his current assignment included proactively contacting gang members and gathering information about gang members and the gangs themselves, interviewing gang members while investigating gang-related crimes, and speaking to gang members who were victims of crime. He also gathered information about gangs by reviewing reports and talking to other law enforcement officers. He estimated that he had spoken to at least 100 Asian gang members, investigated at least 20 Asian gang-related crimes, and reviewed at least 100 reports regarding such crimes.
Takahashi was familiar with KZT and Viet Pride, explaining that both had been recognized by the Sacramento County Sheriff's Department and virtually every other law enforcement agency in the surrounding areas as Asian gangs. The two gangs were aligned and shared a close relationship. Both gang's primary rival was Hop Sing. According to Takahashi, the rivalry between Viet Pride and Hop Sing was "so deep that the likelihood of something very violent happening when their paths crossed [was] very high." The Savings Place shopping center where the shooting occurred is considered KZT and Viet Pride "turf."
Takahashi became familiar with KZT through street contacts and interviews with KZT gang members, reports that he reviewed, and a network of Asian gang investigators. According to Takahashi, Randall was "universally recognized" by Asian gang experts as a leader, if not the leader, of KZT. Takahashi opined that KZT's primary activities included burglary, possession for sale of methamphetamine and marijuana, felon in possession of a firearm, carrying a concealed weapon, carrying a loaded firearm in a public place, attempted murder, and shooting at occupied dwellings. He also testified about several incidents that resulted in the conviction of KZT gang members.
Takahashi had "quite a few contacts" with Viet Pride members in the past, although his contacts over the past two years were limited to around five. A number of Viet Pride gang members have tattoos that read: "Rest in Peace, Gia Huynh or aka Yogi." Takahashi explained that Gia Huynh was a Viet Pride gang member who was killed execution style in the Savings Place shopping center in 2010. The primary activities of Viet Pride included carrying a concealed firearm, possession of methamphetamine for sale, and felon in possession of a firearm.
Takahashi further testified that Hop Sing was an Asian street gang, and its primary activities included "drive-by shootings, up to and including homicide." According to Takahashi, many Hop Sing gang members "have been found with weapons as well as loaded weapons, concealed weapons."
Takahashi opined that defendants' actions benefited KZT, explaining, that "[w]hen a gang member shows up on your territory, there is an expectation of a reaction to that sign of disrespect. . . . [¶] So that sign of disrespect has to be addressed. And in this case it was by those involved in this case by confronting him, and if the allegations are true, . . . ultimately shooting at them." According to Takahashi, it "not only bolsters the respect that they have . . . but it . . . further instills fear in their rivals as well as their community . . . ." Takahashi further opined that if members of Viet Pride confronted a member or associate of Hop Sing in a known KZT/Viet Pride territory, challenged him to a fight, and called him "Hop Chop," it would be reasonably foreseeable that a shooting might occur. The same would be true if a member of KZT confronted a member or associate of Hop Sing in a known KZT/Viet Pride territory and told him to exit the store to confront other KZT and Viet Pride gang members.
DISCUSSION
I
The Trial Court Did Not Err in Refusing to Instruct the Jury on the Crime of Being an
Accessory to a Felony
Luong contends that the trial court erred in refusing to instruct the jury on the crime of being an accessory to a felony in violation of section 32, thereby violating his federal constitutional rights to due process of law, to a fair trial, and to present a defense. According to Luong, such an instruction was required because his defense at trial was that "if [he] were guilty of anything, it would be of being an accessory under Penal Code section 32" based on Bui's testimony that after the shooting he told her to destroy the BMW. There was no error.
" ' "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]' " (People v. Breverman (1998) 19 Cal.4th 142, 154, quoting People v. Sedeno (1974) 10 Cal.3d 703, 715-716.)
A lesser included offense is subsumed by the charged offense and as such is a general principle of law that requires proper instruction to the jury. (People v. Birks (1998) 19 Cal.4th 108, 117-118.) By contrast, the trial court has no duty to instruct on an uncharged, lesser related offense. (People v. Rundle (2008) 43 Cal.4th 76, 147-148 (Rundle), overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; Birks, at p. 136.) Neither the State nor Federal Constitution requires that a trial court instruct on uncharged, lesser related offenses, even on request by the defense. (Rundle, at pp. 147-148; Birks, at p. 124; Hopkins v. Reeves (1998) 524 U.S. 88, 96-97 .)
Here, Luong was not charged with being an accessory to a felony, and as he concedes, that offense is not a lesser included offense to murder or attempted murder. (People v. Jennings (2010) 50 Cal.4th 616, 668.) Because it was an uncharged, lesser related offense, the trial court had no duty to instruct the jury on the crime of being an accessory to a felony. (Cf. Rundle, supra, 43 Cal.4th at pp. 147-148.)
Nor, contrary to Luong's assertion, did the trial court's failure to instruct the jury on the crime of being an accessory to a felony deprive him of an adequate opportunity to present his defense. Our Supreme Court rejected a similar contention in People v. Whisenhunt (2008) 44 Cal.4th 174, 213, holding: "An accessory instruction was not essential to defendant's defense. Through defendant's testimony and defense counsel's closing argument, the jury was fully apprised of the defense theories that it was [someone else] rather than defendant who [committed the charged offense]." As the record in this case shows, Luong was not prevented from arguing to the jury that his culpability was limited to being, at most, an accessory. Indeed, during closing argument, Luong's trial counsel told the jury, "He's guilty of being [an] accessory after the fact, but that's not one of your choices," and, "He's guilty of helping [Nat] after the shooting." Thus, the lack of an instruction on being an accessory to a felony did not deprive Luong of an adequate opportunity to present his claims.
Moreover, being an accessory after the fact is not a defense to the charged crime of murder; it is a separate criminal offense. A defendant is liable for being an accessory when he or she "harbors, conceals or aids" a principal after a felony is complete. (§ 32.) Being an accessory to murder is not a defense to principal liability for the commission of a murder—it is a discrete crime. (See People v. Jennings, supra, 50 Cal.4th at p. 668 ["[b]eing an accessory to murder is not a defense to aiding and abetting the commission of murder—it is a separate criminal offense"].) Because accessory liability is not a defense to principal liability, Luong was not entitled to instruction on accessory to a felony as a defense to the charge of murder.
For all the foregoing reasons, the trial court did not err in failing to instruct on being an accessory to a felony.
II
The Trial Court Properly Instructed the Jury in the Language of CALCRIM No. 334
Instead of CALCRIM No. 335
Luong next contends that the prosecution's key witness Jimmy Luu was an accomplice as a matter of law, and thus, the trial court should have instructed the jury in the language of CALCRIM No. 335 (Accomplice Testimony: No Dispute Whether Witness is Accomplice), as requested, instead of CALCRIM No. 334 (Accomplice Testimony Must be Corroborated: Dispute Whether Witness is Accomplice). As we shall explain, the trial court properly instructed the jury in the language of CALCRIM No. 334 instead of CALCRIM No. 335, and in any event, any error was harmless.
Section 1111, which governs the use of accomplice testimony at trial, provides: "A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." Section 1111 defines an accomplice "as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given."
" '[W]hether a person is an accomplice is a question of fact for the jury unless the facts and the inferences to be drawn therefrom are undisputed.' [Citations.]" (People v. Johnson (2016) 243 Cal.App.4th 1247, 1269.) To be an accomplice as a matter of law, there can be no dispute that the witness was an accomplice, either with respect to the facts or the inferences to be drawn therefrom. The burden is on the defendant to prove by a preponderance of the evidence that a witness is an accomplice. (People v. Fauber (1992) 2 Cal.4th 792, 834 (Fauber).)
Failure to instruct on accomplice liability is harmless if there is sufficient corroborating evidence in the record. (People v. Lewis (2001) 26 Cal.4th 334, 370.) Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. The evidence is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth. (Fauber, supra, 2 Cal.4th at p. 834.)
Luong argues that Luu was an accomplice as a matter of law because "it was 'clear and undisputed' that [he] was not only 'liable to prosecution for the identical offense[s] charged' against [Luong], it was also 'clear and undisputed' that he was arrested and charged with those offenses." The People dispute Luong's argument that Luu was an accomplice as a matter of law, and argue in the alternative that any error in failing to so instruct the jury was harmless. The People are correct.
As the trial court observed, Luu consistently testified that he had nothing to do with the shootings. Rather, "the best he did was walk over to see what was going on, looked in the window, and then left. [¶] So, it's certainly not undisputed that he was an accomplice." Given Luu's testimony, defendants failed to sustain their burden of establishing Luu's liability as an accomplice as a matter of law. Thus, the trial court properly instructed the jury in the language of CALCRIM No. 334 (Accomplice Testimony Must be Corroborated: Dispute Whether Witness is Accomplice).
In any event, even if the trial court should have instructed the jury with CALCRIM No. 335, it is clear from the record that sufficient corroborating evidence was present to render any error harmless. Luong's car was parked at Randall's rental home behind the Savings Place shopping center on the day of the shooting. Randall, Nat, and Luong were members of KZT, a rival of Hop Sing. Nat and Luong were often together in the weeks leading up to the shooting. Nat was driving the black BMW on the day in question. Shots were fired from the sunroof of the black BMW at Randall's direction. A casing found in the black BMW after the shooting matched those found at the scene of the shooting. Luong was with Nat shortly after the shooting and instructed Bui to destroy the black BMW. Such evidence sufficiently connected Luong with the shooting in such a way as to satisfy the jury that Luu was telling the truth. (See Fauber, supra, 2 Cal.4th at p. 834.) Thus, any possible error in failing to instruct the jury that Luu was an accomplice as a matter of law was harmless. (People v. Lewis, supra, 26 Cal.4th at p. 370.)
III
The Trial Court Properly Admitted Evidence That Cars Parked in Bui's Driveway Had
Been Vandalized the Night Before She Was Scheduled to Testify for the Limited Purpose
of Evaluating Her Credibility
Luong also claims that the trial court erred in admitting evidence that vehicles parked in Michelle Bui's driveway were vandalized the night before she was scheduled to testify at trial. Luong asserts that the evidence should have been excluded as more prejudicial than probative under Evidence Code section 352. Villanueva joins in this argument. There was no error.
At trial, Bui was permitted to testify, over defense objections, that at approximately 1:00 a.m. on the day she was scheduled to testify an unknown person smashed the windows of four vehicles parked in her driveway. Bui thought the windows being broken had something to do with her testifying in this case because it happened the night before she was scheduled to testify and feared something could happen to her family. On cross-examination, Bui acknowledged that Luong was in jail when the windows were broken and that nobody had threatened her about testifying in this case.
The trial court ruled that evidence the cars had been vandalized was admissible for the limited purpose of evaluating Bui's credibility and so instructed the jury. "Ms. Bui testified about the vandalism to her car [sic]. The witness's state of mind, when they are testifying to you, including if they were afraid or if they fear reprisal for their testimony, their state of mind is relevant to your assessment of their testimony, what credibility you give them, what weight you place on their testimony. So you can consider her testimony about the vandalism of the car [sic] for what that may tell you about her state of mind as a witness as she was testifying to you. [¶] But you cannot consider it as evidence in itself as to the defendants' guilt. As you know, the defendants are all in custody. There is no evidence that they were aware of the vandalism to her car [sic], ordered it, instigated it, authorized it, encouraged it in any way. So you are not to consider that testimony by Ms. Bui as reflecting on any conduct by the defendants themselves. [¶] It's relevant if you believe it is relevant to your assessment of her state of mind as a witness, but it is not evidence that the defendants were in any way involved directly or indirectly in the vandalism that occurred to her car [sic] that she told you about." (Italics added.)
"Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witness's fear is likewise relevant to [his or her] credibility and is well within the discretion of the trial court." (People v. Burgener (2003) 29 Cal.4th 833, 869; see also Evid. Code, §§ 210, 780, subd. (f).) The standard for admission of such evidence is very broad. For such evidence to be admissible, the proponent does not have to show the threats or acts against the witness were done by the defendant personally nor does the proponent have to show the witness's fear of retaliation is "directly linked" to the defendant. (People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1588.) "It is not necessarily the source of the threat—but its existence—that is relevant to the witness's credibility." (Burgener, at p. 870.)
The trial court has broad discretion in determining whether evidence is relevant, and if so, whether the evidence nevertheless should be excluded under Evidence Code section 352. We review the trial court's exercise of that discretion under the abuse of discretion standard. (People v. Rogers (2013) 57 Cal.4th 296, 326.)
Luong contends that the standard for admissibility of third-party intimidation evidence is so broad that it violates the accused's due process rights unless Evidence Code section 352 functions as a meaningful limitation upon the admission of such evidence. Evidence of third-party threats, however, is limited by Evidence Code section 352. (People v. Mendoza (2011) 52 Cal.4th 1056, 1085 [trial court has discretion "within the limits of Evidence Code section 352" to permit the introduction of third-party threats].) And, as we discuss below, the record demonstrates that the trial court performed a section 352 analysis and did not abuse its discretion in admitting the evidence here.
At trial, the defense argued that the evidence was unduly prejudicial because although the person responsible for the vandalism was unknown, there was a danger the jury would assume that the vandalism was related to Bui's testimony based on its timing. Luong's trial counsel went even further and asserted that by allowing Bui to testify that the cars were vandalized the night before she was scheduled to testify, the court was "essentially telling the jury that Lam Luong threatened her. And that's tantamount to consciousness of guilt." In ruling that the evidence was admissible, the trial court acknowledged the possibility for misuse but found that it could be cured with a limiting instruction. "There is, on the [Evidence Code section] 352 balance, the possible misuse that the jury would assume that it indicates some consciousness of guilt or activity by the defendants, but I think that can be cured with a limiting instruction." This is precisely the sort of balancing test required by Evidence Code section 352, and the trial court acted well within its discretion in admitting the challenged evidence for the limited purpose of evaluating Bui's credibility as a witness, and by addressing any potential misuse with a limiting instruction.
The evidence was probative on the issue of Bui's credibility, and any prejudice resulting from the admission was substantially lessened by the court's limiting instruction. The trial court instructed the jury that it could consider Bui's testimony about the vandalism for the limited purpose of assessing her credibility, but that it could not "consider it as evidence in itself as to the defendants' guilt." In addition, the court reminded the jury that "the defendants are all in custody," and "[t]here is no evidence that they were aware of the vandalism to her car [sic], ordered it, instigated it, authorized it, encourage it in any way." On this record, we find the risk of undue prejudice was low, and in light of its probative value, the court did not err in denying the defense's request to exclude it under Evidence Code section 352.
IV
Villanueva, Do, and Randall's Convictions for Attempted Murder Are Supported by
Substantial Evidence
Villanueva and Do contend that there is insufficient evidence to support their convictions for attempted murder under either a direct aider and abettor theory or under the natural and probable consequences doctrine. Randall joins in this argument. We shall conclude that there is ample evidence to support these defendants' convictions under the natural and probable consequences doctrine, and thus, need not consider whether there also is sufficient evidence to support their convictions under a direct aider and abettor theory.
"Substantial evidence is evidence that is ' "reasonable in nature, credible, and of solid value." ' [Citation.] 'In reviewing the sufficiency of the evidence, we must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." ' [Citation.] We must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence. [Citation.] 'The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on " 'isolated bits of evidence.' " [Citation.]' [Citation.]" (People v. Medina (2009) 46 Cal.4th 913, 919 (Medina).)
"Under California law, a person who aids and abets the commission of a crime is a 'principal' in the crime, and thus shares the guilt of the actual perpetrator. (§ 31.)" (People v. Prettyman (1996) 14 Cal.4th 248, 259 (Prettyman).) "[A]n aider and abettor is a person who 'acting with (1) 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.' " (Ibid.)
"It sometimes happens that an accomplice assists or encourages a confederate to commit one crime, and the confederate commits another, more serious crime (the nontarget offense). Whether the accomplice may be held responsible for that nontarget offense turns not only upon a consideration of the general principles of accomplice liability set forth [above], but also upon a consideration of the 'natural and probable consequences' doctrine." (Prettyman, supra, 14 Cal.4th at pp. 259-260.)
"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. To convict a defendant of a nontarget crime as an accomplice under the 'natural and probable consequences' doctrine, the jury must find that, with knowledge of the perpetrator's unlawful purpose, and with the intent of committing, encouraging, or facilitating the commission of the target crime, the defendant aided, promoted, encouraged, or instigated the commission of the target crime. The jury must also find that the defendant's confederate committed an offense other than the target crime, and that the nontarget offense perpetrated by the confederate was a 'natural and probable consequence' of the target crime that the defendant assisted or encouraged." (Prettyman, supra, 14 Cal.4th at p. 254.)
"A nontarget offense is a ' "natural and probable consequence" ' of the target offense if, judged objectively, the additional offense was reasonably foreseeable. (Medina, supra, 46 Cal.4th at p. 920.) The inquiry does not depend on whether the aider and abettor actually foresaw the nontarget offense. (Ibid.) 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." ' (Ibid.) Reasonable foreseeability 'is a factual issue to be resolved by the jury.' (Id. at p. 920.)" (People v. Chiu (2014) 59 Cal.4th 155, 161-162 (Chiu).) For a shooting to be reasonably foreseeable in the gang context, it is not necessary for there to have been a prior discussion of or an agreement to a shooting, or for a gang member to have known a fellow gang member was in fact armed. (Medina, at p. 924.)
The prosecution's theory at trial was that Johnson and Luong were the shooters, and that Randall, Villanueva, and Do were guilty either as direct aiders and abettors of the attempted murders or under the natural and probable consequences doctrine.
The jury was instructed in the language of CALCRIM No. 403 in pertinent part as follows:
"Natural and Probable Consequences: Before you may decide whether a defendant is guilty of attempted murder as an aider and abettor as charged in Counts One, Two, Three, and Four, you must decide whether he is guilty of disturbing the peace by challenging someone to fight in violation of Penal Code section 415.
"To prove that the defendant is guilty of attempted murder as an aider and abettor, the People must prove that:
"1. The defendant is guilty of challenging someone to fight;
"2. During the commission of challenging someone to fight, a coparticipant in that crime of challenging someone to fight committed the crime of attempted murder; and
"3. Under all the circumstances, a reasonable person in the defendant's position would have known that the commission of attempted murder was a natural and probable consequence of the commission of challenging someone to a fight.
"A coparticipant in a crime is the perpetrator or anyone who aided and abetted the perpetrator."
Defendants do not dispute that they are guilty of the target offense of challenging Saechao to a fight for purposes of appeal. Rather, they assert that, even assuming they are guilty of the target offense, there is no evidence to support a finding that (1) the perpetrators of the attempted murders—Luong and Johnson—participated in the crime of challenging someone to fight, or (2) the attempted murders were a reasonably foreseeable consequence of challenging Saechao to a fight because it is undisputed that the shooting victims were not present at the time the challenge was issued. We are not persuaded.
Viewing the record as a whole and considering the evidence in the light most favorable to the verdict, as we must, there is sufficient evidence to support a finding that Luong and Johnson participated in a common plan to assault Saechao, which included challenging him to a fight. The evidence adduced at trial showed that Villanueva and Do were members of Viet Pride, Luong, Johnson, and Randall were members of KZT, and Viet Pride and KZT were aligned and shared a common enemy, Hop Sing. Randall was a leader, if not the leader, of KZT. Villanueva, Do, Randall, and Johnson were videotaped peering inside the water store together and milling around outside thereafter. Luong's car was parked in Randall's driveway around the corner from the shopping center on the day of the shooting. Luong and Johnson were in a position to shoot just prior to the shooting and began shooting immediately after Randall yelled, "Chops, light them up."
On this record, the jury reasonably could infer that Luong and Johnson knew of Saechao's presence inside the store and Villanueva, Do, and Randall's efforts to get Saechao to leave the store and engage in a fight, and that Luong and Johnson encouraged and/or facilitated the commission of the target offense by putting themselves in a position to assault (shoot) Saechao if and when he exited the store. Stated another way, there is ample evidence to support the jury's finding that during the commission of challenging someone to a fight, a coparticipant in that crime of challenging someone to fight committed the crime of attempted murder. That Luong and Johnson did not challenge Saechao to a fight or otherwise encourage him to go outside is of no consequence. (People v. Smith (2014) 60 Cal.4th 603, 613 ["The statutes and, accordingly, the natural and probable consequences doctrine, do not distinguish among principals on the basis of whether they directly or indirectly aided and abetted the target crime . . . ."].)
There also is ample evidence to support the jury's finding that a reasonable person in Villanueva, Do, and Randall's positions would have known that the commission of attempted murder was a natural and probable consequence of challenging Saechao to a fight. As the jury was instructed, in deciding whether a consequence is natural and probable, it was required to consider all of the circumstances established by the evidence. Those circumstances included the following: Villanueva, Do, and Randall knew Saechao was a member of a rival gang. Indeed, that was the stated basis for challenging him to a fight. Knowing that was the case, Villanueva and Do, with Randall's knowledge and support, effectively trapped Saechao inside the water store by remaining outside. A reasonable person in Villanueva, Do, and Randall's positions would have or should have known that Saechao, who refused to leave the store, would likely call his fellow gang members for help and that the situation would escalate. Takahashi testified that it was common for members of all three gangs to carry firearms. He explained that "gang members never know when they're going to run into trouble. . . . [T]hey have to be ready to protect themselves at all times. . . . For instance, the rivalry between Hop Sing and Viet Pride is so deep that the likelihood of something very violent happening when their paths cross[ed] [was] very high." Takahashi had previously testified about two separate shootings of Viet Pride gang members by Hop Sing gang members, one of which occurred in the Savings Place shopping center two years earlier.
That the shooting victims were not present when Villanueva and Do challenged Saechao to fight is not dispositive. "The precise consequence need not have been foreseen." (Medina, supra, 46 Cal.4th at p. 927.) It is sufficient that under the factual circumstances of this case that a reasonable person in Villanueva, Do, and Randall's positions would have or should have known that a shooting was a reasonably foreseeable consequence of challenging a rival gang member to fight, and then trapping him inside a store in hostile territory. (Ibid.) Even if Villanueva, Do, and Randall reasonably could not have foreseen the attempted murders of the occupants of the red Honda, under the circumstances of this case, they would or should have known that a shooting was a reasonably foreseeable consequence of challenging Saechao to a fight. (Ibid.)
Because we conclude that there is sufficient evidence to support Villanueva, Do, and Randall's attempted murder convictions under the natural and probable consequences doctrine, we need not consider whether there is also sufficient evidence to support their convictions under a direct aider and abettor theory. "Where the jury considers both a factually sufficient and a factually insufficient ground for conviction, and it cannot be determined on which ground the jury relied, we affirm the conviction unless there is an affirmative indication that the jury relied on the invalid ground." (People v. Thompson (2010) 49 Cal.4th 79, 119.) Defendants have not pointed us to anything in the record that affirmatively indicates that the jury relied on a direct aider and abettor theory in finding them guilty of the attempted murders of J.T., S.V., J.S., or K.S. Nor are we aware of any such affirmative indication in the record. Thus, even assuming for argument's sake that there is insufficient evidence to support a finding that Villanueva, Do, and Randall directly aided and abetted in the attempted murders, their convictions must be affirmed.
In arguing a separate issue—that the trial court erred in instructing the jury that "a person may be convicted of premeditated attempted murder as an aider and abettor even if he did not personally act with willfulness, deliberation and premeditation"—Randall asserts that a question from the jury regarding the premeditation allegation in the verdict form shows that "the jury was focusing on the natural and probable consequence theory of aiding and abetting."
V
Attempted Murder Can Be a Natural and Probable Consequence of Disturbing the Peace
by Challenging Someone to a Fight
Villanueva next contends that he cannot be convicted of attempted murder as the natural and probable consequence of challenging someone to a fight in violation of section 415, a misdemeanor, because a defendant cannot be convicted of attempted murder based on a trivial act. Do joins in this argument. As we shall explain, Villanueva and Do's commission of the target offense of challenging someone to a fight was not a trivial act under the circumstances of this case.
While characterized as instructional error, Villanueva's additional claims concerning the connection between the target and nontarget offenses and foreseeability go to the sufficiency of the evidence and are addressed above in part IV of the Discussion.
As Villanueva notes, in Prettyman, supra, 14 Cal.4th at page 269, our Supreme Court observed that "[m]urder . . . is not the 'natural and probable consequence' of 'trivial' activities. To trigger application of the 'natural and probable consequences' doctrine, there must be a close connection between the target crime aided and abetted and the offense actually committed." Villanueva appears to assume that a misdemeanor offense necessarily involves a trivial act. He is mistaken.
In People v. Canizalez (2011) 197 Cal.App.4th 832, 853, our colleagues in the Second District Court of Appeal rejected a claim that a defendant cannot be convicted of murder as the natural and probable consequence of a misdemeanor. "Given that the natural and probable consequences doctrine looks to the reasonable likelihood that the nontarget [offense] will result from the target offense, it would appear that applying the label 'felony' or 'misdemeanor' to the target offense is not talismanic in deciding whether the aider and abettor can be convicted of a nontarget murder. The key factor is the ability to anticipate the likelihood that the nontarget offense will result from the target offense. We cannot look to the naked elements of the target crime but must consider the full factual context in which appellants acted." (Id. at p. 854.)
Given the full factual context in which Villanueva and Do acted, as previously discussed (challenging a rival gang member to a fight and effectively trapping him inside a store in hostile territory), the likelihood that a shootout would occur as the result of challenging Saechao to a fight was reasonably foreseeable. Accordingly, the jury was properly instructed that defendants could be convicted of attempted murder based on their conduct in challenging Saechao to a fight.
VI
The Trial Court Properly Instructed the Jury on Attempted Premeditated Murder
Villanueva and Randall contend that the trial court prejudicially erred in instructing the jury that it could find a defendant guilty of attempted premeditated murder, as opposed to attempted murder, if (1) the defendant or principal acted willfully and with premeditation and deliberation, or (2) under all the circumstances, a reasonable person in the defendant's position would have known that the commission of attempted murder (as opposed to attempted premeditated murder) was a natural and probable consequence of challenging someone to fight. They assert that the trial court should have instructed the jury that it was required to find that a defendant personally acted willfully and with premeditation and deliberation, or that a reasonable person in the defendant's position would have known that the commission of attempted premeditated murder was a natural and probable consequence of challenging someone to fight. Do, Johnson, and Luong join in these arguments. Unlike Villanueva, Do, and Randall, the evidence adduced at trial supported a finding that Johnson and Luong fired at the victims, and thus, were guilty as direct perpetrators of the attempted murders. Accordingly, they assert that they were denied their federal constitutional rights to due process of law and a fair trial by the court's instruction that the People need not prove that they personally premeditated and deliberated each attempted murder. As we shall explain, the jury was properly instructed.
The jury was instructed in the language of CALCRIM No. 601 in pertinent part as follows: "If you find the defendant guilty of attempted murder in Counts One, Two, Three, or Four, you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully and with deliberation and premeditation. . . . The attempted murder was done willfully and with deliberation and premeditation if either the defendant or principal or both of them acted with that state of mind."
During deliberations, the jury sent the following request to the trial court: "Can you confirm that the question: 'We the jury in the above entitled cause, find the allegation that the aforesaid attempted murder was committed willfully, deliberately and with premeditation, within the meaning of Penal Code section 664(a) to be' relates to the crime itself and not to the exact defendant whose name appears on the verdict?" The trial court responded, "If the jury finds the defendant guilty of attempted murder, the jury must then make a separate finding whether the murder attempted was willful, deliberate and premeditated. A person may be convicted of premeditated attempted murder as an aider and abettor even if he did not personally act with willfulness, deliberation and premeditation."
"Subdivision (a) of section 664 of the Penal Code (section 664(a)) provides that, as a general matter, a person guilty of attempted murder must be punished by imprisonment for five, seven, or nine years. It goes on to provide, however, that, 'if the [murder] attempted is willful, deliberate, and premeditated . . . , the person guilty of that attempt shall be punished by imprisonment . . . for life . . . . The additional term provided . . . for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact.' " (People v. Lee (2003) 31 Cal.4th 613, 616, fn. omitted (Lee).) Subdivision (a) of section 664 "does not create a greater degree of attempted murder, but rather constitutes a penalty provision increasing the punishment for attempted murder beyond the maximum otherwise prescribed, when the murder attempted was willful, deliberate, and premeditated." (Lee, at p. 616, citing People v. Bright (1996) 12 Cal.4th 652, 655-657, disapproved on other grounds by People v. Seel (2004) 34 Cal.4th 535, 550, fn. 6.)
In Lee, supra, 31 Cal.4th at page 620, the court considered "whether section 664[, subdivision] (a) requires that in order to be punished with life imprisonment for attempted murder as an aider and abettor, an individual must personally act with willfulness, deliberation, and premeditation." The court held that section 664, subdivision (a) did not include any such requirement, explaining, "[S]ection 664[, subdivision] (a) makes no distinction between an attempted murderer who is guilty as a direct perpetrator and an attempted murderer who is guilty as an aider and abettor, nor does it draw any distinction between an attempted murderer who personally acted with willfulness, deliberation, and premeditation and an attempted murderer who did not so act." (Lee, at p. 623.) Accordingly, the court concluded that "section 664[, subdivision] (a) properly must be interpreted to require only that the murder attempted was willful, deliberate, and premeditated, but not to require that an attempted murderer personally acted with willfulness, deliberation, and premeditation, even if he or she is guilty as an aider and abettor." (Id. at p. 627.)
In People v. Favor (2012) 54 Cal.4th 868 (Favor), the court extended Lee to aider and abettor liability for attempted premeditated murder under the natural and probable consequences doctrine. There, like here, the defendant argued that the trial court erred in failing to instruct the jury that it had to find not only that the attempted murder was a natural and probable consequence of the target offense, but also that the perpetrator's willfulness, deliberation, and premeditation were natural and probable consequences. (Id. at p. 874.) Relying on its earlier decisions in Bright and Lee, the court rejected the argument. "Because section 664[, subdivision] (a) 'requires only that the attempted murder itself was willful, deliberate, and premeditated' [citation], it is only necessary that the attempted murder 'be committed by one of the perpetrators with the requisite state of mind.' [Citation.] Moreover, the jury does not decide the truth of the penalty premeditation allegation until it first has reached a verdict on the substantive offense of attempted murder. [Citation.] Thus, with respect to the natural and probable consequences doctrine as applied to the premeditation allegation under section 664[, subdivision] (a), attempted murder—not attempted premeditated murder—qualifies as the nontarget offense to which the jury must find foreseeability. Accordingly, once the jury finds that an aider and abettor, in general or under the natural and probable consequences doctrine, has committed an attempted murder, it separately determines whether the attempted murder was willful, deliberate, and premeditated." (Id. at pp. 879-880.)
Two years later in Chiu, supra, 59 Cal.4th 155, the court addressed whether a defendant could be convicted of first degree premeditated murder under the natural and probable consequences doctrine and concluded 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 . . . stated public policy concern of deterrence." (Id. at pp. 157, 165-166.) In doing so, the court distinguished its earlier decision in Favor as follows: "Unlike Favor, the issue in the present case does not involve the determination of legislative intent as to whom a statute applies. Also, unlike Favor, which involved the determination of premeditation as a requirement for a statutory penalty provision, premeditation and deliberation as it relates to murder is an element of first degree murder. . . . Finally, the consequence of imposing liability for the penalty provision in Favor is considerably less severe than in imposing liability for first degree murder under the natural and probable consequences doctrine." (Id. at p. 163.)
Defendants argue that Chiu should be extended to convictions for attempted premeditated murder. As our colleagues in Division Seven of the Second Appellate District recently explained in rejecting an identical request, Chiu "addressed only whether a person may be convicted of first degree premeditated murder under the natural and probable consequences doctrine, and specifically distinguished . . . Favor. Simply put, there is no language in Chiu that overrules or otherwise questions the continuing validity of . . . Favor." (People v. Gallardo (2017) 18 Cal.App.5th 51, 85.) Until our Supreme Court decides otherwise, Favor, cited approvingly in Chiu, remains controlling authority, and we are bound by the decisions of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendants also contend that the United States Supreme Court's decision in Alleyne v. United States (2013) 570 U.S. 99 (Alleyne) "eviscerated California's distinction between a penalty provision versus an element of the offense," one of the factors relied upon by Chiu in distinguishing Favor, and as a result, the trial court was required to instruct the jury that it could not find defendants guilty as aiders and abettors under the natural and probable consequences doctrine without finding that they personally acted with willfulness, deliberation, and premeditation. We are not persuaded.
As a preliminary matter, "Alleyne was decided approximately one year before Chiu. Although Chiu addressed Lee and Favor at length, it did not mention Alleyne, or provide any indication that Alleyne had undermined its prior holdings in those cases. We presume the Supreme Court was aware of Alleyne when it issued Chiu." (People v. Gallardo, supra, 18 Cal.App.5th at p. 85.)
Moreover, at least as applied in this case, the sentencing scheme set forth in section 664, subdivision (a) complies with the rule set forth in Alleyne. In Alleyne, the court held, based on Apprendi v. New Jersey (2000) 530 U.S. 466 , that any fact that increases a mandatory minimum sentence qualifies as an element of the crime and must be submitted to the jury. (Alleyne, supra, 570 U.S. at p. 103.) Subdivision (a) of section 664 expressly provides that "[t]he additional term provided in this section for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact." (Italics added.) As detailed above, the jury was so instructed here.
Finally, any error was harmless beyond a reasonable doubt because the evidence was "overwhelming and uncontroverted" that Luong and Johnson personally acted willfully and with premeditation and deliberation, and that the reasonably foreseeable attempted murders would be willful, deliberate, and premeditated. (People v. Merritt (2017) 2 Cal.5th 819, 832 [" '[W]here a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.' "].)
There is no evidence that would support a finding that Luong and Johnson's actions in shooting at the occupants of the red Honda were unplanned, accidental, or spontaneous. Nor is there any evidence that would support a finding that defendants' actions would lead to an unplanned, accidental, or spontaneous attempted murder. To the contrary, Do, Villanueva, and Randall, members of Viet Pride and KZT, challenged Saechao, a member of rival Hop Sing, to a fight, then effectively trapped Saechao inside a store in hostile territory, while Johnson and Luong, members of KZT, waited outside ready to shoot either Saechao himself or rival gang members who might arrive at the scene to help him. On this record, any error in failing to instruct the jury that a defendant must personally act willfully and with premeditation and deliberation, or that a reasonable person in defendants' position would have known that the commission of attempted premeditated murder was a natural and probable consequence of challenging someone to fight was harmless.
VII
The Natural and Probable Consequences Doctrine Does Not Violate the Separation of
Powers Doctrine, Due Process Clause, or Section 6 of the Penal Code
Villanueva also claims that the natural and probable consequences doctrine violates the separation of powers doctrine, the due process clause, and section 6 of the Penal Code because it is a judicial creation of a nonstatutory crime. Do joins in this argument. The argument lacks merit.
Villanueva argues that his convictions for attempted murder, which are based on the judicially created natural and probable consequences doctrine, are invalid because the Legislature alone is empowered to define the elements of crimes. For authority, he cites article III, section 3 of the California Constitution. But this section merely states in general terms the idea that there must be a separation of powers among the coordinate branches of government. (See Cal. Const., art. III, § 3 ["The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution."].) He also relies on case law interpreting section 6 of the Penal Code, which provides in relevant part that "[n]o act or omission . . . is criminal or punishable, except as prescribed or authorized by this code." In Keeler v. Superior Court (1970) 2 Cal.3d 619, 631, superseded by statute on other grounds as stated in People v. Taylor (2004) 32 Cal.4th 863, 870, our Supreme Court described this section as embodying "a fundamental principle of our tripartite form of government, i.e., that subject to the constitutional prohibition against cruel and unusual punishment, the power to define crimes and fix penalties is vested exclusively in the legislative branch." Where the statutory language in the Penal Code is vague, however, " 'the statutory definition permits, even requires, judicial interpretation.' " (Chiu, supra, 59 Cal.4th at p. 164.)
Section 31, which establishes that aiders and abettors of crimes are treated as principals, does not define aiding and abetting and "does not expressly mention the natural and probable consequences doctrine." (Chiu, supra, 59 Cal.4th at p. 164.) Consequently, the courts "may . . . determine the extent of aiding and abetting liability for a particular offense, keeping in mind the rational function that the doctrine is designed to serve and with the goal of avoiding any unfairness which might redound from too broad an application." (Ibid.)
In addition, our Supreme Court has rejected challenges that the natural and probable consequences doctrine violates due process by eliminating the prosecution's obligation to prove malice. (See, e.g., People v. Letner and Tobin (2010) 50 Cal.4th 99, 184-185.) It also has ruled that the natural and probable consequences doctrine is "an 'established rule' of American jurisprudence" that has been embraced in California. (Prettyman, supra, 14 Cal.4th at p. 260; see also People v. Gonzalez and Soliz (2011) 52 Cal.4th 254, 300.)
Because "[t]he natural and probable consequences doctrine was recognized at common law and is firmly entrenched in California law as a theory of criminal liability" (Chiu, supra, 59 Cal.4th at p. 163), Villanueva's argument to the contrary fails.
VIII
The Trial Court Did Not Err in Failing to Give a Unanimity Instruction
Johnson contends that the trial court prejudicially erred "in failing to sua sponte instruct the jury that it was required to unanimously agree as to the specific criminal act that formed the basis for its verdicts of attempted murder in counts 1 through 4, and in connection with the premeditation and deliberation enhancement allegations as to each of those offenses." According to Johnson, "some jurors may have believed [he was] guilty based on one act, while others may have believed him guilty based on another, and there is a basis for disagreement among the jurors as to the act constituting the charged offenses and enhancements." The remaining defendants join in this argument. The argument lacks merit.
"In a criminal case, a jury verdict must be unanimous." (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) "Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (Ibid.) "The key to deciding whether to give the unanimity instruction lies in considering its purpose. The jury must agree on a 'particular crime' [citation]; it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed [his or her] guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate 'when conviction on a single count could be based on two or more discrete criminal events,' but not 'where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.' [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction." (Id. at pp. 1134-1135.)
Johnson contends that the prosecution asserted several theories of liability (director perpetrator, aiding and abetting an attempted murder, and aiding and abetting based on the predicate crime of disturbing the peace by challenging someone to fight), and that the theories of liability were based on "various purported acts . . . , any one of which might have constituted the offenses charged in counts 1 through 4 . . . ." Johnson identifies the following "acts": (1) Luong fired shots at all four victims, intending to kill each one, and Johnson aided and abetted Luong; (2) Johnson fired shots at all four named victims, intending to kill each one; (3) Luong fired shots at only the victims he saw exit the car, intending to kill them, and Johnson aided and abetted Luong, and Johnson fired shots at the other two victims, intending to kill them; and (4) Randall fired shots at all four victims, intending to kill each one, and Luong and Johnson aided and abetted Randall.
As previously discussed, the jury must agree on a particular crime, "[b]ut unanimity as to exactly how the crime was committed is not required." (Russo, supra, 25 Cal.4th at pp. 1134-1135.) In other words, "the unanimity instruction is appropriate 'when conviction on a single count could be based on two or more discrete criminal events,' but not 'where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.' [Citation.]" (Id. at p. 1135.) Here, there was no risk that the jury would divide on two discrete crimes and not agree on any particular crime. Rather, the evidence presented the possibility the jury may divide, or be uncertain, as to the exact way Johnson was guilty of a single discrete crime. The same is true with respect to the other defendants. Accordingly, a unanimity instruction was not required. (See ibid.)
IX
There Is Sufficient Evidence to Support the Jury's Finding That Villanueva Committed
the Attempted Murders in Association With KZT, With the Specific Intent to Assist in
Criminal Conduct by KZT Gang Members
Villanueva challenges the true findings on the gang enhancements. He contends that there is insufficient evidence to establish Viet Pride or KZT's primary activities, or a pattern of criminal activity. He is mistaken.
A gang enhancement requires that the defendant commit the underlying felony "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (§ 186.22, subd. (b)(1).)
Before we address the merits of Villanueva's claim, we pause to note that the amended information alleged and the jury found that Villanueva committed the attempted murders "for the benefit of, at the direction of, or in association with, a criminal street gang, to wit, KZT, with the specific intent to promote, further, or assist in criminal conduct by said gang members . . . ." (Italics added.) Thus, the People were not required to prove that Viet Pride met the requirements for a criminal street gang under section 186.22, subdivision (f). We understand that the evidence showed that Villanueva was a member of Viet Pride, not KZT. Villanueva's gang membership, however, is not dispositive. Rather, the salient question is whether Villanueva committed the attempted murders for the benefit of, at the direction of, or in association with KZT, and with the specific intent to promote, further or assist in the criminal conduct of its members. (§ 186.22, subd. (b).) There is ample evidence in the record to support a finding that he did. As detailed above, Villanueva and Do committed the target crime of challenging someone to a fight in association with KZT members Randall, Johnson, and Luong, and evidence concerning Viet Pride's relationship with KZT and their common rival Hop Sing explained why members of the two gangs would cooperate in challenging a Hop Sing gang member to a fight.
This is not to say that Villanueva's membership in Viet Pride is not relevant. It plainly is. The People, however, were not required to prove that Viet Pride was a "criminal street gang" under section 186.22, subdivision (f) for purposes of establishing the gang enhancement in this case.
Turning to the merits of Villanueva's claim, as it relates to KZT, the provisions of section 186.22 naturally require proof of the existence of a "criminal street gang." (People v. Vasquez (2016) 247 Cal.App.4th 909, 922.) A "criminal street gang" is defined in terms of four elements: It must be "[(1)] any ongoing organization, association, or group of three or more persons, whether formal or informal, [(2)] having as one of its primary activities the commission of one or more [specified] criminal acts . . . , [(3)] having a common name or common identifying sign or symbol, and [(4)] whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." (§ 186.22, subd. (f).)
The first and third elements are not at issue here. "To establish the second element, the nature of the gang's primary activities, the trier of fact may look to both the past and present criminal activities of the gang. [Citation.] Isolated criminal conduct, however, is not enough. 'Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute.' [Citation.] Expert testimony based on an adequate factual foundation might also be sufficient. [Citation.]" (In re Alexander L. (2007) 149 Cal.App.4th 605, 611 (Alexander L.).) In People v. Nguyen (2015) 61 Cal.4th 1015, 1068, our Supreme Court held that a gang expert's testimony that "some of the primary activities of the [gang in question] were 'homicides, attempted homicides, assaults, assault[s] with deadly weapons, home invasion robberies, burglaries, auto theft, narcotic sales,' " nearly all which were crimes enumerated in the statute, was sufficient.
With respect to the fourth element, pattern of criminal activity, "A gang engages in a 'pattern of criminal gang activity' when its members participate in 'two or more' statutorily enumerated criminal offenses (the so-called 'predicate offenses') that are committed within a certain time frame and 'on separate occasions, or by two or more persons.' " (People v. Zermeno (1999) 21 Cal.4th 927, 930.) The People may rely on evidence of the defendant's commission of a currently charged offense to satisfy this requirement. (People v. Loeun (1997) 17 Cal.4th 1, 10; accord, People v. Tran (2011) 51 Cal.4th 1040, 1046.) It is enough to show that a predicate crime was committed; a conviction is unnecessary. (People v. Garcia (2014) 224 Cal.App.4th 519.) The crimes necessary to establish a pattern of criminal gang activity need not be gang related. (Alexander L., supra,149 Cal.App.4th at p. 611.)
Takahashi testified that KZT's primary activities included burglary, possession for sale of methamphetamine and marijuana, felon in possession of a firearm, carrying a concealed weapon, carrying a loaded firearm in a public place, attempted murder, and shooting at occupied dwellings. He also provided details of several such crimes. In 2011, a KZT gang member was convicted of possessing 38 pounds of processed marijuana for sale and being a felon in possession of a firearm. In July 2010, a KZT gang member was convicted of being a minor in possession of a firearm in violation of section 29610. In October 2010, a member of the Asian Little Thug gang, a subset of KZT, was convicted of assault with a deadly weapon. And in July 2010, a KZT gang member was convicted of conspiracy to transport narcotics for sale.
Villanueva does not dispute that the crimes asserted by Takahashi as KZT primary activities are among the criminal acts enumerated in section 186.22, subdivision (e). (§ 186.22, subd. (e)(3), (4), (5), (11), (32), (33).) Rather, he argues that "[t]here was an inadequate basis for [Takahashi's] testimony" because he "cited to no specific basis for the source of his opinions." According to Villanueva, the testimony "may have been based on reliable sources, such as court records, or on entirely unreliable hearsay."
Randall and Do join in this aspect of Villanueva's argument.
Villanueva's argument ignores Takahashi's testimony that he had spoken to at least 100 Asian gang members, had numerous contacts with KZT gang members, investigated at least 20 Asian gang-related crimes, and reviewed at least 100 reports regarding such crimes. To the extent Villanueva claims that portions of Takahashi's testimony about the gangs' primary activities impermissibly was based on hearsay, the claim lacks merit. A gang expert may testify to " 'non-case-specific general background information about [the gang], its rivalry with [another gang], its primary activities, and its pattern of criminal activity, even if it was based on hearsay sources.' " (People v. Blessett (2018) 22 Cal.App.5th 903, 944, review granted Aug. 8, 2018, S249250, quoting People v. Meraz (2016) 6 Cal.App.5th 1162, 1175, review granted March 22, 2017, S239442.)
Villanueva's reliance on Nathaniel C. (1991) 228 Cal.App.3d 990 (Nathaniel C.) in support of his argument that there was an inadequate foundation for Takahashi's testimony is misplaced. In Nathaniel C., the Court of Appeal found that the evidence was insufficient to show that a primary activity of a particular gang (the Family) was the commission of any of statutorily specified offenses. (Id. at p. 1004.) The expert in that case testified that "the primary activity of all of the gangs in his area [was] criminal" and "gave a general list of the crimes he had in mind, only one of which—assault with a deadly weapon—[was] included among the . . . offenses specified in the statute." (Id. at pp. 1004-1005.) The expert "did not identify the Family as one of the gangs in his area" and instead "made a point of stating that the Family's base is in San Bruno rather than his jurisdiction, South San Francisco." (Ibid.) The court reasoned that while the "primary activity" element is "a proper subject of expert opinion, here the opinion did not relate specifically to the Family and its activities. Thus, the evidence failed to establish that a primary activity of the Family is commission of one or more of the offenses specified by the statute." (Id. at p. 1005.)
In contrast, Takahashi's opinion related specifically to KZT and its activities. Moreover, in addition to testifying about KZT's primary activities, Takahashi offered detailed descriptions of various incidents that resulted in the conviction of KZT gang members for statutorily enumerated offenses.
Villanueva also relies on Alexander L., supra, 149 Cal.App.4th 605, in support of his argument that Takahashi's testimony lacks foundation. In that case the Court of Appeal found that there was insufficient evidence that a primary activity of the gang in question was committing one or more of the enumerated crimes. There, the gang expert provided the following testimony on the issue of primary activities: " 'I know they've committed quite a few assaults with a deadly weapon, several assaults. I know they've been involved in murders. [¶] I know they've been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.' " (Id. at p. 611.) There was no testimony regarding the basis of the expert's knowledge, and on cross-examination, the expert acknowledged that the vast majority of cases with which he was familiar involved graffiti. (Id. at p. 612.)
In contrast, Takahashi's testimony was based in part on his personal experience in investigating gang crimes, contacting gang members, reading reports of gang crimes, and communicating regularly with fellow police officers. He also identified multiple statutorily enumerated offenses that served as KZT's primary activities and provided specific examples of such crimes that had been committed by KZT gang members.
Villanueva also asserts that "[t]he evidence supporting the 'pattern of criminal gang activity' element was . . . insufficient because of the limiting instruction given [to] the jury." The jury was instructed that it could consider evidence of gang activity for the limited purpose of (1) deciding whether a defendant acted with the knowledge, intent, or purpose that are required for the gang enhancement, (2) deciding whether a defendant had a motive to commit any of the crimes charged, (3) evaluating the credibility or believability of a witness, and (4) considering the facts and information relied on by an expert witness in reaching his or her opinion. The jury was explicitly instructed, "You may not consider evidence of gang activity for any other purpose. And specifically what I'm talking about is you may not conclude from evidence of gang activity in general that any defendant is a person of bad character or that he has a disposition to commit crime." According to Villanueva, this limiting instruction precluded the jury from considering Takahashi's testimony concerning gang activity in deciding whether members of KZT were engaged in a pattern of criminal activity, and without that testimony, there was no evidence to support a finding that members of KZT were so engaged.
As detailed above, Takahashi testified in detail about the history and culture of KZT, he described its primary activities, and provided specific examples of those criminal activities. Of particular significance here, he based his opinion that KZT was a criminal street gang in part on such information. Villanueva acknowledges that the jury was permitted to consider the evidence of gang activity when considering the facts and information relied on by Takahashi in reaching his opinions, but appears to assert that the jury nevertheless was precluded from considering Takahashi's testimony in deciding whether members of KZT were engaged in a pattern of criminal activity because "the law is well established that facts admitted as the basis for an expert's opinion are not to be considered for the truth of the matters asserted. (See, e.g., People v. Coleman (1985) 38 Cal.3d 69, 92 . . . .)"
The law concerning expert testimony has evolved since the briefing on appeal was completed in this case. In People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), our Supreme Court concluded that "an expert's testimony regarding the basis for an opinion must be considered for its truth by the jury." (Id. at p. 679.) The court also distinguished between general background information and case-specific facts, and found that an expert may relate background information regarding his or her knowledge and expertise, as well as premises generally accepted within his or her field, even though such testimony is offered for its truth. (Id. at pp. 683, 685 ["such background information has never been subject to exclusion as hearsay, even though offered for its truth"].) As relevant here, Takahashi was free to testify concerning general background information relating to gang culture and the "history and general operations" of KZT (id. at p. 698), including general background testimony about KZT's operations, primary activities, and pattern of criminal activities, which was unrelated to defendants or the current crimes (People v. Meraz, supra, 6 Cal.App.5th at p. 1175, review granted; accord, People v. Vega-Robles (2017) 9 Cal.App.5th 382, 411). For all the foregoing reasons, we conclude that there is sufficient evidence to support the jury's finding that KZT is a criminal street gang within the meaning of section 186.22, subdivision (b).
As we discuss below, an expert generally is precluded under state law from relating case-specific facts, i.e., "those relating to the particular events and participants alleged to have been involved in the case being tried," about which he or she has no personal knowledge, and under the confrontation clause if the statements are also testimonial. (Sanchez, supra, 63 Cal.4th at pp. 676, 685.) In other words, "If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception." (Id. at p. 684.) Where the case-specific out-of-court statements are also testimonial and the Crawford exceptions do not apply, their admission also violates the confrontation clause. (Id. at p. 685.)
X
The Trial Court Erred in Admitting Evidence of Villanueva's Prior Contacts with Police,
But the Error Was Harmless Beyond a Reasonable Doubt
Villanueva next contends that the evidence regarding his prior contacts with police should have been excluded on hearsay grounds and its admission violated his Fifth Amendment right to confrontation under Crawford v. Washington (2004) 541 U.S. 36 . We agree that the trial court erred in admitting the challenged evidence but conclude that the error was harmless beyond a reasonable doubt.
At trial, Takahashi testified that he considered the following "contacts" in forming his opinion that Villanueva was a Viet Pride gang member. In February 2010, a law enforcement officer observed Villanueva at a Starbucks on Florin Road with Luu, a verified Viet Pride gang member, and Luong, a verified KZT gang member. In March 2006, Villanueva was contacted with David Le, a verified Viet Pride gang member, in connection with a robbery investigation. Later that same day, Villanueva was contacted with Le and Tommy Tran, a verified Viet Pride gang member, for a curfew violation. In April 2006, Villanueva was contacted with his brother Aaron and Sonny Luu, Hop Sing gang members, during a vehicle stop. A gun was found in the car, and Villanueva claimed that the gun belonged to him. In February 2008, Villanueva was involved in a fight at a movie theater along with several Asian males during which participants were heard yelling, "Crips." In July 2008, Villanueva was arrested when marijuana was found in his room during a probation search. He later was found in possession of MDMA during a vehicle stop. In August 2008, Villanueva was arrested for possession of MDMA while in the presence of Viet Pride gang members and associates. In July 2010, Villanueva was contacted in a car with Viet Pride gang members, and police found guns and crystal methamphetamine inside the car. In May 2011, Villanueva was contacted in a car with three Viet Pride gang members.
"If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception." (Sanchez, supra, 63 Cal.4th at p. 684.) "Ordinarily, an improper admission of hearsay would constitute statutory error under the Evidence Code. Under Crawford, however, if that hearsay was testimonial and Crawford's exceptions did not apply," its admission "would also be an error of federal constitutional magnitude." (Id. at p. 685.)
Here, it is clear from the record that most, if not all, of Takahashi's testimony concerning Villanueva's contacts with Viet Pride gang members constituted hearsay in that it consisted of out-of-court statements that were offered for the truth of the matter asserted. (Evid. Code, § 1200, subd. (a); Sanchez, supra, 63 Cal.4th at p. 684.) Takahashi testified that he obtained the information by "reviewing reports, interviews that [he] participated in, and in speaking with other Asian gang experts." Thus, his testimony could not have been based on his personal knowledge. The record also makes plain that at least some of his testimony was gleaned from police reports or similar materials. In addition to Takahashi's testimony that he obtained some of the information by "reviewing reports," Takahashi testified about various incidents in which Villanueva was contacted by "law enforcement" and observed to be in the company of Viet Pride gang members, including a vehicle stop conducted by "Officer Hasegawa of the Sacramento Police Department," and an arrest "by Sacramento Police Department." Because the testimony was based on police reports or similar material, it was testimonial. (Sanchez, at p. 694.) Finally, because the contacts to which he testified involved Villanueva, his testimony consisted of case-specific facts. (Id. at p. 676.) Accordingly, the admission of the challenged evidence violated state law and Villanueva's rights under the confrontation clause. As we shall explain, the error was harmless beyond a reasonable doubt.
"Confrontation clause violations are subject to federal harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24 ." (People v. Geier (2007) 41 Cal.4th 555, 608.) Under Chapman, the People must prove the errors were harmless beyond a reasonable doubt, that is, the errors did not contribute to the jury's verdict. (People v. Houston (2012) 54 Cal.4th 1186, 1233; Sanchez, supra, 63 Cal.4th at p. 699.) " 'To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision." (People v. Neal (2003) 31 Cal.4th 63, 86.)
Villanueva asserts that the admission of such "highly inflammatory activities, which were not established by the adjudication of convictions, was highly prejudicial in light of the dearth of evidence of [his] involvement in gang activities." He also claims that the challenged evidence "allowed the jury to ascertain a motive for [his] involvement, and to congeal the liability for this brutal shooting against anyone with any known ties to gangs that was at the scene of the shooting." We disagree.
Contrary to Villanueva's assertion, putting aside the challenged evidence, there is overwhelming evidence that Villanueva was a member of or affiliated with Viet Pride and was motivated by his membership in that gang when he committed the target crime of challenging Saechao to a fight. Luu testified that he had known Villanueva for five or six years, and when asked whether Villanueva had any gang affiliations, Luu responded that "he was hanging out with us. We was known as Viet Pride Crips." Both Luu and Takahashi testified that Villanueva had a "Rest in Peace, Gia Huynh or aka Yogi" tattoo, which was a common tattoo of Viet Pride gang members. Takahashi also identified two photographs of Villanueva posing with KZT and Viet Pride gang members. In addition, Villanueva was with KZT and Viet Pride gang members on the day in question. He and another Viet Pride gang member, Do, confronted a Hop Sing gang member, called him "Hop Chop," told him that he was in their territory, and challenged him to come outside and fight. When Luu asked Villanueva and Do what was going on, one or both of them told Luu that there was a "Hop Chop" inside. The Savings Place shopping center where the shooting took place was a known gathering place for KZT gang members. Significantly, much of Villanueva's activity on the day in question, including his presence outside the water store, his contacts with Saechao, and his association with Randall and Johnson, Do, and Luu, was captured on videotape and shown to the jury. Given this evidence, no reasonable juror could conclude that Villanueva's actions were not gang motivated, and any error in admitting evidence of Villanueva's prior contacts with police was harmless beyond a reasonable doubt.
XI
There Is Insufficient Evidence to Support Randall's Conviction for Possession of MDMA
for Sale
Randall claims that his conviction for possession of MDMA for sale must be reversed because there is insufficient evidence to show "that he knew that there was any contraband in the bedroom closet [where the MDMA was found] and/or that he exercised individual or joint dominion and control over the drugs." We agree.
At trial, evidence was presented linking Randall with three separate residences. The first was an apartment on Power Inn Road that he had registered with the parole department. Police searched that apartment and found two bags each containing 10,000 empty pill capsules. The police also found 100 to 200 red capsules filled with an unknown white substance.
The second residence was the house Randall rented on Casa Grande Way. Police searched that residence and, in addition to the .45-caliber semiautomatic firearm found in the toilet tank, found four baggies each containing between 13 and 121 grams of cocaine.
The third residence was a house on Glen Rachael Court. Based on information obtained from Randall's GPS monitor, police were able to determine that after the shooting, Randall went to the apartment on Power Inn Road and then to a house on Glen Rachael Court, where he stayed for less than five minutes. Police searched that house at 1:45 a.m. on January 13, 2012, and found two kilos of MDMA, along with two pairs of women's size small sweatpants and a pair of men's athletic shorts inside a duffle bag in a bedroom closet. They also found $6,790 in cash and miscellaneous receipts and paperwork in an envelope under the mattress. In addition, there was a photograph of Randall and his girlfriend on the refrigerator in the kitchen. The MDMA found in the bedroom closet on Glen Rachael Court forms the basis for Randall's conviction.
"The essential elements of unlawful possession of a controlled substance are 'dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character. Each of these elements may be established circumstantially.' [Citations.]" (People v. Martin (2001) 25 Cal.4th 1180, 1184.) Possession may be demonstrated by actual physical possession or constructive possession. (People v. Williams (1971) 5 Cal.3d 211, 215.) "Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another." (Ibid.)
"[T]he totality of circumstances will determine whether a defendant has exercised the requisite control over contraband in the hands of another." (Armstrong v. Superior Court (1990) 217 Cal.App.3d 535, 539.) We thus review the evidence in its entirety, rather than consider isolated bits of evidence. (People v. Slaughter (2002) 27 Cal.4th 1187, 1203.)
The People contend that based on the facts set forth above, "it was certainly reasonable for the jury to find Randall guilty of the possession of a controlled substance for sale charge." "Every house associated with [Randall] contained drugs and other evidence . . . that was consistent with possessing drugs for sale," "there was undeniable evidence that Randall was inside the Glen Rachael Court house just hours before it was searched and the drugs were found," and "a picture of Randall and his girlfriend was found on the refrigerator in the house, providing even further evidence of his connection to that house."
While there is evidence Randall visited the house on Glen Rachael Court several hours before the MDMA was found, "more than mere presence must be shown in order to prove constructive possession: the People must also show that defendant had dominion and control over the contraband." (People v. Jenkins (1979) 91 Cal.App.3d 579, 584.) Such evidence is missing in the case. There is no evidence linking Randall to the bedroom in which the MDMA was found, such as clothing, mail, paperwork, pictures, or fingerprints. While Randall's picture was found on the refrigerator in the kitchen, there is no evidence that he lived there or was a frequent visitor. There is no evidence he had a key to the house or that anything in it was his. Indeed, there is no evidence as to who owned or rented the house. Even assuming the jury could infer from the evidence collected at the other two residences that Randall was a drug dealer, there is insufficient evidence from which a jury reasonably could conclude that he possessed the MDMA found in the Glen Rachael Court house for sale or any other purpose. His presence at the house hours earlier and his photograph on the kitchen refrigerator alone do not establish that he maintained control or a right to control the MDMA found in the bedroom. Accordingly, Randall's conviction for possession of MDMA for sale must be reversed.
XII
Luong Is Entitled to Additional Custody Credit
Luong contends and the People agree that he is entitled to additional days of presentence custody credit. The trial court granted Luong 730 days of custody credit, consisting of 635 days for actual time in custody, plus an additional 95 days of good conduct. Luong, however, was in custody for 652 days (from the time of his arrest on August 2, 2012, through his sentencing on May 16, 2014), which entitled him to 97 days of good conduct credit (15 percent of 654 is 97.8). Accordingly, Luong is entitled to a total of 749 days of custody credit.
XIII
Randall Is Entitled to One Additional Day of Custody Credit
Randall contends and the People agree that he is entitled to one additional day of presentence custody credit. The trial court granted Randall 1,036 days of custody credit. Randall was in custody for 902 days, which entitled him to 135 days of good conduct credit (15 percent of 902 is 135). Accordingly, Randall is entitled to a total of 1,037 days of custody credit.
XIV
Villanueva's and Do's Minute Orders and Abstracts of Judgment Must be Amended to
Reflect That the Enhancements Imposed on Counts Three and Four Were for 20 Years
Pursuant to Section 12022.53, Subdivisions (c) and (e)
Villanueva and Do contend, and the People agree, that their minute orders and abstracts of judgment must be corrected to reflect that the firearm enhancements imposed on counts three and four were for 20 years, not 20 years to life as reflected in the minute orders or 25 years to life as reflected in the abstracts of judgment. We agree.
Villanueva and Do were sentenced to aggregate terms of 27 years to life in state prison on counts three and four (seven years to life for attempted premeditated murder, plus 20 years for the related firearm offense) pursuant to section 12022.53, subdivisions (c) and (e), to be served concurrent with the sentence imposed on count one. Unlike the firearm enhancements found true with respect to counts one and two, the firearm enhancements found true as to counts three and four did not include a finding of great bodily injury as required under section 12022.53, subdivision (d), and thus subjected defendants to an additional 20 years in state prison. (§ 12022.53, subds. (c) & (e).)
Villanueva's and Do's minute orders incorrectly reflect that the trial court imposed 20-year-to-life terms for the firearm enhancements on counts three and four and must be corrected to reflect that the trial court imposed determinate 20-year terms. The abstracts of judgment incorrectly reflect that the trial court imposed 25-year-to-life terms for the firearm enhancements on counts three and four pursuant to section 12022.53, subdivisions (d) and (e), and likewise must be corrected to reflect that the trial court imposed determinate 20-year terms on the enhancements for counts three and four pursuant to section 12022.53, subdivisions (c) and (e).
XV
The Case Must Be Remanded to Allow the Trial Court an Opportunity to Exercise Its
Discretion Under Section 12022.53 to Strike the Firearm Enhancements
In supplemental briefing, defendants contend that we must remand this matter for the trial court to consider whether to strike the section 12022.53 firearm enhancements. We agree.
At the time of defendants' sentencing, the imposition of the section 12022.53 enhancements was mandatory, and the court had no discretion to strike them. (Former § 12022.53, subd. (h) ["Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section"].) On January 1, 2018, Senate Bill No. 620 went into effect. (Stats. 2017, ch. 682, §§ 1-2.) Senate Bill No. 620 amended sections 12022.5 and 12022.53, removing the bar on striking a firearm enhancement and granting the trial court discretion pursuant to section 1385 to strike or dismiss an enhancement. (§§ 12022.5, subd. (c); 12022.53, subd. (h).)
Defendants contend, and the People concede, that the amendments to sections 12022.5 and 12022.53, potentially providing for lesser punishment, are retroactive to cases not yet final. (See In re Estrada (1965) 63 Cal.2d 740; People v. Francis (1969) 71 Cal.2d 66, 75-76.) We agree and accept the People's concession. (People v. Woods (2018) 19 Cal.App.5th 1080, 1091.)
While the People acknowledge that the amendments to sections 12022.5 and 12022.53 apply retroactively, they assert that "not all [defendants] benefit from the new statutory changes." According to the People, remand is not appropriate as to Luong, Randall, and Johnson because "[t]here is no reason to believe that the sentencing court would exercise its new discretion to strike the firearm enhancements for" those defendants. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [no remand for resentencing on similar issue because the trial court already made its position clear].) We are not persuaded.
In support of their assertion, the People note that the sentence imposed on Villanueva and Do, 32 years to life, was substantially less than the 118 years to life recommended by the probation department, and contend that "the court did not offer any such sentencing breaks to the other three [defendants]." The People's observation about Villanueva and Do is correct, but their assertion that Luong, Randall, and Johnson were not given any sentencing breaks is not. The probation department recommended that Luong be sentenced to 118 years to life, Randall be sentenced to 177 years to life, and Johnson be sentenced to 166 years to life. The sentences imposed, however, were significantly less. Luong, Randall, and Johnson were sentenced to 64 years to life, 88 years to life, and 83 years to life, respectively. While the trial court's decision to run two of the attempted murder sentences consecutive as to Luong, Randall, and Johnson (instead of concurrent as it did for Do and Villanueva) is potentially suggestive, the record does not clearly indicate that the court would not, in any event, have exercised its discretion to strike one or more of the section 12022.53 enhancements had it been possible to do so at the time of the original sentencing. We will thus remand this matter for the trial court to have an opportunity to exercise its sentencing discretion on the firearm enhancements imposed on all defendants under section 12022.53.
We express no opinion as to how the trial court should exercise its newly granted discretion on remand. We only conclude that, under the circumstances of this case, the trial court should be provided the opportunity to exercise its discretion in the first instance. (See People v. Brown (2007) 147 Cal.App.4th 1213, 1228 [noting that it is generally appropriate to remand for resentencing when a court proceeded through sentencing erroneously believing it lacked discretion to act in a certain way].)
XVI
The Case Must Be Remanded to Allow the Trial Court an Opportunity to Exercise Its
Discretion to Strike the Prior Serious Felony Enhancements
Defendants Johnson and Randall filed supplemental briefs seeking a remand for resentencing for the trial court to exercise its discretion under Senate Bill No. 1393 to strike their five-year prior serious felony enhancements in the interest of justice. The People agree that a remand is appropriate.
Johnson and Randall each received a five-year sentence enhancement pursuant to section 667, subdivision (a)(1) for having been previously convicted of a serious felony. At the time of sentencing, the trial court had no authority to strike a prior serious felony conviction in connection with the imposition of a section 667 enhancement. However, Senate Bill No. 1393, which became effective January 1, 2019, "delete[d] the restriction prohibiting a judge from striking a prior serious felony conviction in connection with imposition of the 5-year enhancement . . . ." (Legis. Counsel's Dig., Sen. Bill No. 1393 (2017-2018 Reg. Sess.).) Because the judgment is not yet final, the change in the law will apply to Johnson and Randall retroactively. (People v. Garcia (2018) 28 Cal.App.5th 961, 971-973.)
Prior to the enactment of Senate Bill No. 1393, subdivision (b) of section 1385 stated: "This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667."
We will remand the case for the limited purpose of giving the trial court the opportunity to consider striking the prior serious felony enhancements pursuant to section 667, subdivision (a) for Johnson and Randall.
XVII
Villanueva, Do, and Randall Must Bring a Section 1170.95
Petition in Superior Court
Senate Bill No. 1437, effective January 1, 2019, changed the law regarding a defendant's liability for felony murder. The bill accomplished this by amending sections 188 and 189 to provide that a participant in the perpetration or attempted perpetration of one of the enumerated felonies in section 189 is not liable for felony murder unless: "(1) [t]he person was the actual killer[;] [¶] (2) [t]he person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree[; or] [¶] (3) [t]he person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2." (§ 189, as amended by Stats. 2018, ch. 1015, §§ 2, 3.)
The bill also added section 1170.95 to the Penal Code, which establishes a procedure for defendants who have been already convicted and sentenced. Section 1170.95 authorizes them to file a petition with the court that sentenced them to have the conviction vacated and to be resentenced on any remaining counts. (§ 1170.95, subd. (a).) If the defendant makes a prima facie showing that he or she falls within the provisions of section 1170.95, the court issues an order to show cause and holds a hearing to determine whether to vacate the conviction and recall the sentence. (§ 1170.95, subds. (c), (d).) At the hearing the parties may offer new evidence. (§ 1170.95, subd. (d)(3).)
People v. Martinez (2019) 31 Cal.App.5th 719 held that a defendant may not circumvent the procedure set forth in the statute by seeking retroactive relief on direct appeal. Citing People v. Conley (2016) 63 Cal.4th 646, which concluded that the postconviction procedure created by Proposition 36 (the Three Strikes Reform Act of 2012) was the exclusive means for seeking relief, and People v. Dehoyos (2018) 4 Cal.5th 594, which concluded the same for the procedure created by Proposition 47 (the Safe Neighborhoods and Schools Act), Martinez concluded convicted persons must proceed via the resentencing process set forth in the statute, rather than avail themselves of the law's ameliorative benefits on direct appeal. (Martinez, at pp. 727-729.) We agree with Martinez, that the exclusive procedure for obtaining retroactive relief under Senate Bill No. 1437 is by petition in the trial court. We express no view on whether such relief should be granted.
DISPOSITION
Randall's conviction for possession of MDMA for sale is reversed, and his judgment is modified to provide 1,037 days of presentence custody credit. Luong's judgment is modified to provide 749 days of presentence custody credit. The trial court is directed to amend Randall's and Luong's abstracts of judgment to reflect 1,037 days and 749 days of presentence custody credit, respectively, and forward certified copies of the amended abstracts to the Department of Corrections and Rehabilitation. The judgments are affirmed in all other respects.
The case is remanded to the trial court to exercise its discretion whether to strike any of the firearm enhancements imposed under section 12022.53, and whether to strike the prior serious felony enhancements for Johnson and Randall and, if appropriate, to resentence defendants. Should the trial court decline to strike or dismiss the firearm enhancements found true as to Do and Villanueva on counts three and four, the trial court is directed to correct Do's and Villanueva's minute orders and abstracts of judgment to reflect that the firearm enhancements imposed on those counts were for determinate 20- year terms (not 20 years to life or 25 years to life) pursuant to section 12022.53, subdivisions (c) and (e) and forward certified copies of the corrected abstracts to the Department of Corrections and Rehabilitation.
/s/_________
BLEASE, Acting P. J. We concur: /s/_________
MAURO, J. /s/_________
DUARTE, J.