P. v. Nguyen

Filed 3/12/07 P. v. Nguyen CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed.

Michael Bacall, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant An Quoc Nguyen challenges his convictions for first degree murder, conspiracy to commit murder, and attempted murder. He contends his convictions are unsupported by sufficient evidence. He further contends the court erred by failing to give a special, pinpoint instruction on self-defense.

We reject his contentions. Substantial evidence showed defendant aided and abetted fellow gang members who shot at one rival gang member, and later shot another in the head. Substantial evidence also showed defendant conspired with his fellow gang members to hunt down the first rival gang member in a drive-by shooting, and set up an ambush for the other. The special pinpoint instruction was duplicative of form jury instructions and potentially confusing. We affirm.

FACTS

Defendant belonged to Asian Gang (AG), a criminal street gang. He was hanging out late one night with other AG gang members at a Westminster restaurant. Members of a rival gang, Asian Crip Boys (ACB), approached them. Defendant called out, You motherfucker, ACB, and Fuck ACB. A fight broke out. Defendant punched a rival gang member, chased him while carrying a Club vehicle anti-theft device, and threw the Club at him. The fight eventually ended; defendant left.

Later that night, sometime before dawn, defendant received a phone call from his friend, another AG gang member. His friend asked defendant to come to his house due to an emergency. His friends car window had been smashed. Defendant, his friend, and two other AG gang members went looking for the rival gang members they suspected had broken the window. Defendant went to back up the other gang members i.e., provide support and use their guns in case they got injured. They found the rival gang members driving around Westminster, and followed them.

The rival gang members car pulled over on Erin Street in Garden Grove. The driver, an ACB gang member known as Cali, began to get out of the car. As he did, defendants friend turned off his cars headlights and slowly pulled up alongside Calis car. Defendant argued with his friend and another AG gang member for the right to shoot at Cali. Defendant yelled in Vietnamese, Its them. Shoot them, Motherfucker, shoot them for me, or Kill them for me. He ducked down in the front passenger seat, letting the other gang member shoot at Cali through the front passenger window. The bullet missed Cali, but shattered Calis driver-side window and passed through the front passenger window. The occupants of the two cars engaged in a car chase and gun battle.

The next day, defendant went with his friend and other AG gang members to Huntington Beach. Rival gang members pointed a gun at them from a car. The AG gang members drove off to get handguns. Defendant wanted one of the guns, but was not allowed to carry one. Rather, he was just like a backup. Defendant and the other AG gang members went back to Huntington Beach and unsuccessfully searched for the rival gang members. They talked about shooting the rival gang members if they found them.

Defendant and the other AG gang members discussed setting up an ambush for the rival gang members at the Westminster restaurant. They drove to the restaurant, arranged their cars in strategic locations, hid their guns nearby, and waited.

When the rival gang members finally drove up to the restaurant, the AG gang members yelled, Its them, Theyre here, and ACB. Defendant got into a car with other AG gang members. They shot at the rival gang members, and then chased them. The two cars exchanged gunfire during the chase. Defendant asked for a gun so he could shoot at the rival gang members. A bullet shot by someone in defendants car hit one of the rival gang members in the head, killing 16-year-old The Duy-Nguyen Doan.

An Orange County grand jury returned an indictment charging defendant with one count of first degree murder (Pen. Code, 187, subd. (a)),[1] two counts of conspiracy to commit murder ( 182, subd. (a)(1)), and one count of attempted willful, deliberate, and premeditated murder ( 664, 187, subd. (a)). The indictment alleged defendant committed the crimes for the benefit of a criminal street gang. ( 186.22, subd. (b)(1).) It further alleged a principal discharged a firearm in the commission of the crimes. ( 12022.53, subds. (c), (d), (e)(1).)

A jury found defendant guilty on all counts. It also found the special allegations true. The court sentenced defendant to a total term of 95 years to life in prison.

DISCUSSION

Substantial Evidence Supports Defendants Conspiracy Conviction

Defendant contends insufficient evidence supported his conspiracy convictions. The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.) We view the evidence in favor of the verdict, and presume the existence of every fact the jury might reasonably deduce from it. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa).)

A conspiracy is an agreement between two or more people to commit a public offense. [Citation.] A conviction for such requires proof of: (1) an agreement; (2) the specific intent to conspire; (3) the specific intent to commit the offense; and (4) an overt act towards achievement of that goal. [Citation.] These elements are sufficiently met by circumstantial evidence . . . . (People v. Herrera (1999) 70 Cal.App.4th 1456, 1464 (Herrera).) Evidence is sufficient to prove a conspiracy to commit a crime if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135 (Rodrigues).)

Substantial evidence supported defendants conviction for conspiring to murder Cali. The jury reasonably could have concluded defendant and his fellow AG gang members reached a mutual understanding to commit a crime as they drove around Westminster in the predawn hours looking for Cali, and then trailing his car until it stopped. (Rodrigues, supra, 8 Cal.4th at p. 1135.) The jury also could reasonably have concluded the conspiracy was to murder Cali from the overwhelming evidence of a drive-by shooting. While defendants friend turned off his cars headlights and slowly pulled alongside Cali, defendant argued over who would shoot Cali, shouted words to the effect of shoot them for me, and ducked down to give another gang member a clean shot at Cali. This coordinated effort to shoot Cali sufficiently established the elements of conspiracy to commit murder. (See ibid.;see also Herrera, supra, 70 Cal.App.4th at p. 1464.)

Substantial evidence also supported defendants conviction for conspiring to murder The Doan. The jury reasonably could have concluded defendant and the other AG gang members had a mutual understanding to commit a crime as they drove from Huntington Beach to a friends house to pick up guns, drove back to Huntington Beach to look for the rival gang members, then drove to Westminster. (Rodrigues, supra, 8 Cal.4th at p. 1135.) Indeed, the evidence suggested defendant and the other AG gang members reached two express agreements to shoot the rival gang members, first by tracking them down in Huntington Beach, then by ambushing them in Westminster.

In addition, the evidence suggested an implied agreement to shoot the rival gang members. The AG gang members strategically positioned their cars at the Westminster restaurant, hid their guns nearby, and waited for the rival gang members. When their quarry arrived, the AG gang members shot at them, and continued to do so during the ensuing car chase. This evidence further established the elements of conspiracy to commit murder. (See Rodrigues, supra, 8 Cal.4th at p. 1135;see also Herrera, supra, 70 Cal.App.4th at p. 1464.)

Substantial Evidence Supports Defendants Murder Conviction

Defendant also contends insufficient evidence showed he aided and abetted the murder of The Doan. Defendant would be liable as an aider and abettor if he, while 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. (People v. Prettyman (1996) 14 Cal.4th 248, 259.) [A]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense. (People v. Campbell (1994) 25 Cal.App.4th 402, 409 (Campbell).)

Substantial evidence showed defendant aided and abetted the murder of The Doan. The evidence showed defendant went with other AG gang members to pick up guns, and then drove around with them while discussing shooting and ambushing the rival gang members. Thus, the jury reasonably could have concluded defendant knew the other AG gang members would try to kill the rival gang members. It also reasonably could have concluded defendant intentionally encouraged the murder by admittedly backing up the other AG gang members as they painstakingly hunted and ambushed the rival gang members. (Campbell, supra, 25 Cal.App.4th at p. 409 [aiding and abetting shown by presence, companionship, and conduct].)

Substantial Evidence Supports Defendants Attempted Murder Conviction

Defendant contends insufficient evidence showed he is liable for the attempted willful, deliberate, and premeditated murder of Cali. He contends he is liable only for the lesser included offense of attempted voluntary manslaughter because the evidence showed the AG gang members shot at Cali in unreasonable self-defense or due to provocation.

The element of malice sets murder apart from manslaughter. ( 187, subd. (a) [defining murder as an unlawful killing with malice], 192 [defining manslaughter as an unlawful killing without malice].) Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. ( 188.) Malice is negated if the defendant actually but unreasonably believes the killing is necessary to defend against an imminent danger of death or great bodily injury i.e., in imperfect self-defense. (In re Christian S. (1994) 7 Cal.4th 768, 773, 783 (Christian S.).) It is also negated if the defendant acts upon a sudden quarrel or in the heat of passion with adequate provocation. (See id. at p. 779; see also 192, subd. (a).)

Substantial evidence of malice supports defendants attempted murder conviction. Defendants cry of Its them. Shoot them, Motherfucker, shoot them for me, or Kill them for me showed a willful, deliberate, and premeditated unlawful intention to kill Cali, i.e., express malice. ( 188.)

Moreover, the jury rejected defendants only evidence of self-defense and provocation his own testimony and statements to the police. The verdicts show the jury generally disbelieved defendant. Specifically, it implicitly discredited defendants contrived claim that, in the dark of the night, defendant saw Cali pointing a gun through his rolled-up window while Cali was simultaneously parallel-parking his car. Rather, the jury credited the testimony of Calis passenger, who testified the AG gang members shot at an unarmed Cali without warning or provocation while he was trying to get out of his car. We will not second-guess the jurys credibility call on appeal. (Ochoa, supra, 6 Cal.4th at p. 1206.)

The Court Properly Refused to Issue Defendants Pinpoint Instruction

Defendant contends the court erred by failing give the jury his special pinpoint instruction concerning self-defense and conspiracy. Defendant asked the court to instruct the jury, An agreement by two or more persons to lawfully defend themselves from an attack by third parties is not a conspiracy. As he notes, a defendant is entitled to correct, nonargumentative jury instructions that pinpoint the theory of defense. (People v. Earp (1999) 20 Cal.4th 826, 886.) But the court may properly decline to give jury instructions that are duplicative of other jury instructions or potentially confusing. (People v. Gurule (2002) 28 Cal.4th 557, 659 (Gurule).)

Defendants proposed instruction was duplicative of the courts form instructions defining conspiracy to commit murder and justifiable homicide. The court gave CALJIC 8.69, correctly defining conspiracy to commit murder for the jury as an agreement entered into between two or more persons with the specific intent to commit the crime of murder . . . . It clarified, [t]he crime of conspiracy to commit murder requires proof that the conspirators harbored express malice aforethought, namely, the specific intent to kill unlawfully another human being. It also gave CALJIC 5.12, correctly instructing the jury that a killing or attempted killing is justifiable if the defendant actually and reasonably believes (1) the victim will inflict death or great bodily injury on the defendant or his companions, and (2) the use of deadly force or means is necessary to avoid that death or injury. Defendants pinpoint instruction adds nothing substantial to these instructions. The court had no obligation to give it. (Gurule, supra, 28 Cal.4th at p. 659.)

In addition, defendants proposed instruction was confusing. As just noted, justifiable homicide in self-defense requires the defendant actually and reasonably believe the killing was necessary to avoid the imminent infliction of death or great bodily injury on him or his companions. (See Christian S., supra, 7 Cal.4th at p. 773 & fn. 1.) But the proposed instruction refers only to an agreement . . . to lawfully defend themselves from an attack by third parties . . . . Thus, the proposed instruction might have led jurors to acquit defendant if they found the AG gang members agreed to kill to ward off any attack, regardless of the attacks imminence or severity. This possible confusion further justified the courts refusal to give defendants proposed instruction. (See Gurule, supra, 28 Cal.4th at p. 659.)

DISPOSITION

The judgment is affirmed.

IKOLA, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

FYBEL, J.

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[1] All further statutory references are to the Penal Code.