P. v. Van

Filed 7/23/07 P. v. Van CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

APPEAL from the Superior Court of Riverside County. Patrick F. Magers, Judge. Conditionally reversed and remanded with directions.

Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant Toan Quoc Van.

Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Khoi Van Phan.

Arthur B. Martin, under appointment by the Court of Appeal, for Defendant and Appellant Nelson Wynn.

Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant Giang Huynh.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Janelle Boustany and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.

This case involves a home invasion robbery that was thwarted before the defendants entered the home. Having been caught in the act, the defendants attempted to escape from the long arm of the law. Unable to escape, the defendants, Toan Quoc Van (Van), Khoi Van Phan (Phan), Nelson Wynn (Wynn), and Giang Huynh (Huynh) were charged, tried and convicted. They now appeal.

I. INTRODUCTION

Following a jury trial, Van, Huynh, Wynn, and Phan were convicted of the following crimes: (1) conspiracy to commit residential robbery in concert (Pen. Code,^[1]  182, subd. (a)(1), 213, subd. (a)(1)(A) (count 1)); (2) attempted residential robbery in concert ( 211, 213, subd. (a)(1)(A), 664 (count 2)); (3) attempted residential burglary ( 459, 664 (count 3)); and (4) attempted premeditated murder of a police officer ( 187, subd. (a), 664, subd. (e) (count 4)). Additionally, Van was convicted of possession of a firearm by a felon ( 12021, subd. (a)(1) (count 6)), and resisting an officer by force or violence ( 69 (count 8)). Huynh was also convicted of possession of a firearm by a felon ( 12021, subd. (a) (count 7)).

The jury found true the allegations that (1) defendants committed the crimes in counts 1-4 for the benefit of a criminal street gang ( 186.22, subd. (b)(1)); (2) a principal was armed in counts 1-3 ( 12022, subd. (a)(1)); (3) with respect to attempted murder in count 4, a principal used a firearm and inflicted great bodily injury and the crime was committed for the benefit of a criminal street gang ( 12022.53, subds. (d) & (e)(1)); and (4) Van used a firearm ( 12022.5, subd. (a)) when he resisted an officer by force or violence (count 8).

II. ISSUES ON APPEAL

On appeal, Wynn raises the following issues: (1) whether his conviction for attempted premeditated murder must be reversed because the evidence is insufficient to establish that the crime was (a) in furtherance of an ongoing conspiracy, or (b) the natural and probable consequence of a home invasion robbery; (2) whether there is sufficient evidence to show that Vans attempted murder of Corporal Lang was committed for or as part of a gang such that the gang enhancement attached to the attempted premeditated murder should be reversed; (3) whether all the gang enhancements should be reversed because the evidence fails to show that the crimes were committed for or as part of a gang; (4) whether there is sufficient evidence to find that Van acted with premeditated intent to kill when he shot at Corporal Lang; (5) whether the trial court erred in not instructing the jury on voluntary manslaughter based on the heat of passion because it was possible that Van was fired upon before firing; (6) whether the life sentence on count 2 should be stricken because attempted residential robbery is not a crime to which section 186.22, subdivision (b)(4)(B) applies; and (7) whether the 10-year gang enhancement attached to count 4 should be stricken, not stayed.

Huynh raises the following issues: (1) whether a unanimity instruction was necessary regarding which firearm Huynh possessed; (2) whether there was sufficient evidence to support the finding that counts 1-4 were committed for, or as part of, a gang; (3) Whether the trial court erred in imposing the penalty for attempted premeditated murder without instructing the jury to determine whether Huynh personally premeditated such crime; (4) whether the 45-year-to-life sentence on counts 1 and 2 should be stricken because conspiracy to commit residential robbery and attempted residential robbery are not crimes to which section 186.22, subdivision (b)(4)(B) applies; (5) whether the trial court erred by imposing consecutive sentences on counts 1 and 4; and (6) whether the 10-year gang enhancement attached to count 4 should be stricken, not stayed.

Phan raises the following issues: (1) whether there is sufficient evidence to support his conviction for the attempted premeditated murder of Corporal Lang; (2) Whether the trial court erred in instructing the jury with a nonmodified version of CALJIC No. 3.00; (3) whether the trial court erred in failing to instruct the jury that Phans custodial status prior to the firing of the shots resulted in his withdrawing from the conspiracy and thus constituted a defense; and (4) whether the trial court erred by imposing consecutive sentences on counts 1 and 4.

Van raises the following issues: (1) whether the trial court erred in refusing to disclose complaints (for dishonesty or use of excessive or unreasonable deadly force) made against the named officers; and (2) whether the 10-year gang enhancement attached to count 4 should be stricken, not stayed.

We note that Wynn joined in Vans (1) and (2) issues, Phans (2) issue, and Huynhs (2), (3), (4), and (6) issues. Van joined in Wynns (2), (3), (4), and (5) issues, and Huynhs (2), (4), and (5) issues. Huynh and Phan joined in any argument by any of their codefendants that may inure to their benefit. Huynh specifically joined in Phans (1), (2) and (4) issues, and Wynns (1), (2), (3), (4), (5), and (6) issues. And Phan specifically joined in Vans (1) and (2) issues, Wynns (1), (2), (3), (4), (6), and (7) issues, and Huynhs (2) and (3) issues. For our purposes, we will treat any issue raised by one defendant, which benefits one or all of the others, as being raised by the both or all of the defendants.

III. FACTS

On October 4, 2001, Kim Tran and her sister, Tchi Do, went to the Phuong Lien shop at Bolsa and Magnolia in Westminster to have her nails done, and then ran some errands in the same strip mall of the shop. Ms. Tran was driving a silver 2000 Mercedes and wearing a two and one-half karat diamond ring and a pair of one-karat diamond earrings. She was a regular costumer of the nail shop, going there every three to four weeks on Wednesdays. A few doors down from the nail shop is Page Tek, a store where Wynn had sold her a cell phone on August 23, 2000. On the cell phone contract handled by Wynn, Ms. Tran stated her business address. Ms. Tran and her husband lived in Murrieta and owned the Furniture Superstore, a retail store in Murrieta.

Ms. Tran testified they kept about $10,000 in cash and about $50,000 in jewelry in a small safe in the house. She said that it is very common for Vietnamese immigrant families to keep money at home because, coming from a war country, they did not feel safe keeping money at the bank all the time.

Around 2:00 a.m. on October 5, 2001, Lauri Smith, who lived on Dartanian Place off St. Raphael near the Tran family, was checking on her baby when she looked out an upstairs window and saw a red Honda Civic and a white Toyota truck driving without lights on the cul-de-sac. The vehicles circled at the end of the cul-de-sac and parked across the street from Ms. Smiths house. Ms. Smith saw five men step out of the vehicles. She noticed the Hondas driver, Phan, had longer, more full hair. The men were looking through the back of the truck, with one man covering the light over the center portion of the passenger section. The five men were wearing dark clothing, shirts or sweatshirts. The men then walked away in single file and left the cul-de-sac heading toward St. Raphael.

Ms. Smith alerted her husband, who called 911. After a while, Ms. Smith saw Phan walk back. He opened the passengers side door to the Honda, leaned inside, and then walked away in the same direction as before. At the corner of Dartanian and St. Raphael, Phan looked to his left, turned, and quickly walked back to the Honda. He got inside the vehicle and began to drive away.

Sergeant Jonathan Flavin and Detective John Nelson of the Murrieta Police Department, who had left their patrol cars on St. Raphael, walked onto Dartanian and saw the red Honda moving slowly. The officers approached the Honda and spoke to the driver, Phan. When asked why he was in the area, Phan stated that he was [l]ooking for a friend, gas station, something about that. Phan was detained and placed in the back of a patrol car.

At this point, another officer, Corporal Steve Lang, arrived on the scene. As Officer Nelson was placing Phan in a patrol car and Corporal Lang was speaking to Ms. Smith at her front door, Officer Flavin saw a man who was wearing a bulky dark jacket walking into the cul-de-sac from Bayonne. The man was defendants cohort, Nick Tran. When asked about his presence in the area, Nick Tran replied that he had been fishing in the area; however, he had no fishing pole or tackle. He was detained and placed in another patrol car.

Officers Flavin, Nelson, and Jeff Ullrich walked on St. Raphael to Bayonne to check the area. Corporal Lang checked the Toyota truck and found a black nylon bag with screwdrivers, gloves and a knitted cap on the front seat.

At the Bayonne cul-de-sac, Officer Ullrich saw an open gate at the house where Ms. Tran resided with her family. Officer Ullrich saw a head pop up behind the gate and then disappear. The officer heard the sound of trashcans being knocked over and someone running. Officer Ullrich then ran into Ms. Trans back yard and saw the dark shadow of a person running.

Officers Flavin and Nelson followed Officer Ullrich. Officer Flavin saw a black glove on the ground and heard Officer Ullrich yelling at someone to stop. At the Tran back yard, Officer Nelson first saw a suspect climb over a wall, heading toward Dartanian. The officer then saw a second suspect (short and stocky, wearing a flannel long-sleeved shirt, with tall hair) going over a fence that led toward Clinton Keith Road.

From Dartanian, Corporal Lang heard screams of Police. He then heard Officer Nelsons radioed warning, Steve, theyre coming toward you. The corporal saw a man hoist himself over a fence near him and run. Corporal Lang repeatedly stated, Police officer, get on the ground, but the runner, later identified as Van, kept going.

A chase ensued. At one point, Van slowed his pace. About five to six feet away, Van turned around and fired at Corporal Lang. There was an exchange of gunfire. Corporal Lang dove to the ground but Van kept firing at him. Corporal Lang was hit in his upper right leg and was unable to move. Van, who had also been hit by the gunfire and who was also on the ground, started to get up. Corporal Lang shot Van two more times.

In Ms. Trans back yard, Officer Flavin could not see his partners. When he reached the sliding glass rear door on the house, the officer heard the sound of gunshots coming from Dartanian. He heard two or three shots, followed by about eight shots. He then heard Corporal Langs radioed broadcast that he had been shot in the leg. Officer Flavin jumped over a fence that was closer to these shots, then heard more shots, jumped over another fence, and saw Officers Nelson and Ullrich running on Clinton Keith.

Officer Nelson caught up with the second suspect, who was limping, near the corner of Neville and Clinton Keith. When they were about 80-100 yards away from each other, the suspect turned to the right and fired his weapon four times towards Officer Nelson. The officer fired back. The suspect fired one or more rounds, turned away, fell down, then ran away, disappearing on Neville. When Officer Flavin caught up with them, Officer Nelson said that he had chased someone who had shot at him on Clinton Keith, and he (Officer Nelson) fired back.

Officers Flavin, Nelson and Ullrich set up a perimeter on Neville to prevent the suspects escape. Officers from other law enforcement agencies arrived in the area to assist. There were about 50-60 law enforcement officers. Officer Ullrich picked up a glove that was near Ms. Trans gate and gave it to a Riverside County canine officer.

Approximately 4:00 a.m., Wynn was seen holding his hands up, walking on the sidewalk and coming down the hill on Neville. Police found a Toyota key on his person, but it did not fit the truck parked on Dartanian. After seeing Wynn at a field show-up, Officer Nelson said that he was not the suspect who had shot at him. Canine units continued searching the area. Eventually, Huynh was located hiding by some bushes on Neville and Clinton Keith. Huynh was given the choice to come out of the bushes or the dog would be sent in for him. Choosing not to come out, Huynh was bitten on the leg and pulled from the bushes by the police dog. Officer Nelson identified Huynh as the suspect who had shot at him. Huynh said, Why you shoot me? I not shoot you. Huynh misidentified himself to the officers. His true name was ascertained through his fingerprints.

Detective James Ganley found a screwdriver and Phans wallet in the Honda that was driven by Phan. In the Toyota truck, on the front seat, the detective found a blue and white GAP store bag that contained two pairs of black knit gloves, a pair of garden-style brown gloves, three yellow and black screwdrivers, three live .380-caliber rounds, an Adidas knit cap, a black and white bandanna, and a white and blue bandanna. On the drivers side floorboard, the detective found a black cotton knit glove and a brown and white sock. Also inside the truck were invoices relating to alarms already installed in residences, ADT residential alarm installation paperwork, some service manuals on how to operate the alarms, and a black, extra, extra-large, GAP jacket. Detective Ganley found out that Nick Tran was the registered owner of the Toyota truck and that he had worked for ADT, an alarm company for residential and commercial alarms.

Detective Ganley found a black knit glove on the sidewalk between Dartanian and Bayonne. Around the gazebo in Ms. Trans back yard, there was an unloaded .357-caliber Smith and Wesson revolver.^[2] No firearm was found in the area of Clinton Keith or Neville. Gun residue testing yielded positive results on samples taken from Van and Huynh. The results were negative on the samples taken from Phan, Wynn, and Nick Tran. A more exhaustive search of Nick Trans truck was done on October 8, 2001, by Corporal Victor Carrillo. In a small gap under the steering column, the corporal felt a soft cloth, with a small, unloaded revolver that could hold up to six rounds.

Westminster Police Sergeant Mark Nye testified as an expert on Asian gangs. Sergeant Nye was responsible for naming the Natoma Boys gang (Natoma), a criminal street gang whose 15-20 members congregated on Natoma Street in Little Saigon. Natoma members had cigarette burns in the shape of a cross or upside-down cross on their arm to show their allegiance to the group. Younger brothers and cousins of Natoma members were not allowed to join the gang. Instead, they formed the Nip Family gang (Nip). The younger group, whose members scarred themselves with an identifying mark standing for the nine original members of the gang, owed allegiance to Natoma. At the time of the instant crimes, the two gangs were in allegiance. Sergeant Nye personally knew Phan as a member of Nip. Sergeant Nye identified Van with fellow gang members flashing gang signs.

Sergeant Nye had investigated crimes in which Nip was involved, namely, attempted murder, assault with a deadly weapon, robbery, burglary, auto theft, drug sales, weapon violations, possession of firearms, extortion, and victim and witness intimidation. Based on his personal involvement in the investigations and his conversations with other investigators as well as with members of Nip, Sergeant Nye opined that the gangs primary purpose was to make monetary gain for individual members and for the gang itself, and to achieve this goal through the commission of robberies, burglaries, other similar crimes, and drug sales.

According to Sergeant Nye, the Boys in the Hood (Boys), with over 10 members, was an elite and smaller faction of the larger Nip gang.^[3] In October 2001, members of Boys were involved in crimes with members of Nip and Natoma. There are photographs showing members of all three gangs together. In a photograph shown to the jury, Sergeant Nye identified Van (aka Dreamer), a member of Boys. Also shown in the photograph is a roster or listing of the members of Boys and their monikers. The first and second members listed are Chino and Dreamer (Van). The photo also depicts the initials of all three gangs, signifying the common alliance and affiliation between them. In Sergeant Nyes opinion, Huynh was either a member of Nip or hard-core trusted associate with that group, strongly affiliated with that group.

Regarding Wynn and Nick Tran, Sergeant Nye opined that they were members or close associates of Nip or Boys, which are one and the same gang. The sergeant explained that in order to be present when the instant crimes were being committed by hardcore gang members, Wynn and Nick Tran had to be strong, trusted gang associates. Wynn had to be there for backup, not turn tail and run, to stand up for any and all members, there to risk his own life if necessary, and should he be apprehended to not give any information to the police to obviously identify other parties involved.

Sergeant Nye opined that, assuming defendants and Nick Tran had conspired to enter a Vietnamese familys home in Murrieta to rob it, and that all five men (some armed) were in the homes back yard, the crime was done in association with Nip and Boys to benefit these gangs. Sergeant Nye testified the proceeds of the robbery would go back to other members of their gang, and that the robbery and the shooting would enhance their reputation within the subculture of the gang community. Sergeant Nye further explained that it was a [b]adge of honor to shoot at a police officer, and opined that one was not required to be a gang member in order to commit a crime in association with the gang.

IV. ISSUES REGARDING THE ATTEMPTED PREMEDITATED MURDER

Wynn and Phan challenge the sufficiency of the evidence supporting their conviction for attempted premeditated murder. Wynn contends the attempted premeditated murder was neither a natural and probable consequence of a home invasion robbery, nor a crime committed in furtherance of an ongoing conspiracy to commit home invasion robbery. Additionally, Wynn contends the evidence is not sufficient to establish that Van acted with premeditated intent to kill when he shot at Corporal Lang.

Phan challenges the sufficiency of the evidence to support his conviction for the attempted premeditated murder of Corporal Lang on the vicarious liability theories of aiding and abetting and conspiracy. Specifically, Phan claims the evidence fails to show there was a conspiracy to commit murder or attempted murder, and, even if that were proved, it would not suffice to establish his guilt as a coconspirator. Phan further contends the evidence only shows that he drove down the cul-de-sac, parked, and walked towards St. Raphael with others, then returned and was in the patrol car when Lang was shot. Thus, he argues that the evidence fails to establish his guilt as an aider and abettor.

A. Standard of Review.

When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence--i.e., evidence that is credible and of solid value--from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 848-849.) We must presume in support of the judgment the existence of every fact the trier of fact could have reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) The same standard of review applies when a conviction rests primarily on circumstantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124.)

If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.] (People v. Thomas (1992) 2 Cal.4th 489, 514.) Reversal is warranted only where it clearly appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Redmond (1969) 71 Cal.2d 745, 755.)

B. Evidence That Van Acted with Deliberation and Premeditation When He Fired on Corporal Lang.

Wynn argues there was insufficient evidence that Van acted with premeditation and deliberation to support a conviction of attempted murder. He claims that the evidence could show either of the following: (1) Van, as he fled, coldly and calculatedly made the decision to kill if he could not escape; or (2) Van, suddenly trapped, made a rash spur of the moment decision to kill rather than be caught.^[4] Wynn relies on the oft-cited test found in People v. Anderson (1968) 70 Cal.2d 15, 26-27 . . . [(Anderson)] which sets forth three categories of evidence for a reviewing court to

consider with respect to premeditation and deliberation: (1) prior planning activity; (2) motive; and (3) the manner of killing. These factors are not a sine qua non to finding first degree premeditated murder, nor are they exclusive. [Citation.] (People v. Herrera (1999) 70 Cal.App.4th 1456, 1462-1463, fn. omitted.) We disagree with defendant.

An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse. [Citation.] However, the requisite reflection need not span a specific or extended period of time. (People v. Stitely (2005) 35 Cal.4th 514, 543 (Stitely).) [P]remeditation and deliberation can occur in a very short period of time. [Citation.] The test is not time, but reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . . [Citation.] (People v. Bloyd (1987) 43 Cal.3d 333, 348.)

Regarding the first factor in Anderson, supra, 70 Cal.2d 15, planning, Wynn claims the evidence fails to show any planning. He notes that as Van was being chased by Corporal Lang, Van made exaggerated movements with his hand so that Corporal Lang would think that Van had a gun. Wynn argues that these exaggerated movements tend to prove Van was not planning on shooting at Lang[,] but merely drive him off the chase. Wynn further points out that Vans haphazard, one-hand shooting toward Lang is not a particular and exacting method tending to show that Van must have had a preconceived design to take Corporal Langs life. We disagree. The evidence of planning was clear. Although Van was being chased by Corporal Lang, Van continued to turn around to see Corporal Langs location. Van slowed down until Corporal Lang was five to six feet behind. Van then turned around and fired directly at Corporal Lang. Even after Corporal Lang dove to the ground, Van continued to fire at him. Van had time to consider what he wanted to do, and he decided to fire at Corporal Lang. At that point, Van had clearly decided that he wanted kill Corporal Lang. Vans plan to kill Corporal Lang was evidenced by the fact that Van continued to fire even after Corporal Lang was on the ground.

As to the second factor in Anderson, supra, 70 Cal.2d 15, motivation, the evidence showed that Van was caught in the act of attempting to commit a home invasion robbery. The police were all around, and the chance of escape was not looking good. Van clearly realized that he had to get rid of Corporal Lang if he wanted to escape. Furthermore, as a gang member, Van was motivated to commit this crime in order to promote the reputation of his gang and instill fear and intimidation of his gang into other people.

Finally, as to the third factor in Anderson, supra, 70 Cal.2d 15, the manner of killing, there was very strong evidence of deliberation and premeditation. The evidence described actions on Vans part that were calculated. Van slowed down his pace to allow Corporal Lang to get closer, and then Van turned around and fired. Even when Corporal Lang dropped to the ground, Van continued to fire. Rather than showing that Van acted on impulse or without the premeditated intent, as Wynn claims, the evidence showed that Van acted in a calculated manner that demonstrated a plan to kill the officer.

Viewing the evidence in a light most favorable to the prosecution, as we must, we conclude there was more than enough evidence of premeditation and deliberation.

C. Was the Attempted Premeditated Murder a Natural and Probable Consequence of a Home Invasion Robbery, or a Crime Committed in Furtherance of an Ongoing Conspiracy to Commit Home Invasion Robbery?

Phan argues that the evidence fails to show there was a conspiracy to commit murder or attempted murder. Even if it does, Phan claims that it is insufficient to establish his guilt as a coconspirator or as an aider and abettor. Likewise, Wynn contends the attempted premeditated murder was neither a natural and probable consequence of a home invasion robbery, nor a crime committed in furtherance of an ongoing conspiracy to commit home invasion robbery.

Aiding and abetting and conspiracy are alternative theories of criminal liability. Under the natural and probable consequences doctrine, a criminal defendant who aids and abets another in the commission of a crime may be liable not only for that target crime, but also for any other crime the perpetrator commits that is a natural and probable consequence of the target crime. (People v. Prettyman (1996) 14 Cal.4th 248, 254.) Thus, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault. [Citation.] (People v. McCoy (2001) 25 Cal.4th 1111, 1117.)

[W]hether a particular criminal act was a natural and probable consequence of another criminal act aided and abetted by a defendant requires application of an objective . . . test. [Citations.] . . . [T]he issue is a factual question to be resolved by the jury in light of all of the circumstances surrounding the incident. [Citations.] Consequently, the issue does not turn on the defendants subjective state of mind, but depends upon whether, under all of the circumstances presented, a reasonable person in the defendants position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant. [Citations.] (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.)

People v. Montes (1999) 74 Cal.App.4th 1050, is instructive. In that case, Montes was with members of his gang in a restaurant parking lot when Garcia and Flores, who are members of a rival gang, arrived. (Id. at p. 1053.) Montes doused Garcias car with soda, yelling Fuck VPL, the acronym for Garcias gang. Garcia pulled a switchblade, and Montes displayed a three-foot chain that was kind of thick. Flores threw a pipe toward Montess group. Cuevas, an associate of Montes, then shot Garcia. (Ibid.) Montes was convicted of the attempted murder based upon an aiding and abetting theory and the application of the natural and probable consequences doctrine. On appeal, he claimed that he could not be liable for the murder because he did not know his fellow gang member had a gun. (Id. at p. 1054.) The appellate court disagreed. It explained: When rival gangs clash today, verbal taunting can quickly give way to physical violence and gunfire. No one immersed in the gang culture is unaware of these realities, and we see no reason the courts should turn a blind eye to them. Given the great potential for escalating violence during gang confrontations, it is immaterial whether Montes specifically knew Cuevas had a gun. (Id. at p. 1056.)

In this case, the jury was instructed in accordance with the above principles that defendants could be found guilty of attempted murder of a police officer if the jury found that such crime was a natural and probable consequence of the commission of attempted robbery or burglary.^[5] Also, the jury was instructed on conspiracy principles pertinent to the charged crime of conspiracy, i.e., conspiracy to commit residential robbery in concert, and that defendant could be found guilty of attempted murder of a police officer if such crime was a natural and probable consequence of the objective of the conspiracy.^[6]

Based on the record before this court, we find sufficient evidence to support a finding that defendants Wynn, Phan, and Huynh were fellow gang members and associates of Van, as well as coconspirators and aiders and abettors of the target crimes which natural and probable consequences included the attempted murder of a police officer. Phan was a member of Nip; Van was a member of Boys; Huynh was a hard-core trusted associate of Nip; and Wynn was a member or associate of Nip or Boys, which are one and the same gang. Wynn, who had sold Ms. Tran her cell phone, traveled in Nick Trans Toyota pickup with Nick Tran, Van and Huynh. Phan drove separately. All of the men arrived at Dartanian around 2:00 a.m. They attempted to avoid detection by turning off their lights and wearing dark clothing; when getting things out of a vehicle, they covered the inside light.

Tools found inside the truck are common tools used to burglarize a home. There were manuals and invoices related to alarm systems, screwdrivers, .380-caliber rounds, gloves, and a knitted cap. There were four firearms brought to the scene. The men walked in single file and two of them were armed − Van carried a .45-caliber weapon and Huynh fired a weapon at Officer Nelson. A .357-caliber Smith and Wesson revolver was found in the Tran back yard, and a firearm was found inside Nick Trans car. The men went to the home of Ms. Tran and entered the back yard, opening a gate. At that point, the police arrived.

Based on the above evidence, it was reasonable for the jury to infer that defendants and their cohort, Nick Tran, who had worked at an alarm company, were acting together in a conspiracy to commit a home invasion robbery at the Tran home. In fact, the jury returned its verdict and found each defendant guilty of conspiracy to commit residential robbery. The evidence also supports a finding that a reasonable and probable consequence of the crime of conspiracy to commit residential robbery by criminal gang members and associates, where at least two are armed, is that one of the conspirators would not hesitate to kill a police officer in order to evade arrest. Also, such action by gang members gains honor and glory for the gang. As coconspirators, Phan, Wynn and Huynh were as culpable for the attempted murder as was Van.

Notwithstanding the above, Phan contends he had been detained and was physically unable to take any further action in the conspiracy. Moreover, he claims that the prosecution was unable to articulate any specific actions of [his] other than driving to the area that would exhibit knowledge of the conspiracy and, particularly, an agreement to participate in it. We disagree. The fact that Phan was caught in his car trying to drive away, and then placed inside a patrol car while his codefendants were attempting to evade detection, does not equate to a withdrawal from the conspiracy, nor does it eliminate Phans liability. The natural and probable consequences doctrine does not require that the conspirator be present when the natural and probable consequence crime is committed. It is not necessary that a party to a conspiracy shall be present and personally participate with his co-conspirators in all or in any of the overt acts. (People v. Morante (1999) 20 Cal.4th 403, 417, quoting People v. Benenato (1946) 77 Cal.App.2d 350, 356, disapproved on another ground in In re Wright (1967) 65 Cal.2d 650, 654-656.

Defendants claim that the conspiracy was over and done with at the time of the shooting by Van, thus erasing the vicarious liability of Wynn, Phan or Huynh, is misplaced. (People v. Kauffman (1907) 152 Cal. 331 (Kauffman).) In Kauffman, the defendant and six coconspirators planned to break into a safe at a cemetery. They armed themselves with guns, a bottle of nitroglycerin, and burglary tools. Arriving at the cemetery, they found an armed guard by the safe. They decided to leave. On their way home, part of the group encountered a police officer, and a gunfight occurred, which led to the death of the officer. The defendant who had been carrying the nitroglycerin was unarmed and did not participate in the shooting. Nonetheless, he was charged with and convicted of the officers murder. (Id. at pp. 332-334.) On appeal, the defendant challenged the evidence supporting his conviction.

Affirming the defendants conviction, the Kauffman court said: The general rule is well settled that where several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine. . . . Each is responsible for everything done by his confederates, which follows incidentally in the execution ofthe common design as one of its probable and natural consequences, even though it was not intended as a part of the original design or common plan. Nevertheless the act must be the ordinary and probable effect of the wrongful act specifically agreed on, so that the connection between them may be reasonably apparent, and not a fresh and independent product of the mind of one of the confederates outside of, or foreign to, the common design. (Kauffman, supra, 152 Cal. at p. 334.)

The Kauffman court then concluded that it was reasonable for the jury to find that the plan in which the defendant had conspired included not only breaking into the safe at the cemetery, but also protecting all members of the group from arrest or detection while going to and returning from the scene of the proposed burglary, such that the police officers death was a natural and probable consequence of their unlawful enterprise. (Kauffman, supra, 152 Cal. at pp. 335-337.) Wynns attempt to distinguish Kauffman is misplaced. Wynn notes that in Kauffman, the conspirators left in two groups with a plan and intent to avoid detection; however, in this case, the police arrived, broke up the conspiracy, and defendants scattered. Such distinction has no merit. The fact remains that defendants are gang members or associates of a gang who are familiar with committing crimes and avoiding detection. They are streetwise. The fact that they scattered upon the arrival of the police could very easily be explained as an agreement to divide and conquer. If there were not enough officers at the scene, the chances are great that one or more of the defendants would have escaped.

Although Kauffman, supra, 152 Cal. 331, involved the liability of conspirators for substantive crimes in the course of a conspiracy and not the liability of aiders and abettors, later decisions have applied the natural and probable consequences doctrine to aiders and abettors (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5) as well as to conspirators (People v. Hardy (1992) 2 Cal.4th 86, 189; see CALJIC No. 6.11). CALJIC No. 6.11 addresses both types of vicarious liability. The instructions first two sentences address a conspirators vicarious liability for a conspiracys objects or target offenses. The remaining portion of the instruction, beginning with the sentence A member of a conspiracy is not only guilty, . . .  is directed to a conspirators vicarious liability for nontarget offenses that are committed by a coconspirator and that are the natural and probable consequences of the conspiracy.

As we noted ante, a conspirator is vicariously liable for both (1) offenses committed by a coconspirator which are the objects of the conspiracy, or target offenses, and (2) other offenses committed by a coconspirator, which, though not the conspiracys objects, are its natural and probable consequences. Here, the facts of defendants crime, conspiracy to commit residential robbery, allowed the jury to reasonably find that they were aiding and abetting the attempted robbery and burglary, and that the conspiracy had not terminated when Van shot and tried to kill Corporal Lang.^[7] Thus, Wynn, Phan and Huynh, as coconspirators, were vicariously liable for the attempted murder of the officer, a crime that was a natural and probable consequence of the target crime.

V. ISSUES REGARDING THE GANG ENHANCEMENTS

Both Wynn and Huynh challenge the sufficiency of the evidence to support the true findings that the crimes in counts 1-4 were committed for the benefit of a criminal street gang. ( 186.22, subd. (b).) They also allege the evidence fails to support the count 4-related gun enhancement under section 12022.53, subdivision (e)(1), which is predicated on the true finding on the gang enhancement.

To find true a gang enhancement allegation under section 186.22, subdivision (b), the trier of fact need not find defendant actively participated in a gang, just that his felony was committed 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)); see In re Ramon T. (1997) 57 Cal.App.4th 201, 207.) Acting as a sentence enhancement to other, separate felonies, section 186.22, subdivision (b) is designed as a powerful remedy to the crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods. ( 186.21.)

Both Wynn and Huynh argue the evidence fails to establish that defendants committed the conspiracy to commit residential robbery, the attempted burglary, and the attempted robbery for the benefit of, in association with, or at the direction of a criminal street gang, or with the specific intent to benefit that gang. More specifically, Wynn argues that the gang enhancement allegation should not attach to his attempted murder conviction ( 187, subdivision (a), 664, subdivision (e)), because insufficient evidence was presented to show that Vans attempted murder of Corporal Lang was for the benefit of, at the direction of, or in association with a criminal street gang. After reciting the facts of the shooting, Wynn claims the only evidence presented to prove the shooting was gang related was a single assertion by a gang expert in response to a hypothetical question. The expert was asked whether a gang members attempted murder of a police officer during an attempted home invasion robbery would benefit the gang. The expert stated that it would, because in addition to committing a violent crime, the member is also committing violence on an officer who is there to protect society. It would enhance the gang because to shoot at a police officer is viewed as a badge of honor.

As respondent points out, our states highest court has ruled that gang expert testimony suffices to prove the gang allegation, holding that from the gang expert testimony, the jury can reasonably infer that a crime is committed for the benefit of, at the direction of, or in association with a criminal gang. (People v. Gardeley (1996) 14 Cal.4th 605, 617.) Here, Sergeant Nye detailed the gang membership and/or gang affiliation of the four defendants. Sergeant Nye personally knew Phan as a member of Nip and identified Phan in a photograph with other gang members flashing gang signs. Another photograph showed the membership roster of the Boys gang, which specifically listed Vans gang moniker, Dreamer. In front of the roster, Van posed for the camera together with another member, Chino, who was also listed as a member of Boys.

A videotape made at a casino two months prior to the instant crimes was shown to the jury. It showed Phan arriving with another Nip member, Kevin Lee, and Huynh hugging them. It also showed Wynn, Huynh and Phan together in the casino. Sergeant Nye explained the common allegiance and interconnections between Nip and Boys. The gangs worked together to commit crimes in October 2001, they were one and the same gang, their primary goal was to commit burglaries and robberies for monetary gain for the individual members and the gang, and gang culture considered it a badge of honor to shoot at a police officer. Moreover, all four defendants stipulated that Nip and Boys are criminal street gangs whose members have individually or collectively engaged in a pattern of criminal activity as defined in section 186.22, subdivisions (b) and (e).

Interpretation of evidence is, of course, a question for the jury, and expert testimony and eyewitness evidence presented at trial led the jury to conclude that Van had committed the attempted murder in association with gang members and with the intent to assist gang members in a criminal activity. With reference to the evidence supporting defendants ties to gangs, and the known criminal activities of the gangs, we find sufficient evidence for a jury to find reasonably true the gang enhancement allegations under section 186.22, subdivision (b).^[8]

Because we have found sufficient evidence to support the section 186.22 allegation, we reject defendants claim that the evidence fails to support the count 4-related gun enhancement under section 12022.53, subdivision (e)(1), which is predicated on the true finding on the gang enhancement.

VI. INSTRUCTIONAL ERROR

A. Attempted Voluntary Manslaughter Based on Heat of Passion.

Wynn contends the trial court erred in refusing the request of defense counsel to instruct on attempted voluntary manslaughter. Claiming it was possible that Van was fired upon before firing, Wynn argues that the jury could have found attempted voluntary manslaughter based on heat of passion.

The record shows defense counsel for Phan requested instructions on attempted voluntary manslaughter based on heat of passion, claiming Vans reason was disturbed by passion when he was confronted by an officer with his gun drawn as he fled the attempted commission of a felony. Viewing the evidence differently as to Huynh firing upon Officer Nelson, Wynns counsel claimed that Huynh was acting under the heat of passion as demonstrated by the evidence showing Huynh was fleeing when he was fired upon by Officer Nelson without Huynh having fired first. Huynhs trial counsel joined in the argument of Wynns counsel, noting the evidence suggested that Officer Nelson fired first.

In response, the prosecutor argued that voluntary manslaughter requires not only heat of passion but legally adequate provocation, which was missing. Specifically, the prosecutor stated that a police officers attempt to detain a felon is not adequate provocation for shooting the officer.

After listening to the arguments of counsel, the trial court determined that heat of passion as a theory for instructing the jury on attempted voluntary manslaughter had no application to the facts of this case. We agree.

It is settled that in criminal cases . . . the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] . . . 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.) An instruction on a lesser included offense is required to be given only when the evidence to support it is substantial enough to merit consideration by the jury. (People v. Barton (1995) 12 Cal.4th 186, 195, fn. 4.)

Voluntary manslaughter is a lesser included offense of murder when the requisite mental element of malice is negated by a sudden quarrel or heat of passion, or by an unreasonable but good faith belief in the necessity of self-defense. Only these circumstances negate malice when a defendant intends to kill. [Citation.] . . . To establish voluntary manslaughter under a heat of passion theory, both provocation and heat of passion must be found. [Citation.] First, the provocation which incites the killer to act in the heat of passion case must be caused by the victim or reasonably believed by the accused to have been engaged in by the decedent. [Citations.] Second, . . . the provocation must be such as to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citation.] (People v. Gutierrez (2003)112 Cal.App.4th 704, 708-709.) In addition, the provocation must be from the victim. (People v. Lujan (2001) 92 Cal.App.4th 1389, 1411-1412.)

Noting that one of Vans gunshot wounds was in the back of his right thigh, Wynn contends this evidence supports the defense theory that Van acted in the heat of passion in response to Corporal Lang first firing at him (Van) while he was fleeing. When relying on heat of passion as a partial defense to the crime of attempted murder, both provocation and heat of passion must be demonstrated. (People v. Williams (1988) 199 Cal.App.3d 469, 475.) We agree with the Attorney General that evidence of provocation or heat of passion is not present in this case, and there is nothing in the record substantial enough to merit consideration by the jury of the lesser included offense of attempted voluntary manslaughter under a theory of sudden quarrel or heat of passion . . . . (Ibid.) There was no evidence of provocation sufficient to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. While Corporal Lang was in an active pursuit of Van, Van began shooting at the corporal. Whether Corporal Lang fired first or not, the fact remains that Van knew that he was being pursued by law enforcement. An ordinary person of average disposition would have stopped running, put his or her hands in the air, surrendered, and not fired at the officer. Accordingly, we conclude the trial court did not err in rejecting the request for an attempted voluntary manslaughter instruction.

In any event, the trial courts refusal to instruct the jury on the lesser included offense of attempted voluntary manslaughter based on heat of passion was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions. [Citations.] (People v. Koontz (2002) 27 Cal.4th 1041, 1085-1086; People v. Lewis (2001) 25 Cal.4th 610, 646.) The jury found that the attempted murder of Corporal Lang was willful, deliberate, and premeditated. This finding is inconsistent with Van having acted under a heat of passion. Moreover, it is not reasonably possible that the failure to instruct on attempted voluntary manslaughter based on heat of passion affected the jurys verdicts. In view of the evidence that the police officers were in pursuit of defendants as felons, no reasonable juror could have concluded that Vans firing a gun at Corporal Lang was anything other than willful, deliberate and premeditated. Pursuit by a police officer is simply not sufficient provocation to warrant a heat of passion defense.

B. CALJIC No. 3.00 and Phans Custodial Status.

Phan contends the standard language in CALJIC No. 3.00 [Principals-defined] should have been modified to instruct the jury that an aider and abettor may be found guilty of a lesser offense than that committed by the perpetrator. He claims that the failure to so instruct deprived the jury of considering whether Phan possessed a lesser mental state if he was not aware that Van was in possession of a firearm. In effect, Phan argues that because he was detained prior to Van shooting at Corporal Lang, the alleged conspiracy terminated, as a matter of law, as to Phan, and therefore Phan should not have been liable for the attempted murder. Likewise, Phan questions whether the trial court erred in failing to instruct the jury that his custodial status prior to the firing of the shots resulted in his withdrawing from the conspiracy and thus constituted a defense.

Generally, a defendants mere failure to continue previously active participation in a conspiracy is not enough to constitute withdrawal. An affirmative and bona fide rejection or repudiation of the conspiracy must be communicated to the coconspirators. [Citation.] Once the defendants participation in the conspiracy is shown, it will be presumed to continue unless he is able to prove, as a matter of defense, that he effectively withdrew from the conspiracy. [Citation.] [] Although a defendants arrest and incarceration may terminate his participation in an alleged conspiracy, his arrest does not terminate, or constitute a withdrawal from, the conspiracy as a matter of law. [Citations.] (People v. Cooks (1983) 141 Cal.App.3d 224, 316.) As Phan points out, withdrawal from or termination of a conspiracy is a question of fact for the jury. (People v. Sconce (1991) 228 Cal.App.3d 693, 701.)

In this case, Phans detention was not voluntary. As such, it did not qualify as a voluntary choice that would constitute abandonment or withdrawal from the conspiracy. (People v. Crosby (1962) 58 Cal.2d 713, 730-731 [to effectively withdraw from the conspiracy, there must be an affirmative and bona fide rejection or repudiation of the conspiracy, communicated to the co-conspirators.]; CALJIC No. 6.20 [withdrawal from conspiracy].) Accordingly, we find no instructional error or deprivation of any defense regarding Phans custodial status.

C. Unanimity Instruction.

Huynh contends the trial court erred in failing to instruct the jury that before Huynh could be found guilty of being a felon in possession of a firearm, the jury had to agree unanimously on which firearm he possessed. (People v. Crawford (1982) 131 Cal.App.3d 591, 598 [failure to give CALJIC No. 17.01 in prosecution for possession of firearm by an ex-felon held error where the evidence showed a seizure of four handguns, two from defendants bedroom and two from the bedroom of another occupant of the house, so that the relevant indicia of possession were different].) According to Huynh, this case raise[d] a unanimity issue -- whether the firearm [Huynh] was alleged to have possessed was the one left behind at the scene of the attempted home invasion robbery or the one for which there was no evidence other than one officers testimony that [Huynh] fired several shots from it. We disagree. That is not the way this case was tried, and this fact explains why neither counsel requested the instruction, nor did it occur to the trial court that it needed to be given.

As respondent points out, the record shows that the prosecutor, in his initial argument to the jury, discussed the charge of felon in possession of a firearm against Huynh, referring solely to the firearm that Huynh possessed when he fired at Officer Nelson: And just to reiterate, at least four guns among them. We know that. We know Toan Vans gun that is lying next to his hand with the slide back after he shoots it out with Corporal Lang. You got the one gun found in the backyard, presumably dropped by Nelson Wynn. Then you have one gun in Nick Trans truck, probably what hes going back to get when he is nabbed by the cops when he comes back to Dartanian to his truck. And you have the gun that Giang Huynh had that he fired at Officer Nelson. Later, the prosecutor stated: And finally with this particular count, because nobody was struck, Officer Nelson was not struck, the allegation is that . . . Huynh personally discharged a firearm, not causing great bodily injury but simply discharged the gun. [] . . . [] Van had a gun in his waistband, had it in his hand on the ground next to him after he shoots Corporal Lang. [] . . . [] . . . Huynh is the same exact element. A person had under his control a firearm, knew he had it and he was previously convicted of a felony. Again, he fired a gun. Thats an issue in this case. Im not so blind to know that. This is something you will talk about. He had a gun when he was in the yards, he had a gun when he crossed the street, he had a gun when he fired at Officer Nelson.

Likewise, Huynhs trial counsel, in discussing the charge of felon in possession of a firearm in his argument to the jury, only referred to the gun about which Officer Nelson testified, namely, the one Huynh fired at the officer. Huynhs defense focused on discrediting Officer Nelsons testimony in connection with the charge of attempted murder of a police officer (count 5, of which the jury acquitted Huynh) based on the inability of the officers to find Huynhs gun or other physical evidence about the gun, and defendants statement to Officer Nelson at the time of his arrest, Why you shoot me? I not shoot you.

While the police did not find the gun used by Huynh, the jury had Officer Nelsons testimony describing Huynh firing at the officer, and the fact that gun residue testing on all five defendants yielded positive results only for Huynh and Van. Although other weapons were mentioned, the jury was never told to rely on any other weapon for the felon-in-possession charge against Huynh. Instead, both the prosecutor and defense counsel made the necessary election as to which singular set of facts constituted the crime and no unanimity instruction was required. (See People v. Crawford (1982) 131 Cal.App.3d 591, 595.)

D. Instruction Whether Huynh Personally Premeditated Murder.

Huynh contends he was denied due process of law because he was deprived of a proper jury instruction on whether he had the necessary mental state to be guilty of premeditated, attempted murder, as an aider and abettor, under the natural and probable consequences doctrine. He argues that where, as here, the liability of an aider and abettor for premeditated, attempted murder is based on the natural and probable consequences doctrine, the aider and abettor must personally act with willfulness, deliberation, and premeditation to warrant a sentence of life in prison pursuant to section 664, subdivision (a).

In People v. Lee (2003) 31 Cal.4th 613, 627 (Lee), the state Supreme Court held 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. Earlier, this court reached the same conclusion in People v. Laster (1997) 52 Cal.App.4th 1450 (Laster). We interpreted section 664, subdivision (a), to mean that an aider and abettor can be subject to life imprisonment for willful, deliberate, and premeditated murder even if he or she did not personally deliberate or premeditate. (Id. at p. 1473.)

We also noted in Laster that, where an aider and abettor intentionally facilitates a target offense, and the actual offense committed consists of the same act as the target offense, for example, where the aider and abettor intends to facilitate an assault with a deadly weapon, but the perpetrator commits a murder, the aider and abettor is no less culpable than the perpetrator. (Laster, supra, 52 Cal.App.4th at p. 1464.) We emphasized that whether the charged offense is reasonably foreseeable or a natural and probable consequence of the target offense remains a jury question. (Id. at pp. 1465-1466.) We said, [a]ssuming the jury found that defendants knowingly and intentionally aided and abetted the discharge of a firearm from a vehicle, it st