P. v. Du

Filed 8/7/06 P. v. Du CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael Pastor, Judge. Affirmed in part and modified in part.

Jeralyn Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Paul M. Roadarmel, Jr., Deputy Attorney General, for Plaintiff and Respondent.

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Appellant Tuong Vinh Du was convicted, following a jury trial, of one count of second degree murder in violation of Penal Code section 187 and three counts of attempted willful, deliberate and premeditated murder in violation of sections 187 and 665. The jury found not true the allegations that appellant personally used a firearm and personally used a weapon in the commission of the crimes.

This was the second trial of this matter. Appellant and his brother Lac Vinh Du were previously tried for these murders and attempted murders, and were convicted. These convictions were ultimately reversed on the ground that the trial court improperly dismissed a hold-out juror. Following reversal, Lac pled guilty to involuntary manslaughter. Appellant now appeals from the judgment of conviction, contending that there is insufficient evidence to support two of the three convictions for attempted murder and further contending that the trial court erred in instructing the jury on attempted murder. Appellant also contends that the trial court erred in imposing a $1,800 restitution fine. The restitution fine of $1,800 is ordered stricken. We affirm the judgment of conviction in all other respects.

Facts

At about 11:00 p.m. on December 5, 1994, Henry Chang, Mrs. Chang, David Yang, Adam Zachs, Tony Wei, Murphy Yang, Kwong Chan and "Ken" (collectively "the Chang group") arrived at the Rose Room, a nightclub in Rosemead. The Chang group was given a private room. Female entertainers from the club joined the party in the private room.

At about midnight, a man entered the room and yelled in English that one of Chang's friends had bumped into him in the restroom and had not apologized. The man shouted obscenities and attempted to provoke a fight. Another man came into the room and dragged the first man out. Chang stated that the man who had bumped the intruder was Ken. Zachs stated that the man was Tony Wei.

When the Rose Room closed sometime between 1:30 and 2:00 a.m., the Chang party decided to leave. Chang's group eventually left through the club's only door, which opened onto a ramp into the parking lot. As they left the club, they saw a group of ten to twenty people near the end of the ramp. Members of this group yelled that they were Wa Ching, the name of a Chinese gang. Some of the men shouted in English: "We are some kind of gangster[s]! We are Wa Ching!"

Chang was near the back of the group when he left the club. He saw the men at the bottom of the ramp yelling and talking to Tony Wei. One of the men said something like "You want to play this big?" Chang believed that the men were trying to pick a fight with Wei. After the men yelled "Wa Ching," Chang saw one of the men kick Tony. Then Chang heard gunshots. Chang was shot by a .38 caliber bullet. He hid behind a car, where he saw muzzle flashes from two different guns in two different locations before losing consciousness. Chang remembered seeing appellant's brother Lac at the Rose Room that night, possibly in the crowd in the parking lot.

Zachs was hit in the leg by a .9mm bullet. Before he was shot, he saw a man wearing a red shirt or jacket pointing a handgun in the direction of the Chang group.

Yang, the last member of the Chang group to leave the club, was hit in the left arm. No bullet was recovered from him.

Chan was shot and killed. A .38 caliber bullet hit Chan in the eye, inflicting a fatal wound. Three .9 mm bullets also hit Chan, two of them inflicting fatal wounds.

Between 1:30 and 2:00 a.m. on December 6, Los Angeles County Deputy Sheriff Troy Jackson was on patrol near the Rose Room when he heard gunshots. He saw a Toyota Cressida with its lights off make a wrong turn out of the Rose Room's one-way entrance. He followed the car, and eventually stopped it. The car had six occupants, including appellant and his brother Lac. Lac was wearing a red shirt. All six were taken to the sheriff's station to be interviewed. None of the men tested positive for gunshot residue.

A .38 caliber revolver was found in the middle of an intersection less than a block from the Rose Room. There were five empty shell casings in the revolver. There were no fingerprints on the gun. The two .38 rounds recovered from Chan and Chang and a .38 round recovered from the parking lot were all fired by that revolver.

Seven nine millimeter shell casings were recovered from the Rose Room's parking lot. Those casings, the .9 mm rounds recovered from Chan and Zachs and a .9 mm bullet recovered from the parking lot were all fired from the same weapon.

The next day, appellant told sheriff's deputies that he had gone to the Rose Room with Lac and some friends and that he had been carrying a gun. There were about 20 or 30 people milling about, yelling and arguing. He recognized some of the people and decided to help them if they were in trouble. He stated that he fired the gun into the crowd because he became scared by all the confusion. Appellant said that after the gun was empty, he returned to the car. Lac threw the gun out the window before the group was stopped by the police.

Sam Choo, a former Los Angeles County Deputy Sheriff assigned to the Asian Team, testified as an expert witness on Asian criminal street gangs. He explained that Wa Ching gang members resorted to "anything," including murder, to establish control over rival gangs. Based upon his review of appellant's statements to police, and his knowledge of the workings of the Wa Ching gang, Choo concluded that appellant and his companions were in fact Wa Ching gang members.

In his defense, appellant presented the testimony of Detective Timothy Miley of the Los Angeles County Sheriffs Department that Chang identified Lac in a photographic lineup and indicated that Lac was involved in the incident and that Zachs was unable to identify anyone from the same photographic lineup. Appellant also presented evidence that a security videotape obtained from the Rose Room did not reveal the presence of appellant or Lac.

Long Tran also testified on appellant's behalf. In 1995, a juvenile court found that Tran had committed manslaughter. Tran was convicted of felony residential burglary in 1997. Tran testified that at the time of the shootings in this case, he was a junior member of the Wa Ching gang, along with appellant. On the night of shooting, Tran was at a party with appellant, Lac and other fellow gang members. At some point, a group of senior gang members were told to go with Lac on a mission. Tran was not given any specifics, but he knew "something was wrong." Tran then drove where Lac directed him. Appellant, Danny Bang, and Quan Ngo were also in the car.

Lac eventually told Tran to pull into the parking lot of a supermarket. They then walked across the street to the Rose Room parking lot, near the back door. There were about 50 people milling about and arguing. Tran saw some senior members of Wa Ching, who were arguing with a group of men Tran did not recognize. Within about a minute of his arrival, Tran heard gunshots, turned around and saw Lac holding a gun with his arm outstretched.

The group then ran back to the car, joined by James Le. Ngo drove them away. Lac told someone to throw the gun out the window. Shortly thereafter, a police car pulled up behind them and ordered them to stop. The group was detained and questioned about the shootings. Tran did not tell police that Lac had been armed and had fired his weapon in the Rose Room's parking lot. Tran was obeying the code of his gang "to keep your mouth shut."

On cross-examination, Tran acknowledged that he had never come forward to the police or the prosecutor about Lac's involvement in the shootings. The first time he had ever made such information public was during this trial. Tran agreed that Wa Ching members "back up" other members against the gang's rivals. Tran also acknowledged that he went to the Rose Room to back up fellow gang members, and knew the gun hidden in the bush was for "protection." He knew that someone "could be killed."

Lac also testified on behalf of appellant. Two months prior to this trial, Lac pleaded guilty to voluntary manslaughter. Lac was a Wa Ching gang member at the time of the shootings, and had been for two years. He described the Wa Ching gang as a hierarchical structure. Wa Ching members follow orders. They back up fellow gang members "[t]o whatever extent . . . necessary" in disputes with other gangs. They have killed, and been killed by, rival gang members.

On the night of the shootings, Lac attended a party in Alhambra with appellant and other Wa Ching gang members. A senior gang member received a telephone call, then told Lac that some Wa Ching members were at the Rose Room, engaged in negotiations with either the Black Dragons or the Cool Boys. The man told Lac that the situation could be dangerous. He gave Lac a revolver and told him to go the Rose Room.

Lac took the gun and left the party. Appellant, Long Tran, Jimmy Tran, Danny Bang, and Quan Ngo went with him. Jimmy Tran drove under Lac's direction. The group headed to the Rose Room, where they found a large group of people arguing. Lac and the others walked toward a bunch of Wa Ching gang members in the crowd. Suddenly, a fight broke out. Lac pulled out the revolver and emptied it into the crowd. Lac ran back to the car and got in, along with the others. Quan drove them away. A Los Angeles Sheriffs car followed them. Lac threw the gun out the window. Lac told the others: "I can't be taking this heat, you know. Somebody else got to take this heat from me because I'm the oldest one.'" Lac told appellant that he would have to take the blame to spare Lac a prison sentence.

On cross-examination. Lac admitted that the first time he had revealed that he was actually the shooter was "[r]ight now, under oath." Lac understood that because his plea had been accepted, his case could not be reopened to permit his prosecution as the actual shooter.

In rebuttal, gang expert Choo testified that Wa Ching gang members lived by a code of secrecy and non-cooperation with law enforcement. The gang strictly follows a chain of command. At the time of the shootings, Wa Ching was engaged in a dispute over control of the Rose Room with a rival Asian gang, the Black Dragons. It was "common" for confrontations between Wa Ching and rival gang members to result in shootings, with Wa Ching members killing their rivals "as a matter of course in their gang activities."

Also in rebuttal, Detective Miley testified that he interviewed Lac on December 6, 1994. Lac told Detective Miley that on the evening of the shootings, he and a group of Wa Ching gangsters had been at a friend's house, waiting for a telephone call because they "knew there was gonna be [a] problem later on," and that they would have to "back up somebody." When the call finally came, Lac and the others were told to go to the Rose Room. Lac believed they were going to the Rose Room to back up fellow gang members. They took one gun with them, which Lac initially handled, but then gave to appellant. When they arrived at the Rose Room, Lac, appellant, and the others went to the ramp area of the parking lot to "settle a difference" with rival gang members. During the ensuing altercation, appellant fired four or five gunshots before he and the others ran back to the car. As they sped away, Lac passed the gun to someone, who threw it out the window.

Discussion

1. Sufficiency of the evidence - intent

Appellant fired a .38 caliber revolver. Zachs was shot by a round from a .9 mm handgun and Yang was hit by a round of an undetermined caliber. Appellant contends that this evidence shows that someone other than he shot those two men and that there is no evidence that that person intended to kill the men. He further contends that since there is insufficient evidence to support these convictions, the convictions constitute a denial of his state and federal constitutional rights to due process. We see more than sufficient evidence to support appellant's convictions, and consequently find no violation of appellant's rights to due process.

In reviewing a challenge to the sufficiency of evidence, "the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432.)

The standard of review is the same when the prosecution relies on circumstantial evidence to prove guilt. (People v. Rodrigues (1999) 20 Cal.4th 1, 11.) "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." (People v. Thomas (1992) 2 Cal.4th 489, 514, internal quotations omitted, citing People v. Bean (1988) 46 Cal.3d 919, 932-933.)

Appellant contends, correctly, that a conviction for attempted murder requires proof that the perpetrator had the specific intent to unlawfully kill another human being. (People v. Swain (1996) 12 Cal.4th 593, 604-605.) He further contends that if the perpetrator does not have the necessary specific intent for attempted murder, a person who aided and abetted the perpetrator's acts could not be found guilty of attempted murder. We see ample evidence that the .9 mm shooter in this case intended to kill Zachs and Yang.[1]

Zachs testified that an argument ensued inside the Chang party's private room at the Rose Room because the intruder believed that Tony Wei had bumped into him. The Chang group was the last group to leave the Rose Room when it closed. Members of the group testified that the club was empty of patrons when they walked through it on their way to the parking lot. Yet when the Chang party emerged from the Rose Room, they found a large group of people standing around in the parking lot. Yang stated that the men in the group were "yelling and talking" to Wei. Some of the men said that they were from the Wa Ching gang. One of the men in the front kicked Wei. After that Yang heard gunshots. Four men, all members of the Chang party, were hit by gunshots.

The location of the gunshot wounds in three of the men support an inference that the shooters intended to kill those men. A. 38 caliber bullet hit Chan in the eye, a fatal shot. Three .9 mm bullets also hit Chan. Two of these shots, one to the back of the head and one to the upper left side of the back, were fatal. A .38 caliber bullet hit Chang in the upper left side of his chest and a bullet of undetermined caliber hit Yang in left arm.

Zachs, the fourth man, was hit in the leg with a .9mm. Intent to kill cannot be inferred from the mere placement of this bullet. Such an intent can be inferred from Zachs's membership in the Chang party, however. The gunmen hit half the members of the Chang party, but no one else in the parking lot. Apart from Zachs, the other members of the Chang party who sustained gunshot wounds were hit in locations which demonstrated an intent to kill. The gunmen together fired at least twelve rounds, more than enough to kill every member of the party if the gunmen's aim had been better. It is thus reasonable to infer that the shooters were attempting to kill any or all of the members of the Chang party, including Zachs.

Appellant contends that there is no evidence that the .9 mm shooter had the specific intent to kill Zachs and Yang, "to the exclusion of every other person in the world." He contends that such a showing is required for attempted murder by People v. Bland (2002) 28 Cal.4th 313. Appellant is mistaken. The Court in Bland held only that the doctrine of transferred intent does not apply to the offense of attempted murder unless the defendant has created a killing zone around the intended victim. Bland says nothing about the situation here, where it is reasonable to infer that there were multiple intended victims, and thus no need to rely on the doctrine of transferred intent.

Further, there is ample evidence to support a conviction under the killing zone theory of Bland.[2] Firing at least twelve rounds from two semi-automatic weapons at a target in a group of eight people is an act which, if successful, would by its nature kill everyone around the target. Both .38 caliber and .9 mm rounds can, and did, kill a man at the range involved in these shootings. The fact that the shooters were apparently not expert marksman does not change this conclusion.

To the extent that appellant contends that the holding of People v. Smith (2005) 37 Cal.4th 733 shows that the evidence in this case is not sufficient to support the attempted murder convictions in this case, appellant is mistaken. Appellant is correct that the Court in Smith noted that the defendant had a motive to harm his former girlfriend, who had had a child by another man, and that motive may be an excellent indicator of intent. He is also correct that the Court also noted that the defendant fired at very close range at the car containing his former girlfriend and her child, and missed them only by inches. This analysis by the Court casts no doubt on the verdicts in this case, however. As we discuss, above, both shooters had a motive to harm members of the Chang group. They fired at close range and did not miss.

2. Sufficiency of the evidence – aiding and abetting

Appellant contends that there is no evidence to connect him to the .9 mm shooter, and thus no evidence to show that he intended to assist the other shooter or was aware of the other shooter's plan to kill Zachs and Yang, or to assault them.[3] Appellant further contends that since there is insufficient evidence to support these convictions, the convictions constitute a denial of his state and federal constitutional rights to due process. We do not agree.

There is ample evidence to connect appellant to the .9 mm shooter. Zachs testified that the man who pointed a gun at him wore a red shirt. Lac was wearing a red shirt when he was apprehended. At trial, Lac testified that he fired a gun at the Rose Room. [4] It is reasonable to infer from these facts that Lac was the second shooter. Even in the absence of such evidence, it would be reasonable to infer that the second shooter was a Wa Ching gang member. The only gang name heard that night was Wa Ching. Although Lac and Tran testified that they expected to confront rival gang members when they arrived at the Rose Room, neither man testified that he saw any such rivals there.

For the jury to convict appellant of aiding and abetting the .9 mm shooter under the natural and probable consequences doctrine, the jury was required to find only that appellant knew of the shooter's plan to commit an assault with a firearm, and by act or advice aided, promoted, encouraged or instigated the commission of that assault.[5] (People v. Prettyman (1996) 14 Cal.4th 248, 262.) For the jury to convict appellant under a straight aiding and abetting theory, the jury was required to find that appellant shared the shooter's specific intent to kill and gave aid or encouragement with the intent or purpose of facilitating the .9 mm shooter's offense. (People v. Lee (2003) 31 Cal.4th 613, 625.) We see ample evidence that appellant intended to aid and abet the shootings by the .9 mm shooter under either theory.

Appellant traveled to the Rose Room with his brother Lac and other Wa Ching gang members. At the time of the shooting, the Wa Ching were engaged in a dispute for control of the Rose Room with a rival gang. Appellant and the others went to the parking lot to help some friends who were in trouble. According to Lac and Tran, the men they went to help were also Wa Ching gang members who were involved in a dispute with another gang. Lac testified that Wa Ching gang members back each other up to the extent necessary. A gang expert testified that Wa Ching members routinely kill rival gang members in disputes. Thus, viewing the evidence in the light most favorable to the evidence, appellant went to the Rose Room for the express purpose of helping fellow gang members in a dispute which was likely to involve assault with a firearm and killing.

Appellant brought a handgun with him to the parking lot. When fighting broke out, he began firing that gun. The .9mm shooter also began firing. Both shooters hit members of the Chang party, and no one else. One of appellant's shots hit Chan, who was also a target of the .9 mm shooter, and was a concurrent cause of Chan's death. Thus, appellant did assist the .9mm shooter in the commission of a killing. It is certainly reasonable to infer that appellant intended to assist that shooter's other assaults or attempts at killing as well.

To the extent that appellant contends that gang membership cannot provide evidence of an intent to assist, he is mistaken. Evidence of gang membership alone may not suffice, but more evidence than that was present here. Appellant was not convicted merely because he was a gang member or associated with gang members. It is appellant's actual actions which make it reasonable to infer that appellant intended to assist the second shooter, not his gang member status. Appellant admitted that he went to the Rose Room to help fellow gang members and he did so carrying a weapon. He fired that weapon, wounding two people, one fatally.

3. Sufficiency of the evidence – actual perpetrator

Appellant contends that there was no evidence that he was the actual shooter of Zachs and Yang. We need not reach this contention since we have found ample evidence to support appellant's convictions under an aiding and abetting theory. We note that appellant could be directly liable for the attempted murders of Zachs and Yang even though he did not fire the shots which hit them. Appellant fired five rounds from the .38, hitting two people. Given that appellant and the .9 mm shooter both fired at and hit Chan, it would be reasonable to infer that appellant and the .9mm shooter were both firing at the same targets, and that appellant also fired at but missed the two other men hit by bullets, Zachs and Yang. Such missed shots by appellant could form the basis of an attempted murder conviction. (See People v. Smith, supra, 37 Cal.4th 733 [bullets fired by defendant convicted of attempted murder missed intended victims].)

4. CALJIC No. 8.66

Appellant contends that the standard version of CALJIC No. 8.66 when applied to multiple charges of attempted murder improperly allows the jury to convict a defendant of the attempted murder of one person if the jury finds that the defendant had the intent to kill a different person. Appellant did not object in the trial court, and so we review this claim pursuant to section 1259, to determine whether the instruction violated appellant's substantial rights. We see no such violation.

CALJIC No. 8.66 provides in pertinent part that the elements of attempted murder are "1. A direct but ineffectual act was done by one person towards killing another human being; and [¶] 2. The person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being." We see no reasonable likelihood that the jury would understand this element to mean that the defendant could be guilty of attempted murder if he committed an act towards killing one person, but intended to kill a different person. The only reasonable understanding of the instruction is that the defendant committed an act towards killing another person, and had the specific intent to kill that person.

Assuming for the sake of argument that CALJIC No. 8.66 does not make it clear that defendant must intend to kill the named victim, other instructions given by the court in this case remedied any shortcoming. The trial court instructed the jury pursuant to CALJIC No. 8.66.1 that "the intent to kill a primary target does not transfer to a survivor." That instruction also explained the possibility of "concurrent intent" to kill others in the "kill zone." The trial court also instructed the jury pursuant to CALJIC No. 3.31 that in the crimes of attempted murder, there must exist a joint operation of act or conduct and specific intent in the mind of the perpetrator.

5. Restitution fine

Appellant contends that the restitution fine must be stricken. We agree.

At the time of the shooting, the law provided for restitution fines up to $10,000 but also provided that the amount of any restitution fine be reduced by the amount of any direct restitution ordered to the victims. Here, more than $10,000 in direct restitution was ordered. Thus, no restitution fine could be imposed.

Current law does not provide such an offset. Respondent does not dispute that this law cannot normally be applied retroactively. Respondent contends that the direct restitution ordered in this case was directed at the condition of the victim in 2005 and so current law applies. Respondent is factually incorrect. The direct restitution awards were for lost wages. Those wages were lost in 1994, not now.

Disposition

The restitution fine of $1,800 is ordered stricken. The judgment is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

MOSK, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Real Estate Attorney.

[1] Appellant contends that the evidence showed that a third weapon was used to shoot Yang and that there is no evidence to connect him to that weapon or its shooter. We do not agree. The evidence showed only that a bullet passed through Yang's arm and that it was not possible to identify its caliber. Nine millimeter casings and one nine millimeter round were recovered at the scene, as was one .38 caliber round. A .38 revolver was recovered nearby. The nine millimeter casings and the nine millimeter rounds recovered at the scene and from the victims were all fired from the same weapon. The .38 caliber rounds recovered at the scene and from the victims were all fired from the recovered .38 caliber revolver. Thus, there is no physical evidence to suggest a third weapon. No witness described seeing or hearing more than two guns being fired. There is no basis to believe that a third weapon or shooter was involved in these crimes.

[2] The jury was instructed in the killing zone concept.

[3] The jury was instructed that it could convict appellant of the attempted murders as an aider and abettor under the natural and probable consequences doctrine, with assault with a deadly weapon as the target crime.

[4] Lac testified that he fired the revolver, but the jury was free to reject this part of his testimony.

[5] The offense actually committed must be a natural and probable consequence of the target offense. (Ibid.) Appellant does not dispute that attempted murder is a natural and probable consequence of assault with a firearm.