People v. Johnson CA3 ( 2022 )

Filed 8/18/22 P. v. Johnson CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C076191
v. (Super. Ct. No. 12F01431)
CONRAD J. JOHNSON, JR., et al.,
Defendants and Appellants.
THE PEOPLE,
C076607
Plaintiff and Respondent,
(Super. Ct. No. 12F01431)
v.
LAM QUOC LUONG, ON TRANSFER
Defendant and Appellant.
On transfer from the California Supreme Court based on a change in the law, this
court considers the case again.
The Viet Pride and Khome Zong Tong (KZT) gangs are rivals of the Hop Sing
street gang. In 2012, Kao Saechao, a Hop Sing gang member, entered a store in a
shopping center in South Sacramento, a gathering place for KZT and Viet Pride members
who consider the shopping center their territory. A minute later, defendants Jhordan
1
Villanueva and Danny Dien Do, Viet Pride gang members, appeared outside the store and
were joined soon after by defendants Roderick Bernard Randall and Conrad J. Johnson,
Jr., KZT gang members. Villanueva, Do, and Randall challenged Saechao to come
outside and fight. Saechao, fearing there would be a shootout if he left the store, called
other Hop Sing members for help, and they arrived shortly thereafter in a red Honda.
Shots were fired at the Honda by defendants Lam Quoc Luong and Johnson, and
occupants were hit.
A jury convicted defendants Luong, Villanueva, Do, Randall, and Johnson for the
attempted murders of J.T., S.V., J.S., and K.S. It also found Randall guilty of possessing
MDMA1 for sale. In addition, the jury also found true allegations that certain offenses
were committed willfully, deliberately, and with premeditation, a principal intentionally
and personally used a firearm, a principal intentionally and personally discharged a
firearm, a principal personally caused great bodily injury to a person other than an
accomplice, and certain offenses were committed for the benefit of a criminal street gang,
KZT.
The trial court found true allegations that Johnson and Randall each served a prior
prison term and had been convicted of a serious felony. It sentenced Luong to an
aggregate term of 64 years to life in state prison; Villanueva and Do to aggregate terms of
32 years to life in state prison; Randall to an aggregate term of 88 years to life in state
prison; and Johnson to an aggregate term of 83 years to life in state prison.
In their opening appellate briefs, defendants contended the trial court committed
various evidentiary, instructional, and sentencing errors. They also asserted there was
insufficient evidence to support their convictions and that the case must be remanded to
allow the trial court to exercise its newly acquired discretion to strike the firearm
enhancements imposed pursuant to Penal Code section 12022.53.2 In its original
1 Methylenedioxymethamphetamine, colloquially known as “Ecstasy.”
2 Undesignated statutory references are to the Penal Code.
2
opinion, this court concluded Randall’s conviction for possession of MDMA for sale had
to be reversed because there was insufficient evidence that he knew of the drug’s
presence or exercised dominion and control over the same. As for the remainder of the
judgments, this court ordered a remand for correction of custody credits and to allow the
trial court to exercise its discretion whether to strike any of the firearm enhancements
and, if appropriate, to resentence defendants, but otherwise affirmed.
The California Supreme Court granted review and transferred the matter back to
this court with directions to vacate our decision and reconsider the cause in light of
Senate Bill No. 775 (2021-2022 Reg. Sess.) which allows defendants to raise on direct
appeal their claims concerning the effect of amendments to laws relating to attempted
murder enacted in Senate Bill No. 1437 (2017-2018 Reg. Sess.). (§ 1172.6, subd. (g).)3
This court vacated its decision and we now reconsider the entire matter.
We now conclude (1) we will reverse the attempted murder convictions of Do,
Randall, and Villanueva, along with the accompanying enhancements, but we will affirm
the attempted murder convictions of Luong and Johnson; (2) relevant to whether Do,
Randall, and Villanueva may be retried, there was sufficient evidence to convict Do,
Randall, and Villanueva of attempted murder; (3) the trial court did not err in declining to
instruct the jury on the crime of being an accessory to a felony; (4) the trial court properly
instructed the jury using CALCRIM No. 334 [accomplice testimony must be
corroborated: dispute whether witness is accomplice] instead of CALCRIM No. 335
[accomplice testimony: no dispute whether witness is accomplice]; (5) the trial court
properly admitted evidence that cars parked in a witness’s driveway were vandalized the
night before the witness testified; (6) the trial court was not required to instruct on
unanimity; (7) any error in admitting evidence of Villanueva’s prior contacts with police
was harmless beyond a reasonable doubt; (8) Randall’s conviction for possession of
3 Effective June 30, 2022, section 1170.95 was recodified without substantive change as
section 1172.6. (Stats. 2022, ch. 58, § 10.)
3
MDMA for sale must be reversed because there was insufficient evidence; (9) Luong is
entitled to additional custody credit; (10) we will remand the matter to permit the trial
court to exercise its discretion whether to strike the firearm enhancements under
section 12022.53; (11) we will remand the matter to permit the trial court to exercise its
discretion whether to strike the prior serious felony enhancements; (12) the gang
enhancements must be reversed and remanded for retrial as a result of legislative
changes; (13) the trial court, on remand, must allow Luong to make a record of
information for an eventual youth offender parole hearing; and (14) Luong, on remand,
may request a hearing to present evidence on his ability to pay fines and assessments.
To summarize, we will reverse the attempted murder convictions of Do, Randall,
and Villanueva (the People may seek retrial); reverse Randall’s conviction for possession
of MDMA for sale; affirm the attempted murder convictions of Luong and Johnson but
reverse the associated gang enhancements, vacate the sentences, and remand; and direct
the trial court to properly reflect Luong’s custody credit, allow Luong to make a record of
information for an eventual youth offender parole hearing, allow Luong to request a
hearing on his ability to pay fines and assessments, exercise its discretion with respect to
striking firearm and prior serious felony conviction enhancements, and conduct further
proceedings consistent with this opinion.
BACKGROUND
On the afternoon of January 12, 2012, Kao Saechao, a validated member of the
Hop Sing street gang, entered a store with his girlfriend at a shopping center in South
Sacramento to purchase water. The shopping center is a known gathering place for
members of the KZT and Viet Pride street gangs, rivals of the Hop Sing street gang.
There were at least six surveillance cameras located inside and outside the store. The
cameras recorded a significant portion of the activities and movements of defendants,
Saechao, and the shooting victims prior to and at the time of the shooting. The
surveillance videos were played for the jury and admitted into evidence.
A minute after Saechao and his girlfriend entered the store, two Viet Pride gang
members, Villanueva and Do, appeared outside the store. They returned a few minutes
4
later with two KZT gang members, Randall and Johnson, and former Viet Pride gang
member Jimmy Luu. All five men stood in the store’s doorway and peered inside.
Villanueva and Do remained outside the store, called Saechao “Hop Chop,” told
him that he was in their territory, and challenged him to come outside and fight. “Hop
Chop” is a derogatory term for a Hop Sing gang member. Saechao believed he would get
jumped if he went outside and that there would be a shootout if he attempted to drive
away, so he called others for help.
Soon after, Randall entered the store and spoke to Saechao while Villanueva and
Do remained outside. Randall told Saechao Villanueva and Do knew Saechao was a Hop
Sing gang member and to go outside and talk like a man.
On the day in question, Randall was wearing a court-ordered GPS tracking device
that recorded his location once every minute and the speed of his movements. While
Randall was inside the store encouraging Saechao to go outside, Saechao’s friends came
to the shopping center in a red Honda. Villanueva and Do looked in the direction of the
red Honda and immediately walked away from the store. Randall left the store a few
seconds later as the occupants of the red Honda—J.T., S.V., J.S., and K.S.—were starting
to walk toward the store. Randall yelled, “Chops, light them up.” Shots were fired at the
red Honda and its occupants from two directions. S.V. was shot in the back of his right
leg, and J.T. was shot twice in the head. Most, if not all, of the occupants of the red
Honda were members of Hop Sing.
Pursuant to a plea bargain, Luu testified for the prosecution at trial. When he
arrived at the shopping center on the day in question, he saw Randall and Johnson
looking toward the store from behind a dumpster, and Villanueva and Do outside the
store. After getting some coffee, he walked to the store to see what was going on and
was told by Villanueva or Do that there was a Hop Sing gang member inside. Luu
peeked inside, saw an Asian male and an Asian female at the counter, and walked back to
a cafe where he stood outside watching people gamble. He saw KZT gang members
Steven Nat and Luong sitting in a black BMW parked near where the men were
gambling. Nat was in the driver’s seat, and Luong was in the backseat wearing a
5
sweatshirt with the hood pulled up over his head. Shortly thereafter, the black BMW
moved and parked next to a Vietnamese restaurant in the same shopping center.
Luu saw the red Honda pull into the shopping center about 10 minutes later.
“[T]he car screeched in, pulled in fast, and then [a] couple of people hopped out [of] the
car.” He heard a gunshot almost immediately thereafter, turned around, and saw Johnson
running with a “shiny gun.” He also saw Luong fire a “fully automatic” firearm from the
sunroof of the black BMW as it rolled past the red Honda. Luu heard two sets of shots:
two pops followed by “the other gun . . . letting loose.” The gunshots came from
different directions. When asked about his understanding of the relationship between
KZT and Viet Pride on the date of the shooting, Luu responded, “They had one motive.
They dislike Hop Sing.”
Two types of ammunition were recovered from the scene: 17 nine-millimeter
bullets and casings and thirteen .45-caliber bullets and casings. Most of the .45-caliber
casings were found near the dumpsters in the parking lot.
After the shooting, a witness whose house backed up to the shopping center
described seeing an individual wearing a black baseball cap with grey or white writing on
the front and carrying a handgun jump over the fence and run toward a nearby street. The
police set up a perimeter around the area and knocked loudly on the door at a house
rented by Randall. When no one answered, the police obtained a search warrant. When
law enforcement officers arrived at Randall’s rental home, Luong’s car was parked in the
driveway. Johnson exited the house that evening and he was the only person inside.
Among other things, police found a .45-caliber pistol with an extended magazine inside a
toilet tank. It was later determined that the .45-caliber casings recovered at the scene had
been fired by the pistol found inside the toilet tank. A black baseball cap matching the
one described by the witness and the one Johnson was seen wearing in the surveillance
video taken outside the store was found in the bottom of a trash can inside the residence.
Johnson’s hands tested positive for gunshot residue.
After the shooting, Luong and Nat went to Ann N.’s house. Ann was friends with
Nat’s girlfriend, Michelle B. The black BMW used in the shooting belonged to Michelle,
6
who had lent the car to Nat for the day. Nat called Michelle at work and had Ann go get
Michelle and bring her back to Ann’s house. When Michelle arrived, her black BMW
was parked in Ann’s garage. According to Michelle, Nat seemed “[k]ind of worried,”
while Luong appeared “very calm.” Luong told Michelle “to get rid of the car . . . to get
rid of the evidence.” More particularly, he told her to “burn” the car or do an “I-job,”
meaning “damage the whole car so that way the insurance could pay for the whole car.”
Michelle left the car in Ann’s garage for several months before selling it to someone in
Salinas. The car’s new owner found an expended nine-millimeter shell inside. Ballistics
testing revealed that the shell found in Michelle’s car was fired from the same gun as the
nine-millimeter casings found at the scene.
Taizo Takahashi, a detective with the Sacramento County Sheriff’s Department,
testified for the prosecution as an expert on Asian gangs. Takahashi had spent the past
two years working as a detective in the gang suppression unit. Prior to that, he had spent
time working on the Asian gang task force and as a gang intelligence officer at the Rio
Cosumnes Correctional Center. Takahashi’s contacts with gang members in his current
assignment included proactively contacting gang members and gathering information
about gang members and the gangs themselves, interviewing gang members while
investigating gang-related crimes, and speaking to gang members who were victims of
crime. He also gathered information about gangs by reviewing reports and talking to
other law enforcement officers. He estimated that he had spoken to at least 100 Asian
gang members, investigated at least 20 Asian gang-related crimes, and reviewed at least
100 reports regarding such crimes.
Takahashi was familiar with KZT and Viet Pride, explaining that both had been
recognized by the Sacramento County Sheriff’s Department and virtually every other law
enforcement agency in the surrounding areas as Asian gangs. The two gangs were
aligned and shared a close relationship. Both gang’s primary rival was Hop Sing.
According to Takahashi, the rivalry between Viet Pride and Hop Sing was “so deep that
the likelihood of something very violent happening when their paths crossed [was] very
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high.” The shopping center where the shootings occurred was considered KZT and Viet
Pride turf.
Takahashi became familiar with KZT through street contacts and interviews with
KZT gang members, reports that he reviewed, and a network of Asian gang investigators.
According to Takahashi, Randall was recognized by Asian gang experts as a leader, if not
the leader, of KZT. Takahashi opined that KZT’s primary activities included burglary,
possession for sale of methamphetamine and marijuana, possession of firearms, carrying
concealed weapons, carrying loaded firearms in public places, attempted murder, and
shooting at occupied dwellings. He testified about several incidents that resulted in the
conviction of KZT gang members.
Takahashi had quite a few contacts with Viet Pride members in the past, although
his contacts more recently had been limited to around five. A number of Viet Pride gang
members had tattoos that read: “Rest in Peace, Gia Huynh or aka Yogi.” Takahashi
explained that Gia Huynh was a Viet Pride gang member who was killed execution style
in the shopping center in 2010. The primary activities of Viet Pride included carrying
concealed firearms, possession of methamphetamine for sale, and possession of firearms.
Takahashi further testified that Hop Sing was an Asian street gang, and its primary
activities included “drive-by shootings, up to and including homicide.” According to
Takahashi, many Hop Sing gang members “have been found with weapons as well as
loaded weapons, concealed weapons.”
Takahashi opined that defendants’ actions benefited KZT, explaining that “[w]hen
a gang member shows up on your territory, there is an expectation of a reaction to that
sign of disrespect. . . . [¶] So that sign of disrespect has to be addressed. And in this
case it was by those involved in this case by confronting him, and if the allegations are
true, . . . ultimately shooting at them.” According to Takahashi, it “not only bolsters the
respect that they have . . . but it . . . further instills fear in their rivals as well as their
community . . . .” Takahashi further opined that if members of Viet Pride confronted a
member or associate of Hop Sing in a known KZT/Viet Pride territory, challenged him to
a fight, and called him “Hop Chop,” it would be reasonably foreseeable that a shooting
8
might occur. The same would be true if a member of KZT confronted a member or
associate of Hop Sing in a known KZT/Viet Pride territory and told him to exit the store
to confront other KZT and Viet Pride gang members.
The jury found defendants Luong, Villanueva, Do, Randall, and Johnson guilty of
the attempted murders of J.T. (count one), S.V. (count two), J.S. (count three), and K.S.
(count four) (§§ 664, 187, subd. (a)). The jury found Randall guilty of possessing
MDMA for sale. (Health & Saf. Code, § 11378; count five.) The jury also found true
allegations that counts one through four were committed willfully, deliberately, and with
premeditation (§ 664, subd. (a)); a principal intentionally and personally used a firearm in
the commission of counts one through four (§ 12022.53, subds. (b), (e)(1)); a principal
intentionally and personally discharged a firearm in the commission of counts one
through four (§ 12022.53, subds. (c), (e)(1)); a principal personally caused great bodily
injury as defined in section 12022.7 to a person other than an accomplice in the
commission of counts one and two (§ 12022.53, subds. (d), (e)(1)); and counts one
through five were committed for the benefit of, at the direction of, or in association with,
a criminal street gang, to wit, KZT, with the specific intent to promote, further, or assist
in criminal conduct by said gang members (§ 186.22, subd. (b)(1)).
In a bifurcated proceeding, the trial court found true allegations that Johnson
and Randall each served a prior prison term within the meaning of section 667.5,
subdivision (b), and had been convicted of a serious felony within the meaning of the
three strikes law (§§ 667, subds. (b)-(i) & 1170.12) and section 667, subdivision (a).
The trial court sentenced Luong to an aggregate term of 64 years to life in state
prison, consisting of two consecutive terms of seven years to life on counts one and two,
plus two consecutive terms of 25 years to life for the firearm enhancements under
section 12022.53, subdivisions (d) and (e)(1). It imposed concurrent sentences on counts
three and four.
The trial court sentenced Villanueva and Do to aggregate terms of 32 years to life
in state prison, consisting of seven years to life on count one, plus a consecutive 25 years
9
to life for the firearm enhancement under section 12022.53, subdivisions (d) and (e)(1).
It imposed concurrent sentences on counts two, three, and four.
The trial court sentenced Randall to an aggregate term of 88 years to life in state
prison, consisting of two consecutive terms of 14 years to life on counts one and two
(seven years, doubled for the prior strike), plus two consecutive terms of 25 years to life
on the firearm enhancements under section 12022.53, subdivisions (d) and (e)(1), plus
two consecutive terms of five years for the prior serious felony enhancements. It
imposed concurrent sentences on counts three, four, and five, and it struck the prior
prison term enhancements.
The trial court sentenced Johnson to an aggregate term of 83 years to life in state
prison, consisting of two consecutive terms of 14 years to life on counts one and three
(seven years, doubled for the prior strike), plus a consecutive 25 years to life on the
firearm enhancement under section 12022.53, subdivisions (d) and (e)(1) on count one,
plus a consecutive 20 years on the firearm enhancement under section 12022.53,
subdivisions (c) and (e)(1) on count three, plus two consecutive terms of five years for
the prior serious felony enhancements. It imposed concurrent sentences on counts two
and four, and struck the prior prison term enhancements.
DISCUSSION
I
We begin with a discussion of recent legislative changes to attempted murder
liability because those changes require reversal of the attempted murder convictions of
Do, Randall, and Villanueva.
Senate Bill No. 1437, enacted after the trial in this case, limited accomplice
liability under the felony-murder rule and eliminated the natural and probable
consequences doctrine as it relates to murder. (People v. Lewis (2021) 11 Cal.5th 952,
957, 959; People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile), superseded by
statute as stated in People v. Hola (2022) 77 Cal.App.5th 362, 370 (Hola).) As amended,
section 188 now “bars a conviction for first or second degree murder under a natural
and probable consequences theory.” (Gentile, at p. 846.) “Because section 188,
10
subdivision (a)(3), prohibits imputing malice based solely on participation in a crime,
the natural and probable consequences doctrine cannot prove an accomplice committed
attempted murder. Accordingly, the natural and probable consequences doctrine . . . is
now invalid.” (People v. Sanchez (2022) 75 Cal.App.5th 191, 196.) In its original
opinion, this court held that Villanueva, Do, and Randall were required to file a
postconviction petition for relief under Senate Bill No. 1437. Later, however, the
Legislature, in Senate Bill No. 775, amended former section 1170.95 to allow a defendant
to assert the retroactive effect of Senate Bill No. 1437 on direct appeal. “A person
convicted of murder, attempted murder, or manslaughter whose conviction is not final
may challenge on direct appeal the validity of that conviction based on the changes made
to Sections 188 and 189 by Senate Bill [No.] 1437 . . . .” (§ 1172.6, subd. (g).) The
California Supreme Court transferred the case back to this court to reconsider the cause in
light of Senate Bill No. 775.
The People now agree with Do, Randall, and Villanueva that their convictions for
attempted murder are no longer valid because the convictions may have been based on
the natural and probable consequences doctrine. However, the People argue that there is
no similar error with respect to the attempted murder convictions of Luong and Johnson
because they were direct perpetrators, not aiders and abettors.
In addition to jury instructions on attempted murder as a direct perpetrator, the
trial court instructed the jury on two theories of aiding and abetting: direct aiding and
abetting (defendant intended to aid in the commission of the charged crime) (CALCRIM
No. 401) and aiding and abetting under the natural and probable consequences doctrine
(defendant aided and abetted a public nuisance with the natural and probable
consequence being an attempted murder) (CALCRIM No. 403). The latter theory is now
invalid.
“When a trial court instructs a jury on two theories of guilt, one of which was
legally correct and one legally incorrect, reviewing courts refer to this as alternative-
theory error. [Citation.]” (People v. Glukhoy (2022) 77 Cal.App.5th 576, 592 (Glukhoy),
review granted July 27, 2022, S274792.) We assess prejudice using the harmless beyond
11
a reasonable doubt standard. (Ibid.) “Under that standard, ‘[t]he reviewing court must
reverse the conviction unless, after examining the entire cause, including the evidence,
and considering all relevant circumstances, it determines the error was harmless beyond a
reasonable doubt.’ [Citation.] The reviewing court asks: ‘ “Is it clear beyond a
reasonable doubt that a rational jury would have found the defendant guilty absent the
error?” ’ [Citation.]” (Id. at p. 593, italics omitted.)
As the People acknowledge, Do, Randall, and Villanueva were not shooters, and
the prosecutor argued in closing argument that these defendants were guilty under both
theories of aiding and abetting: direct aiding and abetting and aiding and abetting under
the natural and probable consequences doctrine. Because the evidence of direct aiding
and abetting was not overwhelming as compared to aiding and abetting under the natural
and probable consequences doctrine, we cannot say with any confidence that the jury did
not rely on a natural and probable consequences theory. We therefore cannot conclude
the error in instructing the jury on the natural and probable consequences doctrine was
harmless beyond a reasonable doubt. We will reverse the attempted murder convictions
of Do, Randall, and Villanueva, with their associated enhancements.
Do, Randall, and Villanueva also argue, as they did in their original briefing, that
the evidence was insufficient to convict them of attempted murder on any aiding and
abetting theory. Therefore, they reason, they cannot be retried for the attempted murders.
We disagree. As we held in the original opinion (and reiterate in the next part of this
discussion), there was sufficient evidence to convict Do, Randall, and Villanueva under
the now-invalid theory of aiding and abetting under the natural and probable
consequences doctrine. Even though the convictions under the now-invalid theory cannot
stand, the People may retry the attempted murder counts and present evidence and
argument under one or more currently valid theories. “When there has been a
postconviction change in the statutory or decisional law that invalidates a theory upon
which the conviction was based and reversal is warranted, appellate courts remand the
case to the trial court to allow the prosecution to retry the defendant on a legally valid
theory.” (Hola, supra, 77 Cal.App.5th at p. 371; see also People v. Chiu (2014) 59
12
Cal.4th 155, 168 (Chiu) [treating the change of law as instructional error and allowing
retrial under a valid theory].) On remand, the People may seek to retry Do, Randall, and
Villanueva for the alleged counts of attempted murder and related enhancements.
While we hold that the attempted murder convictions of Do, Randall, and
Villanueva must be reversed, we agree with the People that Senate Bill No. 1437 does not
also invalidate the attempted murder convictions of Luong and Johnson. Unlike Do,
Randall, and Villanueva, who were not shooters, Luong and Johnson both discharged
firearms at the victims in the red Honda. Luong was in the backseat of the black BMW.
A witness saw him rise up through the sunroof of the car and fire a fully automatic
firearm at the red Honda. Johnson was behind a dumpster when the shooting began and
was seen running from the area with a firearm. A search of his home revealed a firearm
that forensically matched the casings left at the scene where Johnson had been.
Johnson’s hands tested positive for gunshot residue soon after the shootings.
Although the jury was instructed on both direct perpetration and aiding and
abetting as to Luong and Johnson, the overwhelming evidence was that they were direct
perpetrators of the attempted murders. Luong makes no argument in his supplemental
brief that he was convicted on an aiding and abetting theory. He joins in arguments of
the other defendants, but none of them argued Luong was not a direct perpetrator.
Johnson claims that a witness who identified him as a shooter relied on a photograph, not
on the witness’s memory. However, in addition to the witness testimony, the firearm was
found in Johnson’s home, and gunshot residue was found on his hands. Thus, the record
does not support an argument Luong and Johnson were not direct perpetrators of the
attempted murders.
Because Luong and Johnson were direct perpetrators of the attempted murders,
any error in instructing on aiding and abetting under the natural and probable
consequences doctrine was harmless beyond a reasonable doubt. (Glukhoy, supra,
77 Cal.App.5th at p. 592, review granted.) They are not entitled to reversal of their
convictions for attempted murder.
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II
Villanueva and Do contend, as they did in their original briefing, that there is
insufficient evidence to convict them on any aiding and abetting theory. Specifically,
they argue the evidence cannot support their convictions for attempted murder under
either a direct aider and abettor theory or under the natural and probable consequences
doctrine. Randall joins these arguments. Therefore, they reason, they cannot be retried
for the attempted murders.
We are not currently in a position to say that on remand, the People will be unable
to present sufficient evidence to convict Villanueva, Do, and Randall on a currently valid
theory of aiding and abetting. We simply conclude that because there was sufficient
evidence to convict Villanueva, Do, and Randall on a now-invalid aiding and abetting
theory based on the natural and probable consequences doctrine -- a theory that was
legally valid at the time of the convictions -- the People may seek to retry them under any
currently valid theory. (Hola, supra, 77 Cal.App.5th at p. 371.) While it may seem
counter-intuitive that we spend much of the remainder of this part of the discussion
addressing the sufficiency of the evidence for a now-invalid theory, we do so to explain
why the People may seek retrial.
A
“Substantial evidence is evidence that is ‘ “reasonable in nature, credible, and of
solid value.” ’ [Citation.] ‘In reviewing the sufficiency of the evidence, we must
determine “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” ’ [Citation.] We must presume in support of the judgment
the existence of every fact that the trier of fact could reasonably deduce from the
evidence. [Citation.] ‘The focus of the substantial evidence test is on the whole record of
evidence presented to the trier of fact, rather than on “ ‘isolated bits of evidence.’ ”
[Citation.]’ [Citation.]” (People v. Medina (2009) 46 Cal.4th 913, 919 (Medina).)
“Under California law, a person who aids and abets the commission of a crime is a
‘principal’ in the crime, and thus shares the guilt of the actual perpetrator. (§ 31.)”
14
(People v. Prettyman (1996) 14 Cal.4th 248, 259 (Prettyman).) “[A]n aider and abettor is
a person who ‘acting with (1) knowledge of the unlawful purpose of the perpetrator; and
(2) the intent or purpose of committing, encouraging, or facilitating the commission of
the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission
of the crime.’ ” (Ibid.)
In Prettyman, the California Supreme Court explained: “It sometimes happens
that an accomplice assists or encourages a confederate to commit one crime, and the
confederate commits another, more serious crime (the nontarget offense). Whether the
accomplice may be held responsible for that nontarget offense turns not only upon a
consideration of the general principles of accomplice liability set forth [above], but also
upon a consideration of the ‘natural and probable consequences’ doctrine.” (Prettyman,
supra, 14 Cal.4th at pp. 259-260.) The court added: “Under California law, a person
who aids and abets a confederate in the commission of a criminal act is liable not only for
that crime (the target crime), but also for any other offense (nontarget crime) committed
by the confederate as a ‘natural and probable consequence’ of the crime originally aided
and abetted. To convict a defendant of a nontarget crime as an accomplice under the
‘natural and probable consequences’ doctrine, the jury must find that, with knowledge of
the perpetrator’s unlawful purpose, and with the intent of committing, encouraging, or
facilitating the commission of the target crime, the defendant aided, promoted,
encouraged, or instigated the commission of the target crime. The jury must also find
that the defendant’s confederate committed an offense other than the target crime, and
that the nontarget offense perpetrated by the confederate was a ‘natural and probable
consequence’ of the target crime that the defendant assisted or encouraged.” (Id. at p.
254.)
As the California Supreme had further explained: “A nontarget offense is a
‘ “natural and probable consequence” ’ of the target offense if, judged objectively, the
additional offense was reasonably foreseeable. (Medina, supra, 46 Cal.4th at p. 920.)
The inquiry does not depend on whether the aider and abettor actually foresaw the
nontarget offense. (Ibid.) Rather, liability ‘ “is measured by whether a reasonable person
15
in the defendant’s position would have or should have known that the charged offense
was a reasonably foreseeable consequence of the act aided and abetted.” ’ (Ibid.)
Reasonable foreseeability ‘is a factual issue to be resolved by the jury.’ (Id. at p. 920.)”
(Chiu, supra, 59 Cal.4th at pp. 161-162.) For a shooting to be reasonably foreseeable in
the gang context, it is not necessary for there to have been a prior discussion of or an
agreement to a shooting, or for a gang member to have known a fellow gang member was
in fact armed. (Medina, at p. 924.)
Here, the prosecution’s theory at trial was that Johnson and Luong were the
shooters, and that Randall, Villanueva, and Do were guilty either as direct aiders and
abettors of the attempted murders or under the natural and probable consequences
doctrine. The jury was instructed in the language of CALCRIM No. 403 in pertinent part
as follows:
“Natural and Probable Consequences: Before you may decide whether a
defendant is guilty of attempted murder as an aider and abettor as charged in Counts One,
Two, Three, and Four, you must decide whether he is guilty of disturbing the peace by
challenging someone to fight in violation of Penal Code section 415.
“To prove that the defendant is guilty of attempted murder as an aider and abettor,
the People must prove that:
“1. The defendant is guilty of challenging someone to fight;
“2. During the commission of challenging someone to fight, a coparticipant in
that crime of challenging someone to fight committed the crime of attempted murder; and
“3. Under all the circumstances, a reasonable person in the defendant’s position
would have known that the commission of attempted murder was a natural and probable
consequence of the commission of challenging someone to a fight.
“A coparticipant in a crime is the perpetrator or anyone who aided and abetted the
perpetrator.”
Defendants do not dispute that they are guilty of the target offense of challenging
Saechao to a fight for purposes of appeal. Rather, they assert that, even assuming they
are guilty of the target offense, there is no evidence to support a finding that (1) the
16
perpetrators of the attempted murders—Luong and Johnson—participated in the crime of
challenging someone to fight, or (2) the attempted murders were a reasonably foreseeable
consequence of challenging Saechao to a fight because it is undisputed that the shooting
victims were not present at the time the challenge was issued.
However, viewing the record as a whole and considering the evidence in the light
most favorable to the verdict, there was sufficient evidence to support a finding that
Luong and Johnson participated in a common plan to assault Saechao, which included
challenging him to a fight. The evidence adduced at trial showed that Villanueva and Do
were members of Viet Pride, Luong, Johnson, and Randall were members of KZT, and
Viet Pride and KZT were aligned and shared a common enemy, Hop Sing. Randall was a
leader, if not the leader, of KZT. Villanueva, Do, Randall, and Johnson were videotaped
peering inside the store together and milling around outside thereafter. Luong’s car was
parked in Randall’s driveway around the corner from the shopping center on the day of
the shooting. Luong and Johnson were in a position to shoot just prior to the shooting
and began shooting immediately after Randall yelled, “Chops, light them up.”
The jury reasonably could infer that Luong and Johnson knew of Saechao’s
presence inside the store and Villanueva, Do, and Randall’s efforts to get Saechao to
leave the store and engage in a fight, and that Luong and Johnson encouraged and/or
facilitated the commission of the target offense by putting themselves in a position to
assault (shoot) Saechao if and when he exited the store. Stated another way, there was
ample evidence to support the jury’s finding that during the commission of challenging
someone to a fight, a coparticipant in that crime committed the crime of attempted
murder. That Luong and Johnson did not challenge Saechao to a fight or otherwise
encourage him to go outside is of no consequence. (People v. Smith (2014) 60 Cal.4th
603, 613 [“The statutes and, accordingly, the natural and probable consequences doctrine,
do not distinguish among principals on the basis of whether they directly or indirectly
aided and abetted the target crime . . . .”].)
There was also ample evidence to support the jury’s finding that a reasonable
person in Villanueva, Do, and Randall’s positions would have known that the
17
commission of attempted murder was a natural and probable consequence of challenging
Saechao to a fight. As the jury was instructed, in deciding whether a consequence is
natural and probable, it was required to consider all of the circumstances established by
the evidence. Those circumstances included the following: Villanueva, Do, and Randall
knew Saechao was a member of a rival gang. Indeed, that was the stated basis for
challenging him to a fight. Knowing that was the case, Villanueva and Do, with
Randall’s knowledge and support, effectively trapped Saechao inside the store by
remaining outside. A reasonable person in Villanueva, Do, and Randall’s positions
would have or should have known that Saechao, who refused to leave the store, would
likely call his fellow gang members for help and that the situation would escalate.
Takahashi testified that it was common for members of all three gangs to carry firearms.
He explained that “gang members never know when they’re going to run into trouble. . . .
[T]hey have to be ready to protect themselves at all times. . . . For instance, the rivalry
between Hop Sing and Viet Pride is so deep that the likelihood of something very violent
happening when their paths cross[ed] [was] very high.” Takahashi had previously
testified about two separate shootings of Viet Pride gang members by Hop Sing gang
members, one of which occurred in the same shopping center two years earlier.
That the shooting victims were not present when Villanueva and Do challenged
Saechao to fight is not dispositive. “The precise consequence need not have been
foreseen.” (Medina, supra, 46 Cal.4th at p. 927.) It is sufficient that under the factual
circumstances of this case that a reasonable person in Villanueva, Do, and Randall’s
positions would have or should have known that a shooting was a reasonably foreseeable
consequence of challenging a rival gang member to fight, and then trapping him inside a
store in hostile territory. (Ibid.) Even if Villanueva, Do, and Randall reasonably could
not have foreseen the attempted murders of the occupants of the red Honda, under the
circumstances of this case, they would or should have known that a shooting was a
reasonably foreseeable consequence of challenging Saechao to a fight. (Ibid.)
Because there was sufficient evidence to support Villanueva, Do, and Randall’s
attempted murder convictions under the now-invalid natural and probable consequences
18
doctrine, the People may seek to retry them under any currently valid theory. (Hola,
supra, 77 Cal.App.5th at p. 371.)
Villanueva further contends he could not be convicted of attempted murder as the
natural and probable consequence of challenging someone to a fight in violation of
section 415, a misdemeanor, because a defendant cannot be convicted of attempted
murder based on a trivial act. Do joins in the argument. But Villanueva and Do’s
commission of the target offense of challenging someone to a fight was not a trivial act
under the circumstances of this case.
As Villanueva notes, in Prettyman, supra, 14 Cal.4th at page 269, the Supreme
Court observed that “[m]urder . . . is not the ‘natural and probable consequence’ of
‘trivial’ activities. To trigger application of the ‘natural and probable consequences’
doctrine, there must be a close connection between the target crime aided and abetted and
the offense actually committed.” Villanueva appears to assume that a misdemeanor
offense always necessarily involves a trivial act. He is mistaken.
In People v. Canizalez (2011) 197 Cal.App.4th 832, 853, our colleagues in the
Second District Court of Appeal rejected a claim that a defendant cannot be convicted of
murder as the natural and probable consequence of a misdemeanor. “Given that the
natural and probable consequences doctrine looks to the reasonable likelihood that the
nontarget [offense] will result from the target offense, it would appear that applying the
label ‘felony’ or ‘misdemeanor’ to the target offense is not talismanic in deciding
whether the aider and abettor can be convicted of a nontarget murder. The key factor is
the ability to anticipate the likelihood that the nontarget offense will result from the target
offense. We cannot look to the naked elements of the target crime but must consider the
full factual context in which appellants acted.” (Id. at p. 854.)
Given the full factual context in which Villanueva and Do acted, as previously
discussed (challenging a rival gang member to a fight and effectively trapping him inside
a store in hostile territory), the likelihood that a shootout would occur as the result of
challenging Saechao to a fight was reasonably foreseeable. Accordingly, the jury was
19
properly instructed at the time that defendants could be convicted of attempted murder
based on their conduct in challenging Saechao to a fight.
In addition, Villanueva claims the natural and probable consequences doctrine
violated the separation of powers doctrine, the due process clause, and section 6 of the
Penal Code because it is a judicial creation of a nonstatutory crime. Do joins in this
argument. Again, we address these arguments merely to determine whether the People
may seek retrial.
Villanueva argues his convictions for attempted murder, which were based on the
judicially created natural and probable consequences doctrine, were invalid because the
Legislature alone is empowered to define the elements of crimes. For authority, he cites
article III, section 3 of the California Constitution. But that section merely states in
general terms the idea that there must be a separation of powers among the coordinate
branches of government. (See Cal. Const., art. III, § 3 [“The powers of state government
are legislative, executive, and judicial. Persons charged with the exercise of one power
may not exercise either of the others except as permitted by this Constitution.”].) He also
relies on case law interpreting section 6 of the Penal Code, which provides in relevant
part that “[n]o act or omission . . . is criminal or punishable, except as prescribed or
authorized by this code.” In Keeler v. Superior Court (1970) 2 Cal.3d 619, 631,
superseded by statute on other grounds as stated in People v. Taylor (2004) 32 Cal.4th
863, 870, the California Supreme Court described the section as embodying “a
fundamental principle of our tripartite form of government, i.e., that subject to the
constitutional prohibition against cruel and unusual punishment, the power to define
crimes and fix penalties is vested exclusively in the legislative branch.” Where the
statutory language in the Penal Code is vague, however, “ ‘the statutory definition
permits, even requires, judicial interpretation.’ ” (Chiu, supra, 59 Cal.4th at p. 164.)
Section 31, which establishes that aiders and abettors of crimes are treated as
principals, does not define aiding and abetting and “does not expressly mention the
natural and probable consequences doctrine.” (Chiu, supra, 59 Cal.4th at p. 164.)
Consequently, the courts “may . . . determine the extent of aiding and abetting liability
20
for a particular offense, keeping in mind the rational function that the doctrine is designed
to serve and with the goal of avoiding any unfairness which might redound from too
broad an application.” (Ibid.)
In addition, the Supreme Court previously rejected challenges that the natural and
probable consequences doctrine violates due process by eliminating the prosecution’s
obligation to prove malice. (See, e.g., People v. Letner and Tobin (2010) 50 Cal.4th 99,
184-185.) It also previously ruled that the natural and probable consequences doctrine
was “an ‘established rule’ of American jurisprudence” that had been embraced in
California. (Prettyman, supra, 14 Cal.4th at p. 260; see also People v. Gonzalez and
Soliz (2011) 52 Cal.4th 254, 300.) Because the natural and probable consequences
doctrine was recognized at common law and at the time of the convictions had been
firmly entrenched in California law as a theory of criminal liability (Chiu, supra,
59 Cal.4th at p. 163), Villanueva’s argument to the contrary fails.
B
We next discuss the sufficiency of the evidence concerning the gang
enhancements, applying the law existing at the time of trial. Because Villanueva
challenged the true findings on the gang enhancements for insufficiency of evidence, we
restate our opinion rejecting that contention. He contends there is insufficient evidence to
establish Viet Pride or KZT’s primary activities, or a pattern of criminal activity. We
disagree.
A gang enhancement requires that the defendant commit the underlying felony
“for the benefit of, at the direction of, or in association with any criminal street gang,
with the specific intent to promote, further, or assist in any criminal conduct by gang
members . . . .” (§ 186.22, subd. (b)(1).)
Before we address the merits of Villanueva’s claim, we pause to note that the
amended information alleged, and the jury found, that Villanueva committed the
attempted murders “for the benefit of, at the direction of, or in association with, a
criminal street gang, to wit, KZT, with the specific intent to promote, further, or assist in
criminal conduct by said gang members . . . .” (Italics added.) Thus, the People were not
21
required to prove that Viet Pride met the requirements for a criminal street gang under
section 186.22, subdivision (f). We understand that the evidence showed that Villanueva
was a member of Viet Pride, not KZT. Villanueva’s gang membership, however, is not
dispositive.4 Rather, the salient question is whether Villanueva committed the attempted
murders for the benefit of, at the direction of, or in association with KZT, and with the
specific intent to promote, further or assist in the criminal conduct of its members.
(§ 186.22, subd. (b).) There is ample evidence in the record to support a finding that he
did. As detailed above, Villanueva and Do committed the target crime of challenging
someone to a fight in association with KZT members Randall, Johnson, and Luong, and
evidence concerning Viet Pride’s relationship with KZT and their common rival Hop
Sing explained why members of the two gangs would cooperate in challenging a Hop
Sing gang member to a fight.
Turning to the merits of Villanueva’s claim, as it relates to KZT, the provisions of
section 186.22 require proof of the existence of a “criminal street gang.” (People v.
Vasquez (2016) 247 Cal.App.4th 909, 922.) A “criminal street gang” is defined in terms
of four elements: It must be “[(1)] any ongoing organization, association, or group of
three or more persons, whether formal or informal, [(2)] having as one of its primary
activities the commission of one or more [specified] criminal acts . . . , [(3)] having a
common name or common identifying sign or symbol, and [(4)] whose members
individually or collectively engage in, or have engaged in, a pattern of criminal gang
activity.” (§ 186.22, former subd. (f).)
The first and third elements are not at issue here. “To establish the second
element, the nature of the gang’s primary activities, the trier of fact may look to both the
past and present criminal activities of the gang. [Citation.] Isolated criminal conduct,
4 This is not to say that Villanueva’s membership in Viet Pride is not relevant. It plainly
is. The People, however, were not required to prove that Viet Pride was a “criminal
street gang” under section 186.22, subdivision (f) for purposes of establishing the gang
enhancement in this case.
22
however, is not enough. ‘Sufficient proof of the gang’s primary activities might consist
of evidence that the group’s members consistently and repeatedly have committed
criminal activity listed in the gang statute.’ [Citation.] Expert testimony based on an
adequate factual foundation might also be sufficient. [Citation.]” (In re Alexander L.
(2007) 149 Cal.App.4th 605, 611 (Alexander L.).) In People v. Nguyen (2015) 61 Cal.4th
1015, 1068, the California Supreme Court held that a gang expert’s testimony that “some
of the primary activities of the [gang in question] were ‘homicides, attempted homicides,
assaults, assault[s] with deadly weapons, home invasion robberies, burglaries, auto theft,
narcotic sales,’ ” nearly all which were crimes enumerated in the statute, was sufficient.
With respect to the fourth element, pattern of criminal activity, “[a] gang engages
in a ‘pattern of criminal gang activity’ when its members participate in ‘two or more’
statutorily enumerated criminal offenses (the so-called ‘predicate offenses’) that are
committed within a certain time frame and ‘on separate occasions, or by two or more
persons.’ ” (People v. Zermeno (1999) 21 Cal.4th 927, 930.) The People may rely on
evidence of the defendant’s commission of a currently charged offense to satisfy this
requirement. (People v. Loeun (1997) 17 Cal.4th 1, 10; accord, People v. Tran (2011)
51 Cal.4th 1040, 1046.) It is enough to show that a predicate crime was committed; a
conviction is unnecessary. (People v. Garcia (2014) 224 Cal.App.4th 519.) The crimes
necessary to establish a pattern of criminal gang activity need not be gang related.
(Alexander L., supra,149 Cal.App.4th at p. 611.)
Takahashi testified that KZT’s primary activities included burglary, possession for
sale of methamphetamine and marijuana, unlawful possession of firearms, carrying
concealed weapons, carrying loaded firearms in public, attempted murder, and shooting
at occupied dwellings. He also provided details of several such crimes. In 2011, a KZT
gang member was convicted of possessing 38 pounds of processed marijuana for sale and
being a felon in possession of a firearm. In July 2010, a KZT gang member was
convicted of being a minor in possession of a firearm in violation of section 29610. In
October 2010, a member of the Asian Little Thug gang, a subset of KZT, was convicted
23
of assault with a deadly weapon. And in July 2010, a KZT gang member was convicted
of conspiracy to transport narcotics for sale.
Villanueva does not dispute that the crimes asserted by Takahashi as KZT
primary activities are among the criminal acts enumerated in section 186.22, former
subdivision (e). (§ 186.22, former subd. (e)(3), (4), (5), (11), (32), (33).) Rather, he
argues “[t]here was an inadequate basis for [Takahashi’s] testimony” because he “cited to
no specific basis for the source of his opinions.” According to Villanueva, the testimony
“may have been based on reliable sources, such as court records, or on entirely unreliable
hearsay.” Randall and Do join in this aspect of Villanueva’s argument.
Takahashi testified that he had spoken to at least 100 Asian gang members, had
numerous contacts with KZT gang members, investigated at least 20 Asian gang-related
crimes, and reviewed at least 100 reports regarding such crimes. To the extent
Villanueva claims that portions of Takahashi’s testimony about gang primary activities
was impermissibly based on hearsay, the claim lacks merit. A gang expert may testify to
“ ‘non-case-specific general background information about [the gang], its rivalry with
[another gang], its primary activities, and its pattern of criminal activity, even if it was
based on hearsay sources.’ ” (People v. Blessett (2018) 22 Cal.App.5th 903, 944, review
granted Aug. 8, 2018, transferred & decision vacated Sept. 15, 2021, S249250, quoting
People v. Meraz (2016) 6 Cal.App.5th 1162, 1175, review granted March 22, 2017,
transferred Aug. 29, 2018, S239442.)
Villanueva’s reliance on In re Nathaniel C. (1991) 228 Cal.App.3d 990 (Nathaniel
C.) in support of his argument that there was an inadequate foundation for Takahashi’s
testimony is misplaced. In Nathaniel C., the Court of Appeal found that the evidence was
insufficient to show that a primary activity of a particular gang (the Family) was the
commission of any of statutorily specified offenses. (Id. at p. 1004.) The expert in that
case testified that “the primary activity of all of the gangs in his area [was] criminal” and
“gave a general list of the crimes he had in mind, only one of which—assault with a
deadly weapon—[was] included among the . . . offenses specified in the statute.” (Id. at
pp. 1004-1005.) The expert “did not identify the Family as one of the gangs in his area”
24
and instead “made a point of stating that the Family’s base is in San Bruno rather than his
jurisdiction, South San Francisco.” (Ibid.) The court reasoned that while the “primary
activity” element is “a proper subject of expert opinion, here the opinion did not relate
specifically to the Family and its activities. Thus, the evidence failed to establish that a
primary activity of the Family is commission of one or more of the offenses specified by
the statute.” (Id. at p. 1005.)
In contrast, Takahashi’s opinion related specifically to KZT and its activities.
Moreover, in addition to testifying about KZT’s primary activities, Takahashi offered
detailed descriptions of various incidents that resulted in the conviction of KZT gang
members for statutorily enumerated offenses.
Villanueva also relies on Alexander L., supra, 149 Cal.App.4th 605, in support of
his argument that Takahashi’s testimony lacks foundation. In that case the Court of
Appeal found there was insufficient evidence that a primary activity of the gang in
question was committing one or more of the enumerated crimes. There, the gang expert
provided the following testimony on the issue of primary activities: “ ‘I know they’ve
committed quite a few assaults with a deadly weapon, several assaults. I know they’ve
been involved in murders. [¶] I know they’ve been involved with auto thefts,
auto/vehicle burglaries, felony graffiti, narcotic violations.’ ” (Id. at p. 611.) There was
no testimony regarding the basis of the expert’s knowledge, and on cross-examination,
the expert acknowledged that the vast majority of cases with which he was familiar
involved graffiti. (Id. at p. 612.)
In contrast, Takahashi’s testimony was based in part on his personal experience in
investigating gang crimes, contacting gang members, reading reports of gang crimes, and
communicating regularly with fellow police officers. He also identified multiple
statutorily enumerated offenses that served as KZT’s primary activities and provided
specific examples of such crimes that had been committed by KZT gang members.
Villanueva also asserts “[t]he evidence supporting the ‘pattern of criminal gang
activity’ element was . . . insufficient because of the limiting instruction given [to] the
jury.” The jury was instructed that it could consider evidence of gang activity for the
25
limited purpose of (1) deciding whether a defendant acted with the knowledge, intent, or
purpose that are required for the gang enhancement, (2) deciding whether a defendant had
a motive to commit any of the crimes charged, (3) evaluating the credibility or
believability of a witness, and (4) considering the facts and information relied on by an
expert witness in reaching his or her opinion. The jury was explicitly instructed, “You
may not consider evidence of gang activity for any other purpose. And specifically what
I’m talking about is you may not conclude from evidence of gang activity in general that
any defendant is a person of bad character or that he has a disposition to commit crime.”
According to Villanueva, this limiting instruction precluded the jury from considering
Takahashi’s testimony concerning gang activity in deciding whether members of KZT
were engaged in a pattern of criminal activity, and without that testimony, there was no
evidence to support a finding that members of KZT were so engaged.
As detailed above, Takahashi testified in detail about the history and culture of
KZT, he described its primary activities, and provided specific examples of those
criminal activities. Of particular significance here, he based his opinion that KZT was a
criminal street gang in part on such information. Villanueva acknowledges that the jury
was permitted to consider the evidence of gang activity when considering the facts and
information relied on by Takahashi in reaching his opinions, but appears to assert that the
jury nevertheless was precluded from considering Takahashi’s testimony in deciding
whether members of KZT were engaged in a pattern of criminal activity because “the law
is well established that facts admitted as the basis for an expert’s opinion are not to be
considered for the truth of the matters asserted. (See, e.g., People v. Coleman (1985)
38 Cal.3d 69, 92 . . . .)”
The law concerning expert testimony has evolved since the briefing on appeal was
completed in this case. In People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), the
California Supreme Court concluded that “an expert’s testimony regarding the basis for
an opinion must be considered for its truth by the jury.” (Id. at p. 679.) The court also
distinguished between general background information and case-specific facts, and found
that an expert may relate background information regarding his or her knowledge and
26
expertise, as well as premises generally accepted within his or her field, even though such
testimony is offered for its truth. (Id. at pp. 683, 685 [“such background information has
never been subject to exclusion as hearsay, even though offered for its truth”].) As
relevant here, Takahashi was free to testify concerning general background information
relating to gang culture and the “history and general operations” of KZT (id. at p. 698),
including general background testimony about KZT’s operations, primary activities, and
pattern of criminal activities, which was unrelated to defendants or the current crimes
(People v. Meraz, supra, 6 Cal.App.5th at p. 1175, review granted & transferred; accord,
People v. Vega-Robles (2017) 9 Cal.App.5th 382, 411, overruled by People v. Valencia
(2021) 11 Cal.5th 818, 839 & fn. 17). For all the foregoing reasons, we conclude there is
sufficient evidence to support the jury’s finding that KZT is a criminal street gang under
the law existing at the time of trial.
III
Luong contends the trial court erred in declining to instruct the jury on the crime
of being an accessory to a felony in violation of section 32, thereby violating his federal
constitutional rights to due process of law, to a fair trial, and to present a defense.
According to Luong, such an instruction was required because his defense at trial was
that “if [he] were guilty of anything, it would be of being an accessory under Penal Code
section 32” based on Michelle B.’s testimony that after the shooting he told her to destroy
the BMW.
“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial
court must instruct on the general principles of law relevant to the issues raised by the
evidence. [Citations.] The general principles of law governing the case are those
principles closely and openly connected with the facts before the court, and which are
necessary for the jury’s understanding of the case.” [Citation.] That obligation has been
held to include giving instructions on lesser included offenses when the evidence raises a
question as to whether all of the elements of the charged offense were present [citation],
but not when there is no evidence that the offense was less than that charged.
27
[Citations.]’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154, quoting People v.
Sedeno (1974) 10 Cal.3d 703, 715-716.)
A lesser included offense is subsumed by the charged offense and as such is a
general principle of law that requires proper instruction to the jury. (People v. Birks
(1998) 19 Cal.4th 108, 117-118.) By contrast, the trial court has no duty to instruct on an
uncharged, lesser related offense. (People v. Rundle (2008) 43 Cal.4th 76, 147-148
(Rundle), overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421,
fn. 22; Birks, at p. 136.) Neither the state nor federal Constitution requires that a trial
court instruct on uncharged, lesser related offenses, even on request by the defense.
(Rundle, at pp. 147-148; Birks, at p. 124; Hopkins v. Reeves (1998) 524 U.S. 88, 96-97
[141 L.Ed.2d 76].)
Here, Luong was not charged with being an accessory to a felony, and as he
concedes, that offense is not a lesser included offense to murder or attempted murder.
(People v. Jennings (2010) 50 Cal.4th 616, 668.) Because it was an uncharged, lesser
related offense, the trial court had no duty to instruct the jury on the crime of being an
accessory to a felony. (Cf. Rundle, supra, 43 Cal.4th at pp. 147-148.)
Nor, contrary to Luong’s assertion, did the lack of an instruction on the crime of
being an accessory to a felony deprive him of an adequate opportunity to present his
defense. The California Supreme Court rejected a similar contention in People v.
Whisenhunt (2008) 44 Cal.4th 174, 213, holding: “An accessory instruction was not
essential to defendant’s defense. Through defendant’s testimony and defense counsel’s
closing argument, the jury was fully apprised of the defense theories that it was [someone
else] rather than defendant who [committed the charged offense].” As the record in this
case shows, Luong was not prevented from arguing to the jury that his culpability was
limited to being, at most, an accessory. Indeed, during closing argument, Luong’s trial
counsel told the jury, “He’s guilty of being [an] accessory after the fact, but that’s not one
of your choices,” and, “He’s guilty of helping [Nat] after the shooting.” Thus, the lack of
an instruction on being an accessory to a felony did not deprive Luong of an adequate
opportunity to present his claims.
28
Moreover, being an accessory after the fact is not a defense to the charged crime
of murder; it is a separate criminal offense. A defendant is liable for being an accessory
when he or she “harbors, conceals or aids” a principal after a felony is complete. (§ 32.)
Being an accessory to murder is not a defense to principal liability for the commission of
a murder—it is a discrete crime. (See People v. Jennings, supra, 50 Cal.4th at p. 668
[“[b]eing an accessory to murder is not a defense to aiding and abetting the commission
of murder—it is a separate criminal offense”].) Because accessory liability is not a
defense to principal liability, Luong was not entitled to instruction on accessory to a
felony as a defense to the charge of murder.
For all the foregoing reasons, the trial court did not err in declining to instruct on
being an accessory to a felony.
IV
Luong next contends the prosecution’s key witness Jimmy Luu was an accomplice
as a matter of law, and thus, the trial court should have instructed the jury in the language
of CALCRIM No. 335 [accomplice testimony: no dispute whether witness is
accomplice], as requested, instead of CALCRIM No. 334 [accomplice testimony must be
corroborated: dispute whether witness is accomplice]. As we will explain, the trial court
properly instructed the jury in the language of CALCRIM No. 334 instead of CALCRIM
No. 335.
Section 1111, which governs the use of accomplice testimony at trial, provides:
“A conviction can not be had upon the testimony of an accomplice unless it be
corroborated by such other evidence as shall tend to connect the defendant with the
commission of the offense; and the corroboration is not sufficient if it merely shows the
commission of the offense or the circumstances thereof.” Section 1111 defines an
accomplice “as one who is liable to prosecution for the identical offense charged against
the defendant on trial in the cause in which the testimony of the accomplice is given.”
“ ‘[W]hether a person is an accomplice is a question of fact for the jury unless the
facts and the inferences to be drawn therefrom are undisputed.’ [Citations.]” (People v.
Johnson (2016) 243 Cal.App.4th 1247, 1269.) To be an accomplice as a matter of law,
29
there can be no dispute that the witness was an accomplice, either with respect to the
facts or the inferences to be drawn therefrom. The burden is on the defendant to prove by
a preponderance of the evidence that a witness is an accomplice. (People v. Fauber
(1992) 2 Cal.4th 792, 834 (Fauber).)
Failure to instruct on accomplice liability is harmless if there is sufficient
corroborating evidence in the record. (People v. Lewis (2001) 26 Cal.4th 334, 370.)
Corroborating evidence may be slight, may be entirely circumstantial, and need not be
sufficient to establish every element of the charged offense. The evidence is sufficient if
it tends to connect the defendant with the crime in such a way as to satisfy the jury that
the accomplice is telling the truth. (Fauber, supra, 2 Cal.4th at p. 834.)
Luong argues that Luu was an accomplice as a matter of law because “it was
‘clear and undisputed’ that [he] was not only ‘liable to prosecution for the identical
offense[s] charged’ against [Luong], it was also ‘clear and undisputed’ that he was
arrested and charged with those offenses.” The People dispute Luong’s argument that
Luu was an accomplice as a matter of law, and argue in the alternative that any error in
failing to so instruct the jury was harmless. The People are correct.
As the trial court observed, Luu consistently testified that he had nothing to do
with the shootings. Rather, “the best he did was walk over to see what was going on,
looked in the window, and then left. [¶] So, it’s certainly not undisputed that he was an
accomplice.” Given Luu’s testimony, defendants failed to sustain their burden of
establishing Luu’s liability as an accomplice as a matter of law. Thus, the trial court
properly instructed the jury in the language of CALCRIM No. 334 (Accomplice
Testimony Must be Corroborated: Dispute Whether Witness is Accomplice).
In any event, it is clear from the record that sufficient corroborating evidence was
present to render any error harmless. Luong’s car was parked at Randall’s rental home
behind the shopping center on the day of the shooting. Randall, Nat, and Luong were
members of KZT, a rival of Hop Sing. Nat and Luong were often together in the weeks
leading up to the shooting. Nat was driving the black BMW on the day in question.
Shots were fired from the sunroof of the black BMW at Randall’s direction. A casing
30
found in the black BMW after the shooting matched those found at the scene of the
shooting. Luong was with Nat shortly after the shooting and instructed Michelle B. to
destroy the black BMW. Such evidence sufficiently connected Luong with the shooting
in such a way as to satisfy the jury that Luu was telling the truth. (See Fauber, supra,2 Cal.4th at p. 834.) Thus, any possible error in failing to instruct the jury that Luu was
an accomplice as a matter of law was harmless. (People v. Lewis, supra, 26 Cal.4th at
p. 370.) This evidence of corroboration likewise rebuts Luong’s claim that there was
insufficient evidence to support his convictions because Luu’s testimony was not
corroborated.
V
Luong also claims the trial court erred in admitting evidence that vehicles parked
in Michelle B.’s driveway were vandalized the night before she was scheduled to testify
at trial. Luong asserts that the evidence should have been excluded as more prejudicial
than probative under Evidence Code section 352. Villanueva joins in this argument.
There was no error.
At trial, Michelle B. was permitted to testify, over defense objections, that at
approximately 1:00 a.m. on the day she was scheduled to testify an unknown person
smashed the windows of four vehicles parked in her driveway. Michelle thought the
windows being broken had something to do with her testifying in this case because it
happened the night before she was scheduled to testify and feared something could
happen to her family. On cross-examination, Michelle acknowledged that Luong was in
jail when the windows were broken and that nobody had threatened her about testifying
in this case.
The trial court ruled that evidence the cars had been vandalized was admissible for
the limited purpose of evaluating Michelle B.’s credibility and so instructed the jury.
“Ms. [B] testified about the vandalism to her car [sic]. The witness’s state of mind, when
they are testifying to you, including if they were afraid or if they fear reprisal for their
testimony, their state of mind is relevant to your assessment of their testimony, what
credibility you give them, what weight you place on their testimony. So you can consider
31
her testimony about the vandalism of the car [sic] for what that may tell you about her
state of mind as a witness as she was testifying to you. [¶] But you cannot consider it as
evidence in itself as to the defendants’ guilt. As you know, the defendants are all in
custody. There is no evidence that they were aware of the vandalism to her car [sic],
ordered it, instigated it, authorized it, encouraged it in any way. So you are not to
consider that testimony by Ms. [B.] as reflecting on any conduct by the defendants
themselves. [¶] It’s relevant if you believe it is relevant to your assessment of her state
of mind as a witness, but it is not evidence that the defendants were in any way involved
directly or indirectly in the vandalism that occurred to her car [sic] that she told you
about.”
“Evidence that a witness is afraid to testify or fears retaliation for testifying is
relevant to the credibility of that witness and is therefore admissible. [Citations.] An
explanation of the basis for the witness’s fear is likewise relevant to [his or her]
credibility and is well within the discretion of the trial court.” (People v. Burgener
(2003) 29 Cal.4th 833, 869; see also Evid. Code, §§ 210, 780, subd. (f).) The standard
for admission of such evidence is very broad. For such evidence to be admissible, the
proponent does not have to show the threats or acts against the witness were done by the
defendant personally nor does the proponent have to show the witness’s fear of retaliation
is “directly linked” to the defendant. (People v. Gutierrez (1994) 23 Cal.App.4th 1576,
1588.) “It is not necessarily the source of the threat—but its existence—that is relevant
to the witness’s credibility.” (Burgener, at p. 870.)
The trial court has broad discretion in determining whether evidence is relevant,
and if so, whether the evidence nevertheless should be excluded under Evidence Code
section 352. We review the trial court’s exercise of that discretion under the abuse of
discretion standard. (People v. Rogers (2013) 57 Cal.4th 296, 326.)
Luong contends the standard for admissibility of third-party intimidation evidence
is so broad that it violates the accused’s due process rights unless Evidence Code
section 352 functions as a meaningful limitation upon the admission of such evidence.
Evidence of third-party threats, however, is limited by Evidence Code section 352.
32
(People v. Mendoza (2011) 52 Cal.4th 1056, 1085 [trial court has discretion “within the
limits of Evidence Code section 352” to permit the introduction of third-party threats].)
And, as we discuss below, the record demonstrates that the trial court performed a
section 352 analysis and did not abuse its discretion in admitting the evidence here.
At trial, the defense argued that the evidence was unduly prejudicial because
although the person responsible for the vandalism was unknown, there was a danger the
jury would assume that the vandalism was related to Michelle B.’s testimony based on its
timing. Luong’s trial counsel went even further and asserted that by allowing Michelle to
testify that the cars were vandalized the night before she was scheduled to testify, the
court was “essentially telling the jury that Lam Luong threatened her. And that’s
tantamount to consciousness of guilt.” In ruling that the evidence was admissible, the
trial court acknowledged the possibility for misuse but found that it could be cured with a
limiting instruction. “There is, on the [Evidence Code section] 352 balance, the possible
misuse that the jury would assume that it indicates some consciousness of guilt or activity
by the defendants, but I think that can be cured with a limiting instruction.” This is
precisely the sort of balancing test required by Evidence Code section 352, and the trial
court acted well within its discretion in admitting the challenged evidence for the limited
purpose of evaluating Michelle B.’s credibility as a witness, and by addressing any
potential misuse with a limiting instruction.
The evidence was probative on the issue of Michelle B.’s credibility, and any
prejudice resulting from the admission was substantially lessened by the court’s limiting
instruction. The trial court instructed the jury that it could consider Michelle’s testimony
about the vandalism for the limited purpose of assessing her credibility, but that it could
not “consider it as evidence in itself as to the defendants’ guilt.” In addition, the trial
court reminded the jury that “the defendants are all in custody,” and “[t]here is no
evidence that they were aware of the vandalism to her car [sic], ordered it, instigated it,
authorized it, encourage it in any way.” On this record, we find the risk of undue
prejudice was low, and in light of its probative value, the trial court did not err in denying
the defense’s request to exclude it under Evidence Code section 352.
33
VI
Johnson contends the trial court prejudicially erred “in failing to sua sponte
instruct the jury that it was required to unanimously agree as to the specific criminal act
that formed the basis for its verdicts of attempted murder in counts 1 through 4, and in
connection with the premeditation and deliberation enhancement allegations as to each of
those offenses.” According to Johnson, “some jurors may have believed [he was] guilty
based on one act, while others may have believed him guilty based on another, and there
is a basis for disagreement among the jurors as to the act constituting the charged
offenses and enhancements.” The remaining defendants join in this argument.
“In a criminal case, a jury verdict must be unanimous.” (People v. Russo (2001)
25 Cal.4th 1124, 1132 (Russo).) “Additionally, the jury must agree unanimously the
defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that
when the evidence suggests more than one discrete crime, either the prosecution must
elect among the crimes or the court must require the jury to agree on the same criminal
act.” (Ibid.) “The key to deciding whether to give the unanimity instruction lies in
considering its purpose. The jury must agree on a ‘particular crime’ [citation]; it would
be unacceptable if some jurors believed the defendant guilty of one crime and other jurors
believed [his or her] guilty of another. But unanimity as to exactly how the crime was
committed is not required. Thus, the unanimity instruction is appropriate ‘when
conviction on a single count could be based on two or more discrete criminal events,’ but
not ‘where multiple theories or acts may form the basis of a guilty verdict on one discrete
criminal event.’ [Citation.] In deciding whether to give the instruction, the trial court
must ask whether (1) there is a risk the jury may divide on two discrete crimes and not
agree on any particular crime, or (2) the evidence merely presents the possibility the jury
may divide, or be uncertain, as to the exact way the defendant is guilty of a single
discrete crime. In the first situation, but not the second, it should give the unanimity
instruction.” (Id. at pp. 1134-1135.)
Johnson contends the prosecution asserted several theories of liability (direct
perpetrator, aiding and abetting an attempted murder, and aiding and abetting based on
34
the predicate crime of disturbing the peace by challenging someone to fight), and that the
theories of liability were based on “various purported acts . . . , any one of which might
have constituted the offenses charged in counts 1 through 4 . . . .” Johnson identifies the
following purported acts: (1) Luong fired shots at all four victims, intending to kill each
one, and Johnson aided and abetted Luong; (2) Johnson fired shots at all four named
victims, intending to kill each one; (3) Luong fired shots at only the victims he saw exit
the car, intending to kill them, and Johnson aided and abetted Luong, and Johnson fired
shots at the other two victims, intending to kill them; and (4) Randall fired shots at all
four victims, intending to kill each one, and Luong and Johnson aided and abetted
Randall.
As previously discussed, the jury must agree on a particular crime, “[b]ut
unanimity as to exactly how the crime was committed is not required.” (Russo, supra,
25 Cal.4th at pp. 1134-1135.) In other words, “the unanimity instruction is appropriate
‘when conviction on a single count could be based on two or more discrete criminal
events,’ but not ‘where multiple theories or acts may form the basis of a guilty verdict on
one discrete criminal event.’ [Citation.]” (Id. at p. 1135.) Here, there was no risk that
the jury would divide on two discrete crimes and not agree on any particular crime.
Rather, the evidence presented the possibility the jury may divide, or be uncertain, as to
the exact way Johnson was guilty of a single discrete crime. The same is true with
respect to the other defendants. Accordingly, a unanimity instruction was not required.
(See ibid.)
VII
Villanueva next contends the evidence regarding his prior contacts with police
should have been excluded on hearsay grounds and its admission violated his Fifth
Amendment right to confrontation under Crawford v. Washington (2004) 541 U.S. 36[158 L.Ed.2d 177]. We agree the trial court erred in admitting the challenged evidence
but conclude the error was harmless beyond a reasonable doubt. Because we have
already concluded Villanueva’s conviction must be reversed, we restate our resolution of
this contention to guide the trial court on remand.
35
At trial, Takahashi testified that he considered the following contacts in forming
his opinion that Villanueva was a Viet Pride gang member. In February 2010, a law
enforcement officer observed Villanueva at a Starbucks on Florin Road with Luu, a
verified Viet Pride gang member, and Luong, a verified KZT gang member. In March
2006, Villanueva was contacted with David Le, a verified Viet Pride gang member, in
connection with a robbery investigation. Later that same day, Villanueva was contacted
with Le and Tommy Tran, a verified Viet Pride gang member, for a curfew violation. In
April 2006, Villanueva was contacted with his brother Aaron and Sonny Luu, Hop Sing
gang members, during a vehicle stop. A gun was found in the car, and Villanueva
claimed that the gun belonged to him. In February 2008, Villanueva was involved in a
fight at a movie theater along with several Asian males during which participants were
heard yelling the word “Crips.” In July 2008, Villanueva was arrested when marijuana
was found in his room during a probation search. He later was found in possession of
MDMA during a vehicle stop. In August 2008, Villanueva was arrested for possession of
MDMA while in the presence of Viet Pride gang members and associates. In July 2010,
Villanueva was contacted in a car with Viet Pride gang members, and police found guns
and crystal methamphetamine inside the car. In May 2011, Villanueva was contacted in a
car with three Viet Pride gang members.
“If an expert testifies to case-specific out-of-court statements to explain the bases
for his opinion, those statements are necessarily considered by the jury for their truth,
thus rendering them hearsay. Like any other hearsay evidence, it must be properly
admitted through an applicable hearsay exception.” (Sanchez, supra, 63 Cal.4th at
p. 684.) “Ordinarily, an improper admission of hearsay would constitute statutory error
under the Evidence Code. Under Crawford, however, if that hearsay was testimonial and
Crawford’s exceptions did not apply,” its admission “would also be an error of federal
constitutional magnitude.” (Id. at p. 685.)
Here, it is clear from the record that most, if not all, of Takahashi’s testimony
concerning Villanueva’s contacts with Viet Pride gang members constituted hearsay in
that it consisted of out-of-court statements that were offered for the truth of the matter
36
asserted. (Evid. Code, § 1200, subd. (a); Sanchez, supra, 63 Cal.4th at p. 684.)
Takahashi testified that he obtained the information by “reviewing reports, interviews
that [he] participated in, and in speaking with other Asian gang experts.” Thus, it appears
his testimony was not based on his personal knowledge. The record also indicates that at
least some of his testimony was gleaned from police reports or similar materials. In
addition to Takahashi’s testimony that he obtained some of the information by reviewing
reports, Takahashi testified about various incidents in which Villanueva was contacted by
law enforcement and observed to be in the company of Viet Pride gang members,
including a vehicle stop conducted by Officer Hasegawa of the Sacramento Police
Department, and an arrest by the Sacramento Police Department. The police reports and
similar material were testimonial. (Sanchez, at p. 694.) And because the prior contacts to
which Takahashi testified involved Villanueva, his testimony consisted of case-specific
facts. (Id. at p. 676.) Accordingly, the admission of the challenged evidence violated
state law and Villanueva’s rights under the confrontation clause. As we will explain,
however, the error was harmless beyond a reasonable doubt.
“Confrontation clause violations are subject to federal harmless-error analysis
under Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].” (People v.
Geier (2007) 41 Cal.4th 555, 608.) Under Chapman, the People must prove the errors
were harmless beyond a reasonable doubt, that is, the errors did not contribute to the
jury’s verdict. (People v. Houston (2012) 54 Cal.4th 1186, 1233; Sanchez, supra,
63 Cal.4th at p. 699.) “ ‘To say that an error did not contribute to the ensuing verdict
is . . . to find that error unimportant in relation to everything else the jury considered on
the issue in question, as revealed in the record.’ [Citation.] Thus, the focus is what the
jury actually decided and whether the error might have tainted its decision.” (People v.
Neal (2003) 31 Cal.4th 63, 86.)
Villanueva asserts that the admission of such “highly inflammatory activities,
which were not established by the adjudication of convictions, was highly prejudicial in
light of the dearth of evidence of [his] involvement in gang activities.” He also claims
that the challenged evidence “allowed the jury to ascertain a motive for [his]
37
involvement, and to congeal the liability for this brutal shooting against anyone with any
known ties to gangs that was at the scene of the shooting.” We disagree.
Putting aside the challenged evidence, there is overwhelming evidence that
Villanueva was a member of or affiliated with Viet Pride and was motivated by his
membership in that gang when he committed the target crime of challenging Saechao to a
fight. Luu testified that he had known Villanueva for five or six years, and when asked
whether Villanueva had any gang affiliations, Luu responded that “he was hanging out
with us. We was known as Viet Pride Crips.” Both Luu and Takahashi testified that
Villanueva had a “Rest in Peace, Gia Huynh or aka Yogi” tattoo, which was a common
tattoo of Viet Pride gang members. Takahashi also identified two photographs of
Villanueva posing with KZT and Viet Pride gang members. In addition, Villanueva was
with KZT and Viet Pride gang members on the day in question. He and another Viet
Pride gang member, Do, confronted a Hop Sing gang member, called him “Hop Chop,”
told him that he was in their territory, and challenged him to come outside and fight.
When Luu asked Villanueva and Do what was going on, one or both of them told Luu
that there was a “Hop Chop” inside. The shopping center where the shooting took place
was a known gathering place for KZT gang members. Significantly, much of
Villanueva’s activity on the day in question, including his presence outside the store, his
contacts with Saechao, and his association with Randall and Johnson, Do, and Luu, was
captured on videotape and shown to the jury. Given this evidence, no reasonable juror
could conclude that Villanueva’s actions were not gang motivated, and any error in
admitting evidence of Villanueva’s prior contacts with police was harmless beyond a
reasonable doubt.
VIII
Randall claims that his conviction for possession of MDMA for sale must be
reversed because there is insufficient evidence to show that he knew there was any
contraband in the bedroom closet where the MDMA was found and/or that he exercised
individual or joint dominion and control over the drugs. We agree.
38
At trial, evidence was presented linking Randall with three separate residences.
The first was an apartment on Power Inn Road that he had registered with the parole
department. Police searched that apartment and found two bags each containing 10,000
empty pill capsules. The police also found 100 to 200 red capsules filled with an
unknown white substance.
The second residence was a house Randall rented on Casa Grande Way. Police
searched that residence and, in addition to the .45-caliber semiautomatic firearm found in
the toilet tank, found four baggies each containing between 13 and 121 grams of cocaine.
The third residence was a house on Glen Rachael Court. Based on information
obtained from Randall’s GPS monitor, police were able to determine that after the
shooting, Randall went to the apartment on Power Inn Road and then to a house on Glen
Rachael Court, where he stayed for less than five minutes. Police searched that house at
1:45 a.m. on January 13, 2012, and found two kilos of MDMA, along with two pairs of
women’s size small sweatpants and a pair of men’s athletic shorts inside a duffle bag in a
bedroom closet. They also found $6,790 in cash and miscellaneous receipts and
paperwork in an envelope under the mattress. In addition, there was a photograph of
Randall and his girlfriend on the refrigerator in the kitchen. The MDMA found in the
bedroom closet on Glen Rachael Court forms the basis for Randall’s conviction.
“The essential elements of unlawful possession of a controlled substance are
‘dominion and control of the substance in a quantity usable for consumption or sale, with
knowledge of its presence and of its restricted dangerous drug character. Each of these
elements may be established circumstantially.’ [Citations.]” (People v. Martin (2001)
25 Cal.4th 1180, 1184.) Possession may be demonstrated by actual physical possession
or constructive possession. (People v. Williams (1971) 5 Cal.3d 211, 215.)
“Constructive possession occurs when the accused maintains control or a right to control
the contraband; possession may be imputed when the contraband is found in a place
which is immediately and exclusively accessible to the accused and subject to his
dominion and control, or to the joint dominion and control of the accused and another.”
(Ibid.)
39
“[T]he totality of circumstances will determine whether a defendant has exercised
the requisite control over contraband in the hands of another.” (Armstrong v. Superior
Court (1990) 217 Cal.App.3d 535, 539.) We thus review the evidence in its entirety,
rather than consider isolated bits of evidence. (People v. Slaughter (2002) 27 Cal.4th
1187, 1203.)
The People contend that based on the facts set forth above, “it was certainly
reasonable for the jury to find Randall guilty of the possession of a controlled substance
for sale charge.” “Every house associated with [Randall] contained drugs and other
evidence . . . that was consistent with possessing drugs for sale,” “there was undeniable
evidence that Randall was inside the Glen Rachael Court house just hours before it was
searched and the drugs were found,” and “a picture of Randall and his girlfriend was
found on the refrigerator in the house, providing even further evidence of his connection
to that house.”
While there is evidence Randall visited the house on Glen Rachael Court several
hours before the MDMA was found, “more than mere presence must be shown in order to
prove constructive possession: the People must also show that defendant had dominion
and control over the contraband.” (People v. Jenkins (1979) 91 Cal.App.3d 579, 584.)
Such evidence is missing in the case. There is no evidence linking Randall to the
bedroom in which the MDMA was found, such as clothing, mail, paperwork, pictures, or
fingerprints. While Randall’s picture was found on the refrigerator in the kitchen, there is
no evidence that he lived there. There is no evidence he had a key to the house or that
anything in it was his. Indeed, there is no evidence as to who owned or rented the house.
Even assuming the jury could infer from the evidence collected at the other two
residences that Randall was a drug dealer, there is insufficient evidence from which a
jury reasonably could conclude that he possessed the MDMA found in the Glen Rachael
Court house for sale or any other purpose. His presence at the house hours earlier and his
photograph on the kitchen refrigerator alone do not establish that he maintained control
or a right to control the MDMA found in the bedroom. Accordingly, we will reverse
Randall’s conviction for possession of MDMA for sale.
40
IX
Luong contends, and the People agree, that he is entitled to additional days of
presentence custody credit. The trial court granted Luong 730 days of custody credit,
consisting of 635 days for actual time in custody, plus an additional 95 days of good
conduct. Luong, however, was in custody for 652 days (from the time of his arrest on
August 2, 2012, through his sentencing on May 16, 2014), which entitled him to 97 days
of good conduct credit (15 percent of 654 is 97.8). Accordingly, Luong was entitled to a
total of 749 days of custody credit when he was originally sentenced. When Luong is
resentenced on remand, the trial court’s order must reflect that Luong was entitled to 749
days of custody credit when he was originally sentenced.
X
In supplemental briefing, defendants contend we must remand this matter for the
trial court to consider whether to strike the section 12022.53 firearm enhancements. We
agree as to Luong and Johnson, whose convictions for attempted murder we affirm.
At the time of defendants’ sentencing, the imposition of the section 12022.53
enhancements was mandatory, and the trial court had no discretion to strike them.
(Former § 12022.53, subd. (h) [“Notwithstanding Section 1385 or any other provision of
law, the court shall not strike an allegation under this section or a finding bringing a
person within the provisions of this section”].) On January 1, 2018, Senate Bill No. 620
(2017-2018 Reg. Sess.) went into effect. (Stats. 2017, ch. 682, §§ 1-2.) Senate Bill
No. 620 amended sections 12022.5 and 12022.53, removing the bar on striking a firearm
enhancement and granting the trial court discretion pursuant to section 1385 to strike or
dismiss an enhancement. (§§ 12022.5, subd. (c); 12022.53, subd. (h).)
Defendants contend, and the People agree, that the amendments to sections
12022.5 and 12022.53, potentially providing for lesser punishment, are retroactive to
cases not yet final. (See In re Estrada (1965) 63 Cal.2d 740; People v. Francis (1969)
71 Cal.2d 66, 75-76.) We agree. (People v. Woods (2018) 19 Cal.App.5th 1080, 1091.)
While the People acknowledge that the amendments to sections 12022.5 and
12022.53 apply retroactively, they assert that “not all [defendants] benefit from the new
41
statutory changes.” According to the People, remand is not appropriate as to Luong,
Randall, and Johnson because “[t]here is no reason to believe that the sentencing court
would exercise its new discretion to strike the firearm enhancements for” those
defendants. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [no remand for
resentencing on similar issue because the trial court already made its position clear].) We
are not persuaded.
In support of their assertion, the People note that the sentence imposed on
Villanueva and Do, 32 years to life, was substantially less than the 118 years to life
recommended by the probation department, and contend that “the court did not offer any
such sentencing breaks to the other three [defendants].” The People’s observation about
Villanueva and Do is correct, but their assertion that Luong, Randall, and Johnson were
not given any sentencing breaks is not. The probation department recommended that
Luong be sentenced to 118 years to life, Randall be sentenced to 177 years to life, and
Johnson be sentenced to 166 years to life. The sentences imposed, however, were
significantly less. Luong, Randall, and Johnson were sentenced to 64 years to life, 88
years to life, and 83 years to life, respectively. While the trial court’s decision to run two
of the attempted murder sentences consecutive as to Luong, Randall, and Johnson
(instead of concurrent as it did for Do and Villanueva) is potentially suggestive, the
record does not clearly indicate that the trial court would not, in any event, have
exercised its discretion to strike one or more of the section 12022.53 enhancements had it
been possible to do so at the time of the original sentencing. We will thus remand this
matter for the trial court to have an opportunity to exercise its sentencing discretion on
the firearm enhancements imposed on all defendants under section 12022.53.
We express no opinion as to how the trial court should exercise its newly granted
discretion on remand. We only conclude that, under the circumstances of this case, the
trial court should be provided the opportunity to exercise its discretion in the first
instance. (See People v. Brown (2007) 147 Cal.App.4th 1213, 1228 [noting that it is
generally appropriate to remand for resentencing when a court proceeded through
sentencing erroneously believing it lacked discretion to act in a certain way].)
42
XI
Johnson filed a supplemental brief seeking a remand for resentencing for the trial
court to exercise its discretion under Senate Bill No. 1393 to strike a five-year prior
serious felony enhancement in the interest of justice. The People agree that a remand is
appropriate.
Johnson received a five-year sentence enhancement pursuant to section 667,
subdivision (a)(1) for having been previously convicted of a serious felony. At the time
of sentencing, the trial court had no authority to strike a prior serious felony conviction in
connection with the imposition of a section 667 enhancement.5 However, Senate Bill
No. 1393, which became effective January 1, 2019, “delete[d] the restriction prohibiting a
judge from striking a prior serious felony conviction in connection with imposition of the
5-year enhancement . . . .” (Legis. Counsel’s Dig., Sen. Bill No. 1393 (2017-2018 Reg.
Sess.).) Because the judgment is not yet final, the change in the law will apply to
Johnson retroactively. (People v. Garcia (2018) 28 Cal.App.5th 961, 971-973.)
We will remand the case to give the trial court the opportunity to consider striking
Johnson’s prior serious felony enhancements pursuant to section 667, subdivision (a).
XII
Defendants contend in supplemental briefing on transfer from the California
Supreme Court that the gang enhancements are no longer valid as a result of changes to
the law in Senate Bill No. 333 (2021-2022 Reg. Sess.). The People agree with this
contention and urge this court to reverse those enhancements and remand for retrial.
We agree as to Luong and Johnson.
While this appeal was pending, Assembly Bill 333 amended the language of
section 186.22 to modify the showing necessary to prove gang offenses and gang
enhancements. (Stats. 2021, ch. 669, § 3, eff. Jan. 1, 2022.) The amendment contains
5 Prior to the enactment of Senate Bill No. 1393, subdivision (b) of section 1385 stated:
“This section does not authorize a judge to strike any prior conviction of a serious felony
for purposes of enhancement of a sentence under Section 667.”
43
new definitions of “criminal street gang” and “pattern of criminal gang activity.” It also
changed the requirements for proving actions benefited a criminal street gang. (§ 186.22,
subds. (e), (f), & (g).) The People agree defendants are entitled to reversal of the gang
enhancements because the record does not clearly establish the People proved the new
requirements for a gang enhancement. They acknowledge the evidence is unclear as to
whether the predicate offenses provided a common benefit to the gang or that the benefit
was more than reputational, under the amended statute. (§ 186, subd. (e)(1), as
amended.) The People also agree the amendments apply retroactively to defendants.
Thus, we will reverse and remand for a new trial on the gang enhancements as to Luong
and Johnson. Also, if Do, Randall, and Villanueva are retried for crimes with gang
enhancements, the amended version of section 186.22 will apply.
XIII
In a supplemental brief, Luong asks for the case to be remanded pursuant to
People v. Franklin (2016) 63 Cal.4th 261 so he can make a record of information for an
eventual youth offender parole hearing. The People agree. Luong may make a Franklin
record on remand.
XIV
Relying on People v. Duenas (2019) 30 Cal.App.5th 1157, Luong contends the
trial court violated his federal and state rights to due process by imposing some of the
fines and assessments without determining his ability to pay, even though he did not
object to the imposition of the assessments and fines at sentencing. Johnson did not join
in the arguments concerning ability to pay assessments and fines.
Although there is precedent for forfeiture based on failure to object at sentencing
(see, e.g., People v. Pack-Ramirez (2020) 56 Cal.App.5th 851, 859-860), the People
acknowledge that because the matter must be remanded on other issues as to Luong, he
may request a hearing to present evidence on the ability-to-pay issue on remand. Under
the circumstances, we need not address this contention.
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DISPOSITION
As to Do, Randall, and Villanueva, the attempted murder convictions and
accompanying enhancements are reversed and remanded to permit the People to seek
retrial. As to Randall, the conviction for possession of MDMA for sale is reversed and
remanded with directions to enter judgment in favor of Randall on that count.
As to Johnson and Luong, the attempted murder convictions are affirmed. The
gang enhancements are reversed and remanded to permit the People to seek retrial. The
sentences are vacated. The trial court is directed to properly reflect Luong’s original
custody credit, allow Luong to make a record of information for an eventual youth
offender parole hearing, allow Luong to request a hearing on his ability to pay fines and
assessments, exercise its discretion with respect to striking firearm and prior serious
felony conviction enhancements, and conduct further proceedings consistent with this
opinion, including resentencing Johnson and Luong.
/S/
MAURO, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
DUARTE, J.
45