Certified for Partial Publication*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)

C026890
(Super. Ct. No. 95F06726)
C027131

THE PEOPLE,
Plaintiff and Respondent,

v.

TIEN DOC TRAN,
Defendant and Appellant.

-----------------------

THE PEOPLE,
Plaintiff and Respondent,

v.

HUNG TIEN NGUYEN,
Defendant and Appellant.

 

APPEAL from a judgment of the Superior Court of Sacramento County. Janice Hayes, Judge. Affirmed as modified.

Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant in No. C026890.

Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant in No. C027131.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Janis Shank McLean, Stan Cross, and Alison Elle Aleman, Deputy Attorneys General, for Plaintiff and Respondent.

In these consolidated cases, defendants Tien Duc Tran and Hung Tien Nguyen appeal from convictions for two murders (Pen. Code, § 1871) and two assaults with firearms (§ 245, subd. (a)(2)), with enhancements for personal use of firearms (§ 12022.5, subd. (a)), all acts occurring on June 27, 1995. As to Tran, the jury found true a special circumstance that he had committed two murders, one of which was of the first degree. (§ 190.2, subd. (a)(3).) Tran admitted he had a prior serious felony "strike" conviction. (§§ 667, subds. (b)-(i), 1170.12.)

Tran claims evidentiary error, instructional error, insufficiency of the evidence, ineffective assistance of counsel, and sentencing error. Nguyen claims insufficiency of the evidence, instructional and sentencing error.

In the published portion of the opinion, we shall strike (1) the doubling of Tranís sentence of life without possibility of parole under the "three strikes" law, and (2) the section 1202.45 restitution fine as to both defendants. In the unpublished portion of the opinion, we reject defendantsí other contentions of error; we shall therefore otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 1996, defendants were jointly tried by the same jury pursuant to an information charging them with the June 27, 1995, murders (§ 187) of Ri Nguyen2 (count one) and Say Ngo (count two), and assault with a firearm (§ 245, subd. (a)(2)) against Mark Huang (count three) and San Vong (count four), (the assaults constituting an amendment from original charges of attempted murder). The information also alleged each offense was a serious felony (§ 1192.7), each defendant personally used a firearm (§ 12022.5, subd. (a)), each defendant committed multiple murders (§ 190.2, subd. (a)(3) [special circumstance warranting life sentence without parole]), and Tran had a prior conviction for burglary.

The trial evidence painted the following picture:

Victim Say Ngo ran a gambling business out of his home in the "Lemon Hill" apartments. Defendant Tran, in league with others, extorted "protection money" from Ngo. Victim Ri Nguyen also extorted protection money from Ngo, in competition with the group with which Tran was associated.

On the afternoon of June 27, 1995, between 2 p.m. and 3 p.m., Tran (also known as John), 16-year-old codefendant Nguyen (also known as Little Bobby), Nguyenís older brother (also known as Big Bobby), Quoc Cao (also known as Billy), and others, went to the Lemon Hill apartments, where Tran and Big Bobby collected money from Ngo. They then retired to a cafe. A little later, victim Ri Nguyen arrived at victim Ngoís apartment and demanded money, as he had done in the past. Ngo become angry and said "I canít give both side[s] money." Ngo made a telephone call and communicated "he has been here." A piece of paper with Tranís name ("John") and cellular phone number was found in Ngoís possession.

Around the same time Ngo made his call, Tran received a call on a cellular phone (which apparently belonged to his fianceeís family). Tran, Nguyen, and others left the cafe and returned to the Lemon Hill apartments. Billy waited in the car. Tran, Nguyen and Big Bobby, all of whom were armed with guns, went into the apartment complex. Ri Nguyen, Say Ngo and others were on the stairway. Defendants and Big Bobby approached, some words were exchanged, defendants and Big Bobby pulled out their guns and opened fire on Ri Nguyen, who died of multiple gun shot wounds. The other men on the stairway scattered, but three of them were hit -- Say Ngo sustained a fatal gunshot wound; Mark Huang took a bullet in the back but survived; and San Vong was hit in the thigh but survived. There was no evidence that anyone else had or fired a gun, other than defendants and their companion.3

The shootings occurred shortly after 5 p.m. The first officer arrived on the scene at 5:15 p.m.

Tran presented an alibi defense. His former fiancee, Joy Lee, testified she spent the day with Tran, running errands, and he was home playing video games with her younger brother and nephews at the time of the shooting. One nephew testified Tran was with him playing video games. Other Lee family members testified to seeing Tran in the house at various times during the day, but not at the time of the shooting. Tran testified consistent with Joy Leeís testimony. Tran testified he sometimes drove Big Bobby to the Lemon Hill apartments. Tran denied knowing victim Say Ngo and denied having given his phone number to Ngo. Tran tried to explain the phone records by saying he received a phone call from Big Bobby who, pursuant to attorney advice, was thinking of suing over a car accident which occurred several days before the shootings, when Big Bobby was a passenger in a car driven by Tran.4 Evidence of Tranís former membership in a gang in Orange County came out at trial, as set forth in our discussion.

Nguyen testified he accompanied Tran to the scene (thus undermining Tranís alibi defense), but Nguyen disclaimed knowledge of any plan to shoot Ri Nguyen. Nguyen said he was behind Tran and Big Bobby and did not hear what was said. Nguyen said he fired his gun because he heard five shots and thought someone was shooting at his brother and Tran. He claimed he fired his gun to protect them.

The jury found Tran guilty of (1) first degree murder of Ri Nguyen, (2) second degree murder of Say Ngo, (3) assault with a firearm on Mark Huang, and (4) assault with a firearm on San Vong. As to each count, the jury found Tran personally used a firearm within the meaning of section 12022.5, subdivision (a). The jury also found true the special circumstance allegation that Tran committed at least one murder in the first degree and an additional murder in the first or second degree, within the meaning of section 190.2, subdivision (a)(3). After the verdicts, Tran admitted a prior serious felony conviction.

The jury found Nguyen not guilty of first degree murder of Ri Nguyen and found not true the special circumstance of at least one first degree murder. The jury found Nguyen guilty of (1) second degree murder of Ri Nguyen, (2) second degree murder of Say Ngo, (3) assault with a firearm on Mark Huang, and (4) assault with a firearm on San Vong. As to each count, the jury found Nguyen personally used a firearm within the meaning of section 12022.5, subdivision (a).

The trial court sentenced Tran to a term of life without possibility of parole on count one and doubled it pursuant to the three strikes law. The court also imposed as consecutive sentences (a) 15 years to life, doubled, for count two; (b) 6 years for count three; (c) 2 years for count four; and (d) 13 years and 8 months in enhancements for the firearm use. The aggregate determinate sentence imposed was for 21 years and 8 months, followed by an indeterminate sentence of 30 years to life, followed by life without possibility of parole. The court also ordered Tran to pay a $10,000 restitution fine (§§ 1202.4, 2085.5) and imposed an additional $10,000 restitution fine, suspended unless and until there was a parole violation (§ 1202.45). The court ordered both defendants jointly and severally to make victim restitution in the amount of $6,800.

The trial court sentenced Nguyen to two consecutive indeterminate terms of 15-years-to-life each, for the murders, enhanced by two consecutive 4-year enhancements for the firearm use; plus a 2-year term for the count three assault, enhanced by a 4-year term for firearm use; plus a one-third midterm of 1 year for count four, enhanced by a one-third mid-term of 1 year and 8 months for firearm use. The aggregate sentence imposed on Nguyen was 30 years to life, plus 16 years and 8 months. The court also imposed restitution fines on Nguyen: Victim restitution of $6,800 (jointly and severally with Tran), a $10,000 restitution fine (§§ 1202.4, 2085.5), and a $10,000 restitution fine suspended unless and until Nguyen violated parole (§ 1202.45).

DISCUSSION

I. Tranís Contentions (Other Than Contentions of Sentencing Error)

A. Claim Of Evidentiary Error

Tran contends gang and bad character evidence was improperly admitted and prejudically denied him the right to a fair trial. We disagree.

1. Facts

Tranís former fiancee, Joy Lee, testified for the defense and said she was shocked to learn of Tranís arrest. The prosecutor made a relevance objection. At a side bench discussion, defense counsel said state of mind was relevant because he expected the prosecution to try to impeach Leeís alibi testimony with her prior statements to a detective shortly after she learned of the arrest (which omitted details provided in Joy Leeís testimony). The trial court sustained the objection but indicated the matter might later become relevant. Upon resumption of her testimony, Joy Lee admitted she never mentioned to the detective anything about her and Tran running errands or Tran playing video games but said she was in shock at Tranís arrest and believed it was a mistake.

Before beginning recross-examination, counsel for defendant Nguyen asked for a side bench conference, at which he said: "I think [Joy Leeís] repeated professing of shock and surprise that this happened is back-handed character evidence. She told Detective McClatchy that she knew of Johnís [Tranís] affiliation with a group called the Orange Boys in southern California, that the tattoo that he burned off of his shoulders was a gang tattoo from that organization, and that he left southern California because he was the subject of an assassination attempt which resulted in the killing of his younger brother. [¶] The fact that she knew that he had been involved in other shooting incidents should have allayed her surprise and shock, I think. And I think I am entitled to go into it." The prosecutor concurred.

The trial court noted "the record is now replete with statements from her about how shocked and surprised she was that he could have been accused of this. And you, in your opening statement, created an issue about why he came to Sacramento by saying that he came here to start a new life or make a better life. Certainly not an inference that he was escaping gang assassination attempts." The court heard Lee testify, outside the presence of the jury, that she knew about Tranís former gang affiliation but had no specific knowledge of any violence and was surprised by the present charges because Tran had changed a lot since he became involved with her. The trial court ruled: "It strikes me that this potential testimony has very little probative value and great possibility for prejudicial effect, at least as the evidence now stands. I am not expressing an opinion about what might occur down the line in this case depending on how the defense case develops further, but based on the current state of the evidence I find the prejudicial effect outweighs the probative value and I wonít permit the testimony." The court said that upon review of the opening statement, it found no inconsistency warranting admission of the evidence.

Upon resumption of the proceedings, Tranís counsel, in further redirect examination of Lee, elicited that Tran never physically abused her. Tranís counsel then asked if Tran did anything else (besides holding down jobs) which Lee perceived as an attempt to improve his life. The prosecutor objected to the testimony as vague, calling for speculation. At a side bench conference, the following took place:

"THE COURT: After the hearing we have just had, I cannot imagine why you want to go where youíre going. I canít even fathom why you would want to open these doors. We have just had a discussion, I ruled based on the state of the evidence at the time that the prejudicial effect outweighed the probative value and now you are changing that equation.

"[Tranís counsel]: What I wanted to get from her, Judge, is whether or not he attempted to go to college. . . .

"[Nguyenís counsel]: Itís character evidence.

"THE COURT: It is, itís plain and simple character evidence . . . ."

Tranís counsel indicated he would withdraw the question about college. Nguyenís counsel argued the testimony about Tranís lack of violence toward Lee was also character evidence. Tranís attorney said he just asked her about violence in the time she knew Tran, and it related only to her, not whether he was violent outside of the relationship with her.

The trial court ruled: "Iím sorry, . . . I think you have left me with no choice. . . . I believe through the questioning of this witness you have created an inference of good character which -- as to which this witness has relevant evidence to the contrary. And although I had hoped to avoid this, I tried to make my ruling clear that it was a ruling that would be in flux depending on what the evidence produced, right after I say that we come into court and you produce even more blatant evidence of character. . . . [T]he previous ruling is reversed. [Nguyenís counsel] may go into the knowledge of this witness with respect to his activities in Los Angeles prior to coming up here."

Nguyenís counsel then elicited from Lee the following:

"Q. Has there been a time in [Tranís] past that you know of when he was associated with a group that sometimes engaged in violence?

"[Objection to calling for speculation overruled.]

"THE WITNESS: No.

"Q. . . . Who are the Orange Boys?

"A. I donít know.

"Q. Did Mr. Tran ever tell you that he was associated with a group named the Orange Boys?

"A. Yes.

"Q. All right.

"And what do you understand that group to be?

"A. Some kind of gang down south.

"Q. All right.

"Was that a gang Mr. Tran told you that he was a part of at one point?

"A. Yes.

"Q. Did that group sometimes engage in illegal or criminal activity, according to what Mr. Tran has told you?

"[Objection overruled.]

"THE WITNESS: Not that I know of.

"Q. . . . Didnít they sometimes at least engage in auto thefts?

"A. They probably have.

"Q. Did Mr. Tran ever indicate to you that that was the case?

"A. In his case. [sic]

"Q. All right.

"The tattoos on Mr. Tranís knees that you discussed earlier, are those related to the Orange Boys?

"A. They probably are.

"Q. Okay.

"Is your opinion that this is all a surprise and a shock Mr. Tran would be charged in a case like this in any way changed by your knowledge of Mr. Tranís past?

"A. What do you mean by that? I donít understand.

"Q. Knowing what you know about Mr. Tranís past, including the association with this group in southern California, do you still have the opinion that it is shocking and surprising that he would be charged in a case like this in Sacramento?

"A. Yes, yes."

In his own testimony, Tran asserted he was changed by the death of his brother, who was shot in Orange County after stealing a stereo from a gang member.

2. Analysis

Tran contends gang and bad character evidence was improperly admitted. We disagree.

It is settled that evidence of gang membership, though it may be inflammatory, is admissible evidence on a number of issues in a criminal trial. (People v. Harris (1985) 175 Cal.App.3d 944, 957; see also, e.g., People v. Woods (1991) 226 Cal.App.3d 1037, 1054.) A trial courtís exercise of discretion in admitting evidence of gang membership and activity will not be disturbed on appeal where it was reasonable under the circumstances. (People v. Funes (1994) 23 Cal.App.4th 1506, 1519.)

Tran cites Evidence Code section 1101, that evidence of criminal disposition is inadmissible to prove conduct on a specific occasion. However, in this case, defendant presented affirmative testimony concerning his good character. When a defendant presents opinion or reputation evidence on his own behalf, the prosecutor may present like evidence to rebut the defendantís evidence. (Evid. Code, § 1102, subd. (b); People v. Lankford (1989) 210 Cal.App.3d 227, 240 [where defendant offered evidence affecting his credibility and good character, prosecution could impeach with relevant specific instances of his conduct].) The admission of rebuttal evidence is a matter for the sound discretion of the trial court. (People v. Raley (1992) 2 Cal.4th 870, 912.)

Here, there was no abuse of discretion. Tran presented his former fianceeís testimony that she was surprised about his involvement in the Lemon Hill shooting, that he was a non-violent person who had obtained jobs to better himself. Tran thus placed his character in issue at trial and opened the door to rebuttal evidence.

Tran claims bad character evidence should not exceed the type or temporal scope of the direct evidence concerning character. (People v. Ramirez (1990) 50 Cal.3d 1158, 1191-1193.) He argues testimony about events prior to his relocation to Sacramento did nothing to rebut Joy Leeís testimony. However, that the gang evidence related to a time preceding Tranís move to Sacramento does not support exclusion of the evidence. Thus, Lee testified in November 1996 that she had known Tran for two years, which would mean she met him in late 1994. Tran testified he moved to Sacramento in January or February 1994. The crimes that are the subject of this prosecution took place in June 1995. We conclude defendant fails to show the evidence was so remote as to require its exclusion.

Tran suggests the evidence should not have been admitted, because the only character evidence he elicited from Lee concerned his treatment of her, and the gang evidence did not go to his treatment of Lee. We disagree. The gang evidence was proper rebuttal evidence. In the case cited by Tran, People v. Ramirez, supra, 50 Cal.3d 1158, the defendantís mother testified during the penalty phase of a capital case to adverse circumstances that the defendant faced from his birth until his fatherís death 14 years later, including the fatherís alcoholism and violence toward the mother, economic travails, childhood illnesses, etc. (Id. at p. 1193.) The trial court allowed the prosecution to elicit on cross-examination that after the fatherís death, the defendant became out of control, was in and out of juvenile court, was arrested for burglary, and used heroin and other drugs. (Id. at p. 1191.) The Supreme Court found error, though harmless, because the mother did not testify generally to the defendantís good character or general reputation for lawful behavior. (Id. at p. 1193.) Here, in contrast, Joy Leeís testimony clearly did attempt to convey to the jury that it was not in Tranís character to commit these offenses.

Tran argues the gang evidence should have been excluded because the witness said it had no effect on her. Tran misses the point that the evidence was relevant for that precise reason -- to rebut the good character evidence injected through her testimony.

Tran argues that even if the evidence was relevant, it should have been excluded as more prejudicial than probative under Evidence Code section 352. However, we see no abuse of discretion in the trial courtís thoughtful analysis of the matter. Our conclusion is not altered by Tranís argument that the evidence was particularly prejudicial because codefendant Nguyen sought to use his own youth to mitigate responsibility.

Tran argues the trial court should have given a limiting instruction to the jury, but he does not suggest what the instruction should have said, and he does not show he requested one in the trial court.

In a footnote, Tran complains Nguyenís counsel asked Joy Lee whether she was aware of Tran being previously associated with a gang that sometimes engaged in violence, though she already denied any such knowledge in the hearing outside the juryís presence. However, the only objection Tran made in the trial court was that the question called for speculation. We need not consider the matter further.

We conclude the trial court did not err in admitting the gang and bad character evidence.

B. Claim Of Ineffective Assistance of Counsel

Tran complains his trial counsel rendered ineffective assistance of counsel by (1) opening Tran up to gang and bad character evidence, and (2) eliciting other prejudicial evidence. We see no basis for reversal.

"To establish constitutionally inadequate representation, a defendant must show that (1) counselís representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counselís representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counselís failings, the result would have been more favorable to the defendant. [Citations.] When a defendant on appeal makes a claim that his counsel was ineffective, the appellate court must consider whether the record contains any explanation for the challenged aspects of the representation provided by counsel. ĎIf the record sheds no light on why counsel acted or failed to act in the manner challenged, "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," [citation], the contention must be rejected.í [Citations.]" (People v. Mitcham (1992) 1 Cal.4th 1027, 1057-1058.) A reviewing court generally will not second-guess trial counsel in matters of trial tactics and strategy. (Id. at p. 1059.)

With respect to opening Tran up to gang and bad character evidence, Tran argues his counsel attempted to explain himself -- he wanted to show Tran planned to attend college -- and this explanation assertedly shows counselís incompetence, because college had no real relevance, and the court had warned counsel about the consequences of such evidence. However, the gang and bad character evidence came in not simply because of the question concerning college (which counsel indicated he would withdraw) but because Lee had already testified Tran was non-violent. Reasonably competent counsel could have determined it was important for the jury to hear favorable testimony that Tran was not violent since moving to Sacramento and settling down with Joy Lee, and that the unfavorable evidence could be minimized on the basis that it was in the past.

We disagree with Tran that ineffective assistance of counsel is established by counselís asserted failure to heed the judgeís warning. We also reject Tranís implication that counsel was ineffective for abandoning the question about college.

With respect to other evidence, Tran complains his attorney did not object to hearsay testimony of Sam Ngo (one of victim Ngoís brothers). Sam Ngo, who was not present at the shooting, testified that another person ("Phuc"), who was present during the shooting, told Sam Ngo that Tran was involved in the shooting, and Sam Ngo gave Tranís name to the police. The trial court called a sidebar, concerned about what appeared to be blatant hearsay coming in with no objection. The prosecutor said he expected Tran to raise the issue in cross-examination, to question Ngoís basis for giving Tranís name to the police. Tranís counsel said "I have my reasons for not objecting because I have spoken to this man previously and what he is saying doesnít jive [sic] with what he told me. . . ." Tranís counsel affirmed he had made a tactical decision not to object and further made a tactical decision not to request a limiting instruction.

On cross-examination, Tranís attorney elicited that all the witness learned from Phuc was the name "John," and that the witness learned Tranís identity from someone else, Tranís brother-in-law Eric Le who disliked Tran (according to the witness).5 Thus, defense counsel sought to undermine the person who brought Tran to the attention of the police. We cannot say that counsel was ineffective; we will not second-guess his trial tactics and strategy. (People v. Mitcham, supra, 1 Cal.4th at p. 1059.)

Tran contends the apparent purpose was to bring out the fact that Sam Ngo tried to talk Eric Le into the notion that Tran was one of the shooters, which Eric Le assertedly disputed and which assertedly had no real value. However, it appears counsel was seeking to attack the basis for Sam Ngoís disclosure of Tranís name to the police as a person involved in the shooting.

We conclude that there are reasonable tactical reasons underlying the errors of counsel that Tran asserts. However, assuming for the sake of argument that the performance of Tranís counsel was deficient in the ways asserted by Tran, we would still refuse to find that counsel was ineffective, because, on this record, it is not probable that Tran would have fared better in the absence of counselís failings.

We conclude Tran fails to establish that he was deprived of effective assistance of counsel.

C. Jury Instruction Re: Accomplice Testimony

Tran contends the jury instructions on how to view accomplice testimony should have included codefendant Nguyenís testimony to the extent it sought to incriminate Tran. We see no basis for reversal.

Nguyen incriminated Tran by placing Tran at the scene of the crimes, undermining Tranís alibi defense. Nguyen claimed he fired his own gun only because he heard shots and thought he was firing to defend his companions.

At one point during the various discussions between court and counsel concerning jury instructions, the court commented that the accomplice instructions applied only to witness Quoc Cao. The prosecutor said "the concern of the People is use notes under [CALJIC No.] 3.18, which seems to indicate that if one of the defendants testifies and implicates the other, that you may have to make a modification and that portion of his testimony is to be viewed with distrust. . . ." Nguyenís attorney objected to the court instructing the jury to view with distrust anything that Nguyen said on the witness stand. Tranís attorney said Nguyen was an accomplice, and the jury should be instructed to view with distrust that portion of the accompliceís testimony which tended to incriminate a codefendant. After further consideration, the trial court concluded: "Based on [the] holding of People [v.] Fowler and the analysis contained in that case, I do not think that itís appropriate to give accomplice instructions instructing a jury to distrust any portion of the testimony of a testifying co-defendant under the circumstances of this case. [¶] And for that reason I have carefully limited the accomplice instructions to apply only to Quoc Cao. I have indicated on each of the following accomplice instructions that it does not apply to a defendant on trial. . . ."

The trial court gave the standard jury instructions on accomplices and viewing accomplice testimony with distrust, and the court further instructed, with respect to each accomplice instruction: "A defendant on trial cannot be an accomplice within the meaning of this instruction. This instruction applies to the testimony of Quoc Cao [the driver, Billy]" (who was identified as an accomplice as a matter of law in the jury instructions).

We first dispose of the Peopleís argument that Tran has waived this issue by failing to raise it in the trial court. The People assert the record does not contain any express objection by Tran. However, as indicated, the record does reflect that the matter was considered and decided by the trial court. Tranís attorney specifically told the trial court that the jury should be instructed to view Nguyenís testimony with distrust insofar as it tended to incriminate Tran. This was an adequate objection to the instruction as given. We thus conclude the matter is properly raised on appeal.

The trial court relied on People v. Fowler (1987) 196 Cal.App.3d 79, wherein we held the trial court committed error, though harmless, in instructing the jury to view accomplice testimony with distrust, since each defendant testified on his own behalf and the instruction thus prejudiced them in presenting their defenses. (Id. at pp. 85-88.)

However, the California Supreme Court has more recently held in People v. Alvarez (1996) 14 Cal.4th 155, that where two codefendants each testified on his or her own behalf, denied guilt, and incriminated the other, it was not error for the trial court to instruct: "ĎThe testimony of an accomplice which tends to incriminate a co-defendant ought to be viewed with distrust. . . .í" (Id. at p. 217.) The defendant there complained of the instruction insofar as it burdened him as the incriminating accomplice-defendant. (Id. at p. 218.) In concluding there was no instructional error, the Supreme Court held "when . . . a defendant testifies on his own behalf, denies guilt,[6] and incriminates his codefendant, a trial court has authority to instruct the jury that his testimony should be viewed with distrust as that of an accomplice." (Ibid.) "An accomplice who testifies against a defendant deserves Ďclose scrutiny.í [Citation.] For he has the motive, opportunity, and means to attempt to help himself at the otherís expense. [Citations.] That remains true when the accomplice who testifies against a defendant is himself a defendant." (Ibid.) "If an accomplice who testifies against a defendant deserves Ďclose scrutinyí -- and he does -- he deserves such scrutiny even if he is himself a defendant. Like any other accomplice, an accomplice-defendant has the motive, opportunity, and means to try to help himself at the otherís expense. [¶] It is true that the testimony of a defendant ought not to be viewed with distrust simply because it is given by a defendant. Indeed, to such effect was the superior courtís instruction on pity and prejudice.[7] [Citation.] [¶] It is also true, however, that the testimony of a defendant ought not to be viewed without distrust simply because it is given by a defendant. Under the law, a defendant is surely equal to all other witnesses. But, under that same law, he is superior to none." (People v. Alvarez, supra, 14 Cal.4th at pp. 218-219, fn. omitted.)

Here, the People argue Alvarez merely allows the instruction but does not require it. However, it appears the trial court in this case declined to include the codefendant in the accomplice instruction because the court felt it was precluded from doing so by case law of this court. We note the Supreme Court decided Alvarez after the jury returned its verdict in this case.

We shall assume for the sake of argument that the trial court should instruct the jury that testimony of an accomplice-defendant should be viewed with distrust to the extent it tends to incriminate the defendant, even in cases such as this, where Nguyen did not entirely shift blame from himself to Tran.8 Any error in this case was harmless, because it is not reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.9 (People v. Fowler, supra, 196 Cal.App.3d at p. 88.)

Thus, there was strong evidence of Tranís participation from other sources. Other eyewitnesses, independent of Nguyen or the driver, Quoc Cao (Billy), identified Tran as one of the gunmen. For example, eyewitness Ha Trinh observed Tran shoot a gun at victim Ri Nguyen. While eyewitness Phu Ngo refused to identify Tran in court, he had previously identified Tran and acknowledged in court having told the prosecutor he (Ngo) was afraid to identify anyone in court.10 Additionally, Tranís name and cell phone number were found in victim Say Ngoís possession, though Tran claimed not to know the man. Phone records bore out the evidence that a call was placed to the cell phone at the time Ngo made his call.

Tran argues it is reasonably probable the jury was uncertain of guilt in the face of conflicting testimony and gave special credence to Nguyen, who seemingly admitted his own guilt. Tran claims the prosecutionís eyewitness identifications were weak, eyewitness identification is inherently suspect, his alibi witnesses were strong, and prejudice must be assessed by examination of the entire record, not just evidence favoring the judgment. We have examined each of the numerous points raised by Tran. We conclude any error in the accomplice instructions was harmless.

D. Aider/Abettor And Natural/Probable Consequences

Tran contends the second degree murder and assault convictions must be reversed because (1) under the instructions given the evidence was insufficient to convict him as an aider/abettor, or (2) assuming the evidence was sufficient under a natural and probable consequences theory, the jury was not adequately instructed on the natural and probable consequences doctrine. We see no basis for reversal.

1. Sufficiency Of Evidence

On appeal, Tran says there was no evidence that bullets from his gun entered the bodies of the second degree murder victim (Say Ngo) or the two assault victims (Huang and Vong). Tran asserts there was no evidence that he shared in any intent to injure those victims, and such specific intent to aid the crimes of the person(s) who personally inflicted those injuries is necessary under People v. Beeman (1984) 35 Cal.3d 547.

As noted by Tran, the prosecutor expressly withdrew its request for jury instruction on the natural and probable consequences theory. The trial court asked Tranís counsel and Nguyenís counsel if they had any objection to the withdrawal of that instruction, and both counsel responded "No."

The prosecutionís theory was that the three gunmen acted together and opened fire in a confined space with several persons present. The prosecutor argued to the jury: "Hereís what we think the evidence shows. We think the evidence shows in this case that they went there with the intent to kill Ri Nguyen. Obviously, Ri Nguyen was the one taking their business away from them. Ri Nguyen was the one that had been collecting money from Say Ngo. They would like to have Ri Nguyen out of the way. Plus they would like to send a message like I was talking about to the community about who should collect now, instill some fear into the people. [¶] So they went there intending to basically take out Ri Nguyen, but they probably didnít go there with the intent to kill Say Ngo. Why would they kill Say Ngo, if you think about it, since he is the one they wanted to collect money from in the first place? [¶] . . . [T]here is no evidence that they filled up Say Ngo with bullets like they did Ri Nguyen. [¶] So it appears to us that what happened is, from all three gunmen, is they all three went there trying to shoot the man on the stairwell, who we know was Ri Nguyen, and in the hail of gunfire one bullet goes probably through Ri Nguyen and strikes Say Ngo who was there, they were all standing in the crowd. And Say Ngo, unfortunately, instead of wounding him he dies from that result. [¶] So in this case you could say, well, how has the D.A. shown us all three of these guys wanted to kill Say Ngo? Well, we donít have to. The bottom line is these three guys engaged in dangerous conduct, shooting at Ri Nguyen, shooting at a crowd. There is a crowd of people, they knew the risks, anybody would know if you shoot a gun towards people there is a great likelihood someone else will die. And thatís what happened." Similarly, with respect to the assault charges on the victims who survived, the prosecutor argued to the jury that those victims were caught in the "hail of . . . bullets flying from these three gunmen."

The jury was instructed: "A person aids and abets the commission of a crime when he or she, [¶] One, with knowledge of the unlawful purpose of the perpetrator and [¶] Two, with the intent or purpose of committing, encouraging, or facilitating the commission of the crime, by act or advice aids, promotes, encourages or instigates the commission of the crime. . . ."

The jury was also instructed that second degree murder is the unlawful killing of a human being when the killing resulted from an intentional act, "[t]he natural consequences of the act are dangerous to human life," and the act was "deliberately performed with knowledge of the danger to, and with conscious disregard for, human life." The jury was told it was not necessary to establish that Tran intended his actions to result in the death of Say Ngo. With respect to assault, the jury was told assault occurred when a person willfully and unlawfully committed an act "that by its nature would probably and directly result in the application of physical force on another person," and the actor had the present ability to apply physical force.

We believe there was ample evidence for the jury to find defendant guilty under these instructions. There was evidence that Tran and his companions went to the Lemon Hill apartments carrying guns, walked directly up to the men on the stairway and opened fire. That only one of the men on the stairway may have been the target victim does not diminish the culpability of all three actors for the offenses committed against all four victims.

"[I]t would seem obvious the intentional firing of a gun at the victim at close range is an act dangerous to human life and presents a high probability of death" or injury. (People v. Woods (1991) 226 Cal.App.3d 1037, 1048 [finding sufficient evidence where defendant was convicted of second degree murder on an aiding and abetting theory].)

We conclude the evidence was sufficient, under the instructions given, to support the judgment, in that Tran, with knowledge of his groupís unlawful purpose to open fire in small quarters with several people present, and with intent to commit, encourage or facilitate the criminal conduct, aided by his active participation.

Insofar as Tran suggests the jury was required to find he shared a specific intent to injure the victims in counts two, three and four, we see no basis for reversal. Tran argues his gun did not inflict the injuries sustained in counts two, three and four, and "there is no evidence that he shared in any intent to injure those victims. An aider and abettor must have the specific intent to aid the principalís crime. (People v. Beeman (1984) 35 Cal.3d 547, 271 [sic].) It is therefore respectfully submitted that the evidence against the appellant as to counts two, three, and/or four is insufficient to support the judgment on those counts on the theories upon which the district attorney elected to proceed."

However, the prosecutionís theory did not depend on anyone having the intent to injure the victims in counts two, three or four. We see nothing in the instructions (or in Beeman) that would require in this case evidence that an aider and abettor intended to injure the victims in counts two, three and four. "It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which Beeman holds must be found by the jury." (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5.)

If Tran means to insure in some fashion that the jury was misinstructed on intent, he has waived any such argument by failing to develop and brief it adequately as a discrete contention. (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19.) We nevertheless note the instructions given to the jury tracked the Beeman holding, recently reaffirmed in People v. Prettyman (1996) 14 Cal.4th 248, that an aider and abettor is a person who, acting with knowledge of the unlawful purpose of the perpetrator, and the intent or purpose of committing, encouraging, or facilitating the commission of the offense, by act or advice aids, promotes, encourages or instigates, the commission of the crime. (People v. Prettyman, supra, 14 Cal.4th at p. 259, citing People v. Beeman, supra, 35 Cal.3d 547.)

We conclude substantial evidence supports the judgment under the instructions given to the jury.11

2. Claim Of Failure To Instruct

Tran contends that, assuming the prosecutor was not bound by the election to drop the natural and probable consequences theory and that the evidence was sufficient on a natural and probable consequences theory, the instructions were inadequate to cover that theory. Tranís point is unclear.

It appears Tran is arguing that this case was or should have been prosecuted under a natural and probable consequence theory. He cites People v. Prettyman, supra, 14 Cal.4th 248, for the principle that the trier of fact must find the offense committed by the defendantís confederate was a natural and probable consequence of the target crime that the defendant aided and abetted. (Id. at p. 262.) However, Prettyman said that was so "when a particular aiding and abetting case triggers application of the Ďnatural and probable consequencesí doctrine[.]" (Ibid.) Prettyman also said a sua sponte duty to instruct on the natural and probable consequences doctrine "arises only when the prosecution has elected to rely on the Ďnatural and probable consequencesí theory of accomplice liability . . . ." (Id. at p. 269, original italics.)

Here, the jury was not instructed on the natural and probable consequences doctrine, because the prosecutor elected not to proceed on that theory, with no objection by Tran in the trial court. Under these circumstances, we question whether Tran should be allowed to raise the matter on appeal, having acquiesced in the trial court. In any event, even assuming for the sake of argument that there was instructional error in the omission of jury instruction on the natural and probable consequences doctrine, we see no basis for reversal. Thus, People v. Escobar (1996) 48 Cal.App.4th 999, 1021, said any error in omission of instructions on the natural and probable consequence doctrine was harmless because no reasonable jury could have concluded that murder was not a natural and probable consequence of kidnapping under the circumstances of the case. (Id. at p. 1021, citing People v. Cox (1991) 53 Cal.3d 618, 669 [even if defendant meant only to encourage and facilitate assault with deadly weapons, no reasonable jury would have concluded homicides were not a natural and probable consequence of such violence]; see also, People v. Williams (1997) 16 Cal.4th 635, 673-675 [applying Cox to find absence of prejudice]; cf. People v. Cox, supra, 53 Cal.3d at p. 669, fn. 16 [noting Beeman error (failure to instruct on aider/abettor intent) is subject to harmless-beyond-a-reasonable-doubt standard].)

Here, any error was harmless, because no reasonable jury would have concluded the shootings of the victims in counts two, three and four were not the natural and probable consequence of the shooting of Ri Nguyen as he stood in a group with the other victims.

Tranís case is not assisted by his citation to People v. Kobrin (1995) 11 Cal.4th 416, which held materiality constitutes an element of the crime of perjury for the jury to decide, and omission of such instruction under the circumstances of that case was not harmless, under the Chapman standard.

We conclude there was no reversible instructional error with respect to aiding and abetting.

E. Sufficiency Of The Evidence -- Firearm Use

Tran contends the evidence was insufficient to support the juryís findings that he personally used a firearm, within the meaning of section 12022.5, subdivision (a),12 on counts two, three and four. We conclude Tranís position is without merit.

Although firearm use within the meaning of section 12022.5 connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means of display of a firearm in aiding the commission of a felony. (People v. Chambers (1972) 7 Cal.3d 666, 672.) Section 12022.5 is intended to distinguish those who are willing to use firearms while committing felonies from those who are not, and to increase the penalty for the former. (People v. Walker (1988) 47 Cal.3d 605, 635.) People v. Johnson (1974) 38 Cal.App.3d 1, 12, said a confederate, who himself is armed with a firearm and points the firearm at several of the robbery victims and thereby aids and abets in a robbery in which another victim was shot and killed by another principal, uses a gun within the meaning of section 12022.5. Johnson said: "Section 12022.5 penalizes those who use firearms in the commission of the listed crimes. A weapon is used within the meaning of section 12022.5 not only when it is fired, but when it is pointed at a victim to enforce a demand. [Citation.] A person commits a crime when he aids and abets it. (. . . § 31.) Johnson and Kelly committed three joint crimes in the liquor store holdup, including the murder of [the store owner]. Even though Kelly did not personally shoot [the owner], he used a pistol in his commission of [the ownerís] murder. He is liable for the added penalty with reference to the murder . . . , even though he did not do the actual shooting." (People v. Johnson, supra, 38 Cal.App.3d at p. 12, original italics.) Johnson was cited with approval in People v. Walker (1976) 18 Cal.3d 232, 239, footnote 3.

Here, defendant and his cohorts together committed four crimes at the stairway of the Lemon Hill apartments. There was ample evidence that Tran personally used a gun in his commission (either as perpetrator or aider/abettor) of the four offenses.

Tran argues there is no evidence he used his firearm in a manner where he personally by means of such use facilitated any crime other than shooting at Ri Nguyen. According to Tran, incidental effects of that shooting lack the nexus of personal use, and the fact that a coperpetrator happens to use a gun in a divisible act unintended by the defendant cannot in and of itself create such a "personal nexus in the absence of evidence the defendant personally obtained separate culpability beyond aiding and abetting the person who did use the gun in that act."

Tranís point eludes us, in light of the foregoing authorities. His sentence is not being enhanced because of his cohortsí use of guns. His sentence is being enhanced for his own use of a gun.

Tran claims "Only the direct perpetrator rather than an aider and abettor can personally use a firearm." This does not make sense. He cites People v. Jackson (1996) 13 Cal.4th 1164, which merely said defense counselís asserted incompetence in failing to argue to the jury that the defendant withdrew as an aider and abettor of a murder plot was not prejudicial, because the jury found the defendant to be the direct perpetrator, not a mere aider and abettor, by finding he personally used the firearm within the meaning of the enhancement statute, section 12022.5. (Id. at p. 1221.) There was only one gun in that case.

Tran cites People v. Walker, supra, 18 Cal.3d at p. 241-242, for the proposition that personal use is not vicarious use separately punishable for every act of every coperpetrator. However, Walker merely indicated that an unarmed aider/abettor is not subject to a section 12022.5 enhancement for the perpetratorís use of a firearm. That is not the case here, where Tran and Nguyen both personally used a firearm.

We conclude the evidence was sufficient to support the finding of personal use of a firearm on counts two, three and four.

F. Jury Instruction Re: Special Circumstance

Tran argues the jury instruction on the multiple-murder special circumstance (§ 190.2, subd. (a)(3))13 incorrectly permitted the jury to find the special circumstance true on an aider and abettor theory without an actual intent to kill the victim of the first degree murder. We disagree.14

Tran acknowledges the multiple-murder special circumstance may be found where one of the two murders was based on implied malice. (People v. Dennis (1998) 17 Cal.4th 468, 516.) Intent to kill with respect to at least one murder must be shown where the defendant was an aider/abettor rather than the actual killer. (Id. at p. 517, fn. 10 [dictum].)

Tran isolates one part of the jury instruction, CALJIC No. 8.80.1,15 that the jury must be satisfied the "defendant with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of a murder in the first or second degree." Tran complains of the disjunctive "or second degree" at the end of the sentence. He argues the use of the disjunctive permitted the special circumstance to be found "even if no intent to kill existed as to first degree aiding and abetting."

However, we consider the instructions as a whole. (People v. Haskett (1990) 52 Cal.3d 210, 235; People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1294.) The jurors were instructed with the entire CALJIC NO. 8.80.1 (fn. 15, ante), that if on the one hand they found a defendant actually killed the victims, they need not find intent to kill in order to apply the special circumstance to that defendant; on the other hand, if they did not find the defendant was the actual killer, they must find he assisted with intent to kill. The jury was also instructed with CALJIC No. 8.81.3, that "To find the special circumstance, referred to in these instructions as multiple murder convictions, is true, it must be proved: [¶] A defendant has in this case been convicted of at least one crime of murder of the first degree and one or more crimes of murder of the first or second degree."

Thus, the jurors were told of their task to find intent to kill if they did not find Tran to be the actual killer.

Since the instruction requires the jury to find intent to kill, Tranís argument supposes that the jury may have found intent to kill with respect to the second degree murder victim (Say Ngo) but not the first degree murder victim (Ri Nguyen). It is inconceivable to us that the jury would find Tran aided and abetted a second degree murder with intent to kill, but not the first degree murder. No evidence or argument pointed the jury in that direction.

Tran also argues about who held which gun and whether, under the guilt instructions, the jurors could have found Tran guilty of the first degree murder of Ri Nguyen on an aiding and abetting theory without finding he had an intent to kill. However, under this heading Tran is challenging a special circumstance instruction, and that instruction expressly required the jury to find intent to kill for aiders/abettors.

From the authorities cited, it appears Tranís position is based on an assumption that the jury may have found Tran aided and abetted some lesser offense (like "intimidation" of Ri Nguyen) but was being held liable because the killing was the natural and probable consequence of the target offense. Thus, Tran quotes People v. Croy (1985) 41 Cal.3d 1, 12, footnote 5, as follows: [A] defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which [People v.] Beeman [(1984) 35 Cal.3d 547] holds must be found by the jury." (People v. Croy, supra, 41 Cal.3d at p. 12, fn. 5.)

Here, however, the special circumstance instruction required the jury to find intent to kill for aiders/abettors. Moreover, the prosecutor eschewed the natural and probable consequence theory, both defendantsí counsel said they had no objection, and the jury received no instruction on it. The prosecutionís theory of the case was that Tran was at the scene with an intent to kill Ri Nguyen. Aiding/abetting liability was necessary because of the uncertainty of which gunman fired the fatal bullet. Indeed, earlier in his brief when Tran attacked the lack of natural-and-probable-consequence instruction with respect to the second degree murder and assault convictions, Tran specified his argument did not encompass the first degree murder conviction of Ri Nguyen, because "[t]he evidence was everyone was aiming at Ri Nguyen, so that would permit an inference of direct aiding and abetting by all three of the shooters . . . ."

Additionally, Tran fails to point to any evidence supporting even a supposition that the jury may have found he merely intended to intimidate Ri Nguyen. Tran simply asserts, without citation of evidence, that the jury may have found that Big Bobby was the major player in the extortion endeavor and harbored a "secret plan" to kill Ri Nguyen, while telling his companions the purpose of the confrontation was merely to intimidate Ri Nguyen, and Tran fired only in reaction to Big Bobbyís gunshots, for the purpose of "getting out or backing up whatever play was going on." We believe Tranís supposition is unreasonable.

In his reply brief, Tran cites People v. Williams (1997) 16 Cal.4th 635, which reversed a conviction for deficient jury instructions on the multiple-murder special circumstance. (Id. at pp. 687-691.) There, however, the special circumstance instruction given to the jury said nothing at all about intent to kill. It merely told the jury that to find the special circumstance, it must be proved that the defendant was convicted of more than one offense of murder in the first or second degree. (Id. at p. 687.) Thus, Williams has no bearing here, where the instruction did inform the jury of an intent to kill requirement for aiders/abettors.

Tran cites this courtís decision in People v. Roy (1989) 207 Cal.App.3d 642, where we reversed a judgment of sentence predicated on a deficient multiple-murder special circumstance jury instruction, because the jury reasonably could have read the instructions as given, argued and applied to the evidence, to authorize the special circumstance finding on the ground that the defendant aided and abetted the robbery of the first degree murder victim, the natural and probable consequence of which was the victimís killing by the defendantís accomplice. (Id. at pp. 648-656.) However, Roy is inapposite because here the prosecutor did not proceed on a natural and probable consequence theory.

We conclude Tran fails to show any reversible error in connection with the multiple murder special circumstance.

II. Three Strikes Law

The trial court sentenced Tran to a term of life without possibility of parole on count one and doubled it because Tran had a prior "strike" conviction.

Tran argues the trial court erred by doubling the sentence of life without possibility of parole, under the three strikes law. (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1).)16 Tran says it is nonsensical to double a life sentence without possibility of parole.17 We agree.

While the literal statutory language arguably calls for doubling of a life sentence without possibility of parole, "Ď"It is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend."í" (Younger v. Superior Court (1978) 21 Cal.3d 102, 113, followed in California School Employees Assn. v. Governing Board (1994) 8 Cal.4th 333, 340.)

Here, doubling the life without possibility of parole sentence is absurd and trivializes the integrity of the single life without possibility of parole sentence, which is sufficient. Defendant has but one life to give to the Department of Corrections.

We conclude the doubling should be stricken, and the sentence on count one should be a single sentence of life without possibility of parole.

III. Nguyenís Contentions

A. Sufficiency Of Evidence

Nguyen contends there is insufficient evidence to support conviction for the murder of Say Ngo and the two assaults (counts two, three and four).

We rejected ante a similar contention made by Tran and do so again here.

Nguyen points out all three shots fired by him hit the intended victim, Ri Nguyen. He points out the jurors found him not guilty of first degree murder of Ri Nguyen, though they found him guilty of second degree murder as to that victim. Nguyen points out he was convicted as an aider and abettor as to the other three victims. Nguyen argues there is no evidence that he shared any intent to kill or shoot anyone other than Ri Nguyen or had any knowledge that the others had the intent to do so. However, as we have explained in addressing Tranís contention, there did not need to be any such evidence.

Nguyen cites U.S. v. Andrews (9th Cir. 1996) 75 F.3d 552. Nguyen fails to show that that case, arising in Nevada, is authority for his position. In Andrews, the defendant and his sister armed themselves and set out to find a man (Lowery) who had struck the sister earlier in the day, with the purpose of "getting" him and "trashing" his car. (Id. at p. 554.) The defendant and his sister found Lowery with his friends in a car. The defendant got out his truck, approached the car, and shot and killed Lowery (who had stepped out of the car), while the sister remained in defendantís truck. (Ibid.) One of Loweryís friends left the car and ran. The sister then approached the vehicle and (despite knowing at least one person was still in the car) began firing into the car, killing one man and wounding others. The Ninth Circuit reversed the defendantís aiding and abetting convictions concerning the persons shot by the sister, on the grounds of insufficient evidence. (Id. at p. 556.) The Andrews court said the sister "did not shoot the victims in the car in the course of getting Lowery[.]" (Id. at p. 556.) Here, all injuries to all the victims occurred during the blitz on Ri Nguyen. Thus, Andrews is distinguishable from this case.18

Nguyen gives a bare citation to U.S. v. Bancalari (9th Cir. 1997) 110 F.3d 1425, with no explanation of how it applies here. That case found error where the jury instructions would have permitted the jurors to convict if they simply found the defendant knew that a firearm was being used, without finding he intentionally aided and abetted the use or carrying of the firearm. (Id. at p. 1429.) We see no application of Bancalari to this case.

We conclude the evidence was sufficient to support counts two, three and four.

B. Jury Instruction -- Natural And Probable Consequences

Nguyen argues the jury was "inadequately" instructed on a natural and probable consequences theory for aider and abettor liability. We disagree for the same reasons we have already discussed with respect to Tran.

The jury was not instructed on the natural and probable consequences theory and did not need to be so instructed, because the prosecution did not proceed on that theory, and Nguyen acquiesced in withdrawal of that jury instruction.

Nguyen believes that, because there was a target crime in this case (the shooting of Ri Nguyen), then the natural and probable consequences doctrine must apply to the other victims. We disagree.

Nguyen cites People v. Rogers (1985) 172 Cal.App.3d 502, for the proposition that the question is whether murder is a natural and probable consequence of the target crime, inasmuch as simply finding that a killing was a natural and probable consequence would effectively eliminate the intent requirement. In Rogers, in the course of affirming convictions, we said the acts aided, upon which natural and probable consequences are predicated, are the criminal acts of which the accomplice stands convicted. (Id. at p. 515.) We continued in a footnote: "If this were not the case, if the test of aiding and abetting were to include the natural and probable consequences of the act of aid rather than the acts (offenses) aided, the intent requirement of Beeman would be emasculated." (Id. at p. 515, fn. 18, original italics.) Rogers does not assist Nguyen.

Nguyen says: "Inasmuch as the jury rejected the prosecutionís theory that [Nguyen] was involved in the premeditated execution of Ri Nguyen, the court likewise should have instructed on any target offenses that [he] could have ostensibly been involved with, such as brandishing a weapon." If Nguyen is trying to make some sort of argument about lesser offenses, it is waived. (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19 [disregard contentions not adequately briefed].) Insofar as Nguyen claims the jury was completely unguided as to what criminal acts he may have intended to aid and abet, we disagree.

We conclude Nguyen fails to show reversible error.

C. Jury Instruction -- Ignorance Or Mistake Of Fact

Nguyen argues the trial court erred in refusing to instruct the jury with CALJIC No. 4.35 concerning ignorance or mistake of fact. We disagree.

Nguyen requested that the jury be instructed with CALJIC No. 4.35, as follows: "An act committed or an omission made in ignorance or by reason of a mistake of fact which disproves any criminal intent is not a crime. [¶] Thus a person is not guilty of a crime if [he] [she] commits an act or omits to act under an actual [and reasonable] belief in the existence of certain facts and circumstances which, if true, would make such act or omission lawful." (Original brackets.)

The trial court declined Nguyenís requested instruction but did instruct the jury on imperfect self-defense. Nguyen claims this was not enough, because the jury was told imperfect self-defense could not be used if the defendant was the aggressor.

The test as to whether the instruction should have been given is "whether there was substantial evidence presented which would warrant the giving of the instruction. [Citation.] A jury instruction need not be given whenever any evidence is presented, no matter how weak. [Citation.] Rather, the accused must present Ďevidence sufficient to deserve consideration by the jury, i.e., evidence from which a jury composed of reasonable men could have concluded that the particular facts underlying the instruction did exist. [Citation.] [¶] This does not require -- or permit -- the trial court to determine the credibility of witnesses. It simply frees the court from any obligation to present theories to the jury which the jury could not reasonably find to exist.í [Citation.]" (People v. Strozier (1993) 20 Cal.App.4th 55, 63.)

Nguyen claims there is evidence supporting the defense embodied in CALJIC No. 4.35. We disagree.

Unlike the imperfect self-defense (upon which the jury was instructed), the defense posited by CALJIC No. 4.35 required that the defendantís supposed belief in the need to defend be both honest and reasonable.

Nguyen cites no evidence that his supposed belief in the need to defend was reasonable.

According to Nguyen, there was evidence, in that: (1) there was no discussion in the cafe or in the car en route to the Lemon Hill apartments about actually using the guns Nguyen and his companions were carrying; (2) Nguyen testified he did not know why he was going to the apartment, he just followed his companions; (3) Nguyen heard shots and mistakenly believed they were coming from someone other than his companions; (4) he was only 16; (5) he and his companions did not have their guns drawn when they approached the others; and (6) he was behind his companions and therefore could not necessarily see what was happening.

However, Nguyenís own recitation confirms it was not reasonable for him to believe others were shooting at him and his companions. By his account, he had no idea a confrontation was afoot, and thus there was nothing giving him reason to believe others were attacking his group. The mere fact that he heard gunshots did not give him reason to believe his group was being attacked, because Nguyen knew his companions had guns (though he claimed not to have seen them drawn at the crime scene) but cites nothing making it reasonable for him to believe the others had guns. He testified he did not see any.

We conclude the trial court did not err in refusing to instruct with CALJIC No. 4.35. We therefore need not address the contentions concerning harmless error analysis.

D. Reasonable Doubt Instruction

Nguyen contends the definition of reasonable doubt given to the jury violated his right to due process of law, requiring reversal per se. We disagree.

The jury was instructed with the 1994 revised version of CALJIC No. 2.90, defining reasonable doubt as follows: "It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge."

Other courts have rejected arguments similar to those presented here. (E.g., People v. Aguilar (1997) 58 Cal.App.4th 1196, 1207-1209, citing inter alia Victor v. Nebraska (1994) 511 U.S. 1, 6 [127 L.Ed.2d 583, 591] and People v. Freeman (1994) 8 Cal.4th 450, 501-505.) Nguyen gives us no reason to depart from these cases.

We conclude Nguyen fails to show any basis for reversing his conviction. We now turn to defendantsí joint contention that the section 1202.45 restitution fines violate ex post facto laws.

IV. Restitution Fine

As to each defendant, the trial court imposed a $10,000 restitution fine, suspended unless and until the defendant violated parole, all pursuant to section 1202.45.

Tran and Nguyen contend these fines imposed but suspended under section 1202.45 should be stricken, because they violate ex post facto principles. We agree.19

Section 1202.45 went into effect August 3, 1995 (Stats. 1995, ch. 313, § 6) -- after the subject crimes were committed in June 1995, and before the December 1996 verdicts.

Section 1202.45 provides: "In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4,[20] assess an additional restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional restitution fine shall be suspended unless the personís parole is revoked."

The federal and state ex post facto clauses (U.S. Const., art. I, § 10, cl. 1;21 Cal. Const., art. I, § 922) prohibit legislation "which makes more burdensome the punishment for a crime, after its commission . . . ." (Collins v. Youngblood (1990) 497 U.S. 37, 42 [111 L.Ed.2d 30, 39]; People v. McVickers (1992) 4 Cal.4th 81, 84.) Here, the statute authorizing imposition of the fine became effective after the date of commission of the crimes.

The People rely entirely on People v. McVickers, supra, 4 Cal.4th 81, which found no ex post facto violation in application of a new statute (§ 1202.1) requiring an AIDS blood test for conviction of certain sexual offenses. The Supreme Court held (1) neither the drawing of blood nor the disclosure of test results to the defendant and law enforcement officials produced an effect constituting punishment for ex post facto purposes, and (2) the purpose of the statute--to prevent the spread of AIDS--furthered a legitimate nonpunitive governmental interest. (People v. McVickers, supra, 4 Cal.4th at pp. 87-89.)

The McVickers result is clearly distinguishable. The inquiry there was whether a blood test (an unusual item in ex post facto analysis) constituted punishment. McVickers pointed out that some matters may be decided intuitively; "there is little dispute that additional jail time or extra fines are punishment." (People v. McVickers, supra, 4 Cal.4th at p. 84.)

Here, the issue is a restitution fine. Section 15 includes fines as a form of punishment for crime. "A restitution fine qualifies as punishment for purposes of the prohibition against ex post facto laws."23 (People v. Saelee (1995) 35 Cal.App.4th 27, 30; see also, People v. Downing (1985) 174 Cal.App.3d 667, 672 [ex post facto clause prohibited section 1202.4 restitution fine where crime was committed before operative date of statute].) People v. Saelee, supra, 35 Cal.App.4th 27, held that under ex post facto principles, a statutory amendment increasing the amount of a Government Code section 13967 restitution fine could not be applied to a defendant whose offenses were committed before the effective date of the amendment. (People v. Saelee, supra, 35 Cal.App.4th at p. 30, citing inter alia People v. Walker (1991) 54 Cal.3d 1013 [which said in a different context that although the purpose of a restitution fine is not punitive, its consequences to the defendant are severe enough that it qualifies as punishment] and People v. Zito (1992) 8 Cal.App.4th 736, 740-741; but cf., People v. Young (1995) 38 Cal.App.4th 560, 567-569 [restitution fine is not always and invariably a form of punishment; defendant suffered no greater sanction or penalty because of fact that victim restitution order was deleted as condition of probation but added as part of his previously suspended sentence after revocation of probation].)

The wrinkle in this case is that the section 1202.45 fine, though imposed, is suspended unless and until parole is revoked. The statute thus provides an incentive for compliance with terms of parole. The People argue the section 1202.45 fine is not punishment for the current crimes but rather a fine conditioned on future bad conduct, i.e., whatever conduct leads to revocation of parole. According to the People, section 1202.45 puts the defendant on notice that additional punishment may be imposed if he commits future bad acts. We disagree.

First, the amount of the section 1202.45 fine is tied to the current crimes. Thus, section 1202.45 by its own terms sets the amount of the fine "in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." The amount of the section 1202.4 fine is set "commensurate with the seriousness of the offense[.]" (§ 1202.4, subd. (b), fn. 20, ante.) Section 1202.4, subdivision (a), states the Legislatureís intent that crime victims receive restitution. Thus, the section 1202.45 fine is for the current offense, not future conduct.

Moreover, section 3060.1 provides: "Upon the revocation of the parole of any prisoner who was ordered by the court to pay an additional restitution fine pursuant to Section 1202.45, but which was suspended by that section, the additional restitution fine shall be reinstated without the need for any further court proceeding." Thus, upon revocation of parole, reinstatement of the fine is automatic, with no adjudication of bad conduct or the reason for the revocation. Tran notes parole may be revoked for a myriad of reasons, including technical violations such as failure to report a change of address. Consequently, we disagree with the Peopleís position that section 1202.45 does not have the effect of punishing for past offenses.

The People also argue section 1202.45 has no punitive intent. They state the legislative history sheds no light on the statuteís purpose but claim it is "obvious" from the words of the statute that its purpose is to help pay for the costs associated with the revocation of a defendantís parole. It does not appear obvious to us.24 Section 1202.45 refers to section 1202.4, which in turn reflects the legislative intent to provide for crime victims (§ 1202.4, subd. (a)) and directs that the fine "shall be deposited in the Restitution Fund in the State Treasury" (§ 1202.4, subd. (e)). The Restitution Fund is used "to assist residents of the State of California in obtaining restitution for the pecuniary losses they suffer as a direct result of criminal acts. . . . [C]rime victims may obtain restitution through compensation from the Restitution Fund." (Gov. Code, § 13959.) Thus, the purpose of the section 1202.45 fine is to compensate crime victims, not to defray administrative costs in revoking parole.

We note this restitution fine is different from the jail booking and classification fees which we held did not constitute punishment for ex post facto purposes, in People v. Rivera (1998) 65 Cal.App.4th 705. We concluded the fees were administrative costs and did not promote the traditional aims of punishment -- retribution and deterrence -- in the same way a restitution fine does. (Id. at p. 710.)

We consider various cases not cited by the People but find them to be distinguishable. Thus, People v. White (1997) 55 Cal.App.4th 914, indicated in dictum that application of a statutory amendment which permitted deduction of direct restitution payments from prison wages did not violate the ex post facto clause, because the defendantís liability for the restitution was already clear at the original sentencing. The amendment was only procedural and did not make the punishment more burdensome. (Id. at p. 917; see also, People v. Kwolek (1995) 40 Cal.App.4th 1521, 1536 [no ex post facto problem where statutory amendment was purely procedural, merely addressing manner of payment].) Here, of course, we do not deal with a mere procedural change but a new statutory authorization for an additional fine.

We also note case law has held the ex post facto clause was not violated by application of an amendment to section 3057 which provided that confinement pursuant to a parole revocation may be extended for an additional 12 months for subsequent acts or misconduct committed by the parolee while confined pursuant to that parole revocation. (E.g., In re Nolasco (1986) 181 Cal.App.3d 39; In re LeDay (1985) 177 Cal.App.3d 461.) Previously, confinement had been limited to a total of 12 months in the absence of a new conviction and commitment to prison under other provisions of law. The reasoning was that the provision was not an ex post facto provision since the misconduct for which the defendantís time was extended occurred after the effective date of the new provision. (Ibid.) These cases have no bearing here, because they involved a statute which by its own terms authorized extended confinement "for subsequent acts of misconduct committed by the parolee while confined pursuant to that parole revocation." (In re LeDay, supra, 177 Cal.App.3d at p. 463, quoting section 3057.) Here, for the reasons already explained, section 1202.45 does not punish subsequent conduct.

In re Bray (1979) 97 Cal.App.3d 506, held application of a longer period of parole, under a statutory amendment, violated the ex post facto clause since it retroactively deprived the parolee of a vested right to which he became entitled under the prior statute. In re Bray does not assist in this case.

We conclude the section 1202.45 fine must be stricken as violative of the prohibition against ex post facto laws.

DISPOSITION

The doubling of Tranís sentence of life without possibility of parole on count one is stricken. The trial court is directed to correct the abstract of judgment to reflect a single, rather than double, sentence of life without possibility of parole on count one, and furnish the Department of Corrections with a copy of the corrected abstract.

The section 1202.45 restitution fine is stricken as to both Tran and Nguyen. Correction of the abstracts of judgment is not necessary with respect to the section 1202.45 fine, inasmuch as they do not mention the section 1202.45 fine.

The judgment as to each defendant is otherwise affirmed.

(CERTIFIED FOR PARTIAL PUBLICATION.)

 

SIMS , Acting P.J. * Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of FACTUAL AND PROCEDURAL BACKGROUND and parts I and III of the DISCUSSION.

We concur:

RAYE , J.

CALLAHAN , J.

 

 


FOOTNOTES

* Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of FACTUAL AND PROCEDURAL BACKGROUND and parts I and III of the DISCUSSION.

1 Undesignated statutory references are to the Penal Code.

2 It does not appear victim Ri Nguyen was related to defendant Nguyen. We will refer to defendant Nguyen as Nguyen and victim Ri Nguyen as Ri Nguyen.

3 Big Bobby was still at large at the time of this trial. Billy testified for the prosecution in exchange for a five-year prison term. The jury was told he was an accomplice as a matter of law.
Defendants emphasize who held which gun and which bullets hit which victim. However, these distinctions do not assist defendants, in light of the aiding and abetting principles.
We nevertheless note the evidence indicated Tran used a nine millimeter gun, Nguyen used a .22 caliber, and Big Bobby used a .41 caliber gun (though Tran thinks Nguyen may have had the .41 and Big Bobby the .22). Victim Ri Nguyen was riddled with 10 or 11 bullets of various sizes, including a nine millimeter, some .22 calibers, and other unidentified bullets. Say Ngo was hit by a larger caliber bullet, which could be a nine millimeter or .41 caliber. Huang was hit by a .41 caliber, and the caliber is unknown as to victim Vong.
Tran claims Ri Nguyen was a violent character who used guns, but Tranís citations to the record do not bear out this assertion.

4 In the car accident, Tran sustained a small laceration above his eyebrow. A witness testified to what was described as "sort of" a scar by Tranís eye or brow.

5 Tran indicates Eric Le was friendly to the defense.

6 In this case, codefendant Nguyen admitted shooting his gun but denied guilt of the charged offenses, claiming he shot to protect his companions.

7 Here too, the jurors were instructed with CALJIC No. 1.00, that they must not be influenced by prejudice against a defendant.

8 As noted by Tran, the Supreme Court recently issued an opinion concerning the accomplice instruction in People v. Guiuan (1998) 18 Cal.4th 558. However, Guiuan does not speak to the issue in the case before us. In Guiuan, accomplices testified for the prosecution but gave some testimony favorable to the defendant. The trial court, without objection by the defendant, instructed the jury that accomplice testimony should be viewed with distrust. On appeal, the defendant argued the trial court should have modified the standard instruction sua sponte to have the jury view accomplice testimony with distrust only as to those portions of the testimony which tended to incriminate the defendant. (Id. at p. 563.) The Supreme Court held that, at the time of trial, the rule was that in the absence of any objection, the trial court was not required sua sponte to modify the instruction with regard to testimony favorable to the defendant. Thus, the trial court did not err. (Id. at pp. 565, 570.) The Supreme Court changed the rule for future cases only, such that henceforth the instruction on accomplice testimony should be "pretailored" to indicate that only testimony unfavorable to the defendant should be viewed with care and caution. (Id. at pp. 569-570.)
Guiuan has no direct bearing on the case before us. The prospective rule announced for future cases obviously has no application here, where trial has already occurred. Moreover, the disposition concerning the trial in Guiuan has no direct bearing here, because there the accomplices were not codefendants, and the issue concerned limiting the instruction because some of the accomplice testimony favored the defendant. Here, Tran sought to apply, not limit, the instruction, and the complication arose from the fact the accomplice-witness was also a codefendant.

9 Tran suggests there is a federal due process violation in this case, requiring heightened scrutiny, but he does not develop the point or provide any legal authority, and we therefore need not consider the matter.

10 Tran asserts the witness testified he did not see his brother (victim Ngo) get shot. However, what the cited evidence shows is that the witness was present at the scene of the shooting, saw the shooting start and ducked into an apartment when the shooting began.

11 After briefing was completed in this appeal, the California Supreme Court issued its opinion in People v. Mendoza (1998) 18 Cal.4th 1114, holding the intent requirement for aiding and abetting liability is a "required specific intent" for which evidence of voluntary intoxication is admissible under section 22. (Id. at p. 1126.) The Court said its holding was "very narrow," and once a jury finds a defendant knowingly and intentionally aided and abetted a criminal act, intoxication evidence is irrelevant as to the extent of the criminal liability. (Id. at p. 1133.) No issue of intoxication is present in this case, and we do not see that Mendoza has any bearing on the case before us.

12 Section 12022.5, subdivision (a), prescribes an additional punishment for "any person who personally uses a firearm in the commission or attempted commission of a felony . . . ."

13 Penal Code section 190.2, subdivision (a), provides in part: "The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true; . . . [¶] (3) The defendant, in this proceeding, has been convicted of more than one offense of murder in the first or second degree."

14 In passing, Tran also questions the constitutionality of the trial courtís ruling (for which he provides no citation to the record) that the second degree murder did not require an intent to kill for the multiple murder special circumstance on an accomplice theory, so long as there was such an intent for the first degree murder. Tran acknowledges there is support for the ruling, but he questions it "in view of the wide diversity of means by which a second degree murder may occur, including, for example, where there was an unintended and possibly not reasonably foreseeable cause [sic] of a bullet going through the original victim with sufficient residual force to cause the death of a second victim without an intent to kill that victim." Tran says that if the qualifying circumstance is a matter of happenstance, it may be cruel and unusual under the federal Constitution (citing Enmund v. Florida (1982) 458 U.S. 782 [73 L.Ed.2d 1140]). Without developing the point or applying it to the facts of this case, Tran goes on to argue that, even assuming the instructions constitutionally permitted the special circumstance to be based upon an intent to kill (or actually killing) only the first degree victim, the instruction was deficient for the reasons stated in the text of our opinion. We therefore conclude Tran has waived the matter of the constitutional question. (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19.)

15 The jury was instructed with CALJIC No. 8.80.1, that: "If you find a defendant in this case guilty of one murder in the first degree and one murder in the first or second degree, you must then determine if the following special circumstance is true or not. [¶] That the defendant committed multiple murders: at least one murder in the first degree and one additional murder in the first or second degree. [¶] . . . [¶] If you are satisfied beyond a reasonable doubt that a defendant actually killed both victims, you need not find that that defendant intended to kill in order to find the special circumstance to be true. [¶] If you find that a defendant was not the actual killer of both victims, or if you are unable to decide whether that defendant was the actual killer of both victims or an aider and abettor, you cannot find the special circumstance to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such defendant with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of a murder in the first or second degree. . . ."

16 Section 667, subdivision (e)(1) provides: "If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction."
Section 1170.12, subdivision (c)(1), provides: "If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction."

17 The Supreme Court currently has under review various cases concerning application of the three strikes law to a sentence of life with the possibility of parole. (E.g., People v. Barra (1998) 60 Cal.App.4th 838, review granted Jan. 8, 1998; People v. [Sa Hoang] Tran (1997) 59 Cal.App.4th 1125, review granted Mar. 11, 1998; People v. Jefferson (1996) 50 Cal.App.4th 958, review granted Feb. 19, 1997.)

18 In a footnote, Andrews said "The jury could reasonably conclude that [the sisterís] shooting at the car was a natural and probable consequence of their agreement to Ďtrashí the car. But this reasoning does not support an inference that [the defendant] had the requisite intent to commit murder." (U.S. v. Andrews, supra, 75 F.3d at p. 556, fn. 4.) We need not comment on this statement, since Andrews is distinguishable on the basis we have explained.

19 For present purposes, we assume without deciding the fine is otherwise appropriate as to Tran, despite his sentence on count one of life without possibility of parole.

20 Section 1202.4, subdivision (b), provides in part: "In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. [¶] . . . The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony . . . ."

21 United States Constitution article I, section 10, provides in part: "No State shall . . . pass any . . . ex post facto Law . . . ."

22 California Constitution, article I, section 9, provides in part: "A[n] . . . ex post facto law . . . may not be passed."

23 We have said that restitution fines under sections 1202.4 and 1202.45 constitute punishment for double jeopardy purposes. (People v. Thompson (1998) 61 Cal.App.4th 1269.) In People v. Palomar (1985) 171 Cal.App.3d 131, we held as a matter of statutory construction that a section 1202.4 restitution fine could not be retroactively applied to offenses committed before the statuteís operative date.

24 The Attorney General goes further and states that if the purpose is not to help pay costs associated with parole revocation, then "it would make no sense only to impose it on defendants whose parole is actually revoked." Tran replies that the Attorney Generalís position gives rise to additional points that the fine violates due process and equal protection. Since we conclude the ex post facto clause precludes application of section 1202.45 in this case, we need not address the due process and equal protection arguments.