People v. Nguyen

THE PEOPLE, Plaintiff and Respondent, v. AARON TRUNG NGUYEN and ANTHONY VAN LE, Defendants and Appellants.

G055296

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

May 15, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 11WF0963)

OPINION

Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed in part, reversed in part, and remanded with directions.

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant Aaron Trung Nguyen.

Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Van Le.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Annie Featherman Fraser, Deputy Attorney General, for Plaintiff and Respondent.

* * *

A jury convicted defendants Aaron Trung Nguyen and Anthony Van Le of second degree murder (Pen. Code, 187, subd. (a); count 1),¹ attempted murder (§§ 664, subd. (a), 187, subd. (a); count 2), and shooting at an occupied motor vehicle (§ 246; count 3). As to each offense, the jury found true allegations that defendants committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and vicariously discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (d), (e)(1)). Le was also convicted of participating in a criminal street gang (§ 186.22, subd. (a); count 4).

Nguyen was sentenced to state prison for a term of 40 years to life as to count 1, comprised of 15 years to life for second degree murder and a consecutive term of 25 years to life for vicariously using a firearm in the offense. A concurrent term of 30 years to life was imposed on count 2, comprised of five years for the attempted murder conviction and 25 years to life for the firearm enhancement. As to count 3, the court imposed three years for the offense of shooting at an occupied vehicle and 25 years to life for the firearm enhancement, but stayed the sentence under section 654. Le received the same sentence as Nguyen as to counts 1 through 3. For the active gang participation conviction in count 4, the court imposed the low term of 16 months and then stayed the sentence under section 654. As to both defendants, the court dismissed the gang enhancements for sentencing purposes.

Defendants' convictions were based on events in which members of the Tiny Rascals Gang (TRG) and its affiliate Hellside sought to fight rival gang members outside a pool hall. When the rival gang members fled in a vehicle, multiple cars occupied by TRG and Hellside members gave chase. A Hellside member shot at the rival's car, killing one rival and seriously wounding another. Neither defendant was the shooter. Nguyen was not even a gang member. Defendants were convicted of murder, attempted murder, and shooting at an occupied vehicle based on two theories of vicarious liability under the natural and probable consequences doctrine: (1) defendants aided and abetted the commission of the uncharged target crime of disturbing the peace, challenging another to fight in a public place (§ 415, subd. (1)), and the charged offenses were the natural and probable consequence of the target crime; and/or (2) defendants entered into a conspiracy to disturb the peace and the charged offenses were the natural and probable consequences of the target crime.

Defendants raise multiple issues on appeal. Le contends all of his statements to the police should have been excluded because he was subjected to custodial interrogation without being advised of his Miranda² rights and the police deliberately engaged in a two-step interrogation technique condemned in Missouri v. Seibert (2004) 542 U.S. 600 (Seibert). Because neither contention was raised below, Le asserts a violation of his Sixth Amendment right to the effective assistance of counsel. We reject Le's claim that his counsel was ineffective for failing to move for the suppression of his statements as we cannot say on this record that his counsel lacked a satisfactory explanation.

Le also seeks reversal of his convictions in counts 1 through 3 by arguing the evidence was insufficient to prove he aided and abetted the target crime of disturbing the peace or that the charged offenses were the natural and probable consequences ofdisturbing the peace. He further argues the evidence was insufficient to support his conviction for active gang participation in count 4. We agree the evidence was insufficient to support Le's active gang participation conviction and reverse it, but we conclude the evidence was sufficient to support his remaining convictions.

Le raises two contentions concerning the court's instructions on the conspiracy natural and probable consequences theory: (1) The court committed instructional error with its modified version of CALCRIM No. 417 on coconspirator liability; and (2) that the conspiracy natural and probable consequences theory is invalid when the target crime is disturbing the peace. We reject both contentions.

Finally, Le raises sentencing issues, contending his case should be remanded for the trial court to consider whether to exercise its discretion to strike the firearm enhancements; discretion the court did not have at the time of his sentencing. He also requests we remand his case for the court to conduct a Franklin proceeding.³ We agree a remand is appropriate for both issues. We also agree with the contention that the court's order for direct victim restitution (§ 1202.4, subd. (f)) should indicate that liability is joint and several with certain codefendants. We also order corrections of clerical errors in Le's abstract of judgment.

Nguyen contends the evidence was insufficient to support his convictions under either theory of vicarious liability. We agree, reverse the judgment against him, and therefore do not reach his other claims.

After briefing was complete, the parties filed supplemental briefs regarding the impact of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015; Senate Bill 1437), which was enacted while this appeal was pending, to defendants' convictions for murder and attempted murder. We conclude that Le must file a petition in thesuperior court under section 1170.95 to obtain relief for his murder conviction and that Senate Bill 1437 does not apply to attempted murder.

FACTS

On the evening of March 19, 2011, members of TRG, a criminal street gang, attended a party at the home of Andrew Tran, an associate of the gang. About 20 people attended the party, including members of TRG's affiliate Hellside and non-gang members. Defendant Le, a member of TRG, was at the party with Cynthia Sipaseuth. Defendant Nguyen, who was not a member or associate of any gang, attended the party with his girlfriend Nina Nguyen.⁴ Also in attendance were Benjamin Nguyen, a member of Hellside, S.A., a minor who was an associate of TRG, and Tien Phung, a high ranking member of TRG known as CJ. At the party, Tran suggested they go and look for TRG's rivals, which were the gangs Power of Vietnamese (POV), Vietnamese Together (VT), and Asian Family (AF).

When Tran's party ended around midnight, the partygoers piled into different cars with a plan to look for POV and VT members. S.A. got into the backseat of Tran's car, along with two others, one of whom was affiliated with TRG. Benjamin was in the front passenger seat of Tran's car and had a silver semiautomatic firearm.

Le left the party in a car driven by Sipaseuth, who testified at trial under a grant of immunity. They went to the home of Duy Kim, a Hellside member, who retrieved a gun and put it into the car of another Hellside member who had been at Tran's party. Sipaseuth heard someone say that if they found members of POV or VT, theywould shoot them. Sipaseuth and Le then went to Stonecress Park, where they met up with other people from Tran's party, including Nguyen and Nina.

Nguyen and Nina had gone to Stonecress Park in Nguyen's car, after leaving Tran's party. Riding with Nguyen were Nina's friend Julie and two members of TRG, Alex Tran and Tony.⁵ Several people from the party were also at the park. Alex got out of Nguyen's car and talked to CJ. When Alex got back in the car, he told Nguyen to follow CJ's car but did not explain why. As they were leaving the park, Nina heard Alex talking on his phone and say something about chasing and attacking POV. Nguyen eventually lost CJ's car. Using his cell phone, Alex tried to locate CJ and the others but was unsuccessful. Nguyen stopped at a restaurant. Alex and Tony got out of the car and were on their phones. At one point, Nguyen got out of the car too. When they left the restaurant, Tony told Nguyen to go to the pool hall. Nina heard Tony talking on the phone and saying, "We have to follow them, we have to trap them." Nina, who also testified under a grant of immunity, knew there was rivalry between TRG and POV and that TRG wanted to beat them up.

After leaving the park, Sipaseuth and Le met others from the party at a taqueria. Once they left the taqueria, either Le or Sipaseuth received a phone call telling them to go to a pool hall on Westminster Boulevard. Le expected members of VT to be at the pool hall. On their way, they picked up another TRG member, Tom Phung, CJ's younger brother.

Around 2:00 a.m., now on March 20, 2011, several cars containing TRG and Hellside members and associates arrived at the pool hall's parking lot. S.K., riding in Tran's car, saw CJ's car in the parking lot and recognized three or four other cars. Tran and Jonathan Tieu got out of the car, walked up to the front of the pool hall, and...