People v. Huynh, No. B147879.

• Court: California Court of Appeals
• Writing for the Court: Turner
• Citation: 99 Cal.App.4th 662,121 Cal.Rptr.2d 340
• Parties: The PEOPLE, Plaintiff and Respondent, v. Quan Le HUYNH, Defendant and Appellant.
• Docket Number: No. B147879.
• Decision Date: 24 June 2002

121 Cal.Rptr.2d 340 99 Cal.App.4th 662 The PEOPLE, Plaintiff and Respondent,
v.
Quan Le HUYNH, Defendant and Appellant. No. B147879. Court of Appeal, Second District, Division 5. June 24, 2002. Certified for Partial Publication.^* As Modified on Denial of Rehearing July 15, 2002. Review Denied September 25, 2002.

[121 Cal.Rptr.2d 341]

[99 Cal.App.4th 664]

Kathy M. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, Michael R. Johnson, Deputy Attorney General, for Plaintiff and Respondent.

TURNER, P.J.

I. INTRODUCTION

Defendant, Quan Le Huynh, appeals from his convictions for second degree murder (Pen.Code, § 187)¹ and shooting at an inhabited automobile. (§ 246.) Defendant contends that evidence was erroneously presented to the jury and there was instructional error. In the published portion of this opinion, we address the question of whether the trial court has a sua sponte duty to instruct on a misdemeanor target offense, not identified by the prosecutor, which would support an involuntary manslaughter verdict in a case where the deputy district attorney relies on an implied malice crime second degree murder natural and probable consequences aiding and abetting theory. Because, as will be noted, the Supreme Court held in People v. Prettyman (1996) 14 Cal.4th 248, 269, 58 Cal.Rptr.2d 827, 926 P.2d 1013, there is no sua sponte duty to instruct on a target offense not identified by a prosecutor, we reject defendant's contention to the contrary. We affirm the judgment of conviction and sentence. But we order the abstract of judgment corrected to reflect that defendant has been convicted of second degree murder.

II. PROCEDURAL HISTORY

Defendant was originally charged in an amended information filed February 28,

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2000, with eight felony counts. In count one, defendant was charged

99 Cal.App.4th 665

with the murder of Minh Nguyen. Additionally, it was alleged: the murder occurred by discharging a firearm from an automobile within the meaning of section 190, subdivision (a)(2); defendant personally discharged a firearm which caused Mr. Nguyen's death within the meaning of section 12022.53, subdivision (d); defendant personally discharged a firearm within the meaning of section 12022.53, subdivision (c); defendant personally used a firearm within the provisions of sections 12022.5, subdivision (a)(1) and 12022.53, subdivision (b); a principal intentionally discharged a firearm pursuant to section 12022.53, subdivisions (d) and (e)(1); a principal personally discharged a firearm within the meaning of section 12022.53, subdivisions (c) and (e)(1); and a principal personally used a firearm within the meaning of section 12022.5, subdivision (a)(1) and section 12022.53 subdivisions (b) and (e)(1).

In count 2, defendant was charged with the attempted willful, deliberate, and premeditated murder of David Tran. (§§ 187, subd. (a), 664, subd. (a).) Additionally, it was alleged: defendant personally used and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (d); defendant personally used and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c); defendant personally used a firearm within the provisions of sections 12022.5, subdivision (a)(1) and 12022.53, subdivision (b); a principal intentionally discharged a firearm pursuant to section 12022.53, subdivisions (d) and (e)(1); a principal intentionally and personally discharged a firearm within the meaning of section 12022.53, subdivisions (c) and (e)(1); and a principal personally used a firearm within the meaning of section 12022.5, subdivision (a)(1).²

In count 3, defendant was charged with the attempted willful, deliberate, and premeditated murder of Andrew Vongkavivathanakul. (§§ 187, subd. (a), 664, subd. (a).) In count 4, defendant was charged with the attempted willful, deliberate, and premeditated murder of Vincent Vongkavivathanakul.³ (§§ 187, subd. (a), 664, subd. (a).) It was alleged in counts 3 and 4: defendant personally used and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c); defendant personally used and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (b); defendant personally used a firearm within the provisions of section 12022.5, subdivision (a)(1); a principal intentionally and personally discharged a firearm within the meaning of section 12022.53, subdivisions (c) and (e)(1); and a principal personally used a firearm within the meaning of section 12022.53, subdivisions (b) and (e)(1).

99 Cal.App.4th 666

In count 5, defendant was charged with shooting at an occupied vehicle. (§ 246.) In count 6, defendant was charged with assault by means likely to produce great bodily injury on Andrew within the meaning of section 245, subdivision (a)(1). In count 7, defendant was charged with assault by means likely to produce great bodily injury on Vincent within the meaning of section 245, subdivision (a)(1). In count 8, defendant was charged with possession of a firearm by a convicted felony. (§ 12021, subd. (a)(1).)

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As to counts 1 through 8, it was alleged that the offenses were committed for the benefit of a street gang. (§ 186.22, subd. (b)(1).)

On November 3, 2000, the jury returned its verdicts. As to count 1, the killing of Mr. Nguyen, defendant was convicted of second degree murder. As to count 5, defendant was convicted of shooting at an occupied automobile. As to all other counts, defendant was acquitted. All special allegations were found to be not true.

III. FACTUAL MATTERS A. The Competing Theories

The prosecution theory was that defendant shot Mr. Nguyen. The shooting occurred on a freeway after a fight erupted in a Hollywood nightclub parking lot. The prosecution contended that the shooting arose out of defendant's longtime membership in an Asian street gang. By contrast, defendant's theory was that Max Khaolaeiad shot Mr. Nguyen. Defendant admitted being in the car when Mr. Khaolaeiad shot Mr. Nguyen and the incident occurred after the conclusion of the nightclub parking lot fight. Defendant testified Mr. Khaolaeiad unexpectedly fired the shots. Under the defense theory, at the time of the shooting, defendant planned to throw a bottle at the car carrying Mr. Nguyen forcing it off the side of the road. Thereupon, defendant intended to use a metal steering wheel security device, commonly called the Club, to attack the occupants of the car in which Mr. Nguyen was riding. The attack on the car in which Mr. Nguyen was a passenger was to be accomplished by all four occupants of defendant's black Acura Sebring. As noted previously, defendant was convicted of second degree murder and discharging a firearm at a car.

B. The Gang Evidence

There was conflicting evidence as to defendant's membership in an Asian street gang and its role in the shooting of Mr. Nguyen. Detective Mark Nye of the Westminster Police Department testified concerning Asian street gangs generally. Unlike other ethnic groups, Asian street gang members

99 Cal.App.4th 667

Income from affluent and educated families and do not claim a "turf." However, according to Detective Nye, Asian gangs require a member to be "jumped in." This meant the potential member was to be beaten by his future fellow gang members. Similarly, when leaving the gang, the member was subjected to a "jumping out" ceremony. Detective Nye believed that respect, i.e., face, is "no. 1 for" Asian street gangs. For gangs, respect is gained by violence.

Detective Nye also testified concerning defendant's street gang. It was the result of the fusion of other Asian gangs. Defendant's gang began forming in 1991 in the cities of Westminster and Huntington Beach. Defendant's gang had its own tattoo and graffiti. Defendant was mentioned in letters written by other gang members. Defendant also appeared in photographs with other gang members. Young men of Vietnamese descent dominated defendant's gang.

On January 7, 2000, Johnny Hung Nguyen,⁴ a member of defendant's gang, was convicted of attempted murder. Additionally, Johnny admitted he used a deadly weapon and the crime was committed for benefit of or at the direction of a street gang. In Detective Nye's opinion, the attempted murder was committed to further the purposes of defendant's gang. Johnny was a founding member of defendant's gang. Detective Nye was permitted to

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offer an opinion concerning the shooting in the present case. Detective Nye believed the shooting in the present case was designed to benefit the gang.

Defendant testified concerning his past participation in gang activities. Defendant admitted the group he associated with saw themselves at one time as a gang. Defendant admitted becoming a member in 1994 of the gang identified by Detective Nye. Defendant explained his involvement in the gang as follows: "[It] is not a gang, this is our group of friends. We like to party, ... we don't jump in people, we don't do things like gangs, but then some of us took it to another level, including myself. [¶] ... [W]e start thinking we're bad, this is a gang, let's make this ... a gang." Defendant took his involvement at one time in the gang very "seriously." Thereafter, defendant became involved in gang-related fights. Weapons were used in some of the fights. Defendant's gang moniker was "Youngsta." Defendant used his gang moniker even after he left the gang in 1998. Defendant admitted writing letters referring to the gang. The gang had been involved in fights and used firearms during some of those altercations. Some of the gang members had tattoos. By 1998, after being paroled on a firearms possession violation, defendant...