People v. Lee

• Decision Date: 14 August 2003
• Docket Number: No. S094597.,S094597.
• Citation: 31 Cal.4th 613,74 P.3d 176,3 Cal.Rptr.3d 402
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Phia LEE et al., Defendants and Appellants.

3 Cal.Rptr.3d 402

74 P.3d 176

31 Cal.4th 613

The PEOPLE, Plaintiff and Respondent, v. Phia LEE et al., Defendants and Appellants.

No. S094597.

Supreme Court of California.

August 14, 2003.

Rehearing Denied October 22, 2003.

Certiorari Denied March 22, 2004.

Alisa M. Weisman, under appointment by the Supreme Court, Diamond Bar, for Defendant and Appellant Phia Lee.

Stephen Greenberg, under appointment by the Supreme Court, Nevada City, for Defendant and Appellant Johnson Xiong.

Bill Lockyer, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Acting Chief Assistant Attorney General, Mary Jo Graves, Acting Assistant Attorney General, John G. McLean, Harry Joseph Colombo and Timothy L. Rieger, Deputy Attorneys General, for Plaintiff and Respondent.

Certiorari Denied March 22, 2004. See 124 S.Ct. 1680.

GEORGE, C.J.

Subdivision (a) of section 664 of the Penal Code (section 664(a))¹ provides that, as a general matter, a person guilty of attempted murder must be punished by imprisonment for five, seven, or nine years. It goes on to provide, however, that, "if the [murder] attempted is willful, deliberate, and premeditated ..., the person guilty of that attempt shall be punished by imprisonment ... for life.... The additional term provided ... for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact."

In People v. Bright (1996) 12 Cal.4th 652, 655-657, 49 Cal.Rptr.2d 732, 909 P.2d 1354, we considered the proper characterization of section 664(a), and held that the statute does not create a greater degree of attempted murder, but rather constitutes a penalty provision increasing the punishment for attempted murder beyond the maximum otherwise prescribed, when the murder attempted was willful, deliberate, and premeditated.

We granted review in the present case limited to two issues entirely distinct from the question in Bright. The first issue involves the proper interpretation of section 664(a): Does section 664(a) require that an attempted murderer personally acted willfully and with deliberation and premeditation if he or she is guilty as an aider and abettor? The second issue follows from the first: If section 664(a) in fact so requires, what is the standard of prejudice for a trial court's failure to instruct the jury to determine whether such an attempted murderer so acted?

As we shall explain, we conclude that section 664(a) properly must be interpreted to require only that the murder attempted was willful, deliberate, and premeditated, but not to require that an attempted murderer personally acted willfully and with deliberation and premeditation, even if he or she is guilty as an aider and abettor.

Because we conclude section 664(a), properly interpreted, does not require personal willfulness, deliberation, and premeditation on the part of an attempted murderer, we do not address the standard of prejudice applicable to the trial court's omission of an instruction to the contrary.

In light of the foregoing, we conclude that the judgment of the Court of Appeal should be affirmed. Although the appellate court held that section 664(a) requires the personal willfulness, deliberation, and premeditation of the attempted murderer who is guilty as an aider and abettor, and further held that the trial court erred by failing to instruct the jury to make the requisite determination, it went on to hold that the error was harmless under either the reasonable-probability test of People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243 (Watson) or the harmless-beyond-a-reasonable-doubt test of Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (Chapman). The appellate court's interpretation of section 664(a) was erroneous, but because it found harmless the trial court's instructional omission, it nevertheless reached the correct result in upholding defendants' convictions and sentences. Accordingly, we shall affirm the judgment of the Court of Appeal.

I

This case arises from violent confrontations in the City of Fresno in 1995 between rival Hmong gangs, the Men or Menace of Destruction (MOD) and the Unstoppable or Unseen Criminals (USC).

Defendants Phia Lee and Johnson Xiong, who were MOD members or associates and were 14 and 15 years of age, respectively, were charged with two counts of murder and seven counts of attempted murder. It was alleged that the murders were committed under the multiple-murder special circumstance. It also was alleged that each attempted murder was willful, deliberate, and premeditated for purposes of section 664(a).² Finally, it was alleged as to each murder that each defendant personally used a firearm, and it was alleged as to each attempted murder that each defendant personally used a firearm and personally inflicted great bodily injury.

Trial was by jury. The central contested issue was identity, with the People asserting, and defendants denying, that defendants took part in the charged murders and attempted murders. Viewed in the light most favorable to the ensuing judgment, the evidence discloses the following circumstances:

On the evening of April 29, 1995, three persons approached 989 Burns Street in Fresno, at least two of them arriving at the scene armed. They encountered Kou H., who was 15 years of age, Cheng H. and Thanaka T., who were 14, and Sa H., who was 13. Kou, Cheng, and Sa were brothers; Thanaka was a friend. The oldest and most muscular of the three persons in question, who never was identified and was referred to only as the "big guy," asked Thanaka whether he had any marijuana. Thanaka said he did not. Suddenly, the big guy pulled out a gun and started firing. One or both of his two companions did the same. In fleeing, the three persons left Kou, Cheng, Sa, and Thanaka wounded, Cheng and Sa most seriously—the former paralyzed from the waist down, the latter with injuries that resulted in the loss of a kidney and other internal organs. Earlier that same day, defendants had attempted to challenge Kou, Cheng, Sa, and Thanaka, apparently because Kou, Cheng, and Sa had a cousin who may have been associated with USC. The evidence was relatively clear that defendant Xiong was one of the perpetrators of the shootings, but was much less clear as to defendant Lee.

Less than two months later, on the evening of June 21, 1995, two persons approached an apartment complex located at 232 North Valeria Street in Fresno, both of them armed. One of the residents of the complex was Thong Vang, a founder of USC. The complex itself was marked as USC "turf." Without warning, each of the two persons in question trained his gun at various individuals, opened fire, and then fled, with one shouting "MOD, fool" in order to claim responsibility. In their barrage, the pair hit 20-year-old Quang Minh Ha, 17-year-old Doua V., and 5- or 6-year-old Linda V., each of whom survived the attack. The pair also hit 14-year-old Blong Xiong and 7-year-old Sandy Vang, who died of their wounds. Extensive evidence in the form of admissions and eyewitness testimony identified defendants as the perpetrators.

On motion of the People, the trial court dismissed the allegations of personal infliction of great bodily injury related to the charges of attempted murder, because the evidence was insufficient to prove which of the defendants inflicted injury on which of the victims. The trial court then instructed the jury on, among other things, murder of both the first and the second degree; the multiple-murder special circumstance; attempted murder; willfulness, deliberation, and premeditation as to attempted murder for purposes of section 664(a); personal use of a firearm; and the liability of direct perpetrators and aiders and abettors as principals in a crime. The instructions included the following: "In order to prove the crime of attempted murder each of the following elements must be proved[:] [¶] 1. A direct but ineffectual act was done by one person towards killing another human being; and [¶] 2. The person committing such act harbored ... a specific intent to kill...." "If you find a defendant guilty of attempt to commit murder, you must further determine whether the attempt to commit murder was willful, deliberate, and premeditated, [¶] `Willful' means intentional. 'Deliberate' means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. `Premeditated' means considered beforehand." "Persons who are involved in committing a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation is equally guilty. Principals include: [¶] 1. Those who directly and actively commit the act constituting the crime, or [¶] 2. Those who aid and abet the commission of the crime." "A person aids and abets the commission of a crime when he or she, [¶] 1. With knowledge of the unlawful purpose of the perpetrator and [¶] 2. With the intent or purpose of committing or encouraging or facilitating the commission of the crime, ... [¶] 3. By act or advice aids, promotes, encourages or instigates the commission of the crime."

The jury found defendant Lee guilty of the murder of Blong Xiong and Sandy Vang in the first degree, with a true finding as to the multiple-murder special circumstance, with personal use of a firearm; it also found him guilty of the attempted murder of Quang Minh Ha, Doua V., and Linda V., with personal use of a firearm, and found that each attempted murder was willful, deliberate, and premeditated for purposes of section 664(a); and it found defendant Lee not guilty of the attempted murder of Kou H., Cheng H., Sa H., and Thanaka T.

The jury found defendant Xiong guilty of both of the murders in the...