People v. Mai

• Decision Date: 31 January 1994
• Docket Number: No. G012217,G012217
• Citation: 27 Cal.Rptr.2d 141,22 Cal.App.4th 117
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Dung Van MAI, Defendant and Appellant.

Page 141

27 Cal.Rptr.2d 141

22 Cal.App.4th 117

The PEOPLE, Plaintiff and Respondent, v. Dung Van MAI, Defendant and Appellant.

No. G012217.

Court of Appeal, Fourth District, Division 3, California.

Jan. 31, 1994.

Review Denied May 12, 1994.

Martin Nebrida Buchanan, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., and Esteban Hernandez, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

CROSBY, Associate Justice.

Convicted of first degree murder in the shooting death of his accomplice during a robbery gone awry, Dung Van Mai complains of the trial court's failure to modify CALJIC No. 8.12, challenges the constitutionality of CALJIC No. 2.90, and attacks the sufficiency of the evidence to support one of four convictions for attempted robbery. We agree CALJIC No. 8.12 is deficient in several respects and the court should have modified it as requested by the defense. But, finding no prejudice or other error, we affirm.

I

Posing as customers, Mai and Bao Lau browsed in 62-year-old Li Thi Nguyen's fabric store for approximately 15 minutes. Then Mai grabbed Nguyen, placed a gun to her head, and dragged her toward the back office where her son, Quy Doc Nguyen, operated a gold business. Present in the office with Quy Doc were his brother, Thanh Quoc Nguyen, and Thanh Quoc's nephew, Khoa Anh Nguyen. Three loaded handguns were hidden in the room, and the safe held the morning's sizable gold purchase.

Mai and Nguyen entered the office, followed by Lau, who also brandished a pistol. Mai threatened to shoot all the victims. He hit and kicked Thanh Quoc and ordered him to lie on the floor. He roughly threw Nguyen, whom he had been striking with the handgun, on top of her son and then forced Quy Doc to lie on top of his mother and brother. Lau, in the meantime, ordered Khoa Anh to the floor and continued to display his weapon.

At Mai's direction Lau left the office and returned with two duffel bags. He extracted duct tape from one and taped Nguyen's mouth, but immediately removed the tape. He then began to tape Khoa Anh's hands behind his back.

As Mai continued to hit Nguyen, Thanh Quoc suddenly stood up, grabbed the robber's gun hand, and yelled for his brother to arm himself. Quy Doc retrieved a 9mm semi-automatic weapon from the desk, pushed the alarm button, and assumed a firing posture.

According to Quy Doc, Lau then fired at him. The shot missed, but Quy Doc's return volley mortally wounded Lau. Quy Doc redirected his aim as Mai struggled with Thanh Quoc. He fired several rounds, wounding and disarming Mai.

Mai was charged with Lau's murder, four counts of attempted robbery, and false imprisonment of Nguyen. A prior serious felony was also alleged.

The defense did not dispute the attempted robbery charges. ¹ The false imprisonment count was defended in a matter-of-fact fashion. ² The prior serious felony allegation was bifurcated and tried to the court after the jury was dismissed.

Both sides devoted considerable energy to the murder count, however. Because Lau was killed by one of the victims, Mai's criminal culpability for the accomplice's death was based on the provocative act doctrine. Court and counsel discussed various Supreme Court decisions from which the doctrine evolved (e.g., People v. Washington (1965) 62 Cal.2d 777, 44 Cal.Rptr. 442, 402 P.2d 130; People v. Gilbert (1965) 63 Cal.2d 690, 47 Cal.Rptr. 909, 408 P.2d 365; Taylor v. Superior Court (1970) 3 Cal.3d 578, 91 Cal.Rptr. 275, 477 P.2d 131; People v. Antick (1975) 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43; In re Joe R. (1980) 27 Cal.3d 496, 165 Cal.Rptr. 837, 612 P.2d 927; People v. Caldwell (1984) 36 Cal.3d 210, 203 Cal.Rptr. 433, 681 P.2d 274) and agreed CALJIC No. 8.12, the standard instruction in cases where the killer of a felony accomplice is someone other than the co-perpetrator of the crime, was deficient for failing to address the proximate cause question. ³ A lengthy chambers meeting focused on that point and several others, including defense suggestions for additional instructions.

Mai's counsel proposed a modest modification to CALJIC No. 8.12 (the insertion, in two places, of the words "life-endangering" to modify "provocative act") and a series of special instructions designed to advise the jury that a provocative act must be both life threatening--something more than the force and threat that is part and parcel of an armed robbery--and the proximate cause of the killing. Mai's attorney also argued, "the jury should be instructed not to--that they should not consider any provocative acts of the dead person in attaching criminal liability to the one surviving accomplice." ⁴

Ultimately, the judge rejected the special instructions proposed by defense counsel and announced he would modify CALJIC No. 8.12 by advising the jurors the prosecution was also required to prove "the provocative act was the proximate cause of death. To be considered a proximate cause of [Lau's] death, the acts of the defendant Mai must have been a 'substantial factor' contributing to the result." While defense counsel objected on the basis the modification "deals with the joint action of [Lau] and Mai, and that goes back to the argument that I've already talked about basically, that I don't think that's a correct statement of the law," he agreed the standard proximate cause instruction, CALJIC No. 3.41, ⁵ could not "be more tailored to fit what we need it for." Accordingly, that instruction was read immediately after CALJIC No. 8.12.

Defendant was convicted of all charged crimes. The enhancement was found to be true.

II

Mai launches a several-pronged attack against CALJIC No. 8.12, the standard instruction in murder prosecutions where the decedent is killed during the perpetration of a felony and the killer is someone other than the decedent's accomplice. Although Supreme Court opinions treating with the provocative act doctrine span a 28-year period, we have not discovered an appellate decision that has delved into the whys and wherefores of CALJIC No. 8.12. We will find, however, that the instruction has not kept up with the times and is deficient in three respects: It fails to define "provocative act" in plain English as conduct highly likely to result in death, to advise jurors to disregard any provocative act by the decedent in assessing defendant's criminal culpability, and to adequately explain that the provocative act of defendant or a surviving co-felon must be a substantial factor in the killing. ⁶

A

Mai attacks the failure of CALJIC No. 8.12 to define provocative act and the trial court's refusal to do so in traditional implied malice language, e.g., that a provocative act is intentional conduct whose natural consequences are dangerous to life, committed with conscious disregard for life. (See, e.g., CALJIC No. 8.11; People v. Dellinger (1989) 49 Cal.3d 1212, 264 Cal.Rptr. 841, 783 P.2d 200.) The Attorney General dismisses the contention with the following assertion: "[T]here are two different standards regarding what constitutes provocative conduct. The first standard is enunciated in Taylor v. Superior Court, supra, 3 Cal.3d [at p.] 583 [91 Cal.Rptr. 275, 477 P.2d 131]: '[T]he central inquiry in determining criminal liability for a killing committed by a resisting victim or police officer is whether the conduct of a defendant or his accomplices was sufficiently provocative of lethal resistance to support a finding of implied malice.' The second standard refers to a 'life threatening act' on which liability is premised. (In re Joe R., supra, 27 Cal.3d at p. [505, 165 Cal.Rptr. 837, 612 P.2d 927].) In looking at the two standards to determine which definition of provocative conduct it should apply, the trial court[,] guided by People v. Superior Court (Bennett ) [1990] 223 Cal.App.3d [1166,] 1172 properly chose to follow the Taylor standard."

But Taylor and Joe R. do not set forth two competing standards, as the Attorney General claims. ⁷ Rather, those decisions discuss two discrete elements of the provocative act doctrine. The first is whether a surviving co-felon intentionally committed a life-threatening act; the second is whether that act reasonably provoked lethal resistance by a victim, the police, or a bystander.

We have encountered no Supreme Court opinion discussing the provocative act doctrine in terms other than life-endangering conduct. And that is to be expected: Unlike the felony-murder rule which holds a felon strictly liable for a killing he or she--or a surviving accomplice--commits during the perpetration or attempt to perpetrate particular crimes, an element of the provocative act doctrine is implied malice. When the doctrine was still nascent, the Supreme Court wrote, "Except when the common law felony-murder doctrine is applicable, an essential element of murder is an intent to kill or an intent with conscious disregard for life to commit acts likely to kill." (People v. Washington, supra, 62 Cal.2d at p. 780, 44 Cal.Rptr. 442, 402 P.2d 130.) Several months later, the Supreme Court formulated the "principles [to] be invoked to convict a defendant of first degree murder for a killing committed by another." ( People v. Gilbert, supra, 63 Cal.2d at p. 704, 47 Cal.Rptr. 909, 408 P.2d 365.) The first element was "Proof of malice aforethought.... Such malice is implied under Penal Code section 188 when the defendant or his accomplice for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death." (Ibid., internal quotation marks omitted.) In other words, it is a life-endangering act by a defendant or surviving co-felon that supplies the requisite implied malice to support a murder conviction.

Every other Supreme Court opinion treating with the provocative act...