People v. Tran

• Decision Date: 16 February 2018
• Docket Number: G053424
• Citation: 229 Cal.Rptr.3d 152,20 Cal.App.5th 561
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Andrew TRAN, Defendant and Appellant.

20 Cal.App.5th 561

229 Cal.Rptr.3d 152

The PEOPLE, Plaintiff and Respondent,

v.Andrew TRAN, Defendant and Appellant.

G053424

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

Filed February 16, 2018

As Modified on Denial of Rehearing March 19, 2018

David McNeil Morse, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

BEDSWORTH, J.

This is a case in which we order a remand to allow appellant to prepare for a hearing 25 years in his future. It is devoutly to be hoped this will someday be viewed as a reasonable step forward in penological and cultural development rather than too little, too late.

Appellant Andrew Tran was convicted of murdering and attempting to murder two rival gang members. On appeal, he contends his conviction for attempted murder must be reversed because the trial court gave the jury a confusing and inapt instruction on the kill zone theory. We reject this contention. However, appellant was only 16 years old when he committed his crimes, and we agree with him that the case must be remanded so he can make a record of information that will be relevant to his youthful offender parole hearing in 25 years. Thus, while we affirm the judgment in its entirety, we remand for further proceedings.

FACTS

On the night of March 19, 2011, appellant had a party at his house that was heavily attended by members of his gang. The party dispersed around midnight, but the revelers did not go home. Instead, they filed into several cars and headed to a pool hall in Westminster where several members of a rival gang were hanging out. Appellant drove to the pool hall in a white sedan with other members of his gang. As they were heading out, the front passenger gave appellant a gun, and he tucked it away in his car.

When appellant arrived at the pool hall, he parked by the other cars in his group. Then he and Jonathan Tieu walked up to the pool hall and made themselves visible to their rivals. It didn't take long before the two groups were exchanging hostile words in the parking lot. Witnesses to the exchange thought there was going to be a gang fight right then and there, but appellant and Tieu retreated to appellant's car, and their rivals got into their vehicles. Appellant then drove to the exit and positioned his car so he could see inside any vehicles that were leaving. When an SUV full of rivals passed through the exit, appellant said, "That's them." Appellant's front passenger Benjamin Nguyen told appellant to follow the SUV, and he did.

There were eight people inside the SUV, including passengers Scottie Bui and Roger James. As the vehicle travelled along Westminster Boulevard, appellant pulled alongside it. Nguyen rolled down his window and began yelling out gang-related taunts, and the people in the SUV did the same. Nguyen then pulled a gun and began firing at the SUV. One of the shots hit Bui in the head, killing him. Another shot hit James in the neck, but he survived. Investigators later recovered five expended cartridges at the scene.

Appellant was arrested shortly after the shooting. He initially denied any wrongdoing but eventually admitted his role in the incident, as described above. He also admitted having a history of antagonism toward James and seeing him at the pool hall when the two groups squared off before the shooting.

He was charged with first degree murder, attempted murder, shooting at an occupied vehicle and street terrorism. ( Pen. Code, §§ 187, subd. (a), 664/187, 246, 186.22, subd. (a).)¹ The prosecution alleged as a special circumstance that the murder was carried out to further the activities of appellant's gang. (§ 190.2, subd. (a)(22).) It also alleged firearm and gang enhancements with respect to the first three charges. (§§ 12022.53, subds. (d), (e)(1), 186.22, subd. (b)(1).) The jury acquitted appellant of first degree murder but convicted him of murder in the second degree. It found him guilty of the remaining charges and found the gun and gang allegations true. The trial court sentenced appellant to 40 years to life in prison for his crimes.

DISCUSSION

Kill Zone Theory

Appellant challenges his attempted murder conviction on the basis the trial court improperly instructed the jury on the kill zone theory of liability. In appellant's view, the kill zone theory was not applicable to the facts of his case, and the trial court worded its instruction in a confusing manner that amounted to "gibberish." While the instruction was inartfully worded, it was certainly not "gibberish." We believe the kill zone theory was amply supported by the evidence, and appellant could not possibly have been prejudiced by the way the instruction was phrased. We therefore uphold his conviction for attempted murder.²

Since he was not the shooter, appellant was prosecuted under aiding and abetting principles. Specifically, the prosecution theorized appellant was guilty of attempted murder because he directly assisted Nguyen in shooting James and/or because the shooting was a natural and probable consequence of the disturbance appellant caused at the pool hall. Appellant does not challenge the trial court's instructions pertaining to these theories. Instead, he focuses on the instructions pertaining directly to the attempted murder charge.

As to that charge, the trial court told the jury, "To prove that the defendant is guilty of attempted murder, the People must prove that: [¶] 1. The defendant took at least one direct but ineffective step toward killing another person; and [¶] 2. The defendant intended to kill that person." The court also instructed the jury:

"A person may intend to kill a specific victim or victims and at the same time intend to kill everyone in a particular zone of harm or kill zone. [¶] In order to convict the defendant of the attempted murder of Roger James, the People must prove that the defendant not only intended to kill Roger James but also either intended to kill Roger James or intended to kill everyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill Roger James or intended to kill Roger James by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Roger James."

Neither the prosecutor nor defense counsel mentioned the kill zone theory during closing arguments. However, during its deliberations, the jury sent the trial court a note asking, "1. Would [the defendant] have to had specifically targeted Roger James to be found guilty of attempted murder? [¶] 2. What if he targeted [the] entire kill zone without expressly thinking [of] Roger James?"

After consulting with counsel, the trial court told the jury, "1. Yes, if you find the kill zone theory applies. The kill zone theory applies only if the evidence shows the defendant intended to kill Roger James by killing everyone in the area in which Roger James was located. [¶] 2. On the other hand, you may find the defendant guilty of attempted murder if you find the attempt was made and the defendant had the intent to kill everyone in the car."

The first issue we must decide is whether the kill zone theory was applicable to the facts of this case. For the reasons explained in People v. Bland (2002) 28 Cal.4th 313, 121 Cal.Rptr.2d 546, 48 P.3d 1107 ( Bland ), we believe it was. Like the present case, Bland involved a gang-related shooting. Following a brief conversation with the victims, the defendant and his companion fired multiple shots at their car, killing the driver and wounding his two passengers. ( Id . at p. 318, 121 Cal.Rptr.2d 546, 48 P.3d 1107.) The evidence suggested the defendant may have only wanted to kill the driver, who was a gang member, and not his passengers, who were not. ( Id . at pp. 318-319, 121 Cal.Rptr.2d 546, 48 P.3d 1107.) Nonetheless, the jurors were told that even if they found that was the case, they could still convict the defendant of attempting to murder the passengers on the theory of transferred intent, in which case the intent to kill the driver would carry over to the passengers. ( Id . at p. 319, 121 Cal.Rptr.2d 546, 48 P.3d 1107.)

On appeal, the Supreme Court found that while the doctrine of transferred intent can be applied when the primary target is murdered and unintended victims are also killed, it does not apply when the unintended victims are only injured. ( Bland, supra , 28 Cal.4th at pp. 326-331, 121 Cal.Rptr.2d 546, 48 P.3d 1107.) Thus, it was improper for the trial court to instruct the jury on that doctrine. ( Ibid . ) However, Bland affirmed the defendant's convictions for attempted murder on the theory of concurrent intent encompassed in the kill zone theory. ( Ibid . )

As to that theory, the court explained, "although the intent to kill a primary target does not transfer to a survivor, the fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within ... the ‘kill zone.’ ‘The intent is concurrent ... when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim's vicinity. For example, an assailant who places a bomb on a commercial airplane intending to harm a primary target on board ensures by this method of attack that all passengers will be killed. Similarly, consider a defendant who intends to kill A and, in order to ensure A's death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group. The defendant has intentionally created a "kill zone" to ensure the death of his primary victim, and the trier...