P. v. Thuy and Moun

Filed 10/12/07 P. v. Thuy and Moun CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeals from judgments of the Superior Court of Orange County, Frank F. Fasel, Judge. Affirmed as modified.

Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant Zenith Thuy.

Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant Kimsan Moun.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

Defendants Zenith Thuy and Kisman Moun were each convicted of several offenses, including one count of first degree murder based on the intentional firing of a gun from a car at someone outside the vehicle with intent to kill and three counts of willful, deliberate, and premeditated murder. The jury made numerous findings, including a special circumstance of murder by discharge of a firearm from a motor vehicle and intentional discharge of a firearm causing death or great bodily injury under Penal Code section 12022.53, subdivision (d) (all further statutory references are to this code) as to each of the foregoing crimes.

On the murder charge, the court sentenced Thuy to life in prison without the possibility of parole plus a consecutive 25-year enhancement under section 12022.53, subdivision (d). On the attempted murder counts Thuy was sentenced to life without the possibility of parole. The court imposed a $5,000 parole revocation fine on both defendants. Except for the fine, Mouns sentence has no bearing on the appeal.

Thuy contends the special circumstance of discharging a firearm from a motor vehicle contravenes the Eighth and Fourteenth Amendments because its elements are the same as those for the crime itself, thereby making it impossible for the jury to distinguish between an offender subject to life without parole from one who is not. Similarly, he argues the consecutive 25-years-to-life sentence for first degree murder based on the enhancement violates double jeopardy because the underlying crime and the enhancement are based on the same facts. Finally, he asserts the parole revocation fine is improper because he was sentenced to life without parole.

Moun joins in Thuys arguments and also contends that the court erred in giving the so-called kill zone instruction because it allowed the jury to find Moun, an aider and abettor, vicariously liable for murder and attempted murder based on Thuys intent.

We agree it was improper to impose the parole revocation fines and modify the judgments to strike them but otherwise affirm the judgments.

FACTS

Because the issues are primarily legal, a detailed recitation of the facts is unnecessary. Suffice it to say that one evening Thuy and Moun, both admitted members of the criminal street gang Tiny Rascal Gang (TRG), and four other members of TRG, including Anacleto Lee Mendoza, encountered several members of the Caddy Lost Boys (CLB) gang at a billiards hall. Months earlier CLB members had attacked a TRG member at the hall.

Later, as the CLB members were leaving, TRG members also left, with Thuy and Moun in one car and Mendoza in another. As Thuy left he told Mendoza to call him when the CLB car departed. When Mendoza did so, Thuy said, All right. Okay. I am on him. Mendoza testified he heard Moun excitedly say, Hey, keep up on them, keep up on them. Thats them, thats them. Keep up on them, watch them, watch them. Shortly after the CLB car left, Thuy fired multiple shots at it, killing the driver and wounding a passenger.

A gang expert testified that when three members of a gang are in a car pursuing rival gang members for the purpose of retaliation, all of them are expected to back up the others in committing the crime. Each has a role, including a driver and a shooter; the third person, in addition to backing up the driver and the shooter, is the eyes and ears of the gang.

DISCUSSION

1. Thuys Appeal

a. Special Circumstance Allegation

Thuy contends the special circumstance of discharging a firearm from a motor vehicle violates the Eighth Amendment because its elements are identical to those for first degree murder of shooting from a moving car for which defendants were convicted. He relies on the principle that a statute providing for the death penalty must narrow the class of people who may be sentenced to death from all others convicted of murder. We are not persuaded.

For an aggravating sentencing factor to pass constitutional muster, it must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder. (Zant v. Stephens (1983) 462 U.S. 862, 877 [103 S.Ct. 2733, 77 L.Ed.2d 235], fn. omitted.) Here the death penalty was not requested or imposed. Thus, we are not called to decide this issue. (See People v. Rodriguez (1998) 66 Cal.App.4th 157, 165-166 [the defendant, convicted of murder by intentional firing of weapon from inside car with intent to kill with special circumstance based on same facts and sentenced to life without parole, argued enhancement not permissible basis for death penalty because no premeditation required; court declined to address argument because death was neither sought nor imposed].)

People v. Estrada (1995) 11 Cal.4th 568, on which Thuy relies to support his argument that it makes no difference the prosecution did not seek the death penalty, is distinguishable. There the court was analyzing a United States Supreme Court case, Tison v. Arizona (1987) 481 U.S. 137 [107 S.Ct. 1676, 95 L.Ed.2d 127], that was the basis for a California felony-murder special circumstance statute, section 190.2, subdivision (d). That section, amended pursuant to Proposition 115, eliminated the requirement that the prosecution establish an accomplice had the intent to kill to obtain a true finding on a felony-murder special circumstance allegation. (People v. Estrada, supra, 11 Cal.4th at p. 575.) The amended statute provides that if a defendant, who is not the actual killer, acts with reckless indifference and is a major participant in the underlying felony, he or she may be sentenced to either death of life without parole. (Ibid.)

Tison considered whether it was constitutional to impose the death penalty on an accomplice who did not have the intent to kill. (People v. Estrada, supra, 11 Cal.4th at p. 575.) Estrada, in which defendant was sentenced to life without parole, determined that Tison is the source of the language of section 190.2[, subdivision ](d), and the constitutional standards set forth in that opinion are therefore applicable to all allegations of a felony-murder special circumstance, regardless of whether the People seek and exact the death penalty or a sentence of life without parole. (Id. at pp. 575-576.)

Our case does not deal with section 190.2, subdivision (d) nor is section 12022.53, subdivision (d), which is the subject of this appeal, based on Tison. Estrada does not mandate that we take up the issue Thuy raised.

b. Sentence for Enhancement

Thuy challenges his 25-years-to-life sentence for the enhancement of discharging a firearm while committing a felony ( 12022.53, subd. (d)), claiming it violates double jeopardy and section 654s prohibition against multiple punishment for the same offense and therefore should be stayed. Recent California Supreme Court cases tell us otherwise.

In People v. Palacios (2007) 41 Cal.4th 720 the defendant was convicted of attempted premeditated murder, kidnapping for robbery and for carjacking, robbery, and carjacking. The jury found true he personally inflicted great bodily injury and discharged a gun when committing those crimes. The court sentenced him to three consecutive terms of life with parole and a 25-years-to-life enhancement for each conviction pursuant to the section 12022.53, subdivision (d). On appeal the defendant argued the three enhancements violated section 654. The court disagreed.

In so doing it reviewed the language of the section and its legislative intent. The relevant portion of section 12022.53, subdivision (d) provides: Notwithstanding any other provision of law, any person who, in the commission of a [specified] felony . . . personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment . . . for 25 years to life. The court determined the language made clear that the legislature clearly intended the additional sentence be imposed. (People v. Palacios, supra, 41 Cal.4th at p. 725.)

In addition, it considered and rejected an argument defendant makes here, that the notwithstanding language of the section did not eliminate the requirements of section 654. Section 12022.53 does not modify its [n]otwithstanding any other provision of law language with any express or implicit reference to section 654. Instead, the Legislature has unequivocally stated that [n]otwithstanding any other provision of law, a person who uses or discharges a firearm in the commission of a qualifying offense shall be punished by a section 12022.53 enhancement. . . .  This command can literally followed without reference to section 654. Indeed, under the plain meaning of the

phrase . . . , it must be. (People v. Palacios, supra, 41 Cal.4th at p. 730.)

People v. Izaguirre (2007) 42 Cal.4th 126 reaches the same result in a slightly different setting. There the defendant was convicted of first degree murder based on a drive-by shooting and three counts of willful, deliberate and premeditated attempted murder with firearm enhancements. The court sentenced the defendant to life without parole plus 25 years to life on the enhancement. The court rejected the defendants argument that the enhancement should have been stricken based on the prohibition against multiple convictions for the same conduct. (Id. at pp. 132-133) By definition, an enhancement is an additional term of imprisonment added to the base term. [Citations.] For that reason alone, an enhancement cannot be equated with an offense. [Citation.] (Id. at p. 134.) In affirming the additional sentence for the special circumstance the court also stated that the enhancement did not violate double jeopardy. (Ibid.)

Defendant cannot prevail on his claim.

c. Parole Revocation Restitution Fine

Defendant also contends the parole revocation fine should be stricken because he was sentenced to life without parole. The Attorney General counters that because defendant was also sentenced to life with the possibility of parole, 15 years to life, and some determinate sentences the fine is proper. We agree with defendant.

Section 1202.45 provides: [W]here a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine . . . assess an additional parole revocation restitution fine in the same amount . . . .  This additional parole revocation restitution fine shall be suspended unless the persons parole is revoked.

In People v. Oganesyan (1999) 70 Cal.App.4th 1178 the defendant was sentenced to both life without parole for a first degree special circumstance murder and an indeterminate sentence for second degree murder. He made the same argument as defendant does here. The appellate court found the trial court had properly refused to impose a parole revocation fine based on the legislative intent and the language of the statute. The intent of the statute is to recoup some costs of restitution to victims from parolees who violate their parole. (Id. at p. 1184.) It is highly unlikely there would be any recovery from a prisoner serving a life without parole sentence, even if there is some conceivable parole eligibility, such as if parole was granted by executive clemency. (Id. at pp. 1184-1185.) [T]here is no evidence the Legislature intended that its cost recoupment purposes were to apply under such an extremely limited set of circumstances. (Id. at p. 1185.) The two other published cases discussing this issue on the same set of facts reach the same result. (People v. Jenkins (2006) 140 Cal.App.4th 805, 819; People v. Petznick (2004) 114 Cal.App.4th 663, 687 [attorney general conceded inapplicability of statute].)

The Attorney General maintains the courts analysis in Oganesyan is flawed and we should disregard its holding. He argues the unlikelihood of parole does not mean it is impossible; in fact that is the reason for imposing indeterminate sentences as well as determinate. He contends there is no reason to believe the Legislature intended to treat parole revocation fines differently.

To counter, defendant points to language in Oganesyan that the language of section 1202.45 indicates that the overall sentence is the indicator of whether the additional restitution fines is to be imposed. (People v. Oganesyan, supra, 70 Cal.App.4th at p. 1185.) The section provides that it applies to one whose sentence includes a period of parole. ( 1202.45.) At present, defendants sentence does not allow for parole. When we apply a commonsense interpretation to the language of section 1202.45 [citations], we conclude that because the sentence does not presently allow for parole and there is no evidence it ever will, no additional restitution fine must be imposed. (People v. Oganesyan, supra, 70 Cal.App.4th at p. 1185.) This analysis is more persuasive than the Attorney Generals.

The fines should not have been imposed and we order the judgments to be modified to reflect this.

2. Mouns Appeal

Moun was prosecuted on the theory he aided and abetted Thuy in committing the charged crimes. He contends the court erred by giving CALJIC No. 8.66.1, the so-called kill zone instruction, without also sua sponte giving CALJIC No. 3.02 on the natural and probable consequences doctrine as it applies to Mouns liability as an aider and abettor, because this allowed the jury to convict him of first degree murder and three counts of attempted murder without finding he had the required intent. We are not persuaded.

In reviewing the purportedly erroneous instructions, we inquire whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. [Citations.] (People v. Frye (1998) 18 Cal.4th 894, 957; see also People v. Mayfield (1997) 14 Cal.4th 668, 777 [same test for ambiguous instruction].) To do so we review the challenged instructions to ascertain whether they state the applicable law and how the jury reasonable understood them. (People v. Kelly (1992) 1 Cal.4th 495, 525.) We review the instruction at issue in the context of the entire charge. (People v. Frye, supra, 18 Cal.4th at p. 957.)

CALJIC No. 8.66.1 as given states: A person who primarily intends to kill one person may also concurrently intend to kill other persons within a particular zone of risk. This zone of risk is termed the kill zone. [] The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victims vicinity. Whether a perpetrator actually intended to kill the victim either as a primary target or as someone within a kill zone is an issue for you to decide.

[A]n aider and abettor is a person who, acting with (1) knowledge of the unlawful purpose of the perpetrator[,] and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates[] the commission of the crime. [Citation.] (People v. Prettyman (1996) 14 Cal.4th 248, 259.) To prove aiding and abetting, the prosecution must show that the defendant acted with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. [Citation.] . . .  . . .  [W]hen the charged offense and the intended offensemurder or attempted murderare the same, i.e., when guilt does not depend on the natural and probable consequences doctrine, . . . the aider and abettor must know and share the murderous intent of the actual perpetrator. (People v. McCoy (2001) 25 Cal.4th 1111, 1118.)

The prosecution argued Thuy, as the shooter, and Moun, as an aider and abettor, were liable for Chungs murder and the attempted murder of the three passengers in the car based on a kill zone theory. Moun argues that, in addition to giving CALJIC No. 8.66.1, the court should have sua sponte given an instruction that Moun had to separately intend to kill Chung or someone within the kill zone in order to be liable as an aider and abettor. Otherwise, he continues, the jury could have convicted him based on an inference as to Thuys intent without a separate finding as to whether Moun had the same mental state. There are several flaws in Mouns contention.

First, Moun asserts [t]he wording of the instruction anticipates that the shooters primary target is the murder victim and seeks to impose liability upon the shooter for the injury suffered by others in proximity. He criticizes the prosecutions argument that it did not matter who Thuys primary target was because the evidence showed Chung was not. But the instruction specifically requires the jury to determine [w]hether a perpetrator actually intended to kill the victim either as a primary target or as someone within a kill zone . . . . (CALJIC No. 8.66.1.)

Second, as he concedes, Moun did not object to the kill zone instruction or ask for an additional instruction as to his intent specifically in connection with it. He acknowledges the general rule that required him to do so or forfeit his right to raise the issue on appeal. (People v. Hart (1999) 20 Cal.4th 546, 622.) He points, however, to the trial courts obligation to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request. [Citation.] (People v. Dominguez (2006) 39 Cal.4th 1141, 1158.) He also argues that because the instruction incorrectly stated the law and because it is relatively new and yet to be thoroughly examined by courts, we should review despite the waiver.

Considering this issue on the merits the court did not err. Although it did not give a specific instruction as to Mouns intent in connection with the kill zone instruction, it did instruct with CALJIC No. 3.01 (Definition of Aiding and Abetting), which provides, in part, that an aider and abettor must have the intent or purpose of committing or encouraging or facilitating the commission of the crime . . . . [] . . .  Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.

The court also gave CALJIC No. 8.80.1 (Introduction to Special Circumstances) which, in setting out requirements for finding special circumstances of a drive-by shooting or murder committed to benefit a street gang, states: If you find that a defendant was not the actual killer of a human being, you cannot find the special circumstance to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such defendant, with the intent to kill, aided, abetted, counseled or assisted any actor in the commission of the murder in the first degree. [] You must decide separately as to each of the defendants the existence or nonexistence of each special circumstance alleged in this case. If you cannot agree as to both defendants, but can agree as to one of them, you make your finding as to the one [upon] which you do agree.

These instructions set out the requirement that the jury had to find Moun had his own intent to commit the crimes. In addition, the kill zone instruction specifically refers to the intent of the perpetrator, in this case Thuy. (CALJIC No. 8.66.1.) The jury is presumed to have followed the instructions. (People v. Smithey (1999) 20 Cal.4th 936, 961.)

Further, the prosecutions closing argument specifically stated that, with respect to the murder and attempted murders, Moun had the same mens rea as Thuy. And Mouns lawyer argued that his presence in the car alone did not make him guilty. The jury had to find all the elements of aiding and abetting, including Mouns own individual intent. Thus, there was no error in connection with the kill zone instruction.

DISPOSITION

Each judgment is modified to strike the parole revocation restitution fine under Penal Code section 1202.45. In all other respects, each judgment is affirmed. The clerk of the superior court shall prepare an amended abstract of judgment to reflect these modifications, and forward the amended abstracts of judgment to the Department of Corrections and Rehabilitation.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

BEDSWORTH, J.

OLEARY, J.

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