Filed 7/16/26 In re A.T. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re A.T., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent, G065166
v. (Super. Ct. No. 20DL0047)
A.T., OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of
Orange County, Vibhav Mittal, Judge. Affirmed. Request for Judicial Notice.
Granted as modified.
Reed Webb, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General,
Eric A. Swenson, Michael D. Butera and Marvin E. Mizell, Deputy Attorneys
General, for Plaintiff and Respondent.
* * *
INTRODUCTION
In June 2015, A.T. (Appellant) was convicted of second degree
murder and attempted murder. He was 16 years old at the time of the
offenses, and, in January 2020, his case was transferred to the Orange
County juvenile court, which found to be true the allegations that he had
committed second degree murder and attempted murder. In May 2022, after
the juvenile court terminated wardship and all other juvenile proceedings,
Appellant filed a petition for resentencing pursuant to Penal Code section
1172.6.1 After conducting an evidentiary hearing under section 1172.6,
subdivision (d), the trial court denied Appellant’s resentencing petition.
Appellant appeals from the order denying his petition for
resentencing. He contends the evidence was insufficient to support a
conviction for aiding and abetting murder and attempted murder. We
conclude substantial evidence supports a finding that Appellant committed
second degree murder and attempted murder as a direct aider and abettor.
We therefore affirm.
FACTS
The facts are taken from the reporter’s transcript from the prior
appeal, People v. Tran (2018) 20 Cal.App.5th 561 (Tran). The juvenile court
admitted the reporter’s transcript into evidence at the section 1172.6 hearing
as exhibit 1.
Appellant has requested that we take judicial notice of “four
volumes” of the reporter’s transcript filed in Tran, supra, 20 Cal.App.5th at p.
561. As Respondent points out, the reporter’s transcript in that matter was in
1 Code references are to the Penal Code.
2
five volumes, not four. We grant the request for judicial notice as modified to
include all five volumes of the reporter’s transcript.
Appellant, who was born in December 1994, was an active
participant, though not a member, of the criminal street gang Tiny Rascals
Gang (TRG). The Hellside gang is an ally of TRG. Rivals of TRG include the
Asian Family (AF), the Power of Vietnamese (POV), and Viets Together (VT)
gangs.
In 2009, Appellant vandalized a van belonging to R.J., whom
Appellant knew was an AF member. Appellant was retaliating against R.J.
for having previously “hit up” Appellant. A gang “hit up” typically involves
asking a perceived rival gang member “where are you from” or “who do you
claim,” and, depending upon the response, could escalate into violence.
Appellant later told a police investigator that he had “beef” with R.J. On the
night before the murder in this case, Appellant and his cousin S.A. got into a
fistfight with AF members at a karaoke bar.
On the night of March 19, 2011, Appellant hosted a party at his
house that was attended by other TRG members as well as members of the
Hellside street gang. At some point, Appellant and four other partygoers left
the party in Appellant’s silver Lexus and drove off to a pool hall. Appellant
sat in the driver’s seat. A member or associate of the Hellside gang, B.N., sat
in the front passenger seat. Seated in the rear seats were J.T. (a TRG
member or participant), Appellant’s cousin S.A., and Appellant’s aunt, L.H.,
who was 14 years of age at the time (Appellant is the son of L.H.’s sister).
B.N. was holding a gun. Before leaving Appellant’s house, B.N.
handed the gun to Appellant, who placed the gun somewhere in the car.
At about 2:00 a.m., Appellant and five or six other cars carrying
people from the party at Appellant’s house arrived at the pool hall parking
3
lot. Appellant got out of his car, walked up to the pool hall, and “called out”
and “had words with” the people inside. Inside the pool hall were J.N., his
brother, two cousins, Scott Bui (also known as “evil” or “evo”), and R.J.
(Appellant’s nemesis). Appellant later told a police detective that he got out of
his car, walked up to the pool hall, and, looking through windows, saw a
group of AF gang members, including R.J. When Appellant returned to his
car, he “was upset” and said “their enemies” were inside.
As J.N. and his group filed out of the pool hall, Appellant and his
group were waiting for them in the parking lot. Appellant saw R.J. come out
of the pool hall. J.N. recognized one of the cars in the parking lot—a Lexus—
from the fistfight at the karaoke club the previous day. J.N. and his group
faced Appellant’s group in the parking lot, and the two groups exchanged
words. Somebody in Appellant’s group yelled “T.R.G., all day, every day,”
“T.R.G., what’s up,” and “[f]uck A.F.”
The two groups dispersed and everyone returned to their
respective vehicles. J.N., his brother, his cousins, R.J., and Bui, got into a
black or silver SUV. Appellant drove to the parking lot exit and positioned his
car so that, along with another car from his group, the exit was nearly
barricaded. Each vehicle leaving the parking lot had to come to a complete
stop before being permitted to exit. Appellant turned on the high beams of his
headlights so that he could see the occupants of each vehicle. As one car left
the parking lot, Appellant said, “[t]hat’s not them.” As a second car—the SUV
with J.N.’s group—passed by, Appellant said, “[t]hat’s them.” B.N. told
Appellant, “[f]ollow them.” Appellant did so.
Appellant drove out of the parking lot and followed the SUV.
Appellant’s car was to the side of, and just behind the SUV. B.N. yelled at the
people in the SUV, and they yelled gang-related words in response. B.N. then
4
told Appellant to “speed up.” Appellant did so and, as he was pulling forward,
B.N. fired the gun about six times at the SUV.
Appellant drove off to a neighborhood where he met up with
other people who had been at the party. The SUV sped up and drove off down
the street. The occupants of the SUV soon realized that two passengers in the
rear seat, Bui and R.J., had been injured. The SUV was driven to a hospital,
where Bui was carried into the emergency room. Bui died from a gunshot
wound to the head. R.J. suffered a gunshot wound to the neck and survived.
PROCEDURAL HISTORY
I.
Conviction, Appeal, and Transfer to Juvenile Court
In June 2015, a jury found Appellant guilty of four crimes which
included, as relevant here, the second degree murder of Bui and the
attempted murder of R.J. The jury also found a number of enhancements to
be true, including gang enhancements alleged as to the second degree murder
and attempted murder. The trial court sentenced Appellant to an aggregate
term of 40 years to life in state prison, which included, as relevant here, 15
years to life for second degree murder and a seven-year term for attempted
murder to run concurrent with the term for second degree murder.
In Tran, supra, 20 Cal.App.5th at pp. 568, 571, a panel of this
court affirmed the judgment but remanded the case pursuant to People v.
Franklin (2016) 63 Cal.4th 261 for the limited purposed of affording both
parties the opportunity to make a record of information that might be
relevant to a future parole board hearing under section 3051.
In January 2020, the Orange County juvenile court accepted the
transfer of the case from the court of criminal jurisdiction pursuant to
Proposition 57, the Public Safety and Rehabilitation Act of 2016 (Cal. Const.,
5
art. I, § 32). In May 2020, the juvenile court found, as a matter of law, all of
Appellant’s original judgment to be true, including the commission of second
degree murder and attempted murder. The juvenile court declared Appellant
to be a ward and stayed any commitment to the California Department of
Corrections and Rehabilitation’s Division of Juvenile Justice (DJJ). The
juvenile court granted appellant probation, and he was accepted into the
Youth Development Court.
In May 2022, the juvenile court found that Appellant had
successfully completed Youth Development Court, vacated the DJJ
commitment order, and terminated Appellant’s wardship and all other
proceedings as a minor.
II.
Resentencing Petition Proceedings
Following the termination of juvenile court proceedings,
Appellant filed a section 1172.6 petition that contested the true findings on
the second degree murder and attempted murder allegations. In August
2022, the juvenile court found that Appellant had made a prima facie case for
relief and issued an order to show cause. An evidentiary hearing under
section 1172.6, subdivision (d) was conducted on December 13, 2024, and
January 3, 2025. The court admitted into evidence the reporter’s transcript
from Tran, supra, 20 Cal.App.5th 561. At the conclusion of the hearing, the
court denied Appellant’s section 1172.6 petition. The court found “there’s
enough evidence to prove beyond a reasonable doubt that [Appellant] aided
and abetted Mr. Benjamin Nguyen in the murder of Scottie Bui and the
attempted murder of [R.G.].”
6
DISCUSSION
I.
Overview of Resentencing Under Section 1172.6
By legislation effective January 1, 2019, the Legislature amended
the felony murder rule and eliminated the natural and probable
consequences theory of liability as a basis for a murder conviction. (Sen. Bill
No. 1437 (2017–2018 Reg. Sess.) Stats. 2018, ch. 1015, § 4; see People v. Reyes
(2023) 14 Cal.5th 981, 984 (Reyes).) The felony murder rule was amended “to
ensure that murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human life.” (Stats.
2018, ch. 1015, § 1, subd. (f); see § 189, subd. (e) (3).) Section 188 was
amended to provide that, except in cases of felony murder, “in order to be
convicted of murder, a principal in a crime shall act with malice
aforethought.” (§ 188, subd. (a)(3) as amended by Stats. 2018, ch. 1015, § 2.)
Section 1172.6 creates a procedural mechanism by which those
convicted of murder, attempted murder, or manslaughter who could not be
convicted of murder or attempted murder under the law as amended could
retroactively seek relief. (People v. Lewis (2021) 11 Cal.5th 952, 957.) Section
1172.6 provides, “[a] person convicted of felony murder or murder under the
natural and probable consequences doctrine or other theory under which
malice is imputed to a person based solely on that person’s participation in a
crime, attempted murder under the natural and probable consequences
doctrine, or manslaughter may file a petition with the court that sentenced
the petitioner to have the petitioner’s murder, attempted murder, or
manslaughter conviction vacated and to be resentenced on any remaining
counts.” (§1172.6, subd. (a).)
7
To obtain relief under section 1172.6, a petitioner must file a
petition alleging these three conditions have been met: (1) the petitioner was
convicted based on a pleading “that allowed the prosecution to proceed under
a theory of felony murder, murder under the natural and probable
consequences doctrine or other theory under which malice is imputed to a
person based solely on that person’s participation in a crime” (§ 1172.6, subd.
(a)(1)); (2) the petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or plea agreement (id., subd. (a)(2)); and
(3) the petitioner could not now be convicted of murder or attempted murder
as those offenses are presently defined (id., subd. (a)(3)).
A defendant convicted of attempted murder is eligible for
sentencing relief under section 1172.6 if that conviction was based on the
natural and probable consequences doctrine. (§ 1172.6, subd. (a); People v.
Coley (2022) 77 Cal.App.5th 539, 548.) A defendant convicted of attempted
murder either as an actual perpetrator or as a direct aider and abettor is not
eligible for relief. (People v. Cortes (2022) 75 Cal.App.5th 198, 204.)
If the court determines the petitioner has made a prima facie
showing of entitlement to relief, the court must issue an order to show cause
and hold a hearing “to determine whether to vacate the murder, attempted
murder, or manslaughter conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same manner as if
the petitioner had not previously been sentenced.” (§ 1172.6, subd. (d)(1).) “At
the hearing to determine whether the petitioner is entitled to relief, the
burden of proof shall be on the prosecution to prove, beyond a reasonable
doubt, that the petitioner is guilty of murder or attempted murder under
California law as amended by the changes to Section 188 or 189 made
effective January 1, 2019.” (Id., subd. (d)(3).) At the evidentiary hearing, the
8
resentencing court sits as an independent fact finder. (People v. Vargas (2022)
84 Cal.App.5th 943, 951.)
If the prosecution does not sustain its burden of proof under
section 1172.6, subdivision (d)(1), then the court must vacate the prior
conviction and any allegations and enhancements attached to that conviction
and resentence the petitioner on the remaining charges. (§ 1172.6, subd.
(d)(3).)
II.
Standard of Review
A trial court’s denial of a section 1172.6 petition following a
hearing under section 1172.6, subdivision (d) is ordinarily reviewed under the
substantial evidence standard. (Reyes, supra, 14 Cal.5th at p. 988.) Under
that standard, we review the record in the light most favorable to the order
denying the petition to determine whether the evidence is reasonable,
credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. (Ibid.)
“‘Substantial evidence includes circumstantial evidence and any
reasonable inferences drawn from that evidence.’” (People v. Brooks (2017) 3
Cal.5th 1, 57.) “‘Evidence of a defendant’s state of mind is almost inevitably
circumstantial, but circumstantial evidence is as sufficient as direct evidence
to support a conviction.’” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.)
We presume in support of the judgment the existence of every
fact the trier could reasonably deduce from the evidence. (People v.
Grandberry (2025) 116 Cal.App.5th 934, 946.) We imply any findings
necessary to support the trial court’s order. (People v. Therman (2015) 236
Cal.App.4th 1276, 1279; People v. Francis (2002) 98 Cal.App.4th 873, 878.)
“[W]e defer to the trial court’s implicit credibility findings and accept all
9
reasonable inferences from the evidence.” (People v. Oliver (2023) 90
Cal.App.5th 466, 482.)
“A reversal for insufficient evidence ‘is unwarranted unless it
appears “that upon no hypothesis whatever is there sufficient substantial
evidence to support”’ the [fact finder]’s verdict.” (People v. Zamudio (2008) 43
Cal.4th 327, 357.)
III.
The Trial Court Did Not Err by Denying Appellant’s
Petition for Resentencing
A. Principles of Malice and Aiding and Abetting Murder
Malice may be express or implied. (§ 188, subd. (a).) “Malice is
express when there is manifested a deliberate intention to unlawfully take
away the life of a fellow creature.” (Ibid.) “Malice is implied when no
considerable provocation appears, or when the circumstances attending the
killing show an abandoned and malignant heart.” (Ibid.)
“‘[D]irect aiding and abetting is based on the combined actus reus
of the participants and the aider and abettor’s own mens rea. [Citation.]’”
(Reyes, supra, 14 Cal.5th at pp. 990–991.) Direct aiding and abetting liability
requires proof of (1) “‘the direct perpetrator’s actus reus—a crime committed
by the direct perpetrator,’” (2) “‘the aider and abettor’s mens rea’” and (3)
“‘the aider and abettor’s actus reus—conduct by the aider and abettor that in
fact assists the achievement of the crime.’” (People v. Curiel (2023) 15 Cal.5th
433, 467.) “[A]n aider and abettor’s mental state must be at least that
required of the direct perpetrator.” (People v. McCoy (2001) 25 Cal.4th 1111,
1118 (McCoy).)
A defendant is liable as a direct aider and abettor of express
malice murder if the defendant aided or encouraged the murder with
knowledge of the perpetrator’s unlawful purpose and with the intent or
10
purpose of committing, encouraging, or facilitating the commission of the
murder. (In re Lopez (2023) 14 Cal.5th 562, 579; McCoy, supra, 25 Cal.4th at
p. 1122.) Thus, for express malice murder, the aider and abettor’s mental
state must be express malice and the aider and abettor must have known the
perpetrator’s criminal purpose. (McCoy, supra, p. 1118.)
As applied to this appeal, those principles mean that Appellant is
ineligible for relief under section 1172.6 based on express malice murder if
substantial evidence supported a finding beyond reasonable doubt that he
personally harbored express malice (People v. Lopez (2024) 99 Cal.App.5th
1242, 1248 [“a direct aider and abettor . . . must possess malice
aforethought”]), aided or encouraged the murder and attempted murder (In re
Lopez, supra, 14 Cal.5th at p. 579), and knew the criminal intent of the
perpetrator, B.N. (McCoy, supra, 25 Cal.4th at p. 1118 [the accomplice must
know “‘the full extent of the perpetrator’s criminal purpose’”]).
B. The Juvenile Court Based Its Decision on Express Malice
The juvenile court found the evidence was sufficient to prove
beyond reasonable doubt that Appellant aided and abetted a second degree
murder but did not expressly state whether it was making a finding of
express malice or implied malice. Upon consideration of the record and the
court’s comments, we conclude the juvenile court implicitly made a finding of
express malice. In addressing Reyes, supra, 14 Cal.5th 981, an implied malice
murder case, the court stated, “I believe counsel really raised [Reyes] that for
the implied malice theory, but the Court is reaching its result under the
aiding and abetting theory regardless if the Court finds the facts in this case
materially different. . . .”
11
It appears the juvenile court used “aiding and abetting theory” to
mean a theory of express malice. The court also pointed to testimony that the
front passenger handed the gun to Appellant, who placed it somewhere in the
car. This testimony is most relevant to a theory of express malice.
C. The Evidence Supports a Finding That Appellant Aided and Abetted
Express Malice Murder and Attempted Murder
Based upon a skeletal framework of the facts, Appellant contends
the juvenile trial court’s finding that he aided and abetted murder and
attempted murder is the product of the logical fallacy of post hoc ergo propter
hoc.2 Under that logical fallacy, Appellant contends the facts taken together
are insufficient to show “a logical, temporal, and facilitative nexus between
any aid [Appellant] provided and the perpetrator’s killing.”3
In making that contention, Appellant does not consider the
details, which, according to the adage, are where the devil is to be found.
(People v. Humphrey (1996) 13 Cal.4th 1073, 1092 (Brown, J., conc.) [“[a]s
always, the devil is in the details”].) Nor does Appellant consider the
inferences to be drawn from those details, which must be drawn in favor of
the trial court’s decision. (People v. Oliver, supra, 90 Cal.App.5th at p. 482.)
The evidence, examined carefully, and the inferences drawn in favor of the
trial court’s decision are sufficient to support a finding that Appellant aided
and abetted express malice murder and attempted murder. Those details
2 Literally, “‘after this, therefore because of this.’” (Franklin v.
Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 394.)
3 The first element of aiding and abetting express malice
murder—the perpetrator’s actus reus—is easily satisfied. B.N. participated at
every step in confronting, identifying, and following the occupants of the SUV
and fired the gun five or six times at it.
12
begin with Appellant’s status as an active participant of the TRG gang. Allied
with TRG was the Hellside gang, and B.N., the shooter, was a Hellside
member or associate. Rivals of TRG included AF, the Power of Vietnamese,
and Viets Together gangs.
Appellant had a “beef” with R.J., an AF member who was one of
the passengers in the SUV. In 2009, R.J. had hit up Appellant and, in
retaliation, Appellant vandalized R.J.’s van. On the night before the
shootings, Appellant and his cousin S.A. got into a fistfight with AF members
at a karaoke bar. These details establish that Appellant had a personal
motive to kill rival AF gang members, in particular, R.J. (See e.g., People v.
Boatman (2013) 221 Cal.App.4th 1253, 1266 [relevant evidence of intent to
kill includes “facts about the defendant’s prior relationship and/or conduct
with the victim from which the jury could reasonably infer a ‘‘motive’’ to kill
the victim”]; People v. Leon (2010) 181 Cal.App.4th 452, 467 [“Appellant had
a motive to kill Blanco because they were members of rival gangs”].) That
Appellant had a personal motive is “inferentially relevant to . . . disputed
issues of intent.” (People v. Rogers (2006) 39 Cal.4th 826, 862; see People v.
Roldan (2005) 35 Cal.4th 646, 707 [“evidence of motive makes the crime
understandable and renders the inferences regarding intent more
reasonable”], disapproved on another ground in People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22.)
Appellant left the party at his house and drove to the pool hall
knowing there was a loaded gun in his car. Indeed, L.H. testified she saw
B.N. hand the gun to Appellant, who set the gun down somewhere inside the
car. Although the record does not reveal the spot where Appellant placed the
gun, a reasonable inference is that he placed it within B.N.’s reach. There is
no evidence that Appellant expressed surprise that B.N. had a gun, voiced
13
any objection to it, or placed it outside of B.N.’s reach. A reasonable inference
is the gun was loaded when handed to Appellant because there is no evidence
that anybody loaded the gun before B.N. fired it at the SUV. Further, it can
be reasonably inferred that Appellant knew B.N. intended to use the gun to
inflict injury or death. (See, e.g., People v. Douglas (2020) 56 Cal.App.5th 1,
10 [in the context of a planned felony, “[e]veryone knows the main purpose of
a loaded gun is to hurt people”].)
When Appellant arrived at the pool hall, he “called out” and “had
words with” the people inside, which included R.J. and Bui, whom Appellant
described as “enemies.” Appellant and his cohorts then waited in the parking
lot for Appellant’s enemies to emerge. When they did, there was an angry
confrontation, with people in Appellant’s group yelling “T.R.G., all day, every
day,” “T.R.G., what’s up,” and “[f]uck A.F.”
If Appellant wanted nothing further to do with R.J. and the rival
gang members that evening, then presumably Appellant would have just
driven home. He didn’t. Instead, he positioned his car at the exit of the pool
hall parking lot so that, along with another car from his group, the exit was
nearly blocked. Appellant turned on his car high beams so that he and B.N.
could see and recognize the occupants of each vehicle leaving the parking lot.
When the SUV with Appellant’s enemies inside drove past, Appellant
exclaimed “[t]hat’s them.” Appellant took those actions for a reason, and a
reasonable inference is that reason was to identify the vehicle with his
enemies in it so that it could be followed. Thus, when B.N. said “follow them,”
Appellant did not drive home, but willingly complied. There is no evidence
that Appellant felt compelled or was forced to follow the SUV.
When Appellant’s car was to the side of, and just behind the
SUV, Appellant joined B.N. in conducting a hit up, prompting the occupants
14
of the SUV to yell gang-related words in response. B.N. told Appellant to
speed up. A reasonable inference is that B.N. wanted Appellant to speed up
in order to be in closer shooting range of the SUV. When told to speed up,
Appellant did not ask why, or slow down, or drive off in a different direction.
Appellant was in control of his car and could have driven it at any speed or in
any direction he wished. Appellant made the decision to obey B.N.’s request
to speed up. A reasonable inference is that Appellant made that decision and
sped up because he shared B.N.’s desire to be in closer shooting range of the
SUV.
When B.N. pulled out the gun, Appellant did not tell B.N. to put
the gun away or say don’t shoot them, nor did Appellant try to prevent B.N.
from shooting. As mentioned, a reasonable inference from the evidence is that
the gun was loaded when B.N. handed it to Appellant and that Appellant had
placed the gun within B.N.’s reach. After B.N. fired six shots at the SUV,
Appellant drove off to a spot where he met up with others who had been at
his party earlier that evening. There is no evidence that Appellant expressed
concern over the occupants of the SUV, asked B.N. why he fired the gun, or
chastised him for doing so.
People v. Nguyen, supra 61 Cal.4th at p. 1053 supports our
conclusion the evidence was sufficient to establish aiding and abetting
express malice murder and attempted murder. In Nguyen, the defendant was
a passenger in the back seat of a car and the shooter sat in the front
passenger seat. The car in which the defendant was riding followed a car
carrying members of a rival gang, including the victim. When the defendant’s
car passed the other car, the defendant and the other passengers stared back
at the car. (Ibid.) The car in which the defendant was riding then idled in the
parking lot of a fast-food restaurant with its occupants “‘all like looking out
15
and stuff.’” (Ibid.) When the victim’s car passed the restaurant, the
defendant’s car exited the parking lot and followed for several blocks. (Ibid.)
The two cars stopped next to each other at a stoplight. When the signal
turned green, the shooter shot the victim in the neck. (Ibid.) The victim
survived but was paralyzed from the neck down. (Id. at p. 1027.) Some days
later, the defendant visited the apartment of one of the passengers in the
victim’s car and expressed his concerns about potential police investigations.
(Id. at p. 1054.) The prosecution’s gang expert testified that Asian gangs
tended to drive from place to place looking for victims, everybody in the car
would be expected to serve as lookout or back up, and, at the time of the
shooting, the defendant’s gang was “in a state of war” with a rival gang.
(Ibid.) The jury convicted the defendant, as relevant here, of attempted
murder. (Id. at pp. 1025, 1053.)
The California Supreme Court held the evidence was sufficient to
uphold the defendant’s conviction for attempted murder. (People v. Nguyen,
supra, 61 Cal.4th at p. 1055.) The court considered evidence that the
defendant’s car followed the victim’s car, the passengers in the defendant’s
car stared at the occupants of the victim’s car, and the defendant was
concerned later about what was “up with the cops.” (Ibid.) The court
considered the evidence in the context of the ongoing gang war and the
expert’s testimony about Asian gang practices and concluded the jury could
have inferred that the defendant knew of the shooter’s intent, shared that
intent, and aided the shooter by spotting potential targets. (Ibid.)
In the present case, the evidence of Appellant’s culpability was at
least as strong as that of the defendant in Nguyen. Appellant was not just a
passenger: He was the driver and, as such, made the decisions to obey B.N.’s
requests to follow the SUV and speed up in pursuit. Appellant knew there
16
was a loaded gun in the car because B.N. handed it to him. Appellant did not
object to the gun and placed it within B.N.’s reach. Appellant positioned his
car at the exit to the pool hall’s parking lot and identified the SUV carrying
his “enemies.” While there was no expert testimony in this case about an
ongoing gang war, the evidence here should be considered in the context of
the evidence of motive, including the rivalry between TRG (and by extension
Hellside) and AF, as well as Appellant’s “beef” with R.J. Further, the
prosecution’s gang expert testified that gang members are expected to help
fellow gang members in carrying out criminal activities, and backup could
include driving the car, which is what Appellant did. As in Nguyen, it can be
inferred from the evidence that Appellant knew of B.N.’s intent to kill, shared
that intent, and aided B.N. by driving the car and spotting their target.
Appellant argues “there was zero evidence that [Appellant] had,
by word or conduct, promoted, encouraged, or instigated the shooting” and
the evidence of actus reus “was not coupled with a specific intent to kill.”4
Appellant argues “[i]t would have been different if the witness sitting in the
back seat testified that she heard Tran tell Nguyen something to the effect,
‘That’s them. Get your gun ready’ or ‘I’m going to catch up with that car so
you can get a good shot at them.’”
4 Appellant places significance on testimony by L.H. that she
expected, at worst, that “fighting or something” would break out. The trial
court was the ultimate judge of witness credibility and, in accordance with
the standard of review, we infer the trial court impliedly found L.H. not to be
credible in that regard. (People v. Oliver, supra 90 Cal.App.5th at p. 482.) We
also question the degree of relevance, if any, evidence of L.H.’s expectations
would have to the issue of Appellant’s intent. And L.H.’s testimony is just one
small part of the entire record which is to be examined under a sufficiency of
the evidence review. (People v. Jones (1990) 51 Cal.3d 294, 314.)
17
Such direct expressions of intent are not necessary to draw an
inference of intent to kill. As Appellant acknowledges, circumstantial
evidence is as sufficient as direct evidence in that regard. (People v. Nguyen,
supra, 61 Cal.4th at p. 1055.) The evidence, and the reasonable inferences
drawn from it, are sufficient to support a finding that Appellant aided,
promoted, encouraged, or instigated the commission of the murder of Bui and
the attempted murder of R.J. with express malice and knowledge of B.N.’s
murderous intent. Indeed, the evidence shows that Appellant and B.N.
worked virtually in tandem with a shared intent to seek out, follow, and kill
rival gang members.
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DISPOSITION
The postjudgment order denying Appellant’s petition for
resentencing is affirmed.
SANCHEZ, ACTING P. J.
WE CONCUR:
GOODING, J.
SCHWARM, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
19