P. v. Nguyen

Filed 9/29/06 P. v. Nguyen CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Carla Singer, Judge. Affirmed.

John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Dung Van Nguyen (defendant) of attempted murder, two counts of attempted first degree robbery, first degree burglary, street terrorism, and unlawful possession of a firearm by a juvenile ward. The jury found true allegations defendant committed the attempted murder, robberies and burglary for the benefit of the criminal street gangs Crazy Viet Family and Wah Ching, and vicariously used and discharged a firearm thereby causing great bodily injury.

The court found true allegations defendant had four prior serious or violent felony convictions within the meaning of the “Three Strikes” law and sentenced defendant to a total aggregated term of 102 years to life, plus 10 years. It imposed an indeterminate term of 27 years to life for the attempted murder count, a consecutive term of 25 years to life for discharging a gun during the commission of this crime, a consecutive term of 25 years to life for one of the attempted robberies, a consecutive 10 year term for using a gun during the commission of this crime, and a consecutive term of 25 years to life for street terrorism. The trial court stayed the imposition of sentence for the second attempted robbery, the burglary, the possession of a firearm by a juvenile, and the enhancements related to these counts pursuant to Penal Code section 654. (All further statutory references are to the Penal Code unless otherwise stated.)

Defendant claims two of the court’s innumerable evidentiary rulings were erroneous and resulted in a miscarriage of justice. He also contends the court misapprehended its sentencing discretion when it imposed the upper term for attempted murder and the imposition of the upper term conflicts with the principles enunciated in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). We conclude the court erroneously admitted evidence of a prior home invasion robbery to prove defendant’s identity, but conclude the error did not result in a miscarriage of justice or violate defendant’s federal Constitutional rights. We reject defendant’s remaining contentions and affirm the judgment.

I

FACTS

The crime

In June 2001, Loc Nguyen^[1] (Loc), his wife, Tam Hoang, and their four grandchildren lived at a residence in Garden Grove. On June 7, Pedro Ayala was in the backyard of their home measuring a sliding glass door in preparation for the installation of a security gate. As Ayala walked toward the back corner of the house, two armed men pointed their guns at his head and chest and moved him out of sight. One armed man held Ayala in place while the other moved toward the sliding glass window.

Loc saw the shadows of two people running by the glass door. When he looked out doors, Loc saw a man dressed in black clothing with a gun in this right hand. Loc shut the sliding glass door but was unable to lock it. The man outside the door held the gun in one hand and pushed the sliding glass door open with the other. Loc managed to push the gunman back outside, but the gunman “beat” Loc with his free hand. Loc pushed the gunman back into an elevated brick planter. Loc felt something strike the back of his head. The force of the blow knocked him to the ground. Loc felt numb and thought he had been shot. He later learned he had been shot in the neck. Loc saw two men run away from him and jump over the back wall of his yard. One of the men was wearing a white shirt. Loc briefly lost consciousness. When he regained consciousness, Loc crawled into his house and called 911.

Hoang heard Loc shout at someone and saw him fighting with a man. When a second man entered their home, she screamed, grabbed the children, and ran out the front door to a neighbor’s home. She heard one gunshot as she ran across the street. Hoang could not identify anyone when shown a photographic lineup.

Ayala heard Loc yelling and he heard Hoang and the children screaming. When he heard a shot, the person guarding him ran away and jumped the back wall. Within seconds, Ayala saw two more men, one armed with a gun, jump the wall. Ayala could not identify the gunman.

Be Vo, one of Loc’s neighbors, testified that on June 7, 2001, she saw three or four young Vietnamese men run from her carport, cross the street, separate into two groups of two, and then run in two different directions. Two of the men were wearing black clothes and a third had on a white shirt.

The investigation

An officer responding to Loc’s 911 emergency call found a wallet in the elevated brick planter. The wallet belonged to Nam Nguyen. Defendant’s telephone number was found inside the wallet.

On July 6, 2001, detectives stopped two cars leaving Nam’s apartment complex. Nam, Song, and Trinh Van were in one car and defendant was driving the other. Nam was shot and killed during an exchange of gunfire. Defendant, Song, and Van were arrested. Investigating police officers found Luu at Nam’s apartment. A search of Nam’s apartment resulted in the seizure of ammunition magazines for a .380 caliber semi-automatic handgun and a plastic gun case containing approximately 15 bullets for .357, .38 and.45 caliber guns. The letters “VBH” and the word “Dreamer” had been scratched into the paint on the stairwell railing leading from Nam’s apartment on the ground floor to the first floor apartment.

In 2003, Song pleaded guilty to the attempted murder of Loc, two counts of attempted robbery, burglary, carrying a concealed weapon, carrying a stolen and loaded firearm, and receiving stolen property. He admitted committing the attempted murder for the benefit of or in association with the Crazy Viet Family and Wah Ching criminal street gangs. His guilty plea is supported by a typed, six-paragraph factual basis that supplies the necessary facts to support the elements of each offense and the enhancements, and it identifies Nam, defendant, and Luu as co-participants in the commission of the crimes.

The trial

a. The prosecution’s case

Following the testimony of the victims, Loc and Hoang, the prosecution called Song to testify about the crime. Song readily admitted his own participation in the home invasion robbery on June 7, 2001. He identified himself, Nam, Luu, and defendant in the photographs that had been shown to Loc, Hoang, and Ayala, and identified defendant in court. He also admitted membership in the Vietnamese Brotherhood gang in June 2001.

As the prosecutor started to focus on the details of the crime, Song’s memory began to fail. He could not recall the location of the residence even with the aid of photographs. He remembered that he, Nam and Luu jumped a wall to gain entry to the backyard of the home, but testified defendant was not present at the time. Song had testified as a defense witness at Luu’s trial in April 2003. But referring to a transcript of his former testimony did not refresh his recollection as to his prior testimony.

The remainder of Song’s direct examination testimony was essentially a repudiation of his prior testimony. At this trial, he claimed he and Nam had guns, and said Luu detained Ayala while Nam fought with and shot Loc. He also claimed defendant was not present at Nam’s apartment on the morning of the robbery. He denied reading the plea form he signed in 2003. He admitted he signed the form but claimed he did know what it said. When the prosecutor asked him why he would do such a thing, Song explained, “When they gave me 18 years, I accepted it right away, I felt it was a good deal.” Song also testified Nam, who was a Vietnamese Brotherhood criminal street gang member, also associated with the Crazy Viet criminal street gang. He claimed he did not know whether defendant belonged to a criminal street gang or not.

In light of Song’s testimony, and by stipulation of the parties, the court admitted portions of Song’s prior testimony. At Luu’s trial, Song testified he, Luu, Nam, and defendant met at Nam’s apartment on the morning of the June 7, 2001 robbery. They discussed how they would gain entry into a particular house on Stern Street in Garden Grove. They knew the home would be occupied, so they decided to jump a wall in the backyard one at a time. Defendant and Nam each carried a gun. They left Nam’s apartment just after lunch and drove one of the cars involved in the July 6 shoot-out.

Once defendant, Nam, Song, and Luu arrived at their destination, they approached the backyard of the residence through the alley. They jumped the wall into the backyard one at a time without being noticed. Nam grabbed Ayala and handed him to defendant. Defendant used his gun to keep Ayala quiet while Nam fought with Loc. Luu did not help them during the struggle, so Song called him “squirrel minded” and everybody yelled at him.

Lien Hoang, one of defendant’s friends, testified that she recalled driving defendant to Nam’s apartment on June 7, 2001. During the drive, defendant told her, “that he fought with somebody, and he had to throw a gun out.” When Hoang asked why he threw the gun away, defendant replied, “[o]nce you shoot it, you get rid of it . . . .” Defendant confessed to her, “They shot somebody.” Defendant told Hoang that she would be meeting the same guys who were involved in the shooting at Nam’s apartment. When they arrived at Nam’s apartment, defendant, Nam, Cam Song, and Phuoc Luu talked about shooting somebody and reenacted the incident. They said there had been a fight with “an older man,” maybe a “Mexican guy,” and they had left somebody bleeding.

b. Prior crimes evidence

Former Garden Grove Police Officer Mario Gutierrez, testified regarding a home-invasion robbery that occurred in the early morning hours of January 4, 1998. Gutierrez questioned Quyet Nguyen at the scene. At that time, Quyet admitted the following facts: Quyet, Ruben Lahn, and defendant were staying at a Garden Grove motel room, when Lan Nguyen, Tommy Anderson, and a guy he knew as Dreamer, arrived. They started to speak in Vietnamese about getting some money. One of them said, “Let’s go and do some house.” Quyet understood that to mean they were going to commit a burglary. Lan and Tommy said they knew of a house that had a lot of money inside.

The six of them split up into two groups of three and drove in two cars to an apartment in Garden Grove. They stood outside the apartment and heard children giggling from inside. Quyet removed a window screen with a screwdriver. He also pried open the window to gain access to the apartment. He entered the apartment first armed with a gun. The rest of the group followed behind him. Once inside, they terrorized the household, which included several children, using the gun and a pitchfork. They conducted a systematic search of the apartment for money and valuables while the occupants were forced at gun point to lie on the floor with their eyes closed. They stopped searching for money when they heard the police arrive.

The prosecution also called Quyet to testify about defendant’s involvement in the crime. Quyet testified that on the morning of the robbery, he met Ruben Lahn at Lahn’s motel room in Garden Grove. But Quyet could not recall the persons involved in the robbery at trial due to a head injury he suffered in prison. He admitted they drove from the motel room to a residence in Garden Grove and committed a home invasion robbery. Quyet said he carried a gun and entered the home through a bedroom window. Once inside, Quyet demanded money from the occupants. Police officers arrived while he and his confederates were still inside the home.

c. Gang expert testimony

Garden Grove Police Detective Peter Vi testified as the prosecution’s gang expert. Vi explained gang culture, behavior, and psychology. According to Vi, Asian gangs differ from Hispanic gangs in some significant ways. Most gang members and associates have nicknames or monikers, but unlike Hispanic gang members, Asian gang members are secretive about their monikers. Traditional Asian gangs do not have territories or turf like traditional Hispanic gangs. They tend to be mobile rather than identified with a specific geographical area. An Asian gang member with a gun is shown great respect. He is considered to be responsible for himself and any other gang members with him. In Vi’s opinion, other gang members with an armed member would be aware of him “because their life might depend on this guy’s action to defend himself and the rest of the people in his gang.”

In any gang, respect and retaliation are important concepts, the quest for respect leads to repeated acts of retaliation. Violent crimes gain the most respect for individual gang members and for their gang. Gang members do not willingly cooperate with law enforcement. Any gang member who testifies at a trial will be labeled a “rat.” If the person goes to jail after testifying, he or she will have a “rat jacket” and be at risk for serious injury or death.

Vi testified the Crazy Viet gang started sometime around 1994 or 1995. The gang had between 15 and 20 members. It is allied with the Cadi Lost Boys gang, Little Asian Rascal gang, Wah Ching gang, and Viet Brotherhood gang. In Vi’s opinion, the Crazy Viet gang had 12 members on June 7, 2001, including Nam, whose moniker was Insane, and defendant, whose moniker was Crazy Dog. Vi testified Song and Van were members of the Viet Brotherhood gang, and Luu belonged to the Wah Ching gang.

Vi testified to numerous “contacts” between defendant and law enforcement officers over the years.^[2] In 1995, Vi contacted defendant during an assault investigation, and defendant and Nam were contacted together regarding a stolen car. In 1996, Vi stopped a car with defendant and another young man with ties to the Cadi Lost Boys gang. In 1996, defendant completed a field interview card and told the police officer he associated with the Crazy Viet gang. In 1997, defendant, a juvenile, and an adult committed a commercial burglary. An employee of the store was injured during the commission of the crime. Vi also testified about the 1998 home invasion robbery. He told the jury the crime involved members of the following four Asian street gangs: Viet Family, Asian gang, Crazy Viet gang, and Asian Boys.

In 2001, a California Youth Authority parole agent prepared a classification report based on an interview with defendant. Defendant admitted his membership in the Crazy Viet gang and gave his moniker, Crazy Dog. Defendant listed the Cheap Boys, Crazy Viet Family, Power of Vietnamese and Master of Destruction as rival gangs to the Crazy Viet gang. Another document from the California Youth Authority listed further contacts with defendant in 1998 and 2001. Vi also reviewed documents from the Santa Ana Police Department indicating defendant was a member of the Crazy Viet gang. In Vi’s opinion, the instant crimes were committed by members of three Asian criminal street gangs acting in concert for the benefit of their gangs collectively and each gang member individually.

d. Defense evidence

Defendant denied participating in the charged crimes. He testified he was at his mother’s home when the crime was committed. He claimed to be left-handed, not right-handed, as the perpetrator was supposed to be. Defendant admitted lying to police after his arrest and lying about not knowing Nam, Song, Luu, and Van. He also admitted he committed the 1998 home invasion robbery. However, he denied the other people involved in that crime were gang members. Defendant further admitted that he committed an auto theft with Nam in 1995 and that at the time they were both members of the Crazy Viet gang. However, defendant explained that the gang disbanded after the commission of that crime.

Defendant denied making statements to police officers about current gang membership or being jumped-in to the gang. In June and July 1991, defendant testified he frequently visited Nam’s apartment and saw Luu, Song, Van and Hoang on various occasions. On one such occasion in June, Nam brought out a small gun and passed it around to everyone. However, defendant denied telling Hoang about disposing of a gun or about a fight with an older man. Defendant explained the discussion about a Mexican guy was a reference to “some guy was drunk, and they got into a fight.”

II

DISCUSSION

Evidentiary errors

Evidence Code section 1101

Under Evidence Code section 1101, subdivision (b), the prosecution may introduce evidence the defendant committed other crimes or civil wrongs, “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . ) other than his or her disposition to commit such an act.” Here, the prosecution moved pretrial to introduce evidence of defendant’s participation in a 1998 home invasion robbery to as evidence of defendant’s intent and participation in a common plan, scheme, or design. The prosecutor did not specifically list identity as one of the facts to be proven by evidence of the 1998 crime. It may be the prosecution was unaware of defendant’s reliance on an alibi defense until after the filing of the motion, but knowledge of defendant’s tactical decision must have crystallized shortly thereafter. With defendant’s identity at issue, the admissibility of prior crimes evidence became a closer question. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403 (Ewoldt).) “‘To be relevant on the issue of identity, the uncharged crimes must be highly similar to the charged offenses. . . .

. . .

A lesser degree of similarity is required to establish relevance on the issue of common design or plan. . . .

The least degree of similarity is required to establish relevance on the issue of intent. [Citation.] For this purpose, the uncharged crimes need only be “sufficiently similar [to the charged offenses] to support the inference that the defendant ‘”probably harbored the same intent in each instance.” [Citations.]’”’ [Citations.]” (People v. Lewis (2001) 25 Cal.4th 610, 636-637.)

During pretrial proceedings, the court and counsel engaged in a lengthy discussion regarding the admissibility of defendant’s prior crime for all purposes under Evidence Code sections 1101 and 352. In the end, the trial court ruled the 1998 home invasion robbery was admissible to prove identity, common plan scheme or design, and intent. The court relied on the following points of similarity between the two crimes: (1) defendant and a coalition of at least three members of different Asian criminal street gangs committed a home invasion robbery in concert; (2) they gathered to plan the crime; (3) drove to a predetermined residence in Garden Grove; (4) armed themselves with a gun or other weapons; (5) gained entry into the home by stealth; and (6) over-powered the occupants by using the weapon and physical force. In addition, the court ruled the probative value of the evidence outweighed its prejudicial effect. (Evid. Code, § 352.)

“On appeal, a trial court’s ruling under Evidence Code sections 1101 and 352 is reviewed for abuse of discretion. [Citations.]” (People v. Lewis (2001) 25 Cal.4th 610, 637.) “A court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ [Citation.]” (People v. Kipp (1998) 18 Cal.4th 349, 371.) “Evidence of an uncharged crime is relevant to prove identity only if the charged and uncharged offenses display a ‘”pattern and characteristics . . . so unusual and distinctive as to be like a signature.”’ [Citations.]” (Id. at p. 370.) Based on the trial record, the 1998 and 2001 home invasion robberies are not signature crimes.

This case does not involve defendant and several of the same members of Asian street gangs committing home invasion robberies in such a way that the crimes alone would identify the perpetrators. Here, defendant, a member of two Asian street gangs, associated with a few members of allied Asian street gangs on one occasion in 1998, but an entirely different set of allied Asian street gang members in 2001. The 1998 crime occurred during the early morning hours. The current offense occurred in the middle of the day. The stealth involved in the 1998 crime involved prying open an apartment window. In that crime, all the participants entered the home. In the current crime, entry was gained through a sliding glass door and defendant’s job was to hold Ayala outside. In 1998, one perpetrator had a gun and another had a pitchfork. In the current case, defendant and Nam had guns. True, both robberies involved at least four individuals, weapons, and a getaway car. But these facts are not unique to robberies, let alone home invasion robberies. The same may be said of the fact the homes are sometimes occupied, the perpetrators gain entry by stealth, and gunmen subdue the occupants while the home is searched and its valuable contents removed.

The court also considered the act of gathering together to plan the crime unique, but that really is not such an unusual occurrence. The average group of criminals will engage in some amount of planning before committing a crime. Moreover, there is a qualitative difference between the planning that occurred before the 1998 crime and the current crime. Nam, Luu, Song, and defendant discussed how the crime would be committed at length before they drove to the target home. They were well organized and well armed. Quyet, Lahn, defendant, and the others were not. Their robbery appeared to be a more spur of the moment affair. Further, we do not find the fact that both crimes were committed in Garden Grove significant. Apparently, defendant and the other perpetrators involved in both crimes were simply familiar with Garden Grove neighborhoods. As noted in People v. Weathers (1969) 274 Cal.App.2d 232, too many important dissimilarities between the crimes can outweigh the similarities and thereby render the evidence inadmissible. (Id. at pp. 237-238.)

Here, the other crimes evidence could arguably be sufficiently similar to render evidence of the 1998 home invasion robbery admissible to prove defendant’s motive and intent, or common plan, scheme or design. However, none of these aspects of Evidence Code section 1101, subdivision (b) were at issue because defendant asserted an alibi defense. Consequently, evidence of the 1998 crime was admissible, if at all, solely on the issue of identity. However, even viewing the evidence in the light most favorable to the trial court’s ruling, the two crimes do not share sufficient common features to support an inference the same person was involved in both crimes. (People v. Kipp, supra, 18 Cal.4th at p. 370; Ewoldt, supra, 7 Cal.4th at p. 403.) Therefore, the evidence should have been excluded.

Defendant contends the admission of evidence of his 1998 prior home invasion robbery violated his right to due process and a fair trial as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution. Under the state Constitution we may not reverse a judgment for evidentiary error absent a “miscarriage of justice.” (Cal. Const., art. VI, § 13.) To find a miscarriage of justice, we must be persuaded it is “reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.)

In this case, it does not seem reasonably probable defendant would have received a more favorable result if the evidence had been excluded. Song’s prior testimony placed defendant at Nam’s apartment on the morning of the June 7, 2001 robbery. Defendant took part in the detailed planning of the robbery and carried a gun. He held Ayala quiet while Nam shot Loc. Of course, Song’s testimony at defendant’s trial contradicts this evidence, but his prior testimony is supported by the factual basis of his plea form. Further, Song’s sudden loss of memory at defendant’s trial can be explained by Vi’s expert testimony about what happens to “rats” in prison.

Moreover, Lien Hoang, one of defendant’s friends, testified to a conversation she had with defendant sometime on June 7, 2001. Defendant told her, “that he fought with somebody, and he had to throw a gun out.” When Hoang asked why he threw the gun away, defendant replied, “[o]nce you shoot it, you get rid of it . . . .” He confessed that, “They shot somebody.” Defendant told Hoang that she would be meeting the same guys who were involved in the shooting at Nam’s apartment. When she arrived at Nam’s apartment, Nam, Song, and Luu were there and they all talked about shooting somebody and reenacted the incident. They told her they had been in a fight with an older Mexican guy and they had left him bleeding. Thus, defendant’s statements to Hoang placed him at the scene of the crime.

As for the federal Constitutional violation, the erroneous admission of evidence results in a due process violation “only if it makes the trial fundamentally unfair.” (People v. Partida (2005) 37 Cal.4th 428, 436.) We perceive no fundamental unfairness. The prosecution did not have an eyewitness to place defendant at the scene of the crime. However, the prosecution did present evidence of defendant’s statements to a friend that logically and inferentially placed him at the crime with other known perpetrators, and the testimony of a codefendant naming defendant as an active participant in the crime. Defendant’s alibi defense was not particular persuasive, as he was repeatedly impeached with prior inconsistent statements. Therefore, the court’s single evidentiary error did not render the entire trial fundamentally unfair.

Evidence Code section 1230

Defendant argues the court erroneously excluded an inculpatory statement Nam purportedly made before his death. According to defense counsel’s offer of proof, Song would have testified that Nam said he accidentally shot Loc. He contends Nam’s statement was admissible under Evidence Code section 1250. The trial court disagreed. We review this ruling for abuse of discretion. (People v. Lawley (2002) 27 Cal.4th 102, 153.)

Evidence Code section 1230 provides, “Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant’s pecuniary or proprietary interest. . . that a reasonable man in his position would not have made the statement unless he believed it to be true.” To establish admissibility of such a statement, the declarant must be unavailable, and the declaration must have been against the declarant’s penal interest when made and under circumstances that establish its reliability. (People v. Lucas (1995) 12 Cal.4th 415, 462.)

There is no dispute regarding Nam’s unavailability as a witness. Defendant argues the reliability of the statement is established because Nam’s statement “inexplicably tied [him] to the act of shooting and robbing the victim.” We find this argument unpersuasive.

To be admissible, a declaration against interest must be “distinctly” against the declarant’s interest. (People v. Traylor (1972) 23 Cal.App.3d 323, 331.) Had Nam survived the July 2001 gunfight, he would have been a codefendant of defendant, Luu, and Song. Because his identity as the gunman was not in serious doubt, his statement that he “accidentally” shot Loc appears to be an attempt to minimize his culpability in relationship to the charge of attempted murder. Moreover, defendant produced no other evidence concerning the statement’s reliability. He argues the “statement was made under the ‘most reliable of circumstances[,]’” which he describes as a conversation between friends. We are not persuaded. In any event, Nam’s statement to a confederate in crime is nothing more than a self-serving attempt “to exculpate himself from the robbery and admit guilt to a less serious crime . . . . [Citations.]” (People v. Robinson (1991) 229 Cal.App.3d 1620, 1625.) There was no error.

Defendant also asserts the exclusion of Nam’s statement to Song denied him the right to present a defense under the Fourteenth Amendment to the United States Constitution. “Application of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a defense. [Citation.]” (People v. Mincey (1992) 2 Cal.4th 408, 440.) Defendant acknowledges this maxim of law, but claims evidence of Nam’s mental state was vital to his case. We disagree.

According to defendant’s trial testimony, he was at his mother’s home and either in bed or in the process of waking up when Nam shot Loc. Consequently, Nam’s mental state was irrelevant to defendant’s trial strategy. Second, the prosecution argued defendant aided and abetted Nam in the commission of the attempted murder. Under this theory, it is not necessary he share the perpetrator’s intent, but merely that the defendant (1) acted with the knowledge of the criminal purpose of the perpetrator, (2) with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, and (3) by act or advice aided, promoted, encouraged or instigated the commission of the crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259; People v. Beeman (1984) 35 Cal.3d 547, 560.)

The prosecution established sufficient evidence defendant and his cohorts intended to commit an armed robbery. During the commission of the armed robbery, which defendant aided and abetted by holding Ayala at gunpoint, Nam shot Loc. Under the natural and probable consequences doctrine, criminal liability extends from the crime originally aided and abetted to any other crime that is committed, which is also a natural and probable consequence of the target crime. (People v. Prettyman, supra, 14 Cal.4th

at pp. 260-262.) A jury could reasonably conclude a gun used during the commission of an armed robbery could possibly be fired at some point during the crime. Regardless of whether Nam intentionally shot Loc or accidentally pulled the trigger, defendant risked a conviction for attempted murder on the basis of his participation in the planned robbery. Thus, the trial court did not violate defendant’s Constitutional right to present a defense by excluding Nam’s statement he accidentally shot Loc.

Sentencing issues

Upper term

The trial court imposed a sentence of 27 years to life on count one, the attempted murder conviction. The court arrived at this number by multiplying the upper term of nine years for attempted murder (§ 664, subd. (a)) by three as prescribed by section 667, subdivision (e)(2)(A).^[3] Defendant argues the court misapprehended its discretion to impose the middle or low term; therefore, the matter must be remanded to allow the trial court to properly exercise its sentencing discretion. We disagree.

Before imposing sentence, the court stated, “It is the court’s intention at this time, and I did express this intention to counsel when we conferred in chambers, to sentence the defendant on count 1, the attempted murder charge . . . to 27 years to life imprisonment.” The court briefly discussed the potential effect of the decision in Blakely, supra, 542 U.S. 296, before stating, “And it is the court’s conclusion at this time that the statute that specifies three times the upper or 25 years to life, which ever is greater, has not been impacted by Blakely.” This comment suggests the court discussed its selection of the upper term with counsel in chambers and concluded the Blakely, supra, 542 U.S. 296 decision did not apply to bar its intended disposition. It does not, as defendant contends, demonstrate the court’s misunderstanding of its discretion to select the middle or low term of the three terms available under section 664, subdivision (a). These facts distinguish the instant case from People v. Keelen (1998) 62 Cal.App.4th 813, on which defendant relies.

In People v. Keelen, supra, 62 Cal.App.4th 813, a jury convicted the defendant of attempted murder, spousal abuse and possession of a firearm by a felon and found true various enhancement allegations and that defendant previously had been convicted of two residential burglaries. At the first sentencing hearing, the trial court imposed a sentence of 25 years to life, pursuant to section 667, subdivision (e)(2)(A). The court vacated this sentence and conducted a second sentencing hearing two days later. This time, the trial court quoted the statutory language and imposed a sentence of 27 years to life. The appellate court’s review of the record led it to “conclude from the trial court’s statements at both sentencing hearings the court believed it had no discretion and was required to impose three times the upper term for attempted murder as the minimum term of defendant’s life sentence.” (Id. at p. 818.) Here, the trial court’s comments displayed no confusion. To the contrary, our review of the record leads this court to conclude the trial court understood its discretion and purposefully imposed the upper term.

Moreover, the record supports the trial court’s selection of the upper term sentence. The probation report lists five aggravating circumstances (victim vulnerability, planning and sophistication, defendant’s violent conduct, defendant’s crimes are of increasing seriousness, defendant on parole for similar offense) and no circumstances in mitigation. Defendant, who was 24 years old at the time of sentencing, has a juvenile record dating back to 1995 when he turned 15. He has squandered numerous grants of probation and received lenient sentences in the past, but he continues to engage in violent criminal activity. As a long-time member of two violent criminal street gangs with ties to several other violent criminal street gangs, defendant poses a threat to the community whenever he is not in custody. The imposition of the upper term is appropriate in this case.

After the court announced the selection of the upper term and the imposition of the 27 years to life sentence, the court inquired, “Did either of you want to be heard on that point on the record?” Defense counsel replied, “No, your Honor.” The Attorney General argues defendant waived the issue by failing to object to the court’s imposition of the upper term, but relies on several cases that found waiver for a failure to object to deficiencies in the court’s statement of reasons for a sentencing decision. The Attorney General urges us to arrive at a similar result, i.e., find defendant waived the issue here, without case authority to support it. We need not do so. Having concluded the court did not misapprehend its sentencing discretion, such an exercise would be unnecessary to the decision in this case.

Blakely

Finally, defendant argues the imposition of the upper term for attempted murder violated his Sixth Amendment right to a jury trial, relying on Blakely, supra, 542 U.S. 961 and Apprendi, supra, 530 U.S. 466. The California Supreme Court rejected defendant’s argument in People v. Black (2005) 35 Cal.4th 1238 (Black).

In Black, the high court concluded California’s Determinate Sentencing Law meets federal Constitutional standards. “Blakely and [United States v.] Booker [(2005) 543 U.S. 220] established a constitutionally significant distinction between a sentencing scheme that permits judges to engage in the type of judicial factfinding typically and traditionally involved in the exercise of judicial discretion employed in selecting a sentence from within the range prescribed for an offense, and a sentencing scheme that assigns to judges the type of factfinding role traditionally exercised by juries in determining the existence or nonexistence of elements of an offense.” (Black, supra, 35 Cal.4th at p. 1253.) “[I]n operation and effect, the provisions of the California determinate sentence law simply authorize a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge’s selection of an appropriate sentence within a statutorily prescribed sentencing range. Therefore, the upper term is the ‘statutory maximum’ and a trial court’s imposition of an upper term sentence does not violate a defendant’s right to a jury trial under the principles set forth in . . . Blakely[ ] and Booker.“ (Id. at p. 1254.) Of course, the United States Supreme Court may disagree. (People v. Cunningham (Apr. 18, 2005, A103501) [nonpub. opn .], cert. granted sub. nom. Cunningham v. California (2006)___U.S.____ [126 S.Ct 1329, 164 L.Ed.2d 47.) However, under well-established legal principles, Black is the controlling authority and we are bound by its holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

III

DISPOSITION

The judgment is affirmed.

MOORE, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

BEDSWORTH, J.

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^[1] Because several individuals mentioned in this opinion have the last name Nguyen, they are referred to by their first names for ease of reference and not out of any disrespect.

^[2] Prior to this testimony, the court gave the following limiting instruction: Ladies and gentlemen, Detective Vi has begun some testimony about some contact with defendant in this case may have had with the police in the past, specifically in 1995. You are instructed now by the court that these contacts are being recited by Investigator Vi because he is giving opinions as an expert in the area of criminal street gangs, or street terrorism by criminal street gangs.

Any testimony that he offers with respect to any prior contact that this defendant had with the police, specifically contact in 1995 or at any other time in the past, may be considered by you only as a basis for the opinion that Investigator Vi is giving on the subject mater about which he is testifying.

They may not be considered, these statements or this evidence may not be considered by you for any other purpose. This evidence is not being offered to show that the defendant is a person of bad character or a bad person, or that the defendant has indeed committed crimes in the past.

I want to specifically caution you that you may not consider any criminal conduct on the part of the defendant in the past as evidence of his guilty for the crimes he is facing here in this courtroom today.”

^[3] Section 667, subdivision (e)(2)(A) provides, “If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of:

(i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions.

(ii) Imprisonment in the state prison for 25 years.

(iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.”