Filed 4/16/13 P. v. Yu CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G046106

         v.                                                            (Super. Ct. No. 10WF0524)

CHRISTOPHER DAI-ICHI YU,                                               OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Lance
Jensen, Judge. Affirmed in part and reversed in part.
                   Christopher Nalls, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Senior Assistant Attorney General, Bradley Weinreb
and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
              A jury convicted defendant Christopher Dai-Ichi Yu of murder (count 1,
                            1
Pen. Code, § 187, subd. (a)) and found true the allegations he committed the murder for
the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and personally discharged a
                                2
firearm (§ 12022.53, subd. (c)). The jury also convicted him of attempted murder (count
2, §§ 187, subd. (a), 664, subd. (a)) and found true the allegations he committed the crime
for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and personally discharged
a firearm (§ 12022.53, subd. (c)). The jury also convicted him of street terrorism. (Count
3, § 186.22, subd. (a).)
              The court sentenced defendant to an indeterminate term of 55 years to life
on count 1 (including the firearm and gang enhancements) and a determinative term of 39
years on count 2 (including the firearm and gang enhancements). It stayed execution of
sentence on count 3 pursuant to section 654.
              On appeal defendant (1) challenges the sufficiency of the evidence to
support the murder and attempted murder convictions and the gang enhancements, and
(2) contends the court made instructional and sentencing errors. Defendant‘s contentions
of sentencing error are meritorious and we reverse the judgment accordingly in those
respects. With those exceptions, we affirm the judgment.




1
              All statutory references are to the Penal Code.
2
               As to count 1, the jury also found true the special circumstance allegation
that defendant committed the murder during a robbery. (§ 190.2, subd. (a)(17)(A).) The
court later granted defendant‘s motion for a new trial on the allegation and subsequently
granted the People‘s motion to dismiss it because the court had failed to instruct the jury
with CALCRIM No. 703 (relating to the intent requirement for an accomplice charged
with special circumstance murder).

                                               2
                                          FACTS


              The jury convicted defendant of the murder of Tina Tuyet Huynh
committed during a robbery. Huynh died after she held onto the side of a speeding car
(in which defendant was a passenger) and was dragged by the car for several blocks.
Eventually, Huynh fell to the street and died of blunt force trauma caused by the fall.
              In a police interview, defendant recounted the scam drug deal that led to
Huynh‘s death. According to defendant, Lynn Quach picked him up in her car and they
drove to a park. There, Quach stopped her car behind a white Acura in which a lone man
was sitting. Huynh was there to pick up 2,000 pills of Ecstasy she wanted to buy from
Quach and defendant. Quach asked Huynh if she had the money. Huynh replied she had
about $4,000, but demanded to see the Ecstasy. Defendant did not have any Ecstasy, but
he needed money to pay his bills, so he pretended to have the pills. Huynh showed
defendant the money twice. The second time, defendant ―took it.‖ He ―grabbed the
money real‖ quick. Quach drove off, but Huynh ―was hanging on‖ the car and cursing,
―Motherfuckers.‖ The Acura chased Quach‘s car. Quach drove up and down a few
streets. Huynh ―was hanging on to a door.‖ She had ―already let go of the money a
while ago.‖ Defendant held onto Huynh‘s hand and told Quach to stop so Huynh could
―get off.‖ Huynh‘s purse was hanging on the mirror. At some point, defendant grabbed
the purse ―real quick‖ and tossed it in the back of Quach‘s car. Defendant had his gun.
Quach said, ―Hey, get her off.‖ Quach wanted defendant to scare Huynh off the car with
his gun. According to defendant, he refused to do so, saying, ―That‘s stupid.‖ But, while
Huynh was hanging on the car, defendant fired a shot up in the air. At some point,
Huynh ―let go‖ of the car. Quach and defendant ―[k]ept on going.‖ With Huynh off the
car, the Acura rammed Quach‘s car — first, its rear bumper and then both of its sides.
Defendant shot his gun four more times to scare the driver of the other car; defendant
made it look like he was pointing, but he was pointing up.

                                             3
              A witness saw Quach‘s car traveling at around 70 miles per hour with what
appeared to be a person on the side of the car.
              Huynh‘s boyfriend, Truong Pham, was driving the Acura. He phoned 9-1-1
and said he had ―been shot at.‖ He said he rammed the other car to try to throw off the
shooter‘s aim or knock the gun out of his hand. Pham said that ―they snatched‖ his
girlfriend‘s purse, his ―girlfriend tried to take it back and it was hanging out of the car, on
the side of the car,‖ and ―she was hanging on for her life, on the side of the vehicle.‖
Pham said ―they‖ shot at his girlfriend, but he did not know ―if she got hit or not‖ or
whether ―they tried.‖ Pham did not know ―if they shot her and she fell down.‖ They had
fired ―a couple of shots‖ at Pham, but ―totally missed‖ him.
              An officer driving on patrol saw a vehicle chasing another vehicle and
pulled over the lead vehicle whose bumper was dragging on the ground. Quach was the
driver and defendant was the passenger. ―Quach was extremely nervous, hands shaking;
[defendant] was relatively calm . . . .‖ Quach had a red baseball cap on her lap and a red
bandana in her back pocket.
              Huynh‘s body was found face down in the street. Clumps of hair were
―strewn around her, her clothes were torn up, she was really dirty.‖ ―Her face was
swollen, bruised; her skin was ripped off; [she had] severe road rash on her
back; . . . there was hardly any skin left on the heels of her feet.‖ Paramedics performed
CPR on her. She was unresponsive, had no pulse, and had suffered major head injuries.
She was transported to the hospital. No gunshot wounds or gun residue were found on
her body.
              A search of Quach‘s car uncovered a firearm and a collapsible baton under
the center console, an envelope containing cash, a yellow purse on the floorboard behind
the driver‘s seat, and a bag of candies removed from their wrappers.
              A search of Pham‘s Acura uncovered a bullet hole near the front passenger
headlight and a bullet in the car.

                                               4
              Other evidence found on the streets on which the chase had taken place
included (1) Smarties candy wrappers, (2) a pair of slippers, (3) a small puddle of blood,
(4) a lighter, (5) two clumps of hair, (6) a pile of clothing consisting of a robe, a t-shirt,
and some pajama shorts, (7) red fibers from the robe, and (8) two shell casings.


                                        DISCUSSION

Substantial Evidence Supports the Murder and Attempted Murder Convictions and Gang
Enhancements
              Defendants challenge the sufficiency of the evidence to support the murder
and attempted murder convictions and the associated gang enhancements. We address
each challenge individually below, but first summarize the substantial evidence standard
of review. Under that standard, we ―review the whole record to determine whether any
rational trier of fact could have found the essential elements of the crime . . . beyond a
reasonable doubt. [Citation.] The record must disclose substantial evidence to support
the verdict — i.e., evidence that is reasonable, credible, and of solid value — such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
[Citation.] In applying this test, we review the evidence in the light most favorable to the
prosecution and presume in support of the judgment the existence of every fact the jury
could reasonably have deduced from the evidence.‖ (People v. Zamudio (2008) 43
Cal.4th 327, 357.) ―A reversal for insufficient evidence ‗is unwarranted unless it appears
―that upon no hypothesis whatever is there sufficient substantial evidence to support‖‘ the
jury‘s verdict.‖ (Ibid.) ―‗A reviewing court neither reweighs evidence nor reevaluates a
witness‘s credibility.‘‖ (People v. Albillar (2010) 51 Cal.4th 47, 60.) ―The same
standard governs in cases where the prosecution relies primarily on circumstantial
evidence.‖ (Zamudio, at p. 357.)




                                               5
              Substantial Evidence Supports the Murder Conviction
              The prosecution elected a robbery-murder theory of murder, and the court
instructed the jury on robbery and felony murder accordingly. On appeal defendant
challenges the sufficiency of the evidence to show he committed robbery. He argues the
prosecution failed to present substantial evidence he (1) personally applied force or fear
to Huynh, or (2) intended to aid or abet Quach‘s application of force to Huynh.
              A killing committed in the perpetration of robbery is first degree murder.
(§ 189.) Under the felony-murder doctrine, the defendant must have intended to commit
robbery at the time of the killing. (People v. Anderson (2006) 141 Cal.App.4th 430,
446.)
              ―Robbery is the felonious taking of personal property in the possession of
another, from his person or immediate presence, and against his will, accomplished by
means of force or fear.‖ (§ 211, italics added.) The ―force‖ required for robbery must be
at least ―a quantum more than that which is needed merely to take the property from the
person of the victim.‖ (People v. Wright (1996) 52 Cal.App.4th 203, 210.) The force
must be ―‗―sufficient to overcome the victim‘s resistance . . . .‖‘‖ (People v. Burns
(2009) 172 Cal.App.4th 1251, 1259.) Whether a defendant applied sufficient force ―is a
question of fact to be resolved by the jury taking into account the physical characteristics
of the robber and the victim.‖ (Wright, at p. 210.) ―A shove by a defendant who is larger
or stronger than his victim may lead a jury to find that the shove amounted to the
necessary ‗force.‘‖ (People v. Mungia (1991) 234 Cal.App.3d 1703, 1709.) ―The force
need not be applied directly to the person of the victim,‖ but can instead be applied to the
object in the victim‘s possession. (Wright, at p. 210.) The jury decides whether a
defendant applied sufficient force when ―‗[g]rabbing or snatching property from the
[victim‘s] hand . . . .‘‖ (People v. Morales (1975) 49 Cal.App.3d 134, 139; see, e.g.,
People v. Roberts (1976) 57 Cal.App.3d 782, 787 [evidence that victim‘s purse was
grabbed with such force that the handle broke supported jury‘s implied finding of

                                             6
requisite force], overruled on another point in People v. Rollo (1977) 20 Cal.3d 109, 120,
fn. 4, in turn superseded by statute as stated in People v. Olmedo (1985) 167
Cal.App.3d 1085, 1095-1096; People v. Church (1897) 116 Cal. 300, 304 [based on
evidence defendant grabbed gold watch and chain from victim, jury could have found the
defendant guilty of grand larceny, instead of robbery, if the jury ―saw fit‖].)
              The crime of robbery continues during asportation, i.e., during the carrying
away of the property to a place of temporary safety. (People v. Cooper (1991) 53 Cal.3d
1158, 1165.) Given the continuing nature of the crime, the force or fear element of
robbery is met when the perpetrator uses force or fear (1) to initially acquire the victim‘s
property and/or (2) to retain or escape with it. (Miller v. Superior Court (2004) 115
Cal.App.4th 216, 222.)
              Here, substantial evidence supports the jury‘s finding defendant committed
robbery either as a direct perpetrator or as an aider and abettor. His act of firing one shot
from his gun while Huynh was hanging onto the car (and before Pham began ramming
Quach‘s vehicle) is substantial evidence defendant directly applied fear to Huynh with
the intent of scaring her off the car and keeping her cash and her purse. The jury was
entitled to reject defendant‘s statement he refused Quach‘s demand that he scare Huynh
                   3
off the vehicle.
              Furthermore, the evidence was overwhelming that Quach committed
robbery and that defendant aided and abetted the crime. Quach, in order to retain and
escape with the stolen cash, applied force against Huynh by driving while the victim
hung onto the car. The robbery committed by Quach continued after Huynh fell off the

3
                Defendant argues that the Attorney General in her respondent‘s brief
conceded that defendant did not personally commit robbery by applying force to Huynh
or by shooting at Pham. The Attorney General, however, never conceded that defendant
applied no fear to Huynh. Indeed, the Attorney General did not concede that the initial
taking was a theft, as opposed to robbery, but merely stated, ―Even viewing the incident
as a theft initially . . . .‖ (Italics added.)

                                              7
car, as Quach attempted to escape with the cash. Defendant aided and abetted Quach‘s
commission of robbery by firing a gunshot while Huynh hung onto the car and then firing
four shots to stop Pham‘s pursuing vehicle.


                Substantial Evidence Supports the Attempted Murder Conviction
                Defendant contends the evidence does not support a finding he intended to
kill Pham, ―as opposed to scaring him off the chase.‖ He argues he had no motive to kill
Pham and that his refusal to shoot Huynh demonstrates he was not ―willing to kill to get
himself out of his situation.‖
                The mens rea required for attempted murder differs from that necessary for
murder. Murder requires a mental state of either express malice (i.e., intent to kill) or
implied malice (i.e., conscious disregard for life). (People v. Stone (2009) 46 Cal.4th
131, 139 (Stone).) For attempted murder, however, only express malice (i.e., intent to
kill) will suffice. (Ibid.)
                Evidence of motive may be probative of intent to kill, but is not required to
establish such intent. (People v. Smith (2005) 37 Cal.4th 733, 741.) Intent to kill may be
inferred from the defendant‘s acts and the circumstances of the crime, since there is
―‗rarely direct evidence of a defendant‘s intent.‘‖ (Ibid.) When a victim escapes death
due to the shooter‘s poor marksmanship, the shooter may still harbor a culpable state of
mind. (Ibid.)
                The evidence that (1) defendant fired five shots, (2) one bullet hit the front
of Pham‘s car, and (3) Pham rammed Quach‘s vehicle to try to throw off the shooter‘s
aim, supports the jury‘s finding defendant intended to kill Pham. Furthermore, contrary
to defendant‘s assertion, the evidence also supports a finding he was motivated to kill
Pham to eliminate a witness and to enable Quach and defendant to escape with Huynh‘s
money and purse.



                                               8
              Substantial Evidence Supports the Gang Enhancements
              Section 186.22, subdivision (b)(1)(C) requires the court to sentence a
defendant to an additional consecutive term of 10 years if he or she is convicted of a
violent felony (§ 667.5, subd. (c)) ―committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members‖ (§ 186.22, subd. (b)(1)). Defendant
contends the evidence was insufficient to show he committed the murder and attempted
murder for the benefit of or in association with a gang. Rather, he asserts the evidence
showed he ―had a purely personal motive and stole the money to benefit himself‖ because
he ―needed the money to pay his bills.‖
              On the date of the incident, defendant and Quach were active participants in
H-Group (or Hitman Group), an Asian criminal street gang. H-Group‘s gang color is red.
The primary activities of H-Group are robbery, sales of Ecstasy and marijuana, and
assault with deadly weapons. H-Group participants commit crimes with their fellow
gang members. The gang expert testified that gang participants generally plan crimes
like robberies and drug sales in advance and coordinate individual roles. In response to a
hypothetical question, he opined the crime was committed for the benefit of a gang
because there was a monetary gain and the robbery bolstered the gang‘s reputation since
one of its primary activities is robbery. He opined the crime was committed in
association with the gang because defendant committed the crime with a known, trusted
associate of the gang.
              Thus, as in People v. Albillar (2010) 51 Cal.4th 47, 61-62, defendant and
Quach committed the offenses in concert, actively assisted each other in committing
these crimes, and relied on each other‘s cooperation. There was thus substantial evidence
they acted in association with the gang. (Id. at p. 62.) The record also supports the jury‘s
finding the crimes were committed to benefit H-Group. ―Expert opinion that particular
criminal conduct benefited a gang by enhancing its reputation for viciousness can be

                                              9
sufficient to raise the inference that the conduct was ‗committed for the benefit of . . . a[]
criminal street gang‘ within the meaning of section 186.22[, subdivision] (b)(1).‖ (Id. at
p. 63.) Defendant committed robbery, one of H-Group‘s primary activities, and thereby
enhanced the gang‘s reputation as well as his own.

The Court Did Not Err by Refusing to Instruct the Jury on Involuntary Manslaughter
              Defendant contends the court erred by failing to instruct the jury on
involuntary manslaughter as a lesser included offense of murder on the theory that
Huynh‘s death occurred during defendant‘s commission of grand theft rather than
robbery.
              After the close of evidence, defense counsel requested an instruction on
involuntary manslaughter as a lesser included offense of murder. The prosecutor argued
such an instruction would be legally incorrect, as well as prejudicial to the People. The
prosecutor stated that involuntary manslaughter is not a lesser included offense of felony
murder, and pointed out that, although the People had charged defendant with a
―straight‖ section 187 murder, the prosecution had made it clear from the start of the case
that they were proceeding on a theory of felony murder, which requires no particular
mental intent or state of mind. The court referred to the bench notes to CALCRIM No.
580 on involuntary manslaughter, which state: ―The court has a sua sponte duty to
instruct on involuntary manslaughter as a lesser included offense of murder when there is
sufficient evidence that the defendant lacked malice.‖ The court concluded that because
malice is not an element of felony murder, lack of malice would not reduce the offense to
involuntary manslaughter in this case. Accordingly, the court did not instruct the jury on
involuntary manslaughter.
              A trial court bears a sua sponte duty to instruct the jury on lesser included
offenses if there is substantial evidence the defendant committed only the lesser crime.
(People v. Breverman (1998) 19 Cal.4th 142, 148-149, 162.) It is well established that


                                              10
involuntary manslaughter is a lesser included offense of murder predicated on malice,
either express or implied. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1145.) But
whether involuntary manslaughter is a lesser included offense of felony murder (which
has no malice requirement (People v. Robertson (2004) 34 Cal.4th 156, 164, disapproved
                                                                                        4
on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1200) is less clear.
               In any event, as discussed earlier in this opinion, the evidence was
overwhelming that defendant committed felony murder. There was no substantial
evidence he committed only the lesser crime of involuntary manslaughter, so as to trigger
a sua sponte duty for the court to instruct on that offense. ―A trial court must instruct the
jury sua sponte on an uncharged offense that is lesser than, and included in, a greater
offense with which the defendant is charged ‗only if [citation] ―there is evidence‖‘
[citation,] specifically, ‗substantial evidence‘ [citations] , ‗―which, if accepted . . . ,
would absolve [the] defendant from guilt of the greater offense‖ [citation] but not the
lesser.‘‖ (People v. Waidla (2000) 22 Cal.4th 690, 733.)

4
              The parties have not directed us to, nor have we found, any cases deciding
whether involuntary manslaughter is a lesser included offense of felony murder. Many
cases have briefly mentioned, without deciding, the issue of whether second degree
murder is a lesser included offense of first degree felony murder. Our Supreme Court has
―concluded that first degree premeditated murder is not a lesser included offense of first
degree felony murder, but ha[s] left open the question as to second degree murder.‖
(People v. Wilson (2008) 43 Cal.4th 1, 16, fn. 5; see also People v. Taylor (2010) 48
Cal.4th 574, 623; People v. Huynh (2012) 212 Cal.App.4th 285, 314.) More recently, our
Supreme Court has observed that, although it declined in People v. Valdez (2004) 32
Cal.4th 73, 114–115, footnote 17, to determine whether second degree murder is a lesser
included offense of first degree felony murder, it did note in Valdez (id., at p. 140 (dis.
opn. of Chin, J.)) ―the Attorney General’s contention that second degree murder is not a
lesser included offense of first degree felony murder, because malice is an element of
second degree murder, but is not an element of first degree felony murder.‖ (People v.
Castaneda (2011) 51 Cal.4th 1292, 1328-1329, first set of italics added.) Reiterating the
point, the Castaneda court noted that the defendant there did ―not address . . . how second
degree murder, which requires malice, can be a lesser included offense of first degree
felony murder, which does not require malice . . . .‖ (Id. at p. 1329.)


                                               11
Sentencing Errors
              Defendant contends, and the Attorney General agrees, that the court erred
by imposing, as to count 1, a consecutive 10-year gang enhancement under section
186.22, subdivision (b)(1)(C), instead of the 15-year parole minimum mandated by
section 186.22, subdivision (b)(5). It is true the court erred. In People v. Lopez (2005)
34 Cal.4th 1002, 1004, our Supreme Court stated, ―[S]ection 186.22, subdivision (b)
establishes alternative methods for punishing felons whose crimes were committed for
the benefit of a criminal street gang. Section 186.22, subdivision (b)(1)(C) . . . imposes a
10-year enhancement when such a defendant commits a violent felony. Section
186.22(b)(1)(C) does not apply, however, where the violent felony is ‗punishable by
imprisonment in the state prison for life.‘ [Citation.] Instead, section 186.22, subdivision
(b)(5) . . . applies and imposes a minimum term of 15 years before the defendant may be
considered for parole.‖
              Defendant further contends, and the Attorney General agrees, that the court
                                                                         5
erred by refusing to consider striking the gang enhancement to count 2. They are right.
The court erroneously believed it had no discretion to strike the gang enhancement.
Section 186.22, subdivision (g) accorded the court that discretion: ―[T]he court may
strike the additional punishment for the enhancements provided in this section . . . in an
unusual case where the interests of justice would best be served, if the court specifies on
the record and enters into the minutes the circumstances indicating that the interests of
justice would best be served by that disposition.‖
              Finally, the Attorney General correctly points out the court erroneously
imposed indeterminate terms of 20 years to life on the firearm enhancements to counts 1

5
             Defendant also makes this argument with respect to count 1, but ―a trial
court may not strike or otherwise refuse to impose the alternate penalty prescribed by
section 186.22, subdivision (b)(5) under the provision authorizing a court to ‗strike the
additional punishment for the enhancements provided in this section.‘‖ (People v.
Campos (2011) 196 Cal.App.4th 438, 449.)

                                             12
and 2. Under section 12022.53, subdivision (c), the proper punishment for each
enhancement is a 20-year determinate prison term.


                                       DISPOSITION


              The trial court is directed to prepare an amended abstract of judgment and
forward a certified copy to the Department of Corrections and Rehabilitation, to reflect a
determinate 20-year prison term on each firearm enhancement to counts 1 and 2, and to
correct the associated court minutes. We further direct the trial court to (1) strike the 10-
year term for the gang enhancement to count 1 and impose the 15-year parole minimum
on count 1, and (2) conduct a new sentencing hearing to determine whether to exercise its
discretion to decide whether to strike the gang enhancement to count 2. In all other
respects, the judgment is affirmed.




                                                  IKOLA, J.

WE CONCUR:



MOORE, ACTING P. J.



ARONSON, J.




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