Filed 3/18/13 P. v. Nguyen 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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


THE PEOPLE,

     Plaintiff and Respondent,                                         G046378

         v.                                                            (Super. Ct. No. 07WF1586)

ANH DUOC NGUYEN,                                                       OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, William
R. Froeberg, Judge. Affirmed.
                   Lynda A. Romero, 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, Assistant Attorney General, Meredith White and
Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
             A jury convicted defendant Anh Duoc Nguyen of five counts of attempted
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murder (Pen. Code, §§ 187, subd. (a), 664), and one count each of shooting at an
occupied motor vehicle (§ 246) and active participation in a criminal street gang
(§ 186.22, subd. (a)). The jury also found true associated gang and gun use
enhancements. (§§ 186.22, subd. (b)(1), 12022.5, subd. (a), 12022.53, subd. (d)). The
court sentenced defendant to a prison term of 15 years to life for one attempted murder
conviction, plus a consecutive term of 25 years to life for one gun use enhancement,
along with concurrent sentences for the remaining attempted murder convictions and gun
use enhancements. Pursuant to section 654, the court stayed execution of sentence on the
remaining convictions.
             On appeal defendant contends insufficient evidence supports four attempted
murder convictions. We affirm the judgment.


                                         FACTS


             In March 2007, defendant and Tien Phan exchanged insulting messages via
online social media. One of defendant‟s messages to Phan stated: “Ha, ha, I‟m going to
get a .45 and shoot at your pussy face. Fucking Wah Ching in the house.”
             On June 2, 2007, defendant and Nghia Duong were members of the Wah
Ching gang. That evening, defendant and around nine other people arrived at a doughnut
shop where Tien Phan and three of Phan‟s friends were present. Defendant‟s group
yelled, “Wah Ching.” Defendant chased Phan into the shop and kicked him, causing
Phan to jump over a counter. Duong asked the people in front of the shop, “You guys got
shit with us?” They replied, “No.” Duong yelled, “This is Wah Ching.”



1
             All statutory references are to the Penal Code.

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                 Defendant, Duong, and several friends went to Bowling Green Park and
smoked pot. There, Duong received a phone call from someone who claimed to be from
the Dragon Family gang. The caller said he wanted to talk about the doughnut shop
incident and “make sure everything [was] all right.” The caller asked Duong where he
was and Duong replied he was at Bowling Green Park.
                 About 10 minutes later, at least three cars drove into Bowling Green Park
and parked. Around five people got out of the cars. Someone screamed, “This is Dragon
Family.”
                 Duong felt disrespected. He told defendant, “This is a setup. Let‟s go back
to my house.” Defendant said, “Go grab the gun.” Duong and defendant drove to
Duong‟s house where they retrieved a nine-millimeter gang gun.
                 It was around 2:00 a.m. and dark. At the park, the two opposing groups
(around four or five people per side) waited for defendant to arrive. Loc Tran, a friend of
Tien Phan, testified the groups were there to resolve the dispute by witnessing “whoever
[had] started [the fight] just go one-on-one.” Tien Phan testified he was there to “make
peace.” Peter Hoang, an eventual victim, believed defendant wanted the two groups to
“talk it out.”
                 The Wah Ching group phoned defendant and told him to come talk it out
and get it taken care of. The Wah Ching group reported to the other side that defendant
was coming.
                 Duong was driving toward the park with defendant in the passenger seat
holding the gun. Duong received a phone call from a friend at the park who said the
people there wanted to talk to him. Duong told the friend to “get out [of] there.” Duong
then hung up.
                 At the park, the Wah Ching group, still on the phone, suddenly began
walking away. The other side sensed “something bad” was going to happen so they
started running toward their parked cars.

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              Duong arrived at the park and drove very slowly toward a group of people
by a tree near a parked car. Duong drove very close to the parked car and stopped for
five or six seconds. Defendant leaned out of the passenger side, yelled, “Wah Ching” or
“Wah Ching for life,” and, wearing gloves, fired two or three shots at the rear window of
the parked car. Inside the parked car were Tien Phan and three of his friends. At least
one shot hit the car‟s window.
              Defendant then raised his arm and fired shots at people on a hill at the park
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or running away from the area by the tree. Duong‟s car was about 53 feet away from
Loc Tran, who hit the ground and started crawling. Peter Hoang, running from the tree,
saw the shooter (about 55 feet away) point the gun toward where Hoang was running and
saw the muzzle flash come his way. Hoang fell to the ground, having been shot in the
back.
              During the entire incident, defendant fired a total of five to seven shots. A
police officer found 5 nine-millimeter shell casings at the scene.
              Hoang had surgery and was in the hospital for eight or nine days. At the
time of defendant‟s trial, Hoang continued to suffer symptoms from the shooting.


                                       DISCUSSION


Substantial Evidence Supports Defendant’s Attempted Murder Convictions
              Defendant contends four of his five attempted murder convictions must be
reversed because there is insufficient evidence he had a specific intent to kill the four
persons inside the parked car. The Attorney General counters that defendant‟s “act of
firing five rounds from a nine millimeter handgun at a group of suspected gang rivals at



2
              Duong testified defendant first shot at the people running from the tree
before he shot at the parked car.

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close range supports a reasonable inference that he intended to kill someone each time he
fired the gun.”
              Under the applicable standard of review, we “review the whole record in
the light most favorable to the judgment below to determine whether it discloses
substantial evidence — that is, evidence which is reasonable, credible, and of solid value
— such that a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “„The test is whether substantial
evidence supports the [conclusion of the trier of fact], not whether the evidence proves
guilt beyond a reasonable doubt.‟” (People v. Crittenden (1994) 9 Cal.4th 83, 139.) We
“„presume in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.‟” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
“Before the judgment of the trial court can be set aside for insufficiency of the evidence
to support the verdict of the jury, it must clearly appear that upon no hypothesis whatever
is there sufficient substantial evidence to support it.” (People v. Redmond (1969) 71
Cal.2d 745, 755.) As to the element of intent, if “„the evidence is sufficient to justify a
reasonable inference that the requisite intent existed, the finding of its presence in a
particular case, may not be disturbed on appeal [citations].‟” (People v. Pitts (1990) 223
Cal.App.3d 606, 888.)
              The intent 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, 139-140 (Stone).) For attempted murder, however, only express malice will suffice.
(Ibid.)
              But even though attempted murder requires a specific intent to kill, what is
needed “„is the intent to kill a human being, not a particular human being.‟” (People v.
Perez (2010) 50 Cal.4th 222, 230 (Perez).) Thus, in Stone, our Supreme Court held that
“a person who shoots into a group of people, intending to kill one of the group, but not

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knowing or caring which one, can be convicted of attempted murder.” (Stone, supra, 46
Cal.4th at p. 134.) “An indiscriminate would-be killer is just as culpable as one who
targets a specific person.” (Id. at p. 140.)
              Furthermore, if the defendant has a specific victim in mind, “under some
facts a jury could find the person also, concurrently, intended to kill — and thus was
guilty of the attempted murder of — other, nontargeted, persons.” (Stone, supra, 46
Cal.4th at p. 137.) For example, a defendant may intend to murder others within a “„kill
zone‟” of the target, such as by (1) placing a bomb on an airplane, thereby ensuring the
death of the primary target and the other passengers, or (2) firing “„a flurry of bullets‟” at
a fleeing car containing a primary target and other persons. (Ibid., summarizing People v.
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Bland (2002) 28 Cal.4th 313, 329-331.)
              In People v. Smith (2005) 37 Cal.4th 733, the defendant fired only one shot,
yet was convicted of two counts of attempted murder. (Id. at p. 737.) The defendant had
fired a single bullet into a slowly moving car, narrowly missing a mother and her infant
son. (Ibid.) Our Supreme Court rejected the defendant‟s contention insufficient evidence
showed he intended to kill the baby, and affirmed both convictions. (Id. at p. 736.)
Evidence that the “defendant purposefully discharged a lethal firearm at the victims, both
of whom were seated in the vehicle, one behind the other, with each directly in his line of
fire, can support an inference that he acted with intent to kill both.” (Id. at p. 743.)
              Generally, however, the number of shots fired will equal the number of
victims a defendant intends to kill. In Perez, supra, 50 Cal.4th at page 224, the defendant
“fired a single bullet at a distance of 60 feet, from a car going 10 to 15 miles per hour, at
a group of seven peace officers and a civilian . . . .” The defendant believed he was

3
                The “„concurrent intent‟ or „kill zone‟ theory „is not a legal doctrine
requiring special jury instructions . . . .‟” (Stone, supra, 46 Cal.4th at p. 137.) Whether
there is a kill zone depends on “the nature and scope of the attack.” (Perez, supra, 50
Cal.4th at p. 232; see also People v. McCloud (2012) 211 Cal.App.4th 788 [discussing
the kill zone theory].)

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shooting at rival gang members, but was not “targeting any particular individual when he
fired at the group.” (Ibid.) Our Supreme Court held that “a rational trier of fact could
find that defendant‟s act of firing a single bullet at a group of eight persons from a
distance of 60 feet established that he acted with intent to kill someone in the group he
fired upon.” (Id. at p. 230.) The evidence was thus sufficient to support one conviction
of premeditated attempted murder of a peace officer. (Ibid.) But the evidence was
“insufficient to sustain [the] defendant‟s convictions of the remaining seven counts of
attempted murder” (ibid.), because there was no evidence the defendant (1) specifically
targeted a particular individual, (2) “specifically intended to kill two or more persons
with the single shot,” or (3) specifically intended to kill more than one person in the
group but was thwarted from firing additional shots by circumstances beyond his control
(id. at p. 231).
               Applying these principles, evidence that defendant fired at least five times
into groups of people at a relatively close range — either indiscriminately at rival gang
members or concurrently at Tien Phan and those in the car with him — was sufficient to
support an inference he intended to kill someone each time he fired a shot. But defendant
contends, based on the prosecutor‟s closing argument, that the People were required to
prove he intended to kill five particular persons — specifically, Hoang (the victim shot
in the back) and the four people in the parked car.
               The amended information identified the attempted murder victims as John
Does Nos. 1 through 5. The prosecutor in his opening statement did not identify specific
victims by name, but did state that defendant “fired five shots at four individuals who
were inside a car and one of the individuals that was with that group.” In his closing
argument, the prosecutor identified the victims as Hoang and the four occupants of the
parked car. The prosecutor argued defendant tracked his target, Tien Phan, and had a
concurrent intent to kill the people in the car by waiting until they all got into the car “in
one nice, neat little package.” The prosecutor argued there was evidence that “a bunch of

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shots” or possibly three shots were fired at the car. The prosecutor argued defendant did
not limit his intent to kill to Tien Phan only, because defendant shot at people outside the
car who were running away.
              Based on the prosecutor‟s identification of specific victims, defendant
contends there was insufficient evidence he intended to kill four people in the parked car
when he fired three shots at it. He asserts there was no evidence the victims in the car
were seated in such a way that one shot could hit more than one person.
              The Attorney General fails to respond to this contention. But the
prosecutor‟s identification of particular victims cannot be ignored. Under the reasoning
of Perez, defendant could be properly convicted of only three counts of attempted murder
for firing three shots into the car, absent evidence he “specifically intended to kill two or
more persons with [a] single shot,” or was thwarted from firing additional shots by
circumstances beyond his control, or targeted a particular victim with a concurrent intent
to kill others in the kill zone. (Perez, supra, 50 Cal.4th at p. 231.) There was clearly no
evidence of the first two exceptions. As to the kill zone theory, if defendant fired four
times at the car, the kill zone theory might apply under the reasoning that defendant could
not see which person in the car was Tien Phan and thus had to kill all four persons to
ensure Phan‟s death. But the evidence showed defendant fired three shots at the car.
There was no evidence he fired a flurry of bullets specifically at the car.
              We must thus determine whether one of defendant‟s attempted murder
convictions must be reversed for insufficient evidence solely because the prosecutor in
his closing argument tied four of the charges to specific victims in the parked car and the
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evidence predominantly showed defendant fired three shots at the car. As already


4
              Three witnesses testified defendant fired two or three shots at the car.
Another witness testified the shooter started shooting at the car, at which point the
witness hit the ground and bullets were “flying everywhere after that.” This last
testimony is not substantial evidence that defendant aimed four or more bullets at the car.

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discussed, absent the prosecutor‟s comments, substantial evidence supports all five
attempted murder convictions. The evidence overwhelmingly supports inferences that
defendant (1) fired indiscriminately at rival gang members at least five times, or (2) fired
concurrently at Tien Phan and others in the car at most three times, and indiscriminately
at rival gang members for the necessary balance of murder attempts.
              Does it matter that the jury may have followed the prosecutor‟s
suggestion/direction that four of the victims were the occupants of the parked car? To
answer this question, we will evaluate the possible impact on the jury of the prosecutor‟s
comments, focusing on whether there is a reasonable likelihood that the jury was misled
or misconstrued or misapplied the prosecutor‟s remarks.
              The jury‟s verdict forms provide no evidence that the jurors misapplied the
prosecutor‟s remarks or were misled by them. On the verdict forms, the jury found
defendant guilty of attempted murder “as charged in” the information, i.e., without
identifying any specific victims.
              Nor was the jury bound to follow the prosecutor‟s theory advanced in his
closing argument, which was inconsistent with the operative information: “The
prosecuting attorney may discuss the facts and the law, advance any theory fairly within
the evidence, and urge any conclusions deemed proper. The logic of the prosecutor‟s
argument is for defense counsel to challenge and for the jury ultimately to determine.”
(5 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Trial, § 757, p. 1176,
italics added.) Furthermore, the court instructed the jury that the attorneys‟ remarks in
their opening statements and closing arguments were not evidence; thus, the jury knew
the prosecutor‟s statements had limited import. “„[We] presume that jurors, conscious of
the gravity of their task, attend closely the particular language of the trial court‟s
instructions in a criminal case and strive to understand, make sense of, and follow the
instructions given them.‟” (United States v. Olano (1993) 507 U.S. 725, 740.) In sum,
although the prosecutor appears to have been confused, the jury was not.

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                 Finally, any error was harmless under any standard as “it is „clear beyond a
reasonable doubt that the jury would have returned a verdict of guilty‟ [citation] even if
the prosecutor had not made the comment at issue.” (People v. Carter (2005) 36 Cal.4th
             5
1215, 1267.) The evidence was overwhelming.


                                        DISPOSITION


                 The judgment is affirmed.



                                                    IKOLA, J.

WE CONCUR:


FYBEL, ACTING P. J.


THOMPSON, J.

5
               Defendant does not argue he was misled to his prejudice in presenting his
defense. As noted above, the charges in the operative information specified no particular
victims. The evidence presented by the parties at trial did not focus on any individual
victims targeted by defendant, other than Tien Phan. The People presented evidence
defendant fired a total of five or more shots at the parked car and at people outside the
car. Defendant presented evidence suggesting the shooter‟s identity was unclear and that
someone in the Dragon Family group (rather than defendant) might have done the
shooting. Defense counsel, in her closing argument, did adopt the prosecutor‟s
identification of the victims, listing them as Hoang and the four occupants of the parked
car. But defense counsel‟s closing argument about these persons was that these
individuals never identified defendant as the shooter. The gist of her argument was that
Duong (defendant‟s accomplice) or a Dragon Family member could have been the
shooter, as opposed to defendant. She disputed the prosecutor‟s statement that “there was
a flurry of bullets at this car,” noting (1) the car had no “shot out windows” and only one
hole (in the driver‟s door), (2) no one in the car was shot, and (3) the jury was never
presented with any bullets taken out of the car.


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