The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding with appointed counsel, has filed a petition pursuant to 28 U.S.C. § 2254. Petitioner was convicted in San Joaquin County Superior Court following a jury trial in 1997 of first degree murder, attempted murder and carrying a loaded firearm in a vehicle for which he was sentenced to a term of 25 years to life. Amended Petition (AP) (docket # 23), p. 1. Petitioner raises the following grounds: 1) insufficient evidence to sustain the first degree murder conviction (also applicable to petitioner's conviction for attempted murder); 2) trial court's failure to identify and define the "target offenses" under the natural and probable consequences doctrine violated petitioner's due process rights; 3) prosecutorial misconduct violated petitioner's right to due process; 4) cumulative effect of errors violated petitioner's due process rights. AP, pp. 5-24.*fn1
The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
As a preliminary matter, the Supreme Court has recently held and reconfirmed "that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been 'adjudicated on the merits.'" Harrington v. Richter, 131 S.Ct. 770, 785 (U.S. 2011). Rather, "when a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 784-785, citing Harris v. Reed, 489 U.S. 255, 265, 109 S.Ct. 1038 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785.
The Supreme Court has set forth the operative standard for federal habeas review of state court decisions under AEDPA as follows: "For purposes of § 2254(d)(1), 'an unreasonable application of federal law is different from an incorrect application of federal law.'" Harrington, supra, 131 S.Ct. at 785, citing Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495 (2000). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Id. at 786, citing Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140 (2004).
Accordingly, "a habeas court must determine what arguments or theories supported or . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. "Evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.'" Id. Emphasizing the stringency of this standard, which "stops short of imposing a complete bar of federal court relitigation of claims already rejected in state court proceedings[,]" the Supreme Court has cautioned that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id., citing Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166 (2003).
The undersigned also finds that the same deference is paid to the factual determinations of state courts. Under § 2254(d)(2), factual findings of the state courts are presumed to be correct subject only to a review of the record which demonstrates that the factual finding(s) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." It makes no sense to interpret "unreasonable" in § 2254(d)(2) in a manner different from that same word as it appears in § 2254(d)(1) -- i.e., the factual error must be so apparent that "fairminded jurists" examining the same record could not abide by the state court factual determination. A petitioner must show clearly and convincingly that the factual determination is unreasonable. See Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 974 (2006).
The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S. Ct. 357 (2002). Specifically, the petitioner "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, supra, 131 S.Ct. at 786-787. "Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 746 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76, 127 S.Ct. 649, 653-54 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection). The established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. 3, 9, 123 S. Ct. 362, 366 (2002).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early, supra, 537 U.S. at 8, 123 S.Ct. at 365. Where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
Petitioner relies on the facts of the offenses as set forth in the Third Circuit Court of Appeals decision which consolidated all of the direct appeals of petitioner and his three co-defendants in an unpublished decision, People v. Kiet Tran, et al., 2003 WL 21061575 (Cal. App.3rd Dist. May 13, 2003). See Amended Petition (AP), p. 2 n. 1. Respondent asks the court, pursuant to Fed. R. Evid. 201, to take judicial notice of the Findings and Recommendations,*fn2 in a co-defendant's, Nhat Nguyen's, federal habeas petition, Nguyen v. Kane, Case No. 2:04-CV-1829 GEB JFM (HC) (2009 WL 3823962) (E.D. Cal. Nov. 13, 2009), a copy of which respondent attaches as Exhibit A to the Answer. Answer, p. 5 & Ex. A. Although petitioner disagrees with the ultimate conclusions drawn by Magistrate Judge Moulds, he concedes that judicial notice may be taken of the decisions of other courts pursuant to Rule 201(b)(2).*fn3 The undersigned grants the request for judicial notice of November 13, 2009 Findings and Recommendations of Nguyen v. Kane, Case No. 2:04-CV-1829 GEB JFM (HC). See United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) ("a court may take judicial notice of its own records in other cases...."). Judge Moulds in his Findings and Recommendations takes the facts from the same Third District Court of Appeal opinion*fn4 that petitioner cites.
Sixteen-year-old Andy Tran suffered a fatal gunshot wound to his chest as he ducked behind the couch in a friend's living room. An adult houseguest in the home, Sen Dang, was also shot, but not fatally, during the same incident. A jury convicted defendants Kiet Ahn Tran (Kiet), Si Van Dang (Si), Nhat Minh Nguyen (Nhat), and Len Nguyen (Len) of the first degree murder of Andy Tran (Andy) (Pen.Code, § 187) FN1 and the attempted murder of Sen Dang (§§ 664/187).FN2
FN1. Unless otherwise designated, all further statutory references are to the Penal Code.
FN2. Because several defendants, the deceased, and some witnesses have identical surnames, for clarity and out of no disrespect, we shall refer to the defendants and the deceased by their first names.
FACTUAL AND PROCEDURAL BACKGROUND
Because defendants contest the sufficiency of the evidence, " 'we must view the evidence in the light most favorable to the People and must 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, 26 Cal.Rptr.2d 23, 864 P.2d 103, citation omitted.) Based on that standard, the evidence at trial established the following:
I. The Shooting and Its Aftermath
At the time of these events, both defendant Len and the victim,
Andy, were students at Plaza Robles High School, a continuation high school. Len attended the first daily session, which ended at 10:15 each morning, and Andy attended the second session, which began at 10:25 a.m.
Andy was a close friend of Cuong Phan's. Cuong Phan lived with his family across the street from the school, and Andy often went to his house (the Phan house) before or after school. Although Len had also visited the Phan house, Cuong Phan observed that Len and Andy did not get along.
On March 6, 1996-the day before the shooting-shortly after the first session of the high school, Len and Andy got into a fight outside the Phan house after Andy told Len to shut the door to the house and Len failed or refused to do so. The fight did not last long. And when it was over, Cuong Phan's cousin took Len home. FN4
FN4. Cuong Phan's cousin was Tang Tran, also called Tyrone. Another defendant, Si, had visited Tang Tran at the Phan house several times.
Len immediately contacted defendant Si and reported that he had experienced a problem with Andy. All four defendants then went to the Phan house, searching for Andy and Cuong Phan, but neither were there.
The next morning, Si called defendants Kiet and Nhat to wake them, picked them up at their respective homes, and drove them to the Phan house, where they arrived about 10:10 a.m. Cuong Phan was inside with his family, his parents' friend Sen Dang, and his friends Phillip Nguyen and Huy Vo. Si approached the Phan house and knocked on the front door. When no one answered, Si returned to his parked car and stood smoking and talking with Kiet and Nhat.
A few minutes later, Si, Kiet, and Nhat saw Andy's mother drop him off for the second school session. Passing a short distance from where the three defendants then stood, Andy approached the Phan house, knocked, and was admitted.
Si waited for Len. As the first school session ended, Len approached the other defendants standing near Si's car. The four appeared to talk seriously for a moment. Then, Si, Nhat, and Kiet took off their jackets and put them into the car, and all of the defendants approached the Phan house. Cuong Phan testified at trial that through a window, he saw that Si and two others were approaching the house.
Suddenly, the front door opened. Testimony was in conflict as to whether defendants knocked on the door and were admitted by someone inside the house, or merely let themselves in. In any event, defendants stepped into the living room entry or stood just outside the entry as Cuong Phan, Andy, Phillip Nguyen, and Huy Vo simultaneously entered the living room from the hall. FN5 Sen Dang was also in the living room, having slept the night on the couch.
FN5. Testimony at trial about which of the four defendants were in the house was somewhat in conflict. Cuong Phan and Huy Vo testified that only three defendants-Si, Nhat, and Kiet-were in the house. But students waiting across the street for the second session to begin saw defendants approach the house, and anticipating a fight, watched to see what would happen. One such student saw all four defendants enter the house, led by Si and Len. Si also testified that Len was in the house with him.
A witness across the street from the Phan house testified that as defendants entered the house, they "threw up" their hands in a quick gesture, as if to indicate that they were "calling someone out ... to fight."
Cuong Phan told Si to "[g]et the fuck out of my house." Si responded, "[F]uck you," and asked Kiet for the gun. Kiet pulled a black handgun from his waistband and handed it to Si; Si started shooting in Andy's direction. Andy ducked behind the couch, but was killed by a bullet that pierced the couch and went through his chest. Once struck by the bullet, Andy fell face down onto the floor. Sen Dang was hit near the left ankle by a bullet.
Witnesses in the house testified that Si began shooting immediately or within five seconds of his exchange with Cuong Phan. Witnesses across the street likewise testified that Si started shooting "right away" after entering the house at virtually the same moment that the door opened. Those who heard or saw the shots generally agreed that all of the shots were fired from the vicinity of the front door, although testimony on the number of shots fired varied from between three and five to eight.
Defendants ran to Si's car, but it failed to start. They accordingly fled on foot. Cuong Phan appeared to give chase, but quickly returned to the house. Some witnesses testified that Cuong Phan had no gun and that his hands were empty. However, Si claimed that Cuong Phan had a gun as he chased defendants and claimed that he heard gunshots.
Responding quickly to the 911 call from the Phan house,FN6 police recovered a total of five spent nine-millimeter shell casings from the linoleum living room entry and just outside the front door. Police also searched outside the house and around the block for other shell casings and blood, but found none. Investigating Department of Justice criminalists concluded, based on the location of the bullet holes, that all of the shots had been fired from the direction of the front door toward the couch.
FN6. The 911 call was received at about 10:18 a.m.
However, a single spent .380 shell casing was found behind the couch near where Andy lay after he was shot. Both officers and criminalists observed that the casing appeared to have dust on it and concluded that it was neither recently placed there nor involved in the shooting.FN7 A criminalist also noted that there was no evidence of powder marks on the back of the couch or bullet strikes near the front door so as to suggest that the .380 shell casing had been discharged recently. A thorough search of the Phan house after the shooting revealed no evidence of weapons or live ammunition, and officers found no weapons on Andy, Cuong Phan, Phillip Nguyen, or Huy Vo.
FN7. Members of the Phan family testified that they had never seen anyone clean behind the couch.
After hiding for a while in a neighbor's yard, defendants contacted a friend, Hung Nguyen, who picked them up in his car.
Later that day, police observed Hung Nguyen's car (in which Kiet was then the sole passenger) arrive at Si's house, where Hung Nguyen retrieved a black bag, which he put into the car's passenger compartment. Hung Nguyen later testified that Si had asked him to "save" the bag, and that Si had agreed to pick it up the next day. The black bag contained a sawed-off shotgun without a serial number and several boxes of ammunition. In the trunk, police also found a shotgun and a purple gym bag that contained ammunition and three more loaded guns, including a loaded nine-millimeter pistol. In total, more than 200 rounds of ammunition were recovered from the car.
By evening on the day of the shooting, all four defendants and Hung Nguyen had been apprehended. Police observed that Si had a small scratch on the back of his leg.
Defendants waived their Miranda FN8 rights and agreed to be interviewed by police. Nhat admitted that he was at the house during the shooting and said that his fingerprints might be on the gun-a black semiautomatic nine-millimeter pistol-because he had carried the gun as he ran from the scene, and later hid it in a neighboring yard. Len also admitted that he had gone to the Phan house on the morning of the shooting. On the other hand, Kiet denied being in the house when Andy was shot; he told police that he had waited in the car while the others were inside, and ran when he heard gunfire.
FN8. Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
The nine-millimeter pistol recovered from the purple bag in the trunk of Hung Nguyen's car proved to be the murder weapon. And a microscopic evaluation of the nine-millimeter shell casings found at the Phan house revealed that all were fired by that pistol, including the bullet that killed Andy.
The fingerprints of Si and Nhat were recovered from Si's car outside the Phan house. Kiet's palm print was recovered from the shotgun found in the trunk of Hung Nguyen's car.
Defendants were charged with the first degree murder of Andy (§ 187 [count 1] ) and the attempted murder of Sen Dang (§§ 664/187 [count 2] ). Arming and personal firearm use enhancements (§§ 12022, subd. (a)(1), 12022.5, subd. (a)(1)) were alleged against all defendants except Len, against whom only an arming enhancement was alleged (§ 12022, subd. (a)(1)). As to Si only, it was also alleged that he had inflicted great bodily harm against Sen Dang (§ 12022.7). Hung Nguyen was charged as an accessory to murder after the fact. (§ 32 [count 3] ).
Hung Nguyen and the defendants (except for Len) were also charged with receiving a stolen nine-millimeter, semiautomatic pistol (§ 496, subd. (a) [count 4] ), and Kiet, Len, and Hung Nguyen were charged with other weapon offenses not relevant here.
II. The Prosecution Theory
The prosecution's theory at trial was that defendants were members of a criminal street gang called the Mafia Asian Crew, that they believed Andy to be a member of a rival street gang, and that the shooting was a "home invasion murder" committed in retaliation for Andy's fight with Len the previous day.
In support of that theory, the prosecution introduced evidence that Nhat told a jail classification officer FN9 after his arrest that he was a member of the Mafia Asian Crew (MAC) and that its members had problems with gangs (among others) named Vietnamese (or Viet) Asian Pride (VAP) and Lifetime Brothers. Nhat also said that Andy and most of the others at the Phan house were members of the Lifetime Brothers.
FN9. Classification officers are charged with evaluating with whom arrestees should be housed in jail.
Si's girlfriend, Ahn Phan, told police that "Si and his friends FN10 belonged to MAC" and that MAC members were having problems with members of the gang VAP.FN11
FN10. Ahn Phan did not identify "Si's friends," but during his interview with police, Si repeatedly referred to Len as "my friend."
FN11. At trial, however, Si's girlfriend denied that Si was a member of MAC.
Si advised the classification officer that if he were housed in jail with members of the Lifetime Brothers or VAP, there would be trouble because Andy was a member of one of those gangs-although not too much trouble because most of them were juveniles. Si also said that his friends might be recognized as gang members. Although Si denied gang membership for himself, when officers told him that his girlfriend had identified the gang in which he was a member, he agreed to tell the truth if they named the gang. The officer responded, "You got it. M.A.C. Sorry." And Si responded, "You got me, huh." Checking, the officer asked, "Okay, so, is that true?" And Si responded, "Yeah. No. Yeah."
A student watching the Phan house from across the street on the morning of the shooting testified that she thought there might be gunplay when the defendants suddenly appeared in a group at the Phan house because they had not "gotten along" with Andy and his friends for a long time.
Sometime before trial, Hung Nguyen pleaded no contest to the charges against him. He testified under a grant of immunity that after the shooting, Kiet had retrieved from Kiet's house the purple gym bag that was in his car trunk and which later proved to contain the murder weapon, and a long wrapped item that could have been the shotgun found in his trunk.
Of the defendants at trial, only Si testified. He admitted shooting Andy, but testified that he had done so in self-defense.
Si testified that immediately after he entered the Phan house, Andy confronted him with a .380-caliber automatic handgun and shot twice; one bullet grazed Si's left leg.FN12 Only then, after Si turned to run out the door and yelled that Andy was shooting at him, did Kiet hand him a gun, with which Si then returned fire into the house because he knew Len was "trapped" there. FN13 According to Si, he and Andy exchanged several volleys of gunfire, with Andy firing six or seven shots, and Si shooting about five.FN14 Even after Si heard a scream, Andy continued to shoot at him. After he and the other defendants ran from the Phan house, Cuong Phan chased after them, and Si heard three or four additional shots fired at him.
FN12. Si also testified that Andy, not Cuong Phan, said, "[G]et the fuck out of the house."
FN13. Si denied knowing in advance that Kiet had a gun and denied ever having held a gun before.
FN14. With the exception of the bullet that grazed his leg, Si testified that all of Andy's shots went through the open front door.
At trial, Si also denied that he went to the Phan house on the day of the shooting to beat up Andy in retaliation for his having fought with Len, although he knew that there would be "more trouble" if he walked into the Phan house with Len. He adopted his police interview statement that he had gone to the Phan house that day to collect money from Cuong Phan's cousin, to protect Len, and to "escort" him home. Of Len's dispute with Andy, Si opined that it was disrespectful for Andy to have been fighting with Len and further that it would be disrespectful to Cuong Phan's cousin were he to beat up Andy in the Phan house while the cousin was at home.
Finally, Si denied ever having been a member of MAC and said that Nhat alone among the defendants had been a member. Si admitted, however, that he had lied to police during his interview about who shot Andy.
In support of the theory that Si shot Andy in self-defense, Nhat introduced the testimony of Ben Schiefelbein, a Ph.D. in chemistry, who testified that he found four particles on Andy's right hand containing elements that are unique to gunshot residue and four particles on his left hand that are consistent with, but not unique to, gunshot residue. Under cross-examination by the prosecutor, however, Schiefelbein acknowledged that Andy had not fired a gun because, had he done so, more particles would have been found on his hands. The presence of so few particles on Andy's hand could be explained, in Schiefelbein's opinion, by the fact that several gunshots in a relatively small room could produce a "cloud of gunshot residue," which would "settle on everything," including Andy's hands.
Another forensic scientist, Michelle Fox, did not examine evidence from the scene, but testified on Nhat's behalf that the number of particles found is not generally significant to an analysis of the presence of gunshot residue and that gunshot residue can deposit on someone's hand only if the gun is fired within a few feet of the person.
Anticipating Si's assertion that he had been shot by Andy, the prosecutor introduced the following evidence: None of the boys running from the scene were observed limping; the pants that Si had been wearing had no bullet hole; Si's girlfriend had told police that Si did not report that he had been shot, which he would have done had it happened; and the wound on Si's leg was a mere scratch, similar to one found on Kiet's wrist after his arrest.
Finally, the defense introduced evidence from one neighbor who testified that on the day of the shooting she saw three or four boys running, and one other boy, who appeared to be chasing the others and holding a gun. Thereafter, she heard one or two gunshots, although she saw no one shoot.
The jury convicted defendants of the first degree murder of Andy, for which each defendant subsequently received a sentence of 25 years to life, and of the attempted murder of Sen Dang, for which each defendant received a concurrent sentence of seven years. The jury also found that in committing these offenses, Si and Kiet were personally armed with a firearm (§ 12022, subd. (a)(1)) and that Si both personally used a firearm (§ 12022.5, subd. (a)(1)) and intended to inflict great bodily injury upon Sen Dang (§ 12022.7, subd. (a)).
People v. Tran, 2003 WL 21061575 at *1-*6; Findings and Recommendations, Case No. 2:04-CV-1829 GEB JFM, 11/13/09,at pp. 2-9.
Claim 1: Sufficiency of the Evidence Challenge
In the first claim, petitioner contends that there was insufficient evidence to sustain his first degree murder conviction as an aider and abettor and seeks to incorporate the same argument as to his conviction for attempted murder. AP, pp. 5-10; Traverse, 3-4. The state appellate court addressed this claim as to both the first degree murder conviction of petitioner, inter alia, as well as the challenge to petitioner's*fn5 conviction for attempted murder, as follows*fn6
A. The Murder Convictions of Len and Nhat Are Supported by Substantial Evidence
We turn first to Nhat and Len's contentions over the sufficiency of the evidence of their murder convictions.
"Under California law, a person who aids and abets the commission of a crime is a 'principal' in the crime, and thus shares the guilt of the actual perpetrator. (§ 31.)" (Prettyman, supra, 14 Cal.4th at p. 259, 58 Cal.Rptr.2d 827, 926 P.2d 1013.)
" 'A person aids and abets the commission of a crime when he or she, (I) with knowledge of the unlawful purpose of the perpetrator,
(ii) and with the intent or purpose of committing, facilitating, or encouraging commission of a crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.' "
(People v. Campbell (1994) 25 Cal.App.4th 402, 409, 30 Cal.Rptr.2d 525.) While neither presence at the scene of a crime nor knowledge of, but failure to prevent the crime, is sufficient to establish aiding and abetting ( ibid.), " '[t]he presence of one at the commission of a felony by another is evidence to be considered in determining whether or not he was guilty of aiding and abetting....' " (People v. Moore (1953) 120 Cal.App.2d 303, 306, 260 P.2d 1011.) Further, an unarmed aider and abettor may be responsible in the same degree as the actual perpetrator. (People v. Perkins (1951) 37 Cal.2d 62, 64, 230 P.2d 353.)
In this case, the jury found Si guilty of the first degree murder of Andy. Defendants Len and Nhat were tried solely in their capacity as aiders and abettors. To convict Len and Nhat of first degree murder, the jury had to find that they knew of Si's criminal intent and intended to facilitate Si's intended crime. FN21 (See People v. Mendoza (1998) 18 Cal.4th 1114, 1123, 77 Cal.Rptr.2d 428, 959 P.2d 735.)
FN21. Defendants do not dispute that Si's conviction for Andy's murder is supported by substantial evidence.
Whether Len and Nhat possessed the requisite criminal intent poses a question of fact, to which we apply the usual appellate standard of review: "When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence-i.e., evidence that is credible and of solid value-from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt." (People v. Green (1980) 27 Cal.3d 1, 55, 164 Cal.Rptr. 1, 609 P.2d 468, disapproved on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3, 226 Cal.Rptr. 112, 718 P.2d 99, and People v. Martinez (1999) 20 Cal.4th 225, 239, 83 Cal.Rptr.2d 533, 973 P.2d 512; see also People v. Johnson (1993) 6 Cal.4th 1, 38, 23 Cal.Rptr.2d 593, 859 P.2d 673.) We do not ask whether this court could have been persuaded by the evidence beyond a reasonable doubt, but whether "any rational trier of fact" could have been. ( Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 573]; see People v. Francisco (1994) 22 Cal.App.4th 1180, 1192, 27 Cal.Rptr.2d 695.) This same standard applies to the review of circumstantial evidence. ( People v. Ceja (1993) 4 Cal.4th 1134, 1138, 17 Cal.Rptr.2d 375, 847 P.2d 55.)
Applying these principles to the present case, we conclude that substantial evidence supports the jury's determination that Len and Nhat knew that Si intended to shoot Andy, that they intended to facilitate, aid, or promote the commission of that offense, and that they in fact did so.
First, the manner of Andy's killing is indicative of premeditation and deliberation by all four defendants. According to witnesses both inside and outside the Phan house, mere seconds elapsed between the time the front door opened, and Si shot and killed Andy. The speed and effectiveness with which this was accomplished suggests that it represented the execution of a prearranged plan. (See People v. Hawkins (1995) 10 Cal.4th 920, 957, 42 Cal.Rptr.2d 636, 897 P.2d 574 [the manner of killing may provide sufficient evidence of premeditation and deliberation, even where evidence of planning and motive are minimal], disapproved on a different point in People v. Lasko (2000) 23 Cal.4th 101, 110, 96 Cal.Rptr.2d 441, 999 P.2d 666.)
Second, there was evidence that all of the defendants participated in the planning and promotion of the crime. When defendants' initial attempt to locate Andy was unsuccessful, Si collected Nhat and Kiet the very next morning and went to the Phan house. He did so at a time when the three defendants would expect Len to soon join them and when Andy was also expected to be at or near the Phan house. The lapse of a day between Len's fight with Andy the previous day and the defendants' confrontation with Andy at the Phan house provided an opportunity to plan the attack and to obtain a weapon. Moreover, when Len did join the other three defendants, the four conferred briefly. Given the coordination between all four defendants over a 24-hour period and their conferring just before the attack, it would be highly unlikely that Si only communicated with Kiet about his plans.
Third, Kiet brought with him a gun when defendants went to the Phan house, which he immediately gave to Si, thus demonstrating that he and Si had previously communicated about the need for lethal force. But the jury was also entitled to infer from Nhat's presence with Si and Kiet in the car, and from Len's conference with the other defendants outside the Phan house before the shooting, that Nhat and Len also knew that Kiet had the gun. (See People v. Godinez (1992) 2 Cal.App.4th 492, 500, 3 Cal.Rptr.2d 325.) Indeed, it would be less reasonable to conclude that Nhat and Len had no idea that Si would be armed, despite the fact that the defendants had conferred right before the shooting and Si had started shooting seconds after the front door opened. That is, it would be less reasonable to believe that the four defendants would make plans to retaliate against Andy and go to the Phan house's front door, but that two of the four would not advise the other two what they had planned.
For this reason, Len's argument that "all of the evidence ... surrounding the shooting indicated that the gun appeared without warning right before Si began to shoot" actually undermines his claim that there was no premeditation. The speed with which the shooting was executed, and the coordination necessary to execute the plan so quickly (the handoff of the gun from Kiet to Si), created a reasonable inference that the lethal attack on Andy had been planned.
Fourth, the likelihood that Len and Nhat were aware that Kiet or Si had a gun is bolstered by the fact that Si and Kiet had a large arsenal of weapons. The size of such an arsenal suggests that Len and Nhat had to be aware that the other two defendants possessed weapons. We thus reject Len's contention that "[n]one of the evidence of the events immediately preceding the shooting provided any basis for concluding that Len knew, or reasonably should have known, that one of his companions was armed, much less that Si intended to commit an assault with a firearm or a homicide."
Fifth, Nhat argues that his handling of the murder weapon after the shooting "appears to have been no more than an immediate reaction to an unfolding event, rather than any indication of prior agreement to participate in a killing," but the fact that Si would hand the gun to him suggests that he was part of the plan to kill Andy. Why would Si give the gun to someone not part of the conspiracy? Why not continue to carry the gun himself?
Sixth, Len and Nhat clearly had a motive to assist in the lethal attack on Andy. After all, it was Len's fight with Andy that precipitated the retaliation. Indeed, even Len concedes that "[i]t is reasonable to infer from this evidence that Len intended to engage in another round of combat with Andy." And Nhat had a motive as a fellow gang member to assist Si.
Seventh, all defendants were at the scene of the crime. Although, as noted, their mere presence would not, by itself, warrant a finding that they aided and abetted the shooting ( People v. Campbell, supra, 25 Cal.App.4th at p. 409, 30 Cal.Rptr.2d 525),FN22 it was evidence to be considered in determining whether defendants were guilty of aiding and abetting. ( People v. Moore, supra, 120 Cal.App.2d at p. 306, 260 P.2d 1011.) Moreover, defendants did not just happen upon the crime scene by chance. Rather, their collective presence in this case suggested that they intended to provide organized support for Si's attack on Andy.
FN22. The jury was correctly instructed on this point pursuant to CALJIC No. 3.01.
Eighth, defendants' actions after the shooting demonstrate their consciousness of guilt, in that defendants fled together, hid together, and were picked up together. (See People v. Williams (1997) 55 Cal.App.4th 648, 652, 64 Cal.Rptr.2d 203 ( Williams IV) [generally, evidence that a defendant fled the scene of a crime is admissible evidence of his consciousness of guilt].) FN23 In addition, the trier of fact was entitled to conclude that by removing the murder weapon from the crime scene and initially hiding it, Nhat intended to facilitate the crime by making it more likely that defendants would escape detection.
FN23. The jury was instructed on this point with CALJIC No. 2.52.
Finally, there was the evidence of defendants' affiliation with MAC. The statements to police of Nhat, Si, and Si's girlfriend allowed the conclusion that Andy's shooting was gang-related. MAC, with which Nhat, Si, and Si's friends were affiliated, was unfriendly with those gangs with which Andy and his friends were believed to be affiliated. Even mere acquaintances knew that relations between defendants, on the one hand, and Andy and his friends, on the other, were unfriendly. In addition, the existence of these gang antagonisms and the arsenal of arms maintained by Si and Kiet made it more likely that a retaliation against a member affiliated with an unfriendly gang would be lethal. (Cf. U.S. v. Garcia (9th Cir.1998) 151 F.3d 1243, 1246 [Evidence of gang membership alone may not substitute for evidence of intent to establish liability for aiding and abetting where the facts do not demonstrate a coordinated effort with a specific illegal objective in mind].)
Len argues that "[t]he primary defect in the gang evidence is that it fails to show any previous conduct on the part of the gang or its members that would have alerted a reasonable person in Len's position to the likelihood that they would view Len's dispute with Andy Tran as an occasion calling for the use of lethal force." Len also argues that there was no evidence indicating that Len knew Kiet or was aware of his arsenal of weapons. But it is difficult to believe that Len would choose to contact Si for assistance against Andy but be wholly unaware of his gang affiliation or his possession or access to weapons. It is also difficult to believe that although Len conferred with Si, Kiet, and Nhat before they went to the Phan house, Len had no idea that Kiet would hand Si a gun and that Si would start shooting within seconds after the front door was opened.
In light of the foregoing, we will not second-guess the jury. We conclude that there was substantial evidence from which a reasonable trier of fact could have found Len and Nhat guilty as aiders and abettors of Andy's murder.
B. Defendants' Convictions for the Attempted Murder of Sen Dang Are Based on Substantial Evidence
Defendants contend that the evidence was insufficient to support their convictions for the attempted murder of Sen Dang. Kiet argues that "there was no direct evidence suggesting that the shooter had an intent to kill Sen Dang" and that "the circumstantial evidence proves only that Sen Dang was accidentally hit by a stray bullet fired during the gun battle."
The Attorney General responds that "[g]iven the fact that Si fired at least five shots into the house, it is also inferable that [his] plan was not necessarily confined to killing Andy." Further, he argues that "even assuming that the other [defendants] intended only to kill or shoot Andy, they are still liable for attempted murder as aiders and abettors under the 'natural and probable consequences' doctrine."
"An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (§ 21a; People v. Toledo (2001) 26 Cal.4th 221, 229, 109 Cal.Rptr.2d 315, 26 P.3d 1051; see 1 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Elements, § 53, p. 262.) Accordingly, " ' "[s]pecific intent to kill is a necessary element of attempted murder. It must be proved, and it cannot be inferred merely from the commission of another dangerous crime." [Citation.]' [Citations.]" ( People v. Swain (1996) 12 Cal.4th 593, 605, 49 Cal.Rptr.2d 390, 909 P.2d 994; accord, People v. Bland (2002) 28 Cal.4th 313, 327-328, 121 Cal.Rptr.2d 546, 48 P.3d 1107 ( Bland ).)
Thus, to find Si guilty of attempted murder, the jury had to find that Si intended to kill Sen Dang. With respect to the other defendants, their "culpability for attempted murder as an aider and abettor necessarily depends on the commission of that crime by the perpetrator." ( People v. Patterson (1989) 209 Cal.App.3d 610, 614, 257 Cal.Rptr. 407; see People v. Mendoza, supra, 18 Cal.4th at p. 1123, 77 Cal.Rptr.2d 428, 959 P.2d 735.) As noted earlier, they must " 'act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.' " (Mendoza, at p. 1123, 77 Cal.Rptr.2d 428, 959 P.2d 735.) But "[o]nce the necessary mental state is established, the aider and abettor is guilty not only of the intended, or target, offense, but also of any other crime the direct perpetrator actually commits that is a natural and probable consequence of the target offense." ( Ibid.)
For purposes of our analysis of the sufficiency of the evidence for attempted murder, we will first focus on whether there was evidence upon which a rational trier of fact could conclude that Si intended to kill Sen Dang. The jury was correctly instructed with CALJIC No. 8.66 that express malice is a prerequisite to a verdict of attempted murder.
Nonetheless, the California Supreme Court has recently ruled in Bland, supra, 28 Cal.4th at p. 329, 121 Cal.Rptr.2d 546, 48 P.3d 1107, that although the doctrine of transferred intent does not apply to attempted murder, "the fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within what it termed the 'kill zone.' " There, the defendant-a member of a gang-shot at three persons in a vehicle, killing his target (a rival gang member who was driving) and injuring, but not killing, the two passengers (who were not gang members). The California Supreme Court upheld the attempted murder convictions of the two passengers, which the Court of Appeal had reversed. It found that "a person who shoots at a group of people [can] be punished for the actions towards everyone in the group even if that person primarily targeted only one of them" (28 Cal.4th at p. 329, 121 Cal.Rptr.2d 546, 48 P.3d 1107), that the intent to kill a particular target does not preclude finding a concurrent intent to kill others within the "kill zone" ( ibid.), and that "[t]his concurrent intent theory is not a legal doctrine requiring special jury instructions such as is the doctrine of transferred intent" but rather "is simply a reasonable inference the jury may draw in a given case." (28 Cal.4th at p. 331, fn. 6, 121 Cal.Rptr.2d 546, 48 P.3d 1107.) It added that "a primary intent to kill a specific target does not rule out a concurrent intent to kill others." ( Ibid.) It then found in that case that "the evidence ... virtually compelled a finding that, even if defendant primarily wanted to kill [the gang member], he also, concurrently, intended to kill the others in the car. At the least, he intended to create a kill zone." ( Id. at p. 333, 121 Cal.Rptr.2d 546, 48 P.3d 1107.)
On the basis of Bland, supra, 28 Cal.4th 313, 121 Cal.Rptr.2d 546, 48 P.3d 1107, we conclude that there was sufficient evidence for the jury to conclude that Si possessed the requisite specific intent to kill others within the kill zone necessary to shoot Andy. After all, he fired at least five shots into a crowded room. Analogizing the car with two passengers in Bland with the crowded room of five people here, the jury was entitled to find that Si had a concurrent intent to murder-and shot with knowledge that he would kill-anyone who was near his target when he sprayed the room with five gunshots.
We next turn to the sufficiency of the evidence supporting the convictions of the other defendants as aiders and abettors. "Accomplice liability is 'derivative,' that is, it results from an act by the perpetrator to which the accomplice contributed." (Prettyman, supra, 14 Cal.4th at p. 259, 58 Cal.Rptr.2d 827, 926 P.2d 1013.) "When the offense charged is a specific intent crime, the accomplice must 'share the specific intent of the perpetrator'; this occurs when the accomplice 'knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime.' [Citation.]" ( Ibid.)
Admittedly, there was no direct evidence that the other defendants knew that Si would spray the room with bullets in order to kill Andy, thereby creating a "kill zone." But there was sufficient evidence under the natural and probable consequences doctrine. The natural and probable consequences doctrine is "based on the recognition that 'aiders and abettors should be responsible for the criminal harms they have naturally, probably and foreseeably put in motion.' [Citation.]" ( Prettyman, supra, 14 Cal.4th at p. 260, 58 Cal.Rptr.2d 827, 926 P.2d 1013.) The test of natural and probable consequences is an objective one and " ' "depends upon whether, under all of the circumstances presented, a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant." [Citation.]' [Citations.]" ( People v. Culuko (2000) 78 Cal.App.4th 307, 327, 92 Cal.Rptr.2d 789.)
A reasonable person would have foreseen that the reasonably foreseeable consequence of shooting into a crowded room to murder one person would be to murder any innocent bystander within the "kill zone." ( Bland, supra, 28 Cal.4th at p. 329, 121 Cal.Rptr.2d 546, 48 P.3d 1107.) And clearly, the jury could reasonably infer that defendants were aware that there were a number of people at the Phan house, including Andy, who could be hit in the line of fire. Further, in light of the evidence that the attack on Andy was an aspect of gang warfare, "[t]he frequency with which ... gang attacks result in homicide" supported the foreseeability that an attempt to murder one person in an occupied home would result in the murder (or if they survived, the attempted murder) of others. (See People v. Montano (1979) 96 Cal.App.3d 221, 227, 158 Cal.Rptr. 47 [Defendant's conviction for attempted murder depended upon the determination that a co-defendant's assault with intent to commit murder was a natural and probable consequence of an attack on rival gang member].) In short, if Si was properly convicted of the attempted murder of those within the kill zone pursuant to Bland, supra, 28 Cal.4th 313, 121 Cal.Rptr.2d 546, 48 P.3d 1107, so, too, were his aiders and abettors since such a kill zone was the natural and probable consequence of the premeditated murder of Andy in a crowded room. This is but a ...