California Court of Appeals, Fourth District, Third Division
from a judgment of the Superior Court of Orange County No.
11WF0963, James A. Stotler, Judge. Affirmed with directions.
D. Sheehy, under appointment by the Court of Appeal, for
Defendant and Appellant.
D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Peter Quon, Jr., and Randall D. Einhorn,
Deputy Attorneys General, for Plaintiff and Respondent.
Tom Phung was 17 years old when he and fellow Tiny Rascal
Gang (TRG) members, riding in about five cars, chased a
fleeing vehicle containing eight rival gang members. A TRG
member shot and killed one rival and seriously wounded a
second. A jury convicted defendant of the lesser included
crime of second degree murder (Pen. Code, § 187, subd.
(a); count 1), attempted murder (§§ 664,
subd. (a), 187, subd. (a); count 2), shooting at an occupied
motor vehicle (§ 246; count 3), and street terrorism
(§ 186.22, subd. (a); count 4). With respect to the
first three crimes, the jury found true the allegations that
defendant committed them for the benefit of a criminal street
gang (§ 186.22, subd. (b)(1)), and vicariously
discharged a firearm causing great bodily injury and death
(§ 12022.53, subds. (d), (e)(1)).
trial court sentenced defendant to an aggregate prison
sentence of 40 years to life, consisting of a 15-year-to-life
term for second degree murder and a consecutive
25-year-to-life term for vicariously using a firearm in that
crime; concurrently with count 1, a five-year term for
attempted murder and a 25-year-to-life enhancement for
vicariously using a firearm in that crime; and, also
concurrently with count 1, a three-year term for shooting at
an occupied vehicle and a 25-year-to-life enhancement for
vicariously using a firearm in that crime. The court
dismissed for sentencing purposes the gang enhancement to
counts 1, 2, and 3. It imposed and stayed execution of
sentence on the street terrorism conviction pursuant to
appeal defendant contends he was a passive aider and abettor
and consequently his 40-year-to-life sentence constitutes
cruel and unusual punishment in violation of the Eighth
Amendment. He also argues his concurrent sentence on count 3
should be stayed pursuant to section 654. Finally, he
requests this court to correct a clerical error in his
abstract of judgment, which describes his count 3 conviction
as shooting at an “inhabited dwelling” rather
than an “occupied motor vehicle.”
agree the abstract of judgment must be corrected as to count
3. In all other respects, we affirm the judgment.
March 20, 2011, about 20 people were partying at Andrew
Tran's home, including defendant (a TRG member) and Leesa
Huynh. The people talked about “getting back at”
rival gang Power of Vietnamese (POV) because POV had thrown a
brick through a window of a TRG member's house, injuring
the member's “little sister.”
11:00 p.m., Huynh left the party in a car driven by Tran.
There were three other passengers in Tran's car -
Benjamin Nguyen, Jonathan Tieu, and Skyler Avila. Nguyen gave
Tran a gun, which Tran hid in the dashboard behind the
car's radio. Nguyen was a Hellside gang member. Tieu was
a TRG member. Tran and Avila had ties to both the TRG and
group stopped at a restaurant, where they were joined by
three or four other cars of people from the party, including
Hellside gang members. From there, they drove to the parking
lot of a pool hall where POV members were known to hang out
at times. Tran's car arrived at the pool hall first.
Eventually, there might have been a total of six or seven
Tieu, and Nguyen got out of the car and shouted at people in
the pool hall, yelling, “Tiny Rascal Gang, ”
“T.R.G., what's up?”, and “Fuck
VT.” Huynh thought the men were shouting at people in
TRG's rival gangs, i.e., POV, Asian Family (AF), and
Viets Together (VT).
and the others got back into the car. Nguyen sat in the front
passenger seat. Tran repositioned his car in the parking lot.
His car and several other vehicles formed a
“barricade” that served as a “check
point” for other vehicles trying to exit the parking
drove by the barricade. Someone in Tran's car said,
“That's not them.” Then an SUV drove by. Tran
said, “That's them, ” and drove after the SUV
onto Westminster Boulevard. Together with Tran's car, at
least two other cars chased the SUV. When the SUV was in the
middle lane, Tran's car switched to the left lane and was
a little bit behind the SUV. Nguyen told Tran to accelerate.
car pulled up to the driver's side of the SUV. Nguyen
shouted at the people in the SUV through the car's open
window, asking what gang they were from. Nguyen had the gun
Huynh had seen earlier. Inside the SUV, Scottie Bui (a POV
gang member) said, “It's Puffy [Tran] and C.J.
heard five gunshots emanate from the passenger side of
SUV's driver told everyone to duck down. Two guys were
“hit, ” including Bui. The SUV's occupants
drove an unresponsive Bui to the hospital, carried him
“over there, ” and left. Bui died from a gunshot
wound to the head. Another male suffered great bodily injury
from a shot to his neck.
the shooting, the Tran group drove to a house in the
“neighborhood, ” and then to get doughnuts, along
with some other people who had been with them at the party
and the pool hall.
trial, a TRG member (who pleaded guilty to attempted murder
and street terrorism based on the above underlying crimes)
testified that TRG members are expected to “back
up” each other in fights and that a member would be
“checked, ” i.e., beaten up, if he failed to be a
back up. He identified defendant in court as a fellow TRG
member and testified that defendant's brother Tien Phung
was the leader of TRG at the time of the shooting.
three months later, on June 16, 2011, a police officer
interviewed defendant. A video recording of the interview was
played for the jury and a transcript was distributed. In the
interview, defendant gave the officer the following account
of his relationship with TRG and the events of the night of
March 20, 2011 and the early morning hours of March 21, 2011.
was 17 years old and had been on probation since he was 13 or
14 years old. Defendant did not associate with TRG; he had
“stopped hanging out with them since [his] last
incident.... [He] helped the other detective, [he] went to
school, [he] got [his] laser [tattoo] removed....” He
had already had 14 painful laser treatments to remove a TRG
tattoo from his back.
was at the party the night of the shooting, but left to go to
his then girlfriend's house because her mother was away
from the home. He paid Cynthia to drive him to the
girlfriend's house. He was there until 1:00 or 2:00
a.m. Defendant phoned his brother to come pick him up, but
his brother came and did not see him. Defendant talked on the
phone to a TRG member who told him there were “VT's
at the ...