Filed 4/7/23

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

BOUNTHANOM DIDYAVONG,

Defendant and Appellant.

 D079712

 (Super. Ct. No. SCD142894)

APPEAL from an order of the Superior Court of San Diego County, 

John M. Thompson, Judge. Affirmed.

Kimberly J. Grove and Pauline E. Villanueva, under appointment by

the Court of Appeal, for Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, Lynne G. 

McGinnis, Melissa Mandel, Robin Urbanski, Alan Amann, and Minh U. Le, 

Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

In February 2001, a jury convicted Bounthanom Didyavong of first

degree murder for his role in the 1998 gang-related beating and shooting 

death of David D. In May 2019, following California’s adoption of Senate Bill 

No. 1437 (2017-2018 Reg. Sess.), Didyavong petitioned the superior court for 
2

resentencing, alleging he was not the actual killer or a major participant who 

acted with a reckless disregard to human life, and he did not act with intent 

to kill. (See Pen. Code,1 § 1172.6.2) The superior court denied the petition at 

the prima facie stage. We reversed the denial and directed the superior court 

to issue an order to show cause. (People v. Didyavong (Apr. 14, 2021, 

D077933) [nonpub. opn].) On remand and following a hearing that complied 

with section 1172.6, the superior court concluded that the People proved 

beyond a reasonable doubt that Didyavong committed second degree implied 

malice murder. It denied the petition for resentencing. Didyavong appealed 

that determination, contending there was not substantial evidence to support 

the court’s conclusion.

We requested supplemental briefing as to whether a trial court could 

reduce a first degree murder conviction to second degree murder in the 

context of a section 1172.6 evidentiary hearing. In his supplemental brief, 

Didyavong argued that the trial judge should have reduced the count and 

resentenced him because it determined the evidence was sufficient to find 

him guilty of second degree murder on that basis. The Attorney General 

argued that section 1172.6 does not provide a mechanism for reducing a first

degree murder conviction to second degree murder; thus, the proper approach 

was for the court to deny the petition, as it did. 

We agree with the Attorney General that section 1172.6 does not 

provide a mechanism to reduce a first degree murder conviction to second

1 Undesignated section references are to the Penal Code.

2 Effective June 30, 2022, the Legislature renumbered section 1170.95 to 

section 1172.6 with no change in text. (Stats. 2022, ch. 50, § 10.) We refer to 

the statute by its current number only.
3

degree murder. We further conclude there was substantial evidence to 

support the court’s denial of Didyavong’s petition. Thus, we affirm. 

BACKGROUND FACTS

We recite the facts as they appear in our unpublished decision on 

Didyavong’s direct appeal (People v. Didyavong (July 30, 2002, D037601)): 

“On the evening of September 12, 1998, Ryan L[.] had a party at his 

residence on Bell Bluff Avenue in San Diego. Roughly 25 to 30 teenagers 

were at the party. About 11:30 p.m., a number of the teenagers were outside 

when Osa Inthavong passed them in his white Honda Civic hatchback. 

Jordan W[.], who had been drinking, was angered because he perceived that 

the Honda swerved toward the group and he kicked the front passenger side 

fender of the car as it passed. Mistakenly thinking he knew the driver, 

[Jordan] ran after the car, which stopped briefly and then drove off.

“About an hour later, Inthavong drove the Honda back to Bell Bluff 

Avenue, followed by several other vehicles, and stopped in the middle of the 

street. Fifteen to twenty Asian men got out of the cars and a tall one, 

wearing a white shirt and baggy blue pants and sporting a distinctive 

hairstyle, took a small baseball bat[3] out of the trunk of the Honda. Six or 

seven of the Asian[ ] [men] surrounded partygoer David [D.], who was across 

the street smoking a cigarette, and attacked him. The rest of the Asian [men]

formed a shield around the attackers, who were holding [David] down on the 

ground; one of the attackers used a miniature baseball bat, and another used 

a lead pipe, to beat [David].

3 The size of the baseball bat was disputed during the hearing on the 

petition for resentencing. Didyavong’s attorney argued it was a “miniature 

wooden little league bat.” The People replied that the bat was roughly 12 

inches long. 
4

“When the other teenagers started coming outside to see what was 

happening, one of the Asian[ ] [men] challenged them, asking if anyone else 

‘wanted any of what they had.’ No one responded. As the attackers held 

[David] down, one of the Asian[ ] [men] at the center of the group fired five or 

six gunshots, causing the partygoers to scatter or seek cover. The assailant 

with the bat hit [David], who was lying in the street, in the head one last 

time as the rest of the Asian[ ] [men] ran back to their cars. The attacker 

rejoined the rest of his group, which then drove away.

“[David] was unconscious and did not respond to efforts by the 

partygoers, or subsequent attempts by paramedics, to revive him. He was 

transported to a hospital, where he was pronounced dead at 1:27 a.m. An 

autopsy showed that he died from two gunshot wounds to the chest that 

damaged his heart, lungs and liver. He also suffered a third gunshot wound, 

a skull fracture and six puncture wounds consistent with having been 

stabbed with a Phillips-head screwdriver. Police investigating the scene 

found a metal pipe in the grass, a baseball bat hidden in the bushes and five 

shell casings on the ground.

“Shortly thereafter, the police arrested Sonxai Rasakhamdee, 

Phonemala Phomthavong and Didyavong, who were affiliated with an Asian 

gang called the OKB, in connection with the incident. Officers interviewed 

Rasakhamdee and Phomthavong, who admitted their participation in the 

attack and also indicated that Didyavong had been involved. (The evidence 

of these interviews was not introduced at Didyavong’s trial.) Thereafter, the 

police put Didyavong and Rasakhamdee together in a holding cell at the 

police station. The men had a conversation, surreptitiously recorded by 

police, in which Didyavong urged Rasakhamdee to recant Rasakhamdee’s 

prior statements to the police implicating him in the incident.
5

“Several days after the incident, a friend of [David]’s who witnessed the 

attack gave a description of the bat-wielding assailant to the police. The 

witness subsequently chose Didyavong’s photo, taken at the time of arrest, 

from an 18-item photographic lineup and identified Didyavong based on his 

clothing, physical build and hairstyle as the person who used the bat. The 

witness also chose a photograph of OKB member Phitikhoun Phanbandith, 

who he identified as one of the people that he saw get out of the Honda.

“In June 1999, the District Attorney charged Didyavong with murder. 

(Prosecutors also charged Phanbandith, Inthavong, Rasakhamdee, 

Phomthavong and several others with murder in connection with the attack.) 

Phomthavong reached an agreement with prosecutors to plead guilty to 

voluntary manslaughter arising out of [David]’s death and to testify 

truthfully in the criminal trials against the other defendants, in exchange for 

a maximum sentence of 11 years in prison. Although he had repeatedly lied 

to police, investigators and his own attorney about the incident, he decided to 

provide truthful testimony because he felt badly about what had happened.

“At Didyavong’s trial, Phomthavong testified that on the evening of the 

attack, he was ‘hanging out’ by a canyon with several other members and 

affiliates of the OKB or a closely allied gang known as the Oriental Mobster 

Crips (‘OMC’). Inthavong, who was driving his Honda Civic, stopped to tell 

the group that a white guy had kicked his car and said[,] ‘[L]et’s go get him.’

Most of the group got into five cars and followed Inthavong to Bell Bluff 

Avenue. Phomthavong drove Didyavong and Didyavong’s cousin in his car.

Phomthavong testified that he believed that the group was going to Bell Bluff 

Avenue only for a fistfight; however, he admitted that he had a gun in the 

glove compartment of his car for safety reasons. He testified that 
6

Rasakhamdee and Phanbandith were the only other members of the group 

who knew about the gun.

“When the group arrived at Bell Bluff Avenue, Inthavong got out of his 

car and hit [David]. Shortly thereafter Phanbandith, Didyavong and two or 

three others joined in the attack, kicking and beating [David], while the 

others stood around. Phanbandith separated from the attackers and asked 

Phomthavong where the gun was; Phomthavong responded, “You know 

where it is.” Phanbandith retrieved the gun from Phomthavong’s car, 

approached the group of attackers as they were beating [David], shot [David] 

three times and then fired several more shots at the other partygoers. The 

group ran back to the cars and left.

“San Diego Police Department Gang Detective Michael Gallivan 

testified for the prosecution as an expert on Asian gangs, as follows: Based 

on Didyavong’s attire on the night of the attack (which was consistent with 

OKB gang colors) and his past affiliations, it appeared that he was an OKB 

member. Respect is very important to the OKB and the OMC. If a person 

showed disrespect to a member of these gangs, the gang would feel compelled 

to retaliate in some fashion, often a violent confrontation, because a failure to 

respond would be seen as a sign of weakness. If a person kicked an OKB 

gang member’s car, this would be a sign of disrespect, or a challenge, that 

would require a response. The people who went along with the gang member 

would be expected to participate in the response in some manner, either 

through direct involvement or support through their presence at the scene. A 

beating of the type involved here, including the use of weapons, was a typical 

gang response to the perceived disrespect that had been shown, although an 

attack resulting in a death would be a ‘severe’ response and one that ‘doesn’t 

happen every day.’
7

“In his defense, Didyavong called retired professor emeritus Malcolm 

Klein, who testified that Asian gang members are most commonly involved in 

minor offenses (such as theft, vandalism and drugs), rather than more 

serious offenses (such as robbery, auto theft, rape or murder). Dr. Klein also 

testified that a shooting would not be an expected response to someone 

having kicked a gang member’s car and that it would be inappropriate to 

expect that an assault would result in a homicide. Didyavong’s father 

testified that he did not recognize the shirt his son was wearing at the time of 

his son’s arrest.

“A jury convicted Didyavong of first degree murder and, after he made 

various unsuccessful posttrial motions, the court sentenced him to 25 years to 

life.”

PROCEDURAL HISTORY

In May 2019, Didyavong filed a petition for resentencing under 

section 1172.6. The court appointed counsel and received briefing. After 

considering the record of conviction and this court’s previous opinion, the 

superior court concluded Didyavong failed to state a prima facie case for relief 

and denied his petition.

Didyavong appealed, contending the court engaged in impermissible 

judicial factfinding. The Attorney General agreed, and we accepted the 

People’s concession. In April 2021, we reversed the superior court’s order, 

remanding the matter with directions to issue an order to show cause and to 

conduct further proceedings as required by statute. 

On remand, the superior court conducted an evidentiary hearing. (See 

§ 1172.6, subd. (d).) The People introduced three theories of liability: aiding 

and abetting in first degree murder, second degree murder via direct action 
8

with implied malice, and aiding and abetting in second degree murder 

committed by a fellow gang member. 

The court considered the trial record and transcript, the appellate 

opinion in case No. D037601, and counsels’ arguments. Its order also quoted 

from the opinion in case No. D077933: “Dr. Klein acknowledged that he had 

no specific information on Asian gangs in San Diego, had never spoken to an 

Asian gang member from San Diego, had never done research on Asian gang 

members in San Diego, and was not familiar with a number of other 

shootings that had occurred in San Diego between Asian gangs.” 

The superior court denied the petition, concluding the People proved 

beyond a reasonable doubt that Didyavong was guilty of murder as an aider 

and abettor under an implied malice theory. The court did not explicitly 

reach a conclusion regarding first degree murder. 

Didyavong timely appealed.

We invited the parties to provide supplemental briefs on the issue of 

whether the superior court has the authority, under section 1172.6, to reduce 

a first degree murder sentence to second degree and resentence the defendant 

for the lesser offense. 

DISCUSSION

A. Legal Principles

1. Senate Bill No. 1437 and Senate Bill No. 775

Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) was 

enacted to “ ‘amend the felony murder rule and the natural and probable 

consequences doctrine, as it relates to murder, to ensure that murder liability 

is not imposed on a person who is not the actual killer, did not act with intent 

to kill, or was not a major participant in the underlying felony who acted with 

reckless indifference to human life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).)” 
9

(People v. Martinez (2019) 31 Cal.App.5th 719, 723.) Senate Bill 1437 did this 

by amending section 188, which defines malice, and section 189, which 

defines the degrees of murder. (Stats. 2018, ch. 1015, §§ 2 & 3.) Amended 

section 188 states: “Except as stated in subdivision (e) of Section 189, in 

order to be convicted of murder, a principal in a crime shall act with malice 

aforethought. Malice shall not be imputed to a person based solely on his or 

her participation in a crime.” (§ 188, subd. (a)(3).) Amended section 189 

states: “A participant in the perpetration or attempted perpetration of a 

felony listed in subdivision (a) in which a death occurs is liable for murder 

only if one of the following is proven: [¶] (1) The person was the actual killer. 

[¶] (2) The person was not the actual killer, but, with the intent to kill, aided, 

abetted, counseled, commanded, induced, solicited, requested, or assisted the 

actual killer in the commission of murder in the first degree. [¶] [or] (3) The 

person was a major participant in the underlying felony and acted with 

reckless indifference to human life, as described in subdivision (d) of 

Section 190.2.” (§ 189, subd. (e).)

Senate Bill 1437 also established resentencing relief for eligible 

defendants. (§ 1172.6, subd. (a); People v. Strong (2022) 13 Cal.5th 698, 707-

708.) Under section 1172.6, subdivision (a), “[a] person convicted of felony 

murder or murder under a natural and probable consequences theory may 

file a petition” with the sentencing court to have his or her murder conviction 

vacated and to be resentenced on any remaining counts “when all of the 

following conditions apply: [¶] (1) A complaint, information, or indictment 

was filed against the petitioner that allowed the prosecution to proceed under

a theory of felony murder or murder under the natural and probable 

consequences doctrine. [¶] (2) The petitioner was convicted of first degree or 

second degree murder following a trial or accepted a plea offer in lieu of a 
10

trial at which the petitioner could be convicted for first degree or second 

degree murder. [¶] (3) The petitioner could not be convicted of first or second 

degree murder because of changes to Section 188 or 189 made effective 

January 1, 2019” under Senate Bill 1437. After receiving a petition 

containing the required information, “the court must evaluate the petition ‘to 

determine whether the petitioner has made a prima facie case for relief.’ ” 

(Strong, at p. 708, citing § 1172.6, subd. (c).) If the defendant makes a prima 

facie showing of entitlement to relief, the court must issue an order to show 

cause and hold an evidentiary hearing. (§ 1172.6, subds. (c), (d)(3).) 

Effective January 1, 2022, Senate Bill No. 775 (2020-2021 Reg. Sess.) 

(Senate Bill 775) amended section 1172.6 to clarify certain aspects of the law, 

including that (1) the burden of proof at a resentencing hearing under this 

section is “on the prosecution to prove, beyond a reasonable doubt, that the 

petitioner is guilty of murder” under California law as amended by Senate 

Bill 1437 and (2) “[a] finding that there is substantial evidence to support a 

conviction for murder . . . is insufficient to prove, beyond a reasonable doubt, 

that the petitioner is ineligible for resentencing.” (§ 1172.6, subd. (d)(3); see 

also Stats. 2021, ch. 551, § 1, subd. (c).) Senate Bill 775 clarified that the 

trial court’s role in a section 1172.6 proceeding is to act as an independent 

fact finder and determine, in the first instance, whether the petitioner 

committed murder under the law as amended by Senate Bill 1437. (People v. 

Clements (2022) 75 Cal.App.5th 276, 294, 297 (Clements).)

2. Implied Malice Aiding and Abetting Murder

Although Senate Bill 1437 amended the felony murder rule to ensure 

that murder liability would be imposed only on perpetrators with malice 

aforethought, it did not change the definition of malice. (People v. Gentile

(2020) 10 Cal.5th 830, 844.) Express malice exists “when there is a manifest 
11

intent to kill.” (Ibid., citing § 188, subds. (a)(1) and (2).) It is shown when the 

defendant either desires the victim’s death or knows to a substantial 

certainty that death will occur. (§ 188, subd. (a)(1); People v. Saille (1991) 54 

Cal.3d 1103, 1114.) Implied malice exists if “someone kills with ‘no 

considerable provocation . . . or when the circumstances attending the killing 

show an abandoned and malignant heart.’ ” (Gentile, at p. 844, citing § 188, 

subd. (a)(2).) “ ‘In short, implied malice requires a defendant’s awareness of 

engaging in conduct that endangers the life of another . . . .’ ” (People v. 

Cravens (2012) 53 Cal.4th 500, 507 (Cravens).)

Aider and abettor liability is “ ‘based on a combination of the direct 

perpetrator’s acts and the aider and abettor’s own acts and own mental 

state.’ ” (People v. Powell (2021) 63 Cal.App.5th 689, 710 (Powell), quoting 

People v. McCoy (2001) 25 Cal.4th 1111, 1117.) In other words, “ ‘[a]n 

aider and abettor must do something and have a certain mental state.’ ” 

(Powell, at p. 712.) “For the direct aider and abettor, the [act] includes 

whatever acts constitute aiding the commission of the life endangering act. 

Thus, to be liable for an implied malice murder, the direct aider and 

abettor must, by words or conduct, aid the commission of the lifeendangering act, not the result of that act.” (Id. at p. 713.) Further, “the 

aider and abettor of implied malice murder need not intend the 

commission of the crime of murder. Rather . . . he or she need only intend 

the commission of the perpetrator’s act, the natural and probable 

consequences of which are dangerous to human life, intentionally aid in 

the commission of that act and do so with conscious disregard for human 

life.” (Id. at p. 714.) 
12

B. Discretion to Reduce a Murder Conviction

We review the interpretation of a statute de novo. (People v. Lewis 

(2021) 11 Cal.5th 952, 961.) We “ ‘ “ ‘ “begin by examining the statute’s 

words, giving them a plain and commonsense meaning.” ’ ” ’ ” (Ibid.) If the 

plain language is clear and unambiguous, we end our inquiry. (People v. 

Johnson (2002) 28 Cal.4th 240, 244.) If the statute’s language is 

unambiguous, we presume the Legislature meant what it said, and the plain 

meaning of the statute governs. (Ibid.)

The prosecution meets its burden under section 1172.6 if it proves 

beyond a reasonable doubt that the defendant “is guilty of murder . . . under 

California law as amended by the changes to Section 188 or 189 made 

effective January 1, 2019.” (§ 1172.6, subd. (d)(3).) In that instance, the 

defendant is not entitled to relief, and the court denies the petition for 

resentencing. (Ibid.) “If the prosecution fails to sustain its burden of proof, 

the prior conviction, and any allegations and enhancements attached to the 

conviction, shall be vacated and the petitioner shall be resentenced on the 

remaining charges.” (Ibid.) In that instance, the conviction “shall be 

redesignated as the target offense or underlying felony for resentencing 

purposes” if “murder or attempted murder was charged generically . . . .” (Id.

at subd. (e).) 

The statute does not detail eligible degrees of murder. For relief it 

simply requires the defendant to have been convicted of “murder, attempted 

murder, or manslaughter” in a situation in which the petitioner “could not 

presently be convicted of murder or attempted murder” because of changes to 

sections 188 or 189. (§ 1172.6, subd. (a)(2), (3).) Like our colleagues in 

People v. Gonzalez (2023) 87 Cal.App.5th 869, at page 881, we conclude this 

language is reasonably clear. It treats all murder as a single, generic crime 
13

and requires resentencing when a defendant could not now be convicted of 

murder, generically.4 The statute authorizes the court to take one of two 

actions: deny the petition for relief or grant the petition for relief. (Gonzalez, 

at p. 881.) In granting the petition, the court vacates the murder conviction 

and redesignates it as the target offense or the underlying felony. In 

directing the court to redesignate the murder conviction to the target offense 

or the underlying felony, the statute provides no mechanism for the court to 

reduce a first degree murder conviction to second degree. 

It seems significant that if the defendant did not commit murder under 

the amended sections 188 or 189, section 1172.6 does not allow the People to 

retry the defendant on a lesser homicide offense even if the evidence would 

support it. Thus, the statute would appear to achieve rough justice rather 

than perfect justice under the revised law. But if the Legislature intended to 

ensure that no defendant remains convicted of a crime greater than what he 

or she would be guilty of under the revised statutes, it is free to amend 

section 1172.6 to say so.

Here, the defendant was charged generically with murder in count 1 

and convicted of that crime. To deny the defendant relief, the statute 

required the prosecutor to prove beyond a reasonable doubt that the 

4 A “generic murder” is a murder charge that does not specify a degree. 

(People v. Jones (2014) 230 Cal.App.4th 373, 377.) A murder charged 

generically does not limit the prosecution to any particular theories of 

liability. (People v. Flores (2022) 76 Cal.App.5th 974, 987; People v. Eynon

(2021) 68 Cal.App.5th 967, 977-978.) 
14

defendant was still guilty of murder, and the prosecutor successfully did so. 

Thus, the defendant was not entitled to have his murder conviction vacated.5

C. Section 1172.6 Analysis

We review the trial court’s factfinding on the question of whether a 

defendant committed a murder under a still-valid theory for substantial 

evidence. (Clements, supra, 75 Cal.App.5th at p. 298.) We analyze the record 

in the light most favorable to the trial court’s finding and determine if there 

is sufficient substantial evidence to find the defendant guilty beyond a 

reasonable doubt. (People v. Becerrada (2017) 2 Cal.5th 1009, 1028; People v. 

Bascomb (2020) 55 Cal.App.5th 1077, 1087.) “Our job on review is different 

from the trial judge’s job in deciding the petition. While the trial judge must 

review all the relevant evidence, evaluate and resolve contradictions, and 

make determinations as to credibility, all under the reasonable doubt 

standard, our job is to determine whether there is any substantial evidence, 

contradicted or uncontradicted, to support a rational fact finder’s findings 

beyond a reasonable doubt.” (Clements, at p. 298.) We will not reverse 

unless there is no hypothesis upon which sufficient substantial evidence 

exists to support the trial court’s decision. (People v. Bolin (1998) 18 Cal.4th 

297, 331.) We must “presume in support of the judgment the existence of 

every fact the trier could reasonably deduce from the evidence.” (People v. 

Jones (1990) 51 Cal.3d 294, 314.) “The same standard applies when the 

conviction rests primarily on circumstantial evidence.” (People v. Kraft 

(2000) 23 Cal.4th 978, 1053.) “An appellate court must accept logical 

5 We note that the court did not reach a conclusion regarding whether 

the prosecution proved Didyavong was guilty of first degree murder. It 

explained a finding of any degree of murder would be sufficient, and it 

discussed only its findings regarding second degree murder. 
15

inferences that the [trier of fact] might have drawn from the circumstantial 

evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.)

At issue is whether Didyavong acted in a way that demonstrated an 

awareness that he was “ ‘engaging in conduct that endangers the life of 

another’ ” (Cravens, supra, 53 Cal.4th at p. 507), and whether he acted “with 

conscious disregard for human life” (Powell, supra, 63 Cal.App.5th at p. 714). 

The People’s gang expert testified that respect was important to the 

gang Didyavong associated with, and failure to respond to disrespectful 

conduct would have been a sign of weakness. Those who accompanied the 

gang member in an act of retaliation were expected to participate in the 

activity. Thus, Didyavong’s presence at the scene suggests he was there to 

participate in David’s beating. Although there was testimony that an attack 

resulting in death would be a “severe” response that “doesn’t happen every 

day,” there was also testimony that the firing of a gun and the use of other 

weapons in a beating would not be an unusual response from this gang

because they are extremely violent and “go to win.” As the court explained, 

based on the history of this gang and Didyavong’s participation in the assault 

with a baseball bat, he would know weapons could be involved in a 

confrontation like this one. 

Didyavong identifies Phanbandith’s shooting David as the lifeendangering act and emphasizes that he did not know a gun was present 

before the shots were fired and so could not have been aware of or shared 

Phanbandith’s intent. Specifically, he argues there was no evidence that 

David suffered three shots “point blank,” that anyone was positioned between 

Phanbandith and David immediately before or during the shooting, or that 

there was any time lag between the gun’s appearance and the shooting. 
16

However, there was evidence in the record to support such inferences. 

For example, Phomthavong testified that the shooter was “right on top of 

David,” suggesting that the shots were fired “point blank.” Moreover, David 

was lying on the ground when he was shot, and others, including Didyavong,

were kicking and beating him. This indicates that there was some passage of 

time from when Phanbandith retrieved the weapon and the time he began 

shooting because the other attackers had to move out of the way to make 

space for Phanbandith to use the gun “right on top of David.” Thus, even if 

he were not initially aware of Phanbandith’s intent, he became aware of it.

Further, Didyavong’s argument presumes a lack of knowledge that a 

gun could be used, a conclusion contradicted by the history and culture of this 

gang’s retaliatory conduct according to Detective Gallivan. It also presumes 

that an attack could only be deadly with the use of a gun, which is simply 

false. 

Insofar as Didyavong means to suggest that his conduct does not show 

he harbored the requisite intent because the life-endangering act was the 

shooting and not the physical damage imposed by his use of a bat, we 

disagree. Although the cause of death was gunshot wounds, Didyavong aided 

the commission of the life-endangering act of the violent, life-threatening 

retaliation. David was kicked, beaten with a bat and a lead pipe, and stabbed 

multiple times with a screwdriver. Didyavong actively participated by 

beating David with a bat while David was held down. Even if Didyavong did 

not plan for murder to occur, his participation in the violent attack and his 

use of a weapon to beat David demonstrates his participation in the 

commission of a crime for which the natural consequences are dangerous to 

human life. Moreover, Didyavong’s use of a bat to smack David’s skull after 

David had been shot, even as the other gang members ran back to their cars,
17

demonstrates an awareness that he was endangering David’s life. (See 

Cravens, supra, 53 Cal.4th at p. 507; see also Powell, supra, 63 Cal.App.5th 

at pp. 713.) Thus, substantial evidence supports the superior court’s 

conclusion that Didyavong’s acts and mental state reflect that he was an 

aider and abettor whose conduct demonstrated an abandoned and 

malignant heart. 

DISPOSITION

The order is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

DATO, J.

DO, J.