Filed 5/8/14 P. v. Phung CA4/3 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FOURTH APPELLATE DISTRICT 

DIVISION THREE 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

TIEN PHUOC PHUNG, 

 Defendant and Appellant. 

 G048108 

 (Super. Ct. No. 11WF0963) 

 O P I N I O N 

 Appeal from a judgment of the Superior Court of Orange County, James A. 

Stotler, Judge. Affirmed as modified. 

 Athena Shudde, 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, Lynne G. McGinnis and 

Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent. 

* * * 
2

A confrontation between rival gang members outside a pool hall led to a 

brief car chase, which culminated when a passenger in a pursuing vehicle fired a gun out 

of the window at the fleeing vehicle. The gunshots resulted in the death of one victim 

and the serious injury of another. A jury convicted defendant Tien Phuoc Phung (who 

was not the shooter, or even in the vehicle from which the bullets issued) of all four 

counts with which he was charged: (1) first degree murder (Pen. Code, §§ 187, subd. (a), 

189);

1

 (2) attempted murder (§§ 187, subd. (a), 664); (3) shooting at an occupied motor 

vehicle (§ 246); and (4) street terrorism (§ 186.22, subd. (a)). As to each of the first three 

counts, the jury found it to be true that defendant committed the offense for the benefit of, 

at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)) 

and that defendant vicariously discharged a firearm causing great bodily injury and death 

(§ 12022.53, subds. (d), (e)(1)). The court sentenced defendant to 50 years to life in state 

prison. Other than modifying the judgment to remedy an inconsequential error (the court 

should not have imposed § 186.22, subd. (b)(1)(C), enhancements that it ultimately 

stayed), we affirm. 

FACTS 

Background 

Detective Peter Vi testified as an expert witness on the subject of criminal 

street gangs. Vi had been assigned to the gang unit of his department for 18 years. Vi 

talked about gangs generally, indicating “[t]hey use violence, intimidation to 

gain . . . respect.” Firearms “elevate the status” of the individual employing them 

because it gives the individual more power. A “hit-up” occurs when a gang member asks 

another individual a question (such as “where are you from, what gang you claim, do you 

 

1

 All statutory references are to the Penal Code. 
3

bang”), which oftentimes serves as an invitation or prelude to a violent confrontation. 

Gang members “claim” their membership in the gang during confrontations because of 

pride in their gang and to inform the victims of who is behind the attack. If a gang 

member or gang has been disrespected by a rival, retaliation of equal or greater measure 

must occur to regain the lost respect. Gang members are expected to support each other 

in violent confrontations and are subjected to punishment from their own gang if they fail 

to live up to their responsibilities. “Backup” in confrontations with rival gangs is very 

important because there is strength in numbers, both in actual fights and for intimidation 

purposes. 

Vi opined that Tiny Rascals Gang (Tiny Rascals or T.R.G.) was a criminal 

street gang on the date of the incident in question. Based on defendant’s numerous prior 

interactions with police in which he admitted to his membership in Tiny Rascals, 

defendant’s tattoo with T.R.G. symbolism, Vi’s personal interactions with defendant, 

defendant’s videotaped participation in “jumping in” gang ceremonies (pursuant to which 

the new member is beaten up by existing members), photographs depicting defendant 

displaying T.R.G. hand signs, and the investigation of this case, Vi opined that defendant 

was an active participant in Tiny Rascals when the crimes at issue occurred. Indeed, 

defendant admitted to another officer that he was a “lieutenant” in Tiny Rascals (i.e., in 

between the “shot callers” at the top and younger members). And a nonpolice witness 

testified defendant was a T.R.G. member. Vi also opined that a hypothetical crime, like 

the actual crime described below, would have been committed for the benefit of, at the 

direction of, and in association with a criminal street gang. The parties stipulated that 

Tiny Rascals had engaged in a pattern of criminal activity prior to the crimes at issue. 

Two allied gangs were involved in the pursuit of the victims’ car, Tiny 

Rascals and Hellside (T.R.G.’s ally since 2009). The victims in this case were linked to 

three allied gangs, all rivals of Tiny Rascals and Hellside: Viet Together (also known as 

V.T.), Power of Viet (also known as P.O.V.), and Asian Family (also known as A.F.). 
4

Antipathy characterized the relations between, on the one hand, Tiny 

Rascals and Hellside, and, on the other hand, their rivals Viet Together, Asian Family, 

and Power of Viet. Prior to the incident in question, the gangs had perpetrated acts of 

vandalism against their rivals’ residences (cleverly referred to as “playing house”). The 

week before the incident, a fistfight occurred at a karaoke restaurant. Defendant stared 

menacingly (“mad dogged”) and punched an individual in the face. Someone said, “This 

is T.R.G. You guys got shit.” Someone else said, “Fuck Asian Family.” According to 

defendant (speaking in another context), one of Tiny Rascals’ goals was to make Viet 

Together “die out.” 

Phi Hong Pool Hall (the pool hall) was a hangout for members of Viet 

Together, Asian Family, and Power of Viet. Defendant and the other Tiny Rascals were 

aware that the pool hall was an area claimed by those rival gangs. Defendant did not like 

to go there; he had been jumped (i.e., physically attacked) at this location by members of 

a different gang (not the gangs at issue in this case) in the past. 

Violence Leading to Charges 

On the night of the incident in question, there was a party at the home of 

Andrew Tran, an individual with ties to Tiny Rascals. Approximately 15 to 20 people 

attended. About half the males at the party were members of Tiny Rascals, about half 

were members of Hellside. Some of the attendees angrily discussed recent incidents 

involving their rivals, Asian Family, Viet Together, and Power of Viet. Tran was 

angered by a recent fight, and others were in turn riled up by the discussion. The party 

broke up around midnight, as various individuals went out to eat. In Tran’s car were a 

teenage girl related to Tran, Tran’s cousin, and two of Tran’s friends. When they were 

leaving the party, one of Tran’s friends put a gun into the car. Ultimately, this group 

went to the pool hall. Tran’s relatives stayed in the car while the others got out. 
5

At approximately 2:00 a.m., outside the pool hall on March 20, 2011, 

between four and seven vehicles were blocking the path out of the parking lot. One of 

the cars at the pool hall was driven by defendant. The people in the cars were the same 

people who were at the T.R.G./Hellside party earlier in the night. One of the passengers 

in defendant’s car, Anthony Nguyen, knew there was a plan to lure rival gang members 

outside to fight. Defendant and others would use their cars as a roadblock to prevent the 

victims from leaving the pool hall parking lot. Defendant never got out of his car at the 

pool hall. 

Two groups of males (one group with about six individuals, the other with 

about eight individuals) were standing outside yelling at each other. Someone shouted, 

“Fuck A.F.” People were yelling, “Fuck V.T.” and “Fuck Asian Family.” Scottie Bui 

yelled, “P.O.V.” Someone else said, “T.R.G.” 

The plan to prevent the rival gang members from leaving changed when 

Tiny Rascals and Hellside members determined someone in the other group had a gun. 

When Tran got back in his car, he said a gang was there. The eight males affiliated with 

Viet Together, Power of Viet, and Asian Family piled into a sports utility vehicle (SUV). 

When a SUV passed his automobile, Tran said, “That’s them.” Tran’s car followed the 

vehicle. A number of cars sped out of the parking lot. There were probably five or more 

cars. Defendant drove his car out of a different exit than the other cars, but turned right 

and tried to catch up with his friends. 

The individual in the front passenger seat of Tran’s car, Benjamin Nguyen, 

rolled down his window and told Tran to accelerate. Benjamin Nguyen yelled at the 

SUV, asking whether they were in a gang. Three to five gunshots were fired by 

Benjamin Nguyen. The shooting occurred approximately 150 to 400 yards from the pool 

hall parking lot. Scottie Bui was shot and killed. Roger James was shot and suffered 

great bodily injury. Defendant’s car was approximately 50 to 60 yards from where the 

shooting occurred. 
6

At least some of the Tiny Rascals and Hellside affiliated individuals 

involved in the confrontation (including defendant) met at the residence of a Hellside 

member, Tony Ngo. People talked about the fact that a shooting occurred. It was stated 

at this meeting that everyone should “lay low” and not mention the incident. 

Defendant’s Admissions and Deceitful Statements to Police 

When defendant was interviewed by a police officer later in the day of the 

shooting (March 20, 2011), defendant stated that he was at a girlfriend’s house all night, 

starting at noon the previous day. Defendant claimed his car was not running due to tire 

or axle problems. Defendant was able to identify a photograph of victim Bui by his 

nickname and his gang affiliation with Power of Viet. Defendant was also able to 

identify a photograph of victim James by his first name and his gang affiliation with 

either Asian Family or Power of Viet. 

After the officer investigated defendant’s alibi, the officer confronted 

defendant with the results of his investigation. Defendant admitted he had lied about 

being at a girlfriend’s house. Defendant admitted he had asked the girlfriend and her 

mother to lie about his presence. Defendant then claimed he received a phone call 

directing him to the pool hall from Tran to provide “backup”; defendant heard arguing 

and individuals claiming gang membership in the background of the phone call. 

Defendant drove to the pool hall location, but arrived after “it had happened.” Defendant 

admitted he was aware that Hellside and Tiny Rascals gang members were together 

earlier that night and that Hellside members had guns. Defendant denied that any Tiny 

Rascals had firearms on the night in question. 

About a month after the incident, defendant was interviewed a third time, 

having been arrested and read his rights. Defendant admitted he was at the party at 

Tran’s house with many individuals from Tiny Rascals and Hellside. Defendant agreed 

there was sentiment expressed at the party about the commission of violence against their 
7

gang rivals: “I mean, people were drinking, I mean, they did say like, oh yeah, fuck 

POV, fuck VT, but it wasn’t like oh, yeah, let’s go out and look for them. It was just like, 

man, fuck those fools, this and that. Or like, oh, if I catch those guys doing, I’ll shoot 

‘em or I’ll beat ‘em up, you know, like people were talking ‘cause they were drinking.” 

According to defendant, it was “[m]ainly the Hellside guys.” Defendant left the party to 

go to an establishment known as a hangout for rival gangs, Volcano Tea. The officer 

asked defendant, “What’s gonna happen if you see them there, Tien?” Defendant 

responded, “Yeah. The guys in my car are gonna try — probably try to bang on them.” 

Right after defendant received a phone call about the pool hall, there were 

people that wanted to go. Defendant drove his car to the pool hall. Defendant agreed 

(“Yeah”) with the officer’s premise that by going to the pool hall defendant “knew that at 

least a fucking brawl was going to happen.” Defendant agreed it was true he went to the 

pool hall to backup the Tiny Rascals. Defendant stated, “I mean two groups and both 

sides have weapons, yeah, someone’s gonna get hurt hard.” Defendant knew it was 

going to be bad when Hellside members started opening their vehicle trunks; defendant 

assumed they were retrieving weapons. Hellside members had talked at the party about 

having guns. Benjamin Nguyen and someone named Dung had guns. When the cars 

started pulling out onto the street, defendant chased the group in his car. Defendant 

“knew . . . after everything’s done like we just happen to stop chasing them, we’re going 

to meet somewhere down there anyways.” “I knew it wasn’t over because nothing 

happened and then, when I turn out to this corner, yeah, I could of went straight, I could 

have made a left but, I mean, everyone’s going this way. All my homies going this way.” 

After the shooting happened, Dung told defendant to get out of the area. The group later 

met up at someone’s house, where two individuals criticized Benjamin Nguyen for 

missing. 

At the conclusion of the interview, defendant asked, “Is there a way I could 

get out of this?” and “so, there’s no way you could help me out?” 
8

DISCUSSION 

The prosecutor argued three theories of liability to the jury with regard to 

the murder of Bui, the attempted murder of James, and discharging a firearm at an 

occupied vehicle: (1) defendant aided and abetted these crimes; (2) defendant aided and 

abetted a different crime (i.e., “disturbing the peace by challenging someone to fight 

and/or assault with a deadly weapon”), the natural and probable consequence of which 

was the commission of the charged offenses; and (3) defendant entered into a conspiracy 

to commit a crime, the natural and probable consequence of which was the commission 

of the charged offenses. 

Defendant claims the jury instructions provided with regard to these 

theories were erroneous. Defendant did not challenge the relevant instructions below. 

(See People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163 [party forfeits challenge to 

instructions that correctly state the law in general, even if the instructions are misleading 

in the particular case].) We address the merits of his contentions of instructional error, 

both because defendant contends the alleged errors affected his substantial rights (§ 1259) 

and because defendant argues in the alternative that he received ineffective assistance of 

counsel with regard to the jury instructions. 

Defendant also asserts there was insufficient evidence to support any of his 

convictions and that the court erred by imposing (then staying) section 186.22, 

subdivision (b)(1)(C), enhancements. We address each contention in turn. 

Instructions on Aiding and Abetting Liability 

The first question presented is whether the pertinent CALCRIM form 

instructions on direct aiding and abetting liability (CALCRIM Nos. 401, 402) adequately 

state the law with regard to establishing defendant’s mens rea. 
9

We begin with an exposition of relevant legal principles. “‘All persons 

concerned in the commission of a crime, . . . whether they directly commit the act 

constituting the offense, or aid and abet in its commission, . . . . are principals in any 

crime so committed.’ [Citations.] Thus, a person who aids and abets a crime is guilty of 

that crime even if someone else committed some or all of the criminal acts. [Citation.] 

Because aiders and abettors may be criminally liable for acts not their own, cases have 

described their liability as ‘vicarious.’ [Citation.] This description is accurate as far as it 

goes. But . . . the aider and abettor’s guilt for the intended crime is not entirely vicarious. 

Rather, that guilt 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. McCoy (2001) 25 Cal.4th 1111, 

1116-1117.) 

Thus, assuming the natural and probable consequences doctrine is 

inapplicable, an aider and abettor can be guilty of the same crime as the perpetrator, or a 

greater or lesser crime than the perpetrator, depending on the respective mental states of 

the various principals. (See People v. McCoy, supra, 25 Cal.4th at pp. 1117, 1122; 

People v. Loza (2012) 207 Cal.App.4th 332, 351-355.) Examples illustrate this 

phenomenon better than generalities. The more unlikely scenario is one in which the 

perpetrator has a lower level of liability than the aider and abettor. Two individuals shoot 

at a victim, but the one who actually hits the victim has an unreasonable self-defense 

theory, potentially reducing his criminal liability below that of the aider and abettor. 

(People v. McCoy, supra, 25 Cal.4th at p. 1122.) Iago maliciously induces and 

encourages Othello (who it might be posited is acting in the heat of passion) into killing 

Desdemona, rendering the aider and abettor guilty of first degree murder but the 

perpetrator guilty of manslaughter. (Id. at pp. 1121-1122.) More commonly, perhaps, 

aiders and abettors can be held liable for lesser crimes than the actual perpetrator. A 

spouse provides assistance to her husband during a violent confrontation, which ends in 

her husband committing first degree murder; the jury must determine the wife’s intent in 
10

assisting her husband during the incident. (People v. Loza, supra, 207 Cal.App.4th at pp. 

336, 356.) A street fight ends in the stabbing death of one of the combatants; the victor’s 

sister, present at the scene and accused of assisting her brother, might bear less 

responsibility than her brother. (People v. Nero (2010) 181 Cal.App.4th 504, 507-508, 

519.) 

Defendant suggests the following standard CALCRIM instructions do not 

make clear the jury’s obligation to focus on the aider and abettor’s mens rea for purposes 

of direct aider and abettor liability. “A person may be guilty of a crime in two ways. 

One, he or she may have directly committed the crime. I will call that person the 

perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly 

committed the crime. A person is guilty of a crime whether he or she committed it 

personally or aided and abetted the perpetrator. . . .” (CALCRIM No. 400.) “To prove 

that the defendant is guilty of a crime based on aiding and abetting that crime, the People 

must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew 

that the perpetrator intended to commit the crime; [¶] 3. Before or during the 

commission of the crime, the defendant intended to aid and abet the perpetrator in 

committing the crime; [¶] AND [¶] 4. The defendant’s words or conduct did in fact aid 

and abet the perpetrator’s commission of the crime. [¶] Someone aids and abets a crime 

if he or she knows of the perpetrator’s unlawful purpose and he or she specifically 

intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the 

perpetrator’s commission of that crime. . . .” (CALCRIM No. 401.) 

Relying primarily on a case that has since been depublished as a result of a 

grant of review on a different issue,

2

 defendant claims the form instructions (CALCRIM 

Nos. 400, 401) allow the jury to utilize the mens rea of the perpetrators (the shooter, 

Benjamin Nguyen, in particular) to convict defendant. We see no plausible theory 

 

2

 People v. Ramirez, review granted Dec. 18, 2013, S214133. 
11

pursuant to which these instructions are problematic as to defendant’s convictions for 

attempted murder3

 and willfully discharging a firearm at an occupied vehicle.

4

 

CALCRIM No. 401 clearly requires the jury to find that defendant knew the perpetrator 

(Benjamin Nguyen) intended to commit these crimes and that defendant intended to aid 

and abet Benjamin Nguyen in the commission of these crimes. Defendant does not 

explain, and we cannot divine, how the instructions could be read as an invitation to hold 

defendant vicariously liable for Benjamin Nguyen’s mental state on these counts. 

As the previously listed examples of divergent liability suggest, however, 

murder is particularly problematic in the aiding and abetting context because the same 

conduct constitutes different crimes (e.g., first degree murder, second degree murder, 

voluntary manslaughter) depending on the mental state of the principals. The jury in this 

case was tasked with deciding whether defendant was guilty of first degree or second 

degree murder pursuant to CALCRIM Nos. 520, 521, and 640. In murder cases, 

particularly those in which both the perpetrator and aider and abettor are being tried at the 

same time, there is a danger that a careless rendering of the CALCRIM instructions could 

 

3

 The court instructed the jury with CALCRIM No. 600, which states in 

relevant part: “The defendant is charged in Count 2 with attempted murder. [¶] To 

prove that the defendant is guilty of attempted murder, the People must prove that: [¶] 1. 

The defendant took at least one direct but ineffective step toward killing another person; 

[¶] AND [¶] 2. The defendant intended to kill that person. . . .” We note that the 

attempted murder count did not include an allegation that the attempted murder was 

“willful, deliberate, and premeditated.” (§ 664, subd. (a).) Even if it had, section 664, 

subdivision (a), “properly interpreted, does not require personal willfulness, deliberation, 

and premeditation on the part of an attempted murderer.” (People v. Lee (2003) 31 

Cal.4th 613, 616-617.) 

4

 The court instructed the jury with CALCRIM No. 965, which states in 

relevant part: “The defendant is charged in Count 3 with shooting at an occupied motor 

vehicle. [¶] To prove that the defendant is guilty of this crime, the People must prove 

that: [¶] 1. The defendant willfully and maliciously shot a firearm; [¶] AND [¶] 2. The 

defendant shot the firearm at an occupied motor vehicle.” 
12

confuse the jury as between the aider and abettor’s mens rea and that of the perpetrator. 

The instructions pertaining to murder required the jury to find “the defendant” committed 

the crimes at issue. Of particular importance is CALCRIM No. 521, which provides in 

relevant part: “The defendant is guilty of first degree murder if the People have proved 

that he acted willfully, deliberately, and with premeditation. The defendant acted 

willfully if he intended to kill. The defendant acted deliberately if he carefully weighted 

the considerations for and against his choice and, knowing the consequences, decided to 

kill. The defendant acted with premeditation if he decided to kill before completing the 

act that caused death.” Obviously, defendant did not “complet[e] the act that caused 

death.” This instruction could have confused the jury had defendant and Benjamin 

Nguyen been on trial at the same time. The unexplained use of the general term “the 

defendant” in these instructions may be inappropriate in a multiple defendant aiding and 

abetting case. 

Here, however, defendant was the only individual on trial. When reviewing 

the direct aiding and abetting instructions in conjunction with the substantive murder 

instructions, the jury could only conclude that it needed to focus on defendant’s mens rea 

for purposes of direct aiding and abetting liability. CALCRIM No. 640 also helpfully 

sets forth the process for the jury to follow in determining whether “the defendant” (not 

Benjamin Nguyen) was guilty of first degree murder, second degree murder, or not at all 

with regard to count 1. “We determine the correctness of the jury instructions from the 

entire charge of the court, not from considering only parts of an instruction or one 

particular instruction.” (People v. Smith (2008) 168 Cal.App.4th 7, 13.) There is no 

reasonable likelihood the jury was confused by the instructions or applied them 

incorrectly in the manner contended by defendant. (See People v. Young (2005) 34 

Cal.4th 1149, 1202-1203.)5

 

5

 During deliberations, the jury sent a note to the trial court asking for “exact 

language describing definitions of 1st degree and 2nd degree murder.” After consulting 
13

Instructions on Aiding and Abetting With Natural and Probable Consequences Doctrine 

Defendant also claims the jury instructions (those cited above in 

conjunction with CALCRIM No. 403) were prejudicially erroneous with regard to the 

prosecutor’s theory that the charged crimes were the natural and probable consequences 

of uncharged crimes that defendant aided and abetted. 

“[A] defendant may be held criminally responsible as an accomplice not 

only for the crime he or she intended to aid and abet (the target crime), but also for any 

other crime that is the ‘natural and probable consequence’ of the target crime.” (People 

v. Prettyman (1996) 14 Cal.4th 248, 261.) A jury “must find that the defendant, acting 

with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or 

 

with counsel, the court responded, “The exact language describing definitions of 1st 

degree and 2nd degree murder is contained in CALCRIM Instruction No. 520 and 521.” 

The jury later sent a second note, indicating that it was unable to “find an explicit 

definition to determine the difference between 1st and 2nd degree murder as per 520 and 

521.” After again consulting with counsel, the trial court provided the following 

explanation: “For purposes of this case, first degree murder is the unlawful killing of a 

human being with malice aforethought. For first degree murder, express malice is 

required, i.e., an intent to kill, and, such intent to kill must be accompanied by a killing 

done with premeditation and deliberation. Premeditation and deliberation is explained in 

CALCRIM 521. [¶] Second degree murder, again for purposes of this case, is the 

unlawful killing of a human being with malice aforethought. Second degree murder can 

result when: [¶] 1. There is an unlawful intent to kill, i.e., express malice, but the act of 

killing is done without premeditation and deliberation or insufficient evidence of 

premeditation and deliberation. [¶] 2. Second degree murder can also be the unlawful 

killing of a human being based on ‘implied’ malice, i.e., (1) If the unlawful act of killing 

is intentionally done; and (2) The natural and probable consequences of the act were 

dangerous to human life; and (3) At the time the person committed the act, he knew his 

act was dangerous to human life; and (4) He deliberately acted with conscious disregard 

for human life.” These questions and responses do not suggest any confusion on the part 

of the jury with regard to their obligation to examine defendant’s mental state as part of 

an inquiry into direct aiding and abetting liability. (Cf. People v. Nero, supra, 181 

Cal.App.4th at p. 519 [jury expressly asked about possibility of aider and abettor being 

held liable for lesser crime, which questions were erroneously addressed by court’s 

statement that “‘[e]ach principal . . . is equally guilty’”]; People v. Loza, supra, 207 

Cal.App.4th at pp. 353-355 [follows Nero in similar circumstances].) 
14

purpose of committing, encouraging, or facilitating the commission of a predicate or 

target offense; (3) by act or advice aided, promoted, encouraged or instigated the 

commission of the target crime[;] (4) the defendant’s confederate committed an offense 

other than the target crime; and (5) the offense committed by the confederate was a 

natural and probable consequence of the target crime that the defendant aided and 

abetted.” (Id. at p. 262, fn. omitted.) 

A charged crime is a natural and probable consequence of a target crime if 

it was reasonably foreseeable that the charged crime would be committed. “The . . . 

question is not whether the aider and abettor actually foresaw the additional crime, but 

whether, judged objectively, it was reasonably foreseeable.” (People v. Mendoza (1998) 

18 Cal.4th 1114, 1133.) 

Thus, under this theory of the case, the prosecutor did not need to prove 

defendant had any subjective knowledge or intent that a murder (first degree or second 

degree), attempted murder, or discharge of a firearm would occur. It was enough to 

prove that defendant intended to (and actually did) aid and abet one of the target offenses, 

and that the crimes actually committed by Benjamin Nguyen were natural and probable 

consequences of the target offense. Hence, the relevant mens rea for purposes of first 

degree murder (or second degree murder), attempted murder, and discharge of a firearm 

at an occupied vehicle was that of Benjamin Nguyen, not that of defendant. Defendant’s 

mental state was only relevant to proving his intent to aid and abet the target offenses. 

The jury was instructed with CALCRIM No. 403, modified to include 

pertinent crimes as follows: “Before you may decide whether a defendant is guilty of first 

degree murder, second degree murder, attempted murder, or shooting at an occupied 

motor vehicle on the natural and probable consequences doctrine of aiding and abetting 

law, you must decide whether he is guilty of disturbing the peace by challenging 

someone to fight and/or assault with a deadly weapon. [¶] To prove that the defendant is 

guilty of first degree murder, second degree murder, attempted murder, or shooting at an 
15

occupied motor vehicle, the People must prove that: [¶] 1. The defendant is guilty of 

disturbing the peace by challenging someone to fight and/or assault with a deadly 

weapon; [¶] 2. During the commission of disturbing the peace by challenging someone 

to fight and/or assault with a deadly weapon a coparticipant in that disturbing the peace 

by challenging someone to fight and/or assault with a deadly weapon committed the 

crime of first degree murder, second degree murder, attempted murder, or shooting at an 

occupied motor vehicle; [¶] AND [¶] 3. Under the circumstances, a reasonable person 

in the defendant’s position would have known that the commission of first degree murder, 

second degree murder, attempted murder, or shooting at an occupied motor vehicle was a 

natural and probable consequence of the disturbing the peace by challenging someone to 

fight and/or assault with a deadly weapon. A coparticipant in a crime is the perpetrator or 

anyone who aided and abetted the perpetrator. It does not include a victim or innocent 

bystander. 

“A natural and probable consequence is one that a reasonable person 

would know is likely to happen if nothing unusual intervenes. In deciding whether a 

consequence is natural and probable, consider all of the circumstances established by the 

evidence. If the first degree murder, second degree murder, attempted murder, or 

shooting at an occupied motor vehicle, was committed for a reason independent of the 

common plan to commit the disturbing the peace by challenging someone to fight and/or 

assault with a deadly weapon, then the commission of the first degree murder, second 

degree murder, attempted murder, or shooting at an occupied motor vehicle was not a 

natural and probable consequence of disturbing the peace by challenging someone to 

fight and/or assault with a deadly weapon. [¶] To decide whether the crime of first 

degree murder, second degree murder, attempted murder, or shooting at an occupied 

motor vehicle was committed, please refer to the separate instructions that I will give you 

on those crimes. [¶] The People are alleging that the defendant originally intended to aid 

and abet disturbing the peace by challenging someone to fight and/or assault with a 
16

deadly weapon. [¶] If you decide that the defendant aided and abetted one of these 

crimes and that first degree murder, second degree murder, attempted murder, or 

shooting at an occupied motor vehicle was a natural and probable consequence of that 

crime, the defendant is guilty of first degree murder, second degree murder, attempted 

murder, or shooting at an occupied motor vehicle. [¶] You do not need to agree about 

which of these crimes the defendant aided and abetted.” (Italics added.) 

According to defendant (again relying on a subsequently depublished 

opinion as referenced in fn. 2), this instruction “did not tell the jury the shooter’s 

premeditation of the murder was a necessary element of the offense and [defendant’s] 

liability for first degree murder required a determination of the shooter’s premeditation as 

part of the natural and probable consequence of whatever lesser crime the jury 

determined that [defendant] himself had intended to commit. [Citation.] To the contrary, 

CALCRIM No. 403 permitted the jury to find [defendant] guilty of first degree murder 

based solely on the shooter’s premeditation.” 

But defendant simply ignores the repeated references (italicized above) to 

both first degree murder and second degree murder in CALCRIM No. 403 as provided to 

the jury in this case. The jury was not provided with an undifferentiated reference to 

“murder” being a natural and probable consequence of the target offenses. (Cf. People v. 

Favor (2012) 54 Cal.4th 868, 882 (dis. opn. of Liu, J.) [jury “asked to determine only 

whether ‘the commission of attempted murder was a natural and probable consequence of 

the commission of the robbery’” rather than premeditated attempted murder].) Instead, 

the logical path blazed for the jury by the version of CALCRIM No. 403 in this case was 

to determine which, if any, of the charged crimes was a natural and probable consequence 

of the uncharged target offenses. In following this path, the jury would then naturally 

proceed to examine the separate instructions for the charged offenses. These instructions 

(including CALCRIM No. 521) accurately distinguish between the mental states required 

for first degree and second degree murder. 
17

Uncharged Conspiracy Instruction 

“Pursuant to section 182, subdivision (a)(1), a conspiracy consists of two or 

more persons conspiring to commit any crime. A conviction of conspiracy requires proof 

that the defendant and another person had the specific intent to agree or conspire to 

commit an offense, as well as the specific intent to commit the elements of that offense, 

together with proof of the commission of an overt act ‘by one or more of the parties to 

such agreement’ in furtherance of the conspiracy.” (People v. Morante (1999) 20 

Cal.4th 403, 416, fn. omitted.) Defendant was not charged with the separate crime of 

conspiracy in this case. 

Defendant takes issue with the jury being charged with instructions 

(CALCRIM Nos. 416-420) pertaining to the prosecutor’s third theory of liability, to wit, 

defendant entered into an uncharged conspiracy with Tiny Rascals and/or Hellside gang 

members to commit certain criminal acts (disturbing the peace by willfully fighting or 

challenging someone to fight), the natural and probable consequence of which was the 

charged offenses (murder, attempted murder, and discharging a firearm at an occupied 

vehicle). 

Defendant does not identify a particular problem with these instructions or 

with the uncharged conspiracy theory being applied to the facts of this case. Instead, in a 

sprawling examination of hoary case law, defendant espouses the position that this theory 

of liability is unlawful generally as not authorized by the Penal Code or section 31 in 

particular.6

 

6

 “All persons concerned in the commission of a crime . . . whether they 

directly commit the act constituting the offense, or aid and abet in its commission, or, not 

being present, have advised and encouraged its commission . . . are principals in any 

crime so committed.” (§ 31.) 
18

We are unwilling to engage with the merits of defendant’s lengthy 

treatment of this issue. “It is long and firmly established that an uncharged conspiracy 

may properly be used to prove criminal liability for acts of a coconspirator.” (People v. 

Belmontes (1988) 45 Cal.3d 744, 788, disapproved on another point in People v. Doolin

(2009) 45 Cal.4th 390, 421, fn. 22.) “One who conspires with others to commit a felony 

is guilty as a principal.” (In re Hardy (2007) 41 Cal.4th 977, 1025 [citing § 31].) We are 

required to follow the decisions of our Supreme Court. Defendant makes no effort in his 

opening brief to argue that the facts of this case fall outside of established Supreme Court 

authority; instead, defendant argues that courts (including our Supreme Court) have been 

mistaken about this issue. 

Sufficiency of the Evidence — All Counts 

Next, defendant asserts the evidence was insufficient to support each of his 

convictions. “In reviewing a challenge to the sufficiency of the evidence, ‘we “examine 

the whole record in the light most favorable to the judgment to determine whether it 

discloses substantial evidence — evidence that is reasonable, credible and of solid value 

— such that a reasonable trier of fact could find the defendant guilty beyond a reasonable 

doubt.” [Citations.] We presume in support of the judgment the existence of every fact 

the trier could reasonably deduce from the evidence.’” (People v. Alexander (2010) 49 

Cal.4th 846, 917.) 

The direct and circumstantial evidence in this case can be summarized as 

follows: (1) defendant was a member of Tiny Rascals Gang; (2) Tiny Rascals and 

Hellside were allied against three rival gangs, Asian Family, Viet Together, and Power of 

Viet; (3) the two sides engaged in reciprocal vandalism and physical violence during the 

time period leading up to the night in question; (4) numerous Tiny Rascals and Hellside 

gang members, including defendant, were present at a party hours before the shooting; 

(5) defendant was aware that individuals at the party were in possession of guns; (6) the 
19

gang rivalry was discussed, including angry statements suggesting the rivals would be 

attacked; (7) Tiny Rascals and Hellside members spread out into the community; (8) 

eventually, defendant was contacted by Tran to come to the pool hall to provide 

“backup”; (9) defendant responded to the call, joining in with approximately five other 

cars partially blocking the parking lot exit; (10) some individuals from defendant’s group 

(but not defendant or anyone in his car) got out of their cars and confronted a group of 

approximately eight individuals affiliated with Asian Family, Viet Together, and Power 

of Viet; (11) numerous gang names were shouted, amounting to challenges to a violent 

confrontation; (12) a fight did not actually occur, perhaps because defendant’s group 

feared that their rivals had a gun; (13) the two groups got into their respective cars; (14) 

the rivals’ car was allowed to leave the parking lot; (15) numerous cars from defendant’s 

group followed, including defendant, who used an alternate exit from the lot that left him 

behind the action; (16) with Tran driving, Benjamin Nguyen shot at the rivals’ car a few 

hundred yards down the street, killing Bui and injuring James; and (17) Tiny Rascals and 

Hellside members, including defendant, met at a residence afterward and discussed the 

event. 

It is certainly a fair inference from the record that defendant intended to aid 

and abet the uncharged target offenses of disturbing the peace by challenging someone to 

fight (§ 415, subd. (1); CALCRIM No. 2688) and/or assault with a deadly weapon 

(§§ 240, 245(a)(1); CALCRIM No. 875). By his own admission, defendant drove to the 

pool hall to provide “backup” to individuals he knew were armed. Anthony Nguyen, a 

passenger in defendant’s car, knew there was a plan to engage in a fight. Regardless of 

whether defendant specifically agreed at the party to fight his gang’s rivals that night, it 

cannot be denied that he answered the call from Tran to meet at the pool hall to assist in 

that purpose. Furthermore, defendant arrived early enough to observe what was 
20

happening (e.g., Hellside members opening their trunks) and to see the cars leaving the 

parking lot.

7

There is also substantial evidence supporting a finding that defendant, “by 

act or advice,” aided, promoted, and/or encouraged the target offenses. (People v. 

Cooper (1991) 53 Cal.3d 1158, 1164.) “[I]n general[,] neither presence at the scene of a 

crime nor knowledge of, but failure to prevent it, is sufficient to establish aiding and 

abetting its commission. [Citations.] However, ‘[a]mong the factors which may be 

considered in making the determination of aiding and abetting are: presence at the scene 

of the crime, companionship, and conduct before and after the offense.’” (People v. 

Campbell (1994) 25 Cal.App.4th 402, 409.) As shown in the summary of the evidence 

above and the gang expert testimony, everything that happened before and after the actual 

shooting supports the conclusion that defendant aided, promoted, and encouraged the 

target offenses by providing backup to his allies. 

It is typically a question for the jury as to whether murder is a reasonably 

foreseeable consequence of an assault or battery involving gang members. (See People v. 

Medina (2009) 46 Cal.4th 919, 922-924 [killing of fleeing victim by one gang member’s 

gunshot was reasonably foreseeable consequence of all three gang members repeatedly 

challenging victim with gang inquiries and engaging in a fistfight]; People v. Ayala

(2010) 181 Cal.App.4th 1440, 1448-1453 [does not matter that assault did not go 

according to plan]; People v. Gonzales (2001) 87 Cal.App.4th 1, 10-11 [fatal shooting 

during gang-related fistfight was natural and probable consequence of fistfight]; People v. 

Olguin (1994) 31 Cal.App.4th 1355, 1375-1376 [defendant’s punching of victim during 

gang confrontation foreseeably led to fatal shooting of victim by fellow gang member]; 

People v. Godinez (1992) 2 Cal.App.4th 492, 499–500 [fatal stabbing of rival gang 

 

7

 We also note that these same facts support the prosecution’s uncharged 

conspiracy theory, in that defendant agreed to backup Tran and multiple overt acts were 

taken by Tiny Rascals and Hellside members to confront their rivals. 
21

member either during or after fistfight was natural and probable consequence of 

fistfight].) 

It is also for the jury to determine whether attempted murder is a reasonably 

foreseeable consequence of a fight involving gang members. (People v. Caesar (2008) 

167 Cal.App.4th 1050, 1056-1058 [attempted murder conviction based on assault and 

battery as target offenses], disapproved on other grounds in People v. Superior Court 

(Sparks) (2010) 48 Cal.4th 1, 18; People v. Hoang (2006) 145 Cal.App.4th 264, 275-276 

[attempted murder was natural and probable consequence of assault with a deadly 

weapon aided and abetted by gang member defendant]; People v. Montes (1999) 74 

Cal.App.4th 1050, 1054-1056 [attempted murder by shooting of rival gang member 

during retreat from fight was natural and probable consequence of gang fight in which 

defendant wielded a chain]; People v. Montano (1979) 96 Cal.App.3d 221, 225-227 

[defendant’s aiding and encouragement of battery on rival gang victim foreseeably led to 

attempted murder of victim by fellow gang members], superseded by statute on other 

grounds as explained in People v. Singleton (1980) 112 Cal.App.3d 418, 424.) These 

murder and attempted murder cases logically apply in equal measure to count 3, 

discharging a firearm at an occupied motor vehicle. 

The evidence in this record supports a conclusion that the charged offenses 

were natural and probable consequences of the target offenses. Defendant’s fellow gang 

members and allies actively sought out their rivals. Hellside gang members were armed 

with firearms. As testified by the expert witness, gang “hit-ups” are invitations to violent 

confrontations. Defendant himself admitted that he knew things were going to get bad 

when he saw Hellside opening their trunks. There is evidence that the stakes were raised 

further when someone in defendant’s group perceived that their rivals had firearms. The 

short car chase did not separate the fight from the shooting. Our Supreme Court has 

rejected the notion that a jury is required to draw fine distinctions between the fight itself 

and a flight from the fight that ends in murder: “although Vallejo argues that the fistfight 
22

and shooting were not one uninterrupted event, but rather two separate incidents, the 

evidence showed that [defendants] did not consider the fight to be over and that the 

shooting resulted directly from that fight.” (People v. Medina, supra, 46 Cal.4th at pp. 

919, 923-924 [affirming conviction].) Similarly, here the evidence suggests that the 

shooting occurred shortly after the parties entered their vehicles and drove out of the pool 

hall parking lot. 

In sum, even if the jury concluded defendant himself did not have the intent 

to kill, it could have reasonably concluded he was vicariously liable based on the natural 

and probable consequences doctrine. This is not a case in which defendant was convicted 

of murder based merely on his gang membership and his presence at the scene of the 

crime. Rather, this is a case in which defendant requests us “to reweigh the evidence 

after a jury verdict, which is not our job when reviewing a verdict for sufficiency of the 

evidence.” (People v. Mejia (2012) 211 Cal.App.4th 586, 608 [affirming convictions of 

multiple gang members for first degree murder, including some who aided and abetted by 

providing “‘backup’”].) 

As for count 4, street terrorism, “[a]ny person who actively participates in 

any criminal street gang with knowledge that its members engage in or have engaged in a 

pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any 

felonious criminal conduct by members of that gang, shall be punished by 

imprisonment . . . .” (§ 186.22, subd. (a).) Defendant’s argument here is largely 

derivative of his claim that there is insufficient evidence to support his other convictions, 

which provided the basis for concluding that defendant willfully promoted, furthered, or 

assisted in any felonious criminal conduct by members of that gang. Defendant does not 

contest that he actively participated in Tiny Rascals or that he had knowledge of its 

pattern of criminal gang activity. The substantial evidence detailed above supporting 

defendant’s convictions for first degree murder, attempted murder, and discharging a 

firearm at an occupied vehicle supports the street terrorism conviction. (See People v. 
23

Castenada (2000) 23 Cal.4th 743, 749-750 [violation of § 186.22, subd. (a), consists of 

aiding and abetting “separate felony offense committed by gang members”].) 

Street Gang Enhancements 

Defendant’s 50 years to life sentence consists of 25 years to life for first 

degree murder (§ 190, subd. (a)) and a consecutive 25 years to life for the use of a 

handgun during the murder (§ 12022.53, subd. (d), (e)(1)). The court imposed additional 

punishments on the other counts and enhancements, but either ran the sentences 

concurrently or stayed them pursuant to section 654. As to the section 186.22, 

subdivision (b)(1)(C) allegations, which were found true by the jury, the court imposed a 

10-year enhancement as to counts 1, 2, and 3. But the court stayed the execution of 

sentence on these enhancements pursuant to section 654. 

Section 12022.53, subdivision (e)(2) states, “An enhancement for 

participation in a criminal street gang [pursuant to section 186.22] shall not be imposed 

on a person in addition to an enhancement imposed pursuant to this subdivision, unless 

the person personally used or personally discharged a firearm in the commission of the 

offense.” Obviously, defendant did not personally use or discharge a firearm in the 

commission of his offenses. The Attorney General concedes that the court erred by 

imposing, then staying, a 10-year prison term for each of the section 186.22, subdivision 

(b)(1)(C), enhancements to counts 1 through 3. We agree that defendant is entitled to the 

relief he seeks, namely, the striking of the 10-year enhancements imposed pursuant to 

section 186.22, subdivision (b)(1)(C). (See People v. Brookfield (2009) 47 Cal.4th 583, 

596 [“what the trial court cannot do is to impose punishment under both section 186.22 

and section 12022.53”].) 
24

DISPOSITION 

The judgment is modified by striking the section 186.22, subdivision 

(b)(1)(C), enhancements imposed (then stayed) by the court as to counts 1, 2, and 3. The 

trial court is directed to prepare an amended abstract of judgment and forward a certified 

copy to the Department of Corrections and Rehabilitation. The judgment is affirmed as 

modified. 

 IKOLA, J. 

WE CONCUR: 

O’LEARY, P. J. 

MOORE, J.