Opinion
G052501
12-29-2016
In re HUNG LINH HOANG on Habeas Corpus.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Petitioner. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Allison V. Hawley, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 03WF1095) OPINION Original proceedings; petition for a writ of habeas corpus to challenge a judgment of the Superior Court of Orange County, Richard F. Toohey. Petition granted, with directions. James R. Bostwick, Jr., under appointment by the Court of Appeal, for Petitioner. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Allison V. Hawley, Deputy Attorneys General, for Respondent.
* * *
Hung Linh Hoang seeks a writ of habeas corpus to overturn his 2004 conviction for active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a), hereafter § 186.22(a); all further statutory references are to this code). He does not challenge his attempted murder conviction underlying his gang participation offense. Instead, he relies on People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez), which clarified that the gang participation statute applies only when the defendant acts in concert with other gang members to commit a felony, and not when he acts alone. Hoang contends no evidence showed the requisite joint participation of other gang members as principals or aiders and abettors in the attempted murder. He also argues that because Rodriguez only clarified governing law, the trial court erred in failing to instruct the jury on the concerted action requirement. We need not reach Hoang's instructional argument. Because the trial record showed no evidence Hoang's alleged fellow gang members acted in concert or collectively with him to attempt to kill the victim, his conviction for active participation in a criminal street gang must be set aside. We therefore vacate the conviction and direct the trial court to amend the abstract of judgment accordingly and to forward the amended abstract to the Department of Corrections and Rehabilitation.
I
FACTUAL AND PROCEDURAL BACKGROUND
In late 2004, a jury convicted Hoang of active participation in a criminal street gang (the (a) count) and willful, deliberate and premeditated attempted murder (§§ 187, subd. (a), 664), and the jury found true an enhancement allegation that Hoang committed the attempted murder for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)). The trial court sentenced Hoang to an indeterminate term of life in prison with the possibility of parole for the attempted murder conviction, plus a consecutive, determinate term of 10 years for the gang enhancement, and the court stayed under section 654 imposition of punishment on the (a) count. On appeal, defendant asserted that the attempted murder count was a lesser included offense of the (a) count, or vice versa that the (a) count is a lesser included offense of attempted murder when alleged with a gang enhancement. Affirming the judgment, a panel of this court rejected those contentions and also rejected Hoang's claim of prosecutorial misconduct. (People v. Hoang (April 28, 2006, G034779) [nonpub. opn.] (Hoang).) We draw the operative facts for Hoang's habeas challenge from that opinion, in which he is referred to as "defendant," as follows:
"Defendant was a member of and an active participant in the criminal street gang known as Dragon Family Junior/Nip Family Junior (DFJ/NFJ). At 7:00 p.m. on May 3, 2003, 17-year-old S. was in his bedroom when he heard loud shouting in Vietnamese. S. lived with his mother in an apartment complex in Westminster. He looked out his sliding glass door to a parking area. Both defendant and a second man (the victim) were outside yelling.
"S. saw defendant get out of a car and chase the victim around the car a couple of times. Defendant was holding a gun in his right hand. S. heard defendant say in English, '[F]uck you. I'm going to fucking kill you.' S. testified defendant sounded angry. Defendant and the victim faced each other about eight feet apart when defendant pointed the gun at the victim. The victim 'put his hands up to kind of like defend—not defend himself, but to shield him, shield his face, sort of.' Defendant pulled the trigger and S. 'heard the hammer click.' The gun did not fire. The victim jumped and looked shocked; defendant appeared to be angry. Defendant opened the gun where the bullets are kept 'to check to see if there w[ere] any bullets[,]' [according to S.] He went back to the car, opened the door, and reached down by the side of or underneath the seat on the floorboard. S. never saw the victim with a weapon. After he saw defendant go back to his car, S. went into his mother's bedroom to get a better view of what was happening. By the time he reached the window in his mother's bedroom, the victim had disappeared. [Italics added.] S. saw a third man, later identified as Son Bui, approach defendant, wrestle with him, and try to restrain him.
"S. [then] called 911. [Italics added.] He saw police officers arrive and make contact with defendant, Son Bui, and several other young men who were at the scene.
"Officer Richard Mize was one of the officers who reported to the area that night after he received a report of a disturbance or a fight in a parking lot and an armed subject. In light of the information that one of the subjects was armed with a handgun, Mize and one other officer had their firearms drawn when they arrived on the scene. They ordered the individuals in the area, which included defendant, Son Bui, Chuan Le, Hien Ngo and Tin Nguyen, to lie down on the ground. Mize asked if anyone was carrying a gun. Son Bui stated, 'I have a gun.' An officer removed a silver revolver from Son Bui's pants pocket; S. testified the gun looked like the same one he saw defendant holding. An officer also recovered a sock containing four bullets from Son Bui's pants pocket.
"Mize took custody of the gun. He observed the hammer of the gun was cocked back and the gun was ready to fire. Mize opened the cylinder of the gun and found one live bullet that had not been fired. He observed a dimple on the casing, which resembled a 'strike mark.' Mize testified that a strike mark is a mark made when the trigger is pulled, the hammer strikes the casing, but the gun does not fire. Although the dimple was consistent with a strike mark caused by the misfire, Mize could not say for certain that was the cause for the mark. He testified it is not uncommon for a weapon to misfire. Mize later determined the gun had been reported stolen in 2002 during a residential burglary in Garden Grove.
"That night, Mize spoke to DFJ/NFJ member Tin Nguyen at the scene. Nguyen appeared to be afraid and whispered when he talked to Mize. Mize testified Nguyen said he did not want to talk to Mize because he was afraid he would be seen talking to a police officer. He told Mize that he heard some yelling and then saw defendant yelling and chasing another person; defendant had a gun in his hand. Nguyen stated he knew defendant as Ronnie and said he did not know the other person, but 'he was one of Ronnie's homies.' A homie or homeboy is a fellow gang member. Nguyen later saw Son Bui standing by defendant, trying to calm him down. Son Bui has a brother named Vu Bui known by his moniker 'Voo Doo' who is a member of DFJ/NFJ.
"At trial, Nguyen testified to a different version of events than what he had told Mize. He testified that on May 3, 2003, he saw 'some guy chasing Ronnie around his car' and 'Son Bui came down and took the gun away from the guy's hand.' Nguyen identified 'the guy' chasing defendant as Hong Tran. He stated Tran was a friend whom he has known for a year and thinks he was affiliated with DFJ/NFJ. When asked whether defendant was a fellow DFJ/NFJ member, Nguyen stated, 'I'm not sure.' Nguyen testified that it is not a good thing to rat on somebody who is a fellow gang member and that if you do, you either get killed or beat up-especially if you are in custody. Testifying in front of jurors could 'cause somebody to get killed.'
"Mize also spoke with DFJ/NFJ member Le at the scene and later at the police station. At the scene, Le told Mize that defendant 'told Son Bui that he wasn't his homie any more or home boy any more' and stated 'I'm tired of this shit.' Le said he never saw anyone with a gun. At the police station, Le told Mize he had been lying and did not want to tell Mize what had happened while he was 'out there in front of everyone else.' Le told Mize that when he arrived that night, there was an argument going on in the parking lot. He saw defendant standing in the parking lot by the car, holding a silver handgun, and heard him yelling at Son Bui. Defendant did not point the gun at Son Bui, but waved it around while yelling. Le heard defendant tell Son Bui 'you're not my home boy any more. You shouldn't have done that' and 'I'm tired of this.'
"At trial, Le described a different version of what happened that night. During direct examination, the prosecutor asked whether Le remembered an incident on May 3 and Le answered, '[Y]es, sir.' The prosecutor asked, '[D]o you know which year I am going to ask you about?' and Le responded, 'I say, he is innocent. I saw everything.' Le testified he saw someone with a gun chase defendant around his car. Le denied telling the police he saw defendant with a gun in his hand. He denied telling the police that defendant told Son Bui, '[Y]ou ain't my homie no more. What you did was wrong.' Le added that he does not want to be involved, or to talk about anyone in a gang." (Hoang, supra, at pp. 2-5.)
II
DISCUSSION
Hoang challenges the sufficiency of the evidence to support his conviction for active participation in a criminal street gang. He argues no evidence shows he acted in concert with other gang members in committing attempted murder as the underlying felony offense for the active gang participation count (§ 186.22(a)). He notes he did not earlier raise the issue because of the longstanding interpretation that section 186.22(a) applied to a gang member who acted alone in committing a gang-related offense. (See, e.g., People v. Salcido (2007) 149 Cal.App.4th 356, 368, relying on People v. Ngoun (2001) 88 Cal.App.4th 432, 436.) Because Rodriguez overruled this line of cases and held a gang member who acts alone in committing an underlying offense does not violate section 186.22(a), Hoang contends habeas relief is appropriate because in the absence of evidence any of his fellow gang members participated in the attempted murder, he did not violate the statute under which he was convicted. (People v. Mutch (1971) 4 Cal.3d 389, 396 (Mutch).) Based on Rodriguez, we agree Hoang is entitled to relief.
In Rodriguez, the Supreme Court explained that a gang member who acts alone in committing felonious conduct does not violate section 186.22(a). That section punishes "[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 . . . ." Accordingly, the elements of the gang participation offense defined in section 186.22(a) are: "First, active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; second, knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang." (Rodriguez, supra 55 Cal.4th at p. 1130.)
The Supreme Court observed as to the third element concerning felonious criminal conduct that "it is significant that the offense requires a defendant to promote, further, or assist members of the gang." (Rodriguez, supra, 55 Cal.4th at p. 1131, original italics.) The court held that because the third element requires the defendant to "willfully advance, encourage, contribute to, or help members of his gang commit felonious criminal conduct," "[t]he plain meaning of section 186.22(a) requires that felonious criminal conduct be committed by at least two gang members, one of whom can include the defendant if he is a gang member." (Rodriguez, at p. 1132.)
The high court explained that while the necessity of two or more gang members acting together narrowed the reach of section 186.22(a), the felonious criminal conduct they commit need not be gang related because the substantive gang offense (§ 186.22(a)) and the gang enhancement (§ 186.22, subd. (b)(1)) "strike at different things." (Rodriguez, supra, 55 Cal.4th at p. 1138.) The latter "punishes gang-related conduct, i.e., felonies committed with the specific intent to benefit, further, or promote the gang," but the former is broader in reaching joint conduct because "the Legislature sought to punish gang members who acted in concert with other gang members in committing a felony regardless of whether such felony was gang-related." (Ibid., original italics; see also People v. Albillar (2010) 51 Cal.4th 47, 55 ["there is nothing absurd in targeting the scourge of gang members committing any crimes together and not merely those that are gang related," original italics].)
The Supreme Court in Rodriguez concluded that, "[a]lthough the People might prefer a different statute, section 186.22(a) reflects the Legislature's carefully structured endeavor to punish active participants for commission of criminal acts done collectively with gang members." (Rodriguez, supra, 55 Cal.4th at p. 1139, original italics.) The court observed that "[a] lone gang member who commits a felony will not go unpunished; he or she will be convicted of the underlying felony." (Id. at p. 1138.) There, the court held that because the defendant "acted alone in committing the attempted robbery, . . . he did not also violate section 186.22(a)." (Rodriguez, at p. 1139.) The evidence shows the same is true here as to Hoang's attempted murder conviction.
Habeas corpus is a narrow remedy. (In re Catalano (1981) 29 Cal.3d 1, 9; see In re Reno (2012) 55 Cal.4th 428, 486 [habeas grounds "are easy to allege, but difficult to establish"].) "Traditionally, habeas corpus addressed only strict jurisdictional issues." (In re Crockett (2008) 159 Cal.App.4th 751, 758; see § 1487; In re Zerbe (1964) 60 Cal.2d 666, 667.) California decisions make clear, however, that "jurisdiction for purposes of habeas corpus is not limited to its fundamental meaning, that is, jurisdiction over the person or the subject matter, but includes acts that exceed the court's powers as determined by constitutional provision, statute, or court-developed rules." (In re Lopez (2016) 246 Cal.App.4th 350, 360.) The trial court exceeds its jurisdiction when a defendant suffers a conviction for conduct that did not amount to a crime. "'[A] defendant is entitled to habeas corpus if there is no material dispute as to the facts relating to his conviction and if it appears that the statute under which he was convicted did not prohibit his conduct. [Citations.]'" (Ibid.; accord, Mutch, supra, 4 Cal.3d at p. 396.) As we explain, that is the case here.
The Attorney General insists habeas corpus relief must be denied "because petitioner cannot show that he was acting alone at the time of the offense." (Italics added.) Rather, "[s]everal of petitioner's fellow gang members were present when he committed the offense, including Chuan Le, Tin Nguyen, and Hien Ngo." But their mere presence is not enough to show they participated in attempting to kill anyone. "[M]ere presence at the scene of a crime and the failure to take steps to prevent a crime are insufficient to establish aiding and abetting liability." (People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 744.)
The Attorney General relies on eyewitness S.'s 911 call in which he stated, "These two guys got a gun pulled on another guy right—right now." The Attorney General notes that S. "continued, '[T]hese guys are fighting right now. There's like five of them . . . ,'" and S. "then stated that '[t]hey put [the gun] away.'" The Attorney General also observes that "[w]hen the witness testified, he again acknowledged the other individuals who were present but admitted that his attention was focused on petitioner."
But the Attorney General omits in this account a critical detail: specifically, as we observed in our opinion on the direct appeal, S. did not call 911 until he moved into another room for a better view, and in that interim, the victim escaped and fled the scene. Consequently, when S. stated, "These two guys got a gun pulled on another guy right—right now," he could not have been describing a joint assault on the victim because he already had fled. The only reasonable inference is that at this point S. saw Son Bui and the others taking the gun from Hoang, and during the melee Hoang pointed the weapon at them or they pointed it at him. But this snippet of the 911 call and S.'s testimony does not describe the attempted murder with which Hoang was charged and formed the underlying felony for the third element of the alleged section 186.22(a) offense. Nothing S. described showed any of the bystanders aided or helped Hoang attempt to kill the victim. There simply was no such evidence in the record.
The Attorney General also relies on Hoang's attempt at trial to implicate his fellow gang members in what he described as "jumping" a new member into the gang, rather than attempted murder. The Attorney General notes, "Petitioner testified and claimed that he and his fellow gang members were merely engaged in a coordinated effort to 'jump' a new member into the gang. [Citation.] He claimed that the gun belonged to the gang and that, after he pretended to try to shoot the victim, the other gang members beat him up and jumped him into the gang." (Italics added.) According to the Attorney General, "[A]ll of this evidence indicated that petitioner was not acting alone when he committed the offense. Both the 911 call and petitioner's own testimony described coordinated activities involving more than one gang member, and it could reasonably be inferred that the other gang members purposely downplayed the culpability of all the gang members present." (Italics added.)
The flaw in the Attorney General's references to Hoang's testimony concerning a "coordinated effort," "coordinated activities," and evidence that Hoang "was not acting alone" is that none of this evidence suggested his fellow gang members participated or helped him when he attempted to murder the victim. Hoang's attempted murder conviction formed the basis for his section 186.22(a) liability. Attempted murder is a specific intent crime requiring a specific intent to kill. "[T]o be guilty of attempted murder as an aider and abettor, a person must give aid or encouragement with knowledge of the direct perpetrator's intent to kill and with the purpose of facilitating the direct perpetrator's accomplishment of the intended killing—which means that the person guilty of attempted murder as an aider and abettor must intend to kill. [Citation.]" (People v. Lee (2003) 31 Cal.4th 613, 623-624, italics added.) But by Hoang's account, on which the Attorney General relies, his fellow gang members at most intended to participate in an assault as a ritual for gang initiation. No evidence showed they harbored any intent to kill the victim. Indeed, in wrestling the gun away from Hoang, their actions showed only the opposite of intending the victim's death.
Because no evidence showed any gang member acted in concert or collectively with Hoang to attempt to kill the victim, as required for conviction under section 186.22(a), his conviction for that offense must be set aside. We need not reach Hoang's alternate contention that the trial court erred prejudicially in failing to instruct the jury that concerted or collective action was necessary.
III
DISPOSITION
The petition is granted and Hoang's conviction under section 186.22(a) is set aside on habeas corpus. The trial court is directed to amend the abstract of judgment accordingly and to forward an amended abstract of judgment to the Department of Corrections and Rehabilitation.
ARONSON, J. WE CONCUR: O'LEARY, P. J. THOMPSON, J.