Opinion
D073602
06-25-2018
In re KONESAVAHN DONALD SIRYPANGNO on Habeas Corpus.
George L. Schraer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD191585) Original proceeding on a petition for writ of habeas corpus. Relief granted. George L. Schraer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Konesavahn Donald Sirypangno of first degree murder (Pen. Code, § 187, subd. (a)), attempted murder (§§ 187, subd. (a), 664); and assault with a semiautomatic firearm (§ 245, subd. (b)), and found the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1).) The jury also found true that Sirypangno was a principal and a principal personally and intentionally discharged a firearm. (§ 12022.53, subd. (e)(1).) The trial court sentenced Sirypangno to prison for 75 years to life, plus an additional seven years.
Statutory references are to the Penal Code unless otherwise specified.
In February 12, 2012, this court affirmed Sirypangno's conviction. (People v. Sirypangno (Feb. 15, 2012, D055015) [nonpub. opn.].) The remittitur issued on May 2, 2012. On December 22, 2014, Sirypangno filed his first motion to recall the remittitur in light of People v. Chiu (2014) 59 Cal.4th 155 (Chiu). On December 31, 2014, this court denied the motion without prejudice to filing a petition for writ of habeas corpus in the superior court. On November 23, 2015, the superior court filed an order denying the petition.
Sirypangno filed a second motion to recall the remittitur on March 3, 2016. The People filed an opposition to the motion to which, Sirypangno filed a reply. Pursuant to People v. Mutch (1971) 4 Cal.3d 389 at page 396, we treated the motion as a petition for writ of habeas corpus. We issued an order denying the petition on May 24, 2016.
The California Supreme Court granted Sirypangno's petition for review, and ultimately transferred the matter back to this court with directions to vacate our previous decision and to reconsider the matter in light of In re Martinez (2017) 3 Cal.5th 1216 (Martinez). On March 6, 2018, we issued an order vacating the opinion and allowed the parties 30 days to file supplemental briefing. Both Sirypangno and the People filed supplemental briefs.
In Martinez, supra, 3 Cal.5th 1216, our high court concluded that, where the jury is given an instruction on the natural and probable consequences doctrine, a defendant's first degree murder conviction requires reversal unless the reviewing court determines beyond a reasonable doubt that the jury actually relied on a legally valid theory. (Id. at pp. 1226-1227.) After consideration of Martinez, we grant the requested relief. On the record before us, we cannot determine, beyond a reasonable doubt, that the jury relied on the direct aiding and abetting theory to convict Sirypangno of first degree murder.
FACTUAL BACKGROUND
We take the facts from our opinion regarding Sirypangno's direct appeal of his conviction. (See People v. Sirypangno, supra, D055015.)
"In 2005, Sirypangno and [David] Phommachanh were documented members of the Oriental Killer Boys (OKB) criminal street gang. Sirypangno's gang moniker was 'Reckless'; Phommachanh's moniker was 'Felon.' Other OKB members included Devin Giraud ('Striker') and Steven Joyce ('Turtle').
"On the evening of June 11, 2005, Phommachanh drove his out-of-town cousin, Danny Boualouang, and Judy Rattana to a friend's residence and later to a birthday party for a Cambodian girl. Rattana was Phommachanh's girlfriend and the mother of their daughter. Sirypangno, and Joyce and his girlfriend, Melissa Rasasack, drove to these locations in a separate vehicle. OKB member Giraud also was at the Cambodian girl's party. During that party, Rattana learned some of her girlfriends were going to a party in Mira Mesa and decided to accompany them. Rattana left the Cambodian girl's party with her girlfriends. The plan was for Phommachanh to first pick up their daughter at her grandparent's house, take the girl home, then pick up Rattana at the Mira Mesa party and bring her home.
"Rattana was charged as a defendant in this case, but entered a negotiated guilty plea to voluntary manslaughter and an admission she committed the crime for the benefit of a criminal street gang. As part of the plea agreement, Rattana agreed to testify truthfully at the trial.
"Giraud and Joyce also were charged as defendants in this case. Before trial, Joyce entered a negotiated guilty plea to voluntary manslaughter and an admission he committed the crime for the benefit of a criminal street gang. Giraud entered a negotiated guilty plea to being an accessory after the fact and admitted he committed the crime for the benefit of a criminal street gang."
"Before Phommachanh went to the Mira Mesa party, he received a call on his cell phone. Boualouang heard Phommachanh tell someone to bring a "strap," which is street jargon for a gun, because there might be 'some problems' at the party.
"At about 11 p.m., Phommachanh, Boualouang and Giraud went to the Mira Mesa party, which was in the backyard of a house at the corner of Lott Point and Santa Arminta Streets. Sirypangno, Joyce and Rasasack went in a separate vehicle.
"Access to the party was through a side gate to the backyard; admission cost $2.00. At first, Phommachanh and the others were not allowed to enter because there were too many people at the party. Phommachanh told the two young men who were manning the gate there would be trouble if he and his friends were not allowed inside. Rattana walked up to the young men at the gate and told them to let Phommachanh and the others in to avoid problems. Phommachanh, Boualouang, Giraud and Rasasack walked into the backyard without paying. Sirypangno and Joyce jumped over the backyard fence.
"There were a number of altercations at the party that evening, including at least one before Phommachanh, Sirypangno and the others arrived. While invited guest Hasib Farhan was standing near a young woman, he accidentally blew cigarette smoke in her face and almost burned her hair. An argument ensued, and Julie Nguyen, who was with the young woman, threatened to have Farhan jumped by OKB members if he did not apologize. Nguyen, who is known to her friends as 'Mai,' is an affiliate of OKB. After Phommachanh and the others entered the backyard, they were greeted by Mai and the young woman.
"At one point, some of the invited guests complained that they were uncomfortable because Phommachanh and his group were 'mad-dogging' or staring at people at the party. Farhan, who had played football in high school, and some of his friends who also played football approached Phommachanh and Sirypangno, who were standing next to each other, and told them to calm down or they would have to leave. Sirypangno pulled up his shirt, removed a black semiautomatic gun from his waistband, racked a round and pointed the gun at Farhan. Although Farhan did not hear Sirypangno say 'OKB' or 'this is OKB' and did not see Phommachanh flash gang signs, others who were present testified they did. Once the gun was displayed, Farhan's friends pushed him back into the house. Sirypangno and Phommachanh jumped over the back fence and onto a sidewalk. In the process, they knocked out one of the wood planks of the fence.
"Neither the people hosting the party nor the invited guests were gang members."
"One of the party hosts, Natasha Richardson, who had gone outside with Farhan, approached Mai, tapped her on the shoulder and asked Mai to have Sirypangno put the gun away. Mai told Richardson not to touch her, yelled 'OKB' and punched Richardson in the face.
"After Sirypangno and Phommachanh jumped the fence, Sirypangno stayed on the sidewalk behind the backyard of the party house, but Phommachanh did not. Sirypangno became angry when he overheard portions of a conversation between Tylor Thompson and Jeremy Waller, who were standing near the fence. Waller and Thompson were talking about a group of girls who had earlier been fighting and wondered where 'the bitches' had gone. From the other side of the fence, Sirypangno said: 'Who you guys calling a bitch?' According to Waller's testimony, he and Thompson replied they were not talking to Sirypangno, they did not know him and they did not call him a bitch. Sirypangno threw a piece of wood over the fence . . . at Waller and Thompson. When Waller and Thompson looked over the fence, Sirypangno pulled up his shirt and displayed the gun in his waistband.
"Thompson is the victim in the murder count."
"Kelly Anderson, who also was a friend of Thompson, gave a slightly different version of the over-the-fence exchange between Thompson and Sirypangno. Anderson testified that Sirypangno said: 'What the fuck did you say?' Thompson replied: 'I don't know what you're talking about, I don't even know you, you're tripping' and 'I don't know who the fuck you are.' Sirypangno said: 'You fucking said something, what the fuck did you say, don't be a pussy.' Thompson responded: 'Fuck you, suck my dick.' Anderson testified Sirypangno then said he would catch Thompson outside and threw a piece of wood at them. After the exchange, Anderson, Thompson, his girlfriend, Krystal Abiva, and Brandon Guaderrama, who went to the party with Thompson, remained in the backyard for between 15 and 20 minutes before leaving to allow tempers to calm down.
"Anderson is the victim in the attempted murder count."
"Elexander Noble, a long-time friend of Phommachanh, provided another version of the Sirypangno-Thompson exchange. Noble, who is not a gang member, testified that Thompson said something to the effect that 'these guys are not real gangsters[;] they're just bitches.' Upon hearing this, Sirypangno responded by saying: 'I'm a real fucking gangster[;] you'll see when you get out.' "
"Meanwhile, Phommachanh, Rattana and Boualouang decided to leave the party and go home. As the trio started walking to the car, Giraud called out Phommachanh's name and asked him to return. Phommachanh and Boualouang walked back to see what Giraud wanted while Rattana continued walking to the car. A visibly upset Sirypangno then approached Phommachanh and told him about his exchange with Thompson. According to Boualouang, Phommachanh told Sirypangno not to worry about it and tried to calm him down. While Sirypangno and Phommachanh were talking, Rattana drove up to the house. As Phommachanh stepped into the front passenger seat, Sirypangno handed him the gun. When Rattana asked Phommachanh about the gun, he replied he was just holding it. Phommachanh then put the gun inside the glove compartment. Rattana drove away and headed home.
"Within five minutes, Phommachanh received a cell phone call to come back and pick up Sirypangno. When they returned, Phommachanh put a bandana over his face, removed the gun from the glove compartment and stepped out of the car. Phommachanh waved the gun and shouted, 'who wants it'; he then joined Sirypangno, Joyce and Giraud, who were lined up in front of the house waiting for Thompson to emerge from the backyard. When Thompson came out, Sirypangno approached him, said 'you the fool that fucking told me to suck your dick,' and punched or tried to punch him the face. Guaderrama then tackled Sirypangno and Joyce joined the fight as well. Anderson tried to get Thompson to stop fighting and pull him away.
"Phommachanh pointed the gun at Thompson, who put his hands up and said 'no.' When the gun did not fire, Phommachanh cleared an unfired round from the chamber by racking back the slide of the gun. He then fired five shots, striking both Thompson and Anderson. Thompson and Anderson struggled to get up and run away, but collapsed.
"Phommachanh, Sirypangno, Joyce and Boualouang got into the car and Rattana drove away. The group discovered Joyce had been shot in the foot. Phommachanh gave the gun to Sirypangno, who told Rattana to drive to Giraud's house because they needed to hide 'the strap.' Rattana dropped off Phommachanh and Sirypangno at Giraud's house, where the gun was hidden in a rice bin. Rattana then drove home with Joyce and Boualouang. Phommachanh phoned Rattana and told her to get rid of Boualouang's clothes, which had blood on it from Joyce's wound. When Phommachanh returned home, he tried to clean the blood from his car. He also told Rattana and Boualouang to say he was at home that night if anyone asked. Phommachanh also phoned Noble (see fn. 7, ante), who had witnessed the shooting, and told him not to tell anyone what had happened.
"During a search of Giraud's residence, police located the firearm, which was a .45 caliber semiautomatic handgun. Ballistic tests showed the gun fired the shell casings that were found at the crime scene. Testing of the DNA collected from the gun was a mixture of three possible DNA contributors: Phommachanh, Sirypangno and a third person."
"Thompson bled to death. He had two gunshot wounds to the left side of his body that could have been caused by the same bullet. One wound was to the left arm; the other wound was to his left flank. The bullet that entered the left flank severed the iliac artery and vein.
"Anderson had gunshot wounds to her abdomen and right hip. Anderson had surgery to remove her appendix, which had burst, and half of her colon. She was in the hospital for five days.
"Detective Daniel Hatfield of the San Diego Police Department's gang unit testified that at the time of the shooting, OKB was an Asian criminal street gang with 106 documented gang members. Hatfield said OKB engaged in a pattern of criminal gang activity and the gang's primary activities were serious assaults, burglaries, automobile thefts and murders.
"Hatfield also discussed gangs in general and explained that reputation and respect are of upmost importance to gangs because they enable a gang to instill fear among rival gangs and people who live in the community. People who live in the community often are reluctant to testify against gang members because they fear retaliation from the gang. Gang members gain respect by committing violent crimes and by backing up their fellow gang members in fights.
"Hatfield also testified that disrespect to a gang member is considered disrespect to the entire gang. Such disrespect can take many forms, including a person looking at a gang member in the 'wrong way.' Gang fights easily escalate into violence. When gang members are involved in crimes, including murder, the gang's reputation for violence increases and the community's fear of and intimidation by the gang increases."
DISCUSSION
Sirypangno was convicted of first degree murder, attempted murder and assault with a semiautomatic firearm as an aider and abettor. "Aider-abettor liability exists when a person who does not directly commit a crime assists the direct perpetrator by aid or encouragement, with knowledge of the perpetrator's criminal intent and with the intent to help him carry out the offense." (People v. Miranda (2011) 192 Cal.App.4th 398, 407.) In considering whether one is an aider and abettor, relevant factors include 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.)
Aider and abettor liability can also be found under the natural and probable consequences doctrine, which provides "an aider and abettor is guilty of not only the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the actual perpetrator. The defendant's knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. [Citation.] The elements of aider and abettor liability under this theory are: the defendant acted with (1) knowledge of the unlawful purpose of the perpetrator, and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) the defendant 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." (People v. Miranda, supra, 192 Cal.App.4th at pp. 407-408.)
At trial, the jury was instructed on general aiding and abetting theory and on the natural and probable consequences doctrine with the following standard jury instructions: CALCRIM Nos. 400, 401, and 403. CALCRIM No. 400 presents the general principles of aiding and abetting liability. CALCRIM No. 401 sets forth the elements of aiding and abetting when the intended crime is the charged crime. CALCRIM No. 403 is given when the prosecution is asserting aiding and abetting liability under the natural and probable consequences doctrine and only the nontarget offense is charged.
CALCRIM No. 403 as given by the trial court read in pertinent part: "To prove that defendant Konesavahn Donald Sirypangno is guilty of Counts 1, 2 or 3 by a Natural and Probable Consequence Theory, the People must prove that: [¶] 1. Defendant Konesavahn Donald Sirypangno is guilty of Gang Motivated Battery; [¶] 2. During the commission of the Gang Motivated Battery, a co-participant in that crime committed the crimes of Murder, Attempted Murder, and Assault with a Semi-Automatic Firearm; and [¶] 3. Under all of the circumstances, a reasonable person in defendant Sirypangno's position would have known that the commission of any or all of the crimes charged was a natural and probable consequence of the commission of the Gang Motivated Battery. [¶] A co-participant 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 crimes charged were committed for a reason independent of the common plan to commit the Gang Motivated Battery, then the commission of the crimes charged were not a natural and probable consequence of that crime." (Italics added.)
Sirypangno argues the trial court committed error under Chiu, supra, 59 Cal.4th 155, because the trial court instructed the jury that it could find him guilty of murder on two theories: as aider and abettor of murder and as aider and abettor to gang motivated battery where murder, among other crimes, was a natural and probable consequence of the target crime. Based on this error, Sirypangno asserts that we cannot, on the record before us, rule out a reasonable probability that the jury relied on the invalid natural and probable consequences doctrine in convicting him of first degree murder. (See Martinez, supra, 3 Cal.5th at p. 1226.) The People counter there was no Chiu error because the jury was instructed differently than the jury in Chiu, and if there was any error, it was harmless. Sirypangno has the better argument.
A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime." ' [Citations.] 'Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault.' " (Chiu, supra, 59 Cal.4th at p. 161.)
"In the context of murder, the natural and probable consequences doctrine serves the legitimate public policy concern of deterring aiders and abettors from aiding or encouraging the commission of offenses that would naturally, probably, and foreseeably result in an unlawful killing. A primary rationale for punishing such aiders and abettors—to deter them from aiding or encouraging the commission of offenses—is served by holding them culpable for the perpetrator's commission of the nontarget offense of second degree murder." (Chiu, supra, 59 Cal.4th at p. 165.) "[T]his same public policy concern loses its force in the context of a defendant's liability as an aider and abettor of a first degree premeditated murder" because the required mental state of willfulness, premeditation, and deliberation is uniquely subjective and personal. (Id. at p. 166.) "Accordingly, we hold that punishment for second degree murder is commensurate with a defendant's culpability for aiding and abetting a target crime that would naturally, probably, and foreseeably result in a murder under the natural and probable consequences doctrine. We further hold that where the direct perpetrator is guilty of first degree premeditated murder, the legitimate public policy considerations of deterrence and culpability would not be served by allowing a defendant to be convicted of that greater offense under the natural and probable consequences doctrine." (Ibid.)
"Aiders and abettors may still be convicted of first degree premeditated murder based on direct aiding and abetting principles. [Citation.] Under those principles, the prosecution must show that the defendant aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission." (Chiu, supra, 59 Cal.4th at pp. 166-167.)
"When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground. [Citations.] Defendant's first degree murder conviction must be reversed unless we conclude beyond a reasonable doubt that the jury based its verdict on the legally valid theory. . . ." (Chiu, supra, 59 Cal.4th at p. 167.)
The People contend Chiu is distinguishable because the jury instructions given in the instant matter were different from those given in Chiu. Specifically, the People emphasize that the court here instructed the jury under CALCRIM No. 521 (First Degree Murder), and in doing so, explained "[t]he defendant is guilty of first degree murder if the People have proved he acted willfully, deliberately, and with premeditation." In contrast, the People note that the instructions for CALCRIM No. 521 in Chiu referred to the "perpetrator," (see Chiu, supra, 59 Cal.4th at pp. 160-161) which could mean either the defendant or his accomplice.
Although we acknowledge the difference in instructions between the instant matter and Chiu, on the record before us, this variation is not sufficient to distinguish Chiu, supra, 59 Cal.4th 155. Further, as Sirypangno points out, in Chiu, the defendant was tried alone in his second trial, and because the prosecutor's theory was that he was an aider and abettor rather than the actual perpetrator of the murder, it would have been confusing to the jury to use the word "defendant" when describing the participant who had to act willfully, deliberately, and with premeditation. That participant, the shooter, was not a defendant at the second trial. Thus, to avoid confusion, the trial court instructed the jury under CALCRIM No. 521 (First Degree Murder), but referred to "perpetrator" rather than "defendant" so the jury would understand that the mental states of willfulness, deliberation, and premeditation referred to the actual perpetrator of the murder and did not refer to the defendant.
In contrast, here, Sirypangno was jointly tried with Phommachanh, the shooter. Because of this fact, there was no need to refer to a third party "perpetrator" who was not a defendant at the trial. By using the word "defendant" in CALCRIM No. 521, the jury would understand that CALCRIM No. 521 referred to the state of mind of the defendant (Phommachanh) who shot the victim not to Sirypangno, the aider and abettor.
In short, we reject the People's attempt to distinguish Chiu, supra, 59 Cal.4th 155. Therefore, we find the court erred under Chiu by instructing the jury that it could convict Sirypangno for first degree murder on the natural and probable consequences doctrine. We thus must address whether the error was prejudicial.
In Martinez, supra, 3 Cal.5th at page 1218, the court held "that on a petition for writ of habeas corpus, as on direct appeal, Chiu error requires reversal unless the reviewing court concludes beyond a reasonable doubt that the jury actually relied on a legally valid theory in convicting the defendant of first degree murder." Accordingly, we apply the standard of review set forth in Martinez to Sirypangno's petition here.
Like the conclusion it reached in Chiu, supra, 59 Cal.4th 155, in Martinez, our high court could not, on the record presented, "rule out a reasonable possibility that the jury relied on the invalid natural and probable consequences theory in convicting Martinez of first degree murder." (Martinez, supra, 3 Cal.5th at p. 1226.) Reasonable doubt was raised by the fact that the prosecutor argued the natural and probable consequences theory to the jury at length during closing argument and rebuttal, and that no other aspects of the verdict indicated the jury had relied on a valid legal theory. (Id. at pp. 1226-1227.)
An instruction on an invalid theory may be found harmless when "other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary" under a legally valid theory. (People v. Chun (2009) 45 Cal.4th 1172, 1205.) The People do not point to anything in the verdict showing beyond a reasonable doubt that the jury made the findings necessary to convict Sirypangno as a direct aider and abettor. Instead, they urge us to review the evidence in the record and assert, if we do so, we will conclude beyond a reasonable doubt that the jury relied on the legally valid theory that Sirypangno directly aided and abetted Phommachanh and was convicted of first degree murder on that theory alone. However, the evidence in this case does not compel the conclusion that the jury must have relied on a direct aider and abettor theory.
The evidence shows that Sirypangno got into a verbal altercation with Thompson, who had questioned Sirypangno's gang status. Sirypangno left the party in an agitated state and gave Phommachanh the .45 caliber semiautomatic handgun. There was at least a tacit agreement that Phommachanh would return to the party to provide backup for Sirypangno. Sirypangno then positioned himself to encounter Thompson when he emerged from the party.
Phommachanh received a cell phone call to come back and pick up Sirypangno. When he returned, Phommachanh put a bandana over his face, removed the gun from the glove compartment, and stepped out of the car. Phommachanh then waved the gun and shouted, "who wants it" and joined Sirypangno, Joyce, and Giraud, who were lined up in front of the house waiting for Thompson to emerge from the party. When Thompson came up, Sirypangno identified him and either punched or tried to punch him. Phommachanh subsequently shot Thompson multiple times.
Although it may be correct that this evidence would be sufficient to support a conviction under a direct aiding and abetting theory, the evidence also supports the theory that the murder was a natural and probable consequence of gang motivated battery. Further, the fact that Sirypangno not only identified Thompson, but then engaged him in a fistfight somewhat undermines the People's argument that Sirypangno knew Phommachanh intended to shoot Thompson and acted with the intent or purpose to aid Phommachanh in that goal. Indeed, if the plan was to have Phommachanh simply shoot Thompson, it begs the question why Sirypangno started fighting with Thompson first. The aim of having Phommachanh shoot Thompson would have been more easily achieved had Sirypangno identified Thompson to Phommachanh and then stood out of the way while Phommachanh shot him.
In addition, Sirypangno's attack of Thompson raises a reasonable doubt in this court regarding what Sirypangno believed Phommachanh would do and when he would do it. As we noted above, the evidence shows a tacit agreement that Phommachanh would return to the party, after Sirypangno gave him his gun, to provide backup. However, what is not entirely clear from the record is whether Sirypangno and Phommachanh agreed on what the backup would entail.
For example, during closing argument, the prosecutor argued that the five feet five inches tall, 130 pound Sirypangno attacked the over six feet tall, and over 200 pound Thompson "[b]ecause he had back-up." The prosecutor explained: "The only reason [Sirypangno] had the confidence or the courage to go up to Tylor Thompson in the first place is because he knew that David Phommachanh was backing him up with a .45 semi-automatic firearm." So, the prosecutor argued that Sirypangno challenged Thompson because Phommachanh had a gun. But, it is not clear from the evidence that Sirypangno assailed Thompson knowing and intending that Phommachanh would shoot him.
The evidence shows that earlier in the evening, while at the party, Sirypangno lifted his shirt to show Thompson that he had a gun. Additionally, after he had an argument with another party goer, Sirypangno pointed the gun at the individual, but did not shoot him. Perhaps, Sirypangno believed that Phommachanh would act similarly in backing him up when he fought Thompson. It is reasonably plausible that Sirypangno thought Phommachanh would point the gun at Thompson to scare him, like Sirypangno had done to another individual earlier at the party.
The People also argue any error was harmless here because of the gang nature of this crime. The jury found true that Sirypangno aided and abetted the commission of the first degree murder for the benefit of, at the direction of, and in association with a criminal street gang. The People emphasize that Thompson insulted Sirypangno and his gang. And because of this insult, the People argue that "Phommachanh committed first degree premeditated murder and Sirypangno shared his intent to commit the crime." To this end, the People focus on Detective Hatfield's testimony on the importance of respect in Asian gang culture, how disrespect will not be tolerated, a gang member will retaliate to any disrespect, and how gang members are expected to support each other. He also explained that it would not be unusual for a gang member to get into a physical fight with someone who had verbally disrespected him, even if the person had no gang ties, and for the incident to end in gunfire and death.
We agree with the People that Detective Hatfield's testimony mirrored what occurred on the night of Thompson's murder. Nevertheless, this evidence does not establish that the jury found Sirypangno guilty of first degree murder only on a direct aiding and abetting theory. Sirypangno retaliated against Thompson for his disrespect by punching or attempting to punch him. Phommachanh then shot Thompson. According to Hatfield, such a result would be expected after a gang member was insulted. However, the result does not prove that Sirypangno shared the same intent as Phommachanh. In fact, Hatfield's testimony supports the natural and probable consequence theory more so than the direct aiding and abetting theory of guilt. An insult was met with a physical altercation that escalated into gunfire and death.
Also, our conclusion here is buttressed by the prosecutor's closing argument. The prosecutor explained to the jury it could convict Sirypangno of murder based on two theories: direct aiding and abetting or the natural and probable consequences doctrine. She further informed the jurors that they did not have to agree on which theory to convict Sirypangno. And she told the jury that the prosecution's "position is that he is guilty . . . on both theories." Further, later in the closing argument, the prosecutor explained the natural and probable consequences and described why Sirypangno was guilty under that theory. Then after discussing the natural and probable consequences doctrine, the prosecutor emphasized: "Defendant Sirypangno is guilty under both theories of aiding and abetting and the natural and probable consequence theory, of first degree murder . . . ."
In summary, we conclude the People have not shown beyond a reasonable doubt that the jury relied on a legally valid theory in convicting Sirypangno of first degree murder.
DISPOSITION
Sirypangno's conviction for first degree murder is vacated. If the People do not bring Sirypangno to retrial on the murder count within the time set forth in section 1382 (i.e., 60 days after the filing of the remittitur unless good cause is shown for a different period or appellants waive the 60-day requirement), the superior court shall proceed as if the remittitur constituted a modification of judgment to reflect a conviction for second degree murder. No other portion of the judgment against Sirypangno is affected. The court will resentence Sirypangno accordingly.
HUFFMAN, Acting P. J. WE CONCUR: NARES, J. AARON, J.