Opinion
A147159
11-29-2017
THE PEOPLE, Plaintiff and Respondent, v. SAUN OEURN et al., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C171030A, C171030B)
In People v. Concha (2009) 47 Cal.4th 653, 666 (Concha I), our Supreme Court held that a jury considering a charge of murder under a provocative act theory must be instructed that "for a defendant to be found guilty of first degree murder, he personally had to have acted willfully, deliberately and with premeditation." In this case, the trial court gave an instruction that allowed the jury to return a first degree murder verdict based on a finding that appellants Saun Oeurn and Phon Mey had the specific intent to commit a shooting into an inhabited dwelling house. Because this mental state was not the equivalent of premeditation and deliberation, appellants' convictions for first degree murder must be conditionally reduced to murder in the second degree.
BACKGROUND
The Asian Streetwalkers (ASW) and Oak Town Crips (OTC) are rival gangs in Oakland whose members have Cambodian and southeast Asian ancestry. Appellants Oeurn and Mey were members or associates of ASW, as were Scott Moeun, Danny Vo, Aaron Kheav, Jordan Chhit and Alex Thum.
On January 28, 2012, the Neak family hosted a birthday party at 1707 20th Avenue, which was attended by members and associates of OTC. The party lasted for several hours, but most of the guests left by midnight. At some point in the evening, there was a shooting nearby.
Von Neak was among the partygoers. When he arrived that evening, he locked his .40-caliber semiautomatic pistol in a toolbox inside the garage. After the party broke up, Von Neak cleaned the garage for about half an hour before retrieving the pistol from the toolbox. He put it in a holster on his hip and put the magazine for the weapon in his left pants pocket.
Meanwhile, ASW members had been socializing at Scott Mouen's house on 69th Avenue in Oakland. They heard about the shooting near the Neak party and believed members of OTC had attacked members of ASW. Oeurn, Mey, Moeun, Vo, Kheav, Chhit and Thum met at the home of Thum's girlfriend, who lived a few blocks away from the Neak house. Mey was armed with a 7.62 x 39 millimeter semiautomatic rifle with an extended banana clip; Oeurn, Moeun, Vo, Kheav and Chhit were all armed with semiautomatic pistols.
Oeurn worked for a package delivery company and had the use of a van. He drove the others (save for Thum) down East 19th Street and dropped them off around the corner from the Neak house. Oeurn remained inside the van while the others got out and walked down 20th Avenue, where they stopped behind a pickup truck parked across the street from the Neak house.
Von Neak noticed the ASW group staring at the house from across the street and saw that Mey was holding a rifle in the "low-ready" position. Believing the group to be a threat, Von assumed a defensive position and removed his pistol from its holster, keeping it pointed down. He removed the magazine from his pocket and prepared to load his gun.
An ASW member standing next to Mey stepped forward and fired a shot at Von. Von finished loading his weapon and moved toward the attackers as the group fired several more shots that shattered the windows of the cars near Von. Von was struck in the chest, but managed to fire all ten of his own bullets before he collapsed, focusing on Mey as he did so. Von was taken to the hospital for treatment and survived his gunshot wound.
Mey, Moeun, Vo, Kheav and Chhit all fired their weapons during the gunfight; Mey fired 35 to 38 rounds from his rifle and the others fired more than 50 additional rounds. Lana Turn, an associate of OTC, was sitting on a couch inside the Neak house when her head was grazed by a bullet.
A group from the Neak house returned fire with semiautomatic weapons and one shotgun, fatally wounding Chhit of the ASW group. A firearms expert determined that the expended cases and shells came from a minimum of 11 different weapons.
Oeurn and Mey were tried before a jury and convicted of: (1) the first degree murder of Jordan Chhit under a provocative act murder theory (Pen. Code, § 187, subd. (a)); (2) the unpremeditated attempted murder of Von Neak (§§ 664/187, subdv. (a)); and (3) shooting at an inhabited dwelling (§ 246). The jury found that Mey had personally used and intentionally discharged a firearm, causing great bodily injury and death (§§ 12022.5, subd. (a), 12022.53, subds. (b)-(d)). Appellants were acquitted of the attempted murder of Lana Turn, and the court granted a motion to acquit them of the attempted murder of one Saravay Phournsopha, who was also a member of OTC.
Further statutory references are to the Penal Code.
Scott Moeun and Danny Vo were charged as codefendants, but the jury could not reach verdicts and the court declared mistrials as to the charges against them. Aaron Kheav entered a plea in exchange for his agreement to testify at the trial of the others, but he ultimately refused to do so.
The court sentenced appellant Oeurn to 25 years to life for the first degree murder count and a five-year concurrent term for the attempted murder count, with the sentence for shooting at an inhabited dwelling stayed under section 654. Mey was sentenced to 50 years to life plus ten years and eight months, consisting of 25 years to life for the murder count, a consecutive nine-year term for the attempted murder count enhanced by 25 years to life for the firearm enhancement under section 12022.53, subdivision (d), plus a consecutive term of one year and eight months for the violation of section 246.
DISCUSSION
I. Provocative Act Murder
Appellants did not kill their accomplice Jordan Chhit, but were convicted of his murder under the provocative act doctrine. They contend the conviction must be reduced from first to second degree murder because the jury instructions did not require a determination that they personally acted with premeditation and deliberation when they committed the acts that caused Chhit's death. Appellants contend the court gave a version of CALJIC No. 8.12 that set forth two legally incorrect theories of first degree provocative act murder, advising the jury that such a conviction was appropriate if (1) any defendant acted willfully, deliberately and with premeditation; and (2) any defendant intended to commit a shooting into an inhabited dwelling under section 246. We agree the instruction was erroneous.
A. General Principles
Murder is the unlawful killing of a person with malice aforethought. (§ 187.) Malice may be express or implied. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.) Malice is express "when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature." (§ 188.) It is implied when the defendant performs " 'an act, the natural consequences of which are dangerous to life' " and does so "know[ing] that his conduct endangers the life of another and . . . acts with a conscious disregard for [human] life." (People v. Sarun Chun (2009) 45 Cal.4th 1172, 1181.)
"Murder includes both actus reus and mens rea elements. To satisfy the actus reus element of murder, an act of either the defendant or an accomplice must be the proximate cause of death. [Citations.] . . . . To satisfy the mens rea element of murder, the defendant must personally act with malice aforethought." (Concha I, supra, 47 Cal.4th at p. 660.) Under section 189, murder is of the first degree if it is "willful, deliberate, and premeditated" or is perpetrated by other specified means (poison, lying in wait, torture, discharging a firearm from a motor vehicle with the intent to inflict death, use of specified weapons, destructive devices, explosives or ammunition, or in the perpetration of certain felonies). (Ibid.) Other types of murder are of the second degree. (Ibid.) "Once liability for murder 'is otherwise established, section 189 may be invoked to determine its degree.' " (Id at p. 661.)
"Under the provocative act doctrine, when the perpetrator of a crime maliciously commits an act that is likely to result in death, and the victim kills in reasonable response to that act, the perpetrator is guilty of murder." (People v. Gonzalez (2012) 54 Cal.4th 643, 655 (Gonzalez).) The "classic" scenario for a provocative act murder is when a perpetrator of an underlying crime instigates a gun battle, and a peace officer or crime victim responds with lethal force, killing the perpetrator's accomplice or an innocent bystander. (Ibid.) If the underlying crime that provokes the killing does not itself require an intent to kill, the provocative conduct must be an act beyond that necessary to simply commit the crime; when, however, the crime requires an intent to kill (e.g., attempted murder), the conduct necessary to commit the crime is itself sufficient to constitute the provocative act. (In re Aurelio R. (1985) 167 Cal.App.3d 52, 59-60.)
"Provocative act murder has both a physical and a mental element which the prosecution must prove beyond a reasonable doubt. [Citation.] The physical element is satisfied when the defendant, or a surviving accomplice in the underlying crime, commits an act, the natural and probable consequence of which is the use of deadly force by a third party. . . .[¶] With respect to the mental element of provocative act murder, a defendant cannot be vicariously liable; he must personally possess the requisite mental state of malice aforethought when he either causes the death through his provocative act or aids and abets in the underlying crime the provocateur who causes the death." (People v. Mejia (2012) 211 Cal.App.4th 586, 603 (Mejia).) "Provocative act murder may be either of the first or the second degree. [Citations.] When the defendant acts with express malice alone or with implied malice, provocative act murder is of the second degree. When the defendant acts with express malice and [the killing] is also willful, deliberate, and premeditated, [the crime] is murder of the first degree. [Citations.] Again, for purposes of murder, a defendant cannot be vicariously liable for the mens rea of his accomplice in the underlying crime. [Citation.] The defendant must personally act with the state of mind required for either first or second degree murder." (Id at p. 604)
Thus, a defendant who is prosecuted under a provocative act theory may be guilty of either first or second degree murder, depending on his or her personal mental state. "Where the individual defendant personally intends to kill and acts with that intent willfully, deliberately, and with premeditation, the defendant may be liable for first degree murder for each unlawful killing proximately caused by his or her acts, including provocative act murder. Where malice is implied from the defendant's conduct or where the defendant did not personally act willfully, deliberately, and with premeditation, the defendant cannot be held liable for first degree murder." (Concha I, supra, 47 Cal.4th at p. 663-664.)
B. Instructions Given
The jury in this case was instructed with the following version of CALJIC No. 8.12 regarding provocative act murder:
"A homicide committed during the commission of a crime by a person who is not a perpetrator of that crime, in response to an intentional provocative act by a perpetrator of the crime other than the deceased [perpetrator], is considered in law to be an unlawful killing by the surviving perpetrator[s] of the crime.
"If the underlying crime which provokes the killing does not require an intent to kill, the provocative act must be an act beyond that necessary simply to commit the crime. Where the underlying crime requires an intent to kill, however, conduct necessary to commit the crime is sufficient to constitute the provocative act.
"An aider and abettor to the underlying crime is equally liable for a provocative act committed by a surviving accomplice.
"An 'intentional provocative act' is defined as follows:
"1. The act was intentionally committed;
"2. The natural consequences of the act were dangerous to human life; and
"3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for human life.
"In order to prove this crime, each of the following elements must be proved:
"1. The crime[s] of Attempted Murder and/or Shooting into an Inhabited Dwelling was committed;
"2. [During the commission of the crime, a [surviving perpetrator] [the defendant] also committed an intentional provocative act] [or] [The crime committed included conduct comprising an intentional provocative act];
"3. [Another person not a perpetrator of the crime of Attempted Murder and/or Shooting into an Inhabited Dwelling] in response to the provocative act, killed [a perpetrator of the crime];
"4. The [defendant's] [surviving perpetrator's] commission of the intentional provocative act was a cause of the death of the victim, Jordan Chhit.
"Murder which occurs during the commission of the underlying crime of attempted murder is murder of the first degree if a defendant personally acted willfully, deliberately, and with premeditation during the attempted murder.
"[The word " 'willfully' " means intentionally. The word 'deliberately' relates to how a person thinks, and means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. The word 'premeditation' relates to when a person thinks and means considered beforehand. One premeditates by deliberating before taking action.]
"Murder, which occurs during the commission or attempt to commit the crime of murder, when there was in the mind of the perpetrator[s] of that crime the specific intent to commit a shooting into an inhabited dwelling, is murder of the first degree. . . .
"[Murder which is not of the first degree is murder of the second degree.]" (Italics added.)
C. Analysis
The version of CALJIC No. 8.12 given in this case advised the jury it could convict appellants of first degree murder if it determined they had committed the underlying offense of attempted murder or shooting into an inhabited dwelling, and could further determine that murder to be of the first degree if appellants had "personally acted willfully, deliberately, and with premeditation during the attempted murder" or had acted with "the specific intent to commit a shooting into an inhabited dwelling." As the Attorney General concedes, the latter portion of the instruction was error. A defendant may only be convicted of first degree murder under a provocative act theory if he personally harbored the mental state of premeditation and deliberation. The intent to shoot into an inhabited dwelling, which does not even necessarily encompass an intent to kill, is not the equivalent of premeditation and deliberation.
Because the instruction allowed the jury to return a verdict of first degree murder without making the requisite finding that each appellant personally acted willfully, deliberately and with premeditation, it was error under Concha I, supra, 47 Cal.4th at pages 663-664. We therefore consider whether the error was prejudicial.
We reject the Attorney General's suggestion that the claim was somehow forfeited. An instructional error regarding the elements of an offense is not forfeited by counsel's failure to object to the precise language of the instruction. (People v. Mason (2013) 218 Cal.App.4th 818, 823; § 1259.)
A jury instruction that improperly omits an element of an offense is subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 36, which asks " 'whether it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." ' " (Gonzalez, supra, 54 Cal.4th at p. 663, quoting Neder v. United States (1999) 527 U.S. 1, 15.) In such cases, the harmless-error inquiry is, essentially, "[i]s it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?" (Id. at p. 18.)
In this case, we cannot say beyond a reasonable doubt that a properly instructed jury would have found each appellant guilty of first degree provocative act murder. First, although the jury convicted appellants of the attempted murder of Von Neak, it was not asked to determine whether that crime was premeditated and deliberate. The jury therefore made no finding regarding premeditation and deliberation that could be extended to the murder verdict. Second, the evidence regarding deliberation and premeditation was disputed. Although the prosecution argued the ASW group had armed itself and traveled to the Neak house as part of a plan to kill its occupants, the defense argued the group did not begin shooting until Von Neak made a move to use his own weapon, and a reasonable trier of fact could have concluded that while the ASW group went to the Neak house intending to fire some shots, its members did not premeditate a killing. Third, the jury sent the court a note during deliberations asking, "Does the clause in CALJIC 8.12 regarding '. . . specific intent to commit a shooting into an inhabited dwelling' have a different application than of 'willful' discharge under 9.03. In other words, does the perpetrator have to have the intent to shoot the dwelling versus 9.03 where they do not?" This suggests the jury focused on shooting at an inhabited dwelling as the basis for its first degree murder verdict.
This case is unlike Gonzalez, supra, 54 Cal.4th 643, in which the court held harmless the failure to instruct that a defendant must have personally acted willfully, deliberately and with premeditation to be convicted of first degree murder under a provocative act theory. There, the evidence was uncontradicted that the defendant "personally premeditated and deliberated the attempted murder of [the target victim]," going so far as to cock the loaded gun so it was ready to fire before handing it back to her cohort for use against the target victim. (Id. at p. 663.) Indeed, the jury convicted the Gonzalez defendant of the attempted premeditated and deliberate murder of the target victim in addition to the provocative act murder of the cohort, whom the target victim shot dead during the altercation. The court in Gonzalez reasonably concluded that a jury which had found the defendant guilty of attempted premeditated and deliberate murder would not have failed to find the provocative act murder was similarly deliberate and premeditated, but we cannot say beyond a reasonable doubt that the jury in this case, which returned no such finding with respect to the attempted murder count, would have reached the same result. Moreover, while the instructions in Gonzalez gave the incorrect impression that the defendant could be found to have acted with premeditation and deliberation if either the defendant or an accomplice harbored that mental state (id at p. 662), the instructions in this this case completely eliminated the need for the jury to find premeditation and deliberation if it instead determined appellants had acted with the intent to discharge a firearm into an inhabited dwelling.
The case is also distinguishable from People v. Concha (2010) 182 Cal.App.4th 1072 (Concha II), in which the court of appeal found harmless the instructional error identified in Concha I, namely, the failure to instruct that a defendant must personally act with deliberation and premeditation to be convicted of first degree provocative act murder: "[B]y returning guilty verdicts on the attempted murder counts, the jury found that each defendant either intended to kill [the target victim] or shared in the other's intent to kill [the target victim]. The jury also found that each defendant personally committed a provocative act during the attempted murder of [the target victim] and that [one defendant] personally used a deadly weapon—a beer bottle—during the attempted murder. And, the jury found that the attempted murder was committed with premeditation and deliberation, meaning at a minimum that the jury believed that at least one of [the target victim's] assailants had the requisite mens rea for first degree murder." (Id. at pp. 1089-1090.) Here, the erroneous instruction allowed the jury to return a first degree murder verdict based on a determination that appellants intended to discharge a firearm into an inhabited dwelling. The jury did not necessarily determine that any defendant acted with the requisite mental state for first degree murder.
Finally, the case is unlike People v. Mejia, supra, 211 Cal.App.4th at page 617, in which the court upheld a version of CALJIC No. 8.12 that stated, " 'Murder which occurs during the commission of the underlying crime of attempted murder is murder of the first degree if a defendant acted willfully, deliberately, and with premeditation during the attempted murder.' " The Mejia court rejected a claim that the instruction ran afoul of Concha I because it referred to "a defendant" rather than "the defendant, "allowed the jury to convict all of them so long as at least any of them had the requisite mens rea," and additionally found any error to be harmless given the overwhelming evidence of premeditation. (Id. at p. 618.) Here, of course, the version of CALJIC No. 8.12 did not simply fail to require that premeditation and deliberation be personal to each defendant; rather, it allowed a verdict of first degree murder to be returned without any finding of premeditation at all.
Because CALJIC No. 8.12 did not require a finding that appellants premeditated and deliberated the killing, much less that they had done so personally, the first degree murder verdict cannot stand. In light of our conclusion that the instruction was defective in allowing a first degree murder verdict to be based on a finding that appellants discharged a firearm into an inhabited dwelling, it is not necessary to resolve whether the instruction was additionally deficient because it failed to explicitly require that each appellant personally deliberate and premeditate.
II. CALJIC No. 3.00
Appellant Mey argues the jury instructions were erroneous because they applied the principle of "independent mens rea" only to aiders and abettors rather than to all principals or participants in the crime. He argues the error requires a reversal of all his convictions and not simply a reduction of the murder charge from first degree to second. We disagree.
Mey's challenge arises from CALJIC No. 3.00, which provided, "Persons who are involved in [committing] [or] [attempting] to commit a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation is guilty of a crime. Principals include: [¶] 1. Those who directly and actively [commit] [or] [attempt to commit] the act constituting the crime, or [¶] 2. Those who aid and abet the [commission] [or] [attempted commission] of the crime. [¶] When the crime charged is [either], [187 (a), Murder or 187 (a)/664, Attempted Murder], the aider and abettor's guilt is determined by the combined acts of all the participants as well as that person's own mental state. If the aider and abettor's mental state is more culpable than that of the actual perpetrator, that person's guilt may be greater than that of the actual perpetrator. Similarly, the aider and abettor's guilt may be less than of the perpetrator's, if the aider and abettor has a less culpable mental state."
CALJIC No. 3.00 was modified to its current form after our Supreme Court issued its decision in People v. McCoy (2001) 25 Cal.4th 1111, recognizing that an aider and abettor's culpability might not always be the same as that of the direct perpetrator: "The statement that an aider and abettor may not be guilty of a greater offense than the direct perpetrator, although sometimes true in individual cases, is not universally correct. Aider and abettor liability is premised on the combined acts of all the principals, but on the aider and abettor's own mens rea. If the mens rea of the aider and abettor is more culpable than the actual perpetrator's, the aider and abettor may be guilty of a more serious crime than the actual perpetrator." (Id. at p. 1120; see People v. Nunez and Satele (2013) 57 Cal.4th 1, 43, fn. 8.) Similarly, "an aider and abettor's guilt may also be less than the perpetrator's, if the aider and abettor has a less culpable mental state." (People v. Samaniego (2009) 172 Cal.App.4th 1148 (Samaniego), 1164; see People v. Nero (2010) 181 Cal.App.4th 504, 508-509 (Nero).) Accordingly, it may be misleading in some cases to instruct a jury that a principal and an aider and abettor are "equally guilty" of an offense. (Mejia, supra, 211 Cal.App.4th at p. 624.)
CALJIC No. 3.00 was not misleading or prejudicial. The version of the instruction given in this case accurately stated that an aider and abettor's culpability was predicated on the defendant's own mental state, and it did not erroneously suggest appellants were "equally guilty" simply by virtue of their status as aiders and abettors. The instruction therefore did not suffer from the same infirmity as a prior version of CALJIC No. 3.00, which case law found to be misleading based on language stating a person was "equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it." (E.g., Nero, supra, 181 Cal.App.4th at pp. 516-517; People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 432; Samaniego, supra, 172 Cal.App.4th at pp. 1163.)
Mey argues CALJIC No. 3.00 did not make it clear that the principle of "independent mens rea" applied to direct perpetrators, and suggests the instruction should have been modified to specifically state that the culpability for murder and attempted murder should be determined based on the independent mental states of each principal in the crime, regardless of whether they acted as direct perpetrators or aiders and abettors. Because Mey did not request this clarification, he has forfeited the claim for purposes of appeal. " 'A trial court has no sua sponte duty to revise or improve upon an accurate statement of law without a request from counsel [citation], and failure to request clarification of an otherwise correct instruction forfeits the claim of error for purposes of appeal.' " (People v. Whalen (2013) 56 Cal.4th 1, 81-82, disapporoved on other grounds in People v. Romero and Self (2015) 62 Cal.4th 1, 44, fn. 17.)
We would also reject the claim on the merits, because there is no reasonable likelihood the jury construed CALJIC No. 3.00 to mean that Mey's guilt could be predicated upon the mental states of other participants in the crime. (See Estelle v. McGuire (1991) 502 U.S. 62, 72-73.) A jury should be instructed that mens rea is personal because absent such an instruction, the jury might infer that an aider and abettor is liable for a perpetrator's mental state as well has his actions. (See McCoy, supra, 25 Cal.4th at p. 1120.) But, as the Attorney General observes, "[I]t is self-evident that a person who directly commits a crime is liable for his own mens rea." Additionally, CALJIC No. 3.31 advised the jury that for murder and attempted murder, "there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator" and CALJIC No. 8.66 stated the jury could convict a defendant of attempted murder only if "[t]he person committing the act harbored express malice aforethought." (Italics added.) Viewing the instructions as a whole, the jury would have understood that the culpability of a direct perpetrator was based on his own personal mental state.
Mey was not prejudiced even if we assume the jury might have construed the instructions to mean that the mental state of an aider and abettor could be imputed to the perpetrator of a murder or attempted murder. The firearm enhancement was found true as to Mey but not as to Oeurn, and none of the other codefendants were convicted of any offense. Assuming the jury viewed Mey as a direct perpetrator rather than an aider and abettor to the shooting, this was not a case in which his culpability was less than his accomplices. (See People v. Johnson (2016) 62 Cal.4th 600, 640 [jury would not have been misled by "equally guilty" language of former CALJIC No. 3.00 when there was no evidence suggesting the mental state of the defendant was less culpable than that of the actual shooter].)
Finally, Mey suggests that CALJIC No. 3.00 could have interfered with the jury's ability to consider his claim that he only fired his own weapon because he believed someone from OTC had fired first and was acting in perfect or imperfect self-defense. But the instructions made it clear that Mey could not be convicted of murder or attempted murder if he was acting in self-defense. CALJIC No. 3.00 does not require the reversal of Mey's convictions.
III. Section 12022.53(d) Enhancement
Mey contends the evidence was insufficient to support the true finding on the firearm enhancement under section 12022.53, subdivision (d), which applies when a defendant " 'personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice.' " The enhancement was based on the gunshot injuries inflicted on Von Neak and resulted in a 25-year-to-life enhancement being added to the attempted murder count that named Von Neak as a victim. Mey argues the physical evidence shows he did not fire his rifle until after Von Neak had been wounded by the opening salvo, meaning he could not have "proximately caused" Von Neak's great bodily injury. We disagree.
When considering a challenge to the sufficiency of the evidence supporting an enhancement, we review the record in the light most favorable to the judgment and draw all reasonable inferences in favor of the disputed finding. (People v. Alvarez (1996) 14 Cal.4th 155, 225 (Alvarez); People v. Tenner (1993) 6 Cal.4th 559, 567; People v. Jones (1999) 75 Cal.App.4th 616, 631; People v. Ortiz (1997) 57 Cal.App.4th 480, 484.) "The question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the underlying enhancement beyond a reasonable doubt." (Alvarez, at p. 225.) As in Alvarez, "The answer [here] is yes." (Ibid.)
A defendant can proximately cause great bodily injury within the meaning of section 12022.53, subdivision (d), even if his bullet does not actually strike the victim. Section 12022.53, subdivision (d), "does not require that the defendant fire a bullet that directly inflicts the harm. The enhancement applies so long as defendant's personal discharge of a firearm was a proximate, i.e., a substantial, factor contributing to the result." (People v. Bland (2002) 28 Cal.4th 313, 338 (Bland).) "Section 12022.53(d) requires that the defendant 'intentionally and personally discharged a firearm,' . . . but only that he 'proximately caused' the great bodily injury or death. The jury, properly instructed, reasonably found that defendant did personally discharge a firearm. The statute states nothing else that defendant must personally do. Proximately causing and personally inflicting harm are two different things." (Id. at p. 336.)
Viewing the evidence in the light most favorable to the judgment, the jury in this case could reasonably infer that Mey and his ASW cohorts armed themselves and positioned themselves in front of the Neak house, where they were seen by Von Neak. Von Neak saw an ASW member who was standing next to Mey raise his gun and fire a shot. Three or four more shots were fired by the ASW group before Von loaded his weapon and returned fire, discharging all ten rounds from his magazine. The ASW members all fired their weapons during the gunfight, and 36-38 rounds were fired from Mey's rifle. The jury could readily infer that by discharging his weapon during the gunfight, Mey proximately caused Von Neak's great bodily injury even if it could not be established that his bullets were the ones that hit their mark.
The jury was given CALJIC No. 17.19.5 defining the elements of the enhancement under section 12022.53, subdivision (d), which stated in relevant part, "[A [proximate] cause of [great bodily injury] [or] [death] is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the [great bodily injury] [or] [death] and without which the [great bodily injury] [or] [death] would not have occurred]." --------
DISPOSITION
Appellants' convictions for first degree murder under count 1 are reversed. If, after the filing of the remittitur in the trial court, the People do not bring appellants to retrial on count 1 within the time limit set forth in section 1382, subdivision (a)(2), the trial court shall proceed as if the remittitur constituted a modification of the judgment to reflect a conviction of second degree murder, and shall resentence appellants accordingly. Copies of the new abstracts of judgment shall be forwarded to the Department of Corrections and Rehabilitation. The judgments are otherwise affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
SIMONS, ACTING P.J. /s/_________
BRUINIERS, J.