Opinion
G056590
11-19-2019
In re ANDREW KHAC VU on Habeas Corpus.
Andrew Khac Vu, in pro. per.; and Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Petitioner. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Lise Jacobson, Jennifer A. Jadovitz, and Michael D. Butera, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 02WF1299) OPINION Original proceedings; petition for a writ of habeas corpus to challenge a judgment of the Superior Court of Orange County, Francisco P. Briseno, Judge. Petition granted in part and denied in part; matter remanded for further proceedings. Andrew Khac Vu, in pro. per.; and Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Petitioner. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Lise Jacobson, Jennifer A. Jadovitz, and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Andrew Khac Vu seeks a writ of habeas corpus based on the Supreme Court's holding in People v. Chiu (2014) 59 Cal.4th 155 (Chiu) that the natural and probable consequences doctrine does not permit an accomplice liability theory to result in a first degree murder verdict. As was the case in In re Loza (2018) 27 Cal.App.5th 797, 799 (Loza), we cannot determine beyond a reasonable doubt that the jury here relied on a legally valid theory to find Vu guilty of first degree murder. We therefore must vacate that conviction. On remand, the prosecution may at its discretion accept a second degree murder conviction or retry Vu for first degree murder under a legally appropriate theory.
Vu raises further habeas claims regarding his conviction on other counts and related matters. In addition to the first degree murder conviction on count 2 (Pen. Code, § 187, subd. (a); all further statutory references are to this code), the jury in Vu's 2003 trial found him guilty in count 1 of conspiracy to commit murder (§ 182, subd. (a)(1)) and in count 3 of active participation in a criminal street gang (§ 186.22, subd. (a)). On counts 1 and 2, the jury found that Vu committed the offenses for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) The jury, however, rejected gang and lying-in-wait special circumstance allegations attached to the murder alleged in count 2. The trial court sentenced Vu to a term of 25 years to life in prison on count 1, a concurrent term of 25 years to life on count 2, and a consecutive term of eight months on count 3.
In a published opinion on Vu's direct appeal, a panel of this court found sufficient independent evidence connected Vu to the crimes to support the admission of accomplice testimony against him and that the evidence supported his conviction for the offenses, but section 654 required a stay of punishment for his convictions on counts 2 and 3. (People v. Vu (2006) 143 Cal.App.4th 1009 (Vu).)
Vu in this habeas proceeding contends Chiu error also infected his conviction on count 1, even though the jury was not instructed on the natural and probable consequences doctrine on that count. He also argues the trial court erred by failing to instruct the jury in count 1 on lesser included offenses of conspiracy to commit murder, namely, conspiracy to commit assault and conspiracy to commit assault with a deadly weapon. Finally, because he was 19 years old at the time of the offenses, Vu will be eligible for a youthful offender parole hearing in the future under sections 3051 and 4801. He argues that the preparatory hearing (Franklin hearing) that the Supreme Court authorized in People v. Franklin (2016) 63 Cal.4th 261 (Franklin) for defendants to place on the record and preserve relevant evidence for the later parole hearing is appropriately ordered by habeas petition, as he now requests. The Supreme Court, however, has recently explained an adequate remedy is available at law to obtain a Franklin hearing, and therefore a habeas proceeding is not the proper avenue to request such a hearing in the first instance. (In re Cook (2019) 7 Cal.5th 439.)
Apart from his Chiu claim in relation to his murder conviction on count 2, Vu's other habeas claims are without merit. We therefore grant his habeas corpus petition in part, deny it in part, and remand the matter to the trial court for further proceedings consistent with this opinion related to Vu's conviction on count 2, which we vacate pursuant to Chiu.
FACTUAL AND PROCEDURAL BACKGROUND
In Vu's direct appeal, this court summarized the underlying facts, which we excerpt briefly or paraphrase here, as relevant to the issues on review.
"Vu was a member of TRG, a criminal street gang. Asian Boyz and TRG were rival street gangs. In October 2000, members of the Asian Boyz street gang attacked three TRG members. Vu, then 17 years old, suffered a stab wound in the attack. Another TRG member, Minot Ly, also was stabbed and died in Vu's arms. Vu was devastated: Ly had been Vu's best friend.
"Ly's funeral was attended by Vu [and by individuals we refer to as Diep, Ton, Le, Anthony Nguyen and San, each with varying degrees of allegiance to TRG]. Diep and Vu were TRG members. Ton was associated with TRG. Le, Anthony Nguyen, and San were considered 'friends' of TRG.
"Several Asian Boyz gang members were convicted in connection with the October 2000 attack. But, as the prosecution's gang expert testified, such lawful process would not satisfy a criminal street gang's thirst for revenge." (Vu, supra, 143 Cal.App.4th at pp. 1013-1014.)
On June 7, 2002, Eddie Fernandez and three friends, all age 14, and none of whom were gang members, went to a cybercafé in Garden Grove to play a computer game. About 9:30 p.m., a group of about 20 youths arrived at the cybercafé in 15 to 20 cars. Most stayed outside and loitered; a few went inside to use the restroom. The café's proprietor had a continuing problem with loiterers, and the restroom wall and pool table had been tagged with the initials '"A.B."'
The café owner told Fernandez and his friends to leave because it was past their curfew. Afraid of the people loitering outside, Fernandez and his friends called a taxi.
While Fernandez and his friends were waiting outside for a taxi to arrive, a black Acura Integra began circling the parking lot. Four young men inside of the vehicle '"mad dogged"' (gave angry looks to) Fernandez and his friends. The vehicle stopped and the front seat passenger flicked a cigarette at the boys before speeding off.
The taxi arrived and the boys got inside. The black Acura then reappeared and began following the taxi. The boys asked the taxi driver to stop because they did not have enough money to go any further. When the boys exited the taxi, they heard nearby car brakes. A man with black '"spiked"' hair got out of the front passenger seat of the Acura and fired a gun at them. One of the boys in the taxi testified a white Toyota and the black Acura stopped behind the taxi. This witness said a man with slicked black hair and a gun got out of the white Toyota. Fernandez was found shortly thereafter lying on the pavement near the taxi. He had suffered five gunshot wounds and died due to a loss of blood.
Vu was later interviewed by the police. He said he had been "'jumped'" into TRG at age 16, but claimed he had been '"jumped out"' a few months later after his best friend died in the Asian Boyz attack in 2000. He said that on Friday, June 7, 2002, he went to the house of Vicki Bui, his deceased friend Ly's former girlfriend, to watch a basketball game, and later went to see a late showing of Spider-Man. After midnight, Vu went to a cybercafé in Costa Mesa for about an hour and then returned to Bui's house, where he stayed the night.
Bui testified that Vu told her early on Sunday morning, June 9, that, '"[i]f anybody asks, I was with you on Friday." Later in the day Vu told her that, '"if anyone asks, tell them you were with me on Friday at Triangle Square . . . we were watching a movie, Spiderman, around 10:00 o'clock . . . then we went to Cyber City."'
This court's opinion in Vu summarized the sufficiency of the evidence on count 1 (conspiracy to commit murder) and on count 2 (murder), as follows:
"The elements of conspiracy may be proven with circumstantial evidence, 'particularly when those circumstances are the defendant's carrying out the agreed-upon crime.' [Citations.] To prove an agreement, it is not necessary to establish the parties met and expressly agreed; rather, 'a criminal conspiracy may be shown by direct or circumstantial evidence that the parties positively or tacitly came to a mutual understanding to accomplish the act and unlawful design.' [Citation.]
"A conviction of conspiracy to commit murder requires a finding of intent to kill. [Citation.] Because there rarely is direct evidence of a defendant's intent, '[s]uch intent must usually be derived from all the circumstances of the attempt, including the defendant's actions.' [Citation.]
"There was sufficient evidence that Vu and his coconspirators expressly or tacitly reached an agreement to murder Fernandez, mistaken to be an Asian Boyz gang member, as revenge for the killing of Ly. The evidence was very strong that Vu and the other conspirators had a motive for the killing. . . . [¶] . . . [¶]
"San and the others in the black Acura believed the passengers in the taxi might be Asian Boyz gang members. At this point, a conspiracy was formed through a series of cell phone calls, evidenced by the cell phone records. The purpose of the conspiracy was to kill the passengers in the taxi, who were mistaken to be Asian Boyz gang members.
"During his police interview, San stated that Ton [who was driving the Acura] had called 'Drew Ha'—Vu's gang moniker. Because Asian Boyz gang members had killed Vu's close friend Ly, it made sense to initiate the conspiracy by calling Vu. San [who was riding in the Acura with Ton] testified he heard Ton tell the listener that he 'saw some people get in a taxi . . . I don't know who's in there, but check who it is.' Ton then told the listener [whom the jury could infer was Diep, in Vu's car] the taxi had turned on Lampson Avenue, and the call ended. San's group in the black Acura followed the taxi down Lampson Avenue. [¶] . . . [¶]
"At this point, three cars are in play: Le's black Acura Integra [with Le, San, and Nguyen as TRG-friendly passengers, along with Ton, the TRG associate, who was driving Le's car], Vu's black Toyota Corolla [in which Diep rode, a full-fledged TRG member, like Vu] , and a white Toyota Camry [driven by Tran, also a TRG member] . . . .
"As the three cars converged on the taxi, the cars' occupants remained in continual contact [as demonstrated by cell phone records] . . . .
"San testified [that before turning onto Lampson Avenue] the taxi drove through a yellow light at Magnolia Street. The Acura [in which San and others merely friendly with TRG rode] stopped for the red light. San further testified that while the Acura waited for the light to change, two cars sped past, driving into the opposite lane of travel to pass the Acura, and ran the red light. One car was a dark color and the other was white. Both were sedans. A reasonable inference is that one car speeding through the red light was Vu's black Toyota Corolla, and the other was the white Toyota Camry driven by Tran.
"San testified that when the light turned green, the Acura continued on Lampson Avenue until the taxi, followed by the two cars, turned left onto another street. As the Acura turned left onto the same street, San saw a man . . . shooting at the taxi. San testified Ton continued driving.
"When the Acura reached Beach Boulevard, Ton received a cell phone call. San heard Ton tell the caller, 'I know, I know.' Ton spoke briefly to the caller then ended the call. Ton told San and the others in the Acura, '[y]ou didn't see anything.' Fernandez was shot about 12:45 a.m. on June 8. [Cell phone records showed calls between alleged co-conspirators whom the jury could infer were riding in Vu's and Diep's cars] at 12:41, 12:42, 12:45, 12:50, and 12:53 a.m. on June 8. . . .
"A white Toyota Camry had been abandoned at the crime scene. That car had been reported stolen.
"A reasonable inference from this evidence is that Vu, who was driving a black Toyota Corolla, was at the crime scene. Another reasonable inference is that one of the occupants of the black Toyota Corolla or white Toyota Camry—Tran, Diep, or Vu—was the shooter and that Diep or Vu (who were both in Vu's car) had called Le's cell phone to report the shooting. Those inferences are all the more reasonable because they leave the three actual TRG members as the ones who carried out the revenge against mistaken Asian Boyz gang members." (Vu, supra, 143 Cal.App.4th at pp. 1024-1028.)
DISCUSSION
1. Timeliness—Chiu issues
As a preliminary matter, the Attorney General argues Vu forfeited his habeas challenge under Chiu. The Attorney General argues that because Vu's petition postdates Chiu by almost four years, it is too late to seek relief under that decision. We disagree. Vu emphasizes that he filed the petition without the aid of counsel after his attorney in federal post-conviction proceedings, William Kopeny, proposed raising the Chiu issue in state court but died before he could do so.
Vu also correctly points out that determining whether Chiu afforded potential relief to an inmate in his circumstances remained a thorny issue even for experienced practitioners and jurists in the two years he was without counsel after Mr. Kopeny died. This court in In re Lopez (2016) 246 Cal.App.4th 350, 356-360 (Lopez), was the first to hold that Chiu constituted a substantive change in criminal law that applied retroactively on habeas corpus to cases that were already final on direct appeal. The Supreme Court reached the same conclusion in In re Martinez (2017) 3 Cal.5th 1216, 1222 (Martinez), only a few months before Vu filed his petition in the trial court. Substantially longer delays have not barred petitions for habeas corpus relief for an unlawful conviction. (E.g., In re Saunders (1970) 2 Cal.3d 1033, 1040-1041.) Under these circumstances, we find there was no unreasonable delay that prevents Vu from seeking relief now.
2. Chiu Error—First Degree Murder
Turning to the merits of Vu's challenge to his first degree murder conviction in count 2, the petition must be granted because two of the four alternate theories for first degree murder included in the instructions given to the trial jury were tainted with error. Each permitted a first degree murder conviction. The four theories were (1) Vu was the actual perpetrator/shooter; (2) Vu was a direct aider and abettor in the murder; (3) Vu aided and abetted the target crime of assault with a firearm and murder was the natural and probable consequence; and (4) Vu conspired to commit the target crime of assault with a firearm and murder was the natural and probable consequence. (CALJIC Nos. 3.00, 3.01, 3.02, 3.03, 6.10.5, 6.11, 6.16, 8.10, 8.11, 8.20.)
Under theories (3) and (4), if a defendant intentionally aids and abets or conspires to commit the target offense—here identified as assault with a firearm—the jurors were told they could find the defendant guilty of a nontarget offense, including murder, provided they also found that the nontarget offense was a natural and probable consequence of the target offense.
In Chiu, which postdated the trial in this case by more than a decade, the Supreme Court rejected this possibility, holding that the premeditation and deliberation necessary for first degree murder "is uniquely subjective and personal. It requires more than a showing of intent to kill; the killer must act deliberately, carefully weighing the considerations for and against a choice to kill before he or she completes the acts that caused the death." (Chiu, supra, 59 Cal.4th at p. 166.) The Court observed that under the natural and probable consequences theory "the connection between the [aider and abettor's] culpability and the perpetrator's premeditative state is too attenuated to impose aider and abettor liability for first degree murder." (Ibid.) Instead, an aider and abettor's liability for premeditated murder must be based on his or her own culpable mental state. (Id. at p. 159.)
Chiu's proscription extends to convictions for first degree murder based on a conspiracy that includes murder as a natural and probable consequence of the target crime the conspirators agreed to commit. (Lopez, supra, 246 Cal.App.4th at 357; People v. Rivera (2015) 234 Cal.App.4th 1350.) As Lopez explained, a defendant is entitled to habeas corpus relief under Chiu when the jury may have reached its verdict based on a conspiracy in which the defendant is liable for first degree murder because of a perpetrator's premeditation and deliberation, rather than his own. (Lopez, at p. 361.)
Here, as in Loza, the trial court's instruction to the jury included CALJIC No. 8.20. The Attorney General relies on this instruction to argue the jury properly convicted Vu of first degree murder based on his own mental state premeditating the crime. CALJIC No. 820 states: "If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion . . . it is murder of the first degree." (CALJIC No. 8.20, italics added.) But the instruction given here also stated: "To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, [he] decides to and does kill." (CALJIC No. 8.20, italics added.)
Loza explained this instruction did not salvage the conviction from Chiu error for two reasons. First, in Loza four codefendants were tried together and, therefore, the first part of the instruction ran afoul of Chiu. In particular, the jury could read the '"defendant"' to refer to any one of the codefendants harboring the requisite '"premeditation,"' rather than Loza individually, as required under Chiu for first degree murder. (Loza, supra, 27 Cal.App.5th at p. 804.)
Second, and more pertinent here, the latter part of the instruction violated Chiu because it specified that "a deliberate and premeditated killing" occurs where "the slayer" has the requisite premeditation. (CALJIC No. 820.) In Chiu, supra, 59 Cal.4th at page 161, the Supreme Court ruled the trial court erroneously instructed the jury "that to find defendant guilty of first degree murder, the People had to prove that the perpetrator acted willfully, deliberately, and with premeditation." (Italics added.) As Loza observed, the instructional error in the latter part of CALJIC No. 8.20 "essentially mirrored the error that occurred in Chiu, but [with] the word 'slayer' instead of the word 'perpetrator.'" (Loza, supra, 27 Cal.App.5th at p. 804.)
The Attorney General argues that in a single defendant case such as this, CALJIC No. 8.20 removes the possibility of Chiu error because the first part of the instruction references the defendant's mental state. But the reference is conditional and illustrative, rather than exclusive. It articulates one set of conditions in which the jury may find a defendant guilty of first degree murder based on the defendant's own mental state, but does not exclude other scenarios. It states that if the defendant engaged in "deliberation and premeditation," then "it is murder of the first degree." The if in this formulation does not mark the defendant's premeditation as a required element. It therefore does not preclude conviction under the second part of the instruction, which states generally—and contrary to Chiu—that the slayer's mental state is sufficient "[t]o constitute a deliberate and premeditated killing" to convict the defendant of first degree murder. Here, as the prosecutor conceded in closing argument by emphasizing the natural and probable consequences doctrine, the evidence did not necessarily establish Vu was the shooter. The Chiu error therefore remains.
As Loza observed, instructional error under Chiu requires reversal "unless we find the error harmless beyond a reasonable doubt." (Loza, supra, 27 Cal.App.5th at p. 805, original italics.) This standard applies equally to habeas petitions. (Martinez, supra, 3 Cal.5th at p. 1225.) The prosecution bears the burden to demonstrate beyond a reasonable doubt that the error did not contribute to the first degree murder verdict. (Loza, at p. 805.)
The Attorney General argues Vu's conviction in count 1 for conspiracy to commit murder demonstrates the jury did not rely on a natural and probable consequences theory when it convicted Vu in count 2 of committing first degree murder. The Attorney General notes that the court's instructions defined the requisite conspiracy not only as an agreement to commit murder but furthermore, "'per CALJIC 6.10,'" required that for a guilty verdict the jury had to find Vu himself had the specific intent to commit murder.
CALJIC No. 6.10 instructs the jury that "[a] conspiracy is an agreement entered into between two or more persons with the specific intent to agree to commit [a particular crime, here identified as murder in the instruction on count 1] and with the further specific intent to commit that crime, followed by an overt act committed . . . by one [or more] of the parties for the purpose of accomplishing the object of the agreement. Conspiracy is a crime." (CALJIC No. 6.10, italics and bold added.) According to the Attorney General, we can therefore be certain the jury convicted Vu of first degree murder in count 2 based on his own premeditation and deliberation, not someone else's, because he formed the premeditated intent to kill when he conspired ahead of time to commit the killing, as reflected by his conviction of count 1. As the Supreme Court has explained, "[A]ll conspiracy to commit murder is necessarily conspiracy to commit premeditated and deliberated first degree murder . . . ." (People v. Cortez (1998) 18 Cal.4th 1223, 1237-1238 (Cortez I).)
The flaw in the Attorney General's argument is that the jury also apparently concluded—when it rejected the gang special circumstance allegation attached to count 2—that Vu did not harbor a specific intent to kill. That special circumstance allegation required the prosecutor to prove that Vu "intentionally killed the victim while [he] was an active participant in a criminal street gang . . . , and the murder was carried out to further the activities of the criminal street gang." (§ 190.2, subd. (a)(22), italics added.) The jury found the allegation "not true."
The Attorney General attempts to limit the contradiction inherent in the jury's rejection of the special circumstance allegation by acknowledging it "may arguably be inconsistent with the jury's verdict in count 3," in which the jury found Vu guilty of active participation in a criminal street gang. The contradiction extends farther than count 3, however, because the "not true" finding on the special circumstance also conflicts with the jury's enhancement findings on counts 1 and 2 that Vu conspired to commit murder and committed murder for the benefit of his criminal street gang (§ 186.22, subd. (b)). This contradiction highlights the inherent contradiction in the jury finding Vu guilty in count 1 of conspiracy to commit murder (i.e., he harbored the specific intent to kill), and then finding "not true" the special circumstance related to a gang slaying (i.e., he did not intentionally kill the victim).
While the Attorney General is correct that inconsistent verdicts generally present no basis to overturn a guilty verdict that is supported by substantial evidence—as is true of the jury's conspiracy verdict on count 1—the Supreme Court's high bar concerning Chiu error is controlling here. At oral argument, the Attorney General urged us to uphold the jury's first degree murder verdict on count 2 despite Chiu error because the jury, through its verdict in count 1, indicated it was convinced beyond a reasonable doubt that Vu conspired to kill his intended victim or victims, and therefore harbored the requisite intent. The question before us in reviewing for Chiu error, however, is whether we are certain beyond a reasonable doubt that erroneous instructions on count 2 involving the natural and probable consequences doctrine played no role in the jury's conclusion on that count.
The stringency of the appellate review standard, and the different standards that apply to different issues, is critical. For example, as we explain below in relation to Vu's claim that lesser included conspiracy instructions should have been given, we can say with confidence under the governing standard of review for that question, that it is not reasonably probable the jury would have convicted him of conspiracy to commit assault or assault with a deadly weapon—if those allegedly-required lesser included instructions had been given. For Chiu error, the standard is more exacting. (Martinez, supra, 3 Cal.5th at p. 1225.) The question is not whether one outcome is more reasonably probable than another. It is whether there is a reasonable possibility the Chiu error that occurred here contributed to the jury's verdict on count 2. We find such a possibility in light of the fact the jury was erroneously instructed on count 2 with the natural and probable theory of first degree murder, and the jury on that same count found "not true" the gang special circumstance that alleged Vu harbored a personal intent to kill.
It may have only been a momentary lapse during which the jury allowed the natural and probable consequences doctrine to creep into its analysis on count 2. But that is textbook Chiu error, and we cannot say beyond a reasonable doubt it did not occur here. Vu is therefore entitled to habeas relief on count 2.
3. Alleged Chiu Error—Conspiracy to Commit Murder
Vu attempts to leverage the Chiu error that requires vacating his murder conviction in count 2 to also vacate his conspiracy conviction in count 1. He argues the jury "could have readily (but incorrectly) concluded that if [he] was guilty of first degree murder in Count Two based on a conspiracy theory, then he must be guilty of a conspiracy to commit murder in Count One." We are not persuaded.
Vu relies on the fact that among the four alternate theories the prosecutor advanced for a murder conviction in count 2, the conspiracy theory was premised on the natural and probable consequences doctrine prohibited in Chiu. Specifically, the instructions for that theory told the jury—erroneously under Chiu—that if Vu conspired to commit assault with a firearm, and if the jury concluded murder of the victim by one of the conspirators was a natural and probable consequence of the agreement to commit the assault, then Vu was guilty in count 2 of murder under the natural and probable consequences doctrine.
The flaw in Vu's attempt to blend Chiu error related to count 2 into count 1 is that the trial court separately instructed the jury on the findings necessary for each count. At oral argument, Vu's counsel agreed there was no instructional error as to count 1. The instruction regarding conspiracy to commit murder required the jury to find Vu conspired to commit murder, not just assault or assault with a firearm, and that he had "the further specific intent to commit that crime," namely murder—not some other offense. (CALJIC No. 6.10, italics added.) The instruction did not reference the natural and probable consequences doctrine, and therefore furnishes no basis for habeas relief under Chiu.
Nonetheless, Vu argues the jury was required to find as an additional element of count 1 that one or more of the conspirators committed at least one overt act to further the conspiracy to commit murder. (CALJIC No. 6.10.) He emphasizes that two of the potential overt acts the jury was instructed to consider included whether one of Vu's fellow gang members "asked [other TRG members] to obtain weapons to be used in an assault" ("Overt Act 02") and whether a TRG member spoke with Vu by cellular phone "to plan and arrange an assault on victim Edward Fernandez" ("Overt Act 04"). (CALJIC No. 6.23, italics added.) Vu suggests that interspersing allegations of overt acts concerning a planned assault for the jury to consider in deciding whether he conspired to commit murder as alleged in count 1 may have confused the jurors and implicitly led them astray to draw on the instructions for count 2 concerning murder as a natural and probable consequence of assault with a firearm—thereby triggering Chiu error. We see no reason to make this leap, however, because the instruction regarding conspiracy to commit murder specified the jurors had to find Vu harbored "specific intent to commit that crime." We presume that jurors "are intelligent persons," capable of correlating or distinguishing instructions as required (People v. Martin (1983) 150 Cal.App.3d 148, 158) because they '"generally understand and faithfully follow instructions."' (People v. Homick (2012) 55 Cal.4th 816, 867.)
We find similarly unpersuasive Vu's argument that the prosecutor's argument led the jurors into Chiu error on count 1 or that questions the jury posed for the court during deliberations indicated lingering confusion that somehow led them into Chiu error on count 1. The record suggests that the jury considered the counts in sequential order starting with count 1 and that it reached its verdict on that count in fairly short order. As noted above, Vu's counsel concedes there was no instructional error as to count 1.
Vu notes that the prosecutor seemed to suggest the gang special circumstance attached "to the murder and to the conspiracy," which would be erroneous if the prosecutor meant it attached to the conspiracy alleged in count 1. Vu argues such error would compound the earlier error by the prosecutor when he suggested the intent to kill requirement for the gang special circumstance could be proven "either by aiding and abetting or by natural and probable consequence," rather than Vu's own personal intent. (Italics added.) But Vu did not object to these misstatements, and it is difficult to see how they would lead the jury into Chiu error on count 1 given that the jury rejected the special circumstance allegation. A true finding might have created faint Chiu implications based on the prosecutor's vague reference to natural and probable consequences, but the jury's "not true" finding convinces us there was no conceivable taint from the prosecutor's argument.
In any event, just as we presume jurors are capable of following the court's instructions, we presume they look to the trial court for the law they are to follow, not to counsel. (People v. Clair (1992) 2 Cal.4th 629, 662-663.) In giving CALJIC No. 1.00, the court expressly instructed the jurors, "You must accept and follow the law as I state it to you, regardless of whether you agree with the law. If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions."
The jury did ask the court multiple questions during deliberations, but Vu identifies nothing in the jury's questions or the court's answers that suggests the jury fell into Chiu error on the count 1 conspiracy to commit murder charge. When the jury asked about the difference between first and second degree murder generally, the court made sure to specify that "[i]n Count 1 the 'conspiracy to commit murder' [charge,] the jury does not determine the degree of the murder." (See Cortez 1, supra, 18 Cal.4th at pp. 1237-1238 [conspiracy to commit murder is by definition premeditated murder as a matter of law].) The court further drew a sharp distinction between conspiracy in counts 1 and 2, specifying that instructions or "law concerning conspiracy as it applies to Count 1 are set out in CALJIC series 6.10." In contrast, the court specified: "CALJIC 6.11 and 6.10.5 are [the] instructions as to the unalleged conspiracy and they relate only to Count 2." (Italics added.) By the terms of this instruction, the court limited the prosecutor's theory in count 2 for murder as the natural and probable consequence of an assault conspiracy "only to Count 2." In light of the court's instructions and answers to the jury's questions—none of which made any reference to the natural and probable consequences doctrine on the count 1 conspiracy charge—Vu's petition for habeas relief under Chiu on count 1 must fail.
4. Alleged Instructional Error—Failure to Instruct on Lesser Included Conspiracy Offenses
In a separate argument unrelated to Chiu, Vu argues his conviction in count 1 must be set aside because the trial court failed to instruct the jury on two lesser included offenses of conspiracy to commit murder. He identifies one of those lesser included offenses as conspiracy to commit assault, as referenced in two of the overt acts the prosecutor alleged to satisfy the overt act requirement of the conspiracy to commit murder charged in count 1. He identifies the other lesser included offense as conspiracy to commit assault with a deadly weapon, which the prosecutor theorized as a basis for the count 2 murder charge under the natural and probable consequences doctrine. The Attorney General asserts Vu forfeited these claims by failing to raise them in his direct appeal. We address them now in this habeas proceeding to meet Vu's claim of ineffective assistance of counsel for failure to raise the claims earlier. As we explain, any error in failing to instruct the jury on lesser included conspiracy offenses was harmless.
The parties identify a split in authority regarding whether overt acts alleged in a conspiracy charge can determine if the alleged charge necessarily includes the overt acts as potential alternate objects of the conspiracy, and thus those pleaded overt acts constitute lesser offenses under the accusatory pleading test for lesser included offenses. (See People v. Fenenbock (1996) 46 Cal.App.4th 1688 (Fenenbock), People v. Cook (2001) 91 Cal.App.4th 910 (Cook), and People v. Cortez (2018), 24 Cal.App.5th 807 (Cortez II).)
The Attorney General argues that—independent of the accusatory pleading test—no evidence presented at trial supported giving instructions on a conspiracy to commit anything less than murder because nothing suggested the coconspirators aspired to anything less than killing their intended Asian Boyz victims as retribution for Ly's murder. The Attorney General also relies on the principle that the trial court's obligation to instruct the jury on the general principles governing the case "'include[s] giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.'" (People v. Breverman (1998) 19 Cal.4th 142, 154.)
We will discuss briefly the split of authority between Fenenbock, Cook, and Cortez, but we need not weigh in on the debate because we agree with the Attorney General's further argument that any conceivable error in failing to give lesser included conspiracy instructions was necessarily harmless because a different outcome would not be reasonably probable if different instructions had been given. "In determining whether a failure to instruct on a lesser included offense was prejudicial, an appellate court may consider 'whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.'" (People v. Rogers (2006) 39 Cal.4th 826, 870 (Rogers).)
As to the accusatory pleading test for necessarily included lesser offenses, Fenenbock held that, because the essence of conspiracy is the coconspirators' agreement itself, and because overt acts need not be committed by the defendant and need not even be criminal, such acts "do not necessarily reveal the criminal objective of the conspiracy" and as such do not provide notice of any allegedly lesser "target" offenses. (Fenenbock, supra, 46 Cal.App.4th at p. 1709.) Fenenbock accordingly held that "it is the description of the agreement within the accusatory pleading, not the description of the overt acts, which must be examined to determine whether a lesser offense was necessarily the target of the conspiracy." (Ibid.) Applying that rule, Fenenbock held that the conspiracy charge in that case, which alleged only that the defendants "conspired to murder [the victim]," did not necessarily include assault, battery, or mayhem as lesser target offenses of the conspiracy, and that the trial court therefore did not err in not instructing the jury on those offenses. (Ibid.)
Disagreeing with Fenenbock, Cook held a court may consider the overt acts alleged in determining whether a conspiracy charge necessarily includes any lesser target offenses. (Cook, supra, 91 Cal.App.4th at pp. 920-921.) Reasoning first that "an accusatory pleading does not fail to give notice merely because an overt act, or any other charged act, is not personally committed by a defendant" (id. at p. 920), and second, that "principles of due process require that the overt acts be pleaded with particularity in order to give defendants notice of the nature and cause of the charge so that the defendant may defend against that charge" (id. at p. 921), Cook held that the overt acts alleged can in some circumstances provide notice to a defendant of an allegedly lesser target offense and thereby support a jury instruction on it (id. at pp. 920-922).
In Cook, the court determined the charging document in that case, which had alleged only a conspiracy to commit murder, gave notice of a charge of "conspiracy to commit murder by means of a firearm" because two of the four alleged overt acts involved the use of a firearm. (Cook, supra, 91 Cal.App.4th at p. 922.) This, in turn, "gave notice of the lesser included offense of conspiracy to commit assault with a firearm." (Ibid.) Accordingly, Cook held that the trial court had properly instructed the jury on that offense. (Ibid.)
More recently, in Cortez II, the court agreed in part with Cook by finding it was not error for a trial court to consider overt act allegations when deciding "whether the conspiracy count allegations as a whole require sua sponte instruction on a lesser included conspiracy offense." (Cortez II, supra, 24 Cal.App.5th at p. 820.) The Cortez II court nonetheless found that the evidence in that case did not warrant lesser conspiracy instructions. (Id. at p. 821-822.)
As stated above, we conclude that any conceivable error in the trial court's failure to sua sponte instruct the jury on conspiracy to commit assault and conspiracy to commit assault with a deadly weapon as lesser included offenses of conspiracy to commit murder did not prejudice Vu. The standard of review governing alleged instructional error is the standard for alleged violations of state law under People v. Watson (1956) 46 Cal.2d 818, 836, not the standard under Chapman v. California (1967) 386 U.S. 18 for a violation of due process. Under Watson, "[r]eversal is required only if it is reasonably probable the jury would have returned a different verdict absent the error or errors complained of." (Rogers, supra, 39 Cal.4th at pp. 867-868, fn. omitted.)
Here, it is not reasonably probable that the absence of instructions on lesser conspiracies affected the outcome of the jury's deliberations. The autopsy evidence showed that Fernandez bled to death after he suffered five gunshot wounds perforating his right lung and diaphragm, his liver, spleen, abdominal aorta, inferior vena cava, and his bowel. The evidence also credibly showed Vu's coconspirators, not satisfied with the fact that Ly's killers had suffered criminal convictions, and still seeking vengeance, contacted him after spotting individuals perceived to be Asian Boyz to authorize a gangland style hit. Under these circumstances, it is not reasonably probable that Vu and his cohort conspired to merely assault an Asian Boyz enemy as revenge for Ly's murder. There is no basis on which to grant Vu's request on habeas corpus to vacate his conviction in count 1.
5. Franklin Hearing
Finally, Vu requests that we order the trial court to conduct a Franklin hearing to preserve evidence relevant to a future youthful parole hearing. As the Supreme Court has recently explained in In re Cook, however, because an adequate remedy at law is available to procure a Franklin hearing, "resort to a petition for writ of habeas corpus is unnecessary, at least in the first instance." (In re Cook, supra, 7 Cal.5th at p. 447.) Specifically, "a sentenced prisoner whose conviction is final can seek the remedy of evidence preservation" through "a motion in the trial court for that purpose, under the authority of section 1203.01," which provides that, "postjudgment, the trial court may generate, collect, and transmit information about the defendant and the crime to the Department of Corrections and Rehabilitation." (In re Cook, at pp. 446-447.) The court also explained that trial courts have "inherent authority under Code of Civil Procedure section 187 to authorize additional evidence preservation consistent with our holding in Franklin." (In re Cook, at p. 447.) Consequently, Vu's bid for this court to issue a writ of habeas corpus to direct the trial court to hold a Franklin hearing is premature.
DISPOSITION
The petition is granted in part and denied in part. Vu's first degree murder conviction in count 2 is vacated and, on remand, the prosecution may either accept a second degree murder conviction or retry Vu for first degree murder using jury instructions that do not violate Chiu. Vu's other claims for habeas relief are denied, leaving the trial court's judgment intact in all respects except for the vacated conviction on count 2. Vu may apply to the trial court for a Franklin hearing under the procedures outlined in In re Cook, supra, 7 Cal.5th 439.
GOETHALS, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.