Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 153973
RUVOLO, P. J.
Introduction
Appellant admittedly fired a gun only a few feet away from the location of an unarmed struggle between two other young men, one of whom was appellant’s close friend. A bullet from appellant’s gun entered the thigh of the man with whom appellant’s friend was fighting. The victim was then shot twice in the back by a different friend of appellant’s, and later died of his wounds. Appellant was convicted of second degree murder.
The prosecution sought a murder conviction on either of two grounds, aiding and abetting a battery, the natural and probable consequence of which was the victim’s death (the aiding and abetting theory), or implied malice. We accept appellant’s argument that the prosecution’s aiding and abetting theory is not supported by sufficient evidence of the underlying battery, because there was no evidence that appellant’s friend was the aggressor in his fight with the homicide victim. We reject appellant’s claims of error as to the implied malice theory, however, and therefore affirm appellant’s conviction.
Facts and Procedural Background
Dramatis Personae
The charges filed against appellant in this case arose from a confrontation between two groups of young men. As of June 2006, appellant’s group included Quoc Duy Ho (Steven); Phung Mai (Mike); My Duy (Duy); and Long Le (Long). Appellant and Steven had been close friends since high school. Appellant had known Mike since middle school, and considered him a good friend. Appellant and Long (who were not related) had known each other about 12 years.
We use the term “group” advisedly. The prosecutor conceded at appellant’s trial that there was no evidence that the charges against appellant in this case were connected to any gang-related activity. As the parties have done in their briefs, we will refer to each individual by his most commonly used name, which is listed in parentheses after his full name.
The other group of men (Chau’s group) included the two victims of the charges brought against appellant. They were Chau Tran (Chau), who was killed, and My Ha (My Ha), who was wounded. At the time of Chau’s death, Chau, My Ha, and a third man named Tung Vu (Tung) had all been close friends for several years. In addition, this group included Minh Mai (Tony); Tien Van Le (Tien) and Tu Van Le (Tu), who are twin brothers; Le Tran (Le); Huong Nguyen (Huong); Huong’s older brother, Ty Nguyen (Tiger); a friend of Tung’s and Tu’s named Thai Lac (Thai) ; and Tuy Nguyen, sometimes called Lang (Tuy). Tuy’s cousin Phillip Nguyen (Phillip) and Le Van Nguyen were also part of Chau’s circle, although less closely connected to it.
My Ha also went by the name Jay, but he is most often referred to in the record and the briefs as My Ha, so that is how we will refer to him. Appellant was acquitted of all charges involving the wounding of My Ha, so we will not discuss the prosecution’s theory of liability as to those charges.
Tien and Tu were close family friends of My Ha. Although Tien and Tu share appellant’s last name, they are not related to him.
Huong’s given name is sometimes misspelled Hung in the record.
In the record, Tiger’s given name is sometimes misspelled Thai, but there was a different young man in Chau’s group whose name actually was Thai.
Tuy and Phillip are cousins of each other and of twin brothers Tien and Tu.
To varying degrees, some members of each group were acquainted with members of the other. Tony, in Chau’s group, is the older brother of appellant’s friend Mike. Tony had known appellant for a long time, was fond of him, and while they were all in high school, considered him almost as a younger brother. Appellant had never had any kind of fight with Tony. Appellant and his friends had hung out with Chau and his friends while they were all in high school together. Appellant considered Chau a friend, and had no history of personal conflict with him. Appellant had known Tiger since high school, and Thai since middle school. Tien and Tu knew appellant, and also knew Steven, who was a distant relative of theirs. Appellant thought of Tien and Tu as his friends. Appellant’s friend Long knew Chau, My Ha, Tiger, Huong, Tony, Mike, and Steven.
Tiger and Huong, in Chau’s group, grew up with Tony and Mike. My Ha had often seen appellant in the places where Chau’s group spent time, and they recognized one another easily. My Ha and appellant did not really know one another, but appellant had no history of problems or conflict with My Ha. My Ha also recognized Steven as someone he had seen with appellant. Tuy had known Steven since they were both teenagers, though he and appellant did not know one another. Tung and appellant knew one another well enough to recognize each other, and Tung knew Steven slightly. Appellant had no history of problems with Tung.
Appellant also knew a man whom he called Johnnie, but whose real name was Kam Wong (Johnnie). Johnnie was a newcomer to appellant’s social circle, and appellant considered him an acquaintance rather than a close friend. Appellant had only known Johnnie for about six months, and did not know his full name. Johnnie was not familiar to the members of Chau’s group. Unlike the other men in both groups, who were all of Vietnamese origin, Johnnie’s ethnic background was Chinese.
The Coffee Shop Incident
Sometime in the spring of 2006, appellant spent the evening in a coffee shop in Oakland with Steven; Steven’s girlfriend; Duy; a girl named Mai Linh (Linh), whose birthday they were celebrating; and some other people. Johnnie was also at the coffee shop, but he was not sitting at the table with appellant and his friends. Later in the evening, Chau and Tony arrived with about 10 of their friends, and sat at a different table. The men in both groups were drinking beer, which was sold at the coffee shop, and some of them had been drinking heavily.
Appellant described Linh as Duy’s girlfriend, but Tony testified that he, at least, was not aware at the time that Linh was dating anyone.
When Duy left the table briefly, Chau approached Linh and started talking to her. According to appellant, Chau was whispering in Linh’s ear. Linh appeared to appellant to be uncomfortable with Chau, so appellant asked her whether Chau was bothering her. The accounts of what happened next that were given at appellant’s trial varied in detail, but all agreed that Steven, who was sitting next to appellant and across from Chau and Linh, appeared to become angry with Chau, and vice versa. Angry words were exchanged, and then Chau reached across the table and grabbed Steven’s shirt and pulled on it. Steven then grabbed Chau back the same way.
While Chau and Steven were engaged in this confrontation, Tony and Chau’s other friends stood up in a way that made appellant concerned that a fight was about to break out. According to Tony, appellant stood up also, raising his voice angrily. Trying to act as a peacemaker, Tony went to appellant, put a hand on his shoulder, and asked him to sit down. Appellant responded that he would sit down if Tony told “your boy” to sit down. Tony testified that during this interchange, appellant yelled angrily and looked as if he was prepared to intervene in the fight. Tony tried to calm the situation, but the hostilities continued.
Appellant’s version of the episode was somewhat different, casting himself rather than Tony as the peacemaker. According to appellant, it was he who went to Tony and calmly asked Tony to tell “his boys” to sit down and not cause trouble. Appellant explained that it was Linh’s birthday, and so he just wanted to have fun, and did not want any problems. Appellant testified that Tony seemed to be focused exclusively on Chau, and not to be paying attention to him. Appellant acknowledged, however, that Tony pushed him down in order to encourage him to sit down and not worry about it.
Johnnie then came from another part of the coffee shop over to the table occupied by appellant’s group, and pointed a black semiautomatic gun with a wooden grip across the table at Tony, Chau, and their friends. Johnnie told Tony and Chau to “Back the fuck up,” and fired one shot into the ceiling of the coffee shop. Appellant testified that he did not realize Johnnie had pulled out a gun until he heard the shot, and that it was only after firing the gun that Johnnie aimed it at the others and told them to back up.
Tony pulled Chau away, but Chau struggled to continue fighting with Steven, and according to appellant, he refused to leave. Meanwhile, appellant told Johnnie to put the gun away, but Johnnie continued to point it at Chau and his friends until they left the coffee shop. Finally, the coffee shop owner told everyone to leave, and Johnnie put the gun down.
Tony testified that while Chau and his friends were leaving the coffee shop, Chau was yelling, but he did not hear him say anything in particular. Appellant testified, however, that as Chau’s friends were pulling him away, Chau turned toward Steven, and said in Vietnamese, “Remember me, I’m coming for you.” On cross-examination, appellant acknowledged that Chau did not directly threaten him, and did not address this remark specifically to him.
According to appellant, he was frightened by the incident and by Chau’s parting remark, and he was concerned about how Tony and Chau’s friends would feel about Johnnie’s having fired a gun around them, and whether they would think, despite appellant’s efforts to calm things down, that he was somehow involved in the fight. Johnnie and Duy warned appellant afterwards that Chau and his friends were angry about the incident, and were looking for Johnnie and possibly also appellant. This led appellant to stay away from some of his usual haunts for some time, in order to avoid any confrontation with Chau’s group, because he was afraid they would try to harm him physically. Appellant also stopped seeking out Johnnie’s company during this time, because he was afraid of him.
Tony denied this, and testified that he was not aware of any discussion about revenge regarding the incident.
When appellant did run into Chau once after the coffee shop incident, Chau did not greet him as he had before, and acted as if he had “disowned” appellant, though he was not overtly hostile. When Chau made a phone call during this encounter, appellant was afraid Chau was calling his friends, and that they were out to get appellant, so appellant left. Appellant acknowledged, however, that Chau and his friends never threatened him with weapons of any kind during the period between the coffee shop incident and the night that Chau was killed.
Appellant also advised Steven to cool down about the incident, and stay out of trouble. Johnnie and Steven were angry about the incident, but they assured appellant that they were not holding a grudge. Johnnie told appellant that he had not really wanted to shoot the gun, but had done so because he was afraid Steven was in danger.
Facts Giving Rise to the Charges Against Appellant
On June 3, 2006, several weeks after the coffee shop incident, appellant spent the early evening with Steven and Johnnie, whom he had seen five or six times since then. Between 5:00 p.m. and about 8:30 or 9:00 p.m., appellant drank about three bottles of beer.
About 8:30 or 9:00 p.m., appellant’s friend Mike (Tony’s brother) called him and invited him to a party. Steven and Johnnie asked if they could come to the party with appellant, and Mike said this would be all right. Appellant asked whether Tony and the other members of Chau’s group would be there, and Mike said they would not. The party was at the house that Mike had recently moved into, and appellant did not know that it was for Tiger’s brother.
Appellant, Johnnie, and Steven drove to the house where the party was taking place. They traveled in Steven’s car, arriving at about 10:00 p.m. Appellant did not expect trouble, did not think that Tony or Chau would be at the party, did not bring a gun with him, and was not aware of there being any weapons in Steven’s car. Long testified that appellant appeared to be happy when he arrived at the party, and appellant testified that he was having fun and was not nervous or scared. Appellant did not drink any alcohol after arriving at the party, and felt “fairly sober” while he was there.
Meanwhile, unbeknownst to appellant, Tony and Chau and some others in Chau’s group, who had spent varying portions of the earlier part of the evening in a pool hall drinking beer and brandy, also decided to attend the same party. Tony and his friends were invited to the party by Tiger and his brother Huong, who were childhood friends of brothers Tony and Mike; the party was for Huong’s birthday. Tony and Tiger left the pool hall for the party shortly before the rest of the group did, and arrived there earlier.
After appellant had been at the party for a short time, Johnnie went to use the bathroom, and while he was gone and appellant was talking to Steven, he caught sight of Tony and Tiger through a window. Mike still had not told appellant that Tony would be coming to the party. Tony was standing outside the house talking on the phone. Tony acknowledged in his testimony that he had called someone in Chau’s group from the party, but denied that he had done so for any reason other than to tell them what the party was like and how to get there. He admitted that he told the person he called that appellant and Steven were at the party, but he did not recognize Johnnie until after he made the call.
According to appellant, when he saw Tony and Tiger, they looked at him and Steven in a “cocky and confident” way. Steven told appellant that Tony and Tiger had given him “an evil look,” and then appellant became worried and frightened. Appellant was concerned that Tony was calling his friends to come to the party. Steven said he wanted to leave, and so did appellant, so appellant used his cell phone to call Johnnie, who was in the bathroom, and tell him that he and Steven were leaving. Long saw appellant as he left, and testified that appellant seemed nervous, and told Long that he had to leave.
As appellant and Steven left the house where the party was, they passed Tony on the way out, and according to Tony, they barely made eye contact with him. Tony denied harboring any animosity toward appellant at this time, though he was not inclined to talk to him, and appellant acknowledged that Tony did not say or do anything threatening to him when he passed him. According to Tony, when Steven passed him on the way out of the house, Steven put his hand under his shirt briefly, although Tony could not see what he was doing, and looked at him with a confident smirk. Tony did not see anything unusual about appellant. As Johnnie caught up with appellant and Steven just outside the house, Tony noticed for the first time that Johnnie was there with them, and only then did he recognize him.
Steven was walking behind appellant as they left, so appellant could not see whether or not Steven did as Tony described. Appellant denied that he and Steven or Johnnie discussed any plan or intent to hurt or kill anyone while they were in the process of leaving the party.
Tony stayed at the party, waiting for his friends to arrive, after appellant, Steven, and Johnnie left. Just as they were leaving, Chau, Tung, Thai, and Thai’s girlfriend arrived in the area in a white Honda Civic, and My Ha, Tien, and Tu arrived in Tien’s Acura, followed by Tuy and Phillip in another car. The car Tuy was using, a silver Mitsubishi belonging to his sister, parked right behind Tien’s car.
As soon as they were all there, My Ha hurried across the street to catch up with Tung and Chau. Just then, appellant, Steven, and Johnnie left the house where the party was taking place and walked diagonally across the street toward Steven’s parked car. As they did so, appellant saw a group of other young men, which he testified numbered over 10 in all, standing in several clusters farther down the street near the next intersection. Appellant could not see who they were at the time, and even when they got closer, did not recognize anyone in the group except for Chau and Tung. The testimony at trial made clear, however, that this group consisted of Chau, Tung, My Ha, and others from Chau’s group, who had just arrived and were walking up the street toward the house where the party was being held. According to My Ha, Chau was “a little buzzed” from drinking alcohol at this time.
As appellant, Steven, and Johnnie neared their car, with Steven in the lead and Johnnie to appellant’s right, Steven unlocked the car, apparently with a remote door control. According to Tung and appellant, Chau approached Steven and grabbed the lapels of Steven’s shirt, cursing loudly in a threatening way in both Vietnamese and English. Steven also began speaking loudly and angrily, and cursing. Appellant was frightened by this, although Chau did not threaten him directly, and Steven appeared to be able to defend himself.
My Ha did not see who grabbed whom first, but testified that the first thing he heard after arriving at the scene was Chau making a “commotion.” Tung heard nothing when he first arrived, but acknowledged that a little later he heard Chau shouting angrily in Vietnamese. Tuy heard a loud argument between Chau and another man, but did not see them touch each other. My Ha and Tung both described what ensued as Chau and Steven “wrestling” or “grabbing each other.”
Tung did not recognize Chau’s opponent at the time, but found out later from Thai, Tien, and Tu that he was Steven. Once he heard the name, Tung knew who Steven was.
While this was happening, Johnnie, who had arrived at the passenger door of Steven’s car, handed appellant a silver gun with a pearl handle. Appellant put the gun in his waistband. He testified that he was not aware at the time that Johnnie also had a gun, and this was the first time he learned that there were any guns in Johnnie or Steven’s possession that evening. Appellant had never seen or handled the gun before, and did not know where Johnnie had retrieved it from, but he knew enough about guns to realize that the gun was loaded, because it had a clip in it.
Members of Chau’s group, including Tung, and My Ha, soon approached the spot where Chau and Steven were struggling, which was about eight or nine feet away from appellant. Tung testified that he rushed to Chau’s aid when he saw two other men (later determined to be appellant and Johnnie) approaching Chau and Steven.
Appellant’s and Tung’s versions of their ensuing confrontation were inconsistent in numerous respects. We begin with Tung’s version, which the jury requested be reread to them during their deliberations.
Tung testified that as he came toward the group surrounding the struggling pair, he was holding was a beer bottle, which was in his right hand. Tung acknowledged that he intended to use the beer bottle to attack appellant, but denied that he had his other hand hidden. According to Tung, both appellant and Johnnie pulled out guns as Tung approached, and pointed them at Tung. Tung stopped once he saw the guns. He yelled, “What do you want?” in Vietnamese, and then said, “Go ahead. Shoot me.”
Tung corroborated appellant’s testimony that the gun appellant used was a silver-colored semiautomatic pistol. Contrary to some of the other evidence (discussed post), Tung also described Johnnie’s gun as a silver-colored pistol.
After Tung saw the guns, but before he heard any shots, he ducked down next to a parked car. Appellant and Johnnie then both turned their bodies so that their guns were no longer pointing at Tung. The first shot Tung heard came from the direction where Chau and Steven were, and there was a pause after it. Then appellant and Johnnie passed Tung on the other side of the car beside which Tung had crouched down, and it was only after that that the other shots were fired. They came from a different direction, farther away from Tung. After the last shots were fired, appellant and Johnnie got in their car and drove away.
Tuy also testified that the first shot came from near Chau, but he heard a second shot from the same location before there was any pause. After the pause, Tuy heard more gunshots coming from different directions. Tien and Tu, who had stayed in Tien’s car, also heard gunshots. Tien saw flashes in more than one direction, but Tu did not see any flashes.
Appellant’s version of the same sequence of events was markedly different. Appellant acknowledged pointing his gun at Tung when Tung got within about 15 or 20 feet from him, but averred that even after he did so, Tung kept coming towards him. Appellant was scared when he saw Tung running toward him, particularly because Tung appeared to be holding something round in his left hand, which looked to appellant like a pipe or cylinder that might be some kind of weapon. Tung also had his right hand hidden, which led appellant to believe Tung might have a gun. Appellant explained that he was “in shock” at the time, because Tung was coming at him and things were happening so fast, so he drew the gun and pointed it at Tung to try to get Tung to stop approaching him.
Appellant testified that while he was watching Tung approach him, he heard one or more gunshots coming from the direction of where Chau and Steven were fighting, although he did not see Johnnie, Steven, or Chau holding a gun. According to appellant, Tung continued to move toward him even after the shots went off.
Appellant explained that he did not want to hurt Tung or anyone else. He did not want to shoot the gun, but he was afraid of Tung, who kept advancing toward him, so he backed up slowly and fired a single shot at the ground to warn Tung away. Appellant fired the shot to defend himself, not Steven or Johnnie. Tung was about 15 feet away at the time, in a crouching position, and appellant did not see anyone else within range of the shot, although there were two people about 10 feet behind Tung. Appellant did not see where the bullet went, because it was dark, but he assumed it hit the ground because that was where he was aiming.
Even after appellant fired his warning shot, Tung kept coming, saying, “Shoot me. Shoot me.” Appellant responded, “[B]ack up. Don’t make me,” but Tung kept coming. Ultimately, Tung came within about three feet of appellant, but appellant moved away. Tung may have gotten close enough to appellant to strike him, but he never actually attacked.
After appellant fired a single shot from the gun he was holding, he heard several more gunshots coming from various directions, although he still did not see who fired them. Appellant heard shots from the location where Steven and Chau were, to his left, and from Johnnie’s location, to his right. Appellant heard seven or eight gunshots in all, with pauses in between them, and thought that he heard more than one gun besides his own, because the shots came from different locations. A few minutes after the last shots, appellant heard Johnnie calling him to get in the car, and saying, “Let’s go. Let’s go.” According to appellant, he then backed away from Tung, still holding the gun on him, and then ran to the car. As he did so, he saw someone lying on the ground, but did not know who it was.
Appellant testified that during the time appellant was holding the gun on Tung, he noticed that Johnnie was in a different location than before, but it is not clear from his testimony whether he actually saw Johnnie moving away from his original position.
My Ha gave yet another version of the sequence of events. He testified that while appellant and Tung were confronting one another, he continued to move toward Chau to assist him in his struggle with Steven. My Ha saw appellant pull out a dark-colored gun, hold it at chest height, point it at Chau (not Tung), and fire it. Soon after that, My Ha himself was hit twice by gunshots, which came from a different direction. My Ha did not see the gun, and did not know who shot him, but he saw that the person who was holding that gun was the Asian man whom he did not recognize. My Ha’s recollection was that he heard a total of seven to ten shots, from two different directions.
This man was evidently Johnnie, although at the time My Ha did not know who he was.
While these events were occurring, a local resident, Jesus Pallan, heard two or three voices yelling in the street outside his home, and then between three and five rapid gunshots, which prompted him to look out the window. He saw a young man, whom he assumed was Hispanic, standing in the street under a streetlight, pointing a very dark-colored semiautomatic handgun at a man lying on the ground who looked like he had been shot, and was not moving. The man holding the gun was between 18 and 25 years old, wore a white T-shirt, and had light skin, cropped hair, average height, and a muscular to slim build, but Pallan was not able to identify him further. Pallan saw no one else in the area. The gunshot sounds had ceased briefly, but as Pallan watched, the gunman fired about three more shots at the man lying on the ground. Pallan called 911.
Pallan was a veteran and came from a military family, so he was very familiar with guns.
While Pallan was on the phone with the 911 dispatcher, he saw three or four cars leave quickly. By this time, the shooter had disappeared; Pallan did not see him leave, because he left the window to look for his phone. Then another car pulled up, and its occupants picked up the wounded man before driving off. This was consistent with Tung’s account, which was that after the others departed, leaving Chau lying in the street bleeding and struggling for breath, Tuy arrived in his car with Phillip, and with Tung’s help, they put Chau in Tuy’s car and took him to the hospital. It appeared to Tung that Chau died on the way there, despite Tung’s efforts to keep him alive.
My Ha was hit on the left side of his chest and in his left rear hip. Tu and Tien took him to the hospital, and he later recovered from his wounds. In the car, My Ha told Tien and Tu that “Steven and them” had shot him, but did not say who “them” was. While in the hospital, My Ha told Tony that it was appellant who had shot him. Tony was surprised at that, and reluctant to believe that appellant could have done it.
When the police arrived, shortly after midnight, they found no victims of the shooting, but they did find a pool of blood and a black baseball cap in the street. They also found eight or nine bullet casings and one bullet.
An autopsy revealed that Chau had three entrance wounds in his body, as well as blunt injuries to his head and neck. Of the entrance wounds, one was in Chau’s right upper back; the second was in the left side of his back, and had gunpowder stippling around it, indicating that it came from a gun fired at relatively close range; and the third was in the front of the right thigh, at the outside near the hip.
The two entrance wounds in Chau’s back corresponded to two exit wounds in the right front side of his chest. The bullet that entered Chau’s upper back traveled downward and to the right, passing through the blood vessels supplying the right arm, and then left his body altogether. The bullet that entered the left side of Chau’s back traveled a little up and to the right, and went through his spine, left lung, pericardial sac, aorta, esophagus, and breastbone. It created an exit wound, but remained in Chau’s body, and was recovered during the autopsy. The bullet that struck Chau’s thigh traveled downward and to the left, passing through muscle and into his right femur. It lodged in that bone, and was also recovered in the autopsy. The pathologist who did the autopsy opined at trial that Chau died from multiple gunshot wounds, and was not asked to specify the cause of death more precisely than that. At the time of his death, Chau had a blood-alcohol level of.23 percent.
Appellant was arrested on July 18, 2006. Steven was arrested two days later. When the police searched Steven’s car, they found five guns. One was a black nine-millimeter semiautomatic handgun with wood grips (the black gun). Another was a silver semiautomatic handgun with a pearl handle (the silver gun). The black gun was introduced at trial as the prosecution’s exhibit 19-A, and was a FEG nine-millimeter Luger semiautomatic pistol with a wooden grip. Tony testified that it was similar to the one Johnnie fired at the coffee shop. The silver gun was introduced at trial as the prosecution’s exhibit 20-A, which is described in the exhibit list as having a pearl handle; this gun was a Star nine-millimeter Luger semiautomatic pistol.
At trial, appellant identified the silver gun as the one Johnnie handed him on the night Chau was killed, which he had left in Steven’s car after they drove away; appellant denied ever seeing the black gun during that evening. He also testified that the black gun was the same gun from which Johnnie fired a bullet at the ceiling during the coffee shop incident several weeks earlier.
The nine casings and three bullets found at the scene and in Chau’s body were determined to have been fired by two different nine-millimeter handguns. Eight casings were fired from the black gun, and one from the silver gun. Two of the bullets—the one found at the scene, and the one found in Chau’s chest—came from the black gun.
The bullet taken from Chau’s hip did not have sufficient markings to trace it with certainty. The prosecution’s ballistics expert opined that it definitely did not come from the black gun. Its markings were consistent with those made by guns of the silver gun’s class, but it could not be positively identified as having been fired by that specific gun. None of the other guns found in Steven’s car could have produced any of the bullets or casings. There was no evidence regarding the presence, at the time Chau was killed, of any other gun capable of producing the bullet found in Chau’s leg.
Procedural History
On November 28, 2006, appellant, Steven, and Johnnie were charged by information with various crimes arising out of the confrontation in which Chau was killed and My Ha was injured. Appellant was charged in count one with the first degree murder of Chau (Pen. Code, § 187, subd. (a) ), and in count two with attempted murder of My Ha (§§ 187, subd. (a); 664, subd. (f)). In both counts, appellant was charged with personally and intentionally discharging a firearm, causing great bodily injury or death. (§§ 12022.5, subd. (a)(1); 12022.53, subds. (b)-(d); 12022.7, subd. (a).)
Before appellant was tried, Steven pled guilty to a felony charge of being an accessory (§ 32), and received a three-year sentence. Johnnie’s case was still unresolved at the time of appellant’s trial.
All further statutory references are to the Penal Code unless otherwise noted.
Appellant’s jury trial began on February 6, 2007. The case went to the jury on March 8, 2007. On March 13, 2007, the jury found appellant guilty of second degree murder as to Chau, but acquitted him of attempted murder as to My Ha. The jury found all of the firearm allegations true as to the count on which it convicted appellant.
Appellant retained different counsel, and on October 17, 2007, he moved for a new trial. The ballistic evidence was released to appellant’s counsel for retesting, apparently with no helpful results, and at a hearing on November 30, 2007, appellant’s trial counsel testified in connection with the motion for new trial. The trial court denied the motion on February 1, 2008. On the same day, the court sentenced appellant to 40 years to life in prison. Both the trial court and the prosecutor indicated that if appellant’s prison conduct is exemplary, he should be paroled as soon as he is eligible. Appellant filed a timely notice of appeal on February 26, 2008.
Discussion
The prosecution argued to the jury that it could convict appellant of the murder of Chau based on either or both of two theories. The first theory (the implied malice theory) was that appellant, acting with conscious disregard for human life (implied malice), intentionally discharged a firearm with the intent to assault Tung, but ended up hitting Chau instead (transferred intent). The second (the aiding and abetting theory) was that appellant fired the gun in order to aid and abet Steven’s battery of Chau, and that Chau’s death was a natural and probable consequence of Steven’s battery.
Failure to Instruct on Superseding Causation
The evidence at trial indicated that Chau received two bullet wounds in his back from the black gun (most likely fired by Johnnie), and a single bullet wound in his thigh from a different gun (most likely the silver gun fired by appellant). The only evidence as to the cause of Chau’s death was the opinion of the prosecution’s pathologist that Chau died from multiple gunshot wounds. The pathologist was not asked to opine whether the wound in Chau’s thigh, in and of itself, would have been sufficient to kill him.
In her closing argument to the jury, appellant’s trial counsel explained that she had not asked this question “because in a million years I never would have thought that it would have been argued that the hip shot was the cause of death.” Pointing out that the prosecution also had failed to elicit any clarification, appellant’s trial counsel asked the jury to infer from the pathologist’s testimony about the location and severity of the wounds that “the two bullets that [went] through [Chau’s] chest cavity [were] the ones that killed him, not the hip shot,” and thus that appellant did not kill anyone. In finding appellant guilty of Chau’s murder, the jury implicitly determined that this inference was not supported by the evidence, and found that Chau died from the combined effect of all of his wounds together. It is not our province to question that factual conclusion.
Appellant argues, however, that the trial court erred in failing to give the jury an instruction on superseding causation. The trial court instructed the jury with CALCRIM No. 240, which is the general instruction on causation in criminal cases. Appellant’s trial counsel did not object to this instruction, nor did she request that the trial court modify it or give any additional instruction regarding causation. Accordingly, as appellant implicitly recognizes, any argument that CALCRIM No. 240 was incomplete or unclear has been waived on appeal. (People v. Alvarez (1996) 14 Cal.4th 155, 221-222 & fn. 27; People v. Lang (1989) 49 Cal.3d 991, 1024 [“A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.”].)
As given in this case, CALCRIM No. 240 read as follows: “An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. 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 the circumstances established by the evidence. [¶] There may be... more than one cause of death. An act causes death, only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not have to be the only factor that causes the death.”
Appellant seeks to overcome the waiver obstacle by arguing that the trial court had a duty to give an additional instruction on superseding causation sua sponte, because the evidence would have permitted the jury to find that Johnnie’s act of shooting Chau in the back was an intervening or superseding cause that absolved appellant of responsibility for Chau’s death. We assess this contention in the context of the law defining intervening causation in the context of criminal liability. “To relieve a defendant of criminal liability, an intervening cause must be an unforeseeable and extraordinary occurrence. [Citation.] The defendant remains criminally liable if either the possible consequence might reasonably have been contemplated or the defendant should have foreseen the possibility of harm of the kind that could result from his act. [Citation.]” (People v. Crew (2003) 31 Cal.4th 822, 847.) Worded differently, “ ‘[W]here [an] injury was brought about by a later cause of independent origin... [the question of proximate cause] revolves around a determination of whether the later cause of independent origin, commonly referred to as an intervening cause, was foreseeable by the defendant or, if not foreseeable, whether it caused injury of a type which was foreseeable. If either of these questions is answered in the affirmative, then the defendant is not relieved from liability towards the [victim]; if, however, it is determined that the intervening cause was not foreseeable and that the results which it caused were not foreseeable, then the intervening cause becomes a supervening cause and the defendant is relieved from liability for the [crime].’ [Citations.]” (Pappert v. San Diego Gas & Electric Co. (1982) 137 Cal.App.3d 205, 210, italics in original; see also People v. Brady (2005) 129 Cal.App.4th 1314, 1326.)
As the California Supreme Court explained in People v. Cervantes (2001) 26 Cal.4th 860, “ ‘ “If an intervening cause is a normal and reasonably foreseeable result of defendant’s original act the intervening act is ‘dependent’ and not a superseding cause, and will not relieve defendant of liability.... ‘The consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough.... The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act.’ [Citation.]” [Citation.]’ [Citations.]” To break the chain of causation, the intervening act must be “ ‘ “unforeseeable [and] an extraordinary and abnormal occurrence....” [Citation.]...’ ” (Id. at p. 871.)
In People v. Cervantes, supra, 26 Cal.4th 860, the defendant, a gang member, shot and wounded a member of a different gang, prompting other members of the victim’s gang, outside the defendant’s presence, to kill a member of the defendant’s own gang in revenge, even though the victim had not been present at the original confrontation. The defendant was convicted of the murder of his fellow gang member on a provocative act theory. The Supreme Court reversed the conviction, holding that the evidence was “insufficient as a matter of law to establish the requisite proximate causation to hold defendant liable for murder.” (Id. at p. 874.) The issue in that case, however, was the sufficiency of the evidence as a matter of law to constitute proximate cause, not the adequacy of the jury instructions. Accordingly, nothing in People v. Cervantes required the trial court here to give a superseding cause instruction, in addition to CALCRIM No. 240, even though appellant’s counsel did not request that it do so.
Moreover, in the companion case of People v. Sanchez (2001) 26 Cal.4th 834, 848-849, the Supreme Court held that the defendant’s act of engaging a third party in a gunfight was properly determined to be the proximate cause of the victim’s death, even though the victim was shot by the third party and not by the defendant. In her concurring opinion in that case, Justice Kennard characterized a superseding or intervening cause as one that is “ ‘so far beyond the risk the original [wrongdoer] should have foreseen that the law deems it unfair to hold him responsible.’...” (Id. at p. 855 (conc. opn. of Kennard, J.), quoting Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 573, fn. 9; see also People v. Roberts (1992) 2 Cal.4th 271, 320, fn. 11 [jury may properly find proximate cause unless “undisputed evidence... reveal[s] a cause so remote that... no rational trier of fact could find the needed nexus.”].) Thus, in People v. Sanchez, the death of a bystander from a shot fired by the defendant’s opponent was held to have been foreseeable from the gunfighter’s point of view. Similarly, here, Chau’s death from the combined effect of appellant’s shot and Johnnie’s was not “so far beyond the risk [that appellant] should have foreseen” as to require a sua sponte proximate cause instruction.
In People v. Fiu (2008) 165 Cal.App.4th 360, this court rejected the same argument that appellant makes here, i.e., that the trial court had a sua sponte duty to give an intervening cause instruction. We held that although “causation instructions must be given sua sponte if called for under the facts of the case,” the trial court fulfills this duty, and need not do more, if it gives an instruction which “correctly indicates, in essence, that liability would not be cut off for an intervening act if the victim’s death was nevertheless a ‘direct, natural and probable consequence’ of defendant’s original act....” (Id. at p. 372, quoting CALJIC No. 3.40.) In People v. Fiu, the trial court gave CALJIC Nos. 3.40 and 3.41 (see 165 Cal.App.4th at p. 369), and this court held that these instructions were sufficient. As appellant’s reply brief acknowledges, CALCRIM No. 240, which the trial court gave in this case, is equivalent to a combination of these two instructions.
Appellant argues that People v. Fiu, supra, 165 Cal.App.4th 360, is distinguishable on its facts, because in Fiu, this court held that “[t]here was no superseding intervening act.” (Id. at p. 373.) In People v. Fiu, the defendant discouraged some teenage members of his gang from shooting a member of a rival gang, but encouraged them to join with him in beating the victim until he lost consciousness. The defendant and the teenagers then abandoned the victim. Soon after that, another man (the codefendant) arrived on the scene. When the teenagers showed the victim to the codefendant, the latter said that he wanted to kill the victim. The codefendant and the teenagers then beat the victim again; one of them smashed his head against a parked car, and the codefendant stabbed him. (Id. at pp. 367-368, 372-373.) The doctor who performed the autopsy on the victim testified that the cause of death was blunt force trauma to the head from multiple impacts, and that no single blow, standing alone, would have been sufficient to cause all of the damage. The doctor opined that at least half a dozen separate blows had combined to cause the victim’s death. (Id. at p. 373.) Under these facts, this court concluded that because the defendant’s acts of beating the victim contributed to causing the victim’s death, the defendant was not absolved of responsibility by the fact that the victim was beaten again, shortly afterwards, at the instigation of the codefendant.
In our view, this case is factually congruent with People v. Fiu, supra, 165 Cal.App.4th 360, with respect to the relationship between the defendant’s actions, the actions of third parties, and the victim’s death. The victim’s death in Fiu was a foreseeable, natural result of the defendant’s severe beating, and the fact that the second beating was a contributing cause of death did not absolve the defendant. Similarly, here, Chau’s death was a foreseeable, direct, natural consequence of appellant’s act of firing the silver gun and hitting Chau, so that appellant was responsible for it even if the bullets that Johnnie fired from the black gun also contributed to Chau’s death. (See id. at pp. 375-376, discussing People v. Crew, supra, 31 Cal.4th 822.)
Nothing in People v. Hebert (1964) 228 Cal.App.2d 514, the case on which appellant primarily relies, changes our conclusion that the facts of this case did not require the trial court to give a separate superseding cause instruction sua sponte. In People v. Hebert, the defendant punched the victim in the face, knocking him off the bar stool on which he was sitting, and causing him to hit his head sharply on the bar room floor. Half an hour later, the victim fell backward at the police station, hitting his head on the floor again. The victim died at the hospital the next morning, and the defendant was charged with murder. The medical evidence was that the injuries the victim incurred at the bar probably would have been sufficient in and of themselves to cause his death, but the testifying doctor declined to express any certainty about this conclusion. Given these facts, the appellate court held that it was “vitally important that the jury be adequately and correctly instructed on the doctrine of proximate cause.” (Id. at p. 519.) The proximate cause instructions given in that case, though not incorrect, were held to be inadequate for that purpose, because they were confusingly worded and did not focus the jury’s attention on the foreseeability of the victim’s subsequent injuries at the police station. (Id. at pp. 519-521.)
In the present case, Chau died from the combined effect of appellant’s shot plus Johnnie’s shots a few moments later. This result was far more foreseeable than the death of the bar brawl victim in People v. Hebert, supra, 228 Cal.App.2d 514 from the combined effect of the defendant’s punch plus the victim’s subsequent head injury, incurred over half an hour later, from a different cause and in a different location.
Moreover, as Division Three of this court has noted, the concern about jury confusion that formed the basis for the holding in People v. Hebert, supra, is inapplicable when the trial court’s instructions clearly focus the jury on the need to determine whether the victim’s death was within the scope of “the reasonably foreseeable consequences of [the defendant’s] conduct, rather than disconnected happenings.” (People v. Brady (2005) 129 Cal.App.4th 1314, 1330.) CALCRIM No. 240, which the trial court gave in the present case, does exactly that; it focuses the jury’s attention on foreseeability, in simple and clear terms, by defining “natural and probable consequence” as “one that a reasonable person would know is likely to happen if nothing unusual intervenes.” Thus, both the facts and the nature of the jury instructions given distinguish the present case from People v. Hebert.
Mutual Combat Instructions
The thrust of appellant’s defense was that he fired the gun in self-defense, because he was afraid that Tung was about to attack him with a pipe or similar weapon, and possibly also with a gun. After giving standard self-defense instructions, the trial court instructed the jury regarding mutual combat based on CALCRIM No. 3471. Because this instruction was given in conjunction with the implied malice theory, and before the court introduced the aiding and abetting theory, and because the court used the term “defendant” instead of “perpetrator” in the instruction, it is clear from the context that this instruction was intended to apply to appellant’s self-defense claim, rather than to Steven’s struggle with Chau as it related to the aiding and abetting theory.
Later on, in introducing the instructions relating to the aiding and abetting theory, the trial court indicated that it would use the term “perpetrator” to refer to the person alleged to have committed the crime that appellant was alleged to have aided and abetted.
CALCRIM No. 3471 includes several optional provisions intended for use in particular circumstances. The actual instruction given in this case, with the optional language included by the trial court shown in italics, was as follows: “A person who engages in mutual combat or who is the first one to use physical force has a right to self-defense only if: [¶] One, he actually and in good faith tries to stop fighting; [¶] Two, he indicates by word or by conduct to his opponent in a way that a reasonable person would understand that he wants to stop fighting and that he has stopped fighting; [¶] And three, he gives his opponent a chance to stop fighting. [¶] If a person meets these requirements he then has a right to self-defense if the opponent continues to fight. If you decide that the defendant started the fight using nondeadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to stop fighting.” (Italics added.)
Appellant contends that it was error to give this mutual combat instruction with the optional language included because it was irrelevant to the facts. There was no evidence that appellant engaged in mutual combat, or in any other fight, and in any event he was not an initial aggressor, thus making the optional language even more irrelevant and erroneous.
Forfeiture of Issue
Appellant’s trial counsel affirmatively requested that this instruction be given if the court instructed on murder, and did not ask the trial court to omit any of the optional material or otherwise modify the instruction in any particular respect. When the trial court reviewed the proposed instructions on the record with both counsel, and asked if there were any comments on the series that included CALCRIM No. 3471, appellant’s counsel made no argument, but simply responded “Submitted.”
Respondent therefore contends that the issue has been forfeited. Appellant disagrees, on two grounds. First, appellant points out that the trial court discussed the jury instructions with both counsel in chambers, off the record, before going back into open court and memorializing the outcome of those discussions on the record. Thus, appellant argues that trial counsel’s on-the-record response did not necessarily indicate acquiescence in the trial court’s decision to deliver the instruction with the optional portions included.
We question whether forfeiture is the correct characterization of the posture of this issue. At least arguably, appellant’s trial counsel’s affirmative request for the instruction, without requesting the omission of the optional language, means that any error in giving it was invited. (See, e.g., People v. q Beames (2007) 40 Cal.4th 907, 927-928.) Respondent has not argued invited error, however, so we have analyzed the issue in terms of forfeiture.
We might give this argument some weight if trial counsel had first argued on the record that the court should omit the optional provisions from CALCRIM No. 3471, and only later indicated that the issue was “submitted.” (See People v. Woods (1991) 226 Cal.App.3d 1037, 1051, fn. 1 [once objection to jury instruction has been made, refraining from renewing it, and submitting to judge’s adverse ruling, does not waive issue for appeal].) In the absence of any such argument in the trial court record, however, we cannot simply read it into the ambiguous term “submitted.” As the trial court noted at the outset of the on-the-record discussion, when this method of settling jury instructions is used, then “if there are objections to... any particular instruction, [the parties and the court] should memorialize those” on the record. If appellant’s trial counsel did in fact make objections in chambers to the mutual combat instruction, it was incumbent on her to follow the court’s admonishment about memorializing those discussions on the record. As she did not do so, any off-the-record objections she may have made were not preserved for appeal.
Second, appellant points out that as to certain other instructions, trial counsel expressly requested that optional provisions be given, and asks this court to conclude that counsel thereby implicitly objected to the inclusion of the optional language in CALCRIM No. 3471. We decline the invitation. Trial judges cannot be expected to read the minds of the lawyers who try cases before them. When counsel requests a standard instruction, but wishes the trial court to modify it in a particular way, whether by omitting optional provisions or otherwise, it is incumbent upon counsel to communicate the proposed modifications to the trial court in a clear and explicit manner. If this is not done, the issue is forfeited. (See People v. Hillhouse (2002) 27 Cal.4th 469, 503; People v. Hart (1999) 20 Cal.4th 546, 622 [where instructions correctly stated law, if defendant wanted additional, clarifying instructions, he should have requested them]; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163 [where instruction was generally an accurate statement of law, but was misleading in defendant’s case, and defendant did not request modification or clarification, defendant forfeited contention on appeal that giving instruction constituted error]; People v. Woods, supra, 226 Cal.App.3d at pp. 1054-1055.)
Because appellant’s trial counsel failed to preserve the issue for appeal, we cannot find reversible error based on the inclusion of the mutual combat instruction, and in particular the optional language, unless we either determine that the evidence affected appellant’s substantial rights (§ 1259), or accept appellant’s alternative argument that his trial counsel rendered ineffective assistance by failing to object to the instruction.
Effect on Appellant’s Substantial Rights
“ ‘Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim —at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was.’...” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1087, quoting People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) “The question is whether the error resulted in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818....” (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) “In evaluating a claim the jury could have misconstrued an instruction, the test on review is ‘ “ ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” ’ [Citations.]” (Id. at p. 938.)
In the present case, appellant does not contend that the mutual combat instruction was an incorrect statement of the law. Rather, as we have already noted, he contends that it was irrelevant to the facts, because there was no evidence that appellant engaged in mutual combat, or in any other fight, and in any event he was not an initial aggressor, thus making the optional language even more irrelevant.
Giving a correct instruction that is not supported by the evidence is error. In the present case, however, as respondent points out, the trial court also instructed the jury, based on CALCRIM No. 200, that “[s]ome of these instructions may not apply, depending on your findings about the facts of the case”; that the inclusion of a particular instruction should not be taken to mean that the court was “suggesting anything about the facts”; and that the jury should decide first what the facts were, and then “follow the instructions that do apply to [those] facts.”
Appellant points to nothing in the record that indicates that the jury did not follow this instruction. On the contrary, in a letter to the trial court in connection with appellant’s sentencing, appellant’s trial counsel wrote that based on her posttrial conversations with jurors, the jury appeared to have rejected appellant’s self-defense claim on the basis that the need for appellant to defend himself against an assault by Tung had already ended by the time he fired the gun. Thus, to the extent that the record shows anything regarding this issue, it is that the jurors rejected the self-defense claim not because they mistakenly applied CALCRIM No. 3471, but because they credited Tung’s testimony that he stopped coming toward appellant, and crouched down next to a car, before the first shot was fired. Accordingly, we are not persuaded that any error in giving the mutual combat instruction resulted in a miscarriage of justice, or that there is a reasonable likelihood that the jury misconstrued the irrelevant instruction and applied it in an unconstitutional manner.
Ineffective Assistance of Counsel
Appellant argues that if his claim of error in regard to the mutual combat instruction is deemed to have been forfeited due to his trial counsel’s failure to object, then his conviction should be reversed on the basis of ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim, the defendant must demonstrate by a preponderance of the evidence both (1) that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) that there is a reasonable probability that the verdict would have been more favorable to the defendant if counsel’s performance had not fallen below the applicable standard. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Weaver (2001) 26 Cal.4th 876, 925; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.)
Reviewing courts defer to trial counsel’s reasonable tactical decisions, and “should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.” (People v. Scott (1997) 15 Cal.4th 1188, 1212; see People v. Jones (2003) 29 Cal.4th 1229, 1254; People v. Garvin (2003) 110 Cal.App.4th 484, 490.) Moreover, when a claim of ineffective assistance of counsel is raised on direct appeal, the conviction will be reversed only if the record affirmatively discloses that counsel had no rational tactical purpose for the challenged act or omission. (People v. Fosselman (1983) 33 Cal.3d 572, 581; see also People v. Hart (1999) 20 Cal.4th 546, 623-624 [“ ‘To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation....’ [Citation.]”].)
Appellant testified that after pointing the gun at Tung, he backed away, and only fired the gun because Tung still kept approaching him. Appellant’s counsel testified at the hearing on appellant’s motion for new trial, but nothing in that testimony casts light on her thinking as to the mutual combat instruction. Given this state of the record, we cannot conclude that appellant’s counsel lacked any rational tactical purpose in requesting the mutual combat instruction, and in not objecting to the inclusion of its optional provisions. Accordingly, appellant’s claim of ineffective assistance of counsel as to the mutual combat instruction must be rejected for the purposes of this direct appeal.
Challenges to Aiding and Abetting Theory Based on Battery
As already noted, the prosecution’s second theory as to appellant’s culpability—the aiding and abetting theory—was premised on the contention that at the time appellant fired the gun, he was aiding and abetting Steven’s commission of a battery against Chau. Appellant challenges this theory on several grounds.
His first contention is that the prosecution failed to introduce sufficient evidence of the underlying battery by Steven to justify the jury’s verdict on this theory. Specifically, appellant points out that none of the witnesses who saw the encounter between Steven and Chau testified that Steven touched Chau before Chau touched Steven. On the contrary, both Tung and appellant, who were the only witnesses who testified about how the confrontation began, testified that Chau grabbed Steven first. Thus, appellant argues, it is clear from the record that any touching of Chau by Steven was in self-defense, and therefore was legally justified and not a battery.
We find appellant’s argument on this point persuasive. The prosecution failed to present evidence sufficient to justify a reasonable jury in finding that Steven committed a battery on Chau, rather than engaging in a lawful effort to defend himself against Chau’s battery of him. Appellant also argues that there was insufficient evidence to prove that Chau’s murder was a natural and probable consequence of the battery, and that the trial court’s instructions on battery and malice were inadequate. Because the evidence was insufficient to establish the predicate for the prosecution’s aiding and abetting theory, we need not and do not address these arguments on the merits.
Our acceptance of appellant’s challenge to the evidence supporting the aiding and abetting theory does not require us to reverse his conviction, however. Under the rule laid down by our Supreme Court held in People v. Guiton (1993) 4 Cal.4th 1116 (Guiton), when a jury is instructed (correctly or incorrectly) on a factual theory not supported by the evidence (here, the aiding and abetting theory), and the jury is also instructed, correctly, on a factual theory that is supported by the evidence (here, the implied malice theory), any error in sending the unsupported theory to the jury is harmless, and does not require reversal of the conviction, unless the record affirmatively demonstrates that the jury relied on the incorrect theory. (See People v. Hughes (2002) 27 Cal.4th 287, 350-353; People v. Poindexter (2006) 144 Cal.App.4th 572, 576, 586-587.)
This point is squarely raised in respondent’s brief. Appellant’s opening brief does not anticipate it, and his reply brief does not respond to it directly. The issue might therefore be deemed waived, but even considered on the merits, respondent’s position that the error was harmless is correct.
Appellant’s reply brief misconstrues respondent’s argument. Appellant characterizes respondent as putting forth the theory that in firing the gun, appellant was aiding and abetting Johnnie, rather than Steven. If respondent were actually making this argument, we would agree with appellant that it cannot be raised for the first time on appeal.
There is nothing in the jury’s verdict itself that is inconsistent with the jury’s having found appellant guilty on the implied malice theory. More significantly, in appellant’s trial counsel’s letter to the court about her posttrial conversations with jurors, she stated that “it appeared that the jury found [appellant] guilty of second degree murder based on an implied malice theory.” Thus, if anything, the record indicates that the jury relied on the implied malice theory rather than the aiding and abetting theory. Accordingly, under Guiton, supra, 4 Cal.4th 1116, the lack of sufficient evidence to support the prosecution’s aiding and abetting theory does not require the reversal of appellant’s conviction.
Cumulative Error
Appellant’s final argument is that the cumulative effect of the trial court’s asserted errors deprived him of due process and a fair trial. We have found no error, however, that affects the validity of appellant’s conviction on the implied malice theory. The remaining asserted errors relate solely to the aiding and abetting theory. Accordingly, appellant’s cumulative error argument is moot unless the asserted errors on the aiding and abetting theory somehow affected the outcome of the trial as to the implied malice theory. We find this premise unpersuasive.
As to the implied malice theory, appellant admitted in his testimony that he fired a shot from a loaded gun on a dark street near a group of at least five people, two of whom were actively engaged in a physical struggle. There was sufficient evidence to support the jury’s implied findings that the bullet fired from appellant’s gun hit Chau in the leg and contributed to causing his death, as well as the jury’s rejection of appellant’s self-defense claim on the basis of Tung’s testimony. Under the circumstances, we perceive no fundamental unfairness or violation of due process in appellant’s conviction of second degree murder on an implied malice theory.
Disposition
The judgment is affirmed.
We concur: REARDON, J., SEPULVEDA, J.