People v. Hin

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MAO HIN,

Defendant and Appellant.

S141519

San Joaquin County Superior Court

SF090168B

February 3, 2025

Justice Liu authored the opinion of the Court, in which Chief

Justice Guerrero and Justices Corrigan, Kruger, Groban,

Jenkins, and Evans concurred.

PEOPLE v. HIN

S141519

Opinion of the Court by Liu, J.

Defendant Mao Hin was sentenced to death in 2005 for the

murder of Alfonso Martinez during the commission of a robbery

and kidnapping, and while participating in, and for the benefit

of, a criminal street gang (count 1). (Pen. Code, §§ 187, subd. (a),

189, 190.2, subd. (a)(17)(A), (B), (22); all undesignated statutory

references are to the Penal Code.) The jury also convicted Hin

of the willful, deliberate, and premeditated attempted murder

of Deborah Pizano during the same incident (count 3) (§§ 664,

187, subd. (a)) and for the second degree robbery of both

Martinez and Pizano (counts 2 and 4) (§ 211), and it found true

allegations that a principal personally and intentionally

discharged a firearm leading to death or great bodily injury

during the commission of those crimes (§ 12022.53, subds. (d),

(e)). The jury found not true that the murder, attempted

murder, and robberies were committed for the benefit of a

criminal street gang. (§ 186.22, subd. (b)(1).)

In addition, the jury convicted Hin of five counts of willful,

deliberate, and premeditated attempted murder (counts 5

through 9) (§§ 664, subd. (a), 187, subd. (a)) for a separate

incident involving a drive-by shooting, and it found true

allegations that a principal personally and intentionally

discharged a firearm causing great bodily injury during each of

the attempted murders (§ 12022.53, subds. (d), (e)). The jury

also convicted Hin of two counts of shooting at an inhabited

dwelling (counts 10 and 12) (§ 246), and one count of shooting at

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an occupied vehicle (count 13) (§ 246) during that same incident.

The jury found true allegations that each of these crimes was

committed for the benefit of a criminal street gang. (§ 186.22,

subd. (b)(1).) Finally, the jury found Hin guilty of one count of

being an active participant in a criminal street gang during the

commission of the drive-by shooting (count 15). (§ 186.22,

subd. (a).) This appeal is automatic. (§ 1239, subd. (b).)

For the reasons below, we reverse the six counts of

attempted premeditated murder and the one count of being an

active participant in a criminal street gang. We further vacate

the gang-murder special-circumstance true finding. We affirm

the judgment in all other respects.

I. FACTS

A. Guilt Phase Evidence

The charges against Hin concerned two separate events:

a murder and robbery in American Legion Park on October 10,

2003, and a drive-by shooting on Bedlow Drive on November 8,

2003. Both sets of charges included gang enhancements. In

order to establish a predicate for those enhancements and to

provide context and motive for the charged crimes, the

prosecution introduced evidence of a third shooting on Hammer

Lane that occurred one month before the first of the charged

crimes.

1. Uncharged Shooting on Hammer Lane

On the evening of September 12, 2003, shots were fired

from a blue Honda Accord into a Mitsubishi at the intersection

of Lan Ark Drive and Hammer Lane in Stockton. There were

three passengers in the Mitsubishi: one was killed; the second,

the driver, was shot in the face; and the third was shot in her

spine and paralyzed for three months before she regained the

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ability to walk, albeit with a limp. The victims testified that the

car was sometimes used by the passenger’s brother, whom police

said was a member of the Asian Boyz Gang (ABZ). The driver

of the Mitsubishi identified the shooter as Rathana Chan, also

known as “T-Bird.” Among other evidence, detectives recovered

a .22-caliber shell casing in the gutter just west of the

intersection. Police did not find any weapons in the victims’ car

or any indicia of gang involvement.

Two days later, police discovered a blue Honda Accord in

the parking lot of Chan’s apartment that was later identified by

one of the victims of the Hammer Lane shooting. A search of

that vehicle revealed latent fingerprints later matched to Chan

and codefendant Rattanak Kak. None of the prints matched

Hin, but Hin later admitted in a statement to police that he was

in the Honda Accord that evening. The prosecutor’s theory was

that Hin, Chan, and Kak, all members of the Tiny Rascals Gang

(TRG), fired on the Mitsubishi believing it to be driven by a

member of their rival gang, ABZ.

Although Hin and Kak were originally charged with this

offense, all charges were later dropped. Police obtained an

arrest warrant for Chan but were unable to locate him by the

time of trial. The facts of the Hammer Lane shooting were

offered at the guilt phase of the present case solely as a predicate

offense for the gang allegations relating to the charged crimes.

2. Murder and Robbery at American Legion Park

Around 9:30 p.m. on October 10, 2003, Debra Pizano and

Alfonso Martinez were walking together in American Legion

Park when they saw two individuals coming toward them. One

individual, later identified as Kak, pulled a gun, and pointed it

toward their heads. The second individual, later identified as

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Hin, said, “All right. All right. All right. Give me all your

money.” The couple gave their money and Pizano’s purse to Hin,

who then instructed the couple to go farther into the park where

it was darker. One of the individuals shoved Martinez. When

they reached the bottom of the hill, Hin and Kak took Martinez’s

clothes and Pizano’s watch. Hin and Kak started to walk away,

then Hin made a comment about how it was dangerous to walk

in the park late at night. Both Hin and Kak started laughing.

Then Pizano heard four gunshots. Martinez fell down, and

Pizano heard him trying to breathe. Pizano felt blood on her

head.

Paramedics declared Martinez dead at the scene. The

autopsy revealed two gunshot wounds, one entering Martinez’s

left upper back and one entering the front of his left thigh.

Pizano was shot in the head and leg but survived.

At the hospital shortly after the shooting, Pizano told

officers that only one of the two individuals had a gun, and that

the same individual had the gun throughout the incident while

the other one spoke. Pizano was not able to identify either Hin

or Kak in a photographic lineup and maintained that both

suspects were Black and between 5 feet10 inches and 5 feet 11

inches tall. Hin is Cambodian; at the time of his arrest, he was

5 feet 7 inches tall, 145 pounds, with black hair, brown eyes, and

a medium skin tone. A few days before she testified, Pizano met

with the prosecutor and for the first time stated that a

photograph of Hin looked similar to the “guy that was talking”

on the night in the park.

3. Drive-by Shooting on Bedlow Drive

On the evening of November 8, 2003, approximately 13

people were gathered in a residential carport on Bedlow Drive,

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drinking beer and listening to music. The carport encompassed

three adjoining residences. One witness in the carport reported

that a car approached slowly and then one or more occupants

opened fire. Witnesses reported hearing 16 or more shots in one

or two sets. One witness thought all of the shots came from a

single gun, though “[i]t could be two,” while another testified

that the shots may have been fired from two different guns. One

witness described 20 to 30 shots from three different guns. Two

witnesses observed what they thought was a grey van driving

away after the shooting stopped; another described a van that

was “maybe white, blue, brown.”

Police observed gunshot damage and bullet holes to the

structure within two of the attached residences, both of which

were occupied at the time of the shooting. A bullet hole was also

found in the rear bumper of one of the cars parked in the carport.

Three individuals in the carport (Ream Voeuth, Nath Sok, and

Krisna Khan) and two in the adjoining residences (Sobin Pen

and Sokhon Hing) sustained gunshot wounds, and Hin and Kak

were charged with the attempted murder of each victim.

Two officers responding to the scene were flagged down by

someone in a blue van with shattered glass and a bullet hole

driving away from the scene. There were three or four

individuals in the van, one of whom was injured and transported

to the hospital. All the damage appeared to have been caused

by shots entering (rather than exiting) the van. Police recovered

several spent bullets inside the van but did not find any weapons

on these individuals or in the van. Police also recovered shell

casings from the middle of the street in front of the carport. No

bullet holes were found on the opposite side of the street, and

officers did not locate any weapons at the scene.

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Later that night, officers located a tan Toyota van

approximately one mile away from the scene that matched the

suspect description. The officer recognized the van as one he

had seen Hin driving in the past and confirmed via DMV records

that it was registered to Hin. The police set up surveillance, and

shortly after midnight, officers observed three individuals get

into the van and start driving. One of the officers recognized

Hin from prior contacts and knew he did not have a valid

California driver’s license; they conducted a vehicle stop on that

basis. Hin was driving, with Kak in the front seat and Sarun

Chun in the back middle seat. At the time of their arrest, Kak

and Chun were both 16 years old and Hin was 19 years old.

Officers observed that Hin appeared to have been drinking.

Behind the driver’s seat, officers found two 9-millimeter shell

casings, consistent with a passenger shooting out of the

passenger side window. The shell casings were partially covered

by trash.

4. Hin’s Statement

Officers arrested Hin after the traffic stop the night of the

Bedlow Drive shooting. Hin denied doing anything wrong and

said he had not fired a gun since he was 15 years old. Officers

later brought Kak into Hin’s interview room; Kak told Hin that

he had already confessed to the shooting. Hin then told officers

that he, Kak, and Chun were confronted by a group of men at a

gas station that evening and that Hin followed that group to

Bedlow Drive where he heard gunshots, at which point Kak

started shooting. Hin claimed he did not know Kak had a gun

until Kak started shooting. In a subsequent interview, Hin

claimed that rival gang members followed him from the gas

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station and then fired at his car. At that time, he also denied

that Chun was in the car.

During the course of a second, videotaped interview,

officers questioned Hin about the shootings at American Legion

Park and on Hammer Lane. Hin admitted he was at the park

and participated in the robbery with Kak because they “needed

money,” but he denied that he was the shooter. Hin explained

that he and Kak had been gambling that evening, and Hin had

lost $10 or $20. According to Hin, he was not present when the

shots were fired. Instead, Hin said he ran up the hill after the

robbery, then heard a shot and threw away most of the stolen

items. Hin initially denied knowing anything about the

Hammer Lane shooting, but eventually admitted he was sitting

in the front passenger seat of the car when two people in the car

began shooting. According to Hin, he was not a member of the

TRG then, but the others in the car were trying to recruit him.

5. Firearm Evidence

Police obtained search warrants for several locations

connected to this investigation. At Hin’s residence, police found

a .12-gauge shotgun shell and a box of .22-caliber ammunition

(among other items, including photographs and writings

indicative of gang affiliation). At Kak’s residence, police found

.44-caliber and .22-caliber ammunition. And at the residence

and in the vehicle of Sokha Bun, officers recovered a nine-

millimeter Beretta, a loaded .44-caliber Redhawk revolver, and

.22-caliber ammunition. Searches of the two other residences

revealed gang-related paraphernalia.

A firearms expert opined that three firearms were

involved in the shooting at Hammer Lane, including a .44-

caliber revolver, a .22-caliber firearm, and either a .357 or .38-

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caliber firearm. The expert testified that the bullet recovered

from the driver was “consistent” with test fires from the .44-

caliber revolver seized from Bun’s residence, but “there was

insufficient detail for an identification.”

Turning to the American Legion Park shooting, the expert

testified that the nine-millimeter shell casing found near

Martinez’s body was fired from the Beretta seized from Bun’s

residence. But the expert added it was possible that a bullet

fragment recovered from Martinez’s body could have come from

a second gun, possibly a revolver.

Finally, the firearm expert matched one of the bullets

recovered from Bedlow Drive, a shell casing recovered from the

street, and the copper jackets found in Hin’s van to the Beretta.

The expert further testified that the .44-caliber ammunition

found at Kak’s residence matched the loaded rounds inside the

.44-caliber revolver found at Bun’s residence. Bun told

detectives that Hin gave the guns to him at a party on the

evening of the Bedlow Drive shooting, asking Bun to hold the

weapons as Hin and Kak had “done some things.” Both the

Beretta and the revolver had been stolen from their previous

owners.

6. Gang Evidence

Detective Kathryn Nance from the Stockton Police

Department testified as an expert on criminal street gangs,

opining that Hin and Kak were members of TRG. According to

Detective Nance, TRG is aligned with various Blood gangs and

is an enemy of “all of the Crip gangs,” including ABZ. She said

that although TRG does not associate with African American

Blood gangs, members of TRG emulate them “in the manner of

dress and the speech and the bandannas, the clothing that’s

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worn” as well as “with the music, rap music.”

Detective Nance testified that TRG’s primary activities

include vehicle thefts, shootings of people and inhabited

dwellings, murder, assaults, and burglaries. She testified that

TRG’s pattern of criminal conduct included a conviction of TRG

member Rathana Chan for sale of a controlled substance in

2001, a sustained juvenile petition for TRG member Sophear

Om for burglary in 2002, the shooting at Hammer Lane, and the

charged offenses at American Legion Park and Bedlow Drive.

Detective Nance offered her opinion that Hin had been a

documented member of the TRG street gang since June 26,

2003, and was an active member at the time of his arrest on

November 9, 2003. The prosecution asked Detective Nance

about the gang significance of several pieces of evidence that

were recovered from a search at Hin’s residence. This evidence

included several photographs of Hin with other TRG members

making hand signs and wearing gray, black, and red clothing.

The evidence also included several “homemade-type” CDs that

were found in Hin’s and Chun’s bedrooms and had “similar”

songs on them. Detective Nance opined that the writing on the

CDs had gang significance.

The prosecution then played one song labeled “Bang,

Bang” from the CD found in Chun’s room. Detective Nance

opined that the song’s reference to being a “straight-up apple

murderer” referred to “shooting, to killing, to eliminating the

enemy, which would, in that case, be ABZ.” She further opined

that the song’s use of the word “n[***]a” was evidence of

Southeast Asian gangs “mimicking the African American slang.”

The song, she testified, was used “for more than just listening

enjoyment”; the song’s lyrics are “like a guidebook for the gang

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members’ rights, rules they live by and ways they carry out and

commit their crimes.”

Detective Nance further opined that the robbery and

murder of Martinez at American Legion Park were gang related

and committed to promote the TRG gang based on several

theories. Her opinion was based on the fact that two members

of the same gang were together, they were motivated to recover

their gambling losses because a gang needs money to survive,

and the gun used was “a TRG gun.” She also opined that it had

been committed to promote the TRG gang as a form of “training”

whereby older members of the gang show younger members how

to commit crime. She also opined that the shooting at Bedlow

Drive was gang related and committed for the benefit of the

gang, based on her belief that the shooting occurred in the

territory of a rival gang and was “a showing of power over the

other gang.” In her opinion, the shooting at Hammer Lane was

also gang related based on the fact that four members of the

TRG were “in an area that’s not typically where they would be,”

and their victims were in a car associated with a “very well-

known” member of the rival ABZ gang.

Finally, Detective Nance opined that Hin was the leader

in the charged incidents involving Kak and Chun. She based

this opinion in part on the fact that Hin was driving the vehicle

for the shooting and that he appeared to be “in charge of the

guns,” crediting as true Bun’s statements that Hin gave the

guns to him after the shooting.

7. Defense Evidence

Codefendant Kak introduced testimony from an

investigator that the light in the park was sufficient to observe

the race, gender, and clothing of the individuals in the park,

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though he acknowledged he had “no idea” what the lighting

conditions were on the day of the crimes.

Hin called his own gang expert, Professor Martin Sanchez

Jankowski. Professor Jankowski opined that the shooting at

American Legion Park was not gang-related or committed for

the benefit of the gang, noting that there was no evidence that

any of the money secured went back to the gang. Instead, he

believed the evidence showed that the shooting was “an

individual act.” Professor Jankowski did not disagree with

Detective Nance’s opinion that Hin was a gang member, and he

agreed that a 19 year old would be a leader over a 16 year old.

He did not review information regarding the drive-by shooting

at Bedlow Drive.

Hin also called his brother, Bo Hin. Bo testified that he

owned the two guns he showed to officers the day they searched

Hin’s residence, explaining that both guns were in his car

because he had just returned from a hunting trip. Bo further

testified that the .22-caliber ammunition found in the house

belonged to him and that he would use it to shoot his friend’s

gun.

B. Penalty Phase Evidence

1. Case in Aggravation

At the penalty phase, the prosecutor relied on the evidence

introduced at the guilt phase, including playing the song “Bang,

Bang” again for the jury and introducing evidence of the

uncharged criminal activity comprising the Hammer Lane

shooting. The prosecutor also introduced evidence of three more

instances of uncharged criminal activity by Hin:

In May 2003, Hin was part of a group that confronted the

manager of the Manchester Arms apartment building, hitting

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him in the face with a beer after the manager asked the group

why they hung around near the apartment gate and scared

people. The prosecution’s gang expert opined that this attack

could be considered gang related and would help establish Hin’s

membership in the TRG gang.

In October 2003, shots were fired from a van at a residence

on Comstock Drive. A witness told police the shots were fired

from a tan minivan and testified that a van identified as Hin’s

could have been the one used in the shooting. Shell casings

collected from the scene were fired by the same Beretta used in

the American Legion Park and Bedlow Drive shootings. The

prosecution’s gang expert testified that the location was

primarily a Blood neighborhood, but that a member of a gang

that was a rival to the TRG lived next door to the shooting.

Also in October 2003, a group dressed in colors consistent

with the TRG gang attempted to force their way into a van near

the Manchester Arms apartment building yelling about the

“OCG,” referring to the Original Crip Gang. After the van was

parked, one of the passengers walked then heard 10 shots, five

of which hit the van. Another one of the passengers identified

Hin as the shooter in a photographic line-up and explained that

he thought the group shot at the van because his brother was a

member of a rival gang. At trial, the passenger was “not really

sure” about the identification but later explained that he was

afraid of testifying and stated he was positive that Hin hit the

car window, pulled a gun, and fired it. A shell casing recovered

from the scene matched the nine-millimeter used in the

American Legion Park and Bedlow Drive shootings. The

prosecution’s gang expert testified that TRG and OCG are

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enemies and that it would be considered disrespectful for a OCG

member to drive into TRG territory.

The prosecutor also offered victim impact evidence.

Pizano testified that she still had scars from the shooting in

American Legion Park, that it was difficult to see Martinez’s

casket and attend his funeral, and that she had to defer plans to

attend college and take time off work as a result of her emotional

trauma. Martinez’s mother, father, siblings, and best friend all

testified about his life and the pain his death had caused.

2. Case in Mitigation

In mitigation, Hin called one of the officers who

investigated the incident at the Manchester Arms apartments.

The officer testified that the victim mentioned Hin’s name but

did not tell him that Hin was the individual who struck him in

the face or threw the beer bottle.

A school district outreach worker testified that she knew

Hin as a friendly, quiet, and respectful student. Her last contact

with Hin was in 1998 when he was in eighth grade. A reading

specialist at the school who knew Hin when he was in fourth

through sixth grades described him as a happy, easygoing

student who did not have any behavioral problems.

Hin’s brother testified that Hin worked in a warehouse for

the year prior to his arrest, giving most of his income to his

disabled parents. His brother further testified that he had not

seen anything to indicate that Hin was involved in gangs.

Hin’s sister explained that the family moved to the United

States from the Philippines in 1985, when Hin was a baby.

While they were still in the Philippines, Hin got sick and his

eyes rolled back in his head and his fingers started to “crunch,”

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possibly indicating a seizure. Around the age of five, Hin had

another severe seizure. Hin did not graduate from high school,

though his siblings did. His sister testified that Hin helped a lot

in taking care of their father and that he had given money to the

family. When Hin was 16 years old, he stayed with his sister for

three months. He brought a gun to their home, which his sister

took away and gave to an officer. She did not believe Hin was

involved with gangs. She noted that Hin was shot at some point

and, after that, acted scared and fearful for his life.

Dr. Michael Fraga, a clinical forensic psychologist,

provided a social history of Hin’s life based on conversations

with Hin’s mother and father, siblings, and teachers; Hin’s

academic records; and four separate interviews with Hin. Dr.

Fraga testified that Hin’s parents and older siblings fled from

the turmoil in Cambodia following the Khmer Rouge regime.

After several years in refugee camps in Thailand and the

Philippines, the family immigrated to the United States. His

father never learned to speak English, and his mother spoke

only a little.

According to family members, Hin was born with the

umbilical cord around his neck, though there is no medical

record of whether that affected the level of oxygen to his brain.

Dr. Fraga learned about the seizures reported by Hin’s sister,

but no medical treatment was provided in either instance, and

there appeared to have been no subsequent seizures. Hin’s

grades were average until they abruptly fell off during his

sophomore year of high school, and he was suspended from

school at various points. Dr. Fraga attributed this change to the

decline in Hin’s father’s health. He noted that younger students

referred to Hin as Dumbo and assumed he was part of TRG.

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Dr. Fraga attributed some of Hin’s problems in school to

“his ethnicity as a Cambodian.” Hin also began drinking at age

12 or 13 and was “an established alcoholic” by the age of 15; he

told Dr. Fraga he drank alcohol to cope with stress. Dr. Fraga

opined that Hin had the function and intellect of a 14- or 15 year

old and therefore lacked the “strength and the direction” to lead.

Hin told Dr. Fraga that he was not a gang member, but he

admitted to associating with gang members, explaining that it

was safer for an Asian on the streets to be part of a group. Hin

denied pushing Pizano down the hill at the park but admitted

he told her to go down the hill. He told Dr. Frago that Kak went

crazy and started shooting. He had nightmares about Martinez

and attempted suicide while in custody by taking 20 Tylenol

tablets.

Hin addressed the court at sentencing. He denied

shooting anyone at American Legion Park or Hammer Lane,

adding that he didn’t kill anyone on Bedlow Drive and “didn’t

tell nobody to do nothing.” To the Martinez family, Hin stated:

“I didn’t kill your son. I’m sorry for what’s [sic] happened. It’s

very painful, I understand. I might get on my knee and beg

please. Don’t bring nothing back. But I want you to know

something, I wasn’t the killer.” He explained that his father had

recently died, but he could not cry because he had lost all

feelings. He concluded: “I want you guys to know I’m very

sorry.”

II. PRETRIAL ISSUES

A. Request for Review of Sealed Psychological

Report for Codefendant Saran Chun

Before trial, counsel for then-codefendant Chun declared

a doubt as to Chun’s competency to assist in his defense, and the

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trial court appointed two doctors to examine him. Hin joined a

request by Kak’s counsel to obtain discovery of the doctors’

reports, suggesting they might contain material discoverable

under Brady v. Maryland (1963) 373 U.S. 83. Having reviewed

the reports, the court denied Hin’s request, explaining that

there was “nothing exculpatory” in the records and sealing them

in the court file for appellate review.

Hin asks that we review those records not disclosed to him

by the trial court and assess whether the trial court’s rulings

were proper, or whether the files include materials that should

have been disclosed to Hin as a matter of due process under the

state and federal Constitutions. In particular, Hin contends

that the records would provide material information about

Chun’s mental state at the time of the incidents at issue, as well

as the veracity of the prosecution’s evidence regarding Chun’s

participation in both the charged and uncharged offenses in this

matter. Hin argues our review is necessary to protect his federal

constitutional rights to meaningful and effective review of his

capital murder conviction and death sentence, and to the

assistance of counsel in presenting his postconviction claims.

“Parties who challenge on appeal trial court orders

withholding information as privileged or otherwise

nondiscoverable ‘must do the best they can with the information

they have, and the appellate court will fill the gap by objectively

reviewing the whole record.’ ” (People v. Price (1991) 1 Cal.4th

324, 493; see People v. Landry (2016) 2 Cal.5th 52, 74 (Landry).)

Hin’s arguments reflect a fundamental misunderstanding of the

purpose of an inquiry into a defendant’s competency. The expert

reports here were issued to assist the court in evaluating, among

other things, “[w]hether the defendant, as a result of a mental

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disorder or developmental disability, is able to understand the

nature of the criminal proceedings or to assist counsel in the

conduct of a defense in a rational manner.” (§ 1369,

subd. (b)(1)(B).) Thus, they pertain to Chun’s mental

competency at the time of trial. Hin’s assumption that the report

would address Chun’s mental state at the time of the

commission of the crime is incorrect.

In any event, we have reviewed the record and conclude

that the trial court did not abuse its discretion in rejecting

disclosure of the materials.

B. Motion to Suppress Custodial Statements

Hin argues that the trial court committed constitutional

error in denying his motion to suppress the custodial statements

he made following his arrest. According to Hin, the

interrogating officers did not properly advise him of his rights.

He further argues that his waiver of rights under Miranda v.

Arizona (1966) 384 U.S. 436 (Miranda) was involuntary because

it was obtained by threats of punishment, implied assurances of

leniency, and false promises of confidentiality. At trial, Hin

additionally argued his waiver was not knowing and intelligent

because he was intoxicated at the time of his arrest. We reject

these arguments.

1. Background

After the traffic stop that lead to Hin’s arrest, Hin was

arrested, placed in the rear seat of a patrol car, and advised of

his Miranda rights. Hin said he understood. The arresting

officer told Hin that officers had found some shell casings in the

van, and Hin, after asking what kind of casings, said that he did

not know anything about them. Hin was then transported to

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the police department. According to the police report, Hin was

intoxicated at the time of his traffic stop and arrest.

Approximately one hour later, at 1:30 a.m., the arresting

officer contacted Hin in the holding cell, confirmed that Hin

remembered his rights, then informed Hin that they had

performed a gunshot residue test of his hands and that they

wanted to talk to him about the shell casings. Hin replied that

he had not fired a gun since he was 15 years old and that he had

not done anything wrong. A breath test administered around

the same time showed a blood-alcohol content of 0.08 percent.

A few hours later, around 4:00 a.m., one of the detectives

asked Hin if he remembered his rights. Hin affirmed, and the

detective proceeded to interview Hin regarding his involvement

in the shooting on Bedlow Drive. This first interview concluded

shortly before 5:00 a.m. Hin was transported to the

investigations building of the police department around 6:00

a.m., where he was given an opportunity to rest, provided with

food, and given access to the restroom.

Hin’s second interview began that afternoon around 3:00

p.m., when Hin was again advised of his Miranda rights. Hin

answered questions regarding the shooting at Bedlow Drive,

and eventually admitted that he and Kak were involved. The

interview was recorded and portions were played for the jury.

During this second interview, the detective came to believe that

Hin was involved in the shootings at Hammer Lane and

American Legion Park and made arrangements for the relevant

investigators to interview him.

Hin’s third interview, with a new set of detectives, began

around 7:00 p.m., at which time Hin was apparently asleep.

Detective Youn Seraypheap woke Hin up and asked him if he

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Opinion of the Court by Liu, J.

remembered his rights, saying, “You remember reading your

rights and all that?” to which Hin responded, “Yeah.” The

detectives then questioned Hin about the shooting at Bedlow

Drive and Hin’s gang involvement, then pressed him for details

about the killing at American Legion Park. Detective

Seraypheap said Hin needed to “come clean” about what

happened or else Hin would go to court and “most likely” spend

the rest of his life in prison. The detective added that if Hin

didn’t come clean, he was “going to get fried” because the park

shooting was “the biggest case in Stockton.” Hin responded,

“This is between us?” The detective replied, “Yeah.” Hin asked,

“Nobody is gonna know?” The detective replied “Uh-huh.” Hin

proceeded to explain that he was there but not the shooter; that

they “needed money” so they “robbed them”; that Hin ran up the

hill after the robbery and then heard the shots; and that it was

Kak who killed Martinez.

Finally, the detectives turned to the Hammer Lane

shooting. Hin repeatedly denied knowing anything about the

shooting. He eventually asked the detective, “What we’re

talking about, right here. This is not going to go out to nobody,

is it?” Detective Seraypheap responded, “Me, [Detective John

Reyes] and the [district attorney].” Hin expressed concern about

being a “snitch” and “catch[ing] a bullet to [his] face.” He

eventually admitted that he was sitting in the front passenger

seat of a car with “T-Bird” and “some people from Oakland.”

While stopped at a light, two people in the car began shooting,

one of whom was a TRG member named “Demon.” Hin claimed

that he was not “even TRG yet” at the time of the shooting and

that the other members in the car were trying to recruit him.

Hin explained that he never reported the shooting because he

was scared to say anything.

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On Hin’s motion to suppress, the trial court first found

that the arresting officer properly advised Hin of his

constitutional rights per Miranda and that Hin “made a

knowing, intelligent and voluntary waiver of his rights.” The

court next found that, when the arresting officer later reminded

Hin of his rights and Hin agreed to speak from the holding cell,

that questioning “was within a reasonably contemporaneous

period of the original advisement, approximately one hour

later.” The court also found that Hin’s first interview, conducted

around 4:00 a.m. and during which Hin said yes when the

detective asked if he remembered his rights, was “within a

reasonably contemporaneous period of the original advisement.”

Finally, the court found that Hin was properly advised of his

Miranda rights during his second interview (conducted around

3:00 p.m.) and that his third interview at 7:00 p.m., which

included a reminder of those rights, was reasonably

contemporaneous to that second advisement.

Having found that Hin was properly advised per Miranda

with respect to each phase of custodial interrogation, the trial

court then turned to the question of whether Hin’s waiver was

invalid because he was intoxicated at the time of his arrest or

because it was the product of coercion through threats of

punishment and implied assurances of leniency. The trial court

did not consider whether Hin’s statements were inadmissible

because he requested confidentiality. As to Hin’s intoxication,

the trial court explained that Hin’s blood-alcohol content at the

time of arrest was 0.08 percent, which would be “enough to

arrest a person and charge a person, but it’s barely enough to

convict a person of driving at [.]08 or above.” The court went on

to observe that there was no testimony that defendant was

drunk or did not know what he was doing. In fact, the arresting

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Opinion of the Court by Liu, J.

officer testified that Hin “appeared to answer the questions

appropriately. That he was making sense.” “In other words,”

the court concluded, Hin “exhibited symptoms of having

consumed alcohol, but it doesn’t appear to me that he was so

under the influence that he wouldn’t be able to understand and

waive his Miranda [r]ights.” (Italics added.)

Finally, the court turned to the question of coercion during

Hin’s third interview. Reviewing the video and transcript, the

trial court found “no direct promises of leniency” nor evidence of

a threat sufficient to render the statement involuntary. The

court explained: “And of course, the key phrase is, you need to

come clean on this, all right, because if you don’t you are going

to get fried.” The court explained, “I think it’s important to

watch the video and listen to the video. And the officers were

very low key. It was non-threatening. The officer was not

abusive. There was no force.” Describing the word “ ‘fried’ ” as

“ambiguous,” the court focused on Hin’s demeanor. “So what did

the defendant do after this statement? The defendant never

said anything about the death penalty. I don’t believe there is

any conversation anywhere else about the death penalty. The

defendant didn’t seem afraid. He didn’t seem . . . as though he

was scared of the death penalty. The defendant seemed more

concerned about retaliation from his . . . crime partners than

what was going to happen in court.” On that basis, the court

determined there “was no specific mention of the death penalty,”

concluding that Hin’s custodial statements were voluntary.

2. Analysis

“Prior to any questioning, the person must be warned that

he has a right to remain silent, that any statement he does make

may be used as evidence against him, and that he has a right to

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the presence of an attorney, either retained or appointed.”

(Miranda, supra, 384 U.S. at p. 444; see People v. Sims (1993)

5 Cal.4th 405, 440.) The precise form of advisement is less

important than the requirement that the substance of the rights

be fully communicated. (See People v. Hensley (2014) 59 Cal.4th

788, 809.)

When reviewing constitutional claims regarding Miranda

advisement and waiver, we will accept the trial court’s findings

if supported by substantial evidence but will “independently

determine from the undisputed facts and the facts properly

found by the trial court whether the challenged statement was

illegally obtained.” (People v. Cunningham (2001) 25 Cal. 4th

926, 992; see also People v. Storm (2002) 28 Cal.4th 1007, 1022–

1023.)

Hin raises several bases for his Miranda challenge. First,

he argues that the trial court erred in finding a valid advisement

and waiver of Miranda rights before his third interview. As

relevant here, Hin was provided with a full advisement of his

Miranda rights at the time of his arrest (approximately 12:30

a.m.), was asked if he remembered his Miranda rights while he

waited in a holding cell (approximately 1:30 a.m.), was asked

again if he remembered his rights (approximately 4:00 a.m.),

and was given a second full advisement of his Miranda rights

during his second interview (approximately 3:15 p.m.). Both of

the interviews within this initial period concerned the shooting

on Bedlow Drive. Later that evening (approximately 7:00 p.m.),

a different group of detectives interviewed Hin about the

shootings at American Legion Park and on Hammer Lane.

Before this third interview, Detective Seraypheap asked Hin,

“You remember reading your rights and all that?” and Hin

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Opinion of the Court by Liu, J.

responded, “Yeah.” Hin contends he should have been readvised

in full of his rights before this third interview, which was

conducted by different detectives and concerned different

crimes.

“This court repeatedly has held that a Miranda

readvisement is not necessary before a custodial interrogation

is resumed, so long as a proper warning has been given, and ‘the

subsequent interrogation is “reasonably contemporaneous” with

the prior knowing and intelligent waiver.’ ” (People v. Smith

(2007) 40 Cal.4th 483, 504 (Smith).) We have recognized five

factors to be weighed when considering that totality of

circumstances: “1) the amount of time that has passed since the

initial waiver; 2) any change in the identity of the interrogator

or location of the interrogation; 3) an official reminder of the

prior advisement; 4) the suspect’s sophistication or past

experience with law enforcement; and 5) further indicia that

defendant subjectively understands and waives his rights.”

(Ibid.)

Several factors support the trial court’s finding that

readvisement was not necessary. First, less than four hours

elapsed between the Miranda readvisement given prior to the

second interrogation and the start of the third interrogation. We

have found greater temporal gaps to be reasonably

contemporaneous with prior advisements. (See, e.g., People v.

Pearson (2012) 53 Cal.4th 306, 317 [27 hours]; Smith, supra,

40 Cal.4th at pp. 504–505 [12 hours].) Moreover, although the

interviewers changed, the location of the interview remained the

same between the last full Miranda advisement and the

interview at issue. (Cf. People v. Lewis (2001) 26 Cal.4th 334,

387 [readvisement not necessary with change of interviewers

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Opinion of the Court by Liu, J.

when “subsequent interrogation” is “part of an ongoing and

cooperative process”].) Furthermore, the brief reminder of Hin’s

rights given by Detective Seraypheap at the start of the third

interview weighs against the need for readvisement. (See

People v. Visciotti (1992) 2 Cal.4th 1, 55 [citing with approval an

officer’s question if defendant “still wanted to waive his rights”

as a sufficient reminder]; People v. Pearson, at p. 317 [similar].)

Finally, although it is true that Hin had no prior criminal

justice experience, there are sufficient indications in the record

that he understood and waived his rights throughout his time in

custody. (See People v. Pearson, supra, 53 Cal.4th at p. 317 [the

defendant’s continued contact and cooperation with officers

after initial advisement tended to show he understood and

waived his rights].) Hin expressed no discomfort or

unwillingness to talk, and he affirmatively responded each time

he was asked if he understood his rights. Within a roughly 19-

hour period, Hin was advised of his Miranda rights twice and

reminded of them three times, yet at each juncture he made no

attempt to exercise those rights. For these reasons, we conclude

that, under the totality of the circumstances, the interview at

issue was reasonably contemporaneous with the prior

advisement given to Hin and thus readvisement was not

necessary.

Hin contends that “high court precedent” is in conflict with

our holding in Smith that “a Miranda readvisement is not

necessary before a custodial interrogation is resumed, so long as

a proper warning has been given, and ‘the subsequent

interrogation is “reasonably contemporaneous” with the prior

knowing and intelligent waiver.’ ” (Smith, 40 Cal.4th at p. 504.)

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Opinion of the Court by Liu, J.

Hin presents no persuasive reason why we should reconsider

our “repeated[]” holdings on this issue. (Ibid.)

Second, Hin argues that his Miranda waiver was not

knowing and intelligent in light of his request for

confidentiality. Hin did not raise this specific argument in the

trial court, and the trial court did not discuss what Hin now

contends were requests for confidentiality in its ruling on Hin’s

motion to suppress the custodial statements. “ ‘As a result, the

parties had no incentive to fully litigate this theory below, and

the trial court had no opportunity to resolve material factual

disputes and make necessary factual findings.’ ” (People v.

Gurule (2002) 28 Cal.4th 557, 602 (Gurule).) We conclude that

this claim was not preserved for appeal.

We further hold that had the issue been preserved, the

exchange between Hin and Detective Seraypheap, when viewed

in context, reflected a concern about gang retaliation and was

not a request for confidentiality.

Hin cites People v. Braeseke (1979) 25 Cal.3d 691, vacated

on other grounds sub nom. California v. Braeseke (1980)

446 U.S. 932, for the proposition that a “request to speak ‘off the

record’ cannot constitute a knowing and intelligent waiver of

rights which include the advisement that ‘anything [a suspect]

says can be used against him in a court of law.’ ” (Braeseke, at

p. 702, quoting Miranda, supra, 384 U.S. at p. 479.) On their

face, the exchanges between Hin and Detective Seraypheap

could be understood as requests for and assurances of

confidentiality. At the beginning of his custodial interview, Hin

initially denied any involvement in the robbery and murder of

Martinez in American Legion Park. Shortly after this initial

denial, he asked Detective Seraypheap whether the

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Opinion of the Court by Liu, J.

conversation was “between us” and whether “[n]obody [was]

gonna know.” Detective Seraypheap agreed to both questions.

Immediately after, Hin admitted to his involvement and gave

details about what happened at American Legion Park,

although he denied being the shooter.

But later portions of the transcript indicate that Hin was

expressing concern that the officers would inform other gang

members of his statement rather than expressing a

misunderstanding of the advisement that his statements could

be used against him. After giving the officers details about what

happened in American Legion Park, Hin asked Detective

Seraypheap and Detective Reyes what would happen to him.

They explained that they would “talk to the [district attorney]”

and convey the information Hin had told them. Having already

been informed that the district attorney would be told about his

statements, Hin asked the detectives again, “This is not going to

go out to nobody, is it?” Detective Seraypheap reiterated that it

would go to him, Detective Reyes, and the district attorney. Hin

responded that he was not trying to “be no snitch,” that he was

“try[ing] not to catch a bullet to my face either,” and expressed

concern that “[i]t ain’t going to be safe for me.” The detectives

again told him that they would talk to the district attorney.

After further back and forth, Hin again expressed that he wasn’t

trying to “snitch” and worried out loud that “[s]omeone,

somebody is gonna know.”

Given this context, we conclude that Detective

Seraypheap “did not promise [Hin] that his statements would

remain confidential, nor did [Hin] understand [Detective

Seraypheap’s] comment to mean that all that was said would

remain confidential.” (Gurule, supra, 28 Cal.4th at p. 604.) Hin

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Opinion of the Court by Liu, J.

was told repeatedly that his statements would be conveyed to

the district attorney, and his repeated expressions of concern in

response were not about the legal consequences of his

confession. Rather, Hin appears to have feared for his personal

safety should other members of TRG find out he had confessed.

His questions to the detectives about whether others would

know what he said or if the conversation was “between us” were

allusions to other members of TRG, not requests for

confidentiality that reflected a misunderstanding of the

Miranda warning. To the extent that Hin argues that his

confession was involuntary because it was induced by a false

promise of confidentiality, we reject his claim for the same

reasons. (See ibid.)

Third, on his motion to suppress in the trial court, Hin

argued that his Miranda waiver was not knowing and

intelligent because he was intoxicated at the time of his initial

advisement on arrest. While Hin did not raise this additional

argument on appeal, we nonetheless agree with the trial court

that there is no evidence that Hin “was so under the influence

that he wouldn’t be able to understand and waive his Miranda

[r]ights.” Moreover, this court “has repeatedly rejected claims

of incapacity or incompetence to waive Miranda rights premised

upon voluntary intoxication or ingestion of drugs” alone. (People

v. Clark (1993) 5 Cal.4th 950, 988.) That Hin’s blood-alcohol

content was 0.08 percent when tested an hour after his first

Miranda advisement, without more, does not establish that he

was too intoxicated to make a knowing and intelligent waiver.

Finally, Hin argues that his confession regarding the

American Legion Park robbery and murder was involuntary

because the officers promised confidentiality and threatened

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Opinion of the Court by Liu, J.

punishment if he did not “come clean” about the crimes. We

disagree.

“The due process clause of the Fourteenth Amendment

precludes the admission of any involuntary statement obtained

from a criminal suspect through state compulsion.” (People v.

DePriest (2007) 42 Cal.4th 1, 34, citing Dickerson v. United

States (2000) 530 U.S. 428, 433–434.) When considering

whether a confession is voluntary, the test is “whether the

defendant’s will was overborne at the time he confessed.”

(Lynumn v. Illinois (1963) 372 U.S. 528, 534; see also DePriest,

at pp. 34–35.) We apply a totality of the circumstances test to

determine whether a confession is voluntary (DePriest, at p. 35),

considering “whether the confession was ‘ “extracted by any sort

of threats or violence, [or] obtained by any direct or implied

promises, however slight, [or] by the exertion of any improper

influence” ’ ” (Hutto v. Ross (1976) 429 U.S. 28, 30). “ ‘When, as

here, the interview was tape-recorded, the facts surrounding the

giving of the statement are undisputed, and the appellate court

may independently review the trial court’s determination of

voluntariness.’ ” (People v. Maury (2003) 30 Cal.4th 342, 404.)

Hin contends that Detective Seraypheap made

unambiguous threats of punishment when he told Hin, “When

you go to court, most likely, you know you, you’ll probably spend

the rest of your life in prison.” The detective continued, “You

need to come clean. Whether this guy fought with you. Whether

you were not the shooter. You were just doing the talking.

Whatever. You need to come clean on this, alright, cuz if you

don’t you’re going to get fried. This case right here that

American Legion Park shooting, this guy, is the biggest case in

Stockton, yet, about what happened at that park. You know

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Opinion of the Court by Liu, J.

why? Too many rich, too many rich people live around that area,

and when something like that happen, it shocked everybody.

Okay? So you need to come clean. If you were not the shooter,

tell me like it is, about the shooter, okay? Don’t bullshit me.

Nothing like that, alright? You need to come clean now.”

The detective’s statement Hin would “get fried” if he didn’t

confess is fairly understood to suggest that the decision to

charge the crime as a capital offense might hinge on Hin’s

confession. But we have said that “[r]eference to the death

penalty does not necessarily render a statement involuntary.”

(People v. Williams (2010) 49 Cal.4th 405, 443 (Williams).) “ ‘[A]

confession will not be invalidated simply because the possibility

of a death sentence was discussed beforehand. [Citations.] We

have found a constitutional violation in this context only where

officers threaten a vulnerable or frightened suspect with the

death penalty, promise leniency in exchange for the suspect’s

cooperation, and extract incriminating information as a direct

result of such express or implied threats and promises.’ ” (Ibid.)

Having viewed the videotape of the interrogation, we

conclude that “it is evident that neither the mention of the death

penalty nor the deception overcame defendant’s will” in this

interaction. (Williams, supra, 49 Cal.4th at p. 443.)

Significantly, Hin exhibited no signs of distress in response to

Detective Seraypheap’s reference to the death penalty. As the

trial court noted, “the officers were very low key,” and the

statement was “non-threatening.” Nothing about Hin’s

demeanor throughout the interrogation indicated that he was

afraid, and he did not appear threatened by the officer’s use of

the phrase “get fried.”

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Hin relies on People v. Johnson (1969) 70 Cal.2d 469, a

case concerning a pre-Miranda interrogation in which we held

that the defendant’s confession was not voluntary in light of

various errors in the advisement of rights provided to him. In

Johnson, we observed: “To someone unskilled and uncounseled

in the law it might have offered a hope that since no money was

taken in the robbery and if, as he claimed he did not do the

shooting, that he might be cleared of any serious charges.

Because of the felony-murder rule his statements amounted to

a confession of first degree murder (see Pen. Code, § 189). It

stretches the imagination to believe that he knowingly and

intelligently waived his right to be free from self-incrimination.”

(Id. at p. 479.) Relying on Johnson, Hin argues that the

detective’s statements suggesting some relevance to the fact

that he was not the shooter rendered his confession unknowing.

Hin notes that he, like the defendant in Johnson, had no prior

experience with law enforcement (apart from traffic matters).

He notes that he “was so unskilled in the law that he didn’t

understand that he could be arrested for admitting that he drove

the van during the drive-by shooting on Bedlow Drive . . . or

arrested for murder by admitting that he participated in the

fatal robbery in the park.”

But the detective’s statement to Hin “[did] not constitute

an offer of leniency on the part of the police or the prosecution

in return for a confession; it advised defendant that an

accomplice is generally better off than a triggerman. That was

sound advice . . . [as] an accomplice is far less likely to receive

the death penalty than the triggerman.” (People v. Garcia

(1984) 36 Cal.3d 539, 546, overruled on other grounds as

recognized in People v. Lee (1987) 43 Cal.3d 666, 676.) Unlike

Johnson, this was a capital case in which the fact that Hin was

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Opinion of the Court by Liu, J.

not the shooter could have some relevance at the penalty phase.

To the extent that a benefit associated with not being the

shooter could be inferred from the detective’s remarks, it was

“ ‘ “ ‘merely that which flows naturally from a truthful and

honest course of conduct’ ” ’ ” (People v. Tully (2012) 54 Cal.4th

952, 993) because the particular circumstances of a homicide can

constitute mitigating factors in the ultimate decision as to the

appropriate penalty. And although Hin’s question to Detective

Seraypheap, “Am I gonna get arrested for [the murder]?”

indicates a misunderstanding regarding the consequences of

confessing his involvement, this confusion does not appear to be

due to police misconduct and therefore does not render his

confession involuntary. Significantly, the detectives, in urging

Hin to “come clean,” never suggested he would not be arrested

for murder.

C. Motion to Sever

Hin argues the trial court abused its discretion in denying

his motion to sever the charges against him, violating his rights

to due process, a fair trial, a reliable guilt and penalty

determination, and his right to be free from cruel and unusual

punishment under both the federal and state Constitutions.

Before trial, Hin moved to sever the American Legion Park

charges from the other charges. He argued that severance was

necessary because evidence of the two crimes was not cross-

admissible and because the two crimes involved distinct

motives: a gang-related turf war on Bedlow Drive versus a

chance-encounter robbery at American Legion Park. In

opposition, the prosecutor argued that joinder was permitted

because all of the charged crimes were of the same class of

offenses (crimes against persons), committed by common

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Opinion of the Court by Liu, J.

perpetrators (Hin and Kak), and tied to a common weapon (the

nine-millimeter handgun found in Bun’s residence). He further

argued that evidence of Hin and Kak’s gang membership and

joint participation in the crimes was relevant to the gang

enhancement alleged for all counts charged and to the gang-

related special circumstance alleged for the murder at American

Legion Park, and was admissible to establish a common motive

for the crimes in the park.

The trial court denied Hin’s motion. The court found that

the crimes were of the same class and were committed close in

time to one another. And while observing there was “no

evidence” the victims at American Legion Park “were involved

in a gang at all,” the court nevertheless found there was “strong

evidence” to show that the counts related to the American

Legion Park shooting fell within the gang enhancement

provision of section 186.22. Finally, the court found that none

of the charges was so weak that it would be “unduly prejudicial

to join them with stronger cases.”

Section 954 allows for the joint trial of “two or more

different offenses connected together in their commission . . . or

two or more different offenses of the same class of crimes or

offenses.” Where joinder is proper under section 954, “[t]he

burden is on the party seeking severance to clearly establish

that there is a substantial danger of prejudice requiring that the

charges be separately tried.” (People v. Soper (2009) 45 Cal.4th

759, 773.) In determining whether a court abused its discretion

in declining to sever properly joined charges, we first “consider

the cross-admissibility of the evidence in hypothetical separate

trials.” (Id. at p. 774.) If the evidence is cross-admissible, then

this “is normally sufficient to dispel any suggestion of prejudice

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Opinion of the Court by Liu, J.

and to justify a trial court’s refusal to sever properly joined

charges.” (Id. at p. 775.) If not, then we also consider

“(1) whether some of the charges are particularly likely to

inflame the jury against the defendant; (2) whether a weak case

has been joined with a strong case or another weak case so that

the totality of the evidence may alter the outcome as to some or

all of the charges; or (3) whether one of the charges (but not

another) is a capital offense, or the joinder of the charges

converts the matter into a capital case.” (Ibid.) “Even if a

defendant fails to demonstrate the trial court’s joinder ruling

was an abuse of discretion when it was made, reversal may

nonetheless be required if the defendant can demonstrate that

‘the joint trial resulted in such gross unfairness as to amount to

a due process violation.’ ” (Landry, supra, 2 Cal.5th at p. 77.)

“[I]n a gang-related case, gang evidence is admissible if

relevant to motive or identity, so long as its probative value is

not outweighed by its prejudicial effect.” (People v. Williams

(1997) 16 Cal.4th 153, 193.) Here, evidence of Hin’s involvement

with Kak, a member of TRG, during the American Legion Park

crimes would have been admissible to demonstrate his motive

for participating in the Bedlow Drive shooting. The reverse is

also true: evidence of Hin’s involvement in the Bedlow Drive

shooting would have been admissible to establish his motive for

the American Legion Park shooting. (See People v. Samaniego

(2009) 172 Cal.App.4th 1148, 1167 (Samaniego) [“Gang

evidence is relevant and admissible when the very reason for the

underlying crime, that is the motive, is gang related.”].)

Because the evidence known to the court at the time of its

rulings suggested that the American Legion Park charges would

have been cross-admissible in a hypothetical separate trial of

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Opinion of the Court by Liu, J.

the other charges, Hin fails to show that the court abused its

discretion in denying severance.

Hin argues that the trial court erred in denying the motion

to sever because the prosecution presented no substantial

evidence that Hin and Kak committed the crimes in American

Legion Park as gang members, pointing to the fact that the jury

acquitted Hin of the gang enhancement for the American Legion

Park shooting. This argument confuses the sufficiency of the

evidence argument for the gang-related charges with Hin’s

argument that the trial court committed reversible error in

denying his motion to sever the American Legion Park counts

from the other counts. What is relevant here is that the

prosecutor did allege gang-related charges stemming from the

American Legion Park shooting, and the trial court accurately

determined that the evidence from the American Legion Park

shooting and Bedlow Drive shooting would be cross-admissible,

notwithstanding the jury’s subsequent acquittal on the gang

enhancement.

Having found that the trial court did not abuse its

discretion in denying severance of the American Legion Park

charges from the remaining charges, we must determine

“whether events after the court’s ruling demonstrate that

joinder actually resulted in ‘gross unfairness’ amounting to a

denial of defendant’s constitutional right to fair trial or due

process of law.” (People v. Merriman (2014) 60 Cal.4th 1, 46.)

In arguing that he was denied a fair trial, Hin concedes that the

denial of severance was not prejudicial to his murder and

attempted murder convictions in light of his admissions during

interrogation. Hin asserts only that the denial of severance was

prejudicial to the jury’s gang-murder special-circumstance

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Opinion of the Court by Liu, J.

finding. Below we consider the jury’s gang-murder special-

circumstance finding and reverse that finding on other grounds.

III. GUILT PHASE ISSUES

A. Murder and Attempted Murder

Hin was convicted of one count of first degree murder with

special circumstances and six counts of attempted murder with

a finding that the attempts were willful, deliberate, and

premeditated. Count 1 was for the murder of Martinez, count 3

was for the attempted murder of Pizano, and counts 5 through

9 were related to the Bedlow Drive shooting.

Hin argues that there is insufficient evidence to convict

him of the murder of Martinez with special circumstances

following the enactment of Senate Bill No. 1437 (2017–2018

Reg. Sess.) (Senate Bill 1437), which amended Penal Code

sections 188 and 189 to eliminate the natural and probable

consequences doctrine for first degree and second degree murder

(§ 188, subd. (a)(3)), and to heighten the requirements for felony

murder (§ 189, subd. (e)). In the alternative, he argues that

reversal of his murder conviction is required because the trial

court’s instructions to the jury included the now invalid natural

and probable consequences theory and felony-murder theory.

Hin also argues that because the Legislature’s enactment

of Senate Bill No. 775 (2021–2022 Reg. Sess.) (Senate Bill 775)

eliminated the natural and probable consequences doctrine for

attempted murder, his attempted murder convictions should be

reversed because the trial court’s alternative-theory error was

not harmless beyond a reasonable doubt. Hin further argues the

evidence was insufficient to support the jury instruction on the

“kill zone” theory of attempted murder for counts 5 and 8.

Finally, Hin argues the evidence was insufficient to support the

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jury’s verdict as to the five counts of attempted murder related

to the Bedlow Drive shooting.

As explained below, we affirm Hin’s murder conviction

because the trial court’s alternative-theory errors were

harmless beyond a reasonable doubt. We reverse Hin’s six

attempted murder convictions because the trial court’s

alternative-theory errors were not harmless beyond a

reasonable doubt. And we conclude the evidence is insufficient

to sustain two of the counts of attempted murder related to the

Bedlow Drive shooting.

1. Senate Bill 1437 and the Natural and Probable

Consequences Doctrine

Under the natural and probable consequences doctrine,

“ ‘A person who knowingly aids and abets criminal conduct is

guilty of not only the intended crime [target offense] but also of

any other crime the perpetrator actually commits [nontarget

offense] that is a natural and probable consequence of the

intended crime.’ ” (People v. Medina (2009) 46 Cal.4th 913, 920.)

A finder of fact relying on the natural and probable

consequences doctrine is not concerned with whether the aider

and abettor actually foresaw the nontarget crime, but rather

whether the nontarget crime was reasonably foreseeable when

judged objectively. (Ibid.)

In 2018, the Legislature enacted Senate Bill 1437, which

eliminated the natural and probable consequences theory of

murder. (Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill 1437

amended Penal Code section 188 to provide that “[e]xcept as

stated in subdivision (e) of Section 189 [governing felony

murder], in order to be convicted of murder, a principal in a

crime shall act with malice aforethought. Malice shall not be

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imputed to a person based solely on his or her participation in a

crime.” (§ 188, subd. (a)(3), added by Stats. 2018, ch. 1015, § 2.)

Senate Bill 1437 also narrowed the scope of the felony-murder

exception to this general rule, providing that a defendant who

was neither the actual killer nor acted with the intent to kill can

be liable for murder only if he was a “major participant in the

underlying felony and acted with reckless indifference to human

life.” (§ 189, subd. (e)(3), added by Stats. 2018, ch. 1015, § 3.) In

People v. Gentile (2020) 10 Cal.5th 830, 849 (Gentile), we held

that the statute as amended bars a conviction for first or second

degree murder under a natural and probable consequences

theory. We further held “that the procedure set forth in

section [1172.6] is the exclusive mechanism for retroactive relief

and thus the ameliorative provisions of Senate Bill 1437 do not

apply to nonfinal judgments on direct appeal.” (Id. at p. 839.)

In October 2021, the Governor signed into law Senate

Bill 775. (Stats. 2021, ch. 551.) In its findings and declarations,

the Legislature explained that Senate Bill 775 “[c]larifies that

persons who were convicted of attempted murder or

manslaughter under a theory of felony murder and the natural

probable [sic] consequences doctrine are permitted the same

relief as those persons convicted of murder under the same

theories.” (Stats. 2021, ch. 551, § 1, subd. (a).) The legislation

also allows a person convicted of murder or attempted murder

on a natural and probable consequences doctrine to challenge

the validity of the conviction on direct appeal (id., § 2 [revised

former § 1170.95, subd. (g) (now § 1172.6, subd. (g); see

Stats. 2022, ch. 58, § 10)]), abrogating our contrary holding in

Gentile. (See Gentile, supra, 10 Cal.5th at p. 839.) Senate

Bill 775 also abrogates our holding in People v. Favor (2012)

54 Cal.4th 868, 880, that “[u]nder the natural and probable

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consequences doctrine, there is no requirement that an aider

and abettor reasonably foresee an attempted premeditated

murder as the natural and probable consequence of the target

offense.” (See Stats. 2021, ch. 551, §§ 1, subd. (a), 2, subds. (a),

(g).)

Before guilt phase deliberations in this case, the trial court

instructed the jury that it could convict Hin of the murder of

Martinez under three theories of derivative murder liability:

(1) direct aiding and abetting premeditated murder (CALJIC

No. 3.00), (2) natural and probable consequences liability

arising from aiding and abetting the target crimes of kidnapping

and robbery (CALJIC No. 3.02), and (3) first degree felony

murder for a killing by another, “whether the killing is

intentional, unintentional or accidental” which occurs during

the “commission of the crime of robbery or kidnapping” (CALJIC

former No. 8.27).

The trial court also instructed the jury that it could convict

Hin of attempted murder for both incidents on two theories of

derivative liability: (1) directly aiding and abetting attempted

murder with “express malice aforethought, namely, a specific

intent to kill unlawfully another human being” (CALJIC

No. 8.66), and (2) if attempted murder “committed by a

principal” was a natural and probable consequence of a lesser

target crime “originally aided and abetted” by Hin (CALJIC

No. 3.02). For the allegation of attempted murder of Pizano at

American Legion Park (count 3), the court instructed the jury

that it could find Hin guilty of that crime if it was the natural

and probable consequence of aiding and abetting the target

crimes of robbery or kidnapping. (CALJIC No. 3.02.) For the

Bedlow Drive shooting, the court instructed the jury that it

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could find Hin guilty of all five counts of attempted murder

(counts 5, 6, 7, 8 and 9) if he aided and abetted the target crimes

of either “shooting at an occupied dwelling, shooting at an

occupied motor vehicle, or discharging a firearm from a motor

vehicle.”

The prosecutor, in turn, repeatedly relied on the pre-

Senate Bill 1437 felony murder and natural and probable

consequences theories during closing argument. With respect to

the murder and attempted murder at American Legion Park,

the prosecutor argued: “Because this shooting occurred during

the robbery . . . this is in fact murder . . . . Because under the

felony murder rule, when murder is in fact murder — when

someone dies during the robbery or kidnapping or attempted

robbery and kidnapping or flight therefrom, whether it was

intentional or unintentional or accidental.” The prosecutor also

argued the natural and probable consequences theory: “When

you look at the extent of liability, that you are not only liable for

the crimes you commit, but those crimes which are the natural

and probable consequences, it becomes even quite clear,

whether or not he, in fact, intended to aid and abet the crime of

murder, he is liable because of the robbery that, in fact, took

place.” The prosecutor summarized the theories: “I submit to

you there’s only one conclusion and that, quite clearly, that it is

foreseeable, based upon all the evidence you’ve seen in this case

and all the activities, because the target crime is robbery and,

in fact, the actual crime is committed, attempted murder and

murder are, in fact, reasonably foreseeable in this analysis, are

the natural and probable consequences that Mao Hin is clearly

guilty, not only under the felony-murder theory, not only under

the aiding and abetting theory, but under the aiding and

abetting theory and natural and probable consequences.”

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Similarly, with respect to the Bedlow Drive charges, the

prosecutor argued: “We did not have to prove Mao Hin, in fact,

being the shooter because he was the driver in this attempted

murder, in fact, aiding and abetting Rattanak Kak as he, in fact,

fired off the many different rounds, and Sarun Chun, he’s just

as liable as everyone else. [¶] Because he even agreed to commit

the crimes of shooting from a car and the other crimes of

shooting at occupied homes and occupied vehicles, these are

foreseeable crimes that would lead to attempted murder under

the natural and probable consequences liability.”

It is undisputed the jury was presented with both the valid

theory that Hin acted with intent to kill and invalid theories of

felony murder and of natural and probable consequences as a

basis to find him guilty of murder and attempted premeditated

murder. “Where a jury is instructed on alternate theories of

liability, one legally valid and one legally invalid, a federal

constitutional error has occurred.” (In re Lopez (2023)

14 Cal.5th 562, 580 (Lopez).) Accordingly, we “must reverse the

conviction unless, after examining the entire cause, including

the evidence, and considering all relevant circumstances, [we]

determine[] the error was harmless beyond a reasonable doubt.”

(People v. Aledamat (2019) 8 Cal.5th 1, 3.) A reviewing court

may hold such an error harmless “where it would be impossible,

based on the evidence, for a jury to make the findings reflected

in its verdict without also making the findings that would

support a valid theory of liability.” (Lopez, at p. 568.) In making

this assessment, a court must “rigorously review the evidence to

determine whether any rational juror who found the defendant

guilty based on an invalid theory, and made the factual findings

reflected in the jury’s verdict, would necessarily have found the

defendant guilty based on a valid theory as well.” (Ibid.) As

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explained below, on the record here the standard for

harmlessness has been met as to the murder conviction but not

as to the attempted murder convictions.

The Attorney General concedes that the five counts of

attempted murder related to the Bedlow Drive Shooting (counts

5 through 9 of the indictment) must be reversed. The Attorney

General explains that he is “compelled, on this record, to concede

that the invalid-theory error here might have contributed to

appellant’s guilt,” and he “cannot conclude that the presentation

to appellant’s jury of a now invalid theory was harmless beyond

a reasonable doubt” as to these counts. Indeed, the record

indicates that the prosecution in closing repeatedly argued the

natural and probable consequences doctrine as to the Bedlow

Drive shooting. For example, the jury was told that “[w]e did

not have to prove Mao Hin, in fact, being the shooter because he

was the driver in this attempted murder” and that shooting

toward the carport and residences “are foreseeable crimes that

would lead to attempted murder under the natural and probable

consequences liability.” During deliberations, the jury twice

asked the court for clarification of the word “probable” in the

natural and probable consequences instruction and was

reinstructed on it three times.

“The Attorney General bears the burden of showing that

the error was harmless beyond a reasonable doubt. (Chapman

[v. California (1967)] 386 U.S. [18,] 24; [In re Martinez (2017)

3 Cal.5th 1216, 1227].)” (Lopez, supra, 14 Cal.5th at p. 585.) As

the Ninth Circuit has put it, finding harmless error under

Chapman despite the government’s concession of prejudice

“requires a double level of certainty: we must be convinced that

the error was ‘harmless beyond a reasonable doubt’ and that

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‘satisfaction of that standard is beyond serious debate.’ ” (U.S.

v. Brooks (9th Cir. 2014) 772 F.3d 1161, 1171.) In light of his

burden on this issue, and in view of how the prosecution argued

and sought to prove counts 5 through 9, we agree with the

Attorney General that on this record it is not clear beyond a

reasonable doubt that the jury did not rely on the now invalid

theory in reaching Hin’s attempted murder convictions on

counts 5 through 9.

As to count 1 (the murder of Martinez) and count 3 (the

attempted murder of Pizano), however, the Attorney General

argues that the instructions on the natural and probable

consequences doctrine and felony murder were harmless beyond

a reasonable doubt because the jury necessarily found the

requisite culpability to convict Hin of the murder of Martinez

and attempted premeditated murder of Pizano. We accordingly

focus our analysis on counts 1 and 3.

2. First Degree Murder with Robbery, Kidnapping

and Gang Special Circumstances (Count 1)

The trial court instructed the jury with only one valid

theory of first degree murder of Martinez: direct aiding and

abetting of premeditated murder. That theory required the jury

to find “ ‘that the defendant aided or encouraged the commission

of the murder with knowledge of the unlawful purpose of the

perpetrator and with the intent or purpose of committing,

encouraging, or facilitating its commission.’ ” (Lopez, supra,

14 Cal.5th at p. 585, quoting People v. Chiu (2014) 59 Cal.4th

155, 167, superseded by statute on other grounds, as noted in

Gentile, supra, 10 Cal.5th at pp. 848–849.)

As the Attorney General concedes, the two other

theories — the natural and probable consequences instructions

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and the felony-murder instructions — have been invalidated.

The Attorney General argues, however, that these instructional

errors were harmless beyond a reasonable doubt because the

jury’s positive findings as to the special circumstances,

combined with the “overwhelming evidence” that Hin was a

major participant in the underlying felony who acted with

reckless indifference to human life, would have necessarily led

the jury to conclude that he was guilty of first degree felony

murder under current law.

Specifically, the Attorney General points to the jury’s true

findings as to the felony-murder special circumstances, which

required the jury to find that Hin aided and abetted Kak either

with the “intent to kill” or with “reckless indifference to human

life.” The Attorney General contends that “the jury’s findings as

to the underlying offense and the special circumstances, along

with the evidence supporting a finding of intent to kill and

reckless indifference . . . render any instructional error

harmless.”

We hold that on the facts of this case, the jury’s findings

on the felony-murder and gang-murder special circumstances in

combination render the instructional errors harmless beyond a

reasonable doubt and demonstrate that the jury made the

findings necessary to convict Hin on a valid theory of felony

murder. We further hold that the evidence was sufficient for a

jury to find that Hin intended to kill Martinez.

The trial court instructed the jury on the felony-murder

special circumstances as follows: “If you find that a defendant

was not the actual killer of a human being, or if you are unable

to decide whether the defendant was the actual killer or an aider

and abettor, you cannot find the special circumstance to be true

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unless you are satisfied beyond a reasonable doubt that such

defendant, with the intent to kill: Aided, abetted, counseled,

commanded, induced, solicited, requested or assisted any act or

in the commission of the murder of the first degree; or with

reckless indifference to human life and as a major participant

aided, abetted, counseled, commanded, induced, solicited,

requested or assisted in the commission of the crime of robbery

or kidnapping, which resulted in the death of a human being,

namely, Alfonso Martinez.” The court further instructed: “A

defendant acts with reckless indifference to human life when

that defendant knows or is aware that his acts involve a grave

risk of death to an innocent human being.”

The Attorney General argues that the jury’s true finding

as to the felony-murder special circumstances, which required it

to find that Hin aided and abetted the robbery or kidnapping of

Martinez either “with the intent to kill” or “with reckless

indifference to human life and as a major participant,” is alone

sufficient to fill the gaps in the felony-murder instruction Hin’s

jury received. However, we recently rejected such an approach

to pre-Senate Bill 1437 felony-murder special-circumstances

findings in People v. Strong (2022) 13 Cal.5th 698 (Strong), and

we do so again here.

In Strong, we considered whether a defendant convicted of

felony murder was barred from resentencing relief following the

enactment of Senate Bill 1437 because the jury that convicted

him of felony murder “also found true felony-murder special-

circumstance allegations that he was a ‘major participant’ who

acted with ‘reckless indifference to human life.’ ” (Strong, supra,

13 Cal.5th at p. 703.) We concluded that because the jury’s

felony-murder special-circumstances findings were made before

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our decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks)

and People v. Clark (2016) 63 Cal.4th 522 (Clark), “which for the

first time provided substantial guidance on the meaning of the

two relevant statutory phrases,” the defendant could make out

a prima facie showing of eligibility for relief. (Strong, at p. 703.)

This was true, we held, “even if the trial evidence would have

been sufficient to support the findings under Banks and Clark.”

(Id. at p. 710.)

As we discussed in Strong, our decisions in Banks and

Clark addressed a key constitutional question: how culpable

must a person be to be sentenced to death for felony murder?

(Strong, supra, 13 Cal.5th at p. 705; see Banks, supra,

61 Cal.4th at p. 794; Clark, supra, 63 Cal.4th at pp. 616–617.)

In Banks, we delineated several factors that a jury should

consider in weighing whether a felony-murder defendant’s

participation was “ ‘major’ ” enough to qualify for the death

penalty: his role in planning the target offense; supplying the

lethal weapon; awareness of the particular dangers posed by the

crime, weapon, or past conduct of other participants; presence

and actions (or inaction) at the scene of the killing; and actions

after lethal force was used. (Banks, at p. 803, quoting Tison v.

Arizona (1987) 481 U.S. 137, 152 (Tison).) We held that a

defendant’s participation in an armed robbery does not by itself

satisfy the Eighth Amendment’s requirements. (Banks, at

p. 805.)

In Clark, we provided further guidance on the “reckless

indifference” element of felony murder, noting the relevance of

several factors: use of or awareness of a weapon; physical

presence at the scene and opportunity to restrain confederates

or aid victims; duration of the crime; knowledge of any threat

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confederates might represent; and efforts taken to minimize

risks of violence. (Clark, supra, 63 Cal.4th at pp. 618–623.) We

similarly held that “while the fact that a robbery involves a gun

is a factor beyond the bare statutory requirements for first

degree robbery felony murder, this mere fact, on its own and

with nothing more presented, is not sufficient to support a

finding of reckless indifference to human life for the felony-

murder aider and abettor special circumstance.” (Id. at p. 617.)

“[W]hen Senate Bill 1437 amended Penal Code

section 189 to incorporate major participation and reckless

indifference requirements, it codified the understanding of those

requirements elucidated in Banks and Clark.” (Strong, supra,

13 Cal.5th at p. 710.) We have recognized that “Banks and

Clark represent the sort of significant change that has

traditionally been thought to warrant reexamination of an

earlier-litigated issue.” (Id. at p. 717.) Indeed, there are now

standard jury instructions based on the Banks/Clark factors for

juries to consider when deciding whether a defendant who did

not cause the death was a major participant in the felony and

acted with reckless indifference to human life. (See CALCRIM

No. 540B [Felony Murder: First Degree — Coparticipant

Allegedly Committed Fatal Act]; CALCRIM No. 703 [Special

Circumstances: Intent Requirement for Accomplice After June

5, 1990 — Felony Murder].) Further, as we explained in Strong,

“in the wake of Banks and Clark,” the arguments available to

felony-murder defendants changed significantly to the point of

potentially “fundamentally alter[ing] trial strategies . . . to focus

on proving they were guilty at most of a noncapital homicide.”

(Strong, at p. 719.)

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Here, as in Strong, the jury made its true findings on the

felony-murder special circumstances prior to our court’s

decisions in Banks and Clark, and prior to their codification by

Senate Bill 1437. As in Strong, because those special

circumstance findings were made without understanding what

degree of culpability is required, they are not sufficient,

standing alone, to establish that Hin “is in a class of defendants

who would still be viewed as liable for murder under the current

understanding of the major participant and reckless

indifference requirements.” (Strong, supra, 13 Cal.5th at

p. 718.)

The Attorney General argues that Strong is inapposite

because of its different posture. The question in Strong was

whether the defendant had made out a prima facie case for

resentencing relief under section 1172.6, whereas the case

before us involves a direct appeal. It is true that “a harmless

error analysis on direct appeal is distinct from the . . . inquiry

under section 1172.6.” (People v. Wilson (2023) 14 Cal.5th 839,

872 & fn. 12.) But the record-based inquiry under

section 1172.6 that “look[s] to the jury’s verdicts, and the factual

findings they necessarily reflect,” is equally helpful in

determining whether the defendant was prejudiced by the

alternative-theory error. (People v. Curiel (2023) 15 Cal.5th

433, 465 (Curiel).) We conclude, as we did in Strong, that a pre-

Banks/Clark felony-murder special-circumstance finding does

not by itself establish that the jury convicted a defendant of

murder on a valid theory of felony murder.

At the same time, the case before us differs from Strong in

an important respect. Here, unlike in Strong, the jury also

returned a “true” finding on the gang-murder special

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circumstance (§ 190.2, subd. (a)(22)). As to this special

circumstance, the jury was instructed in relevant part: “To find

that the special circumstance ‘intentional killing by an active

street gang member’ is true, it must be proved: [¶] 1. The

defendant intentionally killed the victim; or with the intent to

kill, aids and abets, counsels, commands, induces, solicits,

requests, or assists the actual killer.” The jury’s true finding as

to this special circumstance means it necessarily found that Hin

acted “with the intent to kill” when he participated in the

robbery with Kak.

The question is whether this jury finding, in conjunction

with the other special circumstance findings, necessarily means

that the jury found Hin guilty on a valid theory of felony murder.

“As amended by Senate Bill 1437, a defendant is guilty of first

degree felony murder if he is the ‘actual killer’ (§ 189,

subd. (e)(1)); if, ‘with the intent to kill,’ he aids or abets ‘the

actual killer in the commission of murder in the first degree’ (id.,

subd. (e)(2)); or, if he was a ‘major participant in the underlying

felony’ and ‘acted with reckless indifference to human life’ (id.,

subd. (e)(3)).” (People v. Wilson, supra, 14 Cal.5th at p. 873.)

Here, we focus our review on the third prong.

Hin does not dispute that he was a major participant in

the robbery of Martinez and Pizano; he contests only the second

element — i.e., that the jury’s findings do not show reckless

indifference to human life. In addition to the undisputed major

participant element, the jury found true the special

circumstance that Hin intentionally killed the victim while an

active participant in a criminal street gang. The jury’s findings

in this case, in combination, establish the elements of felony

murder under current law (§ 189, subd. (e)(3)), rendering the

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instructional errors harmless beyond a reasonable doubt. While

it may have been possible to have concluded from the evidence

that Hin merely intended to rob Martinez, the jury plainly did

not so conclude; the jury’s special circumstance finding shows it

found that Hin intended to kill Martinez. Because the evidence

is sufficient to support this finding, we owe deference to the

jury’s determination. (See Lopez, supra, 14 Cal.5th 562, 584

[appellate court examining alternative-theory error must

consider whether “any rational jury would surely have rendered

the same verdict had it been properly instructed”].)

The jury’s finding that Hin intended to kill Martinez —

based on evidence of his observed behavior during the course of

the armed robbery — satisfies the amended felony-murder

statute’s “reckless indifference to human life” mens rea

requirement. (§ 189, subd. (e)(3).) It is true, as Hin argues, that

the fact of Hin’s participation in an armed robbery is

insufficient, without more, to establish reckless indifference to

human life. (Banks, supra, 61 Cal.4th at p. 805.) Rather,

“[r]eckless indifference to human life has a subjective and an

objective element. (Clark, supra, 63 Cal.4th at p. 617.) As to

the subjective element, ‘[t]he defendant must be aware of and

willingly involved in the violent manner in which the particular

offense is committed,’ and he or she must consciously disregard

‘the significant risk of death his or her actions create.’ (Banks,

supra, 61 Cal.4th at p. 801; see Clark, at p. 617.) As to the

objective element, ‘ “[t]he risk [of death] must be of such a nature

and degree that, considering the nature and purpose of the

actor’s conduct and the circumstances known to him [or her], its

disregard involves a gross deviation from the standard of

conduct that a law-abiding person would observe in the actor’s

situation.” ’ (Clark, at p. 617, quoting Model Pen. Code, § 2.02,

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subd. (2)(c).).” (In re Scoggins (2020) 9 Cal.5th 667, 677

(Scoggins).)

The jury’s findings satisfy both the subjective and

objective elements and distinguish this case from the “garden-

variety armed robbery, where death might be possible but not

probable.” (Banks, supra, 61 Cal.4th at p. 802.) As to the

subjective component, the jury necessarily found that Hin was a

willing participant in the robbery and not only “consciously

disregard[ed]” the risk of death that the robbery posed to

Martinez’s life but in fact intended for him to be killed.

(Scoggins, supra, 9 Cal.5th at p. 677.) As to the objective

component, the jury’s finding of Hin’s intent to kill Martinez

necessarily relied on evidence of Hin’s conduct during the

encounter in the park, which elevated the risk of Martinez’s

death beyond “those risks inherent in any armed robbery.”

(Clark, supra, 63 Cal.4th at p. 623.) This is not a case where the

prosecution sought to prove intent to kill in the form of a

confession or witness testimony as to the defendant’s spoken

intent. Instead, it is undisputed that Hin orchestrated what

transpired: he helped plan the robbery; he knew a gun would be

used; he gave all the orders to Martinez and Pizano while Kak

held the gun, including requiring Martinez and Pizano to walk

to a darker area of the park at gunpoint; and he did not render

aid after the shooting. In light of the record before us, we

conclude that it is this evidence on which the jury necessarily

relied in finding Hin’s intent to kill Martinez, and this evidence

shows that Hin’s conduct created an objectively “ ‘grave risk of

death’ ” that satisfies the reckless indifference standard.

(Banks, supra, 61 Cal.4th at p. 808, quoting Tison, supra,

481 U.S. at p. 157.) Together with Hin’s undisputed major

participation “in the underlying felony,” which satisfies the

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amended statute’s actus reus requirement (§ 189, subd. (e)(3)),

the jury’s finding of Hin’s intent to kill Martinez, on the evidence

here, establishes that the jury found him liable on a theory of

felony murder that is in accord with current law.

At oral argument, Hin argued that the jury’s special

circumstance findings cannot be considered because in filling

out the verdict form, the jury “do[esn’t] get to the specials until

there’s been a valid conviction for first-degree murder.”

According to Hin, given the instructional error on first degree

murder, no further findings on the verdict form can be

considered because we cannot know if or how the jury would

have filled out the rest of the form had the error not occurred.

But instructional error does not require us to overlook findings

that the jury indisputably made, and we have not previously

adopted Hin’s suggested approach to the harmless error

analysis. (See People v. Gonzalez (2018) 5 Cal.5th 186, 200

[looking to “the jury’s robbery-murder special-circumstance

finding” to decide if it “render[ed] harmless” instructional errors

impacting the first degree murder conviction].)

Hin also contends that the jury’s intent finding on the

gang-murder special circumstance is inextricably linked to

whether he was “further[ing] the activities of a criminal street

gang.” In his view, the intent finding cannot be considered in

isolation from the gang-related elements of the special

circumstance. However, this argument is not supported by the

jury instructions, which required the jury to make an intent

finding as an independent element: “To find that the special

circumstance ‘intentional killing by an active street gang

member’ is true, it must be proved: [¶] 1. The defendant

intentionally killed the victim; or with the intent to kill, aids and

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abets, counsels, commands, induces, solicits, requests, or assists

the actual killer.” The jury was instructed that the gang-related

aspects of the special circumstance finding were separate

elements. That is, the jury was told that to find the special

circumstance true, it also had to find: “[¶] 2. At the time of the

killing, the defendant was an active participant in a criminal

street gang; [¶] 3. The members of that gang engaged in or have

engaged in a pattern of criminal gang activity; [¶] 4. The

defendant knew that the gang members engaged in or have

engaged in a pattern of criminal gang activity; and [¶] 5. The

murder was carried out to further the activities of the criminal

street gang.” On this record, we hold that the jury’s intent

finding was independent and undisturbed by the other elements

of the gang-murder special circumstance.

We further conclude that there was substantial evidence

to support the jury’s finding of Hin’s intent to kill Martinez.

“When considering a challenge to the sufficiency of the evidence

to support a conviction, we review the entire record in the light

most favorable to the judgment to determine whether it contains

substantial evidence — that is, evidence that is reasonable,

credible, and of solid value — from which a reasonable trier of

fact could find the defendant guilty beyond a reasonable doubt.”

(People v. Lindberg (2008) 45 Cal.4th 1, 27.)

The evidence here included testimony from Pizano, the

surviving victim. Pizano testified that although Kak held the

gun throughout the encounter, it was Hin who gave all the

orders. This included the order to walk down the levee to a

darker area of the park, at gunpoint. She further testified that

Hin and Kak were whispering to each other as they approached.

In addition, she testified that immediately before the shooting,

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Hin made a comment about how dangerous it was to walk in the

park late at night and both he and Kak started laughing.

Further, Officer Nance testified that because Hin was older than

Kak, Hin had a leadership role in their gang when compared

with Kak. Viewing this evidence in the light most favorable to

the judgment, we hold it was reasonable for the jury to infer that

Hin and Kak devised a plan for Kak to shoot Martinez, that Hin

moved them to a darker area of the park to facilitate the

shooting, and that his comment about the danger of walking in

the park late at night indicated his intent to kill.

In sum, the jury’s special circumstances findings, which

are supported by substantial evidence in relevant part, indicate

that the jury necessarily found Hin guilty under a valid theory

of felony murder. (See Lopez, supra, 14 Cal.5th at p. 568.) We

conclude that the alternative-theory errors as to count 1 were

harmless beyond a reasonable doubt and accordingly affirm

Hin’s first degree murder conviction.

3. Attempted Murder of Pizano (Count 3)

Hin also argues that the natural and probable

consequences alternative-theory error as to the attempted

murder conviction of Pizano (count 3) warrants reversal. The

Attorney General contends that the jury’s true finding on the

gang-murder special circumstance confirms beyond a

reasonable doubt that the jury necessarily found that Hin acted

with intent to kill when he aided and abetted the attempted

premeditated murder of Pizano.

Although this instruction and the jury’s finding on the

gang-murder special circumstance pertained only to count 1 (the

murder of Martinez), the Attorney General argues that it also

resolves the question of intent as to count 3, the attempted

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murder of Pizano: “The jury’s true finding as to this special

circumstance establishes that it found, beyond a reasonable

doubt, that appellant acted with an intent to kill Martinez.

Because the murder of Martinez and the attempted murder of

Pizano occurred at the same time and place, the finding of an

intent to kill as to Martinez establishes that the jury also found

that [Hin] intended to kill Pizano, who was shot in the head just

after Martinez was killed.” The Attorney General further

argues that this intent finding in turn leads to the “inexorable

conclusion” that the jury would have necessarily convicted Hin

on a valid theory of direct aiding and abetting, rendering any

instructional error harmless beyond a reasonable doubt. We

disagree.

In Lopez, the defendant was convicted of first degree

premeditated murder as an aider and abettor. (Lopez, supra,

14 Cal.5th at p. 567.) The jury found true the gang-murder

special circumstance (§ 190.2, subd. (a)(22)) and the criminal

street gang sentencing enhancement (§ 186.22, subd. (b)(1)) as

to that murder. (Lopez, at p. 56.) Lopez petitioned for writ of

habeas corpus, alleging that the jury had been instructed on the

natural and probable consequences theory of aiding and

abetting first degree murder, which we found invalid in Chiu,

supra, 59 Cal.4th 155, and that the error was not harmless

beyond a reasonable doubt. (Lopez, at p. 567.) The Court of

Appeal held that the error was harmless beyond a reasonable

doubt based on the gang-murder special circumstance and the

“ ‘overwhelming’ ” evidence against Lopez. (Ibid.)

We reversed, explaining that “[w]hile the relevant

language” of the special circumstance “evokes similar concepts,

it does not cover all of the elements of direct aiding and

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abetting.” (Lopez, supra, 14 Cal.5th at p. 587.) Specifically, we

explained that the special circumstance encompassed two of the

three required elements of direct aiding and abetting: that the

defendant “ ‘aided or encouraged the commission of the

murder’ ” and had “ ‘the intent or purpose of committing,

encouraging, or facilitating its commission.’ ” (Lopez, at p. 587.)

The third element of direct aiding and abetting — “ ‘knowledge

of the unlawful purpose of the perpetrator’ ”(ibid.) — is not

encompassed by the jury’s special circumstance finding because

a defendant could aid or assist the actual perpetrator as a

factual matter without knowing that the actual perpetrator, too,

intended to kill. Accordingly, we held that the special

circumstance verdict alone was not enough to find the error

harmless beyond a reasonable doubt. (Ibid.)

Here, as in Lopez, the jury’s true finding on the gang-

murder special circumstance does not establish all the elements

of accomplice liability for murder or attempted murder. As

noted, the gang-murder special circumstance pertained only to

the murder of Martinez. The jury did not return any finding

that Hin intended to kill Pizano or that Hin had “ ‘knowledge of

the unlawful purpose’ ” of the actual perpetrator, Kak. (Lopez,

supra, 14 Cal.5th at p. 587.)

When the verdict alone does not establish the

harmlessness of alternative-theory error, a reviewing court may

examine “ ‘what the jury necessarily did find and asks whether

it would be impossible, on the evidence, for the jury to find that

without also finding the missing fact as well.’ ([Aledamat,

supra, 8 Cal.5th] at p. 15.) In other words, if ‘ “[n]o reasonable

jury that made all of these findings could have failed to find” ’

the facts necessary to support a valid theory, the alternative

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theory error was harmless. (Ibid.)” (Lopez, supra, 14 Cal.5th at

p. 592.)

The Attorney General contends that on the evidence

presented, “the finding of an intent to kill as to Martinez

establishes that the jury also found that appellant intended to

kill Pizano.” According to the Attorney General, “[t]he evidence

established that at American Legion Park, [Hin] and Kak

whispered as they approached Pizano and Alfonso Martinez.

Kak drew a gun and pointed it at Martinez’s and Pizano’s heads.

[Hin] and Kak took Martinez’s money and Pizano’s purse, and

then forced Martinez and Pizano off the ridge to where it was

darker. As they walked, Kak or appellant shoved Martinez, and

Pizano started to cry. [Hin] told Pizano, ‘don’t cry, byotch.’ [Hin]

and Kak took the remainder of their property. [Hin] and Kak

laughed as they moved away, and [Hin] remarked that it was

dangerous to walk in the park at night. Three or four shots were

then fired, hitting Martinez twice and killing him. Pizano was

struck in the head and the leg.” The prosecutor argued, and the

Attorney General urges here, that Hin “intended to make sure

that no witnesses survived the robbery.”

The Attorney General’s interpretation of the evidence is

reasonable, but it is not the only reasonable reading of the

record. During interrogation, Hin denied knowing that Kak was

going to shoot either victim, and he expressed surprise at the

shooting. When asked why he dropped the clothes and other

items they took from Martinez and Pizano, Hin responded, “I

didn’t thought [sic] he was going to shoot them. . . . I thought it

was going to be a robbery and just take it and just run.” The

true finding on the gang-murder special circumstance indicates

that the jury disbelieved Hin’s statement insofar as he denied

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an intent to kill Martinez, but it does not necessarily establish

that the jury believed Hin intended to kill Pizano or knew of

Kak’s intent to kill either Martinez or Pizano. According to

Pizano’s testimony, one of the men shoved Martinez before the

shooting (there is no evidence of similar physical pressure on

Pizano), and Martinez was standing between Pizano and the

men when the shots were fired — facts that might have

indicated the men perceived Martinez to pose a greater threat

of resistance. Further, the jury could have inferred that Hin

intended to reduce the risk that Pizano or Martinez could

identify him by moving them away from the light for the

remainder of the robbery. And although there is evidence that

Hin and Kak whispered as they approached Martinez and

Pizano, the record contains no indication of what was said.

Although the jury’s true finding on the gang-murder

special circumstance necessarily includes a finding that Hin

intended to kill Martinez, it is an inferential step to conclude

that Hin also intended to kill Pizano. Moreover, it would require

an even greater inference to conclude from the jury’s finding

that Hin had knowledge of Kak’s intent to shoot Pizano or

Martinez. Such inferences may be reasonable. But it is not

“impossible, on the evidence, for the jury to find [that Hin

intended to kill Martinez] without also finding” both that he

intended to kill Pizano and knew of Kak’s intent to shoot the

victims. (Aledamat, supra, 8 Cal.5th at p. 15.) The record of

conviction thus does not establish beyond a reasonable doubt

that the jury would have found Hin guilty of all the elements of

direct aiding and abetting as to the attempted murder of Pizano.

(Lopez, supra, 14 Cal.5th at p. 587.)

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Accordingly, we conclude that the Attorney General has

not met his burden to show beyond a reasonable doubt that the

jury would have found Hin guilty of the attempted murder of

Pizano on a proper theory. In light of the Attorney General’s

concession regarding the attempted murders at Bedlow Drive,

we accordingly reverse all six counts of attempted murder (count

3 and counts 5 through 9).

4. Availability of Retrial, Sufficiency of the Evidence,

and the Kill Zone Theory for Attempted Murder

Hin contends that retrial is impermissible as to the five

counts of attempted murder at Bedlow Drive because of

insufficient evidence. Hin relies on a similar argument as a

basis to reverse his convictions for shooting at an inhabited

dwelling (counts 10 and 12) and shooting at an occupied motor

vehicle (count 13). As explained below, we reject these

arguments except as to the two counts of attempted murder of

victims who were located inside the residences at the time of the

shooting. As to these counts, we conclude the evidence was

insufficient to support a conviction under the only valid theory

on which Hin was tried: direct aiding and abetting. We decline

to decide whether double jeopardy bars retrial of these two

counts.

The double jeopardy clause of the United States

Constitution provides that no person may “be subject for the

same offence to be twice put in jeopardy of life or limb.” (U.S.

Const., 5th Amend.) The California Constitution affords the

same protection. (Cal. Const., art. I, § 15.) Nonetheless, a

defendant who successfully appeals from a judgment of

conviction may be tried a second time for the same offense

unless the conviction is set aside for insufficiency of the

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evidence. (Sanabria v. United States (1978) 437 U.S. 54, 63 &

fn. 15, 64.) A finding of insufficient evidence is the functional

equivalent of a judgment of acquittal, upon which retrial is

prohibited. (Burks v. United States (1978) 437 U.S. 1, 10–11

(Burks); see id. at p. 17 [double jeopardy is a rule against

“afford[ing] the government an opportunity for the proverbial

‘second bite at the apple’ ”].)

Hin concedes there was sufficient evidence to support the

verdict of the attempted murder of Pizano at American Legion

Park (count 3) but argues the evidence was insufficient to

support the guilty verdict as to the five counts of premeditated

attempted murder related to the Bedlow Drive shooting (counts

5 through 9), particularly with respect to the two victims who

were injured inside the residences: Pen (count 5) and Hing

(count 8). Because we conclude all five counts of attempted

murder at Bedlow Drive must be reversed, we address Hin’s

sufficiency of the evidence claim to determine whether retrial is

permissible.

We “review the whole record in the light most favorable to

the judgment below to determine whether it discloses

substantial evidence — that is, evidence which is reasonable,

credible, and of solid value — such that a reasonable trier of fact

could find the defendant guilty beyond a reasonable doubt.”

(People v. Johnson (1980) 26 Cal.3d 557, 578.) As discussed, the

jury was instructed on two theories of murder — direct aiding

and abetting and the natural and probable consequences

doctrine — one of which we now find improper. This leaves the

remaining, properly instructed theory of direct aiding and

abetting. We proceed to assess only the sufficiency of the

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evidence as to the properly instructed direct aiding and abetting

theory.

“[A] person who aids and abets a crime is guilty of that

crime even if someone else committed some or all of the criminal

acts.” (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) “ ‘A

person aids and abets the commission of a crime when he or she,

(i) with knowledge of the unlawful purpose of the perpetrator,

(ii) and with the intent or purpose of committing, facilitating or

encouraging commission of the crime, (iii) by act or advice, aids,

promotes, encourages or instigates the commission of the

crime.’ ” (People v. Hill (1998) 17 Cal.4th 800, 851.)

As discussed, Hin was arrested hours after the shooting at

Bedlow Drive while driving his van with Kak and Chun. Police

found shell casings in the van that matched those found at

Bedlow Drive. Hin admitted to driving the van but claimed he

did not know Kak had a gun. He claimed he and Kak were at a

gas station when they were confronted by a group of men, and

he decided to follow the men “to see where they kick[ed] it at.”

This led him to Bedlow Drive, where Hin said “he heard

gunshots and then he said that Kak pulled out a gun and started

shooting” at a group of people on Bedlow Drive. After the

shooting, Hin and Kak went to a party and hung out together.

Hin claimed during his interview that he never saw the gun

again after the shooting, but Bun testified that Hin gave him

the gun that was linked to the shooting to hold onto because he

and Kak had “just c[o]me from a problem.”

Witnesses at Bedlow Drive testified that they heard one or

more rounds of multiple shots fired from the street in front of

the residences; some of the witnesses saw a van similar to Hin’s

van. Witnesses testified that the van slowed down as it passed,

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then made a U-turn and passed by again. Police found no guns

at Bedlow Drive and no evidence that shots were fired from the

residences or carport toward the street and Hin’s van. Officer

Daniel Gatto testified that Bedlow Drive was in an area known

to be the turf of the Asian Street Walkers (ASW) gang, a rival of

TRG.

The evidence was sufficient to establish that, following a

confrontation, Hin drove Kak and Bun to a residence in a rival

gang’s territory, slowed down to allow Kak to shoot, then made

a U-turn to drive past the residence again so Kak could continue

to shoot. The evidence was also sufficient to show that Hin and

Kak remained together after the shooting, and then Hin made

arrangements to pass off the gun that was used in the shooting.

Finally, Hin denied any involvement in the shooting until Kak

informed him that he had already admitted his own

participation in the shooting. Based on this evidence, it would

have been reasonable for the jury to infer that Hin shared Kak’s

intent to kill and his intent to shoot at an occupied vehicle and

inhabited dwellings, at least with respect to those victims that

were outside of the residences during the shooting. Accordingly,

we reject Hin’s sufficiency of the evidence claim with respect to

counts 6, 7, 9, 10, 12, and 13.

There remains the question of whether the evidence was

sufficient to establish the intent to kill those victims who were

injured inside the residences on Bedlow Drive: Pen (count 5)

and Hing (count 8). As we have explained, “the intent to kill

element must be examined independently as to each alleged

attempted murder victim; an intent to kill cannot be

‘transferred’ from one attempted murder victim to another

under the transferred intent doctrine.” (People v. Canizales

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(2019) 7 Cal.5th 591, 602 (Canizales).) “Direct evidence of intent

to kill is rare, and ordinarily the intent to kill must be inferred

from the statements and actions of the defendant and the

circumstances surrounding the crime.” (Ibid.) Under what has

come to be known as the “kill zone” theory, “the nature and scope

of the attack directed at a primary victim may raise an inference

that the defendant ‘ “intended to ensure harm to the primary

victim by harming everyone in that victim’s vicinity.” ’ ” (Ibid.)

In Canizales, we explained that the kill zone theory may

only be applied to establish the specific intent to kill when the

jury concludes “(1) the circumstances of the defendant’s attack

on a primary target, including the type and extent of force the

defendant used, are such that the only reasonable inference is

that the defendant intended to create a zone of fatal harm —

that is, an area in which the defendant intended to kill everyone

present to ensure the primary target’s death — around the

primary target and (2) the alleged attempted murder victim who

was not the primary target was located within that zone of

harm.” (Canizales, supra, 7 Cal.5th at p. 607.) “Taken together,

such evidence will support a finding that the defendant

harbored the requisite specific intent to kill both the primary

target and everyone within the zone of fatal harm.” (Ibid.) We

concluded that the evidence presented in Canizales was not

sufficient to support an instruction on the kill zone theory (id.

at p. 611) and that the instruction provided in that matter (the

standard CALCRIM No. 600 instruction on attempted murder)

was deficient because it did not define the term “kill zone” or

instruct the jury “to consider evidence regarding the

circumstances of defendants’ attack when determining whether

defendants ‘intended to kill [the target victim] by killing

everyone in the kill zone’ ” (Canizales, at p. 613).

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Canizales identified a number of relevant circumstances

from which a jury could properly infer the defendant intended

to create a zone of harm, including “the type of weapon used, the

number of shots fired (where a firearm is used), the distance

between the defendant and the alleged victims, and the

proximity of the alleged victims to the primary target.”

(Canizales, supra, 7 Cal.5th at p. 607.) Applying these factors,

the facts here are, in some respects, more suggestive of kill-zone

liability than those in Canizales. There, we observed that the

perpetrator fired five shots from a distance of either 100 or 160

feet away from the intended target and that “the attack occurred

at a block party on a wide city street, not in an alleyway, cul-de-

sac, or some other area or structure from which victims would

have limited means of escape.” (Id. at p. 611.) Here, witnesses

testified that there were between 15 and 30 shots fired that

evening 30 feet away from the entrance to the enclosed carport

(and less than 45 feet away from the adjacent residence) from

multiple guns, at least one of which was evidently capable of

penetrating into the residences behind the carport.

Where this case differs significantly from Canizales,

however, is that the jury was instructed it could rely on the kill

zone theory as to the two victims who were injured inside the

residences adjoining the carport. We have not had an occasion

to extend the rationale of Canizales to reach victims within a

residence or otherwise not visible to the shooter. Our decision

in Canizales relied on People v. Vang (2001) 87 Cal.App.4th 554,

564 (Vang) for the proposition that “the placement of the shots,

the number of shots, and the use of high-powered wall-piercing

weapons created a reasonable inference that the defendants

intended to kill every living being inside the residences at which

they shot.” (Canizales, supra, 7 Cal.5th at p. 610; see Vang, at

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pp. 563–564.) But this case is distinguishable from Vang, where

“[t]wenty-one shell casings from an AK series assault rifle and

five shotgun shells were found at the scene” and “[a]t least 50

bullet holes” in the front of the residence, “with the majority

focused [sic] on” the unit in which five of the victims were

located. (Vang, at p. 558.) Here, the evidence showed that

between 15 and 30 shots were fired from a nine-millimeter

handgun, with most shots fired at the men in the carport.

As in Vang, the evidence showed gunfire damage within

the residences. At 619 Bedlow, where one victim was shot

through the window, the only firearm damage observed was the

bullet hole in the window. But at 615 Bedlow, where the second

victim was shot while sitting on the couch watching football,

officers observed bullet holes in the south wall, in the window of

the residence, above an electrical outlet near the fireplace, and

in the television set, as well as bullet damage to a bed frame

inside the residence. Unlike in Vang, there was no evidence that

the shots were specifically targeting the residence, nor was

there evidence that the shooters used the type of high-powered

weapon at issue in Vang. We thus decline to extend the rule

articulated in Canizales to permit reliance on the kill zone

theory on these facts. Instead, we hold that the evidence was

insufficient to establish an intent to kill Sobin Pen (count 5) and

Sokkhon Hing (count 8) under the properly instructed theory of

direct aiding and abetting.

The parties disagree on whether this holding triggers the

constitutional guarantee against double jeopardy and precludes

retrial of those two counts. According to the Attorney General,

Hin may be retried because in addition to presenting the jury

with a theory for which we find the evidence insufficient, the

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prosecution tried him on a second theory that is now invalid.

Retrial must be allowed, according to the Attorney General,

even though at oral argument he could not “at this time, think

of another theory upon which [these counts] could validly be

retried.”

The Attorney General argues this result is compelled by

our holdings that double jeopardy is “inapplicable” when

evidence is insufficient because of a postconviction change in the

law. (People v. Shirley (1982) 31 Cal.3d 18, 71.) As we have

explained, double jeopardy “achieves its aim — i.e., of protecting

the defendant against the harassment and risks of unnecessary

repeated trials on the same charge — by the device of giving the

prosecution a powerful incentive to make the best case it can at

its first opportunity. [Citation.] But the incentive serves no

purpose when, as here, the prosecution did make such a case

under the law as it then stood; having done so, the prosecution

had little or no reason to produce other evidence of guilt.” (Ibid.)

In other words, where the prosecution’s original burden of proof

at trial is later altered, “it [is] unrealistic to assume that the

prosecution, with a perfect case for proof of [the invalid theory],

necessarily presented all available evidence relating to [the

valid theory.]” (People v. Garcia, supra, 36 Cal.3d at pp. 557–

558; see U.S. v. Aiello (2d Cir. 2024) 118 F.4th 291, 301

[collecting federal cases establishing a similar rule against

evaluating sufficiency of the evidence for a crime whose

elements are “ ‘later altered by a change in the applicable law’ ”

on the ground that the government should not be held to the

evidence it presented at trial when it had no notice of what it

needed to prove].) Applying these cases, the Court of Appeal in

People v. Hola (2022) 77 Cal.App.5th 362, 371–377, held that

double jeopardy did not bar retrial where a defendant was tried

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and convicted solely under the now-invalid natural and probable

consequences theory.

Hin’s trial differs from these cases in that the prosecution

has already tried him on a valid theory. Hin’s jury was

presented with two theories of attempted murder liability that

were each, standing alone, sufficient to convict. Unlike the legal

error in Shirley, Garcia, Hola, and the federal case law cited

above, the legal error here removed one of those avenues to a

conviction while leaving intact another independent theory that

was actually litigated. From all appearances, the prosecution

fully availed itself of its opportunity to litigate the valid theory.

At trial, the prosecution called a total of 25 witnesses to prove

the attempted murders at Bedlow Drive, including “12 civilian

witnesses present at Bedlow Drive at the time of the shooting,”

11 investigating police officers, and gang and firearms experts.

In addition, the prosecution presented evidence of Hin’s

interrogations about the shooting at Bedlow Drive. In closing,

the prosecution argued direct aiding and abetting to the jury,

explaining that “[w]e did not have to prove Mao Hin, in fact,

being [sic] the shooter because he was the driver in this

attempted murder, in fact, aiding and abetting Rattanak Kak as

he, in fact, fired off the many different rounds.” And the jury

was instructed on direct aiding and abetting “at the request of

the prosecution.”

We further note that the Attorney General, in his briefing

and at oral argument, gave no indication of what additional

evidence the prosecution could offer to support a conviction

under the valid theory. Ultimately, we need not decide whether

double jeopardy applies to the two counts of attempted murder

on which we find the evidence insufficient. We leave this

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question for the trial court to consider should the district

attorney seek retrial. Retrial is permitted, however, on the

remaining counts of attempted murder as to Pizano (count 3),

Ream Voeuth (count 6), Nath Sok (count 7), and Krisna Khan

(count 9). We hold the evidence was sufficient to support Hin’s

convictions for shooting at an inhabited dwelling (counts 10 and

12) and shooting at an occupied motor vehicle (count 13).

B. Gang Allegations

Hin next contends that all the gang findings in this case,

including the gang-murder special circumstance, must be

reversed and the case remanded for resentencing in light of

recent legislation amending the definition of criminal street

gang activity. As explained below, we hold that the evidence

presented at trial is insufficient to establish that members of

TRG participated in a “ ‘pattern of criminal gang activity.’ ”

(§ 186.22, subd. (e)(1).) Accordingly, we vacate the gang

enhancements on all six counts relating to the Bedlow Drive

shooting, the conviction of the crime of active participation in a

criminal street gang, and the gang-murder special

circumstance.

1. Background

As recounted above, the jury convicted Hin of several

crimes with gang-related allegations: the first degree murder of

Martinez, which the jury found “was committed by active

participants in a criminal street gang to further the activities of

. . . the gang within the meaning of” section 190.2,

subdivision (a)(22); three counts of attempted murder and three

counts of aiding and abetting of shooting at an inhabited motor

vehicle and at an inhabited residence related to the Bedlow

Drive incident, which the jury found were committed “for the

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benefit of, at the direction of, or in association with a criminal

street gang, with the specific intent to promote, further, or assist

in criminal conduct by gang members within the meaning of”

section 186.22, subdivision (b)(1); and one count of the crime of

active participation in a criminal street gang, in violation of

section 186.22, subdivision (a).

In 2021, the Legislature passed Assembly Bill No. 333

(2021–2022 Reg. Sess.) (Assembly Bill 333), which became

effective on January 1, 2022. (Stats. 2021, ch. 699.) Assembly

Bill 333 made the following changes to the law on active gang

participation and gang enhancements. “First, it narrowed the

definition of a ‘criminal street gang’ to require that any gang be

an ‘ongoing, organized association or group of three or more

persons.’ (§ 186.22, subd. (f), italics added.) Second, whereas

section 186.22, former subdivision (f) required only that a gang’s

members ‘individually or collectively engage in’ a pattern of

criminal activity in order to constitute a ‘criminal street gang,’

Assembly Bill 333 requires that any such pattern have been

‘collectively engage[d] in’ by members of the gang. (§ 186.22,

subd. (f), italics added.) Third, Assembly Bill 333 also narrowed

the definition of a ‘pattern of criminal activity’ by requiring that

(1) the last offense used to show a pattern of criminal gang

activity occurred within three years of the date that the

currently charged offense is alleged to have been committed;

(2) the offenses were committed by two or more gang ‘members,’

as opposed to just ‘persons’; (3) the offenses commonly benefitted

a criminal street gang; and (4) the offenses establishing a

pattern of gang activity must be ones other than the currently

charged offense. (§ 186.22, subd. (e)(1), (2).) Fourth, Assembly

Bill 333 narrowed what it means for an offense to have

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commonly benefitted a street gang, requiring that any ‘common

benefit’ be ‘more than reputational.’ (§ 186.22, subd. (g).)

“Finally, Assembly Bill 333 added section 1109, which

requires, if requested by the defendant, a gang enhancement

charge to be tried separately from all other counts that do not

otherwise require gang evidence as an element of the crime. If

the proceedings are bifurcated, the truth of the gang

enhancement may be determined only after a trier of fact finds

the defendant guilty of the underlying offense.” (People v. Tran

(2022) 13 Cal.5th 1169, 1206 (Tran).) Although Assembly

Bill 333 does not expressly address the gang-murder special

circumstance set forth in section 190.2, subdivision (a)(22), the

latter statute defines “criminal street gang” by express cross-

reference to section 186.22, subdivision (f).

Hin contends that he is entitled to the benefit of the new

legislation and that all gang-related findings in this case must

be vacated. The Attorney General concedes that the

ameliorative provisions of Assembly Bill 333’s amendments to

Penal Code section 186.22 apply to cases, including this one,

that were pending on direct appeal when the legislation took

effect — a position with which we agreed in Tran. (See Tran,

supra, 13 Cal.5th at pp. 1206–1207.) He argues, however, that

remand is unnecessary as to either the special circumstance or

the other gang allegations “because the jury would have made

the same findings even under AB 333’s more stringent new

requirements.” Although the Attorney General previously

argued that the amendments cannot be applied to the special

circumstance allegation because such application would be an

unconstitutional amendment to section 190.2,

subdivision (a)(22), which was enacted by ballot initiative, we

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concluded otherwise in People v. Rojas (2023) 15 Cal.5th 561,

566. We address each remaining argument in turn, mindful

that “[w]hen a substantive change occurs in the elements of an

offense and the jury is not instructed as to the proper elements,

the omission implicates the defendant’s right to a jury trial

under the Sixth Amendment, and reversal is required unless ‘it

appears beyond a reasonable doubt’ that the jury verdict would

have been the same in the absence of the error.” (Tran, supra,

13 Cal.5th at p. 1207.)

2. Elements of the Gang Allegations Under Assembly

Bill 333

Hin contends that the prosecution did not prove that the

predicate crimes conveyed a “common benefit” to the gang that

was “more than reputational.” (§ 186.22, subd. (g).) As

recounted above, the prosecutor presented evidence of three

uncharged predicate crimes underlying the gang allegations:

(1) the conviction of Rathana Chan for sales of a controlled

substance under Health and Safety Code section 11352

committed on July 30, 2001; (2) the sustained juvenile petition

for Sophear Om for burglary committed on February 15, 2002;

and (3) the conviction of Sarun Chun for second degree murder

in the shooting at Hammer Lane and Lan Ark Drive on

September 12, 2003. The prosecutor’s gang expert confirmed

that drug sales and burglary “generate[] revenue” and thereby

“support the gang.” She further testified that “hurt[ing] or

kill[ing] the people that are rival gang members” were forms of

retaliation that benefit gangs. She also testified that gangs

benefit from the commission of such crimes because they

enhance the gang’s reputation. As noted, such reputational

benefit is no longer sufficient to sustain a gang allegation under

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section 186.22, subdivision (g) as amended by Assembly

Bill 333. (See Stats. 2021, ch. 699, § 3.)

We recently considered a similar claim of “common

benefit” alternative-theory error in People v. Cooper (2023)

14 Cal.5th 73 (Cooper). As here, the jury in Cooper received

gang enhancement (§ 186.22, subd. (b)(1)(C)) instructions prior

to the passage of Assembly Bill 333. (Cooper, at p. 738.) And as

in Cooper, the Attorney General concedes that when jury

instructions are deficient for omitting an element of an offense,

they implicate the defendant’s federal constitutional rights, and

we review for harmless error under the standard of Chapman v.

California (1967) 386 U.S. 18. (Cooper, at p. 739.) In conducting

this review, we are mindful that “[t]hough it may be

‘permissible, as a general matter, to use circumstantial evidence

to prove a common benefit that is more than reputational’

[citation], our inquiry here is not whether a jury could have

found a more-than-reputational common benefit.” (People v.

Lamb (2024) 16 Cal.5th 400, 452, italics omitted.) Unlike a

sufficiency of the evidence claim, where we view the evidence in

the light most favorable to the prosecution and presume in

support of the judgment the existence of any facts the jury might

reasonably infer from the evidence, “our task in analyzing the

prejudice from the instructional error is whether any rational

fact finder could have come to the opposite conclusion.” (People

v. Mil (2012) 53 Cal.4th 400, 418, italics omitted.)

In Cooper, the defendant was convicted of first degree

murder with gang and firearm enhancements. (Cooper, supra,

14 Cal.5th at p. 738.) The gang expert testified that “a murder

like the one in th[at] case would benefit the gang by eliminating

a rival and by maintaining respect,” but did not testify about

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how the two alleged predicate offenses — robbery and sale of

narcotics convictions — benefited the gang. (Id. at p. 741.) We

explained that although there was evidence that robbery and

narcotics sales were among the types of activities in which a

gang typically engaged, the record contained no evidence that

the specific alleged predicate offenses benefited the gang.

(Cooper, at pp. 743–744.) Therefore, we reasoned, a rational

jury could find that only the predicate offenders themselves

benefited from the offenses in a non-reputational manner,

rather than “the gang as a whole” as Assembly Bill 333 requires.

(Cooper, at p. 739.) Accordingly, we held that the trial court’s

failure to instruct the jury that alleged predicate offenses must

have commonly benefited the gang in more than a reputational

manner was not harmless beyond a reasonable doubt. (Id. at

p. 746.)

As in Cooper, the gang expert here testified that the types

of crimes alleged as predicate offenses — drug sales, burglary,

and murder of a rival gang member — could have offered both

reputational and non-reputational benefits to a gang. For

example, she testified that gang members may generate revenue

for the gang by engaging in “drug sales,” “stealing cars,” and

“burglaries.” She also opined that gang members engage in

drive-by shootings as a way to enhance their own as well as the

“entire gang’s status.” However, as the Attorney General

acknowledges, Detective Nance did not offer any testimony as to

whether the specific alleged predicate offenses of Chan’s drug

sale or Om’s burglary benefited TRG as a whole, and the record

is otherwise silent as to the circumstances of those two predicate

offenses. In sum, the evidence does not show that either crime

was committed for the benefit of the gang rather than for

personal gain. On this record, as in Cooper, a rational juror

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could have concluded that these two predicate offenses “were

committed for personal gain alone.” (Cooper, supra, 14 Cal.5th

at p. 744.)

Therefore, even accepting the Attorney General’s

argument that the third predicate offense of murder of a rival

gang member necessarily benefited the gang as a whole,

Assembly Bill 333’s requirement that the jury find that at least

two predicate offenses were committed for a “common benefit”

that is “more than reputational” is not satisfied (§ 186.22,

subds. (e)(1), (g).) Because we cannot say the error was

harmless beyond a reasonable doubt, reversal of each gang

allegation is required under Assembly Bill 333. This applies to

the gang enhancements attached to six counts of attempted

murder (which we reverse on other grounds) and to the

conviction for active gang participation in count 15. The

changes effected by Assembly Bill 333 apply equally to the gang-

murder special circumstance (§ 190.2, subd. (a)(22)) (see People

v. Rojas, supra, 15 Cal.5th at p. 566), and require reversal of

that finding as well.

3. Sufficiency of the Evidence of the Gang-Murder

Special Circumstance

Hin argues that double jeopardy precludes retrial of the

gang-murder special circumstance because the evidence at trial

was insufficient to prove that Hin aided and abetted the murder

of Martinez to further the activities of TRG, even under the

statute in effect at that time. (Cf. People v. Sek (2022)

74 Cal.App.5th 657, 669–670 [retrial is permitted where the

appellate court finds only that the evidence was insufficient

under the law as amended posttrial by Assembly Bill 333]; id. at

p. 669 [“ ‘ “ ‘Where . . . evidence is not introduced at trial

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because the law at that time would have rendered it irrelevant,

the remand to prove that element is proper and the reviewing

court does not treat the issue as one of sufficiency of the

evidence.’ ” ’ ”].) Hin does not challenge the sufficiency of the

evidence under the law as it existed at trial as to the gang

enhancements related to the Bedlow Drive shooting, so our

discussion here is limited to the evidence pertaining to the

murder at American Legion Park.

Section 190.2, subdivision (a)(22) provides for the death

penalty or life imprisonment without the possibility of parole

where “[t]he defendant intentionally killed the victim while the

defendant was an active participant in a criminal street gang,

as defined in subdivision (f) of Section 186.22, and the murder

was carried out to further the activities of the criminal street

gang.” Hin contends that the evidence was insufficient to show

that he “aided and abetted Kak with the intent to kill Martinez

in order ‘to further the activities’ ” of TRG. We agree.

The Attorney General’s main theory — that Hin and Kak

committed the robbery and murder to recoup funds lost from

gambling and that they intended to use the stolen assets to

benefit TRG — rests almost entirely on Detective Nance’s expert

testimony. As noted, she opined that the robbery and murder of

Martinez at American Legion Park were gang related and were

committed to promote the TRG gang based upon the fact that

two members of the same gang were together, that they were

motivated to recover their gambling losses because a gang needs

money to survive, and her opinion that the crime was a form of

“training” of a younger gang member and the gun that was used

was “a TRG gun.” Other than this expert testimony, the record

contains little in support of the Attorney General’s theory.

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The prosecutor argued mixed motives as to the charged

crimes in closing argument, though his focus was primarily on

the reputational benefits to TRG. With respect to the murder

and attempted murder in American Legion Park, he argued that

Hin was motivated to recoup the money he had lost gambling

that evening, though without specifying whether the financial

benefit would accrue to him personally or to the gang. But with

respect to the gang-murder special circumstance, the prosecutor

argued only that the murder was carried out “in furtherance of

the gang” “so that the gang can exhibit its power and get that

type of influence over its rivals and because of the ability of the

gang to, in fact, carry out its activities and not to have police

intervene, such as these individuals” — i.e., a reputational

benefit. As to the gang enhancement for that incident (which

the jury found “not true”), the prosecutor argued a mixed motive:

“We . . know it was for the benefit of the gang, because it filled

the pockets of these gang members and increased their status

as showing their heart and their ability to, in fact, carry out the

gang’s activities.”

“[T]here have always been limits to what expert testimony

could show about a defendant’s reasons for committing a crime.”

(People v. Renteria (2022) 13 Cal.5th 951, 966 (Renteria).)

Although in Renteria we elucidated these limits in the context

of testimony concerning a gang enhancement under

section 186.22, subdivision (b)(1), its discussion of the limits on

expert testimony is relevant to the gang-murder special

circumstance as well.

We explained in Renteria: “First, this sort of expert

opinion proves too much. If generalized testimony about the

reputational benefits of a defendant’s violent crime were,

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standing alone, sufficient to support an inference that the

defendant committed the crime for the benefit of the gang, with

specific intent to promote, further, or assist its members’ crimes,

it would mean that essentially every violent crime committed by

a gang member could be punished more severely under

section 186.22(b) purely because of the defendant’s gang

membership. . . . [¶] Second, describing a benefit to the gang is

only part of the equation; the prosecution must also establish

that the defendant committed the underlying felony with the

specific intent to promote, further, or assist criminal conduct by

other gang members — a requirement we have described as

knowledge of at least some of the criminal activities of the gang

and its members and intent to further those activities. Without

more, evidence that committing a violent crime can enhance the

gang’s reputation for viciousness in the community does not

support an inference that the defendant committed a particular

violent crime for the benefit of the gang and with the intent to

facilitate known criminal activity by other gang members.”

(Renteria, supra, 13 Cal.5th at pp. 966–967.)

“None of this is to suggest that prosecutors may not rely

on expert opinion to connect the defendant’s crime with the

conduct of the gang and its members; to the contrary, we have

previously held that ‘ “[e]xpert opinion that particular criminal

conduct benefited a gang” is not only permissible but can be

sufficient to support the . . . section 186.22, subdivision (b)(1)

gang enhancement.’ (People v. Vang (2011) 52 Cal.4th 1038,

1048.) But important limitations apply to the use of such

testimony. Expert opinion, typically guided by hypothetical

questions, ‘ “must be rooted in facts shown by the evidence.” ’

(Id. at p. 1045.) They ‘ “may not be based ‘on assumptions of fact

without evidentiary support [citation], or on speculative or

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conjectural factors.’ ” ’ (Id. at p. 1046.)” (Renteria, supra,

13 Cal.5th at p. 967.) “Across cases, appellate courts have relied

on similar factors — whether the defendant’s gang membership

was apparent to observers, whether the victim was a gang

member or rival of the defendant’s gang, and whether

retaliation for prior gang activity or disputes prompted the

defendant’s crime — to describe the limits of reputation

evidence and ensure that it is grounded in specific facts that

show the defendant acted on behalf of a gang rather than for

personal reasons.” (Id. at p. 968.)

In light of the principles above, we hold that Detective

Nance’s testimony was insufficient to show that the murder of

Martinez was carried out to “further the activities of the

criminal street gang” under the law as it existed at the time of

trial. To reach such a conclusion on this record would stray into

the realm of speculation and conjecture and would not be

“grounded in specific facts.” (Renteria, supra, 13 Cal.5th at

p. 968.) There is no evidence that the money lost by Kak and

Hin when gambling was gang money, nor is there any evidence

that the money obtained from the robbery would have gone or

did go to the gang. There is also no evidence that the murder

was committed for the financial benefit of the gang.

As to the testimony that the crime was a form of

“training,” this theory rests on a mischaracterization of Pizano’s

account. The prosecution asked Detective Nance to explain the

significance of “an older gang member barking out orders and

the younger gang member holding the gun.” Detective Nance

responded that this was consistent with “an older member or a

more well-versed member . . . coaching, helping somebody else

commit these crimes and helping them along the way.”

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However, the record does not show that Hin gave instructions to

Kak or was “coaching” him along. Rather, Pizano’s testimony

was that Hin issued orders to her and Martinez telling them

what to do. Hin communicated with Kak in whispers as they

initially approached Pizano and Martinez, but the two did not

speak to each other as the events transpired. The simple fact

that Hin was older than Kak is not sufficient to show that the

crime was a form of “training,” at least where no other evidence

supported Detective Nance’s testimony. Given these missing

links, Detective Nance’s testimony does not constitute

substantial evidence that the murder was committed for the

benefit of the gang.

The Attorney General also points to evidence that (1) the

murder of Martinez was committed by two members of the TRG

gang; (2) a TRG gun was used; and (3) prior to the murder Hin

and Kak were whispering to each other. These facts establish

that both were active participants in TRG at the time of the

murders, but they do not show that the murder was committed

to further the activities of TRG. Not every crime committed by

gang members is for the benefit of the gang. (See People v.

Albillar (2010) 51 Cal.4th 47, 60 (Albillar).)

Finally, the Attorney General relies on Detective Nance’s

testimony that the commission of the murder could increase

respect for TRG by instilling fear in others. But there was no

evidence that Pizano or Martinez were members of a rival gang

or were targeted for a gang-related reason. Nor is there

evidence that American Legion Park is within TRG territory or

the territory of a rival gang, or that Hin and Kak said or did

anything to indicate their membership in TRG. With no

evidence that the victims or the public would know that the

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crime was committed by members of TRG, there is nothing to

suggest that the murder was intended to, or actually did, elevate

the status of TRG. Were we to conclude otherwise on this record,

then virtually any crime committed by a gang member could be

said to further the gang’s activities by virtue of the person’s gang

membership. Such a rule would “raise significant constitutional

concerns.” (Renteria, supra, 13 Cal.5th at p. 967.)

It is true we said in Albillar that “[e]xpert opinion that

particular criminal conduct benefited a gang by enhancing its

reputation for viciousness can be sufficient to raise the inference

that the conduct was ‘committed for the benefit of . . . a[]

criminal street gang . . . .’ ” (Albillar, supra, 51 Cal.4th at p. 63.)

But in that case, the victim and her assailants were

acquaintances, and she “knew that at least two of her assailants

were members of [a gang].” (Id. at pp. 51–52, 63.) One assailant

had a gang tattoo on his face, and the victim “ ‘feared that since

the suspects were gang members they [would] come after her

family.’ ” (Id. at p. 53.) In response to a hypothetical based on

the facts of the case, the expert explained: “ ‘More than likely

this crime is reported as not three individual named Defendants

conducting a rape, but members of [a gang] conducting a rape,

and that goes out in the community by way of mainstream

media or by way of word of mouth. That is elevating [the gang’s]

reputation to be a violent, aggressive gang that stops at nothing

and does not care for anyone’s humanity.’ ” (Id. at p. 63.) Here,

there is no evidence that Hin and Kak identified themselves to

Martinez and Pizano as members of TRG, or that Martinez or

Pizano otherwise knew Hin and Kak were members of TRG.

(See In re Daniel C. (2011) 195 Cal.App.4th 1350, 1363 [evidence

insufficient to support a gang enhancement where “nothing in

the record indicate[d] that [defendant] or his companions did

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anything . . . to identify themselves with any gang, other than

wearing clothing with red on it” and “there was no evidence that

[the victim] or any of the other persons who witnessed the crime

knew that gang members or affiliates were involved”].)

Because the record does not contain sufficient evidence

from which the jury could have found that the murder was

committed to further the activities of TRG even under the law

as it existed at the time of trial, retrial of the gang-murder

special-circumstance finding is not permitted.

Hin claims that the invalidity of the gang-murder special

circumstance requires reversal of the death judgment.

However, the jury properly considered two other valid special

circumstance findings — kidnapping-murder and robbery-

murder (§ 190.2, subd. (a)(17)(A), (B)) — and “an ‘invalidated

sentencing factor’ does not ‘render the [death] sentence

unconstitutional’ if ‘one of the other sentencing factors enables

the sentencer to give aggravating weight to the same facts and

circumstances.’ ” (People v. Debose (2014) 59 Cal.4th 177, 196.)

The facts that were presented to the jury as to the gang-murder

special circumstances could properly be considered as

circumstances of the charged crimes under section 190.3,

factor (a) (to the extent they concerned the charged crimes at

American Legion Park and Bedlow Drive) or section 190.3,

factor (b) (to the extent they concerned the uncharged crime at

Hammer Lane). “Because the jury was authorized to give

aggravating weight to these circumstances . . . our vacation of

the [gang-murder] special circumstance finding do[es] not

require reversal of the penalty.” (People v. Castaneda (2011)

51 Cal.4th 1292, 1354.)

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Because we hold that the evidence was insufficient to

support the gang-murder special circumstance, we need not

address Hin’s arguments challenging its validity on the grounds

that the trial court erred by failing to sua sponte instruct the

jury that Hin must have specifically intended for the murder in

American Legion Park to further the activities of a criminal

street gang, and that the trial court did not adequately respond

to a jury request related to the gang-murder special

circumstance.

C. Kidnapping-Murder Special-Circumstance

Finding

The jury was presented with three special circumstance

allegations and returned true findings on all three: robbery-

murder, kidnapping-murder, and gang-murder. Hin contends

the evidence was insufficient to support the finding of

kidnapping-murder. In reviewing this claim, “we apply the

same test used to determine the sufficiency of the evidence to

support a conviction of a criminal offense. We ‘review the whole

record in the light most favorable to the judgment below to

determine whether it discloses substantial evidence — that is,

evidence which is reasonable, credible, and of solid value — such

that a reasonable trier of fact could find the defendant guilty

beyond a reasonable doubt.’ ” (People v. Mayfield (1997)

14 Cal.4th 668, 790–791.)

To prove the special circumstance of kidnapping, “if there

is specific intent to kill, it is only required that there be proof of

the elements of” kidnapping, “even if the felony of kidnapping

. . . is committed primarily or solely for the purpose of

facilitating the murder.” (§ 190.2, subd. (a)(17)(M).) To prove

the crime of simple kidnapping, “the prosecution must generally

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‘prove three elements: (1) a person was unlawfully moved by the

use of physical force or fear; (2) the movement was without the

person’s consent; and (3) the movement of the person was for a

substantial distance.’ ” (People v. Bell (2009) 179 Cal.App.4th

428, 435.) Hin disputes only the last element, referred to as the

asportation element.

We addressed the asportation element for simple

kidnapping in People v. Martinez (1999) 20 Cal.4th 225

(Martinez). We explained that, in determining whether the

movement in question was “ ‘ “substantial in character,” ’ ” “the

jury should consider the totality of the circumstances.” (Id. at

p. 237.) “Thus, in a case where the evidence permitted, the jury

might properly consider not only the actual distance the victim

is moved, but also such factors as whether that movement

increased the risk of harm above that which existed prior to the

asportation, decreased the likelihood of detection, and increased

both the danger inherent in a victim’s foreseeable attempts to

escape and the attacker’s enhanced opportunity to commit

additional crimes.” (Ibid.)

On the record before us, we conclude that there is

sufficient evidence of asportation. The evidence established that

Hin and Kak apprehended Martinez and Pizano while they were

walking on the path on top of the levee in American Legion Park.

They took Martinez’s cash and Pizano’s purse, and then the man

without the gun “pointed” and told them to “ ‘[g]o down there by

the gate,’ ” indicating a fence adjacent to the park. By Pizano’s

estimate, defendants and their victims walked about 15 feet

down the hill. The area at the bottom of the levee was

“extremely dark,” albeit closer to neighboring homes. A

detective who responded on the night of the homicide estimated

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that Martinez’s body was found “maybe 30 feet, give or take”

from the top of the levee; another officer testified that Martinez’s

body was found 35 feet from the walkway.

A rational trier of fact could have concluded that the

victims were moved a substantial distance based on the factors

articulated in Martinez. The movement to the bottom of the hill

increased the risk of harm to the victims by isolating them from

other park patrons in a more secluded area where they were less

visible to others. Similarly, a rational finder of fact could have

determined that the darkness decreased the likelihood of

detection and enhanced defendants’ opportunity to commit

additional crimes. Indeed, during his interview with law

enforcement, Hin admitted to telling the victims to “stay away

from the light” or “to go to the dark side” because Pizano had

“seen [his] face.” And because the evidence suggests that Kak

murdered Martinez at the bottom of the levee, a rational juror

could have also determined that “[t]he movement not only

increased the risk of harm to the victims, but it also caused

additional harm in fact.” (People v. Simmons (2015)

233 Cal.App.4th 1458, 1472, italics omitted.)

It is true that “contextual factors, whether singly or in

combination, will not suffice to establish asportation if the

movement is only a very short distance.” (Martinez, supra,

20 Cal.4th at p. 237.) But the victim’s movement in this case —

30 to 35 feet down a hill at gunpoint — is enough to justify the

consideration of contextual factors. (See People v. Arias (2011)

193 Cal.App.4th 1428, 1435–1436 [considering Martinez’s

contextual factors and finding sufficient evidence of asportation,

where victim was moved 15 feet to the inside of his apartment

to facilitate the defendant’s search for gang members].)

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