Petition for Writ of Certiorari — Mao Hin, Petitioner v. California
Supreme Court briefJul 15, 2025
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No. ________
In the Supreme Court of the United States
MAO HIN,
Petitioner,
v.
STATE OF CALIFORNIA,
Respondent.
ON PETITION FOR A WRIT OF CERTIOARI
TO THE SUPREME COURT OF THE STATE OF CALIFORNIA
PETITION FOR A WRIT OF CERTIOARI
CAPITAL CASE
Donald R. Tickle,
Counsel of Record
909 New Jersey Ave. SE, No. 1302
Washington, DC 20003
(202) 695-9405
dontickle@gmail.com
Counsel of Record for Petitioner
In Forma Pauperis
Mao Hin, F17048
CAPITAL CASE - QUESTION PRESENTED
Whether California’s capital-sentencing scheme violates the Fifth, Sixth,
Eighth, and Fourteenth Amendments because it fails to require the jury to
find unanimously and beyond a reasonable doubt the facts necessary to impose
a sentence of death rather than life without possibility of parole?
i
STATEMENT OF RELATED PROCEEDINGS
The petitioner’s related cases are his case in the trial court, San Joaquin
County Superior Court Case No. SF090168B, and his direct appeal to the California Supreme Court, People v. Mao Hin, Case No. S141519.
ii
TABLE OF CONTENTS
Page
CAPITAL CASE - QUESTION PRESENTED ................................................... i
STATEMENT OF RELATED PROCEEDINGS ........................................... ii
TABLE OF CONTENTS .................................................................................... iii
TABLE OF AUTHORITIES ............................................................................... v
ON PETITION FOR A WRIT OF CERTIORARI TO THE
CALIFORNIA SUPREME COURT - CAPITAL CASE ..................................... 1
OPINIONS BELOW ...................................................................................... 1
BASIS FOR JURISDICTION ........................................................................ 1
FEDERAL CONSTITUTIONAL PROVISIONS, CALIFORNIA
STATUTES, AND CALIFORNIA JURY INSTRUCTIONS. ....................... 1
A. Federal Constitutional Provisions............................................................. 1
B. California Statutory Provisions. ................................................................ 2
C. California Jury Instructions. ..................................................................... 2
STATEMENT OF THE CASE ...................................................................... 2
A. California's Death Penalty Scheme. .......................................................... 2
B. Petitioner’s Case......................................................................................... 5
REASONS FOR GRANTING THE PETITION ........................................... 9
I.
This Court has recognized that federal constitutional trial rights
include a unanimous jury finding beyond a reasonable doubt of
every fact, other than a prior conviction, serving to increase the
maximum penalty for a crime. ...................................................................... 9
II. California’s death-penalty statute violates federal constitutional
standards by not requiring that the jury to unanimously find
beyond a reasonable doubt those facts necessary to select a
death sentence. ............................................................................................ 15
III. The conflict in the lower courts in applying this Court’s
precedent to capital sentencing proceedings supports granting
certiorari....................................................................................................... 17
IV. This California capital case is an appropriate vehicle for
resolving the conflict in the lower courts. .................................................. 21
CONCLUSION ............................................................................................. 22
APPENDIX TABLE OF CONTENTS .............................................................. 23
APPENDIX A Denial of Rehearing and Modified Opinion ............................. 24
iii
APPENDIX B California Penal Code Provisions ............................................175
APPENDIX C California Jury Instructions - Criminal ..................................190
iv
Table of Authorities
Page
Cases:
Addington v. Texas
441 U.S. 418 (1979) .................................................................................... 11
Andres v. United States
333 U.S. 740 (1948) .............................................................................. 10, 11
Apprendi v. New Jersey
530 U.S. 466 (2000) ............................................................................ passim
Cunningham v. California
549 U.S. 270 (2007) .................................................................................... 13
Descamps v. United States
570 U.S. 254 (2013) .................................................................................... 13
Erlinger v. United States
602 U.S. 821 (2024)
[144 S.Ct. 1840] .......................................................................................... 13
Ford v. Wainwright
477 U.S. 399 (1986) .................................................................................... 11
Hurst v. Florida
577 U.S. 92 (2016) .................................................................... 14, 15, 16, 20
In re Winship
397 U.S. 358 (1970) .................................................................................... 11
Jackson v. Virginia
443 U.S. 307 (1979) ...................................................................................... 9
Mullaney, et al. v. Wilbur
421 U.S. 684 (1975) .............................................................................. 11, 12
Nunnery v. State
263 P.3d 235 (Nev. 2011) ........................................................................... 19
Oregon v. Guzek
546 U.S. 417 (2006) .................................................................................... 10
People v. Becerrada
2 Cal. 5th 1009 (2017) .......................................................................... 16, 21
People v. Beck
8 Cal. 5th 548 (2019) ............................................................................ 16, 21
v
People v. Capers
7 Cal. 5th 989 (2019) ............................................................................ 16, 21
People v. Johnson
8 Cal. 5th 575 (2019) ............................................................................ 16, 21
People v. Jones
3 Cal. 5th 583 (2017) ............................................................................ 16, 21
People v. McKinzie
54 Cal. 4th 1302 (2012) .............................................................................. 20
People v. Montes
58 Cal. 4th 809 (2014) .................................................................................. 5
People v. Montour
157 P.3d 489 (Colo. 2007) .......................................................................... 18
People v. Powell
6 Cal. 5th 136 (2018) ............................................................................ 16, 21
People v. Rangel
62 Cal. 4th 1192 ................................................................................... 16, 21
Rauf v. State
145 A.3d 430 (Del. 2016) ...................................................................... 17, 18
Ring v. Arizona
536 U.S. 584 (2002) ............................................................................ passim
Ritchie v. State
809 N.E.2d 258 (Ind. 2004) ........................................................................ 19
S. Union Co. v. United States
567 U.S. 343 (2012) .................................................................................... 15
State v. Lotter
301 Neb. 125 (2018) ................................................................................... 19
State v. Poole
297 So. 3d 487 (2023) ................................................................................. 19
State v. Wood
580 S.W.3d 566 (Mo. banc 2009) ............................................................... 18
United States v. Barnett
496 F.3d 1079 (10th Cir. 2007) .................................................................. 19
United States v. Gabrion
719 F.3d 511 (6th Cir. 2013) ...................................................................... 19
United States v. Gaudin
515 U.S. 506 (1995) ...................................................................................... 9
vi
United States v. Runyon
707 F.3d 475 (4th Cir. 2013) ...................................................................... 19
Walton v. Arizona
497 U.S. 639 (1990) .................................................................................... 13
Woldt v. People
64 P.3d 256 (Colo. 2003) ............................................................................ 18
Woodward v. Alabama
571 U.S. 1045 (2013) .................................................................................. 18
Statutes:
28 U.S.C. § 1257 ............................................................................................... 1
Cal. Penal Code § 186.22 ................................................................................. 5
Cal. Penal Code § 187 .................................................................................. 2, 5
Cal. Penal Code § 188 ...................................................................................... 2
Cal. Penal Code § 189 ...................................................................................... 5
Cal. Penal Code § 190 .................................................................................. 2, 3
Cal. Penal Code § 190.1 ............................................................................. 2, 15
Cal. Penal Code § 190.2 ........................................................................... 2, 3, 5
Cal. Penal Code § 190.3 ..................................................................... 2, 3, 4, 16
Cal. Penal Code § 190.4 ................................................................................... 2
Cal. Penal Code § 190.4 ................................................................................. 16
Cal. Penal Code § 190.5 ................................................................................... 2
Cal. Penal Code § 211 ...................................................................................... 5
Cal. Penal Code § 246 ...................................................................................... 5
Cal. Penal Code § 664 ...................................................................................... 5
Cal. Penal Code § 12022.53 ............................................................................. 5
Fla. Stat. § 921.141 ........................................................................................ 14
Constitutions:
U.S. Const., 5th Amend. ........................................................................ passim
U.S. Const., 6th Amend. ........................................................................ passim
U.S. Const., 8th Amend. .................................................................. 2, 8, 10, 20
U.S. Const., 14th Amend. ...................................................................... passim
vii
Other:
4 W. Blackstone, Commentaries on the Laws of England (1769) ............... 10
CALJIC No. 8.86 .......................................................................................... 2, 4
CALJIC No. 8.87 .......................................................................................... 2, 4
CALJIC No. 8.88 ...................................................................................... 2, 7, 8
viii
ON PETITION FOR A WRIT OF CERTIORARI TO THE
CALIFORNIA SUPREME COURT CAPITAL CASE
Petitioner Mao Hin respectfully petitions for a Writ of Certiorari to review
the decision of the Supreme Court of the State of California affirming his conviction for aiding and abetting felony murder and sentence of death.
OPINIONS BELOW
The California Supreme Court issued its initial opinion on February 3, 2025,
which it modified with the denial of rehearing on April 23, 2025. The case as
modified is reported as People v. Mao Hin (2025) 17 Cal.5th 401 [563 P.3d 514;
329 Cal. Rptr. 3d 612]. The denial of rehearing is reported as People v. Mao
Hin, 2025 Cal. LEXIS 2301. The April 23, 2025, order denying rehearing and
modifying the February 3, 2025, opinion is attached as Appendix A and cited
as “Opinion” in the following pages.
BASIS FOR JURISDICTION
With the denial of rehearing by the California Supreme Court on April 23,
2025, this petition is timely under Rules 13.1 and 13.3 of this Court. The Court
has jurisdiction by 28 U.S.C. section 1257(a).
FEDERAL CONSTITUTIONAL PROVISIONS,
CALIFORNIA STATUTES, AND CALIFORNIA JURY
INSTRUCTIONS.
A. Federal Constitutional Provisions.
The Fifth Amendment to the United States Constitution provides in pertinent part: “No person shall … be deprived of life, liberty, or property without
due process of law ….”
1
The Sixth Amendment to the United States Constitution provides in pertinent part: “In all criminal prosecutions the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the state and district wherein
the crime may have been committed ….”
The Eighth Amendment provides in pertinent part: “Excessive bail shall not
be required, … nor cruel and unusual punishments inflicted.”
The Fourteenth Amendment provides in pertinent part: “[N]or shall any
state deprive any person of life, liberty, or property, without due process of law
....”
B. California Statutory Provisions.
The relevant California Penal Code provisions are attached as Appendix B
and include the following: California Penal Code sections 187, 188, 190, 190.1,
190.2, 190.3, 190.4, and 190.5.
C. California Jury Instructions.
The relevant California Jury Instructions –Criminal (“CALJIC”) are attached as Appendix C and include the following: CALJIC Nos. 8.86, 8.87, and
8.88.
STATEMENT OF THE CASE
A. California's Death Penalty Scheme.
Petitioner was convicted and sentenced under California's death penalty law
as adopted by a voter initiative in 1978. Cal. Penal Code, §§ 190–190.4. Under
this scheme, the trier of fact (a jury if so requested by the defendant as in this
case) must first determine beyond a reasonable doubt whether the defendant
2
committed an offense for which the defendant may be eligible for the penalty of death or life in prison without the possibility of parole. Cal. Penal Code,
§§ 190(a), 190.3. If the jury makes that finding, it also determines at a separate penalty selection trial whether the defendant’s punishment will be "death
or imprisonment in the state prison for life without the possibility of parole."
Cal. Penal Code, § 190.2, subd. (a).
At the penalty trial, the parties may present evidence “as to any matter relevant to aggravation, mitigation, and sentence ....” Cal. Penal Code, § 190.3.
The court instructs the jury that an aggravating factor is “any fact, condition
or event attending the commission of the crime which increases its severity or
enormity, or adds to its injurious consequences which is above and beyond the
elements of the crime itself.” California Jury Instructions, Criminal (CALJIC)
No. 8.88; Appendix C; People v. Steele, 27 Cal.4th 1230, 1258 & fn. 9 (2002)
(recognizing CALJIC No. 8.88 as “the standard penalty phase concluding instruction”).
Penal Code Section 190.3 lists the aggravating and mitigating factors the jury is to consider, if relevant:
(a) The circumstances of the crime of which the defendant was convicted
in the present proceeding and the existence of any special circumstances
found to be true pursuant to Section 190.1.
(b) The presence or absence of criminal activity by the defendant which
involved the use or attempted use of force or violence or the express or
implied threat to use force or violence.
(c) The presence or absence of any prior felony conviction.
(d) Whether or not the offense was committed while the defendant was
under the influence of extreme mental or emotional disturbance.
3
(e) Whether or not the victim was a participant in the defendant’s homicidal conduct or consented to the homicidal act.
(f) Whether or not the offense was committed under circumstances
which the defendant reasonably believed to be a moral justification or
extenuation for his conduct.
(g) Whether or not defendant acted under extreme duress or under the
substantial domination of another person.
(h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, or the effects of intoxication.
(i) The age of the defendant at the time of the crime.
(j) Whether or not the defendant was an accomplice to the offense and
his participation in the commission of the offense was relatively minor.
(k) Any other circumstance which extenuates the gravity of the crime
even though it is not a legal excuse for the crime.
A “sentence of confinement to state prison for a term of life without the possibility of parole" is required under the California sentencing scheme unless the
jury finds one or more aggravating circumstances and "concludes that the aggravating circumstances outweigh the mitigating circumstances." Cal. Penal
Code § 190.3.
However, the jury is instructed that the burden of proof beyond a reasonable
doubt applies only to finding whether the defendant has been involved in actual or attempted criminal activity involving force or violence (known as “factor (b)”) and/or whether he has prior felony convictions (known as “factor (c)”).
Cal. Penal Code § 190.3(b) & (c); CALJIC Nos. 8.86 & 8.87. Under California
law, ”[t]he jury need not … find beyond a reasonable doubt that an aggravating circumstance is proved (except for § 190.3 factors (b) & (c)), find beyond
4
a reasonable doubt that aggravating circumstances outweigh mitigating circumstances, or find beyond a reasonable doubt that death is the appropriate
penalty.” People v. Montes, 58 Cal. 4th 809, 899 (2014).
B. Petitioner’s Case.
On November 22, 2005, a jury in the guilt phase of the trial convicted petitioner of one count of first degree murder (Cal. Penal Code, §§ 187, subds.
(a), 189), with robbery, kidnapping, and gang-murder special circumstances
(Cal. Penal Code, §§ 190.2, subds. (a)(17)(A), (a)(17)(B), (a)(22)), and found
that a principal (but not petitioner) personally and intentionally discharged a
firearm causing death (Cal. Penal Code, § 12022.53, subds. (d) & (e)). 4 Clerk’s
Transcript (“CT”) 1113–1115. The jury also convicted petitioner of several lesser crimes most of which were reversed by the California Supreme Court and
are not at issue here.¹ The California Supreme Court reversed the gang-murder special circumstance but affirmed the first degree murder conviction with
robbery and kidnapping special circumstances. Opinion at 2, 43, 76–85, 144.
¹ The jury also convicted appellant of six counts of willful, deliberate and premeditated attempted murder, Cal. Penal Code, §§ 664, subd. (a), 187, subd. (a), two
counts of second degree robbery, Cal. Penal Code, § 211, with both the attempted
murders and robberies involving use of a firearm by a principal, Cal. Penal Code,
§ 12022.53, subds. (c), (d) & (e), two counts of shooting at an inhabited dwelling,
Cal. Penal Code, § 246, one count of shooting at an occupied vehicle, ibid., with all
but one of the crimes committed for the benefit, etc., of a criminal street gang, Cal.
Penal Code, § 186.22, subd. (b)(1), plus one count of being an active participant in a
criminal street gang, Cal. Penal Code, § 186.22, subd. (a)). 4 CT 1116-1133; 6 CT
1542. The California Supreme Court reversed all of the attempted murder convictions with related gang and firearm sentencing allegations. Opinion at 2-3, 57, 144.
5
On December 6, 2005, the penalty phase trial began. 4 CT 1151. The prosecution presented evidence of petitioner’s possession of a rap song,² and his
alleged involvement in four uncharged incidents of prior criminal activity involving force or violence: two drive-by shootings; the battery of the manager of
the apartment building; and shooting at a van leaving the parking lot of the
apartment building. Opinion at 11–12. The prosecution also offered victim impact evidence from the family and friends of the murder victim. Id. at 13.
The defense case in mitigation included, inter alia, rebuttal evidence that:
when the victim of the alleged battery reported the incident to the police the
day after it occurred, he did not identify petitioner as the perpetrator although
he knew petitioner;³ none of the victims to the drive-by shootings identified petitioner as shooting or encouraging another to shoot;⁴ and there was percipient
witness testimony and physical evidence indicating that someone other than
petitioner shot at the moving van.⁵
² The California Supreme Court found that the rap song should not have been admitted in evidence because “the prosecution did not argue or introduce any evidence
to show that Hin was involved in the creation or production of the song or that it described any of the charged crimes.” Opinion at 97–98. As a result, “the risk of undue
prejudice substantially outweighed the song’s probative value at the penalty phase”
as well as the guilt phase of the trial. Id. at 101–02.
³ 18 RT 5093–5094, 5204–5206, 5208–5210.
⁴ 7 RT 1796, 1809–13, 1815, 1833, 1841, 1882–83,1846; 17 RT 5034–5035, 5045
⁵ 18 RT 5093–5094, 5204–5206, 5208–5210.
6
The trial court instructed the penalty jury pursuant to CALJIC No. 8.88 that
there was no requirement of unanimity on aggravating circumstances or burden of proof beyond a reasonable doubt to impose a death sentence rather than
life without parole:
In weighing the various circumstances you must determine under the
relevant evidence which penalty is justified and appropriate by considering the totality of the aggravating circumstances with the totality of
the mitigating circumstances. To return a judgment of death, each of you
individually must be persuaded that the aggravating circumstances are
so substantial in comparison with the mitigating circumstances that it
warrants death rather than life without parole. CALJIC No. 8.88; 5 CT
1186, 1232; 20 RT 5743.
At 3:45 p.m. on the fifth day of penalty deliberations (December 22, 2005),
the jury sent a note to the trial judge indicating a deadlock on the question of
penalty: “The jury would like to know if we cannot arrive at a consensus in the
penalty phase of this trial, does the penalty default to life in prison without
the possibility or parol[e]? Would you explain this process to the jury.” 5 CT
1267. The court responded by instructing the jurors that they should not be
concerned with that question and to “attempt to reach a verdict, if possible.”
20 RT 5799. The jury continued deliberations for a full day on December 23,
2005 without returning a verdict. 5 CT 1177–78. After a break for the yearend holidays, they resumed deliberations on January 6, 2006, and returned a
death verdict that morning, i.e., on the seventh day of penalty deliberations. 5
CT 1266, 1275–1276; 20 RT 5805, 5818–20.
On February 24, 2006, the court sentenced appellant to death for the murder. 6 CT 1502.
7
Petitioner addressed the court at sentencing. He denied shooting anyone
during the robbery of the murder victim. To the victim’s family, he 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. … I want you guys to
know I’m very sorry.” Opinion at 15.
Citing, inter alia, Apprendi v. New Jersey, 530 U.S. 466 (2000) (Apprendi)
and Ring v. Arizona, 536 U.S. 584 (2002) (Ring), petitioner on appeal challenged the California death penalty law as violating the Fifth, Sixth, Eighth,
and Fourteenth Amendments because the critical jury instruction (CALJIC
No. 8.88) did not require jurors to find unanimously and beyond a reasonable
doubt that an aggravating factor exists or that aggravating factors outweighed
mitigating factors in order to impose a sentence of death rather than life without parole. See Appellant's Opening Brief (“AOB”), filed July 26, 2013, California Supreme Court Case. No. S142951, Argument XVIII., Sections G., H., & J.
at 393, 399–404.
On February 3, 2025, the California Supreme Court rejected appellant’s
claims, stating: “‘The death penalty statute does not lack safeguards to avoid
arbitrary and capricious sentencing, deprive defendant of the right to a jury
trial, or constitute cruel and unusual punishment on the ground that it does
not require either unanimity as to the truth of aggravating circumstances or
findings beyond a reasonable doubt that an aggravating circumstance (other
8
than Pen. Code § 190.3, factor (b) or (c) evidence) has been proved, that the
aggravating factors outweighed the mitigating factors, or that death is the appropriate sentence.” ([People v. Rangel (2016) 62 Cal.4th 1192] at p. 1235.)
We have previously held that nothing in Hurst v. Florida (2016) 577 U.S. 92,
Cunningham v. California (2007) 549 U.S. 270, Blakely v. Washington (2004)
542 U.S. 296, Ring v. Arizona (2002) 536 U.S. 584, or Apprendi v. New Jersey
(2000) 530 U.S. 466 affects our conclusions in this regard. (Rangel, at p. 1235
& fn. 16.) … “‘No burden of proof is constitutionally required, nor is the trial
court required to instruct the jury that there is no burden of proof.’ [(People v.
Dement (2011) 53 Cal.4th 1, 55)].” Opinion at 141–142 (emphasis added).
REASONS FOR GRANTING THE PETITION
Certiorari Should Be Granted To Decide Whether California’s Death
Penalty Scheme Violates The Fifth, Sixth, Eighth, And Fourteenth
Amendments By Failing To Require That Any Fact, Other Than A
Prior Conviction, Must Be Unanimously Found By The Jury Beyond
A Reasonable Doubt In Order To Increase The Penalty For Murder
From Life Imprisonment To Death.
I. This Court has recognized that federal constitutional trial rights
include a unanimous jury finding beyond a reasonable doubt of
every fact, other than a prior conviction, serving to increase the
maximum penalty for a crime.
The Fifth, Sixth and Fourteenth Amendments “require criminal convictions
to rest upon a jury determination that the defendant is guilty of every element
of the crime with which he is charged, beyond a reasonable doubt.” United
States v. Gaudin, 515 U.S. 506, 510 (1995); Jackson v. Virginia, 443 U.S. 307,
9
315 (1979). In addition, "the truth of every accusation, whether preferred in the
shape of indictment, information, or appeal, should afterwards be confirmed
by the unanimous suffrage of twelve of [the defendant's] equals and neighbours.’” Apprendi, 530 U.S. at 477, quoting 4 W. Blackstone, Commentaries on
the Laws of England 343 (1769) (emphasis added by Apprendi Court).
A long series of decisions show that the same standards of unanimity and
proof should apply to all factual determinations necessary for the jury to decide whether the penalty for murder shall be death rather than life without
possibility of parole.
In 1948, the Court recognized that “[i]n death cases doubts … should be resolved in favor of the accused.” Andres v. United States, 333 U.S. 740, 752
(1948). Moreover, “[u]nanimity in jury verdicts is required where the Sixth
and Seventh Amendments apply. In criminal cases this requirement of unanimity extends to all issues -- character or degree of the crime, guilt and punishment -- which are left to the jury.” Id. at 748 (emphasis added). Even if a
statute “contains no language specifically requiring unanimity on both guilt
and punishment before a verdict can be brought in, … the jury's decision upon
both guilt and whether the punishment of death should be imposed must be
unanimous.” Id. at 748–49.
The Eighth Amendment also imposes a heightened standard of reliability
in factfinding in capital sentencing proceedings. See, e.g., Oregon v. Guzek,
546 U.S. 417, 525–26 (2006) ("The Eighth Amendment insists upon 'reliability
10
in the determination that death is the appropriate punishment in a specific
case.’”); Ford v. Wainwright, 477 U.S. 399, 411 (1986) (“In capital proceedings
generally, this Court has demanded that factfinding procedures aspire to a
heightened standard of reliability.”); Ring, 536 U.S. at 614, 616, Breyer, J.,
concurring in the judgement (“jury sentencing in capital cases is mandated by
the Eighth Amendment”).
The rationale for these rules is that the “reasonable-doubt standard plays a
vital role in the American scheme of criminal procedure” In re Winship, 397
U.S. 358, 363 (1970), serving “to exclude as nearly as possible the likelihood
of an erroneous judgment” Addington v. Texas, 441 U.S. 418, 423 (1979), and
the requirement of unanimity “is more consonant with . . . the history of the
Anglo-American jury system[.]” Andres, 333 U.S. at 749.
In Mullaney, et al. v. Wilbur, 421 U.S. 684 (1975), the Court applied these
principles to hold that the state rather than the defendant must bear the burden of proof on whether evidence of heat of passion on sudden provocation
mitigated murder to manslaughter. Id. at 684. In so doing, Mullaney showed
that due process standards of proof apply to factors affecting penalty determination. “The safeguards of due process are not rendered unavailing simply
because a determination may already have been reached that would stigmatize the defendant and that might lead to a significant impairment of personal liberty.” Id. at 698. “Moreover, if Winship were limited to those facts that
constitute a crime as defined by state law, a State could undermine many of
11
the interests that decision sought to protect without effecting any substantive
change in its law. It would only be necessary to redefine the elements that constitute different crimes, characterizing them as factors that bear solely on the
extent of punishment.” Id.
Apprendi, 530 U.S. 466, applied similar reasoning. There, the defendant
pled guilty to multiple felonies arising from his firing “several .22-caliber bullets into the home of an African-American family that had recently moved into
a previously all-white neighborhood." Id. at 468–69. To evaluate a hate crime
sentencing enhancement carrying an extended term of imprisonment, the trial
judge held an evidentiary hearing and found by a preponderance of the evidence "that the evidence supported a finding ‘that the crime was motivated by
racial bias.'" Id. at 471.
Apprendi reversed the judgement because the factual determination of a
racial purpose increasing the defendant's penalty for the crime was the “functional equivalent of an element of a greater offense than the one covered by
the jury's guilty verdict.” Apprendi, 530 U.S. at 490–495 & fn. 19. Therefore,
the Due Process Clause of the Fourteenth Amendment and the Sixth Amendment required such a sentencing factor to be found unanimously and beyond
a reasonable doubt by the jury. Apprendi, at 476–478. “Merely using the label
`sentence enhancement' to describe [facts increasing punishment] surely does
not provide a principled basis for treating them differently” from the elements
of an offense. Id. As Apprendi put it, “the relevant inquiry is one not of form,
12
but of effect - does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?” Apprendi, 530 U.S.
at 494.
Since Apprendi, the Court has repeatedly reaffirmed its core requirements
of unanimity and proof beyond a reasonable doubt of facts essential to punishment. See, e.g., Erlinger v. United States, 602 U.S. 821, 144 S.Ct. 1840,
1849–50 (2024) (The Fifth Amendment right to due process of law and the
Sixth Amendment right to trial by jury “requir[e] a unanimous jury to find
every fact essential to an offender's punishment”); Descamps v. United States,
570 U.S. 254, 269 (2013) (Beyond the recognition of a prior conviction, the
Sixth Amendment "contemplates that a jury— not a sentencing court—will
find such [sentencing] facts, unanimously and beyond a reasonable doubt.");
Cunningham v. California, 549 U.S. 270, 281–82 (2007) (The Sixth and Fourteenth Amendments require the jury to unanimously find beyond a reasonable
doubt the facts necessary to impose an upper term sentence.).
In Ring, the Court applied Apprendi to Arizona’s capital sentencing scheme
and overruled Walton v. Arizona, 497 U.S. 639 (1990) which held to the contrary that, “‘[o]nce a jury has found the defendant guilty of all the elements
of an offense which carries as its maximum penalty the sentence of death, it
may be left to the judge to decide whether that maximum penalty, rather than
a lesser one, ought to be imposed.’” Ring, 536 U.S. at 602, citation and internal quotation omitted. Ring concluded that Walton's distinction "between ele-
13
ments of an offense and sentencing factors" was "untenable" in light of Apprendi. Id. at 604. Ring instead established a bright-line rule: “If a State makes an
increase in a defendant’s authorized punishment contingent on the finding of
a fact, that fact—no matter how the State labels it—must be found by a jury
beyond a reasonable doubt.” Ring, at 602.
Applying this mandate, the Court in Hurst v. Florida, 577 U.S. 92, 136 S.Ct.
616 (2016) struck down a Florida capital sentencing scheme that it had previously upheld under the Sixth Amendment. Hurst, 136 S.Ct. at 619. Under
Florida's death penalty scheme at the time (as currently in California), a defendant convicted of a capital felony could receive a maximum sentence of life
imprisonment based on the conviction alone. Id. at 620. Under the Florida
statute, the jury, after returning its verdict of conviction, rendered an advisory
verdict of death or a life term in the sentencing proceeding, but the judge was
responsible for finding that “sufficient aggravating circumstances exist” and
“that there are insufficient mitigating circumstances to outweigh aggravating
circumstances,” which were the prerequisites for imposing a death sentence.
Id. at 622, citing Fla. Stat. § 921.141(3).)
Hurst found that these determinations were part of the “necessary factual
finding that Ring requires.” Id. at 622. As reaffirmed by Hurst, “[t]he Sixth
Amendment requires a jury, not a judge, to find each fact necessary to impose
14
a sentence of death.” Id. at 619. And, if “a jury's factfinding … is necessary for
imposition of the death penalty” id. at 624, it must be made “beyond a reasonable doubt.” Id. at 621.
In sum, under the line of authority from Andres to Hurst, a defendant’s federal constitutional trial rights in capital sentencing proceedings require that
any fact (other than a prior conviction) increasing the penalty from a life term
to death must be submitted to a jury (unless waived) and unanimously found
beyond a reasonable doubt. It does not matter if the additional fact to be found
is termed an "aggravating circumstance", a "sentencing factor", or a “sentence
enhancement" because “‘the relevant inquiry is one not of form, but of effect.'"
Ring, 536 U.S. at 604–05, quoting Apprendi, 530 U.S. at 494; accord S. Union
Co. v. United States, 567 U.S. 343, 358–359 (2012) ("Apprendi and its progeny have uniformly rejected" the argument "that in determining the maximum
punishment for an offense, there is a constitutionally significant difference between a fact that is an ‘element’ of the offense and one that is a ‘sentencing
factor.’”).
II. California’s death-penalty statute violates federal constitutional
standards by not requiring that the jury to unanimously find beyond a reasonable doubt those facts necessary to select a death
sentence.
The specific defect in California’s capital sentencing scheme differs from
that at issue in Ring and Hurst because California law permits the defendant,
as petitioner did in his case, to request a jury to determine whether the penalty shall be death or life in prison without parole. Cal. Penal Code, §§ 190.1,
15
190.3. In addition, the jury must “reach a unanimous verdict as to what the
penalty shall be[.]” Cal. Penal Code, § 190.4(b). On this basis, the California Supreme Court has concluded that California's capital sentencing scheme
passes scrutiny because a California jury's sentencing verdict "is not merely
'advisory.'" People v. Rangel, 62 Cal. 4th 1192, 1235, n. 16, quoting Hurst, 577
U.S. at at 622.⁶
This putative distinction overlooks this Court’s emphasis that "`the relevant
inquiry is one not of form, but of effect.'" Ring, 536 U.S. at 604, quoting Apprendi, 530 U.S. at 494. Hurst refers not simply to the finding of an aggravating circumstance, but as noted, to the finding of “each fact necessary to impose
a
sentence of death.” Hurst, 577 U.S. at 94. And Ring shows that it does not matter how a state labels the fact: if it increases a defendant’s authorized punishment, it must be unanimously found by the jury beyond a reasonable doubt.
Ring, 536 U.S. at 602.
To illustrate the constitutional flaw, suppose (as in this case) that the prosecution presents evidence of several uncharged, prior criminal acts (A, B, and
C), known as factor (b) evidence. Cal. Penal Code, § 190.3, subd. (b). Some jurors may find that A was proven beyond a reasonable doubt, but not B and C;
⁶ Rangel is cited in virtually every subsequent California Supreme Court decision
upholding California's scheme against Hurst challenges, including this one. Opinion
at 141-142; see, e.g., People v. Beck, 8 Cal. 5th 548, 670 (2019);, People v. Johnson, 8
Cal. 5th 575, 593–94 (2019); People v. Capers, 7 Cal. 5th 989, 1014 (2019); People v.
Powell, 6 Cal. 5th 136, 193, n. 36 (2018); People v. Jones, 3 Cal. 5th 583, 618–19
(2017); and People v. Becerrada, 2 Cal. 5th 1009, 1038 (2017).
16
other jurors may find B proven, but not A and C; others may find C proven,
but not A and B; and still others may find none of those facts proven and instead find some other fact to be aggravating.
As a result, a defendant such a petitioner may be sentenced to death in California even though the jury as a whole is not required to unanimously agree
beyond a reasonable doubt on any one factor to sentence him to death. By failing to do so, California’s capital sentencing scheme violates “the fundamental
meaning of the jury-trial guarantee of the Sixth Amendment ... that all facts
essential to the level of punishment that the defendant receives ... must be
found by the jury beyond a reasonable doubt.” Ring, 536 U.S. at 610, Scalia, J.
concurring.
III. The conflict in the lower courts in applying this Court’s precedent
to capital sentencing proceedings supports granting certiorari.
The lower courts are in conflict about how to apply this Court’s precedent in
capital sentencing proceedings.
Some courts have recognized the fact finding nature of the penalty weighing
exercise. The Delaware Supreme Court has found that “the weighing determination in Delaware’s statutory sentencing scheme is a factual finding necessary to impose a death sentence.” Rauf v. State, 145 A.3d 430, 485 (Del. 2016).
Therefore, to comport with federal constitutional standards as articulated by
Ring and Hurst, the jury must find “unanimously and beyond a reasonable
doubt” “‘any aggravating circumstance,’ statutory or non-statutory, that has
been alleged by the State for weighing in the selection phase of a capital sen-
17
tencing proceeding” and that “the aggravating circumstances found to exist
outweigh the mitigating circumstances found to exist[.]” Id. at 434–34, 484,
485.
The Colorado Supreme Court has also held that, unless the defendant enters
a valid plea or waives the right to a jury trial, Apprendi and Ring require a
jury “finding aggravating factors, finding mitigating factors, and weighing aggravating factors against mitigating factors” beyond a reasonable doubt. People v. Montour, 157 P.3d 489, 491–92, 495–96 (Colo. 2007); accord Woldt v.
People, 64 P.3d 256, 265–66 (Colo. 2003).
Similarly, Justice Sotomayor, the author of Hurst, has stated that, where
a capital sentencing scheme “require[s] finding that the aggravating factors
of a defendant's crime outweigh the mitigating factors … to impose the death
penalty[,] … this factual finding exposes the defendant to a greater punishment than he would otherwise receive: death, as opposed to life without parole. Under Apprendi and Ring, a finding that has such an effect must be made
by the jury” and beyond a reasonable doubt. Woodward v. Alabama, 571 U.S.
1045, 1052–53 (2013), Sotomayor, J., dissenting from denial of cert.
Other courts have construed Hurst as requiring that an aggravating circumstance must be unanimously found beyond a reasonable doubt but that
this standard does not apply to the question of whether aggravating circumstances outweigh mitigating circumstances because that is a question of “mercy” or a “moral judgement” rather than a factual question. State v. Wood, 580
18
S.W.3d 566, 584 (Mo. banc 2009) (“Hurst does not hold the determination of
whether mitigating factors outweigh aggravating factors or that death is an
appropriate sentence are factual elements that must be found by a jury.”); accord State v. Poole, 297 So. 3d 487, 503 (2023) (The death penalty selection
or weighing finding "`is mostly a question of mercy'" and "`is not a finding of
fact, but a moral judgment.'"); Nunnery v. State, 263 P.3d 235, 241 (Nev. 2011)
(“the weighing of aggravating and mitigating circumstances is not a fact-finding endeavor under Apprendi and Ring, but a “moral determination”); Ritchie
v. State, 809 N.E.2nd 258, 265-66 (Ind. 2004) (”whether the punishment [of
death] should or should not be imposed in a given case” is not a factual finding
under Apprendi and Ring); State v. Lotter, 301 Neb. 125, 143 (Neb. 2018) (rejecting claim that under Hurst, ”a jury must find beyond a reasonable doubt
that the aggravating circumstances outweigh the mitigating circumstances).
Several federal circuit courts have reached the same conclusion where the
federal government seeks to impose the death penalty. See, e.g., United States
v. Gabrion, 719 F.3d 511, 533 (6th Cir. 2013) (under Apprendi, the determination that the aggravating factors outweigh the mitigating factors is a “moral
judgement” and “not a finding of fact in support of a particular sentence”);
United States v. Barnett, 496 F.3d 1079, 1107 (10th Cir. 2007) (a jury's determination that aggravating factors outweigh mitigating factors is not a finding
of fact subject to Apprendi but a "highly subjective, largely moral judgment
regarding the punishment that a particular person deserves"); United States
19
v. Runyon, 707 F.3d 475, 516 (4th Cir. 2013) (Under Ring, the requirement of
proof beyond a reasonable doubt “has never extended … to juries' weighing of
aggravating and mitigating factors.”)
This conflict in the lower courts supports granting certiorari. The constitutional questions cannot be avoided, as the California Supreme Court and other
courts have done, by labelling the finding and weighing aggravating and mitigating factors as “moral” or “normative” rather than “factual.” See, e.g., People
v. McKinzie, 54 Cal. 4th 1302, 1366 (2012) (“Unlike the guilt determination,
the sentencing function is inherently moral and normative, not factual and,
hence, not susceptible to a burden-of-proof quantification.”) (internal citations
and quotations omitted).
As this Court has emphasized, where the law has “threatened [the defendant] with certain pains” for committing a crime, the relevant constitutional
inquiry is not the “label” put on a sentencing determination. Apprendi, 530
U.S. at 476, 494. If a State makes an increase in a defendant's authorized
punishment contingent on the finding of a fact, that fact -- no matter how
the State labels it -- must be found by a jury unanimously and beyond a reasonable doubt. Id. at 482–483; Ring, 536 U.S. at 602; Hurst, 577 U.S. at 98,
99. Therefore, certiorari should be granted to resolve whether a capital defendant’s Fifth, Sixth, Eighth, and Fourteenth Amendment rights to trial by jury
may be restricted by labelling factfinding in capital sentencing procedures as
normative.
20
IV. This California capital case is an appropriate vehicle for resolving
the conflict in the lower courts.
As explained above, the California Supreme Court has long applied its
flawed understanding of Apprendi, Ring, and Hurst in its review of petitioner’s
case and numerous other death penalty cases. See, e.g. People v. Rangel, 62
Cal. 4th 1192, 1235 (2016); People v. Beck, 8 Cal.5th 548, 670 (2019); People v.
Johnson, 8 Cal.5th 575, 593-594 (2019); People v. Capers, 7 Cal.5th 989, 1014
(2019); People v. Powell, 6 Cal.5th 136, 193, n. 36 (2018); People v. Jones, 3
Cal. 5th 583, 618-619 (2017); People v. Becerrada, 2 Cal.5th 1009, 1038 (2017),
and cases cited therein. The issue presented here is well defined and will not
benefit from further development in the California Supreme Court or multiple
other lower state and federal courts as discussed in Section III.
Moreover, as of April 21, 2025, California had 585 of the 2,067 prisoners
on death row in the United States, or approximately 28% of the country’s
total death row population.⁷ Therefore, California’s refusal to require a jury to
unanimously find beyond a reasonable doubt the facts necessary to impose the
death penalty affects a substantial portion of this country’s capital cases. Certiorari should be granted to resolve for the nation as a whole the scope of jury
trial rights in capital sentencing proceedings.
///
///
///
⁷
See https://www.naacpldf.org/our-thinking/death-row-usa/#reports (Spring 2025).
21
CONCLUSION
For foregoing reasons, the petition for a writ of certiorari should be granted
and the judgement of the California Supreme Court upholding petitioner’s
death sentence should be reversed.
Respectfully submitted,
Donald R. Tickle
Counsel of Record for Petitioner
22
APPENDIX TABLE OF CONTENTS
Appendix A: April 23, 2025, Order by the California Supreme Court Opinion
denying rehearing and modifying its attached February 3, 2025, slip Opinion in
People v. Mao Hin, Case No. S141519.
Appendix B: California Penal Code sections 187, 188, 190, 190.1, 190.2, 190.3, 190.4,
and 190.5.
Appendix C: California Jury Instructions –Criminal (“CALJIC”) Nos. 8.86, 8.87,
and 8.88 as given to the jury in the penalty phase of petitioner’s trial, San Joaquin
County Superior Court Case No. SF090168B.
23
Appendix A
April 23, 2025, Order by the California Supreme Court Opinion
denying rehearing and modifying its attached
February 3, 2025, slip Opinion in People v. Mao Hin, Case No. S141519.
24
Filed 4/23/25
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MAO HIN,
Defendant and Appellant.
S141519
San Joaquin County Superior Court
SF090168B
ORDER MODIFYING OPINION AND
DENYING PETITION FOR REHEARING
THE COURT:
The majority opinion in this matter, filed on February 3,
2025, and appearing at 17 Cal.5th 401, is modified as follows:
1. The fifth sentence of the third full paragraph on page
421 is modified to read:
Police recovered a shell casing from the middle of the
street in front of the carport.
2. The third sentence in the carryover paragraph on
pages 425 to 426 is modified to read:
25
A shell casing recovered from the scene matched the
nine-millimeter used in the American Legion Park and Bedlow
Drive shootings.
3. The fifth sentence of the first full paragraph on page
426 is modified to read:
Shell casings collected from the scene were fired by the
same Beretta used in the American Legion Park and Bedlow
Drive shootings.
4. The first sentence of the second full paragraph on
page 456 is modified to read:
The evidence was sufficient to establish that, following a
confrontation, Hin drove Kak and Chun 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.
This modification does not affect the judgment.
Defendant’s petition for rehearing is denied.
2
26
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.
27
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
1
28
PEOPLE v. HIN
Opinion of the Court by Liu, J.
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
2
29
PEOPLE v. HIN
Opinion of the Court by Liu, J.
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
3
30
PEOPLE v. HIN
Opinion of the Court by Liu, J.
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,
4
31
PEOPLE v. HIN
Opinion of the Court by Liu, J.
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.
5
32
PEOPLE v. HIN
Opinion of the Court by Liu, J.
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
6
33
PEOPLE v. HIN
Opinion of the Court by Liu, J.
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 ninemillimeter 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 .44caliber revolver, a .22-caliber firearm, and either a .357 or .387
34
PEOPLE v. HIN
Opinion of the Court by Liu, J.
caliber firearm. The expert testified that the bullet recovered
from the driver was “consistent” with test fires from the .44caliber 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
8
35
PEOPLE v. HIN
Opinion of the Court by Liu, J.
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
9
36
PEOPLE v. HIN
Opinion of the Court by Liu, J.
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 wellknown” 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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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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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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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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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 19hour 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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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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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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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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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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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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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 crossadmissible 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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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 gangrelated 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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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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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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PEOPLE v. HIN
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finding. Below we consider the jury’s gang-murder specialcircumstance 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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PEOPLE v. HIN
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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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PEOPLE v. HIN
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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 preSenate 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 specialcircumstance 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 felonymurder 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 preBanks/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).).”
(Scoggins).)
(In re Scoggins (2020) 9 Cal.5th 667, 677
The jury’s findings satisfy both the subjective and
objective elements and distinguish this case from the “gardenvariety 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 gangmurder 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
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