20 Cal.App.5th 561
Cal. Ct. App.2018Background
- In 2011, then-16-year-old Andrew Tran drove with gang members to confront a rival group; passenger Benjamin Nguyen fired into an SUV, killing Scottie Bui and wounding Roger James.
- Tran was arrested, admitted involvement (driving, facilitating), and was prosecuted under aiding-and-abetting and natural-and-probable-consequence theories.
- Charged with murder, attempted murder (of James), shooting at an occupied vehicle, and street terrorism, with gang and firearm enhancements; jury convicted of second-degree murder and related counts; sentence totaled 40 years to life.
- At trial the court instructed the jury about the "kill zone" (concurrent intent) theory of attempted murder, but the instruction was worded awkwardly and identified James (a surviving victim) as the primary target rather than the murder victim Bui.
- Tran appealed, arguing the kill zone instruction was inapt and confusing; he also sought a remand to develop a record regarding youthful-offender factors relevant to a section 3051 youth offender parole hearing 25 years into his sentence.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Tran) | Held |
|---|---|---|---|
| Whether the kill zone instruction was improper or prejudicial | Instruction was permissible and applicable; any wording issues were harmless | Instruction was confusing/inapt for facts and amounted to gibberish, requiring reversal of attempted murder conviction | Kill zone theory applied; despite inartful wording the instruction required intent to kill James and any error was patently harmless — attempted murder conviction affirmed |
| Whether remand is required to allow development of a record about youthful characteristics for future parole (Franklin hearing) | Probation report and sentencing record suffice; no remand needed | Sentencing occurred before Franklin; Tran lacked opportunity to present evidence relevant to future youth-parole suitability and should get a remand to create that record | Remand ordered for limited Franklin-type hearing to allow parties to put on relevant evidence for the eventual youth offender parole board; judgment otherwise affirmed |
Key Cases Cited
- People v. Bland, 28 Cal.4th 313 (establishes and applies "kill zone"/concurrent intent theory for attempted murder in gang-based multiple-shooting facts)
- Graham v. Florida, 560 U.S. 48 (prohibits juvenile life without parole for nonhomicide offenders)
- Miller v. Alabama, 567 U.S. 460 (prohibits mandatory LWOP for juvenile homicide offenders; stresses youth-related mitigating differences)
- People v. Franklin, 63 Cal.4th 261 (interprets §3051; requires opportunity at sentencing to develop record of youth-related factors for future parole consideration)
- People v. Caballero, 55 Cal.4th 262 (applies Graham principles in California; addresses de facto LWOP for juveniles)
- People v. Stone, 46 Cal.4th 131 (distinguishes facts where kill zone theory is inapt — single-bullet crowd shooting)
- Ford v. State, 625 A.2d 984 (Md. Ct. App.) (formulation/examples of "kill zone"/concurrent intent used by other courts)