Supreme Court of California Justia
Docket No. S094597
People v. Lee

Filed 8/14/03

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S094597
v.
Ct.App. 5 No. F028940
PHIA LEE et al.,
County of Fresno
Super. Ct. No. 571741-8
Defendants and Appellants.

Subdivision (a) of section 664 of the Penal Code (section 664(a))1 provides
that, as a general matter, a person guilty of attempted murder must be punished by
imprisonment for five, seven, or nine years. It goes on to provide, however, that, “if
the [murder] attempted is willful, deliberate, and premeditated . . . , the person
guilty of that attempt shall be punished by imprisonment . . . for life . . . . The
additional term provided . . . for attempted willful, deliberate, and premeditated
murder shall not be imposed unless the fact that the attempted murder was willful,
deliberate, and premeditated is charged in the accusatory pleading and admitted or
found to be true by the trier of fact.”
In
People v. Bright (1996) 12 Cal.4th 652, 655–657, we considered the
proper characterization of section 664(a), and held that the statute does not create a
greater degree of attempted murder, but rather constitutes a penalty provision

1
All unspecified section references are to the Penal Code.
1


increasing the punishment for attempted murder beyond the maximum otherwise
prescribed, when the murder attempted was willful, deliberate, and premeditated.
We granted review in the present case limited to two issues entirely distinct
from the question in Bright. The first issue involves the proper interpretation of
section 664(a): Does section 664(a) require that an attempted murderer personally
acted willfully and with deliberation and premeditation if he or she is guilty as an
aider and abettor? The second issue follows from the first: If section 664(a) in fact
so requires, what is the standard of prejudice for a trial court’s failure to instruct the
jury to determine whether such an attempted murderer so acted?
As we shall explain, we conclude that section 664(a) properly must be
interpreted to require only that the murder attempted was willful, deliberate, and
premeditated, but not to require that an attempted murderer personally acted
willfully and with deliberation and premeditation, even if he or she is guilty as an
aider and abettor.
Because we conclude section 664(a), properly interpreted, does not require
personal willfulness, deliberation, and premeditation on the part of an attempted
murderer, we do not address the standard of prejudice applicable to the trial court’s
omission of an instruction to the contrary.
In light of the foregoing, we conclude that the judgment of the Court of
Appeal should be affirmed. Although the appellate court held that section 664(a)
requires the personal willfulness, deliberation, and premeditation of the attempted
murderer who is guilty as an aider and abettor, and further held that the trial court
erred by failing to instruct the jury to make the requisite determination, it went on to
hold that the error was harmless under either the reasonable-probability test of
People v. Watson (1956) 46 Cal.2d 818 (Watson) or the harmless-beyond-a-
reasonable-doubt test of Chapman v. California (1967) 386 U.S. 18 (Chapman).
The appellate court’s interpretation of section 664(a) was erroneous, but because it
2
found harmless the trial court’s instructional omission, it nevertheless reached the
correct result in upholding defendants’ convictions and sentences. Accordingly, we
shall affirm the judgment of the Court of Appeal.
I
This case arises from violent confrontations in the City of Fresno in 1995
between rival Hmong gangs, the Men or Menace of Destruction (MOD) and the
Unstoppable or Unseen Criminals (USC).
Defendants Phia Lee and Johnson Xiong, who were MOD members or
associates and were 14 and 15 years of age, respectively, were charged with two
counts of murder and seven counts of attempted murder. It was alleged that the
murders were committed under the multiple-murder special circumstance. It also
was alleged that each attempted murder was willful, deliberate, and premeditated
for purposes of section 664(a).2 Finally, it was alleged as to each murder that each
defendant personally used a firearm, and it was alleged as to each attempted murder
that each defendant personally used a firearm and personally inflicted great bodily
injury.
Trial was by jury. The central contested issue was identity, with the People
asserting, and defendants denying, that defendants took part in the charged murders
and attempted murders. Viewed in the light most favorable to the ensuing
judgment, the evidence discloses the following circumstances:
On the evening of April 29, 1995, three persons approached 989 Burns Street
in Fresno, at least two of them arriving at the scene armed. They encountered Kou

2
At the time of the crimes in question, section 664(a) differed somewhat from
the statute as presently worded, but not substantially. See footnote 3 on page 9,
post.
3


H., who was 15 years of age, Cheng H. and Thanaka T., who were 14, and Sa H.,
who was 13. Kou, Cheng, and Sa were brothers; Thanaka was a friend. The oldest
and most muscular of the three persons in question, who never was identified and
was referred to only as the “big guy,” asked Thanaka whether he had any
marijuana. Thanaka said he did not. Suddenly, the big guy pulled out a gun and
started firing. One or both of his two companions did the same. In fleeing, the
three persons left Kou, Cheng, Sa, and Thanaka wounded, Cheng and Sa most
seriously — the former paralyzed from the waist down, the latter with injuries that
resulted in the loss of a kidney and other internal organs. Earlier that same day,
defendants had attempted to challenge Kou, Cheng, Sa, and Thanaka, apparently
because Kou, Cheng, and Sa had a cousin who may have been associated with
USC. The evidence was relatively clear that defendant Xiong was one of the
perpetrators of the shootings, but was much less clear as to defendant Lee.
Less than two months later, on the evening of June 21, 1995, two persons
approached an apartment complex located at 232 North Valeria Street in Fresno,
both of them armed. One of the residents of the complex was Thong Vang, a
founder of USC. The complex itself was marked as USC “turf.” Without warning,
each of the two persons in question trained his gun at various individuals, opened
fire, and then fled, with one shouting “MOD, fool” in order to claim responsibility.
In their barrage, the pair hit 20-year-old Quang Minh Ha, 17-year-old Doua V., and
5- or 6-year-old Linda V., each of whom survived the attack. The pair also hit 14-
year-old Blong Xiong and 7-year-old Sandy Vang, who died of their wounds.
Extensive evidence in the form of admissions and eyewitness testimony identified
defendants as the perpetrators.
On motion of the People, the trial court dismissed the allegations of personal
infliction of great bodily injury related to the charges of attempted murder, because
4
the evidence was insufficient to prove which of the defendants inflicted injury on
which of the victims.
The trial court then instructed the jury on, among other things, murder of
both the first and the second degree; the multiple-murder special circumstance;
attempted murder; willfulness, deliberation, and premeditation as to attempted
murder for purposes of section 664(a); personal use of a firearm; and the liability of
direct perpetrators and aiders and abettors as principals in a crime. The instructions
included the following: “In order to prove the crime of attempted murder each of
the following elements must be proved[:] [¶] 1. A direct but ineffectual act was
done by one person towards killing another human being; and [¶] 2. The person
committing such act harbored . . . a specific intent to kill . . . .” “If you find a
defendant guilty of attempt to commit murder, you must further determine whether
the attempt to commit murder was willful, deliberate, and premeditated. [¶]
‘Willful’ means intentional. ‘Deliberate’ means formed or arrived at or determined
upon as a result of careful thought and weighing of considerations for and against
the proposed course of action. ‘Premeditated’ means considered beforehand.”
“Persons who are involved in committing a crime are referred to as principals in
that crime. Each principal, regardless of the extent or manner of participation is
equally guilty. Principals include: [¶] 1. Those who directly and actively commit
the act constituting the crime, or [¶] 2. Those who aid and abet the commission of
the crime.” “A person aids and abets the commission of a crime when he or she, [¶]
1. With knowledge of the unlawful purpose of the perpetrator and [¶] 2. With the
intent or purpose of committing or encouraging or facilitating the commission of
the crime, . . . [¶] 3. By act or advice aids, promotes, encourages or instigates the
commission of the crime.”
The jury found defendant Lee guilty of the murder of Blong Xiong and
Sandy Vang in the first degree, with a true finding as to the multiple-murder special
5
circumstance, with personal use of a firearm; it also found him guilty of the
attempted murder of Quang Minh Ha, Doua V., and Linda V., with personal use of
a firearm, and found that each attempted murder was willful, deliberate, and
premeditated for purposes of section 664(a); and it found defendant Lee not guilty
of the attempted murder of Kou H., Cheng H., Sa H., and Thanaka T.
The jury found defendant Xiong guilty of both of the murders in the first
degree, with a true finding as to the multiple-murder special circumstance, with
personal use of a firearm; it also found him guilty of all of the attempted murders,
with personal use of a firearm, and found that each attempted murder was willful,
deliberate, and premeditated for purposes of section 664(a).
The trial court rendered judgment against defendants accordingly (the death
penalty was not available on the findings of special circumstances because
defendants were under 18 years of age (see § 190.5, subd. (a))), including
imposition of life imprisonment for each attempted murder found to have been
willful, deliberate, and premeditated for purposes of section 664(a).
The Court of Appeal affirmed the judgment, as modified to reduce
defendants’ convictions for the attempted murder of Linda V. (because of
insufficient evidence) to assault with a deadly weapon. The appellate court first
concluded that section 664(a) requires personal willfulness, deliberation, and
premeditation on the part of an attempted murderer who is guilty as an aider and
abettor. On this point, the appellate court declined to follow the contrary decision
in People v. Laster (1997) 52 Cal.App.4th 1450. As a result, the appellate court
concluded that the trial court erred by failing to instruct the jury to determine
personal willfulness, deliberation, and premeditation in the case of an aider and
abettor. The appellate court, however, went on to conclude that the trial court’s
error was subject to harmless error analysis, evidently as a violation only of
California law and not the United States Constitution, and that the error in fact was
6
harmless under the Watson reasonable-probability test  and harmless even under
the Chapman harmless-beyond-a-reasonable-doubt test.
Defendants filed separate petitions for review. We granted review and
limited the issues to (1) whether section 664(a) requires personal willfulness,
deliberation, and premeditation on the part of an attempted murderer who is guilty
as an aider and abettor, and (2) if so, what is the standard of prejudice applicable to
a trial court’s failure to instruct the jury to make the requisite determination.
II
We begin with the issue whether section 664(a) requires that in order to be
punished with life imprisonment for attempted murder as an aider and abettor, an
individual must personally act with willfulness, deliberation, and premeditation.
In
People v. Bright, supra, 12 Cal.4th 652, the question that we addressed
was whether, for purposes of the double jeopardy clauses of the Fifth Amendment
of the United States Constitution and section 15 of article I of the California
Constitution, section 664(a), by providing for life imprisonment as the punishment
for an attempted murderer when the murder attempted was willful, deliberate, and
premeditated, creates a “greater degree of attempted murder” in the form of “ ‘first
degree attempted murder’ ” or, instead, constitutes a “penalty provision” increasing
punishment for attempted murder beyond the maximum otherwise prescribed.
(People v. Bright, supra, 12 Cal.4th at p. 656, italics omitted.)
After carefully analyzing the language and purpose of section 664(a), we
concluded in Bright that section 664(a) in fact constitutes a penalty provision
increasing the punishment for attempted murder beyond the maximum otherwise
prescribed, and does not create a greater degree of attempted murder. We further
concluded that a jury verdict finding the defendant guilty of attempted murder,
without any finding on an allegation that the murder attempted was willful,
7
deliberate, and premeditated, did not amount to an acquittal of a so-called, but non-
existent, greater degree of attempted murder, and therefore concluded that the
double jeopardy clauses of the federal and state Constitutions did not bar retrial on
the allegation in question. (People v. Bright, supra, 12 Cal.4th at pp. 656–657.)
The issue before us here is entirely distinct from that in Bright. Whereas in
Bright we considered the proper characterization of section 664(a) as creating a
greater degree of attempted murder or instead constituting a penalty provision, in
the present case we consider the proper interpretation of section 664(a) as to the
attempted murderers to whom it applies. In this regard, defendants contend that
section 664(a) requires that an attempted murderer personally have acted with
willfulness, deliberation, and premeditation if he or she is guilty as an aider and
abettor, and that the trial court erred by failing to instruct the jury to make the
requisite determination. By contrast, the People assert that section 664(a) requires
only that the murder attempted was willful, deliberate, and premeditated, but not
that an attempted murderer personally have acted with willfulness, deliberation, and
premeditation, even if he or she is guilty as an aider and abettor. The People thus
contend that the trial court acted properly by instructing the jury as it did. As we
shall explain, we agree with the People’s interpretation of section 664(a).
Section 664(a) provides in its entirety: “If the crime attempted is punishable
by imprisonment in the state prison, the person guilty of the attempt shall be
punished by imprisonment in the state prison for one-half the term of imprisonment
prescribed upon a conviction of the offense attempted. However, if the crime
attempted is willful, deliberate, and premeditated murder, as defined in
Section 189, the person guilty of that attempt shall be punished by imprisonment in
the state prison for life with the possibility of parole. If the crime attempted is any
other one in which the maximum sentence is life imprisonment or death, the person
guilty of the attempt shall be punished by imprisonment in the state prison for five,
8
seven, or nine years. The additional term provided in this section for attempted
willful, deliberate, and premeditated murder shall not be imposed unless the fact
that the attempted murder was willful, deliberate, and premeditated is charged in
the accusatory pleading and admitted or found to be true by the trier of fact.
(Italics added.)3
To begin with, as a substantive matter section 664(a) requires only that the
murder attempted was willful, deliberate, and premeditated for an attempted
murderer to be punished with life imprisonment. To quote the language of
section 664(a), “if the crime attempted is willful, deliberate, and premeditated
murder . . . , the person guilty of that attempt shall be punished by imprisonment . . .
for life . . . .” Thus, section 664(a) states only that the murder attempted must have
been willful, deliberate, and premeditated, not that the attempted murderer
personally must have acted willfully and with deliberation and premeditation. Put
otherwise, section 664(a) states that if the murder attempted was willful, deliberate,
and premeditated, any “person guilty of that attempt” — not confined to persons
who acted willfully and with deliberation and premeditation — “shall be punished

3
At the time of the crimes charged against defendants, the wording of
section 664(a) was substantially similar to what it is today, providing in pertinent
part as follows: “[I]f the crime attempted is willful, deliberate, and premeditated
murder, as defined in Section 189, the person guilty of that attempt shall be
punishable by imprisonment in the state prison for life with the possibility of parole;
provided, further, that if the crime attempted is any other one in which the
maximum sentence is life imprisonment or death the person guilty of the attempt
shall be punishable by imprisonment in the state prison for a term of five, seven, or
nine years. The additional term provided in this section for attempted willful,
deliberate, and premeditated murder shall not be imposed unless the fact that the
attempted murder was willful, deliberate, and premeditated is charged in the
accusatory pleading and admitted or found to be true by the trier of fact.”
(Stats. 1994, ch. 793, § 1, p. 3920.)
9


by imprisonment . . . for life.” Of course, a person may be guilty of attempted
murder or indeed of any crime, on varying bases and with varying mental states,
depending, for example, on whether he or she was a direct perpetrator or an aider
and abettor or even a conspirator.
Referring three times broadly and generally to “the person guilty” of
attempted murder, section 664(a) not once distinguishes between an attempted
murderer who is guilty as a direct perpetrator and an attempted murderer who is
guilty as an aider and abettor, and not once requires of an attempted murderer
personal willfulness, deliberation, and premeditation. Had the Legislature intended
to draw a distinction between direct perpetrators and aiders and abettors, it certainly
could have done so expressly. When the Legislature amended what is now section
664(a) into the form of a penalty provision (see Stats. 1986, ch. 519, § 2, p. 1859), it
had before it a model distinguishing between direct perpetrators and aider and
abettors — section 190.2. (See People v. Bright, supra, 12 Cal.4th at p. 669, fn. 12;
id. at pp. 678–680 (dis. opn. of Mosk, J.).) Section 190.2, which increased the
punishment for murder from life imprisonment to either death or life imprisonment
without possibility of parole when the murder was committed under one or more
specified special circumstances, imposed a blanket requirement of intent to kill for
aiders and abettors, but not for direct perpetrators. (Prop. 7, as approved by voters,
Gen. Elec. (Nov. 7, 1978), § 6, adding § 190.2.) If the Legislature had intended to
distinguish between direct perpetrators and aiders and abettors in what is now
section 664(a), it is reasonable to presume that, whether by following the model of
section 190.2 or otherwise, it would have done so explicitly. Furthermore, had the
Legislature intended to require personal willfulness, deliberation, and premeditation
of an attempted murderer, here too it could have done so expressly — as it did when
it added subdivision (e) to section 664 (section 664(e)): “If attempted murder is
committed upon a peace officer or firefighter . . . , and the person who commits the
10
offense knows or reasonably should know that the victim is such a peace officer or
firefighter engaged in the performance of his or her duties, the person guilty of the
attempt shall be punished by imprisonment . . . for life . . . .” In section 664(e), the
Legislature required personal actual or constructive knowledge. In section 664(a),
by contrast, it did not require personal willfulness, deliberation, and premeditation.
Next, as a procedural matter, section 664(a) requires only that the fact that
the murder attempted was willful, deliberate, and premeditated must be alleged, and
either admitted or found true, for an attempted murderer to be punished with life
imprisonment. Again, to quote the language of section 664(a), life imprisonment
“shall not be imposed” for attempted murder “unless the fact that the attempted
murder was willful, deliberate, and premeditated is charged in the accusatory
pleading and admitted or found to be true by the trier of fact.” Here too,
section 664(a) does not state that the accusatory pleading must charge that the
attempted murderer personally acted willfully and with deliberation and
premeditation, but only that the pleading must charge that the murder attempted was
willful, deliberate, and premeditated. In this provision as well, section 664(a)
makes no distinction between an attempted murderer who is guilty as a direct
perpetrator and an attempted murderer who is guilty as an aider and abettor, nor
does it draw any distinction between an attempted murderer who personally acted
with willfulness, deliberation, and premeditation and an attempted murderer who
did not so act.
In opposition to the foregoing interpretation of section 664(a), defendants
argue that the Legislature did not intend to punish with life imprisonment an
attempted murderer who is guilty as an aider and abettor, but who did not
personally act with willfulness, deliberation, and premeditation, because assertedly
such an attempted murderer is insufficiently blameworthy to merit such a severe
punishment. To imprison this type of attempted murderer for life, they contend,
11
would run counter to the purpose of section 664(a), which is “to impose [increased]
punishment for attempted murder proportionate to the culpability of the crime,
when the murder that was attempted was willful, deliberate, and premeditated”
(People v. Bright, supra, 12 Cal.4th at p. 669, fn. 12). We find this argument
unpersuasive because, as will appear, it ignores the very substantial
blameworthiness of even this sort of attempted murderer.
Attempted murder requires the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing. (E.g., 1 Witkin
& Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 53, pp. 262–263; see, e.g.,
People v. Swain (1996) 12 Cal.4th 593, 604–605.) To be guilty of a crime as an
aider and abettor, a person must “aid[] the [direct] perpetrator by acts or
encourage[] him [or her] by words or gestures.” (People v. Villa (1957) 156
Cal.App.2d 128, 134; accord, People v. Gonzales (1970) 4 Cal.App.3d 593, 600;
see generally 1 Witkin & Epstein, Cal. Criminal Law, supra, Introduction to
Crimes, § 78, p. 124.) In addition, except under the natural-and-probable-
consequences doctrine (see, e.g., People v. McCoy (2001) 25 Cal.4th 1111, 1118;
see generally People v. Prettyman (1996) 14 Cal.4th 248, 260–263), which is not
implicated on the facts presented here, the person must give such aid or
encouragement “with knowledge of the criminal purpose of the [direct] perpetrator
and with an intent or purpose either of committing, or of encouraging or facilitating
commission of,” the crime in question. (People v. Beeman (1984) 35 Cal.3d 547,
560; accord, e.g., People v. Prettyman, supra, 14 Cal.4th at p. 259; People v. Croy
(1985) 41 Cal.3d 1, 11–12.) When the crime at issue requires a specific intent, in
order to be guilty as an aider and abettor the person “must share the specific intent
of the [direct] perpetrator,” that is to say, the person must “know[] the full extent of
the [direct] perpetrator’s criminal purpose and [must] give[] aid or encouragement
with the intent or purpose of facilitating the [direct] perpetrator’s commission of the
12
crime.” (People v. Beeman, supra, 35 Cal.3d at p. 560.) Thus, to be guilty of
attempted murder as an aider and abettor, a person must give aid or encouragement
with knowledge of the direct perpetrator’s intent to kill and with the purpose of
facilitating the direct perpetrator’s accomplishment of the intended killing — which
means that the person guilty of attempted murder as an aider and abettor must
intend to kill. (See People v. McCoy, supra, 25 Cal.4th at p. 1118.)
In light of the foregoing, we conclude that the Legislature reasonably could
have determined that an attempted murderer who is guilty as an aider and abettor,
but who did not personally act with willfulness, deliberation, and premeditation, is
sufficiently blameworthy to be punished with life imprisonment. Where, as in the
present case, the natural-and-probable-consequences doctrine does not apply, such
an attempted murderer necessarily acts willfully, that is with intent to kill. In
addition, he or she also necessarily acts with a mental state at least approaching
deliberation and premeditation — concepts that entail “ ‘ “careful thought and
weighing of considerations” ’ ” and “ ‘ “preexisting reflection” ’ ” (People v.
Anderson (1968) 70 Cal.2d 15, 26), as opposed to “mere unconsidered or rash
impulse hastily executed” (People v. Thomas (1945) 25 Cal.2d 880, 901) —
because he or she necessarily acts with knowledge of the direct perpetrator’s intent
to kill and with a purpose of facilitating the direct perpetrator’s accomplishment of
the intended killing. Punishing such an attempted murderer with life imprisonment
would not run counter to section 664(a)’s purpose of making the punishment
proportionate to the crime. Of course, where the natural-and-probable-
consequences doctrine does apply, an attempted murderer who is guilty as an aider
and abettor may be less blameworthy. In light of such a possibility, it would not
have been irrational for the Legislature to limit section 664(a) only to those
attempted murderers who personally acted willfully and with deliberation and
premeditation. But the Legislature has declined to do so.
13

Defendants next rely upon our decisions in People v. Walker (1976) 18
Cal.3d 232, People v. Cole (1982) 31 Cal.3d 568, and People v. Piper (1986) 42
Cal.3d 471. Their reliance, however, is misplaced, because none of those decisions
proves apposite.
In Walker, we considered former section 12022.5, which constituted a
penalty provision establishing a sentence enhancement for “[a]ny person who uses a
firearm in the commission or attempted commission of” any one of several
specified felonies (Stats. 1969, ch. 954, § 1, p. 1900). We concluded that former
section 12022.5 required, by implication, that a person who uses a firearm had to
use the firearm personally. (People v. Walker, supra, 18 Cal.3d at pp. 238–242.)
We dismissed as inapplicable the law of criminal liability for direct perpetrators and
aiders and abettors, on which the People relied in arguing to the contrary. (Id. at
p. 242.) We reasoned that the underlying principles of the law of criminal liability
bore on whether a person might be guilty of a crime, and not on how a person guilty
of a crime might be punished. (Ibid.) Hence, we declined to employ such
principles to remove from former section 12022.5 its requirement of personal use of
a firearm. (People v. Walker, supra, 18 Cal.3d at p. 242.)
Next, in Cole we considered section 12022.7, which constitutes a penalty
provision establishing a sentence enhancement for “[a]ny person who, with the
intent to inflict such injury, personally inflicts great bodily injury on any person
other than an accomplice in the commission or attempted commission of a felony”
(Stats. 1979, ch. 145, § 17, p. 341). We concluded that for the section 12022.7
enhancement to apply, the statute expressly requires that a person who personally
inflicts great bodily injury had to inflict such injury personally. (People v. Cole,
supra, 31 Cal.3d at pp. 572–579.) In the course of our discussion, we suggested
that, had the Legislature intended section 12022.7 not to require personal infliction
of great bodily injury, it would have included language so indicating, as by
14
speaking in terms of “[a]ny person . . . who inflicts great bodily injury, whether or
not he or she inflicts such injury personally.” (See People v. Cole, supra, 31 Cal.3d
at p. 576.) Following our reasoning in Walker, we declined to employ the law of
criminal liability to remove from section 12022.7 its requirement of personal
infliction of great bodily injury. (People v. Cole, supra, 31 Cal.3d at pp. 575–576.)
Lastly, in Piper we considered section 1192.7, subdivision (c)
(section 1192.7(c)), which, in conjunction with section 667, constituted a penalty
provision establishing a sentence enhancement for any defendant who commits any
one of several specified felonies, including “any felony in which the defendant
use[d] a firearm” (Prop. 8, as approved by voters, Primary Elec. (June 8, 1982) § 7,
adding § 1192.7(c)(8)) and “any felony in which the defendant personally used a
dangerous or deadly weapon” (Prop. 8, as approved by voters, Primary Elec.
(June 8, 1982) § 7, adding § 1192.7(c)(23)). We concluded that section 1192.7(c)
requires, expressly, that a defendant who commits a felony in which he or she
personally used a dangerous or deadly weapon had to have used such a weapon
personally. (People v. Piper, supra, 42 Cal.3d at pp. 475–476.) We likewise
concluded that section 1192.7(c) requires, by implication, that a defendant who
commits a felony in which the defendant used a firearm had to have used the
firearm personally. (People v. Piper, supra, 42 Cal.3d at pp. 476–478.) In the
course of our discussion, we suggested that, had the Legislature intended
section 1192.7(c) not to require personal use of a firearm, it would have included
language so indicating, as by speaking in terms of “any felony in which the
defendant used a firearm, whether or not he or she used a firearm personally,” or at
least in terms of “any felony in which a firearm was used.” (See People v. Piper,
supra, 42 Cal.3d at pp. 476–477.) Following our reasoning in Walker and Cole, we
declined to employ the law of criminal liability to remove from section 1192.7(c) its
requirement of personal use of a firearm. (People v. Piper, supra, 42 Cal.3d at pp.
15
476–477.)
Here, by contrast, section 664(a) does not require that an attempted murderer
personally act with willfulness, deliberation, and premeditation. It requires only
that the attempted murder itself was willful, deliberate, and premeditated. Contrary
to the provisions that we considered in Walker, Cole, and Piper, which required
certain personal conduct on the part of a person committing a crime, that is the
person’s use of a firearm, infliction of great bodily injury, or use of a dangerous or
deadly weapon, section 664(a) requires only a certain quality characterizing the
crime itself, that is that the attempted murder was willful, deliberate, and
premeditated. In Piper, we implied that if the Legislature had included language in
section 1192.7(c) referring to “any felony in which a firearm was used,” instead of
“any felony in which the defendant use[d] a firearm,” it would have revealed an
intent not to require personal use. Here, in our view, the Legislature’s inclusion in
section 664(a) of language referring to the murder attempted as willful, deliberate,
and premeditated, instead of to the attempted murderer as personally acting with
willfulness, deliberation and premeditation, reveals an intent not to require personal
willfulness, deliberation, and premeditation.
Just as we refused in Walker, Cole, and Piper, to remove, at the People’s
behest, personal-conduct requirements imposed by the statutory provisions
considered in those cases, here we similarly decline defendants’ invitation to insert
a personal-mental-state requirement not imposed by section 664(a).
Defendants finally invoke two canons of statutory construction — the rule of
lenity and the rule of avoidance of grave and doubtful constitutional questions.
Neither canon assists their position.
The rule of lenity is inapplicable unless the statute in question is ambiguous,
meaning susceptible of two reasonable meanings that “ ‘stand in relative equipoise
. . . .’ ” (People v. Avery (2002) 27 Cal.4th 49, 58, quoting People v. Jones (1988)
16
46 Cal.3d 585, 599.) A reading of section 664(a) reflects the absence of any
requirement of personal willfulness, deliberation, and premeditation on the part of
an attempted murderer, inasmuch as section 664(a)’s language is passive and
imposes a requirement only as to the attempted murder — that it be willful,
deliberate, and premeditated — and nothing as to the attempted murderer. In light
of that language, it is difficult to discern the presence of any requirement of
personal willfulness, deliberation, and premeditation on the part of an attempted
murderer. In any event, a reading requiring personal willfulness, deliberation, and
premeditation  even if reasonable  does not stand in relative equipoise with a
reading not imposing such a requirement.
Similarly, the rule of avoidance of grave and doubtful constitutional
questions is inapplicable unless issues of constitutional magnitude arise. (See, e.g.,
People v. Anderson (1987) 43 Cal.3d 1104, 1146.) No such issues are present here.
Although defendants again argue that an attempted murderer who is guilty as an
aider and abettor, but who did not personally act with willfulness, deliberation, and
premeditation, is insufficiently blameworthy to be punished with life imprisonment,
their argument, as the preceding discussion demonstrates, ignores the very
substantial blameworthiness of even this sort of attempted murderer — necessarily
so in the general case, and possibly so even under the natural-and-probable-
consequences doctrine. More fundamentally, defendants’ argument seems
predicated on an assumption that punishment must be finely calibrated to a
criminal’s mental state. Such an assumption is unsound. Punishment takes account
not only of the criminal’s mental state, but also of his or her conduct, the
consequences of such conduct, and the surrounding circumstances. (Cf., e.g.,
§§ 487, subd. (a), 488, 489, subd. (b), 490 [providing that imprisonment for theft
may turn solely on the value of the property taken, without regard to the defendant’s
17
mental state].) Such circumstances may include the fact that the murder attempted
was willful, deliberate, and premeditated.
In sum, we conclude that section 664(a) properly must be interpreted to
require only that the murder attempted was willful, deliberate, and premeditated, but
not to require that an attempted murderer personally acted with willfulness,
deliberation, and premeditation, even if he or she is guilty as an aider and abettor.
We therefore conclude that the trial court did not err by failing to instruct the
jury to determine personal willfulness, deliberation, and premeditation in the case of
an aider and abettor.
Finally, because we conclude section 664(a), properly interpreted, does not
require personal willfulness, deliberation, and premeditation on the part of an
attempted murderer, we do not address the standard of prejudice applicable to the
trial court’s omission of an instruction to the contrary.
III
We now turn to the decision of the Court of Appeal in this case. As noted,
the appellate court held that section 664(a) requires that an attempted murderer
personally have acted with willfulness, deliberation, and premeditation if he or she
is guilty as an aider and abettor. The appellate court went on to conclude that the
trial court erred by failing to instruct the jury to determine personal willfulness,
deliberation, and premeditation in the situation of an aider and abettor, but further
concluded that the error was harmless.
The Court of Appeal erred by interpreting section 664(a) as it did. As we
have explained, section 664(a) properly must be interpreted to require only that the
murder attempted was willful, deliberate, and premeditated, but not to require that
an attempted murderer personally have acted with willfulness, deliberation, and
premeditation, even if he or she is guilty as an aider and abettor. Referring to
18
language in section 664(a) to the effect that if the murder attempted is willful,
deliberate, and premeditated, “the person guilty of that attempt shall be punished by
imprisonment . . . for life” (italics added), the appellate court asserted that “the use
of the phrase ‘the person’ indicates” a requirement of personal willfulness,
deliberation, and premeditation. We disagree. Although the phrase “the person”
indeed refers to the attempted murderer, it does not state or imply that the attempted
murderer personally must have acted with willfulness, deliberation, and
premeditation. As noted, a person may be guilty of attempted murder, and indeed
of any crime, on varying bases and with varying mental states. Furthermore, we
believe that in declining to follow People v. Laster, supra, 52 Cal.App.4th 1450, the
appellate court misread certain language in that decision (see People v. Laster,
supra, 52 Cal.App.4th at p. 1473) as mischaracterizing section 664(a) so as to create
a greater degree of attempted murder rather than to set forth a penalty provision,
contrary to Bright’s holding that section 664(a) “does not create a greater degree of
attempted murder but, rather, constitutes a penalty provision” (People v. Bright,
supra, 12 Cal.4th at p. 656, italics added). Laster in fact accurately quotes the
language of our opinion in Bright. (People v. Laster, supra, 52 Cal.App.4th at
p. 1470, quoting People v. Bright, supra, 12 Cal.4th at p. 656.) In context, the
language in Laster that was misread by the Court of Appeal correctly imparts that
section 664(a) requires only that the murder attempted was willful, deliberate, and
premeditated, but not that an attempted murderer personally have acted with
willfulness, deliberation, and premeditation even if he or she is guilty as an aider
and abettor.
Notwithstanding the Court of Appeal’s error in interpreting section 664(a),
and in finding that the trial court erred by failing to instruct the jury in accordance
with that interpretation, the appellate court nonetheless affirmed the trial court’s
judgment because it concluded that the instructional omission was harmless.
19
Having concluded that the trial court did not err, we agree with the appellate court
that the trial court’s judgment must be affirmed.
IV
For the reasons stated above, the judgment of the Court of Appeal is
affirmed.
GEORGE, C. J.
WE CONCUR:

BAXTER, J.
CHIN, J.
BROWN, J.
MORENO, J.

20





CONCURRING AND DISSENTING OPINION BY KENNARD, J.

An attempt to commit a crime that would be punished by life imprisonment
is punishable by a term of five, seven, or nine years in prison. (Pen. Code, § 664,
subd. (a), hereafter section 664(a).)1 In 1986, the Legislature amended section
664(a) to require life imprisonment for an attempted willful, deliberate, and
premeditated murder. Does this amendment apply only to a defendant who had
personally engaged in a willful, deliberate, and premeditated attempt to kill, or does
it also apply to an accomplice of someone who has attempted such a crime, even if
the accomplice does not act willfully, deliberately, and with premeditation? The
majority holds that the provision does apply to the accomplice. I disagree. Unlike
the majority, I conclude that the trial court in this case misinstructed the jury on the
elements of section 664(a). But because the error was harmless, I join the majority
in upholding defendants’ convictions.
I
Teenage defendants Phia Lee and Johnson Xiong (14 and 15 years old,
respectively) were members of a Hmong gang in Fresno. In April 1995, they had a
confrontation with three brothers (Kou H., Cheng H., and Sa H.) and Thanaka T.,

1
All further statutory citations are to the Penal Code.
1


because a cousin of the brothers might have been in a rival gang. Later that day,
three people, identified as defendants and an older man, approached T. and the H.
brothers at a house on Burns Street. The older man and defendant Xiong pulled out
guns and started shooting, wounding all four of them. In June 1995, defendants Lee
and Xiong went to an apartment complex in the rival gang’s territory. They both
opened fire, killing two persons (ages seven and 14), and wounding three others
(ages five, 17, and 20). As the two shooters fled, one of them shouted gang slogans.
Both defendants were charged with murder of the two persons fatally shot at
the apartment complex and with attempted murder of the four youths wounded on
Burns Street and the three people wounded at the apartment complex. The
prosecution alleged that all the attempted murders were willful, deliberate, and
premeditated. The defense relied on a theory of mistaken identity.
The trial court instructed the jury that if it concluded either that defendants
personally engaged in a premeditated attempt to kill the victims or that they aided
and abetted someone who did so, it should find true the allegations that defendants
were guilty of attempted premeditated murder.2 The jury convicted Xiong on all
counts; it acquitted Lee of the attempted murders on Burns Street but convicted him
of the crimes at the apartment complex. The jury found that all the attempted
murders were premeditated.
On appeal, defendants faulted the trial court for not telling the jury it could
find the attempted premeditated murder allegations true as to a particular defendant
only if that defendant personally acted with premeditation. The Court of Appeal
agreed, but it found the error harmless. This court granted review.

2
For convenience, I use the term “attempted premeditated murder” to describe
attempted willful, deliberate, and premeditated murder.
2


II
Section 664(a) describes the penalties for attempts. As previously
mentioned, it says that the punishment for an attempt to commit a felony punishable
by life imprisonment or death is five, seven, or nine years in prison, but “if the
crime attempted is willful, deliberate, and premeditated murder . . . the person guilty
of that attempt shall be punished by imprisonment in the state prison for life with
the possibility of parole.” (Italics added.) This penalty may be imposed only if “the
fact that the attempted murder was willful, deliberate, and premeditated is charged
in the accusatory pleading and admitted or found to be true by the trier of fact.”
(Ibid.)
At issue here is the meaning of the italicized phrase in section 664(a),
“person guilty of that attempt.” Does it refer only to persons who, in an attempt to
commit murder, act willfully, deliberately, and with premeditation? Or does it also
apply to one who does not have that mental state, but is an accomplice of someone
who does?
On point here is People v. Bright (1996) 12 Cal.4th 652. There, this court
held that section 664(a)’s requirement of life imprisonment for attempted
premeditated murder is a “penalty provision” (id. at p. 661) that is “separate from
the underlying offense” (ibid.) of attempted murder and imposes “an increased
sentence . . . when the additional specified circumstances are found true by the trier
of fact” (id. at p. 669, fn. omitted). As I explain below, Bright’s holding is
dispositive of the issue in this case.
Like a sentence enhancement, a penalty provision specifies circumstances in
which a defendant is given a sentence greater, sometimes far greater, than that
ordinarily imposed on those convicted of the same crime. The harsher punishment
is imposed either because the defendant’s conduct is particularly egregious or
3
because the defendant has an exceptionally bad prior criminal record. Thus, almost
all penalty provisions and enhancements – unlike criminal offenses – apply only
when the conduct of the defendant, not that of another perpetrator, is particularly
reprehensible. (See, e.g., § 12022, subd. (b) [use of a deadly weapon]; § 12022.1
[crime committed while the defendant is released on bail or recognizance];
§ 12022.3 [use of firearm in commission of a rape]; § 12022.5 [use of firearm in
commission of a felony]; § 12022.53, subd. (b) [use of firearm in enumerated
felonies]; § 12022.53, subd. (c) [discharge of firearm in enumerated felonies];
§ 12022.53, subd. (d) [discharge of firearm causing great bodily injury in
enumerated felonies]; § 12022.55 [infliction of great bodily injury while
discharging a firearm from a vehicle]; § 12022.7, subds. (a), (b), (c), (d), (e)
[infliction of great bodily injury in commission of a felony]; § 12022.8 [infliction of
great bodily injury in commission of a forcible sex offense]; § 12022.9 [infliction of
injury on pregnant woman].) There are certain exceptions. But in those instances
the Legislature has expressly mandated application of the sentence enhancement or
penalty provision regardless of whether the conduct at issue was committed by the
defendant or by a codefendant. (See, e.g., § 12022, subd. (a)(1) [enhancement for
being armed with firearm applies to “any principal” in which one of the perpetrators
is armed, “whether or not the person is personally armed”]; § 12022.53, subd.
(e)(1)(B) [penalty provision applies to firearm use by “[a]ny principal” in the
commission of specified gang-related felonies].)
In People v. Walker (1976) 18 Cal.3d 232 (Walker), this court explained the
significance of the difference between penalty provisions and sentence
enhancements on the one hand, and criminal offenses on the other. At issue in
Walker was whether the sentence enhancement for firearm use (§ 12022.5) applied
only when the defendant personally used a gun, or whether it also applied when the
defendant was an accomplice of the gun user. This court held that the
4
enhancement applied only to personal use, explaining: “Generally, if a statute is
intended to impose a derivative liability on some person other than the actor, there
must be some legislative direction that it is to be applied to persons who do not
themselves commit the proscribed act. Such a direction is found in section 31
which fixes responsibility on an aider and abettor for a crime personally committed
by a confederate. But the statute which defines aiders and abettors as principals
. . . does not also purport to impose additional derivative punishment grounded on
an accomplice’s personal conduct, as those statutes which provide for such
increased punishment ‘ “do not define a crime or offense but relate to the penalty to
be imposed under certain circumstances.” ’ [Citations.] Hence the rules which
make an accused derivatively liable for a crime which he does not personally
commit, do not at the same time impose a derivatively increased punishment by
reason of the manner in which a confederate commits the crime.” (Walker, supra,
18 Cal.3d at pp. 241-242, italics added.)
Thus, penalty provisions like the one at issue here consider only the
defendant’s personal conduct, unless there is an express declaration of legislative
intent to impose vicarious liability for the conduct of an accomplice. (See People
v. Piper (1986) 42 Cal.3d 471, 477 [“Since Walker, the Legislature has been quite
explicit when it intends an enhancement provision to apply to a defendant even
though he himself does not commit the proscribed act.”]; see also People
v. Gutierrez (1996) 46 Cal.App.4th 804, 814.) As I shall explain, no such intent
appears in section 664(a).
The penalty provision in section 664(a) imposes an increased sentence on a
“person guilty of that attempt” (italics added); that is, an “attempted . . . willful,
deliberate, and premeditated murder.” This language is ambiguous. It does not say
that an increased sentence is imposed on an accomplice of a person who acts
willfully, deliberately, or with premeditation. Because there is no clear legislative
5
intent to incorporate the rules governing accomplice liability, section 664(a)’s
penalty provision applies only when the defendant has personally engaged in a
premeditated attempt to commit murder. (See Walker, supra, 18 Cal.3d at p. 242.)
The majority here points out that “section 664(a) states only that the murder
attempted must have been willful, deliberate, and premeditated, not that the
attempted murderer personally must have acted willfully and with deliberation and
premeditation.” (Maj. opn., ante, at p. 9.) The majority asserts that “[h]ad the
Legislature intended to draw a distinction between direct perpetrators and aiders
and abettors, it certainly could have done so expressly.” (Id. at p. 10.) But one can
just as readily say that if the Legislature had intended section 664(a)’s penalty
provision to apply to accomplices who do not personally premeditate, it could have
expressly said so.3 This case is here because the Legislature did not clarify its
intent. When a penalty provision does not expressly state either that it applies only
to the defendant’s personal mental state or that it imposes vicarious liability for the
mental state of the actual perpetrator when the defendant is merely an accomplice,
the court construes it as looking only to the mental state of the defendant. (Walker,
supra, 18 Cal.3d at p. 242.)
To support its holding that section 664(a)’s penalty provision for attempted
premeditated murder applies to a defendant who is an accomplice to a person who

3
If the Legislature had made attempted premeditated murder a crime, the rules
of accomplice liability would automatically have applied, because they apply to all
crimes. (See Walker, supra, 18 Cal.3d at p. 242.) But as I have pointed out, a
majority of this court held in People v. Bright, supra, 12 Cal.4th 652, that section
664(a) did not set forth a crime but only a penalty provision. I dissented. (Id. at pp.
683-690 (dis. opn. of Kennard, J.).) In my view, the court cannot reconcile its
holding in Bright that attempted premeditated murder is merely a penalty provision
with its holding here that the added penalty may be imposed on an accomplice who
did not personally premeditate.
6


acted with premeditation, the majority points to language in section 664(a) that the
penalty provision may not be imposed “unless the fact that the attempted murder
was willful, deliberate, and premeditated is charged in the accusatory pleading and
admitted or found to be true by the trier of fact.” The majority reasons that the
phrase “the attempted murder was . . . premeditated” reflects the Legislature’s intent
that when there is more than one perpetrator, the penalty provision applies
whenever any of the perpetrators acted with premeditation. I disagree. In my view,
the purpose of the statutory language just quoted was not to specify who is subject
to the penalty provision, but to make clear that the applicability of the penalty
provision was to be decided at trial, not at sentencing. The quoted language does
not at all indicate a legislative intent to bring within the penalty provision’s reach an
accomplice of someone who has committed an attempted premeditated murder,
when the accomplice has not personally acted with premeditation.
For the reasons given above, I agree with the Court of Appeal that the trial
court erred when it instructed the jury that section 664(a)’s penalty provision for
attempted premeditated murder applied to all accomplices, regardless of whether
the accomplice acted with premeditation. I also agree with the Court of Appeal’s
further conclusion that the error did not prejudice defendants. Such an error would
be prejudicial only if there was evidence that some but not all of the perpetrators
acted with premeditation. Here there was no such evidence, and although it is
unclear who actually fired the shots that wounded the victims, the jury found that
each defendant personally used a firearm in the commission of each of the
attempted murders of which they were convicted.4 The error was therefore

4
As previously noted, defendant Lee was acquitted of the attempted murders
on Burns Street.
7


harmless beyond a reasonable doubt. (See People v. Sengpadychith (2001) 26
Cal.4th 316, 326 [harmless beyond a reasonable doubt standard applies to “every
element of a sentence enhancement that increases the penalty for a crime beyond
the ‘prescribed statutory maximum’ punishment for that crime”].) Thus, I join the
majority in upholding defendants’ convictions.
KENNARD,
J.
I CONCUR:
WERDEGAR, J.
8
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Lee
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 85 Cal.App.4th 706
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S094597
Date Filed:
August 14, 2003
__________________________________________________________________________________

Court:

Superior
County: Fresno
Judge: Stephen R. Henry

__________________________________________________________________________________

Attorneys for Appellant:

Alisa M. Weisman, under appointment by the Supreme Court, for Defendant and Appellant Phia Lee.

Stephen Greenberg, under appointment by the Supreme Court, for Defendant and Appellant Johnson Xiong.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson,
Acting Chief Assistant Attorney General, Mary Jo Graves, Acting Assistant Attorney General, John G.
McLean, Harry Joseph Colombo and Timothy L. Rieger, Deputy Attorneys General, for Plaintiff and
Respondent.


1


Counsel who argued in Supreme Court (not intended for publication with opinion):

Alisa M. Weisman
Law Office of A.M. Weisman
P.O. Box 4236
Diamond Bar, CA 91765-0236
(909) 465-6603

Stephen Greenberg
206 Sacramento Street, #208
Nevada City, CA 95959
(530) 470-8896

Harry Joseph Colombo
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-5170

2


Opinion Information
Date:Docket Number:
Thu, 08/14/2003S094597

Parties
1The People (Plaintiff and Respondent)
Represented by Harry Joseph Colombo
Attorney General's Office
P.O. Box 944255
1300 I St., 11th Floor
Sacramento, CA

2The People (Plaintiff and Respondent)
Represented by Attorney General - Sacramento Office
Timothy l. Rieger
P.O. Box 944255
1300 I St., 11th Floor
Sacramento, CA

3Lee, Phia (Defendant and Appellant)
Represented by A. M. Weisman
Law Office Of A.M. Weisman
P.O. BOX 4236
DIAMOND BAR, CA

4Xiong, Johnson (Defendant and Appellant)
Represented by Stephen Greenberg
Attorney At Law
206 Sacramento Street, #208
Nevada City, CA


Disposition
Aug 14 2003Opinion: Affirmed

Dockets
Jan 22 2001Petition for review filed
  APPLT [ PHIA LEE ] BY COUNSEL
Jan 22 2001Record requested
  per Joe Lopez via e mail
Jan 24 2001Received Court of Appeal record
  1 box.
Jan 24 2001Received Court of Appeal record
  three doghouses
Jan 26 20012nd petition for review filed
  by appellant (Johnson Xiong).
Mar 14 2001Time Extended to grant or deny Petition for Review
  to and including April 26, 2001.
Mar 28 2001Petition for review granted (criminal case)
  Votes: George C.J., Mosk, Kennard, Baxter, Werdegar & Chin JJ. Brown, J., did not participate.
Apr 17 2001Counsel appointment order filed
  Stephen Greenberg for appellant (Johnson Xiong).
Apr 17 2001Counsel appointment order filed
  Michelle Weisman for appellant (Phia Lee).
May 8 2001Opening brief on the merits filed
  by attorney for appellant (Lee).
May 18 2001Opening brief on the merits filed
  by attorney for appellant (Xiong). ***40n***
Jun 12 2001Answer brief on the merits filed
  by respondent. (filed in Sacto). **6/18 left message for respondent (AG) to send amended proof of service. Atty Steven Greenberg for appellant Xiong was not served.
Jun 20 2001Received:
  amended proof of service for Answer Brief/Merits filed 6/12/01 from respondent.
Jun 27 2001Reply brief filed (case not yet fully briefed)
  Appellant Phia Lee
Jun 28 2001Reply brief filed (case fully briefed)
  by appellant Johnson Xiong's.
Aug 22 2001Compensation awarded counsel
  Atty Greenberg
Aug 31 2001Filed:
  petnr's application for leave to file supplemental brief. (appln & breif under seperate cover)
Sep 21 2001Order filed:
  Appellant Lee's "Application for Leave to File Supplemental Brief" is denied.
Feb 28 2002Compensation awarded counsel
  Atty Weisman
Oct 3 2002Change of Address filed for:
  counsel for appellant Johnson Xiong. (new address: 206 Sacramento St., #208, Nevada City, CA 95959)
Apr 30 2003Case ordered on calendar
  5-28-03, 1:30pm, S.F.
May 6 2003Filed:
  Request of counsel for aplt Lee to divide oral argument time with counsel for aplt Xiong. (faxed)
May 13 2003Order filed
  The request of counsel for aplts to allow two counsel to argue on behalf of aplts. at oral argument is granted.
May 13 2003Order filed
  The request to allocate 15 minutes to appellant Lee and to allocate 15 minutes to appellant Xiong of aplts' 30-minute allotted oral argument time is granted.
May 19 2003Filed document entitled:
  Additional Authorities for Oral Argument.
May 28 2003Cause argued and submitted
 
Aug 14 2003Opinion filed: Judgment affirmed in full
  Majority Opinion by George C.J. -- joined by Baxter, Chin, Brown & Moreno, JJ. Concurring & Dissenting Opinion by Kennard, J. -- joined by Werdegar, J.
Aug 25 2003Rehearing petition filed
  appellant Phia Lee
Aug 27 2003Time extended to consider modification or rehearing
  The time for granting or denying rehearing in the above-entitled case is hereby extended to and including November 11, 2003, or the date upon which rehearing is either granted or denied, whichever occurs first.
Sep 2 2003Rehearing petition filed
  by counsel for appellant (Johnson Xiong) (40k)
Oct 22 2003Rehearing denied
  Kennard, J., is of the opinion the petition should be granted. Brown, J., was absent and did not participate.
Oct 22 2003Remittitur issued (criminal case)
 
Oct 30 2003Received:
  Receipt for remittitur from CA 5
Dec 17 2003Compensation awarded counsel
  Atty Weisman
Feb 18 2004Compensation awarded counsel
  Atty Greenberg

Briefs
May 8 2001Opening brief on the merits filed
 
May 18 2001Opening brief on the merits filed
 
Jun 12 2001Answer brief on the merits filed
 
Jun 27 2001Reply brief filed (case not yet fully briefed)
 
Jun 28 2001Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website