Nguyen

On January 28, 1999, defendant Lam Thanh Nguyen was sentenced to death for murdering Sang Due Nguyen and Tuan Pham. This appeal is automatic. (Pen. Code, § 1239, subd. (b); further undesignated statutory references are to this code.) We strike the sentence enhancements under section 186.22, subdivision (b)(1) from the sentences imposed for actively participating in a gang in counts 3, 5, 7, 10, and 14. In all other respects, including the death sentence, we affirm the judgment.

I. Facts and Background

Defendant was charged in an amended information filed on May 4, 1998, in Orange County Superior Court with three counts of murder (§ 187, subd. (a)) with the special circumstance of multiple murder (§ 190.2, subd. (a)(3)), two counts of conspiracy to commit murder (§ 182, subd. (a)(1)), three counts of attempted premeditated murder (§§ 664, subd. (a), 187, subd. (a)), six counts of participating in a criminal street gang (§ 186.22, subd. (a)), possession of a *1026 controlled substance (Health & Saf. Code, § 11350), and possession for sale of cocaine base (Health & Saf. Code, § 11351.5). The amended information further alleged that defendant had inflicted great bodily…

Concurring and Dissenting. — By their very nature, capital appeals raise issues that our court has no choice but to address. After closely considering defendant’s conviction for aiding and abetting the attempted murder of Tony Nguyen, I do not believe that conviction can stand. Accordingly, I respectfully dissent from that portion of the court’s opinion.

To be guilty of aiding and abetting, a defendant must, “ ‘by act or advice,’ ” aid, promote, encourage, or instigate the commission of a crime. (People v. Marshall (1997) 15 Cal.4th 1, 40 [ 61 Cal.Rptr.2d 84 , 931 P.2d 262 ].) The defendant must act both with knowledge of the principal’s unlawful purpose and with “ ‘the intent or purpose of committing, encouraging, or facilitating the commission of the offense.’ ” (Ibid.) In the case of aiding and abetting the offense of attempted murder, the defendant must specifically intend to kill. (People v. Lee (2003) 31 Cal.4th 613, 624 [ 3 Cal.Rptr.3d 402 , 74 P.3d 176 ] [“[T]o 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…

I. FACTS AND BACKGROUND

Defendant was charged in an amended information filed on May 4, 1998, in Orange County Superior Court with three counts of murder (§ 187, subd. (a)) with the special circumstance of multiple murder (§ 190.2, subd. (a)(3)), two counts of conspiracy to commit murder (§ 182, subd. (a)(1)), three counts of attempted premeditated murder (§§ 664, subd. (a), 187, subd. (a)), six counts of participating in a criminal street gang (§ 186.22, subd. (a)), possession of a controlled substance (Health & Saf. Code, § 11350), and possession for sale of cocaine base (Health & Saf. Code, § 11351.5). The amended information further alleged that defendant had inflicted great bodily injury on three of the surviving victims (former § 12022.7), had personally used a firearm in committing nearly all of the charged crimes (former § 12022.5, subd. (a)), and was vicariously armed with a firearm in committing one count of attempted murder (former § 12022, subd. (a)(1)). The amended information alleged that all of the charged offenses were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) The trial court dismissed both counts of conspiracy to commit…