People v. Chhoun ( 2021 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
RUN PETER CHHOUN,
Defendant and Appellant.
S084996
San Bernardino County Superior Court
FSB08658
February 11, 2021
Justice Corrigan authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Liu, Cuéllar,
Kruger, Groban, and Kim* concurred.
*
Associate Justice of the Court of Appeal, Second Appellate
District, Division Five, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
PEOPLE v. CHHOUN
S084996
Opinion of the Court by Corrigan, J.
During a home invasion robbery, defendant Run Peter
Chhoun and fellow gang members killed the entire Nguyen
family except three-year-old Dennis. The child was wounded
and left alone overnight with the bodies of his parents and
siblings. Defendant was tried with alleged accomplice Samreth
Pan. The court dismissed all charges against Pan at the close of
the People’s case. Defendant was convicted of five counts of
murder, one count of residential burglary, and three counts of
residential robbery with enhancements for personal use of a
firearm.1 He was acquitted of the attempted murder of Dennis.
The jury found true special circumstances of murder during
burglary and robbery and the murder of multiple victims.2 It
set the penalty at death. We affirm the judgment.
1
Penal Code sections 187, subdivision (a), 459, 211,
12022.5, subdivision (a). Although the jury found the personal
use allegation true for the residential burglary and robbery
charges, it determined the allegation had not been proven for
the murder charges.
2
Penal Code section 190.2, subdivision (a)(17) and (a)(3).
All further statutory references are to the Penal Code unless
otherwise specified.
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PEOPLE v. CHHOUN
Opinion of the Court by Corrigan, J.
I. BACKGROUND
A. Guilt Phase
In the summer of 1995, defendant (nicknamed “Chaka”)
and Pan (nicknamed “Rusty”) were “shot callers” and “O.G.s”3 in
the Tiny Rascals Gang (TRG). Vinh Tran (“Scrappy”) and
William Evans were junior members. Although not officially a
member of the gang, Nhung Tran (“Karol”) “took care of” young
girls who associated with TRG members. All five were originally
charged together. Because Scrappy and Evans were juveniles,
however, their cases were later severed, as was the case against
Karol.4 Evans and Karol testified at trial pursuant to plea
agreements. 5
3
The term “O.G.,” which stands for “original gangster,” is
generally used as a term of respect for older or veteran gang
members. In Asian gangs, the label is awarded based on
experience level rather than age. Even young gang members
may rise to leadership if they accrue sufficient criminal
experience. O.G.s typically advise younger members how to
plan and carry out crimes, and how to evade detection. A “shot
caller” is a respected gang member who plans how a specific
crime will be committed.
4
Although they share the same last name, Vinh (Scrappy)
and Nhung (Karol) Tran are not related. To avoid confusion, we
refer to them as “Scrappy” and “Karol,” as they were
consistently referred to in the trial court.
5
Karol pled guilty to five counts of second degree murder,
with a sentence of up to 50 years in prison. Evans pled guilty to
five counts of first degree murder, with a sentence of 25 years to
life in prison. Evans’s plea agreement also encompassed
charges in a Sacramento case. (See post, at pp. 6–8.) In
exchange for pleading guilty to the Sacramento crimes and
testifying truthfully in both cases, Evans’s 25-year-to-life
sentence in the Sacramento case could be served concurrently
with his sentence for these San Bernardino murders.
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PEOPLE v. CHHOUN
Opinion of the Court by Corrigan, J.
1. Elm Street Home Invasion Robbery and Murders
In late July, defendant asked Karol if she knew a good
place to rob. Karol described a family in San Bernardino who
were likely to have cash and jewelry in the house. She believed
a husband and wife lived there with a child and grandmother.
Karol said the family would be a good target because they were
Vietnamese and, she believed, would not call the police.
Although Karol did not want to be part of the robbery
because her parents lived nearby, defendant ultimately
persuaded her to join him. He also recruited Evans and
Scrappy, and the crime took place on August 9. Defendant had
a Glock nine-millimeter pistol but wanted a second gun. He
drove the group to Pan’s house. He told Pan they were on their
way to commit a robbery and asked for Pan’s gun. Pan said he
did not want to be involved but provided a Glock pistol, which
defendant handed to Scrappy.
Defendant drove to the target house on Elm Street. Karol
was to approach the front door because she knew the residents.
While she knocked, Scrappy stood behind a bush, armed with
Pan’s gun. When Henry Nguyen6 answered the door, Scrappy
rushed inside, followed by defendant and Evans. Karol fled to
defendant’s red Honda, which he had parked outside.
The Nguyens did not understand English, and Scrappy
was the only robber who spoke Vietnamese. Defendant gave
orders that Scrappy translated to the family. Initially, Henry,
his wife, Trinh Tran, and their 13-year-old daughter Doan were
the only family members in the living room. Scrappy appeared
6
To avoid confusion, we refer to members of the Nguyen
family by their first names.
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PEOPLE v. CHHOUN
Opinion of the Court by Corrigan, J.
with three children from another room: 11-year-old Daniel, 10-
year-old David, and 3-year-old Dennis. Everyone was ordered
to get on the floor. Evans searched the house while Scrappy
demanded cash. Henry said they had none, but when defendant
threatened Dennis with a large knife Henry turned over about
$2,000. When Daniel volunteered that he had some money in
his bedroom, Evans followed him into a hallway. Evans heard
a gunshot and returned to the living room, to see Henry lying
facedown. Defendant stood less than a foot away holding a gun.
At defendant’s order, Evans left the house and sat in the car
with Karol. Both reported hearing several gunshots from inside
the house. Karol estimated the robbers had been in the house
about 15 minutes before the first shots were fired. A neighbor
heard several gunshots and saw a car drive away.
Defendant drove the group to Karol’s house. In the car,
defendant remarked, “It must have been the wrong house,”
because there was no grandmother and the family did not have
as much money as he had expected. He said five people had been
killed. He handed Scrappy a gun, directing him to unload it.
Later, he told Karol he had held “the little boy” at knifepoint
trying to get more money from the mother. Pan was waiting at
Karol’s house, and defendant returned his pistol. Learning of
the murders, Pan became extremely angry and called the group
stupid. Defendant doled out cash to everyone but Pan. They
also divided some of the Nguyens’ jewelry. Defendant told
everyone to “act like nothing’s happened,” and they spent the
rest of the evening at a pool hall. Defendant told other gang
members he had done some of the shooting at the Elm Street
house. He was also overheard saying that “Scrappy went crazy
and shot a kid.”
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Opinion of the Court by Corrigan, J.
The next morning, Henry’s sister called the Nguyen home.
The phone rang for a long time. Dennis finally answered and
said, “Mommy’s dead.” Karol’s mother went to the house and
heard Dennis crying inside. He finally opened the door and then
sat next to his mother’s body. Henry, Trinh, and David lay dead
on the living room floor. Toothpaste had been smeared around
Trinh’s nostrils, mouth, and eyes, the tube discarded near her
body. Another neighbor found Doan and Daniel lying dead in a
bedroom. All had been shot repeatedly. Dennis was holding his
brother’s head and “just crying, screaming.”
Dennis had been shot in the hand. Henry was shot in the
head and neck. One shot was fired with the gun’s muzzle placed
directly against his skull. He was also shot in the chest at close
range while lying on the floor. Four superficial cuts on the back
of his neck had been inflicted by a sharp object, like a knifepoint.
Trinh was shot once in the thigh and twice in the head, at very
close range. Two of her teeth were detached by the force of the
bullets. The oldest child, Doan, was shot in the leg, chest, and
head. Another bullet pierced a hand that she had held up to
protect her face. Daniel was shot in the lower leg and chest.
David was shot twice in the chest and once in the back of the
head.
Several nine-millimeter cartridge cases and spent bullets
were found in the living room. Trinh’s emptied purse was found
in the hallway. A meat cleaver rested atop the stereo cabinet.
More casings and rounds were recovered near the victims in a
bedroom. Fourteen of the fired casings were Winchester, and
one was S&B brand. All were fired from the same Glock nine-
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Opinion of the Court by Corrigan, J.
millimeter pistol.7 No fingerprints matching the gang members
were found in the house, but a latex glove was discarded in the
backyard.
Shortly after the crimes, defendant told Jonathan Ibarra
that he had committed the robbery. He said five people were
killed but “somebody fucked up in the house and one got away.”
He shot that one in the arm. Ibarra had seen both defendant
and Pan with nine-millimeter Glock pistols around the time of
the murders. Defendant later told a jail inmate that Scrappy
had squirted toothpaste in a woman’s face during the robbery.
He said it was poison and ordered the family to “[t]ell him where
the fuckin’ money is or she’s going to die.”
2. Sacramento Home Invasion Murders
Defendant and other TRG members were linked to a home
invasion incident in Sacramento almost two weeks before the
Elm Street crimes. Jurors were admonished that the
Sacramento evidence was admitted for a limited purpose to
show “a common scheme, motive, or knowledge” bearing upon
the intent of defendant and Pan to commit the Elm Street
murders.
Defendant, Pan, Scrappy, and Evans drove to Sacramento
and met with other TRG members to plan a robbery. Bunjun
Chhinkhathork (nicknamed “Puppet”) suggested robbing an
apartment where the owners sold cigarettes and other items.
On the evening of July 27, 1995, defendant drove to a park then
7
After the evidence was presented in the guilt phase,
another ballistics examination determined one bullet had been
fired by a different gun, which was also a Glock nine-millimeter.
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Opinion of the Court by Corrigan, J.
led Pan and Evans through a fence to the residence. He told
Chhinkhathork to stay in the car as the getaway driver.
Quyen Luu and her husband, Hung Dieu Le, operated a
small store in their home. Their 17-year-old daughter Amie was
sitting on the stairs of the building when defendant, Pan, and
Evans approached. One pointed a gun at her and gestured for
her to follow. Instead, she yelled for her mother to close the door
and ran upstairs to a neighbor’s apartment, where her brother
Vincent and sister Mei were visiting. The Le family was just
finishing dinner when a robber entered. He struggled with
Quyen, shooting her in the leg, then shot Hung and his father,
Nghiep Thich Le, several times. The parties stipulated that 47-
year-old Hung died of a gunshot to the chest, and 73-year-old
Nghiep was killed by a shot to the head.
Evans testified that defendant went into the apartment
alone. When the three returned to the car, Chhinkhathork
drove away. Defendant said he shot “the lady” because she tried
to grab him. He also shot a man who had tried to hit him with
a chair. He later joked to Karol about the “stupid guy” who
thought he could “stop a bullet with a chair.” After the incident,
defendant drove Evans and other TRG members back to San
Bernardino. They acquired no money in the attack.
None of the survivors could identify the attackers, but all
said only one man held a gun and did the shooting. About an
hour before the robbery, a different man had come to the
apartment, bought candy, then joined the eventual shooter.
They drove off together in a Honda Accord with a damaged front
fender. The car, registered to Pan’s mother, was recovered with
live nine-millimeter rounds in the trunk. All shell casings
recovered from the apartment had been fired by the same Glock
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nine-millimeter pistol. It was a different gun from the one used
in the Elm Street killings.
3. Investigation
A detective tried to interview Dennis in the emergency
room, but the child was too upset to answer questions. The
following week, assisted by a child psychologist, police were able
to obtain a statement. Dennis said his father answered a knock
at the door and three men entered. One put a gun to his father’s
head and demanded money. Another took necklaces from
Dennis and his mother. Everyone was ordered to “get down.”
His father was shot in the head, and one of the men also shot
Dennis in the hand. The men left by a rear door. Dennis
thought the robbers all had black handguns. They did not wear
masks.
Shortly after the Elm Street murders, defendant visited
his girlfriend in Seattle. Evans and Scrappy joined him.
Defendant needed to borrow gas money for the drive home and
produced a jade pendant to be held as collateral. The necklace
was later recovered and belonged to Trinh, who had been
wearing it at the time of the robbery.
Defendant, Evans, and Scrappy left Seattle, stopping in
Sacramento, where they were arrested. A Glock nine-millimeter
shell casing was recovered from defendant’s car and linked to
the gun used at Elm Street. Defendant denied involvement in
those murders. As to the Sacramento crimes, he admitted
telling a girl outside the home to “shut up,” but claimed he had
stayed outside the apartment and ran away when he heard
gunshots. Pan told the police a similar story.
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4. Expert Testimony
Sergeant Marcus Frank of the Westminster Police
Department testified as an expert on Southeast Asian gangs.
He described the gangs as loosely organized, with leadership
roles given to those with the most criminal experience. To
become an O.G. or shot caller, members must have committed
certain felonies. Unlike western gangs, Asian gangs do not
claim a geographic territory and tend to be highly mobile. TRG
had over 1,000 members nationwide, with nearly 800 of them in
California, ranging in age from 11 to 25. In Southern California,
about half its members are Vietnamese and half Cambodian.
Females are limited to supporting roles. Only the males are
allowed to hold guns and commit robberies or car thefts.
Home invasion robberies are a hallmark of Asian street
gangs. In the late 1970s, Vietnamese gangs in Orange County
developed the practice, which had previously been rare. These
are complex crimes, with specific jobs typically assigned to
different members. The gangs frequently target Asian families.
Because valuable jewelry is a symbol of the family’s wealth and
community standing, jewelry is often kept at home, where it can
be easily accessed. Many in the Southeast Asian community are
reluctant to cooperate with police. The gangs understand this
and know how to intimidate victims to hinder investigations.
Guns are often used to terrorize victims but, while threats are
common, it is unusual for home invasion robberies to result in
murder. Typically, gang members manipulate the most
vulnerable victim, assaulting the youngest or the oldest family
member until someone discloses where money and jewelry are
kept. A nonfatal shot may be fired to secure group compliance.
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B. Penalty Phase
1. Aggravating Evidence
In the penalty phase, the prosecution offered more
evidence about the Sacramento incident along with defendant’s
additional murders and violent behavior in custody.
a. Additional Sacramento Evidence
A medical examiner testified based on autopsy reports and
photographs that 47-year-old Hung Le died from a single
gunshot to the chest, fired at “apparently distant range.” He
would have died quickly. The second victim, 73-year-old Nghiep
Le, was shot in the arm and directly in the face, with the bullet
entering through the upper lip.
b. Spokane Home Invasion Robbery and Murders
A little over two weeks before the Sacramento murders,
defendant committed another home invasion robbery with
murders in Spokane, Washington. Police interviewed one of the
survivors, four-and-a-half-year-old Joe Hagan, Jr. Portions of
his account were read to the jury. Joe said that when his mother
opened the door the robbers entered with a knife and a gun.
They tied up his parents and pushed them to the floor. The
robbers cut both his parents on the face or neck. Joe heard
gunshots but was afraid and covered his head with a pillow. He
ran to his father and tried to wake him and then held his sister
on the couch until the next morning, when he went to alert the
neighbors. The robbers took jewelry from him and his sister
before they started hurting his parents. Shown a photo array,
Joe immediately pointed to defendant, saying he was positive it
was the person who had hurt his dad. Defendant was the larger
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of the two attackers. About a year later, Joe identified a
photograph of Giao Ly as the second robber.8
Spokane police responded around 7:30 the next morning
to find the bodies of 27-year-old Johnny Hagan, Jr., and 23-year-
old Thi Hong Nga Pham. Pham’s hands were tied with phone
cord, and speaker wire was wrapped around her neck. She was
shot in the head, face, and chest. The face and the chest shots
came from close range. Pham’s jaw was broken in two places;
she had also been cut several times in the face and neck. A
wedding ring and engagement ring were found inside her
mouth. Hagan had also been bound with phone cord and
speaker wire. He was shot in the ear, at the base of the skull,
and through the back of the head. Two shots were fired from
only an inch or two away. Hagan had bruising and a cut across
the front of his neck. Officers found a bloody knife on a counter
and several shell casings from a .45-caliber automatic near the
bodies. Giao Ly’s palm print was found on a kitchen cupboard,
and defendant’s fingerprint was lifted from inside the
apartment door. Defendant denied ever being in the residence
and could not explain why his fingerprint was found there.
Evans recalled seeing a .45-caliber gun at defendant’s house.
Defendant’s girlfriend, Champa Onkhamdy, testified
defendant visited her in Portland in early July 1995. They drove
to Spokane with Ly, whom she knew as “Sandman,” and
Kunthea Sar, also known as “Precious.” The women stayed at
an apartment while defendant and Ly went out. The men
returned with jewelry and cash, which they divided among
8
When shown the photographic lineups again during trial,
Joe could not recall which photos he had selected and could no
longer identify defendant or Ly.
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themselves and one or two others. A police officer testified that
Onkhamdy reported hearing the men discuss a murder. She
disavowed the statement at trial, however, saying the men were
speaking Cambodian, a language she did not understand.
Before defendant flew back to San Bernardino, he gave
Onkhamdy five rings and a bracelet. Hagan’s mother identified
one ring as her son’s and the bracelet as her grandson’s.
c. Drive-by Shootings
i. Bunlort Bun
On August 6, 1995, defendant and other TRG members
decided to drive around San Bernardino looking for members of
the Oriental Boys, a rival street gang. Defendant gave Evans a
gun and followed two men in a red Toyota. The driver, later
identified as Bunlort Bun, let the passenger out and sped away.
Defendant gave chase while Pan and Evans took turns shooting
at the car until it swerved to a stop. Defendant pulled up next
to the car. Seeing Bun slumped over, he told Pan and Evans to
make sure he was dead. They said they were out of bullets, so
defendant handed Pan another ammunition clip. Pan shot Bun
three times.
Afterward, either defendant or Pan told Karol that they
had seen “Bones,” an Oriental Boy gang member who had
previously shot 25 rounds at the home of Pan’s mother.
Defendant said they followed Bones and shot him. At
defendant’s urging, Karol and others visited the murder scene.
When they reported back that there were many police cars
there, defendant cheered and joked that they had “drained a
whole magazine” into the victim. The 32 cartridge cases found
at the scene had been fired from the same two guns used in the
Elm Street and Sacramento shootings.
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The passenger who had been in Bun’s car testified that he
was a member of the Oriental Boys gang, but Bun was not. A
different member of the Oriental Boys was known as “Bones.”
Bun was shot five times, with three fatal wounds to the chest
and abdomen. The downward trajectory of the bullets was
consistent with shots fired into a slumped-over body.
ii. Miguel Avina Vargas
On August 8, 1995, two days after Bun’s shooting and the
day before the Elm Street murders, defendant was driving in
Pomona. Pan rode in front, with Sar and Diep Tran (also called
“Giggles”) in the back. When they saw a man in a white pickup
truck, defendant made a U-turn, drove at the truck, and pulled
a gun. Pan told the women to duck. Defendant and/or Pan fired
several shots at the truck until it hit a curb and stopped. Sar
later told Karol, “Oh, man, we just shot up a Mexican for
throwing up [a] sign.”
The truck’s driver left the scene. The passenger, Miguel
Avina Vargas, died of massive internal bleeding from a bullet to
the heart. Ten cartridge casings were recovered from the area.
All had been fired from one of the guns used in the Elm Street,
Sacramento, and Bun shootings.
d. In-custody Behavior
In May 1996, defendant became angry with a jail deputy
who denied him “tier time” outside his cell after lights out. He
kicked his cell door and yelled for several minutes, threatening
to kill the deputy and his family. The conflict continued into the
night. When deputies entered his cell in the morning, they
found defendant armed with a six-inch stainless steel shank.
Defendant then refused to leave his cell for court. He poured
shampoo and toilet water onto the cell floor, urging the deputies
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to come and get him. He was forcibly removed in a violent
altercation. A second shank was found hidden in the cell, along
with a piece of braided cord that could be used as a garrote.
In December 1998, shortly before defendant’s trial was to
begin, he was overheard on a phone call discussing a Karol or
Carolyn. He said this person had been in protective custody but
might be out and he needed to locate her. He said he had men
looking for her because “without her, they didn’t have a case”
against him.
2. Mitigating Evidence
Defendant presented extensive evidence about his early
childhood in Cambodia under the Khmer Rouge regime,
atrocities the Khmer Rouge committed against his family and
others, and expert testimony explaining how these traumatic
experiences may have affected his psychological and
neurological development. Because defendant raises no legal
issue concerning this evidence, we summarize it only briefly
here.
a. Childhood Trauma
Defendant was born in Cambodia in 1972, shortly before
the Khmer Rouge took over the country. His father, previously
a rice farmer, was drafted and fought against the regime. When
their village was attacked, the family hid for more than a week
under a Buddhist temple. The Khmer Rouge took over the town,
imprisoned his father, loaded defendant and his brother into a
wagon at gunpoint, and sent them to a work camp. Defendant
was four or five years old and his brother was seven or eight.
Children in the camp were indoctrinated to reject their parents
and consider the state their family. They had no bed or blankets
and were fed only rice water. Many died. Defendant and his
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brother ran away at least twice but were caught and brutally
punished upon their return. They were freed only after the
Vietnamese ousted the Khmer Rouge.
The family was reunited and decided to leave Cambodia,
walking for three days and two nights to the Thailand border.
They passed many corpses and saw an entire family killed by an
exploding landmine. In a Thai refugee camp, defendant often
ran away to hunt or beg for more food. He showed signs of
starvation and tuberculosis.
The family immigrated to America in 1981, settling in
Mobile, Alabama. Defendant went to a school that was not
equipped to handle Cambodian refugees and offered no
language support. Defendant suffered from poor health and
often ran away from home, sleeping in a dumpster. After four
years, the family moved to California.
b. Psychological and Neurological Evidence
Trauma expert William Foreman interviewed defendant
and his family and reviewed school, court, and medical records.
He did not administer psychological tests because he believed
defendant lacked the necessary English and reading
comprehension skills. Foreman reviewed the history of
defendant’s early life in detail. The most important thread was
his parents’ inability to intervene and protect him. For example,
defendant nearly drowned when he was very young and was
pulled from the water by a villager. Although he was confused
and ill afterward, the Khmer Rouge prevented his mother from
comforting him. Throughout his childhood, defendant’s actions
were focused on survival, something typically seen in trauma
cases. In the United States, defendant again lacked parental
care and supervision. His parents drank heavily, argued
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violently, and beat the children. Foreman diagnosed defendant
with reactive attachment disorder and chronic posttraumatic
stress disorder (PTSD). Antisocial personality disorder was
another possible diagnosis based on defendant’s “sheer degree of
criminal behavior.” However, Foreman considered these
behaviors artifacts of survival strategies developed in
Cambodia. Defendant said he regretted murdering the Nguyen
children but had been unable to react emotionally until long
after the event. Foreman concluded defendant’s criminal and
gang activities were reenactments of his early childhood
experiences.
Paul Leung, an expert in cross-cultural psychiatry,
reviewed the details of defendant’s early life and explained that
even incidents defendant did not remember could have
significantly affected him. Malnutrition could have delayed his
brain development and impaired his learning ability. Exposure
to war and violence could have caused long-term anxiety. There
were also indications of serious head trauma, which could have
altered his temperament. Although defendant satisfied several
of the criteria, ultimately Leung could not diagnose PTSD
because defendant was unable to recall specific traumatic
events. Nevertheless, his history and behavior were consistent
with PTSD.
Child psychiatrist William Sack also testified about the
impact of defendant’s early childhood. The forced separation
from his parents prevented him from forming a strong family
attachment. He would have felt abandoned and survived by
self-reliance. The coping strategies he had learned in Cambodia
worked against him in the United States. The lack of support
from school and family further impaired his development. He
found acceptance and trusted friends when he joined a gang.
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Sack had participated in a large study assessing PTSD in
Cambodian refugees. He discussed defendant’s various
symptoms and the traumatic experiences that could have
induced them. Sack concluded defendant might qualify for a
PTSD diagnosis only “if you bend the rules a little bit,” because
defendant did not report the type of recurrent intrusive
thoughts about trauma that are typically seen. Instead, Sack
thought reactive attachment disorder was the best diagnosis.
Defendant also reported significant substance abuse and
chronic depression.
A scan of defendant’s brain showed decreased frontal lobe
functioning, which is frequently seen in traumatic brain
injuries. Portions of his brain were asymmetrical, a pattern also
reported in PTSD patients. Defendant displayed abnormally
high activity in the orbital frontal lobe, a finding associated with
both traumatic brain injury and PTSD. Defendant’s brain
abnormalities could have been caused by head injury or
malnutrition. These patterns have been associated with poor
judgment and aggressive impulse control.
c. Anticipated Custody Conditions and
Family Testimony
A former correctional counselor described the conditions
in secure housing units at Pelican Bay State Prison. If given a
sentence of life without parole, defendant’s offenses and jail
record would require him to be placed in a Level 4 prison, like
Pelican Bay. He would spend at least four to six years in the
highly restrictive setting of the prison’s secure housing unit.
In addition to describing his childhood, defendant’s family
members asked the jury to show mercy in sentencing.
Onkhamdy testified that defendant had moved with her to
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Portland in an effort to quit TRG. He took a job at a deli and
spent time fishing and cooking. When he returned to California
in June 1995, he said he was going to visit his family. The couple
had a son born after defendant’s arrest. Although defendant
saw the child only once, during a jail visit, he sent the boy
birthday cards and letters.
3. Rebuttal
During trial, defendant was housed in the county jail’s
high security unit. Deputies conducting a routine search of his
cell found a handmade handcuff key hidden under the frame of
his desk. When tested, the key successfully opened a pair of
handcuffs.
Craig Rath, a clinical psychologist, disputed the defense
experts’ findings. Based on defendant’s speech in recordings, his
high school grades, and the letters he wrote to his girlfriend and
others, Rath observed defendant was facile in English. He could
have taken many psychological tests that were not given. Rath
found the reactive attachment disorder diagnosis questionable
because there was ample evidence defendant had formed bonds
with his girlfriend and other gang members. This bonding
would be impossible for someone with the disorder. Rath
thought a conduct disorder was more likely. Defendant’s
continual criminal behavior was inconsistent with PTSD and
more strongly associated with psychopathy or antisocial
personality disorder. Defendant’s traits and behavior were
consistent with severe psychopathy.
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II. DISCUSSION
A. Guilt Phase Issues
1. Admission of Inflammatory Evidence
Defendant contends the court improperly admitted
irrelevant evidence about the Sacramento murders and his gang
membership. Noting the inflammatory quality of the evidence,
he contends the errors were so prejudicial as to violate his rights
to due process and a reliable guilt verdict. There was no error
and no constitutional violation.
a. Other Crimes
i. Background
Before trial, the prosecution gave notice that it intended
to present guilt phase evidence of several other homicides in the
days leading up to the Nguyen murders. Specifically, the
prosecution sought to admit evidence of the July 10 home
invasion robbery and murders in Spokane; the July 27 murders
in Sacramento; the July 28 execution-style murder of Trang Vu
(see post, at pp. 56–57); the August 6 drive-by murder of Bun;
and the August 8 drive-by murder of Vargas. Defendant and
Pan each moved to exclude this evidence. The court granted
their motions as to most of the crimes, concluding the
circumstances were too dissimilar from the present charges for
the evidence to be admissible. It held an Evidence Code
section 402 hearing to consider admissibility of the Sacramento
crimes.
After hearing from several witnesses, the court
determined the Sacramento evidence was admissible against
Pan on the issue of knowledge and intent in providing the
murder weapon. Although the issue was “more troublesome and
closer” in defendant’s case, the court concluded the evidence
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showed premeditation and malice. The Sacramento crimes
tended to show defendant entered the Elm Street home with the
intent to commit a robbery and, in doing so, “he did not hesitate
to kill individuals when he felt it to be necessary.” Because the
evidence was admissible against both defendant and Pan, the
court also denied a severance motion. After the court granted
Pan’s motion for acquittal (see § 1118.1), defendant renewed his
objections and moved for a mistrial. The court denied the
motion, noting that defendant’s conduct in Sacramento tended
to show his premeditation and intent to kill in the Elm Street
murders. Similarities between the crimes also tended to
establish they were done as part of a common scheme.
During trial, the court instructed extensively on the
limited ways the jury could use the Sacramento evidence. Three
times, before testimony concerning the Sacramento case, the
court read the following admonition:
“Certain evidence is admitted for a limited purpose. Such
evidence is going to be received at this time. [¶] You are
instructed that you are not to consider it for any purpose other
than the limited purpose for which it is admitted. The fact that
it is being admitted at this point in the trial has no significance
as to its relative importance.
“This trial concerns charges by the [P]eople that the
defendants allegedly committed a home-invasion
robbery/murder which occurred on August 9, 1995, on Elm
Street in the City of San Bernardino. [¶] I remind you that the
defendants have entered pleas of not guilty and it will be up to
the jury to determine whether or not they are guilty of the
charges which the People must prove to you beyond a reasonable
doubt.
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“The law permits under certain circumstances that
evidence of similar crimes or criminal acts to those charged in
this case may be presented to the jury. This evidence concerns
an uncharged crime in this trial that occurred in the [C]ity of
Sacramento on July 27, 1995. That crime involved a home-
invasion robbery/murder. [¶] This evidence is being admitted
for the limited purpose as evidence in the Elm Street crimes of
premeditation and malice aforethought as required in the crime
of first degree murder, [and] the necessary intent as required in
the crimes of murder, robbery, and burglary. It may be used as
evidence of a common scheme, motive, or knowledge. You will
be completely instructed as to the elements of all crimes charged
in the Elm Street incident.
“Before you may consider this evidence for any purpose,
you must be satisfied by a preponderance of the evidence that
the Sacramento crimes took place and that the defendants were
participants in committing them. You are not to consider any of
this limited evidence as proof of a propensity of the defendants
to commit the crimes charged in the Elm Street offenses and you
are reminded you may not find either or both of the defendants
guilty of the Elm Street crimes solely on this evidence, but must
determine the truth of those charges beyond a reasonable doubt.
And you may consider this evidence of the Sacramento crimes
only for the limited purpose for which it is being admitted.
[¶] Further, you may not and you are not to consider this
evidence of the Sacramento offenses as corroboration of the
testimony of any coparticipant that may testify in this trial
concerning the Elm Street killings.”
A slightly modified version of this admonition, referring to
a singular defendant instead of “defendants,” was also included
in instructions before closing argument. At that time, the court
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Opinion of the Court by Corrigan, J.
gave further instructions on the limited purposes for which the
Sacramento evidence could be considered:
“Evidence has been introduced for the purpose of showing
that the defendant committed a crime other than that for which
he is on trial. [¶] This evidence, if believed, may not be
considered by you to prove that defendant is a person of bad
character or that he has a disposition to commit crimes. It may
be considered by you only for the limited purpose of determining
that it tends to show a characteristic method, plan, or scheme in
the commission of criminal acts similar to the method, plan, or
scheme used in the commission of the offenses in this case[,]
which would further tend to show . . . [¶] [t]he existence of the
intent which is a necessary element of the crime charged; [¶] [or,
a] motive for the commission of the crime charged[.] [¶] For the
limited purpose for which you may consider such evidence, you
must weight it in the same manner as you do all other evidence
in this case.” (See CALJIC No. 2.50.)
ii. Discussion
Defendant first argues the Sacramento evidence was
improperly admitted under Evidence Code sections 1101 and
352. Evidence Code section 1101, subdivision (a) prohibits
admission of evidence of a person’s character, including evidence
of character in the form of specific instances of uncharged
misconduct, to prove the conduct of that person on a specified
occasion. The provision “expressly prohibits the use of an
uncharged offense if the only theory of relevance is that the
accused has a propensity (or disposition) to commit the crime
charged and that this propensity is circumstantial proof that the
accused behaved accordingly on the occasion of the charged
offense.” (People v. Thompson (1980) 27 Cal.3d 303, 316.)
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“Subdivision (b) of section 1101 clarifies, however, that this rule
does not prohibit admission of evidence of uncharged
misconduct when such evidence is relevant to establish some
fact other than the person’s character or disposition.” (People v.
Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) “If an uncharged
act is relevant to prove some fact other than propensity,” such
as the perpetrator’s intent or identity, or the existence of a
common plan, “the evidence is admissible, subject to a limiting
instruction upon request.” (People v. Bryant, Smith and Wheeler
(2014) 60 Cal.4th 335, 406 (Bryant, Smith and Wheeler).)
“Evidence of uncharged crimes is admissible to prove
identity, common plan, and intent ‘only if the charged and
uncharged crimes are sufficiently similar to support a rational
inference’ on these issues.” (People v. Edwards (2013) 57 Cal.4th
658, 711 (Edwards).) The degree of similarity varies depending
on the purpose for which the evidence is offered. “The least
degree of similarity . . . is required in order to prove intent.”
(Ewoldt, supra, 7 Cal.4th at p. 402.) For this purpose, “the
uncharged misconduct must be sufficiently similar to support
the inference that the defendant ‘ “probably harbor[ed] the same
intent in each instance.” ’ ” (Ibid.) A higher degree of similarity
is required to prove the existence of a common plan: “[E]vidence
of uncharged misconduct must demonstrate ‘not merely a
similarity in the results, but such a concurrence of common
features that the various acts are naturally to be explained as
caused by a general plan of which they are the individual
manifestations.’ ” (Ibid.) Finally, although not at issue here,9
9
The court specifically ruled the Sacramento evidence was
not admissible to prove identity. There was ample other
evidence that defendant was among the attackers in both
Sacramento and San Bernardino. The court also instructed that
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“[t]he greatest degree of similarity is required for evidence of
uncharged misconduct to be relevant to prove identity.”
(Ewoldt, at p. 403.) To establish identity, the uncharged and
charged crimes “ ‘must be so unusual and distinctive as to be
like a signature.’ ” (Ibid.)
Even if evidence of the uncharged conduct is sufficiently
similar to the charged crimes to be relevant for a nonpropensity
purpose, the trial court must next determine whether the
evidence’s probative value is “substantially outweighed by the
probability that its admission [would] . . . create substantial
danger of undue prejudice, of confusing the issues, or of
misleading the jury.” (Evid. Code, § 352; see Ewoldt, supra, 7
Cal.4th at p. 404.)
As with other evidentiary rulings, the trial court’s decision
is reviewed for abuse of discretion. (Edwards, supra, 57 Cal.4th
at p. 711.) “ ‘Under the abuse of discretion standard, “a trial
court’s ruling will not be disturbed, and reversal . . . is not
required, unless the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted
in a manifest miscarriage of justice.” [Citation.]’ ” (People v.
Foster (2010) 50 Cal.4th 1301, 1328–1329 (Foster).) We conclude
evidence of the Sacramento crimes was properly admitted to
before jurors could even consider the Sacramento evidence as to
common plan or scheme or state of mind, they had to find by
preponderating evidence that defendant had participated in
both attacks. Naturally, as with all circumstantial evidence, the
jury could not rely on the Sacramento evidence as proof of guilt
unless it concluded those relevant facts had been proven beyond
a reasonable doubt. The jury was given CALJIC Nos. 2.01 and
2.02, which properly explained the use of circumstantial
evidence.
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show defendant’s state of mind for the charged offenses.
Because the court did not abuse its discretion under state law,
defendant’s constitutional claims also fail. (People v. Fuiava
(2012) 53 Cal.4th 622, 670.)
As the trial court observed, the Sacramento murders
shared numerous common features with the Elm Street attacks
committed less than two weeks later. Both sets of murders
occurred in the evening during home invasion robberies. Both
were carried out as gang-related activities. The targets were
Asian10 families, known to someone associated with the gang,
and believed to keep cash or jewelry in the home. In both cases,
the person who had provided information on the family waited
in the car while other gang members entered the home.
Defendant took two associates inside with him each time: Pan
and Evans in Sacramento; Evans and Scrappy in San
Bernardino. Defendant was armed with a Glock nine-
millimeter pistol in each robbery. The incidents unfolded
similarly, as well. In each, the robbers inflicted a nonfatal
wound on one family member while demanding that the others
produce money and valuables. When the victims did not comply,
they were shot repeatedly.
There were some differences between the incidents. The
Sacramento crime occurred in an apartment rather than a
house. It was witnessed by other family members from an
upstairs apartment. Defendant was identified as the only
robber armed with a handgun. He left two family members alive
in Sacramento and obtained no money but left only one survivor
at Elm Street and acquired cash and jewelry. These differences
10
Both were apparently Vietnamese, although Quyen Luu of
the Le family used a Cantonese interpreter in testifying.
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do not undermine the probative value of the crimes’ many
similarities. If anything, they reveal that defendant and his
fellow gang members learned from their recent mistakes and
carried out the Elm Street crimes more effectively. The botched
Sacramento crime could explain defendant’s desire to have a
second gun available at Elm Street. Defendant also complains
that the similarities the court found could describe most
residential robberies. However, “it was the combination of
similar factors common to” both crimes that rendered them
distinctive and made the Sacramento evidence relevant for a
nonpropensity purpose. (People v. Rogers (2013) 57 Cal.4th 296,
328 (Rogers).) In an Evidence Code section 1101, subdivision (b)
analysis, “ ‘features of substantial but lesser distinctiveness
may yield a distinctive combination when considered together.’ ”
(Rogers, at p. 328.)
“ ‘ “We have long recognized ‘that if a person acts similarly
in similar situations, he probably harbors the same intent in
each instance’ . . . . The inference to be drawn is not that the
actor is disposed to commit such acts; instead, the inference to
be drawn is that, in light of the first event, the actor, at the time
of the second event, must have had the intent attributed to him
by the prosecution.” ’ ” (People v. Roldan (2005) 35 Cal.4th 646,
706 (Roldan).) The Sacramento and Elm Street crimes were
sufficiently similar to show the same intent in both cases: to kill
any or all residents if necessary to successfully complete the
robbery. For the same reason, as the trial court observed, the
Sacramento evidence tended to show that the Elm Street
murders were premeditated and deliberate, rather than the
result of an impulsive or spontaneous reaction. We have
frequently upheld the admission of uncharged crime evidence
relevant to premeditation, deliberation, and intent to kill. (See,
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e.g., Rogers, supra, 57 Cal.4th at p. 328; People v. Soper (2009)
45 Cal.4th 759, 778 (Soper).) Similar evidence was also held
properly admitted to show intent and common design or plan in
People v. Johnson (2013) 221 Cal.App.4th 623. In Johnson,
“Both crimes were home-invasion robberies. The main purpose
of the crimes was to obtain drugs. The modus operandi used to
gain admission into the residences was the same: knocking on
the front door and forcing entry when the victim opened the
door. In both crimes, appellant was assisted by two accomplices
and was the ‘mastermind.’ ” (Id. at p. 635.) Similarly here, the
trial court did not abuse its discretion in admitting the
Sacramento crimes to show defendant’s state of mind.
As in Johnson, the evidence was also relevant to whether
defendant acted in accordance with a common design or plan.
“Evidence of a common design or plan . . . is not used to prove
the defendant’s intent or identity but rather to prove that the
defendant engaged in the conduct alleged to constitute the
charged offense.” (Ewoldt, supra, 7 Cal.4th at p. 394.) Here, in
addition to asserting premeditation and deliberation, the
prosecution pursued first degree murder charges under a felony-
murder theory. It had to prove not only that members of the
Nguyen family were murdered, but also that the murders were
committed in the course of a robbery or burglary. Evidence of
defendant’s conduct 13 days earlier was relevant to show he
employed the same general plan on both occasions. Armed with
a nine-millimeter pistol, defendant and two fellow gang
members entered the homes of specifically targeted Asian
families, demanded cash and jewelry, disabled one family
member with a nonfatal shot, then killed some or all of the
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Opinion of the Court by Corrigan, J.
victims.11 “ ‘To establish the existence of a common design or
plan, the common features must indicate the existence of a plan
rather than a series of similar spontaneous acts, but the plan
thus revealed need not be distinctive or unusual’; rather it ‘need
only exist to support the inference that the defendant employed
that plan in committing the charged offense.’ ” (Edwards,
supra, 57 Cal.4th at p. 712.) Accordingly, once the evidence was
admitted to show defendant’s state of mind, the court could also
properly instruct on its relevance to show a common plan. 12
Defendant protests the Sacramento evidence was not
relevant to any disputed issue. He argues intent to kill was clear
from the manner of the killings, with the victims shot at very
close range, and that premeditation should not be considered a
disputed issue because in closing argument the prosecutor
invited the jury to rely on felony murder as an “easier” path to a
first degree murder conviction. Finally, he maintains that no
one disputed a robbery and burglary had taken place at Elm
Street. The only real dispute, according to defendant, was his
identity as one of the Elm Street attackers. These arguments
misapprehend the prosecution’s burden at trial. As we have
repeatedly noted, a not guilty plea places in issue all elements
of the charged crimes. (See, e.g., Bryant, Smith and Wheeler,
11
Quyen Luu’s testimony suggests Hung Le’s brother and
possibly one other person were in the Sacramento apartment
during the robbery, but it does not appear these individuals
were shot.
12
Separately, defendant asserts that the Sacramento
evidence was admissible only against Pan, and the court erred
in refusing to sever his trial from Pan’s. Because we have
concluded the evidence was relevant to disputed issues in the
charges against defendant, however, the premise of this
argument fails.
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supra, 60 Cal.4th at p. 407; People v. Lindberg (2008) 45 Cal.4th
1, 23 (Lindberg); Roldan, supra, 35 Cal.4th at pp. 705–706.)
Defendant did not concede his guilt on any issue, requiring the
prosecution to prove each element of first degree murder,
attempted murder, robbery, and burglary, along with the
enhancements and special circumstances. “Defendant’s
assertion that his defense to the . . . charges was bound to focus
upon identity, and not intent, would not eliminate the
prosecution’s burden to establish both intent and identity
beyond a reasonable doubt.” (Soper, supra, 45 Cal.4th at p. 777.)
Even when other evidence is present, it remains the
prosecution’s burden to prove premeditation and malice beyond
a reasonable doubt. It has the “right to introduce all relevant
and admissible evidence toward that end.” (Rogers, supra, 57
Cal.4th at p. 330.)13
The court also properly exercised its discretion under
Evidence Code section 352. (See Ewoldt, supra, 7 Cal.4th at
p. 404.) The Sacramento and Elm Street murders shared
numerous similarities. Defendant committed them less than
two weeks apart. The Sacramento evidence was highly
probative of defendant’s mental state in San Bernardino. (See
Rogers, supra, 57 Cal.4th at p. 331.) Nor was the evidence
unduly prejudicial. “As we have repeatedly explained: ‘ “In
applying section 352, ‘prejudicial’ is not synonymous with
‘damaging.’ ” ’ [Citation.] ‘ “ ‘[A]ll evidence which tends to prove
13
Defendant’s argument is also at odds with his trial
strategy. His lawyer gave no opening statement and offered no
guilt-phase evidence. His defense only became fully clear during
closing arguments, when counsel asserted there was insufficient
corroboration of the accomplices’ testimony to support a finding
of guilt beyond a reasonable doubt.
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guilt is prejudicial or damaging to the defendant’s case.’ ” ’
[Citation.] The ‘prejudice’ which section 352 seeks to avoid is
that which ‘ “ ‘uniquely tends to evoke an emotional bias against
the defendant as an individual and which has very little effect
on the issues.’ ” ’ ” (People v. Cage (2015) 62 Cal.4th 256, 275.)
The Sacramento crimes were less inflammatory than the
charged crimes, in that fewer people were killed and none were
children. Defendant complains that the volume of testimony
about the Sacramento crimes was disproportionate to its
relevance. He argues the evidence was merely cumulative
because the nature of the Elm Street shootings showed the
perpetrator’s intent and the jury did not need to find
premeditation to convict on first degree murder. But, as noted,
the issues of defendant’s intent and actions were not beyond
dispute, and additional evidence on these subjects was not
merely cumulative. (See People v. Scott (2015) 61 Cal.4th 363,
399; Foster, supra, 50 Cal.4th at p. 1331.)
Moreover, the extensive limiting instructions the court
read during testimony and before argument directed the jury
not to use the other crimes evidence for an improper purpose,
including bad character. “We presume the jury followed these
instructions.” (Lindberg, supra, 45 Cal.4th at p. 26.) The
prosecutor’s closing argument reinforced the instructions. He
explained at length that the Sacramento evidence was only
offered to show that defendant acted according to a common
scheme and with the intent to kill, and could not be used simply
to show that defendant was a bad person.
b Gang Membership
Defendant complains of evidence he belonged to a gang.
The evidence violated neither statutory nor constitutional law.
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i. Background
Defendant and Pan both moved to exclude evidence of
gang membership. The court denied the motion in a written
order, explaining: “This uncharged conspiracy, if proven, would
tend to establish Pan’s involvement in the crime, showing his
knowledge and intent in furnishing the gun, and it would be of
some value to the prosecution in establishing the necessary
specific intent by both defendants to commit the robbery and
burglary which resulted in the murders and which then may
tend to prove motive.” The court cautioned that the gang
evidence should be limited to that needed to explain the
relationship between the defendants, Pan’s conduct, and both
men’s intent and motive. It concluded the evidence would not
be unduly prejudicial under Evidence Code section 352 because,
even without direct evidence, the facts of the case “allude to and
strongly suggest the existence of a gang” and defendants’
relationship to it.
After an in limine hearing, the court allowed Sergeant
Frank to testify as an expert about the organization of Asian
gangs, including the Tiny Rascals, as well as their differences
from other types of gangs, their use of firearms, and their typical
practice of committing home invasion robberies. The prosecutor
was not permitted to ask hypotheticals that would elicit an
opinion about the Sacramento or Elm Street crimes. Nor could
he present evidence about Asian gangs’ attempts to intimidate
witnesses, unless it later became relevant to explain a witness’s
attitude or conduct.
Before Sergeant Frank testified, the court gave an
admonition agreed upon by the parties: “This witness . . . is
being called for a specific purpose and a very limited purpose.
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The law allows that some evidence occasionally may be admitted
for limited purposes only, and you will be admonished to
consider this evidence only for those limited purposes. This is
such evidence. You’re going to hear testimony concerning
activities which at first may sound strange to you and not
relevant to the case, but at some subsequent time I will
admonish you and explain to you why the evidence is relevant,
if it is, and why it has been admitted and the limited purpose for
which you may consider it.” Before closing arguments, the jury
was instructed: “Evidence has . . . been introduced that the
defendants are members of the Tiny Rascals Gang. Such
evidence, if believed, was not received and may not be
considered by you to prove that they are persons of bad
character or that they have a disposition to commit crimes.”
ii. Discussion
The People are generally entitled to introduce evidence of
a defendant’s gang affiliation and activity if it is relevant to the
charged offense. (People v. McKinnon (2011) 52 Cal.4th 610, 655
(McKinnon).) “Evidence of the defendant’s gang affiliation —
including evidence of the gang’s territory, membership, signs,
symbols, beliefs and practices, criminal enterprises, rivalries,
and the like — can help prove identity, motive, modus operandi,
specific intent, means of applying force or fear, or other issues
pertinent to guilt of the charged crime.” (People v. Hernandez
(2004) 33 Cal.4th 1040, 1049 (Hernandez).) Even when it is
relevant, however, “courts should carefully scrutinize evidence
of a defendant’s gang membership because such evidence
‘creates a risk the jury will improperly infer the defendant has
a criminal disposition and is therefore guilty of the offense
charged.’ ” (People v. Melendez (2016) 2 Cal.5th 1, 28–29; see
People v. Williams (1997) 16 Cal.4th 153, 193.) We review the
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trial court’s ruling for abuse of discretion. (Melendez, at p. 29;
People v. Carter (2003) 30 Cal.4th 1166, 1194 (Carter).)
Defendant first complains his gang affiliation was not
relevant to any disputed issue. As with the Sacramento
evidence, he contends his intent to kill was indisputable given
the manner of the shootings. He also argues, “The motive for
the crime here, financial gain, was apparent — and not gang
related.” However, these characterizations adopt an overly
narrow view of the disputed issues and the evidence relevant to
address them.
As noted, a not guilty plea disputes all elements of the
charged crimes. (See Bryant, Smith and Wheeler, supra, 60
Cal.4th at p. 407; Lindberg, supra, 45 Cal.4th at p. 23; Roldan,
supra, 35 Cal.4th at pp. 705–706.) Evidence of defendant’s gang
membership was relevant to show his relationship with the
accomplices who testified against him, to prove his identity as
one of the robbers. (See People v. Montes (2014) 58 Cal.4th 809,
859 (Montes).) It also tended to show his intent to steal and kill
if necessary. Sergeant Frank’s testimony helped illuminate
other evidence about the plan or scheme by which the crimes
were carried out. Frank explained that home invasion robberies
are a signature crime of Asian street gangs like TRG and are
typically committed against Asian families, such as the
Nguyens. The gangs frequently intimidate their victims by
threatening, harming, or even torturing the most vulnerable
family members, including children. This evidence helped
explain the significance of the nonfatal gunshot wound to
Dennis’s hand, the small knifepoint cuts to Henry’s neck, and
the toothpaste smeared on Trinh’s face. Because home invasion
robberies are complex crimes, gangs often assign specific roles
to different gang members. Frank also explained that Asian
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gangs particularly value firearms and use them only for
committing crimes. This testimony shed light on how the
robbery was conducted, including why only two guns were taken
to the house and why so many bullets had been fired from a
single weapon.
In addition, the evidence showed defendant was a shot
caller in TRG, which meant he had enough standing in the gang
to give direction to junior members. This evidence, combined
with Frank’s testimony that Asian gangs promote leaders based
on their criminal experience, was relevant to defendant’s motive
to rob and his intent to kill while doing so. Defendant’s
argument that financial gain was the sole motive for the robbery
ignores evidence that committing the crimes would have
enhanced his gang status. Moreover, defendant’s sole focus on
the robbery is too narrow. Intent to kill was a disputed issue for
the murder charges and special circumstances. While not itself
an element of the crimes, motive can illuminate intent. (See,
e.g., Carter, supra, 30 Cal.4th at p. 1195.) “ ‘ “[B]ecause a motive
is ordinarily the incentive for criminal behavior, its probative
value generally exceeds its prejudicial effect, and wide latitude
is permitted in admitting evidence of its existence.” ’ ”
(McKinnon, supra, 52 Cal.4th at p. 655.)
Defendant next argues that even if evidence of his gang
membership was relevant, the gang expert’s testimony should
have been excluded because it was overbroad, inflammatory,
and unduly prejudicial. He complains that the testimony
pertained to Asian gangs generally, rather than TRG in
particular. But Frank testified in detail about TRG’s history
and organization. He also described the age and gender of
members, the meaning of TRG’s name, and the significance of
TRG tattoos. Defendant was free to highlight any
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overgeneralizations on cross-examination and did so at length.
During defendant’s cross-examination, Frank conceded there
are many Asian cultures and some differ markedly. In response
to Pan’s questioning, Frank also explained that, while many
Asian gangs are no longer ethnically separated, gangs of
different ethnicities can have distinct structures. For example,
age determines leadership in Korean gangs, whereas experience
is more important in Vietnamese and Cambodian gangs.
Defendant’s primary objection, however, concerns expert
testimony about victim intimidation. Frank testified that Asian
street gang members had “universally” told him their primary
compliance tactic was “to go after the children in front of their
parents.” He explained, the “younger the child . . . , the more
coercive they feel that can be with the parents. And so it’s not
at all uncommon to start with either the very youngest or the
very oldest member of the household.” Frank described three
incidents: “We’ve had a two-year-old hung . . . by his ankles out
of a second story window”; “another case where a one-year-old
child was picked up and his head repeatedly dunked in the
toilet”; and a third instance in which “a pan of boiling water . . .
was poured over a 79-year-old grandmother.” Defendant argues
these examples were irrelevant and needlessly inflammatory.
However, this testimony was relevant to explain the nonfatal
wounds on the Elm Street victims, as well as the nonfatal
gunshot wound inflicted upon Quyen Luu in Sacramento. It
illuminated the gang’s modus operandi and explained the
motive for the nonfatal gunshots, knife cuts, and toothpaste
smeared on Trinh Tran’s face. Although distressing, the
examples directly showed the perpetrators’ desire to cause
distress in pursuit of their aims. Testimony about them was
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brief and unelaborated and was not more inflammatory than the
torture and murders of the Nguyen family.
Nor was the probative value of the gang evidence
substantially outweighed by the risk of undue prejudice. “ ‘The
admission of gang evidence over an Evidence Code section 352
objection will not be disturbed on appeal unless the trial court’s
decision exceeds the bounds of reason.’ ” (Montes, supra, 58
Cal.4th at p. 859.) The court here carefully weighed the
probative value of the evidence against the potential for undue
prejudice. It took steps to minimize the subject areas of expert
testimony and instructed that the evidence could not be used as
proof of defendant’s character.
Defendant complains the limiting instructions were
inadequate because the court never explained what purpose the
gang evidence could be used for, even though its first
admonishment said an explanation would later be provided. If
defendant believed a more extensive instruction was needed, it
was his burden to request one. (See People v. Powell (2018) 6
Cal.5th 136, 161; Hernandez, supra, 33 Cal.4th at p. 1052.)
During trial, the court invited counsel to propose instructions on
the issue. Indeed, the record suggests that the closing
instruction on gang evidence was offered by the defense.14 It
described the prohibited uses of the evidence but refrained,
possibly for tactical reasons (see Hernandez, at p. 1053), from
14
The court stated: “Special instructions have been offered
by the defense, and one is . . . instruction number 2.50a
regarding the fact that evidence has been offered concerning the
fact that the defendants are members of the Tiny Rascal[s]
Gang, and this should not be used as any consideration by the
jury that they’re bad persons or of bad character or that they
have a disposition to commit crime[s].”
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Opinion of the Court by Corrigan, J.
spelling out exactly how the evidence could be used. Having
proposed the instruction at issue, and raised no objection,
defendant cannot now complain it was inadequate. His reliance
on U.S. v. Jobson (6th Cir. 1996) 102 F.3d 214 is also unavailing.
Jobson requested a limiting instruction on gang evidence but the
district court declined to give it, instructing the jury instead that
the evidence had been admitted for a limited purpose without
ever saying what the purpose was or that using the evidence as
proof of bad character or a criminal disposition was prohibited.
(Id. at p. 222.) The case is not precedentially binding on this
court and is factually distinguishable.15
2. Witness Support Persons
Witness support persons were present in court during
some testimony. Defendant complains that the court failed to
follow required statutory procedures and that this practice
violated his confrontation and due process rights. There was no
prejudicial error.
a. Background
An employee of the District Attorney’s office accompanied
Lilah Garcia to the witness stand.16 Garcia was a neighbor who
found the Nguyens’ bodies and comforted Dennis. When
defendant objected in chambers, the prosecutor made an offer of
proof that Garcia was “terrified to be here,” “very afraid of these
defendants,” and had asked that a support person sit with her.
15
Although no error occurred here, an instruction explaining
the limited purpose for which gang evidence has been admitted,
such as CALCRIM No. 1403, is generally advisable.
16
The same support person had previously joined Mei Le
and Amie Le during their testimony at an Evidence Code
section 402 hearing.
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Opinion of the Court by Corrigan, J.
Defendant’s attorney requested a hearing on whether the
support person was requested and necessary. The court
accepted the prosecutor’s offer and found that the need for a
support person had been adequately established. The employee
was placed in a seat “substantially behind the witness” and
ordered to remove a badge showing her association with the
District Attorney’s office. The court stated that the jury would
be given “no indication as to who she is, why she’s there or
anything else, other than she’s just simply there.” The next day,
defense counsel observed that, in addition to accompanying
Garcia at the witness stand, the person also sat in the front row
of the audience section during testimony from another
witness.17 He asked that the court admonish any future support
persons not to prompt or interfere with the testifying witness.
(See § 868.5, subd. (b).)
Later in trial, the prosecutor advised the court and counsel
that Mei Le and Amie Le, the daughters of the Sacramento
victims, requested a support person during their testimony.
This time defense counsel requested an admonition not to the
support person but to the jury, explaining “that she is an
employee of the D.A.’s office and a witness advocate.” The court
stated it would “simply tell the jury that . . . the witness[] has
requested that there be a person in the courtroom pending her
testimony to act as liaison support and that this individual is in
that capacity.” Defense counsel responded, “Uh-huh,” which
was apparently understood as assent. When Mei was called the
following day, the court stated: “Ladies and gentlemen, you will
17
Although counsel did not name the witness, his
description of her as a Hispanic woman suggests it was Graciela
Elias, another neighbor who testified immediately after Garcia.
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PEOPLE v. CHHOUN
Opinion of the Court by Corrigan, J.
notice that there is a young lady sitting behind the witness.
[¶] The law allows that a witness under certain circumstances
can request the presence of someone to merely be there for moral
support. That individual is not to in any way confer with,
attempt to influence, or be involved at all in the testimony. Just
the mere presence is allowed and for the assurance that the
witness may have by that individual being here. So please
understand that is why this other person is seated behind the
witness.” The admonition was not repeated before Amie’s
testimony.
Finally, defendant’s counsel objected to the presence of a
support person during Karol Tran’s testimony. Shirley Amador,
the wife of Karol’s attorney Robert Amador, sat inside the
railing behind the District Attorney’s table. Counsel argued
Shirley was a potential witness because she had helped secure
a reduction in the charges against Karol. The prosecutor
disputed this characterization, noting Shirley was not on his
witness list and the defendants had indicated they would not
call any witnesses. He observed that Karol had a right to have
her attorney present but he was in trial elsewhere. In his place,
Shirley was there “just to be moral support” for Karol. He
stressed that she was sitting “out in the audience” and not at
the witness stand. The court overruled the objection.
During Karol’s cross-examination, defendant’s attorney
interjected to complain that Shirley was signaling or coaching
the witness. Pan’s attorney called for a recess, and both defense
attorneys conferred with Robert Amador, who had entered the
courtroom at some point during the testimony. Pan’s attorney
then explained that Karol “wasn’t talking to Shirley. She was
motioning to Mr. Amador,” her attorney. One of defendant’s
attorneys stated he had seen Shirley’s lips moving while looking
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PEOPLE v. CHHOUN
Opinion of the Court by Corrigan, J.
at the preliminary hearing transcript, which at the time was
being used to impeach Karol, but “we all believe it was
inadvertent.” Defendant’s other attorney added, “And it
appears in this last exchange that she was not conversing with
the witness. The witness was attempting to converse with her
and she was warning her off.” The prosecutor suggested it
would be better to have Shirley sit elsewhere, but the record
does not indicate whether that happened.
b. Discussion
Under section 868.5, subdivision (a), prosecuting
witnesses in a murder case are entitled to the attendance of up
to two support persons during their preliminary hearing and
trial testimony. One person may also accompany the witness at
the witness stand. (§ 868.5, subd. (a).) Section 868.5,
subdivision (b) requires additional procedures in some
circumstances. If the support person is also to be called as a
witness, the prosecution must present evidence that the support
person’s attendance is desired and will be helpful to the
prosecuting witness. (§ 868.5, subd. (b).) The judge must also
“admonish the support person or persons to not prompt, sway,
or influence the witness in any way.” (Ibid.)
Defendant contends the court did not follow these required
procedures because it failed to conduct an evidence-based “need
assessment” or “give the required admonition” each time a
support person appeared. The first argument lacks support in
the statute. On its face, section 868.5, subdivision (b) requires
an assessment of need only when the chosen support person is
also to be a witness in the case. That circumstance was not
present here. The second argument presents a closer question.
Although the subdivision is prefaced with the phrase “[i]f the
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PEOPLE v. CHHOUN
Opinion of the Court by Corrigan, J.
person or persons so chosen are also witnesses,” which would
seem to limit its application to this specific context, a later
sentence addressing admonitions provides that “[i]n all cases,
the judge shall admonish the support person or persons to not
prompt, sway, or influence the witness in any way.”18 (§ 868.5,
subd. (b).) It is unclear whether the admonition requirement is
intended to apply in all cases or in all cases involving a support
person who will also be a witness, and the Courts of Appeal have
reached different conclusions. (Compare People v. Valenti
(2016) 243 Cal.App.4th 1140, 1169–1171 (Valenti) with People
v. Spence (2012) 212 Cal.App.4th 478, 513 (Spence).) We need
not decide this question because there is no evidence that a
support person prompted, swayed, or influenced the witnesses
in any way. Accordingly, any error in failing to admonish the
18
The full text of the subdivision states: “If the person or
persons so chosen are also witnesses, the prosecution shall
present evidence that the person’s attendance is both desired by
the prosecuting witness for support and will be helpful to the
prosecuting witness. Upon that showing, the court shall grant
the request unless information presented by the defendant or
noticed by the court establishes that the support person’s
attendance during the testimony of the prosecuting witness
would pose a substantial risk of influencing or affecting the
content of that testimony. In the case of a juvenile court
proceeding, the judge shall inform the support person or persons
that juvenile court proceedings are confidential and may not be
discussed with anyone not in attendance at the proceedings. In
all cases, the judge shall admonish the support person or
persons to not prompt, sway, or influence the witness in any
way. Nothing in this section shall preclude a court from
exercising its discretion to remove a person from the courtroom
whom it believes is prompting, swaying, or influencing the
witness.” (Pen. Code, § 868.5, subd. (b), italics added.)
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PEOPLE v. CHHOUN
Opinion of the Court by Corrigan, J.
support persons was harmless. (See People v. Watson (1956) 46
Cal.2d 818, 837.)
Despite the lack of statutory support, defendant argues a
case-specific, evidence-based showing of need for support
persons is required under the federal Constitution. He asserts
the procedure here infringed his Sixth Amendment
confrontation rights and was not justified by a compelling state
interest, given that the witnesses were not children or sexual
abuse victims who would be particularly susceptible to
psychological harm. Case law is to the contrary. (See People v.
Ybarra (2008) 166 Cal.App.4th 1069, 1077; People v. Adams
(1993) 19 Cal.App.4th 412, 435–437 (Adams).) Concerns about
improper vouching are also unfounded because the mere
“ ‘presence of a second person at the stand does not require the
jury to infer that the support person believes and endorses the
witness’s testimony, so it does not necessarily bolster the
witness’s testimony.’ ” (People v. Stevens (2009) 47 Cal.4th 625,
641, quoting Adams, at p. 437.) “Absent improper interference
by the support person, . . . no decision supports the proposition
that defendant advances here, that the support person’s mere
presence infringes his due process and confrontation clause
rights.” (People v. Myles (2012) 53 Cal.4th 1181, 1214 (Myles);
see Valenti, supra, 243 Cal.App.4th at p. 1171; Spence, supra,
212 Cal.App.4th at p. 514.)
Defendant contends a different result is compelled by
Maryland v. Craig (1990) 497 U.S. 836 (Craig) and Coy v. Iowa
(1988) 487 U.S. 1012, but the procedures employed in those
cases placed significant burdens on confrontation that were not
present here. In Coy, a large screen was placed between the
defendant and the witness stand, blocking the defendant’s view.
(Coy, at pp. 1014–1015.) Because this tactic prevented a face-
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PEOPLE v. CHHOUN
Opinion of the Court by Corrigan, J.
to-face encounter, it violated the confrontation clause. (Id. at
pp. 1016–1020.) In Craig, a child witness was allowed to testify
by one-way closed-circuit television. (Craig, at p. 840.) The
court held the confrontation clause does not categorically
prohibit such a procedure, and a witness may testify outside the
defendant’s presence if the alternative arrangement is justified
by a compelling state interest and a case-specific finding of need.
(Id. at pp. 849, 852, 855–856.) These holdings concerned
procedures that deny face-to-face confrontation with an accuser,
a core concern of the confrontation clause. The use of a support
person does not do so. We agree with the Courts of Appeal that
have concluded the support person procedure does not require
the same constitutional scrutiny. (See People v. Andrade (2015)
238 Cal.App.4th 1274, 1298 (Andrade); People v. Chenault
(2014) 227 Cal.App.4th 1503, 1516 (Chenault); People v. Johns
(1997) 56 Cal.App.4th 550, 554 (Johns); People v. Lord (1994) 30
Cal.App.4th 1718, 1722 (Lord); People v. Patten (1992) 9
Cal.App.4th 1718, 1727.)
Nevertheless, relying on Adams, supra, 19 Cal.App.4th
412, defendant argues his confrontation rights were infringed
because the presence of witness support persons interfered with
the jury’s observation of testifying witnesses’ demeanor. In
Craig, the high court described four key components of the
confrontation right: “(1) the face-to-face confrontation, (2) the
oath, (3) the cross-examination, and (4) the jury’s observation of
the witness’s demeanor.” (Johns, supra, 56 Cal.App.4th at
p. 554, citing Craig, supra, 497 U.S. at p. 846.) The Court of
Appeal in Adams asserted the use of support persons implicates
the fourth component, jury observation of witness demeanor,
because a support person’s presence changes “the dynamics of
the testimonial experience for the witness” and thus alters the
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Opinion of the Court by Corrigan, J.
witness’s demeanor. (Adams, at p. 438.) Notably, the Adams
comments were made within a peculiar factual context. The
defense claimed the victim had falsely reported a sexual assault
because she feared the wrath of her abusive father. The father
was a trial witness and also appeared as her support person.
(Id. at pp. 424, 434–435.) This situation posed an unusual risk
that the support person’s mere presence might exert improper
influence on the witness during her testimony. To the extent
Adams implied a broader holding, requiring a compelling state
interest and necessity showing in other contexts, courts have
disagreed with it. (See Andrade, supra, 238 Cal.App.4th at
p. 1298; Chenault, supra, 227 Cal.App.4th at p. 1516; Johns, at
p. 554; Lord, supra, 30 Cal.App.4th at pp. 1721–1722; see also
Valenti, supra, 243 Cal.App.4th at pp. 1171–1172; Spence,
supra, 212 Cal.App.4th at pp. 517–518.) We do as well. A
support person’s mere presence in the courtroom or at the
witness stand does not infringe the defendant’s due process or
confrontation rights unless there is evidence of improper
interference by the support person. (Myles, supra, 53 Cal.4th at
p. 1214.)
Aware of our precedent, defendant claims support persons
“improperly insinuated themselves into the trial” on two
occasions. First, he notes that Garcia’s support person stood
between Garcia and the jury, blocking the jury’s view, and wore
a badge that disclosed her employment. Defendant appears to
challenge the support person’s positioning as a confrontation
clause violation and her badge as an instance of prosecutorial
vouching in violation of the due process clause. We need not
consider these arguments based on the record here. Defense
counsel objected immediately after Garcia was seated and gave
her name. Following a chambers conference, the court ordered
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PEOPLE v. CHHOUN
Opinion of the Court by Corrigan, J.
that the support person be moved to a seat “substantially
behind” Garcia to ensure the jury’s view would be unimpeded.
It also ordered that the support person’s employment badge be
removed. The badge was not on display when Garcia was
testifying. If the badge had been visible when the support
person entered the courtroom, this indication of employment
was not an invocation of the office’s prestige or reputation
implicating vouching concerns. (See People v. Rodriguez (2020)
9 Cal.5th 474, 480.) Indeed, before Mei Le testified, defendant’s
attorney asked that the jury be told the support person was an
employee of the District Attorney’s office. Defendant cannot
complain of prejudice if a briefly worn badge indicated the
information he sought revealed.
Defendant also asserts Karol Tran’s support person was
inappropriately signaling to the witness during her testimony,
but the record belies this assertion. Although defense counsel
originally believed Shirley Amador was communicating with
Karol, he later clarified that she was not doing so. Instead,
“[t]he witness was attempting to converse with her and she was
warning her off.” (Italics added.) Shirley’s lips had been moving
while she looked at the transcript, but defense counsel assured
the court that he considered the movement “inadvertent” and
not an attempt to communicate with Karol. Defendant thus
abandoned his objections below, and the record fails to
demonstrate any improper interference.
Finally, there is no indication of prejudice. At defendant’s
request, the court admonished the jury that the law entitles
witnesses to have someone with them for moral support and that
support persons may not interfere with the witness’s testimony.
(See Myles, supra, 53 Cal.4th at p. 1215.) Although defendant
now complains that the admonition was not repeated each time
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PEOPLE v. CHHOUN
Opinion of the Court by Corrigan, J.
a witness used a support person, he did not object on this ground
below. Indeed, for tactical reasons, defense counsel may have
wished to avoid drawing attention to the support person’s
presence by repeated admonitions. The court also told the jury
to decide the case based on the evidence and not be influenced
by sentiment or sympathy. (CALJIC No. 1.00.) To the extent
defendant now claims this instruction was insufficient, it was
his burden to propose amended or additional instructions. He
did not do so.
3. Instructional Error Claims
Although he raised no objection below, defendant now
argues several of the standard guilt phase instructions violated
his constitutional rights. As he recognizes, we have rejected
these claims many times before. We affirm these holdings.
a. First Degree Murder Instructions
Defendant first argues the court lacked jurisdiction to try
him for first degree murder because the information charged
murder under section 187, which he contends defines only
second degree malice murder. He claims his convictions for an
uncharged crime violated his rights to due process, a jury trial,
and a fair and reliable capital guilt trial. (U.S. Const., 6th, 8th
& 14th Amends.; Cal. Const., art. I, §§ 7, 15–17.) “Similar
claims — whether framed in terms of a lack of jurisdiction,
inadequate notice, erroneous instruction, insufficient proof, or
the absence of jury unanimity — have been rejected before. . . .
[O]ur cases have long made clear that an accusatory pleading
charging malice murder supports conviction of first degree
murder,” whether on a felony-murder or premeditation theory.
(People v. Contreras (2013) 58 Cal.4th 123, 147 (Contreras); see
People v. Sattiewhite (2014) 59 Cal.4th 446, 474 (Sattiewhite);
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PEOPLE v. CHHOUN
Opinion of the Court by Corrigan, J.
People v. Friend (2009) 47 Cal.4th 1, 54 (Friend).) “Malice
murder and felony murder are two forms of the single statutory
offense of murder. Thus, a charge of murder not specifying the
degree is sufficient to charge murder in any degree. The
information also need not specify the theory of murder on which
the prosecution relies at trial.” (Contreras, at p. 147; see People
v. Hughes (2002) 27 Cal.4th 287, 369–370 (Hughes); see also
People v. Witt (1915) 170 Cal. 104, 107–108.)
Nevertheless, defendant argues these principles were
“completely undermined” by People v. Dillon (1983) 34 Cal.3d
441, which described section 189 as “a statutory enactment of
the first degree felony-murder rule in California.” (Id. at p. 472.)
This argument fails. “Because there is only a single statutory
offense of first degree murder [citation], defendant reasons that
the relevant statute must be section 189, not section 187, which
he construes as a definition of second degree murder. Defendant
misreads both Dillon and the statutes. Dillon made it clear that
section 187 serves both a degree-fixing function and the function
of establishing the offense of first degree felony murder. (Dillon,
at pp. 468, 471.) It defines second degree murder as well as first
degree murder. Section 187 also includes both degrees of
murder in a more general formulation. (People v. Witt[, supra,]
170 Cal. [at p.] 108.) Thus, an information charging murder in
the terms of section 187 is ‘sufficient to charge murder in any
degree.’ ” (People v. Harris (2008) 43 Cal.4th 1269, 1294–1295,
fn. omitted (Harris).) We have reaffirmed this rule many times
following our decision in Dillon (see, e.g., Contreras, supra, 58
Cal.4th at p. 148; People v. Jones (2013) 57 Cal.4th 899, 968–969
(Jones); Hughes, supra, 27 Cal.4th at pp. 369–370), and do so
again.
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Opinion of the Court by Corrigan, J.
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi)
does not compel a different result. As we have previously noted,
“the Apprendi court expressly declined to address the
constitutional implications, if any, of omitting sentencing
factors from accusatory pleadings. (Apprendi, [at p.] 477, fn. 3
[noting that no ‘indictment question’ was properly presented or
actually addressed in the case].)” (Contreras, supra, 58 Cal.4th
at p. 148.) Moreover, because Apprendi and its progeny address
the right to a jury determination of sentencing facts beyond the
elements of the charged offenses, the cases “do not create new
notice requirements for alternative theories of a substantive
offense such as a theory of first degree murder.” (People v. Abel
(2012) 53 Cal.4th 891, 938.) We continue to hold that the
traditional California rule, under which a section 187 charge
“places the defense on notice of, and allows trial and conviction
on, all degrees and theories of murder,” does not violate
Apprendi or the Sixth Amendment. (Contreras, at p. 149.)
b. Failure to Require Unanimity on First Degree
Murder Theory
The jury was instructed on the alternative theories of
premeditation and felony murder. Defendant now claims the
court violated his rights under the Sixth, Eighth, and
Fourteenth Amendments by failing to instruct that the jury
must unanimously agree on a single theory of first degree
murder in order to convict him. Again, as defendant
acknowledges, this claim has been repeatedly rejected. (See,
e.g., Jones, supra, 57 Cal.4th at p. 973; People v. Taylor (2010)
48 Cal.4th 574, 626; People v. Nakahara (2003) 30 Cal.4th 705,
712 (Nakahara).) “ ‘[A]s long as each juror is convinced beyond
a reasonable doubt that defendant is guilty of murder as that
offense is defined by statute, it need not decide unanimously by
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PEOPLE v. CHHOUN
Opinion of the Court by Corrigan, J.
which theory he is guilty.’ ” (Rogers, supra, 57 Cal.4th at p. 339.)
Neither the federal Constitution (see Schad v. Arizona (1991)
501 U.S. 624, 640–642; Harris, supra, 43 Cal.4th at pp. 1295–
1296) nor the Apprendi decision (see People v. Tully (2012) 54
Cal.4th 952, 1023–1024; Nakahara, at pp. 712–713) requires
otherwise. We decline to reconsider this settled precedent.
Further, given the special circumstance findings here, the jury
necessarily reached unanimous agreement that defendant
committed first degree felony murder in the course of a robbery
and burglary. (See Taylor, at p. 626; Harris, at p. 1296.)
c. Juror Misconduct Instruction
Although he did not object below, defendant now claims
the court erred in giving CALJIC former No. 17.41.1, which
instructed, “The integrity of a trial requires that jurors, at all
times during their deliberations, conduct themselves as
required by these instructions. Accordingly, should it occur that
any juror refuses to deliberate or expresses an intention to
disregard the law or to decide the case based on penalty or
punishment or any other improper basis, it is the obligation of
the other jurors to immediately advise the Court of the
situation.” After defendant’s trial, we exercised our supervisory
power in People v. Engelman (2002) 28 Cal.4th 436 to disapprove
the use of this instruction in future criminal trials. We also
concluded the instruction does not violate a defendant’s state or
federal constitutional rights to a jury trial, a unanimous verdict,
or due process. (Id. at pp. 439–440.) Defendant argues the
concerns addressed in Engelman have greater force in capital
trials, but we have repeatedly rejected calls to depart from
Engelman’s constitutional holdings in capital cases. (See, e.g.,
People v. Johnson (2018) 6 Cal.5th 541, 591–592 (Johnson);
People v. Penunuri (2018) 5 Cal.5th 126, 157–158; Rogers, supra,
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Opinion of the Court by Corrigan, J.
57 Cal.4th at pp. 339–340; McKinnon, supra, 52 Cal.4th at
p. 681.) The instruction did not violate defendant’s
constitutional rights and does not require reversal.
d. CALJIC Instructions Regarding Evaluation of
Evidence
Defendant also claims a series of pattern instructions
undermined the state’s burden to prove guilt beyond a
reasonable doubt. He first challenges instructions addressing
the use of circumstantial evidence to prove guilt (CALJIC
No. 2.01), mental state (CALJIC Nos. 2.02, 8.83.1), and special
circumstances (CALJIC No. 8.83). He argues these instructions
required the jury to accept or draw incriminatory inferences if
they appeared reasonable. We will not revisit settled law here.
(See, e.g., Johnson, supra, 6 Cal.5th at p. 592; Harris, supra, 43
Cal.4th at p. 1294; Nakahara, supra, 30 Cal.4th at pp. 713–714.)
We reaffirm that “[t]he circumstantial evidence instructions did
not permit, induce, or compel jurors to convict defendant or to
sustain the special circumstance merely because he reasonably
appeared to have committed the charged crimes. [Citations.]
Nor would the jury, when considering the circumstantial
evidence instructions alongside the reasonable doubt
instruction, somehow still have been misled about the requisite
standard of proof.” (Contreras, supra, 58 Cal.4th at pp. 161–
162.)
Defendant next objects to a series of instructions on the
jury’s evaluation of witness testimony and the weight of
evidence: CALJIC No. 2.21.1 (discrepancies in witness
testimony); CALJIC No. 2.21.2 (witnesses willfully false);
CALJIC No. 2.22 (conflicting testimony); CALJIC No. 2.27
(sufficiency of single witness); and CALJIC No. 8.20 (finding
deliberate and premeditated murder). Defendant argues these
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Opinion of the Court by Corrigan, J.
instructions diluted the state’s burden of proof because they
encouraged the jury to decide issues based on which side had the
stronger evidence. We have rejected these claims before (see,
e.g., McKinnon, supra, 52 Cal.4th at pp. 677–678; Friend,
supra, 47 Cal.4th at p. 53; Nakahara, supra, 30 Cal.4th at
p. 714), and defendant does not persuade us to do otherwise
here. “ ‘ “Jurors are not reasonably likely to draw, from bits of
language in instructions that focus on how particular types of
evidence are to be assessed and weighed, a conclusion overriding
the direction, often repeated in voir dire, instruction, and
argument, that they may convict only if they find the People
have proven guilt beyond a reasonable doubt.” ’ ([People v.]
McKinzie[ (2012)] 54 Cal.4th 1302, 1356–1357.) No reasonable
juror would have ‘parsed’ these instructions and believed that
the People had some lesser burden of proof.” (Contreras, supra,
58 Cal.4th at p. 162.) Nothing in the prosecutor’s closing
argument calls for a different conclusion.
Finally, defendant contends CALJIC No. 2.51 improperly
allowed the jury to determine guilt based on the existence of
motive alone, lessening the state’s burden of proof. The
instruction simply provides that motive, while not an element of
a crime, is a circumstance the jury may consider in determining
guilt. We have consistently rejected defendant’s precise claims
of error (see, e.g., Sattiewhite, supra, 59 Cal.4th at p. 474; Jones,
supra, 57 Cal.4th at p. 971; People v. Snow (2003) 30 Cal.4th 43,
97–98) and now reaffirm those holdings.
B. Penalty Phase Issues
1. Admission of Hearsay
Defendant argues the court improperly admitted hearsay
implicating him in the Spokane murders. He contends this error
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Opinion of the Court by Corrigan, J.
violated his rights to due process, confrontation, and a reliable
penalty verdict. Any error in admitting the evidence was
harmless.
a. Background
During the prosecutor’s questioning, defendant’s
girlfriend Onkhamdy testified that defendant and Giao Ly left
the Spokane apartment where they were staying and later
returned with money and jewelry. As Onkhamdy lay on a couch
facing away from them, she heard defendant, Ly, and one or two
other men dividing money. The prosecutor asked if she heard
“any conversation among them regarding a murder,” but
Onkhamdy replied that all of the men were speaking
Cambodian, a language she did not understand. Questioned
further, Onkhamdy denied telling the investigating officers
something different. The prosecutor tried to impeach her with
notes from her police interview, in which she said she “knew
from the conversation that the subjects had committed a
murder.” Defense counsel objected. He noted that defendant’s
remarks might be admissible as statements of a party if
Onkhamdy could testify that defendant had made the
statement. But instead three or four people were talking “and
we don’t know who said what.” The court overruled the objection
as premature and allowed the prosecutor to ask if Onkhamdy
had told detectives she overheard a discussion about murder
and it made her “nauseous to know what had occurred.”
Onkhamdy said she told the police she felt ill due to her
pregnancy and denied saying anything about people discussing
murder.
The prosecution then called Detective David Dillon, who
was present during Onkhamdy’s interview. Dillon testified that
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Onkhamdy reported hearing defendant and the others
discussing a murder, though she did not say who had mentioned
murder or in what language. The court overruled defendant’s
hearsay objection and denied his motion for mistrial, concluding
the evidence was admissible as an adoptive admission.
b. Discussion
Hearsay is “evidence of a statement that was made other
than by a witness while testifying at the hearing and that is
offered to prove the truth of the matter stated.” (Evid. Code,
§ 1200, subd. (a).) Hearsay is inadmissible unless some
exception to the hearsay rule is satisfied. (Id., subd. (b).) “[A]
trial court has broad discretion to determine whether a party
has established the foundational requirements for a hearsay
exception.” (People v. DeHoyos (2013) 57 Cal.4th 79, 132.)
The challenged testimony involved two layers of hearsay:
(1) Onkhamdy’s statement to police; and (2) the underlying
statement about “murder” in the conversation she described.
Onkhamdy’s statement was admissible as a prior inconsistent
statement. A statement inconsistent with a witness’s trial
testimony “is not made inadmissible by the hearsay rule” (Evid.
Code, § 1235) so long as the witness either had “an opportunity
to explain or to deny the statement” while testifying or has not
been excused from giving further testimony (Evid. Code, § 770,
subd. (a)). These requirements were satisfied. Onkhamdy gave
inconsistent testimony, and she was given an opportunity to
explain her prior statement when she did so. Prior inconsistent
statements admitted under Evidence Code section 1235 may be
considered for their truth as well as for impeachment. (People
v. Homick (2012) 55 Cal.4th 816, 859; People v. Guerra (2006) 37
Cal.4th 1067, 1144, disapproved on another ground in People v.
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Rundle (2008) 43 Cal.4th 76, 151.)19 Accordingly, Onkhamdy’s
statement to police was properly admitted without limitation.
Whether the underlying hearsay from the overheard
conversation was properly allowed is difficult to discern because
details about the conversation are so vague. All we know is that
the topic of murder arose. Without any information about what
was said or by whom, it is unclear whether the foundational
requirements were satisfied for the adoptive admission
exception. (See Evid. Code, § 1221.) However, any error in
admitting the testimony was clearly harmless. Strong evidence
tied defendant to the Spokane murders. The only survivor, four-
year-old Joe Hagan, unequivocally identified defendant as one
of the perpetrators shortly after the crime, and defendant’s
fingerprint was found inside the Hagans’ apartment. Evans
recalled seeing a gun at defendant’s house of the same caliber
used in the shootings. Both Onkhamdy and Kunthea Sar
testified that defendant and Ly went out on the night of the
murders and returned with cash and jewelry, some of which was
later identified as belonging to the victims. In contrast to this
evidence, vague hearsay about defendant’s participation in a
conversation held in a language the witness did not understand
19
People v. Montiel (1993) 5 Cal.4th 877, 929, disapproved
on another ground in People v. Sanchez (2016) 63 Cal.4th 665,
686, footnote 13, suggested that a prior inconsistent statement,
standing alone, is legally insufficient to establish aggravating
conduct in the penalty phase of a capital trial. However, that
idea was based on a holding in People v. Gould (1960) 54 Cal.2d
621, 631, that we have since overruled. (People v. Cuevas (1995)
12 Cal.4th 252, 257.) We need not decide whether Montiel’s
observations have continuing vitality because significant
evidence beyond Onkhamdy’s statement implicated defendant
in the Spokane crimes.
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was unlikely to have influenced the jury’s decision. Moreover,
the prosecutor never mentioned the “murder” conversation in
closing argument. And there was significant aggravating
evidence apart from the Spokane crimes, including defendant’s
involvement in two fatal drive-by shootings. The jury was also
entitled to consider the grim facts of the charged offenses and
the Sacramento murders. Considering the quantity and quality
of the aggravating evidence, it is not reasonably possible the
jury would have reached a different penalty verdict absent any
asserted error. (See People v. Pearson (2013) 56 Cal.4th 393,
472.)
2. Exclusion of Scrappy’s Inculpatory Statements
Defendant attempted to call “Scrappy” Tran to testify
about his role in the Elm Street crimes. On counsel’s advice,
Scrappy refused to testify. Defendant then sought to introduce
out-of-court statements in which Scrappy claimed he had killed
Trinh and the three Nguyen children. The court excluded the
evidence as insufficiently reliable to satisfy the hearsay
exception for statements against interest. (Evid. Code, § 1230.)
Defendant claims error under state and federal law, asserting
violations of his constitutional rights to present mitigating
evidence, obtain a fair trial, and have a reliable penalty
determination. Although we agree with the trial court that the
issue is close, we conclude the ruling was an appropriate
exercise of discretion.
a. Background
Scrappy was a minor at the time of the Elm Street crimes.
He pled guilty to 10 counts in exchange for a sentence of 50 years
to life imprisonment. A defense investigator interviewed him at
Folsom State Prison during the guilt phase of defendant’s trial.
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The interview was taped, but Scrappy asked for the recorder to
be turned off before discussing the Elm Street murders. Scrappy
then said that after “the man” was shot, “he lost it or went crazy,
shot the woman, [then] ran into the bedrooms and shot the
children.” He gave no further details about the shootings and
did not indicate that he had been the one to shoot “the man.” He
told the investigator he was willing to testify in defendant’s trial
because he had become a Christian, felt responsible for the
murders, and did not want defendant to be blamed for them all.
However, he worried how other inmates would treat him if he
admitted killing a woman and children. He also worried that he
would incur new charges from an unrelated shooting.
A second defense investigator interviewed Scrappy shortly
before the penalty trial. Scrappy again declined to be taped. He
described the planning and entry into the Nguyen home in a
manner similar to the guilt phase testimony of Evans and Karol.
Inside the house, the father argued with defendant, whom the
investigator called “Peter.” According to the investigator’s
notes, Scrappy said: “The next thing I see is Peter acting weird.
I hear a shot and Peter is standing over the father looking weird.
Then I go crazy and start shooting the family. Quote: I killed
the mother and the kids. I don’t know why. I just went crazy.
It’s all fog.” When pressed for more details, he shook his head
and repeated, “I was in a fog.”
Scrappy’s appointed counsel advised him not to testify.
Although Scrappy was serving a very long sentence, his trial
attorney thought “there might be . . . a glimmer” of hope that he
could obtain parole in 40 years, and an admission to killing
children could “doom” his chances. He was also subject to
prosecution for an additional uncharged murder. Fourteen-
year-old Trang Vu’s murder was initially charged against
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defendant, but the prosecution dismissed it at the close of the
penalty phase. Those accusations were not included in
Scrappy’s plea agreement.
Defendant attempted to introduce Scrappy’s statements
as declarations against penal interest. However, the court
determined the foundation for that exception was not satisfied.
The court observed Scrappy was “a proven liar” with no
credibility. His current assertions were “completely contrary” to
his previous statements to the police and investigators.
Although he might have been motivated to clear his conscience
by telling the truth, he might also have wanted to gain favor
with fellow gang members by making up a story to exonerate
their associate “from some very serious acts.” The court also
questioned whether the statements were truly against penal
interest, given that Scrappy had pled guilty to all the murders,
received a lengthy sentence, and his plea was final. Considering
all the circumstances, the court did not find the hearsay
statements sufficiently trustworthy to be admitted under the
claimed exception.
b. Discussion
Evidence Code section 1230 sets out the hearsay exception
for statements against interest: “Evidence of a statement by a
declarant having sufficient knowledge of the subject is not made
inadmissible by the hearsay rule if the declarant is unavailable
as a witness and the statement, when made, was so far contrary
to the declarant’s pecuniary or proprietary interest, or so far
subjected him to the risk of civil or criminal liability . . . , or
created such a risk of making him an object of hatred, ridicule,
or social disgrace in the community, that a reasonable man in
his position would not have made the statement unless he
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believed it to be true.” The rationale for the exception “is that ‘a
person’s interest against being criminally implicated gives
reasonable assurance of the veracity of his statement made
against that interest,’ thereby mitigating the dangers usually
associated with the admission of out-of-court statements.”
(People v. Grimes (2016) 1 Cal.5th 698, 711 (Grimes).) To satisfy
the exception, the proponent “ ‘must show “that the declarant is
unavailable, that the declaration was against the declarant’s
penal [or other] interest, and that the declaration was
sufficiently reliable to warrant admission despite its hearsay
character.” ’ ” (People v. Geier (2007) 41 Cal.4th 555, 584 (Geier);
see People v. Duarte (2000) 24 Cal.4th 603, 610–611 (Duarte).)
We review the trial court’s ruling for abuse of discretion. (People
v. Westerfield (2019) 6 Cal.5th 632, 704 (Westerfield); Grimes, at
p. 711.) Its decision will not be disturbed on appeal “ ‘except on
a showing the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.’ ” (People v. Brown (2003) 31
Cal.4th 518, 534 (Brown); see Geier, at p. 585.)
The parties agree Scrappy became unavailable as a
witness when he asserted the privilege against self-
incrimination. (See Evid. Code, § 240, subd. (a)(1).) But support
for the hearsay exception’s other two requirements is not so
clear. As the trial court observed, it is questionable whether
Scrappy’s claim to have shot Trinh and the Nguyen children was
truly against his interests. “In determining whether a
statement is truly against interest within the meaning of
Evidence Code section 1230, and hence is sufficiently
trustworthy to be admissible, the court may take into account
not just the words but the circumstances under which they were
uttered, the possible motivation of the declarant, and the
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declarant’s relationship to the defendant.” (People v. Frierson
(1991) 53 Cal.3d 730, 745 (Frierson).) Scrappy’s statements
implicated him in serious criminal activity, and the record
suggests he personally feared opprobrium from the prison
community and the public at large for becoming known as a
child killer. However, he had already been convicted and was
serving a lengthy sentence for the same crimes. Belatedly
claiming that he was the primary shooter at Elm Street added
little to his own admission of guilt and could not result in
additional punishment. Defendant argues the admission would
have ruined Scrappy’s chances of obtaining parole, but the only
evidence that Scrappy would have “a glimmer” of such hope 40
years later was hearsay that his current counsel repeated
hearing from his trial counsel. Similarly, Scrappy was
purportedly concerned about the effect his statement might
have on a motion for a new trial, in the event he later decided to
withdraw his guilty plea. The court could well conclude these
potential consequences were too speculative or remote to
impinge on penal interest for purposes of Evidence Code
section 1230.
“[E]ven when a hearsay statement runs generally against
the declarant’s penal interest . . . , the statement may, in light
of circumstances, lack sufficient indicia of trustworthiness to
qualify for admission.” (Duarte, supra, 24 Cal.4th at p. 614.)
“ ‘The decision whether trustworthiness is present requires the
court to apply to the peculiar facts of the individual case a broad
and deep acquaintance with the ways human beings actually
conduct themselves in the circumstances material under the
exception.’ ” (Frierson, supra, 53 Cal.3d at p. 745.) The trial
court here did so, and it did not abuse its discretion in
concluding the statements were too unreliable to be admitted.
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Scrappy did not take responsibility for the shootings until
he was interviewed by defendant’s investigators, years after the
crimes occurred. “The significant passage of time is a relevant
circumstance to be considered when determining a statement’s
reliability.” (People v. Masters (2016) 62 Cal.4th 1019, 1057; see
Frierson, supra, 53 Cal.3d at p. 745.) In addition, as the court
observed, Scrappy was a demonstrated liar, and his current
account was “completely contrary” to all of his previous
statements. In the past, Scrappy had not only denied his own
responsibility to both the police and investigators, but at one
point he had falsely claimed Pan was personally involved in the
shootings. That assertion was later disproved when evidence
indisputably showed Pan was nowhere near the crime scene.
Inconsistent accounts cast doubt on the reliability of a
declarant’s statements. (See Geier, supra, 41 Cal.4th at p. 585.)
Although defendant did not raise the point below, he now
contends the court should have considered the reliability of
Scrappy’s account in light of corroborating evidence from the
trial. Before announcing its decision, the court remarked that
appellate case law prohibited it from using trial evidence as
corroboration of a statement against interest’s truthfulness,
remarking that it would be impermissible bootstrapping to look
beyond the circumstances surrounding the declaration’s
utterance. It appears the court was referencing the United
States Supreme Court’s decision in Idaho v. Wright (1990) 497
U.S. 805. There, under its pre-Crawford20 jurisprudence, the
high court held the confrontation clause requires that “hearsay
evidence used to convict a defendant must possess indicia of
reliability by virtue of its inherent trustworthiness, not by
20
Crawford v. Washington (2004) 541 U.S. 36.
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reference to other evidence at trial.” (Wright, at p. 822.) The
court reasoned that “the use of corroborating evidence . . . would
permit admission of a presumptively unreliable statement by
bootstrapping on the trustworthiness of other evidence at trial,
a result” that was at odds with the confrontation clause. (Id. at
p. 823.) Wright was addressing the constitutional requirements
governing admission of a hearsay statement against a criminal
defendant, however. Because defendant was the one seeking to
introduce a hearsay statement against interest here, there was
no confrontation issue, and the trial court was free to examine
all facts bearing upon the statement’s trustworthiness. (See
People v. Cudjo (1993) 6 Cal.4th 585, 607; Frierson, supra, 53
Cal.3d at p. 745.) This was precisely the sort of mistake the
court could have easily corrected if the issue had been brought
to its attention. Nevertheless, defendant said nothing, and
thereby forfeited the issue on appeal. (See People v. Romero
(2008) 44 Cal.4th 386, 411.)21
21
That said, we are not persuaded that the court’s mistake
led it to abuse its discretion. Defendant argues Scrappy’s
account was corroborated by evidence that two guns were used
in the Elm Street crimes. Because a shell casing that came from
a second gun was not available for testing until the close of the
guilt phase, the evidence initially established that a single gun
was used in the shootings. (See ante, fn. 7.) Scrappy’s statement
was consistent with the later discovery that one bullet was fired
from a second gun. However, this alignment between Scrappy’s
statement and the ballistics evidence does not necessarily mean
his assertion that he shot all but one of the victims was truthful.
It is beyond dispute that Scrappy participated in the crimes.
Unlike Karol and Evans, he was inside the house with
defendant the entire time. He would have known how many
guns were fired.
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In addition, although admitting to the murder of a mother
and her children would likely subject a person to “hatred,
ridicule, or social disgrace” (Evid. Code, § 1230) within the
general community, certain aspects of Scrappy’s particular
community meant he could actually benefit from making a false
confession. Defendant was a high-ranking gang leader; Scrappy
a juvenile and relative newcomer to the gang. Scrappy might
have believed that taking the blame for a more senior member’s
crimes, thus helping him evade the death penalty, could
enhance his position in the gang or help to secure his safety in
prison. Because he faced little to no risk of additional penal
consequences, the possibility of general opprobrium might have
been worth these potential benefits. This was the scenario we
envisioned in Grimes when we observed that “sometimes a
declarant who makes an inculpatory statement may have a
substantial incentive to exculpate others. A member of a
criminal street gang, for example, may choose to take the fall for
fellow gang members by making a confession that exculpates
them. A trial court in that situation may reasonably conclude
that the declarant’s incentive to protect his friends renders the
exculpatory portions of the statement inadmissible.” (Grimes,
supra, 1 Cal.5th at p. 716; see Frierson, at p. 745.) The court did
not abuse its discretion in concluding Scrappy’s hearsay
statements were not sufficiently trustworthy to be admitted as
statements against interest.
Defendant protests that it was fundamentally unfair for
the court to permit the prosecutor “to build his entire case on
the testimony of self-serving co-defendants whose various
stories changed continuously” but then exclude the statements
of another codefendant as unreliable. This objection overlooks
the most crucial difference between Scrappy’s account and those
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of Karol and Evans. Karol and Evans testified in court. They
were subject to extensive cross-examination, which allowed the
jury to evaluate their truthfulness. Scrappy did not testify. His
unavailability for cross-examination is why the court had a duty
to carefully scrutinize the reliability of his out-of-court
statements. “ ‘[A] defendant does not have a constitutional right
to the admission of unreliable hearsay statements.’ ” (People v.
Ayala (2000) 23 Cal.4th 225, 269.) The court’s ruling was
neither statutory nor constitutional error. (See Westerfield,
supra, 6 Cal.5th at p. 705.)
3. Instructional Error Claims
Defendant next argues the court should have modified the
standard penalty-phase instructions to include additional
concepts and should have refused to give a special instruction
regarding victim impact. The instructions given were accurate
and appropriate under settled law. There was no error.
a. Refusal to Modify CALJIC No. 8.85
“CALJIC No. 8.85 instructs the jury regarding the
aggravating and mitigating factors listed in section 190.3,
factors (a) through (k), which the jury must consider in deciding
the penalty to be imposed on a capital defendant.” (People v.
Linton (2013) 56 Cal.4th 1146, 1210.) Defendant argues the
court erred in refusing several proposed modifications.
First, defendant contends the court erred in refusing to
instruct the jury that it could consider lingering or residual
doubt regarding guilt as a mitigating factor in setting penalty.
As he recognizes, however, “we have frequently and consistently
rejected claims that the trial court is required to instruct on
lingering doubt.” (People v. Gonzales and Soliz (2011) 52 Cal.4th
254, 325; see People v. Howard (2010) 51 Cal.4th 15, 38.) The
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concept is sufficiently covered in CALJIC No. 8.85 and other
instructions typically given in capital cases. (People v. Enraca
(2012) 53 Cal.4th 735, 767; People v. Panah (2005) 35 Cal.4th
395, 497 (Panah).)
Next, defendant asserts the court improperly rejected two
modifications he proposed regarding how the jury should
consider his age and maturity. Although he was 22 years old
when he committed the charged crimes, the defense argued a
traumatic childhood hindered his cognitive and emotional
development. Defendant first sought an instruction that the
jury could consider his “psychological immaturity” as a
mitigation factor. The court did not err in refusing this
expansion. We have repeatedly held courts are not required to
instruct that age is relevant only in mitigation. (People v.
Burney (2009) 47 Cal.4th 203, 257–258; Panah, supra, 35
Cal.4th at pp. 499–500.) The instructions as a whole permitted
the jury to consider both defendant’s age and his psychological
immaturity as mitigating considerations. (People v. Booker
(2011) 51 Cal.4th 141, 194; Burney, at p. 258.) Defendant’s
second proposed modification would have related that people
under age 18 are not eligible for the death penalty or a sentence
of life without parole. We upheld the rejection of a similar
instruction, proposed by a 19-year-old defendant, in Brown,
supra, 31 Cal.4th 518. We noted that “ ‘[a]lthough instructions
pinpointing the theory of the defense might be appropriate, a
defendant is not entitled to instructions that simply recite facts
favorable to him.’ (People v. Gutierrez (2002) 28 Cal.4th 1083,
1159.) By instructing the jury that those younger than 18 years
old are legally ineligible for the death penalty, the proffered
instruction highlighted a single, mitigating aspect of
defendant’s age — that he had only recently become eligible for
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the ultimate penalty — and was thus improperly
argumentative.” (Id. at pp. 564–565.) Defendant’s proposed
modification was appropriately refused here for the same
reason.
Defendant also proposed advising the jury that it could
consider the fact that his accomplices received more lenient
sentences. The court did not err in refusing this request. “We
have consistently held that evidence concerning coparticipants’
sentences is properly excluded from the penalty phase of a
capital trial because such evidence is irrelevant.” (People v.
Moore (2011) 51 Cal.4th 1104, 1141; see People v. Thomas (2012)
54 Cal.4th 908, 940.) “The focus in a penalty phase trial of a
capital case is on the character and record of the individual
offender. The individually negotiated disposition of an
accomplice is not constitutionally relevant to [a] defendant’s
penalty determination.” (People v. Johnson (1989) 47 Cal.3d
1194, 1249.) Defendant argues a different rule should apply in
his case because the jury, having rejected the personal use
firearm enhancements in the guilt phase, necessarily concluded
one of his accomplices was the actual shooter. This logic fails.
The guilt-phase verdict merely reveals that the jury determined
the evidence was insufficient to prove which attacker fired the
fatal shot at any particular victim. Nothing about the verdict,
nor the facts of this case, made the accomplices’ sentences
relevant to the jury’s determination of defendant’s proper
punishment.
Finally, defendant argues the court should have approved
his request to supplement CALJIC No. 8.85 with an admonition
not to decide penalty “by the simple process of counting the
number of [aggravating and mitigating] circumstances on each
side.” The jury was instructed with this same concept in
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CALJIC No. 8.88, which explained that the “weighing of
aggravating and mitigating circumstances does not mean a
mere mechanical counting of factors on each side of an
imaginary scale or the arbitrary assignment of weights to any of
them.” Defendant complains that CALJIC No. 8.88 was read
after closing arguments and was not given with the other
instructions. He overlooks the fact that his own counsel
specifically requested that the court present the instructions in
the order it did. There was no error.
b. Refusal to Modify CALJIC No. 8.88
Defendant asked that CALJIC No. 8.88 be modified to add
that jurors could return a verdict of life imprisonment without
parole even if they found that one or more aggravating factors
outweighed the mitigating factors. Although the court was
initially inclined to adopt a version of defendant’s proposal, it
ultimately decided to give the standard, unmodified instruction.
Defendant now claims this refusal to modify CALJIC No. 8.88
was error. We disagree.
It is settled that CALJIC No. 8.88 accurately describes the
capital jury’s weighing task and is not unconstitutional. (People
v. Dykes (2009) 46 Cal.4th 731, 816–817.) Specifically, the
instruction is not constitutionally flawed “for failing to
affirmatively allow the jury to impose a life sentence even if the
aggravating factors outweigh the mitigating ones.” (People v.
Hovarter (2008) 44 Cal.4th 983, 1028.) Nor is the trial court
obligated to instruct that the jury cannot return a death
judgment unless it finds aggravating factors “ ‘outweigh[]’ ”
mitigating factors. (Panah, supra, 35 Cal.4th at p. 498.) “[T]he
standard version of CALJIC No. 8.88, read as a whole,
accurately describes the individualized, normative nature of the
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sentencing determination, and properly guides the jury’s
discretion in this regard.” (Contreras, supra, 58 Cal.4th at
p. 170.) Defendant contends his modification was “better” and
“more accurately stated the law.” Even if this were true, it
would not mean instructing the jury with unmodified CALJIC
No. 8.88 was error. It was not.
c. Pinpoint Instruction on Child Victim Impact
At the prosecution’s request, the court instructed the jury
that it could “consider the impact [of] the defendant’s crime on
the surviving victim, Dennis Nguyen, . . . as part of the
circumstances of the crime of which defendant was convicted”
under section 190.3, factor (a). Although it is unclear whether
he raised an objection below, defendant now contends the
instruction was argumentative because it improperly singled
out one side’s evidence for specific mention.
We have rejected similar claims (People v. Souza (2012) 54
Cal.4th 90, 139; People v. Harris (2005) 37 Cal.4th 310, 358–
359), and do so again. The jury was entitled to consider as a
circumstance of defendant’s capital crimes the harm caused to
the victims’ families. (§190.3, factor (a); People v. Edwards
(1991) 54 Cal.3d 787, 833–836.) Moreover, the jury’s
consideration of victim impact “need not be based upon specific
testimony of the victim’s family members describing their
emotions.” (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1017.)
The prosecutor did not present victim impact evidence, but his
closing argument asked the jury to consider how defendant’s
crimes affected Dennis. The pinpoint instruction appropriately
informed the jury how it could take this victim impact into
account. (See Harris, at p. 358.)
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4. Constitutionality of Death Penalty Law
Defendant raises a number of familiar challenges to the
constitutionality of California’s death penalty statute and
instructions. While acknowledging that we have previously
rejected all of these arguments, he presents them again to urge
reconsideration and preserve the issues for federal review. We
decline to reconsider our previous holdings that:
• The class of offenders eligible for the death penalty is not
impermissibly broad. (People v. Potts (2019) 6 Cal.5th 1012,
1060 (Potts); People v. Reed (2018) 4 Cal.5th 989, 1018.)
• Section 190.3, factor (a), which permits aggravation based on
the circumstances of the crime, does not result in arbitrary
and capricious imposition of the death penalty. (People v.
Rhoades (2019) 8 Cal.5th 393, 455 (Rhoades); People v.
Capers (2019) 7 Cal.5th 989, 1013 (Capers).)
• California’s death penalty scheme does not violate the federal
Constitution for failing to require: written findings (People
v. Molano (2019) 7 Cal.5th 620, 678 (Molano)); unanimous
findings as to the existence of aggravating factors or
unadjudicated criminal activity (Capers, supra, 7 Cal.5th at
p. 1013); or findings beyond a reasonable doubt as to the
existence of aggravating factors (other than factor (b) or (c)
evidence), that aggravating factors outweigh mitigating
factors, or that death is the appropriate penalty (People v.
Fayed (2020) 9 Cal.5th 147, 213 (Fayed); People v. Krebs
(2019) 8 Cal.5th 265, 350 (Krebs)). These conclusions are not
altered by Apprendi, supra, 530 U.S. 466, Ring v. Arizona
(2002) 536 U.S. 584, or Hurst v. Florida (2016) 577 U.S. 92.
(Rhoades, supra, 8 Cal.5th at p. 455; Capers, at pp. 1013–
1014.)
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• The prosecution has no obligation to bear a burden of proof
or persuasion because sentencing is “an inherently moral and
normative function, and not a factual one amenable to burden
of proof calculations.” (People v. Winbush (2017) 2 Cal.5th
402, 489; see People v. Hoyt (2020) 8 Cal.5th 892, 954 (Hoyt);
Capers, supra, 7 Cal.5th at pp. 1014–1015.) Further, “ ‘the
trial court is not required to explicitly tell the jury that
neither party bears the burden of proof.’ ” (Potts, supra, 6
Cal.5th at p. 1060.)
• The federal Constitution does not require an instruction that
life is the presumptive penalty. (People v. Beck and Cruz
(2019) 8 Cal.5th 548, 670 (Beck and Cruz)); Capers, supra, 7
Cal.5th at p. 1016.)
• CALJIC No. 8.88 is not impermissibly flawed because it does
not require a finding that death is the “appropriate” penalty
(see People v. Leon (2020) 8 Cal.5th 831, 853; Beck and Cruz,
supra, 8 Cal.5th at p. 671), or because it does not require a
life sentence if the jury finds mitigating factors outweigh
aggravating ones (Capers, supra, 7 Cal.5th at p. 1016;
Johnson, supra, 6 Cal.5th at p. 594). The instruction’s use of
the phrase “so substantial” does not make it overbroad or
unconstitutionally vague. (See Beck and Cruz, at p. 671;
People v. Ghobrial (2018) 5 Cal.5th 250, 293.)
• CALJIC No. 8.85’s use of the words “extreme” and
“substantial” does not impermissibly constrain the jury’s
consideration of mitigating circumstances. (See Molano,
supra, 7 Cal.5th at p. 678; People v. Rices (2017) 4 Cal.5th 49,
94.) The court was not constitutionally required to delete
inapplicable sentencing factors, identify which factors are
aggravating or mitigating, or instruct that certain factors are
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Opinion of the Court by Corrigan, J.
relevant only for mitigation. (Krebs, supra, 8 Cal.5th at
p. 351; Potts, supra, 6 Cal.5th at p. 1061.)
• The federal Constitution does not require intercase
proportionality review. (Hoyt, supra, 8 Cal.5th at p. 955;
Rhoades, supra, 8 Cal.5th at pp. 455–456.)
• The death penalty law does not violate equal protection
because it provides different procedures for capital and
noncapital defendants. (Fayed, supra, 9 Cal.5th at p. 214;
Rhoades, supra, 8 Cal.5th at p. 456.)
• California’s capital sentencing scheme does not violate
international law or the Eighth Amendment. (Beck and
Cruz, supra, 8 Cal.5th at p. 671; Molano, supra, 7 Cal.5th at
p. 679.)
C. Restitution Fine
At the time of defendant’s crimes, section 1202.4,
subdivision (b) required the court to impose a felony restitution
fine between $200 and $10,000. Although the fine was
mandatory, a defendant’s inability to pay could be considered in
setting the amount. (§ 1202.4, former subd. (d).) In considering
defendant’s plea for a reduced fee, the court observed the
question was whether to exercise mercy to allow defendant “to
get whatever benefits he might receive from his income at the
prison during his stay there.” It ultimately ordered him to pay
the maximum fine of $10,000. Defendant now claims this order
was an abuse of discretion because it was “based on the fiction”
that he could receive income while in prison.
These arguments misapprehend the burden of proof.
Under governing law, it is the defendant who must “bear the
burden of demonstrating his or her inability to pay.” (§ 1202.4,
subd. (d).) As in other capital cases, defendant “contends his
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Opinion of the Court by Corrigan, J.
indigence is established by the fact that he was appointed
counsel and provided funds for expert witnesses and
investigators, and because he assertedly has no earning
potential. However, the fact that he could not afford the cost of
the defense in a capital case does not establish that he cannot
pay these fines.” (People v. Miracle (2018) 6 Cal.5th 318, 356.)
Defendant “points to no evidence in the record supporting his
inability to pay, beyond the bare fact of his impending
incarceration.” (People v. Gamache (2010) 48 Cal.4th 347, 409.)
The record indicates the trial court was aware of its duty to
consider defendant’s ability to pay the fine but exercised its
discretion to impose the maximum amount. Considering the
gravity of defendant’s offenses and the losses he inflicted on
multiple victims (see § 1202.4, subd. (d)), we cannot conclude
this order was an abuse of discretion. (See Potts, supra, 6
Cal.5th at p. 1057.)
Nor is there merit to defendant’s claim that the court
violated Apprendi, supra, 530 U.S. 466 in imposing the fine
without jury findings. Apprendi holds that: “Other than the fact
of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” (Id.
at p. 490.) The rule can also be implicated when criminal fines
are imposed. (Southern Union Co. v. United States (2012) 567
U.S. 343, 346.) However, Apprendi does not apply to the setting
of a fine under section 1202.4. As we have previously explained,
this mandatory restitution fine “is properly understood as part
of the maximum penalty statutorily authorized by a jury’s
finding that the defendant is guilty of a felony.” (People v. Wall
(2017) 3 Cal.5th 1048, 1076.) In imposing the fine, a court does
not make any factual finding that increases the range of
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PEOPLE v. CHHOUN
Opinion of the Court by Corrigan, J.
penalties to which the defendant is exposed. It simply sets a
fine within the prescribed statutory range. (People v. Henriquez
(2017) 4 Cal.5th 1, 47.) “Its ruling therefore raises no concerns
under Apprendi.” (Id. at pp. 47–48.)22
D. Cumulative Error
Finally, defendant argues errors in his trial were
cumulatively prejudicial. We assumed potential errors in the
court’s failure to admonish support persons each time they
accompanied a witness and in the admission of hearsay at the
penalty phase. We found no reasonable possibility either
assumed error could have affected the verdict and now conclude
no cumulative prejudice rendered defendant’s trial unfair. (See,
e.g., Potts, supra, 6 Cal.5th at p. 1058.)
22
Defendant also argues his obligation to pay the fine should
be stayed pending the finality of his automatic appeal, but, as
he recognizes, an appeal to this court “stays the execution of the
judgment in all cases where a sentence of death has been
imposed.” (§ 1243.) No additional stay is required.
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PEOPLE v. CHHOUN
Opinion of the Court by Corrigan, J.
III. DISPOSITION
The judgment is affirmed.
CORRIGAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
KIM, J.*
__________________________
* Associate Justice of the Court of Appeal, Second Appellate
District, Division Five, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
73
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Chhoun
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S084996
Date Filed: February 11, 2021
__________________________________________________________________________________
Court: Superior
County: San Bernardino
Judge: Bob N. Krug
__________________________________________________________________________________
Counsel:
Michael J. Hersek and Mary K. McComb, State Public Defenders, under appointments by the Supreme
Court; Denise Anton and Alexander Post, Deputy State Public Defenders, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Chief Assistant Attorney General, Joseph P. Lee and Toni R. Johns Estaville,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Alexander Post
Deputy State Public Defender
1111 Broadway, 10th Floor
Oakland, CA 94607-4139
(510) 267-3300
Toni R. Johns Estaville
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6166