People v. Phon CA2/4 ( 2021 )

Filed 4/22/21 P. v. Phon CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B304495
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA108856)
v.
SURIND PHON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, James D. Otto, Judge. Affirmed.
John Lanahan, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul Roadarmel, Jr. and Stephanie M. Miyoshi,
Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Surind Phon of second degree
murder after he drove alongside another car and fatally shot the
other driver. He contends that his conviction must be reversed
because the trial court refused his request to instruct the jury on
the lesser included offense of involuntary manslaughter. We
affirm.
PROCEDURAL HISTORY
An information filed on June 20, 2019 charged appellant
with the February 23, 2018 murder of Glen Chico (Pen. Code,
§ 187, subd. (a)1; count one), shooting at an occupied motor
vehicle (§ 246; count two), and shooting from a motor vehicle
(§ 26100, subd. (d); count three). The information further alleged
that appellant personally and intentionally discharged a firearm,
causing great bodily injury and death (§ 12022.53, subd. (d)),
personally and intentionally discharged a firearm (§ 12022.53,
subd. (c)), personally used a firearm (§ 12022.53, subd. (b)), and
suffered four prior convictions (§ 667.5, subd. (b)). Appellant pled
not guilty and denied the enhancement allegations.
At appellant’s jury trial, on count one the trial court
instructed the jury on second degree murder, as well as the lesser
included offense of voluntary manslaughter. The court denied
appellant’s request to include an instruction on the lesser
included offense of involuntary manslaughter. The jury found
appellant guilty as charged on all three counts and found true all
of the firearm enhancement allegations.
Following a court trial on the prior conviction allegations,
the court found those allegations true. The trial court sentenced
All further statutory references are to the Penal Code
1
unless otherwise indicated.
2
appellant to a total of 40 years to life in prison: a base term of 15
years to life on count one, plus 25 years to life for the section
12022.53, subdivision (d) enhancement, with terms of seven years
each on counts two and three, stayed pursuant to section 654.
Appellant timely appealed.
FACTUAL BACKGROUND
I. Prosecution Evidence
A. The Shooting
Savoeun Van2 testified that she was friends with the
victim, Glen Chico. She was also in a sexual relationship with
appellant at the time and they would use methamphetamine
together. Around midnight on February 23, 2018, Chico dropped
Van off at a restaurant in Long Beach. Chico was driving Van’s
car, a Mitsubishi Eclipse Spider. Van asked Chico to drop her off,
after which he had permission to borrow her car. Before he
dropped her off, they smoked methamphetamine together. Chico
asked if she was going to meet another man; Van lied and said
she was not.
Van was planning to meet appellant at the restaurant.
After Chico dropped her off, Van called appellant to pick her up,
telling him that her ex-boyfriend, Sina Konhu, took her car.3 Van
also said that while she was trying to get a job at a club, Konhu
“jump[ed] in the driver [seat] and just took my car.” Van testified
that she said this because she did not want appellant to know
about Chico.
Van also used the first name Samantha.
2
Van testified that she had ended her relationship with
3
Konhu about a month prior. He had been physically abusive
toward her.
3
Chico left the parking lot after dropping Van off, but then
returned. Van saw him driving nearby and texted him to go
home. Appellant arrived, and Van got into his Mazda. She
testified that appellant was “really angry and, like, a madman,”
and yelling because she was not answering her phone. Appellant
asked her, “where the fuck is your car?” Van was too scared to
tell him that she had given Chico permission to borrow her car.
At that point, they saw Van’s car drive by the parking lot and
appellant said, “there is your car.” She told him, “it’s okay. Let it
go.” But appellant drove after her car.
Van testified that she hid on the floor of the front
passenger side of appellant’s car. As they drove after Chico, she
saw appellant take his gun out of his pocket and hold it against
his right thigh. When she saw the gun, she said, “Don’t do
nothing stupid, please.” As they pulled alongside Van’s car,
appellant told Chico to “get out” and “pull over,” and she heard
Chico say, “I am going home. I don’t want no problem.” Van told
appellant again to “let it go” and also begged him, “don’t shoot.”
Then she saw appellant aim the gun at her car. He pointed the
gun out of his open passenger-side window and fired one shot.
Van testified during direct examination that she asked appellant
if he shot at her car and he said, “yes.” However, during cross-
examination, she stated that appellant actually said “don’t worry,
ma. I shot at the air.”
Just before appellant fired, Van grabbed his arm, which
was pointing the gun. She later clarified that she did not grab
his arm, but patted him on the arm, while his hand was still on
his thigh, and said, “please don’t.” She did not touch him while
he was aiming the gun. Van testified that she told police that she
was begging appellant not to shoot and he was yelling, “Why are
4
you trying to stop me?” Appellant also told her that the reason
he shot was because she was begging him not to.
After firing the shot, appellant kept driving. Van learned
later that Chico had died.
Officers from the Long Beach Police Department (LBPD)
responded to the scene at the 710 freeway entrance around 12:42
a.m. on February 23, 2018. They saw a white Mitsubishi Spider
on the embankment of the on-ramp. There was a bullet hole
through the driver’s side door near the handle, and the driver
was non-responsive.
Chico was pronounced dead at the scene. The bullet passed
through the driver’s side door, entered Chico’s left arm, and
travelled through his body back to front and left to right, exiting
his chest. The bullet pierced Chico’s left lung and heart, causing
his death.
LBPD officers reviewed surveillance footage from
businesses near the restaurant, which showed Van’s Mitsubishi
and appellant’s Mazda entering and leaving the parking lot, then
making a U-turn, with the Mazda following the Mitsubishi. The
police interviewed Van on March 22 and 25, 2018. Appellant was
arrested in Fresno on March 28, 2018.
B. Appellant’s interview
LBPD detective Mark Mattia and his partner interviewed
appellant following his arrest. The prosecution played the
recording of appellant’s interview for the jury. Appellant told the
detectives that he had been “seeing” Van for a few months, once
or twice a month, but she was not his girlfriend. At first,
appellant said he did not know anything about the victim until
after the shooting, but that Chico “didn’t deserve it.” Shown
5
photos of the Mazda, appellant acknowledged that he had driven
the vehicle before, but that it was registered to his friend.
Appellant then admitted that he shot Chico. He continued:
“It was an accident ya’ll, you know, it was dude pull over man.
This girl is—give her car back. All right. He stole the car. I’m
like, hey, I’m tired of you, you know what I’m saying?” Appellant
stated that Van was his friend but that Chico “didn’t deserve it.”
Appellant said he never should have picked up the phone when
Van called that night asking for help. According to appellant,
Van had a “crazy” ex-boyfriend Konhu, with whom he used to be
friends. That night, Van told him that she needed help and that
Konhu had stolen her car, so he agreed to come pick her up.
Appellant claimed that he was trying to get Chico to pull
over and give the car back to Van, but Chico would not pull over.
Appellant heard Chico say, “I’m going to go home,” but appellant
continued to tell him to pull over. Van was saying, “Don’t shoot.”
Appellant stated that he was just trying to fire a “warning shot.”
He did not intend to kill Chico and told the detectives that it was
a “senseless murder.”
After appellant fired his gun, he saw the car veer off the
road, and he “took off on the freeway.” He learned what had
happened a few days later. Appellant told the detectives that he
dismantled and buried the gun. When the detectives later
reviewed the recording of the end of the interview, they
discovered appellant also said, “I should have killed her ass
man.”
II. Defense Evidence
Appellant testified that shortly after midnight on February
23, 2018, he received a phone call from his girlfriend, Van. She
said that “her car was stolen” by her ex-boyfriend, Konhu, and
6
asked appellant to pick her up. She said that Konhu took the car
“forcefully against her will.” When asked for more detail at trial,
appellant testified that Van told him that Konhu came and took
her car while she was working. Appellant was high on
methamphetamine but went to the restaurant to pick Van up.
When Van got into his car, he asked her how she got to the
restaurant if her car had been stolen. He felt she was not being
honest about the situation, that “she was hiding something. A lot
of lies.”
As Van and appellant were talking in the restaurant
parking lot, he saw Van’s car drive by, so he told Van they were
“going to go get your car” and drove after the car. Van told him to
“just leave it alone.” Appellant drove after Van’s car while Van
crouched down on the floorboard. Appellant said there was “a lot
of chaos in the car, yelling back and forth,” with Van telling him
to “leave it alone.” After making a U-turn to continue following
Van’s car, appellant pulled out a loaded gun he kept under the
seat of the vehicle.
Right before he fired, appellant and Van “had a little
tussle” in which Van grabbed his arm near his elbow. Afterward,
he said, “What are you doing? You could have got yourself hurt.
I could have hurt you.” Appellant fired one shot. He testified
that he was not aiming at Chico and did not mean to shoot at the
car. However, during cross-examination, appellant admitted that
he pointed the gun out the passenger window, toward where
Chico was driving the other car one lane over. When asked to
describe what he was thinking at the moment he shot, he
testified: “Just a lot going on at the moment. You know, being
informed that it was her ex Sina that was driving, that stole the
car, and just – I guess overprotective of her and –.” He was also
7
thinking that what he was doing was dangerous. When defense
counsel asked if he disregarded that danger, appellant said: “I
had control over my finger, but . . . I didn’t aim at the car. I
didn’t intend for it to hit the car.” He claimed that he wasn’t
thinking at the time that it could have killed Chico, he “wasn’t
thinking at all” because of the “heat of the moment.” During
cross-examination, appellant agreed that he knew when he fired
that he could hurt someone. However, he later testified that he
had that knowledge at the time of trial, but at the time he fired,
“I wasn’t thinking. I was reacting with feelings.”
Appellant admitted that he had been convicted of a prior
felony of carrying a concealed weapon and four prior felonies
between 2008 and 2016 of being a felon in possession of a firearm.
He had owned four other guns prior to the gun used in the
shooting, had experience firing them at a range, and knew how
the guns worked. Appellant also admitted that he lied to the
detectives about burying the gun; instead, he sold the gun about
a week after the shooting.
DISCUSSION
Appellant contends the trial court erred in refusing his
request to instruct the jury on involuntary manslaughter,
because there was substantial evidence that he acted without
conscious disregard for human life. We disagree.
I. Background
At trial, the prosecution argued a theory of implied malice
to support the murder charge. During the jury instruction
conference, the court indicated it intended to instruct the jury on
second degree murder and on the lesser included offense of
voluntary manslaughter. Defense counsel requested that the
court also include CALCRIM No. 580 on involuntary
8
manslaughter and the prosecution objected. Defense counsel
argued that appellant “repeatedly said he did not intend to kill
Mr. Chico,” and that the instruction would apply because
appellant did not have the intent to kill or conscious disregard for
human life. The court noted that the act of shooting a gun from a
vehicle in the direction of another vehicle was an inherently
dangerous felony and that there were no other underlying crimes
that appellant could have committed that were not inherently
dangerous felonies. Defense argued that “the difference between
this instruction and the instruction for second-degree murder is
the requirement for conscious disregard for human life,” and that
“there are so many other things that were going on in that car
when he fired that shot that his attention was divided . . . that
very well he could have not appreciated the dangerousness of
what he was doing.” The court took the issue under submission.
Later, the court indicated it was “still on the fence” and
would wait until after appellant’s testimony “to decide whether
there’s sufficient evidence for that instruction to be given.” After
appellant testified, the court ruled that it was not going to give
the instruction. The court reasoned: “I don’t think there’s any
evidence to support giving 580 . . . particularly after the
defendant’s testimony.”
II. Standard of Review
The trial court has an obligation to instruct on a lesser
included offense if substantial evidence would support a jury
verdict that the defendant was guilty only of the lesser included
offense and not the greater offense. (People v. Gonzalez (2018) 5
Cal.5th 186, 196; People v. Romero (2008) 44 Cal.4th 386, 402-
403.) Substantial evidence is evidence from which a jury of
reasonable people could conclude that the lesser offense, but not
9
the greater, was committed. (People v. Romero, supra, 44 Cal.4th
at p. 403; People v. Breverman (1998) 19 Cal.4th 142, 162.) “Even
evidence that is unconvincing or subject to justifiable suspicion
may constitute substantial evidence and may trigger the lesser-
included-offense requirement.” (People v. Vasquez (2018) 30
Cal.App.5th 786, 792 (Vasquez).) Yet substantial evidence is not
synonymous with “‘any evidence, no matter how weak’” (People v.
Breverman, supra, 19 Cal.4th at p. 162); “[s]peculative, minimal,
or insubstantial evidence is insufficient to require an instruction
on a lesser included offense.’” (People v. Simon (2016) 1 Cal.5th
98, 132.)
We review the trial court’s failure to instruct on a lesser
included offense de novo. (People v. Brothers (2015) 236
Cal.App.4th 24, 30 (Brothers); Vasquez, supra, 30 Cal.App.5th at
p. 793.) In doing so, we consider the evidence in the light most
favorable to appellant. (Brothers, supra, 236 Cal.App.4th at p.
30.) We do not evaluate witness credibility, and we resolve
“uncertainty about whether the evidence is sufficient to warrant
instructions” in appellant’s favor. (Vasquez, supra, 30
Cal.App.5th at p. 792.)
III. Legal Principles
Appellant was charged with murder, the unlawful killing of
a human being with malice aforethought. (§ 187, subd. (a).)
“Second degree murder is the unlawful killing of a human being
with malice aforethought but without the additional elements,
such as willfulness, premeditation, and deliberation, that would
support a conviction of first degree murder.” People v. Knoller
(2007) 41 Cal.4th 139, 151.) Malice may be express or implied.
(§ 188.) Malice is express “when there is manifested a deliberate
intention to unlawfully take away the life of a fellow creature.”
10
(§ 188, subd. (a)(1).) It is implied “when no considerable
provocation appears, or when the circumstances attending the
killing show an abandoned and malignant heart.” (§ 188, subd.
(a)(2).) Courts have interpreted this language to mean that
implied malice has both a physical and a mental component. A
defendant accomplishes the physical component by performing an
act, the natural consequences of which are dangerous to life. He
satisfies the mental component if he knows that the conduct
endangers the life of another and acts with conscious disregard
for life. (People v. Soto (2018) 4 Cal.5th 968, 974.) Thus, “implied
malice requires a defendant’s awareness of engaging in conduct
that endangers the life of another—no more, and no less.”
(People v. Knoller, supra, 41 Cal.4th at p. 143.)
Manslaughter is “‘the unlawful killing of a human being
without malice.’” (§ 192.) “A defendant lacks malice and is guilty
of voluntary manslaughter in ‘limited, explicitly defined
circumstances: either when the defendant acts in a “sudden
quarrel or heat of passion” (§ 192, subd. (a)), or when the
defendant kills in “unreasonable self-defense”—the unreasonable
but good faith belief in having to act in self-defense [citations].’
[Citation.]” (People v. Blakely (2000) 23 Cal.4th 82, 87-88.) Thus,
“[w]hen a homicide, committed with malice, is accomplished in
the heat of passion or under the good faith but unreasonable
belief that deadly force is required to defend oneself from
imminent harm, the malice element is ‘negated’ or, as some have
described, ‘mitigated’; and the resulting crime is voluntary
manslaughter, a lesser included offense of murder.” (Brothers,
supra, 236 Cal.App.4th at p. 30.)
In the lesser included offense of involuntary manslaughter,
however, malice is entirely absent rather than negated (§ 192,
11
subd. (b)); the crime is one of “criminally negligent unlawful
homicide.” (People v. Ochoa (1998) 19 Cal.4th 353, 423.)
“Accordingly, an instruction on involuntary manslaughter is
required whenever there is substantial evidence indicating the
defendant acted without conscious disregard for human life and
did not form the intent to kill.” (Vasquez, supra, 30 Cal.App.5th
at p. 794.) Involuntary manslaughter is statutorily defined as a
killing occurring during either: (1) the commission of an
unlawful act not amounting to a felony, that is, a misdemeanor;
or (2) the commission of a lawful act which might produce death,
performed in an unlawful manner or without due caution and
circumspection. (§ 192, subd. (b); People v. Manriquez (2005) 37
Cal.4th 547, 587; People v. Butler (2010) 187 Cal.App.4th 998,
1006–1007; People v. Parras (2007) 152 Cal.App.4th 219, 227.)
IV. Analysis
Appellant contends there was substantial evidence to
support a jury verdict of involuntary manslaughter and therefore
the court should have instructed the jury on that theory. There is
no dispute that appellant lacked the intent to kill, an element of
express malice. Indeed, the prosecution relied only on the theory
of implied malice at trial.
Appellant argues that the evidence that he thought Van’s
car had been stolen from her and he intended only to fire a
“warning shot” would support a finding that he acted without
conscious disregard for human life, or implied malice. We are not
persuaded that there was substantial evidence to require an
instruction on involuntary manslaughter. Appellant admitted
that he intentionally fired his gun out of the window of his car in
the direction of the car driven by Chico. He did not claim that he
fired accidentally, nor was there any evidence to suggest as
12
much. This conduct was inherently dangerous. (See People v.
McNally (2015) 236 Cal.App.4th 1419, 1425 [“It is settled that
brandishing a loaded firearm at a person is an act dangerous to
human life.”]; People v. Garcia (2008) 162 Cal.App.4th 18, 22.)
Appellant also admitted that he knew his conduct was
dangerous. Although he claimed he did not intend to hit the car
or Chico, he testified that he did not think about the danger
because he was acting “in the heat of the moment.” The jury
rejected this testimony when it convicted appellant of second
degree murder instead of voluntary manslaughter. “[T]he state
of mind of a person who acts with conscious disregard for life [i.e.,
implied malice] is, ‘I know my conduct is dangerous to others, but
I don’t care if someone is hurt or killed.’” (People v. Olivas (1985)
172 Cal.App.3d 984, 988.) Because appellant knowingly used
inherently lethal force against Chico by driving next to Chico and
firing a gun in his direction, there is no evidence to establish that
he acted without a conscious disregard for human life. (See
Brothers, supra, 236 Cal.App.4th at p. 35; see also People v.
Garcia, supra, 162 Cal.App.4th at p. 22 [“An unlawful killing
during the commission of an inherently dangerous felony, even if
unintentional, is at least voluntary manslaughter.”]; People v.
Cook (2006) 39 Cal.4th 566, 596 [no duty to instruct on
involuntary manslaughter when the defendant, who did not
intend to kill the victim, “savagely beat” victim to death].)
Appellant argues that his conduct could constitute
involuntary manslaughter under section 192, subdivision (b)(2),
as “the commission of a lawful act which might produce death,
performed in an unlawful manner or without due caution and
circumspection.” But his acts of shooting from a vehicle and
shooting into an occupied vehicle are not lawful acts; they are
13
both felonies, of which he was convicted. (§§ 246, 26100.)
Moreover, his contention that these “otherwise illegal” acts “may
become legal” when done to stop the commission of a felony, such
as a carjacking, is not supported by the cases he cites. (See
People v. Melendrez (1900) 129 Cal. 549, 550-551 [evidence could
support finding of manslaughter where the defendant mistook
the victim for an assailant, pursued him, then fired after he
believed the victim was about to shoot him]; Franzen v. Shenk
(1923) 192 Cal. 572 [action to recover damages for malicious
prosecution].)
Appellant further contends that his actions were lawful as
justifiable homicide under section 1974, because he was
attempting to stop what he believed to be a carjacking or robbery
in progress. But appellant’s argument that he acted in Van’s
defense reflects a claim of voluntary manslaughter, which the
jury rejected. (See People v. Breverman, supra, 19 Cal.4th at p.
154 [finding that evidence indicating a defendant’s honest but
unreasonable belief of the need to engage in self-defense or
4 Section 197 provides in pertinent part that a killing is
justifiable “when committed by any person in any of the following
cases: [¶] 1. When resisting any attempt to murder any person,
or to commit a felony, or to do some great bodily injury upon any
person; or, [¶] . . . 3. When committed in the lawful defense of
such person, . . . when there is reasonable ground to apprehend a
design to commit a felony or to do some great bodily injury, and
imminent danger of such design being accomplished; but such
person, or the person in whose behalf the defense was made, if he
was the assailant or engaged in mutual combat, must really and
in good faith have endeavored to decline any further struggle
before the homicide was committed.”
14
defense of another requires a jury instruction on voluntary
manslaughter].)
Moreover, there was no evidence from which a jury could
find that appellant fired his gun in an attempt to protect anyone
from harm. (See People v. Hardin (2000) 85 Cal.App.4th 625,
629–630 [“only that force which is necessary to repel an attack
may be used in self-defense; . . . [and] deadly force or force likely
to cause great bodily injury may be used only to repel an attack
which is in itself deadly or likely to cause great bodily injury”];
People v. Ceballos (1974) 12 Cal.3d 470, 472 [rejecting application
of section 197 where “the character and manner of the burglary
[did] not reasonably create a fear of great bodily harm, [thus]
there is no cause for exaction of human life, or for the use of
deadly force”]; People v. Piorkowski (1974) 41 Cal.App.3d 324, 329
[finding justifiable homicide “only where the felony committed is
one which threatens death or great bodily harm”].)
There was no evidence that appellant believed at the time
Van had been the victim of a carjacking. Rather, he testified that
she told him the vehicle was stolen. When appellant arrived at
the parking lot, he said that Van told him to let the issue go. He
did not claim that she was scared or hurt. When he saw Van’s
car nearby, appellant testified that he acted to follow it and then
to force the driver to pull over in an attempt to reclaim the car,
not because he needed to protect Van. Notably, Van was in
appellant’s car at the time, begging him to stop and not to shoot,
while Chico tried to drive away, stating that he just wanted to go
home.5
5We also reject appellant’s contention that he used deadly
force during the ongoing commission of a purported robbery or
15
Under these circumstances, there is no evidence to support
appellant’s claim of justifiable homicide. The trial court
accordingly did not err by refusing to provide an involuntary
manslaughter instruction.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J. CURREY, J.
carjacking. Appellant arrived and began to chase Van’s car
several minutes after the vehicle was purportedly taken from
Van and driven out of the parking lot. As such, the commission
of any supposed carjacking or robbery was complete. (See People
v. Gomez (2008) 43 Cal.4th 249, 255 [robbery requires asportation
and continues until the perpetrator has reached a place of
temporary safety with the property]; People v. Lopez (2003) 31
Cal.4th 1051, 1060 (asportation element for carjacking requires
‘“[a]ny removal, however slight”’ of the vehicle from another
person].)
16