P. v. Vang

Filed 10/18/07 P. v. Vang CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

Following his convictions for two counts of first degree murder, two counts of attempted murder committed with deliberation and premeditation, and one count of evading a peace officer with willful and wanton disregard for safety, defendant Xer Vang appeals. He contends there was insufficient evidence that one of the murders was committed with premeditation and deliberation, the trial court erred in admitting unduly prejudicial autopsy photographs, and the trial court erred in sentencing him to the upper term on the conviction for evading a peace officer and imposing that term to run consecutively to his other sentences. We shall affirm.

STATEMENT OF FACTS

In September 2004 defendant was living with Mee Yang and Ger Vang; their minor children; two adult children, George Vang and Belinda Yang; and one grandchild, Cynthia Yang. Another adult daughter, Melissa Vang, her husband Yia Moua, and their children also stayed at the house occasionally.

Defendant was Gers brother.^[1] Defendant had three children with Suzanne Saunders. The children lived with Suzanne, but defendant had regular supervised visits.

Defendant regularly used crystal methamphetamine. When he was using the drug, he acted scary and mad. Defendant also had periods of delusions and auditory hallucinations. He would hear his children crying, screaming, and calling out for help. There were also times he thought his children were under the house, buried under the couch, or in the walls or attic. He feared people were out to kill him.

For about a week prior to the murders, defendant was acting strangely. The day and night before the murders, he was at Mee and Gers house and seemed like he was on drugs. He said someone had died in the house and that his children were buried under the couch and outside. He started digging outside. Defendant called the police to report the deaths, and acted normal when officers arrived. Mee told the officers defendant was on drugs and asked them to take him away, but they refused.

Later that evening, defendant left the house with one of Mee and Gers minor children, Johnny. They called police to report Johnny missing. Officers found defendant digging in the dirt at the light rail station. They returned Johnny to his home.

The following morning, an officer was called to defendants sisters home. Defendants sister wanted defendant to leave her alone. She reported he appeared to have been drinking. She also related that defendant complained about her care of his children and that he had once tried to kill his own mother. The officer spoke with defendant, who appeared very calm and answered the officers questions without difficulty. Defendant left of his own accord.

Around 11:00 a.m. on September 27, 2004, defendant returned to Mee and Gers home and appeared to be under the influence of drugs. Ger was at work and Mee was getting ready to leave with the children to run errands. After Mee buckled the children into the van, she went back into the house to get her one-year-old granddaughter, Cynthia. Defendant asked Mee for the familys hunting gun. Mee told him it was not there and he left the room.

Defendant went to the laundry room, where the family kept a sledgehammer. He then appeared at the front door holding the sledgehammer over his head with both hands, and repeatedly hit George with it. Georges sister, Melissa, called out to Mee, Mommy, [defendant] killed George. She then ran to the van that the children were in, got inside, locked the doors, and tried to call 911.

Yia, carrying his infant son, went to investigate. Yia saw George lying in the doorway, unconscious and bleeding. Then he saw defendant behind him. He ran toward the backyard through the house and defendant gave chase. Yia, still holding his son, picked up a stick and started hitting defendant with it. Defendant cornered Yia and hit him in the head with the sledgehammer. Defendant continued to hit Yia, who ran outside to a neighbors home and told them to call the police.

Meanwhile, Mee left the house, carrying Cynthia. Mee wanted to make sure the neighbors called 911. As Mee returned to the house to check on the children, she saw defendant reaching through a window he had broken out of the van to get to the children, so she called out for help. She was about one house away from her house.

Defendant saw Mee approaching and turned his attack to her. As he walked quickly toward Mee, neighbors heard him say something like [Y]oure going to get down on your knees. Defendant looked normal and like he knew what he was going to do. Mee ran a few more houses down, calling for help. Defendant caught up to her and hit her with the sledgehammer. He hit her on her left side, the side on which she was holding Cynthia. When Mee and Cynthia fell to the ground, Cynthia fell to the cement driveway. Defendant hit Mee again in the head. He stood and looked at Mee and Cynthia, then he aimed, recoiled, and hit Cynthia on the forehead. Mee regained consciousness and ran off.

One of the neighbor witnesses was calling 911 from inside her car when defendant looked at her and said, Do you know what she did to me? She killed my baby, hu, hu, hu, hu, hu. Still holding the sledgehammer, defendant continued after Mee. Mee tried to hide behind another neighbor and defendant walked by, appearing normal and calm.

Defendant then went back to the van and grabbed Melissa, who had gotten out with the children. Yia yelled for defendant to let Melissa go. Defendant did and then left the scene in the familys car. As he drove off, he was heard saying, This is fun and that there were more people to kill.

As defendant was leaving the scene, police pursued him. Defendant took them on a high-speed chase through residential neighborhoods, during which he barely maintained control of the car. Eventually, defendant crashed into a tree and surrendered. The sledgehammer was in the car. Defendants blood was tested and found to contain methamphetamine.

Cynthia died of blunt force trauma to her head shortly after the attack. She had two head injuries; her skull had been crushed. One of the injuries was a rectangular-shaped abrasion to the side of her head. The blow causing this abrasion had also caused skull fractures. The other wound was a large depressed injury in the center of her forehead that exposed part of her brain.

As a result of his head injuries, George underwent surgery. He ultimately died on October 13, 2004, from brain injury due to blunt force trauma. He had three wounds to his head from three separate and distinct impact points. At least two of the blows resulted in skull fractures.

Mee sustained a skull fracture and a 10-centimeter laceration to her scalp. She suffered posttraumatic seizures and, 18 months after the attack, still had headaches and dizziness. Yia sustained a cut on his head that required staples, a lump on his head, and a back injury that took several weeks to heal.

Defendant admitted taking crystal methamphetamine before the assaults and regularly using the drug at least once a week for the previous 18 months. He denied having any mental problems but stated he frequently heard the voices of his children. He heard them screaming, crying, and making noises, seeking help in Mee and Gers home. He also stated that shortly before the assaults, he had asked his family to help him find out if he could visit his children, but his family did not help him.

Defendant denied knowing the sledgehammer was in the laundry room before he grabbed it. He stated he had lost control and didnt know what else to do. He was trying to save himself because he believed everyone in the house was going to shoot him. He also believed they were bragging about killing his children. He thought Yia and George were going to shoot him. He said he hit Cynthia while he was trying to hit Mee.

Dr. Joan Gerbasi, a forensic psychiatrist, evaluated defendant and his mental state. Dr. Gerbasi opined defendant was in a state of methamphetamine-induced psychosis at the time of the attacks. She noted defendant thought his family had killed his children and that they were going to shoot him. He had auditory hallucinations and delusions at the time of the attacks. Dr. Gerbasi ruled out the possibility of defendants malingering. The jails psychiatric staff also diagnosed defendant with methamphetamine-induced psychosis.

STATEMENT OF CASE

Defendant was charged with two counts of murder (Pen. Code, 187, subd. (a) -- counts one and two), two counts of attempted murder (Pen. Code, 664/187, subd. (a) -- counts three and four), and one count of evading a peace officer (Veh. Code,  2800.2, subd. (a) -- count five). As to counts one and two, it was alleged that defendant committed multiple murders. (Pen. Code, 190.2, subd. (a)(3).) As to counts one through four, it was further alleged that defendant had personally used a dangerous or deadly weapon. (Pen. Code, 12022, subd. (b)(1).) As to counts three and four, it was alleged that defendant had personally inflicted great bodily injury. (Pen. Code,  12022.7, subd. (a), 1203.075.)

On April 6, 2006, a jury returned verdicts of guilty

on all counts and found each of the allegations true. Defendant was sentenced to life without the possibility of parole on count one, a consecutive 25-years-to-life sentence on count two, consecutive seven-years-to-life terms each on counts three and four, and a consecutive upper term sentence of three years on count five. He also received nine years for the use of a weapon and great bodily injury enhancements.

DISCUSSION

I. There Was Sufficient Evidence of Premeditation and Deliberation of the Murder of Cynthia

Defendant contends there was insufficient evidence that the murder of Cynthia Yang was committed with deliberation and premeditation. We disagree.

Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deliberate murder involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation . . . . Settled principles of appellate review require us to review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt. [Citations.] (People v. Perez (1992) 2 Cal.4th 1117, 1124.)

We begin with the legal definitions of premeditated and deliberate. In the context of first degree murder, premeditated means considered beforehand, and deliberate means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. [Citation.] The process of premeditation and deliberation does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . . [Citations.] (People v. Mayfield (1997) 14 Cal.4th 668, 767 (Mayfield).) Premeditation and deliberation require more than the reflection necessary to form the specific intent to kill. (People v. Anderson (1968) 70 Cal.2d 15, 26 (Anderson).) However, to establish this mental state, it is not necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act. (Pen. Code, 189, 4.) The act of planning -- involving deliberation and premeditation -- requires nothing more than a successive thought[] of the mind. (People v. San Nicolas (2004) 34 Cal.4th 614, 658.)

In Anderson,the Supreme Court identified three categories of evidence that have been found sufficient to sustain a finding of premeditation and deliberation: (1) facts showing planning activity, (2) facts suggesting motive, and (3) facts about the manner of killing that suggest a preconceived design. (Anderson, supra, 70 Cal.2d at pp. 26-27.) [I]t is not necessary that the Anderson factors be present in some special combination or that they be accorded a particular weight. [Citation.] (People v. Sanchez (1995) 12 Cal.4th 1, 33.) These categories are intended to provide guidance for appellate review and are not prerequisites to establishing premeditation and deliberation. (Mayfield, supra, 14 Cal.4th at p. 768.)

Applying the Anderson factors and the evidence adduced at trial in the light most favorable to the prosecution, we conclude there is sufficient evidence to support findings of premeditation and deliberation. (People v. Elliot (2005) 37 Cal.4th 453, 471.)

There is substantial evidence of planning. When defendant arrived at the home, he asked for a gun. Upon being unsuccessful in arming himself with a gun, he went to the laundry room and obtained a sledgehammer. Such actions evidenced a conscious decision to arm himself and constituted planning activity. (People v. Wharton (1991) 53 Cal.3d 522, 547.)

There is also substantial evidence of motive. Defendant believed his family members had killed his children. It was reasonable to infer his attacks were motivated by the desire for revenge. Defendant claims this motive could not have gone to Cynthia, who was only one year old and therefore could not have been a participant in killing his children. However, the jury could have inferred from the evidence that defendant sought to specifically kill Cynthia as part of his revenge. There are, after all, few principles of retributive justice as common or ingrained in our psyches as an eye for an eye.^[2] The inference that defendant sought to kill the children of his family in revenge for their killing his children is also supported by defendants repeated attempts to attack Melissa and the children in the van.

Lastly, the nature of the killing of Cynthia further supports the inference that defendant premeditated and deliberated. Defendant initially attacked George. He then went after the children in the van. Upon hearing Mee yell for help, he pursued her. He walked briskly toward her, appearing calm and normal. He struck Mee with the sledgehammer and knocked her and Cynthia to the ground. Cynthia fell out of Mees arms. After hitting Mee once more, defendant aimed and hit Cynthia again. This second blow struck Cynthia directly in the center of her forehead. This was not an accidental blow to Cynthia, it was not a blow directed at someone else, and it was not committed in the heat of a battle. This blow was intended to kill Cynthia. Defendant took the time to recoil and aim at Cynthia while she lay on the ground. It was reasonable for the jury to infer from this evidence that defendant premeditated and deliberated Cynthias murder.

Defendant suggests his methamphetamine-induced psychosis impacted his ability to actually form the requisite mental state. Defendant sought to arm himself both with a gun and then with a sledgehammer. He attacked multiple members of his family. At no point was he yelling or out of control. He repeatedly hit many of his family members, always aiming for the head and neck areas. He specifically took aim before hitting Cynthia in the middle of her forehead. Throughout the attacks, defendant appeared calm and normal, like he knew what he was going to do. From all the evidence, it was not unreasonable for the jury to infer that defendant actually premeditated and deliberated Cynthias murder, despite his ingestion of methamphetamine.

II. The Court Did Not Abuse Its Discretion in Allowing Autopsy Photographs into Evidence

Defendant contends the trial court abused its discretion in admitting seven autopsy photos of Cynthia and 14 autopsy photos of George. We are not persuaded.

The admission of photographs of a victim lies within the broad discretion of the trial court when a claim is made that they are unduly gruesome or inflammatory. [Citations.] The courts exercise of that discretion will not be disturbed on appeal unless the probative value of the photographs clearly is outweighed by their prejudicial effect. [Citations.] (People v. Crittenden(1994) 9 Cal.4th 83, 133-134 (Crittenden).) Prejudice, as referred to in Evidence Code section 352, is that evidence which uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues. [Citation.] (Crittenden, at p. 134.)

While autopsy photographs and other graphic items of evidence in murder cases are always disturbing, they are not always prejudicial. (Crittenden, supra, 9 Cal.4th at p. 134.) [P]hotographs [that are] corroborative of a witnesss testimony need not be excluded as cumulative merely because the witnesss testimony was not challenged. [Citation.] The state is not required to prove its case shorn of photographic evidence merely because the defendant agrees with a witness or stipulates to a fact. (People v. Weaver (2001) 26 Cal.4th 876, 933.) In addition, the is jury entitled to see the injuries a defendant inflicted on his victims. (Ibid.)

Here, the court carefully considered the photographs. The court noted the photographs show the nature and placement of the injuries, and the manner in which the injuries were inflicted, and thus constitute circumstantial evidence of the unlawful killing of a human being, the defendants mental state, including malice aforethought, premeditation and deliberation, and the defendants intent . . . . [] . . . [] [T]he photographs are relevant to the extent that they would tend to corroborate the testimony of witnesses in this case regarding both the circumstances of the crime, and would serve to assist the jury in understanding scientific testimony from the coroner and other medical personnel, who will undoubtedly testify in this case. [] . . . [] [T]he proposed autopsy photos, while arguably show[ing] the nature and extent of the injuries, also serve a purpose independent, in that they would clarify and corroborate the coroners testimony. [] . . . [T]hat other testimonial evidence exists does not render the physical evidence depicted in these photographs irrelevant or cumulative. In fact, they would be used to illustrate and support witness testimony. As to the issue of prejudicial effect, the court noted that while the photographs are unpleasant, . . . they are not . . . unduly gruesome or unduly shocking or inflammatory as to rise to the type of prejudice which [Evidence Code] section [352] speaks to. [] . . . [] Additionally, given that witnesses will testify to the gruesome manner and circumstances in which these alleged crimes occurred, the Court cannot find that the photographs will impermissibly sway or inflame the jury.

The court correctly delineated the probative value of these photographs. They were relevant to defendants mental state, particularly the existence of premeditation and deliberation. They were also both corroborative of eyewitness testimony and illustrative of the coroners testimony. Having reviewed the photographs, we conclude they are not unduly gory or gruesome and the trial court could properly find that each of the photographs provided sufficiently significant corroboration of lay and expert testimony as to outweigh any potential prejudice. The photographs also helped clarify the expert testimony and could assist the jury in understanding and evaluating the medical testimony. (People v. Ramos (1997) 15 Cal.4th 1133, 1170.) We therefore conclude the court did not abuse its discretion in determining that the probative value of the photographs outweighed their prejudicial effect. (People v. Welch (1999) 20 Cal.4th 701, 751.)

III. The Court Did Not Violate Defendants Sixth and Fourteenth Amendment Rights

Defendant contends the trial court violated Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] by imposing the upper term sentence of three years on count five, evading a peace officer, and also by imposing that sentence to run consecutively to the other terms imposed. We are not persuaded.

The imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (People v. Black (2007) 41 Cal.4th 799, 816 (Black II).)

The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.] [R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. [Citation.] (Black II, supra, 41 Cal.4th at p. 818.) The California Supreme Court, and numerous other jurisdictions, have interpreted the recidivism exception to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. [Citations.] (Black II, supra, 41 Cal.4th at p. 819; see also cases cited in People v.McGee (2006) 38 Cal.4th 682, 703-706.)

Here, the upper term was imposed on count five because defendant had engaged in violent conduct that indicated he was a serious danger to society, and he was on probation at the time of the crime.

Specifically, on January 10, 2003, defendant pled no contest to misdemeanor counts of battery and possession of ammunition. He was placed on three years probation.

Defendants probationary status necessarily arises from a prior conviction and relates to the fact of that prior conviction. The factors related to defendants probationary status can be determined by judicial review of court records pertaining to defendants prior convictions, sentences, and grants of probation. (Apprendi v. New Jersey (2000) 530 U.S. 466, 488 [147 L.Ed.2d 435].)

As with the number and increasing seriousness of a defendants convictions, whether defendant was on probation at the time of the offense is the type of determination more typically and appropriately undertaken by a court. [Citation.] (Black II, supra, 41 Cal.4th at p. 820.) Therefore, we believe the fact that defendant was on probation at the time of the offense is a recidivism factor arising from the fact of a prior conviction upon which the trial court may rely to impose the upper term.^[3](Cf. United States v. Corchado (10th Cir. 2005) 427 F.3d 815, 820 [the prior conviction exception extends to subsidiary findings such as whether a defendant was under court supervision when he or she committed a subsequent crime].)

The aggravating circumstance related to defendants recidivism was established consistently with Sixth Amendment principles. Accordingly, the maximum sentence that could have been imposed in this case was the upper term, and the court was permitted to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments. [Citation.] (Black II, supra, 41 Cal.4th at p. 813.)

The courts factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly, judicial fact finding on those additional aggravating circumstances is not unconstitutional. (Black II, supra, 41 Cal.4th at p. 815.)

Based on his criminal history, defendant was not legally entitled to the middle term sentence. The upper term was the statutory maximum to which he was exposed. Therefore, the courts consideration of additional aggravating circumstances, such as engaging in violent conduct that indicated he was a serious danger to society, did not raise the authorized sentence. Rather, it was an appropriate consideration in the exercise of the courts sentencing discretion.

As for the imposition of consecutive sentences, [t]he high courts decision in Cunningham does not call into question the conclusion . . . previously reached regarding consecutive sentences. The determination whether two or more sentences should be served in this manner is a sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense and does not implicate[] the defendants right to a jury trial on facts that are the functional equivalent of elements of an offense. [Citation.] (Black II, supra, 41 Cal.4th at p. 823.) Accordingly, as the California Supreme Court has concluded, defendants constitutional right to jury trial was not violated by the trial courts imposition of consecutive sentences. (Ibid.)

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

DAVIS, Acting P.J.

CANTIL-SAKAUYE , J.

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^[1] For clarity, first names are used to identify the witnesses and victims in this case as many individuals have similar, if not identical, surnames. No disrespect is intended.

^[2] As defendant notes, this motive was mentioned by defendant himself to Dr. Schaffer. It came in as part of the basis of Dr. Gerbasis opinion and not for the truth of the matter asserted. However, even without this statement, the jury could have reached this inference on its own because this retributive principle is so common.

^[3] We note this precise issue is currently pending before the California Supreme Court in People v. Towne, review granted July 14, 2004, S125677.