P. v. Chen





Filed 1/28/11 P. v. Chen CA2/1




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. JASON PAI CHEN, Defendant and Appellant.

B217419 (Los Angeles County Super. Ct. No. KA083387)

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles E. Horan, Judge. Affirmed.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Beverly K. Falk and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
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SUMMARY
A jury convicted defendant and appellant Jason Chen of first degree murder. Appellant contends (1) there is insufficient evidence of premeditation and deliberation to sustain his conviction, (2) the trial court erred by failing to instruct the jury on the lesser included offense of voluntary manslaughter based on sudden quarrel or heat of passion, and (3) the court erred further by refusing to instruct the jury that a witness testifying under a grant of immunity was an accomplice whose testimony should be viewed with caution. We find no merit in any of these contentions and affirm.
PROCEDURAL BACKGROUND
In a single-count information, appellant was charged with murder, in violation of Penal Code section 187, subdivision (a).^[1] The information also alleged that appellant personally and intentionally discharged a firearm, causing death (§ 12022.53, subds. (b), (c) & (d)), that the offense was a serious and violent felony (§§ 1192.7, subd. (c), 667.5, subd. (c)), and that he had served a prior prison term (§ 667.5, subd. (b)).^[2] Appellant pleaded not guilty, and denied all allegations.
A three-day trial was conducted, during which only the prosecution offered evidence. The jury convicted appellant of first degree murder, and found true the allegation he personally and intentionally discharged a firearm proximately causing death. Appellant was sentenced to an indeterminate sentence of 50 years to life in state prison, consisting of 25 years to life for the murder, and 25 years to life for one firearm allegation (§ 12022.53, subd. (d)). Sentences as to the other sustained firearm allegations (§12022.53, subds. (b) & (c)), were stayed.
FACTUAL BACKGROUND
In January 2008, David Hoang and his friend Tahn Hai Cong went to visit appellant at an El Monte motel where appellant and his mother resided. Hoang, who was 25 years old at the time of trial, had known Cong since the two of them were about 16 years old and members of the same “Wah-Ching” gang. By January 2008, neither man had been associated with the gang for over two years. Hoang had known appellant since appellant was about 13 years old; appellant had also been a member of the Wah-Ching gang. Hoang and appellant had lost touch for about a year, but had resumed contact in late 2007.
Hoang knew appellant had “always disliked” Cong; their problems went “way back.” Appellant viewed Cong as a “hood hopper,” viz., someone who moved from gang to gang, an activity that demonstrated disrespect for a gang. Appellant also disliked and found annoying Cong’s jokes and attitude. Appellant was also irritated by Cong’s persistent attempts to “spar” with appellant. Sometime in mid-January, about a week before the shooting, appellant invited Hoang to visit him at the motel. When appellant learned Hoang was with Cong, appellant told Hoang to bring him along, and said he had no problem with Cong. During that visit, the three men drank beers and talked for about 40 minutes. Hoang did not observe problems in any interaction between appellant and Cong.
On the evening of January 19, 2008, appellant called Hoang and told him he had been disciplined by “a couple of homies from the hood” with whom he was having problems. He said he needed someone to talk to. Hoang told appellant he was with Cong; appellant told Hoang to bring him along. Cong and Hoang drove over in Cong’s car. They stopped on the way to buy beer to share with appellant, although no one drank any after they arrived. After they arrived at the motel and knocked on his door, it took a while for appellant to emerge. After he did, Hoang, Cong and appellant stood in the parking lot talking and “joking around.” Hoang said appellant seemed very irritated by some of Cong’s comments, and Cong “calling him out to box for fun,” as he had done in the past.
After Hoang, Cong, and appellant had been standing around for about 10 minutes, Steven Chen drove into the motel parking lot. Long Tran was sitting in the passenger seat. Chen, appellant, and Tran had known one another for about two years and used to “hang out.” Tran was a member of the Wah-Ching gang, but Chen was not. Appellant had called Chen and Tran at about midnight and asked them to drive him to a party. Chen saw appellant standing in the parking lot with Cong, whom Chen knew, and another man (Hoang) whom he did not know. Chen did not turn off the engine of his car because he planned to pick up appellant and leave.
Tran stepped out of the car, said hello to appellant and told him to get in. Appellant refused, and told Tran and Chen to leave. Appellant lifted his shirt and flashed a gun at Tran that was tucked into appellant’s waistband. Tran assured appellant he was not afraid of the gun, said he had his own and told appellant to get into the car. He also said, “‘if you’re going to pull the trigger, pull it. If you’re going to do something, do it.’” Tran then said, repeatedly, “‘he’s not going to do nothing. He’s not going to do nothing.’”
At that point, appellant pulled the gun from his waistband and pointed it in the direction of Hoang and Cong. Hoang ran away. Appellant began to chase Cong around the parking lot and some parked cars, firing his gun at him. Hoang heard appellant call Cong a “fucking bitch.” He also heard Cong tell appellant that he was “sorry,” and beg for mercy. Appellant pursued Cong around a car and Cong, who had already been shot, fell to his knees. Appellant stood over Cong and continued to fire at his head. Hoang heard appellant shoot until he emptied the entire clip, and then heard him keep “shooting blanks.” Hoang also thought he heard Chen and Tran laughing in the car, although Chen denied either of them had laughed.
When the shooting began, Steven Chen, whose car had remained in the middle of the parking lot, began backing up. He testified the shooting came as a surprise to him and he wanted to leave without appellant. But, when appellant ran over to Chen’s car Chen stopped backing up; appellant had a gun and Chen was afraid. Tran opened the door to let appellant into the back seat. Appellant’s mother ran out of the motel, screaming (in Taiwanese), “‘What happened‌ What happened‌’” She went back into the motel as Chen drove off with Tran and appellant.
Chen drove appellant (who still carried the gun) to a friend’s house in Orange County. On the way there, Chen asked appellant why he had done what he did. Appellant told him it involved a “money issue,” and also a long-held “grudge” against Cong with whom he had “got[ten] into a fight when they were younger.” After a couple of hours, Chen left alone. When he got home, Chen told his parents what had happened. They hired an attorney who advised Chen to contact the police. Chen did so, and was eventually given use immunity in the prosecution of this action.
The police officer who responded to the scene of the shooting found Cong lying on the ground, covered in blood.
Homicide Detective Gean Okada of the Los Angeles Sheriff’s Department (LASD), was assigned to supervise the investigation. At the scene, Detective Okada observed five empty shell casings, five live rounds, some bullet fragments, and some of the victim’s clothing as well as a few unopened cans of beer. Detective Okada interviewed Hoang the same morning as the shooting, and spoke with Chen when he contacted the police a few days later. Appellant was arrested about nine months after the shooting.
The forensic pathologist who performed the autopsy on Cong found six gunshot wounds. He opined Cong died as a result of multiple gunshot wounds.
LASD Forensic Firearms Examiner David Kim testified that he examined five unfired/live nine-millimeter Luger caliber cartridges, five fired nine-millimeter Luger caliber cartridge cases, two fragments of fired bullets, and the bullet recovered from the coroner. He opined that the fired cartridge cases had each been fired by the same firearm. Deputy Kim also testified the three bullet fragments were fired from a single gun. However, Deputy Kim did not have the gun and was not able to determine whether the fired cartridge cases and the bullet fragments were fired from the same weapon. Deputy Kim also testified that, when the slide of a gun is pulled back sharply without the trigger being pulled, an unfired cartridge will be thrown out. In addition, if a gun is not held firmly when fired, it can jam. If the slide is pulled back at that point, it can eject a live round.
DISCUSSION
1. Appellant’s conviction of first degree murder.
Appellant maintains there is insufficient evidence of premeditation and deliberation to sustain his conviction for first degree murder. We disagree.
a. Standard of review
Appellant contends that his first degree murder conviction must be reduced to second degree murder because insufficient evidence supports the jury's finding of premeditation and deliberation. He reasons that the evidence is insufficient to establish beyond a reasonable doubt that he acted with premeditation and deliberation in killing Cong and that, as such that the jury's verdict violated his due process rights. (U.S. Const., 14th Amend.)
Our role, faced with a question of the sufficiency of evidence to support appellant's first degree murder conviction, is limited and well settled. (People v. Smith (2005) 37 Cal.4th 733, 738.) “‘In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Story (2009) 45 Cal.4th 1282, 1296; People v. Snow (2003) 30 Cal.4th 43, 66 (Snow).) We determine whether substantial evidence supports the jury's verdict, not whether evidence proves the disputed issue beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318–319; Snow, at p. 66.) The same standard applies when a conviction rests on circumstantial evidence. (People v. Brady (2010) 50 Cal.4th 547, 561 (Brady).)
b. Substantial evidence supports appellant’s conviction for first degree murder.
“A murder that is willful, deliberate, and premeditated is murder in the first degree. (§ 189.) ‘“‘Deliberation’ refers to careful weighing of considerations in forming a course of action; ‘premeditation’ means thought over in advance. [Citations.] ‘The process of premeditation . . . 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.]’”’” (Brady, supra, 50 Cal.4th at p. 561.)
“‘“‘An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.’ [Citation.] A reviewing court normally considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported—preexisting motive, planning activity, and manner of killing—but ‘[t]hese factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation.’”’ [Citation.] These three factors, however, are merely a framework for appellate review; they need not be present in some special combination or afforded special weight, nor are they exhaustive.” (Brady, supra, 50 Cal.4th at pp. 561–562.)
Here, the totality of the evidence as to appellant’s motive, the planning activity in which he engaged and the manner in which he killed Cong is sufficient to support the jury's verdict.
As for evidence of a motive for the murder, the record reveals that appellant had harbored a lengthy and strong dislike for Cong. Appellant told Chen he had a grudge against Cong that had evolved out of a fight the two had gotten into years before, and told Hoang he disliked Cong because he was a “hood hopper.” There is also evidence Cong engaged in behavior (like joking and trying to spar with him) that continued to irritate appellant up until the night Cong was killed. During the shooting Hoang heard Cong beg appellant for mercy and tell him he was “sorry.” Appellant responded by calling Cong a “fucking bitch.”^[3] Appellant told Chen that, in addition to the long-held grudge, he also shot Cong because of a “money issue.” Viewed in its totality, the evidence demonstrates appellant had a motive to murder Cong.
There is also evidence that appellant engaged in planning activity. He called Hoang and invited him and Cong to come over under the ruse that he needed to talk to someone after having been disciplined by gang members. They planned to drink beer together, but appellant refused to drink after Hoang and Cong arrived. In the meantime, appellant called Chen and Tran and arranged for them to come over to pick him up, supposedly to drive him to a party. Appellant took some time to answer his door after Hoang and Cong arrived, and did not invite his guests to come in. Instead, he came outside to meet them, armed with a loaded handgun concealed under his shirt. Appellant stood talking with Hoang and Cong until Chen and Tran arrived. Only after Tran and Chen drove up in the “getaway car,” did appellant flash his gun and begin to shoot.
Finally, there is ample evidence to support appellant’s conviction based on the grisly and deliberate manner in which Cong was killed. After appellant began shooting and Cong began to run, appellant continued to pursue and shoot at him as he traversed the parking lot. Appellant continued shooting at Cong’s head even after Cong had fallen to the ground, wounded, apologizing and begging for mercy. Appellant shot Cong at least six times and—as evidenced by Hoang’s testimony that he heard the gun continue to fire after appellant was only shooting “blanks”—didn’t stop shooting even after he ran out of ammunition.
In sum, the record contains ample evidence demonstrating appellant had a preexisting motive, planned the attack, and engaged in a particularly gruesome method of killing. Accordingly, there is sufficient evidence of premeditation and deliberation to support the jury’s verdict of first degree murder.
2. Failure to instruct on voluntary manslaughter as a lesser included offense
The trial court instructed the jury on the principles of first degree premeditated murder, and second degree murder, including implied malice. (CALJIC Nos. 8.10, 8.11, 8.20, 8.30, 8.31 & 8.70.) Appellant did not request an instruction on voluntary manslaughter, and none was given. Appellant posed no objections to the court’s proposed instructions, and declined to request any additional instructions. Appellant contends the trial court erred in failing to instruct the jury sua sponte on voluntary manslaughter. Specifically, he argues that the evidence presented at trial would have supported an instruction premised on the theory of sudden quarrel or heat of passion. Appellant is mistaken.
“[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support.” (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman); People v. Avila (2009) 46 Cal.4th 680, 704–705.) Evidence is substantial for this purpose if it would cause a reasonable jury to conclude that the defendant committed the lesser but not the greater offense. (Breverman, at p. 162.) We apply a de novo standard of review to the trial court's failure to instruct on an assertedly lesser included offense. (People v. Licas (2007) 41 Cal.4th 362, 366; People v. Cole (2004) 33 Cal.4th 1158, 1215 (Cole).)
“Voluntary manslaughter is a lesser included offense of murder. [Citation.] One form of the offense is defined as the unlawful killing of a human being without malice aforethought ‘upon a sudden quarrel or heat of passion.’ [Citation.]” (Cole, supra, 33 Cal.4th at p. 1215.) To trigger the trial court's duty to instruct on voluntary manslaughter under a heat of passion theory, there must be substantial evidence of both provocation and heat of passion. (People v. Steele (2002) 27 Cal.4th 1230, 1252.) The “‘heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances.’” (Ibid.)
Voluntary manslaughter committed under a heat of passion has both an objective and a subjective component. (People v. Moye (2009) 47 Cal.4th 537, 549 (Moye).) The objective component requires that the heat of passion arises from sufficient provocation, that is, the provocation must be such as to cause an ordinary person of average disposition to act rashly or without due deliberation or reflection. (People v. Lujan (2001) 92 Cal.App.4th 1389, 1411–1412.) The subjective component requires the defendant to have been “under ‘the actual influence of a strong passion’ induced by [adequate] provocation.” (Moye, at p. 550.) The burden to set forth sufficient evidence of heat of passion rests with the defendant. (People v. Sedeno (1974) 10 Cal.3d 703, 719, overruled on other grounds by Breverman, supra, 19 Cal.4th at p. 149.)
In Moye, supra, 47 Cal.4th at pages 540 to 541, our Supreme Court held that the trial court did not err by instructing on reasonable and unreasonable self-defense voluntary manslaughter, but refusing to instruct on heat of passion voluntary manslaughter. In that case, the defendant testified that after a fight with the victim the night before, he met up with the victim, who kicked his car. He chased the victim, who held a bat, and managed to grab the bat after the victim hit him on his arms and hands. He claimed that he met each of the victim’s advances with a defensive swing of the bat until the victim fell to the ground and could no longer attack him. (Id. at p. 552.) The court held that no reasonable juror could conclude that the defendant acted rashly or without due deliberation and reflection, and from passion rather than judgment, in light of the defendant's testimony he acted deliberately in seeking to defend himself from each successive advance by the victim. (Id. at pp. 553–555.) The Supreme Court has also held that the defense of manslaughter is unavailable to a defendant who engages in mutual combat but takes undue advantage by using a deadly weapon. (People v. Lee (1999) 20 Cal.4th 47, 60, fn. 6.) The passion that reduces a killing to manslaughter can never be revenge. (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704 [“the desire for revenge does not qualify as a passion that will reduce a killing to manslaughter”].)
On this record, we conclude there was no substantial evidence that would have caused a reasonable jury to conclude appellant committed voluntary manslaughter rather than murder.
Hoang testified that he and Cong spent several uneventful minutes chatting with appellant before Chen and Tran arrived. Although appellant appeared irritated by some of Cong’s comments and antics, nothing Cong or appellant did or said alerted Hoang to the possibility of the violent onslaught that ensued. After Chen and Tran arrived, appellant calmly displayed his previously hidden gun to Tran and told him to leave. Only after Tran told appellant that, if he was “going to pull the trigger,” he should “pull it,” did appellant turn toward Cong, draw his gun and begin to shoot. Appellant shot Cong and chased him around cars, continuing to shoot at him at point-blank range even after Cong fell wounded to the ground, apologizing and begging for mercy. From an objective standpoint, nothing in the record reflects any statement by or act on behalf of Cong sufficiently provocative to have roused a person of ordinary disposition to act rashly or without due deliberation or reflection. (Lujan, supra, 92 Cal.App.4th at pp. 1411–1412.) Similarly, viewed from a subjective perspective, the sequence of events prior to the shooting, according to Hoang’s testimony, demonstrates there is insufficient evidence appellant killed Cong in the heat of passion required for voluntary manslaughter.
3. Failure to give accomplice instructions
Appellant’s final contention is that the trial court erred when it failed to instruct the jury that Chen was an accomplice whose testimony should be viewed with caution. We conclude otherwise.
The trial court expressly considered—and rejected—the issue of whether to give accomplice instructions. Specifically, it noted:
“The record should reflect I’ve considered the issue of accomplice instructions, but truthfully, I don’t believe there’s any evidence from which a . . . reasonable juror could find by a preponderance that anybody in the case was an accomplice to the crime, given the testimony we’ve heard.
“There are some inferences and some sort of suspicious circumstances surrounding some of the activities of the witnesses, but nothing that I could point to that would rise to the level of, yes, that person is an accomplice to the crime; therefore their testimony needs corroboration. Obviously no witness admits participation.
“The only thing that one could point to that somebody could be prosecuted for based on the state of the record . . . would be probably [Penal Code] 32 . . ., harboring or taking somebody from the scene of the crime. There’s cases that indicate simply being guilty of an accessory after the fact does not make one an accomplice to the crime . . . .
“I don’t see the need for any accomplice instructions.”
The trial court then invited both sides to comment; neither did. As noted above, appellant’s counsel did not voice any objections to the proposed instructions, and did not request that accomplice or any other additional instructions be given.
If there is evidence a witness against the defendant is an accomplice, the trial court must give jury instructions defining “accomplice,” and instruct both that an accomplice's incriminating testimony be viewed with caution and be corroborated. (See e.g., CALJIC Nos. 3.10–3.19.) If the evidence establishes the witness is an accomplice as a matter of law, the court must so instruct the jury; otherwise, it must instruct the jury to determine whether the witness is an accomplice. (People v. Hayes (1999) 21 Cal.4th 1211, 1270–1271 &1271, fn. 17 (Hayes); see also People v. Zapien (1993) 4 Cal.4th 929, 982.)
An accomplice is a person “‘who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.’ [Citations.]” (People v. Arias (1996) 13 Cal.4th 92, 142–143, quoting § 1111.) “In order to be an accomplice, the witness must be chargeable with the crime as a principal [citation] and not merely as an accessory after the fact [citations]. [Citation.]” (People v. Sully (1991) 53 Cal.3d 1195, 1227 (Sully).) A principal includes one who directly commits the act constituting the offense, and one who aids and abets in its commission, but does not include an accessory. (§§ 31, 32.) “‘An aider and abettor is one who acts with both knowledge of the perpetrator’s criminal purpose and the intent of encouraging or facilitating commission of the offense.’” (People v. Richardson (2008) 43 Cal.4th 959, 1023 (Richardson).) In contrast, an accessory is a person who, after a felony has been committed, harbors, conceals or aids a principal in the felony. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103.)
Here, the court did not err by deciding against giving accomplice instructions. The record contains no evidence Chen was an accomplice to murder. The only evidence offered was that Chen went to the motel planning only to give appellant a ride to a party. No evidence was offered that Chen had any advance knowledge of appellant’s criminal intent, or that Chen did anything once he arrived at the motel to facilitate the shootings. When he arrived at the motel, Chen stayed in his car. He never spoke to appellant, Hoang or Cong. When the shooting began, Chen was surprised and started to drive away, intending to leave without appellant. He stopped, however, when appellant came running toward him, because appellant was armed and Chen was afraid. Chen then drove appellant to a friend’s house, and left after a couple of hours. Chen had no further contact with appellant. On this record, the trial court correctly concluded there was no evidence Chen was an accomplice to the murder; at most, as the “getaway driver,” he was an accessory after the fact. Chen’s mere presence at the scene of the crime or his failure to prevent its commission, is not sufficient to establish his role as an aider and abettor. (Richardson, supra, 43 Cal.4th at p. 1024.) To “be an accomplice, the witness must be chargeable with the crime as a principal (§ 31) and not merely as an accessory after the fact (§§ 32, 33).” (Sully, supra, 53 Cal.3d at p. 1227.) In a case such as this, in which the facts are not in dispute, the issue is a legal one to be determined by the court. (Hayes, supra, 21 Cal.4th at pp. 1270–1271.) Where undisputed evidence establishes as a matter of law that the witness is not an accomplice, the court does not err in refusing to charge that he is or in refusing to submit the issue to the jury. (People v. Hoover (1974) 12 Cal.3d 875, 880.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.

JOHNSON, J.

We concur:

ROTHSCHILD, Acting P. J.

CHANEY, J.

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