Filed 8/10/26 P. v. Douangkham CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or or dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F088291
Plaintiff and Respondent,
(Super. Ct. No. 1441875)
v.
CHRIS DOUANGKHAM,
OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A.
McFadden, Judge.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Dina Petrushenko and
Darren K. Indermill, Deputy Attorneys, General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
In 2021, a jury convicted appellant Chris Douangkham for murders that occurred
in 2011. Appellant was convicted of three counts of first degree murder (Pen. Code,
§ 187, subd. (a);1 counts 1–3), and the jury found true four special circumstance
allegations: (1) lying in wait (§ 190.2, subd. (a)(15)); (2) multiple murders (id.,
subd. (a)(3)); (3) murder in the commission of robbery (id., subd. (a)(17)(A)); and
(4) murder in the commission of burglary (id., subd. (a)(17)(G)). For each of the three
murders, the jury found true that appellant was a principal in the offense and at least one
of the principals personally and intentionally discharged a firearm that proximately
caused death to a person other than an accomplice (§ 12022.53, subds. (d) & (e)(1)).
Appellant was also convicted of committing robbery (§ 211; count 4) and burglary
(§ 459; count 5).
Appellant, who was 16 years old when he committed these crimes in 2011, was
tried alone; however, he was with two other teenagers—Oloth Dicky Phommahaxay
(hereinafter Dicky) and S.T.—when these crimes occurred. In 2011, Dicky was 18 years
old and S.T. was 15 years old.
For the robbery conviction, appellant received a determinate prison sentence of
three years, which was stayed. The burglary sentence of eight months was stayed.
Because of the special circumstance findings attached to the three first degree murder
convictions, appellant received three consecutive sentences of life without the possibility
of parole (LWOP). Finally, he received an additional and consecutive 50 years to life for
firearm enhancements (§ 12022.53, subd. (d)) in counts 2 and 3.
Appellant raises a variety of claims on appeal, and some of his arguments have
merit. We agree with the parties that multiple instructional errors occurred, but we
conclude those errors were harmless beyond a reasonable doubt as to the three first
1 All future statutory citations are to the Penal Code unless otherwise noted.
2.
degree murder convictions and the felony-murder special circumstance findings. We
therefore affirm the three murder convictions (§ 187, subd. (a); counts 1–3) and the
robbery- and burglary-murder special circumstance findings (§ 190.2, subd. (a)(17)(A),
(G)).
However, we agree with appellant that the instructional errors were prejudicial
regarding the multiple-murder (§ 190.2, subd. (a)(3)) and lying-in-wait (id., subd. (a)(15))
special circumstance findings attached to counts 1, 2 and 3. We reverse those findings,
but the prosecution may retry these special circumstance allegations.
We also agree with the parties that the firearm enhancements found true as to
counts 1, 2 and 3 (§ 12022.53, subds. (d), (e)(1)) must be reversed due to prejudicial
error, including pleading deficiencies and insufficiency of the evidence. Retrial of the
firearm enhancements is barred by principles of double jeopardy.
We reject appellant’s claim that the trial court abused its discretion when denying
his motion for new trial based on alleged prosecutorial misconduct.
Finally, we agree with appellant that the trial court erred by denying his renewed
motion for a transfer hearing in juvenile court under Welfare and Institutions Code
section 707 as amended by Assembly Bill No. 2361 (2021–2022 Reg. Sess.) (Assembly
Bill 2361). Accordingly, we conditionally reverse the judgment and remand the matter
with directions to refer the case to the juvenile court for a transfer hearing under current
law.
If the juvenile court determines transfer to adult criminal court is not warranted,
the juvenile court shall conduct further proceedings under the juvenile law. If the
juvenile court determines transfer is warranted, the matter shall be returned to the
criminal court. In that event, the affirmed convictions and felony-murder special
circumstance findings shall be reinstated, the prosecution may retry the special
circumstance allegations of multiple-murder and lying in wait, but the firearm
3.
enhancements shall remain stricken. The adult criminal court shall resentence appellant
after any further proceedings.
Accordingly, the judgment is reversed in part and conditionally reversed with
directions.2
BACKGROUND
We summarize the relevant facts pertinent to the issues raised on appeal, viewing
the record in the light most favorable to the judgment. (See In re Jesus O. (2007)
40 Cal.4th 859, 861; People v. Johnson (1980) 26 Cal.3d 557, 578.)
I. An Overview of the Evidence.
These murders occurred on the afternoon of January 25, 2011, when appellant was
16 years old.3 In general, the evidence established that appellant, Dicky and S.T. entered
an Asian market in Stanislaus County with the intent to rob it. After entering the store,
three victims were shot to death. Appellant, Dicky and S.T. fled together in a vehicle.
They were all arrested together a short time later that same afternoon.
A single firearm, a .22-caliber rifle, was used in these murders. The rifle’s stock
had been cut off, making it more like “a pistol-type rifle.” Shortly before law
enforcement found them, Dicky had dropped off this rifle with his cousin. Law
enforcement eventually recovered the rifle.
The evidence did not establish who actually fired the fatal shots. No surveillance
cameras were inside the store. The prosecutor argued to the jurors that appellant must
2 At sentencing, the trial court orally stayed the sentences in counts 4 and 5. The
determinate abstract of judgment, however, erroneously fails to show that the sentence in
count 4 (robbery) was stayed. In light of our disposition that remands this matter for
further proceedings, including a possible full resentencing in adult criminal court, we do
not further address the clerical mistake in the determinate abstract of judgment.
3 Substantial delays occurred in this prosecution. The first witness in appellant’s
trial was called to testify over 10 years after these murders occurred.
4.
have been a shooter at some point but also admitted it was possible appellant never fired
a firearm during this incident.
II. The Murder Victims.
The three victims in this matter were family members who owned and operated
the store. Vanh Thammavongsa was shot to death inside the store near its front door. He
was shot three times, and any of the shots could have been fatal. None of the gunshot
wounds showed evidence of a “close-range firing.”
Vanh’s wife, Phouvieng Thammavongsa, was shot to death in the back of the store
in a separate room. She suffered approximately five gunshot wounds. The evidence
showed that the shooter fired from a distance greater than 18 inches from her.
Vanh and Phouvieng’s adult daughter, Nancy, was shot in an upstairs loft. Nancy
suffered a single gunshot wound to her face that exited her head. She was rushed to a
hospital but there was little that could be done for her, and she died from her gunshot
wound. There was no evidence of a “close-range firing.”
At trial, appellant admitted that he knew the victims, and his parents had been
friends with them.
III. The Arrests and Physical Evidence.
Law enforcement was summoned to the Asian market at about 1:53 p.m. At about
2:15 p.m., law enforcement personnel were notified to look for the suspects’ vehicle that
was seen leaving the scene. A short time later, an officer spotted a vehicle that he
believed matched the description and a traffic stop was initiated. Appellant, Dicky and
S.T. were in that vehicle, and Dicky was driving. The suspects were taken into custody
less than an hour after law enforcement became involved in this murder investigation.
Nancy’s blood was discovered on S.T.’s jeans. In the vehicle, officers found
various food items with Asian writing on the packaging, 40 prepaid calling cards, a
wooden “club” or “stick” wrapped in black duct tape, and a plastic shopping bag full of
5.
coins.4 A relative of the decedents testified at trial that the Asian market sold similar
Asian candies and phone cards with Asian writing, both of which were kept at or near the
cash register.
Appellant, Dicky and S.T. each had gunshot residue (GSR) particles on them.
These particles suggested that appellant either recently fired a gun or touched something
that had GSR particles on it, or was standing in a three to 10-foot vicinity behind or to the
side when someone else discharged a firearm, or was standing in front of a firearm that
was discharged no more than 50 feet from him.
Appellant did not have particles on his hands “characteristic of” GSR, but he did
have particles that were “consistent with” GSR, which could not be distinguished from
environmental sources. Appellant had two barium-lead particles on the back of his right
hand, one antimony-lead particle on the index webbing of his right hand, and one
antimony-lead particle on the index webbing of his left hand.
S.T. had particles “characteristic[] of” GSR on the webbing of each hand. Dicky
had no characteristic GSR on his hands, only particles “consistent with” GSR, which
could not be distinguished from environmental sources.
The three murder victims were collectively shot nine times. Law enforcement
recovered nine different .22-caliber casings at the scene. The recovered rifle had two live
rounds in the magazine. Four more spent .22-caliber casings were recovered in the
suspects’ vehicle. Testing showed that the rifle had fired 11 of the 13 recovered cartridge
cases. The rifle “most likely” fired two of the five bullets recovered from the decedents,
but the remaining evidence was inconclusive due to damage or insufficient markings.
The parties stipulated that no fingerprints were discovered on the recovered rifle or
its magazine.
4 A beanie cap—referred as a “snow cap”—was recovered from the suspects’
vehicle. A witness saw one of the suspects wearing this cap in the furniture store before
the robbery. S.T.’s DNA was on that cap and appellant was excluded as a DNA
contributor. According to appellant at trial, S.T. was wearing this cap during the robbery.
6.
IV. The Eyewitness Identifications.
Before appellant, Dicky and S.T. entered the Asian market to rob it, they first
discussed their robbery plan while inside an adjacent furniture store. While in the
furniture store, they appeared nervous, and they repeatedly looked out the window
towards the Asian market.
At trial, the witness accounts varied regarding how long the three teenagers waited
in the furniture store before they initiated the robbery at the adjacent Asian market. The
jury was told that they waited in the furniture store for at least 10 minutes and perhaps as
long as about one hour.
When they left the furniture store, the three teenagers drove their vehicle closer to
the Asian market. They were inside the Asian market for about 10 minutes. People
inside the furniture store heard “an explosion” or a “big bang.” The three suspects were
seen driving away.
After appellant, Dicky and S.T. were arrested that same day, witnesses from the
furniture store participated in a field showup. The vehicle in which appellant was riding
when arrested was positively identified as the vehicle used in this crime. One witness
was 80 percent sure that appellant had been one of the suspects seen in the furniture store,
and another witness was 70 percent sure that appellant had been there. However, a third
witness could not identify appellant as one of the suspects.
V. Appellant’s Interview with Law Enforcement.
Law enforcement interviewed appellant after midnight on the night that these
murders occurred. During that interview, he repeatedly lied. Appellant initially claimed
that he was never in the market. He then claimed that some unknown male in a black
mask had committed these shootings. He later claimed that he did not know anything
about a robbery and denied knowing about a gun.
Later in his police interview, appellant admitted that he entered the store with
Dicky and S.T. with the intent to commit a robbery. He admitted that each boy had a
7.
specific task, and his job was to “beat the people in the store” using a “stick” or
something similar. However, appellant said he just used his hand during the robbery
because he did not bring anything with him to use.
At trial, appellant admitted that he told a detective during this interview that the
purpose of going into the Asian market was “ ‘to rob them,’ ” and he further admitted at
trial that Dicky had said “ ‘they were going to go shoot somebody.’ ”
The jury was told that law enforcement personnel had used “ruse[s]” or given false
information to the suspects to elicit information from them in their separate interviews.
At trial, a detective testified that appellant had been cocky and arrogant throughout his
interview with police. At one point, appellant had said that human life “wasn’t important
to him.”
Appellant admitted at trial that, during his interview, he had been asked several
times about the victims, and he had repeatedly said he did not care about them.
VI. Appellant’s Recorded Conversations with Dicky and S.T.
While in police custody on the night of these murders, appellant and S.T. were left
alone together in a room, and they were secretly recorded. Dicky was later placed in the
same room with the others.
Appellant told S.T. that he had tried to keep his story the same as Dicky’s version.
Appellant had heard Dicky say that he (appellant) was “behind” Dicky “when we were
shooting.” Appellant disputed that version when speaking with S.T., saying, “[H]ow I’m
[sic] supposed to be behind you when you ran out the door first .…”
Appellant made numerous incriminating statements during his recorded
conversation. He acknowledged hearing multiple gunshots during the incident.
Appellant referred to himself hitting one victim, saying she “just died. The one that I hit
bro.” He later asked, “Did you see me lay her out with one hit though?”
8.
At one point when speaking with S.T., appellant stated that “Dicky missed all the
shot” and “[t]hat [N-word] missed bro.” A short time later, appellant acknowledged that
Dicky “shot that bitch” next to him and gunpowder was “all over me.”
During his recorded conversation with S.T., appellant discussed the bullets used in
these murders, calling them “[o]ur bullets. Mine and Dicky’s.” Appellant noted that
11 shells had been used in this crime, stating that law enforcement was “missing two of
mine.”
During their recorded conversation, appellant and S.T. argued over the order of
their flight from the store. Each thought that they had been the last to leave.
The three teenagers discussed moving the firearm. Regarding prints on the gun,
Dicky whispered that “[a]ll of them are gone though.” Both appellant and S.T. responded
affirmatively.
VII. Appellant’s Trial Testimony.
At trial, appellant denied being a shooter and claimed Dicky had been the sole
shooter. Appellant admitted to the jury that he had repeatedly lied to law enforcement,
claiming he had been afraid of both the officers and of Dicky.5 Appellant stated he had
been “foolish” during his police interview because he was “young at the time.”
Appellant claimed that, during this robbery, Dicky told S.T. to go upstairs into the
loft to take care of the girl, and S.T. did so. Appellant agreed that S.T. was in the loft
when Nancy was shot.
Appellant claimed to the jury that he had repeatedly told Dicky that he did not
want to participate in a robbery. At trial, he admitted that, before these crimes occurred,
he and Dicky had discussed committing this robbery while waiting in the furniture store.
5 A retired detective testified that appellant never claimed during his interview that
he was afraid of Dicky. The retired detective also testified that there was nothing in the
interactions among appellant, Dicky and S.T. that suggested to law enforcement that
appellant was afraid of Dicky.
9.
When inside the furniture store, appellant had spotted his uncle outside the Asian market.
Appellant admitted at trial that they waited until his uncle left before they went into the
market.
At trial, appellant agreed that he went along with the plan so that Dicky and S.T.
would not “get caught by themselves.” He told the jury that his plan inside the Asian
market was to buy oysters, which he knew were kept in a freezer in the back of the store.
Appellant testified that, after he entered the Asian market, Dicky showed appellant that
he had a gun tucked in his pants and Dicky again asked appellant to help him commit a
robbery. Appellant claimed that he again refused.
Appellant testified that he walked to the back of the store to look for oysters and
he was speaking with the female owner when he heard shooting. He claimed that he saw
Dicky coming down an aisle, shooting in his direction. According to appellant, the
female owner grabbed him, and he believed she was trying to use him as a shield. He
told the jury that he pushed and then slapped her with his hand because he “didn’t want to
get shot.”6
On cross examination, appellant admitted that, after learning of the plan to rob, he
still went into the Asian market. He admitted that, after leaving the furniture store, he
knew the intent was to rob the Asian market. He acknowledged at trial that he never
warned the store owners, despite knowing that Dicky had a gun and despite Dicky having
said he was going to do “some sort of shooting.” Appellant admitted at trial that Dicky
told him “right after” they entered the Asian market that the “purpose of going in there
was to shoot somebody.”
6 The parties stipulated that appellant had always maintained to his counsel that he
had not fired any shots, and appellant had always maintained that the “hit” was a slap
with his hand and not a gunshot. This stipulation was given as a curative measure
following alleged prosecutorial misconduct, which we address in greater detail in
part III., post, of this opinion.
10.
Appellant admitted that, during his police interview, he had claimed to be
approximately 15 to 20 feet from the female owner when she was shot but, in reality, he
was within two to three feet from her when she was shot. He admitted that, after Dicky
began shooting, he never attempted to help the female owner escape from the back of the
store.7 Appellant admitted that he had known law enforcement had evidence on him, and
they would find GSR on him.
The prosecutor confronted appellant with his statements from the covertly
recorded conversation with S.T. Appellant admitted telling S.T. that police were
“missing” two of his shell casings and that his and Dicky’s “hands” were “all over the
bullets.” Appellant admitted believing his handprints were on the gun, but he also
claimed at trial that he never touched that gun. He said he made that prior statement
because he had been “talking reckless” during that recorded conversation and he had
learned details about the crime from the detectives during his interrogation.
Appellant admitted telling police that his “job” had been to “beat the people in the
store up with a stick or something,” but claimed on redirect that he only acquiesced to
this version of facts after a detective had suggested it to him.
DISCUSSION
I. Instructional Errors Occurred but They Are Harmless Regarding the First
Degree Murder Convictions and the Special Circumstance Findings Under
Section 190.2, Subdivisions (a)(17)(A) and (G); However, We Reverse the
Special Circumstance Findings Under Subdivisions (a)(3) and (a)(15). We
Remand for Further Proceedings, Including Resentencing.
In counts 1 through 3, the jury convicted appellant of first degree murder (§ 187,
subd. (a)). The jury found true four special circumstance allegations: (1) lying in wait
(§ 190.2, subd. (a)(15)); (2) multiple murders (id., subd. (a)(3)); (3) murder in the
commission of robbery; and (4) murder in the commission of burglary (id.,
7 Appellant testified that he did not have a cellular phone that day so he could not
have called authorities.
11.
subds. (a)(17)(A) & (G)). Because of the special circumstance findings, appellant was
sentenced to three consecutive LWOP terms.
Appellant’s present claim is based on multiple alleged instructional errors.
According to appellant, the jury was permitted to convict him of first degree murder and
find true the special circumstance allegations based on invalid theories of liability.
Respondent concedes that instructional errors occurred. However, respondent
raises the forfeiture doctrine, contending we should not reach the merits of some of
appellant’s arguments. In the alternative, respondent maintains that the errors are
harmless beyond a reasonable doubt.
We agree that some instructional errors occurred. After a thorough review of the
record, we conclude that reversal is required in counts 1 through 3 regarding the special
circumstance findings of both multiple murders (§ 190.2, subd. (a)(3)) and lying in wait
(id. at subd. (a)(15)). Regarding these findings, we cannot declare beyond a reasonable
doubt that the errors were harmless. We will remand this matter for resentencing, but the
People shall have the right to retry these allegations. However, we affirm the three first
degree murder convictions, along with the jury’s true findings regarding the murder in the
commission of robbery and burglary (id., subd. (a)(17)(A) & (G)). For these verdicts and
findings, we can declare beyond a reasonable doubt that both the conceded and the
disputed instructional errors were harmless.
A. The governing law.
Murder is the unlawful killing of a human being with malice aforethought. (§ 187,
subd. (a).) Malice may be express (an intent to unlawfully kill) or implied—if someone
kills with no considerable provocation or when the circumstances attending the killing
show an abandoned and malignant heart. (§ 188, subd. (a)(1) & (2)). In order to be
convicted of murder, a principal in the crime shall act with malice aforethought. Malice
may not be imputed to a person solely based on his or her participation in a crime. (Id.,
subd. (a)(3).)
12.
First degree murder includes murder that is premediated and deliberate, murder
committed by lying in wait, or murder committed during the commission of certain
enumerated felonies, such as robbery and burglary (i.e., felony murder).8 (§ 189,
subd. (a).) All other kinds of murders are in the second degree. (Id., subd. (b).)
After determining the degree of murder, a jury may consider certain special
circumstance allegations. If found true, these special circumstances elevate the
punishment for first degree murder to death or LWOP. (§ 190.2, subd. (a)(1)–(22).)
Relevant here, those special circumstances include (1) the defendant being convicted in
the proceeding of more than one offense of first or second degree murder (§ 1902.,
subd. (a)(3)); (2) the defendant intentionally killing the victim by means of lying in wait
(id., subd. (a)(15)); and (3) the murder being committed while the defendant was engaged
in or was an accomplice in the commission (or its attempt) of robbery and/or burglary
(id., subd. (a)(17)(A) & (G)).
B. The instructional errors in this matter.
Respondent concedes that two instructional errors occurred. First, with
CALCRIM No. 416, the jury was instructed that evidence existed of an uncharged
conspiracy to commit this robbery and appellant was a member of that conspiracy.
Critically, with CALCRIM No. 417, the jury was told that a member of a conspiracy is
criminally responsible for any act of any member of the conspiracy if that act is done to
further the conspiracy and that act is a natural and probable consequence of the common
plan or design of the conspiracy.
The uncharged conspiracy was again mentioned when the jury was instructed with
CALCRIM No. 540B regarding murder liability under a theory of felony murder. In
relevant part, the jury was told that appellant was guilty of first degree murder if he
8 In this matter, the jury was instructed that it could not find appellant guilty of first
degree murder unless all jurors agreed that the People had proven that appellant
committed murder, but they did not need to all agree on the same theory of liability. (See
CALCRIM No. 521.)
13.
committed, aided and abetted, or was a member of a conspiracy to commit robbery, a
perpetrator caused the death of another person, appellant intended to kill, and appellant
aided and abetted the commission of first degree murder.
Respondent acknowledges that the instruction under CALCRIM No. 417
erroneously invited the jury to convict appellant of murder based on the natural and
probable consequences doctrine. We agree. Prior to this trial, the natural and probable
consequences doctrine was abolished as a means to establish murder liability for an aider
and abettor. (People v. Curiel (2023) 15 Cal.5th 433, 449; see also § 188, subd. (a)(3)
[“Malice shall not be imputed to a person based solely on his or her participation in a
crime”].)
The second conceded instructional error occurred with CALCRIM No. 703. The
jury was erroneously told at times that, if appellant was not an actual killer, the lying-in-
wait and the multiple-murder special-circumstance allegations could be found true merely
if he was a major participant who acted with reckless indifference to human life.
Respondent correctly concedes this was legally incorrect. If appellant was not the actual
killer, then the prosecution was required to prove that he acted with an intent to kill for
each murder in order to establish these special circumstance allegations. (See § 190.2,
subds. (c) & (d).)
The parties dispute whether two other instructional errors exist. The first
disagreement centers on the aiding and abetting instruction under CALCRIM No. 401,
which used the generic phrase “the crime” and which may have caused confusion about
which crime appellant had to intend to aid and abet, i.e., the robbery or the murder.
The second instructional dispute focuses on the actus reus requirement for murder
liability as an aider and abettor. Our high court recently clarified that “section 189,
subdivision (e)(2) requires that the nonkiller aid or abet the actual killer in the lethal act
itself, and not just the underlying felony.” (People v. Morris (2026) 19 Cal.5th 671, 693,
fn. omitted (Morris).) This trial occurred in 2021, well before Morris was issued. In
14.
relevant part, the trial court’s instructions under CALCRIM No. 540B told the jury that
appellant could be guilty of murder under a theory of felony murder as an aider and
abettor if, with an intent to kill, he aided and abetted the perpetrator “in the commission
of the first-degree murder.” According to appellant this instruction failed to comply with
Morris. Respondent disagrees, contending the instruction under CALCRIM No. 540B
“adequately informed the jury of the actus reus requirement” as clarified in Morris.
We need not resolve the parties’ disagreements regarding whether or not
appellant’s jury would have been confused by the language in CALCRIM No. 401, or
whether the instruction under CALCRIM No. 540B complied with the actus reus
requirement as clarified in Morris. As explained below, these potential errors, along with
the other conceded instructional errors, are all harmless beyond a reasonable doubt, either
when viewed individually or collectively.
C. We reject respondent’s reliance on forfeiture.
Respondent contends that appellant has forfeited at least some of his claims of
instructional error by failing to object below. We disagree.
Trial courts have a sua sponte duty to correctly instruct on the elements of the
charged offenses and on special circumstance allegations. (People v. Mil (2012)
53 Cal.4th 400, 409.) No objection is required to preserve a claim for appellate review
when the jury instructions omit an essential element of a charge. (Ibid.) Moreover, a
court may review any question of law involved in an instruction which affects the
substantial rights of the defendant. (§ 1259.)
As alleged, the instructional errors in this matter altered the mens rea and actus
reus elements that the jury was required to find. Accordingly, we decline to find
forfeiture, and we will review this claim on its merits. (See People v. Hardy (2018)
5 Cal.5th 56, 91 [declining to rely on forfeiture doctrine where alleged instructional
errors would have impacted defendant’s substantial rights].)
15.
D. The standard of review.
These conceded instructional errors impacted appellant’s constitutional rights
because they permitted the jury to convict him on an invalid legal theory. Accordingly,
we must reverse the convictions unless, after examining the entire cause—including the
evidence and considering all relevant circumstances—we determine the errors, including
the disputed ones, were all harmless beyond a reasonable doubt. (Chapman v. California
(1967) 386 U.S. 18, 24 (Chapman); In re Ferrell (2023) 14 Cal.5th 593, 602 (Ferrell);
People v. Aledamat (2019) 8 Cal.5th 1, 13 (Aledamat).)
When a jury is instructed on both a legally valid theory and a legally invalid
theory of guilt, harmlessness can be shown if the jury verdict on other points effectively
embraces the valid theory or if, based on the evidence, it is impossible to have found
what the verdict did find without also finding the facts underlying the valid theory.
(People v. Hin (2025) 17 Cal.5th 401, 443 (Hin); In re Lopez (2023) 14 Cal.5th 562, 568;
Ferrell, supra, 14 Cal.5th at p. 602.) To make this assessment, we must “ ‘rigorously
review the evidence to determine whether any rational juror who found the defendant
guilty based on an invalid theory, and made the factual findings reflected in the jury’s
verdict, would necessarily have found the defendant guilty based on a valid theory as
well.’ ” (Hin, at p. 443.) We must be convinced that the errors were harmless beyond a
reasonable doubt, and we must be satisfied that this standard is beyond serious debate.
(Id. at p. 444.)
E. Our analysis.
The trial evidence and the jury’s verdicts—especially the special circumstance
findings—are critical to our conclusion that the conceded and disputed instructional
errors are harmless for the three first degree murder convictions (§ 187, subd. (a)) and the
felony-murder special-circumstance findings (§ 190.2, subds. (a)(17)(A) & (G)). As we
explain below in greater detail, this record overwhelmingly demonstrates that it is
16.
impossible for the jury to have found what the verdicts did find without a rational jury
also finding the facts underlying a valid theory.
The evidence overwhelmingly demonstrated that appellant acted as a major
participant in these crimes and with his own reckless indifference to human life. The
prosecutor emphasized this theory to the jury throughout closing argument. Thus, we are
satisfied beyond a reasonable doubt that any rational juror who convicted appellant of
first degree murder would have necessarily found the facts required under section 189,
subdivision (e)(3). Consequently, we conclude that the conceded instructional errors in
this matter—and the disputed instructional errors under CALCRIM Nos. 401 and 540B—
are all harmless beyond a reasonable doubt, whether viewed individually or collectively.
Accordingly, we affirm the three first degree murder convictions (§ 187, subd. (a)), as
well as the felony-murder special-circumstance findings (§ 190.2, subds. (a)(17)(A) &
(G)) in counts 1 through 3.
1. The relevant jury instructions.
“Jurors are presumed able to understand and correlate instructions and are further
presumed to have followed the court’s instructions.” (People v. Sanchez (2001)
26 Cal.4th 834, 852.) This presumption carries particular force in this case. The court
instructed the jury that, to find any of the special circumstance allegations true for a
nonkiller, the People were required to prove beyond a reasonable doubt that appellant
either acted with an intent to kill, or he was a major participant in the underlying felony
who acted with reckless indifference to human life.
The jury found true all of the special circumstance allegations. By doing so, the
jury necessarily determined that appellant either held his own intent to kill, or he was a
major participant in the underling felony and acted with reckless indifference to human
life.
17.
2. The major participation and reckless indifference theory.
Relevant factors for major participant status include the defendant’s role in
planning the crime, his or her role in supplying or using lethal weapons, and what the
defendant knew about dangers posed by the crime. (People v. Banks (2015) 61 Cal.4th
788, 803; see CALCRIM No. 540B.) Relevant factors for reckless indifference include
whether the defendant knew a lethal weapon would be present, knew it was likely to be
used, was near the victims when the killing occurred, had an opportunity to stop the
killing or help the victims, and what the defendant did after lethal force was used. (In re
Scoggins (2020) 9 Cal.5th 667, 677; see People v. Clark (2016) 63 Cal.4th 522, 618–622;
see also CALCRIM No. 540B.)
These factors were provided to the jurors as grounds to find appellant guilty of
first degree murder. These factors were again separately provided to the jury to prove the
felony-murder special-circumstance allegations. The prosecutor repeatedly emphasized
during both initial closing argument and again during rebuttal that appellant was a major
participant who acted with reckless indifference to human life. The prosecutor went
through each factor, arguing they all applied to appellant. Respondent notes that this
“appears to be the primary theory the prosecutor relied on in pursuit of guilt.” We agree
with that assessment.
Regarding appellant’s reckless indifference to human life, the prosecutor argued to
the jury that appellant knew a lethal weapon was likely to be used, and he knew a lethal
weapon was actually used. Appellant knew the number of weapons involved in these
crimes. Appellant was near the victims killed when the killings occurred, and he had an
opportunity to stop the killings or help the victims. The prosecutor asserted that appellant
was aware that Dicky was going to kill somebody, but he never tried to minimize the
violence that day. The prosecutor argued that appellant “made a choice not to minimize
the possibility of violence every step he took.”
18.
Regarding appellant’s role as a major participant, the prosecutor contended that
appellant must have loaded the rifle because appellant had thought his fingerprints were
on the gun, and he knew how many rounds it held. As a result, the prosecutor argued that
appellant “participated in planning” this crime. According to the prosecutor, appellant
was in a position to facilitate or prevent these deaths, but his actions and his inactions
were a role in these deaths and, after lethal force was used, appellant simply ran away.
The prosecutor concluded her arguments to the jury by noting that three vulnerable
victims were surprised “by major participants with reckless indifference for human life.”
The prosecutor noted appellant’s own words, “ ‘I don’t care about those people.’ ” The
prosecutor ended by asking the jurors to decide if appellant was a major participant who
acted with reckless indifference to human life.
In his briefing with this court, appellant concedes that a valid theory of murder
liability exists based on his alleged role as a major participant who acted with reckless
indifference. Appellant also acknowledges that the CALCRIM No. 540B instruction
“offered the major-participation path as a freestanding alternative.”
However, appellant contends that the theory of major participation with reckless
indifference was “factually contested,” and he argues that the case against him was far
from overwhelming. He notes that the forensic evidence was ambiguous—only particles
consistent with GSR were found on his hands, while S.T. had particles on his hands
“characteristic of” GSR. Appellant further observes that no fingerprints were recovered
from the murder weapon, and no eyewitness identified him at trial as being a participant
in these crimes. He further argues that his recorded statements were the product of police
ruses and should be discounted, especially given his trial testimony in which he denied
killing anyone or firing a gun during this incident. From these factual disputes, he argues
it is “reasonably probable” the jury “was unable to unanimously agree” on his precise
19.
role or mental state, allowing the erroneous natural and probable consequences
instructions to result in a conviction based on imputed malice.9
3. The trial evidence overwhelmingly demonstrated that appellant
was a major participant who acted with reckless indifference.
We have rigorously reviewed the totality of the record to determine whether,
based on the evidence, it is impossible for a rational juror to have found what the verdicts
did find without also finding the facts underlying a valid theory. (See Hin, supra,
17 Cal.5th at p. 443; In re Lopez, supra, 14 Cal.5th at p. 568; Ferrell, supra, 14 Cal.5th at
p. 602.) This record overwhelmingly demonstrates that any rational juror who found
what the verdicts did find would also have found the facts necessary to support liability
under the reckless indifference prong.
In his supplemental opening brief, appellant concedes that (1) “he knew a firearm
would be used and knew of the plan to rob and shoot”; (2) “his assigned role was to use
force against the store’s occupants”; (3) “he was within a few feet of a victim when she
was shot”; (4) “he neither intervened nor summoned aid”; and (5) “he remained with the
group throughout the escape.”
During his police interview, appellant admitted that he entered the store with
Dicky and S.T. with the intent to commit a robbery. He admitted that each participant
had a specific task, and his job was to “beat the people in the store” using a “stick” or
something similar. However, appellant said he had just used his hand. He agreed that he
used force to assist Dicky in this robbery.
Before appellant, Dicky and S.T. entered the Asian market, they first discussed
their robbery plan while inside the adjacent furniture store. While in the furniture store,
they appeared nervous, and they repeatedly looked out the window towards the Asian
9 The jurors were expressly instructed by the court—and reminded by the
prosecutor—that they did not need to agree unanimously on the theory of murder that
supported their verdict.
20.
market. They waited for at least 10 minutes, and up to an hour, before they left the
furniture store and drove their vehicle closer to the Asian market. From this evidence, an
overwhelming inference exists that appellant and the others were planning these crimes in
advance and surveilling the Asian market. Indeed, appellant admitted at trial that, while
inside the furniture store, he had spotted his uncle outside the Asian market. They waited
until his uncle left before they went into the market.
At trial, appellant admitted that he never warned the victims, despite knowing that
Dicky had a gun and despite Dicky having said he was going to do “some sort of
shooting.” Appellant admitted at trial that Dicky told him “right after” they entered the
Asian market that the “purpose of going in there was to shoot somebody.” Instead of
warning anyone or leaving the market, appellant claimed at trial that he went to the back
of the store merely to buy oysters. The jury clearly did not find appellant’s account
credible.
At trial, a detective testified that appellant had been cocky and arrogant throughout
his interview with police. At one point, appellant had said that human life “wasn’t
important to him.” Appellant admitted at trial that, during his interview, he had been
asked several times about the victims, and he had repeatedly said he did not care about
them.
During his recorded conversation with S.T., appellant made numerous highly
incriminating statements. He acknowledged hearing multiple gunshots during the
incident. He acknowledged that gunpowder was “all over me.” He referred to one victim
as the “one that I hit,” stating, “She just died. The one that I hit bro” and later asked,
“Did you see me lay her out with one hit though?” He stated, “That [N-word] shot that
bitch right next, by me, bro.”
During his recorded conversation with S.T., appellant discussed the bullets used in
these murders, calling them “[o]ur bullets. Mine and Dicky’s.” Appellant accurately
21.
noted that 11 shells had been used in this crime, stating that law enforcement was
“missing two of mine.”
Particles “consistent” with gunshot residue were found on the back of appellant’s
hands.10 This evidence suggests that appellant either fired a gun, or touched a surface
containing GSR, or was in the vicinity of a gun when it was fired.11
During their recorded conversation, appellant and S.T. argued over the order of
their flight from the store. On the same day as these murders, January 25, 2011, appellant
was apprehended with Dicky and S.T. in the same vehicle that was used in this incident.
Appellant correctly notes that the presence of a gun during a robbery does not, by
itself, establish reckless indifference to human life. (People v. Clark, supra, 63 Cal.4th at
p. 617.) We agree. However, our conclusion is based on more than the mere presence of
the firearm. Appellant knew Dicky was armed with a loaded firearm and that its use was
likely during the robbery. Appellant actively participated in planning and casing the
Asian market. Appellant entered the market ahead of Dicky, and he had an assigned role
in the robbery. He failed to warn any victims or take any steps to minimize the risk of
death despite having the opportunity. He remained inside and continued participating
after the first shots were fired. He was nearby when a victim was shot. He fled with the
others and remained with them until they were arrested. He made detailed postcrime
statements demonstrating his knowledge of the rifle and its ammunition, his personal
involvement in striking a victim while shots were being fired, and his lack of concern for
10 In contrast to the partial particles on appellant that were only “consistent” with
gunshot residue, S.T. had particles on both hands that were “characteristic” of gunshot
residue.
11 In all three murder counts, the jury found true a firearm enhancement under
section 12022.53, subdivisions (d) and (e)(1). As we explain in part II., post, of our
opinion, we agree with the parties that the firearm enhancements must be reversed for a
variety of errors. Importantly for our analysis under the present claim, the jury did not
find true that appellant personally and intentionally discharged a firearm, only that a
principal did.
22.
the victims. Taken together, the totality of the evidence far exceeds the mere presence of
a firearm and compels the conclusion that appellant was a major participant who acted
with reckless indifference to human life.
4. The jury’s verdicts show that it rejected appellant’s defense.
By convicting appellant of both robbery and burglary, the jury necessarily
concluded that appellant held his own specific intent to commit these underlying felonies.
Such a finding is fundamentally inconsistent with appellant’s claims that he was an
unwilling, fearful participant who did not want to be involved. In rendering its verdicts,
it is apparent that the jury rejected appellant’s version of events. We will not reweigh the
jury’s credibility findings because the jury had the exclusive province to determine
witness credibility, and the truth or falsity of the determinative facts. (§ 1127; see People
v. Letner and Tobin (2010) 50 Cal.4th 99, 162.)
Appellant’s claim that he had no knowledge that anyone would be shot is directly
contradicted by the overwhelming evidence that he knew Dicky was armed with a loaded
firearm; appellant entered the store with Dicky; Dicky told him that he planned to shoot
somebody; appellant remained after the first shots were fired; appellant fled with his
coparticipants; and appellant made detailed postcrime statements demonstrating his
knowledge of the rifle and its ammunition, and his bragging to S.T. that he hit one of the
victims. In short, the jury’s verdicts necessarily rejected appellant’s core exculpatory
testimony. Even crediting appellant’s testimony to the maximum extent a rational juror
could, the totality of the evidence would have compelled any rational juror to find that
appellant was a major participant who acted with reckless indifference to human life.
Appellant points to a discrete portion of the prosecutor’s closing argument in
which she argued that appellant was guilty as an accomplice because he and his
confederates had shared in an intent to commit robbery. From this, appellant argues that
the prosecution was relieved of its burden to prove that he knew of and intended to aid
the homicides. We are not persuaded that this brief passage renders the instructional
23.
errors prejudicial. When viewed in context, the prosecutor was explaining general
principles of aiding and abetting liability and emphasizing that the participants shared an
intent to commit the robbery. In contrast to this isolated moment, the prosecutor
repeatedly emphasized throughout closing argument that appellant was a major
participant who acted with reckless indifference to human life. Indeed, the prosecutor
closed her argument by asking the jurors to find that appellant was a major participant
who acted with reckless indifference.
Appellant contends that the felony-murder special-circumstance finding merely
“presupposes the first-degree murder conviction” rather than independently
demonstrating a valid theory. We disagree. To find this special circumstance allegation
true, the instructions required the jury to find that appellant either acted with intent to kill
or that he was a major participant who acted with reckless indifference to human life.
Nothing in the instructions or argument suggest that a finding of guilt on the underlying
murder counts automatically satisfied this special circumstance allegation. The jury
found true all the special circumstance allegations which required them to find either
appellant’s own intent to kill or that he acted as a major participant with reckless
indifference. Consequently, we reject appellant’s core assertion that the jury must have
relied on imputed malice to find him guilty. Any rational juror who found true the
felony-murder special-circumstance allegations could not have done so without also
finding the facts necessary to establish liability under the valid theory.
5. We affirm the first degree murder convictions and the felony-
murder special-circumstance findings.
Appellant argues that respondent has not met its burden of proving harmless error.
According to appellant, it is not enough for this reviewing court to ask whether the
evidence was sufficient to support a valid theory of guilt. Rather, he maintains that we
must determine whether this jury, on these instructions, necessarily returned a verdict
based on a valid theory. He points to the standard articulated in In re Lopez, which holds
24.
that “alternative-theory error” may be found harmless “if it would be impossible, based
on the evidence, for a jury to make the findings reflected in its verdict without also
finding the missing fact as well.” (In re Lopez, supra, 14 Cal.5th at p. 568.) We agree
that this is the proper inquiry, but we reject appellant’s contention that respondent has
failed to prove that the conceded and disputed errors were harmless.
When a jury is instructed on both a legally valid theory and a legally invalid
theory of guilt, harmlessness can be shown if the jury verdict on other points effectively
embraces the valid theory or if, based on the evidence, it is impossible to have found
what the verdict did find without also finding the facts underlying the valid theory. (Hin,
supra, 17 Cal.5th at p. 443; Ferrell, supra, 14 Cal.5th at p. 602.) Our high court makes it
clear that “[i]ndications in the record that the jury may have actually relied on an invalid
theory, such as a prosecutor’s closing argument or a jury note, do not preclude a finding
of harmlessness if this standard is satisfied.” (In re Lopez, supra, 14 Cal.5th at p. 568.)
Our high court also makes it clear “that the relevant inquiry is not whether the jury’s
verdict actually rested on a valid theory, but whether any rational jury would surely have
rendered the same verdict had it been properly instructed.” (Id. at p. 584, fn. omitted.)
Respondent argues that “overwhelming evidence” supports the theory of major
participation and reckless indifference. We agree.
A thorough review of this record overwhelmingly demonstrates that appellant
acted as a major participant and with his own reckless indifference to human life. The
prosecutor emphasized this theory throughout closing argument. Thus, we are satisfied
beyond a reasonable doubt that any rational juror who convicted appellant of first degree
murder would have necessarily found the facts required under section 189,
subdivision (e)(3). We hold that it is impossible for a rational jury to have found what
the verdicts did find without the jury also finding the facts underlying the valid theory. It
is abundantly apparent that “any rational jury would surely have rendered the same
verdict had it been properly instructed.” (In re Lopez, supra, 14 Cal.5th at p. 584, fn.
25.
omitted.) In other words, “any rational juror who made the findings reflected in the
actual verdict and heard the evidence at trial” could not have had “reasonable doubt
regarding the findings necessary to convict the defendant on a valid theory.” (Id. at
pp. 590–591.)
Based on this record, we conclude that the conceded instructional errors in this
matter—and the disputed instructional errors under CALCRIM Nos. 401 and 540B—are
all harmless beyond a reasonable doubt. (See Chapman, supra, 386 U.S. at p. 24; Hin,
supra, 17 Cal.5th at p. 443; In re Lopez, supra, 14 Cal.5th at p. 568; Ferrell, supra,
14 Cal.5th at p. 602; Aledamat, supra, 8 Cal.5th at p. 13.) We are convinced this
standard is satisfied beyond any serious debate. (Hin, at p. 444.) Accordingly, we affirm
the three first degree murder convictions (§ 187, subd. (a)) and the felony-murder special-
circumstance findings (§ 190.2, subds. (a)(17)(A) & (G)) in counts 1 through 3.
6. We reverse the remaining special circumstance findings, which
may be retried.
We must reverse the multiple-murder (§ 190.2, subd. (a)(3)) and the lying-in-wait
(id. at subd. (a)(15)) special-circumstance findings. To be valid, these require a finding
that, if the defendant was not the actual killer, then he acted with his own intent to kill.
(§ 190.2, subd. (c).) The “reckless indifference” standard only applies to the felony-
murder special circumstance under subdivision (a)(17). (Id. at subd. (d).)
In this matter, the jurors received inconsistent instructions regarding the multiple-
murder and lying-in-wait allegations. At times, they were correctly told that an intent to
kill was needed to establish these allegations. However, at other times the court
incorrectly instructed the jury that the “reckless indifference” standard was sufficient for
these allegations. Consequently, we cannot declare beyond a reasonable doubt that all
jurors necessarily found these allegations true based on a valid theory of liability.
Accordingly, those findings under section 190.2, subdivisions (a)(3) and (a)(15), must be
reversed.
26.
The People may retry these allegations on remand. (See People v. Hallock (1989)
208 Cal.App.3d 595, 607 [conviction reversed for instructional error may be retried if
supported by sufficient evidence].) Even if the People do not elect to do so, however, a
full resentencing is required. (See People v. Buycks (2018) 5 Cal.5th 857, 893 [when part
of a sentence is stricken on review, a full resentencing is required so the trial court can
exercise its sentencing discretion in light of the changed circumstances].) We remand for
further proceedings.
II. We Reverse the True Findings Regarding the Firearm Enhancements in
Counts 1 Through 3; Retrial Is Barred.
The jury found true firearm enhancement allegations attached to each of the three
murder counts (§ 12022.53, subds. (d) & (e)(1)). Based on multiple errors, the parties
agree that these firearm findings must be reversed. The parties are correct.
Section 12022.53, subdivision (d), requires personal discharge by the defendant; it
does not impose vicarious liability for another principal’s firearm discharge. Vicarious
firearm liability is available only when a gang enhancement (§ 186.22, subd. (b)(1)) is
proven. (§ 12022.53, subd. (e)(1); see People v. Cooper (2023) 14 Cal.5th 735, 746.)
Here, the indictment alleged the firearm enhancements vicariously. It alleged that
appellant and his codefendants were principals in the murders, appellant violated
section 186.22, subdivision (b)(1), and at least one principal personally and intentionally
discharged a firearm causing death within the meaning of section 12022.53,
subdivisions (d) and (e)(1). The indictment never alleged that appellant personally
discharged a firearm.
The jury was properly instructed with CALCRIM No. 3149 that the firearm
enhancements under section 12022.53, subdivision (d), only applied if appellant
personally discharged a firearm in each of the murder counts. However, the prosecutor
erroneously told the jury that appellant did not have to personally discharge a firearm to
27.
find the firearm enhancements true. The prosecutor made it clear that these firearm
enhancements were established so long as any principal discharged a firearm.
Respondent correctly notes that these firearm enhancement allegations in counts 1
through 3 should have been part of the bifurcated gang trial but, for whatever reason,
were not bifurcated. The prosecutor dismissed the gang allegations during the bifurcated
portion of trial. Once the gang enhancement allegations were dismissed, the statutory
predicate for vicarious firearm liability under section 12022.53, subdivision (e)(1), was
gone. As such, the vicarious firearm enhancements which the jury found true are legally
deficient.
The trial court could not unilaterally decide that appellant personally discharged a
firearm. Section 12022.53 requires the facts supporting an enhancement to be alleged in
the accusatory pleading and admitted or found true by the trier of fact. (§ 12022.53,
subd. (j).) Any fact increasing punishment must be found by the jury beyond a
reasonable doubt. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi).)
On this record, the firearm enhancement findings cannot be treated as findings that
appellant personally discharged a firearm. Accordingly, the trial court erred at sentencing
when it purported to strike the vicarious firearm enhancements under section 12022.53,
subdivision (e)(1), but then stayed a subdivision (d) enhancement on count 1 and imposed
subdivision (d) enhancements on counts 2 and 3. Once the gang allegations were
dismissed, the vicarious theory was unavailable. Because personal discharge by
appellant was neither charged nor expressly found true by the jury in the verdict forms,
the court could not supply that missing fact at sentencing. (§ 12022.53, subd. (j); see
Apprendi, supra, 530 U.S. at p. 490.) The trial court lacked authority to stay the count 1
enhancement merely as an exercise of sentencing discretion. The court was only
authorized to strike or dismiss the enhancement, not to stay it even based on “its own
discretionary sense of justice.” (People v. Lopez (2004) 119 Cal.App.4th 355, 364; see
§§ 12022.53, subd. (h), 1385.)
28.
The count 1 enhancement also fails for an independent reason. Respondent
impliedly concedes the evidence was insufficient to prove that appellant personally
discharged a firearm causing the death as charged in count 1. We agree. Nothing in this
record establishes beyond a reasonable doubt that appellant was a direct shooter.
The firearm enhancement findings attached to counts 1, 2, and 3 must be stricken.
Based on principles of double jeopardy, retrial is barred. (See Porter v. Superior Court
(2009) 47 Cal.4th 125, 132–133 [“Because the prosecution had a full opportunity to
prove the facts necessary for a conviction but failed to do so, double jeopardy bars a
second bite at the apple”]; see also Curry v. Superior Court of San Francisco (1970)
2 Cal.3d 707, 712 [jeopardy attaches when a defendant is placed on trial in a court of
competent jurisdiction on a valid accusatory pleading].) We remand for further
proceedings, but the prosecution is barred from retrying the firearm enhancement
allegations.
III. The Trial Court Did Not Abuse Its Discretion When Denying a Motion for
Mistrial.
Near the end of appellant’s trial cross-examination, the prosecutor questioned him
about whether—during the more than 10 and one-half years between the crimes and his
trial testimony—he had ever come forward to disclose the account he gave to the jury.
Stretching over three pages in the transcript, the prosecutor asked about eight questions
that triggered affirmative responses from appellant indicating he had waited until trial to
provide his current account; he could have come forward with this version multiple times
in that last 10 years; and he had more than 10 years to develop his testimony.
Defense counsel objected to this line of questioning, which the court sustained.
Defense counsel moved for mistrial, arguing that the questioning improperly commented
on appellant’s right to silence. According to the defense, these questions had created
incurable prejudice.
29.
The trial court was concerned that the prosecutor’s questions had been delivered in
a “rapid fire” fashion and infringed on appellant’s constitutional right to silence after he
had been appointed legal counsel. However, the court denied the mistrial motion,
concluding the error was curable.
The following day, the court gave a specific curative instruction. The jury was
told that the prosecutor had questioned appellant about whether he made statements after
charges were filed and during the preceding years; appellant had been represented by
counsel since charges were filed; the attorney-client privilege applied; a represented
person may speak to counsel and is not required to tell anyone else anything; it was
improper for the prosecutor, police, or law enforcement to ask such questions of a
represented person; and the jury must completely disregard both the prosecutor’s
questions and appellant’s answers and not consider them for any purpose.
In the present claim, appellant argues that the trial court abused its discretion by
denying the motion for mistrial. Appellant contends that the prosecutor committed
misconduct, and his federal constitutional rights under the Fifth and Sixth Amendments
were infringed. In part, appellant relies on Doyle v. Ohio (1976) 426 U.S. 610 and
People v. Collins (2010) 49 Cal.4th 175, 205–206. Appellant contends that his judgment
must be reversed because the alleged misconduct negatively impacted his credibility,
which was never cured.
Respondent disputes some of appellant’s concerns, questioning whether errors
actually occurred under Doyle or Collins. However, respondent concedes that the trial
court recognized a potential violation of appellant’s Sixth Amendment right to counsel.
We need not resolve whether prosecutorial misconduct occurred, and we need not
give precise labels to the alleged constitutional violations. The prosecutor acknowledged
the next morning that the questions arguably infringed on appellant’s right to counsel and
represented an attack on privileged information. The trial court treated the questioning as
sufficiently problematic to require corrective action, and our review is focused on
30.
whether the court abused its discretion by denying the motion for mistrial. Assuming
without deciding that the questioning was improper, the trial court’s response was within
its broad discretionary range of reasonable remedies, and the court adequately addressed
the risk of prejudice. We find no abuse of discretion.
A. The standard of review.
A mistrial should be granted only when a party’s chances of receiving a fair trial
have been irreparably damaged. (People v. Ayala (2000) 23 Cal.4th 225, 282.) A trial
court has considerable discretion to decide whether a particular incident is incurably
prejudicial. (People v. Haskett (1982) 30 Cal.3d 841, 854.)
We review the denial of a mistrial for abuse of discretion. (People v. Avila (2006)
38 Cal.4th 491, 573.) Thus, the question is not merely whether the prosecutor’s
questioning created some risk of prejudice. The question is whether the prejudice was so
incurable that no reasonable trial court could rely on corrective measures short of
mistrial.
B. The trial court did not abuse its broad discretion.
The trial court recognized the seriousness of the prosecutor’s questioning,
including the intensity, frequency, and rapid-fire nature of the exchange. As part of the
curative measures, the court ordered the prosecutor not to mention in closing argument
anything about appellant’s silence after counsel had been appointed and warned that any
such future reference could constitute prosecutorial error justifying a mistrial. The
court’s admonishment to the prosecutor highlights that the court appreciated the danger
and acted to prevent further prejudice. However, this does not suggest that mistrial was
the only reasonable remedy.
Appellant argues that the challenged questioning cannot be dismissed as brief. He
asserts the exchange spanned approximately three pages of transcript, produced multiple
admissions, occurred at a climactic point in cross-examination, and accused him in
substance of having more than a decade to fabricate his defense. He also emphasizes that
31.
his credibility was crucial because there was no direct evidence proving he was the actual
shooter of any victim and his role in the robbery was heavily contested.
We agree the questioning must be evaluated by substance, not page count alone.
But even accepting appellant’s characterization, the trial court could reasonably conclude
the prejudice was curable.
The following day, the court gave a specific curative instruction. The jury was
told that the prosecutor had questioned appellant about whether he made statements after
charges were filed and during the preceding years; appellant had been represented by
counsel since charges were filed; the attorney-client privilege applied; a represented
person may speak to counsel and is not required to tell anyone else anything; it was
improper for the prosecutor, police, or law enforcement to ask such questions of a
represented person; and the jury must completely disregard both the prosecutor’s
questions and appellant’s answers and not consider them for any purpose. This was not a
vague or generic admonition. It identified the improper subject, explained why the
questions were improper, and directed the jury not to use either the questions or the
answers.
The court also accepted a stipulation that directly addressed the improper
inference. The jury was instructed that it was required to accept this stipulation as true.
The parties stipulated that appellant had always maintained and told his attorney that he
was not the shooter. They further stipulated that appellant had always maintained that his
recorded statements about “ ‘the one I hit’ ” and “ ‘lay her out with one hit’ ” referred to a
slap, a not a shooting. This stipulation directly countered the prosecutor’s implication
that appellant waited until trial to develop the claim that he was not the shooter.
Appellant argues the stipulation should not be treated as a voluntary curative
measure because it was entered only after the court denied his preferred remedies. He
notes that defense counsel sought a mistrial, argued an admonition was insufficient, and
even asked to be relieved as counsel of record so he could testify regarding appellant’s
32.
prior consistent statements. The trial court denied defense counsel’s request to testify.
Appellant therefore contends that this stipulation was forced on the defense after the
court rejected the request for mistrial and denied counsel a chance to withdraw and testify
on appellant’s behalf.
This record supports the limited point that the stipulation was not appellant’s
preferred remedy; defense counsel later clarified that, in light of the court’s decision to
give a curative instruction, the defense chose to enter the stipulation. However, the
relevant question is not whether appellant preferred another remedy. On the contrary, the
issue is whether the trial court abused its discretion in concluding that the remedies it
selected were sufficient.
The stipulation given to the jury was objectively favorable to appellant. It did not
require him to admit damaging facts. Instead, it told the jury it must accept as true that
appellant had consistently maintained to counsel that he was not the shooter and that the
disputed recorded statements referred to a slap. Combined with the court’s instruction to
disregard the improper questions and answers, the stipulation directly addressed the
asserted prejudice.
Appellant also challenges the timing of the admonition because it was given the
following day rather than immediately. Delay in admonishing a jury is a factor to
consider, particularly given appellant’s claim that the prosecutor’s questioning was rapid-
fire and climactic. But a next-day admonition is not ineffective as a matter of law. The
question remains whether the court reasonably could conclude, in context, that the
prejudice was curable.
Our high court has consistently held that prejudice from improper references to a
defendant’s silence or invocation of rights can be cured with an admonition to the jury.
(See People v. Clark (2011) 52 Cal.4th 856, 959; People v. Riggs (2008) 44 Cal.4th 248,
299; People v. Lucero (2000) 23 Cal.4th 692, 714.) Cases recognize that delayed
admonitions may cure prejudice depending on the circumstances. (See People v.
33.
Wharton (1991) 53 Cal.3d 522, 566 (Wharton) [inadvertent statement made on Thursday
and admonition the following Monday]; People v. Abel (2012) 53 Cal.4th 891, 923, 925–
926 (Abel) [admonition given the next day].)
Appellant attempts to distinguish Wharton, Abel, and Lucero. He notes that
Wharton involved a single volunteered statement that did not directly implicate the
defendant, and an admonition was given with defense counsel’s consent. (Wharton,
supra, 53 Cal.3d at p. 566.) He observes that Abel involved a brief witness remark
concerning character evidence where the jury already knew the defendant had spent a
substantial portion of his life in prison. (Abel, supra, 53 Cal.4th at pp. 925–926.) He also
argues Lucero is inapposite because it involved a penalty phase claim rather than guilt
phase impeachment of a testifying defendant whose credibility was central.
We do not rely on Wharton, Abel or Lucero as being factually on point. Instead,
they are instructive for the broader principle that not every improper reference requires
mistrial, and the effectiveness of an admonition depends on context. The context here
includes not only the admonition, but also the court’s order barring further reference, its
warning to the prosecutor, the absence of any renewed reference in closing, and the
stipulation the jury was required to accept as true.
Based on this record, appellant has not shown that the trial court’s response fell
outside the bounds of reason. The court considered the nature of the questioning, the
length and posture of the trial, the available remedies, and the totality of the evidence.
The court adopted remedies directed at the precise harm: the jury was told the questions
were improper, ordered to disregard the questions and answers, informed of attorney-
client privilege, and instructed to accept as true that appellant had long maintained to
counsel that he was not the shooter. Given those corrective measures, the trial court
could reasonably conclude appellant’s chance of receiving a fair trial had not been
irreparably damaged. Accordingly, even assuming the prosecutor’s questioning was
improper, we hold that the trial court did not abuse its broad discretion by denying the
34.
motion for mistrial. This claim fails. Because the trial court did not abuse its discretion,
we do not reach appellant’s separate arguments regarding prejudice.
IV. We Conditionally Reverse Appellant’s Judgment and Remand for a Juvenile
Transfer Hearing.
In January 2011, appellant was 16 years old when he committed the present
crimes. In 2012, he was charged directly in adult court.
In 2016, appellant filed a motion for remand to the juvenile court and a transfer
hearing under Proposition 57, the Public Safety and Rehabilitation Act of 2016
(Proposition 57). Proposition 57 was passed in November 2016, and it prohibited
prosecutors from charging crimes against juveniles directly in adult court. (People v.
Superior Court (Lara) (2018) 4 Cal.5th 299, 303 (Lara).)
In January 2017, the adult court granted appellant’s transfer motion, suspended
criminal proceedings, and remanded the case to juvenile court. That same month, the
prosecution filed a juvenile petition alleging the instant crimes but requested that the case
be transferred to adult court. Appellant, however, subsequently waived his right to
proceed in juvenile court.12 Appellant’s case was transferred back to adult court, and
criminal proceedings were reinstated in 2020.
In September 2021, the jury returned its verdicts in this matter, convicting
appellant of all charges and enhancements. The matter proceeded to a bifurcated trial
regarding gang allegations, but those gang allegations were dismissed by the prosecution.
The sentencing hearing was continued multiple times.
Before sentencing occurred in this matter, Assembly Bill No. 2361 (2021–2022
Reg. Sess.) (Assembly Bill 2361) amended Welfare and Institutions Code section 707.
These changes were effective January 1, 2023. Assembly Bill 2361 increased the burden
12 The limited record we have indicates that, based on the nature of this crime, S.T.’s
case was transferred to adult court and, once S.T.’s transfer occurred, appellant decided
to waive his own transfer hearing.
35.
of proof the prosecution was required to establish in order for a juvenile to be prosecuted
in adult criminal court. Under the newer heightened standard, it must be shown by clear
and convincing evidence that a juvenile should be transferred to adult criminal court. (In
re E.P. (2023) 89 Cal.App.5th 409, 416.)
In November 2023, before sentencing occurred in this matter, appellant filed a
motion for a new transfer hearing to the juvenile court under Assembly Bill 2361. The
prosecution filed an opposition arguing that appellant had waived his right to transfer.
In May 2024, the trial court denied appellant’s transfer motion. At that time,
appellant was about 29 years old. When denying appellant’s transfer motion, the trial
court took evidence and conducted its own analysis of appellant’s amenability to
rehabilitation under Assembly Bill 2361. The court noted that appellant had previously
waived his right to a transfer hearing. The court also expressed its concern that no
juvenile services were available for appellant, and the juvenile court’s jurisdiction over
appellant had already ended.
In the present claim, appellant argues that the trial court committed reversible
error by denying his motion for a new juvenile amenability hearing. Appellant contends
that the court’s procedure was improper because the transfer determination belongs to the
juvenile court and not the adult criminal court. Appellant also raises a due process
challenge.
Respondent concedes that the trial court conducted an “unnecessary quasi-transfer
hearing” and acknowledges that any transfer determination under Assembly Bill 2361
must be made by the juvenile court with the benefit of a probation report. (See Welf. &
Inst. Code, § 707, subds. (a)(1) & (3).) Therefore, respondent does not ask us to affirm
on the ground that the trial court correctly evaluated appellant’s amenability under the
amended statute. Instead, respondent relies entirely on appellant’s prior waiver, arguing
it remains valid and enforceable.
36.
Respondent’s concession narrows the issue before us. We need not decide
whether the trial court’s transfer hearing violated appellant’s due process rights or
whether the court properly weighed the evidence. Instead, the court’s denial must stand
or fall on appellant’s prior waiver. The question is whether appellant’s prior waiver of
the transfer hearing then available under Proposition 57 also waived the later enacted
protections under Assembly Bill 2361. We conclude it did not.
A. Assembly Bill 2361 materially changed the process governing transfer.
Under Proposition 57, a minor could not be prosecuted in adult criminal court
unless the juvenile court first determined that transfer was appropriate. (Lara, supra,
4 Cal.5th at p. 303.) A transfer hearing was required to consider various factors such as
the minor’s maturity, degree of criminal sophistication, prior delinquent history, and
whether the minor can be rehabilitated. (Id. at p. 305.)
Assembly Bill 2361 did not eliminate these transfer criteria, which remain part of
the transfer analysis. (See Welf. & Inst. Code, § 707, subd. (a)(1)(A)–(E).) However,
Assembly Bill 2361 changed how those criteria operate within the transfer decision.
When appellant previously waived his right to proceed in juvenile court, the
governing law at that time required the prosecution to establish by a mere preponderance
of the evidence that he should be transferred to a court of criminal jurisdiction. (In re
E.P., supra, 89 Cal.App.5th at p. 415.) Effective January 1, 2023, however, Assembly
Bill 2361 raised the standard of proof to clear and convincing evidence and required the
juvenile court to make a new specific finding that the minor is not amenable to
rehabilitation while under the jurisdiction of the juvenile court. (In re S.S. (2023)
89 Cal.App.5th 1277, 1284; see also Welf. & Inst. Code, § 707, subd. (a)(3).)
Assembly Bill 2361 applies retroactively to nonfinal cases, a point which
respondent concedes. (In re E.P., supra, 89 Cal.App.5th at p. 416.) Respondent also
concedes that appellant’s judgment was not final when Assembly Bill 2361 became
effective. However, respondent argues that retroactivity and waiver are distinct concepts,
37.
and appellant’s prior waiver must be given effect. We disagree that appellant’s prior
waiver is dispositive.
B. Appellant’s prior waiver does not bar application of Assembly Bill 2361.
The transfer hearing procedure at issue here is statutory in nature. (Welf. & Inst.
Code, § 707.) A person who is eligible to have his case proceed in juvenile court may
knowingly waive this statutory right. (People v. Nguyen (1990) 222 Cal.App.3d 1612,
1620; see also People v. Johnson (2020) 45 Cal.App.5th 123, 132 [legal counsel may
waive the right to a juvenile fitness hearing for an accused who has reached adulthood].)
No published decision appears to address the specific issue before us. But settled
waiver principles are instructive. “A waiver is ordinarily an intentional relinquishment or
abandonment of a known right or privilege.” (Johnson v. Zerbst (1938) 304 U.S. 458,
464.) A criminal defendant cannot be deemed to have waived or forfeited a legal
argument that was not recognized at the time of his trial. (People v. Cardenas (2007) 155
Cal.App.4th 1468, 1479.) Even where a right may be waived, a waiver generally does
not include protections that were not reasonably available or contemplated at the time.
(See People v. French (2008) 43 Cal.4th 36, 48 [in a negotiated plea, waiver of right to
jury trial on charged offenses does not extend to proof of aggravating circumstances
when no such jury right was recognized at time of plea]; People v. Panizzon (1996) 13
Cal.4th 68, 85 [general waiver of right to appeal from a negotiated plea agreement will
not bar the appeal of sentencing errors occurring subsequent to the plea]; People v.
Becerra (2019) 32 Cal.App.5th 178, 188 [defendant cannot knowingly and intelligently
waive right to appeal an issue not contemplated at time of waiver].)
These waiver principles are dispositive here. Before Assembly Bill 2361 became
effective, appellant waived his statutory right to a juvenile transfer hearing. At that time,
however, the burden of proof was not the “clear and convincing” standard that applies
now. Nor did the prior statutory scheme require the juvenile court to make the same
findings the current law requires. Consequently, we reject respondent’s assertions that
38.
Assembly Bill 2361 did not “fundamentally” change the transfer inquiry. Based on these
retroactive changes, appellant’s prior waiver does not establish that he knowingly
relinquished the procedural protections now afforded him under Assembly Bill 2361.
Respondent relies on People v. Level (2002) 97 Cal.App.4th 1208 (Level).
According to respondent, if appellant is permitted to seek a transfer hearing after waiving
his right, he will be permitted “to trifle with the courts.” Level does not assist respondent.
There, the defendant failed to disclose she was 17 years old in a prior adult proceeding,
and she accepted the benefits of an adult disposition. The defendant allowed that
conviction to become final, and she later sought to avoid use of that conviction as a
strike. (Level, at pp. 1212–1213.) The appellate court found no error when the trial court
denied the defendant’s motion to strike, holding that she was “precluded by waiver and
estoppel from asserting her minority as a basis for challenging her prior robbery
conviction.” (Id. at p. 1214.)
Unlike in Level, this case does not involve concealment of age, a final prior
conviction, or a collateral attack on a negotiated adult disposition. Appellant’s juvenile
status was known, the case was actually remanded to the juvenile court under
Proposition 57, and appellant’s current claim rests on an ameliorative statute that
respondent concedes applies retroactively to nonfinal cases. Appellant is not
manipulating a fact known only to him. Instead, he is invoking a change in law enacted
after his initial waiver. Appellant is entitled to the retroactive benefits of Assembly
Bill 2361.
C. The appropriate remedy is a conditional reversal.
Respondent agrees that, if appellant is entitled to a transfer hearing in juvenile
court under Assembly Bill 2361, then the appropriate remedy is a conditional reversal of
the judgment with a remand for the juvenile court to conduct a transfer hearing consistent
with Lara, supra, 4 Cal.5th at page 310. We agree.
39.
Consistent with Lara, we will conditionally reverse appellant’s judgment and
direct the juvenile court to conduct a juvenile transfer hearing. If, after conducting the
juvenile transfer hearing, the court determines that it would have transferred appellant to
a court of adult criminal jurisdiction because he is not a fit and proper subject to be dealt
with under the juvenile law, then appellant’s criminal convictions are to be reinstated,
and the adult criminal court shall conduct further proceedings, including resentencing in
conformity with this opinion. On the other hand, if the juvenile court finds that it would
not have transferred appellant to a court of criminal jurisdiction, then it shall treat
appellant’s convictions as juvenile adjudications and conduct further proceedings within
its discretion and in conformity with this opinion. (Lara, supra, 4 Cal.5th at p. 310.)
We express no opinion on whether appellant is amenable to rehabilitation while
under juvenile court jurisdiction, whether transfer to adult court is warranted, or how the
matter should ultimately be resolved if transfer is denied.
DISPOSITION
The jury’s true findings in counts 1, 2, and 3 regarding the firearm enhancements
(§ 12022.53, subds. (d), (e)(1)) are reversed. Retrial on the firearm enhancement
allegations is barred.
The jury’s true findings in counts 1, 2, and 3 regarding the special circumstance
allegations of multiple murders (§ 190.2, subd. (a)(3)) and lying in wait (id.,
subd. (a)(15)) are reversed. The prosecution may retry these allegations.
Appellant’s remaining convictions and sentence are conditionally reversed, and
the matter is remanded to the trial court with directions to refer the case to the juvenile
court for a transfer hearing. (Welf. & Inst. Code, § 707.) If, after conducting the juvenile
transfer hearing, the juvenile court determines it would not have transferred appellant to
adult criminal court under current law, it shall treat appellant’s convictions as a juvenile
adjudication and conduct further proceedings as appropriate.
40.
If, after conducting the juvenile transfer hearing, the juvenile court determines it
would have transferred appellant to adult criminal court, it shall transfer the case to
criminal court.
If this matter is transferred back to adult criminal court, the criminal court shall
fully resentence appellant, but the People shall first have the right to retry appellant on
the special circumstance allegations of multiple murders (§ 190.2, subd. (a)(3)) and lying
in wait (id., subd. (a)(15)). In all other respects, the judgment is affirmed.
LEVY, J.
WE CONCUR:
HILL, P. J.
GUERRA, J.
41.