Filed 3/1/18 P. v. Khan CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
MOHAMMED KHAN, et al.,
Defendants and Appellants.

A147436

(Alameda County
Super. Ct. Nos. H52317B, H52317C)


Defendants Mohammed Khan and Manuel Trujillo were convicted by a jury of first degree murder and attempted voluntary manslaughter. Khan was also convicted of cultivation of marijuana, and an arming enhancement was found true as to Trujillo. Trujillo and Kahn both appeal, Trujillo making three fundamental arguments in which Khan joins: (1) instructional error; (2) insufficiency of evidence in three particulars; and (3) double jeopardy. Khan makes an additional argument, insufficiency of evidence as to the conviction for attempted voluntary manslaughter. We conclude that none of the arguments has merit, and we affirm.
BACKGROUND
The case involves the murder of Francisco Lopez and the attempted murder of his brother Fernando that occurred when the Lopez brothers went to rob a grow house in Hayward. These are the facts leading to those crimes.
The Facts
Sometime before February 2010, Abraham Sanchez and his brother Tiburcio Sanchez moved into a house on Standish Avenue in Hayward (Standish house) to work there in connection with a marijuana operation. Their cousin, Jesus Serna, joined them several months later. All three men were Mexican immigrants, and none spoke much English. They paid no rent, and would themselves be paid “to watch over the house and watch over the marijuana,” and would be paid “for every crop.” Their duties included treating the plants with chemicals and “making sure that everything was going well.”
The Standish house was “overseen” by Khan and Sylvestre Arroyo. Khan lived in a rental home in Hayward, and he, usually with Arroyo, would visit the Standish house approximately every two weeks, bringing chemicals and other items to help the grow. Khan did not speak Spanish, so Arroyo would speak to Abraham, who would translate for Khan. And when Abraham spoke with Khan by telephone, Trujillo would translate for him.
At some point Abraham saw Khan and Arroyo arguing in the living room of the Standish house. They were arguing in English, and Abraham did not understand what they were saying. Shortly after the argument, Arroyo left. Two days or so later, Khan brought a shotgun and shells to the Standish house, doing so, according to Tiburcio, “because they fought.” Around the same time, Abraham picked up two pit bulls from Khan’s house. The shotgun and the dogs, Serna said, were to “protect the plants.”
During the early morning hours of February 26, 2010, Fernando was sleeping in his parents’ home in East Palo Alto, when he was awakened by a call from his brother Francisco, who asked him to “come with him.” Some 45 minutes later Francisco picked up Fernando at their parents’ house and, with Francisco’s girlfriend Camie Libasci driving, they went to the Standish house. While Libasci sat in her car outside, the two men kicked open the front door.
The noise awakened Serna, who went to Abraham’s room to awaken him. Abraham got the shotgun and, armed with it, he and Serna went downstairs and then into the small garage, where they encountered the Lopez brothers. With the shotgun pointed at the brothers, Abraham and Serna asked why they had “come inside like that.” They said Arroyo had sent them to rob them, to take the marijuana.
Abraham called Khan to tell him about the break-in. Khan turned the call over to the Spanish-speaking Trujillo, who told Abraham they would be coming to the house.
Libasci, who as noted had parked in the driveway, testified that after some 15 minutes she heard a gunshot, a man scream, and a dog barking. She continued to wait for another 45 minutes, when a black Expedition pulled in front of the driveway and at least three men got out, one carrying a gun. Libasci slowly started her car, and then saw the men walk back to the Expedition. She pulled out of the driveway, made two left turns, and noticed the Expedition coming towards her. She drove past the Expedition and started speeding, and the Expedition made a U turn and began to chase her. She pulled onto the freeway heading toward San Francisco, got off a few exits up the freeway, and headed back toward Palo Alto. The Expedition was still following. A Highway Patrol car pulled Libasci over, “clocked at 90.” Libasci told the officer she was being chased and the people chasing her had her boyfriend and his brother. The officer did not believe her and told her to go home and wait for her boyfriend. After the officer wrote the speeding ticket, Libasci drove to Menlo Park to get Francisco’s best friend, Javier Esparza, and they then drove back to the Standish house, where they found Fernando hiding in the bushes.
Apparently while some of the above was occurring, Tiburcio arrived at the Standish house and called Khan. Khan told Tiburcio “he was coming right away,” and Tiburcio waited outside for him to arrive. Shortly thereafter, Khan, Trujillo, a “muscular” man, and Miguel Michel arrived at the Standish house. They went immediately to the small garage where the Lopez brothers were being held at gunpoint by Abraham and Serna.
Khan had an AK-47 rifle and Trujillo a .45-caliber pistol. Speaking in English, Khan spoke “loudly” to the Lopez brothers. Trujillo, speaking to the brothers in Spanish, said “Khan was the boss there, and that they had made a mistake about the people that they had come to steal from.” And then the beatings began, Khan and Trujillo beating the Lopez brothers with their fists and firearms. They also kicked them. At some point, they bound the brothers’ hands behind their back with zip ties. Michel also beat Francisco with his hands and choked him with an electrical cord, and he tried to hit the men in their heads with a drill. And at one point they removed the brothers’ clothing. Sometime in the course of the beatings, Trujillo told the brothers “that he was still outside to kill trash like [them].” Khan and Trujillo also threatened their lives and told them they were “done for . . . that was it for [them].” Fernando testified that while he was in the garage, he believed his life was in danger.
During the beatings, a gun went off accidentally and Michel was shot in his leg. Tiburcio instructed Serna to take Michel home and not return. Not long after that, the men holding the Lopez brothers in the garage led them outside. While Khan was holding Fernando’s hands and directing him towards a parked vehicle, Fernando was able to break free of the zip ties and escape. Trujillo chased after him with a power drill that he used to try “to punch and stab” Fernando, but Fernando was able to ultimately escape and, after unsuccessfully seeking help from neighbors, hid in the bushes where, as noted, Libasci found him.
Meanwhile, Fernando saw someone drag Francisco out of the garage and put him into the back seat of a black Explorer. Trujillo, Tiburcio, and the muscular man then got into the Explorer. They saw Khan standing in the street, and picked him up, and Khan got into the driver’s seat and drove to his house in Hayward. The muscular man dragged Francisco out of the vehicle and left him on the living room floor of Khan’s house, where all three of them, Khan, Trujillo, and the muscular man, beat him in his face with closed fists and kicked him. Khan’s wife told the men to stop, and they did. At that point, Francisco appeared to have trouble breathing, though he was still alive.
Khan told the others that Francisco “shouldn’t stay there.” The muscular man grabbed Francisco, put him in the back seat of a black Lincoln, and got into the driver’s seat; Trujillo got into the front passenger seat, Tiburcio in the back with Francisco. After driving for a while, the muscular man stopped the car, got out, and pulled Francisco from the car, leaving him on the ground at the side of the road. They then drove back to Khan’s house and stayed there. Trujillo drove the Lincoln to take Tiburcio to get his truck.
Six months later, on August 25, 2010, the police were interviewing Tiburcio, in the course of which he told them they would find Francisco’s body near Niles Canyon Road or Highway 84, just outside Fremont. Accompanied by Tiburcio, the police went to that area, where they found Francisco’s skeletonized body. The pathologist who performed the autopsy testified that Francisco had suffered at least six fractures in his face consistent with blunt force trauma, and opined that Francisco’s death was caused by “the totality of all of the fractures put together.”
The Legal Proceedings
On August 28, 2014, the Alameda County District Attorney filed a first amended information charging Trujillo and Khan as follows: count one—murder of Francisco Lopez (Pen. Code, § 187(a)) ; count two—attempted murder of Fernando Lopez (§§ 187(a), 664); and count three—cultivation of marijuana (Health & Saf. Code, § 11358). Personal use of a firearm allegations were attached to counts one and two (§§ 12022, subd. (a)(1) and 12022.5, subd. (a), and 12022.53, subds. (b) and (g)); and it was alleged that both defendants suffered multiple prior convictions and served multiple prior prison terms (§ 667.5, subd. (b)).
Defendants’ trial actually began in September 2014, but shortly after it began a mistrial was declared, all as discussed in detail below in connection with the double jeopardy claim.
The trial leading to this appeal began jury selection on September 14, 2015 and lasted for nine trial days. The case was submitted to the jury on the morning of October 14. The next morning, the jury submitted a question asking the court to define “intent.” The court instructed the jury to use the ordinary meaning of the word. That afternoon, the jury asked if aiding and abetting applied to every crime it was considering. The court responded it did. The bailiff then relayed to the court that the jury wanted to break early and go home for the weekend. On the morning of October 19, the jury asked if moving a dead body could be kidnapping, giving as an example “the body is in a small garage, dead, a defendant moves him physically to the truck or once in the truck, the dead body is driven to a location.” The court answered, “No.”
The same afternoon, the jury returned its verdicts, as follows:
Khan: guilty of first degree murder of Francisco; guilty of attempted voluntary manslaughter of Fernando; guilty of cultivating marijuana; and not guilty of the use of a firearm.
Trujillo: guilty of first degree murder of Francisco; guilty of attempted voluntary manslaughter of Fernando; not guilty of cultivating marijuana; and arming with a firearm found true.
On January 29, 2016, the court sentenced Trujillo to state prison for a total term of 31 years to life: 25 years to life on count one, with a firearm enhancement of one year (§ 12022, subd. (a)(1)) to run consecutive to count one; the upper term of five years and six months on count two, with a firearm enhancement of one year (§ 12022, subd. (a)(1)), both to run concurrent to count one; and a five-year serious felony enhancement (§ 667, subd. (a)(1)) to run consecutive to count one. Khan was sentenced to 32 years 2 months to life: 25 years to life on count one; the upper term of five years and six months to run consecutive on count two; one-third the middle term of eight months to run consecutive on count three, and one year to run consecutive to count one for the prior conviction.
Both defendants filed timely notices of appeal.
DISCUSSION
Introduction
Khan’s opening brief was filed in December 2016, Trujillo’s in February 2017. Khan makes only one argument himself, that there was insufficient evidence to support his conviction for attempted voluntary manslaughter. Khan also states that he “joins arguments made by co-appellant Trujillo,” despite not knowing what those arguments might be. Nevertheless, we treat Trujillo’s arguments as made on behalf of both him and Khan, and begin by addressing those arguments.
There Was No Instructional Error
The trial court instructed the jury concerning aiding and abetting for felony murder based on kidnapping in accordance with CALCRIM No. 540, as follows: “To decide whether a defendant aided and abetted the crime of kidnapping, please refer to the separate instructions that I had just given you on aiding and abetting. You can apply those instructions when you decide whether the People have proved murder under a theory of felony murder. [¶] The defendant must have intended to commit or aided and abetted the felony of kidnapping before or at the time that a perpetrator caused the death.” (Italics added.)
Focusing on the italicized language, defendants contend the instruction was error, a contention based on two cases: People v. Pulido (1997) 15 Cal.4th 713 (Pulido) and People v. Hill (2015) 236 Cal.App.4th 1100 (Hill). In Trujillo’s words: because “an accomplice could have [been] liable if he had been engaged in the commission of the underlying felony with the perpetrator ‘before’ the perpetrator caused the death of the victim,” this instruction conflicts with the California Supreme Court’s holding in Pulido. Defendants are wrong.
The issue in Pulido was whether a person who, after a killing by a robber in the course of a robbery, abets the robber in the asportation of the property is guilty of first degree murder. As the question was described by the Supreme Court: “If one person, acting alone, kills in the perpetration of a robbery, and another person thereafter aids and abets the robber in the asportation and securing of the property taken, is the second person guilty of first degree murder under section 189?” (Pulido, supra, 15 Cal.4th at p. 716.) The court answered that question, “No.” But, the Supreme Court went on to hold, Pulido had failed to demonstrate prejudice from error because the instruction omitted by the trial court had necessarily been resolved adversely to defendant under other instructions—and the jury had necessarily found Pulido’s involvement in the robbery had begun either “before or during the killing” of the victim. (Id. at p. 727, italics added.) In other words, the verdict necessarily found that Pulido’s involvement in the predicate felony had occurred before or during the killing of the victim. This is entirely consistent with CALCRIM No. 540A, the instruction given here.
This point was underscored by the Pulido court when it addressed defendant’s concern with the trial court’s use of CALJIC No. 8.27, where the court noted as follows: “One proper manner of modifying CALJIC No. 8.27 to limit the liability of late joiners, therefore, would be to insert in the instruction the following italicized phrase: ‘If a human being is killed by any one of several persons engaged in the commission or attempted commission of the crime of —, all persons, who either directly and actively commit the act constituting that crime, or who, at or before the time of the killing, with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid, promote, encourage, or instigate by act or advice its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional or accidental.’ ” (Pulido, supra, 15 Cal.4th at p. 729.)
People v. Cavitt (2004) 33 Cal.4th 187 (Cavitt) is instructive. There, defendants Cavitt and Williams planned, along with Cavitt’s girlfriend McKnight, to surprise McKnight’s stepmother, tie her up, and rob her. They did so, beating her and leaving her tied face down on the bed with a sheet over her head, with her breathing labored. Cavitt and Williams fled with the loot, making it appear that McKnight was also a victim by pretending to tie her up as well. By the time McKnight called her father to report that unidentified persons had entered the house and committed a robbery, her stepmother had died from asphyxiation. The defense theory was that McKnight killed her stepmother in the five or 10 minutes after defendants had left the house with the stolen property and reached a place of safety, and thus the felony-murder rule did not apply.
The Supreme Court rejected the argument and affirmed, holding that even if defendants had reached a place of safety before the stepmother was killed, this would not relieve them of liability for felony murder, so long as the felonies and the homicide were part of one continuous transaction and defendants were engaged in the felonious scheme before or during the killing: “felony-murder liability attaches . . . to those engaged in the felonious scheme before or during the killing.” (Cavitt, supra, 33 Cal.4th at p. 207, citing Pulido.)
Hill, supra, 236 Cal.App.4th 1100, the other case cited by Trujillo, is no more supportive. Hill arose out of the prosecution of Rosa Hill and her mother Mei Li for the murder of Hill’s estranged husband’s grandmother, Selma Hill. There was evidence from which a juror could conclude that Mei was not present when Rosa killed Selma, and that Mei’s “joint engagement” in the commission of the burglary and/or kidnapping did not arise until after Selma was already dead. We held that in light of that evidence the trial court “had a sua sponte duty to instruct the jury that felony-murder liability does not attach to a defendant who aids and abets the perpetrator of the crime only after the killing.” (See Pulido, supra, 15 Cal.4th at pp. 726, 729.)” (Hill, at p. 1121.) We called Mei a “late-joining accomplice.” (Id. at p. 1116.) No late-joining accomplice is involved here.
In sum, the instruction was correct: the defendant must have intended to commit or aid and abet the felony “before or at the time” a perpetrator caused the death. Or, as the Supreme Court earlier put it, “[u]nder the felony-murder rule, ‘the evidence must establish that the defendant harbored the felonious intent either prior to or during the commission of the acts which resulted in the victim’s death . . . .’ ” (People v. Ainsworth (1988) 45 Cal.3d 984, 1016, disapproved on another ground in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13; accord, People v. Anderson (1968) 70 Cal.2d 15, 34 [“[T]he evidence must establish that the defendant harbored the felonious intent either prior to or during the commission of the acts which resulted in the victim’s death”].)
There Was Substantial Evidence
Trujillo next argues that there was insufficient evidence to support his convictions, in three particulars, no substantial evidence: (1) that he engaged in the underlying felony of kidnapping; (2) that he was guilty of murdering Francisco, either as a perpetrator or under the standard of accomplice liability; and (3) that he was armed.
“In reviewing a claim for sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid value—supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.” (People v. Jennings (2010) 50 Cal.4th 616, 638–639; accord, People v. Nelson (2011) 51 Cal.4th 198, 210.)
To put it slightly differently, “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the [trier of fact’s decision.] [Citation.] [¶] The same standard governs in cases where the prosecution relies primarily on circumstantial evidence. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) As one of the cases cited by the Attorney General describes it, to prevail on their insufficiency of evidence claim, defendants bear “an enormous burden.” (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) They have not met it.
Kidnapping
As described in detail above, Abraham testified that both Trujillo and Khan were involved in tying the brothers’ hands together before they were taken out of the garage; and further that when Fernando broke free, Trujillo grabbed Francisco and picked him up while the door of one of the vehicles in the driveway was open. Fernando testified that after he was taken out of the Standish house, he saw both Trujillo and Khan with Francisco outside the house, just before Francisco was put into an SUV that then left the scene. He also testified that before he escaped, he believed he was going to be put into the waiting vehicle. Tiburcio testified that Trujillo left the garage just before the muscular man dragged Francisco outside; that shortly after the muscular man put Francisco into the black Explorer, Trujillo got in with Tiburcio and was seated in the back with Francisco—and that they then picked up Khan, who got behind the wheel and drove to his house.
At Khan’s house, both he and Trujillo beat Francisco. And after the beating ceased, Khan instructed the others that he did not want Francisco to remain in his house, and the men left Khan’s house and dumped Francisco by the side of the road, then returning to Khan’s house. From there, Trujillo drove Tiburcio to get his truck, driving the same car they had used to leave Francisco by the side of the road.
Based on the above, the jury could reasonably conclude that both defendants were involved in Francisco’s kidnapping. As to Khan, the evidence showed that he orchestrated the kidnapping and subsequent beating, and that it was under his direction that Francisco was left to die at the side of the road. As to Trujillo, the evidence included his beating of Francisco and his other conduct in the garage; his proximity to the SUV when Francisco was placed there; his being seated with Francisco in the back of the SUV when he was taken to Khan’s house; his participation in the beating inflicted on Francisco thereafter; and his assistance in driving Francisco to another location to be left to die. This was sufficient—indeed, overwhelming—evidence to support a finding that both defendants were guilty of Francisco’s kidnapping, either as a direct perpetrator or as an aider and abettor.
First Degree Murder
The next claim is that there was insufficient evidence that defendants were guilty of murdering Francisco, either as perpetrators or as aiders and abettors. To the contrary, as set forth above, there was substantial evidence of defendants’ involvement in the kidnapping, rendering them guilty of felony murder as aiders and abettors in that kidnapping.
There was also substantial evidence of a causal and temporal relationship between the kidnapping and the acts that resulted in Francisco’s death. (See Cavitt, supra, 33 Cal.4th at p. 193 [relationship established by proof of “logical nexus, beyond mere coincidence of time and place, between the homicidal act and the underlying felony the nonkiller committed or attempted to commit. The temporal relationship is established by proof the felony and the homicidal act were part of one continuous transaction.”]; see also People v. Escobar (1996) 48 Cal.App.4th 999, 1018–1019 [“ ‘[f]irst degree felony murder does not require a strict causal relation between the felony and the killing. The only nexus required is that both are part of one continuous transaction.’ ”].)
Arming
Trujillo’s third insufficiency of evidence claim, as to the arming, is all of one paragraph. It is as follows: “The only witness who testified that appellant was armed was the accomplice Jesus Serna, who testified that he saw appellant carrying a .45 caliber pistol.[ ] [Citation.] But as previously argued, Jesus was an accomplice and his uncorroborated testimony is legally insufficient to support an arming clause. Fernando, the independent witness, didn’t mention that appellant was armed with anything but a cordless drill. [Citation.] Thus, the arming clause was not supported by sufficient evidence.” Trujillo is wrong—Serna’s testimony did not require corroboration.
People v. Maldonado (1999) 72 Cal.App.4th 588 (Maldonado) is dispositive. Maldonado involved the exact argument Trujillo makes here. And rejected it, holding as follows:
“Penal Code section 1111, requiring corroboration, applies by its terms to ‘conviction’ of an ‘offense.’ An enhancement for personal use of a firearm is not an ‘offense,’ and a true finding on an enhancement allegation is not a ‘conviction.’ (People v. Morris (1988) 46 Cal. 3d 1, 16 [‘Firearm enhancements, like special circumstances, are not substantive crimes’].) We conclude, therefore, that accomplice corroboration was not required to prove the gun use allegation.” (Maldonado, supra, 72 Cal.App.4th at p. 597.)
The Maldonado court explained its reasoning: “Accomplice testimony must be corroborated to avoid the evil of an accused being convicted solely on the testimony of a coperpetrator who has a motive to place all the blame on the accused. Independent evidence must therefore connect the accused to the commission of the substantive offense, ‘ “in such a way as reasonably may satisfy a jury that the accomplice is telling the truth.” ’ [Citation.] The independent evidence need not establish all the elements of the underlying offense; once the corroboration sufficiently establishes the accomplice’s believability, the accomplice’s evidence may establish many facts or details not related in the independent testimony.
“We conclude, therefore, that the requirement of accomplice corroboration to convict on the underlying offense is all that Penal Code section 1111 requires; even if a true finding of a gun use enhancement depends exclusively upon the testimony of an accomplice, the corroboration requirement has already satisfied the statutory purposes of establishing the credibility of the accomplice while connecting the particular defendant to the commission of the crime. Unless the defendant has been properly convicted of the underlying offense under corroborated accomplice testimony, the question of personal use of a firearm for enhancement purposes never arises. But when a defendant has already been found guilty of the underlying offense, the accomplice’s credibility as to additional details of the crime, such as which participant used a gun, has at that point been supported by independent corroboration connecting the defendant to the commission of the crime. There is no reason why the trier of fact should not then believe the accomplice's evidence as to the detail of gun use without requiring further specific independent corroboration on that point.” (Maldonado, supra, 72 Cal.App.4th at p. 598.)
Trujillo’s reply brief does not even mention Maldonado, much less attempt to address it.
There Was No Double Jeopardy
Defendant’s final argument is that the trial violated his Fifth Amendment right not to be put in jeopardy twice for the same offense. The argument is based on the fact that he and Khan were first brought to trial in September 2014, at which the court declared a mistrial on the fourth day of that trial. This is what occurred:
On the fourth day of that trial, during the testimony of Abraham, the third prosecution witness, the prosecution advised the court that on the previous afternoon the prosecution had learned from Detective Greg Landeros that the Alameda County Sheriff’s Department was in possession of several CDs containing recordings of telephone calls made from jail and of jail visits. The recordings were of Trujillo and Khan and also the three original codefendants who had been “flipped” and were to testify at trial. The prosecutor believed that all the recordings were in Spanish, and represented that none of the CDs involving the codefendants who had “since flipped” had “been listened to at that point.”
Counsel for Khan stated he did not want to request a continuance to review the recordings as it would be an “enormous” burden and “not a realistic option at all,” and moved for a mistrial. Counsel for Trujillo made a motion to dismiss, and in the event the trial court was not inclined to grant that, was in the alternative asking for a mistrial, expressly noting that he was not waiving “the issue as far as whether jeopardy has attached.” Counsel for Khan joined in Trujillo’s motion.
The trial court first ruled that it would deny the motion to dismiss, observing as follows:
“THE COURT: Because they contain statements made not only by these charged defendants, but by codefendants. And I believe by statute, those are expressly included . . . [¶] . . . [¶] . . . as matters which are proper subjects of discovery, and the district attorney’s obligation to provide it. More—perhaps more important, once Jesus, Abraham, and Tiburcio—and forgive me for using their first names, but that’s the best references, agreed to testify, and then even better, once they have started, they commenced testifying, these become doubly, triply important for the defense counsel to have, because they may contain things which tend to impeach them either directly or indirectly. For example, if they were communicating through third parties with each other. Comparing notes, for example. So, I appreciate the importance of these recordings. No question about it. I know Mr. Marin [the prosecutor] did. That’s why he made it a point to bring it to our attention right away.
“It seems to me, however, if a motion to dismiss might be well taken if it actually—if we became aware that there was exculpatory information contained in these recordings or information that would have that tendency considered with the rest of the evidence which tend to be favorable to the defendants. And that would be especially appropriate to consider with respect to the testifying former codefendants. But I think we can safely assume all of those recordings are in Spanish, and the amount of time it would take to determine that would be rather considerable.
“But I guess the bottom line is this. While I acknowledge that the defendants have been in custody for four years or more and that these things haven’t been disclosed in all that time, number one, does not appear to me that Mr. Marin or the district attorney’s office are culpable in some way, that it was an oversight, it got lost in the shuffle, so to speak. Probably not exactly appropriate. So, it doesn’t appear to me it was intentional or an effort to hide anything.
“We don’t know whether there’s anything in there that’s really beneficial to the defense, and it is available now, albeit it would take a lot of time for defense counsel—for everybody to go through this stuff and have a lot of stuff translated.
“And I consider on the flip side, sure, they’ve been in custody for four years, but they had a right to a speedy trial, and they waived time. So it’s not like the district attorney has dragged this case out for four years given the fact that there were time waivers by these defendants, coupled with the fact he’s got six, seven attorneys, including the D.A. whose schedules end up coming into play. It’s not really a surprise it took four years to get to a trial court, but still this isn’t all just on the D.A., that amount of time, so I can’t really properly consider that aspect of it against the D.A. solely.
“So, while it’s very unfortunate and while I sympathize with the fact that the defendants have been in custody during this time and the pickle it kind of puts everybody in, I don’t think that there’s a, what I would consider to be a due process violation such that it would call for a dismissal of the charges, particularly, given that we don’t even know what’s on these. It could be that after somebody goes through all this stuff, it turned out none of it makes a bit of difference, but the problem is it will take a lot of time to do that, and that’s the dilemma, I know, but it is what it is.
“So, the motions to dismiss are denied. So now we move to the next question. There have been two possibilities thrown out, and I think everybody agrees these are the remaining possibilities.”
After several more pages of colloquy, the court then granted the motions for a mistrial.
Defendants’ double jeopardy argument is brief indeed, barely over two pages, and is based on the fundamental contention that the mistrial in the first trial was based on prosecutorial misconduct, analogizing the records of the jail calls to “Brady evidence known to the prosecution.”
Defendants begin by acknowledging that a claim of double jeopardy generally does not lie where defendant consents to the discharge of the jury before the verdict has been rendered or where the mistrial ruling is based on a finding of legal necessity. But, they argue, “[a]n exception exists when the mistrial is provoked by prosecutorial misconduct,” citing Oregon v. Kennedy (1982) 456 U.S. 667, 673. We are not persuaded.
To begin with, defendants overstate the law, which, as Witkin distills it, is this: “If a motion for mistrial is granted on the basis of prosecutorial misconduct, the Double Jeopardy Clause does not preclude a retrial unless the prosecutor intentionally provoked the mistrial.” (1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Defenses, § 143, pp. 600–601.) The author goes on to discuss Oregon v. Kennedy, supra, 456 U.S. 667, holding to the same effect. No such intent is manifest here.
In any event, we see no prosecutorial misconduct. The trial court expressly found that the recordings had been provided to defense counsel as soon as the prosecutor had become aware of their existence, and that their discovery was simply the result of the recordings being “lost in the shuffle.” The court also expressly found that neither the prosecutor nor his office were “culpable in [any] way.” Given the prosecutor’s unchallenged explanation that he had learned of the existence of the recordings only the day before, and his explanation of the basis for the problem, there was substantial evidence to support the trial court’s conclusion, entitling it to deference on appeal. (People v. Batts (2003) 30 Cal.4th 660, 682–683 [appellate court must give deference to the trial court’s factual determinations and accept them if supported by substantial evidence].)
Given the length of time necessary for any continuance, the trial court found that such a continuance would present extremely difficult problems for the jury, and correctly concluded that legal necessity required a mistrial. Moreover, the trial court here did not grant a mistrial for a mere error of law or procedure, but rather to provide a fair trial to defendants.
Khan’s Appeal
As noted above, count two charged defendants with attempted murder of Fernando. The jury found Khan guilty of attempted voluntary manslaughter. Khan’s sole argument is that there was insufficient evidence to support that conviction, insufficient evidence he intended to kill Fernando.
Voluntary manslaughter is a lesser included offense of murder when the required element of malice is negated by a sudden quarrel or heat of passion, or by an unreasonable but good faith belief in the necessity of self-defense. (See People v. Beltran (2013) 56 Cal.4th 935, 942, 951; People v. Gutierrez (2003) 112 Cal.App.4th 704, 708.) The offense of attempted voluntary manslaughter requires the specific intent to kill (People v. Montes (2003) 112 Cal.App.4th 1543, 1545), a showing that defendant either desired the result of death or knew to a substantial certainty that death would occur. (People v. Smith (2005) 37 Cal.4th 733, 739, citing People v. Davenport (1985) 41 Cal.3d 247, 262.)
Acknowledging the rule in Smith, supra, 37 Cal.4th at p. 739, and that the question is whether any rational trier of fact could have found intent to kill beyond a reasonable doubt, Khan argues no such intent can be found here, an argument fundamentally premised on the claimed disparate effect on the two Lopez brothers of the beating inflicted on them. Specifically: Khan first acknowledges that both he and Trujillo “hit both brothers with their weapons, fists, and feet,” going on to assert that Francisco bore the brunt of the beating, dragged out of the house unconscious. And Khan then asserts: “By contrast, Fernando had only minor bumps and bruises, which he himself describes as ‘scratches’ [citation]; able to untie his hands and outrun his pursuers. Although Fernando [sic: Francisco] was beaten severely, and even more severely at the Khan residence, where he was ‘bleeding and inflamed’ to the point where Tiburcio felt pity for him, he was alive and breathing, and was still alive when he was left at the side of the road. [Citations.] Appellant contends that the evidence with respect to the surviving brother Fernando Lopez is insufficient to show that appellant intended to kill him.”
We review the claim under the principles set forth above, reviewing the evidence in the light most favorable to the verdict (People v. Elliot (2005) 37 Cal.4th 453, 466), and presuming in support of the judgment the existence of facts reasonably drawn by inference from the evidence. (People v. Crittenden (1994) 9 Cal.4th 83, 139.) So reviewed, the claim fails.
The evidence showed that Khan was in charge of the marijuana grow that precipitated the break-in by the Lopez brothers. And consistent with Khan’s role as the person in charge, after the break-in Tiburcio waited for Khan to arrive to determine the next step. Once Khan (and others) arrived, he and Trujillo began beating the Lopez brothers, who had their hands tied behind them, Khan punching Fernando with closed fists multiple times and kicking him. Moreover, while the brothers were being beaten in the garage, they were told, including by Khan, that they were “done for, you know, that was a mistake, . . . that was it for [them].” As Fernando expressly testified, while he was in the garage being beaten he believed his life was in danger.
In sum, Khan was the ringleader of the group that beat up both Lopez brothers; participated himself in both beatings; and commented that the brothers were “done for.” This evidence, coupled with Khan’s involvement in the death of Francisco discussed above, supports that what was done, was done at Khan’s apparent direction. This evidence supports the jury’s verdict that Khan not only intended to kill Francisco, but that, had Fernando not broken free and escaped, the same fate awaited him.
Viewed in the light most favorable to the judgment, Khan’s actions displayed express malice because it can be reasonably inferred that he either desired Fernando’s death when he began beating him in the garage, or that he knew to a substantial certainty that death would occur (at least up until the point that Fernando escaped). This was sufficient evidence that Khan was guilty of attempted voluntary manslaughter as either a perpetrator or an aider and abettor. (See People v. Avila (2009) 46 Cal.4th 680, 701 [express malice may be inferred from defendant’s acts and circumstances of the crime]; People v. Lashley (1991) 1 Cal.App.4th 938, 945–946 [intent to kill “derived from all the circumstances of the attempt, including the putative killer’s actions and words.”]; see also People v. Cudjo (1993) 6 Cal.4th 585, 630 [systematic and prolonged assault committed by multiple blows to the head of victim who was bound and gagged consistent with intent to kill].)
People v. Leon (2010) 181 Cal.App.4th 452, the primary case on which Khan relies, is easily distinguishable. There, the Court of Appeal rejected the People’s claim that firing a single shot into a car containing three occupants was sufficient to establish the shooter’s intent to kill all three, based on the argument “the jury could reasonably infer that [the defendant] intended to kill all of the occupants” because they were all in the “kill zone.” (Id. at p. 465.) There is no “kill zone” issue here.
DISPOSITION
The judgments are affirmed.



_________________________
Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Miller, J.

























A147436; P. v. Khan et al.