P. v. Khek
Filed 4/25/13 P. v. Khek CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
>
THE PEOPLE, Plaintiff and Respondent, v. KOSAL KIM KHEK et al., Defendants and Appellants. | H036185 (Santa Clara County Super. Ct. No. CC779763) |
A jury
convicted defendants Kosal Kim Khek and Christopher Lee of first degree murder
and found true criminal-street-gang
allegations and, as to Khek, a personal-use-of-deadly-weapon allegation, for
purposes of sentence enhancements.
name="_ftnref1" title="">[1] The trial court sentenced Khek to 26 years to
life and Lee to 32 years to life. On
appeal, defendants contend that (1) the trial court erred by denying their
motions to suppress evidence seized from their homes without a warrant, (2) the
trial court abused its discretion by admitting a gruesome photograph of the
murder victim, (3) the trial court abused its discretion by excluding from
evidence Robert DeJong’s police statements to the effect that the perpetrators
intended only to hurt or injure the victim,
(4) the trial court erred by denying their motions for mistrial grounded on
jury misconduct, and (5) the abstract
of judgment erroneously fails to denote that the imposed restitution fines are
joint and several. Khek additionally
contends that the trial court erred by admitting into evidence DeJong’s police
statements to the effect that DeJong drove to the murder scene. Lee additionally contends that the trial
court erred by (1) instructing the jury in the language of CALCRIM No. 400
(aider and abettor is equally guilty with perpetrator), and (2) failing to
instruct the jury sua sponte on the lesser included offenses of voluntary and
involuntary manslaughter. We agree that
Khek’s abstract does not conform to the judgment. But we otherwise disagree with
defendants. We therefore affirm the
judgment and modify Khek’s abstract to conform to the judgment.
background
Viet
Society (VS) and Strictly Family (SF) are rival criminal street gangs in San
Jose.
Defendants are VS members.
On August 29, 2007, SF gang members
drove to and stopped at the Magic Sands Mobile Home Park where several of
defendants’ friends were sitting on the grass near a swimming pool. One of the friends, Tuan Nguyen, began
arguing with a passenger in the SF car, and the passenger pulled out a gun and
shot Nguyen three times. Another of the
friends recognized the shooter and identified him to the police. Another friend described the car and a
partial license plate number to the police.
The police arrested the shooter and owner of the car for attempted
murder.
When
defendants found out about the shooting, they began to plot revenge against SF
via computer instant messaging. For
example, Lee told Khek that he was going to find out where the shooter lived
and added: “Oh yeah. I found out that this Anthony [Nguyen] kid
from Andrew Hill [High School] lives with Johnny. . . . [¶] . . . [¶] . .
. We start by taking them out one by
one. [¶] . . . [¶] . . . Just hit them
up. Let’s kill this Anthony kid from A
Hill. He’s a kid, too, just like
Tuan. Eye for an eye.†And Khek told Lee: “How does that Anthony kid look like? I am going to fuck his ass up. [¶] . . . [¶]
And run away like an assassin. [¶] . . . [¶] And he won’t know who hit him.†Lee later sent pictures of Anthony Nguyen to
Khek, and Khek told Lee that “I’m going to get him after school so maybe at 3:00.â€
On September 6, 2007, Anthony Nguyen,
Phong Nguyen, Kim Huynk, Lily Phong, and Kevin Huynh were smoking and talking
outside a laundromat and the Q-Cup café.
Khek walked up to Anthony Nguyen and asked whether he was Anthony. When Anthony Nguyen affirmed that he was
Anthony, Khek stabbed him twice and ran away.
Anthony Nguyen died at the scene from massive bleeding. One of the stab wounds penetrated his
shoulder; the other wound penetrated his stomach four and a half inches, cut
through the liver and aorta, and caused six to 12 inches of bowel to protrude
from the body. Phong Nguyen and Kim
Huynk identified Khek to the police.
Police obtained an arrest warrant for Khek, determined that he was on
probation with a search condition, arrested him at his apartment, and seized
his computer. A witness linked Anthony
Nguyen to Lee, and the police determined that Lee was on juvenile probation
with a search condition. The police went
to Lee’s residence, conducted a probation search, and seized Lee’s computer.
motions to suppress
Defendants
contend that the trial court erred by denying their motions to suppress the
evidence seized from their homes. They
argue that the “police lacked knowledge of the terms of the search conditions
upon which the authority to search was asserted.†According to defendants, “an officer’s bare
knowledge that there is a search condition without specific knowledge of its
terms, and, therefore, limitations†does not permit a general search. There is no merit to this contention.
“[U]nder
California law, a search conducted pursuant to a known probation search
condition, even if conducted without reasonable suspicion of criminal activity,
does not violate the Fourth Amendment as long as the search is not undertaken
for harassment or for arbitrary or capricious reasons or in an unreasonable
manner.†(People v. Medina
(2007) 158 Cal.App.4th 1571, 1577.)
There is no authority for
defendants’ proposition that a search conducted pursuant to a known search
condition is unlawful without the additional requirement that the searching
officers know the specific terms and limitations of the search condition. Defendants do not argue that the searches in
this case exceeded the search conditions’ limitations.
admission of murder victim photograph
Defendants
contend that the trial court abused its discretion by admitting a photograph
“showing the abdomen and the extrusion of the intestines over [their]
objection[s]†grounded on Evidence Code section 352 and due process
principles. Defendants fail to carry
their appellate burden.
Defendants
objected to several photographs of the victim proffered by the People arguing
that they were “particularly gruesome†and “offensive.†Ultimately, the trial court admitted one photograph
taken at the scene of the crime. It
explained: “The photographs that depict
the condition of the victim at the time he was first contacted by paramedics
and thereafter at the coroner’s office insofar as they show the
intestines. There is no question that
they are gruesome photos; that’s a fact.
There is no question that they accurately represent what the scene
was. And they are relevant. The question is evaluating the gruesome
nature of them to the probative value of them.
And the photographs are relevant on issues of intent, malice,
premeditation, and deliberation. They
can be described verbally, but certainly pictures express the scene in a
different way than words do. Having said
that, the Court is not prepared to exclude all of those but the Court is not
prepared to admit all the photos either.
The Court believes and the Court has identified in its mind from this
offered packet a photograph that would meet those needs, and it would appear to
be to the Court under 352 to balance in favor of being admitted. Having done that, the Court is satisfied that
the additional photos the cumulative value of those photos or prejudice as it
were outweighs the probative value, and that the other independent bases for
leaving those photos would be admissible pale in regards to the prejudice of
the cumulative value of the photographs.
And that wasn’t stated very artfully but ultimately in weighing its
discretion under 352 the Court is going to permit the People to use photograph
615619. The Court is satisfied that that
photograph represents the condition of the victim at the time paramedics were
treating him at the scene, shows the what will be described I guess as the
results of the abdominal wound.â€
Defendants
simply reargue their trial court position that the photograph was irrelevant
and, in any event, more prejudicial than probative. They fail to explain, however, the manner in
which the trial court’s decision was beyond reason. (People
v. Osband (1996) 13 Cal.4th 622, 666 [abuse of discretion may be found when
the trial court’s ruling falls outside the bounds of reason].) In any event, defendants could not
successfully make such an argument.
Appellate courts are “ ‘often asked
to rule on the propriety of the admission of allegedly gruesome
At base, the applicable rule is simply one of relevance, and the trial
court has broad discretion in determining such relevance. [Citation.]
“ ‘[M]urder is seldom pretty, and pictures, testimony and physical
evidence in such a case are always unpleasant’ †[citation], and we rely on our
trial courts to ensure that relevant, otherwise admissible evidence is not more
prejudicial than probative [citation]. A
trial court’s decision to admit photographs
under Evidence Code section 352
will be upheld on appeal unless the prejudicial effect of such photographs clearly outweighs their probative value.’
†(People v. Lewis (2009) 46
Cal.4th 1255, 1282; accord, People v. Hinton (2006) 37 Cal.4th 839,
896.) The discretion applies equally to
a photograph, which may be
admitted as “pertinent because it showed the ‘nature and placement of the fatal
wounds’ . . . [or] supported the prosecution’s theory of how the murders were
committed [citation] [or] illustrated the testimony of the coroner and
percipient witnesses.†(People v.
Loker (2008) 44 Cal.4th 691, 705.)
Here, the trial court could have
rationally concluded that the photograph was highly relevant. The photograph showed the nature and
brutality of the wounds, which illustrated the People’s theory that the killing
was intentional rather than an assault gone awry and the pathologist’s
testimony about the severity of the injuries.
“The challenged photograph[] simply showed what had been done to
the victim; the revulsion [it] induced is attributable to the acts done, not to
the photograph[].†(People v. Brasure (2008) 42 Cal.4th 1037, 1054.) And the photograph was not “somehow rendered
irrelevant simply because [the] defendant did not dispute the cause of death or
the nature and extent of the victim’s injuries.â€
975.)
Even assuming that the photograph
simply corroborated witness testimony as to how the murder occurred, this does
not establish that the trial court abused its broad discretion in admitting the
photograph into evidence. “
‘[P]rosecutors, it must be remembered, are not obliged to prove their case with
evidence solely from live witnesses; the jury is entitled to see details of the
victims’ bodies to determine if the evidence supports the prosecution’s theory
of the case.’ †(People v. Roldan (2005)
35 Cal.4th 646, 713.) The People are
entitled to prove their case and need not “ ‘accept antiseptic stipulations in
lieu of photographic evidence.’ [Quoting
People v. Pride (1992) 3 Cal.4th 195, 243.]†(People v. Loker, supra, 44 Cal.4th at p.
705.) “Autopsy photographs are
routinely admitted to establish the nature and placement of the victim’s wounds
and to clarify the testimony of prosecution witnesses regarding the crime scene
and the autopsy, even if other evidence may serve the same purposes.†(People
v. Howard (2010) 51 Cal.4th 15, 33.)
We cannot conclude the prejudicial effect of
the photograph so clearly outweighed its probative value to render the trial
court’s ruling an abuse of discretion.
exclusion of dejong’s statements of intent
Defendants
unsuccessfully sought to admit certain statements, which DeJong made to the
police, under the declaration-against-interest exception to the hearsay
rule. (Evid. Code, § 1230 [“Evidence of
a statement by a declarant having sufficient knowledge of the subject is not
made inadmissible . . . if the declarant is unavailable as a witness and the
statement, when made, was so far contrary to the declarant’s pecuniary or
proprietary interest, or so far subjected him to the risk of civil or criminal
liability, . . . that a reasonable man in his position would not have made the
statement unless he believed it to be true.â€].)
They argue that the trial court abused its discretion. They fail to carry their burden to so
demonstrate.
In order
for a statement to be admissible as a declaration against penal interest, “
‘[t]he proponent of such evidence must show “that the declarant is unavailable,
that the declaration was against the declarant’s penal interest, and that the
declaration was sufficiently reliable to warrant admission despite its hearsay
character.†’ [Citation.] ‘The focus of the declaration against
interest exception to the hearsay rule is the basic trustworthiness of the
declaration. [Citations.] In determining whether a statement is truly
against interest within the meaning of Evidence Code section 1230, and hence is
sufficiently trustworthy to be admissible, the court may take into account not
just the words but the circumstances under which they were uttered, the
possible motivation of the declarant, and the declarant’s relationship to the
defendant.’ †(People v. Geier
(2007) 41 Cal.4th 555, 584 (Grier).)
Because of concerns that
declarations against penal interest may contain self-serving and unreliable
information, the exception generally does not “apply to collateral assertions
within declarations against penal interest.â€
(People v. Campa (1984) 36 Cal.3d 870, 882.) Further, “[e]ven a hearsay statement that is
facially inculpatory of the declarant may, when considered in context,
exculpatory effect. [Citation.] Ultimately, . . . ‘whether a statement is
self-inculpatory or not can only be determined by viewing it in context.’
†(People
v. Duarte (2000) 24 Cal.4th 603, 612 (
are “specifically disserving†to the declarant’s penal interests are admissible
under Evidence Code section 1230. (People v. Leach (1975) 15 Cal.3d 419,
441.)
“Courts applying [Evidence
Code] section 1230 to determine the basic trustworthiness of a proffered
declaration are . . . to ‘consider all the surrounding circumstances to
determine if a reasonable person in [the declarant’s] position would have made
the statements if they weren’t true.’ â€
(Duarte, supra,
24 Cal.4th at p. 618.) In general, the
least trustworthy statements are made to the police in order to deflect
criminal responsibility onto others and the most trustworthy occur in
noncoercive and uninhibited settings. (People
v. Greenberger (1997) 58
Cal.App.4th 298, 335.) Generally, when
an inculpatory statement is combined with self-serving exculpatory assertions,
the exculpatory assertions will be considered untrustworthy and inadmissible. (Duarte, supra, at p. 612.)
We review a trial court’s
determination under Evidence Code section 1230 for
an abuse of discretion. (People v.
Brown (2003) 31 Cal.4th 518, 536.)
Thus, the trial court’s decision “ ‘ “will not be disturbed except on a
showing the trial court exercised its discretion in an arbitrary, capricious,
or patently absurd manner that resulted in a manifest miscarriage of justice.â€
’ †(Geier, supra, 41 Cal.4th at p. 585.) This rule requires that the reviewing court
engage in all intendments and presumptions in support of the decision and
Cal.App.3d 999, 1015.) It also requires
that the party claiming abuse of discretion
affirmatively establish the point. (Smith
v. Smith (1969) 1 Cal.App.3d 952, 958.)
DeJong
first told the police that he had been sleeping at his home at the time of the
murder. He then told them that he had
left home near the time of the murder to deliver a friend’s backpack to school. Later in the interview, he denied ever going
to the Q-Cup café and offered that he had learned of a killing at the Q-Cup
from his girlfriend. After taking a
break, the police told DeJong that they were investigating Anthony Nguyen’s
murder at the Q-Cup; did not believe DeJong; and wanted to hear the truth from
DeJong. DeJong then admitted that he
went to the Q-Cup after dropping off the backpack. Before continuing, the officers revealed that
they knew what had happened and cautioned DeJong against lying. DeJong then admitted being at the Q-Cup with
Khek.
Defendants
proffered the following statements from the interview for admission into
evidence.
1.
“We were driving to Q-Cup. We weren’t planning it--this--there wasn’t
any plan it was just supposed to be, you know.
We weren’t--we weren’t about to do it--or he wasn’t--but then. . .
.â€
2.
“And we walked back close to my car and we didn’t know
if we should do it . . . and then, fuck, I don’t know, I took him back home to
his house.â€
3.
[Question: What was
the plan? How were you going to hurt
him?] “Either jump him and if you were
gonna use a weapon, use, not that, not too muc[h] ‘cause we didn’t want him to
die. Just stab him once, twice middle of
the stomach and that was it. But I guess
he got him in the neck too.â€
4.
“Go to his house, stab him, and walk--walks away. [¶] .
. . [¶] That was plan 2.â€
5.
[Question: Who
came up with the stabbing plan, you, [Vinh] Ly, and Khek. How ‘bout [Lee]?] “No, he wasn’t--he wasn’t in [the car].â€
6.
[Dialogue to the effect that DeJong, Khek, and Ly drove
back to Khek’s home and Lee was already there harboring the belief that the
plan had been to jump Anthony Nguyen.]
According
to defendants, the statements involved DeJong in a plan to assault Anthony
Nguyen and, as such, were against his penal interests. The People countered that the statements were
exculpatory rather than incriminatory and, in any event, untrustworthy.
The trial
court ruled that the statements were inadmissible and explained as follows.
“Well, and
I guess that’s where I have to look at the total picture. And the cases on declarations against penal
interest focus on a couple of main points.
Number one, not that the Court has to make a finding of truth but
reliability, trustworthiness is the fulcrum of the exception to the hearsay
rule. That is that the statement must be
contrary to the declarant’s interest such as it’s reasonable to infer that the
declarant wouldn’t make it unless it was true, that is had some--some
foundation there. And the cases are
clear that the Court has to consider the statements in the total context of
them. And the Court has to look at the
motive for the statement. That a
statement on its face though legally incriminatory may really seek to minimize
or exculpate the declarant. If so then
that becomes a struggle for its reliability.
This is one exception as it were where we don’t look at it by an
objectively reasonable standard. You
really have to look at the guts of the subjective motive of the declarant
because that is part of what guides us.
And to the extent it’s partially incriminatory/partially exculpatory
then it can and may be redacted if that works.
But trustworthiness is what it’s all about. Certainly one statement can be inculpatory in
one context and exculpatory in another.
To the extent a statement tell us--you know, tell us about this case and
the declarant lays out in clear form from start to finish a plan. So, for instance, if Mr. DeJong at the front
end had, you know, the cop said we’re investigating this death, we think you
know something, tell us what happens.
And he goes--lays out a whole scenario exactly as he laid out at the
end, one could certainly argue that that’s incriminatory. Incriminatory is not whether the words stated
can be used against him. It is that the
declarant believes it’s against his interest to say what he’s saying. And to the extent what the Court struggles
with here is Mr. DeJong having said I had . . . nothing to do with it, then
having been confronted as it were and then says okay, okay, you got me, I was
there, I thought they were going to do this, I thought this was going to
happen, this is what the plan is--those words while legally arguably
incriminatory to the sense that they can be used against him, and clearly were
considered against him in the decision to file charges against him, if they are
minimizing the involvement, if they are minimizing the offense, you’re right,
he doesn’t have to say, gee whiz, you know, we’re not guilty of murder, we’re
only guilty of manslaughter. But if what
he is saying is, hey, yeah, I was there but we didn’t plan this, this is not
what was expected, what was planned was that he be stabbed in the stomach, that
he would be assaulted, that he would be, you know, that we’d get back that way--is
that minimizing? Absolutely. Is that arguably exculpatory? Absolutely.
Is it incriminatory to the extent it is evidence from which one can find
his guilt? Absolutely. So there’s no question as you described sure
it’s incriminatory of a 245, if it’s not believed it’s incriminatory of a lot
more than that. But the guts of it is
that it is being believed, that it is trustworthy as an accurate statement of
what occurred, that it is reliable; and in its reliable trustworthy form when
looked at in the total context those portions of the statements that suggest
the plan was significantly different than being argued by the People--it is
exculpatory.â€
Here, there
is no dispute that DeJong was unavailable as a witness at trial. He was sworn as a witness and refused to
testify on the ground of self-incrimination.
(People v. Cudjo (1993) 6 Cal.4th 585, 607
the Fifth Amendment right to be silent is unavailable within the meaning of
Thus, the issue before the trial
court was whether the statements at issue were against DeJong’s penal interests
when made and trustworthy. As is apparent from the trial court’s
explanation, these two factors are inherently entwined and, most importantly
for purposes of appellate review, subjective.
Thus, defendants’ arguments, which essentially urge that the trial court
“did not arrive at the correct result,†fail to carry their appellate burden to
affirmatively demonstrate trial court irrationality from the evidence favorable
to the trial court’s ruling.
Here, the
trial court could have rationally concluded that DeJong’s statements were
exculpatory or self-serving and untrustworthy because DeJong lied to the police
and, when caught in the lie, sought to minimize his culpability by posing an
assault-gone-awry scenario. The court in
Duarte held that the trial court had
erred by admitting into evidence statements to the police similar to those at
issue.
In Duarte, the defendant and another man were
charged with shooting at a dwelling.
Before trial, the defendant’s accomplice gave the police a statement
acknowledging participation in the crime, but minimizing his role. A redacted version of the statement was
admitted at the defendant’s trial as an admission against penal interest. Duarte explained that “a hearsay
statement ‘which is in part inculpatory and in part exculpatory (e.g., one
which admits some complicity but places the major responsibility on others)
does not meet the test of trustworthiness and is thus inadmissible.’ †(Duarte, supra, 24 Cal.4th at p. 612, quoting In re Larry C.
(1982) 134 Cal.App.3d 62, 69.) Applying
this rule, Duarte concluded the redacted statement, viewed in context,
was self-serving and thus should have been excluded from evidence. (Duarte, supra, at pp. 612-613.)
Here, the trial court’s lengthy
analysis demonstrates that it exercised its discretion in a manner that was
entirely consistent with the case law for determining the
declaration-against-interest exception to the hearsay rule articulated in
argument that “DeJong’s statements were properly admissible†is no more than a
disagreement with the evidence supporting the trial court’s subjective
evaluation of the proffered evidence. In
short, defendants fail to carry their appellate burden to demonstrate an abuse
of discretion.
Defendants’ claims of
constitutional error are also without merit.
In general, application of the ordinary rules of evidence do not
impermissibly infringe on a defendant’s right to present a defense. (People v. Robinson (2005) 37 Cal.4th
592, 626-627.) Here, because the trial
court found that the hearsay, even if subject to an exception, was unreliable,
excluding it did not violate defendants’ right to present a defense. Defendants
(1973) 410 U.S. 284, is erroneous.
There, the court overturned a state court’s application of its hearsay
rule because it excluded evidence made under circumstances that provided
considerable assurance of the evidence’s reliability. (Id. at pp. 298-302.) Here, defendants cannot complain of a denial
of due process because the hearsay evidence they sought to introduce was
unreliable.
Defendants alternatively urge that
the trial court abused its discretion by excluding evidence of DeJong’s
statements of intent because it admitted DeJong’s inculpatory police statements
requested by the People. We will address
the point in the context of Khek’s claim of error concerning the admission of
DeJong’s inculpatory police statements.
admission of dejong’s inculpatory statements
As part of
its examination of DeJong’s entire police statement, the trial court indicated
that certain statements favoring the People’s case were admissible as
declarations against interest. The
parties therefore agreed to have the evidence admitted via stipulation, subject
to Khek’s objections that the statements transgressed “Khek’s Sixth Amendment
rights†and did not “represent the totality of what [DeJong] said.†Pursuant to the agreement, the parties
arrived at a stipulation, which eliminated from DeJong’s statements any
references to Khek such as, “I went to [Khek’s] house. It was me and [Khek],†“We were driving to
Q-Cup,†“We drove back around and we saw him,†“then he ran out of the car,â€
“and . . . three times he stuck him,†and “then I took him back home.†The prosecutor then read the stipulation to
the jury as follows.
“Number one: On September the 6th, 2007, DeJong drove to
the Q-Cup retail center. [¶] Two: He
parked on a street behind the retail center. [¶] Three: DeJong got out of his vehicle, went inside
the Q-Cup, didn’t buy anything, and walked back out. [¶] Four: After DeJong left the Q-Cup he walked back to
the car, got in, and began to drive away.
He turned north on Yuma--it’s spelled Y-u-m-a. He then turned onto Southside to Senter Road,
went down Senter, saw Anthony Nguyen, did a U-turn, stopped in front of the
retail center, and then parked on the corner.
After stopping there he drove to the back of the retail center. [¶]
Number five: DeJong told the police that
he was there approximately five to ten minutes before the stabbing.â€
Khek
contends that the admission of the stipulation transgressed his right to
confront the witnesses against him as explained in Crawford v. Washington
(2004) 541 U.S. 36 (Crawford).
Khek is incorrect.
In Crawford, supra, 541 U.S. at pages 53
through 54, 68, and Davis v. Washington (2006) 547 U.S. 813, the court
held that admission of testimonial hearsay statements against a defendant
violates the Sixth Amendment confrontation clause when the declarant is not,
and has not previously been, subject to cross-examination. Further, because the confrontation clause applies
to “ ‘witness[es] “against†’ †the accused, that constitutional provision is
implicated only to the extent an out-of-court statement is “admitted ‘against’
defendant.†(People v. Lewis
(2008) 43 Cal.4th 415, 506.)
The issue
of whether a statement is offered against a defendant for the purposes of the
confrontation clause commonly arises in the situation addressed by the Aranda-Bruton
line of cases (People v. Aranda (1965) 63 Cal.2d 518; Bruton v.
United States (1968) 391 U.S. 123, 126-137), in which one defendant’s
confession or inculpatory statement that is offered in a joint trial as
evidence against him by the prosecution also includes evidence that is
inculpatory of a codefendant. If such a
statement is properly redacted to remove reference to the codefendant and a
limiting instruction is given, the statement may be admitted in a joint trial
without violating the codefendant’s right to confrontation, as it is not
considered to be offered against the codefendant within the meaning of the
confrontation clause. (Richardson v.
Marsh (1987) 481 U.S. 200, 211; Gray v. Maryland (1998) 523 U.S.
185, 196.)
Thus, when a statement “contain[s]
no evidence against defendant,†it “cannot implicate the confrontation
clause.†(People v. Stevens
(2007) 41 Cal.4th 182, 199, italics added.)
Here, DeJong’s statement contained
no evidence against Khek because it neither identified Khek nor contained any
inculpatory information as to him.
“Thus, it cannot implicate the confrontation
The same redaction that ‘prevents Bruton error also serves to
prevent Crawford error.’ †(
Because the
trial court admitted DeJong’s inculpatory statements, defendants contend that
the excluded statements of DeJong’s intent to hurt rather than kill were admissible
under Evidence Code section 356. They
again fail to demonstrate that the trial court abused its discretion by
excluding the intent statements. (People
v. Parrish (2007) 152
Cal.App.4th 263, 274 [we review a ruling under Evid. Code, § 356 for abuse of
discretion].)
declaration, conversation, or writing is given in evidence by one party, the
whole on the same subject may be inquired into by an adverse party . . . when a
detached act, declaration, conversation, or writing is
given in evidence, any other act, declaration,
conversation, or writing which is necessary to make it understood may also be
given in evidence.â€
Evidence Code section 356, creates
an exception to the hearsay rule “without labeling it as such.†(People v. Pic’l (1981) 114 Cal.App.3d 824, 863-864, fn. 13,
disapproved on another point in People v. Kimble (1988) 44 Cal.3d 480,
496 & fn. 12.) It is known as
California’s “statutory version of the common law rule of completeness.†(People v. Parrish, supra,
152 Cal.App.4th at p. 269, fn. 3.) “By
its terms [Evidence Code] section 356 allows further inquiry into otherwise
inadmissible matter only, (1) where it relates to the same subject, and (2) it
is necessary to make the already introduced conversation understood. Thus, it has been held: the court must exclude such additional
evidence if not relevant to the conversation already in evidence.†(People
v. Gambos (1970) 5 Cal.App.3d 187, 192-193, italics omitted.) The purpose of the section is to place the
portions of the admitted conversation or writing in context and to “prevent the
use of selected aspects of a conversation, act, declaration, or writing, so as
to create a misleading impression on the subjects addressed.†(People v. Arias (1996) 13 Cal.4th 92,
156 (Arias).)
It is true that “[i]n
applying Evidence Code section
356 the courts do
not draw narrow
lines around the
exact subject of
inquiry. ‘
in evidence constitutes
part of a
the opponent is
entitled to have
placed in evidence
all that was
said or written
by or to
the course of
such conversation
the other statements
have some bearing
upon,
the admission or
declaration in evidence.
. . .’ †(People
v. Hamilton (1989) 48 Cal.3d 1142, 1174 (Hamilton).) However, this standard does not create an
open-sesame for anything said out of court on any subject merely because it was
uttered on the same occasion as the statement admitted in evidence. As noted, Evidence Code section 356 requires
the admission only of “the whole†of an out-of-court statement “on the same
subject†as the part which has already come in.
If “the same subject†means “anything discussed in the same interview,â€
the Legislature’s use of “the same subject†to qualify and limit “the wholeâ€
would be surplusage.
to allow the jury to also learn that the scope of the planned attack had only
involved hurting [Anthony] Nguyen, not killing him†because “the prosecution
had been permitted to introduce evidence of DeJong’s admissions that he had
driven to the crime scene and been involved in the plan to attack Nguyen.â€
As is apparent, Khek patently fails to
demonstrate that the trial court abused its discretion. That the trial court might have decided that
it was appropriate to admit the intent statements under Evidence Code section
356 does not demonstrate that the decision to exclude the evidence was
irrational. In any event, Khek could not
demonstrate an abuse of discretion.
In the statement admitted by stipulation under
the declaration against interest hearsay exception, DeJong essentially stated
that he had driven to the crime scene.
There is nothing incomprehensible or misleading about this statement
that needs clarification from other statements that DeJong made in the same
police interview. Moreover, the
inference that the jury could reasonably draw from the statement is that DeJong
participated in the crime while DeJong’s statements about the scope of the
planned attack that the trial court excluded pertained to DeJong’s motive in
committing the crime. But the motive
statements did not relate to the introduced subject matter--DeJong’s
participation in the crime. They related
to a different subject matter--DeJong’s state of mind. As such, the motive statements may have
explained why DeJong participated in the crime but were unnecessary to the
jury’s understanding that DeJong participated in the crime. (See Arias, supra, 13 Cal.4th at p. 156.) At best, the motive statements were
cumulative in the sense of reinforcing the inference that DeJong participated
in the crime.
It is true that motive statements can sometimes
be on the same subject as the already-admitted evidence. For example,
statement relating what defendant had told her about “ ‘the details’ of the
planned crime.†(Hamilton, supra, 48 Cal.3d at p.
1174.) The trial court allowed the
prosecutor to put on the entire statement, in which the witness also spoke of
the defendant’s motive, over defense counsel’s objection that motive was
outside “ ‘the subject’ †of his evidence.
The reviewing court upheld this ruling because “[d]efendant’s
conversations with [
motive as well
as plan, and
counsel’s questions
distinction between
On the other hand, if the counsel
in Hamilton had clearly defined
“plan†as “the subject†for which he was offering the evidence, his objection
that “motive†was outside that subject would have been well-founded.
Here, the People offered DeJong’s
statement to prove DeJong’s participation in the crime. The trial court could have rationally
concluded that DeJong’s motive was outside that subject.
jury misconduct
Defendants
contend that the trial court erred by denying their motions for a mistrial
grounded on jury misconduct. They urge that the jury received extraneous
information.
After the jury had sent a note to
the trial court, the trial court held a hearing after excusing from the hearing
Juror No. 5, Juror No. 9, Alternate Juror No. 1, and Alternate Juror No. 4, who
professed no knowledge of the purpose for the hearing. The trial court’s questioning of the
remaining jurors revealed the following.
1.
Juror No. 10 stated that, when the jury was in the
waiting room during the previous week, a young boy was pointing his cell phone
at the jury as if he were taking the jury’s picture; Alternate Juror No. 3
stated that he had seen the boy raising his cell phone as if he were snapping
pictures and Juror No. 3 stated that it looked as if the boy were taking
pictures; no other jurors saw the incident but the jurors had discussed the
incident before Juror No. 10 wrote a note to the trial court to express
concerns about the incident.
2.
Juror No. 10 stated that, on one occasion when the
attorneys had approached the bench, Lee looked at the jury, made a hand gesture
at his chin with his hand shaped like a gun, and scratched his chin when the
attorneys turned around and returned to the defense table; no other jurors saw
the incident but the jurors (except Juror No. 4 and Juror No. 11) had discussed
the incident before Juror No. 10 wrote the note to the trial court (the trial
court excused Juror No. 4 and Juror No. 11 from the hearing after learning that
they did not participate in the jury discussion about the gun incident).
Outside the jury’s presence, the parties
identified the young boy as Anthony Nguyen’s brother and the trial court called
him to testify. The boy stated that he
possessed a cell phone but it did not have the ability to take photographs. The trial court then called the boy’s father
who testified that the boy’s cell phone did not have the ability to take
photographs. It then called back the
individual jurors separately, questioned them in more detail about the two
incidents, allowed defendants’ attorneys to question them, and admonished them
against talking about the case among themselves before the case was submitted
to them.
At the conclusion of this process, Khek moved for a mistrial grounded on
the hand gesture. He argued that Lee had
threatened the jury and he could not therefore “receive a fair trial because of
the actions of Mr. Lee in a case where there are gang allegations, where there
are incredible amounts of evidence showing them doing things together, for each
other, with each other. I don’t know how
to describe Mr. Lee’s threatening of jurors in any other way other than just
outrageous conduct.†Lee moved to
discharge Juror No. 10 and Juror No. 3 because of the hand gesture.
be fair and impartial†and Alternate Juror No. 3 “voiced some opinions that
suggest that he has been significantly impacted by what he believed he
saw.†The People countered that no one
except Juror No. 10 had seen the hand gesture and “not one juror on this case
has said they have a serious concern about their own safety. Jury--Juror 10 said that but her conducts may
belie her words.†However, the People
acknowledged that Juror No. 10 had transgressed the trial court’s repeated admonishments
against talking to others about the case:
“[S]he did it not to a single person but did it collectively
almost. She also apparently talked to
her husband, which she didn’t bring up, which she should have brought up, which
she should have known was wrong, and that’s of concern that she wasn’t
completely forthcoming; and the Court has repeatedly mentioned don’t discuss
the case with anyone.â€
The trial court declined to declare a mistrial
but agreed to excuse Juror No. 10 and Alternate Juror No. 3. It explained as follows.
“The Court, as the record will reflect, spent a
great deal of time examining the jurors.
Although frankly not required and it’s strictly within the Court’s
discretion, the Court felt the issues were important enough to allow counsel to
voir dire the jurors as appropriate because the Court doesn’t perceive itself
as having any particularized wisdom in fact gathering. Having said that while counsel were examining
the jurors, . . . the Court had the opportunity to observe the jurors. . . .
[¶] The Court nowhere is making any factual findings. It is evident that Juror Number 10
sincerely--and frankly, [trial court addresses Lee’s counsel], I don’t think
there was the equivalency--the--I don’t think she was necessarily backing
down. I think Juror Number 10 is adamant
about what she believes she saw and she honestly believes she saw Mr. Lee make
the gesture that she described. At most
she would acknowledge that she couldn’t know who was in his mind when she
believes he made it. She has told us
what her interpretation was. [¶] It is clear that none of the other 15 jurors
saw the gesture or any type of gesture from Mr. Lee or Mr. Khek that would
approximate the description of Juror Number 10.
None, and all clearly conceded, none are in a position to evaluate
whether it happened or it didn’t happen. [¶] You challenged Juror Number 10, if
any, challenged Juror Number 10’s credibility for her honest belief in what she
says she saw. But all of the rest were
very frank that they didn’t see anything.
Notwithstanding that, Juror Number 10 did discuss her observations with
most if not all of the balance of the jurors.
There were several that were not involved in the discussion. And it was a combination of her telling them
what she saw combined with showing them the note she wrote to give us on Monday
and seeking their support as it were of the presentation of the note. For her reasons and--speculation may be the
wrong word--there are inferences to be drawn as to why she would do that. I think she has concerns. I think she wanted support from the balance
of the jury, and notwithstanding the admonitions she shared all that
information and sought to perhaps bolster the note she referenced to the jurors
she showed it to some of them the issues regarding the young man and the
alleged perceptions or the perceptions of the cell phone and/or photos. Her observations of the young man involved
her assumptions that it was a camera, and frankly most of the other jurors
related their assumptions. This started
apparently with one or more jurors standing in the hallway seeing the young man
who apparently was making his presence aware to those around him because he’s
an eleven year old and causing one of the jurors to question, as Juror Number 3
told us, I wonder if he can take pictures.
And that then evolved into certainly Juror Number 10 being concerned
that their security was at risk if the young man was taking pictures of one or
more of the jurors. To the extent there
are facts, those are the facts. [¶] The only additional facts have to do with
the discussion between Alternate Juror Number 3, Alternate Juror Number 1, and
Juror Number 9 Monday after the noon recess prior to the beginning of the
afternoon when we were in fact joined by alternate Juror Number 3. And the issue of the comments made by
Alternate Juror Number 3 to Juror Number 9 not heard by [A]lternate Juror
Number 1 . . . . [¶] . . . [¶] Alternate Juror Number 3 has--the questions the
Court and counsel presented to him, his answers were all straight forward. He presented a demeanor that suggested no
problem with moving forward. Some
concerns about the issues regarding the camera.
The flavor of the conversation with Juror Number 9, however, gives the
Court pause for concern. That--not that
he is failing to be candid, because I’m not sure whether he failed to deliver
on specific questions asked, but he clearly understood the subjects of
discussion. He immediately preceding [
Jurors 9 and Alternate [No.] 1 that expressed his concerns, his feelings
vis-Ã -vis retaliation, how those issues could be dealt with, protection, and
conveyed a state of mind that the Court feels compromises his ability to be a
fair and impartial juror. And the Court
is going to exclude--is excusing, discharging Alternate Juror Number 3 as well
as Juror Number 10. [¶] As to the balance of the jurors I’m not going to walk
through them individually. They’ve been
outlined. Their words will stand for
themselves. I will say as to the
remain[ing] jurors there was nothing in their demeanor, their responses, that
suggested other than an honest understanding of the law, an honest
understanding of their responsibility, the unfortunate as suspects of receiving
the information they received, clear recognition that none of those are facts
in the case proven as facts in the case, and will not be considered by them in
any way, shape, or form; and the Court finds no concern or basis ultimately to
cause excusal of any of the rest of the jurors beyond the two that have been
outlined.â€
After excusing Juror No. 10 and Alternate Juror
No. 3, the trial court admonished the jury against speculating about the
jurors’ absence and reminded the jury to bring concerns or issues about the
case to it rather than discussing the point among themselves. It then replaced Juror No. 10 with Alternate
Juror No. 4.
Defendants argue that the trial court should have
granted their motions for a mistrial
court excused two jurors--and the presumption of prejudice was not
dispelled. They dispute that the
discharge of Juror No. 10 and Alternate Juror No. 3 was
an adequate remedy.
“A defendant accused of a crime has a
constitutional right to a trial by unbiased, impartial jurors. (U.S. Const., 6th & 14th Amends.; Cal.
Const., art. I, § 16. . . .) A defendant
is ‘entitled to be tried by 12, not 11, impartial and unprejudiced jurors. “Because a defendant charged with a crime has
a right to the unanimous verdict of 12 impartial jurors [citation], it is
settled that a conviction cannot stand if even a single juror has been
improperly influenced.†’ †(People
v. Nesler (1997) 16 Cal.4th 561, 578; People v. Cissna (2010) 182
Cal.App.4th 1105, 1123; People v. Duran (1996) 50 Cal.App.4th 103, 111.)
“A sitting juror’s
involuntary exposure to events outside the trial evidence, even if not ‘
prejudice. Such situations may include
attempts by nonjurors to tamper with the jury, as by
bribery or intimidation.†(
294-295.) “[T]ampering contact or
communication with a sitting juror[] usually raises a
rebuttable ‘presumption’ of prejudice.â€
295.) “Still, whether an individual
verdict must be overturned for jury misconduct
or irregularity ‘ “ ‘is resolved by reference to the substantial likelihood
test, an objective standard.’ †’ [Citations.]
Any presumption of prejudice is rebutted, and the verdict will not be
disturbed, if the entire record in the particular case, including the nature of
the misconduct or other event, and the surrounding
circumstances, indicates there is no reasonable probability of prejudice, i.e.,
no substantial likelihood that one or more jurors
were actually biased against the defendant.â€
(Id. at p. 296.) We
independently determine whether there was such a
probability of prejudice. (People v.
Danks (2004) 32 Cal.4th 269, 303.)
It is unclear, however, whether the rule of
irregularity regarding exposure to events outside the trial evidence “applies
to the jurors’ perceptions of the defendant, particularly
when the defendant engages in disruptive or otherwise improper conduct in
court. As a matter of policy, a
defendant is not permitted to profit from his own misconduct.†(People
v. Williams (1988) 44
Cal.3d 1127, 1156 (Williams).)
In Williams, an alternate juror informed the trial
court that the defendant had threatened the jury when it
returned the verdict in the guilt phase of a capital trial. (Williams, supra, 44 Cal.3d at p. 1154.) The issue of “invited misconductâ€
also arose in People v. Hines (1997) 15 Cal.4th 997, 1053-1055. In that case, two jurors
received telephone calls from the defendant at home, and discussed the calls
with individuals outside the jury, including the
police. (Id. at pp.
1053-1054.) Citing Williams, the Supreme Court ruled: “Defendant is barred from complaining about
any conceivable misconduct . . . in accepting his call
because he invited any ‘misconduct’ by making the
telephone call in the first place.
[Citation.] Nor did [the
others: Although they were not permitted
to discuss the facts of defendant’s case with others, this prohibition
did not extend to the telephone calls he made to them.†(Id. at p. 1054, italics added.)
Thus, as a matter of policy, Lee cannot complain
that the jurors engaged in misconduct
based on his own hand gestures, acts that Lee concedes
the jurors construed as improper.
As to Khek,
proposition that an irregularity occurred upon the jury as a whole simply
because the trial court found that an irregularity had occurred as to Juror No.
10 and Alternate Juror No. 3. “ ‘[W]hen
the alleged misconduct involves an unauthorized communication
with or by a juror, the presumption [of prejudice] does
not arise unless there is a showing that the content of the communication was
about the matter pending before the jury, i.e., the guilt
or innocence of the defendant.’ †(In
re Hamilton, supra,
20 Cal.4th at pp. 305-306.) Here, none
of the deciding members of the jury saw Lee’s gesture. The communicative content of the gesture was
not about guilt or innocence. And the
jurors’ discussions about the gesture were about the gesture, not the facts of
the case. The presumption of prejudice
simply did not arise in this case.
In any event, even assuming that the
constituted an irregularity, the presumption of prejudice
was rebutted by evidence that no prejudice actually occurred. (People v. Honeycutt (1977) 20 Cal.3d
150, 156.) The Williams court explained:
“ ‘[W]hether a defendant has been injured by jury misconduct in
receiving evidence outside of court necessarily depends upon whether the jury’s
impartiality has been adversely affected, whether the prosecutor’s burden of
proof has been lightened and whether any asserted defense has been
contradicted. If the answer to any of
these questions is in the affirmative, the defendant has been prejudiced and
the conviction must be reversed.’ †(Williams, supra, 44 Cal.3d at p.
1156.)
Here, the trial court implicitly concluded that
the jury’s impartiality had not been adversely affected. It articulated that the demeanor and
responses of the remaining jurors convinced it that those jurors had an honest
understanding of the law and their responsibility such that they would not
consider the hand gesture in any way, shape, or form. We accept this determination. (People
v. Nesler, supra, 16 Cal.4th at p.
582 & fn. 5 [“We accept the trial court’s credibility determinations and
findings on questions of historical fact if supported by substantial
evidence.â€].) And, again, the gesture
was not about guilt or innocence; it did not cause the jury to converse about
guilt or innocence; and it was not inherently prejudicial because none of the
remaining jurors saw the gesture.
Moreover, the trial court admonished the jury against speculating about
the reasons why Juror No. 10 and Alternate Juror No. 3 had been excused. There is no reasonable probability of
prejudice.
Khek makes no reasoned argument to the
contrary. He points out that seven of
the remaining jurors signed Juror No. 10’s note to the trial court “to express
their concerns,†some of the remaining jurors “acknowledged having heard about
the gun gesture,†two jurors felt “uncomfortable,†Juror No. 9 heard Alternate
Juror No. 3 boast “of his ability to obtain protection from his friends and/or
relatives in law enforcement if needed to deal with a threat arising from this
very trial,†Juror No. 9 “acknowledged being a ‘little concerned,’ †and Juror
No. 8 “began scrutinizing . . . Lee’s courtroom behavior more carefully.†He asserts that jurors do not always follow
admonitions and the jury’s four and one-half hour deliberation after a two-week
trial indicates a “rush to judgment.â€
Again, the presumption of prejudice did not arise
in this case and there is no reasonable probability of prejudice in any event.
The parties do not focus on the cell phone incident. They mention it only in passing. In any event, if it is misconduct, the
incident is more accurately characterized as spectator misconduct.
“Misconduct on the part of
a spectator is a ground for mistrial if the
defendant or influence the verdict.
[Citations.] A trial court is
afforded broad discretion in determining whether the conduct of a spectator is
prejudicial.†(People v. Lucero
(1988) 44 Cal.3d 1006, 1022.) In cases
of spectator misconduct, prejudice is not presumed. (People v. Hill (1992) 3 Cal.4th 959,
1002, disapproved on another point in Price v. Superior Court (2001) 25
Cal.4th 1046, 1069.) “ ‘[I]t is
generally assumed that such errors are cured by admonition, unless the record
demonstrates the misconduct resulted in a miscarriage of
justice.’ †(People v. Hill, supra, at p. 1002.)
The cell phone incident was not of such a
character as to prejudice defendants or influence the verdict for the same
reasons we have given about the hand gesture incident. The jurors who saw the boy did not know
whether he was, in fact, photographing them; being photographed did not pertain
to defendants’ guilt or innocence; being photographed did not cause the jurors
to converse about guilt or innocence; being photographed is not inherently
prejudicial; and the trial court admonished the jurors and became satisfied
that the incident had not adversely affected the jurors’
impartiality.
calcrim no. 400
Murder is
an unlawful killing committed with malice aforethought. (People v. Cravens (2012) 53 Cal.4th
500, 507.) Malice may be express or
implied; it is express when the defendant intends to kill, and it is implied
when the defendant deliberately commits an act that is dangerous to human life
and acts with knowledge of the danger and a conscious disregard for life. (Ibid.)
Once the
jury has found that the defendant committed murder (i.e., a killing with
express or implied malice), it must then determine if the murder was of the
first or second degree.
A defendant may be culpable for a
crime as a direct perpetrator or as an aider and abettor. To be culpable as an aider and abettor, the
defendant must have acted with knowledge of the criminal purpose of the
perpetrator and with an intent or purpose either of committing, or of
encouraging or facilitating commission of, the offense. (People v. McCoy
(2001) 25 Cal.4th 1111, 1118.) The aider
and abettor is liable for (1) the offense committed by the perpetrator that was
intended by the aider and abettor (the target offense), and (2) other offenses
committed by the perpetrator that were not intended by the aider and abettor
but that were the natural and probable consequence of the intended
offense. (Id.
at p. 1117; People v. Prettyman (1996) 14 Cal.4th 248, 260-261 (
Concerning the target offense
intended by the aider and abettor, the aider and abettor’s mens rea is the
intent associated with the target offense.
(People v. McCoy, supra, 25 Cal.4th at p. 1118 & fn. 1.) In some circumstances the aider and abettor
may be found guilty of a target offense that is greater or lesser than the
offense attributed to the perpetrator, depending on the particular states of
mind of the aider and abettor and the perpetrator and the availability of
defenses to a particular crime. (
