P. v. Kim
Filed 6/21/12 P. v. Kim CA2/1
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
RATANAK DAVID KIM,
Defendant and Appellant.
B230598
(Los Angeles
County
Super. Ct.
No. NA073193)
APPEAL from
a judgment of the
Superior Court. Richard R. Romero,
Judge. Affirmed.
John
Lanahan, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Scott A Taryle and David A.
Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
________________________________
Defendant
and Appellant Ratanak David Kim was convicted by a jury of two counts of murder,
two counts of attempted murder, and
various special circumstances and gang and firearm enhancements. He appeals his convictions based on alleged
errors in the trial court’s instructions to the jury. We find no error, and therefore affirm.
THE FACTS
name="_ftnref1" title="">[1]
On January 20, 2007, the Pov family held
a birthday party for Mai Tran, who was then the girlfriend of Sowalnut Pov, one
of the sons in the Pov family. Although
defendant was not invited to the party, he arrived during the evening with two
women: Phally
Sea, a neighbor who lived across
the street, and a woman later identified as Christine Picado, who Sowalnut did
not know. Defendant had an “Asian Boyzâ€
gang tattoo on the back of his head.
Defendant
introduced himself to Sowalnut as “Baby C,†and asked if he could join the
party. Sowalnut told defendant he could
stay, but told him not to invite others, to which defendant agreed. But when Sowalnut later loaned defendant his
cell phone to make a call, defendant used it to invite others.
Sometime
later, about ten other people arrived at the front gate, seeking entry. Sowalnut told defendant that “these guys got
to go.†Defendant replied that they
could come in. “It’s okay, they my
peoples.â€
At that
point a confrontation developed between defendant’s friends, who were trying to
enter the gate, and Sowalnut’s friends, who were trying to block them from
entering. The newcomers became more
aggressive, pushing, shoving, and identifying themselves with Asian Boyz
gang. Meanwhile, some of defendant’s
friends walked across the street toward a car, starting to leave.
Defendant
then pulled a handgun from Picado’s purse, pointed it at Sowalnut’s head at
close range, and said “you should have just let us in. We wasn’t even gonna do nothing.†Then he stepped back and shot three times
into the air. Defendant then walked off
down the street with the girls he had come with, toward a liquor store, saying
that he would return.
Sowalnut
called the police, who came and told them to end the party. A few relatives and friends stayed to help
clean up the rear house, where the party had been. Sometime between a half hour and an hour
later, while he was in the driveway arguing with a friend about having let
defendant into the party, Sowalnut saw flashes of light and heard gunshots from
the front. He turned, and saw his friend
Satiya Sokun (known as “Anthroâ€) fall to the ground. After grabbing his girlfriend and pulling her
down, Sowalnut turned around to see his younger brother Sovannak rise from
where he had been sitting, grabbing his shoulder, then falling to the ground
and screaming to call an ambulance.
Both Satiya
and Sovannak died that night at the hospital.
A number of those present identified defendant as one of the two or
three shooters.
THE CASE
A
five-count information charged defendant with two counts of first degree murder
(counts 1 & 2) (Pen. Code, § 187, subd. (a)); two counts of premeditated
attempted murder (counts 3 & 4) (Pen. Code, §§ 187, subd. (a) & 664);
and one count of assault with a deadly weapon (count 5) (Pen. Code, § 245,
subd. (a)(2)).
title="">[2] As to counts 1 and 2, the information alleged
special circumstances of multiple murders (§ 190.2, subd. (a)(3)), gang and
firearm enhancements (§ 186.22, subd. (b)(1)(C); §12022.53, subds. (b), (c)
& (d)). Counts 3, 4 and 5 alleged
gang and firearm enhancements. (§
186.22, subd. (b)(1)(C); §12022.53, subds. (b) & (c).) Two codefendants, Savoeun Soeur and Kenton
Oeun, were also charged in counts 1, 2 and 4.
Defendant
pled not guilty and denied the allegations.
On December 21, 2010, a jury found him guilty as charged in all five
counts.
degree, it found the special circumstance of multiple murder to be true, and it
found all the allegations to be true, except the allegations in counts 3 and 4
of the personal discharge of a firearm causing great bodily injury or death.
Defendant
was sentenced on January 7, 2011, to state
prison for consecutive terms of life without the possibility of parole as
to counts 1 and 2; to 15 years to life as to
counts 3 and 4; and to 4 years as to count 5. An additional term of 25 years to life was
imposed (but stayed) as to counts 1, 2, and 4, under section 12022.5,
subdivisions (b), (c), (d) and (e); an additional term of 20 years was imposed
(but stayed) as to count 3, under section 12022.53, subdivisions (c) and (e); an
additional term of 10 years was imposed as to count 5, under section 12022.5,
subdivision (a); and an additional term of 10 years was imposed as to count 5,
under section 186.22, subdivision (b).
Defendant received credit for 1,441 days of presentence custody,
including no conduct credits. On January
31, 2011, he filed a timely notice of
appeal.
DISCUSSION
Defendant’s
appeal challenges the instructions given by the trial court to the jury, in two
respects.
The Trial Court Correctly Instructed The Jury With Respect To Guilt As
An Accomplice.
The trial
court instructed the jury that defendant and his codefendants could be found
guilty of the crimes charged, in either of two ways: as a perpetrator of the
crime, or as an aider and abettor of the perpetrator. It instructed the jury, in the language of
CALCRIM No. 401, that “[t]o prove that the defendant is guilty of a crime based
on aiding and abetting that crime, the People must prove that:
“1. The perpetrator committed the crime;
“2. The defendant knew that the perpetrator
intended to commit the crime;
“3. Before or during the commission of the crime,
the defendant intended to aid and abet the perpetrator in committing the crime;
AND
“4. The defendant’s words or conduct did in fact
aid and abet the perpetrator’s commission of the crime.
“Someone
aids and abets a crime if he or she knows the perpetrator’s unlawful purpose
and he or she specifically intends to, and does in fact, aid, facilitate, promote,
encourage, or instigate the perpetrator’s commission of that crime.
“If all of
these requirements are proved, the defendant does not need to actually have
been present when the crime was committed to be guilty as an aider and abettor.
“Among the factors
which may be considered in making the determination of aiding and abetting
are: presence at the scene of the crime,
companionship, and conduct before and after the offense.
“If you
conclude that defendant was present at the scene of the crime or failed to
prevent the crime, you may consider that fact in determining whether the
defendant was an aider and abettor.
However, the fact that a person is present at the scene of a crime or
fails to prevent the crime does not, by itself, make him or her an aider and
abettor.†(Italics added.)
Defendant
challenges the language of the instruction’s second-to-last paragraph
(italicized above). He does not argue
that the challenged language misstates the law.
He claims only that the instruction erroneously permitted
the jury to find him guilty of murder and attempted murder as an aider and
abettor if it concluded that he merely knew the perpetrators, but did nothing
to promote or aid them in the second shooting.
It could have permitted the jury to find him guilty of murder and
attempted murder as an accomplice to the second shooting, he argues, based only
on his having fired shots at the first shooting episode, even if the jury
believed he was not present at the second episode and did not know that others
had returned to the house and “shot it up.â€
objection to the challenged language.
In
evaluating whether giving an instruction was error, the challenged language
must be examined to determine both whether there is a “‘reasonable likelihood’â€
that the jury understood it as the appellant contends they could have done (
525), and if that likelihood exists, “whether the instruction, so understood,
states the applicable law correctly.†(
487.) The instruction’s correctness must
be evaluated on the basis of the entire charge to the jury, not merely from
consideration of an isolated portion of the instruction. (People
v. Harrison (2005) 35 Cal.4th 208.)
Read as a
whole, the instruction is not reasonably susceptible to the interpretation
proposed by defendant (nor does it misstate the law). The instruction told the jury, as defendant
contends, that he might be found to be guilty as an aider and abettor even if
he was not present when the crimes were committed, and that his conduct before
the charged crimes was relevant to the jury’s determination whether he aided
and abetted the crimes’ perpetrator or perpetrators. However, it also told the jury that defendant
could not be found guilty of aiding and abetting the crimes unless he knew that
the perpetrator intended to commit the crimes; unless he intended to aid and
abet the perpetrator in committing the crimes; and unless he “did in fact aid
and abet the perpetrator’s commission of the crime.â€
Unless the
jury wholly disregarded these portions of the instructions, it could not have
found defendant guilty of murder or attempted murder based only on his having
fired shots at the first shooting episode.
In order to find defendant guilty as an aider and abettor the jury had
to have determined that he knew of the perpetrator’s criminal intention in
returning to the party to shoot again; that he intended to aid the perpetrator
in carrying out that criminal intention; and that he in fact aided and abetted
the perpetrator in doing so.
As the
court correctly instructed, his physical presence when the crimes occurred was
a factor the jury could consider in determining whether he was guilty as an
aider and abettor, but it was not essential to that determination. Because the instruction, read as a whole,
neither incorrectly stated the law nor is susceptible to the interpretation
urged by defendant’s appeal, we find no reasonable likelihood that the jury was
misled.
B. The Jury Was Correctly
Instructed That In Order To Convict Defendant It Must Find Defendant Guilty
Beyond A Reasonable Doubt Of Each Element Of The Charged Offenses, Special
Circumstances, and Enhancements.
Defendant’s
appeal charges that the trial court erroneously failed to instruct the jury
that in order to convict defendant, all of the elements of the charged offenses
and special circumstances must be found to have been established beyond a
reasonable doubt. He concedes that the
court properly instructed the jury that its determinations must be based on
proof of defendant’s guilt beyond a reasonable doubt with respect to the
charges of attempted murder, the gang allegation, and the allegations of
gang-related and personal use of a firearm.
But he contends that the instructions with respect to murder and the
special circumstances erroneously failed to require the prosecution to prove
each element of the offense or the enhancement beyond a reasonable doubt.
We
disagree, for a number of reasons.
First, that
is not what the record reflects. The
record shows that the court instructed the jury that in order to convict
defendant of first degree murder, “[t]he People have the burden of proving
beyond a reasonable doubt that the killing was a first degree murder rather
than a lesser crime. If the People have
not met this burden, you must find the defendant not guilty of first degree
murder.†It instructed the jury that
“[t]he People have the burden of proving [the allegation of attempted murder]
beyond a reasonable doubt. If the People
have not met this burden, you must find this allegation has not been
proved.†It instructed the jury that
“[i]f all of you agree that the People have proved beyond a reasonable doubt
that the defendant is guilty of first degree murder,†the jury should complete
and sign that verdict form.
name="_ftnref5" title="">[5] It instructed the jury that “[t]he People
have the burden of proving the special circumstance [with respect to first
degree murder] beyond a reasonable doubt.
If the People have not met this burden, you must find the special
circumstance has not been proved.â€
name="_ftnref6" title="">[6] It instructed the jury that “[i]f the
defendant was not the actual killer, then the People have the burden of proving
beyond a reasonable doubt that he acted with the intent to kill for the special
circumstance of multiple murder to be true.
If the People have not met this burden, you must find the special
circumstance has not been proved true for that defendant.â€
have the burden of proving each allegation [with respect to a pattern of
criminal gang activity] beyond a reasonable doubt. If the People have not met this burden, you
must find that the allegation has not been proved.†It instructed the jury that with respect to
the allegation for each crime that one of the principals personally and
intentionally discharged a firearm, “[t]he People have the burden of proving
each allegation beyond a reasonable doubt.
If the People have not met this burden, you must find that the allegation
has not been proved.†It instructed the
jury that with respect to the allegation for each crime that the defendant
personally used a firearm during the commission of the crime, “[t]he People
have the burden of proving each of the allegations beyond a reasonable
doubt. If the People have not met this
burden, you must find that the allegation has not been proved.†It instructed the jury that with respect to
the allegation for each crime that the defendant personally and intentionally
discharged a firearm during the commission of the crime, “[t]he People have the
burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you
must find that the allegation has not been proved.†And it instructed the jury that to prove the
allegation for each crime that the defendant used a firearm during the crime
causing great bodily injury or death, “[t]he People have the burden of proving
each allegation beyond a reasonable doubt.
If the People have not met this burden, you must find that the
allegation has not been proved.â€
If these
instructions were not alone sufficient, there is more. Before instructing the jury as to the
elements of each crime, special circumstance, and enhancement, the trial court
specifically instructed it that a defendant is presumed to be innocent, and
that the presumption “requires that the People prove a defendant guilty beyond
a reasonable doubt.†And it instructed
the jury that that burden would apply to everything the People must prove: “Whenever I tell you the People must prove
something, I mean they must prove it beyond a reasonable doubt.†“Unless the evidence proves the defendants
guilty beyond a reasonable doubt, they are entitled to an acquittal and you
must find them not guilty.â€
name="_ftnref8" title="">[8]
In light of
these instructions, defendant is simply wrong in contending that the
instructions failed to tell the jury that it must find each element of each
offense and each special circumstance to be proved beyond a reasonable doubt. In addition to the instructions identifying
the offenses and special circumstances listed above, the jury was specifically
instructed that everything the People must prove, it must prove beyond a
reasonable doubt.
Nothing in
the instructions could have led the jury to believe that anything less than
proof beyond a reasonable doubt was required for anything at all that the
People were required to prove. As the
court held in People v. Riley (2010)
185 Cal.App.4th 754, an instruction telling the jury that whenever the court instructs
it that the People must prove something, this means the People must prove it
beyond a reasonable doubt is “sufficient to inform the jury that the
prosecution had the obligation to prove each element beyond a reasonable
doubt.†(Id. at pp. 768-769; see also, People
v. Wyatt (2008) 165 Cal.App.4th 1592, 1601 [same]; People v. Ramos (2008) 163 Cal.App.4th 1082, 1087-1089 [same];
388, 406 [contention that CALCRIM No. 220 fails to instruct jury that each
element must be proved beyond reasonable doubt is frivolous].)
DISPOSITION
The
judgment is affirmed.
NOT TO BE
PUBLISHED.
CHANEY,
J.
We concur:
ROTHSCHILD,
Acting P. J.
JOHNSON,
J.
verdict, omitting controverted facts not germane to the appeal.
Code unless otherwise identified.
