People v. Hajek and Vo

Filed 5/5/14

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S049626

v. )

) Santa Clara County

STEPHEN EDWARD HAJEK ) Super. Ct. No. 148113

AND LOI TAN VO, )

)

Defendants and Appellants. )

____________________________________)

Defendants Stephen Edward Hajek and Loi Tan Vo were convicted of the

1991 murder of Su Hung (Pen. Code, § 187)1 as to which lying-in-wait and

torture-murder special circumstances were found true (former § 190.2, subd.

(a)(15), (18)). Additionally, defendants were convicted of four counts of

premeditated attempted murder (§§ 664/187), one count of kidnapping (§ 207,

subd. (a)), three counts of false imprisonment (§§ 236/237), one count of robbery

(§ 211, 212.5, subd. (a)), and one count of first degree burglary (§§ 459, 460.1).

Hajek was separately convicted of dissuading a witness. (§ 136.1, subd. (c)(1).)

The jury also found true firearm use allegations as to Hajek and deadly or

dangerous weapon use allegations as to Vo, in their commission of the murder,

1 All further unlabeled statutory references are to the Penal Code.

attempted murder, kidnapping, and false imprisonment counts. (Former §§ 12022,

subd. (b), 12022.5, subd. (a).)

Following the penalty phase trial, the jury returned verdicts of death as to

each defendant, which the trial court declined to modify. The court sentenced

each defendant to death for the murder of Su Hung, and on the remaining counts,

sentenced Hajek to life plus 21 years and Vo to life plus 9 years. This appeal is

automatic.

For the reasons set forth herein, we reverse the lying-in-wait special-

circumstance findings as to both defendants. (See post, pt. II.B.1.a.) We also

order that the firearm use enhancements found true as to defendant Hajek be

struck and replaced with deadly or dangerous weapon use enhancements. (See

post, pt. II.B.1.d.) In all other respects, the death judgments are affirmed.

I. FACTS

A. Guilt Phase

On the morning of January 18, 1991, defendants gained access to the Wang

residence, where they held various members of the family hostage for several

hours.2 At some point, they killed Su Hung, the family’s 73-year-old

grandmother, who was visiting from Taiwan. The attack on the Wang family was

in retaliation for a minor altercation a few days earlier between the family’s

teenage daughter, Ellen, defendant Hajek, and a girl named Lori Nguyen, who was

a friend of both defendants. On the night before the attack, Hajek told another

friend that he was going to the house of an unidentified girl who had threatened

him. He said he planned to kill each member of her family while she watched and

2 For clarity, we refer to individual members of the Wang family by their

first names and to the family’s father, Chi Ching Wang, as “Tony,” the name used

at trial.

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then kill her last. The next day, he and Vo went to the Wang residence, where the

events transpired that led to the charges in this case.

1. Prosecution Evidence

a. The altercation between Hajek, Nguyen, and Ellen

On January 14, 1991, between 4:30 and 5:00 p.m., Hajek and his friend,

Lori Nguyen, were sitting in front of a Baskin-Robbins store eating ice cream.

Hajek was 18 years old and Nguyen was 15 or 16. Ellen, also 16, and six friends

walked past the pair on their way to a Fry’s Electronics store. Ellen had once been

good friends with Nguyen, but they had had a falling out. She had never seen

Hajek before. One of Ellen’s friends, Tina Huynh, testified that Nguyen was

“dogging” or giving them “a dirty look” as they passed. Huynh called Nguyen a

“bitch,” and Nguyen responded in kind.

Subsequently, as Ellen and her friends crossed a parking lot, Hajek drove

up in a white van and stopped. Nguyen was in the passenger seat. She and Huynh

exchanged words and began to struggle, while Nguyen was still sitting in the car

and Huynh was standing outside. Huynh’s sister, Jacee, and then Ellen joined the

fight with Nguyen. Noticing the car’s ignition had been pulled out, Ellen yelled,

“The car is picked,” meaning it had been stolen. Hajek exited the van, picked

Ellen up, and threw her into some bushes. Ellen and Hajek cursed each other

before Hajek and Nguyen drove off.

Hajek and Nguyen went to Hajek’s house. At some point in the evening

Ellen and Hajek spoke on the phone. Ellen asked Hajek if he had a problem with

her or wanted to start something with her. The conversation ended with their

screaming obscenities at each other. Ellen testified she had no further

communication with Hajek, but Nguyen testified that Ellen made a series of

“crank calls” to Hajek that evening and threatened to have friends of hers kill him.

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Nguyen testified that Hajek threatened Ellen in return and “probably” discussed

getting revenge. At some point, while Nguyen was still at Hajek’s house,

defendant Vo showed up. Vo was present when some of the crank calls from

Ellen to Hajek were made.

Vo and Hajek were very close friends and part of a group of friends that

also included Nguyen. Vo harbored intense feelings for Nguyen that she did not

reciprocate because she had a boyfriend. Hajek also had romantic feelings toward

Nguyen that she did not return.

b. Hajek’s conversation with Tevya Moriarty

On the evening of January 17, 1991, three days after the fight, Hajek

telephoned Tevya Moriarty. Moriarty and Hajek had worked together at the Home

Express during the summer of 1990. Moriarty had been on friendly terms with

Hajek, though he was not a close friend. Moriarty asked him if he was going out

with anyone. Hajek told her that he was going out with an Asian girl and that they

had been involved in a fight after getting ice cream a few days earlier. He told her

that he had pushed a girl into some bushes during the incident and that he wanted

to get back at that girl. He said he was going to go to the girl’s house and kill her

and her family. Hajek told Moriarty he planned to kill the girl’s family first and to

kill her last because he “wanted to look in her eyes when he killed her.” He also

said he was going to make the incident look like a robbery. Hajek said all this in a

conversational tone of voice. Moriarty did not believe he was really planning to

do these acts.

The next day, Moriarty saw a television report of the crimes at the Wang

residence and told her parents about her conversation with Hajek. When she

learned that Hajek was one of the culprits, she went to the police. Moriarty talked

to the police on January 21, 1991, and told them it was her impression Hajek was

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going to enlist two other people to commit the murder and robbery. However, at

trial, she could not recall what in the conversation had given her that impression

and testified that Hajek spoke only of himself.

c. Hajek and Vo gain entry into the Wang residence

On January 18, 1991, the Wang family — parents Cary and Tony, and

daughters Ellen and 10-year-old Alice — lived on Silver Leaf Road in San Jose.

Also staying with them was 73-year-old Su Hung, Cary’s mother, visiting from

Taiwan. On the morning of January 18, only Su Hung and Alice were at home.

Around 10 a.m., Hajek and Vo came to the door. Alice answered it. They

told her they wanted to see Ellen because they had a sweater for her. Alice told

them Ellen was not home. Vo handed her the sweater, and they left. A few

minutes later, defendants returned. When Alice answered the door, they said they

wanted to write a note to Ellen. Alice testified she did not invite defendants inside

the house, but “[t]hey just came in.” Alice gave them a pen and paper. Su Hung

was in the kitchen. They wrote the note, and Alice put it on the sweater. They

then called Alice over, and Hajek pointed a gun at her. Hajek told Alice to get her

grandmother.

Alice had to use the bathroom. Alice testified Vo told her to take her

grandmother with her. When Alice and Su Hung came out of the bathroom, Vo

tied up Su Hung using rope from the laundry room, which he cut with scissors or a

knife. He then blindfolded her. Su Hung was trembling but compliant. Vo took

her upstairs while Hajek remained downstairs with Alice, watching cartoons.

Although Hajek had put the gun in his waistband, Alice was frightened. Vo came

downstairs, and then Hajek took Alice to the upstairs bathroom, where she

remained for what seemed like a long time before defendants told her she could

come out. While she was in the bathroom, she heard clattering noises, like

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marbles or coins. Vo took her downstairs; 10 minutes later Hajek followed. At

some point, Alice’s mother, Cary, called the house. Alice was allowed to answer

the phone, but defendants told her to speak English.

Alice testified that Cary told her she was coming home and, as previously

planned, she was going to take Su Hung to the beauty salon, and then the three of

them would go out to lunch. Alice did not typically speak to her mother in

English, and Cary asked if anything was wrong. Alice was frightened and said no.

Sometime later, maybe a half-hour, Alice heard the garage door open. Vo went

into the downstairs bathroom after taking a knife from the kitchen. Before he

went into the bathroom, Vo told Alice to stay seated on the sofa and to try to calm

her mother down.

Cary testified that when she entered the house through the garage, Vo came

out of the bathroom, placed a hand over her mouth, and with the other hand held a

knife to her throat. Vo told Cary not to scream, or he would kill her whole family.

Both he and Hajek were wearing gloves. Cary was upset and frightened. She told

Vo to put down his knife and she would give him anything he wanted as long as

he did not hurt her family. She ended up sitting with Vo at the dining room table.

Vo told Cary he was looking for Ellen because she had had an argument with his

relative at school. At some point, Vo returned the knife to the kitchen. Alice told

her mother the men had had a gun and had pointed it at her. Hajek also told her he

had two guns, although Cary never saw a gun.

Cary repeatedly begged defendants to allow her to see her mother because

Su Hung suffered from high blood pressure. Hajek went upstairs alone, and then a

second time he went upstairs with Alice. When Alice went upstairs with Hajek,

she was not allowed to go into the room where her grandmother was being held.

She stood at the doorway and “peeked” into the room, but could only see her

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grandmother’s legs. Alice reported to her mother that her grandmother was

reading a newspaper.3

d. Vo and Cary go to Ellen’s school; Tony comes home

Cary told defendants that Ellen would be home around 3:00 p.m. Vo said

he could not wait that long and demanded that Cary take him to Ellen’s school.

He told her that Ellen and his relative had had an argument at school and that he

had come to the Wang residence to teach her a lesson. He said she would know

what kind of lesson when Ellen got home. Cary testified that when Vo said this,

he “look[ed] mean.” Before they left, Cary asked if she could cancel some

appointments, a ruse to call her husband, Tony. She called Tony and told him she

needed to cancel a 1:00 o’clock appointment. Tony was surprised to hear from

her. She sounded strange to him. He asked Cary if she meant he should come

home at 1:00 o’clock. She said yes. Cary was allowed to make a second call to

her office, a travel agency, where she spoke to Sofia Kuo. She told Kuo she had to

cancel an appointment because there was an emergency at home “similar to

something that happened before.” Cary was alluding to the burglary of her house

two years earlier. She hoped the hint would alert Kuo.

Vo and Cary left in Cary’s car. Vo told her he had a gun. When they got to

Ellen’s school, Cary was told that Ellen was not there. Vo stayed at her side.

After they left the school, Cary told him she had emergency airline tickets that she

needed to drop off at her office. When they arrived at the office, Cary managed to

tell a man named Paul, who worked next door, to call the police. She and Vo then

3 There is some discrepancy in the testimony of Alice, Cary, and Tony about

whether Alice reported her grandmother was reading a newspaper the first time

she looked in on her, when only Cary was at home, or the second time, when both

parents were present. What is clear is that on each occasion, Alice was only

permitted a glimpse of her grandmother and did not see her face or talk to her.

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drove back to the Wang residence. On the way, they passed a police car and Vo

asked her whether she had called the police. He had repeatedly threatened to kill

her family if she called the police. When they got to her house, Vo ordered her to

park in the garage.

While Cary and Vo were out, Tony had come home. He testified that when

he entered the house, he saw Alice sitting with Hajek at the dining room table

playing cards. Alice told him that defendants had guns and a knife. She also told

him he could not use the telephone or go upstairs. Hajek had one of his hands in

his pocket. Tony was scared. He sat down at the table and asked Alice where his

wife had gone. She told him Cary and another man had gone to look for Ellen.

Tony asked Hajek what he wanted. Hajek said there was a problem between Ellen

and his girlfriend. He wanted to “bring her home and then scare her.” Tony said

if there was a problem, maybe there was something they could do to solve it.

Hajek said they had to wait until Ellen was home. Tony played cards with Alice

and Hajek. Hajek kept one of his hands in his pocket. He was wearing gloves.

When Cary and Vo arrived, Tony offered defendants money and to have his

daughter apologize. One of them said there was nothing to do until Ellen came

home. Tony testified that each defendant went upstairs separately “many times,”

but he could not remember how many times or how long they remained upstairs.

At one point, Hajek again took Alice upstairs to the room where Su Hung was

being held. Alice thought she was sleeping but did not get a very clear look at her.

Hajek ordered Alice to tell her parents that her grandmother was okay.

Vo told Hajek that Tony looked very strong and Vo needed to tie him up.

Vo tied Tony’s hands behind his back, and Hajek took him upstairs to the master

bedroom. Tony asked to see his mother-in-law, but Hajek refused and said she

was fine. In the master bedroom, Hajek tied Tony to the bed. Hajek threatened to

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kill Tony if he screamed. Tony was frightened. Tony asked to speak to Vo

because he thought it would be easier to talk to another Asian. Vo came into the

room and sat down by the bed. He spoke to Tony in a “very mean” way and

threatened to kill him if he yelled. Then Vo gagged him.

e. The police arrive and capture defendants; Su Hung’s body is

discovered

While Tony was being taken upstairs, a Mr. Cho called. He worked with

Paul, the man Cary had earlier told to call the police. Cary answered the phone.

Cho told her to answer yes or no and asked if she needed the police right away.

Cary said yes. A few minutes later the doorbell rang — it was the police. Hajek

told Alice to answer the door. As they walked toward it, Cary called to Alice in

Chinese and they ran into the garage. Cary opened the garage door, and they ran

to the waiting police. Cary yelled that people were still inside. She was

frightened and agitated. Hajek was apprehended in the backyard as he attempted

to flee. He was carrying what appeared to be a black revolver in his hand, but he

threw it down when he was ordered to stop and shouted, “It’s a pellet gun.” Vo

tried to run out of the house, but ran back in when a police officer pointed his

shotgun at him and told him to stop. Vo stumbled and fell, and the police

apprehended him. Vo was unarmed.

Police found Tony bound and gagged in the master bedroom. When the

gag was removed, he said he was concerned about his mother-in-law. Su Hung

was found on the floor of her bedroom, her body covered by a comforter. Her

hands were tied behind her back, her mouth was gagged, and her throat had been

slashed. The area around her was covered with blood, and she was dead.

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f. Physical and medical evidence

In a neighborhood canvass, the police found a stolen minivan parked

around the corner from the Wang residence. It was later determined to have been

the vehicle defendants used. The car’s ignition switch had been removed, and

there was a screwdriver in the center console. Items found in the minivan

included packaging for a pair of leather bike gloves, a plastic grip for a pellet gun

that matched the gun Hajek threw to the ground, and two knives.

In the laundry room of the Wang residence, where Vo was arrested, police

found a brown paper bag containing five bottles of cooking oil and $278 in cash.

At the top of the stairs, police found a black bag containing items taken from

various rooms of the house.

Blood found on a glove used by Hajek was consistent with Su Hung’s

blood. A bloodstain found on Hajek’s jacket was too small for additional testing

to determine whether it was human. The serologist testified the blood on the

jacket could have been transferred from the blood on Hajek’s gloves. No

bloodstains were found on Vo’s clothing. Another pair of gloves, however, was

found on the kitchen table. A knife in the kitchen sink tested positive for blood,

but it could not be determined whether the blood was human or animal, fresh or

old.

Dr. Angelo Ozoa, the chief medical examiner for Santa Clara County,

performed the autopsy on Su Hung. At the time of her death, Su Hung was five

feet one inch tall and weighed 87 pounds. Her death was caused by strangulation

and an incised wound to her neck. She was first strangled and then, while she was

still alive, her throat had been slashed. Ozoa could not provide a time of death.

He saw other injuries on the body in addition to the lethal injuries. There was a

recent bruise on the right side of Su Hung’s chin caused by blunt force, possibly

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from a fist. There was a nonlethal stab wound to her left shoulder, one inch long

and one inch deep, which was inflicted and bled while she was still alive. The left

side of Su Hung’s chest had five “very superficial” cuts, which Ozoa indicated

could have been inflicted while she was alive, even if these cuts produced no

bleeding. He found no defensive wounds or anything that indicated a struggle.

Su Hung had been strangled with a cord and gagged with a towel. The cord

had been pulled so tight it left a furrow around her neck, and the towel was

saturated with blood. Dr. Ozoa found petechial hemorrhages — burst blood

vessels — all over Su Hung’s face, on her eyelids, and on the lining around her

eyeballs. The presence of petechiae indicated that she had been strangled before

her throat was cut and that sufficient pressure had been applied to her neck to cut

off the flow of blood from the head to the heart. Ozoa also found that the victim’s

thyroid cartilage — her Adams’ apple — had been fractured while she was being

strangled. Ozoa testified the amount of petechiae indicated she had been strangled

slowly.

The incised wound on Su Hung’s neck was three and a half inches in length

and three-quarters of an inch deep. She had been cut through the trachea and the

jugular vein on the right side of her neck was also partly severed. The amount of

bleeding from the cut indicated she was still alive when it was inflicted. Dr. Ozoa

could not say how long it had taken for Su Hung to die. Nor could he say whether

she experienced extreme pain, because it was possible the strangulation had

rendered her unconscious.

2. Defendant Hajek’s Evidence

Hajek conceded his guilt of the kidnapping, false imprisonment, robbery,

burglary and dissuading a witness counts, but claimed that because he was

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mentally ill before and during the commission of the crime, he did not have the

specific intent necessary for the murder and attempted murder counts.

Hajek was born in Florida in September 1972 and was abandoned by his

biological mother at birth. He was placed in a series of foster homes before Linda

and Bob Hajek adopted him when he was two years old. Hajek suffered from

physical and psychological problems at the time he was adopted. He engaged in

repetitious behavior and was very withdrawn. He sometimes went into screaming

panics when he heard loud noises such as sirens, and he sometimes banged his

head against the wall. He was afraid of being dirty and once, when he dropped

some food, he turned white and covered himself as though he feared Mrs. Hajek

was going to beat him. The Hajeks made every attempt to make Hajek feel safe

and secure. Mr. Hajek, a firefighter, resigned from the military rather than accept

a transfer to Germany that would have separated him from his wife and son. By

the time the Hajeks moved to California, when Hajek was about five, he was more

like a normal child, though he still had problems.

When he was 15 or 16, Hajek’s behavior began to deteriorate. Mrs. Hajek

described him as “explosive, angry,” and “easily frustrated.” Early in high school,

he had belonged to the ROTC, but he dropped out of it and began to surround

himself with mostly Asian friends. Hajek became so involved in Vietnamese

culture that he claimed to be Asian and would speak in what sounded like an

Asian language. Hajek also became obsessed with Japanese animation.

Around this time, Hajek was arrested for indecent exposure after he

“streaked” through his neighborhood. Hajek told his probation officer, Sally

Lowell, that he had run through his apartment complex naked to get even with a

neighbor who was always picking on him. Hajek’s parents told Lowell they

believed there was distortion in Hajek’s thought process. The police report of the

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incident contained a notation that Hajek’s behavior when he was arrested — he

was volatile, profane and angry — suggested psychiatric problems. The court

ordered counseling. A psychological evaluation confirmed that Hajek had

emotional problems. The doctor who evaluated Hajek described these problems as

a lack of trust in others, pervasive loneliness, extreme sensitivity, and an inability

to express hostility in a direct manner, which led Hajek to isolate himself.

Lowell had Hajek placed in a school and counseling program. Hajek did

not complete the program because he was arrested for driving a stolen car and

being in possession of a bank card that was not his own. A third juvenile

delinquency petition was sustained after Hajek got into a fight with a coworker

and broke that boy’s nose. These arrests all occurred between March and June

1989. Lowell placed Hajek in a second program in the summer of 1989, but he

was subsequently expelled.

Dr. James Griffin, a clinical psychologist, treated Hajek from June to

December 1989. Based on the results of psychological testing, his review of

background information, and his counseling sessions with Hajek, Griffin found

Hajek to be “significantly disturbed.” Griffin testified Hajek had an impaired

sense of reality and demonstrated an inability to control his emotions, impulsivity,

difficulty relating to other people, and a low tolerance for frustration. Ultimately,

Griffin decided Hajek needed inpatient care. Griffin recommended that Hajek be

hospitalized because he was depressed, decompensating, and moving toward

schizophrenia.

Hajek was admitted to Monte Villa Hospital at the end of 1989 and

remained there until early 1990. John Hennessey, a social worker, and Dr. Dean

Freelander, a psychiatrist, both worked with Hajek and testified about his

hospitalization. Both men testified that Hajek’s behavior improved once he was

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put on the drug lithium, which is used to treat bipolar disorder. While Freelander

was reluctant to diagnose Hajek with bipolar disorder because he did not meet all

the diagnostic criteria, Freelander had “no doubt” that Hajek was mentally ill and

possibly in the early stages of bipolar disorder.

Dr. Rhan Minagawa, a clinical psychologist, testified as the defense mental

health expert. Minagawa interviewed Hajek, administered psychological tests, and

reviewed material regarding Hajek’s medical, psychological, and social history as

well as the circumstances of the crime. Minagawa concluded that when the

offenses occurred, Hajek was mentally ill and suffering from a cyclothymic

disorder and a borderline personality disorder with antisocial traits. Minagawa

explained that a cyclothymic disorder is a mood disorder similar to, but not as

serious as, bipolar disorder.

According to Dr. Minagawa, people with borderline personality disorders

have several characteristics, including problems with identity, problems

developing relationships, self-destructive behaviors, and suicidal ideation.

Minagawa explained the identity problems manifested in the inability of such

individuals to “know who they are,” which would cause them to “fluctuate

between thinking they are going to be one way or another way.” In Hajek’s case,

one indication of this problem might have been his over-identification with Asian

culture to the point where he claimed to be Asian. By suicidal ideation, Minagawa

was referring to individuals with this condition “talking about suicide.” Such

people may also have transient periods of paranoid delusions. Under stress they

undergo dissociation, where they “separate themselves out of their bodies.”

Minagawa testified that Hajek’s personality disorder was primarily the result of

environmental factors. He traced Hajek’s borderline personality disorder to the

time of his birth, when his mother abandoned him, and to the disruptions in his

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attachments while he was moved around in foster care during the first two and a

half years of his life.

In Dr. Minagawa’s opinion, Hajek was in a hypomanic state between

January 17 and January 21, 1991, encompassing the time just before, during, and

just after Su Hung’s murder. Therefore, according to Minagawa, Hajek’s

judgment was impaired to the point that he was acting irrationally. Minagawa’s

testimony was the basis of Hajek’s “diminished actuality” defense, in which his

attorney argued his mental illness prevented him from forming the mental states

required for murder and attempted murder.

3. Defendant Vo’s Evidence

Vo conceded his guilt of the false imprisonment counts but argued that he

had gone with Hajek only to frighten Ellen, and that Hajek alone had killed Su

Hung while he was in the midst of a manic episode. To that end, Vo presented

witnesses who testified regarding Hajek’s prior acts of seemingly impulsive

violent behavior. James O’Brien testified that when he and Hajek worked at a

Round Table Pizza, Hajek had punched the then 15-year-old O’Brien in the face,

breaking his nose, apparently because he was upset that O’Brien was getting off

work early. Douglas Vander Esch, a Santa Clara correctional officer, testified

about an episode involving Hajek at the county jail. Hajek told Vander Esch he

wanted to talk to a sergeant without disclosing why. Vander Esch told him he

would have to fill out a grievance form, which he would then give to the sergeant

for Hajek. Hajek responded by destroying various items in the day room including

a television, glass on a bulletin board, glass around a shower, a sink, a coffee pot,

and a telephone.

The bulk of Vo’s defense, however, consisted of his own testimony. Vo

testified that Hajek came to his house on the morning of January 18, 1991, and

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roused him from bed. After driving to a couple of other stops, they ended up at

the Wang residence. Vo did not know Ellen. Hajek had a problem with Ellen and

wanted to talk to her. Vo testified he was “just a tag along” in case the

confrontation became hostile. Hajek said nothing to Vo about killing Ellen or any

of her family members.

Vo affirmed they entered the house on the pretext of writing a note to Ellen,

because they did not believe Alice when she said Ellen was not home. Vo

admitted taking Su Hung upstairs and tying her up because, he said, she “seemed

to be angry and hostile” and he did not want “thing[s] [to] get out of hand.”

Vo also admitted he “pulled a knife” on Cary when she came home. He

denied pressing it to her neck, testifying that he “flashed it” to “scare her” and that

he told her, “Don’t scream and no one will get hurt.” Vo claimed he made a show

of putting the knife back into the knife holder so Cary would not be frightened of

him. He also testified it was Cary’s idea to go look for Ellen at Ellen’s high

school.

Under cross-examination by the prosecutor, Vo confirmed he and Hajek

had arrived at the Wang residence in a stolen vehicle and were wearing gloves.

He admitted Hajek had a gun and pointed it at Su Hung. Vo also confirmed that

he was at Hajek’s house after Hajek’s altercation with Ellen and that he was told

about the incident. Vo acknowledged he decided to tie up Tony because he

thought Tony “could be a problem.” According to Vo, Hajek took Tony upstairs,

and when Hajek came back downstairs, he told Vo that Su Hung was dead. Vo

testified he went upstairs to see for himself and was shocked to discover Su

Hung’s body. Vo then went to the room where Tony was being held. Tony was

“talking and talking,” so Vo gagged him. A couple of minutes later, Vo heard the

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police at the door downstairs. Vo did not surrender because he was panicked and

confused. He gave the police a false name because he was afraid of the media.

Under cross-examination by Hajek’s attorney, Vo admitted he wrote

Nguyen a letter in December 1992, in which he said, among other things, “I can’t

explain my feeling towards you. It’s both hate and love. I hate you for loving you

so much . . . . When I say I love someone, I always will.” Nonetheless, Vo denied

his feelings for Nguyen motivated him to join Hajek in going to the Wang

residence.

B. Penalty Phase

1. Prosecution Evidence

The prosecution’s penalty phase case relied almost entirely on the

circumstances of the crime. The prosecution called a single victim impact witness,

Ellen. Ellen testified her grandmother Su Hung had taken care of her in Taiwan

until she was five. Even after Ellen and her family moved to the United States,

she and her grandmother remained close. They spoke weekly on the telephone,

and Su Hung came to visit every year, staying three to six months. Ellen missed

her grandmother and blamed herself for her death. She did not return to school for

several months after the murder because her mother, Cary, was frightened and did

not want her children or her husband out of her sight.

After Su Hung’s death, Cary and Tony sold their residence at a loss because

it had too many bad memories. Cary sold her business, and she and Tony

separated. Cary moved to Taiwan, while Tony remained in the United States.

Cary still cried when she thought about her mother or saw her picture.

2. Defendant Hajek’s Evidence

June Fountain, the social worker who oversaw Hajek’s eventual placement

with his adoptive parents, testified about that process. Hajek was abandoned by

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his birth mother in the hospital and placed in foster care with a couple who wanted

to adopt him. Because Florida prohibited the adoption of children by their foster

parents, Hajek was abruptly removed from the first foster home and placed in a

second foster home. Nine months later, Hajek was removed from that second

home and placed for adoption with another couple.

This couple already had a six-year-old biological daughter, and they wanted

to adopt a son between the ages of two and three. They failed to disclose to

Fountain that the wife was pregnant when Hajek was placed in their home.

Fountain was concerned that if the wife gave birth to a boy, the husband might

reject Hajek. Nonetheless, she did not want to remove Hajek from yet another

home. Based on her observations of the couple’s parenting of their daughter,

Fountain made some suggestions to improve their skills, which caused friction

between the couple and Fountain. After several weeks of silence, Fountain called

them. She learned that the husband had lost his job, the wife had given birth to a

boy, and Hajek and the couple’s daughter were fighting. The husband asked

Fountain to come to their house after the holidays. Fountain was certain they were

going to ask that Hajek be removed from their house.

Fountain visited the couple and found them under enormous stress. The

wife was worried that she might hurt Hajek. Hajek was removed from the

couple’s home and immediately placed in the home of the Hajeks. Fountain

testified that under new practices no adoption agency would ever move a child

directly from a failed adoption setting into a new adoptive home out of fear that

the child would come to blame the second set of parents for removing him or her

from the first set of parents. Fountain believed Hajek was emotionally abused

during his stay with the couple.

18

Dr. Minagawa, who had testified at the guilt phase, testified again at the

penalty phase. Minagawa testified that Hajek’s removal from the foster parents

who had wanted to adopt him was the most traumatizing event of his first two

years of life and that the later failed adoptive placement impaired Hajek’s ability

to develop the trust in other human beings necessary for a sense of stability and

security in the world. Minagawa testified that the effects of this trauma did not go

away but went “underground,” only to emerge during adolescence and in early

adulthood. He testified that, at 18, Hajek was still an adolescent in terms of his

judgment, maturation, and impulsivity. In the guilt phase, Minagawa described

Hajek’s mood disorder as cyclothymia, which is similar to, but not the same as

bipolar disorder. In the penalty phase, Minagawa amended the diagnosis to

bipolar disorder, which is genetically based and treatable with medication and

counseling. Minagawa opined that on the date of the murder, Hajek was under the

influence of a bipolar or cyclothymic disorder that impaired his judgment.

Additionally, Minagawa testified Hajek was suffering from the personality

disorder he had described in his guilt phase testimony.

3. Defendant Vo’s Evidence

Vo called 29 witnesses. They fell into four categories: family and friends;

teachers; members of the National Guard; and correctional officers. His witnesses

also included an expert on Vietnamese immigration into the United States and a

correctional expert.

Vo’s father, Tan Van Viet, testified he had eight children, four born in

Vietnam and four in the United States. Tan Van Viet worked for the United States

government in Vietnam, and the family was well-off. When Saigon fell to the

Communist regime in the north in 1975, the family had only 30 minutes to leave.

First they went to Guam, then to an Army base in Arkansas, then to Tennessee,

19

then to Kentucky, and ultimately to California, where the family settled in San

Jose. After failed attempts to obtain a college degree and to become a farmer, Tan

Van Viet found employment as a school crossing guard. Tan Van Viet claimed

his family was happy, and he had never needed to discipline his children.

Vo’s mother, Keen Vo, testified briefly that Vo was a good son and that she

did not want him to receive the death penalty.

Vo’s brothers, Dexster and Sparkman Vo, gave accounts of their family life

that differed significantly from their father’s. Dexster described the family’s

departure from Vietnam as “chaotic.” In Guam and then in Arkansas, they lived in

a military barracks. Their living conditions after Arkansas were not much better,

and their San Jose residence was “a shack.” Dexster described his father as very

strict and said there was a culture clash between his father’s traditional

Vietnamese ways and his children’s American ways. His father used a belt to

discipline him. His parents fought, and their fights escalated from verbal to

physical violence. These fights frightened him and his siblings, and Vo would

shut down and hide his feelings. Dexster joined the military in part to get away

from his family.

Dexster testified that during one fight, his mother pulled a knife, and his

father and the children ran into a room and locked the door. His father told

Dexster to climb out the window and go for help, as his mother pounded on the

door. The police arrived. His mother tried to commit suicide and was

hospitalized. Sparkman Vo, Vo’s youngest brother, confirmed Dexster’s

testimony about their father’s disciplinary methods and the violent arguments

between their parents.

20

Kieu Ngan Vo testified that Vo was a good brother who, even in custody,

remained part of the family, and that the family would be devastated if Vo

received the death penalty.

A number of Vo’s friends testified to his good character and his difficult

home life. Billy McDonald, who met Vo when they were both freshmen in high

school, testified that Vo helped McDonald through a suicidal period. Four other

school friends also testified Vo was a loyal and dependable friend, as well as

personable and honest. They were also aware Vo had problems at home and

would stay late at school to avoid having to go home.

Four of Vo’s high school teachers testified on his behalf. Patricia

Accoritini, his photography teacher, testified Vo was an eager and conscientious

student. Vo would spend his lunch period in Accoritini’s classroom and would

also “hang out” there after school. Vo told her that his father abused his mother

and that Vo once had to leave home for a while after attempting to protect his

mother. Vo bought candy bars from Accoritini because he wasn’t being fed at

home. Vo was calm and nonviolent and had friends among the different racial and

ethnic groups at the high school. Accoritini would have felt comfortable having

Vo in her own home and considered having him live with her family because of

his problems at home. Paul Enders and Rudolf Franke, who supervised Vo when

he was a staff photographer on the yearbook, confirmed that he worked hard, was

helpful beyond what was required of him, and got along with others. Franke

formed the impression that Vo’s father was strict.

Francis Nieman was a German teacher who taught Vo for three years. Vo

was an average student, but he worked hard. He was a very active participant in

the German club, and he mixed well with everyone and was liked and respected by

21

the other students. Nieman never saw any type of violence from Vo. He was

under the impression that Vo’s parents were strict and traditional.

Nora Mazotti was Vo’s high school counselor. Vo told her on more than

one occasion that his father was abusive. At one point she wrote up a report of

suspected child abuse when Vo told her his father punched him and threatened to

throw a chair at him.

Members of the National Guard testified on Vo’s behalf about his record in

the National Guard. Two of his commanding officers, David Whittum and Scott

Sutherland, testified he had been a satisfactory Guard member. A fellow member

of the Guard, Dwayne Talbot, testified Vo was a good soldier.

Nine correctional officers attested that Vo was a model inmate. Frances

Paragon-Arias, an art instructor at the Santa Clara County jail, testified Vo was an

enthusiastic and motivated student who was helpful, positive, and respectful.

Gregory Dalcher, a volunteer tutor at the jail, testified Vo was a dedicated student

and a positive and stable person.

Professor Hien Duc Do testified as an expert on the Vietnamese immigrant

experience in the United States. Do explained that Vo’s family belonged to the

first wave of Vietnamese immigrants to the United States who left Vietnam in

1975 after the Communist victory. People like Vo’s father who had worked for

the United States government were forced to leave because they feared

persecution. They had been educated and were middle or upper middle class in

Vietnam, but in the United States they experienced a loss in status. The men were

forced to take menial jobs, and their wives, who had not worked in Vietnam, went

to work to help support their families. The women became semi-independent, and

this change created marital tensions that could lead to domestic violence because

the men expected women to keep to their traditional roles. The children of these

22

families were caught in a cultural vise between American individualist and

Vietnamese traditional cultures. Moreover, because the children acculturated

while their parents did not, there was a role reversal in which the children were in

a role of authority. Do opined that the stresses, tensions, and incidents of violence

within Vo’s family as described in the testimony of Vo and his family members

were consistent with the experiences of the first wave of immigrants.

James Park, a clinical psychologist, testified as an expert in prisoners’

classifications and their adjustment to prison life. Based on his review of Vo’s

record, Park opined that Vo would be a productive and nonviolent prisoner.

II. DISCUSSION

A. Pretrial Issues

1. Severance Motions

Before the start of trial, Vo filed an omnibus motion in limine, which

included a motion to sever. Vo argued severance was required on two grounds.

First, he argued Hajek had made statements to various individuals incriminating

Vo that would be inadmissible at their joint trial under the Aranda/Bruton rule.

(People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S.

123 [a nontestifying codefendant’s extrajudicial statement that incriminates the

other defendant is inadmissible as a violation of the latter’s rights to confrontation

and cross-examination].)4 Second, Vo claimed severance was required because he

and Hajek were advancing antagonistic defenses. Hajek’s counsel orally joined in

the motion to sever. The prosecution opposed both motions, and the trial court

4 To the extent Aranda “require[d] the exclusion of relevant evidence that

need not be excluded under federal constitutional law, it was abrogated in 1982 by

the ‘truth-in-evidence’ provision of Proposition 8 [citation.]. [Citations.]”

(People v. Fletcher (1996) 13 Cal.4th 451, 465, fn. omitted.)

23

denied them. The court also denied Vo’s oral motion for severance during the

penalty phase.

Defendants contend the trial court abused its discretion when it denied their

respective severance motions. Alternatively, they argue that, even if pretrial

denial of severance was not an abuse of discretion, retrospectively it amounted to a

due process violation. For the reasons below, we find no merit to any of these

contentions.

“ ‘Our Legislature has expressed a preference for joint trials. [Citation.]

Section 1098 provides in pertinent part: “When two or more defendants are

jointly charged with any public offense, whether felony or misdemeanor, they

must be tried jointly, unless the court order[s] separate trials.” The court may, in

its discretion, order separate trials if, among other reasons, there is an

incriminating confession by one defendant that implicates a codefendant, or if the

defendants will present conflicting defenses. . . . [¶] We review a trial court’s

denial of a severance motion for abuse of discretion based on the facts as they

appeared when the court ruled on the motion. [Citation.] If we conclude the trial

court abused its discretion, reversal is required only if it is reasonably probable

that the defendant would have obtained a more favorable result at a separate trial.

[Citations.] If the court’s joinder ruling was proper when it was made, however,

we may reverse a judgment only on a showing that joinder “ ‘resulted in “gross

unfairness” amounting to a denial of due process.’ ” [Citation.]’ [Citation.]

Severance motions in capital cases generally receive heightened scrutiny for

potential prejudice. [Citation.]” (People v. Homick (2012) 55 Cal.4th 816, 848.)

Defendants were charged with having committed common crimes that

involved the same individuals and same series of events. The joinder of their

24

cases was proper. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 150 (Letner

and Tobin).)

Although Vo advanced two grounds for severance in his pretrial severance

motion, on appeal he argues only that severance was required because the

“irreconcilable defenses of the co-defendants here resulted in a trial lacking due

process of law.”5

“Severance is not required simply because one defendant in a joint trial

points the finger of blame at another. ‘ “ ‘Rather, to obtain severance on the

ground of conflicting defenses, it must be demonstrated that the conflict is so

prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably

infer that this conflict alone demonstrates that both are guilty.’ ” [Citation.]

When, however, there exists sufficient independent evidence against the moving

defendant, it is not the conflict alone that demonstrates his or her guilt, and

antagonistic defenses do not compel severance.’ [Citation.]” (People v. Homick,

supra, 55 Cal.4th at p. 850; see also Letner and Tobin, supra, 50 Cal.4th at p.

150.)

Here there was sufficient independent evidence of both defendants’ guilt

apart from any potential conflict in the defenses. The evidence showed that both

defendants had a motive to commit the charged crimes. Hajek told Tevya

Moriarty he was going to kill Ellen and her family in retaliation for his altercation

5 Vo had additionally argued that certain statements by Hajek violated the

Aranda/Bruton rule. The trial court’s rejection of this argument was sound. The

statements by Hajek to Moriarty about his plan to kill Ellen’s family and Hajek’s

postarrest threats to her did not incriminate Vo. The Aranda/Bruton rule applies to

a “ ‘nontestifying codefendant’s extrajudicial . . . statement that inculpates the

other defendant.’ ” (People v. Jennings (2010) 50 Cal.4th 616, 652.) The trial

court later admitted those statements against both defendants. (See post, pt.

II.B.3.a.)

25

with Ellen. Vo learned about the altercation on the same day it occurred, when he

was present with Hajek and Lori Nguyen that night and Hajek and Ellen were

exchanging hostile phone calls. Vo had unrequited romantic feelings toward

Nguyen and was Hajek’s friend. Vo later told Cary he was looking for Ellen

because she had had an argument with his relative at school and said he wanted to

teach her a lesson. The evidence showed further that defendants together arrived

at the Wang residence, prepared to commit a violent act. They drove a stolen van

and parked it around the corner. Wearing gloves and armed with a pellet gun, they

gained entrance into the residence on a pretext. Once inside, Hajek pointed the

gun at Alice to force her compliance. At another point, Vo held a knife to Cary’s

throat and threatened to kill her and her family if she called out. Working in

concert, Hajek and Vo held members of the Wang family hostage for several

hours, during which they repeatedly threatened the victims’ lives and murdered Su

Hung.

As described by the Wangs, both defendants took an active part in these

events, which included binding and blindfolding the victim and isolating her in an

upstairs room that each visited repeatedly. When the police arrived at the scene,

Hajek attempted to flee, and Vo, upon being arrested, lied about his identity.

Because sufficient independent evidence existed against both defendants,

the trial court’s rejection of the severance motions was not an abuse of discretion.

In any case, their defenses were not truly conflicting. Vo argues that

Hajek’s defense was that Vo was the actual perpetrator, creating an irreconcilable

conflict because the jury could not have accepted Hajek’s defense without

convicting Vo. This mischaracterizes Hajek’s defense. Hajek’s defense was that

his mental illness reduced his culpability, not that he was not culpable. While

Hajek’s attorney may have suggested in closing argument that Hajek was not the

26

actual killer, she explained that “the heart of [Hajek’s] defense” was that he was in

a manic state at the time of the offenses due to his mental illness, and therefore did

not premeditate or deliberate. Indeed, Vo’s trial counsel sought to capitalize on

Hajek’s mental illness defense by presenting evidence of episodes where Hajek

lost control of himself and acted impulsively or violently. Vo’s defense was that

Hajek killed Su Hung in a manic state without Vo’s knowledge or assistance and

that Vo had accompanied Hajek to the Wang residence merely to confront Ellen,

not to commit murder.

A jury need not have believed Vo was guilty to accept Hajek’s mental

illness defense. Vo’s defense, if believed, did not require the jury to convict

Hajek. “[T]his was not a case in which only one defendant could be guilty. The

prosecution did not charge both and leave it to defendants to convince the jury that

the other was that person.” (People v. Cummings (1993) 4 Cal.4th 1233, 1287.)

Again, no abuse of discretion has been shown.

Vo next contends that the denial of his pretrial severance motion — viewed

retrospectively — resulted in gross unfairness sufficient to constitute a denial of

due process. (See People v. Homick, supra, 55 Cal.4th at p. 852; People v. Hoyos

(2007) 41 Cal.4th 872, 896.) He argues that much of the evidence adduced at his

joint trial with Hajek was prejudicial to Vo and would have been excluded as

irrelevant had he been tried alone.6 But the evidence Vo cites — Hajek’s

altercation with Ellen and his telephone conversation with Moriarty, defendants’

jailhouse conversation, and defendants’ close friendship with each other and

6 Threaded through Vo’s argument is his claim that the prosecution should

not have been allowed to argue for his culpability on the basis of what he calls its

“uncharged and wildly expansive conspiracy theory.” This claim, which we reject

post, in part II.B.2., has no bearing on whether the cases should have been severed.

27

Nguyen — would likely have been admitted at a separate trial for Vo to provide

context and motive for his actions at the Wang residence.

Vo further contends that Hajek’s mental illness evidence prejudiced Vo

because the jury must have anticipated that Vo, too, would have presented such a

defense. The claim is speculative, unsupported by the record or any relevant

authority. Equally unpersuasive is Vo’s claim that the prosecutor at one point

used Hajek’s mental illness defense to suggest Vo was the more culpable actor

because he was not mentally ill. As the record reflects, Hajek’s attorney had

argued that the plan to kill Ellen’s family in retaliation for a minor altercation was

so bizarre it could not have been planned but was the product of Hajek’s mental

illness. In response, the prosecutor argued that enlisting Vo as a cohort was

evidence that Hajek was not mentally ill when he planned and carried out the

crime. Thus, the prosecutor’s argument merely refuted Hajek’s mental illness

defense and did not suggest Vo was more culpable because he was not mentally

ill.

Vo next contends that evidence of Hajek’s prior criminal conduct and “bad

character” — e.g., his interest in Satanism, his delusions about being Asian, and

his sadism — tainted Vo by association.

Severance may be justified “where there may be prejudicial association

with codefendants” (People v. Boyde (1988) 46 Cal.3d 212, 232), but only if, at

the guilt phase, “the evidence regarding one defendant might make it likely the

jury would convict that defendant of the charges and, further, more likely find a

codefendant guilty based upon the relationship between the two rather than upon

the evidence separately implicating the codefendant.” (Letner and Tobin, supra,

50 Cal.4th at p. 152.) Those circumstances are not present here. As recounted

above, ample independent evidence implicated Vo in the crimes of which he was

28

convicted. In these circumstances, there is no likelihood the jury convicted Vo

solely because of his association with Hajek. Moreover, the evidence regarding

Hajek’s prior criminal conduct and various obsessions was clearly admitted

against Hajek alone, and we have no reason to doubt that the jury followed the

instructions to consider separately each defendant’s guilt. Finally, evidence that

tended to depict Hajek as an out-of-control deviant aided Vo’s defense that Hajek

killed the victim in the midst of a manic episode. Indeed, Vo himself introduced

some of this evidence.

In sum, denial of Vo’s pretrial severance motion did not amount to a due

process violation.

Vo also challenges the denial of his penalty phase severance motion. On

direct examination during the penalty phase, Hajek’s expert, Dr. Minagawa,

testified that at the time of Su Hung’s murder, Hajek was mentally ill and in the

midst of a manic episode. On cross-examination, the prosecutor repeatedly sought

to impeach Minagawa by suggesting he had avoided asking Hajek questions that

would have undermined this diagnosis. In this vein, the prosecutor asked

Minagawa whether he had pressed Hajek about the circumstances of the murder.

To four of these questions, Minagawa replied that Hajek had denied killing the

victim. Vo’s counsel objected on hearsay grounds. The trial court responded with

a limiting instruction: “The testimony is strictly limited to Mr. Hajek and it is not

being received as to Mr. Vo. . . . So when you receive the testimony as to Mr.

Hajek, it is received only as to Mr. Hajek. And when you receive testimony as to

Mr. Vo, it is received only as to Mr. Vo. [¶] Objection is overruled.”

In a hearing outside the presence of the jury, Vo’s counsel moved for a

mistrial or, alternatively, severance. He argued that by relating Hajek’s denial that

he killed the victim, Dr. Minagawa’s testimony violated the Aranda/Bruton rule.

29

Counsel asserted the trial court’s admonition was inadequate to cure the violation.

On appeal, Vo challenges the denial of these motions.

The Aranda/Bruton rule addresses a specific issue that arises at joint trials

when the prosecution seeks to admit the out-of-court statement of a nontestifying

defendant that incriminates a codefendant. “ ‘Aranda and Bruton stand for the

proposition that a “nontestifying codefendant’s extrajudicial self-incriminating

statement that inculpates the other defendant is generally unreliable and hence

inadmissible as violative of that defendant’s right of confrontation and cross-

examination, even if a limiting instruction is given.” [Citation].’ [Citation.] The

United States Supreme Court ‘limited the scope of the Bruton rule in Richardson

v. Marsh (1987) 481 U.S. 200 . . . . The court explained that Bruton recognized a

narrow exception to the general rule that juries are presumed to follow limiting

instructions, and this narrow exception should not apply to confessions that are not

incriminating on their face, but become so only when linked with other evidence

introduced at trial. (Richardson, supra, at pp. 206-207.) That is because, “[w]here

the necessity of such linkage is involved, it is a less valid generalization that the

jury will not likely obey the instruction to disregard the evidence.” (Id. at p.

208.)’ ” (People v. Homick, supra, 55 Cal.4th at p. 874, fn. omitted; see People v.

Fletcher, supra, 13 Cal.4th at pp. 463-464.)

Hajek’s statement to Dr. Minagawa that he did not kill Su Hung did not

facially incriminate Vo. Its incriminatory effect depended entirely on its linkage

to other evidence. Moreover, the point of the prosecutor’s cross-examination was

to suggest that Hajek’s denial of culpability was a lie that Minagawa accepted at

face value because it was consistent with his diagnosis. Thus, the issue was not

the identity of Su Hung’s killer, but Minagawa’s credibility as an expert. Under

these circumstances, the trial court’s limiting instruction properly guided the jury’s

30

consideration of the testimony. (Richardson v. Marsh, supra, 481 U.S. at p. 206

[“Ordinarily, a witness whose testimony is introduced at a joint trial is not

considered to be a witness ‘against’ a defendant if the jury is instructed to consider

that testimony only against a codefendant.”].)

We turn to Hajek’s severance claim. Hajek’s counsel orally joined Vo’s

pretrial motion for severance on the ground of antagonistic defenses. As noted,

sufficient independent evidence existed of both defendants’ guilt so as to render

the denial of their severance motion an appropriate exercise of discretion at the

time the court ruled. Moreover, although Hajek complains that Vo was permitted

to call two witnesses who testified to two episodes of Hajek’s violent behavior

involving an attack on a coworker and the destruction of jail property, Hajek

concedes that he himself referred to these incidents as part of his mental illness

defense. Under these circumstances, Hajek fails to demonstrate that the denial of

his severance motion resulted in gross unfairness amounting to a due process

violation.

Hajek also contends the trial court erroneously denied his penalty phase

severance motion. The motion to which he refers was for a mistrial, not

severance. The claim is forfeited. (People v. Tafoya (2007) 42 Cal.4th 147, 163;

People v. Ervin (2000) 22 Cal.4th 48, 68.)7 Even if the claim were not forfeited, it

is meritless. Hajek argues he was prejudiced by Vo’s extensive “good character”

defense, because Hajek’s inability to mount a comparable defense cast him in a

7 For the same reason — because he moved for a mistrial, not severance —

Hajek also forfeited his claim that severance was required after the prosecutor

asked one of Vo’s witnesses if Hajek had been a “gangster” in high school. In any

event, the trial court sustained the objection of Hajek’s counsel and granted her

motion to strike. Hajek points to no further prosecutorial questioning on this

subject.

31

bad light before the jury. As already noted, the jury was specifically admonished

“not to weigh one defendant against the other or choose between them,” and to

make “an individualized determination based on the character and circumstances

of each individual and the circumstances of the case.” We presume the jury

understood and followed these instructions. (People v. Avila (2006) 38 Cal.4th

491, 575.)

2. Keenan Counsel

Vo contends his right to effective assistance of counsel was violated by the

initial denials of his request for a second or Keenan counsel (Keenan v. Superior

Court (1982) 31 Cal.3d 424) and by a later denial of his request to continue the

trial when Keenan counsel withdrew for health reasons. We reject his claims.8

a. Background

In September and October 1991, Vo’s trial counsel, James Blackman, filed

declarations seeking appointment of a second attorney to defend Vo. Blackman

asserted the second counsel was required for research and related work on various

motions, including motions for discovery, severance, a section 995 motion to

dismiss, a motion to preclude the death penalty based on the charging policies of

the Santa Clara County District Attorney, and motions related to the admissibility

of particular pieces of evidence. The requests were summarily denied.

Blackman sought a hearing, which was conducted on November 20, 1991,

by Judge Hastings. To justify his Keenan counsel request, Blackman repeatedly

cited the complexity of the case and of the various motions and investigations he

8 Vo links these alleged errors with claims pertaining to funding issues

during the trial and to his counsel’s attempt to withdraw after the court excluded

testimony from one of his experts, Dr. Berg, as a discovery sanction. The issues

are distinct and are discussed separately. (See post, pts. II.D.1., II.C.3.)

32

planned to undertake in Vo’s defense. He additionally cited the fact that a number

of his witnesses spoke only Vietnamese.

The trial judge noted his own experience as a criminal defense lawyer,

which included 13 years in practice and certification as a criminal law specialist,

and his judicial experience presiding over hundreds of jury trials, including five

death penalty cases. The judge pointed out that in Keenan “there was a very

critical time issue involved for the lawyer to get prepared after his appointment,”

whereas in Vo’s case “the matter isn’t even set for trial.” The judge characterized

Blackman’s statement that the case was complicated as “conclusionary” and again

denied the motion.

In March 1994, Blackman made a third request for Keenan counsel before a

different trial judge, and this time the request was granted. Attorney Mary Ann

Bachers was appointed second counsel and began work on the case in May 1994.

Neither the declarations submitted in connection with the third Keenan request nor

the transcript of any hearing is in the record.

Trial was set for January 17, 1995. On December 16, 1994, Blackman

presented the court with a doctor’s note stating Bachers was completely disabled

and unable to continue to represent Vo. He asked for a continuance of the trial

date. Both the prosecutor and Hajek’s counsel objected. On January 6, 1995,

Blackman reported he had not yet found a replacement for Bachers. On January

17, the court held a hearing on the continuance request. Blackman characterized

the case as “complicated,” and recounted his initial unsuccessful attempts to obtain

Keenan counsel as well as the time he spent litigating the section 995 motion and

subsequent appeal.9 Blackman acknowledged that, while the case was on appeal

9 Blackman had filed a section 995 motion that resulted in dismissal of all

special-circumstance allegations except torture murder. The prosecution’s appeal

was successful, and the Court of Appeal reinstated the special circumstances in an

33

following the granting of Vo’s section 995 motion, “[w]e just didn’t do anything

because the focus of the attention at that point was to see what happened in the

Court of Appeal.” Blackman said his request for Keenan counsel had been

granted following the Court of Appeal’s reinstatement of the special

circumstances. He insisted he could not go to trial because Bachers had been in

charge of penalty phase preparations and, as a result of her withdrawal from the

case, the penalty phase case was not ready. He told the court he had been

unsuccessful in his efforts to find a replacement for Bachers.

The trial court denied the continuance request. The court said it had read

the transcript of the November 21, 1991, Keenan hearing before Judge Hastings

and observed, “[a]ll the arguments you’re putting forth here were the same

arguments you put forth at that time . . . . I don’t think this case will ever be

prepared . . . . [A]ll the information you need for a competent guilt phase and

penalty phase investigation is at your fingertips.”

On February 10, 1995, Attorney Jeane Dekelver was appointed as

replacement Keenan counsel. Trial began on February 14, 1995. As stated in the

factual summary above, Vo called 29 penalty phase witnesses, including family

members, friends, and experts on the Vietnamese immigrant experience and on

prisoner classifications and prisoner adjustment.

b. Discussion

We begin with the initial denial of Vo’s request for Keenan counsel. In

capital cases, “courts have the statutory discretion to appoint a second defense

attorney at public expense. [Citations.] But unlike the constitutional right [to

unpublished opinion filed on October 29, 1993. Subsequently, however, the trial

court dismissed the robbery-murder and burglary-murder special-circumstance

allegations at the end of the prosecution’s guilt phase case.

34

counsel], the statutory right to appointed second counsel is qualified.” (People v.

Roldan (2005) 35 Cal.4th 646, 686, fn. omitted; § 987, subd. (d).) “In ruling on an

application for second counsel, the trial court must be guided by the need to

provide a capital defendant with a full and complete defense . . . . The initial

burden is on the defendant to present a specific factual showing of ‘genuine need’

for the appointment of second counsel. [Citation.] We review the decision

whether to grant a request to appoint second counsel under section 987 for abuse

of discretion. [Citation.]” (People v. Doolin (2009) 45 Cal.4th 390, 432.) “The

abuse of discretion standard is used in many other contexts and reflects the trial

court’s superior ability to consider and weigh the myriad factors that are relevant

to the decision at hand. A trial court will not be found to have abused its

discretion unless it ‘exercised its discretion in an arbitrary, capricious, or patently

absurd manner that results in a manifest miscarriage of justice.’ [Citation.]”

(People v. Roldan, supra, 35 Cal.4th at p. 688.)

We find no abuse of discretion in the denial of Vo’s initial requests for

Keenan counsel. To the extent Vo’s counsel sought to justify such an appointment

because the case was complex, the trial court correctly dismissed such justification

as conclusory and therefore insufficient. (See People v. Verdugo (2010) 50

Cal.4th 263, 278-279 [no abuse of discretion where request for appointment of

second counsel is denied, where the request asserts only that the case is

“ ‘complex’ ”].) Nor do we find the trial court abused its discretion merely

because Vo’s counsel referred to specific motions and investigations as grounds

for his request. Indeed, as the court noted, the matter had not yet even been set for

trial. Keenan’s genuine need standard requires the defendant to show specific and

compelling reasons for appointment of second counsel. (Keenan v. Superior

Court, supra, 31 Cal.3d at p. 429.) The trial court gave clear and detailed reasons

35

why it did not find the justifications offered by Vo’s counsel to be compelling.

We cannot say the court’s findings constituted an abuse of discretion.

Nor are we swayed by the fact that a second judge was later persuaded to

appoint Keenan counsel. Neither the declarations submitted in connection with

that request nor a transcript of the hearing, if any, are in the record. Accordingly,

we do not know whether new or different arguments were made or what other

factors may have informed the second judge’s exercise of discretion. The

subsequent appointment of second counsel does, however, obviate any possibility

of prejudice even were we to assume the first judge abused his discretion, which

we do not.

The same abuse of discretion standard governs the trial court’s ruling on

Vo’s request for a continuance after his Keenan counsel withdrew for medical

reasons. “A continuance in a criminal trial may only be granted for good cause.

[Citation.] ‘The trial court’s denial of a motion for continuance is reviewed for

abuse of discretion.’ [Citation.] ‘There are no mechanical tests for deciding when

a denial of a continuance is so arbitrary as to violate due process. The answer

must be found in the circumstances present in every case, particularly in the

reasons presented to the trial judge at the time the request is denied.’ [Citations.]”

(People v. Mungia (2008) 44 Cal.4th 1101, 1118 (Mungia).) “The party

challenging a ruling on a continuance bears the burden of establishing an abuse of

discretion, and an order denying a continuance is seldom successfully attacked.

[Citation.] [¶] Under this state law standard, discretion is abused only when the

court exceeds the bounds of reason, all circumstances being considered.

[Citations.]” (People v. Beames (2007) 40 Cal.4th 907, 920.)

Here, as the trial court noted, the January 17, 1995, hearing on the motion

was also the fourth anniversary of the crime. Vo’s counsel acknowledged that

36

work had essentially stopped on the case for over one year while the Court of

Appeal reviewed the granting of the section 995 motion, which had resulted in the

striking of all but one of the special circumstances. As the trial court pointed out,

however, the section 995 motion had not been granted as to the torture-murder

special circumstance, and so the case had remained a capital case. Regarding the

main reason for the continuance request — the withdrawal of Keenan counsel for

health reasons — the court pointed out that over a month had passed, and Vo’s

counsel had not secured a replacement. The court also observed the penalty phase

investigation that Vo’s counsel claimed had not been completed involved issues

such as Vo’s Vietnamese immigrant experience, of which counsel had been aware

as early as 1991, when he first requested Keenan counsel. Moreover, the court

questioned why Attorney Bachers, rather than the defense investigator, was

interviewing penalty phase witnesses, “because the person you want talking to

those people is somebody you’re going to put on the stand to talk in the case, and

you’re not going to put Keenan counsel on the stand.” In sum, the trial court

concluded that the defense was sufficiently prepared to proceed with both the guilt

and penalty phases and that the withdrawal of second counsel did not necessitate a

continuance.

We find no abuse of discretion. Even if counsel could have chosen to

allocate his time differently, he was not denied a reasonable opportunity to prepare

a defense. (People v. Doolin, supra, 45 Cal.4th at p. 450.) Thus, the trial court

was justified in rejecting counsel’s request for more time to prepare his penalty

phase case in light of Keenan counsel’s withdrawal. Moreover, a replacement

37

counsel was appointed, and an extensive penalty phase case was in fact presented.

Thus, Vo fails to demonstrate prejudice in any event.10

B. Guilt Phase Issues

1. Sufficiency of the Evidence Claims

Defendants claim the evidence is insufficient to support the lying-in-wait

special-circumstance findings, the torture-murder special-circumstance findings,

the attempted murder convictions, the firearm enhancements as to Hajek, and the

knife use enhancements as to Vo. Based on the alleged insufficiency of the

evidence at the close of the prosecution’s guilt phase case-in-chief, defendants

additionally contend the trial court should have granted their section 1118.1

motions for dismissal of the lying-in-wait special circumstances and for acquittal

10 “As to this and virtually all other appellate claims, defendant contends that

an issue raised and decided in the trial court resulted in constitutional violations,

but he did not present those constitutional theories below. In such instances, it

appears that (1) the appellate claim is the kind that required no trial court action to

preserve it, or (2) the new arguments do not invoke facts or legal standards

different from those the trial court was asked to apply, but merely assert that the

trial court’s act or omission, in addition to being wrong for reasons actually

presented to that court, had the legal consequence of violating the United States

and California Constitutions. To that extent, defendant’s new constitutional

arguments are not forfeited on appeal. (People v. Boyer (2006) 38 Cal.4th 412,

441, fn. 17, applying People v. Partida (2005) 37 Cal.4th 428, 433-439.) In the

latter case, no separate constitutional discussion is required or provided where

rejection of a claim that the trial court erred on the issue presented to that court

necessarily leads to rejection of any constitutional theory or ‘gloss’ raised for the

first time here.” (People v. Contreras (2013) 58 Cal.4th 123, 139, fn. 17.) We

apply this principle here and elsewhere where defendants, separately or jointly,

assert on appeal constitutional claims not advanced below.

38

on counts 2 through 5 of the information regarding the attempted murders of Cary,

Alice, Tony, and Ellen, and on the knife use enhancements.11

In determining whether the evidence was sufficient either to sustain a

conviction or to support the denial of a section 1118.1 motion, the standard of

review is essentially the same. (People v. Houston (2012) 54 Cal.4th 1186, 1215

(Houston).) “ ‘[W]e do not determine the facts ourselves. Rather, we “examine

the whole record in the light most favorable to the judgment to determine whether

it discloses substantial evidence — evidence that is reasonable, credible and of

solid value — such that a reasonable trier of fact could find the defendant guilty

beyond a reasonable doubt.” [Citations.] We presume in support of the judgment

the existence of every fact the trier could reasonably deduce from the evidence.

[Citation.] [¶] The same standard of review applies to cases in which the

prosecution relies primarily on circumstantial evidence and to special

circumstance allegations. [Citation.] “[I]f the circumstances reasonably justify

the jury’s findings, the judgment may not be reversed simply because the

circumstances might also reasonably be reconciled with a contrary finding.”

[Citation.] We do not reweigh evidence or reevaluate a witness’s credibility.’ ”

(Ibid.; see also People v. Watkins (2012) 55 Cal.4th 999, 1019-1020.) Notably,

however, “[r]eview of the denial of a section 1118.1 motion made at the close of a

prosecutor’s case-in-chief focuses on the state of the evidence as it stood at that

point.” (Houston, at p. 1215; see Watkins, at p. 1019.)

11 As relevant here, section 1118.1 provides: “In a case tried before a jury, the

court on motion of the defendant or on its own motion, at the close of the evidence

on either side and before the case is submitted to the jury for decision, shall order

the entry of a judgment of acquittal of one or more of the offenses charged in the

accusatory pleading if the evidence then before the court is insufficient to sustain a

conviction of such offense or offenses on appeal.”

39

a. Lying-in-wait murder and lying-in-wait special circumstance

Defendants argue the trial court abused its discretion in denying their

motions to dismiss the lying-in-wait special-circumstance allegations at the close

of the prosecution’s case-in-chief. (§ 1118.1.) They also contend the evidence

was insufficient to support their convictions of first degree murder on a lying-in-

wait theory and the true findings on the lying-in-wait special-circumstance

allegations. (§§ 189, 190.2, former subd. (a)(15) as added by Prop. 7, enacted by

voters Nov. 7, 1978.) For the reasons below, we agree the lying-in-wait special-

circumstance findings must be reversed, but conclude that reversal of these

findings does not require reversal of defendants’ death sentences.

At the time of Su Hung’s murder, “the elements of the lying-in-wait special

circumstance required an intentional killing, committed under circumstances that

included a physical concealment or concealment of purpose; a substantial period

of watching and waiting for an opportune time to act; and, immediately thereafter,

a surprise attack on an unsuspecting victim from a position of advantage.

[Citations.] . . . [The period of waiting and watching] need not continue for any

particular length ‘ “of time provided that its duration is such as to show a state of

mind equivalent to premeditation or deliberation.” ’ [Citation.] ‘ “ ‘The element

of concealment is satisfied by a showing “ ‘that a defendant’s true intent and

purpose were concealed by his actions or conduct. It is not required that he be

literally concealed from view before he attacks the victim.’ ” ’ ” ’ [Citation.] The

factors of concealing murderous intent, and striking from a position of advantage

and surprise, ‘are the hallmark of a murder by lying in wait.’ [Citation.]” (People

v. Stevens (2007) 41 Cal.4th 182, 201-202, fns. omitted; People v. Morales (1989)

48 Cal.3d 527, 557.) “[T]he lying-in-wait special circumstance requires ‘that the

killing take place during the period of concealment and watchful waiting . . . .’

40

[Citation.]” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1149.) “ ‘During’

means ‘at some point in the course of.’ ” (People v. Lewis (2008) 43 Cal.4th 415,

514 (Lewis).)

Moreover, when the capital crime occurred, the lying-in-wait special

circumstance required a showing that the defendant “intentionally killed the victim

while lying in wait.” (§ 190.2, former subd. (a)(15), italics added.) In 2000, the

electorate approved Proposition 18 which, among other things, “changed the

language of the lying-in-wait special circumstance to delete the word ‘while’ and

substitute in its place ‘by means of.’ ” (Lewis, supra, 43 Cal.4th at p. 512, fn. 25.)

Because Su Hung’s murder occurred before this statutory change, we apply the

case law interpreting the more stringent requirement of the former law. (See id. at

p. 511.)

At trial, the evidence showed that Su Hung was killed while defendants

were waiting for her granddaughter, Ellen, to return home. The trial court, using a

“transferred intent” analogy, concluded that even though Ellen was the target, “the

murder did occur during the process of lying in wait, so that special [circumstance]

will not be dismissed.”12 The Attorney General disavows the trial court’s

rationale and argues on appeal that Su Hung herself was the target of defendants’

lying in wait.13 Defendants counter the evidence was insufficient to establish that

Su Hung’s murder occurred while they were lying in wait for her.

12 Our research has yielded no support in case law for the trial court’s

transferred intent analogy.

13 Defendants maintain the People have forfeited this argument because it was

not presented at trial. However, review of the prosecution’s closing argument

discloses it did not rely on a transferred intent analogy but rather, as the Attorney

General does here, contended the evidence showed defendants lay in wait for the

murder victim herself. Accordingly, we reject the claim of forfeiture.

41

In evaluating defendants’ contentions, we find Lewis, supra, 43 Cal.4th

415, instructive. There, the defendant and his accomplices had “accomplished the

forcible kidnapping of [several victims] while lying in wait, but then drove the still

living victims around in their cars for periods of one to three hours, while

withdrawing money from the victims’ bank accounts, before killing them. By the

time of the killings, the concealment, the watchful waiting, and the surprise attack

all had taken place at least one and up to three hours earlier.” (Id. at p. 514.) In

assessing the sufficiency of the evidence, Lewis took note of the prosecutor’s

argument that the defendant had concealed his purpose to kill from each of the

victims until the moment they were killed, in some cases assuring the victims they

would not be harmed. Nonetheless, Lewis concluded that “ ‘mere’ concealment of

purpose is not enough to support the lying-in-wait special circumstance.

[Citation.] Rather, such concealment must be contemporaneous with a substantial

period of watching and waiting for an opportune time to act, and followed by a

surprise attack on an unsuspecting victim from a position of advantage.

[Citation.]” (Ibid.) As Lewis emphasized, “there was no evidence that, while

concealing his purpose to kill, defendant watched and waited for an opportune

time to kill the victims. Rather, the evidence suggests each was killed when, and

only when, his or her ATM withdrawal limit had been reached and the victim had

been driven to a suitable location for killing. Moreover, there was no evidence

that the victims were surprised. Indeed, the evidence suggests each victim must

have been aware of being in grave danger long before getting killed.” (Id. at

pp. 514-515.)

The evidence here is comparable to that in Lewis and calls for a similar

result. Defendants entered the Wang residence by ruse, displayed a gun, and

shortly thereafter bound and blindfolded the frightened victim and isolated her in

42

an upstairs bedroom for several hours before finally killing her. From the moment

defendants took Su Hung and Alice hostage, Su Hung could not have perceived

their actions as anything other than a serious threat to her safety, even if they

untied her for a period of time while she was kept isolated in the bedroom. Thus,

even assuming defendants engaged in a period of watchful waiting before entering

the house using the element of surprise, it was followed by “a series of nonlethal

events” over the course of several hours, “and then a cold, calculated, inevitable,

and unsurprising dispatch” of the victim. (Lewis, supra, 43 Cal.4th at p. 515.)

Moreover, even assuming defendants never revealed their true purpose to kill the

entire Wang family, there was no evidence that, while concealing that purpose,

defendants watched and waited for an opportune time to kill Su Hung. Thus, even

when the evidence is considered in a light most favorable to the judgment, it

simply fails to establish that defendants’ concealment was contemporaneous with

a substantial period of watching and waiting for an opportune time to act, or that

their concealment allowed them to launch a surprise attack on an unsuspecting

victim from a position of advantage. Although the evidence shows Su Hung was

killed in a most horrifying manner, it falls short of establishing she was killed

while defendants were lying in wait for her.

Accordingly, we conclude the evidence was insufficient to show that

defendants “intentionally killed the victim while lying in wait,” as required under

the former law. (§ 190.2, former subd. (a)(15), italics added; see Lewis, supra, 43

Cal.4th at pp. 514-515.) We now address whether reversal of the lying-in-wait

special-circumstance findings requires reversal of defendants’ death sentences.

Citing Stringer v. Black (1992) 503 U.S. 222, Hajek (joined by Vo) argues

that “the invalidated aggravating factor necessarily added to the aggravating side

43

of the balance and this prejudiced [defendant] when the jury was deciding whether

to sentence him to death.” We disagree.

Not only did a valid special-circumstance finding remain (torture murder,

see post, pt. II.B.1.b.), but the jury was statutorily permitted to consider all of the

facts and circumstances underlying Su Hung’s murder. As the United States

Supreme Court recognized in Brown v. Sanders (2006) 546 U.S. 212, the

invalidation of a special circumstance does not require reversal of the death

sentence under California’s statutory scheme if “one of the other sentencing

factors enables the sentencer to give aggravating weight to the same facts and

circumstances.” (Id. at p. 220; People v. Castaneda (2011) 51 Cal.4th 1292,

1354.) In urging the death penalty, the prosecutor here relied almost exclusively

on factor (a) of section 190.3, which allows consideration of “the immediate

temporal and spatial circumstances of the crime,” as well as “that which surrounds

the crime materially, morally, or logically.” (People v. Hamilton (2009) 45

Cal.4th 863, 926.) In this case, the factor (a) evidence was the same evidence the

prosecutor cited in his attempt to establish lying in wait — that is, defendants

gained entry into the Wang residence by ruse; they displayed a gun; they quickly

bound and blindfolded Su Hung; and they isolated her upstairs for several hours

before finally killing her. In the words of the United States Supreme Court, “[a]ll

of the aggravating facts and circumstances that the invalidated [special

circumstances] permitted the jury to consider were also open to their proper

consideration under [section 190.3, factor (a)],” and thus the invalid special

circumstances “could not have ‘skewed’ the sentence.” (Brown, at p. 223 [finding

no constitutional violation where jury rendered death verdict after making four

special-circumstance findings, two of which were invalidated on appeal].) That

the evidence was insufficient to establish lying in weight did not render its

44

consideration by the jury inappropriate. Because the invalid lying-in-wait special

circumstances “did not alter the universe of facts and circumstances to which the

jury could accord . . . weight” (People v. Bonilla (2007) 41 Cal.4th 313, 334), and

because “[t]here is no likelihood that the jury’s consideration of the mere existence

of the [lying-in-wait] special circumstance tipped the balance toward death”

(Mungia, supra, 44 Cal.4th at p. 1139), the invalidity of the lying-in-wait special

circumstances does not warrant reversal of the death sentences.14

b. Torture murder and torture-murder special circumstance

Defendants contend the first degree torture-murder convictions and the

torture-murder special-circumstance findings were not supported by substantial

evidence.15 We conclude the evidence was sufficient.

“To prove torture murder, the prosecution must establish ‘ “a willful,

deliberate, and premeditated intent to cause extreme pain or suffering for the

purpose of revenge, extortion, persuasion, or another sadistic purpose.” ’

[Citation.] To prove a torture-murder special circumstance, the prosecution must

show that defendant intended to kill and had a torturous intent, i.e., an intent to

14 In light of our conclusions above, defendants’ attacks on the

constitutionality of the special circumstance are moot. We also find it unnecessary

to address defendants’ claims that the evidence is insufficient to support the

convictions of lying-in-wait first degree murder, because the first degree murder

verdicts can be affirmed on theories of torture murder and premeditated murder.

(See post, pt. II.B.1.b.; People v. Rundle (2008) 43 Cal.4th 76, 141 [“ ‘[W]e need

not consider [a sufficiency] claim . . . when the court can determine from the

record that the verdict rested on a theory which is supported by sufficient

evidence.’ ”].)

15 Defendants did not move for dismissal or acquittal of the torture-murder

special-circumstance allegations at the conclusion of the prosecution’s case-in-

chief. (§ 1118.1.) Accordingly, we look to the entirety of the guilt phase to assess

the sufficiency of the evidence for these special circumstance findings.

45

cause extreme pain or suffering for the purpose of revenge, extortion, persuasion,

or another sadistic purpose. [Citation.] The jury may infer the intent to inflict

extreme pain from the circumstances of the crime, the nature of the killing, and the

condition of the victim’s body. [Citation.]” (People v. Streeter (2012) 54 Cal.4th

205, 237 (Streeter).)16 “ ‘There is no requirement that the victim be aware of the

pain.’ ” (People v. Elliot (2005) 37 Cal.4th 453, 466-467.) Thus, as to both

torture murder and torture-murder special circumstances, the sufficiency inquiry is

directed at evidence of the defendant’s torturous intent. (People v. Mincey (1992)

2 Cal.4th 408, 433 (Mincey).)

It bears emphasis that “the trier of fact may find intent to torture based on

all the circumstances surrounding the charged crime, including the nature and

severity of the victim’s wounds and any statements by the defendant revealing his

state of mind during the crime.” (People v. Bemore (2000) 22 Cal.4th 809, 841

(Bemore).) For example, evidence that the defendant intentionally inflicted

nonlethal wounds on the victim may demonstrate the requisite “ ‘sadistic intent to

cause the victim to suffer pain in addition to the pain of death.’ ” (Ibid.; see id. at

p. 844 [“Certain nonlethal knife wounds . . . seem plainly calculated to cause

extreme pain and to induce [the victim’s] cooperation.”]; see also Mungia, supra,

44 Cal.4th at p. 1137 [“When we have upheld [torture-murder special-

circumstance findings], the evidence has shown that the defendant deliberately

16 Hajek contends that the prosecutor conflated the elements of torture murder

and the torture-murder special circumstance, but the relevance of this assertion to

his sufficiency argument is unclear. He acknowledges that “the principal area of

overlap” between the elements of the torture murder and the torture-murder

special circumstance “is the requirement that the prosecution prove beyond a

reasonable doubt that the defendant had an intent to cause the victim extreme

pain.” It is precisely this intent requirement that Hajek argues is unsupported by

substantial evidence, and it is this contention we address.

46

inflicted nonfatal wounds or deliberately exposed the victim to prolonged

suffering.”]; People v. Crittenden (1994) 9 Cal.4th 83, 141 (Crittenden)

[intentional nonfatal injuries “are consistent only with an intent to inflict extreme

pain”].) Although evidence of binding, by itself, is insufficient to establish an

intent to torture (Mungia, at p. 1138), it is appropriate to consider whether the

victim was bound and gagged, or was isolated from others, thus rendering the

victim unable to resist a defendant’s acts of violence. (Crittenden, at p. 141

[victims bound and gagged]; People v. Proctor (1992) 4 Cal.4th 499, 532 [“victim

was isolated and prevented from resisting or escaping”]; cf. People v. Chatman

(2006) 38 Cal.4th 344, 391 [binding not required to prove torture].) Finally, the

manner of the victim’s death may also evidence the defendant’s intent to torture.

(Proctor, at pp. 531-532.)

Considered as a whole, the circumstances surrounding Su Hung’s murder

provide substantial evidence of defendants’ torturous intent. Significantly, there

was substantial medical evidence showing Su Hung suffered a number of

nonlethal wounds before she was strangled and her throat slashed. These wounds

— which were neither inadvertent nor accidental — included blunt force trauma to

her chin, a stab wound to her shoulder that left a bleeding gash one inch long and

one inch deep, and five shallow puncture wounds to her chest from a sharp

instrument. These wounds evidenced deliberate and gratuitous violence beyond

that which was necessary to kill the victim, and the jury could reasonably infer

from the circumstances that the wounds were inflicted to cause her severe pain

while she was bound, gagged, and utterly helpless. (See Bemore, supra, 22

Cal.4th at p. 842; Crittenden, supra, 9 Cal.4th at p. 141.)

Moreover, the jury was presented with explicit evidence that defendants’

crimes were motivated by a sadistic intent. Hajek was heard to make statements

47

that evidenced his intent to carry out a vengeful and sadistic plan to murder. Two

days before the killing, Hajek told Tevya Moriarty that he and his girlfriend had

gotten into a fight with a girl, and that he wanted to get back at the girl. He said

that he was going to the girl’s house to kill her and her family, and that he planned

to kill the girl’s family first so he could “look in [the girl’s] eyes when he killed

her.” Not only did these statements evidence Hajek’s desire to murder Ellen after

forcing her to watch as they first killed her family members, but a jury could

reasonably find that such statements, in combination with the condition of Su

Hung’s body, showed that defendants did not kill Su Hung quickly but intended to

inflict extreme pain before finally executing her.

Finally, the manner in which Su Hung was killed furnished additional

evidence of defendants’ torturous intent. Death by strangulation will always take

some amount of time, so generally that fact alone is insufficient to establish an

intent to torture. However, combined with the other circumstances here —

including the duplicative nature of the lethal wounds to Su Hung’s throat, the

nonlethal wounds, and evidence of an express sadistic intent — evidence of the

manner of Su Hung’s death is consistent with an intent to inflict extreme pain or

suffering.

Hajek effectively concedes his statements to Moriarty were evidence of a

motive to exact revenge against Ellen. He argues, however, they did not provide

substantial evidence of an intent to inflict extreme pain on the murder victim, Su

Hung. We are not persuaded. While Hajek did not explicitly say he intended to

inflict extreme pain on Su Hung or any of the Wangs before killing them, that

intent can be inferred from the totality of the circumstances: the sadistic nature of

defendants’ plan (to first kill Ellen’s family members while she watched and then

to kill her), the deliberate and nonlethal wounds they inflicted on Su Hung while

48

she was bound and completely defenseless (striking her chin hard enough to leave

a bruise, stabbing her gratuitously in the shoulder, and treating her like a

pincushion while they superficially punctured her chest five times),17 and the

manner in which they killed her (choking her slowly but forcefully with a ligature

until they fractured her thyroid cartilage, then slashing her throat through her

trachea and jugular vein).

Hajek also fails to persuade us that Su Hung’s injuries did not reflect a

torture murder because they were not sufficiently similar to the “extreme injuries”

that other decisions found “support[ed] the inference of an intent to inflict extreme

and prolonged pain.”18 With regard to the perceived lack of severity of Su Hung’s

wounds, it was obvious to defendants that she was a frail woman who was elderly

and diminutive. Su Hung’s physical dimensions (she stood five foot one and

weighed 87 pounds) were basically those of a child, and her age (73 years)

rendered her extremely vulnerable. She was, moreover, bound, gagged, separated

from her family, and completely under the domination of the two defendants. We

17 The coroner testified he could not tell whether the five puncture wounds to

Su Hung’s chest had been inflicted pre- or postmortem because there was little

blood associated with them. However, he also repeatedly testified that he would

not have expected there would have been much blood even if they had been

inflicted premortem. The jury could reasonably have inferred, given the nonlethal

and nonaccidental stab wound to the victim’s shoulder, that the wounds to her

chest were inflicted while she was still alive. The substantial evidence standard of

review requires that we draw this inference, and all other favorable inferences that

are supportive of the jury’s special circumstance finding. (Streeter, supra, 54

Cal.4th at p. 241.)

18 Hajek’s sufficiency of the evidence claim appears to incorporate a

challenge to the prosecutor’s characterization of the victim’s injuries in closing

argument. To that extent, the claim is one of prosecutorial misconduct that has

been forfeited by the failure to object to the prosecutor’s remarks at trial. (People

v. Ledesma (2006) 39 Cal.4th 641, 726.)

49

cannot agree with Hajek that the wounds left by the various acts of striking,

stabbing, puncturing, and strangling this frail, defenseless, and isolated victim

were not sufficiently extreme to support the inference of an intent to cause her

severe pain and suffering, when considered in light of the totality of the

circumstances — including defendants’ express sadistic plan. (See Bemore,

supra, 22 Cal.4th at pp. 841-842; Crittenden, supra, 9 Cal.4th at p. 141.)

Vo argues separately that the evidence is insufficient as to him because

there was no evidence that he himself killed or tortured the victim, or that he

intended to participate in the killing or the torture. At trial, Vo testified he tagged

along with Hajek that day out of friendship, without any knowledge of Hajek’s

plan to murder Ellen’s family and then Ellen. There was, however, substantial

evidence casting grave doubt on his credibility.

First, the prosecution’s case included letters that Vo had written to Lori

Nguyen. These letters, which revealed Vo’s unrequited love for Nguyen, provided

substantial evidence that Vo had his own independent motive to seek revenge on

Ellen: He could impress Nguyen with how much he loved her.

Second, Vo had to have known about the altercation between Nguyen,

Hajek, and Ellen, because Vo was at Hajek’s house the night of its occurrence and

had heard Hajek and Ellen exchanging angry phone calls. Moreover, Hajek had

told Moriarty, who was scarcely more than an acquaintance of his, that because of

this altercation he planned to kill the family of the girl involved (Ellen), and then

the girl herself. From these two circumstances the jury could reasonably have

concluded it inconceivable that Hajek would not similarly have confided his

sadistic and murderous plan to Vo, one of his best friends, whom he enlisted to

carry out the plan.

50

Third, the evidence did not show that Vo passively followed Hajek in the

activities leading up to the murder. To the contrary, the evidence established that

Vo was an active participant who often took the lead in executing the plan. It was

Vo who tied up Su Hung, Vo who threatened Cary with a knife, and Vo who told

Cary he wanted to teach Ellen a lesson. When Ellen did not come home as

anticipated and time was passing, Vo became impatient and forced Cary to go out

on a search for Ellen to bring her home, presumably so that the killing could

begin.

Finally, all the evidence is consistent with a conclusion that Vo actively

participated in the torture of Su Hung. The evidence established that each

defendant went several times to the bedroom where the victim was being held in

isolation. Thus, Vo was as likely as Hajek to have inflicted some or all of the

victim’s nonlethal and lethal wounds. Because Vo was the only defendant seen

possessing and using a knife, the jury could reasonably have concluded that Vo

inflicted the shoulder stabbing, chest punctures, and throat slashing. Although Vo

points to the minute amounts of the victim’s blood on Hajek’s glove and coat as

evidence that Hajek, not Vo, killed Su Hung, such evidence did not foreclose a

conclusion that Vo tortured or killed the victim. Indeed, there was evidence that a

second pair of gloves, presumably Vo’s, was found on the kitchen table.19

Additionally, a knife that later tested positive for blood was found lying over a

puddle of water in the kitchen sink, although it could not be determined whether

the blood was human or animal, fresh or old. On this record, the jury could

reasonably have accepted the prosecution’s theory that Vo removed his gloves to

use the knife on the victim and then washed both his hands and the knife in the

19 Although Cary had seen Vo wearing gloves when he held a knife to her

throat, Tony testified that Vo was not wearing gloves later on when Vo gagged

and threatened to kill Tony in the upstairs room.

51

kitchen sink. Thus, while it is plausible that Hajek used the knife on Su Hung, it is

just as plausible that both of them, or perhaps only Vo, did so.

In any event, even if Vo did not personally inflict the lethal and nonlethal

wounds on Su Hung, there was substantial evidence showing that Vo shared

Hajek’s torturous intent and aided and abetted the commission of torture murder.

Considering all the evidence in the light most favorable to the judgment, and

presuming the existence of every fact the jury could reasonably deduce from the

evidence, we conclude the jury could reasonably have found that Vo shared the

intent to torture and murder the victim.

In sum, we find that the totality of the circumstances of the crime amply

demonstrated an intent to torture, and that substantial evidence supports the torture

murder convictions and torture-murder special-circumstance findings as to both

defendants. (Streeter, supra, 54 Cal.4th at p. 246 [where evidence supports first

degree murder conviction on torture-murder theory it also supports a finding of

torturous intent for purpose of the torture-murder special-circumstance

allegation].)

Furthermore, and in any event, ample evidence supports both defendants’

first degree murder convictions on a deliberate and premeditated murder theory.

Defendants arrived at the Wang residence in furtherance of their plan to exact

revenge on Ellen. The circumstances of the murder, including the evidence of

defendants’ planning, motive, and the manner of killing, indicate it was conduct

undertaken with “preexisting thought and reflection” and was not the result of “an

unconsidered rash impulse.” (Houston, supra, 54 Cal.4th at p. 1216 [planning,

52

motive, and manner of killing are relevant to resolving issue of premeditation and

deliberation].)20

c. Attempted murder

Defendants challenge the denial of their section 1118.1 motions for

acquittal of the attempted murder counts involving Cary, Alice, Tony, and Ellen.

They also contend the evidence is insufficient to support their convictions on these

counts. Although we may look to the entire record to evaluate the latter

contention, we find we may dispose of both contentions by reviewing the evidence

adduced in the prosecution’s case-in-chief.

“Attempted murder requires the specific intent to kill and the commission

of a direct but ineffectual act toward accomplishing the intended killing.” (People

v. Ervine (2009) 47 Cal.4th 745, 785.) “The overt act element of attempt requires

conduct that goes beyond ‘mere preparation’ and ‘show[s] that [defendant] is

putting his or her plan into action.’ [Citations.] [¶] . . . [T]he line between mere

preparation and conduct satisfying the act element of attempt often is difficult to

determine; the problem ‘is a question of degree and depends upon the facts and

circumstances of a particular case.’ [Citation.] The act that goes ‘beyond mere

preparation’ need not constitute an element of the target crime [citation], and it

‘ “need not be the ultimate step toward the consummation of the design.” ’

[Citation.] Instead, ‘ “it is sufficient if [the conduct] is the first or some

subsequent act directed towards that end after the preparations are made.” ’

[Citation.] In other words, we have explained, the act must represent ‘ “some

20 Having concluded that substantial evidence supports defendants’ first

degree murder convictions on torture-murder and premeditated murder theories,

we need not, and do not, address whether substantial evidence supports

defendants’ first degree murder convictions on a burglary-murder or robbery-

murder theory.

53

appreciable fragment of the crime.” ’ [Citations.]” (People v. Watkins, supra, 55

Cal.4th at p. 1021.) For the reasons below, we find substantial evidence of

defendants’ attempt to murder Cary, Alice, Tony, and Ellen.

The evidence presented in the prosecution’s case-in-chief included the

following. Hajek told Moriarty he planned to kill Ellen and her family in

retaliation for his altercation with Ellen, and to make the crime appear like a

robbery. Although Vo did not participate in this conversation, the evidence

showed that Vo was present at Hajek’s house with Nguyen when Hajek and Ellen

were exchanging hostile phone calls later that evening, and that Vo also had an

unrequited romantic interest in Nguyen. The evidence also showed that Vo and

Hajek were good friends and that they acted in concert the day of the crimes. That

morning, defendants drove a stolen van and parked it some distance from the

Wang residence. Wearing gloves and armed with a pellet gun, they gained

entrance to the Wang residence. Hajek pointed the gun at Alice, and Vo bound

and blindfolded Su Hung and isolated her by moving her to an upstairs room.

Over the course of several hours, defendants, either jointly or individually, held

four members of the Wang family hostage; accosted the family members with

weapons and threatened to kill them; went out in search of Ellen, presumably to

force her home and start the planned killings; refused to negotiate with Cary or

Tony, but insisted on waiting for Ellen; bound and gagged Tony in an upstairs

room, just as they had his mother-in-law; and killed Su Hung. Defendants also

ransacked the house, inferentially in furtherance of their plan to make it appear as

if a robbery had occurred. Their plot to kill Ellen and her entire family might very

well have succeeded had the police not been called to intervene. On this record,

there was substantial direct and circumstantial evidence that each defendant

54

harbored a specific intent to kill, that they agreed on a plan for doing so, and that

each took significant steps in putting their plan into action.

Although Hajek made explicit statements concerning his murderous intent

to Moriarty, he argues those statements alone cannot constitute the corpus delicti

of the crime. (People v. Ochoa (1998) 19 Cal.4th 353, 450 [prosecution must

establish the corpus delicti of the crime by evidence independent of the

defendant’s extrajudicial statements].) While true, this does not help him. “The

independent evidence [establishing the corpus delicti of a crime] may be

circumstantial, and need only be ‘a slight or prima facie showing’ permitting an

inference of injury, loss, or harm from a criminal agency, after which the

defendant’s statements may be considered to strengthen the case on all issues.”

(People v. Alvarez (2002) 27 Cal.4th 1161, 1181.) The same “ ‘slight acts’ ”

standard applies to evidence establishing the overt acts for purposes of attempt.

(People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8 [“[W]e have long

recognized that ‘[w]henever the design of a person to commit crime is clearly

shown, slight acts in furtherance of the design will constitute an attempt.’ ”]; see

People v. Dillon (1983) 34 Cal.3d 441, 455; People v. Morales (1992) 5

Cal.App.4th 917, 926-927.) Here, the independent evidence of Hajek’s actions at

the Wang residence was more than sufficient to permit consideration of his

statements to Moriarty regarding his intent.

Vo contends Hajek’s statements to Moriarty, which were not made in Vo’s

presence and of which he claims no knowledge, constituted the only evidence the

prosecution presented of his intent to murder Ellen and her family. That is

incorrect. As indicated, there was evidence that Vo was infatuated with Nguyen

and that he was aware of the altercation involving her, Hajek, and Ellen, because

he was at Hajek’s house during some of the hostile calls between Hajek and Ellen.

55

The evidence also shows that Vo went to the Wang residence with Hajek and

participated fully in the criminal conduct that occurred over the course of several

hours, often taking the lead. Indeed, Vo told Cary at one point he was going to

teach Ellen a lesson.

From the facts and circumstances surrounding Vo’s activities, a jury could

reasonably have concluded that he was aware of Hajek’s plan to kill all the

members of the Wang family and shared Hajek’s intent to do so. Under the

applicable standard of review, it matters not whether the circumstances might also

reasonably support a different finding. (People v. Watkins, supra, 55 Cal.4th at

p. 1020.)

Both defendants maintain there was insufficient evidence of an act that

went beyond mere preparation. We reject their claim under the “ ‘slight acts’ ”

rule cited above. (People v. Superior Court (Decker), supra, 41 Cal.4th at p. 8.)

At the point defendants entered the Wang residence and took Alice and Su Hung

hostage, it can fairly be said they were “ ‘ “actually putting [their murderous] plan

into action.” ’ ” (Id. at p. 9; People v. Morales, supra, 5 Cal.App.4th at pp. 926-

927.) Certainly, their subsequent conduct, up to and including the actual murder

of Su Hung, reflected far more than slight acts toward commission of their plan to

kill the entire Wang family.

In sum, the record contains substantial evidence of defendants’ attempt to

murder Cary, Alice, Tony, and Ellen.

d. Hajek’s firearm use enhancements

Pursuant to former section 12022.5, subdivision (a), counts 1 through 9 of the

information alleged that Hajek personally used a firearm, “to wit: [a] PELLET

GUN,” in the commission of the offenses. The jury found these allegations true,

and Hajek was sentenced to five years on each of the enhancements for counts 1

56

through 9. Hajek contends that a change in the law excluding pellet guns from the

definition of a firearm requires that we vacate or strike these nine firearm use

enhancements. We agree in part.

Former section 12022.5 was part of part 4, title 2 of the Penal Code

pertaining to control of deadly weapons. Prior to 1991, the definition of “firearm”

for purposes of former section 12022.5 was set forth in sections 12001 and

12001.1, and section 12001.1 at the time included pellet guns within its definition.

(Former § 12001.1, added by Stats. 1988, ch. 1605, § 3, p. 5821.) In 1991, the

Legislature repealed section 12001.1 (Stats. 1991, ch. 950, § 4, p. 4324) and

amended section 12001 (Stats. 1991, ch. 955, § 1.1, p. 4451). As amended in

1991, section 12001 did not include pellet guns within the definition of “firearm”

for purposes of any title 2 enhancement. (§ 12001, subd. (b), added by Stats.

1991, ch. 955, § 1.1, p. 4451.) The only reference to pellet guns was in

subdivision (g) of section 12001, which expanded the definition of “firearm” for

purposes of prohibiting the sale of firearms to minors.

In People v. Vasquez (1992) 7 Cal.App.4th 763 (Vasquez), a jury had

convicted the defendant of four counts of robbery, with enhancements for being

armed with a firearm and personal use of a firearm. Because the weapon that was

the basis of the enhancements was a pellet gun, the defendant argued on appeal

that the repeal of section 12001.1 and the amendment of section 12001 required

reversal of the enhancement findings. The Court of Appeal agreed: “Application

of this new statutory definition for ‘firearm,’ or restricted definition, to Vasquez’s

crimes committed before its operative date (Jan. 1, 1992) changes the legal

consequences of his criminal conduct. [Citation.] Such application is permissible

because the restricted definition generally favors defendants. [Citation.]”

57

(Vasquez, at p. 767.) Accordingly, the court reversed the true findings of all the

firearm enhancements. (Id. at p. 769.)

The Vasquez court relied heavily on the rule articulated in In re Estrada

(1965) 63 Cal.2d 740 (Estrada), which established an exception to the general rule

that no part of the Penal Code is retroactive. (§ 3 [no part of the Penal Code is

retroactive “unless expressly so declared”]; see Vasquez, supra, 7 Cal.App.4th at

pp. 767-769.) In Estrada, we held that “where [an] amendatory statute mitigates

punishment and there is no saving clause, the rule is that the amendment will

operate retroactively so that the lighter punishment is imposed.” (Estrada, at

p. 748.)

As we recently explained, Estrada represents “an important, contextually

specific qualification to the ordinary presumption that statutes operate

prospectively: When the Legislature has amended a statute to reduce the

punishment for a particular criminal offense, we will assume, absent evidence to

the contrary, that the Legislature intended the amended statute to apply to all

defendants whose judgments are not yet final on the statute’s operative date.

[Citation.] We based this conclusion on the premise that ‘ “[a] legislative

mitigation of the penalty for a particular crime represents a legislative judgment

that the lesser penalty or the different treatment is sufficient to meet the legitimate

ends of the criminal law.” ’ [Citation.] ‘ “Nothing is to be gained,” ’ we reasoned,

‘ “by imposing the more severe penalty after such a pronouncement . . . other than

to satisfy a desire for vengeance” ’ [citation] — a motive we were unwilling to

attribute to the Legislature.” (People v. Brown (2012) 54 Cal.4th 314, 323

(Brown).)

Importantly, however, while acknowledging the continuing viability of the

Estrada rule, we have emphasized its narrowness: “Applied broadly and literally,

58

Estrada’s remarks about section 3 would . . . endanger the default rule of

prospective operation. Recognizing this in Evangelatos [v. Superior Court (1988)

44 Cal.3d 1188], we declined to follow Estrada’s remarks about section 3 and

held that ‘language in Estrada . . . should not be interpreted as modifying this

well-established legislatively-mandated principle.’ [Citation.] Accordingly,

Estrada is today properly understood, not as weakening or modifying the default

rule of prospective operation codified in section 3, but rather as informing the

rule’s application in a specific context by articulating the reasonable presumption

that a legislative act mitigating the punishment for a particular criminal offense is

intended to apply to all nonfinal judgments. [Citation.]” (Brown, supra, 54

Cal.4th at p. 324.)

We agree that, thus understood, Vasquez properly applied the Estrada rule to

the 1991 repeal of section 12001.1 and amendment of section 12001. Consistent

with Vasquez, we conclude that, because Hajek’s judgment was not yet final at the

time of the legislative action, his firearm use enhancements involving the use of a

pellet gun must be struck.

That, however, does not end the discussion. In People v. Schaefer (1993)

18 Cal.App.4th 950, the same division of the Court of Appeal that decided

Vasquez was confronted by a similarly situated defendant who also sought reversal

of true findings of firearm use enhancements because he, too, had been armed with

a pellet gun when committing the crimes. Schaefer agreed the defendant was

entitled to the benefit of Vasquez, but went on to conclude that “Vasquez [did] not

eliminate the law holding a pellet gun to be a deadly or dangerous weapon within

the meaning of Penal Code section 12022, subdivision (b). [Citation.]” (Schaefer,

at p. 951.) Reasoning that the defendant’s admission of the firearm use

enhancements (former § 12022.5) necessarily included his admission of deadly or

59

dangerous weapon enhancements (former § 12022, subd. (b) (former section

12022(b)), Schaefer struck the former enhancements and replaced them with

enhancements under the latter statute, resulting in a reduced sentence. (Schaefer,

at p. 951.)

Like the defendant’s admissions in Schaefer, the jury’s true findings on the

firearm use enhancements (former § 12022.5, subd. (a)) necessarily included true

findings on deadly or dangerous weapon use enhancements (former § 12022(b)).

Consistent with Schaefer, we order that Hajek’s firearm use enhancements be

struck and replaced with deadly or dangerous weapon use enhancements.

e. Vo’s knife use enhancements

The amended information alleged that Vo used a deadly weapon, to wit, a

knife, in the commission of the attempted murders of Cary, Alice, Tony, and Ellen

(counts 2 through 5), the kidnapping of Cary (count 6), and the false imprisonment

of Tony (count 9). (Former § 12022(b).) The jury found these allegations true.

Vo contends the evidence was insufficient to support the knife use allegations and

findings.

“ ‘We review the sufficiency of the evidence to support an enhancement

using the same standard we apply to a conviction. [Citation.] Thus, we presume

every fact in support of the judgment the trier of fact could have reasonably

deduced from the evidence.’ [Citation.]” (People v. Wilson (2008) 44 Cal.4th

758, 806.) “The question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

elements of the underlying enhancement beyond a reasonable doubt.” (People v.

Alvarez (1996) 14 Cal.4th 155, 225.)

At the time of Vo’s crimes, former section 12022(b) provided: “Any

person who personally uses a deadly or dangerous weapon in the commission or

60

attempted commission of a felony shall, upon conviction of such felony or

attempted felony, in addition and consecutive to the punishment prescribed for the

felony or attempted felony of which he or she has been convicted, be punished by

an additional term of one year, unless use of a deadly or dangerous weapon is an

element of the offense of which he or she was convicted.” (Stats. 1989, ch. 1284,

§ 2, p. 5058.) This provision represents a legislative judgment that the use of a

deadly or dangerous weapon in the commission of some felonies “justifies an

additional penalty to that prescribed for the underlying felonies.” (People v. Wims

(1995) 10 Cal.4th 293, 305.) “In order to find ‘true’ a section 12022(b) allegation,

a fact finder must conclude that, during the crime or attempted crime, the

defendant himself or herself intentionally displayed in a menacing manner or

struck someone with an instrument capable of inflicting great bodily injury or

death. [Citations.]” (Id. at p. 302.)

In determining whether there was substantial evidence of Vo’s knife use,

we may properly consult cases construing the term “uses” in other enhancement

statutes under “ ‘The Dangerous Weapons’ Control Law.’ ” (People v. Masbruch

(1996) 13 Cal.4th 1001, 1006.) Hence, we may rely on cases construing the term

as it is understood for purposes of section 12022.5, which addresses personal use

of a firearm in the commission or attempted commission of a felony. (People v.

James (1989) 208 Cal.App.3d 1155, 1163; see People v. Wilson, supra, 44 Cal.4th

at pp. 806-807 [construing “uses” in former § 12022.5, subd. (a)]; People v.

Granado (1996) 49 Cal.App.4th 317, 325 [same] (Granado).) As we have

recognized in the context of former section 12022.5, subdivision (a), “ ‘The

obvious legislative intent to deter the use of firearms in the commission of the

specified felonies requires that “uses” be broadly construed.’ [Citation.] ‘Thus

when a defendant deliberately shows a gun, or otherwise makes its presence

61

known, and there is no evidence to suggest any purpose other than intimidating the

victim (or others) so as to successfully complete the underlying offense, the jury is

entitled to find a facilitative use rather than an incidental or inadvertent

exposure.’ ” (People v. Wilson, supra, 44 Cal.4th at pp. 806-807, quoting

Granado, supra, 49 Cal.App.4th at p. 325.)

In Granado, the Court of Appeal, applying these principles, upheld a

firearm use enhancement as to a victim who was not aware the defendant was

armed and did not see the firearm. The defendant and another man confronted the

two victims, Walter and Wilfredo Calderon, on the street and demanded money

from them. Defendant took a gun from his waistband, which Walter saw, but

Wilfredo fled without apparently having seen the gun. (Granado, supra, 49

Cal.App.4th at pp. 320-321.) On appeal, the defendant argued that the firearm use

enhancement as to Wilfredo should be set aside because the evidence did not show

that Wilfredo was aware the defendant was armed with a gun. In a thoughtful

opinion, the Court of Appeal rejected the argument. As the court pointed out, the

underlying purpose of the firearm use statute is to deter defendants from using a

firearm. “At its core the statute addresses the pervasive and inherent escalation of

danger which arises from the defendant’s act of deployment. By merely bringing

a gun ‘into play,’ the defendant removes impediments to its actual discharge and

thus enhances the danger of violent injury not only through an intentional act by

the victim or a third party, but through an impulsive or inadvertent act by the

defendant.” (Id. at p. 327.) In light of this purpose, the court reasoned, “[t]o

excuse the defendant from this consequence merely because the victim lacked

actual knowledge of the gun’s deployment would limit the statute’s deterrent

effect for little if any discernible reason.” (Ibid.) We find this reasoning equally

62

applicable in the context of deadly or dangerous weapon use enhancements under

former section 12022(b).

Vo contends that, “[a]side from the one brief period” when he held a knife

“near” Cary before putting it away, there was no other evidence he was seen in

possession of, or using, a knife. We disagree. Applying the principles articulated

above, we find substantial evidence of Vo’s knife use as to all victims.

The prosecution’s case-in-chief included the following evidence. The

police discovered two knives in the stolen van in which defendants arrived at the

Wang residence, showing that defendants apparently contemplated, from the

beginning, use of a knife to carry out their plan to kill Ellen and her family. The

murder victim’s throat had been slashed by a “sharp bladed instrument” that the

coroner believed was a knife, and her shoulder and chest also disclosed several

nonlethal injuries inflicted by a knife. Thus, it was clear that defendants’ arsenal

anticipated knife use, and a knife was indeed used in committing the crimes.

Turning specifically to Vo’s knife use, Alice testified she watched Vo arm

himself with a knife and hide in the bathroom. Then, when Cary entered the

house, Vo deliberately held the knife to Cary’s throat. According to Cary’s

testimony, Alice told her not to scream so that Vo would not hurt them. This

sufficiently established Vo’s use of the knife not only against Cary, but also

against Alice.

Regarding Tony, Alice warned him that defendants had a knife as well as

guns. Alice’s remark was clearly based on her observation of Vo’s open use of the

knife on her mother. Thus, Vo’s knife use against Cary and Alice had the

additional direct effect of instilling fear in Tony and securing his compliance

when, later, defendants tied him up and took him upstairs. This evidence was

sufficient to establish knife use against Tony. (See People v. Wilson, supra, 44

63

Cal.4th at p. 807 [firearm use need not be strictly contemporaneous with the base

felony; “ ‘[A] jury could reasonably conclude that although defendant’s presence

with the victims was sporadic, the control and fear created by his initial firearm

display continued throughout the encounter.’ ”].)

The jury also found true the knife use enhancement in connection with the

attempted murder count involving Ellen, even though Ellen was not present at the

Wang residence. Just as the fortuity of Ellen’s absence does not lessen Vo’s

culpability for attempted murder, given the substantial evidence of his intent to kill

and his commission of an overt act, neither does such fortuity render insufficient

the evidence supporting the knife enhancement on this count. From the outset,

defendants were evidently prepared to use knives to murder Ellen and her family.

They did, in fact, use a knife to kill Su Hung. As was true in Granado, where one

of the victims was not aware the defendant was armed, to excuse Vo from the

consequence of his knife use merely because Ellen lacked actual knowledge of the

knife’s deployment “would limit the statute’s deterrent effect for little if any

discernible reason.” (Granado, supra, 49 Cal.App.4th at p. 327.)

In sum, Vo’s intentional use and display of a knife to intimidate and control

the victims who either saw the knife (Cary and Alice) or were made aware of its

use (Tony) facilitated defendants’ plan to murder the entire Wang family,

including Ellen. Accordingly, we conclude the trial court did not abuse its

discretion in refusing to grant a directed verdict of acquittal on the knife use

allegations and that sufficient evidence supports all the knife use enhancements

under former section 12022(b).

64

2. Use of Uncharged Conspiracy as Theory of Liability

Although defendants were not charged with the substantive offense of

conspiracy, the prosecutor used conspiracy as a theory of derivative liability.

Defendants challenge the use of uncharged conspiracy for this purpose.

The Attorney General contends the claim is forfeited because neither

defendant objected to the prosecutor’s use of uncharged conspiracy as a theory of

liability. Both defendants had objected to the trial court’s giving of conspiracy

instructions, but their contention was limited to the perceived insufficiency of

evidence of a conspiracy and did not assert the theory was legally impermissible.

Nonetheless, even assuming the claim has been preserved, its substance is

meritless.

“Conspiracy principles are often properly utilized in cases wherein the

crime of conspiracy is not charged in the indictment or information. In some

cases, for example, resort is had to such principles in order to render admissible

against one defendant the statements of another defendant. [Citations.] In others

evidence of conspiracy is relevant to show identity through the existence of a

common plan or design. [Citation.] In still others the prosecution properly seeks

to show through the existence of conspiracy that a defendant who was not the

direct perpetrator of the criminal offense charged aided and abetted in its

commission. [Citations.]” (People v. Durham (1969) 70 Cal.2d 171, 180-181,

fn. 7.)

Conspiracy can itself be the basis of derivative liability quite apart from

aiding and abetting principles. “It is long and firmly established that an uncharged

conspiracy may properly be used to prove criminal liability for acts of a

coconspirator. [Citations.] ‘Failure to charge conspiracy as a separate offense

does not preclude the People from proving that those substantive offenses which

65

are charged were committed in furtherance of a criminal conspiracy [citation]; nor,

it follows, does it preclude the giving of jury instructions based on a conspiracy

theory [citations].’ [Citation.]” (People v. Belmontes (1988) 45 Cal.3d 744, 788-

789.) Contrary to Hajek’s assertion, use of an uncharged conspiracy does not

violate state law, even though the statutory definition of “principals” set forth in

section 31 does not include conspirators. (People v. Valdez (2012) 55 Cal.4th 82,

149-150 (Valdez).)

In Valdez, the defendant argued that the use of an uncharged conspiracy

creates a constitutionally impermissible conclusive presumption “ ‘that a person

who engages in an uncharged conspiracy to commit a substantive offense is guilty

of the substantive offense later committed by others.’ ” (Valdez, supra, 55 Cal.4th

at p. 150.) We disagreed: “ ‘[L]ike aiding and abetting, conspiracy (as used here)

is itself a theory of liability. . . . The instructions given here did not tell the jury

that it could presume any particular element of murder, including intent, based on

proof of predicate facts. Instead, the instructions specified that, as an alternative

to finding, based on the elements of murder, that [defendant] himself committed or

aided in the crime, it could find him responsible for the crime based on his

participation in a conspiracy to commit murder. This correctly stated the law

concerning conspiracy as an alternative theory of liability. [Citations.]

Accordingly, there was no error.’ ” (Ibid.) Hajek advances the same claim, and,

for the reasons stated in Valdez, we again reject it.

Both defendants also contend the use of an uncharged conspiracy violated

due process by depriving them of notice of the charges against them. Assuming,

without deciding, the claim is not forfeited, it is meritless. “ ‘Due process of law

requires that an accused be advised of the charges against him so that he has a

reasonable opportunity to prepare and present his defense and not be taken by

66

surprise by evidence offered at his trial.’ ” (People v. Seaton (2001) 26 Cal.4th

598, 640-641.) Defendants here were so advised.

By the time the trial began, defendants were well aware the prosecutor

intended to proceed on a conspiracy theory to establish derivative liability. For

example, in opposing Vo’s motion to suppress evidence removed during a search

of his locker, the prosecutor argued that the evidence consisting of writings by Vo

and Nguyen was relevant to establish motive and a conspiracy. At the hearing on

the motion, the prosecutor repeatedly referred to conspiracy as a basis for the

admission of those documents. Additionally, defendants’ objections to the

admission of Hajek’s letters to Vo questioned whether such letters were relevant to

the prosecutor’s conspiracy theory. On this record, defendants cannot plausibly

maintain that they were surprised or unaware of this theory or unable to prepare to

defend against it. (See People v. Pike (1962) 58 Cal.2d 70, 88-89 [no “element of

surprise or unfairness” where, before trial began, defendant was “well aware” that

“the case against him was based on theories of conspiracy and aiding and

abetting”].)

Vo argues the prosecutor “used his expansive conspiracy theory as a

substitute for evidence of” Vo’s guilt. This merely repeats his sufficiency of the

evidence claims, which we have already addressed and rejected. (See ante,

pt. II.B.1.) Vo also argues that use of the conspiracy theory permitted the

admission of improper evidence against him. This is, in part, a rehash of the

severance claim, which we have also already addressed and rejected. (See ante,

pt. II.A.1.) To the extent it challenges the admission of particular pieces of

evidence, we take up those challenges below. (See post, pt. II.B.3.)

Vo asserts the trial court erred by admitting evidence of a conspiracy

without first making a finding regarding the existence and the scope of such

67

conspiracy. Because Vo’s trial counsel neither requested such a preliminary

finding nor pressed the prosecution for an offer of proof, the claim is forfeited.

Certainly, the prosecution was entitled to present evidence to establish the

elements of conspiracy without first seeking leave of court, subject, of course, to

the evidentiary rules governing admissibility. (Cf. People v. Belmontes, supra, 45

Cal.3d at p. 789 [“There being evidence supportive of all the elements of a

conspiracy, the People were entitled to proceed on that alternative theory of

liability.”].) Vo’s claim is really no more than a reprise of his sufficiency

argument, addressed above, and his assertion, addressed below, that certain

evidence was improperly admitted against him.

Vo also argues his due process rights were violated because the prosecution

was not required to prove either the existence or the scope of the uncharged

conspiracy beyond a reasonable doubt. Again, his quarrel is with the sufficiency

of the evidence and the admissibility of certain evidence against him. Even taking

his claim at face value, it is without merit.

In Valdez, the defendant similarly argued it was error for the trial court to

have failed to instruct the jury that, to convict the defendant of murder based on

conspiracy, under a theory of derivative liability, it must unanimously agree as to

the existence and scope of the conspiracy and the defendant’s participation therein

beyond a reasonable doubt. We rejected the claim. (Valdez, supra, 55 Cal.4th at

p. 153.) “Under our prior decisions, ‘[i]t is settled that as long as each juror is

convinced beyond a reasonable doubt that defendant is guilty of murder as that

offense is defined by statute, [the jurors] need not decide unanimously by which

theory he is guilty. [Citations.]’ [Citation.] ‘Not only is there no unanimity

requirement as to the theory of guilt, the individual jurors themselves need not

choose among the theories, so long as each is convinced of guilt.’ [Citation.]”

68

(Ibid.) We applied these principles to an uncharged conspiracy when used “as an

alternative theory of liability for the charged, substantive crime of murder.” (Id. at

p. 154.) Because the jurors need not unanimously agree on the theory of a

defendant’s guilt, a court may discharge its obligations by instructing on the

elements of conspiracy and the prosecution’s burden to prove the defendant’s guilt

of murder beyond a reasonable doubt. That is what the court did here.

Accordingly, we reject defendants’ claim that the prosecution’s use of an

uncharged conspiracy as a basis of derivative liability was impermissible. We

address defendants’ challenges to the conspiracy instructions below. (See post,

pt. II.B.4.d.)

3. Evidentiary Issues

a. Moriarty’s conversation with Hajek

Moriarty testified that Hajek called her the night before the murder. He

talked about the altercation he and Nguyen had had with an unnamed girl and his

fight with her a few days earlier. He also spoke of his plan to get revenge by

going to the girl’s home, killing her family in front of her, and then killing her,

while making his attack look like a robbery. Initially, Moriarty testified that in

speaking of his plan, Hajek used the word “I,” implying only he would do these

things. However, she acknowledged she had told police that Hajek talked about

going to the victim’s house with two or three others, and had so testified at the

preliminary hearing. On cross-examination by Vo’s attorney, she clarified that

when Hajek spoke of entering the house and killing the girl and her family, he

spoke only of himself and not of anyone else. She again acknowledged she had

indicated to police and at the preliminary hearing that Hajek had referred to

unnamed others in carrying out the plan, but added she did not remember using the

words attributed to her in the police interview.

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Vo argues that admission of Moriarty’s testimony violated his

confrontation rights under Crawford v. Washington (2004) 541 U.S. 36 and that it

also violated the Aranda/Bruton rule. His claims are meritless.

In Crawford, the United States Supreme Court held that “[t]estimonial

statements of witnesses absent from trial [can be] admitted only where the

declarant is unavailable, and only where the defendant has had a prior opportunity

to cross-examine.” (Crawford v. Washington, supra, 541 U.S. at p. 59, fn.

omitted; Williams v. Illinois (2012) ___ U.S ___ [132 S.Ct. 2221, 2232].) Hajek’s

conversation with Moriarty cannot be deemed testimonial within the meaning of

Crawford because it was not a conversation involving an agent of the police.

The Aranda/Bruton argument fares no better. “The Aranda/Bruton rule

addresses the situation in which ‘an out-of-court confession of one defendant . . .

incriminates not only that defendant but another defendant jointly charged.’

[Citation.] ‘The United States Supreme Court has held that, because jurors cannot

be expected to ignore one defendant’s confession that is “powerfully

incriminating” as to a second defendant when determining the latter’s guilt,

admission of such a confession at a joint trial generally violates the confrontation

rights of the nondeclarant.’ ” (People v. Brown (2003) 31 Cal.4th 518, 537.) In

this case, however, Hajek’s statements to Moriarty were not “powerfully

incriminating” as to Vo. Instead, they reflected vague statements about unnamed

individuals whom Hajek might enlist in an event that had not yet occurred.

b. Defendants’ jailhouse conversation

After defendants were arrested and taken into custody, they were placed

into a room together and their conversation was secretly tape-recorded. The

prosecution prepared a transcript of the recording. Prior to trial, counsel for both

defendants objected to admission of both the tape and the transcript on the ground

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that the tape was inaudible and the transcript misleading. Hajek argued the tape’s

inaudibility rendered it irrelevant and inadmissible under Evidence Code section

352. Hajek added that if the court were inclined to admit the tape, it should admit

only the tape and not the transcript. Vo argued that providing the jury with so

inaudible a tape would lead to speculation. The trial court ruled the tape

admissible, but not the transcript, because the latter was misleading.

Before the tape was played, both defense counsel stipulated that the court

reporter need not transcribe it. Detective Walter Robinson authenticated the tape.

Robinson acknowledged the overall quality of the tape was “fairly poor,” noting

that a “good deal” of defendants’ conversation was whispered and that parts of the

tape were inaudible and unintelligible. He testified further that “maybe 50 to 75

percent” of the conversation could be heard on the tape. He identified the

defendants’ two voices and acknowledged that, in general, Hajek spoke at a

normal level, while Vo whispered.

During guilt phase deliberations, the jury requested a transcript of the

conversation, which the court denied because the transcript was not in evidence.

At the hearing on defendants’ motion for a new trial, one of the jurors testified the

jury listened to the tape during guilt phase deliberations “on a very poor tape

recorder.” During the penalty phase, the jurors listened to the tape on a different

tape player.

Hajek argues that admission of the tape constituted an abuse of discretion,

because its poor quality rendered it unreliable, irrelevant or, if relevant, more

prejudicial than probative. (Evid. Code, §§ 210, 350, 352.) He also maintains that

its admission violated his federal constitutional rights to due process and

heightened reliability in capital cases. As support, Hajek cites the trial court’s

exclusion of the transcript prepared by the prosecution. He also relies on two

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jurors’ testimony at the hearing on defendants’ new trial motions that during

penalty phase deliberations some jurors heard statements that Hajek contends were

not on the tape.

Evidence Code section 350 provides that “[n]o evidence is admissible

except relevant evidence.” “ ‘Relevant evidence’ means evidence . . . having any

tendency in reason to prove or disprove any disputed fact that is of consequence to

the determination of the action.” (Evid. Code, § 210.) Of course, a trial court may

“exclude evidence if its probative value is substantially outweighed by the

probability that its admission will . . . create substantial danger of undue prejudice

. . . .” (Evid. Code, § 352.) Questions regarding the admissibility of evidence are

committed to the trial court’s sound discretion. (People v. Homick, supra, 55

Cal.4th at p. 859.)

“[A] tape recording may be admissible even if substantial portions of it are

unintelligible.” (People v. Siripongs (1988) 45 Cal.3d 548, 574.) In light of the

broad statutory definition of relevance, and the considerable discretion the trial

court exercises in passing on questions of admissibility, we agree with People v.

Polk (1996) 47 Cal.App.4th 944 that “ ‘ “[t]o be admissible, tape recordings need

not be completely intelligible for the entire conversation as long as enough is

intelligible to be relevant without creating an inference of speculation or

unfairness.” [Citations.]’ [Citation.] [¶] Thus, a partially unintelligible tape is

admissible unless the audible portions of the tape are so incomplete the tape’s

relevance is destroyed.” (Id. at p. 952.)

Our review of the tape confirms Detective Robinson’s testimony that it is

generally of poor quality and that much of the conversation is whispered and

therefore inaudible or unintelligible. Nonetheless, we cannot conclude the quality

of the tape is so compromised as to be rendered completely irrelevant. Those

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portions of the tape that are audible contain information generally corroborative of

the prosecution’s guilt phase case, mostly through Hajek’s words. For example,

Hajek states that he would have continued to flee from police had he not heard the

officer who was pursuing him prepare to fire his gun. Hajek also refers to the fact

that the victim was strangled and then had her throat slashed. Hajek talks about

having seen Ellen at the jail and expresses his anger at her.

Hajek’s intention to flee the scene, his knowledge of the manner in which

the victim was killed, and his continuing anger toward Ellen are relevant to the

issue of his guilt, because they show consciousness of guilt (flight), participation

in the murder (knowledge of how the victim was killed), and support for the

prosecutor’s theory of his motive (anger toward Ellen.) Similarly, while both

defendants discuss the charges they are likely to face (kidnapping and murder),

neither one at the same time denies culpability or expresses surprise or dismay at

those charges. Regarding Vo, the jury could reasonably have concluded that Vo’s

decision to whisper during the conversation reflected a desire not to be overheard,

supporting a conclusion that he was making incriminating statements.

While the nature of the recording may have made the evidence less

probative than if the entire conversation had been clearly captured, the court did

not abuse its discretion in determining that the audible portions nonetheless were

relevant and admissible. (People v. Roldan, supra, 35 Cal.4th at p. 688 [“A trial

court will not be found to have abused its discretion unless it ‘exercised its

discretion in an arbitrary, capricious, or patently absurd manner that results in a

manifest miscarriage of justice.’ ”].) The fact that the trial court excluded the

prosecutor’s transcript because it deemed the transcript misleading does not

suggest that the court believed the tape itself was without evidentiary value. The

court’s concern instead focused on the debatable accuracy of the transcript, a

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concern shared by Hajek’s trial counsel who, while opposing admission of either

tape or transcript, preferred the tape alone be admitted. In addition, the posttrial

controversy over what the jurors heard on the tape during their penalty phase

deliberations has no bearing on the trial court’s initial ruling since, obviously, that

information was not before it. Finally, Hajek fails to demonstrate that the risk of

undue prejudice posed by the recording’s admission substantially outweighed its

probative value, such that exclusion under Evidence Code section 352 was

required. Accordingly, we conclude the trial court did not abuse its discretion in

admitting the tape.

Vo also argues that admission of the tape violated the Aranda/Bruton rule.

Because Vo failed to make any such objection below, the Attorney General

correctly notes the claim is forfeited.21 In any event, Vo fails to identify any

statements on the tape that would implicate that rule. Citing section 190.9’s

requirement that all proceedings in capital cases be on the record, Vo additionally

argues that the trial court erred by failing to direct the court reporter to transcribe

the tape when it was played in court. But both defense counsel stipulated that the

tape need not be transcribed, and the claim is therefore forfeited. (Houston, supra,

54 Cal.4th at p. 1213.) In any event, “it is sufficient [for purposes of section

190.9] that the record contains [this] recording[] and defendant had access to [it].”

(Id. at p. 1214.)

In sum, we conclude the admission of the tape was not an abuse of

discretion and did not violate defendants’ constitutional rights.

21 In response to the Attorney General’s forfeiture argument, Vo inaccurately

cites an objection he made to potential questioning by Hajek’s counsel of

Detective Robinson about the interview Robinson conducted with Hajek prior to

the taped conversation.

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c. Hajek’s alleged interest in Satanism

Exhibit No. 64 was a letter that Hajek wrote to Vo while in custody, and it

included the following remarks: “The devil made me do it! Satan [drawing of a

pentangle]. I’m still trying to get a Satanic Bible in here.” During his

examination of Nguyen, the prosecutor asked her a series of questions about

Hajek’s interest in Satanism. Both Hajek and Vo objected to the prosecutor’s

initial question, “Did Mr. Hajek ever tell you about his interest in Satanism or

Satanic things?” Hajek objected on relevance grounds, and Vo on hearsay

grounds. Hajek withdrew his objection when the prosecutor argued the question

was relevant to Hajek’s mental state and motivation. With respect to Vo’s

relevance objection, the court instructed the jury, “it is a statement by Mr. Hajek

and it does not flop over to Mr. Vo.”

Hajek objected a second time when the prosecutor asked if Hajek was

interested in Satanic rituals, and the objection — “That assumes this young

woman even knows what a Satanic ritual is” — was sustained. The trial court also

sustained Hajek’s objection when the prosecutor asked Nguyen, “Ever hear him

say he wanted to kill someone as part of his Satanic beliefs?” The court, however,

overruled the objection to the prosecutor’s next question, “Did he ever say he

would kill the people in this case, Ellen’s grandmother, for this reason?” When

Nguyen answered, “No,” the prosecutor moved on to other subjects. Vo joined the

prosecutor in seeking to have exhibit No. 64 admitted, and the trial court admitted

the letter over Hajek’s objection.

On appeal, Hajek contends the admission of Nguyen’s testimony and

exhibit No. 64 was prejudicial error because evidence regarding Hajek’s interest in

Satanism was irrelevant or, if relevant, unduly prejudicial under Evidence Code

section 352. He further argues that the evidence should have been barred under

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Evidence Code section 1101, subdivision (a), which provides that evidence of a

person’s character or trait of his or her character ordinarily “is inadmissible when

offered to prove his or her conduct on a specified occasion.” Finally, Hajek

asserts the admission of this evidence violated his Eighth Amendment interest in

heightened reliability in capital cases. We reject these contentions for the reasons

below.

Here, a rational jury could have viewed Hajek’s statement in exhibit No. 64

— “The devil made me do it” — as an admission of guilt, contrary to his

statement to police in which he denied all responsibility. It was therefore relevant

and admissible on that point, and its admission was not error.

With respect to Hajek’s references to Satan and the Satanic Bible, even

assuming those statements should have been excluded, any error was harmless.

These brief references in a lengthy letter pale in comparison with the

overwhelming evidence of Hajek’s guilt. As to his claim that admission of such

evidence violated Evidence Code section 1101, subdivision (a), Hajek has

forfeited that claim by failing to raise it at trial.

For the same reason, Hajek was not prejudiced when the trial court

permitted the prosecutor to explore Hajek’s interest in Satanism with Nguyen, to

determine whether Hajek may have made similar remarks to her, given their close

relationship both before and after the offenses. Two of Hajek’s objections to

specific questions by the prosecutor to Nguyen were sustained, and he withdrew

another. As to the one question to which Hajek unsuccessfully objected, about

whether Hajek ever told Nguyen he had killed the victim because of his interest in

Satanism, Nguyen answered no, and the prosecutor moved on. Thus, despite

Hajek’s attempts on appeal to make it appear as if his alleged interest in Satanism

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was a centerpiece of the prosecution’s case, these references were brief and

scattered.22

Vo contends the evidence of Hajek’s interest in Satanism was bad character

evidence that was admitted in violation of Evidence Code section 1101, which

tarred him by association. The argument is forfeited as Vo’s counsel failed to

object on this ground below. (People v. Kennedy (2005) 36 Cal.4th 595, 612

[“When an objection is made to proposed evidence, the specific ground of the

objection must be stated.”].) Moreover, as to exhibit No. 64, Vo’s counsel not

only failed to object on any ground but joined the prosecutor in seeking to have

the letter admitted. Finally, as to Nguyen’s testimony, the trial court instructed the

jury that that evidence applied only to Hajek and did not “flop over” to Vo. Vo

complains the trial court’s instruction was inadequate, but the onus was on Vo’s

counsel to have requested a clarifying instruction in that case and, having failed to

do so, he may not complain about it on appeal. (People v. Homick, supra, 55

Cal.4th at p. 873.) In any event, given that the references were not prejudicial to

Hajek directly, they could not have indirectly prejudiced Vo.

d. Other crimes evidence

Over Hajek’s objections, Vo was permitted to call James O’Brien and

Douglas Vander Esch as part of his defense that Hajek had lost control at the

crime scene and killed the victim without Vo’s knowledge. O’Brien testified to an

incident that occurred when he and Hajek were coworkers at a pizza parlor. At the

end of their shifts, Hajek, for no apparent reason, hit O’Brien in the face, breaking

his nose. Vander Esch, a correctional officer, testified that, when he declined

22 Hajek also complains that the prosecutor referred to the letter in his closing

argument. Hajek failed to object to the argument, and any issue as to its propriety

is forfeited. (People v. Ledesma, supra, 39 Cal.4th at p. 726.)

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Hajek’s request to talk to a sergeant, Hajek went on a rampage, destroying jail

property. On appeal, Hajek contends the admission of this testimony violated

Evidence Code section 1101’s ban on bad character evidence and constituted an

abuse of discretion under Evidence Code section 352. We reject these claims.

Hajek himself had already introduced evidence of these incidents and other

criminal activity on his part in furtherance of his mental defect defense. Hajek’s

mother testified he was “explosive, angry” and “easily frustrated,” and had been

arrested for indecent exposure and separately for possession of nunchucks. Both

she and Hajek’s former probation officer testified that Hajek had fought with a

coworker at the pizza parlor, breaking the coworker’s nose. Hajek’s expert

witness, Dr. Minagawa, testified regarding an incident in which Hajek destroyed

jail property. Indeed, in lodging her objection to Vo’s intention to call O’Brien

and Vander Esch, Hajek’s attorney argued “the jury has heard extensive testimony

[about the two incidents] and it’s clear that Mr. Hajek and I are not disputing those

facts.”

Thus, Vo’s evidence did no more than echo Hajek’s defense, and it was

introduced for essentially the same purpose: To show that Hajek was acting under

the influence of a mental defect or disease when the crimes occurred.

Accordingly, we find no error under either Evidence Code section 1101 or

Evidence Code section 352.

e. Testimony of Norman Leung

Hajek contends the trial court abused its discretion when it declined to

conduct an Evidence Code section 402 hearing before permitting the prosecutor to

call Norman Leung, a friend of Hajek’s. He also contends Leung’s testimony

should have been excluded under Evidence Code section 352. We find no abuse

of discretion under either provision of the Evidence Code.

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i. Background

The prosecutor called Leung because three of Hajek’s jailhouse letters

referred to Leung in a manner that, the prosecutor argued, suggested Hajek had

attempted to enlist Leung into the conspiracy to kill Ellen and her family. The

prosecutor argued that the letters showed the plot was formed before defendants

went to the Wang residence. Both defendants objected to the admission of the

letters, Hajek essentially on relevance grounds and Vo on hearsay grounds.

Hajek’s counsel also objected to the prosecutor’s intention to call Leung to the

stand because, she argued, the prosecution got “nothing” from its earlier

interviews with Leung. She argued that “just by asking [Leung] were you

threatened by [Hajek] . . . is inherently prejudicial.” Vo’s counsel similarly

objected and requested that the trial court conduct an Evidence Code section 402

hearing to test the admissibility of the testimony before allowing the prosecutor to

call Leung as a witness at trial. The trial court rejected the request.

Leung was called to the stand. He testified that he was a good friend of

Hajek’s and a friend of Vo’s, and that Hajek, Vo, and Nguyen were friends with

each other. Leung professed lack of memory when asked about any matter related

to the crimes. In response to the prosecutor’s question about whether Leung had

gone into hiding after the crimes because he was afraid Hajek would harm him,

Leung testified, “It may have happened . . . . I can’t remember it.”

ii. Discussion

Although a prosecutor commits misconduct by intentionally eliciting

inadmissible evidence, “ ‘ “merely eliciting evidence is not misconduct.” ’ ”

(People v. Mills (2010) 48 Cal.4th 158, 199.)

Here, the prosecutor had a viable theory of the relevance and probative

value of Leung’s testimony, i.e., it might help establish an existing conspiracy to

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kill Ellen and her family to show that Hajek attempted to recruit Leung to join that

conspiracy. Hajek’s objection to Leung’s testimony was that he was likely to be a

nonresponsive or hostile witness, based on Leung’s preliminary hearing testimony

and interviews with the prosecutor’s investigators. Be that as it may, absent a

showing that the prosecutor was operating in bad faith, the prosecutor was entitled

to call the witness for whatever value he could derive from his testimony,

including his demeanor on the stand. (People v. Scott (2011) 52 Cal.4th 452, 493

[“a witness’s ‘demeanor is always relevant to credibility’ ”]; Evid. Code, § 780,

subd.(a).) In this vein, it is clear, even from the cold transcript, that the jury could

reasonably doubt Leung’s credibility regarding his professed lack of memory as to

whether Hajek solicited him to join the conspiracy or whether he feared Hajek.

Moreover, to the extent defendants believed the prosecutor’s questions

regarding those topics were improper, they could have objected, but for the most

part they did not. Thus, they have forfeited any complaint on appeal regarding the

propriety of those questions. In sum, the record establishes that the prosecutor

called a witness he believed would be helpful to his case, and that the prosecutor’s

questions were asked in a good faith belief that the witness had knowledge of

those topics. (Cf. People v. Pearson (2013) 56 Cal.4th 393, 434 [“A prosecutor

may not ask questions of a witness suggesting facts harmful to a defendant without

a good faith belief that such facts exist.”].)

Finally, the trial court did not abuse its discretion by declining to conduct

an Evidence Code section 402 hearing based on defense counsels’ concern that

Leung would be a nonresponsive witness. (People v. Williams (1997) 16 Cal.4th

153, 196 [A trial court’s “broad discretion” to determine the admissibility of

evidence extends to “whether or not to decide [such] questions under Evidence

Code section 402”].) Nor did the court abuse its discretion by declining to exclude

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Leung’s testimony under the provisions of Evidence Code section 352. (People v.

Lancaster (2007) 41 Cal.4th 50, 83 [“courts have broad discretion to weigh the

prejudicial impact of testimony against its probative value”].)

f. Testimony of McRobin Vo

Hajek contends the trial court erroneously allowed the prosecution to

question Vo’s brother, McRobin Vo, about Hajek’s unresponsive answers to

McRobin Vo’s questions regarding the crimes when he visited Hajek in jail.

Hajek asserts that, in doing so, the trial court permitted the prosecutor to violate

Doyle v. Ohio (1976) 426 U.S. 610. Hajek also asserts the testimony should have

been excluded as unduly prejudicial pursuant to Evidence Cod

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