# People v. Hajek and Vo

> California Supreme Court · May 5, 2014 · 58 Cal. 4th 1144

URL: https://www.frixlaw.com/law-library/cases/2672556

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. STEPHEN EDWARD HAJEK AND LOI TAN VO, Defendants and Appellants
- **Court:** California Supreme Court
- **Decided:** May 5, 2014
- **Citations:** 58 Cal. 4th 1144; 171 Cal. Rptr. 3d 234; 324 P.3d 88; 2014 Cal. LEXIS 3133; 2014 WL 3630750
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Baxter, Kennard
- **Cited by:** 405 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by People v. Rangel, 62 Cal. 4th 1192 (2016).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2672556

## Opinion text

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.

2
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.

3
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

4
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

5
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

6
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.

7
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

8
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.

9
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

10
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

11
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

12
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

13
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

14
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

15
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

16
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

17
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
suff

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2672556. Public record. Not legal advice.