People v. Chhoun

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

RUN PETER CHHOUN,

Defendant and Appellant.

S084996

San Bernardino County Superior Court

FSB08658

February 11, 2021

Justice Corrigan authored the opinion of the Court, in which

Chief Justice Cantil-Sakauye and Justices Liu, Cuéllar,

Kruger, Groban, and Kim* concurred.

*

Associate Justice of the Court of Appeal, Second Appellate

District, Division Five, assigned by the Chief Justice pursuant

to article VI, section 6 of the California Constitution.

PEOPLE v. CHHOUN

S084996

Opinion of the Court by Corrigan, J.

During a home invasion robbery, defendant Run Peter

Chhoun and fellow gang members killed the entire Nguyen

family except three-year-old Dennis. The child was wounded

and left alone overnight with the bodies of his parents and

siblings. Defendant was tried with alleged accomplice Samreth

Pan. The court dismissed all charges against Pan at the close of

the People’s case. Defendant was convicted of five counts of

murder, one count of residential burglary, and three counts of

residential robbery with enhancements for personal use of a

firearm.1 He was acquitted of the attempted murder of Dennis.

The jury found true special circumstances of murder during

burglary and robbery and the murder of multiple victims.2 It

set the penalty at death. We affirm the judgment.

1

Penal Code sections 187, subdivision (a), 459, 211,

12022.5, subdivision (a). Although the jury found the personal

use allegation true for the residential burglary and robbery

charges, it determined the allegation had not been proven for

the murder charges.

2

Penal Code section 190.2, subdivision (a)(17) and (a)(3).

All further statutory references are to the Penal Code unless

otherwise specified.

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Opinion of the Court by Corrigan, J.

I. BACKGROUND

A. Guilt Phase

In the summer of 1995, defendant (nicknamed “Chaka”)

and Pan (nicknamed “Rusty”) were “shot callers” and “O.G.s”3 in

the Tiny Rascals Gang (TRG). Vinh Tran (“Scrappy”) and

William Evans were junior members. Although not officially a

member of the gang, Nhung Tran (“Karol”) “took care of” young

girls who associated with TRG members. All five were originally

charged together. Because Scrappy and Evans were juveniles,

however, their cases were later severed, as was the case against

Karol.4 Evans and Karol testified at trial pursuant to plea

agreements. 5

3

The term “O.G.,” which stands for “original gangster,” is

generally used as a term of respect for older or veteran gang

members. In Asian gangs, the label is awarded based on

experience level rather than age. Even young gang members

may rise to leadership if they accrue sufficient criminal

experience. O.G.s typically advise younger members how to

plan and carry out crimes, and how to evade detection. A “shot

caller” is a respected gang member who plans how a specific

crime will be committed.

4

Although they share the same last name, Vinh (Scrappy)

and Nhung (Karol) Tran are not related. To avoid confusion, we

refer to them as “Scrappy” and “Karol,” as they were

consistently referred to in the trial court.

5

Karol pled guilty to five counts of second degree murder,

with a sentence of up to 50 years in prison. Evans pled guilty to

five counts of first degree murder, with a sentence of 25 years to

life in prison. Evans’s plea agreement also encompassed

charges in a Sacramento case. (See post, at pp. 6–8.) In

exchange for pleading guilty to the Sacramento crimes and

testifying truthfully in both cases, Evans’s 25-year-to-life

sentence in the Sacramento case could be served concurrently

with his sentence for these San Bernardino murders.

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Opinion of the Court by Corrigan, J.

1. Elm Street Home Invasion Robbery and Murders

In late July, defendant asked Karol if she knew a good

place to rob. Karol described a family in San Bernardino who

were likely to have cash and jewelry in the house. She believed

a husband and wife lived there with a child and grandmother.

Karol said the family would be a good target because they were

Vietnamese and, she believed, would not call the police.

Although Karol did not want to be part of the robbery

because her parents lived nearby, defendant ultimately

persuaded her to join him. He also recruited Evans and

Scrappy, and the crime took place on August 9. Defendant had

a Glock nine-millimeter pistol but wanted a second gun. He

drove the group to Pan’s house. He told Pan they were on their

way to commit a robbery and asked for Pan’s gun. Pan said he

did not want to be involved but provided a Glock pistol, which

defendant handed to Scrappy.

Defendant drove to the target house on Elm Street. Karol

was to approach the front door because she knew the residents.

While she knocked, Scrappy stood behind a bush, armed with

Pan’s gun. When Henry Nguyen6 answered the door, Scrappy

rushed inside, followed by defendant and Evans. Karol fled to

defendant’s red Honda, which he had parked outside.

The Nguyens did not understand English, and Scrappy

was the only robber who spoke Vietnamese. Defendant gave

orders that Scrappy translated to the family. Initially, Henry,

his wife, Trinh Tran, and their 13-year-old daughter Doan were

the only family members in the living room. Scrappy appeared

6

To avoid confusion, we refer to members of the Nguyen

family by their first names.

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PEOPLE v. CHHOUN

Opinion of the Court by Corrigan, J.

with three children from another room: 11-year-old Daniel, 10-

year-old David, and 3-year-old Dennis. Everyone was ordered

to get on the floor. Evans searched the house while Scrappy

demanded cash. Henry said they had none, but when defendant

threatened Dennis with a large knife Henry turned over about

$2,000. When Daniel volunteered that he had some money in

his bedroom, Evans followed him into a hallway. Evans heard

a gunshot and returned to the living room, to see Henry lying

facedown. Defendant stood less than a foot away holding a gun.

At defendant’s order, Evans left the house and sat in the car

with Karol. Both reported hearing several gunshots from inside

the house. Karol estimated the robbers had been in the house

about 15 minutes before the first shots were fired. A neighbor

heard several gunshots and saw a car drive away.

Defendant drove the group to Karol’s house. In the car,

defendant remarked, “It must have been the wrong house,”

because there was no grandmother and the family did not have

as much money as he had expected. He said five people had been

killed. He handed Scrappy a gun, directing him to unload it.

Later, he told Karol he had held “the little boy” at knifepoint

trying to get more money from the mother. Pan was waiting at

Karol’s house, and defendant returned his pistol. Learning of

the murders, Pan became extremely angry and called the group

stupid. Defendant doled out cash to everyone but Pan. They

also divided some of the Nguyens’ jewelry. Defendant told

everyone to “act like nothing’s happened,” and they spent the

rest of the evening at a pool hall. Defendant told other gang

members he had done some of the shooting at the Elm Street

house. He was also overheard saying that “Scrappy went crazy

and shot a kid.”

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The next morning, Henry’s sister called the Nguyen home.

The phone rang for a long time. Dennis finally answered and

said, “Mommy’s dead.” Karol’s mother went to the house and

heard Dennis crying inside. He finally opened the door and then

sat next to his mother’s body. Henry, Trinh, and David lay dead

on the living room floor. Toothpaste had been smeared around

Trinh’s nostrils, mouth, and eyes, the tube discarded near her

body. Another neighbor found Doan and Daniel lying dead in a

bedroom. All had been shot repeatedly. Dennis was holding his

brother’s head and “just crying, screaming.”

Dennis had been shot in the hand. Henry was shot in the

head and neck. One shot was fired with the gun’s muzzle placed

directly against his skull. He was also shot in the chest at close

range while lying on the floor. Four superficial cuts on the back

of his neck had been inflicted by a sharp object, like a knifepoint.

Trinh was shot once in the thigh and twice in the head, at very

close range. Two of her teeth were detached by the force of the

bullets. The oldest child, Doan, was shot in the leg, chest, and

head. Another bullet pierced a hand that she had held up to

protect her face. Daniel was shot in the lower leg and chest.

David was shot twice in the chest and once in the back of the

head.

Several nine-millimeter cartridge cases and spent bullets

were found in the living room. Trinh’s emptied purse was found

in the hallway. A meat cleaver rested atop the stereo cabinet.

More casings and rounds were recovered near the victims in a

bedroom. Fourteen of the fired casings were Winchester, and

one was S&B brand. All were fired from the same Glock nine-

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millimeter pistol.7 No fingerprints matching the gang members

were found in the house, but a latex glove was discarded in the

backyard.

Shortly after the crimes, defendant told Jonathan Ibarra

that he had committed the robbery. He said five people were

killed but “somebody fucked up in the house and one got away.”

He shot that one in the arm. Ibarra had seen both defendant

and Pan with nine-millimeter Glock pistols around the time of

the murders. Defendant later told a jail inmate that Scrappy

had squirted toothpaste in a woman’s face during the robbery.

He said it was poison and ordered the family to “[t]ell him where

the fuckin’ money is or she’s going to die.”

2. Sacramento Home Invasion Murders

Defendant and other TRG members were linked to a home

invasion incident in Sacramento almost two weeks before the

Elm Street crimes. Jurors were admonished that the

Sacramento evidence was admitted for a limited purpose to

show “a common scheme, motive, or knowledge” bearing upon

the intent of defendant and Pan to commit the Elm Street

murders.

Defendant, Pan, Scrappy, and Evans drove to Sacramento

and met with other TRG members to plan a robbery. Bunjun

Chhinkhathork (nicknamed “Puppet”) suggested robbing an

apartment where the owners sold cigarettes and other items.

On the evening of July 27, 1995, defendant drove to a park then

7

After the evidence was presented in the guilt phase,

another ballistics examination determined one bullet had been

fired by a different gun, which was also a Glock nine-millimeter.

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led Pan and Evans through a fence to the residence. He told

Chhinkhathork to stay in the car as the getaway driver.

Quyen Luu and her husband, Hung Dieu Le, operated a

small store in their home. Their 17-year-old daughter Amie was

sitting on the stairs of the building when defendant, Pan, and

Evans approached. One pointed a gun at her and gestured for

her to follow. Instead, she yelled for her mother to close the door

and ran upstairs to a neighbor’s apartment, where her brother

Vincent and sister Mei were visiting. The Le family was just

finishing dinner when a robber entered. He struggled with

Quyen, shooting her in the leg, then shot Hung and his father,

Nghiep Thich Le, several times. The parties stipulated that 47-

year-old Hung died of a gunshot to the chest, and 73-year-old

Nghiep was killed by a shot to the head.

Evans testified that defendant went into the apartment

alone. When the three returned to the car, Chhinkhathork

drove away. Defendant said he shot “the lady” because she tried

to grab him. He also shot a man who had tried to hit him with

a chair. He later joked to Karol about the “stupid guy” who

thought he could “stop a bullet with a chair.” After the incident,

defendant drove Evans and other TRG members back to San

Bernardino. They acquired no money in the attack.

None of the survivors could identify the attackers, but all

said only one man held a gun and did the shooting. About an

hour before the robbery, a different man had come to the

apartment, bought candy, then joined the eventual shooter.

They drove off together in a Honda Accord with a damaged front

fender. The car, registered to Pan’s mother, was recovered with

live nine-millimeter rounds in the trunk. All shell casings

recovered from the apartment had been fired by the same Glock

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nine-millimeter pistol. It was a different gun from the one used

in the Elm Street killings.

3. Investigation

A detective tried to interview Dennis in the emergency

room, but the child was too upset to answer questions. The

following week, assisted by a child psychologist, police were able

to obtain a statement. Dennis said his father answered a knock

at the door and three men entered. One put a gun to his father’s

head and demanded money. Another took necklaces from

Dennis and his mother. Everyone was ordered to “get down.”

His father was shot in the head, and one of the men also shot

Dennis in the hand. The men left by a rear door. Dennis

thought the robbers all had black handguns. They did not wear

masks.

Shortly after the Elm Street murders, defendant visited

his girlfriend in Seattle. Evans and Scrappy joined him.

Defendant needed to borrow gas money for the drive home and

produced a jade pendant to be held as collateral. The necklace

was later recovered and belonged to Trinh, who had been

wearing it at the time of the robbery.

Defendant, Evans, and Scrappy left Seattle, stopping in

Sacramento, where they were arrested. A Glock nine-millimeter

shell casing was recovered from defendant’s car and linked to

the gun used at Elm Street. Defendant denied involvement in

those murders. As to the Sacramento crimes, he admitted

telling a girl outside the home to “shut up,” but claimed he had

stayed outside the apartment and ran away when he heard

gunshots. Pan told the police a similar story.

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4. Expert Testimony

Sergeant Marcus Frank of the Westminster Police

Department testified as an expert on Southeast Asian gangs.

He described the gangs as loosely organized, with leadership

roles given to those with the most criminal experience. To

become an O.G. or shot caller, members must have committed

certain felonies. Unlike western gangs, Asian gangs do not

claim a geographic territory and tend to be highly mobile. TRG

had over 1,000 members nationwide, with nearly 800 of them in

California, ranging in age from 11 to 25. In Southern California,

about half its members are Vietnamese and half Cambodian.

Females are limited to supporting roles. Only the males are

allowed to hold guns and commit robberies or car thefts.

Home invasion robberies are a hallmark of Asian street

gangs. In the late 1970s, Vietnamese gangs in Orange County

developed the practice, which had previously been rare. These

are complex crimes, with specific jobs typically assigned to

different members. The gangs frequently target Asian families.

Because valuable jewelry is a symbol of the family’s wealth and

community standing, jewelry is often kept at home, where it can

be easily accessed. Many in the Southeast Asian community are

reluctant to cooperate with police. The gangs understand this

and know how to intimidate victims to hinder investigations.

Guns are often used to terrorize victims but, while threats are

common, it is unusual for home invasion robberies to result in

murder. Typically, gang members manipulate the most

vulnerable victim, assaulting the youngest or the oldest family

member until someone discloses where money and jewelry are

kept. A nonfatal shot may be fired to secure group compliance.

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B. Penalty Phase

1. Aggravating Evidence

In the penalty phase, the prosecution offered more

evidence about the Sacramento incident along with defendant’s

additional murders and violent behavior in custody.

a. Additional Sacramento Evidence

A medical examiner testified based on autopsy reports and

photographs that 47-year-old Hung Le died from a single

gunshot to the chest, fired at “apparently distant range.” He

would have died quickly. The second victim, 73-year-old Nghiep

Le, was shot in the arm and directly in the face, with the bullet

entering through the upper lip.

b. Spokane Home Invasion Robbery and Murders

A little over two weeks before the Sacramento murders,

defendant committed another home invasion robbery with

murders in Spokane, Washington. Police interviewed one of the

survivors, four-and-a-half-year-old Joe Hagan, Jr. Portions of

his account were read to the jury. Joe said that when his mother

opened the door the robbers entered with a knife and a gun.

They tied up his parents and pushed them to the floor. The

robbers cut both his parents on the face or neck. Joe heard

gunshots but was afraid and covered his head with a pillow. He

ran to his father and tried to wake him and then held his sister

on the couch until the next morning, when he went to alert the

neighbors. The robbers took jewelry from him and his sister

before they started hurting his parents. Shown a photo array,

Joe immediately pointed to defendant, saying he was positive it

was the person who had hurt his dad. Defendant was the larger

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of the two attackers. About a year later, Joe identified a

photograph of Giao Ly as the second robber.8

Spokane police responded around 7:30 the next morning

to find the bodies of 27-year-old Johnny Hagan, Jr., and 23-year-

old Thi Hong Nga Pham. Pham’s hands were tied with phone

cord, and speaker wire was wrapped around her neck. She was

shot in the head, face, and chest. The face and the chest shots

came from close range. Pham’s jaw was broken in two places;

she had also been cut several times in the face and neck. A

wedding ring and engagement ring were found inside her

mouth. Hagan had also been bound with phone cord and

speaker wire. He was shot in the ear, at the base of the skull,

and through the back of the head. Two shots were fired from

only an inch or two away. Hagan had bruising and a cut across

the front of his neck. Officers found a bloody knife on a counter

and several shell casings from a .45-caliber automatic near the

bodies. Giao Ly’s palm print was found on a kitchen cupboard,

and defendant’s fingerprint was lifted from inside the

apartment door. Defendant denied ever being in the residence

and could not explain why his fingerprint was found there.

Evans recalled seeing a .45-caliber gun at defendant’s house.

Defendant’s girlfriend, Champa Onkhamdy, testified

defendant visited her in Portland in early July 1995. They drove

to Spokane with Ly, whom she knew as “Sandman,” and

Kunthea Sar, also known as “Precious.” The women stayed at

an apartment while defendant and Ly went out. The men

returned with jewelry and cash, which they divided among

8

When shown the photographic lineups again during trial,

Joe could not recall which photos he had selected and could no

longer identify defendant or Ly.

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themselves and one or two others. A police officer testified that

Onkhamdy reported hearing the men discuss a murder. She

disavowed the statement at trial, however, saying the men were

speaking Cambodian, a language she did not understand.

Before defendant flew back to San Bernardino, he gave

Onkhamdy five rings and a bracelet. Hagan’s mother identified

one ring as her son’s and the bracelet as her grandson’s.

c. Drive-by Shootings

i. Bunlort Bun

On August 6, 1995, defendant and other TRG members

decided to drive around San Bernardino looking for members of

the Oriental Boys, a rival street gang. Defendant gave Evans a

gun and followed two men in a red Toyota. The driver, later

identified as Bunlort Bun, let the passenger out and sped away.

Defendant gave chase while Pan and Evans took turns shooting

at the car until it swerved to a stop. Defendant pulled up next

to the car. Seeing Bun slumped over, he told Pan and Evans to

make sure he was dead. They said they were out of bullets, so

defendant handed Pan another ammunition clip. Pan shot Bun

three times.

Afterward, either defendant or Pan told Karol that they

had seen “Bones,” an Oriental Boy gang member who had

previously shot 25 rounds at the home of Pan’s mother.

Defendant said they followed Bones and shot him. At

defendant’s urging, Karol and others visited the murder scene.

When they reported back that there were many police cars

there, defendant cheered and joked that they had “drained a

whole magazine” into the victim. The 32 cartridge cases found

at the scene had been fired from the same two guns used in the

Elm Street and Sacramento shootings.

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The passenger who had been in Bun’s car testified that he

was a member of the Oriental Boys gang, but Bun was not. A

different member of the Oriental Boys was known as “Bones.”

Bun was shot five times, with three fatal wounds to the chest

and abdomen. The downward trajectory of the bullets was

consistent with shots fired into a slumped-over body.

ii. Miguel Avina Vargas

On August 8, 1995, two days after Bun’s shooting and the

day before the Elm Street murders, defendant was driving in

Pomona. Pan rode in front, with Sar and Diep Tran (also called

“Giggles”) in the back. When they saw a man in a white pickup

truck, defendant made a U-turn, drove at the truck, and pulled

a gun. Pan told the women to duck. Defendant and/or Pan fired

several shots at the truck until it hit a curb and stopped. Sar

later told Karol, “Oh, man, we just shot up a Mexican for

throwing up [a] sign.”

The truck’s driver left the scene. The passenger, Miguel

Avina Vargas, died of massive internal bleeding from a bullet to

the heart. Ten cartridge casings were recovered from the area.

All had been fired from one of the guns used in the Elm Street,

Sacramento, and Bun shootings.

d. In-custody Behavior

In May 1996, defendant became angry with a jail deputy

who denied him “tier time” outside his cell after lights out. He

kicked his cell door and yelled for several minutes, threatening

to kill the deputy and his family. The conflict continued into the

night. When deputies entered his cell in the morning, they

found defendant armed with a six-inch stainless steel shank.

Defendant then refused to leave his cell for court. He poured

shampoo and toilet water onto the cell floor, urging the deputies

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to come and get him. He was forcibly removed in a violent

altercation. A second shank was found hidden in the cell, along

with a piece of braided cord that could be used as a garrote.

In December 1998, shortly before defendant’s trial was to

begin, he was overheard on a phone call discussing a Karol or

Carolyn. He said this person had been in protective custody but

might be out and he needed to locate her. He said he had men

looking for her because “without her, they didn’t have a case”

against him.

2. Mitigating Evidence

Defendant presented extensive evidence about his early

childhood in Cambodia under the Khmer Rouge regime,

atrocities the Khmer Rouge committed against his family and

others, and expert testimony explaining how these traumatic

experiences may have affected his psychological and

neurological development. Because defendant raises no legal

issue concerning this evidence, we summarize it only briefly

here.

a. Childhood Trauma

Defendant was born in Cambodia in 1972, shortly before

the Khmer Rouge took over the country. His father, previously

a rice farmer, was drafted and fought against the regime. When

their village was attacked, the family hid for more than a week

under a Buddhist temple. The Khmer Rouge took over the town,

imprisoned his father, loaded defendant and his brother into a

wagon at gunpoint, and sent them to a work camp. Defendant

was four or five years old and his brother was seven or eight.

Children in the camp were indoctrinated to reject their parents

and consider the state their family. They had no bed or blankets

and were fed only rice water. Many died. Defendant and his

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brother ran away at least twice but were caught and brutally

punished upon their return. They were freed only after the

Vietnamese ousted the Khmer Rouge.

The family was reunited and decided to leave Cambodia,

walking for three days and two nights to the Thailand border.

They passed many corpses and saw an entire family killed by an

exploding landmine. In a Thai refugee camp, defendant often

ran away to hunt or beg for more food. He showed signs of

starvation and tuberculosis.

The family immigrated to America in 1981, settling in

Mobile, Alabama. Defendant went to a school that was not

equipped to handle Cambodian refugees and offered no

language support. Defendant suffered from poor health and

often ran away from home, sleeping in a dumpster. After four

years, the family moved to California.

b. Psychological and Neurological Evidence

Trauma expert William Foreman interviewed defendant

and his family and reviewed school, court, and medical records.

He did not administer psychological tests because he believed

defendant lacked the necessary English and reading

comprehension skills. Foreman reviewed the history of

defendant’s early life in detail. The most important thread was

his parents’ inability to intervene and protect him. For example,

defendant nearly drowned when he was very young and was

pulled from the water by a villager. Although he was confused

and ill afterward, the Khmer Rouge prevented his mother from

comforting him. Throughout his childhood, defendant’s actions

were focused on survival, something typically seen in trauma

cases. In the United States, defendant again lacked parental

care and supervision. His parents drank heavily, argued

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violently, and beat the children. Foreman diagnosed defendant

with reactive attachment disorder and chronic posttraumatic

stress disorder (PTSD). Antisocial personality disorder was

another possible diagnosis based on defendant’s “sheer degree of

criminal behavior.” However, Foreman considered these

behaviors artifacts of survival strategies developed in

Cambodia. Defendant said he regretted murdering the Nguyen

children but had been unable to react emotionally until long

after the event. Foreman concluded defendant’s criminal and

gang activities were reenactments of his early childhood

experiences.

Paul Leung, an expert in cross-cultural psychiatry,

reviewed the details of defendant’s early life and explained that

even incidents defendant did not remember could have

significantly affected him. Malnutrition could have delayed his

brain development and impaired his learning ability. Exposure

to war and violence could have caused long-term anxiety. There

were also indications of serious head trauma, which could have

altered his temperament. Although defendant satisfied several

of the criteria, ultimately Leung could not diagnose PTSD

because defendant was unable to recall specific traumatic

events. Nevertheless, his history and behavior were consistent

with PTSD.

Child psychiatrist William Sack also testified about the

impact of defendant’s early childhood. The forced separation

from his parents prevented him from forming a strong family

attachment. He would have felt abandoned and survived by

self-reliance. The coping strategies he had learned in Cambodia

worked against him in the United States. The lack of support

from school and family further impaired his development. He

found acceptance and trusted friends when he joined a gang.

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Sack had participated in a large study assessing PTSD in

Cambodian refugees. He discussed defendant’s various

symptoms and the traumatic experiences that could have

induced them. Sack concluded defendant might qualify for a

PTSD diagnosis only “if you bend the rules a little bit,” because

defendant did not report the type of recurrent intrusive

thoughts about trauma that are typically seen. Instead, Sack

thought reactive attachment disorder was the best diagnosis.

Defendant also reported significant substance abuse and

chronic depression.

A scan of defendant’s brain showed decreased frontal lobe

functioning, which is frequently seen in traumatic brain

injuries. Portions of his brain were asymmetrical, a pattern also

reported in PTSD patients. Defendant displayed abnormally

high activity in the orbital frontal lobe, a finding associated with

both traumatic brain injury and PTSD. Defendant’s brain

abnormalities could have been caused by head injury or

malnutrition. These patterns have been associated with poor

judgment and aggressive impulse control.

c. Anticipated Custody Conditions and

Family Testimony

A former correctional counselor described the conditions

in secure housing units at Pelican Bay State Prison. If given a

sentence of life without parole, defendant’s offenses and jail

record would require him to be placed in a Level 4 prison, like

Pelican Bay. He would spend at least four to six years in the

highly restrictive setting of the prison’s secure housing unit.

In addition to describing his childhood, defendant’s family

members asked the jury to show mercy in sentencing.

Onkhamdy testified that defendant had moved with her to

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Portland in an effort to quit TRG. He took a job at a deli and

spent time fishing and cooking. When he returned to California

in June 1995, he said he was going to visit his family. The couple

had a son born after defendant’s arrest. Although defendant

saw the child only once, during a jail visit, he sent the boy

birthday cards and letters.

3. Rebuttal

During trial, defendant was housed in the county jail’s

high security unit. Deputies conducting a routine search of his

cell found a handmade handcuff key hidden under the frame of

his desk. When tested, the key successfully opened a pair of

handcuffs.

Craig Rath, a clinical psychologist, disputed the defense

experts’ findings. Based on defendant’s speech in recordings, his

high school grades, and the letters he wrote to his girlfriend and

others, Rath observed defendant was facile in English. He could

have taken many psychological tests that were not given. Rath

found the reactive attachment disorder diagnosis questionable

because there was ample evidence defendant had formed bonds

with his girlfriend and other gang members. This bonding

would be impossible for someone with the disorder. Rath

thought a conduct disorder was more likely. Defendant’s

continual criminal behavior was inconsistent with PTSD and

more strongly associated with psychopathy or antisocial

personality disorder. Defendant’s traits and behavior were

consistent with severe psychopathy.

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II. DISCUSSION

A. Guilt Phase Issues

1. Admission of Inflammatory Evidence

Defendant contends the court improperly admitted

irrelevant evidence about the Sacramento murders and his gang

membership. Noting the inflammatory quality of the evidence,

he contends the errors were so prejudicial as to violate his rights

to due process and a reliable guilt verdict. There was no error

and no constitutional violation.

a. Other Crimes

i. Background

Before trial, the prosecution gave notice that it intended

to present guilt phase evidence of several other homicides in the

days leading up to the Nguyen murders. Specifically, the

prosecution sought to admit evidence of the July 10 home

invasion robbery and murders in Spokane; the July 27 murders

in Sacramento; the July 28 execution-style murder of Trang Vu

(see post, at pp. 56–57); the August 6 drive-by murder of Bun;

and the August 8 drive-by murder of Vargas. Defendant and

Pan each moved to exclude this evidence. The court granted

their motions as to most of the crimes, concluding the

circumstances were too dissimilar from the present charges for

the evidence to be admissible. It held an Evidence Code

section 402 hearing to consider admissibility of the Sacramento

crimes.

After hearing from several witnesses, the court

determined the Sacramento evidence was admissible against

Pan on the issue of knowledge and intent in providing the

murder weapon. Although the issue was “more troublesome and

closer” in defendant’s case, the court concluded the evidence

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showed premeditation and malice. The Sacramento crimes

tended to show defendant entered the Elm Street home with the

intent to commit a robbery and, in doing so, “he did not hesitate

to kill individuals when he felt it to be necessary.” Because the

evidence was admissible against both defendant and Pan, the

court also denied a severance motion. After the court granted

Pan’s motion for acquittal (see § 1118.1), defendant renewed his

objections and moved for a mistrial. The court denied the

motion, noting that defendant’s conduct in Sacramento tended

to show his premeditation and intent to kill in the Elm Street

murders. Similarities between the crimes also tended to

establish they were done as part of a common scheme.

During trial, the court instructed extensively on the

limited ways the jury could use the Sacramento evidence. Three

times, before testimony concerning the Sacramento case, the

court read the following admonition:

“Certain evidence is admitted for a limited purpose. Such

evidence is going to be received at this time. [¶] You are

instructed that you are not to consider it for any purpose other

than the limited purpose for which it is admitted. The fact that

it is being admitted at this point in the trial has no significance

as to its relative importance.

“This trial concerns charges by the [P]eople that the

defendants allegedly committed a home-invasion

robbery/murder which occurred on August 9, 1995, on Elm

Street in the City of San Bernardino. [¶] I remind you that the

defendants have entered pleas of not guilty and it will be up to

the jury to determine whether or not they are guilty of the

charges which the People must prove to you beyond a reasonable

doubt.

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“The law permits under certain circumstances that

evidence of similar crimes or criminal acts to those charged in

this case may be presented to the jury. This evidence concerns

an uncharged crime in this trial that occurred in the [C]ity of

Sacramento on July 27, 1995. That crime involved a home-

invasion robbery/murder. [¶] This evidence is being admitted

for the limited purpose as evidence in the Elm Street crimes of

premeditation and malice aforethought as required in the crime

of first degree murder, [and] the necessary intent as required in

the crimes of murder, robbery, and burglary. It may be used as

evidence of a common scheme, motive, or knowledge. You will

be completely instructed as to the elements of all crimes charged

in the Elm Street incident.

“Before you may consider this evidence for any purpose,

you must be satisfied by a preponderance of the evidence that

the Sacramento crimes took place and that the defendants were

participants in committing them. You are not to consider any of

this limited evidence as proof of a propensity of the defendants

to commit the crimes charged in the Elm Street offenses and you

are reminded you may not find either or both of the defendants

guilty of the Elm Street crimes solely on this evidence, but must

determine the truth of those charges beyond a reasonable doubt.

And you may consider this evidence of the Sacramento crimes

only for the limited purpose for which it is being admitted.

[¶] Further, you may not and you are not to consider this

evidence of the Sacramento offenses as corroboration of the

testimony of any coparticipant that may testify in this trial

concerning the Elm Street killings.”

A slightly modified version of this admonition, referring to

a singular defendant instead of “defendants,” was also included

in instructions before closing argument. At that time, the court

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gave further instructions on the limited purposes for which the

Sacramento evidence could be considered:

“Evidence has been introduced for the purpose of showing

that the defendant committed a crime other than that for which

he is on trial. [¶] This evidence, if believed, may not be

considered by you to prove that defendant is a person of bad

character or that he has a disposition to commit crimes. It may

be considered by you only for the limited purpose of determining

that it tends to show a characteristic method, plan, or scheme in

the commission of criminal acts similar to the method, plan, or

scheme used in the commission of the offenses in this case[,]

which would further tend to show . . . [¶] [t]he existence of the

intent which is a necessary element of the crime charged; [¶] [or,

a] motive for the commission of the crime charged[.] [¶] For the

limited purpose for which you may consider such evidence, you

must weight it in the same manner as you do all other evidence

in this case.” (See CALJIC No. 2.50.)

ii. Discussion

Defendant first argues the Sacramento evidence was

improperly admitted under Evidence Code sections 1101 and

352. Evidence Code section 1101, subdivision (a) prohibits

admission of evidence of a person’s character, including evidence

of character in the form of specific instances of uncharged

misconduct, to prove the conduct of that person on a specified

occasion. The provision “expressly prohibits the use of an

uncharged offense if the only theory of relevance is that the

accused has a propensity (or disposition) to commit the crime

charged and that this propensity is circumstantial proof that the

accused behaved accordingly on the occasion of the charged

offense.” (People v. Thompson (1980) 27 Cal.3d 303, 316.)

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“Subdivision (b) of section 1101 clarifies, however, that this rule

does not prohibit admission of evidence of uncharged

misconduct when such evidence is relevant to establish some

fact other than the person’s character or disposition.” (People v.

Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) “If an uncharged

act is relevant to prove some fact other than propensity,” such

as the perpetrator’s intent or identity, or the existence of a

common plan, “the evidence is admissible, subject to a limiting

instruction upon request.” (People v. Bryant, Smith and Wheeler

(2014) 60 Cal.4th 335, 406 (Bryant, Smith and Wheeler).)

“Evidence of uncharged crimes is admissible to prove

identity, common plan, and intent ‘only if the charged and

uncharged crimes are sufficiently similar to support a rational

inference’ on these issues.” (People v. Edwards (2013) 57 Cal.4th

658, 711 (Edwards).) The degree of similarity varies depending

on the purpose for which the evidence is offered. “The least

degree of similarity . . . is required in order to prove intent.”

(Ewoldt, supra, 7 Cal.4th at p. 402.) For this purpose, “the

uncharged misconduct must be sufficiently similar to support

the inference that the defendant ‘ “probably harbor[ed] the same

intent in each instance.” ’ ” (Ibid.) A higher degree of similarity

is required to prove the existence of a common plan: “[E]vidence

of uncharged misconduct must demonstrate ‘not merely a

similarity in the results, but such a concurrence of common

features that the various acts are naturally to be explained as

caused by a general plan of which they are the individual

manifestations.’ ” (Ibid.) Finally, although not at issue here,9

9

The court specifically ruled the Sacramento evidence was

not admissible to prove identity. There was ample other

evidence that defendant was among the attackers in both

Sacramento and San Bernardino. The court also instructed that

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“[t]he greatest degree of similarity is required for evidence of

uncharged misconduct to be relevant to prove identity.”

(Ewoldt, at p. 403.) To establish identity, the uncharged and

charged crimes “ ‘must be so unusual and distinctive as to be

like a signature.’ ” (Ibid.)

Even if evidence of the uncharged conduct is sufficiently

similar to the charged crimes to be relevant for a nonpropensity

purpose, the trial court must next determine whether the

evidence’s probative value is “substantially outweighed by the

probability that its admission [would] . . . create substantial

danger of undue prejudice, of confusing the issues, or of

misleading the jury.” (Evid. Code, § 352; see Ewoldt, supra, 7

Cal.4th at p. 404.)

As with other evidentiary rulings, the trial court’s decision

is reviewed for abuse of discretion. (Edwards, supra, 57 Cal.4th

at p. 711.) “ ‘Under the abuse of discretion standard, “a trial

court’s ruling will not be disturbed, and reversal . . . is not

required, unless the trial court exercised its discretion in an

arbitrary, capricious, or patently absurd manner that resulted

in a manifest miscarriage of justice.” [Citation.]’ ” (People v.

Foster (2010) 50 Cal.4th 1301, 1328–1329 (Foster).) We conclude

evidence of the Sacramento crimes was properly admitted to

before jurors could even consider the Sacramento evidence as to

common plan or scheme or state of mind, they had to find by

preponderating evidence that defendant had participated in

both attacks. Naturally, as with all circumstantial evidence, the

jury could not rely on the Sacramento evidence as proof of guilt

unless it concluded those relevant facts had been proven beyond

a reasonable doubt. The jury was given CALJIC Nos. 2.01 and

2.02, which properly explained the use of circumstantial

evidence.

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show defendant’s state of mind for the charged offenses.

Because the court did not abuse its discretion under state law,

defendant’s constitutional claims also fail. (People v. Fuiava

(2012) 53 Cal.4th 622, 670.)

As the trial court observed, the Sacramento murders

shared numerous common features with the Elm Street attacks

committed less than two weeks later. Both sets of murders

occurred in the evening during home invasion robberies. Both

were carried out as gang-related activities. The targets were

Asian10 families, known to someone associated with the gang,

and believed to keep cash or jewelry in the home. In both cases,

the person who had provided information on the family waited

in the car while other gang members entered the home.

Defendant took two associates inside with him each time: Pan

and Evans in Sacramento; Evans and Scrappy in San

Bernardino. Defendant was armed with a Glock nine-

millimeter pistol in each robbery. The incidents unfolded

similarly, as well. In each, the robbers inflicted a nonfatal

wound on one family member while demanding that the others

produce money and valuables. When the victims did not comply,

they were shot repeatedly.

There were some differences between the incidents. The

Sacramento crime occurred in an apartment rather than a

house. It was witnessed by other family members from an

upstairs apartment. Defendant was identified as the only

robber armed with a handgun. He left two family members alive

in Sacramento and obtained no money but left only one survivor

at Elm Street and acquired cash and jewelry. These differences

10

Both were apparently Vietnamese, although Quyen Luu of

the Le family used a Cantonese interpreter in testifying.

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do not undermine the probative value of the crimes’ many

similarities. If anything, they reveal that defendant and his

fellow gang members learned from their recent mistakes and

carried out the Elm Street crimes more effectively. The botched

Sacramento crime could explain defendant’s desire to have a

second gun available at Elm Street. Defendant also complains

that the similarities the court found could describe most

residential robberies. However, “it was the combination of

similar factors common to” both crimes that rendered them

distinctive and made the Sacramento evidence relevant for a

nonpropensity purpose. (People v. Rogers (2013) 57 Cal.4th 296,

328 (Rogers).) In an Evidence Code section 1101, subdivision (b)

analysis, “ ‘features of substantial but lesser distinctiveness

may yield a distinctive combination when considered together.’ ”

(Rogers, at p. 328.)

“ ‘ “We have long recognized ‘that if a person acts similarly

in similar situations, he probably harbors the same intent in

each instance’ . . . . The inference to be drawn is not that the

actor is disposed to commit such acts; instead, the inference to

be drawn is that, in light of the first event, the actor, at the time

of the second event, must have had the intent attributed to him

by the prosecution.” ’ ” (People v. Roldan (2005) 35 Cal.4th 646,

706 (Roldan).) The Sacramento and Elm Street crimes were

sufficiently similar to show the same intent in both cases: to kill

any or all residents if necessary to successfully complete the

robbery. For the same reason, as the trial court observed, the

Sacramento evidence tended to show that the Elm Street

murders were premeditated and deliberate, rather than the

result of an impulsive or spontaneous reaction. We have

frequently upheld the admission of uncharged crime evidence

relevant to premeditation, deliberation, and intent to kill. (See,

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e.g., Rogers, supra, 57 Cal.4th at p. 328; People v. Soper (2009)

45 Cal.4th 759, 778 (Soper).) Similar evidence was also held

properly admitted to show intent and common design or plan in

People v. Johnson (2013) 221 Cal.App.4th 623. In Johnson,

“Both crimes were home-invasion robberies. The main purpose

of the crimes was to obtain drugs. The modus operandi used to

gain admission into the residences was the same: knocking on

the front door and forcing entry when the victim opened the

door. In both crimes, appellant was assisted by two accomplices

and was the ‘mastermind.’ ” (Id. at p. 635.) Similarly here, the

trial court did not abuse its discretion in admitting the

Sacramento crimes to show defendant’s state of mind.

As in Johnson, the evidence was also relevant to whether

defendant acted in accordance with a common design or plan.

“Evidence of a common design or plan . . . is not used to prove

the defendant’s intent or identity but rather to prove that the

defendant engaged in the conduct alleged to constitute the

charged offense.” (Ewoldt, supra, 7 Cal.4th at p. 394.) Here, in

addition to asserting premeditation and deliberation, the

prosecution pursued first degree murder charges under a felony-

murder theory. It had to prove not only that members of the

Nguyen family were murdered, but also that the murders were

committed in the course of a robbery or burglary. Evidence of

defendant’s conduct 13 days earlier was relevant to show he

employed the same general plan on both occasions. Armed with

a nine-millimeter pistol, defendant and two fellow gang

members entered the homes of specifically targeted Asian

families, demanded cash and jewelry, disabled one family

member with a nonfatal shot, then killed some or all of the

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victims.11 “ ‘To establish the existence of a common design or

plan, the common features must indicate the existence of a plan

rather than a series of similar spontaneous acts, but the plan

thus revealed need not be distinctive or unusual’; rather it ‘need

only exist to support the inference that the defendant employed

that plan in committing the charged offense.’ ” (Edwards,

supra, 57 Cal.4th at p. 712.) Accordingly, once the evidence was

admitted to show defendant’s state of mind, the court could also

properly instruct on its relevance to show a common plan. 12

Defendant protests the Sacramento evidence was not

relevant to any disputed issue. He argues intent to kill was clear

from the manner of the killings, with the victims shot at very

close range, and that premeditation should not be considered a

disputed issue because in closing argument the prosecutor

invited the jury to rely on felony murder as an “easier” path to a

first degree murder conviction. Finally, he maintains that no

one disputed a robbery and burglary had taken place at Elm

Street. The only real dispute, according to defendant, was his

identity as one of the Elm Street attackers. These arguments

misapprehend the prosecution’s burden at trial. As we have

repeatedly noted, a not guilty plea places in issue all elements

of the charged crimes. (See, e.g., Bryant, Smith and Wheeler,

11

Quyen Luu’s testimony suggests Hung Le’s brother and

possibly one other person were in the Sacramento apartment

during the robbery, but it does not appear these individuals

were shot.

12

Separately, defendant asserts that the Sacramento

evidence was admissible only against Pan, and the court erred

in refusing to sever his trial from Pan’s. Because we have

concluded the evidence was relevant to disputed issues in the

charges against defendant, however, the premise of this

argument fails.

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supra, 60 Cal.4th at p. 407; People v. Lindberg (2008) 45 Cal.4th

1, 23 (Lindberg); Roldan, supra, 35 Cal.4th at pp. 705–706.)

Defendant did not concede his guilt on any issue, requiring the

prosecution to prove each element of first degree murder,

attempted murder, robbery, and burglary, along with the

enhancements and special circumstances. “Defendant’s

assertion that his defense to the . . . charges was bound to focus

upon identity, and not intent, would not eliminate the

prosecution’s burden to establish both intent and identity

beyond a reasonable doubt.” (Soper, supra, 45 Cal.4th at p. 777.)

Even when other evidence is present, it remains the

prosecution’s burden to prove premeditation and malice beyond

a reasonable doubt. It has the “right to introduce all relevant

and admissible evidence toward that end.” (Rogers, supra, 57

Cal.4th at p. 330.)13

The court also properly exercised its discretion under

Evidence Code section 352. (See Ewoldt, supra, 7 Cal.4th at

p. 404.) The Sacramento and Elm Street murders shared

numerous similarities. Defendant committed them less than

two weeks apart. The Sacramento evidence was highly

probative of defendant’s mental state in San Bernardino. (See

Rogers, supra, 57 Cal.4th at p. 331.) Nor was the evidence

unduly prejudicial. “As we have repeatedly explained: ‘ “In

applying section 352, ‘prejudicial’ is not synonymous with

‘damaging.’ ” ’ [Citation.] ‘ “ ‘[A]ll evidence which tends to prove

13

Defendant’s argument is also at odds with his trial

strategy. His lawyer gave no opening statement and offered no

guilt-phase evidence. His defense only became fully clear during

closing arguments, when counsel asserted there was insufficient

corroboration of the accomplices’ testimony to support a finding

of guilt beyond a reasonable doubt.

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guilt is prejudicial or damaging to the defendant’s case.’ ” ’

[Citation.] The ‘prejudice’ which section 352 seeks to avoid is

that which ‘ “ ‘uniquely tends to evoke an emotional bias against

the defendant as an individual and which has very little effect

on the issues.’ ” ’ ” (People v. Cage (2015) 62 Cal.4th 256, 275.)

The Sacramento crimes were less inflammatory than the

charged crimes, in that fewer people were killed and none were

children. Defendant complains that the volume of testimony

about the Sacramento crimes was disproportionate to its

relevance. He argues the evidence was merely cumulative

because the nature of the Elm Street shootings showed the

perpetrator’s intent and the jury did not need to find

premeditation to convict on first degree murder. But, as noted,

the issues of defendant’s intent and actions were not beyond

dispute, and additional evidence on these subjects was not

merely cumulative. (See People v. Scott (2015) 61 Cal.4th 363,

399; Foster, supra, 50 Cal.4th at p. 1331.)

Moreover, the extensive limiting instructions the court

read during testimony and before argument directed the jury

not to use the other crimes evidence for an improper purpose,

including bad character. “We presume the jury followed these

instructions.” (Lindberg, supra, 45 Cal.4th at p. 26.) The

prosecutor’s closing argument reinforced the instructions. He

explained at length that the Sacramento evidence was only

offered to show that defendant acted according to a common

scheme and with the intent to kill, and could not be used simply

to show that defendant was a bad person.

b Gang Membership

Defendant complains of evidence he belonged to a gang.

The evidence violated neither statutory nor constitutional law.

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i. Background

Defendant and Pan both moved to exclude evidence of

gang membership. The court denied the motion in a written

order, explaining: “This uncharged conspiracy, if proven, would

tend to establish Pan’s involvement in the crime, showing his

knowledge and intent in furnishing the gun, and it would be of

some value to the prosecution in establishing the necessary

specific intent by both defendants to commit the robbery and

burglary which resulted in the murders and which then may

tend to prove motive.” The court cautioned that the gang

evidence should be limited to that needed to explain the

relationship between the defendants, Pan’s conduct, and both

men’s intent and motive. It concluded the evidence would not

be unduly prejudicial under Evidence Code section 352 because,

even without direct evidence, the facts of the case “allude to and

strongly suggest the existence of a gang” and defendants’

relationship to it.

After an in limine hearing, the court allowed Sergeant

Frank to testify as an expert about the organization of Asian

gangs, including the Tiny Rascals, as well as their differences

from other types of gangs, their use of firearms, and their typical

practice of committing home invasion robberies. The prosecutor

was not permitted to ask hypotheticals that would elicit an

opinion about the Sacramento or Elm Street crimes. Nor could

he present evidence about Asian gangs’ attempts to intimidate

witnesses, unless it later became relevant to explain a witness’s

attitude or conduct.

Before Sergeant Frank testified, the court gave an

admonition agreed upon by the parties: “This witness . . . is

being called for a specific purpose and a very limited purpose.

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The law allows that some evidence occasionally may be admitted

for limited purposes only, and you will be admonished to

consider this evidence only for those limited purposes. This is

such evidence. You’re going to hear testimony concerning

activities which at first may sound strange to you and not

relevant to the case, but at some subsequent time I will

admonish you and explain to you why the evidence is relevant,

if it is, and why it has been admitted and the limited purpose for

which you may consider it.” Before closing arguments, the jury

was instructed: “Evidence has . . . been introduced that the

defendants are members of the Tiny Rascals Gang. Such

evidence, if believed, was not received and may not be

considered by you to prove that they are persons of bad

character or that they have a disposition to commit crimes.”

ii. Discussion

The People are generally entitled to introduce evidence of

a defendant’s gang affiliation and activity if it is relevant to the

charged offense. (People v. McKinnon (2011) 52 Cal.4th 610, 655

(McKinnon).) “Evidence of the defendant’s gang affiliation —

including evidence of the gang’s territory, membership, signs,

symbols, beliefs and practices, criminal enterprises, rivalries,

and the like — can help prove identity, motive, modus operandi,

specific intent, means of applying force or fear, or other issues

pertinent to guilt of the charged crime.” (People v. Hernandez

(2004) 33 Cal.4th 1040, 1049 (Hernandez).) Even when it is

relevant, however, “courts should carefully scrutinize evidence

of a defendant’s gang membership because such evidence

‘creates a risk the jury will improperly infer the defendant has

a criminal disposition and is therefore guilty of the offense

charged.’ ” (People v. Melendez (2016) 2 Cal.5th 1, 28–29; see

People v. Williams (1997) 16 Cal.4th 153, 193.) We review the

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trial court’s ruling for abuse of discretion. (Melendez, at p. 29;

People v. Carter (2003) 30 Cal.4th 1166, 1194 (Carter).)

Defendant first complains his gang affiliation was not

relevant to any disputed issue. As with the Sacramento

evidence, he contends his intent to kill was indisputable given

the manner of the shootings. He also argues, “The motive for

the crime here, financial gain, was apparent — and not gang

related.” However, these characterizations adopt an overly

narrow view of the disputed issues and the evidence relevant to

address them.

As noted, a not guilty plea disputes all elements of the

charged crimes. (See Bryant, Smith and Wheeler, supra, 60

Cal.4th at p. 407; Lindberg, supra, 45 Cal.4th at p. 23; Roldan,

supra, 35 Cal.4th at pp. 705–706.) Evidence of defendant’s gang

membership was relevant to show his relationship with the

accomplices who testified against him, to prove his identity as

one of the robbers. (See People v. Montes (2014) 58 Cal.4th 809,

859 (Montes).) It also tended to show his intent to steal and kill

if necessary. Sergeant Frank’s testimony helped illuminate

other evidence about the plan or scheme by which the crimes

were carried out. Frank explained that home invasion robberies

are a signature crime of Asian street gangs like TRG and are

typically committed against Asian families, such as the

Nguyens. The gangs frequently intimidate their victims by

threatening, harming, or even torturing the most vulnerable

family members, including children. This evidence helped

explain the significance of the nonfatal gunshot wound to

Dennis’s hand, the small knifepoint cuts to Henry’s neck, and

the toothpaste smeared on Trinh’s face. Because home invasion

robberies are complex crimes, gangs often assign specific roles

to different gang members. Frank also explained that Asian

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gangs particularly value firearms and use them only for

committing crimes. This testimony shed light on how the

robbery was conducted, including why only two guns were taken

to the house and why so many bullets had been fired from a

single weapon.

In addition, the evidence showed defendant was a shot

caller in TRG, which meant he had enough standing in the gang

to give direction to junior members. This evidence, combined

with Frank’s testimony that Asian gangs promote leaders based

on their criminal experience, was relevant to defendant’s motive

to rob and his intent to kill while doing so. Defendant’s

argument that financial gain was the sole motive for the robbery

ignores evidence that committing the crimes would have

enhanced his gang status. Moreover, defendant’s sole focus on

the robbery is too narrow. Intent to kill was a disputed issue for

the murder charges and special circumstances. While not itself

an element of the crimes, motive can illuminate intent. (See,

e.g., Carter, supra, 30 Cal.4th at p. 1195.) “ ‘ “[B]ecause a motive

is ordinarily the incentive for criminal behavior, its probative

value generally exceeds its prejudicial effect, and wide latitude

is permitted in admitting evidence of its existence.” ’ ”

(McKinnon, supra, 52 Cal.4th at p. 655.)

Defendant next argues that even if evidence of his gang

membership was relevant, the gang expert’s testimony should

have been excluded because it was overbroad, inflammatory,

and unduly prejudicial. He complains that the testimony

pertained to Asian gangs generally, rather than TRG in

particular. But Frank testified in detail about TRG’s history

and organization. He also described the age and gender of

members, the meaning of TRG’s name, and the significance of

TRG tattoos. Defendant was free to highlight any

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overgeneralizations on cross-examination and did so at length.

During defendant’s cross-examination, Frank conceded there

are many Asian cultures and some differ markedly. In response

to Pan’s questioning, Frank also explained that, while many

Asian gangs are no longer ethnically separated, gangs of

different ethnicities can have distinct structures. For example,

age determines leadership in Korean gangs, whereas experience

is more important in Vietnamese and Cambodian gangs.

Defendant’s primary objection, however, concerns expert

testimony about victim intimidation. Frank testified that Asian

street gang members had “universally” told him their primary

compliance tactic was “to go after the children in front of their

parents.” He explained, the “younger the child . . . , the more

coercive they feel that can be with the parents. And so it’s not

at all uncommon to start with either the very youngest or the

very oldest member of the household.” Frank described three

incidents: “We’ve had a two-year-old hung . . . by his ankles out

of a second story window”; “another case where a one-year-old

child was picked up and his head repeatedly dunked in the

toilet”; and a third instance in which “a pan of boiling water . . .

was poured over a 79-year-old grandmother.” Defendant argues

these examples were irrelevant and needlessly inflammatory.

However, this testimony was relevant to explain the nonfatal

wounds on the Elm Street victims, as well as the nonfatal

gunshot wound inflicted upon Quyen Luu in Sacramento. It

illuminated the gang’s modus operandi and explained the

motive for the nonfatal gunshots, knife cuts, and toothpaste

smeared on Trinh Tran’s face. Although distressing, the

examples directly showed the perpetrators’ desire to cause

distress in pursuit of their aims. Testimony about them was

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brief and unelaborated and was not more inflammatory than the

torture and murders of the Nguyen family.

Nor was the probative value of the gang evidence

substantially outweighed by the risk of undue prejudice. “ ‘The

admission of gang evidence over an Evidence Code section 352

objection will not be disturbed on appeal unless the trial court’s

decision exceeds the bounds of reason.’ ” (Montes, supra, 58

Cal.4th at p. 859.) The court here carefully weighed the

probative value of the evidence against the potential for undue

prejudice. It took steps to minimize the subject areas of expert

testimony and instructed that the evidence could not be used as

proof of defendant’s character.

Defendant complains the limiting instructions were

inadequate because the court never explained what purpose the

gang evidence could be used for, even though its first

admonishment said an explanation would later be provided. If

defendant believed a more extensive instruction was needed, it

was his burden to request one. (See People v. Powell (2018) 6

Cal.5th 136, 161; Hernandez, supra, 33 Cal.4th at p. 1052.)

During trial, the court invited counsel to propose instructions on

the issue. Indeed, the record suggests that the closing

instruction on gang evidence was offered by the defense.14 It

described the prohibited uses of the evidence but refrained,

possibly for tactical reasons (see Hernandez, at p. 1053), from

14

The court stated: “Special instructions have been offered

by the defense, and one is . . . instruction number 2.50a

regarding the fact that evidence has been offered concerning the

fact that the defendants are members of the Tiny Rascal[s]

Gang, and this should not be used as any consideration by the

jury that they’re bad persons or of bad character or that they

have a disposition to commit crime[s].”

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spelling out exactly how the evidence could be used. Having

proposed the instruction at issue, and raised no objection,

defendant cannot now complain it was inadequate. His reliance

on U.S. v. Jobson (6th Cir. 1996) 102 F.3d 214 is also unavailing.

Jobson requested a limiting instruction on gang evidence but the

district court declined to give it, instructing the jury instead that

the evidence had been admitted for a limited purpose without

ever saying what the purpose was or that using the evidence as

proof of bad character or a criminal disposition was prohibited.

(Id. at p. 222.) The case is not precedentially binding on this

court and is factually distinguishable.15

2. Witness Support Persons

Witness support persons were present in court during

some testimony. Defendant complains that the court failed to

follow required statutory procedures and that this practice

violated his confrontation and due process rights. There was no

prejudicial error.

a. Background

An employee of the District Attorney’s office accompanied

Lilah Garcia to the witness stand.16 Garcia was a neighbor who

found the Nguyens’ bodies and comforted Dennis. When

defendant objected in chambers, the prosecutor made an offer of

proof that Garcia was “terrified to be here,” “very afraid of these

defendants,” and had asked that a support person sit with her.

15

Although no error occurred here, an instruction explaining

the limited purpose for which gang evidence has been admitted,

such as CALCRIM No. 1403, is generally advisable.

16

The same support person had previously joined Mei Le

and Amie Le during their testimony at an Evidence Code

section 402 hearing.

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Defendant’s attorney requested a hearing on whether the

support person was requested and necessary. The court

accepted the prosecutor’s offer and found that the need for a

support person had been adequately established. The employee

was placed in a seat “substantially behind the witness” and

ordered to remove a badge showing her association with the

District Attorney’s office. The court stated that the jury would

be given “no indication as to who she is, why she’s there or

anything else, other than she’s just simply there.” The next day,

defense counsel observed that, in addition to accompanying

Garcia at the witness stand, the person also sat in the front row

of the audience section during testimony from another

witness.17 He asked that the court admonish any future support

persons not to prompt or interfere with the testifying witness.

(See § 868.5, subd. (b).)

Later in trial, the prosecutor advised the court and counsel

that Mei Le and Amie Le, the daughters of the Sacramento

victims, requested a support person during their testimony.

This time defense counsel requested an admonition not to the

support person but to the jury, explaining “that she is an

employee of the D.A.’s office and a witness advocate.” The court

stated it would “simply tell the jury that . . . the witness[] has

requested that there be a person in the courtroom pending her

testimony to act as liaison support and that this individual is in

that capacity.” Defense counsel responded, “Uh-huh,” which

was apparently understood as assent. When Mei was called the

following day, the court stated: “Ladies and gentlemen, you will

17

Although counsel did not name the witness, his

description of her as a Hispanic woman suggests it was Graciela

Elias, another neighbor who testified immediately after Garcia.

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notice that there is a young lady sitting behind the witness.

[¶] The law allows that a witness under certain circumstances

can request the presence of someone to merely be there for moral

support. That individual is not to in any way confer with,

attempt to influence, or be involved at all in the testimony. Just

the mere presence is allowed and for the assurance that the

witness may have by that individual being here. So please

understand that is why this other person is seated behind the

witness.” The admonition was not repeated before Amie’s

testimony.

Finally, defendant’s counsel objected to the presence of a

support person during Karol Tran’s testimony. Shirley Amador,

the wife of Karol’s attorney Robert Amador, sat inside the

railing behind the District Attorney’s table. Counsel argued

Shirley was a potential witness because she had helped secure

a reduction in the charges against Karol. The prosecutor

disputed this characterization, noting Shirley was not on his

witness list and the defendants had indicated they would not

call any witnesses. He observed that Karol had a right to have

her attorney present but he was in trial elsewhere. In his place,

Shirley was there “just to be moral support” for Karol. He

stressed that she was sitting “out in the audience” and not at

the witness stand. The court overruled the objection.

During Karol’s cross-examination, defendant’s attorney

interjected to complain that Shirley was signaling or coaching

the witness. Pan’s attorney called for a recess, and both defense

attorneys conferred with Robert Amador, who had entered the

courtroom at some point during the testimony. Pan’s attorney

then explained that Karol “wasn’t talking to Shirley. She was

motioning to Mr. Amador,” her attorney. One of defendant’s

attorneys stated he had seen Shirley’s lips moving while looking

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at the preliminary hearing transcript, which at the time was

being used to impeach Karol, but “we all believe it was

inadvertent.” Defendant’s other attorney added, “And it

appears in this last exchange that she was not conversing with

the witness. The witness was attempting to converse with her

and she was warning her off.” The prosecutor suggested it

would be better to have Shirley sit elsewhere, but the record

does not indicate whether that happened.

b. Discussion

Under section 868.5, subdivision (a), prosecuting

witnesses in a murder case are entitled to the attendance of up

to two support persons during their preliminary hearing and

trial testimony. One person may also accompany the witness at

the witness stand. (§ 868.5, subd. (a).) Section 868.5,

subdivision (b) requires additional procedures in some

circumstances. If the support person is also to be called as a

witness, the prosecution must present evidence that the support

person’s attendance is desired and will be helpful to the

prosecuting witness. (§ 868.5, subd. (b).) The judge must also

“admonish the support person or persons to not prompt, sway,

or influence the witness in any way.” (Ibid.)

Defendant contends the court did not follow these required

procedures because it failed to conduct an evidence-based “need

assessment” or “give the required admonition” each time a

support person appeared. The first argument lacks support in

the statute. On its face, section 868.5, subdivision (b) requires

an assessment of need only when the chosen support person is

also to be a witness in the case. That circumstance was not

present here. The second argument presents a closer question.

Although the subdivision is prefaced with the phrase “[i]f the

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person or persons so chosen are also witnesses,” which would

seem to limit its application to this specific context, a later

sentence addressing admonitions provides that “[i]n all cases,

the judge shall admonish the support person or persons to not

prompt, sway, or influence the witness in any way.”18 (§ 868.5,

subd. (b).) It is unclear whether the admonition requirement is

intended to apply in all cases or in all cases involving a support

person who will also be a witness, and the Courts of Appeal have

reached different conclusions. (Compare People v. Valenti

(2016) 243 Cal.App.4th 1140, 1169–1171 (Valenti) with People

v. Spence (2012) 212 Cal.App.4th 478, 513 (Spence).) We need

not decide this question because there is no evidence that a

support person prompted, swayed, or influenced the witnesses

in any way. Accordingly, any error in failing to admonish the

18

The full text of the subdivision states: “If the person or

persons so chosen are also witnesses, the prosecution shall

present evidence that the person’s attendance is both desired by

the prosecuting witness for support and will be helpful to the

prosecuting witness. Upon that showing, the court shall grant

the request unless information presented by the defendant or

noticed by the court establishes that the support person’s

attendance during the testimony of the prosecuting witness

would pose a substantial risk of influencing or affecting the

content of that testimony. In the case of a juvenile court

proceeding, the judge shall inform the support person or persons

that juvenile court proceedings are confidential and may not be

discussed with anyone not in attendance at the proceedings. In

all cases, the judge shall admonish the support person or

persons to not prompt, sway, or influence the witness in any

way. Nothing in this section shall preclude a court from

exercising its discretion to remove a person from the courtroom

whom it believes is prompting, swaying, or influencing the

witness.” (Pen. Code, § 868.5, subd. (b), italics added.)

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support persons was harmless. (See People v. Watson (1956) 46

Cal.2d 818, 837.)

Despite the lack of statutory support, defendant argues a

case-specific, evidence-based showing of need for support

persons is required under the federal Constitution. He asserts

the procedure here infringed his Sixth Amendment

confrontation rights and was not justified by a compelling state

interest, given that the witnesses were not children or sexual

abuse victims who would be particularly susceptible to

psychological harm. Case law is to the contrary. (See People v.

Ybarra (2008) 166 Cal.App.4th 1069, 1077; People v. Adams

(1993) 19 Cal.App.4th 412, 435–437 (Adams).) Concerns about

improper vouching are also unfounded because the mere

“ ‘presence of a second person at the stand does not require the

jury to infer that the support person believes and endorses the

witness’s testimony, so it does not necessarily bolster the

witness’s testimony.’ ” (People v. Stevens (2009) 47 Cal.4th 625,

641, quoting Adams, at p. 437.) “Absent improper interference

by the support person, . . . no decision supports the proposition

that defendant advances here, that the support person’s mere

presence infringes his due process and confrontation clause

rights.” (People v. Myles (2012) 53 Cal.4th 1181, 1214 (Myles);

see Valenti, supra, 243 Cal.App.4th at p. 1171; Spence, supra,

212 Cal.App.4th at p. 514.)

Defendant contends a different result is compelled by

Maryland v. Craig (1990) 497 U.S. 836 (Craig) and Coy v. Iowa

(1988) 487 U.S. 1012, but the procedures employed in those

cases placed significant burdens on confrontation that were not

present here. In Coy, a large screen was placed between the

defendant and the witness stand, blocking the defendant’s view.

(Coy, at pp. 1014–1015.) Because this tactic prevented a face-

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to-face encounter, it violated the confrontation clause. (Id. at

pp. 1016–1020.) In Craig, a child witness was allowed to testify

by one-way closed-circuit television. (Craig, at p. 840.) The

court held the confrontation clause does not categorically

prohibit such a procedure, and a witness may testify outside the

defendant’s presence if the alternative arrangement is justified

by a compelling state interest and a case-specific finding of need.

(Id. at pp. 849, 852, 855–856.) These holdings concerned

procedures that deny face-to-face confrontation with an accuser,

a core concern of the confrontation clause. The use of a support

person does not do so. We agree with the Courts of Appeal that

have concluded the support person procedure does not require

the same constitutional scrutiny. (See People v. Andrade (2015)

238 Cal.App.4th 1274, 1298 (Andrade); People v. Chenault

(2014) 227 Cal.App.4th 1503, 1516 (Chenault); People v. Johns

(1997) 56 Cal.App.4th 550, 554 (Johns); People v. Lord (1994) 30

Cal.App.4th 1718, 1722 (Lord); People v. Patten (1992) 9

Cal.App.4th 1718, 1727.)

Nevertheless, relying on Adams, supra, 19 Cal.App.4th

412, defendant argues his confrontation rights were infringed

because the presence of witness support persons interfered with

the jury’s observation of testifying witnesses’ demeanor. In

Craig, the high court described four key components of the

confrontation right: “(1) the face-to-face confrontation, (2) the

oath, (3) the cross-examination, and (4) the jury’s observation of

the witness’s demeanor.” (Johns, supra, 56 Cal.App.4th at

p. 554, citing Craig, supra, 497 U.S. at p. 846.) The Court of

Appeal in Adams asserted the use of support persons implicates

the fourth component, jury observation of witness demeanor,

because a support person’s presence changes “the dynamics of

the testimonial experience for the witness” and thus alters the

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witness’s demeanor. (Adams, at p. 438.) Notably, the Adams

comments were made within a peculiar factual context. The

defense claimed the victim had falsely reported a sexual assault

because she feared the wrath of her abusive father. The father

was a trial witness and also appeared as her support person.

(Id. at pp. 424, 434–435.) This situation posed an unusual risk

that the support person’s mere presence might exert improper

influence on the witness during her testimony. To the extent

Adams implied a broader holding, requiring a compelling state

interest and necessity showing in other contexts, courts have

disagreed with it. (See Andrade, supra, 238 Cal.App.4th at

p. 1298; Chenault, supra, 227 Cal.App.4th at p. 1516; Johns, at

p. 554; Lord, supra, 30 Cal.App.4th at pp. 1721–1722; see also

Valenti, supra, 243 Cal.App.4th at pp. 1171–1172; Spence,

supra, 212 Cal.App.4th at pp. 517–518.) We do as well. A

support person’s mere presence in the courtroom or at the

witness stand does not infringe the defendant’s due process or

confrontation rights unless there is evidence of improper

interference by the support person. (Myles, supra, 53 Cal.4th at

p. 1214.)

Aware of our precedent, defendant claims support persons

“improperly insinuated themselves into the trial” on two

occasions. First, he notes that Garcia’s support person stood

between Garcia and the jury, blocking the jury’s view, and wore

a badge that disclosed her employment. Defendant appears to

challenge the support person’s positioning as a confrontation

clause violation and her badge as an instance of prosecutorial

vouching in violation of the due process clause. We need not

consider these arguments based on the record here. Defense

counsel objected immediately after Garcia was seated and gave

her name. Following a chambers conference, the court ordered

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that the support person be moved to a seat “substantially

behind” Garcia to ensure the jury’s view would be unimpeded.

It also ordered that the support person’s employment badge be

removed. The badge was not on display when Garcia was

testifying. If the badge had been visible when the support

person entered the courtroom, this indication of employment

was not an invocation of the office’s prestige or reputation

implicating vouching concerns. (See People v. Rodriguez (2020)

9 Cal.5th 474, 480.) Indeed, before Mei Le testified, defendant’s

attorney asked that the jury be told the support person was an

employee of the District Attorney’s office. Defendant cannot

complain of prejudice if a briefly worn badge indicated the

information he sought revealed.

Defendant also asserts Karol Tran’s support person was

inappropriately signaling to the witness during her testimony,

but the record belies this assertion. Although defense counsel

originally believed Shirley Amador was communicating with

Karol, he later clarified that she was not doing so. Instead,

“[t]he witness was attempting to converse with her and she was

warning her off.” (Italics added.) Shirley’s lips had been moving

while she looked at the transcript, but defense counsel assured

the court that he considered the movement “inadvertent” and

not an attempt to communicate with Karol. Defendant thus

abandoned his objections below, and the record fails to

demonstrate any improper interference.

Finally, there is no indication of prejudice. At defendant’s

request, the court admonished the jury that the law entitles

witnesses to have someone with them for moral support and that

support persons may not interfere with the witness’s testimony.

(See Myles, supra, 53 Cal.4th at p. 1215.) Although defendant

now complains that the admonition was not repeated each time

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a witness used a support person, he did not object on this ground

below. Indeed, for tactical reasons, defense counsel may have

wished to avoid drawing attention to the support person’s

presence by repeated admonitions. The court also told the jury

to decide the case based on the evidence and not be influenced

by sentiment or sympathy. (CALJIC No. 1.00.) To the extent

defendant now claims this instruction was insufficient, it was

his burden to propose amended or additional instructions. He

did not do so.

3. Instructional Error Claims

Although he raised no objection below, defendant now

argues several of the standard guilt phase instructions violated

his constitutional rights. As he recognizes, we have rejected

these claims many times before. We affirm these holdings.

a. First Degree Murder Instructions

Defendant first argues the court lacked jurisdiction to try

him for first degree murder because the information charged

murder under section 187, which he contends defines only

second degree malice murder. He claims his convictions for an

uncharged crime violated his rights to due process, a jury trial,

and a fair and reliable capital guilt trial. (U.S. Const., 6th, 8th

& 14th Amends.; Cal. Const., art. I, §§ 7, 15–17.) “Similar

claims — whether framed in terms of a lack of jurisdiction,

inadequate notice, erroneous instruction, insufficient proof, or

the absence of jury unanimity — have been rejected before. . . .

[O]ur cases have long made clear that an accusatory pleading

charging malice murder supports conviction of first degree

murder,” whether on a felony-murder or premeditation theory.

(People v. Contreras (2013) 58 Cal.4th 123, 147 (Contreras); see

People v. Sattiewhite (2014) 59 Cal.4th 446, 474 (Sattiewhite);

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People v. Friend (2009) 47 Cal.4th 1, 54 (Friend).) “Malice

murder and felony murder are two forms of the single statutory

offense of murder. Thus, a charge of murder not specifying the

degree is sufficient to charge murder in any degree. The

information also need not specify the theory of murder on which

the prosecution relies at trial.” (Contreras, at p. 147; see People

v. Hughes (2002) 27 Cal.4th 287, 369–370 (Hughes); see also

People v. Witt (1915) 170 Cal. 104, 107–108.)

Nevertheless, defendant argues these principles were

“completely undermined” by People v. Dillon (1983) 34 Cal.3d

441, which described section 189 as “a statutory enactment of

the first degree felony-murder rule in California.” (Id. at p. 472.)

This argument fails. “Because there is only a single statutory

offense of first degree murder [citation], defendant reasons that

the relevant statute must be section 189, not section 187, which

he construes as a definition of second degree murder. Defendant

misreads both Dillon and the statutes. Dillon made it clear that

section 187 serves both a degree-fixing function and the function

of establishing the offense of first degree felony murder. (Dillon,

at pp. 468, 471.) It defines second degree murder as well as first

degree murder. Section 187 also includes both degrees of

murder in a more general formulation. (People v. Witt[, supra,]

170 Cal. [at p.] 108.) Thus, an information charging murder in

the terms of section 187 is ‘sufficient to charge murder in any

degree.’ ” (People v. Harris (2008) 43 Cal.4th 1269, 1294–1295,

fn. omitted (Harris).) We have reaffirmed this rule many times

following our decision in Dillon (see, e.g., Contreras, supra, 58

Cal.4th at p. 148; People v. Jones (2013) 57 Cal.4th 899, 968–969

(Jones); Hughes, supra, 27 Cal.4th at pp. 369–370), and do so

again.

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Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi)

does not compel a different result. As we have previously noted,

“the Apprendi court expressly declined to address the

constitutional implications, if any, of omitting sentencing

factors from accusatory pleadings. (Apprendi, [at p.] 477, fn. 3

[noting that no ‘indictment question’ was properly presented or

actually addressed in the case].)” (Contreras, supra, 58 Cal.4th

at p. 148.) Moreover, because Apprendi and its progeny address

the right to a jury determination of sentencing facts beyond the

elements of the charged offenses, the cases “do not create new

notice requirements for alternative theories of a substantive

offense such as a theory of first degree murder.” (People v. Abel

(2012) 53 Cal.4th 891, 938.) We continue to hold that the

traditional California rule, under which a section 187 charge

“places the defense on notice of, and allows trial and conviction

on, all degrees and theories of murder,” does not violate

Apprendi or the Sixth Amendment. (Contreras, at p. 149.)

b. Failure to Require Unanimity on First Degree

Murder Theory

The jury was instructed on the alternative theories of

premeditation and felony murder. Defendant now claims the

court violated his rights under the Sixth, Eighth, and

Fourteenth Amendments by failing to instruct that the jury

must unanimously agree on a single theory of first degree

murder in order to convict him. Again, as defendant

acknowledges, this claim has been repeatedly rejected. (See,

e.g., Jones, supra, 57 Cal.4th at p. 973; People v. Taylor (2010)

48 Cal.4th 574, 626; People v. Nakahara (2003) 30 Cal.4th 705,

712 (Nakahara).) “ ‘[A]s long as each juror is convinced beyond

a reasonable doubt that defendant is guilty of murder as that

offense is defined by statute, it need not decide unanimously by

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which theory he is guilty.’ ” (Rogers, supra, 57 Cal.4th at p. 339.)

Neither the federal Constitution (see Schad v. Arizona (1991)

501 U.S. 624, 640–642; Harris, supra, 43 Cal.4th at pp. 1295–

1296) nor the Apprendi decision (see People v. Tully (2012) 54

Cal.4th 952, 1023–1024; Nakahara, at pp. 712–713) requires

otherwise. We decline to reconsider this settled precedent.

Further, given the special circumstance findings here, the jury

necessarily reached unanimous agreement that defendant

committed first degree felony murder in the course of a robbery

and burglary. (See Taylor, at p. 626; Harris, at p. 1296.)

c. Juror Misconduct Instruction

Although he did not object below, defendant now claims

the court erred in giving CALJIC former No. 17.41.1, which

instructed, “The integrity of a trial requires that jurors, at all

times during their deliberations, conduct themselves as

required by these instructions. Accordingly, should it occur that

any juror refuses to deliberate or expresses an intention to

disregard the law or to decide the case based on penalty or

punishment or any other improper basis, it is the obligation of

the other jurors to immediately advise the Court of the

situation.” After defendant’s trial, we exercised our supervisory

power in People v. Engelman (2002) 28 Cal.4th 436 to disapprove

the use of this instruction in future criminal trials. We also

concluded the instruction does not violate a defendant’s state or

federal constitutional rights to a jury trial, a unanimous verdict,

or due process. (Id. at pp. 439–440.) Defendant argues the

concerns addressed in Engelman have greater force in capital

trials, but we have repeatedly rejected calls to depart from

Engelman’s constitutional holdings in capital cases. (See, e.g.,

People v. Johnson (2018) 6 Cal.5th 541, 591–592 (Johnson);

People v. Penunuri (2018) 5 Cal.5th 126, 157–158; Rogers, supra,

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57 Cal.4th at pp. 339–340; McKinnon, supra, 52 Cal.4th at

p. 681.) The instruction did not violate defendant’s

constitutional rights and does not require reversal.

d. CALJIC Instructions Regarding Evaluation of

Evidence

Defendant also claims a series of pattern instructions

undermined the state’s burden to prove guilt beyond a

reasonable doubt. He first challenges instructions addressing

the use of circumstantial evidence to prove guilt (CALJIC

No. 2.01), mental state (CALJIC Nos. 2.02, 8.83.1), and special

circumstances (CALJIC No. 8.83). He argues these instructions

required the jury to accept or draw incriminatory inferences if

they appeared reasonable. We will not revisit settled law here.

(See, e.g., Johnson, supra, 6 Cal.5th at p. 592; Harris, supra, 43

Cal.4th at p. 1294; Nakahara, supra, 30 Cal.4th at pp. 713–714.)

We reaffirm that “[t]he circumstantial evidence instructions did

not permit, induce, or compel jurors to convict defendant or to

sustain the special circumstance merely because he reasonably

appeared to have committed the charged crimes. [Citations.]

Nor would the jury, when considering the circumstantial

evidence instructions alongside the reasonable doubt

instruction, somehow still have been misled about the requisite

standard of proof.” (Contreras, supra, 58 Cal.4th at pp. 161–

162.)

Defendant next objects to a series of instructions on the

jury’s evaluation of witness testimony and the weight of

evidence: CALJIC No. 2.21.1 (discrepancies in witness

testimony); CALJIC No. 2.21.2 (witnesses willfully false);

CALJIC No. 2.22 (conflicting testimony); CALJIC No. 2.27

(sufficiency of single witness); and CALJIC No. 8.20 (finding

deliberate and premeditated murder). Defendant argues these

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instructions diluted the state’s burden of proof because they

encouraged the jury to decide issues based on which side had the

stronger evidence. We have rejected these claims before (see,

e.g., McKinnon, supra, 52 Cal.4th at pp. 677–678; Friend,

supra, 47 Cal.4th at p. 53; Nakahara, supra, 30 Cal.4th at

p. 714), and defendant does not persuade us to do otherwise

here. “ ‘ “Jurors are not reasonably likely to draw, from bits of

language in instructions that focus on how particular types of

evidence are to be assessed and weighed, a conclusion overriding

the direction, often repeated in voir dire, instruction, and

argument, that they may convict only if they find the People

have proven guilt beyond a reasonable doubt.” ’ ([People v.]

McKinzie[ (2012)] 54 Cal.4th 1302, 1356–1357.) No reasonable

juror would have ‘parsed’ these instructions and believed that

the People had some lesser burden of proof.” (Contreras, supra,

58 Cal.4th at p. 162.) Nothing in the prosecutor’s closing

argument calls for a different conclusion.

Finally, defendant contends CALJIC No. 2.51 improperly

allowed the jury to determine guilt based on the existence of

motive alone, lessening the state’s burden of proof. The

instruction simply provides that motive, while not an element of

a crime, is a circumstance the jury may consider in determining

guilt. We have consistently rejected defendant’s precise claims

of error (see, e.g., Sattiewhite, supra, 59 Cal.4th at p. 474; Jones,

supra, 57 Cal.4th at p. 971; People v. Snow (2003) 30 Cal.4th 43,

97–98) and now reaffirm those holdings.

B. Penalty Phase Issues

1. Admission of Hearsay

Defendant argues the court improperly admitted hearsay

implicating him in the Spokane murders. He contends this error

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violated his rights to due process, confrontation, and a reliable

penalty verdict. Any error in admitting the evidence was

harmless.

a. Background

During the prosecutor’s questioning, defendant’s

girlfriend Onkhamdy testified that defendant and Giao Ly left

the Spokane apartment where they were staying and later

returned with money and jewelry. As Onkhamdy lay on a couch

facing away from them, she heard defendant, Ly, and one or two

other men dividing money. The prosecutor asked if she heard

“any conversation among them regarding a murder,” but

Onkhamdy replied that all of the men were speaking

Cambodian, a language she did not understand. Questioned

further, Onkhamdy denied telling the investigating officers

something different. The prosecutor tried to impeach her with

notes from her police interview, in which she said she “knew

from the conversation that the subjects had committed a

murder.” Defense counsel objected. He noted that defendant’s

remarks might be admissible as statements of a party if

Onkhamdy could testify that defendant had made the

statement. But instead three or four people were talking “and

we don’t know who said what.” The court overruled the objection

as premature and allowed the prosecutor to ask if Onkhamdy

had told detectives she overheard a discussion about murder

and it made her “nauseous to know what had occurred.”

Onkhamdy said she told the police she felt ill due to her

pregnancy and denied saying anything about people discussing

murder.

The prosecution then called Detective David Dillon, who

was present during Onkhamdy’s interview. Dillon testified that

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Onkhamdy reported hearing defendant and the others

discussing a murder, though she did not say who had mentioned

murder or in what language. The court overruled defendant’s

hearsay objection and denied his motion for mistrial, concluding

the evidence was admissible as an adoptive admission.

b. Discussion

Hearsay is “evidence of a statement that was made other

than by a witness while testifying at the hearing and that is

offered to prove the truth of the matter stated.” (Evid. Code,

§ 1200, subd. (a).) Hearsay is inadmissible unless some

exception to the hearsay rule is satisfied. (Id., subd. (b).) “[A]

trial court has broad discretion to determine whether a party

has established the foundational requirements for a hearsay

exception.” (People v. DeHoyos (2013) 57 Cal.4th 79, 132.)

The challenged testimony involved two layers of hearsay:

(1) Onkhamdy’s statement to police; and (2) the underlying

statement about “murder” in the conversation she described.

Onkhamdy’s statement was admissible as a prior inconsistent

statement. A statement inconsistent with a witness’s trial

testimony “is not made inadmissible by the hearsay rule” (Evid.

Code, § 1235) so long as the witness either had “an opportunity

to explain or to deny the statement” while testifying or has not

been excused from giving further testimony (Evid. Code, § 770,

subd. (a)). These requirements were satisfied. Onkhamdy gave

inconsistent testimony, and she was given an opportunity to

explain her prior statement when she did so. Prior inconsistent

statements admitted under Evidence Code section 1235 may be

considered for their truth as well as for impeachment. (People

v. Homick (2012) 55 Cal.4th 816, 859; People v. Guerra (2006) 37

Cal.4th 1067, 1144, disapproved on another ground in People v.

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Rundle (2008) 43 Cal.4th 76, 151.)19 Accordingly, Onkhamdy’s

statement to police was properly admitted without limitation.

Whether the underlying hearsay from the overheard

conversation was properly allowed is difficult to discern because

details about the conversation are so vague. All we know is that

the topic of murder arose. Without any information about what

was said or by whom, it is unclear whether the foundational

requirements were satisfied for the adoptive admission

exception. (See Evid. Code, § 1221.) However, any error in

admitting the testimony was clearly harmless. Strong evidence

tied defendant to the Spokane murders. The only survivor, four-

year-old Joe Hagan, unequivocally identified defendant as one

of the perpetrators shortly after the crime, and defendant’s

fingerprint was found inside the Hagans’ apartment. Evans

recalled seeing a gun at defendant’s house of the same caliber

used in the shootings. Both Onkhamdy and Kunthea Sar

testified that defendant and Ly went out on the night of the

murders and returned with cash and jewelry, some of which was

later identified as belonging to the victims. In contrast to this

evidence, vague hearsay about defendant’s participation in a

conversation held in a language the witness did not understand

19

People v. Montiel (1993) 5 Cal.4th 877, 929, disapproved

on another ground in People v. Sanchez (2016) 63 Cal.4th 665,

686, footnote 13, suggested that a prior inconsistent statement,

standing alone, is legally insufficient to establish aggravating

conduct in the penalty phase of a capital trial. However, that

idea was based on a holding in People v. Gould (1960) 54 Cal.2d

621, 631, that we have since overruled. (People v. Cuevas (1995)

12 Cal.4th 252, 257.) We need not decide whether Montiel’s

observations have continuing vitality because significant

evidence beyond Onkhamdy’s statement implicated defendant

in the Spokane crimes.

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was unlikely to have influenced the jury’s decision. Moreover,

the prosecutor never mentioned the “murder” conversation in

closing argument. And there was significant aggravating

evidence apart from the Spokane crimes, including defendant’s

involvement in two fatal drive-by shootings. The jury was also

entitled to consider the grim facts of the charged offenses and

the Sacramento murders. Considering the quantity and quality

of the aggravating evidence, it is not reasonably possible the

jury would have reached a different penalty verdict absent any

asserted error. (See People v. Pearson (2013) 56 Cal.4th 393,

472.)

2. Exclusion of Scrappy’s Inculpatory Statements

Defendant attempted to call “Scrappy” Tran to testify

about his role in the Elm Street crimes. On counsel’s advice,

Scrappy refused to testify. Defendant then sought to introduce

out-of-court statements in which Scrappy claimed he had killed

Trinh and the three Nguyen children. The court excluded the

evidence as insufficiently reliable to satisfy the hearsay

exception for statements against interest. (Evid. Code, § 1230.)

Defendant claims error under state and federal law, asserting

violations of his constitutional rights to present mitigating

evidence, obtain a fair trial, and have a reliable penalty

determination. Although we agree with the trial court that the

issue is close, we conclude the ruling was an appropriate

exercise of discretion.

a. Background

Scrappy was a minor at the time of the Elm Street crimes.

He pled guilty to 10 counts in exchange for a sentence of 50 years

to life imprisonment. A defense investigator interviewed him at

Folsom State Prison during the guilt phase of defendant’s trial.

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The interview was taped, but Scrappy asked for the recorder to

be turned off before discussing the Elm Street murders. Scrappy

then said that after “the man” was shot, “he lost it or went crazy,

shot the woman, [then] ran into the bedrooms and shot the

children.” He gave no further details about the shootings and

did not indicate that he had been the one to shoot “the man.” He

told the investigator he was willing to testify in defendant’s trial

because he had become a Christian, felt responsible for the

murders, and did not want defendant to be blamed for them all.

However, he worried how other inmates would treat him if he

admitted killing a woman and children. He also worried that he

would incur new charges from an unrelated shooting.

A second defense investigator interviewed Scrappy shortly

before the penalty trial. Scrappy again declined to be taped. He

described the planning and entry into the Nguyen home in a

manner similar to the guilt phase testimony of Evans and Karol.

Inside the house, the father argued with defendant, whom the

investigator called “Peter.” According to the investigator’s

notes, Scrappy said: “The next thing I see is Peter acting weird.

I hear a shot and Peter is standing over the father looking weird.

Then I go crazy and start shooting the family. Quote: I killed

the mother and the kids. I don’t know why. I just went crazy.

It’s all fog.” When pressed for more details, he shook his head

and repeated, “I was in a fog.”

Scrappy’s appointed counsel advised him not to testify.

Although Scrappy was serving a very long sentence, his trial

attorney thought “there might be . . . a glimmer” of hope that he

could obtain parole in 40 years, and an admission to killing

children could “doom” his chances. He was also subject to

prosecution for an additional uncharged murder. Fourteen-

year-old Trang Vu’s murder was initially charged against

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defendant, but the prosecution dismissed it at the close of the

penalty phase. Those accusations were not included in

Scrappy’s plea agreement.

Defendant attempted to introduce Scrappy’s statements

as declarations against penal interest. However, the court

determined the foundation for that exception was not satisfied.

The court observed Scrappy was “a proven liar” with no

credibility. His current assertions were “completely contrary” to

his previous statements to the police and investigators.

Although he might have been motivated to clear his conscience

by telling the truth, he might also have wanted to gain favor

with fellow gang members by making up a story to exonerate

their associate “from some very serious acts.” The court also

questioned whether the statements were truly against penal

interest, given that Scrappy had pled guilty to all the murders,

received a lengthy sentence, and his plea was final. Considering

all the circumstances, the court did not find the hearsay

statements sufficiently trustworthy to be admitted under the

claimed exception.

b. Discussion

Evidence Code section 1230 sets out the hearsay exception

for statements against interest: “Evidence of a statement by a

declarant having sufficient knowledge of the subject is not made

inadmissible by the hearsay rule if the declarant is unavailable

as a witness and the statement, when made, was so far contrary

to the declarant’s pecuniary or proprietary interest, or so far

subjected him to the risk of civil or criminal liability . . . , or

created such a risk of making him an object of hatred, ridicule,

or social disgrace in the community, that a reasonable man in

his position would not have made the statement unless he

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believed it to be true.” The rationale for the exception “is that ‘a

person’s interest against being criminally implicated gives

reasonable assurance of the veracity of his statement made

against that interest,’ thereby mitigating the dangers usually

associated with the admission of out-of-court statements.”

(People v. Grimes (2016) 1 Cal.5th 698, 711 (Grimes).) To satisfy

the exception, the proponent “ ‘must show “that the declarant is

unavailable, that the declaration was against the declarant’s

penal [or other] interest, and that the declaration was

sufficiently reliable to warrant admission despite its hearsay

character.” ’ ” (People v. Geier (2007) 41 Cal.4th 555, 584 (Geier);

see People v. Duarte (2000) 24 Cal.4th 603, 610–611 (Duarte).)

We review the trial court’s ruling for abuse of discretion. (People

v. Westerfield (2019) 6 Cal.5th 632, 704 (Westerfield); Grimes, at

p. 711.) Its decision will not be disturbed on appeal “ ‘except on

a showing the trial court exercised its discretion in an arbitrary,

capricious, or patently absurd manner that resulted in a

manifest miscarriage of justice.’ ” (People v. Brown (2003) 31

Cal.4th 518, 534 (Brown); see Geier, at p. 585.)

The parties agree Scrappy became unavailable as a

witness when he asserted the privilege against self-

incrimination. (See Evid. Code, § 240, subd. (a)(1).) But support

for the hearsay exception’s other two requirements is not so

clear. As the trial court observed, it is questionable whether

Scrappy’s claim to have shot Trinh and the Nguyen children was

truly against his interests. “In determining whether a

statement is truly against interest within the meaning of

Evidence Code section 1230, and hence is sufficiently

trustworthy to be admissible, the court may take into account

not just the words but the circumstances under which they were

uttered, the possible motivation of the declarant, and the

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declarant’s relationship to the defendant.” (People v. Frierson

(1991) 53 Cal.3d 730, 745 (Frierson).) Scrappy’s statements

implicated him in serious criminal activity, and the record

suggests he personally feared opprobrium from the prison

community and the public at large for becoming known as a

child killer. However, he had already been convicted and was

serving a lengthy sentence for the same crimes. Belatedly

claiming that he was the primary shooter at Elm Street added

little to his own admission of guilt and could not result in

additional punishment. Defendant argues the admission would

have ruined Scrappy’s chances of obtaining parole, but the only

evidence that Scrappy would have “a glimmer” of such hope 40

years later was hearsay that his current counsel repeated

hearing from his trial counsel. Similarly, Scrappy was

purportedly concerned about the effect his statement might

have on a motion for a new trial, in the event he later decided to

withdraw his guilty plea. The court could well conclude these

potential consequences were too speculative or remote to

impinge on penal interest for purposes of Evidence Code

section 1230.

“[E]ven when a hearsay statement runs generally against

the declarant’s penal interest . . . , the statement may, in light

of circumstances, lack sufficient indicia of trustworthiness to

qualify for admission.” (Duarte, supra, 24 Cal.4th at p. 614.)

“ ‘The decision whether trustworthiness is present requires the

court to apply to the peculiar facts of the individual case a broad

and deep acquaintance with the ways human beings actually

conduct themselves in the circumstances material under the

exception.’ ” (Frierson, supra, 53 Cal.3d at p. 745.) The trial

court here did so, and it did not abuse its discretion in

concluding the statements were too unreliable to be admitted.

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Scrappy did not take responsibility for the shootings until

he was interviewed by defendant’s investigators, years after the

crimes occurred. “The significant passage of time is a relevant

circumstance to be considered when determining a statement’s

reliability.” (People v. Masters (2016) 62 Cal.4th 1019, 1057; see

Frierson, supra, 53 Cal.3d at p. 745.) In addition, as the court

observed, Scrappy was a demonstrated liar, and his current

account was “completely contrary” to all of his previous

statements. In the past, Scrappy had not only denied his own

responsibility to both the police and investigators, but at one

point he had falsely claimed Pan was personally involved in the

shootings. That assertion was later disproved when evidence

indisputably showed Pan was nowhere near the crime scene.

Inconsistent accounts cast doubt on the reliability of a

declarant’s statements. (See Geier, supra, 41 Cal.4th at p. 585.)

Although defendant did not raise the point below, he now

contends the court should have considered the reliability of

Scrappy’s account in light of corroborating evidence from the

trial. Before announcing its decision, the court remarked that

appellate case law prohibited it from using trial evidence as

corroboration of a statement against interest’s truthfulness,

remarking that it would be impermissible bootstrapping to look

beyond the circumstances surrounding the declaration’s

utterance. It appears the court was referencing the United

States Supreme Court’s decision in Idaho v. Wright (1990) 497

U.S. 805. There, under its pre-Crawford20 jurisprudence, the

high court held the confrontation clause requires that “hearsay

evidence used to convict a defendant must possess indicia of

reliability by virtue of its inherent trustworthiness, not by

20

Crawford v. Washington (2004) 541 U.S. 36.

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reference to other evidence at trial.” (Wright, at p. 822.) The

court reasoned that “the use of corroborating evidence . . . would

permit admission of a presumptively unreliable statement by

bootstrapping on the trustworthiness of other evidence at trial,

a result” that was at odds with the confrontation clause. (Id. at

p. 823.) Wright was addressing the constitutional requirements

governing admission of a hearsay statement against a criminal

defendant, however. Because defendant was the one seeking to

introduce a hearsay statement against interest here, there was

no confrontation issue, and the trial court was free to examine

all facts bearing upon the statement’s trustworthiness. (See

People v. Cudjo (1993) 6 Cal.4th 585, 607; Frierson, supra, 53

Cal.3d at p. 745.) This was precisely the sort of mistake the

court could have easily corrected if the issue had been brought

to its attention. Nevertheless, defendant said nothing, and

thereby forfeited the issue on appeal. (See People v. Romero

(2008) 44 Cal.4th 386, 411.)21

21

That said, we are not persuaded that the court’s mistake

led it to abuse its discretion. Defendant argues Scrappy’s

account was corroborated by evidence that two guns were used

in the Elm Street crimes. Because a shell casing that came from

a second gun was not available for testing until the close of the

guilt phase, the evidence initially established that a single gun

was used in the shootings. (See ante, fn. 7.) Scrappy’s statement

was consistent with the later discovery that one bullet was fired

from a second gun. However, this alignment between Scrappy’s

statement and the ballistics evidence does not necessarily mean

his assertion that he shot all but one of the victims was truthful.

It is beyond dispute that Scrappy participated in the crimes.

Unlike Karol and Evans, he was inside the house with

defendant the entire time. He would have known how many

guns were fired.

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In addition, although admitting to the murder of a mother

and her children would likely subject a person to “hatred,

ridicule, or social disgrace” (Evid. Code, § 1230) within the

general community, certain aspects of Scrappy’s particular

community meant he could actually benefit from making a false

confession. Defendant was a high-ranking gang leader; Scrappy

a juvenile and relative newcomer to the gang. Scrappy might

have believed that taking the blame for a more senior member’s

crimes, thus helping him evade the death penalty, could

enhance his position in the gang or help to secure his safety in

prison. Because he faced little to no risk of additional penal

consequences, the possibility of general opprobrium might have

been worth these potential benefits. This was the scenario we

envisioned in Grimes when we observed that “sometimes a

declarant who makes an inculpatory statement may have a

substantial incentive to exculpate others. A member of a

criminal street gang, for example, may choose to take the fall for

fellow gang members by making a confession that exculpates

them. A trial court in that situation may reasonably conclude

that the declarant’s incentive to protect his friends renders the

exculpatory portions of the statement inadmissible.” (Grimes,

supra, 1 Cal.5th at p. 716; see Frierson, at p. 745.) The court did

not abuse its discretion in concluding Scrappy’s hearsay

statements were not sufficiently trustworthy to be admitted as

statements against interest.

Defendant protests that it was fundamentally unfair for

the court to permit the prosecutor “to build his entire case on

the testimony of self-serving co-defendants whose various

stories changed continuously” but then exclude the statements

of another codefendant as unreliable. This objection overlooks

the most crucial difference between Scrappy’s account and those

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of Karol and Evans. Karol and Evans testified in court. They

were subject to extensive cross-examination, which allowed the

jury to evaluate their truthfulness. Scrappy did not testify. His

unavailability for cross-examination is why the court had a duty

to carefully scrutinize the reliability of his out-of-court

statements. “ ‘[A] defendant does not have a constitutional right

to the admission of unreliable hearsay statements.’ ” (People v.

Ayala (2000) 23 Cal.4th 225, 269.) The court’s ruling was

neither statutory nor constitutional error. (See Westerfield,

supra, 6 Cal.5th at p. 705.)

3. Instructional Error Claims

Defendant next argues the court should have modified the

standard penalty-phase instructions to include additional

concepts and should have refused to give a special instruction

regarding victim impact. The instructions given were accurate

and appropriate under settled law. There was no error.

a. Refusal to Modify CALJIC No. 8.85

“CALJIC No. 8.85 instructs the jury regarding the

aggravating and mitigating factors listed in section 190.3,

factors (a) through (k), which the jury must consider in deciding

the penalty to be imposed on a capital defendant.” (People v.

Linton (2013) 56 Cal.4th 1146, 1210.) Defendant argues the

court erred in refusing several proposed modifications.

First, defendant contends the court erred in refusing to

instruct the jury that it could consider lingering or residual

doubt regarding guilt as a mitigating factor in setting penalty.

As he recognizes, however, “we have frequently and consistently

rejected claims that the trial court is required to instruct on

lingering doubt.” (People v. Gonzales and Soliz (2011) 52 Cal.4th

254, 325; see People v. Howard (2010) 51 Cal.4th 15, 38.) The

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concept is sufficiently covered in CALJIC No. 8.85 and other

instructions typically given in capital cases. (People v. Enraca

(2012) 53 Cal.4th 735, 767; People v. Panah (2005) 35 Cal.4th

395, 497 (Panah).)

Next, defendant asserts the court improperly rejected two

modifications he proposed regarding how the jury should

consider his age and maturity. Although he was 22 years old

when he committed the charged crimes, the defense argued a

traumatic childhood hindered his cognitive and emotional

development. Defendant first sought an instruction that the

jury could consider his “psychological immaturity” as a

mitigation factor. The court did not err in refusing this

expansion. We have repeatedly held courts are not required to

instruct that age is relevant only in mitigation. (People v.

Burney (2009) 47 Cal.4th 203, 257–258; Panah, supra, 35

Cal.4th at pp. 499–500.) The instructions as a whole permitted

the jury to consider both defendant’s age and his psychological

immaturity as mitigating considerations. (People v. Booker

(2011) 51 Cal.4th 141, 194; Burney, at p. 258.) Defendant’s

second proposed modification would have related that people

under age 18 are not eligible for the death penalty or a sentence

of life without parole. We upheld the rejection of a similar

instruction, proposed by a 19-year-old defendant, in Brown,

supra, 31 Cal.4th 518. We noted that “ ‘[a]lthough instructions

pinpointing the theory of the defense might be appropriate, a

defendant is not entitled to instructions that simply recite facts

favorable to him.’ (People v. Gutierrez (2002) 28 Cal.4th 1083,

1159.) By instructing the jury that those younger than 18 years

old are legally ineligible for the death penalty, the proffered

instruction highlighted a single, mitigating aspect of

defendant’s age — that he had only recently become eligible for

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the ultimate penalty — and was thus improperly

argumentative.” (Id. at pp. 564–565.) Defendant’s proposed

modification was appropriately refused here for the same

reason.

Defendant also proposed advising the jury that it could

consider the fact that his accomplices received more lenient

sentences. The court did not err in refusing this request. “We

have consistently held that evidence concerning coparticipants’

sentences is properly excluded from the penalty phase of a

capital trial because such evidence is irrelevant.” (People v.

Moore (2011) 51 Cal.4th 1104, 1141; see People v. Thomas (2012)

54 Cal.4th 908, 940.) “The focus in a penalty phase trial of a

capital case is on the character and record of the individual

offender. The individually negotiated disposition of an

accomplice is not constitutionally relevant to [a] defendant’s

penalty determination.” (People v. Johnson (1989) 47 Cal.3d

1194, 1249.) Defendant argues a different rule should apply in

his case because the jury, having rejected the personal use

firearm enhancements in the guilt phase, necessarily concluded

one of his accomplices was the actual shooter. This logic fails.

The guilt-phase verdict merely reveals that the jury determined

the evidence was insufficient to prove which attacker fired the

fatal shot at any particular victim. Nothing about the verdict,

nor the facts of this case, made the accomplices’ sentences

relevant to the jury’s determination of defendant’s proper

punishment.

Finally, defendant argues the court should have approved

his request to supplement CALJIC No. 8.85 with an admonition

not to decide penalty “by the simple process of counting the

number of [aggravating and mitigating] circumstances on each

side.” The jury was instructed with this same concept in

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CALJIC No. 8.88, which explained that the “weighing of

aggravating and mitigating circumstances does not mean a

mere mechanical counting of factors on each side of an

imaginary scale or the arbitrary assignment of weights to any of

them.” Defendant complains that CALJIC No. 8.88 was read

after closing arguments and was not given with the other

instructions. He overlooks the fact that his own counsel

specifically requested that the court present the instructions in

the order it did. There was no error.

b. Refusal to Modify CALJIC No. 8.88

Defendant asked that CALJIC No. 8.88 be modified to add

that jurors could return a verdict of life imprisonment without

parole even if they found that one or more aggravating factors

outweighed the mitigating factors. Although the court was

initially inclined to adopt a version of defendant’s proposal, it

ultimately decided to give the standard, unmodified instruction.

Defendant now claims this refusal to modify CALJIC No. 8.88

was error. We disagree.

It is settled that CALJIC No. 8.88 accurately describes the

capital jury’s weighing task and is not unconstitutional. (People

v. Dykes (2009) 46 Cal.4th 731, 816–817.) Specifically, the

instruction is not constitutionally flawed “for failing to

affirmatively allow the jury to impose a life sentence even if the

aggravating factors outweigh the mitigating ones.” (People v.

Hovarter (2008) 44 Cal.4th 983, 1028.) Nor is the trial court

obligated to instruct that the jury cannot return a death

judgment unless it finds aggravating factors “ ‘outweigh[]’ ”

mitigating factors. (Panah, supra, 35 Cal.4th at p. 498.) “[T]he

standard version of CALJIC No. 8.88, read as a whole,

accurately describes the individualized, normative nature of the

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sentencing determination, and properly guides the jury’s

discretion in this regard.” (Contreras, supra, 58 Cal.4th at

p. 170.) Defendant contends his modification was “better” and

“more accurately stated the law.” Even if this were true, it

would not mean instructing the jury with unmodified CALJIC

No. 8.88 was error. It was not.

c. Pinpoint Instruction on Child Victim Impact

At the prosecution’s request, the court instructed the jury

that it could “consider the impact [of] the defendant’s crime on

the surviving victim, Dennis Nguyen, . . . as part of the

circumstances of the crime of which defendant was convicted”

under section 190.3, factor (a). Although it is unclear whether

he raised an objection below, defendant now contends the

instruction was argumentative because it improperly singled

out one side’s evidence for specific mention.

We have rejected similar claims (People v. Souza (2012) 54

Cal.4th 90, 139; People v. Harris (2005) 37 Cal.4th 310, 358–

359), and do so again. The jury was entitled to consider as a

circumstance of defendant’s capital crimes the harm caused to

the victims’ families. (§190.3, factor (a); People v. Edwards

(1991) 54 Cal.3d 787, 833–836.) Moreover, the jury’s

consideration of victim impact “need not be based upon specific

testimony of the victim’s family members describing their

emotions.” (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1017.)

The prosecutor did not present victim impact evidence, but his

closing argument asked the jury to consider how defendant’s

crimes affected Dennis. The pinpoint instruction appropriately

informed the jury how it could take this victim impact into

account. (See Harris, at p. 358.)

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4. Constitutionality of Death Penalty Law

Defendant raises a number of familiar challenges to the

constitutionality of California’s death penalty statute and

instructions. While acknowledging that we have previously

rejected all of these arguments, he presents them again to urge

reconsideration and preserve the issues for federal review. We

decline to reconsider our previous holdings that:

• The class of offenders eligible for the death penalty is not

impermissibly broad. (People v. Potts (2019) 6 Cal.5th 1012,

1060 (Potts); People v. Reed (2018) 4 Cal.5th 989, 1018.)

• Section 190.3, factor (a), which permits aggravation based on

the circumstances of the crime, does not result in arbitrary

and capricious imposition of the death penalty. (People v.

Rhoades (2019) 8 Cal.5th 393, 455 (Rhoades); People v.

Capers (2019) 7 Cal.5th 989, 1013 (Capers).)

• California’s death penalty scheme does not violate the federal

Constitution for failing to require: written findings (People

v. Molano (2019) 7 Cal.5th 620, 678 (Molano)); unanimous

findings as to the existence of aggravating factors or

unadjudicated criminal activity (Capers, supra, 7 Cal.5th at

p. 1013); or findings beyond a reasonable doubt as to the

existence of aggravating factors (other than factor (b) or (c)

evidence), that aggravating factors outweigh mitigating

factors, or that death is the appropriate penalty (People v.

Fayed (2020) 9 Cal.5th 147, 213 (Fayed); People v. Krebs

(2019) 8 Cal.5th 265, 350 (Krebs)). These conclusions are not

altered by Apprendi, supra, 530 U.S. 466, Ring v. Arizona

(2002) 536 U.S. 584, or Hurst v. Florida (2016) 577 U.S. 92.

(Rhoades, supra, 8 Cal.5th at p. 455; Capers, at pp. 1013–

1014.)

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• The prosecution has no obligation to bear a burden of proof

or persuasion because sentencing is “an inherently moral and

normative function, and not a factual one amenable to burden

of proof calculations.” (People v. Winbush (2017) 2 Cal.5th

402, 489; see People v. Hoyt (2020) 8 Cal.5th 892, 954 (Hoyt);

Capers, supra, 7 Cal.5th at pp. 1014–1015.) Further, “ ‘the

trial court is not required to explicitly tell the jury that

neither party bears the burden of proof.’ ” (Potts, supra, 6

Cal.5th at p. 1060.)

• The federal Constitution does not require an instruction that

life is the presumptive penalty. (People v. Beck and Cruz

(2019) 8 Cal.5th 548, 670 (Beck and Cruz)); Capers, supra, 7

Cal.5th at p. 1016.)

• CALJIC No. 8.88 is not impermissibly flawed because it does

not require a finding that death is the “appropriate” penalty

(see People v. Leon (2020) 8 Cal.5th 831, 853; Beck and Cruz,

supra, 8 Cal.5th at p. 671), or because it does not require a

life sentence if the jury finds mitigating factors outweigh

aggravating ones (Capers, supra, 7 Cal.5th at p. 1016;

Johnson, supra, 6 Cal.5th at p. 594). The instruction’s use of

the phrase “so substantial” does not make it overbroad or

unconstitutionally vague. (See Beck and Cruz, at p. 671;

People v. Ghobrial (2018) 5 Cal.5th 250, 293.)

• CALJIC No. 8.85’s use of the words “extreme” and

“substantial” does not impermissibly constrain the jury’s

consideration of mitigating circumstances. (See Molano,

supra, 7 Cal.5th at p. 678; People v. Rices (2017) 4 Cal.5th 49,

94.) The court was not constitutionally required to delete

inapplicable sentencing factors, identify which factors are

aggravating or mitigating, or instruct that certain factors are

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Opinion of the Court by Corrigan, J.

relevant only for mitigation. (Krebs, supra, 8 Cal.5th at

p. 351; Potts, supra, 6 Cal.5th at p. 1061.)

• The federal Constitution does not require intercase

proportionality review. (Hoyt, supra, 8 Cal.5th at p. 955;

Rhoades, supra, 8 Cal.5th at pp. 455–456.)

• The death penalty law does not violate equal protection

because it provides different procedures for capital and

noncapital defendants. (Fayed, supra, 9 Cal.5th at p. 214;

Rhoades, supra, 8 Cal.5th at p. 456.)

• California’s capital sentencing scheme does not violate

international law or the Eighth Amendment. (Beck and

Cruz, supra, 8 Cal.5th at p. 671; Molano, supra, 7 Cal.5th at

p. 679.)

C. Restitution Fine

At the time of defendant’s crimes, section 1202.4,

subdivision (b) required the court to impose a felony restitution

fine between $200 and $10,000. Although the fine was

mandatory, a defendant’s inability to pay could be considered in

setting the amount. (§ 1202.4, former subd. (d).) In considering

defendant’s plea for a reduced fee, the court observed the

question was whether to exercise mercy to allow defendant “to

get whatever benefits he might receive from his income at the

prison during his stay there.” It ultimately ordered him to pay

the maximum fine of $10,000. Defendant now claims this order

was an abuse of discretion because it was “based on the fiction”

that he could receive income while in prison.

These arguments misapprehend the burden of proof.

Under governing law, it is the defendant who must “bear the

burden of demonstrating his or her inability to pay.” (§ 1202.4,

subd. (d).) As in other capital cases, defendant “contends his

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indigence is established by the fact that he was appointed

counsel and provided funds for expert witnesses and

investigators, and because he assertedly has no earning

potential. However, the fact that he could not afford the cost of

the defense in a capital case does not establish that he cannot

pay these fines.” (People v. Miracle (2018) 6 Cal.5th 318, 356.)

Defendant “points to no evidence in the record supporting his

inability to pay, beyond the bare fact of his impending

incarceration.” (People v. Gamache (2010) 48 Cal.4th 347, 409.)

The record indicates the trial court was aware of its duty to

consider defendant’s ability to pay the fine but exercised its

discretion to impose the maximum amount. Considering the

gravity of defendant’s offenses and the losses he inflicted on

multiple victims (see § 1202.4, subd. (d)), we cannot conclude

this order was an abuse of discretion. (See Potts, supra, 6

Cal.5th at p. 1057.)

Nor is there merit to defendant’s claim that the court

violated Apprendi, supra, 530 U.S. 466 in imposing the fine

without jury findings. Apprendi holds that: “Other than the fact

of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.” (Id.

at p. 490.) The rule can also be implicated when criminal fines

are imposed. (Southern Union Co. v. United States (2012) 567

U.S. 343, 346.) However, Apprendi does not apply to the setting

of a fine under section 1202.4. As we have previously explained,

this mandatory restitution fine “is properly understood as part

of the maximum penalty statutorily authorized by a jury’s

finding that the defendant is guilty of a felony.” (People v. Wall

(2017) 3 Cal.5th 1048, 1076.) In imposing the fine, a court does

not make any factual finding that increases the range of

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Opinion of the Court by Corrigan, J.

penalties to which the defendant is exposed. It simply sets a

fine within the prescribed statutory range. (People v. Henriquez

(2017) 4 Cal.5th 1, 47.) “Its ruling therefore raises no concerns

under Apprendi.” (Id. at pp. 47–48.)22

D. Cumulative Error

Finally, defendant argues errors in his trial were

cumulatively prejudicial. We assumed potential errors in the

court’s failure to admonish support persons each time they

accompanied a witness and in the admission of hearsay at the

penalty phase. We found no reasonable possibility either

assumed error could have affected the verdict and now conclude

no cumulative prejudice rendered defendant’s trial unfair. (See,

e.g., Potts, supra, 6 Cal.5th at p. 1058.)

22

Defendant also argues his obligation to pay the fine should

be stayed pending the finality of his automatic appeal, but, as

he recognizes, an appeal to this court “stays the execution of the

judgment in all cases where a sentence of death has been

imposed.” (§ 1243.) No additional stay is required.

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PEOPLE v. CHHOUN

Opinion of the Court by Corrigan, J.

III. DISPOSITION

The judgment is affirmed.

CORRIGAN, J.

We Concur:

CANTIL-SAKAUYE, C. J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

GROBAN, J.

KIM, J.*

__________________________

* Associate Justice of the Court of Appeal, Second Appellate

District, Division Five, assigned by the Chief Justice pursuant

to article VI, section 6 of the California Constitution.

73

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Chhoun

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S084996

Date Filed: February 11, 2021

__________________________________________________________________________________

Court: Superior

County: San Bernardino

Judge: Bob N. Krug

__________________________________________________________________________________

Counsel:

Michael J. Hersek and Mary K. McComb, State Public Defenders, under appointments by the Supreme

Court; Denise Anton and Alexander Post, Deputy State Public Defenders, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney

General, Lance E. Winters, Chief Assistant Attorney General, Joseph P. Lee and Toni R. Johns Estaville,

Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Alexander Post

Deputy State Public Defender

1111 Broadway, 10th Floor

Oakland, CA 94607-4139

(510) 267-3300

Toni R. Johns Estaville

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 269-6166