Opinion
C093749
10-10-2022
THE PEOPLE, Plaintiff and Respondent, v. DAVID KHOUNY PECH, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. STKCRFE20170013837)
RENNER, J.
A jury found defendant David Khouny Pech guilty of first degree murder of S.K. (count 1) and attempted murder of S.B. (count 2). The jury found true with respect to both counts that defendant personally used a firearm (Pen. Code, § 12022.5, subd. (a))and personally and intentionally discharged a firearm and proximately caused great bodily injury or death (§ 12022.53, subd. (d)). The jury also found true the special circumstance that defendant intentionally killed S.K. by means of lying in wait. (§ 190.2, subd. (a)(15).)
Undesignated statutory references are to the Penal Code.
The court imposed a total term of life without the possibility of parole plus 57 years to life in prison: life without the possibility of parole plus 25 years to life for the section 12022.53, subdivision (d) firearm enhancement for count 1; and seven years to life plus 25 years to life for the section 12022.53, subdivision (d) firearm enhancement for count 2.
The trial court struck the section 12022.5, subdivision (a) firearm enhancements. The abstract of judgment incorrectly reflects that these enhancements were stayed. The oral pronouncement controls and therefore we will order the trial court to correct the abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.)
On appeal, defendant argues: (1) the prosecutor committed misconduct in closing argument; (2) there was insufficient evidence to support the jury's true finding on the special circumstance of lying in wait; (3) his sentence amounts to cruel and unusual punishment; and (4) the cumulative effect of the alleged errors necessitates reversal. We will affirm the judgment.
I. BACKGROUND
On September 7, 2017, S.B. was living with his son, Bruce, in Stockton. S.K. was staying in the triplex unit next door.
That morning, defendant texted an unknown number, "Is the 29 home," and received an affirmative reply. At around 5 p.m., defendant texted an unknown number, "Come 2 15 clip." He received the response, "Ok I'm let him know."
At around 8:00 p.m., defendant came to S.B.'s house in a Mercedes and asked about marijuana. Defendant refers to S.B. as an uncle, but they are not related. Both S.K. and S.B. had marijuana grows. Defendant asked for 50 pounds. S.B. testified that amount of marijuana was worth about $50,000. S.B. did not have it, but he told defendant that S.K. might.
At about 10:00 p.m., S.B. and S.K. exchanged text messages. S.B. and defendant had a short phone call at 10:03 p.m. S.B. also called defendant at 10:09 p.m. and 10:17 p.m., but defendant did not answer. S.K. texted S.B. at 10:19 p.m., asking, "Bong, can you call, check they done?" According to S.B., "bong" means brother in Cambodian. At 10:21, S.B. texted defendant, "You on the way yet?" Defendant replied that he was four minutes away. At about 10:23 p.m., two shadows moved by a Mercedes on S.B.'s street. At 10:24 p.m., defendant called S.B. and said, "I'm outside." S.B. and S.K. left their triplex units at the same time and walked toward the driveway together. When they reached the garbage cans, defendant started shooting at S.B. Defendant had come out from the driver's side of S.B.'s parked van. The shooting lasted about 10 to 15 seconds. At 10:28 p.m., Bruce called and then texted defendant to say, "They're shooting," and he did not know where his dad was. About eight minutes later, defendant asked if everything was okay. Bruce replied that his father had been shot and they were going to the hospital. More than one hour and 45 minutes later, defendant replied that he "got blurp" and asked if S.B. was okay. Bruce testified "blurp" meant to be pulled over by the police.
S.B. suffered multiple gunshot wounds. So did S.K., including a fatal gunshot wound to the chest.
Sixteen .9 millimeter shell casings and ten .10 millimeter casings were recovered from the scene. Law enforcement found a Glock 29 .10 millimeter pistol while investigating a different murder. It was loaded with a 15-round magazine. The prosecution's expert on firearm and toolmark identification opined that two firearms were used in the shooting, and the .10 millimeter cartridge cases were fired by the recovered Glock 29 .10 millimeter pistol.
II. DISCUSSION
A. Alleged Prosecutorial Error
1. Closing Argument
During closing argument, the prosecutor read various text messages, including those set forth above, and argued about what the messages meant. Defense counsel objected that the prosecutor's comments shifted the burden of proof and referred to matters that were not in evidence:
"[PROSECUTOR]: We look at the communication from the defendant's phone on the day of the murder.
" 'Is the 29 home?' In the morning, this is from [defendant's phone] to unknown person ....We don't know who-we don't know who it is to, but we know who it is from.
"The 29, our murder weapon is a Glock 29.
"Another text message later in the day, 4:54 p.m., 'Come 2 15 clip.' What is in [People's Exhibit No.] 166, murder weapon, a .15 clip. This is it, this is the 29 when he's talking about 'Is the 29 home?' We haven't heard any other explanation. This is the only reasonable explanation you're going to hear about
"[DEFENSE COUNSEL]: I object, sounds like he's trying to shift the burden to me.
"THE COURT: Defense has no burdens here. This is argument. Remember that defense doesn't have the burden, the burden is solely on [the prosecutor].
"[PROSECUTOR]: 'Is the 29 home,' murder weapon is a Glock 29.
"We see at 10:19 this is S[.K.] texting S[.B.], 'Bong[,] can you call, check they done.' This is in reference to the 50-pound marijuana deal that was going to go on. They done. He's checking on where is my 50,000 dollars.
"[DEFENSE COUNSEL]: I object to that. There is no evidence of that at all.
"THE COURT: He's drawing inferences from it, overruled.
"[PROSECUTOR]: We see the text messages, 'You on the way yet?' 'Yes, four minutes away.' He texts S[.K.] says he's coming.
"We have at 10:24 the last communication that is ever made between the two. And what does S[.B.] tell you, he says, 'I'm outside, come outside.'
"We see at 10:29 this is when Bruce starts texting the defendant. These are all those . . . text messages with the defendant. There is a gap between 11:05 and 12:53. Over an hour and 45 minutes he says, 'I got blurp. Is he okay?['] If he did-'blurp' means gets pulled over. You would have heard about that if he had got pulled over
"[DEFENSE COUNSEL]: Shifting the burden to me, I object to that.
"THE COURT: This is argument. He's drawing his inferences. [¶] Remember the defense has no burden whatsoever.
"[¶] . . . [¶]
"[PROSECUTOR]: There is no conversations between 11:05 and 12:53, for an hour and 45 minutes, and then the defendant says, 'I got blurp.' [¶] Why is there no communication for an hour and 45 minutes? [¶] We know he never contacted S[.B.] again after 10:24. [¶] If he's his uncle, so concerned with him, why no contact? [¶] It wasn't because he got pulled over by the police, the blurp, I got blurp.
"Defense, they don't have to do anything. They don't have to call a single witness in the case. They don't have to be in the room. I have to prove this case beyond a reasonable doubt. One logical witness would be an officer who pulled over.
"[DEFENSE COUNSEL]: Again, that shifts the burden to me. It's an improper argument.
"THE COURT: There is no burden shifting here. Defense has absolutely no burden whatsoever.
"[PROSECUTOR]: We heard from a lot of officers. We didn't hear any officers testifying about any traffic stop that day.
"[DEFENSE COUNSEL]: Same objection.
"[¶] . . . [¶]
"THE COURT: Overruled."
Later, defense counsel successfully objected to an additional comment regarding one of the text messages:
"[PROSECUTOR]: We see the text message from . . . S[.K.] to S[.B.], 'Bong, can you call, check they done' about the marijuana transaction, 'Are they done? Where's the money?' [¶] He testified he was supposed to bring the money back to S[.K]. The text is
"[DEFENSE COUNSEL]: That was objected to. I think that was stricken. I'm going to object to that. There is no evidence of that.
"THE COURT: Sustained."
2. Applicable Legal Standards
"Advocates are given significant leeway in discussing the legal and factual merits of a case during argument. [Citation.] However, 'it is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its . . . obligation to overcome reasonable doubt on all elements [citation].'" (People v. Centeno (2014) 60 Cal.4th 659, 666.) Further, "mischaracterizing the evidence is misconduct." (People v. Hill (1998) 17 Cal.4th 800, 823.) "When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'" (People v. Centeno, supra, at p. 667.)
3. Alleged Burden Shifting
It is error for a prosecutor "to state that 'a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.'" (People v. Centeno, supra, 60 Cal.4th at p. 673.) Defendant argues the trial court allowed the prosecutor to shift the burden of proof during closing argument. We disagree. The instant case is distinguishable from People v. Hill, supra, 17 Cal.4th 800, on which defendant relies. In Hill, the prosecutor argued to the jury that reasonable doubt meant" 'you have to have a reason for this doubt. There has to be some evidence on which to base a doubt.'" (Id. at p. 831.) After a defense objection was overruled, the prosecutor reiterated," 'There must be some evidence from which there is a reason for a doubt. You can't say, well, one of the attorneys said so.'" (Ibid.) Our Supreme Court explained that "[a]lthough the question arguably is close, we conclude it is reasonably likely [the prosecutor]'s comments, taken in context, were understood by the jury to mean defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt. Accordingly, we conclude [the prosecutor] committed misconduct by misstating the law." (Id. at p. 832.) Here, the prosecutor "did not say that defendant bore the burden of proof or that defendant was required to produce evidence." (People v. Weaver (2012) 53 Cal.4th 1056, 1077.) Rather, he "permissibly commented on the state of the evidence." (Ibid.)
We cannot conclude, as defendant suggests, that the prosecutor's statements were reasonably likely to be understood by the jury to indicate defendant had a burden of producing evidence to demonstrate a reasonable doubt. The court repeatedly emphasized to the jury that the prosecutor was making inferences from the evidence and the defense had no burden. The prosecutor stated that the defense did not "have to do anything. They don't have to call a single witness in the case....I have to prove this case beyond a reasonable doubt." The prosecutor then proceeded to explain that "[o]ne logical witness would be an officer who pulled over" and "[w]e didn't hear any officers testifying about any traffic stop that day." Defendant argues that by overruling his objection to the latter comment, and not ruling on his previous objections to alleged burden shifting, the court allowed the jury to conclude burden shifting was allowed. We disagree. The trial court properly overruled the objection to the statement that no officer testified about any traffic stop because "it is neither unusual nor improper to comment on the failure to call logical witnesses." (People v. Gonzales (2012) 54 Cal.4th 1234, 1275.) We reject defendant's assertion that the prosecutor committed misconduct by improperly shifting the burden of proof.
4. Alleged Reference to Matters Not in Evidence
Defendant argues the prosecutor committed misconduct by referring to matters not in evidence when he argued S.K.'s text message, "Bong[,] can you call, check they done," referred to a 50-pound marijuana deal, and S.K. was checking on where his money was. We disagree. As the trial court indicated, the prosecutor's statement was an inference based on the text messages and other evidence. "Counsel is not permitted to 'assume or state facts not in evidence [citation] or mischaracterize the evidence [citation]'; however, the reasonableness of inferences counsel draws from matters in evidence '" 'is for the jury to decide.'" '" (People v. Holmes, McClain &Newborn (2022) 12 Cal.5th 719, 787.) We conclude the prosecutor's comments were permissible because they" 'did not mischaracterize or assume facts not in evidence, but merely commented on the evidence and made permissible inferences.'" (Ibid.)
B. Sufficiency of the Evidence of Lying in Wait
The jury found defendant guilty of first degree murder and also found true the associated lying-in-wait special-circumstance allegation. (§ 190.2, subd. (a)(15).) Defendant argues there was insufficient evidence of "lying-in-wait murder." The requirements for establishing the lying-in-wait special circumstance differ slightly and are more stringent than the requirements for establishing lying-in-wait first degree murder. (People v. Cage (2015) 62 Cal.4th 256, 278; accord People v. Johnson (2016) 62 Cal.4th 600, 633.) "Where the evidence supports the special circumstance, it necessarily supports the theory of first degree murder." (People v. Cage, supra, at p. 278; accord People v. Johnson, supra, at pp. 633-634.) Nonetheless, only the special circumstance is at issue in this proceeding. The prosecution presented one theory of defendant's first degree murder liability: that the killing was willful, deliberate, and premeditated murder. (§ 189.) The jury was not instructed on lying in wait as a theory of first degree murder. As such, we will focus our discussion on the special circumstance.
"The standard of review for a sufficiency of the evidence claim as to a special circumstance is whether, when evidence that is reasonable, credible, and of solid value is viewed 'in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the allegation beyond a reasonable doubt.' [Citations.] The standard is the same under the state and federal due process clauses. [Citation.] We presume, in support of the judgment, the existence of every fact the trier of fact could reasonably deduce from the evidence, whether direct or circumstantial." (People v. Clark (2016) 63 Cal.4th 522, 610.)
" 'The lying-in-wait special circumstance requires proof of"' "an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) . . . a surprise attack on an unsuspecting victim from a position of advantage." '" '" (People v. Clark, supra, 63 Cal.4th at p. 628; accord People v. Johnson, supra, 62 Cal.4th at p. 629.)
Our Supreme Court has "explained the elements of the lying-in-wait special circumstance as follows. '" 'The element of concealment is satisfied by a showing" 'that a defendant's true intent and purpose were concealed by his actions or conduct. It is not required that he be literally concealed from view before he attacks the victim.'"' [Citation.]"' [Citation.] As for the watching and waiting element, the purpose of this requirement 'is to distinguish those cases in which a defendant acts insidiously from those in which he acts out of rash impulse. [Citation.] This period need not continue for any particular length" 'of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation.'" [Citation.]' [Citation.] 'The factors of concealing murderous intent, and striking from a position of advantage and surprise, "are the hallmark of a murder by lying in wait." '" (People v. Mendoza (2011) 52 Cal.4th 1056, 1073, fn. omitted.)
Defendant argues that, at most, five minutes passed between his arrival and the beginning of the shooting. He further contends his arrival was expected by the victims. These arguments are unavailing. Our Supreme Court has explained that a few minutes can be a substantial period of watchful waiting, and the precise period of time involved is not critical. (People v. Moon (2005) 37 Cal.4th 1, 23.) The prosecution's theory was that defendant concealed his deadly purpose with a ruse that he was there for a marijuana transaction, hid behind a van, and then popped out and took the victims by surprise. This theory was supported by the evidence. The fact defendant did not have to wait long for his victims to emerge did not negate the nature of his crime. Substantial evidence supports the jury's true finding on the special circumstance of lying in wait.
C. Alleged Cruel and/or Unusual Punishment
Defendant contends his sentence of life without the possibility of parole plus 57 years to life violates the state and federal constitutional proscriptions against cruel and/or unusual punishment. (U.S. Const., 8th Amend.; Cal. Const., art I, § 17.)
A sentence violates the federal prohibition against "cruel and unusual punishments" if the sentence is "grossly disproportionate for a particular defendant's crime." (U.S. Const., 8th Amend.; Graham v. Florida (2010) 560 U.S. 48, 60.) "Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." (Rummel v. Estelle (1980) 445 U.S. 263, 272.)
A sentence violates the state prohibition against "[c]ruel or unusual punishment" if "it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (Cal. Const., art. I, § 17; In re Lynch (1972) 8 Cal.3d 410, 424; accord People v. Dillon (1983) 34 Cal.3d 441, 478 (Dillon).) In Lynch, our Supreme Court described three "techniques" used to determine if a punishment is cruel or unusual under California law: (1) considering the nature of the offense and the offender with regard to the degree of danger they present to society; (2) comparison with the punishment prescribed for more serious crimes in the jurisdiction; and (3) comparison with punishment for the same offense in other jurisdictions. (In re Lynch, supra, at pp. 425-427.) "The main technique of analysis under California law is to consider the nature both of the offense and of the offender." (People v. Martinez (1999) 76 Cal.App.4th 489, 494 (Martinez).) This is the technique employed by defendant. "Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment." (Id. at p. 496.)
"With respect to 'the nature of the offense,'" our Supreme Court has indicated "deliberate and premeditated murder with malice aforethought" presents the highest level of danger. (Dillon, supra, 34 Cal.3d at p. 479.) Additionally, we consider" 'the facts of the crime in question' [citation]-i.e., the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts." (Ibid.) Defendant argues the nature of his offense does not pose a danger to society because it was isolated, there was insufficient evidence he killed S.K., and the existence of a second shooter suggests he was unlikely to reoffend. We are unpersuaded. Substantial evidence supported the conclusion that defendant intentionally murdered S.K. by means of lying in wait. The nature of the offense presented a high degree of danger to society.
With respect to the "nature of the offender," "[t]his branch of the inquiry . . . focuses on the particular person before the court, and asks whether the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Dillon, supra, 34 Cal.3d at p. 479.) As he did in the trial court, defendant argues his sentence is unconstitutional because he was 19 when he committed the underlying offenses, and he had no criminal record. These factors are not determinative. (Martinez, supra, 76 Cal.App.4th at p. 497.) While he was youthful, defendant "was not a minor, and there was no evidence he was unusually immature emotionally or intellectually as the defendant in [] Dillon." (Martinez, supra, at p. 497.) A successful claim is an "exquisite rarity," and "defendant must overcome a 'considerable burden' in convincing us his sentence was disproportionate to his level of culpability." (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196, 1197.) He has not done so. Defendant has not demonstrated his sentence is prohibited under the state or federal constitutional proscriptions against cruel and/or unusual punishment. (See People v. Abundio (2013) 221 Cal.App.4th 1211, 1213, 1220-1221 [affirming sentence of life without the possibility of parole for murder committed when defendant was 18].)
D. Alleged Cumulative Error
Defendant argues the cumulative effect of the errors he has alleged necessitates reversal. "There was, however, no error to cumulate." (People v. Phillips (2000) 22 Cal.4th 226, 244.)
III. DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting that the firearm enhancements under section 12022.5 were stricken rather than stayed, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections.
WE CONCUR: ROBIE, ACTING P. J., EARL, J.