Opinion
F076337
10-22-2019
THE PEOPLE, Plaintiff and Respondent, v. LEUTH SENGSONGKHAM, Defendant and Appellant.
Philip M. Brooks, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F15902435)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge. Philip M. Brooks, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Leuth Sengsongkham was charged with the murders of Rattana Chounramany and Somkeo Thongkhamvilay (Pen. Code, § 187, subd. (a) [counts 1 & 2]). As to both counts, the information alleged he personally and intentionally discharged a firearm that proximately caused each victim's death (§ 12022.53, subd. (d)). Following trial, the jury found defendant guilty of second degree murder on count 1, first degree murder on count 2, and found true the firearm discharge allegations. The trial court imposed an aggregate sentence of 90 years to life: 25 years to life, plus 25 years to life for the firearm discharge enhancement, on count 2; and a consecutive 15 years to life, plus 25 years to life for the firearm discharge enhancement, on count 1.
Undesignated statutory citations refer to the Penal Code.
As to both counts, the information also alleged defendant personally used a firearm (§ 12022.5, subd. (a)).
On appeal, defendant contends his first degree murder conviction on count 2 should be reversed because the trial court did not properly instruct the jury on provocation. For the reasons set forth below, we reject this claim. Defendant also argues—in view of a recent amendment to section 12022.53, enacted by Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill No. 620) (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018)—the matter should be remanded to give the court the opportunity to strike the firearm discharge enhancements. We accept the Attorney General's concession that a remand for this limited purpose is appropriate.
STATEMENT OF FACTS
Defendant and Chounramany lived together for over 30 years and raised seven children. In 2014, however, they began to experience marital problems. Approximately six months before the events of April 18, 2015, defendant and Chounramany started sleeping in different rooms. Communication between the two diminished and they were becoming more distant. Approximately one to two months before April 18, 2015, Chounramany stopped cooking for defendant. Conversely, she began cooking for Thongkhamvilay, their friend and fellow farmhand who frequently attended family gatherings. A few weeks before April 18, 2015, at one such function, Chounramany was overheard telling defendant "he was a very jealous person," "he doesn't know what he's talking about," and "she was going to leave [him]." Defendant did not respond. Instead, he remained "very quiet" and "show[ed] no emotions."
Defendant and Chounramany were not legally married, but they considered themselves married.
On the morning of April 18, 2015, defendant woke up and pocketed his pistol. He and Chounramany then went to a warehouse, which was nearby or adjacent to Thongkhamvilay's living quarters. At the warehouse, defendant, Chounramany, and Thongkhamvilay loaded wooden stakes into a white box truck. Afterward, defendant—accompanied by Thongkhamvilay—drove the truck and Chounramany drove the couple's red Toyota Camry to the company farm in Fowler where all three worked. Five to ten minutes after they arrived at the farm, about 180 feet away from the truck, defendant shot Thongkhamvilay six times: once in the forehead, once in the mouth, once in the neck, once in the left shoulder, once in the upper right back, and once in the lower back. He also shot Chounramany twice—once in the chest and once in the head—when she tried to stop him. Thereafter, defendant drove the Camry to Las Vegas, Nevada, an approximate five and a half to six hour trip, and visited the residence of Joann, one of his and Chounramany's daughters.
Pursuant to California Rules of Court, rule 8.90, we refer to Joann by her first name. No disrespect is intended.
Cognizant of the issues between her parents, Joann previously invited defendant to stay with her "to take a break," an offer he declined. When defendant arrived at her home in the afternoon of April 18, 2015, Joann observed he was "more quiet than normal." She phoned Chounramany and "grew more worried" when her mother did not answer. Joann then contacted her siblings and other relatives who lived in or around Fresno and asked them to check on Chounramany. At or around 7:00 p.m., members of Chounramany's family went to the farm. There, they encountered Onofre Denis-Silva, the employee responsible for irrigating the crops. Denis-Silva led the group to the bodies of Chounramany and Thongkhamvilay, which he had discovered some time earlier. A relative phoned Joann and informed her about the deaths. Joann asked defendant "what he did." He replied, "I shoot, I shoot and kill mom and the guy." The following morning, Joann took defendant to a police station in Henderson, Nevada, at the latter's behest.
In an interview with Fresno County Sheriff's Deputy Davis, defendant confessed he shot Chounramany and Thongkhamvilay. He asserted his wife and coworker had been engaged in an extramarital affair for almost a year. When defendant implored Chounramany to end the affair, she said, "I don't care if you don't like it, then just leave me." About five months before the shooting, Chounramany professed she "slept with [Thongkhamvilay] already," which angered defendant. On the morning of the shooting, she told him she was "gonna move out to [Thongkhamvilay's] house." Enraged, defendant decided to bring his pistol to the farm. He did not argue or converse with Thongkhamvilay before killing him since he "kn[e]w [Thongkhamvilay] [was] . . . try[ing] to take [his] wife away."
DISCUSSION
I. INSTRUCTIONAL ERROR
A. Background
The court read to the jury CALCRIM Nos. 520 (First or Second Degree Murder With Malice Aforethought), 521 (First Degree Murder), and 522 (Provocation: Effect on Degree of Murder):
"The defendant is charged in [c]ount[s] 1 and 2 with murder in violation of . . . [s]ection 187[, subdivision ](a). To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant committed an act that caused the death of another person; and two, when the defendant acted he had a state of mind called malice aforethought.
"There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind
required for murder. [¶] The defendant acted with express malice if he unlawfully intended to kill. [¶] The defendant acted with implied malice if, one, he intentionally committed an act; two, the natural and probable consequences of the act were dangerous to human life; three, at the time he acted he knew his act was dangerous to human life; and four, he deliberately acted with conscious disregard for human life. Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberations or the passage of any particular period of time.
"An act causes death if the death is the direct, natural and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence.
"If you decide that the defendant committed murder, it is murder of the second degree unless the People have proved beyond a reasonable doubt that it is murder of the first degree as is going to be defined in the following instruction.
"A defendant has been prosecuted for first degree under the theory that the murders were willful, deliberate and premeditated. The defendant is guilty of first degree murder if the People have proved he acted willfully, deliberately and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and knowing the consequences decided to kill. The defendant acted with premeditation if he decided to kill before completing the act that caused the death. The length of time the person spends considering whether to kill does not alone determine whether the killing was deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, and without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time. The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime or lesser degree. If the People have not met this burden, you must find . . . the defendant not guilty of first degree murder and the murder is of the second degree. [¶] . . . [¶]
"Provocation may reduce a murder from first degree to second degree and may reduce murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also consider the provocation in deciding whether the defendant committed murder or manslaughter."
The court also read to the jury CALCRIM No. 570 (Voluntary Manslaughter: Heat of Passion—Lesser Included Offense):
"A killing that would otherwise be murder is reduced to voluntary manslaughter, . . . [s]ection 192[, subdivision ](a), if the defendant killed someone because of a sudden quarrel or in the heat of passion. A defendant killed someone because of a sudden quarrel [or] in the heat of passion if, one, defendant was provoked; two, as a result of the provocation[,] the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; and three, the provocation would have caused a person of average disposition to act rashly and without due deliberations, that is[,] from passion rather than from judgment.
"Heat of passion does not require anger, rage or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberations and reflection. In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient . . . . In deciding whether the provocation was sufficient[,] consider whether a person of average disposition in the same situation and knowing the same facts would have reacted from passion rather than from judgment. If enough time passed between the provocation and the killing for a person of average disposition to cool off and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis.
"The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as a result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder."
B. Relevant law
"Murder is the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) "Malice may be either express or implied." (People v. Lasko (2000) 23 Cal.4th 101, 107.) It is express "when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature." (§ 188, subd. (a)(1).) It is implied "when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his [or her] conduct endangers the life of another and who acts with conscious disregard for life." (People v. Dellinger (1989) 49 Cal.3d 1212, 1215.)
"A murder that is willful, deliberate, and premeditated is murder in the first degree." (People v. Brady (2010) 50 Cal.4th 547, 561, citing § 189.) "A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] 'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance. [Citations.] 'The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . ." ' " (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) " 'A reviewing court normally considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported—preexisting motive, planning activity, and manner of killing—but "[t]hese factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation." ' " (People v. Burney (2009) 47 Cal.4th 203, 235; see, e.g., People v. Tafoya (2007) 42 Cal.4th 147, 172 [" '[G]enerally first degree murder convictions are affirmed when (1) there is evidence of planning, motive, and a method of killing that tends to establish a preconceived design; (2) extremely strong evidence of planning; or (3) evidence of motive in conjunction with either planning or a method of killing that indicates a preconceived design to kill.' "].) "Direct evidence of a deliberate and premeditated purpose to kill is not required; the elements of deliberation and premeditation may be inferred from proof of such facts and circumstances as will furnish a reasonable foundation for such an inference." (People v. Miller (1969) 71 Cal.2d 459, 477.)
" 'A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of . . . voluntary manslaughter. [Citation.]' [Citation.] Generally, the intent to unlawfully kill constitutes malice. [Citations.] 'But a defendant who intentionally and unlawfully kills lacks malice . . . when the defendant acts in a "sudden quarrel or heat of passion" . . . .' " (People v. Breverman (1998) 19 Cal.4th 142, 153-154.) "An intentional, unlawful homicide is 'upon a sudden quarrel or heat of passion' [citation], and is thus voluntary manslaughter [citation], if the killer's reason was actually obscured as the result of a strong passion aroused by a 'provocation' sufficient to cause an ' "ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment." ' " (Id. at p. 163.) "The heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively." (People v. Steele (2002) 27 Cal.4th 1230, 1252.)
"Second degree murder is defined as the unlawful killing of a human being with malice aforethought, but without the additional elements—i.e., willfulness, premeditation, and deliberation—that would support a conviction of first degree murder." (People v. Nieto Benitez (1992) 4 Cal.4th 91, 102, italics omitted.) "Provocation of a kind, to a degree, and under circumstances insufficient to fully negative or raise a reasonable doubt as to the idea of both premeditation and malice (thereby reducing the offense to manslaughter) might nevertheless be adequate to negative or raise a reasonable doubt as to the idea of premeditation or deliberation, leaving the homicide as murder of the second degree . . . ." (People v. Thomas (1945) 25 Cal.2d 880, 903, italics omitted.) "The existence of provocation and its extent and effect, if any, upon the mind of defendant in relation to premeditation and deliberation in forming the specific intent to kill, as well as in regard to the existence of malice [citation], constitute questions of fact for the jury . . . ." (Id. at pp. 903-904.)
"Thus, a subjective test applies to provocation as a basis to reduce malice murder from the first to the second degree: it inquires whether the defendant in fact committed the act because he was provoked. The rationale is that provocation may negate the elements of premeditation, deliberateness and willfulness that are required for that degree of the crime. [Citation.] But more is required to reduce malic murder to voluntary manslaughter. For that, an objective test also applies: the provocation must be so great that, in the words of CALCRIM No. 570, it 'would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.' " (People v. Jones (2014) 223 Cal.App.4th 995, 1000-1001.)
C. Analysis
On appeal, defendant argues:
"The instructions on provocation that the trial court read to the jury adequately described provocation in the context of voluntary manslaughter, but they did not correctly or adequately describe provocation in the context of second degree murder. Indeed, because CALCRIM [No.] 522 says that 'provocation' may reduce a murder from first degree to second degree, and also may reduce murder to manslaughter, it implies that the standard for provocation in both contexts is the same, and the difference inheres in the amount of provocation present. [Citation.]
"This implication was reinforced by the fact that right after reading CALCRIM [No.] 522 the trial court read CALCRIM [No.] 570, which defined provocation in terms of its effect on 'a person of average disposition' and said that the defendant 'is not allowed to set up his own standard of conduct.' [Citation.] By law, however, for purposes of provocation in the context of second degree murder, the defendant is 'allowed to set up his own standard of conduct,' in the sense that it is his subjective state of mind that is determinative, not the state of mind of a person of average disposition in the same circumstances.
"The question becomes whether the court had [a] sua sponte duty to tell the jury that provocation in the context of second degree murder is based on a subjective standard. [T]he answer is yes."
First, we conclude the court had no obligation to instruct the jury on provocation in the manner posited by defendant in the absence of a request. "The trial court has a sua sponte duty to instruct the jury on the general principles of law relevant to the issues raised by the evidence." (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1331 (Hernandez), citing People v. Rogers (2006) 39 Cal.4th 826, 866; see People v. Breverman, supra, 19 Cal.4th at p. 154 [" ' "The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." ' "].) On the other hand, pinpoint instructions, which "relate particular facts to a legal issue in the case or 'pinpoint' the crux of a defendant's case" (People v. Saille (1991) 53 Cal.3d 1103, 1119), "are required to be given upon request when there is evidence supportive of the theory, but they are not required to be given sua sponte" (ibid.). "[A]n instruction on provocation for second degree murder is a pinpoint instruction that need not be given sua sponte by the trial court." (Hernandez, at p. 1333.)
Defendant insists "provocation" as used in the challenged instructions has a technical meaning peculiar to the law and the court had a sua sponte duty to clarify the term. We disagree. "A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning." (People v. Estrada (1995) 11 Cal.4th 568, 574, italics omitted.) "Provocation means 'something that provokes, arouses, or stimulates'; provoke means 'to arouse to a feeling or action[;] . . . to incite to anger.' " (Hernandez, supra, 183 Cal.App.4th at p. 1334.) As used in the instructions in the instant case, "provocation" "bore [its] common meaning, which required no further explanation in the absence of a specific request." (People v. Cole (2004) 33 Cal.4th 1158, 1217-1218; see Hernandez, at p. 1334 ["[W]e assume the jurors were aware of the common meaning of the term."].)
Next, we cannot find the court's instructions were defective. "In reviewing a claim that the court's instructions were incorrect or misleading, we inquire whether there is a reasonable likelihood the jury understood the instructions as asserted by the defendant." (Hernandez, supra, 183 Cal.App.4th at p. 1332, citing People v. Cross (2008) 45 Cal.4th 58, 67-68.) "We consider the instructions as a whole and assume the jurors are intelligent persons capable of understanding and correlating all the instructions." (Hernandez, at p. 1332.) Here, CALCRIM Nos. 521 and 522, respectively, "accurately inform the jury what is required for first degree murder, and that if the defendant's action was in fact the result of provocation, that level of crime was not committed. CALCRIM Nos. 521 and 522, taken together, informed jurors that 'provocation (the arousal of emotions) can give rise to a rash, impulsive decision, and this in turn shows no premeditation and deliberation.' [Citation.] As the jury also was instructed [via CALCRIM No. 570], a reduction of murder to voluntary manslaughter requires more. It is here, and only here, that the jury is instructed that provocation alone is not enough for the reduction; the provocation must be sufficient to cause a person of average disposition in the same situation, knowing the same facts, to have reacted from passion rather than judgment." (People v. Jones, supra, 223 Cal.App.4th at p. 1001.) It is not reasonably likely the jurors understood the instructions as asserted by the defendant.
Even assuming, arguendo, the court's instructions were somehow erroneous, by constitutional mandate, "[n]o judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) "[A] 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836; see People v. Jones (2012) 54 Cal.4th 1, 53 [instructional error evaluated under Watson's reasonable probability standard].)
The record demonstrates defendant and Chounramany experienced marital problems for at least half a year prior to the April 18, 2015 incident. At some point, he became aware his wife and his coworker, Thongkhamvilay, had been engaged in an extramarital affair. At least five months before the shooting, Chounramany admitted she had already slept with Thongkhamvilay. On the morning of the shooting, defendant elected to carry his pistol to work after Chounramany informed him she would move out and live with Thongkhamvilay. The couple met Thongkhamvilay at a warehouse and loaded wooden stakes into a box truck. Thereafter, defendant—with Thongkhamvilay as the sole passenger—drove the truck to the farm. Five to ten minutes after they arrived and moved 180 feet away from the truck, defendant shot Thongkhamvilay six times. There had been no conversation, let alone any argument, between the two men beforehand. "The only inference to be drawn is that any passions that may have been aroused [when defendant learned about the affair or Chounramany's decision to leave him for Thongkhamvilay] had cooled [by the time of the shooting]." (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704; see People v. Golsh (1923) 63 Cal.App. 609, 617 [cooling " 'may be shown by circumstances such as the transaction of other business in the meantime, . . . evidence of preparation for the killing, etc.' "].) Furthermore, the killing took place in an isolated location, where there was only one potential witness at the time (Chounramany), and the victims' bodies were only discovered by Denis-Silva hours later. (See People v. Hovarter (2008) 44 Cal.4th 983, 1019 ["Defendant's choice . . . of committing his crimes in isolated or secluded settings further suggests a premeditated plan designed to avoid detection."].) These circumstances do not establish "[defendant]'s reason was so disturbed by anger or outrage that he acted impulsively." (Fenenbock, at p. 1704.) Rather, they evince the deliberate, premeditated murder of Thongkhamvilay. Even in the absence of the purported instructional error, it is not reasonably probable the jury would have found defendant not guilty of first degree murder on count 2. II. REMAND FOR RECONSIDERATION OF SENTENCING
Defendant argues the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18 is more appropriate. He relies on People v. Thomas (2013) 218 Cal.App.4th 630. In that case, Division Three of the First Appellate District held the trial court's refusal to instruct on heat-of-passion voluntary manslaughter constituted federal constitutional error and such error was prejudicial under the Chapman standard. (Id. at pp. 633, 641-642, 644-646.) By contrast, in the instant case, the court gave that instruction. Moreover, even under the Chapman standard, the purported instructional error was harmless beyond a reasonable doubt because there was overwhelming evidence of planning, motive, and manner of killing, all of which may establish premeditation and deliberation. (People v. Jablonski (2006) 37 Cal.4th 774, 817.)
At the time defendant was charged, convicted, and sentenced, subdivision (h) of section 12022.53 provided:
"Notwithstanding [s]ection 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." (Stats. 2010, ch. 711, § 5, eff. Jan. 1, 2011.)
After defendant was sentenced, but while his case was still pending on appeal, the Legislature enacted Senate Bill No. 620 (2017-2018 Reg. Sess.). As of January 1, 2018, subdivision (h) of section 12022.53 provides:
"The court may, in the interest of justice pursuant to [s]ection 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Stats. 2017, ch. 7682, § 2, eff. Jan. 1, 2018.)
Defendant contends Senate Bill No. 620 applies retroactively to his case and a remand for reconsideration of sentencing is proper. The Attorney General agrees. We accept this concession without further analysis.
DISPOSITION
On remand, the trial court shall exercise its sentencing discretion under Penal Code section 12022.53, subdivision (h), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018), and, if appropriate following exercise of that discretion, resentence defendant accordingly. In all other respects, the judgment is affirmed.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
LEVY, J. /s/_________
MEEHAN, J.