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People v. Leuk

California Court of Appeals, Fourth District, Third Division
Jun 5, 2024
No. G063089 (Cal. Ct. App. Jun. 5, 2024)

Opinion

G063089

06-05-2024

THE PEOPLE, Plaintiff and Respondent, v. BUN THIENG LEUK, Defendant and Appellant.

Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Ksenia Gracheva, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Riverside, No. RIF1901381 Bernard Schwartz, Judge. Affirmed.

Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Ksenia Gracheva, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

GOETHALS, J.

Bun Thieng Leuk killed his girlfriend by running over her four times with his pickup truck while their three-year-old daughter sat in the backseat. He later told the police he decided to kill her earlier that morning; he told her family he was going to do it; and he planned to run away after the murder and commit suicide if he was caught.

At trial, defense counsel requested a jury instruction on voluntary manslaughter based on heat of passion. The trial court found insufficient evidence to support the instruction and declined to give it, but instructed the jury that a finding of provocation could reduce the crime from first degree murder to second degree murder. The jury convicted Leuk of first degree murder and other crimes.

Leuk asserts the trial court erred in denying his request for a voluntary manslaughter instruction because there was substantial evidence he killed his girlfriend in the heat of passion, based either on her provocatory course of conduct over time or on their sudden quarrel. We disagree. There was insufficient evidence to support the instruction under either theory. In any event, any instructional error was harmless beyond a reasonable doubt. The jury necessarily rejected the defense theory of provocation when it found Leuk guilty of first degree murder.

FACTS

1. Background

Leuk dated the victim, Linda H., for about five years. Leuk and Linda fought often and broke up frequently. They had one daughter together, who was about three years old at the time of Linda's death.

According to Linda's brother-in-law, Phillipe R., Linda and Leuk often called him to complain about each other and accuse the other of being physically violent. Phillipe described their relationship as "very toxic" and felt that fighting "was almost kind of normal for them." Whenever Linda and Leuk got into an argument, Leuk told Phillipe he was going to kill Linda.

In August 2019, Leuk and Linda broke up again. Linda moved out of Leuk's home and was homeless.

A few weeks later, in early September, Linda called Phillipe; she was crying and claimed Leuk had "choked her out." When Phillipe met Linda later that day, she looked like she had been in a fight; her hair was disheveled, and she had scratches on her body and redness on her neck.

Around that same time, Leuk began calling Phillipe to find out where Linda was, complaining about "their drama," and saying he wanted to kill her. Phillipe did not believe Leuk, as he had made similar threats before.

2. Linda's Death

Leuk killed Linda on September 9, 2019. At about 2:00 p.m. that afternoon, Leuk called Phillipe and said he wanted to kill Linda. Phillipe did not take Leuk seriously.

Later that afternoon, Linda went to her mother's house to visit her niece, Faith. Faith noticed bruises on Linda's thigh and arms. After spending some time together, Linda and Faith left the house to go to a nearby market. As they drove, they noticed Leuk was following them in a black truck. He sped up and followed Linda's car so closely that his bumper was almost touching hers. Linda made a quick U-turn and tried without success to lose Leuk, who followed close behind.

Linda drove Faith back to her mother's house and told her to get out of the car; Faith did so and stood on the driveway. Linda then tried to make a U-turn to get away, but Leuk drove his truck into the back of her car, causing substantial damage to the rear passenger side.

Linda got out of her car, ran up to Leuk's truck, and started banging on the window and yelling at him. She told Leuk she wanted their daughter, who was crying in the back seat of Leuk's truck. Leuk stayed in the car with his windows rolled up, but he argued back. Faith's mother Frances R. and one of Faith's high school friends came outside and could hear Leuk and Linda arguing loudly.

The record is inconsistent regarding Frances's identity. In some places, she is identified as Faith's mother and in other places as Linda's mother.

Suddenly, Leuk put his truck in reverse and drove backwards quickly; he then put the truck in drive and ran over Linda. Faith banged on Leuk's window and begged him to stop. Ignoring Faith's pleas, Leuk repeatedly reversed his truck and drove over Linda three more times, causing the tires to spin on her body. As this was happening, Frances tried to help Linda up; she was also hit by the truck and thrown several feet back. Surveillance cameras outside a neighbor's home captured video footage of the incident.

Leuk drove away. Linda was on the ground bleeding and struggling to breathe. She had abrasions covering her body, a deep puncture wound in her torso, and a large laceration on her head that exposed her skull. When paramedics arrived about 15 minutes later, she was pronounced dead.

3. Leuk's Police Interview

Leuk was arrested and interviewed by police the following day. After waiving his Miranda rights, Leuk said "I'm gonna admit everything I did .... [¶] . . . [¶] I killed her." He told the investigator that he and Linda dated on and off for five years, but they had broken up. He described Linda as homeless and addicted to drugs and said they had recently been fighting a lot.

Miranda v. Arizona (1966) 384 U.S. 436.

Leuk recounted that four days before the incident, Linda and her friend Nolan J. broke into Leuk's house while he was sleeping, hit him repeatedly, stabbed him in the head with a pocketknife, and tried to kill him. Leuk claimed Nolan was a convicted murderer who had recently been released from prison after 25 years. He said Linda and Nolan ran away after he called the police, and the police did nothing in response to his report. Leuk was hospitalized overnight.

During the interview, the investigator noticed a gash or cut on Leuk's head that had been treated with stitches.

After the interview, the investigator checked police records and confirmed that Leuk filed two police reports about Linda on September 5.

Leuk explained that two days later, on September 7, a mutual friend told him to "watch out" because Linda bought a gun and was bragging that she would "bring some guy [to] kill him." Leuk believed Linda and Nolan would try to kill him again and that he was either "gonna die" or "go to jail." Scared for his life, Leuk asked Linda's family to stop her from hurting him and repeatedly told them he would kill her, but they did not listen or intervene.

Leuk told the investigator that on the morning of the incident, he decided to kill Linda and commit suicide if he got caught. Believing Linda and Nolan would try to kill him, Leuk "decided to do it first." In his words: "All I thinkin' is about killin' her, killin' her, killin' her." "Something tellin' me in my head, just killin' her, killin' her, killin' her, and, um, I did." Leuk did not plan how or when he would kill Linda; he only decided that was the day he was going to kill her.

Leuk explained to the investigator that later that afternoon, he parked outside Linda's mother's house and waited for Linda to come out so he could have the police arrest her. When the police did not arrive, Linda drove off. Leuk followed her. Once back at the house, Leuk hit Linda's car to prevent her from escaping ("That way she can't run") and told her to leave him alone and "get the hell outta here." When she stood in front of his car without budging or listening ("She never listening. She standing right in front of the God damn car"), Leuk ran over Linda four or five times and killed her. Leuk also hit Frances in the process, but he did not intend to kill her. He "just wanted to kill" Linda.

4. Trial

Leuk was charged with murder and various other crimes. A transcript of his police interview was entered into evidence. The jury also heard testimony from Phillipe, Faith, and Frances, among others.

The other charges stemmed from a 2018 case, which was consolidated by the trial court with the 2019 murder case.

Leuk's defense counsel asked the trial court to instruct the jury that a killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant acted because of a sudden quarrel or in the heat of passion. (See CALCRIM No. 570.) After much discussion with counsel, the court denied the request, finding "scant" but not "substantial" evidence to support the instruction. Given the court's ruling, Leuk waived his right to testify, and defense counsel decided not to call Nolan or any other witnesses.

The trial court instructed the jury on first and second degree murder, and it also gave an instruction on provocation's effect on the degree of murder (CALCRIM No. 522): "Provocation may reduce a murder from first degree to second degree. 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."

The jury found Leuk guilty of first degree murder with a true finding that he used a vehicle as a deadly weapon. It also found Leuk guilty of assault with a deadly weapon, child endangerment, and violation of a court order.

The jury acquitted Leuk of robbery and attempted criminal threats. It was unable to reach a verdict on domestic battery, so the trial court declared a mistrial on that count. The court also dismissed a Penal Code section 12022.1 allegation.

The trial court sentenced Leuk to a total of 29 years in prison. Leuk filed a notice of appeal.

DISCUSSION

Leuk's sole contention on appeal is that the trial court erred in denying his request for a jury instruction on voluntary manslaughter and thereby denied Leuk his constitutional right to present a defense. We review his claim of instructional error de novo. (People v. Wilson (2021) 11 Cal.5th 259, 295.)

"First degree murder is an unlawful killing with malice aforethought, premeditation, and deliberation"; "[s]econd degree murder is an unlawful killing with malice, but without . . . premeditation and deliberation"; and voluntary manslaughter is an unlawful intentional killing without malice, premeditation, or deliberation. (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332 (Hernandez); see People v. Beltran (2013) 56 Cal.4th 935, 941-942 (Beltran).)

"Malice may be express (intent to kill) or implied (intentional commission of life-threatening act with conscious disregard for life)." (Hernandez, supra, 183 Cal.App.4th at p. 1332.)

Provocation can reduce first degree murder to second degree murder by negating the elements of premeditation and deliberation. If heat of passion arising from provocation precluded the defendant from subjectively premeditating and deliberating, the crime may be reduced from first degree murder to second degree murder. (Hernandez, supra, 183 Cal.App.4th at p. 1332.)

Provocation can also reduce an unlawful killing from murder to voluntary manslaughter by negating the element of malice. If the provocation would cause a reasonable person to react with deadly passion, the defendant is deemed to have acted without malice, and the crime is further reduced to voluntary manslaughter. (Hernandez, supra, 183 Cal.App.4th at p. 1332; see also Pen. Code, § 192, subd. (a) [voluntary manslaughter is a voluntary unlawful killing without malice "upon a sudden quarrel or heat of passion"].)

As our Supreme Court has explained, "Heat of passion arises if, '"at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment."' [Citation.] Heat of passion, then, is a state of mind caused by legally sufficient provocation that causes a person to act, not out of rational thought but out of unconsidered reaction to the provocation." (Beltran, supra, 56 Cal.4th at p. 942.) The proper focus is not whether the provoking conduct would cause the average person to kill, but rather whether the provocation would cause the average person to have such strong passion that his reason and judgment are obscured and his reaction bypasses his thought process. (Id. at p. 949.)

A trial court is obligated to instruct the jury on a sudden quarrel/heat of passion theory of voluntary manslaughter if there is substantial evidence from which the jury could reasonably conclude that the defendant committed voluntary manslaughter but not murder. (People v. Nelson (2016) 1 Cal.5th 513, 538; People v. Moye (2009) 47 Cal.4th 537, 541, 553.) In this case, the trial court declined to give such an instruction after finding there was insufficient evidence to warrant the instruction.

Leuk argues the trial court's failure to give that instruction was erroneous. According to Leuk, the statements he made in his police interview, together with Phillipe's testimony about Leuk and Linda's history of fighting, the investigator's testimony about the gash on Leuk's face and the fact Leuk had filed a police report about Linda on September 5, and Faith's testimony about the heated nature of the confrontation in the street, all supported a heat of passion instruction, because that evidence established both a continuous course of provocation by Linda, as well as a sudden quarrel with Linda when she stood in front of Leuk's truck and yelled at him.

We are not persuaded. Leuk admitted to police that the morning of the crime, he decided to kill Linda and to commit suicide if he was caught. Leuk also admitted that hours later, he drove to Linda's mother's house, called the police, and waited for Linda; when the police failed to arrive, he followed Linda, rammed his truck into her car so she could not run away, and then drove back and forth over her body four times.

In the face of these admissions, no reasonable jury could conclude that the couple's history of fighting or their quarrel in the street caused Leuk to act without due deliberation or reflection when he repeatedly drove over Linda. The fact that Leuk called the police when he arrived at Linda's mother's house so they could apprehend Linda shows he had cooled down from his past disputes with Linda. Indeed, Leuk admitted that he had already decided to kill Linda earlier that morning, and he followed her car and rammed it with his truck to prevent her escape. The court properly refused Leuk's heat of passion/sudden quarrel instruction.

In any event, any alleged instructional error was harmless beyond a reasonable doubt because the jury convicted Leuk of first degree murder, despite being instructed that sufficient provocation could reduce the conviction from first degree to second degree murder. The jury's rejection of a verdict of second degree murder eliminates any possibility that it might have returned a verdict of voluntary manslaughter if the requested provocation instruction were given. (See People v. Wang (2020) 46 Cal.App.5th 1055, 1071-1072 [because jury's finding that the defendant premeditated and deliberated a killing was "manifestly inconsistent" with his having acted under the heat of passion, omission of heat of passion instruction was harmless beyond a reasonable doubt]; People v. Peau (2015) 236 Cal.App.4th 823, 830 [first degree murder conviction rendered failure to give heat of passion instruction harmless]; People v. Wharton (1991) 53 Cal.3d 522, 572 [first degree murder conviction necessarily included finding that the defendant premeditated and deliberated the killing, which "is manifestly inconsistent with having acted under the heat of passion-even if that state of mind was achieved after a considerable period of provocatory conduct"].)

On this record, we discern no federal constitutional error.

DISPOSITION

The judgment is affirmed.

WE CONCUR: O'LEARY, P. J. GOODING, J.


Summaries of

People v. Leuk

California Court of Appeals, Fourth District, Third Division
Jun 5, 2024
No. G063089 (Cal. Ct. App. Jun. 5, 2024)
Case details for

People v. Leuk

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. BUN THIENG LEUK, Defendant and…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Jun 5, 2024

Citations

No. G063089 (Cal. Ct. App. Jun. 5, 2024)