Opinion
F054382
2-19-2009
THE PEOPLE, Plaintiff and Respondent, v. BOUALY MANGSANGHANH, Defendant and Appellant.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Procedural History
Appellant Boualy Mangsanghanh was convicted by jury of two counts of first degree murder (Pen. Code, § 187, subd. (a)) in the gang-related killing of Nath Ouch and her unborn child. The jury also found true a multiple-murder special-circumstance allegation (§ 190.2, subd. (a)(3)), and that the murders had been committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)). Mangsanghanh was sentenced to life without possibility of parole for the first murder and a concurrent life without possibility of parole for the second murder. The court imposed and then stayed the gang enhancement. Mangsanghanh was tried jointly with codefendants Sokol Yann (case No. F053647), Sokmorn Chea (case No. F053558), and Jonathan Perkins. Yann and Chea were convicted of the murders; Perkins was acquitted on all counts.
Factual Summary
Although Mangsanghanh is not a member of the criminal street gang known as the Asian Boyz (Boyz), the father of her child, Sopheak Chhang, is a member. Mangsanghanh sometimes went with Chhang when he was associating with gang members because she was afraid Chhang, who has a limited mental capacity, would be influenced by gang members. On January 31, 2007, the night of the murders, Mangsanghanh was with Chhang at Yanns home, along with a number of other gang members. Mangsanghanh had known Yann for a long time. He was a long-time Boyz member, and his house was known as a gang hangout. Also present that evening were gang members Chea, Perkins, Peter Khounvixay, Keo Som, Panya Channita, Jose Perez, and several others.
The Boyz have long been involved in a "war" with the Tiny Rascal Gang (TRG). There had been at least 30 shootings involving these two gangs within the four years preceding the murders. Several days prior to the murders, Som was jumped and assaulted by members of the TRG. In retaliation for the assault, several Boyz members executed a drive-by shooting in TRG territory. The TRG immediately retaliated with a drive-by shooting directed at Soms parents house. After the shooting at Soms parents house, Yann borrowed a loaded .45-caliber semiautomatic handgun from fellow Boyz member Victor Alvarez.
On the night of the murders, the gang discussed the recent shootings and the need to retaliate. The group was talking "trash" about the TRG. Yann was angry and wanted to retaliate. According to Som, Mangsanghanh noted the need to retaliate for the death of Boyz member Olina Mung, who had been killed a year earlier by the TRG. Alvarez was not there the night of the murders, but his gun was present. Channita testified that he saw Yann give Alvarezs semiautomatic handgun to Perez. Som testified the handgun was on the television stand at Yanns house and Perez took it from that location. Som, Channita, and Khounvixay left to find more guns. They returned with an AK-47 and ammunition they had gotten from Boyz member Laja Oupathame. Chea racked the AK-47. Yann told the group if they were "going to do something, do it smart."
Chea, Perez, Chhang, and Mangsanghanh left to do a retaliatory shooting shortly after midnight. Mangsanghanh drove to Easterby Elementary School in Fresno and parked. Across from the school was an apartment complex known to be a TRG hangout. Chea and Perez got out of the car, telling Mangsanghanh to wait. Mangsanghanh and Chhang stayed behind in the car. Mangsanghanh heard numerous gunshots. Chea and Perez ran back to the car with the guns. Mangsanghanh drove off.
A number of young women were in the parking lot of the apartment complex and testified that, shortly after midnight on February 1, 2007, they were fired at as they sat in or around cars in the parking lot. Nath Ouch, who was eight months pregnant, was shot in the back and died from her wounds. Her unborn child also died.
A large number of bullets and spent casings were found at the scene of the shooting and at the elementary school. These were traced back to the AK-47 and the .45-caliber handgun. There was bullet damage to signs and cars near the site establishing the trajectory of the bullets as coming from the school grounds. Alvarez retrieved his gun after the murders. The .45-caliber handgun ultimately was located under the seat of Alvarezs truck.
When contacted by police and told that her car was to be impounded, Mangsanghanh became angry and told police, "fuck that pregnant roach bitch, she got what she deserved." "Roach" is a derogatory term used to refer to TRG members. Mangsanghanh told police that the shooting was retaliatory. She also said that she was angry that police had not yet solved the Mung murder. She appeared pleased when told that this was wrong and that the suspect was in custody. Ouch was not a gang member, but she was the wife of a TRG member who was implicated in the Mung murder.
The prosecutions gang expert Detective Villalvazo testified that, in his opinion, the murders were done to benefit the Boyz in that it sent a message to the TRG that they were not to mess with the Boyz. Villalvazo also testified that some of the Boyzs primary activities were to engage in criminal acts such as possession of firearms, firing at residences, attempted murders, murders, stealing cars, drug sales, and intimidation of witnesses. There was also proof of a number of recent predicate gang offenses committed by Boyz members. There is no dispute that the TRG and Boyz are criminal street gangs active in the United States, specifically in Fresno.
Alvarez testified pursuant to a plea agreement, according to which he entered a plea of guilty to accessory after the fact in exchange for his testimony. Som, Khounvixay, Channita, and Oupathame also negotiated plea agreements. They entered a plea of guilty to voluntary manslaughter in exchange for their testimony. Perez remained a fugitive at the time of trial. Chhang was declared incompetent to stand trial.
Discussion
I. Admission of photos
During trial, the jury was shown two autopsy photos of Ouchs unborn fetus. One showed the fetus removed from the mothers womb but still in the amniotic sack. The second showed the fetus removed from the amniotic sack and laying in a fetal position. The pictures were published to the jury during the testimony of the coroner concerning the cause of death and the viability of the fetus. On appeal, Mangsanghanh argues that the photographs were more prejudicial than probative because the cause of death and the fact that the fetus was viable were not disputed facts. The defense had offered, but the prosecutor refused, a stipulation that the fetus died as a result of the mothers injuries and that it was viable. The trial court ruled that the pictures were to be admitted because they were relevant and not unduly prejudicial. Mangsanghanh claims that admitting the pictures was an abuse of the trial courts discretion under Evidence Code section 352. In addition, Mangsanghanh claims that the admission of the photos resulted in a denial of due process.
We have reviewed the photographs in question and conclude that the trial court did not abuse its discretion in determining that the risk of undue prejudice did not substantially outweigh the photographs probative value. A court must exclude evidence under Evidence Code section 352 when the evidence tends to evoke an emotional bias against the defendant as an individual and has very little impact on the issues. Undue prejudice is not the prejudice that naturally flows from relevant, highly probative evidence. (People v. Salcido (2008) 44 Cal.4th 93, 148; see also People v. Karis (1988) 46 Cal.3d 612, 638 [evidence adverse to defendants case does not render it prejudicial within the meaning of Evid. Code, § 352].) "`Relevant evidence means evidence ... having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Whether the fetus was viable at the time of death was an issue before the jury. The prosecutor was not required to enter into a stipulation to avoid having the jury consider the full impact of the evidence. (People v. Garceau (1993) 6 Cal.4th 140, 182 [prosecution not required to accept stipulation if effect is to deprive prosecutions case of its forcefulness; prosecution not obligated to sanitize case], disapproved on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.)
While we understand why Mangsanghanh wished to minimize the nature of the crime charged in count II, the prosecutor was not required to cooperate with the defense strategy. The evidence presented was not unduly gory. (People v. Heard (2003) 31 Cal.4th 946, 976, 977.) The fetus looked as one would expect a recently extracted viable fetus to look and was posed in a natural position. Although this was unquestionably unpleasant evidence and harmful to the defense, the pictures did not create the type of prejudice that flows naturally from relevant, highly probative evidence. "The jury can, and must, be shielded from depictions that sensationalize an alleged crime, or are unnecessarily gruesome, but the jury cannot be shielded from an accurate depiction of the charged crimes that does not unnecessarily play upon the emotions of the jurors." (People v. Ramirez (2006) 39 Cal.4th 398, 454.)
There is also no merit to the argument that the photographs became cumulative once the coroner testified about the fetuss viability and to the cause of death. Our Supreme Court has consistently held that photographs of a murder victim need not be excluded as cumulative to other evidence in the case. (See People v. Cole (2004) 33 Cal.4th 1158, 1199; People v. Heard, supra, 31 Cal.4th at p. 978; People v. Gurule (2002) 28 Cal.4th 557, 625.)
Mangsanghanh also claims that she was prejudiced when the prosecutor violated the courts order and projected the photos of the fetus onto the screen during closing argument. At the time the evidence was admitted, the trial court ordered that the pictures were to be published only to the jury and were not to be displayed on the large screen set up in the courtroom. The court reasoned that family members of the victim, who were present in court, might be offended. The prosecutor, believing the ruling was limited to the time of admission, displayed the photo for five to 10 seconds in a PowerPoint presentation during closing arguments. Counsel for the defense objected and the picture was immediately removed from the screen. Defense counsel asked for a mistrial, which was denied. The court did not abuse its discretion in denying the motion for mistrial. The order, which was intended to protect the victims family, not to sanitize the prosecutors case, was violated innocently. As the court observed, the jury had already seen the pictures. We conclude that the short time the pictures were displayed on the large screen was not likely to add undue significance to the photos or prejudice the jury.
In any event, there is no prejudice to Mangsanghanh, either under the traditional abuse-of-discretion standard or the stricter constitutional standard of Chapman v. California (1967) 386 U.S. 18. There is ample evidence of guilt. Numerous witnesses placed Mangsanghanh at Yanns house prior to the shootings and saw her leave with Chea, Chhang, and Perez for the purpose of retaliating against the TRG. The group was armed. Mangsanghanh herself admitted her involvement to police. The guns the group had at Yanns house that night were traced to the killings. Further, the jurys acquittal of Perkins shows that it was not swayed by passion and prejudice, but carefully weighed the evidence related to each defendant.
II. Insufficient evidence
Mangsanghanh, who was not the shooter, was convicted on an aider-and-abettor theory of liability. She claims there is insufficient evidence to support a conviction for the murder of a fetus based on a finding that the death of a fetus is a natural and probable consequence of the shootings. Given the limited role of appellate review, Mangsanghanh faces a significant hurdle in claiming there was insufficient evidence to sustain the verdict on count II. (People v. Stanley (1995) 10 Cal.4th 764, 792.) She must establish that no rational jury could have concluded as it did. We must evaluate the evidence in the light most favorable to the prosecution and presume in support of the judgment every fact a jury could have reasonably deduced from the evidence. (See People v. Rayford (1994) 9 Cal.4th 1, 23; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) It does not matter that the facts could reasonably have supported Mangsanghanhs innocence. (People v. Millwee (1998) 18 Cal.4th 96, 132; People v. Stanley, supra, 10 Cal.4th at p. 793.)
Mangsanghanh acknowledges that the California Supreme Court has upheld a second degree murder conviction of a fetus on an implied malice theory in People v. Taylor (2004) 32 Cal.4th 863, 867-868 (Taylor), transferring the intent from the mother to the fetus, but argues that the holding in Taylor should not be extended to an aider-and-abettor case, "absent evidence that death of a fetus was a foreseeable consequence of the crime the defendant aided and abetted." In other words, Mangsanghanh argues that she should not be held liable for killing a fetus based on a finding that the shooters intended on some theory to kill the mother who was, unknown to Mangsanghanh, eight months pregnant.
In Taylor, the perpetrator knew the victim and had no reason to believe she was pregnant. There were no outward signs of pregnancy. The murderer intended to kill the mother alone, and in the absence of knowledge of pregnancy, Justice Kennard, in her dissent, reasoned that intent could not be transferred to the fetus. (Taylor, supra, 32 Cal.4th at p. 875, dis. opn. of Kennard, J. [killers conduct or expressions of intent do not permit inference that he acted with express malice toward fetus where no knowledge of pregnancy].) The majority in Taylor rejected this reasoning and concluded there was implied malice to support a conviction for the killing of both the mother and the fetus. It reasoned that malice is implied whenever the killing results from an intentional act, the natural consequences of which are dangerous to life, where the act is performed deliberately with knowledge that the act endangers the life of another, but is undertaken with conscious disregard for life. (Id. at pp. 867-868; People v. Lasko (2000) 23 Cal.4th 101, 107.) The majority in Taylor concluded that, to act with conscious disregard for life, one need not be cognizant of the identity of a victim or even of the victims existence. (Taylor, supra, at p. 868.) The jury was instructed in Taylor only on the theory of willful, deliberate, and premeditated murder. (Ibid. )
The facts in this case are different. First, the jury was instructed on two theories of first degree murder: (1) willful, deliberate, and premeditated murder and, (2) that the murder was committed while lying in wait. There need be only one viable theory for conviction. (People v. Sanchez (2001) 26 Cal.4th 834, 851.)
Second, we conclude that the death of a fetus is a foreseeable consequence of the crime committed in this case. (People v. Prettyman (1996) 14 Cal.4th 248, 260-265.) The shooters did not know any of the victims. The shooters intent, whether express or implied, was to shoot indiscriminately at anyone in TRG territory. The evidence supports a conclusion that Mangsanghanh shared in this intent. The natural and probable consequences of shooting into a group of mixed-gender young people, with the kind of firepower exhibited here, is that someone in the group will be killed. Further, the natural and foreseeable consequences of killing someone in the group invokes the reasonable possibility that someone will be pregnant and a viable fetus will be killed. An aider and abettor is guilty not only of the offense he or she intended to facilitate, but of any reasonably foreseeable offense committed by those he or she assists. (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5.)
Finally, there is evidence that Mangsanghanh intended to kill anyone unfortunate enough to be in TRG territory. The testimony of Som, Mao and Amphan Sysaknoi, and Khounvixay placed Mangsanghanh at Yanns house during the discussion of the shootings and a need for retaliation. The evidence was that the shooters intended to retaliate, not only for the early attacks on Som, but also for the TRG murder of Olina Mung, in traditional gang style. The guns were exhibited and the group was heavily armed. It is reasonable to conclude that the jurys verdict rests on a theory that the initial intent was not to assault, but to kill. As an aider and abettor, Mangsanghanh is deemed to share the perpetrators specific intent when she is aware of the full extent of the perpetrators intent and knowingly gives aid or encouragement. (§ 31; People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117.) In such a case, there is no need to supply the intent element of the crime committed by someone other than the defendant through an application of section 31. This theory renders the case authority cited by Mangsanghanh at page 41 of her opening brief irrelevant since this is not a case in which the aider and abettor to a target crime is held liable for an unintended crime.
We acknowledge that Mangsanghanh testified she did not fully understand what the shooters intended, and that she was coerced to provide the shooters transportation to and from the shootings. Other evidence, however, supports a different inference. Mangsanghanh told police that Nath Ouch deserved to die because she associated with the TRG. She spoke with derision when referring to the victim and her unborn child. Mangsanghanh expressed anger that the police had not apprehended the TRG member or members who killed Mung. A witness testified that Mangsanghanh told the group assembled at Yanns home that Mungs death needed to be revenged. A reasonable inference can be drawn from this evidence that Mangsanghanh individually harbored an intent that the shooting result in a death to avenge Mungs murder. While a contrary interpretation of this evidence may be plausible, on appeal we must accept any reasonable inference that could have been drawn by the jury. (People v. Lenix (2008) 44 Cal.4th 602, 627-628 [even if in opinion of reviewing court circumstances might reasonably be reconciled with contrary finding, reversal not warranted if circumstances justify trier of facts findings].)
We conclude there is sufficient evidence to support the verdict on count two.
III. Sentencing error
The information alleged two multiple-murder special circumstances, one in connection with each murder, and the jury found both true. Mangsanghanh correctly contends that only one special-circumstance finding is proper. The Attorney General concedes error, agreeing that one of the findings must be stricken. (See People v. Avena (1996) 13 Cal.4th 394, 425 [when defendant is convicted of more than one murder in single proceeding, only one multiple-murder special-circumstance finding is proper, other must be vacated]; accord, People v. Hardy (1992) 2 Cal.4th 86, 191.) We will vacate one multiple-murder special-circumstance finding and order that the judgment be corrected.
DISPOSITION
The judgment of conviction is affirmed. One of the multiple-murder special-circumstance findings is ordered vacated. The matter is remanded and the trial court is directed to correct the judgment and abstract of judgment, with corrected copies to be forwarded to the appropriate authorities.
WE CONCUR:
Vartabedian, Acting P.J.
Levy, J. --------------- Notes: All statutory references are to the Penal Code.