Opinion
C086120
06-05-2020
THE PEOPLE, Plaintiff and Respondent, v. MINHKHA HOANG PHAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F00643)
Defendant Minhkha Hoang Phan contends there was insufficient evidence to support his conviction for first degree murder. He further contends the trial court erred in instructing the jury on provocation. Finally, he contends the matter should be remanded for the trial court to exercise its discretion to strike the firearm enhancement, and the People concede. We will remand the matter for the trial court to consider exercising its discretion regarding the firearm enhancement but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
At 7:00 p.m. on February 19, 2015, Quan Nguyen and defendant, who is also known as "Buddha," gathered with 15 to 20 men at an auto body shop to celebrate Chinese New Year and have a few drinks. At 10:00 p.m., they went to Cafe Monaco, a local coffee shop and bar that served food and alcohol in the evening. Quan and defendant were both regulars at the cafe. That night, there were 30 people there. Although the cafe normally stopped serving alcohol at 2:00 a.m., due to the holiday, alcohol was served until 4:00 a.m. Quan and his friends drank and used cocaine. The cafe manager testified at trial that often there was gambling during the day at the cafe, but not that night because it would violate their business license to allow gambling while serving alcohol. Still, it was good luck to gamble on Chinese New Year, and police found playing cards "scattered" around outside the cafe.
By 4:00 a.m., the lights were turned up and workers had begun to clean up the cafe. The cafe's janitor, Minh Nguyen was mopping in the kitchen. Minh heard some waitresses screaming, "No Buddha, no Buddha." Minh then heard three gunshots in succession, with a pause in between and a longer pause between the second and third shots. Minh stayed in the kitchen for a few seconds and then peeked out and saw defendant walking out, carrying a handgun. Minh said, "Buddha, Buddha," and watched defendant leave. Defendant was the last one out of the cafe, except for the staff inside. Minh then saw the victim and went into shock. Fifteen minutes after the shooting, the cafe manager called the cafe owner, who came to the cafe, and then they called the police. At trial, Minh testified that he did not hear "any disturbance" between defendant and the victim prior to the shooting.
Quan heard the first gunshot and then heard Minh say to defendant, "What. . . are you doing?" Quan watched the victim approach defendant. Defendant swore in response and called the victim a name as he fired a second shot, and the victim fell to the ground. Quan ran outside. Quan had not seen defendant have any "problems" with anyone that evening, nor had he heard any arguments prior to the shots. Quan, who had been coming to the cafe twice a week for four years, did not recognize the victim, and neither did Minh.
The victim was dead when police arrived, with multiple gunshot wounds, including behind his left ear and to his upper chest. Subsequent testing revealed the victim had cocaine in his system and a blood-alcohol level of 0.16. A responding officer testified at trial that there was greying and discoloration next to the wound near the victim's ear, indicating the gun was fired "close" to the victim's head. Soot and burning of the skin near the wound also indicated the shooter fired at close range. The forensic pathologist testified at trial that the distance was no more than 12 inches.
Shell casings at the scene indicated a semiautomatic firearm was used during the shooting. At trial, a police criminalist who testified as a firearms and tool marks expert opined that the casings found at the scene were fired from the same gun. Police subsequently found a cannister containing live nine-millimeter ammunition, hidden in a beer can in the car defendant was driving. The police criminologist testified at trial that the ammunition found in the car fit the same firearm as the casings found at the scene. Police also found in defendant's home a gun cleaning kit and live nine-millimeter and .38-caliber ammunition.
At trial, defendant testified that he arrived at Cafe Monaco at 10:00 or 11:00 p.m. the night before the shooting. He brought a gun with him because he feared being robbed on the way home. After arriving, defendant spent the next hour socializing and drinking beer. Eventually, people started leaving, so defendant sat down at a table to play a game on his cell phone.
Defendant first noticed the victim when he pointed a finger at defendant from the other end of the table. At the time, there were at least four other people sitting at the table. The victim swore and threatened to beat up defendant. The victim pulled a gun and pointed it at defendant's face. Defendant heard a woman screaming, "No." After freezing for a minute with fear, defendant pulled his gun and fired two shots at the victim. At the time, defendant was only four to five feet from the victim. The victim jumped over the table to rush at defendant, trying to grab his neck and face. In response, defendant fired a third shot, ran out of the cafe, and fled in his car. While driving home, defendant threw the gun out of his car. The entire shooting took only four seconds. Defendant testified at trial that he did not intend to shoot the victim and described his actions as a reflex or "reaction."
In August 2017, a jury found defendant guilty of first degree murder. (Pen. Code, § 187, subd. (a).) The jury also found the firearm enhancements true. (§ 12022.53, subds. (b)-(d).) In December 2017, the trial court sentenced defendant to state prison for an aggregate term of 50 years to life, as follows: 25 years to life for the murder conviction (§ 190, subd. (a)) and 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)). During the sentencing hearing, the trial court noted the shooting "didn't make a lot of sense to me," but a man who "clearly was greatly loved with a caring and now devastated family" was now "dead at your hands."
Undesignated statutory references are to the Penal Code.
DISCUSSION
I
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence--that is, evidence that is reasonable, credible, and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] We determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.]" (People v. Avila (2009) 46 Cal.4th 680, 701, italics omitted.) A reviewing court does not reweigh evidence or reevaluate a witness's credibility. (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Defendant contends his conviction must be reduced to second degree murder because there was insufficient evidence of premeditation and deliberation. According to defendant, the shooting occurred during a "brief, sudden confrontation with [the victim]." Citing People v. Anderson (1968) 70 Cal.2d 15 (Anderson), defendant further argues there was minimal evidence of planning activity and no evidence of motive, especially since there was no evidence of any prior relationship between the victim and himself.
"A murder that is willful, deliberate, and premeditated is murder in the first degree. (§ 189.) ' " 'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance. [Citations.] 'The process of premeditation . . . 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. . . ." [Citations.]' " ' [Citations.] [¶] ' " 'An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.' " ' " (People v. Brady (2010) 50 Cal.4th 547, 561.)
The Anderson court identified categories of evidence relevant to a determination of premeditation and deliberation: (1) preexisting motive, (2) planning activity, and (3) manner of killing. (Anderson, supra, 70 Cal.2d at pp. 26-27.) Still, "[t]he Anderson factors are not the exclusive means for establishing premeditation and deliberation." (People v. Lenart (2004) 32 Cal.4th 1107, 1127.) For example, evidence of an execution-style killing may show such calculation that "the manner of killing will support a jury finding of premeditation and deliberation, despite little or no evidence of planning and motive." (Ibid.)
Despite defendant's contentions about the lack of motive or prior relationship, a jury could reasonably find defendant murdered the victim with premeditation and deliberation, based on the manner of killing. Defendant shot the victim three times at close range, including in the head from no more than 12 inches away. The shots impacted the victim in his chest and head, indicating defendant's deliberate intent to kill. (See People v. Koontz (2002) 27 Cal.4th 1041, 1082 [firing at a vital area at close range supports finding of premeditation and deliberation].)
In addition, the evidence indicated defendant, who had brought a gun with him that night, had time to reflect on his conduct before and during the shooting. (Lenart, supra, 32 Cal.4th at p. 1127 [there is no requirement for an "extensive time to premeditate and deliberate"].) Minh testified that he heard waitresses screaming, "No" at defendant just before the shots were fired. Quan testified that, after the first gunshot, he heard Minh say to defendant, "What. . . are you doing?" As the victim approached, Quan heard defendant swear and call the victim a name as he fired a second shot, and the victim fell to the ground. In sum, substantial evidence supports the jury's verdict of first degree murder.
II
Defendant contends the trial court failed to adequately explain the concept of subjective provocation sufficient to reduce murder from first degree to second degree. As relevant here, the trial court instructed the jury under CALCRIM 520 [First or Second Degree Murder With Malice Aforethought], CALCRIM 521 [First Degree Murder], CALCRIM 522 [Provocation: Effect on Degree of Murder], and CALCRIM 570 [Voluntary Manslaughter: Heat of Passion--Lesser Included Offense].
Despite the fact that similar arguments were considered and rejected in People v. Jones (2014) 223 Cal.App.4th 995 and People v. Hernandez (2010) 183 Cal.App.4th 1327, defendant contends that the trial court erroneously failed to instruct the jury that subjective provocation may be a defense to first degree murder and reduce the killing to second degree murder. According to defendant, the only definition of provocation given was in the voluntary manslaughter instruction (CALCRIM No. 570), and it referred only to an objective standard. The People contend defendant forfeited the issue by failing to request a clarifying instruction. We need not reach this issue, because we find defendant's contentions without merit.
The trial court must sua sponte instruct the jury on "'general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case.' " (People v. Anderson (2011) 51 Cal.4th 989, 996.) This obligation extends to instructions on the defendant's theory of the case, including defenses the defendant relies upon so long as (1) there is substantial evidence to support the defense and (2) the defense is not inconsistent with the defendant's theory of the case. (Ibid.) We review de novo whether the instructions were adequate, based on whether the trial court " 'fully and fairly instructed on the applicable law.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) We consider the instructions as a whole and " ' "assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." ' " (Ibid.)
Viewed as a whole, the jury was instructed that, although subjective provocation alone was insufficient to reduce murder to manslaughter, it would reduce the degree of murder from first to second. Pursuant to CALCRIM No. 500, the jury was instructed that defendant was charged with murder, and manslaughter as a lesser included offense of murder.
The trial court instructed the jury pursuant to CALCRIM No. 522 that "[p]rovocation may reduce a murder from first degree to second degree and may reduce murder to manslaughter." The instruction clarified that the jury was required to analyze provocation separately, first with respect to the degree of murder, and then with respect to voluntary manslaughter: "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."
With respect to voluntary manslaughter, pursuant to CALCRIM No. 570, the jury was directed to consider that "[a] killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion." The instruction went on to inform the jury of the elements of voluntary manslaughter: "1. The defendant was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; and [¶] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment." The instruction continued, "It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. 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." As such, CALCRIM No. 570 makes clear that objective provocation reduces murder to voluntary manslaughter.
In contrast, the jury was instructed that subjective premeditation and deliberation were necessary for first degree murder. Pursuant to CALCRIM No. 521, the jury was informed that: "The defendant is guilty of first degree murder if the People have proved that 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 death." (Italics added.) The subjective standard is repeated in other portions of the instructions for first degree murder: "The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances." (Italics added.) Similarly, the instruction made clear that the jury could not reach a first degree verdict based on defendant's "decision to kill made rashly, impulsively, or without careful consideration," because such a decision "is not deliberate and premeditated."
In sum, the instructions directed the jury to separately consider provocation on the degree of murder and for voluntary manslaughter. They also made clear that subjective premeditation and deliberation are necessary for first degree murder, and they limited discussion of objective provocation to voluntary manslaughter. We find that the trial court's instructions accurately and completely stated the governing law. (People v. Jones, supra, 223 Cal.App.4th at pp. 999-1001; People v. Hernandez, supra, 183 Cal.App.4th at pp. 1334-1335.)
Defendant attempts to distinguish this case from Jones by arguing that, despite the instructions, the prosecutor confused the jury during closing argument regarding the definition of provocation with the following statement: "The lesser offense to murder is voluntary manslaughter. . . . [¶] . . . [T]he People's position [is] that the evidence does not support heat of passion, sudden quarrel, voluntar[y] manslaughter. There's no sufficient provocation. Remember the reasonable person standard? [¶] . . . [¶] If you find that there was provocation, some words [the victim] said to [defendant] that were offensive, is that really sufficient provocation that a person of average disposition would have acted from passion rather than judgment, rashly without any deliberation? [¶] And the law states very clearly, slight or remote provocation is insufficient. He's not allowed to set his own standard." Because the prosecutor limited her description of objective provocation as to voluntary manslaughter, we find no error.
III
Senate Bill No. 620 (2017-2018 Reg. Sess.), which went into effect on January 1, 2018, (Stats. 2017, ch. 682, §§ 1-2) amends sections 12022.5 and 12022.53 to remove the mandatory firearm enhancement and grant the trial court discretion pursuant to section 1385 to strike or dismiss an enhancement. "The court may, in the interest of justice pursuant to Section 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." (§§ 12022.5, subd. (c), 12022.53, subd. (h).)
As both parties acknowledge, the amendment to section 12022.53 is retroactive and applies to cases like defendant's which are still on appeal and not yet final. (People v. Woods (2018) 19 Cal.App.5th 1080, 1091.)
In sentencing defendant, the trial court imposed the mandatory sentence terms of 25 years to life for the first degree murder conviction and the firearm enhancement. (§§ 187, 190, 12022.53, subd. (d).) Although the court described the shooting as senselessness and noted that the victim had a loving family, there was no indication whether the court would have exercised its discretion to not strike the firearm enhancements. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) The appropriate remedy is to remand this case to the trial court to exercise its discretion to strike the firearm enhancements under section 12022.53, subdivision (h). (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.)
DISPOSITION
The matter is remanded for the trial court to consider exercising its discretion under section 12022.53, subdivision (h) to strike the firearm enhancement. If the firearm enhancement is stricken, the trial court is directed to prepare an amended corrected abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
BLEASE, Acting P. J. We concur: /s/_________
MAURO, J. /s/_________
MURRAY, J.