Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Hajek

Supreme Court of California

May 5, 2014

THE PEOPLE, Plaintiff and Respondent,
v.
STEPHEN EDWARD HAJEK AND LOI TAN VO, Defendants and Appellants

As modified July 23, 2014.

Page 1145

[Copyrighted Material Omitted]

Page 1146

[Copyrighted Material Omitted]

Page 1147

[Copyrighted Material Omitted]

Page 1148

[Copyrighted Material Omitted]

Page 1149

[Copyrighted Material Omitted]

Page 1150

[Copyrighted Material Omitted]

Page 1151

[Copyrighted Material Omitted]

Page 1152

[Copyrighted Material Omitted]

Page 1153

[Copyrighted Material Omitted]

Page 1154

[Copyrighted Material Omitted]

Page 1155

[Copyrighted Material Omitted]

Page 1156

Superior Court of Santa Clara County, No. 148113, Daniel E. Creed, Judge.

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Alison Pease, Deputy State Public Defender, for Defendant and Appellant Stephen Edward Hajek.

Doron Weinberg and Kathryn K. Andrews, under appointments by the Supreme Court; Law Offices of Doron Weinberg and Marilyn A. Waller for Defendant and Appellant Loi Tan Vo.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Nanette Winaker and Moona Nandi, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion by Baxter, J., with Cantil-Sakauye, C. J., Werdegar, Chin, Corrigan, and Liu, JJ., concurring. Concurring and dissenting opinion by Kennard, J.[*]

OPINION

Page 1157

[324 P.3d 111] [171 Cal.Rptr.3d 260] BAXTER, J.

Defendants Stephen Edward Hajek and Loi Tan Vo were convicted of the 1991 murder of Su Hung (Pen. Code, § 187) [1] as to which lying-in-wait and torture-murder special circumstances were found true (former § 190.2, subd. (a)(15), (18)). Additionally, defendants were convicted of four counts of premeditated attempted murder (§ § 664, 187), one count of kidnapping (§ 207, subd. (a)), three counts of false imprisonment (§ § 236, 237), one count of robbery (§ § 211, 212.5, subd. (a)), and one count of first degree burglary (§ 459, former § 460.1). Hajek was separately convicted of dissuading a witness. (§ 136.1, subd. (c)(1).) The jury also found true firearm use allegations as to Hajek and deadly or dangerous weapon use allegations as to Vo, in their commission of the murder, attempted murder, kidnapping, and false imprisonment counts. (Former § § 12022, subd. (b), 12022.5, subd. (a).)

Following the penalty phase trial, the jury returned verdicts of death as to each defendant, which the trial court declined to modify. The court sentenced each defendant to death for the murder of Su Hung, and on the remaining counts, sentenced [171 Cal.Rptr.3d 261] Hajek to life plus 21 years and Vo to life plus nine years. This appeal is automatic.

For the reasons set forth herein, we reverse the lying-in-wait special-circumstance findings as to both defendants. (See post, pt. II.B.1.a.) We also order that the firearm use enhancements found true as to defendant Hajek be struck and replaced with deadly or dangerous weapon use enhancements. (See post, pt. II.B.1.d.) In all other respects, the death judgments are affirmed.

I. Facts

A. Guilt Phase

On the morning of January 18, 1991, defendants gained access to the Wang residence, where they held various members of the family hostage for several hours. [2] At some point, they killed Su Hung, the family's 73-year-old grandmother, who was visiting from Taiwan. The attack on the Wang family was in retaliation for a minor altercation a few days earlier between the family's teenage daughter, Ellen, defendant Hajek, and a girl named Lori Nguyen, who was a friend of both defendants. On the night before the attack, Hajek told another friend that he was going to the house of an unidentified girl who had threatened him. He said he planned to kill each member of her family

Page 1158

while she watched and then kill her last. The next day, he and Vo went to the Wang residence, where the events transpired that led to the charges in this case.

1. Prosecution Evidence

a. The altercation between Hajek, Nguyen, and Ellen

On January 14, 1991, between 4:30 and 5:00 p.m., Hajek and his friend, Lori Nguyen, were sitting in front of a Baskin-Robbins store eating ice cream. Hajek was 18 years old and Nguyen was 15 or 16. Ellen, also 16, and six friends walked past the pair on their way to a Fry's Electronics store. Ellen had once been good friends with Nguyen, but they had had a falling out. She had never seen Hajek before. One of Ellen's friends, Tina Huynh, testified that Nguyen was " dogging" or giving them " a dirty look" as they passed. Huynh called Nguyen a " bitch," and Nguyen responded in kind.

Subsequently, as Ellen and her friends crossed a parking lot, Hajek drove up in a white van and stopped. Nguyen was in the passenger seat. She and Huynh exchanged words and began to struggle, while Nguyen was still sitting in the car and Huynh was standing outside. Huynh's sister, Jacee, and then Ellen joined the fight with Nguyen. Noticing the car's ignition had been pulled out, Ellen yelled, " The car is picked," meaning it had been stolen. Hajek exited the van, picked Ellen up, and threw her into some bushes. Ellen and Hajek cursed each other before Hajek and Nguyen drove off.

[324 P.3d 112] Hajek and Nguyen went to Hajek's house. At some point in the evening Ellen and Hajek spoke on the phone. Ellen asked Hajek if he had a problem with her or wanted to start something with her. The conversation ended with their screaming obscenities at each other. Ellen testified she had no further communication with Hajek, but Nguyen testified that Ellen made a series of " crank calls" to Hajek that evening and threatened to have friends of hers kill him. Nguyen testified that Hajek threatened Ellen in return and " probably" discussed getting revenge. At some point, while Nguyen was still at Hajek's house, defendant Vo showed up. Vo [171 Cal.Rptr.3d 262] was present when some of the crank calls from Ellen to Hajek were made.

Vo and Hajek were very close friends and part of a group of friends that also included Nguyen. Vo harbored intense feelings for Nguyen that she did not reciprocate because she had a boyfriend. Hajek also had romantic feelings toward Nguyen that she did not return.

b. Hajek's conversation with Tevya Moriarty

On the evening of January 17, 1991, three days after the fight, Hajek telephoned Tevya Moriarty. Moriarty and Hajek had worked together at the

Page 1159

Home Express during the summer of 1990. Moriarty had been on friendly terms with Hajek, though he was not a close friend. Moriarty asked him if he was going out with anyone. Hajek told her that he was going out with an Asian girl and that they had been involved in a fight after getting ice cream a few days earlier. He told her that he had pushed a girl into some bushes during the incident and that he wanted to get back at that girl. He said he was going to go to the girl's house and kill her and her family. Hajek told Moriarty he planned to kill the girl's family first and to kill her last because he " wanted to look in her eyes when he killed her." He also said he was going to make the incident look like a robbery. Hajek said all this in a conversational tone of voice. Moriarty did not believe he was really planning to do these acts.

The next day, Moriarty saw a television report of the crimes at the Wang residence and told her parents about her conversation with Hajek. When she learned that Hajek was one of the culprits, she went to the police. Moriarty talked to the police on January 21, 1991, and told them it was her impression Hajek was going to enlist two other people to commit the murder and robbery. However, at trial, she could not recall what in the conversation had given her that impression and testified that Hajek spoke only of himself.

c. Hajek and Vo gain entry into the Wang residence

On January 18, 1991, the Wang family--parents Cary and Tony, and daughters Ellen and 10-year-old Alice--lived on Silver Leaf Road in San Jose. Also staying with them was 73-year-old Su Hung, Cary's mother, visiting from Taiwan. On the morning of January 18, only Su Hung and Alice were at home.

Around 10:00 a.m., Hajek and Vo came to the door. Alice answered it. They told her they wanted to see Ellen because they had a sweater for her. Alice told them Ellen was not home. Vo handed her the sweater, and they left. A few minutes later, defendants returned. When Alice answered the door, they said they wanted to write a note to Ellen. Alice testified she did not invite defendants inside the house, but " [t]hey just came in." Alice gave them a pen and paper. Su Hung was in the kitchen. They wrote the note, and Alice put it on the sweater. They then called Alice over, and Hajek pointed a gun at her. Hajek told Alice to get her grandmother.

Alice had to use the bathroom. Alice testified Vo told her to take her grandmother with her. When Alice and Su Hung came out of the bathroom, Vo tied up Su Hung using rope from the laundry room, which he cut with scissors or a knife. He then blindfolded her. Su Hung was trembling but compliant. Vo took her upstairs while Hajek remained downstairs with Alice,

Page 1160

watching cartoons. Although Hajek had put the gun in his waistband, Alice was frightened. Vo came downstairs, and then Hajek took Alice to the upstairs bathroom, where she remained for what seemed like a long time [324 P.3d 113] before defendants [171 Cal.Rptr.3d 263] told her she could come out. While she was in the bathroom, she heard clattering noises, like marbles or coins. Vo took her downstairs; 10 minutes later Hajek followed. At some point, Alice's mother, Cary, called the house. Alice was allowed to answer the phone, but defendants told her to speak English.

Alice testified that Cary told her she was coming home and, as previously planned, she was going to take Su Hung to the beauty salon, and then the three of them would go out to lunch. Alice did not typically speak to her mother in English, and Cary asked if anything was wrong. Alice was frightened and said no. Sometime later, maybe a half-hour, Alice heard the garage door open. Vo went into the downstairs bathroom after taking a knife from the kitchen. Before he went into the bathroom, Vo told Alice to stay seated on the sofa and to try to calm her mother down.

Cary testified that when she entered the house through the garage, Vo came out of the bathroom, placed a hand over her mouth, and with the other hand held a knife to her throat. Vo told Cary not to scream, or he would kill her whole family. Both he and Hajek were wearing gloves. Cary was upset and frightened. She told Vo to put down his knife and she would give him anything he wanted as long as he did not hurt her family. She ended up sitting with Vo at the dining room table. Vo told Cary he was looking for Ellen because she had had an argument with his relative at school. At some point, Vo returned the knife to the kitchen. Alice told her mother the men had had a gun and had pointed it at her. Hajek also told her he had two guns, although Cary never saw a gun.

Cary repeatedly begged defendants to allow her to see her mother because Su Hung suffered from high blood pressure. Hajek went upstairs alone, and then a second time he went upstairs with Alice. When Alice went upstairs with Hajek, she was not allowed to go into the room where her grandmother was being held. She stood at the doorway and " peeked" into the room, but could only see her grandmother's legs. Alice reported to her mother that her grandmother was reading a newspaper. [3]

Page 1161

d. Vo and Cary go to Ellen's school; Tony comes home

Cary told defendants that Ellen would be home around 3:00 p.m. On direct examination, Cary testified that Vo said he could not wait that long and demanded that Cary take him to Ellen's school. He told her that Ellen and his relative had had an argument at school and that he had come to the Wang residence to teach her a lesson. He said she would know what kind of lesson when Ellen got home. Cary testified that when Vo said this, he " look[ed] mean." Before they left, Cary asked if she could cancel some appointments, a ruse to call her husband, Tony. She called Tony and told him she needed to cancel a 1:00 o'clock appointment. Tony was surprised to hear from her. She sounded strange to him. He asked Cary if she meant he should come home at 1:00 o'clock. She said yes. Cary was allowed to make a second call to her office, a travel agency, where she spoke to Sofia Kuo. She told Kuo she had to cancel an appointment because there was an emergency at home [171 Cal.Rptr.3d 264] " similar to something that happened before." Cary was alluding to the burglary of her house two years earlier. She hoped the hint would alert Kuo.

Vo and Cary left in Cary's car. Vo told her he had a gun. When they got to Ellen's school, Cary was told that Ellen was not there. Vo stayed at her side. After they left the school, Cary told him she had emergency airline tickets that she needed to drop off at her office. When they arrived at the office, Cary managed to tell a man named Paul, who worked next door, to call the police. She and Vo then drove back to the Wang residence. On the way, they passed a police car and Vo asked her whether she had called the police. He had repeatedly threatened to kill her family if she called the police. When they [324 P.3d 114] got to her house, Vo ordered her to park in the garage.

While Cary and Vo were out, Tony had come home. He testified that when he entered the house, he saw Alice sitting with Hajek at the dining room table playing cards. Alice told him that defendants had guns and a knife. She also told him he could not use the telephone or go upstairs. Hajek had one of his hands in his pocket. Tony was scared. He sat down at the table and asked Alice where his wife had gone. She told him Cary and another man had gone to look for Ellen. Tony asked Hajek what he wanted. Hajek said there was a problem between Ellen and his girlfriend. He wanted to " bring her home and then scare her." Tony said if there was a problem, maybe there was something they could do to solve it. Hajek said they had to wait until Ellen was home. Tony played cards with Alice and Hajek. Hajek kept one of his hands in his pocket. He was wearing gloves.

When Cary and Vo arrived, Tony offered defendants money and to have his daughter apologize. One of them said there was nothing to do until Ellen came home. Tony testified that each defendant went upstairs separately

Page 1162

" many times," but he could not remember how many times or how long they remained upstairs. At one point, Hajek again took Alice upstairs to the room where Su Hung was being held. Alice thought she was sleeping but did not get a very clear look at her. Hajek ordered Alice to tell her parents that her grandmother was okay.

Vo told Hajek that Tony looked very strong and Vo needed to tie him up. Vo tied Tony's hands behind his back, and Hajek took him upstairs to the master bedroom. Tony asked to see his mother-in-law, but Hajek refused and said she was fine. In the master bedroom, Hajek tied Tony to the bed. Hajek threatened to kill Tony if he screamed. Tony was frightened. Tony asked to speak to Vo because he thought it would be easier to talk to another Asian. Vo came into the room and sat down by the bed. He spoke to Tony in a " very mean" way and threatened to kill him if he yelled. Then Vo gagged him.

e. The police arrive and capture defendants; Su Hung's body is discovered

While Tony was being taken upstairs, a Mr. Cho called. He worked with Paul, the man Cary had earlier told to call the police. Cary answered the phone. Cho told her to answer yes or no and asked if she needed the police right away. Cary said yes. A few minutes later the doorbell rang--it was the police. Hajek told Alice to answer the door. As they walked toward it, Cary called to Alice in Chinese and they ran into the garage. Cary opened the garage door, and they ran to the waiting police. Cary yelled that people were still inside. She was frightened and agitated. Hajek was apprehended in the backyard as he attempted to flee. He [171 Cal.Rptr.3d 265] was carrying what appeared to be a black revolver in his hand, but he threw it down when he was ordered to stop and shouted, " It's a pellet gun." Vo tried to run out of the house, but ran back in when a police officer pointed his shotgun at him and told him to stop. Vo stumbled and fell, and the police apprehended him. Vo was unarmed.

Police found Tony bound and gagged in the master bedroom. When the gag was removed, he said he was concerned about his mother-in-law. Su Hung was found on the floor of her bedroom, her body covered by a comforter. Her hands were tied behind her back, her mouth was gagged, and her throat had been slashed. The area around her was covered with blood, and she was dead.

f. Physical and medical evidence

In a neighborhood canvass, the police found a stolen minivan parked around the corner from the Wang residence. It was later determined to have been the vehicle defendants used. The car's ignition switch had been removed, and there was a screwdriver in the center console. Items found in the

Page 1163

minivan included packaging for a pair of leather bike gloves, a plastic grip for a pellet gun that matched the gun Hajek threw to the ground, and two knives.

In the laundry room of the Wang residence, where Vo was arrested, police found a brown paper bag containing five bottles of cooking oil and $ 278 in cash. At the top of [324 P.3d 115] the stairs, police found a black bag containing items taken from various rooms of the house.

Blood found on a glove used by Hajek was consistent with Su Hung's blood. A bloodstain found on Hajek's jacket was too small for additional testing to determine whether it was human. The serologist testified the blood on the jacket could have been transferred from the blood on Hajek's gloves. No bloodstains were found on Vo's clothing. Another pair of gloves, however, was found on the kitchen table. A knife in the kitchen sink tested positive for blood, but it could not be determined whether the blood was human or animal, fresh or old.

Dr. Angelo Ozoa, the chief medical examiner for Santa Clara County, performed the autopsy on Su Hung. At the time of her death, Su Hung was five feet one inch tall and weighed 87 pounds. Her death was caused by strangulation and an incised wound to her neck. She was first strangled and then, while she was still alive, her throat had been slashed. Ozoa could not provide a time of death. He saw other injuries on the body in addition to the lethal injuries. There was a recent bruise on the right side of Su Hung's chin caused by blunt force, possibly from a fist. There was a nonlethal stab wound to her left shoulder, one-inch long and one-inch deep, which was inflicted and bled while she was still alive. The left side of Su Hung's chest had five " very superficial" cuts, which Ozoa indicated could have been inflicted while she was alive, even if these cuts produced no bleeding. He found no defensive wounds or anything that indicated a struggle.

Su Hung had been strangled with a cord and gagged with a towel. The cord had been pulled so tight it left a furrow around her neck, and the towel was saturated with blood. Dr. Ozoa found petechial hemorrhages--burst blood vessels--all over Su Hung's face, on her eyelids, and on the lining around her eyeballs. The presence of petechiae indicated that she had been strangled before her throat was cut and that sufficient pressure had been applied to her neck to cut off the flow of blood from the head to the heart. Ozoa also found that the victim's thyroid cartilage-- [171 Cal.Rptr.3d 266] her Adam's apple--had been fractured while she was being strangled. Ozoa testified the amount of petechiae indicated she had been strangled slowly.

The incised wound on Su Hung's neck was three and a half inches in length and three-quarters of an inch deep. She had been cut through the

Page 1164

trachea and the jugular vein on the right side of her neck was also partly severed. The amount of bleeding from the cut indicated she was still alive when it was inflicted. Dr. Ozoa could not say how long it had taken for Su Hung to die. Nor could he say whether she experienced extreme pain, because it was possible the strangulation had rendered her unconscious.

2. Defendant Hajek's Evidence

Hajek conceded his guilt of the kidnapping, false imprisonment, robbery, burglary and dissuading a witness counts, but claimed that because he was mentally ill before and during the commission of the crime, he did not have the specific intent necessary for the murder and attempted murder counts.

Hajek was born in Florida in September 1972 and was abandoned by his biological mother at birth. He was placed in a series of foster homes before Linda and Bob Hajek adopted him when he was two years old. Hajek suffered from physical and psychological problems at the time he was adopted. He engaged in repetitious behavior and was very withdrawn. He sometimes went into screaming panics when he heard loud noises such as sirens, and he sometimes banged his head against the wall. He was afraid of being dirty and once, when he dropped some food, he turned white and covered himself as though he feared Mrs. Hajek was going to beat him. The Hajeks made every attempt to make Hajek feel safe and secure. Mr. Hajek, a firefighter, resigned from the military rather than accept a transfer to Germany that would have separated him from his wife and son. By the time the Hajeks moved to California, when Hajek was about five, he was more like a normal child, though he still had problems.

When he was 15 or 16, Hajek's behavior began to deteriorate. Mrs. Hajek described [324 P.3d 116] him as " explosive, angry," and " easily frustrated." Early in high school, he had belonged to the ROTC, but he dropped out of it and began to surround himself with mostly Asian friends. Hajek became so involved in Vietnamese culture that he claimed to be Asian and would speak in what sounded like an Asian language. Hajek also became obsessed with Japanese animation.

Around this time, Hajek was arrested for indecent exposure after he " streaked" through his neighborhood. Hajek told his probation officer, Sally Lowell, that he had run through his apartment complex naked to get even with a neighbor who was always picking on him. Hajek's parents told Lowell they believed there was distortion in Hajek's thought process. The police report of the incident contained a notation that Hajek's behavior when he was arrested--he was volatile, profane and angry--suggested psychiatric problems. The court ordered counseling. A psychological evaluation confirmed

Page 1165

that Hajek had emotional problems. The doctor who evaluated Hajek described these problems as a lack of trust in others, pervasive loneliness, extreme sensitivity, and an inability to express hostility in a direct manner, which led Hajek to isolate himself.

Lowell had Hajek placed in a school and counseling program. Hajek did not complete the program because he was arrested for driving a stolen car and being in possession of a bank card that was not his own. A third juvenile delinquency petition was sustained after Hajek got into a fight [171 Cal.Rptr.3d 267] with a coworker and broke that boy's nose. These arrests all occurred between March and June 1989. Lowell placed Hajek in a second program in the summer of 1989, but he was subsequently expelled.

Dr. James Griffin, a clinical psychologist, treated Hajek from June to December 1989. Based on the results of psychological testing, his review of background information, and his counseling sessions with Hajek, Griffin found Hajek to be " significantly disturbed." Griffin testified Hajek had an impaired sense of reality and demonstrated an inability to control his emotions, impulsivity, difficulty relating to other people, and a low tolerance for frustration. Ultimately, Griffin decided Hajek needed inpatient care. Griffin recommended that Hajek be hospitalized because he was depressed, decompensating, and moving toward schizophrenia.

Hajek was admitted to Monte Villa Hospital at the end of 1989 and remained there until early 1990. John Hennessey, a social worker, and Dr. Dean Freelander, a psychiatrist, both worked with Hajek and testified about his hospitalization. Both men testified that Hajek's behavior improved once he was put on the drug lithium, which is used to treat bipolar disorder. While Freelander was reluctant to diagnose Hajek with bipolar disorder because he did not meet all the diagnostic criteria, Freelander had " no doubt" that Hajek was mentally ill and possibly in the early stages of bipolar disorder.

Dr. Rhan Minagawa, a clinical psychologist, testified as the defense mental health expert. Minagawa interviewed Hajek, administered psychological tests, and reviewed material regarding Hajek's medical, psychological, and social history as well as the circumstances of the crime. Minagawa concluded that when the offenses occurred, Hajek was mentally ill and suffering from a cyclothymic disorder and a borderline personality disorder with antisocial traits. Minagawa explained that a cyclothymic disorder is a mood disorder similar to, but not as serious as, bipolar disorder.

Page 1166

According to Dr. Minagawa, people with borderline personality disorders have several characteristics, including problems with identity, problems developing relationships, self-destructive behaviors, and suicidal ideation. Minagawa explained the identity problems manifested in the inability of such individuals to " know who they are," which would cause them to " fluctuate between thinking they are going to be one way or another way." In Hajek's case, one indication of this problem might have been his overidentification with Asian culture to the point where he claimed to be Asian. By suicidal ideation, Minagawa was referring to individuals with this condition " talking about suicide." Such people may also have transient periods of paranoid delusions. Under stress they undergo dissociation, where they " separate themselves out of their bodies." Minagawa testified that [324 P.3d 117] Hajek's personality disorder was primarily the result of environmental factors. He traced Hajek's borderline personality disorder to the time of his birth, when his mother abandoned him, and to the disruptions in his attachments while he was moved around in foster care during the first two and a half years of his life.

In Dr. Minagawa's opinion, Hajek was in a hypomanic state between January 17 and January 21, 1991, encompassing the time just before, during, and just after Su Hung's murder. Therefore, according to Minagawa, Hajek's judgment was impaired to the point that he was acting irrationally. Minagawa's testimony was the basis of Hajek's " diminished actuality" defense, in which his attorney argued his mental illness prevented him from forming the mental [171 Cal.Rptr.3d 268] states required for murder and attempted murder.

3. Defendant Vo's Evidence

Vo conceded his guilt of the false imprisonment counts but argued that he had gone with Hajek only to frighten Ellen, and that Hajek alone had killed Su Hung while he was in the midst of a manic episode. To that end, Vo presented witnesses who testified regarding Hajek's prior acts of seemingly impulsive violent behavior. James O'Brien testified that when he and Hajek worked at a Round Table Pizza, Hajek had punched the then 15-year-old O'Brien in the face, breaking his nose, apparently because he was upset that O'Brien was getting off work early. Douglas Vander Esch, a Santa Clara correctional officer, testified about an episode involving Hajek at the county jail. Hajek told Vander Esch he wanted to talk to a sergeant without disclosing why. Vander Esch told him he would have to fill out a grievance form, which he would then give to the sergeant for Hajek. Hajek responded by destroying various items in the day room including a television, glass on a bulletin board, glass around a shower, a sink, a coffee pot, and a telephone.

The bulk of Vo's defense, however, consisted of his own testimony. Vo testified that Hajek came to his house on the morning of January 18, 1991,

Page 1167

and roused him from bed. After driving to a couple of other stops, they ended up at the Wang residence. Vo did not know Ellen. Hajek had a problem with Ellen and wanted to talk to her. Vo testified he was " just a tag along" in case the confrontation became hostile. Hajek said nothing to Vo about killing Ellen or any of her family members.

Vo affirmed they entered the house on the pretext of writing a note to Ellen, because they did not believe Alice when she said Ellen was not home. Vo admitted taking Su Hung upstairs and tying her up because, he said, she " seemed to be angry and hostile" and he did not want " thing[s] [to] get out of hand."

Vo also admitted he " pulled a knife" on Cary when she came home. He denied pressing it to her neck, testifying that he " flashed it" to " scare her" and that he told her, " Don't scream and no one will get hurt." Vo claimed he made a show of putting the knife back into the knife holder so Cary would not be frightened of him. He also testified it was Cary's idea to go look for Ellen at Ellen's high school.

Under cross-examination by the prosecutor, Vo confirmed he and Hajek had arrived at the Wang residence in a stolen vehicle and were wearing gloves. He admitted Hajek had a gun and pointed it at Su Hung. Vo also confirmed that he was at Hajek's house after Hajek's altercation with Ellen and that he was told about the incident. Vo acknowledged he decided to tie up Tony because he thought Tony " could be a problem." According to Vo, Hajek took Tony upstairs, and when Hajek came back downstairs, he told Vo that Su Hung was dead. Vo testified he went upstairs to see for himself and was shocked to discover Su Hung's body. Vo then went to the room where Tony was being held. Tony was " talking and talking," so Vo gagged him. A couple of minutes later, Vo heard the police at the door downstairs. Vo did not surrender because he was panicked and confused. He gave the police a false name because he was afraid of the media.

Under cross-examination by Hajek's attorney, Vo admitted he wrote Nguyen a letter in December 1992, in which he said, among other things, " I can't explain my feeling towards you. It's both hate and love. I hate [324 P.3d 118] you for loving you so much ... . When I say I love someone, I [171 Cal.Rptr.3d 269] always will." Nonetheless, Vo denied his feelings for Nguyen motivated him to join Hajek in going to the Wang residence.

B. Penalty Phase

1. Prosecution Evidence

The prosecution's penalty phase case relied almost entirely on the circumstances of the crime. The prosecution called a single victim impact witness,

Page 1168

Ellen. Ellen testified her grandmother Su Hung had taken care of her in Taiwan until she was five. Even after Ellen and her family moved to the United States, she and her grandmother remained close. They spoke weekly on the telephone, and Su Hung came to visit every year, staying three to six months. Ellen missed her grandmother and blamed herself for her death. She did not return to school for several months after the murder because her mother, Cary, was frightened and did not want her children or her husband out of her sight.

After Su Hung's death, Cary and Tony sold their residence at a loss because it had too many bad memories. Cary sold her business, and she and Tony separated. Cary moved to Taiwan, while Tony remained in the United States. Cary still cried when she thought about her mother or saw her picture.

2. Defendant Hajek's Evidence

June Fountain, the social worker who oversaw Hajek's eventual placement with his adoptive parents, testified about that process. Hajek was abandoned by his birth mother in the hospital and placed in foster care with a couple who wanted to adopt him. Because Florida prohibited the adoption of children by their foster parents, Hajek was abruptly removed from the first foster home and placed in a second foster home. Nine months later, Hajek was removed from that second home and placed for adoption with another couple.

This couple already had a six-year-old biological daughter, and they wanted to adopt a son between the ages of two and three. They failed to disclose to Fountain that the wife was pregnant when Hajek was placed in their home. Fountain was concerned that if the wife gave birth to a boy, the husband might reject Hajek. Nonetheless, she did not want to remove Hajek from yet another home. Based on her observations of the couple's parenting of their daughter, Fountain made some suggestions to improve their skills, which caused friction between the couple and Fountain. After several weeks of silence, Fountain called them. She learned that the husband had lost his job, the wife had given birth to a boy, and Hajek and the couple's daughter were fighting. The husband asked Fountain to come to their house after the holidays. Fountain was certain they were going to ask that Hajek be removed from their house.

Fountain visited the couple and found them under enormous stress. The wife was worried that she might hurt Hajek. Hajek was removed from the couple's home and immediately placed in the home of the Hajeks. Fountain testified that under new practices no adoption agency would ever move a child directly from a failed adoption setting into a new adoptive home out of

Page 1169

fear that the child would come to blame the second set of parents for removing him or her from the first set of parents. Fountain believed Hajek was emotionally abused during his stay with the couple.

Dr. Minagawa, who had testified at the guilt phase, testified again at the penalty phase. Minagawa testified that Hajek's removal from the foster parents who had wanted to adopt him was the most traumatizing event of his first two years of life [171 Cal.Rptr.3d 270] and that the later failed adoptive placement impaired Hajek's ability to develop the trust in other human beings necessary for a sense of stability and security in the world. Minagawa testified that the effects of this trauma did not go away but went " underground," only to emerge during adolescence and in early adulthood. He testified that, at 18, Hajek was still an adolescent in terms of his judgment, maturation, and impulsivity. In the guilt phase, Minagawa described Hajek's mood disorder as cyclothymia, which is similar to, but not the same as bipolar disorder. In the penalty phase, Minagawa amended the [324 P.3d 119] diagnosis to bipolar disorder, which is genetically based and treatable with medication and counseling. Minagawa opined that on the date of the murder, Hajek was under the influence of a bipolar or cyclothymic disorder that impaired his judgment. Additionally, Minagawa testified Hajek was suffering from the personality disorder he had described in his guilt phase testimony.

3. Defendant Vo's Evidence

Vo called 29 witnesses. They fell into four categories: family and friends; teachers; members of the National Guard; and correctional officers. His witnesses also included an expert on Vietnamese immigration into the United States and a correctional expert.

Vo's father, Tan Van Viet, testified he had eight children, four born in Vietnam and four in the United States. Tan Van Viet worked for the United States government in Vietnam, and the family was well off. When Saigon fell to the Communist regime in the north in 1975, the family had only 30 minutes to leave. First they went to Guam, then to an Army base in Arkansas, then to Tennessee, then to Kentucky, and ultimately to California, where the family settled in San Jose. After failed attempts to obtain a college degree and to become a farmer, Tan Van Viet found employment as a school crossing guard. Tan Van Viet claimed his family was happy, and he had never needed to discipline his children.

Vo's mother, Keen Vo, testified briefly that Vo was a good son and that she did not want him to receive the death penalty.

Vo's brothers, Dexster and Sparkman Vo, gave accounts of their family life that differed significantly from their father's. Dexster described the family's

Page 1170

departure from Vietnam as " chaotic." In Guam and then in Arkansas, they lived in a military barracks. Their living conditions after Arkansas were not much better, and their San Jose residence was " a shack." Dexster described his father as very strict and said there was a culture clash between his father's traditional Vietnamese ways and his children's American ways. His father used a belt to discipline him. His parents fought, and their fights escalated from verbal to physical violence. These fights frightened him and his siblings, and Vo would shut down and hide his feelings. Dexster joined the military in part to get away from his family.

Dexster testified that during one fight, his mother pulled a knife, and his father and the children ran into a room and locked the door. His father told Dexster to climb out the window and go for help, as his mother pounded on the door. The police arrived. His mother tried to commit suicide and was hospitalized. Sparkman Vo, Vo's youngest brother, confirmed Dexster's testimony about their father's disciplinary methods and the violent arguments between their parents.

Kieu Ngan Vo testified that Vo was a good brother who, even in custody, remained part of the family, and that the family would be devastated if Vo received the death penalty.

[171 Cal.Rptr.3d 271] A number of Vo's friends testified to his good character and his difficult home life. Billy McDonald, who met Vo when they were both freshmen in high school, testified that Vo helped McDonald through a suicidal period. Four other school friends also testified Vo was a loyal and dependable friend, as well as personable and honest. They were also aware Vo had problems at home and would stay late at school to avoid having to go home.

Four of Vo's high school teachers testified on his behalf. Patricia Accoritini, his photography teacher, testified Vo was an eager and conscientious student. Vo would spend his lunch period in Accoritini's classroom and would also " hang out" there after school. Vo told her that his father abused his mother and that Vo once had to leave home for a while after attempting to protect his mother. Vo bought candy bars from Accoritini because he wasn't being fed at home. Vo was calm and nonviolent and had friends among the different racial and ethnic groups at the high school. Accoritini would have felt comfortable having Vo in her own home and considered having him live with her family because of his problems at home. Paul Enders and Rudolf Franke, who supervised Vo when he was a staff photographer on the yearbook, confirmed that he worked hard, was helpful beyond what was required of [324 P.3d 120] him, and got along with others. Franke formed the impression that Vo's father was strict.

Page 1171

Francis Nieman was a German teacher who taught Vo for three years. Vo was an average student, but he worked hard. He was a very active participant in the German club, and he mixed well with everyone and was liked and respected by the other students. Nieman never saw any type of violence from Vo. He was under the impression that Vo's parents were strict and traditional.

Nora Mazotti was Vo's high school counselor. Vo told her on more than one occasion that his father was abusive. At one point she wrote up a report of suspected child abuse when Vo told her his father punched him and threatened to throw a chair at him.

Members of the National Guard testified on Vo's behalf about his record in the National Guard. Two of his commanding officers, David Whittum and Scott Sutherland, testified he had been a satisfactory Guard member. A fellow member of the Guard, Dwayne Talbot, testified Vo was a good soldier.

Nine correctional officers attested that Vo was a model inmate. Frances Paragon-Arias, an art instructor at the Santa Clara County jail, testified Vo was an enthusiastic and motivated student who was helpful, positive, and respectful. Gregory Dalcher, a volunteer tutor at the jail, testified Vo was a dedicated student and a positive and stable person.

Professor Hien Duc Do testified as an expert on the Vietnamese immigrant experience in the United States. Do explained that Vo's family belonged to the first wave of Vietnamese immigrants to the United States who left Vietnam in 1975 after the Communist victory. People like Vo's father who had worked for the United States government were forced to leave because they feared persecution. They had been educated and were middle or upper middle class in Vietnam, but in the United States they experienced a loss in status. The men were forced to take menial jobs, and their wives, who had not worked in Vietnam, went to work to help support their families. The women became semi-independent, and this change created marital tensions that could lead to domestic violence because the men expected women to keep to their traditional roles. The children of these families were caught in a [171 Cal.Rptr.3d 272] cultural vise between American individualist and Vietnamese traditional cultures. Moreover, because the children acculturated while their parents did not, there was a role reversal in which the children were in a role of authority. Do opined that the stresses, tensions, and incidents of violence within Vo's family as described in the testimony of Vo and his family members were consistent with the experiences of the first wave of immigrants.

James Park, a clinical psychologist, testified as an expert in prisoners' classifications and their adjustment to prison life. Based on his review of Vo's record, Park opined that Vo would be a productive and nonviolent prisoner.

Page 1172

II. Discussion

A. Pretrial Issues

1. Severance Motions

Before the start of trial, Vo filed an omnibus motion in limine, which included a motion to sever. Vo argued severance was required on two grounds. First, he argued Hajek had made statements to various individuals incriminating Vo that would be inadmissible at their joint trial under the Aranda/Bruton rule. ( People v. Aranda (1965) 63 Cal.2d 518 [47 Cal.Rptr. 353, 407 P.2d 265]; Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476, 88 S.Ct. 1620] [a nontestifying codefendant's extrajudicial statement that incriminates the other defendant is inadmissible as a violation of the latter's rights to confrontation and cross-examination].) [4] Second, Vo claimed severance was required because he and Hajek were advancing antagonistic defenses. Hajek's counsel orally joined in the motion to sever. The prosecution opposed both motions, and the trial court denied [324 P.3d 121] them. The court also denied Vo's oral motion for severance during the penalty phase.

Defendants contend the trial court abused its discretion when it denied their respective severance motions. Alternatively, they argue that, even if pretrial denial of severance was not an abuse of discretion, retrospectively it amounted to a due process violation. For the reasons below, we find no merit to any of these contentions.

" ' Our Legislature has expressed a preference for joint trials. [Citation.] Section 1098 provides in pertinent part: " When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials." The court may, in its discretion, order separate trials if, among other reasons, there is an incriminating confession by one defendant that implicates a codefendant, or if the defendants will present conflicting defenses. ... [¶ ] We review a trial court's denial of a severance motion for abuse of discretion based on the facts as they appeared when the court ruled on the motion. [Citation.] If we conclude the trial court abused its discretion, reversal is required only if it is reasonably probable that the defendant would have obtained a more favorable result at a separate trial. [Citations.] If the court's joinder ruling was proper when it was made, however, we may reverse a judgment only on a showing that joinder " 'resulted in " gross unfairness" amounting to a denial of due

Page 1173

process.' " [Citation.]' [Citation.] Severance motions in capital cases generally receive heightened scrutiny for potential prejudice. [171 Cal.Rptr.3d 273] [Citation.]" ( People v. Homick (2012) 55 Cal.4th 816, 848 [150 Cal.Rptr.3d 1, 289 P.3d 791].)

Defendants were charged with having committed common crimes that involved the same individuals and the same series of events. The joinder of their cases was proper. ( People v. Letner and Tobin (2010) 50 Cal.4th 99, 150 [112 Cal.Rptr.3d 746, 235 P.3d 62] ( Letner and Tobin ).)

Although Vo advanced two grounds for severance in his pretrial severance motion, on appeal he argues only that severance was required because the " irreconcilable defenses of the co-defendants here resulted in a trial lacking due process of law." [5]

" Severance is not required simply because one defendant in a joint trial points the finger of blame at another. ' " 'Rather, to obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.' " [Citation.] When, however, there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance.' [Citation.]" ( People v. Homick, supra, 55 Cal.4th at p. 850; see Letner and Tobin, supra, 50 Cal.4th at p. 150.)

Here there was sufficient independent evidence of both defendants' guilt apart from any potential conflict in the defenses. The evidence showed that both defendants had a motive to commit the charged crimes. Hajek told Tevya Moriarty he was going to kill Ellen and her family in retaliation for his altercation with Ellen. Vo learned about the altercation on the same day it occurred, when he was present with Hajek and Lori Nguyen that night and Hajek and Ellen were exchanging hostile phone calls. Vo had unrequited romantic feelings toward Nguyen and was Hajek's friend. Vo later told Cary he was looking for Ellen because she had had an argument with his relative at school and said he wanted to teach her a lesson. The evidence showed further that defendants together arrived at the Wang residence, prepared [324 P.3d 122] to commit a violent act. They drove a stolen van and parked it around the corner. Wearing

Page 1174

gloves and armed with a pellet gun, they gained entrance into the residence on a pretext. Once inside, Hajek pointed the gun at Alice to force her compliance. At another point, Vo held a knife to Cary's throat and threatened to kill her and her family if she called out. Working in concert, Hajek and Vo held members of the Wang family hostage for several hours, during which they repeatedly threatened the victims' lives and murdered Su Hung.

As described by the Wangs, both defendants took an active part in these events, which included binding and blindfolding the victim and isolating her in an upstairs room that each visited repeatedly. When the police arrived at the scene, Hajek attempted [171 Cal.Rptr.3d 274] to flee, and Vo, upon being arrested, lied about his identity.

Because sufficient independent evidence existed against both defendants, the trial court's rejection of the severance motions was not an abuse of discretion.

In any case, their defenses were not truly conflicting. Vo argues that Hajek's defense was that Vo was the actual perpetrator, creating an irreconcilable conflict because the jury could not have accepted Hajek's defense without convicting Vo. This mischaracterizes Hajek's defense. Hajek's defense was that his mental illness reduced his culpability, not that he was not culpable. While Hajek's attorney may have suggested in closing argument that Hajek was not the actual killer, she explained that " the heart of [Hajek's] defense" was that he was in a manic state at the time of the offenses due to his mental illness, and therefore did not premeditate or deliberate. Indeed, Vo's trial counsel sought to capitalize on Hajek's mental illness defense by presenting evidence of episodes where Hajek lost control of himself and acted impulsively or violently. Vo's defense was that Hajek killed Su Hung in a manic state without Vo's knowledge or assistance and that Vo had accompanied Hajek to the Wang residence merely to confront Ellen, not to commit murder.

A jury need not have believed Vo was guilty to accept Hajek's mental illness defense. Vo's defense, if believed, did not require the jury to convict Hajek. " [T]his was not a case in which only one defendant could be guilty. The prosecution did not charge both and leave it to the defendants to convince the jury that the other was that person." ( People v. Cummings (1993) 4 Cal.4th 1233, 1287 [18 Cal.Rptr.2d 796, 850 P.2d 1].) Again, no abuse of discretion has been shown.

Vo next contends that the denial of his pretrial severance motion--viewed retrospectively--resulted in gross unfairness sufficient to constitute a denial of due process. (See People v. Homick, supra, 55 Cal.4th at p. 852; People v. Hoyos

Page 1175

(2007) 41 Cal.4th 872, 896 [63 Cal.Rptr.3d 1, 162 P.3d 528].) He argues that much of the evidence adduced at his joint trial with Hajek was prejudicial to Vo and would have been excluded as irrelevant had he been tried alone. [6] But the evidence Vo cites--Hajek's altercation with Ellen and his telephone conversation with Moriarty, defendants' jailhouse conversation, and defendants' close friendship with each other and Nguyen--would likely have been admitted at a separate trial for Vo to provide context and motive for his actions at the Wang residence.

Vo further contends that Hajek's mental illness evidence prejudiced Vo because the jury must have anticipated that Vo, too, would have presented such a defense. The claim is speculative, unsupported by the record or any relevant authority. Equally unpersuasive is Vo's claim that the prosecutor at one point used Hajek's mental illness defense to suggest Vo was the more culpable actor because he was not mentally ill. As the record reflects, Hajek's attorney had argued that the plan to kill Ellen's family in retaliation for a minor altercation was so bizarre it could not have been planned but was the product of Hajek's mental illness. [324 P.3d 123] In response, the prosecutor argued that enlisting Vo as a cohort was evidence that Hajek [171 Cal.Rptr.3d 275] was not mentally ill when he planned and carried out the crime. Thus, the prosecutor's argument merely refuted Hajek's mental illness defense and did not suggest Vo was more culpable because he was not mentally ill.

Vo next contends that evidence of Hajek's prior criminal conduct and " bad character" --e.g., his interest in Satanism, his delusions about being Asian, and his sadism--tainted Vo by association.

Severance may be justified " where there may be prejudicial association with codefendants" ( People v. Boyde (1988) 46 Cal.3d 212, 232 [250 Cal.Rptr. 83, 758 P.2d 25]), but only if, at the guilt phase, " the evidence regarding one defendant might make it likely the jury would convict that defendant of the charges and, further, more likely find a codefendant guilty based upon the relationship between the two rather than upon the evidence separately implicating the codefendant" ( Letner and Tobin, supra, 50 Cal.4th at p. 152). Those circumstances are not present here. As recounted above, ample independent evidence implicated Vo in the crimes of which he was convicted. In these circumstances, there is no likelihood the jury convicted Vo solely because of his association with Hajek. Moreover, the evidence regarding Hajek's prior criminal conduct and various obsessions was clearly admitted against Hajek alone, and we have no reason to doubt that the jury followed

Page 1176

the instructions to consider separately each defendant's guilt. Finally, evidence that tended to depict Hajek as an out-of-control deviant aided Vo's defense that Hajek killed the victim in the midst of a manic episode. Indeed, Vo himself introduced some of this evidence.

In sum, denial of Vo's pretrial severance motion did not amount to a due process violation.

Vo also challenges the denial of his penalty phase severance motion. On direct examination during the penalty phase, Hajek's expert, Dr. Minagawa, testified that at the time of Su Hung's murder, Hajek was mentally ill and in the midst of a manic episode. On cross-examination, the prosecutor repeatedly sought to impeach Minagawa by suggesting he had avoided asking Hajek questions that would have undermined this diagnosis. In this vein, the prosecutor asked Minagawa whether he had pressed Hajek about the circumstances of the murder. To four of these questions, Minagawa replied that Hajek had denied killing the victim. Vo's counsel objected on hearsay grounds. The trial court responded with a limiting instruction: " The testimony is strictly limited to Mr. Hajek and it is not being received as to Mr. Vo. ... So when you receive the testimony as to Mr. Hajek, it is received only as to Mr. Hajek. And when you receive testimony as to Mr. Vo, it is received only as to Mr. Vo. [¶ ] Objection is overruled."

In a hearing outside the presence of the jury, Vo's counsel moved for a mistrial or, alternatively, severance. He argued that by relating Hajek's denial that he killed the victim, Dr. Minagawa's testimony violated the Aranda/Bruton rule. Counsel asserted the trial court's admonition was inadequate to cure the violation. On appeal, Vo challenges the denial of these motions.

The Aranda/Bruton rule addresses a specific issue that arises at joint trials when the prosecution seeks to admit the out-of-court statement of a nontestifying defendant that incriminates a codefendant. " ' Aranda and Bruton stand for the proposition that a " nontestifying codefendant's extrajudicial self-incriminating statement that inculpates the other defendant is generally [171 Cal.Rptr.3d 276] unreliable and hence inadmissible as violative of that defendant's right of confrontation and cross-examination, even if a limiting instruction is given." [Citation].' [Citation.] The United States Supreme Court 'limited the scope of the Bruton rule in Richardson v. Marsh (1987) 481 U.S. 200 [95 L.Ed.2d 176, 107 S.Ct. 1702] ... . The court explained that Bruton recognized a narrow exception to the general rule that juries are presumed to follow limiting instructions, and this narrow exception should not apply to confessions that are not incriminating on their face, but become so only when linked with other evidence introduced at trial. ( Richardson, supra, at pp. 206-207.) [324 P.3d 124] That

Page 1177

is because, " [w]here the necessity of such linkage is involved, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence." ( Id. at p. 208.)' " ( People v. Homick, supra, 55 Cal.4th at p. 874, fn. omitted; see People v. Fletcher, supra, 13 Cal.4th at pp. 463-464.)

Hajek's statement to Dr. Minagawa that he did not kill Su Hung did not facially incriminate Vo. Its incriminatory effect depended entirely on its linkage to other evidence. Moreover, the point of the prosecutor's cross-examination was to suggest that Hajek's denial of culpability was a lie that Minagawa accepted at face value because it was consistent with his diagnosis. Thus, the issue was not the identity of Su Hung's killer, but Minagawa's credibility as an expert. Under these circumstances, the trial court's limiting instruction properly guided the jury's consideration of the testimony. ( Richardson v. Marsh, supra, 481 U.S. at p. 206 [" Ordinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness 'against' a defendant if the jury is instructed to consider that testimony only against a codefendant." ].)

We turn to Hajek's severance claim. Hajek's counsel orally joined Vo's pretrial motion for severance on the ground of antagonistic defenses. As noted, sufficient independent evidence existed of both defendants' guilt so as to render the denial of their severance motion an appropriate exercise of discretion at the time the court ruled. Moreover, although Hajek complains that Vo was permitted to call two witnesses who testified to two episodes of Hajek's violent behavior involving an attack on a coworker and the destruction of jail property, Hajek concedes that he himself referred to these incidents as part of his mental illness defense. Under these circumstances, Hajek fails to demonstrate that the denial of his severance motion resulted in gross unfairness amounting to a due process violation.

Hajek also contends the trial court erroneously denied his penalty phase severance motion. The motion to which he refers was for a mistrial, not severance. The claim is forfeited. ( People v. Tafoya (2007) 42 Cal.4th 147, 163 [64 Cal.Rptr.3d 163, 164 P.3d 590]; People v. Ervin (2000) 22 Cal.4th 48, 68 [91 Cal.Rptr.2d 623, 990 P.2d 506].) [7] Even if the claim were not forfeited, it is meritless. Hajek argues he was prejudiced by Vo's extensive " good character" defense, because Hajek's inability to mount a comparable defense cast him in a bad light before the jury. As [171 Cal.Rptr.3d 277] already noted, the jury was

Page 1178

specifically admonished " not to weigh one defendant against the other or choose between them," and to make " an individualized determination based on the character and circumstances of each individual and the circumstances of the case." We presume the jury understood and followed these instructions. ( People v. Avila (2006) 38 Cal.4th 491, 575 [43 Cal.Rptr.3d 1, 133 P.3d 1076].)

2. Keenan Counsel

Vo contends his right to effective assistance of counsel was violated by the initial denials of his request for a second or Keenan counsel ( Keenan v. Superior Court (1982) 31 Cal.3d 424 [180 Cal.Rptr. 489, 640 P.2d 108]) and by a later denial of his request to continue the trial when Keenan counsel withdrew for health reasons. We reject his claims. [8]

a. Background

In September and October 1991, Vo's trial counsel, James Blackman, filed declarations seeking appointment of a second attorney to defend Vo. Blackman asserted the second [324 P.3d 125] counsel was required for research and related work on various motions, including motions for discovery, severance, a section 995 motion to dismiss, a motion to preclude the death penalty based on the charging policies of the Santa Clara County District Attorney, and motions related to the admissibility of particular pieces of evidence. The requests were summarily denied.

Blackman sought a hearing, which was conducted on November 20, 1991, by Judge Hastings. To justify his Keenan counsel request, Blackman repeatedly cited the complexity of the case and of the various motions and investigations he planned to undertake in Vo's defense. He additionally cited the fact that a number of his witnesses spoke only Vietnamese.

The trial judge noted his own experience as a criminal defense lawyer, which included 13 years in practice and certification as a criminal law specialist, and his judicial experience presiding over hundreds of jury trials, including five death penalty cases. The judge pointed out that in Keenan " there was a very critical time issue involved for the lawyer to get prepared after his appointment," whereas in Vo's case " the matter isn't even set for trial." The judge characterized Blackman's statement that the case was complicated as " conclusionary" and again denied the motion.

Page 1179

In March 1994, Blackman made a third request for Keenan counsel before a different trial judge, and this time the request was granted. Attorney Mary Ann Bachers was appointed second counsel and began work on the case in May 1994. Neither the declarations submitted in connection with the third Keenan request nor the transcript of any hearing is in the record.

Trial was set for January 17, 1995. On December 16, 1994, Blackman presented the court with a doctor's note stating Bachers was completely disabled and unable to continue to represent Vo. He asked for a continuance of the trial date. Both the prosecutor and Hajek's counsel objected. On January 6, 1995, Blackman reported he had not yet found a replacement for Bachers. On January 17, the court held a hearing on the continuance request. Blackman characterized the case as " complicated," and recounted his initial unsuccessful [171 Cal.Rptr.3d 278] attempts to obtain Keenan counsel as well as the time he spent litigating the section 995 motion and subsequent appeal. [9] Blackman acknowledged that, while the case was on appeal following the granting of Vo's section 995 motion, " [w]e just didn't do anything because the focus of the attention at that point was to see what happened in the Court of Appeal." Blackman said his request for Keenan counsel had been granted following the Court of Appeal's reinstatement of the special circumstances. He insisted he could not go to trial because Bachers had been in charge of penalty phase preparations and, as a result of her withdrawal from the case, the penalty phase case was not ready. He told the court he had been unsuccessful in his efforts to find a replacement for Bachers.

The trial court denied the continuance request. The court said it had read the transcript of the November 21, 1991, Keenan hearing before Judge Hastings and observed, " [a]ll the arguments you're putting forth here were the same arguments you put forth at that time ... . I don't think this case will ever be prepared ... . [A]ll the information you need for a competent guilt phase and penalty phase investigation is at your fingertips."

On February 10, 1995, Attorney Jeane Dekelver was appointed as replacement Keenan counsel. Trial began on February 14, 1995. As stated in the factual summary above, Vo called 29 penalty phase witnesses, including family members, friends, and experts on the Vietnamese immigrant experience and on prisoner classifications and prisoner adjustment.

Page 1180

b. Discussion

We begin with the initial denial of Vo's request for Keenan counsel. In capital [324 P.3d 126] cases, " courts have the statutory discretion to appoint a second defense attorney at public expense. [Citations.] But unlike the constitutional right [to counsel], the statutory right to appointed second counsel is qualified." ( People v. Roldan (2005) 35 Cal.4th 646, 686 [27 Cal.Rptr.3d 360, 110 P.3d 289], fn. omitted; § 987, subd. (d).) " In ruling on an application for second counsel, the trial court must be guided by the need to provide a capital defendant with a full and complete defense. [Citation.] ... The initial burden is on the defendant to present a specific factual showing of 'genuine need' for the appointment of second counsel. [Citation.] We review the decision whether to grant a request to appoint second counsel under section 987 for abuse of discretion. [Citation.]" ( People v. Doolin (2009) 45 Cal.4th 390, 432 [87 Cal.Rptr.3d 209, 198 P.3d 11].) " The abuse of discretion standard is used in many other contexts and reflects the trial court's superior ability to consider and weigh the myriad factors that are relevant to the decision at hand. A trial court will not be found to have abused its discretion unless it 'exercised its discretion in an arbitrary, capricious, or patently absurd manner that results in a manifest miscarriage of justice.' [Citation.]" ( People v. Roldan, supra, 35 Cal.4th at p. 688.)

We find no abuse of discretion in the denial of Vo's initial requests for Keenan counsel. To the extent Vo's counsel [171 Cal.Rptr.3d 279] sought to justify such an appointment because the case was complex, the trial court correctly dismissed such justification as conclusory and therefore insufficient. (See People v. Verdugo (2010) 50 Cal.4th 263, 278-279 [113 Cal.Rptr.3d 803, 236 P.3d 1035] [no abuse of discretion where request for appointment of second counsel is denied, where the request asserts only that the case is " 'complex' " ].) Nor do we find the trial court abused its discretion merely because Vo's counsel referred to specific motions and investigations as grounds for his request. Indeed, as the court noted, the matter had not yet even been set for trial. Keenan 's genuine need standard requires the defendant to show specific and compelling reasons for appointment of second counsel. ( Keenan v. Superior Court, supra, 31 Cal.3d at p. 429.) The trial court gave clear and detailed reasons why it did not find the justifications offered by Vo's counsel to be compelling. We cannot say the court's findings constituted an abuse of discretion.

Nor are we swayed by the fact that a second judge was later persuaded to appoint Keenan counsel. Neither the declarations submitted in connection with that request nor a transcript of the hearing, if any, are in the record. Accordingly, we do not know whether new or different arguments were made or what other factors may have informed the second judge's exercise of

Page 1181

discretion. The subsequent appointment of second counsel does, however, obviate any possibility of prejudice even were we to assume the first judge abused his discretion, which we do not.

The same abuse of discretion standard governs the trial court's ruling on Vo's request for a continuance after his Keenan counsel withdrew for medical reasons. " A continuance in a criminal trial may only be granted for good cause. [Citation.] 'The trial court's denial of a motion for continuance is reviewed for abuse of discretion.' [Citation.] 'There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.' [Citations.]" ( People v. Mungia (2008) 44 Cal.4th 1101, 1118 [81 Cal.Rptr.3d 614, 189 P.3d 880] ( Mungia ).) " The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked. [Citation.] [¶ ] Under this state law standard, discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered. [Citations.]" ( People v. Beames (2007) 40 Cal.4th 907, 920 [55 Cal.Rptr.3d 865, 153 P.3d 955].)

Here, as the trial court noted, the January 17, 1995, hearing on the motion was also the fourth anniversary of the crime. Vo's counsel acknowledged that work had essentially stopped on the case for over one [324 P.3d 127] year while the Court of Appeal reviewed the granting of the section 995 motion, which had resulted in the striking of all but one of the special circumstances. As the trial court pointed out, however, the section 995 motion had not been granted as to the torture-murder special circumstance, and so the case had remained a capital case. Regarding the main reason for the continuance request--the withdrawal of Keenan counsel for health reasons--the court pointed out that over a month had passed, and Vo's counsel had not secured a replacement. The court also observed the penalty phase investigation that Vo's counsel claimed had not been completed involved issues such as Vo's Vietnamese immigrant experience, of [171 Cal.Rptr.3d 280] which counsel had been aware as early as 1991, when he first requested Keenan counsel. Moreover, the court questioned why Attorney Bachers, rather than the defense investigator, was interviewing penalty phase witnesses, " because the person you want talking to those people is somebody you're going to put on the stand to talk in the case, and you're not going to put Keenan counsel on the stand." In sum, the trial court concluded that the defense was sufficiently prepared to proceed with both the guilt and penalty phases and that the withdrawal of second counsel did not necessitate a continuance.

We find no abuse of discretion. Even if counsel could have chosen to allocate his time differently, he was not denied a reasonable opportunity to

Page 1182

prepare a defense. ( People v. Doolin, supra, 45 Cal.4th at p. 450.) Thus, the trial court was justified in rejecting counsel's request for more time to prepare his penalty phase case in light of Keenan counsel's withdrawal. Moreover, a replacement counsel was appointed, and an extensive penalty phase case was in fact presented. Thus, Vo fails to demonstrate prejudice in any event. [10]

B. Guilt Phase Issues

1. Sufficiency of the Evidence Claims

Defendants claim the evidence is insufficient to support the lying-in-wait special-circumstance findings, the torture-murder special-circumstance findings, the attempted murder convictions, the firearm enhancements as to Hajek, and the knife use enhancements as to Vo. Based on the alleged insufficiency of the evidence at the close of the prosecution's guilt phase case-in-chief, defendants additionally contend the trial court should have granted their section 1118.1 motions for dismissal of the lying-in-wait special circumstances and for acquittal on counts 2 through 5 of the information regarding the attempted murders of Cary, Alice, Tony, and Ellen, and on the knife use enhancements. [11]

In determining whether the evidence was sufficient either to sustain a conviction or to support the denial of a section 1118.1 motion, the standard of review [171 Cal.Rptr.3d 281] is essentially the same. ( People v. Houston [324 P.3d 128] (2012) 54 Cal.4th 1186, 1215 [144 Cal.Rptr.3d 716, 281 P.3d 799] ( Houston ).) " '[W]e do not determine the facts ourselves. Rather, we " examine the whole record in the

Page 1183

light most favorable to the judgment to determine whether it discloses substantial evidence--evidence that is reasonable, credible and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶ ] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] " [I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.] We do not reweigh evidence or reevaluate a witness's credibility.' " ( Ibid .; see People v. Watkins (2012) 55 Cal.4th 999, 1019-1020 [150 Cal.Rptr.3d 299, 290 P.3d 364].) Notably, however, " [r]eview of the denial of a section 1118.1 motion made at the close of a prosecutor's case-in-chief focuses on the state of the evidence as it stood at that point." ( Houston, at p. 1215; see Watkins, at p. 1019.)

a. Lying-in-wait murder and lying-in-wait special circumstance

Defendants argue the trial court abused its discretion in denying their motions to dismiss the lying-in-wait special-circumstance allegations at the close of the prosecution's case-in-chief. (§ 1118.1.) They also contend the evidence was insufficient to support their convictions of first degree murder on a lying-in-wait theory and the true findings on the lying-in-wait special-circumstance allegations. (§ § 189, 190.2, former subd. (a)(15), as added by Prop. 7, enacted by voters Nov. 7, 1978.) For the reasons below, we agree the lying-in-wait special-circumstance findings must be reversed, but conclude that reversal of these findings does not require reversal of defendants' death sentences.

At the time of Su Hung's murder, " the elements of the lying-in-wait special circumstance required an intentional killing, committed under circumstances that included a physical concealment or concealment of purpose; a substantial period of watching and waiting for an opportune time to act; and, immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage. [Citations.] ... [The period of waiting and watching] 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.] ' " '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.] 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.' [Citation.]" ( People v. Stevens

Page 1184

(2007) 41 Cal.4th 182');"> 41 Cal.4th 182, 201-202 [59 Cal.Rptr.3d 196, 158 P.3d 763], fns. omitted; see People v. Morales (1989) 48 Cal.3d 527, 557 [257 Cal.Rptr. 64, 770 P.2d 244].) " [T]he lying-in-wait special circumstance requires 'that the killing take place during the period of concealment and watchful waiting ... .' [Citation.]" ( People v. Gutierrez (2002) 28 Cal.4th 1083, 1149 [124 Cal.Rptr.2d 373, 52 P.3d 572].) " 'During' means 'at some point in the course of.' " [171 Cal.Rptr.3d 282] ( People v. Lewis (2008) 43 Cal.4th 415, 514 [75 Cal.Rptr.3d 588, 181 P.3d 947] ( Lewis ).)

Moreover, when the capital crime occurred, the lying-in-wait special circumstance required a showing that the defendant " intentionally killed the victim while lying in wait." (§ 190.2, former subd. (a)(15), italics added.) In 2000, the electorate approved Proposition 18 which, among other things, " changed the language of the lying-in-wait special circumstance to delete the word 'while' and substitute in its place 'by means of.' " ( Lewis, supra, 43 Cal.4th at p. 512, fn. 25.) Because Su Hung's murder occurred before this statutory change, we apply the case law interpreting the more stringent requirement of [324 P.3d 129] the former law. (See id. at p. 511.)

At trial, the evidence showed that Su Hung was killed while defendants were waiting for her granddaughter, Ellen, to return home. The trial court, using a " transferred intent" analogy, concluded that even though Ellen was the target, " the murder did occur during the process of lying in wait, so that special [circumstance] will not be dismissed." [12] The Attorney General disavows the trial court's rationale and argues on appeal that Su Hung herself was the target of defendants' lying in wait. [13] Defendants counter the evidence was insufficient to establish that Su Hung's murder occurred while they were lying in wait for her.

In evaluating defendants' contentions, we find Lewis, supra, 43 Cal.4th 415, instructive. There, the defendant and his accomplices had " accomplished the forcible kidnapping of [several victims] while lying in wait, but then drove the still living victims around in their cars for periods of one to three hours, while withdrawing money from the victims' bank accounts, before killing them. By the time of the killings, the concealment, the watchful waiting, and the surprise attack all had taken place at least one and up to three hours earlier." ( Id. at p. 514.) In assessing the sufficiency of the

Page 1185

evidence, Lewis took note of the prosecutor's argument that the defendant had concealed his purpose to kill from each of the victims until the moment they were killed, in some cases assuring the victims they would not be harmed. Nonetheless, Lewis concluded that " 'mere' concealment of purpose is not enough to support the lying-in-wait special circumstance. [Citation.] Rather, such concealment must be contemporaneous with a substantial period of watching and waiting for an opportune time to act, and followed by a surprise attack on an unsuspecting victim from a position of advantage. [Citation.]" ( Ibid .) As Lewis emphasized, " there was no evidence that, while concealing his purpose to kill, defendant watched and waited for an opportune time to kill the victims. Rather, the evidence suggests each was killed when, and only when, his or her ATM withdrawal limit had been reached and the victim had been driven to a suitable location for killing. Moreover, there was no evidence that the victims were surprised. Indeed, the evidence suggests each victim must have been aware of being in grave [171 Cal.Rptr.3d 283] danger long before getting killed." ( Id. at pp. 514-515.)

The evidence here is comparable to that in Lewis and calls for a similar result. Defendants entered the Wang residence by ruse, displayed a gun, and shortly thereafter bound and blindfolded the frightened victim and isolated her in an upstairs bedroom for several hours before finally killing her. From the moment defendants took Su Hung and Alice hostage, Su Hung could not have perceived their actions as anything other than a serious threat to her safety, even if they untied her for a period of time while she was kept isolated in the bedroom. Thus, even assuming defendants engaged in a period of watchful waiting before entering the house using the element of surprise, it was followed by " a series of nonlethal events" over the course of several hours, " and then a cold, calculated, inevitable, and unsurprising dispatch" of the victim. ( Lewis, supra, 43 Cal.4th at p. 515.) Moreover, even assuming defendants never revealed their true purpose to kill the entire Wang family, there was no evidence that, while concealing that purpose, defendants watched and waited for an opportune time to kill Su Hung. Thus, even when the evidence is considered in a light most favorable to the judgment, it simply fails to establish that defendants' concealment was contemporaneous with a substantial period of watching and waiting for an opportune time [324 P.3d 130] to act, or that their concealment allowed them to launch a surprise attack on an unsuspecting victim from a position of advantage. Although the evidence shows Su Hung was killed in a most horrifying manner, it falls short of establishing she was killed while defendants were lying in wait for her.

Accordingly, we conclude the evidence was insufficient to show that defendants " intentionally killed the victim while lying in wait," as required under the former law. (§ 190.2, former subd. (a)(15), italics added; see Lewis, supra,

Page 1186

43 Cal.4th at pp. 514-515.) We now address whether reversal of the lying-in-wait special-circumstance findings requires reversal of defendants' death sentences.

Citing Stringer v. Black (1992) 503 U.S. 222 [117 L.Ed.2d 367, 112 S.Ct. 1130], Hajek (joined by Vo) argues that " the invalidated aggravating factor necessarily added to the aggravating side of the balance and this prejudiced [defendant] when the jury ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.