People v. Khemphomma CA4/1 ( 2023 )

Filed 3/7/23 P. v. Khemphomma CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079149
Plaintiff and Respondent,
v. (Super. Ct. No. INF1700929)
THONGLINH KHEMPHOMMA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Anthony R. Villalobos, Judge. Reversed and remanded with directions.
Ronda G. Norris, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C.
Ragland, Assistant Attorneys General, Robin Urbanski, Paige B. Hazard and
Juliet W. Park, Deputy Attorneys General for Plaintiff and Respondent.
The People charged Thonglinh Khemphomma with second degree
murder (Pen. Code,1 § 187, subd. (a); count 1), gross vehicular manslaughter
1 Undesignated statutory references are to the Penal Code.
(§ 191.5, subd. (a); count 2), driving under the influence of alcohol and
causing death and bodily injury (Veh. Code, § 23153, subd. (a); count 3), and
felony driving with a 0.08 percent or more blood alcohol content causing
injury (Veh. Code, § 23153, subd. (b); count 4). The People alleged as to
counts 3 and 4 that Khemphomma personally inflicted great bodily injury
upon the victim, who was not an accomplice. (§§ 12022.7, subd. (a), 1192.7,
subd. (c)(8).)
Following the People’s case-in-chief, the court granted the prosecutor’s
motion to dismiss the gross vehicular manslaughter count. The jury
convicted Khemphomma on the remaining counts and found all
enhancements true. The court sentenced Khemphomma to 15 years to life in
state prison on count 1, and imposed but stayed the sentence on the other
counts and enhancements under section 654.
Khemphomma contends: (1) insufficient evidence showed he acted with
implied malice to support his second degree murder conviction; (2) the court
prejudicially granted the prosecution’s motion to dismiss the gross vehicular
manslaughter count; and (3) he is entitled to resentencing under Senate Bill
No. 567, and Assembly Bill Nos. 124, and 518; moreover, the abstract of
judgment should be corrected to accurately reflect his convictions. We
conclude the court erroneously dismissed count 2, and therefore reverse the
judgment and remand with directions.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2017, Khemphomma drove under the influence of alcohol from
Arizona to California with his mother, Sim Khemphomma, as his passenger.
He crashed his car into the freeway’s center median, killing his mother. The
parties stipulated her cause of death was multiple blunt impact injuries from
the collision, with no other significant conditions noted.
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A police officer investigating the collision testified “that the vehicle
inappropriately and unsafely turned to the left causing it to leave the
roadway. And then as the driver attempted to regain control of the vehicle,
the vehicle was trying to turn back to the right to get back to the lane of
traffic and lost control and—which led to the vehicle rolling over.” He
believed the vehicle overturned at least twice. He did not see any evidence to
support a mechanical failure as the cause of the accident. Three of the tires
appeared deflated, but apparently they did not deflate before the collision.
Khemphomma failed several field sobriety tests administered while he
was at the hospital following the incident. Approximately two hours after the
crash, a preliminary alcohol screening test showed his blood-alcohol
concentration was 0.226 percent.
Khemphomma had four prior convictions for driving under the
influence, and his license had been revoked twice before. As part of a 2013
case, he was ordered to attend Mothers Against Drunk Driving classes, and
he acknowledged on a plea form that he “drove and operated a motor vehicle
within the state of Minnesota while under the influence of alcohol. I agree
that alcohol significantly causes impairment in my driving ability.”
Defense counsel presented no trial evidence.
DISCUSSION
I. Sufficiency of the Evidence of Second Degree Murder
Khemphomma contends there was insufficient evidence of implied
malice to sustain his second degree murder conviction.
In reviewing the sufficiency of the evidence under the substantial
evidence standard, an appellate court does not “ ‘ “ask itself whether it
believes that the evidence at the trial established guilt beyond a reasonable
doubt.” [Citation.] Instead, the relevant question is whether, after viewing
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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.’ ” (People v. Boatman (2013) 221 Cal.App.4th 1253, 1262,
italics omitted.)
“In determining whether evidence is sufficient to support a verdict, we
examine the entire record, viewing the evidence in the light most favorable to
the judgment and presuming in support of the verdict the existence of every
fact the jury could reasonably deduce from the evidence. The issue is
whether the record so viewed discloses evidence that is reasonable, credible
and of solid value such that a rational trier of fact could find the elements of
the crime beyond a reasonable doubt.” (People v. Llamas (1997) 51
Cal.App.4th 1729, 1736.) “ ‘A reviewing court neither reweighs evidence nor
reevaluates a witness’s credibility.’ ” (People v. Covarrubias (2016) 1 Cal.5th
838, 890.)
Murder is the unlawful killing of a human being . . . with malice
aforethought. (§ 187, subd. (a).) Malice may be express or implied. (§ 188,
subd. (a).) Implied malice has “ ‘both a physical and a mental component.
The physical component is satisfied by the performance of “an act, the
natural consequences of which are dangerous to life.” [Citation.] The mental
component is the requirement that the defendant “knows that his conduct
endangers the life of another and . . . acts with a conscious disregard for
life.” ’ ” (People v. Chun (2009) 45 Cal.4th 1172, 1181; accord, People v.
Watson (1981) 30 Cal.3d 290, 300.) The mental component of implied malice
is subjective, requiring that the defendant actually appreciate the risk of his
or her actions. (People v. Murphy (2022) 80 Cal.App.5th 713, 726; People v.
Superior Court (Costa) (2010) 183 Cal.App.4th 690, 697.)
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People v. Watson is the leading case on vehicular murder on a theory of
implied malice. The defendant there consumed large quantities of beer at a
bar. Afterwards, he drove through a red light and barely avoided a collision
with another car in an intersection. He drove away at high speed and
collided with another vehicle, killing two of its occupants. (People v. Watson,
supra, 30 Cal.3d at p. 293.) The trial court dismissed the murder counts, and
the California Supreme Court reversed the order. (Id. at pp. 294–295.) It
explained there was a rational ground to conclude the defendant’s conduct
constituted second degree murder: he had consumed enough alcohol to be
legally intoxicated; he drove to the bar and must have known he would have
to drive later; it could be presumed he knew of the hazards of driving while
intoxicated; he drove at “highly excessive speeds through city streets, an act
presenting a great risk of harm or death”; he only narrowly avoided a
collision with another vehicle by skidding to a stop, then resumed his
excessive speed; and he tried to brake his car before the fatal collision,
suggesting he knew of the great risk of harm he had created. (Id. at pp. 300-
301.) These facts would “reasonably and readily” support a conclusion the
defendant acted with a conscious disregard for human life. (Id. at p. 301.)
Since People v. Watson, supra, 30 Cal.3d 290, several cases have upheld
convictions for murder based on drunk driving, relying on some or all of these
factors: blood-alcohol level above the legal limit; a pre-drinking intent to
drive; knowledge of the hazards of driving while intoxicated; and highly
dangerous driving. (People v. Murphy, supra, 80 Cal.App.5th at p. 727;
People v. Autry (1995) 37 Cal.App.4th 351, 358.) These factors need not all be
present. (People v. Wolfe (2018) 20 Cal.App.5th 673, 682-683.)
For instance, in People v. Olivas (1985) 172 Cal.App.3d 984, 989,
sufficient evidence showed implied malice, as the defendant had consumed
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enough drugs to impair his faculties, drove at extremely high speeds on city
streets for a relatively lengthy period of time, and continued doing so after
the dangers were shown by one collision, two near misses, and a police chase,
although there was no indication he took the drug knowing he would later
drive.
In People v. McCarnes (1986) 179 Cal.App.3d 525, 533, the defendant
drove at high speeds with a high blood alcohol level, executing two extremely
reckless passing maneuvers and embarking on a third in the face of an
oncoming vehicle. The appellate court said that the evidence, coupled with
four prior convictions for driving under the influence, was “overwhelming[ ],”
and any suggestion it did not support a finding of implied malice was
“nonsense, if not an affront to this court.” (Ibid.)
The evidence here similarly supports a finding Khemphomma was
subjectively aware of the potentially deadly consequences of his driving.
After the collision, his blood alcohol level was near three times the legal limit.
As shown in his police interview, he intended to and did drink alcohol before
and during the drive from Phoenix to California. He was aware of the
dangers of drunk driving from his prior DUI convictions. Finally, the
investigating police officer testified Khemphomma was driving in a
dangerous manner.
Khemphomma states: “Should this court find sufficient evidence of
implied malice, [he] exhausts his remedies in order to request the California
Supreme Court grant review to re-examine its decision in People v. Watson,
supra, 30 Cal.3d 290.” However, he acknowledges that we are bound by that
decision under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.
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II. Dismissal of Gross Vehicular Manslaughter Count
Khemphomma contends: “The court failed to recognize it had
discretion to deny the prosecutor’s last minute request to dismiss Count 2,
gross vehicular manslaughter, thereby abusing its discretion under section
1385.” He specifies that “the dismissal eliminated [his] defense and the jury’s
ability to convict him of a less serious offense but still hold him accountable
for a death. The court’s decision took away [his] ability to present a complete
defense as planned, i.e., that he was guilty of gross vehicular manslaughter
but not murder.” He contends the dismissal deprived him of his federal
constitutional rights to due process, to present a complete defense, and to
have the jury instructed on his defense.
The People concede the trial court erroneously believed it lacked
discretion to deny the prosecutor’s request to dismiss the count.
Nevertheless, they contend any error was harmless because Khemphomma
would not have received a better result if he had been tried on both counts 1
and 2. The People add that count 2’s dismissal did not deprive
Khemphomma of a constitutional right to present a complete defense to the
other charged offenses. They also argue gross vehicular manslaughter is not
a lesser included offense of murder; at most it is a lesser related offense and
therefore Khemphomma had no constitutional right to compel the court to
give a lesser related offense instruction.
A. Background
At the end of the People’s case-in-chief, the prosecutor moved to dismiss
the gross voluntary manslaughter count, without citing any statutory basis,
and without any explanation besides it was “within the People’s province” to
do so. Defense counsel argued in opposition that his strategy revolved
around that count, and it was “prejudicial to the defense to allow the People
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to dismiss this count after all of the cross-examination of the People’s
witness[es] is done, and moments before the defense is about to put on the
case.”
The court stated, “I don’t see how I can prevent the [People] from
[dismissing the count].” It pointed out that the witnesses were subject to
recall. Defense counsel objected: “Even though they are subject to recall,
that doesn’t change all of the questions that I’ve already asked that are
already part of the record that wouldn’t have been the same if count 2 weren’t
around. But now I’m stuck with all of that evidence, and strategically that
leaves me at a severe disadvantage.” Defense counsel added, “I wouldn’t
have delved into certain areas, I would have delved into other areas, etc.”
Defense counsel continued, “This case involves the death of somebody. The
only counts that involve the death of somebody are the life count of murder in
count 1 and the vehicular manslaughter . . . [maximum term of ten years on
count 2].” [¶] . . . And to remove count 2 as an option for the jury, they are
then put in the position despite there being a death, they have to find
[Khemphomma] guilty of murder, or not guilty of everything. And I think
that severely prejudices the defense this late in the game, especially to no
longer have that landing spot of count 2.” Defense counsel also stated that
Khemphomma’s previous counsel had expressed Khemphomma’s willingness
to plead guilty to count 2 and serve more than the maximum term of ten
years in prison.
The court took a recess to conduct research. It stated afterwards: “I
really couldn’t find anything that would prevent me from dismissing [count 2]
at the [People’s request]. They do have the burden.” The court expressed
sympathy for defense counsel’s argument: “[I]nitially when you hear
[defense’s argument], you say, [‘]well it’s to their benefit to have a dismissal[’]
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but then I can see what [defense counsel is saying] about the issues we delve
into and so forth. And then now [defense counsel needs] to prepare [his]
client for testifying tomorrow.”
Defense counsel replied, “Yes, your honor. He was already prepared
with a different game plan in mind. . . . I’d like to have that time not just for
my client to help prepare him, but I was about to give an opening statement.
There’s all sorts of strategy choices that are going to need to be recalculated
now.”
The court continued the trial until the next day. At that time, defense
counsel moved for a mistrial, arguing the court had violated Khemphomma’s
constitutional rights by dismissing the count: “There have been no changes
in the case over the last four years. The defense feels it’s improper to wait
until after the People have rested to suddenly move the goalpost. [¶] There
are a myriad of decisions and questions that relied on the charges in this case
being the same charges that they have been for four years, and certainly
what they were at the start of this trial.” The court denied the motion on the
ground that “the People do have the option to dismiss [counts].”
B. Applicable Law
Section 1385 provides: “The judge or magistrate may, either on motion
of the court or upon the application of the prosecuting attorney, and in
furtherance of justice, order an action to be dismissed. The reasons for the
dismissal shall be stated orally on the record. The court shall also set forth
the reasons in an order entered upon the minutes if requested by either party
or in any case in which the proceedings are not being recorded electronically
or reported by a court reporter.” (§ 1385, subd. (a).)2
2 Since the court’s ruling, section 1385, subdivision (c)(2) was amended to
require the trial court, in exercising its discretion, to “consider and afford
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Under sections 1385 and 1386, courts have the “sole authority . . . to
dismiss actions in furtherance of justice.” (People v. Bonnetta (2009) 46
Cal.4th 143, 148-149; People v. Tenorio (1970) 3 Cal.3d 89, 92-93.) We review
the court’s ruling under section 1385 for abuse of discretion. (People v.
Superior Court (Romero) (1996) 13 Cal.4th 497, 530.) As the California
Supreme Court explained: “ ‘ “[T]he language of [section 1385], ‘in
furtherance of justice,’ requires consideration both of the constitutional rights
of the defendant, and the interests of society represented by the People, in
determining whether there should be a dismissal. [Citations.]” [Citations.]
At the very least, the reason for dismissal must be “that which would
motivate a reasonable judge.” [Citations.]’ [Citation.] ‘Courts have
recognized that society, represented by the People, has a legitimate interest
in “the fair prosecution of crimes properly alleged.” (Romero, at pp. 530-531.)
“But ‘the interests of society represented by the People’ do not begin or end
with the mechanical prosecution of charges properly alleged. ‘The public
prosecutor “ ‘is the representative not of any ordinary party to a controversy,
great weight to evidence offered by the defendant to prove that [certain
specified mitigating circumstances] are present.” The enumerated mitigating
circumstances are: (A) the enhancement would result in a discriminatory
racial impact; (B) multiple enhancements are alleged in a single case; (C) the
application of an enhancement could result in a sentence of over 20 years; (D)
the current offense is connected to mental illness; (E) the current offense is
connected to prior victimization or childhood trauma; (F) the current offense
is not a violent felony; (G) the defendant was a juvenile when they committed
the current offense or any prior offenses that trigger the enhancement or
enhancements applied in the current case; (H) the enhancement is based on a
prior conviction that is over five years old; and (I) though a firearm was used
in the current offense, it was inoperable or unloaded. (§ 1385, subd. (c)(2).)
This provision applies here: “ ‘If the judgment is not yet final because it is on
appeal, the appellate court has a duty to apply the law as it exists when the
appellate court renders its decision.’ ” (People v. Fuentes (2016) 1 Cal.5th
218, 231.)
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but of a sovereignty whose obligation to govern impartially is as compelling
as its obligation to govern at all; and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but that justice shall be done.’ ” ’ ”
(Nazir v. Superior Ct. (2022) 79 Cal.App.5th 478, 493.) “[A] prosecutor’s
motion to dismiss . . . under section 1385 is not ‘a constitutionally protected
exercise of prosecutorial discretion,’ and the trial court may deny such a
motion. . . . [O]nce a district attorney files charges and invokes the court’s
jurisdiction, only the court, not the district attorney, can dismiss an action or
enhancement under section 1385.” (Id. at pp. 499–500.) “A court acting
while unaware of the scope of its discretion is understood to have abused it.”
(People v. Tirado (2022) 12 Cal.5th 688, 694.)
C. Analysis
Khemphomma contends: “The court’s failure to understand it had
discretion to deny the prosecutor’s last minute request, and failure to exercise
any discretion, denied [him] his due process right to a fair trial and to present
a complete defense to the charges against him.” We agree with the People
that gross vehicular manslaughter is not a lesser included offense of murder,
but a lesser related offense. Once the count was dismissed, the court was not
required to instruct regarding gross vehicular manslaughter. (People v.
Sanchez (2001) 24 Cal.4th 983, 988, 991-993, overruled on another ground in
People v. Reed (2006) 38 Cal.4th 1224, 1228-1229; People v. Foster (2010) 50
Cal.4th 1301, 1344 [“ ‘[T]here is no federal constitutional right of a defendant
to compel the giving of lesser-related-offense instructions’ ”])
Even though we find no constitutional violation from the dismissal of
the gross vehicular manslaughter count, we find it difficult to conceive how a
dismissal induced by a prosecutor’s misstatement of the law to the court can
be characterized as being in the interest of justice.
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The People argue that any error was harmless under either the
standard set forth in People v. Watson (1956) 46 Cal.2d 818, mandating
reversal only if it is reasonably probable the jury would have returned a
different verdict absent the errors complained of (People v. Rogers (2006) 39
Cal.4th 826, 867-868 [applying this standard to the erroneous failure to
instruct on a lesser included offense]), or the stricter beyond a reasonable
doubt standard set forth in Chapman v. California (1967) 386 U.S. 18. We
disagree.
We find merit in Khemphomma’s contention that “If the jury had any
doubts, particularly concerning the implied malice element but believed
Khemphomma was responsible for his mother’s death, it could have convicted
him of gross vehicular manslaughter and acquitted him of murder.” Under
the particular facts of this case, “[g]iven the evidence before the jury, there is
‘ “ ‘more than an abstract possibility’ ” ’ [citation] that at least one juror”
(People v. Hendrix (2022) 13 Cal.5th 933, 947) would have found
Khemphomma not guilty of second degree murder. It is likely the prosecutor
shared this concern, or she would not have moved to dismiss the count.
Moreover, in filing the gross vehicular manslaughter count in the first
instance, the People believed that such a possible resolution of the case
should be within the purview of the jury. Presented with counts of both
second degree murder and gross vehicular manslaughter, a reasonable juror
could conclude Khemphomma would not do anything to intentionally harm
his mother and, therefore he lacked the implied malice to commit second
degree murder.
III. Sentencing Issues
Khemphomma contends and the People concede he is entitled to
resentencing under Senate Bill No. 567 and Assembly Bill Nos. 124, and 518.
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In light of our reversal of the count 1 conviction, we need not address this
issue.
The People correctly point out that the abstract of judgment
erroneously states that Khemphomma was convicted of first degree murder.
The court is directed to correct this error to show he was in fact convicted of
second degree murder.
DISPOSITION
The judgment is reversed. The matter is remanded for proceedings
consistent with this opinion.
O’ROURKE, Acting P. J.
WE CONCUR:
IRION, J.
DO, J.
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