People v. Wang ( 2020 )

Filed 3/24/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B294888
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA112295)
v.
CAMINERO WANG,
Defendant and Appellant.
APPEAL from judgment of the Superior Court of Los
Angeles County. Bruce F. Marrs, Judge. Affirmed.
Brad Kaiserman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Scott A. Taryle and Pamela C.
Hamanaka, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________________
Caminero Wang appeals the judgment entered following a
jury trial in which he was convicted of the first degree murders of
his mother-in-law, Shu Zhang, and his father-in-law, Aiping
Diao. (Pen. Code,1 § 187, subd. (a); counts 1 & 2, respectively.)
As to both murders, the jury found true the allegations that
appellant personally and intentionally discharged a firearm
causing death. (§ 12022.53, subds. (b)–(d).) The jury also found
the multiple-murder special circumstance to be true. The trial
court imposed an aggregate sentence of life without the
possibility of parole plus 50 years to life.2
Appellant contends reversal is required due to various
instructional and evidentiary errors, prosecutorial misconduct,
ineffective assistance of counsel, and cumulative error. Appellant
also argues that the trial court erred in failing to consider
whether to impose a lesser firearm enhancement.
We reject all of appellant’s challenges and affirm the
judgment.
FACTUAL BACKGROUND
The Prosecution Case
1. Background
Appellant and Li3 met each other in China through their
parents, and were married within a month. At the time,
1 Undesignated statutory references are to the Penal Code.
2 The sentence consisted of life without the possibility of
parole plus 25 years to life for the section 12022.53, subdivision
(d) firearm enhancement on count 1. The court imposed the same
sentence on count 2, to run consecutively.
3We refer to appellant’s wife, Li, by her first name as was
done at trial.
2
appellant had been living in the United States for about 20 years.
After marrying, Li remained in China for over a year until 2007
when she received her visa and was able to move to the United
States. They had three children, one daughter and two younger
sons who were eight, six, and three years old in April 2016.
Throughout their marriage, appellant controlled Li’s daily
activities and finances, requiring her to seek his permission to do
almost anything. In 2011, Li obtained her nursing license, but
appellant did not allow her to work. Appellant frequently started
fights with Li. During every argument, appellant engaged in
verbal abuse and threatened violence against Li and her parents,
who were in China. During one altercation, appellant became
extremely angry, cursed at Li and threatened to kill her. In the
middle of the argument, appellant started to run upstairs. Li
knew appellant kept guns upstairs in a gun safe, and she thought
appellant was going upstairs to get a gun. Li believed the only
reason appellant did not retrieve a gun on that occasion was that
he injured his foot on the stairs and appellant’s mother yelled at
him. During another argument in March 2013, Li suffered
injuries and was bleeding from her nose and mouth after
appellant punched her.
After this incident, Li took the children to China for two
years. She returned to the United States with the children in
February or March 2015. At first, appellant was nice to Li; he
had a job, he helped with the chores, and he was good with the
children. The family moved into a townhouse in West Covina in
July 2015. But a month later, appellant lost his job and reverted
“back to his old self,” arguing with Li all day and threatening her
parents. In September 2015, Li started working three to four
days a week.
3
Li’s parents, Zhang and Diao, arrived from China in
December 2015 for a four-month stay with Li and appellant. The
parents did not speak English, and their cell phones did not work
in the United States. They stayed in an upstairs bedroom down
the hallway from appellant’s master bedroom. Li’s parents did
not like appellant, and at some point they changed their return
flight to China from April 19 to April 15, 2016, because they felt
uncomfortable in the house with him.
2. Reports of Multiple Gunshots
On April 13, 2016, Li went work at 6:30 p.m., leaving her
parents, the three children, and appellant at home.
About two hours later, several neighbors and others in the
area called 911 to report hearing multiple gunshots. One
neighbor reported hearing over 20 gunshots, children crying, and
one child yelling for his or her mother. Appellant’s next door
neighbor was awakened by gunshots and heard children crying.
Another person heard a boy screaming in the townhouse across
the street and saw a man on the second floor pacing back and
forth before closing the blinds and turning off the light.
3. The Scene of the Shooting
Around 8:55 p.m. two West Covina police officers
responding to the 911 dispatch knocked on the front door of
appellant’s two-level townhouse. Appellant came down the stairs
and immediately answered the door. He appeared to be
frightened and showed symptoms of being under the influence of
methamphetamine.4 More officers arrived, and appellant was
detained and handcuffed. One officer kicked in the door to the
4The parties stipulated that appellant’s blood test had
come back negative for alcohol and any illicit drugs.
4
downstairs bathroom and found the children. The youngest child
had blood spatter and smeared blood on his pajamas. Other
officers proceeded upstairs and found Zhang’s body at the top of
the stairs near the door to the master bedroom. Diao’s body was
down the hallway to the right outside a bedroom. The scene was
“horrific,” and there was blood everywhere.
Zhang’s brain matter could be seen around her head and
splattered on the wall behind her head. There was high velocity
blood spatter on the wall, which indicated the shot had been fired
close to her head in an upward direction. She was missing
several front teeth and there was a bullet hole in her mouth.
Police recovered a tooth and an expended bullet casing from the
stairs leading to the second floor.
Brain matter mixed with coagulated blood was around
Diao’s head. The shape and pattern of blood spatter on the
nearby bedroom door indicated that Diao was lying on the floor
when he was shot. Two bullets were lodged in the hardwood floor
under Diao’s torso. Bullets also went through the back of Diao’s
torso and straight through the ceiling below.
A meat cleaver was found on the floor next to Diao’s left
hand. The knife was positioned oddly in relation to the body and
seemed out of place because it appeared spotless despite the
amount of blood at the scene.5
4. Investigation and Evidence
Police recovered 11 expended bullets and 18 expended
bullet casings from the residence. There were bullet holes in the
high-vaulted ceiling above the front door and two bullet holes in
5 Although there was no visible blood on the meat cleaver,
it did have some dried blood on it.
5
the ceiling of the first floor office. On the desk in the office police
found a computer with two tabs open for the West Covina police
department along with a sheet of paper with the address of the
West Covina police station written in appellant’s hand.
In the closet of the master bedroom police found a
semiautomatic .45-caliber FNH model FNX-.45 handgun with an
empty 10-round magazine inside it. The gun was in “slide lock,”
that is, the slide was locked to the rear, which happens when the
last round is fired or the gun has been locked manually. A gun
holster and two other 10-round magazines were found next to the
gun; one had one round remaining, and the other had 10 rounds.
Four more firearms, pistol boxes, and three boxes of ammunition
were recovered from two locked gun safes in the master bedroom.
Rifle ammunition was also found in the downstairs closet. All of
the firearms were registered to appellant.
All 18 of the cartridge casings recovered, all of the
expended bullets, and those bullet fragments not too damaged or
small to be analyzed were determined to have been fired from the
FNH handgun. The firearm was in proper working condition and
it had five to six different safety mechanisms that were all in
proper working order.
Appellant had no injuries. A gunshot residue test revealed
that appellant had gunshot residue on his hands. The single
source DNA profile on the trigger of the handgun matched
appellant, and Zhang and Diao were excluded as possible sources.
Bloodstains on the floor of the master bathroom matched Zhang’s
DNA profile.
5. The Autopsies
Zhang suffered a total of 12 gunshot wounds, eight of which
were fatal. The autopsy showed bleeding in the wound path of
6
many of the wounds, indicating that Zhang was still alive when
she suffered those wounds.
Zhang sustained two fatal wounds to her head, both of
which would have caused her to lose consciousness and were very
quickly fatal. One bullet entered her cheek, passed through the
skull injuring her brain, and exited the skull through the back of
her head. The other fatal head wound was around Zhang’s lips.
Soot on the soft tissues underneath and behind her lips indicated
the gun was in Zhang’s mouth when it was fired. The bullet
lodged in Zhang’s brain.
Diao also suffered 12 gunshot wounds, 11 of which were
fatal. Many of these wounds were suffered when he was still
alive. Diao sustained six fatal gunshot wounds to the head, one
to the right lung, three to the left lung, and one wound to the
abdomen. Three of the bullets from the gunshots to the head
were recovered from Diao’s brain. Diao sustained one nonfatal
wound to his neck, but that bullet lodged in his skull, and the
wound would have incapacitated and caused him to lose
consciousness. With one exception, all of the bullets that struck
Diao travelled from the back to the front of his body.
The Defense Case
Gunshot residue was collected from both Diao’s and
Zhang’s hands, which indicated they “may have discharged a
firearm” or may have been in the area of the discharged firearm
or gunshot residue.
Appellant testified in his own defense.
Appellant stated that the only time he ever laid hands on
his wife was during the 2013 incident when he hit her on the side
of the head once or twice. He felt “very sorry” about the incident
and acknowledged that he should not have struck her.
7
When Li’s parents came to visit in December 2015,
appellant’s unemployment became a source of tension, and
appellant and his in-laws argued frequently. Appellant did not
like Zhang and Diao because they disrespected him, and he did
not like having them live in his home. Appellant knew that
Zhang and Diao had a flight back to China on April 15, 2016.
On the night of the shooting, Li went to work and appellant
stayed home with the children. He cooked and ate dinner with
them and cleaned up while Li’s parents stayed upstairs in their
bedroom. After dinner Diao asked appellant to come upstairs.
When appellant went to his in-laws’ bedroom, they told him they
wanted to continue living with appellant and Li. Appellant
thought this was a very bad idea, and the conversation became
heated as Zhang and Diao became very angry. Zhang pushed
appellant and said, “ ‘Go ahead to [sic] punch me.’ ” Appellant
stepped back into the hallway and put his hands behind his back.
Zhang yelled, “ ‘Why don’t you start the fight? Are you a
coward?’ ” and threatened to hit her head on the wall if appellant
did not fight her. When appellant did not respond, Zhang ran
into the bedroom and returned with a meat cleaver. Standing
about six feet from appellant, she put the meat cleaver up to her
neck and said, “ ‘If you don’t agree that we can stay here and live
here, then I will cut myself or smash myself.’ ”
Zhang did not cut herself, and appellant thought she just
wanted appellant to agree to let them stay. When appellant
asked Zhang to put down the meat cleaver, Zhang said, “ ‘No.
Right now, you have to agree.’ ” Appellant responded, “ ‘If you do
want to kill yourself, there is no way for me to stop that.’ . . .
‘Well, it’s your decision,’ . . . ‘but please, right now, please leave
8
my house. Please go outside. Once you go outside, you can do
anything you want then. It has nothing to do with me.’ ”
Diao then took the meat cleaver from his wife, and pointing
it at appellant, moved closer and said, “ ‘I will cut your head off.’ ”
At this, appellant threatened to call the police. Zhang placed her
hand on Diao’s forearm and directed him toward their bedroom.
After Diao had left with the meat cleaver Zhang blocked
appellant’s way to the stairs and said, “ ‘Don’t call the police.’ ”
Appellant replied, “ ‘I’m for sure going to call the police because
what my father-in-law did was illegal.’ . . . ‘After the police officer
arrives, they’re going to arrest my father-in-law, and they’re
going to put him in jail.’ ” He then threatened that after Diao “is
deported, he will never be issued a visa from the United States,
and he will never come to the U.S. again.” Zhang dropped to her
knees and pleaded, “ ‘Please don’t call the police.’ . . . ‘Could you
forgive us for my daughter’s sake?’ ” Appellant told Zhang to get
out of his way. Still on her knees, Zhang asked, “ ‘Is there
anything that I can do to stop you from calling the police?’ ”
Appellant told her he would not call the police only if she and
Diao left the house with all of their belongings and never
returned.
Appellant went into his room and closed the door to allow
Zhang to speak privately with Diao. He stayed there for no more
than an hour. After a while, appellant asked through the closed
door if they were done talking and if he could come out. Hearing
no response, appellant continued to wait in his room. Appellant
started to become “a little scared” because the house was so quiet,
and his door was closed. He decided to go out and have a look
around. Before leaving his room, appellant armed himself with a
loaded gun from the nightstand because Li’s parents had the
9
meat cleaver and had made threats. He did not have any
intention of shooting anyone, but he thought that if his in-laws
saw the gun they would leave the house.
Pointing the gun toward the ceiling with the safety off,
appellant stepped into the hallway and immediately felt someone
grab his leg. He looked down and saw Zhang on the floor.
Appellant screamed at her to let him go. Suddenly Diao ran out
of another bedroom and grabbed the gun. After a brief struggle
Diao successfully wrested the gun away from appellant.
Diao pointed the gun at appellant and pulled the trigger
four or five times, but the gun did not fire. Appellant realized
that although the gun was loaded, it was not firing because there
was no cartridge in the chamber. Appellant broke away from
Zhang and tried to grab the gun from Diao. Zhang got up and
joined the struggle. While they were all grappling for the gun,
appellant heard the sound of “sliding and collision for the metal
from the gun,” and realized that a cartridge might have been
chambered, which would allow the gun to be fired. Appellant
yelled, “ ‘Danger. Be careful.’ ”
Zhang slipped and fell to the floor. As she was starting to
get up, appellant heard two gunshots, and realized that Diao had
accidentally pulled the trigger, firing two shots into Zhang’s back.
Appellant and Diao continued to struggle and another two more
shots were fired directly into Zhang’s face. Appellant gained
control of the gun and was able to engage the gun safety.
Appellant relaxed a little but suddenly Diao ran into his
bedroom and returned with the meat cleaver. As Diao charged
toward him, appellant thought Diao was going to kill him.
Panicked and in tremendous fear, appellant unlocked the gun’s
10
safety and “shot nonstop” at Diao, continuing to squeeze the
trigger even after no bullets remained in the gun.
Appellant checked Diao and Zhang after he had stopped
shooting, but neither showed any signs of life. Appellant felt very
sad and depressed. He did not know how he was going to tell Li
about what had happened. Appellant wanted to end his life, and
he tried to kill himself with the gun, but there were no bullets.
He became very angry and threw the gun on the floor. Then he
saw the meat cleaver. He picked it up and sat on Diao and
Zhang’s bed as he contemplated killing himself with it, but
unable to bring himself to do it, he threw the meat cleaver on the
floor. Appellant decided he “wanted to end [his] own life with the
gun in [his] own master bedroom.” He picked up the gun, went
into his room, and put a new loaded magazine into the gun.
Appellant was “very pissed off, very angry” because his in-
laws had brought this nightmare on him. He was so angry that,
instead of shooting himself, he walked out of his bedroom and
shot his dead in-laws several more times. He then reloaded the
gun with a single bullet. Suddenly he thought about his three
children. Appellant did not know where the children were, and
he decided he needed to find them. He had not heard his children
crying at any point during the incident, nor did he see his son at
the top of the stairs or see any bloodstains on his youngest child’s
pajamas. After searching upstairs he eventually located the
children in the downstairs bathroom.
Appellant then “googled” the phone number for the police
station, but he did not call the police, fearing that they would
respond with guns and a SWAT team, putting his children at
risk. Instead, he wrote down the address of the police station and
planned to take his children to report the incident in person.
11
Appellant was on his way upstairs when the police knocked on
the door.
DISCUSSION
I. Instructional Error
The defense requested instruction on heat of passion and
provocation pursuant to CALJIC No. 8.42 as to both counts. The
trial court denied the request as to Zhang’s killing in count 1, but
found sufficient evidence supported the instruction as to the
killing of Diao in count 2. However, in its instructions to the
jury, the court erroneously omitted CALJIC No. 8.42, an error
appellant contends warrants reversal of his first degree murder
conviction on count 2. Appellant also challenges the trial court’s
denial of instructions on voluntary manslaughter as to the killing
of Zhang based on heat of passion and imperfect self-defense.
A. Legal principles
It is settled that in a criminal case, even absent a request,
“a trial court is obligated to instruct the jury on all general
principles of law relevant to the issues raised by the evidence.
[Citation.] It is error for a trial court not to instruct on a lesser
included offense when the evidence raises a question whether all
of the elements of the charged offense were present, and the
question is substantial enough to merit consideration by the
jury.” (People v. Booker (2011) 51 Cal. 4th 141, 181 (Booker);
People v. Breverman (1998) 19 Cal. 4th 142, 154 (Breverman).)
However, “ ‘[a]n instruction on a lesser included offense
must be given only if there is substantial evidence from which a
jury could reasonably conclude that the defendant committed the
lesser, uncharged offense, but not the greater, charged offense.’ ”
(People v. Nelson (2016) 1 Cal. 5th 513, 538 (Nelson).) “The
‘substantial evidence requirement is not satisfied by “ ‘any
12
evidence . . . no matter how weak’ ” ’ ” (ibid.), and “[s]peculative,
minimal, or insubstantial evidence is insufficient to require an
instruction on a lesser included offense” (People v. Simon (2016) 1
Cal. 5th 98, 132). “On appeal, we review independently the
question whether the trial court improperly failed to instruct on a
lesser included offense.” (People v. Souza (2012) 54 Cal. 4th 90,
113.)
“ ‘Murder is the unlawful killing of a human being . . . with
malice aforethought.’ (§ 187, subd. (a).) ‘Manslaughter is the
unlawful killing of a human being without malice.’ (§ 192,
subd. (a).) Manslaughter is a lesser included offense of murder,
and a defendant who commits an intentional and unlawful killing
but who lacks malice is guilty of voluntary manslaughter. Heat
of passion is one of the mental states that precludes the
formation of malice and reduces an unlawful killing from murder
to manslaughter.” (Nelson, supra, 1 Cal.5th at p. 538;
Breverman, supra, 19 Cal.4th at p. 154.)
Our Supreme Court has explained: “A heat of passion
theory of manslaughter has both an objective and a subjective
component. [Citations.] [¶] ‘ “To satisfy the objective or
‘reasonable person’ element of this form of voluntary
manslaughter, the accused’s heat of passion must be due to
‘sufficient provocation.’ ” ’ ” (People v. Moye (2009) 47 Cal. 4th
537, 549 (Moye).) Legally sufficient provocation is that which
“ ‘causes a person to act, not out of rational thought but out of
unconsidered reaction to the provocation.’ [Citation.] Further,
the ‘proper standard focuses upon whether the person of average
disposition would be induced to react from passion and not from
judgment.’ ” (Nelson, supra, 1 Cal.5th at p. 539.)
13
“For purposes of the heat of passion doctrine, ‘provocation
is sufficient not because it affects the quality of one’s thought
processes, but because it eclipses reflection. A person in this
state simply reacts from emotion due to the provocation, without
deliberation or judgment.’ [Citation.] The standard requires
more than evidence that a defendant’s passions were aroused.
The facts and circumstances must be ‘ “sufficient to arouse the
passions of the ordinarily reasonable man.” ’ ” (Nelson, supra, 1
Cal.5th at p. 539.)
As for the subjective element of voluntary manslaughter
based on provocation, the high court has explained that the
defendant “must be shown to have killed while under ‘the actual
influence of a strong passion’ induced by such provocation.”
(Moye, supra, 47 Cal.4th at p. 550; Nelson, supra, 1 Cal.5th at
p. 539.) The court has emphasized that “it is not sufficient that a
person ‘is provoked and [then] later kills.’ ” (Nelson, at p. 539.)
Rather, where “ ‘ “sufficient time has elapsed between the
provocation and the fatal blow for passion to subside and reason
to return, the killing is not voluntary manslaughter.” ’ ” (Moye,
at p. 550, quoting Breverman, supra, 19 Cal.4th at p. 163.)
Imperfect self-defense also reduces murder to voluntary
manslaughter. (People v. Soto (2018) 4 Cal. 5th 968, 970.)
“ ‘Under the doctrine of imperfect self-defense, when the trier of
fact finds that a defendant killed another person because the
defendant actually, but unreasonably, believed he was in
imminent danger of death or great bodily injury, the defendant is
deemed to have acted without malice and thus can be convicted of
no crime greater than voluntary manslaughter.’ [Citation.]
‘[J]ust as with perfect self-defense or any defense, “[a] trial court
need give a requested instruction concerning a defense only if
14
there is substantial evidence to support the defense.” ’ ” (People v.
Nguyen (2015) 61 Cal. 4th 1015, 1048–1049.)
B. The erroneous omission of a heat of passion
instruction as to the count 2 killing of Diao was
harmless
Appellant contends that after finding sufficient evidence to
support a heat of passion instruction as to the Diao killing, the
trial court erred in omitting CALJIC No. 8.42. Appellant goes on
to assert that because the omission withheld a theory of the
defense from the jury’s consideration, the error was structural
and requires reversal per se. Alternatively, appellant maintains
that the failure to instruct on the defense theory constituted
federal Constitutional error subject to reversal under Chapman v.
California (1967) 386 U.S. 18, 24 (Chapman). Respondent
counters that such instructional error is an error of California
law only, which in this case was harmless under the state
standards of reversibility set forth in People v. Watson (1956) 46
Cal. 2d 818, 836 (Watson). (See People v. Franklin (2018) 21
Cal. App. 5th 881, 890–891 (Franklin) [whether such an error
amounts to federal constitutional error governed by Chapman or
constitutes an error of state law only subject to Watson review
remains unsettled].)
We find sufficient evidence supported instruction on heat of
passion under CALJIC No. 8.42 as to the killing of Diao in this
case, and therefore conclude that the trial court erred in omitting
the instruction on count 2. (Booker, supra, 51 Cal.4th at p. 181.)
However, contrary to appellant’s assertion, the error is not
reversible per se. Our Supreme Court has observed that “[i]n the
nearly 50 years since Chapman was decided, the [United States
Supreme Court] repeatedly has emphasized that most errors
15
implicating a federal constitutional right, including most
instructional errors, are amenable to harmless error analysis and
that only a ‘very limited class of cases’ are subject to per se
reversal.” (People v. Aranda (2012) 55 Cal. 4th 342, 363
(Aranda).) Indeed, the high court has made “clear that harmless-
error analysis applies to instructional errors so long as the error
at issue does not categorically ‘ “vitiat[e] all the jury’s
findings.” ’ ” (Hedgpeth v. Pulido (2008) 555 U.S. 57, 61.)
Structural errors “ ‘deprive defendants of “basic
protections” ’ [citation] and ‘necessarily render a criminal trial
fundamentally unfair or an unreliable vehicle for determining
guilt or innocence’ ” (Aranda, supra, 55 Cal.4th at p. 364), or the
assessment of the errors’ effect is so difficult and speculative as to
render any analysis of harm irrelevant. (See United States v.
Gonzalez-Lopez (2006) 548 U.S. 140, 149, fn. 4; Aranda, at p. 365
[“An instruction that effectively lowers the prosecution’s burden
of proving guilt beyond a reasonable doubt is structural error
because it ‘vitiates all the jury’s findings’ and its effect on the
verdict is ‘necessarily unquantifiable and indeterminate’ ”].)
Structural errors “include the denial of counsel, [citation], the
denial of the right of self-representation, [citation], the denial of
the right to public trial, [citation], and the denial of the right to
trial by jury by the giving of a defective reasonable-doubt
instruction.” (Gonzalez-Lopez, at p. 149.)
Here, in light of the other instructions given, the trial
court’s omission of CALJIC No. 8.42 neither improperly lowered
the prosecution’s burden of proof nor effectively invalidated the
jury’s findings. We therefore conclude that the court’s failure to
instruct with CALJIC No. 8.42 as to count 2⎯while
erroneous⎯is amenable to harmless error review. And even
16
under the more stringent Chapman standard, we find the error to
be harmless beyond a reasonable doubt.
The jury in this case was instructed pursuant to CALJIC
No. 8.20 that “[i]f you find that the killing was preceded and
accompanied by a clear, deliberate intent on the part of the
defendant to kill, which was the result of deliberation and
premeditation, so that it must have been formed upon pre-
existing reflection and not under a sudden heat of passion or
other condition precluding the idea of deliberation, it is murder of
the first degree.” (Italics added.) The charge also defined second
degree murder as an unlawful killing of a human being with
malice aforethought where “the evidence is insufficient to prove
deliberation and premeditation.” (CALJIC No. 8.30.) Thus, in
convicting appellant of first degree rather than second degree
murder, the jury necessarily found the evidence sufficient to
establish premeditation and deliberation, and also must have
rejected the notion that appellant formed the intent to kill “under
a sudden heat of passion or other condition precluding the idea of
deliberation.”
“It is well established that ‘[e]rror in failing to instruct the
jury on a lesser included offense is harmless when the jury
necessarily decides the factual questions posed by the omitted
instructions adversely to defendant under other properly given
instructions.’ ” (People v. Lancaster (2007) 41 Cal. 4th 50, 85; see
Franklin, supra, 21 Cal.App.5th at p. 894; People v. Speight
(2014) 227 Cal. App. 4th 1229, 1245–1246.) Here, because the
jury’s finding that appellant premeditated and deliberated the
killing is manifestly inconsistent with having acted under the
heat of passion, we conclude that the omission of CALJIC
17
No. 8.42 as to count 2 was harmless even under Chapman’s
heightened federal constitutional standard.
C. The trial court properly denied appellant’s request
for heat of passion and imperfect self-defense
instructions as to the killing of Zhang (count 1)
Appellant also contends the trial court erred in denying the
defense request for heat of passion and imperfect self-defense
instructions on count 1. However, as to the killing of Zhang, the
record is devoid of any evidence to support these theories, and the
trial court had no duty to instruct on them. (People v. Romero
(2008) 44 Cal. 4th 386, 402–403; Breverman, supra, 19 Cal.4th at
p. 154 [trial court not required to instruct on lesser included
offenses “when there is no evidence that the offense was less than
that charged”].)
It was the defense theory that Zhang’s killing was an
accident. According to appellant, when he and Diao were
struggling over the gun, it fired accidentally, hitting Zhang in the
back and face. Nothing in this scenario supports appellant’s
claim that he intentionally killed Zhang under a sudden heat of
passion or because he actually believed he was in imminent
danger of death or great bodily injury. Appellant nevertheless
argues that the jury should have been permitted to reject
appellant’s claim of accident but still find that he did not act with
malice aforethought. Appellant thus asserts that the jury could
have found that appellant’s passions were aroused when Li’s
parents attacked him, and, in response to this intense emotion,
appellant intentionally shot Zhang without deliberation or
judgment. This argument fails because there is simply no
evidence of objectively sufficient provocation or that appellant
was actually motivated by passion when he killed Zhang.
18
“ ‘The provocation which incites the defendant to homicidal
conduct in the heat of passion must be caused by the victim,’ ”
and the victim’s “ ‘conduct must be sufficiently provocative that it
would cause an ordinary person of average disposition to act
rashly or without due deliberation and reflection.’ ” (Moye, supra,
47 Cal.4th at pp. 549–550; Nelson, supra, 1 Cal.5th at p. 540.)
Indeed, “ ‘[T]he anger or other passion must be so strong that the
defendant’s reaction bypassed his thought process to such an
extent that judgment could not and did not intervene.’ ” (People
v. Beck and Cruz (2019) 8 Cal. 5th 548, 649.) And “ ‘ “ ‘[i]f
sufficient time has elapsed for the passions of an ordinarily
reasonable person to cool, the killing is murder, not
manslaughter.’ ” ’ ” (Ibid.)
Zhang’s provocative conduct here was simply grabbing
appellant’s leg from a position on the floor. Even assuming this
conduct actually did incite appellant, “ ‘no defendant may set up
his own standard of conduct and justify or excuse himself because
in fact his passions were aroused’ ” unless the provocation was
“ ‘such as would naturally tend to arouse the passion of the
ordinarily reasonable man.’ ” (People v. Beltran (2013) 56 Cal. 4th
935, 950.) “ ‘A provocation of slight and trifling character, such
as words of reproach, however grievous they may be, or gestures,
or an assault, or even a blow, is not recognized as sufficient to
arouse, in a reasonable man, such passion as reduces an unlawful
killing with a deadly weapon to manslaughter.’ ” (People v. Wells
(1938) 10 Cal. 2d 610, 623.) We fail to see how Zhang’s conduct
would “drive any ordinary person to act rashly or without due
deliberation and reflection.” (People v. Najera (2006) 138
Cal. App. 4th 212, 226.)
19
Similarly, there was no evidence to support an instruction
on voluntary manslaughter based on imperfect self-defense as to
the killing of Zhang. Our Supreme Court has cautioned that the
doctrine of imperfect self-defense “is a ‘ “narrow” ’ one and ‘will
apply only when the defendant has an actual belief in the need
for self-defense and only when the defendant fears immediate
harm that ‘ “ ‘must be instantly dealt with.’ ” ’ ” (People v. Landry
(2016) 2 Cal. 5th 52, 98.) Clearly, neither Zhang’s threat to cut
herself with the knife nor the act of grabbing appellant’s leg
placed appellant in any imminent peril. Moreover, appellant’s
testimony established that when he shot Zhang, she did not have
the knife and was no longer grabbing appellant’s leg.
II. Evidentiary Claims
Appellant asserts the trial court prejudicially erred in
admitting certain evidence at trial. We review the court’s rulings
on the admissibility and relevancy of evidence for abuse of
discretion. (People v. Merriman (2014) 60 Cal. 4th 1, 74; People v.
Clark (2016) 63 Cal. 4th 522, 590 (Clark).) Such rulings “ ‘will not
be disturbed except on a showing the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice.’ ” (People v.
Brown (2003) 31 Cal. 4th 518, 534; People v. Jackson (2016) 1
Cal. 5th 269, 330.)
A. The trial court did not abuse its discretion in
admitting evidence of the 2013 domestic violence
incident
Appellant contends the trial court abused its discretion in
admitting evidence of the uncharged 2013 domestic violence
incident against Li because the evidence was inadmissible under
20
Evidence Code sections 1109 and 1101 and was more prejudicial
than probative. We disagree.
1. Relevant background
Over defense objection, the trial court admitted evidence of
the 2013 incident under Evidence Code sections 1109 and 1101,
subdivision (b). In ruling the evidence admissible, the court
explained that the evidence would “easily survive a[n Evidence
Code section] 352 analysis,” it was not unduly inflammatory,
there was no risk of confusing the issues, the incident was not
remote in time, and Li’s testimony about it would not consume a
great deal of time.
At trial Li testified that during an argument with appellant
in 2013, appellant struck Li on the left temple with his closed fist
while she was sitting on the couch holding the couple’s six-month-
old son. Li suffered a gash inside her mouth, redness and
swelling on her forehead, and a loosened tooth. There was blood
on the floor and Li was in pain from the injuries to her face.
Appellant’s father intervened to stop appellant from hitting Li
again, and Li called 911.
Li told the responding officer that she had been sitting on
the couch with her children when appellant pulled her hair and
pinned her head to the armrest. After appellant stopped hitting
her, Li reported that she saw stars and felt lightheaded. The
officer observed blood, redness on the right side of Li’s face, and a
laceration on her upper gum in the front of her mouth. Police
took appellant into custody and confiscated 12 handguns,
10 rifles, and 1 shotgun from the home.
Li testified that she wanted to divorce appellant, but her
parents advised her to remain in the marriage. Li then went to
21
China for about two years. She returned after the criminal case
based on the 2013 incident was over.
2. Legal principles
Ordinarily, evidence of prior criminal conduct is
inadmissible to show a defendant’s predilection to commit other
criminal acts. (Evid. Code, § 1101, subd. (a).) However, in cases
involving sexual offenses and domestic violence, the Legislature
has created exceptions to the general prohibition against
propensity evidence. (Evid. Code, §§ 1108, 1109; People v. Brown
(2011) 192 Cal. App. 4th 1222, 1232; People v. Reyes (2008) 160
Cal. App. 4th 246, 251.) In domestic violence cases, Evidence Code
section 11096 “ ‘permits the admission of defendant’s other acts of
domestic violence for the purpose of showing a propensity to
commit such crimes.’ ” (Brown, at p. 1232.)
The rationale underlying this exception is that by
admitting evidence of a defendant’s other acts of domestic
violence to show a disposition to commit acts of domestic violence,
the statute eliminates any presumption that “the charged offense
was an isolated incident, an accident, or a mere fabrication.”
(Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1876
6 Section 1109 provides in relevant part: “(a)(1) Except as
provided in subdivision (e) or (f), in a criminal action in which the
defendant is accused of an offense involving domestic violence,
evidence of the defendant’s commission of other domestic violence
is not made inadmissible by Section 1101 if the evidence is not
inadmissible pursuant to Section 352.” Under subdivision (e),
“[e]vidence of acts occurring more than 10 years before the
charged offense is inadmissible under this section, unless the
court determines that the admission of this evidence is in the
interest of justice.”
22
(1995–1996 Reg. Sess.) June 25, 1996, p. 3 (Assembly Analysis of
Senate Bill 1876); see People v. Falsetta (1999) 21 Cal. 4th 903,
916–917 (Falsetta) [“[b]y reason of [Evid. Code] section 1108, trial
courts may no longer deem ‘propensity’ evidence unduly
prejudicial per se”]; People v. Johnson (2010) 185 Cal. App. 4th
520, 532 (Johnson).)
Apart from admissibility under Evidence Code section
1109, evidence of a prior uncharged act may also be admissible to
prove a disputed material fact—other than a criminal
disposition—such as motive, intent, knowledge, or the absence of
mistake or accident. (Evid. Code, § 1101, subd. (b); People v. Beck
and Cruz, supra, 8 Cal.5th at p. 631.)
Before a trial court may admit such other crimes evidence
under Evidence Code section 1101, subdivision (b) or section
1109, it must, by balancing the factors set forth in Evidence Code
section 352, determine whether the probative value of the
evidence “ ‘is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b)
create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.’ ” (People v. Williams (2013) 58
Cal. 4th 197, 270 (Williams); People v. Fruits (2016) 247
Cal. App. 4th 188, 202 (Fruits).)
“ ‘ “ ‘[P]rejudicial’ ” ’ ” in the context of the court’s section
352 analysis “ ‘ “is not synonymous with ‘damaging.’ ” ’ ”
(Williams, supra, 58 Cal.4th at p. 270; Johnson, supra, 185
Cal.App.4th at p. 534.) “The prejudice which exclusion of
evidence under Evidence Code section 352 is designed to avoid is
not the prejudice or damage to a defense that naturally flows
from relevant, highly probative evidence. ‘[A]ll evidence which
tends to prove guilt is prejudicial or damaging to the defendant’s
23
case. The stronger the evidence, the more it is “prejudicial.” ’ ”
(People v. Karis (1988) 46 Cal. 3d 612, 638; People v. Poplar (1999)
70 Cal. App. 4th 1129, 1138.) Rather, evidence subject to exclusion
under Evidence Code section 352 as unduly prejudicial is
evidence “ ‘ “which uniquely tends to evoke an emotional bias
against defendant as an individual and which has very little
effect on the issues.” ’ ” (Williams, at p. 270; Fruits, supra, 247
Cal.App.4th at p. 205.)
Other factors relevant to the Evidence Code section 352
analysis include: whether the prior act of domestic violence is
more inflammatory or egregious than the current offense;
whether the presentation of the evidence would consume
inordinate time at trial; the likelihood that the jury might
confuse the prior incident with the charged offense; whether the
prior domestic violence occurred recently or is remote in time;
and whether the defendant was convicted and punished for the
prior offense. (People v. Rucker (2005) 126 Cal. App. 4th 1107,
1119; Johnson, supra, 185 Cal.App.4th at pp. 533–535; People v.
Balcom (1994) 7 Cal. 4th 414, 427.)
3. No abuse of discretion occurred
Appellant contends the evidence of the prior domestic
violence incident was inadmissible under Evidence Code section
1109 because the killing of Diao and Zhang was not a domestic
violence offense within the meaning of Evidence Code section
1109, subdivision (d)(3). We disagree.
Evidence Code section 1109, subdivision (d)(3) defines
“domestic violence” by reference to the definitions contained in
two different statutes: “ ‘Domestic violence’ has the meaning set
24
forth in Section 13700[7] of the Penal Code. Subject to a hearing
conducted pursuant to Section 352, which shall include
consideration of any corroboration and remoteness in time,
‘domestic violence’ has the further meaning as set forth in Section
6211 of the Family Code, if the act occurred no more than five
years before the charged offense.” Family Code section 6211 in
turn broadly defines “domestic violence” as abuse perpetrated
against, inter alia, a spouse or “[a]ny other person related by
consanguinity or affinity within the second degree.” Appellant
concedes that under this definition his in-laws were related to
him by affinity, and therefore the charged crimes constituted
“domestic violence” under the Family Code. But appellant argues
that because of Evidence Code section 1109, subdivision (d)(3)’s
requirement of “a hearing conducted pursuant to [Evidence Code]
Section 352” in reference to “domestic violence” as defined in
Family Code section 6211, the broader definition of domestic
violence only applies to the prior act of domestic violence, and not
to the charged offense.
Evidence Code section 1109 itself contains no indication
that a different definition of “domestic violence” is intended to
apply to evidence of the charged domestic violence offense than to
a prior domestic violence crime. Moreover, appellant’s argument
ignores the plain language of Evidence Code section 1109,
subdivision (a), which expressly “allows the introduction of prior
domestic crimes evidence ‘in a criminal action in which the
7Penal Code section 13700, subdivision (b) defines
“domestic violence” as “abuse committed against an adult or a
minor who is a spouse, former spouse, cohabitant, former
cohabitant, or person with whom the suspect has had a child or is
having or has had a dating or engagement relationship.”
25
defendant is accused of an offense involving domestic violence.’ ”
(People v. Megown (2018) 28 Cal. App. 5th 157, 166.) To “involve”
commonly means “ ‘to include, contain, or comprehend within
itself or its scope.’ ” (Ibid.) Thus, being “accused of an offense
involving domestic violence” encompasses a broader range of
conduct than the domestic violence defined as abuse committed
against one of certain specified individuals under Penal Code
section 13700. (Ibid.)
Appellant’s killing of Li’s parents plainly involved domestic
violence as that term is defined in Evidence Code section 1109,
making evidence of other domestic violence admissible. And the
evidence of the prior domestic violence tended to show that the
murders were the culmination of ongoing domestic violence
involving the domination and control of Li and her parents
through threats and injury. (See People v. Kerley (2018) 23
Cal. App. 5th 513, 536 [escalating nature of domestic violence].)
There was no error in the trial court’s admission of the prior
domestic violence under Evidence Code section 1109 in this case.
Appellant further contends that evidence of the prior
conduct lacked sufficient similarity to the charged conduct for
admission under Evidence Code section 1101, subdivision (b).
But varying degrees of similarity between the uncharged conduct
and the charged offense are required where, as here, evidence of
prior conduct is offered to show motive, intent, knowledge, and
lack of self-defense. (People v. Ewoldt (1994) 7 Cal. 4th 380, 402.)
Our Supreme Court has explained that “ ‘[t]he greatest degree of
similarity is required for evidence of uncharged misconduct to be
relevant to prove identity’ ” (People v. Harris (2013) 57 Cal. 4th
804, 841, quoting Ewoldt, at p. 403), while “ ‘[t]he least degree of
similarity (between the uncharged act and the charged offense) is
26
required in order to prove intent’ ” (People v. Daveggio and
Michaud (2018) 4 Cal. 5th 790, 827, quoting Ewoldt, at p. 402).
To be admissible to prove intent, the uncharged conduct need
only “ ‘be sufficiently similar to support the inference that the
defendant “ ‘probably harbor[ed] the same intent in each
instance.’ ” ’ ” (People v. Leon (2015) 61 Cal. 4th 569, 598, quoting
Ewoldt, at p. 402.)
Here, the prior misconduct was probative of appellant’s
motive to kill Li’s parents due to his desire to control Li. Our
Supreme Court has observed that evidence of motive may be
relevant to intent as well as the lack of justification, accident or
mistake, and the probative value of “other-crimes evidence on the
issue of motive does not necessarily depend on similarities
between the charged and uncharged crimes, so long as the
offenses have a direct logical nexus.” (People v. Demetrulias
(2006) 39 Cal. 4th 1, 15.) Contrary to appellant’s claim, the prior
incident did involve Li’s parents, as he cursed about them during
an argument at which they were not even present when he was
attempting to exert control over Li. The evidence also tended to
show the absence of justification, accident or mistake in resorting
to physical violence against a family member.
Under either Evidence Code section 1101, subdivision (b) or
section 1109, the question of admissibility of prior
misconduct/domestic violence evidence ultimately comes down to
whether the probative value of the evidence is “substantially
outweighed by the probability that its admission would create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury” under Evidence Code section 352. (People
v. Davis (2009) 46 Cal. 4th 539, 602.) Here, the trial court
27
properly concluded that the evidence was more probative than
prejudicial.
The 2013 incident was certainly far less inflammatory than
the brutal murders of Li’s parents, reducing the possibility the
jury’s passions would be inflamed by the uncharged conduct.
(See People v. Whisenhunt (2008) 44 Cal. 4th 174, 205.) The prior
incident was also recent, having occurred only three years before
the murders. Li’s additional testimony about the incident
consumed very little time, thus reducing any likelihood of
confusing the jury. In short, the trial court properly exercised its
discretion in admitting the evidence of the 2013 incident under
both Evidence Code sections 1101, subdivision (b) and 1109.
B. The improper admission of the double hearsay
evidence of appellant’s threat against Diao was
harmless
Diao told Zhang that during an argument with appellant,
appellant threatened to kill Diao and make him disappear so not
even the police would find him. Zhang reported appellant’s
threat to Li, and Li related the threat in her testimony at trial.
Respondent contends this double hearsay was properly admitted
under the Evidence Code section 1250 exception to the hearsay
rule for the declarants’ (that is, Diao’s and Zhang’s) state of
mind8 and as nonhearsay circumstantial evidence of Li’s or her
8 Evidence Code section 1250 provides in pertinent part:
“[E]vidence of a statement of the declarant’s then existing state of
mind, emotion, or physical sensation (including a statement of
intent, plan, motive, . . .) is not made inadmissible by the hearsay
rule when: [¶] (1) The evidence is offered to prove the declarant’s
state of mind, emotion, or physical sensation at that time or at
28
parents’ state of mind to explain Li’s, Zhang’s or Diao’s conduct.
(Clark, supra, 63 Cal.4th at pp. 590–591.)
Li’s testimony about the threat to Diao was inadmissible
under either theory. Of course, the statement was inadmissible
to prove appellant carried out his threat. (People v. Noguera
(1992) 4 Cal. 4th 599, 622 [“hearsay statements of victims
concerning fears of or threats against them by the accused, when
offered to prove the conduct of the accused, are not within the
exception to the hearsay rule embodied in Evidence Code section
1250”].) Further, because Diao’s statement, conveyed to Zhang
and passed on to Li, did not reveal anything about Diao’s or
Zhang’s mental state, Li’s testimony about it did not constitute a
statement of the declarant’s then-existing state of mind. The
evidence could not come in under the Evidence Code section 1250
exception to the hearsay rule. (See People v. Ortiz (1995) 38
Cal. App. 4th 377, 389 (Ortiz) [“evidence admitted under section
1250 is hearsay; it describes a mental or physical condition,
intent, plan, or motive and is received for the truth of the matter
stated”]; cf. Clark, supra, 63 Cal.4th at p. 592 [declarant’s
statement, “ ‘Oh my gosh, not a 187, please, lady, don’t die,’ ”
admissible as hearsay under Evid. Code, § 1250 as an expression
of emotional desire and fear of being charged with murder].)
The statement was also inadmissible as nonhearsay
circumstantial evidence of Li’s fear of appellant because Li was
not the declarant. (Ortiz, supra, 38 Cal.App.4th at p. 389 [the
declarant’s mental state must be in issue for such evidence to be
any other time when it is itself an issue in the action; or [¶]
(2) The evidence is offered to prove or explain acts or conduct of
the declarant.”
29
relevant].) Finally, contrary to respondent’s assertion, the
statement does not support a reasonable inference that Diao and
Zhang were afraid of appellant because the only evidence on the
subject of the victims’ mental state was Li’s testimony that her
parents did not fear appellant.9
Despite the error in admitting the evidence, we find its
effect to be harmless. Li testified that every time she and
appellant argued, appellant threatened to kill Li’s parents.
Given that evidence of appellant’s threats against his in-laws was
already properly before the jury, the erroneous admission of this
statement was neither prejudicial under Watson10 nor did it
render the trial fundamentally unfair. (People v. Partida (2005)
37 Cal. 4th 428, 439 [“the admission of evidence, even if erroneous
under state law, results in a due process violation only if it makes
the trial fundamentally unfair”]).
C. The trial court did not abuse its discretion in
allowing Li to testify that she believed appellant was
going to get a gun during one of their arguments
Li testified that throughout their marriage appellant
controlled virtually every aspect of her life and started countless
9 When a statement is admitted as nonhearsay
circumstantial evidence of the declarant’s state of mind or effect
on the listener, a limiting instruction is required informing the
jury that “the declaration is not received for the truth of the
matter stated and can only be used for the limited purpose for
which it is offered.” (Ortiz, supra, 38 Cal.App.4th at p. 389; Evid.
Code, § 355.) No limitation on the jury’s consideration of this
evidence was given here.
10 Watson, supra, 46 Cal.2d at page 836.
30
fights with Li. Appellant would threaten Li during every
argument, and he hit her in February 2013.11 Li also testified
that during one argument appellant threatened to kill her, and
then ran upstairs where he kept guns and knives in two cabinets
in the master bedroom. Li was afraid appellant was going to
retrieve one of his guns. The trial court overruled a defense
objection to this testimony on the ground that it went to Li’s state
of mind.
Appellant contends the trial court prejudicially erred in
permitting Li to testify to her belief that appellant was going to
get his gun because the testimony was speculative, lacked
foundation, and Li’s state of mind was irrelevant. We find no
abuse of discretion.
One of the prosecution’s theories of the case was that the
murders of Li’s parents were the culmination of a pattern of
domestic violence involving the exercise of dominion and control
over Li and her parents through verbal abuse and threats. In
support of this theory the prosecution presented evidence of the
couple’s constant fighting, appellant’s verbal abuse of Li, and a
prior domestic violence incident under Evidence Code section
1109. Li’s state of mind was part and parcel of this evidence of
domestic violence, and her testimony that she thought appellant
was going to retrieve a gun after threatening to kill Li was thus
highly relevant to the prosecution’s theory.
Further, in light of the fact that Li knew appellant kept
guns and knives in the couple’s master bedroom upstairs and
appellant had just threatened to kill Li, Li reasonably inferred
11This is the same domestic violence to which police
responded in March 2013.
31
that appellant’s purpose in going upstairs was to retrieve a gun.
The trial court thus properly overruled the defense objection that
Li’s testimony lacked foundation and constituted impermissible
speculation.
III. Prosecutorial Misconduct
A. The prosecutor did not improperly question appellant
about the invocation of his right to remain silent
Appellant contends that the prosecutor committed
misconduct by asking him if he invoked his right to remain silent
under Miranda12 during his police interview. He argues the
error violated due process under Doyle v. Ohio (1976) 426 U.S.
610 (Doyle), was not harmless beyond a reasonable doubt, and
requires reversal. Viewing the cross-examination as a whole, we
find no Doyle violation in the prosecutor’s inquiry about
appellant’s interview with the police.13 (See People v. Collins
(2010) 49 Cal. 4th 175, 204 (Collins).)
1. Background
On cross-examination, defense counsel elicited testimony
from several law enforcement witnesses that appellant spoke
with them and was cooperative. On direct examination,
appellant testified that when he opened the door to the police he
said, “ ‘It’s great timing that you showed up.’ ” “ ‘Someone tried to
kill me. I almost died.’ ” Appellant told the police he was very
scared and had to protect and defend himself. He also testified
that later, when he spoke to detectives he was cooperative.
12 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
13For this reason, we also conclude the trial court properly
denied appellant’s mistrial motion and motion for a new trial.
32
On cross-examination, the prosecutor asked appellant if he
invoked his rights under Miranda when he spoke with the
detectives. Appellant said he did. The prosecutor then asked if
he requested to speak to a lawyer, and appellant responded, “Yes.
Yes. I remained silent, and I asked for an attorney.” The
prosecutor asked appellant if the detectives respected his request,
and appellant said yes. The prosecutor then asked if the
detectives asked him any questions after that, and appellant said
no. When the prosecutor next inquired if appellant just kept
talking on his own, defense counsel said, “Your Honor, I’m going
to object to the testimony regarding the Miranda.” The trial
court overruled the objection, and appellant answered that he did
not recall.
The prosecutor asked appellant if he ever told the police he
was sorry that his in-laws died, and appellant responded, “I
didn’t say that.” Next, the prosecutor inquired whether appellant
requested to talk with his children or asked the police to check on
them. Appellant said no. Appellant also stated he never
requested to talk to his wife. Finally, the prosecutor asked
appellant if he ever said there was an accidental shooting.
Appellant answered, “I didn’t say that.”
On redirect examination, defense counsel inquired whether
the detectives ever asked appellant if he was sorry about what
had happened or if he thought this was a tragedy. Appellant
responded, “No, they never asked me this question.” Counsel
then asked, “There are many things that you were never asked by
any police officers; correct?” Appellant answered, “The police
officers didn’t ask me too many things.”
33
2. The prosecutor’s inquiry about appellant’s invocation of
his Miranda rights did not violate due process
In Doyle, the United States Supreme Court held that “the
use against defendant of a postarrest invocation of rights
following a Miranda admonition violates due process.” (People v.
Thomas (2012) 54 Cal. 4th 908, 936, citing Doyle, supra, 426 U.S.
at p. 619; Collins, supra, 49 Cal.4th at p. 203.) The rationale for
the rule is that “ ‘it is fundamentally unfair, and a deprivation of
due process, to promise an arrested person that his silence will
not be used against him, and then to breach that promise by
using silence to impeach his trial testimony.’ ” (People v. Clark
(2011) 52 Cal. 4th 856, 959.) “But this does not mean that it
always is error to permit evidence that a defendant exercised his
right to counsel.” (People v. Huggins (2006) 38 Cal. 4th 175, 198.)
Indeed, no Doyle violation occurs when the prosecutor’s cross-
examination does “ ‘ “not invite the jury to draw any adverse
inference from either the fact or the timing of defendant’s
exercise of his constitutional right.” ’ ” (Thomas, at p. 936.)
Thus, a prosecutor may refer to the defendant’s postarrest silence
in fair response to an exculpatory claim or in fair comment on the
evidence without violating the defendant’s due process rights.
(People v. Champion (2005) 134 Cal. App. 4th 1440, 1448
(Champion); see also Anderson v. Charles (1980) 447 U.S. 404,
408 (Anderson) [Doyle does not apply where prosecutor’s
“questions were not designed to draw meaning from silence, but
to elicit an explanation for a prior inconsistent statement”].)
Here, the prosecutor’s questions sought to expose the
inconsistencies between appellant’s trial testimony and the
information he had given to the police as well as correct the false
impression that appellant had related the entire substance of his
34
testimony to police. Appellant testified that he spoke to
detectives and was cooperative, and he volunteered to police that
“someone tried to kill [him],” forcing him to protect and defend
himself. But appellant never mentioned to police that there had
been an accidental shooting, nor did he tell officers he thought his
in-laws’ deaths were tragic or unfortunate, much less express any
regret about the killings.
Appellant was not entitled to leave the jury with the
impression he had been completely forthcoming with police, and
that any omissions were due to the fact that the police had simply
not asked “too many things.” “ ‘Doyle’s protection of the right to
remain silent is a “shield,” not a “sword” that can be used to “cut
off the prosecution’s ‘fair response’ to the evidence or argument of
the defendant.” [Citation.] Questions or argument suggesting
that the defendant did not have a fair opportunity to explain his
innocence can open the door to evidence and comment on his
silence.’ ” (Champion, supra, 134 Cal.App.4th at p. 1448; People
v. Delgado (2010) 181 Cal. App. 4th 839, 853.)
Because we find the prosecutor’s questions were not
“designed to draw meaning from [appellant’s] silence” (Anderson,
supra, 447 U.S. at p. 409), we conclude that “[t]he prosecutor was
not taking unfair advantage of defendant’s exercise of his right to
remain silent as substantive evidence that he had a guilty
conscience or was hiding something.” (Champion, supra, 134
Cal.App.4th at pp. 1450–1451.)
35
B. The prosecutor did not misstate the law or lower the
People’s burden of proving the element of
premeditation and deliberation for first degree
murder
Appellant contends the prosecutor committed prejudicial
misconduct14 during closing argument by misstating the law of
premeditation and deliberation, thereby violating appellant’s
federal constitutional right to due process.15
1. Background
In closing argument, the district attorney told the jury, “So
one thing that I can explain to you is this: Premeditation and
deliberation is actually something you do every day⎯maybe not
every day. Maybe once a week in Los Angeles, but it is
something you engage in.” The prosecutor went on to illustrate
the elements of premeditation and deliberation by analogizing
them to a driver’s decision-making process in choosing whether to
drive through a yellow traffic light or stop suddenly. The
prosecutor explained, “You have a decision to make, ‘do I step on
the accelerator and fly through this intersection because I can’t
14 As our Supreme Court has observed, “ ‘[T]he term
prosecutorial “misconduct” is somewhat of a misnomer to the
extent that it suggests a prosecutor must act with a culpable
state of mind. A more apt description of the transgression is
prosecutorial error.’ ” (People v. Centeno (2014) 60 Cal. 4th 659,
666–667 (Centeno).)
15 Appellant further asserts that counsel was ineffective for
failing to object to the prosecutor’s argument. Because we
conclude the prosecutor’s explanation of the concepts of
premeditation and deliberation did not constitute prejudicial
error, we do not address appellant’s ineffective assistance claim.
36
wait, or do I slam on my brakes and stop?’ You have to decide,
and when you’re making that decision⎯do I go or do I
stop⎯you’re evaluating things. ‘If I go, are there pedestrians? Is
there a cop around? Am I going to get a ticket? Is there a car
that’s going to pull out in front of me and cause an accident? If I
slam on my brakes, am I going to end up in the middle of the
intersection, or do I have enough space to stop? Am I going to be
okay?’ [¶] You may not verbally say this to yourself. That’s
crazy. No one is going to be driving going, ‘Okay. Should I stop?
Should I not? I don’t know. Let’s think.’ No. This happens so
quickly. It happens so quickly, but in your mind, you quickly
evaluate those things, and you decide and you act. That is
premeditation and deliberation. It can happen that fast. You
just have to consider the consequences. You just have to weigh
the pros and cons, things for and against it, and decide to act.
That’s what premeditation and deliberation . . . is.”
2. Legal principles
“Under California law, to establish reversible prosecutorial
misconduct a defendant must show that the prosecutor used
‘ “deceptive or reprehensible methods” ’ and that it is reasonably
probable that, without such misconduct, an outcome more
favorable to the defendant would have resulted. [Citation.] A
prosecutor’s misconduct violates the federal Constitution if the
behavior is ‘ “ ‘ “ ‘ “ ‘so egregious that it infects the trial with such
unfairness as to make the conviction a denial of due
process.’ ” ’ ” ’ ” ’ ” (People v. Caro (2019) 7 Cal. 5th 463, 510.) A
prosecutor has wide latitude during closing argument to make
assertions of common knowledge or use illustrations based on
common experience. (People v. Ward (2005) 36 Cal. 4th 186, 215;
People v. Loker (2008) 44 Cal. 4th 691, 742.) But in relating the
37
jury’s task to a more common experience, the prosecutor “must
not imply that the task is less rigorous than the law requires.”
(Centeno, supra, 60 Cal.4th at p. 671.)
“When attacking the prosecutor’s remarks to the jury, the
defendant must show that, ‘[i]n the context of the whole
argument and the instructions’ [citation], there was ‘a reasonable
likelihood the jury understood or applied the complained-of
comments in an improper or erroneous manner. [Citations.] In
conducting this inquiry, we “do not lightly infer” that the jury
drew the most damaging rather than the least damaging
meaning from the prosecutor's statements.’ ” (Centeno, supra, 60
Cal.4th at p. 667; People v. Bell (2019) 7 Cal. 5th 70, 111 (Bell).)
3. Analysis
Viewed in the context of the prosecutor’s whole argument,
the yellow light analogy was not improper. Consistent with the
law, the prosecutor used the traffic light illustration to explain
the concept of premeditation and deliberation as a weighing of
options that can happen very quickly. (CALJIC No. 8.20
[“ ‘deliberate’ . . . means formed or arrived at or determined upon
as a result of careful thought and weighing of considerations for
and against the proposed course of action”]; People v. Pearson
(2013) 56 Cal. 4th 393, 440.) The illustration was consistent with
the law. As the jury was instructed, “[T]he law does not
undertake to measure in units of time the length of the period
during which the thought must be pondered before it can ripen
into an intent to kill which is truly deliberate and premeditated.
The time will vary with different individuals and under varying
circumstances. The true test is not the duration of time, but
rather the extent of the reflection. A cold, calculated judgment
and decision may be arrived at in a short period of time, but a
38
mere unconsidered and rash impulse, even though it includes an
intent to kill, is not deliberation and premeditation as will fix an
unlawful killing as murder of the first degree. [¶] To constitute a
deliberate and premeditated killing, the slayer must weigh and
consider the question of killing and the reasons for and against
such a choice, and having in mind the consequences, he decides to
and does kill.” (CALJIC No. 8.20; People v. Potts (2019) 6 Cal. 5th
1012, 1027.)
In People v. Avila (2009) 46 Cal. 4th 680, 715 (Avila), our
Supreme Court rejected the defendant’s assertion that the
prosecutor had equated “ ‘the “cold, calculated” judgment of
murder [with] deciding whether to stop at a yellow light or
proceed through the intersection.’ ” Rather, the court upheld the
prosecutor’s argument that “assessing one’s distance from a
traffic light, and the location of surrounding vehicles, when it
appears the light will soon turn yellow and then red, and then
determining based on this information whether to proceed
through the intersection when the light does turn yellow, as an
example of a ‘quick judgment’ that is nonetheless ‘cold’ and
‘calculated.’ ” (Ibid.)
Pointing to the prosecutor’s statement in Avila that “the
decision to kill is similar, but . . . not . . . in any way . . . the same”
as deciding to drive through a traffic light (Avila, supra, 46
Cal.4th at p. 715), appellant asserts that the prosecutor here
“explicitly argue[d] that the premeditation and deliberation
required to drive through a yellow light is the equivalent of the
premeditation and deliberation required for first-degree murder.”
Not so. In the context of the argument it is apparent that the
prosecutor did not equate the gravity of a decision to kill with a
traffic decision, but used the illustration to show that, like a
39
decision to drive through a yellow light, a premeditated and
deliberate decision to kill could be made very quickly. Indeed,
after using the traffic light analogy, the prosecutor reviewed the
many conscious decisions appellant had to make before the
shootings occurred. (“ ‘Which [gun] am I going to pick?’ ” “Check
to see if [the gun is] loaded.” “[L]oad a bullet into the chamber.”)
“Time to reflect. Time to consider. Time to think. . . . All this has
to happen before he ever pulls the trigger, and then he has to
decide where to aim and point. Every one of these things he
decided before he ever took a shot. This is premeditation and
deliberation. This is considering and weighing and making
decisions.”
Given the prosecutor’s reliance on the language of the
specific jury instruction on premeditation and deliberation to
emphasize the amount of reflection necessary before these
shootings, we find no reasonable likelihood the jury construed the
traffic light illustration in an improper or erroneous manner.
(People v. Harrison (2005) 35 Cal. 4th 208, 244 [“When the issue
‘focuses on comments made by the prosecutor before the jury, the
question is whether there is a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an
objectionable fashion’ ”]; see also Bell, supra, 7 Cal.5th at p. 111.)
IV. Defense Counsel’s Failure to Call Appellant’s
Middle Child to Testify at Trial Appears to
Have Been a Rational Tactical Choice and Does
Not Demonstrate Ineffective Assistance of
Counsel
Appellant contends trial counsel was ineffective for failing
to call appellant’s middle child to testify because the child’s
testimony would have been consistent with appellant’s testimony
40
about the incident. However, the record does not affirmatively
disclose there could have been no rational tactical purpose for not
calling the child as a witness. Appellant thus fails to
demonstrate ineffective assistance of counsel.
A. Background
Appellant’s nine-year old daughter and his seven-year old
son (appellant’s middle child) testified at the preliminary hearing
for the prosecution. The middle child testified that before the
shootings he and his sister were downstairs on the computer and
his little brother was upstairs with his grandparents. Appellant
went upstairs and spoke with the grandparents in Chinese. Soon
appellant and the grandparents started yelling at each other.
The middle child could understand Chinese, but could only
remember hearing appellant say he was going to call the police.
Then the middle child heard gun sounds, and he and his sister
went into the downstairs bathroom because they were afraid. At
this point the little brother came downstairs and joined his sister
and brother in the bathroom. The little brother had blood on his
clothes.
The middle child left the bathroom and went halfway up
the stairs to see what was happening. He saw his grandmother
on her knees with appellant standing over her, “Super close,”
yelling at her. The grandmother was crying and pleading,
“Please don’t call the police.” The boy heard his grandfather
yelling at appellant, but he could not see him. The middle child
then returned to the bathroom, and heard more “boom boom.”
Appellant did not come downstairs until the police arrived.
The middle child testified that he had forgotten some of the
things that occurred that night “because it happened a long time
41
ago.” When asked to look around the courtroom to see if he saw
his dad, the child said, “I don’t want to.”
In argument before trial about the admissibility of evidence
of prior domestic violence, defense counsel vigorously opposed
admission of any evidence that the father may have physically
disciplined the children or was “rough with them.” Counsel
declared, “[A]ny testimony of that from these very young children
would be extremely prejudicial. Just based, honestly, on their
appearance.”
Finally, a letter from the middle child read into the record
at appellant’s sentencing stated that while Li was at work, his
father showed him material on the computer that scared him and
appellant forced the middle child to play violent gun games on
the computer by threatening to “throw [him] into the patio at
night and lock the door.” The boy stated that appellant “did
really bad things” at night, making him scared of going to the
bathroom or upstairs by himself. The letter concluded, “I really
don’t want him to come out forever. He still gives me the creeps
at night.”
B. Legal principles
“ ‘In assessing claims of ineffective assistance of trial
counsel, we consider whether counsel’s representation fell below
an objective standard of reasonableness under prevailing
professional norms and whether the defendant suffered prejudice
to a reasonable probability, that is, a probability sufficient to
undermine confidence in the outcome. [Citations.] A reviewing
court will indulge in a presumption that counsel’s performance
fell within the wide range of professional competence and that
counsel’s actions and inactions can be explained as a matter of
sound trial strategy. Defendant thus bears the burden of
42
establishing constitutionally inadequate assistance of counsel.
[Citations.] If the record on appeal sheds no light on why counsel
acted or failed to act in the manner challenged, an appellate
claim of ineffective assistance of counsel must be rejected unless
counsel was asked for an explanation and failed to provide one, or
there simply could be no satisfactory explanation.’ ” (People v.
Gamache (2010) 48 Cal. 4th 347, 391, quoting People v. Carter
(2003) 30 Cal. 4th 1166, 1211; People v. Brown (2014) 59 Cal. 4th
86, 109.)
C. Analysis
Appellant asserts that there could be no rational tactical
purpose for defense counsel’s failure to call appellant’s middle
child to testify because the boy was the only witness who was
able to corroborate part of appellant’s testimony. However, the
record does not affirmatively reveal the lack of a rational tactical
purpose for not calling the child as a witness. To the contrary,
because the decision not to have the middle child testify appears
to be the result of a sound strategy, we must reject appellant’s
claim.
Even if the middle child gave the same testimony as he did
at the preliminary hearing a year earlier, that testimony would
only corroborate appellant’s testimony that he argued with Zhang
and Diao, he threatened to call the police on his in-laws, and
Zhang got on her knees and begged him not to. The testimony
would have had minimal probative value: It would not have
corroborated appellant’s claim that Diao threatened him with a
meat cleaver, much less that appellant’s in-laws threatened or
committed any violence against him at all. Indeed, the boy’s
testimony would have had no bearing whatsoever on appellant’s
43
claims of self-defense or that he lacked the requisite mental state
for first degree murder.
On the other hand, the middle child’s testimony had the
serious potential to undermine appellant’s credibility since it
conflicted with appellant’s testimony that his threat to call the
police and Zhang’s pleading with him not to call occurred before
he spent up to an hour in his bedroom before a single shot was
fired. Given this potential for prejudice, defense counsel’s
decision not to call the middle child to testify appears to be the
result of a sound tactical strategy which we will not second-guess.
(People v. Mitcham (1992) 1 Cal. 4th 1027, 1059 [“decisions
whether to waive opening statement and whether to put on
witnesses are matters of trial tactics and strategy which a
reviewing court generally may not second-guess”]; People v.
Carter (2005) 36 Cal. 4th 1114, 1189.)
V. There Was No Cumulative Error
Appellant contends his conviction should be reversed
because of the cumulative effect of the errors identified in his
opening brief. (Taylor v. Kentucky (1978) 436 U.S. 478, 488,
fn. 15.) But we have found no errors that individually or
collectively deprived appellant of a fair trial. (Avila, supra, 46
Cal.4th at p. 718; People v. Halvorsen (2007) 42 Cal. 4th 379, 422.)
VI. Remand for Resentencing Is Unwarranted
Appellant contends his case must be remanded to allow the
trial court to exercise its discretion as to whether to impose a
lesser firearm enhancement—10 or 20 years under section
12022.53, subdivisions (b) or (c), instead of 25 years to life under
section 12022.53, subdivision (d). We disagree.
As to both counts, appellant was charged with three
firearm enhancements: personal use of a firearm (§ 12022.53,
44
subd. (b)), personal and intentional discharge of a firearm
(§ 12022.53, subd. (c)), and personal and intentional discharge of
a firearm causing death (§12022.53, subd. (d)). The jury found all
three firearm enhancement allegations true as to both counts. At
sentencing, the trial court specifically addressed its discretion
with regard to the firearm enhancements:
“All right. 12022.53(h) specifically gives the Court [the]
power to strike a [sic] gun enhancement allegations. People
versus Gutierrez requires that I give you a clear—give them a
clear indication that I would or would not strike the gun
allegations. In this particular case, the clear indication is not
only not, it is a categorical refusal to strike the gun allegations.
12022.53(d), (c), and (b). We’ll deal with the (c) and (b) counts in
just a moment.”
The court sentenced appellant to a term of life without the
possibility of parole on each count of murder, and added a
sentence of 25 years to life for each of the section 12022.53,
subdivision (d) findings. The court ordered the section 12022.53,
subdivisions (b) and (c) enhancements stayed as to each count.
The court then declared, “And again, the Court refuses to strike
the 12022.53(d) allegation.”
Relying on People v. Morrison (2019) 34 Cal. App. 5th 217
(Morrison), appellant asserts that, because at the time of
sentencing in this case, “no published decision had held that a
court could strike the greater firearm enhancement and impose
the lesser one, this matter should be remanded for the court to
exercise its discretion.” (See id. at p. 224 [“At the time of
resentencing, no published case had held an uncharged lesser
firearm enhancement could be imposed in lieu of an enhancement
45
under section 12022.53, subdivision (d) in connection with
striking the greater enhancement”].)
Appellant, however, misstates the Morrison holding and
thereby overlooks a critical distinction between Morrison and the
instant case. Morrison began its analysis by observing that
“[c]ase law has recognized that the court may impose a ‘lesser
included’ enhancement that was not charged in the information
when a greater enhancement found true by the trier of fact is
either legally inapplicable or unsupported by sufficient evidence.”
(Morrison, supra, 34 Cal.App.5th at p. 222.) The court then
reasoned that because a court could impose an uncharged section
12022.53, subdivision (b) or (c) enhancement in place of an
enhancement under section 12022.53, subdivision (d) that was
unsupported by substantial evidence, defective, or legally
inapplicable in some other respect, “[w]e see no reason a court
could not also impose one of these enhancements after striking an
enhancement under section 12022.53, subdivision (d), under
section 1385.” (Id. at pp. 222–223.) Morrison concluded that
remand was necessary because the record did not reveal whether
the trial court had understood its discretion to impose a lesser
uncharged enhancement under section 12022.53, subdivision (b)
or (c) if it were to strike the subdivision (d) enhancement. (Id. at
p. 224.)
By contrast, in this case the lesser enhancements under
section 12022.53, subdivisions (b) and (c) were charged and were
also found true by the jury. Moreover, the trial court expressly
chose to impose the greater enhancement while staying the lesser
ones. Because “we presume that the trial court knew and applied
the governing law” in the absence of any evidence to the contrary
(People v. Gutierrez (2014) 58 Cal. 4th 1354, 1390), we must
46
conclude that the trial court was aware that striking the
enhancement under section 12022.53, subdivision (d) “would
leave intact the remaining findings, and an enhancement under
the greatest of those provisions would be mandatory unless those
findings were also stricken in the interests of justice” (Morrison,
supra, 34 Cal.App.5th at p. 222). Accordingly, a remand for
resentencing on the firearm enhancements is unwarranted in
this case.
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
47