People v. Kim CA4/3 ( 2014 )

Filed 2/21/14 P. v. Kim CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G046932
v. (Super. Ct. No. 04WF0953)
STEPHENSON CHOI KIM, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
John Conley, Judge. Affirmed.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and
Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
Defendant Stephenson Choi Kim entered the Fifth Wave Café in Cypress,
believing a group of rival gang members was seated at a table in the back of the café.
Defendant opened fire, killing one victim and injuring four others. Defendant was
charged with and convicted of one count of murder, six counts of attempted murder, and
one count of street terrorism. The jury found true the special circumstances allegations
and the sentencing enhancement allegations for firearm discharge and gang-related
activity. Defendant raises several challenges to his conviction and his sentence. We
reject each of defendant’s challenges and affirm the judgment.
First, defendant argues the trial court erroneously denied a motion to
suppress evidence seized from defendant’s computer. We conclude there was probable
cause to issue the search warrant for defendant’s computer, and the trial court did not err
in denying defendant’s motion.
Second, defendant argues the trial court violated his constitutional right to
present a defense by excluding the videotaped statement of one of the attempted murder
victims, in which the victim identified someone else as the likely shooter. The excluded
statement was hearsay and did not have sufficient indicia of reliability to justify its
admission. The trial court’s application of the rules of evidence did not improperly
deprive defendant of his right to present a defense.
Third, although the trial court erred in instructing the jury with the “kill
zone” theory of liability for attempted murder, the error was harmless. There was
sufficient evidence to support defendant’s convictions for attempted murder based on the
standard instruction for that crime, with which the jury was also instructed.
Fourth, there was sufficient evidence to support defendant’s convictions for
the attempted murders of those persons who were not struck by a bullet.
2
Fifth, we decline to order that the restitution order be modified to reflect
that defendant’s liability is joint and several. Our decision is without prejudice to
defendant filing a motion in the trial court to modify the restitution order.
Finally, we decline to strike the parole revocation restitution fine imposed
by the trial court. Although there may be virtually no chance that defendant will ever be
paroled, a determinate sentence was imposed and not stayed, and the imposition of the
parole revocation fine was therefore mandatory.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On March 13, 2004, defendant, Ashil Nair, Glenn Watkins, Christopher
Ung, Robin Kim, Chakris Kanchanapoomi, and Wilson Sun met at Johnny Tran’s house,
with a plan to go “gangbanging”; all but Robin Kim were members of the Satanas
criminal street gang.1 The group left in several different vehicles: Defendant drove his
Toyota Tundra truck, with Robin Kim and Jessica Kwan (defendant’s girlfriend) as
passengers; Sun drove Nair’s green Ford Explorer, with Ung, Watkins, and Nair as
passengers; Tran and Kanchanapoomi were in a white Honda Civic driven by and
belonging to Maurice, a cousin of a Satanas gang member; and Cindi Minh was driving a
black Honda Accord.
Robin Kim had a .45-caliber gun and a submachine gun with him. The
caravan of vehicles eventually ended up at the Fifth Wave Café in Cypress.
Nair and Watkins, who were both armed, walked into the café, looking for
rival gang members. Venus Hyun, Jean Lee, Michael Paek, John Chung, Ronald
Woodhead, Richard Woodhead, and Kung John Yoo were seated together at a table in the
back of the café.2 Nair and Watkins approached the group, and Nair asked where they
1
After being arrested in connection with this case, Robin Kim was “jumped into”
the gang while in custody.
2
We will refer to Richard Woodhead and Ronald Woodhead by their first names
to avoid confusion; we intend no disrespect.
3
were from or what gang they claimed. Either Richard or Ronald told Nair they did not
want to fight, and they were just there to have a good time; he also said they did not
gangbang.
Nair continued to aggressively ask the group where they were from. Nair
also said, “fuck Sarzana. We’re STS.” Eventually, Richard said, “FMS,” which stands
for Family Mob gang; when he was younger he had been associated with the Family Mob
gang, but he no longer had any ties to the gang.
Nair and Watkins left the café through the front door. Nair went to
defendant’s truck and told him there were “some fools from FMS” inside the café.
Defendant got out of his truck, and put on a black baseball cap belonging to Sun.
Defendant asked Robin Kim for his gun; Robin Kim gave the .45-caliber gun to
defendant who “racked” a round into it. Nair told defendant the FMS gang members
were at a table in the back corner of the café.
Defendant walked into the café, pointed the gun at the group at the table,
and fired several shots. Defendant then walked out of the back door. Ronald went after
defendant; defendant shot him in the stomach. Robin Kim, who was by then driving
defendant’s truck, picked defendant up, and all the vehicles drove back to Tran’s house.
At Tran’s house, defendant told the others he had walked up to a table at
the café and fired a few rounds. Defendant also said that as he was leaving the café,
someone grabbed him from behind; defendant shot that person and ran out the back door.
Defendant told the others he had dropped the black cap he had been wearing. Defendant
took Robin Kim’s gun, got in his own truck, and left.
Hyun, a 21-year-old woman, had been shot in the back. She bled to death
as a result of gunshot wounds to the lung and brain, when the bullet ricocheted off a rib
and entered her skull cavity. Lee had been shot in the back. Paek was shot in the right
hand. Chung was shot in the arm. Ronald was shot in the abdomen; although he
4
recovered from his injuries, he died of unrelated causes before trial. Richard and Yoo
were not hit.
Crime scene investigators recovered four cartridge casings inside the café,
and two more in the alley just outside the café’s back door; four bullets or fragments were
recovered from the scene, and one bullet was recovered from Hyun’s body. The casings
were Winchester .45-caliber automatic ammunition. A black cap found in the alley tested
positive for Sun’s DNA; defendant was eliminated as a contributor of DNA on the cap.
Seho Park, a waiter at the café, was interviewed by the police after the
shooting. Park saw two men enter the café, and proceed toward a table in the back; he
“didn’t have a good feeling about it.” From a photographic lineup, Park identified Nair
as one of the two men who entered the café. Park told police investigators that after the
two men left, a third man entered, walked straight to the back table, removed a gun from
his pocket, and started shooting.3 Park heard between five and seven shots. As the
shooter was leaving the café, one of the victims pushed him. Park described the shooter
as an Asian male about five feet, eight inches tall, with a husky build, wearing a black
baseball cap and a dark gray jacket, with both hands in the front pockets of the jacket.
Park identified defendant as the shooter from a photographic lineup. Three
days later, Park was unable to identify defendant’s picture from a different six-pack
photographic lineup. At trial, Park testified that although defendant’s picture most
closely resembled the shooter, he could not positively identify defendant as the shooter.
Before testifying, Park saw a newspaper article about the shooting with defendant’s
picture; Park thought the person in the picture looked like the shooter.
Lee was unable to identify anyone from a six-pack photographic lineup. At
trial, Lee testified Nair looked most like the individual who initially approached the table,
but could not identify defendant as the shooter. Richard and Paek were not able to
3
At trial, Park recanted his statements about having seen the shooting.
5
identify anyone from a photographic lineup. Chung identified Nair as one of the two men
who initially approached the group before the shooting.
The day after the shooting, when defendant learned Hyun had died, he
expressed remorse. About a week later, defendant met with Robin Kim and Nair.
Defendant told Nair not to say anything to anyone about the shooting, and threatened to
kill him if he did; Nair believed that defendant was serious. Defendant also said he
wanted to keep Robin Kim’s gun and would get rid of it.
Defendant was arrested several months later. While he was being booked
into custody, defendant asked if “this was about the murder.” Robin Kim, Ung,
Kanchanapoomi, Nair, Watkins, and Sun were all arrested; all entered proffer agreements
with the prosecution, and all testified against defendant at trial. While in a holding cell at
the preliminary hearing, defendant told Robin Kim he threw the gun off the Huntington
Beach Pier so it would not be found by the police.
While in custody, defendant told Sun, “don’t snitch.” Also, while in
custody, defendant passed a “kite” to Watkins, reading: “What’s up, little homie. A
dogg, I know you talked 2 the cops and told ’em everything. I already know, homie. I’m
telling you we have a good chance of fighting this case. They can’t use your confession
in trial. They can only use it on the preliminary hearing. And trial you’ll have to testify.
But you don’t wanna do that. If you testify, you know what’s up. [¶] Homie, we have to
stick together on this. Don’t let the D.A. scare you. If you take a deal, you’re going to
do time for sure. Plus they’ll stick you with more cases and you’ll become a snitch.
That’s not the way to do shit. If we fight this case, we can beat it. [¶] All the evidence
they have is the homies pointing fingers. But if we stop that and come together, they
won’t have shit or any evidence. I’m making sure the victims don’t testify, so don’t
worry. [¶] Just listen to me. I know what’s up. If I go down, all of you go down. Just
don’t get weak. I know it’s scary but don’t make this case harder. And if we lose, we
can appeal. If you plea bargain, you can never appeal. Just listen to me.”
6
Defendant was charged with one count of first degree murder (count 1).
(Pen. Code, § 187, subd. (a).) The information alleged as a special circumstance that
defendant intentionally killed Hyun while an active participant in a criminal street gang,
to further the activities of the gang. (Id., § 190.2, subd. (a)(22).) Defendant was also
charged with six counts of premeditated attempted murder (counts 2 through 7) (id.,
§§ 187, subd. (a), 664, subd. (a)), and one count of street terrorism (count 8) (id.,
§ 186.22, subd. (a)). The information alleged that defendant personally discharged a
firearm causing great bodily injury (counts 2 through 5) or death (count 1). (Id.,
§ 12022.53, subd. (d).) With respect to counts 6 and 7, the information alleged that
defendant personally and intentionally discharged a firearm. (Id., § 12022.53, subd. (c).)
The information also alleged that, with respect to counts 1 through 7, defendant
committed the crimes for the benefit of, at the direction of, or in association with a
criminal street gang. (Id., § 186.22, subd. (b).)
A jury found defendant guilty of all charges, and found true all special
circumstance enhancement and sentencing enhancement allegations. In the penalty phase
of the trial, the jury deadlocked on a death sentence, and the prosecution elected not to
proceed with a second penalty trial.
Defendant was sentenced to a total term of life without the possibility of
parole, plus 215 years to life, as well as a 40-year determinate sentence. The trial court
sentenced defendant to life without the possibility of parole for count 1, plus consecutive
terms of 15 years to life with the possibility of parole for each of counts 2 through 7, plus
consecutive terms of 25 years to life for each of the firearm enhancements attendant to
counts 1 through 5, plus consecutive determinate terms of 20 years for each of the firearm
enhancements attendant to counts 6 and 7. Pursuant to Penal Code section 654, the trial
court stayed execution of sentence on count 8.
7
DISCUSSION
I.
SEIZURE OF EVIDENCE FROM DEFENDANT’S COMPUTER
Before trial, defendant’s counsel filed a motion to suppress evidence
obtained from defendant’s computer, pursuant to a search warrant, on the grounds the
search warrant was not supported by probable cause. The trial court denied the motion.4
The evidence from defendant’s computer, which the prosecution offered at
trial, consisted of one letter to Nair (who was in custody at the time),5 several letters that
appeared to be suicide notes,6 and one letter in which defendant confessed to committing
the shooting.7 Also, the prosecution offered evidence discovered during a forensic
4
The Attorney General argues on appeal that the good faith exception to the
exclusionary rule applies. Therefore, she argues, even if the search warrant was invalid
for lack of probable cause, the evidence seized from defendant’s computer was still
admissible. “[E]vidence obtained pursuant to a facially valid search warrant
subsequently determined to be invalid is admissible if the officers executed the search in
objectively reasonable reliance upon the validity of a search warrant issued by a neutral
magistrate.” (People v. Bradford (1997) 15 Cal. 4th 1229, 1291; see United States v.
Leon (1984) 468 U.S. 897, 922-923.) This issue was forfeited because it was not raised
in the trial court in opposition to the motion to suppress. (People v. Evans (2011) 200
Cal. App. 4th 735, 755-756 [inevitable discovery doctrine could not be raised by the
Attorney General for the first time on appeal to argue in favor of the trial court’s denial of
the defendant’s motion to suppress evidence]; see U.S. v. Nicholson (10th Cir. 2013) 721
F.3d 1236, 1246 [appellate court would not consider government’s good faith exception
argument because that argument was raised for the first time on appeal of the order
denying the motion to suppress].)
5
In the letter to Nair, defendant apologized to him for his being in jail, and told
him to “stay strong” for the rest of the gang. Defendant told Nair the case against him
was weak, and to “make sure you don’t talk to the cops, and don’t say anything that will
make ur [sic] case or anyone elses case weak, or messed up.” Defendant also told Nair
not to say anything to anyone or it would “mess up everything.”
6
In one apparent suicide note, defendant told his friends and “homies” how much
they meant to him, and to change their ways, and apologized for what he had done.
7
The confession letter reads as follows: “To the pigs & media: [¶] First of all to
the pigs, if youre reading this, I’m already dead, so go screw yourself. But I’m writing
8
analysis of defendant’s computer, including Web page searches for “Venus Hyun,” and a
document that appeared to be an article, regarding Hyun’s murder, from the Los Angeles
Times.
“The question facing a reviewing court asked to determine whether
probable cause supported the issuance of the warrant is whether the magistrate had a
substantial basis for concluding a fair probability existed that a search would uncover
wrongdoing. [Citations.] ‘The task of the issuing magistrate is simply to make a
practical, commonsense decision whether, given all the circumstances set forth in the
affidavit before him, including the “veracity” and “basis of knowledge” of persons
supplying hearsay information, there is a fair probability that contraband or evidence of a
this to justify some things. You have Wilson Sun, Chakris, and Asheld Nair locked up
for the murder of Venus Hyun. You have the wrong people locked up. I was the sole
person involved in this, and you have my jacket to run gunpowder residue and my own
DNA Im sure you can match up with the black cap you found at the scene outside the
door of the 5th Wave Cafe. I will give you enough details of that night that only I know
and that only—and that you can reference with the witnesses that night, so you know its
me and Im not just trying to get my friends out of jail through my own escape. The gun
used was a Colt 0.45 full size 1911, you wont find the gun because its swimming
somewhere off the pier of Huntington Beach. The bullets were copper slugs. The table
where Venus was sitting was the last table near the side door. I walked in the front door,
was confronted by a waiter, that said they dont want trouble (he spoke Korean) I walked
passed him and saw the table where they were sitting and unloaded about 5 rounds.
Some guy I think a waiter grabbed me and went through the side door, thats when I shot
him in the side (I think it was his left side). Thats where I dropped the cap, and then
jumped in my truck and left the scene. So now you know how it happened. Now for the
reason: You say they’re not affiliated, do some homework, they’re from FMS (Family
Mobsters). Ive had personal shit with them for over a year now. Wilson, Chakris, and
Ashild had no idea or knowledge of what I was going to do. When I heard FMS was
inside, I just grabbed my gun and went inside, the homies didn’t need to know, because it
wasnt there beef, it was my personal beef. Venus wasnt my target, what happened to
Venus was just a mistake that I choose not to live with anymore. Im sorry for what
happened, and I lived every day until now trying to forget which I couldnt. To her family
all I can say is I am so sorry and I hope my death will bring you some peace. Im very
sorry. For the pigs: Since you have the wrong people locked up, do what should be done
and let them go, like I said they had no idea what I was thinking or planning on doing.”
(Errors in original.)
9
crime will be found in a particular place.’ [Citation.]” (People v. Kraft (2000) 23 Cal. 4th
978, 1040-1041, quoting Illinois v. Gates (1983) 462 U.S. 213, 238.)
The search warrant was based on an affidavit of district attorney
investigator Tim Day. As is relevant here, the statement of probable cause includes the
following: “During my career as a police officer, I have contacted hundreds of gang
members. During these contacts, I spoke with them about their gang activity, gang
crimes, other gangs, and gang members. During these contacts, I have spoken with gang
members about the methods and reasons for gang related crimes. I have spoken with
gang members about their lifestyle, culture, methods of operation, gang rivalries,
methods of supporting the gang, motive for criminal activity, and their loyalty to the
gang. [¶] Through my experience, I have learned that most street gang members are
known by street names or monikers to their fellow gang members. I have also learned
that gang members will frequently write their names, their monikers, or monikers of their
associates on walls, furniture, misc. items of paper, both within and on their residences,
and within/on vehicles they own or have been a passenger in. [¶] It has also been my
experience that most gang members keep photographs and photograph albums which
depict/contain pictures of fellow gang members who are posing and giving hand gang
signs which indicate gang activity or affiliation. These photographs will often depict
gang members or associates posing beside vehicles, which were used or involved in the
commission of crimes, and gang members or associates at locations, which are known to
be specific gang hangouts. [¶] I have also learned that gang members will also maintain
scrapbooks or keep newspaper articles, which describe crimes committed by the gang, or
crimes committed against their gang or individual members. Gang members have told
me that the gang is like their family, and that fellow gang members are like their brothers
and sisters. Their membership is an important part of who they are, and their lifestyle.
As a result, many gang members maintain address books, lists of, or single references to
other gang members. [¶] . . . [¶] Through my experiences I have learned that gang
10
members will also have computers. Gang members have been known to write to email or
write to each other and discuss crimes they have committed. They have also been known
to store information such as writing about their gangs, information about crimes they may
have committed, membership [rosters] and/or photographs. [¶] . . . [¶] . . . I am seeking a
search warrant for permission to search the personal computer belonging to Stephenson
KIM. Based on my past training and experience, I know that individuals tend to keep
personal information on their computers for storing information and photographs,
appointments, personal diar[ie]s, email communications and other communications. This
type of evidence may indicate whether KIM had any communication with other gang
members before and/or after the incident at the Fifth Wave Café; all of which is crucial to
a homicide investigation and is believed that information such as this will be found on
KIM’s computer.”
The affidavit in support of the search warrant also explained that the
original search warrant for defendant’s home, which was issued in September 2004 (at
the same time as a warrant for defendant’s arrest), asked that all computers and related
equipment be seized. However, due to an oversight, defendant’s computer was not seized
at that time. In April 2005, a letter addressed to defendant at the Orange County Central
Jail was intercepted. That letter explained that “Laura” or “L.B.” intended to sell
defendant’s computer on eBay “[t]his week.”
Additionally, the affidavit provided sufficient evidence connecting
defendant to the commission of the crimes in question: “In August of 2004 I was
assigned the task of trial preparation referenc[ing] a homicide that occurred in the city of
Cypress on 3/13/04. . . . As part of my assignment, I have read police reports written by
members of the Cypress Police Department regarding this homicide. I have also
interviewed the lead detective, Timothy RAND. . . . [¶] . . . [¶] During the course of his
investigation, Investigator RAND[] identified Stephenson Choi KIM, DOB: 9/02/98, as
the person who shot the persons inside the Fifth Wave Café on 3/13/04. On 9/29/04
11
Investigator RAND obtained an arrest warrant for KIM and a search warrant for his
home . . . .” Defendant did not argue in the motion to suppress, or in his appellate briefs,
that there was not probable cause supporting the arrest warrant, or that there was not
probable cause to connect him to the crimes in question; the issue has therefore been
conceded.
We conclude that the affidavit in support of the search warrant established
probable cause to seize and search defendant’s computer, and the trial court, therefore,
did not err in admitting into evidence the documents and other information found on that
computer. “The affidavit must establish a nexus between the criminal activities and the
place [or thing] to be searched. [Citation.] ‘The opinions of an experienced officer may
legitimately be considered by the magistrate in making the probable cause
determination.’ [Citation.] However, an affidavit based on mere suspicion or belief, or
stating a conclusion with no supporting facts, is wholly insufficient. [Citation.]” (People
v. Garcia (2003) 111 Cal. App. 4th 715, 721.)
The affidavit, here, established a nexus between defendant’s computer and
the gang-related crime committed at the Fifth Wave Café. Based on his own experience
with gang members and on communications with other peace officers, Day stated that
gang members keep scrapbooks and collect newspaper articles detailing their gang
crimes, keep photographs of themselves and other gang members, and write their gang
monikers on various items in their possession. Day further stated that gang members
maintain lists of other gang members and information relevant to their gang membership.
Finally, Day stated that gang members own computers and use those computers to send
e-mails to other gang members regarding details of their crimes and to store gang-related
information. That computers are ubiquitous in everyday life is hardly a matter that can
escape the knowledge of those issuing search warrants. Based on the sworn statements in
the affidavit, the judge who issued the search warrant had a substantial basis for
concluding a fair probability existed that the warrant for the seizure of defendant’s
12
computer would uncover evidence related to the Fifth Wave Café shooting. The need for
the immediate issuance of the warrant was amply established by the information that an
acquaintance of defendant’s was planning to sell the computer on eBay that week. The
affidavit was not based merely on suspicion or belief, nor did it contain only a conclusion
without any supporting facts.8
II.
REFUSAL TO INTRODUCE VIDEOTAPE EVIDENCE
Defendant argues his federal constitutional right to present a defense was
violated when the trial court refused to permit him to offer into evidence a videotape of
an interview of Ronald. A police detective videotaped an interview with Ronald on
April 15, 2004, about one month after the shooting and three weeks after Ronald was
released from the hospital. During the interview, Ronald was shown a six-pack
photographic lineup, and identified Sun’s photo as the person who looked most like the
shooter. Ronald also told the detective he saw the shooter run out the back door of the
café and toward a white Nissan Altima. On April 20, Ronald was again interviewed by
police detectives, and was shown a different six-pack photographic lineup. Ronald again
identified Sun’s photo, stating he was 90 percent sure Sun was the shooter. The trial
court denied defendant’s motion to introduce Ronald’s videotaped statements.
Defendant concedes that Ronald’s videotaped statements were hearsay, not
subject to any statutory exception. He argues, however, that his federal constitutional
right to present a defense was denied by the trial court’s refusal to admit Ronald’s
hearsay statements because those statements were “critical, reliable, and exculpatory
evidence.”
8
The Ninth Circuit Court of Appeals’s recent opinion in U.S. v. Underwood
(9th Cir. 2013) 725 F.3d 1076 does not change our analysis. The Ninth Circuit concluded
that a search warrant lacked probable cause because the affidavit “includes only two
facts, foundationless expert opinion, and conclusory allegations.” (Id. at p. 1082.)
13
“Few rights are more fundamental than that of an accused to present
witnesses in his own defense. [Citations.] In the exercise of this right, the accused, as is
required of the State, must comply with established rules of procedure and evidence
designed to assure both fairness and reliability in the ascertainment of guilt and
innocence. Although perhaps no rule of evidence has been more respected or more
frequently applied in jury trials than that applicable to the exclusion of hearsay,
exceptions tailored to allow the introduction of evidence which in fact is likely to be
trustworthy have long existed. The testimony rejected by the trial court here bore
persuasive assurances of trustworthiness and thus was well within the basic rationale of
the exception for declarations against interest. That testimony also was critical to [the
defendant’s] defense. In these circumstances, where constitutional rights directly
affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied
mechanistically to defeat the ends of justice.” (Chambers v. Mississippi (1973) 410 U.S.
284, 302 (Chambers).)
In Chambers, supra, 410 U.S. at page 285, the defendant was charged with
shooting and killing a police officer. Another man, Gable McDonald, initially confessed
to the shooting, but later repudiated his confession. (Id. at pp. 287-288.) The defendant
called McDonald as a witness in his defense, but was prevented from impeaching
McDonald with his earlier confession by Mississippi’s common law rule that a party may
not impeach his or her own witness. (Id. at pp. 295-296.) The trial court also denied the
defendant’s request to question three independent witnesses, who would have testified
that McDonald had confessed to the shooting on separate occasions soon after the crime,
because Mississippi law did not make declarations against one’s penal interest an
exception to the hearsay rule. (Id. at pp. 298-299.)
“The hearsay statements involved in this case were originally made and
subsequently offered at trial under circumstances that provided considerable assurance of
their reliability. First, each of [the hearsay declarant]’s confessions was made
14
spontaneously to a close acquaintance shortly after the murder had occurred. Second,
each one was corroborated by some other evidence in the case . . . . The sheer number of
independent confessions provided additional corroboration for each. Third, whatever
may be the parameters of the penal-interest rationale, each confession here was in a very
real sense self-incriminatory and unquestionably against interest. [Citations.] . . . Finally,
if there was any question about the truthfulness of the extrajudicial statements, [the
hearsay declarant] was present in the courtroom and was under oath. He could have been
cross-examined by the State, and his demeanor and responses weighed by the jury.”
(Chambers, supra, 410 U.S. at pp. 300-301, fn. omitted.)
The rule of Chambers does not require that Ronald’s statements be
admitted. “[T]he holding of Chambers—if one can be discerned from such a
fact-intensive case—is certainly not that a defendant is denied ‘a fair opportunity to
defend against the State’s accusations’ whenever ‘critical evidence’ favorable to him is
excluded.” (Montana v. Egelhoff (1996) 518 U.S. 37, 53.) When we consider the factors
analyzed by the Supreme Court in Chambers, we find no abuse of the trial court’s
discretion in determining there was not considerable assurance of the reliability of
Ronald’s statements. The statements were not made spontaneously or to a close
acquaintance, but rather to a police officer during an interview. Ronald’s accusation of
Sun was not corroborated by any other evidence in the case (and indeed was contrary to
defendant’s theory that Robin Kim was the shooter). Ronald’s statements were not
self-incriminatory or against his interest. Finally, Ronald was not subject to
cross-examination because he had died before trial. (Ronald died of causes unrelated to
the shooting. His statements were not dying declarations, and, therefore, were not made
admissible by Evidence Code section 1242.)
Many California cases have limited the holding of Chambers. “Exclusion
of the inadmissible hearsay at issue did not violate defendant’s constitutional rights. As
we recently explained, the United States Supreme Court has never suggested that states
15
are without power to formulate and apply reasonable foundational requirements for the
admission of evidence. [Citations.] Foundational prerequisites are fundamental, of
course, to any exception to the hearsay rule. [Citation.] Application of these ordinary
rules of evidence to the alleged drug-related components of the proffered testimony did
not impermissibly infringe on defendant’s right to present a defense. [Citation.]”
(People v. Morrison (2004) 34 Cal. 4th 698, 724-725.)
In People v. Ayala (2000) 23 Cal. 4th 225, 266, the defendant sought to
introduce at trial the hearsay statements of two people who had been interviewed by
investigators, but who had died before they could testify at trial. The statements of those
individuals would have been exculpatory. (Id. at pp. 267-268.) The appellate court
affirmed the trial court’s order denying the defendant’s motion to introduce the hearsay
statements. “There is . . . no proper exception to the hearsay rule that would have
permitted defendant to introduce [the two individuals’] statements. There are no indicia
of reliability surrounding those statements . . . .” (Id. at p. 269.)
As in People v. Ayala, there was no particularized guarantee of the
trustworthiness of Ronald’s statements, his statements were not against his interest, and
the statements were not spontaneous. (See People v. Ayala, supra, 23 Cal.4th at p. 270,
citing State v. Bunyan (1998) 154 N.J. 261, 271 [712 A.2d 1091, 1095-1096].)
Therefore, the trial court did not err in refusing to admit Ronald’s hearsay statements, or
to create a new exception to the hearsay rule to admit them.
III.
KILL ZONE THEORY OF LIABILITY
Defendant argues that the trial court erred by instructing the jury on a kill
zone theory of liability with regard to attempted murder.9 Unlike murder, the crime of
9
The jury was instructed with CALCRIM No. 600, which reads, in relevant part,
as follows: “A person may intend to kill a specific victim or victims and at the same time
intend to kill everyone in a particular zone of harm or ‘kill zone.’ [¶] In order to convict
16
attempted murder requires proof that the defendant had a specific intent to kill. (People
v. Lee (2003) 31 Cal. 4th 613, 623.) The intent to kill a specific person cannot be
transferred to another victim, who is not actually killed, to support a conviction for
attempted murder. (People v. Bland (2002) 28 Cal. 4th 313, 331.) A defendant can,
however, be convicted of the attempted murder of a victim who was not the defendant’s
intended target if the victim is within the area referred to as the kill zone: “[A] shooter
may be convicted of multiple counts of attempted murder on a ‘kill zone’ theory where
the evidence establishes that the shooter used lethal force designed and intended to kill
everyone in an area around the targeted victim . . . as the means of accomplishing the
killing of that victim. Under such circumstances, a rational jury could conclude beyond a
reasonable doubt that the shooter intended to kill not only his targeted victim, but also all
others he knew were in the zone of fatal harm.” (People v. Smith (2005) 37 Cal. 4th 733,
745-746.)
“The kill zone theory thus does not apply if the evidence shows only that
the defendant intended to kill a particular targeted individual but attacked that individual
in a manner that subjected other nearby individuals to a risk of fatal injury. Nor does the
kill zone theory apply if the evidence merely shows, in addition, that the defendant was
aware of the lethal risk to the nontargeted individuals and did not care whether they were
killed in the course of the attack on the targeted individual. Rather, the kill zone theory
applies only if the evidence shows that the defendant tried to kill the targeted individual
by killing everyone in the area in which the targeted individual was located. The
defendant in a kill zone case chooses to kill everyone in a particular area as a means of
the defendant of attempted murder of Jean Lee, Michael Paek, John Chung, Ronald
Woodhead, Richard Woodhead, and John Yoo, the People must prove that the defendant
not only intended to kill Venus Hyun, but also intended to kill everyone within the kill
zone. [¶] If you have a reasonable doubt whether the defendant intended to kill Venus
Hyun, or intended to kill everyone in the kill zone, then you must find the defendant . . .
not guilty of the attempted murder of Jean Lee, Michael Paek, John Chung, Ronald
Woodhead, Richard Woodhead, and John Yoo.”
17
killing a targeted individual within that area. In effect, the defendant reasons that he
cannot miss his intended target if he kills everyone in the area in which the target is
located. [¶] The kill zone theory consequently does not operate as an exception to the
mental state requirement for attempted murder or as a means of somehow bypassing that
requirement. In a kill zone case, the defendant does not merely subject everyone in the
kill zone to lethal risk. Rather, the defendant specifically intends that everyone in the kill
zone die. If some of those individuals manage to survive the attack, then the defendant—
having specifically intended to kill every single one of them and having committed a
direct but ineffectual act toward accomplishing that result—can be convicted of their
attempted murder.” (People v. McCloud (2012) 211 Cal. App. 4th 788, 798.)
The kill zone theory does not apply if the defendant does not have a
specific target in mind. (People v. Stone (2009) 46 Cal. 4th 131, 138.) The jury in this
case should not have been instructed on the inapplicable kill zone theory of liability. The
erroneous inclusion of the kill zone theory instruction, however, was harmless. The
prosecution’s theory of the case was that defendant, believing the table at the back of the
Fifth Wave Café to be occupied by members of a gang with which defendant had a
“beef,” entered the café with a loaded gun, intending to kill everyone at the table.
Substantial evidence was offered in support of this theory. The jury was instructed
generally, and correctly, regarding the crime of attempted murder.10
“An indiscriminate would-be killer is just as culpable as one who targets a
specific person.” (People v. Stone, supra, 46 Cal.4th at p. 140 [the defendant was
convicted of attempted murder for firing a single shot into a group of 10 people, even
though the prosecution did not prove the defendant intended specifically to kill the person
he shot].) Despite the incorrect instruction on the kill zone theory, there was no
10
We note that even when arguing the kill zone theory to the jury, the prosecutor
argued only that the theory applied to John Yoo and Richard, who were not hit by any
bullets.
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prejudicial error because the evidence supported defendant’s conviction on all counts of
attempted murder.
IV.
INSUFFICIENCY OF THE EVIDENCE—COUNTS 6 AND 7
Defendant also argues there was insufficient evidence supporting the
convictions for the attempted murders of Richard and Yoo, who were not actually shot
during the incident. Defendant’s argument is based on the recovery of a total of six
cartridge casings at the scene—four from inside the café, and two from outside the café.
Therefore, defendant contends, only six shots were fired, and the evidence only supports
four counts of attempted murder, committed against the four individuals who were
actually shot.11
The number of casings recovered at the scene, however, is not
determinative of the number of shots defendant fired with the intent to kill. Only five
bullets or bullet fragments were ever recovered. More shots were fired than bullets or
fragments recovered, and from this fact the jury could reasonably infer more shots might
have been fired than casings recovered.
More importantly, the testimony of the witnesses supports the guilty
findings on all the attempted murder counts. Robin Kim testified he heard five or six
gunshots. Nair testified he heard six or seven shots. Lee testified five or more shots were
fired. Yoo testified at least five or six shots were fired. Chung testified there were at
least eight shots, “[a]ll fired at the same time,” and there could have been more. Park, the
café waiter, heard between five and seven shots. There was also testimony that Ronald
chased defendant after the shots were fired inside the café, and was then shot in the
abdomen.
11
Ronald was shot twice. Hyun, Lee, Paek, and Chung were each shot a single
time.
19
From all this evidence, there was support for a finding that defendant fired
at least eight shots inside the café, and then fired two more shots at Ronald as he chased
defendant outside the café. Based on this evidence, there was ample support for
defendant’s convictions on all the attempted murder charges, including those for the
victims who were not actually struck by a bullet.
V.
RESTITUTION
Defendant asks that the written restitution order and the abstract of
judgment be amended to reflect that restitution—which was ordered in the amount of
$14,500—be paid jointly and severally with defendant’s codefendants (who pleaded
guilty before trial). The Attorney General concedes it would be appropriate to amend the
restitution order and the abstract of judgment in this manner.
The trial court has the authority to direct that a victim restitution order be
paid jointly and severally by multiple defendants. (People v. Blackburn (1999) 72
Cal. App. 4th 1520, 1535.) Indeed, the failure to make a restitution order joint and several
when the same amount of restitution has been ordered against multiple defendants
convicted of committing the same crime could result in unjust enrichment of the victim.
In this case, at the time of defendant’s sentencing hearing, the trial court
stated that it would order restitution to be paid jointly and severally if the codefendants’
restitution orders had been made joint and several as well. However, no one could
remember whether that had been the case. The court orally imposed a restitution order in
the amount of $14,500 against defendant, and directed the prosecutor to prepare a written
restitution order. The written order and the abstracts of judgment, like the oral order, did
not specify that the restitution order was made jointly and severally.
While it would be appropriate to make the restitution order joint and several
if restitution of $14,500 was also imposed against the codefendants, we have no
20
information in the record as to whether that was the case. Therefore, we cannot modify
the restitution order and abstracts of judgment as requested. Defendant may make an
appropriate motion in the trial court and present evidence that his codefendants’
restitution orders were made in the same amount as his restitution order, and that those
orders were made joint and several.
VI.
PAROLE REVOCATION RESTITUTION FINE
The trial court assessed a $1,000 parole revocation restitution fine against
defendant; the fine was suspended unless defendant violated parole. Defendant argues,
and the Attorney General concedes, that the parole revocation fine should be stricken
because defendant was sentenced to life in prison without the possibility of parole. We
disagree.
In addition to one term of life in prison without the possibility of parole,
and multiple terms of life in prison with the possibility of parole, defendant was
sentenced to a determinate sentence of 40 years. Under these circumstances, the parole
revocation fine under Penal Code section 1202.45 is mandatory. In People v. Brasure
(2008) 42 Cal. 4th 1037, 1075, the California Supreme Court held as follows: “Defendant
here, in addition to his death sentence, was sentenced . . . to a determinate prison term
under [Penal Code] section 1170. [Penal Code s]ection 3000, subdivision (a)(1) provides
that such a term ‘shall include a period of parole.’ Section 1202.45, in turn, requires
assessment of a parole revocation restitution fine ‘[i]n every case where a person is
convicted of a crime and whose sentence includes a period of parole.’ The fine was
therefore required, though by statute and the court’s order it was suspended unless and
until defendant was released on parole and his parole was revoked. [Citation.] [¶]
People v. Oganesyan (1999) 70 Cal. App. 4th 1178 . . . , upon which defendant relies, is
distinguishable as involving no determinate term of imprisonment imposed under
21
section 1170, but rather a sentence of life without the possibility of parole for first degree
special circumstance murder and an indeterminate life sentence for second degree
murder. [Citation.] As in Oganesyan, to be sure, defendant here is unlikely ever to serve
any part of the parole period on his determinate sentence. Nonetheless, such a period was
included in his determinate sentence by law and carried with it, also by law, a suspended
parole revocation restitution fine.”
People v. McWhorter (2009) 47 Cal. 4th 318, which the Attorney General
cites, does not compel a different result. In that case, the Supreme Court held that a
parole revocation restitution fine must be stricken because the defendant’s sentence did
not include a period of parole. (Id. at p. 380.)12
The Attorney General contends that the trial court stayed execution of
defendant’s determinate sentence. The appellate record, however, reflects that while
execution of the determinate sentence on count 8 (street terrorism) was stayed, two
20-year determinate terms for the firearm sentencing enhancements on counts 6 and 7
were imposed and not stayed. The chance that defendant will ever be paroled is remote.
However, as in People v. Brasure, a period of parole was included in defendant’s
sentence by law, and the imposition of the parole revocation restitution fine was therefore
mandatory. Defendant cannot be prejudiced by the assessment of the parole revocation
restitution fine, which will only become payable if he begins serving a period of parole,
and that parole is revoked. (People v. Brasure, supra, 42 Cal.4th at p. 1075.)
12
The defendant had been sentenced to death. (People v. McWhorter, supra, 47
Cal.4th at p. 324.)
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DISPOSITION
The judgment is affirmed.
FYBEL, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ARONSON, J.
23