Opinion
A164509
09-27-2023
THE PEOPLE, Plaintiff and Respondent, v. PRESTON KHAOONE, Defendant and Appellant.
NOT TO BE PUBLISHED
(Sonoma County Super. Ct. No. SCR5321504).
BROWN, P. J.
Preston Khaoone appeals from the trial court's order denying his petition under former Penal Code section 1170.95, now section 1172.6. That statute allows a defendant convicted of felony murder to have his conviction vacated and be resentenced if the conviction would not be valid under the recent amendments to sections 188 and 189. (§ 1172.6, subd. (a).) Those amendments changed the law so that a participant in certain felonies in which a death occurs is liable for murder only if the participant was the actual killer, aided and abetted the murder with the intent to kill, or was a major participant in the underlying felony who acted with reckless indifference to human life. (§ 189, subd. (e).)
Undesignated statutory references are to the Penal Code. Section 1170.95 was in effect when the trial court ruled on the petition. The Legislature subsequently renumbered section 1170.95 as section 1172.6, without substantive change. (Stats. 2022, ch. 58, § 10.) For simplicity, we refer to this statute by its current numbering, regardless of the time period at issue.
Preston was convicted of the first degree murder of Vutha Au, active participation in a criminal street gang, and kidnapping, and the jury was instructed on the felony-murder theory based on the kidnapping. Preston contends the trial court erred in denying his petition because the trial court used the wrong legal standard in finding he aided and abetted the actual killer with the intent to kill, and the trial court's findings that he had the intent to kill and was a major participant with reckless indifference to human life relied on testimony of an incustody informant whose testimony was not corroborated as section 1111.5 requires. We find no error in the trial court's ruling and will affirm.
Where necessary to avoid confusion, we use first names to refer to individuals who share the same last name as others involved in the case.
BACKGROUND
Terry Au
Terry Au, the victim's brother, sold drugs for Preston's brother, Peter. Terry stopped selling drugs after Peter was arrested. Although Terry said nothing to the police about Peter and drug sales, Preston accused Terry of snitching on Peter. Terry therefore agreed when a third Khaoone brother, Perry, asked Terry to resume selling drugs for Peter.
Terry then stopped selling again. Perry accused Terry of owing him money and said he wanted Terry to continue selling drugs. One day, Perry along with a fourth Khaoone brother named Pongsony, and another man named Boonlack Phanchanh came to Terry's home. They took Terry from his home and beat, kicked, punched, burned, and choked him over the course of five hours. Perry tried to cut off Terry's fingers and told Terry's brother Vutha by phone that Vutha needed to bring them $5,000 if he wanted to see Terry again. They eventually let Terry go. Perry, Pongsony, and Phanchanh were charged with kidnapping, robbery, burglary, and gang and gun allegations. Terry testified at the preliminary hearing. The three individuals then pled guilty to kidnapping and a gang allegation, and Perry also pled guilty to possessing a controlled substance with intent to sell. Terry, Vutha, their father, and Terry's niece were moved out of Sonoma County in a witness relocation program. Terry did not return to Sonoma County, but Vutha did, against Terry's wishes.
Our opinion in Preston's direct appeal speculated that Phanchanh was a misspelling of Boonlack Chanpheng, but this was incorrect. (People v. Prak (Jan. 6, 2017, A136146) [nonpub. opn.] (Prak).)
The kidnapping and murder
One night in March 2008, after a party, Vutha, Tyrone Tay, and Witness 2 left a home in Sonoma County and intended to go clubbing. Just before midnight, Tay, who was driving, received messages from Chanpheng. Chanpheng told Tay that Preston had been looking for Vutha, that Vutha "gots 2 go," and that they were about to "fuc hm up" but needed to "get word frm crip 1st [sic]." Preston was known as Crippin. Chanpheng called a phone associated with Preston, who was at a gathering with David and Sarith Prak and Quentin Russell. David, who was by then at a different location, called Chanpheng, and then Chanpheng texted Tay and told him to drive Vutha to a location outside a pool hall in downtown Santa Rosa.
Although all witnesses' names were used in the trial, the trial record refers to certain witnesses using pseudonyms to protect them from potential retaliation. In the interests of consistency, we follow that approach here, as we did in Prak, instead of using the more common approach of protecting privacy by referring to witnesses by first name and last initial or first and last initials. (Prak, supra, A136146; Cal. Rules of Court, rule 8.90(b)(10); Advisory Com. com., Cal. Rules of Court, rule 8.90.)
Within the next 15 minutes, Witness 2 called Witness 4 and said a group of unidentified individuals took Vutha. Witness 2 tried to stop them but was unsuccessful.
About 1:00 a.m. early the next morning, which was about 40 minutes after Witness 2 said Vutha was taken, Park Ranger Jeremy Stinson was on patrol near Highway 1, driving on a side road that led to Blind Beach. Near Blind Beach, Stinson passed a dark sedan driving in the opposite direction. At the Blind Beach parking lot, Stinson found Vutha without a pulse in a pool of blood. Stinson contacted dispatch and provided a description of the dark sedan. A sheriff's deputy stopped the car, a blue Honda, near Monte Rio, about 10 miles from Blind Beach on the deserted highway heading east towards Santa Rosa. Deputies arrested Preston, who had been driving; Quentin Russell, who was in the front passenger seat; and the Prak brothers, who were in the backseat.
At the Blind Beach parking lot, deputies found 17 nine-millimeter shell casings near Vutha's body. Vutha's shirt had been pulled up around his neck, and his socks and shoes were on the ground east of his body, as were three dimes. At various locations along the side of the road between Blind Beach and where the blue Honda was stopped, deputies found a shirt with DNA matching Russell's, two gloves, Vutha's car keys, and a nine-millimeter Glock with a laser sight and an empty magazine designed to hold 18 rounds. As set forth in more detail post, Witness 7 identified the gun as one Preston had showed him in 2005 or 2006. Tests showed the Glock was used to fire the shell casings found near Vutha's body. Fibers on Vutha's pants matched those from the blue Honda.
Asian Boyz
Asian Boyz was a gang whose primary activities were murder, kidnapping, drug sales, unlawful firearm possession, burglary, vehicle theft, assaults on rival gang members, and witness intimidation. According to law enforcement, Preston, Russell, and the Praks were active members of Asian Boyz, based on their tattoos, prior contacts with law enforcement, and admissions they had made. Law enforcement also identified Perry, Pongsony, Phanchanh, and Chanpheng as Asian Boyz members. David and Sarith had previously been found to have attempted to intimidate a witness in violation of section 136.1, subdivision (a)(2). According to Witness 7, an Asian Boyz member who had tried to distance himself from the gang, the phrase "dropping dime" meant snitching, and someone who dropped dime or snitched invited retaliation in the form of a fight or attack.
Trial
Preston, Russell, Sarith, David, Chanpheng, and Tay were ultimately charged with first-degree murder, active gang participation, and kidnapping. Among the special allegations were that the murder was committed during a kidnapping (§ 190.2, subd. (a)(17)) and was gang-related (§ 190.2, subd. (a)(22)), as well as various firearm enhancements (§ 12022.53, former subds. (b)-(e), added by Stats. 1997, ch. 503, § 3 and amended by Stats. 2006, ch. 901, § 11.1, effective January 1, 2007). It was further alleged that the murder and kidnapping were committed in association with a criminal street gang (§ 186.22, subd. (b)). Changpheng and Tay pled guilty to kidnapping with a gang enhancement and were sentenced to 15 and 18 years, respectively. (People v. Chanpheng (Jan. 28, 2013, A137663) [nonpub. opn.]; People v. Tay (Apr. 30, 2013, A132382) [nonpub. opn.].)
In early 2012, the remaining defendants were tried before two juries, one for Preston alone and the other for the other three defendants. Preston's jury heard additional evidence that the other defendants' jury did not, including some of the testimony of Witness 7 and all of the testimony of Witness 8.
Witness 7 told Preston's jury that on December 31, 2007, he saw Preston, the Praks, and Russell at the house of another Asian Boyz member. Witness 7 asked Preston about his brothers and their court case. Preston replied that he was upset with Terry and that if he caught up with Terry, Terry would "get it," meaning he would retaliate against Terry for testifying against Preston's brothers. Preston also told Witness 7 that he had seen Terry's mother driving and tried to pursue her but lost her in traffic.
In addition, Witness 7 testified that around 2005 or 2006, Preston showed Witness 7 a gun and said, "Look at my new gun." Preston said the gun was a nine-millimeter handgun, and Witness 7 observed that the gun was black, was not a revolver, had an infrared-laser sight underneath the barrel, and had an extended clip. Witness 7 identified the gun used to kill Vutha as the gun Preston had shown him.
Witness 7 knew Vutha had been shot, but he did not discuss Preston's gun with law enforcement in three different interviews before trial or in testimony in the preliminary hearing. Witness 7 did not raise his memory of Preston's gun until he had finished his initial trial testimony. However, in neither his law enforcement interviews nor in his testimony at the preliminary hearing or earlier in the trial had anyone specifically asked Witness 7 about whether Preston had ever possessed any guns. Witness 7 did not receive any additional benefit for providing the new information about Preston's gun.
Witness 8 testified before Preston's jury that he first met Preston as an occasional drug supplier in 2006. In 2008, Witness 8 was in custody in the Sonoma County jail in the same modules as Preston. During one period, Witness 8's cell was adjacent to Preston's at a 90 degree angle, the two could see each other, and they could speak to each other through a vent. The vent also went to two cells on the lower floor. Because of a very loud fan, it was very hard to hear someone on a different floor unless the speaker was really screaming or if the listener "ear hustled." Later on, after both men were transferred to a different module, they could communicate during the three 30-minute recreational periods.
Witness 8 testified that about a month and a half after they were initially housed next to each other, Preston began telling him about Preston's involvement in a murder, expanding on details over time. Witness 8 read two news articles about Preston's case, but he claimed Preston had supplied all the information Witness 8 gave police.
Preston told Witness 8 that a witness was going to testify against Preston's brothers in a kidnapping case and Preston had set up the witness to be killed. Preston told two different stories about how the murder came about. He first told Witness 8 that he was able to get the witness to go to a party, and Preston, two men who were brothers, and a "native guy" named Russell snatched the witness from the street and forced him in a car. Preston later told Witness 8 a different story, in which someone else took the witness from a party, Chanpheng called Preston, and then Preston came with the two brothers and the Native American and snatched up the witness.
Preston elaborated to Witness 8 that the kidnapped witness was friends with one of the people involved in the kidnapping. Preston and the kidnappers used someone else's blue Honda Accord. There was a struggle to get the witness in the car. Preston drove, Russell was in the front seat, and the brothers were in the backseat with the witness between them. Preston told the brothers to blindfold the witness and gag him with a sock. However, tests of Vutha's socks did not reveal any evidence of saliva.
According to Witness 8, when they reached Bodega Bay, Russell and the Prak brothers took Vutha out of the car, and Preston reached under his seat, took out a nine-millimeter pistol he owned, and put it on the front passenger seat. Preston told Russell to take the pistol, but Russell was reluctant. Preston told him to "stop acting like a bitch and handle that." Russell then grabbed the gun and shot 18 times at the witness, emptying the clip. Preston took the gun back, wiped off any fingerprints, and disposed of it. The group then got back in the car and drove towards Santa Rosa.
At some point after Preston started sharing this information, Witness 8 began writing it down in the hopes that it could help him get a deal. Witness 8 faced a possible sentence of 15 years in prison on the charges for which he was in custody at the time, which were robbery with a firearm use enhancement, felon in possession of a firearm, and a probation violation from a conviction for possession of marijuana for sale with an armed enhancement. He was originally offered a 12-year deal, but his eventual deal was for five years in prison in exchange for truthful testimony against Preston.
The two juries found all four defendants guilty on all counts and found the firearm enhancements and kidnapping special circumstance true, as well as the allegations under section 186.22, subdivision (b)(1) that the murder and kidnapping were committed for the benefit of, at the direction of, or in association with a criminal street gang with the intent to promote, further, or assist in criminal conduct. Preston's jury found true the allegation under section 190.2, subdivision (a)(22) that he was an active participant in a gang and the murder was carried out to further the activities of the gang, but the other jury found it not true as to the other defendants. The trial court sentenced Preston to life without parole, plus consecutive terms of 25 years to life for the firearm enhancement and two years for active gang participation. This court affirmed the conviction but stayed the two-year sentence under section 654. (People v. Prak, supra, A136146.) This court also corrected several errors in the abstract of judgment. (Ibid.)
In 2019, Preston filed a petition under section 1172.6, alleging he was eligible for resentencing because he could no longer be convicted of murder under current law. After holding an evidentiary hearing, the trial court denied the petition.
At the section 1172.6 evidentiary hearing, the trial court heard live testimony from two new witnesses whose testimony was aimed at undercutting the testimony of Witness 8. The trial court found neither witness to be credible and Preston's arguments on appeal do not rely on these witnesses' testimony, so we need not discuss them. We recognize, however, that Preston filed a petition for writ of habeas corpus arguing that his trial counsel was ineffective for not discovering one of the two witnesses at the section 1172.6 hearing, John Wesley Smith, Jr. Preston argues Smith's testimony could have undermined Witness 8's credibility. But as discussed post, the evidence of Preston's guilt was strong even without Witness 8's testimony, so we see no reasonable probability that discrediting him would have led to a different outcome in Preston's trial, either on the substantive charges or special allegations. We will therefore deny Preston's habeas petition by a separate order.
DISCUSSION
I. Relevant legal principles and standard of review
"In Senate Bill No. 1437 (2017-2018 Reg. Sess.) . . ., the Legislature significantly narrowed the scope of the felony-murder rule. It also created a path to relief for defendants who had previously been convicted of murder on a felony-murder theory but who could not have been convicted under the new law." (People v. Strong (2022) 13 Cal.5th 698, 703.) Section 1172.6 spells out this path to relief. Under section 1172.6, subdivision (a), as relevant here, "[a] person convicted of felony murder . . . may file a petition with the court that sentenced the petitioner to have the petitioner's murder . . . conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder .... [¶] (2) The petitioner was convicted of murder .... [¶] (3) The petitioner could not presently be convicted of murder . . . because of changes to Section 188 or 189 made effective January 1, 2019."
If a petition under section 1172.6 states a prima facie case for relief, the trial court must issue an order to show cause and hold a hearing on whether to vacate the petitioner's murder conviction, recall the sentence, and resentence the petitioner. (§ 1172.6, subds. (c), (d)(1).) At the evidentiary hearing, "the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (d)(3).) The trial court may consider evidence previously admitted at any hearing or trial, and "may also consider the procedural history of the case recited in any prior appellate opinion." (Ibid.)
As relevant here, the 2019 changes to sections 188 and 189 allow a defendant to be convicted of murder under a felonymurder theory only if "(1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2." (§ 189, subd. (e)(1)-(3); see also § 188, subd. (a)(3).) Cases interpreting section 190.2, subdivision (d), including People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, are controlling in section 1172.6 hearings on what it means to be a major participant who acts with reckless indifference. (People v. Guiffreda (2023) 87 Cal.App.5th 112, 123.)
We review for substantial evidence the trial court's factual findings in its ruling on Preston's section 1172.6 petition. (People v. Guiffreda, supra, 87 Cal.App.5th at p. 125.) "[W]e must ensure the record demonstrates substantial evidence to establish guilt beyond a reasonable doubt." (People v. Renteria (2022) 13 Cal.5th 951, 970, citing Conservatorship of O.B. (2020) 9 Cal.5th 989, 1008.)" 'Our job on review is different from the trial judge's job in deciding the petition. While the trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard, our job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a rational fact finder's findings beyond a reasonable doubt.' [Citation.] We will not reverse unless there is no hypothesis upon which sufficient substantial evidence exists to support the trial court's decision. [Citation.] We must 'presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] 'The same standard applies when the conviction rests primarily on circumstantial evidence.' [Citation.] 'An appellate court must accept logical inferences that the [trier of fact] might have drawn from the circumstantial evidence.'" (Guiffreda, at p. 125.)
II. Analysis
A. The trial court's aiding and abetting finding
Preston begins by arguing the trial court failed to use the proper reasonable doubt standard when it found him guilty under an aiding and abetting theory. His argument turns on the language of the trial court's statement of decision.
In a section titled "People's Burden of Proof," the statement of decision says that "the burden of proof is on the Prosecution to prove beyond a reasonable doubt, that [Preston] is ineligible for resentencing" and that the court had to determine, as a trier of fact, whether Preston was "guilty under a [currently] valid theory of murder." After examining the evidence and finding Preston guilty of felony murder as a major participant in the kidnapping with reckless indifference, the statement of decision then turns to the aiding and abetting theory. It states, "Based on the evidence discussed above, the Court also finds that although the Petitioner Preston Khaoone was not the 'actual killer' of the victim Vutha Au, the jury could have found that the Petitioner Preston Khaoone with the intent to kill the victim, aided, abetted, counseled, commanded, induced, solicited, requested and assisted the actual killer Quentin Russell in the commission of murder in the first degree." Finally, it a section titled "Conclusion," the statement of decision states, "This Court finds, beyond a reasonable doubt, that Petitioner Preston Khaoone was a major participant in the felony crimes that resulted in the murder and death of Vutha Au and that he acted with reckless indifference to human life at the time of the crimes. The Court also finds that the Petitioner aided and abetted the actual killer Quentin Russell in the killing of the victim."
Preston points to the trial court's statement that "the jury could have found" Preston guilty under an aiding and abetting theory, which he contends shows the trial court did not find him guilty beyond a reasonable doubt. He also contrasts the trial court's statement of the reasonable doubt standard in its conclusion regarding the major participant with reckless indifference theory with the absence of any mention of the reasonable doubt standard in its conclusion regarding the aiding and abetting theory, arguing the difference means the trial court used an inadequate standard for the aiding and abetting finding.
Preston misconstrues the trial court's statement of decision. The declaration that the prosecution bore the burden of proof of a currently valid murder theory beyond a reasonable doubt betrays no uncertainty about the governing standard. The trial court confirmed its understanding of the proper standard by mentioning reasonable doubt multiple times in its findings regarding major participation and reckless indifference. After applying the reasonable doubt standard to one murder theory, there is no evident reason why the court would have then pivoted to apply a lesser standard to the other possible theory, especially without identifying the different standard or offering some explanation for applying it. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 [trial court judgment is presumed correct].) Considered in context with the rest of the opinion, we do not construe the trial court's reference to the fact that "the jury could have found" him guilty under an aiding and abetting theory as improperly applying a lower standard. The trial court likely referred to the jury simply because it was applying the same reasonable doubt standard as the jury had in the original trial.
The trial court's conclusion dispels any remaining uncertainty about the standard the trial court applied, rather than demonstrating error as Preston argues. After finding beyond a reasonable doubt that Preston was guilty as a major participant with reckless indifference, the trial court's statement that it "also finds" (italics added) that Preston aided and abetted the murder with intent to kill indicates the trial court was making the second finding by the same reasonable doubt standard as the first. Again, there is no evident reason why the trial court would have applied different standards to the two possible theories at issue.
Even if the trial court had applied an improper standard, as discussed post, we affirm its finding that Preston was a major participant with reckless indifference, so the insufficiency of the aiding and abetting finding would not require reversal of the trial court's order in any event.
B. Section 1111.5 and corroboration of Witness 8
Conceding that the evidence is sufficient to show he was a major participant in the kidnapping felony underlying his murder liability, Preston next argues that the evidence is insufficient to support the trial court's findings that he acted with reckless indifference to human life or aided and abetted the killer with the intent to kill. Preston contends that under section 1111.5, Witness 8's testimony is legally insufficient to support the trial court's intent to kill and reckless indifference findings.
Section 1111.5 states in pertinent part: "A jury or judge may not convict a defendant, find a special circumstance true, or use a fact in aggravation based on the uncorroborated testimony of an in-custody informant. The testimony of an in-custody informant shall be corroborated by other evidence that connects the defendant with the commission of the offense, the special circumstance, or the evidence offered in aggravation to which the in-custody informant testifies. Corroboration is not sufficient if it merely shows the commission of the offense or the special circumstance or the circumstance in aggravation." (§ 1111.5, subd. (a).)
In his direct appeal, Preston argued the trial court failed to properly instruct the jury that section 1111.5 required corroboration for Witness 8's testimony because he was an incustody informant. (Prak, supra, A136146.) This court agreed but found the error harmless under the standard in People v. Watson (1956) 46 Cal.2d 818. (Ibid.) Prak held that the evidence corroborating Witness 8's testimony could be" 'slight,'" did not need to support every fact contained in Witness 8's testimony about Khaoone's statements, and only needed to connect Preston to the crime. (Ibid.) Prak found the necessary connection between Preston and the murder in the fact that Preston "was apprehended on a deserted road shortly after Vutha's body was discovered." (Ibid.) Prak found no need for corroboration of Witness 8's testimony that Preston had sold drugs or wanted Vutha killed to prevent him from testifying in Terry's case, since supporting evidence connected Preston to the charged offenses and enhancements. (Ibid.)
Preston acknowledges the holding in Prak but contends section 1111.5 must be analyzed differently now because the law of murder has changed. He argues that section 1111.5 applies to section 1172.6 evidentiary hearings. He further contends, based on People v. Davis (2013) 217 Cal.App.4th 1484, 1489-1490, that section 1111.5 requires corroboration that directly connects him to the murder and a slight and circumstantial corroboration is insufficient. Preston urges us to disregard Witness 8's testimony and determine whether the remaining evidence directly connects him to Vutha's murder by showing he acted with reckless indifference or the intent to kill.
In his reply brief, Preston goes further and argues for the first time that evidence of Preston's reckless indifference cannot satisfy section 1111.5's corroboration requirement. He reasons that the statute requires corroboration of Witness 8's testimony and Witness 8's testimony was only that Preston intended to kill Vutha, not that Preston was recklessly indifferent. Leaving aside that Preston raised it for the first time on reply, as well as other flaws, this argument would not require reversal of the trial court's order. If Witness 8's testimony were irrelevant to reckless indifference, then any lack of corroboration of his testimony would not implicate the trial court's reckless indifference finding; the reckless indifference finding would stand or fall on other evidence. Since Preston does not otherwise challenge the sufficiency of the evidence of his reckless indifference and concedes he was a major participant, this would be dispositive of his petition. We will therefore disregard this argument and consider instead whether Witness 8's testimony is corroborated by independent evidence of Preston's intent to kill or reckless indifference to human life.
We need not examine each premise of this chain of reasoning because Preston's argument fails at the last step. If we ignore Witness 8's testimony, the remaining evidence directly connects Preston to Vutha's murder under both the intent to kill and reckless indifference theories. In fact, the remaining evidence is sufficiently strong on its own to establish Preston's intent to kill or reckless indifference beyond a reasonable doubt.
We therefore reject Preston's related arguments that Witness 8's testimony does not qualify as substantial evidence because of various flaws and inaccuracies and that the record is otherwise devoid of substantial evidence of his intent to kill or reckless indifference.
1. Intent to kill
Turning first to Preston's liability for aiding and abetting the murder with the intent to kill, Preston concedes that of the four defendants tried together, he had the greatest motive to commit a crime against Vutha. Perry and Pongsony were members of the Asian Boyz gang together with all four defendants, but they were also Preston's brothers, so Preston had a particularly strong motive to dissuade Terry from testifying against them. Preston views this motive as only supporting an inference that he was the "primary mover" in Vutha's kidnapping, not that he had an intent to kill. But Witness 7's testimony that Preston said that he had chased Terry's mother at one point and that Terry would "get it" if Preston caught up with him support the trial court's conclusion that Preston intended to do more than merely kidnap Vutha and leave him at the beach or beat him, as Preston suggests. (People v. Guiffreda, supra, 87 Cal.App.5th at p. 125 [on substantial evidence review, appellate court must accept logical inferences trial court might have drawn].)
It is suggestive that three dimes were found near Vutha's body. Witness 7 testified that within the Asian Boyz gang, "dropping dime" meant snitching and snitching could have consequences. The presence of dimes near Vutha's body could therefore be interpreted as a signal that Vutha's killing was in retaliation for Terry's testimony, indicating the murder was intentional and not a spur of the moment killing.
The text messages that preceded Vutha's kidnapping also show that Preston intended to kill Vutha. Chanpheng texted Tay and said that Vutha "gots 2 go," Preston had been looking for him, and they were about to "fuc hm up," but Chanpheng needed to "get word frm crip 1st [sic]." Chanpheng then called Preston, who was known as Crippin, indicating that "crip" in the text message referred to Preston. While Preston argues this shows only that Preston was the main planner of the kidnapping, the trial court could fairly read these text messages as meaning Vutha was to be killed. Combined with Chanpheng's other statement that Preston's approval was necessary, this is evidence that Preston himself intended to kill Vutha before the kidnapping.
If additional support were necessary, Witness 7's testimony that Preston owned the gun used to kill Vutha provides it. Preston's act of bringing his own distinctive gun with a laser sight to the kidnapping indicates that he intended it to be used that night. Preston attempts to undermine Witness 7's credibility by citing his criminal history, failure to mention Preston's gun ownership until partway through trial, lack of any other evidence that Preston owned a gun, and inference that Russell owned the gun because it was disposed of on Russell's side of the car. But we do not make credibility determinations or weigh evidence on substantial evidence review; that is the role of the fact finder. (People v. Guiffreda, supra, 87 Cal.App.5th at p. 125.) Even if we did, Witness 7's explanation that he failed to mention the gun earlier because the prosecutors did not ask about it is plausible; if Witness 7 intended to fabricate his testimony, as is Preston's implication, he likely would have done so earlier rather than waiting until trial was underway. Witness 7 did not receive any additional benefit for providing the new information about Preston's gun.
Finally, as noted in Prak, other evidence showed that Preston drove the car in which the defendants left the scene of Vutha's murder and was present when the defendants were apprehended shortly after the discovery of Vutha's body. (Prak, supra, A136146.) Preston concedes that this evidence implicates him in Vutha's kidnapping but maintains it does not show an intent of kill. This might be true if we were to consider this evidence on its own. But when we consider it together with the previously-discussed evidence - i.e., Preston's motive as a gang member and brother, the text messages indicating that Vutha "gots 2 go" and that the group was going to "fuc hm up" if Preston approved [sic], Preston's ownership of the murder weapon and presence at the scene, and Preston's controlling position in the literal and figurative driver's seat of the kidnapping - the record as a whole provides additional support for the prosecution's theory that Preston orchestrated the kidnapping with the intent to kill Vutha.
2. Reckless indifference
Preston does not engage in a detailed consideration of the evidence as it relates to reckless indifference, relying instead on the same reasoning as his intent to kill argument. But our Supreme Court has established a "nonexhaustive list of considerations relevant to [the reckless indifference] determination, including [(1)] use of or awareness of the presence of a weapon or weapons, [(2)] physical presence at the scene and opportunity to restrain confederates or aid victims, [(3)] the duration of the crime, [(4)] knowledge of any threat the confederates might represent, and [(5)] efforts taken to minimize risks." (People v. Strong, supra, 13 Cal.5th at p. 706.) Analyzing the evidence under this rubric, there is sufficient evidence supporting the trial court's findings on all of these factors.
First, Preston's ownership of the murder weapon indicates he knew of the weapon and was aware that it could or would be used. Second, Preston was present throughout the kidnapping, at the murder, and during the flight and disposal of evidence afterwards, as he concedes. This, as well as his apparent leadership role, demonstrates he had ample opportunity to restrain his co-defendants or help Vutha. Third, the kidnapping lasted 40 minutes or more, which increased the opportunity for violence. (People v. Clark, supra, 63 Cal.4th at p. 620.) Fourth, Preston's involvement in the planning and approval of the kidnapping, as demonstrated in the pre-kidnapping text messages, as well as his ownership of the gun, demonstrates his knowledge of the threat the group represented. Finally, there is no evidence that Preston took any efforts to minimize risks. Taken together, the evidence on all these factors supports the trial court's finding that Preston acted with reckless indifference to human life.
DISPOSITION
The trial court's order is affirmed.
WE CONCUR: GOLDMAN, J., FINEMAN, J.[*]
[*] Judge of the Superior Court of California, San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.