Opinion
A136146
01-06-2017
THE PEOPLE, Plaintiff and Respondent, v. SARITH PRAK et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR532150)
I. INTRODUCTION
Defendants Sarith Prak, David Prak, Quentin Glenn Russell, and Preston Khaoone were charged with multiple felony counts, including active gang participation (Pen. Code, § 186.22, subd. (a)), kidnapping (§ 207, subd. (a)), and first-degree murder (§ 187). Special circumstances for murder during the commission of a kidnapping (§ 190.2, subd. (a)(17)) and gang-related murder (§ 190.2, subd. (a)(22)) were alleged, as were various firearm enhancements (§ 12022.53, subds. (b)-(e)). It was further alleged that the crimes were committed in association with a criminal street gang. (§ 186.22, subd. (b).)
All further undesignated statutory references are to the Penal Code.
The case was tried before two juries. Khaoone was tried alone ("green jury") and the other defendants were tried together ("blue jury"). Following a 44-day trial, the two juries found the four defendants guilty on all counts, and found the firearm enhancements and kidnapping special circumstances true as to each. The green jury found the gang special circumstance true as to Khaoone, while the blue jury found it not true as to the other three defendants.
The trial court sentenced each defendant to a term of life without parole, plus consecutive terms of 25 years for the firearm enhancement on count one, and two years on count two. The court stayed the term on count three.
On appeal, defendants raise numerous claims of evidentiary and instructional error. We affirm, with modifications to the judgment to correct a sentencing error and errors in the abstract of judgment.
II. EVIDENCE AT TRIAL
We provide only the background facts in this section. Additional facts will be provided with respect to the specific issues raised on appeal.
A. Murder of Vutha Au
Vutha Au was shot nine times and killed in the early morning hours of March 2, 2008. Earlier in the evening, Vutha, Tyrone Tay, and another man, described as Witness 2, had left a party in Sonoma County and were planning to go "clubbing." Just before midnight, Tay, who was driving, received text messages from Boonlack Chanpheng, an Asian Boyz gang member. Chanpheng told Tay that Khaoone had been looking for Vutha, that Vutha has "gots 2 go," [sic] and that they were going to "fuc hm up." [sic] Chanpheng then placed brief calls to the phones associated with Khaoone and David Prak, who were at another gathering. Chanpheng then texted Tay and told Tay to drive Vutha to a location outside a pool hall in downtown Santa Rosa. Tay complied.
As there are several people in the case who share the same last names, i.e. Au, Prak, and Khaoone, occasionally we will refer to them by their first names for purposes of clarity.
Eight prosecution witnesses were designated only by numbers in the appellate record, as requested by the prosecution; the names of the witnesses, however, were used when they testified.
Although there was no direct trial testimony as to what occurred when Tay arrived at the pool hall, Witness 2 made out-of-court statements that were admitted in evidence, stating that he tried to protect Vutha when a group that he did not identify took Vutha. Witness 4, Witness 2's brother-in-law, told a detective that early in the morning of March 2, 2008, Witness 2 phoned him and said, "They got Vutha." Witness 2 did not indicate who "they" were. Witness 2 had a visible bruise near his eye that morning.
At approximately 1:00 a.m. on March 2, 2008 (or about an hour after the last text message between Tay and Chanpheng), Park Ranger Jeremy Stinson was on patrol on Highway 1, driving toward Blind Beach. When he was about 250 yards from Blind Beach, he passed a dark sedan going the opposite way. Stinson continued to Blind Beach where he found Vutha on the ground, with a pool of blood around his head. Stinson checked to see if Vutha had a pulse and found that he did not have one. Stinson contacted dispatch and provided a description of the car he had seen.
In response to the information Stinson transmitted to dispatch, a deputy proceeded along Highway 116 to Blind Beach. There, he saw a blue Honda going the opposite way, and turned around and followed it. He stopped the car on Highway 116 near Crescent Avenue, about 10 miles from Blind Beach. Once they arrived, the deputies arrested Khaoone, who had been driving, Russell, who was in the passenger seat, and the Praks, who were in the back seat.
A detective brought Ranger Stinson to the scene of the car stop. He recognized the car by its tail lights. Another park ranger drove along Highway 1 toward Blind Beach at that time, and did not see any other cars on the road.
At Blind Beach, deputies found 17 shell casings near Vutha's body. All the casings were consistent with being fired from the same gun. Vutha's shirt had been pulled up around his neck. Vutha's shoes and socks were on the ground close to his body, along with three dimes.
Deputies later searched the area between Monte Rio at F Street, the parking lot and Highway 116, the site of the car stop. About 7 miles from the parking lot, on the side of the road they found a shirt and gloves. The shirt contained DNA that matched a sample provided by Russell. They also found Vutha's car keys about 8.5 miles along the route. About 1.5 miles from the parking lot, deputies found a 9 millimeter Glock and an empty magazine that was designed to hold 18 rounds. B. Gang Evidence
A gang expert, Detective Gregory Wojcik, testified that Asian Boyz was a Crip gang that used the letters ABZ and claimed the corresponding numbers of 1, 2, and 26, or 1226. While being Asian was not a prerequisite to membership, most members in Santa Rosa were Cambodian or Laotian. Detective Wojcik testified that the primary activities of the Asian Boyz were murder, kidnapping, drug sales, firearm possession, burglary, vehicle theft, and assaults on rival gang members. Detective Wojcik further opined that Asian Boyz members would only commit serious crimes with people they trust. Violent crimes benefit the gang and its members by adding to fear and respect.
Numerous law enforcement witnesses testified that all four defendants were active members of Asian Boyz. They based this opinion on the presence of tattoos, prior contacts with defendants, and admissions defendants had made. A gang expert, Detective Brandon Cutting, also identified Boonlack Chanpheng as an active Asian Boyz member. Chanpheng was known as "short" or "little shorty." Preston Khaoone went by the moniker "Crippin," while Sarith Prak went by "little cuzz," and David Prak went by "canine." C. Offenses Against Terry Au
Terry Au, Vutha's younger brother, testified that he sold marijuana and methamphetamine for Peter Khaoone, defendant Preston Khaoone's brother. Terry stopped selling drugs after Peter was arrested during a traffic stop. After the arrest, Preston accused Terry of snitching on Peter. Terry agreed to continue selling drugs for Peter because he was concerned that they had accused him of being a snitch. He stopped selling drugs at the beginning of 2007. Perry Khaoone, another brother, then told Terry he wanted him to sell more drugs and that Terry owed him money. At first, Perry demanded $200, and then he demanded $1,000. Terry agreed to pay these amounts because he was afraid.
On several occasions, Perry and others would come to Terry's house and take things. Terry described one occasion when Perry, his brother Pongsony Khaoone, and another person invaded his house. Perry struck him with a gun and others held him at knife point. They forced Terry to go with them in their car. When they arrived at their destination, Terry was beaten, kicked, punched, burned, and choked. Perry threatened to cut off his fingers, and said he wanted $1,000 for each finger. Perry tried to hack off a finger with a garden tool, but Terry was able to pull away. Perry called Vutha, and told him that he needed to bring them $5,000 if he wanted to see Terry again. Terry was with them for five hours before an unidentified woman came and took him to a drop off point, from which he walked home.
Perry, Pongsony, and Boonlack Phanchanh were charged with numerous offenses, including kidnapping (§§ 209, subd. (a), 207, subd. (a)), robbery (§ 211), burglary (§ 459), as well as gang enhancements (§186.22, subd. (a)). Subsequently, Perry, Pongsony, and Boonlack pled guilty to kidnapping Terry and admitted the gang allegations; Perry also pled guilty to possessing methamphetamine with intent to sell. The remaining charges were dismissed.
This appears to be a typographical error in the record regarding the spelling of Boonlack Chanpheng's last name.
After testifying against Perry, Pongsony, and Boonlack at the preliminary hearing, Terry was moved out of Sonoma County, along with his father, brother Vutha, and a niece, in a witness relocation program. Following the relocation, Terry did not return to Sonoma County; however, his brother Vutha did go back against Terry's wishes. D. Evidence Limited to the Green Jury
Witness 8 was an in-custody informant who testified in exchange for a reduction of his sentence. Witness 8 said he met Preston Khaoone in 2006, when Witness 8 had purchased the drug Ecstasy for him to sell. However, gang expert Detective Cutting explained that although Preston was on probation in 2006, there was no information that he sold drugs at that time. There was also no evidence that Preston had any prior contacts with Witness 8.
Witness 8 testified that he spoke with Preston in June or July of 2008, while they both were in custody in the Sonoma County jail. According to Witness 8, Preston told him that there was a separate case where a witness was going to testify against his brother, and that Preston had the witness killed. Preston gave Witness 8 two versions of Vutha's murder. In one version, Preston said he got Vutha to go to a party where he and three other people, described as two brothers and a Native American, later identified as co-defendant Russell, were in attendance. When Vutha arrived, Preston and the three others "snatched" him and forced him into a car. In the other version, Preston said that he and the three other people were waiting for a phone call from Boonlack Chanpheng, an "older homie." When the group received the call from the "older homie" they went to a meeting point and "snatched" the witness. In both versions, Preston said that he and his group used a blue Honda Accord that did not belong to him.
At the preliminary hearing, Witness 8 testified that Preston never told him the name of the "older homie." At trial, Witness 8 said that he got the name "Boonlack Chanpheng" from the paperwork in his own case.
According to Witness 8, Preston told the brothers to blindfold and gag Vutha with a sock. When they reached a parking lot in Bodega Bay, Preston pulled out his .9 millimeter gun and gave it to Russell. Russell was reluctant to shoot, but Preston told him to " 'stop acting like a bitch and handle that.' " Russell " 'emptied the clip' " firing 18 shots at Vutha. Preston retrieved the gun, wiped off the prints, and then threw it in the ocean. As they were leaving the parking lot, a park ranger pulled them over. Preston told everyone to say they were returning from a party in Bodega Bay.
A test of the socks that were recovered did not reveal any evidence of saliva.
Witness 8 admitted that he had read newspaper accounts of the crime. Initially, he was unsure whether he had learned certain details of the crime from those accounts. Specifically, he was unable to recall if Preston had told him about throwing the gun in the ocean, or if he had read about it in the newspaper. However, after a lunch break and having his recollection refreshed with his prior testimony, Witness 8 maintained that Preston did not specifically tell him that he threw the gun in the ocean. Rather, Preston told him that the police found the gun used for the shooting in the ocean in Bodega Bay. Witness 8 further claimed that he did not tell police anything based on what he had read in the newspaper. E. Defense
The defense did not present an affirmative case. However, without objection, the defense marked as exhibits 12 articles from the Santa Rosa Press-Democrat during closing argument. Defense counsel utilized the exhibits as part of her argument that Witness 8 fabricated his account, and obtained case information from either the newspaper or talking with someone else.
David Prak also presented evidence of positive behavior during and after his probation in connection with a prior offense.
III. DISCUSSION
A. Marital Privilege
Defendants contend their convictions must be reversed because the trial court erroneously applied the marital communications privilege (Evid. Code, § 980) to exclude evidence that Vutha voluntarily got in the Honda. Defendants claim they needed this evidence to refute the implication that Vutha was kidnapped and, perforce, defend against the kidnapping charge, kidnapping special circumstance, and felony murder charge. This claim is meritless.
1. Background
At trial, evidence was presented that Witness 2 had been with Vutha shortly before Vutha was killed. Witness 2 considered Vutha to be a "real friend." But while testifying, Witness 2 claimed a complete lack of memory regarding whether he was with Vutha or Tyrone Tay on the night of Vutha's murder. Witness 2, along with his wife (Witness 3) and his brother-in-law (Witness 4), who also claimed memory loss, were declared evasive witnesses by the trial court.
The prosecutor elicited evidence that Witness 2 phoned Witness 4 at 12:22 a.m. on March 2, 2008, and said, " 'They got Vutha.' " The prosecutor also sought admission of Witness 3's statements made during a police interview. In this interview, Witness 3 said that Witness 2 came home at 2:30 a.m. on March 2, 2008, with a bruise near his right eye, and told her, "They took Vutha." Witness 3 told the police that Witness 2 said he was hit while "they were grabbing Vutha." One of the investigators asked Witness 3 if her husband ever explained anything to her about the "circumstances of when Vutha was taken" from the car. Referencing a conversation she had with him after Vutha's funeral, Witness 3 replied: "No . . . [¶] All he kn[ew] he just woke up, and they were standing right there, and they told him to get up and they told them to get out of the car, and they said go home . . . and he said no, no . . . And he said Vutha wanted to go, you know, out and talk to those guys one-on-one, and [Witness 2] said, no. And then I guess [Vutha] got out."
Appointed counsel for Witness 2 asserted the marital communications privilege, seeking to bar the statements Witness 2 allegedly made to Witness 3 regarding the facts of this case. The trial court ruled that the marital privilege applied.
2. Legal Principles
Evidence Code section 980 provides, in pertinent part: "Subject to Section 912 [waiver of privilege by disclosure] and except as otherwise provided in this article, a spouse . . . whether or not a party, has a privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he claims the privilege and the communication was made in confidence between him and the other spouse while they were husband and wife."
Evidence Code section 917, subdivision (a), provides: "(a) If a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of the lawyer-client, . . . physician-patient, psychotherapist-patient, clergy-penitent, husband-wife, sexual assault counselor-victim, domestic violence counselor-victim . . . relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential."
"As a general matter, the claimant of the confidential marital communication privilege has the burden to prove, by a preponderance of the evidence, the facts necessary to sustain the claim. [Citation.] He is aided by a presumption that a marital communication was made in confidence. [Citation.] The opponent has the burden to prove otherwise [citation] by a preponderance of the evidence [citation]." (People v. Mickey (1991) 54 Cal.3d 612, 655.) "[A] ruling on a motion . . . [to exclude evidence under Evidence Code section 980], which concerns the admissibility of evidence, is subject to review for abuse of discretion. [Citation.] The underlying determinations, of course, are scrutinized in accordance with their character as purely legal, purely factual, or mixed." (Id. at p. 654.)
The relevance of the excluded statements related to the kidnapping charge, kidnapping special circumstance, and felony murder theory of murder, which was predicated on kidnapping. In order to establish a kidnapping under section 207, subdivision (a), the prosecution must prove " '(1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person's consent; and (3) the movement of the person was for a substantial distance.' [Citation.]" (People v. Bell (2009) 179 Cal.App.4th 428, 435.) " '[W]here the victim has at first willingly accompanied the accused, the latter may nevertheless be guilty of kidnaping if he subsequently restrains his victim's liberty by force and compels the victim to accompany him further.' " (People v. Camden (1976) 16 Cal.3d 808, 814.)
3. Discussion
Defendants make a variety of arguments intended to show the trial court erred by excluding Witness 2's statements to Witness 3 because they were privileged. Defendants' ultimate objective is to demonstrate that the jury should have heard Witness 2's statement to Witness 3 that "Vutha wanted to go, you know, out and talk to those guys one-on-one," which they claim would have shown that Vutha left with defendants voluntarily and, therefore, was not kidnapped. Although the prosecution also sought admission of the statements, the Attorney General argues on appeal that the statements were properly excluded. We address defendants' contentions in seriatim.
(a) A confidential communication was at issue.
First, defendants contend the marital communications privilege did not apply to Witness 2's statement to Witness 3 that "They took Vutha" because it was not a confidential communication in light of Witness 2's earlier statement to Witness 4, his brother-in-law, that "They got Vutha." Defendants further claim that since Witness 2's statement that "They took Vutha" was not privileged, they were entitled under Evidence Code 356 to introduce additional statements Witness 2 made to Witness 3 after Vutha's funeral regarding the surrounding circumstances of the March 2 incident, including the statement that "Vutha wanted to go . . . out and to talk to those guys one-on-one . . . ."
"To make a communication 'in confidence,' one must intend nondisclosure . . . ." (People v. Mickey, supra, 54 Cal.3d at p. 654.) "While a communication between a husband and wife is presumed to be confidential, if the facts show that the communication was not intended to be kept in confidence, the communication is not privileged." (People v. Gomez (1982) 134 Cal.App.3d 874, 879.)
Here, there was no evidence that Witness 2's conversation with Witness 3 occurred in the presence of others, or that Witness 2 shared the substance of the conversation at a later time. The only evidence of a supposed lack of confidentiality put forth by defendants is Witness 2's prior statement to Witness 4 that "They got Vutha." The marital communications privilege, however, protects the transmission of information, even if the substance of the communication has been revealed in other ways. (See Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 735 ["because the privilege protects the transmission of information, if the communication is privileged, it does not become unprivileged simply because it contains material that could be discovered by some other means"].) As such, it was within the trial court's discretion to conclude that Witness 2's statement to Witness 4 did not rebut the presumption of confidentiality that attached to Witness 2 and Witness 3's conversation.
Defendants reliance on People v. Cleveland (2004) 32 Cal.4th 704 to support their argument about non-confidentiality is misplaced. In Cleveland, the defendant argued that a statement to his wife (introduced through his wife's testimony) that he was at the motel where the murders were committed should have been excluded because it was privileged. (Id. at p. 744.) Our supreme court held the statement was admissible because other evidence showed that the defendant did not intend to keep his statements to his wife confidential; he later made similar statements to other people in the presence of his wife, and also made a similar statement to a police detective. (Ibid.) Here, there is no evidence that anyone was present during Witness 2's conversation with Witness 3, or that Witness 2 later revealed the substance of his conversation to law enforcement or any other person.
Even were we to conclude that Witness 2's statement that "They took Vutha" was not privileged, we disagree with defendants' contention that Witness 2's later statement that "Vutha wanted to go, you know, out and talk to those guys one-on-one," should have been admitted under Evidence Code section 356. Section 356 provides: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; . . . when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence." "The purpose of Evidence Code section 356 is to avoid creating a misleading impression. [Citation.] It applies only to statements that have some bearing upon, or connection with, the portion of the conversation originally introduced." (People v. Samuels (2005) 36 Cal.4th 96, 130.)
Defendants maintain that without Witness 2's statement that Vutha wanted to talk to his assailants one-on-one, Witness 2's earlier statement that "They took Vutha" gives the misleading impression that Vutha was taken to Blind Beach involuntarily. We disagree. The later statement showed, at most, that Vutha voluntarily exited the car to talk to his assailants. But it cannot be construed to show that Vutha agreed to go anywhere with his assailants, much less to a beach several miles away in the middle of the night. A trial court does not abuse its discretion by refusing to admit statements from one conversation to explain statements from an earlier conversation where, as here, the later conversation is not necessary to clarify the earlier statements. (People v. Williams (2006) 40 Cal.4th 287, 319; Simons, Cal. Evidence Manual (2016) § 1.16, p. 22.)
(b) Witness 2 did not waive the privilege by partial disclosure.
Defendants contend that even if the marital communications privilege applied to Witness 2's "They took Vutha" statement to Witness 3, Witnesses 2 waived the privilege by earlier telling Witness 4 "They got Vutha." Defendants further argue that this waiver extended to all statements on the same subject matter, including Witness 2's statement to Witness 3 that Vutha wanted to talk to his assailants one-on-one.
The marital communications privilege is waived if the holders of the privilege, without coercion, have "disclosed a significant part of the communication" or have "consented to disclosure made by anyone." (Evid. Code, § 912, subd. (a); see People v. Von Villas (1992) 11 Cal.App.4th 175, 223 [marital communications privilege waived by couple "speaking very loudly to one another" in prison visiting area because they knew or should have known third parties were present].) In Lohman v. Superior Court (1978) 81 Cal.App.3d 90, a case analyzing the attorney-client privilege, the appellate court held that a petitioner did not waive the privilege for communications with her attorney, John Burroughs, even though she testified about privileged communications she had with her previous attorneys. (Id. at p. 97.) The court reasoned that "if the client discloses certain facts to a third person and subsequently advises his attorney of those same facts in the form of a confidential communication, there has been no waiver since, obviously, the client had not disclosed to the third person the confidential communication to the attorney, i.e., had not disclosed that certain information had been communicated to the attorney. It follows then that, assuming petitioner waived her privilege as to all confidential communications with her attorneys prior to Burroughs, she did not waive her privilege as to her communications with Burroughs during his representation of her even though what she told Burroughs related to the same subject matter or was identical to what she told her prior attorneys." (Ibid.)
The marital communications privilege is not waived unless both spouses waive the privilege. (Evid. Code, § 912, subd. (b).) There is no dispute Witness 3 waived the privilege by disclosing her communications with Witness 2 to law enforcement. Only Witness 2's waiver is at issue.
That same rationale applies here. Witness 2's statement to Witness 4 that "They got Vutha" could not have disclosed any part of his statements to Witness 3 because the statements to Witness 3 came later. As such, the earlier statements to Witness 4 could not have waived privilege of the later statements to Witness 3.
Because we find no waiver, we need not address defendants' contention that the waiver extended to Witness 2's statement to Witness 3 that Vutha wanted to exit the car and talk to his assailants.
(c) Witness 2's statements were not admissible as prior inconsistent statements.
Defendants also argue the privilege was waived by Witness 2's evasive testimony about the night of Vutha's murder, which entitled defendants to introduce evidence of Witness 2's prior inconsistent statements, including Witness 2's statement to Witness 3 that Vutha wanted to exit the car and talk to his assailants.
" 'A statement by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted in the statement under the conditions set forth in Evidence Code sections 1235 and 770.' [Citation.]" (People v. Cowan (2010) 50 Cal.4th 401, 462, fn. omitted.) "[A] witness's deliberate evasion of questioning can constitute an implied denial that amounts to inconsistency, rendering a prior statement admissible under Evidence Code section 1235." (People v. Cowan, supra, 50 Cal.4th at p. 463.) Whether evidence of a prior inconsistent statement should have been admitted is reviewed for abuse of discretion. (Id. at p. 462.)
Evidence Code section 1235 provides: "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770." Evidence Code section 770 in turn provides: "Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action."
According to defendants, "[o]nce a witness testifies on a subject, he is subject to impeachment if there is evidence his testimony was false. If the impeachment material is in statements that would otherwise have been subject to a privilege, the privilege yields." But the authorities defendants cite do not support such a broad proposition. Instead, they hold that the introduction of prior inconsistent statements that are otherwise privileged is permissible only after the witness puts the privileged statements in issue while testifying. For example, in People v. Schader (1969) 71 Cal.2d 761, the California Supreme Court held that when a defendant testifies on his own behalf, the privilege against self-incrimination does not preclude the prosecution from "introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them." (Id. at p. 770.) Similarly, in State v. Harrod (2001) 200 Ariz. 309 , cert. granted and judgment vacated on other ground Harrod v. Arizona (2002) 536 U.S. 953, the Arizona Supreme Court held that "where a witness testifies about otherwise privileged marital communications, or denies having relevant communications with his spouse, he waives the marital communications privilege with respect to those communications and may be impeached by his spouse's testimony." (State v. Harrod, supra, 200 Ariz. at p. 317.) And, in State v. Gore (Minn. 1990) 451 N.W.2d 313, the Minnesota Supreme Court held that once the defendant testified about his suicide attempt, the physician-patient privilege no longer applied to information acquired by the physician relating to the suicide attempt. (Id. at p. 318.)
Here, in contrast to the defendants in the preceding cases, Witness 2 did not put his statements to Witness 3 in issue while testifying. He never testified about what he told Witness 3. Nor did he deny talking to Witness 3 about the murder of Vutha. The trial court acted within its discretion in not admitting Witness 2's statements to Witness 3 as prior inconsistent statements.
(d) There were no federal or state constitutional errors.
Defendants contend that even if the court correctly determined that the marital communications privilege applied, application of the privilege violated several constitutional rights afforded to criminal defendants. We disagree.
First, defendants argue that exclusion of the statements violated their right to confront and cross-examine witnesses. The federal and state constitutions guarantee criminal defendants the right to confront the prosecution's witnesses. (Davis v. Alaska (1974) 415 U.S. 308, 315; People v Chavez (1980) 26 Cal.3d 334, 353.) " 'However, not every restriction on a defendant's desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citation.] California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced 'a significantly different impression of [the witnesses'] credibility' [citation], the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment.' [Citation.]" (People v. Carpenter (1999) 21 Cal.4th 1016, 1051.) Here, the trial court could easily conclude that Witness 2's statements to Witness 3 had little relevance. Witness 2's statement to Witness 3 that "They took Vutha" was duplicative of his statement to Witness 4 that "They got Vutha." And the inference defendants urge us to draw from Witness 2's statement that Vutha wanted to talk to his assailants is speculative and unfounded. It does not show that Vutha consented to being taken to Blind Beach but, at most, shows he wanted to talk to his assailants before he was taken by them.
Next, defendants argue that exclusion of Witness 2's statements to Witness 3 violated his right to present a complete defense. "As a general matter, the '[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense.' [Citation.]" (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) "Although completely excluding evidence of an accused's defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense." (Id. at p. 1103.) Defendants were not completely precluded from presenting evidence that Vutha agreed to go to Blind Beach with his assailants. Significantly, they presented evidence that Vutha was acquainted with the Asian Boyz and socialized with them prior to the attack on his brother Terry. They also presented evidence showing that even after the attack on Terry, Vutha had met with defendant Khaoone voluntarily to discuss problems their families were having. Defendants' inability to present additional, speculative evidence did not violate their right to present a defense.
Finally, defendants claim their right to compulsory process of witnesses was violated when the trial court excluded Witness 2's statements to Witness 3. Defendants, however, have not explained how they were prevented from calling any witnesses on their own behalf, which is the right protected by the compulsory process clauses of the federal and state constitutions. (People v. Jacinto (2010) 49 Cal.4th 263, 268-269.) Their focus is on the admission of out-of-court statements made by a witness and, as we explained, the trial court's exclusion of that evidence did not violate defendants' rights to confront witnesses or present a defense.
(e) Any error was harmless.
Even if we were to conclude the trial court erred in excluding Witness 2's statements to Witness 3, we would find the error harmless under either Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), or People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
Defendants claim that Witness 2's statement that he wanted to exit the car and talk to his assailants was "of huge importance, and its exclusion was devastating" to their defense because it showed Vutha voluntarily accompanied his assailants to Blind Beach. Without the statement, defendants claim they "had little to directly refute the charge of kidnapping—and with kidnapping came felony-murder based on kidnapping plus a kidnapping special circumstance." But, as discussed, Witness 2's statement that Vutha exited the car to talk to his assailants cannot reasonably be construed to mean that Vutha voluntarily accompanied his assailants to Blind Beach. This is particularly true when Witness 2's statements to Witness 3 are considered in their entirety. In addition to his statement that Vutha wanted to talk to the assailants, Witness 2 also told Witness 3 that the assailants demanded Vutha exit the car, and that he cautioned Vutha not to leave the car. Witness 2 also told Witness 3 that when Vutha exited the car, there was an ensuing struggle in which the assailants grabbed Vutha, and that Witness 2 was trying to protect Vutha. When Witness 2 returned home approximately two hours after the incident, Witness 3 observed that Witness 2 was crying and had a bruise around his eye. Considered in this context, Witness 2's statements to Witness 3 indicate that the assailants demanded that Vutha exit the car, that Vutha yielded to the demands despite Witness 2's warnings, and that after a struggle, the assailants took Vutha without his consent.
An abundance of other evidence also showed that Vutha did not consent to being taken to Blind Beach by his assailants. After Terry testified against the Khaoone brothers at a preliminary hearing, Vutha, Terry, and other family members were moved out of Sonoma County as part of a witness relocation program. Although Vutha would return to Sonoma County on his own volition, it is unlikely that the jury would believe he accompanied defendant Khaoone and three other Asian Boyz members to a remote beach in the early hours of the morning. Indeed, the evidence from Blind Beach and nearby indicated that Vutha was taken there against his wishes. His shirt was torn and pulled up around his neck, his shoes and socks were removed , and his keys were found almost 10 miles from Blind Beach. This evidence belies any assertion that Vutha agreed to go to Blind Beach.
As against defendant Khaoone, there was additional evidence showing a lack of consent via the testimony of Witness 8, who explained that Khaoone recounted how he and three other people "snatched" Vutha, blindfolded and gagged him, then took him to Bodega Bay.
In sum, even if the trial court erred in excluding Witness 2's statements to Witness 3, it is not reasonably probable that a result more favorable to defendants would have been reached absent the error. (Watson, supra, 46 Cal.2d at p. 836.) The error also would have been harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at pp. 23-24.) B. Conspiracy
Defendants make several challenges to a jury instruction regarding an uncharged conspiracy, claiming it tainted the instructions for two of the theories of first-degree murder.
The trial court instructed both juries on three theories of first-degree murder: (1) premediated and deliberated murder; (2) natural and probable consequences, based on a target crime of assault with force likely to produce great bodily injury; and (3) felony murder, with a predicate felony of kidnapping. The trial court also instructed on an uncharged conspiracy to commit assault with force likely to produce great bodily injury or murder. The jury was instructed pursuant to CALCRIM No. 548 that it must agree defendants committed murder under at least one of the theories, but that it did not have to agree on the same theory. The jury convicted each defendant of first degree murder without specifying which theory or theories were the bases of the convictions.
Defendants argue the conspiracy instruction was erroneous because it "failed to require proof of an express intent to kill, thereby omitting an essential element of conspiracy to commit murder[.]" In addition, they argue the conspiracy instruction was erroneous because it allowed the jury to base conspiracy liability on an overt act by Tyrone Tay without finding he was a member of a conspiracy to assault or murder Vutha. They also maintain that the conspiracy instruction was erroneous because it allowed the jury to convict defendants of first degree murder without finding the murder was a natural and probable consequence of an assault with force likely to produce great bodily injury.
In a supplemental brief, defendant Khaoone makes an additional argument: that under People v. Chiu (2014) 59 Cal.4th 155, the trial court erred by instructing the jury that it could convict defendants based on a theory that murder was a natural and probable consequence of a conspiracy to commit assault with force likely to cause great bodily injury. He further contends this error was "exacerbated" by the CALCRIM No. 548 instruction on non-unanimity of murder theory.
We need not determine the merits of defendants' arguments because even if defendants are correct, any error in the challenged instructions would be harmless. When a trial court instructs a jury on multiple theories of guilt, one of which was legally correct and the other(s) legally incorrect, reversal is not required if there is a basis in the record to find that the verdict was based on the valid ground. (People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129.) Here, it is clear that the first-degree murder convictions were based on the felony murder theory. The jury convicted defendants of kidnapping. It also found true the special circumstance of intentional murder while engaged in the commission of a kidnapping. Once the jury convicted defendants of kidnapping and found true the special circumstance, a felony murder conviction was essentially automatic. (See § 189 [listing kidnapping as predicate crime of first-degree felony murder]; People v. Chun (2009) 45 Cal.4th 1172, 1182 ("First degree felony murder is a killing during the course of a felony specified in section 189[.]") As such, any errors relating to instructions on the other theories of murder were not prejudicial. C. Admission of Text Messages
Defendants argue that the trial court erred in admitting text messages between Boonlack Chanpheng and Tyrone Tay under the co-conspirator exception to the hearsay rule. (Evid. Code, § 1223.) According to defendants, there was no evidence that either Chanpheng or Tay was participating in a conspiracy to assault or to kill Vutha Au at the time the text messages were exchanged.
1. Background
In pretrial proceedings, the prosecutor sought to admit text messages between Chanpheng and Tay during the period of time prior to Vutha Au's murder. The messages started at approximately 11:48 p.m. on March 1, 2008 and ended at 12:08 a.m. on March 2, 2008. The prosecutor also sought to admit records of phone calls from Chanpheng, Preston Khaoone, and David Prak. The evidence was comprised of the following:
11:48p.m. text from Chanpheng to Tay: " 'a cuz dat nigga n ur car gots 2 go cuz. I think crip ben lookn 4 hm.' "
11:49 p.m. text from Tay to Chanpheng: " 'Fo realz? No wonder he dont wanna get out.' "
11:50 p.m. text from Chanpheng to Tay: " 'duh cuz I didnt want 2 say n e thang cuz its in frnt of my pad.' "
11:51 p.m. text from Tay to Chanpheng: " 'Ma bad. I aint know that shit cuz. Im jus leave him in petaluma then.' "
11:52 p.m. text from Chanpheng to Tay: " 'we bot 2 fuc hm up cuz . . . me get word frm crip 1st.' "
11:53 p.m., Preston Khaoone received a telephone call from Chanpheng.
11:54 p.m. text from Tay to Chanpheng: " 'Aint trippin. I dunno him. Only thing is we gone b in petaluma.' "
11:55 p.m. text from Chanpheng to Tay: " 'Folow me ait.' "
11:56 p.m. text from Tay to Chanpheng: " 'Yeah.' "
11:57 p.m. text from Chanpheng to Tay: " 'just let dem we going 2 seven.' "
"Club 7" was the name of a nightclub.
11:59 p.m. call from David Prak to Chanpheng.
12:06 a.m. text from Chanpheng to Tay: " 'Make sure dat nig aint on da phne.' "
12:07 a.m. text from Tay to Chanpheng: " 'dont think so.' "
12:08 a.m. text from Chanpheng to Tay: " 'ait go 2 123.' "
Santa Rosa Billiards was called "123" and was located across the street from Club 7.
12:08 a.m. call from Chanpheng to Khaoone that lasted about a minute.
The prosecutor argued that the text messages were admissible under the co-conspirator exception to the hearsay rule (Evid. Code, § 1223) and were also admissible as statements of then-existing mental state (Evid. Code 1250), as well as declarations against interest (Evid. Code, § 1230). All four defendants challenged the admissibility of the text messages. After taking the issue under submission, the trial court ruled the text messages were admissible under the co-conspirator exception to the hearsay rule (Evid. Code, § 1223).
Defendant David Prak filed a written in limine motion to exclude the challenged evidence. At the hearing on the motion, the other defendants verbally argued the evidence should not be admitted.
2. Analysis
We review the trial court's rulings on the admissibility of evidence under the deferential abuse of discretion standard. (People v. Paniagua (2012) 209 Cal.App.4th 499, 519.) If the ultimate result arrived at by the trial court is correct on any theory of the law relevant to the case, it must be affirmed. (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329; Day v. Alta Bates Medical Center (2002) 98 Cal.App.4th 243, 252, fn. 1.)
Defendants contend that the text messages should not have been admitted, particularly the messages from Chanpheng to Tay where he indicates that Vutha " 'gots 2 go cuz. I think crip ben lookn 4 hm,' " and the one where he says " 'we bot 2 fuc hm [Vutha] up cuz . . . me get word frm crip 1st.' " According to defendants the messages were inadmissible under the co-conspirator exception to the hearsay rule because there was no evidence that either Chanpheng or Tay was participating in a conspiracy to harm Vutha at the time they exchanged the texts. Defendants claim that the admission of the statements was prejudicial because they were highly inflammatory and referred to frequently by the prosecutor during closing argument.
The Attorney General counters this by asserting that the challenged statements were not hearsay in the first place because they qualified as acts or declarations of the conspiracy itself. (People v. Herrera (2000) 83 Cal.App.4th 46, 64 ["The acts and declarations constituting the conspiracy agreement itself are admissible as 'part of a transaction' which is in issue and are, therefore, outside the hearsay rule"].) The Attorney General argues that if the statements were hearsay, they were admissible under either the co-conspirator exception or the state-of-mind exception to the hearsay rule.
We agree with defendants that the messages before Chanpheng's 11:53 phone call to Khaoone were not admissible under the co-conspirator exception, including the messages from Chanpheng to Tay stating that Vutha " 'gots 2 go cuz. I think crip ben lookn 4 hm,' " and " 'we bot 2 fuc hm [Vutha] up cuz . . . me get word frm crip 1st.' " Hearsay statements by co-conspirators may be admitted against a party under Evidence Code section 1223 if three preliminary facts are established: "(1) that the declarant was participating in the conspiracy in question at the time of the declaration, (2) that the declaration furthered or was meant to further the conspiracy's objective, and (3) that the party against whom the evidence is offered was—at the time of the declaration—participating in the conspiracy, or would later participate in it." (People v. Clark (2016) 63 Cal.4th 522, 562.) "The party offering the co-conspirator statements is required to present 'independent evidence to establish prima facie the existence of . . . [a] conspiracy.' (People v. Leach [(1975)] 15 Cal.3d [419,] at p. 430.)" (People v. Clark, supra, 63 Cal.4th at p. 562 [conspiracy requires evidence that parties came to mutual understanding to commit crime].) Here, there was no evidence that Chanpheng was conspiring with anyone to harm Vutha prior to calling Khaoone. The messages themselves indicate that he had not talked to Khaoone about harming Vutha, and that Tay was unaware of any plan to harm Vutha.
Nevertheless, we conclude that Chanpheng's messages prior to calling Khaoone at 11:53 p.m.were admissible as statements of an existing mental state (Evid. Code, § 1250). Evidence Code section 1250 provides that evidence of a declarant's then-existing state of mind, "including a statement of intent, plan, motive, [or] design[,]" is admissible to prove that state of mind or "to prove or explain acts or conduct of the declarant." (Evid. Code, § 1250, subd. (a)(2).) Importantly here, "[t]he Supreme Court has consistently allowed such evidence to prove the state of mind of the declarant, as well as the declarant's confederates." (People v. Han (2000) 78 Cal.App.4th 797, 806.) Chanpheng's texts fall within this exception because they show his intent to harm Vutha (e.g. "we bot 2 fuc hm up"), and his intent to conspire with Khaoone to harm Vutha (e.g. "me get word from crip 1st"). The texts were admissible to show Chanpheng's state of mind. They were also admissible to show his "confederates" states of mind, since Khaoone (i.e. "Crip") was mentioned in the texts, and the other defendants were other Asian Boyz gang members who were apprehended in the same car as Khaoone. (Ibid.)
Our Supreme Court's opinion in People v. Morales (1989) 48 Cal.3d 527, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 458-459, is directly on point. In Morales, the trial court admitted a hearsay statement by Ricky Ortega that revealed his plan to kill Randy Blythe and Terri Winchell, and that he expected defendant to help him with the killings. (People v. Morales, supra, 48 Cal.3d at p. 551.) The Supreme Court held the statement was inadmissible under the co-conspirator exception because there was no evidence at the time of Ortega's statement, which was made five months prior to the murder, that he was conspiring with anyone to murder the victim. (Id. at pp. 552-553.) However, the court held the same statement was admissible under Evidence Code section 1250 to show whether both Ortega and the defendant conspired to commit murder: "Ortega's admitted plan to kill Blythe, his stated assumption or expectation that defendant would help or encourage him in doing so, and his remark that if Winchell were present she would 'get it too,' in the aggregate were probative of the question whether the two men later conspired to kill Winchell." (Id. at p. 552.) Likewise here, Chanpheng's statement is admissible to show whether he and the other defendants conspired to harm Vutha.
As to the text messages occurring after Chanpheng's 11:53 p.m. call to Khaoone, we conclude they are admissible under the co-conspirator exception because Chanpheng's phone call to Khaoone, when considered with other evidence, established prima facie the existence of a conspiracy after the 11:53 p.m. call. Evidence is sufficient to make a prima facie showing of a conspiracy " 'if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy.' " (People v. Clark, supra, 63 Cal.4th at p. 562.) Chanpheng's messages prior to the 11:53 p.m. call to Khaoone indicate he wanted to conspire with Khaoone to harm Vutha. And the call itself, along with evidence that Khaoone was involved with other Asian Boyz members in Vutha's killing, are evidence Khaoone conspired with Chanpheng to harm Vutha. Because there was evidence of a conspiracy after the 11:53 p.m. call, Chanpheng's messages after the call were admissible.
Tay's messages after the 11:53 p.m. call were admissible under the co-conspirator exception, as well, since there was a prima facie showing that Tay was also a part of the conspiracy following the 11:53 p.m. call. Tay received additional messages from Chanpheng after the 11:53 call, then shortly thereafter drove Vutha to the pool hall in Santa Rosa, which set in motion the events leading to Vutha's killing.
In sum, Chanpheng's messages prior to calling Khaoone at 11:53 p.m. were admissible statements of intent. And both his and Tay's messages after the 11:53 p.m. call were admissible under the co-conspirator exception. The trial court did not err by admitting these messages. D. Instruction Regarding In-Custody Informant
Defendant Khaoone argues that the trial court erred by failing to sua sponte instruct the jury that the testimony of an in-custody informant must be corroborated. (§ 1111.)
At the time of trial, Witness 8, who testified regarding various statements made to him by Khaoone in jail, was in custody. The trial court instructed the jury that Witness 8 was an in-custody informant and, in the language of CALCRIM No. 336, "The testimony of an in-custody informant should be viewed with caution and close scrutiny. In evaluating such testimony, you should consider the extent [to] which it may have been influenced by the receipt of[,] or expectation of[,] any benefit from the party calling the witness. [¶] This does not mean that you may arbitrarily disregard such testimony, but you should give it the weight to which you find it to be entitled in the light of all the evidence in the case."
The trial court's instruction did not inform the jury that the testimony of an in-custody informant must be corroborated. That requirement is contained in section 1111.5, subdivision (a), which went into effect on January 1, 2012—before the commencement of trial in the present case. (See People v. Davis (2013) 217 Cal.App.4th 1484, 1488-1489 (Davis); see also People v. Huggins (2015) 235 Cal.App.4th 715, 718-719.) That section reads 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 August 2012, after the verdicts were rendered in this case, CALCRIM No. 336 was updated to read, in relevant part, as follows: "View the (statement/ [or] testimony) of an in-custody informant against the defendant with caution and close scrutiny. In evaluating such (a statement/ [or] testimony), you should consider the extent to which it may have been influenced by the receipt of, or expectation of, any benefits. This does not mean that you may arbitrarily disregard such (a statement/ [or] testimony), but you should give it the weight to which you find it to be entitled in the light of all the evidence in the case. [¶] . . . [¶] You may use the (statement/ [or] testimony) of an in-custody informant only if: [¶] 1. The (statement/ [or] testimony) is supported by other evidence that you believe; [¶] 2. That supporting evidence is independent of the (statement/ [or] testimony); [¶] AND [¶] 3. That supporting evidence connects the defendant to the commission of the crime[s] [or to the special circumstance/ [or] to evidence in aggravation]. The supporting evidence is not sufficient if it merely shows that the charged crime was committed [or proves the existence of a special circumstance/ [or] evidence in aggravation]. [¶] [Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime, and it does not need to support every fact (mentioned by the accomplice in the statement/ [or] about which the witness testified). On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime.]"
The Attorney General concedes that the trial court erred in not giving some instruction regarding the corroboration required by section 1111.5. We agree. Although Khaoone asserts the "guilt beyond a reasonable doubt" standard prescribed in Chapman, supra, 386 U.S. at p. 24 applies, California courts employ the reasonable probability standard of Watson, supra, 46 Cal.2d at p. 836, to court errors in failing to give a particular instruction sua sponte (People v. Breverman (1998) 19 Cal.4th 142, 178). Regarding Khaoone's particular claim here, " 'we may reverse the judgment only if we are able to say it is reasonably probable the jury would have reached a result more favorable to defendant if the trial court had instructed that before the jury could convict defendant based solely on the testimony of [the] in-custody informant, there must be evidence that corroborates that testimony, i.e., that connects defendant to the commission of the crime.' " (Davis, supra, 217 Cal.App.4th at p. 1490.)
As the current version of CALCRIM No. 336 provides, the required supporting evidence may be "slight" and need not support every fact contained in Khaoone's statements to which Witness 8 testified. Rather, the supporting evidence is required only "to connect the defendant to the commission of the crime." (CALCRIM No. 336.) Evidence that Khaoone was apprehended on a deserted road shortly after Vutha's body was discovered connected him to the murder. Additionally, the undisputed evidence established that Khaoone was a gang member, who was discovered with three known gang members, leaving the scene of the murder. This evidence connected Khaoone to the participation in a street gang count, as well as the gang enhancement. Also, the gang expert testimony that witness intimidation benefits a gang similarly connected Khaoone to the gang offense and enhancement. In the same vein, Terry Au's testimony about the offenses committed against him also connected Khaoone to the gang offense and enhancement.
Witness 2's statements that he tried to protect Vutha connected Khaoone to the kidnapping. Witness 2 had a visible bruise near his eye, which was consistent with his claim that he tried to protect Vutha from the group.
To the extent Khaoone asserts that there was no corroboration for Witness's 8 testimony that Khaoone sold drugs and that Khaoone wanted Vutha killed to prevent him from testifying in Terry's case, the required evidence did not need to support every fact contained in the statements attributed to Khaoone. (See CALCRIM No. 336.) As discussed, the supporting evidence connects Khaoone to charged offenses and enhancements. Thus, Witness 8's testimony was corroborated. Accordingly, we do not find a reasonable probability that the jury would have reached a more favorable result for Khaoone had it been properly instructed. E. Admission of Evidence Regarding Assault Weapon
Defendants David Prak and Sarith Prak contend the trial court erred in admitting the rebuttal testimony of Witness 7. After a hearing pursuant to Evidence Code section 402, subdivision (b), the trial court overruled the Praks' objection to the testimony of Witness 7 regarding his statement that two to three years before Vutha's murder, he had seen David and Sarith with an AK-47 in their garage. The Attorney General asserts there was no abuse of discretion in allowing this evidence because defendants opened the door by eliciting testimony that David and Sarith were not known to possess firearms.
1. Background
Samnang Prak testified that in March 2008, his two brothers, Sarith and David, lived with him in Santa Rosa. On cross-examination by defense counsel, Samnang testified that he had never known either of his brothers to possess a firearm. Samnang also said that there were no firearms in his home in February or March 2008.
Following Samnang's testimony, the prosecutor argued that the defense had opened the door to further testimony on the issue of whether the Prak brothers had possessed firearms. Defense counsel objected, arguing that they had not opened the door to this evidence, which made the proffered evidence inadmissible character evidence. Defense counsel also objected under Evidence Code section 352, arguing that proffered evidence was much more prejudicial than probative inasmuch as a .9 millimeter handgun was used in the charged offense, while the proffered evidence related to possession of an AK-47 assault rifle, which occurred two to three years before Vutha's murder. The court overruled the objection, ruling the evidence was being used to impeach Samnang's testimony, "because the picture was painted that these individuals don't possess weapons, don't have them at the house, never have them around . . . [T]hat's a credibility issue."
2. Analysis
Defendants argue the trial court erroneously admitted the challenged prosecution rebuttal evidence, contending the evidence was irrelevant and inadmissible under Evidence Code sections 352, 1101, and 1102. We review a trial court's evidentiary rulings under these code sections for abuse of discretion. (People v. Harris (2005) 37 Cal.4th 310, 335; People v. Gray (2005) 37 Cal.4th 168, 202; People v. Cole (2004) 33 Cal.4th 1158, 1195.)
Evidence Code section 1101 generally precludes the introduction of character evidence to prove a person's conduct on a particular occasion. (Evid. Code, § 1101, subd. (a).) Under Evidence Code section 1102, a criminal defendant may offer evidence of his character or a trait of his character "to prove his conduct in conformity with such character or trait of character" (Evid.Code, § 1102, subd. (a)), and the prosecution may offer character evidence in rebuttal (Evid.Code, § 1102, subd. (b)). If a defense witness gives character testimony about the defendant, the prosecutor may cross-examine the witness by asking if he or she has heard of acts or conduct by the defendant that are inconsistent with the witness's testimony. (People v. Ramos (1997) 15 Cal.4th 1133, 1173.) The prosecution is also free to call a rebuttal witness as to a defendant's bad character. (See, e.g., People v. McAlpin (1991) 53 Cal.3d 1289, 1313, 1315 (conc. & dis. opn. of Broussard, J.).)
Here, the prosecution's rebuttal evidence was properly admitted to attack the credibility of Samnang, who claimed he had never known his brothers to possess guns and that he did not allow guns at the house. By eliciting testimony that David and Sarith were not known to possess weapons, the Praks put their own character in issue. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1139; Evid. Code, § 1101, subd. (c).) Witness 7's rebuttal testimony that he had seen David and Sarith with an assault rifle in their garage was properly ruled admissible. (See People v. Gutierrez, supra, 28 Cal.4th at p. 1139.)
David and Sarith further argue that evidence they possessed an AK-47 should have been excluded as more prejudicial than probative since a different type of gun was used in the crime. They further contend that evidence that Witness 7 might have once seen them in possession of a firearm two to three years before the crime did nothing to rebut Samnang's testimony that he never saw his brothers with a firearm. Thus, according to defendants, "the probative value side of the Evidence Code section 352 scale was empty." We disagree.
" 'Except as otherwise provided by statute, all relevant evidence is admissible.' " (Evid. Code, § 351; People v. Zambrano (2007) 41 Cal.4th 1082, 1149, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Relevant evidence includes all evidence having any tendency in reason to prove any disputed fact that is of consequence to the determination of the action. (Evid. Code, § 210; People v. Zambrano, supra, at p. 1149; People v. Williams (2008) 43 Cal.4th 584, 633-634; People v. Wilson (2006) 38 Cal.4th 1237, 1245.) Evidence is substantially more prejudicial than probative under Evidence Code section 352 if it "poses an intolerable 'risk to the fairness of the proceedings or the reliability of the outcome' [citation]." (People v. Waidla (2000) 22 Cal.4th 690, 724.)
Here, the assault rifle evidence was relevant to the jury's determination regarding the credibility of Samnang's testimony that he had never known his brothers to possess firearms and that he did not allow firearms at the house. Contrary to defendants' arguments, Witness 7's limited testimony was not unduly prejudicial. " 'Prejudice' as contemplated by [Evidence Code] section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption ' "substantially outweigh" ' the probative value of relevant evidence, a section 352 objection should fail. (People v. Cudjo (1993) 6 Cal.4th 585, 609.) ' "The 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, 'prejudicial' is not synonymous with 'damaging.' " [Citation.]' (People v. Karis (1988) 46 Cal.3d 612, 638.) [¶] The prejudice that section 352 ' "is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." [Citations.] " 'Rather, the statute uses the word in its etymological sense of 'prejudging' a person or cause on the basis of extraneous factors. [Citation.]' " [Citation.]' (People v. Zapien (1993) 4 Cal.4th 929, 958.) In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1008-1009.)
The challenged evidence was directly relevant to impeach the testimony of Samnang. Although evidence that David and Sarik had once possessed an assault rifle was not favorable to them, it paled in comparison to the evidence implicating them in Vutha's murder. The jury was properly instructed not to be influenced by bias, sympathy, or prejudice and to conscientiously consider and weigh the evidence in applying the law and reaching its verdict.
In the interest of complete review, we note that even if we were to assume evidentiary error, any error would be harmless, whether assessed under the federal constitutional (Chapman, supra, 386 U.S. at p. 24) or state (Watson, supra, 46 Cal.2d at p. 836) standard of review. There was overwhelming evidence of defendants' guilt. (See People v. Doolin, supra, 45 Cal.4th at pp. 437-439.) F. Cumulative Error
Defendants contend the cumulative effect of the alleged errors requires reversal. (People v. Holt (1984) 37 Cal.3d 436, 458-459.) We find no error that, either alone or in conjunction with others, prejudiced defendants. (People v. Williams (2013) 56 Cal.4th 165, 201.) G. Sentencing
The trial court imposed a two-year sentence on count two for active participation in a street gang in violation of section 182.22, subdivision (a). Defendants argue, and the Attorney General concedes, under People v. Mesa (2012) 54 Cal.4th 191, 197-198, the trial court should have stayed the count two sentence because under section 654, it was error to punish defendants for the murder and kidnapping and again for committing those offenses while acting as gang members. We agree that the two-year term on count two should be stayed pursuant to section 654. H. Errors in Abstracts of Judgment
Defendants Sarith Prak and David Prak claim, and the Attorney General concedes, that there are two errors in their abstracts of judgment, as well as in the other abstracts of judgment. Specifically, the abstracts of judgment erroneously omit the enhancement under section 12022.53, subdivisions (c) and (e)(1) found true by the jury. Also, at box 6b, the abstracts of judgment erroneously refer to a 25-year-to-life term for count one, when the actual sentence imposed was life without parole. The 25-years-to-life term was already referenced in box 2, which reflects the sentence for the firearm enhancement associated with count one.
We agree that the abstracts of judgment should be corrected to include the enhancement under subdivision (e)(1) of section 12022.53 and that the reference a 25-year-to-life term for count one be removed.
IV. DISPOSITION
The sentence for count two as to each defendant is stayed under section 654. As so modified, the judgment is affirmed. We direct the clerk of the superior court to amend the abstracts of judgment accordingly, and also to include the enhancement under subdivisions (c) and (e)(1) of section 12022.53 and to remove the reference to a 25-year-to-life term for count one, and forward a certified copy of the abstracts to the Department of Corrections and Rehabilitation.
/s/_________
REARDON, J. We concur: /s/_________
RUVOLO, P. J. /s/_________
RIVERA, J.