Opinion
A164737
03-02-2023
THE PEOPLE, Plaintiff and Respondent, v. SARITH PRAK, Defendant and Appellant.
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR5321503
BROWN, ACTING P. J.
Sarith Prak 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); Stats. 2018, ch. 1015, §§ 2-3.) 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 Prak filed his petition and the trial court ruled on it. 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.
Prak was convicted of kidnapping and first degree murder, among other felonies, and the trial court at the time instructed the jury on the felony-murder theory based on the kidnapping. Prak contends the trial court erred in denying his section 1172.6 petition because the record does not contain substantial evidence that he was a major participant in the kidnapping who acted with reckless indifference to human life. We find no error in the trial court's ruling and will affirm.
BACKGROUND
We draw the relevant background of this case from our prior opinion in Prak's appeal from his conviction. (People v. Prak (Jan. 6, 2017, A136146) [nonpub. opn.].) Terry Au sold drugs for Peter Khaoone. Terry stopped selling drugs after Peter was arrested. Peter's brother, Preston, accused Terry of snitching on Peter, so Terry resumed selling drugs. Terry then stopped selling again. Two other Khaoone brothers, Perry and Pongsony, and a third individual, who was apparently named Boonlack Chanpheng, 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 that he needed to bring them $5,000 if he wanted to see Terry again. Terry escaped, and Perry, Pongsony, and Chanpheng were charged with various offenses, including kidnapping, robbery, burglary, and various gang enhancements. Terry testified at the preliminary hearing. The three individuals then pled guilty to kidnapping and the gang allegations, and Perry pled guilty to possessing a controlled substance with intent to sell. Terry, Vutha, their father, and a 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.
Prak and the Attorney General both rely on our prior opinion for the factual background of this case, rather than citing to the trial record that was admitted into evidence at the resentencing hearing. This may not be proper, given that section 1172.6 states only that the trial court in a resentencing hearing may consider the "procedural history of the case recited in any prior appellate opinion." (§ 1172.6, subd. (d)(3), italics added.) However, both parties have followed the same approach without objection, and holding this to be unacceptable would require us to reject Prak's arguments for failure to cite the proper record. (People v. DeSantis (1992) 2 Cal.4th 1198, 1227-1228.) We will therefore assume for the purposes of this appeal that reliance on our prior opinion for the factual background is acceptable.
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.
One night in March 2008, Vutha, Tyrone Tay, and another man, described in our prior opinion as Witness 2, left a party 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 going to "fuc him up." (Sic.) Chanpheng called phones associated with Preston and David Prak, who were at another gathering. Chanpheng then texted Tay and told him to drive Vutha to a location outside a pool hall in downtown Santa Rosa. Tay complied.
A group met them and took Vutha. Witness 2 tried to protect Vutha but was unsuccessful; the next morning, Witness 2 had a visible bruise near his eye.
About 1:00 a.m. that night, which was 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. 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. Deputies stopped a blue Honda near Monte Rio, about 10 miles from Blind Beach on the highway heading east towards Santa Rosa. They arrested Preston, who had been driving; Quentin Russell, who was in the front passenger seat; and Sarith and David Prak, who were in the backseat.
At the Blind Beach parking lot, deputies found 17 shell casings near Vutha's body, all of which bore markings consistent with having been fired from the same gun. Vutha's shirt had been pulled up around his neck, and his socks and shoes were on the ground close to his body, along with three dimes. At various locations along the side of the highway between Blind Beach and Monte Rio, deputies found a shirt with DNA matching Russell's, gloves, Vutha's car keys, a nine millimeter Glock, and an empty magazine designed to hold 18 rounds.
A gang expert testified that Asian Boyz was a gang whose primary activities were murder, kidnapping, drug sales, firearm possession, burglary, vehicle theft, and assaults on rival gang members. Numerous law enforcement witnesses testified that Preston, Russell, and Sarith and David Prak were active members of Asian Boyz, based on their tattoos, prior contacts with law enforcement, and admissions they had made. One law enforcement witness also identified Chanpheng as an Asian Boyz member.
Preston, Russell, Sarith, and David were charged with various felonies, including active gang participation, kidnapping, and first-degree murder. 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 (former § 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)).
The case was tried before two juries, one for Preston alone and the other for the other defendants, including Sarith. The two juries found all four defendants guilty on all counts and found the firearm enhancements and kidnapping special circumstances true. Preston's jury found the gang-related murder special circumstance true, but the other jury found it not true as to the other defendants, including Sarith. The trial court sentenced Sarith to life without parole, plus consecutive terms of 25 years 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. This court also corrected several errors in the abstract of judgment.
Preston's jury heard additional evidence that the other defendants' jury did not. Because this additional evidence was not before Sarith's jury, we ignore it for the purposes of his petition.
In 2019, Sarith 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.
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 (Strong).) 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.)
See discussion at footnote 2, ante, regarding the use of our prior opinion in this matter as establishing the factual background of Prak's offense.
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).) Subdivision (d) of section 190.2 (§ 190.2(d)) "repurposes preexisting law governing felony-murder specialcircumstance findings-the findings a jury makes in felonymurder cases to determine whether the defendant may be sentenced to death or life without possibility of parole (Pen. Code, § 190.2, subd. (d))-to define eligibility for sentencing relief." (Strong, supra, 13 Cal.5th at p. 703.) Accordingly, cases interpreting section 190.2(d), including People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), are controlling in resentencing 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.)
Banks identified a series of considerations to help guide the inquiry into whether a defendant acted as a major participant in a crime for the purposes of the felony-murder special circumstance in section 190.2(d). (Banks, supra, 61 Cal.4th at p. 803.) Those considerations are: (1) the defendant's role in planning the criminal enterprise that led to one or more deaths; (2) the defendant's role in supplying or using lethal weapons; (3) the defendant's awareness of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants; (4) whether the defendant was present at the scene of the killing, in a position to facilitate or prevent the actual murder, and whether the defendant's actions or inaction played a particular role in the death; and (5) the defendant's actions after lethal force was used. (Ibid.) Banks instructed, however, that none of these considerations is necessary or sufficient and all should be "weighed in determining the ultimate question, whether the defendant's participation 'in criminal activities known to carry a grave risk of death' [citation] was sufficiently significant to be considered 'major.'" (Ibid.)
Clark elaborated on the reckless indifference inquiry. (Clark, supra, 63 Cal.4th at pp. 618-623.) "Much as in Banks, [Clark] set out a nonexhaustive list of considerations relevant to this 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. [Citations.] Because the major participant and reckless indifference elements often' "significantly overlap"' [citation], this list of factors also overlapped with those [the Supreme Court] had identified in connection with the major participation inquiry in Banks." (Strong, supra, 13 Cal.5th at p. 706.)
We review for substantial evidence the trial court's factual findings in its ruling on Prak's section 1172.6 resentencing petition. (Guiffreda, supra, 87 Cal.App.5th at p. 125.)" '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.'" (Ibid.)
II. Analysis
Prak contends that a careful application of the Banks/Clark factors shows that the trial court's finding that he was a major participant who acted with reckless indifference in Vutha Au's kidnapping is not supported by substantial evidence. We are not convinced.
Regarding Prak's status as a major participant, he correctly points out that there is no evidence that he either planned the kidnapping or used or supplied a gun, which are the first two Banks factors. (Banks, supra, 61 Cal.4th at p. 803.) On the third Banks factor, Prak contends that there was no specific evidence that he knew of any particular danger in the kidnapping, use of weapons, or prior conduct of the others involved, but he recognizes that the gang evidence bears on this factor. According to apparently uncontradicted law enforcement witnesses, Prak was a member of the Asian Boyz gang. The primary activities of this gang included murder and kidnapping. Moreover, the trial court reasonably inferred that Vutha's kidnapping was intended to intimidate and punish his brother Terry for testifying against Perry, Pongsony, and Chanpheng. This motive for the kidnapping and murder is particularly significant for Prak because, as the trial court asserted and he does not dispute, evidence at trial showed he had previously been convicted of dissuading a witness during a gang-related murder prosecution. The trial court could reasonably deduce from this evidence that Prak would have been aware that kidnapping Vutha because of his connection to Terry and his testimony would pose a particular risk of danger to Vutha.
Prak resists this conclusion, relying on People v. Killebrew (2002) 103 Cal.App.4th 644, disapproved on other grounds by People v. Vang (2011) 52 Cal.4th 1038, 1047, fn. 3. Killebrew held that a gang expert could not testify about his belief concerning the defendant's subjective knowledge and intent to possess a gun. (Killebrew, at pp. 647, 658.) Killebrew does not assist Prak here because there is no indication that any gang experts testified directly about Prak's subjective mental state. They merely testified about the practices of the Asian Boyz gang and that Prak was a member of the gang. Killebrew itself recognized that testimony about gang practices is proper, and Vang likewise approved of drawing inferences about mental states about individual gang members based on expert testimony about gangs in general. (Killebrew, at p. 658; Vang, at p. 1047.) The trial court was entitled to draw inferences about Prak's knowledge of the risk of danger to Vutha from the expert gang testimony, as well as testimony about Prak's prior conviction for dissuading a witness.
On the fourth Banks factor, whether he was present at the killing scene and in a position to prevent the killing, Prak asserts he apparently remained in the back seat of the car and could not have stopped Vutha's murder. Nothing in the limited record that Prak cites in this appeal shows that he left the backseat, but the trial court could still reasonably infer that Prak had the opportunity to prevent Vutha's murder. The Supreme Court included the fourth factor because "[i]n cases where lethal force is not part of the agreed-upon plan, absence from the scene may significantly diminish culpability for death. [Citation.] Those not present have no opportunity to dissuade the actual killer, nor to aid the victims, and thus no opportunity to prevent the loss of life. Nor, conversely, are they in a position to take steps that directly and immediately lead to death ...." (Banks, supra, 61 Cal.4th at p. 803, fn. 5.) These considerations do not apply to Prak. Unlike the situation in which a getaway driver for a robbery waits outside a building or at a different location while a killing occurs (as in Banks, supra, 61 Cal.4th at p. 805), under Prak's own reading of the evidence, he was inside the car at the parking lot, feet away from the shooting. Prak could have stepped out of the car at any time to try to dissuade the killer.
Additionally, Prak and his co-perpetrators kidnapped Vutha and drove him for an hour to a remote, isolated location, so it is reasonable to conclude the murder was the agreed-upon plan. Prak's assistance with the kidnapping was also a step that directly and immediately led to Vutha's death. Even if being in the car could be viewed as not being at the scene, Prak could have tried to prevent Vutha's murder during the hour-long drive. While Khaoone, Russell, and David Prak outnumbered Sarith and could have been armed while he was not, the long period of time still gave Sarith a chance to try to persuade his confederates to change course. (Cf. Guiffreda, supra, 87 Cal.App.5th at p. 127 [no substantial evidence a defendant could have intervened to prevent deadly beating, where defendant was unarmed, outnumbered by confederates, and may not have known codefendant was armed, and assault began and ended within a span of minutes].)
On the final factor, conduct after the killing, Prak asserts that Prak left the scene as a passenger in the back seat of the car Preston drove back towards Santa Rosa. This is true as far as it goes, but it does not help Prak. The drive back towards town was not innocent or uneventful, since someone in the car was apparently trying to dispose of incriminating evidence by tossing it out the window of the car as it drove away from the murder scene and back towards town. More importantly, Prak points to no evidence that, for example, before driving away he checked on Vutha, took any steps to try to call for help, tried to flag down the ranger's car as it passed in the opposite direction, or tried to dissociate from his co-perpetrators. (Cf. People v. Ramirez (2021) 71 Cal.App.5th 970, 978, 990 [after an attempted carjacking defendant fled with a confederate who told the shooter that he was on his own and parted ways with him].)
Following Banks and weighing these factors together, treating none of them dispositive, we find the trial court had substantial evidentiary support for its determination that Prak's participation in Vutha's kidnapping was sufficiently significant for him to qualify as a major participant. (Banks, supra, 61 Cal.4th at p. 803.)
Substantial evidence also supports the trial court's determination under the Clark factors that Prak acted with reckless indifference to human life. As Strong noted, these factors overlap with the Banks factors to some extent. (Strong, supra, 13 Cal.5th at p. 706.) On the first factor, there is no indication that Prak used or was necessarily aware of the presence of a weapon, which supports his position. On the second factor, we have already discussed Prak's physical presence at the scene and opportunity to restrain his confederates or aid Vutha, which support the trial court's determination.
On the third factor, the duration of the crime, Vutha's kidnapping was not a sudden affair, as Prak admits. Prak apparently drove with his brother and Preston to the location in Santa Rosa specifically for the purpose of kidnapping Vutha. Prak then rode in the car next to Vutha for approximately an hour during the drive to the coast where Vutha was murdered. As Clark explained, "Where a victim is held at gunpoint, kidnapped, or otherwise restrained in the presence of perpetrators for prolonged periods, 'there is a greater window of opportunity for violence' [citation], possibly culminating in murder. The duration of the interaction between victims and perpetrators is therefore one consideration in assessing whether a defendant was recklessly indifferent to human life." (Clark, supra, 63 Cal.4th at p. 620.) This reasoning applies directly here, where there is substantial evidence that Prak was involved throughout the prolonged period of Vutha's kidnapping. This factor therefore strongly supports the trial court's finding of reckless indifference.
On the fourth factor, Prak's knowledge of any threat his coperpetrators might represent, we need not repeat our discussion of the evidence concerning the Asian Boyz gang's prior involvement in kidnapping and murder and Prak's previous involvement in dissuading a witness, which the trial court could infer was the purpose for Vutha's kidnapping and murder.
The fifth and final Clark factor concerns efforts taken to minimize the risk of violence. (Strong, supra, 13 Cal.5th at p. 706.) There was no evidence on this point, so this factor does not support Prak's request for reversal.
Again, weighing these factors together, the trial court could reasonably conclude that Prak demonstrated a reckless indifference to Vutha's life, since substantial evidence shows that Prak assisted in kidnapping and transporting Vutha for an hour to a remote and isolated location, had previous experience with dissuading witnesses, had an extended opportunity to try to persuade his confederates not to kill Vutha, was present at the scene of the shooting, took no efforts to aid Vutha after the shooting or to flag down aid for him, and took no efforts to minimize the risk of violence. Contrary to Prak's argument, the facts of this case presented a foreseeable risk of death that was greater than that inherent in any violent felony or any other kidnapping. This case is also unlike People v. Ramirez, which Prak cites, since in that case one co-perpetrator told the shooter before a carjacking that no gun was needed, the defendant was on the other side of the car when the shooter began firing unexpectedly, and the defendant's youth "greatly diminishe[d] any inference he acted with reckless disregard for human life." (People v. Ramirez, supra, 71 Cal.App.5th at pp. 988-990.)
The Attorney General contends that the evidence recited above, beyond demonstrating that Prak was a major participant who acted with reckless indifference to human life, shows he was a direct aider and abettor of the murder who shared the intent to kill. We tend to agree that the evidence could support this conclusion, given that the evidence is consistent with a targeted kidnapping and execution in retaliation for testimony against fellow gang members. But because the trial court did not deny Prak's petition on this basis and the evidence is sufficient to support the trial court's stated rationale, we need not definitively rule on this argument.
DISPOSITION
The trial court's order is affirmed.
WE CONCUR: GOLDMAN, J., WHITMAN, J. [*]
[*] Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.