Supreme Court of California Justia
Docket No. S049626M
People v. Hajek and Vo

Filed 7/23/14 Unmodified opinion attached



Plaintiff and Respondent,



Santa Clara County


Super. Ct. No. 148113


Defendants and Appellants.




The opinion herein, filed May 5, 2014, and appearing at 58 Cal.4th 1144, is

modified as follows:

On page 1161 of 58 Cal.4th, insert the underlined words at the beginning of

the second sentence of the first full paragraph: “On direct examination, Cary

testified that Vo said he could not wait that long and demanded that Cary take him

to Ellen’s school.”

This modification does not affect the judgment.

The petition for rehearing is denied.

Filed 5/5/14 Unmodified opinion



Plaintiff and Respondent,



Santa Clara County


Super. Ct. No. 148113


Defendants and Appellants.

Defendants Stephen Edward Hajek and Loi Tan Vo were convicted of the

1991 murder of Su Hung (Pen. Code, § 187)1 as to which lying-in-wait and

torture-murder special circumstances were found true (former § 190.2, subd.

(a)(15), (18)). Additionally, defendants were convicted of four counts of

premeditated attempted murder (§§ 664/187), one count of kidnapping (§ 207,

subd. (a)), three counts of false imprisonment (§§ 236/237), one count of robbery

(§ 211, 212.5, subd. (a)), and one count of first degree burglary (§§ 459, 460.1).

Hajek was separately convicted of dissuading a witness. (§ 136.1, subd. (c)(1).)

The jury also found true firearm use allegations as to Hajek and deadly or

dangerous weapon use allegations as to Vo, in their commission of the murder,


All further unlabeled statutory references are to the Penal Code.

attempted murder, kidnapping, and false imprisonment counts. (Former §§ 12022,

subd. (b), 12022.5, subd. (a).)

Following the penalty phase trial, the jury returned verdicts of death as to

each defendant, which the trial court declined to modify. The court sentenced

each defendant to death for the murder of Su Hung, and on the remaining counts,

sentenced Hajek to life plus 21 years and Vo to life plus 9 years. This appeal is


For the reasons set forth herein, we reverse the lying-in-wait special-

circumstance findings as to both defendants. (See post, pt. II.B.1.a.) We also

order that the firearm use enhancements found true as to defendant Hajek be

struck and replaced with deadly or dangerous weapon use enhancements. (See

post, pt. II.B.1.d.) In all other respects, the death judgments are affirmed.


A. Guilt Phase

On the morning of January 18, 1991, defendants gained access to the Wang

residence, where they held various members of the family hostage for several

hours.2 At some point, they killed Su Hung, the family’s 73-year-old

grandmother, who was visiting from Taiwan. The attack on the Wang family was

in retaliation for a minor altercation a few days earlier between the family’s

teenage daughter, Ellen, defendant Hajek, and a girl named Lori Nguyen, who was

a friend of both defendants. On the night before the attack, Hajek told another

friend that he was going to the house of an unidentified girl who had threatened

him. He said he planned to kill each member of her family while she watched and


For clarity, we refer to individual members of the Wang family by their

first names and to the family’s father, Chi Ching Wang, as “Tony,” the name used
at trial.


then kill her last. The next day, he and Vo went to the Wang residence, where the

events transpired that led to the charges in this case.

1. Prosecution Evidence

a. The altercation between Hajek, Nguyen, and Ellen

On January 14, 1991, between 4:30 and 5:00 p.m., Hajek and his friend,

Lori Nguyen, were sitting in front of a Baskin-Robbins store eating ice cream.

Hajek was 18 years old and Nguyen was 15 or 16. Ellen, also 16, and six friends

walked past the pair on their way to a Fry’s Electronics store. Ellen had once been

good friends with Nguyen, but they had had a falling out. She had never seen

Hajek before. One of Ellen’s friends, Tina Huynh, testified that Nguyen was

“dogging” or giving them “a dirty look” as they passed. Huynh called Nguyen a

“bitch,” and Nguyen responded in kind.

Subsequently, as Ellen and her friends crossed a parking lot, Hajek drove

up in a white van and stopped. Nguyen was in the passenger seat. She and Huynh

exchanged words and began to struggle, while Nguyen was still sitting in the car

and Huynh was standing outside. Huynh’s sister, Jacee, and then Ellen joined the

fight with Nguyen. Noticing the car’s ignition had been pulled out, Ellen yelled,

“The car is picked,” meaning it had been stolen. Hajek exited the van, picked

Ellen up, and threw her into some bushes. Ellen and Hajek cursed each other

before Hajek and Nguyen drove off.

Hajek and Nguyen went to Hajek’s house. At some point in the evening

Ellen and Hajek spoke on the phone. Ellen asked Hajek if he had a problem with

her or wanted to start something with her. The conversation ended with their

screaming obscenities at each other. Ellen testified she had no further

communication with Hajek, but Nguyen testified that Ellen made a series of

“crank calls” to Hajek that evening and threatened to have friends of hers kill him.


Nguyen testified that Hajek threatened Ellen in return and “probably” discussed

getting revenge. At some point, while Nguyen was still at Hajek’s house,

defendant Vo showed up. Vo was present when some of the crank calls from

Ellen to Hajek were made.

Vo and Hajek were very close friends and part of a group of friends that

also included Nguyen. Vo harbored intense feelings for Nguyen that she did not

reciprocate because she had a boyfriend. Hajek also had romantic feelings toward

Nguyen that she did not return.

b. Hajek’s conversation with Tevya Moriarty

On the evening of January 17, 1991, three days after the fight, Hajek

telephoned Tevya Moriarty. Moriarty and Hajek had worked together at the Home

Express during the summer of 1990. Moriarty had been on friendly terms with

Hajek, though he was not a close friend. Moriarty asked him if he was going out

with anyone. Hajek told her that he was going out with an Asian girl and that they

had been involved in a fight after getting ice cream a few days earlier. He told her

that he had pushed a girl into some bushes during the incident and that he wanted

to get back at that girl. He said he was going to go to the girl’s house and kill her

and her family. Hajek told Moriarty he planned to kill the girl’s family first and to

kill her last because he “wanted to look in her eyes when he killed her.” He also

said he was going to make the incident look like a robbery. Hajek said all this in a

conversational tone of voice. Moriarty did not believe he was really planning to

do these acts.

The next day, Moriarty saw a television report of the crimes at the Wang

residence and told her parents about her conversation with Hajek. When she

learned that Hajek was one of the culprits, she went to the police. Moriarty talked

to the police on January 21, 1991, and told them it was her impression Hajek was


going to enlist two other people to commit the murder and robbery. However, at

trial, she could not recall what in the conversation had given her that impression

and testified that Hajek spoke only of himself.

c. Hajek and Vo gain entry into the Wang residence

On January 18, 1991, the Wang family — parents Cary and Tony, and

daughters Ellen and 10-year-old Alice — lived on Silver Leaf Road in San Jose.

Also staying with them was 73-year-old Su Hung, Cary’s mother, visiting from

Taiwan. On the morning of January 18, only Su Hung and Alice were at home.

Around 10 a.m., Hajek and Vo came to the door. Alice answered it. They

told her they wanted to see Ellen because they had a sweater for her. Alice told

them Ellen was not home. Vo handed her the sweater, and they left. A few

minutes later, defendants returned. When Alice answered the door, they said they

wanted to write a note to Ellen. Alice testified she did not invite defendants inside

the house, but “[t]hey just came in.” Alice gave them a pen and paper. Su Hung

was in the kitchen. They wrote the note, and Alice put it on the sweater. They

then called Alice over, and Hajek pointed a gun at her. Hajek told Alice to get her


Alice had to use the bathroom. Alice testified Vo told her to take her

grandmother with her. When Alice and Su Hung came out of the bathroom, Vo

tied up Su Hung using rope from the laundry room, which he cut with scissors or a

knife. He then blindfolded her. Su Hung was trembling but compliant. Vo took

her upstairs while Hajek remained downstairs with Alice, watching cartoons.

Although Hajek had put the gun in his waistband, Alice was frightened. Vo came

downstairs, and then Hajek took Alice to the upstairs bathroom, where she

remained for what seemed like a long time before defendants told her she could

come out. While she was in the bathroom, she heard clattering noises, like


marbles or coins. Vo took her downstairs; 10 minutes later Hajek followed. At

some point, Alice’s mother, Cary, called the house. Alice was allowed to answer

the phone, but defendants told her to speak English.

Alice testified that Cary told her she was coming home and, as previously

planned, she was going to take Su Hung to the beauty salon, and then the three of

them would go out to lunch. Alice did not typically speak to her mother in

English, and Cary asked if anything was wrong. Alice was frightened and said no.

Sometime later, maybe a half-hour, Alice heard the garage door open. Vo went

into the downstairs bathroom after taking a knife from the kitchen. Before he

went into the bathroom, Vo told Alice to stay seated on the sofa and to try to calm

her mother down.

Cary testified that when she entered the house through the garage, Vo came

out of the bathroom, placed a hand over her mouth, and with the other hand held a

knife to her throat. Vo told Cary not to scream, or he would kill her whole family.

Both he and Hajek were wearing gloves. Cary was upset and frightened. She told

Vo to put down his knife and she would give him anything he wanted as long as

he did not hurt her family. She ended up sitting with Vo at the dining room table.

Vo told Cary he was looking for Ellen because she had had an argument with his

relative at school. At some point, Vo returned the knife to the kitchen. Alice told

her mother the men had had a gun and had pointed it at her. Hajek also told her he

had two guns, although Cary never saw a gun.

Cary repeatedly begged defendants to allow her to see her mother because

Su Hung suffered from high blood pressure. Hajek went upstairs alone, and then a

second time he went upstairs with Alice. When Alice went upstairs with Hajek,

she was not allowed to go into the room where her grandmother was being held.

She stood at the doorway and “peeked” into the room, but could only see her


grandmother’s legs. Alice reported to her mother that her grandmother was

reading a newspaper.3

d. Vo and Cary go to Ellen’s school; Tony comes home

Cary told defendants that Ellen would be home around 3:00 p.m. Vo said

he could not wait that long and demanded that Cary take him to Ellen’s school.

He told her that Ellen and his relative had had an argument at school and that he

had come to the Wang residence to teach her a lesson. He said she would know

what kind of lesson when Ellen got home. Cary testified that when Vo said this,

he “look[ed] mean.” Before they left, Cary asked if she could cancel some

appointments, a ruse to call her husband, Tony. She called Tony and told him she

needed to cancel a 1:00 o’clock appointment. Tony was surprised to hear from

her. She sounded strange to him. He asked Cary if she meant he should come

home at 1:00 o’clock. She said yes. Cary was allowed to make a second call to

her office, a travel agency, where she spoke to Sofia Kuo. She told Kuo she had to

cancel an appointment because there was an emergency at home “similar to

something that happened before.” Cary was alluding to the burglary of her house

two years earlier. She hoped the hint would alert Kuo.

Vo and Cary left in Cary’s car. Vo told her he had a gun. When they got to

Ellen’s school, Cary was told that Ellen was not there. Vo stayed at her side.

After they left the school, Cary told him she had emergency airline tickets that she

needed to drop off at her office. When they arrived at the office, Cary managed to

tell a man named Paul, who worked next door, to call the police. She and Vo then


There is some discrepancy in the testimony of Alice, Cary, and Tony about

whether Alice reported her grandmother was reading a newspaper the first time
she looked in on her, when only Cary was at home, or the second time, when both
parents were present. What is clear is that on each occasion, Alice was only
permitted a glimpse of her grandmother and did not see her face or talk to her.


drove back to the Wang residence. On the way, they passed a police car and Vo

asked her whether she had called the police. He had repeatedly threatened to kill

her family if she called the police. When they got to her house, Vo ordered her to

park in the garage.

While Cary and Vo were out, Tony had come home. He testified that when

he entered the house, he saw Alice sitting with Hajek at the dining room table

playing cards. Alice told him that defendants had guns and a knife. She also told

him he could not use the telephone or go upstairs. Hajek had one of his hands in

his pocket. Tony was scared. He sat down at the table and asked Alice where his

wife had gone. She told him Cary and another man had gone to look for Ellen.

Tony asked Hajek what he wanted. Hajek said there was a problem between Ellen

and his girlfriend. He wanted to “bring her home and then scare her.” Tony said

if there was a problem, maybe there was something they could do to solve it.

Hajek said they had to wait until Ellen was home. Tony played cards with Alice

and Hajek. Hajek kept one of his hands in his pocket. He was wearing gloves.

When Cary and Vo arrived, Tony offered defendants money and to have his

daughter apologize. One of them said there was nothing to do until Ellen came

home. Tony testified that each defendant went upstairs separately “many times,”

but he could not remember how many times or how long they remained upstairs.

At one point, Hajek again took Alice upstairs to the room where Su Hung was

being held. Alice thought she was sleeping but did not get a very clear look at her.

Hajek ordered Alice to tell her parents that her grandmother was okay.

Vo told Hajek that Tony looked very strong and Vo needed to tie him up.

Vo tied Tony’s hands behind his back, and Hajek took him upstairs to the master

bedroom. Tony asked to see his mother-in-law, but Hajek refused and said she

was fine. In the master bedroom, Hajek tied Tony to the bed. Hajek threatened to


kill Tony if he screamed. Tony was frightened. Tony asked to speak to Vo

because he thought it would be easier to talk to another Asian. Vo came into the

room and sat down by the bed. He spoke to Tony in a “very mean” way and

threatened to kill him if he yelled. Then Vo gagged him.

e. The police arrive and capture defendants; Su Hung’s body is


While Tony was being taken upstairs, a Mr. Cho called. He worked with

Paul, the man Cary had earlier told to call the police. Cary answered the phone.

Cho told her to answer yes or no and asked if she needed the police right away.

Cary said yes. A few minutes later the doorbell rang — it was the police. Hajek

told Alice to answer the door. As they walked toward it, Cary called to Alice in

Chinese and they ran into the garage. Cary opened the garage door, and they ran

to the waiting police. Cary yelled that people were still inside. She was

frightened and agitated. Hajek was apprehended in the backyard as he attempted

to flee. He was carrying what appeared to be a black revolver in his hand, but he

threw it down when he was ordered to stop and shouted, “It’s a pellet gun.” Vo

tried to run out of the house, but ran back in when a police officer pointed his

shotgun at him and told him to stop. Vo stumbled and fell, and the police

apprehended him. Vo was unarmed.

Police found Tony bound and gagged in the master bedroom. When the

gag was removed, he said he was concerned about his mother-in-law. Su Hung

was found on the floor of her bedroom, her body covered by a comforter. Her

hands were tied behind her back, her mouth was gagged, and her throat had been

slashed. The area around her was covered with blood, and she was dead.


f. Physical and medical evidence

In a neighborhood canvass, the police found a stolen minivan parked

around the corner from the Wang residence. It was later determined to have been

the vehicle defendants used. The car’s ignition switch had been removed, and

there was a screwdriver in the center console. Items found in the minivan

included packaging for a pair of leather bike gloves, a plastic grip for a pellet gun

that matched the gun Hajek threw to the ground, and two knives.

In the laundry room of the Wang residence, where Vo was arrested, police

found a brown paper bag containing five bottles of cooking oil and $278 in cash.

At the top of the stairs, police found a black bag containing items taken from

various rooms of the house.

Blood found on a glove used by Hajek was consistent with Su Hung’s

blood. A bloodstain found on Hajek’s jacket was too small for additional testing

to determine whether it was human. The serologist testified the blood on the

jacket could have been transferred from the blood on Hajek’s gloves. No

bloodstains were found on Vo’s clothing. Another pair of gloves, however, was

found on the kitchen table. A knife in the kitchen sink tested positive for blood,

but it could not be determined whether the blood was human or animal, fresh or


Dr. Angelo Ozoa, the chief medical examiner for Santa Clara County,

performed the autopsy on Su Hung. At the time of her death, Su Hung was five

feet one inch tall and weighed 87 pounds. Her death was caused by strangulation

and an incised wound to her neck. She was first strangled and then, while she was

still alive, her throat had been slashed. Ozoa could not provide a time of death.

He saw other injuries on the body in addition to the lethal injuries. There was a

recent bruise on the right side of Su Hung’s chin caused by blunt force, possibly


from a fist. There was a nonlethal stab wound to her left shoulder, one inch long

and one inch deep, which was inflicted and bled while she was still alive. The left

side of Su Hung’s chest had five “very superficial” cuts, which Ozoa indicated

could have been inflicted while she was alive, even if these cuts produced no

bleeding. He found no defensive wounds or anything that indicated a struggle.

Su Hung had been strangled with a cord and gagged with a towel. The cord

had been pulled so tight it left a furrow around her neck, and the towel was

saturated with blood. Dr. Ozoa found petechial hemorrhages — burst blood

vessels — all over Su Hung’s face, on her eyelids, and on the lining around her

eyeballs. The presence of petechiae indicated that she had been strangled before

her throat was cut and that sufficient pressure had been applied to her neck to cut

off the flow of blood from the head to the heart. Ozoa also found that the victim’s

thyroid cartilage — her Adams’ apple — had been fractured while she was being

strangled. Ozoa testified the amount of petechiae indicated she had been strangled


The incised wound on Su Hung’s neck was three and a half inches in length

and three-quarters of an inch deep. She had been cut through the trachea and the

jugular vein on the right side of her neck was also partly severed. The amount of

bleeding from the cut indicated she was still alive when it was inflicted. Dr. Ozoa

could not say how long it had taken for Su Hung to die. Nor could he say whether

she experienced extreme pain, because it was possible the strangulation had

rendered her unconscious.

2. Defendant Hajek’s Evidence

Hajek conceded his guilt of the kidnapping, false imprisonment, robbery,

burglary and dissuading a witness counts, but claimed that because he was


mentally ill before and during the commission of the crime, he did not have the

specific intent necessary for the murder and attempted murder counts.

Hajek was born in Florida in September 1972 and was abandoned by his

biological mother at birth. He was placed in a series of foster homes before Linda

and Bob Hajek adopted him when he was two years old. Hajek suffered from

physical and psychological problems at the time he was adopted. He engaged in

repetitious behavior and was very withdrawn. He sometimes went into screaming

panics when he heard loud noises such as sirens, and he sometimes banged his

head against the wall. He was afraid of being dirty and once, when he dropped

some food, he turned white and covered himself as though he feared Mrs. Hajek

was going to beat him. The Hajeks made every attempt to make Hajek feel safe

and secure. Mr. Hajek, a firefighter, resigned from the military rather than accept

a transfer to Germany that would have separated him from his wife and son. By

the time the Hajeks moved to California, when Hajek was about five, he was more

like a normal child, though he still had problems.

When he was 15 or 16, Hajek’s behavior began to deteriorate. Mrs. Hajek

described him as “explosive, angry,” and “easily frustrated.” Early in high school,

he had belonged to the ROTC, but he dropped out of it and began to surround

himself with mostly Asian friends. Hajek became so involved in Vietnamese

culture that he claimed to be Asian and would speak in what sounded like an

Asian language. Hajek also became obsessed with Japanese animation.

Around this time, Hajek was arrested for indecent exposure after he

“streaked” through his neighborhood. Hajek told his probation officer, Sally

Lowell, that he had run through his apartment complex naked to get even with a

neighbor who was always picking on him. Hajek’s parents told Lowell they

believed there was distortion in Hajek’s thought process. The police report of the


incident contained a notation that Hajek’s behavior when he was arrested — he

was volatile, profane and angry — suggested psychiatric problems. The court

ordered counseling. A psychological evaluation confirmed that Hajek had

emotional problems. The doctor who evaluated Hajek described these problems as

a lack of trust in others, pervasive loneliness, extreme sensitivity, and an inability

to express hostility in a direct manner, which led Hajek to isolate himself.

Lowell had Hajek placed in a school and counseling program. Hajek did

not complete the program because he was arrested for driving a stolen car and

being in possession of a bank card that was not his own. A third juvenile

delinquency petition was sustained after Hajek got into a fight with a coworker

and broke that boy’s nose. These arrests all occurred between March and June

1989. Lowell placed Hajek in a second program in the summer of 1989, but he

was subsequently expelled.

Dr. James Griffin, a clinical psychologist, treated Hajek from June to

December 1989. Based on the results of psychological testing, his review of

background information, and his counseling sessions with Hajek, Griffin found

Hajek to be “significantly disturbed.” Griffin testified Hajek had an impaired

sense of reality and demonstrated an inability to control his emotions, impulsivity,

difficulty relating to other people, and a low tolerance for frustration. Ultimately,

Griffin decided Hajek needed inpatient care. Griffin recommended that Hajek be

hospitalized because he was depressed, decompensating, and moving toward


Hajek was admitted to Monte Villa Hospital at the end of 1989 and

remained there until early 1990. John Hennessey, a social worker, and Dr. Dean

Freelander, a psychiatrist, both worked with Hajek and testified about his

hospitalization. Both men testified that Hajek’s behavior improved once he was


put on the drug lithium, which is used to treat bipolar disorder. While Freelander

was reluctant to diagnose Hajek with bipolar disorder because he did not meet all

the diagnostic criteria, Freelander had “no doubt” that Hajek was mentally ill and

possibly in the early stages of bipolar disorder.

Dr. Rhan Minagawa, a clinical psychologist, testified as the defense mental

health expert. Minagawa interviewed Hajek, administered psychological tests, and

reviewed material regarding Hajek’s medical, psychological, and social history as

well as the circumstances of the crime. Minagawa concluded that when the

offenses occurred, Hajek was mentally ill and suffering from a cyclothymic

disorder and a borderline personality disorder with antisocial traits. Minagawa

explained that a cyclothymic disorder is a mood disorder similar to, but not as

serious as, bipolar disorder.

According to Dr. Minagawa, people with borderline personality disorders

have several characteristics, including problems with identity, problems

developing relationships, self-destructive behaviors, and suicidal ideation.

Minagawa explained the identity problems manifested in the inability of such

individuals to “know who they are,” which would cause them to “fluctuate

between thinking they are going to be one way or another way.” In Hajek’s case,

one indication of this problem might have been his over-identification with Asian

culture to the point where he claimed to be Asian. By suicidal ideation, Minagawa

was referring to individuals with this condition “talking about suicide.” Such

people may also have transient periods of paranoid delusions. Under stress they

undergo dissociation, where they “separate themselves out of their bodies.”

Minagawa testified that Hajek’s personality disorder was primarily the result of

environmental factors. He traced Hajek’s borderline personality disorder to the

time of his birth, when his mother abandoned him, and to the disruptions in his


attachments while he was moved around in foster care during the first two and a

half years of his life.

In Dr. Minagawa’s opinion, Hajek was in a hypomanic state between

January 17 and January 21, 1991, encompassing the time just before, during, and

just after Su Hung’s murder. Therefore, according to Minagawa, Hajek’s

judgment was impaired to the point that he was acting irrationally. Minagawa’s

testimony was the basis of Hajek’s “diminished actuality” defense, in which his

attorney argued his mental illness prevented him from forming the mental states

required for murder and attempted murder.

3. Defendant Vo’s Evidence

Vo conceded his guilt of the false imprisonment counts but argued that he

had gone with Hajek only to frighten Ellen, and that Hajek alone had killed Su

Hung while he was in the midst of a manic episode. To that end, Vo presented

witnesses who testified regarding Hajek’s prior acts of seemingly impulsive

violent behavior. James O’Brien testified that when he and Hajek worked at a

Round Table Pizza, Hajek had punched the then 15-year-old O’Brien in the face,

breaking his nose, apparently because he was upset that O’Brien was getting off

work early. Douglas Vander Esch, a Santa Clara correctional officer, testified

about an episode involving Hajek at the county jail. Hajek told Vander Esch he

wanted to talk to a sergeant without disclosing why. Vander Esch told him he

would have to fill out a grievance form, which he would then give to the sergeant

for Hajek. Hajek responded by destroying various items in the day room including

a television, glass on a bulletin board, glass around a shower, a sink, a coffee pot,

and a telephone.

The bulk of Vo’s defense, however, consisted of his own testimony. Vo

testified that Hajek came to his house on the morning of January 18, 1991, and


roused him from bed. After driving to a couple of other stops, they ended up at

the Wang residence. Vo did not know Ellen. Hajek had a problem with Ellen and

wanted to talk to her. Vo testified he was “just a tag along” in case the

confrontation became hostile. Hajek said nothing to Vo about killing Ellen or any

of her family members.

Vo affirmed they entered the house on the pretext of writing a note to Ellen,

because they did not believe Alice when she said Ellen was not home. Vo

admitted taking Su Hung upstairs and tying her up because, he said, she “seemed

to be angry and hostile” and he did not want “thing[s] [to] get out of hand.”

Vo also admitted he “pulled a knife” on Cary when she came home. He

denied pressing it to her neck, testifying that he “flashed it” to “scare her” and that

he told her, “Don’t scream and no one will get hurt.” Vo claimed he made a show

of putting the knife back into the knife holder so Cary would not be frightened of

him. He also testified it was Cary’s idea to go look for Ellen at Ellen’s high


Under cross-examination by the prosecutor, Vo confirmed he and Hajek

had arrived at the Wang residence in a stolen vehicle and were wearing gloves.

He admitted Hajek had a gun and pointed it at Su Hung. Vo also confirmed that

he was at Hajek’s house after Hajek’s altercation with Ellen and that he was told

about the incident. Vo acknowledged he decided to tie up Tony because he

thought Tony “could be a problem.” According to Vo, Hajek took Tony upstairs,

and when Hajek came back downstairs, he told Vo that Su Hung was dead. Vo

testified he went upstairs to see for himself and was shocked to discover Su

Hung’s body. Vo then went to the room where Tony was being held. Tony was

“talking and talking,” so Vo gagged him. A couple of minutes later, Vo heard the


police at the door downstairs. Vo did not surrender because he was panicked and

confused. He gave the police a false name because he was afraid of the media.

Under cross-examination by Hajek’s attorney, Vo admitted he wrote

Nguyen a letter in December 1992, in which he said, among other things, “I can’t

explain my feeling towards you. It’s both hate and love. I hate you for loving you

so much . . . . When I say I love someone, I always will.” Nonetheless, Vo denied

his feelings for Nguyen motivated him to join Hajek in going to the Wang


B. Penalty Phase

1. Prosecution Evidence

The prosecution’s penalty phase case relied almost entirely on the

circumstances of the crime. The prosecution called a single victim impact witness,

Ellen. Ellen testified her grandmother Su Hung had taken care of her in Taiwan

until she was five. Even after Ellen and her family moved to the United States,

she and her grandmother remained close. They spoke weekly on the telephone,

and Su Hung came to visit every year, staying three to six months. Ellen missed

her grandmother and blamed herself for her death. She did not return to school for

several months after the murder because her mother, Cary, was frightened and did

not want her children or her husband out of her sight.

After Su Hung’s death, Cary and Tony sold their residence at a loss because

it had too many bad memories. Cary sold her business, and she and Tony

separated. Cary moved to Taiwan, while Tony remained in the United States.

Cary still cried when she thought about her mother or saw her picture.

2. Defendant Hajek’s Evidence

June Fountain, the social worker who oversaw Hajek’s eventual placement

with his adoptive parents, testified about that process. Hajek was abandoned by


his birth mother in the hospital and placed in foster care with a couple who wanted

to adopt him. Because Florida prohibited the adoption of children by their foster

parents, Hajek was abruptly removed from the first foster home and placed in a

second foster home. Nine months later, Hajek was removed from that second

home and placed for adoption with another couple.

This couple already had a six-year-old biological daughter, and they wanted

to adopt a son between the ages of two and three. They failed to disclose to

Fountain that the wife was pregnant when Hajek was placed in their home.

Fountain was concerned that if the wife gave birth to a boy, the husband might

reject Hajek. Nonetheless, she did not want to remove Hajek from yet another

home. Based on her observations of the couple’s parenting of their daughter,

Fountain made some suggestions to improve their skills, which caused friction

between the couple and Fountain. After several weeks of silence, Fountain called

them. She learned that the husband had lost his job, the wife had given birth to a

boy, and Hajek and the couple’s daughter were fighting. The husband asked

Fountain to come to their house after the holidays. Fountain was certain they were

going to ask that Hajek be removed from their house.

Fountain visited the couple and found them under enormous stress. The

wife was worried that she might hurt Hajek. Hajek was removed from the

couple’s home and immediately placed in the home of the Hajeks. Fountain

testified that under new practices no adoption agency would ever move a child

directly from a failed adoption setting into a new adoptive home out of fear that

the child would come to blame the second set of parents for removing him or her

from the first set of parents. Fountain believed Hajek was emotionally abused

during his stay with the couple.


Dr. Minagawa, who had testified at the guilt phase, testified again at the

penalty phase. Minagawa testified that Hajek’s removal from the foster parents

who had wanted to adopt him was the most traumatizing event of his first two

years of life and that the later failed adoptive placement impaired Hajek’s ability

to develop the trust in other human beings necessary for a sense of stability and

security in the world. Minagawa testified that the effects of this trauma did not go

away but went “underground,” only to emerge during adolescence and in early

adulthood. He testified that, at 18, Hajek was still an adolescent in terms of his

judgment, maturation, and impulsivity. In the guilt phase, Minagawa described

Hajek’s mood disorder as cyclothymia, which is similar to, but not the same as

bipolar disorder. In the penalty phase, Minagawa amended the diagnosis to

bipolar disorder, which is genetically based and treatable with medication and

counseling. Minagawa opined that on the date of the murder, Hajek was under the

influence of a bipolar or cyclothymic disorder that impaired his judgment.

Additionally, Minagawa testified Hajek was suffering from the personality

disorder he had described in his guilt phase testimony.

3. Defendant Vo’s Evidence

Vo called 29 witnesses. They fell into four categories: family and friends;

teachers; members of the National Guard; and correctional officers. His witnesses

also included an expert on Vietnamese immigration into the United States and a

correctional expert.

Vo’s father, Tan Van Viet, testified he had eight children, four born in

Vietnam and four in the United States. Tan Van Viet worked for the United States

government in Vietnam, and the family was well-off. When Saigon fell to the

Communist regime in the north in 1975, the family had only 30 minutes to leave.

First they went to Guam, then to an Army base in Arkansas, then to Tennessee,


then to Kentucky, and ultimately to California, where the family settled in San

Jose. After failed attempts to obtain a college degree and to become a farmer, Tan

Van Viet found employment as a school crossing guard. Tan Van Viet claimed

his family was happy, and he had never needed to discipline his children.

Vo’s mother, Keen Vo, testified briefly that Vo was a good son and that she

did not want him to receive the death penalty.

Vo’s brothers, Dexster and Sparkman Vo, gave accounts of their family life

that differed significantly from their father’s. Dexster described the family’s

departure from Vietnam as “chaotic.” In Guam and then in Arkansas, they lived in

a military barracks. Their living conditions after Arkansas were not much better,

and their San Jose residence was “a shack.” Dexster described his father as very

strict and said there was a culture clash between his father’s traditional

Vietnamese ways and his children’s American ways. His father used a belt to

discipline him. His parents fought, and their fights escalated from verbal to

physical violence. These fights frightened him and his siblings, and Vo would

shut down and hide his feelings. Dexster joined the military in part to get away

from his family.

Dexster testified that during one fight, his mother pulled a knife, and his

father and the children ran into a room and locked the door. His father told

Dexster to climb out the window and go for help, as his mother pounded on the

door. The police arrived. His mother tried to commit suicide and was

hospitalized. Sparkman Vo, Vo’s youngest brother, confirmed Dexster’s

testimony about their father’s disciplinary methods and the violent arguments

between their parents.


Kieu Ngan Vo testified that Vo was a good brother who, even in custody,

remained part of the family, and that the family would be devastated if Vo

received the death penalty.

A number of Vo’s friends testified to his good character and his difficult

home life. Billy McDonald, who met Vo when they were both freshmen in high

school, testified that Vo helped McDonald through a suicidal period. Four other

school friends also testified Vo was a loyal and dependable friend, as well as

personable and honest. They were also aware Vo had problems at home and

would stay late at school to avoid having to go home.

Four of Vo’s high school teachers testified on his behalf. Patricia

Accoritini, his photography teacher, testified Vo was an eager and conscientious

student. Vo would spend his lunch period in Accoritini’s classroom and would

also “hang out” there after school. Vo told her that his father abused his mother

and that Vo once had to leave home for a while after attempting to protect his

mother. Vo bought candy bars from Accoritini because he wasn’t being fed at

home. Vo was calm and nonviolent and had friends among the different racial and

ethnic groups at the high school. Accoritini would have felt comfortable having

Vo in her own home and considered having him live with her family because of

his problems at home. Paul Enders and Rudolf Franke, who supervised Vo when

he was a staff photographer on the yearbook, confirmed that he worked hard, was

helpful beyond what was required of him, and got along with others. Franke

formed the impression that Vo’s father was strict.

Francis Nieman was a German teacher who taught Vo for three years. Vo

was an average student, but he worked hard. He was a very active participant in

the German club, and he mixed well with everyone and was liked and respected by


the other students. Nieman never saw any type of violence from Vo. He was

under the impression that Vo’s parents were strict and traditional.

Nora Mazotti was Vo’s high school counselor. Vo told her on more than

one occasion that his father was abusive. At one point she wrote up a report of

suspected child abuse when Vo told her his father punched him and threatened to

throw a chair at him.

Members of the National Guard testified on Vo’s behalf about his record in

the National Guard. Two of his commanding officers, David Whittum and Scott

Sutherland, testified he had been a satisfactory Guard member. A fellow member

of the Guard, Dwayne Talbot, testified Vo was a good soldier.

Nine correctional officers attested that Vo was a model inmate. Frances

Paragon-Arias, an art instructor at the Santa Clara County jail, testified Vo was an

enthusiastic and motivated student who was helpful, positive, and respectful.

Gregory Dalcher, a volunteer tutor at the jail, testified Vo was a dedicated student

and a positive and stable person.

Professor Hien Duc Do testified as an expert on the Vietnamese immigrant

experience in the United States. Do explained that Vo’s family belonged to the

first wave of Vietnamese immigrants to the United States who left Vietnam in

1975 after the Communist victory. People like Vo’s father who had worked for

the United States government were forced to leave because they feared

persecution. They had been educated and were middle or upper middle class in

Vietnam, but in the United States they experienced a loss in status. The men were

forced to take menial jobs, and their wives, who had not worked in Vietnam, went

to work to help support their families. The women became semi-independent, and

this change created marital tensions that could lead to domestic violence because

the men expected women to keep to their traditional roles. The children of these


families were caught in a cultural vise between American individualist and

Vietnamese traditional cultures. Moreover, because the children acculturated

while their parents did not, there was a role reversal in which the children were in

a role of authority. Do opined that the stresses, tensions, and incidents of violence

within Vo’s family as described in the testimony of Vo and his family members

were consistent with the experiences of the first wave of immigrants.

James Park, a clinical psychologist, testified as an expert in prisoners’

classifications and their adjustment to prison life. Based on his review of Vo’s

record, Park opined that Vo would be a productive and nonviolent prisoner.


A. Pretrial Issues

1. Severance Motions

Before the start of trial, Vo filed an omnibus motion in limine, which

included a motion to sever. Vo argued severance was required on two grounds.

First, he argued Hajek had made statements to various individuals incriminating

Vo that would be inadmissible at their joint trial under the Aranda/Bruton rule.

(People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S.

123 [a nontestifying codefendant’s extrajudicial statement that incriminates the

other defendant is inadmissible as a violation of the latter’s rights to confrontation

and cross-examination].)4 Second, Vo claimed severance was required because he

and Hajek were advancing antagonistic defenses. Hajek’s counsel orally joined in

the motion to sever. The prosecution opposed both motions, and the trial court


To the extent Aranda “require[d] the exclusion of relevant evidence that

need not be excluded under federal constitutional law, it was abrogated in 1982 by
the ‘truth-in-evidence’ provision of Proposition 8 [citation.]. [Citations.]”
(People v. Fletcher (1996) 13 Cal.4th 451, 465, fn. omitted.)


denied them. The court also denied Vo’s oral motion for severance during the

penalty phase.

Defendants contend the trial court abused its discretion when it denied their

respective severance motions. Alternatively, they argue that, even if pretrial

denial of severance was not an abuse of discretion, retrospectively it amounted to a

due process violation. For the reasons below, we find no merit to any of these


“ ‘Our Legislature has expressed a preference for joint trials. [Citation.]

Section 1098 provides in pertinent part: “When two or more defendants are

jointly charged with any public offense, whether felony or misdemeanor, they

must be tried jointly, unless the court order[s] separate trials.” The court may, in

its discretion, order separate trials if, among other reasons, there is an

incriminating confession by one defendant that implicates a codefendant, or if the

defendants will present conflicting defenses. . . . [¶] We review a trial court’s

denial of a severance motion for abuse of discretion based on the facts as they

appeared when the court ruled on the motion. [Citation.] If we conclude the trial

court abused its discretion, reversal is required only if it is reasonably probable

that the defendant would have obtained a more favorable result at a separate trial.

[Citations.] If the court’s joinder ruling was proper when it was made, however,

we may reverse a judgment only on a showing that joinder “ ‘resulted in “gross

unfairness” amounting to a denial of due process.’ ” [Citation.]’ [Citation.]

Severance motions in capital cases generally receive heightened scrutiny for

potential prejudice. [Citation.]” (People v. Homick (2012) 55 Cal.4th 816, 848.)

Defendants were charged with having committed common crimes that

involved the same individuals and same series of events. The joinder of their


cases was proper. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 150 (Letner

and Tobin).)

Although Vo advanced two grounds for severance in his pretrial severance

motion, on appeal he argues only that severance was required because the

“irreconcilable defenses of the co-defendants here resulted in a trial lacking due

process of law.”5

“Severance is not required simply because one defendant in a joint trial

points the finger of blame at another. ‘ “ ‘Rather, to obtain severance on the

ground of conflicting defenses, it must be demonstrated that the conflict is so

prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably

infer that this conflict alone demonstrates that both are guilty.’ ” [Citation.]

When, however, there exists sufficient independent evidence against the moving

defendant, it is not the conflict alone that demonstrates his or her guilt, and

antagonistic defenses do not compel severance.’ [Citation.]” (People v. Homick,

supra, 55 Cal.4th at p. 850; see also Letner and Tobin, supra, 50 Cal.4th at p.


Here there was sufficient independent evidence of both defendants’ guilt

apart from any potential conflict in the defenses. The evidence showed that both

defendants had a motive to commit the charged crimes. Hajek told Tevya

Moriarty he was going to kill Ellen and her family in retaliation for his altercation


Vo had additionally argued that certain statements by Hajek violated the

Aranda/Bruton rule. The trial court’s rejection of this argument was sound. The
statements by Hajek to Moriarty about his plan to kill Ellen’s family and Hajek’s
postarrest threats to her did not incriminate Vo. The Aranda/Bruton rule applies to
a “ ‘nontestifying codefendant’s extrajudicial . . . statement that inculpates the
other defendant.’ ” (People v. Jennings (2010) 50 Cal.4th 616, 652.) The trial
court later admitted those statements against both defendants. (See post, pt.


with Ellen. Vo learned about the altercation on the same day it occurred, when he

was present with Hajek and Lori Nguyen that night and Hajek and Ellen were

exchanging hostile phone calls. Vo had unrequited romantic feelings toward

Nguyen and was Hajek’s friend. Vo later told Cary he was looking for Ellen

because she had had an argument with his relative at school and said he wanted to

teach her a lesson. The evidence showed further that defendants together arrived

at the Wang residence, prepared to commit a violent act. They drove a stolen van

and parked it around the corner. Wearing gloves and armed with a pellet gun, they

gained entrance into the residence on a pretext. Once inside, Hajek pointed the

gun at Alice to force her compliance. At another point, Vo held a knife to Cary’s

throat and threatened to kill her and her family if she called out. Working in

concert, Hajek and Vo held members of the Wang family hostage for several

hours, during which they repeatedly threatened the victims’ lives and murdered Su


As described by the Wangs, both defendants took an active part in these

events, which included binding and blindfolding the victim and isolating her in an

upstairs room that each visited repeatedly. When the police arrived at the scene,

Hajek attempted to flee, and Vo, upon being arrested, lied about his identity.

Because sufficient independent evidence existed against both defendants,

the trial court’s rejection of the severance motions was not an abuse of discretion.

In any case, their defenses were not truly conflicting. Vo argues that

Hajek’s defense was that Vo was the actual perpetrator, creating an irreconcilable

conflict because the jury could not have accepted Hajek’s defense without

convicting Vo. This mischaracterizes Hajek’s defense. Hajek’s defense was that

his mental illness reduced his culpability, not that he was not culpable. While

Hajek’s attorney may have suggested in closing argument that Hajek was not the


actual killer, she explained that “the heart of [Hajek’s] defense” was that he was in

a manic state at the time of the offenses due to his mental illness, and therefore did

not premeditate or deliberate. Indeed, Vo’s trial counsel sought to capitalize on

Hajek’s mental illness defense by presenting evidence of episodes where Hajek

lost control of himself and acted impulsively or violently. Vo’s defense was that

Hajek killed Su Hung in a manic state without Vo’s knowledge or assistance and

that Vo had accompanied Hajek to the Wang residence merely to confront Ellen,

not to commit murder.

A jury need not have believed Vo was guilty to accept Hajek’s mental

illness defense. Vo’s defense, if believed, did not require the jury to convict

Hajek. “[T]his was not a case in which only one defendant could be guilty. The

prosecution did not charge both and leave it to defendants to convince the jury that

the other was that person.” (People v. Cummings (1993) 4 Cal.4th 1233, 1287.)

Again, no abuse of discretion has been shown.

Vo next contends that the denial of his pretrial severance motion — viewed

retrospectively — resulted in gross unfairness sufficient to constitute a denial of

due process. (See People v. Homick, supra, 55 Cal.4th at p. 852; People v. Hoyos

(2007) 41 Cal.4th 872, 896.) He argues that much of the evidence adduced at his

joint trial with Hajek was prejudicial to Vo and would have been excluded as

irrelevant had he been tried alone.6 But the evidence Vo cites — Hajek’s

altercation with Ellen and his telephone conversation with Moriarty, defendants’

jailhouse conversation, and defendants’ close friendship with each other and


Threaded through Vo’s argument is his claim that the prosecution should

not have been allowed to argue for his culpability on the basis of what he calls its
“uncharged and wildly expansive conspiracy theory.” This claim, which we reject
post, in part II.B.2., has no bearing on whether the cases should have been severed.


Nguyen — would likely have been admitted at a separate trial for Vo to provide

context and motive for his actions at the Wang residence.

Vo further contends that Hajek’s mental illness evidence prejudiced Vo

because the jury must have anticipated that Vo, too, would have presented such a

defense. The claim is speculative, unsupported by the record or any relevant

authority. Equally unpersuasive is Vo’s claim that the prosecutor at one point

used Hajek’s mental illness defense to suggest Vo was the more culpable actor

because he was not mentally ill. As the record reflects, Hajek’s attorney had

argued that the plan to kill Ellen’s family in retaliation for a minor altercation was

so bizarre it could not have been planned but was the product of Hajek’s mental

illness. In response, the prosecutor argued that enlisting Vo as a cohort was

evidence that Hajek was not mentally ill when he planned and carried out the

crime. Thus, the prosecutor’s argument merely refuted Hajek’s mental illness

defense and did not suggest Vo was more culpable because he was not mentally


Vo next contends that evidence of Hajek’s prior criminal conduct and “bad

character” — e.g., his interest in Satanism, his delusions about being Asian, and

his sadism — tainted Vo by association.

Severance may be justified “where there may be prejudicial association

with codefendants” (People v. Boyde (1988) 46 Cal.3d 212, 232), but only if, at

the guilt phase, “the evidence regarding one defendant might make it likely the

jury would convict that defendant of the charges and, further, more likely find a

codefendant guilty based upon the relationship between the two rather than upon

the evidence separately implicating the codefendant.” (Letner and Tobin, supra,

50 Cal.4th at p. 152.) Those circumstances are not present here. As recounted

above, ample independent evidence implicated Vo in the crimes of which he was


convicted. In these circumstances, there is no likelihood the jury convicted Vo

solely because of his association with Hajek. Moreover, the evidence regarding

Hajek’s prior criminal conduct and various obsessions was clearly admitted

against Hajek alone, and we have no reason to doubt that the jury followed the

instructions to consider separately each defendant’s guilt. Finally, evidence that

tended to depict Hajek as an out-of-control deviant aided Vo’s defense that Hajek

killed the victim in the midst of a manic episode. Indeed, Vo himself introduced

some of this evidence.

In sum, denial of Vo’s pretrial severance motion did not amount to a due

process violation.

Vo also challenges the denial of his penalty phase severance motion. On

direct examination during the penalty phase, Hajek’s expert, Dr. Minagawa,

testified that at the time of Su Hung’s murder, Hajek was mentally ill and in the

midst of a manic episode. On cross-examination, the prosecutor repeatedly sought

to impeach Minagawa by suggesting he had avoided asking Hajek questions that

would have undermined this diagnosis. In this vein, the prosecutor asked

Minagawa whether he had pressed Hajek about the circumstances of the murder.

To four of these questions, Minagawa replied that Hajek had denied killing the

victim. Vo’s counsel objected on hearsay grounds. The trial court responded with

a limiting instruction: “The testimony is strictly limited to Mr. Hajek and it is not

being received as to Mr. Vo. . . . So when you receive the testimony as to Mr.

Hajek, it is received only as to Mr. Hajek. And when you receive testimony as to

Mr. Vo, it is received only as to Mr. Vo. [¶] Objection is overruled.”

In a hearing outside the presence of the jury, Vo’s counsel moved for a

mistrial or, alternatively, severance. He argued that by relating Hajek’s denial that

he killed the victim, Dr. Minagawa’s testimony violated the Aranda/Bruton rule.


Counsel asserted the trial court’s admonition was inadequate to cure the violation.

On appeal, Vo challenges the denial of these motions.

The Aranda/Bruton rule addresses a specific issue that arises at joint trials

when the prosecution seeks to admit the out-of-court statement of a nontestifying

defendant that incriminates a codefendant. “ ‘Aranda and Bruton stand for the

proposition that a “nontestifying codefendant’s extrajudicial self-incriminating

statement that inculpates the other defendant is generally unreliable and hence

inadmissible as violative of that defendant’s right of confrontation and cross-

examination, even if a limiting instruction is given.” [Citation].’ [Citation.] The

United States Supreme Court ‘limited the scope of the Bruton rule in Richardson

v. Marsh (1987) 481 U.S. 200 . . . . The court explained that Bruton recognized a

narrow exception to the general rule that juries are presumed to follow limiting

instructions, and this narrow exception should not apply to confessions that are not

incriminating on their face, but become so only when linked with other evidence

introduced at trial. (Richardson, supra, at pp. 206-207.) That is because, “[w]here

the necessity of such linkage is involved, it is a less valid generalization that the

jury will not likely obey the instruction to disregard the evidence.” (Id. at p.

208.)’ ” (People v. Homick, supra, 55 Cal.4th at p. 874, fn. omitted; see People v.

Fletcher, supra, 13 Cal.4th at pp. 463-464.)

Hajek’s statement to Dr. Minagawa that he did not kill Su Hung did not

facially incriminate Vo. Its incriminatory effect depended entirely on its linkage

to other evidence. Moreover, the point of the prosecutor’s cross-examination was

to suggest that Hajek’s denial of culpability was a lie that Minagawa accepted at

face value because it was consistent with his diagnosis. Thus, the issue was not

the identity of Su Hung’s killer, but Minagawa’s credibility as an expert. Under

these circumstances, the trial court’s limiting instruction properly guided the jury’s


consideration of the testimony. (Richardson v. Marsh, supra, 481 U.S. at p. 206

[“Ordinarily, a witness whose testimony is introduced at a joint trial is not

considered to be a witness ‘against’ a defendant if the jury is instructed to consider

that testimony only against a codefendant.”].)

We turn to Hajek’s severance claim. Hajek’s counsel orally joined Vo’s

pretrial motion for severance on the ground of antagonistic defenses. As noted,

sufficient independent evidence existed of both defendants’ guilt so as to render

the denial of their severance motion an appropriate exercise of discretion at the

time the court ruled. Moreover, although Hajek complains that Vo was permitted

to call two witnesses who testified to two episodes of Hajek’s violent behavior

involving an attack on a coworker and the destruction of jail property, Hajek

concedes that he himself referred to these incidents as part of his mental illness

defense. Under these circumstances, Hajek fails to demonstrate that the denial of

his severance motion resulted in gross unfairness amounting to a due process


Hajek also contends the trial court erroneously denied his penalty phase

severance motion. The motion to which he refers was for a mistrial, not

severance. The claim is forfeited. (People v. Tafoya (2007) 42 Cal.4th 147, 163;

People v. Ervin (2000) 22 Cal.4th 48, 68.)7 Even if the claim were not forfeited, it

is meritless. Hajek argues he was prejudiced by Vo’s extensive “good character”

defense, because Hajek’s inability to mount a comparable defense cast him in a


For the same reason — because he moved for a mistrial, not severance —

Hajek also forfeited his claim that severance was required after the prosecutor
asked one of Vo’s witnesses if Hajek had been a “gangster” in high school. In any
event, the trial court sustained the objection of Hajek’s counsel and granted her
motion to strike. Hajek points to no further prosecutorial questioning on this


bad light before the jury. As already noted, the jury was specifically admonished

“not to weigh one defendant against the other or choose between them,” and to

make “an individualized determination based on the character and circumstances

of each individual and the circumstances of the case.” We presume the jury

understood and followed these instructions. (People v. Avila (2006) 38 Cal.4th

491, 575.)

2. Keenan Counsel

Vo contends his right to effective assistance of counsel was violated by the

initial denials of his request for a second or Keenan counsel (Keenan v. Superior

Court (1982) 31 Cal.3d 424) and by a later denial of his request to continue the

trial when Keenan counsel withdrew for health reasons. We reject his claims.8

a. Background

In September and October 1991, Vo’s trial counsel, James Blackman, filed

declarations seeking appointment of a second attorney to defend Vo. Blackman

asserted the second counsel was required for research and related work on various

motions, including motions for discovery, severance, a section 995 motion to

dismiss, a motion to preclude the death penalty based on the charging policies of

the Santa Clara County District Attorney, and motions related to the admissibility

of particular pieces of evidence. The requests were summarily denied.

Blackman sought a hearing, which was conducted on November 20, 1991,

by Judge Hastings. To justify his Keenan counsel request, Blackman repeatedly

cited the complexity of the case and of the various motions and investigations he


Vo links these alleged errors with claims pertaining to funding issues

during the trial and to his counsel’s attempt to withdraw after the court excluded
testimony from one of his experts, Dr. Berg, as a discovery sanction. The issues
are distinct and are discussed separately. (See post, pts. II.D.1., II.C.3.)


planned to undertake in Vo’s defense. He additionally cited the fact that a number

of his witnesses spoke only Vietnamese.

The trial judge noted his own experience as a criminal defense lawyer,

which included 13 years in practice and certification as a criminal law specialist,

and his judicial experience presiding over hundreds of jury trials, including five

death penalty cases. The judge pointed out that in Keenan “there was a very

critical time issue involved for the lawyer to get prepared after his appointment,”

whereas in Vo’s case “the matter isn’t even set for trial.” The judge characterized

Blackman’s statement that the case was complicated as “conclusionary” and again

denied the motion.

In March 1994, Blackman made a third request for Keenan counsel before a

different trial judge, and this time the request was granted. Attorney Mary Ann

Bachers was appointed second counsel and began work on the case in May 1994.

Neither the declarations submitted in connection with the third Keenan request nor

the transcript of any hearing is in the record.

Trial was set for January 17, 1995. On December 16, 1994, Blackman

presented the court with a doctor’s note stating Bachers was completely disabled

and unable to continue to represent Vo. He asked for a continuance of the trial

date. Both the prosecutor and Hajek’s counsel objected. On January 6, 1995,

Blackman reported he had not yet found a replacement for Bachers. On January

17, the court held a hearing on the continuance request. Blackman characterized

the case as “complicated,” and recounted his initial unsuccessful attempts to obtain

Keenan counsel as well as the time he spent litigating the section 995 motion and

subsequent appeal.9 Blackman acknowledged that, while the case was on appeal


Blackman had filed a section 995 motion that resulted in dismissal of all

special-circumstance allegations except torture murder. The prosecution’s appeal
was successful, and the Court of Appeal reinstated the special circumstances in an


following the granting of Vo’s section 995 motion, “[w]e just didn’t do anything

because the focus of the attention at that point was to see what happened in the

Court of Appeal.” Blackman said his request for Keenan counsel had been

granted following the Court of Appeal’s reinstatement of the special

circumstances. He insisted he could not go to trial because Bachers had been in

charge of penalty phase preparations and, as a result of her withdrawal from the

case, the penalty phase case was not ready. He told the court he had been

unsuccessful in his efforts to find a replacement for Bachers.

The trial court denied the continuance request. The court said it had read

the transcript of the November 21, 1991, Keenan hearing before Judge Hastings

and observed, “[a]ll the arguments you’re putting forth here were the same

arguments you put forth at that time . . . . I don’t think this case will ever be

prepared . . . . [A]ll the information you need for a competent guilt phase and

penalty phase investigation is at your fingertips.”

On February 10, 1995, Attorney Jeane Dekelver was appointed as

replacement Keenan counsel. Trial began on February 14, 1995. As stated in the

factual summary above, Vo called 29 penalty phase witnesses, including family

members, friends, and experts on the Vietnamese immigrant experience and on

prisoner classifications and prisoner adjustment.

b. Discussion

We begin with the initial denial of Vo’s request for Keenan counsel. In

capital cases, “courts have the statutory discretion to appoint a second defense

attorney at public expense. [Citations.] But unlike the constitutional right [to

unpublished opinion filed on October 29, 1993. Subsequently, however, the trial
court dismissed the robbery-murder and burglary-murder special-circumstance
allegations at the end of the prosecution’s guilt phase case.


counsel], the statutory right to appointed second counsel is qualified.” (People v.

Roldan (2005) 35 Cal.4th 646, 686, fn. omitted; § 987, subd. (d).) “In ruling on an

application for second counsel, the trial court must be guided by the need to

provide a capital defendant with a full and complete defense . . . . The initial

burden is on the defendant to present a specific factual showing of ‘genuine need’

for the appointment of second counsel. [Citation.] We review the decision

whether to grant a request to appoint second counsel under section 987 for abuse

of discretion. [Citation.]” (People v. Doolin (2009) 45 Cal.4th 390, 432.) “The

abuse of discretion standard is used in many other contexts and reflects the trial

court’s superior ability to consider and weigh the myriad factors that are relevant

to the decision at hand. A trial court will not be found to have abused its

discretion unless it ‘exercised its discretion in an arbitrary, capricious, or patently

absurd manner that results in a manifest miscarriage of justice.’ [Citation.]”

(People v. Roldan, supra, 35 Cal.4th at p. 688.)

We find no abuse of discretion in the denial of Vo’s initial requests for

Keenan counsel. To the extent Vo’s counsel sought to justify such an appointment

because the case was complex, the trial court correctly dismissed such justification

as conclusory and therefore insufficient. (See People v. Verdugo (2010) 50

Cal.4th 263, 278-279 [no abuse of discretion where request for appointment of

second counsel is denied, where the request asserts only that the case is

“ ‘complex’ ”].) Nor do we find the trial court abused its discretion merely

because Vo’s counsel referred to specific motions and investigations as grounds

for his request. Indeed, as the court noted, the matter had not yet even been set for

trial. Keenan’s genuine need standard requires the defendant to show specific and

compelling reasons for appointment of second counsel. (Keenan v. Superior

Court, supra, 31 Cal.3d at p. 429.) The trial court gave clear and detailed reasons


why it did not find the justifications offered by Vo’s counsel to be compelling.

We cannot say the court’s findings constituted an abuse of discretion.

Nor are we swayed by the fact that a second judge was later persuaded to

appoint Keenan counsel. Neither the declarations submitted in connection with

that request nor a transcript of the hearing, if any, are in the record. Accordingly,

we do not know whether new or different arguments were made or what other

factors may have informed the second judge’s exercise of discretion. The

subsequent appointment of second counsel does, however, obviate any possibility

of prejudice even were we to assume the first judge abused his discretion, which

we do not.

The same abuse of discretion standard governs the trial court’s ruling on

Vo’s request for a continuance after his Keenan counsel withdrew for medical

reasons. “A continuance in a criminal trial may only be granted for good cause.

[Citation.] ‘The trial court’s denial of a motion for continuance is reviewed for

abuse of discretion.’ [Citation.] ‘There are no mechanical tests for deciding when

a denial of a continuance is so arbitrary as to violate due process. The answer

must be found in the circumstances present in every case, particularly in the

reasons presented to the trial judge at the time the request is denied.’ [Citations.]”

(People v. Mungia (2008) 44 Cal.4th 1101, 1118 (Mungia).) “The party

challenging a ruling on a continuance bears the burden of establishing an abuse of

discretion, and an order denying a continuance is seldom successfully attacked.

[Citation.] [¶] Under this state law standard, discretion is abused only when the

court exceeds the bounds of reason, all circumstances being considered.

[Citations.]” (People v. Beames (2007) 40 Cal.4th 907, 920.)

Here, as the trial court noted, the January 17, 1995, hearing on the motion

was also the fourth anniversary of the crime. Vo’s counsel acknowledged that


work had essentially stopped on the case for over one year while the Court of

Appeal reviewed the granting of the section 995 motion, which had resulted in the

striking of all but one of the special circumstances. As the trial court pointed out,

however, the section 995 motion had not been granted as to the torture-murder

special circumstance, and so the case had remained a capital case. Regarding the

main reason for the continuance request — the withdrawal of Keenan counsel for

health reasons — the court pointed out that over a month had passed, and Vo’s

counsel had not secured a replacement. The court also observed the penalty phase

investigation that Vo’s counsel claimed had not been completed involved issues

such as Vo’s Vietnamese immigrant experience, of which counsel had been aware

as early as 1991, when he first requested Keenan counsel. Moreover, the court

questioned why Attorney Bachers, rather than the defense investigator, was

interviewing penalty phase witnesses, “because the person you want talking to

those people is somebody you’re going to put on the stand to talk in the case, and

you’re not going to put Keenan counsel on the stand.” In sum, the trial court

concluded that the defense was sufficiently prepared to proceed with both the guilt

and penalty phases and that the withdrawal of second counsel did not necessitate a


We find no abuse of discretion. Even if counsel could have chosen to

allocate his time differently, he was not denied a reasonable opportunity to prepare

a defense. (People v. Doolin, supra, 45 Cal.4th at p. 450.) Thus, the trial court

was justified in rejecting counsel’s request for more time to prepare his penalty

phase case in light of Keenan counsel’s withdrawal. Moreover, a replacement


counsel was appointed, and an extensive penalty phase case was in fact presented.

Thus, Vo fails to demonstrate prejudice in any event.10

B. Guilt Phase Issues

1. Sufficiency of the Evidence Claims

Defendants claim the evidence is insufficient to support the lying-in-wait

special-circumstance findings, the torture-murder special-circumstance findings,

the attempted murder convictions, the firearm enhancements as to Hajek, and the

knife use enhancements as to Vo. Based on the alleged insufficiency of the

evidence at the close of the prosecution’s guilt phase case-in-chief, defendants

additionally contend the trial court should have granted their section 1118.1

motions for dismissal of the lying-in-wait special circumstances and for acquittal


“As to this and virtually all other appellate claims, defendant contends that

an issue raised and decided in the trial court resulted in constitutional violations,
but he did not present those constitutional theories below. In such instances, it
appears that (1) the appellate claim is the kind that required no trial court action to
preserve it, or (2) the new arguments do not invoke facts or legal standards
different from those the trial court was asked to apply, but merely assert that the
trial court’s act or omission, in addition to being wrong for reasons actually
presented to that court, had the legal consequence of violating the United States
and California Constitutions. To that extent, defendant’s new constitutional
arguments are not forfeited on appeal. (People v. Boyer (2006) 38 Cal.4th 412,
441, fn. 17, applying People v. Partida (2005) 37 Cal.4th 428, 433-439.) In the
latter case, no separate constitutional discussion is required or provided where
rejection of a claim that the trial court erred on the issue presented to that court
necessarily leads to rejection of any constitutional theory or ‘gloss’ raised for the
first time here.” (People v. Contreras (2013) 58 Cal.4th 123, 139, fn. 17.) We
apply this principle here and elsewhere where defendants, separately or jointly,
assert on appeal constitutional claims not advanced below.


on counts 2 through 5 of the information regarding the attempted murders of Cary,

Alice, Tony, and Ellen, and on the knife use enhancements.11

In determining whether the evidence was sufficient either to sustain a

conviction or to support the denial of a section 1118.1 motion, the standard of

review is essentially the same. (People v. Houston (2012) 54 Cal.4th 1186, 1215

(Houston).) “ ‘[W]e do not determine the facts ourselves. Rather, we “examine

the whole record in the light most favorable to the judgment to determine whether

it discloses substantial evidence — evidence that is reasonable, credible and of

solid value — such that a reasonable trier of fact could find the defendant guilty

beyond a reasonable doubt.” [Citations.] We presume in support of the judgment

the existence of every fact the trier could reasonably deduce from the evidence.

[Citation.] [¶] The same standard of review applies to cases in which the

prosecution relies primarily on circumstantial evidence and to special

circumstance allegations. [Citation.] “[I]f the circumstances reasonably justify

the jury’s findings, the judgment may not be reversed simply because the

circumstances might also reasonably be reconciled with a contrary finding.”

[Citation.] We do not reweigh evidence or reevaluate a witness’s credibility.’ ”

(Ibid.; see also People v. Watkins (2012) 55 Cal.4th 999, 1019-1020.) Notably,

however, “[r]eview of the denial of a section 1118.1 motion made at the close of a

prosecutor’s case-in-chief focuses on the state of the evidence as it stood at that

point.” (Houston, at p. 1215; see Watkins, at p. 1019.)


As relevant here, section 1118.1 provides: “In a case tried before a jury, the

court on motion of the defendant or on its own motion, at the close of the evidence
on either side and before the case is submitted to the jury for decision, shall order
the entry of a judgment of acquittal of one or more of the offenses charged in the
accusatory pleading if the evidence then before the court is insufficient to sustain a
conviction of such offense or offenses on appeal.”


a. Lying-in-wait murder and lying-in-wait special circumstance

Defendants argue the trial court abused its discretion in denying their

motions to dismiss the lying-in-wait special-circumstance allegations at the close

of the prosecution’s case-in-chief. (§ 1118.1.) They also contend the evidence

was insufficient to support their convictions of first degree murder on a lying-in-

wait theory and the true findings on the lying-in-wait special-circumstance

allegations. (§§ 189, 190.2, former subd. (a)(15) as added by Prop. 7, enacted by

voters Nov. 7, 1978.) For the reasons below, we agree the lying-in-wait special-

circumstance findings must be reversed, but conclude that reversal of these

findings does not require reversal of defendants’ death sentences.

At the time of Su Hung’s murder, “the elements of the lying-in-wait special

circumstance required an intentional killing, committed under circumstances that

included a physical concealment or concealment of purpose; a substantial period

of watching and waiting for an opportune time to act; and, immediately thereafter,

a surprise attack on an unsuspecting victim from a position of advantage.

[Citations.] . . . [The period of waiting and watching] need not continue for any

particular length ‘ “of time provided that its duration is such as to show a state of

mind equivalent to premeditation or deliberation.” ’ [Citation.] ‘ “ ‘The element

of concealment is satisfied by a showing “ ‘that a defendant’s true intent and

purpose were concealed by his actions or conduct. It is not required that he be

literally concealed from view before he attacks the victim.’ ” ’ ” ’ [Citation.] The

factors of concealing murderous intent, and striking from a position of advantage

and surprise, ‘are the hallmark of a murder by lying in wait.’ [Citation.]” (People

v. Stevens (2007) 41 Cal.4th 182, 201-202, fns. omitted; People v. Morales (1989)

48 Cal.3d 527, 557.) “[T]he lying-in-wait special circumstance requires ‘that the

killing take place during the period of concealment and watchful waiting . . . .’


[Citation.]” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1149.) “ ‘During’

means ‘at some point in the course of.’ ” (People v. Lewis (2008) 43 Cal.4th 415,

514 (Lewis).)

Moreover, when the capital crime occurred, the lying-in-wait special

circumstance required a showing that the defendant “intentionally killed the victim

while lying in wait.” (§ 190.2, former subd. (a)(15), italics added.) In 2000, the

electorate approved Proposition 18 which, among other things, “changed the

language of the lying-in-wait special circumstance to delete the word ‘while’ and

substitute in its place ‘by means of.’ ” (Lewis, supra, 43 Cal.4th at p. 512, fn. 25.)

Because Su Hung’s murder occurred before this statutory change, we apply the

case law interpreting the more stringent requirement of the former law. (See id. at

p. 511.)

At trial, the evidence showed that Su Hung was killed while defendants

were waiting for her granddaughter, Ellen, to return home. The trial court, using a

“transferred intent” analogy, concluded that even though Ellen was the target, “the

murder did occur during the process of lying in wait, so that special [circumstance]

will not be dismissed.”12 The Attorney General disavows the trial court’s

rationale and argues on appeal that Su Hung herself was the target of defendants’

lying in wait.13 Defendants counter the evidence was insufficient to establish that

Su Hung’s murder occurred while they were lying in wait for her.


Our research has yielded no support in case law for the trial court’s

transferred intent analogy.


Defendants maintain the People have forfeited this argument because it was

not presented at trial. However, review of the prosecution’s closing argument
discloses it did not rely on a transferred intent analogy but rather, as the Attorney
General does here, contended the evidence showed defendants lay in wait for the
murder victim herself. Accordingly, we reject the claim of forfeiture.


In evaluating defendants’ contentions, we find Lewis, supra, 43 Cal.4th

415, instructive. There, the defendant and his accomplices had “accomplished the

forcible kidnapping of [several victims] while lying in wait, but then drove the still

living victims around in their cars for periods of one to three hours, while

withdrawing money from the victims’ bank accounts, before killing them. By the

time of the killings, the concealment, the watchful waiting, and the surprise attack

all had taken place at least one and up to three hours earlier.” (Id. at p. 514.) In

assessing the sufficiency of the evidence, Lewis took note of the prosecutor’s

argument that the defendant had concealed his purpose to kill from each of the

victims until the moment they were killed, in some cases assuring the victims they

would not be harmed. Nonetheless, Lewis concluded that “ ‘mere’ concealment of

purpose is not enough to support the lying-in-wait special circumstance.

[Citation.] Rather, such concealment must be contemporaneous with a substantial

period of watching and waiting for an opportune time to act, and followed by a

surprise attack on an unsuspecting victim from a position of advantage.

[Citation.]” (Ibid.) As Lewis emphasized, “there was no evidence that, while

concealing his purpose to kill, defendant watched and waited for an opportune

time to kill the victims. Rather, the evidence suggests each was killed when, and

only when, his or her ATM withdrawal limit had been reached and the victim had

been driven to a suitable location for killing. Moreover, there was no evidence

that the victims were surprised. Indeed, the evidence suggests each victim must

have been aware of being in grave danger long before getting killed.” (Id. at

pp. 514-515.)

The evidence here is comparable to that in Lewis and calls for a similar

result. Defendants entered the Wang residence by ruse, displayed a gun, and

shortly thereafter bound and blindfolded the frightened victim and isolated her in


an upstairs bedroom for several hours before finally killing her. From the moment

defendants took Su Hung and Alice hostage, Su Hung could not have perceived

their actions as anything other than a serious threat to her safety, even if they

untied her for a period of time while she was kept isolated in the bedroom. Thus,

even assuming defendants engaged in a period of watchful waiting before entering

the house using the element of surprise, it was followed by “a series of nonlethal

events” over the course of several hours, “and then a cold, calculated, inevitable,

and unsurprising dispatch” of the victim. (Lewis, supra, 43 Cal.4th at p. 515.)

Moreover, even assuming defendants never revealed their true purpose to kill the

entire Wang family, there was no evidence that, while concealing that purpose,

defendants watched and waited for an opportune time to kill Su Hung. Thus, even

when the evidence is considered in a light most favorable to the judgment, it

simply fails to establish that defendants’ concealment was contemporaneous with

a substantial period of watching and waiting for an opportune time to act, or that

their concealment allowed them to launch a surprise attack on an unsuspecting

victim from a position of advantage. Although the evidence shows Su Hung was

killed in a most horrifying manner, it falls short of establishing she was killed

while defendants were lying in wait for her.

Accordingly, we conclude the evidence was insufficient to show that

defendants “intentionally killed the victim while lying in wait,” as required under

the former law. (§ 190.2, former subd. (a)(15), italics added; see Lewis, supra, 43

Cal.4th at pp. 514-515.) We now address whether reversal of the lying-in-wait

special-circumstance findings requires reversal of defendants’ death sentences.

Citing Stringer v. Black (1992) 503 U.S. 222, Hajek (joined by Vo) argues

that “the invalidated aggravating factor necessarily added to the aggravating side


of the balance and this prejudiced [defendant] when the jury was deciding whether

to sentence him to death.” We disagree.

Not only did a valid special-circumstance finding remain (torture murder,

see post, pt. II.B.1.b.), but the jury was statutorily permitted to consider all of the

facts and circumstances underlying Su Hung’s murder. As the United States

Supreme Court recognized in Brown v. Sanders (2006) 546 U.S. 212, the

invalidation of a special circumstance does not require reversal of the death

sentence under California’s statutory scheme if “one of the other sentencing

factors enables the sentencer to give aggravating weight to the same facts and

circumstances.” (Id. at p. 220; People v. Castaneda (2011) 51 Cal.4th 1292,

1354.) In urging the death penalty, the prosecutor here relied almost exclusively

on factor (a) of section 190.3, which allows consideration of “the immediate

temporal and spatial circumstances of the crime,” as well as “that which surrounds

the crime materially, morally, or logically.” (People v. Hamilton (2009) 45

Cal.4th 863, 926.) In this case, the factor (a) evidence was the same evidence the

prosecutor cited in his attempt to establish lying in wait — that is, defendants

gained entry into the Wang residence by ruse; they displayed a gun; they quickly

bound and blindfolded Su Hung; and they isolated her upstairs for several hours

before finally killing her. In the words of the United States Supreme Court, “[a]ll

of the aggravating facts and circumstances that the invalidated [special

circumstances] permitted the jury to consider were also open to their proper

consideration under [section 190.3, factor (a)],” and thus the invalid special

circumstances “could not have ‘skewed’ the sentence.” (Brown, at p. 223 [finding

no constitutional violation where jury rendered death verdict after making four

special-circumstance findings, two of which were invalidated on appeal].) That

the evidence was insufficient to establish lying in weight did not render its


consideration by the jury inappropriate. Because the invalid lying-in-wait special

circumstances “did not alter the universe of facts and circumstances to which the

jury could accord . . . weight” (People v. Bonilla (2007) 41 Cal.4th 313, 334), and

because “[t]here is no likelihood that the jury’s consideration of the mere existence

of the [lying-in-wait] special circumstance tipped the balance toward death”

(Mungia, supra, 44 Cal.4th at p. 1139), the invalidity of the lying-in-wait special

circumstances does not warrant reversal of the death sentences.14

b. Torture murder and torture-murder special circumstance

Defendants contend the first degree torture-murder convictions and the

torture-murder special-circumstance findings were not supported by substantial

evidence.15 We conclude the evidence was sufficient.

“To prove torture murder, the prosecution must establish ‘ “a willful,

deliberate, and premeditated intent to cause extreme pain or suffering for the

purpose of revenge, extortion, persuasion, or another sadistic purpose.” ’

[Citation.] To prove a torture-murder special circumstance, the prosecution must

show that defendant intended to kill and had a torturous intent, i.e., an intent to


In light of our conclusions above, defendants’ attacks on the

constitutionality of the special circumstance are moot. We also find it unnecessary
to address defendants’ claims that the evidence is insufficient to support the
convictions of lying-in-wait first degree murder, because the first degree murder
verdicts can be affirmed on theories of torture murder and premeditated murder.
(See post, pt. II.B.1.b.; People v. Rundle (2008) 43 Cal.4th 76, 141 [“ ‘[W]e need
not consider [a sufficiency] claim . . . when the court can determine from the
record that the verdict rested on a theory which is supported by sufficient
evidence.’ ”].)


Defendants did not move for dismissal or acquittal of the torture-murder

special-circumstance allegations at the conclusion of the prosecution’s case-in-
chief. (§ 1118.1.) Accordingly, we look to the entirety of the guilt phase to assess
the sufficiency of the evidence for these special circumstance findings.


cause extreme pain or suffering for the purpose of revenge, extortion, persuasion,

or another sadistic purpose. [Citation.] The jury may infer the intent to inflict

extreme pain from the circumstances of the crime, the nature of the killing, and the

condition of the victim’s body. [Citation.]” (People v. Streeter (2012) 54 Cal.4th

205, 237 (Streeter).)16 “ ‘There is no requirement that the victim be aware of the

pain.’ ” (People v. Elliot (2005) 37 Cal.4th 453, 466-467.) Thus, as to both

torture murder and torture-murder special circumstances, the sufficiency inquiry is

directed at evidence of the defendant’s torturous intent. (People v. Mincey (1992)

2 Cal.4th 408, 433 (Mincey).)

It bears emphasis that “the trier of fact may find intent to torture based on

all the circumstances surrounding the charged crime, including the nature and

severity of the victim’s wounds and any statements by the defendant revealing his

state of mind during the crime.” (People v. Bemore (2000) 22 Cal.4th 809, 841

(Bemore).) For example, evidence that the defendant intentionally inflicted

nonlethal wounds on the victim may demonstrate the requisite “ ‘sadistic intent to

cause the victim to suffer pain in addition to the pain of death.’ ” (Ibid.; see id. at

p. 844 [“Certain nonlethal knife wounds . . . seem plainly calculated to cause

extreme pain and to induce [the victim’s] cooperation.”]; see also Mungia, supra,

44 Cal.4th at p. 1137 [“When we have upheld [torture-murder special-

circumstance findings], the evidence has shown that the defendant deliberately


Hajek contends that the prosecutor conflated the elements of torture murder

and the torture-murder special circumstance, but the relevance of this assertion to
his sufficiency argument is unclear. He acknowledges that “the principal area of
overlap” between the elements of the torture murder and the torture-murder
special circumstance “is the requirement that the prosecution prove beyond a
reasonable doubt that the defendant had an intent to cause the victim extreme
pain.” It is precisely this intent requirement that Hajek argues is unsupported by
substantial evidence, and it is this contention we address.


inflicted nonfatal wounds or deliberately exposed the victim to prolonged

suffering.”]; People v. Crittenden (1994) 9 Cal.4th 83, 141 (Crittenden)

[intentional nonfatal injuries “are consistent only with an intent to inflict extreme

pain”].) Although evidence of binding, by itself, is insufficient to establish an

intent to torture (Mungia, at p. 1138), it is appropriate to consider whether the

victim was bound and gagged, or was isolated from others, thus rendering the

victim unable to resist a defendant’s acts of violence. (Crittenden, at p. 141

[victims bound and gagged]; People v. Proctor (1992) 4 Cal.4th 499, 532 [“victim

was isolated and prevented from resisting or escaping”]; cf. People v. Chatman

(2006) 38 Cal.4th 344, 391 [binding not required to prove torture].) Finally, the

manner of the victim’s death may also evidence the defendant’s intent to torture.

(Proctor, at pp. 531-532.)

Considered as a whole, the circumstances surrounding Su Hung’s murder

provide substantial evidence of defendants’ torturous intent. Significantly, there

was substantial medical evidence showing Su Hung suffered a number of

nonlethal wounds before she was strangled and her throat slashed. These wounds

— which were neither inadvertent nor accidental — included blunt force trauma to

her chin, a stab wound to her shoulder that left a bleeding gash one inch long and

one inch deep, and five shallow puncture wounds to her chest from a sharp

instrument. These wounds evidenced deliberate and gratuitous violence beyond

that which was necessary to kill the victim, and the jury could reasonably infer

from the circumstances that the wounds were inflicted to cause her severe pain

while she was bound, gagged, and utterly helpless. (See Bemore, supra, 22

Cal.4th at p. 842; Crittenden, supra, 9 Cal.4th at p. 141.)

Moreover, the jury was presented with explicit evidence that defendants’

crimes were motivated by a sadistic intent. Hajek was heard to make statements


that evidenced his intent to carry out a vengeful and sadistic plan to murder. Two

days before the killing, Hajek told Tevya Moriarty that he and his girlfriend had

gotten into a fight with a girl, and that he wanted to get back at the girl. He said

that he was going to the girl’s house to kill her and her family, and that he planned

to kill the girl’s family first so he could “look in [the girl’s] eyes when he killed

her.” Not only did these statements evidence Hajek’s desire to murder Ellen after

forcing her to watch as they first killed her family members, but a jury could

reasonably find that such statements, in combination with the condition of Su

Hung’s body, showed that defendants did not kill Su Hung quickly but intended to

inflict extreme pain before finally executing her.

Finally, the manner in which Su Hung was killed furnished additional

evidence of defendants’ torturous intent. Death by strangulation will always take

some amount of time, so generally that fact alone is insufficient to establish an

intent to torture. However, combined with the other circumstances here —

including the duplicative nature of the lethal wounds to Su Hung’s throat, the

nonlethal wounds, and evidence of an express sadistic intent — evidence of the

manner of Su Hung’s death is consistent with an intent to inflict extreme pain or


Hajek effectively concedes his statements to Moriarty were evidence of a

motive to exact revenge against Ellen. He argues, however, they did not provide

substantial evidence of an intent to inflict extreme pain on the murder victim, Su

Hung. We are not persuaded. While Hajek did not explicitly say he intended to

inflict extreme pain on Su Hung or any of the Wangs before killing them, that

intent can be inferred from the totality of the circumstances: the sadistic nature of

defendants’ plan (to first kill Ellen’s family members while she watched and then

to kill her), the deliberate and nonlethal wounds they inflicted on Su Hung while


she was bound and completely defenseless (striking her chin hard enough to leave

a bruise, stabbing her gratuitously in the shoulder, and treating her like a

pincushion while they superficially punctured her chest five times),17 and the

manner in which they killed her (choking her slowly but forcefully with a ligature

until they fractured her thyroid cartilage, then slashing her throat through her

trachea and jugular vein).

Hajek also fails to persuade us that Su Hung’s injuries did not reflect a

torture murder because they were not sufficiently similar to the “extreme injuries”

that other decisions found “support[ed] the inference of an intent to inflict extreme

and prolonged pain.”18 With regard to the perceived lack of severity of Su Hung’s

wounds, it was obvious to defendants that she was a frail woman who was elderly

and diminutive. Su Hung’s physical dimensions (she stood five foot one and

weighed 87 pounds) were basically those of a child, and her age (73 years)

rendered her extremely vulnerable. She was, moreover, bound, gagged, separated

from her family, and completely under the domination of the two defendants. We


The coroner testified he could not tell whether the five puncture wounds to

Su Hung’s chest had been inflicted pre- or postmortem because there was little
blood associated with them. However, he also repeatedly testified that he would
not have expected there would have been much blood even if they had been
inflicted premortem. The jury could reasonably have inferred, given the nonlethal
and nonaccidental stab wound to the victim’s shoulder, that the wounds to her
chest were inflicted while she was still alive. The substantial evidence standard of
review requires that we draw this inference, and all other favorable inferences that
are supportive of the jury’s special circumstance finding. (Streeter, supra, 54
Cal.4th at p. 241.)


Hajek’s sufficiency of the evidence claim appears to incorporate a

challenge to the prosecutor’s characterization of the victim’s injuries in closing
argument. To that extent, the claim is one of prosecutorial misconduct that has
been forfeited by the failure to object to the prosecutor’s remarks at trial. (People
v. Ledesma
(2006) 39 Cal.4th 641, 726.)


cannot agree with Hajek that the wounds left by the various acts of striking,

stabbing, puncturing, and strangling this frail, defenseless, and isolated victim

were not sufficiently extreme to support the inference of an intent to cause her

severe pain and suffering, when considered in light of the totality of the

circumstances — including defendants’ express sadistic plan. (See Bemore,

supra, 22 Cal.4th at pp. 841-842; Crittenden, supra, 9 Cal.4th at p. 141.)

Vo argues separately that the evidence is insufficient as to him because

there was no evidence that he himself killed or tortured the victim, or that he

intended to participate in the killing or the torture. At trial, Vo testified he tagged

along with Hajek that day out of friendship, without any knowledge of Hajek’s

plan to murder Ellen’s family and then Ellen. There was, however, substantial

evidence casting grave doubt on his credibility.

First, the prosecution’s case included letters that Vo had written to Lori

Nguyen. These letters, which revealed Vo’s unrequited love for Nguyen, provided

substantial evidence that Vo had his own independent motive to seek revenge on

Ellen: He could impress Nguyen with how much he loved her.

Second, Vo had to have known about the altercation between Nguyen,

Hajek, and Ellen, because Vo was at Hajek’s house the night of its occurrence and

had heard Hajek and Ellen exchanging angry phone calls. Moreover, Hajek had

told Moriarty, who was scarcely more than an acquaintance of his, that because of

this altercation he planned to kill the family of the girl involved (Ellen), and then

the girl herself. From these two circumstances the jury could reasonably have

concluded it inconceivable that Hajek would not similarly have confided his

sadistic and murderous plan to Vo, one of his best friends, whom he enlisted to

carry out the plan.


Third, the evidence did not show that Vo passively followed Hajek in the

activities leading up to the murder. To the contrary, the evidence established that

Vo was an active participant who often took the lead in executing the plan. It was

Vo who tied up Su Hung, Vo who threatened Cary with a knife, and Vo who told

Cary he wanted to teach Ellen a lesson. When Ellen did not come home as

anticipated and time was passing, Vo became impatient and forced Cary to go out

on a search for Ellen to bring her home, presumably so that the killing could


Finally, all the evidence is consistent with a conclusion that Vo actively

participated in the torture of Su Hung. The evidence established that each

defendant went several times to the bedroom where the victim was being held in

isolation. Thus, Vo was as likely as Hajek to have inflicted some or all of the

victim’s nonlethal and lethal wounds. Because Vo was the only defendant seen

possessing and using a knife, the jury could reasonably have concluded that Vo

inflicted the shoulder stabbing, chest punctures, and throat slashing. Although Vo

points to the minute amounts of the victim’s blood on Hajek’s glove and coat as

evidence that Hajek, not Vo, killed Su Hung, such evidence did not foreclose a

conclusion that Vo tortured or killed the victim. Indeed, there was evidence that a

second pair of gloves, presumably Vo’s, was found on the kitchen table.19

Additionally, a knife that later tested positive for blood was found lying over a

puddle of water in the kitchen sink, although it could not be determined whether

the blood was human or animal, fresh or old. On this record, the jury could

reasonably have accepted the prosecution’s theory that Vo removed his gloves to

use the knife on the victim and then washed both his hands and the knife in the


Although Cary had seen Vo wearing gloves when he held a knife to her

throat, Tony testified that Vo was not wearing gloves later on when Vo gagged
and threatened to kill Tony in the upstairs room.


kitchen sink. Thus, while it is plausible that Hajek used the knife on Su Hung, it is

just as plausible that both of them, or perhaps only Vo, did so.

In any event, even if Vo did not personally inflict the lethal and nonlethal

wounds on Su Hung, there was substantial evidence showing that Vo shared

Hajek’s torturous intent and aided and abetted the commission of torture murder.

Considering all the evidence in the light most favorable to the judgment, and

presuming the existence of every fact the jury could reasonably deduce from the

evidence, we conclude the jury could reasonably have found that Vo shared the

intent to torture and murder the victim.

In sum, we find that the totality of the circumstances of the crime amply

demonstrated an intent to torture, and that substantial evidence supports the torture

murder convictions and torture-murder special-circumstance findings as to both

defendants. (Streeter, supra, 54 Cal.4th at p. 246 [where evidence supports first

degree murder conviction on torture-murder theory it also supports a finding of

torturous intent for purpose of the torture-murder special-circumstance


Furthermore, and in any event, ample evidence supports both defendants’

first degree murder convictions on a deliberate and premeditated murder theory.

Defendants arrived at the Wang residence in furtherance of their plan to exact

revenge on Ellen. The circumstances of the murder, including the evidence of

defendants’ planning, motive, and the manner of killing, indicate it was conduct

undertaken with “preexisting thought and reflection” and was not the result of “an

unconsidered rash impulse.” (Houston, supra, 54 Cal.4th at p. 1216 [planning,


motive, and manner of killing are relevant to resolving issue of premeditation and


c. Attempted murder

Defendants challenge the denial of their section 1118.1 motions for

acquittal of the attempted murder counts involving Cary, Alice, Tony, and Ellen.

They also contend the evidence is insufficient to support their convictions on these

counts. Although we may look to the entire record to evaluate the latter

contention, we find we may dispose of both contentions by reviewing the evidence

adduced in the prosecution’s case-in-chief.

“Attempted murder requires the specific intent to kill and the commission

of a direct but ineffectual act toward accomplishing the intended killing.” (People

v. Ervine (2009) 47 Cal.4th 745, 785.) “The overt act element of attempt requires

conduct that goes beyond ‘mere preparation’ and ‘show[s] that [defendant] is

putting his or her plan into action.’ [Citations.] [¶] . . . [T]he line between mere

preparation and conduct satisfying the act element of attempt often is difficult to

determine; the problem ‘is a question of degree and depends upon the facts and

circumstances of a particular case.’ [Citation.] The act that goes ‘beyond mere

preparation’ need not constitute an element of the target crime [citation], and it

‘ “need not be the ultimate step toward the consummation of the design.” ’

[Citation.] Instead, ‘ “it is sufficient if [the conduct] is the first or some

subsequent act directed towards that end after the preparations are made.” ’

[Citation.] In other words, we have explained, the act must represent ‘ “some


Having concluded that substantial evidence supports defendants’ first

degree murder convictions on torture-murder and premeditated murder theories,
we need not, and do not, address whether substantial evidence supports
defendants’ first degree murder convictions on a burglary-murder or robbery-
murder theory.


appreciable fragment of the crime.” ’ [Citations.]” (People v. Watkins, supra, 55

Cal.4th at p. 1021.) For the reasons below, we find substantial evidence of

defendants’ attempt to murder Cary, Alice, Tony, and Ellen.

The evidence presented in the prosecution’s case-in-chief included the

following. Hajek told Moriarty he planned to kill Ellen and her family in

retaliation for his altercation with Ellen, and to make the crime appear like a

robbery. Although Vo did not participate in this conversation, the evidence

showed that Vo was present at Hajek’s house with Nguyen when Hajek and Ellen

were exchanging hostile phone calls later that evening, and that Vo also had an

unrequited romantic interest in Nguyen. The evidence also showed that Vo and

Hajek were good friends and that they acted in concert the day of the crimes. That

morning, defendants drove a stolen van and parked it some distance from the

Wang residence. Wearing gloves and armed with a pellet gun, they gained

entrance to the Wang residence. Hajek pointed the gun at Alice, and Vo bound

and blindfolded Su Hung and isolated her by moving her to an upstairs room.

Over the course of several hours, defendants, either jointly or individually, held

four members of the Wang family hostage; accosted the family members with

weapons and threatened to kill them; went out in search of Ellen, presumably to

force her home and start the planned killings; refused to negotiate with Cary or

Tony, but insisted on waiting for Ellen; bound and gagged Tony in an upstairs

room, just as they had his mother-in-law; and killed Su Hung. Defendants also

ransacked the house, inferentially in furtherance of their plan to make it appear as

if a robbery had occurred. Their plot to kill Ellen and her entire family might very

well have succeeded had the police not been called to intervene. On this record,

there was substantial direct and circumstantial evidence that each defendant


harbored a specific intent to kill, that they agreed on a plan for doing so, and that

each took significant steps in putting their plan into action.

Although Hajek made explicit statements concerning his murderous intent

to Moriarty, he argues those statements alone cannot constitute the corpus delicti

of the crime. (People v. Ochoa (1998) 19 Cal.4th 353, 450 [prosecution must

establish the corpus delicti of the crime by evidence independent of the

defendant’s extrajudicial statements].) While true, this does not help him. “The

independent evidence [establishing the corpus delicti of a crime] may be

circumstantial, and need only be ‘a slight or prima facie showing’ permitting an

inference of injury, loss, or harm from a criminal agency, after which the

defendant’s statements may be considered to strengthen the case on all issues.”

(People v. Alvarez (2002) 27 Cal.4th 1161, 1181.) The same “ ‘slight acts’ ”

standard applies to evidence establishing the overt acts for purposes of attempt.

(People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8 [“[W]e have long

recognized that ‘[w]henever the design of a person to commit crime is clearly

shown, slight acts in furtherance of the design will constitute an attempt.’ ”]; see

People v. Dillon (1983) 34 Cal.3d 441, 455; People v. Morales (1992) 5

Cal.App.4th 917, 926-927.) Here, the independent evidence of Hajek’s actions at

the Wang residence was more than sufficient to permit consideration of his

statements to Moriarty regarding his intent.

Vo contends Hajek’s statements to Moriarty, which were not made in Vo’s

presence and of which he claims no knowledge, constituted the only evidence the

prosecution presented of his intent to murder Ellen and her family. That is

incorrect. As indicated, there was evidence that Vo was infatuated with Nguyen

and that he was aware of the altercation involving her, Hajek, and Ellen, because

he was at Hajek’s house during some of the hostile calls between Hajek and Ellen.


The evidence also shows that Vo went to the Wang residence with Hajek and

participated fully in the criminal conduct that occurred over the course of several

hours, often taking the lead. Indeed, Vo told Cary at one point he was going to

teach Ellen a lesson.

From the facts and circumstances surrounding Vo’s activities, a jury could

reasonably have concluded that he was aware of Hajek’s plan to kill all the

members of the Wang family and shared Hajek’s intent to do so. Under the

applicable standard of review, it matters not whether the circumstances might also

reasonably support a different finding. (People v. Watkins, supra, 55 Cal.4th at

p. 1020.)

Both defendants maintain there was insufficient evidence of an act that

went beyond mere preparation. We reject their claim under the “ ‘slight acts’ ”

rule cited above. (People v. Superior Court (Decker), supra, 41 Cal.4th at p. 8.)

At the point defendants entered the Wang residence and took Alice and Su Hung

hostage, it can fairly be said they were “ ‘ “actually putting [their murderous] plan

into action.” ’ ” (Id. at p. 9; People v. Morales, supra, 5 Cal.App.4th at pp. 926-

927.) Certainly, their subsequent conduct, up to and including the actual murder

of Su Hung, reflected far more than slight acts toward commission of their plan to

kill the entire Wang family.

In sum, the record contains substantial evidence of defendants’ attempt to

murder Cary, Alice, Tony, and Ellen.

d. Hajek’s firearm use enhancements

Pursuant to former section 12022.5, subdivision (a), counts 1 through 9 of the

information alleged that Hajek personally used a firearm, “to wit: [a] PELLET

GUN,” in the commission of the offenses. The jury found these allegations true,

and Hajek was sentenced to five years on each of the enhancements for counts 1


through 9. Hajek contends that a change in the law excluding pellet guns from the

definition of a firearm requires that we vacate or strike these nine firearm use

enhancements. We agree in part.

Former section 12022.5 was part of part 4, title 2 of the Penal Code

pertaining to control of deadly weapons. Prior to 1991, the definition of “firearm”

for purposes of former section 12022.5 was set forth in sections 12001 and

12001.1, and section 12001.1 at the time included pellet guns within its definition.

(Former § 12001.1, added by Stats. 1988, ch. 1605, § 3, p. 5821.) In 1991, the

Legislature repealed section 12001.1 (Stats. 1991, ch. 950, § 4, p. 4324) and

amended section 12001 (Stats. 1991, ch. 955, § 1.1, p. 4451). As amended in

1991, section 12001 did not include pellet guns within the definition of “firearm”

for purposes of any title 2 enhancement. (§ 12001, subd. (b), added by Stats.

1991, ch. 955, § 1.1, p. 4451.) The only reference to pellet guns was in

subdivision (g) of section 12001, which expanded the definition of “firearm” for

purposes of prohibiting the sale of firearms to minors.

In People v. Vasquez (1992) 7 Cal.App.4th 763 (Vasquez), a jury had

convicted the defendant of four counts of robbery, with enhancements for being

armed with a firearm and personal use of a firearm. Because the weapon that was

the basis of the enhancements was a pellet gun, the defendant argued on appeal

that the repeal of section 12001.1 and the amendment of section 12001 required

reversal of the enhancement findings. The Court of Appeal agreed: “Application

of this new statutory definition for ‘firearm,’ or restricted definition, to Vasquez’s

crimes committed before its operative date (Jan. 1, 1992) changes the legal

consequences of his criminal conduct. [Citation.] Such application is permissible

because the restricted definition generally favors defendants. [Citation.]”


(Vasquez, at p. 767.) Accordingly, the court reversed the true findings of all the

firearm enhancements. (Id. at p. 769.)

The Vasquez court relied heavily on the rule articulated in In re Estrada

(1965) 63 Cal.2d 740 (Estrada), which established an exception to the general rule

that no part of the Penal Code is retroactive. (§ 3 [no part of the Penal Code is

retroactive “unless expressly so declared”]; see Vasquez, supra, 7 Cal.App.4th at

pp. 767-769.) In Estrada, we held that “where [an] amendatory statute mitigates

punishment and there is no saving clause, the rule is that the amendment will

operate retroactively so that the lighter punishment is imposed.” (Estrada, at

p. 748.)

As we recently explained, Estrada represents “an important, contextually

specific qualification to the ordinary presumption that statutes operate

prospectively: When the Legislature has amended a statute to reduce the

punishment for a particular criminal offense, we will assume, absent evidence to

the contrary, that the Legislature intended the amended statute to apply to all

defendants whose judgments are not yet final on the statute’s operative date.

[Citation.] We based this conclusion on the premise that ‘ “[a] legislative

mitigation of the penalty for a particular crime represents a legislative judgment

that the lesser penalty or the different treatment is sufficient to meet the legitimate

ends of the criminal law.” ’ [Citation.] ‘ “Nothing is to be gained,” ’ we reasoned,

‘ “by imposing the more severe penalty after such a pronouncement . . . other than

to satisfy a desire for vengeance” ’ [citation] — a motive we were unwilling to

attribute to the Legislature.” (People v. Brown (2012) 54 Cal.4th 314, 323


Importantly, however, while acknowledging the continuing viability of the

Estrada rule, we have emphasized its narrowness: “Applied broadly and literally,


Estrada’s remarks about section 3 would . . . endanger the default rule of

prospective operation. Recognizing this in Evangelatos [v. Superior Court (1988)

44 Cal.3d 1188], we declined to follow Estrada’s remarks about section 3 and

held that ‘language in Estrada . . . should not be interpreted as modifying this

well-established legislatively-mandated principle.’ [Citation.] Accordingly,

Estrada is today properly understood, not as weakening or modifying the default

rule of prospective operation codified in section 3, but rather as informing the

rule’s application in a specific context by articulating the reasonable presumption

that a legislative act mitigating the punishment for a particular criminal offense is

intended to apply to all nonfinal judgments. [Citation.]” (Brown, supra, 54

Cal.4th at p. 324.)

We agree that, thus understood, Vasquez properly applied the Estrada rule to

the 1991 repeal of section 12001.1 and amendment of section 12001. Consistent

with Vasquez, we conclude that, because Hajek’s judgment was not yet final at the

time of the legislative action, his firearm use enhancements involving the use of a

pellet gun must be struck.

That, however, does not end the discussion. In People v. Schaefer (1993)

18 Cal.App.4th 950, the same division of the Court of Appeal that decided

Vasquez was confronted by a similarly situated defendant who also sought reversal

of true findings of firearm use enhancements because he, too, had been armed with

a pellet gun when committing the crimes. Schaefer agreed the defendant was

entitled to the benefit of Vasquez, but went on to conclude that “Vasquez [did] not

eliminate the law holding a pellet gun to be a deadly or dangerous weapon within

the meaning of Penal Code section 12022, subdivision (b). [Citation.]” (Schaefer,

at p. 951.) Reasoning that the defendant’s admission of the firearm use

enhancements (former § 12022.5) necessarily included his admission of deadly or


dangerous weapon enhancements (former § 12022, subd. (b) (former section

12022(b)), Schaefer struck the former enhancements and replaced them with

enhancements under the latter statute, resulting in a reduced sentence. (Schaefer,

at p. 951.)

Like the defendant’s admissions in Schaefer, the jury’s true findings on the

firearm use enhancements (former § 12022.5, subd. (a)) necessarily included true

findings on deadly or dangerous weapon use enhancements (former § 12022(b)).

Consistent with Schaefer, we order that Hajek’s firearm use enhancements be

struck and replaced with deadly or dangerous weapon use enhancements.

e. Vo’s knife use enhancements

The amended information alleged that Vo used a deadly weapon, to wit, a

knife, in the commission of the attempted murders of Cary, Alice, Tony, and Ellen

(counts 2 through 5), the kidnapping of Cary (count 6), and the false imprisonment

of Tony (count 9). (Former § 12022(b).) The jury found these allegations true.

Vo contends the evidence was insufficient to support the knife use allegations and


“ ‘We review the sufficiency of the evidence to support an enhancement

using the same standard we apply to a conviction. [Citation.] Thus, we presume

every fact in support of the judgment the trier of fact could have reasonably

deduced from the evidence.’ [Citation.]” (People v. Wilson (2008) 44 Cal.4th

758, 806.) “The question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

elements of the underlying enhancement beyond a reasonable doubt.” (People v.

Alvarez (1996) 14 Cal.4th 155, 225.)

At the time of Vo’s crimes, former section 12022(b) provided: “Any

person who personally uses a deadly or dangerous weapon in the commission or


attempted commission of a felony shall, upon conviction of such felony or

attempted felony, in addition and consecutive to the punishment prescribed for the

felony or attempted felony of which he or she has been convicted, be punished by

an additional term of one year, unless use of a deadly or dangerous weapon is an

element of the offense of which he or she was convicted.” (Stats. 1989, ch. 1284,

§ 2, p. 5058.) This provision represents a legislative judgment that the use of a

deadly or dangerous weapon in the commission of some felonies “justifies an

additional penalty to that prescribed for the underlying felonies.” (People v. Wims

(1995) 10 Cal.4th 293, 305.) “In order to find ‘true’ a section 12022(b) allegation,

a fact finder must conclude that, during the crime or attempted crime, the

defendant himself or herself intentionally displayed in a menacing manner or

struck someone with an instrument capable of inflicting great bodily injury or

death. [Citations.]” (Id. at p. 302.)

In determining whether there was substantial evidence of Vo’s knife use,

we may properly consult cases construing the term “uses” in other enhancement

statutes under “ ‘The Dangerous Weapons’ Control Law.’ ” (People v. Masbruch

(1996) 13 Cal.4th 1001, 1006.) Hence, we may rely on cases construing the term

as it is understood for purposes of section 12022.5, which addresses personal use

of a firearm in the commission or attempted commission of a felony. (People v.

James (1989) 208 Cal.App.3d 1155, 1163; see People v. Wilson, supra, 44 Cal.4th

at pp. 806-807 [construing “uses” in former § 12022.5, subd. (a)]; People v.

Granado (1996) 49 Cal.App.4th 317, 325 [same] (Granado).) As we have

recognized in the context of former section 12022.5, subdivision (a), “ ‘The

obvious legislative intent to deter the use of firearms in the commission of the

specified felonies requires that “uses” be broadly construed.’ [Citation.] ‘Thus

when a defendant deliberately shows a gun, or otherwise makes its presence


known, and there is no evidence to suggest any purpose other than intimidating the

victim (or others) so as to successfully complete the underlying offense, the jury is

entitled to find a facilitative use rather than an incidental or inadvertent

exposure.’ ” (People v. Wilson, supra, 44 Cal.4th at pp. 806-807, quoting

Granado, supra, 49 Cal.App.4th at p. 325.)

In Granado, the Court of Appeal, applying these principles, upheld a

firearm use enhancement as to a victim who was not aware the defendant was

armed and did not see the firearm. The defendant and another man confronted the

two victims, Walter and Wilfredo Calderon, on the street and demanded money

from them. Defendant took a gun from his waistband, which Walter saw, but

Wilfredo fled without apparently having seen the gun. (Granado, supra, 49

Cal.App.4th at pp. 320-321.) On appeal, the defendant argued that the firearm use

enhancement as to Wilfredo should be set aside because the evidence did not show

that Wilfredo was aware the defendant was armed with a gun. In a thoughtful

opinion, the Court of Appeal rejected the argument. As the court pointed out, the

underlying purpose of the firearm use statute is to deter defendants from using a

firearm. “At its core the statute addresses the pervasive and inherent escalation of

danger which arises from the defendant’s act of deployment. By merely bringing

a gun ‘into play,’ the defendant removes impediments to its actual discharge and

thus enhances the danger of violent injury not only through an intentional act by

the victim or a third party, but through an impulsive or inadvertent act by the

defendant.” (Id. at p. 327.) In light of this purpose, the court reasoned, “[t]o

excuse the defendant from this consequence merely because the victim lacked

actual knowledge of the gun’s deployment would limit the statute’s deterrent

effect for little if any discernible reason.” (Ibid.) We find this reasoning equally


applicable in the context of deadly or dangerous weapon use enhancements under

former section 12022(b).

Vo contends that, “[a]side from the one brief period” when he held a knife

“near” Cary before putting it away, there was no other evidence he was seen in

possession of, or using, a knife. We disagree. Applying the principles articulated

above, we find substantial evidence of Vo’s knife use as to all victims.

The prosecution’s case-in-chief included the following evidence. The

police discovered two knives in the stolen van in which defendants arrived at the

Wang residence, showing that defendants apparently contemplated, from the

beginning, use of a knife to carry out their plan to kill Ellen and her family. The

murder victim’s throat had been slashed by a “sharp bladed instrument” that the

coroner believed was a knife, and her shoulder and chest also disclosed several

nonlethal injuries inflicted by a knife. Thus, it was clear that defendants’ arsenal

anticipated knife use, and a knife was indeed used in committing the crimes.

Turning specifically to Vo’s knife use, Alice testified she watched Vo arm

himself with a knife and hide in the bathroom. Then, when Cary entered the

house, Vo deliberately held the knife to Cary’s throat. According to Cary’s

testimony, Alice told her not to scream so that Vo would not hurt them. This

sufficiently established Vo’s use of the knife not only against Cary, but also

against Alice.

Regarding Tony, Alice warned him that defendants had a knife as well as

guns. Alice’s remark was clearly based on her observation of Vo’s open use of the

knife on her mother. Thus, Vo’s knife use against Cary and Alice had the

additional direct effect of instilling fear in Tony and securing his compliance

when, later, defendants tied him up and took him upstairs. This evidence was

sufficient to establish knife use against Tony. (See People v. Wilson, supra, 44


Cal.4th at p. 807 [firearm use need not be strictly contemporaneous with the base

felony; “ ‘[A] jury could reasonably conclude that although defendant’s presence

with the victims was sporadic, the control and fear created by his initial firearm

display continued throughout the encounter.’ ”].)

The jury also found true the knife use enhancement in connection with the

attempted murder count involving Ellen, even though Ellen was not present at the

Wang residence. Just as the fortuity of Ellen’s absence does not lessen Vo’s

culpability for attempted murder, given the substantial evidence of his intent to kill

and his commission of an overt act, neither does such fortuity render insufficient

the evidence supporting the knife enhancement on this count. From the outset,

defendants were evidently prepared to use knives to murder Ellen and her family.

They did, in fact, use a knife to kill Su Hung. As was true in Granado, where one

of the victims was not aware the defendant was armed, to excuse Vo from the

consequence of his knife use merely because Ellen lacked actual knowledge of the

knife’s deployment “would limit the statute’s deterrent effect for little if any

discernible reason.” (Granado, supra, 49 Cal.App.4th at p. 327.)

In sum, Vo’s intentional use and display of a knife to intimidate and control

the victims who either saw the knife (Cary and Alice) or were made aware of its

use (Tony) facilitated defendants’ plan to murder the entire Wang family,

including Ellen. Accordingly, we conclude the trial court did not abuse its

discretion in refusing to grant a directed verdict of acquittal on the knife use

allegations and that sufficient evidence supports all the knife use enhancements

under former section 12022(b).


2. Use of Uncharged Conspiracy as Theory of Liability

Although defendants were not charged with the substantive offense of

conspiracy, the prosecutor used conspiracy as a theory of derivative liability.

Defendants challenge the use of uncharged conspiracy for this purpose.

The Attorney General contends the claim is forfeited because neither

defendant objected to the prosecutor’s use of uncharged conspiracy as a theory of

liability. Both defendants had objected to the trial court’s giving of conspiracy

instructions, but their contention was limited to the perceived insufficiency of

evidence of a conspiracy and did not assert the theory was legally impermissible.

Nonetheless, even assuming the claim has been preserved, its substance is


“Conspiracy principles are often properly utilized in cases wherein the

crime of conspiracy is not charged in the indictment or information. In some

cases, for example, resort is had to such principles in order to render admissible

against one defendant the statements of another defendant. [Citations.] In others

evidence of conspiracy is relevant to show identity through the existence of a

common plan or design. [Citation.] In still others the prosecution properly seeks

to show through the existence of conspiracy that a defendant who was not the

direct perpetrator of the criminal offense charged aided and abetted in its

commission. [Citations.]” (People v. Durham (1969) 70 Cal.2d 171, 180-181,

fn. 7.)

Conspiracy can itself be the basis of derivative liability quite apart from

aiding and abetting principles. “It is long and firmly established that an uncharged

conspiracy may properly be used to prove criminal liability for acts of a

coconspirator. [Citations.] ‘Failure to charge conspiracy as a separate offense

does not preclude the People from proving that those substantive offenses which


are charged were committed in furtherance of a criminal conspiracy [citation]; nor,

it follows, does it preclude the giving of jury instructions based on a conspiracy

theory [citations].’ [Citation.]” (People v. Belmontes (1988) 45 Cal.3d 744, 788-

789.) Contrary to Hajek’s assertion, use of an uncharged conspiracy does not

violate state law, even though the statutory definition of “principals” set forth in

section 31 does not include conspirators. (People v. Valdez (2012) 55 Cal.4th 82,

149-150 (Valdez).)

In Valdez, the defendant argued that the use of an uncharged conspiracy

creates a constitutionally impermissible conclusive presumption “ ‘that a person

who engages in an uncharged conspiracy to commit a substantive offense is guilty

of the substantive offense later committed by others.’ ” (Valdez, supra, 55 Cal.4th

at p. 150.) We disagreed: “ ‘[L]ike aiding and abetting, conspiracy (as used here)

is itself a theory of liability. . . . The instructions given here did not tell the jury

that it could presume any particular element of murder, including intent, based on

proof of predicate facts. Instead, the instructions specified that, as an alternative

to finding, based on the elements of murder, that [defendant] himself committed or

aided in the crime, it could find him responsible for the crime based on his

participation in a conspiracy to commit murder. This correctly stated the law

concerning conspiracy as an alternative theory of liability. [Citations.]

Accordingly, there was no error.’ ” (Ibid.) Hajek advances the same claim, and,

for the reasons stated in Valdez, we again reject it.

Both defendants also contend the use of an uncharged conspiracy violated

due process by depriving them of notice of the charges against them. Assuming,

without deciding, the claim is not forfeited, it is meritless. “ ‘Due process of law

requires that an accused be advised of the charges against him so that he has a

reasonable opportunity to prepare and present his defense and not be taken by


surprise by evidence offered at his trial.’ ” (People v. Seaton (2001) 26 Cal.4th

598, 640-641.) Defendants here were so advised.

By the time the trial began, defendants were well aware the prosecutor

intended to proceed on a conspiracy theory to establish derivative liability. For

example, in opposing Vo’s motion to suppress evidence removed during a search

of his locker, the prosecutor argued that the evidence consisting of writings by Vo

and Nguyen was relevant to establish motive and a conspiracy. At the hearing on

the motion, the prosecutor repeatedly referred to conspiracy as a basis for the

admission of those documents. Additionally, defendants’ objections to the

admission of Hajek’s letters to Vo questioned whether such letters were relevant to

the prosecutor’s conspiracy theory. On this record, defendants cannot plausibly

maintain that they were surprised or unaware of this theory or unable to prepare to

defend against it. (See People v. Pike (1962) 58 Cal.2d 70, 88-89 [no “element of

surprise or unfairness” where, before trial began, defendant was “well aware” that

“the case against him was based on theories of conspiracy and aiding and


Vo argues the prosecutor “used his expansive conspiracy theory as a

substitute for evidence of” Vo’s guilt. This merely repeats his sufficiency of the

evidence claims, which we have already addressed and rejected. (See ante,

pt. II.B.1.) Vo also argues that use of the conspiracy theory permitted the

admission of improper evidence against him. This is, in part, a rehash of the

severance claim, which we have also already addressed and rejected. (See ante,

pt. II.A.1.) To the extent it challenges the admission of particular pieces of

evidence, we take up those challenges below. (See post, pt. II.B.3.)

Vo asserts the trial court erred by admitting evidence of a conspiracy

without first making a finding regarding the existence and the scope of such


conspiracy. Because Vo’s trial counsel neither requested such a preliminary

finding nor pressed the prosecution for an offer of proof, the claim is forfeited.

Certainly, the prosecution was entitled to present evidence to establish the

elements of conspiracy without first seeking leave of court, subject, of course, to

the evidentiary rules governing admissibility. (Cf. People v. Belmontes, supra, 45

Cal.3d at p. 789 [“There being evidence supportive of all the elements of a

conspiracy, the People were entitled to proceed on that alternative theory of

liability.”].) Vo’s claim is really no more than a reprise of his sufficiency

argument, addressed above, and his assertion, addressed below, that certain

evidence was improperly admitted against him.

Vo also argues his due process rights were violated because the prosecution

was not required to prove either the existence or the scope of the uncharged

conspiracy beyond a reasonable doubt. Again, his quarrel is with the sufficiency

of the evidence and the admissibility of certain evidence against him. Even taking

his claim at face value, it is without merit.

In Valdez, the defendant similarly argued it was error for the trial court to

have failed to instruct the jury that, to convict the defendant of murder based on

conspiracy, under a theory of derivative liability, it must unanimously agree as to

the existence and scope of the conspiracy and the defendant’s participation therein

beyond a reasonable doubt. We rejected the claim. (Valdez, supra, 55 Cal.4th at

p. 153.) “Under our prior decisions, ‘[i]t is settled that as long as each juror is

convinced beyond a reasonable doubt that defendant is guilty of murder as that

offense is defined by statute, [the jurors] need not decide unanimously by which

theory he is guilty. [Citations.]’ [Citation.] ‘Not only is there no unanimity

requirement as to the theory of guilt, the individual jurors themselves need not

choose among the theories, so long as each is convinced of guilt.’ [Citation.]”


(Ibid.) We applied these principles to an uncharged conspiracy when used “as an

alternative theory of liability for the charged, substantive crime of murder.” (Id. at

p. 154.) Because the jurors need not unanimously agree on the theory of a

defendant’s guilt, a court may discharge its obligations by instructing on the

elements of conspiracy and the prosecution’s burden to prove the defendant’s guilt

of murder beyond a reasonable doubt. That is what the court did here.

Accordingly, we reject defendants’ claim that the prosecution’s use of an

uncharged conspiracy as a basis of derivative liability was impermissible. We

address defendants’ challenges to the conspiracy instructions below. (See post,

pt. II.B.4.d.)

3. Evidentiary Issues

a. Moriarty’s conversation with Hajek

Moriarty testified that Hajek called her the night before the murder. He

talked about the altercation he and Nguyen had had with an unnamed girl and his

fight with her a few days earlier. He also spoke of his plan to get revenge by

going to the girl’s home, killing her family in front of her, and then killing her,

while making his attack look like a robbery. Initially, Moriarty testified that in

speaking of his plan, Hajek used the word “I,” implying only he would do these

things. However, she acknowledged she had told police that Hajek talked about

going to the victim’s house with two or three others, and had so testified at the

preliminary hearing. On cross-examination by Vo’s attorney, she clarified that

when Hajek spoke of entering the house and killing the girl and her family, he

spoke only of himself and not of anyone else. She again acknowledged she had

indicated to police and at the preliminary hearing that Hajek had referred to

unnamed others in carrying out the plan, but added she did not remember using the

words attributed to her in the police interview.


Vo argues that admission of Moriarty’s testimony violated his

confrontation rights under Crawford v. Washington (2004) 541 U.S. 36 and that it

also violated the Aranda/Bruton rule. His claims are meritless.

In Crawford, the United States Supreme Court held that “[t]estimonial

statements of witnesses absent from trial [can be] admitted only where the

declarant is unavailable, and only where the defendant has had a prior opportunity

to cross-examine.” (Crawford v. Washington, supra, 541 U.S. at p. 59, fn.

omitted; Williams v. Illinois (2012) ___ U.S ___ [132 S.Ct. 2221, 2232].) Hajek’s

conversation with Moriarty cannot be deemed testimonial within the meaning of

Crawford because it was not a conversation involving an agent of the police.

The Aranda/Bruton argument fares no better. “The Aranda/Bruton rule

addresses the situation in which ‘an out-of-court confession of one defendant . . .

incriminates not only that defendant but another defendant jointly charged.’

[Citation.] ‘The United States Supreme Court has held that, because jurors cannot

be expected to ignore one defendant’s confession that is “powerfully

incriminating” as to a second defendant when determining the latter’s guilt,

admission of such a confession at a joint trial generally violates the confrontation

rights of the nondeclarant.’ ” (People v. Brown (2003) 31 Cal.4th 518, 537.) In

this case, however, Hajek’s statements to Moriarty were not “powerfully

incriminating” as to Vo. Instead, they reflected vague statements about unnamed

individuals whom Hajek might enlist in an event that had not yet occurred.

b. Defendants’ jailhouse conversation

After defendants were arrested and taken into custody, they were placed

into a room together and their conversation was secretly tape-recorded. The

prosecution prepared a transcript of the recording. Prior to trial, counsel for both

defendants objected to admission of both the tape and the transcript on the ground


that the tape was inaudible and the transcript misleading. Hajek argued the tape’s

inaudibility rendered it irrelevant and inadmissible under Evidence Code section

352. Hajek added that if the court were inclined to admit the tape, it should admit

only the tape and not the transcript. Vo argued that providing the jury with so

inaudible a tape would lead to speculation. The trial court ruled the tape

admissible, but not the transcript, because the latter was misleading.

Before the tape was played, both defense counsel stipulated that the court

reporter need not transcribe it. Detective Walter Robinson authenticated the tape.

Robinson acknowledged the overall quality of the tape was “fairly poor,” noting

that a “good deal” of defendants’ conversation was whispered and that parts of the

tape were inaudible and unintelligible. He testified further that “maybe 50 to 75

percent” of the conversation could be heard on the tape. He identified the

defendants’ two voices and acknowledged that, in general, Hajek spoke at a

normal level, while Vo whispered.

During guilt phase deliberations, the jury requested a transcript of the

conversation, which the court denied because the transcript was not in evidence.

At the hearing on defendants’ motion for a new trial, one of the jurors testified the

jury listened to the tape during guilt phase deliberations “on a very poor tape

recorder.” During the penalty phase, the jurors listened to the tape on a different

tape player.

Hajek argues that admission of the tape constituted an abuse of discretion,

because its poor quality rendered it unreliable, irrelevant or, if relevant, more

prejudicial than probative. (Evid. Code, §§ 210, 350, 352.) He also maintains that

its admission violated his federal constitutional rights to due process and

heightened reliability in capital cases. As support, Hajek cites the trial court’s

exclusion of the transcript prepared by the prosecution. He also relies on two


jurors’ testimony at the hearing on defendants’ new trial motions that during

penalty phase deliberations some jurors heard statements that Hajek contends were

not on the tape.

Evidence Code section 350 provides that “[n]o evidence is admissible

except relevant evidence.” “ ‘Relevant evidence’ means evidence . . . having any

tendency in reason to prove or disprove any disputed fact that is of consequence to

the determination of the action.” (Evid. Code, § 210.) Of course, a trial court may

“exclude evidence if its probative value is substantially outweighed by the

probability that its admission will . . . create substantial danger of undue prejudice

. . . .” (Evid. Code, § 352.) Questions regarding the admissibility of evidence are

committed to the trial court’s sound discretion. (People v. Homick, supra, 55

Cal.4th at p. 859.)

“[A] tape recording may be admissible even if substantial portions of it are

unintelligible.” (People v. Siripongs (1988) 45 Cal.3d 548, 574.) In light of the

broad statutory definition of relevance, and the considerable discretion the trial

court exercises in passing on questions of admissibility, we agree with People v.

Polk (1996) 47 Cal.App.4th 944 that “ ‘ “[t]o be admissible, tape recordings need

not be completely intelligible for the entire conversation as long as enough is

intelligible to be relevant without creating an inference of speculation or

unfairness.” [Citations.]’ [Citation.] [¶] Thus, a partially unintelligible tape is

admissible unless the audible portions of the tape are so incomplete the tape’s

relevance is destroyed.” (Id. at p. 952.)

Our review of the tape confirms Detective Robinson’s testimony that it is

generally of poor quality and that much of the conversation is whispered and

therefore inaudible or unintelligible. Nonetheless, we cannot conclude the quality

of the tape is so compromised as to be rendered completely irrelevant. Those


portions of the tape that are audible contain information generally corroborative of

the prosecution’s guilt phase case, mostly through Hajek’s words. For example,

Hajek states that he would have continued to flee from police had he not heard the

officer who was pursuing him prepare to fire his gun. Hajek also refers to the fact

that the victim was strangled and then had her throat slashed. Hajek talks about

having seen Ellen at the jail and expresses his anger at her.

Hajek’s intention to flee the scene, his knowledge of the manner in which

the victim was killed, and his continuing anger toward Ellen are relevant to the

issue of his guilt, because they show consciousness of guilt (flight), participation

in the murder (knowledge of how the victim was killed), and support for the

prosecutor’s theory of his motive (anger toward Ellen.) Similarly, while both

defendants discuss the charges they are likely to face (kidnapping and murder),

neither one at the same time denies culpability or expresses surprise or dismay at

those charges. Regarding Vo, the jury could reasonably have concluded that Vo’s

decision to whisper during the conversation reflected a desire not to be overheard,

supporting a conclusion that he was making incriminating statements.

While the nature of the recording may have made the evidence less

probative than if the entire conversation had been clearly captured, the court did

not abuse its discretion in determining that the audible portions nonetheless were

relevant and admissible. (People v. Roldan, supra, 35 Cal.4th at p. 688 [“A trial

court will not be found to have abused its discretion unless it ‘exercised its

discretion in an arbitrary, capricious, or patently absurd manner that results in a

manifest miscarriage of justice.’ ”].) The fact that the trial court excluded the

prosecutor’s transcript because it deemed the transcript misleading does not

suggest that the court believed the tape itself was without evidentiary value. The

court’s concern instead focused on the debatable accuracy of the transcript, a


concern shared by Hajek’s trial counsel who, while opposing admission of either

tape or transcript, preferred the tape alone be admitted. In addition, the posttrial

controversy over what the jurors heard on the tape during their penalty phase

deliberations has no bearing on the trial court’s initial ruling since, obviously, that

information was not before it. Finally, Hajek fails to demonstrate that the risk of

undue prejudice posed by the recording’s admission substantially outweighed its

probative value, such that exclusion under Evidence Code section 352 was

required. Accordingly, we conclude the trial court did not abuse its discretion in

admitting the tape.

Vo also argues that admission of the tape violated the Aranda/Bruton rule.

Because Vo failed to make any such objection below, the Attorney General

correctly notes the claim is forfeited.21 In any event, Vo fails to identify any

statements on the tape that would implicate that rule. Citing section 190.9’s

requirement that all proceedings in capital cases be on the record, Vo additionally

argues that the trial court erred by failing to direct the court reporter to transcribe

the tape when it was played in court. But both defense counsel stipulated that the

tape need not be transcribed, and the claim is therefore forfeited. (Houston, supra,

54 Cal.4th at p. 1213.) In any event, “it is sufficient [for purposes of section

190.9] that the record contains [this] recording[] and defendant had access to [it].”

(Id. at p. 1214.)

In sum, we conclude the admission of the tape was not an abuse of

discretion and did not violate defendants’ constitutional rights.


In response to the Attorney General’s forfeiture argument, Vo inaccurately

cites an objection he made to potential questioning by Hajek’s counsel of
Detective Robinson about the interview Robinson conducted with Hajek prior to
the taped conversation.


c. Hajek’s alleged interest in Satanism

Exhibit No. 64 was a letter that Hajek wrote to Vo while in custody, and it

included the following remarks: “The devil made me do it! Satan [drawing of a

pentangle]. I’m still trying to get a Satanic Bible in here.” During his

examination of Nguyen, the prosecutor asked her a series of questions about

Hajek’s interest in Satanism. Both Hajek and Vo objected to the prosecutor’s

initial question, “Did Mr. Hajek ever tell you about his interest in Satanism or

Satanic things?” Hajek objected on relevance grounds, and Vo on hearsay

grounds. Hajek withdrew his objection when the prosecutor argued the question

was relevant to Hajek’s mental state and motivation. With respect to Vo’s

relevance objection, the court instructed the jury, “it is a statement by Mr. Hajek

and it does not flop over to Mr. Vo.”

Hajek objected a second time when the prosecutor asked if Hajek was

interested in Satanic rituals, and the objection — “That assumes this young

woman even knows what a Satanic ritual is” — was sustained. The trial court also

sustained Hajek’s objection when the prosecutor asked Nguyen, “Ever hear him

say he wanted to kill someone as part of his Satanic beliefs?” The court, however,

overruled the objection to the prosecutor’s next question, “Did he ever say he

would kill the people in this case, Ellen’s grandmother, for this reason?” When

Nguyen answered, “No,” the prosecutor moved on to other subjects. Vo joined the

prosecutor in seeking to have exhibit No. 64 admitted, and the trial court admitted

the letter over Hajek’s objection.

On appeal, Hajek contends the admission of Nguyen’s testimony and

exhibit No. 64 was prejudicial error because evidence regarding Hajek’s interest in

Satanism was irrelevant or, if relevant, unduly prejudicial under Evidence Code

section 352. He further argues that the evidence should have been barred under


Evidence Code section 1101, subdivision (a), which provides that evidence of a

person’s character or trait of his or her character ordinarily “is inadmissible when

offered to prove his or her conduct on a specified occasion.” Finally, Hajek

asserts the admission of this evidence violated his Eighth Amendment interest in

heightened reliability in capital cases. We reject these contentions for the reasons


Here, a rational jury could have viewed Hajek’s statement in exhibit No. 64

— “The devil made me do it” — as an admission of guilt, contrary to his

statement to police in which he denied all responsibility. It was therefore relevant

and admissible on that point, and its admission was not error.

With respect to Hajek’s references to Satan and the Satanic Bible, even

assuming those statements should have been excluded, any error was harmless.

These brief references in a lengthy letter pale in comparison with the

overwhelming evidence of Hajek’s guilt. As to his claim that admission of such

evidence violated Evidence Code section 1101, subdivision (a), Hajek has

forfeited that claim by failing to raise it at trial.

For the same reason, Hajek was not prejudiced when the trial court

permitted the prosecutor to explore Hajek’s interest in Satanism with Nguyen, to

determine whether Hajek may have made similar remarks to her, given their close

relationship both before and after the offenses. Two of Hajek’s objections to

specific questions by the prosecutor to Nguyen were sustained, and he withdrew

another. As to the one question to which Hajek unsuccessfully objected, about

whether Hajek ever told Nguyen he had killed the victim because of his interest in

Satanism, Nguyen answered no, and the prosecutor moved on. Thus, despite

Hajek’s attempts on appeal to make it appear as if his alleged interest in Satanism


was a centerpiece of the prosecution’s case, these references were brief and


Vo contends the evidence of Hajek’s interest in Satanism was bad character

evidence that was admitted in violation of Evidence Code section 1101, which

tarred him by association. The argument is forfeited as Vo’s counsel failed to

object on this ground below. (People v. Kennedy (2005) 36 Cal.4th 595, 612

[“When an objection is made to proposed evidence, the specific ground of the

objection must be stated.”].) Moreover, as to exhibit No. 64, Vo’s counsel not

only failed to object on any ground but joined the prosecutor in seeking to have

the letter admitted. Finally, as to Nguyen’s testimony, the trial court instructed the

jury that that evidence applied only to Hajek and did not “flop over” to Vo. Vo

complains the trial court’s instruction was inadequate, but the onus was on Vo’s

counsel to have requested a clarifying instruction in that case and, having failed to

do so, he may not complain about it on appeal. (People v. Homick, supra, 55

Cal.4th at p. 873.) In any event, given that the references were not prejudicial to

Hajek directly, they could not have indirectly prejudiced Vo.

d. Other crimes evidence

Over Hajek’s objections, Vo was permitted to call James O’Brien and

Douglas Vander Esch as part of his defense that Hajek had lost control at the

crime scene and killed the victim without Vo’s knowledge. O’Brien testified to an

incident that occurred when he and Hajek were coworkers at a pizza parlor. At the

end of their shifts, Hajek, for no apparent reason, hit O’Brien in the face, breaking

his nose. Vander Esch, a correctional officer, testified that, when he declined


Hajek also complains that the prosecutor referred to the letter in his closing

argument. Hajek failed to object to the argument, and any issue as to its propriety
is forfeited. (People v. Ledesma, supra, 39 Cal.4th at p. 726.)


Hajek’s request to talk to a sergeant, Hajek went on a rampage, destroying jail

property. On appeal, Hajek contends the admission of this testimony violated

Evidence Code section 1101’s ban on bad character evidence and constituted an

abuse of discretion under Evidence Code section 352. We reject these claims.

Hajek himself had already introduced evidence of these incidents and other

criminal activity on his part in furtherance of his mental defect defense. Hajek’s

mother testified he was “explosive, angry” and “easily frustrated,” and had been

arrested for indecent exposure and separately for possession of nunchucks. Both

she and Hajek’s former probation officer testified that Hajek had fought with a

coworker at the pizza parlor, breaking the coworker’s nose. Hajek’s expert

witness, Dr. Minagawa, testified regarding an incident in which Hajek destroyed

jail property. Indeed, in lodging her objection to Vo’s intention to call O’Brien

and Vander Esch, Hajek’s attorney argued “the jury has heard extensive testimony

[about the two incidents] and it’s clear that Mr. Hajek and I are not disputing those


Thus, Vo’s evidence did no more than echo Hajek’s defense, and it was

introduced for essentially the same purpose: To show that Hajek was acting under

the influence of a mental defect or disease when the crimes occurred.

Accordingly, we find no error under either Evidence Code section 1101 or

Evidence Code section 352.

e. Testimony of Norman Leung

Hajek contends the trial court abused its discretion when it declined to

conduct an Evidence Code section 402 hearing before permitting the prosecutor to

call Norman Leung, a friend of Hajek’s. He also contends Leung’s testimony

should have been excluded under Evidence Code section 352. We find no abuse

of discretion under either provision of the Evidence Code.


i. Background

The prosecutor called Leung because three of Hajek’s jailhouse letters

referred to Leung in a manner that, the prosecutor argued, suggested Hajek had

attempted to enlist Leung into the conspiracy to kill Ellen and her family. The

prosecutor argued that the letters showed the plot was formed before defendants

went to the Wang residence. Both defendants objected to the admission of the

letters, Hajek essentially on relevance grounds and Vo on hearsay grounds.

Hajek’s counsel also objected to the prosecutor’s intention to call Leung to the

stand because, she argued, the prosecution got “nothing” from its earlier

interviews with Leung. She argued that “just by asking [Leung] were you

threatened by [Hajek] . . . is inherently prejudicial.” Vo’s counsel similarly

objected and requested that the trial court conduct an Evidence Code section 402

hearing to test the admissibility of the testimony before allowing the prosecutor to

call Leung as a witness at trial. The trial court rejected the request.

Leung was called to the stand. He testified that he was a good friend of

Hajek’s and a friend of Vo’s, and that Hajek, Vo, and Nguyen were friends with

each other. Leung professed lack of memory when asked about any matter related

to the crimes. In response to the prosecutor’s question about whether Leung had

gone into hiding after the crimes because he was afraid Hajek would harm him,

Leung testified, “It may have happened . . . . I can’t remember it.”

ii. Discussion

Although a prosecutor commits misconduct by intentionally eliciting

inadmissible evidence, “ ‘ “merely eliciting evidence is not misconduct.” ’ ”

(People v. Mills (2010) 48 Cal.4th 158, 199.)

Here, the prosecutor had a viable theory of the relevance and probative

value of Leung’s testimony, i.e., it might help establish an existing conspiracy to


kill Ellen and her family to show that Hajek attempted to recruit Leung to join that

conspiracy. Hajek’s objection to Leung’s testimony was that he was likely to be a

nonresponsive or hostile witness, based on Leung’s preliminary hearing testimony

and interviews with the prosecutor’s investigators. Be that as it may, absent a

showing that the prosecutor was operating in bad faith, the prosecutor was entitled

to call the witness for whatever value he could derive from his testimony,

including his demeanor on the stand. (People v. Scott (2011) 52 Cal.4th 452, 493

[“a witness’s ‘demeanor is always relevant to credibility’ ”]; Evid. Code, § 780,

subd.(a).) In this vein, it is clear, even from the cold transcript, that the jury could

reasonably doubt Leung’s credibility regarding his professed lack of memory as to

whether Hajek solicited him to join the conspiracy or whether he feared Hajek.

Moreover, to the extent defendants believed the prosecutor’s questions

regarding those topics were improper, they could have objected, but for the most

part they did not. Thus, they have forfeited any complaint on appeal regarding the

propriety of those questions. In sum, the record establishes that the prosecutor

called a witness he believed would be helpful to his case, and that the prosecutor’s

questions were asked in a good faith belief that the witness had knowledge of

those topics. (Cf. People v. Pearson (2013) 56 Cal.4th 393, 434 [“A prosecutor

may not ask questions of a witness suggesting facts harmful to a defendant without

a good faith belief that such facts exist.”].)

Finally, the trial court did not abuse its discretion by declining to conduct

an Evidence Code section 402 hearing based on defense counsels’ concern that

Leung would be a nonresponsive witness. (People v. Williams (1997) 16 Cal.4th

153, 196 [A trial court’s “broad discretion” to determine the admissibility of

evidence extends to “whether or not to decide [such] questions under Evidence

Code section 402”].) Nor did the court abuse its discretion by declining to exclude


Leung’s testimony under the provisions of Evidence Code section 352. (People v.

Lancaster (2007) 41 Cal.4th 50, 83 [“courts have broad discretion to weigh the

prejudicial impact of testimony against its probative value”].)

f. Testimony of McRobin Vo

Hajek contends the trial court erroneously allowed the prosecution to

question Vo’s brother, McRobin Vo, about Hajek’s unresponsive answers to

McRobin Vo’s questions regarding the crimes when he visited Hajek in jail.

Hajek asserts that, in doing so, the trial court permitted the prosecutor to violate

Doyle v. Ohio (1976) 426 U.S. 610. Hajek also asserts the testimony should have

been excluded as unduly prejudicial pursuant to Evidence Code section 352. The

claims are without merit.

McRobin Vo testified he had visited Hajek in jail. The prosecutor asked

him if he had questioned Hajek about what happened at the Wang residence. The

witness responded: “He just played it off about he didn’t really want to talk about

it.” Hajek’s attorney objected. At a hearing outside the presence of the jury,

counsel explained that questions about what Hajek had told the witness were

irrelevant. The prosecutor indicated he did not intend to ask any further questions

about those conversations, but he was interested in the witness’s “observations as

to [Hajek’s] mental state.” The following day, before trial recommenced, Hajek’s

attorney lodged an additional objection on Fifth Amendment grounds and also

cited Evidence Code section 352.

The Attorney General argues that Hajek has forfeited his Doyle claim

because Hajek’s counsel objected only after McRobin Vo had already testified to

the statement, and she did not then move to strike that testimony. We disagree.

Hajek’s attorney objected to the testimony as soon as it came in. In the course of

the hearing on the objection, she made Doyle and Evidence Code section 352


arguments. Although counsel raised these points the following day, after the

evening recess, the discussion about the basis of this objection was ongoing, and

she made these points before the prosecutor resumed his examination of McRobin


Nonetheless, the argument is without merit. “In Doyle, the United States

Supreme Court held that it was a violation of due process and fundamental

fairness to use a defendant’s postarrest silence following Miranda warnings to

impeach the defendant’s trial testimony. [Citation.]” (People v. Collins (2010) 49

Cal.4th 175, 203.) Doyle does not apply where, as here, the conversation in which

the defendant was silent involved a private party “absent a showing that such

conduct was an assertion of [the defendant’s] rights to silence and counsel.”

(People v. Eshelman (1990) 225 Cal.App.3d 1513, 1520.) In People v. Medina

(1990) 51 Cal.3d 870, we held the jury could draw adverse inferences from the

defendant’s silence when his sister asked him why he shot the victims, because the

“record [did] not suggest that defendant believed his conversation with his sister

was being monitored, or that his silence was intended as an invocation of any

constitutional right.” (Id. at p. 890.)

Similarly, nothing in the record before us suggests that Hajek’s refusal to

discuss the crimes with McRobin Vo was intended to be an invocation of his Fifth

Amendment rights. Moreover, the prosecutor “did not attempt . . . to use the

comment against defendant by inviting the jury to draw any adverse inferences

from the remark.” (People v. Thomas (2012) 54 Cal.4th 908, 936.)

We also reject Hajek’s assertion that admission of this brief testimony was

an abuse of the trial court’s discretion under Evidence Code section 352. For

purposes of that statute, prejudice “means evidence that tends to evoke an

emotional bias against the defendant with very little effect on issues.” (People v.


Crew (2003) 31 Cal.4th 822, 842.) The brief testimony was not an abuse of

discretion, prejudicial or otherwise.

g. Statements and writings by and about Hajek

Vo contends the admission of certain writings and statements by and about

Hajek violated Vo’s confrontation rights under both Crawford v. Washington,

supra, 541 U.S. 36, and the Aranda/Bruton rule. His claims either have been

previously disposed of, or are forfeited or meritless, or both.

i. Moriarty’s testimony

Vo repeats his assertion that Moriarty’s testimony regarding her phone

conversation with Hajek the night before the crimes violated Vo’s confrontation

rights. We have previously considered and rejected this claim. (See ante, pt.


ii. Tape of defendants’ conversation at the jail

Vo repeats his contention that admission of the audiotaped conversation

between him and Hajek violated the Aranda/Bruton rule. We have previously

considered and rejected this claim. (See ante, pt. II.B.3.b.)

iii. Dr. Minagawa’s testimony that Hajek denied killing Su Hung

Vo repeats the argument he made in connection with his severance claim

that Dr. Minagawa’s penalty phase testimony that Hajek denied killing Su Hung

violated the Aranda/Bruton rule. We have previously considered and rejected this

argument in the context of Vo’s severance claim. (See ante, pt. II.A.1.)


iv. Exhibit Nos. 63, 64, 65, 72, 73, 78, and 79

Exhibit Nos. 63, 64, 65, 72, 73, 78, and 79 are letters written by Hajek to

Vo after their arrest.23 Vo asserts the prosecution’s use of these letters violated

Vo’s confrontation rights, citing both Crawford v. Washington, supra, 541 U.S.

36, and the Aranda/Bruton rule, because Hajek made statements incriminating Vo

in the letters without being available for cross-examination.

As Vo concedes, exhibit Nos. 63 and 79 were not admitted into evidence

and therefore could not have had any impact on his confrontation rights. While

Vo claims the prosecutor quoted extensively from these letters, he fails to direct us

to where in the record the prosecutor did so. Even if the prosecutor did quote from

these letters, any claim as to the impropriety of his doing so is forfeited given Vo’s

failure to object. Also forfeited is Vo’s objection to the admission of exhibit No.

64. Indeed, as noted, Vo joined the prosecutor in urging that the letter be admitted

against Hajek. When the court admitted it against both defendants, Vo did not


Vo asserts he did object to the admission of page 3 of exhibit No. 65 and

exhibit Nos. 72, 73, and 78. However, Vo’s counsel objected on confrontation

grounds only with respect to exhibit No. 65 when he specifically invoked the

Aranda/Bruton rule. His objections to exhibit Nos. 72, 73, and 78 were all rote

and unelaborated objections on the grounds of hearsay, relevance, and Evidence

Code section 352, not the confrontation clause.

Under Evidence Code section 353, subdivision (a), a reviewing court

cannot grant relief on a claim that evidence was erroneously admitted unless a

timely objection was made “and so stated as to make clear the specific ground of


The letters are long and rambling. Given our conclusion that Vo has

forfeited the claims he now attempts to assert, we find it unnecessary to quote the
letters except as necessary to illuminate particular objections advanced by Vo.


the objection or motion.” “ ‘What is important is that the objection fairly inform

the trial court, as well as the party offering the evidence, of the specific reason or

reasons the objecting party believes the evidence should be excluded, so the party

offering the evidence can respond appropriately and the court can make a fully

informed ruling.’ ” (People v. Geier (2007) 41 Cal.4th 555, 609.) By failing to

comply with the statutory mandate of a timely and specific objection, Vo has

forfeited his confrontation claim with respect to exhibit Nos. 72, 73, and 78.

Even if he had not, we would conclude there was no violation of his

confrontation clause rights under Crawford. Private communications between

inmates are not testimonial, and their admission would not violate the principle

laid down in Crawford that bars the use at trial of testimonial out-of-court

statements as to which no opportunity for cross-examination was afforded.

(Crawford v. Washington, supra, 541 U.S. at p. 68; see U.S. v. Pelletier (1st Cir.

2011) 666 F.3d 1, 9 [in-custody inmate conversations were not testimonial

because “[t]hey were made not under formal circumstances, but rather to a fellow

inmate with a shared history, under circumstances that did not portend their use at

trial”].) Because “the confrontation clause is concerned solely with hearsay

statements that are testimonial” (People v. Cage (2007) 40 Cal.4th 965, 981), and

the letters are not testimonial, Vo’s rights under Crawford were not implicated by

their admission.

Moreover, even if Vo’s Aranda/Bruton claim was preserved, any error,

assuming error, would be harmless. Amid Hajek’s ramblings in exhibit No. 65, he

writes that he and Vo are “terrorists” and that “we are going to get away with

this.” In the first paragraph of exhibit No. 72, Hajek muses about the elements of

attempted murder, drawing a distinction between “intent” and “preparation.” He

writes: “So if anyone was going to kill the Wangs, they were only preparing to do


so.” He writes further: “And if my main goal was to kill Ellen, there was no way

we could do any act towards killing the family. Specially since I had (supposedly)

said to (Tevya) that we were going to wait [until] we had everybody — then kill.

Ellen was supposed to be last. So that means that we were only preparing to kill

everyone. So that means we can’t be convicted of attempted murder! Sound good

to you?’ In exhibit No. 73, in the context of complaining about his lawyer, Hajek

writes, “And what do you mean tagged along and Boom in jail? I won’t say

anymore. As for the case — WE ARE DOOMED.” In exhibit No. 78, Hajek

writes, “The D.A. is supposed to have a peice [sic] of evidence that is a for sure

that we planned to go over there,” and suggests the source of that evidence is

“Bucket” (Leung).

As noted, Aranda/Bruton error is scrutinized under the Chapman harmless

beyond a reasonable doubt standard. (People v. Burney (2009) 47 Cal.4th 203,

232.) This standard “ ‘ “ requir[es] the beneficiary of a [federal] constitutional

error to prove beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained.” [Citation.] “To say that an error did not

contribute to the ensuing verdict is . . . to find that error unimportant in relation to

everything else the jury considered on the issue in question as revealed in the

record.” ’ ” (People v. Pearson, supra, 56 Cal.4th at p. 463.)

For the most part, Hajek’s statements, rather than “expressly

incrimina[ting]” Vo (Lewis, supra, 43 Cal.4th at p. 456), are ambiguous. They can

be viewed as setting forth Hajek’s understanding of the legal and evidentiary case

that is being prepared against them rather than as admissions that defendants

committed the crimes. Hajek’s statements about the attempted murder charges are

carefully cast in hypothetical language, his statement about being doomed appears

to refer to asserted deficiencies in his lawyer’s representation and his reference to


the prosecutor’s evidence is speculation on his part. While we agree that certain

statements in exhibit No. 65 do expressly incriminate Vo, nonetheless they were

inconsequential on the issue of guilt when viewed in relation to the totality of the

evidence before the jury. Thus, even assuming admission of those statements

constituted Aranda/Bruton error, such error was harmless under the applicable

Chapman standard.

h. Crime scene and autopsy photographs

Vo, joined by Hajek, contends the trial court abused its discretion by

admitting crime scene and autopsy photographs of the murder victim. We reject

the claim. “ ‘ “The admission of allegedly gruesome photographs is basically a

question of relevance over which the trial court has broad discretion. [Citation.]

‘A trial court’s decision to admit photographs under Evidence Code section 352

will be upheld on appeal unless the prejudicial effect of such photographs clearly

outweighs their probative value.’ ” ’ ” (People v. Mills, supra, 48 Cal.4th at p.

191.) In this case, where torture murder and torture-murder special circumstances

were alleged and hotly contested, the autopsy photographs were undoubtedly

relevant and probative on that issue. The photographs were disturbing, but they

were not unnecessarily so. They “simply showed what had been done to the

victim; the revulsion they induce is attributable to the acts done, not to the

photographs.” (People v. Brasure (2008) 42 Cal.4th 1037, 1054.) Having

examined the photographs, we conclude their admission fell well within the trial

court’s broad discretion.

4. Instructional Error

a. Guilt phase instructions as a whole

Hajek, joined by Vo, asserts the multiplicity of instructions given in the

guilt phase were “hopelessly confusing.” The assertion does not rise to a showing


of error, much less reversible error. As the Attorney General points out, capital

cases are frequently tried on multiple theories of liability. Absent a showing of

error, “ ‘[w]e presume that jurors comprehend and accept the court’s directions.

[Citation.] We can, of course, do nothing else. The crucial assumption underlying

our constitutional system of trial by jury is that jurors generally understand and

faithfully follow instructions.’ [Citation.]” (People v. Homick, supra, 55 Cal.4th

at p. 867.)

b. Torture-murder special-circumstance instruction

Hajek, joined by Vo, contends an error in the torture-murder special-

circumstance instruction requires reversal. We find the error harmless under any


On the torture-murder special circumstance, the jury was instructed: “To

find that the special circumstance referred to in these instructions as murder

involving infliction of torture, is true, each of the following facts must be proved:

[¶] 1. A defendant intended to kill, or with intent to kill, aided and abetted in the

killing of a human being; [¶] 2. The defendant intended to inflict extreme cruel

physical pain and suffering upon a living human being for the purpose of revenge,

extortion, persuasion or for any sadistic purpose; [¶] 3. The torturous acts were

committed while the victim was alive; [¶] 4. A defendant did in fact inflict

extreme cruel physical pain and suffering upon a living human being no matter

how long its duration; [¶] 5. Awareness of pain by the deceased is not a necessary

element of torture.” (Italics added.)

Defendants focus on the discrepancy between the use of “A defendant” in

the first and fourth sentences of the instruction and the use of “The defendant” in

the second sentence. (Italics added.) They contend that, as given, the instruction

did not require a finding that each defendant individually intended to kill but only


that “a” defendant intended to kill. (People v. Davenport (1985) 41 Cal.3d 247,

271 [Torture-murder special circumstance requires proof of intent to kill and intent

to torture the victim].) They claim, moreover, that the inconsistencies between

these sentences may have confused the jury.

A somewhat similar argument was advanced in People v. Wilson, supra, 44

Cal.4th 758. In Wilson, a different version of the instruction was given but, as in

the instruction given here, there was a similar discrepancy between the use of the

phrases “A defendant” and “The defendant.” In the second sentence of the

instruction, the word ‘The’ was crossed out, and the instruction read: “ ‘[A]

defendant intended to inflict extreme cruel physical pain and suffering upon a

living human being for the purpose of revenge, extortion, persuasion or for any

sadistic purpose,’ ” while the third sentence read, “ ‘The defendant did in fact

inflict extreme cruel physical pain and suffering upon a living human being no

matter how long its duration.’ ” (Id. at pp. 802-803, fn. omitted.) The defendant

argued that the discrepancy was critical, because there were a number of other

participants in the crimes, and “[w]ithout a specific finding that he personally

intended to torture the victim . . . the jury may have believed that although he may

have participated in the acts of torture, only [the other participants] actually

harbored the requisite intent to torture the victim.” (Id. at p. 803.)

Preliminarily, we noted: “When an appellate court addresses a claim of

jury misinstruction, it must assess the instructions as a whole, viewing the

challenged instruction in context with other instructions, in order to determine if

there was a reasonable likelihood the jury applied the challenged instruction in an

impermissible manner.” (People v. Wilson, supra, 44 Cal.4th at p. 803.) Although

we concluded that instruction was “technically erroneous,” we examined the

evidence and found the error harmless because, among other things, the jury had


evinced no confusion regarding the instruction, there was substantial evidence that

the defendant personally harbored the intent to torture the victim, and the jury’s

finding regarding the other elements of the torture instruction precluded the

possibility that it would not have found intent to torture. (Id. at p. 804.)

Here, the issue is whether the instruction properly conveyed the

requirement of each defendant’s having intended to kill the victim. As we did in

Wilson, we agree that the instruction was erroneous in light of our decision in

People v. Davenport, supra, 41 Cal.3d at page 271. But, as in Wilson, we

conclude the error was harmless under any standard. (People v. Wilson, supra, 44

Cal.4th at p. 804.)

Hajek’s statement to Moriarty that he planned to revenge himself on Ellen

by killing her and her family and making it look like a robbery provided

compelling evidence of intent to kill the murder victim. That both defendants

intended to kill was borne out by their concerted actions. For example, defendants

parked their vehicle some distance from the house, brought gloves and weapons

with them, and gained uninvited access to the Wang residence. Once inside,

defendants held members of the family hostage while awaiting Ellen’s arrival and

refused offers by Cary and Tony to negotiate. Although defendants wore gloves,

presumably to avoid leaving fingerprints, they made no effort to hide their

identities from the victims, suggesting they intended to leave no witness alive.

The murder victim, and later Tony, were bound and isolated from the rest of their

family members so as to render them maximally vulnerable and unable to resist or

to call out for help. Defendants ransacked the house, evidently to give the

appearance that a robbery had occurred. These actions were consistent with their

agreed plan to kill Ellen and each member of her family. On this record, we find

any error harmless.


Hajek contends that the prosecutor’s closing argument conflated the

elements of torture murder and the torture-murder special circumstance, adding to

the jury’s confusion about the inconsistencies in the instruction. He claims that

the prosecutor attributed a causal element — the torture caused the victim’s death

— to the special circumstance, when causation was an element of torture murder

only. He also claims the prosecutor’s argument confused the jury about which

charge required the intent to kill. There is no indication in the record, however,

that the jurors were confused. (See People v. Wilson, supra, 44 Cal.4th at p. 804

[“there is no indication the jury was aware of the slight difference between the

written and oral versions of the instructions, as it asked no questions about this

point”].) To the extent the claim is that the prosecutor misled the jury in closing

argument, Hajek’s failure to object to the prosecutor’s comments forfeited such

claim. In any event, the prosecutor did not argue that a finding of intentional

killing as to each defendant was not required to find the torture-murder special

circumstance true. Moreover, Hajek’s counsel clearly told the jury it “must have

an intentional killing” before it could find true the torture-murder special


In further support of his claim, Hajek cites People v. Petznick (2003) 114

Cal.App.4th 663. In Petznick, the trial court erroneously instructed the jury that it

could find the torture-murder special circumstance true if it found “a defendant

rather than “the defendant” intended to torture the victim. (Id. at p. 686.)

Although the defendant was tried alone, there were three other participants in the

crime, all of whom were referred to as defendants in the instructions. The Court

of Appeal concluded that, “[t]hus, the jury could easily have understood a

defendant as referring to any one of the four participants.” (Ibid.) It concluded

the error was prejudicial because the prosecutor’s argument “did not refer to the


mental state requirement for the torture-murder special circumstance . . . so we

cannot say that argument might have cured the error,” and “[t]he jury

demonstrated its confusion on the issue of intent by its question concerning the

conspiracy instructions.” (Ibid.) Moreover, “the evidence that defendant intended

to torture the victim [was not] so overwhelming as to convince us the error was

harmless.” (Ibid.)

Petznick is distinguishable. In the case before us, the evidence of each

defendant’s intent to kill was compelling. The jury demonstrated no confusion

regarding the intent issue posed by the instruction, and Hajek’s attorney

specifically told the jury it could not find the special circumstance true absent an

intentional killing. Accordingly, Petznick does not support a finding of prejudicial

error here.

c. Accomplice instructions

Vo testified in his own behalf, denying any knowledge of, or responsibility

for, Su Hung’s death. On appeal, Hajek contends the trial court should have

instructed, sua sponte, with CALJIC No. 3.18, which cautions the jury that the

testimony of an accomplice “should be viewed with caution.” We rejected the

same argument in People v. Abilez (2007) 41 Cal.4th 472, where, as here, a

codefendant testified in his own behalf. “At the time of trial, there was no law

indicating that a court must provide CALJIC No. 3.18 sua sponte when a

codefendant introduces accomplice testimony, and defendant did not request such

an instruction.” (Id. at p. 519.) Hajek concedes that Abilez applies to this case as

well but urges us to reconsider our decision. He offers no persuasive reason to do



d. Conspiracy instructions

Hajek, joined by Vo, contends that the conspiracy instructions were

confusing and incomplete, and thus required reversal of his conviction.

Specifically, he cites as instructional error: (1) the failure to identify any overt

acts; (2) the failure to properly identify the object of the conspiracy, and; (3) the

failure to give CALJIC No. 6.25, a unanimity instruction. These claims are

without merit.

i. Overt act

The jury was instructed with CALJIC No. 6.10.5, which, as relevant here,

requires “proof of the commission of at least one overt act” in order to find that a

defendant is a member of a conspiracy. The instruction defines the term “overt

act” as “any step taken or act committed by one or more of the conspirators which

goes beyond mere planning or agreement to commit a public offense and which

step or act is done in furtherance of the accomplishment of the object of the

conspiracy.” Hajek contends the instruction was defective because it did not

identify a specific overt act.24 We have repeatedly rejected this claim. (E.g.,

Valdez, supra, 55 Cal.4th at p. 151; People v. Prieto (2003) 30 Cal.4th 226, 251.)

Hajek offers no persuasive reason to reconsider those decisions.

ii. Failure to properly identify the object of the conspiracy

Hajek contends the instructions may have confused the jury by failing to

properly identify the object or target crimes of the conspiracy. CALJIC No. 6.10.5

as given instructed the jury that “[a] conspiracy is an agreement between two or


The Attorney General contends that Hajek forfeited this and other claims of

instructional error regarding the conspiracy instructions by failing to object to
them or seek modification in the trial court. In a similar circumstance, we
declined to find forfeiture given the substantial rights involved. (Valdez, supra, 55
Cal.4th at p. 151.)


more persons with a specific intent to agree to commit a public offense, such as

Burglary and Murder . . . .” (Italics added.) Hajek contends the italicized phrase

suggested to the jury that burglary and murder were merely illustrative of potential

target crimes rather than identifying the actual target crimes at issue here. He also

argues that, because CALJIC No. 6.11 told the jury it must decide whether “the

crime alleged in [Count] I (murder) was a natural and probable consequence” of

the target crimes (burglary and murder), the instruction “left the jury with the

strange task of determining whether murder could be the natural and probable

consequence of an agreement to commit murder.” Finally, he claims the trial

court erred by not giving CALJIC No. 6.25, a unanimity instruction.

In reviewing a claim of instructional error, the ultimate question is whether

“there was a reasonable likelihood the jury applied the challenged instruction in an

impermissible manner.” (People v. Wilson, supra, 44 Cal.4th at p. 803.) “[T]he

correctness of jury instructions is to be determined from the entire charge of the

court, not from a consideration of parts of an instruction or from a particular

instruction.” (People v. Burgener (1986) 41 Cal.3d 505, 538.) “Moreover, any

theoretical possibility of confusion [may be] diminished by the parties’ closing

arguments . . . .” (People v. Garceau (1993) 6 Cal.4th 140, 189.) “ ‘ “Jurors are

presumed to be intelligent, capable of understanding instructions and applying

them to the facts of the case.” ’ ” (People v. Carey (2007) 41 Cal.4th 109, 130.)

Bearing these principles in mind, we reject Hajek’s claim that the trial

court’s reference to “a public offense, such as Murder or Burglary” (italics added)

may have led to jury to believe those offenses were only illustrative of possible

target crimes. The prosecutor’s closing argument focused only on these two

offenses as the target crimes, thus clarifying any potential ambiguity in the


instruction. Hajek points to nothing in the record that would indicate any

confusion by the jury on this point.

We also reject Hajek’s claim that the jury would have been incapable of

distinguishing between burglary and murder for purposes of the natural and

probable consequences rule set forth in CALJIC No. 6.11. Again, the prosecutor’s

closing argument is relevant. After identifying burglary as a target offense of the

conspiracy, the prosecutor told the jury that, pursuant to the instructions, “if a

number of persons conspired together to commit a burglary and if the life of

another is taken by one or more of them . . . [as] an ordinary and probable result of

the pursuit of that purpose, all the co-conspirators are deemed in the law to be

equally guilty of murder in the first degree.” Moreover, to assume the jurors

would not see the tautological conundrum of determining whether murder is a

probable and natural consequence of an agreement to commit murder is to

denigrate the ability of the jurors to understand and correlate the instructions.

Regarding the trial court’s failure to instruct on unanimity pursuant to

CALJIC No. 6.25, the short answer, as Hajek recognizes, is that it is appropriate

only where “it is charged that defendant conspired to commit two or more felonies

and the commission of such felonies constitute but one offense of conspiracy.”

(Use Note to CALJIC No. 6.25 (5th ed. 1988).) The substantive offense of

conspiracy was not charged here. Conspiracy was merely one theory of liability

for murder. Under such circumstances, the jury must unanimously agree that the

defendant is guilty of murder, but “it need not decide unanimously by which

theory he is guilty.” (People v. Santamaria (1994) 8 Cal.4th 903, 918.) “The key

to deciding whether to give the unanimity instruction lies in considering its

purpose. . . . [T]he unanimity instruction is appropriate ‘when conviction on a

single count could be based on two or more discrete criminal events,’ but not


‘where multiple theories or acts may form the basis of a guilty verdict on one

discrete criminal event.’ ” (People v. Russo (2001) 25 Cal.4th 1124, 1134-1135.)

Accordingly, CALJIC No. 6.25 was not required in this case.

Vo’s complaints about the conspiracy instructions reiterate his objection to

the use of uncharged conspiracy as a theory of liability. Thus, he claims error

because the jurors were not required to make explicit findings about the nature and

the scope of the conspiracy, whether those findings were unanimous, or the

quantum of proof they employed. As noted, no such findings were required in this

case because conspiracy was not charged as a substantive offense.

Vo also purports to see a conflict between certain conspiracy instructions.

CALJIC No. 6.15 as given informed the jurors: “No act or declaration of a

conspirator that is an independent product of [his] own mind and is outside the

common design and not a furtherance of that design is binding upon [his] co-

conspirators, and they are not criminally liable for any such act.” Vo contends that

this instruction is in conflict with CALJIC Nos. 6.12 and 6.24. The former

instructed the jury, in relevant part: “The formation and existence of a conspiracy

may be inferred from all circumstances tending to show the common intent . . . .”

(CALJIC No. 6.12.) The latter instructed the jury, in pertinent part: “Evidence of

a statement made by one alleged conspirator other than at this trial shall not be

considered by you as against another alleged conspirator unless you determine: . . .

[¶] 3. That such statement was made in furtherance of the objective of the

conspiracy.” (CALJIC No. 6.24.)

There is patently no conflict among these instructions. If an “act or

declaration” is the “independent product of [a conspirator’s] own mind,” and

“outside the common design,” then it is clearly not to be considered as a


“circumstance[] tending to show the common intent,” nor as a “statement . . . in

furtherance of the objective of the conspiracy” under the instructions.

In sum, we reject defendants’ challenges to the conspiracy instructions

given here.

e. Mental disease and defect instructions

Hajek’s defense was that he suffered from a mental impairment such that he

did not form the intent required for the first degree murder and attempted murder

counts and the special circumstances. The court provided two instructions

addressing Hajek’s mental impairment defense. The first, a modification of

CALJIC No. 4.21.1 addressing first degree premeditated murder, torture murder,

murder by means of lying in wait, and attempted murder, informed the jury that

“[i]f the evidence shows that a defendant was mentally ill, suffered from a mental

disease or defect at the time of the alleged crime, you should consider that fact in

determining whether or not such defendant had such mental state, in other words,

whether he did in fact premeditate and deliberate. [¶] If from all the evidence you

have a reasonable doubt whether the defendant had such mental state, you must

find that defendant did not have such mental state.” The second instruction

informed the jury: “Evidence has been received regarding a mental disease,

mental defect or mental disorder of the defendant Stephen Haje[k] at the time of

the commission of the crime charged namely, Murder and Attempted Murder in

Counts 1, 2, 3, 4 and 5. You may consider such evidence solely for the purpose of

determining whether [defendant Hajek] actually formed the mental state

premeditated, deliberated which is an element of the crime charged in Counts 1, 2,

3, 4 and 5, to wit: Murder and Attempted Murder.”

On appeal, Hajek challenges the adequacy of these instructions. First, he

argues that the trial court failed to instruct the jury that it was to apply these


instructions to the aiding and abetting instructions. Second, he contends that the

use of the permissive language “should” and “may” in the instructions improperly

allowed the jury to disregard his mental impairment evidence. The claims are

without merit.25

i. Aiding and abetting

Hajek contends that the mental disease and defect instructions given in this

case were not specifically correlated to his potential liability as an aider and

abettor and were, therefore, inadequate and misleading. For this proposition he

relies on our decision in People v. Mendoza (1998) 18 Cal.4th 1114 (Mendoza).

As we explained in Letner and Tobin, supra, 50 Cal.4th 99, Mendoza

concluded that “(1) evidence of voluntary intoxication is relevant to the extent it

establishes whether an aider and abettor knew of the direct perpetrator’s criminal

purpose and intended to facilitate achieving that goal, even in cases in which the

perpetrator intended to commit a ‘general intent’ crime [citation]; and (2) any

instructions to the jury concerning voluntary intoxication should inform the jury of

the possible effect of voluntary intoxication upon the aider and abettor’s mental

state [citation].” (Letner and Tobin, at p. 186.) In Letner and Tobin, the

defendants argued the trial court’s voluntary intoxication instructions “failed to

explain to the jury how that condition could affect the mental state of an aider and

abettor.” (Ibid.)

We concluded any error was harmless. Quoting Mendoza, we explained:

“[W]e ‘review the instructions as a whole to determine whether it is “reasonably


The Attorney General contends that Hajek has forfeited his claim because

he failed to object to the instructions at trial. We will entertain his claim pursuant
to section 1259, which states in part: “The appellate court may also review any
instruction given, refused or modified even though no objection was made thereto
in the lower court, if the substantial rights of the defendant were affected thereby.”


likely the jury misconstrued the instructions as precluding it from considering” the

intoxication evidence in deciding aiding and abetting liability. [Citation.] Any

error would have the effect of excluding defense evidence and is thus subject to

the usual standard for state law error: “the court must reverse only if it also finds a

reasonable probability the error affected the verdict adversely to defendant.”

[Citation.]’ ” (Letner and Tobin, supra, 50 Cal.4th at p. 187.) On the substantive

point, we noted: “Although the voluntary intoxication instructions did not

specifically mention aiding and abetting, they did not preclude the jury’s use of

evidence of intoxication in evaluating whether defendants aided and abetted, that

is, whether, pursuant to the trial court’s other instructions, one defendant knew of

the other defendant’s criminal purpose and intentionally aided the commission of

the crime. Nor did the prosecutor argue that the jury could not consider voluntary

intoxication in determining whether a defendant who was an aider and abettor of

the crimes formed the mental state required for aiding and abetting. There is

nothing in the record to indicate the jury would not have understood that the

mental states set forth in the voluntary intoxication instructions could apply both

to the mental states required of a direct perpetrator and to those required of an

aider and abettor. . . . For these reasons, any error in the instructions did not

preclude the jury’s consideration of defense evidence, nor is it reasonably probable

that different instructions would have resulted in a verdict more favorable to

defendants.” (Ibid.)

This analysis applies with equal force to Hajek’s claim that the trial court’s

instruction failed to correlate the mental disease and defects instructions with

those pertaining to aiding and abetting liability. Here, as in Letner and Tobin,

nothing in those instructions precluded the jury from applying them to the question

of Hajek’s potential liability as an aider and abettor, nor did the prosecutor suggest


in his argument the jury could not do so. Nor is there any indication in the record

that the jury did not understand the mental disease or defect instructions were also

applicable to the mental state required of an aider and abettor. Furthermore, as the

Attorney General points out, the jury rejected Hajek’s mental impairment defense

by properly convicting him of four counts of attempted murder with findings that

the offenses were “willful, premeditated, and deliberated.” Accordingly, as in

Letner and Tobin, any error was harmless.

ii. Permissive language

Hajek contends that the use of “should” and “may” in the mental disease or

defect instructions quoted above permitted the jury to disregard entirely his mental

impairment defense. Not so.

CALJIC No. 4.21.1, as given here, provided: “If the evidence shows that a

defendant was mentally ill, suffered from a mental disease or defect at the time of

the alleged crime, you should consider that fact in determining whether or not such

defendant had such mental state, in other words, whether he did in fact

premeditate and deliberate.” The next paragraph, however, instructed the jury that

“[i]f from all the evidence you have a reasonable doubt, you must find that

defendant did not have such mental state.” (Italics added.)

The principle that jury instructions are read as a whole and in relation to

one another (People v. Burgener, supra, 41 Cal.3d at p. 538) applies equally to the

different parts of a single instruction. When so construed, the foregoing

instruction was clear in requiring the jury to consider Hajek’s mental impairment

evidence in assessing whether he possessed the requisite mental state. This is

because the jury could obviously not reach the issue of whether such evidence

created a reasonable doubt without first considering it. We presume the jurors

were capable of reading, understanding, and applying the instruction in this


commonsense manner rather than in Hajek’s hypertechnical manner. (People v.

Carey, supra, 41 Cal.4th at p. 130.)

Hajek’s challenge to the second mental disease or defect instruction is

equally unpersuasive. That instruction was a limiting instruction that, after

referencing Hajek’s mental impairment evidence, told the jury that its use was

confined to determining whether Hajek actually formed the requisite mental state

for the charged crimes. That is the meaning of the use of the word “may” in the

instruction, as is made clear by the word “solely” that follows it: “You may

consider such evidence solely for the purpose of determining whether [defendant

Hajek] actually formed the mental state premeditated, deliberated which is an

element of the crimes charged . . . .” (Italics added.) Thus, contrary to Hajek’s

reading, the instruction did not authorize the jury to disregard his mental

impairment evidence.

f. Motive instruction

As given, CALJIC No. 2.51 instructed the jury: “Motive is not an element

of the crime charged and need not be shown. However, you may consider motive

or lack of motive as a circumstance in this case. Presence of motive may tend to

establish guilt. Absence of motive may tend to establish innocence. You will

therefore give its presence or absence, as the case may be, the weight to which you

feel it is entitled.”

Hajek contends the instruction improperly permitted the jury to convict him

based on motive alone and lessened the prosecutor’s burden of proof. The

Attorney General asserts the claim was forfeited, but we have held otherwise.

(People v. Cleveland (2004) 32 Cal.4th 704, 750.) On the merits, we have rejected

similar claims and do so again here. (People v. Watkins, supra, 55 Cal.4th at p.


1029; People v. Friend (2009) 47 Cal.4th 1, 53; People v. Riggs (2008) 44 Cal.4th

248, 314; People v. Cleveland, supra, 32 Cal.4th at p. 750.)

g. Instructing on first degree murder when the information charged

only second degree malice murder

Hajek, joined by Vo, argues the trial court erred by instructing on first

degree premeditated murder and felony-murder theories when the indictment

charged him only with murder with malice aforethought under section 187.

Defendants assert that the trial court lacked jurisdiction to try them for first degree

murder, and that by doing so the court violated their rights to due process, a jury

trial, and to a fair and reliable jury trial. As defendants acknowledge, we have

considered and rejected these contentions many times before. (People v. Brasure,

supra, 42 Cal.4th at p. 1057, and cases cited.) Defendants provide no persuasive

reason for us to reconsider those decisions.

h. Failure to instruct that jury must unanimously agree on theory of

first degree murder

Hajek, joined by Vo, contends the trial court’s failure to instruct the jury

that it must unanimously agree on a theory of first degree murder (premeditated or

felony murder) violated their due process rights, right to a unanimous verdict, and

to a fair and reliable jury trial. As defendants acknowledge, we have previously

considered and rejected this argument. (People v. Loker (2008) 44 Cal.4th 691,

707-708.) We do so again.

i. Dilution of requirement of proof beyond a reasonable doubt

Hajek contends that three instructions given on circumstantial evidence

(CALJIC Nos. 2.02, 8.83, and 8.83.1) and seven other instructions collectively

“vitiated” the reasonable doubt instruction (CALJIC No. 2.90). Those other seven

instructions are: the instruction pertaining to the respective duties of the judge and


jury (CALJIC No. 1.00); discrepancies in testimony (CALJIC No. 2.21.1);

willfully false witnesses (CALJIC No. 2.21.2); weighing conflicting testimony

(CALJIC No. 2.22); sufficiency of the evidence of a single witness (CALJIC No.

2.27); motive (CALJIC No. 2.51); and flight (CALJIC No. 2.52). Vo challenges

the reasonable doubt instruction itself as well as the circumstantial evidence

instructions. The United States Supreme Court has upheld our reasonable doubt

instruction. (Victor v. Nebraska (1994) 511 U.S. 1, 6, 10-17.) We have

previously considered and rejected similar challenges to the remaining instructions

challenged here, and we do so again. (See, e.g., People v. Carey, supra, 41

Cal.4th at pp. 129-131 [discussing and rejecting similar challenges to CALJIC

Nos. 2.02, 8.83, 8.83.1,1.00, 2.21.1, 2.21.2, 2.22, 2.27, 2.51.]; People v. Stewart

(2004) 33 Cal.4th 425, 521 [CALJIC Nos. 2.01, 2.02, 8.83.1].)

j. Aiding and abetting instructions

Vo, joined by Hajek, contends the aiding and abetting instructions given in

this case were confusing and permitted the jury to convict them without requiring

a finding that defendants “personally possess the requisite intent for the charged

offenses.” The claim is without merit.

A good deal of the argument criticizes the conspiracy instructions, not the

aiding and abetting instructions. We have already discussed and rejected

defendants’ challenges to the conspiracy instructions. (See ante, pt. II.B.4.d.)

They now contend the jury may have concluded that each defendant’s membership

in the conspiracy was sufficient to find he was an aider and abettor without finding

he had the requisite intent for aiding and abetting. This claim is untethered to

anything in the record except a question the jury asked during its deliberations

regarding the lying-in-wait special circumstance, which we discuss below.


Although our reversal of the lying-in-wait special circumstance renders

moot any discussion of instructional error with respect to it, defendants make the

broader claim that this alleged error infected the issue of intent on each offense.

Accordingly, we will discuss the substantive point.

In support of their claims, defendants cite People v. Beeman (1984) 35

Cal.3d 547. Beeman, however, is distinguishable. In Beeman, we concluded that

“the weight of authority and sound law require proof that an aider and abettor act

with knowledge of the criminal purpose of the perpetrator and with the intent or

purpose either of committing, or of encouraging or facilitating commission of, the

offense.” (Id. at p. 560.) We found further that the then-standard aiding and

abetting instruction was inadequate because it failed to require the jury to find that

intent as a condition of convicting a defendant as aider and abettor. (Ibid.)

Here, however, the jury was correctly instructed that “[a] person aids and

abets the commission or attempted commission of a crime when he or she, [¶] (1)

with knowledge of the unlawful purpose of the perpetrator and [¶] (2) with the

intent or purpose of committing, encouraging, or facilitating the commission of the

crime, by acts or advice aids, promotes, encourages or instigates the commission

of the crime.” There was no Beeman instructional error.

Nonetheless, defendants contend a question posed by the jury during

deliberations indicated it may have been confused about the intent requirement for

aiding and abetting, and the court’s actions in response were inadequate to dispel

that confusion. We are not persuaded.

On the third day of guilt phase deliberations, the jury sent a note asking

about the interplay of two instructions (instruction Nos. 57 and 59) pertaining to

the lying-in-wait special circumstance in the event the jurors were uncertain about


whether a defendant was the actual perpetrator, a conspirator, or an aider and


The jury’s note read: “(p. 57) [¶] 3 Under special circumstances: If a

‘defendant’ is determined to be an ‘aider and abettor’ or a ‘co-conspirator’ does he

then become: ‘(The)(A) defendant on page 59, item #1 which reads: [¶] #1.

(The)(A) defendant intentionally killed the victim.”

Instruction No. 57 read, in relevant part, “If you find that defendant was not

the actual killer of a human being, or if you are unable to decide whether the

defendant was the actual killer or an aider and abettor or co-conspirator, you

cannot find the special circumstance to be true as to that defendant unless you are

satisfied beyond a reasonable doubt that such defendant with the intent to kill

aided, abetted, counseled, commanded, induced, solicited, requested, or assisted

any actor in the commission of the murder in the first degree.” Instruction No. 59

stated: “To find that the special circumstance, referred to in these instructions as

murder while lying in wait, is true, each of the following facts must be proved: [¶]

1. [The] [A] defendant intentionally killed the victim, and [¶] 2. The murder was

committed while [the] [a] defendant was lying in wait.”

When the court questioned the foreperson about the note, he explained that

some jurors wanted to know whether, if a defendant “fell into any one of the three

categories” of actual perpetrator, aider and abettor, or coconspirator, that

defendant would then “automatically be considered” “under [instruction No.] 59,”

a defendant who “intentionally killed the victim.” Outside the presence of the

jury, both defense counsel argued that the jury was asking whether it was

sufficient to find a defendant was an aider or abettor or a coconspirator to find the

special circumstance true, or if the jury must also find an intent to kill. The trial

court reconvened the jury and explained three times that the jury could not find the


special circumstance true without finding the defendant harbored the requisite

intent. The court explained, “You have to go one step further . . . . And you have

to put the intent to kill . . . . I mean it goes back to the aider, abettor instruction,

you can’t be an aider, abettor unless you have the intent.” The foreperson replied,

“That answers the question.” Outside the presence of the jury, Vo’s counsel

declared himself “satisfied with the court’s explanation.” Hajek’s counsel added,

“So was I, Your Honor.”

Defendants assert on appeal that a “reasonable interpretation of the jury

note is that jurors wanted to know whether membership in the uncharged,

unproven, amorphous conspiracy supplied the ‘intentional killing’ requirement for

the [lying-in-wait] special circumstance.” Even assuming this interpretation of the

note is reasonable, the trial court’s response, emphasizing that an intent to kill

must also be found, laid the jury’s concern to rest.

As noted, based on this exchange, defendants further assert the jury’s

confusion extended to the question of intent as to each offense, and not merely the

lying-in-wait special circumstance. This claim is unsupported by anything in the

record, and we reject it.

k. Failure to limit instruction on Hajek’s conduct and mental defenses

to Hajek

Vo contends that various of his constitutional rights were violated because

instructions pertaining to Hajek’s conduct and mental state were not limited to

him. The argument is meritless.

The jury was instructed that it had to decide the guilt of each defendant

separately; that some evidence was admitted against one defendant only and could

only be considered against him; and that some evidence was admitted for a limited

purpose and could not be considered for any other purpose. Furthermore,


instructions pertaining to mental state defenses, witness intimidation, and firearm

use specifically named Hajek. The jury could only have understood the

instructions pertaining to prearrest and postarrest statements to refer to Hajek, in

light of evidence of his conversation with Moriarty, his postarrest letters, and the

absence of comparable evidence pertaining to Vo.

The jurors are presumed to understand, follow, and apply the instructions to

the facts of the case before them. (People v. Carey, supra, 41 Cal.4th at p. 130.)

Vo points to nothing in the record that supports nonapplication of this presumption

with respect to the instructions about which he complains. Moreover, he could

have sought appropriate specific limiting instructions if he felt they were

necessary, but did not do so. (Evid. Code, § 355.) Absent such request, the trial

court was under no obligation to give such limiting instructions. (People v.

Cowan (2010) 50 Cal.4th 401, 479-480.)

5. Prosecutorial Misconduct

Hajek contends the prosecutor engaged in misconduct during his closing

argument by repeatedly referring to defense counsel’s “salesmanship.” The

argument is without merit.

At several points during his closing argument, the prosecutor referred to

defense counsel’s “salesmanship,” as, for example, when he commented about

Hajek’s counsel claim that, because of his mental impairment, Hajek was guilty of

no more than second degree murder: “[I]t was particularly effective on her part, I

think, to admit to you, to tell you what she is after, which is a second degree

murder, which avoids all responsibility for any major penalty, is a garden variety,

every day average type of murder where’s there’s no plan. [¶] And she told you

actually that this was such a case. When you think about it that’s amazing. That

is really an incredible job of salesmanship, to get you to think about that even.”


Hajek’s counsel eventually objected to the prosecutor’s use of the term

“salesmanship.” The court overruled the objection. The prosecutor then

responded, “If she finds salesmanship — I will strike that word and call it

excellent lawyering.”

Hajek accuses the prosecutor of disparaging the truthfulness of his trial

counsel. We are not persuaded. “It was clear the prosecutor’s comment was

aimed solely at the persuasive force of defense counsel’s closing argument, and

not at counsel personally. We have found no impropriety in similar prosecutorial

remarks. [Citations.]” (People v. Zambrano (2007) 41 Cal.4th 1082, 1155.) Nor

do we find any impropriety here.

6. Cumulative Effect of Error

Defendants contend the cumulative effect of guilt phase errors requires

reversal of their convictions. We have found that insufficient evidence of the

lying-in-wait special circumstance requires reversal of that finding. We have also

concluded the gun use enhancements the jury found as to Hajek cannot be

sustained and must be changed to deadly weapon enhancements. None of these

errors, whether considered individually or in combination, requires reversal of the

rest of the judgment. Apart from the foregoing, defendants have “demonstrated

few errors,” and we have determined that each such error or possible error is

“ ‘harmless when considered separately. Considering them together, we likewise

conclude that their cumulative effect does not warrant reversal of the judgment[s].’

[Citation.]” (People v. Homick, supra, 55 Cal.4th at p. 884.)

C. Penalty Phase Issues

1. Decision to Charge Defendants with Capital Murder

Defendants argue that the death penalty statute is unconstitutional because

it allows prosecutors standardless discretion in seeking the death penalty. Hajek


illustrates his argument by comparing the facts of this case to seven other cases

prosecuted by the Santa Clara County District Attorney in which the death penalty

was not sought. Our prior decisions have rejected such claims. “Prosecutorial

discretion to select those death-eligible cases in which the death penalty will

actually be sought is not constitutionally impermissible. [Citations.] [¶]

Comparative intercase proportionality review by the trial or appellate courts is not

constitutionally required. [Citations.]” (People v. Snow (2003) 30 Cal.4th 43,

126-127; Crittenden, supra, 9 Cal.4th at pp. 156-157.) We adhere to those


2. Denial of Vo’s Request for a Continuance

On June 5, 1995, following Vo’s conviction, his trial counsel moved for a

continuance to prepare for the penalty phase. Counsel expressed surprise that Vo

had been convicted. He complained about his difficulties in obtaining payment

from the county for his experts, cocounsel, and for himself. He cited unspecified

“instructional issues” he and cocounsel had “not attended to,” as well as the fact

he had evidently not yet spoken to all his penalty phase witnesses. He also

referred to the “stress” of representing a capital defendant. The trial court noted

that the case was four years old and that trial counsel had represented Vo since the

preliminary hearing. The court further stated that, in its view, the facts of the case

were not complicated and that counsel had had “more than a sufficient amount of

time to become adequately prepared.” The court denied the motion.

Vo contends the trial court abused its discretion because its denial of a

continuance prevented him from fully developing mitigating evidence. He cites a

declaration submitted after the penalty phase trial by Vincent N. Schiraldi, the

executive director of the Center on Juvenile and Criminal Justice (CJCJ),


summarizing Vo’s family background as additional evidence he could have

presented had the continuance been granted. The claim is without merit.

First, counsel did not explicitly cite the need to develop evidence pertaining

to Vo’s family background as the reason for which he sought a continuance.

Second, several months earlier counsel had represented to the court that

investigation into Vo’s family background for the penalty phase trial had begun as

early as December 1994. Vo offers no explanation why this evidence was not

available in June 1995 when the penalty phase began. Finally, the family

background evidence summarized in Schiraldi’s declaration was presented at the

penalty phase on Vo’s behalf. Vo fails to demonstrate that Schiraldi’s declaration

contained anything new, much less that it could not have been presented at the

penalty phase trial in the absence of a trial continuance. In sum, Vo fails to show

the trial court abused its discretion in denying his continuance request. (People v.

Beames, supra, 40 Cal.4th at p. 920.)

3. Denial of Trial Counsel’s Request to be Relieved

Based on its finding that Vo’s trial counsel had refused to comply with

discovery requirements as to his proposed mental health expert, Dr. James Berg,

the trial court excluded Berg’s testimony. Vo’s counsel then declared a conflict of

interest and asked to withdraw from the case. The trial court rejected his request.

On appeal, Vo contends the court erred by excluding Berg’s testimony as a

discovery sanction. He also asserts the trial court erred when it denied his trial

counsel’s motion to withdraw. Both arguments are meritless.

a. Background

Vo retained Dr. James Berg, a mental health expert, in March 1994.

During Vo’s penalty phase case, both the prosecutor and Hajek’s attorney

complained that Vo’s counsel had failed to disclose his intention to call Dr. Berg.


The prosecutor asked that Berg be excluded as a sanction for the failure by Vo’s

counsel to comply with discovery rules requiring timely disclosure of expert

witnesses. The trial court declined to do so at that time, but added, “I may impose

sanctions at the end if I believe that [Vo’s counsel] has . . . sandbagged, that it was

a willful violation of the law of the state of California and not turning over reports

or not turning over the investigation to [the prosecutor].”

Somewhat later, the parties returned to the issue of Vo’s compliance with

discovery rules with respect to Dr. Berg. Hajek’s counsel said, “I want to know if

there’s a report from Dr. Berg. I would like that report given to me now and I

would also like the opportunity to speak with Dr. Berg before any of this is

presented.” Vo’s counsel represented to the trial court there were no reports from

Berg, but offered to give his phone number to Hajek’s counsel and the prosecutor.

The court noted that Hajek’s counsel had turned over the report of her mental

health expert, Dr. Minagawa, and expressed its belief that it was being

“sandbagged” by Vo’s counsel. Counsel denied the charge.

The following day, Hajek’s counsel informed the court that she had spoken

to Dr. Berg and that he had turned over to her about 20 pages of handwritten notes

indicating, among other things, that Berg had administered some psychological

tests to Vo. Hajek’s counsel argued the test results were discoverable material and

asked that they be provided. The prosecutor joined in the request. Vo’s counsel

objected to turning over the material on the ground that Berg would not be

referring to the test results in his testimony. The prosecutor argued this was “all

the more reason for us to be allowed to examine it, because if an expert is picking

and choosing what he chooses to rely on . . . that should be explained in cross-

examination.” Hajek’s counsel agreed with the prosecutor that she had a right to

discover the material for its possible impeachment value. The trial court


instructed Vo’s counsel to turn over the material, or it would preclude Berg from

testifying. Vo’s counsel refused to do so, claiming the material would be outside

the scope of the testimony he intended to elicit from Berg. The trial court

precluded Berg’s testimony. The court went on to say: “I’ll make a finding that

[Vo’s counsel] has not complied with discovery in good faith.” Vo’s counsel

responded by “declar[ing] a conflict of interest” and asking the court to appoint

new counsel for Vo, “who has some respect of the court so he is not subjected to a

disparate treatment because of what the court believes as to my handling of this

matter.” The court denied the request.

b. Exclusion of Dr. Berg’s testimony

Vo contends that the trial court’s exclusion of Dr. Berg’s testimony as a

sanction for his counsel’s violation of the court’s discovery order violated his due

process right to present a defense. He is wrong. Section 1054.3, subdivision

(a)(1), requires the defense to disclose to the prosecution, among other matters,

“[t]he names and addresses of persons, other than the defendant, he or she intends

to call as witnesses at trial, together with any relevant written or recorded

statements of those persons, including any reports or statements of experts made in

connection with the case, and including the results of physical or mental

examinations . . . which the defendant intends to offer in evidence at the trial.”

This provision includes the raw results of standardized psychological and

intelligence tests administered by a defense expert upon which the expert intends

to rely. (Woods v. Superior Court (1994) 25 Cal.App.4th 178, 184-185.)

In this case, while representing that Dr. Berg had not prepared a report,

Vo’s counsel neglected to mention that Berg had prepared 20 pages of handwritten

notes and administered psychological tests to Vo. These materials constituted a

report for purposes of the statute. (See People v. Lamb (2006) 136 Cal.App.4th


575, 580 [defense expert’s notes were discoverable, notwithstanding defense’s

claim that the expert had not prepared a written report based on those notes].) The

court found that Vo’s failure to provide these notes and test results was a willful

violation of its discovery order and justified the preclusion of Berg’s testimony as

a sanction because of its adverse effect on the ability of the prosecutor and Hajek

to cross-examine Berg. Vo does not demonstrate, nor do we find, an abuse of

discretion. (People v. Ayala (2000) 23 Cal.4th 225, 299 [trial court may, in the

exercise of its discretion, consider a broad range of sanctions for violation of a

discovery order].) Finally, Vo fails to demonstrate that the application of the

discovery statutes violated his right to present a defense. (Cf., Chambers v.

Mississippi (1973) 410 U.S. 284, 302; People v. Boyette (2002) 29 Cal.4th 381,

414 [“ ‘ “[A]s a general matter, the ordinary rules of evidence do not

impermissibly infringe on the accused’s right to present a defense.” ’ ”]

c. Denial of defense counsel’s motion to withdraw as counsel

Vo maintains that the trial court erroneously rejected his trial counsel’s

request to withdraw from the case on the ground that a conflict of interest had

emerged in the wake of the court’s preclusion of Dr. Berg’s testimony as a

discovery sanction. We are not persuaded.

“The determination whether to grant or deny a motion by an attorney to

withdraw is within the sound discretion of the trial court and will be reversed on

appeal only on a clear showing of abuse of discretion.” (People v. Sanchez (1995)

12 Cal.4th 1, 37.) “The right to effective assistance of counsel, secured by the

Sixth Amendment to the federal Constitution, and article I, section 15 of the

California Constitution, includes the right to representation that is free from

conflicts of interest.” (People v. Cox (2003) 30 Cal.4th 916, 948.) “ ‘Conflicts of

interests may arise in various factual settings. Broadly, they “embrace all


situations in which an attorney’s loyalty to, or efforts on behalf of, a client are

threatened by his responsibilities to another client or a third person or by his own

interests.” ’ ” (People v. Doolin, supra, 45 Cal.4th at p. 459, italics omitted.)

Vo asserts the trial court’s “wrath” toward his trial counsel, reflected in its

order precluding Dr. Berg’s testimony, caused Vo’s case to “suffer[]” and

therefore constituted a conflict of interest. If, by this, he is suggesting the court

precluded Berg’s testimony out of pique with Vo’s trial counsel, he is wrong. The

exclusion of Berg’s testimony was an appropriate sanction for the discovery

violation. Vo cites no authority to support the proposition that an adverse ruling,

even one accompanied by a finding of defense counsel’s bad faith, creates a

conflict of interest between counsel and his or her client. There being no

identifiable conflict of interest between Vo and his trial counsel, there was no

basis to grant counsel’s motion to withdraw from the case, and the trial court

appropriately denied it.

4. Dr. Minagawa’s Testimony Regarding Hajek’s Denial of Being the


Vo claims the trial court erred in denying his motion for a mistrial after

Dr. Minagawa (Hajek’s mental health expert) was permitted to testify at the

penalty phase that Hajek denied killing the victim. We have already discussed and

disposed of this claimed violation of the Aranda/Bruton rule in connection with

Vo’s severance argument. (See ante, pt. II.A.1.) Our stated reasons for rejecting

his severance contentions apply with equal force to this claim. The trial court did

not err in denying his mistrial motion.


5. Inadequate Notice of Factors in Aggravation

Vo, joined by Hajek, contends the prosecutor provided inadequate notice of

the evidence in aggravation, as required by section 190.3, thus violating his

statutory and due process rights. The claim is without merit.

Section 190.3 provides in part: “Except for evidence in proof of the offense

or special circumstances which subject a defendant to the death penalty, no

evidence may be presented by the prosecution in aggravation unless notice of the

evidence to be introduced has been given to the defendant within a reasonable

period of time as determined by the court, prior to trial. Evidence may be

introduced without such notice in rebuttal to evidence introduced by the defendant

in mitigation.” “The purpose of the notice requirement is to afford a capital

defendant the opportunity to prepare to meet evidence introduced in aggravation

of the offense.” (People v. Carrera (1989) 49 Cal.3d 291, 334.)

On February 6, 1995, eight days before the guilt phase trial began, the

prosecution filed its notice of penalty phase evidence. The prosecution identified

as its potential witnesses in aggravation all members of the Wang family, as well

San Jose police officers, Department of Corrections officers, the medical

examiner, and an FBI agent. Although a proof of service is not attached to the

filing, subsequent record references to the notice and its contents by both

defendants establish that they received the notice. On June 5, 1995, before the

penalty phase began, the prosecutor filed a brief in which he sought to present

additional evidence in aggravation, including evidence of Hajek’s criminal history.

Both defendants filed motions to restrict the prosecution to the evidence in

aggravation set forth in its earlier section 190.3 notice. The trial court agreed with

defendants. It limited the prosecution evidence to victim impact testimony from

Ellen, photographs of Su Hung while she was still alive, and Hajek’s conviction


for auto theft with a firearm enhancement, but not the underlying facts of that

offense. Ultimately, the only evidence the prosecution presented was victim

impact testimony from Ellen; it otherwise relied on the circumstances of the crime.

Vo contends the prosecutor’s February 1995 notice, which listed victim

impact testimony by members of the Wang family, was untimely because it was

not provided within a reasonable period of time before trial. But defendants did

not object to that notice, either in February or later in June 1995 when they sought

to restrict the evidence in aggravation to evidence contained in the February

notice. Accordingly, Vo has forfeited any claim that the timing of the February

notice left him with an insufficient opportunity to prepare for Ellen’s victim

impact testimony. (See People v. McDowell (2012) 54 Cal.4th 395, 421.) In any

event, Vo fails to demonstrate the unreasonableness of the notice’s timing, and the

record contains no indication of any adverse effect on his defense. (See People v.

Pinholster (1992) 1 Cal.4th 865, 958.) Accordingly, his claim is not only forfeited

but meritless.

6. Failure to Provide Separate Penalty Phase Juries

Vo contends the trial court erred by declining to impanel separate juries for

the guilt and penalty phases, based on the objection by Vo’s counsel to the

exclusion from the guilt phase of a prospective juror who stated he could not

sentence a person to death. We reject Vo’s assertion that his objection to the

exclusion of this juror constituted a motion to impanel separate juries and,

therefore, we find he has forfeited the claim. In any event, the claim is meritless.

“Section 190.4, subdivision (c) ‘requires that, absent good cause, the same

jury decide guilt and penalty at a capital trial.’ [Citation.] The statute expresses a

long-standing preference for a single jury to decide guilt and penalty [citation],

and we have rejected claims that this preference in itself constitutes a denial of due


process of law or violates the defendant’s right to a fair trial and reliable guilt and

penalty determination. [Citation.]” (People v. Prince (2007) 40 Cal.4th 1179,

1281.) Vo fails to demonstrate that good cause existed for a second jury and, as

Prince holds, the statutory preference for a single jury is constitutionally


7. Juror Excusal

Vo, joined by Hajek, contends the trial court abused its discretion when it

excused one juror for hardship during the guilt phase and thereafter retained a

second juror for the penalty phase despite her claim of hardship. We find no abuse

of discretion.

a. Background

During the guilt phase trial, Juror C.E. informed the court that the grocery

chain for which he worked had locked out its employees in a labor dispute, and he

would no longer be paid for jury duty. C.E. had applied for work at nonunion

companies, but none of them would hire him as long as he was serving on the jury.

C.E. said he could not afford his house payments without a job. The court

indicated it was inclined to excuse the juror. The prosecutor and Vo’s counsel

both suggested the court wait for a few days to see if the labor dispute would be

resolved. The court pointed out, however, that C.E. was probably competing for a

nonunion job with everyone else who had been locked out, and it was possible that

all the nonunion jobs would be filled. Rather than defer the decision, the court

excused the juror and seated an alternate.

The jury returned its guilty verdicts on May 22, 1995, and the penalty phase

was scheduled to begin on June 5, 1995. At a hearing to discuss scheduling, the

trial court informed counsel it had received a note from Juror K.W. indicating she

had a hardship that would affect her ability to continue serving on the jury. When


asked to explain the nature of the hardship, K.W. said she was scheduled to attend

a work-related event in Washington, D.C. that was a necessary step to promotion,

beginning on June 5. She explained further that if she did not attend the event, she

would be ineligible for promotion for another year. Initially, counsel for both

defendants objected to excusing the juror, and the court declined to do so. A week

later, however, defense counsel reversed course and asked that the juror be

excused. Hajek’s counsel explained she feared K.W. might be angry if she were

not excused and might direct that anger at the defense. The trial court declined to

excuse the juror. It also rejected a request by Vo’s attorney to question the juror

about whether its decision to retain her might affect her impartiality.

b. Discussion

“Section 1089 provides for the discharge of a juror ‘before or after the final

submission of the case to the jury’ for ‘good cause’ shown. In reviewing a trial

court’s decision either to retain or discharge a juror, we use the deferential ‘abuse

of discretion’ standard. [Citations.] And we will uphold the decision unless it

‘ “falls outside the bounds of reason.” ’ ” (People v. Earp (1999) 20 Cal.4th 826,

892; see People v. Hart (1999) 20 Cal.4th 546, 596-597 [finding no abuse of

discretion where court declined to excuse a juror for financial hardship].)

Applying this standard, we find no abuse of discretion in the trial court’s

decision to discharge Juror C.E. The juror’s uncontradicted representations

established that a labor dispute had resulted in a job lockout and his loss of income

from his employer. C.E. tried but was unable to obtain employment elsewhere,

and was told he would not be hired so long as he was on jury duty. Moreover, it

was reasonable for the court to infer that retention of the juror might cause him to

lose out on any chance of securing other employment because of the competition


from his coworkers. Faced with these circumstances, the trial court’s decision to

excuse C.E. for financial hardship was an appropriate exercise of its discretion.

By contrast, Juror K.W.’s hardship did not concern a job or income loss.

Instead, continued jury service meant she would not be eligible for a possible

promotion for another year. Balanced against this hardship to K.W. would have

been the loss of a juror who had already deliberated in the guilt phase. Under

these circumstances, the trial court’s decision to retain K.W. was not an abuse of

its discretion. (See Thiel v. Southern Pacific Co. (1946) 328 U.S. 217, 224 [“Jury

service is a duty as well as a privilege of citizenship; it is a duty that cannot be

shirked on a plea of inconvenience or decreased earning power. Only when the

financial embarrassment is such as to impose a real burden and hardship does a

valid excuse of this nature appear.”].) Nor is there any support in the record for

Vo’s assertion that K.W.’s anger or disappointment at being retained on the jury

— if, indeed, she was angry or disappointed — impaired her ability to be an

impartial juror.

8. Prosecutorial Misconduct

Both defendants contend the prosecutor engaged in misconduct during the

penalty phase. Vo focuses on the prosecutor’s closing argument. Hajek, while

also asserting impropriety in the prosecutor’s argument, primarily addresses the

prosecutor’s cross-examination of his expert witness, Dr. Minagawa, on the

subject of sadism. We find no misconduct.

“The standards governing review of [prosecutorial] misconduct claims are

settled. ‘A prosecutor who uses deceptive or reprehensible methods to persuade

the jury commits misconduct, and such actions require reversal under the federal

Constitution when they infect the trial with such “ ‘unfairness as to make the

resulting conviction a denial of due process.’ ” [Citations.] Under state law, a


prosecutor who uses such methods commits misconduct even when those actions

do not result in a fundamentally unfair trial.’ ” (People v. Friend, supra, 47

Cal.4th at p. 29.)

“ ‘As a general rule a defendant may not complain on appeal of

prosecutorial misconduct unless in a timely fashion — and on the same ground —

the defendant made an assignment of misconduct and requested that the jury be

admonished to disregard the impropriety.’ ” (People v. Valencia (2008) 43

Cal.4th 268, 281.)

We turn first to Vo’s claims of improper prosecutorial argument. “ ‘[T]he

prosecutor has a wide-ranging right to discuss the case in closing argument. He

has the right to fully state his views as to what the evidence shows and to urge

whatever conclusions he deems proper. Opposing counsel may not complain on

appeal if the reasoning is faulty or the deductions are illogical because these are

matters for the jury to determine.’ ” (People v. Valencia, supra, 43 Cal.4th at

p. 284.) “When a claim of misconduct is based on the prosecutor’s comments

before the jury, ‘ “the question is whether there is a reasonable likelihood that the

jury construed or applied any of the complained-of remarks in an objectionable

fashion.” ’ ” (People v. Friend, supra, 47 Cal.4th at p. 29.)

Vo contends the prosecutor committed misconduct in closing argument by:

(1) improperly arguing nonstatutory factors in aggravation; (2) arguing that

defendants were not entitled to mercy because they had shown none to the victim;

(3) arguing that lack of remorse was a factor in aggravation; (4) arguing that Vo’s

youth was a factor in aggravation because his youth would make him dangerous in

prison; and (5) urging the jury to consider defendants jointly rather than giving

them individualized consideration.


Vo’s trial counsel failed to object to a single remark he now assigns as

misconduct by the prosecutor, thus forfeiting his claims of misconduct. Vo

responds to the forfeiture argument with a pro forma assertion that any objection

would have been futile and any request for admonition would have been

inadequate to cure the harm. “A defendant claiming that one of these exceptions

[to the forfeiture rule] applies must find support for his or her claim in the record.

[Citation.] The ritual incantation that an exception applies is not enough.”

(People v. Panah (2005) 35 Cal.4th 395, 462.) We find the claims forfeited.

(People v. Valencia, supra, 43 Cal.4th at p. 281.) In any event, Vo’s claims are


Vo aggregates several of the challenged remarks in arguing the prosecutor

inappropriately urged the jury to consider nonstatutory factors in aggravation. Vo

then singles out these same remarks for stand-alone claims of prosecutorial

misconduct. For the reasons below, whether considered singly or in the aggregate,

the remarks were not improper.

Vo first contends the prosecutor impermissibly argued that lack of remorse

was a factor in aggravation. (People v. Jurado (2006) 38 Cal.4th 72, 141.) But

the prosecutor did not make this argument. Although he made the observation that

Vo expressed no remorse on the audiotape of his jailhouse conversation with

Hajek, he did so in order to impeach Vo’s testimony that he was sorry about the

crime and had been shocked when he learned Su Hung had been killed. It is not

misconduct to argue that “the evidence lacked the mitigating force the defendant

claimed for it.” (People v. Raley (1992) 2 Cal.4th 870, 917 [where defendant

claimed his confession showed remorse, “the prosecutor was entitled to point out

that he had denied culpability until he found out that one of his victims had

survived and ‘he’s not going anywhere’ ”].)


Vo next claims the prosecutor impermissibly argued that Vo’s failure to

show mercy to the victim should be considered as a factor in aggravation. Not so.

Pursuant to section 190.3, factor (k), the jury may consider as a mitigating factor

“[a]ny other circumstance which extenuates the gravity of the crime even though it

is not a legal excuse for the crime.” It was in the context of discussing the

applicability of this factor to defendants that the prosecutor argued that mercy

should not be shown to them in any greater measure than they showed mercy to

the victim. The argument was permissible. (See People v. Collins, supra, 49

Cal.4th at p. 230 [“It is not improper to urge the jury to show the defendant the

same level of mercy he showed the victim.”].)

Vo also contends the prosecutor improperly argued that Vo’s age was a

factor in aggravation because his youth made him potentially more dangerous in

prison. The prosecutor did no such thing. Rather, he argued that both defendants’

ages should not weigh in their favor, because they were both adults, because the

crime was “monstrous,” and because, as Vo’s expert told the jury, “age makes

them worse prisoners, more dangerous, less controllable in the prison situation.”

In this regard, it is settled that “ ‘age’ as statutory sentencing factor includes ‘any

age-related matter suggested by the evidence or by common experience or

morality that might reasonably inform the choice of penalty. Accordingly, either

counsel may argue any such age-related inference in every case.’ ” (People v.

Williams (2013) 56 Cal.4th 165, 200.) Measured by this standard, the prosecutor’s

argument in this case was permissible.

Vo further contends the prosecutor suggested that the jury should consider

as factors in aggravation the evidence that his family “car[ed] for him” and that he

led an “alleged ‘secret life.’ ” But the remarks to which Vo directs us were part of

the prosecutor’s argument that Vo’s numerous character witnesses were ill-


informed as to Vo’s true character and that his witnesses had exaggerated any

familial abuse in his upbringing. Such comments by the prosecutor on his view of

the evidence were entirely permissible. (People v. Valencia, supra, 43 Cal.4th at

p. 284.)

Vo also contends the prosecutor, while paying “lip service” to the principle

of individual consideration of each defendant, “in actuality” urged the jury to

consider them jointly. We disagree. The record reflects that Vo’s counsel

objected when the prosecutor asked the jury rhetorically whether Hajek or Vo was

worse. Agreeing such a comparison was improper, the prosecutor told the jury, “it

is a mistake to ask you to compare defendants. That should not be done. Each

defendant should be evaluated separately and individually.” Before going over the

section 190.3 factors, he again reminded the jury that “each defendant should be

looked at separately and evaluated individually.” The prosecutor then discussed

the factors first as they applied to Vo, and then as they applied to Hajek. There

was no misconduct on this ground.

Finally, Vo claims certain of the prosecutor’s remarks about Hajek were

misconduct. We discuss them below in connection with Hajek’s claims of

prosecutorial misconduct. As to Vo, suffice it to say there is no possibility that

any perceived impropriety prejudiced him.

Hajek’s prosecutorial misconduct claim focuses on the prosecutor’s cross-

examination of Hajek’s mental health expert, Dr. Minagawa, about whether Hajek

was a sadist. Hajek complains that most of the prosecutor’s questions concerned

his alleged sadistic tendencies, even though Minagawa “explained that ‘sadism’ is

not recognized as a diagnosis in the DSM-IV.” (Hajek explains that the DSM-IV,

the Diagnostic and Statistical Manual of Mental Disorders, fourth edition, “is a


manual published by the American Psychiatric Association that includes all

currently recognized mental health disorders.”)

The misconduct claim is forfeited. Although several objections were made

to this line of questioning, Hajek’s counsel lodged only three objections, all of

which came very late in the prosecutor’s examination of Dr. Minagawa on this

subject. Two of those objections were on relevance grounds. Only the third

objection — “I object. There is no diagnosis for sadism in the DSM-IV, which the

district attorney knows well” — could conceivably be characterized as an

objection on grounds of prosecutorial misconduct. The trial court overruled the

objection. Later, when Hajek specifically objected to questions about whether

Hajek suffered from sexual sadism, the trial court sustained the objections.

Hajek’s counsel, however, failed to request an admonition.

A claim of prosecutorial misconduct is not preserved unless the defendant

makes a timely objection and requests an admonition, and even then the issue is

preserved only if the admonition was insufficient to cure any harm. (People v.

Gonzales (2012) 54 Cal.4th 1234, 1275.) Because Hajek failed to lodge a timely

objection to most of the questions he now asserts were misconduct, and did not

request admonitions when objections were sustained, we conclude his claim is


The claim also fails on its merits. The underlying premise of Hajek’s

argument is that the only legitimate definition of sadism is the one that appears in

the DSM-IV pertaining to sexual sadism, and therefore any other invocation of the

concept of sadism is improper. We are not persuaded. While “sadism” may be

narrowly defined for diagnostic purposes as a sexual aberration, it has a wider and

more commonly understood meaning that includes a “delight in cruelty” and

“excessive cruelty.” (Merriam-Webster’s Collegiate Dict. (10th ed. 2001),


p. 1027.) It is in this sense that the word appears in the instruction defining the

torture-murder special circumstance that the jury found true as to Hajek. (CALJIC

No. 8.24 (5th ed. 1988, 1992 rev.) [“The perpetrator committed the murder with

[an] . . . intent to inflict extreme and prolonged pain upon a living human being for

the purpose of revenge, extortion, persuasion or for any sadistic purpose.”].)

An inclination toward excessive cruelty or taking delight in the infliction of

pain is undoubtedly a mental abnormality. The prosecutor, therefore, was justified

in asking Hajek’s mental health expert whether Hajek’s conduct demonstrated this

kind of sadism. Moreover, Dr. Minagawa understood this was the sense in which

he was being questioned about sadism; he repeatedly engaged with the prosecutor

on this issue, even at one point agreeing, “I think there are sadistic parts of what he

did, yes.” When the prosecutor suggested that Hajek’s stated desire to mutilate a

family pet was a “sign[] of sadism,” Minagawa agreed it was a sign of “a sadistic


We need not belabor the point. Even had Hajek preserved this claim of

prosecutorial misconduct — which he did not — the prosecutor’s examination of

Dr. Minagawa regarding Hajek’s sadistic traits was not misconduct.

To the extent Hajek complains of the prosecutor’s questions to Dr.

Minagawa about whether Hajek suffered from sexual sadism, those objections

were sustained. By failing to request an admonition, however, Hajek’s counsel

failed to preserve this issue for appellate review. In any event, these fleeting

questions do not rise to prosecutorial misconduct.

Hajek contends the prosecutor’s closing argument references to sadism and

Hajek’s interest in Satanism were misconduct. We cannot agree. In Hajek’s

penalty phase case, his counsel argued the death penalty was not warranted

because, due to his untreated mental disease, he did not form the requisite mental


state for murder and attempted murder, and that medication could have controlled

his illness. The prosecutor responded that Hajek committed the crime not because

he was mentally ill but because he enjoyed inflicting pain. To make his point, the

prosecutor referenced Hajek’s sadistic characteristics and his interest in Satanism,

both of which were matters in evidence. Moreover, “ ‘[u]nlike the guilt

determination, where appeals to the jury’s passions are inappropriate, in making

the penalty decision, the jury must make a moral assessment of all the relevant

facts as they reflect on its decision.’ [Citations.]” (People v. Leonard (2007) 40

Cal.4th 1370, 1418.) Here, as in Leonard, “the prosecutor’s comments were

emotional, but not excessively so. They were based on the evidence and fell

within the permissible bounds of argument.” (Ibid.)

Like Vo, Hajek also contends the prosecutor impermissibly argued

postcrime lack of remorse as a factor in aggravation. The prosecutor, however,

did not make that argument. Rather, he contended the jury should consider

defendants’ lack of remorse in deciding whether they were entitled to sympathy or

mercy as a mitigating factor, e.g. “[Hajek] is a person who shows absolutely no

remorse. Deserves no mercy, no mitigation.” As such, the argument was proper.

(People v. Jurado, supra, 38 Cal.4th at p. 141.)

Finally, Hajek joins in Vo’s argument that the prosecutor committed

misconduct by arguing Hajek had fabricated his mental illness and by referring to

a letter Hajek wrote to Vo in which he described violent sexual fantasies involving

Ellen. Vo, however, does little more than assert these grounds of misconduct

without developing an argument. In any event, no misconduct appears. The

prosecutor did not make the stated argument. Rather, he engaged in a long and

detailed review of Hajek’s mitigation evidence in an attempt to show it

misrepresented Hajek’s true nature and the extent of his culpability. It was in the


context of challenging Hajek’s portrayal of himself as a victim of mental illness

that the prosecutor referred briefly to letters by Hajek to Vo in which Hajek

described wanting to rape and sodomize Ellen. The argument was not improper.

(People v. Crew, supra, 31 Cal.4th at pp. 857-858 [prosecutor may argue “that the

mitigating evidence presented by the defendant was not in fact mitigating, and . . .

place[] such evidence in the broader factual context of the case”].)

In sum, we reject defendants’ claims of prosecutorial misconduct.

9. Instructional Error

a. Refusal to give pinpoint instructions

Defendants contend the trial court erroneously refused to give their

requested pinpoint instructions directing the jury to consider specific pieces of

evidence in mitigation. Vo also claims additional instructional errors.

Vo submitted a lengthy pinpoint instruction directing the jury to consider as

mitigating factors six circumstances assertedly relevant to section 190.3, factor

(k), which permits consideration of “[a]ny other circumstance which extenuates

the gravity of the crime even though it is not a legal excuse for the crime.”

(§ 190.3, factor (k).) Among those six named circumstances were “whether

another defendant, or defendants, equally culpable, will not be punished by

death”26 and “whether the defendant did not use force or violence in an effort to

avoid arrest.” Additionally, Vo’s proposed instruction listed 24 “aspects of the

defendant” for the jury to consider in mitigation, including “whether the defendant


Directing the jury to another defendant’s non-death sentence as a factor in

mitigation is incorrect as a matter of law. (People v. Moore (2011) 51 Cal.4th
1104, 1141-1142 [trial court properly excluded evidence that another defendant
had received life without the possibility of parole and an instruction that the
defendant’s accomplice had received a more lenient sentence as mitigating


has a low sense of self-esteem and self-worth,” “the defendant’s ability to

engender feelings of love and respect for him by his family, friends, teachers, and

correctional officers,” and “whether the defendant has a calming and guiding

effect upon younger inmates.” The trial court declined to give the instruction.

Hajek’s pinpoint instruction similarly would have directed to jury to

consider as factors in mitigation Hajek’s “history of disrupted foster and adoptive

placements; the damage caused to him by numerous moves in foster and adoptive

placements; emotional abuse inflicted upon him in foster and adoptive placements;

his history and treatment of his mental illness with medication; his work history;

his remorse for the effects of this crime on the victims; his stabilization,

maturation and change since he has been incarcerated for this offense; his parents’

love for him.” The trial court declined to give this part of the proposed


The court, however, did agree to append to CALJIC No. 8.84, the

introductory penalty phase instruction, the last paragraph of Hajek’s proposed

instruction stating: “In this phase of the case, you may consider sympathy, pity,

mercy or compassion in determining the appropriate penalty. These may be

considered by you as factors in mitigation.” Although the court read this

paragraph when it verbally instructed the jury, it neglected to append it to the

written instruction.

Both defendants contend the court erred in refusing their instructions

directing the jury to particular matters in mitigation. We disagree. “A trial court

must instruct on the law applicable to the facts of the case. [Citations.] In

addition, a defendant has a right to an instruction that pinpoints the theory of the

defense. [Citation.] The court must, however, refuse an argumentative

instruction, that is, an instruction ‘of such a character as to invite the jury to draw


inferences favorable to one of the parties from specified items of evidence.’ ”

(Mincey, supra, 2 Cal.4th at p. 437.) In People v. Catlin (2001) 26 Cal.4th 81, we

rejected the defendant’s claim that the court had erroneously refused to give a

similar instruction that sought to direct the jury’s attention to 13 specific factors in

mitigation. We observed that the standard instruction “directing the jury that it

may consider in mitigation ‘any other circumstance which extenuates the gravity

of the crime even though it is not a legal excuse for the crime and any sympathetic

or other aspect of the defendant’s character or record that the defendant offers as a

basis for a sentence less than death, whether or not related to the offense for which

he is on trial,’ adequately conveys the full range of mitigating evidence that may

be considered by the jury.” (Id. at pp. 173-174.) We also found that special

instructions that seek to direct the jury’s attention to specific factors in mitigation

are properly “refused as argumentative and duplicative of standard instructions.”

(Id. at p. 174.) The standard instruction that we found sufficient in Catlin was also

given here. For the same reasons set forth in Catlin, we reject defendants’ claim

of error.

As noted, the trial court agreed to append to CALJIC No. 8.84 the last

paragraph of Hajek’s proposed instruction but, while it read the paragraph in its

verbal charge, it neglected to add it to the written instructions. Hajek contends he

was thereby prejudiced because, where verbal and written instructions differ, the

written instructions prevail over verbal ones. (People v. Osband (1996) 13 Cal.4th

622, 717.) He reasons that without the written directive to the jury stating it could

consider sympathy pity, mercy, or compassion as factors in mitigation, the jury

would not have known it could do so. The argument fails, because the missing

paragraph need not have been given at all. (See People v. Ledesma, supra, 39

Cal.4th at p. 739.) Under CALJIC No. 8.84 as given, defendants were free to


argue that the jury should exercise mercy and, indeed, Hajek’s counsel told the

jury they were allowed “to consider sympathy, pity, mercy and compassion, if you

feel they are appropriate.” There was no error, harmless or otherwise.

Vo raises other claims of instructional error, none of which has merit. He

asserts the sympathy instruction that Hajek submitted and the court read failed to

limit the jury’s consideration of sympathy to defendants as a factor in mitigation.

But a penalty phase jury may, within the ambit of the circumstances of the crime

factor in aggravation, “exercise sympathy for the defendant’s murder victims and

for their bereaved family members.” (People v. Pollock (2004) 32 Cal.4th 1153,

1195; accord, People v. Zamudio (2008) 43 Cal.4th 327, 368.) Thus, it would

have been error for the court to have limited the jury’s consideration of sympathy

to the defendants alone.

Vo next contends the instructions were inadequate to impress upon the jury

the requirement of an individualized penalty determination as to each defendant.

Specifically, he asserts the first sentence of CALJIC No. 8.85, which directs the

jury to “consider all of the evidence which has been received during any part of

this trial,” allowed the jury to improperly consider evidence admitted against only

one defendant against both of them. Along these same lines, he complains the

other crimes evidence instruction, while referring to Hajek alone, did not explicitly

limit the jury’s consideration of that evidence to Hajek.

The trial court was under no sua sponte duty to give an instruction as to the

limited purpose for which evidence was received. (People v. Cowan, supra, 50

Cal.4th at p. 479.) Vo’s failure to request such an instruction forfeits the claim of

error on appeal.

In any event, there was no error. In assessing a claim of instructional error,

we examine the instructions as a whole. The test we apply is whether there is a


reasonable likelihood the jurors would have understood the instructions in a

manner that violated a defendant’s rights. (People v. Pearson, supra, 56 Cal.4th at

p. 476.) In this regard, we presume that jurors are intelligent individuals who are

capable of understanding instructions and applying them to the facts of the case

before them. (People v. Carey, supra, 41 Cal.4th at p. 130.) Here, the jury was

explicitly instructed to separately decide the appropriate penalty for each of the

defendants and, in doing so, to “consider each defendant separately and the factors

in aggravation and mitigation as to each defendant separately.” Both defense

counsel impressed upon the jury its responsibility to make individualized penalty

determinations and to look at the evidence relevant to each defendant individually.

The prosecutor also reminded the jury to decide each defendant’s fate separately

and structured his argument accordingly. Given these circumstances, we reject

Vo’s assertion that the instructions as given were inadequate.

b. Burden of proof instructions

Defendants contend the absence of certain instructions regarding the burden

of proof and jury unanimity violated various constitutional guarantees. More

broadly, defendants contend that the death penalty statute is unconstitutional

because it fails to assign a burden of proof to the prosecution to prove beyond a

reasonable doubt that aggravating factors outweigh mitigating factors before the

death penalty may be imposed or that death is the appropriate penalty. Defendants

also contend the statute and the instructions are unconstitutional because they fail

to require the jury to agree unanimously on the factors in aggravation, because the

instructions fail to assign a burden of persuasion to the prosecution, and because

the jury is not required to return written findings regarding the aggravating factors.

We have in the past rejected all of these claims. (E.g., People v. Gonzales, supra,

54 Cal.4th at p. 1298; Houston, supra, 54 Cal.4th at pp. 1231-1232; see People v.


Lenart (2004) 32 Cal.4th 1107, 1135-1136 [court need not assign a burden of

persuasion].) We do so again.

c. CALJIC Nos. 8.85 and 8.88

Defendants raise certain challenges to CALJIC No. 8.85, which sets forth

the statutory factors (§ 190.3) to be considered in determining the penalty, and to

CALJIC No. 8.88, which guides the jury in how to determine the appropriate


Pursuant to CALJIC No. 8.85, the jury was instructed to consider “[t]he

circumstances of the crime of which the defendant was convicted in the present

proceeding and the existence of any special circumstances found to be true . . . .”

(§ 190.3, factor (a).) Contrary to defendants’ contentions, this factor is not so

overly broad as to allow for the arbitrary and capricious imposition of the death

penalty. (Mungia, supra, 44 Cal.4th at p. 1141; People v. Parson (2008) 44

Cal.4th 332, 369, and cases cited.) The instruction is not defective because it fails

to omit inapplicable sentencing factors. (Parson, at p. 369, and cases cited.) Nor

does the instruction’s use of such adjectives as “extreme” and “substantial”

impermissibly impede the jurors’ consideration of mitigation. (People v. Pearson,

supra, 56 Cal.4th at p. 478; Parson, at pp. 369-370, and cases cited.)

CALJIC No. 8.88, as given to the jury, provided: “To return a judgment of

death, each of you must be persuaded that the aggravating circumstances are so

substantial in comparison with the mitigating circumstances that it [sic] warrants

death instead of life without parole.” Both defendants contend the instruction was

defective because it failed to tell jurors that mitigating factors could only be

considered for that purpose. Hajek also argues the phrase “so substantial” in

describing the jury’s weighing of the aggravating and mitigating factors was too

vague and ambiguous to guide the jury in carrying out its task. Hajek additionally


complains that CALJIC No. 8.88 failed to inform jurors that they were to

determine that death was the appropriate, and not simply the authorized,

punishment, and that they were required to return a sentence of life without

possibility of parole if the factors in mitigation outweighed those in aggravation.

Finally, Hajek argues the instruction should have informed the jurors that Hajek

did not have to persuade them the death penalty was inappropriate. Our prior

decisions have considered and rejected all of these challenges to the instruction

(e.g., People v. McKinzie (2012) 54 Cal.4th 1302, 1361-1362, and cases cited),

and we do so again here.

10. Denial of New Trial Motion

“Because a ruling on a motion for a new trial rests so completely within the

trial court’s discretion, we will not disturb it on appeal absent ‘ “ ‘a manifest and

unmistakable abuse of discretion.’ ” ’ ” (People v. Earp, supra, 20 Cal.4th at

p. 890.) We now address the trial court’s denial of defendants’ motion for a new


In the proceedings below, Vo advanced nine grounds for a new trial, the

denial of which he now assigns as error on appeal. We have already considered

and rejected his claims of error on seven of these grounds, including:

(1) insufficiency of the evidence to support the torture-murder special

circumstance (ante, pt. II.B.1.b.); (2) admission of letters written by Hajek (ante,

pts. II.B.3.c., II.B.3.g.iv.); (3) denial of severance motions (ante, pt. II.A.1.); (4)

admission of Moriarty’s conversation with Hajek against Vo (ante, pt. II.B.3.a.);

(5) admission of the audiotaped jailhouse conversation between Hajek and Vo

(ante, pt. II.B.3.b.); (6) the trial court’s excusal of Juror C.E. and its refusal to

excuse Juror K.W. (ante, pt. II.C.7.); and (7) denial of Vo’s continuance requests

(ante, pt. II.C.2.). For the same reasons we rejected his claims of error, we


conclude the trial court did not abuse its discretion in denying his new trial motion

on those grounds. (People v. Panah, supra, 35 Cal.4th at p. 490.)

Vo also argued a new trial was required because insufficient evidence

supported the lying-in-wait special circumstance, a claim he also raises in these

proceedings. While we agree the evidence does not support this special

circumstance, we conclude a new trial is not necessary on this ground for the same

reason that reversal of the judgment is not required. (See ante, pt. II.B.1.a.)

Finally, Vo argued a new trial was required because of issues related to

funding. He separately raises this claim on appeal as grounds for reversal, and we

will address it below. Our conclusion that the funding issues Vo cites do not

require reversal of the judgment (see post, pt. II.D.1.) also leads us to conclude the

trial court did not abuse its discretion in denying Vo’s new trial motion on this


The one remaining ground upon which both defendants moved for a new

trial involves the admission of the audiotape of their jailhouse conversation. In

support of this particular claim, Vo’s trial counsel submitted a declaration stating

Juror R.E. had informed him some jurors claimed to have heard Vo admit on the

audiotape that he and Hajek had killed the victim. Vo’s Keenan counsel also filed

a declaration stating that a number of jurors had told her that in listening to the

audiotape during their penalty phase deliberations, they heard Vo say, “[W]e

killed her.” Based on these reported juror statements, Hajek also moved for a new

trial, arguing the jury had considered improperly admitted evidence. Attached to

Hajek’s motion was a declaration from a defense paralegal who interviewed three

of the jurors. The jurors told the paralegal they heard each defendant admit

several times, “We killed her.”


At the hearing on the new trial motions, counsel for both defendants argued

the admissions the jurors said they had heard on the tape were not actually on the

tape. Vo complained the jurors placed substantial weight on the nonexistent

admissions, and Hajek argued this underscored the unreliability of the tape and

why it should have been excluded in the first place. Hajek made it clear, however,

that he was not asserting juror misconduct.

Two jurors, Juror K.M. and Juror L.F., testified at the new trial hearing.

Both agreed the jurors had not heard Vo say “we killed her” when they listened to

the tape during guilt phase deliberations on a tape player that provided poor audio

quality. It was only when they listened to the tape on a different tape player

during the penalty phase that they heard the admission. Juror K.M. testified she

and her fellow jurors listened to the section of the tape where they heard the

admission “numerous times,” sometimes using earphones. Juror L.F. testified,

“[w]e did not accept anything [on the tape] we could not all hear and were

comfortable with saying.” Following their testimony, Vo again argued — based

on counsel’s having listened to the tape — that the words attributed to Vo were

not on the tape. Hajek reiterated that the tape recording overall was unreliable.

Counsel then asked the court to listen to the tape itself before ruling on the new

trial motion. Ultimately, the court denied the motion, apparently without listening

to the tape.

Vo, joined by Hajek, contends on appeal that the trial court abused its

discretion by not granting a new trial based on the jury’s inappropriate

consideration of Vo’s admissions, which Vo continues to insist are not on the tape.

Vo likens the jury’s consideration of this evidence to juror misconduct in the form

of receipt of extraneous information. As Hajek did below, Vo contends the jurors’

statements about what they heard underscores the unreliability of the tape and


shows why it should not have been admitted in the first instance. Finally, he

contends the trial court erred in failing to review the tape so it could make its own

finding as to whether admissions were contained on the tape.

“We first determine whether there was any juror misconduct. Only if we

answer that question affirmatively do we consider whether the conduct was

prejudicial. [Citation.] In determining misconduct, ‘[w]e accept the trial court’s

credibility determinations and findings on questions of historical fact if supported

by substantial evidence.’ ” (People v. Collins, supra, 49 Cal.4th at p. 242.)

We reject Vo’s attempted analogy to cases in which the jury based its

verdict on out-of-court information. (See, e.g., People v. Nesler (1997) 16 Cal.4th

561, 582-588 [juror’s receipt of out-of-court information biased the juror and

required reversal of sanity phase verdict].) Significantly, the tape in this case had

been admitted into evidence, and the jury was entitled to consider it during its

penalty phase deliberations. In listening to the tape, the jury did not create

evidence that was not already before it; it simply took evidence that was before it

and, as the testifying jurors described, carefully and repeatedly examined it. Vo’s

insistence that the jurors heard words he did not speak would require us to

disregard the trial court’s findings, which were supported by substantial evidence.

No evidence contradicted the account the testifying jurors gave regarding the

process by which they examined the tape, and their testimony was essentially

consistent. Thus, Vo offers no basis for rejecting the trial court’s implied findings

that the jurors heard the statements they attributed to Vo on the tape. On this

record, no juror misconduct appears.27


Moreover, a court may not consider evidence of a juror’s subjective process

in deciding whether to grant a new trial based on purported juror misconduct.
(Evid. Code, § 1150; People v. Allen and Johnson (2011) 53 Cal.4th 60, 75.)
Thus, to the extent Vo raises questions about the impact of the audiotaped


Given that the trial court heard and credited the two jurors’ testimony on

this point, it was unnecessary for the court to undertake its own examination of the

audiotape by listening to it.

On a related point, Vo contends he was denied notice of this evidence and

was therefore deprived of an opportunity to defend against it. Because the tape

was in evidence and Vo had a copy of it, his notice argument fails.

In sum, defendants have not demonstrated a manifest and unmistakable

abuse of discretion in the denial of their new trial motions. (People v. Earp,

supra, 20 Cal.4th at p. 890.) Their claims are rejected.

11. Eligibility for the Death Penalty

As discussed, Hajek introduced expert testimony that he suffered from

mental illness (cyclothymic disorder, bipolar disorder) before and during

commission of his crimes, as well as a borderline personality disorder with

antisocial traits, which together impaired his judgment and prevented him from

forming the mental state required for the charged crimes. Citing Atkins v. Virginia

(2002) 536 U.S. 304 (Atkins), Hajek contends severely mentally ill offenders such

as himself are ineligible for the death penalty. We are not persuaded.

In Atkins, supra, 536 U.S. 304, the United States Supreme Court held the

execution of the mentally retarded violates the Eighth Amendment’s proscription

against cruel and unusual punishment. (Atkins, at p. 321.) While acknowledging

that mentally retarded individuals “frequently know the difference between right

and wrong and are competent to stand trial,” the high court concluded their

personal culpability is diminished because, by definition, they have “diminished

capacities to understand and process information, to communicate, to abstract

statements on the jury’s verdict, he violates the proscription against invading the
mental processes by which the jurors reached their verdict.


from mistakes and learn from experience, to engage in logical reasoning, to

control impulses, and to understand the reactions of others.” (Id. at p. 318, fn.

omitted.) In light of such impairments and reduced culpability, the Supreme Court

found it appropriate to categorically exempt mentally retarded offenders from the

death penalty because the social justifications for the punishment — retribution

and deterrence — would not be served. (Id. at pp. 319-321.) The court

additionally observed that mentally retarded defendants in the aggregate face an

enhanced risk of execution in spite of factors which may call for a less severe

penalty, not only due to the possibility of false confessions but also because of

their lesser ability to make a persuasive showing of mitigation, to meaningfully

assist counsel, to be effective witnesses on their own behalf, and to convey their

remorseful demeanor. (Id. at pp. 320-321.)

Because Hajek never claimed to be mentally retarded and offered no

evidence of mental retardation at trial, he has not demonstrated ineligibility for the

death penalty under Atkins. Hajek, however, asserts that executing severely

mentally ill offenders violates the federal and state prohibitions against cruel and

unusual punishment because some of the underlying rationales of Atkins also

apply to such offenders.

Hajek identifies no controlling federal authority barring imposition of the

death penalty on mentally ill offenders. As for California law, we have held the

analysis in Atkins inapplicable in a similar situation. In People v. Castaneda,

supra, 51 Cal.4th 1292, we found the defendant failed to establish that his

condition, “an antisocial personality disorder,” “is analogous to mental retardation

for purposes of imposition of the death penalty.” (Id. at p. 1345.) First, in contrast

to the circumstance that numerous states have acted to prohibit execution of

mentally retarded offenders, “there is no objective evidence that society views as


inappropriate the execution of death-eligible individuals who have an antisocial

personality disorder.” (Ibid.) Second, unlike the mentally retarded, offenders with

such a disorder “are aware of what they are doing” and “have the ability to choose

not to commit crimes,” so “their disorder does not diminish their personality

culpability.” (Ibid.) Third, “the justifications for the death penalty — retribution

and deterrence — may be served by application of the law to such individuals.”

(Ibid.) Finally, the ability of offenders with an antisocial personality disorder “to

charm and manipulate others, to deny responsibility, and to provide excuses for

their conduct, enhances rather than diminishes their capacity to avoid wrongful

conviction and execution.” (Ibid.)

Our analysis rejecting the defendant’s claim in Castaneda applies with

similar force to Hajek’s claim. Most significantly, the circumstance that an

individual committed murder while suffering from a serious mental illness that

impaired his judgment, rationality, and impulse control does not necessarily mean

he is not morally responsible for the killing. There are a number of different

conditions recognized as mental illnesses, and the degree and manner of

impairment in a particular individual is often the subject of expert dispute. Thus,

while it may be that mentally ill offenders who are utterly unable to control their

behavior lack the extreme culpability associated with capital punishment, there is

likely little consensus on which individuals fall within that category or precisely

where the line of impairment should be drawn. Thus, we are not prepared to say

that executing a mentally ill murderer would not serve societal goals of retribution

and deterrence. We leave it to the Legislature, if it chooses, to determine exactly

the type and level of mental impairment that must be shown to warrant a

categorical exemption from the death penalty.


There is no dispute that evidence concerning an individual capital

defendant’s mental illness may be relevant in the guilt phase to the mental state

issues (§§ 28, 29) and in the penalty phase to the issue of mitigation (§ 190.3,

factors (d), (h)). Hajek, however, has not established the propriety of extending

the categorical prohibition against executing mentally retarded offenders to the

broader category of mentally ill defendants, nor that imposition of the death

penalty is inappropriate in his particular case.

12. Constitutional Challenges to the Death Penalty Statute

In addition to those constitutional challenges to the death penalty statute

already addressed in connection with defendants’ claims of instructional error

above, defendants also contend the statute is unconstitutional because it fails to

require intercase proportionality review. We have previously considered and

rejected this claim and see no reason to reconsider that holding. (People v.

Parson, supra, 44 Cal.4th at pp. 368-369, and cases cited.)

Defendants contend they are denied equal protection of the law because

some protections extended to noncapital defendants are not extended to capital

defendants. As we have recognized, however, “ ‘[t]he availability of certain

procedural protections in noncapital sentencing — such as a burden of proof,

written findings, jury unanimity and disparate sentence review — when those

same protections are unavailable in capital sentencing, does not signify that

California’s death penalty statute violates Fourteenth Amendment equal protection

principles.’ ” (People v. Pearson, supra, 56 Cal.4th at p. 478.)

Moreover, “the asserted flaws in our death penalty statute, whether

considered individually or together, do not render it unconstitutional.” (People v.

Pearson, supra, 56 Cal.4th at p. 479.)


13. International Law

Defendants contend the imposition of the death penalty violates

international law. Not so. “California’s death penalty law does not violate

international law. We reach this conclusion taking into consideration

defendant[s’] assertions that the International Covenant on Civil and Political

Rights binds state courts and that international legal norms are among the evolving

standards of decency used to define the scope of the Eighth Amendment to the

federal Constitution.” (People v. Duenas (2012) 55 Cal.4th 1, 28; see Streeter,

supra, 54 Cal.4th at p. 268 [no authority prohibits a death sentence rendered in

accordance with the requirements of state and federal constitutional and statutory


Vo contends that international law also prohibits his execution because it

would contravene international prohibitions against racial discrimination. Unable

to show he was the victim of racial discrimination in this prosecution, he relies

instead on statistical studies that purport to show racial discrimination against

African-Americans in the application of the death penalty. The relevance of such

studies as to Vo, who is not African-American, is questionable but, in any event,

as he concedes, the United States Supreme Court has rejected the use of such

statistical evidence to show racial discrimination in capital cases. (McCleskey v.

Kemp (1987) 481 U.S. 279, 312-313.)

14. Cumulative Prejudice

Defendants contend the cumulative effect of prejudice from errors at both

the guilt and penalty phase requires reversal. We disagree. “No reasonable

possibility exists that the jury would have reached a different result absent any of

the acknowledged or asserted errors under the applicable federal or state standard

of review. [Citations.]” (Houston, supra, 54 Cal.4th at p. 1233.)


D. Miscellaneous Claims

1. Funding Issues

Vo contends that delays in payment to defense counsel and defense experts

and the denial of his request for funds to reinterview penalty phase witnesses

violated his constitutional rights to effective assistance of counsel, to due process,

to present a defense and to a reliable capital trial. His claims are without merit.

a. Delays in payment to defense counsel

Vo was represented by two attorneys. James Blackman, his lead attorney,

was appointed pursuant to section 987.2, subdivision (a)(3), which authorizes the

appointment of private counsel where “because of a conflict of interest or other

reasons, the public defender has properly refused.” Jeane Dekelver was appointed

cocounsel pursuant to Keenan v. Superior Court, supra, 31 Cal.3d 424, after Vo’s

original Keenan counsel withdrew. At an in camera hearing on April 26, 1995,

Blackman complained that certain funding requests for ancillary services had been

cut and that Dekelver had not been paid. The following day, Blackman reported

the ancillary funding requests had been restored, but that payment to Dekelver

remained an issue. A further in camera hearing was conducted on May 10, 1995,

in which the conflicts administrator — evidently the person who processed billing

and submitted it for payment — told the court she had instructed her staff to

review and to deliver Blackman’s and Dekelver’s claims for payment. The

conflicts administrator alluded to funding issues created by an unrelated case

referred to as the Nuestra Familia case that had siphoned off funding from the

conflicts budget. She assured the court that funds would be available to pay

counsels’ claims.

At a subsequent in camera hearing on May 16, 1995, Blackman reported

that he had not been paid for a month, that Dekelver had not been paid for two


months, and that two defense experts had still not been paid. The conflicts

administrator, who was again present, explained that she understood there was no

money in the conflicts account. She reported, however, that the county had sent a

fax indicating some money would be available before May 23, when the Santa

Clara County Board of Supervisors would address the conflicts budget, which had

been exhausted because of the Nuestra Familia case. She explained that the board

was not refusing to fund conflicts, as Blackman had represented, but had deferred

a decision. At her suggestion, the court ordered her to convey to the county that

payment was required so the case could proceed to the penalty phase trial.

Although further proceedings were held regarding defense requests for ancillary

services, defense counsel made no further claims regarding nonpayment for


From this record, it appears that counsel were not paid for their services for

a period of one month in Blackman’s case and two months in Dekelver’s case, due

to funding shortfalls in the county’s conflicts budget. While the delay in payment

was undoubtedly stressful for trial counsel, Vo fails to show it resulted in a denial

of counsel or in counsel’s rendering constitutionally ineffective assistance.

Vo appears to suggest the delay in payment created a conflict of interest,

but he fails to identify any particular conflict. Vo’s reliance on People v. Ortiz

(1990) 51 Cal.3d 975 is misplaced because, unlike the situation there, the trial

court here did not force defendant to go to trial with unpaid counsel against both

his wishes and those of his attorneys. (See id. at pp. 984-988.) Indeed, the trial

court worked with defense counsel to press the conflicts administrator to secure

funding to pay counsel so the trial could proceed uninterrupted. On this record,

Vo fails to demonstrate that the temporary delay in payment affected counsel’s


performance or divided their loyalties, or that it otherwise impaired his

constitutional rights.

b. Denial of full funding for ancillary services

Vo also argues the superior court’s reduction of his request for funds for

investigative services violated his rights to counsel, to present a defense, to due

process, and to a reliable capital trial.

On June 7, 1995, Vo’s counsel appeared before the court to seek additional

funds (§ 987.9, subd. (a)) and requested $6,000 in further payments to his mental

health expert, Dr. Berg, and $10,000 to the CJCJ, which had been conducting

penalty phase witness interviews. The trial court asked Vo’s counsel to state how

many hours Berg would require for the specific tasks for which Vo sought

payment. Then, after multiplying that number by Berg’s hourly rate, the court

authorized $2,624. With respect to the CJCJ request, the court ascertained that

most of the funds sought would be used to reinterview witnesses whom CJCJ had

already interviewed. Accordingly, it authorized $812.50 to permit CJCJ to

interview previously uninterviewed witnesses and to allow an expert witness,

Vincent Schiraldi, to prepare his testimony and to testify. After Vo’s counsel

explained that the interviews for which he sought the $10,000 had already been

done, the court stated its role was to pass upon requests for work that was

contemplated, not work that had been done: “What you’re talking about really is

submitting to conflicts an after-the-fact request for monies for work performed;

that doesn’t come before me, that goes to conflicts. You’re before me for monies

for work to be done.”

“An indigent defendant has a statutory and constitutional right to ancillary

services reasonably necessary to prepare a defense. [Citations.] The defendant

has the burden of demonstrating the need for the requested services. [Citation.]


The trial court should view a motion for assistance with considerable liberality,

but it should also order the requested services only upon a showing they are

reasonably necessary. [Citation.] On appeal, a trial court’s order for ancillary

services is reviewed for abuse of discretion. [Citations.]” (People v. Guerra

(2006) 37 Cal.4th 1067, 1085; § 987.9, subd. (a).)

Vo complains of delays in paying some of his experts but, as with his claim

regarding delays in payments for counsel, he fails to demonstrate that delay alone

rises to a problem of constitutional magnitude. His chief complaint involves the

reduction of his requests for funds to reinterview witnesses for the penalty

phase.28 Vo argues the court’s denial of his request for that funding reflected an

unreasonable view of the scope of mitigating evidence. We disagree.

When the trial court asked Vo’s counsel to justify his request to

“reinterview every witness,” counsel replied, “[b]ecause it’s a death penalty case.”

The court responded, “No, no . . . . That buzzword doesn’t do it with public

money. Whether it’s a death penalty case or whether it’s a murder case or whether

it’s a rape case, you have to make an appropriate showing for the expenditure of


Vo advances two other arguments that need not detain us. First, he asserts

that Santa Clara County’s practice of channeling funding for ancillary services
through the conflicts administrator rather than the superior court violated section
987.9. But, as the statute requires, Vo’s request for ancillary funds was presented
to, and passed upon by, a judge. The fact that actual payment of the funds may
have been administered by the conflicts administrator would not appear to be, as
Vo claims, an improper delegation of the statutory responsibility to someone other
than a judicial officer. Vo also complains that the judge who ruled on his request
— Judge Hastings — improperly denied a motion to disqualify himself from
hearing Vo’s request for ancillary services. Vo cannot challenge the court’s ruling
on the disqualification motion on appeal. (People v. Panah, supra, 35 Cal.4th at
pp. 444-445 [ruling on a disqualification motion is not an appealable order but can
only be reviewed by a writ of mandate from the appropriate Court of Appeal
within 10 days of notice to the parties of the decision].)


public money . . . . You don’t use the buzzword ‘capital case’ and get a blank

check.” The trial court was correct. “The defendant has the burden of

demonstrating the need for the requested service.” (People v. Gonzales and Soliz

(2011) 52 Cal.4th 254, 286.) Defense counsel failed to demonstrate the necessity

of reinterviewing witnesses to whom his investigators had already spoken. Under

these circumstances, the court did not abuse its discretion in reducing his funding

request.29 There being no abuse of discretion, we necessarily reject Vo’s

constitutional claims as well.

2. Compliance with Section 190.9

Defendants contend reversal is required because the trial court’s failure to

comply with section 190.9 — which requires that “all proceedings” in a capital

case “be conducted on the record with a reporter present” — has resulted in an

inadequate record on appeal. They point to numerous off-the-record conferences

during the preliminary hearing and at both the guilt and penalty phases of their

trial. This statutory violation, they claim, is also an error of constitutional

magnitude that implicates their rights to due process, effective assistance of

counsel, and heightened reliability in a capital case.

We recently summarized the governing principles thusly: “ ‘All

proceedings in a capital case must, under section 190.9, be conducted on the

record with a reporter present and transcriptions prepared. [Citation.] “ ‘[N]o

presumption of prejudice arises from the absence of materials from the appellate


To the extent Vo’s complaint is that the court erred by denying his request

for funds to pay for work that he had had CJCJ do, evidently without prior
authorization, he fails to demonstrate that the court’s position — that it was
responsible only for the authorization of payment for future investigations and not
payment for past investigations — was wrong. Moreover, we fail to see what
prejudice Vo suffered if the work was already done and the issue was simply a
matter of payment.


record [citation], and defendant bears the burden of demonstrating that the record

is inadequate to permit meaningful appellate review [citation].’ ” [Citations.]’

[Citation.] ‘The record on appeal is inadequate . . . only if the complained-of

deficiency is prejudicial to the defendant’s ability to prosecute his appeal.

[Citation.] It is the defendant’s burden to show prejudice of this sort. [Citation.]’

[Citation.] ‘Moreover, irregularities in the preliminary hearing are no basis for

reversal on appeal unless defendant can demonstrate a resulting unfairness in the

subsequent trial. [Citations.]’ [Citation.]” (People v. Tully (2012) 54 Cal.4th 952,

1070, fn. omitted.) Hence, a showing of prejudice requires more than merely

listing the occasions on which there was an off-the-record discussion, and it is

insufficient to simply “link each missing transcript to various arguments without

explaining why the missing transcript had any impact . . . on [the defendant’s]

ability to raise the issue or on our ability to review it.” (Id. at p. 1075.)

Here, defendants do little more than list missing transcripts without making

the required showing. Hajek concedes he cannot “demonstrate specifically the

prejudice he suffered” resulting from any noncompliance with section 190.9, but

he asks this court to “take into account the resulting numerous gaps in the trial

record when it assesses the cumulative effect of all the errors that occurred at his

trial.”30 He also urges us to reexamine our earlier decisions recognizing that the

defendant has the burden of showing prejudice and to instead hold that statutory

noncompliance is reversible per se or, alternatively, presumptively prejudicial.

Vo, who also fails to demonstrate prejudice, joins in this argument.


Hajek dwells on the trial court’s failure to have required the court reporter

to transcribe the audiotape of defendants’ jailhouse conversation when it was
played for the guilt phase jury. But both counsel for the defense stipulated that the
tape need not be transcribed. The claim is thus forfeited. (Houston, supra, 54
Cal.4th at p. 1213.)


We have previously rejected the invitation to declare a trial court’s failure

to comply with section 190.9 either reversible per se or presumptively prejudicial.

(People v. Taylor (2010) 48 Cal.4th 574, 660 [rejecting reversible per se standard];

People v. Wilson (2005) 39 Cal.4th 309, 325 [no presumption of prejudice arises

from absence of materials from the appellate record]; People v. Cummings, supra,

4 Cal.4th at p. 1333, fn. 70 [“Failure to report bench or chambers conferences

between counsel and the trial judge is not a ‘structural defect affecting the

framework within the trial proceedings,’ ” nor, on appeal, is prejudice presumed].)

We have likewise rejected the argument that section 190.9 creates a

constitutionally protected liberty interest in a court reporter’s presence at every

exchange between the court and counsel, as well as arguments that statutory

noncompliance automatically violates the Fourteenth or the Eighth Amendments

or impairs a defendant’s Sixth Amendment right to effective assistance of counsel.

(People v. Taylor, supra, 48 Cal.4th at p. 660; People v. Pinholster, supra,

1 Cal.4th at p. 922.)

The federal due process clause requires only that the state furnish the

defendant with a record sufficient to permit adequate and effective review.

(People v. Taylor, supra, 48 Cal.4th at p. 660.) These principles apply even

where, as here, the participants’ lack of recall precluded a settled statement with

respect to the omitted conferences. (People v. Cummings, supra, 4 Cal.4th at

p. 1333, fn. 70.)

We have found the record sufficient to permit review of all issues raised

(People v. Tully, supra, 54 Cal.4th at p. 1075), and defendants have not sustained

their burden of demonstrating otherwise. We therefore conclude the trial court’s

failure to comply with section 190.9 was harmless.



The lying-in-wait special-circumstance findings are reversed as to both

defendants. All Penal Code former section 12022.5 enhancements found true as to

defendant Hajek are struck and replaced with enhancements under Penal Code

former section 12022, subdivision (b) (now § 12022, subd. (b)(1)). The superior

court is directed to amend the abstract of judgment to reflect this modification and

to forward the amended abstract of judgment to the Department of Corrections and

Rehabilitation. The judgments are otherwise affirmed.






I concur in the majority opinion except in one respect: As to defendant Loi

Tan Vo, the evidence is, in my view, insufficient to support the jury’s torture

findings. I would therefore reverse, as to Vo, the jury’s true finding on the torture-

murder special-circumstance allegation (Pen. Code, § 190.2, subd. (a)(18)) and set

aside the judgment of death as to Vo. I further conclude that there is insufficient

evidence to convict Vo of first degree murder on a torture-murder theory, although

I agree with the majority that Vo’s first degree murder conviction can be upheld

on the theory of deliberate and premeditated murder.


Codefendants Hajek and Vo, who were both 18 years old, devised a scheme

to go to the home of 16-year-old Ellen Wang (with whom Hajek had been

arguing), to kill Ellen’s family while she watched, and then to kill Ellen. Hajek

announced his intention in advance to an acquaintance. On January 18, 1991,

Hajek and Vo arrived at the Wang residence about 10:00 a.m. They had gloves

and a pellet gun. Inside the home were Ellen’s 10-year-old sister, Alice, and her

73-year-old grandmother, Su Hung.

Hajek and Vo used a ruse to enter the Wang home. Once inside, Hajek

pointed the pellet gun at Alice, and Vo tied Su Hung’s hands behind her back and

took her upstairs. Hajek guarded Alice as she watched television downstairs. At

one point, Hajek took Alice to an upstairs bathroom and left her there. Vo later


took Alice back downstairs, and Hajek followed after about 10 minutes.

Eventually, Alice’s mother, Cary, arrived. Vo took a knife from the kitchen and

hid in a downstairs bathroom. When Cary entered the house, Vo emerged from

hiding and threatened Cary with the knife. He told her that if she screamed, he

would kill the family. Cary cooperated, and Vo later returned the knife to the


Defendant Vo then took Cary to Ellen’s school in an effort to find Ellen.

Cary persuaded Vo to stop at Cary’s office, where Cary managed to tell someone

to call the police. While Cary was out with Vo, Ellen’s father, Tony, came home

and found defendant Hajek downstairs with young Alice. Alice told her father that

Hajek had a gun. When Cary and Vo returned, Vo and Hajek detained the entire

group. During that time, each defendant went upstairs, separately, many times.

On two occasions (once before Tony arrived, and once after), Hajek took Alice

upstairs to see her grandmother. The first time this occurred, however, Hajek went

upstairs alone before taking Alice upstairs. Alice could not get a clear look at her

grandmother on either occasion, but she thought her grandmother was reading a

newspaper or sleeping.

When police officers arrived, they arrested both Hajek and Vo. Su Hung’s

dead body was found in an upstairs bedroom, her hands tied behind her back and

her mouth gagged. She had been strangled with a cord, and there was a three-

quarter-inch-deep and three-and-a-half-inch-long slash across her throat. An

autopsy revealed burst blood vessels in her face, indicating that she was strangled

slowly before her throat was slashed. The jugular vein on the right side of her

neck was partly severed. The doctor who performed the autopsy concluded, from

the large amount of blood, that Su Hung was alive when her jugular vein was

severed. Su Hung also had a one-inch-deep and one-inch-long stab wound on her

shoulder and five superficial cuts on her chest. The stab wound on her shoulder


was inflicted before death, and the superficial cuts could have been inflicted

before death. The autopsy doctor could not determine whether the strangulation

had rendered Su Hung unconscious before infliction of the cuts, the stab wound,

and the throat slash.

Blood found on a glove used by defendant Hajek was consistent with Su

Hung’s blood. There was also blood on Hajek’s jacket, although the source could

not be determined. There was no blood on Vo or on any of his clothing. A knife

found in a puddle of water in the kitchen sink tested positive for blood, but the

tests could not rule out an animal source.


“ ‘In reviewing a challenge to the sufficiency of the evidence, we do not

determine the facts ourselves. Rather, we “examine the whole record in the light

most favorable to the judgment to determine whether it discloses substantial

evidence — evidence that is reasonable, credible and of solid value — such that a

reasonable trier of fact could find the defendant guilty beyond a reasonable

doubt.” [Citations.] We presume in support of the judgment the existence of

every fact the trier could reasonably deduce from the evidence. [Citation.] [¶]

The same standard of review applies to cases in which the prosecution relies

primarily on circumstantial evidence and to special circumstance allegations.

[Citation.] “[I]f the circumstances reasonably justify the jury’s findings, the

judgment may not be reversed simply because the circumstances might also

reasonably be reconciled with a contrary finding.” [Citation.] We do not reweigh

evidence or reevaluate a witness’s credibility.’ [Citation.]” (People v. Houston

(2012) 54 Cal.4th 1186, 1215.)

“To prove torture murder, the prosecution must establish ‘ “a willful,

deliberate, and premeditated intent to cause extreme pain or suffering for the

purpose of revenge, extortion, persuasion, or another sadistic purpose.” ’


[Citation.] To prove a torture-murder special circumstance, the prosecution must

show that defendant intended to kill and had a torturous intent, i.e., an intent to

cause extreme pain or suffering for the purpose of revenge, extortion, persuasion,

or another sadistic purpose. [Citation.] The jury may infer the intent to inflict

extreme pain from the circumstances of the crime, the nature of the killing, and the

condition of the victim’s body. [Citation.]” (People v. Streeter (2012) 54 Cal.4th

205, 237 (Streeter).) In addition, “the trier of fact may find intent to torture based

on all the circumstances surrounding the charged crime, including the nature and

severity of the victim’s wounds and any statements by the defendant revealing his

state of mind during the crime.” (People v. Bemore (2000) 22 Cal.4th 809, 841.)


As discussed above, to prove torture murder or the torture-murder special

circumstance, the prosecution must establish “intent to cause extreme pain or

suffering.” (Streeter, supra, 54 Cal.4th at p. 237.) Here, there is no evidence of

such intent other than the nature of Su Hung’s injuries. At trial, the evidence

describing those injuries was sufficient to allow the jury to reasonably infer that

whoever had inflicted the injuries intended to cause extreme pain, and therefore

the jury’s torture findings can be upheld only as to that person (or those persons).

The evidence, however, is weak as to the identity of that person (or those persons).

Defendants Hajek and Vo could have inflicted the wounds together, while Su

Hung’s 10-year-old granddaughter Alice was in the upstairs bathroom, or one

defendant could have inflicted the wounds alone, while the other was watching

Alice, or the wounds could have been inflicted at different points in time, some by

Vo and others by Hajek.

That defendant Hajek went upstairs before bringing Alice upstairs to see Su

Hung could support the inference that Hajek knew Su Hung was injured and he

wanted to make it appear to Alice as if Su Hung were fine. The same evidence,


however, also suggests that Su Hung’s throat had not, at that point, been slashed,

as crime scene photos show that the partial severing of Su Hung’s jugular vein

produced a tremendous amount of blood that Hajek could not easily have

concealed from Alice. Alice’s testimony that her grandmother appeared to be

reading the newspaper or sleeping also supports the conclusion that Su Hung’s

throat had not been cut when Alice saw her, for Alice surely would not have

described her grandmother in such innocuous terms if she had seen large amounts

of blood. Although Alice’s statement that her grandmother was sleeping is

consistent with the possibility that Su Hung was unconscious and, therefore, had

already been strangled, that possibility tells us nothing about who strangled her.

The jury also could have reasonably inferred that the knife found in a

puddle of water in the kitchen sink was the weapon used to slash Su Hung’s throat

and to inflict the wounds on her shoulder and torso. The water in the sink

suggested that the sink had been recently used, from which a juror could infer that

the knife had been washed. Defendants Hajek and Vo had no reason to wash the

knife unless it was bloody from having been used in wounding someone. But

even if the knife in the sink was the weapon used against Su Hung, the jury was

not presented with evidence from which it could reasonably determine whether

Hajek or Vo was the one who put it there. As mentioned on page 2, ante, Vo did

use a knife from the kitchen to threaten Cary, but he returned that knife to the

kitchen, and because he did not wound Cary when he threatened her, he did not

need to wash it. Thus, the knife in the sink may not have been the knife that Vo

used to threaten Cary. Moreover, once Vo had placed back in the kitchen the

knife he used to threaten Cary, there was no reason to assume (as the majority

does (maj. opn., ante, at p. 51)) that Vo, rather than Hajek, wielded the knife

against Su Hung. At best, one could conclude that Vo knew where in the kitchen

to find a knife and that he was inclined to use it as a weapon. But certainly Hajek,


too, could have retrieved a knife from the kitchen if that was what he wanted to

do. In addition, the fact that Vo was inclined to use a knife as a weapon does not

imply that Hajek was not inclined to do so. In short, the fact that Vo wielded a

knife against Cary cannot support a reasonable inference that it was Vo who

wielded a knife against Su Hung.

The majority relies on the fact that a second pair of gloves (not the gloves

defendant Hajek was wearing) was found on the table in the kitchen. The majority

reasons that defendant Vo might have gone into the kitchen, removed his gloves,

obtained a knife, used it to kill Su Hung, and then washed his hands and the knife.

(Maj. opn., ante, at pp. 51-52.) Vo might indeed have done all that, but the

evidence of a pair of gloves lying on the kitchen table does not tend to establish

that Vo did all that. Nor can we infer much from Vo being the one who tied Su

Hung’s hands behind her back and took her upstairs. Although that evidence

indicates that Vo aided and abetted Su Hung’s murder, no reasonable juror could

infer from that evidence that Vo personally inflicted Su Hung’s wounds and

therefore was guilty of torturing her.

The strongest evidence of who inflicted the wounds on Su Hung (and thus

tortured her) was the blood on defendant Hajek’s glove that matched Su Hung’s

blood. As noted earlier, the doctor who performed the autopsy concluded that Su

Hung was alive when her jugular vein was severed. He based that conclusion on

the large amount of blood that had poured from her neck, as shown in the crime

scene photos. In my view, it would be very hard to partially sever the jugular vein

of a living person, thus releasing a large amount of blood, and not get any of that

blood on one’s hand or glove. Defendant Vo had no blood on his hands or on his

clothing. That Hajek’s glove was stained by Su Hung’s blood is a reasonably

strong indication that Hajek, not Vo, was the one who slashed Su Hung’s throat.

Of course, there could be other interpretations of the evidence, but the evidence


presented at trial was sufficient to allow the jury to infer that it was Hajek who

wielded the knife against Su Hung and that, based on her wounds, Hajek had the

requisite torturous intent. It is possible, of course, that defendant Vo first

strangled Su Hung, after which Hajek wielded the knife (perhaps in a separate

incident). But lacking is evidence from which that sequence of events can

reasonably be inferred. As this court has observed, a jury’s finding of guilt cannot

be based on a mere possibility. (People v. Reyes (1974) 12 Cal.3d 486, 500

(Reyes); People v. Kunkin (1973) 9 Cal.3d 245, 250 (Kunkin); People v. Redmond

(1969) 71 Cal.2d 745, 755 (Redmond); Estate of Stanford (1957) 49 Cal.2d 120,

164; see People v. Ramon (2009) 175 Cal.App.4th 843, 851 (Ramon); Kidron v.

Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581.)

The majority here nevertheless concludes that “there was substantial

evidence showing that Vo shared Hajek’s torturous intent” (maj. opn., ante, at

p. 52) and that “the totality of the circumstances of the crime amply demonstrated

an intent to torture . . . as to both defendants” (ibid.). As to Vo, the majority’s

reasoning makes four points, which I discuss below.

First, the majority observes that the prosecution’s case included “substantial

evidence that Vo had his own independent motive to seek revenge on Ellen,”

because he had romantic feelings for Ellen’s friend, with whom Ellen had

quarreled. (Maj. opn., ante, at p. 50.) But such a motive hardly supports an

inference that Vo intended to inflict extreme pain on murder victim Su Hung, who

was Ellen’s grandmother. Thus, the evidence the majority cites does not establish

torturous intent on Vo’s part.

Second, the majority notes that Vo knew about Hajek’s altercation with

Ellen Wang and that Hajek made no secret of his intent to kill Ellen and her

family. This leads the majority to conclude that a reasonable juror could infer that

Vo knew Hajek’s murderous intent when Vo accompanied Hajek to the Wang


family’s home. (Maj. opn., ante, at p. 50.) I agree. But the fact that Vo knew of

Hajek’s murderous intent does not establish that Vo intended to inflict extreme

pain on Ellen’s grandmother. Again, the evidence the majority cites fails to

establish torturous intent on Vo’s part.

Third, the majority asserts that Vo actively participated in carrying out

Hajek’s plan to kill Ellen and her family: Among other things, Vo tied up Su

Hung (Ellen’s grandmother), threatened Cary (Ellen’s mother) with a knife, and

then took Cary to Ellen’s school to get Ellen. (Maj. opn., ante, at p. 51.) Again,

the majority misses the point. With respect to the jury’s torture findings, the

critical issue is not whether Vo was an accomplice to Su Hung’s murder; rather,

the critical issue is whether Vo intended to inflict extreme pain on Su Hung. The

majority has not pointed to any evidence from which a reasonable juror could infer

that Vo had the latter intent. Even if Vo’s active participation in carrying out

Hajek’s murderous plan could give rise to a suspicion that Vo personally inflicted

Su Hung’s injuries, Su Hung’s blood on Hajek’s glove tends to exonerate Vo by

implicating Hajek. Moreover, “evidence that ‘merely raises a strong suspicion of

the defendant’s guilt is not sufficient to support a conviction[;] [s]uspicion is not

evidence . . . .’ ” (People v. Watkins (2012) 55 Cal.4th 999, 1024, quoting

Redmond, supra, 71 Cal.2d at p. 755.)

Finally, the majority notes that “the evidence is consistent with a conclusion

that Vo actively participated in the torture of Su Hung.” (Maj. opn., ante, at p. 51,

italics added.) The majority reasons that, because nothing “foreclose[d] a

conclusion that Vo tortured . . . the victim” (ibid.), the jury could reasonably find

that he did so (even though the evidence of blood on Hajek’s glove tended to

implicate Hajek rather than Vo, who had no blood on his clothing or on himself).

In essence, the majority concludes that Vo can be found guilty of torture because

he presented no evidence clearly exonerating him of torture. It is true that this


court must defer to a jury’s verdict when reviewing that verdict for sufficiency of

the evidence. But that deference does not mean allowing a jury to infer facts from

a mere possibility. As has been observed, “a mere possibility is nothing more than

speculation[, and] [s]peculation is not substantial evidence.” (Ramon, supra, 175

Cal.App.4th at p. 851; see Reyes, supra, 12 Cal.3d at p. 500; Kunkin, supra, 9

Cal.3d at p. 250; Redmond, supra, 71 Cal.2d at p. 755.)


My conclusions are these:

With respect to defendant Hajek, I agree with the majority that the evidence

sufficiently supports the jury’s finding that he intended murder victim Su Hung to

experience extreme pain or suffering, because there is substantial evidence that

Hajek inflicted wounds that caused such pain and suffering. Therefore, like the

majority, I would affirm the judgment of death as to defendant Hajek.

But with respect to defendant Vo, the evidence is, in my view, insufficient

to support the jury’s finding that he shared Hajek’s intent to cause extreme pain

and suffering. Therefore, unlike the majority, I would reverse, as to Vo, the

torture-murder special-circumstance finding, and hence the judgment of death.

Like the majority, however, I would uphold Vo’s first degree murder conviction

on the theory of deliberate and premeditated murder. (See maj. opn., ante, at

pp. 52-53.)


Retired Associate Justice of the Supreme Court, assigned by the

Chief Justice pursuant to article VI, section 6 of the California Constitution.


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Hajek and Vo

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: May 5, 2014

County: Santa Clara
Judge: Daniel E. Creed



Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Alison Pease,
Deputy State Public Defender, for Defendant and Appellant Stephen Edward Hajek

Doron Weinberg and Kathryn K. Andrews, under appointments by the Supreme Court; Law Offices of
Doron Weinberg and Marilyn A. Waller for Defendant and Appellant Loi Tan Vo.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gerald A. Engler, Assistant Attorney General, Nanette Winaker and Moona Nandi,
Deputy Attorneys General, for Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Alison Pease
Deputy State Public Defender
770 L Street, Suite 1100
Sacramento, CA 95814-3518
(916) 322-2676

Kathryn K. Andrews
3020 El Cerrito Plaza
El Cerrito, CA 94530
(510) 527-9543

Moona Nandi
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-3664
(415) 703-5962


Opinion Information
Date:Docket Number:
Wed, 07/23/2014S049626M