Filed 9/14/15 P. v. Soy CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B253692

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA074870)
         v.

KIRIVUDY SOY et al.,

         Defendants and Appellants.



         APPEALS from judgments of the Superior Court of Los Angeles County.
Gary J. Ferrari, Judge. Affirmed.
         Donna L. Harris, under appointment by the Court of Appeal, for Defendant and
Appellant Kirivudy Soy.
         J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant
Kirivuthy Soy.
         Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Stephani A. Miyoshi and
William N. Frank, Deputy Attorneys General, for Plaintiff and Respondent.
                  ___________________________________________________
       A jury convicted defendants Kirivudy Soy and Kirivuthy Soy of the second degree
murder of Dara Ork.1 (Pen. Code, § 187, subd. (a).)2 The jury found that D. Soy
personally used a deadly weapon, a knife, in the commission of the murder. (§ 12022,
subd. (b)(1).) The jury found that T. Soy personally and intentionally used a firearm in
the commission of the murder. (§ 12022.53, subd. (b).)
       The trial court sentenced D. Soy to life with a minimum of 15 years with a
consecutive year for the use of a knife. The court sentenced T. Soy to life with a
minimum of 15 years and an additional 10 years for use of a handgun.
       D. Soy appeals on the grounds that: (1) the trial court’s denial of the motion to
disclose juror information was an abuse of discretion; and (2) the trial court’s erroneous
denial of the new trial motion based on its finding that the prosecutor did not commit
misconduct was a denial of his rights to due process, a fair trial, and a fair determination
of guilt.
       T. Soy appeals on the grounds that: (1) there was insufficient evidence to support
his conviction; (2) the prosecutor committed prejudicial misconduct that caused the
deadlocked jury to convict him; (3) his trial counsel was ineffective for not objecting to
the prosecutor’s misconduct; (4) the trial court improperly curtailed defense counsel’s
supplemental closing argument; (5) the denial of counsel’s motion for new trial
comprised an abuse of discretion; (6) the matter should be remanded with directions to
reconsider the motion for disclosure of the jurors’ identifying information; (7) there was
insufficient evidence to support the true finding on the firearm enhancement; and (8)
cumulative error compels reversal.




1      All further references to Kirivudy Soy will state “D. Soy,” and all further
references to Kirivuthy Soy will state “T. Soy,” as was the practice at trial and in the
appellate briefs.
2      All further references to statutes are to the Penal Code unless stated otherwise.


                                              2
                                         FACTS
Prosecution Evidence
      On the night of July 1, 2007, four young men and one young woman of
Cambodian descent were in a Long Beach alley “hanging out” and drinking. The alley
ran between 16th Street and 17 Street. The group included Tha Teng (the female),
Sopheap Tuoth, Sean Ny, and Dara Ork. None of them had any weapons on them. At
one point, D. Soy, who was known as “Coke Face,” walked into the alley from 17th
Street and passed the group. Teng hit him in the face as he walked by. D. Soy just kept
walking toward 16th Street, and Teng followed him, trying unsuccessfully to hit him
again. Tuoth and the other two men followed Teng in an effort to bring her back and
calm her down. When all of them reached 16th Street, they turned left toward Alamitos
Avenue. Tuoth managed to take Teng back to the alley to the same spot where they had
been hanging out, but Ork and Ny did not come with them. When Ork and Ny returned,
they were “amped up.” They said they got into a fight with D. Soy. Ork said that D. Soy
threatened to come back with a weapon.
      About 10 to 20 minutes later, a two-door white car driven by T. Soy, D. Soy’s
identical twin, entered the alley from 16th Street.3 The white car stopped near the group,
and D. Soy and T. Soy, as well as a third person, jumped out of the car. T. Soy was the
driver. D. Soy got out on the passenger side. Tuoth said he did not recognize the third
person in the car. He was a male Asian with long hair, and he got out on the passenger
side also. Tuoth had seen the Soy brothers before and recognized them “when [he] saw
them.” Tuoth saw T. Soy point a gun at Ny’s chest. He also saw D. Soy run up to Teng,
hit her, and knock her to the ground. D. Soy then ran over to Ork and began to fight with
him. It looked like “just fist fighting.” T. Soy continued to point his gun at Ny. The
struggle between D. Soy and Ork “was over real quick.” All three of the men who came
in the white car jumped back in and took off through the alley towards 17th Street.


3     Tuoth believed the white car pulled up 10 minutes after the initial incident with
D. Soy, but Teng thought the time interval was 20 minutes.


                                            3
       Tuoth ran over to Ork and tried to pick him up. He felt that Ork was wet with
something warm, and Tuoth screamed to call 911. Teng rushed over and saw that Ork
was breathing “really hard” and sounded as if it was difficult for him to breathe. Teng
called 911 from her cell phone.
       Long Beach Police Officer Rogelio Trias responded to a 10:44 p.m. dispatch
regarding a possible subject down from a gunshot at 17 Street and Alamitos Avenue. He
and his partner were directed to an incident in the alley at the rear, and they arrived at that
location in less than a minute. They found the victim lying on the ground, soaked in
blood. The paramedics followed them into the alley and treated the victim. Ork died of
multiple stab wounds (eight wounds) within several minutes due to loss of blood and
inability to breathe.
       Tuoth, Teng, and Ny were separated by police to be interviewed. Teng had
suffered an injury to her knee, a contusion to her right eyebrow and a bruise on her right
shoulder. Tuoth told Officer Trias he had never seen the men in the car before. Tuoth
was very upset. Later, at the police station, Tuoth and Teng identified the Soy brothers to
Detective Mendoza as the driver and passenger of the white car. They also identified
photographs of the brothers from photographic lineups.
       Police obtained warrants for the arrest of the Soy brothers, but they had
disappeared. A deputy sheriff located and detained appellant T. Soy in January 2009 in
Compton. T. Soy told the deputy he had a pistol and three magazines under an air
mattress and the deputy retrieved them. In May 2010, Los Angeles police arrested
appellant D. Soy in the city of Eagle Rock. He gave the name “Davy Soy.”
       Police spoke with Kelly San, the twins’ mother. She listed the phone number 714-
209-3126 in her cell phone under the name “Vuthy.” Raymond McDonald, a T-Mobile
employee, explained to the jury how cell phones seek out a signal from a cell phone
tower. On the night of the stabbing, calls involving 714-209-3126 were made at 10:39
(from 562-599-1128, T. and D.’s father’s home), 10:40 (from 562-591-6348, D.’s friend
Brown’s phone), and 10:42 p.m. (from 562-591-6348). These calls pinged off a tower at
1430 East Anaheim in Long Beach. A fourth call occurred at 10:44 p.m. (from 562-599-

                                              4
1128), bouncing off a tower at 306 East Pacific Coast Highway. These two towers were
the closest towers to the stabbing scene. A fifth call at approximately 10:50 p.m. (from
562-508-7179) bounced off a tower at 200½ 27th Street. All of these calls were
consistent with the cell phone traveling northbound and they were all incoming to
number 714-209-3126.
Defense Evidence
I. T. Soy’s Testimony
       T. Soy testified that he lived at his father’s home at 2029 Orange Avenue in Long
Beach in July 2001, although he spent a lot of time at his girlfriend’s house in the San
Fernando Valley. His mother lived about a mile away from his father, on 16th Street, and
he had not lived with her since 2001. He worked as a security guard with an open carry
firearms permit, which he received in 2002 or 2004.
       Tuoth and Teng sometimes saw him getting in or getting out of his car to go to
work because his car was parked on 16th Street. They sometimes yelled, “Hey, rent-a-
cop.” He had heard Ny and Ork were Asian Boys gang members. He was afraid of Ny.
T. Soy knew Terry Teng, Tha Teng’s younger brother. T. Soy introduced his brother and
Terry Teng to his supervisor at work in order for them to get jobs.
       At the time of the stabbing, he was driving a white Acura RSX. On July 1, 2007,
he went to his father’s home on Orange Avenue with his girlfriend. He left to buy
cigarettes and received en route a call from his older brother Davy. Davy told him to get
some liquor. T. Soy did not remember Davy calling to tell him about D. Soy being
beaten.
       On his way to find liquor on Martin Luther King Boulevard, T. Soy received a call
from a man in the alley named Brown, who was a friend of D. Soy. Brown said, “Your
brother was jumped.” He drove toward the alley and stopped in front of Brown’s house
at 1165 East 16th Street. He spoke to him on the street. T. Soy then drove through the
alley from 16th Street to 17th Street and turned right on 17th Street, made a right on
Alamitos Avenue, and another on 16th Street in search of D. Soy. He then passed by his
mother’s home, saw it was dark, and drove back to his father’s home. He stayed there

                                             5
five or six minutes. D. Soy was there. T. Soy spoke with D. Soy and other people.
D. Soy was badly hurt and disfigured. That was the first time T. Soy saw D. Soy that
night. D. Soy told T. Soy that he had been “jumped.” D. Soy did not identify his
assailants, but T. Soy understood that they were the “usual guys that kick it in the alley
over there near [his] mom’s house,” such as Teng and Tuoth. T. Soy left so that no one
would come after him, thinking he was his twin. He thought the people who jumped
D. Soy might be looking for him. T. Soy went with his girlfriend to the Pechanga casino,
and then to her house. He stayed away because he did not want to get mistaken for his
brother. He heard the police were looking for him, but was not sure he was not being
mistaken for D. Soy. He did not try to clear his name because he did not do anything.
Also, the Asian Boys gang has threatened him more than once, including while in
custody.
          He did not have his firearm with him the night of the stabbing. He did not threaten
Ny with a gun. He saw none of the individuals involved when he drove through the
alley. The gun he pointed out to the deputy under the air mattress was disassembled for
safety.
          T. Soy admitted that in 2000, he was placed on probation for possessing a firearm
on school grounds. He denied telling a detective that he was a gang member. He said a
police officer labeled him a street gang member, stamped it on his paperwork, and made
up a nickname for him, “Soy Boy.” T. Soy acknowledged that in 2005 he was arrested
for assaulting his brother, Dara Soy, at his father’s home on Orange Avenue. T. Soy
admitted he had a gun and three loaded magazines in his car when he was arrested for
this assault in 2005. He testified it was his work gun, and he was staying in his car at the
time. He denied that he or D. Soy were members of, or associates of, the Suicidals
gang—a gang that is an ally of the Asian Boys gang.
          At some point around November 2008, he heard from a man named Ken who used
to be with the City Attorney’s Office and who knew his mother. T. Soy talked to Ken
about surrendering in the company of a councilman. An attorney with whom T. Soy
spoke advised him not to turn himself in yet.

                                               6
II. D. Soy’s Testimony
       D. Soy testified that on July 1, 2007, he was walking home from a friend’s house.
As he walked through the alley, he encountered the “usual people” who drank and used
drugs in the alley. He identified them as Teng, Tuoth, Ny, and Ork. Ny, Tuoth, Teng,
and Ork were “drunk.” He knew Ny was in the Asian Boys gang. He greeted Ny when
he saw him. Teng was behind Ork and Tuoth.
       Ork and Ny spoke to D. Soy. Teng walked up to him and, without saying a word,
struck him in the back of his head. D. Soy asked why Teng had hit him. Teng said,
“Because I don’t like you, Nigger.” Teng hit him five or six times and he tried to get
away from her. He began walking backwards toward 16th Street. He did not know at
what time this was. Teng kept hitting him in the face, and she took off her top shirt as if
to beat him up. D. Soy tried to block her blows. Ny, Ork, and Tuoth followed Teng. Ny
was encouraging Teng to hit D. Soy, and Ork was laughing. Tuoth unsuccessfully tried
to restrain Teng. The three pursued D. Soy all the way to the corner of 16th Street and
Alamitos Avenue. D. Soy moved toward the corner of 16th Street and Alamitos to avoid
bringing the “drama” to his home. Teng’s pursuit lasted four or five minutes.
       At the corner, D. Soy said, “Why the bitch hit me for—hitting me for?” Ork or Ny
replied, “Why do you call the home girl a bitch? Don’t call the home girl a bitch.” Ny
and Ork “swung at [him] and started jumping [him] there.” Ork kneed D. Soy in the
groin. The beating lasted four or five minutes while D. Soy yelled to attract attention.
He did not fight back.
       D. Soy “got out” and started running towards a neighbor’s house. Ork and Ny
followed behind D. Soy. D. Soy saw an old Cambodian man and asked him to call the
police, but the man just asked why they were fighting. D. Soy ran west down the man’s
driveway. Ork continued to follow him but Ny stopped. D. Soy hopped over a fence and
ran toward Brown’s house in the alley between 16th and 17th Streets. At the beginning
of the alley on the 16th Street side, he was intercepted by Ny. Ny “blindsided” him and
knocked him to the ground at the entrance of the alley. Ny began to kick D. Soy in the
stomach, and D. Soy “shitted [him]self” because he was scared. D. Soy attempted to

                                             7
crawl to Brown’s house, but Ny put him in a chokehold. Ny then pulled D. Soy up to his
feet by his neck and dragged him to the spot in the middle of the alleyway where Teng
had first hit him. At that point, Ork came jogging up. Ork punched D. Soy in the face
while Ny held him. D. Soy was having trouble breathing and tried to break away from
Ny’s chokehold, but he could not loosen Ny’s grip.
       Ork pulled out a kitchen knife and held it to appellant D. Soy’s chest. Ny asked
D. Soy, “Are you still going to call the cops on us? We can kill you right now and throw
you in the trash can and no one would know.” D. Soy thought they would kill him. He
panicked and “dropped [his] whole body weight.” He stepped on Ny’s hand and got up.
Ork then poked him in the face with the knife, and D. Soy grabbed Ork’s right hand,
which held the knife. At the same time, Ny was punching D. Soy from behind.
       D. Soy then grabbed Ork’s elbow, directed the knife toward Ork, and pushed it
against him. D. Soy tried to force the knife out of Ork’s hand but “end[ed] up grabbing
it—grabbing it, and then [he] just started, like, you know, striking him a couple times
with it.” He did not know how many times he stabbed Ork but it was more than once.
Ork remained on his feet. The stabbing lasted 10 to 20 seconds. Ny was still swinging at
D. Soy, and D. Soy dropped the knife and ran. He ran away down the alley south onto
16th Street.
       D. Soy ran to his friend Martin’s house on 16th Street. Martin told him there was
a cut on his face. D. Soy then ran east to his mother’s house. He used the bathroom to
change his boxer shorts. His mother awoke and seemed shocked because he was bloody.
He told her he had been “jumped by some Cambodians in the alley.” He then ran to his
father’s house. He climbed a fence behind his father’s apartment complex, located on
Orange Avenue between 20th and 21st Streets. He saw that about 15 people were
gathered at his father’s home. He did not know what time this was, or the time of the
assault upon him, or of any of the events.
       D. Soy went upstairs to his father’s apartment and showered. He told the people at
his father’s home that he had been jumped and people were trying to kill him. The guests
began to leave. D. Soy left the party and went to his friend’s home. He did not know his

                                             8
friend’s last name, and he did not recall his address. A couple of days later, he left the
city.4 He was afraid Asian Boys were going to kill him. He talked to someone about
turning himself in, but a lawyer told him it was not the time yet.
       “Years later,” D. Soy learned the police were looking for him for murder. He
knew that his brother was arrested for this case in January 2009. He gave the police a
false name when he was arrested because he was scared of the Asian Boys and because
he did not want to go to jail.
       D. Soy denied telling police that he was a member of the Suicidals gang. In 2005,
D. Soy was stopped by police in the company of a man named Cho with Asian Boys
tattoos. He said he did not know Cho was from Asian Boys. He thought he remembered
being found riding with Cho when the police found meth in the car. D. Soy told police he
was “going down for it” but “it was really Cho’s stuff.”
III. Other Defense Witnesses
       Davy Soy is the older brother of the Soy twins and lived in his father’s home on
Orange Avenue. T. Soy, Dara Soy (another brother), and their father lived there, as well,
in 2007. The father’s home was roughly over a half mile away from where defendants’
mother lived with appellant D. Soy on 16th Street near Alamitos Avenue. Dara Soy had
long hair.
       On the evening of July 1, 2007, Davy Soy spoke to appellant T. Soy once or twice
on the telephone. He called T. Soy from the Orange Avenue telephone and asked him to
go to the store. The second call was about appellant D. Soy being in trouble as reported
by their mother at “10:30-ish.” Later, Davy Soy saw D. Soy, bruised and bloody,
climbing over a fence at the Orange Avenue residence. D. Soy stayed for about 20
minutes. D. Soy told Davy Soy that he had been “jumped” in the alleyway. He said he
had been jumped by a “dike bitch” and then by her two male friends. He did not tell
Davy Soy that he had just stabbed someone.



4      D. Soy later testified he left town that night.


                                               9
       D. Soy went to an upstairs bathroom and cleaned himself up. T. Soy arrived at the
Orange Avenue residence about five or 10 minutes after D. Soy had left. T. Soy was
driving a white Acura two-door car.
       Ban Khun is a cousin of the Soy twins. He was at the party at the Orange Avenue
home on July 1, 2007. He saw T. Soy there at 9:00 p.m. T. Soy left to get cigarettes and
beer. Davy Soy took a telephone call and said D. Soy was in trouble. Davy called T.
Soy. Ban Khun saw D. Soy arrive after 10:00 p.m. looking “panick[ed,]” and “roughed
up.” His cheek was cut under his eye. D. Soy went to the restroom. A little while after
seeing D. Soy, Ban Khun saw T. Soy arrive back at the Orange Avenue residence.
Shortly after appellant T. Soy returned, Ban Khun left at about 11:00 p.m. D. Soy was
still at the Orange Avenue residence when Ban Khun left at 11:00 p.m.
       John Khun, another cousin of the Soy twins, was also at the party. He arrived
after 10:00 p.m., stayed about half an hour, and did not see either defendant at the party
when he arrived. Later, he saw D. Soy climbing over a 10-foot-high gate. He saw that
D. Soy had been beaten and had blood on his face from a cut on his left cheek. He was
out of breath as if he had been running. When he learned D. Soy had been in a fight,
John Khun soon left. John Khun feared retaliation from the three people that had jumped
D. Soy. D. Soy told him that a woman and two men had attacked him in an alley near his
mother’s home. D. Soy never told John Khun that night that he had stabbed someone.
John Khun did not remember seeing T. Soy that night.
       Long Beach Police Officer Scott Miller was one of the officers who responded to
the alley between 16th and 17th Streets on July 1, 2007. He spoke to both Ny and Tuoth.
Tuoth said he had been in the alley with Ny “the whole time,” and they had been drinking
together. When Officer Miller first saw Ny, Ny had blood on his shirt and hands and said
he had just seen his friend get stabbed. He said he did not want to implicate anyone. He
then said his friend had been stabbed, but he was not there when it happened. He also
said he did not know the full names of his friends. Tuoth did not appear to be upset.
Tuoth told Officer Miller that Ny was his best friend.



                                            10
Officer Miller handed Ny off to gang detectives at the scene only because the police were
busy and the detectives were assisting at the scene.
       Officer Jennifer Riordan spoke with Teng on the night of the stabbing. Teng told
her that she had been drinking with friends in the alley when a white sedan drove down
the alley. The occupants got out of the car and rushed her and her friends. Teng was hit
on the back of the head, fell to the ground, and lost consciousness. When she awoke, one
of the male friends was lying on the ground and bleeding. The other two males were
hovering over him and trying to wake him up. The white car was gone. Teng called 911.
Teng said that two male Asians got out of the white sedan. At first she told the officer
they were twins and then said she thought they just looked alike. She said one of them
looked familiar, and when asked why, she could not respond. Teng said she and her
friends were not gang members.
       Officer Riordan said that Detective Hodgson actually discovered the crime scene
and was there before Officer Riordan and Officer Trias. While she and Officer Trias
were on route, they used their keyboard to state they were “on scene,” but they had gone
to 17th and Alamitos Avenue first.
       Detective Udom Sawai was working gang detail at the time of the stabbing, and he
spoke with Ny at the scene. He decided to speak to Ny after another officer had done so
because, due to Ny’s “body language and the way he projected himself,” the detective
suspected Ny knew more about the crime than he had revealed. In the end, Ny did not
want to cooperate with the police. Detective Sawai was familiar with the Asian Boys
gang and the Suicidals gang. They are primarily Cambodian gangs. Detective Sawai
recalled that Ny had admitted being a gang member, but he did not recall which gang.
Detective Sawai saw a lot of graffiti in the alley, but he did not recall specifically what
type. The Suicidals and Asian Boys generally get along. Based on reports and
conversations with other officers, Detective Sawai believed that the Soy brothers were
members of the Suicidals gang.
       In response to a hypothetical presented by the prosecutor on cross-examination,
Detective Sawai stated that if one of two brothers got jumped or faced down in public, it

                                             11
was part of the mentality of the gang member to want to retaliate. It was also part of the
mentality to go and get reinforcements before engaging in retaliation.
       Detective Teryl Hubert was one of the detectives assigned to investigate the
murder. He determined that Tuoth was associated with the Asian Boys gang. He self-
admitted in 2010, but there were contacts in which Tuoth was with gang members as
early as July 2008. Teng also was associated with the Asian Boys gang as early as July
2007. Ny admitted to being an Asian Boys gang member in July 2007. There was no
indication that Ork was involved in any gang.
       Mary Blatz worked as the Catholic representative for the Cambodian community
in Long Beach from 1992 until 2009. She was involved in many projects in aid of the
community. She had known the defendants’ mother, Kelly San, since 1999. Blatz also
knew D. Soy and T. Soy and learned that they were wanted for murder. Blatz gave San
support and helped her look for legal advice. Blatz spoke several times with a former
deputy city attorney named Ken Byrd. Blatz talked with San and Ken Byrd about
whether the brothers should turn themselves in. The brothers “were trying to find the
conditions to turn themselves in.” They “were concerned about their safety from the
gang inside or outside the jail.”
       Detective Mendoza wrote a report regarding the former city attorney named
“Ken,” with whom he spoke in November 2008. Detective Mendoza was asked to
telephone Ken. The detective did not recall the conversation, but it involved the
defendants.
Rebuttal Evidence
       Teng identified the voice on the 911 call as her own. She told the operator she
thought someone had been shot because she saw bleeding and assumed Ork had been
shot. Another lady, a neighbor, got on the line also. Ny told Teng that Ork had been
stabbed. Right before she was knocked down, Tuoth, Ny and Ork were there. They were
there when the car pulled up. Out of the corner of her eye, she saw Tuoth “rumbling”
with someone.



                                            12
       Raymond MacDonald, the cell phone expert, testified that Kelly San was the
subscriber for cell phone number 562-787-6283. Her address was on 16th Street in Long
Beach, and her home telephone number was 562-599-2099. Two calls were made from
562-787-6283 to 714-209-3126 at 10:34:37 p.m. and 10:38 p.m. on July 1, 2007. These
calls bounced off the cell phone tower located closest to the stabbing, i.e., 1430 East
Anaheim Street. The calls were coming from San’s phone and going to T. Soy’s phone.
The cell phone with the number 714-209-3126 had no subscriber information because it
was a prepaid phone also known as a “throw phone.” It was marked in San’s phone as
belonging to “Vuthy.” Both of the calls were answered. “Answered” calls could also
include calls that went to voicemail, but on incoming calls, there would be no cell sites
listed for such calls.
       In April 2000, Detective Roger Zottneck asked T. Soy some booking questions
when he was arrested for a probation violation on a juvenile arrest. T. Soy said that he
was a member of the Suicidals gang.
       In September 2005, Officer Jesus Fragoso made a traffic stop on a car in which
D. Soy was a passenger. D. Soy was in possession of mace and did not have a card
authorizing him to possess it. When he was booked, D. Soy was found to possess
methamphetamine. The car’s driver was a documented Asian Boys gang member.
D. Soy said he was in the gang files as a Suicidals gang member but claimed he was not a
member. D. Soy said that the driver gave him the methamphetamine to hold because the
driver was on parole and did not want to get in trouble.
       Detective Mendoza stated that there was a large pool of blood in front of a car and
on the hood of a car in the alley. This is where Ork was stabbed. Detective Mendoza
searched for blood throughout the alley, on other cars, and in surrounding properties. He
also looked for blood on any objects in the area. The only blood found was in between
the two cars and on the hood of the car.




                                             13
                                        DISCUSSION
I. Denial of Motion to Release Juror Information (D. Soy Issue No. 1, T. Soy Issue
No. 6)
         A. Arguments
         D. Soy and T. Soy argue that the trial court abused its discretion in denying the
motion for disclosure of juror information and finding the motion to be premature,
requiring reversal and remand so that the trial court can reconsider the motion and allow
counsel a reasonable time to file a new motion for new trial.5 D. Soy contends the record
establishes good cause for the disclosure of juror information in the form of prosecutorial
misconduct. T. Soy contends his motion contained a sufficient factual basis to support a
reasonable belief that juror misconduct occurred.
         B. Relevant Authority
         Under Code of Civil Procedure section 237, all personal identification information
of jurors sitting on criminal cases must be sealed upon the recording of the jury’s verdict.
(Code Civ. Proc., § 237, subd. (a)(2).) A person wishing access to that information may
petition the court for release of the information and must support that petition with a
declaration that includes facts sufficient to establish good cause for its release. (Code
Civ. Proc., § 237, subd. (b).) The court must set the matter for hearing if the petition and
supporting declaration establish a prima facie showing of good cause for release of the
information, but it must not set the matter for hearing if there is a showing of facts that
establish a compelling interest against disclosure. (Ibid.) To demonstrate good cause, a
defendant must, among other things, file a petition that “sets forth a sufficient showing to
support a reasonable belief that jury misconduct occurred.” (People v. Rhodes (1989)
212 Cal.App.3d 541, 551-552; accord, People v. Jefflo (1998) 63 Cal.App.4th 1314,
1322–1323.) Furthermore, the misconduct alleged must be “‘of such a character as is


5       We refer to only T. Soy’s counsel in the discussion, since D. Soy’s counsel did not
file separate written motions or argue the motions. T. Soy filed the motions and D. Soy
joined.


                                              14
likely to have influenced the verdict improperly.’” ( Jefflo, at p. 1322.) A petition to
disclose juror identification information must be supported by more than mere
speculation and may not be used as a “‘fishing expedition[ ]’ by parties hoping to
uncover information to invalidate the jury’s verdict.” (Rhodes, at p. 552.)
       The trial court’s determination of whether to hold a hearing is reviewed for an
abuse of discretion. (People v. Jones (1998) 17 Cal.4th 279, 317; see also People v.
Castorena (1996) 47 Cal.App.4th 1051, 1065.)
       C. Proceedings Below6
       Teng’s 911 call was played for the jury, and the jury was provided with a
transcript. The prosecutor did not elicit evidence as to the time the 911 call was made,
and the time was not shown on the transcript or recording. Officer Rogelio Trias testified
that he and his partner, Officer Riordon, received a call about a shooting at 17th and
Alamitos Avenue at 10:44 p.m.7 Testimony from Detective Mendoza for the defense
revealed that the call was first routed to the fire department. T. Soy’s mother had the
number 714-209-3126 in her cell phone as belonging to “Vuthy.” Cell phone evidence
showed that there were several calls involving phone number 714-209-3126 on July 1,
2007—at 10:39, 10:40 and 10:42. Then there were calls at 10:44 and 10:50 p.m.
Considering the location of the towers, it appeared that T. Soy was traveling northbound.
The calls were being sent to his phone.
       The prosecutor asked during closing argument, “Who called [T. Soy] to the scene?
There is a phone call for the mom’s cell phone. Do we know if [D. Soy] placed the call?
. . . Do we know for sure whether [T. Soy] met him on the street, whether they picked a
location, whether [D. Soy] made it back to the house. . . ? Those are questions that might
be unanswered.” Defense counsel argued, inter alia, “the phone records the People
produced support my client” because they showed they were incoming calls, he identified


6      The facts related here are relevant to the first three issues in this opinion.
7      Teng at first reported to the 911 operator that her friend had been shot.


                                              15
Brown’s number, and Teng and Tuoth said everything happened “quickly.” On rebuttal,
the prosecutor asserted that it was “10:44 when the call is going out to the police.”
       During deliberations the jury sent several notes to the court, some of which dealt
with the evidence. The first note asked, “What do we do if there is a disagreement where
a juror does not believe any of the testimony and we cannot reach a verdict?” The second
note asked for T. Soy’s testimony pertaining to driving through the alley. The third note
asked for readback of Tuoth’s testimony. The fourth note asked for the legend to defense
exhibit “F” (a sketch of the crime scene). The jury also asked to see the transcript of the
911 call. The request was granted and the audio was played. Finally, the jury sent a note
saying, “We need help in arriving at a verdict, we are at a stalemate on making a
decision.”
       When the jurors were reconvened by the court, the foreperson stated that the jury
members had looked at the case from every angle and could not bring the two opposing
sides together. The court asked if there was any particular issue the lawyers could re-
argue briefly. After speaking to another juror, the foreperson asked if they could have the
lawyers talk through the time of death and the time the victim was stabbed. After further
discussion among themselves in the deliberation room, the jury returned and presented
five questions to be addressed by additional argument: whether Ork was pronounced
dead at the scene, the time Ork was stabbed, the time T. Soy drove through the alley,
what T. Soy saw in the alley, and what were the changes in Teng’s testimony over the
course of time, i.e., how had her story changed, if it had. The jury foreperson confirmed
that the questions applied equally to each defendant. Before the jury was dismissed for
the day, Juror No. 5 added that he would like an explanation of the time frame beginning
with the time D. Soy walked down to the alley, the stabbing, and on through what D. Soy
did immediately after the stabbing.
       In his supplemental argument, the prosecutor told the jury they had three things:
the cell phone records, the 911 call, and the police call history. The 911 recording started
before the police call. He stated that, “by listening to the content of the recording and
interfacing it with this (indicating), you can tell within seconds what time the recording

                                             16
started.” The prosecutor used the 911 call recording counter in conjunction with the
police call history to calculate when the 911 call went out. He arrived at the conclusion
that, “when you tie all this together, everything points to the recording starting before—
before 10:41, it’s 10:40 and 40 seconds—53 seconds, okay. Right around there. Why is
that important? It’s because now we’re going to pretend for a second that what these
defendants testified to is true.” The prosecutor asserted that “a lot of stuff happened”
before Teng got on the phone, and if T. Soy had driven through the alley he would have
seen it. T. Soy said he got a call from Brown and within 20 seconds he went around the
corner. The defense exhibit showed the call from Brown came in at 10:40:03. If
defendant had driven through the alley “he would have seen all of this stuff happening if
that were true.”
       The prosecutor stated, “This is the hard facts. You add it all up, you can tell on
the recording when these things happened. You can tell that recording starts before
10:41. He’s in the alley, according to his testimony, at the minute of 10:40. You can’t
reconcile that. There’s no way. . . . If you look at hard evidence, it’s all there. There is
no way that their stories are true.” In supplemental rebuttal, the prosecutor repeated,
“Things have to happen before 10:40:53 if you believe their story. Okay. The stabbing
has to have happened.” According to the prosecutor, the 911 came in at 10:40:53
because “add nine minutes and one second to that, that would be about the time that
police would be entering, fire is working on him now. Nine minutes and one second
added to 10:40:53 is 10:49 and 54 seconds.”
       The jury resumed deliberations and returned verdicts of guilt of second degree
murder approximately one hour and 20 minutes later. On October 20, 2011, T. Soy’s
counsel filed a motion requesting a continuance of the sentencing hearing pending
determination of his new trial motion. He also filed a motion for an order releasing
jurors’ identifying information. Counsel argued the prosecutor committed misconduct
because he argued facts not in evidence and contrary to the evidence produced at trial
when he told the jury that the 911 call was made at 10:40:53. In his declaration, T. Soy’s
counsel stated that after the verdicts were read, he spoke to three jurors who said the

                                             17
prosecutor’s supplemental closing argument about the timing of the 911 call was the
basis for breaking the impasse in the deliberations. Counsel stated he later spoke to the
jury foreman, who said the jury members found both alleged eyewitnesses (Teng and
Tuoth) unreliable and they “did not believe anything they said.” The prosecutor filed an
opposition on December 5, 2011. The prosecutor argued the defense motion did not
establish good cause because it did not make a preliminary showing of potential jury
misconduct, and the evidence sought would be wholly inadmissible, since it sought
evidence of the jurors’ subjective mental processes.
       At the February 3, 2012 hearing on the motion, the court began by saying the
motion was premature. Moreover, nothing had been provided to the court that mandated
that juror information be released under Evidence Code section 1150.8 Defense counsel
for T. Soy explained that the incorrect timeline in the prosecutor’s supplemental
argument introduced something that was never introduced into evidence at trial and was
misleading. Counsel stated he expected the prosecution to argue that the supplemental
argument to the jury during deliberations was immaterial or not prejudicial within the
context of the whole trial. To counter that, counsel would need testimony from the jurors
attesting to the importance of the prosecutor’s timeline. He believed he was entitled to
talk to the jurors to ascertain whether the timeline was “something that ended up tipping
the scales, so that it went from being a deadlocked jury to coming in very quickly with
guilty verdicts.”
       After hearing from the prosecutor, who reiterated the arguments in his
December 5, 2011 opposition, the court stated, “I think that predicated upon what


8       Evidence Code section 1150 provides: (a) Upon an inquiry as to the validity of a
verdict, any otherwise admissible evidence may be received as to statements made, or
conduct, conditions, or events occurring, either within or without the jury room, of such a
character as is likely to have influenced the verdict improperly. No evidence is
admissible to show the effect of such statement, conduct, condition, or event upon a juror
either in influencing him to assent to or dissent from the verdict or concerning the mental
processes by which it was determined. [¶] (b) Nothing in this code affects the law
relating to the competence of a juror to give evidence to impeach or support a verdict.”


                                            18
happens at the motion for new trial, that may open up the door as far as 1150 is
concerned. But I think at this point this particular motion is premature.” The court added
the “issue of the timing and whatever and the supplemental argument is going to be
critical and I think that’s the issue that has to be analyzed. . . . Then depending upon
what is show up there then we may very well get into this very issue.” The court stated it
would neither grant nor deny the motion, but simply take it off calendar with defense
counsel’s permission. Counsel replied, “Okay.”
       The matter was continued several times due to counsel’s serious health issues and
other matters. The new trial motion was heard on November 14, 2013.9 Counsel for
T. Soy again argued that the prosecutor’s mistake about the timing of the 911 call was
misleading and caused the jury not to believe anything T. Soy said, including his
statements about the gun and what he saw or did not see in the alleyway.10 The court
asked counsel to explain what the difference of two minutes or slightly less than two
minutes could have had on the jury’s decision. Counsel replied that the timing was very
important because if the 911 call happened earlier, as the prosecutor stated, and T. Soy
was driving through the alley, the other people would have been there. Counsel stated
that was why the defense asked for permission to contact the jurors—to find out what
occurred. He believed it made a difference in their thinking, based on what they told
him.
       In his response, the prosecutor stated that the issue of the time of the call was an
argument that he engaged in prosecutorial misconduct. Because counsel repeatedly
emphasized it was an isolated mistake on the part of the prosecutor, it could not be


9      The trial court requested argument on the three issues in counsel’s written new
trial motion: sufficiency of the evidence, ineffective assistance of counsel, and
prosecutorial misconduct. We discuss only the latter issue in this portion of the opinion,
since that is the issue related to counsel’s request for disclosure of juror information.
10    In the interim, the parties had obtained the fire department’s incident report, which
showed that the alarm came in at 22:43 on July 1, 2007, and not 10:40:53, as the
prosecutor had argued.


                                             19
prosecutorial misconduct, which requires deceptive or reprehensible methods or a pattern
of egregious conduct. Moreover, defense counsel did not object, and the court repeatedly
told the jury that the arguments of the attorneys were not evidence. Furthermore, the
issue was a difference of about two minutes and seven seconds, and the testimony
showed that would not have made a difference with respect to evaluating the truth of
T. Soy’s testimony about his passage through the alley in search of his brother. Also,
absent reports of juror misconduct, rather than explanations of how they analyzed the
evidence, it was not proper to elicit statements from the jurors after the fact. The
prosecutor stated that he had “talked to the so-called hold-out juror . . . and [ ] was
surprised to find that [the juror] said that this argument about the timing didn’t matter to
him much.” But, the prosecutor added, it did not matter what the jury’s thought process
was, since “we can’t get into that.”
       The court stated the defendants could not prevail on the new trial motions with
respect to the issue of the prosecutor’s allegedly incorrect argument because the argument
did not constitute prosecutorial misconduct. It was merely a mistake, and there was no
objection.
       Sentencing occurred on January 10, 2014. T. Soy’s counsel reminded the court of
his argument at the new trial motion hearing that the prosecutor’s supplemental argument
about the timing was persuasive, although “we don’t know.”
       D. Analysis
       It is clear from the record that the trial court made no final ruling per se on the
motion for disclosure of juror information. Nevertheless, when the trial court found no
prosecutorial misconduct (the basis for the disclosure motion) during the hearing on the
new trial motion, the court foreclosed the defense from pursuing the disclosure motion
and impliedly denied the motion. We conclude the trial court did not abuse its discretion
in denying the defense request for juror contact information, since there was no showing
of good cause to release the information, and the information sought was in violation of
Evidence Code section 1150.



                                              20
       As noted ante, a defendant demonstrates good cause by a “sufficient showing to
support a reasonable belief that jury misconduct occurred.” (People v. Rhodes, supra,
212 Cal.App.3d at p. 552.) Here, there was no such showing. T. Soy’s counsel asserted
in his declaration that several jurors told him the supplemental timeline argument was the
basis for breaking the deadlock. Although not contained in a sworn declaration, the
assertion of the prosecutor, an officer of the court, that the supplemental timeline
argument was not the basis for changing the mind of the “so-called holdout juror” must
also be taken into account.11 The thrust of the defense argument for disclosure thus
required revelation of the deliberative process in the minds of the jurors, which calls for
prohibited inquiry.
       Evidence Code section 1150 allows consideration of evidence as to statements
made, or conduct, conditions, or events occurring that might have improperly influenced
the verdict. In this case, we know the nature of the “statements made” that allegedly
improperly influenced the verdict, since the claim is that it was the prosecutor’s
argument, or, more precisely, the repetition of it in the jury room. The defense was
clearly seeking “the effect of such statement . . . upon a juror either in influencing him to
assent to or dissent from the verdict or concerning the mental processes by which it was
determined.” (Evid. Code, § 1150, subd. (a).) Evidence Code section 1150 prohibits
such an inquiry. It was mere speculation that there might be some tangible evidence of
misconduct that would be discovered were the defendants permitted to engage in a
“‘fishing expedition.’” (People v. Rhodes, supra, 212 Cal.App.3d at p. 552.) T. Soy’s
counsel actually stated that the defense asked for permission to contact the jurors to find
out what had occurred that “made a difference in their thinking,” a clear reference to the
subjective thought processes of the jurors.




11      The jury foreman never gave the court a breakdown of the split among the jurors.
In his first note, however, he referred to “a” juror [who] does not believe any of the
testimony.


                                              21
       We note that D. Soy also faults the trial court for finding the initial motion was
premature. Although Code of Civil Procedure section 206, subdivision (g) allows
disclosure of the information as “necessary for the [defense] to communicate with jurors
for the purpose of developing a motion for new trial or any other lawful purpose,” the
key word is “necessary.” As the record shows, the trial court was not convinced that,
even if the prosecutor’s timeline was incorrect, it could have had any bearing on a
reasonable juror’s verdict. The error was a gap of two minutes and seven seconds, and
the evidence did not show the alley was unoccupied at any time after T. Soy would have
learned that D. Soy was in trouble. Clearly, Teng was injured and was nearby when Dara
Ork was stabbed—this did not tie in with D. Soy’s testimony, regardless of the small
discrepancy in timing. Moreover, T. Soy’s counsel, who argued the motion, acquiesced
in the court’s statement that the motion was premature and in taking it off calendar.
       T. Soy argues that the juror misconduct consists of the jurors using the
prosecutor’s argument as evidence despite the trial court’s admonitions not to do so.
Once again, there is no showing any members of the jury regarded the argument as
evidence merely because the jurors reached a unanimous verdict within approximately an
hour and 20 minutes of hearing argument by the prosecutor and the two defense
attorneys. In this case, the trial court repeatedly instructed the jurors that the attorneys’
arguments were not evidence. (CALJIC No. 1.02.) “The crucial assumption underlying
our constitutional system of trial by jury is that jurors generally understand and faithfully
follow instructions.” (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) Furthermore,
other portions of the prosecutor’s argument, or even the defense argument, may have
aided the jury in the task of ascertaining the truth. The prosecutor also argued in his
supplemental argument that the jury should consider that although Teng told different
stories, her evidence at trial was very similar to what she told the police that night. The
prosecutor reminded the jury to consider Tuoth’s evidence as well. He urged the jury to
focus on what the two available witnesses told the police on the night of the stabbing and
not to disbelieve all of Teng’s testimony merely because she lied at some point. He
reminded the jury that Officer Riordan reported from the scene the information she

                                              22
received that “three male Asians approached in white Acura, possible physical
altercation. And then out to 17th unknown direction.”
       Given the measures taken by the trial court and the lack of any showing by
defense counsel that jury misconduct occurred, we find no abuse of discretion.
II. Alleged Prosecutorial Misconduct and Denial of New Trial Motion Based on
Prosecutorial Misconduct (D. Soy Issue No. 2; T. Soy Issue Nos. 2, 3, and 5)
       A. Argument
       D. Soy argues that the trial court erred in finding no prosecutorial misconduct and
denying the new trial motion. The prosecutor committed misconduct by arguing that the
911 call was received around 10:40 p.m. because there was no evidence adduced at trial
to establish the time of the call. The prosecutor’s use of facts that were neither true nor in
evidence was highly prejudicial and infringed upon defendants’ rights to due process, a
fair trial, and a fair determination of penalty.
       According to T. Soy, the trial court should have granted the new trial motion on
the ground of ineffective assistance of counsel as well as that of prosecutorial
misconduct. He contends his trial counsel was prejudicially ineffective for failing to
object when the prosecutor argued facts not introduced in evidence and failing to request
a jury admonition. T. Soy adds that the prosecutor’s misconduct was willful because the
prosecutor knew the 911 call did not come in at 10:40 p.m.
       B. Relevant Authority
       Under state law, a prosecutor commits misconduct when he or she uses
“‘“‘deceptive or reprehensible methods to attempt to persuade either the court or the
jury.’”’ [Citations.]” (People v. Earp (1999) 20 Cal.4th 826, 858; accord, People v.
Wallace (2008) 44 Cal.4th 1032, 1070.) “‘A defendant’s conviction will not be reversed
for prosecutorial misconduct’ that violates state law . . . ‘unless it is reasonably probable
that a result more favorable to the defendant would have been reached without the
misconduct.’ [Citation.]” (Wallace, at p. 1071.) In order for a violation of the federal
Constitution to occur, a prosecutor’s intemperate behavior must be egregious and infect



                                               23
the trial with a degree of unfairness that renders the subsequent conviction a denial of due
process. (Id. at p. 1070.)
        “‘“[T]he prosecution has broad discretion to state its views as to what the evidence
shows and what inferences may be drawn therefrom.”’ [Citation.]” (People v. Welch
(1999) 20 Cal.4th 701, 752.) “To prevail on a claim of prosecutorial misconduct based
on remarks to the jury, the defendant must show a reasonable likelihood the jury
understood or applied the complained-of comments in an improper or erroneous manner.
[Citations.] In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the
most damaging rather than the least damaging meaning from the prosecutor’s
statements.” (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on another ground
in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
        The prejudicial misconduct of the district attorney before a jury is one of nine
grounds for the granting of a new trial. (§ 1181, subd. 5.) The denial of a motion for new
trial is reviewed for abuse of discretion. (People v. Staten (2000) 24 Cal.4th 434, 466.)
“A trial judge is in a better position than is an appellate court to determine the probable
effect of misconduct of [the prosecutor] and his conclusion on that question will not be
disturbed by an appellate court unless in the circumstances it is plainly wrong.
[Citation.]” (People v. Sarazzawski (1945) 27 Cal.2d 7, 15, disapproved on another point
in People v. Braxton (2004) 34 Cal.4th 798, 817.)
        C. Analysis
        It is true that defense counsel failed to object to the prosecutor’s argument
regarding the time of the 911 call. Since T. Soy also argues that this failure constituted
ineffective assistance of counsel, we consider the issue on its merits.
        In addressing a claim that a prosecutor has misstated or mischaracterized evidence,
the California Supreme Court explained: “While counsel is accorded ‘great latitude at
argument to urge whatever conclusions counsel believes can properly be drawn from the
evidence [citation],’ counsel may not assume or state facts not in evidence [citation] or
mischaracterize the evidence [citation].” (People v. Valdez (2004) 32 Cal.4th 73, 133–
134.)

                                              24
       In the instant case, we believe the prosecutor’s argument did not consist of
evidence of matters outside the record or a mischaracterization of the evidence, but rather
permissible, although apparently incorrect, inferences from police evidence of the 911
call and the running time of the 911 recording shown on the tape counter. It was for the
jury to determine the reasonableness of the prosecutor’s proposed interpretation of the
evidence. (See People v. Farmer (1989) 47 Cal.3d 888, 923, overruled on another ground
in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6; accord, People v. Smith (2003) 30
Cal.4th 581, 617 [whether inferences prosecutor draws are reasonable is for jury to
decide].) The prosecutor’s use of the phrases, “hard pieces of evidence,” “hard facts,”
and “hard evidence” does not undermine this conclusion. The prosecutor was clearly
stating his own opinion of what his analysis of the tangible pieces of evidence showed,
and the use of such phrases is typical of the kind of “vigorous” comment on the evidence
that is acceptable in closing arguments. (People v. Hill (1998) 17 Cal.4th 800, 819;
accord, People v. Thomas (1992) 2 Cal.4th 489, 526 [“‘[T]he prosecutor has a wide-
ranging right to discuss the case in closing argument’” and “‘to fully state his views as to
what the evidence shows and to urge whatever conclusions he deems proper’”].) As long
as it is based on the record and made in good faith, “counsel have a right to present to the
jury their views on the deductions or inferences that the facts warrant. Their reasoning
may be faulty, but this is a matter for the jury to decide. [Citation.]” (Farmer, at p. 923.)
We disagree with T. Soy that the prosecutor argued in bad faith, since the record plainly
shows he was convinced his analysis was correct. Finally, there was no danger the jury
was led to believe that the prosecutor was aware of facts that had not been disclosed to
the jury, since the prosecutor clearly explained his calculations step by step as he played
the recording.
       Moreover, as we have observed, the trial court instructed the jurors with CALJIC
No. 1.02, which informed them, inter alia, that statements made by the attorneys during
trial are not evidence. The court also instructed the jurors that it must determine what
facts were proved from the evidence at trial and not from any other source. (CALJIC No.



                                             25
1.00.) We presume the jury followed the court’s instructions in this regard. (See People
v. Valdez, supra, 32 Cal.4th at p. 114, fn. 14.)
       Accordingly, because there is no reasonable basis to conclude the prosecutor’s
argument improperly influenced the jury’s ultimate verdict, defendants have not
established that the trial court’s finding of no prosecutorial misconduct and its denial of
the new trial motion constituted either an abuse of discretion or a denial of defendants’
constitutional rights. We conclude that the prosecutor’s time calculations were not a
deceptive or reprehensible method nor did they constitute egregiously intemperate
conduct so as to render the trial fundamentally unfair. (See People v. Bordelon (2008)
162 Cal.App.4th 1311, 1323–1324.)
       Despite defense counsel’s act of falling on his sword and including ineffective
assistance of counsel as a ground for the new trial motion, a defense counsel’s decision
whether to object in argument to statements by the prosecutor is inherently tactical and
“the failure to object will rarely establish ineffective assistance.” (People v. Maury
(2003) 30 Cal.4th 342, 419; People v. Riel (2000) 22 Cal.4th 1153, 1197.) Since we have
concluded the prosecutor’s argument was not improper and there was no misconduct,
trial counsel was not guilty of an omission, and counsel was not ineffective. The
inferences argued by the prosecutor were drawn from the evidence, and any objection or
request for admonishment would not have been meritorious. (See People v. Price (1991)
1 Cal.4th 324, 387.) Moreover, T. Soy cannot establish the reasonable probability he
would have realized a more favorable outcome had his attorney objected to the
prosecutor’s analysis of the timeline. (Strickland v. Washington (1984) 466 U.S. 668,
693–694.) The trial court’s instruction concerning statements of counsel minimized any
prejudice.
III. Curtailment of T. Soy’s Supplemental Closing Argument
       A. T. Soy’s Argument
       T. Soy argues that his trial counsel deserved to have the same amount of time as
the prosecutor (20 minutes) to present his case at supplemental argument. He contends
the trial court erred in denying the defense request for the same amount of time.

                                              26
       B. Relevant Authority
       “A criminal defendant has a well-established constitutional right to have counsel
present closing argument to the trier of fact. [Citations.] This right is not unbounded,
however; the trial court retains discretion to impose reasonable time limits and to ensure
that argument does not stray unduly from the mark. [Citation.]” (People v. Marshall
(1996) 13 Cal.4th 799, 854–855; see also People v. Benavides (2005) 35 Cal.4th 69, 110.)
Section 1044 gives the trial court discretion to set reasonable time limits on argument.12
We uphold a trial court’s determinations under section 1044 unless the court patently
abused its discretion. (People v. Calderon (1994) 9 Cal.4th 69, 79; People v. Cline
(1998) 60 Cal.App.4th 1327, 1334.) But even if the court did abuse its discretion, the
defendant must still show prejudice to win reversal. (Cal. Const., art. VI, § 13; Calderon,
at p. 80.)
       C. Proceedings Below
       After the jurors departed to discuss and specify their issues, the trial court told the
parties it would give “each side, not each individual, but each side a certain amount of
time to argue” the issues. The court asked the lawyers how much time they needed to
argue and indicated that half an hour would be too much. The court settled on 20 minutes
for each side. T. Soy’s counsel argued that he and D. Soy’s counsel should each have the
same amount of time as the prosecutor rather than having to divide the 20 minutes
between them. The court replied, “I’m not going to do that.”
       The prosecutor argued for 10 minutes. T. Soy’s counsel argued for approximately
15 minutes, leaving D. Soy’s counsel with five minutes. The court stated that D. Soy’s
counsel could have a little more time if needed, with the understanding that the
prosecutor would get the same amount of extra time. He apparently used two more
minutes, and the prosecutor was given 12 minutes for rebuttal.


12      Section 1044 provides: “It shall be the duty of the judge to control all proceedings
during the trial, and to limit the introduction of evidence and the argument of counsel to
relevant and material matters, with a view to the expeditious and effective ascertainment
of the truth regarding the matters involved.”

                                              27
       D. Analysis
       T. Soy’s claim fails because the trial court’s limitation was reasonable under the
circumstances. T. Soy argues that in this case, his counsel had to help the jury form
answers to its questions by going through the evidence in detail. T. Soy claims his
counsel needed more than 10 minutes to explain the “conflict in testimony of witnesses at
the preliminary examination and . . . at the present trial, and the alleged self-impeachment
of important witnesses for the prosecution . . . .”
       The cases defendant cites regarding time limitations on argument are
distinguishable, the most obvious difference being that in the instant case we are
concerned with supplemental argument, not with the standard closing argument. As the
cases indicate, however, we must determine whether defense counsel was unreasonably
hindered to the degree that defendants were deprived of a full and fair defense. (People
Keenan (1859) 13 Cal. 581, 584-585.)
       The record indicates the trial court acted within its broad discretion in setting a
reasonable time limit for the arguments for each side. The supplemental closing
arguments were defined by the jury’s questions. Therefore, all of the evidence,
testimony, exhibits, and charges did not have to be addressed. T. Soy’s counsel actually
argued for 15 minutes, and D. Soy’s counsel for seven minutes, each for their own
purposes. The prosecutor was obliged to address the evidence with respect to both
defendants in 22 minutes total. T. Soy does not argue that 10 minutes was inadequate,
but only that the prosecutor got two bites of the apple. However, it is well established
that the prosecutor has the right to rebut the defense argument. In this case, there were
two arguments to rebut.
       Section 1093, subdivision (e) provides for closing arguments by counsel for the
prosecution and the defendant, and specifies that the prosecution has “the right to close.”
Section 1093’s provision granting the People the right to conclude the argument is
grounded in the constitutional requirement that the prosecution bears the heavier burden
of proof in that it must prove guilt beyond a reasonable doubt. (In re Winship (1970) 397
U.S. 358, 361–364.) “The prosecutor’s burden of proving guilt beyond a reasonable

                                              28
doubt at the trial on the issue of guilt justifies his closing the argument as well as opening
it.” (People v. Bandhauer (1967) 66 Cal.2d 524, 530-531.) Here, the prosecution’s
closing argument and rebuttal were contained in approximately 12.5 pages of the
reporter’s transcripts. The defense arguments together took up approximately 17 pages
of reporter’s transcript. A review of the defense closing argument indicates counsel
thoroughly addressed Teng’s credibility and the prosecutor’s attempt “to extrapolate the
information that he believes is in here to say when the call was made.” He stated, inter
alia, that “[e]verybody else has put the time that the call is coming in as 10:44.” He went
on to explain his interpretation of the recording. There is no reason to believe any longer
argument would have resulted in different verdicts.
       Finally, there has been no showing of prejudice. Defendant has not explained
what he would have argued or how additional argument would have made a significant
difference to his defense. T. Soy does not point to any aspect of the evidence he was
unable to discuss. It must not be forgotten that defendant was convicted of second degree
rather than first degree murder. Therefore, any error was harmless under any standard.
(Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818,
836.) Defendant has failed to demonstrate that the court’s imposition of a reasonable
time limit on his supplemental closing argument constituted an abuse of discretion, let
alone that its limitation constituted a deprivation of state and federal constitutional rights.
IV. Sufficiency of the Evidence to Support T. Soy’s Conviction and the True
Finding on the Firearm-Use Enhancement (T. Soy Issue Nos. 1 and 7)
       A. T. Soy’s Argument
       T. Soy contends there was at most a scintilla of evidence he drove the car from
which D. Soy allegedly exited before stabbing Ork, and there was no solid evidence he
pointed a gun at Sean Ny and aided and abetted in the assault. He contends that even if
there was sufficient evidence from which a jury could have found he drove D. Soy to the
scene, his mere presence was not enough to convict him as an aider and abettor.




                                              29
       B. Relevant Authority
       “‘To determine the sufficiency of the evidence to support a conviction, an
appellate court reviews the entire record in the light most favorable to the prosecution to
determine whether it contains evidence that is reasonable, credible, and of solid value,
from which a rational trier of fact could find the defendant guilty beyond a reasonable
doubt.’” (People v. Bolden (2002) 29 Cal.4th 515, 553.) The reviewing court must draw
all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th
610, 640.) Reversal is not warranted unless it appears that “‘upon no hypothesis
whatever is there sufficient substantial evidence to support [the conviction].’” (People v.
Bolin (1998) 18 Cal.4th 297, 331.)
       “All persons concerned in the commission of a crime, whether it be felony or
misdemeanor, and whether they directly commit the act constituting the offense, or aid
and abet in its commission . . . are principals in any crime so committed.” (§ 31.) “A
person is liable as an aider and abettor when (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, that person (3) by act or advice aids, promotes,
encourages or instigates, the commission of the crime.” (People v. Gibson (2001) 90
Cal.App.4th 371, 386.)
       The test of whether a person aided or abetted in the commission of an offense is
“whether the accused in any way, directly or indirectly, aided the perpetrator by acts or
encouraged him by words or gestures.” (People v. Villa (1957) 156 Cal.App.2d 128,
134.) It is not necessary that the primary actor expressly communicates his criminal
purpose to the defendant, as that purpose may be apparent from the circumstances.
(People v. Nguyen (1993) 21 Cal.App.4th 518, 531–532.) In fact, aiding and abetting can
be committed “‘on the spur of the moment,’” that is, as instantaneously as the criminal
act itself. (Id. at p. 532.)
       An aider and abettor is guilty not only of an offense he intended to facilitate or
encourage, but also of any reasonably foreseeable offense committed by the person he
aids and abets. (People v. Hickles (1997) 56 Cal.App.4th 1183, 1194; see also People v.

                                             30
Prettyman (1996) 14 Cal.4th 248, 289-290.) An aider and abettor is guilty of all offenses
that are the natural and probable consequence of the target offense. In determining
whether the nonintended crime is the natural and probable consequences of the intended
crime, we do not consider whether the aider and abettor actually foresaw the additional
crime, but whether, judged objectively, it was reasonably foreseeable. (People v.
Prettyman, at pp. 261–262.)
       Factors that may be taken into account when determining whether a defendant was
an aider and abettor are presence at the crime scene and companionship and conduct
before and after the offense, including flight. (In re Juan G. (2003) 112 Cal.App.4th 1,
5.) Mere presence at the scene of a crime, knowledge of the perpetrator’s criminal
purpose, or the failure to prevent the crime do not alone amount to aiding and abetting,
although these factors may be taken into account in determining criminal responsibility.
(People v. Garcia (2008) 168 Cal.App.4th 261, 272–273; People v. Nguyen, supra, 21
Cal.App.4th at pp. 529–530.) “‘Whether defendant aided and abetted the crime is a
question of fact, and on appeal all conflicts in the evidence and reasonable inferences
must be resolved in favor of the judgment.’ [Citation.]” (People v. Campbell (1994) 25
Cal.App.4th 402, 409.)
       C. Analysis
       We believe sufficient evidence supports the jury’s verdict and true finding. Tuoth
testified that D. Soy came into the alley on foot from 17th Street that night, and Teng
punched him. Tuoth, Dara Ork, and Sean Ny followed Teng down the alley toward 16th
Street as she attempted to strike D. Soy again. They all went to 16th Street, turned left,
and were almost at Alamitos Avenue. This was the only time the alley was briefly
deserted, which called into question T. Soy’s claim that he drove through the alley and
saw no one after Brown told him his brother had been jumped and had “just left.” So
T. Soy would not have been looking for him. Tuoth brought Teng back to the alley and
to where they had all been drinking. Afterwards (two minutes later), Ny and Ork came
back also and said they had fought with D. Soy. Approximately 10 minutes after that,
Tuoth saw a white, two-door car come through from the direction of 16th Street. T. Soy

                                             31
confirmed he was driving his two-door white Acura RSX that night. The car parked next
to Teng’s car, at which point D. Soy, T. Soy and another person jumped out, according to
Tuoth. D. Soy knocked Teng down and then went to Ork. T. Soy was identified as the
driver of the car. Tuoth testified that T. Soy pointed a gun at Sean Ny. It was established
that T. Soy possessed a gun that he was allowed to carry for his job as a security guard.
Tuoth went to help Teng while D. Soy was “fighting” with Ork. D. Soy then ran back to
the car, and all three men drove away toward 17th Street. When Tuoth ran to help Ork
get up, he realized he was wet with blood.
       Teng also said she was “rumbling” with D. Soy and that she, Tuoth, Ny, and Ork
went to the end of the alley on 16th Street. Then she and Tuoth went back to the same
spot where they had been standing. Shortly thereafter, Ny and Ork returned, seemingly
out of breath. Ork said D. Soy was going to come back and bring a weapon. A white car
pulled up about 20 minutes later. T. Soy was driving, and D. Soy and T. Soy got out.
After being hit and knocked down by one of them, Teng ran behind her car and then saw
Ork on the ground.
       It is true that the eyewitnesses were not consistent. It was revealed that Tuoth did
not tell police about the gun. He did not mention it until he testified the first time. He
also told Detective Mendoza the driver did not exit the car. The record shows that at trial
Teng recanted her preliminary hearing testimony that she saw T. Soy hold a gun to
someone. Teng admitted she did not see that, but Ny told her that was what happened.
She lied to the district attorney and police when she said she saw “stabbing motions.” At
one point, she also testified to seeing the stabbing. Teng admitted she did not tell police
at first that she knew who committed the crime. Teng did tell Officer Riordan at the
scene, however, that the attackers were male Asians, and she thought they were twins,
although she was reticent about how she knew them. She merely said she thought she
knew one of them. She testified that she did not tell the truth at first because she was
afraid. She said the driver hit her, and she acknowledged she was not sure who was
driving. Ny told her it was T. Soy. She also admitted she did not tell police at first about
her punching D. Soy.

                                             32
       The existence of conflicting evidence does not warrant a reversal of the
convictions. “Conflicts and even testimony which is subject to justifiable suspicion do
not justify the reversal of a judgment, for it is the exclusive province of the trial judge or
jury to determine the credibility of a witness and the truth or falsity of the facts upon
which a determination depends.” (People v. Maury ( 2003) 30 Cal.4th 342, 403.) A
reviewing court may not substitute its evaluation of a witness’s credibility for that of the
fact finder. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
       In addition to the eyewitness testimony, the gang testimony of Detective Sawai
informed the jury that both of the Soy brothers were members of the Suicidals gang. He
stated in answer to a hypothetical question that if one of two brothers were jumped, the
victim would likely seek retaliation and would look for reinforcements. Also, the cell
phone records showed that someone telephoned T. Soy using Kelly San’s cell phone five
to 10 minutes before the 911 call was made. D. Soy testified that after his fight with Ork
and Ny he went to his mother’s home. Davy Soy testified that he placed two calls from
the Orange Avenue residence to T. Soy to tell him that D. Soy was in trouble, as he had
been informed by Kelly San during a call at approximately 10:30 p.m. Another witness,
Ban Khun, corroborated Davy Soy’s testimony. Those calls to and from the Orange
Avenue residence occurred minutes before Teng’s 911 call at approximately 10:43 p.m.
A reasonable jury could have inferred from the cell phone evidence that T. Soy and
D. Soy were in contact and coordinating their actions.
       With respect to the firearm enhancement, the jury heard Teng testify that Ny told
her T. Soy pointed a gun at him, that she did not see it herself, and that she falsely
testified that she did at the preliminary hearing. The jury also heard Tuoth’s testimony
that he saw T. Soy point the gun. The jury was instructed that “[t]estimony concerning
any fact by one witness, which you believe, is sufficient for the proof of that fact. You
should carefully review all the evidence upon which the proof of that fact depends.”
(CALJIC No. 2.27.) The jury clearly believed Tuoth’s testimony. The jury could draw
the reasonable inference that T. Soy used the gun to deter Ny or anyone else from
interfering with D. Soy’s attack on Ork, thus acting as an aider and abettor. After D. Soy

                                              33
finished his attack on Ork, T. Soy drove himself and D. Soy away from the scene. A
reasonable jury could conclude this flight was part of a joint purpose and facilitated the
murder.
         As the jury was instructed, presence at the crime, companionship, and conduct
before and after the crime may all be considered in deciding whether or not an individual
is an aider and abettor. (CALJIC No. 3.01.) Flight may also be considered as conduct
after the crime. (In re Juan G., supra, 112 Cal.App.4th at p. 5.) And although not
determinative, knowledge of the perpetrator’s criminal purpose and failure to prevent the
crime may be taken into account. (People v. Garcia, supra, 168 Cal.App.4th at pp. 272-
273.) Considering these factors, the record here clearly supports the conclusion that
T. Soy intended to aid and abet D. Soy’s actions. And even if the intended crime was
only an assault with a deadly weapon, the jury was also instructed on aiding and abetting
within the theory of natural and probable consequences. (CALJIC No. 3.02.)
Accordingly, we decline to reweigh the evidence and reevaluate the credibility of the
witnesses in this case. (People v. Albillar (2010) 51 Cal.4th 47, 60.) We conclude there
was sufficient evidence to support the finding that T. Soy aided and abetted D. Soy’s
crime.
V. Cumulative Error.
         T. Soy argues that, given the lack of credible eyewitness testimony, the absence of
physical evidence tying him to the killing, and the jury’s reports of stalemate, the
outcome of the trial would have been different for him if the trial court had foreclosed the
prosecutor from arguing facts that were never in evidence. Therefore, if this court does
not reverse for any of the grounds asserted in his brief, reversal is required because the
cumulative effect of the errors violated his right to due process under the Fourteenth
Amendment to the federal Constitution, and the violation was prejudicial.
         There can be no cumulative error if each assignment of error fails. We have
rejected each of defendant’s assignments of error and further found that defendant
suffered no prejudice in any event. Moreover, in examining a claim of cumulative error,
the critical question is whether the defendant received a fair trial. (People v. Cain (1995)

                                              34
10 Cal.4th 1, 82.) As the California Supreme Court has long held, “[a] [d]efendant [is]
entitled to a fair trial but not a perfect one.” (People v. Cunningham (2001) 25 Cal.4th
926, 1009; People v. Mincey (1992) 2 Cal.4th 408, 454.) Our review of the record
assures us that defendants received due process and a fundamentally fair trial.
                                     DISPOSITION
       The judgments are affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                          BOREN, P.J.
We concur:


       CHAVEZ, J.


       HOFFSTADT, J.




                                            35
