Filed 4/25/13 P. v. Khek CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H036185
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC779763)

         v.

KOSAL KIM KHEK et al.,

         Defendants and Appellants.


         A jury convicted defendants Kosal Kim Khek and Christopher Lee of first degree
murder and found true criminal-street-gang allegations and, as to Khek, a personal-use-
of-deadly-weapon allegation, for purposes of sentence enhancements.1 The trial court
sentenced Khek to 26 years to life and Lee to 32 years to life. On appeal, defendants
contend that (1) the trial court erred by denying their motions to suppress evidence seized
from their homes without a warrant, (2) the trial court abused its discretion by admitting a
gruesome photograph of the murder victim, (3) the trial court abused its discretion by
excluding from evidence Robert DeJong‟s police statements to the effect that the
perpetrators intended only to hurt or injure the victim,2 (4) the trial court erred by denying

         1
         Lee also pleaded guilty to assault with a firearm (and admitted personal-use-of-
firearm and infliction-of-great-bodily-injury allegations) and willful discharge of a
firearm from a vehicle at a person not the occupant (and admitted an infliction-of-great-
bodily-injury allegation).
       2
         DeJong had been a codefendant in this case, but had pleaded guilty to second
degree murder before trial.
their motions for mistrial grounded on jury misconduct, and (5) the abstract of judgment
erroneously fails to denote that the imposed restitution fines are joint and several. Khek
additionally contends that the trial court erred by admitting into evidence DeJong‟s police
statements to the effect that DeJong drove to the murder scene. Lee additionally
contends that the trial court erred by (1) instructing the jury in the language of
CALCRIM No. 400 (aider and abettor is equally guilty with perpetrator), and (2) failing
to instruct the jury sua sponte on the lesser included offenses of voluntary and
involuntary manslaughter. We agree that Khek‟s abstract does not conform to the
judgment. But we otherwise disagree with defendants. We therefore affirm the judgment
and modify Khek‟s abstract to conform to the judgment.
                                       BACKGROUND
       Viet Society (VS) and Strictly Family (SF) are rival criminal street gangs in San
Jose. Defendants are VS members.
       On August 29, 2007, SF gang members drove to and stopped at the Magic Sands
Mobile Home Park where several of defendants‟ friends were sitting on the grass near a
swimming pool. One of the friends, Tuan Nguyen, began arguing with a passenger in the
SF car, and the passenger pulled out a gun and shot Nguyen three times. Another of the
friends recognized the shooter and identified him to the police. Another friend described
the car and a partial license plate number to the police. The police arrested the shooter
and owner of the car for attempted murder.
       When defendants found out about the shooting, they began to plot revenge against
SF via computer instant messaging. For example, Lee told Khek that he was going to
find out where the shooter lived and added: “Oh yeah. I found out that this Anthony
[Nguyen] kid from Andrew Hill [High School] lives with Johnny. . . . [¶] . . . [¶] . . . We
start by taking them out one by one. [¶] . . . [¶] . . . Just hit them up. Let‟s kill this
Anthony kid from A Hill. He‟s a kid, too, just like Tuan. Eye for an eye.” And Khek
told Lee: “How does that Anthony kid look like? I am going to fuck his ass up. [¶] . . .

                                                2
[¶] And run away like an assassin. [¶] . . . [¶] And he won‟t know who hit him.” Lee later
sent pictures of Anthony Nguyen to Khek, and Khek told Lee that “I‟m going to get him
after school so maybe at 3:00.”
       On September 6, 2007, Anthony Nguyen, Phong Nguyen, Kim Huynk, Lily
Phong, and Kevin Huynh were smoking and talking outside a laundromat and the Q-Cup
café. Khek walked up to Anthony Nguyen and asked whether he was Anthony. When
Anthony Nguyen affirmed that he was Anthony, Khek stabbed him twice and ran away.
Anthony Nguyen died at the scene from massive bleeding. One of the stab wounds
penetrated his shoulder; the other wound penetrated his stomach four and a half inches,
cut through the liver and aorta, and caused six to 12 inches of bowel to protrude from the
body. Phong Nguyen and Kim Huynk identified Khek to the police. Police obtained an
arrest warrant for Khek, determined that he was on probation with a search condition,
arrested him at his apartment, and seized his computer. A witness linked Anthony
Nguyen to Lee, and the police determined that Lee was on juvenile probation with a
search condition. The police went to Lee‟s residence, conducted a probation search, and
seized Lee‟s computer.
                               MOTIONS TO SUPPRESS
       Defendants contend that the trial court erred by denying their motions to suppress
the evidence seized from their homes. They argue that the “police lacked knowledge of
the terms of the search conditions upon which the authority to search was asserted.”
According to defendants, “an officer‟s bare knowledge that there is a search condition
without specific knowledge of its terms, and, therefore, limitations” does not permit a
general search. There is no merit to this contention.
       “[U]nder California law, a search conducted pursuant to a known probation search
condition, even if conducted without reasonable suspicion of criminal activity, does not
violate the Fourth Amendment as long as the search is not undertaken for harassment or



                                             3
for arbitrary or capricious reasons or in an unreasonable manner.” (People v. Medina
(2007) 158 Cal.App.4th 1571, 1577.)
       There is no authority for defendants‟ proposition that a search conducted pursuant
to a known search condition is unlawful without the additional requirement that the
searching officers know the specific terms and limitations of the search condition.
Defendants do not argue that the searches in this case exceeded the search conditions‟
limitations.
                 ADMISSION OF MURDER VICTIM PHOTOGRAPH
       Defendants contend that the trial court abused its discretion by admitting a
photograph “showing the abdomen and the extrusion of the intestines over [their]
objection[s]” grounded on Evidence Code section 352 and due process principles.
Defendants fail to carry their appellate burden.
       Defendants objected to several photographs of the victim proffered by the People
arguing that they were “particularly gruesome” and “offensive.” Ultimately, the trial
court admitted one photograph taken at the scene of the crime. It explained: “The
photographs that depict the condition of the victim at the time he was first contacted by
paramedics and thereafter at the coroner‟s office insofar as they show the intestines.
There is no question that they are gruesome photos; that‟s a fact. There is no question
that they accurately represent what the scene was. And they are relevant. The question is
evaluating the gruesome nature of them to the probative value of them. And the
photographs are relevant on issues of intent, malice, premeditation, and deliberation.
They can be described verbally, but certainly pictures express the scene in a different way
than words do. Having said that, the Court is not prepared to exclude all of those but the
Court is not prepared to admit all the photos either. The Court believes and the Court has
identified in its mind from this offered packet a photograph that would meet those needs,
and it would appear to be to the Court under 352 to balance in favor of being admitted.
Having done that, the Court is satisfied that the additional photos the cumulative value of

                                             4
those photos or prejudice as it were outweighs the probative value, and that the other
independent bases for leaving those photos would be admissible pale in regards to the
prejudice of the cumulative value of the photographs. And that wasn‟t stated very
artfully but ultimately in weighing its discretion under 352 the Court is going to permit
the People to use photograph 615619. The Court is satisfied that that photograph
represents the condition of the victim at the time paramedics were treating him at the
scene, shows the what will be described I guess as the results of the abdominal wound.”
       Defendants simply reargue their trial court position that the photograph was
irrelevant and, in any event, more prejudicial than probative. They fail to explain,
however, the manner in which the trial court‟s decision was beyond reason. (People v.
Osband (1996) 13 Cal.4th 622, 666 [abuse of discretion may be found when the trial
court‟s ruling falls outside the bounds of reason].) In any event, defendants could not
successfully make such an argument.
       Appellate courts are “ „often asked to rule on the propriety of the admission of
allegedly gruesome photographs. [Citations.] At base, the applicable rule is simply one
of relevance, and the trial court has broad discretion in determining such relevance.
[Citation.] “ „[M]urder is seldom pretty, and pictures, testimony and physical evidence in
such a case are always unpleasant‟ ” [citation], and we rely on our trial courts to ensure
that relevant, otherwise admissible evidence is not more prejudicial than probative
[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. Lewis (2009) 46 Cal.4th 1255, 1282;
accord, People v. Hinton (2006) 37 Cal.4th 839, 896.) The discretion applies equally to a
photograph, which may be admitted as “pertinent because it showed the „nature and
placement of the fatal wounds‟ . . . [or] supported the prosecution‟s theory of how the
murders were committed [citation] [or] illustrated the testimony of the coroner and
percipient witnesses.” (People v. Loker (2008) 44 Cal.4th 691, 705.)

                                             5
       Here, the trial court could have rationally concluded that the photograph was
highly relevant. The photograph showed the nature and brutality of the wounds, which
illustrated the People‟s theory that the killing was intentional rather than an assault gone
awry and the pathologist‟s testimony about the severity of the injuries. “The challenged
photograph[] simply showed what had been done to the victim; the revulsion [it] induced
is attributable to the acts done, not to the photograph[].” (People v. Brasure (2008) 42
Cal.4th 1037, 1054.) And the photograph was not “somehow rendered irrelevant simply
because [the] defendant did not dispute the cause of death or the nature and extent of the
victim‟s injuries.” (People v. Heard (2003) 31 Cal.4th 946, 975.)
       Even assuming that the photograph simply corroborated witness testimony as to
how the murder occurred, this does not establish that the trial court abused its broad
discretion in admitting the photograph into evidence. “ „[P]rosecutors, it must be
remembered, are not obliged to prove their case with evidence solely from live witnesses;
the jury is entitled to see details of the victims‟ bodies to determine if the evidence
supports the prosecution‟s theory of the case.‟ ” (People v. Roldan (2005) 35 Cal.4th
646, 713.) The People are entitled to prove their case and need not “ „accept antiseptic
stipulations in lieu of photographic evidence.‟ [Quoting People v. Pride (1992) 3 Cal.4th
195, 243.]” (People v. Loker, supra, 44 Cal.4th at p. 705.) “Autopsy photographs are
routinely admitted to establish the nature and placement of the victim‟s wounds and to
clarify the testimony of prosecution witnesses regarding the crime scene and the autopsy,
even if other evidence may serve the same purposes.” (People v. Howard (2010) 51
Cal.4th 15, 33.)
       We cannot conclude the prejudicial effect of the photograph so clearly outweighed
its probative value to render the trial court‟s ruling an abuse of discretion.
               EXCLUSION OF DEJONG‟S STATEMENTS OF INTENT
       Defendants unsuccessfully sought to admit certain statements, which DeJong
made to the police, under the declaration-against-interest exception to the hearsay rule.

                                               6
(Evid. Code, § 1230 [“Evidence of a statement by a declarant having sufficient
knowledge of the subject is not made inadmissible . . . if the declarant is unavailable as a
witness and the statement, when made, was so far contrary to the declarant‟s pecuniary or
proprietary interest, or so far subjected him to the risk of civil or criminal liability, . . .
that a reasonable man in his position would not have made the statement unless he
believed it to be true.”].) They argue that the trial court abused its discretion. They fail
to carry their burden to so demonstrate.
       In order for a statement to be admissible as a declaration against penal interest, “
„[t]he proponent of such evidence must show “that the declarant is unavailable, that the
declaration was against the declarant‟s penal interest, and that the declaration was
sufficiently reliable to warrant admission despite its hearsay character.” ‟ [Citation.]
„The focus of the declaration against interest exception to the hearsay rule is the basic
trustworthiness of the declaration. [Citations.] In determining whether a statement is
truly against interest within the meaning of Evidence Code section 1230, and hence is
sufficiently trustworthy to be admissible, the court may take into account not just the
words but the circumstances under which they were uttered, the possible motivation of
the declarant, and the declarant‟s relationship to the defendant.‟ ” (People v. Geier
(2007) 41 Cal.4th 555, 584 (Grier).)
       Because of concerns that declarations against penal interest may contain self-
serving and unreliable information, the exception generally does not “apply to collateral
assertions within declarations against penal interest.” (People v. Campa (1984) 36 Cal.3d
870, 882.) Further, “[e]ven a hearsay statement that is facially inculpatory of the
declarant may, when considered in context, also be exculpatory or have a net exculpatory
effect. [Citation.] Ultimately, . . . „whether a statement is self-inculpatory or not can
only be determined by viewing it in context.‟ ” (People v. Duarte (2000) 24 Cal.4th 603,
612 (Duarte).) Only those portions of the declaration that are “specifically disserving” to



                                                 7
the declarant‟s penal interests are admissible under Evidence Code section 1230. (People
v. Leach (1975) 15 Cal.3d 419, 441.)
       “Courts applying [Evidence Code] section 1230 to determine the basic
trustworthiness of a proffered declaration are . . . to „consider all the surrounding
circumstances to determine if a reasonable person in [the declarant‟s] position would
have made the statements if they weren‟t true.‟ ” (Duarte, supra, 24 Cal.4th at p. 618.)
In general, the least trustworthy statements are made to the police in order to deflect
criminal responsibility onto others and the most trustworthy occur in noncoercive and
uninhibited settings. (People v. Greenberger (1997) 58 Cal.App.4th 298, 335.)
Generally, when an inculpatory statement is combined with self-serving exculpatory
assertions, the exculpatory assertions will be considered untrustworthy and inadmissible.
(Duarte, supra, at p. 612.)
       We review a trial court‟s determination under Evidence Code section 1230 for an
abuse of discretion. (People v. Brown (2003) 31 Cal.4th 518, 536.) Thus, the trial
court‟s decision “ „ “will not be disturbed except on a showing the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.” ‟ ” (Geier, supra, 41 Cal.4th at p. 585.) This rule
requires that the reviewing court engage in all intendments and presumptions in support
of the decision and consider the evidence in a light most favorable to the prevailing party.
(People v. Condley (1977) 69 Cal.App.3d 999, 1015.) It also requires that the party
claiming abuse of discretion affirmatively establish the point. (Smith v. Smith (1969) 1
Cal.App.3d 952, 958.)
       DeJong first told the police that he had been sleeping at his home at the time of the
murder. He then told them that he had left home near the time of the murder to deliver a
friend‟s backpack to school. Later in the interview, he denied ever going to the Q-Cup
café and offered that he had learned of a killing at the Q-Cup from his girlfriend. After
taking a break, the police told DeJong that they were investigating Anthony Nguyen‟s

                                              8
murder at the Q-Cup; did not believe DeJong; and wanted to hear the truth from DeJong.
DeJong then admitted that he went to the Q-Cup after dropping off the backpack. Before
continuing, the officers revealed that they knew what had happened and cautioned
DeJong against lying. DeJong then admitted being at the Q-Cup with Khek.
       Defendants proffered the following statements from the interview for admission
into evidence.
       1.      “We were driving to Q-Cup. We weren‟t planning it--this--there wasn‟t
any plan it was just supposed to be, you know. We weren‟t--we weren‟t about to do it--
or he wasn‟t--but then. . . .”
       2.      “And we walked back close to my car and we didn‟t know if we should do
it . . . and then, fuck, I don‟t know, I took him back home to his house.”
       3.      [Question: What was the plan? How were you going to hurt him?] “Either
jump him and if you were gonna use a weapon, use, not that, not too muc[h] „cause we
didn‟t want him to die. Just stab him once, twice middle of the stomach and that was it.
But I guess he got him in the neck too.”
       4.      “Go to his house, stab him, and walk--walks away. [¶] . . . [¶] That was plan
2.”
       5.      [Question: Who came up with the stabbing plan, you, [Vinh] Ly, and
Khek. How „bout [Lee]?] “No, he wasn‟t--he wasn‟t in [the car].”
       6.      [Dialogue to the effect that DeJong, Khek, and Ly drove back to Khek‟s
home and Lee was already there harboring the belief that the plan had been to jump
Anthony Nguyen.]
       According to defendants, the statements involved DeJong in a plan to assault
Anthony Nguyen and, as such, were against his penal interests. The People countered
that the statements were exculpatory rather than incriminatory and, in any event,
untrustworthy.



                                             9
       The trial court ruled that the statements were inadmissible and explained as
follows.
       “Well, and I guess that‟s where I have to look at the total picture. And the cases
on declarations against penal interest focus on a couple of main points. Number one, not
that the Court has to make a finding of truth but reliability, trustworthiness is the fulcrum
of the exception to the hearsay rule. That is that the statement must be contrary to the
declarant‟s interest such as it‟s reasonable to infer that the declarant wouldn‟t make it
unless it was true, that is had some--some foundation there. And the cases are clear that
the Court has to consider the statements in the total context of them. And the Court has
to look at the motive for the statement. That a statement on its face though legally
incriminatory may really seek to minimize or exculpate the declarant. If so then that
becomes a struggle for its reliability. This is one exception as it were where we don‟t
look at it by an objectively reasonable standard. You really have to look at the guts of the
subjective motive of the declarant because that is part of what guides us. And to the
extent it‟s partially incriminatory/partially exculpatory then it can and may be redacted if
that works. But trustworthiness is what it‟s all about. Certainly one statement can be
inculpatory in one context and exculpatory in another. To the extent a statement tell us--
you know, tell us about this case and the declarant lays out in clear form from start to
finish a plan. So, for instance, if Mr. DeJong at the front end had, you know, the cop said
we‟re investigating this death, we think you know something, tell us what happens. And
he goes--lays out a whole scenario exactly as he laid out at the end, one could certainly
argue that that‟s incriminatory. Incriminatory is not whether the words stated can be used
against him. It is that the declarant believes it‟s against his interest to say what he‟s
saying. And to the extent what the Court struggles with here is Mr. DeJong having said I
had . . . nothing to do with it, then having been confronted as it were and then says okay,
okay, you got me, I was there, I thought they were going to do this, I thought this was
going to happen, this is what the plan is--those words while legally arguably

                                              10
incriminatory to the sense that they can be used against him, and clearly were considered
against him in the decision to file charges against him, if they are minimizing the
involvement, if they are minimizing the offense, you‟re right, he doesn‟t have to say, gee
whiz, you know, we‟re not guilty of murder, we‟re only guilty of manslaughter. But if
what he is saying is, hey, yeah, I was there but we didn‟t plan this, this is not what was
expected, what was planned was that he be stabbed in the stomach, that he would be
assaulted, that he would be, you know, that we‟d get back that way--is that minimizing?
Absolutely. Is that arguably exculpatory? Absolutely. Is it incriminatory to the extent it
is evidence from which one can find his guilt? Absolutely. So there‟s no question as you
described sure it‟s incriminatory of a 245, if it‟s not believed it‟s incriminatory of a lot
more than that. But the guts of it is that it is being believed, that it is trustworthy as an
accurate statement of what occurred, that it is reliable; and in its reliable trustworthy form
when looked at in the total context those portions of the statements that suggest the plan
was significantly different than being argued by the People--it is exculpatory.”
       Here, there is no dispute that DeJong was unavailable as a witness at trial. He was
sworn as a witness and refused to testify on the ground of self-incrimination. (People v.
Cudjo (1993) 6 Cal.4th 585, 607 [a declarant who claims the Fifth Amendment right to
be silent is unavailable within the meaning of Evid. Code, § 1230].)
       Thus, the issue before the trial court was whether the statements at issue were
against DeJong‟s penal interests when made and trustworthy. As is apparent from the
trial court‟s explanation, these two factors are inherently entwined and, most importantly
for purposes of appellate review, subjective. Thus, defendants‟ arguments, which
essentially urge that the trial court “did not arrive at the correct result,” fail to carry their
appellate burden to affirmatively demonstrate trial court irrationality from the evidence
favorable to the trial court‟s ruling.
       Here, the trial court could have rationally concluded that DeJong‟s statements
were exculpatory or self-serving and untrustworthy because DeJong lied to the police

                                                11
and, when caught in the lie, sought to minimize his culpability by posing an assault-gone-
awry scenario. The court in Duarte held that the trial court had erred by admitting into
evidence statements to the police similar to those at issue.
        In Duarte, the defendant and another man were charged with shooting at a
dwelling. Before trial, the defendant‟s accomplice gave the police a statement
acknowledging participation in the crime, but minimizing his role. A redacted version of
the statement was admitted at the defendant‟s trial as an admission against penal interest.
Duarte explained that “a hearsay statement „which is in part inculpatory and in part
exculpatory (e.g., one which admits some complicity but places the major responsibility
on others) does not meet the test of trustworthiness and is thus inadmissible.‟ ” (Duarte,
supra, 24 Cal.4th at p. 612, quoting In re Larry C. (1982) 134 Cal.App.3d 62, 69.)
Applying this rule, Duarte concluded the redacted statement, viewed in context, was self-
serving and thus should have been excluded from evidence. (Duarte, supra, at pp. 612-
613.)
        Here, the trial court‟s lengthy analysis demonstrates that it exercised its discretion
in a manner that was entirely consistent with the case law for determining the declaration-
against-interest exception to the hearsay rule articulated in Evidence Code section 1230.
Defendants‟ argument that “DeJong‟s statements were properly admissible” is no more
than a disagreement with the evidence supporting the trial court‟s subjective evaluation of
the proffered evidence. In short, defendants fail to carry their appellate burden to
demonstrate an abuse of discretion.
        Defendants‟ claims of constitutional error are also without merit. In general,
application of the ordinary rules of evidence do not impermissibly infringe on a
defendant‟s right to present a defense. (People v. Robinson (2005) 37 Cal.4th 592, 626-
627.) Here, because the trial court found that the hearsay, even if subject to an exception,
was unreliable, excluding it did not violate defendants‟ right to present a defense.
Defendants also suffered no denial of due process. Their citation to Chambers v.

                                              12
Mississippi (1973) 410 U.S. 284, is erroneous. There, the court overturned a state court‟s
application of its hearsay rule because it excluded evidence made under circumstances
that provided considerable assurance of the evidence‟s reliability. (Id. at pp. 298-302.)
Here, defendants cannot complain of a denial of due process because the hearsay
evidence they sought to introduce was unreliable.
       Defendants alternatively urge that the trial court abused its discretion by excluding
evidence of DeJong‟s statements of intent because it admitted DeJong‟s inculpatory
police statements requested by the People. We will address the point in the context of
Khek‟s claim of error concerning the admission of DeJong‟s inculpatory police
statements.
              ADMISSION OF DEJONG‟S INCULPATORY STATEMENTS
       As part of its examination of DeJong‟s entire police statement, the trial court
indicated that certain statements favoring the People‟s case were admissible as
declarations against interest. The parties therefore agreed to have the evidence admitted
via stipulation, subject to Khek‟s objections that the statements transgressed “Khek‟s
Sixth Amendment rights” and did not “represent the totality of what [DeJong] said.”
Pursuant to the agreement, the parties arrived at a stipulation, which eliminated from
DeJong‟s statements any references to Khek such as, “I went to [Khek‟s] house. It was
me and [Khek],” “We were driving to Q-Cup,” “We drove back around and we saw him,”
“then he ran out of the car,” “and . . . three times he stuck him,” and “then I took him
back home.” The prosecutor then read the stipulation to the jury as follows.
       “Number one: On September the 6th, 2007, DeJong drove to the Q-Cup retail
center. [¶] Two: He parked on a street behind the retail center. [¶] Three: DeJong got out
of his vehicle, went inside the Q-Cup, didn‟t buy anything, and walked back out. [¶]
Four: After DeJong left the Q-Cup he walked back to the car, got in, and began to drive
away. He turned north on Yuma--it‟s spelled Y-u-m-a. He then turned onto Southside to
Senter Road, went down Senter, saw Anthony Nguyen, did a U-turn, stopped in front of

                                             13
the retail center, and then parked on the corner. After stopping there he drove to the back
of the retail center. [¶] Number five: DeJong told the police that he was there
approximately five to ten minutes before the stabbing.”
       Khek contends that the admission of the stipulation transgressed his right to
confront the witnesses against him as explained in Crawford v. Washington (2004) 541
U.S. 36 (Crawford). Khek is incorrect.
       In Crawford, supra, 541 U.S. at pages 53 through 54, 68, and Davis v. Washington
(2006) 547 U.S. 813, the court held that admission of testimonial hearsay statements
against a defendant violates the Sixth Amendment confrontation clause when the
declarant is not, and has not previously been, subject to cross-examination. Further,
because the confrontation clause applies to “ „witness[es] “against” ‟ ” the accused, that
constitutional provision is implicated only to the extent an out-of-court statement is
“admitted „against‟ defendant.” (People v. Lewis (2008) 43 Cal.4th 415, 506.)
       The issue of whether a statement is offered against a defendant for the purposes of
the confrontation clause commonly arises in the situation addressed by the Aranda-
Bruton line of cases (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States
(1968) 391 U.S. 123, 126-137), in which one defendant‟s confession or inculpatory
statement that is offered in a joint trial as evidence against him by the prosecution also
includes evidence that is inculpatory of a codefendant. If such a statement is properly
redacted to remove reference to the codefendant and a limiting instruction is given, the
statement may be admitted in a joint trial without violating the codefendant‟s right to
confrontation, as it is not considered to be offered against the codefendant within the
meaning of the confrontation clause. (Richardson v. Marsh (1987) 481 U.S. 200, 211;
Gray v. Maryland (1998) 523 U.S. 185, 196.)
       Thus, when a statement “contain[s] no evidence against defendant,” it “cannot
implicate the confrontation clause.” (People v. Stevens (2007) 41 Cal.4th 182, 199,
italics added.)

                                             14
        Here, DeJong‟s statement contained no evidence against Khek because it neither
identified Khek nor contained any inculpatory information as to him. “Thus, it cannot
implicate the confrontation clause. [Citations.] The same redaction that „prevents Bruton
error also serves to prevent Crawford error.‟ ” (People v. Stevens, supra, 41 Cal.4th at p.
199.)
        Because the trial court admitted DeJong‟s inculpatory statements, defendants
contend that the excluded statements of DeJong‟s intent to hurt rather than kill were
admissible under Evidence Code section 356. They again fail to demonstrate that the
trial court abused its discretion by excluding the intent statements. (People v. Parrish
(2007) 152 Cal.App.4th 263, 274 [we review a ruling under Evid. Code, § 356 for abuse
of discretion].)
        Evidence Code section 356 states in pertinent part, “Where part of an act,
declaration, conversation, or writing is given in evidence by one party, the whole on the
same subject may be inquired into by an adverse party . . . when a detached act,
declaration, conversation, or writing is given in evidence, any other act, declaration,
conversation, or writing which is necessary to make it understood may also be given in
evidence.”
        Evidence Code section 356, creates an exception to the hearsay rule “without
labeling it as such.” (People v. Pic‟l (1981) 114 Cal.App.3d 824, 863-864, fn. 13,
disapproved on another point in People v. Kimble (1988) 44 Cal.3d 480, 496 & fn. 12.) It
is known as California‟s “statutory version of the common law rule of completeness.”
(People v. Parrish, supra, 152 Cal.App.4th at p. 269, fn. 3.) “By its terms [Evidence
Code] section 356 allows further inquiry into otherwise inadmissible matter only, (1)
where it relates to the same subject, and (2) it is necessary to make the already introduced
conversation understood. Thus, it has been held: the court must exclude such additional
evidence if not relevant to the conversation already in evidence.” (People v. Gambos
(1970) 5 Cal.App.3d 187, 192-193, italics omitted.) The purpose of the section is to

                                             15
place the portions of the admitted conversation or writing in context and to “prevent the
use of selected aspects of a conversation, act, declaration, or writing, so as to create a
misleading impression on the subjects addressed.” (People v. Arias (1996) 13 Cal.4th 92,
156 (Arias).)
       It is true that “[i]n applying Evidence Code section 356 the courts do not draw
narrow lines around the exact subject of inquiry. „In the event a statement admitted in
evidence constitutes part of a conversation or correspondence, the opponent is entitled to
have placed in evidence all that was said or written by or to the declarant in the course of
such conversation or correspondence, provided the other statements have some bearing
upon, or connection with, the admission or declaration in evidence. . . .‟ ” (People v.
Hamilton (1989) 48 Cal.3d 1142, 1174 (Hamilton).) However, this standard does not
create an open-sesame for anything said out of court on any subject merely because it
was uttered on the same occasion as the statement admitted in evidence. As noted,
Evidence Code section 356 requires the admission only of “the whole” of an out-of-court
statement “on the same subject” as the part which has already come in. If “the same
subject” means “anything discussed in the same interview,” the Legislature‟s use of “the
same subject” to qualify and limit “the whole” would be surplusage.
       Khek argues that “it was appropriate to allow the jury to also learn that the scope
of the planned attack had only involved hurting [Anthony] Nguyen, not killing him”
because “the prosecution had been permitted to introduce evidence of DeJong‟s
admissions that he had driven to the crime scene and been involved in the plan to attack
Nguyen.”
       As is apparent, Khek patently fails to demonstrate that the trial court abused its
discretion. That the trial court might have decided that it was appropriate to admit the
intent statements under Evidence Code section 356 does not demonstrate that the decision
to exclude the evidence was irrational. In any event, Khek could not demonstrate an
abuse of discretion.

                                              16
       In the statement admitted by stipulation under the declaration against interest
hearsay exception, DeJong essentially stated that he had driven to the crime scene. There
is nothing incomprehensible or misleading about this statement that needs clarification
from other statements that DeJong made in the same police interview. Moreover, the
inference that the jury could reasonably draw from the statement is that DeJong
participated in the crime while DeJong‟s statements about the scope of the planned attack
that the trial court excluded pertained to DeJong‟s motive in committing the crime. But
the motive statements did not relate to the introduced subject matter--DeJong‟s
participation in the crime. They related to a different subject matter--DeJong‟s state of
mind. As such, the motive statements may have explained why DeJong participated in
the crime but were unnecessary to the jury‟s understanding that DeJong participated in
the crime. (See Arias, supra, 13 Cal.4th at p. 156.) At best, the motive statements were
cumulative in the sense of reinforcing the inference that DeJong participated in the crime.
       It is true that motive statements can sometimes be on the same subject as the
already-admitted evidence. For example, in Hamilton, the defense offered part of a
witness‟s statement relating what defendant had told her about “ „the details‟ of the
planned crime.” (Hamilton, supra, 48 Cal.3d at p. 1174.) The trial court allowed the
prosecutor to put on the entire statement, in which the witness also spoke of the
defendant‟s motive, over defense counsel‟s objection that motive was outside “ „the
subject‟ ” of his evidence. The reviewing court upheld this ruling because “[d]efendant‟s
conversations with [the witness] encompassed motive as well as plan, and counsel‟s
questions draw no clear distinction between the two subjects.” (Ibid.)
       On the other hand, if the counsel in Hamilton had clearly defined “plan” as “the
subject” for which he was offering the evidence, his objection that “motive” was outside
that subject would have been well-founded.




                                             17
       Here, the People offered DeJong‟s statement to prove DeJong‟s participation in
the crime. The trial court could have rationally concluded that DeJong‟s motive was
outside that subject.
                                   JURY MISCONDUCT
       Defendants contend that the trial court erred by denying their motions for a
mistrial grounded on jury misconduct. They urge that the jury received extraneous
information.
       After the jury had sent a note to the trial court, the trial court held a hearing after
excusing from the hearing Juror No. 5, Juror No. 9, Alternate Juror No. 1, and Alternate
Juror No. 4, who professed no knowledge of the purpose for the hearing. The trial
court‟s questioning of the remaining jurors revealed the following.
       1.      Juror No. 10 stated that, when the jury was in the waiting room during the
previous week, a young boy was pointing his cell phone at the jury as if he were taking
the jury‟s picture; Alternate Juror No. 3 stated that he had seen the boy raising his cell
phone as if he were snapping pictures and Juror No. 3 stated that it looked as if the boy
were taking pictures; no other jurors saw the incident but the jurors had discussed the
incident before Juror No. 10 wrote a note to the trial court to express concerns about the
incident.
       2.      Juror No. 10 stated that, on one occasion when the attorneys had
approached the bench, Lee looked at the jury, made a hand gesture at his chin with his
hand shaped like a gun, and scratched his chin when the attorneys turned around and
returned to the defense table; no other jurors saw the incident but the jurors (except Juror
No. 4 and Juror No. 11) had discussed the incident before Juror No. 10 wrote the note to
the trial court (the trial court excused Juror No. 4 and Juror No. 11 from the hearing after
learning that they did not participate in the jury discussion about the gun incident).
       Outside the jury‟s presence, the parties identified the young boy as Anthony
Nguyen‟s brother and the trial court called him to testify. The boy stated that he

                                              18
possessed a cell phone but it did not have the ability to take photographs. The trial court
then called the boy‟s father who testified that the boy‟s cell phone did not have the ability
to take photographs. It then called back the individual jurors separately, questioned them
in more detail about the two incidents, allowed defendants‟ attorneys to question them,
and admonished them against talking about the case among themselves before the case
was submitted to them. At the conclusion of this process, Khek moved for a mistrial
grounded on the hand gesture. He argued that Lee had threatened the jury and he could
not therefore “receive a fair trial because of the actions of Mr. Lee in a case where there
are gang allegations, where there are incredible amounts of evidence showing them doing
things together, for each other, with each other. I don‟t know how to describe Mr. Lee‟s
threatening of jurors in any other way other than just outrageous conduct.” Lee moved to
discharge Juror No. 10 and Juror No. 3 because of the hand gesture.3 He argued that
Juror No. 10 could “no longer be fair and impartial” and Alternate Juror No. 3 “voiced
some opinions that suggest that he has been significantly impacted by what he believed
he saw.” The People countered that no one except Juror No. 10 had seen the hand
gesture and “not one juror on this case has said they have a serious concern about their
own safety. Jury--Juror 10 said that but her conducts may belie her words.” However,
the People acknowledged that Juror No. 10 had transgressed the trial court‟s repeated
admonishments against talking to others about the case: “[S]he did it not to a single
person but did it collectively almost. She also apparently talked to her husband, which
she didn‟t bring up, which she should have brought up, which she should have known
was wrong, and that‟s of concern that she wasn‟t completely forthcoming; and the Court
has repeatedly mentioned don‟t discuss the case with anyone.”

       3
        Lee later urged that he had grounds for a mistrial. According to Lee, Juror No.
10 had been ambivalent about whether the hand gesture was actually a simulated gun but
her perception and communication that it was or might have been a gun prejudiced the
jury against him.


                                             19
       The trial court declined to declare a mistrial but agreed to excuse Juror No. 10 and
Alternate Juror No. 3. It explained as follows.
       “The Court, as the record will reflect, spent a great deal of time examining the
jurors. Although frankly not required and it‟s strictly within the Court‟s discretion, the
Court felt the issues were important enough to allow counsel to voir dire the jurors as
appropriate because the Court doesn‟t perceive itself as having any particularized wisdom
in fact gathering. Having said that while counsel were examining the jurors, . . . the
Court had the opportunity to observe the jurors. . . . [¶] The Court nowhere is making any
factual findings. It is evident that Juror Number 10 sincerely--and frankly, [trial court
addresses Lee‟s counsel], I don‟t think there was the equivalency--the--I don‟t think she
was necessarily backing down. I think Juror Number 10 is adamant about what she
believes she saw and she honestly believes she saw Mr. Lee make the gesture that she
described. At most she would acknowledge that she couldn‟t know who was in his mind
when she believes he made it. She has told us what her interpretation was. [¶] It is clear
that none of the other 15 jurors saw the gesture or any type of gesture from Mr. Lee or
Mr. Khek that would approximate the description of Juror Number 10. None, and all
clearly conceded, none are in a position to evaluate whether it happened or it didn‟t
happen. [¶] You challenged Juror Number 10, if any, challenged Juror Number 10‟s
credibility for her honest belief in what she says she saw. But all of the rest were very
frank that they didn‟t see anything. Notwithstanding that, Juror Number 10 did discuss
her observations with most if not all of the balance of the jurors. There were several that
were not involved in the discussion. And it was a combination of her telling them what
she saw combined with showing them the note she wrote to give us on Monday and
seeking their support as it were of the presentation of the note. For her reasons and--
speculation may be the wrong word--there are inferences to be drawn as to why she
would do that. I think she has concerns. I think she wanted support from the balance of
the jury, and notwithstanding the admonitions she shared all that information and sought

                                             20
to perhaps bolster the note she referenced to the jurors she showed it to some of them the
issues regarding the young man and the alleged perceptions or the perceptions of the cell
phone and/or photos. Her observations of the young man involved her assumptions that
it was a camera, and frankly most of the other jurors related their assumptions. This
started apparently with one or more jurors standing in the hallway seeing the young man
who apparently was making his presence aware to those around him because he‟s an
eleven year old and causing one of the jurors to question, as Juror Number 3 told us, I
wonder if he can take pictures. And that then evolved into certainly Juror Number 10
being concerned that their security was at risk if the young man was taking pictures of
one or more of the jurors. To the extent there are facts, those are the facts. [¶] The only
additional facts have to do with the discussion between Alternate Juror Number 3,
Alternate Juror Number 1, and Juror Number 9 Monday after the noon recess prior to the
beginning of the afternoon when we were in fact joined by alternate Juror Number 3.
And the issue of the comments made by Alternate Juror Number 3 to Juror Number 9 not
heard by [A]lternate Juror Number 1 . . . . [¶] . . . [¶] Alternate Juror Number 3 has--the
questions the Court and counsel presented to him, his answers were all straight forward.
He presented a demeanor that suggested no problem with moving forward. Some
concerns about the issues regarding the camera. The flavor of the conversation with
Juror Number 9, however, gives the Court pause for concern. That--not that he is failing
to be candid, because I‟m not sure whether he failed to deliver on specific questions
asked, but he clearly understood the subjects of discussion. He immediately preceding
[sic] that he had had a discussion with Jurors 9 and Alternate [No.] 1 that expressed his
concerns, his feelings vis-à-vis retaliation, how those issues could be dealt with,
protection, and conveyed a state of mind that the Court feels compromises his ability to
be a fair and impartial juror. And the Court is going to exclude--is excusing, discharging
Alternate Juror Number 3 as well as Juror Number 10. [¶] As to the balance of the jurors
I‟m not going to walk through them individually. They‟ve been outlined. Their words

                                             21
will stand for themselves. I will say as to the remain[ing] jurors there was nothing in
their demeanor, their responses, that suggested other than an honest understanding of the
law, an honest understanding of their responsibility, the unfortunate as suspects of
receiving the information they received, clear recognition that none of those are facts in
the case proven as facts in the case, and will not be considered by them in any way,
shape, or form; and the Court finds no concern or basis ultimately to cause excusal of any
of the rest of the jurors beyond the two that have been outlined.”
       After excusing Juror No. 10 and Alternate Juror No. 3, the trial court admonished
the jury against speculating about the jurors‟ absence and reminded the jury to bring
concerns or issues about the case to it rather than discussing the point among themselves.
It then replaced Juror No. 10 with Alternate Juror No. 4.
       Defendants argue that the trial court should have granted their motions for a
mistrial because there was jury misconduct--given that the trial court excused two jurors--
and the presumption of prejudice was not dispelled. They dispute that the discharge of
Juror No. 10 and Alternate Juror No. 3 was an adequate remedy.
       “A defendant accused of a crime has a constitutional right to a trial by unbiased,
impartial jurors. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16. . . .) A
defendant is „entitled to be tried by 12, not 11, impartial and unprejudiced jurors.
“Because a defendant charged with a crime has a right to the unanimous verdict of 12
impartial jurors [citation], it is settled that a conviction cannot stand if even a single juror
has been improperly influenced.” ‟ ” (People v. Nesler (1997) 16 Cal.4th 561, 578;
People v. Cissna (2010) 182 Cal.App.4th 1105, 1123; People v. Duran (1996) 50
Cal.App.4th 103, 111.)
       “A sitting juror‟s involuntary exposure to events outside the trial evidence, even if
not „misconduct‟ in the pejorative sense, may require . . . examination for probable
prejudice. Such situations may include attempts by nonjurors to tamper with the jury, as
by bribery or intimidation.” (In re Hamilton (1999) 20 Cal.4th 273, 294-295.)

                                               22
“[T]ampering contact or communication with a sitting juror[] usually raises a rebuttable
„presumption‟ of prejudice.” (Id. at p. 295.) “Still, whether an individual verdict must be
overturned for jury misconduct or irregularity „ “ „is resolved by reference to the
substantial likelihood test, an objective standard.‟ ” ‟ [Citations.] Any presumption of
prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the
particular case, including the nature of the misconduct or other event, and the
surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e.,
no substantial likelihood that one or more jurors were actually biased against the
defendant.” (Id. at p. 296.) We independently determine whether there was such a
reasonable probability of prejudice. (People v. Danks (2004) 32 Cal.4th 269, 303.)
       It is unclear, however, whether the rule of irregularity regarding exposure to
events outside the trial evidence “applies to the jurors‟ perceptions of the defendant,
particularly when the defendant engages in disruptive or otherwise improper conduct in
court. As a matter of policy, a defendant is not permitted to profit from his own
misconduct.” (People v. Williams (1988) 44 Cal.3d 1127, 1156 (Williams).)
       In Williams, an alternate juror informed the trial court that the defendant had
threatened the jury when it returned the verdict in the guilt phase of a capital trial.
(Williams, supra, 44 Cal.3d at p. 1154.) The issue of “invited misconduct” also arose in
People v. Hines (1997) 15 Cal.4th 997, 1053-1055. In that case, two jurors received
telephone calls from the defendant at home, and discussed the calls with individuals
outside the jury, including the police. (Id. at pp. 1053-1054.) Citing Williams, the
Supreme Court ruled: “Defendant is barred from complaining about any conceivable
misconduct . . . in accepting his call because he invited any „misconduct‟ by making the
telephone call in the first place. [Citation.] Nor did [the jurors] act improperly when they
discussed the calls with others: Although they were not permitted to discuss the facts of
defendant‟s case with others, this prohibition did not extend to the telephone calls he
made to them.” (Id. at p. 1054, italics added.)

                                              23
       Thus, as a matter of policy, Lee cannot complain that the jurors engaged in
misconduct based on his own hand gestures, acts that Lee concedes the jurors construed
as improper.
       As to Khek, we note that Khek cites no authority for his implicit proposition that
an irregularity occurred upon the jury as a whole simply because the trial court found that
an irregularity had occurred as to Juror No. 10 and Alternate Juror No. 3. “ „[W]hen the
alleged misconduct involves an unauthorized communication with or by a juror, the
presumption [of prejudice] does not arise unless there is a showing that the content of the
communication was about the matter pending before the jury, i.e., the guilt or innocence
of the defendant.‟ ” (In re Hamilton, supra, 20 Cal.4th at pp. 305-306.) Here, none of
the deciding members of the jury saw Lee‟s gesture. The communicative content of the
gesture was not about guilt or innocence. And the jurors‟ discussions about the gesture
were about the gesture, not the facts of the case. The presumption of prejudice simply
did not arise in this case.
       In any event, even assuming that the jurors‟ reaction to learning about Lee‟s hand
gesture constituted an irregularity, the presumption of prejudice was rebutted by evidence
that no prejudice actually occurred. (People v. Honeycutt (1977) 20 Cal.3d 150, 156.)
The Williams court explained: “ „[W]hether a defendant has been injured by jury
misconduct in receiving evidence outside of court necessarily depends upon whether the
jury‟s impartiality has been adversely affected, whether the prosecutor‟s burden of proof
has been lightened and whether any asserted defense has been contradicted. If the answer
to any of these questions is in the affirmative, the defendant has been prejudiced and the
conviction must be reversed.‟ ” (Williams, supra, 44 Cal.3d at p. 1156.)
       Here, the trial court implicitly concluded that the jury‟s impartiality had not been
adversely affected. It articulated that the demeanor and responses of the remaining jurors
convinced it that those jurors had an honest understanding of the law and their
responsibility such that they would not consider the hand gesture in any way, shape, or

                                             24
form. We accept this determination. (People v. Nesler, supra, 16 Cal.4th at p. 582 & fn.
5 [“We accept the trial court‟s credibility determinations and findings on questions of
historical fact if supported by substantial evidence.”].) And, again, the gesture was not
about guilt or innocence; it did not cause the jury to converse about guilt or innocence;
and it was not inherently prejudicial because none of the remaining jurors saw the
gesture. Moreover, the trial court admonished the jury against speculating about the
reasons why Juror No. 10 and Alternate Juror No. 3 had been excused. There is no
reasonable probability of prejudice.
       Khek makes no reasoned argument to the contrary. He points out that seven of the
remaining jurors signed Juror No. 10‟s note to the trial court “to express their concerns,”
some of the remaining jurors “acknowledged having heard about the gun gesture,” two
jurors felt “uncomfortable,” Juror No. 9 heard Alternate Juror No. 3 boast “of his ability
to obtain protection from his friends and/or relatives in law enforcement if needed to deal
with a threat arising from this very trial,” Juror No. 9 “acknowledged being a „little
concerned,‟ ” and Juror No. 8 “began scrutinizing . . . Lee‟s courtroom behavior more
carefully.” He asserts that jurors do not always follow admonitions and the jury‟s four
and one-half hour deliberation after a two-week trial indicates a “rush to judgment.”
       Again, the presumption of prejudice did not arise in this case and there is no
reasonable probability of prejudice in any event.
       The parties do not focus on the cell phone incident. They mention it only in
passing. In any event, if it is misconduct, the incident is more accurately characterized as
spectator misconduct.
       “Misconduct on the part of a spectator is a ground for mistrial if the misconduct is
of such a character as to prejudice the defendant or influence the verdict. [Citations.] A
trial court is afforded broad discretion in determining whether the conduct of a spectator
is prejudicial.” (People v. Lucero (1988) 44 Cal.3d 1006, 1022.) In cases of spectator
misconduct, prejudice is not presumed. (People v. Hill (1992) 3 Cal.4th 959, 1002,

                                             25
disapproved on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069.)
“ „[I]t is generally assumed that such errors are cured by admonition, unless the record
demonstrates the misconduct resulted in a miscarriage of justice.‟ ” (People v. Hill,
supra, at p. 1002.)
       The cell phone incident was not of such a character as to prejudice defendants or
influence the verdict for the same reasons we have given about the hand gesture incident.
The jurors who saw the boy did not know whether he was, in fact, photographing them;
being photographed did not pertain to defendants‟ guilt or innocence; being photographed
did not cause the jurors to converse about guilt or innocence; being photographed is not
inherently prejudicial; and the trial court admonished the jurors and became satisfied that
the incident had not adversely affected the jurors‟ impartiality.
                                    CALCRIM NO. 400
       Murder is an unlawful killing committed with malice aforethought. (People v.
Cravens (2012) 53 Cal.4th 500, 507.) Malice may be express or implied; it is express
when the defendant intends to kill, and it is implied when the defendant deliberately
commits an act that is dangerous to human life and acts with knowledge of the danger
and a conscious disregard for life. (Ibid.)
       Once the jury has found that the defendant committed murder (i.e., a killing with
express or implied malice), it must then determine if the murder was of the first or second
degree.
       A defendant may be culpable for a crime as a direct perpetrator or as an aider and
abettor. To be culpable as an aider and abettor, the defendant must have acted with
knowledge of the criminal purpose of the perpetrator and with an intent or purpose either
of committing, or of encouraging or facilitating commission of, the offense. (People v.
McCoy (2001) 25 Cal.4th 1111, 1118.) The aider and abettor is liable for (1) the offense
committed by the perpetrator that was intended by the aider and abettor (the target
offense), and (2) other offenses committed by the perpetrator that were not intended by

                                              26
the aider and abettor but that were the natural and probable consequence of the intended
offense. (Id. at p. 1117; People v. Prettyman (1996) 14 Cal.4th 248, 260-261
(Prettyman).)
       Concerning the target offense intended by the aider and abettor, the aider and
abettor‟s mens rea is the intent associated with the target offense. (People v. McCoy,
supra, 25 Cal.4th at p. 1118 & fn. 1.) In some circumstances the aider and abettor may
be found guilty of a target offense that is greater or lesser than the offense attributed to
the perpetrator, depending on the particular states of mind of the aider and abettor and the
perpetrator and the availability of defenses to a particular crime. (Id. at pp. 1114, 1118-
1120; People v. Nero (2010) 181 Cal.App.4th 504, 507, 513-517 (Nero); People v.
Samaniego (2009) 172 Cal.App.4th 1148, 1164 (Samaniego).) In the context of a target
offense, aider and abettor liability is premised on the combined acts of all the
participants, and “on the aider and abettor‟s own mens rea.” (People v. McCoy, supra, at
p. 1120, italics added.)
       Lee argues that the trial court erred when it instructed the jury on general aiding
and abetting principles in the language of former CALCRIM No. 400.
       Using a standard CALCRIM No. 400 instruction, the trial court told the jury: “A
person may be guilty of a crime in two ways. One, he [or she] may have directly
committed the crime. I will call that person the perpetrator. Two, he [or she] may have
aided and abetted a perpetrator, who directly committed the crime. [¶] A person is equally
guilty of the crime whether he [or she] committed it personally or aided and abetted the
perpetrator who committed it. [¶] Under some specific circumstances if the evidence
establishes aiding and abetting of one crime, a person may also be found guilty of other
crimes that occurred during the commission of the first crime.” (Italics added.)
       Lee urges that “CALCRIM No. 400 instructed the jury that each principal was
equally guilty of the perpetrator‟s offense without reference to that principal‟s mental
state.” According to Lee, the instruction was erroneous and misleading because “once

                                              27
the jury concluded that Khek was guilty of first degree murder, [Lee], if found to be an
aider and abettor, was necessarily „equally guilty.‟ ”
       The courts have recognized that the “equally guilty” language in CALCRIM No.
400 can be confusing or misleading, and it has now been removed from the standard
instruction. (People v. Loza (2012) 207 Cal.App.4th 332, 348, fn. 8 (Loza); People v.
Lopez (2011) 198 Cal.App.4th 1106, 1118-1119 & fn. 5 (Lopez); Samaniego, supra, 172
Cal.App.4th at pp. 1163-1165; see also Nero, supra, 181 Cal.App.4th at pp. 510, 518.)
As noted above, an aider and abettor may be guilty of a target offense that is lesser than
the perpetrator‟s offense, depending on the aider and abettor‟s state of mind and the
availability of defenses. (See Nero, supra, at pp. 513-517; Samaniego, supra, at pp.
1163-1164.) Thus, in the context of homicide, CALCRIM No. 400‟s direction that a
defendant is “equally guilty” of a crime whether he or she committed it personally or
aided and abetted the person who actually committed it, while a generally correct
statement of aider and abettor law, has the potential to be misleading, when the aider and
abettor‟s intent is at issue. (Samaniego, supra, at p. 1165; see also Nero, supra, at pp.
517-519 [addressing CALJIC No. 3.00].)
       The record here shows that any error in the inclusion of the “equally guilty”
language in this case was harmless even if we apply the harmless-beyond-a-reasonable-
doubt standard for misinstruction on the elements of an offense. (Samaniego, supra, 172
Cal.App.4th at p. 1165; Lopez, supra, 198 Cal.App.4th at pp. 1119-1120.)4


       4
         Some courts have concluded that the “equally guilty” language is generally
accurate and it might be misleading only in exceptional cases, and, absent a request for
clarification of the instruction, the claim of error is forfeited on appeal. (Loza, supra, 207
Cal.App.4th at pp. 349-350; Lopez, supra, 198 Cal.App.4th at p. 1118; Samaniego, supra,
172 Cal.App.4th at pp. 1163-1165.) In contrast, in Nero, the court concluded that the
language can be misleading even in unexceptional circumstances. (Nero, supra, 181
Cal.App.4th at p. 518.) Given our holding of no prejudice, we need not address the
People‟s forfeiture argument, nor need we discuss Lee‟s alternative contention that his
(continued)

                                             28
      The “equally guilty” language creates the risk that the jury might think that, if it
finds the defendant in some way aided the perpetrator with the criminal conduct, it
necessarily must find the defendant guilty of the same offense as the perpetrator without
determining the aider and abettor‟s particular state of mind. (See Loza, supra, 207
Cal.App.4th at p. 356; Nero, supra, 181 Cal.App.4th at p. 518; Samaniego, supra, 172
Cal.App.4th at p. 1165.)
      To support that the “equally guilty” language had this effect here, Lee does no
more than urge that the jury could have found him guilty of first degree murder without
determining his state of mind because “There was substantial evidence that [his] mental
state was not consistent with first degree murder.” We disagree with this analysis.
      The instructions and closing arguments informed the jury that to convict Lee of
first degree murder, he had to know about and intend to assist Khek‟s murderous purpose.
      The trial court instructed in the language of CALCRIM No. 401: “To prove that
the defendant Christopher Lee is guilty of a crime based on aiding and abetting that
crime, the People must prove that: One, the perpetrator committed the crime; two, the
defendant Christopher Lee knew that the perpetrator intended to commit the crime; three,
before or during the commission of the crime the defendant intended to aid and abet the
perpetrator in committing the crime; and, four, the defendant‟s word or conduct did in
fact aid and abet the perpetrator‟s commission of the crime.”
      The prosecutor argued: “Element two: You have to prove the defendant knew the
perpetrator intended to commit the crime. What do we know? Chris Lee instigated it.
He was the person who targeted Anthony. On September the 6th Lee IM‟d Khek and
told him, Khek, that Anthony just went to school today and Nancy just called me. . . .
Lee also IM‟d Khek. Hey, careful with your phone. Why would he say that? Because


counsel provided ineffective representation for not requesting omission of the “equally
guilty” language.


                                            29
he knows he‟s going to commit a crime. So be careful with your phone. . . . We know
Lee knew he intended to commit the crime.”
       In the same fashion, Lee‟s defense counsel argued to the jury that Lee was not
guilty of murder because he did not know about or intend to assist in Khek‟s plan to
murder: “Mr. Lee must have known that the perpetrator intended to commit the crime.
Now this, Ladies and Gentlemen, is where I think the key to this allegation against Mr.
Lee is really disputed. Did he know that Kosal Khek intended to commit the crime of
murder on September the 6th, 2007?”
       In addition to the general aiding and abetting instruction containing the “equally
guilty” language of CALCRIM No. 400 and the above-mentioned specific instruction in
the language of CALCRIM No. 401 that explained in detail the mental state necessary to
impose culpability on the basis of aiding and abetting rather than direct perpetration of a
crime, the trial court provided the jury with instructions defining the elements of the
target offense of murder, which detailed that the required state of mind for murder was
express or implied malice aforethought.
       We presume that jurors are able to understand and correlate the instructions.
(Lopez, supra, 198 Cal.App.4th at p. 1119.) Reading the instructions as a whole, the jury
knew that, to find Lee guilty of murder, it had to examine Lee‟s particular mental state
and conclude that Lee knew about Khek‟s intent to commit a murder. Reasonable jurors
would understand that the general instruction stating that a person “is equally guilty of
the crime whether he . . . committed it personally or aided and abetted the perpetrator
who committed it” merely meant that an aider and abettor cannot escape culpability just
because he was not the direct perpetrator. There is nothing in the “equally guilty”
language that suggested the jury should impose culpability on a defendant without
applying the detailed aiding and abetting instructions requiring an evaluation of the
defendant‟s particular mental state. Further, the clear focus of the closing arguments by
both the prosecutor and Lee‟s counsel was whether Lee knew that Khek intended to kill.

                                             30
On this record, there is no reasonable possibility that the jury would have used the
“equally guilty” language to find Lee guilty of murder solely because he assisted Khek,
without also finding that Lee met the aider and abettor requirements of a knowing intent
to commit this offense.
       This case is not in the same posture as Nero, supra, 181 Cal.App.4th 504 and
Loza, supra, 207 Cal.App.4th 332, in which the courts found reversible error under
circumstances where, during deliberations, the jury asked questions reflecting confusion
about whether an aider and abettor could have a less culpable state of mind, and the trial
courts failed to clarify the matter. (Nero, supra, at pp. 507, 510-520 [jurors asked if aider
and abettor could be less culpable; court re-read instruction containing “equally guilty”
language]; Loza, supra, at pp. 349, 352, 355-357 [jurors asked if they should consider the
aider and abettor‟s state of mind; court referred jury back to the instructions].) Here, the
instructions and closing arguments directed the jury to examine Lee‟s own particular
mental state, and the jury did not ask any questions suggesting it did not fully understand
this requirement.
       We find beyond a reasonable doubt that the jury‟s findings of guilt would not have
been any different had CALCRIM No. 400 been modified to remove the word “equally.”
           FAILURE TO INSTRUCT ON LESSER INCLUDED OFFENSES
       “The rules governing instruction on lesser included offenses are well established. .
. . [A] trial court must, sua sponte, instruct the jury on lesser included offenses „ “when
the evidence raises a question as to whether all of the elements of the charged offense
were present [citation], but not when there is no evidence that the offense was less than
that charged.” ‟ ” (Prettyman, supra, 14 Cal.4th at p. 274.)
       Manslaughter is “the unlawful killing of a human being without malice.” (Pen.
Code, § 192.) It is a lesser included offense of murder. (People v. Breverman (1998) 19
Cal.4th 142, 154; People v. Verdugo (2010) 50 Cal.4th 263, 293.)



                                             31
       Lee contends that the trial court erred when it failed to instruct the jury sua sponte
on the lesser included offenses of voluntary and involuntary manslaughter. He argues
that there was substantial evidence that would support that he intended to commit a
dangerous felony without malice (battery with serious bodily injury--voluntary
manslaughter) or a dangerous misdemeanor without malice (battery--involuntary
manslaughter).
       “Inherent in [Lee‟s] contention [is] the proposition[] that an accomplice to a
criminal offense may in some circumstances be guilty of a crime less serious than that
committed by the principal, and that the trial court must, even in the absence of a request
by the defense, instruct the jury on a lesser included offense arguably committed by the
aider and abettor, even if the evidence would not support a jury finding that the actual
perpetrator was guilty only of that offense.” (Prettyman, supra, 14 Cal.4th at p. 275.)
       Lee‟s argument is predicated on People v. Woods (1992) 8 Cal.App.4th 1570,
which held that, under the natural and probable consequences doctrine, a defendant may
be convicted of a lesser charge than the perpetrator of the crime. “In Woods, the
defendant and a companion went in search of a rival gang member. They entered the
apartment of two acquaintances of the member of the rival gang, and assaulted the
occupants. As they were leaving, they saw two people getting into a car. The
defendant‟s companion fired into the car, killing one occupant and injuring the other. At
trial, the prosecution‟s theory was that the defendant was criminally responsible for the
shootings committed by his companion, contending that the shootings were a natural and
probable consequence of the crimes committed in the apartment that the defendant had
aided and abetted. During deliberations, the jury asked, „Can a defendant be found guilty
of aiding and abetting a murder in the second degree if the actual perpetrator of the same
murder is determined to be guilty of murder in the first degree?‟ The trial court
answered, „No.‟ The Court of Appeal held that this answer was prejudicial error.”
(Prettyman, supra, 14 Cal.4th at p. 275.)

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       “The Woods court reasoned that when the prosecution contends that the defendant
is guilty as an accomplice under the „natural and probable consequences‟ doctrine, the
defendant „does not stand in the same position as the perpetrator‟; hence, „the aider and
abettor and the perpetrator may have differing degrees of guilt based on the same conduct
depending on which of the perpetrator‟s criminal acts were reasonably foreseeable under
the circumstances and which were not.‟ ” (Prettyman, supra, 14 Cal.4th at pp. 275-276.)
       “Woods also addressed the question whether the trial court should have instructed
the jury on the lesser included offenses of voluntary and involuntary manslaughter.
Although the court concluded that under the facts of that case such instructions were
unnecessary, it held that in some cases such instructions would be necessary at the trial of
an aider and abettor even if the evidence did not show that the actual perpetrator was
guilty only of the lesser included offense. As the court explained: „If the evidence raises
a question whether the offense charged against the aider and abettor is a reasonably
foreseeable consequence of the criminal act originally aided and abetted but would
support a finding that a necessarily included offense committed by the perpetrator was
such a consequence, the trial court has a duty to instruct sua sponte on the necessarily
included offense as part of the jury instructions on aider and abettor liability.‟ ”
(Prettyman, supra, 14 Cal.4th at p. 276.)
       In Prettyman, the court considered Woods in deciding whether a defendant who
had been convicted of first degree murder under the natural and probable consequences
doctrine was entitled to an instruction on involuntary manslaughter. It concluded that,
“even if one were to assume that the trial court erred in failing to instruct the jury on
involuntary manslaughter as a lesser offense necessarily included in the crime of murder,
the error was harmless.” (Prettyman, supra, 14 Cal.4th at p. 276.) It explained that the
“trial court instructed the jury on the crime of second degree murder, a lesser offense
included within the crime of first degree murder. The jury, by convicting [the defendant]
of first degree murder rather than second degree murder, necessarily rejected the

                                              33
possibility that the only natural and probable consequence of the crime she aided and
abetted was involuntary manslaughter, a less serious crime. Because „the factual question
posed by the omitted instruction was necessarily resolved adversely to the defendant
under other, properly given instructions‟ [citation], [the defendant] suffered no prejudice
from any possible error in failing to instruct on involuntary manslaughter.” (Ibid.)
       The harmless error analysis in Prettyman applies equally here. The trial court
instructed the jury that, to convict Lee of murder under the natural and probable
consequences doctrine, it first had to be satisfied beyond a reasonable doubt that Lee was
“guilty of assault with force likely to produce great bodily injury.” It then explained that
the jury would next have to find that a reasonable person in Lee‟s position would have
known that the commission of first or second degree murder was a natural and probable
consequence of the assault. It later instructed the jury on the elements of first and second
degree murder.
       As in Prettyman, by convicting Lee of first degree murder rather than second
degree murder, the jury necessarily rejected the possibility that the only natural and
probable consequence of the crime Lee aided and abetted was manslaughter, a less
serious crime.
                              ABSTRACT OF JUDGMENT
       In pronouncing judgment, the trial court ordered defendants to pay restitution of
$28,956.13 to the victim‟s family and $7,500 to the State Victims Compensation Board.
It stated that “The orders are jointly and severally as to Mr. Khek and Mr. Lee.”
       Khek contends that his abstract of judgment should be corrected to provide that his
liability should be “joint and several” with Lee. The People object and claim that Khek
forfeited the point by failing to object below. We fail to understand the People‟s
objection. The abstract of judgment fails to reflect the joint and several nature of the
liability. This is simply a clerical error. (People v. Mitchell (2001) 26 Cal.4th 181, 185
[where an abstract of judgment differs from the sentencing court‟s oral judgment, the

                                             34
abstract does not control].) We will order modification of Khek‟s abstract of judgment to
expressly state that the restitution order is joint and several as to Khek and Lee. (See
People v. Neely (2009) 176 Cal.App.4th 787, 800.)
       Defendants complain that their abstracts of judgment do not reflect a joint and
several liability with DeJong and Ly5 who suffered judgments that included identical
amounts of victim restitution. The trial court, however, entered no such order as to
DeJong and Ly during its oral pronouncement of judgment.
       A trial court has discretion to order that codefendants share joint and several
liability for victim restitution. (People v. Neely, supra, 176 Cal.App.4th at p. 800.)
Defendants cite no authority for the proposition that the trial court is required to impose
joint and several liability. They argue that the trial court abused its discretion in failing to
do so here because such an order would have been appropriate “so as to prevent an
unsupportable multiple recovery.” But the trial court could have rationally decided not to
make an order that would affect parties who were not before it because “Of course, each
defendant is entitled to a credit for any actual payments by the other.” (People v.
Blackburn (1999) 72 Cal.App.4th 1520, 1535.)
                                       DISPOSITION
       The judgment is affirmed. Khek‟s abstract of judgment is modified to reflect that
his liability for victim restitution and to the State Victims Compensation Board is joint
and several with Lee‟s liability.




       5
       Ly also was a former codefendant who had pleaded guilty to second degree
murder before trial.


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                       Premo, Acting P.J.




WE CONCUR:




    Mihara, J.




    Márquez, J.




                  36
