Filed 9/29/14 P. v. Dang CA4/1
                           NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                         COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                       DIVISION ONE

                                                STATE OF CALIFORNIA



THE PEOPLE,                                                         D063310

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD229101)

QUANG DANG,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Michael T.

Smyth, Judge. Affirmed.

         Nancy Olsen, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette and Julie L. Garland,

Assistant Attorneys General, William M. Wood and Marvin E. Mizell, Deputy Attorneys

General, for Plaintiff and Respondent.
       A jury convicted Quang Dang of second degree murder of his cohabitant Myra

Supiping. (Pen. Code,1 § 187, subd. (a).) It found true an enhancement that he had used

a deadly weapon in committing the murder. (§ 12022, subd. (b)(1).) In separate

proceedings, Dang admitted he previously committed assault with a deadly weapon. The

court found he had a serious felony and a prior strike conviction within the meaning of

the "Three Strikes" law. (§§ 245, subd. (a)(1), 667, subds. (a)(1) & (b)-(i), 668, 1170.12,

1192.7, subd. (c).)

       The court denied Dang's request to strike his prior strike conviction under People

v. Superior Court (Romero) (1996) 13 Cal.4th 497, and sentenced him to a total term of

36 years to life as follows: 15 years to life on the murder count, doubled for the true prior

strike finding, and a consecutive five-year term for the prior serious felony, and another

consecutive one-year term for the weapons enhancement.

       Dang contends: (1) there was insufficient evidence to support his conviction for

second degree murder because he did not form the requisite intent; (2) alternatively, his

murder conviction should be reduced to voluntary or involuntary manslaughter because

he acted in the heat of passion during a sudden quarrel; (3) the court erroneously denied

his Romero motion and (4) his sentence violates state and federal constitutional

prohibitions against cruel and unusual punishment. We affirm the judgment.




1      All statutory references are to the Penal Code unless otherwise stated.
                                              2
                   FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Case

       Dang and Supiping cohabited for approximately eight years. They lived with

Dang's mother, stepfather, and two sisters in San Diego. Starting in approximately July

2010, Dang used a telephone chat line to talk with women, and shortly afterwards he

introduced it to Supiping, who started calling the chat line to talk with men. Dang

became upset because the July 2010 telephone bill was approximately $1400. Despite

the fact Dang repeatedly questioned Supiping about how they would pay the bill, Dang's

stepfather testified Supiping "never really responded. She always kept quiet."

Eventually, the bill was paid.2 Supiping continued using the chat line, and the next

month's bill also was high.

       In the week before the murder, Supiping and her younger son went to stay at her

mother's house, while the older son, who was approximately seven years old, stayed with

Dang. Dang cried frequently regarding her departure, telephoned her often, and enlisted

her brother to talk to her about her excessive chat line calls and the need to keep their

family together. Around that time, Dang was further upset to learn from his older son

that Supiping had taken their children with her on dates with men from the chat line.




2      The record includes conflicting evidence regarding the size of the first telephone
bill and who paid it. Dang's stepfather testified Dang paid the approximately $1400 bill.
Dang told police his stepfather, who was sick and unemployed, paid the bill that was
approximately $400. Dang also said the following month's bill was approximately
$1300.
                                              3
       On August 10, 2010, Supiping's brother drove her back to Dang's house between

8:00 p.m. and 9:00 p.m. Dang went to hug Supiping but she told him, "Don't touch me."

Dang began to laugh. The brother noticed Dang appeared to have been drinking. He told

Supiping and Dang not to argue.

       Dang's stepfather, Larry McNeil, also noticed Dang had been drinking alcohol that

night. Therefore, he spoke to Dang for approximately 30 minutes, advising him not to

argue with Supiping. Dang assured him he was going to bed and would not argue or

cause any problems. Dang went to his bedroom, which was located in a downstairs

section of the split level house. Approximately 45 minutes to an hour later, Dang's

stepfather heard a loud scream coming from Dang's room and rushed there. Supiping

was bleeding and sitting slumped on the bed. She said Dang had stabbed her and left.

The couple's two sons were asleep on the bed next to Supiping. Dang's stepfather called

911. When an ambulance arrived minutes afterwards, Supiping was unconscious and had

no pulse. She died shortly afterwards.

       Approximately an hour and a half after the stabbing, Dang telephoned his

stepfather, who told him to turn himself in to police. Dang refused. About half an hour

later, Dang telephoned his stepfather again and they agreed to meet. The police

accompanied the stepfather to the meeting, where they detained and arrested Dang.

Dang's Police Interview

       The next morning, police interviewed Dang. The interview videotape was played

for the jury. Dang said he started using the chat line and introduced Supiping to it and

she got "hooked on" it, resulting in large telephone bills. Dang told police that Supiping

                                             4
had met about three or four men, and therefore she had no respect for him or their

children, whom she had taken along with her to the meetings.

      When Supiping was staying at her family's house in the days before the murder,

Dang had telephoned her often to ask about their younger son and speak with him. Dang

said Supiping started yelling and she "get attitude with me." She told Dang: "Why are

you worried about it? Why—why are you calling all the time?"

      Dang stated that the night of the murder, he had drunk some beer. During their

argument, he started talking to Supiping about the phone bill. She got mad and started

"getting attitude" with Dang, saying, "I don't wanna talk about that." Supiping hit Dang

with a stick, which he managed to grab. He got "pissed off," climbed up the stairs to the

kitchen, got a knife, returned to the bedroom and stabbed her in the neck and chest an

estimated three or four times. Supiping was sitting up while Dang was stabbing her and

she told him, "Leave me alone" and, "Stop." He did not realize she would die. He told

police he loved Supiping and did not mean to kill her; rather, he did not know what he

was doing. After the stabbing, Dang went for a walk and realized, "[O]h, oh, oh, I

messed up." He threw the knife in a rain gutter.

      During the interview, a detective asked Dang to explain the difference between

right and wrong. Dang explained that the right thing to do was to "just walk away, call

the police," adding, "or just walk away, get some fresh air. When I calm down, just go

home." Dang explained that to hit somebody is wrong. Dang acknowledged to police:

"I gonna get locked up. I know what I did was wrong. I realize that." At the end of the



                                            5
interview, Dang said that if police let him see his sons, he would show police exactly

where he had thrown away the knife. Dang later helped police locate the knife.3

Police Investigation and Forensic Evidence

       A police officer searched Dang's bedroom, a laundry room and another room in

the house but did not find the stick that Dang mentioned in his interview. The police

officer acknowledged he did not search the entire house or ask the family members,

paramedics or other police officers about the stick.

       Criminalist Annette Peer had examined and reconstructed the crime scene. She

testified that based on the blood stains found in the bedroom, Supiping was stabbed either

while she was sitting or lying on the bed.

       A pathologist performed the autopsy and testified there were nine stab wounds on

Supiping's torso and extremities, and a number of cuts on her extremities. He stated,

"four of the nine wounds penetrated into the chest cavity. And there were injuries to her

left lung, the main pulmonary artery which is a large blood vessel coming off of the heart,

the aorta, and a portion of the left shoulder blade was cut, and also a rib was cut." He

concluded the manner of death was homicide and the cause of death was multiple stab

wounds.

Defense Case

       Dang's mother, My McNeil (McNeil), testified Dang was born in Vietnam in

1975, and his father is an American. Dang could not walk until he was six years old.


3      The prosecutor described the weapon in closing argument as "a long, sharp knife,
perfect for cutting meat."
                                             6
There were no doctors available to treat him in Vietnam at that time. Many times

children chased and beat Dang because he was of mixed race. He studied in school for

about three years but was unable to learn. Dang and his mother spent approximately

seven months in a refugee camp in the Philippines. In 1986, they moved to the United

States.

          Dang's mother testified Dang has received psychiatric treatment since he was

eleven years old. He attended special education classes in the United States but never

learned to read and write. He never made close friends. He and Supiping had been

happy together until the problems with the chat line began. McNeil overheard one of

Supiping's telephone conversations and described it as "very sexual."

          When Dang's older son told him that Supiping had taken him to meet her dates,

Dang became very sad because he loved Supiping very much. Dang cried every day she

was away, and told his mother he did not know what to do. McNeil advised him, "Just let

her be, because, you know, if you're trying to keep her, you are just keeping her body

physically but not her soul." Dang responded, "Okay" but McNeil was unsure whether

Dang understood her advice.

Expert Witness Testimony

          In 1987, psychologist Jeremy Madoff evaluated Dang, who was 11 years old, but

appeared immature for his age. Dang also appeared sad, and Dr. Madoff concluded it

was "related to issues of loss, rejection and fears of abandonment." Dr. Madoff

recommended that Dang receive psychotherapy.



                                              7
       Psychiatrist Trang Nguyen testified she started treating Dang in 2001. She

adopted the previous psychiatrist's diagnosis of Dang as having "hallucination, irrational

thinking, disorganized behavior" and "schizophrenia, undifferentiated." Dr. Nguyen

initially diagnosed Dang with psychosis not otherwise specified but she reverted to the

schizophrenia diagnosis. Dr Nguyen described Dang as exhibiting "primitive" and

"immature thinking," and being "impulsive." Dr. Nguyen noted Dang had improved after

he was prescribed the drug Risperdal. In the last year before Supiping's death, Dang did

not miss any appointments with her. Moreover, he had better eye contact and acted

appropriately until the sessions ended and he was dismissed. Dang was proud of

Supiping and his children and seemed happier after his second son's birth.

       Forensic and clinical psychologist Clark Clipson evaluated Dang in January 2006,

and interviewed Dang's mother and stepfather. Dr Clipson testified regarding the

hardships Dang experienced in Vietnam, and the fact Dang was enrolled in special

education classes and completed up to the 11th grade in the United States. A social

service agency evaluated Dang, concluding his mental age was between six and eight

years old. Dr. Clipson said Dang was a loner who had never kept a job for long. Dang's

emotional and behavioral problems caused him to become easily frustrated and exhibit

aggressive tantrums.

       Dr. Clipson testified Dang had difficulty controlling his impulses, and "if [Dang]

wants something, he wants it now." He testified Dang suffered from seizures and

depression. Dr. Clipson asserted that every medical professional who administered an

I.Q. test to Dang diagnosed him with "mild mental retardation," which is "by convention

                                             8
defined as I.Q. scores from 55 to 70." Dr. Clipson testified Dang's "overall I.Q. score

was 62. There was a significant difference between his score on measures of

performance I.Q. as opposed to those that measure verbal skills. His performance I.Q.

was a 69. [¶] . . . Those tests are . . . relatively free of factors related to culture,

language and educational background, whereas the verbal tests obviously are more

dependent on those kinds of factors. His verbal I.Q. was a 54."

       Dr. Clipson diagnosed Dang with adjustment anxiety disorder and "mild mental

retardation, as well as personality disorder not otherwise specified with avoidant and

dependent features." Dr. Clipson elaborated: "In Mr. Dang's case, he's overly dependent

on other people and relies on others to make decisions for him, to take care of him, to

meet his daily needs. And that's not necessarily inappropriate given his developmental

and cognitive functioning. But it simply conveys that he's unable to make decisions for

himself and take care of himself in the way that most people could. [¶] He's also

avoidant in the sense that . . . he's had a number of negative social experiences between

his biological grandfather, the abandonment by his father and negative peer experiences,

so he is reluctant to spend time with other people to make new friends because he's afraid

he's not going to be liked. And so he avoids being around other people unless he has that

kind of reassurance that he's going to be accepted."

       Clinical psychologist Pauline Hsieh counseled Dang from 2006 to 2009, and

concluded he had below average I.Q. During those three years, Hsieh taught Dang anger

management skills. Dang reported to Hsieh that he was using the coping skills she had

taught him, and would walk away to deal with his anger. By 2009, Dang showed

                                                9
improved judgment by attending group sessions regularly and seeing his doctor for

medications. In a 2009 mental status exam, Hsieh classified Dang's insight as

"adequate," and gave him the highest possible rating of "normal" for his judgment.

       Psychologist Katherine Di Francesca evaluated Dang in 2011 and diagnosed him

with psychosis not otherwise specified, mild mental retardation and alcohol abuse.

Relying on a hypothetical that tracked the facts of Supiping's murder, she testified it was

unlikely the perpetrator would have specifically intended to kill the victim; instead, he

likely acted rashly. On cross-examination, relying on the same hypothetical as on direct

examination, Dr. Di Francesca testified the perpetrator would have known the nature and

quality of his acts, and that he was stabbing a human being who was his loved one. She

testified that the perpetrator's decision to go to the kitchen for a knife could be considered

"goal-directed behavior." Further, he would have acted in a "frenzy" when he stabbed his

victim nine times.

Motion for New Trial or Modification of Verdict

       Dang moved for a new trial under section 1181 on grounds he did not commit

second degree murder because he acted from heat of passion. Pointing to his mental

condition, intoxication, and Supiping's decision to date other men, he concluded that the

evidence, at best, proved he had committed voluntary manslaughter. The People opposed




                                             10
the motion, arguing sufficient evidence supported the verdict, and Dang had acted with

malice. The court denied the motion.4




4       In denying the new trial motion, the court reasoned: "[I]t was pretty clear at the
time of [Dang's police] interview that he knew what he had done and why . . . . He talked
in that interview about [Supiping] cheating on him and taking the kids on at least one of
the dates, and . . . he was angry as a result of that. He did perseverate with respect to him
loving her and how mad he was about that. But he claimed . . . both this anger over that
but also self-defense, his assertion that she had hit him with a stick. My view of the
evidence, frankly, I don't find that very credible. Seemed like an unlikely scenario that
she allegedly possibly brought this stick in from outside or somewhere else. There wasn't
a stick found. But I do agree with [defense counsel] . . . that it was [a] pretty weak search
of the house for an alleged stick that was maybe involved in the crime. The areas that
were searched did not reveal a stick. [¶] But in any event, he claimed that he was hit by
the stick, grabbed it and threw it down, and then went out of the room, went up the stairs
into the kitchen, found a knife, a large knife, came back down and went through what I
already discussed. [¶] So from that, I don't think it's unreasonable for a jury to conclude
that, whether or not he was angry and emotional . . . that he knew what he was doing. He
had the time. One, that he had the intent, his intent through all those actions was to get a
knife to come back to inflict deadly injury. But, also, that if he was responding initially
out of passion or emotion, that the time and thought that would accompany that trip into
the kitchen would negate it or could negate it. [¶] So the issue of whether or not the
evidence is sufficient to support the jury's verdict, I think it is sufficient to support the
jury's verdict for all the reasons I just said. [¶] . . . I was surprised when I watched the
interview at how together [Dang] was when I expected someone who was going to be, I
guess, less coherent given his mental health issues in his background. [¶] Also note that
he negotiated with the officers in a pretty savvy fashion regarding his efforts to see his
kids before he went off to jail. He was making an attempt to exchange information about
the location of the knife in exchange for one last visit with his kids, and that ended up not
happening. But he had quite a back and forth about that. "
        The court concluded, "But looking at the evidence independently and weighing the
evidence, you know, I find the evidence to be believable. That series of events that
preceded and during and then after the actual attack to me shows someone who did intend
to inflict those injuries that put [Supiping's] life in jeopardy and was not solely out of
impulse and out of no control at all. So I don't find cause to grant a new trial under
[section 1181]." For the same reasons, the court denied Dang's motion to modify the
verdict to voluntary or involuntary manslaughter.

                                             11
                                      DISCUSSION

                                             I.

       Dang contends that as a matter of law the evidence was insufficient to support a

finding he acted with malice aforethought; rather, pointing to the combined effects of his

mental retardation, mental illness and intoxication, he claims, "There was overwhelming

evidence in this case of 'diminished actuality' to show that [he] actually lacked the mental

state of malice aforethought to support a murder conviction." He further argues that as a

matter of law, Supiping's killing was involuntary manslaughter because it occurred

without malice in the commission of an inherently dangerous assaultive felony.

       Applicable Law

       Here, the court instructed the jury on the law regarding murder with CALCRIM

Nos. 500 [homicide]; 520-521 [first or second degree murder with malice aforethought

and first degree murder]; 505 [self-defense]; 570 voluntary manslaughter: heat of

passion]; 571 [voluntary manslaughter: imperfect self defense] and 580 [involuntary

manslaughter].

       First degree murder is an unlawful killing with malice aforethought,

premeditation, and deliberation. (People v. Chun (2009) 45 Cal.4th 1172, 1181.) Second

degree murder is an unlawful killing with malice, but without the elements of

premeditation and deliberation. (Ibid.) Malice may be express (intent to kill) or implied

(intentional commission of life-threatening act with conscious disregard for life). (Ibid.)

To reduce the offense to second degree murder, premeditation and deliberation may be



                                             12
negated by intoxication or heat of passion from provocation. (People v. Carasi (2008) 44

Cal.4th 1263, 1306; see People v. Hughes (2002) 27 Cal.4th 287, 342.)

       Even when a defendant has the intent to kill or conscious disregard for life, a

homicide may be further reduced to voluntary manslaughter in limited, explicitly defined

circumstances that are viewed as negating malice. (People v. Moye (2009) 47 Cal.4th

537, 549; People v. Lasko (2000) 23 Cal.4th 101, 107-109.) For voluntary manslaughter,

malice is deemed to be negated by the defendant's (1) heat of passion arising from

provocation that would cause a reasonable person to react with deadly passion, or (2)

unreasonable but good faith belief in the need to act in self-defense (imperfect self-

defense). (Ibid.) Under these two limited circumstances, malice is negated even though

the lethal act was committed with the intent to kill or conscious disregard for life that

otherwise establishes malice. (See People v. Bryant (2013) 56 Cal.4th 959, 968; People

v. Rios (2000) 23 Cal.4th 450, 460-461, 467.)

       An unlawful homicide without intent to kill and without conscious disregard for

life is involuntary manslaughter. (People v. Butler (2010) 187 Cal.App.4th 998, 1006.)

Involuntary manslaughter can arise from a lawful act, a misdemeanor, or a noninherently

dangerous felony committed with criminal negligence; that is, aggravated, reckless

conduct that creates a foreseeably high risk of death. (Id. at pp. 1006, 1008.)

       "To support a defense of 'diminished actuality,' a defendant presents evidence of

voluntary intoxication or mental condition to show he 'actually' lacked the mental states

required for the crime." (People v. Clark (2011) 52 Cal.4th 856, 880, fn. 3.) "[T]he jury

may generally consider evidence of voluntary intoxication or mental condition in

                                             13
deciding whether defendant actually had the required mental states for the crime."

(People v. Steele (2002) 27 Cal.4th 1230, 1253.) A verdict of involuntary manslaughter

is warranted where the defendant demonstrates " 'that because of his mental illness . . . he

did not in fact form the intent unlawfully to kill (i.e., did not have malice aforethought).' "

(People v. Rogers (2006) 39 Cal.4th 826, 884.) Voluntary intoxication, however, cannot

negate implied malice. (People v. Turk (2008) 164 Cal.App.4th 1361, 1376-1377.)

       When a defendant challenges his or her conviction for insufficient evidence on

appeal, we apply the substantial evidence standard of review. "Under this standard, the

court 'must review the whole record in the light most favorable to the judgment below to

determine whether it discloses substantial evidence—that is, evidence which is

reasonable, credible, and of solid value—such that a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt.' [Citations.] The focus of the substantial

evidence test is on the whole record of evidence presented to the trier of fact, rather than

on ' "isolated bits of evidence." ' " (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)

We "must presume in support of the judgment the existence of every fact the trier could

reasonably deduce from the evidence." (People v. Jones (1990) 51 Cal.3d 294, 314.)

"The standard of review is the same in cases in which the People rely mainly on

circumstantial evidence." (People v. Stanley (1995) 10 Cal.4th 764, 792.)

       Because there is rarely direct evidence of a defendant's knowledge (People v.

Buckley (1986) 183 Cal.App.3d 489, 494-495) or intent (People v. Chinchilla (1997) 52

Cal.App.4th 683, 690), these matters generally must be established by circumstantial

evidence and the reasonable inferences to which it gives rise. (People v. Smith (2005) 37

                                              14
Cal.4th 733, 741.) "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. [Citation.] We resolve neither credibility issues nor

evidentiary conflicts; we look for substantial evidence." (People v. Maury (2003) 30

Cal.4th 342, 403.)

Analysis

       We conclude that substantial circumstantial evidence supported the jury's finding

Dang stabbed Supiping with implied malice: In the few hours between Supiping's return

to Dang's house and when she was killed, two people specifically warned Dang not to

argue with her. Supiping's brother did so first, and afterwards, approximately one hour

before the murder, Dang's stepfather did so. Nevertheless, Dang elected to argue with

Supiping. When the argument escalated, Dang left the bedroom, climbed upstairs,

entered the kitchen, selected a large knife that could inflict harm, returned to the

bedroom, and stabbed Supiping nine times, including in the neck and chest. (See People

v. Moore (2002) 96 Cal.App.4th 1105, 1114 [finding that stabbing a victim in "an

extremely vulnerable area of the body" provided substantial evidence of an intent to kill.]

She pleaded that he stop and leave her alone. Dang evinced consciousness of guilt by

immediately fleeing the house and throwing away his weapon. The jury was instructed

regarding consciousness of guilt and flight with CALCRIM Nos. 371 and 372

respectively. On this record, Dang's documented mental illness and intoxication did not



                                              15
preclude the jury from finding he acted with malice aforethought and thus he committed

second degree murder.

                                             II.

       Dang alternatively contends that any finding of malice aforethought was negated

by overwhelming evidence that he acted out of heat of passion and during a sudden

quarrel; therefore, his murder conviction must be reduced to voluntary manslaughter.

Specifically, Dang argues: "The suddenness of the stabbing incident is undisputed. It is

also undisputed that [he] and [Supiping] argued immediately before the stabbing.

[Supiping] was angry when she arrived at [his] house because her brother . . . lectured her

about her use of the chat lines, and [Dang] was persistent in his efforts to discuss the

matter with her. [Dang] tried to hug [Supiping] when she returned . . . home, but she

brushed him off and told him not to touch her. [Supiping] refused to talk to [him] or

anyone else about her infidelity and excessive use of the chat lines, incurring exorbitant

phone bills they could not afford to pay. [¶] Uncontroverted evidence was presented at

trial that [Dang] was visibly distraught in the days and weeks before the killing,

particularly during the time [Supiping] left the McNeil home to stay with her family.

[Dang] was unconsolable and cried every day. He also called [Supiping] and [her

brother] daily during the time [Supiping] was with her family, but [Supiping] refused to

talk to him."

Applicable Law

       The California Supreme Court explained the law regarding heat of passion: "An

unlawful killing is voluntary manslaughter only 'if the killer's reason was actually

                                             16
obscured as the result of a strong passion aroused by a "provocation" sufficient to cause

an " 'ordinary [person] of average disposition . . . to act rashly or without due deliberation

and reflection, and from this passion rather than from judgment.' " [Citations.]'

[Citation.] 'The provocation must be such that an average, sober person would be so

inflamed that he or she would lose reason and judgment. Adequate provocation . . . must

be affirmatively demonstrated.' " (People v. Thomas (2012) 53 Cal.4th 771, 813.)

       "The heat of passion requirement for manslaughter has both an objective and a

subjective component. [Citation.] The defendant must actually, subjectively, kill under

the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion

are also viewed objectively. . . . '[T]his heat of passion must be such a passion as would

naturally be aroused in the mind of an ordinarily reasonable person under the given facts

and circumstances,' because 'no defendant may set up his own standard of conduct and

justify or excuse himself because in fact his passions were aroused, unless further the jury

believe that the facts and circumstances were sufficient to arouse the passions of the

ordinarily reasonable man.' " (People v. Steele, supra, 27 Cal.4th at pp. 1252-1253.)

       In addition, "the killing must be 'upon a sudden quarrel or heat of passion'

[citation]; that is, 'suddenly as a response to the provocation, and not belatedly as revenge

or punishment. Hence, the rule is that, if sufficient time has elapsed for the passions of

an ordinarily reasonable person to cool, the killing is murder, not manslaughter.' "

(People v. Daniels (1991) 52 Cal.3d 815, 868, italics added.)

       The California Supreme Court has stated that adequate provocation for voluntary

manslaughter cannot be shown "where the act that allegedly provoked the killing was no

                                             17
more than taunting words, a technical battery, or slight touching." (People v. Gutierrez

(2009) 45 Cal.4th 789, 826.) The Gutierrez court explained, "Defendant testified that he

told [the victim], '[g]et off me, you f . . . ing bitch,' and that she 'cuss[ed] back at' him.

We have held that calling the defendant 'a "mother f . . . er" and . . . repeatedly asserting

that if defendant had a weapon, he should take it out and use it . . . plainly were

insufficient to cause an average person to become so inflamed as to lose reason and

judgment.' [Citation.] . . . [¶] Defendant also testified that [the victim] scratched his

chest, he kicked her, she kicked him in the leg and grabbed his shirt, and he pulled away.

Simple assault, such as the tussle defendant described, also does not rise to the level of

provocation necessary to support a voluntary manslaughter instruction." (Id. at p. 827.)

Analysis

       Even viewing the evidence in the light most favorable to Dang, we conclude there

was insufficient evidence of actual provocation by Supiping so as to provide an objective

basis for reducing Dang's murder conviction to manslaughter based on heat of passion.

The couple's problems began weeks before the murder, and related to Supiping's use of

the chat line, her incurring high phone bills and, later, her reportedly taking her children

to meet her dates.

       Supiping's decision to stay at her mother's house for some days provided an

opportunity for Dang to cool down from any provocation caused by Supiping's calling the

chat lines and her high phone bills. There is no evidence that Supiping verbally taunted

Dang. To the contrary, though Dang unspecifically told police Supiping had an

"attitude," he also said her reaction to his scoldings was to refuse to discuss the matter.

                                               18
This case does not present anything close to the taunts found to be insufficient

provocation in People v. Gutierrez, supra, 45 Cal.4th 789. This case is also unlike

People v. Berry (1976) 18 Cal.3d 509, in which the court relied on the holding in People

v. Borchers (1958) 50 Cal.2d 321 to the effect that "evidence of admissions of infidelity

by the defendant's paramour, taunts directed to him and other conduct" supported a

finding that defendant killed in wild desperation induced by the woman's " 'long

provocatory conduct.' " (Berry, supra, at p. 513.)

       Dang's discovery that Supiping had reportedly taken the children with her on her

dates was not enough to make a reasonable person lose reason and judgment. In any

event, he had enough time to cool off from any inflamed passions in the time between his

discovery and Supiping's return from her mother's house.

       Finally, approximately one hour before the argument, Dang promised his

stepfather he would not argue or cause problems. Dang thus had an opportunity to avoid

an argument, but he did not take it. After the argument began, Dang was presented with

another opportunity to desist from committing the murder. Instead, he engaged in "goal-

directed behavior" of leaving the bedroom, climbing upstairs to the kitchen, selecting a

weapon, returning downstairs to the bedroom and stabbing her. The jury reasonably

concluded Dang acted with reason, and not because his judgment was overcome by

passions.

       Although Dang testified Supiping hit him with a stick, he told police he grabbed

the stick and thus he readily disarmed her. Like the Gutierrez court, we conclude that

this evidence—amounting to a simple assault—does not rise to the level of provocation

                                            19
that would cause a reasonable person in Dang's position to lose his judgment. (People v.

Gutierrez, supra, 45 Cal.4th at p. 826.) Therefore, the properly instructed jury did not err

in rejecting the heat of passion defense.

                                             III.

       Dang contends the trial court abused its discretion in not striking his prior strike

conviction under Romero, supra, 13 Cal.4th 497. He points out that experts at trial

documented his mental health problems, including his limited impulse control. Dang

reiterates the arguments he made below that the court should have struck his prior strike

"because his diminished mental capacity and mental illness reduce his personal

culpability, taking him outside of the spirit of the Three Strikes law." Regarding his

future prospects, he argues that if the court had struck the prior strike, he would have

received a more appropriate sentence of 15 years in prison, noting that he lacks the

mental capacity to be released back into society and will likely be a mentally disordered

offender for the rest of his life after he serves his prison term. Therefore, he concludes:

The only issue is "which facility best serves the interest of justice—a prison or a hospital

for 'mentally disordered offenders.' "

       Dang specifically contends: "[D]espite overwhelming, uncontroverted evidence of

[his] severe mental and emotional disabilities, the court speculated, absent supporting

evidence, that [he] may just be a 'mean-spirited thug' who has engaged in anti-social, self-

indulgent, violent behavior."




                                             20
Background

       At the hearing on Dang's section 1385 motion to strike, Dang's counsel argued that

Dang's mental illness played a role in the homicide and the prior strike: "Mr. Dang does

have a significant mental illness that, no matter how you look at this case, played a role in

the homicide. He would not be here today but for the fact that he has the mental illnesses

he suffers from. He wouldn't have the prior strike but for the mental illnesses he suffers

now. They all played a role in creating [Dang]."

       Further, relying on the probation report, defense counsel stated: "I think if we

punish Mr. Dang by sending him to prison for 15 years to life, that more than adequately

punishes Mr. Dang for the conduct he's engaged in in this case, in addition to the fact Mr.

Dang at least recognizes he's taken the life of the one woman he's truly loved in this. And

I think—I don't even think the prosecution is going to dispute the fact that Mr. Dang did

significantly love this person. [¶] It's going to—it's in addition to the sanction that Mr.

Dang is going to be separated from the only support and family he's ever known and

placed in a very violent environment. It's in addition to the punitive sanction that Mr.

Dang is going to be separated from the very young children that he loves dearly and that

he recognizes that. It is very—it is in addition to the extreme sanction that Mr. Dang

with all of his mental health issues is going to be placed in an environment he can't

possibly understand."

       The court asked the prosecutor to address the specific defense argument based on

Dang's "background and character and his prospects . . . how the longer incarceration

might affect him in a more significant way than it might someone otherwise situated."

                                             21
The prosecutor stated: "[F]irst of all, I want to say [Dang] is not a six-year-old child, he's

a 37-year-old man. He does have mild mental retardation, that's true, it's proven by all

the experts. But he's not a six-year-old boy. He's a man and he acts like a man, and he

acts like a criminal man, he's been doing it for a long time now. He's got a long history

of that. [¶] Defense uses the—his specific words are that this will have 'greater punitive

effect' on [Dang] as compared to somebody else. There is absolutely no evidence of that.

There is no way to know that putting [Dang] in prison compared to the average person on

the street is going to affect him mentally more severely than it would the other person."

       The court acknowledged Dang's difficult childhood: "[Y]ou know, I completely

agree, when I watch the evidence develop and be presented and hear this litany of

testimony about his background, I will say it was very sad. I mean very moving. He

[had] a horrible childhood . . . in Vietnam, coming over here and having more difficulties.

It was heart wrenching, no question about it."

       The court stated the impression it might have had of Dang separate from his

mental health problems: "But what surprised me when I looked at the probation report,

putting his—if I didn't have this mental health issue, he just looks like a criminal thug,

that's all he looks like. To say that his strike prior is, well, it wouldn't have happened if it

wasn't for his mental health issues, you know, I guess your point is it was a similar

situation, he was mad about something, acted out of impulse and couldn't help himself.

But he got into a dispute over a girl basically with another guy who told him sort of back

off his treatment of this woman. [Dang] drove and found the guy, got out of his car and

beat him with a baseball bat, and then got in his car and took off." (Italics added.) The

                                               22
court continued, "I guess you can argue that, hey, well, yeah, he did that, but he wouldn't

have done it if he didn't have these mental health issues. But maybe he wouldn't have

done it if he wasn't in some respects a mean-spirited thug. Maybe it was just that. There

were other incidents of violence and . . . at least I guess you could characterize it as sort

of violent behavior, this antisocial and self-indulgent behavior. [¶] I was surprised to

find that he's out driving, driving drunk, fleeing police, going to the local bars. I was

surprised by all of that. Then you have this background—in the background this

significant mental health issue. And is there that strong of a causal effect or is he a

person with mental health issues who happens to be sort of criminally minded and not

very mindful of his obligation to be law abiding and not attack other people?" (Italics

added.)

          The court expressed an understanding of defense counsel's argument regarding

Dang's mental health, stating: "I could see an argument that [Dang's] overall pathetic and

very difficult life arguably puts him outside the spirit [of the Three Strikes law] in the

sense of, look, instead of 30 to life, give him 15 to life, maybe he'll get some help down

the line that will benefit him and society." The court added, "Those of us who work in

the system could make a reasonable inference that someone who is dim-witted and slow

would be more vulnerable in prison than someone who isn't, and also not physically very

large."

          In its final ruling, the court relied on the probation report and summarized Dang's

criminal history, starting with the details underlying Dang's 2005 prior strike: "Looking

at the particulars of the prior strike conviction . . . the facts as they're related in the

                                                23
probation report include that . . . [Dang] had this friend named Vicky, who's also friends

with the victim in the strike case, the fellow named Macintosh. And they had—

apparently [Dang] had left some disrespectful and derogatory messages on Vicky's

answering machine. [¶] And on the day of the incident, Macintosh runs into [Dang] or

met [Dang], confronted him about calling Vicky and told him not to call her again. After

an argument, the victim left on foot. [Dang] followed the victim in his truck, stopped the

car next to the victim, got out of the car and assaulted him, hitting him about seven times

in the head, shoulders and arms with a baseball bat. [Dang] then fled the scene in his car.

And the victim managed to walk home where he called the police. At the victim's

residence they noted he had blood on his head and elbow, and some pain in his head and

shoulder area, and was taken to the hospital." The court noted Dang's prior strike was a

"serious strike:" "Dang ended up having a guy that I assume survived it well enough and

recovered from his injuries. But [Dang] tracking him down and pummeling him with a

baseball bat seven times in the head and shoulders is on the little more serious end of

the . . . continuum."

       The court referred to Dang's 2007 arrest for driving under the influence: "[Dang]

was charged with various offenses including assault and resisting arrest and evading. But

the essential facts of that was that he was driving and almost hit two pedestrians in a

crosswalk . . . . The officers conducted a traffic stop of him. And he pulled over but then

backed his car—after stopping, he then put his vehicle in reverse and backed into the

patrol car and then drove off, pursuit ensued, and he eventually pulled over and then ran.

He was apprehended outside of a house where a female came to the door and said he

                                             24
lived there. And there was some back and forth with that female, but the defendant was

arrested, struggled and was uncooperative and kicking the patrol car doors and screaming

and whatnot. There was some alcohol found in the car. He pled out to—I think just to a

D.U.I. in that case. Yeah, with alcohol allegations I believe."

       The court described Dang's act of vandalism in 2008: "[Dang] was charged with

vandalism for smashing the front window of a car that belonged to a victim, I believe in

his neighborhood, but the victim said that Dang . . . had been harassing him for some

time and they had a history of disagreements. [Dang] busted in the front window of—the

windshield of his car."

       The court continued: "And then in 2010 you have the instant offense. There were

a couple of other uncharged things having to do with [Dang], one with him being drunk

in public and being seen smashing a window of a car and then scratching the car, and it's

unknown what happened to that. . . . And the other was subsequent to the strike

conviction, he had an argument with somebody over rent money, it was his cousin, and

punched him in the back of the head five times. When Dang was questioned, he said that

the victim had fallen down and hit his head. Unknown what happened with that case, I'm

not sure why that is."

       The court concluded that after suffering the prior strike, Dang "[did not] perform

well being supervised"; rather, "he has continued conduct that is criminal in nature and

dangerous to society," including by committing the instant serious offense. Therefore,

the court denied the Romero motion, ruling: "Even with the mental health background



                                            25
and what I consider to be a very sympathetic initial history, I don't find him falling

outside the spirit of the scheme, the three strikes scheme." (Italics added.)

Applicable Law

       The purpose of the Three Strikes law is to ''ensure longer prison sentences and

greater punishment for those who commit a felony and have been previously convicted of

one or more serious and/or violent offenses.'' (§ 667, subd. (b).) A defendant who

commits any felony with one strike prior must be sentenced to twice the base term of the

current felony. (§ 667, subd. (e)(1).)

       Section 1385, subdivision (a) allows a court to dismiss strike priors in ''furtherance

of justice.'' There is a "legislative presumption that a court acts properly whenever it

sentences a defendant in accordance with the three strikes law." (People v. Carmony

(2004) 33 Cal.4th 367, 376.) Departure from this presumption will be justified by

extraordinary circumstances only. (Id. at p. 378.) The question is " 'whether, in light of

the nature and circumstances of his present felonies and prior serious and/or violent

felony convictions, and the particulars of his background, character, and prospects, the

defendant may be deemed outside the scheme's spirit, in whole or in part, and hence

should be treated as though he had not previously been convicted of one or more serious

and/or violent felonies.' " (Id. at p. 377.) We review the trial court's decision to not strike

a prior strike conviction for abuse of discretion. (Id. at p. 376.)

       As explained by the California Supreme Court, two legal principles guide our

review: First, " ' "[t]he burden is on the party attacking the sentence to clearly show that

the sentencing decision was irrational and arbitrary." ' " (People v. Carmony, supra, 33

                                              26
Cal.4th at p. 376.) If this is not shown, the trial court " ' "is presumed to have acted to

achieve legitimate sentencing objectives, and its discretionary determination to impose a

particular sentence will not be set aside on review." ' " (Id. at pp. 376-377.) Second, a

" ' "decision will not be reversed merely because reasonable people might disagree. 'An

appellate tribunal is neither authorized nor warranted in substituting its judgment for the

judgment of the trial judge.' " ' " (Id. at p. 377.) Thus, "a trial court does not abuse its

discretion unless its decision is so irrational or arbitrary that no reasonable person could

agree with it." (Ibid.) " '[W]here the record demonstrates that the trial court balanced the

relevant facts and reached an impartial decision in conformity with the spirit of the law,

we shall affirm the trial court's ruling, even if we might have ruled differently in the first

instance.' " (Id. at p. 378.)

Analysis

       We conclude the court acted well within its discretion in refusing to strike Dang's

strike prior. As set forth above, the court relied on the probation report documenting

Dang's lengthy criminal history, which it analyzed in light of the Romero factors. As

Dang acknowledges, the court's comments demonstrated its understanding of Dang's

childhood hardships.

       We recognize Dang regards the trial court's remarks comparing him to a "criminal

thug" as "unsupported speculation" going "contrary to the overwhelming evidence of

[Dang's] significantly impaired ability to think rationally and control his impulses," thus

indicating the court erred in its Romero analysis. But we disagree. Understood in

context, the court's statement was not objectionable as it was responding to defense

                                              27
counsel's assertion that Dang's mental illness played a role in Dang's prior strike and the

murder. The court merely questioned whether, and to what extent, Dang's criminal

conduct was instead attributable to a tendency to engage in thuggish behavior. We note

the court's ruling did take into account that "even with [Dang's] mental health

background," he did not fall outside the spirit of the Three Strikes law. Accordingly, we

discern no abuse of discretion.

                                              IV.

       Dang contends his sentence is cruel and usual punishment and grossly

disproportionate to his individual liability, arguing that because he was 37 years old at

sentencing, he "will serve most, if not all, of the 36-year portion of his indeterminate term

before he will be eligible for parole. He will be 73 years old by that time. [¶] There is

also a significant likelihood that [he] will not be eligible for parole at the earliest possible

date, because his severe mental and emotional disabilities impair his ability to understand

and comply with prison rules. Thus [he] will likely spend the remainder of his life in

prison."

       The People assert that Dang did not raise the issue of cruel and unusual

punishment in the trial court. Some courts have held that when the issue of cruel and

unusual punishment is not raised at the trial level, it is waived on appeal. (People v. Ross

(1994) 28 Cal.App.4th 1151, 1157, fn. 8; People v. DeJesus (1995) 38 Cal.App.4th 1,

27.) Nevertheless, we will assume Dang did not waive the contention on appeal.

       A sentence violates the constitutional proscription against cruel and/or unusual

punishment if the punishment is grossly disproportionate to the severity of the crime or

                                               28
the defendant's individual culpability, or it shocks the conscience and offends

fundamental notions of human dignity. (People v. Hines (1997) 15 Cal.4th 997, 1078;

People v. Russell (2010) 187 Cal.App.4th 981, 993.)

       When evaluating the constitutionality of a punishment, the court examines the

circumstances of the offense, extent of the defendant's involvement, manner in which the

crime was committed, and consequences of the defendant's acts, as well as the

defendant's personal characteristics, including age, prior criminality, and mental

capabilities. (People v. Hines, supra, 15 Cal.4th at p. 1078.) On appeal, we view the

facts in the manner most favorable to the judgment and resolve the issue as a matter of

law. (People v. Martinez (1999) 76 Cal.App.4th 489, 496.) The "[d]efendant must

overcome a 'considerable burden' to show the sentence is disproportionate to his level of

culpability. [Citation.] Therefore, '[f]indings of disproportionality have occurred with

exquisite rarity in the case law.' " (People v. Em (2009) 171 Cal.App.4th 964, 972.)

       Dang's claim of unconstitutionality is unavailing. First, it does not shock the

conscience that he was sentenced to an indeterminate term of 30 years to life for fatally

stabbing his unarmed cohabitant. The sentence serves the legitimate purpose of

protecting society from any further violent conduct by him. As noted, Dang's past

criminal conduct was documented at the Romero hearing.

       Second, the record before us does not compel a finding that his mental deficits

were so severe that his moral culpability for the shooting was reduced. Dang told police

that he had done wrong and he would be locked up. Further, Dr Di Francesca testified

Dang had engaged in purposeful, goal-directed behavior when he went to the kitchen for

                                            29
the knife. Notably, Dr. Nguyen testified Dang's mental health had improved after he

began taking Risperdal. Lastly, Hsieh testified that in the year before the murder, Dang's

judgment had improved to the point that she regarded it as "normal."

       Third, even assuming Dang was viewed as less morally culpable due to his mild

mental retardation, he has not shown that imprisonment for the remainder of his life is

cruel or unusual punishment. The cases he has cited to support his argument are

distinguishable. For example, in Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455,

2460, 2466-2469], the United States Supreme Court held that under constitutional

proportionality principles, when sentencing juvenile offenders for murder, trial courts

should not be required to impose life sentences without the possibility of parole, but

rather should have the discretion to select (for example) life sentences with the possibility

of parole based on the defendant's youth and the circumstances of the crime. Miller did

not establish a blanket rule that a cognitively-deficient defendant who commits murder

cannot constitutionally receive a sentence that does not allow for parole. (See Miller,

supra, 567 U.S. ___ [132 S.Ct. at pp. 2465-2470] [categorical bar on life without parole

for juveniles applies only to nonhomicide offenses; homicide offenses committed by

juveniles require individualized sentencing decision]; People v. Gutierrez (2014) 58

Cal.4th 1354, 1389-1390 [discretionary life without parole sentence may be imposed on

juvenile for homicide offense upon consideration of relevant factors].) Moreover, unlike

juveniles—for whom mandatory life without parole sentences are precluded due to the

prospects for rehabilitation as their brains develop (Miller, supra, 567 U.S. ___ [132

S.Ct. at pp. 2460, 2465-2468])—Dang has not shown his mental condition could be

                                             30
improved to make him safe if released so as to constitutionally mandate consideration or

imposition of a sentence that might realistically allow for his release.

       Also, Dang's citations to cases precluding death sentences for mentally retarded

persons and juveniles (see Atkins v. Virginia (2002) 536 U.S. 304, 318-321; Roper v.

Simmons (2005) 543 U.S. 551, 568-575) do not advance his position because he was not

sentenced to death. Indeed, sentences of life without parole—rather than death—have

been deemed appropriate for mentally retarded or brain damaged defendants. (See, e.g.,

§ 1376, subd. (c)(1) [intellectually disabled defendants who commit capital offense must

be sentenced to life without parole, not death]; Crook v. State (Fla. 2005) 908 So.2d 350,

358-359 [for constitutional proportionality reasons, death sentence reduced to life without

parole for brain-damaged defendant].) These sentencing dispositions implicitly recognize

that in appropriate circumstances it is not cruel or unusual punishment to send a

defendant with mental deficits to prison for the rest of his or her life.




                                              31
                                 DISPOSITION

     The judgment is affirmed.




                                               O'ROURKE, J.

WE CONCUR:


McCONNELL, P. J.


NARES, J.




                                     32
