Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA342171)
APPEAL from a judgment of the Superior Court of Los Angeles County, Clifford L. Klein, Judge. Affirmed as modified.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant, Howard Huh, was convicted by a jury of second degree murder. (Pen. Code, § 187, subd. (a).) The jury found defendant personally and intentionally discharged a firearm proximately causing Alex Huh's death. (§ 12022.53, subds. (b), (c) & (d).) Defendant was sentenced to 40 years to life in state prison. Defendant contends the trial court improperly denied his new trial motion and abused its discretion in denying his post-trial motion for juror identification information. Defendant further asserts there was insufficient evidence he committed second degree murder. We reject the contentions, modify the judgment in part and affirm as modified.
All further statutory references are to the Penal Code except where otherwise noted.
A. Prosecution Evidence
Defendant and the victim's family had been in business together for 20 years. In 1988, the victim's parents, Yang Cha Kim (Dr. Kim) and Chang Bum Huh, hired defendant to manage their spa. Chang passed away ten years later, in August 1998. Following Chang's death, disagreements arose between defendant and Dr. Kim over the spa's management. Among other things, defendant repeatedly threatened to report a purported water rights problem to municipal authorities. In addition, Dr. Kim wanted her sons—Alex and Eddie Huh—to be involved in the business. Defendant was opposed. Eddie's and Alex's relationships with defendant were not good. When Dr. Kim asked her sons to perform repairs at the spa, defendant became angry. In addition, Dr. Kim came to believe defendant had deceived her about the purported water rights problem in an effort to retain control of the business.
Several individuals involved in this case, including defendant and the victim, have the same last name, Huh. To avoid confusion, we refer to those individuals (other than defendant) by their first names. Defendant is not related to the victim or his family.
On April 14, 2005, and into the morning of April 15, 2005, the Huh sons performed tile repair work at the spa. Alex recorded the repairs. An edited version of the videotape was played at trial. On the videotape, defendant was heard insulting Alex in Korean, calling him a midget and a son of a bitch. Defendant threatened to call the police. After defendant left the spa, police officers appeared. They briefly detained but then released Alex. Shortly thereafter, defendant obtained a restraining order against Alex to prevent him from entering the spa. Dr. Kim asked defendant to stop working at the spa as of April 15, 2005. Defendant responded with a letter acknowledging that Dr. Kim owned the business and pleading with her to allow him to continue as its manager, at least for one year.
Defendant and the Huhs filed cross-actions against each other in a civil case arising out of the business disputes. Defendant sought a judicial determination he had a partnership interest in the business and an ownership interest in certain real property connected with the spa. By the beginning of June 2005, defendant was no longer managing the spa, but, pursuant to court order, he was allowed to maintain his office there. There was also some evidence defendant was living there.
A further altercation between defendant and Alex occurred on June 5, 2005, in the spa parking lot. Eddie learned about the incident when he saw a videotape Alex had recorded at the time. According to Eddie, the videotape showed defendant aggressively advancing toward Alex and flailing his arms as Alex stepped backward away from defendant. Defendant hit Alex, then grabbed Alex's cellular telephone and threw it to the ground. Police officers were summoned and Alex filed a report.
While the lawsuit was pending, defendant repeatedly threatened Dr. Kim and members of her family, both verbally and nonverbally. Defendant repeatedly threatened Dr. Kim, "If I lose this lawsuit, I will not leave you guys alone." During defendant's deposition, Eddie and his attorney, Lee Ackerman, saw defendant "pointing at all of us in a firing motion." He was sitting at a conference table and his hands were near his lap. He pantomimed firing a handgun at them. During the litigation, the family learned that defendant owned and possessed guns. They so advised their attorney, who spoke to defendant's attorney about it. During a settlement conference, defendant walked past Eddie and Alex and said, "You will soon see your [deceased] father." Dr. Kim was also present at the time. Eddie understood defendant's statement as a threat to kill them.
The litigation lasted more than three years, from 2005 to 2008. The civil jury ultimately found defendant was not a partner in the business and did not own any real property connected with the spa. The civil trial court ordered defendant to release any interest he had in spa real property. The court also ordered defendant to, on or before May 29, 2008, remove his personal belongings from the spa property and vacate his office. Defendant failed to comply with that order. A new move-out date was set for June 15, 2008.
Defendant arrived at the spa on June 15, 2008, around 10:30 a.m. Eddie and Alex let him into his former office to pack his belongings. In the ensuing hours, defendant repeatedly requested that Eddie, Alex and Dr. Kim meet with him in his second floor office. Around mid-day, Alex telephoned Eddie who was out running errands. Alex said he was waiting for Eddie to return so they could go upstairs together to defendant's office and tell him to hurry up. When Eddie said he was busy, Alex responded that he would take care of it on his own.
Sometime after 12 noon, Alex and defendant conversed in the spa reception and waiting areas, then proceeded toward the stairs to defendant's office. Shortly thereafter, the receptionist heard two loud noises about five seconds apart coming from defendant's office. Fifteen to twenty minutes later, at 12:55 p.m., defendant came downstairs and asked the receptionist to call the police. He had dust or dirt on his back. It looked like he had fallen.
Defendant proceeded to the Hollywood Division police station where he reported that he had shot someone. He said, "I shot him, I just shot him" and "I lost it. I shot him." Defendant had what appeared to be blood on his pants, his left shirt sleeve, his shirt pocket and his left hand. There appeared to be dirt on the back of his shirt.
Alex died of a gunshot wound to his neck and a second, close-range wound to his back. Both wounds were fatal. The murder weapon, a fully loaded Glock semiautomatic pistol, was registered to defendant. The firearm was found on the other side of the room, away from the victim's body, in a refrigerator. A loaded magazine was found on the ground next to the victim. One of two spent shell casings was discovered about six feet away.
In a recorded interview with detectives on June 15, 2008, defendant admitted he shot Alex. He claimed to have mistaken Alex for an intruder. He said he saw a big man dressed all in black enter the barely lit room. He thought the individual wanted to steal his things. He shouted in Korean, "Get out," but the man kept coming toward him. Defendant retrieved a fully loaded gun from a hiding place before he saw the stranger because he had a "bad feeling." He fired his weapon twice. Only afterward did defendant discover the person he mistook for an intruder was in fact Alex. At the time of his death, Alex was five feet, seven inches tall and weighed about 213 pounds. He was wearing a white shirt and khaki shorts.
Detective Rolanda Rodriguez asked defendant to remove his shirt. Detective Rodriguez observed scratch marks on the side of defendant's neck going down to his lower back and on his arm. He also had blood on his clothing. Defendant said the scratches were due to his diabetes. Defendant denied he had been fighting with anyone. Defendant's DNA was not found in tests of the victim's nail clippings.
B. Defense Evidence
1. John Pride
John Pride testified as a defense firearms expert. He visited the crime scene on March 30, 2009 around mid-day and took photographs. Mr. Pride described the lighting in the room. The room had an atrium with two large windows and two doors. The lights were off when he walked in. It was "a subdued room with partial lighting, ambient light." When he turned the lights on, the room was "bright."
Mr. Pride opined that defendant's statements during his police interview were consistent with the evidence. Although there was no way to know for certain, Mr. Pride believed Alex had been shot first in the neck and then in the back. Both shots were at close range, but the shot to the back was closer, fired from about six inches away.
Mr. Pride was familiar with defendant's Glock semiautomatic weapon. Mr. Pride testified the gun could have gone off during a struggle. If one person had their finger on the trigger and another person grabbed the barrel of the gun it was likely to fire. Mr. Pride conceded, however, that defendant never said during his police interview that Alex grabbed his gun. Mr. Pride further agreed that the hypothetical struggle was inconsistent with the gunshot wound to the victim's back.
2. Law enforcement personnel
Los Angeles Police Officer Wes Lin observed defendant at the Hollywood Division on June 15, 2008. Defendant was arguing with a female officer at the front desk, yelling, waiving his hands in the air and pacing back and forth. At first Officer Lin thought defendant was mentally ill. Eventually, defendant said he had shot someone. When Officer Lin arrived at the shooting location, he could clearly see the victim lying on the floor despite the "dimly lit" room.
Los Angeles Police Officer Mike Nelson was the first to arrive at the crime scene. He believed the ceiling lights were off at the time. He wrote in his report, "Overhead interior light bulbs, I did not turn any on, sky light." He was able to see the victim without any difficulty.
Hardy Muller worked for the Los Angeles Police Department's scientific investigation division, electronic section. At the request of a detective, Mr. Muller extracted video evidence from the spa's surveillance system corresponding to June 15, 2008. The video evidence was presented at trial.
A. The New Trial Motion
Defendant sought a new trial on grounds it was prejudicial error to exclude certain evidence and the prosecutor committed prejudicial misconduct by relying on that evidence in closing argument. The trial court denied the motion. On appeal, defendant contends this was error that violated his state and federal due process rights. We find no abuse of discretion and no constitutional violation.
Pursuant to section 1181, subdivision 5, a new trial may be granted "[w]hen the [trial] court has . . . erred in the decision of any question of law arising during the course of the trial, and when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury[.]" "'We review a trial court's ruling on a motion for a new trial under a deferential abuse-of-discretion standard.' [Citations.] '"A trial court's ruling on a motion for new trial is so completely within that court's discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion."' [Citations.]" (People v. Thompson (2010) 49 Cal.4th 79, 140.)
Defendant cites People v. Albarran (2007) 149 Cal.App.4th 214, 225, for the proposition that, "[D]e novo review applies to denial of a new trial motion when the issue is evidentiary rulings that undermined [defendant's] constitutional right to a fundamentally fair trial." Albarran relied on People v. Nesler (1997) 16 Cal.4th 561, 582, a plurality opinion. (People v. Albarran, supra, 149 Cal.App.4th at p. 224, fn. 7.) Nesler involved the denial of a new trial motion brought on juror misconduct grounds. We have not found any case in which the Supreme Court has extended the Nesler standard of review beyond the juror misconduct context.
1. Exclusion of Evidence
The prosecution's theory was that the tension between defendant and the Huh family—as evidenced by disagreements over spa management, prior altercations between Alex and defendant, the civil judgment against defendant and the court order requiring defendant to vacate the spa premises—precipitated the murder. The trial court ruled the prior hostility, including the fact of the civil lawsuit and its outcome, was relevant to the question of motive. The trial court ruled generally, however, that it would not allow a retrial of the civil case. The court explained that it would revisit the issue in response to specific evidence.
The trial court noted: "[W]e'll see where we are . . . when we deal with individual questions. We're arguing abstract. . . . [¶] . . . [W]e're arguing in the abstract. I don't have any specific issues in front of me. We'll revisit this . . . throughout the trial."
The court instructed the jury: "[T]he issue of this civil jury trial is not offered to relitigate the issues in the civil jury trial, just to put the case in context, the case you have in context. The People are offering it as to motive."
"Evidence is relevant if it has any tendency in reason to prove a disputed material fact. (Evid. Code, § 210.)" (People v. Waidla (2000) 22 Cal.4th 690, 718.) A trial court's evidentiary rulings are reviewed for an abuse of discretion. (People v. Waidla, supra, 22 Cal.4th at pp. 717-718; People v. Guerra (2006) 37 Cal.4th 1067, 1113.) "Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]" (People v. Guerra, supra, 37 Cal.4th at p. 1113.) Any error is harmless unless it is reasonably probable the evidence would have affected the verdict. (People v. Guerra, supra, 37 Cal.4th at p. 1116; People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) Moreover, "[t]he ordinary application of state evidentiary law does not, as a general matter, implicate the United States Constitution. [Citation.]" (People v Vines (2011) 51 Cal.4th 830, 869; accord, People v. Prince (2007) 40 Cal.4th 1179, 1220.)
The trial court sustained objections to evidence proffered by the defense. Specifically, defense counsel sought to use Dr. Kim's civil deposition testimony to impeach Dr. Kim's failure to recollect details about business loans defendant cosigned. Defense counsel also sought to inquire on cross-examination of Mr. Ackerman, who represented the Huhs in the civil action, whether defendant or the Huhs sued first, whether defendant had cosigned business loans, whether defendant's name was on the title to certain spa real property, and whether the Huhs were ordered to reimburse defendant for money he spent to purchase the real property.
Defense counsel asked Mr. Ackerman whether "ownership of property" and "alleged loans" were issues in the civil case. Mr. Ackerman responded, "Yes, correct." Counsel then asked, "And the alleged loans were loans involving - - where Howard Huh's name - -." Defense counsel further inquired: "Q . . . [W]ho sued who first? [¶] A There were virtually two actions that were filed almost simultaneously. . . . [¶] Q Okay. But the first to file was Dr. Kim; correct? [¶] A Actually, I think that's incorrect. [¶] Q. Well, let me show you a document - - two documents and ask you - - [¶] Mr. Chiu: Actually, objection. Relevance. [¶] The Court: Sustained . . . ." Further: "Q And [defendant's] name was on the title [to spa real property]? [¶] Mr. Chui: Objection. Relevance. [¶] The Court: Sustained. [¶] By Ms. Martin: After the trial was over, then [defendant] was ordered to be reimbursed the money that he had spent purchasing - - [¶] Mr. Chiu: Objection. Relevance. [¶] By Ms. Martin: [¶] Q -- 319 North Serrano; correct? [¶] The Court: Sustained."
Defendant argues, as he did at his motion for a new trial, that the trial court erroneously excluded evidence he offered to establish he had a reasonable belief in the merits of his civil claims, he could or intended to appeal the civil judgment, the parties were involved in ongoing settlement talks, there were financial entanglements that had yet to be resolved and defendant was to be compensated for his investment in the business. Defendant reasons that had the jury known these facts, it might have concluded defendant had no motive to kill Alex and the murder was the result of a sudden quarrel or in the heat of passion.
A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of voluntary manslaughter, a lesser offense. (People v. Moye (2009) 47 Cal.4th 537, 549; People v. Barton (1995) 12 Cal.4th 186, 199.) A defendant lacks malice when he acts in a sudden quarrel or heat of passion. (§ 192, subd. (a); People v. Moye, supra, 47 Cal.4th at p. 549; People v. Barton, supra, 12 Cal.4th at p. 199.)
The trial court did not abuse its discretion in excluding the proffered evidence. Defendant made no offer of proof or attempt to introduce any evidence of an appeal or settlement talks, that there were unresolved financial entanglements or that he was to be compensated for any investments. (Evid. Code, § 354; People v. Vines, supra, 51 Cal.4th at pp. 868-869.) As to the evidence actually excluded, the trial court could reasonably conclude the issues had been resolved in the civil trial and were not relevant to the central question in the criminal trial—whether defendant intentionally killed Alex or acted in self-defense. There was no abuse of discretion.
Even if the trial court's evidentiary rulings were in error, they were not prejudicial. The jury heard and rejected evidence consistent with a sudden quarrel or heat of passion defense. Defendant had a history of verbal and physical confrontations with Alex in which defendant was the aggressor. When defendant arrived at the Hollywood police station, he said, "I lost it. I shot him." There was some evidence of a possible struggle. Alex was shot at close range and Mr. Pride testified the Glock semiautomatic weapon could have gone off during a struggle. The loaded magazine was found on the ground near the victim's body. Defendant had blood on his hand and clothing. He had scratch marks on the side of his neck down to his lower back and on his arm. He had dust or dirt on his back, as if he had fallen.
However, there was very strong evidence inconsistent with a sudden quarrel or heat of passion killing. There was a long history of conflict between defendant and the Huhs over the business. During the three-year course of the civil case, defendant had threatened Dr. Kim that if he lost the case, he would not "leave [the Huhs] alone." After he pantomimed firing a handgun at the Huhs, he told Eddie and Alex, "You will soon see your [deceased] father." On the day defendant was to pack his belongings and vacate the spa, defendant armed himself with a fully loaded weapon. He lured Alex to a private area by repeatedly requesting that Dr. Kim, Eddie and Alex come to his office. At no time did he tell law enforcement officers or anyone else that he had struggled with Alex, was provoked, or shot Alex in anger. When interviewed by detectives, defendant said he acted in self-defense in the mistaken belief that Alex was an intruder. Further, Mr. Pride admitted the hypothetical struggle was inconsistent with the gunshot wound to the victim's back. Defendant described the intruder as a "big man" dressed "all in black." But, at the time of his death, Alex was only five feet seven inches tall and was dressed in a white shirt and khaki shorts.
Given the state of the evidence, there is no reasonable probability the verdict would have been more favorable to defendant had the jury heard evidence in support of defendant's assertions he had meritorious claims against the Huhs that were not finally resolved. It was undisputed that at the time defendant shot and killed Alex there was a civil judgment against defendant and defendant was being forced to vacate the spa premises.
Because there was no error and no prejudice, the trial court did not abuse its discretion in denying defendant a new trial on evidentiary error grounds. And because there was no abuse of discretion, there was no federal due process violation. (People v. Cole (2004) 33 Cal.4th 1158, 1187, fn. 1; People v. Carter (2003) 30 Cal.4th 1166, 1196.) As noted above, "[t]he ordinary application of state evidentiary law does not, as a general matter, implicate the United States Constitution. [Citation.]" (People v Vines, supra, 51 Cal.4th at p. 869.) Defendant has not demonstrated that this case presents an exception to the general rule. (People v. Lindberg (2008) 45 Cal.4th 1, 26; People v. Prince, supra, 40 Cal.4th at p. 1229.)
2. Prosecutorial misconduct
Again reiterating the argument made at his motion for a new trial, defendant claims the trial court's erroneous evidentiary rulings allowed the prosecutor to commit prejudicial misconduct when he argued the civil jury verdict against defendant was evidence of motive. Defendant failed to object to the prosecutor's comments during oral argument and defense counsel did not request a curative admonition. As a result, the prosecutorial misconduct claim was forfeited. (People v. Martinez (2010) 47 Cal.4th 911, 956; People v. Tafoya (2007) 42 Cal.4th 147, 176.) "The reason for the rule requiring assignment of misconduct and a request that the jury be instructed to disregard it is that the trial court must be given the opportunity to obviate the harmful results, if any, by appropriate instructions to the jury." (People v. Johnson (1950) 99 Cal.App.2d 717, 731.)
In his argument on appeal, defendant at times mischaracterizes the record. For example, defendant contends, "[T]he prosecutor told the criminal jury that the civil jury's verdict that no partnership existed meant that [defendant's] belief he had ownership interests in the spa business has never, ever had any merit." Defendant asserts these statements were "false" because defendant could still appeal or negotiate a settlement and the jury's verdict was wrong. Defendant's argument mischaracterizes the record. What the prosecutor said was, "Here we know that in April of 2008, about two months before the murder, the defendant was told clearly, undoubtedly, that you must evict yourself from the [spa]. You have no ownership interest in the business, you have no ownership interest in the property. You must leave by April 29, 2008. And he failed to leave." The prosecutor was referring to the jury verdict in the civil action and the judgment thereon, not defendant's own beliefs as to the merits of his position.
Even if not forfeited, because an objection would have been futile (People v. Panah (2005) 35 Cal.4th 395, 462; People v. Harrison (2005) 35 Cal.4th 208, 243-244), the trial court properly denied the new trial motion on prosecutorial misconduct grounds. "A prosecutor is given wide latitude during closing argument." (People v. Harrison, supra, 35 Cal.4th at p. 244.) Under state law, a prosecutor commits misconduct when he or she uses ""'deceptive or reprehensible methods to attempt to persuade the court or the jury."' [Citation.]" (People v. Earp (1999) 20 Cal.4th 826, 858; accord, People v. Wallace (2008) 44 Cal.4th 1032, 1070.) "'A defendant's conviction will not be reversed for prosecutorial misconduct' that violates state law . . . 'unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.' [Citation.]" (People v. Wallace, supra, 44 Cal.4th at p. 1071.) "When a prosecutor's intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated." (People v. Panah, supra, 35 Cal.4th at p. 462.) "A trial judge is in a better position than is an appellate court to determine the probable effect of misconduct of [the prosecutor] and his conclusion on that question will not be disturbed by an appellate court unless in the circumstances it is plainly wrong. [Citation.]" (People v. Sarazzawski (1945) 27 Cal.2d 7, 15, disapproved on another point in People v. Braxton (2004) 34 Cal.4th 798, 817; accord, People v. Hardy (1992) 2 Cal.4th 86, 213.)
Defendant's prosecutorial misconduct claim hinged on the evidentiary rulings. Because we find no evidentiary error, and assuming defendant's prosecutorial misconduct claims were preserved for appeal, we also find no prosecutorial misconduct. The prosecution's motive theory as presented at trial was based on undisputed facts. The prosecutor argued, consistent with the trial court's evidentiary rulings, that the civil verdict against defendant following years of tension between the parties was evidence defendant had a motive to kill Alex. Moreover, because there was no prosecutorial misconduct, there was no federal Constitutional violation. (See People v. Carter, supra, 30 Cal.4th at p. 1196; People v. Panah, supra, 35 Cal.4th at p. 462; People v. Ochoa (1998) 19 Cal.4th 353, 427.)
B. Disclosure of Juror Identification Information
Defendant asserts error in the denial of his post-trial motion for disclosure of juror identification information. "Any person may petition the court for access to [juror identification] records. The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror's personal identifying information. The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information . . . ." (Code Civ. Proc., § 237, subd. (b).) Our review is for an abuse of discretion. (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1094; People v. Jones (1998) 17 Cal.4th 279, 317.)
To demonstrate good cause, a defendant must make a showing sufficient to support a reasonable belief that jury misconduct occurred. (People v. Rhodes (1989) 212 Cal.App.3d 541, 552, accord, People v. Santos (2007) 147 Cal.App.4th 965, 977-978; People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322-1323, fn. 8.) The burden is on defendant to establish good cause. (People v. Granish (1996) 41 Cal.App.4th 1117, 1131.) Moreover, the jury misconduct must be '"of such a character as is likely to have influenced the verdict improperly." (Evid. Code, § 1150, subd. (a)) . . . .' (People v. Jefflo, supra, 63 Cal.App.4th at p. 1322.) Mere speculation that juror misconduct occurred does not meet the good cause requirement for release of juror identification information. (People v. Rhodes, supra, 212 Cal.App.3d at p. 552.)
Theo Huh, defendant's son, filed a declaration in support of defendant's petition. Theo declared that he had seen Alex's family members and employees of the spa "routinely follow jurors into the restroom before and after proceedings as well as during breaks." Theo further declared: "I have seen on numerous occasions, group outbursts of emotions next to or within a few feet of jurors. I have seen conversations in English regarding the case among family members of Alex Huh, employees of [Dr. Kim] both in the court hallway and elevator." Theo further described events involving jurors in the civil trial.
The trial court did not abuse its discretion in concluding defendant failed to make a prima facie showing of good cause. Nothing in Theo Huh's declaration raised a reasonable inference that juror misconduct improperly influenced the verdict. First, as the trial court noted, only one bathroom was available for use by jurors and family members. Second, conversations among and displays of emotion by family members are not uncommon in criminal trials; such conduct, without more, is not likely to have improperly influenced the verdict. Third, the actions of jurors in the civil lawsuit had no bearing on the actions of jurors in the criminal trial.
C. Sufficiency of the Evidence of Second Degree Murder
Defendant argues there was insufficient evidence he committed second degree murder in that "[t]he [P]eople failed to prove beyond a reasonable doubt that [defendant] did not kill as the result of a sudden quarrel or in the heat of passion." "Murder is the unlawful killing of a human being with malice aforethought. (§187, subd. (a).) A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of the lesser included offense of voluntary manslaughter. (§192.) But a defendant who intentionally and unlawfully kills lacks malice only in limited, explicitly defined circumstances: either when the defendant acts in a 'sudden quarrel or heat of passion' (§192, subd. (a)), or when the defendant kills in 'unreasonable self-defense'—the unreasonable but good faith belief in having to act in self-defense (see In re Christian S. (1994) 7 Cal.4th 768; People v. Flannel, supra, 25 Cal.3d 668)." (People v. Barton (1995) 12 Cal.4th 186, 199.) Here, the jury was properly instructed the burden was on the People to prove the absence of a sudden quarrel or heat of passion. (People v. Najera (2006) 138 Cal.App.4th 212, 227; Mullaney v. Wilbur (1975) 421 U.S. 684, 704.)
"In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.]" (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; accord, People v. Whisenhunt (2008) 44 Cal.4th 174, 200.) "'The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence . . . . "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.] We do not reweigh the evidence or reevaluate a witness's credibility. [Citation.]' [Citation.]" (People v. Whisenhunt, supra, 44 Cal.4th at p. 200.)
There was substantial evidence the killing was not the result of a sudden quarrel or heat of passion. Defendant had been angry for years that Alex and Eddie became involved in the business. He repeatedly threatened Huh family members, verbally and non-verbally. He was further angered by the jury verdict against him in the civil trial. On the day he was to pack his property and vacate the spa premises, he planned the attack by arming himself with a fully loaded handgun and luring members of the Huh family, including Alex, to come upstairs to his office. He shot Alex not once but twice and at close range. Defendant's actions after the killing were indicative of a calm demeanor in that he then hid the gun in a refrigerator, walked downstairs, told the receptionist to call the police, and walked out of the spa.
Defendant admitted he shot Alex. He never asserted he quarreled with Alex or that Alex provoked him. Moreover, he claimed that he mistook Alex for an intruder. Defendant's own version of the events leading to Alex's death was inconsistent with the assertion that a sudden quarrel or heat of passion precipitated Alex's death.
D. Presentence Custody Credit
Defendant was entitled to credit for 723 days in actual presentence custody, from June 15, 2008 to June 7, 2010. (§§ 2900.5, 4019; In re Marquez (2003) 30 Cal.4th 14, 25-26.) He was not entitled to any conduct credit. (§ 2933.2; People v. Moon (2011) 193 Cal.App.4th 1246, 1253; see In re Carr (1998) 65 Cal.App.4th 1525, 1532, fn. 2.)
The trial court should have imposed a sentence of 25 years to life under section 12022.53, subdivision (d), rather than "25 years." Further, the trial court should have expressly imposed and then stayed the enhancements under subdivisions (b) and (c) of section 12022.53. (§ 12022.53, subd. (f); People v. Gonzalez (2008) 43 Cal.4th 1118, 1130.)
F. Abstract of Judgment
The abstract of judgment must be amended to reflect a consecutive sentence of 25 years to life under section 12022.53, subdivision (d), that the enhancements under subdivision (b) (10 consecutive years) and subdivision (c) (20 consecutive years) of section 12022.53 were imposed and stayed, credit for 723 days in presentence custody, and the imposition of a $30 court security fee (§ 1465.8) and a $30 court facilities assessment (Gov. Code, § 70373).
The judgment is modified to reflect a sentence of 25 years to life under section 12022.53, subdivision (d), credit for 723 days in actual presentence custody, that the enhancements under subdivision (b) (10 consecutive years) and subdivision (c) (20 consecutive years) of section 12022.53 were imposed and stayed. A copy of the corrected abstract of judgment shall be forwarded to the Department of Rehabilitation and Corrections. The judgment is affirmed as modified.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.