Filed 5/5/14

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S049626

v. )

) Santa Clara County

STEPHEN EDWARD HAJEK ) Super. Ct. No. 148113

AND LOI TAN VO, )

)

Defendants and Appellants. )

____________________________________)

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

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

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

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

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

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

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

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

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

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

 

1 All further unlabeled statutory references are to the Penal Code.
2

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

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

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

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

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

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

automatic.

For the reasons set forth herein, we reverse the lying-in-wait specialcircumstance findings as to both defendants. (See post, pt. II.B.1.a.) We also 

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

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

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

I. FACTS

A. Guilt Phase

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

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

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

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

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

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

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

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

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

 

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

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

at trial.
3

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

events transpired that led to the charges in this case.

1. Prosecution Evidence

a. The altercation between Hajek, Nguyen, and Ellen

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

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

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

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

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

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

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

“bitch,” and Nguyen responded in kind.

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

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

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

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

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

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

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

before Hajek and Nguyen drove off. 

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

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

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

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

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

“crank calls” to Hajek that evening and threatened to have friends of hers kill him. 
4

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

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

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

Ellen to Hajek were made.

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

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

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

Nguyen that she did not return.

b. Hajek’s conversation with Tevya Moriarty

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

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

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

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

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

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

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

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

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

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

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

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

do these acts.

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

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

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

to the police on January 21, 1991, and told them it was her impression Hajek was 
5

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

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

and testified that Hajek spoke only of himself. 

c. Hajek and Vo gain entry into the Wang residence

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

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

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

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

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

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

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

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

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

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

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

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

grandmother.

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

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

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

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

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

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

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

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

come out. While she was in the bathroom, she heard clattering noises, like 
6

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

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

the phone, but defendants told her to speak English. 

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

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

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

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

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

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

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

her mother down.

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

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

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

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

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

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

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

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

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

had two guns, although Cary never saw a gun.

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

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

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

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

She stood at the doorway and “peeked” into the room, but could only see her 
7

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

reading a newspaper.3

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

whether Alice reported her grandmother was reading a newspaper the first time 

she looked in on her, when only Cary was at home, or the second time, when both 

parents were present. What is clear is that on each occasion, Alice was only 

permitted a glimpse of her grandmother and did not see her face or talk to her. 
8

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

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

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

park in the garage.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

was fine. In the master bedroom, Hajek tied Tony to the bed. Hajek threatened to 
9

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

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

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

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

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

discovered

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

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

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

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

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

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

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

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

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

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

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

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

apprehended him. Vo was unarmed. 

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

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

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

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

slashed. The area around her was covered with blood, and she was dead. 
10

f. Physical and medical evidence

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

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

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

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

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

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

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

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

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

various rooms of the house.

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

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

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

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

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

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

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

old.

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

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

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

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

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

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

recent bruise on the right side of Su Hung’s chin caused by blunt force, possibly 
11

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

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

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

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

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

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

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

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

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

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

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

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

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

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

slowly.

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

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

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

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

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

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

rendered her unconscious.

2. Defendant Hajek’s Evidence

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

burglary and dissuading a witness counts, but claimed that because he was 
12

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

specific intent necessary for the murder and attempted murder counts.

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

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

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

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

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

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

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

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

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

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

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

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

like a normal child, though he still had problems.

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

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

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

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

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

Asian language. Hajek also became obsessed with Japanese animation.

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

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

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

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

believed there was distortion in Hajek’s thought process. The police report of the 
13

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

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

ordered counseling. A psychological evaluation confirmed that Hajek had 

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

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

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

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

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

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

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

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

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

was subsequently expelled.

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

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

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

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

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

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

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

hospitalized because he was depressed, decompensating, and moving toward 

schizophrenia. 

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

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

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

hospitalization. Both men testified that Hajek’s behavior improved once he was 
14

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

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

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

possibly in the early stages of bipolar disorder.

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

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

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

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

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

disorder and a borderline personality disorder with antisocial traits. Minagawa 

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

serious as, bipolar disorder.

According to Dr. Minagawa, people with borderline personality disorders 

have several characteristics, including problems with identity, problems 

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

Minagawa explained the identity problems manifested in the inability of such 

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

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

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

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

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

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

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

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

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

time of his birth, when his mother abandoned him, and to the disruptions in his 
15

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

half years of his life.

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

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

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

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

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

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

required for murder and attempted murder.

3. Defendant Vo’s Evidence

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

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

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

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

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

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

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

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

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

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

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

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

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

and a telephone.

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

testified that Hajek came to his house on the morning of January 18, 1991, and 
16

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

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

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

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

of her family members.

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

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

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

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

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

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

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

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

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

school.

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

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

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

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

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

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

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

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

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

“talking and talking,” so Vo gagged him. A couple of minutes later, Vo heard the 
17

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

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

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

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

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

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

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

residence.

B. Penalty Phase

1. Prosecution Evidence

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

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

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

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

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

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

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

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

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

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

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

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

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

2. Defendant Hajek’s Evidence

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

with his adoptive parents, testified about that process. Hajek was abandoned by 
18

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

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

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

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

home and placed for adoption with another couple.

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

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

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

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

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

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

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

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

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

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

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

going to ask that Hajek be removed from their house.

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

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

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

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

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

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

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

during his stay with the couple.
19

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Additionally, Minagawa testified Hajek was suffering from the personality 

disorder he had described in his guilt phase testimony.

3. Defendant Vo’s Evidence

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

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

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

correctional expert.

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

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

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

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

First they went to Guam, then to an Army base in Arkansas, then to Tennessee, 
20

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

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

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

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

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

did not want him to receive the death penalty. 

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

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

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

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

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

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

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

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

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

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

from his family.

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

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

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

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

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

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

between their parents. 
21

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

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

received the death penalty. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

formed the impression that Vo’s father was strict. 

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

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

the German club, and he mixed well with everyone and was liked and respected by 
22

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

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

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

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

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

throw a chair at him.

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

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

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

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

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

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

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

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

and a positive and stable person.

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

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

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

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

the United States government were forced to leave because they feared 

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

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

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

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

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

the men expected women to keep to their traditional roles. The children of these 
23

families were caught in a cultural vise between American individualist and 

Vietnamese traditional cultures. Moreover, because the children acculturated 

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

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

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

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

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

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

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

II. DISCUSSION

A. Pretrial Issues

1. Severance Motions

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

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

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

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

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

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

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

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

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

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

 

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

need not be excluded under federal constitutional law, it was abrogated in 1982 by 

the ‘truth-in-evidence’ provision of Proposition 8 [citation.]. [Citations.]” 

(People v. Fletcher (1996) 13 Cal.4th 451, 465, fn. omitted.)
24

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

penalty phase.

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

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

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

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

contentions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Severance motions in capital cases generally receive heightened scrutiny for 

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

Defendants were charged with having committed common crimes that 

involved the same individuals and same series of events. The joinder of their 
25

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

and Tobin).)

Although Vo advanced two grounds for severance in his pretrial severance 

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

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

process of law.”5

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

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

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

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

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

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

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

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

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

150.)

Here there was sufficient independent evidence of both defendants’ guilt 

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

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

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

 

5 Vo had additionally argued that certain statements by Hajek violated the 

Aranda/Bruton rule. The trial court’s rejection of this argument was sound. The 

statements by Hajek to Moriarty about his plan to kill Ellen’s family and Hajek’s 

postarrest threats to her did not incriminate Vo. The Aranda/Bruton rule applies to 

a “ ‘nontestifying codefendant’s extrajudicial . . . statement that inculpates the 

other defendant.’ ” (People v. Jennings (2010) 50 Cal.4th 616, 652.) The trial 

court later admitted those statements against both defendants. (See post, pt.

II.B.3.a.)
26

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

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

exchanging hostile phone calls. Vo had unrequited romantic feelings toward 

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

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

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

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

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

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

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

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

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

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

Hung.

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

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

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

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

Because sufficient independent evidence existed against both defendants, 

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

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

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

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

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

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

Hajek’s attorney may have suggested in closing argument that Hajek was not the 
27

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

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

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

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

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

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

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

not to commit murder.

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

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

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

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

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

Again, no abuse of discretion has been shown.

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

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

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

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

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

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

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

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

 

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

not have been allowed to argue for his culpability on the basis of what he calls its 

“uncharged and wildly expansive conspiracy theory.” This claim, which we reject 

post, in part II.B.2., has no bearing on whether the cases should have been severed.
28

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

context and motive for his actions at the Wang residence.

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

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

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

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

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

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

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

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

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

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

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

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

ill.

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

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

his sadism — tainted Vo by association.

Severance may be justified “where there may be prejudicial association 

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

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

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

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

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

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

above, ample independent evidence implicated Vo in the crimes of which he was 
29

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

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

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

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

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

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

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

some of this evidence.

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

process violation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

he killed the victim, Dr. Minagawa’s testimony violated the Aranda/Bruton rule. 
30

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

On appeal, Vo challenges the denial of these motions.

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

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

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

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

statement that inculpates the other defendant is generally unreliable and hence 

inadmissible as violative of that defendant’s right of confrontation and crossexamination, even if a limiting instruction is given.” [Citation].’ [Citation.] The 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

these circumstances, the trial court’s limiting instruction properly guided the jury’s 
31

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

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

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

that testimony only against a codefendant.”].)

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

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

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

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

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

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

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

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

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

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

violation.

Hajek also contends the trial court erroneously denied his penalty phase 

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

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

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

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

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

 

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

Hajek also forfeited his claim that severance was required after the prosecutor 

asked one of Vo’s witnesses if Hajek had been a “gangster” in high school. In any 

event, the trial court sustained the objection of Hajek’s counsel and granted her 

motion to strike. Hajek points to no further prosecutorial questioning on this 

subject.
32

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

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

make “an individualized determination based on the character and circumstances 

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

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

491, 575.)

2. Keenan Counsel

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

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

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

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

a. Background

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

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

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

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

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

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

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

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

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

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

 

8 Vo links these alleged errors with claims pertaining to funding issues 

during the trial and to his counsel’s attempt to withdraw after the court excluded 

testimony from one of his experts, Dr. Berg, as a discovery sanction. The issues 

are distinct and are discussed separately. (See post, pts. II.D.1., II.C.3.)
33

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

of his witnesses spoke only Vietnamese.

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

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

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

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

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

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

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

denied the motion.

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

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

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

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

the transcript of any hearing is in the record.

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

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

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

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

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

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

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

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

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

 

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

special-circumstance allegations except torture murder. The prosecution’s appeal 

was successful, and the Court of Appeal reinstated the special circumstances in an 
34

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

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

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

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

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

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

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

unsuccessful in his efforts to find a replacement for Bachers.

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

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

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

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

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

penalty phase investigation is at your fingertips.”

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

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

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

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

prisoner classifications and prisoner adjustment.

b. Discussion

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

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

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

 

unpublished opinion filed on October 29, 1993. Subsequently, however, the trial 

court dismissed the robbery-murder and burglary-murder special-circumstance 

allegations at the end of the prosecution’s guilt phase case.
35

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Court, supra, 31 Cal.3d at p. 429.) The trial court gave clear and detailed reasons 
36

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

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

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

appoint Keenan counsel. Neither the declarations submitted in connection with 

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

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

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

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

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

we do not.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

was also the fourth anniversary of the crime. Vo’s counsel acknowledged that 
37

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

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

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

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

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

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

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

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

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

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

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

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

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

those people is somebody you’re going to put on the stand to talk in the case, and 

you’re not going to put Keenan counsel on the stand.” In sum, the trial court 

concluded that the defense was sufficiently prepared to proceed with both the guilt 

and penalty phases and that the withdrawal of second counsel did not necessitate a 

continuance. 

We find no abuse of discretion. Even if counsel could have chosen to 

allocate his time differently, he was not denied a reasonable opportunity to prepare 

a defense. (People v. Doolin, supra, 45 Cal.4th at p. 450.) Thus, the trial court 

was justified in rejecting counsel’s request for more time to prepare his penalty 

phase case in light of Keenan counsel’s withdrawal. Moreover, a replacement 
38

counsel was appointed, and an extensive penalty phase case was in fact presented. 

Thus, Vo fails to demonstrate prejudice in any event.10

B. Guilt Phase Issues

1. Sufficiency of the Evidence Claims

Defendants claim the evidence is insufficient to support the lying-in-wait 

special-circumstance findings, the torture-murder special-circumstance findings, 

the attempted murder convictions, the firearm enhancements as to Hajek, and the 

knife use enhancements as to Vo. Based on the alleged insufficiency of the 

evidence at the close of the prosecution’s guilt phase case-in-chief, defendants 

additionally contend the trial court should have granted their section 1118.1 

motions for dismissal of the lying-in-wait special circumstances and for acquittal 

 

10 “As to this and virtually all other appellate claims, defendant contends that 

an issue raised and decided in the trial court resulted in constitutional violations, 

but he did not present those constitutional theories below. In such instances, it 

appears that (1) the appellate claim is the kind that required no trial court action to 

preserve it, or (2) the new arguments do not invoke facts or legal standards 

different from those the trial court was asked to apply, but merely assert that the 

trial court’s act or omission, in addition to being wrong for reasons actually 

presented to that court, had the legal consequence of violating the United States 

and California Constitutions. To that extent, defendant’s new constitutional 

arguments are not forfeited on appeal. (People v. Boyer (2006) 38 Cal.4th 412, 

441, fn. 17, applying People v. Partida (2005) 37 Cal.4th 428, 433-439.) In the 

latter case, no separate constitutional discussion is required or provided where 

rejection of a claim that the trial court erred on the issue presented to that court 

necessarily leads to rejection of any constitutional theory or ‘gloss’ raised for the 

first time here.” (People v. Contreras (2013) 58 Cal.4th 123, 139, fn. 17.) We 

apply this principle here and elsewhere where defendants, separately or jointly, 

assert on appeal constitutional claims not advanced below.
39

on counts 2 through 5 of the information regarding the attempted murders of Cary, 

Alice, Tony, and Ellen, and on the knife use enhancements.

11

In determining whether the evidence was sufficient either to sustain a 

conviction or to support the denial of a section 1118.1 motion, the standard of 

review is essentially the same. (People v. Houston (2012) 54 Cal.4th 1186, 1215

(Houston).) “ ‘[W]e do not determine the facts ourselves. Rather, we “examine 

the whole record in the light most favorable to the judgment to determine whether 

it discloses substantial evidence — evidence that is reasonable, credible and of 

solid value — such that a reasonable trier of fact could find the defendant guilty 

beyond a reasonable doubt.” [Citations.] We presume in support of the judgment 

the existence of every fact the trier could reasonably deduce from the evidence. 

[Citation.] [¶] The same standard of review applies to cases in which the 

prosecution relies primarily on circumstantial evidence and to special 

circumstance allegations. [Citation.] “[I]f the circumstances reasonably justify 

the jury’s findings, the judgment may not be reversed simply because the 

circumstances might also reasonably be reconciled with a contrary finding.” 

[Citation.] We do not reweigh evidence or reevaluate a witness’s credibility.’ ” 

(Ibid.; see also People v. Watkins (2012) 55 Cal.4th 999, 1019-1020.) Notably, 

however, “[r]eview of the denial of a section 1118.1 motion made at the close of a 

prosecutor’s case-in-chief focuses on the state of the evidence as it stood at that 

point.” (Houston, at p. 1215; see Watkins, at p. 1019.)

 

11 As relevant here, section 1118.1 provides: “In a case tried before a jury, the 

court on motion of the defendant or on its own motion, at the close of the evidence 

on either side and before the case is submitted to the jury for decision, shall order 

the entry of a judgment of acquittal of one or more of the offenses charged in the 

accusatory pleading if the evidence then before the court is insufficient to sustain a 

conviction of such offense or offenses on appeal.”
40

a. Lying-in-wait murder and lying-in-wait special circumstance

Defendants argue the trial court abused its discretion in denying their 

motions to dismiss the lying-in-wait special-circumstance allegations at the close 

of the prosecution’s case-in-chief. (§ 1118.1.) They also contend the evidence 

was insufficient to support their convictions of first degree murder on a lying-inwait theory and the true findings on the lying-in-wait special-circumstance 

allegations. (§§ 189, 190.2, former subd. (a)(15) as added by Prop. 7, enacted by 

voters Nov. 7, 1978.) For the reasons below, we agree the lying-in-wait specialcircumstance findings must be reversed, but conclude that reversal of these 

findings does not require reversal of defendants’ death sentences.

At the time of Su Hung’s murder, “the elements of the lying-in-wait special 

circumstance required an intentional killing, committed under circumstances that 

included a physical concealment or concealment of purpose; a substantial period 

of watching and waiting for an opportune time to act; and, immediately thereafter, 

a surprise attack on an unsuspecting victim from a position of advantage. 

[Citations.] . . . [The period of waiting and watching] need not continue for any 

particular length ‘ “of time provided that its duration is such as to show a state of 

mind equivalent to premeditation or deliberation.” ’ [Citation.] ‘ “ ‘The element 

of concealment is satisfied by a showing “ ‘that a defendant’s true intent and 

purpose were concealed by his actions or conduct. It is not required that he be 

literally concealed from view before he attacks the victim.’ ” ’ ” ’ [Citation.] The 

factors of concealing murderous intent, and striking from a position of advantage 

and surprise, ‘are the hallmark of a murder by lying in wait.’ [Citation.]” (People 

v. Stevens (2007) 41 Cal.4th 182, 201-202, fns. omitted; People v. Morales (1989) 

48 Cal.3d 527, 557.) “[T]he lying-in-wait special circumstance requires ‘that the 

killing take place during the period of concealment and watchful waiting . . . .’ 
41

[Citation.]” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1149.) “ ‘During’ 

means ‘at some point in the course of.’ ” (People v. Lewis (2008) 43 Cal.4th 415, 

514 (Lewis).)

Moreover, when the capital crime occurred, the lying-in-wait special 

circumstance required a showing that the defendant “intentionally killed the victim 

while lying in wait.” (§ 190.2, former subd. (a)(15), italics added.) In 2000, the 

electorate approved Proposition 18 which, among other things, “changed the 

language of the lying-in-wait special circumstance to delete the word ‘while’ and 

substitute in its place ‘by means of.’ ” (Lewis, supra, 43 Cal.4th at p. 512, fn. 25.) 

Because Su Hung’s murder occurred before this statutory change, we apply the 

case law interpreting the more stringent requirement of the former law. (See id. at 

p. 511.)

At trial, the evidence showed that Su Hung was killed while defendants 

were waiting for her granddaughter, Ellen, to return home. The trial court, using a 

“transferred intent” analogy, concluded that even though Ellen was the target, “the 

murder did occur during the process of lying in wait, so that special [circumstance] 

will not be dismissed.”

12 The Attorney General disavows the trial court’s 

rationale and argues on appeal that Su Hung herself was the target of defendants’ 

lying in wait.13 Defendants counter the evidence was insufficient to establish that 

Su Hung’s murder occurred while they were lying in wait for her.

 

12 Our research has yielded no support in case law for the trial court’s 

transferred intent analogy.

13 Defendants maintain the People have forfeited this argument because it was 

not presented at trial. However, review of the prosecution’s closing argument 

discloses it did not rely on a transferred intent analogy but rather, as the Attorney 

General does here, contended the evidence showed defendants lay in wait for the 

murder victim herself. Accordingly, we reject the claim of forfeiture.
42

In evaluating defendants’ contentions, we find Lewis, supra, 43 Cal.4th 

415, instructive. There, the defendant and his accomplices had “accomplished the 

forcible kidnapping of [several victims] while lying in wait, but then drove the still 

living victims around in their cars for periods of one to three hours, while 

withdrawing money from the victims’ bank accounts, before killing them. By the 

time of the killings, the concealment, the watchful waiting, and the surprise attack 

all had taken place at least one and up to three hours earlier.” (Id. at p. 514.) In 

assessing the sufficiency of the evidence, Lewis took note of the prosecutor’s 

argument that the defendant had concealed his purpose to kill from each of the 

victims until the moment they were killed, in some cases assuring the victims they 

would not be harmed. Nonetheless, Lewis concluded that “ ‘mere’ concealment of 

purpose is not enough to support the lying-in-wait special circumstance. 

[Citation.] Rather, such concealment must be contemporaneous with a substantial 

period of watching and waiting for an opportune time to act, and followed by a 

surprise attack on an unsuspecting victim from a position of advantage. 

[Citation.]” (Ibid.) As Lewis emphasized, “there was no evidence that, while 

concealing his purpose to kill, defendant watched and waited for an opportune 

time to kill the victims. Rather, the evidence suggests each was killed when, and 

only when, his or her ATM withdrawal limit had been reached and the victim had 

been driven to a suitable location for killing. Moreover, there was no evidence 

that the victims were surprised. Indeed, the evidence suggests each victim must 

have been aware of being in grave danger long before getting killed.” (Id. at 

pp. 514-515.)

The evidence here is comparable to that in Lewis and calls for a similar 

result. Defendants entered the Wang residence by ruse, displayed a gun, and 

shortly thereafter bound and blindfolded the frightened victim and isolated her in 
43

an upstairs bedroom for several hours before finally killing her. From the moment 

defendants took Su Hung and Alice hostage, Su Hung could not have perceived 

their actions as anything other than a serious threat to her safety, even if they 

untied her for a period of time while she was kept isolated in the bedroom. Thus, 

even assuming defendants engaged in a period of watchful waiting before entering

the house using the element of surprise, it was followed by “a series of nonlethal 

events” over the course of several hours, “and then a cold, calculated, inevitable, 

and unsurprising dispatch” of the victim. (Lewis, supra, 43 Cal.4th at p. 515.) 

Moreover, even assuming defendants never revealed their true purpose to kill the 

entire Wang family, there was no evidence that, while concealing that purpose, 

defendants watched and waited for an opportune time to kill Su Hung. Thus, even 

when the evidence is considered in a light most favorable to the judgment, it 

simply fails to establish that defendants’ concealment was contemporaneous with 

a substantial period of watching and waiting for an opportune time to act, or that 

their concealment allowed them to launch a surprise attack on an unsuspecting 

victim from a position of advantage. Although the evidence shows Su Hung was 

killed in a most horrifying manner, it falls short of establishing she was killed 

while defendants were lying in wait for her.

Accordingly, we conclude the evidence was insufficient to show that 

defendants “intentionally killed the victim while lying in wait,” as required under 

the former law. (§ 190.2, former subd. (a)(15), italics added; see Lewis, supra, 43 

Cal.4th at pp. 514-515.) We now address whether reversal of the lying-in-wait 

special-circumstance findings requires reversal of defendants’ death sentences.

Citing Stringer v. Black (1992) 503 U.S. 222, Hajek (joined by Vo) argues 

that “the invalidated aggravating factor necessarily added to the aggravating side 
44

of the balance and this prejudiced [defendant] when the jury was deciding whether 

to sentence him to death.” We disagree.

Not only did a valid special-circumstance finding remain (torture murder, 

see post, pt. II.B.1.b.), but the jury was statutorily permitted to consider all of the 

facts and circumstances underlying Su Hung’s murder. As the United States 

Supreme Court recognized in Brown v. Sanders (2006) 546 U.S. 212, the 

invalidation of a special circumstance does not require reversal of the death 

sentence under California’s statutory scheme if “one of the other sentencing 

factors enables the sentencer to give aggravating weight to the same facts and 

circumstances.” (Id. at p. 220; People v. Castaneda (2011) 51 Cal.4th 1292, 

1354.) In urging the death penalty, the prosecutor here relied almost exclusively 

on factor (a) of section 190.3, which allows consideration of “the immediate 

temporal and spatial circumstances of the crime,” as well as “that which surrounds 

the crime materially, morally, or logically.” (People v. Hamilton (2009) 45 

Cal.4th 863, 926.) In this case, the factor (a) evidence was the same evidence the 

prosecutor cited in his attempt to establish lying in wait — that is, defendants 

gained entry into the Wang residence by ruse; they displayed a gun; they quickly 

bound and blindfolded Su Hung; and they isolated her upstairs for several hours 

before finally killing her. In the words of the United States Supreme Court, “[a]ll 

of the aggravating facts and circumstances that the invalidated [special 

circumstances] permitted the jury to consider were also open to their proper 

consideration under [section 190.3, factor (a)],” and thus the invalid special 

circumstances “could not have ‘skewed’ the sentence.” (Brown, at p. 223 [finding 

no constitutional violation where jury rendered death verdict after making four 

special-circumstance findings, two of which were invalidated on appeal].) That 

the evidence was insufficient to establish lying in weight did not render its 
45

consideration by the jury inappropriate. Because the invalid lying-in-wait special 

circumstances “did not alter the universe of facts and circumstances to which the 

jury could accord . . . weight” (People v. Bonilla (2007) 41 Cal.4th 313, 334), and 

because “[t]here is no likelihood that the jury’s consideration of the mere existence 

of the [lying-in-wait] special circumstance tipped the balance toward death” 

(Mungia, supra, 44 Cal.4th at p. 1139), the invalidity of the lying-in-wait special 

circumstances does not warrant reversal of the death sentences.

14

b. Torture murder and torture-murder special circumstance

Defendants contend the first degree torture-murder convictions and the 

torture-murder special-circumstance findings were not supported by substantial 

evidence.15 We conclude the evidence was sufficient.

“To prove torture murder, the prosecution must establish ‘ “a willful, 

deliberate, and premeditated intent to cause extreme pain or suffering for the 

purpose of revenge, extortion, persuasion, or another sadistic purpose.” ’ 

[Citation.] To prove a torture-murder special circumstance, the prosecution must 

show that defendant intended to kill and had a torturous intent, i.e., an intent to 

 

14 In light of our conclusions above, defendants’ attacks on the 

constitutionality of the special circumstance are moot. We also find it unnecessary 

to address defendants’ claims that the evidence is insufficient to support the 

convictions of lying-in-wait first degree murder, because the first degree murder 

verdicts can be affirmed on theories of torture murder and premeditated murder. 

(See post, pt. II.B.1.b.; People v. Rundle (2008) 43 Cal.4th 76, 141 [“ ‘[W]e need 

not consider [a sufficiency] claim . . . when the court can determine from the 

record that the verdict rested on a theory which is supported by sufficient 

evidence.’ ”].)

15 Defendants did not move for dismissal or acquittal of the torture-murder 

special-circumstance allegations at the conclusion of the prosecution’s case-inchief. (§ 1118.1.) Accordingly, we look to the entirety of the guilt phase to assess

the sufficiency of the evidence for these special circumstance findings.
46

cause extreme pain or suffering for the purpose of revenge, extortion, persuasion, 

or another sadistic purpose. [Citation.] The jury may infer the intent to inflict 

extreme pain from the circumstances of the crime, the nature of the killing, and the 

condition of the victim’s body. [Citation.]” (People v. Streeter (2012) 54 Cal.4th 

205, 237 (Streeter).)16 “ ‘There is no requirement that the victim be aware of the 

pain.’ ” (People v. Elliot (2005) 37 Cal.4th 453, 466-467.) Thus, as to both 

torture murder and torture-murder special circumstances, the sufficiency inquiry is 

directed at evidence of the defendant’s torturous intent. (People v. Mincey (1992) 

2 Cal.4th 408, 433 (Mincey).)

It bears emphasis that “the trier of fact may find intent to torture based on 

all the circumstances surrounding the charged crime, including the nature and 

severity of the victim’s wounds and any statements by the defendant revealing his 

state of mind during the crime.” (People v. Bemore (2000) 22 Cal.4th 809, 841 

(Bemore).) For example, evidence that the defendant intentionally inflicted 

nonlethal wounds on the victim may demonstrate the requisite “ ‘sadistic intent to 

cause the victim to suffer pain in addition to the pain of death.’ ” (Ibid.; see id. at 

p. 844 [“Certain nonlethal knife wounds . . . seem plainly calculated to cause 

extreme pain and to induce [the victim’s] cooperation.”]; see also Mungia, supra,

44 Cal.4th at p. 1137 [“When we have upheld [torture-murder specialcircumstance findings], the evidence has shown that the defendant deliberately 

 

16 Hajek contends that the prosecutor conflated the elements of torture murder 

and the torture-murder special circumstance, but the relevance of this assertion to 

his sufficiency argument is unclear. He acknowledges that “the principal area of 

overlap” between the elements of the torture murder and the torture-murder 

special circumstance “is the requirement that the prosecution prove beyond a 

reasonable doubt that the defendant had an intent to cause the victim extreme 

pain.” It is precisely this intent requirement that Hajek argues is unsupported by 

substantial evidence, and it is this contention we address.
47

inflicted nonfatal wounds or deliberately exposed the victim to prolonged 

suffering.”]; People v. Crittenden (1994) 9 Cal.4th 83, 141 (Crittenden) 

[intentional nonfatal injuries “are consistent only with an intent to inflict extreme 

pain”].) Although evidence of binding, by itself, is insufficient to establish an 

intent to torture (Mungia, at p. 1138), it is appropriate to consider whether the 

victim was bound and gagged, or was isolated from others, thus rendering the 

victim unable to resist a defendant’s acts of violence. (Crittenden, at p. 141 

[victims bound and gagged]; People v. Proctor (1992) 4 Cal.4th 499, 532 [“victim 

was isolated and prevented from resisting or escaping”]; cf. People v. Chatman 

(2006) 38 Cal.4th 344, 391 [binding not required to prove torture].) Finally, the 

manner of the victim’s death may also evidence the defendant’s intent to torture. 

(Proctor, at pp. 531-532.)

Considered as a whole, the circumstances surrounding Su Hung’s murder 

provide substantial evidence of defendants’ torturous intent. Significantly, there 

was substantial medical evidence showing Su Hung suffered a number of 

nonlethal wounds before she was strangled and her throat slashed. These wounds 

— which were neither inadvertent nor accidental — included blunt force trauma to 

her chin, a stab wound to her shoulder that left a bleeding gash one inch long and 

one inch deep, and five shallow puncture wounds to her chest from a sharp 

instrument. These wounds evidenced deliberate and gratuitous violence beyond 

that which was necessary to kill the victim, and the jury could reasonably infer 

from the circumstances that the wounds were inflicted to cause her severe pain 

while she was bound, gagged, and utterly helpless. (See Bemore, supra, 22 

Cal.4th at p. 842; Crittenden, supra, 9 Cal.4th at p. 141.)

Moreover, the jury was presented with explicit evidence that defendants’ 

crimes were motivated by a sadistic intent. Hajek was heard to make statements 
48

that evidenced his intent to carry out a vengeful and sadistic plan to murder. Two 

days before the killing, Hajek told Tevya Moriarty that he and his girlfriend had 

gotten into a fight with a girl, and that he wanted to get back at the girl. He said 

that he was going to the girl’s house to kill her and her family, and that he planned 

to kill the girl’s family first so he could “look in [the girl’s] eyes when he killed 

her.” Not only did these statements evidence Hajek’s desire to murder Ellen after 

forcing her to watch as they first killed her family members, but a jury could 

reasonably find that such statements, in combination with the condition of Su 

Hung’s body, showed that defendants did not kill Su Hung quickly but intended to 

inflict extreme pain before finally executing her.

Finally, the manner in which Su Hung was killed furnished additional 

evidence of defendants’ torturous intent. Death by strangulation will always take 

some amount of time, so generally that fact alone is insufficient to establish an 

intent to torture. However, combined with the other circumstances here —

including the duplicative nature of the lethal wounds to Su Hung’s throat, the 

nonlethal wounds, and evidence of an express sadistic intent — evidence of the 

manner of Su Hung’s death is consistent with an intent to inflict extreme pain or 

suffering.

Hajek effectively concedes his statements to Moriarty were evidence of a 

motive to exact revenge against Ellen. He argues, however, they did not provide 

substantial evidence of an intent to inflict extreme pain on the murder victim, Su 

Hung. We are not persuaded. While Hajek did not explicitly say he intended to 

inflict extreme pain on Su Hung or any of the Wangs before killing them, that 

intent can be inferred from the totality of the circumstances: the sadistic nature of 

defendants’ plan (to first kill Ellen’s family members while she watched and then 

to kill her), the deliberate and nonlethal wounds they inflicted on Su Hung while 
49

she was bound and completely defenseless (striking her chin hard enough to leave 

a bruise, stabbing her gratuitously in the shoulder, and treating her like a 

pincushion while they superficially punctured her chest five times),17 and the 

manner in which they killed her (choking her slowly but forcefully with a ligature 

until they fractured her thyroid cartilage, then slashing her throat through her 

trachea and jugular vein).

Hajek also fails to persuade us that Su Hung’s injuries did not reflect a 

torture murder because they were not sufficiently similar to the “extreme injuries” 

that other decisions found “support[ed] the inference of an intent to inflict extreme 

and prolonged pain.”18 With regard to the perceived lack of severity of Su Hung’s 

wounds, it was obvious to defendants that she was a frail woman who was elderly 

and diminutive. Su Hung’s physical dimensions (she stood five foot one and 

weighed 87 pounds) were basically those of a child, and her age (73 years) 

rendered her extremely vulnerable. She was, moreover, bound, gagged, separated 

from her family, and completely under the domination of the two defendants. We 

 

17 The coroner testified he could not tell whether the five puncture wounds to 

Su Hung’s chest had been inflicted pre- or postmortem because there was little 

blood associated with them. However, he also repeatedly testified that he would 

not have expected there would have been much blood even if they had been 

inflicted premortem. The jury could reasonably have inferred, given the nonlethal 

and nonaccidental stab wound to the victim’s shoulder, that the wounds to her 

chest were inflicted while she was still alive. The substantial evidence standard of 

review requires that we draw this inference, and all other favorable inferences that 

are supportive of the jury’s special circumstance finding. (Streeter, supra, 54 

Cal.4th at p. 241.)

18 Hajek’s sufficiency of the evidence claim appears to incorporate a 

challenge to the prosecutor’s characterization of the victim’s injuries in closing 

argument. To that extent, the claim is one of prosecutorial misconduct that has 

been forfeited by the failure to object to the prosecutor’s remarks at trial. (People 

v. Ledesma (2006) 39 Cal.4th 641, 726.)
50

cannot agree with Hajek that the wounds left by the various acts of striking, 

stabbing, puncturing, and strangling this frail, defenseless, and isolated victim 

were not sufficiently extreme to support the inference of an intent to cause her 

severe pain and suffering, when considered in light of the totality of the 

circumstances — including defendants’ express sadistic plan. (See Bemore, 

supra, 22 Cal.4th at pp. 841-842; Crittenden, supra, 9 Cal.4th at p. 141.)

Vo argues separately that the evidence is insufficient as to him because 

there was no evidence that he himself killed or tortured the victim, or that he 

intended to participate in the killing or the torture. At trial, Vo testified he tagged 

along with Hajek that day out of friendship, without any knowledge of Hajek’s 

plan to murder Ellen’s family and then Ellen. There was, however, substantial 

evidence casting grave doubt on his credibility.

First, the prosecution’s case included letters that Vo had written to Lori 

Nguyen. These letters, which revealed Vo’s unrequited love for Nguyen, provided 

substantial evidence that Vo had his own independent motive to seek revenge on 

Ellen: He could impress Nguyen with how much he loved her.

Second, Vo had to have known about the altercation between Nguyen, 

Hajek, and Ellen, because Vo was at Hajek’s house the night of its occurrence and 

had heard Hajek and Ellen exchanging angry phone calls. Moreover, Hajek had 

told Moriarty, who was scarcely more than an acquaintance of his, that because of 

this altercation he planned to kill the family of the girl involved (Ellen), and then 

the girl herself. From these two circumstances the jury could reasonably have 

concluded it inconceivable that Hajek would not similarly have confided his 

sadistic and murderous plan to Vo, one of his best friends, whom he enlisted to 

carry out the plan.
51

Third, the evidence did not show that Vo passively followed Hajek in the 

activities leading up to the murder. To the contrary, the evidence established that 

Vo was an active participant who often took the lead in executing the plan. It was 

Vo who tied up Su Hung, Vo who threatened Cary with a knife, and Vo who told 

Cary he wanted to teach Ellen a lesson. When Ellen did not come home as 

anticipated and time was passing, Vo became impatient and forced Cary to go out 

on a search for Ellen to bring her home, presumably so that the killing could 

begin.

Finally, all the evidence is consistent with a conclusion that Vo actively 

participated in the torture of Su Hung. The evidence established that each 

defendant went several times to the bedroom where the victim was being held in 

isolation. Thus, Vo was as likely as Hajek to have inflicted some or all of the 

victim’s nonlethal and lethal wounds. Because Vo was the only defendant seen 

possessing and using a knife, the jury could reasonably have concluded that Vo 

inflicted the shoulder stabbing, chest punctures, and throat slashing. Although Vo 

points to the minute amounts of the victim’s blood on Hajek’s glove and coat as 

evidence that Hajek, not Vo, killed Su Hung, such evidence did not foreclose a 

conclusion that Vo tortured or killed the victim. Indeed, there was evidence that a 

second pair of gloves, presumably Vo’s, was found on the kitchen table.19 

Additionally, a knife that later tested positive for blood was found lying over a 

puddle of water in the kitchen sink, although it could not be determined whether 

the blood was human or animal, fresh or old. On this record, the jury could 

reasonably have accepted the prosecution’s theory that Vo removed his gloves to 

use the knife on the victim and then washed both his hands and the knife in the 

 

19 Although Cary had seen Vo wearing gloves when he held a knife to her 

throat, Tony testified that Vo was not wearing gloves later on when Vo gagged 

and threatened to kill Tony in the upstairs room.
52

kitchen sink. Thus, while it is plausible that Hajek used the knife on Su Hung, it is 

just as plausible that both of them, or perhaps only Vo, did so.

In any event, even if Vo did not personally inflict the lethal and nonlethal 

wounds on Su Hung, there was substantial evidence showing that Vo shared 

Hajek’s torturous intent and aided and abetted the commission of torture murder. 

Considering all the evidence in the light most favorable to the judgment, and 

presuming the existence of every fact the jury could reasonably deduce from the 

evidence, we conclude the jury could reasonably have found that Vo shared the 

intent to torture and murder the victim.

In sum, we find that the totality of the circumstances of the crime amply 

demonstrated an intent to torture, and that substantial evidence supports the torture 

murder convictions and torture-murder special-circumstance findings as to both 

defendants. (Streeter, supra, 54 Cal.4th at p. 246 [where evidence supports first 

degree murder conviction on torture-murder theory it also supports a finding of 

torturous intent for purpose of the torture-murder special-circumstance 

allegation].)

Furthermore, and in any event, ample evidence supports both defendants’ 

first degree murder convictions on a deliberate and premeditated murder theory. 

Defendants arrived at the Wang residence in furtherance of their plan to exact 

revenge on Ellen. The circumstances of the murder, including the evidence of 

defendants’ planning, motive, and the manner of killing, indicate it was conduct 

undertaken with “preexisting thought and reflection” and was not the result of “an 

unconsidered rash impulse.” (Houston, supra, 54 Cal.4th at p. 1216 [planning, 
53

motive, and manner of killing are relevant to resolving issue of premeditation and 

deliberation].)20

c. Attempted murder

Defendants challenge the denial of their section 1118.1 motions for 

acquittal of the attempted murder counts involving Cary, Alice, Tony, and Ellen. 

They also contend the evidence is insufficient to support their convictions on these 

counts. Although we may look to the entire record to evaluate the latter 

contention, we find we may dispose of both contentions by reviewing the evidence 

adduced in the prosecution’s case-in-chief.

“Attempted murder requires the specific intent to kill and the commission 

of a direct but ineffectual act toward accomplishing the intended killing.” (People 

v. Ervine (2009) 47 Cal.4th 745, 785.) “The overt act element of attempt requires 

conduct that goes beyond ‘mere preparation’ and ‘show[s] that [defendant] is 

putting his or her plan into action.’ [Citations.] [¶] . . . [T]he line between mere 

preparation and conduct satisfying the act element of attempt often is difficult to 

determine; the problem ‘is a question of degree and depends upon the facts and 

circumstances of a particular case.’ [Citation.] The act that goes ‘beyond mere 

preparation’ need not constitute an element of the target crime [citation], and it 

‘ “need not be the ultimate step toward the consummation of the design.” ’ 

[Citation.] Instead, ‘ “it is sufficient if [the conduct] is the first or some 

subsequent act directed towards that end after the preparations are made.” ’ 

[Citation.] In other words, we have explained, the act must represent ‘ “some 

 

20 Having concluded that substantial evidence supports defendants’ first 

degree murder convictions on torture-murder and premeditated murder theories, 

we need not, and do not, address whether substantial evidence supports 

defendants’ first degree murder convictions on a burglary-murder or robberymurder theory.
54

appreciable fragment of the crime.” ’ [Citations.]” (People v. Watkins, supra, 55 

Cal.4th at p. 1021.) For the reasons below, we find substantial evidence of 

defendants’ attempt to murder Cary, Alice, Tony, and Ellen.

The evidence presented in the prosecution’s case-in-chief included the 

following. Hajek told Moriarty he planned to kill Ellen and her family in 

retaliation for his altercation with Ellen, and to make the crime appear like a 

robbery. Although Vo did not participate in this conversation, the evidence 

showed that Vo was present at Hajek’s house with Nguyen when Hajek and Ellen 

were exchanging hostile phone calls later that evening, and that Vo also had an 

unrequited romantic interest in Nguyen. The evidence also showed that Vo and 

Hajek were good friends and that they acted in concert the day of the crimes. That 

morning, defendants drove a stolen van and parked it some distance from the 

Wang residence. Wearing gloves and armed with a pellet gun, they gained 

entrance to the Wang residence. Hajek pointed the gun at Alice, and Vo bound 

and blindfolded Su Hung and isolated her by moving her to an upstairs room. 

Over the course of several hours, defendants, either jointly or individually, held 

four members of the Wang family hostage; accosted the family members with 

weapons and threatened to kill them; went out in search of Ellen, presumably to 

force her home and start the planned killings; refused to negotiate with Cary or 

Tony, but insisted on waiting for Ellen; bound and gagged Tony in an upstairs 

room, just as they had his mother-in-law; and killed Su Hung. Defendants also 

ransacked the house, inferentially in furtherance of their plan to make it appear as 

if a robbery had occurred. Their plot to kill Ellen and her entire family might very 

well have succeeded had the police not been called to intervene. On this record, 

there was substantial direct and circumstantial evidence that each defendant 
55

harbored a specific intent to kill, that they agreed on a plan for doing so, and that 

each took significant steps in putting their plan into action.

Although Hajek made explicit statements concerning his murderous intent 

to Moriarty, he argues those statements alone cannot constitute the corpus delicti 

of the crime. (People v. Ochoa (1998) 19 Cal.4th 353, 450 [prosecution must 

establish the corpus delicti of the crime by evidence independent of the 

defendant’s extrajudicial statements].) While true, this does not help him. “The 

independent evidence [establishing the corpus delicti of a crime] may be 

circumstantial, and need only be ‘a slight or prima facie showing’ permitting an 

inference of injury, loss, or harm from a criminal agency, after which the 

defendant’s statements may be considered to strengthen the case on all issues.” 

(People v. Alvarez (2002) 27 Cal.4th 1161, 1181.) The same “ ‘slight acts’ ” 

standard applies to evidence establishing the overt acts for purposes of attempt. 

(People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8 [“[W]e have long 

recognized that ‘[w]henever the design of a person to commit crime is clearly 

shown, slight acts in furtherance of the design will constitute an attempt.’ ”]; see 

People v. Dillon (1983) 34 Cal.3d 441, 455; People v. Morales (1992) 5 

Cal.App.4th 917, 926-927.) Here, the independent evidence of Hajek’s actions at 

the Wang residence was more than sufficient to permit consideration of his 

statements to Moriarty regarding his intent.

Vo contends Hajek’s statements to Moriarty, which were not made in Vo’s 

presence and of which he claims no knowledge, constituted the only evidence the 

prosecution presented of his intent to murder Ellen and her family. That is 

incorrect. As indicated, there was evidence that Vo was infatuated with Nguyen 

and that he was aware of the altercation involving her, Hajek, and Ellen, because 

he was at Hajek’s house during some of the hostile calls between Hajek and Ellen. 
56

The evidence also shows that Vo went to the Wang residence with Hajek and 

participated fully in the criminal conduct that occurred over the course of several 

hours, often taking the lead. Indeed, Vo told Cary at one point he was going to 

teach Ellen a lesson.

From the facts and circumstances surrounding Vo’s activities, a jury could 

reasonably have concluded that he was aware of Hajek’s plan to kill all the 

members of the Wang family and shared Hajek’s intent to do so. Under the 

applicable standard of review, it matters not whether the circumstances might also 

reasonably support a different finding. (People v. Watkins, supra, 55 Cal.4th at 

p. 1020.)

Both defendants maintain there was insufficient evidence of an act that 

went beyond mere preparation. We reject their claim under the “ ‘slight acts’ ” 

rule cited above. (People v. Superior Court (Decker), supra, 41 Cal.4th at p. 8.) 

At the point defendants entered the Wang residence and took Alice and Su Hung 

hostage, it can fairly be said they were “ ‘ “actually putting [their murderous] plan 

into action.” ’ ” (Id. at p. 9; People v. Morales, supra, 5 Cal.App.4th at pp. 926-

927.) Certainly, their subsequent conduct, up to and including the actual murder 

of Su Hung, reflected far more than slight acts toward commission of their plan to 

kill the entire Wang family.

In sum, the record contains substantial evidence of defendants’ attempt to 

murder Cary, Alice, Tony, and Ellen.

d. Hajek’s firearm use enhancements 

Pursuant to former section 12022.5, subdivision (a), counts 1 through 9 of the 

information alleged that Hajek personally used a firearm, “to wit: [a] PELLET 

GUN,” in the commission of the offenses. The jury found these allegations true, 

and Hajek was sentenced to five years on each of the enhancements for counts 1 
57

through 9. Hajek contends that a change in the law excluding pellet guns from the 

definition of a firearm requires that we vacate or strike these nine firearm use 

enhancements. We agree in part.

Former section 12022.5 was part of part 4, title 2 of the Penal Code 

pertaining to control of deadly weapons. Prior to 1991, the definition of “firearm”

for purposes of former section 12022.5 was set forth in sections 12001 and 

12001.1, and section 12001.1 at the time included pellet guns within its definition. 

(Former § 12001.1, added by Stats. 1988, ch. 1605, § 3, p. 5821.) In 1991, the 

Legislature repealed section 12001.1 (Stats. 1991, ch. 950, § 4, p. 4324) and 

amended section 12001 (Stats. 1991, ch. 955, § 1.1, p. 4451). As amended in 

1991, section 12001 did not include pellet guns within the definition of “firearm”

for purposes of any title 2 enhancement. (§ 12001, subd. (b), added by Stats. 

1991, ch. 955, § 1.1, p. 4451.) The only reference to pellet guns was in 

subdivision (g) of section 12001, which expanded the definition of “firearm” for 

purposes of prohibiting the sale of firearms to minors.

In People v. Vasquez (1992) 7 Cal.App.4th 763 (Vasquez), a jury had 

convicted the defendant of four counts of robbery, with enhancements for being 

armed with a firearm and personal use of a firearm. Because the weapon that was 

the basis of the enhancements was a pellet gun, the defendant argued on appeal 

that the repeal of section 12001.1 and the amendment of section 12001 required 

reversal of the enhancement findings. The Court of Appeal agreed: “Application 

of this new statutory definition for ‘firearm,’ or restricted definition, to Vasquez’s 

crimes committed before its operative date (Jan. 1, 1992) changes the legal 

consequences of his criminal conduct. [Citation.] Such application is permissible 

because the restricted definition generally favors defendants. [Citation.]” 
58

(Vasquez, at p. 767.) Accordingly, the court reversed the true findings of all the 

firearm enhancements. (Id. at p. 769.)

The Vasquez court relied heavily on the rule articulated in In re Estrada 

(1965) 63 Cal.2d 740 (Estrada), which established an exception to the general rule

that no part of the Penal Code is retroactive. (§ 3 [no part of the Penal Code is 

retroactive “unless expressly so declared”]; see Vasquez, supra, 7 Cal.App.4th at 

pp. 767-769.) In Estrada, we held that “where [an] amendatory statute mitigates 

punishment and there is no saving clause, the rule is that the amendment will 

operate retroactively so that the lighter punishment is imposed.” (Estrada, at 

p. 748.)

As we recently explained, Estrada represents “an important, contextually 

specific qualification to the ordinary presumption that statutes operate 

prospectively: When the Legislature has amended a statute to reduce the 

punishment for a particular criminal offense, we will assume, absent evidence to 

the contrary, that the Legislature intended the amended statute to apply to all 

defendants whose judgments are not yet final on the statute’s operative date. 

[Citation.] We based this conclusion on the premise that ‘ “[a] legislative 

mitigation of the penalty for a particular crime represents a legislative judgment 

that the lesser penalty or the different treatment is sufficient to meet the legitimate 

ends of the criminal law.” ’ [Citation.] ‘ “Nothing is to be gained,” ’ we reasoned, 

‘ “by imposing the more severe penalty after such a pronouncement . . . other than 

to satisfy a desire for vengeance” ’ [citation] — a motive we were unwilling to 

attribute to the Legislature.” (People v. Brown (2012) 54 Cal.4th 314, 323

(Brown).)

Importantly, however, while acknowledging the continuing viability of the 

Estrada rule, we have emphasized its narrowness: “Applied broadly and literally, 
59

Estrada’s remarks about section 3 would . . . endanger the default rule of 

prospective operation. Recognizing this in Evangelatos [v. Superior Court (1988) 

44 Cal.3d 1188], we declined to follow Estrada’s remarks about section 3 and 

held that ‘language in Estrada . . . should not be interpreted as modifying this 

well-established legislatively-mandated principle.’ [Citation.] Accordingly, 

Estrada is today properly understood, not as weakening or modifying the default

rule of prospective operation codified in section 3, but rather as informing the 

rule’s application in a specific context by articulating the reasonable presumption 

that a legislative act mitigating the punishment for a particular criminal offense is 

intended to apply to all nonfinal judgments. [Citation.]” (Brown, supra, 54 

Cal.4th at p. 324.)

We agree that, thus understood, Vasquez properly applied the Estrada rule to 

the 1991 repeal of section 12001.1 and amendment of section 12001. Consistent 

with Vasquez, we conclude that, because Hajek’s judgment was not yet final at the 

time of the legislative action, his firearm use enhancements involving the use of a 

pellet gun must be struck.

That, however, does not end the discussion. In People v. Schaefer (1993) 

18 Cal.App.4th 950, the same division of the Court of Appeal that decided 

Vasquez was confronted by a similarly situated defendant who also sought reversal 

of true findings of firearm use enhancements because he, too, had been armed with 

a pellet gun when committing the crimes. Schaefer agreed the defendant was 

entitled to the benefit of Vasquez, but went on to conclude that “Vasquez [did] not 

eliminate the law holding a pellet gun to be a deadly or dangerous weapon within 

the meaning of Penal Code section 12022, subdivision (b). [Citation.]” (Schaefer, 

at p. 951.) Reasoning that the defendant’s admission of the firearm use 

enhancements (former § 12022.5) necessarily included his admission of deadly or 
60

dangerous weapon enhancements (former § 12022, subd. (b) (former section

12022(b)), Schaefer struck the former enhancements and replaced them with 

enhancements under the latter statute, resulting in a reduced sentence. (Schaefer,

at p. 951.)

Like the defendant’s admissions in Schaefer, the jury’s true findings on the 

firearm use enhancements (former § 12022.5, subd. (a)) necessarily included true 

findings on deadly or dangerous weapon use enhancements (former § 12022(b)). 

Consistent with Schaefer, we order that Hajek’s firearm use enhancements be 

struck and replaced with deadly or dangerous weapon use enhancements.

e. Vo’s knife use enhancements

The amended information alleged that Vo used a deadly weapon, to wit, a 

knife, in the commission of the attempted murders of Cary, Alice, Tony, and Ellen 

(counts 2 through 5), the kidnapping of Cary (count 6), and the false imprisonment 

of Tony (count 9). (Former § 12022(b).) The jury found these allegations true. 

Vo contends the evidence was insufficient to support the knife use allegations and 

findings.

“ ‘We review the sufficiency of the evidence to support an enhancement 

using the same standard we apply to a conviction. [Citation.] Thus, we presume 

every fact in support of the judgment the trier of fact could have reasonably 

deduced from the evidence.’ [Citation.]” (People v. Wilson (2008) 44 Cal.4th 

758, 806.) “The question is whether, after viewing the evidence in the light most 

favorable to the prosecution, any rational trier of fact could have found the 

elements of the underlying enhancement beyond a reasonable doubt.” (People v. 

Alvarez (1996) 14 Cal.4th 155, 225.)

At the time of Vo’s crimes, former section 12022(b) provided: “Any 

person who personally uses a deadly or dangerous weapon in the commission or 
61

attempted commission of a felony shall, upon conviction of such felony or 

attempted felony, in addition and consecutive to the punishment prescribed for the 

felony or attempted felony of which he or she has been convicted, be punished by 

an additional term of one year, unless use of a deadly or dangerous weapon is an 

element of the offense of which he or she was convicted.” (Stats. 1989, ch. 1284, 

§ 2, p. 5058.) This provision represents a legislative judgment that the use of a 

deadly or dangerous weapon in the commission of some felonies “justifies an 

additional penalty to that prescribed for the underlying felonies.” (People v. Wims 

(1995) 10 Cal.4th 293, 305.) “In order to find ‘true’ a section 12022(b) allegation, 

a fact finder must conclude that, during the crime or attempted crime, the 

defendant himself or herself intentionally displayed in a menacing manner or 

struck someone with an instrument capable of inflicting great bodily injury or 

death. [Citations.]” (Id. at p. 302.)

In determining whether there was substantial evidence of Vo’s knife use, 

we may properly consult cases construing the term “uses” in other enhancement 

statutes under “ ‘The Dangerous Weapons’ Control Law.’ ” (People v. Masbruch 

(1996) 13 Cal.4th 1001, 1006.) Hence, we may rely on cases construing the term 

as it is understood for purposes of section 12022.5, which addresses personal use 

of a firearm in the commission or attempted commission of a felony. (People v. 

James (1989) 208 Cal.App.3d 1155, 1163; see People v. Wilson, supra, 44 Cal.4th 

at pp. 806-807 [construing “uses” in former § 12022.5, subd. (a)]; People v. 

Granado (1996) 49 Cal.App.4th 317, 325 [same] (Granado).) As we have 

recognized in the context of former section 12022.5, subdivision (a), “ ‘The 

obvious legislative intent to deter the use of firearms in the commission of the 

specified felonies requires that “uses” be broadly construed.’ [Citation.] ‘Thus 

when a defendant deliberately shows a gun, or otherwise makes its presence 
62

known, and there is no evidence to suggest any purpose other than intimidating the 

victim (or others) so as to successfully complete the underlying offense, the jury is 

entitled to find a facilitative use rather than an incidental or inadvertent 

exposure.’ ” (People v. Wilson, supra, 44 Cal.4th at pp. 806-807, quoting 

Granado, supra, 49 Cal.App.4th at p. 325.)

In Granado, the Court of Appeal, applying these principles, upheld a 

firearm use enhancement as to a victim who was not aware the defendant was 

armed and did not see the firearm. The defendant and another man confronted the 

two victims, Walter and Wilfredo Calderon, on the street and demanded money 

from them. Defendant took a gun from his waistband, which Walter saw, but 

Wilfredo fled without apparently having seen the gun. (Granado, supra, 49 

Cal.App.4th at pp. 320-321.) On appeal, the defendant argued that the firearm use 

enhancement as to Wilfredo should be set aside because the evidence did not show 

that Wilfredo was aware the defendant was armed with a gun. In a thoughtful 

opinion, the Court of Appeal rejected the argument. As the court pointed out, the 

underlying purpose of the firearm use statute is to deter defendants from using a 

firearm. “At its core the statute addresses the pervasive and inherent escalation of 

danger which arises from the defendant’s act of deployment. By merely bringing 

a gun ‘into play,’ the defendant removes impediments to its actual discharge and 

thus enhances the danger of violent injury not only through an intentional act by 

the victim or a third party, but through an impulsive or inadvertent act by the 

defendant.” (Id. at p. 327.) In light of this purpose, the court reasoned, “[t]o 

excuse the defendant from this consequence merely because the victim lacked 

actual knowledge of the gun’s deployment would limit the statute’s deterrent 

effect for little if any discernible reason.” (Ibid.) We find this reasoning equally 
63

applicable in the context of deadly or dangerous weapon use enhancements under 

former section 12022(b).

Vo contends that, “[a]side from the one brief period” when he held a knife 

“near” Cary before putting it away, there was no other evidence he was seen in 

possession of, or using, a knife. We disagree. Applying the principles articulated 

above, we find substantial evidence of Vo’s knife use as to all victims.

The prosecution’s case-in-chief included the following evidence. The 

police discovered two knives in the stolen van in which defendants arrived at the 

Wang residence, showing that defendants apparently contemplated, from the 

beginning, use of a knife to carry out their plan to kill Ellen and her family. The 

murder victim’s throat had been slashed by a “sharp bladed instrument” that the 

coroner believed was a knife, and her shoulder and chest also disclosed several 

nonlethal injuries inflicted by a knife. Thus, it was clear that defendants’ arsenal 

anticipated knife use, and a knife was indeed used in committing the crimes.

Turning specifically to Vo’s knife use, Alice testified she watched Vo arm 

himself with a knife and hide in the bathroom. Then, when Cary entered the 

house, Vo deliberately held the knife to Cary’s throat. According to Cary’s 

testimony, Alice told her not to scream so that Vo would not hurt them. This 

sufficiently established Vo’s use of the knife not only against Cary, but also 

against Alice.

Regarding Tony, Alice warned him that defendants had a knife as well as 

guns. Alice’s remark was clearly based on her observation of Vo’s open use of the 

knife on her mother. Thus, Vo’s knife use against Cary and Alice had the 

additional direct effect of instilling fear in Tony and securing his compliance 

when, later, defendants tied him up and took him upstairs. This evidence was 

sufficient to establish knife use against Tony. (See People v. Wilson, supra, 44 
64

Cal.4th at p. 807 [firearm use need not be strictly contemporaneous with the base 

felony; “ ‘[A] jury could reasonably conclude that although defendant’s presence 

with the victims was sporadic, the control and fear created by his initial firearm 

display continued throughout the encounter.’ ”].) 

The jury also found true the knife use enhancement in connection with the 

attempted murder count involving Ellen, even though Ellen was not present at the 

Wang residence. Just as the fortuity of Ellen’s absence does not lessen Vo’s 

culpability for attempted murder, given the substantial evidence of his intent to kill 

and his commission of an overt act, neither does such fortuity render insufficient 

the evidence supporting the knife enhancement on this count. From the outset, 

defendants were evidently prepared to use knives to murder Ellen and her family. 

They did, in fact, use a knife to kill Su Hung. As was true in Granado, where one 

of the victims was not aware the defendant was armed, to excuse Vo from the 

consequence of his knife use merely because Ellen lacked actual knowledge of the 

knife’s deployment “would limit the statute’s deterrent effect for little if any 

discernible reason.” (Granado, supra, 49 Cal.App.4th at p. 327.)

In sum, Vo’s intentional use and display of a knife to intimidate and control 

the victims who either saw the knife (Cary and Alice) or were made aware of its 

use (Tony) facilitated defendants’ plan to murder the entire Wang family, 

including Ellen. Accordingly, we conclude the trial court did not abuse its 

discretion in refusing to grant a directed verdict of acquittal on the knife use 

allegations and that sufficient evidence supports all the knife use enhancements 

under former section 12022(b).
65

2. Use of Uncharged Conspiracy as Theory of Liability

Although defendants were not charged with the substantive offense of 

conspiracy, the prosecutor used conspiracy as a theory of derivative liability. 

Defendants challenge the use of uncharged conspiracy for this purpose.

The Attorney General contends the claim is forfeited because neither 

defendant objected to the prosecutor’s use of uncharged conspiracy as a theory of 

liability. Both defendants had objected to the trial court’s giving of conspiracy 

instructions, but their contention was limited to the perceived insufficiency of 

evidence of a conspiracy and did not assert the theory was legally impermissible. 

Nonetheless, even assuming the claim has been preserved, its substance is 

meritless.

“Conspiracy principles are often properly utilized in cases wherein the 

crime of conspiracy is not charged in the indictment or information. In some 

cases, for example, resort is had to such principles in order to render admissible 

against one defendant the statements of another defendant. [Citations.] In others 

evidence of conspiracy is relevant to show identity through the existence of a 

common plan or design. [Citation.] In still others the prosecution properly seeks 

to show through the existence of conspiracy that a defendant who was not the 

direct perpetrator of the criminal offense charged aided and abetted in its 

commission. [Citations.]” (People v. Durham (1969) 70 Cal.2d 171, 180-181, 

fn. 7.)

Conspiracy can itself be the basis of derivative liability quite apart from 

aiding and abetting principles. “It is long and firmly established that an uncharged 

conspiracy may properly be used to prove criminal liability for acts of a 

coconspirator. [Citations.] ‘Failure to charge conspiracy as a separate offense 

does not preclude the People from proving that those substantive offenses which 
66

are charged were committed in furtherance of a criminal conspiracy [citation]; nor, 

it follows, does it preclude the giving of jury instructions based on a conspiracy 

theory [citations].’ [Citation.]” (People v. Belmontes (1988) 45 Cal.3d 744, 788-

789.) Contrary to Hajek’s assertion, use of an uncharged conspiracy does not 

violate state law, even though the statutory definition of “principals” set forth in 

section 31 does not include conspirators. (People v. Valdez (2012) 55 Cal.4th 82, 

149-150 (Valdez).)

In Valdez, the defendant argued that the use of an uncharged conspiracy 

creates a constitutionally impermissible conclusive presumption “ ‘that a person 

who engages in an uncharged conspiracy to commit a substantive offense is guilty 

of the substantive offense later committed by others.’ ” (Valdez, supra, 55 Cal.4th 

at p. 150.) We disagreed: “ ‘[L]ike aiding and abetting, conspiracy (as used here) 

is itself a theory of liability. . . . The instructions given here did not tell the jury 

that it could presume any particular element of murder, including intent, based on 

proof of predicate facts. Instead, the instructions specified that, as an alternative

to finding, based on the elements of murder, that [defendant] himself committed or 

aided in the crime, it could find him responsible for the crime based on his 

participation in a conspiracy to commit murder. This correctly stated the law 

concerning conspiracy as an alternative theory of liability. [Citations.] 

Accordingly, there was no error.’ ” (Ibid.) Hajek advances the same claim, and, 

for the reasons stated in Valdez, we again reject it.

Both defendants also contend the use of an uncharged conspiracy violated 

due process by depriving them of notice of the charges against them. Assuming, 

without deciding, the claim is not forfeited, it is meritless. “ ‘Due process of law 

requires that an accused be advised of the charges against him so that he has a 

reasonable opportunity to prepare and present his defense and not be taken by 
67

surprise by evidence offered at his trial.’ ” (People v. Seaton (2001) 26 Cal.4th 

598, 640-641.) Defendants here were so advised.

By the time the trial began, defendants were well aware the prosecutor 

intended to proceed on a conspiracy theory to establish derivative liability. For 

example, in opposing Vo’s motion to suppress evidence removed during a search 

of his locker, the prosecutor argued that the evidence consisting of writings by Vo 

and Nguyen was relevant to establish motive and a conspiracy. At the hearing on 

the motion, the prosecutor repeatedly referred to conspiracy as a basis for the 

admission of those documents. Additionally, defendants’ objections to the 

admission of Hajek’s letters to Vo questioned whether such letters were relevant to 

the prosecutor’s conspiracy theory. On this record, defendants cannot plausibly 

maintain that they were surprised or unaware of this theory or unable to prepare to 

defend against it. (See People v. Pike (1962) 58 Cal.2d 70, 88-89 [no “element of 

surprise or unfairness” where, before trial began, defendant was “well aware” that 

“the case against him was based on theories of conspiracy and aiding and 

abetting”].) 

Vo argues the prosecutor “used his expansive conspiracy theory as a 

substitute for evidence of” Vo’s guilt. This merely repeats his sufficiency of the 

evidence claims, which we have already addressed and rejected. (See ante, 

pt. II.B.1.) Vo also argues that use of the conspiracy theory permitted the 

admission of improper evidence against him. This is, in part, a rehash of the

severance claim, which we have also already addressed and rejected. (See ante, 

pt. II.A.1.) To the extent it challenges the admission of particular pieces of 

evidence, we take up those challenges below. (See post, pt. II.B.3.)

Vo asserts the trial court erred by admitting evidence of a conspiracy 

without first making a finding regarding the existence and the scope of such 
68

conspiracy. Because Vo’s trial counsel neither requested such a preliminary 

finding nor pressed the prosecution for an offer of proof, the claim is forfeited. 

Certainly, the prosecution was entitled to present evidence to establish the 

elements of conspiracy without first seeking leave of court, subject, of course, to 

the evidentiary rules governing admissibility. (Cf. People v. Belmontes, supra, 45 

Cal.3d at p. 789 [“There being evidence supportive of all the elements of a 

conspiracy, the People were entitled to proceed on that alternative theory of 

liability.”].) Vo’s claim is really no more than a reprise of his sufficiency 

argument, addressed above, and his assertion, addressed below, that certain 

evidence was improperly admitted against him.

Vo also argues his due process rights were violated because the prosecution 

was not required to prove either the existence or the scope of the uncharged 

conspiracy beyond a reasonable doubt. Again, his quarrel is with the sufficiency 

of the evidence and the admissibility of certain evidence against him. Even taking 

his claim at face value, it is without merit.

In Valdez, the defendant similarly argued it was error for the trial court to 

have failed to instruct the jury that, to convict the defendant of murder based on 

conspiracy, under a theory of derivative liability, it must unanimously agree as to 

the existence and scope of the conspiracy and the defendant’s participation therein 

beyond a reasonable doubt. We rejected the claim. (Valdez, supra, 55 Cal.4th at 

p. 153.) “Under our prior decisions, ‘[i]t is settled that as long as each juror is 

convinced beyond a reasonable doubt that defendant is guilty of murder as that 

offense is defined by statute, [the jurors] need not decide unanimously by which 

theory he is guilty. [Citations.]’ [Citation.] ‘Not only is there no unanimity 

requirement as to the theory of guilt, the individual jurors themselves need not 

choose among the theories, so long as each is convinced of guilt.’ [Citation.]” 
69

(Ibid.) We applied these principles to an uncharged conspiracy when used “as an 

alternative theory of liability for the charged, substantive crime of murder.” (Id. at 

p. 154.) Because the jurors need not unanimously agree on the theory of a 

defendant’s guilt, a court may discharge its obligations by instructing on the 

elements of conspiracy and the prosecution’s burden to prove the defendant’s guilt 

of murder beyond a reasonable doubt. That is what the court did here.

Accordingly, we reject defendants’ claim that the prosecution’s use of an 

uncharged conspiracy as a basis of derivative liability was impermissible. We 

address defendants’ challenges to the conspiracy instructions below. (See post, 

pt. II.B.4.d.)

3. Evidentiary Issues

a. Moriarty’s conversation with Hajek

Moriarty testified that Hajek called her the night before the murder. He 

talked about the altercation he and Nguyen had had with an unnamed girl and his 

fight with her a few days earlier. He also spoke of his plan to get revenge by 

going to the girl’s home, killing her family in front of her, and then killing her, 

while making his attack look like a robbery. Initially, Moriarty testified that in 

speaking of his plan, Hajek used the word “I,” implying only he would do these 

things. However, she acknowledged she had told police that Hajek talked about 

going to the victim’s house with two or three others, and had so testified at the 

preliminary hearing. On cross-examination by Vo’s attorney, she clarified that 

when Hajek spoke of entering the house and killing the girl and her family, he 

spoke only of himself and not of anyone else. She again acknowledged she had 

indicated to police and at the preliminary hearing that Hajek had referred to 

unnamed others in carrying out the plan, but added she did not remember using the 

words attributed to her in the police interview. 
70

Vo argues that admission of Moriarty’s testimony violated his 

confrontation rights under Crawford v. Washington (2004) 541 U.S. 36 and that it 

also violated the Aranda/Bruton rule. His claims are meritless.

In Crawford, the United States Supreme Court held that “[t]estimonial 

statements of witnesses absent from trial [can be] admitted only where the 

declarant is unavailable, and only where the defendant has had a prior opportunity 

to cross-examine.” (Crawford v. Washington, supra, 541 U.S. at p. 59, fn. 

omitted; Williams v. Illinois (2012) ___ U.S ___ [132 S.Ct. 2221, 2232].) Hajek’s 

conversation with Moriarty cannot be deemed testimonial within the meaning of 

Crawford because it was not a conversation involving an agent of the police. 

The Aranda/Bruton argument fares no better. “The Aranda/Bruton rule 

addresses the situation in which ‘an out-of-court confession of one defendant . . . 

incriminates not only that defendant but another defendant jointly charged.’ 

[Citation.] ‘The United States Supreme Court has held that, because jurors cannot 

be expected to ignore one defendant’s confession that is “powerfully 

incriminating” as to a second defendant when determining the latter’s guilt, 

admission of such a confession at a joint trial generally violates the confrontation 

rights of the nondeclarant.’ ” (People v. Brown (2003) 31 Cal.4th 518, 537.) In 

this case, however, Hajek’s statements to Moriarty were not “powerfully 

incriminating” as to Vo. Instead, they reflected vague statements about unnamed 

individuals whom Hajek might enlist in an event that had not yet occurred.

b. Defendants’ jailhouse conversation

After defendants were arrested and taken into custody, they were placed 

into a room together and their conversation was secretly tape-recorded. The 

prosecution prepared a transcript of the recording. Prior to trial, counsel for both 

defendants objected to admission of both the tape and the transcript on the ground 
71

that the tape was inaudible and the transcript misleading. Hajek argued the tape’s 

inaudibility rendered it irrelevant and inadmissible under Evidence Code section

352. Hajek added that if the court were inclined to admit the tape, it should admit 

only the tape and not the transcript. Vo argued that providing the jury with so 

inaudible a tape would lead to speculation. The trial court ruled the tape 

admissible, but not the transcript, because the latter was misleading. 

Before the tape was played, both defense counsel stipulated that the court 

reporter need not transcribe it. Detective Walter Robinson authenticated the tape. 

Robinson acknowledged the overall quality of the tape was “fairly poor,” noting 

that a “good deal” of defendants’ conversation was whispered and that parts of the 

tape were inaudible and unintelligible. He testified further that “maybe 50 to 75 

percent” of the conversation could be heard on the tape. He identified the 

defendants’ two voices and acknowledged that, in general, Hajek spoke at a 

normal level, while Vo whispered.

During guilt phase deliberations, the jury requested a transcript of the 

conversation, which the court denied because the transcript was not in evidence. 

At the hearing on defendants’ motion for a new trial, one of the jurors testified the 

jury listened to the tape during guilt phase deliberations “on a very poor tape 

recorder.” During the penalty phase, the jurors listened to the tape on a different 

tape player.

Hajek argues that admission of the tape constituted an abuse of discretion, 

because its poor quality rendered it unreliable, irrelevant or, if relevant, more 

prejudicial than probative. (Evid. Code, §§ 210, 350, 352.) He also maintains that 

its admission violated his federal constitutional rights to due process and 

heightened reliability in capital cases. As support, Hajek cites the trial court’s 

exclusion of the transcript prepared by the prosecution. He also relies on two 
72

jurors’ testimony at the hearing on defendants’ new trial motions that during 

penalty phase deliberations some jurors heard statements that Hajek contends were 

not on the tape.

Evidence Code section 350 provides that “[n]o evidence is admissible 

except relevant evidence.” “ ‘Relevant evidence’ means evidence . . . having any 

tendency in reason to prove or disprove any disputed fact that is of consequence to 

the determination of the action.” (Evid. Code, § 210.) Of course, a trial court may 

“exclude evidence if its probative value is substantially outweighed by the 

probability that its admission will . . . create substantial danger of undue prejudice 

. . . .” (Evid. Code, § 352.) Questions regarding the admissibility of evidence are 

committed to the trial court’s sound discretion. (People v. Homick, supra, 55 

Cal.4th at p. 859.)

“[A] tape recording may be admissible even if substantial portions of it are 

unintelligible.” (People v. Siripongs (1988) 45 Cal.3d 548, 574.) In light of the 

broad statutory definition of relevance, and the considerable discretion the trial 

court exercises in passing on questions of admissibility, we agree with People v. 

Polk (1996) 47 Cal.App.4th 944 that “ ‘ “[t]o be admissible, tape recordings need 

not be completely intelligible for the entire conversation as long as enough is 

intelligible to be relevant without creating an inference of speculation or 

unfairness.” [Citations.]’ [Citation.] [¶] Thus, a partially unintelligible tape is 

admissible unless the audible portions of the tape are so incomplete the tape’s 

relevance is destroyed.” (Id. at p. 952.)

Our review of the tape confirms Detective Robinson’s testimony that it is 

generally of poor quality and that much of the conversation is whispered and 

therefore inaudible or unintelligible. Nonetheless, we cannot conclude the quality 

of the tape is so compromised as to be rendered completely irrelevant. Those 
73

portions of the tape that are audible contain information generally corroborative of 

the prosecution’s guilt phase case, mostly through Hajek’s words. For example, 

Hajek states that he would have continued to flee from police had he not heard the 

officer who was pursuing him prepare to fire his gun. Hajek also refers to the fact 

that the victim was strangled and then had her throat slashed. Hajek talks about 

having seen Ellen at the jail and expresses his anger at her.

Hajek’s intention to flee the scene, his knowledge of the manner in which 

the victim was killed, and his continuing anger toward Ellen are relevant to the 

issue of his guilt, because they show consciousness of guilt (flight), participation 

in the murder (knowledge of how the victim was killed), and support for the 

prosecutor’s theory of his motive (anger toward Ellen.) Similarly, while both 

defendants discuss the charges they are likely to face (kidnapping and murder), 

neither one at the same time denies culpability or expresses surprise or dismay at 

those charges. Regarding Vo, the jury could reasonably have concluded that Vo’s 

decision to whisper during the conversation reflected a desire not to be overheard, 

supporting a conclusion that he was making incriminating statements.

While the nature of the recording may have made the evidence less 

probative than if the entire conversation had been clearly captured, the court did 

not abuse its discretion in determining that the audible portions nonetheless were 

relevant and admissible. (People v. Roldan, supra, 35 Cal.4th at p. 688 [“A trial 

court will not be found to have abused its discretion unless it ‘exercised its 

discretion in an arbitrary, capricious, or patently absurd manner that results in a 

manifest miscarriage of justice.’ ”].) The fact that the trial court excluded the 

prosecutor’s transcript because it deemed the transcript misleading does not 

suggest that the court believed the tape itself was without evidentiary value. The 

court’s concern instead focused on the debatable accuracy of the transcript, a 
74

concern shared by Hajek’s trial counsel who, while opposing admission of either 

tape or transcript, preferred the tape alone be admitted. In addition, the posttrial 

controversy over what the jurors heard on the tape during their penalty phase 

deliberations has no bearing on the trial court’s initial ruling since, obviously, that 

information was not before it. Finally, Hajek fails to demonstrate that the risk of 

undue prejudice posed by the recording’s admission substantially outweighed its 

probative value, such that exclusion under Evidence Code section 352 was 

required. Accordingly, we conclude the trial court did not abuse its discretion in 

admitting the tape.

Vo also argues that admission of the tape violated the Aranda/Bruton rule. 

Because Vo failed to make any such objection below, the Attorney General 

correctly notes the claim is forfeited.21 In any event, Vo fails to identify any 

statements on the tape that would implicate that rule. Citing section 190.9’s 

requirement that all proceedings in capital cases be on the record, Vo additionally

argues that the trial court erred by failing to direct the court reporter to transcribe 

the tape when it was played in court. But both defense counsel stipulated that the 

tape need not be transcribed, and the claim is therefore forfeited. (Houston, supra,

54 Cal.4th at p. 1213.) In any event, “it is sufficient [for purposes of section 

190.9] that the record contains [this] recording[] and defendant had access to [it].” 

(Id. at p. 1214.)

In sum, we conclude the admission of the tape was not an abuse of 

discretion and did not violate defendants’ constitutional rights.

 

21 In response to the Attorney General’s forfeiture argument, Vo inaccurately 

cites an objection he made to potential questioning by Hajek’s counsel of 

Detective Robinson about the interview Robinson conducted with Hajek prior to 

the taped conversation.
75

c. Hajek’s alleged interest in Satanism

Exhibit No. 64 was a letter that Hajek wrote to Vo while in custody, and it 

included the following remarks: “The devil made me do it! Satan [drawing of a 

pentangle]. I’m still trying to get a Satanic Bible in here.” During his 

examination of Nguyen, the prosecutor asked her a series of questions about 

Hajek’s interest in Satanism. Both Hajek and Vo objected to the prosecutor’s 

initial question, “Did Mr. Hajek ever tell you about his interest in Satanism or 

Satanic things?” Hajek objected on relevance grounds, and Vo on hearsay 

grounds. Hajek withdrew his objection when the prosecutor argued the question 

was relevant to Hajek’s mental state and motivation. With respect to Vo’s 

relevance objection, the court instructed the jury, “it is a statement by Mr. Hajek 

and it does not flop over to Mr. Vo.” 

Hajek objected a second time when the prosecutor asked if Hajek was 

interested in Satanic rituals, and the objection — “That assumes this young 

woman even knows what a Satanic ritual is” — was sustained. The trial court also 

sustained Hajek’s objection when the prosecutor asked Nguyen, “Ever hear him 

say he wanted to kill someone as part of his Satanic beliefs?” The court, however,

overruled the objection to the prosecutor’s next question, “Did he ever say he 

would kill the people in this case, Ellen’s grandmother, for this reason?” When 

Nguyen answered, “No,” the prosecutor moved on to other subjects. Vo joined the 

prosecutor in seeking to have exhibit No. 64 admitted, and the trial court admitted 

the letter over Hajek’s objection.

On appeal, Hajek contends the admission of Nguyen’s testimony and 

exhibit No. 64 was prejudicial error because evidence regarding Hajek’s interest in 

Satanism was irrelevant or, if relevant, unduly prejudicial under Evidence Code 

section 352. He further argues that the evidence should have been barred under
76

Evidence Code section 1101, subdivision (a), which provides that evidence of a 

person’s character or trait of his or her character ordinarily “is inadmissible when 

offered to prove his or her conduct on a specified occasion.” Finally, Hajek

asserts the admission of this evidence violated his Eighth Amendment interest in 

heightened reliability in capital cases. We reject these contentions for the reasons 

below.

Here, a rational jury could have viewed Hajek’s statement in exhibit No. 64 

— “The devil made me do it” — as an admission of guilt, contrary to his 

statement to police in which he denied all responsibility. It was therefore relevant 

and admissible on that point, and its admission was not error.

With respect to Hajek’s references to Satan and the Satanic Bible, even 

assuming those statements should have been excluded, any error was harmless. 

These brief references in a lengthy letter pale in comparison with the 

overwhelming evidence of Hajek’s guilt. As to his claim that admission of such

evidence violated Evidence Code section 1101, subdivision (a), Hajek has 

forfeited that claim by failing to raise it at trial.

For the same reason, Hajek was not prejudiced when the trial court 

permitted the prosecutor to explore Hajek’s interest in Satanism with Nguyen, to 

determine whether Hajek may have made similar remarks to her, given their close 

relationship both before and after the offenses. Two of Hajek’s objections to 

specific questions by the prosecutor to Nguyen were sustained, and he withdrew 

another. As to the one question to which Hajek unsuccessfully objected, about 

whether Hajek ever told Nguyen he had killed the victim because of his interest in 

Satanism, Nguyen answered no, and the prosecutor moved on. Thus, despite 

Hajek’s attempts on appeal to make it appear as if his alleged interest in Satanism 
77

was a centerpiece of the prosecution’s case, these references were brief and 

scattered.22

Vo contends the evidence of Hajek’s interest in Satanism was bad character 

evidence that was admitted in violation of Evidence Code section 1101, which 

tarred him by association. The argument is forfeited as Vo’s counsel failed to 

object on this ground below. (People v. Kennedy (2005) 36 Cal.4th 595, 612 

[“When an objection is made to proposed evidence, the specific ground of the 

objection must be stated.”].) Moreover, as to exhibit No. 64, Vo’s counsel not 

only failed to object on any ground but joined the prosecutor in seeking to have 

the letter admitted. Finally, as to Nguyen’s testimony, the trial court instructed the 

jury that that evidence applied only to Hajek and did not “flop over” to Vo. Vo 

complains the trial court’s instruction was inadequate, but the onus was on Vo’s 

counsel to have requested a clarifying instruction in that case and, having failed to 

do so, he may not complain about it on appeal. (People v. Homick, supra, 55 

Cal.4th at p. 873.) In any event, given that the references were not prejudicial to 

Hajek directly, they could not have indirectly prejudiced Vo.

d. Other crimes evidence

Over Hajek’s objections, Vo was permitted to call James O’Brien and 

Douglas Vander Esch as part of his defense that Hajek had lost control at the 

crime scene and killed the victim without Vo’s knowledge. O’Brien testified to an 

incident that occurred when he and Hajek were coworkers at a pizza parlor. At the 

end of their shifts, Hajek, for no apparent reason, hit O’Brien in the face, breaking 

his nose. Vander Esch, a correctional officer, testified that, when he declined 

 

22 Hajek also complains that the prosecutor referred to the letter in his closing 

argument. Hajek failed to object to the argument, and any issue as to its propriety 

is forfeited. (People v. Ledesma, supra, 39 Cal.4th at p. 726.)
78

Hajek’s request to talk to a sergeant, Hajek went on a rampage, destroying jail 

property. On appeal, Hajek contends the admission of this testimony violated 

Evidence Code section 1101’s ban on bad character evidence and constituted an 

abuse of discretion under Evidence Code section 352. We reject these claims.

Hajek himself had already introduced evidence of these incidents and other 

criminal activity on his part in furtherance of his mental defect defense. Hajek’s 

mother testified he was “explosive, angry” and “easily frustrated,” and had been 

arrested for indecent exposure and separately for possession of nunchucks. Both 

she and Hajek’s former probation officer testified that Hajek had fought with a 

coworker at the pizza parlor, breaking the coworker’s nose. Hajek’s expert 

witness, Dr. Minagawa, testified regarding an incident in which Hajek destroyed 

jail property. Indeed, in lodging her objection to Vo’s intention to call O’Brien 

and Vander Esch, Hajek’s attorney argued “the jury has heard extensive testimony 

[about the two incidents] and it’s clear that Mr. Hajek and I are not disputing those 

facts.”

Thus, Vo’s evidence did no more than echo Hajek’s defense, and it was 

introduced for essentially the same purpose: To show that Hajek was acting under 

the influence of a mental defect or disease when the crimes occurred. 

Accordingly, we find no error under either Evidence Code section 1101 or 

Evidence Code section 352.

e. Testimony of Norman Leung 

Hajek contends the trial court abused its discretion when it declined to 

conduct an Evidence Code section 402 hearing before permitting the prosecutor to 

call Norman Leung, a friend of Hajek’s. He also contends Leung’s testimony 

should have been excluded under Evidence Code section 352. We find no abuse 

of discretion under either provision of the Evidence Code.
79

i. Background

The prosecutor called Leung because three of Hajek’s jailhouse letters 

referred to Leung in a manner that, the prosecutor argued, suggested Hajek had 

attempted to enlist Leung into the conspiracy to kill Ellen and her family. The 

prosecutor argued that the letters showed the plot was formed before defendants 

went to the Wang residence. Both defendants objected to the admission of the 

letters, Hajek essentially on relevance grounds and Vo on hearsay grounds. 

Hajek’s counsel also objected to the prosecutor’s intention to call Leung to the 

stand because, she argued, the prosecution got “nothing” from its earlier 

interviews with Leung. She argued that “just by asking [Leung] were you 

threatened by [Hajek] . . . is inherently prejudicial.” Vo’s counsel similarly 

objected and requested that the trial court conduct an Evidence Code section 402 

hearing to test the admissibility of the testimony before allowing the prosecutor to 

call Leung as a witness at trial. The trial court rejected the request. 

Leung was called to the stand. He testified that he was a good friend of 

Hajek’s and a friend of Vo’s, and that Hajek, Vo, and Nguyen were friends with 

each other. Leung professed lack of memory when asked about any matter related 

to the crimes. In response to the prosecutor’s question about whether Leung had 

gone into hiding after the crimes because he was afraid Hajek would harm him, 

Leung testified, “It may have happened . . . . I can’t remember it.”

ii. Discussion

Although a prosecutor commits misconduct by intentionally eliciting 

inadmissible evidence, “ ‘ “merely eliciting evidence is not misconduct.” ’ ” 

(People v. Mills (2010) 48 Cal.4th 158, 199.)

Here, the prosecutor had a viable theory of the relevance and probative 

value of Leung’s testimony, i.e., it might help establish an existing conspiracy to 
80

kill Ellen and her family to show that Hajek attempted to recruit Leung to join that 

conspiracy. Hajek’s objection to Leung’s testimony was that he was likely to be a 

nonresponsive or hostile witness, based on Leung’s preliminary hearing testimony 

and interviews with the prosecutor’s investigators. Be that as it may, absent a 

showing that the prosecutor was operating in bad faith, the prosecutor was entitled 

to call the witness for whatever value he could derive from his testimony, 

including his demeanor on the stand. (People v. Scott (2011) 52 Cal.4th 452, 493 

[“a witness’s ‘demeanor is always relevant to credibility’ ”]; Evid. Code, § 780, 

subd.(a).) In this vein, it is clear, even from the cold transcript, that the jury could 

reasonably doubt Leung’s credibility regarding his professed lack of memory as to 

whether Hajek solicited him to join the conspiracy or whether he feared Hajek.

Moreover, to the extent defendants believed the prosecutor’s questions 

regarding those topics were improper, they could have objected, but for the most 

part they did not. Thus, they have forfeited any complaint on appeal regarding the 

propriety of those questions. In sum, the record establishes that the prosecutor 

called a witness he believed would be helpful to his case, and that the prosecutor’s 

questions were asked in a good faith belief that the witness had knowledge of 

those topics. (Cf. People v. Pearson (2013) 56 Cal.4th 393, 434 [“A prosecutor 

may not ask questions of a witness suggesting facts harmful to a defendant without 

a good faith belief that such facts exist.”].)

Finally, the trial court did not abuse its discretion by declining to conduct 

an Evidence Code section 402 hearing based on defense counsels’ concern that 

Leung would be a nonresponsive witness. (People v. Williams (1997) 16 Cal.4th 

153, 196 [A trial court’s “broad discretion” to determine the admissibility of 

evidence extends to “whether or not to decide [such] questions under Evidence 

Code section 402”].) Nor did the court abuse its discretion by declining to exclude 
81

Leung’s testimony under the provisions of Evidence Code section 352. (People v. 

Lancaster (2007) 41 Cal.4th 50, 83 [“courts have broad discretion to weigh the 

prejudicial impact of testimony against its probative value”].) 

f. Testimony of McRobin Vo 

Hajek contends the trial court erroneously allowed the prosecution to 

question Vo’s brother, McRobin Vo, about Hajek’s unresponsive answers to 

McRobin Vo’s questions regarding the crimes when he visited Hajek in jail. 

Hajek asserts that, in doing so, the trial court permitted the prosecutor to violate 

Doyle v. Ohio (1976) 426 U.S. 610. Hajek also asserts the testimony should have 

been excluded as unduly prejudicial pursuant to Evidence Code section 352. The 

claims are without merit.

McRobin Vo testified he had visited Hajek in jail. The prosecutor asked 

him if he had questioned Hajek about what happened at the Wang residence. The 

witness responded: “He just played it off about he didn’t really want to talk about 

it.” Hajek’s attorney objected. At a hearing outside the presence of the jury, 

counsel explained that questions about what Hajek had told the witness were 

irrelevant. The prosecutor indicated he did not intend to ask any further questions 

about those conversations, but he was interested in the witness’s “observations as 

to [Hajek’s] mental state.” The following day, before trial recommenced, Hajek’s 

attorney lodged an additional objection on Fifth Amendment grounds and also 

cited Evidence Code section 352. 

The Attorney General argues that Hajek has forfeited his Doyle claim 

because Hajek’s counsel objected only after McRobin Vo had already testified to 

the statement, and she did not then move to strike that testimony. We disagree. 

Hajek’s attorney objected to the testimony as soon as it came in. In the course of 

the hearing on the objection, she made Doyle and Evidence Code section 352 
82

arguments. Although counsel raised these points the following day, after the

evening recess, the discussion about the basis of this objection was ongoing, and 

she made these points before the prosecutor resumed his examination of McRobin 

Vo. 

Nonetheless, the argument is without merit. “In Doyle, the United States 

Supreme Court held that it was a violation of due process and fundamental 

fairness to use a defendant’s postarrest silence following Miranda warnings to 

impeach the defendant’s trial testimony. [Citation.]” (People v. Collins (2010) 49 

Cal.4th 175, 203.) Doyle does not apply where, as here, the conversation in which 

the defendant was silent involved a private party “absent a showing that such 

conduct was an assertion of [the defendant’s] rights to silence and counsel.” 

(People v. Eshelman (1990) 225 Cal.App.3d 1513, 1520.) In People v. Medina 

(1990) 51 Cal.3d 870, we held the jury could draw adverse inferences from the 

defendant’s silence when his sister asked him why he shot the victims, because the 

“record [did] not suggest that defendant believed his conversation with his sister 

was being monitored, or that his silence was intended as an invocation of any 

constitutional right.” (Id. at p. 890.)

Similarly, nothing in the record before us suggests that Hajek’s refusal to 

discuss the crimes with McRobin Vo was intended to be an invocation of his Fifth 

Amendment rights. Moreover, the prosecutor “did not attempt . . . to use the 

comment against defendant by inviting the jury to draw any adverse inferences 

from the remark.” (People v. Thomas (2012) 54 Cal.4th 908, 936.) 

We also reject Hajek’s assertion that admission of this brief testimony was 

an abuse of the trial court’s discretion under Evidence Code section 352. For 

purposes of that statute, prejudice “means evidence that tends to evoke an 

emotional bias against the defendant with very little effect on issues.” (People v. 
83

Crew (2003) 31 Cal.4th 822, 842.) The brief testimony was not an abuse of 

discretion, prejudicial or otherwise.

g. Statements and writings by and about Hajek 

Vo contends the admission of certain writings and statements by and about 

Hajek violated Vo’s confrontation rights under both Crawford v. Washington, 

supra, 541 U.S. 36, and the Aranda/Bruton rule. His claims either have been 

previously disposed of, or are forfeited or meritless, or both.

i. Moriarty’s testimony

Vo repeats his assertion that Moriarty’s testimony regarding her phone 

conversation with Hajek the night before the crimes violated Vo’s confrontation 

rights. We have previously considered and rejected this claim. (See ante, pt. 

II.B.3.a.)

ii. Tape of defendants’ conversation at the jail

Vo repeats his contention that admission of the audiotaped conversation 

between him and Hajek violated the Aranda/Bruton rule. We have previously 

considered and rejected this claim. (See ante, pt. II.B.3.b.) 

iii. Dr. Minagawa’s testimony that Hajek denied killing Su Hung

Vo repeats the argument he made in connection with his severance claim 

that Dr. Minagawa’s penalty phase testimony that Hajek denied killing Su Hung 

violated the Aranda/Bruton rule. We have previously considered and rejected this 

argument in the context of Vo’s severance claim. (See ante, pt. II.A.1.)
84

iv. Exhibit Nos. 63, 64, 65, 72, 73, 78, and 79

Exhibit Nos. 63, 64, 65, 72, 73, 78, and 79 are letters written by Hajek to 

Vo after their arrest.23 Vo asserts the prosecution’s use of these letters violated 

Vo’s confrontation rights, citing both Crawford v. Washington, supra, 541 U.S. 

36, and the Aranda/Bruton rule, because Hajek made statements incriminating Vo 

in the letters without being available for cross-examination.

As Vo concedes, exhibit Nos. 63 and 79 were not admitted into evidence 

and therefore could not have had any impact on his confrontation rights. While 

Vo claims the prosecutor quoted extensively from these letters, he fails to direct us 

to where in the record the prosecutor did so. Even if the prosecutor did quote from 

these letters, any claim as to the impropriety of his doing so is forfeited given Vo’s 

failure to object. Also forfeited is Vo’s objection to the admission of exhibit No.

64. Indeed, as noted, Vo joined the prosecutor in urging that the letter be admitted 

against Hajek. When the court admitted it against both defendants, Vo did not 

object.

Vo asserts he did object to the admission of page 3 of exhibit No. 65 and 

exhibit Nos. 72, 73, and 78. However, Vo’s counsel objected on confrontation 

grounds only with respect to exhibit No. 65 when he specifically invoked the 

Aranda/Bruton rule. His objections to exhibit Nos. 72, 73, and 78 were all rote 

and unelaborated objections on the grounds of hearsay, relevance, and Evidence

Code section 352, not the confrontation clause. 

Under Evidence Code section 353, subdivision (a), a reviewing court 

cannot grant relief on a claim that evidence was erroneously admitted unless a 

timely objection was made “and so stated as to make clear the specific ground of 

 

23 The letters are long and rambling. Given our conclusion that Vo has 

forfeited the claims he now attempts to assert, we find it unnecessary to quote the 

letters except as necessary to illuminate particular objections advanced by Vo. 
85

the objection or motion.” “ ‘What is important is that the objection fairly inform 

the trial court, as well as the party offering the evidence, of the specific reason or 

reasons the objecting party believes the evidence should be excluded, so the party 

offering the evidence can respond appropriately and the court can make a fully 

informed ruling.’ ” (People v. Geier (2007) 41 Cal.4th 555, 609.) By failing to 

comply with the statutory mandate of a timely and specific objection, Vo has 

forfeited his confrontation claim with respect to exhibit Nos. 72, 73, and 78.

Even if he had not, we would conclude there was no violation of his 

confrontation clause rights under Crawford. Private communications between 

inmates are not testimonial, and their admission would not violate the principle 

laid down in Crawford that bars the use at trial of testimonial out-of-court 

statements as to which no opportunity for cross-examination was afforded. 

(Crawford v. Washington, supra, 541 U.S. at p. 68; see U.S. v. Pelletier (1st Cir. 

2011) 666 F.3d 1, 9 [in-custody inmate conversations were not testimonial 

because “[t]hey were made not under formal circumstances, but rather to a fellow 

inmate with a shared history, under circumstances that did not portend their use at 

trial”].) Because “the confrontation clause is concerned solely with hearsay 

statements that are testimonial” (People v. Cage (2007) 40 Cal.4th 965, 981), and 

the letters are not testimonial, Vo’s rights under Crawford were not implicated by 

their admission.

Moreover, even if Vo’s Aranda/Bruton claim was preserved, any error, 

assuming error, would be harmless. Amid Hajek’s ramblings in exhibit No. 65, he 

writes that he and Vo are “terrorists” and that “we are going to get away with 

this.” In the first paragraph of exhibit No. 72, Hajek muses about the elements of 

attempted murder, drawing a distinction between “intent” and “preparation.” He 

writes: “So if anyone was going to kill the Wangs, they were only preparing to do 
86

so.” He writes further: “And if my main goal was to kill Ellen, there was no way 

we could do any act towards killing the family. Specially since I had (supposedly) 

said to (Tevya) that we were going to wait [until] we had everybody — then kill. 

Ellen was supposed to be last. So that means that we were only preparing to kill 

everyone. So that means we can’t be convicted of attempted murder! Sound good 

to you?’ In exhibit No. 73, in the context of complaining about his lawyer, Hajek 

writes, “And what do you mean tagged along and Boom in jail? I won’t say 

anymore. As for the case — WE ARE DOOMED.” In exhibit No. 78, Hajek 

writes, “The D.A. is supposed to have a peice [sic] of evidence that is a for sure 

that we planned to go over there,” and suggests the source of that evidence is 

“Bucket” (Leung).

As noted, Aranda/Bruton error is scrutinized under the Chapman harmless

beyond a reasonable doubt standard. (People v. Burney (2009) 47 Cal.4th 203, 

232.) This standard “ ‘ “ requir[es] the beneficiary of a [federal] constitutional 

error to prove beyond a reasonable doubt that the error complained of did not 

contribute to the verdict obtained.” [Citation.] “To say that an error did not 

contribute to the ensuing verdict is . . . to find that error unimportant in relation to

everything else the jury considered on the issue in question as revealed in the 

record.” ’ ” (People v. Pearson, supra, 56 Cal.4th at p. 463.)

For the most part, Hajek’s statements, rather than “expressly 

incrimina[ting]” Vo (Lewis, supra, 43 Cal.4th at p. 456), are ambiguous. They can 

be viewed as setting forth Hajek’s understanding of the legal and evidentiary case 

that is being prepared against them rather than as admissions that defendants 

committed the crimes. Hajek’s statements about the attempted murder charges are 

carefully cast in hypothetical language, his statement about being doomed appears 

to refer to asserted deficiencies in his lawyer’s representation and his reference to 
87

the prosecutor’s evidence is speculation on his part. While we agree that certain 

statements in exhibit No. 65 do expressly incriminate Vo, nonetheless they were 

inconsequential on the issue of guilt when viewed in relation to the totality of the 

evidence before the jury. Thus, even assuming admission of those statements

constituted Aranda/Bruton error, such error was harmless under the applicable 

Chapman standard.

h. Crime scene and autopsy photographs 

Vo, joined by Hajek, contends the trial court abused its discretion by 

admitting crime scene and autopsy photographs of the murder victim. We reject 

the claim. “ ‘ “The admission of allegedly gruesome photographs is basically a 

question of relevance over which the trial court has broad discretion. [Citation.] 

‘A trial court’s decision to admit photographs under Evidence Code section 352 

will be upheld on appeal unless the prejudicial effect of such photographs clearly 

outweighs their probative value.’ ” ’ ” (People v. Mills, supra, 48 Cal.4th at p. 

191.) In this case, where torture murder and torture-murder special circumstances 

were alleged and hotly contested, the autopsy photographs were undoubtedly 

relevant and probative on that issue. The photographs were disturbing, but they 

were not unnecessarily so. They “simply showed what had been done to the 

victim; the revulsion they induce is attributable to the acts done, not to the 

photographs.” (People v. Brasure (2008) 42 Cal.4th 1037, 1054.) Having 

examined the photographs, we conclude their admission fell well within the trial 

court’s broad discretion.

4. Instructional Error

a. Guilt phase instructions as a whole

Hajek, joined by Vo, asserts the multiplicity of instructions given in the 

guilt phase were “hopelessly confusing.” The assertion does not rise to a showing 
88

of error, much less reversible error. As the Attorney General points out, capital 

cases are frequently tried on multiple theories of liability. Absent a showing of 

error, “ ‘[w]e presume that jurors comprehend and accept the court’s directions. 

[Citation.] We can, of course, do nothing else. The crucial assumption underlying 

our constitutional system of trial by jury is that jurors generally understand and 

faithfully follow instructions.’ [Citation.]” (People v. Homick, supra, 55 Cal.4th 

at p. 867.)

b. Torture-murder special-circumstance instruction

Hajek, joined by Vo, contends an error in the torture-murder specialcircumstance instruction requires reversal. We find the error harmless under any

standard.

On the torture-murder special circumstance, the jury was instructed: “To 

find that the special circumstance referred to in these instructions as murder 

involving infliction of torture, is true, each of the following facts must be proved: 

[¶] 1. A defendant intended to kill, or with intent to kill, aided and abetted in the 

killing of a human being; [¶] 2. The defendant intended to inflict extreme cruel 

physical pain and suffering upon a living human being for the purpose of revenge, 

extortion, persuasion or for any sadistic purpose; [¶] 3. The torturous acts were 

committed while the victim was alive; [¶] 4. A defendant did in fact inflict 

extreme cruel physical pain and suffering upon a living human being no matter 

how long its duration; [¶] 5. Awareness of pain by the deceased is not a necessary 

element of torture.” (Italics added.)

Defendants focus on the discrepancy between the use of “A defendant” in 

the first and fourth sentences of the instruction and the use of “The defendant” in 

the second sentence. (Italics added.) They contend that, as given, the instruction 

did not require a finding that each defendant individually intended to kill but only 
89

that “a” defendant intended to kill. (People v. Davenport (1985) 41 Cal.3d 247, 

271 [Torture-murder special circumstance requires proof of intent to kill and intent 

to torture the victim].) They claim, moreover, that the inconsistencies between 

these sentences may have confused the jury.

A somewhat similar argument was advanced in People v. Wilson, supra, 44 

Cal.4th 758. In Wilson, a different version of the instruction was given but, as in 

the instruction given here, there was a similar discrepancy between the use of the 

phrases “A defendant” and “The defendant.” In the second sentence of the 

instruction, the word ‘The’ was crossed out, and the instruction read: “ ‘[A] 

defendant intended to inflict extreme cruel physical pain and suffering upon a 

living human being for the purpose of revenge, extortion, persuasion or for any 

sadistic purpose,’ ” while the third sentence read, “ ‘The defendant did in fact 

inflict extreme cruel physical pain and suffering upon a living human being no 

matter how long its duration.’ ” (Id. at pp. 802-803, fn. omitted.) The defendant 

argued that the discrepancy was critical, because there were a number of other 

participants in the crimes, and “[w]ithout a specific finding that he personally 

intended to torture the victim . . . the jury may have believed that although he may 

have participated in the acts of torture, only [the other participants] actually 

harbored the requisite intent to torture the victim.” (Id. at p. 803.)

Preliminarily, we noted: “When an appellate court addresses a claim of 

jury misinstruction, it must assess the instructions as a whole, viewing the 

challenged instruction in context with other instructions, in order to determine if 

there was a reasonable likelihood the jury applied the challenged instruction in an 

impermissible manner.” (People v. Wilson, supra, 44 Cal.4th at p. 803.) Although 

we concluded that instruction was “technically erroneous,” we examined the 

evidence and found the error harmless because, among other things, the jury had 
90

evinced no confusion regarding the instruction, there was substantial evidence that 

the defendant personally harbored the intent to torture the victim, and the jury’s 

finding regarding the other elements of the torture instruction precluded the 

possibility that it would not have found intent to torture. (Id. at p. 804.)

Here, the issue is whether the instruction properly conveyed the 

requirement of each defendant’s having intended to kill the victim. As we did in 

Wilson, we agree that the instruction was erroneous in light of our decision in 

People v. Davenport, supra, 41 Cal.3d at page 271. But, as in Wilson, we 

conclude the error was harmless under any standard. (People v. Wilson, supra, 44 

Cal.4th at p. 804.)

Hajek’s statement to Moriarty that he planned to revenge himself on Ellen 

by killing her and her family and making it look like a robbery provided 

compelling evidence of intent to kill the murder victim. That both defendants 

intended to kill was borne out by their concerted actions. For example, defendants 

parked their vehicle some distance from the house, brought gloves and weapons 

with them, and gained uninvited access to the Wang residence. Once inside, 

defendants held members of the family hostage while awaiting Ellen’s arrival and 

refused offers by Cary and Tony to negotiate. Although defendants wore gloves, 

presumably to avoid leaving fingerprints, they made no effort to hide their 

identities from the victims, suggesting they intended to leave no witness alive. 

The murder victim, and later Tony, were bound and isolated from the rest of their 

family members so as to render them maximally vulnerable and unable to resist or 

to call out for help. Defendants ransacked the house, evidently to give the 

appearance that a robbery had occurred. These actions were consistent with their 

agreed plan to kill Ellen and each member of her family. On this record, we find 

any error harmless.
91

Hajek contends that the prosecutor’s closing argument conflated the 

elements of torture murder and the torture-murder special circumstance, adding to 

the jury’s confusion about the inconsistencies in the instruction. He claims that 

the prosecutor attributed a causal element — the torture caused the victim’s death 

— to the special circumstance, when causation was an element of torture murder 

only. He also claims the prosecutor’s argument confused the jury about which 

charge required the intent to kill. There is no indication in the record, however, 

that the jurors were confused. (See People v. Wilson, supra, 44 Cal.4th at p. 804 

[“there is no indication the jury was aware of the slight difference between the 

written and oral versions of the instructions, as it asked no questions about this 

point”].) To the extent the claim is that the prosecutor misled the jury in closing 

argument, Hajek’s failure to object to the prosecutor’s comments forfeited such 

claim. In any event, the prosecutor did not argue that a finding of intentional 

killing as to each defendant was not required to find the torture-murder special 

circumstance true. Moreover, Hajek’s counsel clearly told the jury it “must have 

an intentional killing” before it could find true the torture-murder special 

circumstance. 

In further support of his claim, Hajek cites People v. Petznick (2003) 114 

Cal.App.4th 663. In Petznick, the trial court erroneously instructed the jury that it 

could find the torture-murder special circumstance true if it found “a defendant” 

rather than “the defendant” intended to torture the victim. (Id. at p. 686.) 

Although the defendant was tried alone, there were three other participants in the 

crime, all of whom were referred to as defendants in the instructions. The Court 

of Appeal concluded that, “[t]hus, the jury could easily have understood a 

defendant as referring to any one of the four participants.” (Ibid.) It concluded 

the error was prejudicial because the prosecutor’s argument “did not refer to the 
92

mental state requirement for the torture-murder special circumstance . . . so we 

cannot say that argument might have cured the error,” and “[t]he jury 

demonstrated its confusion on the issue of intent by its question concerning the 

conspiracy instructions.” (Ibid.) Moreover, “the evidence that defendant intended 

to torture the victim [was not] so overwhelming as to convince us the error was 

harmless.” (Ibid.)

Petznick is distinguishable. In the case before us, the evidence of each 

defendant’s intent to kill was compelling. The jury demonstrated no confusion 

regarding the intent issue posed by the instruction, and Hajek’s attorney 

specifically told the jury it could not find the special circumstance true absent an 

intentional killing. Accordingly, Petznick does not support a finding of prejudicial 

error here. 

c. Accomplice instructions

Vo testified in his own behalf, denying any knowledge of, or responsibility 

for, Su Hung’s death. On appeal, Hajek contends the trial court should have 

instructed, sua sponte, with CALJIC No. 3.18, which cautions the jury that the 

testimony of an accomplice “should be viewed with caution.” We rejected the 

same argument in People v. Abilez (2007) 41 Cal.4th 472, where, as here, a 

codefendant testified in his own behalf. “At the time of trial, there was no law 

indicating that a court must provide CALJIC No. 3.18 sua sponte when a 

codefendant introduces accomplice testimony, and defendant did not request such 

an instruction.” (Id. at p. 519.) Hajek concedes that Abilez applies to this case as 

well but urges us to reconsider our decision. He offers no persuasive reason to do 

so.
93

d. Conspiracy instructions

Hajek, joined by Vo, contends that the conspiracy instructions were 

confusing and incomplete, and thus required reversal of his conviction. 

Specifically, he cites as instructional error: (1) the failure to identify any overt 

acts; (2) the failure to properly identify the object of the conspiracy, and; (3) the 

failure to give CALJIC No. 6.25, a unanimity instruction. These claims are 

without merit.

i. Overt act

The jury was instructed with CALJIC No. 6.10.5, which, as relevant here, 

requires “proof of the commission of at least one overt act” in order to find that a 

defendant is a member of a conspiracy. The instruction defines the term “overt 

act” as “any step taken or act committed by one or more of the conspirators which 

goes beyond mere planning or agreement to commit a public offense and which 

step or act is done in furtherance of the accomplishment of the object of the 

conspiracy.” Hajek contends the instruction was defective because it did not 

identify a specific overt act.24 We have repeatedly rejected this claim. (E.g., 

Valdez, supra, 55 Cal.4th at p. 151; People v. Prieto (2003) 30 Cal.4th 226, 251.) 

Hajek offers no persuasive reason to reconsider those decisions.

ii. Failure to properly identify the object of the conspiracy

Hajek contends the instructions may have confused the jury by failing to 

properly identify the object or target crimes of the conspiracy. CALJIC No. 6.10.5

as given instructed the jury that “[a] conspiracy is an agreement between two or 

 

24 The Attorney General contends that Hajek forfeited this and other claims of 

instructional error regarding the conspiracy instructions by failing to object to 

them or seek modification in the trial court. In a similar circumstance, we 

declined to find forfeiture given the substantial rights involved. (Valdez, supra, 55 

Cal.4th at p. 151.)
94

more persons with a specific intent to agree to commit a public offense, such as

Burglary and Murder . . . .” (Italics added.) Hajek contends the italicized phrase 

suggested to the jury that burglary and murder were merely illustrative of potential 

target crimes rather than identifying the actual target crimes at issue here. He also 

argues that, because CALJIC No. 6.11 told the jury it must decide whether “the 

crime alleged in [Count] I (murder) was a natural and probable consequence” of 

the target crimes (burglary and murder), the instruction “left the jury with the 

strange task of determining whether murder could be the natural and probable 

consequence of an agreement to commit murder.” Finally, he claims the trial 

court erred by not giving CALJIC No. 6.25, a unanimity instruction.

In reviewing a claim of instructional error, the ultimate question is whether 

“there was a reasonable likelihood the jury applied the challenged instruction in an 

impermissible manner.” (People v. Wilson, supra, 44 Cal.4th at p. 803.) “[T]he 

correctness of jury instructions is to be determined from the entire charge of the 

court, not from a consideration of parts of an instruction or from a particular 

instruction.” (People v. Burgener (1986) 41 Cal.3d 505, 538.) “Moreover, any 

theoretical possibility of confusion [may be] diminished by the parties’ closing 

arguments . . . .” (People v. Garceau (1993) 6 Cal.4th 140, 189.) “ ‘ “Jurors are 

presumed to be intelligent, capable of understanding instructions and applying 

them to the facts of the case.” ’ ” (People v. Carey (2007) 41 Cal.4th 109, 130.)

Bearing these principles in mind, we reject Hajek’s claim that the trial 

court’s reference to “a public offense, such as Murder or Burglary” (italics added) 

may have led to jury to believe those offenses were only illustrative of possible 

target crimes. The prosecutor’s closing argument focused only on these two 

offenses as the target crimes, thus clarifying any potential ambiguity in the 
95

instruction. Hajek points to nothing in the record that would indicate any 

confusion by the jury on this point.

We also reject Hajek’s claim that the jury would have been incapable of 

distinguishing between burglary and murder for purposes of the natural and 

probable consequences rule set forth in CALJIC No. 6.11. Again, the prosecutor’s 

closing argument is relevant. After identifying burglary as a target offense of the 

conspiracy, the prosecutor told the jury that, pursuant to the instructions, “if a 

number of persons conspired together to commit a burglary and if the life of 

another is taken by one or more of them . . . [as] an ordinary and probable result of 

the pursuit of that purpose, all the co-conspirators are deemed in the law to be 

equally guilty of murder in the first degree.” Moreover, to assume the jurors 

would not see the tautological conundrum of determining whether murder is a 

probable and natural consequence of an agreement to commit murder is to 

denigrate the ability of the jurors to understand and correlate the instructions.

Regarding the trial court’s failure to instruct on unanimity pursuant to 

CALJIC No. 6.25, the short answer, as Hajek recognizes, is that it is appropriate 

only where “it is charged that defendant conspired to commit two or more felonies 

and the commission of such felonies constitute but one offense of conspiracy.” 

(Use Note to CALJIC No. 6.25 (5th ed. 1988).) The substantive offense of 

conspiracy was not charged here. Conspiracy was merely one theory of liability 

for murder. Under such circumstances, the jury must unanimously agree that the 

defendant is guilty of murder, but “it need not decide unanimously by which 

theory he is guilty.” (People v. Santamaria (1994) 8 Cal.4th 903, 918.) “The key 

to deciding whether to give the unanimity instruction lies in considering its 

purpose. . . . [T]he unanimity instruction is appropriate ‘when conviction on a 

single count could be based on two or more discrete criminal events,’ but not 
96

‘where multiple theories or acts may form the basis of a guilty verdict on one 

discrete criminal event.’ ” (People v. Russo (2001) 25 Cal.4th 1124, 1134-1135.) 

Accordingly, CALJIC No. 6.25 was not required in this case.

Vo’s complaints about the conspiracy instructions reiterate his objection to 

the use of uncharged conspiracy as a theory of liability. Thus, he claims error 

because the jurors were not required to make explicit findings about the nature and 

the scope of the conspiracy, whether those findings were unanimous, or the 

quantum of proof they employed. As noted, no such findings were required in this 

case because conspiracy was not charged as a substantive offense.

Vo also purports to see a conflict between certain conspiracy instructions. 

CALJIC No. 6.15 as given informed the jurors: “No act or declaration of a 

conspirator that is an independent product of [his] own mind and is outside the 

common design and not a furtherance of that design is binding upon [his] coconspirators, and they are not criminally liable for any such act.” Vo contends that 

this instruction is in conflict with CALJIC Nos. 6.12 and 6.24. The former 

instructed the jury, in relevant part: “The formation and existence of a conspiracy 

may be inferred from all circumstances tending to show the common intent . . . .” 

(CALJIC No. 6.12.) The latter instructed the jury, in pertinent part: “Evidence of 

a statement made by one alleged conspirator other than at this trial shall not be 

considered by you as against another alleged conspirator unless you determine: . . . 

[¶] 3. That such statement was made in furtherance of the objective of the 

conspiracy.” (CALJIC No. 6.24.)

There is patently no conflict among these instructions. If an “act or 

declaration” is the “independent product of [a conspirator’s] own mind,” and 

“outside the common design,” then it is clearly not to be considered as a 
97

“circumstance[] tending to show the common intent,” nor as a “statement . . . in 

furtherance of the objective of the conspiracy” under the instructions.

In sum, we reject defendants’ challenges to the conspiracy instructions 

given here.

e. Mental disease and defect instructions 

Hajek’s defense was that he suffered from a mental impairment such that he 

did not form the intent required for the first degree murder and attempted murder 

counts and the special circumstances. The court provided two instructions 

addressing Hajek’s mental impairment defense. The first, a modification of 

CALJIC No. 4.21.1 addressing first degree premeditated murder, torture murder, 

murder by means of lying in wait, and attempted murder, informed the jury that 

“[i]f the evidence shows that a defendant was mentally ill, suffered from a mental 

disease or defect at the time of the alleged crime, you should consider that fact in 

determining whether or not such defendant had such mental state, in other words, 

whether he did in fact premeditate and deliberate. [¶] If from all the evidence you 

have a reasonable doubt whether the defendant had such mental state, you must 

find that defendant did not have such mental state.” The second instruction 

informed the jury: “Evidence has been received regarding a mental disease, 

mental defect or mental disorder of the defendant Stephen Haje[k] at the time of 

the commission of the crime charged namely, Murder and Attempted Murder in 

Counts 1, 2, 3, 4 and 5. You may consider such evidence solely for the purpose of 

determining whether [defendant Hajek] actually formed the mental state 

premeditated, deliberated which is an element of the crime charged in Counts 1, 2, 

3, 4 and 5, to wit: Murder and Attempted Murder.” 

On appeal, Hajek challenges the adequacy of these instructions. First, he 

argues that the trial court failed to instruct the jury that it was to apply these 
98

instructions to the aiding and abetting instructions. Second, he contends that the 

use of the permissive language “should” and “may” in the instructions improperly 

allowed the jury to disregard his mental impairment evidence. The claims are 

without merit.25

i. Aiding and abetting

Hajek contends that the mental disease and defect instructions given in this 

case were not specifically correlated to his potential liability as an aider and 

abettor and were, therefore, inadequate and misleading. For this proposition he 

relies on our decision in People v. Mendoza (1998) 18 Cal.4th 1114 (Mendoza).

As we explained in Letner and Tobin, supra, 50 Cal.4th 99, Mendoza

concluded that “(1) evidence of voluntary intoxication is relevant to the extent it 

establishes whether an aider and abettor knew of the direct perpetrator’s criminal 

purpose and intended to facilitate achieving that goal, even in cases in which the 

perpetrator intended to commit a ‘general intent’ crime [citation]; and (2) any 

instructions to the jury concerning voluntary intoxication should inform the jury of 

the possible effect of voluntary intoxication upon the aider and abettor’s mental 

state [citation].” (Letner and Tobin, at p. 186.) In Letner and Tobin, the 

defendants argued the trial court’s voluntary intoxication instructions “failed to 

explain to the jury how that condition could affect the mental state of an aider and 

abettor.” (Ibid.)

We concluded any error was harmless. Quoting Mendoza, we explained: 

“[W]e ‘review the instructions as a whole to determine whether it is “reasonably 

 

25 The Attorney General contends that Hajek has forfeited his claim because 

he failed to object to the instructions at trial. We will entertain his claim pursuant 

to section 1259, which states in part: “The appellate court may also review any 

instruction given, refused or modified even though no objection was made thereto 

in the lower court, if the substantial rights of the defendant were affected thereby.”
99

likely the jury misconstrued the instructions as precluding it from considering” the 

intoxication evidence in deciding aiding and abetting liability. [Citation.] Any 

error would have the effect of excluding defense evidence and is thus subject to 

the usual standard for state law error: “the court must reverse only if it also finds a 

reasonable probability the error affected the verdict adversely to defendant.” 

[Citation.]’ ” (Letner and Tobin, supra, 50 Cal.4th at p. 187.) On the substantive 

point, we noted: “Although the voluntary intoxication instructions did not 

specifically mention aiding and abetting, they did not preclude the jury’s use of 

evidence of intoxication in evaluating whether defendants aided and abetted, that 

is, whether, pursuant to the trial court’s other instructions, one defendant knew of 

the other defendant’s criminal purpose and intentionally aided the commission of 

the crime. Nor did the prosecutor argue that the jury could not consider voluntary 

intoxication in determining whether a defendant who was an aider and abettor of 

the crimes formed the mental state required for aiding and abetting. There is 

nothing in the record to indicate the jury would not have understood that the 

mental states set forth in the voluntary intoxication instructions could apply both 

to the mental states required of a direct perpetrator and to those required of an 

aider and abettor. . . . For these reasons, any error in the instructions did not 

preclude the jury’s consideration of defense evidence, nor is it reasonably probable 

that different instructions would have resulted in a verdict more favorable to 

defendants.” (Ibid.)

This analysis applies with equal force to Hajek’s claim that the trial court’s 

instruction failed to correlate the mental disease and defects instructions with 

those pertaining to aiding and abetting liability. Here, as in Letner and Tobin, 

nothing in those instructions precluded the jury from applying them to the question 

of Hajek’s potential liability as an aider and abettor, nor did the prosecutor suggest 
100

in his argument the jury could not do so. Nor is there any indication in the record 

that the jury did not understand the mental disease or defect instructions were also 

applicable to the mental state required of an aider and abettor. Furthermore, as the 

Attorney General points out, the jury rejected Hajek’s mental impairment defense 

by properly convicting him of four counts of attempted murder with findings that 

the offenses were “willful, premeditated, and deliberated.” Accordingly, as in

Letner and Tobin, any error was harmless.

ii. Permissive language

Hajek contends that the use of “should” and “may” in the mental disease or 

defect instructions quoted above permitted the jury to disregard entirely his mental 

impairment defense. Not so.

CALJIC No. 4.21.1, as given here, provided: “If the evidence shows that a 

defendant was mentally ill, suffered from a mental disease or defect at the time of 

the alleged crime, you should consider that fact in determining whether or not such 

defendant had such mental state, in other words, whether he did in fact 

premeditate and deliberate.” The next paragraph, however, instructed the jury that 

“[i]f from all the evidence you have a reasonable doubt, you must find that 

defendant did not have such mental state.” (Italics added.)

The principle that jury instructions are read as a whole and in relation to 

one another (People v. Burgener, supra, 41 Cal.3d at p. 538) applies equally to the 

different parts of a single instruction. When so construed, the foregoing 

instruction was clear in requiring the jury to consider Hajek’s mental impairment 

evidence in assessing whether he possessed the requisite mental state. This is 

because the jury could obviously not reach the issue of whether such evidence 

created a reasonable doubt without first considering it. We presume the jurors 

were capable of reading, understanding, and applying the instruction in this 
101

commonsense manner rather than in Hajek’s hypertechnical manner. (People v. 

Carey, supra, 41 Cal.4th at p. 130.) 

Hajek’s challenge to the second mental disease or defect instruction is 

equally unpersuasive. That instruction was a limiting instruction that, after 

referencing Hajek’s mental impairment evidence, told the jury that its use was 

confined to determining whether Hajek actually formed the requisite mental state 

for the charged crimes. That is the meaning of the use of the word “may” in the 

instruction, as is made clear by the word “solely” that follows it: “You may

consider such evidence solely for the purpose of determining whether [defendant 

Hajek] actually formed the mental state premeditated, deliberated which is an 

element of the crimes charged . . . .” (Italics added.) Thus, contrary to Hajek’s 

reading, the instruction did not authorize the jury to disregard his mental 

impairment evidence.

f. Motive instruction

As given, CALJIC No. 2.51 instructed the jury: “Motive is not an element 

of the crime charged and need not be shown. However, you may consider motive 

or lack of motive as a circumstance in this case. Presence of motive may tend to 

establish guilt. Absence of motive may tend to establish innocence. You will 

therefore give its presence or absence, as the case may be, the weight to which you 

feel it is entitled.”

Hajek contends the instruction improperly permitted the jury to convict him 

based on motive alone and lessened the prosecutor’s burden of proof. The 

Attorney General asserts the claim was forfeited, but we have held otherwise. 

(People v. Cleveland (2004) 32 Cal.4th 704, 750.) On the merits, we have rejected 

similar claims and do so again here. (People v. Watkins, supra, 55 Cal.4th at p. 
102

1029; People v. Friend (2009) 47 Cal.4th 1, 53; People v. Riggs (2008) 44 Cal.4th 

248, 314; People v. Cleveland, supra, 32 Cal.4th at p. 750.)

g. Instructing on first degree murder when the information charged 

only second degree malice murder

Hajek, joined by Vo, argues the trial court erred by instructing on first 

degree premeditated murder and felony-murder theories when the indictment 

charged him only with murder with malice aforethought under section 187. 

Defendants assert that the trial court lacked jurisdiction to try them for first degree 

murder, and that by doing so the court violated their rights to due process, a jury 

trial, and to a fair and reliable jury trial. As defendants acknowledge, we have 

considered and rejected these contentions many times before. (People v. Brasure, 

supra, 42 Cal.4th at p. 1057, and cases cited.) Defendants provide no persuasive 

reason for us to reconsider those decisions.

h. Failure to instruct that jury must unanimously agree on theory of 

first degree murder 

Hajek, joined by Vo, contends the trial court’s failure to instruct the jury 

that it must unanimously agree on a theory of first degree murder (premeditated or 

felony murder) violated their due process rights, right to a unanimous verdict, and 

to a fair and reliable jury trial. As defendants acknowledge, we have previously 

considered and rejected this argument. (People v. Loker (2008) 44 Cal.4th 691, 

707-708.) We do so again.

i. Dilution of requirement of proof beyond a reasonable doubt 

Hajek contends that three instructions given on circumstantial evidence 

(CALJIC Nos. 2.02, 8.83, and 8.83.1) and seven other instructions collectively 

“vitiated” the reasonable doubt instruction (CALJIC No. 2.90). Those other seven 

instructions are: the instruction pertaining to the respective duties of the judge and 
103

jury (CALJIC No. 1.00); discrepancies in testimony (CALJIC No. 2.21.1); 

willfully false witnesses (CALJIC No. 2.21.2); weighing conflicting testimony 

(CALJIC No. 2.22); sufficiency of the evidence of a single witness (CALJIC No. 

2.27); motive (CALJIC No. 2.51); and flight (CALJIC No. 2.52). Vo challenges 

the reasonable doubt instruction itself as well as the circumstantial evidence 

instructions. The United States Supreme Court has upheld our reasonable doubt 

instruction. (Victor v. Nebraska (1994) 511 U.S. 1, 6, 10-17.) We have 

previously considered and rejected similar challenges to the remaining instructions 

challenged here, and we do so again. (See, e.g., People v. Carey, supra, 41 

Cal.4th at pp. 129-131 [discussing and rejecting similar challenges to CALJIC 

Nos. 2.02, 8.83, 8.83.1,1.00, 2.21.1, 2.21.2, 2.22, 2.27, 2.51.]; People v. Stewart 

(2004) 33 Cal.4th 425, 521 [CALJIC Nos. 2.01, 2.02, 8.83.1].)

j. Aiding and abetting instructions 

Vo, joined by Hajek, contends the aiding and abetting instructions given in 

this case were confusing and permitted the jury to convict them without requiring 

a finding that defendants “personally possess the requisite intent for the charged 

offenses.” The claim is without merit.

A good deal of the argument criticizes the conspiracy instructions, not the 

aiding and abetting instructions. We have already discussed and rejected 

defendants’ challenges to the conspiracy instructions. (See ante, pt. II.B.4.d.) 

They now contend the jury may have concluded that each defendant’s membership 

in the conspiracy was sufficient to find he was an aider and abettor without finding 

he had the requisite intent for aiding and abetting. This claim is untethered to 

anything in the record except a question the jury asked during its deliberations 

regarding the lying-in-wait special circumstance, which we discuss below.
104

Although our reversal of the lying-in-wait special circumstance renders 

moot any discussion of instructional error with respect to it, defendants make the 

broader claim that this alleged error infected the issue of intent on each offense. 

Accordingly, we will discuss the substantive point.

In support of their claims, defendants cite People v. Beeman (1984) 35 

Cal.3d 547. Beeman, however, is distinguishable. In Beeman, we concluded that 

“the weight of authority and sound law require proof that an aider and abettor act 

with knowledge of the criminal purpose of the perpetrator and with the intent or 

purpose either of committing, or of encouraging or facilitating commission of, the 

offense.” (Id. at p. 560.) We found further that the then-standard aiding and 

abetting instruction was inadequate because it failed to require the jury to find that 

intent as a condition of convicting a defendant as aider and abettor. (Ibid.)

Here, however, the jury was correctly instructed that “[a] person aids and 

abets the commission or attempted commission of a crime when he or she, [¶] (1) 

with knowledge of the unlawful purpose of the perpetrator and [¶] (2) with the 

intent or purpose of committing, encouraging, or facilitating the commission of the 

crime, by acts or advice aids, promotes, encourages or instigates the commission 

of the crime.” There was no Beeman instructional error. 

Nonetheless, defendants contend a question posed by the jury during 

deliberations indicated it may have been confused about the intent requirement for 

aiding and abetting, and the court’s actions in response were inadequate to dispel 

that confusion. We are not persuaded.

On the third day of guilt phase deliberations, the jury sent a note asking 

about the interplay of two instructions (instruction Nos. 57 and 59) pertaining to 

the lying-in-wait special circumstance in the event the jurors were uncertain about 
105

whether a defendant was the actual perpetrator, a conspirator, or an aider and 

abettor. 

The jury’s note read: “(p. 57) [¶] 3 Under special circumstances: If a 

‘defendant’ is determined to be an ‘aider and abettor’ or a ‘co-conspirator’ does he 

then become: ‘(The)(A) defendant on page 59, item #1 which reads: [¶] #1. 

(The)(A) defendant intentionally killed the victim.”

Instruction No. 57 read, in relevant part, “If you find that defendant was not 

the actual killer of a human being, or if you are unable to decide whether the 

defendant was the actual killer or an aider and abettor or co-conspirator, you 

cannot find the special circumstance to be true as to that defendant unless you are 

satisfied beyond a reasonable doubt that such defendant with the intent to kill 

aided, abetted, counseled, commanded, induced, solicited, requested, or assisted 

any actor in the commission of the murder in the first degree.” Instruction No. 59 

stated: “To find that the special circumstance, referred to in these instructions as 

murder while lying in wait, is true, each of the following facts must be proved: [¶] 

1. [The] [A] defendant intentionally killed the victim, and [¶] 2. The murder was 

committed while [the] [a] defendant was lying in wait.”

When the court questioned the foreperson about the note, he explained that 

some jurors wanted to know whether, if a defendant “fell into any one of the three 

categories” of actual perpetrator, aider and abettor, or coconspirator, that 

defendant would then “automatically be considered” “under [instruction No.] 59,” 

a defendant who “intentionally killed the victim.” Outside the presence of the 

jury, both defense counsel argued that the jury was asking whether it was 

sufficient to find a defendant was an aider or abettor or a coconspirator to find the 

special circumstance true, or if the jury must also find an intent to kill. The trial 

court reconvened the jury and explained three times that the jury could not find the 
106

special circumstance true without finding the defendant harbored the requisite 

intent. The court explained, “You have to go one step further . . . . And you have 

to put the intent to kill . . . . I mean it goes back to the aider, abettor instruction, 

you can’t be an aider, abettor unless you have the intent.” The foreperson replied, 

“That answers the question.” Outside the presence of the jury, Vo’s counsel 

declared himself “satisfied with the court’s explanation.” Hajek’s counsel added, 

“So was I, Your Honor.” 

Defendants assert on appeal that a “reasonable interpretation of the jury 

note is that jurors wanted to know whether membership in the uncharged, 

unproven, amorphous conspiracy supplied the ‘intentional killing’ requirement for 

the [lying-in-wait] special circumstance.” Even assuming this interpretation of the 

note is reasonable, the trial court’s response, emphasizing that an intent to kill 

must also be found, laid the jury’s concern to rest.

As noted, based on this exchange, defendants further assert the jury’s 

confusion extended to the question of intent as to each offense, and not merely the 

lying-in-wait special circumstance. This claim is unsupported by anything in the 

record, and we reject it.

k. Failure to limit instruction on Hajek’s conduct and mental defenses 

to Hajek

Vo contends that various of his constitutional rights were violated because 

instructions pertaining to Hajek’s conduct and mental state were not limited to 

him. The argument is meritless.

The jury was instructed that it had to decide the guilt of each defendant 

separately; that some evidence was admitted against one defendant only and could 

only be considered against him; and that some evidence was admitted for a limited 

purpose and could not be considered for any other purpose. Furthermore, 
107

instructions pertaining to mental state defenses, witness intimidation, and firearm 

use specifically named Hajek. The jury could only have understood the 

instructions pertaining to prearrest and postarrest statements to refer to Hajek, in 

light of evidence of his conversation with Moriarty, his postarrest letters, and the 

absence of comparable evidence pertaining to Vo.

The jurors are presumed to understand, follow, and apply the instructions to 

the facts of the case before them. (People v. Carey, supra, 41 Cal.4th at p. 130.) 

Vo points to nothing in the record that supports nonapplication of this presumption 

with respect to the instructions about which he complains. Moreover, he could 

have sought appropriate specific limiting instructions if he felt they were 

necessary, but did not do so. (Evid. Code, § 355.) Absent such request, the trial 

court was under no obligation to give such limiting instructions. (People v. 

Cowan (2010) 50 Cal.4th 401, 479-480.)

5. Prosecutorial Misconduct

Hajek contends the prosecutor engaged in misconduct during his closing 

argument by repeatedly referring to defense counsel’s “salesmanship.” The 

argument is without merit.

At several points during his closing argument, the prosecutor referred to 

defense counsel’s “salesmanship,” as, for example, when he commented about 

Hajek’s counsel claim that, because of his mental impairment, Hajek was guilty of 

no more than second degree murder: “[I]t was particularly effective on her part, I 

think, to admit to you, to tell you what she is after, which is a second degree 

murder, which avoids all responsibility for any major penalty, is a garden variety, 

every day average type of murder where’s there’s no plan. [¶] And she told you 

actually that this was such a case. When you think about it that’s amazing. That 

is really an incredible job of salesmanship, to get you to think about that even.” 
108

Hajek’s counsel eventually objected to the prosecutor’s use of the term 

“salesmanship.” The court overruled the objection. The prosecutor then 

responded, “If she finds salesmanship — I will strike that word and call it 

excellent lawyering.”

Hajek accuses the prosecutor of disparaging the truthfulness of his trial 

counsel. We are not persuaded. “It was clear the prosecutor’s comment was 

aimed solely at the persuasive force of defense counsel’s closing argument, and 

not at counsel personally. We have found no impropriety in similar prosecutorial 

remarks. [Citations.]” (People v. Zambrano (2007) 41 Cal.4th 1082, 1155.) Nor 

do we find any impropriety here.

6. Cumulative Effect of Error

Defendants contend the cumulative effect of guilt phase errors requires 

reversal of their convictions. We have found that insufficient evidence of the 

lying-in-wait special circumstance requires reversal of that finding. We have also 

concluded the gun use enhancements the jury found as to Hajek cannot be 

sustained and must be changed to deadly weapon enhancements. None of these 

errors, whether considered individually or in combination, requires reversal of the 

rest of the judgment. Apart from the foregoing, defendants have “demonstrated 

few errors,” and we have determined that each such error or possible error is 

“ ‘harmless when considered separately. Considering them together, we likewise 

conclude that their cumulative effect does not warrant reversal of the judgment[s].’ 

[Citation.]” (People v. Homick, supra, 55 Cal.4th at p. 884.)

C. Penalty Phase Issues

1. Decision to Charge Defendants with Capital Murder 

Defendants argue that the death penalty statute is unconstitutional because 

it allows prosecutors standardless discretion in seeking the death penalty. Hajek 
109

illustrates his argument by comparing the facts of this case to seven other cases 

prosecuted by the Santa Clara County District Attorney in which the death penalty 

was not sought. Our prior decisions have rejected such claims. “Prosecutorial 

discretion to select those death-eligible cases in which the death penalty will 

actually be sought is not constitutionally impermissible. [Citations.] [¶] 

Comparative intercase proportionality review by the trial or appellate courts is not 

constitutionally required. [Citations.]” (People v. Snow (2003) 30 Cal.4th 43, 

126-127; Crittenden, supra, 9 Cal.4th at pp. 156-157.) We adhere to those 

decisions.

2. Denial of Vo’s Request for a Continuance

On June 5, 1995, following Vo’s conviction, his trial counsel moved for a 

continuance to prepare for the penalty phase. Counsel expressed surprise that Vo 

had been convicted. He complained about his difficulties in obtaining payment 

from the county for his experts, cocounsel, and for himself. He cited unspecified 

“instructional issues” he and cocounsel had “not attended to,” as well as the fact 

he had evidently not yet spoken to all his penalty phase witnesses. He also 

referred to the “stress” of representing a capital defendant. The trial court noted 

that the case was four years old and that trial counsel had represented Vo since the 

preliminary hearing. The court further stated that, in its view, the facts of the case 

were not complicated and that counsel had had “more than a sufficient amount of 

time to become adequately prepared.” The court denied the motion.

Vo contends the trial court abused its discretion because its denial of a 

continuance prevented him from fully developing mitigating evidence. He cites a 

declaration submitted after the penalty phase trial by Vincent N. Schiraldi, the 

executive director of the Center on Juvenile and Criminal Justice (CJCJ), 
110

summarizing Vo’s family background as additional evidence he could have 

presented had the continuance been granted. The claim is without merit.

First, counsel did not explicitly cite the need to develop evidence pertaining 

to Vo’s family background as the reason for which he sought a continuance. 

Second, several months earlier counsel had represented to the court that 

investigation into Vo’s family background for the penalty phase trial had begun as 

early as December 1994. Vo offers no explanation why this evidence was not 

available in June 1995 when the penalty phase began. Finally, the family 

background evidence summarized in Schiraldi’s declaration was presented at the 

penalty phase on Vo’s behalf. Vo fails to demonstrate that Schiraldi’s declaration 

contained anything new, much less that it could not have been presented at the 

penalty phase trial in the absence of a trial continuance. In sum, Vo fails to show 

the trial court abused its discretion in denying his continuance request. (People v. 

Beames, supra, 40 Cal.4th at p. 920.)

3. Denial of Trial Counsel’s Request to be Relieved

Based on its finding that Vo’s trial counsel had refused to comply with 

discovery requirements as to his proposed mental health expert, Dr. James Berg, 

the trial court excluded Berg’s testimony. Vo’s counsel then declared a conflict of 

interest and asked to withdraw from the case. The trial court rejected his request. 

On appeal, Vo contends the court erred by excluding Berg’s testimony as a 

discovery sanction. He also asserts the trial court erred when it denied his trial 

counsel’s motion to withdraw. Both arguments are meritless.

a. Background

Vo retained Dr. James Berg, a mental health expert, in March 1994. 

During Vo’s penalty phase case, both the prosecutor and Hajek’s attorney 

complained that Vo’s counsel had failed to disclose his intention to call Dr. Berg. 
111

The prosecutor asked that Berg be excluded as a sanction for the failure by Vo’s 

counsel to comply with discovery rules requiring timely disclosure of expert 

witnesses. The trial court declined to do so at that time, but added, “I may impose 

sanctions at the end if I believe that [Vo’s counsel] has . . . sandbagged, that it was 

a willful violation of the law of the state of California and not turning over reports 

or not turning over the investigation to [the prosecutor].” 

Somewhat later, the parties returned to the issue of Vo’s compliance with 

discovery rules with respect to Dr. Berg. Hajek’s counsel said, “I want to know if 

there’s a report from Dr. Berg. I would like that report given to me now and I 

would also like the opportunity to speak with Dr. Berg before any of this is 

presented.” Vo’s counsel represented to the trial court there were no reports from 

Berg, but offered to give his phone number to Hajek’s counsel and the prosecutor. 

The court noted that Hajek’s counsel had turned over the report of her mental 

health expert, Dr. Minagawa, and expressed its belief that it was being 

“sandbagged” by Vo’s counsel. Counsel denied the charge.

The following day, Hajek’s counsel informed the court that she had spoken 

to Dr. Berg and that he had turned over to her about 20 pages of handwritten notes 

indicating, among other things, that Berg had administered some psychological 

tests to Vo. Hajek’s counsel argued the test results were discoverable material and 

asked that they be provided. The prosecutor joined in the request. Vo’s counsel 

objected to turning over the material on the ground that Berg would not be 

referring to the test results in his testimony. The prosecutor argued this was “all 

the more reason for us to be allowed to examine it, because if an expert is picking 

and choosing what he chooses to rely on . . . that should be explained in crossexamination.” Hajek’s counsel agreed with the prosecutor that she had a right to 

discover the material for its possible impeachment value. The trial court 
112

instructed Vo’s counsel to turn over the material, or it would preclude Berg from 

testifying. Vo’s counsel refused to do so, claiming the material would be outside 

the scope of the testimony he intended to elicit from Berg. The trial court 

precluded Berg’s testimony. The court went on to say: “I’ll make a finding that 

[Vo’s counsel] has not complied with discovery in good faith.” Vo’s counsel 

responded by “declar[ing] a conflict of interest” and asking the court to appoint 

new counsel for Vo, “who has some respect of the court so he is not subjected to a 

disparate treatment because of what the court believes as to my handling of this 

matter.” The court denied the request. 

b. Exclusion of Dr. Berg’s testimony

Vo contends that the trial court’s exclusion of Dr. Berg’s testimony as a 

sanction for his counsel’s violation of the court’s discovery order violated his due 

process right to present a defense. He is wrong. Section 1054.3, subdivision 

(a)(1), requires the defense to disclose to the prosecution, among other matters, 

“[t]he names and addresses of persons, other than the defendant, he or she intends 

to call as witnesses at trial, together with any relevant written or recorded 

statements of those persons, including any reports or statements of experts made in 

connection with the case, and including the results of physical or mental 

examinations . . . which the defendant intends to offer in evidence at the trial.” 

This provision includes the raw results of standardized psychological and 

intelligence tests administered by a defense expert upon which the expert intends 

to rely. (Woods v. Superior Court (1994) 25 Cal.App.4th 178, 184-185.)

In this case, while representing that Dr. Berg had not prepared a report, 

Vo’s counsel neglected to mention that Berg had prepared 20 pages of handwritten 

notes and administered psychological tests to Vo. These materials constituted a 

report for purposes of the statute. (See People v. Lamb (2006) 136 Cal.App.4th 
113

575, 580 [defense expert’s notes were discoverable, notwithstanding defense’s 

claim that the expert had not prepared a written report based on those notes].) The 

court found that Vo’s failure to provide these notes and test results was a willful 

violation of its discovery order and justified the preclusion of Berg’s testimony as 

a sanction because of its adverse effect on the ability of the prosecutor and Hajek 

to cross-examine Berg. Vo does not demonstrate, nor do we find, an abuse of 

discretion. (People v. Ayala (2000) 23 Cal.4th 225, 299 [trial court may, in the 

exercise of its discretion, consider a broad range of sanctions for violation of a 

discovery order].) Finally, Vo fails to demonstrate that the application of the 

discovery statutes violated his right to present a defense. (Cf., Chambers v. 

Mississippi (1973) 410 U.S. 284, 302; People v. Boyette (2002) 29 Cal.4th 381, 

414 [“ ‘ “[A]s a general matter, the ordinary rules of evidence do not 

impermissibly infringe on the accused’s right to present a defense.” ’ ”] 

c. Denial of defense counsel’s motion to withdraw as counsel

Vo maintains that the trial court erroneously rejected his trial counsel’s 

request to withdraw from the case on the ground that a conflict of interest had 

emerged in the wake of the court’s preclusion of Dr. Berg’s testimony as a 

discovery sanction. We are not persuaded.

“The determination whether to grant or deny a motion by an attorney to 

withdraw is within the sound discretion of the trial court and will be reversed on 

appeal only on a clear showing of abuse of discretion.” (People v. Sanchez (1995) 

12 Cal.4th 1, 37.) “The right to effective assistance of counsel, secured by the 

Sixth Amendment to the federal Constitution, and article I, section 15 of the 

California Constitution, includes the right to representation that is free from 

conflicts of interest.” (People v. Cox (2003) 30 Cal.4th 916, 948.) “ ‘Conflicts of 

interests may arise in various factual settings. Broadly, they “embrace all 
114

situations in which an attorney’s loyalty to, or efforts on behalf of, a client are 

threatened by his responsibilities to another client or a third person or by his own 

interests.” ’ ” (People v. Doolin, supra, 45 Cal.4th at p. 459, italics omitted.)

Vo asserts the trial court’s “wrath” toward his trial counsel, reflected in its 

order precluding Dr. Berg’s testimony, caused Vo’s case to “suffer[]” and 

therefore constituted a conflict of interest. If, by this, he is suggesting the court 

precluded Berg’s testimony out of pique with Vo’s trial counsel, he is wrong. The 

exclusion of Berg’s testimony was an appropriate sanction for the discovery 

violation. Vo cites no authority to support the proposition that an adverse ruling, 

even one accompanied by a finding of defense counsel’s bad faith, creates a 

conflict of interest between counsel and his or her client. There being no 

identifiable conflict of interest between Vo and his trial counsel, there was no 

basis to grant counsel’s motion to withdraw from the case, and the trial court 

appropriately denied it.

4. Dr. Minagawa’s Testimony Regarding Hajek’s Denial of Being the 

Killer 

Vo claims the trial court erred in denying his motion for a mistrial after

Dr. Minagawa (Hajek’s mental health expert) was permitted to testify at the 

penalty phase that Hajek denied killing the victim. We have already discussed and 

disposed of this claimed violation of the Aranda/Bruton rule in connection with 

Vo’s severance argument. (See ante, pt. II.A.1.) Our stated reasons for rejecting 

his severance contentions apply with equal force to this claim. The trial court did 

not err in denying his mistrial motion.
115

5. Inadequate Notice of Factors in Aggravation

Vo, joined by Hajek, contends the prosecutor provided inadequate notice of 

the evidence in aggravation, as required by section 190.3, thus violating his 

statutory and due process rights. The claim is without merit.

Section 190.3 provides in part: “Except for evidence in proof of the offense 

or special circumstances which subject a defendant to the death penalty, no 

evidence may be presented by the prosecution in aggravation unless notice of the 

evidence to be introduced has been given to the defendant within a reasonable 

period of time as determined by the court, prior to trial. Evidence may be 

introduced without such notice in rebuttal to evidence introduced by the defendant 

in mitigation.” “The purpose of the notice requirement is to afford a capital 

defendant the opportunity to prepare to meet evidence introduced in aggravation 

of the offense.” (People v. Carrera (1989) 49 Cal.3d 291, 334.)

On February 6, 1995, eight days before the guilt phase trial began, the 

prosecution filed its notice of penalty phase evidence. The prosecution identified 

as its potential witnesses in aggravation all members of the Wang family, as well 

San Jose police officers, Department of Corrections officers, the medical 

examiner, and an FBI agent. Although a proof of service is not attached to the 

filing, subsequent record references to the notice and its contents by both 

defendants establish that they received the notice. On June 5, 1995, before the 

penalty phase began, the prosecutor filed a brief in which he sought to present 

additional evidence in aggravation, including evidence of Hajek’s criminal history. 

Both defendants filed motions to restrict the prosecution to the evidence in 

aggravation set forth in its earlier section 190.3 notice. The trial court agreed with 

defendants. It limited the prosecution evidence to victim impact testimony from 

Ellen, photographs of Su Hung while she was still alive, and Hajek’s conviction 
116

for auto theft with a firearm enhancement, but not the underlying facts of that 

offense. Ultimately, the only evidence the prosecution presented was victim 

impact testimony from Ellen; it otherwise relied on the circumstances of the crime. 

Vo contends the prosecutor’s February 1995 notice, which listed victim 

impact testimony by members of the Wang family, was untimely because it was 

not provided within a reasonable period of time before trial. But defendants did 

not object to that notice, either in February or later in June 1995 when they sought 

to restrict the evidence in aggravation to evidence contained in the February 

notice. Accordingly, Vo has forfeited any claim that the timing of the February 

notice left him with an insufficient opportunity to prepare for Ellen’s victim 

impact testimony. (See People v. McDowell (2012) 54 Cal.4th 395, 421.) In any 

event, Vo fails to demonstrate the unreasonableness of the notice’s timing, and the 

record contains no indication of any adverse effect on his defense. (See People v. 

Pinholster (1992) 1 Cal.4th 865, 958.) Accordingly, his claim is not only forfeited 

but meritless.

6. Failure to Provide Separate Penalty Phase Juries 

Vo contends the trial court erred by declining to impanel separate juries for 

the guilt and penalty phases, based on the objection by Vo’s counsel to the 

exclusion from the guilt phase of a prospective juror who stated he could not 

sentence a person to death. We reject Vo’s assertion that his objection to the 

exclusion of this juror constituted a motion to impanel separate juries and, 

therefore, we find he has forfeited the claim. In any event, the claim is meritless.

“Section 190.4, subdivision (c) ‘requires that, absent good cause, the same 

jury decide guilt and penalty at a capital trial.’ [Citation.] The statute expresses a 

long-standing preference for a single jury to decide guilt and penalty [citation], 

and we have rejected claims that this preference in itself constitutes a denial of due 
117

process of law or violates the defendant’s right to a fair trial and reliable guilt and 

penalty determination. [Citation.]” (People v. Prince (2007) 40 Cal.4th 1179, 

1281.) Vo fails to demonstrate that good cause existed for a second jury and, as 

Prince holds, the statutory preference for a single jury is constitutionally 

permissible.

7. Juror Excusal

Vo, joined by Hajek, contends the trial court abused its discretion when it 

excused one juror for hardship during the guilt phase and thereafter retained a 

second juror for the penalty phase despite her claim of hardship. We find no abuse 

of discretion.

a. Background

During the guilt phase trial, Juror C.E. informed the court that the grocery 

chain for which he worked had locked out its employees in a labor dispute, and he 

would no longer be paid for jury duty. C.E. had applied for work at nonunion 

companies, but none of them would hire him as long as he was serving on the jury. 

C.E. said he could not afford his house payments without a job. The court 

indicated it was inclined to excuse the juror. The prosecutor and Vo’s counsel 

both suggested the court wait for a few days to see if the labor dispute would be 

resolved. The court pointed out, however, that C.E. was probably competing for a 

nonunion job with everyone else who had been locked out, and it was possible that 

all the nonunion jobs would be filled. Rather than defer the decision, the court 

excused the juror and seated an alternate.

The jury returned its guilty verdicts on May 22, 1995, and the penalty phase 

was scheduled to begin on June 5, 1995. At a hearing to discuss scheduling, the 

trial court informed counsel it had received a note from Juror K.W. indicating she 

had a hardship that would affect her ability to continue serving on the jury. When 
118

asked to explain the nature of the hardship, K.W. said she was scheduled to attend 

a work-related event in Washington, D.C. that was a necessary step to promotion, 

beginning on June 5. She explained further that if she did not attend the event, she 

would be ineligible for promotion for another year. Initially, counsel for both 

defendants objected to excusing the juror, and the court declined to do so. A week 

later, however, defense counsel reversed course and asked that the juror be 

excused. Hajek’s counsel explained she feared K.W. might be angry if she were

not excused and might direct that anger at the defense. The trial court declined to

excuse the juror. It also rejected a request by Vo’s attorney to question the juror 

about whether its decision to retain her might affect her impartiality.

b. Discussion

“Section 1089 provides for the discharge of a juror ‘before or after the final 

submission of the case to the jury’ for ‘good cause’ shown. In reviewing a trial 

court’s decision either to retain or discharge a juror, we use the deferential ‘abuse 

of discretion’ standard. [Citations.] And we will uphold the decision unless it 

‘ “falls outside the bounds of reason.” ’ ” (People v. Earp (1999) 20 Cal.4th 826, 

892; see People v. Hart (1999) 20 Cal.4th 546, 596-597 [finding no abuse of 

discretion where court declined to excuse a juror for financial hardship].)

Applying this standard, we find no abuse of discretion in the trial court’s 

decision to discharge Juror C.E. The juror’s uncontradicted representations 

established that a labor dispute had resulted in a job lockout and his loss of income 

from his employer. C.E. tried but was unable to obtain employment elsewhere, 

and was told he would not be hired so long as he was on jury duty. Moreover, it 

was reasonable for the court to infer that retention of the juror might cause him to 

lose out on any chance of securing other employment because of the competition 
119

from his coworkers. Faced with these circumstances, the trial court’s decision to 

excuse C.E. for financial hardship was an appropriate exercise of its discretion. 

By contrast, Juror K.W.’s hardship did not concern a job or income loss. 

Instead, continued jury service meant she would not be eligible for a possible 

promotion for another year. Balanced against this hardship to K.W. would have 

been the loss of a juror who had already deliberated in the guilt phase. Under 

these circumstances, the trial court’s decision to retain K.W. was not an abuse of 

its discretion. (See Thiel v. Southern Pacific Co. (1946) 328 U.S. 217, 224 [“Jury 

service is a duty as well as a privilege of citizenship; it is a duty that cannot be 

shirked on a plea of inconvenience or decreased earning power. Only when the 

financial embarrassment is such as to impose a real burden and hardship does a 

valid excuse of this nature appear.”].) Nor is there any support in the record for 

Vo’s assertion that K.W.’s anger or disappointment at being retained on the jury 

— if, indeed, she was angry or disappointed — impaired her ability to be an 

impartial juror. 

8. Prosecutorial Misconduct 

Both defendants contend the prosecutor engaged in misconduct during the 

penalty phase. Vo focuses on the prosecutor’s closing argument. Hajek, while 

also asserting impropriety in the prosecutor’s argument, primarily addresses the 

prosecutor’s cross-examination of his expert witness, Dr. Minagawa, on the 

subject of sadism. We find no misconduct.

“The standards governing review of [prosecutorial] misconduct claims are 

settled. ‘A prosecutor who uses deceptive or reprehensible methods to persuade 

the jury commits misconduct, and such actions require reversal under the federal 

Constitution when they infect the trial with such “ ‘unfairness as to make the 

resulting conviction a denial of due process.’ ” [Citations.] Under state law, a 
120

prosecutor who uses such methods commits misconduct even when those actions 

do not result in a fundamentally unfair trial.’ ” (People v. Friend, supra, 47 

Cal.4th at p. 29.)

“ ‘As a general rule a defendant may not complain on appeal of 

prosecutorial misconduct unless in a timely fashion — and on the same ground —

the defendant made an assignment of misconduct and requested that the jury be 

admonished to disregard the impropriety.’ ” (People v. Valencia (2008) 43 

Cal.4th 268, 281.)

We turn first to Vo’s claims of improper prosecutorial argument. “ ‘[T]he 

prosecutor has a wide-ranging right to discuss the case in closing argument. He 

has the right to fully state his views as to what the evidence shows and to urge 

whatever conclusions he deems proper. Opposing counsel may not complain on 

appeal if the reasoning is faulty or the deductions are illogical because these are 

matters for the jury to determine.’ ” (People v. Valencia, supra, 43 Cal.4th at 

p. 284.) “When a claim of misconduct is based on the prosecutor’s comments 

before the jury, ‘ “the question is whether there is a reasonable likelihood that the 

jury construed or applied any of the complained-of remarks in an objectionable 

fashion.” ’ ” (People v. Friend, supra, 47 Cal.4th at p. 29.)

Vo contends the prosecutor committed misconduct in closing argument by: 

(1) improperly arguing nonstatutory factors in aggravation; (2) arguing that 

defendants were not entitled to mercy because they had shown none to the victim; 

(3) arguing that lack of remorse was a factor in aggravation; (4) arguing that Vo’s 

youth was a factor in aggravation because his youth would make him dangerous in 

prison; and (5) urging the jury to consider defendants jointly rather than giving 

them individualized consideration.
121

Vo’s trial counsel failed to object to a single remark he now assigns as 

misconduct by the prosecutor, thus forfeiting his claims of misconduct. Vo 

responds to the forfeiture argument with a pro forma assertion that any objection 

would have been futile and any request for admonition would have been 

inadequate to cure the harm. “A defendant claiming that one of these exceptions 

[to the forfeiture rule] applies must find support for his or her claim in the record. 

[Citation.] The ritual incantation that an exception applies is not enough.” 

(People v. Panah (2005) 35 Cal.4th 395, 462.) We find the claims forfeited. 

(People v. Valencia, supra, 43 Cal.4th at p. 281.) In any event, Vo’s claims are 

meritless.

Vo aggregates several of the challenged remarks in arguing the prosecutor 

inappropriately urged the jury to consider nonstatutory factors in aggravation. Vo 

then singles out these same remarks for stand-alone claims of prosecutorial 

misconduct. For the reasons below, whether considered singly or in the aggregate, 

the remarks were not improper.

Vo first contends the prosecutor impermissibly argued that lack of remorse 

was a factor in aggravation. (People v. Jurado (2006) 38 Cal.4th 72, 141.) But 

the prosecutor did not make this argument. Although he made the observation that 

Vo expressed no remorse on the audiotape of his jailhouse conversation with 

Hajek, he did so in order to impeach Vo’s testimony that he was sorry about the 

crime and had been shocked when he learned Su Hung had been killed. It is not 

misconduct to argue that “the evidence lacked the mitigating force the defendant 

claimed for it.” (People v. Raley (1992) 2 Cal.4th 870, 917 [where defendant 

claimed his confession showed remorse, “the prosecutor was entitled to point out 

that he had denied culpability until he found out that one of his victims had 

survived and ‘he’s not going anywhere’ ”].) 
122

Vo next claims the prosecutor impermissibly argued that Vo’s failure to 

show mercy to the victim should be considered as a factor in aggravation. Not so. 

Pursuant to section 190.3, factor (k), the jury may consider as a mitigating factor 

“[a]ny other circumstance which extenuates the gravity of the crime even though it 

is not a legal excuse for the crime.” It was in the context of discussing the 

applicability of this factor to defendants that the prosecutor argued that mercy 

should not be shown to them in any greater measure than they showed mercy to 

the victim. The argument was permissible. (See People v. Collins, supra, 49 

Cal.4th at p. 230 [“It is not improper to urge the jury to show the defendant the 

same level of mercy he showed the victim.”].)

Vo also contends the prosecutor improperly argued that Vo’s age was a 

factor in aggravation because his youth made him potentially more dangerous in 

prison. The prosecutor did no such thing. Rather, he argued that both defendants’ 

ages should not weigh in their favor, because they were both adults, because the 

crime was “monstrous,” and because, as Vo’s expert told the jury, “age makes 

them worse prisoners, more dangerous, less controllable in the prison situation.” 

In this regard, it is settled that “ ‘age’ as statutory sentencing factor includes ‘any 

age-related matter suggested by the evidence or by common experience or 

morality that might reasonably inform the choice of penalty. Accordingly, either 

counsel may argue any such age-related inference in every case.’ ” (People v. 

Williams (2013) 56 Cal.4th 165, 200.) Measured by this standard, the prosecutor’s 

argument in this case was permissible.

Vo further contends the prosecutor suggested that the jury should consider 

as factors in aggravation the evidence that his family “car[ed] for him” and that he 

led an “alleged ‘secret life.’ ” But the remarks to which Vo directs us were part of 

the prosecutor’s argument that Vo’s numerous character witnesses were ill-
123

informed as to Vo’s true character and that his witnesses had exaggerated any 

familial abuse in his upbringing. Such comments by the prosecutor on his view of 

the evidence were entirely permissible. (People v. Valencia, supra, 43 Cal.4th at 

p. 284.)

Vo also contends the prosecutor, while paying “lip service” to the principle 

of individual consideration of each defendant, “in actuality” urged the jury to 

consider them jointly. We disagree. The record reflects that Vo’s counsel 

objected when the prosecutor asked the jury rhetorically whether Hajek or Vo was 

worse. Agreeing such a comparison was improper, the prosecutor told the jury, “it 

is a mistake to ask you to compare defendants. That should not be done. Each 

defendant should be evaluated separately and individually.” Before going over the 

section 190.3 factors, he again reminded the jury that “each defendant should be 

looked at separately and evaluated individually.” The prosecutor then discussed 

the factors first as they applied to Vo, and then as they applied to Hajek. There 

was no misconduct on this ground.

Finally, Vo claims certain of the prosecutor’s remarks about Hajek were 

misconduct. We discuss them below in connection with Hajek’s claims of 

prosecutorial misconduct. As to Vo, suffice it to say there is no possibility that 

any perceived impropriety prejudiced him.

Hajek’s prosecutorial misconduct claim focuses on the prosecutor’s crossexamination of Hajek’s mental health expert, Dr. Minagawa, about whether Hajek 

was a sadist. Hajek complains that most of the prosecutor’s questions concerned 

his alleged sadistic tendencies, even though Minagawa “explained that ‘sadism’ is 

not recognized as a diagnosis in the DSM-IV.” (Hajek explains that the DSM-IV, 

the Diagnostic and Statistical Manual of Mental Disorders, fourth edition, “is a 
124

manual published by the American Psychiatric Association that includes all 

currently recognized mental health disorders.”) 

The misconduct claim is forfeited. Although several objections were made 

to this line of questioning, Hajek’s counsel lodged only three objections, all of 

which came very late in the prosecutor’s examination of Dr. Minagawa on this 

subject. Two of those objections were on relevance grounds. Only the third 

objection — “I object. There is no diagnosis for sadism in the DSM-IV, which the 

district attorney knows well” — could conceivably be characterized as an 

objection on grounds of prosecutorial misconduct. The trial court overruled the 

objection. Later, when Hajek specifically objected to questions about whether 

Hajek suffered from sexual sadism, the trial court sustained the objections. 

Hajek’s counsel, however, failed to request an admonition.

A claim of prosecutorial misconduct is not preserved unless the defendant 

makes a timely objection and requests an admonition, and even then the issue is 

preserved only if the admonition was insufficient to cure any harm. (People v. 

Gonzales (2012) 54 Cal.4th 1234, 1275.) Because Hajek failed to lodge a timely 

objection to most of the questions he now asserts were misconduct, and did not 

request admonitions when objections were sustained, we conclude his claim is 

forfeited. 

The claim also fails on its merits. The underlying premise of Hajek’s 

argument is that the only legitimate definition of sadism is the one that appears in 

the DSM-IV pertaining to sexual sadism, and therefore any other invocation of the 

concept of sadism is improper. We are not persuaded. While “sadism” may be 

narrowly defined for diagnostic purposes as a sexual aberration, it has a wider and 

more commonly understood meaning that includes a “delight in cruelty” and 

“excessive cruelty.” (Merriam-Webster’s Collegiate Dict. (10th ed. 2001), 
125

p. 1027.) It is in this sense that the word appears in the instruction defining the 

torture-murder special circumstance that the jury found true as to Hajek. (CALJIC 

No. 8.24 (5th ed. 1988, 1992 rev.) [“The perpetrator committed the murder with 

[an] . . . intent to inflict extreme and prolonged pain upon a living human being for 

the purpose of revenge, extortion, persuasion or for any sadistic purpose.”].)

An inclination toward excessive cruelty or taking delight in the infliction of 

pain is undoubtedly a mental abnormality. The prosecutor, therefore, was justified 

in asking Hajek’s mental health expert whether Hajek’s conduct demonstrated this 

kind of sadism. Moreover, Dr. Minagawa understood this was the sense in which 

he was being questioned about sadism; he repeatedly engaged with the prosecutor 

on this issue, even at one point agreeing, “I think there are sadistic parts of what he 

did, yes.” When the prosecutor suggested that Hajek’s stated desire to mutilate a 

family pet was a “sign[] of sadism,” Minagawa agreed it was a sign of “a sadistic 

trait.”

We need not belabor the point. Even had Hajek preserved this claim of 

prosecutorial misconduct — which he did not — the prosecutor’s examination of 

Dr. Minagawa regarding Hajek’s sadistic traits was not misconduct.

To the extent Hajek complains of the prosecutor’s questions to Dr. 

Minagawa about whether Hajek suffered from sexual sadism, those objections 

were sustained. By failing to request an admonition, however, Hajek’s counsel 

failed to preserve this issue for appellate review. In any event, these fleeting 

questions do not rise to prosecutorial misconduct.

Hajek contends the prosecutor’s closing argument references to sadism and 

Hajek’s interest in Satanism were misconduct. We cannot agree. In Hajek’s 

penalty phase case, his counsel argued the death penalty was not warranted 

because, due to his untreated mental disease, he did not form the requisite mental 
126

state for murder and attempted murder, and that medication could have controlled

his illness. The prosecutor responded that Hajek committed the crime not because 

he was mentally ill but because he enjoyed inflicting pain. To make his point, the 

prosecutor referenced Hajek’s sadistic characteristics and his interest in Satanism, 

both of which were matters in evidence. Moreover, “ ‘[u]nlike the guilt 

determination, where appeals to the jury’s passions are inappropriate, in making 

the penalty decision, the jury must make a moral assessment of all the relevant 

facts as they reflect on its decision.’ [Citations.]” (People v. Leonard (2007) 40 

Cal.4th 1370, 1418.) Here, as in Leonard, “the prosecutor’s comments were 

emotional, but not excessively so. They were based on the evidence and fell 

within the permissible bounds of argument.” (Ibid.)

Like Vo, Hajek also contends the prosecutor impermissibly argued 

postcrime lack of remorse as a factor in aggravation. The prosecutor, however, 

did not make that argument. Rather, he contended the jury should consider 

defendants’ lack of remorse in deciding whether they were entitled to sympathy or 

mercy as a mitigating factor, e.g. “[Hajek] is a person who shows absolutely no 

remorse. Deserves no mercy, no mitigation.” As such, the argument was proper. 

(People v. Jurado, supra, 38 Cal.4th at p. 141.) 

Finally, Hajek joins in Vo’s argument that the prosecutor committed 

misconduct by arguing Hajek had fabricated his mental illness and by referring to 

a letter Hajek wrote to Vo in which he described violent sexual fantasies involving 

Ellen. Vo, however, does little more than assert these grounds of misconduct 

without developing an argument. In any event, no misconduct appears. The 

prosecutor did not make the stated argument. Rather, he engaged in a long and 

detailed review of Hajek’s mitigation evidence in an attempt to show it 

misrepresented Hajek’s true nature and the extent of his culpability. It was in the 
127

context of challenging Hajek’s portrayal of himself as a victim of mental illness 

that the prosecutor referred briefly to letters by Hajek to Vo in which Hajek 

described wanting to rape and sodomize Ellen. The argument was not improper. 

(People v. Crew, supra, 31 Cal.4th at pp. 857-858 [prosecutor may argue “that the 

mitigating evidence presented by the defendant was not in fact mitigating, and . . . 

place[] such evidence in the broader factual context of the case”].)

In sum, we reject defendants’ claims of prosecutorial misconduct.

9. Instructional Error

a. Refusal to give pinpoint instructions 

Defendants contend the trial court erroneously refused to give their 

requested pinpoint instructions directing the jury to consider specific pieces of 

evidence in mitigation. Vo also claims additional instructional errors. 

Vo submitted a lengthy pinpoint instruction directing the jury to consider as 

mitigating factors six circumstances assertedly relevant to section 190.3, factor 

(k), which permits consideration of “[a]ny other circumstance which extenuates 

the gravity of the crime even though it is not a legal excuse for the crime.” 

(§ 190.3, factor (k).) Among those six named circumstances were “whether 

another defendant, or defendants, equally culpable, will not be punished by 

death”26 and “whether the defendant did not use force or violence in an effort to 

avoid arrest.” Additionally, Vo’s proposed instruction listed 24 “aspects of the 

defendant” for the jury to consider in mitigation, including “whether the defendant 

 

26 Directing the jury to another defendant’s non-death sentence as a factor in 

mitigation is incorrect as a matter of law. (People v. Moore (2011) 51 Cal.4th 

1104, 1141-1142 [trial court properly excluded evidence that another defendant 

had received life without the possibility of parole and an instruction that the 

defendant’s accomplice had received a more lenient sentence as mitigating 

factors].) 
128

has a low sense of self-esteem and self-worth,” “the defendant’s ability to 

engender feelings of love and respect for him by his family, friends, teachers, and 

correctional officers,” and “whether the defendant has a calming and guiding 

effect upon younger inmates.” The trial court declined to give the instruction.

Hajek’s pinpoint instruction similarly would have directed to jury to 

consider as factors in mitigation Hajek’s “history of disrupted foster and adoptive 

placements; the damage caused to him by numerous moves in foster and adoptive 

placements; emotional abuse inflicted upon him in foster and adoptive placements; 

his history and treatment of his mental illness with medication; his work history; 

his remorse for the effects of this crime on the victims; his stabilization, 

maturation and change since he has been incarcerated for this offense; his parents’ 

love for him.” The trial court declined to give this part of the proposed 

instruction.

The court, however, did agree to append to CALJIC No. 8.84, the 

introductory penalty phase instruction, the last paragraph of Hajek’s proposed 

instruction stating: “In this phase of the case, you may consider sympathy, pity, 

mercy or compassion in determining the appropriate penalty. These may be 

considered by you as factors in mitigation.” Although the court read this 

paragraph when it verbally instructed the jury, it neglected to append it to the 

written instruction.

Both defendants contend the court erred in refusing their instructions 

directing the jury to particular matters in mitigation. We disagree. “A trial court 

must instruct on the law applicable to the facts of the case. [Citations.] In 

addition, a defendant has a right to an instruction that pinpoints the theory of the 

defense. [Citation.] The court must, however, refuse an argumentative 

instruction, that is, an instruction ‘of such a character as to invite the jury to draw 
129

inferences favorable to one of the parties from specified items of evidence.’ ” 

(Mincey, supra, 2 Cal.4th at p. 437.) In People v. Catlin (2001) 26 Cal.4th 81, we 

rejected the defendant’s claim that the court had erroneously refused to give a 

similar instruction that sought to direct the jury’s attention to 13 specific factors in 

mitigation. We observed that the standard instruction “directing the jury that it 

may consider in mitigation ‘any other circumstance which extenuates the gravity 

of the crime even though it is not a legal excuse for the crime and any sympathetic 

or other aspect of the defendant’s character or record that the defendant offers as a 

basis for a sentence less than death, whether or not related to the offense for which 

he is on trial,’ adequately conveys the full range of mitigating evidence that may 

be considered by the jury.” (Id. at pp. 173-174.) We also found that special 

instructions that seek to direct the jury’s attention to specific factors in mitigation 

are properly “refused as argumentative and duplicative of standard instructions.” 

(Id. at p. 174.) The standard instruction that we found sufficient in Catlin was also 

given here. For the same reasons set forth in Catlin, we reject defendants’ claim 

of error.

As noted, the trial court agreed to append to CALJIC No. 8.84 the last 

paragraph of Hajek’s proposed instruction but, while it read the paragraph in its

verbal charge, it neglected to add it to the written instructions. Hajek contends he 

was thereby prejudiced because, where verbal and written instructions differ, the 

written instructions prevail over verbal ones. (People v. Osband (1996) 13 Cal.4th 

622, 717.) He reasons that without the written directive to the jury stating it could 

consider sympathy pity, mercy, or compassion as factors in mitigation, the jury 

would not have known it could do so. The argument fails, because the missing 

paragraph need not have been given at all. (See People v. Ledesma, supra, 39 

Cal.4th at p. 739.) Under CALJIC No. 8.84 as given, defendants were free to 
130

argue that the jury should exercise mercy and, indeed, Hajek’s counsel told the 

jury they were allowed “to consider sympathy, pity, mercy and compassion, if you 

feel they are appropriate.” There was no error, harmless or otherwise.

Vo raises other claims of instructional error, none of which has merit. He 

asserts the sympathy instruction that Hajek submitted and the court read failed to 

limit the jury’s consideration of sympathy to defendants as a factor in mitigation. 

But a penalty phase jury may, within the ambit of the circumstances of the crime 

factor in aggravation, “exercise sympathy for the defendant’s murder victims and 

for their bereaved family members.” (People v. Pollock (2004) 32 Cal.4th 1153, 

1195; accord, People v. Zamudio (2008) 43 Cal.4th 327, 368.) Thus, it would 

have been error for the court to have limited the jury’s consideration of sympathy 

to the defendants alone.

Vo next contends the instructions were inadequate to impress upon the jury 

the requirement of an individualized penalty determination as to each defendant. 

Specifically, he asserts the first sentence of CALJIC No. 8.85, which directs the 

jury to “consider all of the evidence which has been received during any part of 

this trial,” allowed the jury to improperly consider evidence admitted against only 

one defendant against both of them. Along these same lines, he complains the 

other crimes evidence instruction, while referring to Hajek alone, did not explicitly 

limit the jury’s consideration of that evidence to Hajek. 

The trial court was under no sua sponte duty to give an instruction as to the 

limited purpose for which evidence was received. (People v. Cowan, supra, 50 

Cal.4th at p. 479.) Vo’s failure to request such an instruction forfeits the claim of 

error on appeal.

In any event, there was no error. In assessing a claim of instructional error, 

we examine the instructions as a whole. The test we apply is whether there is a 
131

reasonable likelihood the jurors would have understood the instructions in a 

manner that violated a defendant’s rights. (People v. Pearson, supra, 56 Cal.4th at 

p. 476.) In this regard, we presume that jurors are intelligent individuals who are 

capable of understanding instructions and applying them to the facts of the case 

before them. (People v. Carey, supra, 41 Cal.4th at p. 130.) Here, the jury was 

explicitly instructed to separately decide the appropriate penalty for each of the 

defendants and, in doing so, to “consider each defendant separately and the factors 

in aggravation and mitigation as to each defendant separately.” Both defense 

counsel impressed upon the jury its responsibility to make individualized penalty 

determinations and to look at the evidence relevant to each defendant individually. 

The prosecutor also reminded the jury to decide each defendant’s fate separately 

and structured his argument accordingly. Given these circumstances, we reject 

Vo’s assertion that the instructions as given were inadequate.

b. Burden of proof instructions

Defendants contend the absence of certain instructions regarding the burden 

of proof and jury unanimity violated various constitutional guarantees. More 

broadly, defendants contend that the death penalty statute is unconstitutional 

because it fails to assign a burden of proof to the prosecution to prove beyond a 

reasonable doubt that aggravating factors outweigh mitigating factors before the 

death penalty may be imposed or that death is the appropriate penalty. Defendants 

also contend the statute and the instructions are unconstitutional because they fail 

to require the jury to agree unanimously on the factors in aggravation, because the 

instructions fail to assign a burden of persuasion to the prosecution, and because 

the jury is not required to return written findings regarding the aggravating factors. 

We have in the past rejected all of these claims. (E.g., People v. Gonzales, supra,

54 Cal.4th at p. 1298; Houston, supra, 54 Cal.4th at pp. 1231-1232; see People v. 
132

Lenart (2004) 32 Cal.4th 1107, 1135-1136 [court need not assign a burden of 

persuasion].) We do so again.

c. CALJIC Nos. 8.85 and 8.88 

Defendants raise certain challenges to CALJIC No. 8.85, which sets forth 

the statutory factors (§ 190.3) to be considered in determining the penalty, and to 

CALJIC No. 8.88, which guides the jury in how to determine the appropriate 

penalty.

Pursuant to CALJIC No. 8.85, the jury was instructed to consider “[t]he

circumstances of the crime of which the defendant was convicted in the present 

proceeding and the existence of any special circumstances found to be true . . . .” 

(§ 190.3, factor (a).) Contrary to defendants’ contentions, this factor is not so 

overly broad as to allow for the arbitrary and capricious imposition of the death 

penalty. (Mungia, supra, 44 Cal.4th at p. 1141; People v. Parson (2008) 44 

Cal.4th 332, 369, and cases cited.) The instruction is not defective because it fails

to omit inapplicable sentencing factors. (Parson, at p. 369, and cases cited.) Nor 

does the instruction’s use of such adjectives as “extreme” and “substantial” 

impermissibly impede the jurors’ consideration of mitigation. (People v. Pearson, 

supra, 56 Cal.4th at p. 478; Parson, at pp. 369-370, and cases cited.)

CALJIC No. 8.88, as given to the jury, provided: “To return a judgment of 

death, each of you must be persuaded that the aggravating circumstances are so 

substantial in comparison with the mitigating circumstances that it [sic] warrants 

death instead of life without parole.” Both defendants contend the instruction was 

defective because it failed to tell jurors that mitigating factors could only be 

considered for that purpose. Hajek also argues the phrase “so substantial” in 

describing the jury’s weighing of the aggravating and mitigating factors was too 

vague and ambiguous to guide the jury in carrying out its task. Hajek additionally 
133

complains that CALJIC No. 8.88 failed to inform jurors that they were to 

determine that death was the appropriate, and not simply the authorized, 

punishment, and that they were required to return a sentence of life without 

possibility of parole if the factors in mitigation outweighed those in aggravation. 

Finally, Hajek argues the instruction should have informed the jurors that Hajek 

did not have to persuade them the death penalty was inappropriate. Our prior 

decisions have considered and rejected all of these challenges to the instruction 

(e.g., People v. McKinzie (2012) 54 Cal.4th 1302, 1361-1362, and cases cited), 

and we do so again here.

10. Denial of New Trial Motion 

“Because a ruling on a motion for a new trial rests so completely within the 

trial court’s discretion, we will not disturb it on appeal absent ‘ “ ‘a manifest and

unmistakable abuse of discretion.’ ” ’ ” (People v. Earp, supra, 20 Cal.4th at 

p. 890.) We now address the trial court’s denial of defendants’ motion for a new 

trial.

In the proceedings below, Vo advanced nine grounds for a new trial, the 

denial of which he now assigns as error on appeal. We have already considered 

and rejected his claims of error on seven of these grounds, including: 

(1) insufficiency of the evidence to support the torture-murder special 

circumstance (ante, pt. II.B.1.b.); (2) admission of letters written by Hajek (ante, 

pts. II.B.3.c., II.B.3.g.iv.); (3) denial of severance motions (ante, pt. II.A.1.); (4) 

admission of Moriarty’s conversation with Hajek against Vo (ante, pt. II.B.3.a.); 

(5) admission of the audiotaped jailhouse conversation between Hajek and Vo 

(ante, pt. II.B.3.b.); (6) the trial court’s excusal of Juror C.E. and its refusal to 

excuse Juror K.W. (ante, pt. II.C.7.); and (7) denial of Vo’s continuance requests 

(ante, pt. II.C.2.). For the same reasons we rejected his claims of error, we 
134

conclude the trial court did not abuse its discretion in denying his new trial motion 

on those grounds. (People v. Panah, supra, 35 Cal.4th at p. 490.)

Vo also argued a new trial was required because insufficient evidence 

supported the lying-in-wait special circumstance, a claim he also raises in these 

proceedings. While we agree the evidence does not support this special 

circumstance, we conclude a new trial is not necessary on this ground for the same 

reason that reversal of the judgment is not required. (See ante, pt. II.B.1.a.)

Finally, Vo argued a new trial was required because of issues related to 

funding. He separately raises this claim on appeal as grounds for reversal, and we 

will address it below. Our conclusion that the funding issues Vo cites do not 

require reversal of the judgment (see post, pt. II.D.1.) also leads us to conclude the 

trial court did not abuse its discretion in denying Vo’s new trial motion on this 

ground.

The one remaining ground upon which both defendants moved for a new 

trial involves the admission of the audiotape of their jailhouse conversation. In 

support of this particular claim, Vo’s trial counsel submitted a declaration stating 

Juror R.E. had informed him some jurors claimed to have heard Vo admit on the 

audiotape that he and Hajek had killed the victim. Vo’s Keenan counsel also filed 

a declaration stating that a number of jurors had told her that in listening to the 

audiotape during their penalty phase deliberations, they heard Vo say, “[W]e 

killed her.” Based on these reported juror statements, Hajek also moved for a new 

trial, arguing the jury had considered improperly admitted evidence. Attached to 

Hajek’s motion was a declaration from a defense paralegal who interviewed three 

of the jurors. The jurors told the paralegal they heard each defendant admit 

several times, “We killed her.”
135

At the hearing on the new trial motions, counsel for both defendants argued 

the admissions the jurors said they had heard on the tape were not actually on the 

tape. Vo complained the jurors placed substantial weight on the nonexistent 

admissions, and Hajek argued this underscored the unreliability of the tape and 

why it should have been excluded in the first place. Hajek made it clear, however, 

that he was not asserting juror misconduct.

Two jurors, Juror K.M. and Juror L.F., testified at the new trial hearing. 

Both agreed the jurors had not heard Vo say “we killed her” when they listened to 

the tape during guilt phase deliberations on a tape player that provided poor audio 

quality. It was only when they listened to the tape on a different tape player 

during the penalty phase that they heard the admission. Juror K.M. testified she 

and her fellow jurors listened to the section of the tape where they heard the 

admission “numerous times,” sometimes using earphones. Juror L.F. testified, 

“[w]e did not accept anything [on the tape] we could not all hear and were 

comfortable with saying.” Following their testimony, Vo again argued — based 

on counsel’s having listened to the tape — that the words attributed to Vo were 

not on the tape. Hajek reiterated that the tape recording overall was unreliable. 

Counsel then asked the court to listen to the tape itself before ruling on the new 

trial motion. Ultimately, the court denied the motion, apparently without listening 

to the tape.

Vo, joined by Hajek, contends on appeal that the trial court abused its 

discretion by not granting a new trial based on the jury’s inappropriate 

consideration of Vo’s admissions, which Vo continues to insist are not on the tape. 

Vo likens the jury’s consideration of this evidence to juror misconduct in the form 

of receipt of extraneous information. As Hajek did below, Vo contends the jurors’ 

statements about what they heard underscores the unreliability of the tape and 
136

shows why it should not have been admitted in the first instance. Finally, he 

contends the trial court erred in failing to review the tape so it could make its own 

finding as to whether admissions were contained on the tape.

“We first determine whether there was any juror misconduct. Only if we 

answer that question affirmatively do we consider whether the conduct was 

prejudicial. [Citation.] In determining misconduct, ‘[w]e accept the trial court’s 

credibility determinations and findings on questions of historical fact if supported 

by substantial evidence.’ ” (People v. Collins, supra, 49 Cal.4th at p. 242.)

We reject Vo’s attempted analogy to cases in which the jury based its 

verdict on out-of-court information. (See, e.g., People v. Nesler (1997) 16 Cal.4th 

561, 582-588 [juror’s receipt of out-of-court information biased the juror and 

required reversal of sanity phase verdict].) Significantly, the tape in this case had 

been admitted into evidence, and the jury was entitled to consider it during its 

penalty phase deliberations. In listening to the tape, the jury did not create 

evidence that was not already before it; it simply took evidence that was before it 

and, as the testifying jurors described, carefully and repeatedly examined it. Vo’s 

insistence that the jurors heard words he did not speak would require us to 

disregard the trial court’s findings, which were supported by substantial evidence. 

No evidence contradicted the account the testifying jurors gave regarding the

process by which they examined the tape, and their testimony was essentially 

consistent. Thus, Vo offers no basis for rejecting the trial court’s implied findings 

that the jurors heard the statements they attributed to Vo on the tape. On this 

record, no juror misconduct appears.27

 

27 Moreover, a court may not consider evidence of a juror’s subjective process 

in deciding whether to grant a new trial based on purported juror misconduct. 

(Evid. Code, § 1150; People v. Allen and Johnson (2011) 53 Cal.4th 60, 75.) 

Thus, to the extent Vo raises questions about the impact of the audiotaped 
137

Given that the trial court heard and credited the two jurors’ testimony on 

this point, it was unnecessary for the court to undertake its own examination of the 

audiotape by listening to it.

On a related point, Vo contends he was denied notice of this evidence and 

was therefore deprived of an opportunity to defend against it. Because the tape 

was in evidence and Vo had a copy of it, his notice argument fails.

In sum, defendants have not demonstrated a manifest and unmistakable 

abuse of discretion in the denial of their new trial motions. (People v. Earp, 

supra, 20 Cal.4th at p. 890.) Their claims are rejected.

11. Eligibility for the Death Penalty 

As discussed, Hajek introduced expert testimony that he suffered from 

mental illness (cyclothymic disorder, bipolar disorder) before and during 

commission of his crimes, as well as a borderline personality disorder with 

antisocial traits, which together impaired his judgment and prevented him from 

forming the mental state required for the charged crimes. Citing Atkins v. Virginia 

(2002) 536 U.S. 304 (Atkins), Hajek contends severely mentally ill offenders such 

as himself are ineligible for the death penalty. We are not persuaded.

In Atkins, supra, 536 U.S. 304, the United States Supreme Court held the 

execution of the mentally retarded violates the Eighth Amendment’s proscription 

against cruel and unusual punishment. (Atkins, at p. 321.) While acknowledging 

that mentally retarded individuals “frequently know the difference between right 

and wrong and are competent to stand trial,” the high court concluded their 

personal culpability is diminished because, by definition, they have “diminished 

capacities to understand and process information, to communicate, to abstract 

 

statements on the jury’s verdict, he violates the proscription against invading the 

mental processes by which the jurors reached their verdict.
138

from mistakes and learn from experience, to engage in logical reasoning, to 

control impulses, and to understand the reactions of others.” (Id. at p. 318, fn. 

omitted.) In light of such impairments and reduced culpability, the Supreme Court 

found it appropriate to categorically exempt mentally retarded offenders from the 

death penalty because the social justifications for the punishment — retribution 

and deterrence — would not be served. (Id. at pp. 319-321.) The court 

additionally observed that mentally retarded defendants in the aggregate face an 

enhanced risk of execution in spite of factors which may call for a less severe 

penalty, not only due to the possibility of false confessions but also because of 

their lesser ability to make a persuasive showing of mitigation, to meaningfully 

assist counsel, to be effective witnesses on their own behalf, and to convey their 

remorseful demeanor. (Id. at pp. 320-321.)

Because Hajek never claimed to be mentally retarded and offered no 

evidence of mental retardation at trial, he has not demonstrated ineligibility for the 

death penalty under Atkins. Hajek, however, asserts that executing severely 

mentally ill offenders violates the federal and state prohibitions against cruel and 

unusual punishment because some of the underlying rationales of Atkins also 

apply to such offenders.

Hajek identifies no controlling federal authority barring imposition of the 

death penalty on mentally ill offenders. As for California law, we have held the 

analysis in Atkins inapplicable in a similar situation. In People v. Castaneda, 

supra, 51 Cal.4th 1292, we found the defendant failed to establish that his 

condition, “an antisocial personality disorder,” “is analogous to mental retardation 

for purposes of imposition of the death penalty.” (Id. at p. 1345.) First, in contrast 

to the circumstance that numerous states have acted to prohibit execution of 

mentally retarded offenders, “there is no objective evidence that society views as 
139

inappropriate the execution of death-eligible individuals who have an antisocial 

personality disorder.” (Ibid.) Second, unlike the mentally retarded, offenders with 

such a disorder “are aware of what they are doing” and “have the ability to choose 

not to commit crimes,” so “their disorder does not diminish their personality 

culpability.” (Ibid.) Third, “the justifications for the death penalty — retribution 

and deterrence — may be served by application of the law to such individuals.” 

(Ibid.) Finally, the ability of offenders with an antisocial personality disorder “to

charm and manipulate others, to deny responsibility, and to provide excuses for 

their conduct, enhances rather than diminishes their capacity to avoid wrongful 

conviction and execution.” (Ibid.)

Our analysis rejecting the defendant’s claim in Castaneda applies with 

similar force to Hajek’s claim. Most significantly, the circumstance that an 

individual committed murder while suffering from a serious mental illness that 

impaired his judgment, rationality, and impulse control does not necessarily mean 

he is not morally responsible for the killing. There are a number of different 

conditions recognized as mental illnesses, and the degree and manner of 

impairment in a particular individual is often the subject of expert dispute. Thus, 

while it may be that mentally ill offenders who are utterly unable to control their 

behavior lack the extreme culpability associated with capital punishment, there is 

likely little consensus on which individuals fall within that category or precisely 

where the line of impairment should be drawn. Thus, we are not prepared to say 

that executing a mentally ill murderer would not serve societal goals of retribution 

and deterrence. We leave it to the Legislature, if it chooses, to determine exactly 

the type and level of mental impairment that must be shown to warrant a 

categorical exemption from the death penalty.
140

There is no dispute that evidence concerning an individual capital 

defendant’s mental illness may be relevant in the guilt phase to the mental state 

issues (§§ 28, 29) and in the penalty phase to the issue of mitigation (§ 190.3, 

factors (d), (h)). Hajek, however, has not established the propriety of extending 

the categorical prohibition against executing mentally retarded offenders to the 

broader category of mentally ill defendants, nor that imposition of the death 

penalty is inappropriate in his particular case.

12. Constitutional Challenges to the Death Penalty Statute 

In addition to those constitutional challenges to the death penalty statute 

already addressed in connection with defendants’ claims of instructional error 

above, defendants also contend the statute is unconstitutional because it fails to 

require intercase proportionality review. We have previously considered and 

rejected this claim and see no reason to reconsider that holding. (People v.

Parson, supra, 44 Cal.4th at pp. 368-369, and cases cited.)

Defendants contend they are denied equal protection of the law because 

some protections extended to noncapital defendants are not extended to capital 

defendants. As we have recognized, however, “ ‘[t]he availability of certain 

procedural protections in noncapital sentencing — such as a burden of proof, 

written findings, jury unanimity and disparate sentence review — when those 

same protections are unavailable in capital sentencing, does not signify that 

California’s death penalty statute violates Fourteenth Amendment equal protection 

principles.’ ” (People v. Pearson, supra, 56 Cal.4th at p. 478.)

Moreover, “the asserted flaws in our death penalty statute, whether 

considered individually or together, do not render it unconstitutional.” (People v. 

Pearson, supra, 56 Cal.4th at p. 479.)
141

13. International Law

Defendants contend the imposition of the death penalty violates 

international law. Not so. “California’s death penalty law does not violate 

international law. We reach this conclusion taking into consideration 

defendant[s’] assertions that the International Covenant on Civil and Political 

Rights binds state courts and that international legal norms are among the evolving 

standards of decency used to define the scope of the Eighth Amendment to the 

federal Constitution.” (People v. Duenas (2012) 55 Cal.4th 1, 28; see Streeter,

supra, 54 Cal.4th at p. 268 [no authority prohibits a death sentence rendered in 

accordance with the requirements of state and federal constitutional and statutory 

law].)

Vo contends that international law also prohibits his execution because it 

would contravene international prohibitions against racial discrimination. Unable 

to show he was the victim of racial discrimination in this prosecution, he relies 

instead on statistical studies that purport to show racial discrimination against 

African-Americans in the application of the death penalty. The relevance of such 

studies as to Vo, who is not African-American, is questionable but, in any event, 

as he concedes, the United States Supreme Court has rejected the use of such 

statistical evidence to show racial discrimination in capital cases. (McCleskey v. 

Kemp (1987) 481 U.S. 279, 312-313.)

14. Cumulative Prejudice

Defendants contend the cumulative effect of prejudice from errors at both 

the guilt and penalty phase requires reversal. We disagree. “No reasonable 

possibility exists that the jury would have reached a different result absent any of 

the acknowledged or asserted errors under the applicable federal or state standard 

of review. [Citations.]” (Houston, supra, 54 Cal.4th at p. 1233.)
142

D. Miscellaneous Claims

1. Funding Issues 

Vo contends that delays in payment to defense counsel and defense experts 

and the denial of his request for funds to reinterview penalty phase witnesses 

violated his constitutional rights to effective assistance of counsel, to due process, 

to present a defense and to a reliable capital trial. His claims are without merit.

a. Delays in payment to defense counsel

Vo was represented by two attorneys. James Blackman, his lead attorney, 

was appointed pursuant to section 987.2, subdivision (a)(3), which authorizes the 

appointment of private counsel where “because of a conflict of interest or other 

reasons, the public defender has properly refused.” Jeane Dekelver was appointed 

cocounsel pursuant to Keenan v. Superior Court, supra, 31 Cal.3d 424, after Vo’s 

original Keenan counsel withdrew. At an in camera hearing on April 26, 1995, 

Blackman complained that certain funding requests for ancillary services had been 

cut and that Dekelver had not been paid. The following day, Blackman reported 

the ancillary funding requests had been restored, but that payment to Dekelver 

remained an issue. A further in camera hearing was conducted on May 10, 1995, 

in which the conflicts administrator — evidently the person who processed billing 

and submitted it for payment — told the court she had instructed her staff to 

review and to deliver Blackman’s and Dekelver’s claims for payment. The 

conflicts administrator alluded to funding issues created by an unrelated case 

referred to as the Nuestra Familia case that had siphoned off funding from the 

conflicts budget. She assured the court that funds would be available to pay 

counsels’ claims.

At a subsequent in camera hearing on May 16, 1995, Blackman reported 

that he had not been paid for a month, that Dekelver had not been paid for two 
143

months, and that two defense experts had still not been paid. The conflicts 

administrator, who was again present, explained that she understood there was no 

money in the conflicts account. She reported, however, that the county had sent a 

fax indicating some money would be available before May 23, when the Santa 

Clara County Board of Supervisors would address the conflicts budget, which had 

been exhausted because of the Nuestra Familia case. She explained that the board 

was not refusing to fund conflicts, as Blackman had represented, but had deferred 

a decision. At her suggestion, the court ordered her to convey to the county that 

payment was required so the case could proceed to the penalty phase trial. 

Although further proceedings were held regarding defense requests for ancillary 

services, defense counsel made no further claims regarding nonpayment for 

services.

From this record, it appears that counsel were not paid for their services for 

a period of one month in Blackman’s case and two months in Dekelver’s case, due 

to funding shortfalls in the county’s conflicts budget. While the delay in payment 

was undoubtedly stressful for trial counsel, Vo fails to show it resulted in a denial 

of counsel or in counsel’s rendering constitutionally ineffective assistance.

Vo appears to suggest the delay in payment created a conflict of interest, 

but he fails to identify any particular conflict. Vo’s reliance on People v. Ortiz 

(1990) 51 Cal.3d 975 is misplaced because, unlike the situation there, the trial 

court here did not force defendant to go to trial with unpaid counsel against both 

his wishes and those of his attorneys. (See id. at pp. 984-988.) Indeed, the trial 

court worked with defense counsel to press the conflicts administrator to secure 

funding to pay counsel so the trial could proceed uninterrupted. On this record, 

Vo fails to demonstrate that the temporary delay in payment affected counsel’s 
144

performance or divided their loyalties, or that it otherwise impaired his 

constitutional rights.

b. Denial of full funding for ancillary services

Vo also argues the superior court’s reduction of his request for funds for 

investigative services violated his rights to counsel, to present a defense, to due 

process, and to a reliable capital trial.

On June 7, 1995, Vo’s counsel appeared before the court to seek additional 

funds (§ 987.9, subd. (a)) and requested $6,000 in further payments to his mental 

health expert, Dr. Berg, and $10,000 to the CJCJ, which had been conducting 

penalty phase witness interviews. The trial court asked Vo’s counsel to state how

many hours Berg would require for the specific tasks for which Vo sought 

payment. Then, after multiplying that number by Berg’s hourly rate, the court 

authorized $2,624. With respect to the CJCJ request, the court ascertained that 

most of the funds sought would be used to reinterview witnesses whom CJCJ had 

already interviewed. Accordingly, it authorized $812.50 to permit CJCJ to 

interview previously uninterviewed witnesses and to allow an expert witness, 

Vincent Schiraldi, to prepare his testimony and to testify. After Vo’s counsel 

explained that the interviews for which he sought the $10,000 had already been 

done, the court stated its role was to pass upon requests for work that was 

contemplated, not work that had been done: “What you’re talking about really is 

submitting to conflicts an after-the-fact request for monies for work performed; 

that doesn’t come before me, that goes to conflicts. You’re before me for monies 

for work to be done.”

“An indigent defendant has a statutory and constitutional right to ancillary 

services reasonably necessary to prepare a defense. [Citations.] The defendant 

has the burden of demonstrating the need for the requested services. [Citation.] 
145

The trial court should view a motion for assistance with considerable liberality, 

but it should also order the requested services only upon a showing they are 

reasonably necessary. [Citation.] On appeal, a trial court’s order for ancillary 

services is reviewed for abuse of discretion. [Citations.]” (People v. Guerra 

(2006) 37 Cal.4th 1067, 1085; § 987.9, subd. (a).)

Vo complains of delays in paying some of his experts but, as with his claim 

regarding delays in payments for counsel, he fails to demonstrate that delay alone 

rises to a problem of constitutional magnitude. His chief complaint involves the 

reduction of his requests for funds to reinterview witnesses for the penalty 

phase.28 Vo argues the court’s denial of his request for that funding reflected an 

unreasonable view of the scope of mitigating evidence. We disagree.

When the trial court asked Vo’s counsel to justify his request to 

“reinterview every witness,” counsel replied, “[b]ecause it’s a death penalty case.” 

The court responded, “No, no . . . . That buzzword doesn’t do it with public 

money. Whether it’s a death penalty case or whether it’s a murder case or whether 

it’s a rape case, you have to make an appropriate showing for the expenditure of 

 

28 Vo advances two other arguments that need not detain us. First, he asserts 

that Santa Clara County’s practice of channeling funding for ancillary services 

through the conflicts administrator rather than the superior court violated section 

987.9. But, as the statute requires, Vo’s request for ancillary funds was presented 

to, and passed upon by, a judge. The fact that actual payment of the funds may 

have been administered by the conflicts administrator would not appear to be, as 

Vo claims, an improper delegation of the statutory responsibility to someone other 

than a judicial officer. Vo also complains that the judge who ruled on his request 

— Judge Hastings — improperly denied a motion to disqualify himself from 

hearing Vo’s request for ancillary services. Vo cannot challenge the court’s ruling 

on the disqualification motion on appeal. (People v. Panah, supra, 35 Cal.4th at 

pp. 444-445 [ruling on a disqualification motion is not an appealable order but can 

only be reviewed by a writ of mandate from the appropriate Court of Appeal 

within 10 days of notice to the parties of the decision].) 
146

public money . . . . You don’t use the buzzword ‘capital case’ and get a blank 

check.” The trial court was correct. “The defendant has the burden of 

demonstrating the need for the requested service.” (People v. Gonzales and Soliz 

(2011) 52 Cal.4th 254, 286.) Defense counsel failed to demonstrate the necessity 

of reinterviewing witnesses to whom his investigators had already spoken. Under 

these circumstances, the court did not abuse its discretion in reducing his funding 

request.29 There being no abuse of discretion, we necessarily reject Vo’s 

constitutional claims as well.

2. Compliance with Section 190.9

Defendants contend reversal is required because the trial court’s failure to 

comply with section 190.9 — which requires that “all proceedings” in a capital 

case “be conducted on the record with a reporter present” — has resulted in an 

inadequate record on appeal. They point to numerous off-the-record conferences 

during the preliminary hearing and at both the guilt and penalty phases of their 

trial. This statutory violation, they claim, is also an error of constitutional 

magnitude that implicates their rights to due process, effective assistance of 

counsel, and heightened reliability in a capital case.

We recently summarized the governing principles thusly: “ ‘All 

proceedings in a capital case must, under section 190.9, be conducted on the 

record with a reporter present and transcriptions prepared. [Citation.] “ ‘[N]o 

presumption of prejudice arises from the absence of materials from the appellate 

 

29 To the extent Vo’s complaint is that the court erred by denying his request 

for funds to pay for work that he had had CJCJ do, evidently without prior 

authorization, he fails to demonstrate that the court’s position — that it was 

responsible only for the authorization of payment for future investigations and not 

payment for past investigations — was wrong. Moreover, we fail to see what 

prejudice Vo suffered if the work was already done and the issue was simply a 

matter of payment.
147

record [citation], and defendant bears the burden of demonstrating that the record 

is inadequate to permit meaningful appellate review [citation].’ ” [Citations.]’ 

[Citation.] ‘The record on appeal is inadequate . . . only if the complained-of 

deficiency is prejudicial to the defendant’s ability to prosecute his appeal. 

[Citation.] It is the defendant’s burden to show prejudice of this sort. [Citation.]’ 

[Citation.] ‘Moreover, irregularities in the preliminary hearing are no basis for 

reversal on appeal unless defendant can demonstrate a resulting unfairness in the 

subsequent trial. [Citations.]’ [Citation.]” (People v. Tully (2012) 54 Cal.4th 952, 

1070, fn. omitted.) Hence, a showing of prejudice requires more than merely 

listing the occasions on which there was an off-the-record discussion, and it is 

insufficient to simply “link each missing transcript to various arguments without 

explaining why the missing transcript had any impact . . . on [the defendant’s] 

ability to raise the issue or on our ability to review it.” (Id. at p. 1075.)

Here, defendants do little more than list missing transcripts without making 

the required showing. Hajek concedes he cannot “demonstrate specifically the 

prejudice he suffered” resulting from any noncompliance with section 190.9, but 

he asks this court to “take into account the resulting numerous gaps in the trial 

record when it assesses the cumulative effect of all the errors that occurred at his 

trial.”30 He also urges us to reexamine our earlier decisions recognizing that the 

defendant has the burden of showing prejudice and to instead hold that statutory 

noncompliance is reversible per se or, alternatively, presumptively prejudicial. 

Vo, who also fails to demonstrate prejudice, joins in this argument.

 

30 Hajek dwells on the trial court’s failure to have required the court reporter 

to transcribe the audiotape of defendants’ jailhouse conversation when it was 

played for the guilt phase jury. But both counsel for the defense stipulated that the 

tape need not be transcribed. The claim is thus forfeited. (Houston, supra, 54 

Cal.4th at p. 1213.)
148

We have previously rejected the invitation to declare a trial court’s failure 

to comply with section 190.9 either reversible per se or presumptively prejudicial. 

(People v. Taylor (2010) 48 Cal.4th 574, 660 [rejecting reversible per se standard]; 

People v. Wilson (2005) 39 Cal.4th 309, 325 [no presumption of prejudice arises 

from absence of materials from the appellate record]; People v. Cummings, supra, 

4 Cal.4th at p. 1333, fn. 70 [“Failure to report bench or chambers conferences 

between counsel and the trial judge is not a ‘structural defect affecting the 

framework within the trial proceedings,’ ” nor, on appeal, is prejudice presumed].)

We have likewise rejected the argument that section 190.9 creates a 

constitutionally protected liberty interest in a court reporter’s presence at every 

exchange between the court and counsel, as well as arguments that statutory 

noncompliance automatically violates the Fourteenth or the Eighth Amendments 

or impairs a defendant’s Sixth Amendment right to effective assistance of counsel. 

(People v. Taylor, supra, 48 Cal.4th at p. 660; People v. Pinholster, supra, 

1 Cal.4th at p. 922.)

The federal due process clause requires only that the state furnish the 

defendant with a record sufficient to permit adequate and effective review. 

(People v. Taylor, supra, 48 Cal.4th at p. 660.) These principles apply even 

where, as here, the participants’ lack of recall precluded a settled statement with 

respect to the omitted conferences. (People v. Cummings, supra, 4 Cal.4th at 

p. 1333, fn. 70.)

We have found the record sufficient to permit review of all issues raised 

(People v. Tully, supra, 54 Cal.4th at p. 1075), and defendants have not sustained 

their burden of demonstrating otherwise. We therefore conclude the trial court’s 

failure to comply with section 190.9 was harmless.
149

III. DISPOSITION

The lying-in-wait special-circumstance findings are reversed as to both 

defendants. All Penal Code former section 12022.5 enhancements found true as to 

defendant Hajek are struck and replaced with enhancements under Penal Code 

former section 12022, subdivision (b) (now § 12022, subd. (b)(1)). The superior 

court is directed to amend the abstract of judgment to reflect this modification and 

to forward the amended abstract of judgment to the Department of Corrections and 

Rehabilitation. The judgments are otherwise affirmed.

BAXTER, J.

WE CONCUR:

CANTIL-SAKAUYE, C.J.

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

LIU, J.
1

CONCURRING AND DISSENTING OPINION BY KENNARD, J.

I concur in the majority opinion except in one respect: As to defendant Loi 

Tan Vo, the evidence is, in my view, insufficient to support the jury’s torture 

findings. I would therefore reverse, as to Vo, the jury’s true finding on the torturemurder special-circumstance allegation (Pen. Code, § 190.2, subd. (a)(18)) and set 

aside the judgment of death as to Vo. I further conclude that there is insufficient 

evidence to convict Vo of first degree murder on a torture-murder theory, although 

I agree with the majority that Vo’s first degree murder conviction can be upheld 

on the theory of deliberate and premeditated murder.

I.

Codefendants Hajek and Vo, who were both 18 years old, devised a scheme 

to go to the home of 16-year-old Ellen Wang (with whom Hajek had been 

arguing), to kill Ellen’s family while she watched, and then to kill Ellen. Hajek 

announced his intention in advance to an acquaintance. On January 18, 1991, 

Hajek and Vo arrived at the Wang residence about 10:00 a.m. They had gloves 

and a pellet gun. Inside the home were Ellen’s 10-year-old sister, Alice, and her 

73-year-old grandmother, Su Hung.

Hajek and Vo used a ruse to enter the Wang home. Once inside, Hajek 

pointed the pellet gun at Alice, and Vo tied Su Hung’s hands behind her back and 

took her upstairs. Hajek guarded Alice as she watched television downstairs. At 

one point, Hajek took Alice to an upstairs bathroom and left her there. Vo later 
2

took Alice back downstairs, and Hajek followed after about 10 minutes. 

Eventually, Alice’s mother, Cary, arrived. Vo took a knife from the kitchen and 

hid in a downstairs bathroom. When Cary entered the house, Vo emerged from 

hiding and threatened Cary with the knife. He told her that if she screamed, he 

would kill the family. Cary cooperated, and Vo later returned the knife to the 

kitchen.

Defendant Vo then took Cary to Ellen’s school in an effort to find Ellen. 

Cary persuaded Vo to stop at Cary’s office, where Cary managed to tell someone 

to call the police. While Cary was out with Vo, Ellen’s father, Tony, came home 

and found defendant Hajek downstairs with young Alice. Alice told her father that 

Hajek had a gun. When Cary and Vo returned, Vo and Hajek detained the entire 

group. During that time, each defendant went upstairs, separately, many times. 

On two occasions (once before Tony arrived, and once after), Hajek took Alice 

upstairs to see her grandmother. The first time this occurred, however, Hajek went 

upstairs alone before taking Alice upstairs. Alice could not get a clear look at her 

grandmother on either occasion, but she thought her grandmother was reading a 

newspaper or sleeping.

When police officers arrived, they arrested both Hajek and Vo. Su Hung’s 

dead body was found in an upstairs bedroom, her hands tied behind her back and 

her mouth gagged. She had been strangled with a cord, and there was a threequarter-inch-deep and three-and-a-half-inch-long slash across her throat. An 

autopsy revealed burst blood vessels in her face, indicating that she was strangled 

slowly before her throat was slashed. The jugular vein on the right side of her 

neck was partly severed. The doctor who performed the autopsy concluded, from 

the large amount of blood, that Su Hung was alive when her jugular vein was 

severed. Su Hung also had a one-inch-deep and one-inch-long stab wound on her 

shoulder and five superficial cuts on her chest. The stab wound on her shoulder 
3

was inflicted before death, and the superficial cuts could have been inflicted 

before death. The autopsy doctor could not determine whether the strangulation 

had rendered Su Hung unconscious before infliction of the cuts, the stab wound, 

and the throat slash.

Blood found on a glove used by defendant Hajek was consistent with Su 

Hung’s blood. There was also blood on Hajek’s jacket, although the source could 

not be determined. There was no blood on Vo or on any of his clothing. A knife 

found in a puddle of water in the kitchen sink tested positive for blood, but the 

tests could not rule out an animal source.

II.

“ ‘In reviewing a challenge to the sufficiency of the evidence, we do not 

determine the facts ourselves. Rather, we “examine the whole record in the light 

most favorable to the judgment to determine whether it discloses substantial 

evidence — evidence that is reasonable, credible and of solid value — such that a 

reasonable trier of fact could find the defendant guilty beyond a reasonable 

doubt.” [Citations.] We presume in support of the judgment the existence of 

every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] 

The same standard of review applies to cases in which the prosecution relies 

primarily on circumstantial evidence and to special circumstance allegations. 

[Citation.] “[I]f the circumstances reasonably justify the jury’s findings, the 

judgment may not be reversed simply because the circumstances might also 

reasonably be reconciled with a contrary finding.” [Citation.] We do not reweigh 

evidence or reevaluate a witness’s credibility.’ [Citation.]” (People v. Houston

(2012) 54 Cal.4th 1186, 1215.)

“To prove torture murder, the prosecution must establish ‘ “a willful, 

deliberate, and premeditated intent to cause extreme pain or suffering for the 

purpose of revenge, extortion, persuasion, or another sadistic purpose.” ’ 
4

[Citation.] To prove a torture-murder special circumstance, the prosecution must 

show that defendant intended to kill and had a torturous intent, i.e., an intent to 

cause extreme pain or suffering for the purpose of revenge, extortion, persuasion, 

or another sadistic purpose. [Citation.] The jury may infer the intent to inflict 

extreme pain from the circumstances of the crime, the nature of the killing, and the 

condition of the victim’s body. [Citation.]” (People v. Streeter (2012) 54 Cal.4th 

205, 237 (Streeter).) In addition, “the trier of fact may find intent to torture based 

on all the circumstances surrounding the charged crime, including the nature and 

severity of the victim’s wounds and any statements by the defendant revealing his 

state of mind during the crime.” (People v. Bemore (2000) 22 Cal.4th 809, 841.)

III.

As discussed above, to prove torture murder or the torture-murder special 

circumstance, the prosecution must establish “intent to cause extreme pain or 

suffering.” (Streeter, supra, 54 Cal.4th at p. 237.) Here, there is no evidence of 

such intent other than the nature of Su Hung’s injuries. At trial, the evidence 

describing those injuries was sufficient to allow the jury to reasonably infer that 

whoever had inflicted the injuries intended to cause extreme pain, and therefore 

the jury’s torture findings can be upheld only as to that person (or those persons). 

The evidence, however, is weak as to the identity of that person (or those persons). 

Defendants Hajek and Vo could have inflicted the wounds together, while Su 

Hung’s 10-year-old granddaughter Alice was in the upstairs bathroom, or one 

defendant could have inflicted the wounds alone, while the other was watching 

Alice, or the wounds could have been inflicted at different points in time, some by 

Vo and others by Hajek.

That defendant Hajek went upstairs before bringing Alice upstairs to see Su 

Hung could support the inference that Hajek knew Su Hung was injured and he 

wanted to make it appear to Alice as if Su Hung were fine. The same evidence, 
5

however, also suggests that Su Hung’s throat had not, at that point, been slashed, 

as crime scene photos show that the partial severing of Su Hung’s jugular vein 

produced a tremendous amount of blood that Hajek could not easily have 

concealed from Alice. Alice’s testimony that her grandmother appeared to be 

reading the newspaper or sleeping also supports the conclusion that Su Hung’s 

throat had not been cut when Alice saw her, for Alice surely would not have 

described her grandmother in such innocuous terms if she had seen large amounts 

of blood. Although Alice’s statement that her grandmother was sleeping is 

consistent with the possibility that Su Hung was unconscious and, therefore, had 

already been strangled, that possibility tells us nothing about who strangled her.

The jury also could have reasonably inferred that the knife found in a 

puddle of water in the kitchen sink was the weapon used to slash Su Hung’s throat 

and to inflict the wounds on her shoulder and torso. The water in the sink 

suggested that the sink had been recently used, from which a juror could infer that 

the knife had been washed. Defendants Hajek and Vo had no reason to wash the

knife unless it was bloody from having been used in wounding someone. But 

even if the knife in the sink was the weapon used against Su Hung, the jury was 

not presented with evidence from which it could reasonably determine whether 

Hajek or Vo was the one who put it there. As mentioned on page 2, ante, Vo did 

use a knife from the kitchen to threaten Cary, but he returned that knife to the 

kitchen, and because he did not wound Cary when he threatened her, he did not 

need to wash it. Thus, the knife in the sink may not have been the knife that Vo 

used to threaten Cary. Moreover, once Vo had placed back in the kitchen the 

knife he used to threaten Cary, there was no reason to assume (as the majority 

does (maj. opn., ante, at p. 51)) that Vo, rather than Hajek, wielded the knife 

against Su Hung. At best, one could conclude that Vo knew where in the kitchen 

to find a knife and that he was inclined to use it as a weapon. But certainly Hajek, 
6

too, could have retrieved a knife from the kitchen if that was what he wanted to 

do. In addition, the fact that Vo was inclined to use a knife as a weapon does not 

imply that Hajek was not inclined to do so. In short, the fact that Vo wielded a 

knife against Cary cannot support a reasonable inference that it was Vo who 

wielded a knife against Su Hung.

The majority relies on the fact that a second pair of gloves (not the gloves 

defendant Hajek was wearing) was found on the table in the kitchen. The majority 

reasons that defendant Vo might have gone into the kitchen, removed his gloves, 

obtained a knife, used it to kill Su Hung, and then washed his hands and the knife. 

(Maj. opn., ante, at pp. 51-52.) Vo might indeed have done all that, but the 

evidence of a pair of gloves lying on the kitchen table does not tend to establish

that Vo did all that. Nor can we infer much from Vo being the one who tied Su 

Hung’s hands behind her back and took her upstairs. Although that evidence 

indicates that Vo aided and abetted Su Hung’s murder, no reasonable juror could 

infer from that evidence that Vo personally inflicted Su Hung’s wounds and 

therefore was guilty of torturing her.

The strongest evidence of who inflicted the wounds on Su Hung (and thus 

tortured her) was the blood on defendant Hajek’s glove that matched Su Hung’s 

blood. As noted earlier, the doctor who performed the autopsy concluded that Su 

Hung was alive when her jugular vein was severed. He based that conclusion on 

the large amount of blood that had poured from her neck, as shown in the crime 

scene photos. In my view, it would be very hard to partially sever the jugular vein 

of a living person, thus releasing a large amount of blood, and not get any of that 

blood on one’s hand or glove. Defendant Vo had no blood on his hands or on his 

clothing. That Hajek’s glove was stained by Su Hung’s blood is a reasonably 

strong indication that Hajek, not Vo, was the one who slashed Su Hung’s throat. 

Of course, there could be other interpretations of the evidence, but the evidence 
7

presented at trial was sufficient to allow the jury to infer that it was Hajek who 

wielded the knife against Su Hung and that, based on her wounds, Hajek had the 

requisite torturous intent. It is possible, of course, that defendant Vo first 

strangled Su Hung, after which Hajek wielded the knife (perhaps in a separate 

incident). But lacking is evidence from which that sequence of events can 

reasonably be inferred. As this court has observed, a jury’s finding of guilt cannot 

be based on a mere possibility. (People v. Reyes (1974) 12 Cal.3d 486, 500 

(Reyes); People v. Kunkin (1973) 9 Cal.3d 245, 250 (Kunkin); People v. Redmond

(1969) 71 Cal.2d 745, 755 (Redmond); Estate of Stanford (1957) 49 Cal.2d 120, 

164; see People v. Ramon (2009) 175 Cal.App.4th 843, 851 (Ramon); Kidron v. 

Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581.)

The majority here nevertheless concludes that “there was substantial 

evidence showing that Vo shared Hajek’s torturous intent” (maj. opn., ante, at 

p. 52) and that “the totality of the circumstances of the crime amply demonstrated 

an intent to torture . . . as to both defendants” (ibid.). As to Vo, the majority’s 

reasoning makes four points, which I discuss below.

First, the majority observes that the prosecution’s case included “substantial 

evidence that Vo had his own independent motive to seek revenge on Ellen,” 

because he had romantic feelings for Ellen’s friend, with whom Ellen had 

quarreled. (Maj. opn., ante, at p. 50.) But such a motive hardly supports an 

inference that Vo intended to inflict extreme pain on murder victim Su Hung, who 

was Ellen’s grandmother. Thus, the evidence the majority cites does not establish 

torturous intent on Vo’s part.

Second, the majority notes that Vo knew about Hajek’s altercation with 

Ellen Wang and that Hajek made no secret of his intent to kill Ellen and her 

family. This leads the majority to conclude that a reasonable juror could infer that 

Vo knew Hajek’s murderous intent when Vo accompanied Hajek to the Wang 
8

family’s home. (Maj. opn., ante, at p. 50.) I agree. But the fact that Vo knew of 

Hajek’s murderous intent does not establish that Vo intended to inflict extreme 

pain on Ellen’s grandmother. Again, the evidence the majority cites fails to 

establish torturous intent on Vo’s part.

Third, the majority asserts that Vo actively participated in carrying out 

Hajek’s plan to kill Ellen and her family: Among other things, Vo tied up Su 

Hung (Ellen’s grandmother), threatened Cary (Ellen’s mother) with a knife, and 

then took Cary to Ellen’s school to get Ellen. (Maj. opn., ante, at p. 51.) Again, 

the majority misses the point. With respect to the jury’s torture findings, the 

critical issue is not whether Vo was an accomplice to Su Hung’s murder; rather, 

the critical issue is whether Vo intended to inflict extreme pain on Su Hung. The 

majority has not pointed to any evidence from which a reasonable juror could infer 

that Vo had the latter intent. Even if Vo’s active participation in carrying out 

Hajek’s murderous plan could give rise to a suspicion that Vo personally inflicted 

Su Hung’s injuries, Su Hung’s blood on Hajek’s glove tends to exonerate Vo by 

implicating Hajek. Moreover, “evidence that ‘merely raises a strong suspicion of 

the defendant’s guilt is not sufficient to support a conviction[;] [s]uspicion is not 

evidence . . . .’ ” (People v. Watkins (2012) 55 Cal.4th 999, 1024, quoting 

Redmond, supra, 71 Cal.2d at p. 755.)

Finally, the majority notes that “the evidence is consistent with a conclusion 

that Vo actively participated in the torture of Su Hung.” (Maj. opn., ante, at p. 51, 

italics added.) The majority reasons that, because nothing “foreclose[d] a 

conclusion that Vo tortured . . . the victim” (ibid.), the jury could reasonably find 

that he did so (even though the evidence of blood on Hajek’s glove tended to 

implicate Hajek rather than Vo, who had no blood on his clothing or on himself). 

In essence, the majority concludes that Vo can be found guilty of torture because 

he presented no evidence clearly exonerating him of torture. It is true that this 
9

court must defer to a jury’s verdict when reviewing that verdict for sufficiency of 

the evidence. But that deference does not mean allowing a jury to infer facts from 

a mere possibility. As has been observed, “a mere possibility is nothing more than 

speculation[, and] [s]peculation is not substantial evidence.” (Ramon, supra, 175 

Cal.App.4th at p. 851; see Reyes, supra, 12 Cal.3d at p. 500; Kunkin, supra, 9 

Cal.3d at p. 250; Redmond, supra, 71 Cal.2d at p. 755.)

IV.

My conclusions are these:

With respect to defendant Hajek, I agree with the majority that the evidence 

sufficiently supports the jury’s finding that he intended murder victim Su Hung to 

experience extreme pain or suffering, because there is substantial evidence that 

Hajek inflicted wounds that caused such pain and suffering. Therefore, like the 

majority, I would affirm the judgment of death as to defendant Hajek.

But with respect to defendant Vo, the evidence is, in my view, insufficient 

to support the jury’s finding that he shared Hajek’s intent to cause extreme pain 

and suffering. Therefore, unlike the majority, I would reverse, as to Vo, the 

torture-murder special-circumstance finding, and hence the judgment of death. 

Like the majority, however, I would uphold Vo’s first degree murder conviction 

on the theory of deliberate and premeditated murder. (See maj. opn., ante, at 

pp. 52-53.)

KENNARD, J.

 

 Retired Associate Justice of the Supreme Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California Constitution.
1

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Hajek and Vo

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S049626

Date Filed: May 5, 2014

__________________________________________________________________________________

Court: Superior

County: Santa Clara

Judge: Daniel E. Creed

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Alison Pease, 

Deputy State Public Defender, for Defendant and Appellant Stephen Edward Hajek

Doron Weinberg and Kathryn K. Andrews, under appointments by the Supreme Court; Law Offices of 

Doron Weinberg and Marilyn A. Waller for Defendant and Appellant Loi Tan Vo.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant 

Attorney General, Gerald A. Engler, Assistant Attorney General, Nanette Winaker and Moona Nandi, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

Counsel who argued in Supreme Court (not intended for publication with opinion):

Alison Pease

Deputy State Public Defender

770 L Street, Suite 1100

Sacramento, CA 95814-3518

(916) 322-2676

Kathryn K. Andrews

3020 El Cerrito Plaza

El Cerrito, CA 94530

(510) 527-9543

Moona Nandi

Deputy Attorney General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-3664

(415) 703-5962