Filed 3/7/23 P. v. Khemphomma CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

THONGLINH KHEMPHOMMA,

Defendant and Appellant.

 D079149

 (Super. Ct. No. INF1700929)

APPEAL from a judgment of the Superior Court of Riverside County, 

Anthony R. Villalobos, Judge. Reversed and remanded with directions.

Ronda G. Norris, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters and Charles C. 

Ragland, Assistant Attorneys General, Robin Urbanski, Paige B. Hazard and 

Juliet W. Park, Deputy Attorneys General for Plaintiff and Respondent. 

The People charged Thonglinh Khemphomma with second degree 

murder (Pen. Code,1 § 187, subd. (a); count 1), gross vehicular manslaughter 

1 Undesignated statutory references are to the Penal Code.
2

(§ 191.5, subd. (a); count 2), driving under the influence of alcohol and 

causing death and bodily injury (Veh. Code, § 23153, subd. (a); count 3), and 

felony driving with a 0.08 percent or more blood alcohol content causing 

injury (Veh. Code, § 23153, subd. (b); count 4). The People alleged as to 

counts 3 and 4 that Khemphomma personally inflicted great bodily injury 

upon the victim, who was not an accomplice. (§§ 12022.7, subd. (a), 1192.7, 

subd. (c)(8).) 

Following the People’s case-in-chief, the court granted the prosecutor’s 

motion to dismiss the gross vehicular manslaughter count. The jury 

convicted Khemphomma on the remaining counts and found all 

enhancements true. The court sentenced Khemphomma to 15 years to life in 

state prison on count 1, and imposed but stayed the sentence on the other 

counts and enhancements under section 654. 

Khemphomma contends: (1) insufficient evidence showed he acted with 

implied malice to support his second degree murder conviction; (2) the court 

prejudicially granted the prosecution’s motion to dismiss the gross vehicular 

manslaughter count; and (3) he is entitled to resentencing under Senate Bill 

No. 567, and Assembly Bill Nos. 124, and 518; moreover, the abstract of 

judgment should be corrected to accurately reflect his convictions. We 

conclude the court erroneously dismissed count 2, and therefore reverse the 

judgment and remand with directions.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2017, Khemphomma drove under the influence of alcohol from 

Arizona to California with his mother, Sim Khemphomma, as his passenger.

He crashed his car into the freeway’s center median, killing his mother. The

parties stipulated her cause of death was multiple blunt impact injuries from 

the collision, with no other significant conditions noted.
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A police officer investigating the collision testified “that the vehicle 

inappropriately and unsafely turned to the left causing it to leave the 

roadway. And then as the driver attempted to regain control of the vehicle, 

the vehicle was trying to turn back to the right to get back to the lane of 

traffic and lost control and—which led to the vehicle rolling over.” He 

believed the vehicle overturned at least twice. He did not see any evidence to 

support a mechanical failure as the cause of the accident. Three of the tires 

appeared deflated, but apparently they did not deflate before the collision.

Khemphomma failed several field sobriety tests administered while he 

was at the hospital following the incident. Approximately two hours after the 

crash, a preliminary alcohol screening test showed his blood-alcohol 

concentration was 0.226 percent.

Khemphomma had four prior convictions for driving under the 

influence, and his license had been revoked twice before. As part of a 2013 

case, he was ordered to attend Mothers Against Drunk Driving classes, and 

he acknowledged on a plea form that he “drove and operated a motor vehicle 

within the state of Minnesota while under the influence of alcohol. I agree 

that alcohol significantly causes impairment in my driving ability.”

Defense counsel presented no trial evidence.

DISCUSSION

I. Sufficiency of the Evidence of Second Degree Murder

Khemphomma contends there was insufficient evidence of implied 

malice to sustain his second degree murder conviction.

In reviewing the sufficiency of the evidence under the substantial 

evidence standard, an appellate court does not “ ‘ “ask itself whether it 

believes that the evidence at the trial established guilt beyond a reasonable 

doubt.” [Citation.] Instead, the relevant question is whether, after viewing 
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the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a 

reasonable doubt.’ ” (People v. Boatman (2013) 221 Cal.App.4th 1253, 1262, 

italics omitted.)

“In determining whether evidence is sufficient to support a verdict, we 

examine the entire record, viewing the evidence in the light most favorable to 

the judgment and presuming in support of the verdict the existence of every 

fact the jury could reasonably deduce from the evidence. The issue is 

whether the record so viewed discloses evidence that is reasonable, credible 

and of solid value such that a rational trier of fact could find the elements of 

the crime beyond a reasonable doubt.” (People v. Llamas (1997) 51 

Cal.App.4th 1729, 1736.) “ ‘A reviewing court neither reweighs evidence nor 

reevaluates a witness’s credibility.’ ” (People v. Covarrubias (2016) 1 Cal.5th 

838, 890.)

Murder is the unlawful killing of a human being . . . with malice 

aforethought. (§ 187, subd. (a).) Malice may be express or implied. (§ 188, 

subd. (a).) Implied malice has “ ‘both a physical and a mental component. 

The physical component is satisfied by the performance of “an act, the 

natural consequences of which are dangerous to life.” [Citation.] The mental 

component is the requirement that the defendant “knows that his conduct 

endangers the life of another and . . . acts with a conscious disregard for 

life.” ’ ” (People v. Chun (2009) 45 Cal.4th 1172, 1181; accord, People v.

Watson (1981) 30 Cal.3d 290, 300.) The mental component of implied malice 

is subjective, requiring that the defendant actually appreciate the risk of his 

or her actions. (People v. Murphy (2022) 80 Cal.App.5th 713, 726; People v. 

Superior Court (Costa) (2010) 183 Cal.App.4th 690, 697.)
5

People v. Watson is the leading case on vehicular murder on a theory of 

implied malice. The defendant there consumed large quantities of beer at a 

bar. Afterwards, he drove through a red light and barely avoided a collision 

with another car in an intersection. He drove away at high speed and 

collided with another vehicle, killing two of its occupants. (People v. Watson,

supra, 30 Cal.3d at p. 293.) The trial court dismissed the murder counts, and 

the California Supreme Court reversed the order. (Id. at pp. 294–295.) It 

explained there was a rational ground to conclude the defendant’s conduct 

constituted second degree murder: he had consumed enough alcohol to be 

legally intoxicated; he drove to the bar and must have known he would have 

to drive later; it could be presumed he knew of the hazards of driving while 

intoxicated; he drove at “highly excessive speeds through city streets, an act 

presenting a great risk of harm or death”; he only narrowly avoided a 

collision with another vehicle by skidding to a stop, then resumed his 

excessive speed; and he tried to brake his car before the fatal collision, 

suggesting he knew of the great risk of harm he had created. (Id. at pp. 300-

301.) These facts would “reasonably and readily” support a conclusion the 

defendant acted with a conscious disregard for human life. (Id. at p. 301.)

Since People v. Watson, supra, 30 Cal.3d 290, several cases have upheld 

convictions for murder based on drunk driving, relying on some or all of these 

factors: blood-alcohol level above the legal limit; a pre-drinking intent to

drive; knowledge of the hazards of driving while intoxicated; and highly 

dangerous driving. (People v. Murphy, supra, 80 Cal.App.5th at p. 727;

People v. Autry (1995) 37 Cal.App.4th 351, 358.) These factors need not all be 

present. (People v. Wolfe (2018) 20 Cal.App.5th 673, 682-683.)

For instance, in People v. Olivas (1985) 172 Cal.App.3d 984, 989, 

sufficient evidence showed implied malice, as the defendant had consumed 
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enough drugs to impair his faculties, drove at extremely high speeds on city 

streets for a relatively lengthy period of time, and continued doing so after 

the dangers were shown by one collision, two near misses, and a police chase, 

although there was no indication he took the drug knowing he would later 

drive.

In People v. McCarnes (1986) 179 Cal.App.3d 525, 533, the defendant 

drove at high speeds with a high blood alcohol level, executing two extremely 

reckless passing maneuvers and embarking on a third in the face of an 

oncoming vehicle. The appellate court said that the evidence, coupled with 

four prior convictions for driving under the influence, was “overwhelming[ ],” 

and any suggestion it did not support a finding of implied malice was 

“nonsense, if not an affront to this court.” (Ibid.)

The evidence here similarly supports a finding Khemphomma was 

subjectively aware of the potentially deadly consequences of his driving. 

After the collision, his blood alcohol level was near three times the legal limit. 

As shown in his police interview, he intended to and did drink alcohol before 

and during the drive from Phoenix to California. He was aware of the 

dangers of drunk driving from his prior DUI convictions. Finally, the 

investigating police officer testified Khemphomma was driving in a 

dangerous manner. 

Khemphomma states: “Should this court find sufficient evidence of 

implied malice, [he] exhausts his remedies in order to request the California 

Supreme Court grant review to re-examine its decision in People v. Watson, 

supra, 30 Cal.3d 290.” However, he acknowledges that we are bound by that 

decision under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 

455.
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II. Dismissal of Gross Vehicular Manslaughter Count

Khemphomma contends: “The court failed to recognize it had 

discretion to deny the prosecutor’s last minute request to dismiss Count 2, 

gross vehicular manslaughter, thereby abusing its discretion under section 

1385.” He specifies that “the dismissal eliminated [his] defense and the jury’s 

ability to convict him of a less serious offense but still hold him accountable 

for a death. The court’s decision took away [his] ability to present a complete 

defense as planned, i.e., that he was guilty of gross vehicular manslaughter

but not murder.” He contends the dismissal deprived him of his federal 

constitutional rights to due process, to present a complete defense, and to 

have the jury instructed on his defense.

The People concede the trial court erroneously believed it lacked 

discretion to deny the prosecutor’s request to dismiss the count. 

Nevertheless, they contend any error was harmless because Khemphomma 

would not have received a better result if he had been tried on both counts 1 

and 2. The People add that count 2’s dismissal did not deprive 

Khemphomma of a constitutional right to present a complete defense to the 

other charged offenses. They also argue gross vehicular manslaughter is not 

a lesser included offense of murder; at most it is a lesser related offense and

therefore Khemphomma had no constitutional right to compel the court to 

give a lesser related offense instruction. 

A. Background 

At the end of the People’s case-in-chief, the prosecutor moved to dismiss 

the gross voluntary manslaughter count, without citing any statutory basis, 

and without any explanation besides it was “within the People’s province” to 

do so. Defense counsel argued in opposition that his strategy revolved 

around that count, and it was “prejudicial to the defense to allow the People 
8

to dismiss this count after all of the cross-examination of the People’s 

witness[es] is done, and moments before the defense is about to put on the 

case.”

The court stated, “I don’t see how I can prevent the [People] from 

[dismissing the count].” It pointed out that the witnesses were subject to 

recall. Defense counsel objected: “Even though they are subject to recall, 

that doesn’t change all of the questions that I’ve already asked that are 

already part of the record that wouldn’t have been the same if count 2 weren’t 

around. But now I’m stuck with all of that evidence, and strategically that 

leaves me at a severe disadvantage.” Defense counsel added, “I wouldn’t 

have delved into certain areas, I would have delved into other areas, etc.” 

Defense counsel continued, “This case involves the death of somebody. The 

only counts that involve the death of somebody are the life count of murder in 

count 1 and the vehicular manslaughter . . . [maximum term of ten years on 

count 2].” [¶] . . . And to remove count 2 as an option for the jury, they are 

then put in the position despite there being a death, they have to find 

[Khemphomma] guilty of murder, or not guilty of everything. And I think 

that severely prejudices the defense this late in the game, especially to no 

longer have that landing spot of count 2.” Defense counsel also stated that 

Khemphomma’s previous counsel had expressed Khemphomma’s willingness 

to plead guilty to count 2 and serve more than the maximum term of ten 

years in prison. 

The court took a recess to conduct research. It stated afterwards: “I 

really couldn’t find anything that would prevent me from dismissing [count 2]

at the [People’s request]. They do have the burden.” The court expressed 

sympathy for defense counsel’s argument: “[I]nitially when you hear 

[defense’s argument], you say, [‘]well it’s to their benefit to have a dismissal[’] 
9

but then I can see what [defense counsel is saying] about the issues we delve 

into and so forth. And then now [defense counsel needs] to prepare [his] 

client for testifying tomorrow.”

Defense counsel replied, “Yes, your honor. He was already prepared 

with a different game plan in mind. . . . I’d like to have that time not just for 

my client to help prepare him, but I was about to give an opening statement. 

There’s all sorts of strategy choices that are going to need to be recalculated 

now.”

The court continued the trial until the next day. At that time, defense 

counsel moved for a mistrial, arguing the court had violated Khemphomma’s 

constitutional rights by dismissing the count: “There have been no changes 

in the case over the last four years. The defense feels it’s improper to wait 

until after the People have rested to suddenly move the goalpost. [¶] There 

are a myriad of decisions and questions that relied on the charges in this case 

being the same charges that they have been for four years, and certainly 

what they were at the start of this trial.” The court denied the motion on the 

ground that “the People do have the option to dismiss [counts].” 

B. Applicable Law

Section 1385 provides: “The judge or magistrate may, either on motion 

of the court or upon the application of the prosecuting attorney, and in 

furtherance of justice, order an action to be dismissed. The reasons for the 

dismissal shall be stated orally on the record. The court shall also set forth 

the reasons in an order entered upon the minutes if requested by either party 

or in any case in which the proceedings are not being recorded electronically 

or reported by a court reporter.” (§ 1385, subd. (a).)2 

2 Since the court’s ruling, section 1385, subdivision (c)(2) was amended to 

require the trial court, in exercising its discretion, to “consider and afford 
10

Under sections 1385 and 1386, courts have the “sole authority . . . to 

dismiss actions in furtherance of justice.” (People v. Bonnetta (2009) 46 

Cal.4th 143, 148-149; People v. Tenorio (1970) 3 Cal.3d 89, 92-93.) We review 

the court’s ruling under section 1385 for abuse of discretion. (People v. 

Superior Court (Romero) (1996) 13 Cal.4th 497, 530.) As the California 

Supreme Court explained: “ ‘ “[T]he language of [section 1385], ‘in 

furtherance of justice,’ requires consideration both of the constitutional rights 

of the defendant, and the interests of society represented by the People, in 

determining whether there should be a dismissal. [Citations.]” [Citations.] 

At the very least, the reason for dismissal must be “that which would 

motivate a reasonable judge.” [Citations.]’ [Citation.] ‘Courts have 

recognized that society, represented by the People, has a legitimate interest 

in “the fair prosecution of crimes properly alleged.” (Romero, at pp. 530-531.) 

“But ‘the interests of society represented by the People’ do not begin or end 

with the mechanical prosecution of charges properly alleged. ‘The public 

prosecutor “ ‘is the representative not of any ordinary party to a controversy, 

great weight to evidence offered by the defendant to prove that [certain 

specified mitigating circumstances] are present.” The enumerated mitigating 

circumstances are: (A) the enhancement would result in a discriminatory 

racial impact; (B) multiple enhancements are alleged in a single case; (C) the 

application of an enhancement could result in a sentence of over 20 years; (D) 

the current offense is connected to mental illness; (E) the current offense is 

connected to prior victimization or childhood trauma; (F) the current offense 

is not a violent felony; (G) the defendant was a juvenile when they committed 

the current offense or any prior offenses that trigger the enhancement or 

enhancements applied in the current case; (H) the enhancement is based on a 

prior conviction that is over five years old; and (I) though a firearm was used 

in the current offense, it was inoperable or unloaded. (§ 1385, subd. (c)(2).)

This provision applies here: “ ‘If the judgment is not yet final because it is on 

appeal, the appellate court has a duty to apply the law as it exists when the 

appellate court renders its decision.’ ” (People v. Fuentes (2016) 1 Cal.5th 

218, 231.)
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but of a sovereignty whose obligation to govern impartially is as compelling 

as its obligation to govern at all; and whose interest, therefore, in a criminal 

prosecution is not that it shall win a case, but that justice shall be done.’ ” ’ ” 

(Nazir v. Superior Ct. (2022) 79 Cal.App.5th 478, 493.) “[A] prosecutor’s 

motion to dismiss . . . under section 1385 is not ‘a constitutionally protected 

exercise of prosecutorial discretion,’ and the trial court may deny such a 

motion. . . . [O]nce a district attorney files charges and invokes the court’s 

jurisdiction, only the court, not the district attorney, can dismiss an action or 

enhancement under section 1385.” (Id. at pp. 499–500.) “A court acting 

while unaware of the scope of its discretion is understood to have abused it.” 

(People v. Tirado (2022) 12 Cal.5th 688, 694.) 

C. Analysis

Khemphomma contends: “The court’s failure to understand it had 

discretion to deny the prosecutor’s last minute request, and failure to exercise 

any discretion, denied [him] his due process right to a fair trial and to present 

a complete defense to the charges against him.” We agree with the People 

that gross vehicular manslaughter is not a lesser included offense of murder, 

but a lesser related offense. Once the count was dismissed, the court was not 

required to instruct regarding gross vehicular manslaughter. (People v. 

Sanchez (2001) 24 Cal.4th 983, 988, 991-993, overruled on another ground in 

People v. Reed (2006) 38 Cal.4th 1224, 1228-1229; People v. Foster (2010) 50 

Cal.4th 1301, 1344 [“ ‘[T]here is no federal constitutional right of a defendant 

to compel the giving of lesser-related-offense instructions’ ”])

Even though we find no constitutional violation from the dismissal of 

the gross vehicular manslaughter count, we find it difficult to conceive how a 

dismissal induced by a prosecutor’s misstatement of the law to the court can 

be characterized as being in the interest of justice. 
12

The People argue that any error was harmless under either the 

standard set forth in People v. Watson (1956) 46 Cal.2d 818, mandating 

reversal only if it is reasonably probable the jury would have returned a 

different verdict absent the errors complained of (People v. Rogers (2006) 39 

Cal.4th 826, 867-868 [applying this standard to the erroneous failure to 

instruct on a lesser included offense]), or the stricter beyond a reasonable 

doubt standard set forth in Chapman v. California (1967) 386 U.S. 18. We 

disagree.

We find merit in Khemphomma’s contention that “If the jury had any 

doubts, particularly concerning the implied malice element but believed 

Khemphomma was responsible for his mother’s death, it could have convicted 

him of gross vehicular manslaughter and acquitted him of murder.” Under 

the particular facts of this case, “[g]iven the evidence before the jury, there is 

‘ “ ‘more than an abstract possibility’ ” ’ [citation] that at least one juror” 

(People v. Hendrix (2022) 13 Cal.5th 933, 947) would have found 

Khemphomma not guilty of second degree murder. It is likely the prosecutor

shared this concern, or she would not have moved to dismiss the count. 

Moreover, in filing the gross vehicular manslaughter count in the first 

instance, the People believed that such a possible resolution of the case 

should be within the purview of the jury. Presented with counts of both 

second degree murder and gross vehicular manslaughter, a reasonable juror 

could conclude Khemphomma would not do anything to intentionally harm 

his mother and, therefore he lacked the implied malice to commit second 

degree murder.

III. Sentencing Issues

Khemphomma contends and the People concede he is entitled to 

resentencing under Senate Bill No. 567 and Assembly Bill Nos. 124, and 518. 
13

In light of our reversal of the count 1 conviction, we need not address this 

issue.

The People correctly point out that the abstract of judgment 

erroneously states that Khemphomma was convicted of first degree murder. 

The court is directed to correct this error to show he was in fact convicted of 

second degree murder.

DISPOSITION

The judgment is reversed. The matter is remanded for proceedings 

consistent with this opinion.

O’ROURKE, Acting P. J.

WE CONCUR:

IRION, J.

DO, J.