Filed 6/22/21 In re S.T. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re S.T., a Person Coming Under the Juvenile 

Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

S.T.,

Defendant and Appellant.

F080753

(Stanislaus Super. Ct. No. 511699)

OPINION

APPEAL from orders of the Superior Court of Stanislaus County. Linda A. 

McFadden, Judge.

Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Tia M. Coronado, and Daniel B. 

Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

Minor S.T. appeals from the juvenile court’s jurisdictional and dispositional 

orders, which sustained a Welfare and Institutions Code section 602 petition based on the 

allegations that S.T. committed three counts of first degree murder (Pen. Code, § 187, 

subd. (a);1 counts I–III) and one count of robbery (§ 211; count IV), and which 

committed S.T. to the Department of Corrections and Rehabilitation, Department of 

Juvenile Justice (“DJJ”), for a maximum term of 75 years to life.

On appeal, S.T. contends the evidence was insufficient to sustain the allegations 

that he committed first degree murder. We conclude the evidence is sufficient to sustain 

the allegations and we affirm.

FACTUAL AND PROCEDURAL HISTORY

I. Initial Proceedings

On January 20, 2017, the Stanislaus County District Attorney filed an amended 

juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)), alleging that S.T. 

committed three counts of murder (§ 187, subd. (a); counts I–III), robbery (§ 211; count 

IV), second degree burglary (§ 459; count V), and participation in a criminal street gang 

(§ 186.22, subd. (a); count VI). On the same date, the People filed a motion to transfer 

the matter to criminal court. (Former Welf. & Inst. Code, § 707, subds. (b), (c).) 

A two-day transfer hearing was held on September 12 and September 14, 2018, 

and the matter was taken under submission for several months. During the pendency of 

the transfer motion, Senate Bill No. 1391 (2017–2018 Reg. Sess.) took effect on 

January 1, 2019. As relevant here, Senate Bill No. 1391 removed the authority of the 

juvenile court to transfer to criminal court a minor who was 14 or 15 years old at the time 

1 All further statutory references are to the Penal Code unless otherwise stated.
3.

of the violation, except in circumstances not relevant here.2 (Stats. 2018, c. 1012, § 1; 

see Welf. & Inst. Code, § 707, subd. (a)(2).) 

Thereafter, on April 25, 2019, the superior court found Senate Bill No. 1391 

unconstitutional and ordered the case transferred to criminal court. On September 20, 

2019, this court issued an alternative writ of mandate, directing the superior court to 

either vacate its April 25, 2019, ruling or show cause why S.T. should not be granted 

relief. (S.T. v. Superior Court (Sept. 19, 2020, F079300) [order].) Thereafter, the 

superior court vacated its ruling and transferred the case back to juvenile court for further 

proceedings.

II. Jurisdictional Hearing

The jurisdictional hearing commenced on January 7, 2020, and continued over the 

course of four days. The following evidence was presented.

A. The Robbery and Murders

Vanh Thommvongsa, his wife Phouvieng, and their daughter Nancy3ran a market 

in the city of Modesto for approximately 15 years. They were fatally shot during a 

robbery that took place on January 25, 2011. Vanh, age 55, was found near the front of 

the store. He died from three gunshot wounds to his head, neck, and chest. Phouvieng, 

age 49, was found in the store’s back storage room. She was shot five times and died 

from gunshot wounds to her face, left shoulder, chest, right leg, and left hand. Nancy, 

age 28, was found in a loft near the back of the store. She died from a single gunshot that 

entered her right eye socket and exited her left temple. There was no evidence the 

victims were shot at close range.

2 S.T. was 15 years old at the time the violations at issue here occurred.

3 Because the victims share the same last name, we refer to them by their first 

names for clarity. 
4.

When police arrived on scene, they found Flaming Hot Cheetos and distinctive 

green candy wrappers strewn on the pavement in front of the store. Both items were also 

sold inside the store. Inside the store, police found several shell casings for .22-caliber 

cartridges, as well as bullet fragments.

B. The Investigation

At approximately 10:45 a.m. on the morning of the incident, a woman parked in 

the parking lot of a furniture store adjacent to the market observed three men exit a green 

Honda and enter the furniture store. One of the men was wearing a knit cap with flaps on 

each side that covered his ears and two balls hanging from each side. After 

approximately 10 minutes, the men exited the furniture store and returned to their car, 

which they moved closer to the market. The men then walked toward the entrance of the 

market and the witness lost sight of them. A few minutes later, two men returned to the 

Honda and began backing out of the parking spot. When the third man returned and got 

in the car, they drove off. After the shooting, the witness relayed this information to the 

police.

Officers later stopped a vehicle matching the witness’s description at a fast food 

restaurant in the city of Ceres. At that time, Oloth Phommahaxay was driving the 

vehicle, Chris D.4 was in the front passenger seat, and S.T. was in the rear seat. 

Phommahaxay was found to be carrying $37 in cash and approximately 12 candies in 

green wrappers of the same kind sold at the market. S.T. had red and orange powder on 

his fingers, which an officer described as consistent with his having recently handled 

Cheetos. The witness from the furniture store identified the Honda as the one she had 

seen outside the market that morning.

4 Because Chris was a juvenile at the time of the offenses, we refer to him by first 

name. (Cal. Rules of Court, rule 8.401(a)(2).) No disrespect is intended.
5.

Inside the Honda, officers found more green candy wrappers. Officers also found 

two black gloves in a rear cup holder in the center console. On the driver’s seat they 

found a knit cap with three fluffy balls on the crown of the cap. In a compartment under 

the dash, officers found prepaid phone cards similar to those sold at the market. Officers 

found approximately $32 in loose change in a bag inside the glove box and another 

approximately $11 in change in an ashtray. Officers found two .22-caliber spent 

cartridge cases under the right rear seat, one .22-caliber spent cartridge case in a seam 

between the right rear wheel and rear cargo floorboard, and one .22-caliber spent 

cartridge case on the right rear wheel hub in the cargo area.

Following a tip, officers searched the garage of a home where they were told a gun 

used in the incident may have been located. There, they found a Ruger model 10/22 .22-

caliber long rifle with two .22-caliber cartridges in the magazine. Ballistics tests revealed 

that the cartridges found at the market were fired from that rifle. Photographs of the rifle 

were introduced into evidence and showed that the butt of the rifle had been cut down 

and wrapped in duct tape.

C. S.T.’s Admissions

Former Modesto Police Department Detective Terry Seese interviewed S.T. for 

several hours on the day he was taken into custody.5 S.T. told Seese that Phommahaxay 

and Chris picked S.T. up at his house and told S.T. they were going to “do a lick,” which 

S.T. understood meant they would commit a robbery. When S.T. asked how they 

intended to carry out the robbery, Phommahaxay told him, “[W]e’re going to run up in 

there and we’re going to punch them” and “put them to the ground.”

When they arrived at the market, S.T., Phommahaxay, and Chris went to the 

adjacent furniture store to use the restroom and “watch” the market. They eventually left 

5 S.T. waived his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436.) 

Detective Seese testified to S.T.’s statements.
6.

the furniture store and repositioned the Honda in the parking lot, closer to the market. 

When they entered the market, S.T. stood at the front of the store near a water fountain or 

water dispenser. Phommahaxay and Chris walked around the market as though they were 

shopping. Eventually, Phommahaxay picked up a few items and set them on the counter. 

He then asked S.T. to “take care of” a woman in the loft area of the store, which S.T. 

understood as meaning to prevent her from calling 911.

As S.T. walked toward the loft area of the store, he saw Phommahaxay remove 

from his pants a silver rifle with a black handle. S.T. told Detective Seese that he had not 

seen the rifle prior to that moment.

Near the back of the store, S.T. saw a woman in a back room who had her back 

toward him. As he began climbing a ladder to the loft area, he heard four gunshots from 

the front of the store. He then saw the woman from the back room moving toward the 

front of the store and, when he reached the top of the ladder, he saw a younger woman 

looking out through a window in the loft toward the floor of the store. He heard another 

gunshot and sensed something like a piece of wood zoom past his head. At that point, the 

younger woman collapsed in the loft window. S.T. began to collect loose change from 

the desk where the young woman was seated and placed it in two rainbow colored 

baskets. He heard three additional gunshots and dropped one of the baskets of coins. He 

descended the ladder with the other basket. He saw the older woman on the store floor,

and she appeared to be alive. S.T. dragged her toward a wall and tried to prop her up. He 

then ran out of the store, passing by a man on the floor at the front of the store. S.T. got 

into the Honda with Phommahaxay and Chris. S.T. believed the man at the front of the 

store was shot first, followed by the young woman in the loft, and then the older woman 

in the back of the store.

As they drove away from the market, Phommahaxay handed S.T. the rifle and 

asked him to “ ‘check it.’ ” S.T. unloaded the rifle, removed the magazine, and saw it 

contained two rounds. He wore gloves while doing this in order to avoid leaving his 
7.

fingerprints on the rifle.6 S.T. told Detective Seese he did not know what happened to 

the rifle after that. He identified the rifle eventually seized by police as the one 

Phommahaxay had. He took coins from the rainbow basket and placed them in a plastic 

bag, then tossed the basket in the trash.7

D. Closing Argument and Adjudication

At the conclusion of the hearing, the court heard closing argument, which focused 

on the applicability of Senate Bill No. 1437 (2017–2018 Reg. Sess.) and then-recent 

changes to the felony-murder rule. (See § 189, subd. (e).) The People argued that S.T. 

had committed felony murder because he was a major participant in the underlying 

robbery who acted with reckless indifference to human life. S.T.’s counsel argued S.T. 

was not a major participant in the robbery and did not act with reckless indifference to 

human life.

The court ultimately sustained the allegations in counts I through IV.8 With 

regard to the murders, the court found that S.T. was a major participant in the robbery 

who acted with reckless indifference to human life. The court noted that S.T. knew his 

companions intended to commit a robbery when he got in the car. He also went with his 

companions to the adjacent furniture store to scope out the market before the robbery and 

brought gloves with him to the encounter.9 The court also stated it was “[v]ery difficult” 

to believe S.T. was unaware of the firearm prior to the robbery, and the court opined that 

S.T. “knew that there was a weapon there.” !(RT 293)! The court also noted that S.T. 

6 Detective Seese could not recall whether S.T. stated that he wore gloves inside 

the market.

7 The police later recovered a rainbow basket from the garbage can at a house S.T. 

identified.

8 Counts V and VI were dismissed on the prosecution’s motion.

9 S.T.’s counsel interjected that S.T. told Detective Seese he brought the gloves 

with him because it was cold. The court responded that “those gloves were a good way 

to hide the fact that you were involved in the robbery.”
8.

understood his companions intended to “punch the people down to the ground,” which 

suggested S.T. shared in their intent to use such force as was necessary to render the 

victims unable to resist. The court further noted that S.T. initially remained near the door 

of the market, which prevented anyone from getting out to call for help. S.T. also 

complied with Phommahaxay’s directive to ensure that no one in the loft area called 911, 

which suggested S.T. was prepared to use “a lot of force” against the victims to gain 

compliance.

The court also considered S.T.’s conduct once the shooting commenced. At that 

point, S.T. continued his participation in the robbery by climbing up to the loft and 

“taking away some of the loot,” which, in the court’s view, indicated S.T. was not 

surprised by the shooting. Additionally, the court noted S.T. unloaded the weapon and 

disposed of unexpended cartridges and, at some point, ate Cheetos. The court opined that 

the entire event “shows complete reckless indifference to human life,” and that S.T. 

showed no care that anyone was killed.

III. Disposition Hearing

On February 5, 2020, the juvenile court held a disposition hearing, declared S.T. a 

ward of the court, and committed him to the DJJ for an aggregate term of 75 years to life, 

comprised of a term of 25 years to life on each of counts I through III, and a concurrent 

three-year term on count IV.10

DISCUSSION

I. Applicable Law

A. Sufficiency of the Evidence

In considering the sufficiency of the evidence in proceedings before the juvenile 

court, a reviewing court applies the same standard of review that applies in criminal 

10 The juvenile court pointed out that S.T. nonetheless would be released at age 

25. (See Welf. & Inst. Code, § 607, subd. (b).) The disposition hearing was held a few 

weeks before S.T.’s 25th birthday.
9.

cases. (In re Matthew A. (2008) 165 Cal.App.4th 537, 540.) “The test for evaluating a 

sufficiency of evidence claim is deferential: ‘whether, on the entire record, a rational 

trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We 

must ‘view the evidence in the light most favorable to the People’ and ‘presume in 

support of the judgment the existence of every fact the trier could reasonably deduce 

from the evidence.’ [Citation.] We must also ‘accept logical inferences that the [trier of 

fact] might have drawn from the circumstantial evidence.’ [Citation.]” (People v. Flores

(2020) 9 Cal.5th 371, 411.) 

B. Felony Murder After Senate Bill No. 1437

Effective January 1, 2019, Senate Bill No. 1437 “amended the Penal Code to 

modify accomplice liability for murder and the felony-murder rule. [Citation.]” (People 

v. Gentile (2020) 10 Cal.5th 830, 841; see Stats. 2018, ch. 1015.) Relevant here, the bill

amended the felony-murder rule by adding section 189, subdivision (e): 

“ ‘A participant in the perpetration or attempted perpetration of [qualifying 

felonies] in which a death occurs is liable for murder only if one of the 

following is proven: [¶] (1) The person was the actual killer. [¶] (2) The 

person was not the actual killer, but, with the intent to kill, aided, abetted, 

counseled, commanded, induced, solicited, requested, or assisted the actual 

killer in the commission of murder in the first degree. [¶] (3) The person 

was a major participant in the underlying felony and acted with reckless 

indifference to human life, as described in subdivision (d) of Section 

190.2.’ ” (§ 189, subd. (e), italics added; accord, Gentile, at p. 842.) 

To be a major participant in the underlying felony, “a defendant’s personal 

involvement must be substantial, greater than the actions of an ordinary aider and abettor 

to an ordinary felony murder ....” (People v. Banks (2015) 61 Cal.4th 788, 802 (Banks). 

“The ultimate question pertaining to being a major participant is ‘whether the defendant’s 

participation “in criminal activities known to carry a grave risk of death” [citation] was 

sufficiently significant to be considered “major” [citations].” ’ [Citation.]” (People v. 

Clark (2016) 63 Cal.4th 522, 611 (Clark).) The following factors may be relevant to a 
10.

determination of whether a defendant or, as here, a juvenile, was a major participant in a 

felony murder: “What role did the defendant have in planning the criminal enterprise that 

led to one or more deaths? What role did the defendant have in supplying or using lethal 

weapons? What awareness did the defendant have of particular dangers posed by the 

nature of the crime, weapons used, or past experience or conduct of the other 

participants? Was the defendant present at the scene of the killing, in a position to 

facilitate or prevent the actual murder, and did his or her own actions or inaction play a 

particular role in the death? What did the defendant do after lethal force was used?” 

(Banks, at p. 803, fn. omitted; accord Clark, at p. 611.) “No one of these considerations 

is necessary, nor is any one of them necessarily sufficient.” (Banks, at p. 803.)

Reckless indifference to human life has both a subjective and an objective 

element. (In re Scoggins (2020) 9 Cal.5th 667, 677 (Scoggins).) “As to the subjective 

element, ‘[t]he defendant must be aware of and willingly involved in the violent manner 

in which the particular offense is committed,’ and he or she must consciously disregard 

‘the significant risk of death his or her actions create.’ [Citations.] As to the objective 

element, ‘ “[t]he risk [of death] must be of such a nature and degree that, considering the 

nature and purpose of the actor’s conduct and the circumstances known to him [or her], 

its disregard involves a gross deviation from the standard of conduct that a law-abiding 

person would observe in the actor’s situation.” ’ [Citation.]” (Ibid.) “ ‘Awareness of no 

more than the foreseeable risk of death inherent in any [violent felony] is insufficient’ to 

establish reckless indifference to human life; ‘only knowingly creating a “grave risk of 

death” ’ satisfies the statutory requirement. [Citation.]” (Ibid.) The mere fact that a 

participant in an armed robbery could anticipate that lethal force might be used is not 

sufficient to establish reckless indifference. (Ibid.)

The following factors may be relevant to whether a defendant displayed reckless 

indifference to human life:
11.

“Did the defendant use or know that a gun would be used during the 

felony? How many weapons were ultimately used? Was the defendant 

physically present at the crime? Did he or she have the opportunity to 

restrain the crime or aid the victim? What was the duration of the 

interaction between the perpetrators of the felony and the victims? What 

was the defendant’s knowledge of his or her confederate’s propensity for 

violence or likelihood of using lethal force? What efforts did the defendant 

make to minimize the risks of violence during the felony? [Citation.]” 

(Scoggins, supra, 9 Cal.5th at p. 677.)

A defendant’s actions after a shooting may bear on his or her mental state at the time of 

the shooting but may be less probative if opposing inferences may be drawn from the 

circumstances. (Id. at p. 679.) 

II. Analysis

A. Major Participant

Substantial evidence supports the conclusion that S.T. was a major participant in 

the robbery. 

S.T. knew when Phommahaxay and Chris picked him up that they intended to 

carry out a robbery involving violence. Prior to the robbery, he accompanied 

Phommahaxay and Chris to the adjacent furniture store to watch the market. He then 

accompanied them into the market, where he first stood near the entrance and then went 

to the loft to prevent the woman there from calling 911. He did not hesitate once shots 

rang out. Instead, he proceeded into the loft where he took coins from the desk where the 

young woman was seated and mortally wounded. Although he dropped one basket when 

additional shots rang out, he fled from the scene with the other basket of coins. He later 

unloaded the rifle and disposed of the basket. Taken together, this conduct constitutes 

major participation in the robbery. (See Banks, supra, 61 Cal.4th at p. 803.) S.T.’s 

conduct went beyond that of an “ordinary aider and abettor.” (Id. at p. 802.)

We acknowledge the evidence did not suggest S.T. was the mastermind behind the 

robbery. Nonetheless, he participated to some extent in the preparations. We also 

acknowledge the evidence did not suggest S.T. supplied the firearm used in the robbery, 
12.

and the evidence was somewhat conflicting as to when S.T. first learned that his 

companions were in possession of a firearm. Although S.T. claimed he was unaware of 

the firearm until he was on his way to the loft, the court found this claim not credible, 

primarily based on the size of the firearm, a photograph of which was entered into 

evidence. Regardless, however, S.T. was indisputably aware of the firearm as he climbed 

the ladder into the loft and was at that time aware of his companion’s intent to use 

violence against the victims. At that point, S.T. had an opportunity, albeit brief, to 

abandon his role in the robbery or to protest the use of the firearm. He did not do so. To 

the contrary, neither the firearm nor the shooting deterred his participation in the robbery, 

and he made no effort to prevent the murders. Thus, while some of the Banks factors 

were not present in this case (see Banks, supra, 61 Cal.4th at p. 803), those factors carry 

relatively minimal weight in light of S.T.’s direct and substantial participation in the 

offense itself.

Accordingly, we conclude the evidence was sufficient to support an inference that 

S.T. was a major participant in the robbery.

B. Reckless Indifference to Human Life

Substantial evidence also supports the conclusion that S.T. acted with reckless 

indifference to human life.

We note that the evidence demonstrating S.T.’s role as a major participant is also 

relevant to the analysis of whether he acted with reckless indifference. (Clark, supra, 63 

Cal.4th at p. 615 [although the requirements are stated separately, “ ‘they often 

overlap’ ”].) In particular, S.T.’s physical presence at the scene of the robbery and 

murders and his failure to make any attempt to prevent the shootings is particularly 

significant. Our Supreme Court and the United States Supreme Court have “stressed the 

importance of presence [at the scene] to culpability.” (Id., at p. 619; see Tison v. Arizona 

(1987) 481 U.S. 137, 158.) A defendant who is present has “ ‘an opportunity to act as a 

restraining influence on murderous cohorts. If the defendant fails to act as a restraining 
13.

influence, then the defendant is arguably more at fault for the resulting murders.’ 

[Citation.]” (Clark, at p. 619.) 

We acknowledge that the murders appear to have occurred in quick succession, 

giving S.T. little opportunity to intervene. However, as we indicated above, in that brief 

interval, S.T. could have yelled out in warning to the victims, refused to comply with 

Phommahaxay’s directives, demanded that Phommahaxay stop or that they all leave, 

attempted to distract Phommahaxay, or taken other evasive action. (See In re Loza 

(2017) 10 Cal.App.5th 38, 53–54.) Instead, S.T. proceeded to the loft with the intent to 

prevent one of the victims from calling 911 and took coins from the desk of the mortally 

wounded victim, rather than aiding her. Then, as he fled, he unloaded the weapon and ate 

Cheetos. In other words, S.T.’s response to the shooting did not involve surprise, regret, 

or remorse, but rather suggested that he found the shootings to be entirely predictable. 

(See People v. Douglas (2020) 56 Cal.App.5th 1, 9–11.) His indifference at having 

participated in the commission of three murders, combined with his conduct both prior to 

and during the shooting, is substantial evidence that he acted with reckless indifference to 

human life. 

Lastly, we note that the facts of this case are distinguishable from those in which 

courts have found the evidence insufficient to support a finding of reckless indifference. 

Such cases generally involve a defendant who was either a getaway driver, or who was 

involved in planning the underlying offense but was not present for the killing. (See, e.g., 

In re Taylor (2019) 34 Cal.App.5th 543, 557–559 [evidence insufficient where the 

defendant planned a robbery and served as the getaway driver]; In re Ramirez (2019) 32 

Cal.App.5th 384, 404–405, 408, fn. 12 [evidence insufficient where the defendant 

provided the shooter with a gun at a time when no crime was contemplated, and

defendant served as getaway driver but was not present for the murder]; In re Bennett

(2018) 26 Cal.App.5th 1002, 1019–1020, 1023–1026 [defendant planned robbery and 

was driver, but was not present at the murder scene]; In re Miller (2017) 14 Cal.App.5th 
14.

960, 964–965, 975–976 [defendant selected robbery target but was not at the murder 

scene and was unaware a gun would be used].) Here, S.T. was at least minimally 

involved in preparing for the robbery, was aware of his companions’ intent to use 

violence, claimed he became aware of the firearm during the course of the robbery, and 

was present for the robbery and murders.

In sum, substantial evidence supports the court’s finding that S.T. committed 

felony murder as a major participant in the robbery who acted with reckless indifference 

to human life. 

DISPOSITION

The jurisdiction and disposition orders are affirmed. 

POOCHIGIAN, J.

WE CONCUR:

LEVY, Acting P.J.

SNAUFFER, J.