Filed 7/20/16 P. v. Xiong 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

TOU VANG XIONG,

Defendant and Appellant.

F069721

(Super. Ct. No. 1405399)

OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T. 

Steffen, Judge.

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey 

D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

Tou Vang Xiong (defendant) stands convicted, following a jury trial, of two 

counts of premeditated murder in which he personally and intentionally discharged a 

firearm and proximately caused great bodily injury or death to Gao Yang and Nhia Yang

(Pen. Code,1 §§ 187, subd. (a), 12022.53, subd. (d); counts I & II), premeditated 

attempted murder in which he personally and intentionally discharged a firearm and 

proximately caused great bodily injury or death to Lee Pao Yang (§§ 187, subd. (a), 664, 

12022.53, subd. (d); count III), and assault with a deadly weapon upon Xay Yang, during 

the commission of which he personally used a firearm (§§ 245, subd. (a)(1), 12022.5, 

subd. (a); count IV). His motion for a new trial was denied, and he was sentenced to 

fully consecutive indeterminate terms on counts I through III, and seven years in prison 

on count IV. He was also ordered to pay victim restitution, along with various fees, fines, 

and assessments. 

On appeal, we hold: (1) The jury’s findings of premeditation must be reversed 

due to the erroneous admission of evidence of defendant’s postoffense conduct, but 

defendant’s other claims of evidentiary error do not require reversal; (2) the trial court did 

not err by excusing a juror for illness; (3) the trial court acted within its discretion by 

denying defendant’s posttrial motion for substitute counsel; and (4) defendant is not 

entitled to reversal of the conviction on count IV. We conditionally modify the judgment 

on counts I through III and remand the matter to the trial court with directions. We also 

order the correction of a clerical error with respect to the judgment on count IV. In all 

other respects, we affirm.

 

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

FACTS

I

PROSECUTION EVIDENCE

The Charged Offenses

As of July 20, 2009, Xay Yang resided in the 1700 block of Radley Place, 

Modesto.2 Xay, who is Hmong, explained there are approximately eight last names in 

the Hmong culture. If two people share the same last name, they are automatically part 

of the same clan. It is considered taboo to date or marry someone from the same clan, 

even though blood ties, if any, may be very distant. Clan members refer to each other as 

cousins or, in the case of someone older, grandparent or aunt or uncle, even if they are 

not blood relations. 

Nhia Yang was Xay’s brother. As of July 20, he was living in a detached room 

behind dwelling A. The room had two doors and a small window, as well as electricity, 

but no kitchen or bathroom. 

Xyeem Yang had known defendant for two months as of July 20. They were 

“[b]uddies.” They lived together in Winton, along with Xyeem’s “uncle,” Bee Yang, 

Bee’s son, and Gao Yang.3 Gao and defendant had been going out as long as Xyeem had 

known defendant. 

Lee Pao Yang lived in the same residential complex as defendant, and they 

became friends. As of July 20, they had known each other since Lee got out of jail, 

 

2 To avoid confusion, we refer to the Yangs and certain other individuals by their 

first names. No disrespect is intended. We also refer to the scene of the shooting, which 

was the address at which Xay lived, as dwelling A, and to the house directly across the 

street as dwelling B. 

Undesignated references to dates in the statement of facts are to the year 2009.

3 Bee was not really Xyeem’s uncle, but Xyeem referred to him as such as a sign of

respect. Xyeem had known Nhia most of his life, but was not sure if there was a close 

family relationship. 
4.

following a receiving stolen property conviction, in June. Gao, Lee’s distant cousin, 

introduced them. Lee had known Nhia two or three weeks. Defendant introduced them. 

During the time they knew each other, Lee and defendant smoked crystal 

methamphetamine together approximately twice a day almost every day. Defendant 

furnished the drugs. Lee did not know where he got them, although he personally saw 

defendant sell drugs.

Around 5:00 or 6:00 Saturday evening, July 18, Xyeem, defendant, Gao, and Lee 

went to a party in Modesto. Lee did not want to go and said he had to attend an uncle’s 

funeral in Sacramento, but defendant pointed a gun at him and said if Lee did not go with 

him, defendant was going to take Lee’s “whole family to a different place.” Defendant 

took what Xyeem believed to be an AR-15 firearm in the car with them. He said it was 

for protection, but did not say protection from what.4 Xyeem did not remember what 

happened from the time of the party into the next day, because he was drinking. He did 

see Gao and defendant arguing for a little bit; however, this was typical of their 

relationship. Xyeem saw them arguing every day about their relationship. Both would

yell and accuse the other of cheating. Then they would make up. 

The group stayed at the party until early Sunday morning, July 19. They then 

went to Nhia’s home, the detached room behind dwelling A. They all smoked 

methamphetamine, including Nhia, who had also been at the party.5 At some point (Lee 

believed around 3:00 or 4:00 a.m.), everyone fell asleep. Xyeem was in the main house. 

 

4

In the past, Xyeem had seen defendant with a .357 revolver and a .380 pistol in 

addition to the AR-15. 

According to Lee, defendant wrapped the AR-15 in a white towel and put it in the 

trunk just before they left for Modesto. 

5 Lee originally denied doing drugs to police because he was on probation. The five 

of them (Lee, Nhia, Xyeem, Gao, and defendant) smoked methamphetamine furnished by

defendant on multiple occasions over the course of the weekend, although most of the 

times, Xyeem and Lee did not join in. 
5.

Lee slept on the couch in Nhia’s room. Nhia slept on one bed. Defendant and Gao slept 

on the other bed. 

Sunday morning, everyone woke and started going about their day. According to 

Lee, they all did drugs and then ate breakfast in the kitchen of the main house.

According to Xyeem, defendant said something about people wanting to do “voodoo 

things” to him. Defendant, Gao, and Xyeem went out to buy food and go to the Buddhist 

temple.6It was defendant’s idea to go to the temple. He wanted to be blessed. He said 

he thought there was a bad spirit in him and he wanted to get rid of it. After they left the 

temple, they bought some groceries, then went home and cooked. 

Xyeem recalled that he, defendant, and Gao returned to Nhia’s room and smoked 

some methamphetamine. At some point, Gao cooked, and they ate in the living room of 

the main house. They then returned to Nhia’s room. This was Sunday night, July 19. 

Around 10:00 p.m. or midnight, defendant, Gao, and Nhia went to Walmart to get some 

clothes. After they returned, defendant and Gao argued about being possessed and 

cheating on each other. At some point, defendant pulled out a revolver, unloaded it 

except for one bullet, spun the cylinder, pointed it at Gao, and pulled the trigger.

Defendant was smiling when he did it. Xyeem had seen defendant do the same thing two 

or three times when arguing with Gao. Because Gao and defendant were getting violent, 

Xyeem put the AR-15 between Nhia and the bed. He also told defendant to “be cool.” 

Defendant “chill[ed] out” after that. The five of them — defendant, Gao, Xyeem, Nhia, 

and Lee — then smoked methamphetamine “a couple times.” About two hours later, 

 

6 Nhia and Lee stayed home. Lee did not call the police at this time to report 

defendant had threatened his family, because he was afraid defendant would return, learn 

he had called from Nhia, who was defendant’s best friend, and do something to Lee’s 

family or shoot him. 

Lee estimated defendant and Gao were gone until night, perhaps six or seven 

hours. Just before defendant, Gao, and Xyeem left, Lee saw defendant bring the AR-15 

into Nhia’s room. It was still wrapped in the towel. 
6.

around midnight or 1:00 a.m., Xyeem went to the front bedroom in the main house to 

sleep.

Lee recalled that defendant, Gao, and Xyeem returned around 8:00 or 9:00 p.m. 

Defendant brought some food and crystal methamphetamine into Nhia’s room. Nhia 

cooked the food, and they all ate in that room. They all smoked some of the 

methamphetamine. Lee estimated the five of them had around four puffs each. After 

that, they just sat around and talked. This was around midnight. Lee was lying on the 

couch, texting his girlfriend on defendant’s phone.7 He was not paying attention to 

anything going on in the room.

Everyone went to bed between 1:00 a.m. and 2:00 a.m., with Lee, Nhia, defendant, 

and Gao bedding down in Nhia’s room. As on the night before, defendant and Gao were 

on one bed, Nhia was on the other bed on the other side of the room, and Lee was on the 

couch. Xyeem was in the front house. 

Sometime after everyone went to bed, Lee, who was still texting his girlfriend, 

heard defendant and Gao moving and whispering as they tried to have sex. Gao did not 

want to have sex while Lee and Nhia were in the room, and she and defendant started 

arguing. It was commonplace for them to argue; Lee estimated they argued about twice a 

week, and he basically ignored it.8 This night, the argument went on and on. Lee tried to 

sleep, but had to use the bathroom and so he got up around 4:30 to 5:00 a.m. and entered 

the front house through the French door in the back. The lights were off in Nhia’s room.

Defendant and Gao had been loudly arguing for an hour or two. At no time that evening 

had Lee seen defendant pull a gun on Gao. At the time Lee left the room, the rifle was 

between defendant’s and Nhia’s beds. 

 

7 Lee did not have a phone of his own. Defendant loaned him his. 

8 Lee testified at the preliminary hearing that the relationship between the two was 

fine, and they argued once in a while, mostly over money and drugs. 
7.

Because he did not feel comfortable listening to Gao and defendant argue, Lee 

remained in the bathroom a good 15 to 20 minutes. When he returned, the lights were on 

in Nhia’s room. Defendant and Gao were still yelling at each other. Nhia had gotten out 

of bed and was sitting on a chair. Gao was sitting on the bed. Defendant was holding the 

rifle. He was the only person in the room holding a weapon. 

Gao and defendant argued for another five minutes or so, then defendant fired five 

shots into the ceiling by Nhia’s bed. He was very angry. Everyone fell silent and looked 

at him. He then pointed the AR-15 directly at Gao, who put her hands up to try to protect 

her face, and fired three times without saying anything. The bullets struck Gao in the 

face, and she fell on the bed. Defendant then started to swing the gun at Lee, who was 

standing in the doorway, and Lee crouched and ran as gunfire came his way. 

Lee ran around the house, then stopped to check if he had been hit. He realized he 

had been shot because blood was coming from his mouth.9 He heard defendant say, 

“This is what you get, Nhia.” Defendant sounded angry. Lee heard a couple of gunshots 

a couple seconds after defendant spoke, and he took off running again. He ran for several 

blocks, because he was scared of defendant chasing after him and killing him. He called 

911 on defendant’s phone.

On the night of July 19 and into the early morning of July 20, Xay, who was a 

fulltime student and also worked, was finishing up her homework in her room, which was 

adjacent to the walkway separating Nhia’s room from the main house. She was 

completely sober. 

Xay went to bed around 2:00 a.m. on Monday, July 20. She subsequently was 

awakened by a few loud pops that seemed to come from the direction of Nhia’s room.

She looked at the clock; it was 5:20 a.m. She heard Nhia say something like, “Hey, 

 

9 Lee was struck on the chin and both arms. He ultimately was hospitalized for two 

weeks as a result, and had to have surgery to have his chin reconstructed and his teeth 

repaired. Afterward, his jaw was wired shut for six months. 
8.

man,” or “Eh, man.” He seemed surprised and confused. His voice came from inside his 

room. Xay then heard three or four more shots. 

Not realizing at the time she was hearing gunshots, Xay ran toward the French

door, which was the only exit directly into the backyard, to see what was going on. She 

saw defendant standing on the walkway a couple of feet from the French door and four or 

five feet from the east entrance to Nhia’s room. Defendant was holding a rifle and a 

handgun. He was pointing the rifle toward the east door of Nhia’s room. He appeared 

cautious, as if he was still waiting for someone. He did not ask Xay for help or to call an 

ambulance. He told her, “You guys set these tigers on me,” and that there were tigers 

everywhere.10 She thought he meant actual people that were related to her, i.e., members 

of the Yang clan, as opposed to an animal with claws, because Hmongs usually used 

“tiger” to refer to someone the person disliked. “Tiger” was a common insult.11 It could, 

however, refer to a supernatural being that was a menacing creature. At some point, 

defendant told Xay he was a shaman and was capable of seeing “these things.”12 Other 

than using the word “tiger,” defendant seemed oriented to time and place. Xay believed 

defendant to be referring to people. 

 

10 Xay also reported defendant said, “You guys set these monsters on me.” 

11 Xay explained that animals play a significant role in Hmong culture. Certain 

animals, like tigers, carry a negative connotation. 

12 Xay explained the Hmong people’s cultural beliefs include a deep-rooted belief in 

the spiritual world. The Hmong perform rituals on a yearly basis to keep their spiritual 

being well. They also have shamans who are capable of communicating with the dead, 

and who do what is necessary to repair the living spiritual being. The spirits choose who 

will be a shaman, and while there are quite a few shamans in the Hmong population in 

Stanislaus County, it is common for people to claim to be shamans when they are not. In 

the Hmong culture, there is no designated place to go to worship, although Xay knew of 

Laos Temple in Ceres. If a person needs prayer or blessings, he or she goes to a shaman. 

Likewise, if a person feels he or she has an evil spirit inside, which is relatively common, 

he or she normally visits a shaman. 
9.

Defendant also demanded several times that Xay call his father. Xay truthfully 

told him the house phone could not make long-distance calls. She had a cell phone in her 

hand, but hid it from defendant because she did not want him to escape. 

Defendant had Xay open the French door all the way so he could see inside. He 

pointed the handgun directly at her forehead from an inch or two away and told her to 

come outside. He told her “he had killed the two tigers, he killed them there,” and he 

pointed to Nhia’s room. He wanted her to take him home, and said if she did not help 

him, she would see what would happen. He pointed her to the room where the bodies 

were and forced her to go and look at them. 

Xay went to the door of Nhia’s room. Defendant kept the gun pointed at her the 

whole time. She looked inside and saw Nhia on the couch. He appeared to be dead. 

Defendant said there was a second body, but Xay did not see anyone else, as she could 

not see the whole room from just outside the door. Defendant asked Xay if she was 

scared. She told him yes. He seemed very proud of and boastful about what he had 

done. 

Xay walked back toward the French door, while defendant backed up toward the 

fence. He made Xay swear she would help him. He made her raise her hand and swear 

upon the next generations and on the name of her recently deceased father, so that if she 

did not help him, she would be cursed. Defendant said if Xay did not help him, the next 

thousands of generations of Yangs would be cursed.13

Defendant said Xay had to drive him home, because then his family could help 

him. She said she could not do that without her purse and key, which were in her room. 

Defendant kept insisting that she take him home. He seemed in a hurry to get out of 

 

13 Xay explained curses are common in the Hmong culture. If someone does 

something wrong or does not live up to an agreement, the wronged person can put a curse 

on the wrongdoer. Swearing oaths and cursing are taken very seriously. 
10.

there, but refused to exit through the front door or the back gate. He then told her to 

address the tiger that had gotten away. Xay did not see anyone else around. 

Xay kept telling defendant that he had to let her get her purse and key, which were 

in her room, or there was no way she could help him. He finally relented, then told her to 

open the front door so he could run through the house. Xay obeyed, then defendant told 

her to come back toward him and stay in the middle of the living room. He still had the 

gun pointed at her. He then quickly ran through the house and stopped by the passenger 

side of Xay’s vehicle. Xay made it appear she was going toward her room, then ran to 

the front door and closed and locked it.

During the entire incident, which lasted about five minutes, Xay never saw anyone 

but defendant. He never described to her seeing something that was not really there. 

As of July 20, Daniel Garza lived next door to dwelling B. Early that morning, he 

heard “a whole bunch” of gunshots coming from dwelling A. Looking out his front 

window, he saw a man holding some kind of rifle and a reddish blanket exit the front 

door of dwelling A. The person, whom Garza pointed out to the police when they 

arrived, went right across the street to dwelling B. He appeared to be walking normally. 

He stood in the front yard of dwelling B some eight to 10 minutes, until the police 

arrived. At one point, Garza heard him loudly say, “Open the door.” When the police 

arrived, Garza heard the person say to them, “Kill me. Kill me,” or “Shoot me. Shoot 

me.” 

The police received a call about the shooting at 5:25 a.m., from a neighbor who 

reported hearing four to five shots fired. In addition, Lee called 911. He reported he had 

been shot in the mouth and the arm, and he was hiding in the backyard of an abandoned 

house because defendant, whom he named (by nickname) as the shooter, was coming. 

Lee reported there were two other shooting victims still at the house, but he had run away 

and was bleeding to death. Lee said defendant had three guns. 
11.

Multiple officers from the Modesto Police Department and deputies from the 

Stanislaus County Sheriff’s Department responded to dwelling A. Officer Murphy was 

the first on scene, arriving at 5:32 a.m. Upon his arrival, he saw defendant, who matched 

the description of the suspect, standing in front of dwelling B. Defendant “frantically” 

told Murphy that his cousins had tried to kill him. When Murphy asked where they were, 

defendant pointed to dwelling A. 

Officer Wesley arrived a short time later to find Murphy giving commands to 

defendant. Defendant, who was standing in the front yard of dwelling B, a few feet from 

the garage, was wearing nothing but boxer shorts. He was not holding any weapons. He 

came out to the officers as ordered and was placed in handcuffs. He seemed fairly calm, 

considering the circumstances. 

Defendant was placed in the back of a patrol vehicle. Wesley sought to identify 

him, and defendant gave his name and date of birth. Defendant’s answers were 

responsive to each question Wesley asked, and he appeared to be oriented to his current 

location. However, he told Wesley, “Officer, they tried to fucking kill me,” followed 

immediately by something about black magic. He appeared nervous and agitated, 

although he was cooperative. All told, Wesley spent about a minute and a half with 

defendant. Wesley, who had received training in determining whether someone was 

under the influence, did not perform such an evaluation on defendant, and observed 

nothing to suggest defendant was impaired by methamphetamine. 

Meanwhile, Officer Kroutil joined the search team that entered dwelling B based 

on information the suspect had fled to that address and possibly headed into the backyard. 

In clearing the garage, Kroutil discovered a Colt Sporter rifle, the civilian version of an 

M16, partially wrapped in a red towel under the minivan. The rifle had a 30-round 

magazine, meaning the weapon could carry 31 rounds if fully loaded. The weapon was 

empty. A red substance that appeared to be blood was on the barrel and fore end of the 
12.

gun. A loaded Ruger revolver, from which two shots had been fired, was found in 

vegetation next to the door of the garage. 

Kroutil then went back across the street to dwelling A. Inside the structure behind 

the house were a deceased male — Nhia — and female —Gao — both of whom had 

what appeared to be bullet holes and gross trauma from being shot at close range. There 

were shell casings and a live round on the floor. There were a lot of bullet holes in the 

walls, and some in the ceiling. Multiple baggies of methamphetamine were found 

throughout the structure. Also found was a glass pipe used for smoking 

methamphetamine.14 A blood trail exited the structure and led to Lee, who was found

several blocks away. 

Nhia’s autopsy revealed he had nine high-velocity-type gunshot wounds to the 

body, two of which entered from the back.15 The range of fire for most of them was 

intermediate (meaning, assuming the weapon used was a rifle, the tip of the barrel was 

within two to three feet), although one of them, which was to the head and caused 

massive destruction of the skull and brain, was within inches. Nhia also had three blunt 

force injuries to the face that had a circular pattern consistent with a stabbing motion of a 

barrel of a rifle. There were signs the same type of injury occurred to the eye, which was 

collapsed but without signs of circular cuts. Two fairly intact projectiles were recovered 

during the autopsy. One, which was recovered from one of the shots to the back, came 

from the Ruger found in the vegetation outside the garage of dwelling B.

 

14 Two days after the shooting, a gun was found between the mattresses of one of the 

beds in the room. It had after-market grips on it. A search of defendant’s home in 

Winton turned up a photograph of defendant with a weapon in his waistband that 

appeared identical to the one recovered from the bed. Another photograph seized in the 

same search showed defendant with his arm around Gao’s neck. In his hand was a Ruger 

revolver that was consistent with the Ruger recovered the morning of the shooting. 

Defendant appeared to be pointing the gun at the photographer.

15 An AR-15 or M16, which are similar, would be considered high-velocity weapons. 
13.

The cause of death was multiple gunshot wounds. Most of the damage was to 

Nhia’s head and upper abdomen, and most of the wounds were potentially fatal.

Although the sequence of wounds could only be generalized, given the distance, it was 

probable the wounds to the torso were received first, then the one to the head was 

probably the last shot. Death would have occurred within seconds of that shot. 

Gao’s autopsy revealed five high-velocity-type gunshot wounds, two of which 

entered from the back. At least one, which hit the hand and then caused massive 

destruction to the flesh of the face and exited the throat, was a lethal wound. The cause 

of death was multiple gunshot wounds. Death could have occurred in minutes to an hour 

or slightly more. 

Blood was drawn during each autopsy. Nhia’s blood contained methamphetamine 

in a concentration of 1,180 nanograms per milliliter. Gao’s blood contained 

methamphetamine in a concentration of 2,660 nanograms per milliliter. Dr. Carpenter, 

who performed the autopsies, explained that postmortem blood levels are “notorious for 

being inaccurate as to what the level was just prior to death,” because the levels obtained 

from toxicology tests vary depending on the location from which the blood was drawn. 

Blood was drawn from defendant at 10:27 a.m., approximately five hours after the 

shooting.16 It contained methamphetamine in a concentration of 150 nanograms per 

milliliter. Daniel Coleman, a criminalist supervisor with the Department of Justice 

toxicology laboratory who analyzed defendant’s blood, explained that if a person takes a 

drug over a long period of time, his or her tolerance increases and it takes more of the 

drug to produce the same effect. Coleman had run thousands of blood tests to quantify 

 

16 Detective House of the Modesto Police Department was the lead investigator for 

this case. He transported defendant to the hospital to have blood drawn. Although House 

did not specifically evaluate defendant for being under the influence of a controlled 

substance, he believed, based on his training and experience, defendant might be under 

the influence; hence, the blood draw.
14.

the presence of methamphetamine. The highest level he had seen in someone still alive 

was around 2,000 nanograms per milliliter. The typical range for a person who would be 

considered under the influence for purposes of a violation of Health and Safety Code 

section 11550 would be 300 to 700 nanograms per milliliter, although it could be lower

or higher for some individuals. A concentration of 10 to 50 nanograms per milliliter 

would be the therapeutic level, meaning the level at which the drug would be prescribed; 

600 to 5,000 nanograms per milliliter would be the toxic level, meaning there would be 

negative effects; and a concentration of greater than 10,000 nanograms per milliliter 

would be fatal. 

Coleman explained the concentration in defendant’s blood would have been as of 

the time the blood was drawn. Although a number of variables affected how quickly 

drugs were eliminated from a person’s body, the half-life of methamphetamine — the 

amount of time it took to reduce concentration by half — typically was six to 15 hours. 

There was, in essence, a “drug curve” entailing absorption, distribution, metabolism, and 

elimination of the drug, that represented the drug’s concentration. Without information 

concerning where the person was in the process, concentration could not be extrapolated 

back in time to a point before the blood was drawn. If, however, a person consumed 

methamphetamine before being taken into custody, he or she was taken into custody no 

later than 5:33 a.m., his or her blood was drawn at 10:27 a.m., and the person’s 

concentration was 150 nanograms per milliliter, Coleman would expect that person’s 

concentration to be higher at 5:33 a.m. than at 10:27 a.m. How much higher would 

depend on a number of variables. In Coleman’s opinion, it would likely be less than 300 

nanograms per milliliter at 5:30 a.m. Although the person’s concentration could have 

been 2,000 nanograms per milliliter or even higher at some point, it would have been 

earlier than 5:30 a.m. The higher the peak concentration, the longer it would take to get 

down. 
15.

Carpenter placed Gao’s and Nhia’s methamphetamine concentrations in the toxic 

range, which potentially could start as low as 200 nanograms per milliliter. When people 

have methamphetamine levels in the toxic range, they can have “disturbing” side effects. 

These can include insomnia, excessive nervousness, loss of appetite, inability to control 

anger, and anything associated with hyperstimulation. The stimulation is called “fight or 

flight”; the body becomes very vigilant, and in fact more vigilant than desired. At 

extremely high levels, hallucination can be a side effect of methamphetamine ingestion.

Methamphetamine is not normally a hallucinogenic, however.17 Where 

methamphetamine is concerned, tolerance plays a role. If a person is a heavy 

methamphetamine user, his or her tolerance will be higher so it takes more of the 

substance to cause the same effect. Someone taking methamphetamine for the first time 

would be affected by side effects at a lower level than a continuous user of the drug. 

Methamphetamine in a concentration of under 200 nanograms per milliliter would be 

considered in the therapeutic range and was probably not a level likely to cause unwanted

side effects. For a hallucinogenic side effect, the level would likely have to be high in the 

toxic range, although this would depend on the individual. Carpenter explained an 

individual’s behavior cannot be predicted simply from his or her blood level because his 

or her tolerance is not known. He would not expect someone who used 

methamphetamine daily and whose level was 150 nanograms per milliliter to have side 

effects. 

House interviewed defendant beginning shortly after 1:00 that afternoon.18

Defendant was mostly calm, although he became angry on occasion. He was responsive 

 

17 Carpenter explained that “hallucinogenic” means the person develops loss of 

orientation to person, place, time, and situation; and may suffer delusions and visual 

and/or auditory hallucinations. It is a drug-induced psychosis that can occur on rare 

occasions in certain individuals with high levels.

18 Portions of the video recording of the interview were played for the jury.
16.

for the most part, although sometimes he was evasive. House found him calculating and 

able to reason. He appeared to be oriented to time, place, and situation. Early in the 

interview, he expressed knowledge Gao had been shot. Over the course of the interview, 

defendant claimed he was angry about it, but did not appear to be emotionally upset, even 

though he said Gao was “the love of his life” and Nhia was his best friend.19 He also said 

he considered Lee to be a brother.

House talked to defendant about Gao. Defendant said they had been dating 

approximately three to four months and were living together. He said he had been having 

some “bad vibes” from the Yang family about their dating. Defendant said he had known 

the Yangs since he was a young boy. He knew them from “[t]he street” and a gang he 

had been in. Defendant said he was a former member of the Orient LOCS, which had 

disbanded some time earlier.

In terms of his presence at dwelling A prior to the homicide, defendant initially 

said he was forced to go there. Although he was not definitive, he mentioned Nhia, 

Nhia’s uncle, and Lee in that regard. 

Defendant told House he had had sex with Gao the night before and gone to sleep, 

and he had been sleeping before the shooting. House repeatedly talked to defendant 

about the fact there were 17 or more gunshots from an automatic weapon and a .357 in 

that small room. Defendant said he had not heard the shots. He said he did not know 

why. He did say, however, that before going to sleep the night before, he had been 

“[h]ella tired.” 

Defendant said he woke to find Gao and Nhia shot dead. He picked up the guns, 

which he said were an AR-14 or AR-15 and a Ruger .357 revolver, and left the room. He 

said the rifle belonged to a friend of his whose name he could not remember, and the .357 

 

19 House knew Xyeem had told another detective that on the night before the 

homicides, Xyeem overheard defendant asking Gao why she did not love him anymore. 
17.

belonged to Nhia. Defendant never claimed ownership of the guns, and repeatedly 

maintained he did not hear any gunshots.

Defendant related that after he left the room, he wanted to enter the front house to 

wake Xyeem. He encountered Nhia’s sister (whose name he did not know) at the back 

door of the main residence. Defendant said he was “scared to death.” He said Nhia’s 

sister asked him where he thought he was going. Defendant said he was going to his 

cousin’s house across the street. He was unable to tell House the names of those cousins. 

Defendant told the cousins there were “bad people . . . over there” and asked them for 

help. 

At some point, House talked to defendant about Lee and whether he was present 

when defendant woke up. Defendant said Lee was not there. He knew, however, that 

Lee had been shot, even though, to House’s knowledge nobody had told defendant this 

fact. Defendant said he knew prior to the shooting that this event was going to occur. 

Defendant said he counts backwards on his fingers and tends to know things when he 

does that. He also said he prayed to God not to notice “these things,” but that he did see 

ghosts. He said he saw things and people did not believe him when he saw things.

During the course of the interview, which, as was typical of interrogations, 

skipped around, defendant said the .357 and rifle were the property of MOD (an Asian 

gang named Menace of Destruction). Defendant said Lee was a member of MOD and 

had brought the weapons from Winton. Defendant said Lee kept them at defendant’s 

house in Winton. Defendant said Lee had given him the .357 because he did not want 

defendant to feel pressured by Lee or Nhia or two males defendant did not know, but 

whom he identified as Menace of Destruction. Defendant said he began to feel 

threatened by Nhia, Lee, and the two males, because they had the guns, and so he 

accepted the gun. 

Defendant insisted he did not shoot or kill anyone. He related that Xyeem went 

inside the main house to sleep, leaving defendant, Gao, and Nhia in Nhia’s house. Lee 
18.

was also there, along with the two people defendant did not know. He guessed they were 

relatives of Nhia. Defendant said Xyeem was “dead asleep” and did not know anything. 

Defendant had told him a few months earlier that “bad shit[]” was going to happen in the 

back house. Defendant again denied killing anyone. He told House to ask Xyeem or

Lee, as they knew the people’s names. Defendant said he did not know what woke him 

up, but when he woke, he saw Gao lying dead. Asked by House who he thought shot her, 

defendant responded by asking whom House thought shot her, and saying House thought 

it was defendant. When House asked why defendant kept saying that when House had 

never said he thought defendant did it, defendant replied, “I can read right through your 

mind.” Defendant implied Lee and the two unknown males shot Gao and Nhia.20

Defendant told House that when he woke up, Lee and the two other people were 

not there, although he saw people running. He did not know where Lee or the other two 

went, but when he got to his cousin’s house, the gate was not closed.21

Defendant said he took the guns to his cousin’s house across the street. He did not 

know what made him take them over there. His cousins did not want to open the door for 

him and told him to put the gun down. Defendant threw the rifle under the car in the 

garage and the other one on the grass in the front yard outside the garage. His cousins 

still would not open the door, and that was when the police came.

House talked to defendant about him wanting Xay to take him home. According 

to defendant, he told Xay that she needed to take him home. She then swore she would 

take him home. She told him she had nothing to do with hurting him and had no 

intention of hurting him. He said if that were true, why did she not let him go to his 

 

20 Other than defendant’s statement, House had no evidence anyone other than Lee, 

Gao, Xyeem, defendant, and Nhia were in the room that night. 

21 Dwelling B had a driveway gate and possibly one at the side of the house.
19.

cousin’s house? She said no. She told him to put down the guns and he did. Defendant 

told her to call the police. She said Lee was hiding there in a bush. 

At some point during the interview, House informed defendant that Lee had been 

shot and had identified defendant as the shooter. Defendant said this was a lie. He said 

Lee was a member of an opposing gang, but defendant nevertheless had taken him in, and 

tried to mentor him and keep him out of gangs. During this conversation, defendant 

referred to Lee as “a little snitch.” He also said Lee had stolen some money from him, 

and he called Lee an “evil, mother fucker.”

When House told defendant he was looking at two counts of homicide, defendant 

said he did not care. He also said something to the effect that those who had lied about 

him would be punished seven times worse. Also at some point, House mentioned that he 

told defendant two people were shot, and defendant seemed to think House was wrong. 

Defendant replied that five people were shot: Gao, Nhia, Lee, and the two people 

defendant did not know. 

House talked to defendant about his drug use on the night before the homicide. 

Defendant said they had all used methamphetamine that night, and that he had taken “two 

hits.” At first, defendant claimed someone forced him to take the drugs. Then he 

admitted everybody had been smoking methamphetamine that night. When House asked 

if those two hits could have affected defendant to the point he would not know what was 

going on, defendant said no, he just fell asleep. Asked if that was what crystal 

methamphetamine normally did to him, he again said no. 

During the interview, defendant never said he was shooting at demons. When 

House talked to him about tigers, however, defendant said the Yangs were tigers and the 

Xiongs were bears.22 Defendant said that was something that came from his culture and 

family tradition. In the old days, Yangs were called tigers because they would turn into 

 

22 There was a tiger on a door of Nhia’s room. 
20.

tigers. He did not know why Xiongs were called bears. He said it would come back to 

them “seven times worser” because seven was the Yangs’ favorite number. Defendant 

acknowledged he and the Yangs both were Hmong. He said most of the houses had a lot 

of “crazy shit,” like stuff hanging around doors. When House said he had been inside the 

house and there was a lot of cultural stuff with which he was not familiar, defendant 

replied: “Culture stuff is just only one simple thing. That’s it. You don’t have things 

hanging — you know what I mean? But then after — at the same time I ain’t — I’m not 

going to go all that superstitious shit. You know what I mean? I’m just going to go 

about it is what it is.” Asked what superstitious stuff he was talking about, defendant 

replied, “I’m not going to talk about no superstitious stuff because this is real life. This 

ain’t just superstitious.” House asked why, then, he was using the term “tiger” at the 

scene. Defendant explained it was what they called themselves and what they 

represented themselves as.

At no time during the interview did defendant say he saw something that was not 

really there. He showed different emotions, including anger. He changed his story 

during the course of the interview, sometimes adding information and sometimes taking 

information back. He never admitted shooting anyone, and repeatedly denied doing so. 

He denied telling his cousins across the street that he had killed the tigers.

At the end of the interview, defendant said something in a foreign language House 

assumed was Hmong. House asked him what he said, but defendant would not respond. 

Defendant was singing religious songs when House left the room. House looked at the 

video recording later and observed defendant speaking when no one else was present.

Defendant’s Preoffense Conduct

When Lee first met defendant, Lee considered him a “nice gentleman.” Lee’s 

feelings changed two to three weeks before July 20. Lee had been in custody for 

burglary and receiving stolen property. He was outside his house, smoking a cigarette, 

when defendant came over and started smoking with him. Defendant then pulled out a 
21.

revolver, pointed it at Lee’s forehead from an inch or two away, and said he had found 

out Lee was a snitch and did not like snitches. Defendant said Lee was a snitch because 

Lee’s friends were locked up after Lee was. Gao intervened and told defendant to stop. 

She vouched for Lee, whom she said was like her little brother. Defendant then told Lee 

not to contact anybody, and to just associate with defendant. Defendant, who was a drug 

dealer at that time, was concerned Lee might snitch on him. Lee was contacting his 

probation officer as required, and defendant thought he was contacting the police about 

things. 

On another occasion, Lee and his cousins were playing video poker at defendant’s 

house. Defendant was not home at the time. When defendant returned from the store and 

saw everyone sitting there, however, he went straight to his room and grabbed an AR-15 

rifle. He then came into the living room and started pointing it at everyone. He accused 

them of planning to kill him or something. He blamed Lee because the others did not like 

him. 

On yet another occasion about two to three weeks before July 20, defendant 

accused Lee’s cousin, Na, of stealing money from him (defendant). Defendant pulled the 

same revolver he had pointed at Lee, and pointed it at Na’s leg. Defendant pulled the 

trigger five times, but the gun just clicked instead of firing.23 Defendant told Na he was 

lucky. 

Defendant’s Postoffense Conduct24

On May 31, 2010, Deputy Silva was working on the third floor of the Stanislaus 

County Men’s Jail. The third floor was the “max floor.” That day, Silva was escorting 

inmates to and from the shower. He had the door to defendant’s cell halfway open when 

defendant ran out of the cell, carrying a spear that was at least one to two feet long, and 

 

23 Lee did not know whether it was loaded. 

24 This evidence was admitted during the People’s rebuttal case.
22.

headed in the opposite direction from the showers. He ran to a cell several cells from 

where he was housed, stood in front of it, and began jabbing his spear into the cell. 

Inmate Jackson was in the cell at the time. Silva radioed for assistance; once another 

officer arrived and both officers pointed their Tasers at defendant, defendant complied 

with orders to drop the weapon and lie on the ground. When Silva handcuffed defendant, 

he discovered defendant had a sharpened toothbrush attached to his left arm with elastic 

from the waistband of his underwear.

On May 2, 2013, Deputy Maxwell was working on the second floor of the jail, 

where defendant was housed. Maxwell was “conducting showers.” As he opened 

defendant’s cell, defendant ran in the opposite direction from the shower, holding a large 

spear constructed of jail-made paper with a screw at the end. He ran several cells down 

and started repeatedly thrusting it into the cell where inmate Hunter and another inmate 

were housed. 

On July 19, 2013, Deputy Fay was working at the jail. At approximately 2:35 

p.m., Fay was escorting inmate Salgado down the jail tier called “private singles.” When 

Fay and Salgado passed defendant’s cell, defendant reached out and grabbed Salgado by 

the jumpsuit. Almost simultaneously, defendant’s cellmate, inmate Phommahaxay, threw 

a spear out of the cell. Although Fay pulled Salgado away, Salgado sustained a small cut 

to his ear. An administrative hearing was held as a result of the incident. Defendant was 

found guilty of disruptive conduct and interference with staff duties and responsibilities. 

He was found not guilty of battery on an inmate, assault of an inmate, possession of 

weapons, violation of inmate rules, and violation of criminal law.

On August 28, 2013, Deputy Fittje was working on the third floor of the jail. At 

approximately 5:40 that morning, he and his partner on the floor were “conducting 

showers” on the private singles tier. When Fittje let defendant and his cellmate, inmate 

Phommahaxay, out of their cell to walk to the showers, they ran two cells down. 

Defendant was holding a jail-made spear. Defendant threw the spear through the cell 
23.

bars in an attempt to assault inmate Naylor. Fittje and his partner drew their Tasers, 

pointed them at defendant and Phommahaxay, and ordered them back to their cell. The 

two complied.

II

DEFENSE EVIDENCE

Bai Xiong was defendant’s sister. She knew Gao from the time defendant started 

dating her. Bai saw Gao and defendant, who were always together, every day. Bai and 

defendant were very close, and Gao and defendant loved each other a lot. Bai never saw 

them fight. A couple of weeks before the shooting, however, Bai started seeing 

defendant less, perhaps only three times a week. He was using “a lot” of crystal 

methamphetamine and separating himself from family.

A month or so before the shootings, defendant exhibited hallucinatory behavior to 

Bai. He started acting “really crazy” and talking about seeing people and seeing his best 

friend who had passed away. He was scared and always thought someone was after 

him.25

Defendant was once married to a woman named Farm. Their relationship initially 

was a happy one. On one occasion, Bai saw Farm and defendant in a verbal argument 

that escalated to the point that Farm chased defendant with a knife. Defendant ran from 

Farm. The marriage ended in divorce, which “really upset” defendant. 

As of July 20, Lee Moua was living in dwelling B. That morning, he heard the 

window opening. He saw defendant carrying two guns. Moua and defendant talked for a 

little over two minutes. Defendant appeared to be “abnormal.” Defendant told Moua to 

call defendant’s father. He sounded anxious. There was a house cat close to his feet. 

Defendant tapped the cat away with his foot and asked Moua why he was raising tigers. 

 

25 Modesto Police Detective Pouv interviewed Bai in the course of investigating the 

shootings. According to Pouv, Bai told him defendant did not have any issues with 

respect to alcohol or drug abuse or mental instability. 
24.

Defendant did not point the gun at the cat. He did not point the gun at Moua, although he 

made a motion with the gun and was yelling when he was telling Moua to call his father. 

Defendant was not threatening, but rather “like he was abnormal.”

Neng Yee Lee had been a shaman for approximately 40 years, first in Laos and 

then in the United States. He explained that a shaman is someone who helps “litigate” 

problems in the spirit world, i.e., when people get involved with the spirits. There are 

several types of spirits in the spirit world. There are the wild spirits that lived in the wild. 

There are also warrior types of spirits. If people get “tangled” with the warrior types, 

they will have problems and the shaman will have to deal with them. Spirits sometimes 

take animal forms, normally the form of tigers. Tiger spirits will make a family sick, and 

if the shaman does not perform certain rituals, the family could possibly die. These are 

not real tigers, but spirits. If someone does not have a problem, the tiger spirits will be 

peaceful. If someone has a problem, however, they will not be. Shamans and even some 

ordinary people are capable of seeing spirits. Neng Yee Lee himself had seen them in 

Laos. They also exist in the United States. 

Mong Vang considered defendant to be one of his best friends. Vang last saw him 

at defendant’s residence in Winton. Gao, Lee, and Xyeem were also present. They left 

for a party in Modesto, but Vang did not go with them. He was asked to come to the 

party “in a kindly way,” but did not go because he had to pick up his wife from work. 

Vang heard a conversation between Lee and defendant. All defendant asked Lee was, 

“Do you want to go?” It was “a kindly conversation”; everybody was joking. Defendant 

did not pull a gun on Lee. Although Vang had seen defendant holding a rifle once or 

twice and had seen defendant with two different types of guns, he did not see any guns 

that night. 

Dr. Alex Yufik, a board-certified forensic psychologist with a law degree whose 

private practice and employment consisted of assessing, evaluating, and treating 

substance use disorders, including methamphetamine, and who had specific training and 
25.

experience with respect to methamphetamine psychosis, testified as an expert on 

methamphetamine-induced psychosis. He explained that methamphetamine use causes 

hyperalertness, tachycardia, excessive sweating, and a sense of euphoria. Later, 

additional symptoms occur, such as loss of capacity to plan or organize behavior and 

paranoia. 

Yufik explained that addiction is a chronic, progressive, and potentially fatal brain 

disease. Once a person becomes addicted, it becomes a brain disorder, and the 

subsequent behavior is the product of defective brain tissue. Use of methamphetamine 

over a period of time actually changes the user’s brain, and the changes become worse 

with prolonged use. Methamphetamine affects brain chemistry and so causes functional 

impairment. It affects the portion of the brain responsible for executive functioning, i.e., 

planning, judgment, and organization.26 In some cases, the user starts to develop 

psychotic symptoms, meaning he or she loses touch with reality, because 

methamphetamine has “hijacked” the dopamine system. It has rewired the circuitry of 

the brain and changed the neurological dopamine release/reward system. It also causes 

actual structural changes that can be seen on a brain scan. The brain starts to lose its 

ability to process dopamine, meaning the person is no longer able to experience normal 

pleasure. He or she then seeks out the drug, because that is the only way he or she is able 

to experience the dopamine and its reward system. 

Yufik explained that a drug abuser using methamphetamine will experience a 

clinically significant reduction in dopamine, because the relevant part of the brain has 

been damaged. In severe cases, that translates into psychotic behavior, with “psychotic” 

 

26 Yufik gave the example of someone planning a party, which requires planning, 

organization, and deliberation. The person actually has to think about the components —

how much money to budget, how many people to invite, where to hold the event, and the 

like — in order to execute them. A person with an impairment in the prefrontal cortex, 

which is the portion of the brain affected by methamphetamine use, will not be able to 

carry out a complex series of behaviors like that.
26.

meaning the person loses touch with reality. The person may start to develop paranoid 

delusions, believing people are trying to hurt or kill him or her without a basis in reality. 

The person sometimes begins to experience hallucinations, something the person sees, 

but nobody else does. The person may see ghosts, demons, or angels that are not real.27

He or she may also experience auditory hallucinations, i.e., the hearing of voices coming 

from within the person’s own brain. The person cannot distinguish between voices 

coming from the outside and within the brain, and starts to respond to the internal voices. 

These are classic symptoms of methamphetamine-induced psychosis.28

Yufik explained there can be other causes of psychosis, such as schizophrenia, the 

hallmark of which is losing touch with reality. Unlike with schizophrenia, however, once 

a person with methamphetamine-induced psychosis stops using the drug, the psychotic 

symptoms disappear over a period of time, the length of which depends on the individual. 

In the schizophrenic person, the symptoms remain. Thus, there is a correlation between 

methamphetamine and methamphetamine-induced psychosis: If a person has no 

methamphetamine in his or her system, he or she cannot have methamphetamine-induced 

psychosis. 

Yufik testified that sometimes the hallucinations experienced as a result of 

methamphetamine use result in violence, though not always. According to Yufik, there is 

a very complex relationship between the amount of methamphetamine a person ingests 

on a particular occasion and whether that person is going to commit violence. A recent 

 

27 Yufik defined a hallucination as “a distortion in reality where a person sees things 

that aren’t really there.” If a person said there were tigers everywhere and there were, in 

fact, no tigers present, that could be evidence of a hallucination. Similarly, if a person 

said, “You set these tigers upon me,” and there were, in fact, no tigers set upon that 

person, that could be evidence of a hallucination. 

28 Yufik admitted testifying in an earlier case that when speaking of 

methamphetamine, it was more common for the person to interpret reality as threatening, 

as opposed to hallucinating.
27.

study showed there is no statistical significance between how much is ingested and 

whether the person has psychotic symptoms. As for correlation between prolonged use 

of methamphetamine and the development of psychotic symptoms, Yufik explained there 

is some evidence in the research that suggests prolonged use is more likely to result in 

development of psychosis, but not necessarily. A person can have prolonged use but not 

develop psychotic symptoms, because not every brain processes the drugs exactly the 

same and so there is an issue of individual vulnerability. 

Yufik also testified that methamphetamine is correlated with violence. He 

explained the rate of violence is nine times higher in people who use methamphetamine 

than in people who use other drugs. He further explained that when a person takes 

methamphetamine, he or she experiences impulse control problems. Ordinarily, there is a 

kind of barrier that allows a person to decide whether to delay an impulse. When that 

barrier is removed, as it is when methamphetamine is used, the person simply acts on 

impulse, because the control center is impaired. 

Yufik performed a forensic evaluation on defendant. He was asked to determine 

whether defendant had a mental illness or a substance abuse; if so, whether that substance 

abuse was related to methamphetamine; and, if so, what role methamphetamine played in 

his behavior and alleged criminal actions. To this end, Yufik reviewed all the materials 

defense counsel provided, which included police and witness reports, transcripts of the 

witness reports, the autopsy photographs, crime scene photographs, Dr. Sims’s 

psychological report, the autopsy report, the video recording of defendant’s interrogation, 

and defendant’s toxicology report.29 Yufik then met with defendant in jail for five and a 

half hours. During this time, Yufik conducted a clinical interview, which in addition to 

observing defendant’s behavior, involved asking defendant about such things as his 

 

29 Dr. G. Preston Sims, a forensic psychologist, was appointed by the court to 

evaluate whether defendant met the criteria for legal insanity under California law. For 

various reasons not pertinent to this appeal, the evaluation was not ordered until 2013.
28.

background and clinical history. Yufik also conducted forensic testing, which involved 

administering several psychological tests. His evaluation included consideration of 

whether defendant was malingering. Yufik then reviewed the relevant literature. 

Based on all the information available to him, Yufik concluded defendant had 

substance abuse disorder as that diagnosis was given in the Diagnostic and Statistical 

Manual, fifth edition (DSM-V). The criteria were cravings, withdrawal symptoms, and 

continuing to use the substance despite negative consequences. He also concluded, to a 

reasonable degree of psychological certainty, defendant was under the influence at the 

time of the offense.

Yufik explained “malingering” means the person is deliberately trying to fake 

something, usually the existence or absence of a mental illness. There are standardized 

psychological tests to help determine whether someone is malingering, and Yufik 

administered two of them — the Personality Assessment Inventory (PAI) and the Miller 

Forensic Assessment Tool (M-FAST) — to defendant. After administering these tests, 

Yufik formed the opinion defendant was not malingering during Yufik’s psychological 

evaluation of him.30

According to Yufik, methamphetamine-induced psychosis is a symptom of the 

mental illness of methamphetamine abuse. To evaluate someone for methamphetamineinduced psychosis, Yufik looked at the totality of the circumstances to see if the person 

showed symptoms thereof. He also ruled out alternative hypotheses.31 In defendant’s 

 

30 Because there was no indication defendant was fabricating a memory impairment, 

Yufik did not administer the test of memory malingering (TOMM). Yufik also did not 

administer the WASI or MMPI-2 tests, which were not necessarily relevant for 

methamphetamine-induced psychosis.

Yufik explained that the tests for malingering are designed to find a particular 

pathology of a person. Someone could lie to the evaluator and not necessarily be labeled 

a malingerer. 

31 The fact someone claimed to see dead people did not necessarily mean he or she 

was suffering from some type of psychosis. 
29.

case, Yufik also had information defendant had a severe personality disorder independent 

of any methamphetamine psychosis. Impulsiveness, irresponsibility, acting without due 

consideration of others, disrespecting societal customs, and manipulation were traits of 

this personality disorder. 

Based on his psychological evaluation, Yufik concluded, to a reasonable degree of 

psychological certainty, defendant had methamphetamine-induced psychosis during the 

relevant time period surrounding the killings. To some degree, it was the combination of 

the substance abuse disorder and the antisocial personality disorder that created the 

methamphetamine-induced psychosis in defendant’s case. 

DISCUSSION

I

EVIDENTIARY RULINGS

Defendant contends the trial court committed reversible error in three of its 

evidentiary rulings: prohibiting Sims from testifying to his own opinion that defendant 

was not malingering, admitting evidence of defendant’s postoffense bad acts (the jail 

incidents), and admitting evidence of defendant’s preoffense threats and assaults with a 

gun on people other than Gao. We conclude it was error to admit evidence of the 

postoffense jail incidents. Although any error in admitting defendant’s preoffense acts or 

precluding Sims from giving his own opinion on malingering was harmless, admission of 

the postoffense incidents was prejudicial with respect to the jury’s findings of 

premeditation on counts I through III.

A. Background

In anticipation the defense would seek to introduce evidence defendant suffered 

some form of “ ‘diminished actuality’ ” and could not form the specific intent to kill, the 

People moved, in limine, for admission of specific acts of conduct by defendant pursuant

to Evidence Code section 1101, subdivision (b), as impeachment or rebuttal. Although 

the prosecutor did not describe the acts in his written motion, he contended they were 
30.

sufficiently similar to the charged offenses (in that they involved assaultive behavior) so 

as to show intent, and that they were relevant to impeach or rebut defendant’s mental 

state claim.32

At the hearing on the motion, the prosecutor argued defendant had put his mental 

state in issue by his methamphetamine-induced psychosis defense. The prosecutor 

argued the postoffense incidents were “very relevant” to show defendant’s intent, as well 

as absence of mistake; hence, they were admissible under Evidence Code section 1101, 

subdivision (b). Defense counsel responded that if the defense’s argument was that 

defendant was not a violent person except when he took methamphetamine, the incidents 

would be relevant. That was not, however, the defense’s theory of the case. Rather, the 

defense’s theory concerned what was going on in defendant’s mind specifically at the 

time of the charged offenses, with the mental state evidence being offered to show the 

absence of malice and premeditation. Defense counsel also asserted the evidence of the 

jail incidents would be extremely prejudicial, as it showed a propensity to commit 

violence; moreover, it would be cumulative in light of the uncharged preoffense acts 

already admitted by the court. The prosecutor argued the proffered evidence involved the 

same class of crimes as the charged offenses — assaults using weapons — so as to be 

admissible to show intent, and he stated his belief it was “extremely probative.” He 

interpreted the defense as being “[i]t’s the meth that made me do it.” 

The trial court ruled the evidence was admissible. It stated: “I think that the 

violent nature of the acts is relevant to show that the Defendant was not acting simply as 

a result of meth-induced psychosis at that one particular time [i.e., the time of the charged 

offenses].” The court precluded the prosecutor from questioning defendant about the jail 

 

32 The trial court received reports from the jail on the postoffense incidents in 

connection with the hearing on whether defendant should be shackled during trial. 
31.

incidents unless defendant testified he was not a violent person, but gave the prosecutor 

permission to introduce them in rebuttal.33

The prosecutor subsequently cross-examined Yufik about whether, if a person 

were to exhibit violent behavior after an event and no methamphetamine use was 

involved, it would factor into Yufik’s opinion whether the person acted under 

methamphetamine-induced psychosis at the time of the charged offense, or whether such 

conduct was simply part of the individual’s personality. Yufik testified that if a person 

was not abusing methamphetamine at a certain point, then methamphetamine would not 

play a role in the aggression. Asked if having information the person was violent after 

the event would be pertinent to his diagnosis concerning the actual event, Yufik replied it 

would be pertinent only to the extent of the antisocial personality diagnosis. Yufik did 

not think it would change his opinion with respect to the date of the event to learn the 

person made a weapon in jail and attempted to attack people with it on a couple of 

occasions, because there were many people who committed violent crimes that had 

nothing to do with methamphetamine.

Defense counsel later argued the prosecutor had already gotten into the issue of 

the jail incidents in his cross-examination of Yufik, and so the incidents themselves were 

cumulative and more prejudicial than probative. Counsel stated: “Again, I can’t make 

this clear enough. It is not our argument that [defendant] is only violent on 

meth[amphetamine]. If it were, instances of him being violent not on meth would 

absolutely be relevant. [¶] It is our argument that he couldn’t form the requisite, mental 

intent on this specific day with that specific stimuli.” The prosecutor argued the four 

incidents would show absence of mistake or intent, and he made an offer of proof as to 

what the testimony would be as to each. Defense counsel responded that the evidence 

 

33 At the time of the ruling, it was anticipated defendant would testify. Ultimately, 

he did not.
32.

was very relevant to show propensity, but propensity was not a proper basis for 

conviction.

At defense counsel’s request, the court directed the prosecutor to sanitize the 

testimony concerning one of the incidents, so that the jury would not learn it involved the 

throwing of feces, albeit not by defendant. The court ruled the incidents were otherwise 

admissible as being inconsistent with the defense defendant was not able to form intent 

and also to show absence of mistake. Defense counsel clarified that his position was not 

that defendant could not form an intent, but rather that defendant could not form the 

requisite intent on that particular day, and so the postoffense incidents were irrelevant.

The trial court stated it understood, and warned the prosecutor that he was taking a risk 

by introducing the evidence, but declined to change its ruling. 

Just prior to presentation of the testimony concerning the jail incidents, the trial 

court admonished the jury: “Ladies and gentlemen of the jury, you will hear evidence 

that the Defendant committed certain, uncharged offenses. You may consider this 

evidence only in considering whether the Defendant formed the intent to kill on 

July 20th, 2009, and whether the acts on July 20, 2009 were the product of a mistake, but 

you are not to consider this evidence for any other purpose.”34 Testimony was then 

presented concerning the postoffense jail incidents, as summarized in the statement of 

facts, ante.

During the course of its postevidentiary giving of instructions to the jury, the court 

reminded jurors evidence had been admitted during trial for a limited purpose, and they 

could consider that evidence only for that purpose. The court also instructed, specifically 

with respect to the People’s presentation of evidence of uncharged offenses:

“If you decide the Defendant committed the offenses, you may, but are not 

required to consider that evidence for the limited purpose of deciding 

 

34 At some point, defense counsel argued in chambers that a limiting instruction 

could not cure the harm caused by the jury hearing the information.
33.

whether or not the Defendant acted with the intent to kill required for 

murder in this case, or the absence of mistake.

“In evaluating this evidence, consider the similarity, or lack of 

similarity between the uncharged offenses and the charged offenses. Do 

not consider this evidence for any other purpose, except for the limited 

purpose of determining whether the Defendant had the requisite, mental 

intent or absence of mistake at the time of the killing of Gao Her Yang and 

Nhia Yang, and the attempted murder of Lee Pao Yang. Do not conclude 

from this evidence that the Defendant has a bad character or is disposed to 

commit crime.

“If you conclude the Defendant committed the uncharged offenses, 

that conclusion is only one factor to consider, along with all the other 

evidence. It is not sufficient, by itself, to prove that the Defendant is guilty 

of the crimes alleged in this case. The People must still prove every charge 

beyond a reasonable doubt.” 

As previously stated, the jury returned verdicts of premeditated murder on counts I 

and II, and premeditated attempted murder on count III. In so doing, they rejected the 

lesser offenses of second degree murder and involuntary manslaughter as to counts I 

and II, and of unpremeditated attempted murder as to count III. They also necessarily 

found defendant acted with express malice — the specific intent to kill — as to counts I 

through III, although they were also instructed on the concept of implied malice, and that 

they could consider evidence of the defendant’s voluntary intoxication in deciding 

whether he acted with an intent to kill or with deliberation and premeditation. 

Prior to sentencing, defendant moved for a new trial on the ground admission of 

his postoffense conduct deprived him of a fair trial, because it amounted only to 

impermissible propensity evidence, was not relevant, and was more prejudicial than 

probative. The People opposed the motion, essentially reiterating their argument for 

admissibility under Evidence Code section 1101, subdivision (b), and contending, under 

Evidence Code section 352, there was no danger of creating confusion for or misleading 

the jury. The trial court denied the motion.

B. Analysis
34.

“The general framework for the admission of evidence as it relates to 

defendant[’s] challenge[] is as follows. Only relevant evidence is admissible. [Citation.] 

Relevant evidence is broadly defined as that having a ‘tendency in reason to prove or 

disprove any disputed fact that is of consequence’ to resolving the case. [Citation.] 

Inferences drawn from the evidence must be logical and reasonable, not merely 

speculative. [Citations.] All relevant evidence is admissible, unless a specific statutory 

or constitutional provision bars its admission. [Citations.] If evidence is relevant and 

admissible for one purpose, but inadmissible if considered for another purpose, the trial 

court must admit it but, upon request, limit its proper scope and so instruct the jury. 

[Citation.]” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 405.)

Insofar as is pertinent here, subdivision (a) of Evidence Code section 1101 renders 

“evidence of uncharged crimes . . . inadmissible to prove the defendant had the 

propensity or disposition to commit the charged crime[s]. [Citations.]” (People v. 

Hendrix (2013) 214 Cal.App.4th 216, 238; accord, People v. Bryant, Smith and Wheeler, 

supra, 60 Cal.4th at pp. 405-406.)35 The provision “ ‘expressly prohibits the use of an 

uncharged offense if the only theory of relevance is that the accused has a propensity (or 

disposition) to commit the crime charged and that this propensity is circumstantial proof 

that the accused behaved accordingly on the occasion of the charged offense.’ 

[Citation.]” (People v. Bryant, Smith and Wheeler, supra, at p. 406; accord, People v. 

Gonzales (2012) 54 Cal.4th 1234, 1257.)

“Because [Evidence Code] section 1101[, subdivision ](a)’s prohibition against 

propensity evidence is ‘absolute where it applies’ [citation]” (People v. Villatoro (2012) 

 

35 Subdivision (a) of Evidence Code section 1101 states: “Except as provided in this 

section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a 

trait of his or her character (whether in the form of an opinion, evidence of reputation, or 

evidence of specific instances of his or her conduct) is inadmissible when offered to 

prove his or her conduct on a specified occasion.”
35.

54 Cal.4th 1152, 1161-1162), “ ‘[t]he inference of a criminal disposition may not be used 

to establish any link in the chain of logic connecting the uncharged offense with a 

material fact. If no theory or relevancy can be established without this pitfall, the 

evidence of the uncharged offense is simply inadmissible.’ [Citation.]” (People v. Lewis

(2001) 26 Cal.4th 334, 373.) “ ‘The reason for this rule is not that such evidence is never 

relevant; to the contrary, the evidence is excluded because it has too much probative 

value.’ [Citations.] ‘ “The natural and inevitable tendency” ’ is to give excessive weight 

to the prior conduct and either allow it to bear too strongly on the present charge, or to 

take the proof of it as justifying a conviction irrespective of guilt of the present charge. 

[Citations.]” (People v. Hendrix, supra, 214 Cal.App.4th at p. 238.) The purpose of the 

statutory prohibition “is to assure that a defendant is tried upon the crime charged and is 

not tried upon an antisocial history. [Citation.]” (People v. Aeschlimann (1972) 28 

Cal.App.3d 460, 473.)

The prohibition codified in subdivision (a) of Evidence Code section 1101 is 

qualified by subdivision (b) of the statute, which provides: “Nothing in this section 

prohibits the admission of evidence that a person committed a crime, civil wrong, or 

other act when relevant to prove some fact (such as . . . intent, preparation, . . .

knowledge, . . . absence of mistake or accident, . . .) other than his or her disposition to 

commit such an act.”36 “Evidence of uncharged crimes is admissible to prove identity, 

common design or plan, or intent only if the charged and uncharged crimes are 

sufficiently similar to support a rational inference of identity, common design or plan, or 

 

36 Evidence Code section 1101, subdivision (b) evidence is often described as “prior 

offenses,” “prior bad acts,” or “prior misconduct.” In actuality, the conduct admitted 

under the statute “need not have been prosecuted as a crime, nor is a conviction required. 

[Citations.] The conduct may also have occurred after the charged events, so long as the 

other requirements for admissibility are met. [Citation.] Specifically, the uncharged act 

must be relevant to prove a fact at issue [citation], and its admission must not be unduly 

prejudicial, confusing, or time consuming [citation].” (People v. Leon (2015) 61 Cal.4th 

569, 597-598.)
36.

intent. [Citation.] On appeal, the trial court’s determination of this issue, being 

essentially a determination of relevance, is reviewed for abuse of discretion. [Citations.]” 

(People v. Kipp (1998) 18 Cal.4th 349, 369.) “ ‘Action that transgresses the confines of 

the applicable principles of law is outside the scope of discretion and we call such action 

an “abuse” of discretion. [Citation.]’ [Citations.]” (People v. Hendrix, supra, 214 

Cal.App.4th at p. 239.)

In the present case, the prosecutor proffered the evidence concerning the 

postoffense jail incidents as relevant to intent and absence of mistake. However, 

“admission of other crimes evidence cannot be justified merely by asserting an 

admissible purpose.” (People v. Guerrero (1976) 16 Cal.3d 719, 724.) “The question 

remains as to ‘whether the particular evidence of defendant’s other offenses here offered 

is logically relevant to prove the defendant’s intent in this case.’ [Citation.]” (People v. 

Thompson (1980) 27 Cal.3d 303, 319, fn. omitted, disapproved on another ground as 

stated in People v. Rowland (1992) 4 Cal.4th 238, 260.)

The relevance of an uncharged act “depends, in part, on whether the act is 

sufficiently similar to the current charges to support a rational inference of intent, 

common design, identity, or other material fact. [Citation.]” (People v. Leon, supra, 61 

Cal.4th at p. 598.) “The least degree of similarity (between the uncharged act and the 

charged offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence of a 

similar result . . . tends (increasingly with each instance) to negative accident or 

inadvertence or self-defense or good faith or other innocent mental state, and tends to 

establish (provisionally, at least, though not certainly) the presence of the normal, i.e., 

criminal, intent accompanying such an act . . . .’ [Citation.] In order to be admissible to 

prove intent, the uncharged misconduct must be sufficiently similar to support the 
37.

inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.” 

[Citations.]’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)37

Even when the evidence is viewed in the light most favorable to the trial court’s 

ruling, as is appropriate when reviewing the admission of uncharged misconduct under 

Evidence Code section 1101, subdivision (b) (see People v. Carter (2005) 36 Cal.4th 

1114, 1148; People v. Kipp, supra, 18 Cal.4th at p. 370), it is readily apparent that the 

only similarities between the charged offenses and defendant’s misconduct in jail were 

that both sets of acts involved assaultive behavior and the use of some kind of weapon. If 

the fact the charged and uncharged offenses involved the same classes of crimes 

constituted sufficient similarity to render the uncharged offenses admissible on intent, as 

the prosecutor here seems to have believed, uncharged murders would always be 

admissible, at least insofar as Evidence Code section 1101, subdivision (b) was 

concerned, as evidence of a defendant’s intent with respect to a charged murder. Such is 

clearly not the case. (See, e.g., People v. Rogers (2013) 57 Cal.4th 296, 327-328 

[examining common and distinctive features between charged murder and out-of-state 

murders in reviewing trial court’s admission of uncharged murders on element of intent 

as to charged murder].)

The fact defendant engaged in assaultive behavior with a weapon while in jail 

anywhere from 10 months to more than four years after the charged offenses was relevant 

to defendant’s propensity/disposition for violence. Defendant’s intent or absence of 

mistake during the jail incidents was not in issue. The evidence had no tendency in 

reason to prove any fact of consequence concerning the charged offenses other than 

propensity or disposition, or to disprove defendant’s defense.38 Under the circumstances, 

 

37 In terms of the requisite similarity, absence of mistake is analyzed like intent. 

(People v. Burnett (2003) 110 Cal.App.4th 868, 881.)

38 Significantly, Yufik testified — without contradiction — that when a person’s 

psychosis is induced by methamphetamine use, the psychotic symptoms disappear over a 
38.

the evidence of defendant’s postoffense jail misconduct was probative solely of his 

propensity to commit violent acts and/or his violent disposition. The prosecutor’s 

argument for admissibility, which mischaracterized the nature and scope of the defense, 

and trial court’s ruling, that the violent nature of the uncharged acts was relevant to show

defendant was not acting simply as a result of methamphetamine-induced psychosis at the 

time of the charged offenses, underscore this conclusion. In essence, both the prosecutor 

and the court took the position the uncharged misconduct was admissible to show 

defendant was inherently violent. Such use of the evidence was categorically barred by 

Evidence Code section 1101, subdivision (a). (See People v. Douglas (1990) 50 Cal.3d 

468, 510, disapproved on another ground in People v. Marshall (1990) 50 Cal.3d 907, 

933, fn. 4.)39

We turn to the question of prejudice. Not surprisingly, defendant claims the error 

violated his federal constitutional right to due process. 

“To prove a deprivation of federal due process rights, [defendant] must satisfy a 

high constitutional standard to show that the erroneous admission of evidence resulted in 

an unfair trial. ‘Only if there are no permissible inferences the jury may draw from the 

evidence can its admission violate due process. Even then, the evidence must “be of such 

quality as necessarily prevents a fair trial.” [Citations.] Only under such circumstances 

can it be inferred that the jury must have used the evidence for an improper purpose.’ 

[Citation.] ‘The dispositive issue is . . . whether the trial court committed an error which 

rendered the trial “so ‘arbitrary and fundamentally unfair’ that it violated federal due 

 

period of time once the person stops using the drug. There was no evidence defendant 

continued to use methamphetamine while in jail.

39 “Subdivision (a) [of Evidence Code section 1101] does not permit a court to 

balance the probative value of the evidence against its prejudicial effect.” (People v. 

Thompson, supra, 27 Cal.3d at p. 317.) Accordingly, we need not assess the trial court’s 

implied determination the evidence was admissible under Evidence Code section 352. 

(See People v. Thompson, supra, at p. 318.)
39.

process.” [Citation.]’ [Citation.]” (People v. Albarran (2007) 149 Cal.App.4th 214, 

229-230, fn. omitted; accord, Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 

920.)

Prosecutors have no right to overprove their cases or present all the evidence they 

have. (People v. Williams (2009) 170 Cal.App.4th 587, 610.)40 It should have been clear 

the evidence of the jail incidents was relevant only to defendant’s propensity for violence 

and, hence, inadmissible, and the prosecutor should have refrained from proffering it. 

Had the trial court carefully assessed the purpose and prejudicial nature of the evidence 

(see People v. Tran (2011) 51 Cal.4th 1040, 1049; People v. Williams, supra, at pp. 610-

611), we are convinced it would have excluded the postoffense jail incidents.

Nevertheless, we do not believe admission of the evidence rendered the trial as a 

whole fundamentally unfair. The evidence defendant harbored the specific intent to kill 

at the time he shot Gao, Nhia, and Lee was overwhelming. Evidence suggesting the 

contrary was minimal. Particularly in light of the number of shots defendant fired, the 

vital portions of the victims’ bodies that were struck, the fact defendant used multiple 

weapons, and the evidence he had been arguing with Gao immediately before the 

shooting and called Nhia by name during events, admission of defendant’s uncharged 

postoffense misconduct cannot have affected the jury’s finding of express malice, and so 

was harmless even under the beyond-a-reasonable-doubt standard of Chapman v. 

California (1967) 386 U.S. 18, 24 that is applicable to deprivations of due process 

(People v. Malone (1988) 47 Cal.3d 1, 22; compare People v. Rogers (2009) 46 Cal.4th 

1136, 1167-1168 with People v. Albarran, supra, 149 Cal.App.4th at p. 232).

Under the more lenient standard for state-law error of People v. Watson (1956) 46 

Cal.2d 818, 836 (Watson), however, the error was prejudicial with respect to the jury’s 

 

40 A prosecutor’s interest in a criminal prosecution “is not that it shall win a case, but 

that justice shall be done.” (Berger v. United States (1935) 295 U.S. 78, 88; accord, 

People v. Hill (1998) 17 Cal.4th 800, 820.)
40.

findings of premeditation. Under Watson, the erroneous admission of evidence 

constitutes reversible error “if a reasonable probability exists that the jury would have 

reached a different result had [the] evidence been excluded. [Citations.]” (People v. 

Whitson (1998) 17 Cal.4th 229, 251.)

In the present case, evidence was presented concerning the effects of 

methamphetamine that fell short of hallucination. These included inability to control 

anger, hypervigilence, and, significantly, the effect on the portion of the brain responsible 

for executive functioning — planning, judgment, and organization. There was also 

evidence it was more common for a methamphetamine user to interpret reality as 

threatening than to hallucinate. In addition, there was evidence defendant loved Gao and 

was best friends with Nhia, and that defendant was known to point guns at people and 

even pull the trigger without actually shooting anyone. The jury was instructed, in 

accordance with section 29.4, that defendant’s voluntary intoxication could be considered 

with respect to whether defendant acted with an intent to kill or with deliberation and 

premeditation. Defense counsel argued that if jurors believed defendant knew he was 

killing a human being, the most appropriate verdicts would be second degree murder. 

Given the nature and quality of the evidence, we conclude it is reasonably 

probable that, had evidence of the postoffense jail incidents been excluded, at least one 

juror would have failed to find, beyond a reasonable doubt, that defendant premeditated 

and deliberated the shootings of Gao, Nhia, and Lee. As we recognized in People v. 

Soojian (2010) 190 Cal.App.4th 491, 521, for purposes of Watson review, “a hung jury is 

a more favorable result than a guilty verdict.” Accordingly, the findings of premeditation 

and deliberation on counts I through III must be reversed. Because there was substantial 

evidence of premeditation, however, they can be retried.

In concluding reversal is required, we recognize the trial court twice instructed 

jurors concerning the limited purpose for which they could consider the evidence of the 

postoffense jail incidents. The court also instructed jurors they could not use the 
41.

evidence for any other purpose, and could not conclude from it that defendant had a bad 

character or was disposed to commit crime.

We normally presume jurors follow such instructions. (People v. Homick (2012) 

55 Cal.4th 816, 866-867; but see People v. Robinson (2005) 37 Cal.4th 592, 626.) There 

are, however, “times when the evidence is so potent or inflammatory that this 

presumption is overcome.” (People v. Dallas (2008) 165 Cal.App.4th 940, 958.) This is 

one of those times. The prosecutor emphasized the limited purpose for which the 

evidence was admitted, but argued the jail incidents showed defendant knew what he was 

doing. The evidence so powerfully demonstrated defendant’s violent character without 

regard to methamphetamine use, that it would be “the essence of sophistry and lack of 

realism” (People v. Gibson (1976) 56 Cal.App.3d 119, 130) to believe jurors were 

capable of following the limiting instructions and not using the evidence for an improper 

purpose when there was no permissible purpose for which the evidence could have been 

considered (see People v. Hendrix, supra, 214 Cal.App.4th at pp. 247-248; cf. People v. 

Rogers, supra, 57 Cal.4th at pp. 327-328, 332; People v. Homick, supra, 55 Cal.4th at 

pp. 866-867). A finding of premeditation as to each pertinent count was virtually assured 

once the evidence was so considered. Accordingly, the limiting instructions did nothing 

to lessen the prejudice.

In light of our foregoing analysis and conclusion, defendant’s remaining claims of 

evidentiary error do not require extended discussion.

Defendant first contends the trial court committed reversible error by admitting 

evidence of defendant’s prior threats and assaults with a gun on persons other than Gao. 

Those incidents were admitted, for the most part over defense objection on the ground 

they were more prejudicial than probative, to show intent.41

 

41 The trial court excluded the prosecutor’s proffered inclusion of an incident in 

which defendant shot an AR-15 into the air on the Fourth of July.
42.

Gao and Lee both were victims of the charged offenses. Defendant’s prior 

uncharged misconduct toward them thus had probative value with respect to intent, even 

though he did not kill them on any of the prior occasions. (See People v. Linkenauger

(1995) 32 Cal.App.4th 1603, 1612-1614.) In light of this fact and that the testimony 

concerning the prior misconduct was no stronger or more inflammatory than that 

concerning the charged offenses, defendant fails to convince us the trial court abused its 

discretion in admitting the evidence. (See People v. Ewoldt, supra, 7 Cal.4th at p. 405; 

People v. Linkenauger, supra, at p. 1614.)42 Assuming, without deciding, that the trial 

court erred by admitting incidents involving persons in addition to Gao and Lee, we 

conclude the error was harmless, whether considered singly or cumulatively with the 

error in admitting the postoffense misconduct. (See, e.g., People v. Abel (2012) 53 

Cal.4th 891, 936; People v. Pearson (2012) 53 Cal.4th 306, 327; People v. Smith (2005) 

35 Cal.4th 334, 373.)

Defendant also contends the trial court erred by prohibiting Sims from testifying to 

his own opinion that defendant was not malingering. Defendant says the error violated 

his federal constitutional rights to present a defense, to compulsory process, and to due 

process.43

The prosecutor sought to call Sims to testify concerning a conversation Sims had 

with Yufik. Defense counsel sought to ask Sims his opinion concerning whether 

defendant was malingering. The prosecutor opposed the request. An Evidence Code 

 

42 Defendant failed to object to testimony concerning Lee’s desire not to go to the 

party. Given our conclusion, we need not address the Attorney General’s claim of 

forfeiture with respect to this incident.

43 Defendant’s claim of prejudice is premised, in part, on his assertion Sims was a 

prosecution witness and so jurors would have found him more credible than Yufik, the 

defense expert. There is no evidence in the record to support defendant’s proclamation 

jurors are “particularly skeptical” of experts hired by the defense. Law review articles 

and other similar secondary sources cited by appellate counsel in his briefs are not 

adequate substitutes.
43.

section 402 hearing was held, during which Sims testified he administered tests to 

defendant to determine whether defendant was malingering, and concluded defendant 

was not malingering. The trial court ruled Sims could testify to the validity of the tests 

Yufik performed and Yufik’s testing methodology, but not whether he believed defendant 

was malingering, because the issue was whether defendant was malingering when Yufik 

examined him.

Sims subsequently testified before the jury that he had a conversation with Yufik 

about defendant, in which Yufik spoke about Sims’s and Yufik’s expertise in 

methamphetamine-induced psychosis. During this conversation, Sims remarked that he 

(Sims) might have been called to testify in this case if he was an expert in crystal 

methamphetamine abuse, which he was not. Yufik replied, “Well neither am I, really.”44

Sims explained that malingering is a deliberate attempt by a patient or defendant 

to pretend, for the purpose of achieving some kind of gain, that he or she has a particular 

mental disorder when he or she does not. Sims did not “take issue” with the tests Yufik 

administered with respect to malingering, with the caveat that a more comprehensive test 

was available. Sims would not have administered the TOMM in this case, because it was 

irrelevant since the focus here was not memory impairment. Sims agreed someone could 

be a liar without having a psychological diagnosis of malingering.

We conclude that if the trial court erred in precluding Sims from stating his 

opinion defendant was not malingering, the error did not implicate defendant’s federal 

constitutional rights and was harmless under the applicable Watson standard. (See, e.g., 

People v. McNeal (2009) 46 Cal.4th 1183, 1203; People v. Cunningham (2001) 25 

Cal.4th 926, 998-999; cf. Crane v. Kentucky (1986) 476 U.S. 683, 690; Chambers v. 

 

44 Yufik denied saying this to Sims and testified he told Sims he was not an expert in 

methamphetamine research. At trial, Yufik explained he was an applied scientist, not a 

research scientist, and did not conduct research himself. He had, however, read quite a 

lot concerning methamphetamine research. 
44.

Mississippi (1973) 410 U.S. 284, 302-303.) It was clear from Sims’s testimony that 

Yufik administered appropriate tests on the subject (Sims even stated he could understand 

why Yufik may have chosen the M-FAST over the more comprehensive test in the 

interest of time and/or expedience), and nothing in Sims’s testimony suggested he 

disagreed with Yufik’s conclusion on the issue. Moreover, while the prosecutor attacked 

Yufik for failing to administer the TOMM, Sims’s testimony supported Yufik’s decision 

in that regard. None of defendant’s statements to Yufik or to Sims were presented to the 

jury, and Yufik’s diagnosis of methamphetamine-induced psychosis was based to a large 

degree on materials that had nothing to do with whether defendant was malingering at the 

time Yufik examined him several years after the shootings.

Under the circumstances, while it may have been, as defendant says on appeal, 

that “[e]verything depended on [defendant’s] mental defense,” the issue of malingering 

ultimately was not particularly significant, especially in light of the fact Sims never 

testified to a diagnosis of defendant, and both experts agreed someone could lie to them 

and not be diagnosed a malingerer.45 We agree with the Attorney General that at most, 

the addition of Sims’s proffered testimony would have shown defendant “was not 

malingering when both doctors evaluated him for mental disorders about four months 

apart over four years after the offenses. It would not have shown whether he was in a 

methamphetamine-induced psychosis at the time of his offenses. It also would not have 

shown that he did not necessarily lie to the doctors.” 

II

EXCUSAL OF JUROR46

 

45 We reject the notion the error, if any, went to “the heart of the defense.”

46 In this and the following issue, we give a somewhat detailed background to afford 

a true picture of the trial court’s rulings.
45.

Defendant next contends the trial court committed reversible error, as to all counts, 

by excusing Juror No. 10 for illness. We conclude the court acted well within its 

discretion.

A. Background

Trial was conducted Mondays through Thursdays. Prospective jurors were 

informed the trial was anticipated to last until February 11, 2014, although, by the time 

jury selection was completed, the trial court estimated they were about a week ahead of 

schedule. 

On January 7, 2014, the trial jurors, along with three alternates, were sworn, and 

the evidentiary portion of trial began. Two days later, one of the alternate jurors was 

excused. 

On the morning of Thursday, January 16, 2014, the court informed the parties it 

had received a message from the jury commissioner, saying Juror No. 10 could not be 

there that day because of an illness in the juror’s family. The court assumed the situation 

would resolve itself by Tuesday.47 As both counsel expressed a preference for having 

Juror No. 10 remain on the jury so as not to “burn” another alternate so early in the 

proceedings, in addition to which defendant was ill, it was decided the trial would be 

continued until Tuesday, January 21, 2014. The court warned however, that if Juror 

No. 10 had further difficulties the following week, it would excuse her. Defense counsel 

responded, “Absolutely.” 

Near the lunch recess on Wednesday, January 22, 2014, defendant requested that 

new counsel be appointed. Although the court denied the motion, it found it would be a 

miscarriage of justice to proceed with trial that afternoon. Accordingly, jurors were told 

to return Monday, January 27, 2014. On Monday morning, January 27, 2014, defendant 

again requested new counsel. After the hearing, the trial court stated its inclination to 

 

47 Monday was a holiday. 
46.

have the jury return the next day and to start then with defendant’s testimony, so that 

defendant and counsel could have the afternoon to prepare. 

The next morning, Tuesday, January 28, 2014, defendant unsuccessfully attempted 

to challenge the court for cause. After argument on an evidentiary matter, defendant 

unexpectedly announced he had decided not to testify. Defense counsel had no additional 

witnesses available for the day. He had planned to call Yufik after defendant testified, 

and Yufik could not be available for the next two days because of other professional 

commitments. Counsel stated he now needed to reevaluate everything to see if there 

were matters he hoped to present through defendant’s testimony that he could not get in 

through other witnesses. The court rejected the prosecutor’s argument that trial should 

proceed regardless of whether defendant had witnesses or was unable to present a 

defense, and ordered defense counsel to have Yufik present the following Monday 

morning, February 3, 2014, to testify. The court stated it was granting the continuance 

because the proceedings were still within the time frame the jury had been given, and 

Yufik’s testimony had already been “pushed . . . back” from its original schedule. 

Although Yufik testified for virtually the entire day on Monday, February 3, 2014, 

he did not complete his testimony. The next morning, Tuesday, February 4, 2014, the 

court informed counsel that Juror No. 10 “called in this morning. She is sick. 

Apparently has the flu, and cannot be here today. And it’s my thought that with where 

we are, we need to get the trial moving. I don’t know that it’s a one-day illness. A lot of 

people have the flu, laid them up for several days, and I don’t want to lose today, because 

then we lose additional time, perhaps. My thought is we ought to replace her with one of 

our alternates.” 

Defense counsel simply responded, “I object, submitted.” The prosecutor stated 

he had no objection, because it was getting close to the end of trial, the jury had been 

given a date of February 11, 2014, and there were still two alternates left. Asked the 

basis of his objection, defense counsel replied: “Because we picked this jury. I think
47.

that, you know, this trial has been getting on longer and longer. I think there’s no — I 

don’t think there’s any rush. February 10th was what we did [sic], and in our best 

estimate. Sometimes things take longer than we expect. I don’t think there’s any hurry, 

or rush to miss a day or two, whatever the case may be. Today is Tuesday. At most 

maybe missing probably three days. I don’t know it’ll take that long, and I don’t see any 

need to remove her.” 

The court stated it did not know that Juror No. 10 was better or worse for either 

side. It had no notes from jury selection, and no indication the juror was pro-prosecution 

or pro-defense. The court did not see it as an issue of favoring one side or the other, and 

did not believe it would impact either side. It found it more important to get the case 

moving than to keep Juror No. 10, and so it ordered the name drawn of one of the 

remaining alternates to replace her.

The presentation of evidence concluded on the afternoon of Tuesday, February 4, 

2014. The court and counsel spent the next day going over jury instructions outside the 

jury’s presence. The court instructed the jury, and counsel gave their summations, on 

Thursday, February 6, 2014. The jury retired to deliberate at approximately 3:00 that 

afternoon. They returned their verdicts late the next morning. 

B. Analysis

Defendant contends the trial court erred by “precipitously” replacing Juror 

No. 10, who, he claims, “was likely favorably disposed toward [defendant’s] mentalhealth defense.” He suggests the court made its decision without benefit of the relevant 

facts, and acted pursuant to a “blanket rule” it had declared in advance.

Section 1089 provides, in pertinent part: “If at any time, whether before or after 

the final submission of the case to the jury, a juror . . . becomes ill, or upon other good 

cause shown to the court is found to be unable to perform his or her duty, . . . the court 

may order the juror to be discharged and draw the name of an alternate, who shall then 
48.

take a place in the jury box, and be subject to the same rules and regulations as though 

the alternate juror had been selected as one of the original jurors.”

“ ‘Once a trial court is put on notice that good cause to discharge a juror may exist, 

it is the court’s duty “to make whatever inquiry is reasonably necessary” to determine 

whether the juror should be discharged.’ [Citation.]” (People v. Williams (2013) 58 

Cal.4th 197, 292.) “ ‘We review a trial court’s decision to discharge a juror under an 

abuse of discretion standard, and will uphold such decision if the record supports the 

juror’s disqualification as a demonstrable reality.’ [Citation.] ‘The demonstrable reality 

test entails a more comprehensive and less deferential review’ than is typical under the 

abuse of discretion standard. [Citation.] ‘It requires a showing that the court as trier of 

fact did rely on evidence that, in light of the entire record, supports its conclusion . . .’ 

that the juror was unable to perform his or her duties. [Citation.] Although a reviewing 

court will not reweigh the evidence, we ‘must be confident that the trial court’s 

conclusion is manifestly supported by evidence on which the court actually relied.’ 

[Citation.] In reaching that conclusion, we ‘will consider not just the evidence itself, but 

also the record of reasons the court provides.’ [Citation.]” (People v. Debose (2014) 59 

Cal.4th 177, 200-201.) The heightened “ ‘demonstrable reality’ ” standard “ ‘more fully 

reflects an appellate court’s obligation to protect a defendant’s fundamental rights to due 

process and to a fair trial by an unbiased jury.’ ” (People v. Wilson (2008) 44 Cal.4th 

758, 821.)

Applying the foregoing principles to the circumstances of the present case, we 

conclude the trial court did not abuse its discretion by discharging Juror No. 10. “A juror 

may be replaced if ill. [Citations.]” (People v. Roberts (1992) 2 Cal.4th 271, 324.) “In 

cases of illness, a court is not obligated to call a juror into court to substantiate his or her 

excuse and can rely on phone calls instead. [Citation.]” (People v. Duff (2014) 58 

Cal.4th 527, 560, fn. 15.) Indeed, calling the juror into the courtroom often would be 

unreasonable (see People v. Dell (1991) 232 Cal.App.3d 248, 256), and defendant does 
49.

not dispute that Juror No. 10 was, in fact, ill. The trial court did its duty by relaying the 

content of the telephone call to counsel, discussing the matter with them on the record, 

and stating its reasons for determining good cause existed to discharge the ill juror. (See 

People v. Roberts, supra, 2 Cal.4th at p. 325.) “The record supports the juror’s 

disqualification for illness as a demonstrable reality, and no further inquiry was required 

under the circumstances.” (People v. Williams, supra, 58 Cal.4th at p. 293; see, e.g., 

People v. Duff, supra, 58 Cal.4th at pp. 559-561; People v. Smith, supra, 35 Cal.4th at 

pp. 348-349 & cases cited.) “The demonstrable reality test does not demand of trial 

judges confronted with sick jurors that they elicit conclusive proof of the length of future 

incapacitation . . . . Nor does it demand that incapacitation exceed some preset length; in 

the right circumstances, an absence of a day or less may warrant excusal. [Citations.] 

Whether a juror’s illness can best be accommodated by a continuance or replacement 

with an alternate is a matter committed to the trial court’s discretion.” (People v. Duff, 

supra, 58 Cal.4th at pp. 560-561, fn. omitted.)

Defendant argues the court excused Juror No. 10 due to the “blanket rule” it 

declared earlier, when the juror missed a day of trial due to an illness in her family. He 

claims the court’s reference to the juror being replaced if she had “further difficulties” 

“plainly encompassed any further interruption . . . , not just a continuation of the current 

illness in the family.” We do not read the record in such a cynical manner. It is readily 

apparent, from the context of the court’s comments, that it was referring to the action it 

would take if the juror was still experiencing difficulties the following week, when trial 

resumed after the continuance the court was granting due to the juror’s situation. In 

making its decision whether to permit further postponements in trial at the time Juror 

No. 10 herself became ill, the trial court properly could and did take into account the 

trial’s progress to that point, including previous delays. (See People v. Ashmus (1991) 54 

Cal.3d 932, 986-987, abrogated on another ground as stated in People v. Yeoman (2003) 

31 Cal.4th 93, 117.)
50.

In his briefs, defendant makes much of what, in his opinion, the trial court could or 

should have done. It is true the trial court could have taken a different course of action, 

such as waiting to see if Juror No. 10 could return after a couple of days and then hoping 

the juror did not spread her illness to the remaining jurors. Regardless, the fact 

alternative courses of action may have been available does not mean the trial court 

abused its discretion by choosing the course it did. (People v. Smith, supra, 35 Cal.4th at 

p. 349; People v. Bell (1998) 61 Cal.App.4th 282, 288-289.) “[W]hen, as here, a juror 

has good cause to be absent from trial for an indefinite period, the trial court does not 

abuse its discretion in replacing that juror with an alternate juror.” (People v. Smith, 

supra, at p. 349.)

Despite the foregoing, defendant argues the trial court’s action constituted federal 

constitutional error, because Juror No. 10 “likely” was leaning toward the defense. 

Defendant draws this conclusion about the juror because (1) she aspired to employment 

in the field of child development, and (2) she had a “low ‘socioeconomic status.’ ”

48

Defendant’s claim is based on mere surmise. That a prospective juror’s employment as a 

social worker or in a similar field, or his or her socioeconomic status, might permit a 

prosecutor’s exercise of a peremptory challenge against such a person to be deemed race 

neutral for purposes of analysis under Batson v. Kentucky (1986) 476 U.S. 79 and People 

v. Wheeler (1978) 22 Cal.3d 258 (see, e.g., People v. Streeter (2012) 54 Cal.4th 205, 225-

226, disapproved on another ground as stated in People v. Harris (2013) 57 Cal.4th 804, 

834; People v. Cox (2010) 187 Cal.App.4th 337, 347) does not make it likely he or she 

favored one side or the other for purposes of the argument defendant now makes. 

Moreover, that Juror No. 10 likely was not leaning toward one side or the other, despite 

her career aspirations and presumed low socioeconomic status, is suggested by the fact 

 

48 During voir dire, Juror No. 10 stated she was a part-time worker at Kohl’s and 

planned to return to school. Her anticipated area of study was child development. 
51.

the prosecutor did not exercise a peremptory challenge against her. And, significantly, 

neither party disputed the trial court’s statements in regard to the juror not being better or 

worse for either side.

Defendant says the likelihood Juror No. 10 was favorably disposed toward the 

defense explained why defense counsel “strenuously opposed” removing the juror, but 

we find nothing “strenuous” about defense counsel’s opposition.49 Nor is there even a 

hint in the record Juror No. 10’s removal had anything to do with her views on the merits. 

(Cf. U.S. v. Symington (9th Cir. 1999) 195 F.3d 1080, 1088.)

In opposing discharge, defense counsel noted the parties had picked that jury, and 

defendant now claims he was “particularly prejudiced” because the discharge of Juror 

No. 10 and substitution of an alternate juror took place near the end of a long trial. It is 

“commonly known,” he says, that attorneys adapt their presentations to the particular 

jurors in the case. While defendant had a fundamental constitutional right to a fair trial 

by an impartial jury, that right “[did] not entitle him to a jury composed of any particular 

individuals. [Citations.] ‘[W]here an alternate juror, approved by defendant in voir dire, 

is allowed to deliberate on the jury panel, the defendant bears a heavy burden to 

demonstrate that he was somehow harmed thereby.’ [Citation.] This is so because 

alternate jurors are selected at the same time, are subject to the same qualifications and 

take the same oath as regular jurors. They hear the same evidence and are bound by the 

same rules and instructions as the regular jurors, and until the verdict is rendered they are 

at all times available and qualified to participate as regular jurors. [Citations.]” (People 

v. Thomas (1990) 218 Cal.App.3d 1477, 1486; accord, People v. Abbott (1956) 47 Cal.2d 

362, 372.)

 

49 Although, for our purposes, it is enough that defendant objected to the juror’s 

removal, this is another instance in which appellate counsel has, at the very least, 

overstated what the record actually shows. There is a line beyond which proper advocacy 

becomes improper misrepresentation.
52.

Because section 1089 does not offend the United States Constitution, our 

conclusion the trial court did not violate that statute necessarily disposes of defendant’s 

claim of federal constitutional error. (People v. Williams, supra, 58 Cal.4th at p. 293.)

III

DENIAL OF POSTTRIAL MARSDEN MOTION50

Defendant contends he is entitled to a conditional reversal, and remand for a new 

hearing on his request for substitution of appointed counsel pursuant to People v. 

Marsden (1970) 2 Cal.3d 118 (Marsden), because the court restricted its consideration of 

defendant’s posttrial motion to ineffective assistance of counsel, without regard to the 

alternate ground of an irreconcilable breakdown in the attorney-client relationship. 

Defendant says the error also tainted the midtrial Marsden motions.

A. Background

Defendant initially was represented by the public defender’s office. On May 3, 

2010, defendant’s first appearance following his arraignment in superior court, defendant 

moved for new counsel pursuant to Marsden. The motion was denied.51

On September 10, 2010, the deputy public defender assigned to defendant’s case 

declared a possible conflict. On September 16, 2010, the public defender’s office was 

relieved. On September 29, 2010, newly appointed counsel was relieved due to a conflict 

(representation of a victim in the case), and a third attorney was appointed. On 

October 1, 2010, that attorney was relieved due to a conflict. On October 5, 2010, 

Alonzo Gradford was appointed to represent defendant. 

 

50 Unless otherwise stated, all proceedings referenced in this section of our 

discussion were presided over by the trial judge.

51 The reporter’s transcript of this Marsden motion is not contained in the record on 

appeal. Defendant subsequently represented, in his motion to dismiss pursuant to section 

995, that he made a Marsden motion during the preliminary hearing. That motion, which 

was not heard by the trial judge, was denied. 
53.

On June 8, 2012, defendant made an oral Marsden motion as to Gradford. 

Defendant asserted ineffective assistance of counsel in that Gradford was unprepared for 

trial and had not filed motions defendant desired, and was “sabotag[ing]” defendant’s 

life. The trial court’s ruling was set for June 11, 2012. 

On June 11, 2012, defendant submitted a written Marsden motion as to Gradford. 

The trial court treated it as a continuation of the prior Marsden motion. A large part of 

the hearing consisted of defendant and Gradford arguing with one another. The motion

was denied, whereupon defendant spat on Gradford at least twice. At the next court 

appearance, on June 14, 2012, Gradford was relieved as counsel at his own request and 

defense counsel was appointed. 

On January 22, 2014, during presentation of the defense case to the jury, defendant 

made an oral Marsden motion with respect to defense counsel. Defendant stated he did 

not believe counsel was adequately cross-examining the witnesses or refreshing the 

witnesses’ memories about their prior statements. He claimed counsel was not calling 

specific witnesses to testify for the defense, and represented counsel had never talked to 

him about testifying. He also asserted counsel was not arguing about evidence in 

defendant’s favor that the prosecutor was hiding, or the number of interviews of 

defendant without him being read his Miranda rights.52 Defendant also claimed defense 

counsel worked for the school district, where his job was to make sure bad people such as 

drug dealers or gangsters did not interfere; since defendant was a drug dealer and known 

gang member, this created a conflict. Defendant also complained counsel had never 

come and talked to him before or during trial, although counsel had sent his investigator 

to talk to defendant. Defendant said those were the main reasons he felt counsel was not 

representing him correctly, and he noted he had tried to tell counsel various pieces of 

 

52 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
54.

information, but counsel “brush[ed defendant] off.” Defendant then expounded on some 

of these complaints.

At the trial court’s direction, defense counsel responded and explained why he had 

not conducted certain cross-examination or impeached certain witnesses, and why he had 

not called certain people to testify. He also explained why he had not gone into all of the 

circumstances concerning the police interview. With respect to his school board position, 

counsel stated he had stopped taking gang cases for a while because he thought there was 

a direct conflict, but there never was such a conflict in this case, and defendant had 

known about counsel’s school board position for over a year without ever before raising 

the issue. Defense counsel conceded he had not yet had time to talk with defendant about 

testifying, because he had planned to do so over the lunch recess. Counsel stated he still 

wanted to have some time with defendant if given the opportunity. 

Defendant responded by giving examples of why he believed counsel was not 

“doing his job the way he [said] he was.” Defense counsel responded. Defendant then 

reiterated how little counsel had spoken to him about the case, and that counsel never 

really advised him about or prepared him for testifying. He claimed counsel was not 

fighting for him, and that it was because the court was favoring the People and not letting

defense counsel represent defendant the way counsel wanted. 

The court explained to defendant that it had watched both attorneys during trial, 

and that defense counsel had a number of tactical decisions to make, and had to make 

them immediately within the testimony of each witness. The court — having itself been 

a member of a different school board at one point — further explained a school board 

established policy and left it to the administrators to address subjects such as drug dealers 

on campus. The court noted school boards did not want any crime on campuses, but that 

would not prevent defense counsel from representing everyone, and, with respect to 

defendant being a gang member, this was not a gang trial. The court found defense 

counsel had given defendant “good representation from start to finish,” and it explained 
55.

to defendant why defense counsel had decided not to impeach a particular witness. It 

denied the Marsden motion, but decided it would not have defendant testify that day, in 

order to give him time to spend in preparation and discussing other potential witnesses 

with defense counsel. 

Defense counsel warned defendant that what happened with Gradford was not 

going to happen again. Defendant agreed and stated he felt respect and gratitude for 

defense counsel, but simply felt counsel was not representing him effectively.

Trial was continued to the following Monday, January 27, 2014. That morning, 

defendant made another Marsden motion. Before the hearing, defense counsel 

represented he and his staff spent approximately six hours with defendant over the 

weekend, and some of defendant’s complaints about counsel’s performance were 

different than those previously raised. 

Defendant presented a written motion for substitution of counsel in which he 

alleged, by means of checking boxes on a form, that counsel failed and/or refused to 

(1) confer with defendant concerning preparation of the defense, (2) communicate with 

defendant, (3) subpoena witnesses favorable to the defense, (4) perform critical 

investigation, (5) secure and present expert witnesses, (6) prepare and file motions critical 

to the defense, (7) impeach prosecution witnesses, (8) present evidence at motion/writ 

hearings critical to the defense, and (9) declare prejudice and/or conflict against 

defendant, as a result of which defense counsel had taken on the role of a surrogate 

prosecutor. In an attached declaration, defendant asserted counsel was not providing 

adequate representation and, due to conflicts that existed between defendant and counsel, 

defendant could not and would not receive adequate representation. Defendant asserted 

counsel had lied to and misled defendant, particularly with respect to seeking a new judge 

due to the trial court’s bias against defendant arising out of the court witnessing 

defendant’s attack on Gradford. Defendant further asserted he had instructed counsel to 

file a petition for writ of habeas corpus to preclude use of defendant’s prior juvenile 
56.

strike and other adjudications, and to file a section 995 motion to challenge the 

prosecutor’s theory and to “attack” criminal intent and premeditation and gang affiliation. 

Defendant also instructed counsel to file a motion challenging the prosecutor for 

misconduct, bias, racism, and illegal investigations, and challenging court decisions and 

all prejudicial evidence illegally obtained. Defendant complained about defense 

counsel’s refusal to have another expert examine the mental health issues with respect to 

defendant’s insanity plea, and asserted counsel lied to him about the sanity phase of trial 

and by advising him that he would be hurting his defense if he did not withdraw his 

insanity plea. Defendant also asserted defense counsel refused to subpoena witnesses 

favorable to the defense, including defendant’s mother, brother, neighbor, girlfriend’s 

sister, and ex-girlfriend; and refused to subpoena the prosecutor’s witnesses to testify 

upon defendant’s behalf about defendant’s mental state. Defendant asserted counsel 

confused the statements of a witness that was called with statements made by that 

witness’s son, and failed to impeach, thoroughly cross-examine, and refresh the 

memories of prosecution witnesses. Defendant claimed counsel had refused to declare 

“prejudice, bias and conflict” against defendant, and so had taken on the role of a 

surrogate prosecutor against defendant’s interests. Defendant claimed defense counsel 

was rushed into trial by the prosecutor and court, and, because he was busy running for 

school board, had little time to go over discovery and the preliminary hearing transcript

with defendant. Defendant claimed counsel apologized for not filing motions to suppress 

or exclude irrelevant evidence. Defendant concluded his declaration by stating he felt 

there was enough evidence to establish ineffective assistance of counsel, as well as a 

conflict of interest and conflict between defendant and counsel, “to where there is no trust 

nor communication between” defendant and counsel.

At the hearing on his motion, defendant essentially read his written declaration. 

He added that defense counsel had told him he (counsel) was wrong, felt the trial court 
57.

was biased against defendant, and thought they were not supposed to have that trial 

judge.

The court responded it would be surprised if counsel thought that, since in that 

county, once a judge was assigned to a case, he or she stayed with the case to completion 

unless removed for some reason. The court also denied being prejudiced against 

defendant, and noted it had had defendants spit on their attorneys before. The court noted 

defendant had been a gentleman since then, and observed that up until the last couple of 

days, it had thought defendant was getting along fine with defense counsel. The court 

stated it considered defendant “just another Defendant,” and, when defendant claimed 

what happened with Gradford “plant[ed] a little seed in” the court’s mind, the court 

responded, “But it doesn’t affect my rulings.”

Defendant contended defense counsel should have moved to exclude illegally 

obtained evidence, specifically his interrogation, which was done in violation of 

defendant’s Miranda rights, and also the photographs of defendant throwing gang signs 

and holding a gun. Defendant claimed defense counsel had lied about what motions had 

been filed and heard during the afternoon defendant was not present because he was ill.

He also claimed defense counsel had told him there was nothing counsel could really do 

to help defendant. Defendant stated there was no more communication and no more trust 

between him and counsel, and if his Marsden motion was granted, he was going to hire a 

lawyer so he could receive a fair trial and effective assistance of counsel.

Defense counsel responded that he never told defendant he would seek a new trial 

judge. Counsel also represented that he told defendant he did not believe the court was 

biased, in addition to which counsel was aware of no case law that allowed a defendant’s 

own misconduct in court to get that defendant a different judge. Defense counsel denied 

having any discussion about filing habeas actions or motions to strike juvenile 

adjudications, and asserted he was filing motions that were consistent with the rules of 

evidence, counsel’s professional responsibility, and counsel’s years of experience.
58.

Counsel denied lying about the insanity process, and stated what he had told defendant 

and his strategy in that regard. With respect to the witnesses defendant wanted called, 

counsel represented that after the last Marsden hearing, he had contacted all those 

witnesses again and gone over their statements with them. Counsel summarized those 

conversations, his discussion with defendant on the issue, and his strategy and reasons for 

not having the persons testify. Counsel denied mixing up the source of certain statements 

and explained how he knew who had made the statements and why counsel did not 

refresh that person’s recollection. Counsel denied apologizing to defendant for not 

having enough time to represent him due to the school board election; according to 

counsel any such assertion was false. 

As for the interrogation video, counsel represented that defendant told him for the 

first time the day before the current Marsden hearing, that defendant told detectives 

multiple times that he wanted to see his lawyer. Counsel responded that if defendant 

invoked and the interrogation proceeded and counsel missed that, defendant was correct 

that he had been prejudiced by the interrogation coming before the jury. As a result, 

counsel rewatched the video, and determined that at no point did defendant ask for an 

attorney. Counsel also noted that he had sought to exclude the photograph of defendant 

with a gun, but the court ruled it was admissible. Counsel explained that when that 

happened, he accepted the court’s rulings and moved on.

Counsel asserted that he did his best to prepare defendant to testify, but when 

counsel went to see defendant, defendant berated counsel for the bulk of the time. They 

did have a constructive dialogue concerning defendant’s testimony. Counsel stated he 

believed their relationship was “horrible,” and that instead of his first priority being to 

make objections, his first priority now was his own safety. Counsel concluded: “And 

even still, Your Honor, at this stage I don’t believe that the breakdown, if there is any, of 

our trust, or what have you, it’s caused by him, Your Honor. And it doesn’t give him the 
59.

right, from my perspective, to stop this trial. [¶] I have a duty to represent him, and I 

will represent him to the best of my abilities.” 

Defendant responded by accusing defense counsel of lying and by reiterating his 

original claims. The court then questioned defense counsel again about alleged confusion 

between two potential witnesses. After counsel responded, the court observed that 

defendant said communication and trust were broken, and that trust was not an issue in a 

Marsden proceeding, but communication was. It then asked if counsel had talked to 

defendant about testifying that afternoon. Counsel responded that he had; however, 

defendant refused to listen as counsel was giving him advice and, when defendant asked 

if he could just get up and tell his own story, they discussed the possibility of defendant 

representing himself. As long as he was represented, however, counsel made the tactical 

decisions. 

The court stated defendant had not shown grounds for having counsel replaced, 

and that if defendant worked with counsel, defendant would receive a fair trial and 

effective assistance of counsel. After further discussion about defense counsel’s decision 

not to call defendant’s desired witnesses because each of them would “tank” defendant,

the court reiterated that defendant had not made the necessary showing, and so defense 

counsel would continue to represent him and defendant would testify that afternoon. 

Defendant then asked for two or three hours of time with defense counsel to thoroughly 

prepare his testimony. The court gave him the afternoon.

The next morning, counsel — at defendant’s instruction — sought to disqualify 

the trial judge for cause. The defense asserted the court was biased because it had 

witnessed defendant’s behavior toward Gradford, and because its rulings unfairly favored 

the People. The court denied any bias and denied the motion.53 A short time later, 

 

53 The matter subsequently was presented to a judge from another county who was 

sitting by assignment. That judge found defendant’s challenge to be without merit.
60.

defendant announced he had decided not to testify. He explained: “The reason why I 

don’t want to testify is because I feel like there’s prejudicial inside this courtroom, and 

bias inside this courtroom. And I’m not going — and I’m not going to get a fair trial. 

And, due to this courtroom’s decisions that I’m not going to get a fair trial, and also, due 

to ineffective assistance of Counsel and lack of communication, and broken down 

communication, and trust I’m not . . . I refuse to . . . continue on with — with ineffective 

assistance of counsel, due to bad, broken down communication and trust, and due to the 

— due to the prejudicial and bias in this courtroom and this courtroom’s decisions on 

ruling and et cetera.” (Sic.)

Near the conclusion of the defense case, the court again advised defendant of his 

right to testify, and asked if it was still his position that he did not wish to do so. 

Defendant confirmed that decision and that it was based on the court’s perceived 

unfairness and bias, ineffective assistance of counsel, and “broken down communication” 

between defendant and defense counsel.

The jury returned its verdicts on Friday, February 7, 2014. After the jurors were 

released, the court and counsel discussed scheduling of possible motions and sentencing. 

Defense counsel stated that if, after reviewing the transcript of the trial, he did not see the 

basis for a new trial motion, he would notify the court and prosecutor in time to set a 

sentencing date and notify the affected family members. Defendant then requested a 

Marsden hearing. The court set the hearing for the following Monday.

At the Marsden hearing, defendant complained that he did not know how many 

grounds he needed to get the trial court to grant one of his Marsden motions. He noted 

the court had refused to remove Gradford even after Gradford requested that he be 

relieved, and that was when the “incident” took place in the courtroom. Defendant 

asserted that after that incident, the court became even more biased against him.

Defendant noted he had filed two Marsden motions against defense counsel for “lack of 

communication, no communication, broken down trust, ineffective assistance of counsel 
61.

due to very little knowledge about my case” and due to other reasons such as failure to 

file motions, failure to object to statements made by witnesses, and failure to properly 

cross-examine witnesses. Defendant asserted counsel also failed to refresh witnesses’ 

recollection concerning past statements, and failed and refused to call upon witnesses that 

he interviewed and subpoenaed to come and testify. Defendant stated counsel’s excuse 

that their statements were not good for the defense was “total bull crap,” and he asked 

what the point was of interviewing and subpoenaing those witnesses without calling 

them. According to defendant, counsel’s trial strategy was to help the prosecutor convict 

defendant of first degree murder and do very little work on the defense. Defendant also 

asserted counsel failed to address and challenge all motions granted or denied, was 

ineffective and had little knowledge about the case, had had no communication with 

defendant, had no understanding of trial strategy, misled and lied to defendant.

Defendant asserted that despite his raising those issues, the court denied his prior 

Marsden motions. Defendant stated he knew the court did not like him and was 

prejudiced against him, and even had defendant shackled and restrained during trial. 

Nevertheless, defendant asked the court to hear him out and relieve defense counsel. 

Defendant claimed counsel was working as a surrogate prosecutor to obtain a first degree 

murder conviction. As an example, he pointed to the prosecutor asking Yufik when he 

interviewed and tested defendant, and defense counsel refusing to object when Yufik 

replied that he interviewed defendant for five and a half hours at the jail. Defendant 

asserted defense counsel probably coached Yufik to mention defendant was in jail, so as 

to “open up a window” for the prosecutor. In addition, defendant claimed counsel did a 

poor job fighting against admission of the jail incidents, and he accused the court of 

prejudice and bias in admitting the evidence. 

Defendant claimed closing argument proved defense counsel was ineffective. He 

criticized counsel for not arguing about the interview with House, the fact defendant was 

under the influence, or that prior to the interview, defendant did not know Gao, Nhia, and 
62.

Lee were shot. Defendant asserted defense counsel never argued on defendant’s behalf 

or introduced video clips of defendant acting crazy or talking to himself, and never 

showed defendant the entire video of the interrogation. Defendant asserted defense 

counsel stated in argument that Lee had defendant’s gun and was using defendant’s 

phone all night, which was a false statement by counsel and showed counsel’s lack of 

knowledge concerning the case. Defendant claimed defense counsel also lied to the 

jurors by saying defendant did not go anywhere after the killings, when in fact defendant 

went across the street and the jurors knew that. Defendant also criticized counsel for not 

telling jurors defendant’s car was parked outside the house where the shootings occurred, 

and that if defendant had planned the killings and wanted to escape, he would have gotten 

his keys and driven off, but he did not because he was under methamphetamine-induced 

psychosis and did not have the requisite mental state to plan anything nor did he intend to 

kill any human being, but rather was hallucinating and thought he was fighting and 

shooting demons and demon tigers. Defendant claimed counsel did not mention anything 

about methamphetamine-induced psychosis.

Defendant also claimed counsel did not argue the fact Lee never mentioned 

anything prior to trial about Gao and defendant arguing about having sex. Defendant 

stated he told counsel to object, because the prosecutor needed a motive for the killings 

and coached Lee to say that, but defense counsel never argued the point on defendant’s 

behalf. Defendant asserted defense counsel “sold [defendant] out to the jurors” and that 

everything defense counsel had done showed the lack of communication and ineffective 

assistance of counsel and little knowledge about the case. Defendant further claimed 

that, at the end of the trial, defense counsel stated in court that he did not think defendant 

had sufficient grounds for a “retrial” motion. 

Defendant concluded by stating he had the right to effective assistance of counsel. 

He asserted there was no communication between him and defense counsel, and that 

counsel manipulated him and did what he (counsel) wanted. Defendant claimed counsel 
63.

sold him out due to prejudice and bias against defendant because defendant was a 

gangster and drug dealer, and part of counsel’s other job was to keep people like 

defendant out of the community and school districts. Therefore, due to ineffective 

assistance of counsel, no communication, conflict of interest, and conflict with counsel, 

defendant asked for new counsel for “retrial” and appeal motions. 

Defense counsel responded that after the last Marsden hearing, he rewatched the 

interrogation video multiple times, and at no point did defendant ask to have an attorney 

present. Accordingly, there were no grounds for a suppression motion. Counsel pointed 

out he had explained, in the last Marsden hearing, why he did not impeach one of the 

defense witnesses, and how the witnesses defendant wanted called would not have 

benefited the defense. As for lying about filing motions, counsel represented he had 

given defendant copies of all written motions counsel had filed, and had informed him 

about all oral motions made in court and placed on the record later in chambers. Counsel 

denied apologizing to defendant and stated he had nothing to apologize for, as he had 

zealously pursued defendant’s defense. Counsel agreed with defendant that some of the 

court’s rulings — particularly admission of the jail incidents — were prejudicial, but 

counsel tried to put on the best defense he could and preserve the issues in light of the 

rulings. Counsel represented he had specifically talked to Yufik about the court’s rulings 

and limitations, including the issue of jail, then Yufik let slip that he spoke to defendant 

at jail. At that point, counsel felt, “That cat was out of the bag.” As far as the 

interrogation interview, counsel stated he had watched the entire thing and there was 

nothing that would have been helpful to defendant in front of the jury. Counsel 

represented there was an approximately 15-minute segment in which defendant was 

“acting a little strange” and in which defendant appeared to be masturbating. Counsel 

felt that although it showed defendant was “kind of in a different place,” it did nothing to 

help his case because it would have shown the jury that within hours of the death of his 
64.

girlfriend, he spent 10 to 15 minutes “with his hand in his groin.” That was not 

something defense counsel could show to the jury, and he had informed defendant of that. 

As far as closing argument, defense counsel admitted he mistakenly said defendant 

lent his gun to Lee when he meant phone. In context, however, what he meant was clear. 

Defense counsel had attempted to go through the trial testimony step by step, and, as for 

Lee, tried to make the jury see it was unbelievable someone who had a gun pulled on 

them earlier would stay when there was an opportunity to flee. 

Defense counsel represented that he had been open and honest with defendant at 

each stage of the proceedings. He conceded it hurt to hear lies said about him, but, if so 

ordered, he would continue to do everything he could to represent defendant consistent 

with his 15 years of experience as a lawyer and his understanding of the rules of 

professional conduct.

Given the opportunity briefly to respond, defendant accused defense counsel of 

again lying. He “begg[ed]” the court for new counsel for his “motion of retrial or motion 

of appeal,” and stated that all he and defense counsel did was argue, and even in trial, 

there was no communication. 

The court wanted time to think about the matter and do some research on the 

applicable law, and so continued the matter for its ruling. After the continuance, the 

following occurred:

“[THE COURT:] The . . . case is on for ruling on the Marsden 

hearing. Based on my research, including People v. Redd [sic], 183 

Cal.App.4th, 1137, at 1144 and 45, in order for me to substitute new 

counsel at this point, I would need to essentially find that there is a good 

argument that [defense counsel] was ineffective at trial. We’ve been 

through that several times.

“[Defense counsel], the only concerns that have been raised had to 

do with tactical decisions. Those are certainly within the purview of 

[defense counsel]; and I don’t believe he was ineffective, so the Marsden 

will be denied.
65.

“THE DEFENDANT: But how — I mean, [defense counsel], I 

mean, he made false statements, you know, to the jurors. You know what 

I’m saying? He even lied to the jurors and . . . last week he never even 

mentioned anything about him lying to the jurors. You know what I’m 

saying? He never answered that.

“THE COURT: I don’t think he lied to the jurors.

“THE DEFENDANT: No. He told the jurors saying I never left the 

spot of the killing. You know? He said I got arrested at the spot of the 

killing, which it was a false statement.

“THE COURT: That is not enough to relieve him; so he’ll represent 

you for the Motion For New Trial. When it goes on appeal, you’ll have 

new counsel.” 

B. Analysis

Defendant contends he is entitled to a conditional reversal for a new Marsden

hearing, because the trial court restricted its consideration of defendant’s posttrial 

Marsden motion to ineffective assistance of counsel, without regard to the alternate 

grounds of an irreconcilable breakdown in the attorney-client relationship. Additionally, 

he says, this error tainted the two midtrial Marsden motions. The Attorney General 

responds that the trial court impliedly considered and rejected both grounds, so defendant 

is not entitled to a remand and there was no error to taint the midtrial motions. We agree 

with the Attorney General.

“[C]riminal defendants are entitled under the Constitution to the assistance of 

court-appointed counsel if they are unable to employ private counsel. However, the 

decision whether to permit a defendant to discharge his appointed counsel and substitute 

another attorney during the trial is within the discretion of the trial court, and a defendant 

has no absolute right to more than one appointed attorney.” (Marsden, supra, 2 Cal.3d at 

p. 123.)

The applicable rules are settled. “ ‘ “When a defendant seeks to discharge his 

appointed counsel and substitute another attorney, and asserts inadequate representation, 

the trial court must permit the defendant to explain the basis of his contention and to 
66.

relate specific instances of the attorney’s inadequate performance. [Citation.] A 

defendant is entitled to relief if the record clearly shows that the first appointed attorney 

is not providing adequate representation [citation] or that defendant and counsel have 

become embroiled in such an irreconcilable conflict that ineffective representation is 

likely to result.” ’ [Citation.] The decision whether to grant a requested substitution is 

within the discretion of the trial court; appellate courts will not find an abuse of that 

discretion unless the failure to remove appointed counsel and appoint replacement 

counsel would ‘substantially impair’ the defendant’s right to effective assistance of 

counsel. [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 681, italics added, 

disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; 

accord, People v. Taylor (2010) 48 Cal.4th 574, 599; People v. Smith (2003) 30 Cal.4th 

581, 604; Marsden, supra, 2 Cal.3d at p. 123.)

The same standard applies whether the Marsden motion is made preconviction or 

postconviction. (People v. Smith (1993) 6 Cal.4th 684, 694.) “ ‘When, after trial, a 

defendant asks the trial court to appoint new counsel to prepare and present a motion for 

new trial on the ground of ineffective assistance of counsel, the court must conduct a 

hearing to explore the reasons underlying the request. [Citations.] If the claim of 

inadequacy relates to courtroom events that the trial court observed, the court will 

generally be able to resolve the new trial motion without appointing new counsel for the 

defendant. [Citation.] If, on the other hand, the defendant’s claim of inadequacy relates 

to matters that occurred outside the courtroom, and the defendant makes a “colorable 

claim” of inadequacy of counsel, then the trial court may, in its discretion, appoint new 

counsel to assist the defendant in moving for a new trial. [Citations.]’ [Citation.]” (Id. at 

pp. 692-693.) Despite the use of the phrase “colorable claim,” which originated in 

People v. Stewart (1985) 171 Cal.App.3d 388, 396-397 (Stewart), the California Supreme 

Court has made it clear that “[a] defendant has no greater right to substitute counsel at the 
67.

[postconviction] stage than the [preconviction stage].” (People v. Smith, supra, at 

p. 694.)54

In the present case, defendant moved to discharge defense counsel and have new 

counsel appointed to bring a motion for new trial based at least in part, presumably, on 

ineffective assistance of counsel. (See People v. Lucky (1988) 45 Cal.3d 259, 281.) 

Thereafter, the trial court afforded him ample opportunity to explain the reasons for his 

request. (See People v. Vera (2004) 122 Cal.App.4th 970, 979.) Accordingly, we review 

the denial of defendant’s motion for abuse of discretion. (People v. Memro (1995) 11 

Cal.4th 786, 857.) “[D]iscretion is abused whenever the court exceeds the bounds of 

reason, all of the circumstances being considered. [Citations.]” (People v. Giminez 

(1975) 14 Cal.3d 68, 72.)

We conclude the trial court’s ruling was reasonable, both with respect to counsel’s 

purported inadequacies and any irreconcilable conflict between client and counsel. As it 

had in the multiple previous Marsden hearings, the court patiently permitted defendant to 

fully state his claims, seeking clarification and offering explanation where necessary. It 

inquired of defense counsel, who responded point by point, and then solicited defendant’s 

response. “To the extent there was a credibility question between defendant and counsel 

at the hearing, the court was ‘entitled to accept counsel’s explanation.’ [Citation.]” 

(People v. Smith, supra, 6 Cal.4th at p. 696.) “The record makes plain that counsel [was] 

representing defendant diligently and well.” (People v. Memro, supra, 11 Cal.4th at 

p. 857.)

“We do not find Marsden error where complaints of counsel’s inadequacy involve 

tactical disagreements. [Citations.]” (People v. Dickey (2005) 35 Cal.4th 884, 922.) It is 

apparent from the record that defendant’s claims of inadequate representation and 

 

54 Stewart has been disapproved to the extent its language implies a different rule 

than that of Marsden. (People v. Smith, supra, 6 Cal.4th at pp. 694, 696.)
68.

breakdown of the attorney-client relationship had their basis primarily in tactical 

disagreements between defendant and counsel. “ ‘ “[T]actical disagreements between the 

defendant and his attorney do not . . . constitute an ‘irreconcilable conflict’ ” ’ unless they 

portend a complete breakdown in the attorney-client relationship. [Citations.]” (People 

v. Clark (2011) 52 Cal.4th 856, 912.)

We recognize defendant purported not to trust counsel. This did not compel the 

court to appoint new counsel, however, as the California Supreme Court has stated, “If a 

defendant’s claimed lack of trust in, or inability to get along with, an appointed attorney 

were sufficient to compel appointment of substitute counsel, defendants effectively 

would have a veto power over any appointment, and by a process of elimination could 

obtain appointment of their preferred attorneys, which is certainly not the law. 

[Citations.]” (People v. Jones (2003) 29 Cal.4th 1229, 1246.)

Moreover, “ ‘[a] trial court is not required to conclude that an irreconcilable

conflict exists if the defendant has not made a sustained good faith effort to work out any 

disagreements with counsel . . . .’ [Citation.]” (People v. Clark, supra, 52 Cal.4th at 

p. 913.) In light of the procedural history of this case with respect to defendant’s 

Marsden motions, which we have set out at length — particularly the motions’ number 

and timing, and defendant’s inclusion of assertions that demonstrably either were untrue 

or involved a decided skewing of the facts — the trial court reasonably could conclude 

replacement of counsel was not required because any breakdown in the attorney-client 

relationship that had occurred was due to defendant’s own attitude and refusal to 

cooperate. (People v. Clark, supra, at p. 913; People v. Taylor, supra, 48 Cal.4th at 

p. 600; see People v. Smith, supra, 30 Cal.4th at p. 607.) “[A] defendant may not force 

the substitution of counsel by his own conduct that manufactures a conflict. [Citation.]” 

(People v. Smith, supra, 6 Cal.4th at pp. 696-697.)

“ ‘When a defendant chooses to be represented by professional counsel, that 

counsel is “captain of the ship” and can make all but a few fundamental decisions for the 
69.

defendant.’ [Citation.]” (People v. Welch (1999) 20 Cal.4th 701, 729.) Counsel “need 

not do everything the defendant may personally desire, no matter how unmeritorious or 

possibly even harmful to the overall defense. Competent counsel is not required to make 

all conceivable motions or to leave an exhaustive paper trail for the sake of the record. 

Rather, competent counsel should realistically examine the case, the evidence, and the 

issues, and pursue those avenues of defense that, to their best and reasonable professional 

judgment, seem appropriate under the circumstances. [Citation.]” (People v. Freeman

(1994) 8 Cal.4th 450, 509.)

Defense counsel did so here. Clearly, however, defendant wanted to be “captain 

of the ship” without representing himself. He sought to manipulate and control both his 

attorney and the proceedings, and moved to substitute his attorney or disqualify the trial 

judge when things did not go his way. He was capable of cooperating with counsel, but 

made the choice not to do so, and the trial court was well aware of this. The court did 

everything it could to ease defendant’s dissatisfaction, distrust, and concern short of 

appointing yet another attorney to represent defendant. In light of the number of 

attorneys with whom defendant had expressed dissatisfaction — violently on at least one 

occasion — over the course of proceedings, the trial court reasonably could conclude no

attorney would have sufficed to cure the problem. (Cf. Brown v. Craven (9th Cir. 1970) 

424 F.2d 1166, 1169-1170.) The trial court was not required to countenance defendant’s 

attempted manipulation of the court system, and neither are we. (See People v. Trujillo

(1984) 154 Cal.App.3d 1077, 1087; People v. Hill (1983) 148 Cal.App.3d 744, 762.)

Defendant contends, however, that the trial court never considered whether 

substitution of counsel should be granted due to an irreconcilable breakdown in the 

attorney-client relationship, but rather restricted its consideration of defendant’s motion 

to ineffective assistance of counsel. (See U.S. v. Adelzo-Gonzalez (9th Cir. 2001) 268 

F.3d 772, 777-779.) We disagree.
70.

“ ‘It is a basic presumption indulged in by reviewing courts that the trial court is 

presumed to have known and applied the correct statutory and case law in the exercise of 

its official duties. [Citations.]’ [Citation.]” (People v. Nance (1991) 1 Cal.App.4th 

1453, 1456; accord, Ross v. Superior Court (1977) 19 Cal.3d 899, 913.) “ ‘ “A judgment 

or order of the lower court is presumed correct. All intendments and presumptions are 

indulged to support it on matters as to which the record is silent, and error must be 

affirmatively shown. . . .” ’ [Citation.]” (People v. Wiley (1995) 9 Cal.4th 580, 592, 

fn. 7; accord, People v. Carpenter (1999) 21 Cal.4th 1016, 1046.)

Defendant’s arguments to the contrary notwithstanding, we find these 

presumptions unrebutted. First, the trial court had shown, in a prior Marsden hearing, 

that it was well aware an irreconcilable breakdown in the attorney-client relationship 

constituted grounds for substituting counsel.

Second, the trial court cited People v. Reed (2010) 183 Cal.App.4th 1137, 1144-

1145 (Reed), the pertinent portion of which states:

“On this point, the Stewart court stated: ‘[I]n hearing a motion for 

new trial based on incompetence of trial counsel, the trial court must 

initially elicit and fully consider the defendant’s reasons for believing he 

was ineffectively assisted at trial. In so doing, the court must make such 

inquiries of the defendant and trial counsel as in the circumstances appear 

pertinent. If the claim is based upon acts or omissions that occurred at trial 

or the effect of which may be evaluated by what occurred at trial the court 

may rule on the motion for new trial without substituting new counsel. If, 

on the other hand, the claim of incompetence relates to acts or omissions 

that did not occur at trial and cannot fairly be evaluated by what occurred at 

trial, then, unless for other good and sufficient reason the court thereupon 

grants a new trial, the court must determine whether to substitute new 

counsel to develop the claim of incompetence. New counsel must be 

appointed when the defendant presents a colorable claim that he was 

ineffectively represented at trial; that is, if he credibly establishes to the 

satisfaction of the court the possibility that trial counsel failed to perform 

with reasonable diligence and that, as a result, a determination more 

favorable to the defendant might have resulted in the absence of counsel’s 

failings.’ (Stewart, supra, 171 Cal.App.3d at pp. 396-397.) The trial court 
71.

here made no inquiry at all. That lack of inquiry constitutes reversible 

error.” (Fn. omitted.)

In a footnote immediately following the Stewart quotation, Reed states: “In 

[People v.] Smith[, supra, 6 Cal.4th 684], the Supreme Court clarified that the ‘colorable 

claim’ and ‘possibility’ language in Stewart does not create a lesser postconviction 

standard for substitution of counsel. The Supreme Court held ‘that the standard 

expressed in Marsden and its progeny applies equally preconviction and postconviction.’ 

([People v.] Smith, supra, 6 Cal.4th at pp. 693-694.) ‘[S]ubstitute counsel should be 

appointed when, and only when, necessary under the Marsden standard, that is whenever, 

in the exercise of its discretion, the court finds that the defendant has shown that a failure 

to replace the appointed attorney would substantially impair the right to assistance of 

counsel [citation], or, stated slightly differently, if the record shows that the first 

appointed attorney is not providing adequate representation or that the defendant and the 

attorney have become embroiled in such an irreconcilable conflict that ineffective 

representation is likely to result [citation]. This is true whenever the motion for substitute 

counsel is made.’ (Id. at p. 696.)” (Reed, supra, 183 Cal.App.4th at p. 1145, fn. 14.)

It would be speculative to assume the trial court did not read and consider this 

footnote. That the court did not expressly refer to it does not change this fact; the 

footnote fell within the portion of the opinion specifically cited by the court and dealt 

with precisely the issue the court was researching. Even if, as defendant now claims, “[i]t 

is hardly uncommon for a lower court . . . to misinterpret or entirely overlook a footnote 

in an opinion,” that other courts may have done so from time to time does not establish 

this trial court did so on this occasion.

Third, defendant was seeking new counsel to bring a new trial motion based on 

ineffective assistance of trial counsel. Thus, the court’s statement it would “need to 

essentially find that there is a good argument that [counsel] was ineffective at trial” 

(italics added) is neither an incorrect statement of the law, nor does it rule out the court’s 
72.

consideration of an irreconcilable breakdown as part of its assessment of the issue. As 

stated ante, the California Supreme Court has decreed the irreconcilable conflict must be 

such “ ‘ “that ineffective representation is likely to result.” ’ [Citation.]” (People v. 

Roldan, supra, 35 Cal.4th at p. 681; accord, People v. Taylor, supra, 48 Cal.4th at p. 599; 

People v. Smith, supra, 30 Cal.4th at p. 604.) Thus, the ground of an irreconcilable 

breakdown in the attorney-client relationship is not wholly divorced from the ground of 

ineffective assistance of counsel, particularly when the issue is raised postconviction.

Defendant could be very volatile, and was not above using physical aggression to 

get his way. The trial court was well aware of this. While it may have been preferable 

for it to rule expressly on both the ineffective assistance of counsel and the irreconcilable 

conflict grounds for substitution of counsel, we cannot fault it, under the circumstances, 

of choosing not to anger defendant further by accusing him directly of manipulation or 

expressly placing on him the responsibility for his conflict with defense counsel.

We reject defendant’s claim the trial court erred by failing to consider the 

irreconcilable breakdown basis for a substitution of counsel. The record shows the court 

was aware of that ground, and does not refute the conclusion the court implicitly 

considered and rejected it.

IV

COUNT IV

The complaint filed against defendant on July 22, 2009, did not contain a charge in 

which Xay was alleged as the victim. After Xay testified at the preliminary hearing and 

recounted the incident in which defendant pointed a handgun at her immediately 

following the shootings, however, the People filed an information that added count IV, an 

assault charge with respect to Xay. In both the original and first amended informations 

(both of which were signed by the trial prosecutor), the cover sheet (which gave the code 

sections for the charges and enhancements) described this count as assault with a deadly 
73.

weapon in violation of section 245, subdivision (a)(1), with an enhancement pursuant to 

section 12022.5, subdivision (a). In the body of both informations, this count read:

“COUNT IV: The said TOU VANG XIONG on or about the 20th 

day of July, 2009, at and in the County of Stanislaus, State of California, 

and prior to the filing of this Information, did willfully, unlawfully, and 

feloniously commit an assault with a deadly weapon, to wit, GUN, upon 

XAY YANG, a human being.

“ENHANCEMENT: During the commission of the above said 

offense, defendant personally used a firearm, in violation of section 

12022.5(a) of the California Penal Code.”55

At the time the charged offenses were committed, section 245 provided, in 

pertinent part:

“(a)(1) Any person who commits an assault upon the person of 

another with a deadly weapon or instrument other than a firearm or by any 

means of force likely to produce great bodily injury shall be punished by 

imprisonment in the state prison for two, three, or four years . . . .

“(2) Any person who commits an assault upon the person of another 

with a firearm shall be punished by imprisonment in the state prison for 

two, three, or four years . . . .” (Italics added.)

Defendant contends that by referencing subdivision (a)(1) of section 245, count IV 

of the information charged him with assault with a deadly weapon other than a firearm.

56

 

He says his conviction on this count must now be reversed, because there was no 

substantial evidence he used a weapon other than a firearm. To allow the conviction to 

stand, he says, would permit him to be convicted of a charge on which he was never tried. 

The Attorney General perceives the error as a clerical one, and argues we should amend 

 

55 Because the information and first amended information are the same in this regard, 

we refer to them both as “the information.”

56 Assault with a deadly weapon other than a firearm and assault with a firearm have 

been proscribed by different subdivisions of section 245 since 1982. (§ 245, as amended 

by Stats. 1982, ch. 136, § 1, p. 437, eff. Mar. 26, 1982, operative Apr. 25, 1982; see 

Historical and Statutory Notes, 47F West’s Ann. Pen. Code (2014 ed.) foll. § 245, 

p. 182.)
74.

the conviction to assault with a firearm under subdivision (a)(2) of section 245. We 

conclude defendant is not entitled to reversal of his conviction.

Defendant’s basic legal proposition is correct: “A person cannot be convicted of 

an offense, not charged against him in the indictment or information, whether or not there 

was evidence at trial to show that he committed the offense. [Citation.]” (People v. 

Puckett (1975) 44 Cal.App.3d 607, 611; see Cole v. Arkansas (1948) 333 U.S. 196, 201 

[“It is as much a violation of due process to send an accused to prison following 

conviction of a charge on which he was never tried as it would be to convict him upon a 

charge that was never made.”].)

From there, however, defendant’s argument flounders, because it proceeds from 

the proposition assault with a deadly weapon (§ 245, subd. (a)(1)) and assault with a 

firearm (id., subd. (a)(2)) are “mutually exclusive” and “two separate crimes.” The 

California Supreme Court rebuffed this argument in People v. Milward (2011) 52 Cal.4th 

580, 584, 585. Although the court declined to decide whether the offenses should be 

considered as constituting a single crime — aggravated assault — for determining the 

lesser included offenses of the crime of aggravated assault by a life prisoner (id. at p. 586; 

see § 4500), it noted that prior to the 1982 amendments to section 245, the Legislature 

made no distinction between aggravated assaults committed with firearms and those 

committed by other means. In amending section 245, subdivision (a) to create 

subparagraphs (1) and (2), “the Legislature’s apparent purpose was to require a minimum

punishment of six months’ imprisonment in county jail for aggravated assaults committed 

with a firearm (§ 245, subd. (a)(2)), but not for aggravated assaults committed by other 

means (§ 245, subd. (a)(1)).” (People v. Milward, supra, at p. 585.) Significant for our 

purposes is the high court’s observation that “the statutory phrase ‘other than a firearm’ is 

not an element of section 245’s subdivision (a)(1), which punishes an assault with a 

deadly weapon ‘other than a firearm’ or by means likely to inflict great bodily injury; a 
75.

defendant who commits an assault with a firearm violates that subdivision.” (Id. at 

p. 587, original italics omitted, italics added.)

In People v. Maldonado (2005) 134 Cal.App.4th 627, the issue before the 

appellate court was whether assault with a firearm was a predicate offense, under section 

186.22, subdivision (e), for the gang enhancement (id., subd. (b)(1)). In this regard, 

subdivision (e)(1) of section 186.22 listed, as a predicate offense, assault with a deadly 

weapon or by means of force likely to produce great bodily injury, “as defined in Section 

245.” The court concluded assault with a firearm fell within the purview of section 

186.22, subdivision (e)(1), noting “[s]ection 245 treats assault with a firearm as an 

aggravated subset of assault with a deadly weapon.” (People v. Maldonado, supra, at 

p. 634.) As a result, the court concluded, “[I]n the scheme of section 245, assaults with a 

firearm are treated as an especially dangerous type of assault with a deadly weapon, 

entitled to greater punishment. Hence, section 186.22, subdivision (e)(1), which includes

‘assault with a deadly weapon . . . as defined in Section 245,’ necessarily encompasses 

assault with a firearm under section 245, subdivision (a)(2). In other words, ‘as defined 

in Section 245,’ assault with a deadly weapon broadly covers the subset of assault with a 

firearm.” (Id. at p. 635, fn. omitted; see People v. Myers (2007) 148 Cal.App.4th 546, 

554 [guilty plea in Arizona to charge of assaulting victim with deadly weapon or 

dangerous instrument, to wit, handgun, satisfies elements of assault with firearm under 

§ 245, subd. (a)(2)].)

There is some support for the notion the two subparagraphs of section 245, 

subdivision (a) state distinct crimes. (See People v. Gonzalez (2014) 60 Cal.4th 533, 535 

[oral copulation of unconscious person (§ 288a, subd. (f)) and oral copulation of 

intoxicated person (id., subd. (i)) constitute different offenses]; People v. Aguilar (1997) 

16 Cal.4th 1023, 1033 [if weapon clause of § 245, subd. (a)(1) included assault with 

firearm, § 245, subd. (a)(2) would be rendered “a redundancy, a result [courts] strive to 

avoid under recognized canons of construction”]; but see People v. Moore (1986) 178 
76.

Cal.App.3d 898, 903-904 [prosecution not precluded, by more specific provisions of 

§ 245, subd. (a)(2), from charging assault with firearm under § 245, subd. (a)(1) if it so 

elects], disapproved on another ground in People v. Ledesma (1997) 16 Cal.4th 90, 101, 

fn. 5.) Even if we were to so conclude, however, we would reject defendant’s claim his 

conviction on count IV must be reversed.

The information in the present case charged defendant with “willfully, unlawfully, 

and feloniously commit[ting] an assault with a deadly weapon, to wit, GUN,” on Xay. It 

was only the caption of the pleading, which summarized the charges, that mentioned 

subdivision (a)(1) of section 245. 

“Notice of the specific charge against a defendant is the constitutional right of the 

accused. [Citation.] The defendant is entitled to be apprised with reasonable certainty of 

the nature of the crime charged so that he may prepare his defense and plead jeopardy in 

future prosecutions. [Citation.]” (People v. Puckett, supra, 44 Cal.App.3d at p. 611; 

accord, Cole v. Arkansas, supra, 333 U.S. at p. 201.) Nevertheless, “[a]n information is 

formally sufficient if, in substance, it charges the defendant with the commission of a 

public offense in words ‘sufficient to give the accused notice of the offense of which he is 

accused.’ [Citation.] To be material, a variance between the information and proof must 

be ‘of such a substantive character as to mislead the accused in preparing his defense, or 

. . . likely to place him in second jeopardy for the same offense.’ [Citations.]” (People v. 

Braddock (1953) 41 Cal.2d 794, 799.) “[A] valid accusatory pleading need not specify 

by number the statute under which the accused is being charged. [Citations.]” (People v. 

Thomas (1987) 43 Cal.3d 818, 826.) Even a reference to the wrong statute may be 

viewed as surplusage and of no consequence. (Ibid.; People v. Schueren (1973) 10 

Cal.3d 553, 558; People v. Reddick (1959) 176 Cal.App.2d 806, 820; see People v. 

Jackson (1961) 191 Cal.App.2d 296, 302-303.)

Defendant was on notice he was being charged with assault with a deadly weapon, 

to wit, a gun, and, by virtue of the section 12022.5, subdivision (a) enhancement 
77.

allegation, that he had to be prepared to defend against the prosecution’s theory he 

personally used a firearm during the assault. Assault with a deadly weapon where the 

weapon is a gun and assault with a firearm have the same elements. (Compare People v. 

Cook (2001) 91 Cal.App.4th 910, 920 with People v. Elwell (1988) 206 Cal.App.3d 171, 

177 & People v. Roshid (1961) 191 Cal.App.2d 692, 693.) “A gun capable of being fired 

is a deadly weapon. [Citation.]” (People v. Roshid, supra, at p. 694; accord, People v. 

Sandoval (1963) 222 Cal.App.2d 348, 351.) “Defendant did not demur to the 

information as he might have done if he believed that this language failed to state the 

offense adequately to give him notice. [Citations.] The well-established rule is that 

failure to demur on the ground that a charging allegation is not sufficiently definite 

waives any objection to the sufficiency of the information. [Citations.]” (People v. Holt

(1997) 15 Cal.4th 619, 672.)

Defendant would have us believe he was misled to his detriment by being placed 

on notice “not that he would be tried for assault with a firearm, but rather that he would 

be tried for assault by means of force likely to produce great bodily injury, using a 

firearm as the instrument of the potential great bodily injury.” Such an interpretation of 

the charging language strains credulity, and we will not countenance it. It is an 

“established rule” that “ ‘[n]otice of the particular circumstances of the offense is given 

not by detailed pleading but by the transcript of the evidence before the committing 

magistrate . . . .’ [Citations.]” (People v. Holt, supra, 15 Cal.4th at p. 672.) As 

previously described, Xay testified at the preliminary hearing to the conduct giving rise to 

count IV. Under the circumstances, “[a]ssuming the information was ambiguous, 

defendant could not have been misled. The preliminary hearing evidence gave defendant 

ample notice of the charge against which he was required to defend. [Citation.]” (People 
78.

v. Price (1991) 1 Cal.4th 324, 398; accord, People v. Griggs (1989) 216 Cal.App.3d 734, 

743; see People v. Peyton (2009) 176 Cal.App.4th 642, 659.)57

Here, the information charged defendant with assaulting Xay with a gun. The 

undisputed evidence showed an assault with a firearm on Xay. Defendant’s defense to 

that charge was the same as with respect to the other charges, and the record suggests no 

way in which a different defense could have been proffered in that regard. The jury was 

instructed on the law consistent with assault with a firearm and on all elements of that 

offense pursuant to CALCRIM No. 875, the prosecutor argued defendant assaulted Xay 

with a firearm, and the jury expressly found defendant guilty of assault with a deadly 

weapon “as charged in Count IV of the information” and that he personally used a 

firearm during the commission of that offense. 

“When a jury finds guilt after being instructed on all elements of the charged 

crime . . . , the jury has made all the findings that due process requires. If a jury 

instruction requires the jury to find guilt on the elements of the charged crime, a 

defendant will have had a ‘meaningful opportunity to defend’ against the charge. 

[Citation.]” (Musacchio v. United States (2016) 577 U.S. ___ [136 S.Ct. 709, 715].)

“ ‘ “ ‘A verdict is to be given a reasonable intendment and be construed in light of 

the issues submitted to the jury and the instructions of the court.’ [Citations.]” 

[Citations.] “The form of a verdict is immaterial provided the intention to convict of the 

crime charged is unmistakably expressed. [Citation.]” [Citation.] “[T]echnical defects 

in a verdict may be disregarded if the jury’s intent to convict of a specified offense within 

the charges is unmistakably clear, and the accused’s substantial rights suffered no 

prejudice. [Citations.]” [Citation.]’ [Citations.]” (People v. Jones (2014) 230 

Cal.App.4th 373, 378-379.)

 

57 People v. Mancebo (2002) 27 Cal.4th 735, 739, 749, on which defendant relies, 

deals with a completely different subject — the pleading and proof requirements of the 

One Strike law — and so does not assist him.
79.

Here, defendant was charged with assaulting Xay with a firearm. The jury’s intent 

to convict of that crime was clear. Defendant’s substantial rights suffered no prejudice 

from the designation of subdivision (a)(1) instead of (a)(2) of section 245 in the 

information or on the verdict. Accordingly, we disregard the technical defect in the 

verdict (see, e.g., People v. Jones (2003) 29 Cal.4th 1229, 1259; People v. Bolin (1998) 

18 Cal.4th 297, 331; People v. Camacho (2009) 171 Cal.App.4th 1269, 1272-1274; 

People v. Reddick, supra, 176 Cal.App.2d at p. 821) and order correction of the 

corresponding clerical error in the abstract of judgment.

DISPOSITION

Defendant’s convictions of first degree murder on counts I and II and premeditated 

attempted murder on count III are reversed unless the People accept a reduction of the 

convictions to second degree murder on counts I and II and unpremeditated attempted 

murder on count III. After the filing of the remittitur in the trial court, the People shall 

have 30 days in which to file a written election to retry defendant. If they do not timely 

file such an election, and/or do not bring defendant to retrial on the premeditation and 

deliberation elements within the time set forth in Penal Code section 1382, 

subdivision (a)(2) — 60 days unless waived by defendant — the trial court shall proceed 

as if the remittitur constituted a modification of the judgment to reflect convictions of 

second degree murder on counts I and II and unpremeditated attempted murder on 

count III, and shall resentence defendant accordingly. Whether following retrial or 

resentencing, the abstract of judgment shall show defendant was convicted, in count IV, 

of violating Penal Code section 245, subdivision (a)(2), assault with a firearm. 

In all other respects, the judgment is affirmed.
80.

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DETJEN, J.

WE CONCUR:

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KANE, Acting P.J.

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PEÑA, J.