Filed 9/29/14 P. v. Dang CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063310
Plaintiff and Respondent,
v. (Super. Ct. No. SCD229101)
QUANG DANG,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Michael T.
Smyth, Judge. Affirmed.
Nancy Olsen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette and Julie L. Garland,
Assistant Attorneys General, William M. Wood and Marvin E. Mizell, Deputy Attorneys
General, for Plaintiff and Respondent. A jury convicted Quang Dang of second degree murder of his cohabitant Myra
Supiping. (Pen. Code,1 § 187, subd. (a).) It found true an enhancement that he had used
a deadly weapon in committing the murder. (§ 12022, subd. (b)(1).) In separate
proceedings, Dang admitted he previously committed assault with a deadly weapon. The
court found he had a serious felony and a prior strike conviction within the meaning of
the "Three Strikes" law. (§§ 245, subd. (a)(1), 667, subds. (a)(1) & (b)-(i), 668, 1170.12,
1192.7, subd. (c).)
The court denied Dang's request to strike his prior strike conviction under People
v. Superior Court (Romero) (1996) 13 Cal.4th 497, and sentenced him to a total term of
36 years to life as follows: 15 years to life on the murder count, doubled for the true prior
strike finding, and a consecutive five-year term for the prior serious felony, and another
consecutive one-year term for the weapons enhancement.
Dang contends: (1) there was insufficient evidence to support his conviction for
second degree murder because he did not form the requisite intent; (2) alternatively, his
murder conviction should be reduced to voluntary or involuntary manslaughter because
he acted in the heat of passion during a sudden quarrel; (3) the court erroneously denied
his Romero motion and (4) his sentence violates state and federal constitutional
prohibitions against cruel and unusual punishment. We affirm the judgment.
1 All statutory references are to the Penal Code unless otherwise stated. 2 FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Case
Dang and Supiping cohabited for approximately eight years. They lived with
Dang's mother, stepfather, and two sisters in San Diego. Starting in approximately July
2010, Dang used a telephone chat line to talk with women, and shortly afterwards he
introduced it to Supiping, who started calling the chat line to talk with men. Dang
became upset because the July 2010 telephone bill was approximately $1400. Despite
the fact Dang repeatedly questioned Supiping about how they would pay the bill, Dang's
stepfather testified Supiping "never really responded. She always kept quiet."
Eventually, the bill was paid.2 Supiping continued using the chat line, and the next
month's bill also was high.
In the week before the murder, Supiping and her younger son went to stay at her
mother's house, while the older son, who was approximately seven years old, stayed with
Dang. Dang cried frequently regarding her departure, telephoned her often, and enlisted
her brother to talk to her about her excessive chat line calls and the need to keep their
family together. Around that time, Dang was further upset to learn from his older son
that Supiping had taken their children with her on dates with men from the chat line.
2 The record includes conflicting evidence regarding the size of the first telephone bill and who paid it. Dang's stepfather testified Dang paid the approximately $1400 bill. Dang told police his stepfather, who was sick and unemployed, paid the bill that was approximately $400. Dang also said the following month's bill was approximately $1300. 3 On August 10, 2010, Supiping's brother drove her back to Dang's house between
8:00 p.m. and 9:00 p.m. Dang went to hug Supiping but she told him, "Don't touch me."
Dang began to laugh. The brother noticed Dang appeared to have been drinking. He told
Supiping and Dang not to argue.
Dang's stepfather, Larry McNeil, also noticed Dang had been drinking alcohol that
night. Therefore, he spoke to Dang for approximately 30 minutes, advising him not to
argue with Supiping. Dang assured him he was going to bed and would not argue or
cause any problems. Dang went to his bedroom, which was located in a downstairs
section of the split level house. Approximately 45 minutes to an hour later, Dang's
stepfather heard a loud scream coming from Dang's room and rushed there. Supiping
was bleeding and sitting slumped on the bed. She said Dang had stabbed her and left.
The couple's two sons were asleep on the bed next to Supiping. Dang's stepfather called
911. When an ambulance arrived minutes afterwards, Supiping was unconscious and had
no pulse. She died shortly afterwards.
Approximately an hour and a half after the stabbing, Dang telephoned his
stepfather, who told him to turn himself in to police. Dang refused. About half an hour
later, Dang telephoned his stepfather again and they agreed to meet. The police
accompanied the stepfather to the meeting, where they detained and arrested Dang.
Dang's Police Interview
The next morning, police interviewed Dang. The interview videotape was played
for the jury. Dang said he started using the chat line and introduced Supiping to it and
she got "hooked on" it, resulting in large telephone bills. Dang told police that Supiping
4 had met about three or four men, and therefore she had no respect for him or their
children, whom she had taken along with her to the meetings.
When Supiping was staying at her family's house in the days before the murder,
Dang had telephoned her often to ask about their younger son and speak with him. Dang
said Supiping started yelling and she "get attitude with me." She told Dang: "Why are
you worried about it? Why—why are you calling all the time?"
Dang stated that the night of the murder, he had drunk some beer. During their
argument, he started talking to Supiping about the phone bill. She got mad and started
"getting attitude" with Dang, saying, "I don't wanna talk about that." Supiping hit Dang
with a stick, which he managed to grab. He got "pissed off," climbed up the stairs to the
kitchen, got a knife, returned to the bedroom and stabbed her in the neck and chest an
estimated three or four times. Supiping was sitting up while Dang was stabbing her and
she told him, "Leave me alone" and, "Stop." He did not realize she would die. He told
police he loved Supiping and did not mean to kill her; rather, he did not know what he
was doing. After the stabbing, Dang went for a walk and realized, "[O]h, oh, oh, I
messed up." He threw the knife in a rain gutter.
During the interview, a detective asked Dang to explain the difference between
right and wrong. Dang explained that the right thing to do was to "just walk away, call
the police," adding, "or just walk away, get some fresh air. When I calm down, just go
home." Dang explained that to hit somebody is wrong. Dang acknowledged to police:
"I gonna get locked up. I know what I did was wrong. I realize that." At the end of the
5 interview, Dang said that if police let him see his sons, he would show police exactly
where he had thrown away the knife. Dang later helped police locate the knife.3
Police Investigation and Forensic Evidence
A police officer searched Dang's bedroom, a laundry room and another room in
the house but did not find the stick that Dang mentioned in his interview. The police
officer acknowledged he did not search the entire house or ask the family members,
paramedics or other police officers about the stick.
Criminalist Annette Peer had examined and reconstructed the crime scene. She
testified that based on the blood stains found in the bedroom, Supiping was stabbed either
while she was sitting or lying on the bed.
A pathologist performed the autopsy and testified there were nine stab wounds on
Supiping's torso and extremities, and a number of cuts on her extremities. He stated,
"four of the nine wounds penetrated into the chest cavity. And there were injuries to her
left lung, the main pulmonary artery which is a large blood vessel coming off of the heart,
the aorta, and a portion of the left shoulder blade was cut, and also a rib was cut." He
concluded the manner of death was homicide and the cause of death was multiple stab
wounds.
Defense Case
Dang's mother, My McNeil (McNeil), testified Dang was born in Vietnam in
1975, and his father is an American. Dang could not walk until he was six years old.
3 The prosecutor described the weapon in closing argument as "a long, sharp knife, perfect for cutting meat." 6 There were no doctors available to treat him in Vietnam at that time. Many times
children chased and beat Dang because he was of mixed race. He studied in school for
about three years but was unable to learn. Dang and his mother spent approximately
seven months in a refugee camp in the Philippines. In 1986, they moved to the United
States.
Dang's mother testified Dang has received psychiatric treatment since he was
eleven years old. He attended special education classes in the United States but never
learned to read and write. He never made close friends. He and Supiping had been
happy together until the problems with the chat line began. McNeil overheard one of
Supiping's telephone conversations and described it as "very sexual."
When Dang's older son told him that Supiping had taken him to meet her dates,
Dang became very sad because he loved Supiping very much. Dang cried every day she
was away, and told his mother he did not know what to do. McNeil advised him, "Just let
her be, because, you know, if you're trying to keep her, you are just keeping her body
physically but not her soul." Dang responded, "Okay" but McNeil was unsure whether
Dang understood her advice.
Expert Witness Testimony
In 1987, psychologist Jeremy Madoff evaluated Dang, who was 11 years old, but
appeared immature for his age. Dang also appeared sad, and Dr. Madoff concluded it
was "related to issues of loss, rejection and fears of abandonment." Dr. Madoff
recommended that Dang receive psychotherapy.
7 Psychiatrist Trang Nguyen testified she started treating Dang in 2001. She
adopted the previous psychiatrist's diagnosis of Dang as having "hallucination, irrational
thinking, disorganized behavior" and "schizophrenia, undifferentiated." Dr. Nguyen
initially diagnosed Dang with psychosis not otherwise specified but she reverted to the
schizophrenia diagnosis. Dr Nguyen described Dang as exhibiting "primitive" and
"immature thinking," and being "impulsive." Dr. Nguyen noted Dang had improved after
he was prescribed the drug Risperdal. In the last year before Supiping's death, Dang did
not miss any appointments with her. Moreover, he had better eye contact and acted
appropriately until the sessions ended and he was dismissed. Dang was proud of
Supiping and his children and seemed happier after his second son's birth.
Forensic and clinical psychologist Clark Clipson evaluated Dang in January 2006,
and interviewed Dang's mother and stepfather. Dr Clipson testified regarding the
hardships Dang experienced in Vietnam, and the fact Dang was enrolled in special
education classes and completed up to the 11th grade in the United States. A social
service agency evaluated Dang, concluding his mental age was between six and eight
years old. Dr. Clipson said Dang was a loner who had never kept a job for long. Dang's
emotional and behavioral problems caused him to become easily frustrated and exhibit
aggressive tantrums.
Dr. Clipson testified Dang had difficulty controlling his impulses, and "if [Dang]
wants something, he wants it now." He testified Dang suffered from seizures and
depression. Dr. Clipson asserted that every medical professional who administered an
I.Q. test to Dang diagnosed him with "mild mental retardation," which is "by convention
8 defined as I.Q. scores from 55 to 70." Dr. Clipson testified Dang's "overall I.Q. score
was 62. There was a significant difference between his score on measures of
performance I.Q. as opposed to those that measure verbal skills. His performance I.Q.
was a 69. [¶] . . . Those tests are . . . relatively free of factors related to culture,
language and educational background, whereas the verbal tests obviously are more
dependent on those kinds of factors. His verbal I.Q. was a 54."
Dr. Clipson diagnosed Dang with adjustment anxiety disorder and "mild mental
retardation, as well as personality disorder not otherwise specified with avoidant and
dependent features." Dr. Clipson elaborated: "In Mr. Dang's case, he's overly dependent
on other people and relies on others to make decisions for him, to take care of him, to
meet his daily needs. And that's not necessarily inappropriate given his developmental
and cognitive functioning. But it simply conveys that he's unable to make decisions for
himself and take care of himself in the way that most people could. [¶] He's also
avoidant in the sense that . . . he's had a number of negative social experiences between
his biological grandfather, the abandonment by his father and negative peer experiences,
so he is reluctant to spend time with other people to make new friends because he's afraid
he's not going to be liked. And so he avoids being around other people unless he has that
kind of reassurance that he's going to be accepted."
Clinical psychologist Pauline Hsieh counseled Dang from 2006 to 2009, and
concluded he had below average I.Q. During those three years, Hsieh taught Dang anger
management skills. Dang reported to Hsieh that he was using the coping skills she had
taught him, and would walk away to deal with his anger. By 2009, Dang showed
9 improved judgment by attending group sessions regularly and seeing his doctor for
medications. In a 2009 mental status exam, Hsieh classified Dang's insight as
"adequate," and gave him the highest possible rating of "normal" for his judgment.
Psychologist Katherine Di Francesca evaluated Dang in 2011 and diagnosed him
with psychosis not otherwise specified, mild mental retardation and alcohol abuse.
Relying on a hypothetical that tracked the facts of Supiping's murder, she testified it was
unlikely the perpetrator would have specifically intended to kill the victim; instead, he
likely acted rashly. On cross-examination, relying on the same hypothetical as on direct
examination, Dr. Di Francesca testified the perpetrator would have known the nature and
quality of his acts, and that he was stabbing a human being who was his loved one. She
testified that the perpetrator's decision to go to the kitchen for a knife could be considered
"goal-directed behavior." Further, he would have acted in a "frenzy" when he stabbed his
victim nine times.
Motion for New Trial or Modification of Verdict
Dang moved for a new trial under section 1181 on grounds he did not commit
second degree murder because he acted from heat of passion. Pointing to his mental
condition, intoxication, and Supiping's decision to date other men, he concluded that the
evidence, at best, proved he had committed voluntary manslaughter. The People opposed
10 the motion, arguing sufficient evidence supported the verdict, and Dang had acted with
malice. The court denied the motion.4
4 In denying the new trial motion, the court reasoned: "[I]t was pretty clear at the time of [Dang's police] interview that he knew what he had done and why . . . . He talked in that interview about [Supiping] cheating on him and taking the kids on at least one of the dates, and . . . he was angry as a result of that. He did perseverate with respect to him loving her and how mad he was about that. But he claimed . . . both this anger over that but also self-defense, his assertion that she had hit him with a stick. My view of the evidence, frankly, I don't find that very credible. Seemed like an unlikely scenario that she allegedly possibly brought this stick in from outside or somewhere else. There wasn't a stick found. But I do agree with [defense counsel] . . . that it was [a] pretty weak search of the house for an alleged stick that was maybe involved in the crime. The areas that were searched did not reveal a stick. [¶] But in any event, he claimed that he was hit by the stick, grabbed it and threw it down, and then went out of the room, went up the stairs into the kitchen, found a knife, a large knife, came back down and went through what I already discussed. [¶] So from that, I don't think it's unreasonable for a jury to conclude that, whether or not he was angry and emotional . . . that he knew what he was doing. He had the time. One, that he had the intent, his intent through all those actions was to get a knife to come back to inflict deadly injury. But, also, that if he was responding initially out of passion or emotion, that the time and thought that would accompany that trip into the kitchen would negate it or could negate it. [¶] So the issue of whether or not the evidence is sufficient to support the jury's verdict, I think it is sufficient to support the jury's verdict for all the reasons I just said. [¶] . . . I was surprised when I watched the interview at how together [Dang] was when I expected someone who was going to be, I guess, less coherent given his mental health issues in his background. [¶] Also note that he negotiated with the officers in a pretty savvy fashion regarding his efforts to see his kids before he went off to jail. He was making an attempt to exchange information about the location of the knife in exchange for one last visit with his kids, and that ended up not happening. But he had quite a back and forth about that. " The court concluded, "But looking at the evidence independently and weighing the evidence, you know, I find the evidence to be believable. That series of events that preceded and during and then after the actual attack to me shows someone who did intend to inflict those injuries that put [Supiping's] life in jeopardy and was not solely out of impulse and out of no control at all. So I don't find cause to grant a new trial under [section 1181]." For the same reasons, the court denied Dang's motion to modify the verdict to voluntary or involuntary manslaughter.
11 DISCUSSION
I.
Dang contends that as a matter of law the evidence was insufficient to support a
finding he acted with malice aforethought; rather, pointing to the combined effects of his
mental retardation, mental illness and intoxication, he claims, "There was overwhelming
evidence in this case of 'diminished actuality' to show that [he] actually lacked the mental
state of malice aforethought to support a murder conviction." He further argues that as a
matter of law, Supiping's killing was involuntary manslaughter because it occurred
without malice in the commission of an inherently dangerous assaultive felony.
Applicable Law
Here, the court instructed the jury on the law regarding murder with CALCRIM
Nos. 500 [homicide]; 520-521 [first or second degree murder with malice aforethought
and first degree murder]; 505 [self-defense]; 570 voluntary manslaughter: heat of
passion]; 571 [voluntary manslaughter: imperfect self defense] and 580 [involuntary
manslaughter].
First degree murder is an unlawful killing with malice aforethought,
premeditation, and deliberation. (People v. Chun (2009) 45 Cal.4th 1172, 1181.) Second
degree murder is an unlawful killing with malice, but without the elements of
premeditation and deliberation. (Ibid.) Malice may be express (intent to kill) or implied
(intentional commission of life-threatening act with conscious disregard for life). (Ibid.)
To reduce the offense to second degree murder, premeditation and deliberation may be
12 negated by intoxication or heat of passion from provocation. (People v. Carasi (2008) 44
Cal.4th 1263, 1306; see People v. Hughes (2002) 27 Cal.4th 287, 342.)
Even when a defendant has the intent to kill or conscious disregard for life, a
homicide may be further reduced to voluntary manslaughter in limited, explicitly defined
circumstances that are viewed as negating malice. (People v. Moye (2009) 47 Cal.4th
537, 549; People v. Lasko (2000) 23 Cal.4th 101, 107-109.) For voluntary manslaughter,
malice is deemed to be negated by the defendant's (1) heat of passion arising from
provocation that would cause a reasonable person to react with deadly passion, or (2)
unreasonable but good faith belief in the need to act in self-defense (imperfect self-
defense). (Ibid.) Under these two limited circumstances, malice is negated even though
the lethal act was committed with the intent to kill or conscious disregard for life that
otherwise establishes malice. (See People v. Bryant (2013) 56 Cal.4th 959, 968; People
v. Rios (2000) 23 Cal.4th 450, 460-461, 467.)
An unlawful homicide without intent to kill and without conscious disregard for
life is involuntary manslaughter. (People v. Butler (2010) 187 Cal.App.4th 998, 1006.)
Involuntary manslaughter can arise from a lawful act, a misdemeanor, or a noninherently
dangerous felony committed with criminal negligence; that is, aggravated, reckless
conduct that creates a foreseeably high risk of death. (Id. at pp. 1006, 1008.)
"To support a defense of 'diminished actuality,' a defendant presents evidence of
voluntary intoxication or mental condition to show he 'actually' lacked the mental states
required for the crime." (People v. Clark (2011) 52 Cal.4th 856, 880, fn. 3.) "[T]he jury
may generally consider evidence of voluntary intoxication or mental condition in
13 deciding whether defendant actually had the required mental states for the crime."
(People v. Steele (2002) 27 Cal.4th 1230, 1253.) A verdict of involuntary manslaughter
is warranted where the defendant demonstrates " 'that because of his mental illness . . . he
did not in fact form the intent unlawfully to kill (i.e., did not have malice aforethought).' "
(People v. Rogers (2006) 39 Cal.4th 826, 884.) Voluntary intoxication, however, cannot
negate implied malice. (People v. Turk (2008) 164 Cal.App.4th 1361, 1376-1377.)
When a defendant challenges his or her conviction for insufficient evidence on
appeal, we apply the substantial evidence standard of review. "Under this standard, the
court 'must review the whole record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.' [Citations.] The focus of the substantial
evidence test is on the whole record of evidence presented to the trier of fact, rather than
on ' "isolated bits of evidence." ' " (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)
We "must presume in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence." (People v. Jones (1990) 51 Cal.3d 294, 314.)
"The standard of review is the same in cases in which the People rely mainly on
circumstantial evidence." (People v. Stanley (1995) 10 Cal.4th 764, 792.)
Because there is rarely direct evidence of a defendant's knowledge (People v.
Buckley (1986) 183 Cal.App.3d 489, 494-495) or intent (People v. Chinchilla (1997) 52
Cal.App.4th 683, 690), these matters generally must be established by circumstantial
evidence and the reasonable inferences to which it gives rise. (People v. Smith (2005) 37
14 Cal.4th 733, 741.) "Conflicts and even testimony which is subject to justifiable suspicion
do not justify the reversal of a judgment, for it is the exclusive province of the trial judge
or jury to determine the credibility of a witness and the truth or falsity of the facts upon
which a determination depends. [Citation.] We resolve neither credibility issues nor
evidentiary conflicts; we look for substantial evidence." (People v. Maury (2003) 30
Cal.4th 342, 403.)
Analysis
We conclude that substantial circumstantial evidence supported the jury's finding
Dang stabbed Supiping with implied malice: In the few hours between Supiping's return
to Dang's house and when she was killed, two people specifically warned Dang not to
argue with her. Supiping's brother did so first, and afterwards, approximately one hour
before the murder, Dang's stepfather did so. Nevertheless, Dang elected to argue with
Supiping. When the argument escalated, Dang left the bedroom, climbed upstairs,
entered the kitchen, selected a large knife that could inflict harm, returned to the
bedroom, and stabbed Supiping nine times, including in the neck and chest. (See People
v. Moore (2002) 96 Cal.App.4th 1105, 1114 [finding that stabbing a victim in "an
extremely vulnerable area of the body" provided substantial evidence of an intent to kill.]
She pleaded that he stop and leave her alone. Dang evinced consciousness of guilt by
immediately fleeing the house and throwing away his weapon. The jury was instructed
regarding consciousness of guilt and flight with CALCRIM Nos. 371 and 372
respectively. On this record, Dang's documented mental illness and intoxication did not
15 preclude the jury from finding he acted with malice aforethought and thus he committed
second degree murder.
II.
Dang alternatively contends that any finding of malice aforethought was negated
by overwhelming evidence that he acted out of heat of passion and during a sudden
quarrel; therefore, his murder conviction must be reduced to voluntary manslaughter.
Specifically, Dang argues: "The suddenness of the stabbing incident is undisputed. It is
also undisputed that [he] and [Supiping] argued immediately before the stabbing.
[Supiping] was angry when she arrived at [his] house because her brother . . . lectured her
about her use of the chat lines, and [Dang] was persistent in his efforts to discuss the
matter with her. [Dang] tried to hug [Supiping] when she returned . . . home, but she
brushed him off and told him not to touch her. [Supiping] refused to talk to [him] or
anyone else about her infidelity and excessive use of the chat lines, incurring exorbitant
phone bills they could not afford to pay. [¶] Uncontroverted evidence was presented at
trial that [Dang] was visibly distraught in the days and weeks before the killing,
particularly during the time [Supiping] left the McNeil home to stay with her family.
[Dang] was unconsolable and cried every day. He also called [Supiping] and [her
brother] daily during the time [Supiping] was with her family, but [Supiping] refused to
talk to him."
The California Supreme Court explained the law regarding heat of passion: "An
unlawful killing is voluntary manslaughter only 'if the killer's reason was actually
16 obscured as the result of a strong passion aroused by a "provocation" sufficient to cause
an " 'ordinary [person] of average disposition . . . to act rashly or without due deliberation
and reflection, and from this passion rather than from judgment.' " [Citations.]'
[Citation.] 'The provocation must be such that an average, sober person would be so
inflamed that he or she would lose reason and judgment. Adequate provocation . . . must
be affirmatively demonstrated.' " (People v. Thomas (2012) 53 Cal.4th 771, 813.)
"The heat of passion requirement for manslaughter has both an objective and a
subjective component. [Citation.] The defendant must actually, subjectively, kill under
the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion
are also viewed objectively. . . . '[T]his heat of passion must be such a passion as would
naturally be aroused in the mind of an ordinarily reasonable person under the given facts
and circumstances,' because 'no defendant may set up his own standard of conduct and
justify or excuse himself because in fact his passions were aroused, unless further the jury
believe that the facts and circumstances were sufficient to arouse the passions of the
ordinarily reasonable man.' " (People v. Steele, supra, 27 Cal.4th at pp. 1252-1253.)
In addition, "the killing must be 'upon a sudden quarrel or heat of passion'
[citation]; that is, 'suddenly as a response to the provocation, and not belatedly as revenge
or punishment. Hence, the rule is that, if sufficient time has elapsed for the passions of
an ordinarily reasonable person to cool, the killing is murder, not manslaughter.' "
(People v. Daniels (1991) 52 Cal.3d 815, 868, italics added.)
The California Supreme Court has stated that adequate provocation for voluntary
manslaughter cannot be shown "where the act that allegedly provoked the killing was no
17 more than taunting words, a technical battery, or slight touching." (People v. Gutierrez
(2009) 45 Cal.4th 789, 826.) The Gutierrez court explained, "Defendant testified that he
told [the victim], '[g]et off me, you f . . . ing bitch,' and that she 'cuss[ed] back at' him.
We have held that calling the defendant 'a "mother f . . . er" and . . . repeatedly asserting
that if defendant had a weapon, he should take it out and use it . . . plainly were
insufficient to cause an average person to become so inflamed as to lose reason and
judgment.' [Citation.] . . . [¶] Defendant also testified that [the victim] scratched his
chest, he kicked her, she kicked him in the leg and grabbed his shirt, and he pulled away.
Simple assault, such as the tussle defendant described, also does not rise to the level of
provocation necessary to support a voluntary manslaughter instruction." (Id. at p. 827.)
Even viewing the evidence in the light most favorable to Dang, we conclude there
was insufficient evidence of actual provocation by Supiping so as to provide an objective
basis for reducing Dang's murder conviction to manslaughter based on heat of passion.
The couple's problems began weeks before the murder, and related to Supiping's use of
the chat line, her incurring high phone bills and, later, her reportedly taking her children
to meet her dates.
Supiping's decision to stay at her mother's house for some days provided an
opportunity for Dang to cool down from any provocation caused by Supiping's calling the
chat lines and her high phone bills. There is no evidence that Supiping verbally taunted
Dang. To the contrary, though Dang unspecifically told police Supiping had an
"attitude," he also said her reaction to his scoldings was to refuse to discuss the matter.
18 This case does not present anything close to the taunts found to be insufficient
provocation in People v. Gutierrez, supra, 45 Cal.4th 789. This case is also unlike
People v. Berry (1976) 18 Cal.3d 509, in which the court relied on the holding in People
v. Borchers (1958) 50 Cal.2d 321 to the effect that "evidence of admissions of infidelity
by the defendant's paramour, taunts directed to him and other conduct" supported a
finding that defendant killed in wild desperation induced by the woman's " 'long
provocatory conduct.' " (Berry, supra, at p. 513.)
Dang's discovery that Supiping had reportedly taken the children with her on her
dates was not enough to make a reasonable person lose reason and judgment. In any
event, he had enough time to cool off from any inflamed passions in the time between his
discovery and Supiping's return from her mother's house.
Finally, approximately one hour before the argument, Dang promised his
stepfather he would not argue or cause problems. Dang thus had an opportunity to avoid
an argument, but he did not take it. After the argument began, Dang was presented with
another opportunity to desist from committing the murder. Instead, he engaged in "goal-
directed behavior" of leaving the bedroom, climbing upstairs to the kitchen, selecting a
weapon, returning downstairs to the bedroom and stabbing her. The jury reasonably
concluded Dang acted with reason, and not because his judgment was overcome by
passions.
Although Dang testified Supiping hit him with a stick, he told police he grabbed
the stick and thus he readily disarmed her. Like the Gutierrez court, we conclude that
this evidence—amounting to a simple assault—does not rise to the level of provocation
19 that would cause a reasonable person in Dang's position to lose his judgment. (People v.
Gutierrez, supra, 45 Cal.4th at p. 826.) Therefore, the properly instructed jury did not err
in rejecting the heat of passion defense.
III.
Dang contends the trial court abused its discretion in not striking his prior strike
conviction under Romero, supra, 13 Cal.4th 497. He points out that experts at trial
documented his mental health problems, including his limited impulse control. Dang
reiterates the arguments he made below that the court should have struck his prior strike
"because his diminished mental capacity and mental illness reduce his personal
culpability, taking him outside of the spirit of the Three Strikes law." Regarding his
future prospects, he argues that if the court had struck the prior strike, he would have
received a more appropriate sentence of 15 years in prison, noting that he lacks the
mental capacity to be released back into society and will likely be a mentally disordered
offender for the rest of his life after he serves his prison term. Therefore, he concludes:
The only issue is "which facility best serves the interest of justice—a prison or a hospital
for 'mentally disordered offenders.' "
Dang specifically contends: "[D]espite overwhelming, uncontroverted evidence of
[his] severe mental and emotional disabilities, the court speculated, absent supporting
evidence, that [he] may just be a 'mean-spirited thug' who has engaged in anti-social, self-
indulgent, violent behavior."
20 Background
At the hearing on Dang's section 1385 motion to strike, Dang's counsel argued that
Dang's mental illness played a role in the homicide and the prior strike: "Mr. Dang does
have a significant mental illness that, no matter how you look at this case, played a role in
the homicide. He would not be here today but for the fact that he has the mental illnesses
he suffers from. He wouldn't have the prior strike but for the mental illnesses he suffers
now. They all played a role in creating [Dang]."
Further, relying on the probation report, defense counsel stated: "I think if we
punish Mr. Dang by sending him to prison for 15 years to life, that more than adequately
punishes Mr. Dang for the conduct he's engaged in in this case, in addition to the fact Mr.
Dang at least recognizes he's taken the life of the one woman he's truly loved in this. And
I think—I don't even think the prosecution is going to dispute the fact that Mr. Dang did
significantly love this person. [¶] It's going to—it's in addition to the sanction that Mr.
Dang is going to be separated from the only support and family he's ever known and
placed in a very violent environment. It's in addition to the punitive sanction that Mr.
Dang is going to be separated from the very young children that he loves dearly and that
he recognizes that. It is very—it is in addition to the extreme sanction that Mr. Dang
with all of his mental health issues is going to be placed in an environment he can't
possibly understand."
The court asked the prosecutor to address the specific defense argument based on
Dang's "background and character and his prospects . . . how the longer incarceration
might affect him in a more significant way than it might someone otherwise situated."
21 The prosecutor stated: "[F]irst of all, I want to say [Dang] is not a six-year-old child, he's
a 37-year-old man. He does have mild mental retardation, that's true, it's proven by all
the experts. But he's not a six-year-old boy. He's a man and he acts like a man, and he
acts like a criminal man, he's been doing it for a long time now. He's got a long history
of that. [¶] Defense uses the—his specific words are that this will have 'greater punitive
effect' on [Dang] as compared to somebody else. There is absolutely no evidence of that.
There is no way to know that putting [Dang] in prison compared to the average person on
the street is going to affect him mentally more severely than it would the other person."
The court acknowledged Dang's difficult childhood: "[Y]ou know, I completely
agree, when I watch the evidence develop and be presented and hear this litany of
testimony about his background, I will say it was very sad. I mean very moving. He
[had] a horrible childhood . . . in Vietnam, coming over here and having more difficulties.
It was heart wrenching, no question about it."
The court stated the impression it might have had of Dang separate from his
mental health problems: "But what surprised me when I looked at the probation report,
putting his—if I didn't have this mental health issue, he just looks like a criminal thug,
that's all he looks like. To say that his strike prior is, well, it wouldn't have happened if it
wasn't for his mental health issues, you know, I guess your point is it was a similar
situation, he was mad about something, acted out of impulse and couldn't help himself.
But he got into a dispute over a girl basically with another guy who told him sort of back
off his treatment of this woman. [Dang] drove and found the guy, got out of his car and
beat him with a baseball bat, and then got in his car and took off." (Italics added.) The
22 court continued, "I guess you can argue that, hey, well, yeah, he did that, but he wouldn't
have done it if he didn't have these mental health issues. But maybe he wouldn't have
done it if he wasn't in some respects a mean-spirited thug. Maybe it was just that. There
were other incidents of violence and . . . at least I guess you could characterize it as sort
of violent behavior, this antisocial and self-indulgent behavior. [¶] I was surprised to
find that he's out driving, driving drunk, fleeing police, going to the local bars. I was
surprised by all of that. Then you have this background—in the background this
significant mental health issue. And is there that strong of a causal effect or is he a
person with mental health issues who happens to be sort of criminally minded and not
very mindful of his obligation to be law abiding and not attack other people?" (Italics
added.)
The court expressed an understanding of defense counsel's argument regarding
Dang's mental health, stating: "I could see an argument that [Dang's] overall pathetic and
very difficult life arguably puts him outside the spirit [of the Three Strikes law] in the
sense of, look, instead of 30 to life, give him 15 to life, maybe he'll get some help down
the line that will benefit him and society." The court added, "Those of us who work in
the system could make a reasonable inference that someone who is dim-witted and slow
would be more vulnerable in prison than someone who isn't, and also not physically very
large."
In its final ruling, the court relied on the probation report and summarized Dang's
criminal history, starting with the details underlying Dang's 2005 prior strike: "Looking
at the particulars of the prior strike conviction . . . the facts as they're related in the
23 probation report include that . . . [Dang] had this friend named Vicky, who's also friends
with the victim in the strike case, the fellow named Macintosh. And they had—
apparently [Dang] had left some disrespectful and derogatory messages on Vicky's
answering machine. [¶] And on the day of the incident, Macintosh runs into [Dang] or
met [Dang], confronted him about calling Vicky and told him not to call her again. After
an argument, the victim left on foot. [Dang] followed the victim in his truck, stopped the
car next to the victim, got out of the car and assaulted him, hitting him about seven times
in the head, shoulders and arms with a baseball bat. [Dang] then fled the scene in his car.
And the victim managed to walk home where he called the police. At the victim's
residence they noted he had blood on his head and elbow, and some pain in his head and
shoulder area, and was taken to the hospital." The court noted Dang's prior strike was a
"serious strike:" "Dang ended up having a guy that I assume survived it well enough and
recovered from his injuries. But [Dang] tracking him down and pummeling him with a
baseball bat seven times in the head and shoulders is on the little more serious end of
the . . . continuum."
The court referred to Dang's 2007 arrest for driving under the influence: "[Dang]
was charged with various offenses including assault and resisting arrest and evading. But
the essential facts of that was that he was driving and almost hit two pedestrians in a
crosswalk . . . . The officers conducted a traffic stop of him. And he pulled over but then
backed his car—after stopping, he then put his vehicle in reverse and backed into the
patrol car and then drove off, pursuit ensued, and he eventually pulled over and then ran.
He was apprehended outside of a house where a female came to the door and said he
24 lived there. And there was some back and forth with that female, but the defendant was
arrested, struggled and was uncooperative and kicking the patrol car doors and screaming
and whatnot. There was some alcohol found in the car. He pled out to—I think just to a
D.U.I. in that case. Yeah, with alcohol allegations I believe."
The court described Dang's act of vandalism in 2008: "[Dang] was charged with
vandalism for smashing the front window of a car that belonged to a victim, I believe in
his neighborhood, but the victim said that Dang . . . had been harassing him for some
time and they had a history of disagreements. [Dang] busted in the front window of—the
windshield of his car."
The court continued: "And then in 2010 you have the instant offense. There were
a couple of other uncharged things having to do with [Dang], one with him being drunk
in public and being seen smashing a window of a car and then scratching the car, and it's
unknown what happened to that. . . . And the other was subsequent to the strike
conviction, he had an argument with somebody over rent money, it was his cousin, and
punched him in the back of the head five times. When Dang was questioned, he said that
the victim had fallen down and hit his head. Unknown what happened with that case, I'm
not sure why that is."
The court concluded that after suffering the prior strike, Dang "[did not] perform
well being supervised"; rather, "he has continued conduct that is criminal in nature and
dangerous to society," including by committing the instant serious offense. Therefore,
the court denied the Romero motion, ruling: "Even with the mental health background
25 and what I consider to be a very sympathetic initial history, I don't find him falling
outside the spirit of the scheme, the three strikes scheme." (Italics added.)
The purpose of the Three Strikes law is to ''ensure longer prison sentences and
greater punishment for those who commit a felony and have been previously convicted of
one or more serious and/or violent offenses.'' (§ 667, subd. (b).) A defendant who
commits any felony with one strike prior must be sentenced to twice the base term of the
current felony. (§ 667, subd. (e)(1).)
Section 1385, subdivision (a) allows a court to dismiss strike priors in ''furtherance
of justice.'' There is a "legislative presumption that a court acts properly whenever it
sentences a defendant in accordance with the three strikes law." (People v. Carmony
(2004) 33 Cal.4th 367, 376.) Departure from this presumption will be justified by
extraordinary circumstances only. (Id. at p. 378.) The question is " 'whether, in light of
the nature and circumstances of his present felonies and prior serious and/or violent
felony convictions, and the particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme's spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted of one or more serious
and/or violent felonies.' " (Id. at p. 377.) We review the trial court's decision to not strike
a prior strike conviction for abuse of discretion. (Id. at p. 376.)
As explained by the California Supreme Court, two legal principles guide our
review: First, " ' "[t]he burden is on the party attacking the sentence to clearly show that
the sentencing decision was irrational and arbitrary." ' " (People v. Carmony, supra, 33
26 Cal.4th at p. 376.) If this is not shown, the trial court " ' "is presumed to have acted to
achieve legitimate sentencing objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review." ' " (Id. at pp. 376-377.) Second, a
" ' "decision will not be reversed merely because reasonable people might disagree. 'An
appellate tribunal is neither authorized nor warranted in substituting its judgment for the
judgment of the trial judge.' " ' " (Id. at p. 377.) Thus, "a trial court does not abuse its
discretion unless its decision is so irrational or arbitrary that no reasonable person could
agree with it." (Ibid.) " '[W]here the record demonstrates that the trial court balanced the
relevant facts and reached an impartial decision in conformity with the spirit of the law,
we shall affirm the trial court's ruling, even if we might have ruled differently in the first
instance.' " (Id. at p. 378.)
We conclude the court acted well within its discretion in refusing to strike Dang's
strike prior. As set forth above, the court relied on the probation report documenting
Dang's lengthy criminal history, which it analyzed in light of the Romero factors. As
Dang acknowledges, the court's comments demonstrated its understanding of Dang's
childhood hardships.
We recognize Dang regards the trial court's remarks comparing him to a "criminal
thug" as "unsupported speculation" going "contrary to the overwhelming evidence of
[Dang's] significantly impaired ability to think rationally and control his impulses," thus
indicating the court erred in its Romero analysis. But we disagree. Understood in
context, the court's statement was not objectionable as it was responding to defense
27 counsel's assertion that Dang's mental illness played a role in Dang's prior strike and the
murder. The court merely questioned whether, and to what extent, Dang's criminal
conduct was instead attributable to a tendency to engage in thuggish behavior. We note
the court's ruling did take into account that "even with [Dang's] mental health
background," he did not fall outside the spirit of the Three Strikes law. Accordingly, we
discern no abuse of discretion.
IV.
Dang contends his sentence is cruel and usual punishment and grossly
disproportionate to his individual liability, arguing that because he was 37 years old at
sentencing, he "will serve most, if not all, of the 36-year portion of his indeterminate term
before he will be eligible for parole. He will be 73 years old by that time. [¶] There is
also a significant likelihood that [he] will not be eligible for parole at the earliest possible
date, because his severe mental and emotional disabilities impair his ability to understand
and comply with prison rules. Thus [he] will likely spend the remainder of his life in
prison."
The People assert that Dang did not raise the issue of cruel and unusual
punishment in the trial court. Some courts have held that when the issue of cruel and
unusual punishment is not raised at the trial level, it is waived on appeal. (People v. Ross
(1994) 28 Cal.App.4th 1151, 1157, fn. 8; People v. DeJesus (1995) 38 Cal.App.4th 1,
27.) Nevertheless, we will assume Dang did not waive the contention on appeal.
A sentence violates the constitutional proscription against cruel and/or unusual
punishment if the punishment is grossly disproportionate to the severity of the crime or
28 the defendant's individual culpability, or it shocks the conscience and offends
fundamental notions of human dignity. (People v. Hines (1997) 15 Cal.4th 997, 1078;
People v. Russell (2010) 187 Cal.App.4th 981, 993.)
When evaluating the constitutionality of a punishment, the court examines the
circumstances of the offense, extent of the defendant's involvement, manner in which the
crime was committed, and consequences of the defendant's acts, as well as the
defendant's personal characteristics, including age, prior criminality, and mental
capabilities. (People v. Hines, supra, 15 Cal.4th at p. 1078.) On appeal, we view the
facts in the manner most favorable to the judgment and resolve the issue as a matter of
law. (People v. Martinez (1999) 76 Cal.App.4th 489, 496.) The "[d]efendant must
overcome a 'considerable burden' to show the sentence is disproportionate to his level of
culpability. [Citation.] Therefore, '[f]indings of disproportionality have occurred with
exquisite rarity in the case law.' " (People v. Em (2009) 171 Cal.App.4th 964, 972.)
Dang's claim of unconstitutionality is unavailing. First, it does not shock the
conscience that he was sentenced to an indeterminate term of 30 years to life for fatally
stabbing his unarmed cohabitant. The sentence serves the legitimate purpose of
protecting society from any further violent conduct by him. As noted, Dang's past
criminal conduct was documented at the Romero hearing.
Second, the record before us does not compel a finding that his mental deficits
were so severe that his moral culpability for the shooting was reduced. Dang told police
that he had done wrong and he would be locked up. Further, Dr Di Francesca testified
Dang had engaged in purposeful, goal-directed behavior when he went to the kitchen for
29 the knife. Notably, Dr. Nguyen testified Dang's mental health had improved after he
began taking Risperdal. Lastly, Hsieh testified that in the year before the murder, Dang's
judgment had improved to the point that she regarded it as "normal."
Third, even assuming Dang was viewed as less morally culpable due to his mild
mental retardation, he has not shown that imprisonment for the remainder of his life is
cruel or unusual punishment. The cases he has cited to support his argument are
distinguishable. For example, in Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455,
2460, 2466-2469], the United States Supreme Court held that under constitutional
proportionality principles, when sentencing juvenile offenders for murder, trial courts
should not be required to impose life sentences without the possibility of parole, but
rather should have the discretion to select (for example) life sentences with the possibility
of parole based on the defendant's youth and the circumstances of the crime. Miller did
not establish a blanket rule that a cognitively-deficient defendant who commits murder
cannot constitutionally receive a sentence that does not allow for parole. (See Miller,
supra, 567 U.S. ___ [132 S.Ct. at pp. 2465-2470] [categorical bar on life without parole
for juveniles applies only to nonhomicide offenses; homicide offenses committed by
juveniles require individualized sentencing decision]; People v. Gutierrez (2014) 58
Cal.4th 1354, 1389-1390 [discretionary life without parole sentence may be imposed on
juvenile for homicide offense upon consideration of relevant factors].) Moreover, unlike
juveniles—for whom mandatory life without parole sentences are precluded due to the
prospects for rehabilitation as their brains develop (Miller, supra, 567 U.S. ___ [132
S.Ct. at pp. 2460, 2465-2468])—Dang has not shown his mental condition could be
30 improved to make him safe if released so as to constitutionally mandate consideration or
imposition of a sentence that might realistically allow for his release.
Also, Dang's citations to cases precluding death sentences for mentally retarded
persons and juveniles (see Atkins v. Virginia (2002) 536 U.S. 304, 318-321; Roper v.
Simmons (2005) 543 U.S. 551, 568-575) do not advance his position because he was not
sentenced to death. Indeed, sentences of life without parole—rather than death—have
been deemed appropriate for mentally retarded or brain damaged defendants. (See, e.g.,
§ 1376, subd. (c)(1) [intellectually disabled defendants who commit capital offense must
be sentenced to life without parole, not death]; Crook v. State (Fla. 2005) 908 So.2d 350,
358-359 [for constitutional proportionality reasons, death sentence reduced to life without
parole for brain-damaged defendant].) These sentencing dispositions implicitly recognize
that in appropriate circumstances it is not cruel or unusual punishment to send a
defendant with mental deficits to prison for the rest of his or her life.
31 DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
NARES, J.