Filed 10/19/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G057657
v. (Super. Ct. No. 15WF1099)
TROY SON, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Gregg L.
Prickett, Judge. Affirmed.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and
Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Troy Son was charged with murder (Pen. Code, § 187, subd. (a))
with an enhancement for the personal use of a deadly weapon (Pen. Code, § 12022, subd.
(b)(1)). The jury found defendant guilty of first degree murder, unanimously finding that
the murder was willful, deliberate and premeditated and committed by lying in wait. The
jury found the weapon use allegation to be true. Defendant was sentenced to a state
prison term of 26 years to life, comprised of 25 years to life for the murder, plus a
consecutive one year for the enhancement.
Defendant raises three issues on appeal.
First, defendant contends the court committed evidentiary error by
permitting a detective to describe the events of a surveillance video that was subsequently
watched by the jury. The court did not abuse its discretion, however, as the detective’s
narration was admissible lay testimony based on her extensive review of the video.
Defendant’s second and third arguments go to each of the first-degree
murder theories. The jury made separate findings on two theories of first-degree murder:
premeditation, and lying in wait. Defendant contends both were infected with error. To
prevail on appeal, he must prevail on both arguments—if either the premeditation or
lying-in-wait finding is upheld, then any error in the other is necessarily harmless.
As to premeditation, defendant argues the prosecutor committed
misconduct when explaining the concept of premeditation by offering two improper
examples: the decision to drive through a yellow light, and the decision to fire a gun not
just once, but a second time. We take no issue with the yellow light example. In the way
the prosecutor described that example, it accurately depicted the sort of calculated,
deliberate choice that constitutes premeditation. As to the second-shot example, we agree
that it was somewhat suspect. There certainly are cases where the number of shots fired
can indicate premeditation, but not always. Nevertheless, the example was harmless: the
multiple-shots example is not entirely wrong, the prosecutor mentioned it only briefly,
this was not a gun case, the issue of premeditation hinged on defendant’s mental health,
and the court properly instructed the jury. Because we uphold the first-degree murder
conviction on a theory of premeditation, we need not address lying in wait.
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FACTS
Prosecution Case
It was late in the evening on May 19, 2015, when Luis and his friend Jarret
were hanging out near Jarret’s house, smoking and drinking beer. They called Bryan
Ortega, the victim, to join them. Ortega told them he was on his way.
Luis and Ortega were around 20 years old and had been friends since
middle school. Luis did not know Ortega to have any enemies and considered him
nonviolent.
Jarret went inside his home to use the bathroom. Luis waited outside near
Jarret’s home and watched videos on his phone. A man later identified as defendant
approached Luis. Defendant wore a black hooded sweatshirt, a hat, and shorts.
Defendant asked Luis, “Do you have a cigarette?” Luis told him “no” without looking up
from his phone. Defendant walked past Luis and went around the corner.
About three to four minutes later, defendant approached Luis from the same
direction as the initial encounter. Defendant asked Luis, “Do you skate?” and “Let’s play
skate.” Luis, who had a skateboard, responded, “No.” Defendant walked past Luis and
around the corner, out of Luis’s sight.
Shortly afterward, Luis heard screaming, which he thought was “two little
kids like play fighting.” Luis heard additional screams and ran around the corner. He
saw defendant holding Ortega from the neck. Luis shouted, “Get the fuck off of him.”
Defendant “sliced or did something” and ran away.
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Luis approached Ortega, who appeared badly hurt. Luis, in a state of
shock, picked Ortega up and put him back down. Forgetting about the phone in his
pocket, Luis ran to Jarret’s home, banged on the window, and told Jarret to call the
police.
The neighbor next door had a security system with four exterior cameras.
He heard Ortega scream that evening and came out of his house to find Ortega’s bloodied
body on the ground. The police showed up shortly after and the neighbor invited them
inside to view the video recording from his surveillance cameras. The police ultimately
took the surveillance system from the neighbor’s house.
Detective Ramirez from the Garden Grove Police Department was the lead
detective in this case. Detective Ramirez viewed the surveillance video at least 50 times,
including about five to 10 times while inside the neighbor’s home. Detective Ramirez
primarily focused on the video of the actual attack. A video edited to show only the
assault was played at trial.
Detective Ramirez pointed out various aspects of the video that she
perceived based on her investigation and repeated viewings. She explained that during
the initial attack, defendant made “[a] thrusting motion that appeared to be a stabbing
motion.” Defendant made this motion four times at Ortega’s upper body. It appeared that
defendant held a shiny object in his right hand during these initial four thrusting motions.
Defendant fell on his rear. His right hand swung out and the object he was holding fell to
the ground. Defendant and Ortega struggled. Defendant retrieved the object he had
dropped. Defendant charged at Ortega and made four or five stabbing or thrusting
motions at Ortega’s upper body.
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Other portions of the surveillance video showing defendant in the area prior
to the assault were played at trial: (1) on May 17, defendant rode a bicycle at about 8:47
p.m. and walked by around 10:33 p.m.; (2) on May 18, defendant walked in the area
around 8:51 p.m. and rode a bicycle at 10:37 p.m.; and (3) in the early hours of May 19,
defendant walked in the area around 12:38 a.m. and 1:11 a.m. Other than defendant’s
comings and goings, Detective Ramirez described the traffic in that area as “minimal to
none” during the evening hours.
Aside from the video, Detective Ramirez’s investigation at the scene
resulted in two other relevant developments. First, she noted that the lighting in the area
where the attack occurred was darker than the surrounding area. Second, a hat was
recovered at the scene. Detective Ramirez submitted the hat to a crime lab for DNA
testing in an attempt to identify the attacker. A few days later, the lab notified Detective
Ramirez that DNA on the hat was a match for defendant.
On May 22, 2015, police searched defendant’s home pursuant to a warrant.
Detective Ramirez, who participated in the search, noted a blood smear on the wall near
the stairs. She also found a blood stain on the mattress topper in defendant’s room.
Laboratory tests would subsequently reveal that both blood stains contained the victim’s
DNA.
Police also searched defendant’s computer. They found that in the hours
after the homicide, defendant performed an internet search for “fingerprints on weapon.”
He also searched for “weapon was found at a murder scene.”
Detective Ramirez interviewed defendant. She noticed he had scrapes on
his knuckles and his right hand was swollen. He had a scratch on the left side of his
neck. And his hair was freshly shaved in a buzz cut. She also noticed he had blood
under his finger nails. In response to Detective Ramirez noticing that, defendant began
attempting to pick the blood out from under his nails.
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An autopsy showed that Ortega had 12 stab or slash wounds. Ortega’s
cause of death was multiple sharp force injuries to his head, neck, chest, and “left upper
extremity.”
Defendant and the victim, Ortega, had attended the same high school for a
period of time. There were no other apparent connections between the two.
Defense Case
Defendant’s mother testified that his life began deteriorating late in high
school and in college when he started smoking a lot of marijuana and spending time with
unsavory friends. Both defendant’s mother and brother testified that defendant was
talking to himself in odd ways before the murder. Defendant’s mother was growing
concerned because defendant was hearing things that were not there. Neither noticed
anything odd about defendant on the day of the murder.
Dr. Pitt, a psychiatrist, evaluated defendant and reviewed materials in this
case including police reports and his medical records. Dr. Pitt opined that on the night of
the incident, defendant suffered from “longstanding major depressive disorder with
psychotic features as well as dysthymia, which is a lower level of chronic depression.”
As a result, defendant was experiencing auditory hallucinations. People suffering from
defendant’s disorder are more likely to be aggressive. They also may have impaired
judgment and impulse control. Defendant’s disorder negatively impacted his ability to
weigh and consider decisions.
On cross-examination, Dr. Pitt acknowledged that the evidence of
defendant’s major depressive disorder was mostly based on his own words, rather than
objective evidence. She conceded that defendant had an “obvious reason” to malinger,
and the two most common disorders that were malingered were psychosis and
depression.
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Four of defendant’s friends testified that defendant did not have an
aggressive or violent personality.
Rebuttal
Detective Ramirez interviewed defendant on the day of his arrest for
approximately four hours. Defendant did not do or say anything bizarre, and responded
appropriately to questions. Defendant did not say that he was depressed or mention
hearing voices.
During argument, defense counsel conceded that defendant murdered
Ortega. The sole issue was whether the murder was in the second or first degree.
DISCUSSION
Detective Ramirez’s Commentary on the Surveillance Video
Defendant first contends the court abused its discretion in permitting
Detective Ramirez to comment on what she perceived in the surveillance video. We
conclude her testimony was admissible and that, in any event, the testimony was
harmless. We review the court’s admission of evidence for abuse of discretion. (People
v. Sánchez (2016) 63 Cal.4th 411, 456.)
At trial, the court held an Evidence Code section 402 hearing on the
admissibility of the testimony. Detective Ramirez testified that she watched the video “at
least 50 times.” She explained that the first time she watched the video, she did not
notice defendant’s hat fly off, nor did she notice the shiny object (which she later
clarified was “a stabbing instrument”) fly out of defendant’s right hand midway through
the assault, but that she was able to perceive those events after repeated viewings. She
explained that discerning the exact events that transpired was difficult because “there’s so
much going on. There’s so much movement.” She watched the video in slow motion.
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The prosecutor described the video “as being black and white and having moderate
resolution, meaning it is not of the quality one might see in a Nordstroms, and there are
some events that take place closer to the cameras and some events that take place further
from camera view.”
Pinning down exactly what the objection was to Detective Ramirez’s
testimony proved elusive. After hearing Detective Ramirez’s testimony at the Evidence
Code Section 402 hearing, defense counsel commented, “So I am not quite sure what I’m
asking to be excluded, but there are certain things that I agree are foundational that
somebody who had seen the video could say. For instance, that appears to be [defendant]
walking. That appears to be Bryan Ortega on the bicycle holding something.” “I think
that describing the actual physics of what’s going on is fine . . . .” On the other hand,
defense counsel went on to suggest that “the video really does speak for itself” and that
Detective Ramirez’s testimony was not helpful. Defense counsel noted that the video is
“grainy enough that some of that is kind of ambiguous.” “I just think it’s too ambiguous
to have a witness for the prosecution get up there and say this is what I see. I think the
jury should decide what they see.” Defense counsel went on to express concern “about
the prejudicial effect it will have on the decision-making process of the jury.”
On appeal, defendant contends the testimony was inadmissible secondary
evidence of the video, inadmissible lay opinion, and inadmissible under Evidence Code
section 352. 1 We address each in turn.
First, defendant contends Detective Ramirez’s testimony violated the
secondary evidence rule. Evidence Code section 1521, subdivision (a), provides, “The
content of a writing may be proved by otherwise admissible secondary evidence.”
1 Defendant argues that, to the extent defense counsel failed to clearly
articulate these objections, it was ineffective assistance of counsel. We elect to address
the objections on their merits rather than address the ineffective assistance of counsel
claim.
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However, under Evidence Code section 1523, “oral testimony is not admissible to prove
the content of a writing,” with certain exceptions not applicable here. A video is a
writing for purposes of the secondary evidence rule. (Evid. Code, § 250; People v.
Goldsmith (2014) 59 Cal.4th 258, 266.)
The weak point in defendant’s argument is that the writing was admitted
into evidence. Defendant has not pointed to any case in which the secondary evidence
rule was applied even though the writing itself was admitted into evidence, nor are we
aware of any such case. In our view, the purpose of Detective Ramirez’s testimony was
not to “prove the content” of the video, but instead to highlight important details in the
video—details that might otherwise be missed.
Defendant’s second argument is that Detective Ramirez’s testimony was
inadmissible lay opinion testimony. Evidence Code section 800 provides, “If a witness is
not testifying as an expert, [her] testimony in the form of an opinion is limited to such an
opinion as is permitted by law, including but not limited to an opinion that is: [¶] (a)
Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear
understanding of [her] testimony.”
Preliminarily, we fail to see any opinions expressed in Detective Ramirez’s
testimony. She essentially just testified to what she saw. Defendant has not pointed to
any portion of her testimony that is disputed. If she had witnessed the actual murder and
given the exact same testimony, we certainly would not characterize it as opinion
testimony. It would be percipient testimony. Why does it become an opinion just
because she saw it in a video?
But assuming, for the sake of argument, that her testimony does consist of
opinion testimony, the court did not abuse its discretion in finding that it was helpful for
the jury. Detective Ramirez testified she watched the video at least 50 times and that
subsequent viewings revealed details she had not picked up on at first. While it is true, as
defendant argues, that the jury could have watched the video repeatedly and picked those
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details up on their own, the standard is not whether the testimony was essential. It’s
whether it was helpful. Here, the jury was able to speed up the process of teasing out
obscure details in the video with the aid of Detective Ramirez’s testimony. That was
helpful.
Our holding is consistent with federal caselaw on the narration of a video.
In U.S. v. Torralba-Mendia (9th Cir. 2015) 784 F.3d 652, where the defendant was
charged with a conspiracy to smuggle immigrants, an immigration officer was permitted
to narrate surveillance videos “showing vehicles dropping off and picking up people . . . .
He told the jury the duration of time lapses in the videos, pointed out the vehicles’
identifying marks, tied the cars to various conspirators, and counted the number of people
exiting and entering different vehicles.” (Id. at pp. 657–658.) The court held that “an
officer who has extensively reviewed a video may offer a narration, pointing out
particulars that a casual observer might not see.” (Id. at p. 659.) It held that the officer’s
narration in that case “helped the jury understand the import of the videos.” (Id. at p.
660; see U.S. v. Begay (9th Cir. 1994) 42 F.3d 486, 503 [permitting narration of a video
where officer had viewed it 100 times, and stating, “To have the jury do likewise would
be an extremely inefficient use of the jury’s and the court’s time.”]) 2 Similarly, here,
Detective Ramirez’s testimony helped the jury process the details of the surveillance
video.
Lastly, defendant contends the probative value of Detective Ramirez’s
testimony was substantially outweighed by its prejudicial effect under Evidence Code
section 352. However, this argument only serves to highlight a glaring flaw in
defendant’s overall evidentiary argument: the total lack of prejudice. Defendant argues,
“this testimony created a serious risk of causing undue prejudice and confusion because,
once the jurors heard this testimony, they were likely to defer to the officer’s opinions
2 Rule 701 of the Federal Rules of Evidence (28 U.S.C.), concerning lay
opinion testimony, is essentially the same as our Evidence Code section 800.
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about what was shown in the video instead of properly making their own independent
assessment of the video.” But defendant has not pointed to any portion of Detective
Ramirez’s testimony that is even contested, much less wrong. So far as we can tell,
Detective Ramirez pointed out aspects of the video that everyone agrees on. Moreover,
the issue in this case was not whether defendant murdered Ortega—he did—but instead
whether he could form the requisite mental state for first degree murder. Detective
Ramirez’s narration of the video did not address that issue. We may only reverse for
evidentiary error if, after considering the entire record, we believe there was a reasonable
probability of a different outcome in the absence of the error. (People v. Watson (1956)
46 Cal.2d 818, 836) Detective Ramirez’s narration could not possibly have affected the
outcome.
Premeditation
Defendant does not challenge the sufficiency of the evidence of
premeditation. Instead, he contends the prosecutor committed misconduct by misstating
the law during closing argument. In particular, the prosecutor offered two examples of
premeditation: a yellow light example, and a second shot example.
Here is the relevant portion of the prosecutor’s argument: “Rarely do
people who kill have a good enough reason for what they did. This [i.e., premeditation]
isn’t my motive or what I think would be a good idea. It’s simply a consideration of
consequences and actions. And that the decision to kill is made during the course of
killing, if not wholly before. [¶] Some examples of this are the difference between
shooting someone a single time and pulling the trigger a second time. [¶] The decision a
person makes when approaching a yellow light as it may be likely to phase red. A
weighing of consequences. Am I going to make it? Am I going to be involved in an
accident? Am I going to get a ticket? I look to the left. I look to the right. And I go for
it.” Defense counsel did not object to these examples. Instead, defense counsel
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specifically addressed the yellow light example in his closing argument: “Now, I agree,
we can make decisions very carefully, but the example of running through a yellow light
is not something that we typically weigh and consider carefully. We kind of do it
impulsively; right? [¶] We don’t really think about it. We just do it. Deciding who
you’re going to marry. Deciding what you’re going to serve at a dinner party. That’s
more carefully considered and weighed.”
“‘Under California law, a prosecutor commits reversible misconduct if he
or she makes use of “deceptive or reprehensible methods” when attempting to persuade
either the trial court or the jury, and it is reasonably probable that without such
misconduct, an outcome more favorable to the defendant would have resulted.’” (People
v. Fuiava (2012) 53 Cal.4th 622, 679.) “When a claim of misconduct is based on the
prosecutor’s comments before the jury, ‘“the question is whether there is a reasonable
likelihood that the jury construed or applied any of the complained-of remarks in an
objectionable fashion.”’” (People v. Friend (2009) 47 Cal.4th 1, 29.)
Generally, “[a] defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion, and on the same ground, the defendant objected to
the action and . . . requested that the jury be admonished to disregard the perceived
impropriety.” (People v. Thornton (2007) 41 Cal.4th 391, 454.) But a “defendant whose
counsel did not object at trial to alleged prosecutorial misconduct can argue . . . that
counsel’s inaction violated the defendant’s constitutional right to the effective assistance
of counsel.” (People v. Lopez, supra, 42 Cal.4th at p. 966.) Counsel’s ineffective
assistance requires reversal if counsel’s performance was deficient and caused prejudice.
(Ibid.) Defendant once again claims ineffective assistance of counsel. We elect to
address the merits.
We see no error in the yellow-light example. At least in the way the
prosecutor framed it, if someone were to go through the decision-making process the
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prosecutor described, the decision to proceed through the intersection would be
premeditated.
Defendant cites People v. Avila (2009) 46 Cal.4th 680 for the proposition
that this example is improper, but he reads too much into that decision. The Supreme
Court’s exceedingly brief discussion of the issue consists of the following: “Nor,
contrary to defendant’s assertion, did the prosecutor argue that ‘the “cold, calculated”
judgment of murder is the equivalent of deciding whether to stop at a yellow light or
proceed through the intersection.’ Rather, the prosecutor used the example of assessing
one’s distance from a traffic light, and the location of surrounding vehicles, when it
appears the light will soon turn yellow and then red, and then determining based on this
information whether to proceed through the intersection when the light does turn yellow,
as an example of a ‘quick judgment’ that is nonetheless ‘cold’ and ‘calculated.’ He then
immediately said, ‘Deciding to and moving forward with the decision to kill is similar,
but I’m not going to say in any way it’s the same. There’s great dire consequences that
have a difference here.’” (Id. at p. 715.) From this offhand discussion, defendant
extracts the principle that it is improper to analogize premeditation to a yellow light
unless it is accompanied by the caveat that going through a yellow light is less serious
than murder. We are not sold. The only thing the Avila court said was that the
prosecutor did not argue that going through a yellow light is the “equivalent” of murder.
The prosecutor in our case did not draw such an equivalence either. It was obviously an
analogy. Avila is no help to defendant.
The second-shot example is on shakier footing. A second shot does not
necessarily demonstrate premeditation. As defendant puts it, “this could happen almost
instantaneously, with merely one additional twitch of the finger.” On the other hand, the
prosecutor’s example was not a complete misstatement of the law—there are some cases
where the number of shots fired, coupled with other circumstances, does suggest
premeditation. (E.g. People v. Welch (1999) 20 Cal.4th 701, 759 [second shot tended to
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show premeditation]; People v. Villegas (2001) 92 Cal.App.4th 1217, 1224 [firing six
shots tended to show premeditation].) The example is an ambiguous one that we would
not encourage prosecutors to use in the future without more context.
Even so, any error was harmless under the circumstances here. The
prosecutor mentioned the second-shot example once, briefly, in closing argument, and
repeated it, equally briefly, in rebuttal. He did not dwell on the example. Nor is the
example particularly germane to this case. This is not a gun case. Moreover, defendant’s
argument was that his mental health problems precluded him from premeditating. The
second-shot example has no bearing on that issue. Additionally, defendant does not
contend the jury was improperly instructed. Thus we presume the instructions were
correct. Under these circumstances, the second-shot example could not have swayed the
outcome of the trial.
Our resolution of this issue resolves the remainder of the appeal.
Defendant’s final argument is that the evidence did not support a lying-in-wait theory of
first-degree murder. But even if that is true, the jury made a separate finding on
premeditation, and that finding independently supports the verdict. (Pen. Code, § 189,
subd. (a) [“All murder that is perpetrated by means of . . . lying in wait . . . or by any
other kind of willful, deliberate, and premeditated killing . . . is murder of the first
degree” (italics added).) Accordingly, the lying-in-wait theory, even if unsupported, did
not affect the outcome of the trial. In the absence of prejudice, it cannot be reversible
error.
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DISPOSITION
The judgment is affirmed.
IKOLA, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MOORE, J.
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