People v. Luc CA1/4

Filed 3/5/21 P. v. Luc CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,
A153870
v.
BINH T. LUC, (City & County of San Francisco
Super. Ct. No. 223799)
Defendant and Appellant.

Defendant Binh T. Luc appeals a judgment convicting him of five
counts of first degree murder, five counts of attempted robbery and two
counts of residential burglary, and sentencing him to multiple, consecutive
terms of life in prison without the possibility of parole. The bulk of
defendant’s appellate briefing is devoted to the contention that his murder
convictions must be reversed because of statutory amendments to the felony-
murder rule that were enacted after his trial. The California Supreme Court
has recently held, however, that this issue is not cognizable on appeal and
must be raised in the first instance by a petition for relief in the trial court.
(People v. Gentile (2020) 10 Cal.5th 830, 853-854.) What remains are
defendant’s arguments that the jury was not properly instructed on aider and
abettor liability for premediated, willful and deliberate murder, and that
there is no substantial evidence to support his convictions for premediated,
willful and deliberate murder, three of his five convictions for attempted

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robbery and one of his burglary convictions. Defendant also asserts that the
court relied on an unsupported aggravating factor in imposing consecutive
terms, and that the case must be remanded for resentencing so that the court
may exercise its discretion to strike his prior conviction enhancements and
conduct a hearing on his ability to pay the $10,000 restitution fine imposed
by the court. We agree that three convictions for attempted robbery must be
reversed based on a lack of substantial evidence and that the matter must be
remanded for resentencing but affirm the judgment in all other respects.
BACKGROUND
Defendant was charged with five counts of murder (Pen. Code,1 § 187,
subd. (a)) with special circumstances of multiple murders (§ 190.2,
subd. (a)(3)), murder in the commission of robbery or attempted robbery
(§ 190.2, subd. (a)(17)(A)), murder in the commission of burglary (§ 190.2,
subd. (a)(17)(G)), and lying in wait (§ 190.2, subd. (a)(15)) as to one of the
counts; five counts of first degree residential robbery (§ 211); five counts of
attempted first degree residential robbery (§§ 644, 211); and two counts of
first degree residential burglary (§ 459) when a person other than an
accomplice was present in the residence (§ 667.5, subd. (c)(21)). With respect
to each of the counts, the information alleged that defendant personally used
a deadly weapon. (§ 12022, subd. (b)(1).) Four prior felony convictions were
also alleged. (§ 667, subds. (a)(1), (d), (e); § 1170.12, subds. (b), (c))
At trial, the prosecutor argued that defendant went to Vincent Lei’s
home, lured him back into his house, then alone or with accomplices killed
Lei, his wife, mother, father and sister, and stole money from their house.
Defendant disputed his participation in the crimes and argued that the
murders were committed by multiple other persons as gang, loan-shark style

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

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killings recriminating for Lei’s failure to pay loan shark or drug debts. The
following evidence was offered at trial:
On the morning of March 23, 2012, police officers responding to a 911
call found five dead bodies in a home on Howth Street in San Francisco. The
home consisted of the main house with an upstairs and an in-law unit
accessed from the ground level. Lei’s wife was found in the living area of the
in-law unit. His parents were found in the garage. Lei was found on the
ground level entryway to the upstairs unit. Lei’s sister was found upstairs in
her bedroom.
The victims had been badly beaten. All of the bodies had multiple skull
fractures with small semi-circular abrasions to the heads probably caused by
a hammer and each body’s wrist had been slit to the bone. The crime scene
was covered in blood, paint, water, and gray powdered concrete mix. There
were empty bottles of bleach, cleaners, vegetable oil, paint, and other liquids
at various locations throughout the building. Swabs of possible blood were
taken throughout the crime scene, which was also processed for fingerprints.
A witness reported seeing a woman, later identified as the relative of
the victims who called the police, standing in front of the house the morning
after the murders “screaming” into her cell phone that “the money had been
taken.” When the relative was subsequently asked about the missing money,
she denied saying the money was gone and claimed to know nothing about
money kept at the house.
Two friends and colleagues of Lei testified that they were with Lei at
11:00 p.m. on March 22, when he received a phone call from his wife. They
heard Lei say, “Who is looking for me?” and “Ah, Ping” and “What does he
want?” and “Let me talk to him.” Lei asked what there was to talk about and
said he would be home soon. Then to his wife he repeated that he would be

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home soon. After the call, Lei said that Ping was looking for him and was
waiting for him at his home. Both witnesses knew defendant by his
nickname Ping and identified him from police photos. Lei left to return home
about 10 to 20 minutes after the phone call ended. When Lei failed to meet
these witnesses the following day as planned, they went to his house and saw
the police. Concerned about Lei, they called defendant who denied having
seen Lei the night before. After speaking with defendant, they immediately
contacted the police.
Defendant was arrested at a motel on March 24. Officers found $6,050
in defendant’s rear pants pocket and $518 in his wallet. Defendant’s car was
searched and swabs of possible blood and paint were collected. Defendant’s
residence was also searched. In the garage, officers found a bag containing a
wet pair of jeans with blood and paint stains, along with a wet white shirt
with paint stains the same color as the paint at the Howth Street house. Near
the bag was a bleach bottle similar to the ones at the Howth Street house
that appeared to have bloodstains on it.
The jeans found in defendant’s garage were swabbed and DNA found
on the jeans matched defendant’s DNA profile, Lei’s DNA profile and the
profile of Lei’s mother. Swabs from bloodstains inside defendant’s vehicle
matched Lei’s profile. Swabs from bloodstains taken both upstairs and
downstairs inside the Howth Street house contained DNA matching both
defendant’s and Lei’s, often mixed in the same sample. Both defendant’s and
Lei’s blood was also found on an envelope found in a nightstand in Lei’s
bedroom. In addition, a latent fingerprint from a Windex bottle found on the
upstairs kitchen counter at the Howth Street house matched defendant’s left
index finger.

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 Finally, the prosecution played a tape recording of a conversation
between defendant and his brother in which defendant tells his brother he
was gambling until 10:00 p.m. the evening of the murders and lost money.
The defense presented testimony by two neighbors who, between 1:30
and 2:00 a.m. on March 22, heard a male voice coming from the Howth Street
house saying “get down on the ground now.” The speaker was using English
and did not have an accent.2 The defense also questioned the police
investigators regarding their investigation into information that Lei and his
wife had been involved in marijuana sales and that in 2009 and 2010 a hit
had been put out on Lei because of loan sharking at a casino. Finally,
defendant presented evidence to support his argument that the crime was not
financially motivated and that he was not in need of money. He introduced
evidence that many items of value remained in the house after the murder
including $2,000 in cash found in a jacket pocket and that at the time of the
murders he was earning $45.82 per hour as a plumber and pipefitter. To
explain the cash found on him at the time of his arrest, he introduced evidence
that a month before the murder he had cashed a refund check issued to him
by a retail store for $5,750.50.
In rebuttal, the prosecutor presented evidence of defendant’s gambling
history. According to a casino employee, the casino keeps a record of all
transactions over $2,000. The casino records showed that defendant
purchased $5,100 in chips between February 27 and March 23 but had no
record of any redemption during that time period.
The jury found defendant guilty of five counts of first degree murder,
five counts of attempted first degree residential robbery, and two counts of

Defendant, as well as many of the witnesses, primarily spoke
2

Mandarin Chinese and required an English interpreter.

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first degree residential burglary. The jury found true the allegation that a
person other than an accomplice was present during the burglaries and found
true the special circumstance allegations of multiple murders and of lying in
wait as to the murder of Lei. The jury found defendant not guilty of five
counts of first degree residential robbery and made no finding on the personal
use of deadly weapon enhancements or other special circumstances
allegations. The allegations on which no findings were made were dismissed
by the prosecution. The court found the allegations regarding defendant’s
four prior felony convictions to be true.
Defendant was sentenced to five consecutive terms of life without the
possibility of parole for each of the murders. The court imposed one five-year
prior felony conviction enhancement on each of the murder counts but stayed
the remainder. The court also stayed the terms of 25 years to life imposed for
the attempted robberies and the burglaries.
Defendant timely filed a notice of appeal.
DISCUSSION
1. Defendant is not entitled to relief under Senate Bill No. 1437 on his
direct appeal.
At trial, the prosecution argued that defendant was guilty of first
degree murder either because he personally murdered or aided and abetted
in the premediated, willful and deliberate murders of the five victims or
under the felony murder rule, because the murders were committed in the
course of a burglary or attempted robbery.
At the time of defendant’s trial, “under the former felony-murder rule a
defendant could be convicted of murder without a finding of malice if a victim
was killed during an underlying ‘predicate’ felony.” (People v. Prado (2020) 49
Cal.App.5th 480, 486, citing § 189 & CALCRIM No. 540A [“A person . . . may

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be guilty of felony murder even if the killing was unintentional, accidental, or
negligent.”].) Senate Bill No. 1437, effective in 2019, “ ‘amend[ed] the felony
murder rule . . . to ensure that murder liability is not imposed on a person
who is not the actual killer, did not act with the intent to kill, or was not a
major participant in the underlying felony who acted with reckless
indifference to human life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).)
Substantively, Senate Bill 1437 accomplishes this by amending [Penal Code]
section 188, which defines malice, and [Penal Code] section 189, which
defines the degrees of murder, and as now amended, addresses felony murder
liability.” (People v. Martinez (2019) 31 Cal.App.5th 719, 723.)3 Senate Bill

3 Section 188 now reads in relevant part: “(a) For purposes of Section
187, malice may be express or implied. [¶] . . . [¶] (3) Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder, a principal
in a crime shall act with malice aforethought. Malice shall not be imputed to
a person based solely on his or her participation in a crime.” Section 189 now
reads in relevant part: “(a) All murder that is perpetrated by means of a
destructive device or explosive, a weapon of mass destruction, knowing use of
ammunition designed primarily to penetrate metal or armor, poison, lying in
wait, torture, or by any other kind of willful, deliberate, and premeditated
killing, or that is committed in the perpetration of, or attempt to perpetrate,
arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train
wrecking, or any act punishable under Section 206, 286, 287, 288, or 289, or
former Section 288a, or murder that is perpetrated by means of discharging a
firearm from a motor vehicle, intentionally at another person outside of the
vehicle with the intent to inflict death, is murder of the first degree. [¶] . . .
[¶] (e) A participant in the perpetration or attempted perpetration of a felony
listed in subdivision (a) in which a death occurs is liable for murder only if
one of the following is proven: [¶] (1) The person was the actual killer.
[¶] (2) The person was not the actual killer, but, with the intent to kill, aided,
abetted, counseled, commanded, induced, solicited, requested, or assisted the
actual killer in the commission of murder in the first degree. [¶] (3) The
person was a major participant in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d) of Section
190.2.”

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No. 1437 also adds section 1170.95, “which allows those ‘convicted of felony
murder . . . [to] file a petition with the court that sentenced the petitioner to
have the petitioner's murder conviction vacated and to be resentenced on any
remaining counts. . . .’ (§ 1170.95, subd. (a).)” (Martinez, supra, at p. 723.)
Defendant argues his murder convictions must be vacated under
Senate Bill No. 1437 because the prosecution did not prove that he was the
killer and the jury did not make the necessary findings that he acted with the
intent to kill or was a major participant in the underlying felony who acted
with reckless indifference to human life. Our Supreme Court recently held
that relief under Senate Bill No. 1437 must be pursued first in the trial court
by way of a petition for resentencing under section 1170.95. (People v. Gentile,
supra, 10 Cal.5th at pp. 853-854.) In a supplemental letter brief, defendant
notes that Gentile does not address his argument that “[c]onstruing section
1170.95 as the exclusive remedy for accessing rights afforded under [Senate
Bill No.] 1437 unreasonably requires appellant to forfeit his constitutional
double jeopardy right and right to invoke collateral estoppel as a condition for
accessing those rights.” As the court recently explained in People v.
Hernandez (2021) 60 Cal.App.5th 94, “[a]n evidentiary hearing under section
1170.95 . . . does not implicate double jeopardy because section 1170.95
‘involves a resentencing procedure, not a new prosecution.’ [Citation.] The
retroactive relief provided by section 1170.95 is a legislative ‘act of lenity’
intended to give defendants serving otherwise final sentences the benefit of
ameliorative changes to applicable criminal laws and does not result in a new
trial or increased punishment that could implicate the double jeopardy
clause. [Citations.] And even if a section 1170.95 evidentiary hearing were
akin to a ‘reprosecution’ [citation] for purposes of the double jeopardy clause,
prohibitions against double jeopardy do not prevent a retrial where ‘a

8
conviction is not reversed on appeal for insufficient evidence but because of a
retroactive change in the law [such as section 1170.95].’ ” (Id. at p. 111, citing
People v. Lopez (2019) 38 Cal.App.5th 1087, 1115-1116, review granted Nov.
13, 2019, S258175.) For these reasons, we do not believe that defendant’s
argument would alter the Supreme Court’s conclusion that “Section 1170.95
is the exclusive avenue by which those previously convicted of murder under
now-invalid theories may obtain retroactive relief.” (See People v. Duchine
(2021) __ Cal.App.5th __, __ [2021 Cal.App. Lexis 114, p. *14].) Accordingly,
defendant’s argument that he is entitled to relief under Senate Bill No. 1437
is not cognizable in the present appeal. To the extent that the issues
addressed below implicate the felony murder rule, we discuss this doctrine
only as it existed at the time of trial. (People v. Anthony (2019) 32
Cal.App.5th 1102, 1158.)4

2. The jury was properly instructed on aider and abettor liability.

Defendant contends the trial court erred in instructing the jury,
pursuant to former CALCRIM No. 400, that an aider and abettor is “equally
guilty” as the actual perpetrator.5 He argues that the instruction was

4Defendant’s request that this court take judicial notice of Senate Bill
No. 1437 and Senate Concurrent Resolution No. 48 is denied as unnecessary
and irrelevant.
5The trial court instructed the jury: “A person may be guilty of a crime
in two ways. One, he or she may have directly committed the crime. I will call
that person the perpetrator. Two, he or she may have aided and abetted a
perpetrator, who directly committed the crime. [¶] A person is guilty of a
crime whether he or she committed it personally or aided and abetted the
perpetrator. Under some specific circumstances, if the evidence establishes
aiding and abetting of one crime, a person may also be found guilty of other
crimes that occurred during the commission of the first crime. [¶] Those who
aid and abet a crime and those who directly perpetrate the crime are

9
prejudicially misleading because “[t]here was evidence suggesting that others
engaged in brutal gangland fashion violence killing five Lei family members,
but none that [he] killed any victims. Yet, based on [his] aiding and abetting,
jurors were misdirected that ‘equally guilty’ was the governing principle to
find him guilty.” Defendant suggests that CALCRIM No. 400 as given
improperly allowed the jury to convict him of first degree murder based on
the mental state of his accomplices, instead of his own mental state.6
Our Supreme Court has held that the “equally guilty” language used in
former CALCRIM No. 400 “generally stated a correct rule of law.” (People v.
Johnson (2016) 62 Cal.4th 600, 639-640 (Johnson), quoting People v. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 433; see also People v. Samaniego
(2009) 172 Cal.App.4th 1148, 1165 [former CALCRIM No. 400 is “generally
correct in all but the most exceptional circumstances.”] (Samaniego).) In
Johnson, supra, 62 Cal.4th at page 640 and Samaniego, supra, 172
Cal.App.4th at page1163 the courts acknowledged, however, that confusion
might occur if defendant is charged as an aider and abettor and there is
evidence that the aider and abettor had a less culpable mental state than the
perpetrator.

principals and are equally guilty of the commission of that crime. [¶] You
need not unanimously agree, nor individually determine, whether a
defendant is a direct perpetrator or an aider and abettor. You need not choose
among the theories, so long as each of you is convinced of his guilt as either a
direct perpetrator or as an aider and abettor beyond a reasonable doubt.”
(Italics added.)
6 Defendant also suggests the instruction was improper because it
undermined the stated intentions of Senate Bill No. 1437 by allowing the
prosecutor to argue that defendant was guilty of felony murder “without any
of the elements needed to establish [his] culpability as an aider/abettor under
section 189, subdivision (e), added by SB 1437.” As set forth above, this
argument is not cognizable on appeal.

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 In Johnson, supra, 62 Cal.4th at page 640, the court found that the
instruction was not misleading where there was no evidence suggesting that
defendant’s mental state was less culpable than that of the actual killer. The
court added that there was nothing “in the record suggesting that the jurors
may have believed the ‘equally guilty’ language in former CALCRIM No. 400
required them to determine defendant's criminal liability based on [his
accomplice’s] mental state at the time of the killing, rather than considering
defendant’s own mental state.” (Ibid.) The court also noted that the jury was
instructed with CALCRIM No. 401, which informed the jury that “for them to
find defendant guilty of murder as an aider and abettor the prosecution must
prove that defendant knew [the perpetrator] intended to kill [the victim], that
he intended to aid and abet [the perpetrator] in committing the killing, and
that he did in fact aid him in that killing, which would have cleared up any
ambiguity arguably presented by former CALCRIM No. 400’s reference to
principals being “ ‘equally guilty.’ ” (Id. at pp. 610-641.)
In Samaniego, supra, 172 Cal.App.4th 1148, the court found any
potential confusion in CALCRIM No. 400 harmless beyond a reasonable
doubt because the jury necessarily found defendant possessed the requisite
intent under other instructions. The court explained, “The jury necessarily
found that appellants acted willfully with intent to kill. It was instructed
regarding the multiple murder special circumstance in accordance with
CALCRIM No. 702 as follows: “If the defendant was not the actual killer then
the People have the burden of proving beyond a reasonable doubt that he
acted with the intent to kill for the special circumstance of multiple murder
convictions to be true. If the People have not met this burden, you must find
this special circumstance has not been proved true for this defendant.’ (Italics
added.) The jury found the special circumstance to be true, thereby

11
necessarily finding that each appellant had the specific intent to kill.”
(Samaniego, supra, at p. 1165.)
As in Johnson and Samaniego, there is no basis for confusion in this
case and any potential error in this regard undoubtedly was harmless. There
is no evidence suggesting that defendant’s mental state was any different, let
alone less culpable, than that of any of his unidentified accomplices. To the
contrary, the evidence that defendant actively lured Lei back to the house
supports a reasonable inference that he was more culpable than his
unidentified accomplices. As in Johnson, the jury in this case was instructed
that it must find the requisite specific intent under CALCRIM No. 401.
Moreover, defendant concedes that the jury did find defendant had an intent
to kill Lei as shown in their true finding of the lying in wait allegation and
the related instruction. (CALCRIM No. 728.) Nothing in the record suggests
defendant’s intent varied between the victims. To the contrary, each victim
was killed in the same fashion with likely the same weapons. Similarly, as in
Samaniego, the jury in this case also found true the multiple murder special
circumstance allegation, which required it to find that he acted with the
intent to kill.7 Accordingly, the jury necessarily found that defendant

7 As defendant notes, the jury was also instructed pursuant to
CALCRIM No. 721 that to find the multiple murder circumstance true, it
must find that the defendant has been convicted of at least one charge of first
degree murder and at least one additional charge of either first or second
degree murder. Contrary to defendant’s argument, the jury was not likely to
disregard CACRIM No. 702 and rely solely on CALCRIM No. 721. CALCRIM
No. 702 is the more specific instruction that is applicable only after the jury
determines that defendant is guilty of murder but was not the actual killer.
(See People v. Burton (2018) 29 Cal.App.5th 917, 925 [“We must consider the
instructions together as a whole, to determine whether it is reasonably likely
a jury would interpret an instruction in a particular way, because we
presume jurors understand and correlate all of the instructions.”].)

12
intended to kill the victims. Any possible error was harmless beyond a
reasonable doubt.

3. Substantial evidence supports defendant’s murder convictions.

As set forth above, the case was submitted to the jury on two theories of
liability—willful, premeditated, deliberate murder and felony murder—and
the jury was instructed that although they must “all agree that the People
have proved that defendant committed murder,” they did “not need to agree
on the same theory.” Because the jury did not return a finding on the special
circumstance allegations that the murders occurred in the course of the
burglaries or attempted robberies, we cannot say that the jury necessarily
relied on one theory or the other.
On appeal, defendant does not challenge the sufficiency of the evidence
in support of his conviction under the felony-murder rule as it existed at the
time of trial. He contends, however, that his convictions must be reversed
because there is no substantial evidence that he committed willful,
premeditated, deliberate murder. Specifically, he argues that there is no
direct evidence and only limited circumstantial evidence that he was the
actual killer of all five victims and no substantial evidence that he aided and
abetted in the murders.
Assuming without deciding that the evidence is insufficient to establish
that defendant personally murdered each victim, ample evidence supports his
conviction based on aiding and abetting. As discussed above, the jury was
required to find that “1. The perpetrator committed the crime; [¶] 2. The
defendant knew that the perpetrator intended to commit the crime;
[¶] 3. Before or during the commission of the crime, the defendant intended to
aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The

13
defendant’s words or conduct did in fact aid and abet the perpetrator's
commission of the crime.” (CALCRIM No. 401.)
There is no dispute that the victims were murdered. The evidence
establishes that defendant went to the victims’ home before the murders and
lured Lei back to the house. Evidence that Lei was found lying on top of his
wallet with his keys nearby in the entry way strongly supports the inference
that he was ambushed and killed upon entry. As the prosecutor explained in
closing, the fact that blood from Lei’s mother was found on Lei’s body
suggests that she had already been killed and her blood transferred to Lei by
defendant or an accomplice. Similarly, Lei’s blood was found upstairs in the
room where his sister’s body was found, suggesting that she was killed last.
Defendant’s fingerprint on the Windex bottle found upstairs and his blood
found on the hallway wall and upstairs light switch pole confirms that he
went upstairs. As the prosecutor argued in closing, Lei is the “nexus” or
connection to the upstairs crimes. Lei’s blood “did not just jump upstairs . . . .
Defendant is transferring, transporting [Lei’s] blood.” Finally, contrary to
defendant’s suggestion, the Attorney General does not rely on “speculation
that [defendant] destroyed evidence showing he murdered the five victims.”
The paint found on his clothes and his fingerprint on the Windex bottle
directly connect him to the clean-up after the murders. The jury could
reasonably infer from this evidence that, even if defendant did not swing the
hammer that killed each victim, he knew that the perpetrator intended to kill
the victims and that he intended to and did aid and abet in the commission of
the murders.

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4. Substantial evidence supports defendant’s convictions for two but
not five counts of attempted robbery.

“Robbery is the felonious taking of personal property in the possession
of another, from his person or immediate presence, and against his will,
accomplished by means of force or fear.” (§ 211; People v. Bonner (2000) 80
Cal.App.4th 759, 763 (Bonner).) When property taken is jointly held by two or
more individuals, a defendant may be convicted of the robbery of each
individual subjected to force or fear. (Bonner, supra, at pp. 763-764.) “The
crime of attempt occurs when there is a specific intent to commit a crime and
a direct but ineffectual act done towards its commission. [Citation.] ‘ “An
attempt connotes the intent to accomplish its object, both in law . . . and in
ordinary language.” [Citation.]’ [Citation.] The act required must be more
than mere preparation, it must show that the perpetrator is putting his or
her plan into action. That act need not, however, be the last proximate or
ultimate step toward commission of the crime. [Citation.] Where the intent to
commit the crime is clearly shown, an act done toward the commission of the
crime may be sufficient for an attempt even though that same act would be
insufficient if the intent is not as clearly shown.” (Id. at p. 764.)
Here, defendant was charged with five counts of robbery and five
counts of attempted robbery. Defendant was acquitted of the robbery charges
but convicted of five counts of attempted robbery. On appeal, he concedes that
there is sufficient evidence to support his convictions with regard to Lei and
his wife. The evidence that defendant was in need of money and that he
searched their bedroom is sufficient to support the reasonable inference that
he harbored an intent to steal from Lei and his wife at the time of their
murders and that they were murdered as a means of taking their money.
(People v. Abilez (2007) 41 Cal.4th 472, 507-508 [evidence that defendant,
immediately after killing the victim, stole several items from her home is

15
relevant circumstantial evidence of his intent at the time of the murder];
People v. Lewis (2001) 25 Cal.4th 610, 643 [“Although the evidence is
circumstantial, the intent required for robbery . . . is seldom established with
direct evidence but instead is usually inferred from all the facts and
circumstances surrounding the crime.”].)
Defendant contends, however, there is no substantial evidence that he
intended to take money from Lei’s parents and sister at the time of their
murders. He argues that there is no physical or forensic evidence that he
entered the bedrooms occupied by Lei’s parents or sister or that he searched
those rooms for money. The Attorney General argues that it is “readily
inferable” based on the evidence that defendant tried to take money from Lei
and his wife that he “tried to take money from the other people present at the
scene.” The Attorney General continues, “[Defendant] did not need to leave
evidence of his presence in the upstairs bedrooms to permit the jury to make
its determinations that he was guilty of five counts of attempted robbery. The
victims were systematically beaten, the rooms were systematically looted, the
victims were systematically executed, and evidence of the crimes was
systematically destroyed.” Contrary to this argument, there is no evidence
that the upstairs bedrooms belonging to Lei’s parents and sister were
searched. That they were beaten in the same manner as Lei and his wife
sheds no light on whether he intended to steal from anyone other than Lei
and his wife. Accordingly, the convictions for attempted robbery under counts
6, 9, and 12 must be reversed.

5. Defendant was properly convicted of two counts of burglary.

The Howth Street property consisted of two residential units: the main
upstairs unit and an in-law unit in the basement. Defendant was convicted
under count 16 with the burglary of the downstairs in-law unit and under

16
count 17 with the burglary of the main living quarters upstairs. Defendant
contends that while the property may have had two units, it was treated by
the family as one residential unit so that he could be convicted of only one
count of burglary. (See People v. Garcia (2016) 62 Cal.4th 1116, 1119 [entry
with felonious intent into a structure and a room within that structure does
not permit multiple burglary convictions]; People v. Richardson (2004) 117
Cal.App.4th 570, 575 (Richardson) [“[B]urglary of different unlocked rooms in
a single-family residence constituted a single burglary.”].) We disagree.
In People v. Garcia, supra, 62 Cal.4th at pages 1119-1120, the court
explained, “Where a burglar enters a structure enumerated under section 459
with the requisite felonious intent, and then subsequently enters a room
within that structure with such intent, the burglar may be charged with
multiple burglaries only if the subsequently entered room provides a separate
and objectively reasonable expectation of protection from intrusion relative to
the larger structure. Such a separate expectation of privacy and safety may
exist where there is proof that the internal space is owned, leased, occupied,
or otherwise possessed by a distinct entity; or that the room or space is
secured against the rest of the space within the structure, making the room
similar in nature to the stand-alone structures enumerated in section 459.”
The court identified several “objective indications” or “characteristics” that
signify a “distinct possessory or security interest,” such as a “locked door to
an external space, a sign conveying restricted access to those present in the
external space, or the location of a room in relation to a public area.” (Id. at
pp. 1127, 1129.)
In Richardson, supra, 117 Cal.App.4th 570, defendant, who was
visiting his sister, entered the bedrooms of his sister and her roommate while
the occupants were not home to steal items and was convicted of two counts

17
of burglary. The court held that entry into the bedrooms of the two
roommates could not constitute separate burglaries. The court reasoned that
evidence that there were no locks on the bedroom doors and that the
defendant’s sister stored clothing in her roommate’s closet demonstrated that
the roommates did not have separate reasonable expectations against
unauthorized entry. (Id. at p. 575.) The court acknowledged that “the policy
of protecting occupants with reasonable expectations of separate protections”
may be advanced by convicting the defendant of separate burglaries if “he
formed the intent to burglarize the second bedroom after burglarizing the
first,” but that because there was no evidence regarding defendant’s intent,
two burglary convictions were inconsistent with the purpose of the burglary
statute. (Ibid.)
Here the evidence established that the property had two distinct
residential units. The in-law unit was entered from a separate entrance near
the garage on the ground level and the upstairs “main house” unit was
entered through a typical front door. Although the charging document listed
all five victims as occupants of both units, evidence recovered at the scene
suggested the bedroom in the downstairs in-law unit was occupied by Lei and
his wife and the two bedrooms in the upstairs unit were occupied by Lei’s
parents and sister. Contrary to defendant’s argument, the absence of
evidence that the entrance to the in-law unit was locked is not determinative.
After the murder and attempted robbery of the first four victims, all of
which occurred on the ground level of the home, defendant proceeded
upstairs to the room where Lei’s sister was killed. Lei’s sister had a
reasonable “expectation of privacy and safety” in the upstairs unit and, more
specifically, in her bedroom. (See People v. Sparks (2002) 28 Cal.4th 71, 87
[“[T]the 22-year-old victim, living in her family’s home, reasonably could

18
expect significant additional privacy and security when she retreated into her
own bedroom.”].)
Contrary to defendant’s argument and unlike in Richardson, imposing
liability for two burglaries does not “undermine the policy and purpose
underlying the concept of burglary.” Richardson recognized that “[t]he
purpose of the burglary laws is to forestall situations that are dangerous to
personal safety caused by the unauthorized entry of an intruder into an
inhabited dwelling” and that “a different burglary occurs each time the
perpetrator enters into a separate dwelling space if a new and separate
danger is posed to each of the occupants upon entry into each dwelling.”
(Richardson, supra, 117 Cal.App.4th at p. 574.) Viewing the evidence in the
light most favorable to the two verdicts, a rational trier of fact could have
concluded defendant formed a separate intent to murder Lei’s sister only
after killing and attempting to rob the other members of her family. Thus, he
entered the upstairs unit and specifically the sister’s bedroom with that
newly formed intent. Defendant’s entry into the upstairs dwelling unit posed
a new and separate danger to Lei’s sister. Accordingly, defendant’s two
burglary convictions were supported by sufficient evidence and consistent
with the policy underlying the burglary statute.

6. The case must be remanded for resentencing.

a. Senate Bill No. 1393
Defendant’s prison sentence included five 5-year section 667,
subdivision (a) enhancements. Defendant contends that as a result of Senate
Bill No. 1393, which became effective in 2019, we should remand this matter
so that the trial court can exercise its discretion to determine whether to
strike these enhancements. The Attorney General acknowledges this
argument is well-founded. We agree and will remand to permit the trial court

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to exercise its discretion under section 1385, subdivisions (a) and (c), as to
defendant’s section 667, subdivision (a) enhancements. We express no opinion
as to how the trial court should exercise that discretion. (People v. Garcia
(2018) 28 Cal.App.5th 961, 971.)
b. Aggravating Circumstances
The fact that a defendant was armed with or used a weapon at the time
of the commission of the crime is a factor the court may consider in exercising
its discretion to impose consecutive prison terms. (Cal. Rules of Court, rule
4.421(a)(2).) Here, although the jury was unable to reach a finding as to
whether defendant personally used a dangerous weapon in the commission of
the murders, at sentencing the court found that a preponderance of the
evidence supports the conclusion that defendant was armed with a weapon.8
The court relied on that factor, among others, to impose consecutive life
terms on each of the murder counts.
Defendant contends that there is no substantial evidence to support the
finding that he was personally armed with a dangerous weapon. The section
12022, subdivision (b)(1) sentence enhancement requires defendant be
personally armed with a deadly weapon. (Compare § 12022, subd. (b)(1)

8 Even when a jury finds a weapons enhancement not true, the court
may still find by a preponderance of the evidence that the defendant used a
weapon as an aggravating circumstance. (People v. Lewis (1991) 229
Cal.App.3d 259, 264; see also People v. Gragg (1989) 216 Cal.App.3d 32, 44
[“The fact prosecution evidence does not prove the guilt of the defendant on a
charge beyond a reasonable doubt does not rob that evidence of its
informative value, nor does it make any information gleaned from such
evidence unreliable.”]; People v. Santamaria (1994) 8 Cal.4th 903, 922 [“[T]he
jury’s not true finding on the enhancement allegation does not mean
defendant did not use the knife, only that there was a reasonable doubt that
he did.”].) In this case, the jury did not make a “not true” finding on the
dangerous weapon enhancement. It was simply unable to reach a unanimous
decision on that question.

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[enhancement applies to “person who personally uses a deadly or dangerous
weapon” in the commission of the crime] with § 12022, subd. (a)(1)
[enhancement for person who is “armed with a firearm” applies “to a person
who is a principal in the commission of a felony or attempted felony if one or
more of the principals is armed with a firearm, whether or not the person is
personally armed with a firearm.”].) The rules of court state merely that the
fact that “defendant was armed with or used a weapon at the time of the
commission of the crime” is a factor the court may consider. “ ‘A person is
“armed” with a deadly weapon when he simply carries a weapon or has it
available for use in either offense or defense.’ ” (People v. Garcia (1986) 183
Cal.App.3d 335, 350.)
The Attorney General argues that the murders were committed with
hammers and knives and that based on his presence and participation in the
crimes, “[t]he evidence strongly suggests that [defendant] wielded a hammer
or a knife during the commission of the murders when he either killed one or
more of the victims or aided and abetted their murders and injured himself
doing so.” We agree that substantial evidence establishes, at a minimum,
that the hammer and knife, if not personally used by defendant, were
“available for use in either offense or defense” by defendant.
In any event, the court relied on other factors to impose the consecutive
term, including that the crimes involved great violence, great bodily harm
and other acts disclosing a high degree of cruelty, viciousness and
callousness, that the manner in which the crimes were carried out indicated
planning and that defendant’s violent conduct indicates a serious danger to
society. Any one of these other factors was sufficient to justify consecutive
terms. (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1371 [“One aggravating
factor is sufficient to support the imposition of an upper term.”].)

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 c. Restitution Fine
Defendant contends that under People v. Dueñas (2019) 30 Cal.App.5th
1157, the trial court violated due process and imposed an excessive fine on
him when it ordered a restitution fine of $10,000 (§ 1202.4, subd. (b)(1))
without holding a hearing on his ability to pay. The Attorney General
disputes the merits of defendant’s argument but concedes that because this
case must be remanded for the court to exercise its discretion pursuant to
Senate Bill No. 1393, this court should also “remand the matter to the trial
court so that [defendant] may request a hearing and present evidence
demonstrating his inability to pay the fines, fees and assessments imposed by
the trial court.” (People v. Castellano (2019) 33 Cal.App.5th 485, 491.) We
agree.
DISPOSITION
Defendant’s conviction on counts 6, 9, and 12 are reversed and the
matter is remanded for resentencing. In all other respects the judgment is
affirmed.

POLLAK, P. J.

WE CONCUR:

STREETER, J.
TUCHER, J.

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