People v. Hajek

• Citation: 324 P.3d 88,58 Cal.4th 1144,171 Cal.Rptr.3d 234
• Decision Date: 23 July 2014
• Docket Number: No. S049626.,S049626.
• Court: United States State Supreme Court (California)
• Parties: The PEOPLE, Plaintiff and Respondent, v. Stephen Edward HAJEK and Loi Tan Vo, Defendants and Appellants.

58 Cal.4th 1144

324 P.3d 88

171 Cal.Rptr.3d 234

The PEOPLE, Plaintiff and Respondent,

v.Stephen Edward HAJEK and Loi Tan Vo, Defendants and Appellants.

No. S049626.

Supreme Court of California

May 5, 2014.

As Modified on Denial of Rehearing July 23, 2014.

See 5 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Trial, § 427 et seq.

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Alison Pease, Deputy State Public Defender, for Defendant and Appellant Stephen Edward Hajek.

Doron Weinberg and Kathryn K. Andrews, Palo Alto, under appointments by the Supreme Court; Law Offices of Doron Weinberg and Marilyn A. Waller for Defendant and Appellant Loi Tan Vo.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Nanette Winaker and Moona Nandi, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, J.

Defendants Stephen Edward Hajek and Loi Tan Vo were convicted of the 1991 murder of Su Hung (Pen.Code, § 187) ¹ as to which lying-in-wait and torture-murder special circumstances were found true (former § 190.2, subd. (a)(15), (18)). Additionally, defendants were convicted of four counts of premeditated attempted murder (§§ 664/187), one count of kidnapping (§ 207, subd. (a)), three counts of false imprisonment (§§ 236/237), one count of robbery (§ 211, 212.5, subd. (a)), and one count of first degree burglary (§§ 459, 460.1). Hajek was separately convicted of dissuading a witness. (§ 136.1, subd. (c)(1).) The jury also found true firearm use allegations as to Hajek and deadly or dangerous weapon use allegations as to Vo, in their commission of the murder, attempted murder, kidnapping, and false imprisonment counts. (Former §§ 12022, subd. (b), 12022.5, subd. (a).)

Following the penalty phase trial, the jury returned verdicts of death as to each defendant, which the trial court declined to modify. The court sentenced each defendant to death for the murder of Su Hung, and on the remaining counts, sentenced Hajek to life plus 21 years and Vo to life plus 9 years. This appeal is automatic.

For the reasons set forth herein, we reverse the lying-in-wait special-circumstance findings as to both defendants. (See post, pt. II.B.1.a.) We also order that the firearm use enhancements found true as to defendant Hajek be struck and replaced with deadly or dangerous weapon use enhancements. (See post, pt. II.B.1.d.) In all other respects, the death judgments are affirmed.

I. Facts

A. Guilt Phase

On the morning of January 18, 1991, defendants gained access to the Wang residence, where they held various members of the family hostage for several hours.² At some point, they killed Su Hung, the family's 73–year–old grandmother, who was visiting from Taiwan. The attack on the Wang family was in retaliation for a minor altercation a few days earlier between the family's teenage daughter, Ellen, defendant Hajek, and a girl named Lori Nguyen, who was a friend of both defendants. On the night before the attack, Hajek told another friend that he was going to the house of an unidentified girl who had threatened him. He said he planned to kill each member of her family while she watched and then kill her last. The next day, he and Vo went to the Wang residence, where the events transpired that led to the charges in this case.

1. Prosecution Evidence

a. The altercation between Hajek, Nguyen, and Ellen

On January 14, 1991, between 4:30 and 5:00 p.m., Hajek and his friend, Lori Nguyen, were sitting in front of a Baskin–Robbins store eating ice cream. Hajek was 18 years old and Nguyen was 15 or 16. Ellen, also 16, and six friends walked past the pair on their way to a Fry's Electronics store. Ellen had once been good friends with Nguyen, but they had had a falling out. She had never seen Hajek before. One of Ellen's friends, Tina Huynh, testified that Nguyen was “dogging” or giving them “a dirty look” as they passed. Huynh called Nguyen a “bitch,” and Nguyen responded in kind.

Subsequently, as Ellen and her friends crossed a parking lot, Hajek drove up in a white van and stopped. Nguyen was in the passenger seat. She and Huynh exchanged words and began to struggle, while Nguyen was still sitting in the car and Huynh was standing outside. Huynh's sister, Jacee, and then Ellen joined the fight with Nguyen. Noticing the car's ignition had been pulled out, Ellen yelled, “The car is picked,” meaning it had been stolen. Hajek exited the van, picked Ellen up, and threw her into some bushes. Ellen and Hajek cursed each other before Hajek and Nguyen drove off.

Hajek and Nguyen went to Hajek's house. At some point in the evening Ellen and Hajek spoke on the phone. Ellen asked Hajek if he had a problem with her or wanted to start something with her. The conversation ended with their screaming obscenities at each other. Ellen testified she had no further communication with Hajek, but Nguyen testified that Ellen made a series of “crank calls” to Hajek that evening and threatened to have friends of hers kill him. Nguyen testified that Hajek threatened Ellen in return and “probably” discussed getting revenge. At some point, while Nguyen was still at Hajek's house, defendant Vo showed up. Vo was present when some of the crank calls from Ellen to Hajek were made.

Vo and Hajek were very close friends and part of a group of friends that also included Nguyen. Vo harbored intense feelings for Nguyen that she did not reciprocate because she had a boyfriend. Hajek also had romantic feelings toward Nguyen that she did not return.

b. Hajek's conversation with Tevya Moriarty

On the evening of January 17, 1991, three days after the fight, Hajek telephoned Tevya Moriarty. Moriarty and Hajek had worked together at the Home Express during the summer of 1990. Moriarty had been on friendly terms with Hajek, though he was not a close friend. Moriarty asked him if he was going out with anyone. Hajek told her that he was going out with an Asian girl and that they had been involved in a fight after getting ice cream a few days earlier. He told her that he had pushed a girl into some bushes during the incident and that he wanted to get back at that girl. He said he was going to go to the girl's house and kill her and her family. Hajek told Moriarty he planned to kill the girl's family first and to kill her last because he “wanted to look in her eyes when he killed her.” He also said he was going to make the incident look like a robbery. Hajek said all this in a conversational tone of voice. Moriarty did not believe he was really planning to do these acts.

The next day, Moriarty saw a television report of the crimes at the Wang residence and told her parents about her conversation with Hajek. When she learned that Hajek was one of the culprits, she went to the police. Moriarty talked to the police on January 21, 1991, and told them it was her impression Hajek was going to enlist two other people to commit the murder and robbery. However, at trial, she could not recall what in the conversation had given her that impression and testified that Hajek spoke only of himself.

c. Hajek and Vo gain entry into the Wang residence

On January 18, 1991, the Wang family—parents Cary and Tony, and daughters Ellen and 10–year–old Alice—lived on Silver Leaf Road in San Jose. Also staying with them was 73–year–old Su Hung, Cary's mother, visiting from Taiwan. On the morning of January 18, only Su Hung and Alice were at home.

Around 10 a.m., Hajek and Vo came to the door. Alice answered it. They told her they wanted to see Ellen because they had a sweater for her. Alice told them Ellen was not home. Vo handed her the sweater, and they left. A few minutes later, defendants returned. When Alice answered the door, they said they wanted to write a note to Ellen. Alice testified she did not invite defendants inside the house, but “[t]hey just came in.” Alice gave them a pen and paper. Su Hung was in the kitchen. They wrote the note, and Alice put it on the sweater. They then called Alice over, and Hajek pointed a gun at her. Hajek told Alice to get her grandmother.

Alice had to use the bathroom. Alice testified Vo told her to take her grandmother with her. When Alice and Su Hung came out of the bathroom, Vo tied up Su Hung using rope from the laundry room, which he cut with scissors or a knife. He then blindfolded her. Su Hung was trembling but compliant. Vo took her upstairs while Hajek remained downstairs with Alice, watching cartoons. Although Hajek had put the gun in his waistband, Alice was frightened. Vo came downstairs, and then Hajek took Alice to the upstairs bathroom, where she remained for what seemed like a long time before defendants told her she could come out. While she was in the bathroom, she heard clattering noises, like marbles or coins. Vo took her downstairs; 10 minutes later Hajek followed. At some point, Alice's mother, Cary, called the house. Alice was allowed to answer the phone, but defendants told her to speak English.

Alice testified that Cary told her she was coming home and, as previously planned, she was going to take Su Hung to the beauty salon, and then the three of them would go out to lunch. Alice did not typically speak to her mother in English, and Cary asked if anything was wrong. Alice was frightened and said no. Sometime later, maybe a half-hour, Alice heard the garage door open. Vo went into the downstairs bathroom after taking a knife from the kitchen. Before he went into the bathroom, Vo told Alice to stay seated on the sofa and to try to calm her mother down.

Cary testified that when she entered the house through the garage, Vo came out of the bathroom, placed a hand over her mouth, and with the other hand held a knife to her throat. Vo told Cary not to scream, or he would kill her whole family. Both he and Hajek were wearing gloves. Cary was upset and frightened. She told Vo to put down his knife...