People v. Sivongxxay, S078895

CourtUnited States State Supreme Court (California)
Writing for the CourtCantil-Sakauye, C.J.
Citation396 P.3d 424,3 Cal.5th 151,219 Cal.Rptr.3d 265
Parties The PEOPLE, Plaintiff and Respondent, v. Vaene SIVONGXXAY, Defendant and Appellant.
Decision Date19 June 2017
Docket NumberS078895

3 Cal.5th 151
396 P.3d 424
219 Cal.Rptr.3d 265

The PEOPLE, Plaintiff and Respondent,
Vaene SIVONGXXAY, Defendant and Appellant.


Supreme Court of California

Filed June 19, 2017

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Douglas Ward, Deputy State Public Defender, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Sean M. McCoy, Ryan B. McCarroll and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

219 Cal.Rptr.3d 272

Cantil-Sakauye, C.J.

3 Cal.5th 157

Following a bench trial, defendant and appellant Vaene Sivongxxay was convicted of one count of first degree murder (Pen. Code, § 187 ),1 13 counts of robbery (§§ 211, 212.5), and two counts of attempted robbery (§§ 664, 211, 212.5). The trial court found true the special circumstance allegation that defendant committed the murder during the commission of a robbery. (§ 190.2, subd. (a)(17)(A).) At the conclusion of the penalty phase bench trial, the court imposed a verdict of death.

396 P.3d 430

This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) We affirm the judgment in its entirety.

3 Cal.5th 158


Defendant was tried jointly with codefendant Oday Mounsaveng. Both defendants were tried by a judge sitting without a jury.

A. Guilt Phase

1. Prosecution Evidence

Defendant and Mounsaveng committed a series of robberies in Fresno between July and December 1996.

a. Thanh Tin Jewelry Attempted Robbery

On July 31, 1996, Mounsaveng walked into the Thanh Tin Jewelry store, asked to examine a gold chain, and then left. He returned with defendant about an hour later. The men looked around for a long time without buying anything. Liem Phu Huynh, the owner of the jewelry store, asked the men why they were taking so long. Mounsaveng and defendant claimed they were brothers and were waiting for their sister to arrive. Eventually, they left.

When defendant and Mounsaveng returned to the store later that afternoon, Huynh was working in a back room, and his wife Phung Ngoc Ho was behind the sales counter. After asking to examine several items, Mounsaveng pulled a handgun out of his waistband, grabbed Ho by the collar, and pointed the gun at her. Huynh, who was watching from the back room, set off an alarm. Mounsaveng and defendant fled.

b. First JMP Mini-Mart Robbery

On the afternoon of August 16, 1996, Bobbie Her was working behind the counter at her parents' convenience store, JMP Mini-Mart. Mounsaveng entered and asked whether the store cashed checks. When Bobbie answered that it did, Mounsaveng left. He eventually returned with defendant, and the two men milled about the store. Bobbie's father Xeng Wang Her arrived and began restocking drinks in the store's refrigerator case. Defendant walked up to Xeng, pointed a handgun at him, and forced him to walk toward the cash register. Defendant then forced Xeng to lie down and kicked him in the back of the head. Meanwhile, Mounsaveng jumped over the counter and forced Bobbie to open the cash register. Mounsaveng and defendant took all of the money in the store, ripped a cordless phone off the wall, and then fled in a blue pickup truck.

c. Phnom Penh Jewelry Robbery

On October 10, 1996, defendant entered the Phnom Penh Jewelry store. Mounsaveng followed a few minutes later and asked the store's owner, Kee

3 Cal.5th 159

Meng Suy, to repair a Buddha pendant. Suy recognized Mounsaveng because he had brought in the same pendant for repair a few months before. Suy took the pendant to his workbench in the store's back room. While Suy

219 Cal.Rptr.3d 273

was working, his wife Suntary Heng showed Mounsaveng some other pieces of jewelry. Suy finished repairing the pendant and handed it back to Mounsaveng, who said he was not satisfied with the work and asked Suy to do it again. Suy returned to his work bench. Heng then took the couple's two young children, who were at the store that day, into the back room to get some food.

At that point, defendant and Mounsaveng forced their way into the back room, pointed guns at Suy's head, and told him to "stay still." Defendant and Mounsaveng punched Suy, pushed him to the floor, and used tape and an extension cord to bind his limbs and cover his mouth and eyes. Both men then punched, kicked, and stomped Suy as Heng and the couple's two children watched. Mounsaveng demanded Suy's gun and the videotape from the store's security camera, but Heng explained he had no gun and the camera was broken. Eventually, Suy lost consciousness. As Mounsaveng and defendant cleared out the store's safe and the jewelry in its display cases, Heng activated a silent alarm. The two men fled in a light blue Honda.

d. Second JMP Mini-Mart Robbery

Mounsaveng and defendant returned to the JMP Mini-Mart on December 14, 1996. Xeng Wang Her was working in the store

396 P.3d 431

with his wife, Phayvane Boulome, and there were five or six customers inside. Upon entering the store, both Mounsaveng and defendant pulled out guns, told the customers to lie on the ground, and demanded that Xeng and Boulome open the cash register. Mounsaveng took money from the cash register and also picked up Xeng's gun, which was underneath the counter. Mounsaveng then forced Xeng into a back room, where Mounsaveng took cigarettes and change. After that, Mounsaveng grabbed Boulome and demanded that she open a second cash register, but she explained it was broken. Before leaving, Mounsaveng and defendant took money and jewelry from the customers at gunpoint. In the course of robbing the customers, defendant kicked an elderly woman in the mouth. One customer recalled seeing an unoccupied white car outside the store with its engine running.

e. Sean Hong Jewelry Robbery and Murder

In November 1996, defendant sold some rings and other items to the Sean Hong Jewelry store. He also left a Buddha pendant to be repaired.

On December 19, 1996, three days after the second JMP Mini-Mart robbery, Mounsaveng and defendant paid a visit to the Sean Hong store. Seak

3 Cal.5th 160

Ang Hor, the wife of store owner Henry Song, was working behind the sales counter. Hor told defendant that his Buddha pendant was ready to be picked up, but he said he did not have the money to pay for it. Mounsaveng asked to see the pendant anyway. Song retrieved the pendant from a safe in the store's back room and came out to show it to Mounsaveng and defendant.

After the men were finished looking at the pendant, Song started walking toward the back room. Mounsaveng pulled out a gun and screamed "give the money and gold." Defendant also brandished a gun. Defendant and Mounsaveng forced Song and Hor into the back room; Mounsaveng then left and closed the door. Defendant demanded that Hor open the safe, but she refused. Song attempted to grab defendant's gun, and the two men engaged in a hand-to-hand struggle. Mounsaveng returned to the back room and beat Song on the head with his gun. Hor pressed a silent alarm button, prompting Mounsaveng to pull her out of the back room. Once in the

219 Cal.Rptr.3d 274

front area of the store, Hor kicked the wall in an effort to alert the business owner next door. At some point, she heard Mounsaveng say "let's go." Defendant forced Hor to give him cash from her purse. He also smashed a display case and took jewelry.

After Mounsaveng and defendant left, Hor found her husband lying on the floor of the back room with blood coming out of his mouth. Song died within the hour. The cause of death was perforation of the heart and lungs from three gunshot wounds.

Hor did not see either of the robbers shoot her husband, nor did she recall hearing the gunshots. However, the robbery was partially captured on the store's video camera. A Fresno Police Department detective testified that in reviewing a video of the incident, he could identify a moment when several gunshots were audible. At that moment, defendant and Song were not in the camera's frame, but Mounsaveng and Hor were. Mounsaveng was pointing his gun toward the location where defendant and Song were fighting. After the shots were fired, Mounsaveng moved out of the frame and toward the back room, where defendant and Song had been fighting. Ballistics evidence showed that all of the bullets were fired from the same gun. In the video, one of the defendants is heard to say, "shoot, shoot."

Defendant was arrested on February 12, 1997, and agreed to be interviewed by a Fresno Police Department detective. He initially denied involvement in the robberies. However, after the detective showed him stills from the Sean Hong Jewelry store's video camera, defendant admitted he took part in the robbery. At first, he claimed Mounsaveng was the one who shot Henry Song. Defendant described his struggle with Song and claimed that Song hit him on the head with a chair. But when the detective asked how the struggle

3 Cal.5th 161

ended, defendant confessed that he, not Mounsaveng, had shot Song. He apologized for lying at the outset of the interview and said he was sorry to Song's family for what he had done. Defendant also told the detective that Mounsaveng forced

396 P.3d 432

him to rob the Sean Hong Jewelry store and that he was so high on cocaine that day he could hardly think.

2. Defense Evidence

A toxicologist who screened defendant the day after his arrest testified that his blood tested positive for alcohol and cocaine. The manager of an apartment building located near the JMP Mini-Mart (Mini-Mart) testified that on December 14, 1996, the day of the second Mini-Mart robbery, he saw two teenagers running down the street, one of whom had a ponytail. Police later found a stolen white Toyota Camry in the parking lot of the apartment building. An officer who tested latent fingerprints from the Thanh Tin Jewelry store and the second Mini-Mart robbery testified that none of...

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