P. v. Kong CA4/2, E054664

Defendant Christian Kong was convicted after a jury trial of second-degree murder (count 1, lesser), three counts of attempted first-degree murder (counts 2-4), and a misdemeanor assault on a police dog (count 5).
The jury found true multiple circumstances alleging firearm use and great bodily injury.
The offenses arose from a December 2009 shooting in Desert Hot Springs, where Kong fired at a car carrying Melvin Hall, Troy Hill, Deondre Gholar, and Shayna Hill.
Cast evidence showed Kong armed and driving to a desert meeting, with no weapons in the car; a police dog later recovered a revolver from Kong’s shed.
Investigator Govier pursued Morris (a key witness) with extensive but ultimately unsuccessful efforts; Morris could not be located at trial.
Kong challenged (1) admission of Morris’s preliminary-hearing testimony and (2) various jury instructions (CALCRIM Nos. 505 and 3472), along with a motion for new trial and credits for presentence custody; the trial court denied, and the appellate court affirmed with modifications to custody credits.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the People exercise due diligence to secure Morris for trial?	People	Kong	Yes; the People’s diligent efforts were reasonable and Morris’s testimony was admissible.
Did CALCRIM No. 505 properly state self-defense law given subjective state of mind evidence?	People	Kong	CALCRIM No. 505 correctly stated the law; no reversible error.
Was CALCRIM No. 3472 proper to address provocation in self-defense?	People	Kong	No error; instruction properly framed provocation and self-defense under the evidence.
Did the newly discovered evidence warrant a new trial?	People	Kong	No abuse of discretion; evidence was cumulative and unlikely to change retrial outcome.
Was Kong entitled to presentence custody credits?	People	Kong	Yes; 630 days of actual custody credits were owed; abstract of judgment to be amended.

People v. Wilson, 36 Cal.4th 309 (Cal. 2005) (due diligence standard for unavailable witnesses; admissibility of prior testimony)
Chapman v. California, 386 U.S. 18 (U.S. 1967) (harmless error standard for constitutional claims)
People v. Diaz, 95 Cal.App.4th 695 (Cal. App. 2002) (reasonable diligence in locating witnesses; cross-examination opportunity)
People v. Musselwhite, 17 Cal.4th 1216 (Cal. 1998) (jury instruction review; entire charge governs correctness)
Boyde v. California, 494 U.S. 370 (U.S. 1990) (state-of-mind evidence in self-defense analysis; objective standard with subjective factors)
People v. Dennis, 17 Cal.4th 468 (Cal. 1998) (forfeiture of instructional challenges; preservation rules)
People v. Saddler, 24 Cal.3d 671 (Cal. 1979) (preliminary instruction-judgment on applicable instructions)
People v. Ochoa, 19 Cal.4th 353 (Cal. 1998) (new trial evidence; impeachment versus material changes)
People v. Taylor, 119 Cal.App.4th 628 (Cal. App. 2004) (credit calculations; presentence custody credits)