People v. Sam CA2/7
B335190
| Cal. Ct. App. | Nov 17, 2025|
Check TreatmentFiled 11/17/25 P. v. Sam CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B335190
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA111878)
v.
SOEUN SAM,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Chestopher L. Taylor, Judge. Affirmed.
Corey J. Robins, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Rama R. Maline,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Soeun Sam appeals from a judgment after a jury found him
guilty of first degree murder. Sam argues (1) substantial
evidence did not support the jury’s finding of premeditation and
deliberation; (2) the prosecutor mischaracterized the evidence
when questioning a key witness; (3) defense counsel provided
ineffective assistance of counsel by failing to object to witness
testimony, discredit a witness during closing argument, and
request a jury instruction on subjective provocation; and (4) the
cumulative effect of the errors resulted in an unfair trial. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Evidence at Trial
In May 2019, Sam lived in an apartment in Long Beach
with his wife, Sena Khim, and a roommate, LaDavid N.1 Sam
had been in a relationship with Khim for two or three years.
On the morning of May 7, 2019, Long Beach Police
Department officers went to Sam’s apartment to investigate a
911 call hangup. Upon arriving, the officers spoke to Sam outside
his apartment, capturing Sam’s interaction with them on video.
Sam told the officers to arrest him because he “killed her.” When
the officers asked Sam who he killed, Sam said he killed his wife,
and her dead body was inside his apartment. Sam did not
complain of any injuries and did not appear to have any.
The officers went inside Sam’s two-bedroom apartment and
saw blood stains on the floor in the living room. Behind the
1 We refer to the surviving victim by his first name and last
initial to protect his privacy interests. (See Cal. Rules of Court,
rule 8.90(b)(4).)
2
living room was a third makeshift bedroom cordoned off with a
sheet. In that bedroom the blankets and sheets had been pulled
off the bed and piled up on the floor. Khim’s dead body was on
the floor underneath the blankets and sheets. Her head was
laying on a pillow that was soaked in blood. Khim had “a clear
gaping wound on [her] forehead” and “her face looked like it had
been caved in.”
LaDavid was sitting on a couch in the living room. Officers
escorted him out of the apartment and took him to the police
station to be interviewed. LaDavid told Officer Perry Thach that
the night before, there was an argument between his two
roommates. LaDavid also told him Sam came into LaDavid’s
room in the middle of the night, asking if he could sleep in there
with LaDavid, but LaDavid said no. Sam sat in a chair in the
bedroom for an hour before leaving. In the morning, Sam told
LaDavid that “he beat [Khim] to death.” LaDavid asked him,
“ ‘Why did you do it?’ ” Sam said that “he was upset” with Khim.
LaDavid then told Sam, “ ‘[I]f you hurt her or killed her, you
should call police.’ ”
Officers recovered from Sam’s apartment a wooden object
and a metal bar, both of which had blood stains on them. The
wooden object looked like a table leg. One end was wrapped in
bandages, apparently to create a handle. The metal bar was big
and heavy and looked like the handle of a bolt cutter. Testing
revealed both objects had blood and Khim’s DNA on them.
Officers also tested several items of Sam’s clothing and swabbed
his hand. Sam’s socks, pants, and shirt contained blood and
Khim’s DNA. The sample from Sam’s hand contained both his
and Khim’s DNA.
3
According to the medical examiner, Khim died of multiple
blunt force trauma caused by objects such as “a pipe, bat, or
fists.” Most of her injuries were on the front of her head, chest,
and left shoulder. She had lacerations and bruising on multiple
areas on her head, including a large laceration on her forehead
and left eyebrow. The front of her face was “flattened” and
“smashed in around the nose area.” She had a large fracture at
the base of her skull.
LaDavid testified at trial that Khim came over every
evening to eat dinner, and then she usually left (she had eight
children with a former partner). The day before the police
arrived, Khim and Sam were having dinner and drinking beer in
the apartment. At some point, Khim left. After Khim left, Sam
kept drinking and got drunk because “[h]e was depressed.”
LaDavid said “there was some kind of jealously going on.”
According to LaDavid, “Sam [was] very jealous of his wife.”
Sometime “in the evening” and “before the killing,” Sam
and LaDavid were drinking beer when Sam asked, “ ‘What would
you do if someone died in the residence?’ ” LaDavid told him
“that he should call the police.” LaDavid further testified that at
midnight, “[b]efore the killing of that woman, [Sam] asked
[LaDavid] if he could . . . share the same bed.” LaDavid told Sam
no because LaDavid’s bed was too small.
LaDavid stated he “didn’t see [Sam’s] wife die.” He “didn’t
know what was going on, what they were doing in the other
room.” He “didn’t hear anything, not even a little sound.” At
some point when the police arrived in the morning, LaDavid saw
Khim’s dead body. When the prosecutor asked LaDavid when he
became aware of the killing, LaDavid responded, “I didn’t know.
The police came over, and I was escorted out. That was it.”
4
B. Relevant Jury Instructions and Closing Argument
The trial court instructed the jury with the following
relevant jury instructions: first or second degree murder with
malice aforethought (CALCRIM No. 520), first degree murder
(CALCRIM No. 521), voluntary intoxication (CALCRIM
No. 3426), voluntary manslaughter: heat of passion (CALCRIM
No. 570), and personal use of a deadly weapon (CALCRIM
No. 3145).
Defense counsel’s theory of the case was that Sam was
drunk and, “enraged [with] jealousy,” he killed Khim without
malice aforethought. Counsel asked the jury to find Sam guilty
of manslaughter, not first or second degree murder. During
closing argument, counsel described the events as follows: The
day before the police arrived, Sam and Khim were having dinner
and drinking. Khim left, and Sam continued to drink. At some
point, Khim returned to the apartment and “a terrible fight about
jealousy and rage” occurred. As counsel stated, “That’s when . . .
Sam must have struck her.” Counsel asked the jury to “use
common sense and logic” to find Sam was “drunk off his ass” and
did not “know what [was] going on.”
Counsel further argued that after the killing, Sam asked
LaDavid, “ ‘What should I do if I killed someone? I think she
might be dead.’ [LaDavid said], ‘Call the cops.’ ” Counsel stated,
“Does it make sense [Khim] left to go somewhere and . . . Sam
[said], ‘Hey, what should I do if I kill someone later tonight?’
That doesn’t make sense. That is nonsense.”
5
C. Verdict and Sentencing
The jury found Sam guilty of first degree murder (Pen.
Code,2 § 187, subd. (a)) and found true that he used two deadly
and dangerous weapons, a wooden bat and metal bar, in the
commission of the murder (§ 12022, subd. (b)(1)). The trial court
sentenced Sam to a total term of 26 years to life, consisting of 25
years to life for the murder, plus one year for one of the weapon
enhancements.3
Sam timely appealed.
DISCUSSION
A. Substantial Evidence Supported the Jury’s Finding Sam
Killed Khim Deliberately and with Premeditation
Sam does not challenge the jury’s finding that he killed
Khim; instead, he contends substantial evidence did not support
the jury’s finding he killed her with deliberation and
premeditation. We reject his argument.
1. Applicable law and standard of review
“Murder is the unlawful killing of a human being, or a
fetus, with malice aforethought.” (§ 187, subd. (a).) “If the
murder is ‘willful, deliberate, and premeditated,’ it is first degree
murder. [Citation.] ‘ “ ‘In this context, “premeditated” means
“considered beforehand,” and “deliberate” means “formed or
arrived at or determined upon as a result of careful thought and
2 Statutory references are to the Penal Code unless indicated
otherwise.
3 Although the jury found true two enhancements for using
deadly and dangerous weapons during the murder, the court is
only permitted to impose one. (§ 1170.1, subd. (f).)
6
weighing of considerations for and against the proposed course of
action.” ’ ” [Citation.] “ ‘An intentional killing is premeditated
and deliberate if it occurred as the result of preexisting thought
and reflection rather than unconsidered or rash impulse.’ ”
[Citations.] “The true test is not the duration of time as much as
it is the extent of the reflection. Thoughts may follow each other
with great rapidity and cold, calculated judgment may be arrived
at quickly.” ’ ” (People v. Morales (2020) 10 Cal.5th 76, 88(Morales); accord, In re Lopez (2023)14 Cal.5th 562
, 580.)
The Supreme Court has “identified ‘three basic categories’
of evidence [the] court has generally found sufficient to sustain a
finding of premeditation and deliberation: (1) planning activity,
or ‘facts about how and what defendant did prior to the actual
killing which show that the defendant was engaged in activity
directed toward, and explicable as intended to result in, the
killing’; (2) motive, or ‘facts about the defendant’s prior
relationship and/or conduct with the victim from which the jury
could reasonably infer a “motive” to kill the victim’; and
(3) manner of killing, or ‘facts about the nature of the killing from
which the jury could infer that the manner of killing was so
particular and exacting that the defendant must have
intentionally killed according to a “preconceived design” to take
his victim’s life in a particular way for a “reason.” ’ ” (Morales,
supra,10 Cal.5th at pp. 88-89; see People v. Anderson (1968)70 Cal.2d 15, 26-27
.)
These categories of evidence “ ‘ “are descriptive and neither
normative nor exhaustive.” ’ ” (Morales, supra, 10 Cal.5th at
p. 89.) We “ ‘ “need not accord them any particular weight.” ’ ”
(Ibid.) They provide “ ‘a framework to aid in appellate review,’ ”
but they do not “ ‘define the elements of first degree murder or
7
alter the substantive law of murder in any way.’ ” (Ibid.; see
People v. Pettigrew (2021) 62 Cal.App.5th 477, 492 [“those
categories or factors . . . are merely intended to guide a reviewing
court’s assessment of whether the evidence supports a reasonable
inference that the killing was the result of the defendant’s
preexisting reflection and not the result of an unconsidered or
rash impulse”].)
“ ‘When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in
the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.’ ” (People v. Hin (2025) 17 Cal.5th 401, 451; see People v. Ellis (2025)108 Cal.App.5th 590
, 596.) “In so doing, a reviewing court ‘ “ ‘presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” ’ ” (Morales, supra,10 Cal.5th at p. 88
; see Ellis, at p. 596.) “Substantial evidence also ‘ “includes circumstantial evidence and any reasonable inferences drawn from that evidence.” ’ ” (People v. Vargas (2022)84 Cal.App.5th 943
, 951.) “ ‘ “ ‘[I]f the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.’ [Citation.] We do not reweigh evidence or reevaluate a witness’s credibility.” ’ ” (People v. Ramirez (2022)13 Cal.5th 997
, 1118.)
2. Analysis
The record contains at least two of the three “ ‘basic
categories’ of evidence” that generally support an inference of
8
premeditation and deliberation: planning activity and motive.
(Morales, supra, 10 Cal.5th at p. 88.) Substantial evidence supported the jury’s finding the killing was premeditated and deliberated. (See People v. Romero (2008)44 Cal.4th 386, 401
[“A
first degree murder conviction will be upheld when . . . there is
evidence of motive with evidence of either planning or manner” of
killing].)
First, a jury could draw a reasonable inference from the
evidence that prior to the murder, Sam engaged in activity
intended to result in Khim’s murder. According to LaDavid’s
testimony at trial, before the killing, Sam asked him, “ ‘What
would you do if someone died in the residence?’ ” The jury could
reasonably infer from this question that Sam contemplated
killing Khim. (See People v. Felix (2009) 172 Cal.App.4th 1618,
1626[“preoffense words from the perpetrator’s own mouth,” including “verbal expressions of malice made so close in time to the shooting” showed premeditation].) Further, one of the weapons Sam used, a wooden table leg, had been wrapped with bandages to create a handle. The fact that Sam appeared to have prepared the weapon beforehand supports an inference that Sam did not pick it up on a “spur-of-the moment impulse.” (Morales, supra,10 Cal.5th at p. 90
[defendant’s use of gloves and three
different knives to kill victim supported inference that he did not
spontaneously pick up the tools but instead arrived at the home
prepared to attack].)
Second, the evidence demonstrates that Sam was “very
jealous” when it came to Khim, and the pair had recently
quarreled. Sam admitted he beat Khim to death because he was
“upset with her.” Sam’s apparent displeasure over the state of
his relationship with Khim is evidence of a motive for the
9
murder. (See People v. Williams (2018) 23 Cal.App.5th 396, 410[defendant’s “rage at the collapse of [his] marriage” provided evidence of motive to kill his wife]; People v. Disa (2016)1 Cal.App.5th 654, 666
[motive for killing shown by evidence defendant was jealous of victim’s relationship with another]; People v. Kovacich (2011)201 Cal.App.4th 863, 893
[“evidence
showing ‘quarrels, antagonism or enmity between an accused and
the victim of a violent offense is proof of motive to commit the
offense’ ”].)
Sam challenges LaDavid’s testimony that, “before the
killing,” Sam asked, “ ‘What would you do if someone died in the
residence?’ ” Sam claims the testimony is “inherently
improbable, physically impossible, and unreasonable” and thus
must be rejected.
As our Supreme Court “ha[s] explained: ‘We are skeptical
of the claim that the testimony of an ordinary witness who claims
to have heard the confession or damaging admission of a criminal
defendant may be excluded from evidence on the ground that it is
inherently improbable. Generally, “doubts about the credibility
of [an] in-court witness should be left for the jury’s resolution.” ’ ”
(People v. Hovarter (2008) 44 Cal.4th 983, 996; see People v. Brown (2014)59 Cal.4th 86, 104-105
.) “While an appellate court can overturn a judgment when it concludes the evidence supporting it was ‘inherently improbable,’ such a finding is so rare as to be almost nonexistent. ‘ “To warrant the rejection of the statements given by a witness who has been believed by a trial court [or a jury], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.” ’ ” (People v. Ennis (2010)190 Cal.App.4th 721, 728-729
.)
10
Here, LaDavid’s testimony is not demonstrably false or
physically impossible. LaDavid testified he observed Khim come
to the apartment for dinner and drinks, and then leave, as was
consistent with Khim’s routine. LaDavid remained with Sam,
and it was during this period—after Khim had left and before
LaDavid saw Khim’s dead body the next day—that Sam asked
the incriminating question.
Sam argues it is not possible for LaDavid to testify about
the “timing” of Sam’s question because LaDavid did not see Khim
return to the apartment and did not see or hear the murder
occur. But the fact that LaDavid did not observe those events
does not render his testimony impossible. There were multiple
rooms in the apartment, and it is possible that after Sam asked
his incriminating question, Khim returned to the apartment and
was murdered while LaDavid was alone in a bedroom or asleep,
unable to observe those events. (See People v. Ennis, supra,
190 Cal.App.4th at p. 729[the only inquiry is whether “it seem[s] possible that what the witness claimed to have happened actually happened”].) The fact that LaDavid’s testimony is open to other possibilities is immaterial. (See People v. Mumin (2023)15 Cal.5th 176
, 202 [“ ‘Conflicts and even testimony which is
subject to justifiable suspicion do not justify the reversal of a
judgment, for it is the exclusive province of the . . . jury to
determine the credibility of a witness and the truth or falsity of
the facts upon which a determination depends.’ ”].)
Sam also argues that absent LaDavid’s “timing testimony”
there is insufficient evidence of premeditation and deliberation.
He points to individual pieces of evidence in the record, considers
them in a light favorable to him, and argues there is no evidence
of premeditation and deliberation. But the test is whether, after
11
viewing all the evidence “ ‘in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’ ”
(People v. Edwards (2013) 57 Cal.4th 658, 715, italics omitted.)
Based on the evidence, we cannot say no rational trier of fact
could find beyond a reasonable doubt that the murder of Khim
was premeditated and deliberate.
B. The Prosecutor Did Not Commit Prejudicial Misconduct
Sam argues the prosecutor committed prejudicial
misconduct by improperly “mischaracteriz[ing] LaDavid’s
testimony” during the direct examination of LaDavid. We are not
persuaded.
1. Relevant testimony
The following exchange took place during LaDavid’s
testimony on direct examination:
“[Prosecutor]: [D]id you tell police that . . . Sam told
you that he had beaten his girlfriend to death?
[LaDavid]: No, I don’t think I did.
...
[Prosecutor]: Did you tell the police [that] Sam told
you that he did it because he was very upset with
her?
[LaDavid]: Oh, I know a little bit on that. . . . [Sam]
asked me in the evening, he asked me earlier, ‘What
12
if someone died,’ and what could be done about it? So
I told him, ‘Are you crazy? If someone died some
place, the police has to be called.’
...
[Prosecutor]: You said [Sam] talked to you about
what would happen if he killed someone[?]
[Defense Counsel]: I’m going to object. That
misstates the evidence.
[Court]: Overruled. You may answer.
[LaDavid]: If someone has died in the . . . residence.”
2. Analysis
Sam contends the prosecutor mischaracterized the evidence
when he asked during LaDavid’s direct examination, “You said
[Sam] talked to you about what would happen if he killed
someone[?]” Sam argues that, contrary to the prosecutor’s
question, LaDavid “clearly testified that [Sam] asked what to do
‘if someone died,’ not if he killed someone, and certainly not if he
were to kill someone.” Even assuming the prosecutor
mischaracterized the evidence in the ways Sam alleges—by
suggesting that Sam admitted to killing someone or that Sam
contemplated killing someone in the future—Sam has failed to
demonstrate prejudice.
“Although prosecutors have wide latitude to draw
inferences from the evidence presented at trial, mischaracterizing
the evidence is misconduct. [Citation.] A prosecutor’s ‘vigorous’
13
presentation of facts favorable to his or her side ‘does not excuse
either deliberate or mistaken misstatements of fact.’ ” (People v.
Hill (1998) 17 Cal.4th 800, 823; see People v. Cash (2002)28 Cal.4th 703, 732
[“Counsel may not state . . . facts . . . that are not in evidence.”].) However, “[e]ven where a defendant shows prosecutorial misconduct occurred, reversal is not required unless the defendant can show he suffered prejudice.” (People v. Fernandez (2013)216 Cal.App.4th 540, 564
(Fernandez).)
“Error with respect to prosecutorial misconduct is
evaluated under Chapman v. California (1967) 386 U.S. 18, to the extent federal constitutional rights are implicated, and People v. Watson (1956)46 Cal.2d 818
, [ ] if only state law issues were involved.” (Fernandez, supra,216 Cal.App.4th at p. 564
; accord, People v. Adanandus (2007)157 Cal.App.4th 496, 514
.) Watson applies if the prosecutor’s misconduct involves “ ‘ “ ‘deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ ” (People v. Gionis (1995)9 Cal.4th 1196, 1215
; see
Fernandez, at p. 564; Adanandus, at pp. 514-515.) Chapman
applies if the prosecutor’s conduct “ ‘comprises a pattern of
conduct “so egregious that it infects the trial with such unfairness
as to make the conviction a denial of due process.” ’ ” (Gionis, at
pp. 1214-1215; see Fernandez, at p. 564; Adanandus, at p. 514.)
The alleged misconduct did not render the trial so
fundamentally unfair that it triggered the Chapman standard,
and the alleged misconduct was harmless under the Watson
standard because it is not reasonably probable that a more
favorable result would have been reached absent the alleged
objectionable question. The prosecutor’s question was brief and
isolated. (See People v. Arias (1996) 13 Cal.4th 92, 161 [no
prejudice where prosecutor’s improper comments “were relatively
14
brief and were not repeated”].) And the trial judge instructed the
jury with CALCRIM No. 222, which stated in relevant part:
“Nothing that the attorneys say is true is evidence. . . . Their
questions are not evidence. Only the witnesses’ answers are
evidence. . . . Do not assume that something is true just because
one of the attorneys asked a question that suggested it was true.”
We presume that the jury followed its instructions and did not
consider the prosecutor’s question as evidence. (See People v.
Chhoun (2021) 11 Cal.5th 1, 30.)
Moreover, it was obvious and undisputed that Sam killed
Khim. (See People v. Arias, supra, 13 Cal.4th at p. 161 [“Even if
the prosecutor’s remarks had been improper, we would find no
basis for reversal” because “the violence of the two incidents . . .
was already obvious”].) Indeed, the jury watched a video of Sam
telling police officers that he “killed her.” Officer Thach testified
that LaDavid said that Sam admitted “he beat [Khim] to death.”
And, defense counsel conceded during closing that Sam killed
Khim.
Similarly, any improper suggestion that Sam contemplated
killing someone in the future was harmless because that fact was
later introduced during the trial. (See People v. Johnson (2019)
8 Cal.5th 475, 518 [any error in admitting evidence was harmless
because similar evidence was properly admitted].) LaDavid later
testified that “before the killing,” Sam “asked [him], ‘What would
you do if someone died in the residence?’ ” (Italics added.)
LaDavid even reiterated a second time during his testimony that
Sam’s question occurred “before the killing.” Accordingly, no
prejudice occurred.
15
C. Defense Counsel Did Not Provide Ineffective Assistance
Sam contends his counsel was ineffective for failing to
(1) object to a portion of LaDavid’s testimony, (2) argue during
closing that a portion of LaDavid’s testimony should have been
rejected, and (3) request an instruction on CALCRIM No. 522.
We reject these contentions.
1. Applicable legal principles
“ ‘ “To establish ineffective assistance of counsel, a
defendant must show that (1) counsel’s representation fell below
an objective standard of reasonableness under prevailing
professional norms, and (2) counsel’s deficient performance was
prejudicial, i.e., there is a reasonable probability that, but for
counsel’s failings, the result would have been more favorable to
the defendant. [Citation.] ‘A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.’ ” ’ ” (People v. Rices (2017) 4 Cal.5th 49, 80; accord, People v. Johnson (2016)62 Cal.4th 600, 653
; In re Roberts (2003)29 Cal.4th 726, 744-745
; see Strickland v. Washington (1984)466 U.S. 668, 694
.)
“ ‘Reviewing courts defer to counsel’s reasonable tactical
decisions in examining a claim of ineffective assistance of counsel
[citation], and there is a “strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance.” ’ [Citations.] ‘[W]e accord great deference to
counsel’s tactical decisions’ [citation], and we have explained that
‘courts should not second-guess reasonable, if difficult, tactical
decisions in the harsh light of hindsight.’ ” (People v. Weaver
(2001) 26 Cal.4th 876, 925-926; accord, People v. Ledesma (2006)39 Cal.4th 641, 746
.) Accordingly, to prevail on direct appeal on
a claim that counsel’s performance fell below an objective
16
standard of reasonableness, a defendant must show “counsel had
‘ “ ‘no rational tactical purpose’ ” ’ for an action or omission.”
(People v. Mickel (2016) 2 Cal.5th 181, 198.) “ ‘ “ ‘[If] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,’ the claim on appeal must be rejected.” ’ ” (People v. Carrasco (2014)59 Cal.4th 924, 982
.)
2. Counsel’s failure to object to LaDavid’s testimony
Sam argues his defense counsel should have objected to
LaDavid’s testimony that “before the killing,” Sam asked, “ ‘What
would you do if someone died in the residence?’ ” Sam contends,
more specifically, that LaDavid’s testimony about the timing of
Sam’s question, i.e., that it occurred “before the killing,” “lacks
any foundation and is based purely on speculation” because
LaDavid did not know when the murder took place. Sam relies
on the principle that “[a] question that ‘ “ask[s] a lay witness to
testify to facts that the witness has not personally observed, or to
state an opinion not based on his or her own observations, calls
for speculation and conjecture.” ’ ” (People v. Walts (2025)
112 Cal.App.5th 127, 137.)
“[C]ounsel’s decision whether or not to object to
inadmissible evidence is a matter of trial tactics. [Citation.]
Because we accord great deference to trial counsel’s tactical
decisions, counsel’s failure to object rarely provides a basis for
finding incompetence of counsel.” (People v. Lewis (2001)
25 Cal.4th 610, 661; see People v. Aguirre (2025)18 Cal.5th 629
,
707 [“ ‘ “a mere failure to object to evidence . . . seldom
establishes counsel’s incompetence” ’ ”].) “ ‘Representation does
not become deficient for failing to make meritless objections’
17
[citation], and there may be valid reasons why counsel may
choose not to make even a meritorious objection.” (Aguirre, at
p. 707.)
Here, defense counsel’s representation was not deficient
because any objection would have been meritless. LaDavid’s
testimony about the timing of Sam’s question was not pure
speculation; it was based on his personal knowledge of the events
leading to the murder. (See Evid. Code, §§ 702, 800 [a lay
witness may testify to facts based on his or her personal
observations].)
As noted, LaDavid saw Khim leave the apartment after
having dinner with Sam. While LaDavid was alone with Sam,
Sam asked the incriminating question. Based on his personal
observations of Khim and Sam, LaDavid reasonably concluded
that Sam asked the question before the murder occurred.
LaDavid did not merely guess as to the timing of Sam’s question;
rather, he placed the question in a timeline of observed conduct.
Sam contends the testimony is speculative because
LaDavid did not know when Khim returned to the apartment and
when exactly the murder occurred. But the fact that LaDavid did
not observe these events does not render his testimony
speculative. A witness is not required to observe every moment
of an event to offer testimony about it. (See People v. Walts,
supra, 112 Cal.App.5th at pp. 137-138 [although witness did not
observe her spouse purchase clothes for their daughter, it was not
speculative for witness to testify as to that fact because witness
had personal knowledge of the family’s general shopping habits].)
Because LaDavid observed other key events and was able to draw
reasonable inferences from those events, his testimony was not
pure conjecture. Defense counsel’s failure to object to this portion
18
of LaDavid’s testimony did not constitute ineffective assistance of
counsel.
3. Counsel’s failure to argue during closing argument
that LaDavid’s testimony should be rejected
Sam argues that defense counsel’s closing argument was
deficient because he failed to sufficiently discredit LaDavid’s
testimony that “before the killing,” Sam asked, “ ‘What would you
do if someone died in the residence?’ ” Sam contends that defense
counsel did not adequately attack the “timing” of Sam’s alleged
question.
The presumption that counsel engaged in a sound trial
strategy “appl[ies] with particular force at closing argument”
because “ ‘[t]he decision of how to argue to the jury after the
presentation of evidence is inherently tactical.’ ” (People v.
Gamache (2010) 48 Cal.4th 347, 391; accord, People v. Samayoa (1997)15 Cal.4th 795, 856
.) Given this presumption, we cannot
conclude defense counsel’s closing argument was deficient.
Counsel, in fact, implicitly discredited LaDavid’s testimony
regarding the timing of Sam’s question. Counsel argued, “Does it
make sense [Khim] left to go somewhere and . . . Sam [said], ‘Hey,
what should I do if I kill someone later tonight?’ That doesn’t
make sense. That is nonsense. You have to use common sense
and logic.” Counsel later argued that “there is absolutely no
evidence that [Sam] decided to kill before completing the acts.”
Sam acknowledges that “defense counsel attempted to
attack [LaDavid’s] timing testimony,” but argues that counsel
should have spent more time on the issue and buttressed his
argument with more points. While counsel’s argument regarding
LaDavid’s specific testimony was brief, it “was not so lacking as
to fall below the constitutional minimum.” (People v. Gamache,
19
supra, 48 Cal.4th at p. 394[rejecting defendant’s contention that defense counsel’s argument was overly brief and superficial]; see People v. Cudjo (1993)6 Cal.4th 585, 634-635
[“The effectiveness of an advocate’s oral presentation is difficult to judge accurately from a written transcript, and the length of an argument is not a sound measure of its quality.”]; People v. Moore (1988)201 Cal.App.3d 51, 57
[“Reversals for ineffective assistance of
counsel during closing argument rarely occur; when they do, it is
due to an argument against the client which concedes guilt,
withdraws a crucial defense, or relies on an illegal defense.”].)
Accordingly, Sam failed to establish defense counsel provided
ineffective representation during closing argument.
4. Counsel’s failure to request CALCRIM No. 522
Sam acknowledges that defense counsel did not request a
jury instruction on subjective provocation under CALCRIM No.
522.4 He also acknowledges that the trial court did not have a
sua sponte duty to instruct the jurors on CALCRIM No. 522
absent a request from counsel. (See People v. Rivera (2019)
7 Cal.5th 306, 328-329[trial court is not required to give instruction sua sponte that provocation may be sufficient to raise reasonable doubt about premeditation or deliberation, such as CALCRIM No. 522]; accord, People v. Rogers (2006)39 Cal.4th 826, 877-880
(Rogers).) Anticipating forfeiture, he argues defense
counsel was ineffective for failing to request a pinpoint
4 CALCRIM No. 522 provides, in relevant part: “Provocation
may reduce a murder from first degree to second degree. The
weight and significance of the provocation, if any, are for you to
decide. [¶] If you conclude that the defendant committed murder
but was provoked, consider the provocation in deciding whether
the crime was first or second degree murder.”
20
instruction on CALCRIM No. 522 because “[t]here could be no
rational tactical reason for counsel’s failure” and “the lack of the
instruction was prejudicial.” His argument is without merit.
Sam has failed to “overcome the presumption that, under
the circumstances, the challenged action ‘might be considered
sound trial strategy.’ ” (Strickland v. Washington, supra,
466 U.S. at p. 689.) Defense counsel’s main theory of the case
was that Sam was guilty of voluntary manslaughter and not
guilty of first or second degree murder. Defense counsel argued
the murder should be reduced to voluntary manslaughter based
either on a theory of voluntary intoxication (CALCRIM No.
3426)5 or heat of passion due to provocation (CALCRIM No. 570).6
5 As given to the jury, CALCRIM No. 3426 stated, in relevant
part: “You may consider evidence, if any, of the defendant’s
voluntary intoxication only in a limited way. You may consider
that evidence only in deciding whether the defendant acted with
malice aforethought. . . . [¶] In connection with the charge of
murder, the People have the burden of proving beyond a
reasonable doubt that the defendant acted with malice
aforethought. If the People have not met this burden, you must
find the defendant not guilty of murder.”
6 The jury was instructed with CALCRIM No. 570 that “[a]
killing that would be murder is reduced to voluntary
manslaughter if they killed someone because of a sudden quarrel
or heat of passion. The defendant killed someone because of a
sudden quarrel or heat of passion if, one, the defendant was
provoked; two, as a result of the provocation, the defendant acted
rashly and under the influence of intense emotion that obscured
his reasoning or judgment; and three, the provocation would have
caused a person of average disposition to act rashly and without
due deliberation, that is, from passion rather than from
judgment.”
21
Additional jury instructions on provocation as a basis for second
degree murder under CALCRIM No. 522 would have focused the
jury’s attention on using the provocation theory to reach a verdict
of second degree murder instead of a verdict of voluntary
manslaughter. It is possible defense counsel wanted the jury to
choose only between first degree murder and voluntary
manslaughter, when applying the provocation theory, and did not
want the jury to have the option of finding the defendant guilty of
second degree murder. Compared to second degree murder,
which is punishable by imprisonment for 15 years to life (§ 190,
subd. (a)), voluntary manslaughter is punishable by
imprisonment for three, six, or 11 years (§ 193, subd. (a)).
Because voluntary manslaughter carries a lower sentence, it
could have been a tactical decision for defense counsel to focus
the jury’s attention on voluntary manslaughter, instead of second
degree murder. (Cf. People v. Thomas (1992) 2 Cal.4th 489, 531-
532 [defense counsel’s “[f]ailure to argue an alternative theory is
not objectively unreasonable as a matter of law. . . . That the two
[possible defense theories] are not absolutely incompatible does
not vitiate a choice to [argue] one or the other”].)
D. Cumulative Effect of the Errors
Sam argues the cumulative effect of the claimed errors was
prejudicial and deprived him of a fair trial. “Cumulative error is
present when the combined effect of the trial court’s errors is
prejudicial or harmful to the defendant.” (People v. Capers (2019)
7 Cal.5th 989, 1017.) “To the extent that there are a few
instances in which we found or assumed the existence of error,
we concluded that no prejudice resulted. We reach the same
22
conclusion after considering the errors’ cumulative effect.”
(People v. Booker (2011) 51 Cal.4th 141, 195.)
DISPOSITION
The judgment is affirmed.
STONE, J.
We concur:
MARTINEZ, P. J.
FEUER, J.
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