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The Santa Clara County District Attorney will not seek the death penalty against men convicted of a 1998 gang-related killing in San Jose. In May, Van Hang Heang and Pov Touch were found guilty of killing 64-year-old Dong Dinh while his son was testifying against members of the Los Angeles-based Asian Boyz gang. Santa Clara County Superior Court Judge Alden Danner tried the two men together for the guilt phase, but severed the penalty phases. Last week a San Jose jury deadlocked over whether Heang should receive the death penalty, forcing Danner to declare a mistrial. The penalty phase for Touch had been scheduled for today. But Friday, alternate Public Defender John Breidenthal, Touch’s lawyer, told The Recorder that his client was mentally retarded after testing between 66 and 69 on an IQ test. Touch is currently imprisoned under the Three Strikes law. Even if the prosecution’s experts had found similar mental impairment, it might not have made a difference in the penalty phase. Despite a U.S. Supreme Court ruling last year that classified executions of the mentally retarded as cruel and unusual punishment, states are responsible for defining mental retardation for themselves. In California, legislation has been proposed, but no legal definition or an IQ cutoff is currently on the books. Deputy District Attorney Lane Liroff — who built his case against Heang and Touch on the testimony of a jailhouse informant and police interviews with gang members — said Touch’s IQ test results did not have an effect on the DA’s decision to stop seeking the death penalty. “Heang was clearly the leader and the shooter and Touch was clearly a co-conspirator. It would have been morally wrong to go after the death penalty against Touch when we weren’t seeking death against Mr. Heang,” he said. Touch and Heang will now be sentenced to life in prison without the possibility of parole. “They will never get out and they know there’s no chance they ever will,” said Liroff.

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