P. v. Cheng
Filed 8/27/13 P. v. Cheng CA2/8
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and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
HAU HONG CHENG,
Defendant and Appellant.
B244588
(Los Angeles
County
Super. Ct.
No. GA084187)
APPEAL from a judgment of the Superior
Court of
County. Michael Villalobos, Judge. Affirmed.
Paul R.
Kraus, under appointment by the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
_______________________
Defendant
Hau Hong Cheng appeals from his convictions of
misdemeanor simple battery. Following our independent review of the
record pursuant to People v. Wende
(1979) 25 Cal.3d 436, 441 (Wende),
we affirm.
A.
The
People’s Case
Viewed in
accordance with the usual rules on appeal (People
v. Zamudio (2008) 43 Cal.4th 327, 357-358), the evidence established
that at 10:30 a.m. on August 26, 2011, Justine Lun was shopping at a Dollar
Tree store in Pasadena when defendant, a stranger to Lun, bumped into her and
blew cigarette smoke into her face. Lun
moved to a different aisle and continued shopping. Moments later, defendant said something in
Chinese as he forcefully grabbed Lun’s left wrist and tried to pull her towards
him, causing Lun to lose her balance, although she did not fall and was able to
pull away. She did not report the
incident to anyone, but as she was leaving the store Lun encountered her
cousin, Joseph Mar, and told him about it.
Mar called 911. Lun recounted the
incident to the police and then left. A
few minutes later, the police asked her to go to a nearby location where she
saw defendant sitting on the curb surrounded by police officers. Lun identified defendant as the person who
had accosted her in the Dollar Tree store.
Mar did not
know that his cousin Lun was shopping in the store while he and his co-worker,
Anthony Quan, were on a break sitting in front of the store. When Mar noticed defendant enter the store
smoking a cigarette, he told Quan to go in and see if defendant was still
smoking. Mar saw defendant leave the
store about five minutes later. After
learning what had happened to his cousin, Mar went outside to confront
defendant. Mar exchanged words with
defendant in Cantonese and followed him as he walked around the parking lot,
into a restaurant and then out again.
When defendant got into a car, Mar noted the license plate number and
called 911.
Police
stopped defendant about half a mile from the Dollar Tree store. One officer characterized defendant as
sweaty, agitated and not cooperative – although he speculated this may have
been because defendant did not understand the commands being given to him in
English. Officer Jack Ng was the
Cantonese interpreter dispatched to the scene.
Defendant told Ng that he saw a girl he liked so he went over to her and
grabbed her hand.
Defendant
was transported to the jail at the Alhambra Police Department. Custody Officers Juan Carranza and Mollie
Zorilla were the jailers on duty that night.
When Carranza arrived for his shift at about 9:00 p.m., defendant was alone in a cell banging on
the doors and windows with his fists and head, screaming in English, “Let me
call my wife.†Later that night,
defendant called Carranza over. Carranza
was about 10 feet from defendant’s cell when defendant made a “sexual gestureâ€
towards Zorilla and said in English, “How much?†Carranza walked away without responding. At around 10:20 p.m.,
Carranza filled out the paperwork for defendant’s release from custody. While Zorilla remained at the control desk,
Carranza went to defendant’s cell and elicited defendant’s promise to be
cooperative. Carranza opened the cell
door and in English directed defendant to go to the control desk where Zorilla
would give him further instructions. At
the control desk, defendant was signing the requisite paperwork when Carranza
saw him try to hug Zorilla. Seizing the
back of defendant’s shirt, Carranza pulled him away and ordered him to put his
hands behind his back. Defendant did not
comply and resisted Carranza’s efforts to handcuff him. During the ensuing struggle, Carranza pushed
defendant onto the ground; defendant reached back and grabbed Carranza’s
neck. Carranza put defendant into a
choke hold and maintained it as defendant rolled over on top of him. When Carranza grabbed defendant’s right hand,
defendant bit Carranza’s index finger, puncturing the skin through the tactical
gloves Carranza was wearing. Defendant
kept biting until three other officers intervened. A video of the incident taken by surveillance
cameras was played for the jury.
Zorrilla
recalled defendant sitting on the floor of his cell pointing at Zorilla and
using a sexual “thrusting motion with his arms.†She also recalled defendant asking in broken
English to call his wife. Later that
night, while defendant was at the control desk signing the paperwork for his
release, he suddenly lunged over the counter.
Zorilla feared for her safety.
B.
The
Defense Case
Defendant testified that he was
born in China
but left when he was 17 years old. He
speaks the Fuzhou and Mandarin
dialects. He does not speak English,
although he learned a little as a child in school. The morning of August 26, 2011, defendant did not feel normal, so he
decided to return to China
where he believed the people in his home town would take care of him. Defendant felt like he was in a dream when he
entered the Dollar Tree store and walked around. He lit a cigarette hoping someone would tell
him not to smoke, but no one did. He
recalled touching someone, but when she looked very scared, he immediately took
his hand away and apologized, then left the store. Defendant recalled speaking Cantonese to a
police officer, then being arrested and being in jail that same day. Defendant banged on the wall of his cell with
his fists and head five or six times.
Although he had already called his girlfriend once, defendant asked the
guard to let him call his “wife†because he could not remember the English word
for “girlfriend.†Defendant recalled
being released from jail later that day, but did not recall trying to hug the
female guard or getting into an altercation with the male guard. Defendant still felt like he was in a dream
and did not recall going home. The next
thing defendant recalled was waking up in a hospital. Defendant watched the video of the incident
and recognized himself, but could not recall it happening.
Defendant
was charged by information with battery upon a custodial officer (Pen. Code,
§ 243.1) and misdemeanor simple battery (Pen. Code, §§ 242, 243,
subd. (a)). A jury found defendant
guilty as charged. Dr. Michael Yoo, the
psychiatrist whose testimony was excluded at trial, testified at defendant’s
sentencing hearing that, defendant had been psychotic and delusional for a few
weeks before the incident on August 26.
He was hospitalized from September 3 through 23 in a county psychiatric
hospital where he was eventually diagnosed with a “brief psychotic disorder,â€
defined as having symptoms which resolve within one month (defendant’s symptoms
improved with medication in a few weeks).
In Yoo’s opinion, defendant was psychotic at the time of the
incident. The trial court suspended
imposition of sentence on both counts and ordered defendant placed on formal
probation for three years. Defendant
timely appealed.
We appointed counsel to represent
the defendant on appeal. After
examination of the record, appointed counsel filed an opening brief which
contained an acknowledgment that she had been unable to find any arguable
issues and requested that we independently review the record pursuant to
had 30 days within which to personally submit any contentions or issues which
he wished us to consider. Defendant did
not file anything.
We have examined the entire record
and are satisfied that appointed counsel has fully complied with her responsibilities
and that no arguable issues
exist. (Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
RUBIN,
J.
WE CONCUR:
BIGELOW,
P. J.
FLIER,
J.
