P. v. Huynh
Filed 8/7/12 P. v. Huynh CA2/4
California Rules of Court, rule 8.1115(a), prohibits courts
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
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
JONATHAN HUYNH,
Defendant and Appellant.
B228291
(Los Angeles
County
Super. Ct.
No. NA081657)
APPEAL from
a judgment of the Superior Court of
County, Tomson T. Ong, Judge.
Affirmed in part, reversed in part, and remanded with directions.
Jennifer
Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Stephanie A. Miyoshi and
Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
Jonathan Huynh appeals from his judgment of conviction by
jury verdict of murder (Pen. Code, §
187, subd. (a)). He argues his
constitutional rights to remain silent,
to due process, and a fair trial were violated by the court’s order that he
could not present a defense without admissible evidence of the foundational
basis, which could only come from defendant’s testimony. He also contends the trial court erred in
denying his Pitchess motion, and that
the court erred in imposing a $520 assessment and surcharge. Respondent concedes error with respect to the
last issue.
We conclude
that defendant’s rights were not violated by the trial court’s order that his
testimony was necessary to lay a foundation for the defense that the victim
died during a consensual episode of sexual asphyxiation. The trial court erred in denying defendant’s
motion for discovery of material in the personnel files of two investigating
detectives, as related to the defense that his statements to them were
coerced. We shall conditionally reverse
the judgment to allow the trial court to conduct the appropriate in camera
review, as we explain. We reverse as to
the $520 penalty assessment imposed on the restitution
fines.
FACTUAL AND PROCEDURAL SUMMARY
Defendant
began dating Ms. Kate Yi while they were in high school. They had a turbulent relationship, breaking
up after graduating in 2006, and resuming dating about a year later. Ms. Yi’s friends disliked defendant and
believed he was infatuated and obsessed with her. Defendant was Ms. Yi’s first sexual
partner. She was very conservative and
religious.
In 2009 Ms.
Yi was a nursing student at California State University, Long Beach. In January 2009, she moved into a two-bedroom
apartment with Kimberly Ryman, a fellow student. The two had not known each other
previously. Defendant stayed with Ms. Yi
four to five nights a week. They
bickered and argued a lot. Ms. Ryman
considered defendant to be odd, immature, and awkward with a crazy look on his
face. On one occasion, a neighbor who
did not know defendant, had a conversation with him in which defendant
demonstrated anger and intensity about his belief that Ms. Yi was not putting
as much into their relationship as he was, and kept asking him for money.
On the
afternoon of March 31, 2009, Ms. Ryman came back to the apartment but did not
see Ms. Yi and defendant. Ms. Yi’s
purse, with items falling out of it, was on the floor in the hallway outside of
Ms. Ryman’s bedroom. Ms. Yi had never
left her purse in that condition before.
Ms. Ryman went into her room, changed clothes, and came out. She put the items into the purse and set it
near the wall in the hallway. Ms. Yi’s
bedroom door was closed and there was no noise coming from inside the
room. Ms. Ryman went into the living
room to put on her running shoes.
Defendant walked out of the bedroom, looking sad. Ms. Ryman asked, “‘Are you in trouble
again’” Defendant said, “‘She hit me’”
and touched his face. Ms. Ryman said,
“‘Oh.’” Ms. Ryman explained that she
asked defendant if he was in trouble again because Ms. Yi “always got mad at
him. He came out and moped out in the
living room and I just talked to him usually.”
Ms. Yi came
out of her room, appearing angry. She
said, apparently to defendant: “‘Take
your things and leave,’ like, ‘Just leave—hold on. Take your stuff too with you.’” Ms. Yi said she would get defendant’s things
because that way, he would get out faster.
She went back into her room and came out with a pile of defendant’s
belongings. She opened the apartment
door, and set the belongings inside next to the door. Then she got another pile, and set it outside. Ms. Yi did not say anything to Ms.
Ryman. Ms. Yi told defendant to take his
desk chair too. Both defendant and Ms.
Yi were fully clothed.
It appeared
to Ms. Ryman that Ms. Yi was breaking up with defendant. Ms. Ryman had never seen this type of
interaction between them before. She
tried to change her shoes as fast as she could because she wanted to leave Ms.
Yi and defendant alone. While Ms. Yi was
moving his property, defendant was just standing by the front door, looking
sad. When Ms. Ryman left, Ms. Yi was
standing next to defendant with her arms crossed, telling him to leave. Ms. Yi still appeared to be angry. Ms. Ryman left the apartment about 3:35
p.m.
While she
was gone, Ms. Ryman received a call which displayed Ms. Yi’s name on the caller
identification. This was about 6:00 p.m.
the same day. But Ms. Ryman missed
the call, and called the number back later.
Defendant answered Ms. Yi’s phone, which was unusual. Ms. Ryman asked if Ms. Yi had called her. Defendant said “‘No, it was me. I called you.’” Defendant said “‘She got mad at me. And, fine, if you don’t leave I’m going to
leave.’” Defendant said he could not
find Ms. Yi, and Ms. Ryman asked what she could do. Defendant asked her to help find Ms. Yi. Ms. Ryman still was working out and had
another errand, so she told defendant she would be back in an hour. Defendant asked her permission to wait for
Ms. Yi at the apartment because he had her phone and keys. Ms. Ryman agreed, but thought he should leave
if Ms. Yi wanted him to do so.
Ms. Ryman
returned to the apartment between 7:15 p.m. and 7:30 p.m. to find it locked and
empty. Only the bottom lock on the door
was locked, not the deadbolt. The
property belonging to defendant that Ms. Yi had placed near the front door and
outside the front door was gone. Ms.
Yi’s sandals were gone, as were her purse, keys, and car. The door to Ms. Yi’s bedroom was open. Ms. Ryman did not hear from either Ms. Yi or
defendant that night or the next day.
She tried to call Ms. Yi the next day on her cell phone, but did not
reach of her. She also tried unsuccessfully
to reach Ms. Yi by text message. Ms.
Ryman became concerned on April 1 because Ms. Yi was always home, and because
she was not there to pay her share of the rent, which was due that day.
Later that
evening, Ms. Ryman’s cat began acting strangely, sniffing at the closet where
Ms. Yi was eventually found. The next
day, on April 2, Ms. Ryman found a number for Ms. Yi’s mother and called to say
she could not locate Ms. Yi. Ms. Yi’s
parents arrived at the apartment about 7:00 p.m. on April 2. Ms. Yi’s mother and Ms. Ryman searched Ms.
Yi’s room. Ms. Ryman found Ms. Yi’s dead
body in a small closet in the room. She
ran from the apartment, screaming.
Ms. Yi’s
father pulled her body out of the closet.
A man’s leather belt was tightly pulled around her neck. Ms. Yi’s mother loosened the belt, removed
it, and threw it to the side. The
parents cradled her body on the floor of the room and were in this position
when the first police officer arrived at the scene. Ms. Yi had black panties stuffed in her mouth
and was naked except for a thin shirt pulled up over her breasts. She had Advil pills stuffed up her
nostrils. There was bleeding on Ms. Yi’s
head and near her buttocks and vagina and a mark on her forehead. There was a bruise on her cheek. Ms. Yi was 20 years old at the time of her
death. She was 5 feet 4 inches tall and
weighed 143 pounds.
Detective
Daniel Mendoza investigated the scene.
He noticed the room smelled unusually fresh, like laundry soap. The bedroom window was wide open, and fabric
softener sheets were on the floor of the closet and on Ms. Yi’s buttocks. A plug-in air freshening device was emitting
an odor. The belt next to Ms. Yi’s body
was 44 inches long, 1.5 inches wide, and had a significant amount of hair
attached to it. DNA samples were
collected from the body.
On April 3,
police detectives learned that Ms. Yi’s cell phone was pinging at the Block of
Orange, a mall. Officers went to that
location and found Ms. Yi’s car parked in the lot. They watched the vehicle for seven
hours. At about 6:00 p.m., defendant
went to the vehicle, entered it using a key, and changed his shirt with one
from the trunk. He then went back into
the mall. Officers located him playing a
game with other people in a game store.
Detective Mendoza arrived at 8:00 p.m. and found defendant still playing
games at the store. He and his partner
identified themselves as police officers and told defendant they wanted to talk
with him about a missing person report regarding Ms. Yi.
Defendant
spoke with the officers in their unmarked police car. The first part of that interview was not
recorded, but the second portion was.
Based on incriminating statements defendant made, he was detained and
transported to the Long Beach Police Station.
Only the second part of defendant’s interview at the Long Beach station
was recorded, the first part was not. He
admitted Ms. Yi died after he hit her during an argument.
Dr. Paul
Gliniecki, the deputy medical examiner, concluded that the cause of death was
asphyxia due to strangulation or obstruction of the airway, with a gag and
sharp force injuries contributing to death.
Asphyxia is lack of oxygen.
Ms. Yi had extensive petechial hemorrhages (small blood spots) over
her face, in her eyes, and in her mouth from the strangulation. She also had ligature marks across her neck
and an internal bruise on the right side of the neck. The gag was a pair of panties stuffed into
her mouth with her tongue rolled back.
There were three separate incised or sharp force injuries to the back of
the head, each with a depth of one-half inch.
Ms. Yi also had a congested face.
Dr. Gliniecki explained that this meant that blood vessels in the face
had become engorged and burst, causing hemorrhages. In comparison to other strangulation cases,
the petechial hemorrhages on Ms. Yi’s face were “considerably”
significant. There was an abrasion on
her neck and some other scattered abrasions.
Fragments of ibuprophren or Advil pills were found in both
nostrils. There were bruises and
abrasions on her lips. She also had
bruises on her hands, wrist, left side of the chest, and legs. There were bite marks on the tip of Ms. Yi’s
tongue.
There was
no damage to Ms. Yi’s hyoid bone, which is a semi-circular bone that encircles
the neck. Dr. Gliniecki was asked
whether it was unusual in a strangulation case to have an intact hyoid
bone. He explained that in most
strangulation cases, there is an intact hyoid bone with no fracture. The placement of the gag in Ms. Yi’s mouth
would have restricted air if she was alive when it was placed. Although ligature marks extended from ear to
ear on the front of her neck, there were no ligature marks on the back of Ms.
Yi’s neck. Dr. Gliniecki testified that
marks on the back of the neck could have been prevented if her hair was between
her neck and the ligature.
Alternatively, if the belt was pulled from side to side in a backward
and upward motion, putting all of the pressure on the front of the neck, it
would prevent ligature marks from appearing on the back of the neck. Dr. Gliniecki said this was not
unusual. Ms. Yi’s hair was below the
shoulder in length.
Dr.
Gliniecki testified that a strangulation victim typically passes out from lack
of oxygen within 20 to 30 seconds, but takes six to seven minutes to die. In this case, the belt around the neck, the
gag in the mouth, and the pills in the nostrils all would have blocked
oxygen. The parties stipulated that defendant’s
semen was found in Ms. Yi’s vagina and could have been deposited up to six days
before death.
In an
amended information, defendant was charged with one count of murder, with the
special allegation that he used a knife in the commission of the crime (Pen.
Code, § 12022, subd. (b)(1)).
Defendant pled not guilty. He testified
that Ms. Yi died during an episode of consensual sexual asphyxiation, a theory
supported by a defense pathologist. The
jury found defendant guilty of murder and found the knife use allegation true. Defendant was sentenced to an indefinite term
of 25 years to life on the murder charge, with a one-year enhancement for use
of a knife. Fines and restitution were
ordered, which we discuss as relevant in the last section of this opinion. This timely appeal followed.
DISCUSSION
I
Defendant
argues the trial court erred by requiring that he testify in order to provide a
foundation for defense expert testimony
that Ms. Yi died as a result of consensual sexual asphyxiation. He also claims he was precluded from
cross-examining Dr. Gliniecki on that theory of death. He argues that the ruling violated his
constitutional rights to present a defense and to cross-examine a witness
against him under the Fifth, Sixth, and Fourteenth Amendments to the
States Constitution.
A. Relevant Proceedings
Defense
counsel sought admission of a private pathologist’s report prepared by Gregory
D. Reiber, M.D. Dr. Reiber reviewed Long
Beach Police reports with respect to Ms. Yi’s death, the autopsy report by Dr.
Gliniecki, the transcripts of the preliminary hearing, and police interviews
with defendant. He also reviewed crime
scene and autopsy photographs.
Dr. Reiber concluded that defendant’s statement to the police
describing Ms. Yi shaking as she died was “consistent with a terminal hypoxic
seizure resulting from neck compression by ligature.” He also concluded: “A lack of significant internal neck injury,
the discontinuous nature of the ligature marks and absence of marks on [the]
back of [the] neck all suggest that the belt was not used very forcefully; this
is also consistent with erotic asphyxia that caused sufficient hypoxemia to
produce fatal outcome. Victim’s bruises
on the upper extremities are generally consistent with the account of an
altercation. The non-fatal stab wounds
on the back of the upper neck are also consistent with the defendant’s story,
as is the finding of a pill in the nose.
The fabric gag in the mouth may have been part of an initial erotic
asphyxia event, but was not used as found at the scene, based on bite marks at
tip of tongue. [¶] The cause of death is
asphyxia resulting from compression of the neck by ligature; manner of death,
homicide. The presence of a gag
completely filling the mouth and the sharp force injuries of the neck are
likely perimortem to immediately postmortem and are not considered part of the
cause of death, based on the autopsy
evidence.”
Before jury
selection, the prosecution notified the court that it intended to move to
exclude Dr. Reiber’s report. The court
initially indicated that it had not read the report, but said if Dr. Reiber had
made assumptions about which only the defendant could have knowledge, then Dr.
Reiber would not be allowed to testify about the report unless the defendant
took the stand. The court then read the
report and said that it “talks about the description and the defendant’s story
in this particular case, which if it comes from any other source would be
self-serving hearsay, so unless the defendant takes the stand
. . . .” Defense counsel
interjected that the prosecution could put the defendant’s story into evidence. The court ruled that Dr. Reiber would not be
allowed to testify unless the defendant took the stand “because the assumption
goes to defendant’s quote unquote, ‘story’ which is what is listed here and he
apparently interviewed the defendant. So
if the defendant takes the stand then he can use the expert, obviously.”
Defense
counsel clarified that the interview to which Dr. Reiber referred was the
police interview of defendant, not a personal interview with him. The court said this was understood, but that
Dr. Reiber appeared to be relying on the defendant’s self-serving hearsay. The prosecutor then said that she anticipated
using defendant’s statements to the police officers about how the death
occurred. Her position was that
defendant’s statements were not consistent with Dr. Reiber’s conclusions about
cause of death, “which is the reason why the People believe that the defendant
would need to testify in order for the doctor’s foundation to be laid.” The court said it agreed, and that it was an
issue of foundation.
The issue
was revisited by defense counsel
before he cross-examined Dr. Gliniecki, the medical examiner. Defense counsel asked permission to
cross-examine Dr. Gliniecki about Dr. Reiber’s report. The court ruled: “You cannot do that. You know why, procedurally if your client
does not take the stand, you cannot call your coroner. What if your client decides he does not want
to take the stand, then the cat is out of the bag.” The court said it would order Dr. Gliniecki
to return for cross-examination after defendant and Dr. Reiber testified.
After
lengthy cross-examination of Dr. Gliniecki, at sidebar defense counsel informed
the court that he would like to examine the witness about sexual asphyxia. He said:
“However, I understand that, at this moment there is no foundation for
the sexual asphyxia, so . . . [b]efore the foundation is laid, I
want to do it. I’d like to do it now
while he [Dr. Gliniecki] is here . . . .” The court responded that it had already ruled
that this line of questioning would not be allowed unless defendant took the
stand. But it also said that Dr.
Gliniecki would be made available to be recalled.
Defendant
testified in his own defense. He said
that he and Ms. Yi had used the belt during sex at least 20 times. He usually used the belt from a position
behind her. It was always consensual and
they were not aware of any danger the practice posed. After arguments, they would have makeup
sex.
Defendant
and Ms. Yi argued over money on March 31.
Ms. Yi became furious and hit and kicked defendant. He shoved her away and left the bedroom. While he was in the living room with Ms.
Ryman, Ms. Yi came out with a pile of his belongings and threw it outside the
door. She was still angry and told
defendant to get out. She returned to
her room and came out a second time with another pile of defendant’s things,
which she left outside the door. After a
time, Ms. Yi returned to her bedroom, followed by defendant. Eventually they both cried, then started
having sex. Ms. Yi got a belt out and
together they put it around her neck. As
they had intercourse, defendant pulled on the belt, but not hard enough to hurt
anyone. On previous occasions, the belt
had not left any marks and had not been uncomfortable for Ms. Yi.
When
defendant moved, Ms. Yi did not respond.
He turned her over and slapped her slightly. He thought she was still breathing, but was
not sure. So he got the stethoscope and
tried to listen for a heartbeat. He
heard no heartbeat but she was still breathing.
He tried mouth to mouth breathing and pushed on her stomach, but did not
know how to do CPR. He tried to get the
belt off but it was stuck. Then he tried
to cut it off with a knife, which was unsuccessful. He cut her neck instead. Ms. Yi had started shaking. He knew she was not alive, so he put the
panties in her mouth, the pills in her nose, and put her in the closet. He did not call paramedics because her heart
had already stopped. He grabbed some
things and ran away because he was scared.
On appeal, counsel for defendant describes the cross-examination of
defendant as “vigorous, unrelenting and debilitating.”
After
defendant testified, Dr. Reiber testified.
He described erotic asphyxia. He
said there were a number of findings in this case consistent with erotic
asphyxia. The marks on Ms. Yi’s neck
from the belt were not continuous and were fairly light in color. There was almost no internal neck injury, no
injury to the hyoid bone or structure of the voice box, and the ligature mark
did not involve the back of the neck.
There were no head injuries to indicate Ms. Yi had been knocked
out. In his opinion, one of the marks on
her neck was caused by the pressure of the belt on her body as positioned in
the closet after death. Dr. Reiber
opined that the cuts to the back of Ms. Yi’s neck were inflicted either shortly
before or after death. He testified that
the panties most likely were placed in Ms. Yi’s mouth after she bit her tongue
in the dying process. Dr. Reiber did not
observe any skin injuries around the neck that would have resulted from
fingernail scratches. This suggested to
him that Ms. Yi did not attempt to pry the belt from her neck. The only major differences he had with the
medical examiner’s conclusions were that the gag and knife wounds did not
contribute directly to the cause of death.
On
cross-examination, Dr. Reiber testified that it was possible that Ms. Yi was
alive when the gag was put in her mouth but was defenseless from lack of oxygen
due to strangulation with the belt.
After viewing a photograph of Ms. Yi’s hair, he agreed that it was
possible that there were no ligature marks on the back of her neck because her
hair was between the skin and the belt.
There was hair entwined in the belt.
Dr. Reiber was presented with a hypothetical by the prosecution based on
the one foot height differential between defendant and Ms. Yi. He agreed that if the taller person was
pulling the ligature upward and toward the back, that would result in ligature
marks primarily to the front and sides of the neck, but not the back. Defendant did not ask that Dr. Gliniecki be
recalled for additional cross-examination on the sexual asphyxiation
defense.
B. Legal Principles
Dr.
Reiber’s testimony was premised on the preliminary fact that defendant and Ms.
Yi were engaged in consensual sexual asphyxiation immediately prior to her
death. “When the relevance of proffered
evidence depends on the existence of a preliminary fact, the proponent of the
evidence has the burden of producing evidence as to the existence of that
preliminary fact. (Evid. Code, § 403,
subd. (a)(1).) The proffered evidence is
inadmissible unless the trial court finds sufficient evidence to sustain a
finding of the existence of the preliminary fact. (Ibid.;
see also People v. Marshall (1996) 13
Cal.4th 799, 832 [‘the trial court must determine whether the evidence is
sufficient to permit the jury to find the preliminary fact true by a
preponderance of the evidence’].) ‘The
decision whether the foundational evidence is sufficiently substantial is a
matter within the court’s discretion.’
[Citations.]” (
1102–1103.)
These
principles apply to the opinions offered by an expert witness. “‘[T]he value of an expert’s opinion depends
on the truth of the facts assumed.’
[Citation.] ‘Where the basis of
the opinion is unreliable hearsay, the courts will reject it.’ [Citations.]
It is settled that a trial court has wide discretion to exclude expert
testimony, including hearsay testimony, that is unreliable. [Citations.]”
(People v. McWhorter (2009)
47 Cal.4th 318, 362 (McWhorter).) It is established that an expert witness’s
opinion “‘may not be based “on
assumptions of fact without evidentiary support [citation],
. . . . [¶] Exclusion of
expert opinions that rest on guess, surmise or conjecture [citation] is an
inherent corollary to the foundational predicate for admission of the expert
testimony: will the testimony assist the
trier of fact to evaluate the issues it must decide” [Citation.]’
(People v. Richardson (2008)
43 Cal.4th 959, 1008, italics added.)”
(People v. Moore (2011) 51
Cal.4th 386, 405 (Moore).) We review a ruling on the admissibility of
expert testimony for abuse of discretion.
(Id. at p. 406.)
C. Arguments
Defendant
argues that the trial court’s ruling requiring him to testify in order to
provide a foundation for Dr. Reiber’s testimony put his “right against
self-incrimination on a collision course with his rights to present a defense
and a fair trial, where one had to yield to the other.” He also contends the trial court
misunderstood the factual basis for the sexual asphyxiation defense. Defendant asserts that a foundation was laid
by prosecution evidence, including the testimony of Dr. Gliniecki, defendant’s
second statement to police officers at the station, the condition of the body
when discovered, his relationship with Ms. Yi, evidence that he and Ms. Yi
recently had sexual intercourse, and the absence of vaginal trauma. He contends that since there was evidence to
support the defense of sexual asphyxiation, it was error to require him to
testify before allowing Dr. Reiber to testify and permitting cross-examination
of Dr. Gliniecki about whether Ms. Yi died during an episode of sexual
asphyxiation.
1. Asserted Trial Court Misunderstanding
Defendant
argues that the trial court erroneously believed that Dr. Reiber relied on a
personal interview with him, rather than on his statements to the police, in
forming his opinions regarding cause of death.
Although the trial court initially appeared mistakenly to believe that
Dr. Reiber had spoken with defendant before writing his report, this
misapprehension was immediately corrected by both defense counsel and the
prosecutor. They made it clear that Dr.
Reiber was relying on statements made to police officers. The court stated that it understood, but that
the statements were “self-serving hearsay” and that the statements made by
defendant to the police were not consistent with the facts on which Dr.
Reiber’s opinion was based and therefore there was an issue of foundation. Defendant disputes the characterization of
his statements to the police as “self-serving,” arguing instead that they were
inculpatory because he admitted to engaging in an act which caused Ms. Yi’s
death, concealing her death, and lying to law enforcement. He reasons therefore that the court abused
its discretion because it did not act in an informed manner.
As
respondent points out, after counsel clarified that Dr. Reiber was relying on
defendant’s statements to police officers, the trial court said the problem
with admission of the testimony was lack of foundation. When he sought to cross-examine Dr. Gliniecki
on sexual asphyxiation, defense counsel acknowledged: “I understand at this moment there is no
foundation for the sexual asphyxia . . . .” Defense counsel continued: “Before the foundation is laid, I want to do
it [examine on sexual asphyxia]. I’d
like to do it now while he is here . . . .” The court reminded counsel of the ruling that
this subject could not be raised without a foundation and offered to make Dr.
Gliniecki available later if an adequate foundation was laid.
On this
record, we conclude that the trial court did not base its ruling on the
erroneous belief that Dr. Reiber had personally interviewed defendant about
engaging in sexual asphyxiation which led to Ms. Yi’s death. Defendant did not demonstrate abuse of discretion
on this ground.
2. Other Claimed Foundation for Evidence of
Sexual Asphyxiation
Defendant
cites evidence that established that he and Ms. Yi had been in a long-term
romantic and sexual relationship. He
asserts that while there was evidence of the presence of his semen in Ms. Yi’s
vagina, there was no evidence of
external genitalia or anus. In addition
he relies on evidence that she was found undressed from the waist down and her
bra was pulled up above her breasts.
From this, he asks that we conclude there was a sufficient foundation
that he and Ms. Yi were engaged in consensual sexual asphyxiation at the time
of her death.
Forensic
evidence regarding the belt around Ms. Yi’s neck, the ligature marks, and the
condition of her neck are also cited by defendant as evidence that she died
during consensual sexual asphyxiation.
He refers to evidence that while there were ligature marks to the front
of her neck, there were none on the back of the neck. In addition, there was no damage to Ms. Yi’s
hyoid bone (in her neck), no swelling or edema on the larynx or injury to the
vital organs of the throat, and only one small internal bruise under the
ligature marks. There were no fingernail
marks to suggest that Ms. Yi had attempted to loosen the belt.
Evidence of
defendant’s semen on Ms. Yi’s body, the absence of external traumatic injury to
her vaginal area or anus, and the condition of her body when discovered
constitutes generic evidence of sexual behavior but does not support a
conclusion that she and defendant were engaged in consensual sexual
asphyxiation which caused her death.
According to Dr. Gliniecki, the semen could have been deposited as much
as six days before death. He also
testified that in the majority of strangulation cases he had worked on, the
hyoid bone was intact. He testified that
there were two possible explanations for the absence of ligature marks on the
back of Ms. Yi’s neck. The first was
that her hair may have been between her skin and the belt. This was supported by evidence that Ms. Yi’s
hair extended below her shoulders and the significant amount of her hair caught
up in the belt. Alternatively, he opined
that if the belt was pulled from side to side and in a backward and upward
motion, putting all pressure on the front of the neck, there would be no
ligature marks on the back of the neck.
We conclude
that the forensic evidence alone was
not sufficient to establish a foundation for the sexual asphyxiation defense.
3. Defendant’s Statements to Law Enforcement
Defendant
contends that the foundation for the sexual asphyxiation defense was laid by
his statements in the interview recorded at the Long Beach Police
Department. During that interview,
appellant described using a belt on Ms. Yi’s neck during sex because it made
her feel better. On the day she died,
they had consensual intercourse while using the belt for sexual asphyxia. A physical altercation then broke out during
which Ms. Yi had the belt around her neck.
During this altercation, defendant said he hit her in the neck and she
fell to the floor, and started making a gurgling sound. From this, defendant argues: “While it is clear that Kate did not die as a
result of a punch to the neck, appellant’s statement to law enforcement allowed
for the distinct possibility that Kate died during an episode of erotic
asphyxia as Dr. Reiber concluded in his report.”
This
argument is contrary to the sequence of events described by defendant in his
statement to law enforcement officers.
He described having intercourse with Ms. Yi while he pulled on a belt
around her neck at her request. In the
middle of that episode, Ms. Yi started talking about money. Defendant stopped having sex with her and an
argument broke out over whether Ms. Yi only wanted defendant for money. Defendant said Ms. Yi started hitting him and
kicking him in the testicles. He walked
out to the living room and spoke with Ms. Ryman.
According
to defendant’s statement to police, he then returned to the room and resumed
having sex with Ms. Yi, who put the belt back around her neck. “And then we were having sex, and then, and
then I got back up, or I asked her if this is still a money thing and if she is
only doing this for that. And I know I
shouldn’t have asked her because it made her angry again. And that’s when she (unintelligible) and
that’s when I finished it and I asked her and she shoved me and I was like what
are you doing, what did I do I just
want to figure it out so I don’t feel like I’m being used. And I’m being selfish first time ever. And then I thought I was hoping [Ms. Ryman]
would go back in and talk to Kate so she wouldn’t hit me anymore. Because your [sic] not suppose to hit people.”
Then he said he was about to leave and Ms. Yi said she was about to
leave too. But first, he wanted to talk
one last time to settle the relationship.
According
to the statement, defendant said Ms. Yi started hitting him again and “that’s
when I finally punched her once.” He
said this was when Ms. Yi fell down and “she started making gurgling
sound.” From that point in the
interview, defendant described trying to revive Ms. Yi as she died, and
concealing her body in the closet.
This
account, if credited, establishes that defendant and Ms. Yi had stopped having
sex before the physical altercation during which she fell to the ground
gurgling. Once intercourse ended,
according to defendant, Ms. Yi was able to get up and physically attack him by
hitting him. She was able to talk and
argue with him. This evidence does not
support the defense theory that Ms. Yi died accidentally during an episode of
consensual sexual asphyxiation.
Nor does
anything else in defendant’s other statements to law enforcement officers
support that theory. When he first spoke
to officers in the police car at the mall, defendant denied any knowledge of
Ms. Yi’s whereabouts. He said he had
broken up with her and was not concerned about what was going on with her. Instead, he asked the officers about
fingerprinting and whether they had triangulated or pinged Ms. Yi’s
telephone. In the second statement,
recorded in the officers’ car parked at the mall, defendant said he had had sex
with Ms. Yi twice two or three days before, using a condom each time. He described the argument over money. In this version, when Ms. Yi put his
belongings outside the apartment, she told him to leave. When he did not, she left. He told the officers that Ms. Yi
sometimes liked rough sex, being pushed on her chest or stomach with his
hands. He did not say they used a belt
during sex the last time he saw her.
Detective Mendoza’s description of the unrecorded portion of his interview
with defendant at the Long Beach Police Department made no mention of sexual
asphyxiation.
D. Analysis
Defendant
argues that this case is akin to the prejudicial error that occurred in
1242 (Lawson) and
785 (Cuccia). We disagree.
Lawson arose in a different
context. In that case, the defendant was
arrested on a narcotics charge. When
arrested, he was accompanied by Theresa Martinez. The defense attempted to call Martinez as a
witness, although copies of a defense investigator’s notes of an interview with
her had not been provided to the prosecution and she was not listed as a
defense witness. The trial court found
defense counsel had wrongfully withheld Martinez’s name from the witness list. As a sanction, the court refused to allow
Martinez to testify and ordered Lawson to call his next witness. When informed by counsel that Martinez was
the only planned defense witness, the trial court said that Lawson could either
call another witness or rest. Since the
defense had no one else available to describe his version of events, defendant
took the stand and testified. (
corrected the record, revealing that a previous prosecutor on the case had
known about Martinez, and had given her name and field identification card to
the defense. The prosecution had not
attempted to locate or interview Martinez because she was viewed as favorable
to the defense. The court then reversed
itself and allowed Martinez to testify.
During closing argument, the prosecutor attacked Lawson’s credibility
with his prior convictions. The jury was
instructed it could consider the importance of the defense failure to turn over
the investigator’s notes of the Martinez interview. (Id.
at p. 1245.)
The Court
of Appeal held that the trial court erred in barring Martinez’s testimony
because it was based on a misapprehension of the facts, and other sanctions
were available. There was no indication
that the appellant himself contributed to the omission of Martinez’s name from
the witness list. Although Martinez was
later allowed to testify, the damage had been done in that the jury learned of
the appellant’s four prior convictions.
The instruction on the discovery violation also was found to be
error. The errors were prejudicial. (Lawson,
supra, 131 Cal.App.4th at p. 1249.)
distinguishable. In that case, the Court
of Appeal concluded that the trial court erred in forcing the defendant to
testify out of order and by refusing to allow him to testify after the
prosecutor was allowed to reopen rebuttal.
The cumulative errors violated the defendant’s due process right to a
fair trial. (Id. at p. 789.) The trial
judge had warned counsel at the beginning of trial to have ample witnesses
available to avoid having the jury inconvenienced by a wait for witnesses. It threatened to rule that counsel had rested
its case if it ran out of witnesses.
After the defense’s sixth witness was called, but could not be located,
the trial court reminded defense counsel of this warning. In the presence of the jury, the trial court
said it recalled that the defense had planned to have the defendant testify and
asked whether counsel had changed his mind.
Defense counsel did not object, and the defendant testified until the
evening recess. The next day the rest of
the defense witnesses testified before the defendant was recalled to complete
his testimony. (Id. at pp. 790–791.) Defense
counsel requested a mistrial during a recess while closing arguments were
underway. The trial court denied the
motion. Based on the trial court’s
threat to consider his case rested if he did not testify, the
defendant’s testimony was coerced. (
defendant an opportunity to testify after the prosecution was allowed to reopen
its case to present additional evidence.
(Id. at p. 794.) The cumulative effect of the two errors was
found to have substantially impaired the defendant’s right to a fair trial and
the judgment was reversed. (
Coercion of
the defendant in the manner discussed in Lawson,
supra, 131 Cal.App.4th 1242 and
sanction for a perceived discovery violation or because he ran out of
witnesses. Contrary to defendant’s
characterization, the issue is not whether his testimony was coerced, but
rather whether he presented an adequate foundation for Dr. Reiber’s testimony
and his cross-examination of Dr. Gliniecki on sexual asphyxiation.
criminalist described a small bloodstain on the living room carpet, the only
bloodstain found in that room. Over
defense objections based on lack of foundation and Evidence Code section 352,
the criminalist was allowed to answer a hypothetical question assuming that the
bloodstain was deposited by a human being and asking how the person had to have
been positioned when the stain was made.
The criminalist said the person had to be at or near the surface of the
carpet, but on cross-examination said he could not determine whether the
bloodstain was deposited from a person or an object. (Id.
at p. 405.) The Supreme Court
concluded that the hypothetical “was not rooted in the facts shown by the
evidence; rather it was an ‘“assumption[ ] of fact without evidentiary
support.”’ [Citation.] The hypothetical question thus called for an
opinion without adequate foundation.” (
The Moore court
explained: “[W]hen the proposed expert
testimony rests on an assumption without any support in the trial evidence, the
court does abuse its discretion in admitting it. Such testimony has little or no probative
value, bears the potential to mislead the jury into accepting the unsupported
assumption and drawing from it unwarranted conclusions, and thus cannot
significantly ‘help the trier of fact evaluate the issues it must decide.’ [Citation.]”
(Id. at p. 406.)
A
foundational deficiency also was examined in McWhorter, supra, 47
Cal.4th 318. A mother and son were
murdered in their apartment and found a week later. Because of the advanced decomposition of the
bodies, no exact cause of death could be determined, although both victims died
as the result of homicide. The defendant
and his wife had lived in an adjoining unit until one week before the murders. (Id. at
pp. 324–325, 331.)
Based on
examination of crime scene photographs, the defense forensic pathologist in
due to carbon monoxide poisoning. The
defendant’s wife testified in support of the theory. When she and defendant moved out of the
apartment next door to the victim’s unit, defendant moved a washing machine
into an adjacent water heater shed and caused a gas leak by bumping a natural
gas valve leading to the water heater.
Photographs of the crime scene showed that a bathroom window between the
victims’ apartment and the water heater shed was slightly open. Before trial began, the prosecution moved to
exclude anticipated testimony of a defense forensic engineer that the deaths
could have been caused by a lethal concentration of carbon monoxide produced by
the water heater which entered through the partially opened window. The prosecution argued this report was
inadmissible as based on speculation and conjecture. After an Evidence Code section 402 hearing,
the trial court ruled his testimony inadmissible. (McWhorter,
supra, 47 Cal.4th at pp. 361–362.)
The
discretion in the ruling that the testimony was inadmissible on the grounds “it
was unduly speculative, based on unreliable hearsay, and without an adequate
foundation.” (McWhorter, supra, 47
Cal.4th at p. 362.) The court concluded
that the expert’s assumption that an exhaust vent on top of the water heater
had become dislodged by defendant, was based on unsubstantiated hearsay. This was because it was based on a defense investigator’s
report about an interview with defendant’s wife, but the investigator was not
called to testify and authenticate that report at the hearing. (Ibid.) Significantly, the wife’s trial testimony
contradicted information in the defense investigator’s report attributed to
her, and therefore did not furnish a factual basis for the engineer’s
opinion. She was not asked to
authenticate the report of the defense investigator. (Id.
at p. 362, fn. 16.) The court also
pointed out that the engineer said his opinion hinged on whether the water
heater exhaust vent had been dislodged, but there was no evidence that this had
occurred. (Id. at p. 363.) Finally, the
water heater at the victims’ unit had been replaced and discarded in the time
between the murders and trial and no information was available about it. (Ibid.)
The Supreme
Court in McWhorter rejected the
defendant’s claim that the asserted error in excluding the engineer’s report
was of constitutional dimension because it violated his Sixth Amendment
was presented through the testimony of defendant’s wife and the defense
pathologist. (McWhorter, supra, 47
Cal.4th at p. 363; see also People v.
Cowan (2010) 50 Cal.4th 401, 473–474 [ruling excluding certain evidence
regarding defense did not amount to a refusal to allow defendant to present the
defense through admissible testimony and evidence]; Menendez v. Terhune (9th Cir. 2005) 422 F.3d 1012, 1031–1032
[affirming trial court ruling that defendants were required to testify to lay
foundation for defense that they murdered their parents because they feared
imminent peril].)
In summary,
without defendant’s testimony, there was no evidence to support the defense
that Ms. Yi died during a consensual episode of sexual asphyxiation. The trial court did not abuse its discretion
in so ruling. This was an evidentiary
ruling rather than coercion of defendant’s testimony and thus there was no
constitutional violation.
II
Defendant
argues the trial court erred in denying his Pitchess
records of Detectives Rios and Mendoza, pursuant to Evidence Code sections 1043
and 1045. He frames this as a constitutional
issue, a violation of his Sixth and Fourteenth Amendment right to confrontation
as well as his right to a fair trial under the Fifth, Sixth and Fourteenth
Amendments to the United States Constitution.
The record on the motion and the briefing on this issue were all sealed
by this court. We asked counsel to
submit their views as to unsealing the record pursuant to California Rules of
Court, rule 8.46 (f). After counsel for
appellant stated she had no objection to unsealing the record, and receiving no
response from respondent, we ordered the record and briefs unsealed.
A. Relevant Trial Court Proceedings
Defendant’s
motion was extremely broad, seeking all complaints relating to acts of
“aggressive behavior violence, excessive force, or attempted violence or
excessive, racial bias, gender bias, ethnic bias, sexual orientation bias,
coercive conduct, violation of constitutional rights, fabrication of charges,
fabrication of evidence, fabrication of reasonable suspicion and/or probable
cause, illegal search/seizure; false arrest, perjury, dishonesty, writing of
false police reports, writing of false police reports to cover up the use of
excessive force, planting of evidence, false or misleading internal reports
including but not limited to any false overtime or medical reports, and any
other evidence of misconduct amounting to moral turpitude within the meaning of
People v. Wheeler (1992) 4 Cal.4th
284 . . . .” In addition, defendant
sought records of any discipline imposed on the officers resulting from citizen
complaint; exculpatory or impeaching evidence within the meaning of
hearing transcripts, contact information for witnesses, and findings regarding
alleged misconduct by the officers. The
motion was supported by a declaration of defense counsel. Copies of two police reports (supplemental
reports Nos.18 and 43) were attached to the motion.
The City of
Long Beach opposed the motion, arguing that it was overbroad, and sought
material irrelevant to the defense and not properly the subject of a
prosecution, like Brady material and
civil service records).
The
motion’s theory was that Detectives Rios and Mendoza lied in police reports
when they said defendant agreed to be transported to the Long Beach Police
Department to be interviewed and that he was told he could leave at any time
during the interview. The supporting
declaration by defense counsel stated:
“Mr. Huynh was not free to leave, did not agree to be transported, and
was prevented from leaving as he had requested by his detention. He was then coerced by the detectives into
making a statement against his will by both detectives’ threats to never let
him leave until he told them what they wanted to hear at which point he was
promised that he could, finally, leave.
Mr. Huynh was told by the detectives that he could not leave the police
department until he told them what the detectives wanted him to say.”
At oral argument
on the motion, defense counsel said: “We
are essentially saying that the detectives wrote a false report because they
said that my client was and I quote ‘advised he could leave at any time during
the interview’ but the police report states that later, in the police report,
that he was told that he could not leave as he was being detained. So the police report contradicts itself. It says he agreed to be transported freely
and voluntarily. It also says that he
was told that he was detained and could not go anywhere. They filed a report that is wrong and
incorrect. I don’t know
. . . why they would say something like he was free to leave and
told him he was detained. Based on that,
we would ask for information and [personnel] files regarding false police
reports and dishonesty.” At that,
counsel submitted. Counsel for the City
of Long Beach objected, arguing that under the relevant case law, a request for
material regarding dishonesty is overbroad.
In addition, he contended defendant had not demonstrated the claimed
misrepresentation was material. Counsel
objected that defendant had failed to specify which statements were coerced or
whether they were material. He pointed
out that defendant does not deny committing the crime, and contended there were
no specific facts or alternate explanations as to what occurred. The trial court denied the motion, saying it
was persuaded by the argument made by counsel for the City of Long Beach.
B. Legal Principles
In
criminal defendant had a right to discover complaints of excessive force in a
law enforcement officer’s personnel file arising from the right to a fair trial
and an intelligent defense. (
The procedure for such discovery
was codified by the Legislature in Evidence Code section 1043 et seq. (Haggerty
v. Superior Court (2004) 117 Cal.App.4th 1079, 1085.) “[A] defendant must file a motion describing
the type of records sought and showing, among other things, the materiality of
the information to the subject of the pending litigation and good cause for
disclosure. ([Evid. Code,] §§ 1043,
1045.) ‘To show good cause as required
by section 1043, defense counsel’s declaration in support of a
or defenses to the pending charges. The
declaration must articulate how the discovery sought may lead to relevant
evidence or may itself be admissible direct or impeachment evidence [citations]
that would support those proposed defenses.’
(Warrick v. Superior Court
(2005) 35 Cal.4th 1011, 1024 [(Warrick)].) ‘Counsel’s affidavit must also describe a
factual scenario supporting the claimed officer misconduct.’ (Ibid.) ‘The court then determines whether
defendant’s averments, “[v]iewed in conjunction with the police reports” and
any other documents, suffice to “establish a plausible factual foundation” for
the alleged officer misconduct and to “articulate a valid theory as to how the
information sought might be admissible” at trial. [Citation.] . . . What the
defendant must present is a specific factual scenario of officer misconduct
that is plausible when read in light of the pertinent documents.’ (Id.
at p. 1025.) ‘[A] plausible
scenario of officer misconduct is one that might or could have occurred. Such a scenario is plausible because it
presents an assertion of specific police misconduct that is both internally
consistent and supports the defense proposed to the charges.’ [Citation.]
Materials from an officer’s personnel file reflecting dishonesty or
nonfelony acts of moral turpitude do not become discoverable simply because a
defendant argues that the officer will testify and might testify falsely. (California
Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1023–1024 (
(Eulloqui v. Superior Court
(2010) 181 Cal.App.4th 1055, 1063–1064.)
We review the trial court’s ruling on a Pitchess motion for abuse of discretion. (People
v. Sanderson (2010) 181 Cal.App.4th 1334, 1339 (Sanderson).)
The good
cause showing is a “‘relatively low threshold for discovery.’ [Citation.]”
(Garcia v. Superior Court (2007)
42 Cal.4th 63, 70.) “If the defendant
establishes good cause, the court must review the records in camera to
determine what, if any, information should be disclosed. [Citations.]”
(Id. at pp. 70–71.) “‘[A] plausible scenario of officer
have occurred.’ ([Warrick, supra, 35
Cal.4th] at p. 1026.) A scenario is
plausible when it asserts specific misconduct that is both internally
consistent and supports the proposed defense.
(Ibid.) ‘A defendant must also show how the
information sought could lead to or be evidence potentially admissible at
trial.’ (Ibid.) A defendant who meets
this burden has demonstrated the materiality requirement of [Evidence Code]
section 1043. (Warrick, at p. 1026.)” (
The Warrick court emphasized
that in considering a Pitchess motion,
“[t]he trial court does not determine whether a defendant’s version of events,
with or without corroborating collateral evidence, is persuasive—a task that in
many cases would be tantamount to determining whether the defendant is probably
innocent or probably guilty.
[Citation.]” (
Here,
defense counsel outlined a plausible factual scenario that the officers coerced
defendant’s admissions by detaining him for questioning until he told them what
they wanted him to say, contrary to the assertions in the police reports that
defendant was free to go and went to the police station voluntarily for
questioning. To the extent the discovery
request sought evidence that Detectives Rios and Mendoza had coerced admissions
by suspects in other cases, it demonstrated good cause warranting in camera
inspection of the personnel files of these officers. But defendant’s discovery request was
overbroad. Good cause was not
demonstrated for records other than Long Beach Police Department personnel
records related to prior complaints that Detectives Rios and Mendoza engaged in
conduct to coerce confessions from suspects and was properly denied as to these
grounds.
Our
conclusion as to good cause as to the possibility of coercion is supported by
Cal.App.4th 1043 (Uybungco). In that case, the officers stated that while
attempting to quell a bar fight, Uybungco advanced on them in a threatening
manner, then resisted arrest, and dislodged a window in a patrol car. Uybungco denied these claims. (Id.
at p. 1047.) In a Pitchess motion, he sought evidence of, or complaints about, a
variety of misconduct, including false statements in police reports, or false
testimony. He submitted a supporting
declaration saying the officers were the aggressors in the incident and denying
wrongdoing. He specifically contended
that the officers lied in their reports in describing his conduct. (Ibid.) The trial court ruled that it would review
the files for evidence related to excessive force as to two officers, did not
clearly agree to review the files of those officers for false statements in
police reports, and denied the motion entirely as to two other officers. (Id.
at p. 1048.)
The Court
of Appeal held that Uybungco’s declaration alleging that he did not resist
arrest, and that other statements about his misconduct in the police reports
were false, satisfied the low threshold for in camera review “as they depict a
scenario ‘that might or could have occurred’ and are plausible in that they
‘present[ ] an assertion of specific police misconduct that is both internally
consistent and supports the defense proposed to the charges.’” (Uybungco,
supra, 163 Cal.App.4th at pp.
1049–1050, quoting Warrick,
1026.) The declaration was sufficient to
compel the trial court to conduct an in camera review of the personnel records
of the officers for information that they had previously included false
information in a police report. The
refusal of the trial court to do so constituted an abuse of discretion. (Uybungco,
at p. 1050.)
“The remedy
for a failure to conduct an in camera review in this situation was established
in People v. Gaines [(2009)] 46
Cal.4th 172. As the Gaines court explained, the proper remedy ‘is not outright
reversal, but a conditional reversal with directions to review the requested
documents in chambers on remand.’ (
in chambers, the trial court may determine that the requested personnel records
contain no relevant information.’ (
judgment. (Ibid.) Even if the in camera
review reveals relevant information, reversal is not necessarily required. The defendant ‘must also demonstrate a
reasonable probability of a different outcome had the evidence been
disclosed.’ (Id. at p. 182.) If defendant
does demonstrate such a probability, the court must order a new trial; if he
does not, the judgment shall be reinstated.
(People v. Gaines,
v. Moreno (2011) 192 Cal.App.4th 692, 703, fn. omitted (
in camera review of discoverable materials made it unnecessary to reach the
defendant’s contention that he was denied his federal constitutional rights to
due process, confrontation, compulsory process, a fair trial, and a meaningful
opportunity to present a complete defense.
(Id. at p. 703, fn. 5.)
We will
conditionally reverse in order to allow in camera review of discoverable
materials to the extent, if any, they pertain to the claim defendant’s
statements were coerced, under the procedure outlined in People v. Gaines, supra,
46 Cal.4th 172 and Moreno,
reach defendant’s arguments that denial of his Pitchess motion violated his federal constitutional rights to
confrontation, a fair trial, and due process.
(Moreno, supra, 192 Cal.App.4th at p. 703, fn. 5.)
III
Defendant
and the People agree that the trial court erred in imposing a $520 assessment
and surcharge pursuant to Government Code section 7600 and Penal Code section
1464 on the restitution fine of $5,200 under Penal Code section 1202.4,
subdivision (b) and on the parole revocation fine of $5,200 under Penal Code
section 1202.45, which was stayed. We
concur.
| Description | Jonathan Huynh appeals from his judgment of conviction by jury verdict of murder (Pen. Code, § 187, subd. (a)). He argues his constitutional rights to remain silent, to due process, and a fair trial were violated by the court’s order that he could not present a defense without admissible evidence of the foundational basis, which could only come from defendant’s testimony. He also contends the trial court erred in denying his Pitchess motion, and that the court erred in imposing a $520 assessment and surcharge. Respondent concedes error with respect to the last issue. We conclude that defendant’s rights were not violated by the trial court’s order that his testimony was necessary to lay a foundation for the defense that the victim died during a consensual episode of sexual asphyxiation. The trial court erred in denying defendant’s motion for discovery of material in the personnel files of two investigating detectives, as related to the defense that his statements to them were coerced. We shall conditionally reverse the judgment to allow the trial court to conduct the appropriate in camera review, as we explain. We reverse as to the $520 penalty assessment imposed on the restitution fines. |
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