P. v. Han
Filed 4/17/13 P. v. Han CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
SANG DAE HAN,
Defendant and
Appellant.
2d Crim. No.
B238541
(Super. Ct.
No. PA069136)
(Los
Angeles County)
Sang Dae Han appeals his
conviction, by jury, of one count of continuous
sexual abuse of a minor (Pen. Code, § 288.5),
and one count of aggravated sexual
assault on a child under 14 years of age.
(§ 269, subd. (a)(2).) He
was sentenced to state prison for 31 years to life. He appeals contending his conviction of
violating section 269 must be reversed because the
offense. He further contends the trial
court prejudicially erred when it permitted the victim's mother to testify that
the victim had been raped because the mother had no personal knowledge of the
incident. We affirm.
Facts
Appellant married Connie
Han in the 1980s. At the time, Connie
had a five-year old daughter, Sarah J., from a previous marriage. Sarah testified that appellant molested her
on numerous occasions, beginning when she was five years old and ending when
she was 12. Appellant would instruct
Sarah to take off her clothes and then rub or "flick" his penis along
her vagina. On some occasions, Sarah
would go to sleep in her bed, wearing her pajamas and wake up in appellant's
bed, naked. The molestations happened
while Connie was out of the house, working at her job as a nurse. On August
1, 1995, appellant placed his penis inside Sarah's vagina. She
screamed in pain and appellant stopped.
Sarah remembered the date because it was the day she got braces on her
teeth. That same day, Sarah disclosed
the abuse to a friend, Roxana. Roxana's
mother told Connie, who confronted appellant.
Appellant left the family house, but returned about one week later. Although they continued to live in the same
house, appellant stopped molesting Sarah.
Sarah eventually left home for college and later moved to New
York, cutting off contact with her family.
In 2010, when Sarah was
28 years old, she reported the abuse to police in Los
Angeles. She
then made a "pretext" telephone call to appellant from the
station. During the call, appellant
admitted that he molested and raped Sarah.
He confirmed that the molestation began when Sarah was in kindergarten
and that he raped her on the same day she got her braces. Appellant apologized and said he must have
been possessed by a demon when he did these things.
Discussion
Statute
of Limitations
Appellant was charged
with aggravated sexual assault of a child, in violation of section 269,
subdivision (a)(2). He contends the
statute of limitations for a violation of section 269 is set by section 800,
which provides: "Except as provided
in Section 799, prosecution for an offense punishable by imprisonment in the
state prison for eight years or more . . . shall be commenced
within six years after commission of the offense." The limitations period
is not extended by section 801.1, he argues, because section 269 is not one of
the offenses listed in that section.
According to appellant, his prosecution was untimely because it was
commenced 15 years after the rape.
Appellant is incorrect.
A violation of section
269 is "punished by imprisonment in the
life." (§ 269, subd.
(b).) Section 799 provides that
prosecution for an offense punishable by "imprisonment in the state prison
for life or for life without the possibility of parole . . . may
be commenced at any time." As the
court observed in People v. Hale
(2012) 204 Cal.App.4th 961, "[A] straightforward application of
section 799 leads to the conclusion that a violation of section 269 may be
prosecuted at any time." (
Evidentiary
Error
Mrs. Han, appellant's
wife, who speaks both English and Korean, began testifying using a Korean
interpreter. Her testimony quickly
became confusing because, although she was using the interpreter, she also
included English-language words in her answers.
The prosecutor asked Mrs. Han to "tell us why you are here
today." Mrs. Han answered that she
was there because appellant committed "two kinds of crimes." She explained, "The first is he molested
child. What do you say -- and the second
time --" Here, she was interrupted
by the prosecutor and then by the trial judge asking whether she meant to say
"the second time" or "the second one." Mrs. Han explained, "No.
It is not second time. I'm saying
the second crime." Then, this
exchange occurred:
"[Prosecutor]: What is the second time that you are
here to testify about?
"[Witness]: Raping a child before 13 years
of age, or below.
"[Prosecutor]: Mrs. Han, who did the defendant do
this to? Molest and rape?
"[Witness]: Sarah."
Defense
counsel objected that the question called for a legal conclusion and for
hearsay. The objections were
overruled.
Appellant contends the
trial court erred when it permitted this testimony because Mrs. Han lacked
personal knowledge of the incident and her opinion was improper because it was
based on hearsay. No prejudicial error
occurred.
Mrs. Han's testimony
concerning her reasons for testifying was not hearsay or an improper
opinion. First, it was not offered as
evidence that appellant in fact raped Sarah, but instead to establish Mrs.
Han's reasons for testifying. Her
motives for testifying were relevant to, and admissible for the purpose of
evaluating her credibility. (Evid. Code,
§ 780, subd. (j) [jury may consider witness' "attitude toward the action
in which [she] testifies or toward the giving of testimony[,]" in
evaluating credibility].) In addition,
Sarah's statements to Mrs. Han formed the basis for her opinion. Those statements were admissible as prior
consistent statements and were not the subject of an objection at trial. (Evid. Code, § 791; People v. Jones (2003) 30 Cal.4th 1084, 1106-1107.)
Finally, any error in
admitting the statement was harmless because the evidence of appellant's guilt
was overwhelming. Sarah's detailed
testimony was corroborated by her friend, Roxana, and by her medical
records. Most importantly, Sarah's
account was corroborated by appellant himself during the pretext telephone
call. Appellant admitted that he began
molesting Sarah when she was in kindergarten and that he raped her on the day
she got her braces. Mrs. Han's statement
that she was testifying because she believed appellant raped and molested Sarah
would have added little, if any weight to the evidence of his own devastating
admissions. It is not reasonably
probable appellant would have achieved a more favorable result had the
statement been excluded. (
818.)
The judgment is
affirmed.
NOT TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT, P.J.
PERREN, J.
>
Dalila C. Lyons, Judge
Superior Court County of Los Angeles
______________________________
David H. Goodwin, 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, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising
Deputy Attorney General, , Deputy Attorney General, for Plaintiff and
Respondent.
name="_ftn1" title="">[1] All statutory references are to the Penal
Code unless otherwise stated.
