California Court of Appeal Aug 30, 2016 No. D067919Unpublished
Filed 8/30/16 P. v. Tran CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067919
Plaintiff and Respondent,
v. (Super. Ct. No. SCD248768)
PHUOC TRAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Sharon B.
Majors-Lewis, Judge. Affirmed.
Patrick Morgan Ford for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Tami
Falkenstein, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Phuoc Tran guilty of 12 counts of committing a lewd act
upon a child. The crimes were against four different children. As to each victim, the jury
also found true that defendant had substantial sexual conduct with a child under the age
of 14 and committed the crime against more than one victim. The court sentenced
defendant to 15 years to life on counts 1 through 12, for a total term of 180 years to life.
Defendant's central appellate contention concerns the fact that one of the victims
Even if we were to reach the issue, the contention has no merit. M first reported
penis-vaginal contact about 17 days after the last incident. Both the prosecution expert
and the defense expert testified it is unlikely that a medical examination would disclose
injuries after the 72-hour period. This defeats defendant's contention that the
examination "would almost certainly" have shown whether he committed the crime.
Moreover, on the date of the first disclosure, there was no indication that M had been
13
"regularly raped and sodomized." M denied there was any penetration, and there was no
indication she was in any kind of pain or distress. On this record, there is no basis for
finding the social workers and/or law enforcement officials acted in an "outrageous"
manner by failing to offer a forensic medical examination. Although both experts
testified they would have preferred to have a medical examination at this first disclosure,
both indicated this was primarily for healthcare reasons, and not to obtain evidence of the
abuse.
Moreover, it is unclear whether and under what circumstances a wrongful
governmental action can serve as valid grounds for dismissing criminal charges.2 But
assuming the validity of this defense, it precludes a prosecution only " 'in the rarest and
most outrageous of circumstances' " (Miller, The Case for Preserving the Outrageous
Government Conduct Defense (1996) 91 Nw.U. L.Rev. 305, 321), where a prosecution
would violate " 'fundamental fairness, shocking to the universal sense of justice,'
mandated by the Due Process clause of the Fifth Amendment." (United States v. Russell
(1973) 411 U.S. 423, 432.)
For example, in Velasco-Palacios, the reviewing court upheld the dismissal of
criminal charges based on the trial court's finding that the prosecutor had deliberately
altered an interrogation transcript to add a false confession and had provided the
2 In 1979, the California Supreme Court suggested in dicta that "[s]ufficiently gross police misconduct could conceivably lead to a finding that conviction of the accused would violate his constitutional right to due process of the law." (People v. McIntire (1979) 23 Cal.3d 742, 748, fn. 1.) More recently, the court left open the question whether this defense exists and the manner in which it should be raised (pretrial or during trial) in an entrapment case. (People v. Smith (2003) 31 Cal.4th 1207, 1223-1227.) 14
transcript to defense counsel when the prosecutor knew the counsel was attempting to
convince the defendant to settle the case. (Velasco-Palacios, supra, 235 Cal.App.4th at
pp. 446-452.) Focusing on the prosecutor's "conscience shocking" conduct of adding
false information to a transcript and finding that this conduct materially interfered with
the defendant's right to counsel, the court determined the dismissal of the criminal
charges was the appropriate sanction. (Ibid.)
There is no similar basis to dismiss the criminal charges in this case. Unlike a
deliberate falsification of a defendant's pretrial interrogation, there was no evidence
showing the absence of a forensic medical examination on M reflected bad faith or any
form of fundamental unfairness.
2. Claimed Due Process Violation for Failure to Preserve Evidence
In a related argument, defendant contends his due process rights were violated
because the state did not preserve potentially exculpatory evidence by conducting a
forensic medical examination on M. He argues the failure to conduct the examination
violated his due process rights because it was "likely" to show his "guilt or innocence."
Defendant forfeited this argument by not raising it below. He asks this court to
nonetheless reach his contention because it is "an important constitutional issue" and "the
facts here are undisputed." However, the forfeiture doctrine applies to constitutional
issues. (See People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17; People v. Navarro
(2013) 212 Cal.App.4th 1336, 1347, fn. 9.)
Moreover, the relevant undisputed facts do not support defendant's contention.
15
Under California v. Trombetta (1984) 467 U.S. 479 (Trombetta), the state has a
duty "to preserve 'evidence that might be expected to play a significant role in the
suspect's defense.' " (People v. Montes (2014) 58 Cal.4th 809, 837, italics added.)
Defendant is asking this court to extend that principle to impose a duty on the state to
collect potentially exculpatory evidence. Even assuming there is support for such an
extension (see Montes, at p. 838; Miller v. Vasquez (9th Cir. 1989) 868 F.2d 1116, 1120),
a Trombetta duty arises only where the exculpatory value of the evidence is "apparent"
(Montes, at p. 837). As discussed above, it would not have been apparent to law
enforcement officials that a medical examination would benefit defendant's case. The
testimony from both experts supported that when M first disclosed the abuse, it was
unlikely there would be any physical findings to support a true claim of abuse. Thus, a
physical examination would have little or no probative value to support a defense to the
sexual abuse charges.
Further, there is no due process violation on a failure-to-preserve claim unless the
defendant shows law enforcement acted in bad faith with an "animus towards [the
defendant] or [a] conscious effort to suppress exculpatory evidence." (Trombetta, supra,
467 U.S. at p. 488.) There was no evidence of a conscious effort to suppress evidence in
this case.
Defendant contends an "important constitutional issue" is "whether there is a due
process obligation for the police to gather potentially exculpatory evidence . . . through a
routine medical exam that would likely show the defendant's guilt or innocence as to one
of the victims . . . ." (Italics added.) However, this issue is not presented here because
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the factual predicate is missing. There is no evidence in the record showing the medical
examination would "likely show . . . defendant's guilt or innocence . . . ."
3. Instruction Regarding Adverse Inference from Lack of Medical Examination
Defendant contends the court erred in failing to sua sponte instruct the jury that "if
[M] had been physically examined, there would have been no evidence of an injury, even
a healed injury, and that fact alone could be found to establish reasonable doubt." We
reject this argument because the proposed instruction is not an accurate statement of the
law or facts.
Defendant relies on People v. Zamora (1980) 28 Cal.3d 88 (Zamora), in which the
California Supreme Court reversed the defendant's convictions for resisting arrest and
assaulting police officers because the officers' personnel files were wrongfully destroyed
by the city before trial. (Id. at pp. 93-104.) In remanding the case for retrial, the high
court determined that as a sanction for the city's wrongful destruction of the evidence, the
jury should be instructed the destroyed files contained evidence the officers had used
excessive force in the past and that the jury may rely on this information to infer the
officers were prone to use excessive or unnecessary force. (Id. at pp. 99-103.)
Zamora is inapplicable here. There is no showing a public entity engaged in
wrongful conduct in this case. No evidence was destroyed and there was no duty to
conduct a medical examination under the circumstances. Moreover, defendant's
proposed instruction is incorrect and confusing. Even according to his own expert, the
absence of injuries to a child abuse victim does not constitute reasonable doubt. As
17
stated above, Dr. Ticson testified that "most" examinations of children do not result in
physical findings.
Because the instruction is not legally correct, there was no sua sponte duty for the
court to give the instruction. (People v. Kelly (1992) 1 Cal.4th 495, 532.) We likewise
reject defendant's contention that his counsel was ineffective for failing to request the
instruction.3
II. Police Interviews Did Not Preclude a Fair Trial
Defendant contends the trial was unfair because the investigating officers acted
wrongfully by asking "leading and improper questions" to minors. Defendant forfeited
this argument because it was not asserted in the court below. Additionally, the argument
fails on its merits.
Defendant primarily focuses on an interview of a witness (E) who never testified
at trial. The trial court excluded E's testimony because it found the questioning was
"highly suggestive" and "unprofessional." Because the jury was unaware of this
interview and there is no indication the verdicts were based on statements made by E,
there are no grounds for reversing the judgment based on the interview.
3 At various points in his appellate briefs, defendant also suggests error regarding the absence of a medical examination on C. For the same reasons we have rejected the outrageous conduct and due process arguments as to M, we find them unavailing as to C. Defendant does not cite, nor has our independent review disclosed, any evidence supporting that a forensic examination of 16-year-old C would have revealed evidence relevant to defense claims, particularly because the abuse stopped three or four years earlier when C was 12 or 13. 18
With respect to the two other claimed suggestive interviews, we have examined
the relevant testimony and find there was nothing fundamentally unfair about the
interviews. First, with respect to C, defendant complains that the police officers asked
her leading and suggestive questions. However, despite these questions, the record
reflects that C (who was 16 years old at the time) had previously volunteered specific
information about the abuse to social workers. In recanting her accusations, C did not
suggest her earlier statements were the result of an unfair police interview; instead she
said she intentionally made up the false accusations to help Peter get her uncle into
trouble. C's statements to the police officers were also corroborated by Michael, C's
cousin, who had previously been in a close and friendly relationship with defendant.
Shortly after C first disclosed, Michael picked up C from school, and on the way home, C
repeated the same accusations against defendant. Finally, defense counsel conducted a
strong cross-examination of the police officers involved in the interview, and the jury had
full information to decide whether C's responses were the result of an unfair interview or
were made independently.
Second, with respect to Y's interview, defendant complains that the prosecutor
made improper efforts before trial to "get [Y] to say that [D] told her she had been
'molested' by appellant." The record does not support this assertion. Defendant cites
only to defense counsel's argument to the court, and not to any alleged unfair questions.
Further, after reviewing Y's testimony, we are satisfied that Y testified from her own
recollection and that any statements made to her during the pretrial interview did not
improperly influence her testimony. Y was careful to explain that she remembered only
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generalities about the conversations with D. Defense counsel was given substantial
latitude to vigorously cross-examine Y regarding her memory of the conversations, and
the jury, as the trier of fact, had full information to decide whether Y was credible.
III. Court Did Not Err in Admitting David's Testimony Under Section 1108
Defendant next contends the court erred in admitting David's testimony.
A. Factual Background
Before trial, the prosecutor moved to admit the testimony of 16-year-old David
(the brother of Peter and M) under section 1108, which permits the admission of
uncharged sex offenses as propensity evidence. The prosecutor made an offer of proof
that David would testify that defendant touched David's penis when he was between the
ages of eight and 10 years old. The prosecutor said he had been previously unaware of
David's allegations because his parents had refused to permit an interview with him. The
prosecutor said that when the parents finally allowed a conversation, David disclosed the
abuse.
Defendant opposed the motion on numerous grounds, including that the alleged
improper touching was remote; David's statement lacked credibility as there is no
corroborating evidence; David likely had been "pressured by his older brother Peter to
join him in the allegations"; and the testimony would be confusing as defendant was not
being charged with the alleged conduct against David.
The court decided to conduct a section 402 hearing to consider David's credibility
and the potential relevance of the evidence. At the hearing, David testified he
"remember[ed] a few occurrences where [defendant] has touched my private place,"
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meaning "my testicles and my . . . balls." He later clarified that he was referring to his
penis and his testicles. He said his uncle would "grab" his penis and "move it around"
and would "grab [his testicles] and squeeze." He said this occurred on multiple occasions
from the time he was six or seven years old until he was 13 years old when he "started
becoming a teenager." David said he did not tell anyone because he was afraid.
During cross-examination, David said he was told he had been asked to testify
because "Peter . . . said that [defendant] raped him and also me." He testified that during
the Family Party, Peter repeatedly attempted to "convince" him that he had been raped by
his uncle, but that he (David) had denied it. David also said he had been "[c]onflicted"
about what he should do because Peter had told him "what to say," whereas his father had
instructed him to "lie" about his uncle (defendant). But David also testified that Peter
told him he "should always tell the truth and never make stuff up, even if you can't
remember and stuff . . . ." David also made a series of conflicting statements about
whether and when he spoke with his mother about defendant's conduct, and the nature of
that disclosure.
After considering the testimony and arguments, the court ruled David's testimony
was admissible under section 1108. The court reasoned that it found David was
believable, despite that there would be substantial room for cross-examination on bias,
memory, and credibility issues. The court noted that David appeared to be immature,
nervous, and not highly articulate, and it was uncertain whether "this is all a figment of
his imagination or if he was really touched." But the court found it was the jury's role to
make this credibility determination.
21
At trial, David testified that defendant touched his penis and testicles many times
under and over his clothes. He said defendant "would thrust his hand under my pan[t]s,"
and would squeeze his testicles and would "move[ ]" his penis "around." He said the
touchings began when he was six or eight years old, and continued until he was 13 years
old. He said he was "[v]ery certain" that these touchings had occurred. He said that they
happened when he was alone in a bedroom with his uncle and identified the houses where
the abuse had taken place. David said he never told his parents because he did not know
how they would react. He said he did not disclose the touchings to anyone until he spoke
with the prosecutor in September 2014.
Regarding the Family Party, David remembered one "cousins" meeting, and said
that during the meeting Peter kept telling him that he had been "raped" by his uncle and
David had repeatedly denied it.4 David also said he spoke with Peter about coming to
court, and Peter told him to "[a]lways tell the truth." David said his father (defendant's
brother) told him to lie and not disclose any abuse and that David would "be dead to him"
if David did not "lie." During cross-examination, David agreed he had previously said
Peter told him to say that he was molested.
B. Legal Principles
Section 1101 prohibits the admission of evidence to show a defendant's propensity
to commit a particular crime. Section 1108, subdivision (a) creates an exception to this
rule by permitting the admission of a prior sexual offense for any relevant purpose,
4 On redirect, David clarified that Peter had probably used the word molested rather than raped. 22
including to show the defendant's propensity to commit the current sexual offense.
(People v. Loy (2011) 52 Cal.4th 46, 60; People v. Falsetta (1999) 21 Cal.4th 903, 911.)
"With the enactment of section 1108, the Legislature 'declared that the willingness to
commit a sexual offense is not common to most individuals; thus, evidence of any prior
sexual offenses is particularly probative and necessary for determining the credibility of
the witness.' " (People v. Soto (1998) 64 Cal.App.4th 966, 983.)
Defendant does not challenge that David's testimony was potentially admissible
under section 1108 as propensity evidence, but contends the court erred in denying his
motion to exclude the evidence under section 352.
In considering the admission of section 1108 sexual offense evidence, the court
should conduct a section 352 balancing analysis and exclude the evidence if "its
probative value is substantially outweighed by the probability that its admission will
necessitate undue time consumption or create substantial danger of undue prejudice,
confusing the issues, or misleading the jury." (People v. Loy, supra, 52 Cal.4th at pp. 61-
64; accord, People v. Falsetta, supra, 21 Cal.4th at p. 917.) This determination " 'is
entrusted to the sound discretion of the trial judge who is in the best position to evaluate
the evidence.' " (Falsetta, supra, 21 Cal.4th at pp. 917-918.) We must uphold the trial
court's ruling unless it " 'falls outside the bounds of reason.' [Citation.]" (People v. Kipp
(1998) 18 Cal.4th 349, 371; see People v. Avila (2014) 59 Cal.4th 496, 515; People v.
Loy, supra, 52 Cal.4th at p. 61; People v. Miramontes (2010) 189 Cal.App.4th 1085,
1098.)
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The court did not abuse its discretion. David's testimony about the abuse reflected
actions similar to the charged conduct—engaging in secretive sexual abuse against his
prepubescent nieces and nephews within the family homes. Defendant's actions against
David (if believed by the jurors) were thus highly probative to show defendant had the
propensity to commit this type of crime and made it more likely he engaged in
comparable acts against David's siblings and cousins. Additionally, David's testimony
was brief and there was little likelihood the jury would become confused or distracted by
the evidence. Further, the abuse against David was not more inflammatory than the
charged crimes. If anything, it was relatively less substantial. Unlike the abuse
committed against M and C, the offenses involved fondling and not attempted
penetration.
In arguing the court abused its discretion, defendant focuses primarily on issues
surrounding David's credibility, particularly given David's late reporting and his
admissions that his brother Peter had told him what to say. However, as the trial court
found, the weaknesses in David's testimony pertained to the weight of the evidence, not
its admission. The court had the opportunity to observe and consider David's testimony,
and found that he was fundamentally a believable witness on the basic fact that he had
been subjected to unwanted sexual touchings by defendant. After hearing the testimony
and viewing David's demeanor and body language, the court said that "I do not feel he's
lying." The court recognized the weaknesses in David's testimony and that a jury may
not agree with its credibility assessment, but found the jury should have the opportunity
to consider the evidence and make its own determination.
24
The court did not abuse its discretion in reaching these conclusions. The
reliability and credibility of a witness are matters for the jury to decide, and therefore
inconsistencies in the testimony or biases or memory problems generally are not grounds
for precluding the admission of the evidence under section 352. (See People v. Merriman
(2014) 60 Cal.4th 1, 57; People v. Anderson (2001) 25 Cal.4th 543, 587; People v.
Mullens (2004) 119 Cal.App.4th 648, 660.) Although David suggested at times that he
was told what to say by Peter, he also said Peter told him to tell the truth and that he was
conflicted because his father was telling him to lie and say there was no improper
conduct. The court did not abuse its discretion in finding the jury should make the
credibility determination.
We also reject defendant's contention the evidence should have been excluded
because it was remote. According to David's testimony, the sexual touchings continued
until he was about 13 years old. Since David was 16 years old when he testified, the
abuse evidence was not remote. Further, many of the alleged abusive acts against David
occurred during the same period as the charged offenses.
We likewise reject defendant's contention the evidence was unduly cumulative.
There was no other evidence showing David had also been a victim of defendant's sexual
abuse, and the fact that defendant had also abused Peter's younger male sibling had
material probative value. In this regard, it is significant that the trial court refused to
permit the prosecutor to present the testimony of two other claimed victims under section
1108. This ruling shows the court carefully weighed the proposed testimony and
understood the scope of its discretion to disallow section 1108 evidence. Based on the
25
court's detailed explanation for its ruling, we are satisfied the court carefully balanced the
relevant factors, and acted within its discretion in determining the defendant did not meet
his burden to show the probative value of David's testimony was substantially
outweighed by the prejudicial effect.
Further, even assuming the court abused its discretion in admitting the prior sexual
offense evidence, the error is not reversible unless the defendant shows a reasonable
probability he would have obtained a more favorable result had the court excluded the
prior acts evidence. (See People v. Gonzales (2011) 51 Cal.4th 894, 924; People v.
Falsetta, supra, 21 Cal.4th at pp. 924-925; People v. Walker (2006) 139 Cal.App.4th 782,
808; People v. Mullens, supra, 119 Cal.App.4th at pp. 658-659.) Defendant has not made
this showing in this case.
Defense counsel effectively cross-examined David regarding his memory, his late
disclosure, and the pressure various family members placed on him regarding his
testimony. Under the circumstances, it is highly doubtful the jury would have been
persuaded that defendant was guilty of the charged offenses based solely on David's
testimony. If anything, David's testimony had the potential to help defendant's case.
Portions of David's testimony supported the defense theory that Peter had convinced his
cousins and siblings to falsely accuse defendant in order to retaliate against defendant.
David's statements that during the Family Party, Peter repeatedly told him he had been
"raped" by defendant and that David had denied this assertion was consistent with the
defense case. On our review of the entire record, we are confident that even if the court
had not permitted David to testify, the outcome would have been the same. On this issue,
26
we find unhelpful defendant's focus on the fact that David did not testify in the first trial.
Without a full comparison between the trials, it is speculative to conclude that this one
witness made the difference in the outcome.
IV. No Cumulative Error
Defendant contends we must reverse his conviction because the accumulation of
errors deprived him of a fair trial. Because we have rejected his contentions of error, we
necessarily reject the cumulative error claim. (People v. Vieira (2005) 35 Cal.4th 264,
294; People v. Bolin (1998) 18 Cal.4th 297, 335.) The record demonstrates that
defendant received a fair trial and the verdicts were supported by substantial evidence.
V. Judicial Notice
Defendant requests that we take judicial notice of an expert declaration that was
submitted in support of a habeas corpus petition in an unrelated child abuse case. We
deny this request. The declaration was not presented in the proceedings below, and
defendant provides no persuasive reason for this court to consider the declaration for the
first time here. (See People v. Catlin (2001) 26 Cal.4th 81, 170-171; Vons Companies,
Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) Additionally, there are no
appropriate statutory grounds for judicial notice, and the information contained in the
document is not relevant on the issues before us. The declaration was authored by an
expert who was not subject to cross-examination and who was offering opinions
concerning different victims and a different defendant. Further, even if we were to
consider the declaration, it would not change the outcome of this appeal.
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DISPOSITION
Judgment affirmed.
HALLER, Acting P. J. WE CONCUR:
O'ROURKE, J.
PRAGER, J.*
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 28