Opinion
A154593
07-31-2020
THE PEOPLE, Plaintiff and Respondent, v. HON GIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. 228203)
Defendant Hon Gin was sentenced to three years in state prison after a jury found him guilty of randomly assaulting an elderly man. He asserts four arguments on appeal: (1) the trial court erred in denying his Batson-Wheeler motion; (2) the trial court erred in admitting evidence of his two prior assaults on elderly men; (3) he received ineffective assistance of counsel as a result of his counsel's failure to call a fellow deputy public defender as a witness at trial; and (4) the matter must be remanded for a mental health diversion eligibility hearing in light of newly enacted Penal Code section 1001.36. Defendant's first three arguments lack merit. His fourth, however, is well taken. We thus conditionally reverse the judgment and remand for a mental health diversion eligibility hearing.
BACKGROUND
Evidence at Trial
On the afternoon of September 26, 2017, 69-year-old Yon Lin Huang was walking in the Chinatown neighborhood of San Francisco. As he passed by a laundromat near his home, he saw defendant sitting on a step outside. He was familiar with defendant from past encounters, having seen him about once a week because he slept on the street in the area where Mr. Huang lived. He estimated he had seen defendant fewer than 10 times.
Without saying a word, defendant stood up and struck Mr. Huang at least four times, punching him in both eyes and the middle of his face. Defendant then fled.
Mr. Huang suffered injuries that required stitches, and both of his eyes were bruised and swollen. The injuries to his eyes affected his vision, which was blurry for two hours following the attack and took 15 days to return to normal.
Mr. Huang spoke to the police on the day of the attack and told them he had seen the assailant before and would recognize him. He described his attacker as 45 to 50 years old, although defendant was in his 60s.
A surveillance video recorded the assailant leaving the scene after the assault. A day or two later, San Francisco Police Officer Sam Yuen, who had been assigned to a foot patrol in Chinatown for eight years, saw a still photo of the assailant taken from the surveillance video. He recognized defendant, whom he had seen approximately 600 times over the eight years and with whom he had had about two dozen interactions, including at least two encounters that lasted 15 minutes. Shown the surveillance video at trial, Officer Yuen identified the man as defendant with "a hundred percent" certainty, detailing defendant's features that led the officer to recognize him.
On October 11, when Mr. Huang's vision was still blurry from the injuries he suffered in the attack, he went to the police station to view a photo lineup. He was shown a series of photographs one at a time. When he viewed the first photograph, he said it was possible the man was the assailant. The police showed him more photographs, and when he was shown the fifth one—the photograph of defendant—he said he was positive that was the assailant. At trial, Mr. Huang identified defendant as the assailant.
Mr. Huang testified that he was "90 percent" confident in his in-court identification, but he subsequently explained that he meant his view of defendant in the courtroom was partially obscured.
At trial, the prosecutor read preliminary hearing testimony in connection with two prior incidents in which defendant assaulted elderly men. One incident occurred on April 18, 2014, when defendant approached an 80-year-old man, used foul language, and struck the man. The other occurred on August 27, 2015, when defendant was kicking doors and hitting windows of shops and cars and then struck an elderly man in the face and walked away.
Defendant, whose defense was one of mistaken identity, introduced evidence that the photo lineup did not comply with the San Francisco Police Department procedures.
Procedural Background
A February 7, 2017 amended information charged defendant with assault with force likely to cause great bodily injury (count 1; Pen. Code, § 245, subd. (a)(4)) and inflicting injury on an elder adult (count 2; id., § 368, subd. (b)(1)). It also alleged that defendant served two prior prison terms (id., § 667.5, subd. (b)) and suffered a prior strike (id., §§ 667, subds. (b)-(j), 1170.12).
Defendant was tried before a jury in March 2018. The jury found him guilty on count 1, was unable to reach a verdict on count 2, and found the prior conviction allegations true. In a bench trial on the prior strike allegation, the court found the state had failed to prove the allegation.
On May 21, 2018, defendant was sentenced to three years in state prison, with 472 days credit.
According to the reporter's transcript, the trial court struck the one-year enhancements for the Penal Code section 667.5, subdivision (b) prior prison terms. The minutes and abstract of judgment erroneously indicate the enhancements were stayed. We shall order the abstract of judgment corrected to accurately reflect the trial court's oral pronouncement of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
This timely appeal followed.
DISCUSSION
The Trial Court Did Not Err in Denying Defendant's Batson-Wheeler Motion
Background
Jury selection for defendant's trial began with the prosecutor and defense counsel giving "mini-opening statement[s]." In hers, defense counsel informed the venire that the jury would hear evidence of "two prior incidents where [defendant] was involved in assaultive behavior with other elderly men in the area." During voir dire, but prior to the seating of prospective juror C.S., defense counsel then asked a number of prospective jurors about their views of prior crimes evidence, asking, for example, whether "a person who has previously been convicted of an assault, can they be falsely accused?" And if "the fact that Mr. Gin has been convicted of two prior offenses in the past, do you think for you, personally . . . that means that the People have to bring in less proof of identity in this case?" The prosecutor pursued the same subject during his voir dire, asking if anyone thought it was unfair that the law allowed the jury to take into consideration evidence of defendant's prior offenses against elderly victims. While quite a few of the prospective jurors expressed surprise that such evidence would be admissible, none, when pressed by the prosecutor, said he or she would not consider it.
After the first round of peremptory challenges and the seating of new prospective jurors, including C.S., the prosecutor continued voir dire, asking newly-seated prospective jurors, including C.S., about their experiences with law enforcement and their opinions about police investigations. He then engaged in this exchange with C.S.:
"MR. MENCHIN [the prosecutor]: Okay. How about on the propensity idea, these prior acts? Do you feel comfortable with the notion that they may or may not be admitted into evidence?
"[C.S.]: It's a tough one because I never like to assume, even if it is, I'm not going to assume because he has those two penalties, that he committed this or not, so, yeah.
"MR. MENCHIN: Okay. Are you open to considering the use of prior acts if you decide that they're similar to the current act, or do you just think, 'I don't like that. I'm not going to do it.'
"[C.S.]: Yeah, I don't know. Yeah, I don't know.
"MR. MENCHIN: So what's the—where do you think the idea that you don't like that type of evidence and you're not going to make any judgments based on that evidence, what's the thought process behind that? Is it, 'I don't think that's reliable?' Is it, 'That's not fair?'
"[C.S.]: It's not fair because if it comes to a stalemate, I'm just going to go based on his two strikes that he had previously—I don't know. It just doesn't seem too fair to assume just because he had the two strikes prior, that if we can come to the decision, we would go to guilty because of the two strikes beforehand.
"MR. MENCHIN: Just to be clear, there is no evidence at this point at all, but—no evidence of however many convictions the defendant has. There is no evidence of them. There is no evidence of whether they're a strike or not a strike or any of that. Does everyone understand that? Okay.
"So just to sort of cut to the chase, would you be willing to consider that instruction that says you can use this as part of your decision in deciding the current case, or would you just set it aside and say, 'I just don't think that's fair. I'm not going to go there?'
"[C.S.]: I don't think I could use it.
"MR. MENCHIN: Okay.
"[C.S.]: Doesn't seem fair in my opinion, so . . . .
"MR. MENCHIN: So you don't think you could follow that instruction?
"[C.S.]: No.
"MR. MENCHIN: Okay. Is there anything that anyone could say that will get you to change your mind about that?"
At that point, defense counsel interrupted to request a sidebar. Instead, the court addressed the venire, explaining the responsibilities of jurors, which include following the law as instructed by the court. The prosecutor then turned back to C.S. and asked, "So now that you know the only issue is, can you follow the law, you're going to get an instruction on that point. If you think it's unfair, will you still follow the law, or you just think you can't?" C.S. responded, "I'll hate myself at the end of the day, but if I have to follow it, I'll follow it." The prosecutor thanked C.S. for his honesty and resumed his voir dire of other prospective jurors.
Once the prosecutor and defense counsel had concluded their questioning, the prosecutor used a peremptory challenge to excuse C.S. Defense counsel again requested a sidebar, where the following colloquy occurred:
"MS. CAMACHO [defense counsel]: I'm making a motion pursuant to Batson-Wheeler. The district attorney exercises his challenge against [C.S.], a person who appeared to be of Latino or Hispanic heritage. He indicated he was 22 years old. He could be fair. He would listen to all the evidence. He had never had a negative interaction with the police.
"It appeared during the course of voir dire of the seven people . . . the prosecution honed in on Mr. S. trying to see if he would admit any bias. When that didn't work, they exercised the challenge based on the fact that he's a member of a protected race, and that is a member of the Latino community. And with that, I'd submit.
"THE COURT: All right, thank you.
"Mr. Menchin, could you respond only to the issue of whether or not a prima facie case has been established?
"MR. MENCHIN: So my recollection on the specifics is a little outdated on the procedures.
"THE COURT: All right. By that I mean whether or not . . . an individual, Mr. S[.], is a member of a cognizable group recognized for purposes of [a] Wheeler-Batson motion.
"MR. MENCHIN: Yeah, of course.
"THE COURT: Okay. So you agree that [a] prima facie case has been met in that regard?
"MR. MECHIN: In that regard.
"THE COURT: All right. So at this point then, that being the case, now we can move forward, and you can respond in terms of why you feel that this motion should be denied.
"MR. MENCHIN: Well, the motion should be denied and it's—the idea that a prosecutor would strike a prospective juror solely on the basis—or at all on the basis of their race, membership of any group or class is highly offensive. Particularly in light of the things that Mr. [S.] said here that gave me the impression he would not be a good juror for the People. Specifically, he indicated, and almost got himself to cause on this point—he ultimately said he could follow the instruction, but he thinks the notion of propensity evidence is unfair. And before the Court stepped in, he had indicated that he just wouldn't look at those past incidents, even if he thinks they're relevant or probative because that's unfair. As the Court knows, that is part of the People's case here, and so someone who is going to categorically dismiss some of the evidence we're presenting, is obviously someone we're going to strike using a peremptory challenge."
The court then denied defense counsel's motion, providing this reasoning:
"The Court is going to find at this time, based on the totality of the circumstances and the oral arguments of counsel, that the moving party has failed to establish the inference that prospective juror Mr. S. was challenged because of a group bias or bias with respect to racial bias, that he was the only Hispanic prospective juror that was seated at the time. The motion is denied because the Court finds that Mr. S. is not of the same cognizable group. They're different ethnicities, the defendant in this case is Asian-American, and Mr. S. is Hispanic-American. [¶] . . . The alleged victim and civilian witnesses are of the same ethnicities as Mr. Gin, Asian, and the majority of the law enforcement officers are Asian-American as well. This case does not necessarily have the same racial overtones, as the defendant and the victim are different races. There is no tie-in or pattern with respect to the challenge.
"Usually, you would see a Batson-Wheeler case when there is more than one member of a particular ethnicity or cognizable group that is challenged, but here we only have one. The questions that were asked by the People in this matter of Mr. S. were designed, in the Court's view, to determine whether or not there was a specific bias based on the evidence that that particular prospective juror made here if selected as a juror, and also based on whether or not the juror could follow the Court's instructions, and it is not—and those questions were not asked from the standpoint of inferring that because he happened to be a member of the—of a cognizable group that somehow he'd have any ability or bias against law enforcement or against the defendant in this particular case.
"So for those reasons, at this time, the Court is denying the motion."
Defense counsel stated for the record that she is a member of the same protected group as C.S., and she believed the prosecutor excused C.S. because he is a member of that group.
The court responded, "Thank you. The record will reflect your oral argument on that point, and there is nothing to indicate on the record that [the] peremptory challenge was exercised for that reason. But the record will reflect that you are Hispanic counsel in this case."
Analysis
Defendant contends the court erred in finding that the prosecutor did not engage in discriminatory exercise of a peremptory challenge in violation of Batson v. Kentucky (1986) 476 U.S. 79, 106 S. Ct. 1712 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) as to prospective juror C.S. We review his contention under well settled principles, set forth, for example, in People v. Manibusan (2013) 58 Cal.4th 40, 75-76:
"A three-step procedure applies at trial when a defendant alleges discriminatory use of peremptory challenges. First, the defendant must make a prima facie showing that the prosecution exercised a challenge based on impermissible criteria. Second, if the trial court finds a prima facie case, then the prosecution must offer nondiscriminatory reasons for the challenge. Third, the trial court must determine whether the prosecution's offered justification is credible and whether, in light of all relevant circumstances, the defendant has shown purposeful race discrimination. (People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix).) 'The ultimate burden of persuasion regarding [discriminatory] motivation rests with, and never shifts from, the [defendant].' (Id. at pp. 612-613.)
"On appeal, we review the trial court's determination deferentially, 'examining only whether substantial evidence supports its conclusions. [Citation.]' (Lenix, supra, 44 Cal.4th at p. 613.) 'We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]' (People v. Burgener (2003) 29 Cal.4th 833, 864.)" (Accord, People v. Williams (2013) 56 Cal.4th 630, 653.)
Despite the foregoing, defendant urges us to independently review the trial court's ruling. He submits, "This is a step-one case," and contends de novo review is applicable where "the trial court holds defense counsel to an improper standard in denying the motion at step one . . . ." (See, e.g., People v. Bell (2007) 40 Cal.4th 582, 597 [where trial court found no prima facie case had been established but applied the wrong standard, appellate court reviews the record independently to " 'resolve the legal question whether the record supports an inference that the prosecutor excused a juror' on a prohibited discriminatory basis"].) As defendant reads the record, the court denied the motion at step one based on an incorrect application of the law, as evidenced by its statement that "Mr. S[.] is not of the same cognizable group [as defendant]. They're different ethnicities, the defendant in this case is Asian-American, and Mr. S[.] is Hispanic-American." This, defendant submits, was fundamentally wrong because "Latinos have long been recognized as a cognizable group for purposes of Batson-Wheeler," and "[t]here is no homogeneity requirement."
As defendant notes, the trial court's treatment of step one is not entirely clear. The court asked the prosecutor if he believed C.S. was a member of a protected group, to which the prosecutor responded, "Yeah, of course." The court confirmed that the prosecutor "agree[d] that [a] prima facie case has been met in that regard?" The prosecutor responded, "In that regard." The court then said: "All right. So at this point then, that being the case, now we can move forward, and you can respond in terms of why you feel that this motion should be denied." This can be understood as the court's finding that defendant had satisfied his initial burden of making a prima facie showing of an improper race-based challenge, thus advancing defense counsel's motion to step two.
That said, the trial court subsequently stated that defendant "has failed to establish the inference that prospective juror Mr. S[.] was challenged because of a group bias or bias" because he and defendant were of different ethnicities. This, defendant contends, was an erroneous finding by the trial court that defense counsel had not satisfied step one because defendant and C.S. were of different ethnicities. Even if defendant is correct, this would not be reversible error for two reasons.
Assuming arguendo that the trial court denied defendant's motion at step one based on an improper application of the law—and thus de novo review applies—we would agree with the trial court that defendant failed to make a prima facie showing of a racially motivated challenge. Defendant's claim is based on this description of the prosecutor's voir dire of C.S.: "[T]he prosecutor honed in on C.S. After asking general questions of the venire, he asked C.S. directly if he was okay with returning a guilty verdict even in cases where there was a poor investigation. [Citation.] He then immediately pivoted to prior crimes evidence, again singling out C.S. alone for his views on this evidence and without admonishing him that he would be obligated to follow the law as instructed on this and every other topic. [Citations.] The prosecutor's targeted questioning, coupled with the trial court's recognition that C.S. 'was the only Hispanic prospective juror that was seated at the time' [citation], was sufficient to satisfy Batson's 'small' burden at step one." This is an inaccurate recitation of what actually transpired.
As detailed above, it was defendant's own counsel who first raised the issue of defendant's prior offenses, first advising the venire during her mini-opening statement that the jury would hear evidence that defendant "has two prior incidents where he was involved in assaultive behavior with other elderly men in the area," and then asking a number of prospective jurors—prior to C.S.'s seating—about their views of prior crimes evidence. The prosecutor did the same, questioning a number of the prospective jurors at length when they expressed surprise that such evidence would be admissible. None said he or she believed such evidence was unfair and would not consider it. After C.S. was seated, the prosecutor continued voir dire, including asking C.S. his opinion about "the propensity idea, these prior acts?" When C.S. stated that he considered such evidence unfair and would not consider it, the prosecutor asked a number of follow up questions—precisely as he did of the other prospective jurors who expressed surprised about the admissibility of prior crimes evidence. Defendant's assertion that the prosecutor "singl[ed] out" C.S. with "targeted questioning" is simply inaccurate. He treated C.S. no differently than any other prospective juror.
This leaves nothing more than C.S.'s membership in a protected group. While the step one burden may in fact be "small" (United States v. Collins (9th Cir. 2009) 551 F.3d 914, 920), and defendant need only proffer evidence that raises "an inference of discrimination" (Johnson v. California (2005) 545 U.S. 162, 170), the record here does not support " 'an inference that the prosecutor excused [Mr. S.] on a prohibited discriminatory basis.' " (People v. Rhoades (2019) 8 Cal.5th 393, 429.) Our Supreme Court has identified certain types of evidence that is " 'especially relevant' " to this inquiry, "including: 'whether a party has struck most or all of the members of the venire from an identified group, whether a party has used a disproportionate number of strikes against members of that group, whether the party has engaged those prospective jurors in only desultory voir dire, whether the defendant is a member of that group, and whether the victim is a member of the group to which a majority of remaining jurors belong.' " (Ibid.) All we have here is the fact that C.S. appeared to be Latino. This does not satisfy defendant's "small" step one burden.
In any event, any potential error at step one was nullified by the court proceeding to steps two and three. This is so because when it is not clear whether a court ultimately found that the defendant made out a prima facie case, but asks the prosecutor to state his or her reasons for the challenged excusals, a reviewing court may proceed as if the court reached the step three stage, and analyze whether the trial court properly accepted the prosecutor's race-neutral reasons. (People v. Mai (2013) 57 Cal.4th 986, 1050; People v. Zambrano (2007) 41 Cal.4th 1082, 1105-1106; People v. Box (2000) 23 Cal.4th 1153, 1189.)
Defendant disagrees that the court proceeded past step one, but his reasons are unpersuasive. As to step two, he contends the trial court never asked the prosecutor to state his reasons for challenging C.S., instead merely asking the prosecutor to " 'explain why this motion should be denied.' " Defendant is arguing semantics. The court's question was clearly aimed at ascertaining the prosecutor's reason for challenging C.S., and that is how the prosecutor understood the question, having responded with his justification.
As to step three, defendant contends the court did not reach this final step because it "made no findings on credibility whatsoever . . . ." But " 'the trial court is not required to explain on the record its ruling on a Batson-Wheeler motion. [Citation.] "When the prosecutor's stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings." ' " (Mai, supra, 57 Cal.4th at p. 1054.) A necessary corollary is that it need not make express credibility findings on the record.
So, despite defendant's protestations, it is clear to us that the court did make a step three finding—that the prosecutor's challenge of C.S. was not exercised for a racially motivated reason, a finding we review for substantial evidence. (Mai, supra, 57 Cal.4th at p. 1050; Lenix, supra, 44 Cal.4th at p. 613; People v. Bonilla (2007) 41 Cal.4th 313, 341-342.) We conclude that finding is amply supported.
The prosecutor explained that he challenged C.S. due to his answers regarding the use of propensity evidence. C.S. initially stated it was "not fair" to find that defendant committed the present assault because he had committed two past assaults, and he would not follow an instruction advising that the jury could consider prior crimes evidence. After the court advised the prospective jurors that a juror's duty is to follow the law as instructed by the court, C.S. reluctantly agreed that he would follow the law regarding propensity evidence, with the caveat that he would "hate [him]self at the end of the day" for doing so. C.S. was an outlier in this regard, as no other prospective juror gave similar answers about prior crimes evidence. Given these circumstances and the prosecutor's intent to introduce evidence of defendant's two prior assaults on elderly victims, the prosecutor's explanation was reasonable and credible, and it supports the trial court's finding that the prosecution's peremptory challenge of C.S. was not racially motivated.
The Trial Court Did Not Err in Admitting Evidence of Defendant's Prior Assaults on Elderly Victims
As noted, the prosecutor introduced evidence, pursuant to Evidence Code section 1109, that defendant had previously assaulted two elderly men. Defendant's second argument asserts that admission of this evidence violated state and federal law because section 1109 does not "allow the admission of prior crimes against elder strangers to prove charged crimes against elder strangers." Rather, he contends, section 1109 is a domestic violence statute and permits only the introduction of past acts of elder abuse by a family member or caregiver in a case charging that family member or caregiver with elder abuse. We reject his narrow interpretation of the statute.
All undesignated statutory references are to the Evidence Code.
We summarized the rules governing statutory construction in Brown v. Valverde (2010) 183 Cal.App.4th 1531 as follows:
"We set out the rules governing statutory construction in MacIsaac v. Waste Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076 (MacIsaac): ' "[O]ur primary task is to determine the lawmakers' intent," ' which we are to do using a three-step process. (Id. at p. 1082.) We first 'look to the words of the statute themselves. [Citations.] The Legislature's chosen language is the most reliable indicator of its intent because " 'it is the language of the statute itself that has successfully braved the legislative gauntlet.' " [Citation.] We give the words of the statute "a plain and commonsense meaning" unless the statute specifically defines the words to give them a special meaning. [Citations.] If the statutory language is clear and unambiguous, our task is at an end . . . .' (Id. at pp. 1082-1083.) But, as our Supreme Court has explained, we do not 'consider the statutory language in isolation, but rather examine the entire substance of the statute in order to determine the scope and purpose of the provision, construing its words in context and harmonizing its various parts.' [Citation.]
"MacIsaac then described the second step: 'When the plain meaning of the statute's text does not resolve the interpretive question, we must proceed to the second step of the inquiry.' (MacIsaac, supra, 134 Cal.App.4th at p. 1083.) In this step, we ' "may turn to rules or maxims of construction," ' and '[w]e may also look to a number of extrinsic aids, including the statute's legislative history, to assist us in our interpretation.' (Ibid., fn. omitted.)
"And then the third: 'If ambiguity remains after resort to secondary rules of construction and to the statute's legislative history, then we must cautiously take the third and final step in the interpretive process. [Citation.] In this phase of the process, we apply "reason, practicality, and common sense to the language at hand." [Citation.] Where an uncertainty exists, we must consider the consequences that will flow from a particular interpretation. [Citation.] Thus, "[i]n determining what the Legislature intended we are bound to consider not only the words used, but also other matters, 'such as context, the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy and contemporaneous construction.' [Citation.]" ' (MacIsaac, supra, 134 Cal.App.4th at p. 1084; [citations].)" Brown v. Valverde, supra, 183 Cal.App.4th at pp. 1546-1547.)
Thus, as directed, we first examine the language of the statute, which we find unambiguous. As a general matter, section 1101 prohibits the use of evidence "of a person's character or a trait of his or her character . . . when offered to prove his or her conduct on a specified occasion" (§ 1101, subd. (a)), unless "relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act" (id., subd. (b)). Section 1109, subdivision (a)(2) provides, however, that, subject to certain exceptions not applicable here, "in a criminal action in which the defendant is accused of an offense involving abuse of an elder or dependent person, evidence of the defendant's commission of other abuse of an elder or dependent person is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." We understand this to mean precisely what it says: evidence of past elder abuse is admissible in a subsequent case charging another incident of elder abuse—with no restrictions pertaining to the relationship between the abuser and the victim. Despite the clarity of the provision, defendant claims the language is ambiguous because it "does not say one way or the other whether elder abuse applies to strangers or only those with a special relationship, such as family members or caretakers, alone." The absence of such limiting language does not create ambiguity. It evidences legislative intent that the provision applies without limitation.
Section 352 allows for the exclusion of evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
The definition of elder abuse contained in section 1109 further supports our conclusion. Subdivision (d)(1) defines " 'Abuse of an elder or dependent person' " as "physical or sexual abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment that results in physical harm, pain, or mental suffering, the deprivation of care by a caregiver, or other deprivation by a custodian or provider of goods or services that are necessary to avoid physical harm or mental suffering." Had the Legislature intended to limit evidence of prior acts of elder abuse to cases involving abuse inflicted by someone with a preexisting relationship with the victim, it could have done so in this definition. It did not.
While defendant admits that our "starting point for determining the Legislature's intent is the language of the statute itself," he would have us disregard that language here, urging us instead to rely on the legislative history of section 1109. As he would have it, that is appropriate here because a court may resort to such history where the language of the statute does not provide a definitive answer regarding the Legislature's intent (see People v. Coronado (1995) 12 Cal.4th 145, 151; Granberry v. Islay Investments (1995) 9 Cal.4th 738, 744), where the language is clear but its literal meaning leads to an absurd result (see Silver v. Brown (1966) 63 Cal.2d 841, 845), or where necessary to "give effect to manifest purposes that, in the light of the statute's legislative history, appear from its provisions considered as a whole." (Ibid.) None of those circumstances applies here.
Moreover, the legislative history of section 1109 does not convince us that the Legislature intended to limit application of the statute as defendant urges. Section 1109 was enacted in 1996 and provided only for the admission of prior acts of domestic violence in a case charging defendant with an act of domestic violence. (Former § 1109, subd. (a).) As enacted, it incorporated the definition of "domestic violence" then set forth in Penal Code section 13700: "domestic violence" meant "abuse committed against an adult or a fully emancipated minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child." (Former § 1109, subd. (d); former Pen. Code, § 13700, subd. (a).)
In 2000, Assembly Bill No. 2063 (AB 2063) proposed amending the Penal Code section 13700 definition of domestic violence to "also mean[] abuse committed against an elder adult . . ., against a dependent adult . . ., or against any person with whom the perpetrator of the domestic violence has a caretaker relationship . . . ." (AB 2063, Feb. 22, 2000.) This proposal was apparently rejected due to concerns "by experts in domestic violence prevention because of the potential of confusing the nature of domestic violence." (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 2063 (1999-2000 Reg. Sess.) as amended Apr. 6, 2000.)
The next version of AB 2063 sought to amend not the definition of domestic violence as contained in Penal Code section 11370, but rather to amend section 1109 to allow evidence of prior acts of domestic violence and elder abuse when defendant was charged with either offense. (AB 2063, April 6, 2000.) This, too, was rejected, as the final version of AB 2063 amended section 1109 to read in substance as it does today, with domestic violence and elder abuse addressed in two separate subdivisions, (a)(1) and (a)(2), respectively.
According to defendant, this "legislative history shows[] Evidence Code section 1109 has always been a domestic violence statute" and thus requires a preexisting relationship between the victim and abuser in order for prior acts of elder abuse to be admissible against the abuser. To the contrary, however, that legislative history can be construed as demonstrating a legislative recognition that domestic violence and elder abuse are distinct and should not be lumped together.
This "domestic violence statute" argument is also undermined by subdivision (a)(3) of section 1109, which allows for the admission of evidence of prior acts of child abuse in an action in which the defendant is accused of child abuse. Like subdivision (a)(2), subdivision (a)(3) contains no requirement of a preexisting relationship between the child and the abuser. This demonstrates that section 1109 is not strictly a domestic violence statute, but is instead designed to protect certain vulnerable populations, namely, victims of domestic violence, the elderly, and children.
In further advancing his legislative history argument, defendant also points to the following statement by the author of AB 2063 in support of the final version: " 'AB 2063 will help stop the violence against seniors. Often times seniors are abused by close relatives. Many victims, out of fear of prosecuting an abusive relative, are uncooperative at trial. This makes it very difficult for prosecutors to substantiate abuse claims. Currently, this evidence is admissible in domestic violence and sexual offense cases. In many ways, the relationship and patterns in elder abuse situations are similar to those in domestic violence and sex offense cases. We need to provide the same protections to seniors in order to save lives and stop cycles of abuse.' " (Sen. Floor Analysis of Assem. Bill No. 2063 (1999-2000 Reg. Sess.) as amended June 19, 2000.) According to defendant, this confirms that section 1109 "applies to elder abuse by family members or caregivers, not perfect strangers."
While this passage certainly reflects the author's desire to allow evidence of past abuse when an elderly victim is being abused by a relative or caregiver to stop a cycle of abuse, it does not convey any to intent to deprive other elderly victims of similar protection. The purpose of the section 1109, subdivision (a)(2)—stopping the abuse of seniors—is effectuated whether defendant has a preexisting relationship with the victim or not.
Finally, as defendant recognizes, in People v. Williams (2008) 159 Cal.App.4th 141 (Williams), our Division Three colleagues upheld the admission of section 1109, subdivision (a)(2) evidence in a case involving an attack on an elderly stranger. In that case, during defendant's trial on charges of burglary and assault on an elderly victim who was a tenant in a residential hotel where defendant lived, the prosecution introduced testimony by two elderly men who had previously been assaulted by defendant. (Williams, at pp. 144-145.) On appeal, defendant challenged admission of the prior acts evidence, arguing that admission of propensity evidence violated his right to due process, which argument the court rejected. (Id. at pp. 145, 147.) Defendant dismisses the significance of Williams because that "defendant never made the arguments [he] now raises[ and c]ases are not authority for propositions not considered therein." While the defendant in Williams and defendant here raise different challenges to section 1109, an observation by the Williams court is nevertheless apt: "[T]he admission of such evidence of prior acts of elder abuse is expressly sanctioned by section 1109, subdivision (a)(2)." (Id. at p. 145.) We agree.
Defendant Has Not Established That His Trial Counsel Committed Ineffective Assistance of Counsel
Background
Prior to trial, the prosecution filed a motion to exclude third-party culpability evidence. According to the motion, "On February 6, 2018, then attorney of record for the People Julia Cervantes disclosed a comment stated to her by a San Francisco police officer that he believed Defendant had a twin brother. This [is] insufficient to present third party culpability evidence or arguments."
During argument on the motion, it was developed that there were two men going by the name Hon Gin, one of whom was defendant and both of whom had criminal records in San Francisco. They were not brothers but were, evidently, two men using "the same name, date of birth, and social security number, yet [they] have distinct criminal history and rap sheets." As the prosecutor surmised, "at some point in time, one of them began using the other's identifying information . . . ."
Booking photos of defendant and the "other Hon Gin" were submitted for the court's consideration. The photos of defendant were from 2005 and 2011, the photos of the other Hon Gin from 2004 and 2010. According to the prosecutor, the photos showed "[i]t's clearly two different people." Defense counsel, on the other hand, argued that "those two people with a side profile have a strikingly, strikingly similar look, age, name, date of birth, weight, and height."
Defense counsel also represented that she had been in her office viewing the surveillance video of the assailant walking away from the Huang assault, when deputy public defender Michele Tong walked into her office, saw the video, and said that the person in the video appeared to be the other Hon Gin, which she knew because she had represented both of them. Defense counsel gave no indication that Tong had seen the other Hon Gin after she represented him in 2010, and she informed the court she did not intend to call Tong to testify at defendant's trial.
The trial court ultimately ruled that defense counsel's offer of proof as to third-party culpability was insufficient. It noted that it was able to tell the two men apart in old booking photos, and defense counsel had made no proffer as to what the other Hon Gin looked like in 2017. The court also noted that Mr. Huang had seen defendant multiple times before the attack and was familiar with him.
Analysis
Defendant's third argument contends that he was deprived of his state and federal constitutional right to effective assistance of counsel by his defense counsel's failure to call deputy public defender Tong to testify that the man in the surveillance video was not defendant but was instead the other Hon Gin. He asserts two separate but related bases for his claim that defense counsel's conduct was deficient: (1) counsel had what he labels a "debilitating conflict of interest" because the San Francisco Public Defender was representing defendant "in a case where defense counsel's entire theory was that the real perpetrator was a former client of the San Francisco Public Defender," and (2) straight-forward ineffective assistance for failure to call Tong to testify as to the identity of the man in the surveillance video.
To establish ineffective assistance of counsel, defendant must show: (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687-691; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) "[A] defendant is deprived of his or her constitutional right to the assistance of counsel in certain circumstances when, despite the physical presence of a defense attorney at trial, that attorney labored under a conflict of interest that compromised his or her loyalty to the defendant." (People v. Rundle (2008) 43 Cal.4th 76, 168; accord, People v. Doolin (2009) 45 Cal.4th 390, 417.) "In the context of a conflict of interest claim, deficient performance is demonstrated by a showing that defense counsel labored under an actual conflict of interest 'that affected counsel's performance—as opposed to a mere theoretical division of loyalties.' " (Ibid.)
While that framework is well established, so, too, is the caveat that "[i]neffective assistance of counsel claims are rarely cognizable on appeal." (People v. Silvey (1997) 58 Cal.App.4th 1320, 1329.) As our Supreme Court has explained, "[I]t is black letter law that 'if the record sheds no light on why counsel acted or failed to act in the challenged manner, we must reject [an ineffective assistance of counsel] claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation for counsel's performance.' " (People v. Ochoa (1998) 19 Cal.4th 353, 434; accord, Silvey, supra, at p. 1329 [" 'because, in general, it is inappropriate for an appellate court to speculate as to the existence or nonexistence of a tactical basis for a defense attorney's course of conduct when the record on appeal does not illuminate the basis for the attorney's challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a habeas corpus proceeding, in which the attorney has the opportunity to explain the reasons for his or her conduct' "].)
Here, there is no indication in the record why defense counsel did not call Tong to testify at trial, nor is there any indication that she was asked for and failed to provide a reason for not doing so. We cannot dismiss the possibility that defense counsel had a strategic reason for not calling Tong as a witness. In light of this, we must reject defendant's ineffective assistance of counsel claim.
The Matter Must Be Remanded for a Mental Health Diversion Eligibility Hearing
In his final argument, defendant contends the matter must be conditionally reversed and remanded so the trial court can hold a mental health diversion eligibility hearing pursuant to Penal Code section 1001.36, which was enacted after defendant was sentenced on May 21, 2018. We agree.
On June 27, 2018, Governor Jerry Brown signed into law Assembly Bill No. 1810 (AB 1810). (Stats. 2018, ch. 34, § 24.) AB 1810 added section 1001.36 to the Penal Code, providing for pretrial diversion for a defendant with mental illness, subject to certain criteria. Those criteria are: (1) defendant suffers from a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders; (2) the disorder was a significant factor in the commission of the charged offense; (3) a medical expert has opined the symptoms motivating the criminal behavior would respond to mental health treatment; (4) the defendant consents to diversion and waives his or her right to a speedy trial; (5) the defendant agrees to comply with the prescribed treatment; and (6) defendant will not pose an unreasonable risk of danger to public safety if treated in the community. (Pen. Code, § 1001.36, subd. (b)(1)(A)-(F).)
The People oppose defendant's request for remand for a pretrial diversion hearing on the ground that Penal Code section 1001.36 does not apply retroactively. The California Supreme Court recently held, however, that the statute does in fact apply retroactively to cases in which the judgment was not final when the law took effect. (People v. Frahs (2020) 9 Cal.5th 618.)
To obtain relief on appeal, a defendant need only make a prima facie showing of the first eligibility requirement, i.e., the record must indicate he or she suffers from a qualifying mental disorder. (People v. Frahs, supra, 9 Cal.5th at p. 640.) If the record affirmatively discloses such information, it is appropriate to conditionally reverse the judgment and order a "limited remand for the trial court to conduct a mental health diversion eligibility hearing." (Ibid.) Defendant here points to psychological reports submitted at sentencing that reflected a diagnosis of cocaine use disorder as identified in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, and the difficulty of determining whether he suffered from a major mental disorder due to his limited education and language skills. The People offer no substantive argument about defendant's eligibility for diversion. We thus conclude that conditional limited remand is appropriate here because the record contains evidence that appears to support the statute's first eligibility requirement. (See ibid.)
DISPOSITION
The judgment is conditionally reversed. The matter is remanded to the trial court with directions to hold a diversion eligibility hearing in accordance with Penal Code section 1001.36.
If the trial court finds that defendant suffers from a mental disorder, does not pose an unreasonable risk of danger to public safety, and otherwise meets the six statutory criteria of Penal Code section 1001.36, subdivision (b)(1) (as nearly as possible given the postconviction procedural posture of this case), the court may grant diversion. If defendant successfully completes diversion, the trial court shall dismiss the charges.
If the trial court determines defendant does not meet the criteria under Penal Code section 1001.36, or if it grants diversion but defendant does not satisfactorily complete it (id., subd. (d)), the court shall reinstate his conviction and sentence.
On remand, the trial court is also directed to correct the abstract of judgment to reflect that the trial court struck, rather than stayed, the Penal Code section 667.5, subdivision (b) enhancements.
In all other regards, the judgment is affirmed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Miller, J.