Opinion
B198265
4-14-2008
THE PEOPLE, Plaintiff and Respondent, v. LEI HONG, Defendant and Appellant.
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie A. Miyoshi and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Xiufang Sun came to the United States from China in May 2005 as a healthy woman. She died in January 2006 of liver and kidney failure caused by infections from open decubitus ulcers and a ruptured gastric ulcer exacerbated by anemia, dehydration and malnutrition.
A jury convicted Suns niece, Lei Hong, of involuntary manslaughter, dependent adult abuse resulting in death, dependent adult abuse with a finding of great bodily injury and assault by means likely to produce great bodily injury. We affirm.
FACTS AND PROCEEDINGS BELOW
We summarize the facts in the light most favorable to the judgment. (People v. Gadlin (2000) 78 Cal.App.4th 587, 590.)
Hong brought Sun to a hospital emergency room on the evening of December 10, 2005. The first person to attend to her, a student nurse, described Sun as looking almost "dead." The security guard in the emergency room described her as "moaning in pain." The emergency room physician who examined Sun found her "extremely" emaciated, "severely" dehydrated, and "profoundly" anemic with significantly low blood pressure. In addition, Sun had Stage III and Stage IV decubitus ulcers, multiple facial and neck scars, two broken wrists, two broken arms, fractured ribs and vertebrae, bruises on her inner thighs and abrasions on her fingers.
A physician testified at trial that there are four stages of decubitus ulcers, (commonly referred to as bed sores). In Stage III, she testified, the break-down in the skin has gone beyond the superficial layer of skin. In Stage IV, the opening in the skin goes to muscle and bone. These openings often lead to serious, even life-threatening, infections.
Dr. Diana Schneider, director of the hospitals adult protection team, testified that the ultimate cause of Suns death was neglect as evidenced by her emaciation, dehydration, malnutrition and sever decubitus ulcers. (We discuss Dr. Schneiders findings in more detail in Part IV, below.)
Dr. Jeffrey Gutstadt of the Los Angeles County Coroners Office performed the autopsy on Sun. He testified that the immediate cause of Suns death was multiple organ failure brought on by toxins in her blood stream caused by a perforated gastric ulcer. (We discuss Dr. Gutstadts findings in more detail in Part IV, below.)
The evidence showed that Sun was Hongs aunt. Sun came to the United States from Shanghai in May 2005 and lived with Hong until she was admitted to the hospital in December 2005. Suns husband, Gong Min, testified that Sun came to the United States because Hong promised to pay her $800 a month to help Hong take care of Hongs two-year-old daughter. When Sun left Shanghai, she had no health problems and was "kind of on the fat side."
Min, who had remained in China, testified that he had several telephone conversations with Sun while she was living with Hong. Hong often listened in on these conversations, responding to statements by Sun. He recalled one conversation in which Sun told him that Hong had not paid her anything for her taking care of Hongs daughter. Hong interjected "scold[ing]" Sun and saying "something like if you dont take care of the baby ... there will be some kind of vengeance against you, some kind of bad things [are] going to happen to you if you dont take care of the little girl." Hong did not specify what those "bad things" would be.
On November 20, 2005, Hong telephoned Min in China and told him that Sun had fallen down a flight of stairs. Min tried to speak to Sun but Sun "couldnt speak very well and also [was] not hearing very well." Sun had never before had a problem speaking or hearing. Hong telephoned Min again a week later. She told him Sun "couldnt open her mouth and she even had problems swallowing food." Min asked Hong to take Sun to a hospital but Hong replied it was too expensive; that the hospital would cost "a few hundred dollars a day." Min told Hong he would pay for the hospital because "regardless of the cost ... life is very precious and our son needs a mother." Hong ignored Mins offer to pay. According to Min, "[Hong] said that she cannot send her to the hospital because she doesnt have any money."
Executing search warrants at Hongs home, Sheriffs deputies discovered $28,604 in cash in a suitcase. The deputies also seized seven videotapes, two of which were played for the jury. These videos, recorded sometime between late November and early December 2005 show Hong striking Sun with her forearms, elbows and fists. On the first tape Hong calls Sun a "stupid bitch" and tells her: "If you want to die early, please say that. You can die early." "You do not need to play such games with me. You want to play games with me? In the morning, fuck you. Look here the video camera is here. Ill beat you to death." The second tape shows Hong beating Sun and berating her over the way she cooked breakfast. Hong tells Sun: "I am so angry ... as to hit you." When Sun asks for forgiveness, Hong replies: "Ill not forgive you. You need to behave yourself. Ill beat you less." Hong admitted she punched Sun in the face as many as seven times in one outburst.
The People charged Hong with first degree murder, involuntary manslaughter, dependent adult abuse resulting in death, dependent adult abuse with a finding of great bodily injury and assault by means likely to produce great bodily injury. A jury found Hong guilty on all counts except murder. The trial court sentenced Hong to the middle term of three years on the conviction of dependent adult abuse resulting in death plus a five-year enhancement based on the jurys finding that the victim was a person under 70 years of age who died as a consequence of abuse. The charge of dependent abuse likely to produce great bodily injury was dismissed on motion of the prosecution as a lesser included offense of dependent abuse resulting in death. Sentence on the remaining counts was imposed and stayed pursuant to Penal Code section 654. Hong filed a timely appeal.
DISCUSSION
I. ADMISSIBILITY OF THE VIDEOTAPES SEIZED FROM HONGS HOME.
The trial court denied Hongs motion to suppress the two videotapes showing Hong striking Sun. The videotapes were seized at Hongs home on two occasions under two separate search warrants. Hong contends both seizures were unlawful because the warrants did not list videotapes among the items to be seized as required by the "particularity" clause of the Fourth Amendment. We reject Hongs contention.
The Fourth Amendment states "no warrants shall issue, but upon probable cause ... and particularly describing the place to be searched, and the persons or things to be seized." The particularity clause is intended to prevent the kinds of home searches that were prevalent in colonial America in which British soldiers, under "writs of assistance," rummaged through colonists homes in search of evidence of criminal behavior. (People v. Jackson (2005) 129 Cal.App.4th 129, 163.) But the particularity clause does not require the officer seeking a warrant to anticipate and list the precise nature of every piece of evidence to be seized. The essential requirement for a lawful seizure is that there be a "nexus" between the item seized and criminal behavior suspected. (Warden v. Hayden (1967) 387 U.S. 294, 307.) This "nexus" is established if "[t]he police officers who seize an article [are] presently aware of some specific and articulable fact from which a rational link between the item seized and criminal behavior can be inferred." (People v. Hill (1974) 12 Cal.3d 731, 763.)
Officers seized the first group of videotapes under a search warrant executed on December 15, 2005, while Sun was still alive. The purpose of the search was to find evidence that Sun resided in Hongs home thereby creating a rational link between Hong and Suns abuse. The warrant authorized the seizure of "[a]ny article of personal property tending to establish the identity of persons who have dominion and control over the premises ..., articles of personal property tending to show ownership of locations ..., and photographs relative to the person(s) found at the location." The fact that the warrant did not specifically authorize the seizure of videotapes does not render their seizure unlawful. The constitutional nexus between the reason for the search and the seizure of the videotapes was present because the officers could reasonably believe the videos might contain evidence showing Sun was a resident in Hongs home.
The second group of videotapes were seized under a search warrant executed on February 3, 2006, following Suns death. The purpose of that search was to find evidence Hong had abused Sun. The warrant authorized the seizure of "photographs and film" and "papers/documents that would show incriminating evidence of a crime." Again, the absence of specific authority to seize videotapes does not render the seizure unlawful. The requisite constitutional nexus between the reason for the search and the seizure of the videos was present because medical evidence showed Sun had died from abuse, a previously seized videotape showed Hong physically abusing Sun and the officers could reasonably believe other second videotapes might contain additional scenes of abuse or neglect.
II. ADMISSIBILITY OF ON MINS PRIOR INCONSISTENT STATEMENT.
Min, Suns husband, testified on direct examination that Sun travelled to the United States at Hongs invitation to assist Hong in caring for her two-year-old daughter. The trial court refused to allow Hong to impeach Min with his prior inconsistent statement to a defense investigator that Sun came to the United States to learn a trade. The court concluded that evidence about what Min said to the investigator about the reason for Suns trip to the United States was too "tangential" to the issues in the case to be admissible. Hong contends the court committed prejudicial error in excluding Mins prior statement because the inconsistency effected Mins credibility as a witness. We believe the court acted within its discretion in excluding evidence of the prior statement.
It is undisputed that evidence of Mins prior statement to the defense investigator was admissible as an exception to the hearsay rule because the statement was inconsistent with Mins trial testimony and Min would have had the opportunity on redirect examination to explain or deny the prior statement. (Evid. Code, §§ 770, 1235.) Nevertheless, "the trial court has discretion to exclude impeachment evidence, including a prior inconsistent statement, if it is collateral, cumulative, confusing or misleading." (People v. Price (1991) 1 Cal.4th 324, 412.)
Here the issue of Suns reason for coming to the United States was collateral to any substantive issue in the trial. Attempting to establish that Min made inconsistent statements would have consumed a considerable amount of trial time. At minimum, it would have required the examination and cross-examination of the defense investigator and the re-direct and re-cross examination of Min.
Hong asserts, "Evidence that Sun had come to the United States for business opportunities would have tended to change the character of the relationship between [Hong] and Sun." Hong does not explain how or why the character of Suns and Hongs relationship would have changed depending on whether Sun came to learn a trade or to act as a nanny for Hongs daughter. In any event, the relationship would have not changed in a way that allowed Hong to perpetrate the kind of abuse and neglect shown by the evidence in this case.
III. ADMISSIBILITY OF EVIDENCE OF A DOCTORS DISCUSSIONS WITH HONG REGARDING SUNS MEDICAL CONDITION.
Hong attempted to introduce the testimony of Dr. Charles Wang that during the six days prior to Suns admission to the hospital he had daily conversations with Hong about Suns "medical issues." The trial court excluded this evidence on the ground that Wangs testimony that he discussed Suns "medical issues" with Hong was inadmissible hearsay. The court erred but the error was harmless.
In order for evidence to be hearsay it must be evidence of an out-of-court statement offered to prove the truth of the matter stated. Wangs proposed testimony did not involve an out-of-court statement. The proffered evidence was Wangs in-court statement offered to prove an out-of-court act. Testimony by Wang that "I discussed Suns medical issues with Hong" would not be hearsay because Wang would not be testifying to a statement he made but describing an act he performed. It is no different from Wang testifying, "I washed my car" or "I danced the rhumba."
"`Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).)
Although the trial court erred in excluding Wangs testimony the error was not prejudicial.
In order to convict Hong of dependent adult abuse resulting in death, the People had to prove that Hong "willfully" caused, permitted or inflicted "unjustifiable physical pain or mental suffering" on Sun. (Pen. Code, § 368, subd. (b)(1).) Hongs purpose in introducing Wangs testimony was to show that she was concerned about Suns health—a state of mind inconsistent with her willfully causing, permitting or inflicting unjustifiable pain or suffering on Sun. It is not reasonably probable, however, that Hong would have obtained a more favorable result on the charge of dependent adult abuse if Wangs evidence had been permitted. The evidence of Hongs willful neglect was strong, as we discuss in Part IV, below. In contrast, Hongs purported concern for Suns health was, at best, too little too late. There was evidence showing that Hong did not begin discussing Suns medical condition with Wang until December 4 and that she did not bring Sun to the hospital until six days later by which time Suns hemoglobin level, decubitus ulcers, dehydration and malnutrition had reached life threatening levels. Furthermore, Hong admitted that the only "medical issue" she discussed with Wang was "what I should feed my aunt." Hong offered no evidence that she and Wang discussed Suns decubitus ulcers, dehydration or emaciation—conditions which the evidence showed were the primary factors threatening Suns life when she was admitted to the hospital.
IV. SUFFICIENCY OF THE EVIDENCE OF DEPENDENT ADULT ABUSE RESULTING IN DEATH AND INVOLUNTARY MANSLAUGHTER.
Hong maintains there was insufficient evidence to convict her of dependent adult abuse resulting in death and involuntary manslaughter. We disagree.
A. Evidence Of Dependent Adult Abuse Resulting In Death.
Hong contends that the evidence of dependent adult abuse is insufficient because it proves at most that Sun died as a consequence of neglect but the courts instructions required the People to prove Sun died as a consequence of "unjustifiable physical or mental suffering." We reject Hongs attempt to draw a distinction between physical and mental suffering and neglect. In our view, "unjustifiable physical or mental suffering" includes the severe neglect shown by the evidence discussed below. As our Supreme Court observed in People v. Heitzman (1994) 9 Cal.4th 189, 197, Penal Code section 368 "may be applied to a wide range of abusive situations, including within its scope active, assaultive conduct, as well as passive forms of abuse, such as extreme neglect."
A person is guilty of dependent adult abuse if the person, "under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any ... dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any ... dependent adult, willfully causes or permits the person or health of the ... dependent adult to be injured, or willfully causes or permits the ... dependent adult to be placed in a situation in which his or her person or health is endangered[.]" (Pen. Code, § 368, subd. (b)(1).) A mandatory prison sentence applies if, in committing the crime of dependent adult abuse, the defendant proximately causes the death of the victim. (Pen. Code, § 368, subd. (b)(3).)
The trial court instructed the jury that to prove Hong guilty of dependent adult abuse resulting in death, the People had to prove that Hong "willfully inflicted unjustifiable physical or mental suffering" on Sun which was a "substantial factor" in causing her death.
The testimony of Drs. Schneider and Gutstadt provided substantial evidence that Sun died as the result of dependent adult abuse.
Dr. Schneider, the director of the hospitals adult protection team, testified that shortly after Sun was admitted to the hospital she was transferred to the intensive care unit because her condition became "more critical." Sun required multiple blood transfusions because she suffered from severe anemia and was losing blood. Further examinations and tests showed Suns bleeding and low blood pressure were caused in part by a stomach ulcer. Surgeons removed a portion of Suns stomach to help control the bleeding. Sun also suffered from "overwhelming infection" resulting from the open sores on her back. Bacteria had entered through the sores and attached themselves to the valve on Suns heart. This made it difficult to control her blood pressure and keep fluid out of her lungs. In Schneiders opinion all of these problems contributed to Suns death on January 10, 2006.
Schneider further testified that she examined Sun the day after her admission to the hospital and concluded that Sun had been the victim of physical abuse and "significant neglect." Schneider based her conclusion primarily on her finding "that there was a delay in really getting adequate care for this patient." She explained that Sun "was critically ill when she came to the emergency room to the point where she needed to go in [an] intensive monitoring setting." Specifically, Sun "was extremely dehydrated, extremely malnourished." In addition Sun had decubitus ulcers on her back which resulted in infection because she "hadnt received care." In Schneiders opinion the infected decubitus ulcers developed because Sun had been left on her back for at least a week and was unable to roll from side to side to get off the wounds. Schneider stated that she could not estimate how long Sun had been without food or water but that "the level of dehydration was very significant and the level of malnutrition was very significant."
Dr. Gutstadt, who performed the autopsy on Sun, testified Suns death was the ultimate result of traumatic injuries caused by beatings, malnourishment and decubitus ulcers. Bacteria entered Suns body through the openings caused by the decubitus ulcers. Her body could not fight these organisms because her emaciation and malnourishment resulted in a break-down of her immune system. Her decreased immunities led to a gastric ulcer which subsequently burst. The burst gastric ulcer caused more bacteria to be released into Suns system where they "floated through the bloodstream to all the organs of her body gradually caus[ing] liver and kidney failure."
B. Evidence Of Involuntary Manslaughter.
The trial court instructed the jury that it could find Hong guilty of involuntary manslaughter if it found she committed an assault on Sun "that posed a high risk of death or great bodily injury because of the way it was committed" and that the assault "unlawfully caused the death of [Sun]."
The evidence showed Sun had numerous physical injuries including broken ribs, a broken bone in each arm and a fractured vertebrae. Dr. Gutstadt testified that the beatings which caused these injuries were the beginning of the sequence of events which ultimately resulted in Suns death from multiple organ failure. (See discussion in Part A, above.) Hongs intervening mistreatment of Suns injuries after she beat her were dependent intervening acts analogous to negligent medical treatment and did not break the chain of proximate causation. (Cf. People v. McGee (1947) 31 Cal.2d 229, 240.)
DISPOSITION
The judgment is affirmed.
We Concur:
MALLANO, Acting P. J.
VOGEL, J.