Opinion
B298604
06-05-2020
THE PEOPLE, Plaintiff and Respondent, v. MOONKYO LEE, Defendant and Appellant.
Laura R. Vavakin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Noah P. Hill and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT] THE COURT:
Pursuant to California Rules of Court, rule 8.264(c), it is ordered that the opinion filed June 5, 2020, be modified as follows:
1. On page 4, after the last sentence, add "One of the other two eyewitnesses, Nayeli Flores, testified that when defendant came downstairs after throwing the dog from the balcony a second time, 'he grabbed [the dog from beneath a vehicle,] and slammed [it] to the ground.' The dog 'was still breathing' with his eyes open, and Flores heard him whimper once. The third eyewitness, Yobani Baez, testified that the dog did not move after being thrown down the second time."
2. On page 6, following the first full paragraph at the top of the page, add
"4. Stipulation re: Cause of Death
The parties stipulated that, based on a postmortem examination, the dog died of blunt force trauma to multiple areas of his body, including the head, chest, and abdomen. According to the veterinarian who examined the dog's remains, the skull fracture the dog suffered 'would take an enormous amount of force. The [dog]'s brain was essentially destroyed by the crushing injury to the skull. And based on the presence of active hemorrhages in all three locations, . . . the [dog] was still alive at the time of the injury.'"
3. On page 18, at the end of the partial sentence at the top of the page, before the Disposition, add footnote 4 which reads, "Defendant also contends that we should reverse the jury's true finding on the use of a deadly weapon allegation because the evidence was insufficient to support it. Based on the testimony of Nayeli Flores that the dog was alive before defendant ran over it with his car and the parties' stipulation regarding the cause of death, which provided that the dog was alive when it sustained the fatal crushing injury to its skull and supported an inference that defendant's vehicle supplied the 'enormous amount of force' necessary to cause that crushing injury, we conclude that sufficient evidence supported the jury's true finding on the use of a deadly weapon allegation. (People v. Brown (2014) 59 Cal.4th 86, 106 ['"unless the testimony is physically impossible or inherently improbable, the testimony of a single witness is sufficient to support a conviction"'].)"
4. On page 18, following the second sentence of the Disposition, after the word crime, delete the period and add ", including on the deadly weapon enhancement."
The petition for rehearing is denied. There is no change in judgment. /s/_________
BAKER, Acting P. J. /s/_________
MOOR, J. /s/_________
KIM, J.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA469081) APPEAL from a judgment of the Superior Court of the County of Los Angeles, Renee F. Korn, Judge. Reversed and remanded. Laura R. Vavakin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Noah P. Hill and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant Moonkyo Lee guilty of animal cruelty in violation of Penal Code section 597, subdivision (a). It also found true the allegation that defendant used a deadly weapon—an automobile—in the commission of the crime within the meaning of section 12022, subdivision (b)(1). On appeal, defendant raises a number of arguments, including that the prosecutor engaged in prejudicial misconduct by urging the jurors to consider defendant's postarrest silence and request for an attorney as evidence of guilt. We agree that the prosecutor engaged in prejudicial misconduct and therefore reverse the judgment and remand for retrial.
All further statutory references are to the Penal Code unless otherwise stated.
II. BACKGROUND
A. Opening Statement
In her opening statement, defense counsel did not dispute that defendant had killed a dog. Counsel stated, however, "that is not the entire extent of the tragedy you'll hear about in this case." She explained that the jury would hear "the story of a healthy happy family man[, defendant,] in his early 50's suddenly struck down by a severe mental illness." She further told the jury she expected that "at the end of the case, you will find that, because of [defendant's] mental state, he did not have the intent required to commit animal cruelty under the law, and for that reason I will be asking you to return a vote of not guilty." B. Prosecution's Case
1. Defendant's son
On June 24, 2018, defendant lived with his wife, his adult son, Jack, and his 15-year-old son, Chris, in a second-floor apartment in a building located on James M. Wood Boulevard (defendant's building). Defendant's other adult son, Brian, had moved out approximately a year earlier, but he left his six- or seven-month old pug, the victim of the animal cruelty charge, to live with the family.
The day after the dog was killed, Chris spoke to a police officer by telephone and recalled telling him that he believed defendant killed the dog because he was upset about Brian being gay. But, by the time of trial, Chris believed that the killing "was just [the result of a] mental illness [defendant] was suffering."
Prior to the incident, Chris noticed that defendant "brought . . . a lot of people to [the family's home], but [Chris] thought [defendant] just wanted to talk to a lot of people." He also observed that defendant "was talking to . . . nothing out of the sky." And on one occasion, Chris saw defendant "praying . . . in the kitchen [and] he . . . told [Chris] to come over to him. [Defendant asked Chris] if [he could] see without his glasses. [Chris] told him yes. And [defendant] wanted [Chris] to . . . live without [his] glasses."
2. Eyewitnesses to the incident
Vilma Luna lived in an apartment building (witnesses' building) located next to defendant's building. On June 24, 2018, at approximately 6:45 p.m., Luna was with a group of people in the parking lot behind the witnesses' building when she saw an object fall and land in the lot between two cars. She went to where the object landed and saw a small- or medium-sized pug. When Luna returned to the group, the dog followed her. The dog did not appear to be bleeding, but walked "as if it was hurt."
Luna noticed defendant watching the group from his balcony. Defendant then came downstairs, grabbed the dog by the neck, went back upstairs, and threw him back down. This time, the dog landed under a car. The dog "was alive, but it looked [as] if he was dying." His eyes were open, he was breathing, and he did not appear to be bleeding, but he did not move.
Defendant returned to the scene, picked the dog up yet again, and "slammed" it "forcefully" to the ground. At that point, Luna could not determine if the dog was still alive. Defendant did not say anything; he just looked at the group and pointed at each of them. Afraid of what defendant might do next, Luna ran upstairs.
From the stairway, Luna saw defendant enter his car and run over the dog two or three times. Defendant then got out of his car, picked up the dog, and threw it in the trash can. He then left the scene in his car.
Luna's description of defendant's conduct was corroborated at trial by two other eyewitnesses, videos of the incident, and audio recordings of 911 calls.
3. Officer Mendez
On June 24, 2018, Los Angeles Police Officer Alan Lopez-Mendez responded to a report of animal cruelty on James M. Wood Boulevard. About 10 to 15 minutes after Officer Mendez arrived, defendant drove into the driveway in a car, "at a fast rate of speed." Despite his speed, defendant was able to navigate the narrow driveway and park his SUV in one of the parking spaces without any difficulty.
Officer Mendez ordered defendant to exit the car, put his hands up, and walk backward toward the officers' location. Defendant complied without difficulty, at which point Officer Mendez's partner handcuffed him. Defendant did not appear dazed or confused.
During his six-month training period at the police academy, Officer Mendez was taught "some of the indicators" of mental illness officers normally encountered in the field. According to the officer, persons who suffered from mental illness "talk[ed] to themselves, hit[] themselves, [looked disheveled], [and] . . . look[ed] at [officers with a fixed] gaze." During his six-and-one-half years of police experience, Officer Mendez had encountered "[t]housands" of mentally ill persons. Based on his training and experience, Officer Mendez believed he had "a pretty good indicator of when someone [he was] investigating [was] mentally ill or not mentally ill."
Officer Mendez testified that defendant did not exhibit any of the characteristics of mental illness at the time of his arrest. Specifically, during the arrest, defendant did not talk to himself, bang his head, or exhibit an empty stare or gaze. Instead, he appeared angry, but was "very alert" and responsive to the officers' orders. Officer Mendez did not believe defendant was suffering from any type of mental illness.
On cross-examination, Officer Mendez admitted that people who do not talk to themselves, hit themselves, gaze strangely, or appear disheveled could still be psychotic and suffer from delusions. C. Defense Case
1. Defendant
Defendant testified on his own behalf as follows. On the morning of June 24, 2018, defendant lived with his wife and two of his sons in an apartment in defendant's building. His 22-year-old son, Brian, was not living with the family, but Brian's pug lived there. When defendant returned home after being out, he saw Brian, who smelled of alcohol. Defendant and Brian had a disagreement over the alcohol, which defendant later regretted. Defendant also raised his voice at his other son, Jack. He then "went out to the backyard to look for Brian, and . . . everything was dark, pitch black, no sound. When [he] regained [him]self, [he] was at the Olympic police station. And when [he] came home, there were police officers, and [he] got arrested, and that's what happened."
Defendant believed that he had blacked out for about 20 to 30 minutes. Defendant did not remember throwing the dog off the balcony or interacting with the people in the parking lot that day. It was the first time defendant had experienced such symptoms.
Defendant denied that he ever argued with Brian about being gay and insisted that he was not angry Brian was gay.
Defendant had previously "kicked a vehicle at a gas station," but did not remember the incident afterward. He was shocked to learn what he had done, and he was later prosecuted based on the incident.
During the six-month period prior to June 24, 2018, defendant believed that God could make him invisible. He also brought homeless people to live in his home "to help them if [he] could."
About a month before June 24, 2018, defendant was evaluated by a mental health professional and attended weekly counseling. He was not prescribed any medication for his mental health until after the incident. He had also been diagnosed at some point with an unspecified "mental health issue."
During cross-examination, defense counsel asked defendant about the day after his arrest, when he was interviewed by the police, and provided with the assistance of a Korean language interpreter. The prosecutor and defendant engaged in the following exchange:
"[Prosecutor:] At no point did you say to these police officers 'what am I being arrested for?'
"[Defendant:] Correct. I didn't ask.
"[Prosecutor:] And at no point did you say to the police officers, 'I blacked out during this time'?
"[Defendant:] Because the police never asked me and there was no reason for me to say anything.
"[Prosecutor:] So at this point, according to your version of the facts, you've been arrested. You have no idea why, . . . and you have a Korean interpreter, and the police are communicating with you via that Korean interpreter. You didn't think to mention either 'Why am I being arrested?' 'What was I arrested for?' 'I blacked out for a period of time.' 'I don't remember yesterday.' You didn't say any of those things to the police, correct?"
Defendant did not object and instead explained that the police and the interpreter had advised him that "If [he] didn't want to talk, [he] didn't have to talk and [he] could talk through [his] attorney and, if [he would] like to talk to the attorney, then [he] should talk to the attorney. So [he] told them that [he] wanted to talk to the attorney first, and if there was any question given, then [he] would answer those questions."
2. Defendant's wife
On June 24, 2018, defendant's wife of 25 years, Hwa Jung Yoon, was living with defendant, her oldest son, and her youngest son. During the six-month period prior to that date, she began to notice changes in defendant's behavior.
Yoon saw defendant talk "a lot looking . . . towards the sky," but she could not understand what he was saying. He also "yelled at the sky a lot, very often." In addition, defendant called Yoon "Satan, . . . the bad spirit," claiming the "devil had gotten into [her]." On another occasion, defendant told Yoon that he was invisible, and once claimed that because their son had become president they could now "splurge" and "[l]ive well."
Also, during the prior year, defendant told Yoon that he had the power to heal people possessed by the devil. He would bring homeless people to the apartment, feed them, and provide them a place to sleep. Yoon believe he was "trying to do the treatment on them" behind closed doors in the garage.
Yoon recalled that in January 2018, defendant left home and did not return for five days. When he returned home, between 12:00 and 2:00 a.m., he said, "'God is coming so we have to go greet [him].'" Defendant forced Yoon to go out to the street with him. She eventually returned to the apartment, but he stayed outside until sunrise.
On another occasion during that period, while defendant was driving Yoon to work, he told her, "'Hey, be quiet. Hush. Don't say anything. There [is a black car] coming after us. We have to run off.'" Defendant then proceeded to "Prayer Mountain," instead of Yoon's workplace. After about an hour, defendant said, "'Hey, we're okay now,'" and the couple returned home. When Yoon later tried to discuss the incident with defendant, he had no memory of it. D. Jury Instructions
The trial court delivered jury instructions, including CALCRIM No. 3425 which provided: "The defendant is not guilty of [c]ruelty to [a]nimals if he acted while unconscious. Someone is unconscious when he or she is not conscious of his or her actions. [¶] Unconsciousness may be caused by a blackout. [¶] The People must prove beyond a reasonable doubt that the defendant was conscious when he acted. If there is proof beyond a reasonable doubt that the defendant acted as if he were conscious, you should conclude that he was conscious, unless based on all the evidence, you have a reasonable doubt that he was conscious, in which case you must find him not guilty." E. Closing Argument
During her summation argument, and without objection, the prosecutor made the following comments concerning defendant's arrest and interview by the police: "And you would think if you were being arrested for something [about which] you really had no recollection . . . , [of which you] had absolutely no memory . . . , the first thing you would wonder is 'What am I being arrested for?' Right? And I asked . . . Detective Angulo,[] 'Did the defendant say that to you?' No, he didn't say that. [¶] [Defendant] had an interpreter there. He didn't inquire what he was being arrested for. Even at the time he was being arrested, he didn't look confused. [The officer] said he just looked angry. Why is that? Because he knew exactly what he was being arrested for. He knows—he remembers. He did all this intentionally. He threw this dog off the balcony and killed it because he was upset with his sons. That's why he didn't ask 'What am I being arrested for?' or 'What's going on?' None of that. He accepted the fact that he was being detained and taken into custody because he knew exactly what he did wrong." The prosecutor then concluded her closing argument as follows: "So it's clear beyond any reasonable doubt the defendant killed [the dog] because he was upset with his sons and that he did so intentionally and that he was aware and remembers doing so which is why he didn't inquire as to 'Why are you arresting me?' Thank you."
The record does not reflect that the prosecutor asked Los Angeles Police Department Detective Jose Angulo any questions about defendant's interview with the police.
There is no evidence that defendant had an interpreter present when he was initially arrested. Rather, defendant testified that the police had provided the assistance of an interpreter the following day and that the interpreter translated the Miranda warnings. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).) --------
During her closing argument, defense counsel addressed defendant's interview with the police as follows: "Now, whether or not he decided to tell the police about his experience, or why he decided not to tell the police about his experience, we don't know. We did hear that he asked to have an attorney present. We don't know exactly what was said to [defendant] during that time. So it's possible that for a number of reasons, [defendant] didn't feel comfortable explaining the situation to the police officer and preferred instead to wait for an attorney."
In rebuttal, the prosecutor returned to the issue of defendant's interview, and reminded the jurors that defendant had not claimed that he had blacked out "at the time that the crime occurred . . . . He didn't even say that the next day when the officers . . . interviewed him with an interpreter and gave him an opportunity to explain what happened." The prosecutor then added that the reason defendant had asked for a lawyer was because he knew he had done something wrong: "Also at the point that he got an interpreter . . . , the first thing he did was ask for a lawyer. What do you need a lawyer for if you don't even know why you're in trouble; right? [I]f you don't know why you were detained, then why is [your] first question, 'Can I get a lawyer?' That's something that people ask when they know they've done something wrong. They want representation so they can go about defending themselves in the best manner appropriate." Defense counsel objected based on "[i]mproper argument," and the trial court sustained the objection. Defense counsel, however, did not request a curative instruction or an admonition.
After the jurors were excused to begin their deliberations and while the parties were reviewing the verdict forms that would eventually be provided to the jury, defense counsel stated, "I just wanted to put the reason for my objection during [the prosecutor's rebuttal] on the record. I don't remember the exact language, but it appeared to me that [the prosecutor] was arguing that the only reason [defendant] would not have spoken to the police . . . is that he remembered and had guilt, and I believe that is an improper comment on [defendant's invocation of] his right to an attorney."
The trial court responded, "And that's why the court sustained [the objection]."
Defense counsel then added, "I don't have any belief at all that [the prosecutor] was attempting to prejudice [defendant] in any way, but my understanding is that I have to ask the court to find prosecutorial misconduct for the record to be clear on appeal."
The trial court, however, found that the prosecutor's comment did not constitute misconduct. "And the court is not finding [prosecutorial misconduct]. I note the one thing that I think—and why this certainly in the court's view fails, the defendant himself, when he took the stand, talked about what happened when the police came. And I think that opens the door for [the prosecutor] to make that comment. [¶] So the court does not believe it's prosecutorial misconduct. The court notes this area is confusing, but because that door was opened—he opened the door as to what happened during the arrest, and as such the court finds no prosecutorial error—misconduct at this time."
III. DISCUSSION
Defendant contends that the prosecutor engaged in prejudicial misconduct during summary and rebuttal arguments when she suggested that defendant did not tell police he blacked out, and instead insisted on consulting an attorney before being interviewed, because he was aware that he had done something wrong. A. Standard of Review
A claim of prosecutorial misconduct is governed by the abuse of discretion standard of review. (People v. Alvarez (1996) 14 Cal.4th 155, 213.) "To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) B. Forfeiture
The Attorney General asserts that, by failing to timely object, defendant forfeited his challenge to the prosecutor's comments, during summary argument, about defendant's silence following his arrest. The Attorney General also maintains that defendant forfeited his challenge to the prosecutor's rebuttal comments on defendant's request for an attorney because defendant's objection was not accompanied by the necessary request for a curative instruction or admonition. We disagree that the misconduct claim based on the prosecutor's rebuttal comment was forfeited.
"'As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]' . . . [¶] The foregoing, however, is only the general rule . . . . [T]he absence of a request for a curative admonition does not forfeit the issue for appeal if 'the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.'" (People v. Hill (1998) 17 Cal.4th 800, 820, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
We will assume for purposes of this opinion that defendant's failure to object to the prosecutor's comments during summary argument about defendant's postarrest silence forfeited his challenge to those comments on appeal. But, when the prosecutor returned to the subject of defendant's postarrest silence during rebuttal and added that defendant's request for an attorney demonstrated that defendant knew that he had "done something wrong," defense counsel objected on the grounds of improper argument. Although the court initially sustained the objection, when the defendant later argued that the prosecutor had engaged in misconduct, the court disagreed.
Therefore, we conclude that defendant adequately raised, albeit belatedly, the propriety of the prosecutor's rebuttal argument about defendant's postarrest exercise of his constitutional rights. Further, because the trial court overruled defendant's objection on prosecutorial misconduct grounds, defendant's failure to ask for a curative instruction or other remedy at that point did not forfeit this issue on appeal. C. Merits
"'"'A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it "infects the trial with such unfairness as to make the conviction a denial of due process." [Citations.] In other words, the misconduct must be "of sufficient significance to result in the denial of the defendant's right to a fair trial." [Citation.] A prosecutor's misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."'"' ([People v. Powell (2018) 6 Cal.5th 136,] 172.)" (People v. Hoyt (2020) 8 Cal.5th 892, 943.)
"Wainwright[ v. Greenfield (1986) 474 U.S. 284 (Wainwright)] and Doyle[ v. Ohio (1976) 426 U.S. 610 (Doyle)] are founded on the notion that it is fundamentally unfair to use post-Miranda silence against the defendant at trial in view of the implicit assurance contained in the Miranda warnings that exercise of the right of silence will not be penalized. (Wainwright[ ], supra, 474 U.S. at p. 295 . . . .) A similar process of reasoning supports the conclusion that comment which penalizes exercise of the right to counsel is also prohibited. (People v. Fabert (1982) 127 Cal.App.3d 604, 610-611 . . . ; People v. Schindler (1980) 114 Cal.App.3d 178, 188-189 . . . .)" (People v. Crandell (1988) 46 Cal.3d 833, 878.)
The Attorney General, citing People v. McDaniel (1976) 16 Cal.3d 156, 177, People v. Hill (1967) 66 Cal.2d 536, 559, and People v. Rosoto (1962) 58 Cal.2d 304, 364-365, argues that no misconduct occurred here because the prosecutor's rebuttal argument constituted a fair response to the arguments of defense counsel. We disagree.
Defendant did not, on direct examination, introduce any issue concerning his postarrest interview with the police. Instead, it was the prosecutor who first broached that subject matter during her cross-examination of defendant. In response to that line of questioning, defendant testified that he did not tell the police he blacked out because the police never asked him that question and because he had invoked his rights to remain silent and to have an attorney present. Moreover, once the prosecutor elicited those facts from defendant, she chose to comment on them, first, in summation, when she emphasized that defendant's postarrest silence suggested that he was guilty, and then later, during rebuttal, when she attempted to equate defendant's request for an attorney with an implicit admission of guilt. Thus, the prosecutor's rebuttal argument was not a fair response to defendant's closing argument, but rather a variation on a theme that she had first developed during cross-examination and closing argument.
"'The right to counsel is so basic to all other rights that it must be accorded very careful treatment. Obvious and insidious attacks on the exercise of this constitutional right are antithetical to the concept of a fair trial and are reversible error.' [Citation.]" (People v. Fabert, supra, 127 Cal.App.3d at p. 610.) Here, the prosecutor, during rebuttal, told the jurors that defendant asked for a lawyer because that is "something that people ask when they know they've done something wrong." In other words, she argued that defendant's invocation of the constitutional right to counsel was a reason to find him guilty. Although there is no evidence that the prosecutor acted with ill-will (at trial, defense counsel expressed her belief that the prosecutor did not intend to prejudice defendant), this argument by the prosecutor was "flagrantly improper." (People v. Schindler, supra, 114 Cal.App.3d at p. 189.)
Further, the evidence of defendant's guilt was not overwhelming, at least not on the single issue disputed by defendant at trial, namely, whether he had acted consciously when he killed his son's dog, a killing that he did not dispute. Defendant offered his own testimony that he had blacked out as a result of his later-diagnosed, but still unnamed, mental illness. His testimony was corroborated by his son's testimony about his past strange behavior and his wife's testimony about prior incidents of black outs. The prosecution rebutted this testimony with that of Officer Mendez, who opined that defendant did not display symptoms typical of those suffering from a psychotic delusion, but who also admitted that not everyone who suffered from such delusions displayed typical symptoms. We therefore conclude that defendant was prejudiced by the prosecutor's misconduct. (See In re Martin (1987) 44 Cal.3d 1, 52 ["Prejudice [from misconduct] appears here not only under the federal Chapman [v. California (1967) 386 U.S. 18] standard but also under the state law standard of People v. Watson (1956) 46 Cal.2d 818 . . ."].)
IV. DISPOSITION
The judgment is reversed. The People may retry defendant for the charged crime.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J. We concur:
BAKER, Acting P. J.
MOOR, J.