Opinion
F061490 Super. Ct. No. MCR035136
02-15-2012
THE PEOPLE, Plaintiff and Respondent, v. PAUL KIET PHAM, Defendant and Appellant.
Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Janet E. Neeley and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. Rigby, Judge.
Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Janet E. Neeley and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
After one jury deadlocked, a second jury found Paul Kiet Pham guilty of two sex offenses (one a felony, the other a misdemeanor) on the basis of a conversation he had with a 15-year-old boy. The court placed him on felony probation with county jail time and ordered him to register as a sex offender. On appeal, he challenges an evidentiary ruling and the sex offender registration order. We affirm.
BACKGROUND
On May 27, 2009, the district attorney filed an information that charged Pham with communicating with a minor with the intent to commit oral copulation (count 1; Pen. Code, §§ 288.3, subd. (a), 288a), a felony, and with annoying or molesting a minor (count 2; § 647.6, subd. (a)), a misdemeanor.
All further statutory references are to the Penal Code except where otherwise noted.
On April 1, 2010, the first jury informed the court that "we are unable to come to a unanimous decision on both charges." The court polled the jurors individually, found the jury "hopelessly deadlocked," and declared a mistrial.
On June 21, 2010, the second jury found Pham guilty as charged. On December 1, 2010, the court placed him on felony probation with 120 days of local jail time, and ordered him to register as a sex offender pursuant to section 290.
EVIDENCE
One evening, motel manager Kamlesh Patel testified, an "Asian guy"—a "skinny, tall, little bit old man"—walked into his motel and asked about rooms and prices. After Patel showed him one room, the man asked to see another, left without saying anything, and walked across the street to the fire station. Asked whether he would recognize him, Patel replied, "I'm not sure. Maybe, may[be] not."
Volunteer firefighter Brandon Belt testified that he and about a half-dozen other firefighters were cleaning the fire truck when Pham walked over from the motel across the street and asked if there were any other hotels. Pham said that the motel across the street "wasn't a very nice one." Belt agreed that the motel across the street was "not the best." He could see quality was an issue for Pham and pointed out where the other hotels were. Pham asked if he could use the phone, and Belt said he could, but 20 or 30 minutes later Pham was still on the phone. All of the other firefighters had gone home.
Belt saw that Pham was not talking on the phone and, in reply to his question why, Pham said his friend had put him on hold. Belt said he had to lock up and go home. He asked Pham to hang up. Pham hung up, walked outside with Belt, and asked a few more questions about the location and quality of the other hotels. Belt testified that Pham asked him if there was a "brothel" in town. Belt did not know what a "brothel" was and he told Pham he was not sure.
Belt thought Pham "kind of seemed confused" when he asked if Belt had any friends with whom he could stay. Feeling comfortable about neither the question nor the "smirk on his face," Belt replied in the negative and said he had to lock up the fire station and go home. He called a police sergeant with whom he communicated from time to time and described the clothes Pham was wearing and the direction he was walking. "If he was going to ask somebody else that question, he could be in danger," Belt testified, adding, "And if you were to ask the wrong person that question, not being from the town, you could wind up getting severely hurt." As Belt was about to leave the fire station, he saw Pham talking to three boys down the street.
All three boys—who were 14, 15, and 16 years old—testified. The 14 year old testified that Pham asked "if we had a place to stay for him" and that the boys told him about "a hotel down the street" but that he said "he didn't like it." After the boys told him where another hotel was, he said, "No, I don't have that much money." He said he preferred to "stay at a house or something." Then he asked, "Are you trying to get money?" The 15 year old said, "Well, that depends." Pham asked, "Are you going to give me head?" The 15 year old replied, "Hell no," and started yelling at him. Pham walked away in one direction as the boys walked away in another direction. The 14 year old testified he was "70 percent sure" Pham used the word "head" and "100 percent sure" he asked for oral sex, but acknowledged he testified, "I'm pretty sure," at a prior proceeding when asked, "Are you sure that's what he said?" To the 14 year old, "pretty sure" was about the same as "100 percent sure." He was "not completely sure" if Pham used the word "head" and acknowledged he used the word "bed" to ask about a place to stay.
The 16 year old testified that Pham asked "weird questions" about staying the night, taking a shower, and sleeping on a couch or in a bed and then asked the 15 year old "to give him head." All three boys said "no." Pham asked about another place to stay. As the boys started "listing off places around town," Pham slowly started walking away. When the 16 year old talked with a police officer that night, he "wasn't too sure" whether Pham asked for "head" or "sex." At trial, he was positive that Pham asked for "head."
The 15 year old testified that Pham asked if he could take a shower at one of their houses and if he could sleep on one of their couches. The boys said "no." Pham asked the 15 year old if he wanted to make some money. "Well, sure," he replied, and he asked Pham what he had to do. Pham said that "if I was to give him head he would give me money." Some of Pham's words were difficult to make out. The 15 year old told the prosecutor that Pham was speaking English but "had a very bad accent" and that he could "barely understand him." The parts he could not make out he filled in with context.
As the 15 year old turned and started walking away, Pham started walking away in the other direction. The two other boys approached the 15 year old as he was walking away and asked, "Where are you going? Are you going home?" He replied, "Yeah. I'm going to go tell my mom to call the cops on this guy because he just propositioned me for sex." When he said that, the other boys responded differently. The 14 year old had a shocked look on his face. The 16 year old started laughing. "[He] thought I was joking around."
The 15 year old admitted that in 2007, when he was a freshman in high school, he called in a bomb threat that led to the evacuation of the school. As officers searched "for the bomb that was not there," he tried to let them know that "it was just a joke," but they thought he was "just messing around" and said, "Get out of here." He never called law enforcement, the fire department, the school, or anyone else to admit responsibility.
A police officer executing a search warrant for Pham's car found evidence that "someone had been traveling with a lot of belongings" and perhaps even living in his car. The officer found no evidence that someone might have been soliciting sex from a minor.
When Belt got home, he looked up "brothel" out of curiosity. He found out that a "brothel" is "a prostitution house." He was not sure what a hostel is. Asked whether the question posed to him was, "Is there a brothel or a YMCA?" he testified, "Could have been, I don't recollect." After refreshing his recollection with a prior transcript, defense counsel asked him, "[W]hen Mr. Pham asked you about the brothel, did he ask, 'Is there a brothel or a YMCA?'" He testified, "Yes."
The lead Saturday night services pastor at a church in Visalia characterized Pham not only as a devout Christian who attended church regularly but also as a "very culturally and linguistically different" person. As a mandated reporter, the pastor was instructed to look for inappropriate behavior by adults toward children. He never received a report from anyone about any inappropriate behavior by Pham and never observed anything inappropriate about Pham's behavior with teenaged boys, including his own two sons, with whom Pham had probably 80 to 100 contacts with no other adults around. Asking to stay at a stranger's house was consistent with Pham's "extremely frugal" character. Sometimes he stayed in the homes of strangers, some of whom were church members, some of whom were not, and sometimes he stayed the night in his car to save money. The pastor said, "He has a problem with stuttering, and English is not his first language," so "his English is hard to understand."
The pastor's wife, the director of the Saturday night children's department at the church, was also a mandated reporter. The charge Pham was facing at trial did "not line up with any behavior [she had] seen around other children or [her] children, who are the same age boys." Pham did not, in her opinion, have an inappropriate liking for young men. After four years of observing him, she had never received a report from anyone about any inappropriate behavior by him. He "can be difficult to understand at times" because "English is not his first language and he has a tendency to stutter." So "a lot of times you'll ask him to repeat himself or to slow down" and "have to have it in context to be able to understand what he's saying."
One of the teenaged sons of the pastor and his wife characterized Pham as "socially awkward." "Almost naïve," he testified, noting that Pham did not understand how just starting "a conversation with younger people" is "not normal" in our society. Asked if he had encountered "anything inappropriate, awkward or odd" in his contacts with Pham, he testified, "Inappropriate, no[;] awkward or odd, yes." He had never heard Pham use slang terminology.
Pham did not testify. The defense called witnesses who testified to Pham's good character and stated that his heavy accent made it difficult at times to understand him. Defense counsel argued to the jury that Belt may have misunderstood Pham and mistook "brothel" for "hostel." Defense counsel also argued that the boys may have mistakenly heard Pham say "head" when he actually said "bed."
DISCUSSION
I. Admission of "Brothel" Testimony
Pham moved in limine to exclude firefighter Belt's testimony that Pham asked him if there was a "brothel" in town. Defense counsel argued that "the prejudice far outweighs any probative value." In opposition, the prosecutor argued that Belt's testimony was "quite relevant" to show that he and Pham spoke English without any problem understanding each other and that Pham talked with the 15 year old after he talked with Belt. The prosecutor argued that Pham's "inquiring about a brothel and other such things in the area really goes to the heart of the specific intent that's required for the charges in this case."
Arguing that Belt's testimony was "cumulative" to evidence that Pham spoke English and then talked with the 15 year old, defense counsel focused on Belt's testimony that Pham asked about a brothel. Commenting that "a major part of the defense's case" at his first trial "was whether or not he asked for a brothel or a host[el]," defense counsel observed that the word "brothel" was just part of the question, "'Is there a brothel or a YMCA here?'" Defense counsel argued: "Whether it's brothel or host[el] is not relevant to prove any element of the offenses." Finally, "even if he did ask for a brothel, the probative value in that is diminished by the prejudice that far ... exceeds any probative value."
The court characterized Belt's testimony about speaking with Pham in English as "relevant" and his testimony about corroborating Pham's subsequent conduct as "useful." As to "the inquiry concerning a brothel, the specific inquiry about a brothel itself is not an element of the charge here, but if believed by the jury, that would be an indication that the person making the inquiry is out seeking some sort of sexual gratification. And that, I believe, is relevant to this proceeding." Finding that the prejudice did not outweigh the probative value (Evid. Code, § 352), the court denied the motion.
A. Relevance and Evidence Code Section 1101
"We review for abuse of discretion a trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code section[] 1101 .... [Citations.]" (People v. Harrison (2005) 35 Cal.4th 208, 230.) The trial court has considerable discretion in determining the relevance of evidence. (People v. Clark (2011) 52 Cal.4th 856, 922 (Clark).) "A court abuses its discretion when its ruling 'falls outside the bounds of reason.' [Citation.]" (People v. Osband(1996) 13 Cal.4th 622, 666.) The exercise of a court's discretion will not be disturbed on appeal unless it is shown that the trial court exercised its discretion "'in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 (Rodrigues).)
Here, the trial court ruled the brothel testimony admissible, not because it tended to show Pham had a propensity to commit sex crimes (Evid. Code, § 1108), but because it was pertinent to two major issues in the case: Pham's ability to speak and be understood in the English language and his intent to seek sexual gratification (Evid. Code, § 1101, subd. (b)).
As to the first issue, witnesses testified that Pham spoke with a heavy accent. One of the defense contentions was that the prosecution witnesses misunderstood what Pham said to them, suggesting that Belt heard "brothel" when Pham said "hostel" and that the boy may have mistook "bed" for "head." Since proof of the crimes charged depended on the words spoken, and because the defense maintained that the prosecution witnesses were mistaken as to what they heard Pham say, a conversation that Pham had with Belt minutes before he spoke with the boys was relevant on the issue of the ability of Pham to speak English and the ability of others to understand his speech.
The second reason for admitting this evidence was that it was relevant to prove Pham's intent—that is, if, minutes before speaking to the boys, he expressed interest in locating a brothel, a place where one pays money for sex, such evidence tended to support the boy's testimony that Pham asked him if he wanted to make money by giving him "head." From this evidence, it was reasonably inferable that Pham wanted sex and was willing to pay money for it. While Evidence Code section 1101 generally renders inadmissible evidence of a person's character in the form of specific instances of conduct, such prohibition does not apply when the evidence is admitted to prove some fact such as motive or intent. Here, the defense contended that Pham never asked for oral sex and therefore either the boy fabricated the testimony that Pham asked for oral sex or misunderstood his words when Pham merely inquired about a place to stay overnight. The brothel remark constituted some evidence that Pham had sex on his mind and was willing to pay for it minutes before he spoke with the boys. One reasonable inference that could be drawn from this evidence was that Pham wanted oral sex and was willing to pay for it, regardless of whether it was with a female adult or with a boy under the age of 18. The fact that paying for sex at a house of prostitution is not identical to propositioning a boy about oral sex did not render the brothel remark inadmissible under Evidence Code section 1101. "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent." (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).) The brothel remark tended to reveal Pham's state of mind— that he desired sex and was willing to pay money for it. This evidence was probative of Pham's motive and intent, and tended to validate the boy's account of what Pham said to him and rebut the defense argument that the boy misunderstood what Pham had said.
People v. Earle (2009) 172 Cal.App.4th 372 (Earle) does not support Pham's assertion that the brothel testimony should have been excluded. In Earle, the defendant was charged with indecent exposure and sexual assault. The two crimes occurred months apart and involved different victims. The trial court denied a motion to sever the charges for trial. The Court of Appeal, in a two-to-one decision, reversed the assault conviction, concluding the trial court abused its discretion in denying the motion to sever because, absent expert testimony to the contrary, the commission of the indecent exposure did not rationally support an inference that the perpetrator had a propensity or predisposition to commit rape. (Id. at p. 398.)
Unlike Earle, this case concerned the application of Evidence Code sections 352 and 1101, not a motion to sever. Nor was the brothel testimony offered to show a propensity to commit a crime. Also, the brothel testimony contained two independent relevant bases for admission: Pham's ability to speak and be understood in the English language and his intent to seek sexual gratification. Earle is not in conflict with the trial court's ruling in this case.
At oral argument, Pham cited Clark, supra, 52 Cal.4th 856 in support of his contention that the brothel remark was not relevant. In Clark, the defendant was charged with, inter alia, first degree murder during an attempted rape. The trial court allowed, over defense objection, the defendant's wife to testify that she and the defendant last had sexual relations two weeks before the murder. The high court agreed with the defense that to infer from such evidence that the defendant was sexually frustrated and thus motivated to rape was highly speculative and therefore irrelevant; however, under the facts of the case, the error was harmless. (Id. at p. 924.)
Clark's facts are distinguishable from our case. In the instant case, the jury had to determine what Pham actually said to the boys and what his intent was when he said it. The brothel conversation with Belt occurred minutes before Pham's conversation with the boys. In both conversations, Pham arguably expressed an interest in paying money for sex. Unlike the highly speculative connection between the evidence Clark had not had sex with his wife during the two weeks before the murder and his intent to rape, here the connection between asking about a brothel and minutes later propositioning a minor for sex was not so highly speculative as to render it irrelevant. "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent." (Ewoldt, supra, 7 Cal.4th at p. 402.)
We find no abuse of discretion in admitting this evidence as against the claims that it was not relevant or that it violated Evidence Code section 1101.
Having determined that the brothel testimony was otherwise relevant and admissible on two different grounds, we now turn to the question of whether the trial court abused its discretion in overruling Pham's Evidence Code section 352 objection to this evidence as unduly prejudicial.
Evidence Code section 352 permits the trial court to exclude evidence if its probative value is substantially outweighed by the probability that its admission will create substantial danger of undue prejudice. Undue prejudice means evidence that tends to evoke an emotional bias against the defendant with very little effect on issues, not evidence that is probative of a defendant's guilt. (People v. Tran (2011) 51 Cal.4th 1040, 1048 (Tran).) Again, we review the lower court's ruling under the abuse of discretion standard of review. (People v. Pollock (2004) 32 Cal.4th 1153, 1171.)
Here, the subject testimony was probative on two separate grounds: Pham's ability to communicate in English and his intent. So, the probative value of this testimony was substantial. This evidence was not prejudicial within the meaning of Evidence Code section 352 simply because it was probative of Pham's guilt. (Tran, supra, 51 Cal.4th at p. 1048.) Whether this evidence was inherently prejudicial to the defense is debatable since it tended to validate the defense position that Pham's broken English caused others to misunderstand what he said. Even if such evidence carried some prejudicial effect because it portrayed Pham in a bad light (seeking prostitution), we cannot say as a matter of law that it was unduly prejudicial or that it is probable the prejudice substantially outweighed its probative value. The trial court did not act "'in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.'" (Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.) We find no abuse of discretion.
II. Sex Offender Registration
Pham was convicted of both communicating with a minor with the intent to commit oral copulation (§§ 288.3, subd. (a), 288a) and annoying or molesting a minor (§ 647.6, subd. (a)). He was ordered to register as a sex offender pursuant to section 290. He contends that this order denies him equal protection of the law, citing People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier). Hofsheier held that persons convicted of oral copulation with a 16 year old (§ 288, subd. (b)(1)) are similarly situated with persons convicted of unlawful sexual intercourse with a 16 year old (§ 261.5, statutory rape), and therefore requiring the former but not the latter group to register is an unconstitutional deprivation of equal protection of the law. (Hofsheier, supra, at pp. 1207-1208.)
Assuming, without deciding, that requiring registration for a conviction of communicating with a minor with the intent to commit oral copulation violates equal protection, the same cannot be said for requiring registration for a conviction of annoying or molesting a minor. A person convicted of annoying or molesting a minor is not similarly situated with one convicted of statutory rape or communicating with a minor with the intent to commit oral copulation. Section 647.6, subdivision (a) targets conduct that is objectively disturbing and motivated by an abnormal sexual interest in the minor. (People v. Lopez (1998) 19 Cal.4th 282, 290.) The registration requirement in this case was valid based on the section 647.6, subdivision (a) conviction alone.
DISPOSITION
The judgment is affirmed.
____________
Kane, J.
I CONCUR:
Dawson, J. GOMES, Acting P.J., Dissenting.
This case turns on a single word. Did Pham ask about comparable lodgings, as the defense attorney suggested? ("Is there a hostel or a YMCA here?") Or did he ask about polar opposites, as the firefighter testified? ("Is there a brothel or a YMCA here?")
Testifying that he had no idea what a "brothel" or a "hostel" was, the firefighter admittedly had absolutely no context to help him figure out what Pham — indisputably a socially awkward immigrant with a very bad accent — asked. Yet the court allowed him to testify Pham asked about a brothel.
Evidence is prejudicial within the meaning of Evidence Code section 352 if it uniquely tends to evoke an emotional bias against a party as an individual or would cause the jury to prejudge a person on the basis of extraneous factors. (People v. Cowan (2010) 50 Cal.4th 401, 475.) Without the firefighter's testimony, nothing in the record showed, let alone intimated, a nexus between an adult male's propensity to commit a sex act with a consenting adult female prostitute and an adult male's propensity to commit a sex act with a juvenile male legally incapable of consenting. The testimony of the firefighter, a first responder with credibility as a witness and respect in the community, branded Pham as a sexual predator on the prowl.
Finding the firefighter's testimony admissible under Evidence Code section 1101, subdivision (b), the majority fails to appreciate the grave prejudice of his testimony under Evidence Code section 352. I am left to surmise that reasonable minds may differ on whether reasonable minds can differ. I would reverse the judgment.
_________________
GOMES, Acting P.J.