Opinion
A147708 A149297
12-22-2017
THE PEOPLE, Plaintiff and Respondent, v. PATRICK FOO TZENG, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 223418)
Appellant Patrick Foo Tzeng appeals after a jury found him guilty of committing sexual offenses against a massage client. On appeal, he contends the trial court erred in denying his Batson/Wheeler motions during jury selection. (Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).) He also contends the prosecutor committed misconduct during closing argument and insufficient evidence supports aspects of the trial court's restitution award. We reverse and remand regarding one aspect of the restitution award, but otherwise reject appellant's claims on appeal.
PROCEDURAL BACKGROUND
In January 2015, appellant was charged by information with oral copulation of an unconscious person (count one; Pen. Code, § 288a, subd. (f)) and sexual penetration of an unconscious person (count two; Pen. Code, § 289, subd. (d)(1)).
In September 2015, a jury found appellant guilty as charged. In March 2016, the trial court imposed a three-year sentence on count one and a concurrent three-year sentence on count two. Appellant appealed.
In July 2016, following a hearing, the trial court ordered appellant to pay victim restitution in the amount of $20,750. Appellant appealed, and this court consolidated the two appeals.
FACTUAL BACKGROUND
The Prosecution's Case
On January 22, 2013, the victim, Alexandra V. (Ms. V.), was scheduled to attend a class at the San Francisco School of Massage and Bodywork at two in the afternoon. At around 12:20 p.m., Ms. V. stopped at the Super Foot Spa on 11th Avenue in San Francisco to get a massage. She had been there on five or six prior occasions.
When Ms. V. entered the Super Foot Spa, she requested by name a person who had previously given her massages. That person was absent, but appellant offered to give Ms. V. a massage. Appellant escorted Ms. V. past a room with several massage chairs where she usually received massages and led her to another room that had only one massage chair. Appellant pulled shut a curtain that covered the doorway.
Ms. V. was wearing layered shirts, a skirt, leggings, and underwear. The massages she received at the Super Foot Spa were always done over clothing. Appellant massaged various parts of Ms. V's body and then fully reclined the massage chair and asked her to turn over on her stomach.
After Ms. V. turned over, she fell asleep; this had often occurred during massages. When she woke up, she was lying on her back, her knees were raised, and appellant's face was between her thighs. The left leg of her leggings had been pulled off and the right leg had been pulled down to her knee. Her underwear had been removed. Appellant was orally copulating her and digitally penetrating her.
Ms. V. sat up, pulled on her leggings, grabbed her belongings, and ran to her car. When she got to her car, she saw it was 1:50 p.m. She went to a store to get her phone fixed and then went home and put her leggings and underwear in a bag. The next day, she went to a police station to report the incident and then went to a hospital. An officer who interviewed her at the hospital testified she was shaking and crying. She described the sexual assault and denied soliciting or agreeing to have sex with appellant. She also told the officer that she had a condition called borderline personality disorder (BPD) and that she "can blank out sometimes." She told a nurse who examined her that she was not sure she had all her memories because she "blanks out traumatic memories as a protective mechanism."
At trial, Ms. V. testified that due to her BPD she could overreact emotionally with anger, sadness, or other negative feelings that could last for months. By the date of the incident in 2013, she had made "significant progress" dealing with her condition after years of therapy. Previously, her BPD sometimes caused her to have "fuzz outs" for hours during periods of great anger or sadness. She would forget things she had done or said. However, she had not experienced a "fuzz out" since at least 2010.
The San Francisco Police Department Crime Laboratory found saliva on Ms. V.'s leggings in several locations. DNA testing showed appellant was a possible contributor; an expert testified the probabilities of the DNA being from someone other than appellant were 1 in several billions or trillions, depending on the sample.
The Defense Case
Appellant testified on his own behalf through an interpreter. He was originally from Taiwan, and had been in the United States for 34 years. In January 2013, he was 55 years old and had worked at the Super Foot Spa for three or four months. He did not have his massage license at the time, but he passed the exam and got his license in March 2013.
Appellant testified about the January 2013 incident. He claimed that, in the middle of the massage, Ms. V. stood up and pulled down her leggings; she was not wearing underwear. She took appellant's right hand and put in on her belly and then between her legs. Next, she moved his head between her legs and he orally copulated her for one or two minutes. Eventually, appellant told her the time was up and she left.
Appellant testified he did not know what to do when Ms. V. took off her leggings. He explained, "At the time I felt it was inconceivable and I thought about a lot of questions and I was wondering what I was supposed to do . . . . My job—the job and her condition if she cries out say, oh, the boss—what am I supposed to do." He testified it felt as if he had to do what she wanted.
Appellant's former spouse testified he was sexually normal, had good moral character, and would never sexually assault a woman.
Dr. Laeeq Evered, a clinical psychologist and neuropsychologist, testified as an expert regarding "the neurological effects and psychological symptoms of [BPD] and the effects on the cognitive processes of the brain." He testified the disorder is "characterized by pervasive instability in relationships, self-image, emotional regulation, and also includes marked impulsivity." A person suffering from BPD "has great difficulty dealing with stress." "The individual will become very easily overstimulated to the degree that . . . their brain shuts down." That impairs judgment, problem solving, and memory. People with BPD cope with their "emotional dysregulation" by oversimplifying events and acting impulsively. However, Dr. Evered acknowledged that he had never interviewed Ms. V. and that the symptoms of BPD can vary depending on the individual.
DISCUSSION
I. The Trial Court Did Not Err in Denying Appellant's Batson/Wheeler Motions
A. Legal Background
"The prosecution's use of peremptory challenges to remove prospective jurors based on group bias, such as race or ethnicity, violates a defendant's right to a trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution and his right to equal protection under the Fourteenth Amendment to the United States Constitution." (People v. Blacksher (2011) 52 Cal.4th 769, 801; see also People v. Gutierrez (2017) 2 Cal.5th 1150, 1154, 1157 (Gutierrez); Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.)
"A three-step inquiry governs the analysis of Batson/Wheeler claims. 'First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.' " (People v. Winbush (2017) 2 Cal.5th 402, 433 (Winbush); see also Johnson v. California (2005) 545 U.S. 162, 168; Gutierrez, supra, 2 Cal.5th at p. 1158.)
" 'A prima facie case of racial discrimination in the use of peremptory challenges is established if the totality of the relevant facts " 'gives rise to an inference of discriminatory purpose.' " [Citation.]' [Citation.] At step two of the analysis, the prosecutor 'must provide a " 'clear and reasonably specific' explanation of his 'legitimate reasons' for exercising the challenges." [Citation.] "The justification need not support a challenge for cause, and even a 'trivial' reason, if genuine and neutral, will suffice." [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons.' [Citation.] However, 'race-based decisions are not constitutionally tolerable.' " (Winbush, supra, 2 Cal.5th at p. 434.)
" 'At the third stage of the [Batson/Wheeler] inquiry, "the issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy." [Citation.]' [Citation.] Implausible or fantastic justifications offered at the second stage may not be sufficiently credible to pass muster at stage three. [Citation.] 'In assessing credibility, the court draws upon its contemporaneous observations of the voir dire.' [Citation.] This assessment may also take into account 'the court's own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her.' " (Winbush, supra, 2 Cal.5th at p. 434.) "To satisfy herself that an explanation is genuine, the presiding judge must make 'a sincere and reasoned attempt' to evaluate the prosecutor's justification." (Gutierrez, supra, 2 Cal.5th at p. 1159.)
In order to prevail on a Batson/Wheeler motion, appellant was required to show "it was ' "more likely than not that the challenge was improperly motivated." ' " (Gutierrez, supra, 2 Cal.5th at p. 1158.) "We review a trial court's determination regarding the sufficiency of tendered justifications with ' "great restraint." ' [Citation.] We presume an advocate's use of peremptory challenges occurs in a constitutional manner. [Citation.] When a reviewing court addresses the trial court's ruling on a Batson/Wheeler motion, it ordinarily reviews the issue for substantial evidence. [Citation.] A trial court's conclusions are entitled to deference only when the court made a 'sincere and reasoned effort to evaluate the nondiscriminatory justifications offered.' " (Gutierrez, supra, 2 Cal.5th at p. 1159.)
B. No Error as to Prospective Juror J.H.
1. Factual Background
Prospective juror J.H. was a college student studying psychology; he was single, had no children, and had never served as a juror before. He said he could be fair and impartial.
The prosecutor exercised his fifth peremptory challenge to excuse J.H., and defense counsel asserted a Batson/Wheeler challenge. Counsel argued, "The basis for the objection is that the last two challenges . . . were Asian American men. That there are no other Asian American men in the seats for prospective jurors or the jury box. That the factor to consider -- certainly not dispositive -- is that Mr. Tzeng is himself an Asian American man and that the complaining witness in this case is a white woman."
The trial court responded, "I'm going to not find that a prima facie showing has been made. Even though I did not find a prima facie showing, I nevertheless invite the prosecutor to explain the reasons for his choices so that we can have an accurate record." The prosecutor said he relied on "several factors including a combination of [J.H.'s] young age, his lack of any prior jury experience, his statement in the questionnaire which I previously raised an issue regarding . . . about his possibility of being affected by the use of an interpreter. I had previously moved for cause on that basis when we discussed several jurors for cause on that basis. [¶] The fact that while a student not working -- his course of study at this time is psychology. He was soft spoken, did not give more additional answers or expound on his answers in his questionnaire or in his responses to my voir dire. Those would be the bases of my striking him." The prosecutor observed the pool of remaining potential jurors included Asian American men and women and there was "one currently seated that the People have passed on."
The prosecutor's reference to the jury questionnaire related to J.H.'s response to question 8 in the questionnaire, which asked, "Some of the witnesses will be testifying in Mandarin, and you will hear their testimony through the use of an interpreter. You must rely on the translation provided by the interpreter, even if you understand the language spoken by the witnesses. Will the use of an interpreter interfere with your ability to pay attention to and evaluate the testimony of the witnesses?" J.H. responded, "Yes. Due to the wordings are different for some occasions in the translating process, it might [a]ffect me from deciding which is right or wrong."
The court did not evaluate the prosecutor's stated reasons. The court did "confirm that the prosecutor did, during our initial cause conference, discuss some of the people who made comments about understanding Mandarin and how it would affect their ability. I don't remember specifically whether [J.H.] was in that group, but what he wrote in response to [juror questionnaire question] no. 8 is typical of the cause challenge that the prosecutor was mounting in our initial off-the-record discussion in chambers." J.H. was excused and jury selection continued.
2. Analysis
Although the trial court found no prima facie case had been made out as to the use of a peremptory challenge to excuse J.H., the court permitted the prosecutor to make a record of his reasons for challenging the juror. Consequently, "we may assume, without deciding, that defendant did satisfy the first, or prima facie, step . . . . [and] then proceed directly to the second and third steps of the Batson/Wheeler analysis." (People v. Zambrano (2009) 41 Cal.4th 1082, 1106, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; accord People v. Duff (2014) 58 Cal.4th 527, 545.) We reject appellant's claim at the third step, because he has failed to show it "was ' "more likely than not that the challenge was improperly motivated." ' " (Gutierrez, supra, 2 Cal.5th at p. 1158.)
We do not defer to any implied finding by the trial court regarding the sufficiency of the prosecutor's justifications. As the Supreme Court recently explained in Gutierrez, "[a] trial court's conclusions are entitled to deference only when the court made a 'sincere and reasoned effort to evaluate the nondiscriminatory justifications offered.' " (Gutierrez, supra, 2 Cal.5th at p. 1159.) No such reasoned analysis by the trial court appears regarding the prosecutor's reasons to remove J.H. Accordingly, we review the adequacy of the prosecutor's reasons de novo. We note that appellant does not contend that the trial court's failure to issue a reasoned ruling requires this court to reverse.
At the outset, the prosecutor's justifications were not "implausible or fantastic." (Purkett v. Elem (1995) 514 U.S. 765, 768.) Prospective juror J.H.'s youth, marital and parental status, and inexperience were considerations the prosecutor could rely upon in excusing the juror with a peremptory challenge. (People v. Trinh (2014) 59 Cal.4th 216, 242; People v. Lomax (2010) 49 Cal.4th 530, 575.) Even more clear is that J.H.'s response to question 8 in the juror questionnaire provided a legitimate basis to excuse the prospective juror. The prosecutor could reasonably have been uncomfortable with the idea that J.H. might rely on his own translation of the testimony in Mandarin and, therefore, essentially decide the case based on a somewhat different body of evidence than the rest of the jurors. (See Hernandez v. New York (1991) 500 U.S. 352, 361 (plur. opn. of Kennedy, J.) [concern about a juror's "difficulty in accepting the translator's rendition of Spanish-language testimony" was "race-neutral basis" for strike]; cf. id. at pp. 371-372 ["a policy of striking all who speak a given language, without regard to the particular circumstances of the trial or the individual responses of the jurors, may be found by the trial judge to be a pretext for racial discrimination"]; People v. Gonzales (2008) 165 Cal.App.4th 620, 630 [reversing where prosecutor used peremptory challenge against " 'Spanish-speaking' " juror absent any indication juror would have problem accepting interpreter's translation].)
Appellant does not explain why the prosecutor's reliance on J.H.'s response to question 8 is an insufficient basis to reject the Batson/Wheeler challenge. His only response is to point out that the prosecutor did not ask J.H. about that issue during voir dire. He cites Miller-El v. Dretke (2005) 545 U.S. 231 (Miller-El), in which the court stated, "[U]nless [the prosecutor] had an ulterior reason for keeping [the juror] off the jury we think [the prosecutor] would have . . . . cleared up any misunderstanding by asking further questions before getting to the point of exercising a strike." (Id. at p. 244.) There, however, the prosecutor did not accurately characterize the juror's comments about his willingness to impose the death penalty and other jurors made the same types of comments the prosecutor found objectionable. (Ibid.) Miller-El does not stand for the proposition that a prosecutor must question a juror about the basis for a challenge. In the present case, although the prosecutor's failure to question J.H. about his answer to question 8 is a valid factor for us to consider in evaluating the prosecutor's justification, J.H.'s response was unambiguous and could reasonably have been concerning to the prosecutor, even if J.H. promised during voir dire to rely on the court interpreter's translation.
Neither does the Supreme Court's decision in Gutierrez stand for the proposition that a prosecutor must question a juror about the basis for a challenge. In that case, the prosecutor claimed he struck a juror because the juror lived in a city where a prosecution witness was a gang member and the juror was not aware gangs were active in the area. (Gutierrez, supra, 2 Cal.5th at pp. 1160, 1169.) The Supreme Court expressed skepticism about the prosecutor's justification because "[i]t is not evident why a panelist's unawareness of gang activity in [the city] would indicate a bias against a member of a gang based in [the city]." (Id. at p. 1169.) The Court further observed that the prosecutor's questioning of the juror "provides little aid in elucidating the reasoning for this strike. The prosecutor asked no follow-up questions to this prospective juror, certainly none about how she would react if she heard that a member of a [city] gang would testify in this case. The prosecutor's swift termination of individual voir dire of this panelist—even though her responses did not evince a manifest predisposition to disbelieve or dislike [the witness]—at least raises a question as to how interested he was in meaningfully examining whether her unawareness of gang activity in [the city] might cause her to be biased against the witness for the People's case." (Id. at pp. 1169-1170, citing Miller-El, supra, 545 U.S. at p. 246; see also Gutierrez, at p. 1171 ["his brief questioning of this panelist failed to shed light on the nature of his apprehension or otherwise indicate his interest in meaningfully examining the topic, and the matter was far from self-evident"].) In contrast, in the present case it was an "obvious or natural inference" (Gutierrez, supra, 2 Cal.5th at p. 1169) that J.H.'s response to question 8 of the juror questionnaire made him a problematic potential juror. (Cf. id. at p. 1171 ["when it is not self-evident why an advocate would harbor a concern, the question of whether a neutral explanation is genuine and made in good faith becomes more pressing"].)
Appellant argues a comparative juror analysis reveals that other jurors not excused were also young, also lacked experience as jurors, also were unmarried, and also were not parents. (See Gutierrez, supra, 2 Cal.5th at p. 1173 ["When a court undertakes comparative juror analysis, it engages in a comparison between, on the one hand, a challenged panelist, and on the other hand, similarly situated but unchallenged panelists who are not members of the challenged panelist's protected group."].) However, that does not show the prosecutor had discriminatory intent in excusing J.H., given that those other jurors did not also answer question 8 of the jury questionnaire in a problematic way. (See Winbush, supra, 2 Cal.5th at p. 443 ["Although jurors need not be completely identical for a comparison to be probative [citation], 'they must be materially similar in the respects significant to the prosecutor's stated basis for the challenge.' "].) We also reject appellant's suggestion that his comparative analysis shows that some of the prosecutor's reasons were "pretextual." (See Snyder v. Louisiana (2008) 552 U.S. 472, 485 ["The prosecution's proffer of this pretextual explanation naturally gives rise to an inference of discriminatory intent."].) The prosecutor did not suggest that any of the characteristics that J.H. shared with others (youth, lack of experience as a juror, etc.) was alone a sufficient basis for his peremptory challenge. To the contrary, he said he relied on a "combination" of "several factors." Appellant cites no authority that, where a prosecutor lists many reasons for a peremptory challenge, each reason that references a characteristic possessed by jurors that were not excused must be treated as pretextual. Such a rule would ignore the reality that it is often a combination of characteristics that motivates a decision to use a peremptory challenge. (See People v. Jones (2011) 51 Cal.4th 346, 365 ["A party concerned about one factor need not challenge every prospective juror to whom that concern applies in order to legitimately challenge any of them."]; People v. Lenix (2008) 44 Cal.4th 602, 624 ["Two panelists might give a similar answer on a given point. Yet the risk posed by one panelist might be offset by other answers, behavior, attitudes or experiences that make one juror, on balance, more or less desirable."]; People v. Gray (2005) 37 Cal.4th 168, 189 ["a party may decide to excuse a prospective juror for a variety of reasons, finding no single characteristic dispositive"].)
Appellant has not shown the trial court erred in denying the Batson/Wheeler motion as to prospective juror J.H.
B. No Error as to Prospective Juror P.N.
1. Factual Background
Prospective juror P.N. worked for the post office, was married, and had two children. He gave an ambiguous explanation regarding his prior jury service, stating "I was selected as - look like this before, but it was - after they start the trial, it was dismissed." During voir dire, the prosecutor asked another prospective juror if she could find a person guilty of a crime even if she heard other evidence of his good character. After receiving an affirmative response, the prosecutor asked P.N., "Would that be the same for you, Mr. [N.]?" P.N. said, "I didn't pay attention. Can you repeat the question?"
Later, the prosecutor asked the prospective jurors if they would assume a "negative intent" on the part of someone who goes to a massage parlor. When the question was directed to P.N., he said, "What's your question again?" The prosecutor and P.N. spoke back and forth, but P.N. appeared unable to fully understand or clearly answer the prosecutor's questions.
Subsequently, the prosecutor asked P.N., "Is there any part of you that worries that you don't feel comfortable engaging in this process?" P.N. responded, "I mean, I don't want to be here," and further elaborated, "I don't really enjoy jury service so." The prosecutor exercised his seventh peremptory challenge to excuse P.N. Defense counsel made another Batson/Wheeler motion, arguing, "[P.N.] was the third Asian American man that [the prosecutor] used a peremptory to strike. . . . In terms of the remaining jurors at the time . . . , there were no other Asian American men potential jurors in the panel. And I believe based on the disproportionate use of his challenges to strike Asian American men, there is a sufficient showing for a prima facie case."
The trial court found a prima facie case, "given the fact that this was the third person removed from that cognizable group." In response, the prosecutor pointed out that only 3 of his ten peremptory challenges had been directed at Asian American men. In explaining the challenge to P.N., the prosecutor said "[t]he next jurors seemed more appropriate for the People based on their characteristics and answers." In particular, P.N. several times "[n]eeded to have the question repeated--both because I think he didn't understand which gave me concern about his ability to understand particularly in the midst of a trial with difficult questioning and scientific evidence, as well as his statement that he wasn't paying attention." P.N. also said he did not want to be there, and he "had no prior jury experience" and "stated he was dismissed from a jury before." Finally, the prosecutor commented, "the person that was next in line and who took [P.N.'s] seat . . . had prior juror experience and had reached a verdict."
The trial court denied the Batson/Wheeler motion, stating: "I'm satisfied that there are objective race-neutral reasons for striking [P.N.]. I will note for the record that I too observed his apparent ability to--issues with his apparent ability to understand the questions that he was asked, asking to have repeated were not just the ones where the prosecutor was facing away from him. He was asking for things to be repeated when the prosecutor was speaking directly to him. [¶] And the statement that he made that he wasn't paying attention and his general demeanor along with his statement that he didn't want to be here even though he was going to be paid during the time that he was here did strike me as odd. . . . [¶] The prosecutor's other reasons including the fact that he was dismissed from a prior jury and that he had no prior experience and the next juror seemed more appropriate all do resonate with me based on what I've heard here in the courtroom so the motion is denied."
2. Analysis
Appellant contends the prosecutor's reasons for excusing P.N. were "pretextual." He argues the prosecutor falsely claimed P.N. lacked experience as a juror. In fact, both the prosecutor and trial court understood P.N. to say he was dismissed as a juror, although P.N.'s statement was ambiguous. In any event, given the ambiguity and that the trial court shared the same understanding as the prosecutor, any misstatement does not demonstrate pretext. The prosecutor observed that the next prospective juror "had prior juror experience and had reached a verdict," and the prosecutor could reasonably conclude the experience of reaching a verdict is more meaningful than whatever experience P.N. had.
Appellant also focuses on the prosecutor's comment that the "next jurors seemed more appropriate for the People based on their characteristics and answers." Appellant suggests, "it is very possible that [the prosecutor] meant that these jurors were 'more appropriate' because they were not Asian-American." But appellant ignores that the prosecutor immediately clarified his comment, explaining that P.N. seemed inappropriate because he either could not understand everything being said or because he was not paying attention. The trial court agreed P.N. appeared to have difficulty understanding the questions he was asked. Those were appropriate considerations in exercising a peremptory challenge. (People v. Jurado (2006) 38 Cal.4th 72, 107 [a juror's "difficulty understanding spoken English" was a "permissible, neutral, and credible" basis for a peremptory challenge]; People v. Reynoso (2003) 31 Cal.4th 903, 925 [juror "appeared to be inattentive and uninvolved in the jury selection process"]; People v. Turner (1994) 8 Cal.4th 137, 169, disapproved on another ground by People v. Griffin (2004) 33 Cal.4th 536 (2004) ["Of course, where a prosecutor's concern for a juror's ability to understand is supported by the record, it is a proper basis for challenge"]; People v. Barber (1988) 200 Cal.App.3d 378, 398 ["the record arguably supports the prosecutor's expressed concern regarding [the juror's] ability to comprehend legal principles"].)
Substantial evidence supports the trial court's finding appellant failed to prove purposeful discrimination as to prospective juror P.N.
II. Appellant Has Not Demonstrated Prosecutorial Misconduct
Appellant contends the prosecutor engaged in misconduct during his rebuttal argument. We disagree.
A. Factual Background
In a motion in limine, respondent sought to exclude the victim Ms. V.'s medical records as inadmissible to show evidence of prior allegations of sexual assault, prior suicide attempts, or prior substance abuse. Respondent also objected on various grounds to the proposed testimony of defense expert Dr. Evered regarding BPD, including that "[t]he testimony of Dr. Evered is pure speculation as to the potential effects of the disorder on the victim." In response, appellant argued generally that "[Ms. V.] herself describes problems with her memory and links these problems to her mental disorder. Therefore, [Ms. V.'s] own statements regarding her diagnosis, symptoms and treatment for [BPD] as well as her treatment for the mental condition at the time of the incident are relevant to her credibility and necessitate additional expert testimony to assist the trier of fact to understand [BPD]." Appellant sought to elicit that information through cross-examination and expert testimony, but did not seek admission of the "actual psychiatric records." Appellant accepted limitations on evidence of prior self-harm and past sexual conduct, and only sought "limited cross-examination on medical cannabis and pharmacological drugs."
At the hearing on the motion in limine, the trial court and the parties focused on the proper scope of the expert testimony. Respondent argued Dr. Evered should not be permitted to rely upon the medical records in testifying that Ms. V. suffered from paranoid ideation because her statements in the records did not support such a conclusion. In response, appellant's counsel emphasized, "Again, we're talking about a situation where the records are being used as foundation and they're not being introduced into evidence." The trial court largely ruled in respondent's favor, allowing Dr. Evered to testify "about the way that this diagnosis affects those key factors about ability to perceive, recollect, and testify," but prohibiting conjecture by the expert based on "cryptic entries" in Ms. V.'s medical records.
The parties cite to no other rulings regarding respondent's motion in limine.
Following the close of evidence, in the rebuttal portion of his closing argument, the prosecutor made reference to the absence of medical records in evidence to support any suggestion that Ms. V. engaged in a consensual sexual encounter with appellant during a black out. He argued, "And there's never . . . in anything she said that's in evidence or any of her answers to questions did she say I may have blacked out and I got up and had sex with this guy consensually and randomly. That's the implication, but that's not in evidence. And what do you have in evidence from her records? [¶] You have the fact that there are records, and you have the fact that they involve her speaking to medical personnel. You don't know anything more about those records. Those are not in evidence like the lab records are in evidence."
Defense counsel objected to the argument on the basis that the prosecutor "objected to them being in evidence," but the trial court overruled the objection. The prosecutor continued, "Those are not in evidence and therefore have not been vetted by this Court to be credible and reliable to you. Certainly there are records. That's in evidence, but all you know about them is that they contain what she has told people. You have no evidence that there's anything like brain scans or imaging or anything like the things that Dr. Evered works with. And were there? The defense has the power of the subpoena just as the People do."
B. Analysis
On appeal, appellant contends it was misconduct for the prosecutor to focus on the absence of medical records supporting the defense theory of the case, because respondent had successfully moved to exclude aspects of Ms. V.'s records. But appellant's claim fails because respondent's motion in limine was not as broad as appellant suggests. Respondent did not argue the victim's medical records were inadmissible for all purposes. Instead, respondent argued the records were inadmissible to the extent they reflected evidence of prior allegations of sexual assault, prior suicide attempts, or prior substance abuse. And at the hearing on the motion, respondent objected to Dr. Evered referring to medical records to suggest Ms. V. was suffering from paranoid ideation, because the records did not actually support that conclusion.
In his rebuttal, the prosecutor argued there were no medical records in evidence supporting the defense's theory of the case. Appellant had not sought to admit any such records and respondent had not sought a ruling excluding the admission of any such evidence—apparently because, as the prosecutor suggested in his closing argument, no such evidence existed in the medical records. Accordingly, appellant is misplaced in relying on the proposition that "California courts have uniformly prevented a prosecutor from arguing a lack of evidence on a certain point if the prosecutor has prevented the evidence from being introduced." Assuming that is true, it is inapplicable here because the prosecutor did not prevent the evidence at issue from being introduced. (Cf. People v. Daggett (1990) 225 Cal.App.3d 751, 758 ["The prosecutor asked the jurors to draw an inference that they might not have drawn if they had heard the evidence the judge had excluded. He, therefore, unfairly took advantage of the judge's ruling."]; People v. Varona (1983) 143 Cal.App.3d 566, 569 ["misconduct for the prosecutor to argue that there was no proof that the woman was a prostitute when he had, by his objections, prevented the defense from proving that fact"].) Accordingly, appellant's claim of prosecutorial misconduct fails.
III. The Trial Court Erred in Part in Awarding Restitution
Penal Code section 1202.4, subdivision (f), states, "[I]n every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court." In the present case, following a hearing, the trial court awarded Ms. V. restitution in the amount of $20,750, representing $1,750 for massage school tuition, $5,000 for future counseling expenses, $13,000 for lost wages, and $1,000 for past medical services. On appeal, appellant contends there was insufficient evidence supporting the amounts awarded for future counseling and for lost wages.
" 'Generally speaking, restitution awards are vested in the trial court's discretion and will be disturbed on appeal only where an abuse of discretion appears. [Citation.]' [Citation.] ' " 'When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.' " [Citations.]' [Citation.] 'The court abuses its discretion when it acts contrary to law [citation] or fails to "use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious." [Citation.]' [Citation.] When, as here, the gist of the appellant's argument is that the evidence before the trial court was insufficient to establish the amount awarded, we review for substantial evidence." (In re Travis J. (2013) 222 Cal.App.4th 187, 202-203.)
As to lost wages, appellant challenges the award because the starting date is May 2013, more than 3 months after the incident. However, Ms. V. explained in her Restitution Request Form that she took disability leave "for a few months" after the incident and then unsuccessfully attempted to return to work. She explained her request for $13,000 in lost wages was based on her salary of $16.50 per hour at 40 hours a week for 20 weeks (5 months). The trial court accepted the victim's estimate of lost wages and appellant has not shown it was inherently incredible. The trial court did not err as to the award for lost wages.
Appellant does not dispute on appeal that the trial court could rely on Ms. V.'s Restitution Request Form. --------
On the other hand, there is no basis for the trial court's award of $5,000 in future counseling expenses. Ms. V.'s Victim Impact Statement, attached to her Restitution Request Form, clearly articulated the impact of the crime on her mental health, including causing the termination of a romantic relationship and interfering with her ability to be sexual in her current relationship. She wrote that appellant stole her "profession" and her "sexuality," and that he stole her "dignity and confidence and comfort within" herself. However, there is no support for the amount awarded by the trial court for future counseling. Ms. V.'s restitution request form indicated she had incurred over $1,000 in therapy co-pays and therapy was "ongoing." That form was completed in March 2016, over three years after the January 2013 incident. Accordingly, the information on the form supported a finding that therapy cost the victim $1,000 every 3 years; at that rate, the trial court's award of $5,000 would be sufficient for 15 years of future therapy. Because there is no support for a finding the victim required 15 more years of therapy due to the incident, insufficient evidence supports the restitution award as it relates to future counseling expenses. (See In re Travis J., supra, 222 Cal.App.4th at p. 204 [defendant does not bear burden of disproving restitution claim until basis for amount of claim is provided]; People v. Harvest (2000) 84 Cal.App.4th 641, 653 [restitution award for burial expenses reversed when only basis for award was reference in probation officer's report, which "cannot take the place of evidence"].) Accordingly, we will reverse the restitution order as to future counseling expenses and remand the matter for further proceedings to determine a proper award in that respect. (In re Travis J., at p. 204.)
DISPOSITION
The trial court's restitution order is reversed to the extent it awards the victim $5,000 for future counseling expenses, and the matter is remanded for further proceedings consistent with this opinion. Otherwise, the judgment is affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.