Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 04CF3689, William R. Froeberg, Judge.
Arthur Martin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury convicted defendant Peter Nong Le of two counts of first degree premeditated murder (Pen. Code § 187, subd. (a); all statutory citations are to the Penal Code unless noted) and found true a special circumstance for multiple murders (§ 190.2, subd. (a)(3)), and an enhancement for using a firearm (§ 12022.53, subd. (d)). A jury subsequently found defendant was sane at the time of the killings.
Defendant contends the trial court abused its discretion at the guilt phase of his trial by precluding a defense neuropsychologist from testifying to defendant’s out of court statements describing his traumatic experiences and injuries as a prisoner during the Vietnam War. Defendant also claims the trial court abused its discretion at the sanity phase by excluding evidence of his state of mind before the shootings when defendant’s brother warned him that he would suffer incarceration for his involvement in a tragic incident. For the reasons expressed below, we affirm the judgment.
I
Factual and Procedural Background
In December 2004, defendant, recently arrived from Vietnam, temporarily resided at the Santa Ana home occupied by his elderly parents, his brother Howard, Howard’s girlfriend Tuyet Cu, and Tuyet’s teenage daughter Jennifer Cu. Tuyet received money from a social services agency to care for defendant’s mother.
Around noon on December 14, defendant’s parents returned home after his mother’s dialysis treatment. Upon their return, defendant accosted his father, tied up his legs with a zip tie and warned his parents to stay in the living room and if they yelled or moved he would shoot them. Sometime later, the father heard gunshots and women screaming. Defendant returned to the living room and left a gun. His father grabbed the gun and hid it under a blanket so defendant would not find it.
The father testified he never heard defendant and Tuyet argue, although he told a police officer they had argued the previous evening because defendant had not cleaned the bathroom after using it. Tuyet thought he was dirty and did not want him staying at the house. The father also informed the officer that defendant threatened to teach Tuyet and her daughter a lesson.
At 3:25 p.m., defendant called 911 and told the operator, “I did do something very terrible, I want to surrender to the police officer, okay.” Asked what he did, defendant replied “I will go outside and lay down on the ground for them to arrest me. [¶]... [¶] Quick, very quick.”
As officers arrived, defendant walked into the street with his hands over his head. He stopped in front of the patrol car, and dropped to the ground. He acknowledged calling the police, and confessed he had done something “‘very bad’” and that “‘I shot her.’” Defendant asked to surrender. He appeared alternately calm, crying, and agitated.
Before entering, officers directed everyone to leave the house. Defendant’s elderly mother exited with some difficulty. The police found defendant’s father in the living room with his feet still zip-tied. They found Jennifer’s body in the kitchen with gunshot entry wounds to her right temple, right collar bone, and left hand. Tuyet’s body lay against a wall in the backyard; she had gunshot wounds in the upper chest area, fired from a distance of about two feet. Officers found a silver revolver on the kitchen table, and defendant’s father showed them the semi-automatic rifle in the living room. Investigators also found three loaded magazines for the rifle in the living room, a bag containing food, ammunition and defendant’s passport, a taped pillow apparently for use as a silencer, and two gloves.
While officers drove defendant to the police station, he explained that Tuyet repeatedly called him bad names, calling him an “animal” or “dog” and an “asshole.” Defendant also overheard her say “bad things” about his mother and defendant felt she did not take good care of her. On the morning of the killings, defendant awoke with a headache. Tuyet berated him, saying he should move out of the house because he was not helping anyone. He grew angrier over the course of the day and decided to kill her. He retrieved his rifle and set off to find Tuyet. He shot Jennifer in the kitchen thinking she was Tuyet, explaining he did not mean to kill her and felt bad about it, but he was blinded by rage. He found Tuyet in the backyard and shot her. After the shootings, he told his father he would call the police and provoke a suicidal shootout. He bound his father’s legs to prevent him from running outside and getting shot. His father talked him out of the shootout plan, reminding defendant his brother was a police officer. Defendant apologized for shooting the women, but Tuyet provoked him by treating his parents badly and he could not take it anymore.
A neuropsychologist, Charles Hinkin, administered several psychological exams to defendant in November 2005. Defendant functioned in the abnormal or impaired range in the categories of problem solving, divided attention multi-tasking, and nonverbal learning and memory. He also displayed clinically elevated levels of anxiety, interpersonal insensitivity, depression, hostility, paranoid ideation, suspiciousness, and delusions. A PET scan revealed reduced functioning in areas of defendant’s brain consistent with his testing abnormalities. Based on the available data, including neuroimaging, Hinkin’s interview of, and history from defendant, and the testing, Hinkin opined defendant suffered from neurocognitive dysfunction, or abnormality in brain functioning, with two possible causes: traumatic brain injury and posttraumatic stress disorder (PTSD). PTSD is a condition arising in individuals exposed to severe trauma, such as combat, torture, violence or incarceration as a prisoner of war. Hinkin explained chronic prolonged stress can result in brain atrophy, and the evidence suggested “this has been the case with” defendant. Hinkin found no evidence to suggest defendant feigned or manipulated his responses.
At the sanity phase, defendant’s father testified defendant, born in 1944, was the oldest of 11 children. Defendant attended a military academy, and served in the South Vietnamese army from around 1960 to 1975. William Reeder, Jr., a retired United States Army colonel, testified he spent about a month with defendant when both were prisoners of war (POW) in Vietnam and they made a forced march along the Ho Chi Minh trail.
Defendant’s brother Hoi testified defendant became a POW in 1971. Upon his release a few years later, defendant’s attitude and behavior became erratic. After leaving a reeducation camp, defendant left his wife and children, moved to Thailand, and married a Thai woman. Defendant later moved to the United States, but could not keep a job and his siblings shunned him for leaving his Vietnamese family. Defendant declined to participate in family activities and ultimately returned to Vietnam. As of 1992, defendant was not “normal.” He did not interact with the family, sat alone, appeared distant and unhappy and rarely talked. Although he returned to the United States, his family pooled their resources to send him back to Vietnam. After defendant returned in November 2004, Hoi advised him to find work, go to school, and try to get along better with the family. The family discussed sending him back to Vietnam again.
Defendant complained to Hoi that Tuyet cursed and scolded him for no reason, although Hoi never witnessed this. On December 14 around 9:00 a.m., defendant left Hoi a message to call him back immediately. Defendant called back around 10:00 a.m., and defendant complained Tuyet was yelling at him. Hoi could hear her yelling in the background, but could not hear what she was saying. Defendant sounded upset and frustrated. Hoi told him to calm down, leave the house, and go read at the library. Defendant called a third time around 11:30, and this time “[h]is voice was calm, was cool.”
Hinkin testified at the sanity phase concerning his neuropsychological evaluation. He believed defendant’s neurocognitive problems and PTSD existed before the shootings because there was no record of later triggering event. Dr. Paul Leung, a psychiatrist specializing in treating immigrants and refugees from Southeast Asia, agreed with Hinkin’s opinion defendant suffered from PTSD. After performing a psychodiagnostic exam of defendant, Leung believed defendant’s PTSD was chronic and severe, involving auditory hallucinations, including hyper vigilance and delusions. Hyper vigilance induces the person to misinterpret his surroundings and become overly suspicious and extremely sensitive. Leung noted that after defendant’s arrest, doctors at the jail prescribed two antipsychotic drugs and antidepressants to manage defendant’s symptoms.
Dr. Nancy Kaser-Boyd, a psychologist, performed an assessment of defendant’s state of mind at the time of the shootings. She opined he suffered from chronic PTSD with psychotic features and met the legal criteria of legal insanity at the time of the shootings. Defendant believed the government was tracking him and making his life difficult. He feared arrest and torture, and collected guns because he constantly felt threatened. His feelings of persecution prompted “a delusional belief that Tuyet... was going to harm him, and that propelled his actions. So he had a delusional belief in the need for self-defense.” Contacting the police showed that defendant knew his actions were legally wrong, but he believed he was morally justified in protecting himself.
The prosecution called Dr. Veronica Thomas, a psychologist, who also had examined and evaluated defendant. She agreed defendant suffered from chronic PTSD, but opined he understood the nature and quality of what he did and that the shootings were wrong. She agreed a grossly misperceived need for self-defense motivated defendant’s actions, but she did not believe a psychosis caused defendant’s misperception, and believed defendant was in touch with reality.
Following a trial in February 2008, a jury convicted defendant as noted above. After a retrial of the sanity issue in January 2009, a jury found him sane. In February 2009, the court sentenced defendant to concurrent sentences of life without parole for the murders, plus 25 years-to-life for the gun enhancements.
II
Discussion
A.The Trial Court Did Not Abuse Its Discretion at the Guilt Phase by Precluding Defendant’s Neuropsychologist from Testifying to Defendant’s Hearsay Statements
Defendant claims the trial court abused its discretion by precluding neuropsychologist Hinkin from testifying concerning defendant’s self-reported history of traumatic experiences as a prisoner of war in Vietnam, including being struck multiple times in the head with a rifle butt. We disagree.
The trial court excluded the testimony, explaining that while experts may rely on hearsay in forming opinions, “the offering party [does not have] free license to introduce otherwise inadmissible hearsay.” In its pretrial ruling, the trial court allowed the expert to explain defendant’s test results and the expert’s conclusions, but the court precluded the expert from testifying “on [defendant’s] behalf” about defendant’s asserted war experiences as “far more prejudicial than probative” under Evidence Code section 352.
Evidence Code section 352 permits the trial court to exclude relevant evidence “if its probative value is substantially outweighed by the probability that its admission will... (b) create a substantial danger of prejudice, of confusing the issues, or of misleading the jury.” We may not disturb the trial court’s ruling absent a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
An expert’s opinion based on a defendant’s hearsay statements is certainly relevant. It is well established, however, that the trial court may, within its sound discretion, exclude the hearsay basis of an expert’s opinion. (People v. Nicolaus (1991) 54 Cal.3d 551, 582.) “‘The rule rests on the rationale that while an expert may give reasons on direct examination for his opinions, including the matters considered in forming them, he may not under the guise of reasons bring before the jury incompetent hearsay evidence....’” (People v. Coleman (1985) 38 Cal.3d 69, 92.)
People v. Pollock (2004) 32 Cal.4th 1153 illustrates the principle. There, the trial court excluded testimony by the defendant’s drug addiction expert concerning how the “‘binge cycle or pattern of use and abuse appl[ied] specifically to [defendant] in the days’” surrounding the murders. The Supreme Court concluded the “trial court applied well-established state law principles governing expert testimony. ‘When expert opinion is offered, much must be left to the trial court’s discretion.’ [Citation.] Although an expert may base an opinion on hearsay, the trial court may exclude from the expert’s testimony ‘any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value.’ [Citation.] [¶] Here, the trial court acted within its discretion in preventing [the expert] from expressing an opinion on whether defendant’s conduct immediately before, during, and after the charged crimes was consistent with the binge pattern of crack cocaine use. That opinion would necessarily be based in large part on defendant’s hearsay statements to [the expert] during an interview four years after the events in question.” (Id. at p. 1172, italics added.) The court held that “[t]o avoid putting this potentially self-serving and unreliable hearsay before the jury, without defendant ever having testified and submitted to cross-examination, ” the trial court could properly require the defense to proceed by the use of hypothetical questions. (Ibid.)
Relying on People v. Valdez (1997) 58 Cal.App.4th 494, 510-511, defendant contends the trial court abused its discretion by failing to admit defendant’s statements subject to a limiting instruction directing the jury not to consider his statements for the truth of the matters asserted, but only to show the basis of the expert’s opinion. (Id. at pp. 509-510.) But as Valdez observed, it is for the trial court to assess the probative value of inadmissible material relied upon by an expert witness against the risk the jury might improperly consider the material as independent proof of the facts recited. (Id. at p. 510; see People v. Gardeley (1996) 14 Cal.4th 605, 617-619.) Here, the trial court permitted the expert to testify he based his opinion defendant suffered from PTSD, in part, on his interview with defendant. But the court acted within its discretion in precluding the expert from testifying about specific details, including that defendant told him he had suffered trauma as a prisoner of war, because the jury might improperly consider this matter as true.
Defendant argues the court should have admitted the evidence because “there was no reasonable dispute [defendant] had in fact been a prisoner of war in Vietnam. As the prosecutor knew before trial, [defendant’s] family members and Colonel Reeder corroborated [defendant’s] history in that regard.” But at the time Hinkin testified, defendant had not introduced any evidence of defendant’s Vietnam-era trauma. The trial court recognized Hinkin could rely on defendant’s history and background to form his opinions. Indeed, the trial court could have exercised its discretion to permit Hinkin to introduce defendant’s out of court statements. But defendant cannot show here that the court’s failure to do so was an arbitrary or absurd decision.
Without citation to authority, defendant argues that even if the court did not abuse its discretion by excluding the hearsay basis of Hinkin’s opinion, the prosecutor “opened the door” to defendant’s statements when he asked Hinkin on cross-examination if defendant’s postarrest MRI was normal. Hinkin agreed it was. The prosecutor then asked if Hinkin had “information of an [MRI] that was done before [defendant’s arrest] that came” back normal. Hinkin responded he did not have that information.
Defense counsel argued the prosecutor had “opened the door to a [complete] discussion of” defendant’s history because the prosecutor based his reference to an earlier MRI solely on the personal history defendant gave Hinkin. The court ruled the prosecutor’s question did not allow defendant to broach the subject and instructed the jury to disregard any reference to an MRI other than the one performed in the current case after defendant’s arrest. Given the court’s direction to the jury, there was no basis to question Hinkin about defendant’s history.
Finally, defendant argues the court violated defendant’s due process right to present a defense. (Crane v. Kentucky (1986) 476 U.S. 683, 690; Chambers v. Mississippi (1973) 410 U.S. 284, 302.) The court did not preclude defendant from establishing he had PTSD and arguing he did not possess the mental state required for premeditated murder. Defendant does not argue he had a federal constitutional right to establish a triggering traumatic event through inadmissible hearsay. The trial court did not violate defendant’s constitutional right to present a defense by applying Evidence Code section 352 to exclude defendant’s out of court statements to Hinkin.
B. The Trial Court Did Not Abuse Its Discretion at the Sanity Phase by Excluding The Pretrial Statements of Defendant’s Brother
As noted above, defendant’s brother Hoi Le testified defendant placed several calls to him on the morning of the killings. On cross-examination, the prosecutor asked Hoi, after the court overruled defendant’s relevance objection, how he made a living. Hoi stated he was a fortune teller.
Defense counsel subsequently advised the court he wanted to recall Hoi to testify about statements Hoi made to defendant five days before the shooting, which psychologist Kaser-Boyd described in her report. Hoi allegedly told defendant five days before the shooting that defendant’s “horoscopes had foretold that something terrible was going to happen that” might result in defendant going to jail or prison. Counsel noted Hoi had previously testified defendant sounded extremely agitated during the phone calls on the day of the shooting, and therefore the testimony established defendant’s state of mind and his thought process “on the day of the shooting....” Apparently believing defendant sought to introduce his statement to Kaser-Boyd, the court ruled the statements were inadmissible because defendant’s statements to her lacked trustworthiness and defendant was available to testify.
Defendant correctly notes the court apparently misunderstood “the defense offer of proof and analyz[ed] the statement as if it was made by [defendant].” Defendant argues “Hoi’s statement was clearly admissible through Hoi. It would not have been hearsay, as it was not being proffered for the truth of the predictions, and it would have been probative of [defendant’s] state of mind and conduct before and after the shootings, as well as his statements to police when they arrested him.”
Relying on People v. Braxton (2004) 34 Cal.4th 798, 813, the Attorney General first asserts defendant forfeited the claim because he made no effort to correct the court’s misperception and press for a ruling on his request to recall Hoi. We disagree. In Braxton, the appellate court held that when a trial court, through inadvertence or neglect, fails to rule on an objection, the objecting party’s failure to obtain a ruling results in a forfeiture of the issue on appeal. (Ibid.) Here, unlike Braxton, the court did not refuse or neglect to make an evidentiary ruling. We therefore conclude defendant did not forfeit this claim.
In his reply brief, defendant argues defense counsel’s arguable failure “to correct the court’s misunderstanding” lacked a tactical basis and constituted ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668.) We need not address this issue.
We fail to see how Hoi’s future prediction defendant would end up in jail, by itself, has any bearing on the issue of defendant’s sanity. Absent evidence describing defendant’s thought process when hearing this information, the evidence is irrelevant. In any event, any conceivable error did not result in a miscarriage of justice. (People v. Watson (1956) 46 Cal.2d 818, 836.) Defendant argues “it would have been probative of [defendant’s] state of mind and conduct before and after the shootings, as well as his statements to police when they arrested him, ” and “there is more than an abstract possibility one or more jurors would have found [defendant] was not sane when he shot the victims.” But defendant does not explain how it would have been significantly probative of the issues at the sanity phase. Those issues included whether at the time of the shootings defendant was incapable of knowing or understanding the nature and quality of his acts, and of distinguishing right from wrong. (§ 25, subd. (b); People v. Skinner (1985) 39 Cal.3d 765, 774.) Even assuming Hoi’s proposed testimony provided a reason why defendant might have called Hoi several times on the morning of the shootings, or suggested defendant may have believed he was fated to commit the shootings, the evidence did not substantially advance his claim he did not know the killings were wrong.
III
Disposition
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.