Opinion
G054976
09-06-2018
THE PEOPLE, Plaintiff and Respondent, v. NGA THUY TRAN, Defendant and Appellant.
Kenneth A. Reed, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14HF2390.) OPINION Appeal from a judgment of the Superior Court of Orange County, Denise de Bellefeuille, Judge. (Retired judge of the Santa Barbara Super.Ct. assigned by the Chief Justice pursuant to art. VI, §6 of the Cal. Const.) Affirmed. Kenneth A. Reed, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Nga Thuy Tran of four counts of pimping (deriving income from the prostitution of Jane Does One through Four), and one count of pandering (procuring Jane Doe Four for the purpose of prostitution). The trial court imposed a prison sentence of five years and four months.
Defendant argues that the trial court abused its discretion in two evidentiary rulings (the exclusion and admission of evidence). Defendant also argues that the prosecution failed to timely disclose exculpatory evidence.
We find no prejudicial errors and affirm the judgment.
I
FACTS AND PROCEDURAL BACKGROUND
Defendant advertised massage services on the Internet. Over a three-year period, vice officers conducted undercover sting operations and other investigations at defendant's purported massage parlors located in Irvine, Lake Forest, and Stanton.
September 2011, Irvine
On September 27, 2011, Irvine Police Sergeant Matt McLaughlin responded via e-mail to an online advertisement for massage services. McLaughlin sent a series of e-mails to a person identifying herself as Sandra N., who sent McLaughlin an address of an apartment located in Irvine.
The following day, Officer Eric Stevens went to the Irvine apartment wearing normal street clothes. Defendant let Stevens into the home and identified herself as Sandy. After leading Stevens to a back bedroom, defendant asked Stevens if he wanted a massage and if he wanted "full service." Stevens asked defendant what "full service" entailed. Defendant made a gesture with her hands indicating sexual intercourse and said the word "sex."
Stevens gave defendant $200; she then introduced him to Jane Doe One. After Stevens had taken off his clothes and laid on a massage table, Jane Doe One touched his genitals. Stevens then communicated a "bust signal" to other officers who were secretly listening in on the conversation. Police then entered the apartment and conducted a search, finding 297 condoms, a pay-owe sheet, and various documents in defendant's name. On a laptop computer, police found the advertisement McLaughlin had responded to, as well as his e-mail communications with defendant.
May 2014, Lake Forest
On May 21, 2014, Orange County Sheriff's Department Investigator Allan Villanueva entered defendant's business located in Lake Forest. Villanueva had received anonymous information that an illegal massage parlor was operating at the location; he had also viewed defendant's ads, which were on Internet sites that routinely advertise illegal prostitution businesses. Villanueva entered the location in an undercover capacity and spoke to defendant.
While speaking to defendant, Villanueva saw Jane Doe Two. Villanueva told defendant, "[o]h, she's cute." Villanueva asked if Jane Doe Two was working and defendant responded, "'Yeah, she's very pretty, and it's $60 for one girl.'" Villanueva also saw Jane Doe Three. Villanueva asked how much it would cost for a two-girl massage; defendant said $120. Villanueva went outside under the pretense of getting more cash, but returned with Investigator Bradley Fowler and other officers who then searched the business.
July 2014, Stanton
On July 22, 2014, after arranging a massage appointment online, Fowler entered defendant's business located in Stanton wearing a body wire. Villanueva was waiting outside and eventually entered the building after receiving a bust signal from Fowler. Villanueva came into contact with Jane Doe Four, as well as defendant's mother.
Fowler did not testify during the jury trial.
September 2014, Lake Forest
On September 2, 2014, Investigator Rene DeLaRosa entered the Lake Forest location with a listening device and was greeted by defendant, who asked him if he wanted a massage. After DeLaRosa gave defendant $60, she took him to a room where he undressed and laid down on a massage table. Jane Doe Four then entered the room and started running her fingers all over DeLaRosa's body, eventually touching his penis. DeLaRosa asked Jane Doe Four how much it would cost for "full service." Jane Doe Four said $120, at which time DeLaRosa communicated a bust signal to other officers. The officers conducted searches of both the Stanton and Lake Forest locations.
Court Proceedings
Jane Doe Four testified at defendant's jury trial under a grant of immunity. Jane Doe Four began working for defendant after responding to an online advertisement for "a massage training job." On her first day, without any formal instruction, Jane Doe Four massaged a man who began touching her. Jane Doe Four felt uncomfortable and left, but came back the following day after defendant had texted her and asked her to return.
Jane Doe Four worked for defendant for approximately three months at the Lake Forest location and once at the Stanton location (July 22, 2014). Defendant routinely collected $60 from men as they entered the business; Jane Doe Four would then charge an additional $60 for a "hand job." At some point, defendant encouraged Jane Doe Four "to start doing full service." Jane Doe Four understood "full service" to mean "sex." Defendant told Jane Doe Four that she could "make more money." Jane Doe Four then began engaging in sexual intercourse in exchange for money.
The jury convicted defendant of four counts of pimping (deriving income from the prostitution of Jane Does One through Four), and one count of pandering (procuring Jane Doe Four for the purpose of prostitution). (Pen. Code, §§ 266h, subd. (a), 266i, subd. (a)(1).) The trial court sentenced defendant to five years, four months in state prison.
II
DISCUSSION
Defendant argues that the trial court abused its discretion in two evidentiary rulings (the exclusion and admission of evidence). Defendant also argues that the prosecution failed to timely disclose exculpatory evidence before trial.
We shall address each contention in turn. A. The Exclusion of Evidence
Defendant argues that the trial court abused its discretion by "denying the defense . . . motion to introduce Evidence concerning the credibility of [Fowler] regarding the investigation of this case." (Boldfacing omitted.) We find no abuse of the court's discretion.
"'Relevant evidence' means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Generally, "all relevant evidence is admissible." (§ 351.) However, a "court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352, italics added.)
Further undesignated statutory references are to the Evidence Code.
A trial court's exercise of its discretion will be upheld on appeal unless it is shown that the court acted "'"in an arbitrary, capricious or patently absurd manner."'" (People v. Williams (2008) 43 Cal.4th 584, 634-635.) A judgment cannot be reversed because of the exclusion of evidence unless the defendant has shown a miscarriage of justice. (§ 354.) "'[A] "miscarriage of justice" should be declared only when the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'" (People v. Richardson (2008) 43 Cal.4th 959, 1001, quoting People v. Watson (1956) 46 Cal.2d 818, 836.)
In this case, during a pretrial hearing, the prosecutor told the court that she had "learned over the lunch hour" that defendant "made an allegation to the Orange County Sheriff Department in 2015 against Investigator Fowler, claiming that he stole $10,000 from one of her establishments in the execution of the search warrant. I'd ask that any such allegation be excluded." The prosecutor told the court that there had been an internal affairs investigation. She explained: "They interviewed the defendant. They interviewed Fowler." The court asked: "So they investigated it?" The prosecutor responded, "Yes." The court said, "So this would seem to be a show within a show." After hearing further argument, the court said, "As of this moment I'm going to exclude the allegation that Fowler stole money from the defendant."
Later, defendant's counsel again raised the issue regarding Fowler. He said that the evidence was "not solely for impeachment. I'm offering it to prove a motive to fabricate in this case." Counsel said that the proffered evidence might be admitted through defendant's testimony. He also said: "There are other witnesses, including her mother, to the theft." The prosecutor again stated that the Sheriff's Department had conducted an investigation; the agency determined that the theft allegation was unfounded and Fowler had since retired. The prosecutor said that if the issue of the alleged theft was raised, then she would need to call in several rebuttal witnesses, resulting in an "undue consumption of time."
After listening to additional points from both attorneys, and considering other provisions of the Evidence Code, the trial court said that under section 352, "if we were somehow to get into the topic of defendant's assertion that money was stolen by the officer, we would have to have a trial within a trial." The court again ruled that it would "deny the admission of any information regarding the defendant's assertion that the investigator stole money from her."
Here, it is apparent from the record that the trial court's ruling was neither arbitrary nor capricious. After hearing extensive argument, the court determined that the admission of the alleged theft evidence would have resulted in an undue consumption of time, or a "trial within a trial." We cannot say that the court's decision was beyond the bounds of reason; another court may have reached the same conclusion. The probative value of the proffered evidence appears minimal. Fowler was just one member of an investigative team involving multiple agencies. And again, Fowler did not testify during the trial. Thus, we find no abuse of the court's discretion.
Moreover, we do not think it is reasonably probable that the admission of the proffered evidence would have resulted in a more favorable outcome for defendant. Again, the allegation was that Fowler had stolen $10,000 in cash during a search of one of defendant's businesses. But even if that allegation were true, such evidence would not have negated any elements of the charged crimes of pimping and pandering. (See People v. Wheeler (1992) 4 Cal.4th 284, 296 [section 352 "empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues"].) Indeed, the presence of $10,000 in cash may have corroborated an inference that defendant was operating an illegal prostitution business. In sum, we would find no prejudice if we were to assume evidentiary error. B. The Admission of Evidence
Defendant argues that the trial court improperly admitted the hearsay testimony of a witness concerning a forensic report (text messages) prepared by a nontestifying witness. We disagree. Further, defendant failed to object to the admission of the text messages themselves; in fact, defendant stipulated to their authenticity.
"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error . . . resulted in a miscarriage of justice." (§ 353.)
"'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (§ 1200.) "When an objection is made to proposed evidence, the specific ground of the objection must be stated." (People v. Kennedy (2005) 36 Cal.4th 595, 612, disapproved on other ground in People v. Williams (2010) 49 Cal.4th 405, 459.) The failure to object to the admission of documentary evidence "forecloses consideration of the issue on appeal." (People v. Larson (2011) 194 Cal.App.4th 832, 836.)
Here, the prosecution called Investigator Joseph Monroe, a forensic examiner. Monroe testified that he is part of a task force that conducts digital exams of cell phones; the task force uses a "Cellebrite" device and software to extract a cell phone's digital contents. Monroe said that he had taken a 32-hour FBI training class, which was a requirement of the task force. Monroe said that he had performed approximately 200 cell phone extractions, which essentially involves generating a report, or a printout of the phone's contents.
Monroe testified that he had reviewed defendant's text messages, which had been extracted from her phone by David White. Monroe testified that he had worked with White on the task force for over six and a half years. The following exchange then occurred:
"[Prosecutor]: Are you familiar with [White's] training and experience with the use of a Cellebrite device?
"[Monroe]: Yes.
"[Prosecutor]: Has he undergone that same FBI training that you've previously described?
"[Defense counsel]: I'm going to object. Foundation.
"The court: Overruled on that ground.
"[Monroe]: Yes. David and I actually took, I believe, two different cell phone training classes through the FBI.
"[Defense counsel]: Objection. Foundation. Hearsay.
"The court: Overruled.
"[Prosecutor]: Have you personally also seen him perform Cellebrite extractions of cell phone devices?
"[Monroe]: Yes.
"[Prosecutor]: And from the training and experience that you've received, does investigator Dave White do those Cellebrite extractions in accordance with all the training and experience that you have, in fact, received?
"[Monroe]: Yes."
Monroe then went on to testify regarding the Cellebrite report (defendant's text messages) without further objection. Defendant's counsel later signed a stipulation that White's report contained "true and accurate copies of text messages" that had been extracted from her phone.
Defendant now makes several interrelated arguments on appeal concerning Monroe's testimony and the Cellebrite report.
First, defendant argues that Monroe "lacked the personal knowledge" that he had attended the same FBI training as White. We disagree. Monroe testified that the FBI training was mandatory, he had worked with White for several years, and he knew that White had taken the same FBI classes that Monroe had taken.
Second, defendant argues that Monroe's testimony concerning White's "education and training" was "hearsay within the meaning of Evidence Code section 1200." Defendant is mistaken. Monroe did not repeat any out-of-court (hearsay) statements made by White concerning his education and training.
Third, defendant argues that "Monroe was also allowed to testify as to his opinion of . . . White's competence in performing cell phone data extraction. Again, this testimony was admitted over the objection of trial counsel." But defendant is again mistaken. She did not object to the prosecutor's question regarding Monroe's opinion of White's competence. Thus, defendant has "foreclose[d] consideration of the issue on appeal." (People v. Larson, supra, 194 Cal.App.4th at p. 836.)
Finally, defendant argues that the trial court improperly admitted testimony regarding White's report itself. Defendant states that the court allowed Monroe to "testify about its content. Allowing such testimony is an affront to the [E]vidence [C]ode and should have been excluded." But again, defendant did not object to Monroe's testimony regarding the content of the report. In fact, defendant stipulated to the authenticity of the report during the course of the trial.
In any event, even if we were to assume error in the admission of the forensic report and Monroe's testimony concerning its contents (the text messages), we would not find the error to be prejudicial. The text messages apparently did not concern any of the transactions at issue in this case. The prosecutor introduced the text messages, which included "terms of art" used in the prostitution business, to show that defendant knowingly engaged in conversations with "sex purchasers." Given the substantial remaining evidence of defendant's pimping and pandering, we find that the exclusion of her text messages would not have resulted in a more favorable outcome. C. Discovery Violation
Defendant argues that the prosecution failed to timely disclose exculpatory "Brady evidence." We agree. The prosecution disclosed exculpatory police reports to defendant on the third day of the trial, which was not timely. But we find that the trial court did not abuse its discretion by denying defendant's motion for a mistrial.
Brady v. Maryland (1963) 373 U.S. 83 (Brady).
Generally, 30 days before a trial begins, a prosecuting attorney is statutorily obligated to disclose to the defendant the evidence to be introduced at trial; further, the prosecutor must disclose any "exculpatory evidence" to the defendant that is known to the prosecutor. (Pen. Code, §§ 1054.1, 1054.7.) Additionally, prosecutors have a constitutional "Brady obligation" to seek out and disclose exculpatory evidence (any evidence that may be "favorable" to the defendant) that is in the possession of law enforcement personnel. (In re Pratt (1999) 69 Cal.App.4th 1294, 1312.) "Evidence is 'favorable' if it either helps the defendant or hurts the prosecution, as by impeaching one of its witnesses." (In re Sassounian (1995) 9 Cal.4th 535, 544.)
When the prosecution fails to comply with its discovery obligations "a court may make any order necessary . . . including, but not limited to . . . contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure." (Pen. Code, § 1054.5, subd. (a).) Additionally, a trial court may grant a defendant's motion for a mistrial based on the grounds that a prosecutor failed to timely disclose exculpatory evidence. (See, e.g., People v. Zambrano (2007) 41 Cal.4th 1082, 1171, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
A motion for a mistrial is a request to terminate the trial before a verdict. The motion "is directed to the sound discretion of the trial court." (People v. Jenkins (2000) 22 Cal.4th 900, 985.) A mistrial should be granted when there has been "incurable prejudice." (People v. Haskett (1982) 30 Cal.3d 841, 854.) "Incurable prejudice" is by its nature a subjective judgment, therefore the trial court is vested with broad discretion in ruling on a defendant's motion for a mistrial. (Ibid.)
In this case, defendant was represented by two defense attorneys during the trial, Dennis Gaughan and David Scharf. Jury selection began on the morning of Tuesday, March 7, 2017. The trial court told the jury that the plan was to hear evidence on Wednesday and Thursday, and then again on the following Monday and Tuesday (March 8, 9, 13, and 14). The court told the jury: "Then we have to take a break . . . . [T]he arguments, the instructions, the last week of March. Okay? I know it sounds odd. But it is what it is." Apparently, Gaughan was going on a planned vacation to Scotland; the lawyers were to return on Thursday, March 23, and the jurors were to return on Monday, March 27.
On the morning of the third day of the trial (Monday, March 13), during the prosecution's case-in-chief, the prosecutor told the court that she became aware of some police "updates" documenting three previously undisclosed vice investigations of the defendant, which had occurred in 2012. The prosecutor told the court that she had notified defense counsel regarding the written reports over the weekend and had sent them to counsel on Saturday evening (March 11). Defense counsel argued that the disclosure was a discovery violation necessitating a mistrial. Counsel argued that the reports were exculpatory because the police had conducted three vice raids and "nothing happened" as a result.
After hearing argument from both sides, the trial court denied defendant's motion for a mistrial. The court said: "So let's finish [Jane Doe Four] this morning. And then if you want me to give you an opportunity to look into this, I can excuse the jury until the 27th. We can finish the evidence and arguments that week." Defense counsel asked: "Your honor, I know we'd like to accommodate [Jane Doe Four], but I'd like an opportunity to review this material in depth before I finish [Jane Doe Four]. I know she'll be subject to recall, but I'm right in the middle of my cross-examination, and that does change things." The court said: "I'm going to deny that request. We can keep her on call."
During a later break, the trial court reviewed the 2012 vice reports concerning defendant. The court decided to reverse its earlier ruling and not order a continuance: "We're going to forge ahead and get as far as we can in the next two days." The court told defense counsel: "You're going to have plenty of time. It's clear we're not going to finish this case in a week. You're going to have all the time while you're in Scotland to review the materials and come back on the 27th and see where it gets you." That afternoon, during the cross-examination of Villanueva, defense counsel asked Villanueva about his 2012 contacts with defendant. Villanueva said that he did not remember them. There was apparently no further discussion or questions regarding the 2012 incidents or reports.
Here, in 2011, Irvine police officers conducted an undercover sting operation of defendant's purported massage business in Irvine, which was the subject of one of the charged crimes. In 2014, the Sherriff's Department conducted three investigations of defendant's purported massage business in Lake Forest and Stanton, which were the subject of the remaining charged crimes. However, there were apparently at least three intervening investigations of defendant's purported massage businesses in 2012, which did not result in any charges being filed. We agree with defendant; the prosecution had a "Brady obligation" to disclose the police reports because they were in possession of the "prosecution team" (even if the trial prosecutor was not aware of them). The evidence was arguably favorable to the defense.
However, we do not find that the trial court erred when it denied defendant's motion for a mistrial. The court had anticipated a break during the jury trial. The court determined that the break would allow defendant's lawyers sufficient time to conduct further investigations, or otherwise utilize the reports for impeachment purposes. Therefore, a mistrial was not legally required. (See Stanley v. Superior Court (2012) 206 Cal.App.4th 265, 278-279 [a mistrial is generally granted when required by "legal necessity"].) Further, the court may have been open to granting lesser sanctions (such as an admonition to the jury regarding the prosecution's late discovery), but defendant made no such requests.
In short, we find that the trial court did not abuse its discretion. Further, based on the strength of the inculpatory evidence (which we have already discussed), we also find that it is not reasonably probable that defendant would have received a more favorable outcome at trial had the 2012 police reports been timely disclosed. The fact that defendant was not arrested in 2012 did not negate the evidence of defendant's pimping and pandering, which was proven to have occurred in 2011 and 2014.
III
DISPOSITION
The judgment is affirmed.
MOORE, ACTING P. J. WE CONCUR: IKOLA, J. THOMPSON, J.