Filed 9/14/20 P. v. Nguyen CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D075246
Plaintiff and Respondent,
v. (Super. Ct. No. SCN378815)
JESSICA NGUYEN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Carlos O. Armour, Judge. Affirmed.
Janice R. Mazur, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A.
Sevidal and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and
Respondent.
I.
INTRODUCTION
The People charged Jessica Nguyen with stalking (Pen. Code, § 646.9,
subd. (a))1 (count 1), corporal injury to a spouse or roommate (§ 273.5, subd.
(a)) (count 2), and willful cruelty to an elder (§ 368, subd. (c)) (count 3). After
the trial court granted Nguyen’s motion for acquittal as to the stalking count
(count 1), a jury found Nguyen guilty on the remaining counts. At
sentencing, the trial court suspended imposition of sentence and placed
Nguyen on probation for three years.
On appeal, Nguyen claims that the trial court erred in admitting
evidence related to two police officers’ attempt to serve her with an
emergency protective order. Nguyen also maintains that the trial court erred
in admitting the testimony of two witnesses that the People offered to rebut
the defense’s character witnesses.
We affirm the judgment.
1 Unless otherwise specified, all subsequent statutory references are to
the Penal Code.
2
II.
FACTUAL BACKGROUND
The victim, J.S., is a 74-year-old retired Marine. In 2000, he met
Nguyen. Their relationship evolved into a dating one, and they began living
together.
In approximately 2016, the couple moved to Oceanside. Over time, the
nature of their relationship changed. The victim developed early onset
dementia and Nguyen became his paid caretaker.
Nguyen began to verbally and physically abuse the victim. She would
become angry and call him names and slap him in the face. Nguyen would
occasionally throw objects at the victim. During one incident, Nguyen placed
a large knife to the victim’s side and said, “This is the next thing you get.”
The abuse continued over a period of about six months.
On the morning of Columbus Day 2017, Nguyen hit the victim
approximately 20 to 30 times with a stick and a ruler, mostly on his head.
The victim begged Nguyen to stop and told her that he was bleeding. Nguyen
also threw a cup of hot coffee at the victim, hitting him in his back. The
victim left his house and went to a nearby church, where he reported the
abuse to several people. One of the people at the church called the police.
3
Photos taken on the day that the victim reported the abuse show
scratches and marks on the victim’s face and neck as well as scratches and
bruises on his arms, and a coffee stain on his back.
III.
DISCUSSION
A. The trial court did not abuse its discretion in admitting evidence related
to two police officers’ attempt to serve Nguyen with an emergency protective
order
Nguyen claims that the trial court erred in admitting evidence related
to two police officers’ attempt to serve her with an emergency protective
order. Nguyen maintains that the court’s ruling to admit this evidence was
error because the ruling improperly permitted the People to present evidence
of Nguyen’s constitutionally protected right to “refuse to talk to police . . . .”
1. Factual and procedural background
During the trial, the prosecutor asked Oceanside Police Detective Todd
Ringrose on direct examination whether Ringrose had been “tasked with
serving an emergency protective order”2 in this case. After Detective
2 Detective Ringrose described an emergency protective order as follows:
“An emergency protective order, also known as an EPO, is a
court order similar to a restraining order that is issued by a
judge after hearing the facts of the case as presented by the
officer that essentially says you cannot contact Party A.
Cannot contact Party B. Can’t go near Party B’s house.
4
Ringrose responded in the affirmative, defense counsel posed a relevancy
objection, which the court sustained. The prosecutor requested a sidebar
conference, which the court granted. After the sidebar conference, which was
not reported, the court reversed its evidentiary ruling and permitted the
testimony.
Detective Ringrose proceeded to testify about police efforts to serve
Nguyen with a protective order. Detective Ringrose explained that he and
Oceanside Police Sergeant Marilyn Ortega drove to a residence that Nguyen
shared with the victim. Once at the residence, the officers could see a vehicle,
previously identified as belonging to Nguyen, parked in the driveway.
Approximately 10 feet in front of the front door of the residence was a
“makeshift baby gate,” that was approximately “three to four feet high with a
bike lock around it.” The gate prevented the officers from reaching the front
door. The officers attempted to call Nguyen on the phone, but she did not
answer.
Detective Ringrose looked through a window and could see Nguyen
“hiding behind [a] wall and . . . a large speaker . . . .” As the officers moved
around the house, Nguyen could be seen moving around to different sides of
the wall. After “repeated attempts to get [Nguyen] to come to the front door,”
Can’t phone them. Can’t text them. Can’t strike, harass.
Essentially stay away from the person.”
5
she eventually came to the threshold of the front door. According to Detective
Ringrose, Nguyen’s demeanor was “extremely hostile and aggressive,” and
she was yelling at the officers. When the prosecutor asked Detective
Ringrose to explain what he meant by “hostile and aggressive,” Ringrose
stated:
“Sure. As we tried to speak, Ms. Nguyen would yell at me
and talk over or through me. She would not listen to
anything I had to say and continued to yell at me.”
Although Detective Ringrose and Sergeant Ortega were not successful
in serving Nguyen with the protective order, another officer was able to serve
her with the order during a traffic stop that occurred after Ringrose and
Ortega left the area.
Outside the presence of the jury, the trial court permitted the
prosecutor and defense counsel to augment the record concerning the court’s
ruling on the admissibility of the evidence pertaining to the attempted
service of the restraining order. Defense counsel argued that Nguyen had a
right “not to speak to officers,” and that the People should not have been
permitted “to comment on her refusal at the time to speak with the police.”
The prosecutor argued in response, “[Nguyen] absolutely does have a
right not to speak to officers and we didn’t elicit any testimony about her
refusal to speak with them, just that she was hostile when they did try to
talk to her and that she was hiding in her house when they arrived there.”
6
The prosecutor continued, arguing that evidence of Nguyen’s efforts to hide
and her hostility toward the police officers were relevant to demonstrate her
consciousness of guilt.
After hearing arguments from counsel, the trial court explained the
basis for its ruling, on the record, in relevant part as follows:
“Thank you. And I originally ruled that before I knew the
full story that the issue of the protective order was really
not relevant, but as far as the testimony that I heard this
morning, it appears that [there] was a lock on the outside of
the gate or on the gate. And you can argue that or you can
fill in the blanks here, either side, as to whether . . . that
was there before or when that was put there.
“But the officer testified that he looked in a window and
could see your client, [Ms. Defense Counsel], in somewhat
questionable behavior as far as whether she was trying to
avoid any contact with . . . the officers.
“You know, . . . she doesn’t have an obligation to come out,
but her behavior could be interpreted as . . . she’s trying to
avoid the police.
“And you may have a counterargument that’s just as valid,
but certainly that the [sic] circumstantial evidence of —
possibility of a consciousness of guilt on her part. So that’s
the purpose for which it was admitted.”
2. Governing law and standard of review
Evidence that a defendant tried to hide after the crime is relevant to
show consciousness of guilt. (People v. Vu (2006) 143 Cal.App.4th 1009,
1030 (Vu); see, e.g., People v. Kelly (1928) 203 Cal. 128, 138 [“The testimony
of the police officers that, when the defendant was found at his home in San
7
Francisco, a week after the murders were committed, he was in hiding and
attempted to escape, was properly admitted for the purpose of showing a
consciousness of guilt”]; People v. Osorio (2008) 165 Cal.App.4th 603, 609,
618, fn. 4 [“[defendant’s] action[ ] in hiding his face [when police were
surveilling his house several days after killing] . . . demonstrated a
consciousness of guilt”].) That is because “a consciousness of guilt may be
inferred from an attempt to avoid apprehension.” (People v. Dabb (1948) 32
Cal.2d 491, 500.)
Evidence of consciousness of guilt is in turn evidence “ ‘of the fact of
guilt itself.’ ” (People v. Wong (1973) 35 Cal.App.3d 812, 831; see People v.
Jones (2018) 26 Cal.App.5th 420, 441 [“Evidence of a defendant’s
consciousness of guilt . . . is admissible to prove the crime”].)
“[T]he existence of alternate explanations for the defendant’s behavior
does not necessarily defeat the court’s discretion to admit consciousness-of-
guilt evidence. [Citations.]” (People v. Anderson (2018) 5 Cal.5th 372, 391–
392 (Anderson).) Rather, “ ‘the existence of explanations—other than
consciousness of guilt of the crime charged— . . . is relevant to the weight of
the evidence . . . , but not to its admissibility . . . .’ ” (Id. at p. 392.)
“Evidence showing consciousness of guilt . . . is generally admissible
within the trial court’s discretion. The court’s ruling is reviewed for abuse of
discretion. [Citations.]” (Anderson, supra, 5 Cal.5th at p. 391.)
8
3. Application
The trial court could have reasonably determined that Detective
Ringrose’s testimony concerning Nguyen’s actions when Detective Ringrose
and Sergeant Ortega came to her residence were consistent with an effort to
avoid contact with the officers. When considered cumulatively, evidence
concerning the locked gate, Nguyen’s failure to answer the phone, and, in
particular, Nguyen’s efforts to avoid being seen by the officers, constitutes
evidence from which the jury could find that Nguyen was trying to hide from
the police. Further, the trial court reasonably found that such evidence
constituted admissible consciousness-of-guilt evidence. (See Vu, supra, 143
Cal.App.4th at p. 1030.)
Nguyen’s contention that this evidence was inadmissible because it
amounted to improper evidence of her assertion of her constitutional right to
refuse to talk to the police3 under the reasoning in People v. Keener (1983)
148 Cal.App.3d 73 (Keener), is unpersuasive. In Keener, the trial court
permitted the People to introduce evidence pertaining to a SWAT-team
“siege” of the defendant’s home in order to prove his consciousness of guilt of
the charged offenses. (Id. at p. 78 [“Evidence of the siege was offered to show
a consciousness of guilt; i.e., if defendant was not guilty he would have
3 (Citing, e.g., People v. Zamudio (2008) 43 Cal.4th 327, 346 [discussing
the “ ‘right to refuse’ police requests”].)
9
immediately surrendered”].) After stating that the evidence was
“questionably relevant” (ibid.), the Court of Appeal concluded that the
evidence had been improperly admitted because it constituted “comment
upon the assertion of a constitutional right” (ibid.), namely, the defendant’s
right to refuse “to consent to a warrantless entry of his residence.” (Id. at pp.
78–79.)
In this case, it is undisputed that the officers did not attempt to gain
entry to the residence. Thus, the specific constitutional right at issue in
Keener is not at issue in this case.4 Nguyen suggests that Keener applies by
way of analogy because the evidence to which she objects constitutes an
improper comment on her constitutional right to refuse to speak to the police.
We are not persuaded.
To begin with, there is no evidence that the police officers attempted to
question Nguyen such that her right not to speak to the police could have
even been triggered. Detective Ringrose explained that the officers were
there to serve Nguyen with a protective order. He did not testify that the
officers were there to question her about a crime. Nguyen cites no case law
demonstrating that she had a right to refuse service of an emergency
4 In any event, Detective Ringrose testified that the victim had given the
officers permission to enter the residence, and Nguyen makes no argument
that such consent was invalid.
10
protection order. Moreover, there is no evidence that the officers asked
Nguyen any questions or that Nguyen refused to answer the officers’
questions. While there was some evidence that the officers attempted to
speak to Nguyen,5 there was no evidence that the officers were attempting to
elicit any response from her. In addition, Detective Ringrose testified
concerning Nguyen’s acts (i.e., hiding and then yelling), which are distinct
from any assertion of her right to refuse to speak to police. This fact also
distinguishes this case from Keener, since in Keener, the entire body of
evidence at issue (i.e., a description of police efforts pertaining to a siege of
the defendant’s residence) amounted to a comment on the defendant’s
assertion of his constitutional right, namely, his refusal to consent to entry of
the residence.
Accordingly, we conclude that the trial court did not abuse its
discretion in admitting evidence related to police officers’ attempt to serve
Nguyen with an emergency protective order.
B. The trial court did not abuse its discretion in admitting the People’s
rebuttal evidence
Nguyen claims that the trial court erred in admitting the People’s
rebuttal evidence because the evidence was “wholly irrelevant and
5 Specifically, when asked to explain what he meant by stating that
Nguyen was “hostile and aggressive,” Detective Ringrose replied that when
the officers tried to speak to Nguyen, she yelled at them and would not listen.
11
inadmissible.” Specifically, Nguyen contends that the rebuttal witnesses’
testimony had “virtually no relevance,” to Nguyen’s “relationship with [the
victim] or with the alleged charges.”
1. Factual and procedural background
a. The defense’s character evidence
The defense called as witnesses two friends of Nguyen’s and a neighbor
of Nguyen’s who testified to Nguyen’s peaceful character. A friend, who knew
both Nguyen and the victim, testified that Nguyen was “a sweetheart.” The
friend stated that he found it “hard to believe,” that Nguyen could be violent
toward anyone. A neighbor who lived near Nguyen and the victim and who
was friendly with Nguyen stated that Nguyen had a “gentle soul” and told
the jury that, based on what she knew of Nguyen, the neighbor did not
believe that Nguyen had hit the victim. Another neighbor of Nguyen’s
testified that he had never seen her lose her temper and that he could not
“imagine her hitting anybody . . . .”
b. The hearing on the admissibility of the People’s rebuttal
evidence
Outside the presence of the jury, the People requested permission to
present the testimony of two additional neighbors who lived near Nguyen and
the victim. According to the prosecutor, the neighbors would testify that they
saw young workers helping Nguyen and the victim with yard work. The
12
prosecutor explained that the neighbors saw Nguyen “yelling at the workers
very demanding [sic].” The prosecutor stated that such evidence was being
offered to rebut the testimony of the character witnesses offered by the
defense “essentially saying that [Nguyen] never raises her voice,” and that
she is “as sweet as can be.”
The defense objected to the introduction of the evidence, arguing, “the
fact that [Nguyen] was demanding while they were doing work in the yard
does not raise [sic] to the level of appropriate rebuttal character evidence.”
The defense continued by noting that the defense witnesses had observed
Nguyen “over the period of several years,” and had seen Nguyen interacting
with the victim. The defense argued that, in contrast, the People’s proffered
rebuttal evidence was merely that Nguyen had been “demanding when [she
and the victim] were in the yard together.”
The court ruled that the people could present the evidence, reasoning in
part, “I believe the . . . defense had a right to put on character evidence and
the people have a right to put on evidence [to] try to rebut that testimony.”
c. The People’s rebuttal evidence
A married couple who were neighbors of the victim and Nguyen
testified concerning Nguyen’s interactions with young people working for
Nguyen and the victim in their front yard. The husband of the couple
testified that on one occasion, he observed Nguyen being “very demanding”
13
and “mean” toward the workers. The husband explained the Nguyen spoke
to the workers with a “very sharp” tone. The wife of the couple stated that
when she saw Nguyen interacting with the workers, Nguyen was “very
demanding, bossy.” The wife added that “a lot of times [Nguyen was]
yelling.” In addition, the wife stated, “I could hear her from my house [four
houses away] yelling out orders to these people that were helping.”
2. Governing law and standard of review
Relevant evidence is 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.)
Evidence Code section 1102 provides:
“In a criminal action, evidence of the defendant’s character
or a trait of his character in the form of an opinion or
evidence of his reputation is not made inadmissible by
Section 1101[6] if such evidence is:
“(a) Offered by the defendant to prove his conduct in
conformity with such character or trait of character.
“(b) Offered by the prosecution to rebut evidence adduced
by the defendant under subdivision (a).”
6 “[Evidence Code] section 1101 generally excludes evidence of character
or a trait of character to prove a person’s conduct on a specified occasion.
([Evid. Code,] § 1101, subd. (a).) [Evidence Code] [s]ection 1102 creates an
exception to this rule in criminal cases . . . .” (People v. Felix (1999) 70
Cal.App.4th 426, 431.)
14
A trial court’s ruling on the relevance of evidence is reviewed for an
abuse of discretion. (People v. Kipp (2001) 26 Cal.4th 1100, 1123.) Similarly,
“ ‘ “ ‘[t]he admission of rebuttal evidence rests largely within the sound
discretion of the trial court and will not be disturbed on appeal in the absence
of “palpable abuse.” ’ ” ’ ” (People v. Krebs (2019) 8 Cal.5th 265, 335.)
3. Application
While the neighbors’ testimony surely did not have great probative
value given their limited interactions with Nguyen, we cannot say that the
evidence was wholly irrelevant. The evidence amounted to proper rebuttal
evidence in that the trial court could have reasonably determined that the
testimony of the two neighbors was relevant for the purpose for which it was
offered, namely, to rebut evidence of Nguyen’s character for peacefulness, and
that their testimony was responsive to the defense’s character evidence. The
trial court could have reasonably determined that it was for the jury to decide
how much weight to give the rebuttal testimony.
Accordingly, we conclude that the trial court did not abuse its
discretion in admitting the People’s rebuttal evidence.
15
IV.
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
HALLER, Acting P. J.
IRION, J.
16
People v. Nguyen CA4/1
Combined Opinion