Trinh v. Hon garcia/state

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

CHUNG TRINH, Petitioner,

v.

THE HONORABLE JEANNE GARCIA, Judge of the SUPERIOR COURT
OF THE STATE OF ARIZONA, in and for the County of MARICOPA,
Respondent Judge,

THE STATE OF ARIZONA, Real Party in Interest

No. 1 CA-SA 20-0244
FILED 4-6-2021

Petition for Special Action from the Superior court in Maricopa County
No. CR2019-006110-001
The Honorable Jeanne Garcia, Judge (retired)

JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

Mitchell Stein Carey Chapman, PC, Phoenix
By Flynn P. Carey (argued) and Andrew R. Breavington
Counsel for Petitioner

Arizona Attorney General’s Office, Phoenix
By Brett Harames
Counsel for Real Party in Interest
 TRINH v. HON GARCIA/STATE
Opinion of the Court

OPINION

Judge Paul J. McMurdie delivered the Court’s opinion, in which Presiding
Judge James B. Morse, Jr. and Judge Maria Elena Cruz joined.

M c M U R D I E, Judge:

¶1 Chung Trinh petitions for special-action review of the
superior court’s order denying his motion to remand to the grand jury for
a new finding of probable cause. We accept jurisdiction but deny relief,
holding that under A.R.S. § 21-412, when a defendant sends the State a
letter setting forth his version of events and outlining potentially
exculpatory evidence, the State must notify the grand jury of the letter so it
may decide whether to ask to see it. However, in this case, the State’s failure
to do so was harmless error.

FACTS AND PROCEDURAL BACKGROUND

¶2 Trinh is a co-owner of Lighthouse Psychiatry, which provides
transcranial magnetic stimulation (“TMS”) treatment to patients with
clinical depression. TMS treatment requires a prescription from a licensed
physician, who determines the part of the brain to target and how much
power to use during treatment. The other co-owner of Lighthouse
Psychiatry is Dr. Yakari Kawamoto, a licensed physician. Though not a
licensed physician, Trinh has a medical degree and works as a technician
performing TMS treatments under a licensed physician’s prescription. In
that capacity, he meets with patients regularly to explain TMS and discuss
their treatment.

¶3 Sometime before 2018, the Attorney General’s Office began
investigating an anonymous tip that Trinh was practicing medicine without
a license. Investigators became concerned that Trinh represented himself to
the community and patients as a psychiatrist to garner their trust to
convince them to begin TMS treatment.

¶4 Before the grand jury, the State presented evidence that
several Lighthouse Psychiatry’s patients believed Trinh was a doctor.
Multiple online materials described Trinh as “Dr. Chung Trinh, M.D.” or
“Chung Trinh, M.D.” Trinh also included the “M.D.” designation on
materials for a loan application. Further, the State’s investigator testified

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that Trinh was making medical determinations and performing procedures
without Dr. Kawamoto’s involvement. The witness related that
Dr. Kawamoto rubber-stamped the medical records of patients who dealt
with Trinh. One patient claimed Trinh altered her TMS prescription
without Dr. Kawamoto’s consent, and the therapy as modified caused her
to fall to the floor with intense pain.

¶5 Trinh did not ask to testify before the grand jury but sent the
State a six-page letter outlining his defense to the allegations. Trinh’s letter
explained TMS and described his education, experience, and employment
history, as well as Lighthouse Psychiatry’s billing structure. Trinh provided
the billing structure to show that Lighthouse Psychiatry had derived no
money from any misrepresentations regarding his licensure. The letter also
claimed that Lighthouse Psychiatry recorded Dr. Kawamoto as the
prescribing physician. Additionally, the letter provided Trinh’s explanation
regarding the claims that he represented himself as a physician. Lastly,
Trinh asked the State to clarify to the grand jury that unlawfully using
“M.D.” is legally distinct from the unlawful practice of medicine.

¶6 Trinh emailed the letter to the State before the grand jury
proceedings and, in a follow-up email, asked the State to provide it to the
grand jury in its entirety. On the morning of the grand jury session, the State
confirmed it had received the letter. However, the State did not inform the
grand jury that Trinh had sent the letter, nor did the State present the grand
jury with an outline of the letter’s contents or Trinh’s defense. Eleven out of
the twelve grand jurors voted to indict Trinh on one count of fraudulent
schemes and artifices, four counts of money laundering, two counts of
forgery, one count of practicing behavior analysis without a license, two
counts of practicing medicine without a license, and one count of criminal
impersonation.

¶7 After the indictment’s return, Trinh moved to remand the
case to the grand jury. He argued the State violated A.R.S. § 21-412 when it
failed to inform the grand jury of the letter offering his defense and
identifying potentially exculpatory evidence.

¶8 The superior court denied the motion, concluding that
because Trinh did not request to testify before the grand jury, “the State was
required to present only clearly exculpatory evidence, not all of the
exculpatory evidence or the level of detail the Defendant asserts.” The court
reasoned that when a defendant requests to appear at a grand jury hearing
and provides a description of his proposed testimony, the State is obligated
to convey that information to the grand jury fairly and impartially. Because

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Trinh did not request to appear, the court concluded the State was only
required to present clearly exculpatory evidence.

¶9 Trinh petitions this court for special-action review and
requests we vacate the superior court’s order and remand the matter to the
grand jury for a new probable cause determination.

JURISDICTION

¶10 “Special action jurisdiction is proper when a party has no
‘equally plain, speedy, and adequate remedy by appeal[.]’” Phillips v.
Garcia, 237 Ariz. 407, 410, ¶ 6 (App. 2016) (quoting Ariz. R.P. Spec. Act. 1(a)).
A party generally may not challenge a grand jury’s probable cause
determination on direct appeal. State v. Moody, 208 Ariz. 420, 439–40, ¶ 31
(2004). Arizona caselaw is clear that, with one exception, “all challenges to
a grand jury’s findings of probable cause must be made by motion followed
by special action before trial; they are not reviewable on appeal.” Id.
“Absent an indictment that the State knew was partially based on perjured,
material testimony, [a] defendant may not challenge matters relevant only
to the grand jury proceedings by appeal from conviction.” State v. Murray,
184 Ariz. 9, 32 (1995).

¶11 Trinh does not argue the grand jury indictment was based on
perjured testimony, so he could not raise the denial of his remand motion
on appeal, if convicted. Therefore, special-action jurisdiction is appropriate
because Trinh has no equally plain, speedy, or adequate remedy by direct
appeal. Accordingly, we accept special-action jurisdiction.

DISCUSSION

A. The State Was Required to Inform the Grand Jury that Trinh
Submitted a Letter Presenting His Evidence.

¶12 We review the superior court’s decision to deny a motion to
remand an indictment for an abuse of discretion. Black v. Coker, 226 Ariz.
335, 340, ¶ 16 (App. 2011). When the superior court commits an error of law
in making a discretionary conclusion, it has abused its discretion. Francis v.
Sanders, 222 Ariz. 423, 426, ¶ 10 (App. 2009).

¶13 This case requires us to clarify the State’s duties under due
process and A.R.S. § 21-412 when a defendant submits a letter putting
forward his defense but does not ask to testify before the grand jury. Trinh
argues that because the choice of whether to receive a defendant’s evidence
lies with the grand jury, the State violated the statute by not informing the

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grand jury that he had provided a letter containing exculpatory
information. In response, the State argues that when a defendant submits a
letter that only offers evidence, its obligations are different than when the
defendant requests to testify. The State maintains that although it must
make a fair and impartial presentation to the grand jury, it need not
necessarily inform the grand jury that a defendant has provided evidence.
The State further argues it provided the grand jury with enough evidence
from Trinh’s letter to satisfy the fair and impartial standard, even though it
did not inform the grand jury of the letter.

¶14 Due process requires the State to inform the grand jury of the
existence of clearly exculpatory evidence. See Trebus v. Davis, 189 Ariz. 621,
625 (1997); Bashir v. Pineda, 226 Ariz. 351, 355, ¶¶ 12–13 (App. 2011). Due
process also requires the State to inform the grand jury that a defendant has
asked to appear or has submitted exculpatory evidence for it to consider.
Trebus, 189 Ariz. at 623, 625 (citing Crimmins v. Superior Court, 137 Ariz. 39,
43–44 (1983) (Feldman, J., specially concurring)). Although the State may
not be obligated to present a defendant’s evidence to the grand jury, it
“must inform [the] grand jury of its existence and give [the] grand jury
opportunity to order its production.” Id. at 623 (citing 38A C.J.S. Grand Juries
§§ 168–69 (1996)).

¶15 Under A.R.S. § 21-412, a person under investigation may
request to present evidence to the grand jury. Trebus, 189 Ariz. at 623 (“A
defendant’s right to request the grand jury to consider his evidence is
implicit in [A.R.S. § 21-412].”). In that event, the statute provides:

The grand jurors are under no duty to hear evidence at the
request of the person under investigation, but may do
so. . . . The grand jurors shall weigh all the evidence received
by them and when they have reasonable ground to believe
that other evidence, which is available, will explain away the
contemplated charge, they may require the evidence to be
produced.

A.R.S. § 21-412. Under the statute, “the grand jury is to decide if it wishes
to hear a defendant or his evidence.” Trebus, 189 Ariz. at 626.

¶16 The grand jury, however, can make an informed decision
about whether to accept or reject a defendant’s request to testify or provide
evidence “only if on the one hand, the defendant’s request provides
information with some degree of detail, at least as to the subject and outline
of the proposed evidence, and, on the other hand, if the prosecutor conveys

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that information to the grand jury.” Trebus, 189 Ariz. at 626; see also Herrell
v. Sargeant, 189 Ariz. 627, 629 (1997) (“[O]n proper request, the prosecutor
is obligated to inform the grand jury of any exculpatory matters, thus
enabling the jury to make an informed decision under A.R.S. § 21-412.”).
“The grand jury is, of course, free to either grant or deny the defendant’s
request, but this choice is for the grand jury and not for the [State].” Trebus,
189 Ariz. at 625 (citing State v. Just, 138 Ariz. 534, 540 (App. 1983)). When a
defendant requests to present evidence, there are only two options:

The grand jury may either grant or deny the request. The
statute does not authorize the [State] to present a third option
of summarizing the defense evidence from [its] point of view.

Just, 138 Ariz. at 540.

¶17 The State argues that when a defendant does not ask to testify,
but only offers exculpatory evidence, it need not inform the grand jury of
the defendant’s request. Trebus addressed the State’s obligation when a
defendant submits a letter requesting to present evidence to the grand jury.
189 Ariz. at 622. In discussing the State’s responsibility, Trebus referenced
both a grand jury’s right to consider a defendant’s exculpatory evidence and
its right to listen to his testimony: “[W]e hold the [State] must inform the
grand jury that the defendant has requested to appear or has submitted
exculpatory evidence.” Id. at 625 (emphasis added). The Trebus court’s
holding was intentionally disjunctive, imposing an obligation on the State
to inform the grand jury when a defendant has asked to testify or has
submitted potentially exculpatory evidence.

¶18 In Trebus, the defendant’s letter made two requests. The first
was a request to present exculpatory evidence to the grand jury, and the
second was a request for notice of the grand jury proceedings so the
defendant could choose to exercise his rights under A.R.S. § 21-412. Trebus,
189 Ariz. at 622. The request to submit evidence did not trigger the State’s
duty to inform the grand jury because it was vague and did not refer to any
specific evidence. See id. at 625–26. Also, the defendant did not expressly
request to testify, as his letter was non-committal about testifying. Id.

¶19 Here, although Trinh did not request to testify, he
nevertheless asked the State to present evidence to the grand jury. Trinh’s
letter and request to give evidence were anything but vague. The letter
outlined his defense and referred to specific evidence that he claimed was
exculpatory. Like the request in Trebus, Trinh asked the State to give his
evidence to the grand jury. But unlike in Trebus, Trinh’s letter contained the

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required specificity and clarity to trigger the State’s duty under A.R.S.
§ 21-412. Even though Trinh did not choose to testify, his offer of specific
evidence required the State to inform the grand jury of his letter. See Bashir,
226 Ariz. at 354, ¶ 10 (“[I]f a defendant has provided some degree of detail,
at least as to the subject and outline of the proposed evidence, the
prosecutor has a duty to convey[] that information to the grand jury.”)
(alteration in original) (quotations and citation omitted).

¶20 The State cites this court’s decision in Black v. Coker to argue
that it has different obligations depending on whether a defendant requests
to testify or merely present exculpatory evidence. In Black, we
acknowledged that an “unequivocal offer by a defendant to appear before
the grand jury is distinct from any other proposed evidence.” 226 Ariz. at
340, ¶ 13. However, the reasoning behind that proposition ultimately
undermines the State’s argument. An offer to testify is unique because it
allows the defendant to either “‘explain away the contemplated charge’ or
irrevocably incriminate himself.” Id. (quoting A.R.S. § 21-412). Although
distinct from an offer to testify, an offer to submit evidence similarly seeks
to “explain away” the State’s evidence. It allows the grand jury to consider
the defense’s perspective if it wishes to do so. See Herrell, 189 Ariz. at 630
(reasoning a grand jury should be informed of a defendant’s version of the
relevant facts and possible legal defenses to have a fair and impartial
presentation).

¶21 Black rejected the argument that the State must disclose a
defendant’s request to testify only if the defendant’s letter also details his
anticipated testimony. 226 Ariz. at 337, 339, ¶¶ 6, 11. In coming to that
conclusion, we specifically emphasized two independent triggers of the
State’s duties under Trebus. Id. at 339, ¶ 11 (“We do not read [Trebus] as
making the prosecutor’s duty dependent on both an unequivocal offer and
details of exculpatory testimony. The duty to inform the grand jury is
triggered if either ‘the defendant has requested to appear or has submitted
exculpatory evidence.’”) (quoting Trebus, 189 Ariz. at 625).

¶22 In Bashir, this court considered the State’s obligations under
Herrell/Trebus regarding all exculpatory evidence.

The prosecutor also has the duty, “on proper request, . . . to
inform the grand jury of any exculpatory matters.” Because of
the request, the prosecutor must view the evidence with a
wider view and consider whether a fair and impartial
presentation requires informing the grand jury of the

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defendant’s version of the facts as well as legal instructions
concerning possible justification and affirmative defenses.

Bashir, 226 Ariz. at 355, ¶ 13 (citation omitted) (quoting Herrell, 189 Ariz. at
629). In the present case, the superior court reasoned that a “proper request”
could mean “the grand jury’s request pursuant to A.R.S. § 21-412,” “a court
order remanding the case to the grand jurors,” or “when the defense asks
the prosecutor to present unique facts such as . . . in Herrell and Crimmins.”
We disagree with the superior court’s interpretation and conclude that a
defendant does not need to offer “unique” facts to trigger the State’s
obligation to inform the grand jury of his request.

¶23 In Bashir, we stated, “[a]lthough Herrell involved ‘unique
facts’ concerning a justification defense, we read it as recognizing that a
grand jury’s decision will often depend on being adequately informed of
the circumstances surrounding an incident, including the defendant’s
version of events.” 226 Ariz. at 354, ¶ 11. This broader principle is not
constrained to the “unique facts” discussed in Herrell. The grand jury’s
decision to consider evidence submitted by a defendant always depends on
being adequately informed of the defendant’s request.

¶24 The State argues that it “effectively presented the content of
Trinh’s requested evidence through its witness, only omitting some detail,
without presenting the grand jurors the opportunity to refuse it.” However,
Just expressly prohibits the State from merely summarizing evidence
offered by a defendant who has identified specific evidence for the grand
jury to consider. 138 Ariz. at 540. Allowing the State to summarize defense
evidence hinders the grand jury’s independence and ability to make an
uninfluenced decision about the defendant’s request. Id. at 539–40. Indeed,
the purpose of allowing a defendant to request to testify or present evidence
is to enable the defendant to explain away the contemplated charges. By
comparison, while the State could convey the general facts that a defendant
wishes to submit, an adverse party’s summary lacks the perspective,
context, or tenor of a defendant’s words, diminishing the evidence’s value.

¶25 Our review of persuasive authority from other jurisdictions
reinforces our understanding of Trebus. The Trebus court relied on the
California case Johnson v. Superior Court, which dealt with a similar statute
and recognized a “defendant’s right to bring exculpatory evidence to the
attention of the grand jury by letter,” even absent a request to testify. Trebus,
189 Ariz. at 624 (quoting Johnson v. Superior Court, 539 P.2d 792, 796 (Cal.
1975)). California courts recognize a defendant’s right to submit
exculpatory evidence to the grand jury as distinct from the right to testify.

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See McGill v. Superior Court, 128 Cal. Rptr. 3d 120, 161 (App. 2011). On the
other hand, federal courts do not require a prosecutor to disclose a
defendant’s exculpatory evidence to the grand jury. United States v.
Williams, 504 U.S. 36, 52 (1992); United States v. Navarro, 608 F.3d 529, 537
(9th Cir. 2010). However, we have not found a federal equivalent to A.R.S.
§ 21-412. Thus, federal cases do not lead us to depart from the principles
expressed in Trebus.

¶26 Contrary to the State’s suggestion, the obligation to inform
the grand jury of a defense letter does not convert the State into a
mouthpiece for the defense. The State retains the power to refuse to present
evidence a defendant profers that has no bearing on the question of the
defendant’s guilt or innocence, concerns matters of “witness credibility and
factual inconsistencies,” or is subject to a constitutional, statutory, or
common-law privilege. Bashir, 226 Ariz. at 355, ¶ 13 (non-exculpatory
evidence and evidence relating to witness credibility and factual
inconsistencies); Trebus, 189 Ariz. at 625 (same); Franzi v. Superior Court, 139
Ariz. 556, 559 (1984) (“[T]he grand jury has the right to every person’s
evidence, absent a constitutional, common law, or statutory privilege.”).
For example, the State would be well within its discretion to refuse a
defendant’s request to present evidence of a victim’s alleged promiscuity in
a sexual-assault case, as such evidence is not exculpatory and barred by
Arizona statutory law. See A.R.S. § 13-1421(A) (“Evidence relating to a
victim’s reputation for chastity and opinion evidence relating to a victim’s
chastity are not admissible in any prosecution for any offense in this
chapter.”).

¶27 Accordingly, we conclude the State was required to inform
the grand jury that Trinh submitted a letter that described potentially
exculpatory evidence and outlined his defense. The grand jury was not
required to review Trinh’s letter, but it was entitled to hear it existed. The
State’s refusal to inform the grand jury of Trinh’s letter deprived the grand
jury of its independence under A.R.S. § 21-412. Because the State was
required to notify the grand jury of Trinh’s letter, the superior court erred
when it found no error in the grand jury proceeding.

B. The Error Was Harmless.

¶28 The presentation of evidence to a grand jury is subject to
harmless-error review. Bashir, 226 Ariz. at 355–56, ¶ 18 (citing Maretick, 204
Ariz. at 198, ¶ 15). To find an error harmless, we must be confident beyond
a reasonable doubt that the error did not influence the jury’s judgment. Id.
at 356, ¶ 20. (“In this case, the error was not that the grand jury chose not to

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hear from Bashir, but that it was not fully informed of her offer to appear
and testify.”); Maretick, 204 Ariz. at 198, ¶ 15.

¶29 At the outset, we reject Trinh’s assertion that the State’s failure
to present his letter to the grand jury caused harm requiring remand per se.
As described above, “[t]he purpose of [A.R.S. § 21-412] is obviously to give
the grand jury the opportunity to hear the evidence it deems necessary to
make its probable cause determination.” Just, 138 Ariz. at 540. Trebus,
Herrell, and their progeny stand for the proposition that, to effectuate that
purpose, the State must inform the grand jury of the existence and content
of a defendant’s request to present exculpatory evidence. See, e.g., Trebus,
189 Ariz. at 625; Herrell, 189 Ariz. at 631; Bashir, 226 Ariz. at 355, ¶¶ 15–16.
At its core, imposing this duty ensures the defendant’s due-process right to
a fair and impartial grand-jury presentation.

¶30 But the State’s failure to inform the grand jury of the
defendant’s request does not automatically result in a deprivation of due
process requiring a remand. See Black, 226 Ariz. at 340, ¶¶ 16–18. Before this
court, Trinh suggests the State’s failure to identify him as the source of the
evidence deprived him of the benefit he might gain of having the grand jury
aware that he had supplied the exculpatory evidence. But that cannot be
because the fact that the defendant provided exculpatory evidence has no
bearing on the grand jury’s inquiry. Cf. A.R.S. § 21-413 (“The grand jury
shall return an indictment . . . if, from all the evidence taken together, it is
convinced that there is probable cause to believe the person under
investigation is guilty of such public offense.”) (emphasis added); Maretick,
204 Ariz. at 198 (finding denial of fair presentation to a grand jury, in part,
because the State “failed to instruct the grand jury that . . . [the defendant]
had no obligation to present evidence, and that the jurors could draw no
negative inference from his failure to do so”).

¶31 This is not to say the State has a blank check to ignore A.R.S.
§ 21-412. The State can expect exacting scrutiny from the court when a
defendant moves to remand, raising a colorable claim that the State failed
to comply with the statute. See Trebus, 189 Ariz. at 626; Black, 226 Ariz. at
340, ¶ 18 (“If the failure to inform the grand jury [of a letter from counsel]
was strategic or intentional, we might conclude otherwise.”). As in Trebus,
we simply acknowledge that for any alleged violation of A.R.S. § 12-412,
the central question remains whether a fair presentation to the grand jury
occurred, and what constitutes a fair presentation will “vary from case to
case.” 189 Ariz. at 626 (quotation omitted).

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¶32 In this case, we are confident beyond a reasonable doubt that
the letter would not have changed the outcome. The State provided enough
evidence to obtain an indictment, regardless of the evidence presented in
Trinh’s letter. Trinh’s letter failed to address some of the State’s most
incriminating evidence. For example, Trinh’s letter did not dispel the
evidence that he performed motor threshold determinations on patients
without the presence of Dr. Kawamoto. Nor did the letter address the
evidence that Trinh adjusted a patient’s TMS treatment without informing
Dr. Kawamoto, causing intense pain and making the patient fall to the floor.

¶33 Moreover, Trinh’s letter did not challenge the State’s evidence
that he routinely misrepresented himself in promotional materials with the
“M.D.” designation.1 Likewise, the letter addressed none of the many
patients who believed he was a licensed doctor. It also failed to address the
loan application materials that also contained the “M.D.” identifier. Thus,
Trinh’s letter did not “explain away” the State’s most concerning
allegations. See Black, 226 Ariz. at 340, ¶ 17 (finding an error harmless
partially because the testimony was unlikely to explain away the State’s
charges).

¶34 Trinh’s letter also challenged a witness’s credibility and
motivation for speaking out against him. However, we reiterate that “issues
such as witness credibility and factual inconsistencies are ordinarily for
trial.” Trebus, 189 Ariz. at 625.

¶35 The State disclosed most of Trinh’s evidence to the grand jury,
even though it did not provide the context or narrative that Trinh wanted
it to offer. Trinh’s letter strongly emphasized that Dr. Kawamoto always
approved medical decisions and was listed on consent forms, medical
charts, prescriptions, and explanations of benefits as the prescribing
physician. The State’s presentation informed the grand jury of this
arrangement. However, its theory was that Dr. Kawamoto was not
regularly in the office but went in only to bulk-sign weekly paperwork.
Similarly, while the State may not have conveyed Trinh’s background to
the grand jury with the detail or nuance Trinh wanted, the State made clear

1 Although Trinh requested the jury be informed of A.R.S.
§ 32-1455(B)(1) and why he could not be charged with misusing the title
“M.D.,” we note that Trinh was not indicted under that statute.
Furthermore, any distinction between the unlawful use of “M.D.” and the
unauthorized practice of medicine is of little significance considering the
unaddressed evidence that he treated patients without supervision.

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Trinh was a trained and fully certified TMS operator. The State’s
presentation of this evidence may not have been particularly favorable to
Trinh, but it was not misleading.

¶36 The grand jury’s role is not to decide a defendant’s guilt—it is
to make a probable cause determination. Trebus, 189 Ariz. at 625. Given the
uncontroverted allegations in the State’s grand jury presentation and the
disclosure of most of Trinh’s evidence, we conclude the State’s error was
harmless in this case.

CONCLUSION

¶37 We grant special action jurisdiction but deny relief.

AMY M. WOOD • Clerk of the Court
FILED: AA

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