Filed 6/18/21 P. v. Pangan CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B302799
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA146467)
v.
RAMIL MAGLAQUI PANGAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Raul A. Sahagun, Judge. Reversed and
remanded.
Tracy A. Rogers, 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, Eric A. Swenson and Heather M. Clark, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________
Ramil Maglaqui Pangan appeals from his judgment of
conviction of sexual penetration of an unconscious person (Pen.
Code,1 § 289, subd. (d)) and attempted oral copulation of an
unconscious person (§§ 664, subd. (a), 288a, subd. (f)). Pangan
was convicted of the offenses at a second trial after the jury at
the first trial was unable to reach a verdict. On retrial, the
prosecution relied on evidence showing that, when confronted
with the allegation that he had sexually assaulted the victim,
Pangan did not deny it, but rather apologized to the victim for his
conduct. On appeal, Pangan contends the trial court erroneously
excluded proffered defense evidence that (1) Pangan said to call
the police and have the victim examined by a doctor when he was
first told of the allegation, and (2) Pangan’s wife directed him to
apologize to the victim even if he was not guilty. The evidence of
the wife’s complete statement to apologize was admitted at the
first trial, but excluded at the second. We conclude the trial court
erred in excluding the proffered evidence, and the error was not
harmless. We accordingly reverse and remand for a new trial.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
FACTUAL AND PROCEDURAL BACKGROUND2
The Prosecution Case
Pangan and Vanessa D., the victim in this case, were part
of a close-knit group of friends. Vanessa D. met Pangan through
her boyfriend, Carlos C., who worked at a restaurant where
Pangan was the head chef and Pangan’s wife, Johanna Pangan,3
was the manager. Stephen C., Emily B., and a man named R.J.
also worked at the restaurant. The group regularly socialized
together outside of work, often at the Pangan residence. Vanessa
D. and Carlos C. were particularly close to the Pangans and
visited their home several nights a week. On other occasions,
Carlos C. would drop Vanessa D. off at the Pangan residence in
the morning, and Pangan would drive her to her workplace in the
afternoon. Vanessa D. regarded Pangan and Johanna as her
second family.
The Pangan residence was a three-bedroom home. Pangan,
Johanna, and their three children occupied one bedroom. R.J.
and Pangan’s older uncle shared another room, and a couple with
a daughter rented the third room. The residence also had a
converted garage where the men would sometimes congregate to
drink.
2 The factual and procedural background is taken from the
record of Pangan’s second trial.
3 We refer to Johanna Pangan by her first name for the
sake of clarity; we intend no disrespect.
3
On the night of July 30, 2017, Vanessa D. and Carlos C.
went to the Pangan residence after work. Vanessa D. was about
22 years old at the time. When Vanessa D. and Carlos C. arrived
at the residence, they watched television in the living room with
Johanna, Emily B., and the Pangan children. After Pangan and
Stephen C. arrived from work, the group went to the store and
bought a bottle of whiskey. At some point, Carlos C. left and
went to his mother’s house to play mahjong with his brother and
R.J. Pangan, Johanna, Stephen C., and Vanessa D. went to the
garage to drink. Vanessa D. drank two to four shots of whiskey
that night. She felt tipsy but not drunk. She was wearing denim
shorts and a sleeveless shirt with a long cardigan sweater.
Pangan was wearing a blue shirt.
Around 1:00 a.m., Vanessa D. left the garage and lay down
on a couch in the living room. She covered herself with a blanket
and checked her cell phone before falling asleep. Johanna joined
Vanessa D. in the living room and slept on another couch about
six feet away. The room was dark except for the light emanating
from an aquarium near where Vanessa D. was sleeping.
In the early morning hours, Vanessa D. was awakened by a
sharp pain in her vagina. She noticed her blanket had been
moved, and her shorts and underwear had been pushed to the
side. Pangan was sitting on the couch near her feet. He had on
the same blue shirt he had been wearing earlier that night.
Vanessa D. felt Pangan’s fingers inside her vagina. She then saw
Pangan “lick” her vaginal area. Pangan next touched her breast
over her clothing and kissed her mouth. He then covered her
with the blanket. Vanessa D. rolled onto her side with her face
4
toward the couch and began to cry. She could not speak because
she was in shock and disbelief about what Pangan had done.
A short time later, Carlos C. and R.J. arrived back at the
Pangan residence. Vanessa D. was still lying on the couch in the
living room, and she was startled when Carlos C. touched her
shoulder to take her home. As Carlos C. was driving them to
their home, Vanessa D. started to cry. She asked Carlos C., “Was
it you?”4 Because Vanessa D. continued to sob and seemed
afraid, Carlos C. knew something was wrong and began driving
back to the Pangan residence. After Carlos C. repeatedly asked
her what happened, Vanessa D. told him that Pangan had
touched her.
When they arrived at the Pangan residence, Carlos C. and
Vanessa D. remained in the car. Carlos C. first called R.J. and
asked him to come outside. After telling R.J. what had happened
to Vanessa D., Carlos C. asked R.J. to get Johanna. When
Johanna came outside, she sat in the car behind Vanessa D.
While crying, Vanessa D. told Johanna that Pangan had
“fingered” her vagina. Johanna also started to cry. She asked
Vanessa D. if she was sure it was Pangan, and not one of her
children or Pangan’s uncle. When Vanessa D. confirmed she saw
Pangan’s face, Johanna left the car crying and went to find
Pangan. After Johanna left, Stephen C. came outside, and there
4 At trial, Vanessa D. testified that when she asked
Carlos C. this question, she was remembering her assailant’s
blue shirt, which caused her to think Carlos C.’s shirt was blue
even though it was actually gray. Vanessa D. explained that, in
that moment, she could not accept that anyone else would have
touched her body.
5
was a discussion about whether to call the police. While
Carlos C. and R.J. wanted to report the incident to the police
immediately, Stephen C. asked Vanessa D. not to do so. At that
time, Vanessa D. did not want to involve the police because she
was concerned about the possible immigration consequences for
the Pangan children.
At Stephen C.’s suggestion, Carlos C. and Vanessa D. spent
the next few days at his residence. Although Stephen C. told
them he would help them file a police report, he also asked
Vanessa D. to talk to Johanna before taking any action. About
two days after the incident, Johanna met with Vanessa D. at
Stephen C.’s house. When Vanessa D. told Johanna that she
intended to report the incident, Johanna replied, “Okay, then go,
Vanessa. Whatever your decision is, there is really nothing that
we can do about it.” After talking with Vanessa D., Johanna
assured Carlos C. she would support them if they decided to
contact the police. Johanna also hugged Carlos C. and asked for
his forgiveness.
Over the next few days, Vanessa D. was too distraught to
eat, sleep, or work. Later that week, she attended a local fair
with Carlos C., Johanna, Stephen C., and Emily B. Although
Vanessa D. was hoping to return to a sense of normalcy, she
realized she could not because of what Pangan had done to her.
About one to two weeks after the incident, Vanessa D. went to
the hospital to see if she could undergo a sexual assault exam.
She was told, however, that an exam would not provide evidence
of a sexual assault after a 24-hour period. While at the hospital,
Vanessa D. met with a sheriff’s deputy and reported the sexual
assault at that time.
6
On August 5, 2017, prior to Vanessa D.’s police report,
Pangan sent her a Snapchat message, stating, “Vane I’m sorry
already I’m begging you please have pity on me and on my kids I
wish I could be the one to take the punishment I’ll do anything
please I really didn’t mean it about what happened . . . just
please . . . I’m just going to leave here or if you want me to
disappear from this earth Please vane Have pity on me Please
allow me first to say goodbye to them please.” Vanessa D.
showed the message to Carlos C., who took a screenshot of it with
his cell phone. While Vanessa D. did not respond to the message,
she remained worried that the Pangan children could be deported
if she contacted the police.
At some point before Vanessa D. reported the incident to
the police, Stephen C. and Emily B. arranged for Carlos C. and
Pangan to meet at the Pangan residence. Johanna, Stephen C.,
and Emily B. were also present at the meeting. Pangan
apologized to Carlos C. and asked for his forgiveness. He said he
should be given a chance to change because of his children. He
urged Carlos C. to physically hurt him rather than file a police
report, and stated he would not fight back. When Carlos C. left
the meeting, Pangan ran after him and continued to apologize.
Pangan also offered to pay Vanessa D. the amount of her salary
while she was unable to work.
On September 20, 2017, after Vanessa D. reported the
incident, the police arranged for her to conduct a pretext call
with Pangan. During the call, Vanessa D. told Pangan she
had been to counseling. She said she wanted peace of mind,
and wanted to ask him about what he “almost did to” her.
Pangan responded, “I really can’t, you know, Vane, what I really
7
did. No, I really don’t know what, so. . . .” Vanessa D. told
Pangan that she saw him that night, and that he “fingered” and
“licked” her “private part” while she was asleep. Pangan replied,
“That’s why if I had done that, I’m really sorry and I’m begging
you.” When Vanessa D. reminded Pangan that Carlos C. was his
friend, Pangan stated, “I guess I was just carried away by . . . I
really didn’t, I really didn’t mean to do it, if I had done that.
That’s why it’s also difficult for me to . . . . That’s why now. . . .”
Pangan continued, “I can’t for the life of me figure out why it
happened. That’s why I’m thinking I no longer want to be, you
know, if that’s what I have done. So now even [Johanna] and I
might separate because it’s not. . . I don’t want to, you know . . . I
might also leave California because there is . . . again, I’m, you
know, that’s why . . . . I don’t know if I’m going back to the
Philippines or what. If I had done that, please forgive me. I
really can’t fully figure out, you know . . . that’s why I’m sorry
for that. I’m really, really, really sorry.”
Vanessa D. told Pangan that she thought of him as her
family, and she could no longer work because she felt so
miserable. Pangan again apologized, stating, “That’s why I’m
really sorry if, you know . . . That’s all I can really do right now.
I also miss all of you, our, you know. . . I thought, ‘Why so?’
Maybe it’s just because of, you know . . . but I really didn’t mean
to do it, if I had done that. I also really want, you know, peace of
mind. And now there’s another one. That’s why I told [Johanna],
Maybe I just really need to leave all of you for now. I’m also
becoming, you know. Maybe I’ve really become . . . bad or
something. I don’t know.” Later in the conversation, Pangan
added, “I knew it was bad, but I did it anyway. I really cannot
accept it. I’m also suffering. I also don’t want, you know. . . . I
8
also really don’t know. That’s why when I talked to [Carlos C.] I
told him, Do it to me, do whatever you want to do to me, because
I’m also suffering.” When Vanessa D. stated that she was
“suffering more,” Pangan replied, “So it is.”
The Defense Case
Johanna, Stephen C., and Emily B. testified for the
defense. On the night of July 30, 2017, Vanessa D. poured shots
of whiskey for the group of friends gathered in the garage, and
they each took turns drinking shots. Vanessa D. consumed five
to six shots. Emily B. was in the living room when Vanessa D.
and Johanna came inside. Vanessa D. asked Emily B. why she
had not joined the group, and then added, “Look now, we are
drunk.” Emily B. left the Pangan residence shortly after she
spoke with Vanessa D. She noticed Vanessa D. was wearing
“very tight” mid-thigh jean shorts, which were different from the
shorts that Vanessa D. had testified she was wearing that night.
On the night of July 30, Pangan was wearing a blue shirt.
Johanna recalled that Pangan’s uncle was also present in the
home that night and wearing a blue shirt. Early the next
morning, Johanna was awakened by R.J. When Johanna came
outside, Vanessa D. was crying. Carlos C. spoke first and said
that someone had “fingered” Vanessa D. He asked Vanessa D. to
tell Johanna who had done so. When Vanessa D. did not initially
respond, Johanna asked, “Was it my children?” Vanessa D.
continued to cry as she told Johanna that it was Pangan.
Johanna also began to cry. She got out of the car and went to the
garage to “confront” Pangan. Johanna later told Pangan to “ask
for forgiveness.”
On the morning of July 31, Stephen C. was awakened when
Johanna came into the garage. He then went outside to talk to
9
Carlos C. and Vanessa D. Because Vanessa D. was crying and
wanted to leave, Stephen C. said they should go home, rest, and
talk again later. Later that morning, Stephen C. saw Pangan’s
uncle leave for work, and he noticed the uncle was wearing a blue
shirt. Stephen C. invited Carlos C. and Vanessa D. to his
residence that afternoon so that they could relax and think about
what they wanted to do. He never suggested that they should not
report the incident to the police. During the meeting between
Carlos C. and Pangan about the incident, Stephen C. told Pangan
to talk to Carlos C. and “just apologize.”
Both Stephen C. and Emily B. testified they had never seen
Pangan mistreat women or display a sexual interest in
Vanessa D. Johanna testified that, prior to the incident,
Vanessa D. would spend time alone with Pangan in the family’s
residence, and she never complained about Pangan making
unwanted sexual advances toward her.
Jury Verdict and Sentencing
At the first trial, the jury was deadlocked seven to five in
favor of Pangan’s guilt, and the court declared a mistrial. At the
second trial, the jury found Pangan guilty of sexual penetration
of an unconscious person (§ 289, subd. (d)) and attempted oral
copulation of an unconscious person (§§ 664, subd. (a), 288a,
subd. (f)). The trial court sentenced Pangan to a term of three
years on the sexual penetration count and a concurrent term of
18 months on the attempted oral copulation count. The court
also imposed a $300 restitution fine (§ 1202.4, subd. (b)), an $80
court operations assessment (§ 1465.8), a $60 criminal conviction
assessment (Gov. Code, § 70373), and a $300 sex offender fine
with penalty assessments and a 20 percent surcharge (§ 290.3).
Pangan timely appealed.
10
DISCUSSION
On appeal, Pangan challenges two of the trial court’s
evidentiary rulings. First, Pangan contends the court erred in
excluding testimony that, when Johanna first confronted him
with Vanessa D.’s sexual assault allegation, Pangan said to call
the police and have Vanessa D. examined by a doctor. Second,
Pangan asserts the court erred in excluding testimony that
Johanna told him to apologize even if he did not commit the
sexual assault to avoid the involvement of the police and the
potential impact on their children. Pangan argues the proffered
testimony should have been admitted because it was not hearsay,
and it was relevant to showing that his subsequent apologies
were not admissions of guilt. In addition to these evidentiary
error claims, Pangan contends the trial court erred in imposing
various fines and fees at sentencing without determining his
ability to pay.
Exclusion of Pangan’s Statement to Call the Police
and Have Vanessa D. Examined by a Doctor
We first consider the admissibility of Pangan’s statement
to call the police and have Vanessa D. examined by a doctor when
Johanna confronted him with the sexual assault allegation the
morning of the incident. We conclude the trial court erred in
excluding the proffered testimony because it was not hearsay,
and it was relevant to refuting the People’s theory that Pangan
failed to deny the allegation when he was confronted with it.
At trial, the defense sought to elicit testimony from both
Stephen C. and Johanna that, when Johanna first confronted
11
Pangan in the garage the morning of the incident, Pangan
initially responded to Vanessa D.’s sexual assault allegation by
stating “call the cops, have her checked out by a doctor.”
The prosecutor first objected to this line of questioning on
hearsay grounds during Stephen C.’s testimony, and the trial
court sustained the objection. In a sidebar conference, the court
rejected defense counsel’s argument that the proffered evidence
was admissible to show Pangan’s then-existing state of mind.
The court stated that “his proclamation that he is innocent or [he]
thought that he’s innocent is still . . . a declaration by him, which
can be offered by an adverse party, but not by him.” The court
also noted that the statement must be relevant to be admissible,
and that “the only relevance of [Pangan’s] state of mind that he
believes he’s not guilty is that he’s not guilty.” Defense counsel
argued the statement was not hearsay because it was not being
offered to prove that Pangan actually “wanted [Vanessa D.] to
go to the cops to be checked out.” The court replied, “The gist
of that conduct is that he wanted her to do things that [are]
consistent with him being innocent. He’s saying, ‘I didn’t do it’
because nobody in their right mind would tell a victim to go to
the cops if they thought they were guilty.”
When Stephen C.’s testimony resumed, the trial court
permitted defense counsel to ask whether Johanna confronted
Pangan the morning of the incident and what her demeanor was
at the time. The court did not allow counsel to ask Stephen C.
what was said during that confrontation.
During Johanna’s testimony, the trial court again
considered the admissibility of Pangan’s statement about calling
the police and having Vanessa D. medically examined. Defense
counsel argued the statement was not hearsay because it was
12
circumstantial evidence of Pangan’s state of mind. While the
court agreed the statement was evidence of Pangan’s state of
mind, it noted that his state of mind “is irrelevant.” The court
explained, “Whether he believes he is guilty or not is of no
moment and that’s what the evidence is. . . . It is circumstantial
evidence [of] his state of mind and his state of mind being that he
is innocent, that he didn’t do it, whether he believes he is
innocent or not, is just not relevant.” The court ruled that
defense counsel could elicit testimony from Johanna that she
confronted Pangan, but not Pangan’s response.
When Johanna’s testimony resumed, defense counsel asked
her, “Did you confront—yes or no, did you confront [Pangan] with
what you heard?” Johanna answered, “Yes, sir.” On cross-
examination, the prosecutor asked Johanna whether it was true
that she “didn’t want the police coming to [her] house.” Johanna
responded that she did not want “that to happen because of the
children, but on that night, [Pangan] told [her], why don’t you
call the police.” The prosecutor objected to Johanna’s response,
and the trial court sustained the objection “as to what [Pangan]
told her.”
Pangan argues the trial court erred in excluding his
statement to Johanna to “call the cops, have [Vanessa D.]
checked out by a doctor” because it was not hearsay, but rather
was a request or command that was not offered to prove the truth
of the matter asserted. Pangan also contends the statement was
relevant to demonstrating his consciousness of innocence because
a guilty person would not have responded to a sexual assault
13
allegation by suggesting that the victim’s claim should be
investigated. The People argue the trial court properly excluded
the statement as inadmissible hearsay because it contained an
implied assertion of fact that Pangan did not commit the sexual
assault. The People further assert that, even if the statement
was nonhearsay, the trial court did not abuse its discretion in
excluding it because any slight probative value of the statement
was substantially outweighed by the potential for prejudice.5
“We review evidentiary rulings, including ultimate rulings
on whether evidence should be excluded as hearsay, for abuse of
discretion.” (People v. Caro (2019) 7 Cal.5th 463, 503.) Hearsay
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.” (Evid. Code, § 1200,
subd. (a).) Unless subject to an exception, hearsay evidence
is inadmissible. (Id., subd. (b).)
A request or command generally is “not hearsay, but
‘simply verbal conduct’ consisting of a proposal to perform an
5 In addition to arguing that the trial court’s ruling was
correct on the merits, the People contend that Pangan forfeited
his claim that the statement did not assert the truth of any fact
because he failed to raise this argument in the trial court. We
disagree. At trial, defense counsel argued that the statement was
not hearsay because it was not being offered to prove the truth of
the matter asserted. This was sufficient to preserve Pangan’s
claim that the statement did not assert the truth of any fact
within the meaning of the hearsay rule. (See People v. Partida
(2005) 37 Cal.4th 428, 436 [as “a general matter, no useful
purpose is served by declining to consider on appeal a claim
that merely restates, under alternative legal principles, a claim
otherwise identical to one that was properly preserved”].)
14
act.” (People v. Cowan (2010) 50 Cal.4th 401, 472.) As our
Supreme Court has explained, we “have often characterized
commands not as hearsay but rather as ‘simply verbal conduct
consisting of a directive that was neither inherently true nor
false.’ ” (People v. Clark (2016) 63 Cal.4th 522, 592; see People
v. Curl (2009) 46 Cal.4th 339, 362 [instruction to get rid of a pair
of boots “was not hearsay but simply verbal conduct consisting of
a directive that was neither inherently true nor false”]; People v.
Jurado (2006) 38 Cal.4th 72, 117 [“request for the gun, by itself,
was not hearsay”].) “Because a request, by itself, does not assert
the truth of any fact, it cannot be offered to prove the truth of the
matter stated.” (Jurado, at p. 117.)
A statement which does not directly declare a mental or
emotional state but is merely circumstantial evidence of the
declarant’s then existing state of mind, is also not hearsay.
(People v. Dalton (2019) 7 Cal.5th 166, 232; People v. Cox (2003)
30 Cal.4th 916, 962, disapproved on another ground in People v.
Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Such evidence “ ‘is not
received for the truth of the matter stated, but rather whether
the statement is true or not, the fact such statement was made
is relevant to a determination of the declarant’s state of mind.’ ”
(Cox, at p. 962.) Circumstantial evidence of a declarant’s state
of mind can be offered for the nonhearsay purpose of showing
consciousness of innocence or guilt. (People v. Cowan, supra,
50 Cal.4th at p. 472; People v. Curl, supra, 46 Cal.4th at p. 362.)6
6 “[C]ase law . . . [citation], describes two different theories
under which statements of a declarant’s present state of mind
can be admitted: (1) as hearsay under the Evidence Code section
1250 exception for the declarant’s present state of mind, and
(2) as nonhearsay circumstantial evidence of a declarant’s state of
15
On the issue of whether Pangan’s statement constituted
inadmissible hearsay, People v. Cowan, supra, 50 Cal.4th 401,
is particularly instructive. In Cowan, defense counsel sought to
introduce evidence that the defendant had offered to “ ‘come down
right now’ ” to speak with a detective about a murder case in
which he was a prime suspect. (Id. at p. 472.) The trial court
excluded the evidence on the ground that it was not probative of
the defendant’s state of mind at the time of the murders and was
therefore not relevant. (Ibid.) On appeal, the defendant argued
the proffered evidence was nonhearsay circumstantial evidence
of his mental state and was relevant to show consciousness of
innocence. (Ibid.) The Supreme Court agreed the defendant’s
offer to speak with the detective “was not hearsay but ‘simply
verbal conduct’ consisting of a proposal to perform an act, and
therefore was ‘neither inherently true nor false.’ [Citation.]
Furthermore, the statement was ‘offered for the nonhearsay
purpose of demonstrating consciousness of’ innocence.” (Ibid.)
Although the Cowan court concluded the proffered
statement was not hearsay, it nevertheless held that the trial
court did not abuse its discretion in excluding such evidence.
(People v. Cowan, supra, 50 Cal.4th at p. 472.) The court cited a
line of cases holding that evidence that the defendant “did not
flee from a crime scene is inadmissible to show consciousness of
innocence, even though such evidence has ‘some “tendency in
mind.” (People v. Clark, supra, 63 Cal.4th at pp. 590–591,
fn. omitted.) In this case, we consider only the latter theory
because Pangan’s statement to “call the cops, have her checked
out by a doctor” did not directly assert his state of mind, but
rather was circumstantial evidence of it.
16
reason” to prove this fact.’ ” (Ibid.) As the court explained, “the
inferences arising from evidence of the absence of flight are
ambiguous because ‘there are plausible reasons why a guilty
person might also refrain from flight,’ such as fear of recapture or
confidence that flight will be unnecessary because there is no
strong proof of guilt. [Citations.] Moreover, such evidence also
creates a ‘substantial danger “of confusing the issues, or of
misleading the jury.” ’ ” (Id. at pp. 472–473.)
The Cowen court applied the same reasoning to the
defendant’s offer to speak to the police, stating that “other
consciousness of innocence evidence, such as defendant’s offer
here, although relevant, properly may be excluded on the ground
that its slight probative value is outweighed by the risk of
confusing the issues.” (People v. Cowan, supra, 50 Cal.4th at
p. 473.) The court observed that there were “numerous plausible
reasons why a guilty person might offer to talk to the police,”
such as a desire to appear innocent or a desire to lie to the police
to deflect suspicion or to present a false alibi. (Ibid.) The court
concluded that “[a]gainst such slight probative value, the risk of
confusing the issues or of delaying the trial is strong,
since . . . the prosecution would have to be given the opportunity
to explain the circumstances surrounding the defendant’s offer
and to present evidence negating an inference of innocence.”
(Ibid.)
Like the proffered evidence in Cowan, Pangan’s statement
to “call the cops, have [Vanessa D.] checked out by a doctor” was
not hearsay. Rather, the statement was “ ‘ verbal conduct’ ”
consisting of a directive or request to perform an act, and thus,
was “ ‘neither inherently true nor false.’ ” (People v. Cowan,
supra, 50 Cal.4th at p. 472.) Moreover, Pangan offered the
17
statement as circumstantial evidence of his state of mind at the
time Johanna confronted him in the garage with Vanessa D.’s
allegation. In particular, the defense sought to introduce the
statement to support an inference that Pangan was innocent
because a guilty person would not respond to a sexual assault
accusation by proposing the involvement of the police or a
forensic exam of the victim. Therefore, as in Cowan, the
statement was “ ‘offered for the nonhearsay purpose of
demonstrating consciousness of’ innocence.” (Ibid.)
As the Supreme Court observed in Cowan, even if
nonhearsay, consciousness of innocence evidence is subject
to exclusion under Evidence Code section 352 because the
inferences arising from such evidence are ambiguous, and any
minimal probative value may be outweighed by the risk of
confusing the jury or causing an undue consumption of time.
(People v. Cowan, supra, 50 Cal.4th at pp. 472–473.) Here, there
are plausible reasons why a guilty person would have responded
to a sexual assault accusation by saying to call the police and
have the victim submit to a forensic exam. Pangan may have
wished to deflect suspicion from himself and appear innocent
in the eyes of his wife, who was panicked and crying as she
confronted Pangan with Vanessa D.’s allegation. Pangan also
may have been confident that Vanessa D. would not want to
contact the police given her close relationship with his family, or
he may have believed a forensic exam would not yield evidence
directly connecting him to the assault.
Unlike other consciousness of innocence evidence, however,
Pangan’s response when first confronted with the sexual assault
allegation was also relevant to disproving the People’s theory
that his failure to deny the allegation was an admission of guilt.
18
Over a defense objection, the trial court granted the prosecutor’s
request to give the jury an instruction on adoptive admissions.7
The prosecutor’s theory was that Pangan had the opportunity to
deny Vanessa D.’s allegation on three separate occasions: (1) in
his Snapchat message to her; (2) in his subsequent meeting with
Carlos C.; and (3) in the pretext call with Vanessa D. arranged by
the police. The prosecutor asserted that, because Pangan did not
deny the allegation on any of these occasions, the jury could
regard his lack of a denial as an admission.
In her closing argument, the prosecutor highlighted the
adoptive admissions instruction, telling the jury that “this is a
big one that I want you to really focus on.” In describing the
instruction, the prosecutor stated that “when somebody accuses
you of something heinous, . . . [¶] [a]ny reasonable person would
say, No, I didn’t do that.” She then argued to the jury that
7 The trial court instructed the jury on adoptive admissions
with CALCRIM No. 357: “If you conclude that someone made
a statement outside of court that accused the defendant of the
crime or tended to connect the defendant with the commission of
the crime and the defendant did not deny it, you must decide
whether each of the following is true: [¶] 1. The statement was
made to the defendant or made in his presence; [¶] 2. The
defendant heard and understood the statement; [¶] 3. The
defendant would, under all the circumstances, naturally have
denied the statement if he thought it was not true; [¶] AND [¶]
4. The defendant could have denied it but did not. [¶] If you
decide that all of these requirements have been met, you may
conclude that the defendant admitted the statement was true.
[¶] If you decide that any of these requirements has not been
met, you must not consider either the statement or the
defendant’s response for any purpose.”
19
Pangan had an opportunity on three occasions to say he “didn’t
do this,” and “yet, he never does.” Thus, after successfully
obtaining the exclusion of testimony that Pangan first responded
to Vanessa D.’s sexual assault allegation by stating it should be
investigated, the prosecutor misled the jury by stressing the
purported absence of a response denying the allegation as
evidence of Pangan’s guilt. (See People v. Daggett (1983)
225 Cal.App.3d 751, 758 [prosecutor compounded error in
exclusion of evidence by asking “the jurors to draw an inference
that they might not have drawn if they had heard the evidence
the judge had excluded”]; People v. Varona (1993) 143 Cal.App.3d
566, 570 [prosecutor misled jury when he “not only argued the
‘lack’ of evidence where the defense was ready and willing to
produce it,” but “compounded that tactic by . . . arguing a
falsehood” contradicted by the excluded evidence].)
Given the People’s theory that Pangan’s lack of a denial
could be considered an admission of guilt, his statement to “call
the cops, have [Vanessa D.] checked out by a doctor” was highly
probative of how he actually responded when told of Vanessa D.’s
accusation. The prosecutor implied in her closing argument
that Pangan was silent when confronted with the allegation
that he had sexually assaulted Vanessa D. because he had
multiple opportunities to deny it and he never did. Admission of
the proffered evidence would have shown that Pangan was not in
fact silent, but rather told Johanna the morning of the incident,
when first faced with the accusation, to call the police and have
Vanessa D. submit to a forensic exam. Accordingly, Pangan’s
statement was not merely evidence of consciousness of innocence,
which, as Cowan discussed, is often too ambiguous and
susceptible to conflicting interpretations to be admissible.
20
Rather, Pangan’s statement was also relevant to demonstrating
that, whether guilty or not, he did not fail to deny Vanessa D.’s
sexual assault allegation when he was confronted with it. Under
these circumstances, we conclude the probative value of Pangan’s
response to the sexual assault allegation was not substantially
outweighed by its possible prejudicial effects. The court therefore
erred in excluding the proffered statement.
Exclusion of Johanna’s Statement to Pangan to
Apologize Even if He Was Innocent
We next consider the admissibility of Johanna’s statement
to Pangan to apologize even if he was not guilty because she
wanted to avoid any police involvement and its possible impact
on their children. We conclude the trial court erred in excluding
Johanna’s complete statement because it was not hearsay, and it
was relevant both to explaining Pangan’s subsequent conduct in
apologizing to Vanessa D. and to evaluating Johanna’s
credibility.
During the direct examination of Johanna, defense counsel
sought to introduce the following portion of Johanna’s testimony
from the first trial: “I told [Pangan] to end all this and do not do
anything. If you did not do anything, would you kindly just ask
for forgiveness so we can all forget this. . . . I was thinking that
these people are—will affect my children. I don’t want the police
to go to our house.”
In a sidebar conference, the prosecution objected to the
proffered testimony on hearsay grounds, arguing that the defense
was offering Johanna’s out-of-court statement to Pangan for its
truth. While the court expressed concern that the defense “wants
21
to offer it for that purpose,” it also noted that Johanna’s request
to Pangan to apologize could be admissible for the nonhearsay
purpose of explaining “why [Pangan] did what he did.” The court
stated that it would not allow testimony on Johanna’s reasons for
telling Pangan to apologize, and that it would consider the rest of
the proffered testimony after further research. The court later
indicated that it had ruled that defense counsel could ask
Johanna if she told Pangan to apologize.
On redirect, defense counsel attempted to ask Johanna if
she told Pangan “to end all this even if you did not do [it].” The
trial court interrupted, stating, “We talked about it at side bar.
Did she tell him to ask for forgiveness, something to that effect,
that’s what we talked about.” Defense counsel then asked
Johanna if she told Pangan to “ask for forgiveness.” When
Johanna answered in the affirmative, defense counsel followed up
by asking, “Even if he didn’t do it?’ The trial court sustained the
prosecutor’s objection, noting that they had “talked about this
at side bar” and “[t]hat’s not permitted.”
The following day, outside the presence of the jury, defense
counsel argued that he should have been allowed to ask Johanna
whether she told Pangan to apologize even if he did not commit
the assault. The trial court explained that Johanna’s statement
directing to Pangan to apologize “could be used for the purpose of
explaining his conduct,” but “her motivation as to why she made
that statement” was not admissible. Defense counsel asserted
that a statement to apologize did not have the same meaning as a
statement to apologize even if he did not do it. In response, the
court stated, “But when you provide that evidence as to whether
[he] did it or not, that’s explaining why she was making that
statement and the only purpose of that statement is to explain
22
his conduct and his conduct is that he apologized. [¶] Now, he
may apologize because he did it, he may apologize because he
didn’t do it and he just wants to end the thing. Those are two
explanations and I don’t know which one is correct. The only
one who knows that is the defendant.”
Pangan contends that Johanna’s statement to him to “just
ask for forgiveness” even “[i]f [he] did not do anything” was not
hearsay because it was not offered for the truth of the matter
asserted, but rather to explain how he reacted upon hearing
such statement. Pangan also argues that the statement was
relevant because it had a tendency in reason to prove that his
subsequent apologies were not admissions of guilt, but instead
were made because his wife instructed him to do so. The People
assert that the trial court properly excluded the portion of
Johanna’s statement that Pangan should apologize even if he “did
not do anything” because it was irrelevant, and because any
probative value was substantially outweighed by the probability
that its admission would confuse the issues or mislead the jury.
It is well-established that “an out-of-court statement can be
admitted for the nonhearsay purpose of showing that it imparted
certain information to the hearer, and that the hearer, believing
such information to be true, acted in conformity with such belief.”
(People v. Montes (2014) 58 Cal.4th 809, 863.) “ ‘ “The statement
is not hearsay, since it is the hearer’s reaction to the statement
that is the relevant fact sought to be proved, not the truth of the
matter asserted in the statement.” ’ ” (People v. Livingston (2012)
53 Cal.4th 1145, 1162; accord, People v. Bell (2019) 7 Cal.5th 70,
23
100.) The nonhearsay purpose of the statement “must also be
relevant to an issue in dispute.” (Montes, at p. 863.)
Here, Johanna’s statement to Pangan to apologize even if
he was not guilty was admissible for the nonhearsay purpose of
showing that Pangan reacted to such statement by apologizing to
Vanessa D. and Carlos C. in their subsequent communications.
Pangan’s purpose in making these apologies was directly relevant
to a disputed issue at trial, namely whether or not Pangan was
admitting guilt by apologizing and asking for forgiveness. The
People’s theory was that Pangan’s apologies were admissions of
guilt because an innocent person would not say he was sorry and
ask for forgiveness when accused of a sexual assault. Evidence
that Johanna asked Pangan to apologize even if he “did not do
anything” would tend to show that Pangan was not apologizing
because he was guilty. Rather, Pangan was apologizing because
his wife wanted him “to end all this” regardless of his innocence
or guilt to avoid any police involvement with the family and the
potential negative consequences for their children.
In excluding the words “[i]f you did not do anything” from
the portion of Johanna’s statement that was admitted, the trial
court reasoned that such words explained Johanna’s motive
for making the statement rather than Pangan’s reaction to it.
However, the excised portion of the statement was also relevant
to explaining why Pangan would have apologized and asked for
forgiveness even if he did not commit the sexual assault. As
our Supreme Court has observed, the “ ‘circumstances under
which [an] admission was made are also admissible to place
the statement in context.’ ” (People v. Brown (2014) 59 Cal.4th
86, 104.) Johanna’s request to Pangan to apologize even if he
“did not do anything” placed his subsequent apologies in context
24
by demonstrating that Pangan may have had other reasons for
apologizing that were unrelated to consciousness of guilt.
Additionally, Johanna’s reasons for asking Pangan to
apologize were relevant to assessing the credibility of her
testimony. While the jury heard evidence that Johanna told
Pangan to “ask for forgiveness,” it was precluded from hearing
why she made this request. Without any explanation or context
for Johanna’s statement, the only reasonable inference that could
be drawn from the evidence was that Johanna asked Pangan to
apologize because she believed he was guilty. Admission of the
complete statement, however, would have shown that Johanna
may have had other reasons for telling Pangan to apologize that
had nothing to do with her belief in his innocence or guilt. Such
evidence was probative of Johanna’s state of mind at the time of
the statement and was relevant to her credibility as a witness.
The People contend that the “[i]f you did not do anything”
portion of Johanna’s statement was ambiguous because it was
susceptible to two interpretations. It could express either her
suspicion that Pangan was guilty of the sexual assault, or her
conviction that Pangan was innocent but should apologize for
other reasons. As Pangan correctly points out, however, any
ambiguity in the proffered testimony “ ‘concerns only the weight
of this evidence, not its admissibility, which does not require
complete unambiguity.’ ” (People v. Young (2019) 7 Cal.5th 905,
927.) Admission of Johanna’s complete statement would have
allowed the jury to decide the meaning and import of her words
and how they may have impacted Pangan’s subsequent conduct.
In sum, Johanna’s statement directing Pangan to “ask for
forgiveness” even if he “did not do anything” was not hearsay and
was relevant to a central disputed issue in the case. Moreover,
25
permitting Johanna to testify that she told Pangan to apologize
even if he was innocent and to explain her reasons for doing so
was not likely to confuse the issues, mislead the jury, or require
an undue consumption of time. Under these circumstances, the
trial court erred in excluding the proffered testimony.
The Error in Excluding the Proffered Evidence
Was Not Harmless
The erroneous exclusion of evidence does not require
reversal except where the error caused a miscarriage of justice.
(Evid. Code, § 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.
Watson (1956) 46 Cal.2d 818, 836; see People v. Richardson
(2008) 43 Cal.4th 959, 1001.) Here, the prosecution’s case against
Pangan primarily was comprised of two types of evidence:
(1) Vanessa D.’s clear and consistent identification of Pangan as
her assailant; and (2) Pangan’s subsequent apologies for the
assault, which the prosecution argued were admissions of guilt.
As the People contend on appeal, Vanessa D.’s testimony
provided compelling evidence of Pangan’s guilt. Pangan was not
a stranger to Vanessa D. or a mere acquaintance, but rather was
a close friend with whom she spent a significant amount of time.
Vanessa D. testified unequivocally at trial that she saw Pangan’s
face during the assault, and he was the person who digitally
penetrated her vagina and then orally copulated her. Vanessa D.
also identified Pangan as her assailant when she disclosed the
assault to Carlos C. as they were driving home and to Johanna
after they returned to the Pangan residence.
26
The prosecution did not, however, rely solely on
Vanessa D.’s identification of Pangan to prove he was the
perpetrator. Rather, the prosecution also relied heavily on
Pangan’s failure to deny the sexual assault allegation and his
subsequent apologies to Vanessa D. and Carlos C. to demonstrate
his consciousness of guilt. In her closing argument, the
prosecutor contended that Pangan would have denied the
allegation when confronted with it if he were innocent, and that
he admitted his guilt when he (1) apologized to Vanessa D. in the
Snapchat message, (2) apologized to Carlos C. in their meeting at
the Pangan residence, and (3) apologized to Vanessa D. in their
pretext call. Indeed, the prosecutor argued to the jury that
“[t]hose admissions [were] so over the top” that “it’s his
guilt . . . seething out of him.” The prosecutor also repeatedly
asserted that Pangan would not have apologized if he did not
commit the charged acts. At one point, the prosecutor told the
jury, “Yeah, he’s saying sorry, but think about it. Common sense,
ladies and gentlemen. If you did nothing, what are you sorry
about, right? Why would you say, sorry if you didn’t do it. That
makes no sense at all.” Yet as the prosecutor was well aware,
there was another explanation for why Pangan might have
apologized even if he did nothing wrong, which the jury was
unable to consider due to the erroneous exclusion of Johanna’s
complete statement. The prosecutor was therefore able to
capitalize on the trial court’s error by urging the jurors to draw
an inference about the apologies that they might not have
otherwise drawn had they heard the excluded evidence. (People
v. Daggett, supra, 225 Cal.App.3d at p. 758; People v. Varona,
supra, 143 Cal.App.3d at p. 570.)
27
Additionally, in her closing argument, the prosecutor
argued that Johanna’s statement to Pangan to apologize showed
that she knew “exactly what the defendant did” and was
“trying to . . . diffuse everything.” The prosecutor told the jury:
“But think about it. If your husband or spouse was accused of
something, you would be like, what are you talking about? My
husband didn’t do that. You’re crazy, lady. You know, we let
you into our house. . . . [W]e drink with you, we let you spend the
night. You’re gonna accuse my husband of that? [¶] But
Johanna doesn’t do that, right. She’s on damage control. She’s
trying to make this thing go away.” Hence, after the trial court
erroneously ruled that Johanna’s motivation for directing Pangan
to apologize was irrelevant, the prosecution compounded the
error by arguing that Johanna must have been motivated by her
knowledge of Pangan’s guilt.
The exclusion of the proffered evidence thus allowed the
prosecution to argue to the jury that Pangan only apologized
because he was guilty, and that Johanna only directed Pangan
to apologize because she knew he was guilty. The defense was
unable to refute the prosecution’s theory that his apologies were
admissions of guilt by presenting evidence that Pangan was not
silent when first confronted with the sexual assault accusation,
and that he later apologized because his wife urged him to do so
even if he was innocent. The defense was also unable to present
evidence explaining why Johanna would have told Pangan to
apologize even if she believed he was not guilty.
As Pangan argues on appeal, the trial court’s rulings
had the effect of allowing the jury to hear only part of the story
regarding Pangan’s alleged admissions of guilt. The jury heard
that Johanna confronted Pangan with Vanessa D.’s sexual
28
assault allegation, but did not hear Pangan’s response that the
allegation should be investigated. The prosecutor then
improperly relied on the exclusion of such evidence to argue that
Pangan’s purported failure to deny the allegation when
confronted with it should be regarded as an admission of guilt.
The jury also heard that Johanna told Pangan to apologize to
Vanessa D., but did not hear that Johanna asked Pangan to do so
even if he did nothing wrong to avoid police involvement and the
possible impact on their children. At the first trial, the evidence
of Johanna’s complete statement to Pangan to apologize was
admitted, and the jury was hopelessly deadlocked with five jurors
voting to acquit. Under these circumstances, we conclude there is
a reasonable probability that Pangan would have received a more
favorable outcome at trial if the proffered evidence had been
admitted. Accordingly, Pangan’s judgment of conviction must be
reversed and the matter remanded for a new trial.8
8 In light of this conclusion, we need not consider Pangan’s
argument that the trial court improperly imposed fines and fees
at sentencing without determining his ability to pay.
29
DISPOSITION
The judgment is reversed and the matter is remanded to
the superior court for a new trial consistent with this opinion.
NOT TO BE PUBLISHED.
KALRA, J.*
We concur:
EDMON, P. J.
LAVIN, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
30