People v. Yin CA2/7 ( 2023 )

Filed 1/12/23 P. v. Yin CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B316810
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA082953)
v.
JASON CHEN YIN,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County. William C. Ryan, Judge. Affirmed.
Innocence Legal Team and William P. Daley for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and David F. Glassman, Deputy Attorney
General, for Plaintiff and Respondent.
____________________
Jason Chen Yin was convicted in 2013 of arranging a
meeting with a minor and going to the arranged meeting place to
engage in lewd or lascivious behavior (Pen. Code, § 288.4,
subd. (b))1 and contacting the minor with intent to commit a
sexual offense (§ 288.3, subd. (a)). The trial court denied Yin’s
motion for a new trial after an evidentiary hearing, rejecting the
claim Yin’s defense counsel had provided constitutionally
ineffective representation. We affirmed the ruling denying the
new trial motion and the judgment of conviction. (People v. Yin
(Oct. 14, 2014, B248210) [nonpub. opn.] (Yin I).)
In December 2017, released from prison and no longer on
parole, Yin filed a motion to vacate his convictions under
section 1473.7, subdivision (a)(2), contending new evidence, as set
forth in declarations from four long-time family friends, when
considered with purported errors at trial, established he was not
guilty of the crimes. Following an evidentiary hearing the
superior court denied Yin’s motion, ruling the testimony of the
family friends did not constitute newly discovered evidence and,
even if it did, their testimony, when considered in light of the
overwhelming trial evidence of Yin’s guilt, did not support a
claim of actual innocence.
On appeal Yin argues the superior court impermissibly
limited the evidence presented at the section 1473.7 hearing,
precluding him from pursuing his claim that defense counsel had
1 Statutory references are to this code unless otherwise
stated.
2
been prejudicially ineffective by providing the prosecution a copy
of a confidential psychological evaluation without Yin’s consent.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Yin’s Convictions for Contacting a Minor with Sexual
Intent and Arranging a Meeting for That Purpose
a. The People’s evidence
The evidence at trial established that in the fall of 2010
Amanda G., then 13 years old and living in Boise, Idaho, created
a social media profile with her friend McKenna for a fictional 19-
or 20-year-old woman named Amaya who worked at Disneyland.
McKenna, using the Amaya profile, chatted online with Yin,
whose profile showed his age as 23. McKenna introduced
Amanda and Yin to each other online after Amanda told
McKenna she was bored.
Amanda and Yin began chatting on November 8, 2010.
Their chats quickly became sexually graphic. Amanda offered to
send Yin nude pictures but never did notwithstanding Yin’s
repeated requests. Their chats often referred to Amanda’s age.
In a chat dated November 10, 2010 Yin stated, “[T]he likelihood
of me actually coming to your house to have sex with you at 13 is
basically 0.” In another chat in which Yin encouraged Amanda to
take nude pictures, he said, “Well I guess nothing is illegal if no
one finds out.” In a chat on November 15, 2010 Amanda
indicated she was going to create a new profile, and Yin told her
3
to use a legal age like 18.2 Yin also told Amanda in that chat to
make sure she “delete[d] the evidence.”
At some point Amanda told Yin that McKenna had
fabricated the Amaya profile. In early December 2010 Amanda’s
mother called the police after she had discovered the chats
between Amanda and Yin. Amanda advised Yin about this even
though she was told not to contact him again.
In early December 2010 Detective Tim Brady of the Boise
Police Department began impersonating Amanda online and
chatting with Yin. For the next several months Yin and
“Amanda” continued their sexual chat. (We refer to a detective
chatting in Amanda’s voice as Amanda for ease of reference.) In
early February 2011 Amanda told Yin her mother was taking her
to Los Angeles for spring break and she would have time alone at
the hotel. Yin asked whether they could “fuck there” and posed
logistical questions like whether Amanda could get “the pill” or
whether he should bring condoms. Yin wrote, “If something bad
between us happen[s] though you won’t use this to blackmail me
right?” He also wrote, “I[’]m scared mostly because of the age.
It’d be better if you were legal . . . so nothing bad would happen
at all.” Through February and March 2011 Amanda and Yin
continued to chat about whether Yin would meet Amanda in
Los Angeles.
On March 18, 2011 Amanda gave Yin the address of a hotel
in Glendale. They chatted for the next several days about
arrangements (for example, birth control and security cameras at
the hotel) and having sex. On March 23, 2011 Los Angeles Police
2 Amanda used her real age of 13 for the new profile with a
different screen name and interacted with Yin under that screen
name.
4
Detective Charles Schlund took over chatting as Amanda. After
Amanda asked whether Yin would meet her the following day,
Yin wrote, “Not sure yet. Most likely. I want to fuck you so bad
right now.” They continued chatting, with Amanda encouraging
Yin to meet her. Amanda asked if Yin would bring her flowers or
a teddy bear.
On March 24, 2011 an adult undercover officer pretending
to be Amanda called Yin to find out if he was going to show up
and told Yin she was in room 309. Yin said he would be there
after he picked up some things. Just after 2:00 p.m. Yin arrived
and was detained and searched; he had a teddy bear, condoms
and lubricant.
Following his arrest Yin signed a written statement that he
believed the person he was coming to meet was 13 years old: “I
came here to help this 13-year-old girl. Wasn’t certain her age,
but that’s the age I believe. Also, the things in the bag were a
distraction. I had no intention of sex and was going to use them
as a teaching tool. I also brought my notes so I could study for a
while. The teddy bear was a gift to her. The girl was troubled
and had a single mom and there was no dad. I was only
intending to counsel her.”
b. Yin’s testimony
Yin testified in his defense that he thought Amanda was
Amaya—part of her role play—and Amaya had led him to believe
she was an adult. If she was a minor, he insisted, he was not
going to have a sexual encounter with her.
Yin, who was 23 years old in the fall of 2010, told the jury
his life since high school had been devoted to studying. He had
received an academic scholarship from the University of
Southern California and had bachelor’s degrees in biology and
5
neuroscience. Shy and unable to relate well to people, he had no
friends or girlfriends, did not engage in social activities and had
never had any sexual experience.
Yin met Amanda online through McKenna pretending to be
Amaya. Amaya’s profile indicated she was 20 years old and
worked at Disneyland. Yin and Amaya chatted about her job and
engaged in cybersex. Amanda “randomly showed up one day” in
their chats and then contacted Yin online. At some point Yin saw
Amanda’s age on her profile. He testified he should have stopped
chatting with her as soon as he saw that, but did not because he
thought Amaya and Amanda “might be the same person, she
might be an adult.” In Yin’s experience it was common for people
to lie online about everything, including their age. When Yin
referred to Amanda’s age as 13 during various chats, he was
simply “follow[ing] along with what her topic was.”
Yin never suggested he and Amanda meet, and he was
surprised and scared when she suggested it. He had never met
anyone in person whom he had chatted with online and did not
want to do so: “It was just to interact with people.” And, Yin was
not sure of Amanda’s age: “If she was a minor, I would look
stupid. I don’t want to have sex with minors. If she is an adult, I
have to follow through and I don’t know how to do that either.”
Yin expressed his reluctance by telling Amanda he was busy and
did not know if he would be able to meet her. Yin testified, “And
in the end [the detectives] pretty much played with my emotions
and I finally decided to go.” When he showed up to meet
Amanda, he brought his school books so he could study if it did
not work out.
During cross-examination the prosecutor informed the
court at a sidebar conference she intended to impeach Yin with
6
statements he had made during a voluntary evaluation by
Dr. Omar Minwalla, a psychologist with The Institute for Sexual
Health, that contradicted his testimony he had never engaged in
sex and had not met anyone in person after first meeting online.
According to Yin’s trial counsel, James Blatt, the confidential
report had been provided to the prosecution when he was trying
to negotiate a probationary disposition. The prosecutor
acknowledged the report could not be used in her case-in-chief,
but argued it could be used for impeachment. The court then
asked, “[I]s there any disagreement? I think everybody agrees
that it’s impeachment and so you can ask about it.” Blatt did not
object.
The prosecutor asked Yin whether he had told
Dr. Minwalla he had met two adult women in person after first
meeting them online and had engaged in sexual activity with
them. Yin testified, “I was too embarrassed that I had no contact
with anybody, so I made those things up.” Yin further testified
he did not recall telling Dr. Minwalla he had engaged in sexually
explicit chatting with 10 girls who said they were 16 or 17 years
old and it was not correct in any event. He also did not recall
telling Dr. Minwalla that twice girls he believed might be 17
years old had masturbated for him via a live webcam feed. When
asked whether he had told Dr. Minwalla he probably would have
sex with a 14-year-old girl if she “was a ten,” Yin testified he had
joked with Dr. Minwalla that he was not interested in a 13- or 14-
year-old girl unless “she looks like Jessica Alba or something,
maybe. . . . Ten means like Jessica Alba or something, which I
don’t think a 13- or 14-year old could look like Jessica Alba. That
is what I meant by that statement.”
7
Asked about the written statement he had signed following
his arrest in which he admitted he believed he was meeting a 13-
year-old girl, Yin explained it made no sense to tell the police he
had come to see a 20-year-old girl because he knew she was not
20 when he encountered the police at the hotel. Additionally, he
explained, the police “pretty much told me what to write.”
2. The Motion for a New Trial
After the jury found him guilty on both charges, Yin,
represented by new retained counsel, moved for a new trial on
the ground he had received ineffective assistance from Blatt, who
allegedly engaged in unethical conduct and coerced him to testify
untruthfully. Yin asserted he had explained that role players
create elaborate stories about their characters and staying in
character at all times is essential to keep people interested and
engaged. Yin believed Amanda was a role-play character of 20-
year-old Amaya, of whom he had seen several pictures, and never
suspected Amanda and McKenna had created Amaya. Yin also
told Blatt he had gone to great lengths to verify the ages of
two other women, Chezea Edgar and Katrina Gordon, he had met
online before engaging in sexual activity with them. Yin
provided contact information for Edgar and Gordon, a detailed
description of the steps he had purportedly taken to verify their
ages and contact information for friends who could corroborate
portions of what he said. According to Yin and his parents, who
had retained Blatt and were involved in discussions with him
about Yin’s defense, Blatt dismissed Yin’s explanation as too
complicated to present to a jury. The Yins, however, believed
Yin’s explanation and pattern of age verification were essential to
his defense.
8
According to Yin, Blatt told him what to say when he
testified, specifically to appear naive and sexually inexperienced.
In his declaration Yin stated Blatt told him his theory of the case
for the first time two days before trial: “I was to be totally
sexually naive (a lie). I was to never have had sex (a lie). I was
to act humble in front of the jury. I was to have no[] friends (a
lie), buddies (a lie), or social activities (a lie). I was to only study
(a lie). I was to have never actually met any person online and
then met them in person (a lie). . . . If when I got to the hotel,
there had been a 13 year old girl there, I would not have done
anything (true). If when I got to the hotel, there was an adult
female there, I was to say I was too inexperienced to know what
to do with her (a lie). . . . I knew that I had told Dr. Minwalla
about the two women I had met on the Internet and had sex with
one of them. Mr. Blatt said I should say that I told this to
Dr. Minwalla because I was embarrassed I was a virgin.”
At the hearing on the new trial motion Blatt testified he did
not call Edgar or Gordon in Yin’s defense because they had failed
to corroborate Yin’s contention he verified their ages before
engaging in any sexual activity: “[Yin] indicated to me that he
specifically requested their identification, and these witnesses
were adamant that there was never an effort made to find out
their true age.” Blatt recalled that Yin’s parents were
dissatisfied with the information Blatt’s investigator had learned
when interviewing Edgar and Gordon, which directly
contradicted Yin’s description of the events, and wanted them re-
interviewed, which Blatt felt was an attempt to coerce favorable
statements from them. Blatt also testified he questioned whether
Yin had actually had sexual relations with either woman but
believed, even if he did, it did not support the defense theory that
9
Yin did not intend to have sex with Amanda if she could not
verify she was at least 18 years old.
Blatt advised the Yins he believed there was a high
likelihood of a conviction and a state prison sentence based on the
final chats that made it clear Yin knew Amanda’s age and was
trying to have a visit without being detected. Blatt testified he
was able to obtain a no-state-prison offer from the People based,
in part, on the psychologist’s report he had obtained. Yin,
however, refused to consider the offer as long as there was a
registration requirement.
The court denied the motion for new trial. The court found
Yin lacked credibility based on his demeanor and trial testimony.
In contrast, the court found Blatt “extremely credible. He gave
sound reasoning for his decisions, strategic decisions at trial, and
he based those sound decisions on the information that he was
provided at that time and what he believed to be in the best
interest of the case.”3
3. Yin’s Direct Appeal
On appeal Yin argued the trial court erred in denying his
motion for a new trial based on Blatt’s ineffective representation
in preparing for and defending him at trial. Applying the
required deferential standard of review to the trial court’s
express and implied findings and accepting its credibility
determinations, we affirmed the ruling Blatt had acted
reasonably in defending Yin. (Yin I, supra, B248210.) We
explained, “Blatt made a strategic decision to present only
3 After denying the new trial motion the trial court sentenced
Yin to an aggregate state prison term of three years four months
(with 480 days of custody credits).
10
limited evidence of online role playing and Yin’s purported belief
that Amanda was a fictional minor created by adult Amaya
rather than the other way around. Instead, he emphasized Yin’s
immaturity and sexual inexperience to argue Yin did not have
the intent to commit a sexual act with anyone, let alone a minor.
Blatt elected to defend Yin this way because he did not believe,
nor did Edgar or Gordon corroborate, Yin’s explanation he had
intended to verify Amanda’s actual age before engaging in any
sexual activity or that Yin had previously had sex with
individuals he had met online but only after confirming they were
adults. Blatt also thought a more detailed age play/role-play-
within-a-role-play defense was too complicated for the jury to
understand.”
Although additional investigation by Yin’s new, posttrial
counsel suggested the two women may have been more helpful
than Blatt believed based on the report from his investigator, we
held substantial evidence supported the trial court’s finding that
Blatt’s pretrial investigation was adequate: “While the
investigator’s report was cursory, there was nothing on its face to
alert Blatt that [the investigator] had failed to ask additional
questions that may have corroborated portions of Yin’s version of
events.”
More troublesome, we observed, was Blatt’s apparent
failure to fully appreciate the potential negative impact of
information in Dr. Minwalla’s report when used to impeach Yin’s
effort to portray himself as a naive, socially awkward young man
without any prior sexual experience whatsoever and, as a result,
to undermine his credibility in general. (We noted the trial court,
in denying the new trial motion, necessarily accepted that Blatt
sincerely doubted Yin had ever had sex with anyone, including
11
Edgar and Gordon, and did not knowingly encourage him to lie
about his social life or sexual history.) Yin’s posttrial declaration
stating Blatt advised him to deflect questions about these
inconsistencies by claiming he was embarrassed by his
inexperience and lied to Dr. Minwalla about past sexual episodes
demonstrated that Blatt anticipated possible cross-examination
based on the report. But given the inflammatory nature of some
of Yin’s comments (for example, that he would have sex with a
13-year-old if she was sufficiently attractive), Blatt could have
done more, we wrote, at least raising the report during his direct
examination of Yin and presenting the explanation for the
inconsistencies in a more forthright manner.
Nonetheless, even if Blatt’s handling of the report fell
below an objective standard of reasonableness based on
prevailing professional norms, we held, there was no prejudice:
“Given the strength of the evidence against Yin—his admission to
the police following his arrest that he came to the hotel to ‘help
this 13-year-old girl’; the repeated references to Amanda’s age
during their Internet chats; and the elaborate preparations for
what was intended to be a real-life meeting, not continued role
play, that included extensive planning to avoid detection by
Amanda’s mother or security cameras and concluded with Yin’s
arrival at the arranged meeting place with a teddy bear and
lubricants—it is not reasonably probable that a different
approach to the Minwalla report would have led to a result more
favorable to Yin.” (Yin I, supra, B248210.)
Our analysis of this aspect of Yin’s claim of ineffective
assistance of counsel assumed the People were entitled to use the
report to impeach Yin at trial and, as discussed, evaluated the
quality of, and absence of prejudice from, Blatt’s treatment of
12
that evidence. In a footnote we pointed out that Yin’s newly
retained counsel during the evidentiary hearing on the new trial
motion had not asked Blatt about his decision to provide the
report to the prosecutor in an attempt to negotiate an acceptable
pretrial resolution of the case, including whether Blatt notified
Yin in advance or discussed with the prosecutor potential use by
the People of the report at trial if there was no negotiated plea
agreement. In the absence of any testimony on these points from
Blatt, we explained, Yin’s claim Blatt’s disclosure of the report
constituted ineffective assistance of counsel was not properly
resolved on direct appeal. (Yin I, supra, B248210, fn. 11.)
4. Yin’s Petition for Writ of Habeas Corpus
In February 2015 Yin filed a petition for a writ of habeas
corpus, arguing Blatt’s disclosure of Dr. Minwalla’s report to the
prosecutor constituted ineffective assistance of counsel. The
petition was considered by Judge Michael Carter, who had
presided at Yin’s trial. After reviewing the petition and the trial
transcript, the court denied the petition for failure to show a
prima facie case for relief.
In his ruling, filed July 6, 2015, Judge Carter, after noting
the issue had been addressed at trial and again in Yin’s motion
for a new trial, explained the report had been disclosed to help
facilitate a favorable plea deal and with the understanding that
the People would not use the contents of the report against Yin in
their case-in-chief. As discussed at a sidebar conference, “It was
not until the petitioner chose to lie on cross-examination that the
report became admissible as impeachment.”
The court continued, “During the motion for new trial, trial
counsel was examined on the issue of the disclosure of the report.
Trial counsel indicated that [he had] discussed the [strategy] of
13
using the petitioner’s background and upbring as mitigation.
This discussion was with the petitioner and his parents. The
discussion included the need to turn over the information to the
Court and the People for that limited purpose.” Because there
was no showing of prejudice from Blatt’s disclosure of the report,
the petition was denied.
Yin’s section 1473.7 motion stated he had been discharged
from parole by the time the superior court denied his petition.
Because he was no longer in actual or constructive criminal
custody, Yin explained, he had no standing to seek relief from
this court following the superior court’s denial of his habeas
petition.
5. Yin’s Section 1473.7 Motion
Enacted in 2016 by Assembly Bill No. 813 (2015-2016 Reg.
Sess.) (Stats. 2016, ch. 739, § 1), effective January 1, 2017,
section 1473.7 authorizes a person no longer in criminal custody
to file a motion to vacate a conviction on specified grounds,
including newly discovered evidence of actual innocence
(§ 1473.7, subd. (a)(2)). On December 27, 2017 Yin filed a motion,
and on January 23, 2018 an amended motion, under
section 1473.7, subdivision (a)(2), attaching declarations from
four individuals—friends of Yin and his family—who had not
testified at trial. Yin argued this new evidence, when considered
with the errors at trial (in particular, Blatt’s purported
ineffective assistance in providing Dr. Minwalla’s report to the
prosecutor), established he was not guilty of the crimes for which
he had been convicted.
After receiving an opposition from the People and a reply
memorandum from Yin, the court set the matter for an
evidentiary hearing as required by section 1473.7,
14
subdivision (d), but limited the scope of evidence to be presented
to the issue of newly discovered evidence of actual innocence.4
The court rejected Yin’s contention he was entitled to have his
claim that Blatt provided ineffective assistance by disclosing the
psychologist’s report to the prosecutor determined as part of the
evaluation of the new evidence submitted in support of the
motion to vacate the convictions. Acknowledging that
section 1473.7, subdivisions (a)(2) and (e)(1), provide the court
shall grant the motion if the moving party establishes newly
discovered evidence of actual innocence exists requiring the
convictions be vacated “as a matter of law or in the interests of
justice,” the court ruled “the phrase ‘in the interests of justice’ is
not a freestanding catch-all authorization to bring any claim that
a defendant believes should be resolved in the interests of
justice. . . . [I]t is clear that the phrase ‘in the interests of justice’
relates directly to newly discovered evidence of actual innocence
that requires vacation of the conviction or sentence.”
At the court’s direction Yin presented as witnesses at the
September 2, 2021 evidentiary hearing the four individuals who
had provided declarations in support of his motion. Mark Fiji, a
close friend of Yin’s family, testified that in early 2011 Yin told
him he was chatting with someone online. Yin said the person
was 19 years old but added you could not be sure about someone
you met online. David Zhang, a family friend who had known
Yin since late elementary school or middle school, testified that in
March 2011 Yin told him he was speaking online with a 19-year-
old girl, mentioned she was showing signs of depression and said
4 Yin’s Penal Code section 1473.7 motion was heard by Judge
William C. Ryan, after Yin challenged Judge Carter pursuant to
Code of Civil Procedure section 170.6.
15
he might go and see her in person if he felt that was something
he should do. Jamie Lyn Fong and Yvonna-Marie Barrientos,
both acquainted with Yin while they were all growing up,
testified to Yin’s general character, stating he never made them
feel uncomfortable or acted inappropriately with them. All four
of the witnesses indicated they were not very familiar with Yin’s
dating life and were surprised that he had been convicted of sex
crimes involving a minor.
The court received into evidence the People’s exhibits,
which included Amanda G.’s, Detective Brady’s and
Detective Schlund’s trial testimony.
After taking the matter under submission, the superior
court denied Yin’s motion. The court ruled none of the testimony
constituted newly discovered evidence of actual innocence within
the meaning of section 1473.7, subdivision (a)(2): “The witnesses’
familiarity with [Yin’s] character and their limited knowledge of
his personal life[are] not newly discovered evidence as [Yin] knew
these friends and his relationships with them for many years.”
Even if it were properly considered as newly discovered
evidence, the court also ruled, the evidence did not support Yin’s
claim of actual innocence: “Aside from the evidence from his
witnesses that [Yin] was kind and helpful in academic and
professional advice and the surprise that he was convicted, the
testimony from all four witnesses offered very light insight into
[Yin’s] character, specifically as it related to dating, the opposite
sex, his past or present love interests, or any overarching morals
or principles [Yin] lived by.” In contrast, the court explained, the
trial evidence of Yin’s guilt was overwhelming. Nor was there
any basis for finding Blatt ineffective for failing to call these
witnesses at trial: “There was no evidence presented to show
16
that [Yin] ever told trial counsel about these four character
witnesses.”
Yin filed a timely notice of appeal.
DISCUSSION
Section 1473.7, subdivision (a)(2), authorizes a person no
longer in criminal custody to file a motion to vacate his or her
conviction if “[n]ewly discovered evidence of actual innocence
exists that requires vacation of the conviction . . . as a matter of
law or in the interests of justice.” Section 1473.7,
subdivision (e)(1), places on the moving party the burden of
establishing by a preponderance of the evidence the existence of
the grounds for relief.
As Yin emphasizes in his appellate briefs, section 1473.7
was enacted in 2016 at the same time as the Legislature
amended section 1473, specifying nonexclusive grounds for
habeas corpus relief, by adding subdivision (b)(3), which provides
a petition for writ of habeas corpus may be pursued if “[n]ew
evidence exists that is credible, material, presented without
substantial delay, and of such decisive force and value that it
would have more likely than not changed the outcome of trial.”
(§ 1473, subd. (b)(3)(A).)5 Prior to this amendment a petitioner
was entitled to habeas corpus relief on the ground of newly
5 Assembly Bill No. 813 (2015-2016 Reg. Sess.) (Stats. 2016,
ch. 739, § 1), which enacted section 1473.7, passed both houses of
the Legislature on August 31, 2016 and was signed by the
Governor on September 28, 2016. Senate Bill No. 1134 (2015-
2016 Reg. Sess.) (Stats. 2016, ch. 785, § 1), which amended
section 1473, passed both houses of the Legislature on August 25,
2016, and was also signed by the Governor on September 28,
2016.
17
discovered evidence only if the new evidence “cast[] fundamental
doubt on the accuracy and reliability of the proceedings.” (In re
Lawley (2008) 42 Cal.4th 1231, 1239, internal quotation marks
omitted; accord, In re Hall (1981) 30 Cal.3d 408, 423.)
As the court of appeal explained in In re Sagin (2019)
39 Cal.App.5th 570, 579-580, the principal case relied upon by
Yin, “That former standard required a petitioner to conclusively
establish innocence. [Citation.] Habeas corpus relief was thus
previously reserved for those cases where newly discovered
evidence essentially on its own proved a petitioner did not
commit the crime. The amendment to Penal Code section 1473
changed that. A petitioner no longer has to prove innocence but
rather must show that the new evidence—viewed in relation to
the evidence actually presented at trial—would raise a
reasonable doubt as to guilt. The statute creates a sliding scale:
in a case where the evidence of guilt presented at trial was
overwhelming, only the most compelling new evidence will
provide a basis for habeas corpus relief; on the other hand, if the
trial was close, the new evidence need not point so conclusively to
innocence to tip the scales in favor of the petitioner.”
(Fn. omitted.)
In section 1473.7, subdivision (a)(2), the Legislature
specified a successful motion to vacate a conviction must present
newly discovered evidence of actual innocence—not, as it did in
new section 1473, subdivision (b)(3), that relief is available if
there is newly discovered evidence more likely than not to have
changed the outcome of trial (that is, persuaded at least one juror
to vote not guilty). Notwithstanding that very different language
in two contemporaneously enacted pieces of legislation, Yin
contends inclusion of the “interests of justice” standard in
18
section 1473.7, subdivision (a)(2), requires an analysis even
broader than in habeas proceedings. The interests of justice, he
asserts, “necessarily includes all of the trial, including significant
errors by the defense.” Thus, Yin argues, it was error for the
superior court not to consider the unresolved ineffective
assistance issue and determine whether a more favorable trial
outcome would have been likely if the new evidence by his four
family friends had been presented and Dr. Minwalla’s report had
never been turned over to the prosecutor. He urges us to reverse
the order denying his motion and remand for a new hearing to
include testimony concerning Blatt’s purported ineffective
assistance, as well as the new evidence previously presented.
Given the significant difference in statutory language, it
requires a considerable analytic leap to conclude the Legislature
intended section 1473.7, subdivision (a)(2), to serve as a vehicle
for a person no longer in criminal custody to effectively replicate
a habeas corpus proceeding under section 1473,
subdivision (b)(3)(A), allowing litigation (or relitigation) of
purported trial errors, provided only that some newly discovered
evidence is presented that might have supported the defense
theory of the case. (See Romano v. Mercury Ins. Co. (2005)
128 Cal.App.4th 1333, 1343 [“‘[w]here a statute referring to
one subject contains a critical word or phrase, omission of that
word or phrase from a similar statute on the same subject
generally shows a different legislative intent’”]; Campbell v. Zolin
(1995) 33 Cal.App.4th 489, 497 [“[o]rdinarily, where the
Legislature uses a different word or phrase in one part of a
statute than it does in other sections or in a similar statute
concerning a related subject, it must be presumed that the
Legislature intended a different meaning”].) Certainly nothing in
19
the legislative history of Assembly Bill No. 813 (2015-2016 Reg.
Sess.) reveals such an intent or, for that matter, supports any
interpretation of section 1473.7, subdivision (a)(2), different from
the plain meaning of the phrase “newly discovered evidence of
actual innocence.” (See Mutual Life Ins. Co. v. City of
Los Angeles (1990) 50 Cal.3d 402, 412 [“‘“[a]n intent that finds no
expression in the words of the statute cannot be found to exist”’”];
La Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461, 476
[same].)
We need not resolve that issue, however. As the superior
court ruled, Yin failed to present any “newly discovered
evidence,” and thus failed to demonstrate at the threshold his
eligibility for relief under section 1473.7, subdivision (a)(2). To be
sure, section 1473.7 does not define the phrase “newly discovered
evidence.” But it is defined in section 1473, subdivision (b)(3)(B),
as “evidence that has been discovered after trial, that could not
have been discovered prior to trial by the exercise of due
diligence, and is admissible and not merely cumulative,
corroborative, collateral, or impeaching,” a definition that is
consistent with others in the Penal Code. (See People v. Perez
(2020) 47 Cal.App.5th 994, 999 [“newly discovered evidence” for
purposes of section 1473.7, subdivision (a)(2), is properly
understood as the phrase has been consistently defined elsewhere
in the Penal Code, including sections 1181, subdivision 8, and
1473.6, subdivision (b), as evidence “that with reasonable
diligence could not have been discovered earlier,” italics omitted];
see also In re Hardy (2007) 41 Cal.4th 977, 1016 [in the context of
a claim that habeas corpus relief is available when newly
discovered evidence demonstrates actual innocence, “‘“newly
20
discovered evidence” is evidence that could not have been
discovered with reasonable diligence prior to judgment’”].)
Testimony from two family friends concerning
conversations Yin had with them in early 2011 prior to his arrest
and from two others regarding his general character falls far
short of satisfying that requirement. As the trial court observed,
Yin was aware of these individuals and his interactions with
them for many years, including at the time of trial.
In his moving papers Yin consistently referred to his
friends’ testimony as “new evidence,” never as “newly discovered
evidence,” suggesting he recognized (though not admitting) he
could not carry his initial burden in moving for relief under
section 1473.7, subdivision (a)(2). Indeed, on appeal, even though
the first ground for the superior court’s ruling denying his motion
was the absence of newly discovered evidence, Yin still does not
attempt to explain why his friends’ testimony could not have been
discovered earlier, let alone why his failure to present “newly
discovered,” not simply “new,” evidence does not necessarily
defeat his motion. (See People v. Perez, supra, 47 Cal.App.5th at
p. 1000 [“[d]efendant did not put forward any newly discovered
evidence, and therefore has failed to demonstrate eligibility for
relief under section 1473.7”].) Yin’s motion was properly denied.
21
DISPOSITION
The postjudgment order denying the motion is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
HOWARD, J.*
* Judge of the Marin County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
22