People v. Yamamoto CA4/1 ( 2023 )

Filed 7/19/23 P. v. Yamamoto CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079669
Plaintiff and Respondent,
v. (Super. Ct. No. SCS310830 )
EARLE DANIEL YAMAMOTO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Enrique E. Camarena, Judge. Affirmed in part; reversed in part; remanded
with directions.
David W. Beaudreau, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Collette C. Cavalier, Warren Williams, Kathryn Kirschbaum, and Ksenia
Gracheva, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Earle Daniel Yamamoto of three counts of forcible rape
(Pen. Code,1 § 261, subd. (a)(2); counts 1, 4, and 10); four counts of forcible
oral copulation (§ 287, subd. (c)(2)(A); counts 2, 5, 6, and 8); three counts of
sexual penetration by use of force (§ 289, subd. (a); counts 3, 7, and 13);
contact with a minor with intent to commit a sexual offense (§ 288.3,
subd. (a); count 9); sodomy by use of force (§ 286, subd. (c)(2)(A); count 11);
lewd act upon a child 14 or 15 years of age (§ 288, subd. (c)(1); count 14);
incest (§ 285; count 15); and two counts of unlawful sexual intercourse with a
minor more than three years younger (§ 261.5, subd. (c); counts 28 and 29).
The jury found Yamamoto not guilty of one count of forcible oral copulation
(§ 287, subd. (c)(2)(A); count 12) and one count of oral copulation of a person
under 18 (§ 287, subd. (b)(1); count 26).2
The court sentenced Yamamoto to prison for a total of 80 years,
consisting of the upper term of eight years for count 1; the middle term of six
years for each of counts 2 and 3; the upper term of eight years for count 4; the
middle term of six years for each of counts 5, 6, and 7; the upper term of eight
years for count 8; the upper term of eight years for count 10; and the middle
term of six years for each of counts 11 and 13. The court imposed
punishment for all the remaining counts under section 1170; the upper term
of four years for count 9; one-third the midterm (eight months) for count 14;
and two consecutive middle terms (eight months each) for counts 28 and 29.
The court also selected the upper term of three years for count 15, which it
stayed per section 654.
1 Statutory references are to the Penal Code unless otherwise specified.
2 The jury also did not reach a verdict on counts 16 through 25, and 27,
which constituted lesser included offenses.
2
Yamamoto appeals, contending his trial counsel was constitutionally
ineffective because he did not object to the admission of Yamamoto’s
confession, certain testimonial evidence, and evidence of prior bad acts. In
addition, Yamamoto maintains that cumulative errors warrant reversal.
Yamamoto also maintains this matter must be remanded for resentencing
under recent changes to the law. Finally, he argues that the abstract of
judgment must be modified to accurately reflect the assessments imposed at
sentencing.
We agree that this matter must be remanded to allow the superior
court to resentence Yamamoto under recent changes to the law. In addition,
as the parties concede, any amended abstract of judgment must correctly
state the amount of assessments imposed. In all other respects, we affirm
the judgment.
FACTUAL BACKGROUND
Prosecution
Crimes Involving Yamamoto’s Niece
Yamamoto lived with his wife E.Y. and their six children. In 2012, E.Y.
and Yamamoto’s niece, J.R., moved into the family home so that she could
attend the school nearby. She was 16 years old and a sophomore in high
school. Yamamoto and E.Y. became her legal guardians, and she stayed with
the family for about one year before moving out.
In April 2013, J.R. mentioned during a family dinner that she was
planning to clean the bathroom and take a shower. After dinner, she did
some chores before going upstairs. In the bathroom, she found a cell phone
hidden inside of a toothbrush holder, with the phone camera pointing
towards the shower and recording. The cell phone was inside a black sock.
J.R. took the phone out of the sock and replayed the video, which showed
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Yamamoto putting it into the toothbrush holder. J.R. was scared and deleted
the video. She messaged her sister and her friend to tell them about what
had happened.
Within a few months, J.R. found another cell phone in the bedroom
that she shared with Yamamoto’s daughter, M.Y. After coming out of the
shower, she noticed the cell phone hidden among M.Y.’s stuffed animals. J.R.
viewed the video on the cell phone and again saw Yamamoto starting the
recording and placing the phone there. J.R. deleted the video. She did not
confront her uncle or tell E.Y. about the videos.
J.R. was still living with Yamamoto and E.Y. when Yamamoto began
asking her about her sex life and gave her condoms. In 2013, J.R. moved out
of her aunt and uncle’s home and went to live with her older sister.
Yamamoto continued to send her text messages, and J.R. would sometimes
see Yamamoto after school.
After talking to J.R. about “who he can mess around with,” including
family members and friends, Yamamoto asked J.R. to have sex with him.
J.R. agreed because she was afraid to say no and did not know what else to
do.
Yamamoto asked J.R. to go to the gym with him and picked her up at
her sister’s house. J.R. knew that they were not going to the gym, but that
Yamamoto was planning to take her somewhere to have sex. Yamamoto
drove to his office. No one else was at the office when they arrived.
Yamamoto took J.R. into an empty room and had sex with her. J.R. was
17 years old at the time.
Yamamoto and J.R. had sex on multiple occasions at Yamamoto’s office,
once in the bathroom at Yamamoto’s house where J.R. had lived, and once in
the kitchen of Yamamoto’s new house after the family moved. J.R. could not
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remember how many times they had sex before she turned 18 years old but
knew that it was more than two times. Yamamoto did not wear a condom.
One time, J.R. discovered that Yamamoto was video recording her during sex,
but Yamamoto deleted the video.
When E.Y. learned of Yamamoto’s sexual relationship with J.R., she
confronted and mocked J.R. She also told J.R. that she had been fighting
with Yamamoto, and E.Y. had bruises from a fight earlier that week.
Crimes Involving Yamamoto’s Daughter
Yamamoto worked for the Navy Reserve before starting a new job with
the Sheriff’s Department. He was considered the disciplinarian of the
household and typically punished M.Y. and her siblings by making them do
“military push-ups” or hitting them. On one occasion, Yamamoto hit M.Y.
and three of her siblings with a belt because they had not cleaned their
rooms. M.Y. was in elementary school at the time.
M.Y. witnessed Yamamoto fight with her siblings and, one time, put
her brother in a chokehold and strangle him with both hands. M.Y. also
witnessed Yamamoto’s aggression toward her mother. As an example, she
recalled that Yamamoto had been fighting with E.Y. and reached over and
“grabbed [E.Y.’s] phone really aggressive and he took it away from her,” when
they were going to pick one of M.Y.’s siblings up from school.
M.Y. knew to follow Yamamoto’s orders because if she did not comply,
he would get really angry and threaten to hit her with a belt or make her do
push-ups. M.Y. felt scared whenever Yamamoto was angry. She believed
that if she were to upset Yamamoto, she “would either get beat or [she] would
be punished.” She knew that Yamamoto had a gun that he kept under his
bed. This frightened her and she believed that if Yamamoto became angry
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with her, he could hurt her “because he was strong, and the fact that he had a
gun in the house.”
E.Y. testified that the children respected Yamamoto but were “kind of
scared of him.” Yamamoto experienced mood swings and was “hot and cold,”
and the children often asked E.Y., “[W]hy daddy is always mad? Why daddy
is like this?”
In April 2017, Yamamoto broke his arm in a motorcycle accident. M.Y.
was 14 years old, a sophomore in high school at the time, and she wanted to
dye her hair. Yamamoto told her that she would only be allowed to dye it if
she showered with him. M.Y. was scared but did not know what to do. She
did not want to anger Yamamoto, so she complied. Yamamoto undressed and
went into the shower in M.Y.’s bedroom. M.Y. was fully clothed when she
followed him in. Yamamoto instructed M.Y. to take off her clothing. M.Y. did
not want to, but she complied. Yamamoto then told M.Y. to stroke “his dick.”
M.Y. was in shock and froze. Yamamoto told her that it would be okay and
“to just do it.” M.Y. touched Yamamoto’s penis and then removed her hand,
but Yamamoto took her hand and put it back, and told M.Y. “to just finish it.”
M.Y. looked away and masturbated Yamamoto until he ejaculated.
Yamamoto touched M.Y.’s breasts and vagina. He also asked M.Y. to kiss
him using her tongue. M.Y. did not try to pull away because Yamamoto was
bigger and stronger than her and had already grabbed her hand and put it
back on his penis when she tried to stop. She thought that he would grab her
if she tried to resist him.
After the shower, M.Y. and Yamamoto went to his room. Yamamoto
told M.Y. that he was sorry and that she should call the police on him. He
told her that “he would plead guilty at the time.” But M.Y. was too afraid to
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call the police. She felt that reporting Yamamoto would make her family fall
apart and “everyone would hate [her].”
On several occasions thereafter, Yamamoto gave M.Y. a sex toy and his
laptop with pornography on it. He instructed her to watch the pornography
and to masturbate in the bathroom. Yamamoto would wait for M.Y. in her
room. M.Y. would turn on the shower and pretend to masturbate because she
did not know what else to do.
The following year, in July 2018, M.Y. was a junior in high school and
had invited one of her friends to come over. Yamamoto told M.Y. that she
could have her friend over “only if you do something for me.” E.Y. was at
work, but M.Y.’s two younger siblings were at home.
The next day, Yamamoto came into M.Y.’s bedroom and instructed her
to go into his room. M.Y. sent a text message to E.Y. that said, “Help.” E.Y.
responded and asked what was going on. Yamamoto saw M.Y. using her cell
phone, grabbed the phone away from her, and put it on his nightstand. In his
bedroom, Yamamoto told M.Y. to get undressed. He also undressed.
Yamamoto told M.Y. to get on her knees and “suck [his] dick.” M.Y. thought
that if she refused, Yamamoto would hurt her or she would be punished.
Yamamoto then told M.Y. to get in his bed. Yamamoto got on top of
M.Y., touched her breasts, and put his fingers inside of her vagina. M.Y. was
scared and thought that if she tried to leave, Yamamoto would grab her and
put her back on the bed. Yamamoto then put his mouth on M.Y.’s vagina.
While on top of M.Y., Yamamoto inserted his penis into M.Y.’s vagina.
M.Y. froze and could not think. She felt pain and told Yamamoto “that it
really hurt and [she] wanted to stop.” Yamamoto did not stop. He told M.Y.
to kiss him on the mouth using her tongue. Eventually, he told M.Y. to get
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up and go into the shower. In the shower, he touched M.Y.’s breasts and
vagina and instructed M.Y. to perform oral sex again until he ejaculated.
Afterwards, Yamamoto told M.Y. that this was the last time something
like this would happen. M.Y. did not believe him because he had said the
same thing after the first incident.
On or around August 9, 2019, M.Y. had a boyfriend at school. Per
cultural custom, M.Y. required permission from her parents to go on dates.
Yamamoto told M.Y. that if she wanted to go on a date with her boyfriend,
she would have to have sex with him first. Yamamoto instructed M.Y. to go
into his bedroom, where he told her to get undressed and go into the shower.
Yamamoto also undressed and got into the shower, where he started to touch
her vagina. Yamamoto put M.Y.’s hand on his penis. He then got out of the
shower and told M.Y. to put her mouth on his penis. Yamamoto also put his
mouth on her vagina. M.Y. thought that if she did not do what Yamamoto
asked, he would hurt her because he was strong and had a gun. Yamamoto
then laid down on the floor and instructed M.Y. to get on top of him. He
inserted his penis into her vagina and told her to “keep going” until he
eventually ejaculated.
On August 22, 2019, Yamamoto looked through M.Y.’s cell phone and
saw text messages suggesting that M.Y. and her boyfriend were sexually
active. Yamamoto seemed angry that M.Y. was texting her boyfriend, and
asked M.Y. “how come [she] doesn’t do it to him.”
Later that night, Yamamoto turned off the lights in the living room and
made M.Y. go behind the couch. Yamamoto pulled his pants down and told
M.Y. to “suck it,” and to “do it with affection like you’re doing it with [your
boyfriend].” M.Y.’s mouth was on Yamamoto’s penis when a light turned on
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in the kitchen. Yamamoto told M.Y. that he would just pick her up from
school the next day. M.Y. went back to her room.
The following day, Yamamoto sent M.Y. a text message during her
lunch hour telling her that he was going to pick her up during fifth period.
M.Y. did not reply. A teacher assistant came into M.Y.’s class with a slip that
said M.Y. had to take a DMV test. M.Y. went to the school office and saw
that Yamamoto was there to pick her up. Yamamoto signed her out and took
her home. There was no DMV appointment.
At home, Yamamoto told M.Y. to go straight to his room and undress.
Yamamoto touched her vagina and told her to get on the bed. M.Y. laid on
the bed, and Yamamoto climbed on top of her and inserted his penis into her
vagina. Yamamoto “started making out” with M.Y., using his tongue to kiss
her and touching her breasts. M.Y. was in pain and tried to scream, but
Yamamoto put his hand over her mouth. M.Y. began to cry. Yamamoto told
her “that it will all be over,” but did not stop.
M.Y. told Yamamoto that she was feeling pain in her vagina.
Yamamoto then grabbed her, flipped her over, and inserted his penis in her
anus. M.Y. was in pain and tried to scream, but Yamamoto covered her
mouth again. She told Yamamoto that it really hurt. Yamamoto flipped her
back over and inserted his penis into her vagina. He told M.Y., “If you
cry . . . I can’t cum.” Yamamoto ejaculated inside of M.Y. He told her that a
condom was unnecessary because he had had a vasectomy. Yamamoto told
M.Y. that this would be the last time.
On August 24, 2019, M.Y. told E.Y. that she had a urinary tract
infection. E.Y. asked her whether M.Y. had had sex before, but M.Y. said no.
Then E.Y. asked M.Y. whether “[her] dad did this.” M.Y. said no because she
was scared and nervous to tell her mother.
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The next day, M.Y.’s boyfriend asked Yamamoto for permission to take
M.Y. out, but Yamamoto was hostile toward him. So, M.Y.’s boyfriend told
M.Y. that he did not want to hang out anymore. M.Y. felt “fed up with
everything” and “wanted everything to end.” Believing that no one would
believe her or listen to her if she exposed Yamamoto’s abuse, she decided to
commit suicide. However, she called a suicide hotline and then fell asleep.
The next day at school, M.Y. was crying and her friends asked her what
was wrong. She told her friends that her father had been raping her. Her
friends reported the abuse to school counselors. M.Y. was called into the
office the following day. A counselor asked M.Y. about the situation and M.Y.
shared that Yamamoto had been sexually abusing her. The counselor then
called the police, and M.Y. told an officer and a detective about the abuse.
Defense
Yamamoto testified that he had a good, loving relationship with his
children. He would give them “a little swat on the butt” when they were
younger, but later stopped using physical discipline and instead used
exercises as discipline. He denied ever hitting M.Y.’s brother or putting him
in a chokehold, but said that he and the boys had “little wrestling matches.”
He had a good relationship with M.Y. until the day before she disclosed her
allegations. Before that, they had never “butt[ed] heads.” Their relationship
changed when M.Y. “really came at” Yamamoto.
Yamamoto and E.Y. had marital problems and frequently fought about
money. Sometimes, the fights turned violent, with E.Y. throwing things and
Yamamoto restraining her.
Yamamoto recalled going through M.Y.’s text messages with her
boyfriend, which indicated that M.Y. was sexually active. He told M.Y. to
practice safe sex and that he “wasn’t going to take care of her kids if she had
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one.” M.Y. asked Yamamoto to help her get out of taking a test the next day
by picking her up early from school. Yamamoto agreed and picked M.Y. up.
On the school sign-out slip, Yamamoto wrote that M.Y. had a DMV test as an
excuse. After they got home, Yamamoto played video games and M.Y. went
to her room. Yamamoto then took M.Y. to drop off pizza for her little sister.
Yamamoto was shocked when he was apprehended by police officers at
M.Y.’s school. After an emergency protective order and a temporary
restraining order were issued protecting M.Y., Yamamoto moved out of the
family house. He started talking with E.Y. and meeting her in local parking
lots or shopping plazas to talk.
On September 10, 2019, Yamamoto attempted suicide because E.Y. told
him that it was “better if you left your kids something instead of nothing.”
After Yamamoto’s suicide attempt, on September 16, 2019, E.Y. came to visit
Yamamoto at the casino hotel where he was staying. She told him that if his
story did not corroborate or match M.Y.’s, she would divorce him and take the
kids. Yamamoto suspected that E.Y. was trying to record him at that time,
but he admitted to having sex with M.Y. because he did not want to get
divorced.
Two days later, on September 18, 2019, Yamamoto met E.Y. in a
McDonald’s parking lot. He confessed to having sex with M.Y. three times.
E.Y. had recorded the conversation. Yamamoto testified that he “[did not]
remember saying it, but I heard the recording and that is my voice on the
recording.” Yamamoto again claimed that he confessed because he did not
want E.Y. to leave him. Yamamoto was “really just pissed off at the
allegations” and punched the dashboard in anger.
At trial, Yamamoto denied ever taking a shower with M.Y., engaging in
any sexual activity with her or encouraging her to masturbate, providing her
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with sex toys, or making her watch pornography. Yamamoto also denied
putting a phone in the shower or in J.R.’s bedroom to record her. Yamamoto
had never looked at J.R. in a sexual way until after she turned 18 years old.
At some point, however, the uncle-niece relationship evolved into Yamamoto
“cheating on” his wife with J.R. He could not remember exactly how he and
J.R. got together but knew that “one thing led to another and [they] started
going out and having sex.” Yamamoto characterized his relationship with
J.R. as a consensual affair, which strained his marriage after E.Y. found out.
Ultimately, Yamamoto chose to stay with his family rather than leave them
for J.R.
DISCUSSION
I
INEFFECTIVE ASSISTANCE OF COUNSEL
Under Strickland v. Washington (1984) 466 U.S. 668 (Strickland), to
prevail on a claim of ineffective assistance of counsel, a defendant must
demonstrate that trial counsel’s performance was deficient, and that this
deficient performance resulted in prejudice. (Id. at p. 687.) With respect to
the performance prong, a reviewing court “indulge[s] a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance” (id. at p. 689) and measures an attorney’s performance against an
“objective standard of reasonableness” (id. at p. 688). To establish that
defense counsel rendered deficient performance under Strickland, a
defendant must demonstrate that “counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” (Id. at p. 687.) “On direct appeal, a finding of deficient
performance is warranted where ‘(1) the record affirmatively discloses
counsel had no rational tactical purpose for the challenged act or omission,
12
(2) counsel was asked for a reason and failed to provide one, or (3) there
simply could be no satisfactory explanation.’ [Citation.] ‘[W]here counsel’s
trial tactics or strategic reasons for challenged decisions do not appear on the
record, we will not find ineffective assistance of counsel on appeal unless
there could be no conceivable reason for counsel’s acts or omissions.’ ”
(People v. Johnsen (2021) 10 Cal.5th 1116, 1165; People v. Cunningham
(2001) 25 Cal.4th 926, 1003 [“deficient performance [must be] based upon the
four corners of the record”].) Therefore, without some indication in the record
that counsel’s decision was not tactical, a reviewing court is not justified in
finding deficient performance on direct appeal.3 (See Mendoza Tello, supra,
15 Cal.4th at pp. 266-267; People v. Scott (1997) 15 Cal.4th 1188, 1212 [“If the
record does not shed light on why counsel acted or failed to act in the
challenged manner, we must reject the claim on appeal unless counsel was
asked for and failed to provide a satisfactory explanation, or there simply can
be no satisfactory explanation”].)
With respect to the prejudice prong, a defendant “must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” (Strickland, supra, 466
U.S. at p. 694.) A defendant “need not show that counsel’s deficient conduct
more likely than not altered the outcome in the case.” (Id. at p. 693.) Rather,
a defendant must show “a probability sufficient to undermine confidence in
the outcome.” (Id. at p. 694.)
3 Accordingly, it is “particularly difficult” for a defendant to prevail on
direct appeal on a claim of ineffective assistance by trial counsel (People v.
Mai (2013) 57 Cal.4th 986, 1009), and such claims are more “appropriately
decided in a habeas corpus proceeding” (People v. Mendoza Tello (1997) 15
Cal.4th 264, 266-267 (Mendoza Tello).
13
Here, the primary thrust of Yamamoto’s appeal concerns his claim that
his trial counsel was constitutionally ineffective because he did not object to:
(1) his confessions, (2) hearsay statements contained in a detective’s
testimony at trial, (3) hearsay statements from J.R., and (4) evidence of
Yamamoto’s prior acts of domestic violence. We address each of these claims
in turn.
A. Yamamoto’s Confessions
1. Yamamoto’s Contentions
Yamamoto argues that his trial counsel performed deficiently because
he did not move to suppress Yamamoto’s confessions. Specifically, Yamamoto
contends both his unrecorded and recorded confessions were involuntary
because he was motivated by fear of divorce and not seeing his children.
2. Background
After M.Y. disclosed Yamamoto’s abuse to school counselors and the
police, an emergency protective order was issued, and Yamamoto moved out
of the family home. Detective Rubidia Lopez-Ng asked E.Y. to meet with
Yamamoto and record their conversation. E.Y. agreed to do so.
Yamamoto and E.Y. had multiple interactions in which E.Y. would ask
Yamamoto to tell her what he did with M.Y. and J.R. According to
Yamamoto, he consistently denied any inappropriate conduct with M.Y. or
J.R. However, finally he stopped denying the allegations during two
conversations with E.Y.
On September 16, 2019, E.Y. met Yamamoto at a casino where he was
staying.4 She turned on her phone recorder and put it inside her purse. E.Y.
4 Previously, Yamamoto tried to commit suicide by overdosing on
Tylenol. After Yamamoto was discharged from the hospital, a relative got
him a hotel room at a casino.
14
and Yamamoto had a conversation wherein Yamamoto admitted “that
something happened to him and [M.Y.] and he didn’t know what he’s doing.”
However, E.Y. did not recall the specifics of the conversation, and the phone
recorder did not record the conversation.
Per Lopez-Ng’s request, E.Y. agreed to meet with Yamamoto again and
try to record their conversation. Lopez-Ng did not tell E.Y. what questions to
ask but conveyed that it was important to get Yamamoto to be “as specific as
possible or as much as possible” concerning what he did to M.Y.
On September 18, 2019, E.Y. met with Yamamoto in a McDonald’s
parking lot while inside her car. Because she was concerned that Yamamoto
would check her for a recording device, she put her phone under the driver’s
seat.5 From the beginning of their conversation, Yamamoto was suspicious
that E.Y. was recording the conversation. In fact, he asked, “[W]here is your
recorder at?”
At first, Yamamoto denied M.Y.’s allegations. When E.Y. said that
M.Y. was only 14 years old when Yamamoto began to have sex with her,
Yamamoto became very angry. He mentioned the possibility of an
enhancement: “Is she trying to get me on the enhancements? Fuck off,
[M.Y.], fuckin’ bitch. I ain’t fuckin’ gonna go to jail on fuckin’ fourteen. Fuck
you.” Yamamoto repeatedly denied that he had sex with M.Y., especially at
Casa Lago.6 Moreover, in his denial, he became irate and twice threatened
to “beat the fuck out of [M.Y.]”
5 The phone successfully recorded E.Y. and Yamamoto’s conversation,
which was transmitted to the police. The recording was admitted into
evidence during Yamamoto’s trial.
6 The family lived in a home in the Casa Lago neighborhood from 2013
until 2018.
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Nonetheless, Yamamoto eventually admitted to having sex with M.Y.
when she was 16 years old, stating, “I already told you it was at Yale.”7 E.Y.
asked Yamamoto how many times he had sex with M.Y., and he replied that
it was “[t]hree times total” and he only showered with her at Casa Lago.
Further, Yamamoto insisted that he did not touch M.Y. inappropriately until
she was older and accused somebody of coaching M.Y. “to put [him] away
under the 14 year old . . . rule.” Yamamoto cautioned E.Y. that she was not
getting a confession from him.
Yamamoto denied ever raping M.Y., claiming he did not “force her” and
did not “put her into fear, like, I’m going to fuckin’ kill you.” When E.Y.
pointed out that M.Y. was only 16 years old, Yamamoto replied, “Okay, it’s
statutory rape, one year, fucking technical.” He said he was diseased, sick in
the head, and a “nympho.”
Yamamoto was uneasy about being recorded throughout his
conversation with E.Y. and called her a liar repeatedly. He was upset about
the allegations and punched the car’s dashboard. Finally, he told E.Y. to
bring M.Y. to him so he could apologize. He did not want to say explicitly
what he needed forgiveness for and asked E.Y. why she wanted him to be so
specific.
Later during the conversation when Yamamoto again asked E.Y. to
bring M.Y. to him, E.Y. said, “So you’re just going to hurt her. You’re just
going to choke her.” Yamamoto did not directly respond to E.Y.’s allegations
but repeated the fact that E.Y. wanted him to apologize to M.Y.
At trial, Yamamoto testified that he only confessed when he met E.Y.
on September 16 because she threatened to divorce him and “take the kids” if
7 The family moved from Casa Lago to Yale Street in 2018.
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his story did not match what she knew. Specifically, Yamamoto asserted that
his wife told him, “ ‘It’s going to be okay. I just want this to be over. Just,
you know, tell me what you did.’ ” He further testified that E.Y. threatened
him as follows: “ ‘If your stories don’t corroborate or if they don’t match what
I’m hearing or what I know, then it’s over. Divorce.’ ” Yamamoto explained
that he believed if he did not confess, E.Y. would “leave [him] and take the
kids.”
Yamamoto therefore claimed that he just told E.Y. what she wanted to
hear during both the September 16 and September 18 conversations. To this
end, during the September 16 conversation, Yamamoto testified that he said
to E.Y., “ ‘What do you want to hear? I don’t know what you want to hear.
Do you want to hear me say it? Okay, then.’ . . . ‘Yeah. Sure. I fucked her.’ ”
He further testified that he did not provide any other details beyond that
statement and that he made the statement because he “wanted it to be over,”
“wanted to go home,” “wanted to see [his] kids,” and “wanted [his] life back.”
He referred to the ordeal as a “nightmare.” He also emphasized that he did
not want his wife to leave him.
Yamamoto also claimed that, when he talked to E.Y. on September 18,
his “mind wasn’t in the right place.” He could not explain why he admitted
some allegations while denying others. In addition, Yamamoto testified that
he heard his statements on the recording played for the jury, but he did not
remember making many of the statements that were recorded. Moreover, he
explained that he was angry in response to the allegations and said “anything
[he] thought [E.Y.] wanted to hear so it would end.”
3. Analysis
Yamamoto argues his trial counsel was ineffective for failing to object
to the admission of his statements to E.Y. on the grounds that the statements
17
were involuntary.8 He asserts E.Y. was acting as an agent of the police both
times she talked to him. Accordingly, his statements were involuntarily
obtained. We find no merit in Yamamoto’s contentions.
Had counsel objected to the admission of Yamamoto’s statements to
E.Y. on involuntariness grounds, the prosecution would have been required to
establish by a preponderance of the evidence that the statements in the
conversations were voluntary and not obtained as a result of police coercion.
(People v. Massie (1998) 19 Cal.4th 550, 576; People v. Maury (2003) 30
Cal.4th 342, 404 [“finding of coercive police activity is a prerequisite to a
finding that a confession was involuntary under the federal and state
Constitutions”].) “Under both state and federal law, courts apply a ‘totality of
circumstances’ test to determine the voluntariness of a confession.
[Citations.] Among the factors to be considered are ‘ “the crucial element of
police coercion [citation]; the length of the interrogation [citation]; its location
[citation]; its continuity” as well as “the defendant’s maturity [citation];
education [citation]; physical condition [citation]; and mental health.” ’
[Citation.] . . . In determining whether a confession was voluntary, ‘[t]he
question is whether defendant’s choice to confess was not “essentially free”
because his will was overborne.’ [Citation.]” (Massie, at p. 576.) “A
confession may be found involuntary if extracted by threats or violence,
8 Yamamoto’s trial counsel objected to the admission of the recorded
confession as illegally obtained under section 632, which prohibits the
intentional recording of a confidential conversation without the consent of all
parties to the conversation. (See § 632, subd. (a).) Counsel also argued that
the court should not admit the recording under Evidence Code section 352
because Yamamoto was prepared to testify about the conversation. As such,
the record indicates that defense counsel debated the admissibility of the
recorded conversation and moved to exclude it under two separate grounds.
Thus, it appears that his decision not to argue the confession was involuntary
was a tactical one.
18
obtained by direct or implied promises, or secured by the exertion of improper
influence.” (Maury, at p. 404.)
For example, psychological coercion can result in involuntary
confessions. (See Arizona v. Fulminante (1991) 499 U.S. 279, 285-287.)
There, the defendant confessed to a murder after a fellow inmate, acting on
behalf of the police, offered to help the defendant get protection from other
inmates if the defendant confessed. (Id. at p. 283.) At the time, the
defendant had been beginning to receive rough treatment from other inmates
because there was a rumor that he had killed a child. (Ibid.) The Supreme
Court found there was a credible threat of violence against the defendant,
which motivated the defendant’s confession and rendered it the product of
coercion. (Id. at p. 288.)
Assuming without deciding that E.Y. was acting as an agent of the
police when she spoke to Yamamoto at the casino on September 16 and then
in her car in the McDonald’s parking lot on September 18, the totality of the
circumstances surrounding both conversations does not reveal coercive
conduct that calls into question the voluntary nature of Yamamoto’s
confessions.
During the September 16 conversation at the casino, it is less than
clear what exactly Yamamoto admitted to. That conversation was not
recorded, and, at trial, E.Y. could not recall any specifics of what Yamamoto
said. Indeed, E.Y. simply testified that Yamamoto admitted “that something
happened to him and [M.Y.] and he didn’t know what he’s doing.” This lack
of specificity is corroborated by Yamamoto’s own trial testimony wherein he
stated that he told E.Y. that he “fucked” M.Y. but did not provide any details
aside from that statement. Thus, based on the testimony of both E.Y. and
Yamamoto, it does not appear that, during the September 16 conversation,
19
Yamamoto confessed in any sort of detail to what he did to M.Y. or J.R.
beyond a somewhat flippant statement, “ ‘What do you want to hear? I don’t
know what you want to hear. Do you want to hear me say it? Okay, then. . . .
Yeah. Sure. I fucked her.’ ”
Nonetheless, it was during this September 16 conversation that
Yamamoto claims he was subjected to psychological coercion and threats
because E.Y. was threatening to leave him and take their children if what he
said did not “corroborate” or “match” what E.Y. had heard or knew. Yet,
there is no indication that during the September 16 conversation that
Yamamoto admitted to any specific occurrences beyond stating that he had
sex with M.Y. In fact, Yamamoto testified that E.Y. asked about specific
events like having sex with M.Y. in the bathroom floor or on their bed as well
as M.Y. masturbating Yamamoto in the shower. But Yamamoto did not
admit to any such details during the September 16 conversation.
Additionally, E.Y.’s testimony contradicted Yamamoto’s testimony
regarding any threats of divorce during the September 16 conversation.
According to E.Y., she and Yamamoto discussed divorce at some point during
one of their meetings, but the discussion was unrelated to M.Y.’s allegations.
To this end, E.Y. testified: “I told him that I would stay with him if he
[would] sign the power of attorney that I needed . . . to withdraw the
[retirement] contribution and to get a new military I.D. for the kids and also
to amend the tax return 2019.” E.Y. also told Yamamoto that she would
bring the children to see him after he signed the power of attorney; however,
the children would ultimately decide if they wished to see him. She testified
that she did not condition staying married to Yamamoto to anything related
to the criminal allegations against him.
20
Only looking at the September 16 conversation, we see little evidence
that Yamamoto’s statements to E.Y. were involuntary. Yamamoto claims
that E.Y. threatened to divorce him unless he corroborated what she knew or
heard. And although she offered specific details about his interactions with
M.Y., it does not appear that Yamamoto made any statement to confirm what
E.Y. knew beyond a generic statement that “something happened” (according
to E.Y.) or that he “fucked” M.Y. (according to Yamamoto). Moreover, the
lack of any evidence that Yamamoto’s statements to E.Y. were involuntary is
underscored by the recording of the September 18 conversation.
There is no evidence whatsoever of E.Y. making any threats during the
September 18 conversation. The recording begins with Yamamoto getting
into E.Y.’s car and ends with him leaving. Not once is divorce mentioned.
E.Y. does not warn Yamamoto that she is not going to let him see the kids
unless he confesses.
Additionally, Yamamoto clearly believes that E.Y. is recording their
conversation. He asks E.Y., “[W]here is your recorder at?” Later during the
conversation, apparently in response to Yamamoto looking all around, E.Y.
tells Yamamoto to search the car for a recording device. And when
Yamamoto denies that he had sex with M.Y. when she was 14, he states, “I
hope you’re recording this too.” Therefore, the recording shows that, at the
very least, Yamamoto suspected his conversation with E.Y. was being
recorded. Thus, Yamamoto appears to have been at least somewhat
sophisticated in understanding that his conversation with E.Y. was being
recorded (his knowledge is further underscored by his experience in law
enforcement).
Also, Yamamoto’s tone in the recorded conversation undermines his
claim that he confessed because he was trying to save his marriage.
21
Throughout the conversation, Yamamoto hurled profanities and insults at
E.Y., saying “fuck you” multiple times, calling her a liar and a “fuckin’ bitch,”
and threatening to “beat the fuck out of” M.Y. In fact, Yamamoto’s attitude
during the entire conversation is aptly described as combative with no
indication that he was simply telling E.Y. what she wanted to hear. To the
contrary, he appeared to be fighting E.Y. with every question she asked.
Further, the recording belies Yamamoto’s claim that he felt compelled
to corroborate M.Y.’s story to placate E.Y. Throughout the recording,
Yamamoto vehemently denied many allegations while alluding to the fact
that he committed others (but often minimizing his actions). He was most
emphatic in denying that he ever had sex with M.Y. while she was 14 years
old: “Fuck that. You’re not getting a confession. Fuck you.” Such comments
hardly seem consistent with someone who was trying to say whatever E.Y.
wanted to hear. Moreover, at trial, Yamamoto was unable to explain why he
admitted to some accusations but not others.
Also, other circumstances undercut Yamamoto’s claim his statements
to E.Y. were not voluntary. Both conversations occurred in areas where
Yamamoto was free to leave at any time he decided to do so. He appeared
acutely aware of what was being alleged against him. For example, he noted
the difference in a claim that he had sex with M.Y. when she was 14 years old
as compared to 16 years old, saying that he was not “getting” a “14-year
enhancement.” He also was aware that statutory rape was not as serious of a
crime as forcible rape. And he would begrudgingly admit to the less serious
crimes while vehemently denying the more severe allegations. Further, his
hostile tone with E.Y. indicated that he was not intimidated or cowered by
her.
22
Against this background, we conclude that any objection to the
admission of the September 16 and 18 conversations between Yamamoto and
E.Y. on the grounds that Yamamoto’s statements were involuntarily obtained
as the result of coercive police conduct would have failed. Counsel is not
ineffective for failing to bring a meritless challenge to admissible evidence.
(People v. Hart (1999) 20 Cal.4th 546, 629.)
B. Hearsay Evidence Concerning Count 6
1. Yamamoto’s Contentions
Yamamoto argues his trial counsel was constitutionally ineffective
because he did not object to Lopez-Ng’s testimony regarding E.Y.’s statement
that Yamamoto performed oral sex on her on August 8 (count 6). We reject
this contention. On the record before us, we cannot say that there was no
tactical reason for counsel’s decision not to object to the evidence.
2. Background
Among other crimes, Yamamoto was charged with two acts of forcible
oral copulation occurring on August 8, 2019.9 Count 5 constituted the “first
time,” and Count 6 was based on the “last time.”
Lopez-Ng was a family protection unit detective for the Chula Vista
Police Department and the lead investigator in the instant matter. As part of
her investigation, she conducted several interviews with M.Y. Lopez-Ng
audio recorded the interviews and reviewed the recordings before testifying
at trial. She also wrote a summary report of her interviews with M.Y.
At trial, on August 26, 2021, M.Y. had difficulty remembering whether
Yamamoto sexually abused her on certain dates. The prosecution asked
9 The second amended information alleged that Yamamoto committed
these offense on August 9, 2019. However, the trial evidence indicated that
the correct date was August 8, 2019.
23
whether it would help refresh M.Y.’s recollection to see a summary of her
statement to Lopez-Ng, which she provided in August 2019. M.Y. responded
in the affirmative and reviewed the statement. After she reviewed the
statement, the prosecution asked M.Y. whether it helped her remember
whether there was another time “where your father had sexual intercourse
with you.” M.Y. said that it did and testified that Yamamoto had sex with
her on the same date as her school’s open house (August 8, 2019).
M.Y. continued to recall other details of the abuse that day, but when
the prosecution asked whether Yamamoto had put his mouth on her vagina
on August 8, 2019, M.Y. responded, “I cannot remember.” However, she did
remember that she orally copulated Yamamoto that day.
When Lopez-Ng subsequently testified regarding what occurred on
August 8, 2019, she testified as follows: “[W]hen we asked [M.Y.] what body
parts went in, it was fingers and then, you know, mouth to vagina, his mouth
to her vagina and then penis to vagina.”
Yamamoto’s trial counsel did not object to this portion of Lopez-Ng’s
testimony.
During his closing argument, Yamamoto’s trial counsel told the jury
that he was not going to review the evidence “charge by charge, witness by
witness,” but instead, would “focus” the jury’s “attention on some issues in
this case.” To this end, he argued that there was no evidence that Yamamoto
ever used force against M.Y. He also emphasized there was a lack of
evidence that M.Y. submitted to any act with Yamamoto based on duress.
However, one of defense counsel’s primary arguments was that the sex
acts never happened. Thus, counsel pointed out the lack of physical evidence
that any sexual contact occurred. Yamamoto’s trial counsel also highlighted
24
the inconsistencies in M.Y.’s testimony and specifically how her testimony
contradicted Lopez-Ng’s testimony.
3. Analysis
Here, Yamamoto argues his trial counsel was ineffective because he
failed to object to the admission of Lopez-Ng’s hearsay statement that M.Y.
told her that mouth to vagina contact occurred on August 8, 2019. Further,
Yamamoto claims that there could be no rational tactical reason for not
objecting to this evidence because it was the only evidence offered to prove
count 6. We disagree.
On this record, we cannot rule out the possibility that defense counsel
chose not to object to Lopez-Ng’s testimony as part of his overall trial
strategy. During closing argument, counsel argued that Yamamoto did not
sexually abuse M.Y. whatsoever and explicitly challenged M.Y.’s credibility.
Thus, he compared the difference in what M.Y. told Lopez-Ng and what she
testified to at trial. As such, it might have been that Yamamoto’s trial
counsel made the strategic decision to allow Lopez-Ng to testify regarding
M.Y.’s previous statements to underscore his theory that M.Y. was not
believable. Further supporting this tactical decision, as the People suggest,
defense counsel might have been concerned that had he objected to Lopez-
Ng’s testimony, the prosecution simply would have put M.Y. back on the
stand and refreshed her recollection yet again with Lopez-Ng’s summary
report. In doing so, that particular statement would have been highlighted
for the jury and the jury would have heard M.Y. herself testify about the
mouth to vagina contact. Yamamoto maintains that the People’s argument is
speculative because we cannot possibly know what the prosecution might
have done. True, there is some speculation in the People’s argument, but
that speculation is inherent in almost any ineffective assistance counsel
25
challenge on direct appeal as often we cannot rule out, based on the four
corners of the appeal, the possibility that counsel had a tactical reason for not
objecting. (See Mendoza Tello, supra, 15 Cal.4th at pp. 266-267; People v.
Scott, supra, 15 Cal.4th at p. 1212.)
Therefore, on the record before us, we conclude there was a possible
rational tactical reason for not objecting to Lopez-Ng’s testimony regarding
what M.Y. told her about mouth to vagina contact, and we cannot find
ineffective assistance of counsel based solely on the appellate record as to this
issue. (People v. Bradford (1997) 14 Cal.4th 1005, 1052 [reviewing court will
find ineffective assistance of counsel “ ‘ “only if the record on appeal
affirmatively discloses that counsel had no rational tactical purpose for his
act or omission” ’ ”].)
C. Hearsay Statements Related to Counts 28 and 29
1. Yamamoto’s Contentions
Yamamoto next contends his trial counsel was constitutionally
ineffective because he did not object to certain hearsay statements that J.R.
made to Lopez-Ng. On the record before us, we cannot determine that
defense counsel was constitutionally ineffective for failing to object to such
evidence.
2. Background
At trial, J.R. testified that Yamamoto took her to his office and had sex
with her when she was younger than 18 years old and that she had sex at
least once more before she turned 18.
Regarding J.R, the prosecution asked Lopez-Ng how she learned that
J.R. was a victim. She responded that E.Y. told her “that she 100 percent
believed her daughter about what happened because Mr. Yamamoto had
26
done the same thing to their niece [J.R.] when [J.R.] was living with them.”
Yamamoto’s trial counsel did not object to this answer.
Lopez-Ng also testified about her discussions with J.R. and explained
that J.R. told her that Yamamoto picked her up to go to the gym but instead
took her to his office and had sex with her. Lopez-Ng also testified that she
focused on when sexual intercourse occurred and said that J.R. stated she
had sex with Yamamoto five or six times. Defense counsel did not object to
Lopez-Ng’s testimony.
However, during cross-examination, Yamamoto’s trial counsel asked
Lopez-Ng about her conversations with J.R. Specifically, counsel asked
Lopez-Ng if J.R. described her relationship with Yamamoto like it was a
“boyfriend/girlfriend relationship.” Defense counsel got Lopez-Ng to admit
that J.R. told her that Yamamoto treated her like a girlfriend and would buy
her food after school. In response to defense counsel’s questions, Lopez-Ng
testified that Yamamoto often picked up J.R. from school when she had a free
sixth period and took her to his office.
At trial, Yamamoto claimed that he had a romantic, sexual relationship
with J.R., but they did not begin having sex until J.R. was 18 years old.
Yamamoto’s trial counsel reiterated Yamamoto’s version of events during this
closing argument as he reminded the jury:
“He made himself vulnerable. He admitted to a romantic
sexual relationship with his niece. That is something that
society frowns upon, something that most of you, I’m sure,
are not okay with, but he was vulnerable and opened
himself up and admitted to that. He owned that. But
another thing that he is adamant about is that he did not
begin any sexual relationship with her until after her 18th
birthday.”
Thus, defense counsel’s strategy regarding the claims against Yamamoto
relating to J.R., which included counts 28 and 29, was to concede that
27
Yamamoto and J.R. had a sexual relationship but argue that relationship
was akin to a boyfriend/girlfriend relationship that did not begin until after
J.R. was 18 years old.
3. Analysis
Here, Yamamoto argues that the challenged Lopez-Ng testimony was
inadmissible hearsay, and there was “no conceivable tactical reason for
failing to object to the hearsay evidence.” The People concede that J.R.’s
prior statements to Lopez-Ng constituted hearsay that was inadmissible
under Evidence Code section 791. They do, however, posit that J.R.’s prior
statements might have been admissible under a different hearsay exception.
Yet, we need not consider other possible hearsay exceptions because, even if
we assume the challenged testimony was inadmissible hearsay, we
nonetheless conclude Yamamoto has not shown that his trial counsel was
ineffective for failing to object to the testimony.
We disagree with Yamamoto that there was no reasonable tactical
reason for failing to object. Below, defense counsel chose to question Lopez-
Ng regarding the content of her interviews with J.R. To this end, he got
Lopez-Ng to admit that J.R. characterized her relationship with Yamamoto
like they were boyfriend and girlfriend. Perhaps, Yamamoto’s trial counsel
was concerned that if he objected to Lopez-Ng testifying about her
conversations with J.R. during Lopez-Ng’s direct examination, he would not
have had the opportunity to elicit her admission that J.R. referred to her
relationship with Yamamoto in conventional terms. Thus, on this record, we
cannot determine Yamamoto’s counsel was constitutionally ineffective. (See
People v. Bradford, supra, 14 Cal.4th at p. 1052.)
Additionally, Yamamoto has not shown that he was prejudiced by his
attorney’s failure to object to the evidence. Here, Yamamoto argues that
28
J.R.’s prior statements were prejudicial because they “unfairly corroborated”
J.R.’s trial testimony. Not so. At trial, Yamamoto conceded that he had a
sexual relationship with J.R. Therefore, as to Yamamoto’s crimes against
J.R., the contested issue was when sexual intercourse between the two
occurred. Yamamoto does not point to any portion of the challenged evidence
that established when Yamamoto and J.R. had sexual intercourse. Thus, at
most, Lopez-Ng’s testimony corroborated the fact that Yamamoto and J.R.
had sex. However, Yamamoto conceded that issue at trial. Thus, on this
record, we are not persuaded that Yamamoto has shown “but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” (Strickland, supra, 466 U.S. at p. 694.)
D. Evidence of Prior Acts of Domestic Violence
1. Yamamoto’s Contentions
Yamamoto argues that his trial counsel performed deficiently when he
did not object to E.Y.’s testimony at trial describing Yamamoto’s acts of
physical violence against her. Specifically, Yamamoto maintains that the
evidence was inadmissible under Evidence Code sections 350, 1101, and 352.
We disagree.
2. Background
At trial, M.Y. testified that she was afraid of Yamamoto and complied
with his requests for sex because she thought that Yamamoto might hit her
with a belt or punish her if she tried to resist him. Yamamoto “was strong”
and had a gun in the house, which frightened M.Y. M.Y. stated that
Yamamoto had hit her with a belt before for failing to clean her room, she
had seen Yamamoto hit her siblings and, on one occasion, she witnessed
Yamamoto strangle her brother “in a chokehold” with both hands. M.Y. also
29
saw Yamamoto argue with E.Y., and on one occasion, she observed
Yamamoto take E.Y.’s cell phone away in a “really aggressive” manner.
E.Y. testified that the children were “kind of scared” of Yamamoto, and
would ask her why Yamamoto was mad all the time. She also stated that
even though her relationship with Yamamoto soured, she stayed with him for
the children’s sake and because she would be unable to financially support
herself if she and Yamamoto were to divorce.
When E.Y. learned about Yamamoto’s sexual relationship with J.R.,
she got “very, very aggressive about it” with Yamamoto, and was “nagging”
Yamamoto to find out the truth about what had happened between them.
She testified that Yamamoto used his law enforcement experience to stop her
by putting her on the floor with her hands behind her back, which caused her
multiple bruises. Regarding this interaction, E.Y. described herself as “kind
of violent too.”
J.R. testified that when E.Y. confronted her about her relationship with
Yamamoto, E.Y. told her that she had bruises from a fight with Yamamoto
earlier that week. The jury also heard E.Y.’s recorded conversation with
Yamamoto, in which Yamamoto threatened to “beat the fuck out of” M.Y.
multiple times and called her a “fuckin’ bitch,” insulted E.Y., and punched
the dashboard in anger. Yamamoto asked E.Y. to bring him M.Y. so that he
could apologize to her. E.Y. responded, “So you’re just going to hurt her.
You’re just going to choke her.”
When E.Y. testified at trial, the prosecution asked her why she thought
that Yamamoto was going to choke M.Y. E.Y. replied that during another
fight about J.R., “He choked me one time. I remember because I ran away.”
E.Y. recalled that Yamamoto wrapped one of his hands around her neck to
strangle her.
30
3. Analysis
Here, Yamamoto argues that his trial counsel was ineffective because
he did not object to the admission of evidence of his prior acts of violence
against E.Y. To this end, he claims the evidence was inadmissible under
Evidence Code sections 350, 1101, and 352. We will address each of these
code sections in turn.
Yamamoto first argues the evidence of his prior acts of abuse against
E.Y. was inadmissible under Evidence Code section 350. That section
provides: “No evidence is admissible except relevant evidence.” (Evid. Code,
§ 350.) “ ‘Relevant evidence’ means evidence, including evidence relevant to
the credibility of a witness or hearsay declarant, having any tendency in
reason to prove or disprove any disputed fact that is of consequence to the
determination of the action.” (Evid. Code, § 210.) Further, “ ‘[a] trial court
has “considerable discretion” in determining the relevance of evidence.’ ”
(People v. Jones (2017) 3 Cal.5th 583, 609.) And the test of relevance is
whether the evidence tends “ ‘ “logically, natural, and by reasonable
inference’ to establish material facts such as identity, intent, or motive.
[Citations.]’ ” (People v. Carter (2005) 36 Cal.4th 1114, 1166-1167.)
In the instant action, the prior bad acts evidence consists of testimony
regarding two events. First, in response to E.Y. being aggressive and violent
toward Yamamoto about his interactions with J.R., Yamamoto used his law
enforcement tactics to restrain E.Y. Second, Yamamoto once choked E.Y. As
we discuss post, evidence of both of these acts was relevant.
E.Y.’s testimony about Yamamoto restraining her on the floor was
relevant because it tended to show that Yamamoto was capable of physically
harming members of his family and that M.Y.’s fear of Yamamoto was
credible. Even if M.Y. did not personally witness Yamamoto restraining E.Y.,
31
the evidence helped lay the foundation of M.Y.’s home environment for the
jury. Additionally, the evidence tended to illustrate the relationship between
E.Y. and Yamamoto. One of Yamamoto’s arguments challenging the
believability of the recording of his September 18 conversation with E.Y. was
his claim that he simply said what E.Y. wanted to hear to maintain their
marriage. Certainly, the altercation in which E.Y. was violent toward
Yamamoto and Yamamoto subdued her underscores that the couple could be
physically violent toward each other. Such an event helped the jury to
evaluate whether Yamamoto was being truthful when he claimed he
confessed to certain acts with M.Y. just to stay married to E.Y. In other
words, in his relationship with E.Y., has Yamamoto shown himself to be the
type of person who simply does what he thinks his wife wants him to do or
say? Further, E.Y. described Yamamoto as using a law enforcement
technique. Yamamoto’s willingness to do so buttressed M.Y.’s testimony that
Yamamoto was a disciplinarian who made the children do “military style”
push-ups as punishment and kept his service weapon under his bed, which
frightened M.Y.
E.Y.’s testimony that Yamamoto choked her also was relevant because,
like the first prior act, it tended to show the dynamics of the relationship
between E.Y. and Yamamoto. Moreover, the evidence related to E.Y.’s
credibility during the recording of the September 18 conversation wherein
Yamamoto told E.Y. to bring M.Y. to him so he could apologize, and E.Y.
responded that Yamamoto was “just going to choke her.” When she was
questioned at trial why she would make that comment, she recalled the
choking incident between her and Yamamoto. Thus, E.Y.’s testimony about
the choking incident was relevant both to her state of mind on September 18
when she made the choking comment to Yamamoto’s and E.Y.’s credibility.
32
Having concluded the two prior bad acts were relevant, we next
consider whether the evidence was inadmissible under Evidence Code
section 1101. Evidence that a defendant committed prior bad acts is
inadmissible when offered solely to prove the defendant’s criminal disposition
to commit such an act (Evid. Code, § 1101, subd. (a); People v. Ewoldt (1994)
7 Cal.4th 380, 393, 399), but it is admissible “when relevant to prove some
fact (such as motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident . . . .) other than [the defendant’s]
disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).) In the
instant action, the prior bad acts evidence was not offered to prove
Yamamoto’s criminal disposition to commit a similar act. Rather, as we
discussed ante, the evidence was offered to show the dynamics of Yamamoto’s
marriage to E.Y., E.Y.’s state of mind when she made certain comments
during the September 18 recorded conversation, and the family environment
of Yamamoto’s home. As such, the challenged evidence was not inadmissible
under Evidence Code section 1101.
Finally, we disagree with Yamamoto that the prior bad acts evidence
would have been excluded under Evidence Code section 352 had his trial
counsel objected on those grounds below. “Under Evidence Code section 352,
the probative value of the proffered evidence must not be substantially
outweighed by the probability that its admission would create substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury.”
(People v. Cole (2004) 33 Cal.4th 1158, 1195.) “ ‘ “The ‘prejudice’ referred to
in Evidence Code section 352 applies to evidence which uniquely tends to
evoke an emotional bias against the defendant as an individual and which
has very little effect on the issues.” ’ ” (People v. Gionis (1995) 9 Cal.4th 1196,
1214.)
33
Here, the prior bad acts evidence is not nearly as inflammatory as the
offenses alleged against Yamamoto. Yamamoto was charged with molesting
his daughter and niece multiple times in various ways. The fact that he
restrained his wife when she was being violent toward him and choked her
once pales in comparison to the violent, sexual acts he committed against two
minors. Further, on the recording of the September 18 conversation between
E.Y. and Yamamoto, Yamamoto threatened to beat M.Y. multiple times
based on the allegations against him. Yamamoto’s anger and apparent
willingness to hurt his daughter is much more incendiary than the two prior
bad acts.
Additionally, the prior bad acts evidence was probative of important
issues at trial, i.e., the dynamics of Yamamoto’s marriage to E.Y., E.Y.’s state
of mind when she made certain comments during the September 18 recorded
conversation, and the family environment of Yamamoto’s home.
Consequently, the admission of the challenged evidence did not run afoul of
Evidence Code section 352.
Because we conclude the prior bad acts evidence was admissible under
Evidence Code sections 350, 1101, and 352, Yamamoto has not shown that
his trial counsel was constitutionally ineffective for failing to object to the
admission of that evidence. (See People v. Hart, supra, 20 Cal.4th at p. 629.)
II
CUMULATIVE ERROR
Yamamoto maintains that, taken together, the multiple errors
constitute cumulative error that warrants reversal. We disagree.
Yamamoto’s claims of multiple error hinge entirely upon a finding that his
counsel was constitutionally ineffective on several fronts. We found no merit
to any of Yamamoto’s claims that his counsel was ineffective. “A predicate to
34
a claim of cumulative error is a finding of error.” (People v. Sedillo (2015) 235
Cal.App.4th 1037, 1068.) Because we do not find any error, we also do not
find any cumulative error that warrants reversal. (Ibid.; see People v. Duff
(2014) 58 Cal.4th 527, 562 [“In the absence of error, there is nothing to
cumulate.”].)
III
SENTENCING ISSUES
A. Yamamoto’s Contentions
Yamamoto argues that even if we do not reverse any of his convictions,
we must remand this matter to the trial court for resentencing consistent
with Senate Bill No. 567 (Stats. 2021, ch. 731, § 1.3) (Senate Bill 567),
Assembly Bill No. 124 (Stats. 2021, ch. 695, § 5.3) (Assembly Bill 124), and
Assembly Bill No. 518 (Stats. 2021, ch. 441, § 1) (Assembly Bill 518). We
agree that remand is required under Senate Bill 567. Because we reach that
conclusion, we do not address Yamamoto’s arguments under Assembly
Bills 124 and 518.
B. Background
At the sentencing hearing, the prosecution emphasized that
Yamamoto’s crimes had devastated his victims; that he had abused his
daughter’s trust in him; that he was a sheriff’s deputy at the time he
molested his daughter; that he persisted in his crimes against M.Y. despite
her pleas to stop and attempts to get away; and that his crimes involved
planning. Accordingly, the prosecution requested the maximum sentence of
94 years and eight months for Yamamoto, arguing that consecutive terms
35
were appropriate because Yamamoto had time to pause, reflect, and stop the
abuse between each of his crimes.10
Yamamoto’s trial counsel argued that Yamamoto’s crimes against M.Y.
and J.R. could be grouped into six courses of conduct: one on July 12th
(counts 1, 2, and 3); one on August 9th (counts 4, 5, 6, and 7); one on
August 22 (count 8); one on August 23 (counts 9, 10, 11, and 13); and two
separate crimes against J.R. (counts 28 and 29). Thus, defense counsel
stated: “The defense concedes that with the facts that have been presented
and the findings from the jury, that an upper term sentence is warranted.”
However, counsel argued that a 34-year sentence would be “enough to protect
society, to punish Mr. Yamamoto for the conduct that the jury found him
guilty of, to encourage Mr. Yamamoto to lead a law-abiding life, [and] to deter
others from criminal conduct.”11
The trial court explained that it had considered the probation officer’s
report, the prosecution’s sentencing brief, victim statements, E.Y.’s
10 The maximum sentence would have included consecutive eight-year
upper terms for all 11 forcible sex convictions, the upper term of four years
for count 9, and consecutive eight-month terms (or one third the midterm) for
each of counts 14, 15, 28, and 29.
11 The defense requested a total of 34 years as follows: (1) upper terms of
eight years for all counts relating to the July 12, 2018 course of conduct, with
counts 2 and 3 to run concurrent to count 1; (2) an upper term eight-year
sentence for count 4 as relating to the August 9th course of conduct, with
counts 5, 6, and 7 to run concurrent; (3) an eight-year upper term sentence
for count 8 as relating to the August 22d conduct; (4) an eight year upper
term sentence for count 10 as relating to the August 23d course of conduct,
with counts 9, 11, and 13 to run concurrent; (5) an eight-month consecutive
term for count 14; and (6) eight-month consecutive sentences for each of
counts 28 and 29. Counsel agreed with the probation officer’s
recommendation that count 15 be stayed pursuant to section 654.
36
statement, and Yamamoto’s statement. The court then considered
circumstances in mitigation and aggravation as follows:
“The only factor in mitigation that I think applies to Mr.
Yamamoto is that he has no prior criminal record.
“I’m noting the following factors in aggravation. One of the
victims was his biological daughter. The other was also a
family member.
“It is clear from their testimony and from their victim
statements today that . . . these acts have affected them
both deeply and will have a lasting effect on them for a
significant period of time.
“There was some planning to set up some of the sexual
incidents, including the setup of a camera in the bedroom.
The manner in which he approached his daughter was
coercive and cruel in this court’s opinion.
“Clearly, the jury opined that the defendant’s testimony
was not truthful and misleading . . . I agree.
“As [M.Y.]’s father, he took advantage of a position of trust
and confidence to commit the offense; so consecutive
sentencing is mandatory for multiple forcible sex crimes.”
The trial court further explained: “I am finding that the conduct
charged on the same day, for the dates of July 12th, August 9th, August 22d,
and August 23d of 2019 against [M.Y.] . . . were not simply a change of
position without reflection. These were separate and distinct acts between
which the defendant had a reasonable opportunity to reflect . . . and,
nevertheless, continued on to the next act.”
The court clarified that it found that consecutive terms were
appropriate under section 667.6, subdivisions (c) and (d). Moreover, it stated
that it had considered California Rules of Court, rules 4.421 and 4.423 and
sentenced Yamamoto as follows:
37
“For count 1, I’m selecting the upper term of eight years;
count 2, I’m selecting the middle term of six years at full-
strength, consecutive; for count 3, I’m selecting the middle
term of sex years at full-strength, consecutive; for count 4,
I’m selecting the upper term of eight years at full-strength,
consecutive; for count 5, I’m selecting the midterm of six
years at full-strength, consecutive; for count 6, I’m selecting
the midterm of six years at full-strength, consecutive; for
count 7, I’m selecting the midterm of six years at full-
strength, consecutive; for count 8, I’m selecting the upper
term of eight years at full-strength, consecutive; for count
10, I’m selecting the upper term of eight years at full-
strength, consecutive; for count 11, I’m selecting the
midterm of six years at full-strength, consecutive; for count
13, I’m selecting the midterm of six years at full-strength
and consecutive.
“So pursuant to Penal Code section 667.6(c) and (d), for
those counts, that is a total of 74 years.
“Pursuant to Penal Code section 1170, the remaining
counts are sentenced as follows: For count 9, I am selecting
the upper term of four years; for count 14, the upper term
of—well, it’s one-third the midterm, but I would select the
upper term if given the opportunity—so one-third the
midterm of two years is consecutive.
“I do agree with probation and with [defense counsel] that
count 15, Penal Code section 285, incest, is barred,
pursuant to Penal Code section 654; so I’ll select the upper
term of three years, but that is stayed, per Penal Code
section 654.
“Count 28, I am selecting the middle term as consecutive so
that’s an additional eight months; the same for count 29,
that is consecutive.
“So pursuant to Penal Code section 1170, that is an
additional six years for a total prison term of 80 years.”
38
C. Analysis
Senate Bill 567, which became effective on January 1, 2022, modified
section 1170, subdivision (b), to require imposition of the middle term of
imprisonment unless circumstances in aggravation justify imposition of a
greater sentence and are found true beyond a reasonable doubt or stipulated
to by the defendant. (Stats. 2021, ch. 731, § 1.3.) Senate Bill 567 thus
altered the statutory scheme for selecting between triad terms under
section 1170 subdivision (b). (Stats 2021, ch. 731, § 1.3.) Moreover, the
parties agree that Senate Bill 567 applies retroactively and is applicable here
because judgment against Yamamoto is not yet final. (See People v. Flores
(2022) 73 Cal.App.5th 1032, 1039; In re Estrada (1965) 63 Cal.2d 740, 745.)
However, the parties disagree regarding whether remand for
resentencing is required under Senate Bill 567. The People argue it is not,
contending that the trial court properly imposed the upper term because
Yamamoto stipulated to an upper term. To this end, they emphasize that
Yamamoto’s trial counsel stated: “The defense concedes that with the facts
that have been presented and the findings from the jury, that an upper term
sentence is warranted.” Further, defense counsel requested the upper term
sentences for all but three counts, asking that the sentences run
concurrently. As such, the People maintain that Yamamoto “stipulated to all
the facts underlying all of the aggravating factors and agreed to the upper
term, and the trial court properly relied on the stated factors to impose the
upper term sentences.”
Yamamoto acknowledges his trial counsel’s stipulation here but argues
that it “was made without the benefit of [Senate Bill] 567’s . . . ameliorative
changes to Penal Code section 1170[, subdivision] (b).” This point is well
taken. At the time Yamamoto was sentenced, section 1170, former
39
subdivision (b), left it to the sentencing court’s “sound discretion” to select the
appropriate term within a sentencing triad that “best serves the interests of
justice.” (§ 1170, former subd. (b).) As the parties agree, Senate Bill 567
curtailed the trial court’s discretion during sentencing. As such, we place
little value on Yamamoto’s trial counsel’s stipulations or concessions during
the sentencing hearing wherein, at the time, the trial court had vastly more
discretion to select the sentence that it does under the current law.
Despite the change in the law, the People essentially argue the trial
court did not err. We disagree. Although defense counsel conceded that this
was an “upper term case,” he did so under the prior version of section 1170,
subdivision (b). Such a concession is not the same as a jury finding an
aggravated factor beyond a reasonable doubt or a defendant admitting that
factor. Rather, the record clearly shows that Yamamoto’s trial counsel made
a tactical decision in the context of the former subdivision (b). That strategic
choice is not of the moment in a post Senate Bill 567 world.
Typically, if we conclude that a trial court erred, we engage in harmless
error analysis to evaluate whether the appellant was prejudiced. For
sentencing errors like the one here, we adopted a two-step method for
determining the harmlessness when a defendant was sentenced to an upper
term before Senate Bill 567. (See People v. Lopez (2022) 78 Cal.App.5th 459,
465-468 (Lopez).)
“[T]he initial relevant question for purposes of determining whether
prejudice resulted from failure to apply the new version of the sentencing law
is whether the reviewing court can conclude beyond reasonable doubt that a
jury would have found true beyond a reasonable doubt all of the aggravating
factors on which the trial court relied in exercising its discretion to select the
upper term. If the answer to this question is ‘yes,’ then the defendant has not
40
suffered prejudice from the court’s reliance on factors not found true by a jury
in selecting the upper term.” (Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11.)
If, however, the answer to the question is “no,” then we apply the
harmlessness standard in People v. Watson (1956) 46 Cal.2d 818, 836, to the
trial court’s reliance on impermissible factors. (Lopez, at p. 467 & fn. 11.)
That is, we ask whether it is reasonably probable that the trial court would
have imposed a shorter sentence if the trial court had relied only on factors
that we are convinced beyond a reasonable doubt would have been found by a
jury beyond a reasonable doubt. (Ibid.; Watson, at p. 836.) If the answer to
that question is “yes,” then we remand the matter to the trial court for
resentencing. (Lopez, at p. 467, fn. 11.)
In the instant matter, Yamamoto argues in his opening brief that the
court erred under Senate Bill 567, he was prejudiced, and the matter must be
remanded for resentencing. Yamamoto did not discuss the harmless error
standard from Lopez in his opening brief, and the People did not discuss it in
their respondent’s brief. But Yamamoto had a good reason for his omission.
We had not yet issued our Lopez opinion at the time Yamamoto filed his
opening brief. However, that opinion was filed almost five months before the
People submitted the respondent’s brief. Not only did the People not discuss
Lopez, they neglected to address harmless error regarding Yamamoto’s claim
under Senate Bill 567 whatsoever. Accordingly, we construe the People’s
silence on this issue as a concession that if we conclude the trial court erred,
remand is required.
“ ‘Defendants are entitled to sentencing decisions made in the exercise
of the “informed discretion” of the sentencing court. [Citations.] A court
which is unaware of the scope of its discretionary powers can no more
exercise that “informed discretion” than one whose sentence is or may have
41
been based on misinformation regarding a material aspect of a defendant’s
record.’ [Citation.]” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; see
People v. Marquez (1983) 143 Cal.App.3d 797, 803 [“an erroneous
understanding by the trial court of its discretionary power is not a true
exercise of discretion”].) Here, although the trial court properly exercised its
discretion under the law as it existed at the time of the sentencing hearing,
its discretion was considerably limited under Senate Bill 567. As Senate
Bill 567 applies to Yamamoto because his case is not yet final, on the record
before us, it is clear the trial court could not have acted with informed
discretion and remand for resentencing is required. (Cf. Gutierrez, at
p. 1391.)
On remand, the prosecution may elect to proceed under the
requirements of the newly-amended version of section 1170, subdivision (b),
which would permit the prosecution to prove the existence of aggravating
factors beyond a reasonable doubt to a jury, unless Yamamoto waives the
right to a jury and agrees to have the factors decided by the court beyond a
reasonable doubt; alternatively, the prosecution may accept resentencing on
the record as it stands.
Yamamoto also contends that he is entitled to resentencing under
Assembly Bills 124 and 518. Because we have concluded that we must vacate
Yamamoto’s sentence and remand for resentencing, on remand the trial court
may revisit all of its prior sentencing decisions in light of all new legislation.
(See People v. Valenzuela (2019) 7 Cal.5th 415, 424-425, [“[T]he full
resentencing rule allows a court to revisit all prior sentencing decisions when
resentencing a defendant”]; accord, People v. Buycks (2018) 5 Cal.5th 857,
893.)
42
IV
ABSTRACT OF JUDGMENT
The trial court imposed, and the abstract of judgment reflects, a $680
court operations assessment (Pen. Code, § 1465.8) and a $510 conviction
assessment (Gov. Code, § 70373). The parties agree that the amount imposed
for each assessment was improper.
Penal Code section 1465.8 authorizes an assessment of $40 per
conviction, and Government Code section 70373 authorizes an assessment of
$30 per conviction. The jury convicted Yamamoto on 16 counts. Therefore,
the trial court should have imposed an assessment of $640 under Penal Code
section 1465.8 and $480 per Government Code section 70373. Therefore,
because we are remanding this matter to the superior court for resentencing,
the court can ensure that the amended abstract correctly states the amount
imposed for the subject assessments.
DISPOSITION
We vacate Yamamoto’s sentence. We remand this matter to the
superior court for resentencing consistent with this opinion. Further, after
resentencing Yamamoto, the superior court shall amend the abstract of
judgment to reflect Yamamoto’s new sentence as well as the correct amount
of the assessments accessed. In all other respects, the judgment is affirmed.
43
The superior court is to forward the amended abstract of judgment to the
Department of Corrections and Rehabilitation.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
DATO, J.
44