People v. Yang CA2/8

Filed 5/7/21 P. v. Yang CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B296271
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA116747)
v.
WEI YANG,
Defendant and Appellant.
APPEAL from the judgment of the Superior Court of Los
Angeles County. David C. Brougham, Judge. Affirmed with
conditional remand.
Eric S. Multhaup for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
Appellant Wei Yang was convicted of kidnapping for
robbery and making a criminal threat against his business
associate Dong Dong Chang. (Pen. Code, §§ 209, 422.)1 The trial
court sentenced appellant to life in prison for the kidnapping
conviction and stayed sentence on the criminal threats conviction
pursuant to section 654.
Appellant did not testify at trial or present other live
witnesses. He appeals from the judgment of conviction,
contending the trial court erred in denying his Batson/Wheeler2
motion; insufficient evidence supports the increased risk of harm
element of kidnapping for robbery; and trial counsel was
ineffective in failing to move for an acquittal on the kidnapping
for robbery charge and failing to urge the jury to acquit for failure
of proof on that charge. Appellant further contends his trial
counsel was ineffective in five additional areas: 1) failing to
investigate and present evidence victim Chang was a scammer
who had embezzled large sums of money and had a motive to
falsely accuse appellant of kidnapping; 2) failing to investigate
and present evidence that appellant had a character for honesty
and non-violence; 3) failing to request a continuance of the trial
to conduct a videotaped examination of Chang in China; 4) failing
to object to Deputy Brandon Seung’s repetition of virtually
everything Chang said to him, and 5) failing to object to the
deputy’s vouching for Chang’s honesty. Appellant contends that
even if no one instance of ineffective assistance is prejudicial, the
cumulative effect of those deficiencies is prejudicial.
1 All further unspecified statutory references are to the
Penal Code.
2 Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v.
Wheeler (1978) 22 Cal.3d 258 (Wheeler).
2
We find multiple errors in the trial court’s ruling that
appellant did not make a prima facie case of discrimination in his
Batson/Wheeler motion. We find such a showing was made and
we conditionally remand for further proceedings on that motion.
We otherwise affirm the judgment of conviction in all respects.
BACKGROUND
The kidnapping and criminal threats in this case began at
the Tea Station restaurant in Walnut, California, on November
17, 2017. Victim Dong Dong Chang had arranged to meet his
business associate Ms. Xin Ping Yu at the Tea Station to refund
money related to their common education consulting enterprise.
Chang brought two friends with him: Chao Ping Chen and
Runtao Deng. Yu brought appellant, co-defendant Lingyon Xia,
and two unidentified men with her.
After Chang produced one or more post-dated checks, Yu
took the checks and left. Appellant and his companions
commanded Chang to accompany them in a minivan to an area
bank where Chang was expected to withdraw cash and give it to
the men as part of the owed refund. Chang was not successful in
obtaining cash at the first bank or at a second bank in the same
plaza. The group then drove to a Citibank where Chang sought
assistance from a bank representative, telling her he was
withdrawing cash under duress from the men accompanying him.
The bank representative called 911 and Los Angeles County
Sheriff’s Department (LASD) deputies came to the bank and
arrested appellant. Appellant’s companion co-defendant Xia was
arrested the next day.
At trial, much of the evidence concerning the kidnapping
came in the form of Chang’s preliminary hearing testimony.
Chang, a Chinese citizen, returned to China after the incident.
3
He briefly came back to the United States to testify at the
preliminary hearing and then returned to China. Chang was
expected to return to California to testify at trial, but did not do
so for health reasons.
Chang’s two friends, Chen and Deng, were prosecution
witnesses at trial but did not recall much about the day’s events.
Specifically, they did not testify that they believed Chang had
been kidnapped. They openly followed Chang to the three banks
in their own vehicle and had their cell phones available at all
times.
Chang’s business associate Yu, to whom he gave the
checks, also returned to China after the arrests and did not
testify at the preliminary hearing or at trial. The two
unidentified men who accompanied Yu, appellant, and co-
defendant Xia to the Tea Station restaurant did not testify at
trial.
In his preliminary hearing testimony, Chang explained
that the Tea Station restaurant meeting was arranged at Yu’s
request. According to Chang, Yu introduced him to students who
wanted to study in the U.S. Chang collected documents from the
students. He gave the documents to appellant and co-defendant
Xia who provided application and other miscellaneous services.
Yu also collected money from the students and gave it to Chang,
who in turn gave the money to appellant and Xia. Chang
described himself as a middleman. Yu wanted Chang to refund
the down payments made by some students who were unhappy
with the business.
Chang brought checks totaling $50,000 to the meeting. He
also brought a release form he wanted Yu to sign stating that he
had refunded all outstanding money and had no more
4
responsibilities for the students. Chang no longer wished to be in
business with Yu and appellant; he found it too stressful.
According to Chang, after Yu got to know appellant and Xia,
“they wanted to kick me out. And [Yu] disclosed a lot of the
things of my company to them.”3
Chang asked Chen and Deng to accompany him to the
meeting because Yu’s family had called his mother in China and
threatened to make trouble for her at work if the money were not
repaid. Yu also had Chinese police investigate his mother.
Chang, who showed up at the meeting with two friends,
expected Yu to come to the meeting alone, but she arrived with
appellant, co-defendant Xia, and two unknown men. Chang was
nervous due to the prior threats by Yu and to a previous incident
when appellant had punched Chang and impliedly threatened
him by saying he knew where Chang lived.
3 On cross-examination, Chang acknowledged that he owned
a business in the education industry named California
International Education, but he stated he “did not conduct any
business in [the] name of the company” with Yu, appellant, and
Xia. He denied that Yu, appellant, or Xia had invested in his
business. He insisted he did not have a substantive business
providing educational consulting but was only a middleman.
Subsequent post-trial proceedings provide a complicated account
of Chang’s business activities and of his business relationships
with Yu, appellant, and co-defendant Xia. In the pending habeas
proceedings, students provided declarations showing Chang in
fact had his own business working directly with students on their
applications. In her declaration in support of the first new trial
motion, Yu stated that she was originally Chang’s client, invested
in his business, and referred students to him in exchange for a
referral fee. Yu also participated in the business arrangement
with appellant and Xia described in Chang’s testimony.
5
According to Chang, Yu and her companions surrounded
him and his friends. Appellant asked Chang if he had the check.
Chang testified he took out a check and the release agreement
and gave the check to Chen. Chen gave the check to Yu, who
walked away.4
Chang testified appellant then took a bullet out of his
pocket, showed it to Chang, and said he wanted Chang to walk
with him to another location. Chang did not want to go. Two
men were holding his clothing and telling him to go, but Chang
said he was not going. Chang’s friends asked what was going on,
and appellant replied that Chang had “ruined” him and he
wanted $300,000 plus a unit of property from Chang. Appellant
wanted Chang to produce $100,000 that day.
Chang tried to call his mother in China but she did not
answer. Appellant then took Chang’s cell phone and he and
another person “forcefully” took and pulled Chang away.
Appellant and one of the men told Chang he had to go to the
bank. Chang asked if he could drive himself or go in his friend’s
car, but they said no. Appellant and the two men then “dragged”
Chang to a gray minivan.
Inside the van, appellant asked Chang what bank to go to.
Chang said the China Trust Bank in Rowland Heights. Chang
testified that while the van was on the freeway, appellant pulled
out a knife and said: “ ‘How much does a finger of yours worth?’
And he started waving that knife to threaten me.”
4 Chang testified on cross-examination that it was three
checks totaling $50,000. Bank records produced at appellant’s
second motion for a new trial suggest Chang gave Yu three post-
dated checks totaling $50,000. The checks all subsequently
bounced.
6
At the bank, appellant and Xia went inside with Chang and
stayed behind him, “watching over my shoulders.” The men
stayed in the doorway in case Chang fled. There was no money
in the account. Chang testified that the “check I put down the
date of that very day . . . the money had already been withdrawn
at the time.”5
Appellant was very angry and threatened to take Chang
away if he did not produce the money. Chang was not clear what
that meant, but he suggested that he try to use his card at the
Citibank next door to obtain money. The bank told him there
was an issue with the card and they could not give him any
money.
The men escorted Chang back to the minivan. Appellant
asked if Chang could get money from his house. Chang
suggested that he try the Citibank in Rowland Heights on Colima
Road. Appellant told Chang that if he did not get money that
day, there was nothing appellant could do to ensure Chang’s
safety.
Appellant escorted Chang to the bank and watched him
from the doorway. According to Chang, he had a panic attack
and a representative from the bank noticed this and asked him
what was going on. Chang replied that he needed to get some
money. The representative asked him what he was going to do
with it. Chang testified: “So I told them that they forced me to
go in the car and they been asking me for money. And they kept
threatening me. [¶] I told the person from the bank please,
please get me the money so I can give it to them.”
5 Documents at the second new trial motion show this was
not true.
7
The representative told Chang to have a seat while he
called Citibank’s backup service. The representative kept telling
Chang it was fine. Chang looked outside, saw police cars, and
fainted.
On cross-examination, Chang clarified that co-defendant
Xia followed the van in a black Mercedes Benz SUV. Chang’s
friends also followed the van in their own car. Chang
acknowledged he did not tell anyone at the first two banks that
he was being kidnapped and forced to get money. He claimed
that at the first bank, appellant was keeping a close eye on him,
so he tried to “hint” to bank personnel but they did not
understand. Appellant was standing behind him, watching over
his shoulder the whole time.
Appellant stayed with Chang when he went to the teller at
the second bank. He was behind Chang and did not go outside.
Chang also testified that appellant came with him inside the
third bank, sat next to him, and did not leave until police arrived.
Chang added: “He also came to me multiple times to ask me
what is going on.” He then reaffirmed that appellant sat next to
him. Chang acknowledged he was familiar with “Julian,” the
Citibank representative who helped him during the kidnapping,
from previous visits.
Jun Chu, the Citibank representative who helped Chang,
testified at trial with a slightly different account of events. Chu
testified he was near the door when Chang arrived. Chang came
up to him and said, “You need to help me out.” Chu asked him
why, and Chang grabbed his arm and repeated, “You need to help
me out.” Chang had never touched Chu before. Chu could feel
Chang shaking. He seemed “frantic.” Chu guided Chang to a
desk where they sat down. Chang was still shaking, and he kept
8
looking around constantly. Chang was emotional and Chu
though he was scared.
According to Chu, Chang said: “ ‘I was brought to the bank.
I need to take money out of the account.’ ” “ ‘There’s people
waiting outside and you need to help me out.’ ” Chu spoke with
the bank manager, then moved Chang to a cubicle.
Chang indicated he was involved in a money argument
with people with some kind of weapons who were waiting outside
for him to withdraw money from his account and give it to them.
Chang repeatedly asked Chu to call the police. Chu had another
discussion with his bank manager, who told him to call the police.
Chu called police from the cubicle with Chang sitting next to him.
Chang seemed more scared during the phone call and kept saying
that Chu needed to get help and help him out.
At some point after Chang told Chu there were men
waiting for him outside, Chu looked up and saw three men
circling the area on foot. One of them came inside the bank. Chu
identified that man as appellant.
The prosecution showed Chu still photographs and
surveillance video from the time in question. Chu identified
appellant as the man in several photos entering and leaving the
bank. He remembered that at one point appellant came close to
the location where he and Chang were sitting, as was shown in
one of the photographs. Chu also observed footage taken while
he was in another area of the bank getting a directory to make
calls. That footage showed appellant walking up to Chang in the
cubicle and then walking away. Chu described it as appellant
“checking on” Chang.
On cross-examination, Chu acknowledged that Chang
calmed down while sitting in the cubicle, but then became frantic
9
and panicked during Chu’s phone call with police, more so than
he had been when he entered the bank. Chang did not faint until
police arrived.
Chang’s two companions at the Tea Station restaurant also
testified at trial. Deng testified that he knew Chang through
Chen. On November 17, 2017, Deng went with Chen to the Tea
Station restaurant to have lunch. He did not expect anyone else,
including Chang, to be there. At some point while Deng was
eating his lunch, appellant showed up. At another point, Chang
left. Deng then went driving with Chen.
Deng had previously given a more detailed statement to
sheriff’s deputies. He acknowledged telling them appellant
showed up with four or five people, including Xia and a female.
He also remembered telling deputies that Chang went into a
vehicle and that he said he very afraid. He did not recall making
other statements to the deputies. Deputy Seung later testified
that Deng told him Xia had said to stay away from the Tea
Station restaurant or his safety would not be guaranteed.
Chen and Deng followed the van in Deng’s own car, a white
BMW. They went to two banks. One was a Citibank. Deng
agreed the surveillance video showed him going inside a
Citibank. Deng explained that he wanted to use the restroom,
but was not allowed to. He returned to his car and played with
his cell phone while waiting for Chen. Police came and arrested
him. On cross-examination, Deng agreed he did not see appellant
threaten Chang, or show him a bullet or knives at the Tea
Station restaurant. Deng was in possession of a cell phone that
day until police arrested him.
Chen testified Deng was his roommate. Deng came with
Chen to the Tea Station restaurant on November 17, 2017. Chen
10
went there to meet Chang for a meal. Chang was going to give
money to Yu. When Yu arrived, she was accompanied by
appellant and Xia. Chen knew appellant and Xia. There were
also three other men whom Chen did not know.
Chang handed a check to Chen, who gave it to Yu. Chen
then walked over to the side of the Tea Station restaurant with
co-defendant Xia and an unknown man. They engaged in
“ordinary chatting.” Chen did not recall telling deputies that Xia
told him not to get involved. Deputy Seung testified Chen said
that Xia had told him he should not intervene because his safety
could not be guaranteed.
At some point, Chen looked over and saw Chang and some
others about to get into a gray Dodge van. Chang told Chen to
follow the van. Appellant went in the van with Chang. Xia
followed behind Chen in a black Mercedes. They all drove to a
bank in Colima. Appellant and Chang got out of the van and
walked to the bank. Chen and Deng followed on foot. Chang
looked nervous. Chang came out of the first bank and walked to
another bank in the same plaza. Chen watched him but did not
follow.
The group next went to a third bank, also a Citibank. Xia
drove away. Chang went inside. Appellant and Chen also went
inside for a little bit. Appellant was sitting for a short while.
When police arrived, Chen was detained.
Chen did not remember telling deputies he had messaged
Chang’s mother and told her to call the police. He did not
remember telling deputies the people with appellant were very
scary and he was afraid of them. He did not remember telling
deputies that Chang was timid, but he agreed Chang was “indeed
timid.”
11
On cross-examination, Chen confirmed he was not afraid of
appellant and Xia, and did not see appellant show Chang a bullet
or knives, or force Chang into the van. Chen never called the
police that day and there was nothing preventing him from doing
so. Chen testified Chang said he owed money to appellant and
Xia.
LASD deputies came to the bank in response to Chu’s call.
Appellant was arrested and two rounds of .45-caliber ammunition
were recovered from his right front pants pocket.
LASD Deputy Seung was the handling deputy. He
observed Chang on the floor of the bank and waited while fire
department personnel attended to him. Deputy Seung then
spoke with Chang while he was in the ambulance. Chang
appeared nervous and was shaky and shivering. Deputy Seung
decided to “pamper” him and “comfort” him. He held Chang,
hugged him and assured him he would be there for him during
the entire process. Deputy Seung did not speak Mandarin and so
he used Chu as an interpreter.
Chang told Deputy Seung that appellant and three to six
other individuals had kidnapped him from the Tea Station
restaurant and forced him to go around to banks and withdraw
money. Appellant said that he would chop off Chang’s fingers
and showed him two rounds of .45-caliber ammunition and said
that he will kill Chang and his mother in China. Appellant
showed him a knife wrapped with a white towel. After appellant
threatened to cut off Chang’s fingers, Chang decided to get into
the van with appellant.
12
Chang stated co-defendant Xia told Chang’s friends not to
intervene or he could not guarantee their safety. Chang also
stated appellant “forced” him to get into the van by showing him
the two rounds of ammunition and threatening him. Chang was
afraid and got into the van.
LASD Detective Derick Coleman testified about his efforts
to obtain surveillance videos for the locations involved in the
kidnapping. The detective obtained surveillance video from the
first bank China Trust Bank. Chang and appellant are both
visible on the video but are not together. Detective Coleman also
saw two men who were later determined to be Chang’s friends
walk into the bank.
Detective Coleman was unable to obtain any video from the
Citibank in the same plaza. The detective did obtain surveillance
video from the third bank, also a Citibank.
Detective Coleman went to the Tea Station restaurant, but
discovered the security cameras were inside the restaurant near
the back. The detective believed the kidnapping took place at
outside seating at the front of the restaurant. He attempted to
locate outside surveillance video from other businesses which
might have shown the front of the restaurant, but was
unsuccessful. Detective Coleman acknowledged he viewed video
from the restaurant but did not record or otherwise capture that
video.
LASD Detective Lorena Gomez testified about her
interviews with Chang at the Citibank and later. Chang was
hysterical and screaming. She had Chang transported to the
station. The detective attempted to speak with Chang a few
hours later, but he was so agitated that she had difficulty
understanding him.
13
Detective Gomez testified video was recovered from the Tea
Station restaurant and booked into evidence. The video was
played for the jury. The video showed only the inside of the
restaurant. The detective could not make out the outside of the
restaurant in the video.
Detective Gomez also testified about her investigation of
the Dodge minivan used in the kidnapping. The van was
impounded, and was searched in the Sheriff’s impound yard. She
found two knives wrapped in a white towel and a red cell phone.
She did not order the van, the knives, or the separately recovered
bullets to be fingerprinted or swabbed for DNA. She felt checking
the van would be futile because it was a rental vehicle. She did
order the black Mercedes fingerprinted and swabbed.
Detective Coleman spoke with Chang several times after
the incident, but he was always very emotional and she had
difficulty understanding him. She confirmed Chang told her that
Yu gave him $80,000 from students which Chang held for several
months while taking a vacation. When he returned, appellant
and Xia wanted him out of the business. Detective Coleman did
not show Chang the bullets or knives that were recovered.
The detective confirmed Yu was a suspect and had been
arrested at one point, but the detective had no plans to arrest her
on those same charges again.
The only defense evidence was a portion of Deputy Seung’s
recorded interview of Chang, which was played for the jury.
The jury convicted appellant and hung on the charges
against co-defendant Xia, who was then retried and acquitted.
Xia did not testify at his retrial and has not provided any
declarations in any of appellant’s post-trial proceedings.
14
The two unidentified men accompanying appellant and Xia
submitted declarations in support of appellant’s first motion for a
new trial but not the pending habeas petition. Yu submitted
declarations in support of appellant’s first motion for a new trial
and his pending petition for habeas corpus.
Appellant has subsequently provided two declarations in
support of his pending habeas petition.
DISCUSSION
I. Batson/Wheeler Motion
Appellant contends the trial court erred in denying his
Batson/Wheeler motion and this error deprived him of his
constitutional rights to due process and a representative jury.6
Though we typically “afford deference to a trial court’s
Batson/Wheeler rulings, we can only perform a meaningful
review when the record contains evidence of solid value.
Providing an adequate record may prove onerous . . . .
6 Respondent contends the motion was made by Jamon
Hicks, counsel for co-defendant Xia, and appellant waived this
claim when his trial counsel, Dominique Westmoreland, failed to
join that motion. We see no forfeiture. The record is clear that
Hicks was the attorney responsible for the defense’s joint
peremptory challenges. The two defense attorneys conferred
about the challenges, but Hicks spoke for the defense. In making
the motion Hicks stated: “[W]e have two Asian clients that are
being assisted by the Mandarin interpreter . . . we believe that
there is an effort by the prosecution to remove the Asians from
the panel.” No formal statement of joinder was necessary,
particularly since the record is clear that the trial court
understood the motion as a joint one, stating in post-trial
proceedings that “defense counsel, Mr. Hicks and Mr.
Westmoreland, made their Wheeler motion.”
15
Nevertheless, the obligation to avoid discrimination in jury
selection is a pivotal one. It is the duty of courts and counsel to
ensure the record is both accurate and adequately developed.”
(People v. Gutierrez (2017) 2 Cal.5th 1150, 1172 (Gutierrez).)
As set out below, the trial court erred in failing to find a
prima facie case of discrimination. Because the court did not
reach the second and third steps of the Batson/Wheeler analysis,
the record is not adequate to permit a complete meaningful
review. We remand for further proceedings.
A. General Law
A “ ‘prosecutor’s use of peremptory challenges to strike
prospective jurors on the basis of group bias—that is, bias against
“members of an identifiable group distinguished on racial,
religious, ethnic, or similar grounds”—violates the right of a
criminal defendant to trial by a jury drawn from a representative
cross-section of the community under article I, section 16 of the
California Constitution.’ ” (People v. Hamilton (2009) 45 Cal.4th
863, 898; Wheeler, supra, 22 Cal.3d at pp. 276–277.) Such a
practice also violates the defendant’s right to equal protection
under the Fourteenth Amendment to the United States
Constitution. (Batson, supra, 476 U.S. at p. 88; see also People v.
Cleveland (2004) 32 Cal.4th 704, 732.) The Constitution forbids
striking even a single prospective juror for a discriminatory
purpose. (Snyder v. Louisiana (2008) 552 U.S. 472, 478.)
It is presumed that the prosecutor exercised peremptory
challenges in a constitutional manner, and appellant bears the
burden of rebutting that presumption. (People v. Johnson (2015)
61 Cal.4th 734, 755.) In determining whether the presumption of
constitutionality is overcome, we apply the well-established
three-step inquiry set forth in Batson. (People v. Taylor (2009)
16
47 Cal.4th 850, 885.) The three-step procedure also applies to
state constitutional claims. (People v. Bonilla (2007) 41 Cal.4th
313, 341.)
At step one, “the defendant must make out a prima facie
case ‘by showing that the totality of the relevant facts gives rise
to an inference of discriminatory purpose.’ ” (Johnson v.
California (2005) 545 U.S. 162, 168.) In ruling on the motion, if a
trial court finds that the circumstances give rise to an inference
of discrimination, a trial court may consider whether the record
contains “readily apparent” and “obvious race-neutral grounds”
for the prosecutor’s use of a challenge to dispel that inference, but
“the very purpose of Batson’s first step is to elicit the
prosecution’s actual reasons for exercising its strikes when other
circumstances give rise to an inference of discrimination: ‘The
Batson framework is designed to produce actual answers to
suspicions and inferences that discrimination may have infected
the jury selection process. [Citation.] The inherent uncertainty
present in inquiries of discriminatory purpose counsels against
engaging in needless and imperfect speculation when a direct
answer can be obtained by asking a simple question.’ (Johnson v.
California, supra, 545 U.S. at p. 172.)” (People v. Rhoades (2019)
8 Cal.5th 393, 430–431 (Rhoades).)
Further, even when a trial court finds no inference of
discrimination at the first step, it is the better practice for a trial
court to ask the prosecutor to state her reasons for exercising the
challenge. As our Supreme Court has explained, although “a
party exercising a strike . . . has no obligation to articulate a
reason until an inference of discrimination has been raised
[Citation]—we have nonetheless repeatedly encouraged trial
courts to offer prosecutors the opportunity to state their reasons
17
so as to enable creation of an adequate record for an appellate
court, should it disagree with the first-stage ruling, to determine
whether any constitutional violation has been established.”
(People v. Scott (2015) 61 Cal.4th 363, 387–388 (Scott).)
“After all, when a trial court erroneously fails to discern an
inference of discrimination and terminates the inquiry at that
point, an appellate court is generally required to order a remand
to allow the parties and the trial court to continue the three-step
Batson/Wheeler inquiry. [Citation.] An investigation into the
prosecutor’s motives many years after the fact, when memories
have faded and the parties’ written notes can no longer be found,
is an inferior substitute for a contemporaneous record of the
prosecutor’s justification and the defendant’s response.” (Scott,
supra, 61 Cal.4th at p. 388.)
If the court finds the defendant has made a prima facie
case giving rise to an inference of discrimination, the inquiry
proceeds to the second step. At the second stage, the burden
shifts to the prosecutor to give “ ‘a “clear and reasonably specific”
explanation of his or her “legitimate reasons’ for exercising the
challenges.” ’ ” (Gutierrez, supra, 2 Cal.5th at p. 1158.) The
explanation must show a neutral basis for the challenge – not one
based on race, ethnicity, or similar grounds. (Ibid.)
At the third step, if the opponent indeed tenders a neutral
explanation, the trial court must decide whether the movant has
proven purposeful discrimination. (Johnson v. California, supra,545 U.S. at p. 168.) Here, the movant must show that it was
more likely than not that the challenge was improperly
motivated. (People v Mai (2013) 57 Cal.4th 986, 1059 (conc. opn.
of Liu, J.).) This portion of the Batson/Wheeler inquiry “focuses
on the subjective genuineness of the [prosecutor’s] reason, not the
18
objective reasonableness. [Citation.] At this third step, the
credibility of the explanation becomes pertinent.” (Gutierrez,
supra, 2 Cal.5th at p. 1158.)
B. The Motion Proceedings
Voir dire commenced on September 24, 2018. After the
prosecutor exercised her third peremptory challenge of the
morning on September 25, 2018, defense counsel made a
Batson/Wheeler motion, stating: “Yesterday, it is my
recollection, that there were three peremptory challenges by the
prosecution, one of which was Asian. Today there’s been three
Asians that have been kicked.” Defense counsel continued: “[W]e
believe that there is an effort by the prosecution to remove the
Asians from the panel. [¶] And, specifically, Your Honor, I
reiterate, it’s not just in the numbers but it’s in the manner to
kick three in a row.”
The trial court immediately responded: “So I’m going to go
ahead and deny the motion. [¶] I find the motion to be without
merit. . . . I look at the last two jurors that were excused by the
People, they were borderline for cause. Either side could have
probably challenged [them] for cause.” After discussing the
specific reasons the court believed provided “borderline” cause,
the court concluded by stating: “So I think the prosecutor would
be derelict in her duties if she didn’t excuse those two. So I don’t
see any pattern whatsoever.” The court than asked the
prosecutor if she would like to add anything to the record, but she
replied she “would submit at this point based on the court’s
comments.”
19
As part of the second new trial motion before the trial
court, appellant raised the issue of the trial court’s silence on two
of the four Asian-American jurors mentioned by defense counsel
in the Batson/Wheeler motion. The trial court stated: “I think
the estimate [defense counsel] gave at one point was four and it
may have been a different estimate at another point. But I think
four was the number. So he didn’t identify the four which is his
burden and so I went ahead and on my own to make the record
clear and identified the two that were which I recognized to be
Asians and made the record on those. [¶] If there were in fact
two other Asian jurors, counsel had a chance before and after my
remarks to identify those jurors by juror identification number. I
cannot guess who counsel is referring to.”7
Although defendants had the burden of showing
discrimination, there is nothing in the trial court’s ruling which
would have alerted defense counsel that the trial court believed
defense counsel had not sufficiently identified all four of the
Asian-American jurors. A moving party’s failure to initially
identify a juror by his or her juror identification number is not in
itself a reason to deny a Batson-Wheeler motion when the juror’s
identity is otherwise clear from the record. (People v. Motton
(1985) 39 Cal.3d 596, 604.)
7 It is not clear what the trial court means by its statement
that defense counsel had “a chance” to identify those jurors by
identification number. The court certainly did not invite further
input from defense counsel at any point. At the end of its ruling,
the trial court specifically asked the prosecutor if she had
anything to add. The prosecutor replied, “I would submit at this
point based on the court’s comments.” The court then responded:
“Thank you, both. [¶] Let’s go ahead and resume.”
20
Here, defense counsel clearly stated that “Today there’s
been three Asians that have been kicked.” Counsel described
them as being kicked “three in a row.” In fact, the prosecutor had
only used three peremptory challenges that morning. The three
challenges took place within minutes of each other. The
prosecutor excused (Asian) Juror 7059, defense excused
Juror 0450, the prosecutor excused (Asian) Juror 6042, defense
counsel excused Juror 5703 and the prosecutor excused (Asian)
Juror 3916. The entire process takes up two pages of the
reporter’s transcript. Defense counsel made their motion
immediately after the prosecutor struck Juror 3916. Under the
circumstances, defense counsel provided more than sufficient
information to identify the three jurors struck by the prosecution
on September 25, 2018. As later proceedings showed, the juror
stricken by the prosecutor the previous day was (Asian)
Juror 3680, who was readily identifiable as Asian by the
prosecutor from her notes because he worked in Chinese-
language media and his mother tongue was Mandarin.
The trial court immediately began discussing in some detail
the last two excused jurors, and referred to one by his juror
identification number (which had not been specified by defense
counsel). If anything, this suggests that the trial court
understood precisely which jurors defense counsel meant.
The trial court did not make any particular “record”
showing that these two jurors (Jurors 6042 and 3916) were or
were not Asian-American. Articulating the issue might have put
defense counsel on notice that the court had concerns about
21
establishing the ethnic identity of the jurors.8 The trial court
gave absolutely no indication it believed that only two Asian-
American jurors in all had been excused by the prosecutor. And
although the People now contend on appeal that Juror 7059 was
not Asian-American, the prosecutor did not dispute the juror’s
race in the trial court. In making the challenge, defense counsel
had stated without contradiction that the prosecutor had excused
four Asian-American jurors. Given that neither the court nor the
People questioned whether any of the jurors were Asian, there
was no reason at all for defense counsel to attempt to add
“evidence” to the record to show that Juror 7059 was in fact
Asian-American.
“It is the duty of courts and counsel to ensure the record is
both accurate and adequately developed.” (Gutierrez, supra,
2 Cal.5th at p. 1172.) Here, there is no question that the trial
court was simply incorrect in its unstated belief that that the
prosecutor had only excused two Asian-American jurors. Had the
court simply expressed this belief, the parties could have
explained then, as the prosecutor did in post-trial proceedings,
that Juror 3680, the juror excused the day before on September
24, 2018, spoke Mandarin as his first language and so was
undoubtedly Asian-American.9 Defense counsel also would have
8 Although the court referred to Juror 3916’s “language
issues” the court never specified what the juror’s first language
was.
9 When, in connection with the new trial motion, the trial
court finally expressed its belief that only two Asian-American
jurors had been excused, the prosecutor provided details of this
third juror who was clearly Asian-American based on the fact
that he spoke Mandarin as his first language.
22
had the opportunity to explain why they believed Juror 7059 was
Asian-American. We would have an accurate and fully developed
record for review. Due to the trial court’s rush to judgment, we
do not have additional evidence. We proceed, as did the parties
and the trial court, on the presumption that all four challenged
jurors were Asian-Americans.10
C. Step One – Prima Facie Showing
“Although the question at the first stage concerning the
existence of a prima facie case depends on consideration of the
entire record of voir dire as of the time the motion was made
[citation], we have observed that certain types of evidence may
prove particularly relevant. [Citation.] Among these are that a
party has struck most or all of the members of the identified
group from the venire, that a party has used a disproportionate
number of strikes against the group, that the party has failed to
engage these jurors in more than desultory voir dire, that the
defendant is a member of the identified group, and that the
victim is a member of the group to which the majority of the
remaining jurors belong.” (Scott, supra, 61 Cal.4th at p. 384.)
“[A]n inference of discrimination rises or falls based on the
circumstances in the record.” (Scott, supra, 61 Cal.4th at p. 390.)
Considering the “particularly relevant” factors on the record
before us we find the facts support a prima facie case giving rise
to an inference of discrimination.
Both defendants are Asian, the same race as the identified
minority group.
10 In light of our ruling, appellant’s Motion for Remand filed
July 10, 2020 is denied as moot.
23
The record shows that there was one Asian-American left
in the panel being questioned after the prosecutor excused the
four Asian-American jurors who were the subject of the Batson-
Wheeler motion.11
Thus, the prosecutor had stricken 80 percent (4/5) of the
Asian-American prospective jurors seated for questioning.
The record also shows that the prosecutor used four out of
its first six peremptory challenges against Asian-American
jurors, that is 66 percent (4/6). The defense pointed out that the
“overwhelming majority of the panel is not Asians,” but did not
provide any specific numbers. The court and counsel did not
dispute this assertion or provide any specific numbers.
As our Supreme Court has done, we “take notice of the
census data here in recognition of the possibility that the lack of
on-the-record comment simply reflects that the pool’s composition
was apparent to court and counsel at the time.” Asian-Americans
comprised slightly less than 14 percent of the population of Los
Angeles County in 2010.12 “Given the demographic makeup of
the community from which the jurors were drawn, unless [Asian-
Americans] were greatly overrepresented in the venire or
received hardship and cause excusals at much lower rates than
others, it is likely that they comprised substantially less than
50 percent of the pool.” (Rhoades, supra, 8 Cal.5th at pp. 429–
430.) Thus, the prosecutor’s use of her peremptories was
disproportionate.
11 The trial court actually stated that there were two Asian
jurors: Juror 3319 and Juror 4442. This is incorrect. Juror 4442
was called after the denial of the motion.
12 [as of
May 5, 2021], archived at .
24
The prosecutor does not appear to have asked any
questions of Juror 6042. She asked only a few questions of Juror
7059 and only after the juror raised a hand in response to a
general question addressed to the venire as a whole. The
prosecutor did question Jurors 3916 and 3680 at more length.
Thus, this is a mixed factor.
The only factor weighing against an inference is the fact
that the victim is not the same race as the dominant group in the
jury pool.
The inference created by these “particularly relevant”
factors could have been dispelled if the trial court found race-
neutral reasons in the record for the excusal. (Rhoades, supra,
8 Cal.5th at p. 431.) These reasons must be “apparent from and
‘clearly established’ in the record.” (Scott, supra, 61 Cal.4th at
p. 384.)
Such a reason is readily apparent and clearly established
for Juror 3680, who described a negative experience with the
Walnut sheriff’s station personnel, the very station which is
involved in this case. The same cannot be said for the other three
jurors.
There was almost no questioning of Juror 7059, and the
trial court did not discuss that juror in its ruling. Respondent
suggests that the juror’s affirmative answer to whether she or
someone close to her had “ever been arrested for or accused of a
crime” would provide a race-neutral reason for excusal. While
arrest for a crime has been recognized as a race-neutral reason
(People v. Riccardi (2012) 54 Cal.4th 758, 795), the juror’s reply
does not establish that she or a relative had ever been arrested.
There were no follow-up questions of the juror and her answer
could have involved someone being accused of a crime. That
25
accusation would not necessarily have been made by law
enforcement.
Respondent also suggests that Juror 7059 showed an
“apparent” distrust of police. The juror replied yes to a question
asking if she thought a police officer could “maybe not tell the
truth” on the stand. She then stated she did not think police
officers were inherently untrustworthy and would evaluate their
credibility on a “case-to-case” basis. This is an appropriate set of
answers and not a reason to strike a juror. Jurors are expected to
judge the credibility of all witnesses at trial, even police officers,
based on factors relevant to each individual witness.13
There does not appear to be an obvious race-neutral reason
for striking Juror 6042 that is supported by the record. The trial
court stated that the “previous juror is the juror that went home
and talked to her husband. While she did not talk to her
husband about the facts of the case . . . , she is already violating
my order by talking to her husband. And she now has developed
language issues that she is using as a request to be excused from
the jury after communicating quite a bit freely the last few days
and not expressing that need.”
13 Respondent describes the answers as equivocal and
contends the prosecutor was not required to accept the juror’s
answers at face value. Oddly, respondent relies on cases where a
prospective juror’s exposure to gangs might have biased jurors
despite the juror’s insistence it would not. Respondent cites no
experience of Juror 7059’s which might have made her answers
suspect.
26
The record does not show that Juror 6042 developed
language difficulties overnight. On the first day of jury selection,
Juror 6042 stated that she had difficulty understanding legal
terms in English. On the second day of jury selection, the juror
again expressed difficulty with legal terms, stating that “for daily
life and my work [my English] is okay. But when we discuss
about legal stuff, I’m not understand. For example, we discuss
like the cookie story yesterday. I don’t know what that mean[s].”
The court replied that it was not sure it understood the cookie
story either but “not everyone understands legal terms and we’ll
give definitions. But so far you’ve understood everything, is that
right?” The juror replied that she had not understood some legal
terms. Thus, the record shows that the juror expressed the same
concerns about her English skills on both days.
The trial court’s subjective belief that the juror was
manifesting language difficulties for the purpose of being excused
is not the sort of objectively race-neutral reason that is readily
apparent from the record. We note that the trial court did not
state that Juror 6042’s English comprehension was itself a
reason to excuse her. The juror did not express and the record
does not show that she had difficulty with everyday English. As
the trial court pointed out, legal terms would be defined.
The record also does not show that the trial court gave a
general order or instruction to prospective jurors telling them not
to discuss the case. It was not part of the trial court’s initial
remarks to the prospective jurors and the court did not admonish
27
the jurors not to discuss the case over lunch, during an afternoon
break, or at the end of the day.14
While defense counsel and the court questioned the juror
on her ability to refrain from discussing the case, they did not tell
the panel it should refrain from discussions before being selected
as a juror. When Juror 6042 stated that her husband was a
lawyer and often spoke to her in legal terms, and she did not
understand those legal terms, defense counsel asked: “Are you
going to be able to not talk to your husband about this case if
you’re a juror in this case?” Juror 6042 responded: “I think that
is a rule, right?” Hicks replied: “Yes. If the judge were to tell
you that when you go home you can’t speak to anybody about the
case or the facts of this case, say that you’re a juror right now, are
you going to be able to do that?” After the prospective juror said
that she would try her best, the court interjected: “It’s a very
simple court order, ma’am. So are you going to obey the court
order or not? The rules of the game involve when you’re in trial
till you’ve concluded your activities you cannot talk to others
about the case. So can you follow the order or not?” Juror 6042
replied: “Yes, I can.” (Italics added.) Thus, both the court and
defense counsel indicated that the no-discussion rule applied to
14 The next day, the court stated: “But please be reminded as
we discussed, there are some things we’ve asked folks to do and
we’ve had this conversation before, but we need you not to
discuss the case. And though we haven’t started the case yet, it’s
very important you not discuss the case with your husband or
anyone else.” The court’s comments suggest that the court
believed that it had told jurors not to discuss the case, but the
record contradicts that belief.
28
persons selected to be jurors and during the actual trial of the
matter.
The People suggest Juror 6042 might also have been
excused because she had close relatives who had been arrested or
accused of a crime. There is no indication in the record that her
relatives were arrested. She referred to her brother getting a “hit
and run” and stated her sister “was shoplifting.” Both incidents
could involve accusations, in the brother’s case by another driver
and in the sister’s case by store personnel, rather than arrests by
law enforcement personnel. The People did not follow up to
clarify.
We note that at the end of the People’s discussion in their
brief about arrests, the People suggest we should recognize that a
trial court which interacts with a juror “gleans valuable
information that simply does not appear on the record.” (People
v. Stewart (2004) 33 Cal.4th 425, 451.) We do not doubt this
general principle, but in evaluating whether a prima facie case
has been made or dispelled we are limited to facts established by
the record. And it is the trial court’s duty to make a clear record
of pertinent facts.
We also take issue with the trial court’s statements about
Juror 3916. The trial court stated Juror 3916 “came this morning
and said it was very, very hard for him to be here because of his
medical issues that now have surfaced today. He clearly was
making attempt aggressively by standing up and announcing
these things that he didn’t want to be here, and that is about a
race neutral a reason as one can use to excuse a juror.”
29
The trial court did not simply state that the juror’s medical
condition was a reason for excusing him. That would be a race-
neutral reason. The trial court found that the juror, by standing
up and aggressively announcing his medical condition, showed he
did not want to be there, which is a race-neutral reason to excuse
him. The court’s comments suggest that it did not believe that
the medical condition itself was sufficient to excuse the juror.
This is the trial court’s subjective opinion and is not the sort of
race-neutral reason which is obvious or apparent from the record.
The juror clearly explained it was uncomfortable for him to
sit. It is not clear whether he was trying to be excused or to be
accommodated. We are reluctant to find that the juror was ill
enough to be excused, given the court’s apparent skepticism of
the severity of his pain. We do not find the record developed
enough to obviously establish he was exaggerating, particularly
since the juror offered to show the court paperwork concerning
his injury or the injury itself, but the court declined. The court
told the juror: “The attorneys will take that into consideration.
All right?”
In sum, we do not find race-neutral reasons for the
challenges to the remaining three Asian-American jurors
sufficient to dispel a prima facie inference of discrimination.
D. Steps Two and Three: Inquiry of the Prosecutor and
Credibility Determination
Step two occurs after a prima facie case giving rise to an
inference of discrimination has been shown. Step two calls for
the prosecutor, not the trial court, to give race-neutral reasons for
challenging jurors. (Gutierrez, supra, 2 Cal.5th at p. 1159 [“What
courts should not do is substitute their own reasoning for the
rationale given by the prosecutor, even if they can imagine a
30
valid reason that would not be shown to be pretextual.”].) If the
prosecutor offers neutral explanations, the third step requires the
trial court to decide whether the defendant has proven purposeful
discrimination. (Id. at p. 1158.)
Obtaining actual explanations from the prosecutor at these
steps is critical because, as we noted above, “[t]his portion of the
Batson/Wheeler inquiry focuses on the subjective genuineness of
the reason, not the objective reasonableness. [Citation.] At this
third step, the credibility of the explanation becomes pertinent.
To assess credibility, the court may consider ‘ “ among other
factors, the prosecutor’s demeanor; . . . how reasonable, or how
improbable, the explanations are; and . . . whether the proffered
rationale has some basis in accepted trial strategy.” ’ [Citations.]
To satisfy herself that an explanation is genuine, the presiding
judge must make ‘a sincere and reasoned attempt’ to evaluate the
prosecutor’s justification, with consideration of the circumstances
of the case known at the time, her knowledge of trial techniques,
and her observations of the prosecutor’s examination of panelists
and exercise of for-cause and peremptory challenges.” (Gutierrez,
supra, 2 Cal.5th at pp. 1158–1159.)
The prosecutor’s actual, articulated reasons are also critical
to our review of a trial court’s determination at the third
Batson/Wheeler step. “We review the trial court’s determination
regarding the sufficiency of tendered justifications with ‘ “great
restraint.” ’ ” (Gutierrez, supra, 2 Cal.5th at p. 1159.) We will
affirm the ruling at this step if it is supported by substantial
evidence. (Ibid.) But “[a] trial court’s conclusions are entitled to
deference only when the court made a ‘sincere and reasoned
effort to evaluate the nondiscriminatory justifications offered.’ ”
(Ibid.)
31
Here, the trial court offered its own reasons for the
prosecutor’s peremptory challenges. Because it appears the court
was denying the Batson/Wheeler motion at the prima facie step,
the court was allowed to identify some neutral explanation based
on the record without first asking the prosecutor for the actual
reasons at that stage. (See People v. Lancaster (2007) 41 Cal.4th
50, 75.) Once past the prima facie step, however, a “ ‘prosecutor
simply has got to state his reasons as best he can and stand or
fall on the plausibility of the reasons he gives. . . . If the stated
reason does not hold up, its pretextual significance does not fade
because a trial judge, or an appeals court, can imagine a reason
that might not have been shown up as false.’ ” (Gutierrez, supra,
2 Cal.5th at p. 1159.) The trial court never reached the second or
third steps because it erroneously found appellant had not made
a prima facie showing giving rise to an inference of
discrimination. We decline to ascribe the trial court’s reasons to
the prosecutor. The appropriate remedy when the record is
devoid of the prosecutor’s articulated reasons for peremptory
challenges is conditional remand for the trial court to address the
second and third Batson/Wheeler steps: it should hear the
prosecutor’s reasons for the peremptory challenges and decide
whether they are credible. (People v. Johnson (2006) 38 Cal.4th
1096, 1103–1104.) “If the court finds that, due to the passage of
time or any other reason, it cannot adequately address the issues
at this stage or make a reliable determination, or if it determines
that the prosecutor exercised his peremptory challenges
improperly, it should set the case for a new trial. If it finds the
prosecutor exercised his peremptory challenges in a permissible
fashion, it should reinstate the judgment.” (Id. at p. 1104.)
32
To that end, we remand the motion to the trial court to
conduct step two and, if necessary, step three of the
Batson/Wheeler analysis. If the trial court finds on remand that
the motion should be granted, it may then vacate the conviction
and order a new trial.
II. Increased Risk of Harm in the Kidnapping for Robbery
Appellant contends there is insufficient evidence that the
asportation of Chang from the Tea Station restaurant, a public
place of relative safety, to three area banks, places of even
greater security, increased the risk of harm to Chang beyond that
necessarily present in the robbery. He further contends his trial
counsel was ineffective in failing to move for a judgment of
acquittal on the ground of insufficient evidence of substantially
increased harm and, separately, in failing to argue to the jury
that it should acquit appellant on the ground of insufficient
evidence of such harm.
Appellant was sentenced to life in prison for his kidnapping
conviction. This sentence requires the jury to find that “the
movement of the victim is beyond that merely incidental to the
commission of, and increases the risk of harm to the victim over
and above that necessarily present in, the intended underlying
offense.” (§209, subd. (b)(2); see People v. Daniels (1969)
71 Cal.2d 1119, 1139.)
It is well settled that a “conviction for kidnapping will be
affirmed if the method of transportation was so fraught with
danger that it increased the risk of harm (People v. Cleveland
(1972) 27 Cal.App.3d 820, 826 [104 Cal.Rptr. 161] (defendant’s
possession of weapons and threats of violence); People v. Milan
(1973) 9 Cal.3d 185, 193 [107 Cal.Rptr. 68, 507 P.2d 956]
(defendant’s possession of a gun during automobile ride
33
accompanied by threats); People v. Iverson [(1972) 26 Cal.App.3d
598, 601] (defendant drove car with knife at victim’s neck); People
v. Apo (1972) 25 Cal.App.3d 790, 796 [102 Cal.Rptr. 242] (victim
forcibly pushed and shoved, accompanied by threats)).” (In re
Lokey (1974) 41 Cal.App.3d 767, 771–772 [distinguishing People
v. Daniels, supra, 71 Cal.2d 1119].)
“ ‘Clearly, any substantial asportation which involves
forcible control of the robbery victim such as that occurring in
this case exposes [him] to grave risks of harm to which [he] would
not have been subject had the robbery occurred at the point of
initial contact.’ ” (People v. Lara (1974) 12 Cal.3d 903, 908.)
There is no requirement that a kidnapper keep a weapon trained
on the victim for the entire time of the asportation. “The crucial
inquiry under Daniels is whether a defendant, in the course of his
asportation of the victim for purposes of robbery, has created a
situation having a substantially increased potential for serious
harm to the victim. Such a situation is clearly brought into being
when, as in this case, the victim is forced to travel a substantial
distance under the threat of imminent injury by a deadly weapon.
The fact that the potential for serious injury inherent in such a
situation is not actualized during the course of the asportation
itself . . . is simply not relevant to the issue.” (Ibid.)
Here, Chang testified that appellant showed him a knife
and threatened to cut off a finger while both men were in the van
on the freeway. Knives were later found in the van. This is
sufficient evidence to support the jury’s finding that the
movement of Chang substantially increased the risk of harm to
him over and above that necessarily present in the robbery itself.
34
Because there was sufficient evidence of a substantially
increased risk of harm to Chang, trial counsel was not ineffective
in failing to move for a judgment of acquittal on the ground of
insufficient evidence of substantially increased harm or in failing
to argue to the jury that it should acquit appellant on the ground
of insufficient evidence of such harm.
III. Ineffective Assistance of Counsel
Appellant contends that his counsel was ineffective in
failing to investigate and present evidence of the victim’s bad
character and motive to lie and his own good character for
honesty and non-violence; failing to request a continuance of the
trial and apply to examine the victim in China; and failing to
object to numerous aspects of Deputy Seung’s testimony.
Appellant has the burden of proving ineffective assistance
of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) To
establish such a claim, appellant must show his counsel’s
performance fell below an objective standard of reasonableness,
and, but for counsel’s error, a different result would have been
reasonably probable. (Strickland v. Washington (1984) 466 U.S.
668, 687–688; People v. Ledesma (1987) 43 Cal.3d 171, 216–218.)
“A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” (Strickland v. Washington, at p. 694.)
“ ‘ “Because of the difficulties inherent in making the evaluation,
a court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action ‘might be
considered sound trial strategy.’ ” ’ [Citations.]” (People v.
Thomas (1992) 2 Cal.4th 489, 530–531.)
35
“When a claim of ineffective assistance is made on direct
appeal, and the record does not show the reason for counsel’s
challenged actions or omissions, the conviction must be affirmed
unless there could be no satisfactory explanation.” (People v.
Anderson (2001) 25 Cal.4th 543, 569.)
A. Bad Character
Appellant contends trial counsel conducted no “independent
investigation” of Chang and his embezzlement of student monies.
He claims that evidence of such behavior would show Chang as a
dishonest businessman who had a motive to lie and frame
appellant for the kidnapping and robbery, because appellant’s
arrest would give him an opportunity to escape to China and
from the consequences of his embezzlement. To show his
counsel’s failure to investigate, appellant points to three
declarations submitted in support of his first new trial motion, by
Yu, Lei Zhang, and Xiyuan Qui. The latter two men are the
unidentified males who were at the Tea Station restaurant with
Yu, appellant, and co-defendant Xia.
All three individuals faced criminal liability in this case.
Even if trial counsel was deficient in attempting to locate or
contact them, there is a high probability that Qui and Zhang
would have declined to testify being advised of their rights. The
trial court made it clear that it would have been required to
appoint legal counsel for Zhang if he appeared. Qui, who stated
that he rented the van and drove it from Arizona, refused to
testify at the new trial proceedings on Fifth Amendment
grounds.15 Thus, appellant has not shown a more favorable
15 The exact basis for the assertion is not clear. In his
declaration, Qui makes statements consistent with being in the
36
result would have been reasonably probable if counsel had
located and spoked with Qui and Zhang before trial, and the
portion of his claim based on counsel’s specific failure to
investigate these two men fails.
In his concurrent petition for writ of habeas corpus,
appellant has made a prima facie showing that trial counsel
undertook little or no pre-trial investigation or preparation.
Although Yu was represented by counsel and indicated a
willingness to testify, she was a suspect in this case and has
returned to China. She has submitted a declaration in support of
the petition for habeas corpus, and trial counsel’s failure to
investigate her availability and potential testimony are better
determined in those proceedings, as is the impact of that
testimony, if any.
B. Good Character
Appellant contends his trial counsel conducted no
investigation into his good character and thus never considered
van as Chang was driven from bank to bank, which would clearly
make him a potential aider and abettor. He stated that Chang
“told us to go to a Citibank” and then when he was unable to
obtain money at that bank “insisted that we go to a third bank.”
However, at the new trial hearing, the prosecutor stated that Qui
was not inside the van. The trial court asked defense counsel if
that was correct, and defense counsel replied: “No, Your Honor.”
He added: “[T]he witness will testify that Dong Dong Chang
consented to go with them and in the van.” In denying the
motion, the trial court nevertheless stated that Qui “wasn’t there
in the van at the time.” Lending the van to appellant and Zhang
could also give rise to criminal liability if Qui knew of and
intended to assist their criminal purpose.
37
this line of defense. He points to letters prepared for sentencing
from two friends and his parents as proof such evidence existed.
Appellant’s defense was that Chang’s account was an
inherently unbelievable fantasy which the police failed to
properly investigate. For example, defense counsel emphasized
that Chang’s friends followed along to all the banks and Chang
entered the banks by himself, facts that proved the kidnapping
claim was unbelievable. Appellant did not testify at trial. Thus,
trial counsel might have made a tactical decision not to offer good
character evidence for his non-testifying client. In order to be a
reasonable tactical decision, however, it must be “an informed
one . . . preceded by adequate investigation and preparation.” (In
re Jones (1996) 13 Cal.4th 552, 564–565.)
In his accompanying petition for writ of habeas corpus,
appellant has made a prima facie showing that trial counsel was
deficient in failing to hire an interpreter to communicate with
him. Appellant has also made a prima facie showing that trial
counsel undertook little or no pre-trial investigation or
preparation. Among the potential strategic choices impacted by
the lack of an interpreter and an investigation is counsel’s
decision not to present any witnesses, including appellant or
character witnesses for appellant. Trial counsel’s possible
deficiencies concerning good character evidence are thus more
appropriately evaluated in that habeas proceeding.
C. Continuance and Examination in China
Shortly before trial, the prosecutor filed a motion to admit
Chang’s preliminary hearing testimony, on the ground that
Chang’s health problems precluded him from returning from
China for the trial. Appellant contends his trial counsel was
ineffective in failing to move for a continuance and apply to
38
examine Chang in China pursuant to Evidence Code
section 1349.
Nothing in the record suggests Chang would have been
healthy enough to testify in any reasonable timeframe. Further,
the procedure is entirely voluntary (see People v. Salcido (2008)
44 Cal.4th 93, 131) and appellant has not shown that Chang
would have agreed to such a procedure. Thus, appellant has not
shown that competent counsel could have succeeded in examining
Chang in China, and thus has not shown that a more favorable
result would have been reasonably probable if trial counsel had
sought a continuance to conduct an examination of Chang.
D. Deputy Seung
Appellant contends his trial counsel was ineffective in
failing to object to Deputy Seung’s testimony about Chang’s
statements to him at the bank. Appellant contends this
testimony was not admissible because it consisted of prior
consistent statements of Chang.
Appellant has forfeited this claim by failing to identify the
specific testimony which amounted to prior consistent
statements. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246;
Cal. Rules of Court, rule 8.204(a)(1)(C).) The first third of the
nine pages cited by appellant contain Deputy Seung’s description
of Chang’s emotional state, which was based on the deputy’s own
observations of Chang. Then, not all of the statements in the
following pages are consistent with Chang’s actual testimony.
For example, Deputy Seung testified that Chang stated appellant
showed him two bullets. Chang testified to being shown only “a
bullet.”
Further, even assuming some of the repeated statements
were consistent, defense counsel might have made a reasonable
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tactical decision not to object because the uninterrupted
testimony of Deputy Seung would give the jury confidence that
they had heard the totality of Chang’s statement to Deputy
Seung about being “forced” into the van. That statement did not
contain any hint that appellant touched Chang or physically
forced Chang into the van. Specifically, Deputy Seung testified
Chang stated “He was forced to get into the van.” When asked if
Chang told him how he was forced, Deputy Seung replied that
“Yang displayed two rounds of ammunition and told Mr. Chang
that “ ‘what this round could do to you’ and Mr. Chang was
scared. He agreed to go into the van.”
At the preliminary hearing, Chang gave a much different
account of events surrounding the bullet(s) display and added a
claim appellant “and another two people dragged me to a gray
minivan.” Such inconsistencies between Deputy Seung’s
statements and Chang’s actual testimony had the potential to
call into doubt Chang’s version of events.
Appellant also contends his counsel was ineffective in
failing to object to Deputy Seung vouching for Chang’s credibility
during the following exchange. Deputy Seung: “I’ve gathered . . .
everything that I need I gathered and that was the completion of
my interview, and that’s why I walked out.” The prosecutor:
“Anything about your [sic] demeanor at that point suggests that
you felt Mr. Chang was lying to you?” Deputy Seung: “He was
not lying to me.”
This exchange occurred during what was essentially the
defense case. The defense had elected to play a portion of Deputy
Seung’s videotaped interview of Chang. While the record does
not reveal precisely which portion(s) of the videotape were played
for the jury, defense questioning suggests one purpose of playing
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the tape was to highlight expressions of disbelief by Deputy
Seung.
Defense counsel’s questions indicate Deputy Seung told
Chang at one point to calm down or “I’m not going to believe you
anymore.” At the end of the tape, Deputy Seung said “We’re
done. I’m out of here” and “Please tell me the truth” and “I need
you to be truthful.” It appears that this portion of the interview
concerned Chang’s business relationships with Yu, appellant, and
co-defendant Xia. At least one question asked by Deputy Seung
suggested that he had doubts about Chang’s veracity at that
point. Deputy Seung asked Chang why he would have $50,000 in
checks with him if he did not owe anyone money.
Defense counsel tried to get Deputy Seung to acknowledge
that he did not believe Chang and that he ended the interview for
that reason. Deputy Seung maintained that he did believe
Chang, and Deputy Seung’s statements were an interview
technique. Since defense counsel had questioned Deputy Seung
on his view of Chang’s credibility, the prosecutor was entitled to
ask questions on this topic on redirect. Further, Deputy Seung’s
answer added little to his earlier responses to defense counsel on
this topic. Thus, even assuming an objection would have been
sustained, there is no reasonable probability that appellant
would have received a more favorable outcome if Deputy Seung’s
answer had been stricken.
E. Cumulative Prejudice
Appellant contends that even if no one instance of
ineffective assistance was prejudicial, the cumulative impact was.
There are reasonable tactical explanations for almost all of the
claimed instances of ineffective assistance of counsel. We do not
second guess reasonable tactical decisions in the harsh light of
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hindsight (People v. Jones (2003) 29 Cal.4th 1229, 1254) or try to
guess if a different tactical decision would have resulted in a
more favorable outcome. It makes no sense to view counsel’s
decisions cumulatively to assess prejudice. Even if trial counsel
should have interviewed Qui and Zhang before trial and applied
to examine Chang in China, any prejudice from the lack of live
testimony from Qui and Zhang or videotaped testimony from
Chang is attributable to those witnesses acting in their own self-
interest, not to counsel’s failure to make timely efforts to secure
that testimony.
DISPOSITION
This matter is conditionally remanded for a hearing on
appellant’s Batson/Wheeler motion and further proceedings, if
necessary. The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
BIGELOW, P. J.
GRIMES, J.
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