People v. Yu CA2/5 ( 2021 )

Filed 1/7/21 P. v. Yu CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B299439
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. BA457678)
v.
JASON YU,
Defendant and
Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Ronald S. Coen, Judge. Affirmed.
Spolin Law, Aaron Spolin, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Michael R. Johnsen,
Supervising Deputy Attorney General, Blythe J. Leszkay,
Deputy Attorney General, for Plaintiff and Respondent.
__________________________
The jury found defendant and appellant Jason Yu
guilty of sodomy by force (Pen. Code, § 286, subd. (c)(2)(A)1
[count 1]), forcible oral copulation (former § 288a, subd.
(c)(2)(A) [count 2]), assault with intent to commit rape,
sodomy, and oral copulation (§ 220, subd. (a)(1) [count 3]),
and false imprisonment by violence (§ 236 [count 4]) of
Mariana V.; kidnapping to commit rape of Airam H. (§ 209,
subd. (b)(1) [count 5]); sodomy by force (§ 286, subd. (c)(2)(A)
[count 6]), assault with intent to commit rape, sodomy, and
oral copulation (§ 220, subd. (a)(1) [count 7]), false
imprisonment by violence (§ 236 [count 8]), and criminal
threats (§ 422, subd. (a) [count 9]) against Eva E.; and
kidnapping to commit sodomy (§ 209, subd. (b)(1) [count 10]),
sodomy by force (§ 286, subd. (c)(2)(A) [count 11]), and
forcible rape (§ 261, subd. (a)(2) [count 12]) of Maritza M.
With respect to counts 1, 6, 11, and 12, the jury found
true the special allegation that Yu committed an offense
specified in section 667.61, subdivisions (b) and (e)(4). With
respect to counts 11 and 12, the jury found true the
allegation that Yu kidnapped the victim in violation of
section 207, 208, or 209.5 within the meaning of sections
667.61, subdivision (b) and (e)(1), and that Yu’s movement of
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
the victim substantially increased the risk of harm to her
within the meaning of sections 667.61, subdivisions (a) and
(d)(2).
The trial court sentenced Yu to a determinate term of
eight years in state prison, plus an indeterminate
consecutive term of life, plus a term of 80 years to life.
On appeal, Yu contends that the trial court erred by (1)
refusing to grant a continuance without following statutory
procedure, (2) refusing to allow him to discharge retained
counsel without a hearing, and (3) admitting evidence of
prior uncharged sexual offenses. Yu further contends that
there is not sufficient evidence to support the convictions in
any of the 12 counts against him.
We affirm the trial court’s judgment.
FACTS
Mariana V. (Counts 1-4)
Mariana, who was 60 years old at the time of the
crimes, had 12 prior convictions for prostitution, and
sometimes worked as a prostitute, but she was not working
on the night of April 21, 2017. She was on a street that was
known for being a place to meet men and do drugs, when Yu
stopped in front of her in a nice BMW. He asked if she
wanted to party, which she understood to mean “go
someplace, maybe sit around, conversation, food,” as well as
3
use drugs. She was hungry and hypoglycemic, so she got
into Yu’s car.
As they drove around, Mariana told Yu she was
hungry. He asked if she liked to get high, and she said yes.
Mariana pointed out several places to eat as they drove, but
Yu did not stop. He said he wanted to take her to a nice
hotel. They went to a motel, and Mariana asked if they
could get food and cigarettes. Yu said they could use the
phone in the room, so they went to the room. He gave her
$50 for food.
Yu told Mariana to sit on the bed, so she did. His
manner changed suddenly, and he pushed her down onto the
bed “real hard.” He put his arm around her, and she told
him to slow down. He then said, “Shut up, bitch.” Mariana
started screaming. Yu mocked her and tried to tear her
clothes. Mariana was wearing an expensive skirt, and she
was afraid Yu would damage it, so she offered to take it off.
Instead, Yu pulled it up to her waist.
Yu tried to penetrate Mariana’s anus with his penis.
She told him to stop. He was unable to penetrate her. He
pulled out a pipe and smoked it. He said, “Whoa, I’m really
horny now.” He tried to penetrate her anus about five times,
but was unable to. She repeatedly told him to stop.
Eventually Yu penetrated her, and it was “very painful.”
At some point, Mariana pushed Yu away, and ran for
the door. Yu pushed a table in front of the door and jumped
on top of it. He acted nice again and said, “Come on. How
come you’re trying to get away?”
4
Yu tried to put his penis in Mariana’s mouth, but she
fought him. He did not get it inside, but it touched her lips.
He put a washcloth in her mouth, and she pulled it out. He
put his hands around her neck and choked her. She pushed
him away. He put a belt around her neck and tightened it.
She put her hand between her neck and the belt to prevent
him from strangling her.
Mariana told Yu she had to pee and got up. Yu jumped
off the bed and tried to stop her, but she went into the
restroom and locked the door. Yu tried to get in, but she
kept the door locked.
Another guest at the motel heard arguing for about 10
to 15 minutes and called 911. He heard a woman yelling:
“Help. Call 911. I’m getting raped.”
Los Angeles County Sheriff’s Deputy Andrew Morse
responded to the scene in the early morning hours of April
22, 2017. He heard a woman inside a room saying, “Help.”
He got a key from the manager and entered the room. The
woman had locked herself in the restroom. She looked
frazzled and relieved to see the deputies. Deputy Morse
noticed an empty jar of Vaseline on the nightstand. Mariana
told the deputies what happened, and they transported her
to the hospital.
Deputy Morse got a copy of Yu’s identification from the
motel manager as the person who rented the room. Yu was
not in the room or in the area of the motel.
Nurse Carolyn Clark conducted a Sexual Assault
Response Team (SART) examination. The nurse described
5
Mariana as petite and disheveled—her makeup was running
down her face and her hair was messy. Mariana told the
nurse that Yu used Vaseline and put his mouth on her anus.
The examination revealed no injuries to Mariana’s anus.
Her vagina, near the urethra, was red and possibly bruised.
Inside her mouth, her left cheek had small, red abrasions.
The findings were consistent with Mariana’s report of what
happened. Mariana told the nurse that Yu had put a pillow
over her face, causing her to urinate. The nurse later
testified that when a person is deprived of oxygen, even for
15 seconds, it can cause a loss of bladder control.
DNA from Mariana’s left breast contained a mixture of
three people’s DNA, with Yu as the major contributor; no
conclusions could be drawn about the minor contributors.
DNA from her right breast was a mixture, with Yu as a
possible contributor.
Airam H. (Count 5)
Around 9:00 p.m. on February 26, 2012, 24-year-old
Airam was waiting for the bus in El Monte to go to work as a
food packer. She was running late and had just missed her
bus. Yu pulled up in a black Mercedes and asked if she
wanted a ride. She declined, and Yu said, “Don’t be scared.
I’m not going to do nothing to you.” He said his name was
Jason and told her he would take her where she needed to
go. She noticed a suit in his backseat, which made her think
he was on his way home from work. He seemed honest.
6
Airam got in the car and gave Yu her work address. As
they were driving, Yu put his hand on her breast over her
clothes. She removed it and asked him “if he could please
not do that.” He looked angry. Instead of turning right to
get on the freeway toward her work, Yu turned left. Airam
repeatedly told him to stop the car, but he did not. She did
not know where they were.
They talked in the car. Yu told Airam she had a
beautiful body. He said he was surprised she had two
children. He told her he wanted to put his mouth on her
vagina. She was upset and uncomfortable and told Yu she
wanted to leave. He told her to think about her kids because
she was all they had. He told her she could give him a lap
dance instead of going to work. She did not know what a lap
dance was. She kissed him to get it over with and asked,
“That’s what you want?” He asked why she insisted on going
to work when she could make more money with him. He put
about $150 in her hand. She threw it back at him. He put it
back in her hand.
Yu stopped at a motel and went to the office. Airam
tried to open the car door but could not. She was nervous.
Yu returned and said they could go to the room, but Airam
said, “I am not going to the room.” He got upset because he
had already rented the room. When she refused to go with
him, he grabbed her phone and went into the room. She
followed him but did not go inside. She was desperate to get
the phone back because it had pictures of her children, and
she had texted her address to a friend.
7
Airam threw the money at Yu and said, “I just want
my phone.” He said, “Come and get it.” He threw the money
back at her, and she picked it up. She was going to put it
under his windshield wiper, but he walked toward her, so
she ran away.
Airam felt ashamed and stupid for accepting the ride.
Her coworker encouraged her to call the police, and her
supervisor drove her to the police station the next day. She
had reported a previous incident to the police, but they did
not do anything. To ensure the police helped her this time,
she lied and told them Yu had grabbed her and pushed her
into his car.
On February 28, 2012, El Monte Police Officer Gerardo
Cueva located Yu in a room at the Siesta Motel. Yu
identified his car, which was a 2008 BMW. Officer Cueva
recovered Airam’s cell phone from Yu. Yu admitted it
belonged to a woman.
El Monte Police Detective Jeff Girgle interviewed Yu
on February 28, 2012. Yu drove a BMW and admitted
picking up a woman at a bus stop because “[h]e wanted to
spend some time with somebody.” His intention was not
specific to sexual intercourse. He said the woman he picked
up was not a prostitute; she was more of a “working girl”
because she had two children. Unprompted, he said that he
did not kidnap her or point a gun at her. He said he was a
Christian and would not have sex with someone he picked
up.
8
Yu said they drove around El Monte until he pulled
into a trailer park to buy methamphetamine. He then drove
to a motel on Garvey Avenue. It was a mile or two from the
bus stop where Yu picked up Airam. Yu said that he offered
Airam $120 to compensate her since he did not let her go to
work, and she took it. He was upset that she did not stay
and have sex with him even though he gave her money.
Eva E. (Counts 6-9)
Eva met Yu through a mutual friend a week prior to
the assault. He seemed really nice. They spoke on the
phone and exchanged messages. She never had sex with
him or sent him a sexual message. On the evening of March
31, 2016, Eva called Yu and asked him to take her to a
friend’s house because she did not have a place to stay. He
offered to get her a motel room and said he would “just chill
with [her] for a little bit” and then leave. He picked her up;
he had a nice car, but it broke down a short distance from
the motel.
Once inside the motel room, Yu and Eva smoked
crystal meth.2 Yu gave her $20, and she walked to 7-11 to
buy lottery scratchers.
When she returned, Yu lay on the bed and told Eva to
“come lay down with [him].” She declined. He offered her
money to have sex with him. He showed her about $200, but
2 Eva was a recovering drug addict and but had not
taken drugs for two years at the time of trial.
9
she said, “No.”3 Yu told Eva he was “going to have his way”
whether she took the money or not. She “felt like [she] was
in big trouble.”
Yu pulled out his penis and told Eva to play with it.
He stroked himself and put on a condom. She was
uncomfortable and said she wanted to leave. She went to
the door and started unlocking the four locks, but Yu pulled
her away.
Eva had almost gotten the door open when Yu grabbed
her throat and choked her. She pulled pepper spray from
her bra and sprayed his eyes and penis. He said, “I can’t
believe you did this to me, bitch.” She hit him in the head
with the room phone. Yu threw her onto the bed on her
stomach and put his full weight on her. He choked her with
his left arm around her neck. He pulled down her pants and
put his penis in her vagina and her anus. She was in a lot of
pain and thought he was going to kill her. She repeatedly
told him to stop and tried to fight back.
Yu stopped, and said, “[I]t burns, it burns. I can’t
believe you did this. I’m going to kill you.” She believed him
because of the look on his face and the way that he had been
choking her. She told him to put water on the areas to ease
the pain because she had heard that water would make the
pepper spray hurt more. He went to the restroom, and Eva
grabbed her phone and called 911. She unlocked the door,
3 Eva testified that she had never worked as a
prostitute, but she told Los Angeles County Sheriff’s
Detective Jonathan Bailey that she had previously.
10
and Yu ran from the restroom to try to stop her from leaving.
Eva got out of the room and ran to a church across the
street.
On April 1, 2016, at about 9:53 a.m., Monterey Park
Police Officer Vincent Vasquez responded to the 911 call. He
found Eva at the church across from the motel. She was
crying and rubbing her eyes. She appeared frantic and
anxious. She would stop talking and “winc[e] in pain while
holding her face.” Eva described her attacker, and Officer
Vasquez located Yu in the motel.
Yu let the officer into the room. Officer Vasquez
noticed redness on both sides of Yu’s head and above his left
eyebrow. He had an orange-colored stain on his face. His
shirt also had orange stains. His arm had bite marks, and
the back of his head was scratched. The room looked and
smelled like a lot of pepper spray had been discharged.
Pepper spray stains were on the headboard and a lamp.
There was money in the room, and a condom in the trash
can. There was a pepper spray can near a container of
Vaseline.
Photographs showed redness around Eva’s neck, and a
bite mark on her right shoulder. Her right arm was red
where Yu had squeezed and held her. Her right leg was
bruised.
Nurse Marcellina Johnson conducted a SART
examination of Eva. Eva was crying and appeared to be sad,
dejected, and upset. She had abrasions and bruises on her
11
body, as well as a bite mark on her shoulder. Bruising and
abrasions on her anus indicated anal penetration.
A swab of the interior of a condom from the motel room
contained a mixture of at least three contributors, including
Eva as the major contributor. The exterior was a mixture of
at least three contributors, with Yu’s and Eva’s profiles
included as possible contributors.
Monterey Park Detective Denise Ferrari processed Yu’s
BMW. Pills that appeared to come from a box of Rhino
Stamina Erection pills were scattered on the floorboard
throughout the car. A glass pipe was located under the
steering column.
Eva remained scared of Yu at the time of trial. She
was afraid he would kill her if he was released. She did not
know anyone named Airam or Maritza.
Maritza M. (Counts 10-12)
On January 29, 2017, at about 6:00 p.m., Maritza was
walking home when Yu stopped his car next to her and
rolled down his window. It was getting dark. Yu pulled out
his wallet and said, “Look, money. A lot of money.” Maritza
believed Yu mistook her for a prostitute, and she said “No,
thank you.” She continued walking, and Yu’s car slowly
followed. He repeatedly offered her money, and she said,
“No, thank you. No, thank you. No, thank you.”
After about 20 minutes, Yu got out of his car and
grabbed Maritza. He buckled her into the front seat and
12
“locked everything.” She tried opening the car doors but
could not. She pleaded with Yu repeatedly and said she had
a daughter at home waiting for her. She showed him a
photograph of her daughter. He said, “Shut up. Shut up.”
Yu turned around and drove to a dark, isolated area
where he parked. Maritza did not know where they were.
Yu got out, opened Maritza’s door, and pulled her out of the
car. She did not speak English, but she repeatedly asked
him to let her go in Spanish. Yu put her in the back seat
and grabbed her breasts and buttocks. Maritza showed Yu
her phone, but he grabbed it and threw it outside the car.
Yu removed Maritza’s shoes and pants, as well as his own
pants. She repeated “No, no, please,” but he continued. Yu
penetrated Maritza’s vagina with his penis. He turned her
over and penetrated her anus. He had a “very big thing,”
and her anus burned and bled. She felt desperate and
thought she was going to die.
When Yu was finished, he got dressed and left Maritza
there, “undressed and hurt and in pain.” She was crying.
She got dressed, and walked until she saw a woman who told
her which way Garvey Street was. The woman asked what
happened, but Maritza did not want to tell her. Maritza
“walked and walked until [she] reached Garvey.” She did
not have money, but she got on a bus and asked the driver to
let her ride for free. She was crying, and the driver saw “the
way [she] looked” and let her on the bus. She had trouble
walking because her private parts were burning.
13
Maritza got home very late. She was still crying and
took a bath to try to ease the burning sensation. Her
daughter, who was 17 years old, asked what had happened
and why she was so late, and Maritza told her. Her
daughter called Maritza’s son.
Maritza’s son took her to the Los Angeles County
Sheriff’s Station where Deputy Victor Benavidez spoke to
her. She was crying continuously and appeared sad, like she
had just been through a traumatic experience. Deputy
Benavidez and his partner took Maritza to the San Gabriel
Medical Center for a SART examination. Later, Maritza did
not remember the examination or speaking to the police.
She was not “in [her] right mind at [the] time.”
Registered Nurse Cassandre Walsh examined Maritza
on January 30, 2017. Maritza was “very tearful throughout
[the] interview.” She had bruising on her left wrist, left
thigh and knee, and right knee. She had multiple
lacerations on her anus and perineum. The tears were
caused by blunt force trauma. When Nurse Walsh
attempted to further examine the area with dye on a cotton
swab, the procedure was too painful for Maritza to complete.
A few days later, Maritza had blisters around the left side of
her waist.
Maritza’s underwear tested positive for the presence of
semen and blood. DNA from a sample on the underwear was
a mixture of Maritza and Yu.
Los Angeles County Sheriff’s Detective Liliana Jara
interviewed Maritza in her home. It was apparent that
14
Maritza was in severe pain when she tried to walk. Maritza
said that she would not have gotten “involved with a Chinese
man.” Maritza was able to describe her assailant, so
Detective Jara arranged for a sketch artist to draw a sketch.
Later, Maritza did not remember meeting with the sketch
artist, but she recognized the individual in the sketch as her
attacker.
On May 3, 2017, Maritza viewed a “six-pack”
photographic lineup, but she was unable to identify Yu’s
photograph. On May 30, 2017, Maritza was unable to
identify Yu in a live lineup. At trial, she did not remember
viewing a six-pack or a live line-up. Maritza later sent Yu’s
booking photograph, which was the same photograph used in
the six-pack, to Detective Jara, identifying him as her
assailant. She identified Yu at the preliminary hearing. At
trial, when she was asked if she recognized anyone in the
courtroom, Maritza looked at the jury twice before looking at
the entire courtroom and identifying Yu.
Detective Jara searched Yu’s BMW. The windows were
tinted. The side-view and rearview mirrors were broken. A
smoking device for narcotics was in the driver’s side area.
There was a condom inside the car.
Detective Jara obtained Maritza’s cell phone records to
triangulate her location based on calls made during the time
she was raped. Detective Jara also obtained Yu’s cell phone
records showing the cell tower locations where his phone was
used the night he attacked Maritza. Both Yu’s and Maritza’s
15
phones were located about four miles from the motel where
Yu claimed to have been that night.
Maritza did not know anyone named Airam, Eva, or
Mariana.
Interviews of Yu
Detectives John Bailey and Steve Reid interviewed
Yu.4 Detective Bailey showed Yu photographs of Airam,
Eva, Mariana, and Laura. Yu repeatedly said he did not
recognize or have sex with any of them. Yu resisted having
his DNA taken.
Yu told the detectives he drove a “space” gray, four-
door 535i BMW. Yu had a roommate, but he did not think
his roommate had ever driven his car, although he could not
be certain. Yu lost his identification card sometime that
month and had to replace it.
Yu said he had been baptized 15 years earlier and
could not have sex before marriage because it was against
the Bible. Before he was baptized, he did not like having sex
because he felt guilty afterward, so he abstained. He did not
have oral sex because that was considered sex. He prayed
away sexual urges. He could not give in to his urges because
he would not go to heaven if he indulged them. He would
rather die than give in and go to hell.
When asked if he had sex with a woman at the
Twilight Motel, which was where Mariana was attacked, Yu
4 A recording of the interview was played for the jury.
16
first denied it, but then said he did not remember that motel
and did not “remember if [he] had sex with somebody over
there.”
Detective Jara and Detective Marisa Farias
interviewed Yu less than a day later.5 Detective Jara
showed Yu a photograph of Maritza, and Yu said he did not
recognize or know her. Detective Jara falsely told Yu that
his DNA was found inside Maritza’s anus. Detective Jara
asked if Yu paid Maritza for sex, and Yu said it was possible,
but he did not remember if “that was the lady.”
Detective Jara said Maritza claimed she defecated
when Yu penetrated her anus in the back seat of his car. Yu
responded that he had hired a prostitute but did not
recognize Maritza. He said he did not remember a woman
defecating in the back of his car. He had a new car and
“would have gone to a motel. It would be much more like
classic.” He did not like anal sex.
Yu admitted that he “occasionally like maybe part[ied]
on the weekends,” but he would go to a motel and would pay
a prostitute; he would not have sex in the back of his car. He
had money for “high class prostitution” and did not need “to
be like back in my car and doing it all over my place.” He
said, “And that’s the part -- if that’s the case, that’s why she
[is] lying.”
Yu said if a woman is selling her body, “[t]hat means
she’s willing.” He explained, “she don’t like (unintelligible)
happenings, and she took the money. And she probably
5 A recording of the interview was played for the jury.
17
don’t like it, whatever, and she make a police report. That’s
what’s messed up. Because she’s a woman, and she wanted
to do it.”
Yu said that “it’s usually -- it’s not force or anything
like that. It’s probably, you know, money involved.” Yu said
he would not do anything with a woman unless she was
willing. He believed it was “messed up when they try to, you
know, put stuff against me. [¶] . . . [¶] Which they willing to
do, and they took the money, right, and that’s what’s messed
up.”
Yu was concerned about getting a ticket for
prostitution. After Detective Jara reassured him she would
not give him a ticket, he admitted taking a woman to a motel
for a “business transaction,” and that the woman defecated.
Yu described picking her up from the street around sunset.
He offered her a ride, and she agreed. She said she needed
money, and they agreed to the transaction in the car before
going to the Valley Motel. He said she “really want[ed] it.”
Once she said she had to leave, they stopped.
Yu said they were trying to have vaginal sex, and
“[m]aybe went the wrong -- probably hit the wrong place or
something . . . . [¶] . . . [¶] And then some water come out.”
Yu later said he did not notice whether anything came out.
He said they did not have sex because of his religion, but
they “probably were just poking it.” Yu said they “didn’t
even do anything. And [he] still give her the money.”
18
DISCUSSION
Request for Continuance
During an Evidence Code section 402 hearing just prior
to the start of jury selection, Yu requested a continuance
because he felt that his counsel didn’t “fully know [his] case.”
The court explained to Yu that defense counsel decides
whether to request a continuance. Yu’s counsel had declared
ready, and was prepared to try the case, so the request was
denied.
Yu contends on appeal that the trial court abused its
discretion by misinterpreting section 1050, subdivision (d),
which outlines a procedure for the trial court to employ when
the defense makes an untimely oral motion to continue a
hearing.
Section 1050, subdivision (b) requires that to request a
continuance, counsel must file “written notice . . . served on
all parties to the proceeding at least two court days before
the hearing sought to be continued, together with affidavits
or declarations detailing specific facts showing that a
continuance is necessary.” Subdivision (d) provides: “When
a party makes a motion for a continuance without complying
with the requirements of subdivision (b), the court shall hold
a hearing on whether there is good cause for the failure to
comply with those requirements. At the conclusion of the
hearing, the court shall make a finding whether good cause
has been shown and, if it finds that there is good cause, shall
19
state on the record the facts proved that justify its finding.
A statement of the finding and a statement of facts proved
shall be entered in the minutes. If the moving party is
unable to show good cause for the failure to give notice, the
motion for continuance shall not be granted.”
Yu has forfeited his contention by failing to request
that a hearing regarding good cause be held, or to request
that the reasons for the court’s denial be recorded in the
minute order. (See People v. Dudley (1967) 250 Cal.App.2d
Supp. 955, 960, disapproved on another ground in Pryor v.
Municipal Court (1979) 25 Cal.3d 238 [“defendant never
objected in the trial court to the failure to record the reasons
for the continuance in the minutes . . . [and] . . . cannot raise
this question for the first time on appeal”].) Regardless, his
claim lacks merit.
Although in isolation the language of section 1050,
subdivision (d) may appear to be mandatory (the trial court
“shall” hold a hearing and “shall” enter reasons into the
minutes), section 1050, subdivision (l) explicitly states that
section 1050’s provisions are directory, not mandatory. (See
Malengo v. Municipal Court of East Los Angeles Judicial
Dist. (1961) 56 Cal.2d 813, 816.) Accordingly, Yu’s argument
that the trial court’s failure to follow section 1050’s
procedures necessarily shows the court abused its discretion
by misinterpreting the law fails. The trial court’s denial of
Yu’s belated request for a continuance here was well within
the court’s reasonable discretion, regardless of the failure to
follow section 1050’s directory procedures. (People v.
20
Henderson (2004) 115 Cal.App.4th 922, 934 [trial court’s
denial of continuance reviewed for abuse of discretion].)
Request to Discharge Retained Counsel
After the trial court denied Yu’s motion for continuance
twice, Yu requested a continuance a third time:
“[Yu]: I don’t want to disrespect you, but after I’ve
been talking to my attorney, it seems that we’re not ready. I
would like to ask you to extend more time for me.
“The Court: For the third time, that is denied. No. . . .
“[Yu]: I need more time to hire another attorney Your
Honor.
“The Court: Well, sir, this is now untimely and I will --
this will interfere with the preparation of the evidence in
this case. Give me one second [¶] . . . [¶] In People vs.
O’Malley, O-M-A-L-L-E-Y, at 62 Cal.4th 944, the defendant
there are a long line of cases regarding restrictions on the
defendant’s request to discharge retained counsel. It will
disrupt the orderly process of justice, and we are moments
away from bringing in the jury. This is untimely and it
would be disruptive in order of the process of justice, and the
request to discharge your present counsel is denied. Giving
you time to hire another counsel, it is now too late and we
are proceeding to trial. [¶] . . .
“[Yu]: Your Honor, I need more time to hire another
attorney.
21
“The Court: Denied. All right. The jury will be in
momentarily. The defendant may remain right here.”
Yu contends that he is entitled to reversal because the
trial court denied his request to discharge retained counsel
without balancing his interest in retaining new counsel
against any disruption that might flow from the
substitution. This contention also lacks merit.
“The right of a nonindigent criminal defendant to
discharge his retained attorney, with or without cause, has
long been recognized in this state [citations], and is governed
by Code of Civil Procedure section 284, subdivision 2
[citations]. The right to discharge retained counsel is based
on ‘“necessity in view both of the delicate and confidential
nature of the relation between [attorney and client], and of
the evil engendered by friction or distrust.”’ [Citation.] . . .
[¶] A nonindigent defendant’s right to discharge his
retained counsel, however, is not absolute. The trial court,
in its discretion, may deny such a motion if discharge will
result in ‘significant prejudice’ to the defendant [citation], or
if it is not timely, i.e., if it will result in ‘disruption of the
orderly processes of justice’ [citations]. . . . [T]he ‘fair
opportunity’ to secure counsel of choice provided by the Sixth
Amendment ‘is necessarily [limited by] the countervailing
state interest against which the sixth amendment right
provides explicit protection: the interest in proceeding with
prosecutions on an orderly and expeditious basis, taking into
account the practical difficulties of “assembling the
witnesses, lawyers, and jurors at the same place at the same
22
time.”’” (People v. Ortiz (1990) 51 Cal.3d 975, 983–984, fn.
omitted.)
In this case, the trial court balanced Yu’s concern that
defense counsel was not yet ready to go to trial against the
state’s interest in proceeding to trial with a jury at the
ready, and determined that the state’s interest was greater.
On the day of trial, Yu asked for a continuance multiple
times based on his claim that defense counsel was not ready,
but he gave no indication that he wished to discharge
counsel until the trial court denied his request for
continuance a third time. Until that point, it appears Yu
intended to proceed with his current attorney, albeit with
extended time for preparation. Yu did not express any other
concerns regarding defense counsel, nor did he specifically
state what his attorney did not know about his case, or how
he would be adversely impacted if trial proceeded. Counsel
had represented Yu for almost a year and a half before the
trial commenced. Yu was present when counsel declared
that the defense was ready for trial five days before trial,
and had not contested that counsel was prepared to try the
case at that time. Nothing in the record indicates that Yu
had concerns about defense counsel’s performance prior to
the day of trial, which suggests that the request was a
dilatory tactic. The trial judge, who was very familiar with
defense counsel professionally, stated that he was confident
that counsel was well-prepared. The record shows that the
trial court discussed Yu’s concerns regarding his attorney
with him, and determined that they were unfounded.
23
In ruling on the motion to discharge retained counsel,
the trial court cited to People v. O’Malley (2016) 62 Cal.4th
944, in which our Supreme Court noted that “while ‘a
defendant seeking to discharge his retained attorney is not
required to demonstrate inadequate representation or an
irreconcilable conflict, this does not mean that the trial court
cannot properly consider the absence of such circumstances
in deciding whether discharging counsel would result in
disruption of the orderly processes of justice.’ [Citation.]”
(Id. at p. 1004.) The trial court stated that granting the
motion would “interfere with the preparation of the
evidence” and noted that the court was “moments away from
bringing in the jury”—i.e., it determined that the state’s
interest in the orderly processes of justice was greater than
defendant’s interest in discharging counsel. The trial court’s
denial of Yu’s motion to discharge retained counsel was not
an abuse of discretion.
Evidence of Prior Uncharged Sexual Offenses
In the People’s trial brief, the prosecutor moved to
admit evidence of prior sexual offenses under sections 1108
and 1101, subdivision (b), for purposes of proving propensity,
and showing motive, intent, absence of mistake, and plan.
The proffered evidence related to Yu’s rape and sodomy of
Laura H. in 2015, and Patrice G. in 2016.
Prior to trial, the court held a hearing on the matter.
The prosecutor argued:
24
“There are two individual witnesses we’d like to
introduce, based on [Evidence Code sections 1101,
subdivision (b) and 1108]. The first one is Laura H[.] The
second one is Patrice G. Laura H[.] was an individual who
the defendant had seen in the street and essentially had
stopped and asked whether, quote, unquote, ‘you want to
party?’ to which she believed that that terminology meant to
do drugs. The defendant then picked her up, took her to a
motel, and essentially asked her for sex, and continuously
asked her for sex, to the point when she declined his
requests, he began to then -- proceeded to sodomize and rape
her, which is extremely in line with the type of conduct that
he had done to the four named victims in this case.
“Patrice G. is a prostitute who was working the streets,
and this defendant had picked her up and, again, asked for
her services, but she never agreed to anal sex. She only
agreed to the vaginal sex, Your Honor. The defendant did
not take her declination as she had indicated, and continued
to sodomize her, which he did to the three of the four named
victims in this case.
“We would argue, Your Honor, that it goes to
propensity, and it does go to pattern of conduct by this
defendant.”
Defense counsel responded:
“There are multiple named victims in this case. If the
people believed in good faith that they had cases against
these two individuals, they would have filed charges against
them. I believe this is tenuous, at best. There were
25
prostitute/client disputes in this case -- in these two cases.
The people did not formally charge Mr. Yu with these two
charges. They are well within the limit, if we’re not talking
about something so far removed that’s outside that they
couldn’t charge it and they’re trying to show a pattern of
propensity. This is within the statute. They didn’t have
enough evidence to bring this forth for trial purposes, so now
they’re trying to end-run for a pattern push under 1108. I
believe it’s overly prejudicial. I do not believe it meets the
requirements, and I would ask the court to exclude this
evidence from testimony.”
The trial court ruled:
“Researching the law as I have, I am familiar with
People vs. Daveggio, D-A-V-E-G-G-I-O, and Michaud, at 4
Cal.5th 790.[6] Daveggio and Michaud held, to determine
whether evidence 1108 crimes are admissible, the Court
must, under 352 analysis -- Evidence Code 352 -- consider
such factors as its nature, its relevance, possible remoteness,
the degree of certainty, its commission, and the likelihood of
confusing, misleading, or distracting the jury from its main
inquiry, its similarity to the charged offense, its likely
prejudicial impact on the jurors, the burden on the
defendant in defending against the uncharged offense or
offenses, and the availability of less prejudicial alternatives
to the outright admission, such as admitting some, but not
all of the defendant’s other sex offenses, including irrelevant
6 People v. Daveggio and Michaud (2018) 4 Cal.5th 790.
26
inflammatory details surrounding the offense. In utilizing a
352 analysis as I am speaking, I am doing that.
“I do find that there are two incidences that are of
probative value under 1108 . . . and, as such, I would allow
their admission; however, it would be coming in solely under
[that section], and not under 1101(b).”
The court confirmed that the jury would be fully
instructed regarding the purposes for which the evidence
could be considered.
At trial, Laura H. testified regarding the incident with
Yu, but the prosecution did not present evidence of Yu’s
crimes against Patrice G.
Laura H.’s testimony was brief, occupying only 10
pages of transcript. Laura H. recounted that Yu called her
over to his car while she was waiting at a bus stop and asked
if she “partied.” She took this to be an invitation to smoke
methamphetamine. She accepted and got into the car with
Yu. She explicitly told him that she did not intend to have
sex with him, which he said was fine. He handed her a pipe,
which she smoked in the car. Yu procured a hotel room.
Laura H. accompanied him inside and they smoked
methamphetamine. Laura H. left the bedroom to go to the
bathroom. Yu tried to follow her, but she closed the door and
locked it. When she returned, Yu was naked. Laura H. was
concerned that this meant Yu wanted to have sex. She tried
to leave the room, but Yu blocked the door with a chair. She
told Yu that she did not want to have sex with him. Laura
H. then saw a pipe with more drugs in it, so she started
27
smoking again. Yu came up behind her, held her arms, and
unbuttoned her pants, and placed his penis between her
thighs and on her anus. Laura H. pulled her pants up and
kicked out behind her, knocking Yu onto the bed. She
grabbed $20 that was sitting on the nightstand and ran out
of the room.
The money on the table belonged to Yu. Laura H. stole
it to buy alcohol. She had a criminal record for stealing and
drug use. She was a drug addict and an alcoholic at the time
of the assault. She was not a prostitute and has never been
a prostitute. She never consented to Yu touching her. Yu
did not offer her money to go to the room with him. Laura
H. was not acquainted with any of the other victims in the
case.
Legal Principles
Evidence Code section 1108 provides for admission of
evidence of defendant’s commission of another sex offense in
a prosecution for enumerated offenses, including those
charged in the instant case. (Evid. Code, § 1108, subds. (a)
& (d).) Evidence offered pursuant to Evidence Code section
1108 is subject to exclusion under Evidence Code section
352. (Id. at subd. (a).) Accordingly, evidence of other sexual
offenses cannot be used in cases where its probative value is
substantially outweighed by the possibility that it will
consume an undue amount of time or create a substantial
danger of undue prejudice, confusion of issues, or misleading
28
the jury. (Evid. Code, § 352.) This determination is
entrusted to the sound discretion of the trial judge who is in
the best position to evaluate the evidence. (People v.
Falsetta (1999) 21 Cal.4th 903, 907, 916–919 (Falsetta);
People v. Fitch (1997) 55 Cal.App.4th 172, 183.)
“By reason of [Evidence Code] section 1108, trial courts
may no longer deem ‘propensity’ evidence unduly prejudicial
per se, but must engage in a careful weighing process under
[Evidence Code] section 352. Rather than admit or exclude
every sex offense a defendant commits, trial judges must
consider such factors as its nature, relevance, and possible
remoteness, the degree of certainty of its commission and the
likelihood of confusing, misleading, or distracting the jurors
from their main inquiry, its similarity to the charged offense,
its likely prejudicial impact on the jurors, the burden on the
defendant in defending against the uncharged offense, and
the availability of less prejudicial alternatives to its outright
admission, such as admitting some but not all of the
defendant’s other sex offenses, or excluding irrelevant
though inflammatory details surrounding the offense.”
(Falsetta, supra, 21 Cal.4th at pp. 916–917.) “‘[S]ection 1108
affects the practical operation of [Evidence Code] section 352
balancing[, however,] “‘because admission and consideration
of evidence of other sexual offenses to show character or
disposition would be no longer treated as intrinsically
prejudicial or impermissible. Hence, evidence offered under
[section] 1108 could not be excluded on the basis of [section]
352 unless “the probability that its admission will . . . create
29
substantial danger of undue prejudice” . . . substantially
outweighed its probative value concerning the defendant’s
disposition to commit the sexual offense or offenses with
which he is charged and other matters relevant to the
determination of the charge. . . .’” (Historical Note, 29B pt.
3, West’s Ann. Evid. Code [(1998 pocket supp.)] foll. § 1108,
p. 31.)’ (People v. Soto (1998) 64 Cal.App.4th 966, 984, italics
added.)” (People v. Loy (2011) 52 Cal.4th 46, 62.)
Analysis
Yu contends the trial court abused its discretion under
Evidence Code section 1108 by admitting evidence of his
prior uncharged sexual offenses against Laura H. and
Patrice G.7 Specifically, Yu takes issue with the trial court’s
ruling because “there was no information on the record by
which the Court could consider the ‘degree of certainty’ that
7 We do not discuss the trial court’s ruling admitting
evidence of Yu’s prior sexual offenses against Patricia G.
because no evidence of those crimes was presented at trial,
so Yu was not prejudiced. Although Yu states that he is
challenging admission of the evidence of prior uncharged
sexual offenses under Evidence Code section 1108, he does
not contend that that the prior acts were not “sexual
offenses” as required for admission under that section, but
instead challenges the degree of certainty that he committed
the acts and their inflammatory impact. Because those
issues are relevant to the trial court’s Evidence Code section
352 analysis, we presume Yu’s arguments pertain to
admission of the evidence under that section.
30
[Yu] committed the ‘uncharged’ acts. Nor was there
anything on the record to show that ‘[t]he testimony
describing defendant’s uncharged acts . . . was no stronger
and no more inflammatory than the testimony concerning
the charged offenses.’ [Citation.]” We find no abuse of
discretion and hold the evidence was properly admitted.
Nothing about the evidence of Yu’s sexual offenses
against Laura H. required the trial court to exclude it. Yu
appears to challenge the certainty that the offenses were
committed against Laura H. based on defense counsel’s
argument that the evidence was being offered as prior
offense evidence because there was insufficient evidence to
charge the crimes. There is no requirement that prior acts
must have been charged or prosecuted before they may be
offered as evidence. (See People v. Jandres (2014) 226
Cal.App.4th 340, 353, quoting People v. Lucas (1995) 12
Cal.4th 415, 466 [“‘[t]he court should exclude the proffered
evidence only if the “showing of preliminary facts is too weak
to support a favorable determination by the jury”’”].) The
jury is not required to find that a prior act was committed
beyond a reasonable doubt; it must find that the prior act
was committed by a preponderance of the evidence. (People
v. Avila (2014) 59 Cal.4th 496, 516.) Here, there was
sufficient evidence for the jury to do so. Laura H. testified,
and the testimony of a single witness suffices to prove a fact
by a preponderance of the evidence. (See Evid. Code, § 411
[testimony of one witness generally sufficient to prove any
fact]; People v. Young (2005) 34 Cal.4th 1149, 1181 (Young)
31
[testimony of one witness sufficient to support conviction
unless physically impossible or inherently improbable].)
In the trial court, Yu did not argue that anything in
the nature of the prior offenses made them unduly
inflammatory. The prosecution presented the crimes against
Laura H. as attempted rape and sodomy. Three of the four
victims in the charged offenses alleged that Yu completed
the same crimes against them, which was highly probative of
Yu’s propensity for such acts. Moreover, Yu’s prior offenses
against Laura H. were attempts, not completed crimes, and
thus less inflammatory than the crimes against those three
victims. “[T]he probative value of ‘other crimes’ evidence is
increased by the relative similarity between the charged and
uncharged offenses, the close proximity in time of the
offenses, and the independent sources of evidence (the
victims) in each offense.” (Falsetta, supra, 21 Cal.4th at
p. 917.) The similarity of the criminal acts and the fact that
a different victim was involved also supports the trial court’s
finding that the evidence was more probative than
prejudicial. The record establishes the trial court carefully
considered the evidence, was familiar with the applicable
legal principles, and made a reasoned decision. The trial
court did not abuse its discretion by determining that the
evidence of prior crimes against Laura H., which were
committed under circumstances very similar to those of the
instant crimes, was more probative than prejudicial, and
therefore admissible under Evidence Code sections 1108 and
352.
32
Sufficiency of the Evidence
Yu next contends that there was insufficient evidence
to support his convictions because none of the victims
presented credible testimony. We reject his arguments as
impermissible attempts to persuade us to evaluate witness
credibility and re-weigh the evidence, which we will not
entertain on appeal. Substantial evidence supports the
convictions.
When reviewing for sufficiency of the evidence, we
consider “‘“‘the whole record in the light most favorable to
the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable,
credible, and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable
doubt.’”’ [Citation.] ‘The standard of appellate review is the
same in cases in which the People rely primarily on
circumstantial evidence.’ [Citation.] ‘. . . [I]t is the jury
rather than the reviewing court that weighs the evidence,
resolves conflicting inferences and determines whether the
People have established guilt beyond a reasonable doubt.’
[Citation.]” (People v. Casares (2016) 62 Cal.4th 808, 823
(Casares), disapproved on another ground in People v. Dalton
(2019) 7 Cal.5th 166, 214.) “Thus, if the verdict is supported
by substantial evidence, we must accord due deference to the
trier of fact and not substitute our evaluation of a witness’s
credibility for that of the fact finder.” (People v. Jones (1990)
51 Cal.3d 294, 314.)
33
Yu asserts that Mariana’s testimony (counts 1-4) that
he sodomized and attempted to strangle her was not credible
because the SART nurse did not observe any outward signs
of injury to her neck or anus, and that her lack of credibility
on these points undermines the rest of her testimony. Yu
cites no legal authority for the proposition that a sexual
assault allegation must be supported by physical evidence of
injury or expert testimony. To the contrary, the testimony of
a single witness is sufficient to support conviction unless the
testimony is physically impossible or inherently improbable.
(Young, supra, 34 Cal.4th at p. 1181.) The law does not
support Yu’s assertion that we must overturn his convictions
for crimes against Mariana on this basis.
Regardless, the evidence against Yu in counts 1-4 was
overwhelming. In addition to Mariana’s testimony, the
SART nurse who conducted the exam noted that Mariana
was disheveled, her makeup was running down her face, and
her hair was messy. Her vagina was red and possibly
bruised, and she had small, red abrasions inside her mouth
and left cheek. Although there were no injuries to Mariana’s
anus, Mariana had reported that Yu used Vaseline when he
sodomized her. In the SART nurse’s opinion, the injuries
were consistent with Mariana’s account of events. Deputy
Morse observed an empty jar of Vaseline on the nightstand
in the hotel room. A DNA sample from Mariana’s left breast
showed Yu as a major contributor.
Yu argues that Airam (count 5) admitted she lied to the
police when she told them Yu pushed her into his car. Yu
34
also suggests that Airam’s failure to call for help on her cell
phone brings her testimony into question. Such
determinations are for the jury, which may choose to credit a
witness even if it believes portions of her testimony are
false.8 (People v. Flores (1968) 267 Cal.App.2d 452, 457
[“‘[t]he jury may reject any part of a witness’ testimony and
give credence to other portions’”].)
8 To quote Brandt v. Krogh (1910) 14 Cal.App. 39, 48
(Brandt), upon which Yu appears to rely (Yu cites to an
unpublished case, which in turn cites Brandt) in full: “[I]t is
obviously a mistake to suppose that, because a witness may
make inconsistent statements in the course of testimony
given by him, such testimony is, in its entirety, to be
disbelieved. The rule, ‘Falsus in uno, falsus in omnibus,’
does not mean that a witness’ entire testimony must
necessarily be disregarded or disbelieved because there may
be found falsehood in certain parts of it. The rule merely
means that where the witness is found to have sworn falsely
in a certain material part of his testimony, his entire
testimony may for that reason be rejected. But no one will
attempt to challenge the right of a jury or a judge, trying the
facts, to believe and credit certain parts of the testimony of a
witness who has been shown to have sworn falsely as to
certain other material parts thereof. [Moreover], this rule is
one which cannot well be invoked in a court of appeal on a
review of the facts. It, like any other rule which may be
resorted to by triers of facts for the purpose of weighing
testimony and measuring the credibility of witnesses, is
intended as a guide to those who must hear and see the
witnesses and thus receive the evidence at first hand.”
35
In this case, Airam explained that she had reported an
assault to police in the past, and nothing was done about it.
She was also embarrassed that she got into Yu’s car
willingly. She lied because she wanted to make sure the
police investigated the crime. Airam testified that Yu took
her cell phone when she refused to accompany him into the
hotel room. She did not regain possession of it until after the
attacks. Officer Cueva recovered Airam’s cell phone from
Yu, who admitted it belonged to a woman. In an interview
with police, Yu admitted that he had picked up a woman at a
bus stop, who he described as not being a prostitute, but a
“working girl” with two kids, which was consistent with
Airam’s account and her self-description.
Yu argues that Eva’s testimony (counts 6-9) that there
were four locks on the hotel door and that she hit Yu in the
head with a phone when trying to escape him, was
undermined by the prosecution’s failure to produce
photographs of the door or the phone.
The defense produced no evidence to rebut either of
these facts, but merely pointed to the prosecution’s failure to
provide photographic evidence in closing argument. There
was overwhelming evidence of the attack against Eva. Eva
testified that she sprayed pepper spray on Yu’s eyes and
penis. Police officers found Yu in a motel across the street
from the church where Eva sought shelter. Officer Vasquez
noticed redness on both sides of Yu’s head and above his left
eyebrow. Yu had an orange-colored stain on his face. Yu’s
shirt also had orange stains. His arm had apparent bite
36
marks, and the back of his head was scratched. The room
looked and smelled like a lot of pepper spray had been
discharged. Pepper spray stains were on the headboard and
a lamp. Photographs depicted redness around Eva’s neck
consistent with her testimony that he attempted to strangle
her. A SART nurse noted that Eva had multiple injuries,
including bruising and abrasions on her anus that indicated
anal penetration. DNA taken from a condom recovered in
the investigation included Yu and Eva as possible
contributors, which also supported her version of events.
Finally, with respect to Maritza (counts 10-12), Yu
argues that Maritza’s inability to identify him in a
photographic six pack or in a six-man in person line-up at
the county jail undermines her credibility. Other strong
evidence was presented to prove Yu’s identity, however.
DNA from a sample on Maritza’s underwear contained a
mixture of DNA from Maritza and Yu. Maritza described
Yu’s appearance to a sketch artist who drew a sketch that
Maritza recognized the as depicting her attacker. Maritza
sent a booking photograph of Yu to Detective Jara,
identifying him as her assailant. She also identified Yu at
the preliminary hearing, and at trial.
The People presented substantial evidence to establish
Yu’s guilt. The jury had all of the information it needed to
determine the effect of any inconsistencies on the victims’
credibility as witnesses. We will not second-guess its
findings. (See Casares, supra, 62 Cal.4th at p. 823 [“‘it is the
37
jury rather than the reviewing court that weighs the
evidence’”].)
DISPOSITION
We affirm the trial court’s judgment.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.
38