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People v. Nghiem
Not Reported in Cal.Rptr.2d, 2003 WL 1796196
Cal.App. 4 Dist.,2003.
Apr 07, 2003 (Approx. 6 pages)



FOR EDUCATIONAL USE ONLY
Not Reported in Cal.Rptr.2d, 2003 WL 1796196 (Cal.App. 4 Dist.)
Not Officially Published
(Cal. Rules of Court, Rules 976, 977)
Only the Westlaw citation is currently available.

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.



Court of Appeal, Fourth District, Division 3, California.
The PEOPLE, Plaintiff and Respondent,
v.
Phat Phu NGHIEM, Defendant and Appellant.
No. G029385.
(Super.Ct.No. 99WF2686).
April 7, 2003.

Defendant was convicted in the Superior Court, Orange County, Super.Ct.No. 99WF2686, Carla Singer, J., of lewd and lascivious conduct, and he appealed. The Court of Appeal, Bedsworth, Acting P.J., held that: (1) trial court's instruction to jury to resume deliberations following declaration of deadlock did not amount to improper coercion; (2) defendant's speculative contention was insufficient to support his request for names, addresses and telephone numbers of jurors; (3) newly discovered evidence did not entitle defendant to new trial; and (4) exclusion of testimony of certain of defendant's proffered character witnesses was not abuse of discretion.
Affirmed.


West Headnotes

[1] KeyCite Notes

110 Criminal Law
110XX Trial
110XX(J) Issues Relating to Jury Trial
110k865 Urging or Coercing Agreement
110k865(1) k. In General. Most Cited Cases

Trial court's instruction to jury, during deliberations in prosecution for lewd and lascivious conduct, to resume deliberations following declaration of deadlock with an eye toward formulating questions helpful in clarifying issues of reasonable doubt and intent, did not amount to improper coercion; after jurors' initial indication that they were deadlocked, foreman volunteered that further clarification on reasonable doubt and intent might be helpful, but jury had not at that point posed any questions to court on such issues.

[2] KeyCite Notes

110 Criminal Law
110XX Trial
110XX(J) Issues Relating to Jury Trial
110k865 Urging or Coercing Agreement
110k865(1) k. In General. Most Cited Cases

Fact that jury returned verdict, in prosecution for lewd and lascivious conduct, following its initial declaration of deadlock and court's instructions to resume deliberations with an eye toward formulating questions helpful in clarifying issues of reasonable doubt and intent, without submitting any questions to court, was not evidence that court's instruction was improperly coercive, where court also reminded jury that it had instructions in written form.

[3] KeyCite Notes

230 Jury
230IV Summoning, Attendance, Discharge, and Compensation
230k76 k. Term of Service; Post-Trial Contacts. Most Cited Cases

Defendant's unsupported and speculative contention that jurors might have voted to convict him of lewd and lascivious conduct merely to end case and avoid having to return after holidays to resume deliberations was insufficient to support his request for names, addresses and telephone numbers of jurors, where defendant impermissibly sought to investigate jurors' mental processes.

[4] KeyCite Notes

110 Criminal Law
110XXI Motions for New Trial
110k937 Newly Discovered Evidence
110k945 Sufficiency and Probable Effect
110k945(2) k. What Constitutes Sufficient Evidence. Most Cited Cases

Declarations and medical records showing that doctor examined child victim prior to filing of charges against defendant and found no signs that victim had been sexually abused, although amounting to newly discovered evidence, were not such evidence as would render different result probable if case were retried and did not entitle defendant to new trial; timing of doctor visit was of minimal relevance given testimony of victim's mother that she did not recall exact date of doctor visit, and defense theory that victim's mother had questioned victim intensely over long period of time concerning victim's masturbation before victim named defendant was already before the jury.

[5] KeyCite Notes

110 Criminal Law
110XXI Motions for New Trial
110k937 Newly Discovered Evidence
110k938 In General
110k938(2) k. What Constitutes Newly Discovered Evidence in General. Most Cited Cases

Declarations and medical records showing that doctor examined child victim prior to filing of charges of lewd and lascivious conduct against defendant and found no signs that victim had been sexually abused amounted to newly discovered evidence, for purposes of defendant's post-trial motion, where child's mother had been unable to recall doctor's name or address prior to trial and defense counsel had been unable to compel doctor's presence or testimony at trial by subpoena.

[6] KeyCite Notes

110 Criminal Law
110XXIV Review
110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review
110XXIV(E)1 In General
110k1037 Arguments and Conduct of Counsel
110k1037.1 In General
110k1037.1(2) k. Particular Statements, Arguments, and Comments. Most Cited Cases

Defendant waived appellate review of his contention that prosecutor committed misconduct in closing argument by claiming that defense could have called witness whose identity was in fact unknown to defense, by failing to object to prosecutor's argument on such basis.

[7] KeyCite Notes

110 Criminal Law
110XX Trial
110XX(C) Reception of Evidence
110k675 k. Cumulative Evidence in General. Most Cited Cases

Exclusion of testimony of certain of defendant's proffered character witnesses was not abuse of discretion, in prosecution for lewd and lascivious conduct, where testimony of such witnesses would have been redundant of testimony of the 10 character witnesses defendant was permitted to call, each of whom testified at length to defendant's reputation for honesty, trustworthiness, integrity, morality and truthfulness. West's Ann.Cal.Evid.Code § 352.
Appeal from a judgment of the Superior Court of Orange County, Carla Singer, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steven T. Oetting, Lise Jacobson and Jeffrey Koch, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

BEDSWORTH, Acting P.J.
*1 Phat Phu Nghiem was convicted of sexually abusing two of his piano students, Eva and Susan. He contends the trial court coerced the verdict, wrongfully deprived him of the opportunity to investigate alleged juror misconduct, erroneously denied his motion for a new trial, and improperly excluded favorable evidence. Finding these contentions unmeritorious, we affirm the judgment.

* * *
Eva and Susan are sisters. In the summer of 1997, when they were ages 10 and 9 respectively, they began taking weekly piano lessons from Nghiem. Although the girls went to Nghiem's house together, he taught them individually, in the privacy of his office. During many of the visits, he kissed Eva on the lips and hugged her tightly. He also gave her a "hickey" on the neck once. On at least five different occasions, he touched her chest, buttock and crotch. The touching occurred over and under her clothing, and once he inserted his finger into her vagina. During Eva's last lesson, in June 1999, Nghiem put his tongue in her mouth when he kissed her, and he slipped his hand under her shirt.
Nghiem did not confine his lewd actions to Eva. During several of Susan's lessons, he kissed her on the lips and put his tongue in her mouth. He also touched her crotch and inserted his finger into her vagina.
Upon learning of this, An, the girls' father, confronted Nghiem. He did not accuse him of anything; he simply wanted to find out what happened. Nghiem told An he was sorry for touching Susan, but denied doing anything to Eva. Subsequently, Nghiem mailed An a "gut-spilling" letter in which he apologized for his "wrongful acts" toward Eva and Susan. Although he denied touching Eva in a sexual manner, he admitted embracing her and kissing her on the lips. He said he stopped doing so after Eva told him his actions were unwanted and illegal. Acknowledging the hurtfulness of his conduct, Nghiem said he was very sorry for inflicting pain on An's family. He said he was willing to accept the consequences of his "sins" and offered to pay for the girls' medical expenses. Unsatisfied with Nghiem's apology, An reported him to the police in September of 1999.
A few weeks later, a police officer representing himself as the girls' doctor talked to Nghiem on the phone. Nghiem said he kissed Susan on the cheek and lips and touched her vagina and buttocks over her clothing. Nghiem also admitted kissing Eva on her cheek and lips. However, he said he eventually stopped doing so because she didn't like it.

The Defense
Nghiem testified he did not molest Eva or Susan. He admitted kissing and hugging them at times, but said this was done purely out of platonic affection. When confronted by An, he told him he did not do anything wrong. However, An insisted otherwise and threatened to go to the police. Having spent time in a Vietnamese prison camp, Nghiem was terribly frightened by this prospect. To avoid police involvement, he wrote An the above-mentioned letter. According to Nghiem, the statements he made in the letter are not true. He said he also lied to the police officer who pretended to be the girls' doctor. Nghiem testified he was afraid to tell the officer and An the truth, because he feared they would contact the police if he denied molesting the girls.
*2 Hong, the girls' mother, testified she discontinued the piano lessons because the girls told her Nghiem was not a very good teacher. At the time, she did not suspect Nghiem of molestation. However, after the lessons ended, she found Eva masturbating on various occasions, which caused Hong great concern. One day, she called a medical clinic for advice. The receptionist referred her to a pediatrician and suggested she ask Eva if anyone had touched her inappropriately. When Hong broached the subject with Eva, she didn't want to talk about it, so Hong took her to see the pediatrician. Hong estimated this was about one to three months before the police became involved in September, although she was unsure of the exact timing of events. Following the visit to the pediatrician, Hong continued to question Eva about her masturbation. Eventually, Eva told her Nghiem had touched and kissed her in a sexual way.
Nghiem called several character witnesses, including a Buddhist monk and several of his piano students. They testified Nghiem conducted himself appropriately when they were with him and he enjoyed a reputation in the community for honesty and decency. Nghiem also elicited testimony from forensic psychologist Dr. Martha Rogers. Based on her examination of Nghiem, she did not believe he fit the pattern of a child molester. She opined it would be very rare for a person such as Nghiem, who is 59 years old with no known history of sexual misconduct, to suddenly start engaging in such conduct. Dr. Daniel Aldana testified he examined Eva and Susan as part of the investigation of the case and found no evidence of sexual trauma.

I
[1] Nghiem contends the trial court coerced the verdict by instructing the jurors to continue deliberating after they indicated they were deadlocked. We disagree.
Nghiem's trial lasted six days. Deliberations began on the afternoon of December 28, 2000 and continued into the following day. At three o'clock that afternoon, the jury sent a note to the judge indicating it was deadlocked. The court inquired of the numerical division, and the foreperson said it was 9 to 3. The court then asked each of the jurors if there was anything that could be done to break the deadlock. Each of the jurors answered no at first. However, the foreperson then brought up the fact the jury was struggling with the issues of reasonable doubt and intent. The foreperson mentioned, "It appeared as though some of the jurors had real concern with [those issues] and perhaps I don't know what you can do or say to help clarify that for us." That led to the following exchange:
"The Court: All right. [Foreperson], you have had the jury instructions in there to read and reread at your will, right?
"[Foreperson]: Yes we have.
"The Court: And yet you have not submitted any question to me concerning the jury instructions, any of them including the instructions on specific intent and the instructions on reasonable doubt, correct?
*3 "[Foreperson]: That's correct.
"The Court: If you had a specific question on any of the jury instructions you could ask that question, correct?
"[Foreperson]: Yes.
"The Court: And if the court could answer that question without simply rereading the jury instructions maybe the answer to that question would help break the deadlock, correct?
"[Foreperson]: It's possible.
"The Court: Well, in light of that my inclination would be to return you to the jury room at this time to see if you could formulate any question that the court could answer that might help you break the deadlock. Okay? So let's do that."
Defense counsel objected on the ground the court was "giving an indication to the jury that they should give up their vote, whichever way it may be." However, the court did not see it that way. It overruled the objection and instructed the jury to continue deliberations. Later that afternoon, the jury returned its verdict finding Nghiem guilty of lewd and lascivious conduct toward Eva and Susan.
Nghiem argues, "The fact that the jury could reach a verdict after stating that it was hopelessly deadlocked without any additional instructions from the court, the answering of questions, or rereading of evidence strongly suggests that the holdout jurors were simply coerced into a verdict by the trial court and the other jurors. Nothing occurred to explain why the holdout jurors changed their vote other than frustration with being required to give up more days of their lives for the case." Noting the verdict occurred on December 29th, Nghiem contends the jurors were particularly susceptible to coercion because juror number 12 had previously indicated he would be unavailable if the case went into the new year and other jurors presumably did not want deliberations to interfere with their holiday plans.
[2] We are not persuaded. Attempting to ascertain the jury's motives for reaching its verdict is not only a speculative venture, it is discouraged by the rules of evidence. (See Evid.Code, § 1150 [prohibiting any evidence to show its effect "upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined"].) For that reason, it is not particularly fruitful to guess what effect the holiday season had on the jury's decision-making process or why jury number 12 voted in favor of conviction. We do know that the jurors initially indicated they were deadlocked. But then the foreman volunteered that further clarification on reasonable doubt and intent might be helpful. Of course, at that point, the jury had not posed any questions to the court on these issues. So it was entirely logical for the court to instruct the jury to resume deliberations with an eye toward formulating such questions. This did not amount to coercion; it was simply an attempt to assist the jury in understanding the law. The court also reminded the jury it had the instructions in written form. It's quite possible the jury gained insight by rereading them and was then able to understand the legal principles sufficiently to reach a verdict. The mere fact the jury returned its verdict without asking any questions does not compel the conclusion that the judge's handling of the issue was improper. We find no abuse of discretion.

II
*4 [3] In a related argument, Nghiem claims the court should have granted his request for the names, addresses and telephone numbers of the jurors so he could investigate whether they engaged in misconduct. Again, we disagree.
Nghiem bases his argument on the same factors mentioned above in connection with his claim of judicial coercion--namely, that jury deliberations commenced late in December, and juror number 12 had previously indicated he would be unavailable if the trial lasted into the new year. Considering as well that the jury was initially deadlocked in its deliberations, Nghiem submits "it is reasonable to believe that some jurors voted guilty merely to end the case and avoid having to return in early January to commence deliberations."
As the Attorney General points out, Nghiem's argument is premised on the belief juror number 12 initially voted not guilty and then, along with two other jurors, changed his mind simply to wrap up the case before the start of the new year. But this is sheer speculation, which is insufficient to justify the release of jurors' personal information. (See People v. Wilson (1996) 43 Cal.App.4th 839, 852, 50 Cal.Rptr.2d 883.) More fundamentally, it is clear Nghiem's request for personal information was intended to solicit evidence regarding how the jury arrived at its verdict. As noted above, Evidence Code section 1150 prohibits the introduction of such evidence. " ' "This limitation prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors' mental processes or reasons for assent or dissent." [Citations.]' [Citation.]" (People v. Hill (1992) 3 Cal.App.4th 16, 27-28, 4 Cal.Rptr.2d 258.) Because Nghiem was not entitled to prove his claim of jury misconduct by delving into the jurors' mental processes, an investigation into this realm would have amounted to an unjustified intrusion into the jurors' privacy. Therefore, the trial court did not abuse its discretion in denying his request for disclosure.

III
[4] Nghiem also moved for a new trial based on newly discovered evidence. The evidence consisted of declarations and medical records showing that Dr. Nhuan Nguyen-Tong examined Eva in February 1999 and found no signs she had been sexually abused. Nghiem argued this evidence was significant because it contradicted Hong's testimony she took Eva to the doctor in the summer of 1999. In Nghiem's view, this not only impugned Hong's credibility, but also showed Hong subjected Eva to questioning about her masturbation for a substantial period of time before she implicated Nghiem. However, the trial court did not believe there were grounds for a new trial.
[5] We may not disturb this ruling absent a manifest abuse of discretion. (People v. Beeler (1995) 9 Cal.4th 953, 1004, 39 Cal.Rptr.2d 607, 891 P.2d 153.) No such abuse appears here. It is true Nghiem's newly discovered evidence could not have been produced at trial. That's because Hong was unable to remember Dr. Nguyen-Tong's name or address. And while the defense did ascertain her identity by the time of trial, their efforts to subpoena her were unsuccessful. The real issue in this case is whether the new evidence was such as to render a different result probable if the case were retried. (Ibid.)
*5 Nghiem asserts it was because, "A key issue in the case was the length of time [Hong] was badgering Eva about touching herself." That is an overstatement. While the time sequence was certainly relevant, it was by no means critical or even important. The new evidence did show that Hong actually took Eva to the doctor sooner than she said she did. But as the Attorney General points out, this would not have seriously undermined Hong's credibility because she admitted she was unsure about when the doctor visit occurred. She believed it was in the summer, a few months before the police became involved. However, she conceded, "I don't recall exactly when I went to the doctor." In light of this, proof of the precise date of the doctor visit would not have been particularly damning to Hong's credibility.
[6] Establishing the date of the doctor visit would have bolstered the defense argument that Hong put pressure on Eva to explain why she was masturbating. For if nothing else, this evidence would have permitted the defense to argue Hong questioned Eva for an extended period of time before she implicated Nghiem. However, as it was, the jury knew that Hong questioned Eva about the issue for one to three months. They also knew the questioning was rather intense. In fact, Eva testified Hong threatened to take her out of school unless she told her what was wrong. The evidence left no doubt that Hong was very disturbed over Eva's masturbation and that she was bent on finding out why Eva was inclined to this behavior. Knowing precisely when Hong began this endeavor was relevant to the case, but it was not a material consideration given what the jury already knew. Therefore, we cannot say the court abused its discretion in denying Nghiem's motion for a new trial. [FN1]


FN1. Nghiem also asserts the trial court should have granted him a new trial because the prosecutor committed misconduct in closing argument by asserting Nghiem could have called Dr. Nguyen-Tong as a witness. Nghiem submits this claim was patently unfair because, as noted above, he did not know Nguyen-Tong's identity before trial. However, because Nghiem did not object to the prosecutor's argument on this basis, the issue has been waived. (People v. Green (1980) 27 Cal.3d 1, 27, 164 Cal.Rptr. 1, 609 P.2d 468.)



IV
[7] Next, Nghiem asserts the trial court abused its discretion in refusing to let him call additional character witnesses. The point is not well taken.
Under Evidence Code section 352, evidence may be excluded "if its probative value is substantially outweighed by the probability that admission will unduly consume time, create a substantial danger of undue prejudice, confuse the issues, or mislead the jury. [Citation.] Cumulative evidence may be excluded on this basis. [Citation.] The court's exercise of discretion will not be reversed on appeal absent a clear showing of abuse. [Citation.]" (People v. Mincey (1992) 2 Cal.4th 408, 439, 6 Cal.Rptr.2d 822, 827 P.2d 388.)
Nghiem was permitted to call 10 character witnesses in his defense. That's about twice as many witnesses (character or otherwise) as are used by the defense in a typical criminal trial. These witnesses testified at length to Nghiem's reputation for honesty, trustworthiness, integrity, morality and truthfulness, which are the very traits Nghiem's proposed witnesses intended to address. Little wonder the trial court determined their testimony would not have provided any "new relevant information." The trial court also rightfully feared their testimony would have bogged down the trial. There was no abuse of discretion on this issue.

V
*6 Lastly, Nghiem complains the trial court precluded him from introducing evidence that he never told Susan to refrain from telling anyone about the alleged molestation. However, Nghiem did not attempt to introduce any such evidence. We therefore find his complaint to be unfounded.
The issue arose during Nghiem's direct examination of police investigator Michael Bedard. While asking Bedard about Susan's interview with a child abuse worker, the following exchange occurred:
"Q. Now, Susan numerous times throughout the interview was asked whether or not she had ever been told by Mr. Nghiem not to say anything to anybody, not to tell anybody, correct?
"A. Yes.
"Q. Now, isn't it true that it's very common that if, in fact, a child has been molested, that the person who molests them will tell them not to say anything, will infer that they might get into trouble, will coerce them, that it's very common that if a child has been molested that the person who's molesting them will tell them not to [say] anything; is that true?
"[Prosecutor] Objection. Relevance. Hearsay. Lack of foundation.
"The Court. Sustained.
"Q. Have you had contact with alleged child molesters in your experience in the past?
"A. Several, yes.
"Q. And in interviewing the various victims, have you had experience with the victims being told by the molester not to say anything?
"[Prosecutor] Objection. Relevance.
"The Court. Sustained.
"Q. How many times was Susan asked if she was told by the defendant not to tell anyone?
"[Prosecutor] Objection. Relevance.
"The Court. Sustained.
"Q. In the interview of Susan that you were watching, was she asked three times whether or not Mr. Nghiem every told her not to say anything to anyone?
"[Prosecutor] Objection. Relevance.
"The Court. Sustained."
Nghiem argues the court erred in sustaining the prosecutor's objections because "[t]he fact that [he] did not instruct the girls to not say anything about the incident to a third party demonstrates a lack of consciousness of guilt." But as the record clearly shows, he did not attempt to elicit this alleged "fact" from Bedard. Rather, he simply asked him if Susan had been questioned on this topic. And, as it turns out, Bedard admitted she had. Because defense counsel did not ask Bedard whether or not Nghiem had pressured Susan to keep quiet, Nghiem has no basis to complain about the lack of any such evidence.
The judgment is affirmed.

WE CONCUR: O'LEARY and ARONSON, JJ.
Cal.App. 4 Dist.,2003.
People v. Nghiem
Not Reported in Cal.Rptr.2d, 2003 WL 1796196 (Cal.App. 4 Dist.) Not Officially Published, (Cal. Rules of Court, Rules 976, 977)
END OF DOCUMENT