Opinion
D071404
11-09-2017
THE PEOPLE, Plaintiff and Respondent, v. CHAU N. DAO, Defendant and Appellant.
Law Offices of Russell S. Babcock and Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Eric Swenson and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD266307) APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed. Law Offices of Russell S. Babcock and Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Eric Swenson and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Chau N. Dao of unlawful use of personal identifying information of another without consent (Pen. Code, § 530.5, subd. (a); count 2), acquiring or retaining personal identifying information of one person with intent to defraud as a lesser included offense to the same offense involving 10 or more persons (§ 530.5, subd. (c)(1); count 3), possessing a payment card scanning device (§ 502.6, subd. (a); count 5), and conspiracy (§ 182, subd. (a)(1); count 7). The trial court granted Dao probation on condition that she serve 364 days in jail. Dao contends the court erred by (1) failing to conduct a hearing to determine whether she was "mentally absent" from the trial; (2) conducting parts of the trial in her absence, which violated her rights to confront witnesses and due process; (3) barring her from presenting evidence of medical conditions that assertedly bore on her mental state, depriving her of her right to present a defense; and (4) instructing the jury with CALCRIM No. 372 on a defendant's flight without evidence to support the instruction. We affirm the judgment.
Statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Dao does not challenge the sufficiency of the evidence of her convictions, so we need not recount her offenses in detail. In February 2016, Dao's associate, Misael Zaldivar, acting as Man Nguyen, used a credit card in Nguyen's name to pay for over $2,200 in repairs to Dao's 2007 BMW. The next month, police arrested Zaldivar for using forged identification and credit cards and he was ordered to appear for a felony arraignment. On April 6, 2016, the day before his scheduled arraignment, he and Dao (with Zaldivar using a forged identification card under a different name and Dao using her own identification) unsuccessfully attempted to board a plane to Hawaii with luggage containing card scanning equipment and modified cards bearing various names. Officers detained Zaldivar, but not Dao, and she left the terminal as harbor police searched for her.
Two days later, Dao and her companion Thanh Nguyen were seated outside Department 12 of the San Diego Superior Court for Zaldivar's arraignment, when two harbor police detectives with their credentials displayed recognized and made eye contact with Dao as they approached the courtroom for the arraignment. Dao looked down as they walked into the courtroom. After the detectives entered, they notified the bailiff they wanted to take Dao into custody, but when they stepped back out about a minute and a half later, she was gone. The detectives searched for Dao in the hallways and checked with the main entrance deputies, who confirmed she had left the building. Dao was arrested later that month.
In her defense, Dao testified that Zaldivar took her car for repairs without her knowledge, and she did not see a receipt or the repair paperwork. She testified that she was not aware that Zaldivar had been detained by harbor police at the airport. According to Dao, she passed through security to her gate but missed the flight while she waited for Zaldivar, then left the airport after shopping at the airport gift shop. She testified she did not know about Zaldivar's multiple credit cards, hear any announcements calling for her, or attempt to hide from anyone at the airport.
Thanh Nguyen testified that he accompanied Dao to Zaldivar's arraignment and waited in the courthouse for a while, but then left with her because he received a call to go to a job and they had carpooled together. He denied that he and Dao were in a hurry to leave that morning, and testified that no one asked them to stop.
Zaldivar testified that Dao did not know about the fraudulent credit card equipment he had packed in their luggage. He told Dao to write her name on all of the luggage tags at the airport. He denied that he and Dao agreed to commit crimes.
DISCUSSION
I. Hearing to Determine Dao's Mental Capacity to Defend Herself at Trial
A. Background
Before jury selection, defense counsel advised the court about Dao's language difficulties, her previous bout with cancer, and her pregnancy:
"[Defense counsel]: I think this might be a good point to bring to the court's attention Ms. Dao's [¶] . . . [¶] . . . language issues as follows: She is a U.S. citizen. She was born and raised here, but she has lived her life predominantly in the Vietnamese community and speaks Vietnamese but not that well. Her English is better than her poor Vietnamese. However, Ms. Dao suffered brain cancer, had brain surgery and that was followed by chemo[therapy] and that chemo[therapy] as well as the cancer and the treatment for it seems to have adversely impacted her language skills to a degree. I have struggled but successfully with Ms. Dao for several months now as has my English-speaking private investigator, but I can tell the court—and this is kind of by way of forewarning—that it is very cumbersome, if not difficult, to talk to Ms. Dao. [¶] She also now has suffered a relapse of her brain cancer. She has a tumor. And she resists or does not wish to undergo the chemotherapy, which one side effect of that was it completely wiped out her memory. So she's now presently diagnosed with this but not taking chemo[therapy]. [¶] She's also pregnant on top of everything else. She's a month along in that regard, and as a result, this doesn't have much to do with her language skills, but there will be possibly occasions when she has to use the court's wastebasket just to be forewarned. [¶] . . . [¶] . . . So if that covers all the aspects of language issues, I hope it has, but the bottom line, she speaks English, your honor."
The court acknowledged it had been forewarned about Dao's possible pregnancy-induced nausea. Later that day, the parties addressed the People's in limine motion to exclude evidence of Dao's health conditions, and particularly her brain cancer, without expert testimony, so as to avoid invoking the jury's sympathy. Defense counsel responded: "I think it's going to be immediately evident to the jury that Ms. Dao experiences difficulties understanding what's going on. Even before she testifies, I suspect they're going to be looking over here and seeing how she doesn't seem to register. [¶] And so in voir dire, I did want to ask members or jurors if they would have any qualms with the fact that they're going to have to be real patient with Ms. Dao should she take the witness stand, that they're going to have to relax and let her try to explain it because it's laborious. And why that is the case she tells me, and I do have medical records to substantiate it, is secondary to these brain problems."
On the first day of witness testimony several days later, the court noted that Dao's counsel had advised it that Dao was late to arrive that afternoon due to her experiencing medical issues. As the court put it, Dao had experienced "I guess a seizure disorder that is a problem as well as her pregnancy. And I guess getting here she experienced a couple of waves of nausea, and I think since she's been here in the courtroom I think she's had a couple incidents of nausea." The court asked counsel how he wanted to proceed, observing that Dao "doesn't look well at all." Counsel asked the court to take the afternoon off after completing one witness's testimony. The court asked whether Dao would get medical attention, to which her counsel responded, "Your honor, she's experienced this, in my presence, a couple of times where she was quite ill one day and the next day looked pretty chipper." He advised the court that he thought she had taken her nausea medication the day before but that she had not taken her medication that day. In response to questioning, Dao told the court she took medicine four times a day, but was not taking it, "Because if I take it, I fall asleep." The court agreed to recess trial the rest of the afternoon, explaining to the jury that Dao was not feeling well, that she had "in your presence demonstrated that she's experiencing some nausea" and expected to continue to be nauseous during the rest of the afternoon, and they would recess "so Ms. Dao can get to feeling better to proceed with trial."
On the previous day, Tuesday, September 27, 2016, voir dire, preinstructions and opening statements took place.
Two days later on the morning of September 30, 2016, a Friday, Dao did not appear for trial. Defense counsel advised the court that his investigator had reported she had fallen on her stomach and felt she needed to see a doctor. The court asked her counsel what verification he had of Dao's pregnancy, and counsel advised the court he had 40 pages of her "complete medical record . . . discuss[ing] her brain tumors and her pregnancy" and that she was about six weeks pregnant. Defense counsel also told the court that the prior day Dao showed him her left foot had "turned red" and he offered that it looked injured. The court pondered whether it would find Dao had voluntarily absented herself so to proceed. Her counsel advised the court he was prepared to proceed in her absence, remarking, "Ms. Dao is not a huge help to the defense anyway really."
After further discussion, Dao appeared. Her counsel informed the court that she had fallen down a stairway and landed on her head, and she had a "very large goose egg on her upper right side of her head" and though he was not a doctor, his assessment was she may have suffered a concussion. He asked that trial proceed without her so she could go to the doctor, and that Dao was "okay with that." The court asked Dao to confirm, and she responded, "Yes. Or you need me to be here? I just don't want to pass out on you guys." The court advised Dao, "I think it would be better if you're here. I mean, this is—you have a right to be here when the witnesses are testifying." Dao responded, "Okay. [¶] . . . [¶] If I can't handle it no more, I'll let [counsel] know." Trial resumed with testimony from Detective Robert Twardy, who inspected Dao and Zaldivar's luggage at the airport and found the incriminating equipment.
That afternoon, defense counsel advised the court that Dao had gone to the hospital because she "felt like her head was exploding" and was concerned she had a concussion. The court reminded counsel about the earlier discussions in which counsel indicated he was willing to proceed in her absence and felt Dao would not be disadvantaged. The court asked: "Had you specifically mentioned to her that we might well go ahead in her absence if she couldn't be here?" Defense counsel replied that he had, and, "She was cool with that. She was willing to go forward." The court found there was good cause to proceed with the trial. It advised the jury that Dao was dealing with medical issues and at her request it had excused her for the afternoon so she could tend to them. Trial proceeded with the continued testimony of Detective Twardy, as well as Zaldivar.
The following Monday, Dao was present for trial. That afternoon, she was sworn and testified in her defense. Her testimony continued into the next day. B. Contentions
Listing the health conditions she allegedly suffered during trial, Dao contends the trial court erred by failing to conduct a hearing sua sponte to determine whether she was mentally capable of defending herself, which violated her federal and state constitutional rights to due process and a fair trial. She maintains the trial court knew or even witnessed that she suffered from what she characterizes as "acute" medical conditions including brain cancer, seizures, severe pregnancy induced nausea and vomiting, and a concussion during trial, resulting in communication, memory and comprehension impairments, and thus the court had an obligation to ascertain whether she was mentally incapacitated in assisting her counsel in her defense. She asserts the record demonstrates "overwhelming evidence of [her] significant cognitive impairment" and thus the court's error in proceeding with trial was reversible per se.
We conclude on this record the trial court was under no duty to conduct such a hearing. "A trial court is not under a duty to order a hearing on a defendant's mental incompetence to stand trial, in the absence of a request, unless it has been presented with 'substantial evidence of mental incompetence,' i.e., 'evidence that raises a reasonable doubt on the issue.' " (People v. Alvarez (1996) 14 Cal.4th 155, 211; see also People v. Mickel (2016) 2 Cal.5th 181, 201-202.) Evidence of incompetence may come from several sources, including the defendant's demeanor, irrational behavior, and prior mental evaluations (People v. Rogers (2006) 39 Cal.4th 826, 847; People v. Murdoch (2011) 194 Cal.App.4th 230, 236), but it may also arise from physical conditions that affect a defendant's ability to confer with or assist counsel, testify, or understand the accusation, mechanics or consequences of trial. (See People v. Avila (2004) 117 Cal.App.4th 771, 777; People v. Berling (1953) 115 Cal.App.2d 255, 267.) In the latter case, courts have characterized the accused as having a right to be "mentally present" at trial, which if denied implicates due process rights and the constitutional and statutory right to appear and defend in person. (In re Dennis (1959) 51 Cal.2d 666, 672; Avila, at p. 777, in part citing Cal. Const., art. I, § 15; Pen. Code, § 1043.) Cases in which the defendant was determined to be not mentally present, however, "are rare and involve extreme situations." (Avila, at p. 779; citing Berling, supra, 115 Cal.App.2d at p. 267 [defendant held mentally absent where she repeatedly lost consciousness and was semiconscious during much of the trial without evidence of malingering, requiring multiple recesses and a lengthy continuance and causing the judge and prosecutor to question whether to continue]; People v. Williams (1961) 194 Cal.App.2d 523, 524 [defendant's testimony was "completely incoherent and irrational" showing he had "little, if any, touch with reality and quite obviously was unable to assist counsel in his defense"].) " '[A]bsent a showing of "incompetence" that is "substantial" as a matter of law, the trial judge's decision not to order a competency hearing is entitled to great deference, because the trial court is in the best position to observe the defendant during trial.' " (People v. Nelson (2016) 1 Cal.5th 513, 559-560.)
Though Dao had some language barriers in communicating and with others comprehending her speech, the record contains no such extreme situation. There is no evidence that Dao suffered from physical conditions that rendered her so unable to assist her counsel or understand the proceedings that going forward with the trial violated her state and federal constitutional rights to due process and a fair trial. The record contains no indication she was unconscious or semi-conscious during trial, or exhibited some altered perception of reality. Rather, it appears Dao took steps to avoid undergoing treatment that caused memory loss, or taking medication that caused her to "fall asleep." And, in all instances with the possible exception of Dao's allegedly pregnancy-induced nausea, the claims concerning Dao's medical conditions were related by counsel, not corroborated by documentary evidence or sworn testimony from Dao's medical doctors or a qualified expert. "A trial court is not required to order a competency hearing 'based merely upon counsel's perception . . .' " and though the court could seriously consider counsel's statements, " 'there is no good reason why it should control over other circumstances which the court may take into consideration.' " (People v. Avila, supra, 117 Cal.App.4th at p. 780.)
As for Dao's alleged fall and claimed head injury, no evidence was presented on the following day from any professional deeming her in urgent need of medical treatment or asserting she was unfit to proceed with the trial. (Accord, People v. Avila, supra, 117 Cal.App.4th at p. 780.) "That [Dao] may have been somewhat distracted by pain and other symptoms of physical distress does not establish incompetence or mental absence." (Ibid.) Even accepting counsel's assertions, it is apparent from the record that Dao's nausea and fall—though they caused one afternoon recess and an afternoon where Dao agreed trial could proceed in her absence while she sought medical treatment—did not prevent her from answering the court's and counsel's questions, conferring with her counsel, and testifying rationally and coherently in her defense. (Accord, People v. Rogers, supra, 39 Cal.4th at pp. 849-850 [defendant did not show mental absence from trial where despite memory loss he testified coherently and articulately, and nothing in his testimony would have caused the trial court to question whether he was able to understand the proceedings or cooperate with counsel].) As the People point out, Dao was able to identify mismarked exhibits to her own counsel during her direct examination.
Though Dao asserts she suffered memory loss from prior chemotherapy, our high court has "never . . . held that memory loss regarding the charged crime renders a defendant unable to assist in his or her defense." (People v. Rogers, supra, 39 Cal.4th at p. 849; citing People v. Frye (1998) 18 Cal.4th 894, 948-952 [testimony that defendant had a mild memory impairment making it difficult for him to recapture memory and to retain information, and also that he might have brain damage, was not substantial evidence of incompetence], disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Here, as in Rogers, "[t]here was no testimony suggesting defendant's memory loss affected [her] ability to understand the proceedings or assist [her] counsel." (Rogers, at p. 849.)
In sum, the trial court had no duty on this record to sua sponte order a hearing to assess Dao's competence, and we conclude the it fully satisfied its obligation to conduct its proceedings to accommodate any medical issues Dao may have experienced during trial. (Accord, People v. Avila, supra, 117 Cal.App.4th at p. 780.) For the same reasons, Dao cannot demonstrate her counsel was ineffective for failing to request a competency hearing where the circumstances did not warrant one. (See People v. Mickel, supra, 2 Cal.5th at pp. 199-200 [counsel is not ineffective for failing to raise the issue of the defendant's competence where there is not substantial evidence raising a doubt about competency].)
II. Proceedings in Dao's Absence
Dao contends the court violated her Sixth and Fourteenth Amendment rights to confront witnesses, due process and a fair trial, as well as her state statutory right to be present (§§ 977, 1043 ), by continuing trial proceedings on the afternoon of September 30, 2016, and permitting two important witnesses—Detective Twardy and Dao's coconspirator Zaldivar—to testify in her absence. Acknowledging her counsel had informed the court that she had a medical issue but agreed trial could proceed without her, she maintains any purported waiver on her part was not knowing or voluntary. Dao argues the court should have sua sponte postponed trial until she could return; had the court delayed proceedings, she could have informed her counsel about facts concerning how she and Zaldivar had packed their luggage to "provide a credible reason why the contraband was found amongst [her] clothes and personal effects and accordingly create substantial doubt in Detective Twardy's testimony that [she] had likely packed the contraband." According to Dao, the error was not harmless beyond a reasonable doubt because she was unable to assist her trial counsel in cross-examining both Officer Twardy and Zaldivar about critical facts. In an apparent alternative argument, Dao contends her counsel was prejudicially ineffective by not requesting a trial postponement, and also by attempting to waive her right to be present.
Section 977, subdivision (b)(1) provides that a defendant charged with a felony "shall be personally present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present, as provided by paragraph (2)." Section 977, subdivision (b)(2) provides language that may be used for a written waiver of presence. (See People v. Brown (2014) 59 Cal.4th 86, 117.) "[S]ection 1043, subdivision (a) states that 'the defendant in a felony case shall be personally present at the trial' except as otherwise provided. . . . [S]ection 1043, subdivision (b) states that a trial started in a defendant's presence may continue in his absence if, under subdivision (b)(1), a defendant is removed for 'disruptive behavior,' or, under subdivision (b)(2), in '[a]ny prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent.' " (Brown, at p. 117, italics omitted.)
We reject this latter argument. To make a meritorious claim of ineffective assistance on direct appeal, the record must contain affirmative evidence that counsel had no rational tactical purpose for an action or omission. (People v. Mickel, supra, 2 Cal.5th at p. 198.) There is no reason to disturb the presumption that counsel acted reasonably by relating Dao's consent to having trial continue in her absence while she sought medical help. Further, Dao merely argues her counsel was ineffective; she has not demonstrated she suffered any prejudice, as she must, as a result of counsel's alleged ineffectiveness. (In re Welch (2016) 61 Cal.4th 489, 514, 517.)
Both the state and federal Constitutions protect a criminal defendant's right to be present at trial. (People v. Espinoza (2016) 1 Cal.5th 61, 72; People v. Gutierrez (2003) 29 Cal.4th 1196, 1202.) " ' " 'Due process guarantees the right to be present at any "stage that is critical to [the] outcome" and where the defendant's "presence would contribute to the fairness of the procedure." ' [Citation.] ' "The state constitutional right to be present at trial is generally coextensive with the federal due process right." ' " ' " (People v. Delgado (2017) 2 Cal.5th 544, 568.) A defendant's right to be present is not absolute, however, and may be lost by consent. (Espinoza, at p. 72; Gutierrez, at pp. 1202-1203, citing Snyder v. Massachusetts (1934) 291 U.S. 97, 106.)
In People v. Espinoza, supra, 1 Cal.5th 61, the California Supreme Court observed that "the high court [in Diaz v. United States (1912) 223 U.S. 442, 455] has stated that 'where the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present.' [Citation.] Section 1043[, subd.] (b)(2) has adopted this majority rule as state law. [Citation.] Section 1043[, subd.] (b)(2) is similar to its federal counterpart, rule 43 of the Federal Rules of Criminal Procedure (18 U.S.C.), which, we note, the high court has found to be constitutional. [Citations.] 'In determining whether a defendant is absent voluntarily, a court must look at the "totality of the facts." ' " (Espinoza, at p. 72, italics omitted.) On appeal, we uphold the court's determination that the defendant was voluntarily absent if supported by substantial evidence. (People v. Concepcion (2008) 45 Cal.4th 77, 84.) And, Dao has the burden of demonstrating that her absence prejudiced her or denied her a fair trial. (People v. Delgado, supra, 2 Cal.5th at p. 569.)
Dao's contentions as to the requirements for a knowing and voluntary waiver are supported by People v. Connolly (1973) 36 Cal.App.3d 379, which was decided years before People v. Gutierrez, supra, 29 Cal.4th 1196 and relies on federal decisions not binding on this court. (People v. Collins (2010) 49 Cal.4th 175, 233.) Apart from that, the record shows that on the morning of September 30, 2016, the court specifically advised Dao of her right to be present when witnesses were testifying, contrary to Dao's contention otherwise. Dao then chose to remain for the beginning of Detective Twardy's testimony until the lunch break. When she did not return that afternoon in order to get medical care, her counsel advised the court he specifically told Dao trial might proceed in her absence, and informed it that she was willing to have trial go forward.
The court in People v. Connolly stated, "We have been unable to find any California case discussing the provisions of Penal Code section 1043, subdivision (b)(2)." (People v. Connolly, supra, 36 Cal.App.3d at pp. 383-384.) Thirty years later, People v. Gutierrez specifically addressed section 1043, subdivision (b)(2) and explained its relationship to section 977 as follows: "Section 977, subdivision (b)(1), provides that under certain circumstances, a defendant may execute a written waiver of the right to presence. Under that provision, a trial may commence even in the defendant's absence if the defendant executes a written waiver. (§ 977, subd. (b).) For example, a defendant may be absent when the jury is selected, but he cannot be absent from the entire trial without ever appearing. But when a trial has commenced in a defendant's presence, section 1043 applies. As relevant here, section 1043, subdivision (b)(2), provides that a defendant's voluntary absence does not prevent the trial from continuing. We perceive that these statutes address different concerns and do not conflict; rather, executing a written waiver and being voluntarily absent are treated as different events under these two statutes." (People v. Gutierrez, supra, 29 Cal.4th at pp. 1203-1204.) Gutierrez explained that where a defendant is present when a trial begins, "section 1043, subdivision (b)(2), governs, notwithstanding section 977, subdivision (b)(1)'s presence requirement." (Id. at p. 1204.)
The court did not err by accepting counsel's representation. A trial court need not "personally confront a defendant to determine whether the defendant desires to be voluntarily absent from court proceedings." (People v. Gutierrez, supra, 29 Cal.4th at p. 1205.) Rather, it may depend on reliable information, such as statements from court personnel, to determine whether a defendant has waived his or her right to be present. (Ibid.) If trial has commenced in the defendant's presence, as here, the court may continue the trial in the defendant's absence without first obtaining the defendant's written or oral waiver of the right to presence if other evidence indicates the defendant has chosen to be absent voluntarily. (Id. at p. 1206.) Here, as an officer of the court, defense counsel had an obligation to be truthful, and his representation was entitled to a presumption of truthfulness. (Rules Prof. Conduct, rule 5-200; Bus. & Prof. Code, § 6068, subd. (d); DCH Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 834 [court presumes, "unless proven otherwise, lawyers will behave in an ethical manner"].) Defense counsel's information was "reliable" and the court considered it when determining whether Dao waived her right to be present in the courtroom on the afternoon of September 30, 2016. (People v. Gutierrez, supra, 29 Cal.4th at p. 1205.) The court was not required to personally question Dao or corroborate her counsel's statement. (Ibid.) We conclude the court took reasonable steps to ensure it was Dao's choice to be voluntarily absent in the afternoon, when she had full knowledge Detective Twardy's testimony would continue. The totality of the record supports the court's conclusion that Dao was voluntarily absent and thus it "properly continued with trial [that day] in [Dao's] absence." (Id. at p. 1209.) Having reached this result, we need not decide whether her absence was prejudicial. (Ibid.)
III. Exclusion of Evidence of Dao's Allegedly Current Cancer Diagnosis or Brain Tumor
At trial, Dao sought to testify about her prior brain tumor and cancer diagnosis. The prosecutor objected on relevance grounds. The following discussion took place outside the jury's presence:
"[Prosecutor]: So the—the testimony that we're hearing now is that the defendant has a brain tumor. It's not relevant that she has a brain tumor. It's merely being elicited to stoke the sympathies of the jury. And if she were to testify that her brain tumor prevents her from knowing the difference from right or wrong or being able to perceive certain events, that would require expert testimony, and we have not received any expert testimony from any medical physician, treating physician that can verify that that is, in fact, the case. I'm merely concerned in avoiding tainting this jury with this impermissible line of questioning that's merely being used to stoke their sympathies.
"[Defense counsel]: I appreciate that and I wanted to keep it very limited, but it's only going to go to the fact as a result of her brain tumor and the surgery, she had lapses in her memory and all her memory—she can testify to that, that her memory was wiped out. And then over time it came back and now she's able to testify to these things quite clearly. It's part of the reason she took her photo album to Hawaii because she presently has a brain tumor, and she was afraid she was going to forget who her kids were, and that's all it's for. It goes to her ability to comprehend and remember. We're not claiming any mental defect effect to the crimes at all."
"The court: Now her memory has been restored basically?"
"[Defense counsel]: Yeah, it returned.
"The Court: So what's the relevance that sometimes she has a blackened memory?
"[Defense counsel]: Well, that's a forewarning to her that she lives with this as much as she's been diagnosed with another brain tumor, that she takes precautions to have things with her, like her scrapbook." The prosecutor asked the court to conduct an Evidence Code section 352 balancing test if it were presented with such testimony.
Following the sidebar, Dao testified that in 2009 she had been diagnosed with a brain tumor, which was surgically removed. She stated it affected her memory, explaining, "When I have seizures, the people that is taking—like watching me, tells me [sic] that I don't remember anything." She testified her memory had "not really" returned to her, but she admitted to remembering certain events. Dao testified that she lived with a concern that her memory could "go" at any time. Dao's counsel then asked whether Dao had presently been diagnosed with another brain tumor, but the court sustained the prosecutor's relevance objection to the question.
Dao contends the court violated her constitutional right to due process when it excluded her testimony that she had suffered a relapse of brain cancer and its impact on her memory, demeanor, and ability to comprehend questions posed to her. She maintains the lack of an explanation as to how her brain cancer affected her condition undermined her credibility and weakened her defense, and the court's exclusion of her testimony violated her rights to present a complete defense and testify on her own behalf. She argues the court also erroneously excluded relevant and "critical" evidence about the effects of her condition on her mental state, which affected her credibility. She maintains the jury was permitted and encouraged to infer that she was not truthful and accurate, and that the court should have given a jury instruction that would permit the jury to consider the effects of her medical condition on her ability to perceive, remember and understand, along with a limiting instruction to cure any potential prejudice.
The People respond that the proffered testimony was irrelevant, lacked foundation, and called for both hearsay and an expert opinion. They point out that in over 56 pages of testimony, Dao claimed a lack of memory only four times about insignificant details. They argue testimony that she had a current brain tumor was irrelevant as Dao did not claim any present disability from it or an inability to recall relevant events, nor did she offer any evidence or make an offer of proof that she had any active brain tumor at the time she committed her crimes, but rather disavowed any claim that the tumor had anything to do with them. Thus, the People argue, any evidence of a present cancerous tumor had no tendency in reason to prove or disprove any fact of consequence to the case. Additionally, they argue the trial court could have properly excluded her testimony as lacking foundation, hearsay, and improper opinion as she was not qualified to give an expert medical opinion as to such a diagnosis.
We review the trial court's evidentiary rulings, including whether evidence is more prejudicial than probative, under the deferential abuse of discretion standard. (People v. Clark (2016) 63 Cal.4th 522, 572.) " 'The exercise of discretion is not grounds for reversal unless " 'the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " ' " (Ibid.) Further, we assess the trial court's ruling, not its reasoning, and affirm if it is correct on any ground. (People v. Brooks (2017) 3 Cal.5th 1, 39; People v. Zapien (1993) 4 Cal.4th 929, 976 [" ' "No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for the wrong reason. If right upon any theory of law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion" ' "].)
Dao has not shown an abuse of discretion here. The premise of her argument is not supported by the record in that Dao's testimony in her defense was not replete with memory lapses, as she tries to suggest. Some of the testimony she references reflected her language barrier issues (not knowing what to call an escalator or the term "catch a ride"), some involve innocuous details (like the time she and Zaldivar arrived at the airport), and the import of other testimony is mischaracterized. The record shows Dao understood the vast majority of counsel's questions and answered them directly. Nor did Dao or her attorney claim that her memory was presently "significantly damaged" due to a current cancer diagnosis or tumor. Counsel's initial pretrial remarks to the court focused on Dao's language issues caused partly by her upbringing and partly by her previous 2009 bout with cancer. At the time of the sidebar before the court's relevance ruling, defense counsel specifically advised the court on the matter that though Dao's memory had been "wiped out" after her 2009 chemotherapy, it "then over time . . . came back and now she's able to testify to these things quite clearly." The record of Dao's own testimony reflects that to be the case. Thus, the trial court correctly ruled that Dao's present cancer, if any, either had no "tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action," including Dao's credibility, or that the undue prejudice of such evidence substantially outweighed its probative value. (Evid. Code, §§ 210, 352.)
For example, Dao argues that during trial she "didn't understand all of Zaldivar's testimony regarding his use of fraudulent names while in Mexico." In the cited portion of her testimony, Dao was asked whether she recalled Zaldivar's testimony the day before that he not only used the identity of other persons but became those persons, and replied she could not. The following exchange occurred: "[Prosecutor:] And then I said, well, are we—are you Misael Zaldivar today, and he got a little upset with me for taking that line of questioning for him. You don't remember when I was speaking with him about that? [¶] [Dao:] I remember that he was getting upset, but I didn't pay attention to what [sic]. [¶] [Prosecutor:] Okay. And he also said that when he was down in Mexico with you on this trip, that he was using the fraudulent identification of one of the victims, but he couldn't remember which one. Do you remember him saying that? [Dao:] I don't recall, but I just know that he admitted to you or him that he was using someone's name." The exchange reflects that Dao was not paying close attention, but was able to remember basic points about Zaldivar's testimony. In another cited portion of her testimony, after her counsel objected that a question misstated evidence, Dao stated she did not understand the prosecutor's question, but when the prosecutor slightly rephrased it, she answered it directly. In another portion of her testimony Dao could not remember the date she was arrested, but she recalled it was several weeks after Zaldivar's arraignment, she was driving in her friend Pemperton Tran's car on Orange Avenue, and the police officer turned his lights on and pulled her over for having no front license plate.
Finally, we agree with the People that any testimony by Dao concerning a present cancer diagnosis would be without foundation, as she is not a qualified medical expert, and it would otherwise be hearsay to the extent she relied on her doctors' assertions. Though that was not the court's stated ground for exclusion, as we have stated, we look to the correctness of the its ruling (People v. Brooks, supra, 3 Cal.5th at p. 39), and on that ground alone it did not abuse its discretion in excluding the testimony.
IV. Flight Instruction
The court instructed the jury on the issue of flight as follows: "You may be urged to by the prosecution to [sic] find that Ms. Dao engaged in certain conduct that you feel is reasonably characterized as flight. So if you find that she fled immediately after a crime was committed, that conduct may . . . show she was aware of her guilt. If you conclude that she fled or attempted to flee, it's up to you to decide the meaning and importance of that conduct; but, however, evidence that she fled cannot by itself prove her guilt of any particular crime."
The court's instruction was based on CALCRIM No. 372, which provides: "If the defendant fled immediately after the crime was committed, that conduct may show that she was aware of her guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself." --------
A flight instruction is proper if there is evidence from which the jury could reasonably infer that the defendant's departure from the crime scene was motivated by an awareness of guilt. (People v. Cage (2015) 62 Cal.4th 256, 285.) Flight does not require " ' " 'the physical act of running nor the reaching of a far-away haven' " ' " (ibid.), but it does require "a purpose to avoid being observed or arrested." (Ibid.; accord, People v. Leon (2015) 61 Cal.4th 569, 607.) The facts of each case determine whether it is reasonable to infer that flight shows consciousness of guilt. (See People v. Mason (1991) 52 Cal.3d 909, 941.)
Dao contends there was insufficient evidence of conduct amounting to her flight, either from the airport or the courthouse on the day of Zaldivar's arraignment, that would permit a jury to infer she left to avoid being observed or arrested. She focuses on the evidence that at the airport after Zaldivar's detention she was let through the security checkpoint and permitted to proceed to her gate but missed her plane after waiting for Zaldivar, then shopped in a gift store before leaving. She maintains there is no evidence she was aware she was being pursued as the harbor police did not announce their search in any way, stop or question other personnel, or run through the terminal in pursuit. As for her leaving the courthouse two days later, Dao argues her voluntary entry into a place with a large law enforcement presence demonstrated she was not attempting to evade arrest, and that she left only because her companion was called for a job. She further argues the instruction was unwarranted as to her departure from the courthouse because it was not close temporally or geographically to an alleged crime or crime scene. According to Dao, the error violated her Fifth and Fourteenth Amendment rights to due process because no facts supported the inference that she more likely than not fled the scene, and reversal is warranted under either the Chapman (Chapman v. California (1967) 386 U.S. 18) or Watson (People v. Watson (1956) 46 Cal.2d 818, 836) standard of prejudice given the People's emphasis on the issue in closing arguments and the weakness of the case against her.
We conclude the instruction was warranted. As the People point out, Dao and Zaldivar's trip to Hawaii itself could constitute evidence of flight, as they attempted to leave one day before Zaldivar's arraignment after Dao had bailed him out of jail and was told he would have to appear in court, Zaldivar travelled under false identification, they had one-way tickets, and Dao packed all of her clothing. Further, a jury could reasonably infer that Dao's act of leaving the airport after being separated from Zaldivar at the security checkpoint evidenced an awareness of guilt on her part. Dao was unwilling to wait for Zaldivar at the checkpoint after he was detained by airport security with false identification, and after she claimed to have missed the plane, she neglected to return to security to check on his status. Evidence that her luggage contained incriminating equipment supports a conclusion that she went to the airport with guilty knowledge. That Dao abandoned her travel companion to instead enter a gift shop permitting her to be concealed from security officers, then left the airport, constitutes ample reason to conclude she knew Zaldivar had used false identification, and that her departure was under circumstances suggesting the movement was to avoid observation or arrest, and motivated by a consciousness of guilt. (Accord, People v. Cage, supra, 62 Cal.4th at p. 285 [evidence that defendant ran from the scene of his crimes only when an alarm sounded, though he then returned to his apartment where he was later arrested, was sufficient evidence of flight; CALJIC No. 2.52, the predecessor instruction, did not impermissibly reduce the prosecution's burden of proof or violate defendant's constitutional rights].) Though a jury could infer innocent intent on Dao's part or reasons for her departure, the evidence permits other conclusions to be drawn favoring the instruction. Dao's characterization of the evidence ignores reasonable conclusions to be drawn from her actions.
We reach the same conclusion as to Dao's departure from the courthouse two days later. When a harbor police detective with displayed credentials caught Dao's eye, Dao looked down, then less than two minutes later, Dao and Nguyen left. We disagree with Dao's assertion that there was no evidence she "rushed, hurried or ran out" of the area, as a jury could reasonably infer her departure was sudden, and hurried to avoid arrest. Furthermore, that this occurred two days after the airport incident does not preclude the flight instruction, which does not require a " 'defined temporal period within which the flight must be commenced . . . .' " (People v. Leon, supra, 61 Cal.4th at p. 607.) Because courts do not specify any defined period related to an offense during which a defendant's flight must occur, we reject Dao's argument that the instruction was unwarranted because there was no departure "immediately after a crime was committed."
Finally, we reject Dao's contention that the instruction violated her federal due process rights and unfairly advantaged the prosecution. The argument is premised on her claim that there was no evidence from which a rational juror could infer she fled the airport or courthouse, an assertion we have rejected above. To the extent Dao suggests the very nature of the instruction lessened the People's burden of proof or violated her due process rights because one cannot generally conclude guilt is more likely than not to flow from flight, we reject the argument on the same grounds other courts have rejected it. (See People v. Price (2017) 8 Cal.App.5th 409; People v. Paysinger (2009) 174 Cal.App.4th 26; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154.) As both Price and Hernandez Rios point out, the California Supreme Court rejected an analogous challenge to CALCRIM No. 372's predecessor, CALJIC No. 2.52, when the defendant argued the instruction created an unconstitutional permissive inference because it could not be said with substantial assurance the presumed fact is more likely than not to flow from the proved fact on which it is made to depend. (Price, at pp. 455-456; Hernandez Rios, at p. 1159, citing People v. Mendoza (2000) 24 Cal.4th 130, 179-180, superseded by statute on other grounds as stated in People v. Brooks, supra, 3 Cal.5th at p. 63, fn. 8.) According to Mendoza, " '[a] permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.' " (People v. Mendoza, at p. 180.) Under that standard, permitting a jury to infer, if it chooses, that a defendant's flight immediately after commission of a crime indicates a consciousness of guilt, does not violate due process. (Ibid.; Hernandez Rios, at p. 1158; Price, at p. 456.)
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: NARES, Acting P. J. HALLER, J.