People v. Ho (In re Ho), B279939
| Decision Date | 11 June 2019 |
| Docket Number | B291923,B279939 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. AMY SAM HO, Defendant and Appellant. In re AMY SAM HO on Habeas Corpus. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA395107)
APPEAL from a judgment of the Superior Court of Los Angeles County. George G. Lomeli, Judge. Reversed and remanded to the trial court.
Eisner Gorin, Alan Eisner and Dmitry Gorin, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Cora Sam (Sam), a 60-year-old woman with profound mental retardation, developed pneumonia and severe pressure sores and then died while in the care of her sister, Amy Sam Ho (appellant). Appellant was charged with murder (Pen. Code, § 187, subd. (a); count 1)1 and elder abuse (§ 368, subd. (b)(1); count 2). The jury found appellant guilty. She was sentenced to 15 years to life on count 1, and eight years on count 2. The sentence on count 2 was stayed pursuant to section 654.
Appellant appeals, arguing that the evidence of implied malice and causation was insufficient to support the convictions,and that the trial court should have suppressed statements she made to the police. Separately, appellant filed a petition for writ of habeas corpus, case No. B291923, asserting that she received ineffective assistance of counsel at trial.2
Because we conclude that trial counsel provided ineffective assistance and prejudiced appellant by failing to put on a mental health defense, offer the testimony of a pathologist, and object to instructional error pursuant to People v. Kurtzman (1988) 46 Cal.3d 322 (Kurtzman), we must reverse the judgment. This, however, does not necessarily end the case. The judgment was supported by substantial evidence, and therefore the People have the option of trying the case a second time. (Burks v. United States (1978) 437 U.S. 1, 11 []; People v. Morgan (2007) 42 Cal.4th 593, 613.) In the new trial, if any, the People may once again rely upon the statements that appellant made to the police.
FACTS
Prosecution Evidence
Sam's Age; Her Limits and Needs
Sam was born in July 1951. She had a cerebral malformation that impacted her mental abilities. At 55 years old, she had an IQ of 9 and mental age of 18 months. She was inthe profound range of mental retardation; she could walk but not run or jump. A person at her level might be able to hold a spoon and try to feed herself, or scribble with a crayon or pencil. She needed daily assistance with dressing, undressing, hygiene, bathing, and toileting. Sam wore diapers.
Sam's Living Arrangements Over Time; Appellant's Interaction with Care Providers
The State of California covers 100 percent of the cost of care facilities for people like Sam.
Records establish that Sam resided in a care facility from 1984 to 2002. She briefly lived with appellant from November 15, 2002, to April 1, 2003. After that, she went to a different care facility until December 19, 2006, and then back to appellant's home until April 4, 2007. Sam once again resided in a care facility from that date until June 5, 2007, when she lived with appellant for four days.
From June 9, 2007, to September 11, 2008, Sam was staying in yet another care facility. While Sam lived there, appellant was demanding when dealing with the social service designee and, at one point, yelled at her. Nhon Ly (Ly), a social worker employed by the East Los Angeles Regional Center, was Sam's service coordinator from June 2007 to August 2008. Appellant wanted Ly to find a new placement for Sam. Ly found multiple vacancies. However, Ly was never able to meet with appellant at her home to complete an Individual Placement Program (IPP). When Ly tried to schedule a visit, appellant would call and say she was busy. Even though Ly referred Sam to numerous facilities, she was never placed because appellant found something wrong. Though Ly offered respite services that would fund people to help appellant care for Sam, appellantnever asked to take advantage of those services. After Ly mailed information to appellant about In-Home Supportive Services (IHSS), a state funded program to temporarily help a family pay for services such as personal care, housecleaning, meal preparation, laundry, and protective supervision. Appellant told him to stop sending IHSS information. On September 11, 2008, appellant removed Sam from the facility on a home pass and said they were not coming back.
From that point on, Sam lived with appellant.
In January 2009, George Rodriguez (Rodriguez) became the Eastern Los Angeles Regional Center service coordinator for Sam. Appellant informed Rodriguez that caring for Sam was causing her stress due to the economic, physical and psychological burdens. He forwarded the names of facilities with vacancies to her. Thereafter, he regularly provided appellant with the names of facilities as well as relevant contact information. Sam was denied acceptance for placement at various facilities. Rodriguez spoke to the administrators and it appeared she was denied acceptance due to a pattern of appellant wanting to dictate some of the terms of care. Rodriguez explained that an IPP must be updated annually to facilitate the placement of a client in a care facility. The IPP documents the planning for services, the family's wishes, the preferred living arrangements, and the client's current level of functioning. Appellant failed to meet with Rodriguez at any point from 2009 to 2011 to complete an IPP. Rodriguez provided appellant with information about IHSS.
Appellant wrote Rodriguez expressing the need to find a placement for Sam because appellant had carpal tunnel syndrome, a condition that was aggravated by caring for Sam. Atone point, appellant wrote him a letter stating that taking care of Sam had taken a toll on appellant's life, and also stating,
During July 2009, Cecilia Cuevas (Cuevas) met with appellant and Sam regarding a vacancy at a care facility. Appellant indicated that she wanted Sam to have a specific type of food. Cuevas explained that everything the facility gave to a client has to be "doctor's orders, it has to be approved by the dietician and the consultants[.]" Moreover, appellant wanted to sleep with Sam on occasion—either next to her, or somewhere else. Cuevas explained that the facility did not allow family members to sleep inside the facility. When appellant was informed that a facility doctor would have final say on Sam's diet, appellant said, "'I don't think it's going to work.'" Even though Sam met the requirements for admission, Cuevas would not have admitted her because appellant wanted Cuevas to change the policies and procedures of the facility.
Subsequently, appellant called Cuevas almost every day for a week. Cuevas provided appellant with referrals for in-home nursing.
In late 2009, Pamela Benson (Benson), the director of a different facility, met with Sam and appellant. Appellant proposed a specific diet and said she would prepare it for Sam. Benson explained that the facility had a dietician that placed each client on an individual diet based on the client's needs. Appellant startled Benson by saying, "'No, no, no, she has to eat this food.'" Benson had been in the business for almost 20 years, and she had never been approached this way by a familymember. She told appellant, "'No, you can't come in here and prepare food.'" According to Benson, appellant said she wanted to come any time of day or night, which was "a problem situation." Sam was a good fit for the facility. But Benson was nervous about accepting Sam because of appellant. After a day of considering the matter, Benson turned Sam down.
In early 2010, Lillian Sestiaga (Sestiaga) of another facility met with Sam and appellant. Appellant was adamant that Sam be given a fish and beans diet, which Sestiaga found "a little odd" because it "didn't seem . . . that there was anything medically wrong with [Sam] that she needed to follow" such a diet. Appellant wanted Sam's food pureed. Sestiaga thought Sam was a good fit for the facility but did not believe the diet specified by appellant could be accommodated. After consulting with a registered nurse and dietician, Sestiaga denied Sam admission.
Sam's medical history from 2003 to 2010
Sam was a patient of a dermatologist from March to December 2003. Appellant transported Sam to and from her appointments. On Sam's first visit in 2003, the dermatologist removed a benign skin growth called dermatrofibroma. During subsequent visits, he treated her for dry skin and a related skin eruption, for patchy, inflamed areas, and for common benign growths. He never treated Sam for pressure sores. When he became aware that appellant was treating Sam's skin conditions with colloidal silver, a popular over the counter product, he advised appellant not to use it because he did not think that it was providing additional value.
A different dermatologist saw Sam in April 2006 and treated her for minor skin problems such as allergy, rash, follicle infection and maybe fungus on the feet and nails. He prescribedSilvadene and Centany creams to treat...
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