People v. Huynh, D060327

CourtCalifornia Court of Appeals
Writing for the CourtHALLER
Citation151 Cal.Rptr.3d 170,212 Cal.App.4th 285
PartiesThe PEOPLE, Plaintiff and Respondent, v. Philong N. HUYNH, Defendant and Appellant.
Decision Date10 April 2013
Docket NumberD060327

212 Cal.App.4th 285
151 Cal.Rptr.3d 170

The PEOPLE, Plaintiff and Respondent,
Philong N. HUYNH, Defendant and Appellant.


Court of Appeal,
Fourth District, Division 1, California.

Filed December 20, 2012
Review Denied April 10, 2013
Certified for Partial Publication.

APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge.
Affirmed. (Super.Ct. No. SCD222832)
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.


[212 Cal.App.4th 290]

A jury convicted Philong N. Huynh of first degree felony murder (Pen.Code,1§ 189), two counts of sodomy of an intoxicated person (§ 286, subd. (i)) and two counts of oral copulation of an intoxicated person (§ 288a, subd. (i)). The jury also found to be true special circumstance allegations that the murder was committed during the commission of sodomy (§ 190.2, subd. (a)(17)(D)) and during the commission of oral copulation (§ 190.2, subd. (a)(17)(F)). The trial court sentenced Huynh to an indeterminate term of life in prison without the possibility of parole plus a consecutive determinate term of 10 years.

Huynh appeals, contending (1) there was insufficient proof of death by criminal agency; (2) insufficient evidence supported the sodomy and oral copulations convictions involving the murder victim; (3) the jury instructions on first degree felony-murder did not properly address causation; (4) the trial court erroneously instructed the jury on other sex crime evidence; (5) Evidence Code section 1108 is unconstitutional; (6) the court erred by refusing to give lesser-included-offense instructions on the sodomy and oral copulation counts involving the murder victim; (7) the court erred by refusing

[212 Cal.App.4th 291]

to instruct the jury on second degree murder; (8) the court erred by not instructing the jury sua sponte on involuntary manslaughter; (9) the court erred by allowing a SART nurse to testify about a sexual assault examination conducted by another SART nurse; (10) the court violated his right to confront adverse witnesses by admitting the preliminary hearing testimony of the nonhomicide sexual assault victim; (11) the court erred by refusing to advise the jury that the nonhomicide sexual assault victim refused to attend the trial; and (12) reversal is required because of the cumulative nature of the errors.

Prosecution's Case

In January 2008, Dane Williams, 23, started working for Hurley International, [151 Cal.Rptr.3d 176]a clothing company based in Orange County. By all accounts, Williams was heterosexual. The company was taking part in an industry trade convention in San Diego toward the end of the month. Williams drove a company bus to San Diego on the Wednesday before the convention was to start. On the night of January 25, a Friday, Williams went to nightclubs/bars with his friends and coworkers in the Gaslamp District of downtown San Diego. Brandon Guilmette, who was a long-time friend of Williams and a Hurley coworker, left the group at 1:00 a.m. to return to the Marriott Hotel. According to Guilmette, Williams had several cocktails, but was “pretty put together still.” Others in the group also said that Williams appeared in control of himself at that time despite his drinking.

However, about an hour later, a Hurley senior designer saw Williams in front of the Marriott Hotel and he appeared “discombobulated” or “[d]efinitely intoxicated.” About 2:20 a.m., a woman saw Williams, who was alone and swaying, in front of the hotel. The woman, who did not know Williams, said he appeared to be “drugged”; he was unbalanced and fell face down. When the woman attempted to assist him, Williams stood up, leaned against a wall, and then staggered off. The woman said Williams was unable to speak.

Williams did not return to his hotel room and did not show up for work the next day.

Williams's body, which was lying face down and rolled in a blanket, was found in an alley in the Mid–City area on Tuesday, January 29, at about 6:30 a.m. Williams was wearing the same clothes he had been wearing the night he disappeared, but his underwear and his watch were missing. Also, a beanie cap was on top of Williams's head; Williams had not been wearing the beanie cap the night he disappeared.

[212 Cal.App.4th 292]

Semen belonging to someone other than Williams was found on his shirt. Dog hairs were on the blanket that was wrapped around Williams's body. A hair found on Williams's shoe was not his. Carpet fibers were on Williams's clothing. Police saw tire tracks from a van next to the body.

On January 30, Deputy Medical Examiner Othon Mena, M.D., performed an autopsy on Williams. Williams had been dead for one to three days before his body was found. The autopsy revealed lividity in Williams's upper chest area, and a “significant” amount of blood and fluid in Williams's lungs and airways. Williams's lungs were congested and weighed twice their normal weight, which can suggest cardiac death or death from asphyxiation. However, there was no evidence of strangulation, no physical signs of asphyxiation and no evidence of a cardiac event. The autopsy also disclosed a 60 percent blockage of one of the main arteries leading to Williams's heart, but Dr. Mena opined that this narrowing alone was not the cause of Williams's death. There was no trauma to Williams's anus or rectum. Toxicology tests results showed a blood alcohol level of between 0.17 percent and 0.21 percent. Williams's blood also contained a therapeutic level (0.36 mg/L) of diazepam, a benzodiazepine drug.2 Trace amounts of diazepam were also found in Williams's gastric contents. According to Mena, the levels of alcohol and diazepam were insufficient to [151 Cal.Rptr.3d 177]have caused Williams's death, but played a role in the death. (See fn. 2, ante.) 3

Dr. Mena could not determine the cause or manner of Williams's death and listed them as “undetermined” in his autopsy report.4 At trial, Mena opined the most likely cause of death was asphyxiation by a person or from the position Williams was in.

Williams's death remained unresolved for 18 months.

On Saturday, June 6, 2009, Jeremiah R., a heterosexual Navy corpsman who was recently assigned to Camp Pendleton, visited downtown San Diego.5 While walking around the Gaslamp District, Jeremiah encountered

[212 Cal.App.4th 293]

Huynh, who asked for a cigarette and introduced himself as “Phil.” Huynh asked Jeremiah if he wanted to go to “strip clubs” and offered to pay for a lap dance, but Jeremiah declined. When Huynh mentioned he had a rental car and asked if Jeremiah wanted to go somewhere else, the corpsman said he wanted to see the local beaches. Before arriving at Ocean Beach, Huynh bought two pint-size bottles of cognac at a liquor store. Jeremiah consumed a pint of cognac while at Ocean Beach. Huynh told Jeremiah that he had recently moved to San Diego after a divorce. Jeremiah assumed Huynh was a heterosexual by the way he acted.

When Jeremiah mentioned he had a headache, Huynh gave him one or two pills from a Tylenol bottle, which was inside the car. Huynh then drove to Mission Beach with Jeremiah. Other than playing basketball at Mission Beach, Jeremiah's recollection of the rest of the night was hazy. He remembered he felt intoxicated, but did not think it was from the cognac.

Jeremiah agreed to go to Mexico with Huynh, but had no recollection of going to Mexico. Jeremiah believed he went to Mexico because a photo in his cell phone showed him standing under a “Mexico” sign on the Mexican side of the border.

Jeremiah remembered going to Huynh's residence, where he watched television in the living room before “crash[ing]” on the bed in Huynh's bedroom; Jeremiah was fully clothed. When Huynh tried to wake him up, Jeremiah said he wanted to go back to sleep. At the time, Jeremiah also heard Huynh talking to someone else.

The next day—Sunday, June 7—Jeremiah was back at Camp Pendleton, but he did not recall how he arrived there, other than being on a bus and hitting his nose when the bus driver made a quick stop. Jeremiah was missing his underwear and his pocket knife. Jeremiah felt “strange” and disoriented, and he was slurring his words. A supervising corpsman took Jeremiah to the emergency room on the base. The emergency room doctor ordered a drug screen, which came back positive for benzodiazepine. Because he was concerned that Jeremiah might have been drugged by someone, the doctor told the nursing staff to contact the San Diego Police Department.

[151 Cal.Rptr.3d 178]On June 8, Jeremiah underwent a SART examination, which showed (1) his anus had abrasions and lacerations, including two open wounds, and (2) the end of the anal canal was red, which is not normal, and swollen, which indicated trauma to the rectum. The SART nurse flossed Jeremiah's teeth and took swabs from his mouth, anus, rectum, penis and scrotum; these were provided to the police, along with Jeremiah's blood and urine samples.

A police forensic analyst ascertained that the scrotal, anal and rectal swabs, as well as dental floss from Jeremiah's mouth, contained semen that did not

[212 Cal.App.4th 294]

belong to Jeremiah. Based on the semen, a DNA analyst generated a DNA profile, which was placed in a law enforcement database. This DNA profile matched the foreign DNA profile of the semen found on Williams's shirt 18 months earlier.

The level of clonazepam in Jeremiah's blood was 33 nanograms per milliliter. A therapeutic blood level of clonazepam is between 16 and 30 nanograms per milliliter. However, the metabolite (breakdown) of clonazepam was 128 nanograms per milliliter. Therefore, if Jeremiah had ingested the drug around midnight of June 6, the blood level of the drug would have been...

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