People v. Jae Jeong Lyu, B232192.
| Decision Date | 28 February 2012 |
| Docket Number | No. B232192.,B232192. |
| Citation | 138 Cal.Rptr.3d 260,12 Cal. Daily Op. Serv. 2359,2012 Daily Journal D.A.R. 2670,203 Cal.App.4th 1293 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. JAE JEONG LYU, Defendant and Appellant. |
OPINION TEXT STARTS HERE
Edward H. Schulman, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Idan Ivri, Deputy Attorney General, for Plaintiff and Respondent.
Jae Jeong Lyu was convicted after a court trial of sexual penetration by a foreign object of an unconscious person, oral copulation of an unconscious person, and sexual battery. He appeals, arguing that his convictions of sexual penetration and oral copulation of an unconscious person are not supported by substantial evidence. We agree.
An information filed July 8, 2010 charged Lyu with two counts of sexual penetration by a foreign object of an unconscious person, in violation of Penal Code section 289, subdivision (d),1 two counts of oral copulation of an unconscious person, in violation of section 288a, subdivision (f), two counts of sexual battery by fraud, in violation of section 243.4, subdivision (c), and four counts of sexual battery, in violation of section 243.4, subdivision (e)(1). The information alleged two separate incidents, each against a different victim, on November 8, 2009 against Trish B.,2 and on April 7, 2009, against Shanah R. Lyu pleaded not guilty to all counts.
During Lyu's jury trial, the court dismissed the two counts of sexual battery by fraud. The court declared a mistrial on October 29, 2010, when the jury was unable to reach a verdict on the remaining counts. Both parties agreed to a court trial before a different judge.
Just before the court trial, the court granted Lyu leave to represent himself, with his attorney from the jury trial as standby counsel. At trial, Trish B. testified that on November 8, 2009, she went to a massage parlor in Los Angeles called Man Han Tang for a foot massage. She had been there once before. She understood that during a foot massage she would sit in a chair with her feet in a bucket of water and lean forward, to get a massage on her back, neck, shoulders and feet, and expected it to cost $20. She waited for a massage therapist to arrive, and then was directed to go with Lyu to get the massage. They spoke briefly in English.3 There were five other people in the front room, giving foot massages to clients in reclining chairs.
Trish B. sat in a chair and Lyu began to massage her. Trish B. taught yoga and fitness classes and needed regular massages, so she was used to the process and noticed nothing unusual at first. She had been teaching many classes and was unable to be comfortable or to relax in the sitting position, so either she or Lyu suggested a lay-down massage, and they moved to the back room. The back room was open and contained a series of massage beds. A woman was giving a man a massage on one of the beds, and the lights were on.4
Trish B. undressed underneath a privacy sheet and lay face down, covered with the sheet. She had told Lyu her lower back was sore. Lyu massaged her right leg (which Lyu had exposed so it could receive the massage), going up and down the entire leg a couple times, and twice inserted one or two fingers inside her vagina. Trish B. hit Lyu's torso and said, “ ‘no’ or ‘what are you doing,’ ” and he scurried around the bed and “did something else and just started acting really weird.” She “froze” and was frightened, because she did not know what Lyu was capable of, and she thought: “How do I get out of here safely?” Trish B. turned over onto her back, thinking about how to get her things, then Lyu moved to the end of the bed where her feet were, moved the sheet back, and put his mouth on her vagina (“the next thing is his mouth is down there”). Trish B. sat up and told Lyu to leave the room, but he stood there and looked at her without saying anything while she got dressed, keeping herself covered with the sheet. Trish B. was in “pure fear,” wondering if Lyu would follow her out to her car, and concerned only about getting out of there safely.
Lyu told Trish B., “I give you free two-hour massage” and picked up her purse, putting his “ ‘Healing Hands' ” business card inside. She grabbed her bag and Lyu walked her out to the front desk with his hands “clenching down into [her] shoulders.” Trish B. did not say anything to anyone in the front lobby, because she just wanted to pay and “get out of [there]” without hassle or conflict. She did not have enough cash, and she took out her card to pay, but the woman told her it was cash only and there was an ATM down the street. Trish B. thought, “there's no way I'm leaving here and coming back in here.” The massage was about $30, and she only had $25 or so in cash. She pulled out what she had, and Lyu paid for the remainder of the massage and said, “I got this, I got it.” Trisha B. walked out, closed the door behind her, went to her car and left, driving away as fast as she could. She was still in shock, and when she got onto the freeway she began to cry and called a friend. She wanted to forget what had happened, but she thought about the other women to whom Lyu might do the same thing, and three days later she called the police.
Trish B. denied having gone to Man Han Tang for a sexual massage, conveying any interest in sexual contact with Lyu, masturbating or moaning in Lyu's presence, asking him to put his fingers in her vagina, or asking for or consenting to his mouth on her vagina.
Trish B. spoke to Los Angeles Police Department (LAPD) Detective Shumaker and told him what had happened. On December 2, 2009, Detective Shumaker asked her to make a “pretext call” to the number on the business card, to get Lyu to make an admission. When someone picked up, she recognized Lyu's voice. The tape of the phone call was played in open court. Trish B. told Lyu, who said he remembered her, that she wanted another massage, but first she wanted an apology for putting his fingers in and his mouth on her vagina. Lyu apologized for both and promised to give her just a massage. They agreed to meet at Man Han Tang.5 Lyu promised, “I'm careful for you,” and “I don't want any motion if—if you don't want.” He remembered touching her before, and when she said she was upset when she left he said, Lyu agreed that Trish B. had not asked for that contact, and had pushed him away before he put his mouth on her. He remembered that he had done that, and stated: “I said I apologize to you.” 6
After the prosecution rested, Lyu requested that his standby counsel represent him, and the court granted the request. Defense counsel moved to dismiss the counts charging sexual penetration by a foreign object on an unconscious person and oral copulation of an unconscious person, because The court denied the motion.
The parties stipulated that while Lyu was being transported to jail, he stated, “ ‘I touched her [Trish B.] sexually,’ ” and explained: “ ”
Lyu testified in his own defense. He worked part-time as a masseuse, and received a telephone call on November 8 to come to Man Han Tang, where Trish B. was assigned to him for a foot massage. When during the foot massage Trish B. complained of pain in her right thigh, he recommended a combination massage and they moved to a room with a bed. Lyu asked Trish B. to change her clothes, but she did not because she thought the clothes supplied by the massage parlor were dirty. She got off the bed and undressed. Trish B. then lay down on her stomach and Lyu covered her with a folded towel.
When Lyu was massaging Trish B.'s thigh, she stretched her legs “so that [his] hand could be directed to her private area,” and started to moan. Lyu asked in English. “ ‘May I help you?’ ” and she did not answer. He asked again and Trish B. said, “yes,” and “somehow guided [his] hand so it could be directed to the area.” While Lyu had his finger inside Trish B.'s vagina, the owner of the shop came in the room. Lyu told Trish B. to be quiet. The owner asked Trish B. if she was okay, and she said yes. The owner left the room and Lyu “went on with the thing that [he] was doing,” while Trisha B. rubbed his crotch to arouse him. Trish B. then had an orgasm, and Lyu orally copulated her.
Earlier during the massage, Trish B. told Lyu he had to give her $300. Lyu said she had to give him $300 “ ‘if you enjoy with me.’ ” He offered her a two-hour free massage and put his business card into her purse.
After Lyu orally copulated her, Trish B. got up, hugged him, and kissed him on the cheek to thank him. Lyu told her to put her clothes on and went out to wait for her at the counter. After she came out of the back room, she said, “ ‘Fantastic.’ ” After the owner told Trish B. that she could not pay with a credit card, there was a dispute about the price of the massage. Trish B. paid the full price and gave Lyu a $4 tip. Trish B. then went to the bathroom. When she came out she asked Lyu if he knew a yoga instructor, and then she left.
Trish B. called Lyu on December 2, 2009, and told him she wanted to meet at Man Han Tang for another massage. He did not understand all of the phone conversation, but did understand that Trish B. wanted a two-hour free massage and wanted him to make an apology first. While Lyu was waiting in the Man Han Tang parking lot for Trish, he was arrested.
The trial court found Lyu not guilty of the counts relating to...
To continue reading
Request your trial